Volume 47 — Maine Reports

On Report by Appleton, J. This was an action of trespass against the defendant for taking certain merchandize as an officer, on a writ in favor of James Pratt, against Warren R. Boynton, Nov. 10, 1857. On the 22d day of October, 1857, Boynton mortgaged to the plaintiff all the goods in his store in Bangor, consisting of groceries, meats, fruits and vegetables, to secure two notes of $500 each, payable in six and twelve months. The mortgage was duly recorded, October 23, 1857.

Replevin. On report by Hathaway, J. Rufus B. Philbrick, Nov. 17, 1855, received a permit from the Land Agent to enter on township B, range 10, with one four ox team, and to cut and remove timber therefrom until May following. The prices of spruce timber were minuted on the permit, but not set forth in it. January 12,1856, Phil-brick assigned the permit to S. E. Crocker, together with the lumber cut and to be cut under it.

Blake, having obtained judgment in February, 1857, against Brackett, for $174,14 and costs, execution was issued Feb. 9, the debtor arrested, and on the 21st he gave a poor debtor’s bond, with the other defendants in this action, as sureties.

On Report of the evidence by Appleton, J. This was an Action op the Case for obstructing the plaintiffs in the construction of their track at Oldtown. Writ dated Sept. 13, 1858.

<p>An agent having received money of his principal, and p'aid it in the course of business in his agency to a creditor of the principal, and both agent and creditor having settled their accounts with him, the creditor not allowing the payment, and the agent refunding it: — Held, that the principal, on proving the facts, may, nevertheless, recover the money of the creditor in a suit in his own name.</p>

Bill in Equity, for the redemption of mortgaged premises. In June, 1856, the plaintiff conveyed to the defendant in mortgage the premises described, to secure two notes of $250, each, payable in one and two years. The first note was paid at or about maturity, and surrendered. Certain payments were made from time to time on the second note; and the bill alleges that by these payments it was fully paid, and prays for a discharge.

This was a writ oe entry, dated May 11,1857, demanding sundry described lots on an island in Oldtown.

<p>Where a Judge at Nisi Prius certified the evidence in a case, with his rulings, • as matter of law, upon the facts which he found proved, and no exceptions were taken to the rulings, the case was considered hy the full Court as one presented on report.</p> <p>The promisee of a note given by an inhabitant of this State for spirituous liquors sold and delivered in another State, where the sale was not illegal, who had knowledge of the purchaser’s intent to sell the same here in violation of law, and did acts, beyond the mere sale, which aided the purchaser in his unlawful design, cannot legally enforce the payment of such note. The original contract being in violation of the statute, was void; and the subsequent repeal of the statute will not render the contract valid.</p>

On Exceptions to the ruling of Cutting, J. Assumpsit on an account annexed, for reams of printing paper. The plaintiffs offered testimony tending to prove the liability of the defendants.

Reported by Appleton, J. Appeal from the decision of the Judge of Probate for the county of Penobscot. Appellant produces official copies from records of Probate Court showing the following facts: — - That, on July 31, 1832, said Thurston was appointed administrator on the estate of Henry Rider, deceased, and gave, bond. That, on June 25th, 1833, said Rider’s estate, on representation of said administrator, was decreed insolvent and commissioners were appointed.

Assumpsit, for money had and received. The plaintiff is administrator of the estate of Henry Rider. The defendant is administrator of John Wilkins’ estate.

On Report of the evidence by Appleton, J. This was an appeal from an order of the Judge of Probate for the county of Penobscot.' D. W. Bradley and G-. L. Boynton were cited on the petition of John W. Veazie, as administrator on the estate of John Winn, to appear before the Probate Court, to be examined on oath, in relation to an alleged concealment or embezzlement by them of property of the deceased.

On an agreed statement op pacts. This was a complaint for flowage occasioned by a mill-dam, entered at April term, 1859.

Exceptions from the ruling of Appleton, J. In October, 1839, the plaintiff recovered judgment against the defendant in the District Court for the Eastern District. September 19, 1859, he commenced this action of debt on the judgment. The defendant, in his brief statement, set forth his discharge in bankruptcy in 1843, under the laws of the United States.

On Exceptions from the ruling of Appleton, J. Assumpsit to recover for supplies furnished by the plaintiff city to Ephraim W. Howe and family as paupers.

This was an action of Trover for $70 in bank bills. The defendant pleaded the general issue. The loss of the bills was proved by the plaintiff’s own testimony.

Replevin for a boat. The plaintiff introduced thé following copy of an order: — “Bangor, Jan. 31st, 1859. “Mr. Francis Merrill: — Please build for, and let Elisha Pettengill’s agent have one twenty foot boat, of the value of sixty dollars, being such a one as he describes to you, and charge to account of your obedient servant, “L. D. Higgins.” The order was duly accepted in writing upon the face of it by Francis Merrill.

On Report of the case by Appleton, J., April term, 1860. Held: in this State or Massachusetts, to be unreasonable time. So seven days, one month, six weeks and two months, have been held tobe reasonable.

This was an action of assumpsit on a note, as follows: — “$231,54. “Boston, Jan’y 25, 1858. “ Four months after date, I promise to pay to the order of Wilson, Fairbanks & Co., two hundred and… Held: wherever it is sought to be enforced. Dater v. Earl, 3 Met., 482, and cases, cited; Banchor v. Mansel, (see ante, page 58.) The contract, therefore, being made in Massachusetts, and being legal there, must be held valid here, and the consideration of the note good.

<p>Whether an agreement made by the officers of two towns, by way of settlement of a pauper suit, that a part of the pauper family should thereafter have their settlement and be supported in one of the towns, and the remainder in another, is binding on those towns, as a contract for the future support of the paupers, qucere.</p> <p>But where a portion of one of the towns aifected by the agreement is incorporated into a new town, the new town is in no way bound by the stipulations of the agreement, but is at liberty to assert all its rights as to the settlement and support of any or all of the paupers.</p>

On Facts agreed. Writ op Entry, for possession of a lot of land in Orneville. The plaintiff claims to recover on a deed of mortgage to him, by “ Betsey J. Lord, wife of Gershom Lord, in her right, and said Gershom Lord,” of the premises demanded, made and recorded on the 16th day of March, 1853, to secure the payment of four notes due to the plaintiff from said Gershom Lord, of even date with the deed.

On Report. Assumpsit on a writing, signed by two of the selectmen of the defendant town, of the following tenor: — -“Pay W. W. Harris or bearer one hundred dollars out of the town funds, given for his claim for damages in building the bridge at Guilford village, payable in six months from date, with interest.” This was dated February 10th, 1857, and directed to David R. Shaw, Treasurer.

On Pacts Agreed. This was an action to recover of the defendants the value of certain lots of land in said town of Elliotsville, belonging to the plaintiff, which had been seized and sold on an execution, against the defendant and in favor of the city of Gardiner.

Reported by Kent, J. The writ, which is in the common form, contains a count, on an account annexed, for labor and also a count for money had and received.

On Report of tbe evidence by Tenney, 0. J. Debt on poor debtor’s bond, dated April 3, 1856. Plea, general issue, with a brief statement alleging performance of tbe first alternative condition named in tbe bond. In March, 1856, Foss recovered judgment against Edwards for $102,50, debt, and $10,26, costs. An execution was issued, and Edwards, on being arrested, gave a poor debtor’s bond, with W. Flowers as surety.

On Report of the facts by Tenney, O. J., March term, 1859. Joseph Annis, the plaintiff, was employed by one Josiah Marsh, during the winter of 185A-5, in getting out logs on Rapagemus stream. As he testifies, a certain mark was put on the -logs on which he- worked, and no other mark was put on them. He settled with Marsh in April, 1855, and took Marsh’s due bill for $64,90, payable in June, then next. $4,00 was afterwards paid and indorsed on the due bill.

Replevin for a cow. The plaintiff held a bill of sale from James Millay, dated Jan. 17, 1855, of certain stock, including “one two year old heifer, red,” &c. The heifer remained in the possession of Millay, and, in the winter of 1856, was placed by Millay in the care of one Phillips. Whilst in his care, the defendant came to him with an order signed by Millay for a heifer.

Trespass on the case. Appeal from a justice of the peace. Oa trial of the appeal, the case was submitted to the Court, on the evidence, with leave to except.

<p>The decision of this Court in a former case, that the assessors of a town have no right to assess one not an inhabitant thereof, applies only to poll taxes.</p> <p>Improved real estate, and personal property enumerated in the statute, may be assessed to non-residents, and, upon neglect to pay -within* the time limited, the collection may be enforced by arrest and imprisonment in the county in -which they may be found.</p> <p>A collector of taxes, under a warrant from the assessors in which the time for completing the collection is specified, may arrest a delinquent after the lapse of the time limited therein.</p>

On Report of the case by Tenney, O. J. Debt on bond. John Pierce, Nov. 30, 1853, brought an .action against Jotham S. Goodrich, on a note of hand, which was entered and continued until December term, 1854, when Pierce recovered judgment. The defendant filed exceptions, but failed to enter them at the law term, June, 1855. The plaintiff entered a complaint at that term, and it was allowed.

