Volume 48 — Maine Reports

On agreed statement op pacts. This was an action of Assumpsit, upon two promissory notes signed by Bugbee, Hidden & Co., the principal defendants, payable to their own order and by them indorsed. One is dated Boston, August 27th, 1856, payable in eight months for $586,67, value received of Ball & Moore. The second is dated Boston, Sept 3d, 1856, for $1386,88, payable in eight months, at any bank in Boston, value received of Day, Erost & Kimball.

On the second day of the term, at which this action was entered, (September term, 1856,) the defendant filed a motion to dismiss the same. At a subsequent term, at Nisi Prius, (April term, 1859,) a hearing was had before Goodenow., J., who sustained the motion and ordered the case to be dismissed. The plaintiff excepted.' The material part of the motion is recited in the opinion of the Court.

On Exceptions to the ruling of Goodenow, J. This was an action of trespass to recover the value of a stock of goods, attached by Rufus M. Lord, a deputy of the defendant, as Sheriff of this county, by virtue of a writ against Jacob L. Chase, who had them in possession. The plaintiff claimed the goods under a mortgage bill of sale given him by Chase, duly recorded prior to the attachment.

<p>The case of Coffin y. Rich, 45 Maine, 507, examined and approved.</p> <p>Where a case is submitted to the full Court on report of the case, a suggestion in argument, of an amendment of the writ, will not be considered; no motion to amend having been made at Nisi Prim. ‘</p>

This was an action brought upon a promissory note, purporting to have been signed by the female defendant, before her marriage, and payable to the plaintiff’s testator. At Nisi Prim, the counsel for the defendants offered them as witnesses, to prove that the signature to the note was not genuine. G-oodenow, J., ruled that neither of the defendants was a competent witness, and both were excluded. The defendants excepted to the ruling of the Court, after verdict against them.

On statement of facts. This was an action of debt on a poor debtor’s bond, given by Robert Gr. Bowden, on Dec. 9th, 1857, to be released from Ms arrest on execution. One of the alternative conditions of the bond is that he will take the oath prescribed in § 28th, c. 148 of the R. S. From the statement of the case, it appears that, on the 13th day of May, 1858, a citation was duly served upon said Randall, issued by a magistrate, upon the application of said Robert Gt. Bowden.

On Exceptions, by the principal defendant, Asa Dalton, to the ruling and adjudication of Kent, J., charging the trustees. From the disclosure of one of the trustees, it appears that the principal defendant left with them, for collection, a note against Hobson § al., payable to him, upon which a suit was brought in his name, and the note collected; that the amount paid was in their hands at the time of the service of the writ upon them in this action.

Exceptions from the rulings of Kent, J. This is an action of Trespass, brought against the defendant, for the official act of one of his deputies, whilst he was sheriff of the county of York, in the taking of a horse, alleged to be the property of the plaintiff. The writ is of the date of March 11, 1858.

This was an action of trespass, for cutting and carrying away trees from certain described premises in Wells. The defendant pleaded the general issue, with a brief statement, denying the ownership of the plaintiff, and claiming to have committed the acts complained of by license of the owners. By a deed, dated June 14, 1794, Joseph Hobbs conveyed to Thomas Hobbs, the father of the plaintiff, the premises where the alleged trespass was committed.

<p>Bill in equity.</p> <p>The case is stated in the opinion.</p>

On Exceptions to the ruling of Goodenow, J. Assumpsit upon a promissory note given by defendant to plaintiff; It appeared in evidence that, at the time the note was given, there was a dispute between the parties as-to the proportion of the earnings of a vessel the. defendant was entitled to receive. The defendant claimed three-fifths while the plaintiff said he was entitled only to two-fifths.

Assumpsit, for labor done by the plaintiff’s intestate. At the trial, May term, 1861, the wife of the defendant was called as a witness by his counsel, to prove a special contract between the plaintiff’s intestate and the defendant, under which the labor was performed. The plaintiff objected to the admission of the witness, and Goodenow, J., ruled that she was not a competent witness and excluded her testimony.

On Exceptions to the ruling of Goodenow, J. Trespass, for breaking and entering the plaintiff’s close and hauling away gravel and stones.

On facts agreed. Debt on a poor debtor’s bond. The principal was arrested on an execution in favor of the plaintiffs, and, upon giving the bond in suit, was released from arrest. The debtor, thereupon, duly cited the creditors before two justices of the peace and of the quorum, at two several times, and submitted himself to examination, and, each time, the justices refused to administer the oath to him.

<p>On Report.</p> <p>Assumpsit on a promissory note given to the plaintiffs.</p> <p>The facts are stated in the opinion.</p> <p>1. The plaintiffs have not given the notice required in the ninth section of their charter. The fair construction is, that there shall be actual notice before the suit can be brought. The notice proved was given in a country paper, and does not state the amount claimed, nor. the per centage, nor anything from which the sum due could be computed.</p> <p>2. No demand was made prior to the commencement of the suit.</p> <p>. A demand,.thirty days before suit brought, is a condition precedent to the maintenance of the action. R. S. of 1840, c. 79, § 29 j R. S. of 1857, c. 49, § 30.</p> <p>The plaintiffs' charter (sec. 17) makes the company subject to. the laws of the State in relation to corporations.</p> <p>Section nine of their charter, in connection with article four of their by-laws, provides for notice of their assessments. But the general law requires a demand also. Both must be proved. They are not incompatible. ' If they are, the charter being expressly made subject to the general law, the .former must yield to the latter.</p>

Exceptions from the ruling of Appleton, J. This was an ‘action of debt, upon a bond given by a debtor, arrested on execution, for his release. The bond is dated May 30, 1859. On the 27th day of June following, Austin Edgerly, who then held a commission as a justice of the peace in and for the county of York, issued a citation to the creditor, upon the application made to him by the debtor.

Exceptions from the ruling of Goodenow, J. The defendant, Butler, in his capacity of guardian of Emily M. Williams, was summoned as the trustee of Henry R. Williams, in an action brought by the plaintiff against said Williams. At the first term the supposed trustee made a disclosure, and, thereupon, was charged, as trustee, in his said capacity of guardian.

On Report of the evidence by Rice, J. Trespass quare clausum,, to recover damages for breaking and entering the plaintiff’s close in Kennebunkport, called Vaughan’s Island, and carrying away seaweed, &c. Plea the general issue, with a brief statement setting forth various grounds of defence, which will be found enumerated in the opinion of the Court.

Debt on a poor debtor’s bond. Bragdon, the principal defendant, having been arrested on execution, gave a poor debtor’s bond, and subsequently applied to a justice of the peace for a citation to Smith, his creditor, the present plaintiff, to attend and hear a disclosure of his business concerns. In the application, it was stated that Smith was out of the State, and that S. W. Luques of Biddeford was his attorney of record.

Assumpsit. Pacts reported by Appleton, J. A. P. Hamilton and A. P. House, June 19, 1855, deposited witb the defendant $100 each, to be paid to the winner of a horse-race; and on the same day, Hamilton drew an order in favor of the plaintiff for the $100 he deposited, and it is proved that it was the plaintiff’s money. After the race had been run, the plaintiff claimed that he had won ; House denied it, and forbade the defendant paying the money to the plaintiff.

Writ of Entry. Ou an agreed statement of facts. The demandant claims title as follows: — The premises were owned and occupied by Seth Storer for a series of years prior to and at the time of his death; they were set off to Olive, wife of John Spring, and daughter of said Storer, in the partition of his estate amongst his heirs; and Olive Spring conveyed the premises by quitclaim to the demandant, Dec. 14, 1854, acknowledged and recorded Aug. 19, 1857.

On Demurrer. This was an action of the case. The declaration alleged, in substance, that the defendants were the owners of a cotton mill in Biddeford, to which they had built and maintained a bridge and walk for persons working in the mill to pass and repass over when going to and returning from said mill; that, on the twenty-fourth day of September, 1859, the plaintiff was, and for a long time had been, in the defendants’ employment, and, in such employment, was required to…

<p>This was an action of personal replevin.</p> <p>It appeared that the plaintiff, having been tried on a complaint for adultery, before the Municipal Court for the city of Biddeford, that Court ordered him to recognize in the sum of $500 for his appearance before the proper tribunal for trial, which he refusing to do, a mittimus was issued for him to be committed to await his trial. The defendant, being Marshal of the city, the mittimus was delivered to him, and, in pursuance of its precept, he committed the plaintiff to jail.</p> <p>On trial of this action, the defendant justified by virtue of his said office, and the mittimus before named. The case was tried before the Judge, Appleton, J., reserving the right to except. The Judge ruled that the justification was insufficient, and gave judgment for the plaintiff. The defendant excepted.</p> <p>1. Every thing that it is necessary should appear in the mittimus appears there.</p> <p>< The Municipal Court of Biddeford is made, by the Act creating it, “ a Court of record with a seal,” and all the presump, tions of law favorable to the proceedings of Courts of record apply to it. It had jurisdiction of the offence charged, and of the person of Nason, to examine and to hold to bail, and this is what the Court did.</p> <p>It is objected that it does not appear, by the mittimus, that the Court found that an offence had been committed, and that there was probable cause to charge Nason with it. But the mittimus declares that he was “ convicted” on the complaint, &c., which is equivalent to stating, that all was proved that, was necessary to be proved. The form was the same as used in cases of conviction of offences within the jurisdiction of the Court, but may be upheld as containing all that is necessary in this case.</p> <p>The mittimus is not the judgment or record of the determination of the case by the Court, and need not contain all the particulars of the action of the Court, any more than an execution is required to contain all the particulars of the judgment or record in a civil case.</p> <p>When a party is arrested on a warrant, and the examination, before being completed, is adjourned to another time, the prisoner is usually remanded into the custody of the officer by verbal order, and without any mittimus. This case is analogous.</p> <p>It is enough for an officer, if the Court has jurisdiction of the offence and of the person, and if his precept is in proper form. It is not for him to inquire into the propriety or regularity of the previous action of the Court.</p> <p>2. These objections are not open to the plaintiff in this process. By R. S., c. 101, a party is entitled to this process, unless, amongst other things, he is restrained by “ force of a lawful writ, warrant or other process, civil or criminal, issued by a Court of competent authority.” It was never intended that the validity of the original process should be tested on the writ of replevin. If it were so, every person accused of crime, both before and after conviction, and even convicts in the State prison, might resort to this process to procure a respite from restraint, whilst the legality of the restraint was litigated. A person in custody, and in danger of conviction, might resort to it to be set at liberty long enough to take leg bail.</p> <p>The amount of bond is to be determined by the officer who serves the writ. If insufficient, where is the remedy ? If on the officer’s official bond, is that sufficient ? It cannot be that the criminal law can be evaded in such a manner.</p> <p>The only safe construction is, that all precepts which a Court is authorized to issue, are excepted under the statute; that, whatever bears the form of a writ, warrant or other process, with the test or seal of the Court, is not subject to revision by such proceedings.</p> <p>The writ of habeas corpus is the proper remedy in cases of improper restraint under color of judicial process. Under that process, the party is held in custody pending the inquiry. If, on inspection, the process, by which he is held, is erroneous on its face, he may be discharged. If the process does not disclose the error, but there is one preceding that process, a writ of error lies. In these modes, all his rights are preserved.</p> <p>Under the general statutes, the amount of bail, and the sufficiency of it when presented, are to be determined by the Court that tries the offence. But, if a party ordered to furnish sureties, can cause himself to be replevied, he transfers the question, both of amount and sufficiency, to the officer serving the .writ of replevin; in fact, withdraws all security from the State, and transfers it to the officer having the mittimus. The State is entitled to the custody of the person, or .to a recognizance for his appearance; but, by this process, may be deprived of both.</p> <p>By the constitution, certain offences are not bailable. But, if the offender may replevy himself, he may evade the constitutional provision, and go at large on such bail as an officer may require of him.</p> <p>The defendant relies wholly upon the warrant of commitment, by virtue of which he claimed to have authority to arrest and detain the plaintiff, to maintain his defence.</p> <p>We say the warrant in this case gave no authority, was null and void; and, therefore, the defence fails.</p> <p>“ A magistrate’s warrant of commitment must show his jurisdiction to issue it.” Gurney v. Tufts, 37 Maine, 130.</p> <p>“ As the jurisdiction of justices of the peace is given and limited by particular statutes only, and nothing can be presumed in favor of such jurisdiction,” the warrant should show that due and legal proceedings had been had to authorize the magistrate to order the commitment. State v. Hartwell, 35 Maine, 129.</p> <p>“ To authorize a magistrate” to order the commitment “ of . an accused person, to answer before a Court of superior jurisdiction for an alleged offence, the punishment of which is beyond the jurisdiction of such magistrate, it is necessary that it should appear that an offence has been committed, and that there is probable cause to believe the prisoner to be guilty.” R. S., c. 133, § 11; State v. Hartwell, 35 Maine, 131.</p> <p>“ Until these facts are made to appear, on an examination before a magistrate, on process issued in due form of law, there is no authority on the part of the magistrate to require bail.” State v. Hartwell, 35 Maine, 131.</p> <p>Where there is no authority to require bail in case of a bailable offence, there can be no authority to commit for want of bail; and it is only when no sufficient bail is offered that the magistrate is authorized to commit to await a trial. R. S., rc. 133, § 11.</p> <p>Now, in this case, the magistrate did not find that the crime of adultery had been committed, either within his jurisdiction or elsewhere. Nor did he find that there was probable cause to believe the prisoner guilty. Therefore it does not appear that the magistrate had authority to require bail, and, a fortiori, is his authority not shown to commit for want of bail.</p> <p>In other words, it may be said that the warrant of commitment, in this case, does not show the jurisdiction of the magistrate to issue it, and it is therefore void.</p>

<p>The divisional line between the Custom-house wharf and Portland pier in the city of Portland established.</p>

On Report from Nisi Prius, Davis, J., presiding. Assumpsit upon three promissory notes signed by D. C.Emery, as treasurer of the York and Cumberland Railroad Company, payable to David Hayes or his order, and indorsed by said Hayes and the defendant and seven other persons. The plaintiff introduced the notes and the notarial protests. The protests were under the hand and seal of the notary.

