Volume 50 — Maine Reports

Reported from JSTisi Prius, Rice, J., presiding. This was an action of assumpsit.

<p>A conveyed to B a portion of a lot of land of a certain width, and extending so far in length “ as will make precisely twenty acres j ” and immediately after-wards A and B, by mutual agreement and survey, marked the lines and corners of the granted premises by spotted trees and stakes. The next year, A conveyed to C the remainder of the lot, more or less, bounding it on the east “by the west line of B’s land.” B and C occupied their several parcels according to the line marked by A and B, for about twenty-five years. In the mean time, B, by the decision of a lawsuit between him and a third party,' had his lot widened on one side four rods, and in consequence relinquished two rods on the other side. C, without any suit, conformed his lines to B’s new ones. But the division line between B and C, and their occupation of their respective parcels, continued as before. In an action brought by C’s grantee to recover of B’s grantee all of the original lot except twenty acres, it was /Wd,'that the parties intended, in the conveyance from A to C, to bound the land conveyed by the well known marked line then existing, and not by an imaginary west line of B’s land to include therein “ precisely twenty acres.”</p> <p>After an acquiescence by all the parties in a line so established, for a length of time sufficient to give a title by disseizin, it will not be disturbed, although the occupation has not been such as, aside from the marking of the line, would amount to a continuous disseizin for the whole time.</p>

Exceptions from the ruling of Bice, J., presiding at Nisi JPrius. Complaint nor elowage, entered at the November Term, 1859. On the second day of the term, the defendant filed a motion to dismiss the complaint, because, ho says, said complaint was brought before the expiration of one year after the rendition of judgment upon the original complaint, and that no payment has been made for any year subsequent to the rendition of said judgment.

Exceptions from the ruling of May, J. This was an action on the bond of Henry J. Shaver, collector of taxes in the town of Beadfield for the year 1857, as principal, and Asa Gile and others, as sureties. It was in evidence that Shaver was collector of taxes for 1856 and 1857. In 1856, he gave a bond which was accepted by the town. In 1857, he offered as sureties the names of the same persons as the preceding year, except one, and the town voted to accept them.

Exceptions from the ruling of Bice, J., at Nisi JPrius. Scire Facias upon a recognizance. The defendant demurred to the declaration. The demurrer was joined by the County- Attorney and overruled by the presiding Judge, and the defendant excepted. The following is a copy of the writ of scire facias: — State of Maine. — Kennebec, ss. — To the Sheriff of our county of Kennebec, or his Deputy, — Greeting.

<p>On agreed statement oe eacts. Writ oe Entry, to recover a parcel of land in Belgrade, in the county of Kennebec.</p> <p>The demandant claims title to the premises by virtue of a levy made April 20, 1858, upon an execution in his favor against one- William W. Spaulding, issued from the office of the clerk of the Supreme Judicial Court for said county, on a judgment recovered in said Court, March 31, 1858.</p> <p>On the 28th of June, 1852, said William W. Spaulding was the owner of the' demanded premises, in the actual possession thereof, a householder, and the head of a family : on which day he filed, in the office of the register of deeds for said county, a certificate covering certain premises not exceeding in value the sum of five hundred dollars, of which the demanded premises are a part, therein declaring his wish to hold said premises exempt from attachment and ■levy, or sale on execution."</p> <p>Said William W. Spaulding remained in possession until April 20th, 1858, and was in the possession of and owned said premises at the time of the demandant’s levy. At the time of the service of the writ in this action, the said Llewellyn E. Spaulding was in the possession and occupation of the demanded premises, as tenant of the said William W. Spaulding.</p> <p>On the 10th day of January, 1852, said Mills recovered judgment before a justice. of the peace, in said county, against the said William W. Spaulding for costs, from which judgment said Spaulding appealed to the District Court then next to be held at Augusta, in April following — but neglected to enter and prosecute said appeal — and the judgment rendered against him by the magistrate, was, upon due proceedings had, affirmed by said District Court at said April term, 1852, with additional costs.</p> <p>°In 1858, said Mills sued the last named judgment, and, at the March term of this Court, in that year, recovered judgment for the original judgment and officer’s fees, and costs of suit. This judgment was rendered on March 31st, and the plaintiff's levy made on April 20th, 1858, as above stated.</p> <p>The tenant defends on the ground that, at the time of the levy, the premises were exempt from attachment as the property of said W. W . Spaulding, by virtue of the statute of 1850, e. 207, and of said Spaulding’s proceedings under the same. The certificate signed by him and filed on the same day in the registry of deeds for the county of Kennebec, is as follows :■—</p> <p>" Know all men by these presents, that I, William W. Spaulding, of Belgrade, in the county of Kennebec, wishing to avail myself of the benefit of an Act entitled 'An act to exempt homesteads from attachment and levy or sale on execution,’ approved August 29th, 1850, do hereby certify and declare my wish and herein describe the property which I am the owner of, and in actual possession of the same, and wish to hold under the provisions of said Act, exempt from attachment, levy or sale on execution, or so much thereof as shall not exceed in value the sum of five hundred dollars, namely— a certain tract or parcel of land situate in said Belgrade, containing about twenty acres, being my homestead farm, and now occupied by myself and family. For a more particular description, reference is hereby made to a deed from Burleigh Palmer to me, dated some time in the year A. I). 1850. Given under my hand the 28th day of June, in the year of our Lord eighteen hundred and fifty-two.”</p>

On statement of facts. This was an action of ejectment. It was admitted, that the defendant, at the time this suit was commenced, was in possession of the premises demanded, claiming ünder the mortgager and withholding them from the plaintiff; that, at that time, he was a minor, but has since become of full age.