<p>This was an action on tbe case against the defendant for aiding Ms son, Samuel T. Joy, in fraudulently transferring certain property to prevent its being attached by the plaintiff as a creditor of the latter.</p> <p>W. R. Smith sold his stock of goods in Brunswick, Dec. 18, 1855, to Samuel T. Joy, for $846,20, and took his negotiable promissory note therefor, payable on demand; which note, May 5, 1856, was negotiated and indorsed to the plaintiff, and Joy duly notified thereof, May 7, 1856. S. T. Joy sold the goods to the defendant, June 20, 1856, receiving in payment three promissory notes of the defendant for about $750.</p> <p>There was evidence tending to show that Smith indorsed the note to the plaintiff to secure him for his liability as bail for Smith. Smith and the plaintiff both testified that the transfer of the note was absolute. It was proved that S. T, Joy had an account of $100, against Smith, before the note was transferred.</p> <p>The defendant requested the Judge to instruct the jury, that if the note was indorsed to the plaintiff to secure his liability for Smith, and the condition of the bail bond had not been broken, the plaintiff had not such a debt against S. T. Joy as to entitle him to recover in this action. This the Judge refused, but instructed the jury, that if the transfer of the note was absolute, as appeared by the indorsement as well as by evidence, the note having been over due when indorsed, the amount due on the note, after deducting any payment made by S. T. Joy, or off-set he had against it, would be the just claim of the plaintiff against Joy.</p> <p>The plaintiff introduced evidence tending to show that the sale by S. T. Joy to the defendant, was made by both parties expressly to prevent the plaintiff from attaching the goods. The defendant introduced evidence tending to show the contrary.</p> <p>There was various conflicting testimony as to the conduct and declarations of S. T. Joy, about the time of the sale to the defendant, particularly as to his offering for sale, as his own, $40 worth of leather in the attic, after his sale to the defendant.</p> <p>The Judge instructed the jury, that the defendant’s rights should not be prejudiced by the words or acts of S. T. Joy before or after the sale, unless it was first proved that the sale was fraudulent, and that the defendant knowingly participated in the fraud; but that, should they be satisfied beyond a reasonable doubt of his intentional participation in a fraudulent transfer, the declarations and conduct of either party concerning the goods would be competent evidence for their consideration.</p> <p>The plaintiff introduced a copy of a writ, Abbott v. Samuel T. Joy, being an action on the note of Joy to Smith, indorsed to the plaintiff; also entries on the clerk’s docket, from which it appeared that the action was entered, defaulted, and continued for judgment, September term, 1856.</p> <p>The verdict was for the plaintiff, for $746,20. The defendant excepted to the ruling and instructions of the Judge, Hathaway, J., presiding.</p> <p>The first instruction requested should have been given. The plaintiff, as bail for Smith, had no such demand against S. T. Joy as to entitle him to recover against the defendant. Penal statutes are to be construed strictly. Thacker v. Jones, 31 Maine, 528; Pullen v. Hutchinson, 25 Maine, 249 ; Craig v. Webber, 36 Maine, 504; Wellington y. Small, 3 Cush., 145.</p> <p>The plaintiff having suffered no injury when he commenced the action, it cannot be maintained. Morgan v. Bliss, 2 Mass., Ill; Fuller v. Hodgdon, 25 Maine, 243.</p> <p>The admission of evidence of S. T. Joy’s acts after the sale to the defendant, was erroneous. Bridge v. Eggleston, 14 Mass., 245; Bartlett v. Delprat, 4 Mass., 702; Clark v. White, 12 Mass., 439. S. T. Joy’s offer to sell leather, after the sale to the defendant, had no tendency to show that the sale to the defendant was fraudulent, and should have been excluded.</p> <p>The transfer of the note was absolute and unconditional, made in writing, and the note delivered. The consideration is wholly immaterial, all payments and claims in set-off by S. T. Joy having been allowed.</p> <p>The instructions of the Judge as to the transfer were correct. The transfer being in writing and absolute, could not be modified by any oral testimony. S. T. Joy’s having been defaulted in a suit on the note, is conclusive as to his indebtedness, collusion not being suggested. But if otherwise, the instructions were not erroneous.' It is not pretended that the liability of the plaintiff on the bail bond had ceased. His liability continuing, the title to the note was valid as between him and all other persons than Smith.</p> <p>The instructions, as to the evidence touching the declarations and conduct of S. T. Joy, were sufficiently favorable to the defendant. The evidence objected to was admissible to contradict that of S. T Joy.</p>

On Report of the evidence-by Tenney, C. J. Writ of Entry to recover possession of a lot of land in Norridgewock. The demandant claimed under a deed from John Lowell to Levi Wyman, dated April 6, 1819, the demandant being said Wyman’s son and sole heir. The deed conveyed the “ easterly part of great lot E 1.” The tenant claimed under a grant from the Proprietors of Kennebec Purchase to Samuel Goodwin, dated Dec. 12, 1770, conveying lot marked E 2, and intervening deeds.

On Exceptions from the ruling, pro forma, of Tenney, C. J. Complaint founded on sections five and six of chapter thirty-six of the statutes of 1858. It was commenced before a justice of the peace, before whom the respondent pleaded “ Not guilty,” upon which issue he was convicted, and, from the conviction, appealed. In this Court, the respondent had leave to retract his plea before the justice, and pleaded a special plea in bar of the further prosecution of the complaint.

Reported by May, J. Assumpsit on the defendants’ joint promissory note, dated at Rockland on the 4th day of June, 1855, for $550, in three months, payable to the order of the plaintiff. Held: by Lord Eldon, that in order to restore a married woman to her right to make contracts, the circumstances must amount to the civil death of the husband, and the wife be entitled to dower, and be put in the same situation as if he were actually dead.

Reported by Cutting, J. This was an action of Assumpsit on a policy of assurance, issued by the defendant company to the plaintiff Nov. 10th, 1856, for §300, on plaintiff’s house, and §15, on his barn, for four years. The writ is dated July 12th, 1858.

This case is presented, on plaintiffs’ Exceptions to the ruling, pro forma, of May, J., presiding at Nisi Prius, discharging the trustee on his disclosure. From the disclosure of the trustee, it appears that, on May 11th, 1857, Weymouth, the principal defendant, assigned to him in trust all his property, for the benefit of such of his creditors, as should, within the time limited by statute, become parties to the assignment.

Exceptions from the ruling of Appleton, J. This was an action of trespass, for maliciously and cruelly beating and killing the plaintiff’s horse. The defendants offered the deposition of Lincoln Benner, one of the defendants, who lives and was at Waldoboro’, in said county of Lincoln, at the time of the trial. There were two other defendants in the action. The plaintiff objected to the deposition, but the objection was overruled and the deposition admitted.

Exceptions from the ruling of Appleton, J., and on Motion for new trial. Assumpsit for labor done upon and materials furnished for the schooner Chance. A copy .of the enrolment of the vessel was offered, to prove that the defendant was owner, which, against the objection of defendant, was admitted.

On Exceptions from the ruling of Mat, J. Action of Assumpsit for money had and received, and was submitted to the presiding Judge at Nisi Prius, with right to except. To the admission of the note above referred to, in evidence, to sustain the count in the writ, defendant excepted.

Reported by May, J. This was on petition for partition of two lots of land in the town of Union, described in the petition, which was entered at… Held: that the reception of interest merely was a ratification. If the partition can be construed as being upon the condition precedent, that condition was waived by the reception of a part even of the money. Here nearly the whole was paid. It was further argued that the respondent had acquired a possessory title to the premises.

<p>Exceptions from the ruling of Cutting, J., and Motion to set aside the verdict.</p> <p>This was an action on the case, brought by the plaintiffs to recover for damages alleged to have been sustained by the female plaintiff, by the giving way and falling of a portion of a building which was owned and used by the defendants, upon their fair grounds in Gardiner, on the 25th day of September, A. D., 1857.</p> <p>The defendants admitted they were a corporation, duly organized under their charter.</p> <p>They also admitted that the female plaintiff was injured by the breaking down of tbe building erected by the defendants upon their grounds, at the time alleged in the writ, but denied that it was on account of any carelessness, neglect or fault of theirs, and contended that the injury was occasioned by unavoidable accident, for which they were in no way responsible.</p> <p>The plaintiffs contended that the accident and injury were caused by reason of the insufficiency and unsuitableness of the building, and of the materials used in its construction.</p> <p>The testimony introduced at the trial was fully reported, as to the condition of the building, the manner in which it was built, and the character of the materials used in building it; of the nature and extent of the injuries sustained by the female plaintiff.</p> <p>One of the grounds of defence, as set forth in the specification of defence filed, was, that neither of the plaintiffs was lawfully within the enclosure of the defendants, or upon their grounds, or within their building, not having paid the sum of money required for admission thereto.</p> <p>Upon this point, David Brown, one of the. plaintiffs, testified “ that he purchased a family ticket before the fair, and, also, that he purchased of John Stone, who acted as ticket seller at the ticket office, three other tickets, for which he paid 75 cents. That these three last tickets were bought the last day, and admitted himself, wife and daughter on the day. of the accident. That Stone was acting as treasurer of the society on that day.”</p> <p>On cross-examination he stated, that he “ bought a member’s, or family ticket, at his house in Richmond, for which he paid one dollar; that, at the time he purchased the three tickets of Stone, on the last day, for himself, wife. and daughter, he had his' family ticket in his pocket, but did not exhibit it either to Mr. Stone or the gate keeper; that he and his wife and daughter all went in to the fair grounds on the morning of the 25th of September; by virtue of these tickets; all he did was to exhibit the tickets he purchased that day; that he and his wife went in and out two or three times that day, without purchasing any other tickets; that there was a balloon ascension from the fair grounds on the said 25th of September; that, shortly after the fair, he called on the said John Stone and requested him to pay back to him the 75 cents, which he paid for the balloon ascension, and that said Stone.did pay it back to him.”</p> <p>It was also in evidence, “ that, on the day of the accident, there was a balloon ascension, and each person was charged twenty-five cents additional for a ticket to witness that exhibition.”</p> <p>The Judge was requested by the defendants’ counsel to give the. following instructions:—</p> <p>1. That, in order to enable the plaintiffs to recover, they must prove the injury was occasioned solely by the gross carelessness or negligence of the defendants.</p> <p>2. That if the falling of the building which caused the injury was occasioned by any hidden or latent defect in the timbers, unknown to the defendants, and which common care and. prudence could not detect, the defendants are not liable.</p> <p>3. That if the jury find that Mrs. Brown went in a second time under a twenty-five cent ticket, contrary to the regulations of the trustees, and was injured by the falling of the building, she cannot recover.</p> <p>4. That, upon the facts proved in the case, the plaintiffs cannot maintain this action.</p> <p>The first and fourth were not given, nor was the second in the language of the request.</p> <p>But the Judge, among other things not excepted to, did instruct the jury that the defendants were only liable for the want of ordinary care; that, whether the defendants used ordinary care, prudence, skill and foresight in the erecting, maintaining and repairing said building, was a question for them to determine upon the testimony. That if 'they did exercise such care, the plaintiffs could not recover.</p> <p>In connection with the third requested instruction which was given, the Judge told the jury, “ that if Mrs. Brown was on the ground, and the society had a gate-keeper in charge, they would be authorized to infer; unless controlled by the evidence, that she was rightfully there.”</p> <p>The verdict was for the plaintiffs.</p> <p>To which rulings, instructions, and refusals to instruct, the defendants excepted.</p> <p>That, upon the facts proved, this action cannot be maintained, and such should have been the ruling of the Judge presiding at the trial.</p> <p>The Act incorporating the defendants does not confer upon the corporation the general powers, rights, duties and obligations of ordinary private corporations. The objects, duties, powers, rights and purposes are specified and defined in the Act. They are allowed to take and hold property, the income of which shall not exceed $3000 annually, to be applied to the advancement of agriculture, horticulture and the mechanic arts. It was not the intention to invest them with general powers incident to ordinary corporations, or impose upon them the general burdens and liabilities of private money corporations. The power to sue and be sued is incident to all corporations, and may be exercised, so far as is necessary to carry out the objects and intentions of the society, whether specially granted or not. 2 Kent’s Com., 277; A. & A. on Corp., (3d ed.,) 19, 21, 32; School Dist. in Rumford v. Wood, 13 Mass., 193.</p> <p>This power does not necessarily imply authority to maintain this action. The defendants are merely an association with a corporate capacity, for particular and specific ends, with the right to sue to enforce their contracts, and a liability to be sued for a violation of contracts and agreements made in pursuance of the authority conferred by their charter, and for no other purpose. Their rights, powers, &c., are similar to those of counties, towns, &c., usually called quasi corporations, against which no action will lie, unless expressly given by statute. Russell v. The Men of Devon, 2 Durn. & East, 667, 671; 2 Kent’s Com., 278; A. & A. on Corp., 85, 566; Molman v. Townsend, 13 Met., 297; Hooper v. Emery, 20 Maine, 246; see also, Jackson v. Hartwell, 8 Johns., 424.</p> <p>How proper aggregate corporations are distinguished from quasi corporations, see Riddle v. The Proprietors of Locks $ Canals on Merrimack River, 7 Mass., 169; Adams v. Wiscasset Bank, 1 Greenl., 361; Foster v. Lane, 10 N. H., 315; Merchants' Bank v. Cook, 4 Pick., 405.</p> <p>This society is a corporation only in name. Its powers are exercised and held only for the public good. There are no private interests to be advanced. No one has any interest or right which he can sell or transfer. No dividends can be made, even if there is a surplus; all must be applied to the advancement of agriculture, &c., according to the terms of the charter. All the elements which go to make up a general body politic and ordinary corporation are wanting here.</p> <p>It was only for the advancement of agriculture, &c., that this society was incorporated. For no other, purpose could they organize or take and hold property; for no other object could they assess members or collect funds. R. S., c. 58, § 17. On the day of the accident there was a balloon ascension from the fair grounds. The exhibition of stock, agricultural products and implements, &c., was on the first and second days; on the third the member’s ticket was to be given up, and, for the exhibition on the last day, a sum additional was charged. The plaintiffs were then admitted “ by virtue of the tickets purchased on the last day, not for the purpose of attending the cattle show or fair, or any exhibition connected with, or belonging to, “ agriculture, horticulture or the mechanic arts.” The ticket was purchased to witness the balloon ascension, and nothing else; an object in no way connected with any object for which the society was organized. No liability attaches to the society, as a corporation, for any injury occasioned under such circumstances, whether the officers sanctioned such an exhibition or not, for, in so doing, they exceeded their authority. Thayer v. Boston, 19 Pick., 511; Mitchell v. Rockland, 41 Maine, 363; State v. Great Works Mill Co., 20 Maine, 41.</p> <p>Neither can a corporation subsequently ratify acts of its agents, which it could not have directly authorized them to do. Hodges v. The City of Buffalo, 2 Denio, 110.</p> <p>The third requested instruction should have been given without any qualification. The plaintiffs were not lawfully there, because they were not there “ in conformity with the regulations of the officers of the society.” R. S., c. 58, § 17; and were liable to the penalty provided for in such case by 18th section of the same chapter.</p>

