Volume 5 — Maine Reports

Tins case, which was a complaint for flowing tin; lands of the complainant by the respondent’s mill-dam, [ Vid. Pol. I. p. 300.] came again before the Court, at the last October term in this county, for trial of the issue whether the respondent had good right to erect the dam, and flow the land of the complainant, without the payment of any damages therefor.

This case, which was a writ of entry upon a mortgage deed with covenants of general warranty, ike, made, by one Levi Sawyer to the demandant, and is reported in 3. Greenl. 461, was again tried at the last October term in this county, before Preble J. upon the issue of nul disseisin. The mortgage deed was dated June 10,1817, and recorded April-1, 1819.

After the judgment in this case was arrested for the badness of one of the counts, [See 4 Greenl. 226.] the plaintiff, in the same term, moved for a venire facias de novo ; which the defendant opposed, claiming a judgment for his costs. J. Wherever a good cause of action is legally stated in one or more counts, and the jury have found the facts to be true, by a general verdict, the judgment is not to be forever stayed, because of some bad counts in the writ.

This was an action of trespass for cutting the plaintiff’s trees on • • his lot No, 4, in Denmark.

<p>. This was a cómpiaint, under the sfátute reguláting mills, against the owners of a mill, for flowing the lands of the colhplainant, in the lot No. 10, in the 3d range, in Paris. The respondents pleaded 1st, that the complainant was not seised of the land ; — 2d, that they had good right to keep up this dam, and flow the land supposed to be flowed, without payment of damages, by virtue of an agreed composition with the original owners of the land, and one Lemuel Jackson the original builder of the mill, under whom the respondents claimed; —3d, that Jackson, and his grantees, had good right to flow the land without payment of damages ; — 4th, that the flowing caused no damage. These pleas were traversed, and issues joined on the traverses.</p> <p>At the trial of the three first issues, the title of the respondents to the mill lot No. 7, in the 3d range, on which the mill stood, was admitted as derived from Lemuel Jackson. The respondents offered in evidence the records of the original proprietors of the township No. 4, now Paris; from which the following facts appeared. The township was granted June 11,1771 on the usual conditions of effecting a speedy settlement. Jan. 5, 1774, the proprietors voted to record their names on their several lots on a plan of the township, now lost; and chose a committee to consider how they would dispose of or improve the mill-lot No. 7, and voted to clear a road to it; which was done in June following. In April of the same year they voted to grant the mill-lot & 100 dollars, to any person who would undertake to build mills thereon within a year, and keep them in repair ten years, complying with certain other conditions respecting tolls. In August following they voted to grant a “ farther encouragement” to any person undertaking to build a mill or mills in the township. Again in 1780 they renewed the offer of the mill-lot, adding two other lots, to any person who would erect a saw-mill and a grist mill within 20 months ; and appointed a committee to give deeds upon the performance of the conditions. And in 1783 it appeared that Lemuel Jackson, under whom the respondents claimed, had received a deed of the lots, and 150 dollars in money, upon giving his bond conditioned to build the mills in the manner stipulated, and keep them in repair ten years from March h, 1785.</p> <p>The respondents also proved that the lot No. 10, was drawn to the original right of Benjamin Stowell, who was an original proprietor, and acted with the proprietors till after the mills were built; some years after which he conveyed it to the ancestor of the complainant, They also shewed the great inconveniences to which the early settlers were subjected from the want of mills, and their importance to the settlement and value of the lands ; and proved that no damages had been demanded by any proprietor of lands flowed by means of the same dam, except in the present instance.</p> <p>The complainant proved that the lots in Paris were drawn, and the lot No. 10 assigned to Benjamin Stowell, in severalty, in 1773, before any vote respecting mills was passed by the proprietors.</p> <p>Upon this evidence Weston J. before whom the cause was tried, directed a verdict for the complainant upon the three first, issues, subject to the opinion of the court upon the sufficiency of the evidence .to support the issues, on the part of the respondents; the parties agreeing that if it famished, a sufficient bar to the process, the complainant should become nonsuit; otherwise, tire cause should stand for a trial of the fourth issue, and for any ulterior proceedings under the statute.</p> <p>argued that as Benjamin Stowell was one of the proprietors, and also owned the lot now belonging to the complainant, when the mill-lot was granted to Jackson, the grant'of this last lot, with the appurtenances, must, as to Stowell be taken to pass the right to flow, as appurtenant. Any other construction would operate as a fraud on the grantee ; as it would give him the mill, and at the same time withhold from him that which was indispensably necessary for its use. It was evidently the intention of the proprietors, as it was obviously their interest, to encourage the erection of mills, by granting every' possible facility and inducement. And had the question of the right to flow without payment of damages been directly under their discussion, it cannot be doubted that they would have secured it to the grantee by the necessary legal muni-ments. No probable reason can be given why they should have spent so many years in overtures for the building of mills, and evidently so much desired it, increasing their pecuniary offers till a contractor appeared, and finally paying him a large sum of money ; and yet have reserved to themselves the right to prosecute him for damages not then in existence, or even in prospect; or at best but in remote possibility, and of the most shadowy character. On the contrary the plain inference from their whole record-book is, that the right to flow without impeachment was considered as an easement, passing with the mill-lot, and that the liability to receive damage in their lands was regarded as nothing in comparison with the advantages of their situation near the mills. Adams v. Frothingham 3. Mass. 252. .Leonard v. White 7. Mass. 6.</p> <p>were stopped by the Court; whose opinion was delivered as follows, by</p>

This was assumpsit for the support of one Joseph House and his family, who were paupers; and it was tried before Preble J: upon the general issue.

The plaintiffs in error, having been incorporated with power to divert the course of Saco river by cutting a canal across one of its bends, at one of their meetings holden Dec. 30, 1825, chose a committee “ to settle, in behalf of said proprietors, with claimants for damages or loss of land, by reference or otherwise.” On the same day the defendant in error made and signed his demand in writing against the proprietors, pursuant to the statute, claiming of them a thousand…

This was a scire facias commenced in October 1822, upon a judgment recovered at the Court of Common Pleas, in this county, on the second Monday in January 1822, by the plaintiff against the defendant as administratrix of the estate of William Burton, Jr. ; setting forth the delivery of the execution to an officer, and his return that he had made demand upon the administratrix, who refused either to pay the judgment, or to disclose estate of her intestate wherewith it might…

<p>Where B. and W. lent their names each-to the other, as indorsers of accommodation notes, negotiated at a bank, and also had mutual dealings ; and a third person contracted to settle the account of B. with W: “if there should be any thing due W. from him, as well for any notes W. held of his on” —“as also for certain notes which are in the bank, which W. is responsible for, by reason of lending or exchanging each others names as security for the other” ; — it was held that W. by the terms of this contract, could not claim the amount of his liabilities for B.; but only the balance of them, after deducting the amount of JB’s liabilities for him..</p>

This was a general indebitatus assumpsit for the balance of an account annexed to the writ, being $,'2415,59. It was commenced Feb. 7, 1825, and was tried at the last September term, before the Chief Justice, upon the general issue. The only item disputed, on the debit-side of the account, was in these words: — “ Oct. 23, 1824.

This was a writ of right, brought by the heirs at law of Samuel Thompson, to recover a small parcel of island and rock, being that part of the island on which the tenants’ toll-house stands, and adjacent to the same; and was tried before the Chief Justice, upon the issue of the mere right. The tenants set up no title in themselves, but relied on a disseisin of the demandants’ ancestor, before the thirty years mentioned in the writ; which was sued out in July 1825.

This action, which came before the Court upon a case stated by the parties, was assumpsit for the support of two paupers; in which the principal question was whether the Resolve of March 19, 1821, legalizing certain marriages, was constitutional, so far as it affected the settlements of the parties and their issue.

<p>if a lot be granted fronting on, and bounded by a river, the side lines are to be continued to the main stream, though they thereby cross a point form ed by the junction of one of its branches with the principal river.</p> <p>It is no valid objection to a report of referees, that one of them had formed a previous opinion upon the case submitted to them, if his mjnd appears to have been still open to conviction, and no imputation of unfairness rests upon him.</p>

In an action of indebitatus assumpsit between these parties, the original plaintiff, now defendant in error, sued for $2262,77, being the amount of sundries charged in his account annexed to the writ, during a period of about two years. The original defendant filed his account in offset, pursuant to the statute, claiming an allowance of $'2347,46.

' This was an action of debt, for the penalty given by Stat. 1821, ch. 92, against the defendant, as constable of the town of St. George, for having on the 10th day of August 1825, served a certain writ of execution issued by Joseph Sprague, Esq. a Justice of the Peace for this county, in favor of one Ira Gibbs, against one Henry Knox Murphy ; and for having on the 30th day of July 1825, served another writ of execution issued by the same magistrate in favor of one John…

This action was for money had and received by the defendant, to the use of the plaintiff, as treasurer of Monmouth Academy. It was commenced in October 1823; an d wastie d before Weston J. upon the general issue, and the plea of the statute of limitations. It appeared that in December 1813, one Ileald purchased of the Trustees of the Academy a tract of land, for which he gave his promisory notes, payable in four successive years, with interest annually.

<p>In this case, which was a petition for partition, the seisin of the petitioner was denied by the respondents. It appeared that one Jer-miah Smith, who formerly owned the whole tract, conveyed it by aa absolute deed, in fee, to Colburn, Stevens, and Flitner, his sureties, for their indemnity ; and they mortgaged it to the Gardiner bank for money obtained for his use ; which was afterwards paid by Colburn and Stevens, Flitner having become insolvent. Smith bad no de-feasance, but only a written promise from the grantees, to reconvey to him, on payment of the money for which they were liable, which he had never done. The petitioner, knowing the facts, attached and levied on Flitner's part of the land holden in common.</p> <p>Many other facts were introduced into the case, which are here omitted, for the clearer understanding of the case as actually decided by the Court; all the material facts upon which the decision is founded, being stated by the Chief Justice. The verdict was for the petitioner.</p>

This was a writ of entry, upon the seisin oí' the demandant, to recover possession of a piece of land with a fulling-mill thereon.

The defendants in this case, having purchased of the plaintiff a tract of land, and mortgaged it back to him to secure the payment of the purchase money ; they afterwards conveyed to him in fee a small parcel of the same premises, by deed of general warranty, with the usual covenants.

This was an action of replevin for a carding machine. The defendant pleaded that it was the property of one Solomon Bangs ; and that he, as a deputy sheriff, attached it Oct. 25, 1824, on a writ in favor of one Cyrus Bangs against said Solomon. The plaintiff traversed this allegation of property, affirming it to be in himself, on which issue was taken.

