Volume 49 — Maine Reports

On Report from Nisi Prius, Appleton, J., presiding. This was an action on the ease, which this Court has before had under consideration : — vide 47 Maine, p. 34.

<p>Where one was constituted an agent for the purchase and sale of goods in the name of the principal, a recital, in the power of attorney, that the principal “is about to leave upon a voyage to sea,” does not limit the duration of the agency to the time when the voyage was completed.</p>

On Report from PTisi Prius, Appleton, J., presiding. This was an action of personal replevin, against the defendant, who was the keeper of the jail in Bangor, under the sheriff of the county of Penobscot, — to replevy the person of the plaintiff from his custody. The plaintiff having been arrested on an execution, on the 26th day of June, A. D. 1858, gave the bond provided by statute, to be released from arrest.

<p>An action cannot be maintained under the provisions of the statute, for knowingly aiding a debtor in the fraudulent concealment and transfer of his property, where the transfer, allegedto be fraudulent, is of the right of redeeming property mortgaged to secure debts vastly exceeding its value, and the equity of redemption, therefore, is utterly worthless.</p>

Beported from Nisi JPrius, by Appleton, J. This was an action of assumpsit against the defendant, as indorser of a draft drawn by James Black, on E. A. Yan Dyke, jr., & Co., of Philadelphia, payable to the order of said Wood, and by him indorsed. It was dated, Bang-or, September 12th, 1856, and was protested for non-acceptance.

On Exceptions. This was a special action on tbe case, founded on the provisions of c. 17, § 8, of B. S. The plaintiff alleges in substance, that she is the widow of Jeremiah Lyons, now deceased, on whom she and their children were solely dependent for support; that her said husband was employed by the defendant and was in his service in the steam mill, in Bangor ; that a steam boiler was used by the defendant, having no fusible safety plug, contrary to the form of the…

<p>Towns are, by the statute, bound to furnish actual relief, after notice, to persons in need thereof; and, when a town fails to do this, an inhabitant thereof, (who is not liable for the pauper’s support,) may provide the necessary relief, and recover for the expense thereof against the town, notwithstanding the overseers had contracted to have the relief afforded with one who failed to do it.</p>

Trover. This case was tried by the presiding Judge, Appleton, J., by agreement, reserving the right to except.

This was an action of forcible entry and detainer, commenced before a Justice of the Peace. The defendant pleaded title to the premises, in a brief statement; but the magistrate adjudged his plea to be frivolous, and intended only for delay, proceeded to hear the parties, adjudged the defendant guilty, and that a writ of possession should issue to put the plaintiff in possession. The defendant appealed, and recognized as required by the magistrate.

On statement op the case bx the parties.- This was an action for dower m a parcel of real estate, jn Bangor, called the Coombs wharf. The plaintiff is the widow of Samuel J. Foster, and claims that her husband was seized, of one-third of one-fourth of the estate, and that she is entitled to dower therein. It is agreed that in 1835 Royal Clark conveyed the premises, in mortgage, to Ephraim Lincoln, Samuel J. Foster -and Benjamin Brown.

<p>On Report from Nisi Prius, by Appleton, J.</p> <p>The plaintiff demands dower, as the widow of Samuel J. Foster, in certain premises in Hampden. The tenant denies that her husband was eyer so seized of the estate as to entitle her to dower therein.</p> <p>It was admitted that the fee of the premises was in one John Brown, on the third day of November, A. D. 1888, on which day, an execution against him, in favor of said Samuel J. Foster, and Ephraim Lincoln, and Benjamin Brown, was levied upon the premises, and the same were set off to the said creditors, who, on the 16th day of the same month conveyed the estate, by quitclaim deed, with special warranty, to Barker & Weeks, under whom, through sundry mesne conveyances, the tenant now holds the premises.</p> <p>In the deed from Foster and others, to Barker & Weeks, after giving the boundaries of the premises, they add, "being the same set off to us on execution against John Brown, on the. third day of the present month, as will appear by the return on the execution.”</p> <p>The tenant claiming and holding the estate through the demandant’s husband, is estopped to deny his seizin. Kim-ball v. Kimball, 2 Greenl., 226; Bancroft v. White, 1 Caines, 185 ; Hitchcoclc v. Carpenter, 9 Johns., 344; Smith v. Ingalls, 13 Maine, 284; Nason v. Allen, 6 Greenl., 214; Hains v Gardner, 1 Fairf., 383, and would have been estopped even if there were an outstanding paramount title unless tenant had been evicted. 17 Wend., 164. When the widow’s husband had nothing but a tenancy at will or for years, it was held the tenant was estopped, as he held under the title conveyed by the widow’s husband. Ib.</p> <p>If one enters by wrong and occupies five years, and conveys and dies, if the tenant holds under that title, he is estopped to deny demandant’s seizin.</p> <p>The title became absolute and indefeasible in the grantees of Foster after his conveyance, if not before in Foster.</p> <p>The title of a mortgagee is made void by payment of the mortgage debt; 18 Maine, 170; 6 N. II., 12; 8 Ver., 164. So, where the title is by a levy of execution, if the debtor pay the debt, &c., before the time of redemption has expired. Nothing passed by the deed of the execution creditors to Barker & Weeks, but the right to have title in one year, if the debt was not paid. Undoubtedly, if the time for redemption had elapsed before Foster and others conveyed to Barker & Weeks, and the tenant claimed under that title, he w'ould be estopped from denying the title, and the plaintiff would be entitled to recover dower. But to the case at bar, the rule of estoppel is not applicable. It is clearly distinguishable from the case of Kimball v. Kimball, 2 Greenl., 226, in which the title of the husband was absolute ; the tenant derived title from him, with covenants of warranty — not a mere release of a right to have title, which depended on a contingency. See 43 Maine, 489, also 34 Maine, 135 ; 29 Maine, 266; 36 Maine, 86.</p>

<p>Reported from JPisi Prius, by Appleton, J.</p> <p>Trover for 897 logs. The plaintiffs bad title to the township from which the logs were cut, by mortgage from Rufus Dwinel. Tbe plaintiffs permitted Dwinel to cut logs, they retaining a lien on them. The logs in controversy were cut under a contract made by Howes & Eastman with Dwinel. On August 9th, 1860, the defendant, as sheriff of the county of Penobscot, sold the logs to Samuel Pratt, they being then in the possession of the defendant, he having before that time seized them.</p> <p>In defence, were introduced six writs against said logs and Hewes & Eastman, brought by persons for their claims for services in cutting and hauling the logs, each claiming a lien on the logs under the provisions of the statute. On these writs, the defendant seized and held the logs, until they were sold by him.</p> <p>These writs were returnable to and entered at the October term, A. D. 1860, for the county of Waldo, when the Court ordered notice, as provided by statute, to be given to said Dwinel and the plaintiffs, as owners of the logs. ’ The notice was given, and, at the term of CcfUrt in January, 1861, a default as to the logs was entered, and also against the said Hewes & Eastman; but judgment in none of the cases had been entered up and rendered.</p> <p>This case was argued by</p>

On statement of facts. Assumpsit. The facts, as they are stated by the parties, are these: — The plaintiff is executor of the will of John Bennock. The female defendant is the daughter of the said testator, and was a minor at her father’s death, which occurred in 1855. Josiah Bennock was her guardian. In 1856, she married the defendant and became of age before the date of the writ.

Exceptions by'defendant, to the ruling of Appleton, J., at JSFisi Prius. This was an action of assumpsit for 85 days’ labor in tempering blades for pencil sharpeners.” The defendant pleaded the general issue, and, by way of brief statement, alleged that the subject matter of the present suit was embraced in, and determined by, an award made by referees, appointed by a rule of the Court, in a former action, between the same parties.

<p>Trespass quarc clausum cannot be maintained by a mortgagee of a farm, before entry lor condition broken, against one who holds under the mortgager, and cuts and takes off the grass growing thereon ; for thereby, neither the estate nor the mortgagee’s security is impaired.</p> <p>And if the defendant did nothing recognizing the relation of landlord and tenant, between the mortgagee and himself, the fact that the mortgagee notified him to quit the premises, which he held as his tenant at will, gives no right to maintain such action.</p>

On statement oe eacts. This was an action upon .the defendant’s receipt, given to the plaintiff for certain logs attached by him as an officer, on a writ in favor of one Lunt, against Webster & Grant. That action was brought to enforce the statute lien of said Lunt on the logs, for his personal services, having been one of the men who cut and hauled them. Ladd, the defendant in this action, was the general owner of the logs.

Exceptions from JSTisi Prius to the rulings, pro forma, of Cutting, J.,-discharging the trustee. Erom the disclosure of the trustee, it appears that, prior to and on the 28th day of December, 1859, he had become liable, by indorsing for and advancing to the principal defendants, the sum of $8367,03.