On Report by Appleton, J. In the first case, (which was debt upon a judgment,) after the evidence was out the defendant submitted to a default, upon the agreement, that if the evidence offered, entitled the plaintiff to recover, the default should stand} otherwise, the case should stand for trial. In the second case, (an action of assumpsit,) the Court were to render a legal judgment upon the pleadings and evidence.

<p>Reported from Nisi Prius, October term, 1855, by How-ARD, J.</p> <p>This was an action of assumpsit, brought on eleven memoranda in writing, called “ coupons,” issued by the defendant corporation, promising to pay various sums of money on each of said coupons, on the first day of May, 1854. . The general issue was pleaded and joined. The plaintiff, after reading the writ and coupons, called Daniel C. Emery, who testified that he signed the coupons declared upon in the writ, as treasurer of the defendant corporation; that these coupons were issued by the said corporation in connection with and attached to certain bonds, upon the same sheets of paper with the bonds, and that they were each and all so issued by the defendant corporation for a valuable consideration, as appeared by the bond book of the defendants, then in Court.</p> <p>The plaintiff then introduced one of the bonds declared upon in this writ, No. 60, for §800, and the parties agreed that this bond should be a sample of, and substituted for, all the other bonds referred to, by numbers upon the several coupons, declared upon, differing from them only in the nuniber appearing on their face, and in the amount of money therein promised to be paid. Said Emery further testified that all the coupons, declared upon in the plaintiff’s writ, were, when issued by the said defendants, attached to bonds as aforesaid.</p> <p>On cross-examination, he testified that the several bonds, to which the coupons declared upon were attached, when first issued by defendants, were issued to different persons, some to E. L. Cummings, and some to others, but none to the plaintiff.</p> <p>The defendants’ counsel then called E. L. Cummings, who, at request of counsel, produced two writs, pending in this* Court, each against the said defendant corporation, one in favor of William C. Lord and the other in favor of the witness, on coupons No. 6 of the bonds from which coupons No. 5, declared on in this suit, were taken, and upon other coupons from different bonds.</p> <p>Defendants’ counsel then asked the witness if he owned all the bonds referred to upon the coupons, in the suit at bar, at the date of the writ. The question was objected to by plaintiff, but admitted, and the witness answered that he did then own them.</p> <p>The plaintiff offered to prove the custom as to the negotiability of these coupons. This testimony was ruled out by the Court. The defendants offered to prove that the bonds, referred to in the coupons in suit, were, when originally issued by the defendant corporation to Cummings and others, as above appears, issued for a less sum than their nominal value. This testimony was excluded by the Court. The case was thereupon taken from the jury, the defendant defaulted, and the case reported by the presiding Judge for the decision of the full Court.</p> <p>The case was argued by</p>

On Report by Davis, J. The facts are sufficiently stated in the opinion of the Court. contended in an elaborate argument, that, upon the evidence offered, the levy was void; that this might be shown in an action at law, and, therefore, that the action may be maintained. presented a full argument controverting the positions of the counsel for plaintiff. As the decision of the Court does not involve the point chiefly argued, the arguments are omitted.

<p>Tinder tbe statute, (B. S., e. 82, § 101,) a plaintiff, wbo has had costs awarded against him in a former action, cannot maintain a-suit upon the same cause ol' action until such costs are paid, although a new and additional cause of action is embraced in the second writ.</p>

On Report. Case referred to the Court. ant and indorsed by one Stevens. The facts found by the Court, as proved by the evidence, and questions arising thereon, are stated in the opinion. Assumpsit upon a promissory note, signed by the defend- I. The note in suit being given in renewal of the old note, if there was a consideration for the latter, there was for the former. The agreement of Stevens to take up the $405 note was a sufficient consideration for the old note.

<p>A writ of scire facias cannot be lawfully issued against one who has been adjudged a trustee, before the return day of the execution against the principal defendant.</p>

<p>A notarial protest which states that the notary “ made notices to all the indorsers,” which he “caused to be left at their dwellinghouses,” is not sufficient evidence of notice to charge the indorsers of a promissory note.</p>

On Report. Action op Covenant for the breach of the covenants in a deed of warranty. The defendant being seized in fee of a parcel of real estate, subject to the right of dower of his mother thereiñ, conveyed by deed of warranty two undivided third parts thereof to the plaintiff.

Bill in Equity. The bill alleges, that Charles Mason, now deceased, September 19, 1854, gave to one Mitchell his promissory note for $435,24, payable in twelve months, for merchandize purchased of said Mitchell; that, before said note became due, Mitchell, for a valuable consideration, indorsed and transferred it to the plaintiff; that the plaintiff recovered judgment against Mason upon the note, and, Nov. 22, 1855, levied his execution upon certain real estate described in…

On Report by Davis, J. The case is stated in the opinion. The bond is collateral to the award, and mere security for its performance; and no action would lie thereon until there should be a breach by the principal obligor; and no breach could occur until he had failed to perform the award within the time allowed him by law. The award provides no time for the payment of the money. In such cases, payment is to be made within a reasonable time.

On Report by Davis, J. Trover for seven casks of ale and a demijohn of whiskey. Held: that the Act of 1855, being repealed, the plaintiff was entitled to recover the full value of the liquors, notwithstanding that at the time of their seizure he intended to sell them in violation of law.

On agreed statement. Appeal from a decree of the Judge of Probate of Cumberland county, approving and allowing the will of James Warren. The will contained a devise to the “ Methodist Episcopal Church and Society, worshipping at the Methodist meeting house in the Gorham Corner village.” The other facts bearing on the questions raised, are stated in the opinion.

<p>On Exceptions to the rulings of Hathaway, J.</p>

On Exceptions to the ruling of Hathaway, J. Assumpsit upon a promissory note, bearing date July 13, 1857, signed by the defendant,… Held: that as the security was void, it was void in the hands of an innocent indorsee for a valuable consideration. 1 Com. on Con., 40, 42; Lowe v. Walker, Douglas, 736; Bowyer v. Bampton, 2 Strange, 1155; Churchill v. Suter, 4 Mass., 161; Chadbourne v. Watts, 10 Mass., 123; see also 1 Story’s Equity, § 345, note 1, where the distinction…

On Exceptions to the rulings of Hathaway, J. Assumpsit for supplies furnished to Ebenezer H. Kneeland and Mary Kneeland. It was admitted that, at the time the supplies were furnished, Ebenezer II. Kneeland had his legal settlement in the defendant town, and the only question was in relation to the settlement of Mary Kneeland. The supplies were furnished in 1851. The plaintiffs proved the due solemnization of a marriage between Ebenezer II.

On Report. Assumpsit to recover the price of a lot of lumber alleged to have been sold and delivered by the plaintiff to the defendants.

<p>On Report by Davis, J.</p> <p>Trover for the conversion of a building. The facts proved by the evidence are stated in the opinion,,</p>

On Exceptions to the rulings of Davis, J. Indictment against the defendant, charging that the respondent, “ on the first day of January, in the year of our Lord one thousand eight hundred and fifty-nine, and on divers other days and times, between the first day of January aforesaid and the day of the finding of this indictment, at Portland aforesaid, in the county of Cumberland aforesaid, unlawfully did keep a drinking house and tippling shop, against the peace of said State…

On Exceptions to the rulings and instructions of Davis, u 7 J. There was a motion in arrest of judgment which was overruled pro forma, by the presiding Judge. Also a motion to set aside the verdict as being against the evidence.

<p>On Motion to set aside the verdict rendered against the respondent on an indictment for maliciously killing a horse.</p>

This case was presented on exceptions, taken by both parties,' to the rulings of Davis, J. This action, which was upon a note of hand, was referred by a rule of Court. The referee made his report in favor of the defendant, at April term, 1859, awarding him his costs of Court, to be taxed by the Court; the report was accepted and judgment ordered thereon by the Court.

On Facts Agreed. Trespass for the mesne profits of two stores and half a store from May 9, 1850, to August, 1852, commenced by the plaintiff as administrator of one Merrill. The writ was dated May 9, 1856. In 1838, the defendant, with the consent of said Merrill, entered into the possession of the two stores, both supposing they were included in a mortgage from Merrill to the defendant.

This was an action of Trespass qvare clausum submitted On Facts Agreed, which are sufficiently stated in the opinion. The language of the appraisers refers to the easement, and not to the fee of the land embraced in the road. The lines are described as running not to the sides of the road, but to the road. This language in a deed, and, therefore, in a levy, carries the fee to the centre of the road. Johnson v. Anderson, 18 Maine, 76.

On Report. Debt on a bond given on arrest on mesne process. The condition of the bond was, “ if the said Palmer shall, within fifteen days after the last day of the term of the Court at which final judgment against him in said suit, notify the creditor,” &c. The other facts in the case are stated in the opinion.

Exceptions from the rulings of Davis, J. From the bill of exceptions, it appears that, in 1858, an action was commenced and entered against these defendants in the name of John G. Myers, by said Smith, in which the defendants seasonably filed a motion calling for the appearance of the plaintiff Myers, and denying the right of Smith to • prosecute the action in the name of said Myers.

On Exceptions. This was a complaint for fiowage of land by the defendants’ mill-dam, founded on c. 72, § 4, of the Revised Statutes. The complaint was served by a constable. At the first term, the complainant, upon leave granted, amended the complaint by reducing the claim for damages to one hundred dollars. At the same term the respondents moved to dismiss the complaint for want of sufficient service. The presiding Judge granted the motion, and the complainant excepted.

On agreed statement. Assumpsit to recover the amount of a legacy alleged to be due from the defendants to the plaintiff’s intestate. Joseph Roberts died Sept. 13, 1835, seized in fee of certain real estate.

Reported by Davis, J. This was an action of Assumpsit on a promissory note, of which the defendants were makers and indorsers, dated September 14th, 1856, (at Boston,) and payable to their own order in eight months. It appears, from the report, that the writ was made from a copy of the note on the afternoon of May 16th, 1857, at half-past three of the clock, after the close of bank hours at Boston.

<p>On Exceptions to the ruling of Davis, J.</p> <p>Writ oe Error to reverse a judgment against Josiah Lovell, the plaintiff’s intestate, at the January term of the Supreme</p> <p>Court for Cumberland county, in the year 1857. The assignment of errors was as follows:—</p> <p>1. That the defendant, in said case, was an inhabitant of the State, at the time of the service^ of the writ; but was absent therefrom, at that time, and did not return, until after the sitting and adjournment of said Court without day, and had no notice of the suit.</p> <p>2. That judgment was rendered on default, without a continuance,. defendant out, as provided in chapter 115, of the Revised Statutes, 1841.</p> <p>3. That no sufficient bond was filed, beforé suing out the execution, in said suit, in twice the amount of damages and costs, for the security of the defendant in said case, according to the provision of .the statute, in such case made and provided, c. 115, § 5, 1841.</p> <p>4. That plaintiff has taken judgment, without deducting or crediting freight, amounting to twenty-four dollars and twenty-seven cents, which would have left a balance due the plaintiff of only eight dollars and eleven cents, instead of thirty-two dollars and eighty-eight cents.</p> <p>5. That plaintiff has charged interest on $32,88, for five years and eight months, when, from his own showing, his writ and account being dated December 25, 1856, and judgment recovered by default, giving only twenty-six days for interest, instead of five years and eight months, which would give only five cents interest, instead of $11,17. And the plaintiff, according to his own showing, in his writ and declaration and account annexed, should have taken judgment for only $8,15, and $2,53, costs, instead of $44,34, debt or damage, and costs taxed at $7,21.</p> <p>6. That the said record and proceedings and the giving of judgment aforesaid, are, in sundry other respects, bad, defective and erroneous.</p> <p>The defendant in error, by proper pleadings, “ denied that a writ of error was the proper remedy of the plaintiff in error, and that any error, in fact or law, existed in the record, or the process in giving the original judgment.</p> <p>The presiding Judge ruled that no errors existed, and denied .the writ; thereupon, the plaintiff in error excepted.</p>

The nature of the plaintiff’s demand, and the rulings of the Court,'which were excepted to, will be found in the opinion of the Court. ’ The plaintiff was in possession of the premises as tenant for life. His right of action, for the injury to his estate, and the diminution of his profits, is established upon the principle of the cases of Starr fy al. v. Jackson, 11 Maine, 521; Lieman y. Ritchie, 8 -Pick., 235, and Noyes v. Shepherd, 30 Maine, 173. See also, 2 Barb.

