Volume 45 — Maine Reports

<p>On Report from Nisi Prius, Mat, J.</p>

<p>Trespass quare clausum cannot be maintained against one, for acts done on premises of -which he has been in possession more than six years, so as to be entitled to betterments under c. 145 of Revised Statutes.</p>

On defendants’ Exceptions from Nisi Prius, May, J., presiding.

<p>The owner of a tract of land gave to plaintiff a permit to cut and take away" certain trees, reserving the ownership and control of the lumber cut, until payment therefor had been made; defendants, without license, entered upon, the land, cut and removed the trees : — Held, that plaintiff had no such property, or right of possession, in the lumber, as would entitle him to maintain replevin therefor.</p>

Scire facias, to revive a judgment rendered September term, 1847, of the late District Court, in favor of Emeline B. Lincoln, for seizin and possession of a parcel of land ift Moluncus, and for eighty dollars damages and costs of suit. The case is presented on Report ; the material facts therein stated appear in the opinion of the Court. Scire facias is the proper remedy. Pro. Ken. Pur. v. Davis, 1 Maine, 309; 2 Bae.

<p>In an action to recover possession of a lot of land, the certificate of the Land Agent of the State, permitting the defendant to enter upon the lot, as a settler, with proof that he has performed all the duties of a settler, but that the Agent has conveyed the lot to demandant’s grantor, affords him no legal ground of defence.</p>

Writ op Entry. Plea, general issue. This case was taken from the jury, and, on Report of Hathaway, J., submitted to the whole Court, to render judgment by nonsuit or default, according to the legal rights of the parties. The only questions in the case were, as to the location of boundaries of land, described in the deed introduced.

Assumpsit. The writ, which is dated March 18, 1853, contains a count for a quantity of hay, (according to account annexed thereto,) and another for money had and received. The case was heard on the evidence reported by Hathaway, J. By the Eeport, it appears that the plaintiff caused an execution, which he had obtained against one Tobias A. Hall, to be extended on certain real estate, as said Hall’s property, on 17th of February, 1851, which levy was recorded June 10, 1851.

Case, for alleged breach of contract. Plea, general issue. 'The action comes up on Exceptions by plaintiff, and also on his motion to set aside the verdict, which was for defendant, as being against law and evidence.

Suit in Equity. The substantial allegations in plaintiff’s bill, are, that his son, David B. Brown, now deceased, had for several years been allowed by him to sail his vessels and receive their earnings; to purchase and sell vessels and merchandize, and otherwise to employ funds in his hands belonging to him; the said David B. using his own name in such transactions when he chose; the plaintiff having full confidence in his integrity, and believing that he would faithfully…

Assumpsit, to recover balance of account. Plea, general issue.

<p>On Report from Nisi Prim. Hathaway, J.</p>

<p>In reducing to writing a contract, for the charter of a vessel, the usual printed form of a charter-party for a voyage was used by the scrivener, who erased the words, “fora voyage frbm,” &c., and inserted “for a space of time, commencing' on, &e., and to continue six months ; should the vessel be upon a voyage at the expiration of the time specified, time to end on her arrival, &c., unless a longer time is agreed upon.” The party of the second part agreed “to pay for the charter, during the voyage aforesaid, $600 per • month for each and every month as before specified.” An outward voyage was made, but the vessel was lost on her return voyage. In an action upon the contract, it was Held: — that the charter was not for a voyage, but for a specified time, which was terminated by a peril of the sea, up to which event, defendants are liable to pay the contract price, with interest since : — that defendants are not entitled to commissions or insurance on advance payments.</p>

<p>The statute of 1850, 'which authorized the Land Agent to sell the timber and grass growing on lots reserved for public uses, in unincorporated townships, should be construed to include, in its provisions, a lot which was reserved “for the benefit of public education in general,”</p> <p>By a deed, which, from its terms, conveys only the right, title and interest of the grantor, the grantee does not obtain any thing which the grantor had previously parted with, although the subsequent deed was first recorded.</p>

<p>A horse, exceeding in value $100, is not exempted from attachment and execution.</p> <p>In the revision of the statutes of 1857, the principal design was “ to revise, collate and arrange the public laws,” and, in revising, “to condense as far as practicable,” — and a mere change of phraseology should not be deemed a change of the law, unless there was an evident intention, in the Legislature, to work a change.</p>

On facts agreed. The action is Assumpsit. The defendants are declared against as acceptors of a bill of exchange, dated September 2, 1857, drawn by Jacob Clark, for §539,91, payable in sixty days to the order of the drawer, by whom it was indorsed; and was directed to defendants, at Boston. It appears that plaintiff was an accommodation indorser, and that the bill was discounted by an agent of the Calais Bank, for the Bank.

Complaint for flowage, under c. 126', of R. S. of 1841. The case comes before the Court on Report of the evidence by Appleton, J., by which it appears that plaintiff introduced, without objection, deeds showing title in him to the land flowed, as set forth in the complaint. Also, several .depositions, tending to show the extent to which his lands have been flowed, and the damage he has sustained thereby. Wm.

Writ op Entry, dated Sept. 20, 1856, and the action was entered at the October term, of the same year. By agreement of parties, the case was tried as though commenced Oct. 6, 1857, and the date of the writ to be changed to that day. Plea, general issue, with a brief statement, and request to find the improvements, and the value of the land without them.

Assumpsit on a policy of insurance, effected by plaintiff, for his own benefit, on the life of his minor son. The case is presented on Eeport of Appleton, J. At the first term, the defendants’ counsel entered his appearance “ specially;” and, on the third day of the term, filed a motion to dismiss the action for want of proper service. By the officer’s return, it appears that service had been made on a person, who is stated, in his return, to be an agent of said company.

That an action of account may be maintained by one owner of a vessel, against a co-owner for his part of her earnings in the hands of the co-owner, as well as a bill in equity. R. S., c. 82, § 62; Hardy v. Sprowl, 33 Maine, 508; Closson v. Means, 40 Maine, 337. In Hale v. Hale, 3 Day’s Cases, cited in 1 Dane, c. 8, § 11, page 165, where one part owner of a vessel had taken more than his proportion of the ship’s money, an action of account was considered a proper remedy.

<p>The death of the principal in a bond given to release him from arrest on execution, within the six months named in the bond, discharges his sureties from liability.</p>

<p>Debt, for the amount due to plaintiff from defendants, as administrators on the estate of Lydia Buckley; the plaintiff claiming to be an heir of said Lydia, and entitled to a share of her estate, under a decree in Probate for the distribution of the same. The questions controverted are, plaintiff’s claim to be entitled as an heir; and, if an heir, the part of the estate to which he is entitled. By the Statement op Facts agreed on, it appears that said Lydia Buckley died intestate, in 1853, leaving no issue, father or mother. She left no brothers or sisters living. ' There were living, at the time of her death, three children of one brother, and also grandchilren of said brother, whose parents were deceased. There were living a child of one sister, and also grandchildren of said sister, whose parents were deceased. There were also living one child of another sister, and a grandchild of said sister, whose parents were deceased. The plaintiff is a grandchild of a sister. The plaintiff’s parents and grandparents were deceased at the time of intestate’s death. Plaintiff was, therefore, a grand-nephew of the deceased.</p> <p>If the Court should be of opinion that plaintiff is entitled, as an heir, its opinion is also desired whether the nieces and nephews take numerically, or by representation, and whether the grand-nephews and nieces, (if entitled at all,) take numerically, or by representation of their immediate ancestor. Damages to be assessed by the clerk, in accordance with the decision of the Court.</p> <p>By the R. S. of 1841, c. 93, § 1, No. 3, the three living children of the brother of the intestate would be entitled to one-third of the estate, one-ninth each, and each sister’s child, one-third each, of the whole estate. Qitinby v. Higgins, 14 Maine, 309.</p> <p>But this statute has been changed, by the Act of 1852, c. 295, § § 2 and 3, approved April 26,1852, and this has been incorporated into the R. S. of 1857, c. 75, § 1, No. 3.</p> <p>By this amendment, grand-nephews and nieces inherit. Before this Act, they did not. We claim that they inherit ■numerically, with nieces and nephews, because they are to inherit in the “same manner.”</p> <p>If not numerically, then it follows by representation. That is, the grandchildren of a brother of the intestate inherit their own immediate ancestor’s portion together; i. e. the brother’s one-third is to be divided into seven parts, one part to each child living, and one part to all the children of each deceased child.</p> <p>And cited c. 93 of R. S. § 1, and 14 Maine, 309, (same as referred to by plaintiff’s counsel.) Also R. S. of 1857, c.-75, § 1, and c. 295 of the laws of 1852, and contended that the amended statute contemplates for the grand-nephews to take only in cases where the nephews are all deceased.</p>

This is an action of Assumpsit, on a policy of insurance of a vessel called the A. Hooper, dated Oct. 13, 1854. Action . commenced Dec. 14, 1855. Plea, general issue, with a brief statement of matters relied on in defence.

Bill in Equity, brought by trustees named in the will of the late William Ladd. The property was bequeathed to them “ in trust, for the cause of peace, to be by them paid over to the executive committee of the American Peace Society.” The facts sufficiently appear in the opinion of the Court.