Reported by Tenney, C. J. This was an action on the case, for an injury alleged to have been done by the defendants to the plaintiff’s fishing, by the erection of a weir. The action was commenced on August 8, 1857. . It appeared in evidence, that all the records of the Kennebec Proprietors were placed in the hands of Ru'el Williams, when they closed, in 1816, and that the deed of the right to Kennebec river was dated January 15, 1668.

Reported by Cutting, J. Assumpsit on a promissory note of Foster & McFarland,made payable to the order of the defendant, and by him indorsed, dated Richmond, October 20,1854, for eight hundred dollars at either bank in Boston, in three months. The note is also indorsed, “ pay to Charles Sprague, Cashier, or order. Otis Kimball, Cashier.” The writ is dated February 16th, 1858.

Exceptions from the ruling of Cutting, J. This is an action of Trover, brought to recover of the defendant the value of ten tons of hay, cut and taken from a farm mortgaged to the plaintiff.' The writ was dated March 19th, 1858.

Scire Facias. On Report by Rice, J. The plaintiff was a creditor of John T. Cahill, and, as such, brought an action against Cahill, and summoned the defendants as trustees. It appears by the defendants’ disclosure, made at August term, 1857, that they had a written contract with Cahill and John Healey, dated August 9,1853, for the construction of their railroad, .by which the contractors were to receive $287,000, of which $75,000 was to be paid in stock at the par value.

Bill in Equity. It appeared by the bill and answer, that the respondent, Dec. 14, 1850, conveyed to Jefferson Pierce, the plaintiff’s intestate, certain land in Vassalborough, and at the same time the said Pierce gave to the respondent a mortgage of the same land to secure the payment of certain sums therein named. The.plaintiff claimed by his bill to redeem the premises by fulfilment of the conditions of the mortgage, and called for an account of rents and profits received.

Action op Review. On Report by Rice, J. Zebah Washburn was cashier of the Canton Bank in China. Blake, Bigelow & Co., of Boston, held a certificate of ten shares of stock in the bank, transferred by A. Pierce, Jr., in blank and unrecorded. The important facts in the case are fully stated in the opinion of the Court.

This was an action against the defendant, as sheriff of Kennebec county, for default of his deputy, Elbridge Berry, in not safely keeping goods attached by him on a writ in favor of the plaintiffs, against one Joseph S. Lambard, in not paying over money collected on the execution against Lambard, and in not returning said execution or satisfying it on Lambard’s property, or executing it as he was bound by law to do.

<p>A presiding Judge is not required to define to the jury the meaning of words in common and ordinary use, or to which the law has attached no specific meaning.</p> <p>What constitutes “unfaithfulness” on the part of commissioners appointed under a complaint for flowage, so as to invalidate their report, is a question of fact for the jury.</p>

On Report. Assumpsit to recover of the defendant the sum of one hundred and ten dollars as the difference in the two sales of certain real estate, in the city of Gardiner, with the expenses of the last sale. The date of the writ is November 7, 1857. The plaintiff introduced evidence that Joshua K. Osgood was duly licensed as an auctioneer.

On case stated bt the parties. The action is brought against the defendant as the indorser of a writ in favor of one Sarah Towns, against the present plaintiff, in which the defendant was the attorney of said Towns.

Exceptions from the ruling of Bice, J. This is an. action of trespass quare clausum against the defendants, for entering upon a parcel of land described in plaintiff’s writ as bounded northerly by a certain road. The action was commenced before a justice of the peace, and removed to this Court by the pleadings. The writ and pleadings, and the original location of said road, are a part of the case.

<p>It is provided by § 5, c. 81, of R. S., of 1840, that in locating railroads, “no corporation shall take any meetinghouse, dwellinghouse or public or private burying ground, without the consent of the owners thereof,” — Held, that the term dwellinghouse, as here used, means only the house, and includes no part of the garden, orchard or curtilage.</p> <p>The right of eminent domain confers upon the Legislature authority to take private property, for public uses, when the public exigencies require it, subject only to that provision of our Constitution which exacts just compensation ; and a dwellinghouse is no more exempt than any other species of real estate, when the Legislature, in the exercise of that right, determines that the public exigencies require it.</p>

Exceptions from the ruling of Hathaway, J. The writ contains several counts for distinct and different, wilful and malicious trespasses.

This was a suit by an indorsee against an indorser of a promissory note for §5000, payable at the Suffolk Bank in Boston. In disposing of the case, the clerk was inadvertently directed to allow the plaintiff damages for the protest, as upon a bill of exchange. See Loud v. Merrill, 45 Maine, 516.

Exceptions from the ruling of Bice, J. Assumpsit to recover back $200, paid towards the purchase of land, and to recover damages, for a breach of contract for the sale of the same land. At the August term, 1859, the defendant made an .offer in writing to be defaulted for the sum of $235, debt or damages, which was entered on the docket. It does not appear, from the docket, that the Court fixed any time in which the plaintiff was to accept the offer.

Reported by Rice, J. This was an action of assumpsit for use and occupation of certain real estate. There was no evidence in the case except the testimony of the plaintiff; the material part of which was, that in the spring of 1853, he made a verbal bargain to sell the defendant a farm which he owned in Hallowell. The price agreed on was to be paid in two or three months. At the expiration of the time, the defendant could not pay.

<p>Under statute of 1858, o. 33, § 14, on a warrant authorizing a search, for intoxicating liquors, kept for illegal sale, and the arrest of the keeper, when such liquors are found, the fact that such liquors having been found is to be proved before the magistrate by competent evidence under oath, and not by the return of the officer.</p> <p>Under § 20 of the same statute, if the officer is prevented from seizing the liquors by their being destroyed, he may arrest the keeper, in which ease he must malee return on the warrant of his being so prevented, and how, and, as near as may be, the quantity destroyed; but, before the magistrate, these facts are to be proved by evidence under oath, and not by the return.</p> <p>It is not necessary that the officer should make return of the fact and manner of the destruction of the liquors, before arresting the keeper.</p> <p>Where an officer returned, on his warrant, that he found “ a demijohn containing one gallon, more or less, of what I called St. Croix Rum," which the keeper destroyed before he could seize it, whereupon he arrested the keeper and took him before a magistrate for trial; the person who, by violence, prevented the officer from seizing the liquor, and ascertaining its quality with certainty, cannot object that his return is not sufficiently certain.</p>