<p>II" a creditor extend his execution on land mortgaged for more than its value, he not in fact knowing the existence of the mortgage, though it had bee» long on record ; he may have an alias execution, and satisfaction out of other estate of the debtor; the case being within the meaning of Stat. ' 1823, ch. 210.</p> <p>Though a plea admit the registry of an adverse title deed, yet it may, in proper cases, well aver the want of actual knowledge of the existence of the deed ; and the fact will be well pleaded.</p> <p>Where a scire facias is brought to have a new execution upon a judgment of the Court of Common Pleas, the land extended upon not having belonged to the debtor ; and judgment is rendered in this Court for the plaintiff; the Clerk issues an alias execution from the Court of Common Pleas to satisfy the former judgment in that Court; and an execution from this Court for the costs of the scire facias.</p>

<p>This was an action for money received by the defendant, as administrator de bonis non, of the estate of William Howard, to the use of the plaintiff; and also upon an indebitatus assumpsit by the defendant, in the same capacity.</p> <p>The defendant pleaded, first, that the cause of action did not accrue to the plaintiff within six years next before the suit.</p> <p>To this the plaintiff replied that his action was for wages as a mariner on board the brig Venus, in the year 1797, on a voyage from Bath to the island of Trinidad, and thence back to the United States, of which brig the house of James Davidson and Company, were owners, and the defendant’s intestate William Iiowdffd was surviving partner of the firm ; — that the brig was captured during the voyage, and condemned by authority of the King of Spain ; so tint no freight was earned, and the plaintiff’s remedy was suspended; that by the provisions of the late treaty with Spain, the defendant, in his capacity of administrator, preferred his claim for the wrongful capture and condemnation of the brig, to the commissioners appointed for that purpose ; which was allowed, to the amount of 8000 dollars, and was paid by the United States to the defendant, July 1, 1824, for and on account of the detention and condemnation of the brig, and the loss of her freight; — whereby the plaintiff’s claim to his wages revived, and the defendant, in his said capacity, promised to pay.</p> <p>The defendant rejoined that the brig was not captured on her outward, but on her homeward voyage, and that the plaintiff returned to his home in this State, Sept. 10, 1797; — that for the portion of his wages accruing for the outward voyage and half the period of her stay at Trinidad, the plaintiff’s cause of action, if he had any, existed against the owners of the brig on that day, and might have been prosecuted against them at any time within six years next following ;• and as to the portion of wages for the rest of the period till her capture, protesting that none were due, he denied that he received of the United States any compensation whatever for or on account of the same, or any money designed or intended by the government to be appropriated by the defendant, in his said capacity, to the use of the plaintiff.</p> <p>The plaintiff surrejoined that the sum allowed and paid by the government of the United States, was a compensation to the owners of the brig, as well for the loss of freight, as for the wrongful capture and condemnation; and that the defendant received that sum, so allowed and paid, and still retains it, not administered.</p> <p>To this surrejoinder there was a general demurrer.</p> <p>Secondly, the defendant pleaded that William Howard, his intestate, died April 10, 1810; — that on the 20th day of August, in die same year, Samuel Howard was duly appointed administrator on his estate, and gave bonds and published notice thereof, as the law directs, specially setting forth the proceedings; but that the plaintiff did not commence his action within four years after the acceptance of the trust by the administrator, though he continued in shat office during the whole term.</p> <p>To this the plaintiff replied, stating the nature of his demand, and the capture and condemnation of the brig, as before, whereby his remedy was suspended, and could not be enforced during the life time of Samuel Howard, the administrator. -</p> <p>The defendant rejoined, that the brig was captured on her homeward voyage; that for all wages accruing on the outward voyage, the plaintiff might have had his remedy against the owners, on his return to the United States, in September, 1797; — and that, as to wages accruing from and after the lapse of half the period of her stay at Trinidad, protesting that none were due, the plaintiff did not, at any time within three years, or within the term of four years after the original grant of administration to Samuel Howard, file his claim in the Probate office in the county of Kennebec, where the administration was granted, to the end that the Judge of Probate might have directed the administrator to retain in his hands sufficient assets to answer the demand at its maturity, according to the statute in that case provided.</p> <p>The plaintiff surjoined that for the term of four years after the original grant of administration, his claim was suspended by reason of the capture and condemnation of the brig, and did not revive until after the expiration of that period.</p> <p>To this also the defendant answered by a general demurrer.</p> <p>insisted that the replication to the second plea was bad, as it neither denied that the term of four years had elapsed, nor did it confess and avoid it. This limitation of suits against administrators is introduced, not merely for their benefit, but for that of heirs and creditors, and it is a peremptory bar. The administrator cannot avoid it, and bind the estate by a new promise. Pqrkman v. Osgood 3. Greenl. 17. Brown v. Anderson 13. Mass. 201. Thompson v. Brown 16. .Mass. 172. Emerson v. Brown ib. 429. Ex parte Allen 15. Mass. 58. Ex parte Richmond 2. Pick. 567.</p> <p>The suspension of the claim did not prevent the plaintiff from filing it in the Probate office ; in which case he might have pursued the remedy given by the statute ; not against the administrator, but against heirs and devisees, to whom the money may have been paid over.</p> <p>The question probably intended to be presented, does not arise in the case ; since the plaintiff has chosen to sue the defendant in his capacity of administrator. Against him he can have no other remedy than such as existed against the intestate. But as the intestate never received any money for the claim, no action, by the plaintiff’s concession, could have been sustained against him ; or, if any ever existed, it is now barred by the statute. The defendant received no money but such as belonged to the estate. Had he preferred a claim for all persons concerned, and received the money as their trustee, the case would have presented a different question. But it is not in that character that he is now sought to be charged.</p> <p>The plaintiff had two remedies for his wages; and but one of them is lost. The present suit is not an attempt to revive the personal claim against the owners; but is in the nature of a process in rem. it was suspended on the disappearance of the vessel; and revived again, and attached itself to the fluid which was awarded in the vessel’s stead, and which is the vessel itself, as to all substantial purposes of the lien for seamens’ wages. The administrator, therefore, received the money in trust for all who were interested in the property it represented; and he is bound to distribute it accordingly. Appleton v. Crowningshield 8. Mass. 340. Heard v. Bradford 4. Mass. 326. Brooks v. Dorr & als. 2. Mass. 39. SjtaJford & ah. v. Dodge Si als. 14. Mass. 66. Hooper v. Pcrhy 11. .Mass. 545.</p> <p>No action lies against the heirs; for they have received no money. Nor will the Judge of Probate ever require the administrator to distribute to them the money claimed by the plaintiff. It is not a subject of Probate jurisdiction, for it does not belong to the estate. And for the same reason it cannot be retained by the administrator, under Stat. 1821, ch. 52, sec. 27; which speaks only of demands created by express contract, which fall due on a day certain, and this not till after four years from the grant of administration. But here was no treaty in existence when that period expired ; nor any reason for authorizing the administrator to retain the money, nor for requiring the heirs to give bond.</p> <p>But if the case were one which might, under certain circumstances come within the statute, and give a remedy against heirs; yet that remedy is not matured. For no action lies against an heir, during an open administration. While the administrator officially exists, he represents the estate,' and he alone is responsible. 12. Mass. 395. 1. Dane's Abr. ch. 29. art. 4. sec. 12. It was in that capacity that he received the money, and now insists on retaining it; but it was in trust for the plaintiff, and he is liable de bonis propriis. White v. Swain 3. Pick. 365. Moody v. Webster ib. 424. Or, for the purposes of justice, the intestate may be presumed to have promised that whenever freight should be recovered, he would pay the seamen their wages. 1. Dane’s Abr. ch. 29. art. 17. 2. Dane’s Abr. ch. 57. art. 2-</p>

In this action, which was assumpsit, and came before the court upon a case stated by the parties, the question was upon the settlement of one Maritta Tribou, an illegitimate daughter of one Polly Snell. Polly Snell, the mother, was the daughter of Elijah Snell, who dwelt and had his settlement in Bridgewater, in Massachusetts. She was born in 1780, and was non compos mentis, as was also her daughter, the pauper.

This was an action of trespass against the sheriff of this county, for taking certain goods, claimed by the plaintiff. At the trial before Weston J. it appeared that one John Reed Jr. had fraudulently obtained, under pretence of fair purchase, a large quantity of goods from divers persons in Portland, the particulars of which are stated in the case of Seaver v. Dingley, 4. Greenl. 306.

Assumpsit by the plaintiffs as payees of a promissory note, against the cfefendant as maker. The note was dated Oct. 27, 1817, in the usual form of a joint and several note, payable in fifty-seven days with grace, signed by Benjamin Adams, with the names of two persons underneath, as sureties, payable to the plaintiffs, and discounted at their bank. Before it was offered for discount the defendant wrote his name across the back of it.

This action, which was assumpsit for money had and received, came before the court upon a case stated by the parties, containing the following facts. The assessors of the town of Gardiner, for the year 1825, assessed the property of the plaintiffs, for State, comity, town and school taxes, in the sum of $104,67 ; which was their due proportion, if their property was liable to taxation. This sum wras levied by distress.

In this action, which was assumpsit against the defendants as collateral guarantors of a promissory note, and came before the court upon a case agreed by the parties, all the facts are clearly stated in the following opinion of the court. to the point that the remedy was not lost by any laches of the plaintiff, cited Hunt v. Bridgham 2. Pide. 581. Pain v. Pochard 13. Johns. 174.

<p>The domicil is not affected by the forming; of an intention to remove, unless such intention is carried into effect.</p> <p>fn order to have received supplies as a pauper, constructively, so as to prevent the operation of Stat. 1821, ch 122, they must have been furnished to one under the care and protection of him whose settlement is in question, and for v-diose support iie is by law responsible.</p>

<p>A judgment in trover, if execution be sued out thereon, though without satisfaction, is a bar to an action of trespass afterwards brought by the same plaintiff, against ¡mother person, for taking the same goods.</p>