<p>Trespass, quare clausum.</p> <p>In 1743, the proprietors of the lands in the town of North Yarmouth, conveyed to certain persons, then selectmen of said town, “ all the flats, sedge banks and muscle beds in said town, lying below high water mark.”</p> <p>This conveyance was made “ in behalf of, and for the sole use, benefit and behoof of the present inhabitants of said town of North Yarmouth, and of all such as may or shall forever hereafter inhabit and dwell in the said town, to be by said inhabitants, forever hereafter used, occupied and improved in common, with full liberty to graze, feed, cut rock weed, dig all sorts of shell fish,” &c.</p> <p>The rights conveyed by said deed, continued to be enjoyed by the inhabitants of North Yarmouth until 1849, when the Legislature divided said town, erecting a part of the territory into the town of Yarmouth. By the legislative Act of division and incorporation, it was provided that the inhabitants of both towns should continue to hold and enjoy in common, all their rights and privileges in said flats, &c.</p> <p>Subsequently, the town of North Yarmouth claimed to hold said flats, sedge banks, <fcc., for the exclusive use of the inhabitants of that town, denying the right of the inhabitants of the new town of Yarmouth to any enjoyment thereof. The defendant was originally an inhabitant of North Yarmouth, and, after the division, an inhabitant of Yarmouth. Claiming the right thereby to enter upon said flats, he went thereupon and cut a quantity of grass, for which the plaintiffs brought this action of trespass quare clausum. At the hearing, before Davis, J., the facts were Reported by the agreement of the parties, and the case submitted to the full Court.</p> <p>By the facts agreed, the plaintiffs were sole owners of the premises upon which the alleged trespass was committed, (by conveyance from the proprietors of North Yarmouth in 1743, May-25th,) up to the time of the incorporation of Yarmouth, Aug. 8, 1849. Special Laws, 1849, c. 264.</p> <p>The title to the land owned by plaintiffs, was not affected by the Act of incox-poration referred to. Although it was competent for the Legislature to establish a new corporation from a part of North Yarmouth, and define its limits territorially, yet the Legislature could not disturb the title to the land within the limits of either corporation. They could properly change the municipal jurisdiction of the territory, but not its title. In respect to their titles to lands, towns are as independent of the legislative control as are individuals. The Legislature could no more transfer the real estate of one town to another, than they could convey the property of one man to another, by legislative enactment.</p> <p>When the inhabitants of Yarmouth were incorporated into a separate town, they ceased to have any municipal rights or privileges in the town of North Yarmouth, and in its lands and public landings, &c. As individuals, merely, they had no right, title or interest in such lands and privileges. But it was only in their corporate relation, that they possessed any such right and interest, and when their municipal relation changed, their prior municipal rights and relations ceased.</p> <p>This was not a mere division of a town, but it was a creation of a “ separate town,” investing it with all the privileges and powers, and subjecting it to all the duties and liabilities incident to the inhabitants of other towns in this State. The town of North Yarmouth, remained with all of its corporate rights and privileges, and, with its corporate obligations and duties unchanged, were liable for all the debts and obligations of the town before the incorporation of Yarmouth. Wind,ham, v. Portland,, 4 Mass. 389; Richards v. Doggett, 4 Mass. 539 ; Hampshire v. Franklin, 16 Mass. 86.</p> <p>There is no evidence from which it can be inferred, that the plaintiffs held the premises in trust. But, if in trust, then only for the inhabitants of the town of North Yarmouth, for the time being, with their attendant corporate rights, duties and obligations, and not for the inhabitants of any other town, who share none of the corporate relations of the plaintiff town, since all such relations are local and territorial in their origin, design and operation. Green v. Putnam, 8 Cush. 21, 27.</p> <p>The fifth section of the special law, 1849, c. 204, is unconstitutional and inoperative; and, consequently, Yarmouth had no title, or right, or interest in and to the premises. And the justification of the defendant wholly fails.</p> <p>The fourth section of the same statute has been pronounced unconstitutional, in some of its provisions, in a suit between the towns of Yarmouth and North Yarmouth. Yarmouth v. North Yarmouth, 34 Maine, 411.</p> <p>This case is to be distinguished from Yarmouth v. North Yarmouth, 34 Maine, 411, because that was a case where the power of the Legislature to alter the rights of private corporations was called in question. In the case at bar an entirely different question is presented.</p> <p>The town of North Yarmouth was a public corporation; and the only question is, whether or not the Legislature, in erecting the town of Yarmouth out of the limits of North Yarmouth, as before constituted, had the right to make the provision it did in regard to the common lands.</p> <p>It has been settled in this country, ever since the case of STcerrett v. Taylor ais., 9 Cranch, 52, that the only restriction on the legislative action in regard to public corporations, is, that while they may change, modify, enlarge or restrain these corporations, they should secure the property of these corporations for the uses of those for whom and at whose expense it was originally purchased. See 2 Kent’s Com., 5th ed. 305.</p> <p>In Angelí & Ames on Corp., 3d ed., page 28, it is laid down that, while private corporations, being created by an Act of the Legislature, which is regarded as a contract, the Legislature cannot constitutionally impair it, by annexing new terms and conditions onerous in their operation, or inconsistent with a liberal construction of the grant. The Legislature, as the trustee of the public interests, has the exclusive and unrestrained control over public corporations, and, acting as such, as it may create, so it may modify or destroy, as public exigency requires or recommends, or the public interests will be best subserved.</p> <p>Here, in 1849, was the town of North Yarmouth owning certain flats and sedge banks, which had been conveyed to the town by the proprietors in 1745, for the use of the inhabitants. “ The inhabitants of every town, in this State, are declaréd to be a body politic and corporate by the statute, but these corporations derive none of their powers from, nor ai’e any duties imposed upon them by the common law. They have been denominated quasi corporations, and their whole capacities, powers and duties are derived from legislative enactments.Hooper v. Emery, 14 Maine, 377.</p> <p>If the Legislature had seen fit, by merely changing the lines of the town, to transfer the inhabitants of North Yarmouth into another town, without any provision preserving their former rights, as such inhabitants, it could have done so. The Legislature has authority to change the boundaries of towns at pleasure. Ham v. Sawyer, 38 Maine, 41. But towns cannot change their boundaries. Freeman v. Kenney, 15 Pick. 44.</p> <p>The Legislature, if it had seen fit, might have wholly abolished the town of North Yarmouth, for towns exist at the pleasure of the Legislature, and not at their own pleasure, (Gorham v. Springfield, 21 Maine, 61,) and in that case, these flats and sedge banks, mentioned in the case at bar, would have been subject to the disposition of the Legislature. '</p> <p>But we have seen that the Legislature, though having the power, did not deprive the town of North Yarmouth of its rights to these banks and common lands. Though it had drawn a line through the town, yet, it provided that those residing within the limits of the old town, should retain their rights to this common property, the same as though no line had been drawn and no new name given.</p> <p>Where a town owns property, it is entirely within the province of the Legislature, upon dividing that town, to provide as to the enjoyment of that property. Brewster v. Harwich, 4 Mass. 278; Randolph v. Braintree, 4 Mass. 315; Harrison v. Bridgton, 16 Mass. 16.; Windham v. Portland, 4 Mass. 384; Minot v. Curtis, 7 Mass. 441; Brunswick v. Dunning, 7 Mass. 445 ; Hampshire v. Franklin, 16 Mass. 86.</p> <p>The effect of legislative action changing the boundaries of towns, upon the property, rights and privileges of its inhabitants, are succinctly stated in this last case cited, where the Court hold the following language: — “By general principles of law, as well as by judicial construction of statutes, if a part of the territory and inhabitants of a town are separated from it, by annexation to another, or by the erection of a new corporation, the remaining part of the town, or the former corporation, retains all its property, powers, rights and privileges, and remains subject to all its obligations and duties, unless some express provision to the contrary should be made by the Act authorizing the separation.”</p> <p>By a reference to the cases, it will be found that where the Legislature, iu altering town lines or erecting new corporations, have made no provision as to the enjoyment of the property of the old corporation, that property remains in the old corporation; but where, in the Act of alteration or separation, the Legislature has, in terms, prescribed the mode in which this property shall be enjoyed, their action is conclusive.</p> <p>The question then, is, did the Legislature, in the Act of August, 1849, make such a provision as gives to the town of Yarmouth, the right to enjoy the property which belonged to North Yarmouth, at the time Yarmouth was erected out of it ?</p> <p>The provisions of the 5 th section of the Act of August, 1849, are plain. By that section, the town of Yarmouth is to enjoy these common lands, that before the division, belonged to North Yarmouth, the same as if no division had been made. If the Legislature had the power to make provision in regard to the enjoyment of this common property, the 5th section clearly gives the right to Yarmouth to enjoy this property.</p> <p>The cases already cited show, that, had the Legislature seen fit, in the Act. of separation, to have provided that the inhabitants of Yarmouth should exclusively be entitled to the use of these lands which lie in her limits, it could have legally done so.</p> <p>When, then, the Legislature said to the town of North Yarmouth, “ we will call a part of you Yarmouth, but the rights of all the inhabitants to enjoy the common property, wherever situate, shall be preserved,” the interests of the town of North Yarmouth were sufficiently consulted, and they should be content with the exclusive rights, which, under the circumstances of that case, the Court felt compelled to give them by their decision in the 34th of Maine, and suffer the defendant quietly to enjoy those rights which, but for a legislative line, as an inhabitant of North Yarmouth, he would have been entitled to.</p>

Assumpsit by an indorsee against the maker of a promissory note, of the following tenor: — “$601. Boston, Nov. 8th, 1855. “ For value received, I promise to pay to the Commercial Mutual Marine Insurance Company, or order, sis hundred and one dollars, in fourteen months from Nov. 3d, 1855. Payable in Bath, Me. Joseph C. Given.” The note was subsequently, and before its maturity, indorsed and transferred to the plaintiff, in payment of a claim which he had against the company.

Petition for review of an action in which the defendant formerly recovered judgment against the petitioners. At the hearing, before Davis, J., the petition was ordered to be dismissed, and the petitioners filed exceptions. As the only question determined by the full Court was whether exceptions would lie to such an order, a report of the facts in the case becomes unnecessary. The case was elaborately argued by

• This was a Petition for Partition of certain premises situated in Standish, lying between the Saco river and New river. George Scammon, under whom both parties claimed, owned the whole of the central portion, and one undivided half of the strips lying on either side. Scammon conveyed one third part of his interest therein to James B. Thornton, by his deed, dated Jan. 15,1829 ; and Thornton conveyed the same to the petitioner, Jan. 17, 1831.

