Volume 46 — Maine Reports

<p>The wife has no vested right, of any kind, to dower in the estate of her husband, before his decease; and, until then, her right may be modified, changed, or abolished by the Legislature.</p> <p>The statute of 1841, (R. S., cl 95, § 15,) restricting the widow’s right of dower in lands mortgaged by her husband before marriage, applies to all cases where the death of the husband has occurred since that Act was passed, though the mortgage may have been redeemed before that time.</p>

Reported by Dayis, J., April Term, 1858. The trustees in this case, Messrs. Held: and were ready to pay to whatever party was legally entitled to receive it.

Facts agreed. April Term, 1858. The facts sufficiently appear in the arguments of counsel, and in the opinion of the Court. The case finds, that on the 6th day of August, 1845, the defendant, George Lord, together with one Hyde and one Duren, formed a co-partnership under the firm name of Hyde, Lord & Duren. That afterwards, on the 27th day of September, 1848, said Duren left the firm, which from that time became the firm of Hyde & Lord.

Reported by Appleton, J., October Term, 1857. This was an action of Assumpsit, upon a promissory note, by an indorsee, against the maker. The defence was, that it was indorsed and transferred by the Secretary of the Atlas Insurance Company, (a corporation formerly doing business in the State of New York,) in violation of the laws of that State.

This was a Bill in Equity, by which the plaintiff sought to •enforce the conveyance of certain real estate to himself, by 4he defendant, under a contract of which the following is a copy:— “ Articles of agreement made and concluded at the city of Portland, County of Cumberland, State of Maine, this twenty-fifth day of February, in the year of our Lord one thousand eight hundred and fifty-three, by and between Isaac Sturdivant of Exeter, N. H., on the one part, and Robert…

Exceptions from the ruling of Dayis, J. This was an appeal from the adjudication of the city council of Portland, in locating Thames street, Aug. 2, 1854, over certain flats, lying below high water mark. The premises in controversy had been used as a dock by the appellants and others doing business at their wharf, which was adjacent thereto. The city council awarded that no damages were sustained by the appellants in consequence of- the location.

Reported by Davis, J., April Term, 1855. Assumpsit upon a writing, of which the following is a copy: — “Town Treasurer’s Office. — Portland, Dec. 14, 1830. “Eor $3000. — Yalue received, I, Charles B. Smith, Treasurer of the town of Portland, by virtue of a vote passed by said town on the 12th day of October, 1829, authorizing the town treasurer to hire a sum not exceeding three thousand dollars for the purpose of erecting an addition to the Alms House, promise to pay William…

Suit in Equity. The bill is inserted in a writ of attachment, dated Sept. 20, 1858.

<p>Exceptions from the ruling of Davis, J.</p> <p>The Portland and Oxford Central Railroad Company in their Petition represent, that said corporation is the grantee of the Buckfield Branch Railroad, with all the privileges pertaining to said road under its charter, and that the said Buck-field Branch road has become a portion of said Portland and Oxford Central Railroad, and connects with the Atlantic and St. Lawrence Railroad, (whereof the Grand Trunk Railway of Canada has become the lessee,) in the town of Minot. That said companies have failed to agree upon terms of connection, or the rates, at which passengers or merchandize, coming from the one, shall be transported over the other, and that the place of connection, prescribed by said lessees of the Atlantic and St. Lawrence road, is distant from the place of actual junction of the two roads, and inconvenient and burdensome to the petitioners.</p> <p>They pray for the appointment of commissioners to determine and award upon the matters of disagreement, &c.</p> <p>This petition, (which is based on the statute of 1854, c. 93,) was returnable at October Term, 1857, when the Grand Trunk Railway appeared and filed an answer. Whereupon the petitioners moved for leave to amend, by making the Atlantic and St. Lawrence Railroad Company a party respondent, which motion was allowed; and, on a subsequent day of the term, the last named company filed its answer.</p> <p>The case was heard at the same term. The nature of the respondent’s answers, and of the evidence produced by the parties, may be gathered from the bill of exceptions 'and the opinion of the Court.</p> <p>Upon the point of organization of the Portland and Oxford Central Railroad Company, the petitioners adduced in evidence the charter of the company; also charter of the Buck-field Branch Railroad Company j book of records of organization and proceedings of company and of directors, which book was admitted, though objected to, on proof that it was the book of records of the corporation, and of the president and directors. Also, notices in two public newspapers.</p> <p>Upon the point of conveyance or transfer of the Buckfield Branch Railroad to the petitioners, they exhibit in evidence, records of Portland & Oxford Central Railroad, doings of corporation and of directors; deed from Smith to said corporation dated, August 10th, 1857; also deed from Parris to Smith, Oct. 29th, 1849.</p> <p>Smith testified, that he was in possession of Buckfield Branch Railroad, under his deed from Parris, and that he transferred possession of said road, with all its property and franchises to the Portland & Oxford Central Railroad Co., on the delivery of his deed to them.</p> <p>The respondents objected to the legal sufficiency of the evidence offered on these two points.</p> <p>The presiding Judge ruled, that the organization of the petitioners was sufficiently made out for the purposes of this case, by the evidence adduced.</p> <p>He also ruled that a sufficient legal conveyance was shown, for the purposes of the present proceeding, to sustain the allegation of the petition, that the petitioners were grantees of the Buckfield Branch Railroad line, with its privileges, &c.; that the conveyance, having been made by Smith, the mortgagee, and he being shown to have been in possession as such, that possession and conveyance were sufficient for the present proceedings, as against parties not claiming any title.</p> <p>He also ruled that the institution of this proceeding was a sufficient evidence of failure to agree upon terms of connection, as alleged in the petition, taken in connection with other evidence in the case, [contained in sundry letters and telegraphic communications.]</p> <p>He further ruled that, by the terms of the Act of March 29, 1853, relied upon by the Atlantic and St. Lawrence Railroad Company, in its answer, this proceeding could be sustained against them as lessors; that the lessees are to be regarded as the servants of the lessors, and that terms of connection could be legally enforced against the lessees only through the means of process against the lessors.</p> <p>He further ruled that the Atlantic company is subject, notwithstanding the provisions of its charter, to the provisions of the Act of 1854, c. 93, though not liable to have terms imposed inconsistent with said provisions of its charter.</p> <p>And upon the point taken in the answer of the Atlantic company, that the Portland and Oxford Central Railroad, whenever built according to its charter, would be an independent crossing road, and not a connecting road with the Atlantic line, and therefore, not entitled now, or at any time, to maintain any such petition for terms of connection with the latter, the presiding Judge ruled and held that if the Portland and Oxford Central Railroad Co., should build and use conjunctively with the road on the east side of the Atlantic and St. Lawrence Railroad any portion of its line, on the west side of the Atlantic road, it would then cease to be entitled to any connection with the Atlantic line; but that until any part of it should be built on the west side of the Atlantic line, it is entitled, by its possession of the immunities of the Buckfield Branch Road Co., to a connection with the Atlantic Road, on its east side.</p> <p>The respondents contended, that if a legal conveyance and transfer of the Buckfield Branch line to the petitioners were made out, such a conveyance, extinguished all the immunities pertaining to the Buckfield Branch line, and vacated the charter of that company, and that the Portland and Oxford Central Railroad Company, having no right of connection by any terms of its own charter, could not maintain this process against either of the respondents. But the presiding Judge held and ruled that the conveyance in question, did not extinguish the alleged immunity of the Buckfield Branch line but conveyed it unimpaired to the petitioners.</p> <p>The presiding Judge, upon the whole case, ordered an entry to be made upon the docket: — “Prayer of the petitioners granted. Commissioners to be appointed.”</p> <p>To which order, and to the several rulings of the presiding Judge, the respondent corporations excepted.</p> <p>The questions presented by the bill of exceptions were elaborately argued by</p>

Bill in Equity to redeem .a parcel of land in Portland. The case was heard on bill, answers and proof. The allegations and nature of the proof appear in the opinion of the Court.

<p>By the Revised Statutes of 1857, c. 87, § 8, an action on the case for slander survives, and, after the death of the plaintiff, may be prosecuted by his executor, or the administrator of his estate.</p>

Petition eor Partition. The case comes before the full Court on Exceptions, taken by the petitioner, to the refusal of Rice, J. to allow costs and appoint commissioners to make partition.

<p>Writ op Scire Facias. The case, as made by the parties, shows that the original action of the plaintiffs against Andrew Hobson & als., as principals, and the present defendants, as trustees, was entered at the May term of Supreme Judicial Court in the year 1853; that, after the trustees had filed their disclosures, the plaintiffs presented allegations of facts which were not disclosed nor denied, and filed their proof in support of their allegations; that, upon a hearing before Howard, J., without the intervention of a jury, the trustees were charged. Judgment was rendered, a writ of execution was duly issued, and seasonable demand made upon the trustees.</p> <p>The plaintiffs then sued out their writ of scire facias, and, at the return term of the Court, the defendants obtained leave to disclose further. To this ruling of Goodenow, J., at Nisi Prius, the plaintiffs excepted. On a hearing, before the full Court, the ruling was sustained. The defendants afterwards filed additional disclosures. And the parties agreed to refer the case to the full Court.</p> <p>The case was argued by</p>

Exceptions from the ruling of Hathaway, J. tiffs’ building and other property, by fire alleged to have been caused by a locomotive engine… Held: that a devisee may maintain an action at common law against a tertenant for a legacy devised out of land, “ for, where a statute, as the statute of Wills gives a right, the party by consequence, shall have an action at law to recover it.” Now the statute of Wills, (32 Hen. 8, c. 1,) was merely a statute, by which the king, waiving…

Facts Agreed, March Term, 1857. This was an appeal from a decree of the Probate Court, assigning dower to Joan C. Hinds, in the real estate of her late husband, Benjamin Hinds. The dower was assigned as of lands of which the said Hinds died seized. That he was in possession, claiming title therein, was not questioned. The appellants and said Benjamin Hinds, and others, were heirs at law of Ashur Hinds, whose estate was divided among them in 1815.