Beporteh from JSTisi Prius, by Appleton, J. , , , Assumpsit on a contract for building a barn, for $125. All the material facts are stated in tbc opinion of tbe Court. The case was argued by

<p>Where a receipt is given for goods attached, to -which an aggregate valuó is affixed, the receipters are bound, on demand, to return all the articles attached. If, in an officer’s receipt for goods attached, the specific value of each article is affixed, and the reeeipter sells a part of them, he may, it seems, on demand made by the officer for the property attached, deliver the articles unsold, and, in lieu of those sold, the amount in money, at -which they were valued in the receipt.</p> <p>Where the sheriff having the execution, received and indorsed thereon, the the proceeds of certain articles included in the receipt, at their agreed value, and took possession of the remainder, the receipters were held to be discharged.</p>

<p>The owners of a certain tannery appointed an agent to aet for them in “ all matters and business relating to the tannery — held, that he was not thereby authorized to bind his principals, as receipters to an officer, for horses, &c., used in the tannery which had been attached as the property of a third person.</p>

This was an action of replevin, submitted to the full Court, upon a report of the evidence offered at JSTisi Prius, Appleton, J., presiding. From the report, it appears, that one Pollard, on November 13th, 1852, was at Gartland Station, with his team of four horses, two of which ho exchanged with one Webber for two of his horses, and agreed to pay Webber for the exchange, sixty-five dollars.

<p>Reported from Nisi Prius by Appleton , J.</p> <p>Debt oil a bond given to release Lord, the principal, from his arrest on execution.</p>

<p>Reported from Nisi Prius, by Appleton, J.</p> <p>This was an action of debt on a bond given by Pearson to be released from arrest on execution. He duly cited the creditors, made a disclosure of Ms property in writing, and was allowed the oath by the justices who gave him a certificate of discharge.</p> <p>The justices made a record of the debtor’s assignment of certain notes secured by mortgage, their appraisal of them, and the fact that they were not produced at the disclosure.</p> <p>The case was argued by</p>

<p>By the rules of pleading, in a real action the defendant admits himself to he in .possession of all the land demanded, if he files no disclaimer of the whole or of any part of it.</p> <p>The statute of 1849, c. 105, provides that the certificate of the register of deeds shall be prima fade evidence of a public notice, by a mortgagee, of Ms claim, to foreclose a mortgage, published “ in a public ’newspaper printed in the county where the premises are situated; ” hut a certificate of the register, that a (recorded) notice “ was copied from the Bangor-Journal, vol. 1,” &e., does not inform the Court, judicially, that the Journal “was a newspaper printed in the county,” &c., and, without other evidence, there is no sufficient proof of notice.</p>

Exceptions from the ruling of Appleton, J. Tins was an action to recover for supplies furnished to .a pauper, whose legal settlement the plaintiffs allege to be in Machias.

On Exceptions. This was an action of debt, on a bond, dated May 1, 1856, given by the defendant for the maintenance of the plaintiff. The obligation contained a provision, that it should be void, if the said Wade Litchfield shall fail to pay his two notes for one hundred dollars each, the first payable in one year, tbe other in two years, with interest. This action was commenced on February 16, 1860.

<p>Bill in Equity, by the, complainant, as surviving partner’ a8’a™s^ administratrix of the deceased partner, and big only beir. Tbe case was heard on demurrer to the bill, answers and proofs. The facts proved and the questions of law argued are fully stated in the opinion.</p>

Assumpsit. On the twenty-fifth day of October, 1855, the plaintiff and defendant entered into a written contract, stipulating that the defendant should furnish money, supplies and teams for a lumbering operation for the then ensuing logging season, with twelve teams, on townships No. 10, range 9, and No. 10, range 10, on the Moostick waters, and the plaintiff should give his whole personal attention, and have the entire charge of the cutting, hauling and driving of the…

On Eeport. Case to recover damages of the defendants for constructing their railroad across a highway, which the plaintiffs are bound to keep in repair, in such a manner as to render such way unsafe and dangerous for travellers thereon. The case and the evidence, (so far as it relates to the questions of law raised,) are sufficiently stated in the opinion. 1. The judgment, Phillips v. plaintiffs, was admissible only to show the fact of its rendition..

Trover for an undivided half of certain logs owned in common by the plaintiff and Daniel Lord, and alleged to have been wholly converted by the defendant, the ■ vendee of Lord. On the trial, before Appleton, J., the plaintiff testified, that he and Lord had owned timber lands together for several years, and had granted permits, signed by both of them, to cut logs thereon; he could not say whether Lord had ever given permits without the plaintiff’s signature.

<p>This was a petition' for a writ of certiorari, to quash the proceedings of the County Commissioners, in haying out a road in the town of Howland, in 1854. The Court, after hearing the case pro forma, denied the prayer of the petitioners, and they filed exceptions. The facts arc sufficiently stated in the opinion of the Court.</p> <p>1. The right to take private property for public uses is conditional, upon compensation being made. The commissioners laying out a road should either award damages to the land owners as compensation, or determine that they are not damaged. In this case they have done neither. Hence, there has been no valid appropriation of the land.</p> <p>Many of the provisions of our statute are similar to those of the Massachusetts statute of 1787, creating a Court of Sessions, as well as to those of intervening statutes. It may be said that our statute does not in terms require the Commissioners to award damages, or return that none should be awarded. But the decisions of the Courts require it. Commonwealth v. Coombs, 2 Mass., 489. But it is not admitted that our statute does not require it. It requires the Commissioners to make a correct return of all their doings.. R. S., c. 25, § 3.</p> <p>If there has been no valid appropriation of the land, the town could not have built the road without being liable to the owners of the land as trespassers.</p> <p>2. The description of the road laid out is defective in several particulars.</p> <p>3. The Commissioners for the year when this road was located, had elected no chairman, and were not qualified to act as a board, not being duly organized.</p> <p>4. ' The warrant of distress against the town was issued prematurely. The agent appointed by the Commissioners undertook to compel the town to pay for building the road from time to time, as the work went on. He underlet the work to several contractors, giving them three years to complete it. The work to be done in 1860 was completed and accepted, leaving the principal part to be done in 1861 and 1862. It is contended that the town is not liable, nor can a warrant of distress issue, until the road is finished. The law contemplates only a single contract. ' If the town is liable to a warrant of distress when a small part of the road is made, there may be a succession of such processes from different contractors as they complete their sections. Yet the whole road may never be finished, and the part made may thus be rendered of no value.</p>

Trespass against the defendant as sheriff of Penobscot county, to recover damages for Ms taking $290 in specie, alleged to be the property of the plaintiff. Plea the general issue, with a brief statement justifying the taking of the money as the property of Mark W. Piper, by virtue of a writ of attachment in favor of Henry Pendexter, against Mark W. Piper and Martin Y. B. Piper.

On Report of the facts by Appleton, J. This was an action of the case against the defendants, as directors of the Penobscot Railroad Company, under the statute of 1853, c. 41, § 3. Whilst the Penobscot Railroad Company was constructing its road across a street in the town of Yeazie, one John Phillips was injured by falling into the cut, whilst travelling along said street, in the evening. He brought his action against the town, and recovered damages and costs.

On report of tbe facts by Appleton, J. This was an. action for money had and received, brought by tbe plaintiff as administrator of Edward Snow. William Snow, tbe father of tbe defendant and ‘of Edward Snow, died in 1846, leaving a will, the provisions of wbicb, so far as relevant to this case, are fully stated in the opinion of tbe Court. ■ Edward died before coming of age, and then Ms mother died without having married again.