<p>This was a petition for partition, preferred at June term 1823, by the heirs oí Benjamin Lincoln, claiming two undivided third parts of certain lands in Hampden. The respondent pleaded bis own sole seisin of the lauds described in the petition, which he claimed as the grantee of Henry Knox.</p> <p>At the trial, before Weston J. at the sittings after June terra 1825, the petitioners gave in evidence an indenture dated Aug. 25,1801, between Henry Knox, Benjamin Line,oln and Henry Jackson, of the one part, and Thomas L. Winthrop of the other part; by which the lands described in the petition were conveyed to Mr. Winthrop, upon condition that if Knox, Jaclcson and Znncoln, their heirs or assigns, 'Or any of them, should elect to pay to Winthrop $5757.63 on or 4efore Sept. 25, 1801, with interest from March preceding, the deed should be void.</p> <p>And it was therein further covenanted that if, within one month after Sept. 25, 1804, Winthrop should convey the same lands in fee to Knox, Jackson and I/incoln, they should be bound, jointly ■ and severally, to pay him on demand the same sum of $5757.63, with the interest before mentioned.</p> <p>The petitioners further gave in evidence a deed duly executed and tendered by Winthrop to Knox, Jackson and Lincoln, Oct. 8, 1804, conveying to them the same lands in fee simple, and expressing his election to make the conveyance and demand the money mentioned in the indenture; which deed was not then accepted, nor the money paid.</p> <p>It was further shewn by the petitioners that Winthrop entered into the lands Feb. 20, 1802, for condition broken; that the money due to him was paid by Lincoln, April 30, 1807; that Jackson, on the 14th of August 1807, released to, Lincoln all his interest and estate in the lands in question; and that Winthrop’s deed of recon-veyance which had been refused, was accepted in September 1807.</p> <p>On the part of the respondent, it appeared that the whole Waldo patent, of which the premises in question were a part, was mortgaged by Knox to Lincoln and Jackson, Oct. 17, 1798, to indemnify them against certain notes of hand which they had indorsed as his sureties, but not including the debt due to Winthrop. It also appeared that Knox conveyed the lands, of which partition was deman'ded, to the respondent, in fee, by deed dated March 4, 1805, and recorded May 6, 1806; under which deed he entered, and had ever since remained in possession. Lincoln died May 8, 1810 ; and there was no evidence of any entry by the petitioners.</p> <p>It was also proved that Jackson and Lincoln, by deed dated July 5, 1806, assigned and transferred to Thorndike, Sears and Prescott, the mortgage of Oct. 17, 1798 given to them by Knox, with all the lands therein described; except such parts thereof as had been sold by Lincoln and Jackson; who were empowered, by that mortgage, to sell and convey a fee simple estate in such parts of the mortgaged premises as they chose, and apply the proceeds to the payment of any notes which they had indorsed for Know. By this assignment it appeared that Lincoln and Jackson' had not been saved harmless against the notes mentioned in the mortgage. But it did not appear that they had ever conveyed any of the lands, except by their joint deed with Knox to Winthrop, before mentioned, and the assignment to Thorndike, Sears and Prescott'.</p> <p>Upon these facts the Judge directed the jury to return a verdict for the petitioners; upon which judgment was to be entered, if, in the opinion of the court, they were seised, as they had alleged in their petition. Otherwise, it was to be set aside.</p> <p>contended that the title became absolute in Mr. Winthrop, by the lapse of three years after his entry for condition broken in February 1802. His subsequent release, of Oct. 8, 1804, took effect from its delivery in September 1807, and enured to the benefit oí Lincoln, as to the third part he had purchased of Jackson, as well as the other third; thus vesting in him the two third parts, of which partition is sought. When Knox conveyed to Bussey, in March 1805, he had no estate in the land, the whole title being then absolute in Winthrop; and therefore the grantee took nothing by that deed, except in the other lands described in it, which Know might lawfully convey. He might then have entered under his deed ; but this entry cannot be extended, by relation, beyond his legal rights; certainly not constructively to disseise the ancestor of the petitioners. And as the case does not find that there was any actual disseisin, it follows that they were lawfully seised of the lands described in their petition; and the plea of sole seisin in the respondent is not supported.</p> <p>It is not necessary to allege a lawful sole seisin, against all the world. The grantee of a disseisor, coming honestly to the estate, is as well entitled to this plea as if he had the whole estate. This mode of remedy was never intended ■ to apply, except where the fact of tenancy in common is . clear; never to settle titles in the abstract, as mere rights; for if so, the plea of sole seisin would be wholly taken away.</p> <p>The conveyance from Knox, Jackson and Lincoln, to Winthrop, was to be a mortgage or not, as the latter should elect. His election was shewn by his reconveyance of Oct. 8, 1804, which was intended to extinguish it, as a mortgage. In consequence of this election to treat it as a mortgage, the conveyance to the respondent might well operate as an assignment of the right in equity of redemption. Nor was the mortgage to Winthrop ever foreclosed; for though he entered in 1802, yet in 1804 he renounces all his claim to the land, electing to receive the money, and to rely on the personal security of the debtors. By this deed the parties were reseised of their prior estates ; Knox .as mortgagor, and Lincoln and Jackson as mortgagees ; and the interest of the latter could never descend to their heirs, unless foreclosed. Smith v. Dyer 16. Mass. IS. The deed from Jackson.to Lincoln in 1807, conveyed nothing, because the grantor and grantee were disseised by Bussey. Without an actual seisin in the petitioners, this process cannot be maintained. Bonner v. The Proprietors of the Kennebec purchase 7. Mass. 475. At least, the peculiar provisions of our statute, called the betterment act, require that such seisin shall have been continued till within six years next before the filing of the petition; since otherwise the respondent must losé the value of his improvements made on'the land.</p>

<p>This was a writ of entry, in which the demandant claimed an undivided moiety of one tenth part of all the lands in Bangor, Hamp-den, JYewburg and Hermon, except one hundred acres reserved for-each settler, by certain resolves, and 3900 acres in Hermon, claimed by R. G: Arnory. It was tried before Weston J. upon the issue of mil disseisin.</p> <p>The demandant claimed under the patent granted to Beavchamp and Leverett; whose title having descended to John Levereü, he parcelled the patent into ten sitares in common, and granted them, in 1719, to certain persons, thenceforth called the Ten Proprietors. These proprietors conveyed two thirds of their land, in twenty shares, to Brenton, Waldo, and others, who were called the Twenty Associates; and afterwards conveyed to Waldo 100,000 acres, retaining the like quantity themselves. Of these Ten Proprietors, William Hunt, father of the demandant, was one; who conveyed his share to John Pitts and others, by deed of Feb, 21, 1787, and to John Jackson, by deed of May 4, 1787; both which titles the demandant acquired by purchase.</p> <p>It appeared that, in 1772, a survey was made by one Chadwick; and May 33, 1773, an indenture was executed by the Ten Proprietors on the one part, and by Francis Waldo, and others, representing the Waldo interest, on the other part; by which the latter released to the Ten Proprietors the tract surveyed by Chadwick; and the Ten Proprietors released to the other party, all their interest in the residue of the patent. The lands so surveyed and released to the Ten Proprietors, began at the mouth of Marsh river, at the southeast comer of Frankfort, and ran westwardly, in the southerly line of said town, and upon the same line extended further westward, nine miles and a quarter; thence north, twenty degrees cast, fifteen miles; thence east, twelve degrees south, eleven miles and a half; thence south, one mile and a quarter, to Penobscot river ; thence down the river, to the beginning; and it contained 90,100 acres.</p> <p>The General Court of Massachusetts, by a resolve passed July 4, 1785, proposed to “ confirm to the heirs of the late Brigadier Waldo, others, interested in the grant to Beauchamp and Leverett, a tract of land equal to a tract thirty miles squareand directed a survey to be made, “ beginning at the point of land east of the mouth ofthe river Muscongus, thence extending up said river, according to the course thereof, and thence round by the sea shore, and up the west bank of Penobscot river, so far that a line, stretched across westwardly from the Penobscot to the north end of the first mentioned line, would embiace a territory equal to a tract thirty miles square.”</p> <p>The Waldo patent was accordingly surveyed, and the north, or head line was establislied'on what is now the divisional line between the towns of Frankfort and Hampden, as delineated on Greenleaf’s map of Maine ; thus severing into two parts the tract surveyed by Chad,wick, and released to the Ten Proprietors, leaving only about 42,000 acres of it within the limits of the Waldo patent.</p> <p>A large portion of the Waldo patent, as thus located, adjoining die Muscongus river, was found to be within the limits of the Plymouth patent, which was an elder and better title. To indemnify the grantees for the land thus lost, the General Court, by its resolves of Feb. 17 and 23, 1798, caused to ho surveyed and granted “ to Henry Knox, and others, interested in the Waldo patent,” all the lands remaining the property of the Commonwealth in four townships- lying north of the Waldo patent, being the present towns of Hampden, Bangor, Hermon and JYewburg, excepting 100 acres to each settler. A deed of confirmation of these lands was also executed July 20, 1799, assigning them to Knox and “ all others interested in the Waldo patent.” The lands thus granted amounted to about 48,000 acres.</p> <p>The demandant founded his claim on the -language of the resolves and deed of the Commonwealth, contending that by the terms, “ others interested,” were intended the Ten Proprietors, who had lost their, lands by the Waldo line, and who had an equitable interest in whatever related to that patent.</p> <p>The tenant derived his title by deed from Henry Knox and wife, dated March 4, 1805, and recorded in 1806; and relied on the grant and deed from the Commonwealth to Knox, who, as he contended, was the sole grantee.</p> <p>He also proved, that , on the third day of October 1785, the Ten Proprietors, under one of whom the demandant claims, were an organized corporation, managing their part of the lands then held by them, as a body corporate; and that their share had before that time been released to them, by the other tenants in common of the Waldo patent, to hold in severalty by metes and bounds. At a meeting of the Ten Proprietors, holden JVov. 1, 1785, they voted that the bond presented by the heirs of Brigadier Waldo, for making good all lands that the proprietors might be deprived of, by surveying the patent according to the directions of the General Court, should be accepted; and that William Hunt, their clerk, be authorized and empowered, in their name and behalf, to make and execute a release and quitclaim to the Commonwealth of Massachusetts, ef all their right to any lands contained in the grant to Beauchamp and Leverett, excepting what was contained within the bounds mentioned in- the report of a committee of the General Court, appointed by a resolve of Oct. 28, 1783. The lands demanded were not within these bounds. Such a deed was accordingly made, JVov. 1, 1785.</p> <p>Upon this evidence the counsel for the tenant contended, that the Ten Proprietors having released all their right in these lands, before Hunt conveyed his particular share to Pitts and others, in 1787, nothing passed by this conveyance; and that as no grantee, except Knox, was specially named in the grant from the Commonwealth, the whole estate passed to him alone, by that grant.</p> <p>The demandant offered to prove that nearly all the title of the Ten Proprietors had passed into the hands of Gen. Knox, in his lifetime, whose interests were adverse to. his own; and that therefore he could not institute an action in their name, for liis own benefit ; and he contended that the proprietary, as to the four townships, was extinct, having done no act respecting them since they were granted by the Commonwealth, and all conveyances of lands in those townships having been made by Gen. Knox, and afterwards fey the tenant, in their private capacities, as sole owners of the estate. This proof was rejected.</p> <p>The Judge was of opinion that whatever might be the merits of the demandant’s claim, he could not maintain this action in his own name; but that the title of the Ten Proprietors, if they had any, to any part of the four townships, should be established by an action in their name; and a verdict was taken for the tenant, subject to the, opinion of the court upon the demandant’s right to recover in this action.</p> <p>contended that the objection to his right to sue alone, should have been taken in abatement; and that in all actions, except those on contract, the want of other parties was cured by pleading over. Ken. Propr’s. v. Call 1. Mass. 485.</p> <p>The statutes creating tenants in common quasi corporations, are only enabling statutes, neither taking away, nor abridging any of their common law rights. They may sue in their corporate character, for an injury to the common property ; or each oue may, at his election, pursue his separate remedy at common law. Monumoi beach v. Rogers 1. Mass. 163. They may have partition among themselves: Mitchell v. Starbuck 10. Mass. 5 ; — and the seisin of one is the seisin of all, even of the corporation. 7. Mass. 475. 15. Mass. 156. On the death of a proprietor, his heirs and devisees become both tenants in common, and members of the corporation. His grantees acquire the same right by his deed. 2. Dane’s Abr. 698, If therefore the rights of tenants in common, after they have incorporated themselves under the statute, remain at common law as before, it results that one may sue another for his portion of the land, in any case of actual ouster. Higby v. Rice 5. Mass. 344. Knox v. Jenks 7. Mass. 488. And the demandant has no other remedy; for it does not appear that the Ten Proprietors have acted as a corporation within twenty years; and it is to be inferred that they have* not, since their title became chiefly vested in Gen. Knox. The corporation is therefore extinct, within the meaning of the statute.</p> <p>' As to the release from the proprietors to the Commonwealth, it does not effect the question; it having been intended only to enable tire Commonwealth to make the subsequent grant which is the basis of the demandant’s claim.</p> <p>denied the right of one member of a corporation of this sort to sustain a real action against a stranger. The lands are held by the corporation, which possesses all the rights of the several members, except the right to have partition at their pleasure. And as the corporation is proved to have existed, and does not appear to have made final partition of its lands more than ten years since, it must be supposed still to exist, and therefore should have brought this action.</p> <p>But if the corporation is extinct, then its members are tenants in common ; and the present tenant is one of them, by his deed from Knox. Upon this ground the demandant cannot recover, there being no evidence of actual duster. Doe v. Prosser Cowp. 217.</p> <p>But the Ten Proprietors had no title to the lands in question. The whole of Beauchamp and Leveretts patent was divided; part of it called the Waldo patent; part assigned to the Twenty Associates ; and part to the Ten Proprietors. The loss which happened by interfering with the Plymouth patent, fell upon the part assigned to the others. The Ten Proprietors would have borne none of it, as their land did not extend beyond nine miles and a half from Penobscot river; and hence they were not entitled to any part of the lands granted to make up this loss. Nor have they lost any of their just rights on the northern side. Their claim is wholly under Beau-champ and Leverett, the line of whose patent came up no farther than the north line of Frankfort ; falling short of every part of the land now demanded. Besides, these proprietors, took another and satisfactory indemnity for all they might lose, in the bond of Brigadier Waldo, to which alone they elected to resort, relying on his personal responsibility.</p> <p>If they have any just claim, it can only be enforced in a court of chancery; for at law, the conveyance from the Commonwealth was to Knox alone he being the only grantee named in the deed. Courts of law do not recognize grantees by description.</p> <p>Williamson, in reply, said that a grant to heirs eo nomine, was good at law; 12. Mass. 447 ; and by parity of reason, the present demandant might take as one of the “ persons interested,” mentioned in the de,ed from the Commonwealth. The bond too, from Waldo to the Ten Proprietors, was conditioned not for the payment of money, but to “ make good all lands” they might lose by the survey ; which can be satisfied only by admitting them to be interested, pro rata, in the grant to him.</p>