<p>Where one of the boundaries of land conveyed by a deed was, “ thence to mill brook; thence by the bank of said brook to,” &c., it was held, that the grantee’s land is bounded by ordinary high water mark; and this principle is not changed by the fact, that the land continues to rise more or less precipitously above that point. His land is not limited to the top of the hill or bank beside the stream, but extends to the margin of the stream.</p> <p>The Commissioners of the county of Kennebec so located a road as to cross a stream in the city of Augusta. The city made the road as laid out, and erected a bridge across the stream. An owner of land bounded by the stream, brought an action against the city for injury to his premises caused by the bridge, alleging that it was so constructed as to change the current of the stream whereby the damage occurred; — and it was held, that to establish the liability of the city, in this action, it was not necessary that the plaintiff should prove that the bridge was wantonly built so as to injure him; it was sufficient to show a want of qrdinary care in the erection of the bridge, on the part of the officers of the city, and that thereby the injury happened, without any fault of plaintiff, arising from acts or negligence on his part, which contributed to produce the damage.</p> <p>The laying out the way by the Commissioners was a judicial act; but the construction of it, and the erection of the bridge, were acts purely ministerial, and the same rules of law are to be applied to the city, as would be to individuals in the performance of acts of a like ministerial character.</p> <p>And such a case is distinguishable from one of ordinary repair of a highway, falling within the jurisdiction of a highway surveyor.</p>

<p>Reported by Rice, J., November Term, 1851.</p> <p>This was an action of Assumpsit. The writ contained the money counts, and also a special count upon an alleged agreement of the defendant, in consideration that the plaintiff would permit him to assume the defence of a suit pending against him, the plaintiff, in which the defendant was collaterally interested, he would indemnify the plaintiff, and pay all the costs recovered against him.</p> <p>The plaintiff proved the facts alleged in this count. It appeared that the suit referred to was finally decided against the plaintiff, and that he paid the amount of the judgment for costs, being $61,11, June 28th, 1856.</p> <p>Under the money counts, the plaintiff was permitted to prove that the defendant made a parol agreement to sell him two lots of land, each for a specified sum, for both of which the plaintiff paid him; but that when the defendant gave him the deed, a nine acre lot was not embraced in it. Whether it was omitted by accident or design does not appear. But the defendant afterwards, upon request, refused to convey it, and the plaintiff claimed to recover back the sum paid for it, with interest. The evidence admitted was seasonably objected to by defendant.</p> <p>The other facts in the case sufficiently appear in the opinion of the Court.</p> <p>argued, that the defendant was clearly liable for the money paid for the land that was not embraced in the deed. He had agreed to give the plaintiff a deed of it, and, when he delivered the deed to plaintiff, he assured the plaintiff that both parcels of the land were embraced in the deed. And, when the plaintiff afterwards discovered that the nine acre lot had not been conveyed to him, he requested the defendant to give him a deed of it, which he neglects to do, and refuses to return to plaintiff the money paid for it. The plaintiff is entitled to recover back the money with interest.</p> <p>The plaintiff is also entitled to recover the amount he has been compelled to pay to discharge the judgment against him for costs in the Spaulding suit. The defendant was the party interested in defending that suit, and assumed the defence of it. It has been repeatedly held, that when the party in interest commences and prosecutes a suit in the name of a third party, for his own benefit, such party is liable to the plaintiff of record for all costs that may be recovered against him. And there is no difference in principle, whether it be the prosecution, or the defence of the suit, that is assumed by the party in interest.</p> <p>1. The plaintiff seeks to recover for the breach of contract for the sale of lands. That contract not having been in writing, the action cannot be maintained. B,. S., c. Ill, § 1.</p> <p>2. That the whole consideration was for the parcel of land actually conveyed, conclusively appears by the deed, which the defendant himself put into the case. He cannot contradict it by parol testimony.</p> <p>3. The plaintiff’s remedy for the costs paid by him in the suit of Spaulding against himself, was against Elliot, upon his covenants of warranty in the deed of the land in controversy.</p> <p>The promise of the defendant to pay said costs was without consideration. And, if not, it was within the statute of frauds, being a promise to answer for the debt or default of another. Not having been in writing, no action can be maintained upon it.</p>

<p>Indictment under tbe statute for cheating by false pretences, to which the respondent filed a demurrer.</p> <p>and cited State v. Godfrey, 24 Maine, 232; State v. McKenzie, 42 Maine, 392; Vernon v. Keys, 12 East, 631.</p> <p>cited People v. Gates, 13 Wend. 311; Commonwealth v. Strein, 10 Met. 521; State v. Philbrich, 31 Maine, 401; State v. Mills, 11 Maine, 211; Davis’ Preced. 91; Train & Head’s Preced. 85; Rex v. Hamilton, 9 Ad. & El., N. S. 274; Wharton’s 'C. L., § § 2161 and 2150; Commonwealth v. Merrill S¡ al. 8 Cush. 571; Commonwealth v. Hubbart, 12 Met. 446.</p> <p>But one of the several causes of demurrer relied on by the defendant’s counsel was considered in the opinion of the Court, which was drawn up by</p>

Reported by Rice, J., November Term, 1851. This was an action of Covenant Broken. The question involved, was the liability of the defendant’s testator upon his covenants in a deed, conveying only his right, title and interest in the premises. The facts sufficiently appear in the opinion of the Court. 1. The plaintiff had actual notice of the prior deed of a portion of the premises. This portion was inserted in the deed by mistake.

<p>Reported by Rice, J., August Term, 1857.</p> <p>This was an action of Assumpsit, upon two promissory notes, dated October 13, 1855, each for the sum of one hundred dollars, one of them payable in one year, and the other in two years.</p> <p>These notes were payable to Charles Hutchinson, or order, and were by him indorsed to the plaintiff, before maturity. When Charles Hutchinson received the notes, he gave the defendant a deed of the homestead farm, on which his father and mother were living. The plaintiff, also, had lived on the farm the most of the time, and was then forty-five years old. There was an incumbrance upon the farm, when it was deeded to the defendant, which he afterwards paid off and extinguished.</p> <p>The defendant claimed, and testified, that the farm was held for the benefit of his father, and was conveyed to him by Charles, in consideration of his agreement to support his father and mother; and that the notes were given as collateral security for his agreement, and were left in his brother’s hands for that purpose, to be collected if he failed to perform it, and not otherwise; and that the plaintiff, though he had lived at home, had been out of health and had no interest in the farm. There was other corroborative testimony.</p> <p>Charles Hutchinson testified, that the plaintiff had always lived at home, and, though sometimes out of health, had worked on the farm and helped support his father and mother; that the plaintiff, therefore, had an equitable interest in the farm, for which the notes were given, though the plaintiff himself was not a party to the transaction; that there was no agreement that the notes should be held merely as security for the contract of the defendant to support his father and mother; that, having taken the notes for the benefit of his father, when the plaintiff complained to him for conveying the property to the defendant, he transferred the notes to the plaintiff.</p> <p>There was other testimony for the plaintiff, but all the facts, necessary to an understanding of the case, appear in the opinion of the Court.</p> <p>contended that the notes were given as collateral security for the agreement of the defendant to support his father and mother, to be paid only upon his failure to support them; that the notes were fraudulently put in circulation by Charles Hutchinson; and that the plaintiff, though he received them before maturity, having paid nothing for them, was not entitled to recover.</p> <p>1. That the testimony, that there was an agreement that the notes should not be paid, according to their tenor, being contradictory to the written contract, was not admissible.</p> <p>2. That the notes having been transferred to the plaintiff, before maturity, even if there was an agreement between the original parties, that they should be held as collateral security only, the plaintiff, having no notice of any such agreement, was entitled to recover. Sweetser v. French, 2 Cush. 313; Fisher v. Leland, 4 Cush. 458.</p>

The question submitted in this case was whether, upon the allegations in plaintiff’s writ, this action can be maintained. The substance of the plaintiff’s declaration is stated in the opinion of the Court.

Exceptions from the ruling of Hathaway, J. Trover for certain articles of household furniture.

On agreed statement op pacts. This is an action of trespass on the case, to recover the value of two horses belonging to plaintiff. Plea, not guilty.

Exceptions by plaintiff to the ruling of Rice, J., discharging the supposed trustee, upon his disclosure.