On Report. Assumpsit upon a promissory note for $801,25, dated Nov. 3, 1855, signed by the defendant and one Smith, since deceased, payable in twelve months from its date. The principal facts are stated in the opinion.

On Exceptions to the rulings of Davis, J. Trespass to recover the value of certain timber alleged to have been cut by the defendants on the plaintiff’s land. The questions raised, the facts which the evidence tended to prove in relation thereto, and the instructions of the presiding Judge, are stated in the opinion.

<p>A guardian is not authorized by law to make advances from Ms own means for the maintenance of his ward, but is bound to provide for such maintenance from the income and (if necessary,) the principal of the ward’s personal estate, and, if these are insufficient, to obtain license of Court and sell real estate of the ward to provide the means required.</p> <p>A guardian cannot, by making advancements for his ward’s support, make the ward his debtor upon arriving at full age; and an action cannot be maintained by the guardian against his late ward, when of age, to obtain remuneration for such advancements, nor for a balance due him on Ms guardianship account as adjusted and allowed by the Probate Court.</p>

On mótion that the Court confirm the verdict of a jury. In March, 1858, on petition of the present plaintiff, the selectmen of Falmouth laid out a private way for him over land of the defendants, and estimated the damages thereon, which they ordered to be paid by said Goodwin. Goodwin, being aggrieved by the estimate of damages, applied to the County Commissioners for a jury to make a new estimate.

On Report. Assumpsit on a policy of insurance issued by the defendants, a mutual insurance company, brought in the name of the plaintiff for the benefit of one Sprowl. The execution of the policy, and the loss within the term were admitted. The other facts are sufficiently stated in the opinion.

<p>If a tenant in common takes the whole income, or more than his share of the income of the common property, without the consent of his co-tenant, he is liable to such co-tenant in an action of assumpsit, after demand, for the excess above his share.</p> <p>But, if he takes the income of a specified portion of the property, with the consent of his co-tenant, such action cannot be maintained.</p> <p>A judgment is not necessarily vacated or annulled by the granting of a review of it, and the rendering of judgment in the action of review.</p> <p>When final judgment has been rendered on a petition for partition, and then a review granted, and precisely the same partition made and judgment rendered on the review as originally, the former judgment is not affected by the proceedings in review.</p>

This was an action of trespass on the case, brought by the plaintiff to recover damages for a personal injury, which happened to him by the falling of a stick of timber whilst he was in the service of the defendants.

On Exceptions to the ruling of Davis, J. ' This was an action on a poor debtor’s bond, given by the__ defendants, to procure the release of George H. Blanchard from arrest on an execution against said Blanchard and Charles W. Coburn. It appeared that the judgment, on which the execution issued, was against Blanchard and Charles W. Cahoon, and that the name of Coburn was accidentally inserted in the execution by the clerk instead of that of Cahoon.

On Exceptions to the ruling of Tenney, C. J. This was an action for a false disclosure. The defendant demurred to the declaration. The presiding Judge sustained the demurrer and the plaintiffs excepted. The declaration alleged that the judgment and execution, upon which the disclosure was made, were recovered by one David Dyer, for the sole use and benefit of the plaintiffs, who were the creditors in interest.

On Exceptions to the ruling of Appleton, J., presiding. Assumpsit. On the second day of the return term the defendants caused to be entered on the docket an offer to be defaulted for a specified sum, but had no time fixed for its acceptance by the plaintiff. The case was not tried, but, at a subsequent term, the plaintiff accepted the offer.

<p>On pacts agreed.</p> <p>Assumpsit by the plaintiffs, as owners of a vessel, against the defendant, as master, for an alleged balance of .the earnings remaining in his hands.</p> <p>' The facts are stated in the opinion.</p> <p>1. The defendant had no right to charge his expenses in going to New York, because the right to compensation for service, or to make charges on the ground of service, commenced only .when and where the service commenced.</p> <p>2. He had no right to charge for his expenses in returning from Havre, after his discharge, because, by the laws of shipping, on such facts as are now agreed, shipowners may terminate the service of the master, when and where they please. His rights to compensation, or to make charges in the nature of compensation for expenses afterwards incurred for him-' self, then ceases.</p> <p>And, as to such expenses, incurred before or after the term of employment, the rule of law is the same in all contracts for service, whether on sea or land.</p> <p>3. The defendant is not entitled to retain his commissions on the sum collected, as demurrage.</p> <p>Demurrage is well known in the law of shipping to be a mere reimbursement of expenses incurred, when the charterer suffers the ship to be delayed. Under such delay, seamen’s wages and subsistence, and other like expenses, would be a dead loss to the owners, if not defrayed by demurrage. Such reimbursement is no gain to the owners. It calls for no ability or skill on the part of the master. He has no service to render in regard to it, except simply to collect it and account for it.</p> <p>He cannot, therefore, have commissions on it, or make any profit out of it. To allow him a commission on demurrage money, instead of stimulating him to activity and the exercise of skill, would tend to a contrary effect. It would make it for his advantage to have the ship delayed, to the loss of his owners in all other respects. The interest on their capital, the cost of insurance and the wear and exposure of the ship, would be running on to their injury. The master might enjoy a delay in a favorite port, if, besides his wages and his interest in the freight, he was to have also commissions on the very stores consumed in the delay by himself and the crew, and on the wages of a large and expensive crew.</p> <p>It is obvious that the activity of a skilful master may greatly shorten the time required for loading a ship, as compared, all other things being equal, with the case, where the master may make a personal profit out of the delay.</p> <p>If his commissions are confined to the productive freight, this tends to secure his activity in shortening delays as much as possible.</p> <p>Such being the reasons for the law, such is the law governing a contract, for commissions, stated as the contract is, in this case.</p> <p>1. The defendant rightly retained the amount of his expenses to New York. His services commenced as soon as he started.</p> <p>2. The sum received for demurrage was as much the earnings of the vessel, as if received for freight. He is entitled to his commissions upon it.</p> <p>3. The cost of his passage home from Havre was rightly charged.</p> <p>It cannot be reasonably pretended that either party designed that the contract should be abruptly terminated at the pleasure of one, without regard to the rights of the other. If the captain had wantonly abandoned his office in a foreign port, where it would have been injurious to the owners, he would have been liable to them for damages. He had agreed to sail their ship on a general freighting business, and could have no right to leave his duty at his mere caprice. The indefinite time for which the engagement was made could have no effect upon the rights and obligations of the parties, or, if there is any difference, it is that, under a general engagement for hire and service, the parties would be required to close their relations cautiously, so as to avoid damage to either, while, in case of contract for a particular voyage or a specific period, the end would be gained by the performance of the voyage or the expiration of the time, and neither plaintiffs or defendant could complain that his discharge of the duties voluntarily assumed had left him in an unfavorable position, or imposed loss on him. But, although it may be contended,' that shipowners may at any time displace a master whom they have appointed, with or without any specific arrangement as to the length of his employment, there is no reason or justice in the proposition that such dismissal can be made without compensation to him. .</p>

On Exceptions to the rulings of Dayis, J. Debt upon a bond, given to procure an injunction under the provisions of § 11, c. 96 of the R. S. of 1841.

This action was trover. -At the third term after entry, on the first call of the docket, the action was marked for trial. On the third day, the case was called up in its order, and, no one appearing for the defendant, (his counsel being temporarily absent from the State,) he was defaulted. On the 29th day of the term, the defendant’s counsel appeared, and moved to have the default taken off, which motion was denied by Davis, J., presiding.

On Exceptions to the ruling of Davis, J. Assumpsit to recover damages to the plaintiff’s goods in a store leased by him of the defendants, caused by the want of sufficient repairs, which it was alleged the defendants promised to make.

<p>An action of the case, under § 4, c. 125, of R. S., for the recovery of property lost in gambling, may be maintained without a previous demand.</p> <p>The provision of R. S., c. 81, § 114, that the time of the defendant’s absence from the State “ shall not be taken as a part of the time limited for the commencement of the action,” applies to actions upon the statute to recover property lost at gambling.</p>

Exceptions from the ruling of Dayis, J. This was an action brought upon a promissory note and submitted to the Court, without the intervention of a jury, reserving the right to except. There was evidence tending to show that the sum of eight dollars and forty cents, included in the note, was for usurious interest. And the defendant testified, that that sum, which is indorsed on the note as paid on the day the note is dated, was not then or at any time since paid by him.

On Exceptions to tbe ruling of Dayis, J. The alleged trustee duly made his disclosure and was charged, whereupon he filed exceptions. The contents of the disclosure, so far as they affect the questions raised, are stated in the opinion.

On Exceptions from Nisi Prius, Davis, J., presiding. Indictment for Murder. The case is stated in the opinion. 1. The objection was made as soon as it was known to the prisoner’s counsel. If the objection is taken as soon as it is known to counsel, it is sufficient. Commonwealth v. Greene, 17 Mass., 516, 537. 2. The presiding Judge ruled that the objection came too late. 3. His ruling cannot be sustained. The authorities are decisive. 1 Greenl.

<p>From the papers iu the case, (the briefs of the counsel and the opinion of the Court,*) it appears, that this was an action to recover of the defendant town for the support of one Daniel Bates, an insane pauper, whose legal settlement, the plaintiffs allege, was in Hebron. From the year 1849 to the time this action was brought, the said Bates had been under guardianship.</p> <p>1. That an insane person is capable of gaining a settlement in his own right, by five years residence. Augusta v. Turner, 24 Maine, 112 j 'Neiff Vineyard v. Harpswell, 33 Maine, 193.</p> <p>2. That a residence, established for an indefinite period, the person having no established home any where else, constitutes, for the time being, a legal home, and, if continued for . five years, will give a settlement under our pauper laws, however precarious may be the tenure of such a home. Wilton v. Falmouth, 15 Maine, 479.</p> <p>3. TJiat, if an act of the will is necessary to establish a home, the will of the guardian of an insane person is sufficient. Holyoke v. Haskins, 5 Pick., 20.</p> <p>argued that this case was distinguishable from the cases cited by the plaintiffs’ counsel, and all other cases in this State, where it has been held that a person non compos mentis has himself gained a settlement by a residence of five successive years.</p> <p>In this case, the pauper has been insane, and incapable of the intention that is required, in order to acquire a settlement by residing in a town. “ He must be there with an intention to remain, or, at least, without an intention of removal. Turner v. Buckfield, 3 Maine, 229.</p> <p>The case cited by the plaintiffs, Holyoke v. Haskins, 5 Pick., 20, decides that the guardian of an idiot has the same power over his ward, that the parent has over his child. He has the custody of his person and may appoint his place of residence. His domicil may be changed by the direction, or with the assent of his guardian, whether express or implied.</p> <p>It is the intention of the guardian of -an insane person, combined with Ms actual residence, that gains a settlement for his ward.</p> <p>Did Bates “ reside and have a home” in Hebron, for five continuous years ? He boarded at Keen’s, in that town, for more than five years; but was it the intention of the guardian when he placed him there, that lie should remain that timé, or, at least, without an intention of removing him ? In Warren v. Thomaston, 43 Maine, 406, the Court say, “ dwelling place and home mean some permanent"abode or residence, with an intention to remain,” and cite Turner v. Buclcfield, 3 Maine, 229; Jefferson v. IVhiiefield, 19 Maine, 293.</p> <p>The guardian paid his ward’s board by the week. He testifies “ I hired him kept by the week, for no definite length of time. I placed him there until some circumstances took place that I could move him to a better home.” It was not, there-, fore, the intention of the guardian that Hebron should be his permanent home. He did not fix upon that place as «the permanent residence of his ward, without an intention of removing him.</p>

