Volume 44 — Maine Reports

This is an action of Trespass, brought against the defendant, who was sheriff, for the act of one Bicknell, alleged to he his deputy, in taking and carrying away the goods of the plaintiff, and comes before the full court on Exceptions to the rulings of Appleton, J., and on Motion to set aside the verdict, which was for the plaintiff.

This action, which is debt on a poor debtor’s bond, comes, before the full court on Report of Appleton, J. The plaintiff introduced a paper purporting to be a true copy of the record of the magistrates, before whom the debt- or commenced his disclosure, on July 6, 1851, and an alias execution with the officer’s return thereon.

<p>Wliero both parties to a contract have violated the law in making it,, neither party can invoke the aid of the law to repudiate it.</p> <p>Where a contract is fully executed on the Sabbath, and the property passes,, the sale is nevertheless valid.</p> <p>A deed executed on Sunday cannot, for that reason, be avoided by a third-party who is a stranger to the transaction, claiming by a subsequent levy..</p> <p>3Sfo evidence can be received to contradict the certificate of acknowledg-ment for the purpose of making a deed ineffectual.</p>

<p>Pleas in abatement to the jurisdiction are to be filed within the two first days of the term, at which the action is entered.</p> <p>The recognizance taken before the magistrate on an appeal must be returned to the court to which the appeal is taken.</p> <p>Where no recognizance is returned when the appeal is entered, it may be received and entered of record by leave of court, after a motion to dismiss for that cause.</p> <p>The records of the court are not completed in respect to, any action till final judgment is rendered.</p> <p>A copy of a recognizance should not be returned to court, and cannot be entered of record; neither is a copy admissible to contradict an original, or show it defective.</p> <p>It is not necessary to show jurisdiction in the Supreme Judicial Court, for it will be presumed until the contrary appears.</p> <p>A motion to dismiss for want of jurisdiction, after verdict, may he treated as a motion in arrest of judgment.</p> <p>lío motion in arrest of judgment, in any civil action, can be sustained by the statute of this state.</p>

Reported by Appleton, J. This was a Writ oe Entry, originally commenced by William G-. Bent, the plaintiff’s testator, who died pending the suit, and the plaintiff, whose capacity as executrix is admitted, comes in to prosecute. A'tract of land is demanded, on the northerly side of Mill street, in Orono, and a claim is set up for rents and profits.

On Report by Appleton, J. This action is brought to recover possession of lots No. 38 and 34, situate in the town of Lagrange. The plea was the general issue by both jointly, with a separate brief statement by Peoples M., disclaiming lot No. 34. Also, a separate brief statement by said George R., disclaiming lot No. 33, but admitting the possession of and claiming to own No. 34. And said Peoples M. admits the possession and claims to own No. 33.

Reported by Appleton, J. This action is upon a bond given by a collector of taxes for the faithful discharge of the duties of his office.

Reported by Hathaway, J. The facts of the case are fully stated in the opinion of the court. The amendment, whether it be regarded of “form” or “ substance,” was allowable. Rules of Court, 4 and 5. In Tarbell v. Dickinson, 3 Cush. R., 346, the plaintiff had leave to amend by adding the whole bill of particulars to the writ, none having been annexed.

This case is Reported by Appleton, J., and the facts appear in the opinion of the court. The case was ably argued by A. L. Simpson, counsel for the plaintiff,

<p>On appeal from a decree of the Court of Probate, the whole proceedings are again examinable in the appellate Court, so far as they are opened by any of the causes assigned, and now testimony may be had upon those issues.</p> <p>Land warrants are not to bo regarded as real estate by a Court of Probate.</p>

Petition for Review. Exceptions. Appleton, J., presiding. The presiding judge decided that the evidence set forth in the petition as newly discovered, and produced at the hearing, had been discovered since the rendition of judgment; and that there had been no negligence or laches on the part of the petitioner in not discovering it, and producing it at an earlier date, but as a matter of law, that all the evidence adduced by the petitioner was not sufficient to authorize a…

Exceptions were taken to the rulings of Hathaway, J.,' presiding at Nisi Prius. The action is Assumpsit upon a note of hand, and on an account annexed for twenty gallons of American gin, sold by the plaintiff to the defendant. The writ boars date March 5, 1856. The case was referred to the court, the parties reserving the right of exceptions in matters of law ruled upon by the court.

Exceptions to the rulings of Appleton, J., at Nisi Prius. Assumpsit for hoop poles claimed to have been sold by the plaintiff to the defendant. The plaintiff put into the case, subject to the defendant’s ’objection, the depositions of Otis W. Lewis, Thomas J. Lewis, Jacob Martin and Charles Rowell.