<p>On Report of the evidence by Rice, J.</p> <p>Debt on a bond. Plea non est factum, with a brief statement, setting forth a paper signed by Mary W. Southwick in bar of the further prosecution of the suit.</p> <p>The plaintiffs introduced the bond declared on, bearing date June 2, 1852, given by the defendants to the plaintiffs, binding the obligors, in consideration that the obligees had released to them all claim to the accounts, notes and demands of the late co-partnership of Southwick & Hopkins, and had paid the sum of $2500, to said Hopkins, to indemnify the obligees against all demands due from the said firm. The obligees were the widow and daughters of Jacob Southwick, late co-partner in the firm, but now deceased, and Mary ~W. South-wick was his administratrix. It was admitted by the defendants that the conditions of the bond had been broken prior to the commencement of the suit.</p> <p>In defence, the defendants introduced the following instrument, which is the same referred to in their brief statement: — “ Whereas I have this day been informed that an action has been brought in my name, and that of Eliza W. Longfellow, Maria Colburn and Wales R. Stockbridge, against Prince Hopkins, Edward S. Weeks and Eben Hawes, which action is made returnable to the next term of the Supreme Judicial Court, to be holden at Augusta, within and for the county of Kennebec, on the third Tuesday of August next: — “ This is to notify all whom it may concern that I never authorized or gave my consent in any way or manner to the commencement of said action, and I hereby forbid the same from being any further prosecuted in my name.</p> <p>“ Given under my hand and seal, at Yassalborough, the 28th day of July, A. D., 1858. “M. W. Southwick. [Seal.]</p> <p>“ Attest: Josh. Perkins.”</p> <p>The plaintiffs then introduced an indenture, dated June 2, 1852, between Mary W. Southwick, one of the plaintiffs, of the first part, and Eliza W. Longfellow, Maria S. Colburn and Margaret T. Stockbridge, the other plaintiffs, and their husbands, N. Longfellow, A. Colburn and W. R. Stockbridge, of the second part, by which the said Mary W. Southwick released to the other parties all her right to dower, and all other right and claim in the estate of her deceased husband, Jacob Southwick; in consideration of which, the parties of the second part agree to secure to her, for life, the homestead of the deceased in Yassalborough, and also ten acres of woodland, and to pay her six hundred dollars a year, to secure the payment of which $10,000 was to be deposited with certain named trustees.</p> <p>It was admitted by the defendants that said Eliza W. Longfellow, Maria S. Colburn and Margaret T. Stockbridge, in addition to the $2500 mentioned in the bond, had paid of the debts of the firm of Southwick & Hopkins, the further sum of from $1600 to $2000, which was in judgments recovered against the administratrix, and that Mary W. Southwick had paid no part of said debts.</p> <p>The case was taken from the jury, and reported to the full Court, with the agreement that if, upon so much of the evidence as was legally admissible,' the action could be maintained, the defendants were to be defaulted and to be heard in damages; otherwise the plaintiffs to be nonsuit.</p> <p>The admission of the breach of the conditions of the bond shows that the plaintiffs have a right of action.</p> <p>The paper signed by Mary W. Southwick is no defence. It is not a discharge of the right of action, nor an accord and satisfaction. Mrs. Southwick merely denies that she authorized the s_uit, and forbids its further prosecution in her name. If available at all to the defendants, it is too late after pleading the general issue.</p> <p>Mrs. Southwick has no interest in ,the bond in suit. The bond was given to secure the estate of Jacob Southwick against liability for the debts of the firm of Southwick & Hopkins. On the day of its date, Mrs. Southwick assigned to the other plaintiffs all her interest in the estate. They have paid all of the debts of the firm which the estate has had to pay. Mrs. Southwick'has paid none of them. The assets of the estate assigned to them have thus been reduced some $2000, by means of the defendants’ not fulfilling their contract. Mrs. Southwick had no authority to discharge the suit. The other plaintiffs are the parties in interest, and have a right to use her name to enforce their rights. Lunt v. Stevens, 24 Maine, 534.</p> <p>The paper signed by Mrs. Southwick is technically a release. 1 Com. Dig., tit. Release, A (1.) A release may be by express words, or act in law. Co. Lit., 264. No particular words are required. Being under seal, a valid consideration is implied.</p> <p>Immediately after she knew of the commencement of the action, she gave the defendants a paper, denying having authorized the use of her name, and forbidding the further prosecution of the suit. This she had a legal right to do. A release under seal discharges all the obligors in the bond. Walker v. McCalloch, 4 G-reenl., 421. In Lunt v. Stevens, 24 Maine, 534, the paper given was similar, but was held insufficient, because not under seal.</p> <p>In England, where a nominal plaintiff, or one of several plaintiffs, releases an action in fraud of the party in interest, the courts set-aside the release. In Massachusetts, they have never assumed such power. Eastman y. Wright, 6 Pick., 323; Wilson v. Mason, 5 Mass., 411. If one party to a contract refuses to join in a prosecution, the others have a remedy against him by a special action on the case.</p> <p>It is well settled that a release by one of the joint obligors discharges the whole.</p>

This was an action to recover for supplies furnished to certain paupers belonging to Chelsea. The liability of the defendants was admitted. The defendants filed in set-off an account against the plaintiffs for supplies furnished to paupers of Augusta..' The .settlement of the paupers, their necessities and the supplies claimed to have been furnished, were admitted.

<p>In a contract between A, “ of the one part,” and B, C and D, “ of the other part,” in which A agrees to build a vessel of certain dimensions, and B, C and D to pay certain sums at stipulated times for eleven-sixteenths of the vessel, the liability of the parties of the second part is joint, and not several.</p> <p>"Words set against the signatures of B, C and D, indicating the proportional share of each in the vessel, will not affect their joint liability, nor vary the construction of the contract.</p> <p>Proof of a custom in the vicinity for persons building a vessel together, each to be responsible for his own share only, is inadmissible to modify a written contract.</p> <p>Payments made by one of the part owners towards his share, and receipted for as such by the builder, the receipts not being under seal, will not sever the indebtedness, nor affect their joint liability for a balance unpaid.</p> <p>The rule that one part owner of a vessel aggrieved by another must resort to a bill in equity for redress, applies only to eases relating to her earnings or disbursements, where no settlement has been made or account stated between them.</p> <p>An action at law may be brought by one party to a contract for the building of a vessel, against another party to it, for a breach thereof, although the plaintiff and defendant are to be part owners or tenants in common.</p>

Assumpsit on a policy of insurance against loss by fire on buildings in Windsor. The policy, dated September 13, 1854, was in favor of. Joseph Marson, and for the term of four years, and was assigned by him to the plaintiff, Nov. 7, 1855, and the assignment ratified by the directors of the defendant company, Nov. 16, 1855. The plaintiff introduced a deed from Marson to himself, dated Oct 10, 1855, but executed and delivered on the day of the assignment of the policy.

This is a complaint and warrant for search and seizure, under the Act of 1858, for the suppression of drinking houses and tippling shops, § 14. The complaint was made to the Municipal Court for the city of Augusta, and warrant issued, Oct. 14, 1859. The case was tried in that Court, and judgment given against the defendant, from which he appealed.

This was a libel, by J. L. Heath before the Municipal Court for the city of Augusta, against certain intoxicating liquors, a part of which were claimed by the defendant. It was tried in the Municipal Court, and judgment rendered against the defendant, from which he appealed.

Assumpsit on a policy of insurance for three years, in favor of the plaintiff, upon a store and goods in Wilton, dated Dec. 30, 1856. By the terms of the policy, the application and description of the property was made a part of the contract.

<p>Trespass. On Report by Hathaway, J.</p> <p>The defendant Morrill was collector of taxes in the town of Strong, and the other defendants were the assessors, for the year 1851. The action was brought April 5, 1858, for trespass in the assessment and collection of a tax against the plaintiff, he being an inhabitant of New Yineyard.</p> <p>By a special Act of the Legislature, passed March 28,1856, certain territory, with the inhabitants thereon, was set off from Strong, and annexed to New Yineyard. The second section of the Act provided as follows: — ■■</p> <p>“ The inhabitants of the territory hereby set off, shall be holden to' pay all the taxes which have been legally assessed upon them; and also their proportion of all the corporate debts and liabilities of said town of Strong, at the time this Act shall take effect, including their portion of- the expense of completing the bridge across the Sandy river, in said town of Strong, voted to be built and now in process of construction, by said town; and also their portion of the expense of opening and making passable a certain county road extending from the river road, so called, on the west side of said river, in said town, in a westerly direction, to the west line of said town, located and accepted within two years last past, by the county commissioners for the county of Franklin; provided, the same is not discontinued, to be assessed according to the valuation of'said town for the year eighteen hundred and fifty-five ; and taxes already assessed, as well as those hereafter to be assessed upon said inhabitants so set off, may be collected in the same way and manner, and by the same persons, as if this Act had not been passed.”</p> <p>The plaintiff was an inhabitant of that part of Strong which was annexed to New Yineyard.</p> <p>It appeared in evidence, that, after the passage of the special Act, the inhabitants of Strong caused an estimate of the liabilities embraced in the Act to be made, amounting to nearly §8000; and, at a town meeting held March 9, 1857, the town voted “to raise the sum of six hundred dollars, to be assessed on the inhabitants of that part of- New Yineyard which formerly belonged to Strong, and was set off agreeably to an Act entitled an Act to set off certain lands from the town of Strong, and annex the same to the town of New Yineyard, approved March 28, 1856.”</p> <p>The assessors, in accordance with this vote, made a separate valuation of the territory in question, and assessed upon the polls and estates embraced in the valuation the sum of $617,69, including overlayings, and committed the same to J. J. Morrill, collector of taxes for the town of Strong for that year, for collection. Included in the tax, thus assessed and committed, was the sum of §23,50 assessed to the plaintiff. This sum was demanded of the plaintiff by the collector and afterwards paid, and this action of trespass brought.</p> <p>The defendants pleaded the general issue, with a brief statement, setting forth their official character, the Act of the Legislature, the vote of the town, &c.</p> <p>The case was taken from the jury, and submitted to the full Court, with power to render judgment by nonsuit or default, according to the legal rights of the parties, on so much of the evidence as was legally admissible; and, if by default, then for the amount of taxes and costs paid by the plaintiff, and interest thereon.</p> <p>argued that the town of Strong could not assess on the polls and estates set off except as they assessed in the same proportion on the polls and estates remaining in Strong. Nor could they assess and collect the proportion of the part set off by installments, as they attempted to do. If Strong has any claim upon that territory, the proper remedy is not by taxation, but by some mode by which both parties may have a voice in ascertaining the equitable amount to be paid.</p> <p>Towns derive all their powers from legislative enactments. The tax complained of was not voted for a legal object.</p> <p>The assessment being illegal, both the assessors and collector are personally liable. 12 Maine, 378; 2 Maine, 375; 15 Mass., 144; 15 Pick., 44.</p> <p>contended that the Legislature, in dividing towns, have the power to equalize the burdens as they have done in this instance, and the plaintiff, having enjoyed the benefit of the change made by the Act, is bound by its provisions. The Courts should give such a construction to the Act as will enable the town of Strong to execute it. Brewster v. Harwich, 4 Mass., 280. Where a statute creates a power, and prescribes The mode of executing it, it can be executed only in that mode. A. Sj M. Turnpike v. Gould, 6 Mass., 44. A statute is to be construed according to its intent. Gove v. Brown, 3 Mass.; 540; Pease v. Whitney, 5 Mass., 380; Stone v. Pierce, 7 Mass., 458; Gilson v. Penney, 15 Mass., 205.</p> <p>In § 2 of the Act to set off part of Strong, the Legislature evidently intended to charge the part set off with their proportion of the debts and liabilities of Strong, and to provide for the assessment and collection of the amount.</p> <p>Private statutes should be construed as the parties understood them at the time. How this was understood, is shown by the fact that $800 were assessed on the plaintiff and other inhabitants of the same territory in 1856, and the whole voluntarily paid.</p> <p>The assessors, acting in the discharge of their duty, are not personally liable. R. S., 1841, c. 14, §56; Powers v. Sanford, 39 Maine, 183; Trim v. Charleston, 41 Maine, 504; Patterson v. Creighton, 42 Maine, 367, 380. Nor the collector. § 8; Sprague v. Bailey, 19 Pick., 436; Ford v. Clough, 8 Maine, 334.</p> <p>The case does not show that the assessors assessed upon this territory faster than upon the polls and estates remaining in Strong; but, if so, it was by the consent and choice of the plaintiff and his associates in procuring the separation to be made. The assessment was to be made on the valuation of 1855, and, therefore, the sooner made the less inconvenience would be suffered.</p>