<p>Bill in Equity, brought by the plaintiff as administrator of Robert It. Haskins-, late of Bangor, against John Gardner, of Boston.</p> <p>It appears by the bill of complaint, that, in 1833, Gardner recovered judgment against John Butterfield, of Milford, for §78,81, debt, and §17,48, costs, and Haskins, having been a reeeipter on the writ, and surety for the payment of the debt, paid the debt and costs recovered, to the officer having the execution, who paid it to Gardner’s attorney. The officer delivered the execution to Haskins, it not having been discharged or annulled. In 1846, Haskins, in the name of Gardner, brought a suit on the judgment against Butterfield, attached real estate, obtained a new judgment and execution, and levied on the real estate attached, all at his own expense, but in Gardner’s name, the amount of the levy being §219,41.</p> <p>Haskins, in his life time, and after his decease, the plaintiff, as his administrator,„ called upon Gardner to convey by deed of quitclaim the land levied upon as aforesaid, but Gardner refused to do so.</p> <p>Upon these facts, the bill claims that Gardner holds the land in trust for the estate of Haskins, and prays relief, and for an injunction to restrain Gardner from conveying the land until further order of Court, or until the final decree in this case.</p> <p>The defendant demurred to the complaint, on the ground that the complainant had not made out a case entitling him to relief in a Court of Equity.</p> <p>argued that Haskins’ money having been paid out for the debt, and accepted by the creditor, there was in law an equitable assignment to him of the demand. If a surety pays a debt, the security held by the creditor becomes in equity the property of the surety, his rights may be enforced in the name of the creditor, and courts will order the transfer of the legal title in accordance with the equitable one.</p> <p>The case at bar is like that of one purchasing land by the money of another, where the title in equity is at once regarded as in the person who pays the money, and conveyance will be decreed. 2 Story on Eq., §§ 1201-1210. Also like a claim made against one, where another is ultimately liable, in which case equity will enforce the trust in favor of the person ultimately entitled to the benefit of it. §§ 1250, 1255, 1260.</p> <p>The defendant, having received the money of Haskins by virtue of the latter becoming surety, cannot now retain the title to the land and the money too. On every principle of law and equity, the defendant holds the title in trust for the benefit of him who paid the money. Buck v. Pike, 2 Fairf., 1; Bussell v. Luce, 2 Pick., 508; Warren v. Ireland, 29 Maine, 62.</p> <p>In principle, it is a conveyance of land to one, upon a valuable consideration paid by another, where this Court has held that a trust is created. Dwinel v. Veazie, 36 Maine, 509; Baker v. Vining, 30 Maine, 121; Buck v. Swazey, 35 Maine, 41.</p> <p>argued that the bill cannot be maintained — 1, because the payment and receipt of the money are not set forth with sufficient particularity. Hobart v. Andrews, 21 Pick., 526; WaTburn v. Ingilby, 1 Mylne & Keene, 77.</p> <p>2. Because, if Haskins was legally bound to pay, and did pay the debt and costs, he had a plain, full and adequate remedy at law, by action against Butterfield. 1 Story on Eq., 511; Ilogson v. Shaw, 3 Mylne & Keene, 190.</p> <p>3. Because Haskins had no legal or equitable interest in the judgment, Gardner v. Butterfield. It was not sold or assigned to him by Gardner, nor assigned by judgment of court. Ilashell v. Hilton, 30 Maine, 419.</p> <p>4. Because, if Haskins paid the debt of Butterfield to Gardner, as he alleges, it was extinguished, and could not be assigned. The suit on the judgment was groundless, and the levy void. Gardner has no title to the land, and does not hold it in trust for Haskins’ estate. 1 Story, § 499, b, and notes.</p> <p>5. Because, if Haskins -was bound to pay, and did pay the debt, he is not ipso facto substituted for the original creditor, with the right to sue the judgment, and levy on Butterfield’s land, and therefore the defendant does not hold the land in trust for him. 1 Story, § 493, and notes.</p> <p>6. Because, the bill failing to show that Haskins was bound to pay the debt, he paid it voluntarily, and could'not maintain assumpsit against Butterfield for money paid, much less a bill in equity to compel Gardner to assign the debt to him, or to convey the land. 2 Greenl. on Ev., §§ 113, 114, and notes; Windsor v. Savage, 9 Met., 346; Stephens v. Broadnax, 5 AIL, 258.</p>

On Exceptions. Debt on tbo official bond of tbe defendant as sheriff of Penobscot county for tbo year 1857. Tbe case was referred to tbe presiding Judge, with tbe right to except to any of bis rulings in matters of law. The plea was non est factum with a brief statement that tbe principal bad performed all the conditions of the bond.

On Report from Nisi Prius, Davis, J., presiding. This- was an Indictment, charging the defendants with the crime of larceny. The articles stolen were alleged to be the property of one Christian Brahn : and the evidence, on the trial, sustained the allegation.

On Eepoet. The case is fully stated in the opinion. Various questions were raised by the counsel, but the Court found one decisive of the case. An abstract of the arguments upon the other points is therefore omitted. The defendant held the property in trust. It is well settled that a trustee cannot, directly or indirectly, be a purchaser of the trust property. 1 Hill.

<p>A party cannot be bound by'a paper which does not on its face purport to have been made by him, or in his behalf, unless it is shown, by other evidence, that he has adopted it, or agreed to be bound by it.</p> <p>The reference in a contract to a paper of the same name or general description as the one produced in evidence, will not authorize a judge in his instruction to the jury to assume that the paper produced is the one referred to in the contract; but it is for the jury to determine whether the paper is the one referred to.</p> <p>Objections to testimony, not made at the trial, are waived.</p> <p>Warranties in a policy of insurance, or in the application when made a part of the policy, must be fully kept and performed, without reference to the question whether they are material or immaterial.</p> <p>But misrepresentations do not avoid a policy of insurance unless they are material or prejudicial to the insurers.</p> <p>The renewal of a policy of insurance, without any new application, stands upon the same ground as the original policy.</p> <p>Misrepresentations in obtaining a policy of insurance are waived by a renewal of the policy, with a knowledge of the risk.</p> <p>If the instructions applicable to the case are correct, the verdict will not be set aside, although the presiding Judge give erroneous instructions upon matters not relating to the case.</p> <p>If the notice of a loss to the insurers is sufficient in form, it is for the jury to determine whether it is sufficient in substance.</p> <p>If the assured uses his utmost exertions in protecting and securing the property insured, at, during, and subsequently to the fire, a loss by larceny falls upon the insurers.</p>

On Report. Trespass quare clausum fregit, for cutting plaintiff’s flume and encumbering his land with lumber, &c. The case is stated in the opinion.

<p>On Report.</p> <p>Assumpsit to recover one-sixteenth of the earnings of a vessel. The case is fully stated in the opinion.</p>

On Exceptions to the ruling of Mat, J. Trover for 600 Para hides. Held: by virue of the contract of October 8, 1857, the hides claimed of the defendants as collateral security for the payment of said notes. This judgment is conclusive upon the plaintiffs. Laws of Mass., 1838, c. 163, § 3; 1 Greenl. Ev., §§ 525, 541, 543, 533, 534; Story’s Conflict of Laws, § § 591, 592, 593 ; Anderson v. Frye, 6 Ind., 76.

<p>On Report, by Davis, J.</p> <p>Assumpsit on the following order: —</p> <p>"$224. "Cumberland, Dee. 17th, 1857.</p> <p>"Messrs. Lyman, Marrett & Co., — Six months after date, please pay to Plummer & Gerry two hundred and twenty-four dollars, and charge the same to my account.</p> <p>"David Spear.”</p> <p>This order was duly protested for non-payment.</p> <p>In- the summer of 1857, Spear was building a vessel at Cumberland; the plaintiffs furnished lumber which was put into said vessel, and to pay for which the above order was given. On Wednesday, Dec. 16th, the vessel was launched at about noon, and was brought up to Portland the following Saturday evening, between 9 and 10 o’clock.</p> <p>Jesse Plummer, one of the plaintiffs, testified that he first heard of the vessel being launched on Thursday of the same week; had a conversation with Marrett, one of the defendants, and learned that the defendants had an interest in the vessel, and asked Marrett if he would pay the plaintiffs’ claim. Marrett said he would not without Spear’s order, but did not wish the plaintiffs to attach the vessel on their lien, as it would put the defendants to trouble. Marrett said if Spear would give an order on the defendants, they would accept it. Witness went to Cumberland the next day, (Friday,) and obtained the order from Spear which is given above, and presented it to Mr. Lyman and to Mr. Marrett, but they both refused to accept it. He then went to see Spear, but Spear would do nothing further. He could not see Spear until Saturday. After seeing him, he went to Cumberland to attach the vessel on the lien, but she had gone to Portland.</p> <p>John E. Donnell testified that he heard part of the conversation between Jesse Plummer and Marrett, and understood Marrett to say that, if the plaintiffs would get an order from Spear, the defendants would accept it.</p> <p>Orlando M. Marrett, one of the defendants, testified that the defendants had no title to the vessel until the day she was launched, when they took a carpenter’s certificate, and filed it at the custom house. The defendants had advanced in cash and merchandize to Spear, from $10,000 to $12,000, and had no funds of Spear in their hands at the time of witness’ conversation with Plummer. If Plummer had attached the vessel to enforce his lien, the defendants would have had to pay his claim. Witness could not recollect all his conversation with Plummer, but is confident he never agreed to accept an order from Spear. The defendants sold the vessel, and received the proceeds, which were not sufficient to remunerate them for their advances and expenses.</p> <p>The evidence was reported to the full Court, they to draw such inferences as a jury might draw, and enter a nonsuit or default, as law and the rights of the parties should require.</p> <p>The property in the vessel was in the defendants, after the launching, when they had filed the carpenter’s certificate in the custom house. It appears by the testimony of Plummer and Donnell that, rather than have the plaintiffs enforce their lien, Marrett promised to accept an oi'der from Spear. Marrett denies this, but the acts of the parties show that he is in error; for Plummer went to Spear and obtained an order, and gave Spear a receipt in full, and then presented the order to Marrett.</p> <p>The case shows a promise, upon a sufficient consideration, to accept an order. It was an original promise, and not within the statute of frauds, Townsley v. Sumrcdl, 2 Peters, 170; and is binding upon the parties. Coolidge v. Payson, 2 Wheat., 75 ; Chitty on Bills, 285, and note.</p> <p>It makes no difference that the oi’der is not negotiable. The promise was to accept an order, and, not being within the statute of frauds, it constituted a legal obligation, whether the order was negotiable or not.</p> <p>The advances of the defendants having greatly exceeded the value of the vessel, the equity of the case is with them.</p> <p>Admitting the alleged promise, it was a parol agreement to accept a non-existing order, or draft, upon which the defendants cannot be liable. Chitty on Bills, 284; Bayley on Bills, 145 ; Laing v. Barclay, 1 B. & C., 398 ; Coolidge v. Pay son, 2 "Wheaton, 66; Storer v. Logan, 9 Mass., 58; Wilson v. Clements, 3 Mass., 1.</p> <p>A promise to accept, is not an acceptance. Johnson v. Qollins, 1 East, 105'; 3 Mass., 13.</p> <p>Before the alleged promise, there was no privity between the plaintiffs and defendants. The plaintiffs had dealt directly with Spear, and the defendants were not liable for his debts. Spear owed the plaintiffs, and the plaintiffs say that defendants promised to pay the debt. The promise, if proved, was to pay the debt of another, and was within the statute of frauds.</p> <p>' The conduct of the plaintiffs shows that they did not regard the alleged promise as an absolute and independent one, but as collateral to the indebtedness of Spear. After the defendants declined accepting the order, the plaintiffs attempted to enforce the lien on the vessel, in a suit against Spear. A parol promise, collateral to a subsisting indebtedness, cannot be enforced.</p> <p>The plaintiffs were not injured by the defendants not accepting the order, as they had until Monday noon to enforce their lien on the vessel. With ordinary diligence, the plaintiffs might have made themselves secure. That they did not, was occasioned by their own negligence and not by any act of the defendants'.</p>