<p>Subsequent to tlxe commencement of an action upon a poor debtor’s bond, one half of the original judgment was released by the creditor, and the court held that the judgment is not vacated by such release, but should be rendered for the balance.</p> <p>Such release can only be pleaded in satisfaction pro tanto.</p>

Trespass guare clausum against the defendant, who was part owner, in common with the plaintiff, of the lot on which the cutting of timber was alleged. Appleton, J., presiding at Nisi Prius, to whom the action was referred, with the right to except to his rulings of the law reserved, determined that the action in this form could be maintained. Exceptions to this ruling were taken by the defendant.

Petition for Review. On Exceptions to the rulings of Appleton, J. The petitioner proved by the records of the court that the respondent sued out his writ of attachment against Ebenezer H. Scribner, Daniel H. Weeks, and said Nowell, as former partners, under the name and style of Scribner, Weeks & Co., on a note signed by Scribner, Weeks & Co., returnable to the January term, 1853, of said court, (and that return of service was made thereof as alleged in said petition;) that…

This is an action of Assumpsit, to recover for labor in driving logs on the Allegash waters, in the summer of 1854. The plaintiff claims a lien on certain logs described in the writ. After notice to them was ordered by the court, the owners of the logs appeared and entered their appearance on the docket by counsel, and waived any further notice to them of the claim on tbeir logs, under the laws of the state, for the labor of tbe plaintiff.

<p>Error does not lie to reverse a judgment rendered on an agreed statement of facts; nor where the facts proved before the jury are reported by the judge, unless for an error disclosed by the record which will not be cured by a verdict.</p> <p>No writ of error lies to examine a question of fact depending upon the evidence in the original suit, nor to examine mixed questions of law and fact.</p>

Bill in Equity. The facts necessary to a full understanding of the case are stated in the opinion of the court, and need not be repeated here. Neither is it deemed important to insert a synopsis of the voluminous testimony or able arguments of counsel, as the decision is based upon the consideration of the evidence in the case.

Action op. Trespass. The defendant pleaded in abatement the nonjoinder of other persons, but did not aver that the dam concerning which the trespass was alleged was real estate. The plaintiff demurred to the plea in abatement, and the defendant joined the demurrer. The judge presiding at Nisi Prius sustained the demurrer, and the defendant excepted.

<p>Reported by Appleton, J.</p> <p>The facts necessary to a full understanding of the case appear in the opinion of the court.</p>

Exceptions were taken to the rulings of Appleton, J., at Nisi Prius. The action is Assumpsit on an order in these words: “Mr. George N. Black — Sir: Please pay David McLoud, or bearer, eighty dollars, in June next, it being for work in the woods. Thomas Williams.” April 1, 1854. Oh the back of same are these words: “ April 4, 1854.

This is a complaint for an increase of yearly damages occasioned by the flowing of the plaintiff’s land by the defendant’s dam. Held: that the defendant, having had one full and fair trial,' and a judgment against him, was estopped to controvert the question again. The court say he cannot, for “ otherwise there would be no end of controversies.” It is clear that there is a very broad difference between that case' and this.

This case was Reported by Appleton, J., and is brought upon a writ oe entry to recover possession of lands in the town of Stetson. Plea, Nul disseizin. The demandant claims title under a mortgage deed of the demanded premises from D. L. & C. W. Whiting, to E. G. Allen, dated April 18, 1850, acknowledged May 9, 1850, and recorded May 28, 1850, together with seven notes described in said mortgage and secured thereby, given by said Whitings to Allen, for $100 each.