<p>A description of a house in a policy of insurance, as “ occupied by” the insured, is a description merely, and is not an agreement that the insured should continue in the occupation of it.</p> <p>The question whether certain specified facts would increase the rates of insurance upon the property insured does not relate to matters of science or skill.</p> <p>Such a question calls for the opinion of the witness upon the influence which certain facts would have upon others, and whether they would be induced thereby to charge higher rates of premium ; and it is inadmissible.</p> <p>The insured was bound by the terms of his policy to give notice to the company, if. any thing should occur by the acts of others to increase the risk, the company thereupon having the right, at their option, to terminate the insurance. The risk was so increased, and the insured gave the company no notice; the house was subsequently destroyed, but the fire originated from causes in no way connected with the facts by which the risk had been increased. It was held that, as it could not be certainly assumed that the company, if notified, would have terminated the insurance, the liability of the company upon the policy still continued.</p>

This was an action of Trover for a quantity of coal. The case was submitted to the full Court upon an agreed statement of facts.

This is an action upon a policy of insurance on “ a stock of merchandize contained in the chambers of a four story brick and slated building” on Middle street, in the city of Portland.

<p>This case was submitted to the full Court, upon Report of the evidence by Davis, J. The facts sufficiently appear in the opinion of the Court.</p> <p>The defendants were joint and several promisors upon three promissory notes, payable to Wendall P. Smith or order. Smith also held a mortgage from one of the defendants, of whom he had the notes, of personal property of less value than the amount of the notes. Afterwards, without consulting the other defendants, who were in fact sureties on the notes, though not signing as such, he discharged the mortgage. At a still later period, the notes having been long overdue, he transferred and indorsed them to the plaintiff in this action. One of the defendants has been defaulted. The other defendants introduced parol evidence, subject to the objection of plaintiff, that they became parties to the notes as sureties for the one who has been defaulted; and they contended that the surrender of the mortgaged property, by Smith, while he held the notes, discharged them from their liability.</p> <p>1. Testimony that any of the signers were sureties only was improperly admitted, it not having been shown that the payee of the notes or the plaintiff had any knowledge of such relations. Price v. Edmunds, 10 Barn. & Cress. 578; Sprigg v. Bank of Mount Pleasant, 10 Peters, 257.</p> <p>2. The promisee of the notes was not restricted to look to his collateral security for payment; but he might have his action against the promisors, and abandon and relinquish all claim upon the mortgaged property, without impairing the validity of the notes.</p> <p>8. If the signers were in fact principal and sureties, the holder, who had no knowledge of such relation, would not be affected by it; and knowledge of the position of the signers to each other cannot be inferred from the fact that the notes were given in discharge of the debt of one. Wilson v. Foot, 11 Met.-288.</p> <p>4. The defence here set up is rested on the practice of courts of equity; and, if true in fact, and 'under any circumstances could be sufficient in law to relieve the signers, or any of them from liability, it cannot avail Edward P. Little; for he had the benefit of the mortgaged property, in the application of the proceeds of its sale to the payment of the joint notes of himself and C. E. Little; and consequently all equitable claim, on his part, to have the advantage of security, or to be protected from injury by their employment of it, is fully answered; nor can he disclaim knowledge of and assent to the disposition of the mortgaged property, for he, with his co-signer, had been sued on the notes dated Sept. 21, 1852; and the suit was discontinued, and one of the notes surrendered by Smith, upon receipt of the proceeds of the sale.</p> <p>1. The notes were indorsed to the plaintiff when overdue, so that he is in the position of Smith, the payee.</p> <p>2. Parol evidence was admissible to prove that Poss and E. P. Little were only sureties. Harris v. Brooks, 21 Pick. 195; Carpenter v. King, 9 Met. 511; Lord v. Moody, 41 Maine, 127, and cases there cited.</p> <p>3. Smith, by giving up the security of the furniture furnished by O. P. L., the principal, or by diverting it to a different purpose, without the assent of the sureties, discharged them. Baker v. Briggs, 8 Pick. 122; Carpenter v. King, 9 Met. 511; Commonwealth v. Miller, 8 S. & R., 452. And this, upon the well settled and equitable principle that a surety, upon paying a debt, is entitled to stand in the place of the creditor, and be subrogated to all his rights against the principal.</p>

Action op the case. Tbe plaintiff recovered judgment against tbe York and Cumberland Eailroad Company for $166,33, March 19, 1855. He afterwards took out, successively, two writs of execution upon said judgment, both of wbicb were returned in no part satisfied. He, thereupon, on tbe 12th day of July, 1856, commenced this action against tbe defendant, as a stockholder in said company, who pleaded thereto the general issue, and, by brief statement, the statute of limitations.

Petition for partition of two parcels of land described in separate counts in the petition. The petitioner claims three-eighteenth parts in common with the respondent of each of said parcels. The case was entered at the January term, 1856, and tried at October term, 1857, before Appleton, J. The verdict was for the petitioner. The case is presented on Exceptions, taken by the respondent to various rulings and instructions of the Judge at the trial.

' In this case, the principal defendants were defaultedand-the' alleged trustee disclosed that he had formerly been the treasurer of the railroad ' company, and that there was a balance due from him to the company. Thereupon William' Wil-lis and James C. Churchill appeared and claimed the funds in; the hands of Eaton, by virtue of a' conveyance' of all the pro-. perty belonging to the - railroad company, made to them in trust, for certain purposes, January!, .1857.

Action of the case, commenced by Edward Hooper, the plaintiff’s intestate, upon the statute to recover damages for an injury to his person, caused by an alleged defect in a highway. The action was entered at the January term, 1857. During the January term, 1858, the said Edward Hooper deceased, and the suggestion of his death was entered upon the docket of that term.

This case is presented on plaintiff’s Exceptions to the order of Davis, J., at Nisi Prius, discharging the trustee on his disclosure. The alleged trustee made the general declaration that he had in his'hands no goods, &c., and submitted himself to examination.

<p>Assumpsit upon, a writing declared on as a promissory note, which is as follows: —</p> <p>“ $1500. Boston, May 1, 1854.</p> <p>“Six after date, we promise to pay to the order of L. Monson, president of the Metropolitan Eire and Marine Insurance Company, of Boston, fifteen. hundred dollars at Merchant’s Bank, Boston. Value received.</p> <p>“ Erothingham & Workman.”</p> <p>On the back .of. the note was this indorsement, “ Metropolitan E. & M. Ins. Co., by L. Monson, President.”</p> <p>The writ contains several counts; the first count is on a note payable to L. Monson, or his order, (and by him indorsed,) payable in six, (meaning six months,) after the date thereof;, second,, as for a note payable in six (meaning six months,) after its date, to said company, or their order, and indorsed by L. Monson, their president, being thereto lawfully authorized, &c.;. third, for money had, &c.</p> <p>Plea, general- -issue, and joinder. At .the trial, before Davis, J., the plaintiff read in evidence the note declared on, and called Jesse Eogg, who testified that he is one of the assignees of said company, and, since March 3, 1855, has had charge of its business, the company having gone into insolvency ; Luther Monson was acting president of the company in 1854-5. The witness produced and identified the record book of the stockholders, and of the directors; [from which plaintiff read sundry by-laws which relate to the authority of the president of the company, to execute papers and generally to superintend the business of the company, <fcc.] The witness further testified that, “ as assignee, I presented to defendants, during the summer of 1855, at Montreal, a note of §1501, dated April 12, 1854, and requested its payment. They asked me if I had the other note —I inquired, what note? They turned to their books and said another note given for addition on same policy for §1500 on six months, the same policy for which they had given the note of $1501.”</p> <p>“ I have examined the company’s book of bills receivable, (which book is produced,) and find only two notes of defendants, one of April 12,1854, for §1501, and another of May 1, 1854, for $1500.”</p> <p>The plaintiff testified that, in the first week of October, 1854, he discounted the note in suit, at its face — that he and others had a claim against the company for a loss the company had insured against, and in settlement he took this note and paid the others their part, in cash.</p> <p>The election of Monson as president, and of E. W. Thayer as secretary of the company, for the years 1853-4, was shown by the company’s record.</p> <p>The defendants offered evidence in support of their account in set-off, which was for the amount due them from said company for losses they had sustained and which the company had insured against.</p> <p>All the evidence was received, subject to all legal objections.</p> <p>The case was withdrawn from the jury, the parties agreeing that the presiding Judge should report the evidence for the determination of the full Court, who are to enter such judgment as the law, and so much of the evidence as is legally admissible require, with power to draw such inferences of fact as a jury would be authorized to draw.</p> <p>That plaintiff has no title to the note or paper; it was never legally transferred to him.</p> <p>It is payable to the order of L. Monson. The words “ president,” &c., are only used as descriptio persones. It is not indorsed by Monson, but by the company.</p> <p>If it is to be regarded as a note to the company, there is no evidence in the case that Monson had any authority to indorse or transfer it. The president had no authority ex officio. Ang. & Ames on Corporations, 294, c. 9,, § 9, (2.)</p> <p>, Nor had he authority by the charter or by-laws. . No vote or direct authority of any kind has been proved.</p> <p>The note is void for uncertainty. “Six after date.” Six what ? Here is a patent ambiguity, and parol testimony is not admissible in explanation. 2 Parsons on Cont. 75, 78.</p> <p>On the 1st of May, 1854, the defendants gave their note for $1500. The time when they were to pay this sum is left uncertain by the terms of the note.</p> <p>In contracts of this sort, ambiguities and uncertainties frequently appear, and the Court, in the exercise of its discretion, constantly infers from the paper itself, or the circumstances under which it is given, or from both of them, what was the actual intention of the parties, rather than that the maker of an instrument should avoid it and derive advantage from his own want of accuracy. Thus, Courts have again and again found in the figures on the magin of the note the amount the maker agreed to pay, even where there was no sum named in the body of the note; and they do this, not because the figures are a part of the note, for when there is a discrepancy between these and the sum named in the body of the note, the figures are always rejected, but as something to aid the Court in concluding what was the intention of the parties.</p> <p>This practice of the Courts is a far greater stretch of a discretion wisely vested in them than is the inference of the time when a note is payable, when the note is silent on the subject. No one wonders when the Court infers and declares that where a note, otherwise perfect, is wholly silent as to the time when payable, that note is payable presently.</p> <p>So far as any thing contained in the note is concerned, it is just as void for uncertainty as the one declared on in this suit. But, where it is evident from the paper itself, it was the intention of the parties to make a note payable at some future time, and that time is left unnamed, it is the duty of the Court to leave the question of time to the jury upon proper allegations in the writ.</p> <p>I. As to the nature of the instrument. It was a note payable in six months after date.</p> <p>(1.) Where there is a contradiction, ambiguity or uncertainty in the terms of the instrument, it may, especially against the party making or negotiating it, be so construed as to give effect to it, according to the presumed intention of the parties. Chitty on Bills, 10th ed., 131.</p> <p>(2.) Anote payable “twenty-four after date,” is not void for uncertainty, nor is it a note on demand; it is payable some time after date. Such a note is admissible in evidence without other testimony, under an averment in the declaration that twenty-four months after date was the time meant by the parties, the jury being the judges of the fact of the time intended. Conner v. Routh, 7 How. Miss. 176, (in Byles on Bills, 3d ed., 70, note, and in 2 Supp. U. S. Dig. p. 603, § § n, is-)</p> <p>II. To whom payable.</p> <p>In contracts not under seal, if the agent intend to bind his principal and not himself, it will be sufficient if it appears in such contract that he acts as agent. Andrews v. Estes, 2 Fairf. 267; Shotwell v. McKown, 2 South. 828; Penty v. Stanton, 10 Wend. 271; Mann v. Chandler, 9 Mass. 335.</p> <p>A bill of exchange directed to “John A. Wells, cashier Farmers’ and Mechanics’ Bank, of Michigan,” and accepted by writing across the face thereof, “ accepted, John A. Wells, cashier,” is drawn upon and accepted by the bank, and not by Wells in his individual capacity. Farmers' and Mechanics' Bank v. Troy City Bank, 1 Doug. 457, cited 3d ed. Byles on Bills, 52, note.</p> <p>The indorsement of a promissory note, payable to an insurance company, in the form “ W. Earle, as secretary,” is to be considered as the indorsement of the company, if nothing further appear to indicate that it was intended as the indorsement of some other party. Nicholas v. Oliver, Boston Law Reporter, February, 1858, p. 592.</p> <p>III. The note was properly and legally negotiated and transferred.</p> <p>By the 7th Art. of the by-laws, the cash funds, under which term notes of hand are included, were placed at the disposal of the president, whose action bound the company.</p> <p>The testimony of Welch, who was a clerk for the company in 1854, is conclusive as to the power of the--president to transfer the notes of the company, and shows that the notes in suit were transferred with the knowledge and consent of the directors.</p> <p>Monson was really the general agent, president, treasurer and cashier of the company, and, as such, was authorized to indorse notes. Odióme v. Maxey, 13 Mass. 178; White. v. Westport Manuf’g Co., 1 Pick. 215; and any restriction upon his authority to indorse must be proved by the party contesting it. Wild v. Passamaquoddy Bank, 3 Mason, 505; Badger v. Bank of Cumberland, 26 Maine, 428, and cases cited in Byles, p. 130, n.</p> <p>Proof of the acts and proceedings of the president and directors of the company, from which it may be inferred that any person was authorized to indorse the notes of the company, Í3 competent evidence of such authority. Nichols v. Oliver, (N. H.) in Law Reporter, Feb. 1858, p. 592. The decision in Barker v. Mechanics’ Ins. Co., (3 Wend. 98,) is opposed both to principle and authority. Angelí & Ames on Corp. (3d ed.) 286, and cases cited.</p>