Trespass for taking and carrying away certain machinery from a shop in Winthrop, Dec. 10,1857. Plea, general issue. The plaintiff claimed under a mortgage of the property to himself, from Leonard E. Craig, dated.Sept. 28,1856, and recorded Oct. 2, 1856. The mortgage was produced on the trial, and also two notes secured therein, one for $500, and the other for $200. The plaintiff testified that but $200 had been paid on the debt secured.

This was au action op the case against the defendant as a common carrier. The defendant was a stage proprietor, and carried passengers for hire, and, amongst others, the plaintiff, a young, unmarried female, over the road where, Aug. 8,1857, she received an injury.

Award of Referees. The plaintiff claimed that the defendant should “ pay for and take and purchase of him” certain lands at a price named, and fulfil the stipulations of a bond given to him by Mace, dated April 27, 1852.

<p>This was a complaint against the defendant for having, on Jan. 15th, 1859, in his cellar in Industry, where then was his dwelling-house in which he lived, since burned, “ intoxicating liquors kept and deposited” by him, he not being authorized by law to sell said liquors, “ and that said liquors then and there were intended for sale in this State in violation of law, against the peace,” &c. There was evidence tending to showa that the defendant had in his keeping certain intoxicating liquors, and other evidence tending to prove that he had never sold any of the liquors. The veMict was “ guilty.”</p> <p>The defendant filed a motion in arrest of judgment, because, amongst other reasons, the complaint did not allege that the liquors were kept by the defendant with intent to sell them in this State in violation of law, or with intent that they should be so sold by any person, or to aid or assist any person in such sale.</p> <p>argued the several points embraced therein; but, in the view taken by the Court, the case turned upon a single point.</p>

Debt on bond. On Report by Tenney, C. J. It appeared that tbe bond was given by tbe defendant Pike, with the other defendants as sureties,, for the purpose of procuring a stay of execution on a judgment recovered by Crehore against Pike, in order that the latter might bring an action of review.

<p>On Report by Hathaway, J.</p> <p>This was an action of trespass quare clausum fregit, tbe plaintiff being the owner of one undivided twelfth part of certain premises in Farmington, and naming the other co-tenants in the writ, according to the provisions of the Revised Statutes of 1857, c 95, § 14. The trespasses are alleged to have been committed from'Jan. 1, 1858, to Sept. 9, 1858. Plea, the general issue, with a brief statement alleging that the acts were done as the servant of the Androscoggin Railroad Company, who claimed to own the premises.</p> <p>The plaintiff, as also the other co-tenants, derived their title from the will of Sylvanus Davis, who having deceased, said will had been duly proved.</p> <p>There was testimony tending to show the acts of trespass, or a part of them, alleged in the writ.</p> <p>The defendants introduced an instrument under seal, dated June 20, 1856, given by Edward P. Davis to the Androscoggin Railroad Company, by which said Davis, in consideration of fifty dollars acknowledged to have been paid to him by said company, covenanted to give them on demand a good and sufficient deed of the same premises on which the alleged trespasses were committed. Edwjard P. Davis owned three undivided twelfth parts of the premises.</p> <p>Edward P. Davis, called by the plaintiff, testified that he signed the agreement, after being urged to do so, because otker land owners in the vicinity had given a right of way across their land; but that his mother, who owned eight-twelfths of the premises, did not assent to the contract.</p> <p>The defendant introduced the location of the road, and called A. B. Crosby, who testified that he made the location, and located the depot on the land in question.</p> <p>John B. Jones, called by the defendant, testified that he saw Davis’ mother, when he made the bargain with Davis, and she said she would join in the deed. He further stated that he, as one of the directors of the company, had repeatedly demanded a deed of Edward P. Davis, but had obtained none.</p> <p>Mrs. Tarbox, the mother of the plaintiff and of E. P. Davis, called by the plaintiff, testified that, when called upon by Jones, she repeatedly refused to give the land; that she never read the writing given by her son, but told him to do what he pleased with his own part; and that she afterwards directed him to forbid the defendant occupying the land.</p> <p>The plaintiff and E. P. Davis both forbid the defendant occupying the land in June, 1858.</p> <p>The company built their depot on the premises, the defendant aiding more or less.</p> <p>The testimony having been adduced, the case was withdrawn from the jury, and the evidence reported, for the full Court, with jury powers, to enter such judgment as law and evidence may require.</p> <p>argued that the paper signed by E. P. Davis conveyed no title to the land, nor was there any evidence tending to show title in the company, or any defence to the action.</p> <p>The plaintiff and his brother E. P. Davis, at the time the latter gave the railroad company a bond to convey the premises, were in exclusive possession, as admitted by their mother. By the bond of E. P. Davis, he gave the company immediate possession of the premises. The case finds that they continued to occupy the land, without objection, until June, 1858. On these facts, can this action be maintained ? '</p> <p>At least, the company obtained possession of E. P. Davis’s three-twelfths of the land, and became co-tenants of the other owners. Can one co-tenant maintain trespass against another, unless it bé for waste ?</p> <p>The time limited for the company to file its location had not elapsed when this action was brought. The location was made in June, 1856, and trespass could not be brought if the damages were assessed within three years thereafterwards. R. S., c. 51, § 5. The action was prematurely brought.</p> <p>The locus in quo was taken, under the statute, by the location made in June, 1856.</p> <p>argued that E. P. Davis’s agreement was a mere undertaking, when called upon, to give the company a deed of the premises. It gives them no right or permission to occupy immediately.</p> <p>Section 4 of c. 51, R. S., provides that the company shall not enter upon land taken for railroads, except to make surveys, until the location is filed, and the damages assessed and secured. It is not shown that the location has been filed. The damages have not been assessed or secured. The occupation of the premises by the company is, therefore, unauthorized.</p>

Exceptions from the ruling of Goodenow, J. Assumpsit on a promissory note of which the defendant was the maker and the plaintiff the indorsee. It was alleged by plaintiff that the note had been lost, or had fallen into the hands of the defendant since the action was instituted. To account for the non-production of the note at the trial, and to entitle the plaintiff to prove its contents to the jury, he offered testimony.

<p>An indictment, alleging that the respondent was a common seller, &c., on the first day of July, A. D., 1858, and on divers days and times between that day and the day of finding an indictment in October following, is not bad, although offences committed during a portion of that time are punishable under the Act of 1856, and during the remaining portion, under the Act of 1858.-</p> <p>The phrase “ and on divers days," §«., may be rejected as surplusage.</p> <p>Or the attorney for the State may enter a nol. pros, as to offences committed after the law of 1858 took effect.</p> <p>On such an indictment the respondent may be convicted under the Act of 1856, but not, it seems, under the Act of 1858.</p>

Trover for a horse. It was admitted that the defendant bought the horse in question in 1855, and was the owner and possessor until August or September, 1858, when he sold or disposed of it to one Dakin. The evidence was conflicting, whether the defendant sold the horse to Dakin absolutely, or bargained to sell to him on certain conditions, retaining the title in himself. The question was put to the jury, and they returned a special verdict that the sale was unconditional.

This was an action of trespass quare clausum, fregit, for breaking and entering the plaintiff’s close, with counts for cutting and carrying away pine trees, &c. The verdict was for the plaintiff for §5,87 damages. The presiding Judge, Goodenow, J., ordered the clerk to make an entry on his docket, restricting the plaintiff to costs equal only to one quarter of the amount of damages recovered.

Reported by Tenney, C. J. This was an action of trespass for assault and false imprisonment by defendant, wbo justifies as a magistrate. The plaintiff proved that he was committed to jail, in Auburn, on August 31st, 1858, on defendant’s warrant of commitment, and was there detained until after October 6th, 1858.

Exceptions from the ruling of Goodenow, J. This was an action of assumpsit, commenced by George Knight, as the indorsee of a promissory note of which the defendants were makers. Pending the suit, Knight was convicted of a capital offence, and, at the time of the trial, was in prison, under sentence of death.

Exceptions from the ruling of Tenney, C. J. This was an action of assumpsit, in which the defendant is declared against as guarantor of a certain note described in the writ. The note was overdue when the defendant signed the writing on the back of it, in these words: — “January 12, 1857.

On Report of the case, as made by the parties. This is an action of assumpsit against the defendant, as maker of a promissory note, dated March 7th, 1857, for the sum of $32,23, payable to the plaintiffs, on demand. The writ is dated the 12th day of April, A. D., 1858. The note in suit was read in evidence.