<p>Reported by Appleton, J.</p> <p>Assumpsit upon an account annexed for</p> <p>Two horses, $250</p> <p>Plaintiff’s note, $180,75</p> <p>$430,75</p> <p>And interest from March 18, 1852, $120,00</p> <p>$550,75</p> <p>Also a count for money had and received.</p> <p>The plaintiff introduced testimony tending to show that on December 2, 1851, one of the defendants called upon the plaintiff and bought the horses, at the sum of $250, for which they turned out a note against Walter Brown & Son and William H. McCrillis, on which a balance of $430,75 was then due, which note, he represented, was the amount due him by them, McCrillis and Browns, and that he supposed it would be paid when it was due. The plaintiff accordingly gave the defendants a bill of sale of the horses, and at the same time gave them his note for the balance, of $180,75. which was paid at maturity to the defendants, the bill of sale also containing a charge of the note.</p> <p>The drafts mentioned in the Brown and McCrillis note were paid at their maturity, January 20, 1852, by the plaintiff, at or before which time he presented the note of Brown and McCrillis to Mr. Brown for payment, or to be allowed towards the drafts, when Brown refused to pay or allow it. Thereupon the plaintiff commenced a suit against the defendants, by writ dated March 18, 1852, to recover the same claim as now sued.</p> <p>That suit was prosecuted by the plaintiff, tried at the October term, 1853, of this court, on the second day of the term, and made law. At the trial of the case at that time, the plaintiff offered to surrender the Brown and McGrillis note to the defendants, and tendered the same to them, and they refused to accept it. The ease was by order of court on law, “ nonsuited,”' and is reported in 38 Maine It., 589.</p> <p>After the said decision, viz.: on the 18th of March, 1856, the plaintiff’s attorney gave up the note to one of the defendants, and then on the same day put this writ into the officer’s hands for service, and it was served on that day. The writ liad been already made and forwarded to Lincoln, from Bangor, to an attorney in Lincoln, with the note, with directions to give up the note, and then to have the writ served, which was accordingly done; the writ having been given to the officer for service, but not until after the note had been surrendered to the defendant.</p> <p>The plaintiff then proved by Walter Brown, one of the signers of the note, that the note in question had been given for the balance due P. Wyman, Jr., one of the defendants, on a lumbering operation of the previous winter. That soon after the note was given, Wyman again applied to him to supply him for another operation for the then ensuing season; that he consented, upon an agreement between him (Wyman) and Brown & Son, that he should turn out the Brown and McGrillis note, to go toward the supplies; that he should not give credit for it, until it was payable; that in pursuance of that agreement, said Brown & Son did supply the defendants to the amount of two or three thousand dollars; that the amount of supplies furnished, all of which was due and unpaid on December 2, 1851, was $583,77</p> <p>Amount due March 18, 1852, was $1406,50</p> <p>“ “ October 5, 1853, was about $1700,00</p> <p>“ “ at the present time, $302,67</p> <p>That no sum had as yet ever been credited for or on account of this note, for the reason that it had never been surrendered or offered; and that no sum had ever been paid by the defendants towards the said account, except what had been received for lumber sold, the proceeds of said operation ; that as security for these supplies, they had taken from Wyman an assignment of the permit under which they were cutting, and of all logs and lumber cut under it, and they had by virtue thereof, the marketing of the logs; that no settlement had ever been made between Brown & Son and the Wymans, and that, though often urged, the Wymans had never offered to settle with Brown & Son; that after the agreement with Francis Wyman, Jr., he took in his brother, Andrew W., the other defendant, and the two were in the place of Francis, who originally made the bargain; that the makers of the note against Brown & Son and McCrillis had ever been, and are still, solvent.</p> <p>The T. Cushing drafts, named in the note, were given by the plaintiff for the logs cut by Wyman in the previous winter’s operation, and sold by Brown & Son and McCrillis to Cushing: the note being given for the balance due Wyman of the proceeds.</p> <p>When the note was given up to Wyman, on the day this action was commenced, he took it under the supposition of its being another paper, and on seeing what it was, offered to return it to the plaintiff’s attorney, as having been unintentionally received.</p> <p> Copy of Bill of Bale. </p> <p>Frankfort, Deo. 2,1851.</p> <p>F. & A. W. Wyman.-</p> <p>Bought of T. Cushing,</p> <p>One span black horses, $250,00</p> <p>Note payable January 17,1852, $180,75</p> <p>$430,75</p> <p> Contra Cr. </p> <p>By W. H. McCrillis and Walter Brown’s Note, $430,75</p> <p>Settle.d.as above. E. E. T. Cushing, per G. B. C.</p> <p> Copy of Note. </p> <p>$530,75. For value received we promise F. Wyman, Jr., to pay him five hundred and thirty dollars and seventy-five c ents, provided the drafts given by T. Cushing, for the logs cut on No. 2, range 9, are paid.</p> <p>Wi. H. McCpjllis,</p> <p>Sept. 29, 1851. Walter Brown & Son.</p> <p>Indorsed. Received on within of W. H. McCrillis, one hundred dollars. F. & A. W. Wyman.</p> <p>Dec. 2, 1851.</p> <p>The right of action was mature before the writ was issued, even though the note was not surrendered until after the writ was actually made. The writ was provisionally made, and not issued until after the right of action was complete. This is right. Badger v. Phinney, 15 Mass. R., 359 ; Tufts v. Kidder, 8 Pick. R., 537; Seavie v. Lincoln, 21 Pick. R., 267; Swift v. Crocker, 21 Pick. R., 242: Haskell v. Brown, 2 Fairf. R., 261.</p> <p>But the question does not arise here, inasmuch as a tender of the note was made in court on October 5, 1853, and refused. This fact puts the objection out of the case.</p> <p>Was the surrender of the note, or rather the rescisión of the contract seasonable?</p> <p>Tiro facts are that the trade was made December 2,1851; that the note matured January 20, 1852, and there is no proof that the badness of the note was known to the plaintiff before the maturity or about that time; that an action based on the rescisión of the contract was commenced on March 18, 1852, and that on trial of that case on October 5, 1853, the note was surrendered or tendered to the defendants.