This was an action against the defendant as surviving partner of the firm of Blanchard & Smith. The facts are substantially stated in the marginal note, and also in the opinion of the Court. ■ The case finds that the defendant’s- firm, as agents, of plaintiff, made sale of one-sixth part of the vessel, and received the proceeds thereof.

<p>This, is an action of Covenant Broken, on an assignment made under the statutes of this State, by D. Y. Kendall to the defendants. of. all his property for the benefit of such of his. creditors as should become parties thereto. The plaintiff alleges in his declaration, that he and certain other creditors of the. assignors became parties to the assignment within the time prescribed by law.</p> <p>The defendants demurred generally to the declaration, and the plaintiff joined in the demurrer. The case was presented to the full Court and heard on the pleadings.</p> <p>The damage which plaintiff claims of defendants, if inflicted, was inflicted upon all who became such parties, and not on plaintiff alone. The right of action which' plaintiff has, if any, is jointly with the others, who, as he says, seasonably became parties thereto.</p> <p>“ It. never lies in the option of the covenantees to say whether they shall ■ sue for the breach jointly' or severally. They must sue jointly if they can.” Parsons on Contracts, vol. 1, p. 14.</p> <p>' Though a covenant be joint and several in the terms of it, yet, if the interest and cause of action be joint, the action must be brought by all the covenantees. Ecdeston v. Clips-ham, 1 Saund. 153.</p> <p>“ In general, all contracts, whether expressed or implied, and resulting from the operation or construction of law, are joint where the interest in them of the parties for whose benefit they are created, is joint, and separate where that interest is separate,” Parsons on Contracts, yol. 1, p. 14, and. cases cited; Slingsby’s case, 5 Coke, 19. .</p>

<p>In a suit between other parties, parol evidence is admissible and sufficient to prove that a person was president of an insurance company, and that he had authority to indorse notes for the company.</p> <p>If the president of an insurance company is empowered and required, by the by-laws, to adjust and pay all losses, authority to transfer and dispose of the funds of the company for that purpose, including negotiable paper owned by them, may be presumed; for the imposition of the duty implies the grant of authority necessary to its performance.</p>

Petition for certiorari, praying that the proceedings of the city council, in making certain alterations in Temple street, in the city of Portland, might be quashed. The facts are nearly all stated in the opinion of the Court. Several errors were assigned, some of which were not relied upon in the argument.

The petitioner, from the year 1812 to the time of her death in 1855, was the husband of Betsey Mace, who died intestate and childless, (never having had any issue.) At the time of her decease, she was possessed of real and personal estate. There would remain in the hands of the respondent, on the settlement of his final account of administration, a balance exceeding the sum of $1000, which the husband claimed he was by law entitled to.

In 1857, a change was made in the location of the railroad of the respondents, running through the city of Portland, by which a portion of the petitioner’s land was taken. The County Commissioners awarded him the sum of one hundred dollars as a compensation for the damages sustained by him, of which he had due notice.

<p>The recitals in a tax deed, unless made so by statute, are not, in themselves, evidence of a compliance with the statute in making the sale; but the burden is upon the party claiming title under such deed to prove, by other evidence, a full compliance with the requirements of the statute.</p> <p>No lapse of time will afford presumptive evidence of the regularity of a tax sale, when the purchaser, and those claiming title under him, have had no possession under the deed. But an ancient deed and its recitals, with subsequent, long continued and uninterrupted possession, are evidence from which a compliance with the requirements of the statute may be presumed. The question so raised is one of fact, to be determined by the jury, upon all the evidence in the case.</p>

<p>A motion for a new trial, on the ground that the verdict is against the weight of evidence, will not be considered by the full Court, unless the report of the evidence is duly authenticated by the Judge who presided at the trial.</p> <p>Amendments may be allowed at the discretion of the Court, when the cause of action can be perceived and rightly understood, although the declaration is inartificially and defectively drawn; thus, the words “ convenient privilege of passing” may be construed to mean convenient way or road, when, from the whole declaration, such is manifestly the sense in which these words are used.</p> <p>When a party is allowed to amend, on terms which are accepted by him, the full Court will not subsequently modify those terms, though it should appear that the amendment was unnecessary. Whether the full Court has the power thus to interfere, quaere.</p> <p>When, from the papers presented, a subject matter apparently falls within the jurisdiction of the Probate Court, and duo proceedings have been had therein, without appeal or objection, the final decree of that Court will be conclusive.</p> <p>What will constitute due diligence in the search for public records and documents, so as to admit secondary evidence in proof of their contents, will depend upon the circumstances of each particular case. — Thus, where the register of probate testified that he had made search of the records in the case of S. N.; that he found but part of the papers in that case; that he found the files in bad order, in very bad condition; that some of the files were broken open and loose, and that he examined the indexes of the records for the year or two spoken of, without finding the papers desired or reference to the record thereof in the indexes, the Court will admit parol evidence to show the contents of such papers, especially when the transaction occurred many years before.</p> <p>The construction of a deed, or other instrument in writing, is matter of law, and should be determined by the Court; but when a question of law has been improperly referred to the decision of a jury, their verdict will not be set aside for that cause, if it be apparent that the question has been correctly decided by the jury.</p>

Replevin of a ship. The defendant pleaded non cepit, and, in his brief statement, avows the taking and prays return, setting forth in proper form, that he took the ship as a deputy of the sheriff of this county, by virtue of a writ of attachment in favor of Page & als. of Boston, against E. & E. Perkins of Biddeford, in which writ the plaintiff claimed to recover of said defendants for iron, &c., used in the building of said ship, which was attached on said writ, within the…

<p>Assumpsit upon a joint and several promissory note, payable by defendant and Cyrus K. Drake, to plaintiff, or order, for §1313,50, in six months from its date, (Sept. 14, 1854,) with interest.</p> <p>The case was tried before Goodenow, J., at the April term, 1858. It appeared in evidence that the plaintiff had contracted with the United States government to carry the mail on route number 115, from July 1, 1853 to July 1,1857. After-wards, Sept. 14, 1854, he transferred his interest in said contract to Keay & Drake, jointly, and sold to them his stage stock, for which he took the promissory note in suit. The contract with the post-office department still remained in his name, and he only could collect the quarterly payments. By an arrangement between all the parties, on or before Sept. 30, 1855, the plaintiff was there afterwards to collect the amount due on the contract, quarterly, and apply it upon the note.</p> <p>The plaintiff testified that, subsequently, an .arrangement was made between himself and Drake that the amount to be collected should be applied, not upon the note given by Keay & Drake, but upon another note held by the plaintiff against Drake alone; and that he had applied what he had collected accordingly.</p> <p>The defendant filed an account in set-off for the amount so received by the plaintiff, and contended that it should be applied to the note in suit. This account was allowed by the jury to the amount of $525, and they returned a verdict for the plaintiff for the balance due on the note, after deducting that sum, together with other payments which had been indorsed. Whereupon, the plaintiff moved for a new trial, on the ground that the verdict was against law and the evidence in the case.</p>