<p>Reported from Nisi Prius by Goodenow, J.</p> <p>Trover, to recovér certain railroad bonds. The most material facts, appearing from the report, are, in substance, that the plaintiffs hired of the defendants, on the 24th day of September, 1855, one thousand dollars, upon their promissory note, signed for them, by their treasurer, as principal, and by seven persons, as sureties. [From the testimony in the case, it appeared that the sureties were directors of the plaintiff corporation.] The plaintiffs pledged to the bank, as collateral security for the payment of the note, $2000, par value, in bonds of the plaintiff railroad company, with semiannual interest coupons attached.</p> <p>On the 15th of December following, the defendants discounted for the plaintiffs a similar note for $500, with $1000 in bonds, as collateral. And, on the 17th of January, 1856, a third note for $1000 was discounted, with $2000 in bonds as collateral for its payment.</p> <p>These notes were renewed from time to time, the bonds and coupons remaining pledged for the security of each successive note.</p> <p>On January 24th, 1857, the above notes were renewed by a similar note for $2800, on four months, and this was renewed May 23d, 1857, by a similar note for $3000, on six months, maturing November 14th, 1857, the bonds and coupons remaining pledged as collateral security for each successive note.</p> <p>This last note remained overdue till December 28th, 1857, when it was renewed by two notes, each dated December 26th, 1857, payable in six months, one for $2000, and the other for $1000, both of a similar character to the one first described.</p> <p>To secure these last two notes the aforesaid bonds and coupons of the plaintiff railroad company, amounting at par to $6000, were left pledged in the hands of the bank as collateral security for said notes. On a portion of the bonds, the coupons were payable on April 1,-1857, and thence semiannually eve'ry six months; and on the remainder of the bonds the coupons were payable June 1, 1857, and thence every six months.</p> <p>All these coupons, except one, were attached to the bonds when first left by the plaintiffs, but such as had become payable, namely, two coupons from each bond, were cut off by defendants previous «to October 12th, 1857, as hereafter stated.</p> <p>The defendants cut off from the bonds whatever coupons were payable up to October 12th, 1857, and on that day sent them to the Merchants’ Bank for collection, but they were not then paid, but were again presented January 15th, 1858, and they were then paid out of funds provided by the plaintiffs. The amount so received by the defendants, being $354, was retained by the bank, in the place of the surrendered coupons, to secure the payment of the notes, as stated by the officers of the bank, and no part of said notes has since been paid; and the whole amount, principal and interest, minus the said $354, received on said coupons as aforesaid, is still due and uncollected.</p> <p>The plaintiffs placed in the Merchants’ Bank, Portland, money for the payment of such coupons as were attached to bonds negotiated and were due. The defendants presented the coupons, cut off as above, at the Merchants’ Bank and received the money from the officers of the bank, who delivered the coupons to the plaintiffs, in whose hands they have ever since remained.</p> <p>Previous to such presentation and payment, notice had been published by plaintiffs — “that all overdue coupons of the mortgage bonds of the Androscoggin Rail Road Company, will be paid on the fifteenth day of January, 1858, at the , Merchants’ Bank in Portland.”</p> <p>Similar, and other bonds, had before this, been negotiated by the plaintiffs with other parties, and were absolutely held by such- parties.</p> <p>Before commencement of the suit, plaintiffs demanded of defendants payment of the bonds at $100 or par value, and offered to take the aforesaid notes in part payment therefor.</p> <p>The depositions of several witnesses accompanied the report, as part of the case.</p> <p>The Court to enter a nonsuit or default as the rights of the parties require.</p> <p>The depositions in the case are somewhat voluminous. The bearing of the testimony on some points is indicated by the counsel in their arguments.</p> <p>The bonds in controversy were pledged as collateral security for the payment of certain of the plaintiffs’ notes, which the defendants held. They were signed by the directors, in their individual capacity, as sureties, with the express understanding, as stated by one of the witnesses, that the funds of the company were to take care of them. The sole interest of the sureties was, that the value of the collateral should not be diminished by the conduct of the bank.</p> <p>The plaintiffs had actually sold and transferred other of their bonds, the interest on which they were to pay as it accrued.</p> <p>Before they had raised the moneyfor this purpose, the defendants, on or about October 12,1857, cut off from the bonds lodged with them by the plaintiffs, as collateral to their six months note, dated May 23d, 1857, all the coupons due at that date, and presented them at a bank in Portland to be paid. The case shows that the note was not then due. Subsequently the note was renewed by two six months notes, dated Dec. 28,1857; and, on the 14th January, 1858, before these notes matured, the defendants again presented the coupons at bank for collection, and, on the 15th, received the whole amount, viz., $354.</p> <p>This severance and collection of these coupons was an unjustifiable act on the part of the defendants, and amounts to a conversion of the bonds, of which the defendants were mere bailees.</p> <p>The law is well settled, that the bailee may only exercise any other acts than safe keeping of the thing pledged, where the use of the thing may be necessary for the preservation of the deposit, or is authorized by the depositor. Story on Bailments, § 89.</p> <p>It cannot be pretended here, that there was any previous authority given by the plaintiffs that the coupons should be collected, or any ratification of the act after it was done. The testimony of the president, who pledged the bonds, is explicit.</p> <p>Defendants may claim that they were justified in presenting these coupons by the notice, because it includes “ all overdue coupons.” The bonds had not been put in the market or sold. They, and the coupons annexed, were the property of the plaintiffs, and the coupons were no more overdue and payable by the company, in the sense of the notice, or in a legal sense, than those which remained in the treasurer’s safe, awaiting a market.</p> <p>The case does not come within the class in which the deposit will be diminished in value unless used; but it may be contended that there were two parties to the notes, the makers and the indorsers or sureties, and, that it was the duty of the bank to the sureties, to collect the interest on the deposit as it matured.</p> <p>Under the facts in this case the position is wholly untenable.</p> <p>The bailee has no right to do more than safely keep the pledge, unless it is for the interest of the pledgor or his sureties, that the pledge he used.</p> <p>It will not be pretended that it was for the interest of the plantiffs that the coupons should be collected, for, if paid, it would be with plaintiffs’ money. And the interest of the sureties was identical with that of the plaintiffs.</p> <p>Until breach of condition, the bailee has no other right over a pledge of this nature than that of possession. Courts look with great jealousy on any exercise of dominion on the part of the bailee, who is not allowed to sell the pledge, even after breach of condition. The subject is much discussed in Wheeler v. Newbold, 5 Duer, 29, and 2 Smith, 392, where it is held that, until after failure to perform the principal obligation, the bailee cannot collect the interest on the collateral.</p> <p>In the case at bar the coupons were collected months before the notes were payable.</p> <p>The bonds were fledged, not mortgaged. The contract by which they were pledged was entirely silent as to the power of the pledgees over them. It laid no restrictions; imposed. no terms. The law is to determine what rights were conferred, and what duties were imposed upon them.</p> <p>From an examination of the authorities, it will be found, that it is not only the right, but the duty of holders of pledged bonds, notes and other like securities, to receive the money due upon them as fast as it becomes payable; and, if it is not paid voluntarily, to demand it.</p> <p>This is precisely what the defendants, in this case, did; nothing more, nothing less. They demanded and received payment of the overdue coupons.</p> <p>The plaintiffs contend that -this was an unjustifiable act on the part of the defendánts and amounted to a conversion, not only of the coupons collected, but of all the other coupons, and the bonds themselves; so that an action of trover can be maintained for them, notwithstanding the notes, to secure which they were pledged, have never been paid. The defendants, on the other hand, contend that, in all this, they have done no more than it was their right and duty to do.</p> <p>It was their right, because their own security depended upon it. It was to the collateral alone they looked for safety against loss. The overdue coupons could then be collected, and a small amount thus realized from the collateral, while delay might occasion a loss of the whole.</p> <p>It was their duty, because, having the possession and control of these securities, good faith to the owners, whoever they might be, and the sureties on the notes to secure which they were pledged, required the defendants to take care that no loss or depreciation in value should take place through their negligence in not presenting them for payment at the proper time, and while payment could be obtained. If, through the lapse of time and the insolvency of the responsible parties, the coupons collected by defendants had been lost, would not the sureties have justly complained? Would they not have said to the defendants, “ if you had presented these coupons for payment at the proper time, they would not have been lost; the loss is the result of your negligence, and you must bear it.”</p> <p>Generally, if not universally, it is so clearly for the advantage of the pledgor to have his securities collected for him by the pledgee, that few cases will be likely to arise where he will be the complaining party for such action on the part of the bailee. Take the case of a pledged note, payable on time, with a poor maker and a good indorser. Is it not the duty of the bailee to present the note for payment when it becomes due, and, if paid, receive the money, if not, notify the indorser ? In fact, in all cases, where pledged securities are liable to become worthless or greatly depreciated in value from lapse of time, is it not the duty of the bailee to guard against such loss by the use of reasonable efforts to collect the money as fast as it becomes due ?</p> <p>It is certainly the right of debtors to pay their bonds, and other like securities, as fast as they become due. And if they are pledged, what is to be done ? If the pledgee cannot rightfully receive the pay, how can payment be made ? No one else can receive it, for that would defeat the purposes of the pledge.</p> <p>In this case, the defendants did not sell the bonds or coupons. They .only surrendered the overdue coupons to the plaintiffs or their agent, on the receipt of payment of the amount due upon them. And the plaintiffs themselves have ever since had possession of them. In doing this, the defendants violated no express agreement, for none was ever made. Certainly they were under no moral or equitable restraint, for their debt had been overdue and dishonored for nearly, if not quite, two years.</p> <p>If, then, these defendants had a right, under the circumstances, to present these overdue interest coupons and receive the amount due upon them, it will require no additional argument to prove they had a right to surrender them to the plaintiffs, for such is the express stipulation in the bonds, that the interest will be paid on surrender of the coupons. If to surrender, of course they had a right to separate them from the bonds, for they could not otherwise be surrendered. In fact, coupons, as their name indicates, are made to be cut off.</p> <p>To the point, that the bailees had the right to receive payment on the collateral, when the whole or a part of it becomés due before the principal, counsel cited and commented upon Wheeler v. Newbold, 2 Smith’s N. Y. Rep., 392; Russell v. Hester, 10 Ala., 535, (7 U. S. Dig., 77, § 19); Com. Bank of N. 0. v. Martin, 1 La. Ann. R., 344, (9 U. S. Dig., 62, § 24); Chambersburg Ins. Co. v. Smith, 11 Penn. State R., (1 Jones,) 120, (10 Dig., 58, § 14); Lee v. Baldwin, 10 Geo., 208, (13 Dig., 74, § 24); Am. Leading Cases, vol. 2, pp, 349, 350.</p>

Reported from Nisi Prius by Tenney, C. J. This was an action for money had and received, in which the plaintiff claimed to recover of the defendant the sum of one hundred dollars.

Reported by Kent, J. The plaintiff claims that Joseph Additon, at the time of his decease, was indebted to him, 'and brings this action against the defendant, as executor de son tort, of the estate of said Additon, to recover the amount of the alleged indebtedness.

Exceptions from the ruling of May, J. This action was not upon the law docket, but comes up] under the provisions of c. 77, § 18. It was commenced before a justice of the peace, from whose judgment the plaintiff appealed. At Nisi Prius, the defendant filed a general demurrer to the declaration in the writ, which was joined by the plaintiff. The Court overruled the demurrer and adjudged the declaration to be sufficient; to which ruling the defendant excepted.

On Report by Goodenow, J. Assumpsit to recover of the defendants the expenses of • • committing to the Insane Hospital, and amounts paid at said Hospital, for the support of Lydia B. Smith, wife of Laban Smith, whose settlement was alleged to be in the defendant town. The defendants denied all the allegations in the declaration, except the payment of the amounts alleged to have been paid.

<p>One who outs the hay of another and puts it into the latter’s barn, under a verbal agreement by which the hay is to be divided, and one half assigned to him for his services, has the rights of a tenant at will.</p> <p>Such right would continue until the tenancy should be terminated, or the property removed, if done within a reasonable time.</p> <p>After the hay is divided, the tenant has the right to enter within a reasonable time, and remove it, and the owner could not revoke the license so as to prevent it.</p> <p>If, in such case, the owner of the barn forbids the tenant entering to take away the hay, he may do it forcibly, at a reasonable time, and in a reasonable manner, doing no more injury than reasonably necessary to obtain and carry away his hay.</p>

<p>On Exceptions.</p> <p>Indictment against the respondent for being a common seller of intoxicating liquors, found at the term of the Court held on the third Tuesday of October, A. D., 1860. The indictment alleged that the offence was committed “ on the first day of September, in the year of our Lord one thousand eight hundred and fifty-eight, and on divers other days and times, between said first day of September, aforesaid, and the day of the finding of this indictment.”</p> <p>After verdict against him. the respondent moved in arrest of judgment, because, — 1st. The indictment alleges that the defendant was a common seller, from September 1st, 1858, up to the finding the indictment; whereas it is not competent to include within the time charged more than two years time, as the time charged is barred by the lapse of two years.</p> <p>2d. The charge is that defendant was a common seller at divers and sundry times, between said September 1st, 1858, and the date of the finding said'indictment. The indictment contains but one count, and is therefore double.</p> <p>The presiding Judge (Goodenow, J.,) overruled the motion, and the respondent excepted.</p> <p>This prosecution is barred by the lapse of two years after the offence was committed. 39 Maine, 354.</p> <p>Every allegation, therefore, in the indictment may be true, and yet the defendant be entitled to an acquittal.</p> <p>In such cases, judgment should be arrested.</p> <p>In an indictment, every material fact necessary to constitute the offence charged must be set forth with certainty, as to the time. 35 Maine, 205.</p> <p>The only certain time charged in this indictment is the first day of September, A. D., 1858. But an offence committed on that day is barred by the statute of limitations.</p> <p>Nor is the indictment aided by the allegation of “ and on divers other days,” &c.</p> <p>This destroys the prerequisite of certainty, and introduces other offences into the same count, and thus makes the indictment bad for duplicity.</p> <p>cited, State v. Hobbs, 39 Maine, 212, and The People v. Stanwood, 9 Cowen, 655.</p>

<p>One who has received a gratuitous gift of money, will not be chargeable therefor as the trustee of the donor, in a process of foreign attachment, although the debt sued for existed prior to the gift, if the case does not disclose that the donor was insolvent or largely indebted.</p>

On Report. Trover for a horse. Jedediah Estes testified, — I sold and delivered the horse to the plaintiff, for signing a note with me, as my surety, for $80, payable to defendant. Think defendant was present when I delivered the horse to plaintiff. Sometime afterwards he let me have the horse to use. Sold him to defendant afterwards, and informed him that plaintiff owned the horse. At the time of sale to defendant I agreed to pay the plaintiff for the horse.