On Exceptions to rulings and instructions of Davis, J., and on a motion for a now trial, because the verdict was against evidence, and on the ground of newly discovered evidence. The motions were not argued. This was an action of the case against the, late sheriff of Somerset county, for the alleged default of his deputy, Daniel Bunker, in not keeping certain property attached by him on a writ of plaintiff against Thomas McMullen and George McDaniels.

<p>Assumpsit will not lie upon an award made in pursuance of a submission under seal.</p>

On Exceptions to the ruling of Davis, J. Assumpsit to recover an alleged balance due the plaintiff, by reason of an error in the settlement of an account. The facts are stated in the opinion. After the evidence of the plaintiff was out, the presiding Judge ordered a non-suit, and the plaintiff excepted.

<p>On Report from Nisi Prius, Appleton, J., presiding,</p> <p>Assumpsit upon a-promissory note, dated Nov. 1, 1855, payable to the Commercial Mutual Marine Insurance Company or their order, in fourteen months from its date.</p> <p>The testimony tended to show that the plaintiff was not the owner of the note; that the Traders’ Bank were the holders of the note, claiming to be the owners of it; that their attorney called upon the plaintiff and obtained his permission to bring the suit in his name; that the Traders’ Bank were prosecuting the suit; that George H. Folger was President of the company for three years previous to April, 1856, and frequently drew checks, signed and indorsed notes for the company, in the name and as President of the company ; that he resigned in April, 1856, and no successor was chosen; that, in August, 1856, he indorsed this note, as President of the company, to the Traders’ Bank', by whom it was discounted; and that the company received and used the avails of the note.</p> <p>1. The suit is not maintainable in Patten’s name, though he consented to the bringing of it.</p> <p>There is no evidence whatever that the Traders’ Bank have authorized the use of Patten’s name. This is fatal. Bragg v. Greenleaf, 14 Maine, 395; Fisher v. Bradford, 7 Maine, 28; Golder v. Foss, 43 Maine, 366.</p> <p>Plaintiff’s attorneys have no authority, as such, to bring suit in any other than client’s name.</p> <p>If, as defendant contends, the note is still the property of the original payees, the insurance company, the objection would be equally strong, they never having authorized suit in anybody’s name.</p> <p>2. The property in the note is still in the insurance company, never having been duly and legally transferred.</p> <p>Folger was not the President of the company, and had no authority to transfer the note, or indorse it at the time he assumed to do so. He ceased to be President, April 23, 1856. The note was transfex’red in September following. Nor is there any evidence that after his resignation he acted as President in any thing, except in the transfer of this note.</p> <p>The insurance company had ceased taking risks or paying losses at the time of his resignation. They never held him out to the public afterwards as having any authority to bind them.</p> <p>Not being what he assumed to be, the burden is on plaintiff to show that he was so recognized and permitted to act by the company as to bind it.</p> <p>The proof is insufficient for that purpose.</p> <p>There were no such " 'notorious ” acts as is spoken of in Bank v. Bandridge, 12 Wheat., 64; nor such "recognition” by the board of directors of authority. See also Angelí & Ames on Corporations, § 287; Canal Bridge v. Gordon, 1 Pick., 304; Sampson v. Steam Mill Co., 36 Maine, 80; Pen. & Ken. R. R. Co. v. Bunn, 39 Maine, 599.</p> <p>None of the eases bearing upon the question present so loose and unsatisfactory grounds of presumption as does this. In most of them the positive proof existing here, that the acting officer was not what he pretended, was wanting. Lovett v. German Reformed Church, 12 Barb., 68; Mel-ledge v. Boston Iron Works, 5 Cush., 179.</p>

Bill in Equity. The case was heard on bill, answer, aud documentary proof. The bill is dated March 14, 1861, and was filed in the clerk’s office, March 18, 1861.

On Report. Writ oe Entry to recover certain real estate in Portland. Writ dated July 24, 1858. Plea ”nul disseizin,” with a brief statement” denying plaintiff’s title and right of possession, and claiming that the title and right of possession were at the commencement of the suit in tenant’s wife, with whom and by whose assent he occupied them.

On Exceptions to the rulings of Dayis, J., and on motion to set aside the verdict, as against the weight of evidence Case to recover damages for an injury to the plaintiff by the upsetting of a stage wagon, in which she was a passenger, and of which the defendant was alleged to be the owner. As no question of law was raised upon the motion, a report of the evidence, which was very voluminous, is omitted.

<p>"Where a policy of insurance provides that the “said loss or damage shall be paid -within sixty days after due notice and proof thereof, in conformity to the conditions annexed to this policy,” no action can be maintained thereon until the notice is given, and the required proof is furnished.</p> <p>Until such notice is given and proof furnished, the claim is contingent, and the company cannot be charged as trustees of the insured in an action commenced after a loss, but before notice and proof.</p>

On Exceptions to the rulings and instructions of Davis, J. The first case was a search and seizure process, and the second was the libel of the liquors seized. The cases are stated in the opinion.

Bill in Equity to determine the legal construction of the will of Edward Crafts, which contains the following provisions : — 1. I give and bequeath unto the Congregational Foreign Missionary Society one-third part of all my personal property. 2. I do also give and bequeath unto the American Peace Society one-third part of my personal estate. 3. I also give and bequeath unto the suffering poor of the town of Auburn one half of the remainder of my personal estate.

On Eeport. Assumpsit upon a receipt given to plaintiff’s intestate to release certain property from an attachment made by him. The case is stated in the opinion.

Reported from Nisi Prius, Tenney, C. J., presiding. This was an action of assumpsit against tbe defendants, as makers of two promissory notes, which were dated January 30, 1856, each of which was for the sum of $500, and was payable to the order of Reuben Flanders, in one year, with interest, and by him indorsed. On the day after the date of the notes, Flanders sold them to one John Tufts, a brother of the plaintiff.