<p>Assumpsit against the defendants, as the makers of a promissory note of the following tenor : — “ Bangor, July 28,1824. For value received we jointly and severally promise James Irish, State’s agent, or his successor in office, eighty-three dollars and thirty-three cents, in one year from date, with interest after.” This note was given for logs cut on lands of the State, by permission of the plaintiff’s predecessor in office. The plaintiff, at the date of the note, was, and still is the agent of the State for the management and sale of its public lands, under Stat. 1824, ch. 280; and the question was, whether he could maintain this action, in his own name, the note having been given to him in his official capacity, for a quantity of pine timber belonging to the State.</p> <p>referred to Van Staphorst v. Bierce A. Mass. 258. 8. Mod. 116. Hammond on parties,33. note. Msop vr Gaines 10. Johns. 396. Bvjjum v. Chadwick 8„ Mass. 103. . Clapp v. Day 2. Greenl. 305. Fisher v. Ellis 3. Pick. 322.</p> <p>cited Gilmore v. Pope 5. Mass. 491. Niven v. Spikerman 12. Johns. 401. Pigott v. Thompson 3. Dos. '& Pul. 147.</p>

<p>Assumpsit against the defendant as indorser of a bill of exchange for 3000 dollars, drawn by Hutson Bishop of Belfast, on Alfred Curtis of Boston, and by him accepted, but protested for non-payment.</p> <p>It appeared, in a case stated by the parties, that the acceptor had been sued in Boston, and that the plaintiffs had there collected of him the amount of their judgment for the contents of the bill and costs of suit, except a balance of about 150 dollars; which they now claimed of the defendant; together with $49.20 for the customary commissions paid to the attorney for collecting and remitting the money; and damages at the rate of three per cent, on the original amount of the bill, with interest.</p> <p>The defendant, upon the common rule, brought into the court below, the sum of 160 dollars, for the balance due upon the bill, and interest and three per cent, damages on that balance only; which the plaintiffs refused to accept.</p> <p>contended that the defendant ought to pay the commissions paid by them to the attorney in Boston, as they were the ordinary and necessary charges incurred in making a collection wholly for the defendant’s benefit. He also insisted that the plaintiffs were entitled to three per cent, on the whole amount of the bill; which, he said, was given by the statute in the nature Of liquidated damages, for breach of the contract as well in regard to the time, as to the place of payment. Fletcher v. Pyche, 2. P. & E. 32. Lowe v. Peers, 4. Purr. 2226. Grimshaw v. Pender, 6. Mass. 157. 1. Pane’s abr. 420, sec. 1, Stat. 1821, ch. 88.</p> <p>argued that the statute introduced no new principle into the law-merchant; but only extended its rules to certain cases enumerated. The reason of giving damages, in any case, is, to reimburse the holder of the bill his expenses in transmitting his funds to the place where the bill ought to have been paid. But if the funds have actually been placed there by the acceptor, the reason ceases, and with it, the rule itself. As to the costs of the plaintiffs’ proceedings against the acceptor, they are transactions inter alios, with which this defendant has nothing to do. Copj) v. McDugal, 9. Mass. 1.</p>

This was a writ of entry, commenced July 27, 1825, on the se-( isin of the demandant. The tenant, as to a parcel of the land, plead-éd nontenure and a disclaimer, upon which there was no controversy. As to the residue, consisting of two parcels distinctly described by metes and bounds, he pleaded the general issue. At the trial, before Weston J. the tenant proved a good title to orie the parcels defended.

This was a writ of entry, in which the demandants counted on their own seisin, and a disseisin by the tenant j and it was tried on the general issue‘s The title of the demandants was under a mortgage made to them •and registered in 1821, by John Wentworth ; who died in 1823, .having dwelt on the premises from the year ,1801 till his death.

This was an action for supplies furnished to the wife of John Braddock, as a pauper, subsequent to those sued for in the former action between these parties, reported in 3. (Jree.nl. 455. That. cause was submitted to the jury in the court below, upon the evidence contained in a written statement of facts, agreed by the parties ; and it came up on exceptions to the opinion of Perharn J. on the case so stated.

This was an action against the sheriff of this county, for the default of his deputy, in not safely keeping-in his custody certain goods which he had attached in' die suit of these plaintiffs against Kelly &. Coates; so that their execution remained unsatisfied.

Assumpsit on a prqmissory note1 made by the defendant to the-plaintiff, in her capacity of executrix, bearing date May 21, 1823, -and payable in boards on or before Avgust 1, 1824. At the trial, before the Chief Justice, at the sittings after this term, the defendant contended that the note was merged in a submission of .all demands between the parties to certain arbitrators, and .their award thereon.

In a petition for partition of lands, to which the respondent claimed title, under the plea of sole seisin, the title of the petitioner was derived from an attachment of the land March 25, 1824, upon a writ in his own favor against one Stephen Towle; and a subsequent extent of the execution issued in that case, which was made Dec. 22, 1824, within thirty days alter judgment, and was recorded Feb. 8, 1825; but the execution was not returned to the clerk’s office until more…

The question in this case, which was a writ of entry, was whether the provision made by James Boyce for his widow, in his last will, was a devise of a portion of the land for her life, or a bequest of a yearly portion of the issues and income, to he paid by the executor.

This was a writ of entry, and was tried before Preble J. upon the general issue. It appeared in evidence that in June 1779, one Adam Boss caused a certain tract of land, of which the demanded premises were parcel, to be surveyed, the lines and corners to be marked, and the-courses and distances to - be ascertained, the surveyor estimating and certifying the contents as two hundred acres. Ross entered into the tract thus surveyed, and continued in possession till his death.

Assumpsit on a promissory note made by the defendant’s intestate, payable to Maria Cram, alleged to have been then, and still to be, the wile of Jacob Cram the plaintiff. At the trial before Preble. J. it appeared that the marriage of the plaintiff with his reputed wife, if it was legal, was duly solemnized in this county Sept. 3, 1815 ; since which time they had continued to dwell together, and were the parents of a family of children.

This was a writ of entry, in which the controversy regarded the title to certain lands in Parsonsfield, the tenant claiming them under the first or congregational parish or society, whose title he held; and the demandants claiming them as belonging to the town.

<p>If in an action of trespass quart clausum fregit, before a justice of the peace,, tlie defendant justifies under the plea of title in himself, and thereupon removes the causfe,' hy recognizance, into the Court of Common Pleas, where he suffers judgment by default, before issue joined; — this judgment does not estop him from contesting the title of the same plaintiff, in a writ • of entry subsequently brought for the same land.</p>

In this case, which was trespass quart clausum Jregit, the title of the plaintiff was derived by a, deed from the defendant and Henry Smith, as executors of the last will and testament of one Ebenezer Sayward. The deed contained no covenants, except that the gran* tors had good right, and lawful authority, under the will, as executors, to sell and convoy the premises to the grantee.

<p>33y a gfant of land by deed of bargain and sale, “reserving” to the grantor “the improvement of the one half of the premises, with necessary wood for family use, during his own natural life, and the life of his wife H: ,22.” — it was hpld that the estate passed, one moiety to the use of the grantee and his heirs in fee, and the other moiety to the use of the grantor and hip wife for their lives, and the life of the survivor of them, with remainder in fee to the grantee and his heirs.</p> <p>Where, in a deed, a valuable consideration is expressed, to have been paid, phror evidence is not admissible to prove another and different consideration intended, or promised and not performed.</p>

This action, which was debt on bond, came before the court upo» a case stated by the parties, to the following effect.

<p>Debt on bond. The principal defendants, having been taken in execution, applied to a magistrate to be admitted to the poor debt- or’s oath, pursuant to Stat. 1824, eh. 281: whereupon the plaintiff who was the officer serving the execution, proceeded to take this bond, conditioned for their appearance at the appointed day, fee, in the usual form. The bond was taken to the officer himself, in the sum of sixty eight dollars and twenty nine cents, which appeared to be more, by three dollars and sixty eight cents, than the amount of the debt and costs, the latter sum being inserted for the fees of the officer. The debtors lived within twenty miles of the prison and clerk’s office. These facts appearing upon oyer of the condition, the defendants thereupon demurred in law.</p> <p>said that the bond, being given to the officer to procure their release from imprisonment, was void at common law, being for ease and favor, unless it was protected by the provisions of the statute relating to the subject. But he contended that it did not conform to the statute, because it was taken to the officer instead of the creditor 5 and because it was for a sum beyond the amount of the execution and the legal costs arising thereon.</p> <p>1. It is true that the statute only requires that a bond shall be procured, to the satisfaction of the officer, without saying to whom it shall be given; but by the analogy of the law in other cases, it should be given to him for whose benefit it is made.' Lent v. Pad~ elford 10. Mass. 230. This is further evident from the circumstance that the statute gives no authority to the creditor to commence a suit on the bond in the name of the officer; a provision which is always 'inserted where the bond is taken in trust for others; as in the case of official bonds given by executors, administrators, guardians, trustees, sheriffs and constables.</p> <p>2. By referring to the place of residence of the debtors, the court will take notice that it is within twenty miles of the place of return j which was the distance actually computed by the officer. And calculating his fees by this distance, it is evident that he claimed thirty cents more than his legal fees; probably for service of the execution ; which, though a very common charge, is not authorized by law. Our fee-bill, in this respect, is precisely what it was in Massachusetts, at the time of the decision of Commonwealth v. Shed 1. Mass. 227. Sea Boswell v. JDingley 4. Mass. 411. Shattuck v. Wood 1. Pick. 171. The bond, therefore, not conforming to the directions of the statute which requires the addition of only the “ legal costs,” the officer is not excusable for liberating the prisoners, and the bond is void. Winthrop v. Dockendorjf 3. Greenl. 156.</p> <p>Bonds given for ease and favor are not void, unless given to obtain an indulgence not authorized by* law, or for a breach of the officer’s duty. Hence in Morse v. Hodsdon 5. Mass. 317, a replevin bond was held good at common law, though not taken in exact conformity to the statute, and being more favorable to the obligee than the statute prescribes. So in Clap v. Cofran 7. Mass. 101-, which was the case of a gaol-bond given for less than double the amount of the debt and costs. And in the present case, the bond was not given for an unlawful indulgence, but for an enlargement which the officer was bound to grant; and the condition is in the very words of the statute. . If it would have been more regular to have taken it to the creditor, yet upon legal principles it is still a good bond at common law. Burroughs v. Lowder & al. 8. Mass. 380. 381. Smith v. Stoclchridge & al. 9. Mass. 223.</p> <p>But it was properly taken to the officer. The instances in which bonds are taken to persons not directly interested, as in Probate bonds, and the like, are all provided for by special regulations in the statutes. -In the present case the statute is silent; but it provides that if the debtor is not admitted to his oath, he shall be arrested again, and the same proceedings had as if he had never been enlarged on bond. Now, as it is made the officer’s duty to enlarge him on his giving bond, if this bond is to be given up to the creditor, the officer will be destitute of any protection.</p> <p>As to the alleged excess of fees ; the law does not presume it; and without such presumption, the case discloses nothing from which that fact necessarily results. But if it were so, it would not affect the validity of the bond, as an obligation at common law.</p>