<p>This was an appeal from the decision of the Judge of Probate, probating the will of Church Nash, deceased.</p> <p>It appeared in evidence, that D. G. Wagner, one of the three subscribing witnesses, was the son of the testator’s wife, by a former husband; that his mother married the testator when the said Wagner was about eleven years of age; that he had been brought up in the testator’s family; married and living afterwards in another part of testator’s house, with testator, and occupied some portion of testator's farm, for planting, kept a cow, horse and some young stock in his barn, and pastured them in his pasture, for all which he compensated said Nash; and himself procuring hay sufficient for his stock during winter. It did not appear that there had been any particular settlement of these matters, but an equivalent had been rendered therefor.</p> <p>It appeared, also, by the testimony of Wagner, that a deed was given to him, by the testator, of ten acres of land, which was made out, executed and delivered at the time of the making and executing the will, the consideration being, as testified by said Wagner, a certain amount of money which he had let the testator have a number of years before, at different times, some of which was of more than six years standing, and also a note for a further sum, which was never given up to the testator or cancelled.</p> <p>In behalf of the appellants, it was contended that said Wagner was not a credible and disinterested witness to the will, within the meaning of the statute relating to wills; but the Court ruled otherwise, and his testimony was admitted.</p> <p>The appellants offered as a witness Jacob Nash, and other heirs of the testator, who were appellants and parties in this case, but, being objected to, for that cause, as incompetent witnesses, the Judge decided and ruled that they were inadmissible and rejected their testimony.</p> <p>It was proposed to prove, by said Jacob and the other heirs referred to, that the testator was not of sound disposing mind and memory, at the time of executing the will, and that the testator was induced to make such a will, by the fraudulent practices and influences of said Wagner and others.</p> <p>Wagner, one of the three witnesses, was not a disinterested or credible witness, within the meaning of the statute. His testimony shows that he took a deed of testator at the same time, the consideration of which was exceedingly questionable— an existing note not given up, and outlawed moneys of which no account had been made. It is quite apparent, from all that could be elicited from him, that it was a part of the same transaction; the disposal of testator’s estate by will and by deed, altogether and equally depending for validity on the same sound and disposing mind and memory. I say, a part of the same transaction, quasi a part of the will, conveyed by a deed, when it might and should have been in the will. And for what purpose ? But to make him a witness to the will, and, as such, to avail of his opinion of sanity, &c., so often arising in such case, and actually the question in this case, in connection with that of “fraudulent practices and influences by said "Wagner.” Credibility or competency, in such a case, where opinions and judgment may be expressed by subscribing witnesses, should appear clearly and satisfactorily. It appears by the will that this Wagner’s mother was the devisee of all the estate not conveyed by the deed, to the disinheritance of the children by the first wife. Was Wagner credible and competent on a question of sanity, in a case where his interest, is so mixed up with the questions arising under the will ?</p> <p>2. Jacob Nash and other appellants and parties should have been admitted under the statute allowing parties to be witnesses. This case does not fall within the' exception in the 83d § of the R. S., c. 82.</p> <p>They were not heirs of a deceased “party.” The testator was never a “party,” and could never have been a “party.” The action did not and could not arise in his lifetime. It might as well be objected in an action by one heir against another heir, on some controversy respecting their patrimony, that they were heirs of a deceased party. See statute, § 83.</p> <p>Reed never was, and is not yet, executor, in the sense in which the statute would exclude him. He is styled in this proceeding, executor, not as being in fact and in law, executor, but as being the one nominated as executor by the will. The instrument is called a will; but it is, in fact, not a legal will until probated. Reed may decline the trust, never give bond, and not enter upon the duties of executor. He presented the will for probate, which is made his duty by statute, not as executor, but as being nominated to that office, which he may decline or accept after the will shall be probated. He would not be liable to any suit as executor — could maintain none. Were one sued as executor in his own wrong, would such come under the excepting section ? I think not, clearly; pot being within the reason of the statute, and not actually executor.</p> <p>3. These proceedings, in relation to establishing and approving wills by the Probate Courts, do not come within the reason of the exception, and so are not affected by it.</p> <p>The object of the exception was to take those cases out of the operation of the statute, in which the parties would not stand on an equal footing, as to their knowledge of the transactions embraced in the suit, arising from the death of one in whose name the action might have been brought or had been brought in his lifetime, a party to the transaction, and who might have been a witness to it in his lifetime. It applies to the whole range of cases in assumpsit, debt, trespass, &c., where either party is executor, — distinguishable from these proceedings on the probate of wills. In these cases, the parties on both sides are always presumed to stand on an equality as to their means of knowing the facts to be enquired into. The (nominal) executor might be presumed even to possess a better knowledge than most others, being generally selected for that trust from the friends of the testator who are best acquainted with the matters to be enquired of. The testator could never be a witness in these cases at all, for no question would arise on which any action or process could be predicated in his lifetime.</p> <p>The reason for the exception entirely fails here, in this entire class of cases. And there being no heirs of a deceased party, nor one who could at any time have, by possibility, become a party, and the plaintiff not being executor in law, it is not a case contemplated by the statute.</p> <p>1. Wagner was not devisee nor legatee under the will, nor had he any interest in the estate, having settled with the testator before his death. Nothing in the case shows that he was not a disinterested or a “ credible” witness to the will.</p> <p>But R. S., c. 92, § 2, (1840,) only required that witnesses to a will should be “ credible,” not disinterested, also, as R. S., 1857, c. 74, § 1. The old statute provided for the proof of wills by legatees, even, they forfeiting their legacies by offering themselves as witnesses. “ Credible” witness, means competent at the time of attestation, under the statute. Hawes v. Humphrey, 9 Pick. 350; Haven v. Hilliard, 23 Pick. 10.</p> <p>2. The witnesses who were rejected were “ made parties as heirs of a deceased party.” And the other party to the suit was an “ executor.” So that the witnesses were, for both of these reasons, within the exception of the statute admitting parties to testify. R. S., (1857,) c. 82, § 83.</p> <p>It may be said, that the appeal vacated the decree of the Probate Court, and, therefore, Isaac Reed was not executor. But he is necessarily made a party to the proceedings, as ex-ectitor, or they could not go on; and he is to be regarded as executor de facto, for the purpose of setting up the will, not for the purpose of executing its provisions, until it has been established; and he is to be so regarded, or he is no party, and he has no right to appear in the case. The person named as executor in the will, is so treated and regarded by the Court, for the purpose of representing the testator in the proceedings required by law to probate his will. In this representation, he is the testator’s executor, and, as such, is by law made a party to the contest.</p> <p>It is the will that is in contest. To it, the testator was a “party;” the appellants are made parties as his heirs, and the appellee, as his executor; both are within the specific terms of the statute. During the contestation of the will, there must be some party, legally authorized to represent it and the interests under it, entitled to the temporary custody of the estate, to prevent waste. If there is an executor appointed by the testator, he must be the party, and thus, as already remarked, becomes executor de facto.</p> <p>The reason of the exception in the statute would exclude the respondents, as well as the terms of it.</p> <p>The exception was founded upon the consideration that, “ where one of the parties to the contract or transaction in contest is dead, it would be unjust to admit the living to testify to facts which were within the knowledge of the deceased party; it would be giving the living an unfair advantage. They might falsify the facts with impunity.”</p> <p>The will, so far as the contest in Court, as to its construction, its validity, its due execution, &c., are concerned, is in the nature of a contract, to which the testator is a party; it is a contract between him and his devisees and legatees; that contract is in contest. The testator must be represented in Court by somebody; he appoints an executor; the executor knows nothing of the facts, and it would be unjust to the testator, and tend to pervert his wishes, if, in that contest, the party opposing should be admitted to testify to facts peculiarly within his knowledge, which, unexplained, might overthrow his will.</p> <p>The respondents “ are made parties, as heirs of a deceased party.” This does not necessarily mean party to that particular suit or proceeding.</p> <p>To give the statute such a construction would deprive the administration of justice of the beneficial effect of the exception, in a large class of cases.</p> <p>The true construction is, “ heirs of a deceased party, to the res adjudicandum.” It should not be extended to contracts or transactions collateral or incidental to the suit; as the execution of a deed — but, as in the case of a will, to the thing which is itself the suit, so to speak — the entire contest.</p>

On Exceptions from Nisi Prius; — also, on Motion to set aside the verdict as being against law and the evidence. This case having been sent to a new trial, [see Forsyth v. Day, 41 Maine, 382,] was again tried at May Term, 1858, Rice, J., presiding.

Exceptions from the ruling of May, J. This was an action of assumpsit. The plaintiff in his writ, which is dated Dec. 2, 1854, declares against the defendants, as owners of the schooner Sarah, alleging an agreement by the defendants to carry on freight, from Aina to Boston, a quantity of hay, belonging to the plaintiff; and a non-performance of the agreement.

Reported by Rice, J. This was an action, of trespass, for taking certain personal property belonging to the plaintiff. Held: pursuant to a warrant issued by James Bickford, Agent, on the written request of five inhabitants of said district No. 6. It was not questioned that said Bickford was duly elected agent for the year 1852, but it does not appear by the record that he was sworn.

Exceptions from the ruling at Nisi Prius of May, J., allowing costs for petitioner, in a proceeding for partition of real estate, after judgment for partition had been entered. At October term, 1852, the respondents filed their plea of sole seizin. The case was withdrawn from the jury and submitted to the full Court, upon report of the presiding Judge. Judgment for partition, as prayed for, was ordered by the Court in December, 1853.