<p>On Report by Goodenow, J.</p> <p>Debt on a judgment. The facts proved are stated in the opinion.</p>

On Report from Nisi Prius, May, J., presiding; Trespass quare clausum, in which the plaintiff alleged that the defendant’s cattle broke and entered his close. The defence was, that the cattle were lawfully in the adjoining close, and escaped therefrom through the neglect of the plaintiff to maintain his part of the partition fence. It was admitted that the plaintiff was entitled to recover, unless the evidence established the defence.

<p>On Report by Goodenow, J. vs</p> <p>Real action. The case is sufficiently stated in the opinion,</p>

On Exceptions to instructions of Goodenow, J. Assumpsit for 250 cords of wood. The writ contains three counts; one for not accepting the wood; another for wood sold and delivered, and the third for services performed and materials furnished. The plaintiff’s testimony is stated in the dissenting opinion of Goodenow, J. The counsel for defendants requested the Judge to instruct the jury, that the case was within the statute of frauds and could not be maintained.

<p>A collector of taxes, legally qualified, acting within the scope of his powers, under a warrant from competent authority, is protected against all illegalities but his own.</p> <p>His return is prima fade evidence of the facts stated therein.</p> <p>A man cannot have a residence for purposes of taxation in two towns at the same time.</p> <p>"When a town line passes through the house of a person, his residence will be held to be in that town in which the most necessary and indispensable part of his house is situated, especially if the out buildings and other conveniences axe in that town.</p>

Writ op Entry. Upon the facts in the case, as stated by the parties, Goodenow, J., presiding at Nisi Prius, was of the opinion that the plaintiff’s action was maintainable. The defendant thereupon consented to a default, to be taken off, if, in the opinion of the full Court, the plaintiffs were not entitled to recover, upon the statement of the facts admitted by the parties. The case was argued by

<p>On Report from Nisi Prius, Goodenow, J., presiding.</p> <p>Writ op entry. The plaintiffs claim under a levy of an execution against one Edwards. The land levied on is thus described in the appraisers’ certificate, to wit, “ Beginning at the corner of land on the line between Gilman Chapman and the said Edwards, then running south seventeen degrees west on the said line between said Chapman and Edwards, thirty-five rods to stake and stones; thence north seventy-three degrees west, one hundred and fifty-two rods; thence in a northerly direction until it strikes the line of land owned by the heirs of George Chapman; thence on said Chapman’s line to a stone culvert in the said railroad; thence,” Ac.</p> <p>The surveyor appointed by the Court testified that “he run the line marked on the plan ‘S. 17° E. 35 rods,’ to the point marked B, where was a monument as agreed by the parties, from whjch he run the two lines, one north seventy-three degrees west, the other south seventy-three degrees west, as shown by the plan; thence, from the point marked C, the line extending northwardly, as appears by the plan.”</p> <p>The following is intended as a copy of the plan, sufficiently accurate to understand more readily the questions considered by the Court.</p> <p> </p>

On Exceptions to the ruling of Goodenow, J. Replevin. The plea was non cepit with a brief statement. The jury came into Court with a written verdict signed by their foreman. It was read by the clerk, — “the jury find that the defendant did take the goods,” &c. The verdict was so affirmed and ordered to be recorded; and the jury were discharged.

This was an action of Trespass, brought against the sheriff of the county of Hancock, for certain goods attached by him on a writ, as the property of one E. H. Stockbridge. This case was presented on a statement of the facts, and was .elaborately argued in writing by

<p>Bill in Equity. A general demurrer was filed to the bill.</p> <p>The case was argued in writing by</p>

<p>Tbe “ additional time not exceeding, in the whole, eighteen months,” allowed by statute to creditors of an insolvent estate to prove their claims before the commissioners, means time in which the creditors may prove, and the commissioners may act, upon the claims to be proved.</p> <p>The statute (c. 66, § 4, of E. S. Of 1857,) manifestly intends that eighteen months, in the whole, should be given to the creditors, in which to present their claims; therefore the limitation of the time to eighteen months “from the date of the commission,” contained in the statutes of 1841, was omitted.</p>

Reported by Rice, J. Writ op Entry. The demandant claims title to the parcel of land in Ellsworth, described in his writ, under a levy thereon, of an execution against one Williamson, the same having been attached on the original writ on which judgment in the action was rendered. From the case, it appears the writ contained two counts, declaring in one count, on a promissory note for $125, and interest; in the other, generally for $500, for money had and received.

Reported by Rice, J. This was an action to recover the sum of §32, for supplies furnished and expenses paid on account of one James Cox, a pauper, whose settlement is alleged to be in the defendant town. It is admitted that said Cox was a pauper, and that the plaintiffs furnished supplies and paid for his funeral expenses to the amount charged.

Exceptions from the rulings of Kent, J. This was an action on the case for deceit.

This was a suit in Equity, and was heard upon bill, answer and proofs. The order of Court was that the bill should be dismissed, unless other persons should be made defendant parties. See Stone v. Locke, 46 'Maine, 445. This order was certified to the clerk of the Courts for the county of Hancock, and by him entered upon his docket.

On Rei*ort by Appleton, J. This was an action of assumpsit on a special contract, dated December 17th, 1846, by which the defendant’s intestate promised to keep upon a farm a certain amount of stock and farming utensils, and to do certain other things stipulated in the contract.

On Report. The material facts in the case appear in the argument of counsel and the opinion of the Court. 1. The plaintiff makes out a prima facie case. • • 2. The defence is, that, before the suit, Nickerson, who had been employed as an attorney to collect the .debt, settled it for thirty per cent., and gave discharges.

This was an action upon the case, to recover damages for injuries, which the plaintiff alleged he sustained, by reason of a defect in a road which the defendants were bound to keep in repair. Held: that it was too late to make, the objection after a verdict, if the party making it knew the fact before verdict, and then did not make the objection..

Exceptions to the rulings of May, J. This was an action of Assumpsit to recover back $45,80, assessed upon the plaintiff’s poll and personal estate, as an inhabitant of Addison, in the year 1855, alleged to have been paid to the defendants’ collector under protest; also $36,17, assessed for the year 1856, for which his property was seized and sold by the collector, and for $10, for costs and charges.

<p>On Report from Nisi Prius, Goodenow, J., presiding.</p> <p>The case is fully stated in the opinion.</p>

On Report. Indictment for a defective highway. The evidence tended to show, that the highway described in the indictment consisted of two ways laid out at different times, one called the Nevins road, and the other the road between the Nevins road and the outlet of Eastern lake. The facts established by the evidence, so far as the questions of law raised in the case are affected, are stated in the opinion.

<p>Writ oe Entry. On Report of the evidence by May, J.</p> <p>The demandant was the owner of eleven-sixteenths of certain property in Calais, including sundry mills, George Downes of one-sixteenth, and J. M. Robbins of four-sixteenths. Legal partition had been made of three-sixteenths of the eleven held by the plaintiff, by which he became the owner in severalty of one of two saws and one undivided half of the other in the Madison Mill; also partition-of three of the four-sixteenths held by Robbins, giving him the Franklin Mill and one undivided half of the stream saw in the Washington Mill; also partition of one-sixteenth held by George Downes, to whom was assigned one-half of the Dyer Mill, the other half having been conveyed to J. Dyer by the plaintiff.</p> <p>Commissioners appointed to make partition in 1825, on the petition of E. H. Robbins,- the then owner of three-sixteenths of the property, assigned to him, amongst other estate, “ the water privilege occupied by the saw mill called Franklin, and marked on the plan No. 7, and one undivided half of the stream saw of the Washington mill, marked on the plan No. 2.” This, through several intervening conveyances, became the property of the tenants. They had, however, other rights, derived from Robbins, and also from a deed from the demand-ant, but not such as to affect this case.</p> <p>The demandant, in his writ, claimed a described piece of land adjoining the Washington Mill, of which he alleged he had been disseized by the tenant. The tenants, in their brief statement, alleged title in themselves in severalty to a part of the demanded premises, and as tenants in common with the plaintiff and others of the residue.</p> <p>It appeared in evidence that the tenants had erected an addition to their mills, and had widened the flume above and enlarged the channel below, thereby increasing the quantity of water used in their mills, and had occupied and used the parcel of land demanded in this action.</p> <p>The case was taken from the jury, and the facts reported for the full Court, to draw such inferences as a jury might draw, and enter such judgment as the law and facts should require.</p> <p>The case was elaborately argued, and the evidence reviewed and commented upon, by</p>

Trespass on the Case. On facts reported by May, J. This action was between the same parties, and related to the same property as the preceding. The evidence affecting the case was substantially the same.

On Report of the evidence by Kent, J. This was an action op the case, for alleged injuries to the plaintiff’s mill, tried at October term, 1854; the verdict then rendered was afterwards set aside, and a new trial ordered. Writ dated Sept. 20, 1853.

This case was presented on exceptions 'to the ruling of Eice, J., directing a nonsuit upon the facts as they were proved by the evidence offered by the plaintiff. The alleged unlawful landing of the passengers was claimed to have been at Eastport. The exceptions were argued by

<p>On Exceptions to the rulings of Mat, J.</p> <p>Trespass for a horse alleged to be the property of the plaintiff and to have been taken by the defendant. The defendant justified the taking by virtue of a writ of attachment against one William N. Knox, whose property he alleged the horse to have been at the time of the attachment. The evidence tended to show that Knox sold the horse to the plaintiff before the attachment, who left him in the possession of Knox under a written agreement, that he should “ remain in the hands of Knox until called for” by the plaintiff. The plaintiff testified that he had never called on Knox or the defendant -for the horse.</p> <p>The defendant contended that the sale of the horse to ' Knox was fraudulent' and void, and introduced evidence in support of his allegations. He offered to prove that the sale of a schooner by Knox, to one Palmer, of Boston, in the fall of 1857, was fraudulent. This evidence, being objected to was excluded by the presiding Judge.</p> <p>The defendant’s counsel, requested that the jury be instructed that the plaintiff, never having had more than nominal possession of the horse sued for, and having, by written agreement, left him in the hands of Knox until called for by himself, and never having called for him, this action could not be maintained.</p> <p>This instruction was not given, and the verdict being for plaintiff, the defendant excepted. There was also á motion to set aside the verdict, upon which no question of law was made.</p> <p>Th,e plaintiff had not the possession or the right to immediate possession, and therefore cannot maintain this action. The horse was left in the hands of Knox “until called for.” Under this agreement, Knox had a right to reasonable notice when his possession should terminate. Wyman v. Dorr, 3 Maine, 183; Lunt S¡ al. v. Brown, 13 Maine, 236, and cases therein cited.</p>

On Exceptions to tbo ruling of Kent, J. Trespass quare clausum. The evidence tended to show that the plaintiff was tenant at will of the locus in quo, under the defendant, paying rent yearly; that, in the fall of 1857, the defendant notified the plaintiff verbally that he should not allow him to occupy the premises any longer; and that the alleged trespass was ‘committed in June, 1858. The counsel for the plaintiff requested the presiding.