<p>In an action, brought on the statute, for aiding a debtor in the fraudulent transfer of certain property, an amendment will not be allowed of an additional count alleging a fraudulent transfer of other property under which the damages claimed were not in any part embraced in the first count.</p> <p>The taking of a negotiable promissory note by the debtor, in settlement of a debt due him on account, even if done to prevent its attachment upon trustee process, is not a “ transfer ” within the meaning of that statute.</p> <p>Nor would a transfer of the note, by indorsement, render the indorsee liable; for the note could not be attached, or sold on execution.</p> <p>Where the name of a party was inserted in a transfer, as vendee, without his knowledge, if he afterwards ratified it, by accepting it, the transfer, until then inoperative, was perfected; and, if fraudulent, he is liable.</p> <p>No transfer of a share of the capital stock of a bank will secure it from attachment, until it is entered on the books of the corporation “ showing the names of the parties, the number of shares and the date of the transfer,” according to sec. 11, c. 46 of B,. S.</p> <p>To hold the transferee liable under the statute, there must be proof that the transfer was thus recorded.</p> <p>But this cannot be shown by the verbal statement of the cashier, if objected to; his testimony that “ he made the transfer on the books of the bank ” is inadmissible.</p> <p>In order to bring any ease within the statute, the sale should not only be consummated so as to be valid between the parties, but it should bo so made as to be valid against all persons, except on the ground of fraud.</p>

Exceptions from the ruling of Appleton, J. This was an action on the case, against the defendant, as an officer, for neglecting to attach property on the plaintiff’s writ against one Leadbetter, and was submitted to Appleton, J., presiding at Nisi Prius, reserving the right to exceptions. The direction indorsed upon the original writ was, Mr. Officer, attach suf’t,” but was not signed. The officer made no return of property attached.

<p>Where a claim, on which an action had been brought, was settled, before the term of the Court was begun, and the plaintiff wrongfully entered the action, took judgment and execution, and long afterwards assigned the execution, the Court, exercising its equity powers, will grant a writ of injunction, to relieve the debtor in the execution against its enforcement.</p>

<p>As to th.e rule of the common law, wliicli required that judgment in an action upon a bond shall be for the penal sum named, and the modifications of it by various statutes.</p> <p>In this State there is now no existing statute which authorizes a judgment in an action of debt upon bonds, Ssc., differing from the common law rule, unless poor debtor’s bonds, in certain cases, are exceptions.</p> <p>In an action on a replevin bond, in which the penalty is more than 'twenty dollars, if the damages assessed be less than that sum, the plaintiff will have full costs, although the action was not commenced before a justice of the peace.</p>

On Report from Nisi Prius, Tenney, C. 'J., presiding. This was a special action on the case, founded on certain provisions contained in c. 117 of the R. S. of 1841. ■ It appears, from the report and the documentary evidence that makes part of the case, that, in the year 1852, the inhabitants of Thomaston recovered judgment against the defendant town; the execution that issued thereon was put into the hands of an officer to be collected.

On Exceptions to the adjudication of Tenney, C. J., presiding at Nisi Prius. Assumpsit upon a promissory note of which the following is a copy:— Solon, April 17, 1848. Yalue received, we jointly and severally promise to pay Elisha Coolidge, treasurer of the ministerial and school fund for the town of Solon, or his successor in said office, fifty-two dollars and seventy-six cents, on demand, and interest annually. (Signed) Samuel Eaton, Attest,-Benj. F. Eaton. Jona.

Trespass on tbe case, for carelessly setting a fire which spread and burned trees upon the plaintiff’s woodland. The defendant pleaded the general issue. The amount of damages assessed for the plaintiff not exceeding twenty dollars, it was contended by the defendant that only one quarter of the amount of damages could be legally allowed as costs to the plaintiff. Appleton, J., presiding, ruled that the plaintiff was entitled to full costs. The defendant exeepted.

On Exceptions from JWisi Erius, Appleton, J., uresiclHlg. ° ,. ,. xiiis was an action of debt upon a recognizance to prosecute an appeal from a judgment rendered by a justice of the peace. The appeal was entered at the first term of the Supreme Court which was holden after the appeal was taken. The appellant neither filed nor furnished copies of the papers in the case.

On Report. Trespass for taking a yoke of oxen. The evidence was that, previously to March, 1858, the plaintiff’s residence was included in the limits of school district No. 6, in Fair-field; that, at the annual meeting in March, 1857, a committee was appointed to re-district the school districts in the town; that, at the annual meeting in March, 1858, the report of that committee re-districting the town was accepted, but without any written recommendation of the municipal…

On Report from Nisi Prius, Tenney, C. J., presiding. Trespass. A witness called by plaintiff testified that he received verbal directions from the defendant to seize property of the plaintiff; he accordingly seized the wagon in controversy, which was worth, perhaps, §65, but which he sold for §55.

<p>A poor debtor, before commencing his disclosure, delivered to his attorney a sum of money, as a payment in part of the amount he was indebted to him, and also for the payment of the justices’ fees, for taking the disclosure; held, that the justices were authorized to discharge him, notwithstanding the creditor claimed the money.</p> <p>This is distinguishable from the case of Butman v. Holbrook, 27 Maine, 419, the appropriation of the money having been made before the disclosure was commenced.</p>

<p>Trespass. From the report of the evidence, offered at the trial, it appears that the plaintiff was the collector of a school district tax, and, by virtue of his warrant, seized a horse as the property of one Lord, who refused to pay his assessed proportion of the tax. The property was taken by the plaintiff on the 27th day of October, 1859 ; on the day following, he gave public notice for its sale on the third day of November, — on which day, and before the hour appointed for the sale, the defendant, as a deputy sheriff, having a writ of replevin in favor of said Lord, took the horse from the plaintiff’s possession; whereupon, this action was commenced.</p> <p>At Nisi JPrius, Appleton, J., presiding, questions were raised by the counsel of the defendant, involving the legality of the tax, and of the proceedings of the plaintiff under his warrant. For the purpose of presenting the questions to the full Court, the presiding Judge overruled the objections, and a verdict was rendered for the plaintiff. The defendant excepted.</p> <p>At the argument on the exceptions, the counsel of the defendant, I). D. Stewart,. submitted the case upon the point, that, by the terms of the warrant and by the statute, the property should have been sold at the expiration of four days after its seizure. After that time, the plaintiff could not legally sell. The keeping of the horse seven days, at least, before the day of sale, was an unauthorized act, and the plaintiff thereby became a trespasser áb initio.</p>

On Report. Writ of Entry to recover certain land which the demandant claimed by virtue of a levy of an execution thereon, against the tenant and one Bean. The officer in his return stated, that one of the appraisers was chosen by the creditor, one by himself, and the third by himself, the debtor refusing to choose any person.” Other questions were raised in the case but did not become material in its determination.

On Exceptions to the rulings of Appleton, J. •This was an appeal from the decree of the Judge of Probate, appointing a guardian for the appellant, upon the petition of the plaintiffs. In this Court the appellant demurred to the petition, the demurrer was joined by the plaintiffs and overruled by the presiding Judge, and the decree of the Judge of Probate affirmed; whereupon the appellant excepted. The contents of the petition are sufficiently stated in the opinion.

Bill in Equity to reform an alleged mistake in a deec The case was heard upon bill, answer and proof. The facts proved, and questions of law raised by the counsel, are stated in the opinion.

<p>If a person has a home established in a town in this State, and goes therefrom for a specific purpose, intending to return when that purpose shall be accomplished, without making any other place his home for an indefinite period of time, his residence is not changed.</p> <p>Otherwise, if he takes up his abode in another place, without any present intention to remove therefrom.</p> <p>If he acquires a new residence, and leaves there to go to his old home, with the deliberate intention of not returning, and of abandoning his new residence, then goes to the town of his first residence, as to his former established home, and is there on the first day of May, having no intention to go to reside in any other particular place as a home, he is subject to taxation in that town. But if he leaves in such case with the intention of returning, and not to abandon his new home, and that intention is retained by him on the first day of May, he is not a subject of taxation in that town.</p> <p>The statement by the presiding Judge, during the progress of a trial, of a proposition, as a rule of law in relation to the admissibility of evidence, though erroneous, is no ground for exception, unless it appears that the party was prejudiced by it.</p> <p>The declarations of a person, in connection with his departure from a place, are not admissible in his favor, unless accompanied by some act of starting or preparation to start.</p>

Bill in Equity. The case, heard on bill, answer and proof, is sufficiently stated in the opinion. The description of the premises in the notice of foreclosure is defective, and therefore, the proceedings are void. Spring v. Haines, 21 Maine, 126; Ford v. Frshine, 45 Maine; Holbrooh & ais. v. Thomas, 38 Maine, 256. 2. The foreclosure was waived by McLellan. This may be done by á parol agreement, or it may be inferred from the acts of the mortgagee. 2 Hill. onMort., 17, 18.

On Report. Assumpsit by the plaintiff, as deputy sheriff, against the defendant for breach of an agreement to keep property seized on execution.

On Report. Trover for a quantity of timber. The facts are stated in the opinion. 1. There was an implied license to Russell to cut this timber, he having bid off the township at a regular land salé, and having been allowed to operate thereon, without disturbance by the State. 2. If the State had a lien on this timber, it was waived by the seizure of timber cut thereon subsequently, and by the Land Agent’s then giving orders not to seize this. 3.