At the return term of the writ, the alleged trustee, Moffatt, filed his disclosure. Whereupon the plaintiffs moved that he be ordered to disclose further, and answer certain interrogatories that had been propounded to him, relating to certain personal property, which Furbish had mortgaged to him, to indemnify him against liabilities he had assumed for said Furbish, which interrogatories he had refused to answer.

Exceptions from the ruling of May, J. This was an appeal from a decree of the Judge of Probate, allowing the probate of the will of… Held: that probate of a will is not necessary to create an executor j that he is not made such by the will. He derives the office from the testator. The office is regulated by the statute. The question in this case is, not whether, in the exercise of his office, he may now proceed to administer the estate, but, does he now hold the office ?

This was an appeal from a decree of the Judge of Probate in the county of Sagadahoc, approving and allowing the last will and testament of William Frost. The appellee called Ebenezer Everett and A. J. Stone, two of the subscribing witnesses to the will, and proposed to examine them as to the due execution of it.

<p>In equity, the creditors of an insolvent co-partnership have a right to the payment of their claims out of the partnership property, superior to the right of creditors of an individual member. All the members of a co-partnership have a joint interest in its property, while the interest of each, as a separate member, is his share of the surplus remaining after the payment of the partnership debts.</p> <p>And the implied trust or pledge, which each member of the partnership has, that its property shall be applied to the payment of its debts, extends, as well to the real estate, which has been purchased for partnership uses, with the funds of the partnership, as to stocks, chattels or debts; notwithstanding the real estate may have been conveyed by such a deed, as, under our statutes, would, at law, make the partners tenants in common.</p> <p>And, where the creditors of one of the members of a co-partnership had instituted suits at law against him, and attached his legal interest in real estate thus conveyed, intending to levy thereon to satisfy their judgments, when rendered, the Court, in the exercise of its chancery powers, will interpose to protect the rights of the other partners, when the estate attached will be required to pay the debts of the firm, (including the firm’s liabilities to its individual members,) and, if without it, the partnership will be insolvent.</p>

Reported by Cutting, J. This was a process of Forcible Entry and Detainer, commenced before a justice of the peace and of the quorum, who rendered judgment for the complainant.- The respondents entered in this Court their appeal from said judgment, at the August term, 1857, for the county of Sagadahoc.

This action was case; in wbicb the plaintiff claimed to recover damages of tbe defendant, for placing a work-shop upon a strip of land which adjoined the land of plaintiff, over which strip he claimed to have a right of way, which the defendant had thus obstructed.

Reported by May, J. Complaint, under the .statute, against the owners of mills and dam, for flowing complainant’s land. [No copy, either of the complaint or of the report of the case, is found among the papers in the case.]

<p>Beported by Tenney, C. J., March Term, 1858.</p> <p>This was-'an action against Samuel Farrar and Lysander Outler, as principal defendants, and William G-. Cutler of Dexter, and Ebenezer and Theron J. Dale of Boston, (the last two being partners under the firm name of Johnson, Sewall & Co.) as trustees.</p> <p>The principal defendants were defaulted at a previous term. To determine the liability of W. G-. Cutler, as trustee, he and the plaintiffs agreed that the case should be reported for the adjudication of the full Court, upon the disclosures which the trustee had made. It was admitted that notice had been issued and served on said Dales to appear and maintain their right under the mortgage to them from the principal defendants, (which said Cutler disclosed,) as provided in Bev. Stat., c. 86, sect. 32, and that said Dales did not appear.</p> <p>From the disclosure, it appears that the principal defendants, for several years prior to December 6, 1856, had been extensively engaged in the manufacture of woolen goods, at their mills in Dexter, and were largely indebted to the said firm of Johnson, Sewall & Co.; that, on said Dec. 6th, they conveyed their mills, and also mortgaged to said creditors their stock on hand and all furniture, tools for manufacturing, &c., “ all desks, chairs, chests, trunks and office furniture, now in and about the mills and manufactories.”</p> <p>The trustee was appointed soon afterwards as the agent of the said mortgagees, who continued to operate the mills. As their agent, the alleged trustee had possession of manufactured goods, at the time of the service of the writ upon him in this case.</p> <p>It further appeared from the disclosure that, at the time he was summoned as trustee, there was in his possession a winnowing machine belonging to the principal defendants. He held, also, a negotiable note belonging to them, given by one Abbott, upon which there was then due about $100.</p> <p>There was also an iron safe, in use in the office at the time the mortgage was made of the office furniture. ,</p> <p>It- also appeared that one of the principal defendants had conveyed, in mortgage, to the Mercantile Bank, ..certain real and personal estate, to secure certain notes due to the bank, which the trustee purchased and. took assignments of the mortgages to himself.</p> <p>The said trustee having been summoned to appear as agent for said Dales, protesting that he was not the agent of said Dales, except for certain specific purposes, nevertheless submitted himself to examination.</p> <p>The disclosures are very voluminous; but the substance of them- is given, so far as they relate to'the points considered, in the opinion of the Court.</p> <p>The case was argued by</p>

<p>A bill in equity, to obtain a decree to redeem mortgaged premises, is not technically one for discovery, and its verification by oath is not required.</p> <p>Where a married woman is the owner of an equity of redemption, her husband is properly joined with her in a bill in equity to redeem. (Rev. Stat. of 1857, c. 61, § 3.)</p> <p>A mortgager who has conveyed all his interest in the mortgaged premises, should not be made a party to a bill in equity to redeem.</p> <p>The heirs or devisees, as well as the personal representative, of a deceased mortgagee, should be made parties to a bill in equity to redeem mortgaged real estate.</p> <p>Where a promissory note was secured by a deed which was unconditional upon its face, but a bond of defeasance was given back, (thus constituting a mortgage,) and subsequently the parties entered into a verbal agreement that a further sum should be advanced to the mortgager and his note given up to him, and he should surrender the bond held by him, and the note was actually given up, and nearly the whole amount agreed to be paid, was paid, still, if the bond was not in fact surrendered or cancelled, the mortgager would be entitled to redeem.</p> <p>In such a case, if the mortgager or the purchaser of his right, brings his bill in equity to redeem, he will be held to account for the amount of the note given up, and for the amount paid to the mortgager under such parol agreement.</p>

The defendant was a stockholder in the Kennebec and Portland Railroad Company, and plaintiff brought his action against him to recover a debt which he had failed to collect of the corporation. The case came before the full Court on demurrer, and was argued by

Exceptions from the rulings of Cutting, J., and motion for a new trial. This was an action of assumpsit for money had and received. The plaintiffs claimed to recover back money paid to the defendants, on the ground that certain lumber purchased by them was inferior in quality, and less in quantity, than the defendants contracted to deliver.

<p>This w.as a Bill in Equity, in which the plaintiff sought to compel the defendants to convey to him one third part of township number 8, in the 4th range, and to account for certain quantities of lumber sold therefrom. The case was heard on bill, answers and proof.</p> <p>It appeared that, in 1844, the plaintiff procured from one Benjamin Shaw, a bond for the conveyance of one undivided third part of the said township, which bond the plaintiff assigned to the defendants, as collateral security for sums already due on account, and for such further advances as they might mate for him. There was no written agreement relating to such collateral holding. The defendants also held other collaterals.</p> <p>In 1845, the plaintiff was indebted to the defendants more than five thousand dollars, which debt increased from year to year, until, in 1841, it amounted to over nine thousand dollars. The defendants then paid Shaw the amount due for the one third of said township, of land, and took a deed thereof to themselves.</p> <p>The debts due to the defendants, from the plaintiff, continued to increase, annually, instead of diminishing, until October, 1850, when they amounted to $32,521. He being then unable to pay, if not actually insolvent, the parties entered into a settlement, by which, upon certain conditions, the plaintiff surrendered all his interest in the collaterals held by the defendants, and they exchanged mutual discharges from all demands. But there was no surrender of any interest in township number eight, because, as the defendants allege, they already had the title thereof. They thereupon took possession of all the property and occupied it as their own, — but, still keeping an account "of the proceeds thereof for their own satisfaction, and, as partners, to be able to adjust the operation among themselves.</p> <p>The defendants alleged that the entire proceeds of the property, exclusive of the township number eight, did not amount to so much as the plaintiff’s indebtment to them by $14,144,27, and that said township was worth far less than that amount. They admitted that they, after the settlement in 1850, gave permits, and operated on said township, as they claimed the right to do; but they alleged that said operations resulted in a loss, instead of a gain, to themselves, — so that, while they denied their liability to account to the plaintiff, there was no balance in their hands.</p>