<p>Assumpsit upon an account annexed to the writ. The writ also contained a special count upon an alleged contract between the plaintiff and the school district, by which the plaintiff agreed to build a school-house for the district of certain specified dimensions, and for a stipulated price. It was alleged, in this count, that the plaintiff built said house according to said contract, and that it was thereupon accepted and occupied by the defendants.</p> <p>The case was tried at the Sept, term, 1857, before Hathaway, J. The plaintiff called a witness by whom he proved the performance of the labor on the school-house; and, upon cross-examination, it appeared that this labor was performed under a written contract. The same witness testified that, since that time, the school-house had been used and occupied as such by the defendants. The plaintiff here rested his case.</p> <p>The counsel for the defendants then opened the defence to the jury; and offered in evidence a paper, which he alleged to be a contract between the parties, under which the labor was performed. The plaintiff objected to the admission of the paper until its execution was proved. The defendants proved the handwriting of the persons who signed the alleged contract for the district; but, there being no evidence that they were authorized to sign it, the paper was excluded.</p> <p>The defendants then offered in evidence a boob, purporting to be the boob of records of the school district; and they called Joseph Hasty as a witness, who testified that he had formerly been the clerk of the district, and that the book contained the records of the district. But, it appearing that the said Hasty was not clerk of the district, at the time of the trial, the book was excluded.</p> <p>The counsel for the defendants then presented a motion for a nonsuit, which was ordered by the Court.</p> <p>contending that evidence had been introduced by both parties; and therefore, in ordering a nonsuit, the presiding Judge exceeded his authority. Lyon v. Sibley, 32 Maine, 576.</p> <p>The nonsuit was properly ordered. The plaintiff could not take the first step in his case without introducing the contract declared on in the writ. Because the plaintiff is not entitled to the actual value of the work, per se, but only to the contract price, minus such a sum as would complete the work according to the contract.</p> <p>The contract price is indispensable to determine the proper measure of damages. If the proof had been that the labor was performed, and the materials furnished, according to the contract, the plaintiff would have been entitled to the whole of the contract price.</p> <p>If, as we contend, the work and materials were not according to the contract, but of less than the stipulated value, then was the plaintiff entitled to the agreed price, deducting therefrom so much as the house was worth less on account of the variations from the contract.- Jewett v. Weston, 2 Eairf. 346; Hayden v. Madison, 7 Greenl. 76; Hayward v. Leonard, 7 Pick. 180; Thornton v. Place, 7 M. & R. 218; Phelps v. Sheldon, 13 Pick. 50; Wadleigh v. Stitton, 6 N. H., 15; Ellis y. Hamlin, 3 Taunton, 53; Cutler y. Cien, 5 Car. & Paine, 337; Marshall v. Jones, 2 Pairf. 54; Chitty on Contracts, (5th Am. ed.,) 569; 1 Parsons on Contracts, 387; Norris v. School District No. 1, in Windsor, 3 Pairf. 293.</p> <p>Where, upon the trial of a cause, there is no proof except what is offered by the plaintiff, and that is insufficient to warrant a verdict for him, a nonsuit may be ordered. Sandford y. Emery, 2 Gfreenl. 5; Perley v. Little, 3 Grccril. 97; Pray v. Garcelon, 17 Maine, 145; Head v. Sleeper, 20 Maine, 314; Hoyt v. Gilman, 8 Mass. 336.</p>

Writ op entry, in which Benjamin Blaisdell was joined as defendant with said Fletcher and wife. At the second term, after entry, the said Blaisdell disclaimed all title to, and interest in, the premises demanded; whereupon, the demandant amended his writ by striking out his name as a defendant. The demandant claims to recover of the said Fletcher and wife a tract of land situate in Berwick, containing about forty acres. The said Fletcher and wife pleaded the general issue.

Action op Trover, commenced before a justice of the peace, who, on Eeb. 20, 1853, rendered judgment for plaintiff; from which defendant appealed, and entered into a recognizance to prosecute his appeal, “ and pay all intervening damages and costs.” The defendant entered his appeal at the next term of this Court in this county, and the action was continued from term to term until April term, 1857, when the plaintiff moved that the appéal be dismissed, because the defendant…

Assumpsit upon a policy of insurance. On the last day oí January, 1851, Ira Ramsell applied to the defendant corporation for insurance upon his buildings, representing them to be free from incumbrance, and guaranteeing a lien thereon. The company issued a policy thereon February 3, 1851. At the time when this policy was issued, Ramsell was not the owner of the property, but the title was in one John Jameson.

Petition for enforcing a common law lien under the provisions of c. 213 of the laws of 1856.

This was a complaint against tbe defendant for selling intoxicating liquors in violation of law. He was tried before the municipal court of the city of Biddeford, and, being convicted, appealed to this Court. The complaint was in the following words:— “State of Maine — York ss: — “ To Samuel W. Luques, Esq., one of the justices of the peace within and for the county of York.

This was an indictment against the defendant for maliciously, &c., setting fire to “ a certain barn of one William D. Cook and one Sylvester Cook.” The case was tried before Goodenow, J., at April term, 1858.

Assumpsit for an alleged breach of promise to marry the plaintiff. The trial, before Cutting, J., at the August term, 1857, resulted in a verdict for the plaintiff. The case is presented to the full Court, on Exceptions to various rulings and instructions of the presiding Judge at the trial.

<p>Writ op entry, to recover a parcel of land in the town of Porter. It is admitted that the title to the premises in controversy was formerly in Meshach Pike, from whom each party now claims title; the tenant, under the levy of an execution in favor of Davis & al., against Joseph J. Merrow and said Pike, the creditors in said execution having conveyed to him the title they acquired by the levy; the demandant, under a deed from said Pike to him, made subsequent to the levy.</p> <p>A statement op pacts was agreed upon by the parties, and the case is thereupon submitted to the full Court. The validity of the levy is controverted. But two of the appraisers signed the return; and, in the agreement of the parties, it is admitted that they will amend their return, if they can legally do so, by adding thereto as follows: — “and we have this day appraised the same upon our oaths aforesaid, at the sum of five hundred and fourteen dollars and fifty-two cents, and no more, in full satisfaction of this execution and all fees, and we have set out the same tract of land by metes and bounds to the creditors within mentioned.”</p> <p>And, if the Court permit said amendment to be made, and the levy shall be adjudged sufficient in law, or if so adjudged without such amendment, judgment shall be rendered for defendant ; otherwise, for the demandant.</p> <p>It appears by tbe return of the appraisers, indorsed on said execution, and also by the certificate of the officer, that the appraisers were sworn to appraise such real estate of the within named Meshach Pike as should be shown to them to be appraised, &c.</p> <p>The officer, among other things, certifies in his return, on the back of the execution, that, the creditors “ thinking proper to levy the execution on the real estate of the within named Meshach Pike, to satisfy this execution and all fees, I have this day (May 19,1846,) caused the appraisers (naming them,) to be sworn, &c., to appraise such real. estate of the within named Pike as should be shown to them, to satisfy this execution, &q., the said J. W. being chosen by myself, and the said J. H. by L. D. S., the creditors’ attorney, and the said G-. M. R. by the debtor within named, and the aforesaid tract of land,” &g.</p> <p>The levy is invalid. It appears that Pike, at the time of the levy, resided in the town in which the estate, levied on as his, is situated. But it does not appear, that he either selected, or was notified to choose one of the appraisers, and declined to appoint one. This should appear affirmatively. R. S., 1841, c. 94, § 4; Means v. Osgood, 7 Maine, 146; Thompson v. Oakes, 13 Maine, 407, and ibid, 157; Pierce v. Strickland, 26 Maine, 411.</p> <p>The officer returns that “ the debtor” chose one of the appraisers. But which debtor, Merrow or Pike ? The proceedings do not show.</p> <p>The appraisers do not state in their return that they entered upon, appraised, or set off the land. R. S. c. 94, § 6. Nor does this appear in the return of the officer. R. S. c. 94, §24; Félch v. Tyler, 34 Maine, 463; Huntress v. Tiney, 39 Maine, 237.</p> <p>Even if the appraisers’ return were amended as proposed, the return of the officer would be fatally defective. The officer refers to their return for one purpose only, that of describing the land. Their return is not referred to by him to show that they set off the land, nor does he state that they set it off, nor does he in any way adopt their certificate as a part of his return.</p> <p>Now, after a lapse of twelve years, it is proposed that the appraisers be permitted to amend their return, so as to make valid and effectual their proceedings, admitted to be, as they now appear, wholly ineffectual to pass the estate; thus permitting the appraisers, by their mere certificate, to do what could not be done by a witness under oath; to supply defects in their proceedings, that parol testimony would be inadmissible to supply; and that too, against the intervening rights of third parties. Means v. Osgood, 7 Maine, 147; Pierce v. Strickland, 26 Maine, 561.</p> <p>No authority for such an amendment as that asked for, of a return of appraisers, can be found either in this State or in Massachusetts.</p> <p>Only two of the appraisers signed the certificate of return ; and it does not appear that the third appraiser acted, nor is any reason stated why the return was not signed by him. R. S. of 1841, c. 94, § 9.</p> <p>That by the officer’s return it appeared with sufficient certainty that one of the appraisers was chosen by Pike, “ the debtor within named.” The debtor named within, may well be construed to mean in the return made by the officer. And “within” the return no other debtor is named than Pike. No legal necessity exists requiring the Court to recognize a fatal ambiguity beyond the well defined and unambiguous language of the officer’s return.</p> <p>The return of the appraisers is referred to and adopted, as to the description of the land; all other requirements of the statute appear in his return to have been complied with.</p> <p>The necessity for the amendment of the appraiser’s return, as asked for, is admitted. And, for aught that appears, the appraisers have full data by which to amend. The lapse of time furnishes no valid objection to the performance of an act, when the principle is admitted upon which the act is founded, if the rules of law which govern the performance are observed. And especially in a case like this, where the admission of the principle is alone in controversy, and the possession of the means to amend is not controverted in the agreed statement of facts. The mode of procedure is correct, if this comes within the class of cases legally amendable.</p> <p>The rights of third parties have not intervened so far as to prevent the amendment. The record of the appraisers’ and officer’s return furnishes abundant knowledge to subsequent claimants under the debtor, “ that all the requirements of law have, probably, been complied with,” and, if after this, in the language of the Court, in Whittieer v. Varney, 10 N. H. 291, “he will, notwithstanding, attempt to procure a title under the debtor, he should stand chargeable with notice of all the facts, the existence of which is indicated and rendered probable by what is stated in the record, and the existence of which can be satisfactorily shown to the Court.”</p> <p>The existence of such facts in this case is shown to the demandant by the record, and to the Court, by the agreement of facts. If there were nothing else, the record of the officer’s return is a sufficient basis for the appraisers in making their amendment. Fairfield v. Paine, 23 Maine, 498; Fitch v. Tyler, 34 Maine, 464.</p> <p>It appears that all the appraisers were sworn, and that all acted in the appraisement, which are all the facts required to be certified in this particular.</p>

Action of debt, brought on. the statute of 1841, c. 172, to recover money lost by betting on the election of a candidate for the office of Governor.