<p>On Report.</p> <p>The case is stated in the opinion.</p> <p>A person confined in jail without means of support, unless confined on charge of crime, is a person destitute, found in the town in which the county jail is situated. Oargill v. Wiscasset, 2 Mass., 547 ; Adams v. Wiscasset, 5 Mass., 328 ; Paris v. Hiram, 12 Mass., 262; Taunton v. Westport, 12 Mass., 355; 8ayward v. Alfred, 5 Mass., 246; Alna v. Plummer, 4 Maine, 262.</p> <p>[The arguments for defendants did not come into the hands of the Reporter.]</p>

Bill in Equity. The bill sets .forth, that Samuel A. Bradley, being the owner of township No. 1, range 5, in Somerset county, commonly called West Middlesex township,” conveyed to George Evans, October 19, 1836, 4000 acres in common and undivided; that Evans conveyed the same to the plaintiff, November 24, 1850; that, on petition of the plaintiff, commissioners appointed by the Supreme Court first set off 960 acres, being lots reserved in the original grant for public uses,…

Complaint for alleged Contempt of Court. In September, 1861, the plaintiff corporation applied to the Supreme Judicial Court, then sitting in Somerset county, Tenney, C. J., presiding, and represented that the defendants, being authorized by their charter to connect their road with that of the plaintiffs, had elected to do so, and had so connected their road, by consent of both corporations, both roads having their rails laid at the same guage of five feet and six inches…

On Exceptions to rulings of Goodenow, J. Indictment against the respondents for larceny.

<p>Ontfhe final settlement of an account in the Probate Court, former settlements may be opened, for tbe purpose of rectifying mistakes.</p> <p>Where a mistake is made in the settlement of such an account, the course is to apply by petition to the Judge of Probate for its correction, or to state the amount claimed in a new account; unless, when the mistake is discovered, the party has a right of appeal to the Supreme Court.</p> <p>But where an alleged mistake has been discovered, and the party has petitioned the Judge of Probate for its correction, and, upon a hearing, the Judge has decided that no mistake has been made, and no appeal is taken from his decree, the party is concluded thereby, and cannot again try the question.</p>

On Exceptions to the rulings of Appleton, J. Indictment for perjury, alleged to liave been committed at a trial before a justice of tbe peace. The case is stated in the opinion.

<p>The burden of proof is upon a party alleging the payment of a mortgage, although the mortgagees have not been in possession for more than twenty years after the notes secured thereby became due, if, during that time, the premises are in possession of a tenant for life under a superior title.</p>

On Exceptions to the rulings of Goodenow, J. Petition for a writ of certiorari to quash the proceedings of the respondents, as justices of the peace and of the quorum in taldng the disclosure of Joseph Berry, under the laws for the relief of poor debtors. The presiding Judge granted the writ, and respondents excepted. The case is sufficiently stated in the opinion.

<p>On Exceptions to the rulings of Good enow, J.</p> <p>Assumpsit against the defendant as indorser of a promissory note. The case is stated in the opinion. The verdict being for the plaintiff, the defendant excepted to the refusal of the presiding Judge to give the requested instructions.</p>

On Exceptions to the rulings of May, J., and Motion to set aside the verdict. No questions of law arose upon the motion.

On Exceptions and Motion to sot aside the verdict, as being against the evidence. Eeal Action. The evidence was all reported, but, as no question of law arose on the motion, it is not necessary to state it in this report. The demandant claimed under a mortgage from one Frith to Vaughan, and an assignment thereof to one Parks, in 1821.

On Report. Debt upon a bond given to the plaintiffs as assessors of the town of Phipsburg, to obtain the discharge of Lowell from arrest on a warrant for the collection of taxes. The defendants offered to show that, during the year in which the tax was assessed, Lowell was not an inhabitant of Phipsburg, nor liable to taxation therein, but the presiding Judge excluded the testimony.

<p>A receipt for goods attached, signed on Sunday, but not delivered until Monday, is a valid contract.</p> <p>Receipters are liable for the property described in the receipt,'if attached upon the writ, although not the property of the debtor.</p> <p>The objection .that such a receipt, under seal, cannot be the foundation of an action of assumpsit, is waived, if the defendant fails to notice it in his specifications of defence, and does not object to its introduction, when offered in evidence.</p>

Reported from Nisi Prim, May, J., presiding. This was an action of debt on a poor debtor’s bond for release from arrest on execution.

On Exceptions. Petition for review of an action under c. 94 of the laws of 1859. The petition alleged that, upon the trial of the original action, Randall testified falsely to material facts. Upon the hearing, at Nisi JPrius, the presiding Judge finding, as matter of fact, that he was not satisfied that the testimony referred to was false, denied the writ,, and the petitioner excepted.

On Report. Assumpsit for assessments upon a note given to the plaintiffs by the defendants by their firm name, Z. Hyde & Co.” The defendants claimed that the assessments were void because advance notes” had been cancelled before these assessments were made. The case is stated in the opinion.

<p>When, as between two judgment debtors, one of them is bound to pay the entire judgment, the other may procure the creditor to levy the execution upon the property of the former, or in default of property, to arrest him, without impairing the -validity of the execution.</p>

<p>Reported from JSÍisi Prius, Goodenow, J., presiding. This was an action of debt upon a poor debtor’s bond.</p>

Exceptions from the ruling of May, J., at JSTisi Prius. This was a petition por partition of certain premises in West Bath. In the petition, Charles Crooker and persons unknown were named as co-tenants. The respondent, James A. Crooker, claiming to be sole seized of the premises, subsequently appeared and was allowed to defend.

This was an action op dower in behalf of Jane Bubier, the present wife of Otis Bubier, as the widow of Thomas Grover, deceased, to recover her dower in lands held by the defendant.

<p>On Exceptions to the rulings of Kent, J., presiding. Assumpsit to recover the sum of $928, put into the hands of the defendant by one Hall, to he paid to the plaintiff.</p> <p>The evidence of the plaintiff tended to show that he and one Hall were the assignees, in an assignment, under the statute, of Elmos & Tebbetts; that Hall, or the firm of which he was a member, collected the sum of $928, of the assets of Elmes & Tebbetts, and, in order to secure the plaintiff for his liability for this sum, Hall, or his firm, in compliance with a previous agreement with the plaintiff, put certain property into the hands of the defendant for the purpose of paying this sum to the plaintiff; and that the defendant afterwards promised the plaintiff to pay him this sum; that Hall also became insolvent and made an assignment, but that this property was put into hands of the defendant before Hall’s assignment was made.</p> <p>The defendant’s evidence contradicted in some points that of the plaintiff, and tended to show that the assignment of Elmes & Tebbetts was not valid in law; that the property was put into the hands of the defendant to secure him for liabilities he had incurred; and that any interest Hall had in it passed to Ms assignees before the defendant made the promise relied on.</p> <p>It appeared, also, that the defendant was surety upon the bond of the plaintiff, as assignee, and that the plaintiff, at the time of the trial, had not paid over to the creditors the whole amount which had come into the hands of the assignees, and been ordered by the Judge of Probate to be paid to the creditors.</p> <p>The counsel for defendant contended that the action could not be maintained, and requested the presiding Judge to instruct the jury that, if the defendant, supposing that property sufficient to pay said sum had been placed in his hands by Hall, made said promise, which property proved entirely insufficient therefor, he is not bound thereby; that, if the plaintiff and Hall were joint assignees of Elmes & Tebbetts, and that Hall, as one of said assignees, had received from the assets of said firm the said sum of $928, which sum he had placed in the hands of defendant to be paid to plaintiff as assignee aforesaid, and said defendant promised plaintiff then to pay him, the defendant would not be legally bound to pay it unless Hall was discharged from his liability to the creditors of Elmes & Tebbetts for that amount; that, unless Hall was released from his liability as assignee, the agreement of defendant to pay, (if made,) is without consideration and void; that, if Hall, Snow & Co. made an assignment of their property before the plaintiff assented to the placing of the property in the hands of the defendant, such property would pass by said assignment, and the defendant would not be liable on his promise to pay plaintiff, if such promise was made.-</p> <p>All of which were refused, except as given in the general instructions, which were as follows :—</p> <p>That, if the jury were satisfied that Hall, one of the assignees, or the firm of which he was a member, had in his or their hands $928, collected for, and belonging to the assignees of Elmes & Tebbetts, and that he or the firm did put into the defendant’s hands property sufficient to secure the payment of this sum, and with the condition that he, Hitchcock, was to pay it to the plaintiff, the other assignee, and the defendant assented to this, and received the property for that purpose, and if, afterwards, he promised the plaintiff, to pay him that amount, and did, at the time of the promise and as a part of it, request plaintiff to wait for a short time for payment, which was assented to by plaintiff, and he did wait, that this would be a binding contract on sufficient consideration; that, if Hall told plaintiff that he would put property into defendant’s hands to pay plaintiff this debt, and plaintiff assented to the proposition before the assignment of Hall, Snow & Co., and, if the property was put into his hands accordingly, before the assignment, and defendant agreed at the time of taking it to pay this debt to plaintiff, and afterwards promised plaintiff to pay, as before stated, which plaintiff assented to, that defendant could not avoid his liability on the ground that the property would pass to the assignees of Hall, Snow & Co., notwithstanding the transfer to defendant, it not appearing that the assignees had ever made an inventory of, or any claim for the property.</p> <p>The defendant’s counsel also requested the presiding Judge to instruct the jury, that this action cannot be maintained as long as the defendant remains liable on the bond for the acts or omissions of the plaintiff, as assignee of Elmos & Tebbetts.</p> <p>This request was acceded to and the instruction given with the following qualifications: — "If the transfer to defendant was only to secure him on the bond to the Judge of Probate, but if it was, that he was to pay it over to plaintiff, and he promised, as before stated, it could be, so far as this point was concerned.”</p> <p>The defendant did not offer himself as a witness, and there was no evidence offered where he was, or of any reason why he was not called as a witness. The fact that he did not testify in the case was commented upon by the counsel for the plaintiff, in his argument to the jury; and the presiding Judge, in his charge to the jury, remarked upon this, and charged them, that it was the privilege of parties to testify in their cases, and it was optional with them to do so; and the fact that the defendant had not testified in this case might properly be considered by them.</p> <p>The verdict was for the plaintiff, and the defendant excepted. Pie also filed a motion to set aside the verdict as being against evidence, but no question of law was raised in discussing it.</p> <p>1. The promise, if made, was a conditional one, to pay the plaintiff if there was any property left after the defendant’s liabilities were paid.</p> <p>2. There was no consideration for the promise, unless T-Ta.11 was released from his liability as assignee. If Hall still continues liable, he is in no better condition, than if this sum should not be paid;</p> <p>If this amount had been paid to the plaintiff and he had failed to pay it to the creditors, Hall would still be equally liable.</p> <p>3. The property in defendant’s hands passed to the assignees of Hall, inasmuch as the evidence shows that the defendant made no promise to the plaintiff, until after that assignment.</p> <p>4. The remarks of the Judge in relation to the defendant’s not testifying tended to mislead the jury. -The plaintiff could have called him, but the jury must have understood that the defendant could not be compelled to testify.</p> <p>1. There was privity between plaintiff and defendant. Arnold v. Lyman, 17 Mass.,- 400; Hall v. Marston, 17 Mass., 505; Dearborn v. Paries, 5 Maine, 81, and cases cited.</p> <p>2. The consideration was sufficient and the promise is not within the statute-of frauds. Dearborn v. Paries, cited above; Brown v. Atwood, 7 Maine, 356; Hilton v. Dins-more, 21 Maine, 410; Todd v. Tobey, 29 Maine, 219 ; Maxwell v. Haynes, 4 Maine, 559.</p> <p>3. The first requested instruction was substantially given.</p> <p>4. The plaintiff assented to placing the property in the hands of the defendant, before Hall made his assignment.</p>