<p>The questions in this case, which was assumpsit against the house of Adams & Amory, were raised upon the facts disclosed in the answers of Isaac Emery, one of the persons summoned as their trustees, in a foreign attachment.</p> <p>It appeared that Adams & Amory, merchants in Boston, having become insolvent, made an assignment of their property, May 25, •1826, to Ellery, Sargent and Brooks, in trust for the benefit of the assignees, and such other of their creditors as should become parties to the assignment within seventy days then next. The proceeds of the property, after paying certain preferred creditors, sureties on bonds, and indorsers, was to be applied pro rata, to the other creditors, parties to the indenture; and a release was inserted, of all demands against the principal debtors.</p> <p>On the second day of June 1826, a further agreement was indorsed upon the same indenture, and declared to be a part of the same, reciting that the amount due to the United States, upon custom-house bonds was intended to be inserted in the annexed schedule of preferred debts, but could not previously be ascertained ; but was nojv inserted, in the amount of upwards of 90,000 dollars, and declared to be entitled to preference in payment, over all other debts.</p> <p>On the sixth day of June a further indenture was executed, transferring the property atad the whole trust from. Ellery, Sargent and Brooks, to Jonathan Amory and Jonathan Amory, jun.</p> <p>On the 23d day of May 1826, Emery, the trustee, being indebted to Adams & Amory twenty five hundred dollars, for cash advanced on consignments made and expected, and'they having his goods in their hands, on consignment, to the value of a thousand dollars,they drew on him for twenty five hundred dollars, at sixty days sight, in favor of Isaac Adams of JYewburyjoort. On the 25th of May the drawers inclosed this draft to Emery, requesting him to accept it and hold it subject to the order of the payee, or till he should hear from them again ; and he received and accepted the draft on the same day. On the 23d or 30th of May, they wrote to Emery, informing him that his goods, which had been consigned to them, would be- delivered up, on his forwarding the draft, accepted, to Isaac Adams, the payee. And afterwards, on the latter day, they again wrote requesting him to hand over the draft to Mr. Deshon of his own town, and stating that their assignees, to whom the goods had been transferred among the the rest of their property, would not deliver them to the Messrs. Motley, agreeably to his order, unless the draft was accepted; of which the drawers had not yet been advised ; and did not pretend to control the business.' But before he had time to comply with this request, he was summoned, on the same day, as their trustee, in the present suit. The gross amount due from Emery to them was included among the mass of their property assigned ; and the goods-were sold for whom'it might concern. Formal notice of the assignment of this debt was given by the assignees in about twenty days after the failure.</p> <p>It appeared by affidavits annexed to the assignment, and disclosed "by the trustees, that the property assigned was insufficient to pay the . debts due to the creditors who were parties thereto.</p> <p>1. The assignment, takes effect, from the second of June, when the new agreement was executed ; which acts upon the original like the codicil upon a will, postponing its operation till the date of the codicil. Even a small sum of money thus given, causes the will to pass lands acquired after its date, and before the making of the codicil. Coppin v. Fernyhrough 2. Bro. Ch. Ca. 291. Powell v. Clever, ib. 511. Brownell & ux. v. IP Wolf 3. Mtison 494. In principle tins case is analogous to Denny v. Ward 3„ Pick. 199. where the alteration of a writ, by inserting the name of a dormant partner, after an attachment made, though with the subsequent assent of the debtor, was held to vacate the attachment, so far as a subsequent attaching creditor was concerned.-— It was in effect taking hack the deed, and re-delivering it in another form, and to other uses, an attachment having intervened.</p> <p>2. Court,s of law will not give effect to assignments, whether by operation of law, or by act of the parties, in a foreign jurisdiction, until after the debts of their own citizens are satisfied.1 So are the cases of ancillary administration. Goodwin v. Jones 3. Mass. 517. Selectmen of Boston v. Boyhion A. Mass. 324. Richards v. Dutch 8. Mass. 515. Dawes v. Boyhion 9. Mass. 350. Stevens v. Gaylord 11» Mass. 269. Dawes v. Head 3 Pick. 128. As to the case of bankruptcy, though the English decisions are contradictory, — 3. Ves. & Reame 97, — -yet in this country the question seems alrest. 5. Crunch 289. 3. Pick. 1 33. That the same principle should be applied to assignments by the act of the panics themselves, is intimated in Meeker ®, Wilson l. Gal. 419 ; and expressly decided in Massachusetts, in Ingraham v. Geyer J 3. Mass. 146, If it, were not thus settled by authority, the extreme inconvenience to our own citizens, resulting from giving unqualified effect to foreign assignments, to which they might nev or be able to become parties if they would, ought to induce the court to withhold its sanction.</p> <p>3, The assignment is void for legal fraud, as against creditors not parties to it, they nor being permitted to become so, without releasing their debts. To this point it is admitted that the cases are opposed, Widgery w. Haskell 5. Mass, 144» Harris is, Sumner 2. Pick„ 129. Leaving v. Binkerkoof 5. Johns. Chan. Ca. 329. Hyslop v. Clark 14. Johns. 459,. Austin v. Bell 20. Johns. 442. and Bond v. Smith 4. Dal. 76. support the position. Lippincott v. Barker 2. Binn. 174. and Halcey v. Fairbanks reported in Oliver’s Conv. 573. seem to the contrary ; though in the latter case the arguments of Story J. are against the assignment, the weight of authority only being understood to turn in its favor.</p> <p>It is also void because the time prescribed, beyond which creditors shall not be permitted to come in, is unreasonably short, the debtors having been merchants in very extensive business. On this point it is for the court to fix a rule for itself; and in similar cases courts usually advert to the enactments of the legislature, as affording correct analogies. Thus courts of equity adopt the periods of the statute of limitations ; and in cases like the present it would seem that the period of six months, allowed by law to the creditors of deceased insolvents to bring in and prove their claims, was not an unreasonable rule. Pre-vost v. Gratz6. Wheat. 497. Ricard v. Williams 7. Wheat. 117. Hughes v. Edivards 9. Wheat. 489.</p> <p>4. The drawing of an order in favor of Isaac Adams was no assignment of the debt to him, nor was it payment of the debt, so as to prevent a suit by Adams & Amory for the amount against Emery ; the draft having remained always subject to the control of the drawers, and never having been in possession of the payee. Dennie v. Hart 2. Pick. 204. Lansing v. Gaine & al. 2. Johns 300. Leigh v. Dorsum A.Greenl. 28. Chitty on hills 117.</p> <p>contending, first, that the draft on Emery having been made and accepted before the assignment, the property vested in the payee. It was not necessary that he should have cognizance of the transaction, in order to derive the benefit'of the draft. 2. Stark. 228.237. Powell v. Monier 1. Aik. 612. 1. Esp. 40. Wynne v. Raikes 5. East 520.</p> <p>2. The control reserved by the drawers, was not to retain any property in the draft; but was merely a directory reservation, as the agents of the payee. After the acceptance of a bill, the drawer is the agent of the payee, to whom the property has passed. If this had been the case of goods thus coming to the hands of the agents of the vendee, they could not have been stopped in transitu. Dixon v. Baldwin 5. Bast 175.</p> <p>3. But the control reserved over the bill after its acceptance, being expressed in the alternative, the paramount right to control it belonged to Adams, who was both creditor and payee. It is preposterous to suppose that it was left at the will of the drawers, whether the payee should have the benefit of the draft. Its being left in the hands of the acceptor, gave him no property in it; but he was bound to deliver it to the payee on request, or pay him the value. Nor was it in the power of the acceptor to annul his acceptance. Bentinck v. Dorrien 6. East 200.</p> <p>4. At the time of the service of the plaintiff’s writ the defendants had no existing right of action against Emery, which their creditors could attach. They had previously parted with every shadow of control over the draft, as the agents of the payee, by requiring the acceptor to deliver it to Deshon. This process is nothing more than a direction to the trustee or debtor not to pay over to his creditor. But what could Emery, at the moment of service, have paid over to Adams & Amory, after having accepted their draft in favor of Adams, and thus become his debtor ? The drawers could no longer countermand the direction thus given, and therefore had no longer a claim against Emery. Even before acceptance, the bill was an assignment of the debt, being given for the whole amount of the fund. Mande-ville v. Welch 5. Wheat. 111.</p> <p>Enough appears in the assignment to show that it was made to the honest creditors of the assignors; and if it amounts to a preference, they had a right to make it. So far as the United States were concerned, the assignment only speaks the language of the law, in giving them a priority to all other creditors. Such transactions, having their foundation in mercantile integrity and good faith, it is the interest of all communities to support, and to facilitate in their intended effects.</p> <p>The indorsement of the second of June, so far from being a new contract, was merely in the nature of a further assurance, previously covenanted to be given, to carry the original agreement into full effect. It changed no rights then vested ; it bears no analogy to the codicil of a will, which is liable to perpetual variations, and is ambulatory, so long as the testator lives; but it is an exposition of the previous contract, declaring what was the intent of the parties in making it; and it may well be supported as such, in perfect consistency with the symmetry of the law.</p> <p>If the assignors had a right to make the assignment, and even to pass the property absolutely and instantly to bona fide creditors, preferring whom they would; they had a perfect right to indicate that preference by any rules and conditions they might choose to adopt, and to fix at pleasure the time beyond which certain creditors should be excluded. In this case, however, the period of seventy days was amply sufficient for vigilant creditors in all parts of the United States. The case of deceased insolvents furnishes no correct or safe analogy, as'to the time of proving claims, there being an essential difference between the acts to be performed in the two cases, and also between the modes of performing them.</p>

<p>Towns are punishable by information for not opening public highways newly laid out, as well as for not keeping them afterwards in repair.</p>