</p> <p>Now although the rescisión should be made within a “reasonable time,” yet in deciding upon the question of “ reasonableness,” the court will regard that time reasonable which will save the party from loss and reinstate him in the rights with which, by the trade, he parted. In other words, if the party is placed in statu quo with reference to the transaction, not being harmed, the court will regard the act as reasonably done. The tempus in quo is but one of the ingredients of the matter; a more important question is, whether by the delay the party has suffered any injury.</p> <p>And mo-re especially will the court so act, when the party interested has been himself the guilty party in effecting the trade, as the defendants here are. The court will hold them to the strict rule.</p> <p>Almost all the authorities concur in stating the principle alluded to, in the manner now contended for. Conner v. Henderson, 15 Mass. R., 321-2.</p> <p>If he would rescind, &c., he must “put the defendant in the same situation as he was in before the delivery of the article.” Paley v. Batch, 23 Pick. R., 286. “ He must put the party in as good a situation as he was before.” Chitty bn Cont., 276.</p> <p>“ If the offer to reconvey the land would vest in the plaintiffs their original title, so that substantially they would be in the same situation as before the conveyance,” &c. Holbrook y. Bent, 22 Pick. R., 554.</p> <p>“ He must do it in a reasonable time,” to be sure, “ and must reinstate the party in the condition he was in before the contract,” &o. Ayers v. Hewett, 19 Maine R,, 287.</p> <p>The party cannot rescind, unless both parties can be put in statu quo. Coolidge v. Bridgham, 1 Met. R., 550.</p> <p>Where, one’s own note was taken, it was held that it need not be returned at all. Why? Because it was of no value. The note here was invalid, and only good as a receipt, and if he gets it back in season for settlement, it is enough. Here $1700 was due, when tendered back.</p> <p>In all the cases, the criterion seems to be this: whether the party (guilty party) can be placed in statu quo with reference to the transaction.</p> <p>But here there was notice by su't as early as Marc1' 18; 1852, that the plaintiff did rescind the sale. This was sufficient. 2 Sandf., 421; 1 Sandf., 560.</p> <p>All the facts in this case show that the defendants have not been in any way injured by not having the note surrendered at an earlier day, but that the tender did place them in statu quo, and hence was within reasonable time.</p> <p>According to the agreement, the note was to be paid by supplies. The supplies were furnished. The note not being negotiable, was bound by the agreement. It was then after and on December 3, 1851, an entirely worthless paper, a nudum pactum, and good for nothing except as a voucher to be used in the settlement of the account between Brown & Son and defendants. Por no other purpose was it worth a cent.</p> <p>On December 2,1851, when the plaintiffs took the note, there had been supplied more than the amount of the note, viz.: $583,77. On March 18, 1852, when notice was given, $1406,50; on October 5, 1853, when the note was tendered, $1700.</p> <p>These figures prove conclusively, that for the purpose — the only purpose that the defendants could use the note, they were furnished with it in all good and seasonable time. No settlement has ever been made — none has ever been attempted between Brown & Son and the Wymans, and they desired none. They have paid nothing on account, by reason of not having the note. In no respect have they been injured, but by a return of the note as stated in the case, they are fully placed in statu quo. This is all that was required by the authorities.</p> <p>Brown & Son and McCrillis, are still responsible, and no loss has been occasioned in this way, even though the agreement with Brown & Son had not existed as testified to by Brown.</p> <p>A more important question, however, is, whether the agreement testified to by Brown does afford a defense to a suit on the note ? or, in other words, was the note on December 2, 1851, such a contract as would support an action in F. Wyman, Jr.’s name against the makers?</p> <p>The note was not negotiable; more correctly it was not a note, but a simple contract, and as such, liable to be after-wards altered, discharged or controlled by subsequent agreement of the parties, even though by parol.</p> <p>The agreement set up by Brown was made with Wyman while the legal holder of the paper, and the paper, when it passed from him passed with all the equities which existed between the parties at that time.</p> <p>A new equity between one of the makers and the payee, had arisen by this verbal contract between Wyman and Brown & Son, that agreement attached to and really became in effect, a part of the contract, and bound it, so that in any action brought upon that contract in the name of E. Wyman, Jr., the matter might be legally given in defence.</p> <p>If there could be any question about the validity of the defence while the agreement was executory, that question of doubt was removed upon the performance of it as it was performed by Brown & Son before the sale of the note to the plaintiff, for on December 2, 1851, $583,77 worth of goods had been supplied, being more than the amount of the note. Erom that time, a perfect defence to the note existed against Wyman, and of course against his assignee.</p> <p>In the former case between these parties, 38 Maine R., 591, it was decided that “the note of McCrillis and Brown was of value to the defendants, as evidence of indebtedness on the part of the makers, and should have been returned, or an offer to return should have been made before suit.”</p> <p>In the case at bar it appears that, at the earliest, two years nearly elapsed before the offer to return at the trial of that case, and the second offer at the date of this writ, four years and one half after.</p> <p>I make no question as to the fact that an offer was made before this suit was commenced, and I am willing to assume that it was made at the first trial, about two years after the contract for its sale.