Reported from JSfisi Prius, May, J., presiding. This was a process of forcible entry and detainer, commenced before the Judge of the Municipal Court for the city of Bath. The respondent pleaded the general issue, with a brief statement alleging title in Nancy White, under whom he justified as her tenant and servant. The case was thereupon brought into this Court, as the statute provides.

On Report. Debt to recover ten semi-annual dividends on ten shares of preferred stock, at the rate of six dollars per share, amounting in the whole to six hundred dollars, from January 1, 1852, to January 1, 1857. Plea nil débet. The declaration was made a part of the case, but it is sufficiently-stated in the opinion to show the questions raised upon it. The plaintiff offered in evidence two certificates of stock,' in the defendant corporation.

On Report. Assumpsit in which the plaintiffs claim to recover the amount of certain coupons specified in the writ, which were attached to sundry certificates of debt, purporting to have been issued by the defendants, in aid of the Kennebec and Portland Railroad ■ Company, under the Act of August 17, 1850. Plea, the general issue, with a brief statement alleging payment. The defendants also filed specifications of defence, upon which, however, no question arose.

<p>The acceptance of negotiable paper for a debt, and giving a receipt in discharge thereof, are an extinguishment of the original liability, unless it appears that the parties did not so intend.</p> <p>When the debt of a corporation is settled by its negotiable note, and that note, when due, is taken up by another note, and nothing appears to show the intention of the parties, the date of the second note must be treated as the time when the indebtedness of the corporation accrued, so tar as relates to the liability of its stockholders. '</p> <p>A judgment against a corporation is binding upon the stockholders till -reversed, and is conclusive upon them in a subsequent action against them, by tlio same plaintiff.</p> <p>Section 18 of c. 76 of the Revised Statutes of 184-0 was repealed by the Act of 1855 (e. 169, § 1) ; andii seems that by this repeal § 30 of the same chapter is rendered ineffectual.</p> <p>Manufacturing corporations do not come within the provisions of c. 271 of the laws of 1856.</p> <p>But c. 109 of the laws of 1844, (which is not repealed by the Act of 1856,) applies to them.</p> <p>The liability of stockholders under the Act of 1844 is restricted, by the Act of 1856, to the amount of their stock.</p> <p>By the second section of the “ Repealing Act,” in the Revised Statutes of 1857, liabilities which had accrued by force of previous statutes were preserved, and can still be enforced. ’</p> <p>No amendment to a declaration can be allowed, which introduces a new cause of action.</p> <p>A declaration against a stockholder for tie debt of a corporation, containing only the allegations to bring the case within the provisions of c. 271 of the laws of 1858, cannot legally be amended, against the defendant’s objections, so as to bring the case withm e. 109 of the laws of 1844.</p>

On Report. Action of Dower. The marriage, the seizin of plain- ' ° 1 tiff’s husband, his death, and the demand, were admitted. The tenant relied upon a release of dower; the facts in relation to which are stated in the opinion.

Action oe the case against tlie defendant for throwing ground bark from his tannery, in Albion, into the stream on which the tannery is situated, which bark, it is alleged, was carried down by the stream, and deposited on the plaintiif’s land below, to the damage of the plaintiff. Plea, the general issue, with a brief statement, claiming a right in the defendant to throw bark from his tannery into the stream, and denying that he had committed any unlawful act.