<p>On Exceptions.</p> <p>This was an appeal from a decree of the Judge of Probate for Androscoggin county, allowing and approving the last will and testament of Walter Jordan, deceased.</p> <p>The will was attested by James Weymouth, Sargeant Whittum and John L. Jordan, and was dated Nov. 15,1858.</p> <p>James Weymouth was named in the will as executor, and John L. Jordan was the brother of the testator.</p> <p>The reasons of appeal werethat the will was not executed in the presence of three disinterested and credible witnesses; and that the will was void because it was not executed in conformity to the provisions of the statute.</p> <p>The presiding Judge ruled, pro forma, that the will was duly executed and affirmed the decree of the Judge of Probate ; and the appellant excepted.</p> <p>At the time of the date of the will, and the decease of said Walter Jordan, the B. S. of 1857, c. 74, § 1, was in full force and not repealed, which, among other things, requires that a will shall be subscribed, in the presence of the testator, by three disinterested and credible attesting witnesses.</p> <p>Whether a will is properly executed, is to be decided according to the laws of the State in which the property is, that are in force at the date of its execution. U. S. Dig., vol. 3, tit. Wills, § 27 & 28, page 670; Kerr v. Moore, 9 Wheaton, 566 ; Mullen v. McKelvey, 5 Watts, 399 ; TJ. S. Dig., vol. 14, tit. Wills, § 56, page 593; Doane v. Hadloch, 42 Maine, 72.</p> <p>The competency of an attesting witness to a will relates to the time of the attestation, and must be determined upon the state of facts existing at that time. TI. S. Dig., (supplement,) vol. 5, tit. Wills, § 141, page 952; Taylor v. Taylor, 1 Eichardson, 531; Fatten v. Tallman, 27 Maine, 17.</p> <p>John L. Jordan was not a disinterested witness.</p> <p>The word “ disinterested,” as used in the statute referred to, (B. S., c. 74, § 1,) will admit of, and can have only such definition and signification as is provided by law, and that definition and signification is fixed by the B. S. of 1857, c. 1, § 22, and it is not perceived how courts can be authorized to consider it as having any other meaning. By doing so, it is respectfully urged, they must disregard the provisions of that section.</p> <p>The word “ credible,” as applied to attesting witnesses to wills, has, by numerous decisions, been held to mean competent, according to the laws in force at the time of attestation, and the word “ competent” means “ having necessary legal qualifications.” Worcester’s Dictionary; Hawes v. Humphrey, 9 Pick., 350; Haven v. Hilliard, 23 Pick., 10.</p> <p>The appellant in this case further contends, that James Weymouth, one of the attesting witnesses to the will, was an incompetent witness, because he was named as one of the executors of the will, and, although he relinquished his trust as executor, after the will was filed for probate, yet the statute does not provide any remedy, in cases of this kind, by which he could purge himself from any interest, so as to be made a legal witness; but, on the contrary, the R. S. of 1857, c. 82, § 80, seems to establish the position here taken. 1 G-reenl. Ev., 394; U. S. Dig., vol. 10, tit. Wills, § 50, page 436.</p> <p>If it is contended that “disinterested” means not pecuniarily interested, the answer is, that the statute (c. 1, § 22) expressly provides that, when a person is required to be disinterested, a relationship to either of the parties, within the sixth degree, will disqualify.</p> <p>Separate opinions were delivered by Appleton, J., and Goodenow, J.</p>

<p>On pacts agreed. This was an action of debt, to recover the amount paid by the plaintiffs to the superintendent of the State Reform School, for the support of a boy whose settlement was alleged to be in the defendant town.</p> <p>Under appropriate specifications of defence duly filed, the defendants denied that the boy had been legally committed to the Reform School.</p> <p>The complaint, (a copy of which is given in the margin,*) warrant and mittimus upon which he was committed, and the by-laws of Lewiston were made a part of the case. The contents of the mittimus are stated in the opinion.</p> <p>Several questions were made in reference to the by-laws, but, in the view of the case taken by the Court, they became immaterial, and the statement of them is omitted.</p> <p>To what extent can the inhabitants of Fairfield be permitted to go back into the matter preliminary to payment of the snm named, in order to avoid being answerable to Lewiston ?</p> <p>Are they to be allowed to go into all the preliminary proceedings, and, if the statute in all respects has not been complied with in every particular, no matter how trivial, by magistrate, superintendent, and any and all who have any duties to perform, can they set up these things in defence of this action, or, if Lewiston has paid the sum sought to be recovered upon demand of the proper officer, is it not recoverable of defendants ?</p> <p>These preliminary matters, it is urged, cannot be gone into. Lewiston when called upon paid. That town could not have been called upon, on demand made, to have made an examination of all the proceedings of the justice to see they were correct, before making payment to the Reform School. The superintendent, having the mittimus of the magistrate, makes a demand, and it must be paid. Nor can any town, under like circumstances, be called upon to make an examination of all the preliminary proceedings, before complying with the requisition of the superintendent of the Reform School in such a case as this.</p> <p>It is, therefore, contended, that no illegality in the preliminary proceedings can release Fairfield from the payment of the amount claimed; that Lewiston, having paid the expense upon demand of the legal authority, and Fairfield, having admitted the settlement of the person for whom the expense accrued, is estopped from going into an examination of all the proceedings in the first instance.</p> <p>Thompson, having been committed, the selectmen of Lewiston notified, Lewiston can do nothing but pay.</p> <p>But, the statute cited, authorizes a sentence to the Reform School. The alternative punishment, if unauthorized, does not vitiate the sentence.</p> <p>Thompson was never confined in jail, and that part of the sentence is surplusage, and can be of no consequence, inasmuch as it was never carried into effect.</p> <p>It is not contended that there is any statute or by-law of Lewiston, authorizing confinement in the county jail or the Reform School for truancy, but the statute of 1858, c. 37, Public Laws, especially authorizes a commitment to the Reform School for that offence.</p> <p>The statute expressly says, (§21,) — “When any boy between the ages of eleven and sixteen years is convicted of larceny, when the property stolen does not exceed one dollar in value, of assault and battery, malicious mischief, malicious trespass, Sabbath breaking, riotous conduct, disturbing the peace, embezzlement, cheating by false pretences, vagrancy, truancy, or of being a common runaway, drunkard, pilferer, night-walker, or of having violated any police or municipal regulation of a town punishable in the county jail or house of correction, the Court or justice may sentence, &c. Now “ or” is a disjunctive conjunction, and it is not intended by the language above quoted, to say that “truancy” or “vagrancy” are violations of the police or municipal regulations of the town, which are to be punished in the manner set forth, but they are distinct offences which are to be punished, as well as any violation of the police or municipal regulations punishable in the county jail or house of correction. They are enumerated as distinct offences. If this were not so, and it was intended by this Act to punish only violations of the police or municipal regulations of a city or town punishable in the county jail or house of correction, and to enumerate the whole list of offences as such violations of police or municipal regulations, the statute would have read “ or of having violated any {other) police or municipal regulation,” &o. Hence, it seems, that there is no necessity for a by-law of the town to justify the magistrate in taking jurisdiction of this offence.</p> <p>The complaint purports to be based upon the Statute ; and not upon any by-law of Lewiston.</p> <p>It is a well settled rule of criminal pleading that a complaint for breach of a by-law of a town must set forth the by-law.</p> <p>But there is no statute, which makes being “ an idle, ungovernable boy, and a habitual truant,” an offence.</p> <p>The mittimus, therefore, confers no authority whatever, for the superintendent of the Reform School to receive and detain young Thompson in custody.</p> <p>There was no legal claim against the plaintiffs; they paid of their own motion, and not for the support of a person “ committed for some crime,” as the statute requires in order to make them liable.</p> <p>By such a payment, they could create no liability on the part of the defendants.</p>

On Exceptions to the ruling of Mat, J., and on motion to set aside the verdict. This was an action of trespass- quare clausum fregit. The declaration was in the usual form. The specifications of defence denied all the material allegations in the declaration, except the plaintiff’s title to the locus in quo, which was expressly admitted.

On Exceptions to the rulings and instructions of Goodenow, J. This was an action of assumpsit, to recover “ balance of account” due from defendant to plaintiffs for meats and groceries, amounting to $81,00. No account was annexed to the writ, and, at the return term, plaintiff had leave to file a bill of particulars, amounting to §81,62.

On Report by May, J. Writ op Entry. A question was made in relation to an amendment of the writ, but it became immaterial, in the disposition of the case. The defendant pleaded the general issue, which was joined. The specifications of defence and brief statement were, — ■ “ That the title and possession of the demanded premises are in him, the said defendant, and not in him, the plaintiff.

Reported by Goodenow, J. Writ op Entry, to recover possession of a parcel of land in tbe town of Hebron. The demandant claims under a levy, made on April 18, 1857, of an execution in Ms favor against Samuel T. Record. He also put into the case an office copy of a deed from the defendant to said Samuel T. Record, which deed is of the date of August 30 th, 1849.

On an agreed statement op pacts. , This was an action of trespass, against the defendant, who was sheriff of the county of Oxford, for the act of his deputy, in attaching and selling certain personal property on an execution against one Barker, the same having been attached, on the original writ, on the 9th day of October, 1858.

<p>Defendant d faulted, — to be heard in the assessment of damages at Nisi Prius.</p>

<p>In equity, all the parties in interest must be made parties to the suit; and, in a suit seeking to reform a deed, the holder of an equity of redemption, not barred by the lapse of time, under a mortgage not foreclosed, is a party in interest, and must be notified.</p> <p>Likewise, the grantor in the deed sought to be reformed.</p> <p>A purchaser of real estate, having notice of a prior unregistered deed, or other claim thereto, may, nevertheless, convey a perfect title to a tona fide purchaser having no hotice of such claim.</p> <p>So, also, a purchaser without notice of a prior equitable claim, or right, may convey a perfect title to one who had notice thereof. After an interest in real estate has passed to an innocent purchaser, and is discharged of its latent equities, it is thenceforth unimportant whether subsequent grantees or assignees had or had not notice of the prior equitable claims.</p> <p>A mortgage is pro tanto a purchase, and the tona fide mortgagee or assignee of the mortgage, without notice of a prior claim, is entitled to the same protection as a tona fide grantee without notice.</p>

On an agreed statement op pacts. This was an action of debt on a bond given by William Stanley, as collector of taxes for the town of Porter for the year 1854, with John Stanley, Washington Colcord and Hazen W. Harriman as sureties. The defendants Colcord and Harriman pleaded the general issue, with a brief statement setting forth payment and settlement of the accounts of Stanley for that year.