</p> <p>This offer was not in a reasonable time. The law is well settled, that when a party elects to rescind a contract for fraud or misrepresentation, he must restore the thing received by him, and put matters back exactly as they stood. This principle cannot bo disputed. It is settled in the case between these parties, and has been decided in numerous cases. Norton v. Young, 3 Greenl. R., 30, and other cases; it is unnecessary to cite them.</p> <p>This must be done in a reasonable time, and what is a reasonable time, is a question of law on the facts.</p> <p>In Norton v. Young it was held that a return, after eleven months, of the confession note, was not in a reasonable time, and no one contended that it was.</p> <p>In Atwood v. Clark, 2 Greenl. R., 249, the doctrine is fully established, that the law requires that where there is no express contract as to the time in which an act is to be done, it must bo in a reasonable time.</p> <p>The case of Kingsley v. Wallace, 14 Maine R., 57, held that two months was not a reasonable time, even where the party had expressly reserved a right to give up the trade.</p> <p>The plaintiff then can only fall back upon an assumption that there is another condition, viz., that it must appear that the defendants suffered injury by such non-return, or that on the case no injury to them arose, by the delay.</p> <p>In the first place, I deny the doctrine, and, secondly, I say injury did arise.</p> <p>In Conner v. Henderson, 15 Mass. R., 319, it was held that where there was the least value, oven nominal, as old lime casks, they must be returned.</p> <p>In this same case, in 38 Maine R., this court says, this note of McCrillis and Brown was of value to the defendants, and should have been returned, and the law adds, in all such cases, “ in a reasonable time.” 2 Greenl. R., 254.</p> <p>In the case at bar, the note was of full value, and is so now; and we wanted it, to have it passed to our credit on the books of Brown & Son.</p> <p>The cases of Ayers v. Hewitt, 19 Maine R., 280, and Thurs-ton v. Blanchard, 22 Pick. R., 18, were cases where the parties’ own notes were not returned. But they are carefully guarded, and apply only to the case of a party’s own note, and that with hesitation, where the note was negotiable. In our court, the recognition of Thayer v. Blanchard is quite doubting. But those cases expressly recognize the doctrine, that where other property or the notes of third persons are given, they must be returned.</p> <p>The plaintiff then fails, because he did not return this note in a reasonable time.</p> <p>Can the plaintiff maintain this action of assumpsit on this state of facts ? If he has any cause of action, is it not trover or replevin for the goods delivered us ? In this action he affirms the contract, sues for the price of his horses, and money had and received for the amount of his note, for $187, ( or thereabouts,) which he paid. Is this rescinding the contract, or is it at best mixing up affirmation and rescisión in one case ? If he had an elect.on in a given state of facts to rescind a bargain, or affirm it, and go for the guarantee or warranty, or damage for deceit; can he do both? The law gives him an election. He sues for the price of the horses— in fact, attached them in the first suit — affirms the sale of the horses. He should have brought trover or replevin. The bargain was the note for the horses. The bargain cannot be rescinded and in force both. He could have had trover also to recover his note. But he does not take that course. He goes for the price of his horses, and to recover back money paid on his note. He should have brought trover for his note, or defended against it. He cannot say that the note he received was not what it purported to be — was not good against the signers, and therefore was no payment. It was received in payment, and the court says, on this case, 38 Maine R., 591, that “ the defendants were liable to the plaintiff, on an implied guarantee, that the amount purporting to be, was actually due.” Then he should have sued on that guarantee, especially if he affirms the sale, as he does, in this case.</p> <p>I submit that this action cannot be sustained.</p> <p>He has in no event a right of action against us, because he should have collected the note of Brown & Son. He took their allegations to bo true, which we deny. By dropping Brown & Son, and suing us, they made Brown a witness, which was of great importance, as the law then stood. In a suit on that note, Brown could not have been a witness. If he was in doubt, he could have called on us to assume the prosecution, and bring an action in the name of E. Wyman, Jr.</p> <p>But waiving all other points, we say, that upon his own showing, the plaintiff has no case, because the agreement, as set fortn by him, was executory and not executed.</p> <p>It is clear law that all executory contracts may be rescinded by the parties to them. Johnson v. Heed ei al., 9 Mass. R., 84.</p> <p>The question here is, whether an understanding or agreement to turn in at a future time a note in payment of supplies thereafter to be furnished, but not to be passed to the credit until a fact in doubt then, is settled, viz.: the payment of the note, is an executory or executed contract. Is it anything more than an agreement to pay the money, if paid on the note, to be passed to his credit ? All in the future.</p> <p>All depended upon the contingency whether the Cushing drafts were paid or not. If not paid, then Brown & Son were not to take the note. The whole bargain, as stated in the report, amounts to this only, (admitting it to be true.) If the r.ote of Brown and McCrillis becomes payable by the fulfillment of its condition, viz., payment of Cushing drafts, in January, 1852, (when the case finds they were payable,) then, and not until then, Wyman is to turn out this note to Brown & Son, and they are to receive and credit it. Wyman was not bound to do it, and Brown & Son not bound to receive it, until this contingency happens. All is executory.</p> <p>Now, as a sale of this note to Brown & Son, there are several fatal objections. A sale must be completed, or it is no sale. It may be an agreement to sell. Hero there was no delivery, and none to be made until a contingency happens. “ Property does not pass absolutely, unless the sale be completed, and it is not completed until the happening of any event expressly provided for.” Parsons on Con., vol. 1, p. 441, and cases there cited.</p> <p>A delivery as against a subsequent purchaser is necessary to transfer property. Ib. Houdlett v. Taiman, 14 Maine R., 400, and numerous other cases.</p>