<p>This Aas assumpsit by the indorsee against the maker of a prom-sssory note, payable to William Stearns, of Salem, in Massachusetts, and indorsed by bis executrix, who resided in the same town, and whose letters testamentary issued from a Probate Court in that State, to the plaintiff, who also was a citizen of Massachusetts. The maker always resided in this State..</p> <p>' it was tried before the Chief Justice, upon the general issue, and the pica of the statute of limitations; and a verdict was taken for the plaintiff, subject to the opinion of the court, upon the question whether any right to maintain this action was conveyed to the plaintiff, by the indorsement of the executrix. Another question was raised, upon the statute of limitations, but not having been considered by the court, he arguments upon it are omitted.</p> <p>argued against the power of the executrix to convey to the plaintiff a right of action in his own name, on the ground that it facilitated the withdrawing of funds from this State which might be wanted for the payment of debts due to our own citizens ; and that it prevented the setting oif of demands against the testator, and displaced equities. And they said that it went to the virtual repeal of our statute provisions on this subject, so far as personal property was concerned. Goodwin v. Jones 3. Mass. 517. Russell v. Swan 16. Mass. 314. 2. II. Bl, 561. Thompson v. Wilson 2. JY. Ilamp. Rep. 291.</p> <p>contended that as the executor succeeded to all the rights and equities of the testator, with the general power to indorse and thus transfer his negotiable notes; it was essential to the exercise of this right that the indorsee should have all the powers of the payee, including the right to sue in his own name.- Otherwise the note must lose its negotiable character. This right being once vested in the indorsee, belonged to him always, and in all places, by the law merchant. The executor is no longer known as- such, except as having been the medium of passing the property to the indorsee 5 and his authority, under the laws of another State, to transfer the property, and with it the privileges of an in-dorsee, may be proved before this court, as the execution of a power of attorney, or any other act in pais, done abroad. Chitty on hills 108, 111. Rawlinson v. Stone 3. Wils. 1. Wittes 559. Mosher v. Mien 16. Mass. 451. Talmage ». Chapel 16. Mass. 71.</p> <p>But the objection comes too late; it being to the disability of the plaintiff, and not having been taken in abatement, nor by special plea in bar. Langdon v. Potter 11. Mass. 313.</p>

This- .was a suit brought before a justice of the peace, by Prince, as the clerk of a militia company, to recover a fine for neglect of ap-’ pearance at training. The defence was that Winslow was permanently unable to do military duty, and so not liable to he enrolled. But the-justice overruled this defence, because .it was not offered io tbe captain, as an excuse, within eight days.

The question in this case was whether Enoch Waite, the husband of the pauper, had his domicil in Canton, at the time of the passage of Stat. 1821, ch. 122. In May 1818, he went to reside in the family of Dr. Holland in that town; and from that time till May 1825, he continued to reside there, except when absent on excursions and journies, which amounted to about one third of the time.

<p>In this case, which was assumpsit upon promises of the testator,, with the common money counts, the material facts are stated in the opinion of the Court, which was delivered by</p>

<p>In this case, which was a writ of entry, both parties claimed the land under levies of executions against one Houghton, the former owner.</p> <p>The demandant, who was a creditor of Houghton, deduced his title from an attachment of the fee, March 28, 1824, and a regular course of subsequent proceedings, perfected by an extent of his execution upon the land, which was set off as the estate of Hough-ton in fee, in due form of law, May 28, 1825, being within thirty days after judgment; which proceedings were duly registered, and the execution returned.</p> <p>The tenant proved that the same land was mortgaged by Hough-ton to one Larrabee, June 1, 1822, to secure the payment of 850 dollars on or before Juna 1, 1828 ; which mortgage was recorded March 13, 1824. On the 19th of March 1824, all Houghton's right, title and interest in the land was attached at the suit of David Dunlap against him and others j judgment was'recovered in that suit at the June term following; the execution being duly issued, Houghton’s right in equity of redemption was taken in execution July 12, and advertised for sale, and due notice given, being within thirty days after judgment; pursuant to which advertisement it was sold by auction, according to law, Aug. 17, 1824, and a deed of conveyance thereof given on the same day, by the officer, to Mr. Everett, who was the judgment creditor’s attorney. The right in equity, thus sold, not having been redeemed by Houghton, Mr, Everett conveyed the premises to the tenant Aug. 2, 1825, by deed of quitclaim.</p> <p>To rebut this evidence, the demandant produced a copy of a deed from Larrabee to Houghton, dated July 15, 1824, and recorded on the following day. wherein, for the consideration expressed of 150 dollars, he professed to convey to Houghton, by release and quitclaim, all his interest in the land. And he proved that personal notice of the existence of this deed was given to Mr. Everett, by his agent, on the first day of August.</p> <p>He also produced a copy of a deed of quitclaim of the same land from Houghton to the present tenant, dated July 29, 1825; expressly referring to Larrabee’s deed thereof to him above mentioned, to fix the identity of the land, as the same which he held by that deed.</p> <p>The tenant then proved that the deed of release from Larrabee to Houghton was prepared and recorded at Larrabee’s request and expense; that Houghton had then been absent from the State for about two years, and did not return till the autumn of 1824, or the winter following ; that no person was present at its execution but the grantor, the scrivener, and the other subscribing witness; and that alter the registry of the deed, it was returned by the scrivener to Lar-rabee, There was no other evidence of its delivery.</p> <p>Hereupon the tenant contended that it was not competent for Lar-rabee, by these transactions, to defeat the seizure of the right in equity $ by which, and due notice thereof, the rights of the judgment creditor were perfectly vested ; — and that if it was competent for the mortgagee in such a case to dissolve the mortgage at his pleasure, yet having; in the present case, undertaken to do it by a deed of quitclaim, the deed could have no operation till it was delivered, which was not till after the sale of the right in equity. Both these points the Chief Justice, before whom the cause was tried, reserved for the consideration of the court, and directed a verdict to be returned for the deman-dant, subject to their opinion.</p> <p>insisted on these points. 1.That the release of Larrabee to. Houghton was fraudulent and therefore void, as was evident from the inadequacy of consideration, and the other circumstances in proof íespecting it.</p> <p>2. That if it was not void, yet it could not take effect till delivery; which was not till long after the sale of the right in equity by the sheriff. But clearly it could not operate on a creditor without notice; and here was none given till the thirty days after judgment had expired ; so that unless the judgment creditor could still proceed as upon a right in equity already taken in execution, his lien on the property would be gone.</p> <p>3. The Stat. 1821, ch. 60, sec. 1, which preserves the lien of an attaching creditor upon the fee, after a mortgage upon it is discharged, applies only to mortgages actually redeemed, pending an attachment on mesne process. Bnt here was no attachment on -mesne process then pending, but a seizure in execution. Nor was it a redemption by the debtor, but a gratuitous and fraudulent release by the creditor, in his absence, and without his assent. 1</p> <p>4. The proceedings under the sale of an equity of redemption have relation to the time of seizure. But Houghton’s right in equity was displaced by the seizure, and finally transferred by the sale, so that he had nothing, at the time of making the release, on which it could legally operate. Barker & al. v. Parker & al. 4. Pick. 505.</p> <p>The intent of the Stat. 1821, ch. 60, was to place all attaching creditors on equal ground, after the redemption of the mortgage; preserving the lien of those who had attached the right in equity only, and transferring it to the fee. Thus the prior attachment, in either mode, is first to be satisfied. "Upon this ground the seizure in execution, by Dunlap, was but a continuance of his lien created by the attachment; to perfect which he should have extended bis execution on the fee, as soon as the mortgage was discharged.</p> <p>And this discharge was valid. The presence -of the mortgagor ic not necessary to an extinguishment of the mortgage. The statute provides that it may be done in his absence, by the mortgagee, by an entry in the margin of the record. If, instead of going in person, he sends a release, the effect is the same. Whether the money was actually paid, or not, is of no importance, since it was a good release of the debt, by deed under the seal of the creditor ; against whom it is a perpetual bar. And the tenant is estopped to deny this deed, since it is recited in the deed from Houghton to him, as the basis of his title.</p>

This was a replevin, against a deputy sheriff, for 101 boxes of soap, which he had attached as the property of Minchin & Willis ; and a trial was had before the Chief Justice upon the question of property in the debtors. It appeared that the plaintiffs, on the 10th of August 1826, contracted with Minchin & Willis to exchange a quantity of wine, for a quantity of the plaintiffs’ soap, of which the parcel replevied was a part.

ÍN this case, which was trespass quare clausum fregit, the defendant pleaded several pleas, resulting in issues to the country, all of which were found against him, except one; .and judgment being rendered tn his favor for costs, he taxed, among other items, thp fees of the witnesses summoned to support the issues found against Mm. The clerk allowed the costs as taxed; from which decision the plaintiff appealed to the court.

<p>This was an action of assumpsit on a bill of exchange drawn by the plaintiff on the defendant, payable to the plaintiff’s own order, no other payee being named, and accepted in writing by the defendant. The bill was drawn and accepted at Baltimore, August 31, 1826, where the parties then were, though both belonged to Portland, ; and it was not indorsed by the plaintiff. The action was commenced JDec. 7, 1826, for the benefit of Messrs. Lawrence & Co. and Dexter & Almy, as appeared by an indorsement on the writ, who claimed the bill as assignees, and had caused it to be protested for nonpayment.</p> <p>The defendant, at the opening of the cause before the Chief Justice, moved its dismissal from the docket; founding the motion on a paper under the hand and seal of Titcomb, filed at the first term m the court below, in which he disclaimed the suit, forbade its prosecution, and released the defendant from all demands.</p> <p>The counsel for the plaintiff, to shew that the bill was the property of the persons claiming it as assignees, called one Patterson as a witness, who was objected to on the ground of his interest, as developed in the course of his testimony.</p> <p>He testified that the firm of Titcomb & Sumner, of whom the nominal plaintiff was one, having failed in business, the assignees above mentioned, and the firm of Lambert & Patterson, of which the witness was one, being creditors of Titcomb & Sumner, agreed to share equally in the loss and gain of an attempt to obtain payment of thei>’ demands. In pursuance of this agreement the witness followed Titcomb to Baltimore, arrested him there in a suit for a portion of their demands, amounting to about 1400 dollars, and imprisoned him in close gaol. A negotiation was then opened between him and the defendant, who was in Baltimore, which resulted in an agreement that the defendant should give his acceptances for the whole amount of the demands in Patterson's hands, being $2732 21. The bills were accordingly drawn, in the prison, payable to the order of the plaintiff, accepted by the defendant, and by him delivered to Patterson, in presence of Titcomb, and with his consent. The notes against Titcomb & Sumner were at the same time delivered by the witness to the defendant, who wished to receive them, as he said, for his own security; but they were not indorsed.^ Neither were the bills of exchange indorsed by Titcomb, the witness having forgotten to have it done. Titcomb w'as then discharged from prison. He further testified that no bail was offered or refused ; that of the demands in his possession, 1654 dollars were then duo and payable; and that no measures were adopted to enforce payment, beyond the ordinary course of law. After his return to Boston, he delivered all the drafts to the Messrs. Lawrence; and before the first draft fell due, having heard that payment would he declined, he agreed to sell out his interest in them all, in order to be a witness in any action that might be brought respecting them ; and received 597 dollars in lull of Lambert & Patterson’s demand against Titcomb ; but no writing was made till June 19, 1827, after this action was brought, when he executed a proper deed of assignment, transferring to the other creditors all his interest in the drafts.</p> <p>Hereupon it was contended for the defendant, —1st, That Patterson was not a competent witness, because of his interest; for previous to the bringing of the action he had only agreed to transfer his interest in the bills, the assignment not having been made till since the action was pending; and if the plaintiff does not succeed in this suit, the defendant will have a remedy, for his costs and damages, against all the persons who caused it to be commenced against him, of whom the witness was one. — 2d, That there was no consideration for the bills, they being mere accommodation paper, on which the original party can have no action The old notes being delivered to the defendant gave him no new rights, because they were paid by the new negotiable paper; and also not being indorsed, they1 gave the defendant do claim beyond what he would have had on a count for money lent. — 3d, Thai the suit wds subject to the control of Titcomb ; both for the foregoing reasons, and because the bills were obtained from him by duress, and under cirCumstanc.es of severity which left him no liberty of choice.</p> <p>The Chief Justice overruled these objections, but reserved them-lor the consideration of the court, a verdict being, by his direction, found for the plaintiff*</p>

. This was an action of the case against the defendants as owners of the schooner Charles, for not delivering 160 barrels of flour shipped at' Georgetown for Portsmouth, for which the master signed bills of lading in the usual form, and with the usual saving of the dangers of the seas; and by which it appeared that twenty barrels were shipped to go under deck at 35 cents per barrel, and one hundred and forty were shipped to go on deck, at half that price for freight.