<p>Assumpsit on a promissory note given by the defendants, dated Nov." 12, 1858, for one hundred dollars and interest, payable in eight months.</p> <p>The defendants pleaded the general issue, but relied on usury in the contract declared on for defence.</p> <p>It was admitted that the sum loaned to them by the plaintiff was ninety-four dollars, which was the sole consideration for the note; that in July, 1860, the plaintiff indorsed on the note, "received six dollars” ; but that neither of the defendants paid anything, or knew of said indorsement until afterwards.</p> <p>The facts were agreed upon, and submitted to the law Court to render such judgment as the case required.</p> <p>cited Wing v. Dunn, 24 Maine, 128; Oummings v. Blake, 29 Maine, 105 ; Hankerson v. Emery, 37 Maine, Í6; Lumberman’s Bank v. Bruce, 41 Maine, 505 ; Knight v. Frank, 48 Maine, 320.</p> <p>The plaintiff, having admitted that the note was usuri.ous, can recover only $94 and legal interest, without costs, and must pay the defendants’ costs, unless something has occurred since the suit was commenced to change the result.</p> <p>In July, 1860, the plaintiff indorsed six dollars on the note, without the knowledge of the defendants, and without their having paid anything. But, under our present statute, an indorsement of the full’amount of excessive interest on a note tainted with usury, cannot, after suit brought, avail the plaintiff against the penalty for instituting such action.</p> <p>Our usury law has been essentially changed. In 1820, a usurious contract was void. In 1841, the party reserving or talcing usurious interest could recover no costs, but must pay costs to the other party, provided the damages were reduced by the oath of the defendant by reason of such usurious interest. In 1846, "provided the damages are reduced by proof of such usurious interest.” In 1857, "and in such action, if the damages are reduced by proof of such excessive interest by the oath of the party or otherwise,” &c.</p> <p>The decisions under the usury law have been principally made under the law of 1841 and 1846. Gummings v. Blake, 29 Maine, 105, was made when the statute required the damages tÓ be reduced by the oath of the party. Hanker son v. Emery, 37 Maine, 16, is wholly unlike in its facts to the present case, and was decided under the law of 1846. Neither of these cases throws any light upon .the true construction of the last statute.</p> <p>After sundry decisions, the Legislature saw fit to change the law in many particulars, as will be seen by comparing the earlier and later statutes.</p> <p>Chapter 45, § 2, E. S. reads, — "In any action brought on any contract whatever, in which there is directly or indirectly taken or reserved a rate of interest exceeding that established in section 1, (being six per cent.,) the defendant may, under the general issue, prove such excessive interest, and it shall be deducted,” &c. And the concluding portion of the same section, reads thus, — "And, in any such action," that is, one brought on a contract thus tainted,(the plaintiff brought suit to recover the whole of a note admitted to be usurious,) "if the damages are reduced by proof of such excessive interest by the oath of the party or otherwise," &c.</p> <p>The word "otherwise,” has a wide meaning, whether in the statute it refers to other modes of proof than the oath of the party, or to the reduction of damages in any manner in such an action.</p> <p>If it refers to other kinds of proof merely, the admission of the fact of usury by the party, or of a fact from which the Court must necessarily infer usury, is the very highest and most satisfactory kind of proof; and this proof, too, is furnished at the trial of the cause. If the term "otherwise” refers to a reduction of the damages, below what the plaintiff demanded in such tainted action, then- of course an indorsement of the excess will not save the plaintiff from the statute penalty.</p> <p>It appears to have been the design of the Legislature, in the latest statute, to make,usury a losing business, and that whenever a party should resort to the law to recover what the law said he should not have, he should not be able to resort to any shifts by indorsement of the amount reserved, to escape the legal penalty. The term " otherwise ” effectually closes the door against all such attempts to escape.</p> <p>But if the Court should be of opinion that a party may purge the tainted contract, after a suit upon it is instituted, by an indorsement of the excess, still, in this case, the plaintiff has failed to make an indorsement equal to the excess. The case finds the indorsement of $6 was not made until July, 1860. Although no date is affixed to the indorsement on the back of the note, the facts agreed have fixed the time when it was actually made. If this note had been pure in its inception, and upon it was found an indorsement of a certain sum without date, without any evidence as to the time of payment, it would be deducted as of the date of the note; but, if evidence was introduced that it was actually made at a subsequent period, the holder would be entited to recover the whole sum and interest to the time of the actual payment, and the balance after deducting the sum indorsed. And in this case, if it is to be determined on the principle invoked by the plaintiff, that the damages are reduced by the voluntary indorsement of the plaintiff, still, the indorsement is not large enough, as he sued for the entire note, and did not remit the $6, until the note had been running twenty months. The indorsement is to be deducted at the time it was actually made. So that in any view that may be taken of the law, the diminution of the amount of the note by the indorsement is not equal to the excess of interest reserved therein. In any event, the judgment must be for a less sum than sued for, the defence being usury alone, which brings it within the provisions of the statute and makes the plaintiff liable to pay costs.</p> <p>In a case under a prior statute, the Court say: —"The provision of the statute was intended >as a penalty to prevent the reserving and taking usurious interest, and is not to be evaded.” Warren v. Coombs, 20 Maine, 144.</p> <p>contended that the indorsement having been made without date, it is to be construed as made at the date of the note. The actual time of payment may be shown, but here was no payment. The indorsement was evidently made to show the true consideration for the note.</p> <p>The plaintiff, after the indorsement, claims only $94, and legal interest thereon. It is admitted that he is to recover this, which is all he claims. IIow, then, are the damages reduced by proof?</p> <p>The time of the indorsement is of no consequence. The date of the payment controls. When was the payment made, which this indorsement is to acknowledge? It was at the date of the note, and must be so allowed.</p>

<p>Where an Act has been passed dividing a town, incorporating a part of it into a new town, and providing for the proportional support of the paupers then ' chargeable, it does not affect the settlement of persons afterwards becoming chargeable, but all questions relating to the settlement of the latter must be determined by the general law.</p> <p>If, in case of such a division, the two towns, by agreement, apportion the paupers by name between them, and support them accordingly, this does not affect the settlement of the paupers, although the contract may be binding.</p> <p>If one of such paupers, who has gained his settlement in the territory not embraced in the new town, is, by the apportionment, assigned to said new town for support, not only does his legal settlement remain in the old town, but his children born after the apportionment have their settlement there also, until he or they acquire a new one.</p> <p>Overseers of towns bound by law to relieve persons in distress may do it in such manner as they deem best, acting reasonably and in good faith, by contracting for their board or otherwise.</p> <p>Towns called upon to supply paupers are entitled to tire avails of their industry, and are only required to contribute when that industry and the means of the paupers fail to afford a comfortable support.</p> <p>Where one town was by agreement bound to support the pauper and his wife, and the'settlement of his children was in another, the latter may be held to • pay for supplies furnished for the children, although the father, by his industry, is able to support himself and wife, provided he can do no more.</p>

On agreed statement. Writ oe error to reverse a judgment of this Court. It was agreed that, in the original action, (which was an appeal from the judgment of a magistrate,) the appellant produced no copy of the record of the magistrate, and thereupon, when the case was reached in order for trial, the following, entry was made on the docket: — Action dismissed for want of papers.

On Exceptions to the instructions of Hathaway, J. * Assumpsit. The case is stated in the opinion. The verdiot being for the plaintiff, the defendant excepted.

Writ oe Entry upon the demandant’s own seizin. The demandant put in evidence an office copy of a deed from Crosby Barton to Thomas W. Smith, dated February 5, 1824, conveying the demanded premises; and traced his title through sundry mesne conveyances from said Smith.

<p>A devise to A “ of tlie income of fifteen hundred dollars to be paid to her annually, to be put at interest by the executor, and to be equally divided among the children after her decease,” is a devise of the net income after deducting taxes and other expenses.</p> <p>When the account of an executor has been allowed by the Judge of Probate, and no appeal is taken, it cannot be revised in the Supreme Court.</p> <p>In the settlement of such an account, the Judge of Probate may rightfully allow charges to correct errors in former accounts.</p> <p>When income, payable annually, is devised to a person, over payments may be regarded as advances, and deducted from the income subsequently accruing.</p>

Bill in Equity to redeem a mortgage given by one Fowler to Henry L, Nichols, and by him assigned to the defendant Smith, and by him assigned to the other defendants — the plaintiff being .the owner of the equity of redemption. The case is stated in the opinion.”

On Report. These were actions of trover. The facts are stated in the opinion. It was not necessary that the mortgage should be recorded at Norridgewock. The statute only requires a record of it in one town, i. e., the town where the mortgager resides.” A record of the mortgage in the town in which either mortgager resides, is a full compliance with the statute.

On Exceptions. Before pleading, the respondent filed a motion to quash the indictment, but it was denied, and ho excepted.

On Exceptions to the ruling of Rice, J. Assumpsit against the defendant as administrator de bonis non of one Tylor. The action was entered at the August term, 1858, when the defendant appeared specially. The action was continued from term to term till the August term, 1859, when the defendant, on the first day of the term, and within less than a year after his appointment, filed an account in set-off.

<p>The venires for grand jurors need not direct the constables in wliat manner they should notify the meeting in their towns for drawing the jurors.</p> <p>It is well, although not indispensable, that the constables should state in their returns what notice was given.</p> <p>The burden of proof, that the notice was defective, is upon the one alleging it.</p> <p>A constable may be allowed by the Court to amend his return upon the venire according to the facts.</p> <p>A person drawn as a grand juror, without any notice to the inhabitants of the town, and with only a verbal notice to the municipal officers, has no authority to act as such, although duly sworn.</p> <p>The mere presence of a stranger at the finding of an indictment, does not render it void, if he does not act.</p> <p>But if an unauthorized person participates in the proceedings, the indictment is void, though twelve competent grand jurors concurred in finding it.</p>

This was an action of trover against the late sheriff of Kennebec county, for the conversion of one half of a schooner, alleged to be the property of Abby, wife of Augustus E. Winslow. After filing specifications of defence, the defendant, by leave, filed an amendment of the specifications, denying the marriage of the plaintiffs.

Trespass quare clausum. The defendants pleaded the general issue, with a brief statement justifying their acts as performed under the orders of the city council of Gar-diner. The proceedings of the city council, authorizing the extension of the street, were in evidence. It was admitted that a part of the street in question crossed the plaintiff’s land, below high water mark, but not below low water mark.

<p>When it appears that a petitioner for partition, prior to the present process, had given a power of attorney to one- to “ sue for and recover any right or interest” he might have to property in Maine, “or to compromise the same with' parties representing adverse interests; ” and that said attorney had given a deed of the premises of which partition is asked to the present respondent,.— this is not sufficient to bar the rights of the petitioners, unless it is shown that the grantee represented “ adverse interests,” and that the deed was given for the purpose of compromising the claims of the petitioners.</p>

On Exceptions to the rulings of Rice, J. Carver and Lunt were tried upon the following indictment.

On Exceptions, from Nisi Prius, Rice, J., presiding. This was an indictment against the respondent under the statute of 1858, as a common seller of intoxicating liquors. The testimony offered by the government tended to prove more than six distinct sales of intoxicating liquors by the respondent.