<p>No action can be maintained against a railroad corporation for injuries by acts done in conformity to law, unless tbe corporation bave in some way-forfeited their chartered rights or the charter remedy has been rightfully-modified by some statute, so as to authorize such suit.</p> <p>The legislature having limited its power over a corporation to the imposition of any other or further duties, liabilities or obligations than those contained in their charter, is not restricted in any enactment as to the mode, the time when, and the courts where they shall be enforced.</p>

Beported by Appleton, J. Trover for the value of a mare. The facts of the case appear in the opinion of the court. The plaintiff bought the mare of one of the defendants, and paid for her. The contract was a fair one, and such as the parties had the right to make. The risk, which the plaintiff must necessarily incur, of losing the money paid for the mare, was a fair set off against the deduction made by the defendant from her value.

Action on the Case, for the continuance of a dam, whereby the plaintiffs’ ancient mill site was flowed and destroyed. Reported by Appleton, J. The facts necessary to a full understanding of the case, appear in the opinion of the court.

The action is Trespass for the value of a lot of timber upon which the plaintiff claims a lien for advances and commissions, to J. B. Eoss, of whom he received the timber. The verdict was for the plaintiff, and the evidence is reported by Appleton, J., on a motion for a new trial. The defendant claims to have purchased tho timber of the owner with the knowledge and consent of the plaintiff. The plaintiff introduced the following receipt: Bangor, March 19, 1856.

<p>Where it was agreed that the plaintiff should retain the ownership of lumber until certain notes given him by the owner should be paid, and he was in possession at the time of the attachment by the creditors of the maker of the notes, he will be entitled to hold it against them.</p>

This action is for an alleged Breach op Promise op Marriage by the defendant, and comes before the full court upon Exceptions, the verdict being against him, to the rulings of Appleton, J. The defendant introduced evidence of the plaintiff’s bad character for chastity generally, and evidence tending to prov e specific acts of immodest, unchaste, and criminal conduct on the part of the plaintiff with other men, particularly with one Fobs.

This is an Action of the Case upon the following declaration, and comes before the full court upon Exceptions to the rulings of Cutting, J., and on motion for a new trial. The exceptions only are considered by the court.

This is an Action op Assumpsit upon an agreement signed “ Wm. R. Miller, Agent,” and was defended upon the ground that he had no authority to bind the defendant by an agreement for such purposes as are embraced therein. Cutting, J., presiding at Nisi Prius, ordered a nonsuit; to which, and to the rejection of certain evidence, the plaintiff excepted. This case, upon a mere legal look at the thing, appears to have been rightly nonsuited.

<p>Where there is a chartering of the whole vessel under and over decks, 'dn the one part, and on the other part an agreement to pay a given sum for the use of the vessel, the agreement will he treated as a contract of hiring, rather than of affreightment.</p> <p>Under such an agreement, the cargo offered must he suited to the capacity of the vessel, and the owner is not hound to alter his vessel to accommodate the freight, and damages may he recovered for the difference between the contract price and what the vessel might have earned hy pursuing the voyage with other freight; and for necessary delay.</p>

This is an action on the case, for diverting water from the plaintiff’s mill. Exceptions were filed to the rulings of Hathaway, J., and the whole evidence is by him reported upon a motion for a new trial.

Bill in Equity, in which Joseph Tucker complains that on the twenty-ninth day of March, A. D. 1836, Gowen W. McKay and George W. McKay conveyed to him a certain lot or parcel of land, situated in Cherryfield, and bounded as follows, viz.: “ Beginning on Narraguagus river at low water mark, at the south east corner of a lot of land now owned and occupied by Thomas Small, of said Cherryfield; thence westerly by said Small’s south line to land owned by William Freeman; thence…

Reported by Hathaway, J., presiding at Nisi JPrius. This was an action for money had and received and money paid and goods furnished. Held: and now offered the three notes to defendant in exchange for the receipt. It is the custom in Boston to charge two and a half per cent, on accommodation acceptances.