<p>This was an action of trespass, brought by the owner and lessor of a farm, against a deputy sheriff, who attached a quantity of hay raised thereon, as the property of the lessee. The attachment was upon a writ in favor of one .of the .creditors of the lessee, and the hay was afterwards sold on execution.</p> <p>The following is a copy of the lease-:—</p> <p>“ This memorandum of agreement by and between E. S. Coe on the one part, and H. D. Watson on the other part, witnesseth, that said Watson agrees to take and manage the Lawrence farm, in Newport, upon the following conditions, viz.: — to occupy the best house with his family, lease the other house, and collect and account for half the rent yearly, cultivate and plough such portion of the fields as required from time to time, and cut the grass in good season, and do all the farming work in good and proper season, and carry on said farm in good and husband-like manner, and do all that is necessary to keep the fences in good repair, and deliver to said -Coe, or sell for his benefit, one-half of all the products of said farm yearly, and one-half of all the growth on the stock, when the same is sold, all of said hay and straw to be used on said farm; said Watson to furnish all the tools, excepting one set of cart wheels and carts and one breaking up plough, and pay one-half of the taxes yearly. Said Coe agrees, on his part, to furnish said Watson with the stock for the farm, viz.: — one yoke of oxen, two cows, one horse, two shoats, and such other stock as may be necessary for the farm, and one large plough and one set of cart wheels, — all to be charged at cost; and when said stock is sold, one-half of all gain or loss to belong to said Watson; and said Coe to pay for all manure and plaster of Paris put on the farm this season, and pay for setting over the fences around the field, and repair the house and barn. When said Watson leaves the premises, the stock is to be appraised, and hay, and one-half of all the gain or loss to belong to him. This agreement to continue from year to year, unless otherwise altered, and continue in force as long as said Watson remains on said farm; and, when he intends to leave, he is to give six months’ notice. All of said stock and tools furnished and to be furnished, to be and remain the property of said Coe; all my part of the crops and the growth of stock to be held as collateral security to pay my notes to said Coe, and advances, from time to time, until paid in full with interest.”</p> <p>Signed, “E. S. Coe. “Henry D. Watson.”</p> <p>The foregoing lease was made May 8, 1854, and Watson immediately took possession of the farm, and continued in the-occupation thereof until after the commencement of this suit. He cut the hay on the farm in 1851, and, after it was put in the barn, August 26th, a part of it was attached by the defendant, upon a writ in favor of one Sullivan Lothrop.</p> <p>The contract between the plaintiff and H. D. Watson, provides that Watson shall “ carry on the farm,” on which the hay grew, “ in good and husband-like manner, and deliver to said Coe, or sell for his benefit, one-half of all the products of said farm, yearly, and one-half of all the growth on the stock, when the same is sold.”</p> <p>Towards the close of the contract the following language is used: — “This agreement to continue from year to year until otherwise altered, and continue in force as long as said Watson remains on said farm, and, when he intends to leave, he is to give six months notice.”</p> <p>This contract is clearly a lease from year to year, in the strictest sense of the law, with a proviso for six months notice to quit; the farm to be carried on for a rent of one-half of the crops.</p> <p>For any breach of the lease by Watson, the remedy is by -suit at law. All the crops are raised by the labor of Watson, and are his property until a division and delivery to Coe. No such division or delivery has ever been had, and the hay was liable to attachment on Watson’s debts. The case falls directly and fully within numerous decisions of this Court. It is unnecessary to cite more than three. Turner v. Bachelder, 17 Maine/ 257; Symonds v. Hall, 37 Maine, 354; Garland v. Hilborn, 23 Maine, 442.</p> <p>The closing language of the lease is as follows: — “ All my part of the crops, (i. e. all Watson’s part,) and the growth of stock, to be held as collateral security to pay my notes to said Coe, and advances from time to time, until paid in full with interest.” This is undoubtedly a mortgage to the plaintiff, in terms. But when it was executed, on May 8, 1854, the property was not in existence. It was therefore invalid, as against an attaching creditor. Jones v. Richardson, 10 Met. 481; Head v. Goodwin, 37 Maine, 181; Chapin v. Cram, 40 Maine, 561.</p> <p>Besides, the mortgage was never recorded, nor was there ever any delivery of the property to the mortgagee.</p> <p>For these reasons, also, the mortgage was invalid as against an attaching creditor. Bailey v. Fillebrown, 9 G-reenl. 12.</p>

Eeported by Cutting, J., at the October Term, 1857. This was an action of debt, on a poor debtor’s bond. The facts sufficiently appear in the opinion of the Court.

Assumpsit upon account annexed, with the money counts. The plaintiffs claimed the sum of $3950, as due from the defendants, under a charter party, dated Oct. 22, 1856. The contract was not under seal.

<p>Tn a suit against a town for an injury to the plaintiff, caused by a defect in the highway in the town, the plaintiff is admissible as a witness under the statute of 1856, (B. S., c. 82, § § 78, 79,) although no inhabitant of the town has been offered as a witness for the defendants.</p>

This was a bill in equity, inserted by the plaintiff in a writ of attachment, and was brought by him as administrator of the estate of one George Craig.

Petition por certiorari, and to quash the proceedings of the County Commissioners of Aroostook, laying, out a road through townships Nos. 14 and 15 in range 6. The case was submitted to the full Court upon a copy of the record of the proceedings of the County Commissioners, in laying out and establishing the road, the Court to make such disposition of the matter as the law requires.

<p>A., Laving commenced an action against B., which was defaulted and continued for judgment, agreed, after default and before judgment, to accept an execution held by B. against C. in full payment, which agreement was not carried out by A.; — Held, that this did not constitute a consummated payment, or accordance and satisfaction; and that the execution against 0., though in the hands of A., by virtue of the agreement, was still the property of B.</p>

<p>Scire Facias against the defendant, as trustee of Samuel J. Foster.</p> <p>The facts, contained in the several disclosures of the trustee and other papers, and agreed by the parties, are very fully stated in the opinion of the Court.</p> <p>1. The principal defendant was accountable to the trustee for loss on the property attached, by reason of his negligence in keeping, and improper use of the same.</p> <p>2. That the property attached having been mortgaged to Howe before the attachment by the defendant for Sawyer, and Sawyer having been obliged to pay Stone for it, it would be grossly unjust that Foster should have the benefit of keeping the stock through Howe, and have pay for it from Sawyer, through the defendant.</p> <p>3. That the case came within the third exception of c. 119., § 63, of the statute of 1841. That the defendant was acting as a public officer; he had attached the stock, and was bound to provide for its safe keeping. That the same construction was given to the old statute, before this express provision for exonerating public officers was enacted. Chesley &¡ al. v. Brown Sj trustee; Thompson v. Brown, 11 Pick. 462, and cases there cited.</p> <p>4. That the death of the principal defendant and the insolvency of his estate, operated necessarily to dissolve the attachment. R. S., 1851, c. 81, § § 19, 80, 81, 82.</p>

On Report by Appleton, J. This was an action of Trespass against the defendant, as sheriff of the county of Aroostook, whose deputy had attached, on a writ against the plaintiff, a horse, which the plaintiff claimed was exempt from attachment.

On Facts Agreed. Trespass quare clausum, tried before the Municipal Court of Calais. The facts appear in the opinion of the Court. cited Haycroft v. Creasy, 2 East, 104; 2 G-reenl.

Exceptions from the ruling of Goodenow, J. This was an action against the owner of logs which had been driven to market by persons whose timber had become intermixed with that of the defendant, and was based upon the R. S., c. 42, § 6. The plaintiffs were not the owners of the logs they were driving and which had become intermixed with the defendant’s, but were driving them under a contract with the owner.

J. This was a writ of entry. After verdict and before judgment, the defendant, against whom the verdict was rendered, moved to set it aside and for a new trial, because,— 1. The verdict was against the weight of evidence and the instructions of the Court;— 2. The verdict for damages was excessive, and not authorized by any evidence in the case. Demandant claimed the north half part of lot No. 62.

On Exceptions from Nisi Prius, Goodenow, J., presiding. This was a libel for divorce. The libellant was offered as a witness in the case, and was objected to by the libellee, but was permitted, by the presiding Judge, to testify. There was a motion filed by the libellant to dismiss the exceptions, because the libellee had not complied with the order of the Court, at Nisi Prius, to pay the libellant the sum of twenty-five dollars, to enable her to prosecute her exceptions.