<p>The owner of goods cannot maintain an action of replevin against a person who is lawfully in possession of them, without a previous demand and refusal, or acts on the part of the possessor amounting to a conversion.</p> <p>There is no conversion for which replevin will lie, unless there he a repudiation by the possessor of the right of the owner, or the exercise of a dominion inconsistent therewith.</p> <p>A mortgaged a pair of oxen to B to -secure the payment of a note. After the note was due, B requested payment. A did not pay, but took the oxen into the woods for lumbering. B, without demanding the oxen, brought an action of replevin: — Keld, that the action could not he maintained.</p>

This was an action of the case to recover the value of a house and some lumber situate on the route of the defendants’ road, alleged to have been destroyed by fire, “ communicated by a locomotive engine of the said railroad corporation then and there running over said railroad.” At the first term, August, 1859, the counsel for the defendants filed a general demurrer.

Writ op entry. . On an agreed statement op pacts. The demandant claimed title as follows: — Bailey Curtis, by deed dated May 27, 1850, conveyed the premises to Bailey Curtis, jr., and Bailey Curtis, jr., by deed dated March 15, 1858, conveyed them to the demandant. „ The following is the title of the tenant: — Bailey Curtis sued out a writ of attachment against Bailey Curtis, jr., December 13, 1852, by virtue of which the premises were attached, judgment was rendered in the…

<p>On Report of the case by Goodenow, J.</p> <p>This in an action of the case, by a judgment creditor of the Buckfield Branch Railroad Company, against the defendant as a stockholder, to recover a sum equal to the amount of his stock in said corporation. The writ was dated January 1, 1852. The defendant pleaded the general issue, with a brief statement, of which the .following specifications only are important to the case:—</p> <p>“ 3. That this suit was not commenced within six months after the aforesaid judgment against said corporation was recovered.</p> <p>“ 4. That no notice was ever given the defendant of the plaintiff’s intention to commence this suit against him.</p> <p>“ 6. That, at the District Court, held at Portland, within and for the county of Cumberland, on the first Tuesday of March, A. D., 1851, one Enoch L. Cummings, Esq., of said Portland, recovered two judgments against said railroad company; one for the sum of $1896,80, debt or damage, and costs of suit taxed at $5,53, and the other for the sum of $2443,96, debt or damage, and costs of suit taxed at $5,53; and that executions issued thereon, and were put into the hands of Jesse Drew, a Deputy Sheriff of the county of Oxford, for collection; and that, afterwards, on the fourth day of April, 1851, he gave the notices to, and made the demands upon, the defendant in this suit, as required by the nineteenth section of chapter 76 of the Revised Statutes .of 1841, the said Drew having first ascertained and certified upon said executions that he could not find corporate property or estate wherewith to satisfy said judgments.</p> <p>“ 7. That, at the Supreme Judicial Court, held at Portland, within and for the county of Cumberland, on the second Tuesday of November, 1851, one Charles G-. Came, of said Portland, recovered judgment against said railroad company for the sum of $893,76, debt or damage, and costs of suit taxed at $4,70; and that an execution was duly issued thereon, and put into the hands of said Jesse Drew, Deputy as aforesaid, for collection; and the said Drew having first ascertained, and certified upon said execution, that he could not find corporate property or estate wherewith to satisfy the same, made the demand upon, and gave the notice to said Cole, as required by the 19th section, chapter 76, of the Revised Statutes of 1841; and, afterwards, on the 10th day of December, 1851, commenced a suit against said Cole, to recover of him the amount of said judgment, which suit was pending in this Court in this county, at the time this suit was commenced, and at the time of the alleged demand and notice to the defendant.</p> <p>“ 8. That at the Supreme Judicial Court, held at Portland, within and for the county of Cumberland, on the third Tuesday of April, 1851, two judgments were recovered against said railroad company, one in favor of the Canal Bank for the sum of $3410,68, debt or damage, and costs of suit taxed at $4,04; the other in favor of the Casco Bank for the sum of $2099, debt or damage, and costs of suit taxed at $4,04; upon both of which executions were duly issued and put into the hands of said Jesse Drew, Deputy Sheriff as aforesaid, for collection, and that the said Drew, having first ascertained and certified upon said execution that he could not find corporate property or estate wherewith to satisfy the same, and, on the 18th of April, 1851, made the demand upon, and gave the notice to said Cole, required by law to fix and establish the liability of said Cole to pay the judgments aforesaid, to the amount of stock held by him in said railroad company.</p> <p>“ And the said Cole says, that he was unable to show to said officer or to either of the aforenamed creditors, and did not show to either of them, corporate property or estate wherewith to satisfy said executions, or any part thereof; by reason of all which, he became liable, and an action accrued to the aforesaid creditors to demand and recover of him a sum equal to the amount of the stock owned by him in said railroad company, to wit, the sum of twenty hundred dollars, all of which was prior to the aforesaid demand and notice of the plaintiff in this suit.</p> <p>.“And the defendant has since paid the amount of his said liability to said creditors.</p> <p>“ By reason of which the plaintiff’s action is barred, and, at the date of his writ, he had no cause of action against the defendant.”</p> <p>The judgment was recovered May 8th, 1851, being the third day of the term. An alias execution was issued on said judgment, November 20, 1851, and placed in the hands of Jesse Drew, a Deputy Sheriff, for service. The said Drew made several returns on the back of said execution, which are in the words following, to wit:—</p> <p>“ Oxford ss., December 4, 1851. — By virtue of the within execution, having made diligent search for corporate property or estate belonging to the within named Buckfield Branch Railroad Company, wherewith to satisfy the within execution, I have first ascertained, and hereby certify, that I cannot find corporate property or estate belonging to the said corporation. “Jesse Drew, Deputy Sheriff.”</p> <p>“Oxford, ss., December 9, 1851. — By virtue of the within execution, I have this day notified the following stockholders in said corporation, (meaning the within named Buckfield Branch Railroad Company,) to wit, William Bridgham, Addison G. Cole, by giving to each of them in hand a written notice of the amount of the within execution, and that I, on the eighteenth day of the above named month, notified the following person, stockholder in the within named corporation, to wit, James S. Parlin, by giving him in hand a written notice of the amount of the debt, to wit, of the amount of the within execution; and I have also, on the 20th of the above named month, notified the following person, stockholder in the within named corporation, to wit, Henry Decoster, by giving him in hand a written notice of the amount of the debt, to wit, of the amount of the within execution, and of my intention, after forty-eight hours, to levy the within execution upon the several individual property, rights, credits and estates of each and all the above named stockholders, to the amount of stock owned by them severally in said corporation, unless they should, on demand and notice aforesaid, disclose and show to the execution creditor within named, or to me, as an officer, attachable corporate property or estate belonging to said corporation, sufficient to satisfy the within execution and all fees. “ Jesse Drew, Deputy Sheriff.”</p> <p>“Oxford, ss., December 31,1851. — And now, forty-eight hours from and after the time of giving notices as aforesaid, to each of said stockholders above named, has expired, and they have each and all neglected to disclose and show to me, as an officer, or to the within named execution creditor, attachable corporate property or estate belonging to the said corporation, sufficient to satisfy the within execution and all fees. “ Jesse Drew, Deputy Sheriff"</p> <p>There was no other return on the back of said execution.</p> <p>At the present term the plaintiff moved to amend, and was permitted to file a new count. The defendant objected to the allowance of the amendment, because, as he claimed, it placed the action on R. S., 1841, c. 76, § 30, instead of § § 18 and 20, according to the original count in the writ, alleging that the action as stated in the original count was barred by limitation of time, and that the new count introduced a new cause of action which might not be barred. The presiding Judge allowed the amendment, subject to the opinion of the full Court; and it was agreed that the case should be reported, in order to settle as many questions of law arising in it as practicable, anterior to any trial before the jury.</p> <p>The defendant contends that the returns on the back of said execution, made by said Drew, do not furnish sufficient evidence that the said Drew ever gave the preliminary notice required by the statute, to warrant the plaintiff in commencing his action, and that the action was barred by lapse of time before the commencement of the suit. If, in the opinion of the full Court, the action is barred by lapse of time, or, if the plaintiff cannot be allowed to show demand and notice by an amendment of the officer’s return, or otherwise; or, if he cannot recover without showing demand and notice, or by any authorized amendment, then he is to become nonsuit. Otherwise, the action is to stand for trial upon both counts, if the amendment was rightly allowed. ' But if the second count was improperly admitted by way of amendment, then that count is to be struck out, and the action to stand for trial on the first count. In order to settle as many questions of law as possible arising in said case, the parties agreed that the full Court should take into consideration the specifications in defendant’s brief statement, numbered 3, 4, 6, 7 and 8, and determine whether, if the facts alleged in those particulars of the brief statement, or in any one of them, are fully proved, it will constitute a good defence to said action, in whole or in part.</p> <p>1. The action is not barred by limitation. It is founded on § §18, 19 and 20 of c. 76, R. S., of 1841. The only limit as to time of the liability of stockholders is found in §18, and is confined to cases where they have transferred their stock.</p> <p>2. The amendment was properly allowed. The amended count claims precisely what was intended to be claimed in the original count. It has no connection with the question of limitation.</p> <p>3. The plaintiff has taken the necessary preliminary steps to enable him to maintain this suit against the defendant as a stockholder of the delinquent corporation. The returns made by the officer are sufficient to show the certificate required by § 18, and the demand and notice to the stockholder prescribed in § § 19 and 20. No other notice was required before commencing this suit.</p> <p>4. The plaintiff is not estopped to bring his action by any thing alleged in the defendant’s specifications 6, 7 and 8. The creditor first moving according to law may acquire a priority of right, by first fixing the liability of the stockholder, as held in Cole v. Butler, 43 Maine, 401. But this cannot operate as a bar to subsequent suits by other, creditors. The first creditor’s suit may fail, or he may recover a less sum than the stockholder is liable for, or may abandon his claim on the stockholder. It is not enough to show that other creditors have prior claims, but the defendant must show that his liability to them has been legally established, and that he has paid the amount for which he is liable. A mere liability to pay, is no payment and no bar. Payment, even, is not necessarily a bar to the commencement of the suit, though it may be a defence at the trial.</p> <p>5. The repealing Act of 1857, page 752, saves this case from the effect of the repeal.</p> <p>1. The action was barred by limitation before it was commenced. There has been no judicial determination as to the meaning of § 18, c. 76, R. S., of 1841; but the Legislature, in statute of 1844, c. 109, § § 3 and 4, recognize the limitation therein contained as applying to all actions against members of delinquent corporations under the provisions of c. 76. An Act amounting to a legislative declaration of the meaning of a former statute, will govern the construction to be given to it. TJsiited States v. Freeman, 3 Howard, 565; Hunt v. Hunt, 37 Maine, 333.</p> <p>The personal liability of members of a corporation, for the corporate debts, depends solely on provisions of positive law, which are to be construed strictly. Gray v. Coffin, 9 Cush., 192. , -</p> <p>2. The amended count, allowed by the presiding Judge, cannot avail the plaintiff. It was so framed as to charge the defendant on § 30 of c. 76; but § 30, when this action was commenced, did not subject a stockholder to any action whatever. The liability of a stockholder, under § 30 was subject to the same conditions and limitations as under § 18.</p> <p>3. But the amendment was erroneously allowed, especially if, by admitting the amendment, the plaintiff can avoid the statute limitation. The amended count, by placing the action on § 30, states an entirely different case from the one originally stated." It was not offered until more than six years after the commencement of the suit, and hence was barred by the general statute.</p> <p>4. The preliminary steps necessary to maintain this suit are not shown, nor even alleged to have been taken. The statutes authorize the officer, having execution against a corporation, after forty-eight hours notice to a stockholder, and a demand for him to show corporate property to satisfy the debt, in default thereof, to levy on the individual property of the stockholder. In this case, the officer is to make the demand and give the notice.</p> <p>But the “ creditor, after demand and notice, as mentioned in the preceding section, may have an action on the case against any such stockholder, to recover of him individually.” In this case, the creditor must himself sue; so he must make the demand and give the notice. In the former case, the officer is to give notice of his intention to make the levy; in the latter, the creditor must notify the stockholder of his intention to commence an action. At all events, there must be a notice of the intention of the creditor to commence an action, if not to be given by himself. There is no evidence or allegation that any such notice was ever given.</p> <p>5. The judgments mentioned in the specifications 6, 7 and 8, were recovered earlier than that in favor of Ingalls against the corporation. The creditors thereby ‘“acquired a priority of right to recover against the stockholder to the amount of his stock, with which no other creditor, subsequently moving, can interfere.” Cole v. Butler, 43 Maine, 401. It was not necessary to commence an action in order to acquire a priority of right. By the preliminary steps, the liability of the stockholder became fixed. He had a perfect right to pay these creditors; and, if he did pay them, as he alleges, to the full amount of his stock, the present action is barred.</p> <p>6. It is contended further, that the action is barred, if he did not pay them. The liability of the- stockholder to the other creditors having been fixed, the present plaintiff had no right to demand of him to show corporate property to satisfy his debt. A right to demand, implies an obligation to comply with it. Similar demands had been made on him already for an amount equal to five times the amount of his stock. If he was to be harassed by such demands five or six times, or even twice, on the same amount of stock, he might be harassed and sued a hundred times in the same way. The inference is, that when one or more creditors, having judgments equal to the whole amount of the defendant’s stock, had taken the preliminary steps to establish the defendant’s liability, no other creditor could take those steps, until the liability first established should be discharged, paid or removed.</p> <p>7. This case is barred by the repealing Act of 1857, page 752, on the principles decided in Coffin v. Rich, 45 Maine, 507.</p>