<p>To maintain trespass, the plaintiff must show that he has actual or constructive possession of the property sued for, and the defendant is not put to his justification until the fact of possession is established by the plaintiff.</p> <p>One who relies wholly upon constructive possession arising by implication of law, from the alleged fact that the legal title is in him, must first establish his title, or he is left without possession and without any basis on which to maintain an action of trespass.</p> <p>When, to prove his title, the plaintiff introduced a mortgage from F. to himself, and the defendant replies that he obtained no title, and consequently no constructive possession by that mortgage, because F. had none at the time, having previously divested himself of the title to the property by mortgage to B., the latter mortgage is admissible as evidence tending to show that fact.</p>

The facts in tbis were agreed by the parties. The action is Case against the defendant, as sheriff of Waldo, for a false return of S. S. Gerrish, one of his deputies. Held: “Saturday, the 24th,” instead of the “ 23d” day of June, which was correct, and as it was in the newspaper.

Exceptions wore taken by the plaintiff to the rulings of Cutting, J. The Action is Assumpsit on an account annexed for cutting and hauling about two million feet of pine and spruce logs. The logs were cut under a written contract, by the terms of which the plaintiff agreed to cut and haul at least four million feet. The present action was brought to recover the balance due for cutting and hauling the logs actually cut at the contract price, a part having been paid.

Facts Agreed. Assumpsit on a promissory note, of which the following is a copy: “ Deer Isle, January 13th, 1855. “For value received I promise to pay Jacob Dodge, or order, five hundred twenty-nine dollars, in one year, with interest after six months. [Signed] W. F. Collins.” Indorsed on the back, “ without recourse.” “ Jacob Dodge.” The genuineness of the signatures were admitted.

Exceptions to the rulings of Mat, J. This was an action of trespass for an alleged assault and battery, to which the defendant pleaded the general issue, with a brief statement of justification, that the injury, if any, was inflicted by the defendant in self-defence, from the assault of the plaintiif.

Reported by Tenney, C. J. This is an action of Scire Facias, against the defendants, on a recognizance for the appearance of the principal defendant before the Supreme Judicial Court, to be kolden at Auburn, within and for the county aforesaid.

The complainant alleges, that, on May 16, 1844, Benjamin H. Harnden was seized in fee of the described land, being his homestead in Denmark. On that day he conveyed the same to Benjamin Harnden, in mortgage, conditioned for the maintenance and support of the said Benjamin and other persons, as specified in said mortgage and in said bill.

Exceptions to the rulings of Goodenow, J. This is a case of Scire Facias against the defendant, as stockholder in the South Paris Manufacturing Company. And now, William Deering, one of the defendants, comes into court, and moves the court, that the writ and declaration should be quashed, abated and annulled, and for his costs, for the following reasons, appearing upon the face of the same. 1.

<p>If damage be done by any domestic animal kept for use or convenience, tbe owner is not liable to an action on the ground of negligence, without proof that he knew that the animal was accustomed to do mischief be- ' fore, if such animal is rightfully in the place where it does the mischief.</p> <p>If domestic animals are wrongfully in the place where they do any mischief, the owner is liable for it, though he had no notice that they had been accustomed to do such mischief before ; and an allegation in the writ of such previous knowledge is unnecessary, and may be treated as surplusage.</p> <p>When the declaration in a writ alleges that the defendant’s horse, being unlawfully at large, broke and entered the plaintiff’s close, and injured the plaintiff’s horse, which was there peaceably and of right depasturing, it is sufficient to sustain a verdict for such injury.</p>

Exceptions- at Nisi Prius, G-oodenow, J., presiding. This was an Action of Assumpsit upon a promissory note, payable to Levi Sawyer & Son, and by them indorsed. Levi Sawyer, one of the defendants, deceased after the action was brought, which was thenceforward prosecuted against the other defendant, as surviving partner. The general issue was pleaded. The plaintiff offered the note described in the writ.

This was a Complaint under the Bastardy Act, and comes before the court on Exceptions to the ruling of GoodeNOW, J. The examination of the complainant was held and taken before the Municipal Court at Brunswick, on the 8th day of September, 1854. The declaration was duly filed.

Tbe facts in this case were agreed by tbe parties. Tbe Action is Assumpsit to recover for tbe support of paupers.

<p>By the eleventh section of their charter, the Atlantic and St. Lawrence Railroad Company are obliged to erect and maintain substantial, legal and sufficient fences on each side of the land taken by them for their railroad, where the same passes through enclosed and improved lands; and in default of which they are liable for injuries occasioned thereby.</p> <p>' By the lease and assignment of the Atlantic and St. Lawrence Railroad, that company have not relieved themselves from any liability for losses or ’ injuries to which they were subjected by their charter and the laws of the istate.</p>

Petition for Mandamus to compel the Court of Commissioners for Cumberland county to complete their records, and came before the full court upon an agreed statement of facts. The history of the case appears in the opinion of the court.