<p>Bill in Equity for the redemption Of a mortgage, in which it is alleged, that on the 18th of April, 1853, one William E. Slayton was seized in fee of a certain parcel of land, and, on the same day, conveyed the same in mortgage to one Sewall Baker; that said Baker, on the 15th June, 1855, conveyed his interest in said property to the defendants; that after-wards defendants took possession, and remained in possession and received the rents and profits of the mortgaged premises; that, on the 11th Nov., 1856, the plaintiffs purchased the right in equity of redeeming the premises; that, on Jan. 1, 1857, plaintiffs requested the defendants to state the amount they claimed to be due on the mortgage, which they neglected to do; but, some days after, that they set up an unjust claim to the sum of $2844,76, to the first day of January, 1857, allowing nothing for the rent of the property, and claiming large sums said to have been expended in repairs and for insurance, without furnishing any vouchers for the same; and many items of which the said defendants had no legal right to claim or receive; and, therefore, not being able to ascertain the exact sum due on said mortgage, could not tender the same; and pray that, upon bringing and lodging in Court such sum of money as your honors shall find to be equitably due to the defendants, the plaintiffs may be restored to the title and possession of said property.</p> <p>The respondents’ answer admitted that, on or about April 18th, 1853, William E. Slayton was possessed of, and did execute a mortgage deed of the premises described in plaintiffs’ complaint, conditioned for the payment of the two notes as alleged in said bill of complainant; no part of which has ever been paid to Baker or to defendants.</p> <p>That Sewall Baker recovered judgment for condition broken against said Slayton, in the S. J. Court, January term, 1855, in this county, and the conditional judgment was rendered for the amount of the first note in said mortgage mentioned, and interest; to wit, for $612,57, and costs of suit taxed at $14,04. Writ ,25, officer’s fees $3,25 ; delivered to an officer May 25, 1855; premises, at the time, unoccupied, said Slayton having a short time before left; much out of repair; not in a tenantable condition.</p> <p>Defendants having become the purchasers jointly, under the firm of Deming & Son, from said Baker, of said mortgage and judgment, and all his rights, as by his deed, caused necessary repairs to be made on the house, cellar and outbuildings on said premises. On the 6th of September, 1855, William Deming, jr. moved into the house and mortgaged premises, and continued to occupy them ever since.</p> <p>That in the schedule annexed to the answer, they have set forth, according to their best knowledge, information and belief, a true and particular statement of the sums due on said mortgage; and their charges for repairs and expenses of said mortgaged premises, and also of the fair rents and profits of the same, up to January 1, 1858.</p> <p>And the respondents utterly deny that either the said Slay-ton, or said plaintiffs, have any right in equity to redeem the said mortgaged premises; they deny that they have ever set up any unjust claim, as alleged in plaintiffs’ bill of complaint.</p> <p>The general replication was filed.</p> <p>George W. Dyer was appointed Master.</p> <p>The schedule annexed to the respondents’ answer, and the master’s report upon the same, will be sufficiently understood by reference to the following abstract of the report furnished by counsel:—</p> <p>Defendants claimed in their schedule annexed to their answer, various items not allowed by the master; to wit:— Defendants claimed sums, with interest to June 25, 1856, for the mortgage, repairs, &c., $2778,70, less rent of premises at $150 a year from September 6, 1855. Master allowed, exclusive of rent, $2613,51. Master disallowed items claimed, to amount of $165,19. Master found due to defendants on the mortgage, after allowing rent of $150 a year, from June 25, 1855, to the date of report, May 11, 1858, $2459,27.</p> <p>Thomas L. Hamilton testified that he was one of the plaintiffs; that he called upon William Deming, jr., one of the defendants, in the fall of the year 1857, for the amount due on the mortgage of William E. Slayton to Sewall Baker, and transferred from Baker to defendants.</p> <p>It was before the bill in equity was made. Deming said he would make out his account as soon as he could get in his bills of repairs.</p> <p>Afterwards he called upon him, and he handed him the annexed bill, marked A, except the credits for rent, which he added afterwards; that he brought the account to Joseph Granger, attorney for defendants, before the credit was added. He directed him to get the rent credited, and he did. Granger came to Deming’s store when witness was there. They talked over the bill; witness thought the bill in some particulars was incorrect.</p> <p>Deming said he could produce vouchers for the charges, but did not. Thinks the charge for insurance was one of the items objected to, but is not certain. Claimed $200 as rent of the property. Also objected that some of the repairs were not necessary for the protection of the property. Deming declined paying more t an $150 for rent, and claimed the amount of tbe bill marked A, as tbe amount due to tbe respondents on the mortgage.</p> <p>Cross-examined. — Did not ask Deming to produce his vouchers. Witness afterwards went down with Deming to examine the premises, with a view to ascertain the amount he had expended.</p> <p>Joseph Granger testified that, in the spring of 1857, or latter part of the winter, Thomas L. Hamilton, one of the complainants, came to me with the account now annexed to his deposition, marked A, precisely as it now is, excepting the credit of rent and the heading “Calais, Jan’y 1, 1857,” and consulted me as to the rights of mortgager and mortgagee'; what repairs and expenses mortgagee in possession had a legal right to charge, and the mode of ascertaining the rents and profits. I saw there was no credit of rent in the account, and told Hamilton he had better get respondents to credit rents and profits.</p> <p>He took the account for that purpose. I happened into the respondents’ store shortly after, and William Deming, jr., Hamilton and myself had some conversation respecting the value of the rents, and for what repairs mortgagee was entitled to charge. Witness thinks Deming, at that time, added the words “Calais, Jan’y 1, 1857,” as the date up to which interest was reckoned on the notes; and also added the credit of $237,50, for the rent up, I think, to April, though not positive as to the time; know it was earlier than June, 1857.</p> <p>The said Deming at that time claimed, as the amount due on the mortgage, the amount of the aforesaid bill, marked A, with interest from January 1, 1857, less $237,50, for rent.</p> <p>It was after this I concluded to file a Dill in Equity to redeem, as the best method of determining the rights of the parties. Accordingly, in August, I commenced this action at plaintiffs’ request.</p> <p>1. That, as the respondents did not render a correct account of the amount due on the mortgage, when the account was demanded, and neglected to render an account of rents and profits, and set up an unfounded claim to the property, and unjust and illegal charges for expenditures, to the amount of $300 and over, the respondents are liable to the complainants for costs.</p> <p>2. The failure to furnish the exact amount due on the mortgage, within a reasonable time, is regarded as an unreasonable neglect and refusal. Pease v. Benson, 28 Maine, 336.</p> <p>3. Setting up, in such demand, by the party entitled to redeem, a claim to a larger amount than is actually due, subjects the respondents to costs. Sprague v. Graham, 38 Maine, 328.</p> <p>1. That neither law nor equity required the exact sum due should be furnished, on demand of the holder of the equity. Whitwood v. Kellog, 6 Pick. 420.</p> <p>2. If both parties are in fault, costs are allowed neither. Clark v. Read, 11 Pick. 446, 449; 1 U. S. Equity Digest, 202, No. 124. In not offering to pay the sum justly due in their bills, as provided in R. S., c. 125, § 16, and in new R. S., c. 99, § 13, the complainants are in fault. They also claimed $200 a year rent, while the master allowed only $150. The complainants excepted to the master’s report, and after-wards withdrew the exceptions, thus protracting the proceedings. Richards v. Barlow, 1 Paige’s C. R., 323; Norton v. Wood, 5 Paige’s C. R., 260; Methodist Church v. Jaques, 3 Johns. C. R., 77; 1 U. S. Eq. Dig., 204, No. 187.</p> <p>3. Complainants are not entitled to costs as prevailing parties. The better rule is, that costs rest in the discretion of the Court. See American Ch. Dig., before cited, and cases there referred to.</p> <p>4. A better rule is, where the parties stand equally fair in every respect, the actor, who brings tbe other into Court, ought to pay tbe expense. American Ob. Dig. 122, No. 1.</p>

On Agreed Statement. This was an action on two notes of band given by tbe defendant on ber release from imprisonment in the county jail, and included the amount of fines and costs against her, and for her board. The notes were made payable to the treasurer of the county or order, and by him were indorsed over to the plaintiff, without recourse.

<p>A., by letter, applied to B,, who was agent of an Insurance Company, for insurance. Thereupon B. filled out an application, which contained a statement that there was “no mortgage,” on the property to be insured, and signed the name of A. to it, without his knowledge. A policy was issued, referring to the application as part of the policy, which was accepted by A. — Held, that, by accepting the policy, the plaintiff covenanted and engaged that the application contained a just, full and true statement in regard to the condition of the insured property, and that he thereby ratified the application. — Held, that the company were not bound by the letter from the assured to their agent. —</p> <p>Held, that the representation that there was no mortgage on the property, was material, though the company had no lien on the real estate mortgaged. Parties to all contracts in writing, are supposed to have the intentions which are clearly manifested by the terms thereof. *</p>

This was an action for damages occasioned to the schooner Hiram by the steamer Admiral. The presiding Judge instructed the jury as follows: — That the burden of proof was on the plaintiff to prove the defendants in fault. If the collision was occasioned without fault on either side, a mere accident, the action could not be maintained. If by fault on both sides, it could be maintained, and the damages should be divided.

Reported by Hathaway, J., from October term, 1858. This was an action of Debt on a replevin bond. The plaintiff, as an officer, attached certain personal property on a writ against a person other than either of the defendants in this suit. The action was duly entered, and judgment and execution followed. The defendants replevied the attached property, entered their suit in Court, and became non-suit. Thereupon the Court ordered a return of the property.

Exceptions by the defendants to the ruling of Cutting, J., upon their motion to set aside the verdict rendered for the plaintiffs at this term, “because Artemas Latham, &c., &c., was one of the panel of the second jury which tried said case and rendered said verdict, and that said Latham is, and was at said time of commencement of said term and said trial arid of rendering said verdict, and has been for a long time an inhabitant and resident of the town of Greenfield, which…

<p>Parol evidence of an erroneous date, in a mortgage of personal property, not under seal, is admissible.</p> <p>"Where a mortgage and the note secured thereby are made and delivered at the same time, the mortgage is valid, though by mistake dated a year prior to the date of the note.</p> <p>By the record of such a mortgage, third parties, proposing to purchase the property therein described, are at least constructively notified of the lien.</p> <p>When a mortgagee has the right of immediate possession of personal property, no demand is necessary in order to sustain an action of replevin by the mortgagee against the subsequent vendee of the mortgager.</p>

On Exceptions from the ruling of Rice, J. In this case an application was made to the Court by the defendant to have the judgment herein, and the judgment to be rendered in the action, Charles S. Brown v. New Haven Copper Company, pending in this Court, set off, the one against the other. The application was resisted by Wm.