<p>Assumpsit for balance of account annexed to the writ, with the general money counts. The account annexed was as follows:—</p> <p>Ham & Nevens to Bisbee, Allen & Co., Dr. 1852, Jan. 1. To money received of Harris & Cobnrn on settlement for Bisbee, Allen & Co., $335,43 To interest, 37,66</p> <p>373,09 1855, Feb’y- By cash as per receipt given, 100,00</p> <p>$273,09</p> <p>The plaintiffs were manufacturers of powder. The defendants, in 1848, were railroad contractors. Gould & Co., subcontractors, in August, 1848, gave the defendants an order on the plaintiffs for $305, which was accepted. Gould & Co., becoming embarrassed, assigned their contract to Harris & Coburn. A law suit resulted between the defendants and Harris & Coburn, and the defendants paid Harris. & Coburn between $400 and $500 to settle it.</p> <p>In February, 1855, the plaintiffs and defendants had an interview, and, on the defendants representing their losses, the plaintiffs consented to compromise, and the defendants paid them $100, and took a receipt from the plaintiffs, “ in full for powder delivered to Sireno Gould & Co., and in full of all demands against said Ham & Nevens to this date.”</p> <p>In July, 1857, the plaintiffs commenced an action of assumpsit on the foregoing account. At August term, 1858, the defendants filed a special plea of accord and satisfaction. The plaintiffs, in their replication, pleaded that their action “ ought not to be barred by reason of any thing in the plea of said defendants alleged, because, they say, that they were deceived and defrauded by the fraudulent representations and suppression of material facts by these defendants,” &c.</p> <p>To this replication, the defendants' demurred, because the plaintiffs had not therein alleged or shown that the said contract of accord and- satisfaction had ever been abrogated or rescinded, or the $100 paid, restored or offered to be restored, &c.</p> <p>Mat, J., presiding, adjudged the replication to be bad, and sustained the demurrer; and the plaintiffs filed exceptions.</p> <p>to the point that a mere receipt given by a creditor for a part of his debt as in full for the debt, is not a good defence by way of accord and satisfaction, cited Warren v. Skinner, 20 Conn., 559; Daniels t. Hatch, 1 N. J., 391; Adams v. Tolling, 4 Mod., 88; Smith v. Barthole, 1 Met., 276 ; Worthington v. Nigley, 3 Bing. N. C., 454; Hinckley v. Arey, 27 Maine, 362; White v. Jordan, 27 Maine, 370; Bailey v. Day, 26 -Maine, 88.</p> <p>In actions of tort, it is well settled that the parties must be put in statu quo before action brought, but not in assumpsit. Vedder v. Vedder, 1 Denio, 257; Foster v. Trull, 12 Johns., 456; 2 Parsons on Contracts, 129.</p> <p>No injury can result to the defendants by the maintenance of this suit. All equities are open to them. They have paid a part of the debt, and, if they ought to pay no more, they may show it by way of defence. Pennell’s case, 5 Rep., 117; Cumber v. Ware, Strange, 425; Thomas v. Hathorn, 2 B. & Car., 477; Fitch v. Sutton, 5 East, 230; Blanchard v. Noyes, 3 N. H., 518; Wheeler v. Wheeler, 11 Verm., 60; Bailey v. Day, 26 Maine, 88; Jenness v. Lane, 26 Maine, 475.</p> <p>Fraud avoids every contract, and annuls every transaction. 2 Parsons on Contracts, 277; Burton v. Stewart, 3 Wend., 236; Thayer v. Turner, 8 Met., 550; Kimball v. Cunningham, 4 Mass., 502; Perley v. Balch, 23 Pick., 283; Stearns v. Austin, 1 Met., 557; Martin v. Roberts, 5 Cush., 126.</p> <p>The Act of June 3, 1851, does not conflict with the views here taken. It contemplated an honest and manly compromise, free from and untainted by fraud.</p> <p>The doctrine of rescission of contracts does not apply to a case of this kind. The plaintiff’s right to recover rests on the question of fraud. That being established, the compromise becomes void, and the plaintiff’s whole debt revives. Why should he be required to refund what was honestly his due, and which, so far as he is concerned, he has honestly received, in order to recover that of which he has been defrauded ? Such a rule would be offering a premium on fraud. See Cushing v. Wyman, 44 Maine, 139.</p> <p>argued that when a claim has once been extinguished by accord and satisfaction, no action can be maintained upon it while the contract of settlement remains unrescinded. Two contracts, one of which is by its very terms to extinguish the other, cannot both be in force at the same time.</p> <p>To rescind the contract, whatever has been received by virtue of it must be restored, and the parties placed in statu quo. When this cannot be done, no rescission can be had ; and, if a fraud has been committed, the injured party must seek his remedy by an action of deceit.</p> <p>Contracts tinctured with fraud are not absolutely void, but only voidable at the option of the party defrauded. He may bring an action of tort for fraud; or, having first rescinded the contract, he may bring a suit on the original cause of action. The plaintiffs have done neither; but, retaining the $100, paid at the settlement, they bring their suit on the original debt as if there had been no settlement. This the law will not allow them to do; and hence this action cannot be maintained.</p> <p>The counsel cited the following authorities: — Junlcins v. Simpson, 14 Maine, 364; Ayers v. Hewett, 19 Maine, 281; Cushman v. Marshall, 21 Maine, 122; Tisdale v. Buckmore, 33 Maine, 461; Cushing v. Wyman, 38 Maine, 589; Emerson v. McNamara, 41 Maine, 565; Potter v. Tiicomb, 22 Maine, 300; Statute, 1851, c. 213 and R. S. of 1857, c. 82, § 44, as construed in Weymouth v. Babcock, 42 Maine, 42; Hogan v. Weyer, 5 Hill, 389 ; Herrin v. Libbcy, 36 Maine, 350.</p> <p>•The plaintiffs’ replication is bad in substance, in alleging that they were deceived by the fraudulent representations and suppressions of material facts by the defendants, but omitting to specify what were the fraudulent' representations and the facts alleged to have been suppressed, as required by the rules of pleading.</p>

Writ oe Error. On Report by Appleton, J. Mary Marsh brought an action against Asa Leach, December 6,1854; the writ was returned as served by leaving a summons “ at the last and usual place of abode” of the defendant, and real estate attached; and, at January term, 1855, the defendant not appearing, a default was entered, and judgment was given for the plaintiff for $344,26, and costs of suit. Execution was issued, and extended by levy on the real estate of Leach.

Assumpsit. The alleged trustee appeared and disclosed at the first term, denying that he had, at the time of the service of the plaintiff’s writ, any goods, effects or credits of the defendant in his… Held: but to all such funds as subsequently came into his hands before final disclosure, belonging to the defendant. Boston Bank v. Minot, 3 Met., 507; Holbrook v. Waters, 19 Pick., 354; Wheeler v. Bowen, 20 Pick., 563; Kimball v. Woodrnan, 19 Maine, 203.

On an agreed statement. This is an action against the defendants, as common carriers, upon the following contract in writing, made on behalf of the company, “by J. S. Works, their agent and station master, at their depot in Biddeford:— “ Office of P. S. and P. R. R., Biddeford, Me., Aug. 27,1855. “ Received in apparent good order from Mrs. Sarah A. Perkins, 8 Boxes, 4 Chests, 11 Pkg.

<p>The fact that one of the jurors, who rendered a verdict, was disqualified by relationship to the prevailing party, according to R. S., 1857, c. 1, § 4, spec. 22, is sufficient reason for setting aside the verdict, when it appears that the adverse party was ignorant of the relationship, at and before the trial.</p>

This was an action of trespass, for cutting and carrying away certain pine trees.