<p>In an action for a personal injury, caused by a defect in a highway, a request to instruct the jury, “ if they find, that at the time of the accident the plaintiff was intoxicated, this, of itself, would constitute such a want of ordinary care as would preclude him from the right to recover,” was properly refused; the question, what constituted ordinary care, being one for the determination of the jury.</p>

This was an action of assumpsit. The facts material to an understanding of the case, as agreed by the parties, will be found in the opinion of the Court. The case was argued by

<p>On Report. Assumpsit for money had and received, as provided by statute, ‘upon an account against the estate of John M. M. Brewer, presented to the commissioners of insolvency on said estate, and by them rejected.</p> <p>The defendant, in her specifications- of defence, denied that the appeal from the report of the commissioners had been taken in season, and relied upon a settlement of the account by Brewer in his lifetime, alleging that the plaintiffs’ claim was for interest only, and, therefore, this action could not be maintained.</p> <p>The evidence in relation to the appeal is stated in the opinion.</p> <p>The only other evidence was the testimony of F. A. Pike, which was, that “in May, 1857, I was called upon by Mr. Boynton, of the firm of N. Boynton & Co., who acted for the Robbins Cordage Company, and I went to Robbinston with him to see John M. M. Brewer to get security from him for the debt in favor of the Cordage Company.</p> <p>“After a good deal of conversation, an agreement was finally made as to the kind of security and Mr. Brewer gave Ms note for $2248,91, and thereupon Mr. Boynton receipted and settled the account.” Before this was done they looked over the account and compared it with Mr. Brewer’s books and talked about the interest on the account.</p> <p>It was arranged between them that “ Mr. Boynton was to go home, have an account made and sent down, and if it disagreed with the account settled it was to be rectified. The only difference, so far as I recollect, was about the interest. The account then settled was in gross. Mr. Boynton then went home and the next week sent to me the account annexed to the writ in this case. I showed it to Brewer within a ,few days, and he said he thought there would not be so much due, but he would make out a statement and give it to me. He made a statement and gave it to me. I told him I would figure it up and see if there was any considerable disagreement. I did figure up this statement, and made it within a few dollars of the account sent me from Boston. I told him the results of my castings. He said he would take the statement and examine it himself, and he took it. After his death it was found among his papers. I have compared the account annexed to the writ with the account upon Mr. Brewer’s ledger and they .agree, and I think there is no material difference between this and Mr. Brewer’s statement. The only objection Mr. Brewer made to this account was, that he thought there would not be so much interest.”</p> <p>On cross-examination. — “ The receipted bill was given at the time of the interview between Brewer and Boynton. I cannot recollect all the conversation at that time, but, my impression is, that we looked at the books, and that there was apparently some discrepancy between the .amounts of the interest charged. Mr Boynton said he knew nothing about the accounts; that he had had nothing to do with the management of the concern until lately, and he would go home and have á full statement made and sent down. I don’t recollect any further conversation upon that point. The main part of the conversation was as to the security. He was anxious to get security. The note given was secured by mortgage.</p> <p>“ Neither time that I talked with Mr. Brewer, did he claim that the account settled was a final settlement of accounts.</p> <p>“ Mr. Brewer was in feeble health at the time. He died about a year afterward. He did not say any thing about whether the account settled was or was not a final settlement. There had been quite large transactions between the parties, extending for several years back.”</p>

<p>On Exceptions to the ruling of Tenney, C. J.</p> <p>Trespass quare clausum, fregit. ■ The declaration alleged that the defendant broke and entered the plaintiff’s close, “ situated in East Machias, to wit, the several meadow lots, so called, which are numbered 85, 86 and 87, respectively,” &e.</p> <p>The defendant pleaded the general issue with a brief statement of “ soil and freehold.” •</p> <p>At the trial, the defendant moved that the plaintiff, before introducing his testimony, should select which of said meadow lots the trespass was committed upon; and that he be confined to testimony applicable to the lot so selected.</p> <p>But the Court overruled the motion, and allowed the plaintiff to prove acts of trespass committed on all of said meadow lots, and the defendant excepted.</p> <p>The plaintiff contended that the locus in quo was a portion of meadow lots Nos. 85, 86 and 87; and the defendant that it was included in lot No. 50, according to a plan by Water-house.</p> <p>The plaintiff put in a deed of warranty from Samuel Ellis to himself, dated September 28, 1833, acknowledged and recorded December 5, 1833, of three fresh meadow lots, &c., numbered 85, 86 and 87, on the proprietor’s plan and records of Machias, and known by name of Scott meadow; and introduced proof tending to show that for fifty years the meadow had been known as the Scott meadow, and as lots 83, 84, 85, 86 and 87, and that he had been in the exclusive, open and adverse possession of the locus in quo, as a part of those meadow lots, ever since the date of his deed aforesaid; he admitted that the locus in quo lay south of Waterhouse’s north line of the township.</p> <p>The defendant introduced a deed of warranty from Joseph Cutler and wife, to himself and others, of lot No. 50, on Waterhouse’s plan, bounded north by. Waterhouse’s north line of the township, dated June 27, 1844, acknowledged same day, and recorded January 2, 1846. The description in this deed includes the locus in quo. He also offered evidence tending to show that he had notified the plaintiff that he claimed all the meadow south of the Waterhouse line, and that he had cut trees on the locus in quo, and had also cut the grass growing there.</p> <p>The whole evidence was reported as a part of the exceptions, but it is not necessary to state it more fully, in order to show what questions of law were raised in the case.</p> <p>Upon the evidence introduced, the jury were instructed that, if the plaintiff, upon receiving and recording the deed from Samuel Ellis to him, dated September 28, 1833, entered upon the land therein described, and continued to have a visible possession, occupancy, and improvement of only a portion thereof, such occupation and improvement, uncontrolled by other facts, were a disseizin of the true owner as to the whole of the land described in the deed, though Ellis might not have had title thereto.</p> <p>Or, if the plaintiff’s possession of the premises in dispute was open, notorious, exclusive and adverse, comporting with the usual management of a farm by its owner, though a portion was woodland and uncultivated, and though not wholly surrounded by fences, or rendered inaccessible by other obstructions, it would constitute a disseizin of the true owner, unaffected by other facts.</p> <p>But if he cut the grass upon a natural fresh meadow, and carried the hay away and converted it to his own use, annually for any period of time however long, without any other possession of the land, on which it grew, or any claim of title to the land, such acts alone would not constitute an adverse possession against the true owner of the soil.</p> <p>If the defendant introduced no evidence of title or possession of his grantors, in the premises described in their deed to him of lot No. 50, dated June 27, 1844, and recorded January 2, 1846, it could not control and ride over the recorded deed of Ellis to the plaintiff, or affect the possession of the plaintiff of the premises in dispute, if his possession was such under the instructions aforesaid, as would constitute a disseizin of the true owner; that the delivery and registry of the deed to the defendant of lot No. 50, would not purge the disseizin of the plaintiff, (if the latter had acquired such a possession as constitutes a disseizin according to the foregoing instructions, or, if the disseizin was constituted by the delivery and recording of the deed of Ellis to him,) without an entry into some part of the disputed premises. But, if the defendant had the title to the premises in dispute, under the deed to him from Joseph Cutler and wife, or the right of entry therein, the disseizin might be purged by an- entry. And, in regard to an entry, the intent with which it is made, generally determines its character, and consequently, the effect of the act. The mere act of going upon the land and cutting trees upon it, will not always constitute a legal entry sufficient to vest the seizin in him who has the legal right. In order to constitute a legal entry, the party must go upon the premises with that intent.</p> <p>The jury were also instructed, that a title in fee was not essential to the maintaining of an action of trespass by one having the actual possession against a stranger to the title, and not in possession; and, at the request of the plaintiff, that no person can purge a disseizin by an entry, who is not the true owner, or who does not make the entry by authority of the true owner.</p> <p>The defendant requested the presiding Judge to instruct the jury,—</p> <p>1. That, the defendant, being in possession of lot No. 50, second division, under a recorded warranty deed, his possession is presumed by law to be co-extensive with the grant described in his deed, unless they shall find by the evidence, that the plaintiff had the undisputed, open, notorious and exclusive adverse possession of some part of it for more than twenty years.</p> <p>2. That, such possession in order to be adverse as against the true owner of the soil, must not only be open, notorious, and exclusive, but must have, been under an asserted claim to own some part of the land by permanent bounds as against the true owner; and, that the fact of having mown the grass annually on the natural fresh meadow, and carrying away the hay and converting it to his own use, could not constitute an adverse possession as against the true owner of the soil.</p> <p>3. That, if the plaintiff having meadows of his own, adjoining lot No. 50, crossed over the line into that lot, and mowed the grass, and converted the hay to his own use annually, without the knowledge of the owner, or of his agent or attorney, such occupation,'however long continued, would not constitute au adverse possession as against the true owner of the land.</p> <p>4. That, if the plaintiff has his full complement of acres of meadow for the three meadow lots claimed by him north of the Waterhouse line, or northern boundary of the defendant’s lot, he cannot lawfully claim, and hold as part of those meadow lots, any portion of defendant’s lot as described in his deed.</p> <p>5. And also, to instruct the jury, as to what constitutes an adverse possession as against the true owner of the defendant’s lot.</p> <p>The first clause of the second requested instruction was given; the remainder of that, and the others were not given any further than they are contained in the instructions already given.</p> <p>The verdict being against the defendant he excepted to the instructions, and to the refusal to instruct.</p> <p>The case was argued in writing by</p>

On Report of the evidence by Appleton, J. Trespass quart clausum, fregit. Plea, general issue, with brief statement claiming title in the defendant to the locus in quo.

Trover for a colt. This case was tried before Cutting, J., and the evidence reported for the full Court to render such judgment as the law and evidence required. The facts appear sufficiently in the opinion of the Court. argued that this was not a case of sale on condition, but of sale and delivery of goods effected by fraud and false representations on the part of the vendor. 2 Parsons on Cont., 21, and note; Sawyer v. Shaw, 9 Greenl., 41; Leighton v. Stevens, 22 Maine, 252.

<p>This was an action of Assumpsit.</p> <p>On the 14th October, 1856, the defendant gave the plaintiff a permit “ to enter, with two six ox teams or its equivalent, upon that part of No. 4, range 3, west from the east line of .the State, which lies west of the east branch of the Mattawamkeag, (excepting that part engaged to Josiah Jellerson,) and north of a line running east and west, and three and a half miles north of the south line of said town, and to cut and remove therefrom spruce and pine timber suitable for board logs,” &c.</p> <p>On the third day of November, 1856, the defendant gave Jellerson a permit “to enter with two or more horse teams upon that part of No 4, range 3, W. E. L. State, belonging to said Gilman, commencing on the south line of said Gil-man’s land, and west of the east branch of the Mattawamkeag, and carrying a width of one mile, and to extend west a sufficient distance to make out a winter’s work for two horse teams,” &c.</p> <p>The declaration in the plaintiff’s writ alleges, that the defendant, being the owner of township No. 4, promised and engaged to grant the plaintiff a permit on all of said township west of the east branch of the Mattawamkeag, except what he had promised thereon to Josiah Jellerson, and at the same time represented to Rufus Mansur, agent of the plaintiff, that the portion he had engaged to Jellerson commenced on the south line of the plaintiff’s land, west of the east branch of the Mattawamkeag, of the width of one mile, and extending west to the first point of the lake, and assured Mansur for the plaintiff,. that he might operate on all the rest of the land; that, relying on the representations of the defendant, the plaintiff took a permit as proposed, and bound himself to take the ensuing winter not less than one million feet board measure; that the defendant afterwards, unmindful of his engagements to the plaintiff, gave a permit to Jellerson for two or more horse teams on that part of No. 4, commencing on the south line of Gilman’s land, and west of the east branch of the Mattawamkeag, carrying a width of one mile, and extending west a sufficient distance to make a winter’s work for two horse teams, on which permit Jellerson entered and cut 300,000 feet board measure west of the easterly point of the lake aforesaid, not finding, as he truly alleged, timber sufficient east thereof, and that said Jellerson also cut 50,000 feet north of the north line given him in his permit, and this he did by the license and authority of the defendant, for all which the defendant received stumpage from Jellerson; and the plaintiff avers that he put1 in th.e teams prescribed in his permit, and operated during the winter, but did not cut a million feet board measure because the timber was not on the land assigned him, as limited by the permit to Jellerson, in consequence of which limit he cut 3 or 400,000 feet less than he otherwise should have cut with the same teams and in the same time; and that the plaintiff was obliged, by the defendant’s violating his agreement as already set forth, to cut inferior timber, and haul it a longer distance, &e., to the damage of the plaintiff, &c.</p> <p>There was evidence tending to show that the defendant represented to Mansur, that the territory he had engaged to Jellerson extended no further west than the most eastern point of Pleasant lake, and other evidence tending to show that the territory thus engaged was to extend far enough west for a winter’s work for two teams.</p> <p>The plaintiff offered in evidence the writ, judgment and docket entries in a case, Jellerson v. Small S¡ others, for an alleged trespass or territory embraced in Jellerson’s permit; but the Court excluded them.</p> <p>The plaintiff also offered a letter from Mansur, his agent, to him, written immediately after the bargain with Gilman; but it was not admitted.</p> <p>There was much other testimony, not pertinent to the points on which the case turned.</p> <p>The plaintiff requested the Court to instruct the jury, that if the defendant, at the time he agreed to give the permit, and did give it to the plaintiff, represented to the plaintiff’s agent that the exception extended no further west than the easternmost point of Pleasant lake, when in fact the defendant had promised Jellerson a permit extending far enough west for a winter’s work for two teams, and the plaintiff suffered damage by such representation, he was entitled to recover such reasonable and proximate damage as he is shown to have suffered, whether such representation was made from misrecollection or mistake. And that, if the defendant gave to the plaintiff a permit, and afterwards gave one to Jellerson covering part of the same territory, under which the latter cut timber embraced in the plaintiff’s permit, whereby the plaintiff suffered damages, he was entitled to recover such damages in this action.</p> <p>The Court, Cutting, J., presiding, declined giving these instructions, but instructed the jury, that this action could not be maintained, if the jury found such misrepresentations made by the defendant, as alleged by the plaintiff, unless they also found that such misrepresentations were wilfully false, and were made by the defendant with the intent to deceive and injure the plaintiff.</p> <p>The jury returned a verdict for the defendant.</p> <p>The plaintiff filed exceptions to the rulings of the Court.</p> <p>1. The letter of Mansur to the plaintiff was part of the res gestee, and should have been admitted. ' 1 Greenl. Ev., §108; Thorndike v. Boston, 1 Met., 242; Allen v. Duncan, 2 Pick., 308.</p> <p>2. The 'requested instruction should have been given. If the plaintiff was led into a contract by an untrue representation, why should not he be remunerated for the loss he suffered thereby? 2 Parsons on Con., 268, ed. 1845. If a party makes a false representation to promote his own interest, without knowing whether it is true or false, he is liable for the damage arising therefrom. Stone v. Denny, 4 Met., 151; Hazard v. Irwin, 18 Pick., 96. The representation that the part engaged to Jellerson was that part east of the easternmost point of the lake, was, in fact, a promise and warranty that the permit given.to the plaintiff covered all the territory-on the south mile strip west of that point. But the permit given to Jellerson embraced the whole of the south mile strip, to the west line of the defendant’s land, if necessary for Jellerson’s winter’s work. This was a direct breach of the contract, to the great damage of the plaintiff.</p> <p>3. The instruction given was erroneous., A false representation in many cases furnishes a ground of action, although made with no intent to deceive. It is so in cases of insurance, where there is an implied warranty that the representations are- true. So with representations of landlords- as to the condition of tenements they offer to let. The consequences are often as injurious to the other party, whether- the representations are made for the purpose of deceiving, or simply through misinformation.</p> <p>and cited Taylor v. Ashton, 11 M. & W., 413, and cases cited; Moers v. Hey-worth, 10 M. & W., 156; Adamson v. Jarvis, 12 Moore, 241; Lohdell v. Baker, 1 Met., 200, 201.</p> <p>contended that the'instructions given to the jury were correct, and that the case-furnished no ground for the instructions requested and refused.</p> <p>The letter of Mansur to the plaintiff was mere conversation between the plaintiff and his agent, in the absence of the defendant, and, as such, inadmissible.</p> <p>The declaration in the writ was insufficient, and. set forth no cause of action. It does not allege fraud, nor that the representations made were false. 2 Greenl. Ev., 230, a, 6th edition; Hammait v. Emerson, 37 Maine,-308.</p> <p>The permit to the plaintiff was effectual, in accordance with the representations made by the defendant at the time, and could not be limited by-a subsequent permit to Jellerson.</p> <p>The promises of the defendant to grant permits, both to the plaintiff and to Jellerson, were void, being verbal only, and both being for the sale of an “ interest in and concerning real estate.”’ R. S., c. Ill, § 1.</p>