Reported by Rice, J. Trespass guare clausum. This action was submitted, on a report of the evidence at Nisi Pruts, to the full Court, with jury powers.

On Agreed Statement. This was an action of Assumpsit for one-half the alleged value of a certain horse. Prior to January, 1853, one Samuel Lord got up a lottery, consisting of a variety of personal chattels, among which was the horse in question. The drawing of the lottery took place on Jan. 15, 1853. The defendant had two tickets in the lottery, one of which belonged to his daughter, and, in the first drawing, one of the tickets held by defendant drew the horse.

<p>Where one of two joint debtors has been discharged, by a release not under seal, from his share of the debt, though for a sufficient consideration, such discharge is no defence to either in an action against both.</p> <p>If the debtor, thus discharged, should he afterwards molested on account of the debt, his remedy would be by an action founded upon a breach of the contract of discharge.</p> <p>A technical release to one of several joint debtors, being under seal, may be pleaded in bar to a suit against both.</p>

<p>Exceptions from the ruling of Davis, J.</p>

<p>On Pacts Agrerd..</p> <p>Process for Partition of a parcel of timber land.</p> <p>Wingate claims nothing. John M. Lord, the other respondent, claims to be sole seized.</p> <p>The claim of title, made by the respective parties, is fully' set forth in the statement of the ease by the parties. Only one of the several questions which were argued by the counsel is considered in the opinion of the Court. The facts admitted, bearing upon that point are, that one Crosby owned the right in equity to redeem one undivided half of the premises sought to be parted; that right was seized and sold on execution, on the twelfth day of July, 1856, to W. W. Rogers and others. The right which said purchasers acquired by this sale was sold on execution against them on the ninth day of July, 1857, to the petitioner.</p> <p>It was contended for the respondent that, at the time of the sale, on the 9th day of July, 1857, Crosby’s right to redeem from Rogers and others had not beeome foreclosed; that, until the expiration of a year, Rogers and others had no interest under the sale to them that could be legally seized or attached, and, therefore, nothing passed to the petitioner by the attempted sale.</p> <p>The case was argued at May term, 1858, by</p>

<p>The statute providing for the sale on execution of an equity of redeeming mortgaged real estate, regards such equity as an entirety, and does not authorize the sale of numerous equities for one sum. The equities are several, and the sales must be several.</p> <p>Parties taking conveyances from those in whom the records disclose the title to be, in good faith, without notice of fraud affecting prior transactions, and for a valuable consideration, are to be protécted.</p> <p>In proceedings to redeem mortgages, the mortgagee must include, in his account rendered, only such prior incumbrances as he has actually paid, and no others.</p> <p>A mortgager, filing his bill to redeem, may bring before the Court all parties who might call for redemption, — second mortgagees, subsequent incumbrancers, and all interested.</p> <p>But the owner of the equity may bring his bill against the last mortgagee, if he choose to incur the risk of a foreclosure by a prior mortgagee, during its pendency. The defendants have no right to require the complainant to redeem prior mortgages. If they have paid prior incumbrances, they hold them as a charge upon the estate.</p> <p>It would seem, that a party attempting to foreclose a mortgage should give notice to all parties whose interests may thereby he affected.</p> <p>In a hill to redeem real estate mortgaged, the mortgagee is properly called upon to account for what he has received or ought to have received of the proceeds of personal property mortgaged to him to secure the same demands, deducting all reasonable and necessary expenses incurred in and about it.</p>

Bill in Equity, to redeem lands of which the defendants are alleged to be mortgagees. The facts appear very fully in the opinion, of the Court. The case was elaborately and ably argued, by

<p>A., as creditor of B., requested the latter to secure Mm, to wMeh he replied that “he owned a vessel, and was willing to transfer the same as security’’ to A. The vessel was of much greater value than the demand. B. shortly thereafter transferred the vessel by an absolute bill of sale, which was recorded at the Custom House, all of wHch was done without the knowledge of A. till sometime afterwards : —</p> <p>Held, that the transaction, to have been consistent with the previous conversation, should have been in the form of a mortgage, and that there was not such a perfected sale of the vessel as was valid against subsequent attacMng creditors. „</p> <p>The plaintiff, as an officer, having three writs against A. attached a vessel as the property of A., for which the defendant became reeeipter. Judgment and execution followed in one of the actions, and, on the refusal of the defendant to re-deliver the vessel, an action was instituted on Ms receipt. Pending the suit, judgments and executions were had in the other suits against A.: —</p> <p>It was held, that no new demand on the defendant was required; and that the plaintiff was entitled to the amount of the three judgments against A. as damages, that amount being less than the value of the vessel.</p>

On Agreed Statement of Facts. This is an action of Assumpsit brought to recover the amount due on a certain instrument of the tenor following: No 2, Liberty, Dec. 2d, 1856. “ To Albert D. Matthews, Treasurer of the town of Liberty : — Pay to Albert 0. Collins, or order, forty dollars, thirty-nine cents, out of the treasury of the town, on account of building a school-house in district No. 7, in Liberty.

<p>Reported by Davis, J.</p>

On an Agreed Statement op Pacts. Sept. 20,1854, Geo. A. Pierce conveyed certain land in Waldo county to Theodosia Dunning by mortgage, which by mistake was recorded in Penobscot county.

Assumpsit to recover the wages of plaintiff as a seaman on board a schooner owned by the defendants. The plaintiff shipped as mate, in Boston, with Oscar Rust, acting master of the schooner, and served from Sept. 8th to Dec. 12th, 1856, at thirty dollars a month. The defendants, part owners of the schooner, severally testified that they never employed the plaintiff.

<p>This case was presented on an Agreed Statement op Facts.</p> <p>Writ op Entry to recover certain land in Freedom. October 23,1850, Enos Briggs, jr., being then owner of the land, it was attached on a writ in favor of William Hussey against said Briggs, and, after judgment obtained, the land was levied upon and set off to Hussey, who afterwards conveyed it to the plaintiff, April 4, 1854.</p> <p>Enos Briggs, jr., after the date of Hussey’s attachment, and before the present action was commenced, conveyed the same land to the defendant, by deed duly acknowledged and recorded.</p> <p>The officer’s return of the levy sets forth, that on March 20, 1851, he caused three discreet and disinterested persons of said county to be sworn, one selected by the creditor’s attorney, “ and, after giving Enos Briggs, jr., the debtor, due notice to be present at the time and place to select one appraiser, which he utterly refused to do,” the other two were appointed by the officer, and, after being sworn, they viewed the land shown to them by the creditor’s attorney, &c.; and that he had extended the execution on the described land and appurtenances, appraised by the appraisers at $116,60, “which is the amount of this execution and fees and charges.”</p> <p>The return does not state the items or amount of fees and charges. The plaintiff offered an affidavit of the officer, Charles Elliot, setting forth the items omitted, in amendment of his return, and the Court was to determine whether the amendment was admissible.</p> <p>cited Fitch v. Tyler, 34 Maine, 463, Smith v. Keen, 26 Maine, 411, as to the sufficiency of the notice to the debtor; and argued that the omission of the specific charges of levy was unimportant, and the return of the officer sufficient, as the Court has before it, in the execution, ample data to make the amount certain. Rawson v. Clark, 38 Maine, 223. It is Competent for the officer to amend his return, although out of office, and the interest of third parties had intervened. Fitch v. Tyler, before cited. A slight error in the officer’s charges does not render the levy void. Statute of 1856, c. 218. Nor the charges of levy being stated in a gross sum. Tibbetts v. Merrill, 12 Maine, 122. Nor the taxation of illegal costs. Sturdivant v. Frothingham, 10 Maine, 100. The return states all that is required by R. S., c. 94, § 24.</p> <p>argued that the title of the plaintiff was imperfect by his own showing.</p>

On Exceptions, from the ruling of May, J. This was an action upon a note given by defendant to said George W. in his lifetime. The plaintiff read the note in evidence. The defendant proved that he, in the fall of 1855, sent to the said George W., two checks from Calais Bank on Globe Bank, Boston, one for two hundred dollars, and the other for one hundred dollars, and that the same were received by said George W. at Monroe.

The petitioner claimed to be tenant in common, with Robert Gregory, of a lot of land in Camden, each owning one undivided half of the described lot, being the easterly half of lot No. 3, shore range, by Fales’ survey.

On Agreed Statement. This was a Writ op Entry upon the demandant’s own seizin. In the fall of 1852, the plaintiffs had a claim against C. H. Merrill of Frankfort, and commenced a suit against him and caused an attachment to be made and returned of real estate, in the usual form, on the 16th day of December, 1852.