Trespass, quare clausum, commenced July 25, 1856. Plea, general issue, with a brief statement, the substantial matter of which is: — That, on the 6th day of April, 1803, Jonathan Cummings, the defendant’s father, being lawfully seized in fee of the close described in the plaintiff’s writ, in consideration of ten dollars, conveyed the same to Nathan Wood-bury, and four other persons named, all of Paris, being a committee appointed to build a meeting-house in said town, and to…

This is a complaint under the statute, brought by the inhabitants of the town of Hiram, to compel the respondent to contribute towards the support of his alleged grandchild, who is supported as a pauper by the complainants. The respondent, in his answer, denies that he is of kindred of the pauper, who, he alleges, has no legal settlement in said town of Hiram, and is not legally chargeable to said town.

<p>Where tlie parties to a suit-entered into a statute submission of tbe cause of , action (which, was trespass) set forth in the writ, which was annexed to the submission,' the declaration in the writ will be deemed a sufficient specifica- ■ tion of the claim submitted, to answer the requirement of the statute.</p> <p>If the name of the plaintiff’s attorney appear on the back of the writ, it will be considered a sufficient signing of the claim, required by the statute, although the words “ from the office of” precede the attorney’s name.</p>

Libel of the husband for divorce from the bonds of matrimony for his wife’s alleged desertion of him. On Exceptions to the'ruling of Goodenow, J., at Nisi Prim, that the libel does not present a case within the jurisdiction of the Court, and that the same be dismissed. The allegations contained in the libel sufficiently appear in the opinion of the Court.

Assumpsit, upon a writing sighed by the defendant, dated May 31, 1851, of the following effect: — “Received of Ira H. Plaisted, Deputy Sheriff, for safe keeping, [certain goods and chattels, specified,] which property the said officer has taken by virtue of an execution against John Hoar in favor of Joel Wright, and, in consideration thereof and of one dollar, paid, &c., I hereby promise safely to keep said property three months, and, at the expiration of said time, to…

<p>A sheriff’s deed of an equity of redemption is inoperative if the facts required by statute are not recited.</p> <p>If the debt secured by mortgage has not been paid, the mortgagee has the right to the possession.</p> <p>If it has been paid, the remedy is in chancery and not by action at law.</p> <p>A widow is barred of dower in land conveyed by her husband before the marriage, though the deed has not been registered.</p> <p>A widow is entitled to dower in an equity of redemption of a mortgage, but the land mortgaged must first be redeemed from the mortgage.</p> <p>If the heir or person claiming under the husband shall redeem the mortgage, the widow shall repay her proportion of the money paid for the redemption.</p>

■ Replevin for certain goods and chattels. The trial of the action, at April term, 1856, before May, J., resulted in a verdict for the plaintiff. The case is presented to the full Court on Exceptions taken by the defendant. The matter in controversy, and the rulings of the Judge at Nisi Prius, chiefly relied upon to support the exceptions, appear in the opinion of the Court. [No briefs or minutes of the arguments of counsel are found on the files of the Reporter.]

<p>Debt, on a judgment alleged to have been rendered by the District Court, in the county of Franklin, in the year 1847.</p> <p>At the trial, before Hathaway, J., the plaintiff introduced, (subject to objection of defendant that the record was not authenticated,) a copy of so much of the record of judgment as was extended on the records of said Court, and proved that A. B. Caswell, who was clerk of said Court, in 1847, had not resided in this State within three or four years last past.</p> <p>Plaintiff also introduced, subject to objection, the docket entries under said action, one of which is “judgment for plaintiff on statement of facts — defendant appeals.”</p> <p>In defence, was introduced, subject to objection, a copy of the record of the proceedings and judgment of the Supreme Judicial Court for the county of Franklin, in an action between the parties, and plaintiff admitted that it was the record of the same case appealed from.</p> <p>The parties, thereupon, agreed that the case should be submitted to the full Court, on report of the evidence.</p> <p>The record of the District Court does not show that an appeal was taken from the judgment there ordered. No writ of execution was ever issued thereon.</p> <p>It appears, by the record of the Supreme Judicial Court, that the appeal was entered at the June term, 1857, and the questions of law arising in the case were argued at the next law term, and afterwards the' Court ordered that the plaintiff become nonsuit. And, thereupon, judgment was entered up, and execution issued for the defendant’s costs.</p> <p>1. An appeal from a judgment upon an agreed statement of facts cannot be taken from the District Court where the action ■was originally brought before a justice of the peace. Phillips v. Friend, 11 Maine, 411; Giles v. Vigereaux, 32 Maine, 565 ; Seiders v. Creamer, 22 Maine, 558; R. S. of 1841, c. 97, § 13; Art. of Amend. § 12; Simmons v. Lord, 18 Maine, 351; Kim-ball v. Moody Sj al., 18 Maine, 359; New Gloucester v. Dan-ville, 25 Maine, 492; Putnam v. Oliver, 28 Maine, 442; Holt v. Barrett, 29 Maine, 76 ; English v. Sprague, 32 Maine, 243 ; Adams v. Adams, 15 Pick. 177.</p> <p>2. An appeal taken where no appeal lies is a mere nullity, and an execution or an action of debt may be sued out upon the judgment appealed from. Campbell v. Howard, 5 Mass. 376; Com. v. Messenger, 4 Mass. 462, 471.</p> <p>3. The proceedings in the Supreme Judicial Court in the original suit being a mere'nullity, were irrelevant and inadmissible. The plaintiff here, therefore, is entitled to recover.</p>

<p>Assumpsit, for the support of paupers alleged to have their settlement in the defendant town. The writ is dated Januá ry 6, 1857. The case is thus stated by the parties:—</p> <p>“ The overseers of the poor of the town of New-Vineyard legally notified the overseers of the poor of the town of Phillips, January 12, 1855, that the alleged paupers, named in-the plaintiffs’ declaration, had fallen into distress and become chargeable in New-Vineyard as paupers of said Phillips. Which notice was not answered by the overseers of the poor of said Phillips, in terms rejecting said paupers, as required by law. That the overseers of the poor of said New-Vineyard, subsequently, to wit, April 11, 1855, gave the overseers of -the poor of said Phillips.a new and independent notice that said paupers had fallen into distress,- Ac., in New-Yineyard,. without, in any way, referring to their former notice, which last notice was seasonably and properly answered according to law, rejecting said paupers, by the overseers of the poor of said Phillips; that, again, the third time, the overseers of the poor of New-Yineyard, on the twenty-first day of April, 1856, gave the overseers of the poor of said Phillips a new and independent notice, that said paupers had fallen into distress, Ac., in New-Yineyard, without, in any way, referring to either of their former notices. Which last and third notice was not seasonably answered by the overseers of the poor of said Phillips. But the inhabitants of Phillips, by James E. Thompson, one of the selectmen .and overseers of the poor of said Phillips, afterwards, to wit, September 18, 1856, settled and paid the inhabitants of New-Yineyard the sum of $59,56, being in full for the removal of said paupers and their support from January 21, 1856, to July 5, 1856; which settlement was in full for all claims of the inhabitants of New-Yineyard against the inhabitants of said Phillips, on account of said’ paupers, from said twenty-first day of January,- 1856;r.up to the date of the plaintiffs’ writ in said action. Said settlement was not intended to deprive said ■ defendants of' átiy legáT'rights- they acquired, or of any presumptions in their favor, by the means of the giving of said second and third notices to the overseers of the poor of said Phillips, by the-overseers of the poor of said New-Yineyard; nor to deprive the inhabitants of said New-Yineyard of any of their legal .rights to collect of the defendants the expense of supplies furnished said paupers by them prior to said 21st day of January, 1856, if they did not, by operation of law, waive said legal rights by reason of the giving of said second and third notice as aforesaid.</p> <p>■ “ If the full Court shall be of opinion, upon the foregoing statement of facts, that the plaintiffs are entitled by law to maintain- their said action, upon proof of the legal settlement of said paupers -in said Phillips, and upon proof of furnishing the supplies, as alleged in their said writ, then the defendants are to be defaulted, and the amount of damages to be audited and determined upon by some suitable person, to be appointed by said Court. But if the Court should be of the opinion that the plaintiffs are not entitled by law to maintain this action, then the plaintiffs are to become nonsuit.”</p> <p>1. That the first notice given by plaintiffs to defendants was waived by plaintiffs’ giving a new and independent notice .of April 11, 1855, and both of these notices were waived by the plaintiffs’ giving the notice of the date of April 21, 1856. Kennebunk v. Buxton, 26 Maine, 61.</p> <p>2. Because all cause of action which the plaintiff had against the defendants, under or by reason of their last notice, viz., the notice of April 21, 1856, including the costs and expenses of removing said paupers, was settled, paid and extinguished by the defendants, Sept. 18,1856, said settlement was in full for all claims of the plaintiffs against the defendants, for or on account of said paupers, for a space of time extending three months back of said notice, and forward to the date of plaintiffs’ writ. The plaintiffs, therefore, having, by operation of law, as well as by manifest intention, waived their first and second notices, and having received payment in full for all their claims, by reason of or under their third and last notice, had no cause of action left against the defendants at the time this action was commenced, and must, according to the agreement of the parties, become nonsuit.</p> <p>Again. The three notices were all exactly alike in substance, differing only in their dates by being given by different boards of overseers. And each of said notices would have been good and continued valid had it alone been the only notice given.</p> <p>It will not be seriously contended that all three of said notices were good, April 21, 1856, and that the plaintiffs had three causes of action accruing Jan. 12, 1855, April 11, 1855, and April 21, 1856, respectively. The plaintiffs caused said paupers to be removed between April 21, 1856, and July 5, 1856. This they did under their last notice, thus electing which notice they should consider valid, and, having so elected which they should be required to do, they are now estopped by their own acts, and by operation of law, to claim any benefit from either (or both,) of their first and second notices, and cannot, therefore, maintain this action.</p> <p>and cited Green v. Taunton, 1 Maine, 228; Palmer v. Dana, 9 Met. 587; R. S, of 1841, c. 32, § 43.</p>