<p>Writ op Entry. On report of the evidence by Cutting, J.</p> <p>The demandant claimed two acres of land, being a described part of the lot No. 3., letter F, range 2, west from the east line of the State, now called Presque Isle. Plea the general issue, with brief statement and claim for betterments.</p> <p>The demandant introduced a deed from E. L. Hamlin, Land Agent, to Dennis Fairbanks, jr., assignee of Dennis Fairbanks, of lot No. 3, dated October 22, 1841, and recorded January 21,1842; deed from Dennis D. D, Fairbanks to T. J. Hobart, Dec. 20, 1845; T. J. Hobart to Shepard Cary and Collins Whitaker, Sept. 27, 1847; C. Whitaker and wife to Shepard Cary, May 11, 1852.</p> <p>It was admitted that the demanded premises were part of lot No. 3.</p> <p>It was in evidence that Dennis D. D. Fairbanks was the same person as Dennis Fairbanks, jr., and that, attached to the record, in the office of the Land Agent, of his deed to D. Fairbanks, jr., was a paper purporting to be a letter from Dennis Fairbanks, authorizing and directing the Land Agent to convey lot No. 3, to Dennis Fairbanks, jr. There" was some evidence tending to show that the letter -was in the handwriting of Dennis Fairbanks, but the original was not produced.</p> <p>The tenant introduced a resolve of the Legislature, authorizing the Land Agent to convey to Dennis Fairbanks, or his assigns, lot No. 3, township F, range 2, west from the east line of the State, on which he had erected a saw and grist mill, &c., approved March 18,1840; deed of the demanded premises, Dennis Fairbanks to Mary Reed, dated June 19, 1840, and recorded July 3, 1840; Mary Reed to C. H. Shepard, March 7, 1843; C. H. Shepard to F. S. Whitney, August 16, 1847; F. S. Whitney to S. Whitney, June 12, 1854; S. Whitney to the tenant, May .11, 1857.</p> <p>It was proved, amongst other things, that Dennis Fairbanks commenced a clearing upon lot No. 3, in 1828 or 1829, which he enlarged from year to year, until he conveyed the two acres to Mrs. Reed; that she and her husband built a house on the two acres about 1840, which still stands there; that a store and large stable were afterwards built on the same lot, and that, subsequently, the tenant erected another house, costing $5000 or 6000; that the demandant and his partner Whitaker knew of the occupation of the demanded premises by the tenant and his grantors from 1840, until the date of the writ in the action.</p> <p>There was evidence tending to show that Fairbanks, senior, controlled lot No. 3, after the conveyance to his son as well as before; that the sale by the son to Hobart, was for only $600, and that was never paid, while the property was of much more value.</p> <p>It was agreed that Washington Long and B. L. Staples should assess the value of the improvements made by the tenant, and those under whom he claimed, and, in case of disagreement, that they should select a third person.</p> <p>The evidence was reported to the full Court, they to draw such inferences as a jury might, and to enter such judgment as the law, and the testimony legally admissible, might' require.</p> <p>The deed from Fairbanks, senior, to Mary Reed, was a quitclaim, and passed nothing, the grantor having then no title. Any title he acquired afterwards would not enure to her benefit. Pike v. Galvin, 29 Maine, 183. So, that if the deed to the son, was in trust, it would not avail. But, if there was a trust, there is no evidence that the son’s grantees had any notice of it. The demandant was an innocent bona fide purchaser, and no trust or prior fraud could affect him. G-reenl. Cruise, tit. 12, “ Trust,” § 88; Fonblanque’s Eq., c. 6, § 2, p. 442, and notes. And notice, even, of a conveyance that passed nothing, would be of no consequence. Helm, v. Logan, 4 Bibb, 78.</p> <p>The resolve of March 18,1840, did not give a title per se. It did not purport to grant or convey, but only to authorize the Land Agent to convey. The authority was to convey to Fairbanks “or his assigns.” If the resolve gave the title of itself, to which did it give it, to Fairbanks or his assigns ? Nor did Mrs. Reed, by her quitclaim deed, become the assignee of Fairbanks. That deed was of two acres, and the lot contained 168. The son only was the assignee in writing of the whole. Mrs. Reed’s deed conveyed at most any improvements that had been made on the two acres, not the title. Lombard v. Ruggles, 9 Greenl., 62. The record of Mrs. Reed’s deed was no notice to the Land Agent. Records are not intended to impair the powers of grantors, but to give notice to, and to protect grantees. The records of the Land office showed that the State had not parted with its title in lot No. 3; the Land Agent was not to go to Aroostook county to ascertain who owned it. Nor was the record of Mrs. Reed’s deed legal notice to the son. The title being in the State, came direct to him, and never was in his father at all. Notice is not brought home to him by evidence in pais or by record. Bates v. Norcross, 14 PiGk., 224.'</p> <p>But suppose the son had notice, how does that affect Cary ? He had no notice in pais; had he any by registry ? He took his deed from Hobart. He finds by the record that Hobart had conveyed to no one else; that Fairbanks, the son, had conveyed to no one before his deed to Hobart; and that the State had conveyed to no one before the deed to the son. He thus traces the title direct from the fountain to himself. Conveyances between other parties, having no title to the premises, could not operate as a registry notice to Cary. Fairbanks, senior, had no title, and any other person might as well have deeded to Mrs. Reed as he. Roberts v. Bourne, 23 Maine, 165; Veazie v. Parker, 23 Maine, 170; Pierce v. Taylor, 23 Maine, 246; Bates v. Norcross, before cited.</p> <p>Fairbanks, senior, did not acquire title by adverse possession, as twenty years have not elapsed since the State conveyed to his son; and he did not occupy the premises adversely to the State prior' to that conveyance. Angelí on Limitations, c. 5, and cases cited. ■</p> <p>1. The case finds that Fairbanks, senior, commenced a clearing on the demanded premises in 1828 or 1829, and he and his grantees have occupied ever since. This shows an open, notorious, exclusive, adverse and peaceable possession of more than thirty years. Of this possession the demandant had full knowledge from 1840, down to the time of his taking a deed; nor did he afterwards set up a claim of title to the premises, until this action was brought.</p> <p>2. It is assumed by the demandant that, at the time of the deed,of Fairbanks, senior, to Mrs. Reed, the title to the land was in the State. But how does this appear ? The State is not the only source of title. Individuals own much of the land, under various royal or colonial grants, deeds from Massachusetts, and from ancient owners. No principle of law gives the preference to a junior title from the State over an elder title from another source. The deed of the State, in a judicial tribunal, is to be governed by the same rules of evidence as other deeds. Crooker v. Pendleton, 28 Maine, 339; Doe v. Prosser, Cowper, 217; Hull v. Horner, Cowper, 102; Clapp v. Brenaghan, 9 Cowen, 530; Jackson V. McCall, 10 Johns., 377; 2 Wend., 14; 1 G-reenl. Ev., 53, § 46, note.</p> <p>■ 3. The resolve' of March 18,1840, passed the legal estate in No. 3 to Fairbanks, senior. Mayo v. Libby, 12 Mass., 339; Pike v. Dyke, 2 Maine, 213; Dolloff v. Hardy, 26 Maine, 545; Adams v. Frothingham, 3 Mass., 352; Springfield v. Miller, 12 Mass., 414; Codman v. Winslow, 10 Mass., 146; Folger v. Mitchell, 3 Pick., 396; Thorndike v. Barrett, 3 Maine, 380.</p> <p>'4. But, if the resolve did not pass the title, the. State, after its date, held the land in trust for Fairbanks, senior. In a contract for the purchase of real estate, the vendor, on receiving the purchase money, becomes the trustee of the vendee until conveyance is made. 1 Cruise’s Dig., 370; Bragg v. Faulk, 42 Maine, 502. And a conveyance by the cestui que trust binds the trustee. 3 Kent, 2d ed., 303; 3 Vesey’s B., Sumner’s ed., 127, 341.</p> <p>The term “ assigns,” in the resolve, included any person to whom Fairbanks, senior, should, in any legal mode, transfer his equitable interest in the land or any part of it. 1 Bouv. Law Diet., “ Assigns.” By his deed to Mary Beed, she became the assignee of the two acres. That deed was recorded July 3, 1840, and Fairbanks, junior, had record notice of it before his deed from the Land Agent.</p> <p>Dennis Fairbanks, jr., was not the assignee of his father; nothing short of a deed would make him so. Jacob’s Law Diet., “Assignee;” Fose v. Handy, 2 Maine, 322 ; E. S., c. 73. Assignees must be either by deed or operation of law, as executors, <fec. The Land Agent had, therefore, no authority to convey to Fairbanks, junior.</p> <p>The resolve, as well as a statute then in force, required the conveyance by the Land Agent to be “ conditioned for the performance of settling duties.” Yet the conveyance was unconditional. Could the Land Agent give a valid deed, not conforming to the statute ? All acts of agents, public as well as private, exceeding their authority, are void. Argyle v. Dwinel, 29 Maine, 29 ; Story on Agency, 157, ed., 1839 ; Cushing v. Longfellow, 26 Maine, 306.</p> <p>The letter purporting to be from Dennis Fairbanks to the Land Agent, requesting him to convey to his son, is not produced, and there is no competent evidence of its genuineness.</p> <p>Fairbanks, senior, having assigned his interest in the two acres to Mary Beed, could not authorize the Land Agent to convey to another person. She was his assignee of the two acres, and, as such, entitled to a deed from the State. In equity, the cestui que trust is seized of the freehold. 4 Kent, 303, 2d ed.</p> <p>5. But, if the deed from the State passed all of its interest in the land, what interest did it convey ? After the resolve was passed, the State held the land in trust for Fairbanks and his assigns. Fairbanks, junior, took the conveyance burdened with that trust. The trust fastens itself on the land, and remains, unless the trustee in actual possession conveys to a third party without notice, for a valuable consideration. 1 Greenl. Cruise, 386, 434; Bragg v. Paulk, 42 Maine, 502. The notice need only be such as is necessary to put a party on inquiry. R. S., c: 73, § 12; Evans v. Chisam, 18 Maine, 220.</p> <p>Fairbanks, junior, was not a purchaser for a valuable consideration, and knew that the State was not in possession of the two acres, and that Mrs. Reed was. He therefore took the convey anee, of the two acres in trust for Mrs. Reed. He so regarded it, and never disturbed her.</p> <p>His deed to Hobart was fraudulent. The property conveyed was worth more than $10,000, and yet he sold it for $600, and even that was never paid.</p> <p>Besides the house, store and other buildings on the two acres occupied by Mary Reed, there were, upon lot No. 3, the only saw and grist mill in' that section, a farm where 70 tons of hay had been cut, the house built by the elder Fairbanks, costing over $3000, and land which soon after sold for $100 and $200 an acre.</p> <p>All these facts were known to Cary and Whitaker when they purchased lot No. 3. Hobart conveyed to them only his “ right, title and interest.” Such a deed conveys the actual, not the apparent interest of the grantor. The grantee does not take the estate purged of a fraud in a prior conveyance. Walker v. Lincoln, 45 Maine, 67; Coe v. persons unknown, 43 Maine, 432, and cases cited.</p> <p>If Hobart had any title, it was only a naked legal estate in trust for Mrs. Reed, her heirs and assigns. The demandant succeeds to this trust. -A trustee cannot maintain a writ of entry against his cestui que trust.</p> <p>A grant or deed may be presumed from lapse of time against the State as well as agaiilst an individual. Crooker v. Pendleton, 23 Maine, 339. No particular length of time is required; it may be all the way from 350 down to 15 years. No other evidence, except lapse of time, is necessary to raise the presumption. _ Between 19 and 20 years have elapsed since Mary Reed went into possession under a recorded deed from one who had been in possession 11 years prior to that time. See Melvin v. Prop. Locks and Canal, 11 Pick., 255; same parties, 16 Pick., 131; Picard v. Williams, 1 Wheat., 109; 3 Stark. Ev., 1215, 1228; 2 Black. Com., 198.</p> <p>The demandant shows no equitable claim; but the equity is all with the tenant.</p> <p>1. The State has exercised acts of ownership within twenty years, surveying lots, deeding land, &c. By his recognition of the resolve, Dennis Fairbanks acknowledged that his pos- . session was not adverse to the title of the State. Angelí on Lim., c. 5; Sparhawk v. Ballard, 1 Met., 95; Wilbur v. To-bey, 16 Pick., 111. He is estopped to deny the seizin of his own grantor.' White v. Patten, 24 Pick., 324; Hamlen v. Bank, 19 Maine, 66; 1 Greenl. Ev., §§ 23, 24, note.</p> <p>2. Under the resolve, as worded, the fee continued in the State until delivery of the Land Agent’s deed. Lambert v. Carr, 9 Mass., 185; French v. Iiarlow, id., 192; Mayo v. Libbey, 12 Mass., 341.</p> <p>3. The deed of the Land Agent to Fairbanks, jr., passed the title to him. The agent was a public officer empowered to make a certain conveyance, and he made it. The presumption is, that he conveyed the right land to the right person, until the contrary is shown.</p> <p>Nor was it the duty of the Land Agent to look up Fairbanks’ assigns. If Mrs. Reed was assignee of a part of the grant to him, it was her duty to apply to the Land Agent for a deed, and, if she neglected to do so, the risk was hers.</p> <p>If there were conflicting assignments by Fairbanks, it was for the Land Agent to decide who was the true assignee. His decision to convey to Fairbanks, junior, is conclusive.</p> <p>4. The deed of Fairbanks, senior, to Mrs. Reed, was one of release and quitclaim, and would not estop him from acquiring subsequently other and adverse title to the same land. McCracken v. Wight, 14 Johns., 193; Comstock v. Smith, 13 Pick., 116; Crocker, v. Pierce, 31 Maine, 111. Much less would it estop Fairbanks, junior, from claiming the two acres, under a subsequent title from the State, even though he had notice of Mrs. Reed’s quitclaim. Mrs. Reed’s deed, then, conveyed to her nothing but whatever personalty or improvements her grantor had on the premises.</p> <p>The grantee of Fairbanks, junior, stands better than he, holding, as he does, through several mesne conveyances, without any pretence of notice of the conveyance to Mrs. Reed. Since the R. S. of 1841, possession by her grantee is not notice. Her deed not being in the line of the conveyance from the State, the record of it was not notice. Murray v. Bullen, 1 Johns. Ch., 566; G-reenl. Cruise, tit., 32, c. 29.</p> <p>5. But, conceding that the demandant holds the property charged with a trust in favor of Mrs. Reed’s grantors, the trust estate cannot be set up against the holder of the legal estate in a court of law. Rowe v. Reade, 8 Term, 118, 122; Jackson v. Chase, 2 Johns., 84; same v. Pierce, id., 221; same v. Van Slyck, 8 Johns., 481; Doe v. Wroot, 5 East, 138, note; 1 G-reenl. Cruise, tit. 12, “ Trust,” c. 3, § 62.</p>