This action, which was trespass and false imprisonment, came before the court upon a case stated by the parties in ihe court below.

<p>Whether an action will lie against a vendor for false and fraudulent representations respecting the ownership and character of the thing sold, where the conveyance was by deed with express covenants upon those points quiere.</p> <p>One partner cannot render another liable for his fraud, without an actual participation.</p> <p>The doctrine that a principal is answerable for the fraud of his agent or factor, does not apply to special agents. -</p> <p>The cases in which the court will determine the question of fraud, as an inference of law. the facts being clearly proved or admitted, are those of sale, in which the rights of creditors are concerned, under St at. 13. and B7. KHz. or of sales with iutent to defraud creditors, at common law. In other cases of alleged fraud, the imputed intent and scienter are subjects for the consideration of the jury.</p>

<p>The language of the Stat. 1821. ch. 50, giving to this court equity jurisdiction in “ all cases of trust arising under deeds, wills, or in the settlement of estates,” is applicable only to express trusts, arising from the written contracts of the deceased ; and uot to those implied by law, or growing out of the official character or situation of the executor or administrator.</p>

<p>The possession oí a personal chattel, by the mortgagor, is not inconsistent with the mortgage, and furnishes, of itself, no conclusive evidence of fraud.</p> <p>Nor is it a valid objection, by a creditor, against a mortgage of personal chattels, that it is made to cover future advances, if it is also made to secure an existing debt.</p> <p>A chattel mortgaged, is not liable to he attached or seized in execution for the debt of the mortgagor, the money due to the mortgagee not having been paid, nor legally tendered.</p>

This was' a scire facias against the defendants, as indorsers of a writ. The plaintiffs declared that they were sued Feb. 9, 1825, by George & Joseph Johnson ; that the writ was indorsed By the present defendants by the name of “ Wm. & O'.

This was originally an action of debt before a justice of the peace, brought by Merrill, the clerk of a militia company, to recover a penalty for neglect to appear at a company training. The judgment of the magistrate was reversed on error brought in this court, the of-fence not having been alleged against the form of the statute. then moved the court to remand the cause to the magistrate for further proceedings.

This wets an action of assumpsit for services performed and monies expended j and it was tried before the Chief Justice, upon the general issue.

<p>The overseers of the poor of Poland complained to the Court of Common Pleas against Pierce, as the grandfather of a pauper chargeable to that town, to whose support they alleged that he was of sufficient ability to contribute; and for that purpose prayed process against him. In that court he moved for a trial of the question of his ability, by the jury; which Whitman C. J. overruled, on the ground that it was a question to be determined by the court; and after a hearing, adjudged him of sufficient ability, and entered judgment against him for a weekly payment, till the farther order of the court. From this judgment he claimed an appeal to this court, which was refused in the court below, as not provided for by any statute.</p> <p>Fessenden now moved for leave to enter the appeal.</p>

Thayer & Hayes sued Minchin, who gave bail, in the usual form. At October term 1826, they recovered judgment; upon which they immediately took out execution, and gave it to an officer, who returned it non est inventus, all the legal measures having been pursued thus far, to fix the bail.

This was a second scire facias, to have further execution of a judgment of this court, rendered at May term 1814, for ten thousand dollars, being the penalty of a bond given by Susanna and Joshua-Webb, as administrators of the estate of Jonathan Webb, the other defendants^ Lewis and Gordon, being their sureties. See 2. Greenl. 257.

Fellows was indicted for uttering counterfeit money; and op the return of the traverse jury into court, the foreman delivered Verdict of guilty, in the usual form. But before it was affirmed, the defendant moved that the jury might be polled, and each juror severally asked on his oath, whether the defendant was guilty or not.

<p>An indenture, in which several persons are represented as parties ofthe one part, is the deed of as many persons of that part as execute and deliver it, though it is not signed by them all.</p>

This was an action of the case against the defendant, who being the presiding officer at a meeting oi the first parish in Turner, refused to receive the plaintiff’s vote, on the ground that he was not a member of that parish.

In an action of trespass guare clausum fregit, the defendants attempted to show title in themselves under a deed from John Knox, collector of taxes for ths proprietors of New-Suncook, dated April 5, 1780,, and recorded May 8, 1797, conveying a right in the locus in quo to William, Knox; it having been, stricken off to him as the highest bidder, at a sale of the lands of delinquent proprietors, for the, nonpayment of taxes assessed by the corporation.

This was an action of debt on a bond given foí tbe liberty of tbe debtor’s limits, in the form prescribed by Stat. 1822, ch. 209, but not in double the amount of the debt and costs j nor was it approved by two justices of the quorum, as the statute required.

<p>Where there is no prescription, agreement, or assignment under the statute, whereby the owner of land is bound to maintain a fence, no occupant is obliged to fence agai»t an adjoining close ; but in such case, there being no fence, each owner is bound at his peril to keep his cattle on his own close. ‡</p> <p>Where a tenant is bouncT by prescription, agreement or assignment under the statute, to maintain •». fence against an adjoining close, it is only against such cattle as are rightfully on that close; — and in such case, if the fence be not in fact made, the owner, of either close, thus adjoining, may distrain the cattle escaping from the adjoining close, and not rightfully there.</p> <p>The Stat. 1821, ch. 128, see. 6, is merely in affirmance of the common law.</p> <p>Whether to leave wild lands unfenced, be not an implied license for all cattle to traverse and browse them, quesre.</p>

This case was assumjpsit for money had and received; and was tried before Weston J. at October term 1826, upon the general issue, and the plea of the statute of limitations.

This was an action for damages to the plaintiffs horse, thr defective causeway on a road in Troy ; and it came before the court upon a motion to set aside a nonsuit directed by the Chief Justice, before whom the cause was tried.

This was a writ of entry, sued out Nov. 25, 1825, in which the demandant counted on his own seisin. It was tried upon the general issue. The land in controversy originally belonged to Sampson Davis, under whom both parties claimed. It was conveyed by Dams to the demandant, by deed dated September 7, 1799, and recorded May 3,1800.

<p>This was a writ of entry, in which the demandant counted upon his own seisin, and a disseisin by the tenant. Beside the issue of ml disseisin, the tenant pleaded that the demandant levied upon the premises an execution which was issued by a justice of the peace, upon a recognizance entered into by the tenant, under the statute respecting the acknowledgement of debts, in which usury was included and taken; and issue was joined upon a traverse of this plea.</p> <p>At the trial, before Weston J. the demandant objected to the introduction of any proof of usury anterior to the recognizance; but this objection was overruled.</p> <p>The only evidence of title in the demandant was the recognizance, execution, and extent, mentioned in the tenant’s plea. The tenant offered to prove that the return of the extent was not made out till more than sixty days after the extent, and after the return day had passed ; and that it was false j- — 'out this evidence the Judge excluded.</p> <p>He further offered as a witness the maker of an accommodation note made for the tenant’s benefit, to be indorsed to the demandant, and accordingly indorsed, which afterwards formed part of the basis of the recognizance; to prove that the note so created was usurious. But this testimony, so far as it went to show the note to have been tainted with usury, was also excluded.</p> <p>A verdict was thereupon taken for the demandant, subject to the opinion of the court upon the admissibility of the rejected testimony.</p> <p>contended for the admission of the witness, on the ground that the note having been paid and cancelled, the case was no longer within the rule of Churchill v. Suter, 4 Mass. 162. qualified by Fox v. Whitney, 16 Mass. 118, which limits the rule of excluding a party to a note from testifying to impeach it, to the case of an innocent indorsee. But here the indorsee himself is a party to the usury. Moreover, the witness was not called to impeach the validity of the note, as against himself; but to prove the subsequent fact of usury in its transfer. Skilding v. Warren, 15 Johns. 272. 10 Johns. 231. Powell v. Waters, 17. Johns. 180. Parker v. Hanson, 7. Mass. 470. Pierce v. Butler, 14. Mass. 312.</p> <p>To the point that the consideration of the recognizance might be inquired into, he cited Bridge v. Hubbard, 15. Mass. 100.</p>

<p>In assumpsit against two or more, the plaintiff cannot amend by striking out the name of one of the defendants.</p>

This was an action of assumpsit, for money had and received, and was tried before the Chief Justice upon the general issue. It appeared that Solomon Bangs, John P. Hunter, and others, being tenants in common of a large tract of land, the plaintiffs attached Bangs's interest in the land. Sept. 21, 1824, recovered judgment against him at August term, 1825, and extended their execution seasonably and regularly upon the debtor’s undivided estate in the same land.

On the return of a commission issued by the Judge of Probate for this county, upon the petition of George S. Heald and others, heirs at law of Timothy Iieald, deceased, it appeared that Washington Heald, the son of the deceased, and administrator on his estate, had occupied his tan yard during one year after his decease, and that the rent- was of the value of 250 dollars, for which the other heirs prayed that he might be charged in his administration account.

This was a writ of entry. The demandant claimed the premises under a deed from Joseph North. The tenant held under a deed from James Bridge, who had taken this and two other parcels from North by a previous attachment, subsequently perfected by a regular extent.

The question in this case was upon the domicil of one Parker Burgis,, a pauper, at the time of the passage of St at. 1821, ch. 122.

■ In a writ of error brought by the assessors of Winslow, to reverse a judgment recovered by Ross against them, in an action of trespass, the question was, whether the purpose for which the sum of $463,32 was raised by a vote of the town in 1825, and for which Ross was assessed his proportion, was within the legitimate powers of the town. The trespass consisted in distraining and selling the plaintiff’s cow, in March 1827, for the nonpayment of the tax.

In this case the husband was indicted for an aggravated assault and battery upon the wife : and upon the trial, before Preble J. at the last term in this county, he admitted the wife as a competent witness for the State j but saved the point for the consideration of all the Judges, at the motion of Sprague, of counsel for the defendant, he being convicted.

The record of a summary criminal process before a magistrate having been brought into this court by writ of certiorari, it appeared that the defendant had been charged with entering upon land not his own, and cutting and carrying away 100 trees, contrary to the form of the statute entitled, &ic. of which being convicted, he was .senten-. ced to pay a fine of forty dollars, and failing to pay it, was committed to prison. took exceptions to the record — that no close was…

In this case John P. Boyd, the trustee, disclosed that he was indebted to Weston, upon a contract for the building of a mill, and that he had accepted Weston’s order to pay the balance, which might be due to him on the contract, to Mark Trafton.

To a writ of entry in the per and cui, upon the demandant’s own seisin, the tenant pleaded that at the commencement of the action he “ was not tenant of the freehold of the premises demanded, or of any part thereof,” — with a disclaimer. The demandant replied that at that time the tenant “ was in possession of the demanded premises, claiming to hold the same as his own,” — and concluded to the country.