Assumpsit, for medical services, alleged to have been rendered the defendant town in 1851, by plaintiff’s intestate, who was then a resident of the town of Jay. The case is presented for the determination of the full Court on Report of the evidence offered at Nisi Priús. The questions arising in the case, and the evidence bearing thereon, sufficiently appear in the opinion of the Court.

<p>Trover, for a house built by one Higgins upon the land of another, with the consent of the owner.</p> <p>This case is presented on Report of the evidence at Nisi P-rius, May, J., presiding. The facts bearing upon the question decided by the case, sufficiently appear in the opinion of the Court.</p>

<p>■Where a mortgagee has acquired the title of the mortgager, it is tantamount to a foreclosure.</p> <p>If the value of the property mortgaged and foreclosed, be not equal to the sum jdue on the notes secured by the mortgage, the holder has a claim on the tnalcer and indorser of the notes, for the balance.</p>

<p>Exceptions will not lie to the denial of a review by a Judge at Nisi Prim, in the exercise of his discretion, and where there is no direction, opinion or judgment given in matter of law.</p>

Debt, upon judgment rendered by the County Commissioners for the county of Oxford. The actions were commenced March 27, 1857.

Assumpsit on “a promissory note, [of $100,] signed by defendant, dated April 20, 1851, and payable to Benjamin Ryerson, or order, on demand, with interest, and by said Ryerson indorsed.” The case was tried at April term, 1858, Goodenow, J., presiding; and was brought to the law court on Exceptions taken by plaintiff. The matters excepted to appear in the opinion of the Court.

Assumpsit upon account, amounting to $105,35. Plea, general issue, with set-off $26,98. The account is for labor performed on the dwellinghouse of defendant. The parties agreed upon the following statement of the case for the decision of the full Court: — “ The account in set-off is for groceries, &c., taken up at the store of Butler & Dakin. The firm of Butler & Dakin was composed of Charles Y. Butler and Dakin.

<p>Indictment under the statute of 1856, for keeping a drinking-house and tippling-shop. After verdict against him, the defendant moved in arrest of judgment, for reasons which sufficiently appear in the opinion of the Court. The motion was overruled by Goodenow, J., before whom the case was tried, and the defendant filed exceptions.</p> <p>The Exceptions were argued by</p>

Assumpsit to recover an excess of interest beyond the legal rate, paid by the plaintiffs to the defendant upon a loan of money. Plea, general issue, and brief statement of the statute of limitations. Writ dated March 11, 1856.

Charles E. White, the appellee, in the case first named, as administrator of the estate of George H. Small, presented an account of administration, which was approved by the Judge of Probate for the county of Sagadahoc. At the same Court, the Judge of Probate, on application of said Margaret Small, the widow of said intestate, decreed to her an allowance of §700, out of the personal estate of the deceased.

Writ op Entry, dated Feb. 27, 1856. The demandants counted on their own seizin of the demanded premises in fee and in mortgage as assignees of a mortgage given to one J. P. Morse. 'Plea, general issue and brief statement. • At Nisi \Prius, G-oodenow, J., presiding, the plaintiffs produced a' deed of mortgage of the demanded premises from defendant to-said Morse* dated Oct. 1, 1853, to secure the payment of a note of same-date for $280, payable in'one year from date, and…

The question, iu this case, is the liability of said corporation as the trustee of said Adams.

<p>Debt upon a bond, given to release Charles H. Flowers from arrest on execution. The case is presented to the full Court on Report of May, J.</p> <p>Plaintiff introduced office copy of the execution and officer’s return upon the same, and of the judgment upon which the execution issued. Plaintiff also introduced the bond declared on. The principal was arrested in the county of Lincoln by an officer of that county, and gave the bond.</p> <p>In defence, was introduced the certificate of two justices of the peace and of the quorum of the county of Sagadahoc, that the said C. H. Flowers had been admitted to the benefit of the oath provided by statute “ for the relief of poor debtors,” by which certificate it appeared that they had administered the oath to the debtor within six months from the date of the bond.</p> <p>The defendants contended that this constituted a performance of one of the alternative conditions of the bond.</p> <p>That the proceedings of the magistrates of the county of Sagadahoc, were unauthorized by statute, (the arrest having been made in the county of Lincoln,) and constituted no defence to this action; nor do they authorize the chancery of the bond.</p> <p>That, as the bond was not for double the amount for which the debter was liable, it was not a statute bond, and created no obligation on the part of the debter to comply with the requirements of the statute, any further than the terms used in the condition of the bond stipulated. E. S. of 1841, c. 148, § 20; Howard v. Brown 8¡ ais., 21 Maine, 885; Barrows v. Bridge 8¡ ais., idem, 398; Clark v. Metcalf, 38 Maine, 122; Dyer v. Woodbury, 24 Maine, 546.</p> <p>The case does not fall within the provisions of E. S. c. 148, § 43, because there is no evidence of “ mistake, accident or misapprehension,” and, in the absence of all" evidence, the Court will infer none.</p>

This is an action of Dower. The writ, (which is dated Sept. 1, 1856,) contains two counts; in the first count, the demandant claims that she is dowable of a tract particularly described, and in the second, she claims as dower, one-third part of one-seventh of a tract described, containing about 140 acres. The land described in the last count includes that embraced in the first.

Assumpsit upon a policy of insurance of the defendants. Plea, general issue, and brief statement that plaintiff voluntarily and -willfully burned the property insured. At the trial, Goodenow, J., presiding, the plaintiff offered the policy of insurance declared upon, the Act incorporating the company, and the by-laws, forming a portion of it. Also, offered notices of loss. Also, proof of the amount of goods burnt. The destruction of the store by fire was admitted.

Action op Covenant Broken. In his writ, which is dated December 1, 1856, the plaintiff declares, in substance, that on the 4th day of April, 1849, the defendant by his deed, for a valuable consideration, received of Abner Coburn and others, (named,) owners of mills, dams and water power on Skowhegan Palls, bound and obliged himself to, and with each of the before named persons, and to and with each of the grantees of either and all of them, and therein and thereby covenanted…

<p>Writ op entry. The material facts in the case as agreed npon, appear in the opinion of the Court.</p>

Assumpsit to recover a sum due from defendant to plaintiff, for his equitable interest in a house and lot in Fairfield, sold and conveyed to plaintiff. At Nisi Prius, Tenney, O. J., presiding, after the evidence was introduced, the case was taken from the jury, by consent,to be submitted on Report to the full Court, who were authorized to exercise jury powers. The report of the evidence is somewhat voluminous; the nature and substance of it appear in the opinion of the Court.

Writ oe Error, brought by Jacob Benner, the second, Isaac Oliver, Lewis Benner, the second, Edward Benner, the second, and Isaac Schwartz, the last three plaintiffs in error sueing by Rufus J. Eeyler, their guardian and next friend, they being minors and under the age of twenty-one years, to reverse a judgment of this Court rendered against them at the January term, 1856, in favor of Matthias Welt, the present defendant in error.