<p>By the legal laying out of a highway, and after all the requirements of the statute have been complied with, the public acquire an easement, as against the owners of the land, to every portion of the road.</p> <p>The-law does not require the town, in preparing a highway for travel, ordinarily, to make the traveled path the whole width of the road.</p> <p>Towns are not liable for obstructions on the portions of a highway not constituting the traveled path, and not so connected with it as to affect the safety of the traveled portion.</p> <p>A traveler on a highway may go out of the beaten track, at his own risk as between himself and the town; but so doing he is entitled to protection against the unlawful acts of other persons or corporations.</p> <p>No private person or corporation has the right to place or cause any obstruction, which interferes with the right of others, on any part of the highway, within its exterior limits. For such obstruction, the extent of a town’s liability is not the measure of the liability of a private person.</p> <p>Upon a motion for a new trial, it was contended that a witness at a previous trial of the same issue had given evidence contradictory to his later testimony, but which was not made to appear in the report upon which the motion was based: — Held, that the Court can only act upon the evidence as reported: — Held that, if the moving party intended to avail themselves of such alleged contradiction, they should have proved it at the last trial.</p>

Exceptions from the ruling of Davis, J. The Decree of the Judge of Probate of the county of Waldo, from which an appeal was taken by said Knowlton, was one directing the administrator of the estate of William Johnson, deceased, to divide among the heirs of said deceased a surplus remaining in his hands upon the settlement of his final account of administration of said deceased’s estate. One of the heirs of said deceased was one Joshua L. Johnson. .

Bill in Equity. The plaintiff alleged that Thomas Snell, Oct. 8, 1851, was seized in fee of certain premises in Unity, and mortgaged them to D. L. Milliken for $2500, and, on Eeb. 19, 1853, conveyed his interest in the premises to the respondent; that, on September 20, 1853, Milliken entered on the premises to foreclose the mortgage, and, on August 21, 1855, assigned his interest therein to the respondent, for a consideration expressed of $425,34; that, on March 29, 1852,…

On Facts Agreed. This was an action of Debt, upon the official bond of Jacob Trafton, deceased, as sheriff of the county of Waldo. The facts, in the statement of the case by the parties, sufficiently appear from the opinion of the Court.

<p>On Exceptions from the ruling of Goodenow, J.</p>

<p>The conditions in policies of insurance, requiring an account of the loss incurred under the policy, are to be construed liberally in -favor of the assured.</p> <p>If notice of a loss is given, as required by a policy, and it is defective, the company should object to it in season to allow the assured to remedy the defect; otherwise they will be considered as waiving exceptions for that cause.</p> <p>The Act of incorporation, and by-laws of an Insurance Company in the State of New Hampshire provided that, upon notice of loss, “ the directors shall proceed as soon as may be to ascertain and determine the amount thereof, and shall pay the same within three months after such notice ; but if the assured shall not acquiesce in their determination, his claim may be submitted to referees, or he may, within three months after such determination, but not after that time, bring an action at law against said company for such loss; which action shall be brought at a proper Court in the county of Merrimack,” State of New Hampshire. A., having insured in said company, notified them of a loss, but the directors neglected to “ ascertain and determine the amount thereof:” —</p> <p>Held that, the directors having neglected or refused to do their duty, A. might maintain an action against the company for the loss, after the time limited in the by-laws: —</p> <p>Held that, after a contract has been broken, the remedy is regulated by law, and must be governed by the law of the forum where redress is sought, and that A. was not bound by the provision that any suit should be brought in the county where the company is established.</p>

Exceptions from the ruling of Hathaway, J. This was an action of Assumpsit, on an account against the defendants as partners, and was entered at the term of the Court for the county of Piscataquis held in Sept., 1856.

This was an Action op the Case for diverting water from the plaintiff’s mills and pond. The plaintiff owned and occupied a grist-mill, saw-mills and other machinery, on the east side of Kenduskeag stream, in Kenduskeag village. The defendant owned .and occupied a mill on the west side of the same stream, in which he had a carding and other machines, and also saw-mills. Both drew water from the same dam. Both derive their title from the same original grantor.

<p>Writ of Entry to recover a tract of land in township No. 6, in range 4, north of the Lottery lands, described by metes and bounds, with a count for mesne profits.</p> <p>The facts were reported by Appleton, J. Under a resolve of the Legislature of Massachusetts, passed Eeb. 26, 1808, the agents named therein conveyed to C-eorge Ulmer and others a square tract of land in the south-west corner of township 6, containing 5760 acres, which said grantees and those claiming under them have since held.</p> <p>In 1831, the State conveyed the remainder of the township, containing 9992 acres, to Waterston & Pray; and from them, through various conveyances, the demandant, in 1836, acquired title to one-eighth in common of said remainder. Partition has been made, and, since 1849, the demandant has held his share in severalty, and this is the land described in his writ.</p> <p>The township was assessed for State taxes in 1854 and 1855, and the taxes partially paid by sundry persons; and, on Sept. 24,1856, a portion of the tract, including the demanded premises, was sold, after being duly advertised, to pay the balance of the taxes for those years, and conveyed to G-. W. Larrabee, who conveyed to the tenant, Nov. 10, 1857.</p> <p>The case turned upon the validity of the tax, the description in the tax Act being as follows: — “S. W. 1-4 No. 6, E. 4, N. Bingham purchase.” “3-4 No. 6, E. 4, N. Bingham purchase.”</p> <p>cited Smith v. Bodjish, 27 Maine, 394; 40 Maine, 160; 25 Maine, 359. Tax officers are to be held to a strict compliance with the law. The tax sale is void for uncertainty in the description in the assessment. “3-4 of No. 6, E. 4,” may or may not include the premises demanded. If designed to refer to the land sold to Waterston & Pray, it is erroneous in including too large a proportion of the township. They purchased less than two-thirds; to tax it as three-fourths is a bad assessment. Barker v. Blake, 36 Maine, 433.</p> <p>argued that the demand-ant had forfeited his title by non-payment of the tax of 1854. Stat. 1849, c. 133, § § 4 — 6; Hodgdon v. Wight, 36 Maine, 326. It is too late to object to the inaccuracy of the description, after the demandant and all the other owners have assented to its correctness, by paying taxes assessed on the same land with the same description, from 1841 to 1854.</p>

On Facts agreed upon. Trover for the value of a horse. The plaintiff kept a livery s^a^e a^ Erankfort Marsh, and owned a certain horse, which, on Sunday, May 2, 1858, he let to the defendant to go to Frankfort Village, distant three miles. The defendant drove the horse to Hampden, six miles further, and, by over driving and ill-usage, so injured him, that on the return from Hampden he fell exhausted in the road and died. The hiring was not for a work of necessity or charity.

The facts in this case fully appear in the case of Bent v. WeeJcs, 44 Maine, 45. The title of the demandant having been sustained by the Court in that case, the tenants applied for compensation for the improvements they made during their occupancy. The case was submitted without argument.

On Report of the facts by Hathaway, J. Trespass for seizing liquors of the plaintiff, stored in the cellar of E. Adams’s store in Bangor, July 10, 1853. The defendant Earnham justified as city marshal, acting under a warrant duly issued by the police court of Bangor, and the other defendants, as his servants or aids. The complaint, warrant and return were in the case.

On Report by Cutting, J. Assumpsit for the amount of a bill of intoxicating liquors purchased by the defendant of the plaintiffs in Boston in 1856. The plaintiffs had a license from the city of Boston for the manufacture and sale of spirituous liquors. Defendant testified that the plaintiffs, at the time he purchased the liquors, knew that he was selling liquors at retail in Bangor. He had purchased liquors of them for two years. He had no license to sell.

Exceptions from the ruling of Kent, J. Assumpsit on an account. The case was referred to the Court, reserving the right to except. The plaintiff proved his account of $62, against the defendant.

<p>Where au indictment for larceny states only the collective value of the articles alleged to have been stolen, if the defendant is convicted of stealing only a part of them, and the jury find, and, in their verdict, return the value of the part so stolen, judgment may be legally rendered upon the verdict.</p>

On Exceptions from the ruling of Appleton, J. This was an action on a receipt given by the defendants for property of McNeil, valued at $400, attached by the plaintiff, as sheriff of Penobscot county, in an action, John A. Wallis against McNeil, on which judgment was recovered by Wallis, July 31, 1851.

This was an action of Debt on the bond given by Walter Getehell, administrator on the estate of Greenville Flint, brought in the name of the Judge of Probate, for an alleged breach by refusing to pay the allowance made by the Judge to the widow, Augusta S. Flint, out of the personal estate of the deceased. By consent of parties, it was referred to the Court, Hathaway, J., presiding, with the right to except.

On Pacts agreed upon. This was an action of the Case to recover damages for the illegal doings of Thomas N. Mansfield, alleged to be pound keeper of the city for the year 1853. Mansfield was legally chosen pound keeper, and took the proper oath, June 6,1853. His bond was dated June 7,1853, but was not approved by the aldermen until August 9.

On Exceptions from the ruling of Appleton, J. This is the same case reported in 42 Maine Eeports, 53. After the opinion there reported was delivered, a special judgment was rendered in July, 1858, upon the docket of April term, 1858. The action was entered October term, 1855, on the first day of which term the defendant filed an offer to be defaulted for a sum stated.

On Report by Kent, J., April term, 1859. Held: and by what right the plaintiff claimed. This it fails to do. The evidence does not show the relation of landlord and tenant, but that Dunning took a deed for collateral security for his loan, and Stetson held an equitable interest in the premises.

On an agreed statement of Facts. n -Eliza A. Holway had her legal settlement in Fairfield from Jan. 1, 1856, to the commencement of this action. In January, 1856, she was committed to the Insane Hospital by the city authorities of Bangor.