This is an action of Replevin, to secure possession of a book of records containing the records of school district No. 5, in Sanford, in said’ county, and belonging to the inhabitants of said district, and alleged to have been illegally taken and detained by said defendant, and comes forward on an agreed statement of facts, having been originally commenced before a justice of the peace.

The following facts in this case were agreed by tbe parties.

<p>The word premises in a deed of conveyance means everything which precedes the habendum, and if the premises are descriptive merely, and no particular estate be mentioned, the habendum becomes efficient to declare the intention.</p> <p>A deed of land “ to have and to hold ” to B. and his heirs, is good, although the grantee is not named in the premises; and when the habendum is not repugnant to the premises it is good and effectual.</p>

Exceptions were taken to the ruling of Hathaway, J., in this case, which is Assumpsit on an account annexed in a bill of particulars to the writ, for $36.80. On the first day of the term, the defendant filed his account in set-off, amounting to $24.92, a bill of particulars of which was ordered and filed in vacation.

Exceptions were taken to the rulings of May, J. This action is Assumpsit on account annexed for $200.00, and also on note for $600.00, dated March 15, 1855, signed by Richards & Barker, payable to A. A. Child in ninety days, with the defendant’s name on the back of the note, to whose name was added the words “without recourse.” The defendant is declared against as maker of the note. A. A. Child afterwards indorses to his firm, the plaintiffs.

Tbe facts of tbis case were agreed as follows: This action is Assumpsit on two promissory notes. Tbe notes were given by tbe defendant to one wbo sold them to tbe plaintiffs for a full consideration, and were in tbe following words, viz.: “'$25.00. Thomaston, Oct. 7,1856. Six months after date,-I promise to pay to tbe order of myself twenty-five dollars, value received, at tbe Tbomaston Bank, with interest. Signed, J. B. Wight.” ■On wbicb tbe defendant indorsed bis name.

<p>A certificate of discharge of a bankrupt will be a discharge of his liability to his sureties upon an official bond, when it appears that the debt against the principal and sureties might have been proved under the Bankrupt Act.</p> <p>A breach of an official bond subsequent to the filing of a petition to be declared a bankrupt, could not have been proved as a claim in the proceedings upon such petition.</p>

Exceptions were taken to the rulings of Goodenow, J., in this action, which is Assumpsit upon a note of hand, dated 15th of November, 1852, for $41.53, payable on demand, with interest, to Charles H. Strickland or order, and by him indorsed.

This was an Indictment against the defendant for adultery, with one Yesta Brown. To prove the marriage of the defendant, the county attorney called Charles H. Chandler, who testified that he had known the defendant ever since he came into Foxcroft, four or five years ago; his family came some time after. He heard the defendant say he had a wife and family, and that he had sent for them. He introduced Mrs. Libby to him as his wife, or as Mrs. Libby.

This action came up on a plea in abatement, seasonably and duly filed at the return term, by the defendants, to quash the plaintiff’s writ, for want of due and legal service on them, as they say, to which the plaintiff demurred, and the defendants joined in demurrer.

<p>The proof should show the existence of a note corresponding to the one set forth in the declaration, or there will be a fatal variance.</p> <p>In a declaration upon a note which is lost and cannot be produced, it is necessary not only to set out the substance of the whole note, but to prove the same as alleged; and it is not enough to show that a note was once given and payable either on demand or on time.</p> <p>Vagueness and uncertainty of proof is equally an objection to sustaining a count for money had and received.</p> <p>By the rules of this court the defendant is entitled to a specification of the matters to he proved in support thereof.</p>

<p>If a bailee uses property bailed in a different manner than by the contract of bailment he stipulated to use it, such use constitutes a conversion, and' trover is maintainable therefor.</p> <p>Where the agreement was, that the thing bailed should be used in the service of A., and in his business, the bailee has no right to lease the property to B., to be used by him.</p> <p>TV here the option is with the party receiving, to pay for or return the goods received, such alternative agreement amounts to a sale; but otherwise, if, at the time of receiving, he admits the title to be in the other party, so to remain until fully paid for.</p> <p>Where a sale is conditional — that no title shall pass till the vendee shall pay the price of the article sold and delivered, the vender if guilty of no laches, may reclaim the property, even from a vendee in good faith, and without further notice.</p>

This action, Reported by Appleton, J., is Assumpsit on the following order: “W. Staples, Esq., — Dear Sir: Please pay Ansel T. Sylvester fifty-five dollars, for work done on logs, and yours oblige. Signed, L. B. Ricker & Co.” On this order is the following memorandum in writing: “ I accept the written order, to pay when due.

This was an action of Assumpsit, and at the January term of this court in 1856, it was submitted to the full court upon an agreed statement of facts, and after agreement by the counsel of both parties, judgment was rendered for the plaintiff as follows: Defendant defaulted. Parties to be heard in damages. And at the next term of the court, the plaintiff submitted a motion for assessment of damages by the court, upon the evidence contained in the agreed statement.