This was assumpsit by the plaintiff as indorsee of a promissory note made by the defendant, payable to one Moor. The considera^ tion of the note was a contract entered into by Moor, to convey to the defendant a patent right to a clapboard machine. Pending this action, the defendant brought an action against Moor for the breach of that contract, and had judgment against him as an absent debtor, by default, in the Court of Common Pleas.

This was an action of assumpsit, by the husband, upon a promissory note, made to the wife, after marriage, by her maiden name of Joanna Saleh. It appeared in a case stated by the parties, that she, being resi-den tin the county of Middlesex, in Massachusetts, had commenced an action against Cram in this county, for the breach of a promise of marriage ; which the attorney soon afterwards received authority to compromise.

This was assumpsit upon a written contract made at Bangor, for the delivery of from fifty to seventy tons of hay to the defendant in. Boston, for which he agreed to pay the plaintiff twenty dollars per ton.

This was assumpsit for one fourth part of the earnings of the brig Levant, and for one fourth part of her value; with a count for money had and received. The plaintiff owned one fourth of the brig, of which the defendant was master; the other three fourths belonging to Theophilus ■ San-horn.

<p>This was assumpsit for supplies furnished to John Stetson and family, alleged to have their settlement in Paris. The supplies consisted of monies paid for surgical aid to his son, and of articles furnished expressly for the son’s maintenance while sick. The question was upon the sufficiency of the notice; which was in these words ;— u Dover, Oct. 11,1825. Gentlemen, You are hereby notified that one John Stetson and family lately from your town, have become chargeable to this town. One of his sons is under the care of a surgeon, with a caries of the lower and posterior portion of the thigh bone, attended with great inflammation about the knee joint. All expenses arising on their account are charged to the town oí Parts, from the first day of July last.” Which was duly signed by the overseers. This notice was delivered to one of the overseers of'Paris, who promised immediately to ascertain whether Stetson belonged to that town, and write to Dover the result. But no answer was ever returned.</p> <p>The cause was tried before Weston J. who thought the notice insufficient, and nonsuited the plaintiffs, with leave to move the court to set the nonsuit aside.</p> <p>insisted that the notice at least included the father and son; which was sufficient for the present purpose : though ho conceded it could extend no farther. Embden v. Augusta 12. Miss. 307. Shutesbury «. Oxford 16, Mass. 102. Bangor v., Deer Isle 1. Greenl. 329.</p>

<p>The indictment in this case, which was found in the Common 'PI;-as, for an assault and battery, was drawn and certified in the usual form, except that at the bottom of the indictment, and immediately before the signature of the foreman of the grand jury, the words “ a true bill” were omitted. And after conviction, the defendant moved in arrest of judgment, for that there was no legal evidence that the indictment was a true bill.</p>

This was an action of trespass for taking and carrying away fifty pine mill logs. The defendant claimed them by' purchase from one Joseph Robinson. In a case stated by the parties it was agreed that the logs were originally cut on land of the plaintiffs, in the winter of 1825 — 6.

’ It appeared, from the record sent up in the case, that the company to which the defendant belonged had never been furnished with a book of enrolment, nor was any offered in evidence.

In a writ, of error to reverse a judgment of the Court of Commoft Pleas, in an action of assumpsit brought by Roberts, as indorsee of a promissory note, it appeared, from the declaration, that the note was signed by four persons, jointly and severally, and that the action was against two only, no reason appearing on the record why the other two were not joined.

<p>A feme sole, being summoned as trustee in a foreign attachment, took husband pendente lite, and afterwards disclosed, and was adjudged trustee. On scire, facias brought, against the husband and wife, to have execution de bonis propriis. they pleaded that at the time when, Sic. she had no goods, effects or credits of the principal in her hands ; and on general demurrer the plea was held bad.</p>

This was an action of trespass, in which the first count was for breaking and entering the plaintiff’s , house, and there assaulting and debauching his daughter; and the second was only for debauching the daughter, per quod servitimn amisit.

It appeared, from the record sent up, that Muzzy, a constable of the town óf Searsmont, having in his hands an execution in favor of one Tilden, against John Jones, seized and sold at vendue a certain quantity of hay; which, after the sale, and before delivery to the purchaser, Lothrop claimed and took away, as his own ; which was the trespass here complained of.

This was a writ of entry for possession of a parcel of land in Belfast, to which both parties claimed title as judgment creditors, under several extents, against one 'Ezra Ryan. in a case stated by the parties, it appeared that Ryan, being tenant in common of an undivided portion of a tract of land, preferred his petition for partition thereof, according to the statute.

<p>This was a petition for partition of a tract of land in Hollis, in this county, to which the respondent pleaded his sole seisin. At the trial before Parris J. at the last September term, the petitioners, in proof of their title, offered in evidence the record of proceedings in the Supreme Judicial Court of Massachusetts, in a process by petition for partition, preferred by Patrick Tracy & als. in Suffolk, at February term, 1788, against persons unknown; in which the court ordered notice, returnable in Essex at the June term ensuing; at which time “ no one appearing to object thereto,” the court appointed commissioners, one of whom was Robert Southgate, Esq. of Scarborough, in the county of Cumberland, to make partition; and at the following December term in Essex, the warrant being returned, the court ordered that it “ be accepted, and that the same be recorded.” No formal judgment, interlocutory or final, appeared to have been entered. The tract of which partition was prayed for, was described as “ the plantation called Little-falls, containing about thirty six square miles, bounded on the head or northwest end of the town of Biddeford, and carries that breadth being four miles, adjoining Saco river, to the river called the little Ossipee ; — excepting the several lots adjoining Saco river, which Maj. William Phillips, in his lifetime, by deed, conveyed to Tyng, Russell, Leverett and Pattershall, now in the actual tenure and occupation of their several heirs and assigns; and some small tracts laid out by virtue of grants made by the late Province of Massachusetts-bay ; and excepting ono quarter part set off to Josiah Waters, of Boston.”</p> <p>This evidence the Judge rejected, because the proceedings were had iii a county other than that in which the lands were situated; and a verdict was taken by consent, for the respondent, subject to the opinion of the court upon the admissibility of the evidence.</p> <p>contended that the evidence ought to have been admitted. As there was no issue joined, the proceedings might be had in any county. The jurisdiction of the Supreme Judicial Court, as it is commensurate with the State, may well be exercised over any subject matter, in any county, where it is not made local by particular statutes. The Stat. 1786, ch. 53, only provides that certain particular facts shall be tried in the county where the land lies, unless it is otherwise agreed. But where these are not in controversy, the proceedings ought to be had wherever the court may deem it most for the convenience of the parties. Mitchell v. Starbuck 10. Mass. 5. Vaughanv.Noble 6. Mass. 252. Bonner, esc parte A. Mass. 122. The formal entry of a judgment quod partitio Jiat was not necessary. Southgate v. Burnham 2. Greenl. 369.</p> <p>argued that the record was inadmissible for the purposes for which it was offered.</p> <p>1. It contained no judgment quod partitio fiat. The statute of 1786. ch. 53. converts what was an amicable proceeding into an adverse suit; and in Cook v. Allen 2. Mass. 462. it is settled that an adverse interest is let in, and that one claiming to be sole seised, and neglecting to appear, is concluded as to his right of possession. As these proceedings, therefore, are to have the effect of a judgment at common law, they ought to be conducted with the same forms and solemnities. The warrant in the one case, is of no greater value than the habere facias in the other; neither being proof of a judgment. Each is an official writ, issued in vacation, and without judicial sanction.</p> <p>2. But if there had Been such judgment, it was rendered in the wrong county. In all proceedings touching the title to real estate, whatever an adverse party has a right to contest, must be transacted in the county where the lands lie. The title to real estate has never, since Magna Charta, been tried but by a jury of the vicinage ; and this, at most, extends no farther than the limit from which jurors may be summoned to serve on the trial. And the care of the legislature to preserve this right is manifest in the provision excluding all implied consent, and requiring the trial to be had in the county where the lands lie, unless the contrary is expressly agreed. As, therefore, the proceedings in the present case were not had in the. county of York, they were coram non judice, and merely void. The judgment cannot avail for any purpose whatever; and may be avoided collaterally, by plea or otherwise. Hathorne v. Haines 1. Greenl. 238.</p> <p>3. The description, also, of the land whereof partition was prayed, was too loose, general, and uncertain, and could not be suffered to go to the jury.</p> <p>4. And the commissioners were not all freeholders of the county. It is true, the statute on this subject is not express; but so is the common law, by the principles of which these proceedings ought to be governed. The sheriff was required to make partition by the oath of twelve good freeholders, de vicineto ; and the commissioners, provided by the statute, are only a substitute for the jury.</p>

This was assumpsit for money had and received. At the trial before Parris J. it appeared that the plaintiff had made a parol agreement for the purchase of a farm, at the price of twelve hundred dollars; for which he paid six hundred dollars at the time, and procured the defendant, and two others, to become his sureties in a promissory note for the residue ; and for indemnity against their liability on the note, it was agreed that the deed should be made to them alone.

This was an action of trespass quare. clausum fregit, in which both parties claimed titre to the locus in quo.

This was assumpsit, for the price of a yoke of oxen sold to the defendant.

<p>The right of a widow to have dower assigned in the lands of her husband, cannot bo taken in execution for her debt.</p> <p>To a plea, in an action of dower, that the widow claimed the premises in fee, and that iter estate therein had been duly sot off to the tenant by extent, for her own debt, a replication that she had no right, interest, or estate in the premises, other than a right to have her dower therein, ought to conclude to the country. But if it be concluded with a verification, it is good ort general demurrer.</p>

<p>By the use of the term “about," in describing the length of line, in a deed of conveyance, it is understood that exact precision was not intended ; but if the place where the monument stood, by which the distance was controlled and determined, cannot be ascertained, the grantee must be limited to the number of rods or feet given.</p> <p>If one tenant in common sues a writ of entry against his co-tenant, who pleads mil disseisin; proof of the demandant’s title as tenant in common will not now entitle him to judgment; the Stat. 1826. ch. 344. having rendered it necessary that he should also prove an actual ouster.</p> <p>Since the passage of Stat. 1826. ch. 344, a verdict and judgment in favor of the tenant, upon the general issue, in a writ of entry, will not always be evidence of title in him ; for the statute having declared that such plea shall not be taken as an admission of the tenant’s seisin and possession of the land, it may be that he prevailed because he was not proved to be in possession.</p>

This was an action to recover of the defendant, who was named executor in the will of John Moore deceased, the penalty mentioned in Stat. 1821, ch. 51, sec. 11, for not filing the will in the Probate office within thirty days after the death of the testator, which happened September 3, 1823.

In an action of trespass quare clausum fregit, the defendants claimed the title to the locus in quo under a deed from William Linscott the plaintiff, to James Linscott, dated April 22, 1822, conveying a tract of land in Shapleigh, bounded thus: — “ beginning at the county road opposite Joseph Linscott’s corner, and running north 69 degrees west, forty-six rods, thence north 86 degrees west to the range line, thence south, on said range line, to Joseph Linscott’s land, thence…

<p>Where one was employed as the agent of certain others, to purchase for them a piece of land, and take the conveyance to himself, concealing his princi» pals ; and a third person, at the request of the principals, became surety for the agent in a promissory note for the purchase money ; which note the surety paid ; — it was held that the surety alone might have assumpsit against the principals, for the money thus paid.</p> <p>Held also, that this was an original undertaking, and not within the statute of frauds.</p> <p>Held also, that the benefit accruing to the principals was a sufficient consideration to support the promise.</p>