<p>Dower is demanded in this action of two parcels of land in Jefferson, described in distinct counts in the writ, which is dated September 18, 1851. Plea, demandant not dowable.</p> <p>At the trial, before May, J., a demand of dower of the defendant was proved to have been made by W. H. Ford, agent and attorney of demandant, on April 9, 1851, which demand was in writing, signed by demandant and addressed to defendant, and was as follows: —</p> <p>“ I hereby demand of you my dower and just third part of all lands, tenements and hereditaments of which William Ford, my late husband, late of said Jefferson, deceased, was seized, at any time during my coverture with him, and of which you are now seized of the freehold, and particularly of the land conveyed to James Thomas, by my said husband, by deed dated Oet. 19, 1819, and I hereby require you to assign and set out the same to me, by metes and bounds, according to the intendment of the law in such cases provided.</p> <p>“Jefferson, April 9, 1851.”</p> <p>The defendant objected to this demand, because there was no sufficient description of the premises.</p> <p>The demandant introduced testimony as to the condition of the estate at the time of the alienation of it by the husband of the demandant.</p> <p>The case was withdrawn from the jury, and submitted to the full Court on Report.</p> <p>The questions arising in the case were fully argued; but, the sufficiency of the demand being the only question considered in the opinion of the Court, the arguments and evidence applicable to the other points are omitted.</p> <p>That no form of demand for dower is prescribed or required. All that is necessary is that the defendant should have notice of what land dower is demanded. Even by parol, dower may be demanded and assigned. Baker v. Baker, 4 Maine, 61; Curtis v. Hobart, 41 Maine, 230; Conant v. Little, 1 Pick. 189 ; Jones.v. Brewer, 1 Pick. 315; Atwood v. Atwood, 22 Pick. 283; ShattucJc v. Gregg, 23 Pick. 88.</p> <p>The demand was not sufficient. (1.) It contains no description of the premises out of which the demandant claims dower.</p> <p>The object of a demand is to give the tenant notice of the demandant’s claim. This she cannot do without describing the lot or premises. She might do it by metes and bounds, or by reference to a description in the tenant’s possession; but' it is not sufficient to refer to a deed in the possession of a third person.</p> <p>' Reference to a deed upon the public records is not sufficient, because the tenant is not to be put to the trouble and expense of going to consult them, much less is a reference to a deed which was in the possession of James Thomas in 1819, without informing the defendant where it may now be found. Who has that deed ? We know not. Whether it was ever recorded/ so that information might thus be obtained, we are not informed, and, if recorded, we are not told where.</p> <p>The first part of the demand is still more defective in the matter of description. How is defendant to know when the “coverture” spoken of commenced, and when it was terminated? And how is defendant to get information of what lands the plaintiff’s “ late husband was seized at any time during her coverture with him ?” ■</p> <p>The tenant is entitled to such a description as will enable him to proceed at once, and set out her dower, and thus save to himself cost and rent. Could he have done so in this case, without seeking other information than that contained in the demand ? and that, too, without being informed where to look for it ? There are two lots, the title of which he must trace.</p> <p>(2.) R. S. of 1841, c. 144, § 2, provides that demand shall be made of the person who is seized of the freehold at the time of making the demand, if he be in the State, otherwise, of the tenant in possession. It does not appear that defendant was “seized of the freehold” at that time, or that he was “ tenant in possession.” He may not, on the pleadings, be permitted to deny his tenancy at the time the action was' brought, but, to make the notice good, it must appear that ho was then tenant, or that he was seized.</p> <p>In the case of Baker v. Baker, 4 Greenl. 67, the demand referred to a deed to the tenant. The Court say, “ the tenant readily understood what was intended to be communicated.” That cannot be said in this case.</p>

Assumpsit on account annexed. Defendant duly filed an account in set-off. The case is presented on Exceptions taken by the defendant to instructions given by Appleton, J., the jury having rendered a verdict for the plaintiff.

Dower is sued for by the demandant in a lime-rock quarry, of the whole of which she alleges her late husband, Abel Moore, was seized during her coverture with him. The action was tried at January term, 1857, Appleton, J., presiding. Yerdict for plaintiff for dower, in one undivided half-part of the premises. The case is presented on Exceptions taken by each party. The evidence was also reported on motion for new trial.

The trial of this action, which was granted by this Court, [see Mitchell v. Rockland, 41 Maine, 363,] was had before Rice, J., presiding at Nisi Prius. The verdict was for plaintiff. The case is now presented on motion to set aside the verdict as being against Jaw, and' also on Exceptions to various instructions given to the jury.

<p>This is an action brought by the plaintiffs, as judgment creditors of the Kennebec and Portland Railroad Company, to recover of the defendant, as a stockholder in said company, the amount of their judgment against said corporation.</p> <p>The case, as made by the parties for the consideration of the full Court, will be readily perceived from the opinion of the Court. The questions arising in the case were fully and ably argued by</p>

<p>The notarial protest of a bill of exchange or promissory note duly certified, is legal evidence of the facts stated therein.</p> <p>It is not necessary, in an action against the indorser of a. note, for the plaintiff to prove that the defendant actually received the notice of non-payment. It is sufficient if it appears that the letter containing the notice, was properly directed, seasonably mailed, and the postage paid.</p> <p>And where these facts appear, the plaintiff is entitled to recover, though the defendant prove that the only notice be received was insufficient.</p> <p>The plaintiff having reserved interest at the rate of twelve per cent, per annum, when he received the note from the maker in an action against an accommodation indorser, ü toas held, that the excess over six per cent, should be'deducted.</p> <p>And this fact being proved, by the testimony of the defendant, it was held, that he was entitled to recover costs.</p>

On Report from Nisi Trim, by Rice, J. This was a real action to recover certain premises situated in Hallowell. Both parties claimed under Jacob Wyman, who died in 1835, seized and possessed of the premises. The demandant derived his title, through sundry mesne conveyances, from a deed from Augustus Alden, administrator of the estate of said Wyman, dated Nov. 27, 1837.

Report by Rice, J. These actions were Assumpsit, tp recover of the defendants, respectively, their subscriptions to the stock of the plaintiff corporation. Held: in that case, that the defendant could not be legally held to pay the assessments.

<p>In trover for chattels, the plaintiff offered in evidence a paper material to the issue, purporting to he signed by the vendor of the defendant, and testified that it was signed by him in the plaintiff’s presence. The vendor of the defendant, being called by him, testified that the signature was not made by him, and was not genuine. Being thereto requested by the plaintiff, the witness wrote his name upon a piece of paper, and the plaintiff offered the latter signature in evidence, to be compared by the jury with the former. — Held that the evidence was admissible.</p>

This action is brought to recover for expenses incurred by the plaintiffs for the support of Nancy Sweatland, a pauper, whose legal settlement the plaintiffs allege was in Farming-dale. The facts agreed upon, sufficiently appear in the opinion of the Court. The case was argued by Danforth, for the plaintiffs, and by

The facts in this case, as agreed upon, fully appear in the opinion of the Court. The question in controversy, was argued by

Trespass for false imprisonment. The defendants filed separate pleas.

Exceptions to the ruling of Rice, J., by whom the trustee was discharged. The facts sufficiently appear in the opinion of the Court. (1.) The trustee is chargeable under R. S. of 1841, c. 119, § 58, as having property pledged for the payment of a sum of money. (2.) Eor that he has converted the property pledged to his own use; and must account for it.

Complaint under c. 131 of the R. S. of 1841, in which the respondent is alleged to be the father of the complainant’s bastard child. The respondent filed a general demurrer to the process and proceedings, which was joined. The case is presented on Exceptions to the decision at Nisi Prius of Rice, J., adjudging the complaint and declaration and other proceedings sufficient, on demurrer.

Bill in equity, which is dated March 4, 1858, wherein the plaintiffs allege, in substance, that by an Act of the Legislature of this State, approved on the 26th day of January, 1858, they were created a corporation; that John Ham, deceased, by his last will and testament made a devise in the following words, to wit: — “I give and bequeath to the Maine Methodist Conference Ministers Aid Society, Penobscot & Kennebec railroad bonds to the amount of $800.

Report by Appleton, J. This was an action of trespass on the case against the defendants, as “ directors” of the Penobscot Railroad Company. , It appeared in evidence that said railroad-was located in 1852. The.directors thereupon contracted with certain persons to make and grade that portion of the railroad within the limits of the city of Bangor.

On Report from Nisi Prius, Appleton, J., presiding. Trespass for taking four masts, by a deputy of the defendant, who is sheriff of the county of Penobscot. The writ is dated Sept. 4, 1857.

On Exceptions to the ruling, at Nisi Frius, of Appleton, J. Trespass for taking personal property. Plea, general issue, with a brief statement to the effect that the taking, if there was any, was by virtue of legal process against one Amos Bines, who was the owner of the property. The defendant was, at the time of the alleged taking, the sheriff of the comity of Somerset.

This case was an appeal from the decree of the Probate Court for the county of Penobscot, allowing and approving a certain instrument, as the last will and testament of Mary E. Withee. The following issues were framed and joined by the counsel for the parties, under the direction of the Court, and were submitted to the jury upon the evidence in the case.

Exceptions to the ruling of Appleton, J. This was assumpsit against the defendant as a part owner of the schoner Regulator, for materials furnished for repairs. The facts are fully stated in the opinion of the Court.

Report by Appleton, J. This was an action of trover against the defendant, to recover the value of a cow sold by him, as pound keeper of the city of Bangor. It appeared in evidence that the cow was duly committed to the pound, August 20, 1857. The notices required by the statute were duly given and kept posted three days, from August 20th to August 22d, inclusive.

Exceptions to the ruling of Appleton, J. The case was assumpsit, upon a receipt given by the defendants to the plaintiff, for property attached by him, as sheriff of the county of Penobscot, upon a writ against McNeil, in favor of John A. Wallis. The defence was that there was no sufficient demand within thirty days from the rendition of judgment. The plaintiff testified to such a demand, he having the execution and also the receipt “ with him” at the time of the demand.

Report by Appleton, J. Replevin for a stock of merchandize. The writ is dated March. 14, 1857.

Report by Appleton, J. . Indictment found at August term, 1857, against the defendants for not maintaining in repair a way in said town, called the Rowell road. . It was admitted, under a plea of not guilty, that said road was out of repair during the time alleged, but the defendants denied their liability to keep said road in repair, and contended that it had been discontinued.

<p>In an indictment may be joined a count charging one with larceny, and a count against him as receiver of stolen goods.</p> <p>One, who knowingly receives or aids in concealing goods stolen in another State and brought into this State, is made liable therefor by c. 156, § 10 of Revised Statutes.</p>

Report by Hathaway, J. The action was assumpsit, on a promissory note given by defendant to plaintiffs, for $71, payable “incash or peddlers’ truck at cash prices, on demand.” The defendant’s specifications of the grounds of his defence are, substantially, (1,) that his account in set-off is of greater amount than plaintiff’s demand against him; (2,) that the note was without consideration, and is void; (3,) that defendant does not owe the plaintiffs, and that they are…

Deport by Tenney, C. J. Debt, upon a judgment recovered in 1841. The execution was satisfied, in part, by a levy upon real estate, and the residue by the seizure and sale of an equity of redemption. At the sale, John S. Abbott, who had become the creditor in interest, purchased the equity of redemption. The debtor neglecting to redeem of Abbott within the year, his right of redemption became barred.

Report by Hathaway, J. This is an action of assumpsit, in which the defendant is declared against, as the maker of a promissory note; and was entered at the October term, 1857. Prior to the next (January) term, the defendant filed his specifications of defence, and the action was continued to the May term, 1858, when the defendant filed a demurrer, which was joined. The following report of the case was made: — “ On demurrer.