Reported by Cutting, J. This was an action of Trespass for the taking and conversion of a horse. The defendant justified the taking and sale of the horse as sheriff of the county, having attached the same on a writ against the plaintiff. The action was submitted to the decision of the presiding Judge, with the right to except.

This was an action of» trespass and was presented to the whole Court on report, by Cutting, J., presiding at Nisi Prius. The report provided for the assessment of damages in case the action is maintainable. The case is stated in the opinion of the Court.

Exceptions from the ruling of Cutting, J. This was an action of trespass vi et armis, for assaulting and maiming the plaintiff by biting off a part of his nose.

On Exceptions. Writ op entry. The matter controverted in this case was the amount which the tenant was entitled to, for betterments. This question was submitted, by the parties, to a referee, against the acceptance of whose report the tenant filed in writing specific objections. Cutting, J., ordered the report to be accepted, and ruled that the matter alleged, if proved, was insufficient to authorize its rejection. The tenant excepted.

Reported from Nisi Prius, by Appleton, J., October term, 1856. This was an action of trespass. The defendant, as an officer, on the 21st day of September, 1855, attached certain horses, oxen and carriages, on two writs in favor of J. A. Cushing,— one against' Andrew R. Grant of Frankfort, and the second against said Grant and John Bachelder of Oldtown.

Assumpsit. At Nisi Prius, Goodenow, J., presiding, being of the opinion that the action was not maintainable, the plaintiff consented to become nonsuit, to be taken off, if, upon a report of the case, to be made by the presiding Judge, the full Court should be of .the opinion that the action Was maintainable. The case was argued by,

<p>Reported from Nisi Prius, by Appleton, J., presiding.</p> <p>This was an action on a contract of guaranty, dated March 27, 1851. The writ is dated the 3d day of September, 1852.</p> <p>At., the October term, 1856, the parties agreed that the case should be reported to the full Court, exercising jury-powers, to be determined upon so much of the evidence as was legally admissible.</p> <p>From the report, it appears that H. W. Cunningham, a deputy sheriff, had in his hands, oii the 27th day of March, 1851, for collection, an execution in favor of the plaintiff, against one William R. Matthews, ■ who pointed out to the officer two wagons, as his property; that, instead of seizing the wagons to satisfy the execution, he took from the debtor in the execution a writing, and the defendant’s guaranty of performance thereof, which are as follows:— 1</p> <p>“ Know all men by these presents, that I, William R. Matthews of Lincolnville, do this day mortgage, sell and deliver to William A. Monroe, two horse wagons, for the security of the payment of an execution in his favor, [execution described,] and the officer’s fees taxed at one dollar, to be paid in thirty days, or cancelled in some other way.</p> <p>“ And I, the said William R. Matthews, do represent to said Monroe that I am the lawful owner and possessor of the said wagons, and that they are free from all incumbrances, and that I will pay said sums as above stated, or cancel the same in some other satisfactory way, or deliver said wagons at the office of H. W. Cunningham, in Belfast, within said thirty days.</p> <p>“ Now if the said William R. Matthews shall pay said mentioned sums, or cancel the same in any satisfactory way within said thirty days, or deliver the same to H. W. Cunningham’s office within that .time, then this obligation shall be void, otherwise shall remain in full force.</p> <p>(Signed)</p> <p>“ Wm. R. Matthews.</p> <p>“Lincolnville, March 27, 1851.”</p> <p>“Waldo, ss. March 27, 1851. I, James Matthews, agree to be responsible if the obligation is not fulfilled as above stated, and that of the delivery of the same property free and clear of any incumbrances.</p> <p>(Signed)</p> <p>“James Matthews.”</p> <p>The officer further testified that, on the 14th day of November following, he demanded of the defendant the wagons.</p> <p>There was evidence that, within thirty days from the date of the contract, an execution in favor of said William E. Matthews, against the plaintiff, was put into the hands of the officer, with directions to offset it against the execution in his hands against said W. E. Matthews; which the officer declined to do, in consequence of a communication received by him, from the justice of the peace who issued the execution.</p> <p>There was also testimony reported, tending to prove that, when the contract was made, it was understood that the said W. E. Matthews had recovered a judgment against the plaintiff ; and that the officer engaged to offset the execution, that should be issued thereon and delivered to him within thirty days, against the execution then in his hands.</p> <p>Testimony was introduced, subject to objection, tending to show that the judgment was wrongfully rendered, the magistrate being absent on the day to which the case was adjourned for further hearing; no other justice having, for that cause, continued the case, — if, under the provision of the statute in such case, another justice had authority to act.</p> <p>At the law term in 1860, this cause was continued to be argued in writing. Briefs were afterwards furnished by</p>

Reported by Cutting, J., from Nisi Prius. This was au action on a policy of insurance for a loss insured against. The case was presented on written arguments by

Exceptions from the ruling of Dayis, J. The plaintiff, an inhabitant of the town of Unity, brought an action to recover of the defendants, for services rendered as a physician, to a sick and destitute person, who was then living, and had a legal settlement, in the defendant town. At Nisi Prius, the presiding Judge ruled that, upon the testimony introduced for plaintiff, on the trial, his action was not maintained; and directed a nonsuit. To this, the plaintiff excepted.

Exceptions from the ruling of Goodenow, J. Complaint for Elowage. The respondent having been defaulted, commissioners were appointed. At a subsequent term, the complainant’s counsel offered the report of the commissioners and moved that it be accepted.

<p>Reported from Nisi Prius by Rice, J.</p> <p>This was an action of the case to recover the value of cer-|66 tain supplies furnished to one William Welch, an alleged pauper. The legal settlement of the pauper was the only question controverted.</p> <p>The depositions of sundry persons are referred to in the report as making a part of the case, none of which are found with the papers. The case was submitted to the full Court, exercising jury powers, to render judgment on nonsuit or default, as the legal rights of the parties may require.</p> <p>The case was argued by</p>

Writ op entry. Both parties claimed under one Ezekiel x>. Williams. The demandant, by virtue of- an attachment of the demanded premises, made on December 16th, 1850, on his writ against said Williams, and a levy thereon of an execution on the 16th day of November, 1857. The defendant claimed under Williams’ deed of mortgage to him of the date of the 19 th of August, 1856.

<p>The vote of a town to divide a school district, is unauthorized and void, where there had been no written statement of the facts submitted by the selectmen, as the statute requires.</p>

Reported from Nisi Prim. Petition for Review of an action, in which the defendant in review recovered of the plaintiffs rent of a store for two quarters. The original writ was dated Sept. 23, 1856, on account annexed, for balance of rent of a store from Sept. 15, 1855, to Sept. 15, 1856, being $125.

<p>The provisions of the Act of 1858, authorizing search for, and seizure of, intoxicating liquors, are not in conflict with the constitution of this State.</p> <p>"When an officer seizes intoxicating liquors upon a warrant, and arrests their alleged keeper, he must have both before the magistrate who issued the warrant.</p> <p>From that time, the proceedings against the person and those against the liquors are separate and distinct. There are then, for all purposes, two distinct cases. The person accused is tried upon the complaint; upon the libel is tried the question whether the liquors were intended for unlawful sale by any one. The judgment in one case does not, in any manner, affect the judgment in the other.</p> <p>If the cases are appealed, they should be entered and tried in the appellate. court as two cases.</p> <p>"When a magistrate adjourns a criminal case within his jurisdiction more than ten days at one time, at the request of the respondent, he cannot afterwards object to it. ,</p> <p>A complaint, alleging that intoxicating liquors were in the possession of the accused, and were intended for unlawful sale in this State, is insufficient. It must allege that the liquors were intended for unlawful sale by the accused.</p> <p>Where a person files a claim to intoxicating liquors which have been libelled, he cannot object to defects in the monition and notice.</p>

Exceptions from the rulings of Rice, J. 0.7 case was argued on the exceptions, in 1857, and was, fry consent of the parties, submitted to all the members of the Court in 1859. The facts bearing upon the questions of law considered by the Court, will be found in the opinion of the Court, and the dissenting opinion by Rice, J.