On Exceptions to acceptance of report of referees; and on Report by Rice, J., on motion to set aside the award and for a new hearing before the referees, or for a new trial in Court, on the ground of newly discovered material evidence. This was an action to recover damages for personal injuries alleged to have been sustained by the plaintiff, by reason of a defective highway in the defendant town. By rule of Court it was referred to three referees.

Exceptions from the ruling of Bice, J., at JSTisi Prius. Assumpsit on a receipt for a stock of millinery goods attached on a writ in a suit of Palmer & ais. v. Weston & The officer, in his return, described the property attached as a lot of millinery goods and merchandize.” The bill of exceptions sets forth, that the plaintiff introduced a copy of the writ, Palmer v. Weston & als., dated June 25th, 1858, returnable to the Supreme Judicial Court, to be held at Portland on the…

<p>Exceptions from the ruling of May, J., at Nisi Prius.</p>

Reported from JSfisi Prius, Rice, J., presiding. This was a real action to recover certain lands in Belgrade, in tbe county of Kennebec, brought' by the heirs of Benjamin Austin, deceased. By agreement of the parties, the case was withdrawn from the jury, and the evidence reported to the full Court, with jury powers, to draw inference therefrom; the substance and nature of which, bearing upon the questions in issue, sufficiently appear from the opinion.

Reported from Nisi Prius, Rice, J., presiding. This was an action of assumpsit upon a promissory note, and was submitted to the ful'1 Court, upon a report of the evidence, — the Court to exercise jury powers in drawing inferences. The note was given for intoxicating liquors. The defendant offered the bill of the plaintiffs acknowledging payment, which is of the same amount and date as the note.

Exceptions from .the ruling at Nisi Prius of Rice, J. This was an action for an alleged malicious prosecution of a civil suit by this defendant, against the plaintiff, without any lawful or just cause of action, being guided wholly by wanton malice and a desire to oppress, injure and defraud the plaintiff, and to deprive him of his good name and reputation, and injure him in the estimation of his fellow citizens.” Under a general leave to amend his writ, the plaintiff filed…

<p>A promissory note, given on Sunday, is void, as between the partios ; and a subsequent promise to pay it, will not make it valid.</p>

<p>Reported from Nisi Prius, Appleton, J., presiding.</p> <p>This, was was an action of assumpsit to, recover double the price of building the. part of a divisional fence which was assigned to the defendants by fence viewers.</p>

<p>An action, in the name of husband and wife for injuries sustained by her, survives ; and the husband may withdraw, that the administrator may come in and prosecute.</p> <p>In such a case, the husband cannot be considered a party after the death of the wife ; but, if made her administrator, he may prosecute in that capacity.</p>

Exceptions from-the ruling of Appleton, C. J., presiding at JVisi Prius. This was an action of trover against the defendant, as sheriff, for -the act of a deputy, in attaching and selling one half of a vessel, (as the property of said William Winslow,) which, it is alleged in the writ, was the property of the wife of said Winslow, the female plaintiff.

<p>Reported from Nisi Prius, Rice, J., presiding.</p> <p>This was an action of assumpsit on the promissory note, of the defendant to the plaintiff, dated February 7, 1856, for $780, on-demand with interest.</p> <p>The defendant offered evidence to prove that the note in suit was given as a receipt for money which plaintiff let the defendant have, to be loaned by him for the plaintiff’s benefit, in such manner as the defendant might consider most advantageous to the plaintiff; that he loaned it for plaintiff, using great care to loan it safely and well, but the parties to whom the money was loaned, failed, and no part of it has been repaid; that the plaintiff knew and approved of the parties to whom the loan was made; that the defendant was acting as the agent of the plaintiff in loaning the money, without any pecuniary benefit to himself.</p> <p>This evidence was objected to as inadmissible, and the presiding Judge so held. The defendant consented to be defaulted, subject to the opinion of the full Court upon the question of exclusion of the evidence offered.</p>

Reported from Nisi Prius, Rice, J., presiding. This was an action of assumpsit on a'policy of insurance, dated Aug. 21, 1855, for $700' on a house in Mt. Vernon,- and $60 on the furniture therein. The writ is dated July 16, 1858. The loss occurred November 28, 1857.

Exceptions from the ruling of Rice, J. This was an action of trespass, for an injury to the plaintiff’s booms in the Kennebec river at Pittston,' by -taking therefrom certain logs or sticks of timber which were a part of the structure of said booms.

Exceptions from tbe ruling of May, J., also on motion to set aside tbe verdict.

<p>Petition for review of an action in which judgment was rendered for the defendant for his costs, on a verdict in his favor, at the term of the S. J. Court in October, 1850. This petition is based upon the statute of 1859; and was commenced within six months of its enactment. At the hearing, October term, 1861, Tenney, C. J., granted the, review as prayed for. The respondent excepted.</p> <p>The 'bill of exceptions sets forth that " the petitioners presented proofs which satisfied the Court of the truth of the allegations in the petition.</p> <p>" The respondent offered no oral testimony, relying on the legal grounds of defence : the statute of limitations, touching the time within which petitions for review should be commenced; also, upon the previous adjudications, of the Court, upon applications of the petitioners for a rehearing and review; and contended, that the statute, on which the petitioners relied, was inapplicable and unconstitutional.”</p> <p>The facts in the case, so far as they bear upon the questions of law considered, will sufficiently appear from the opinion of the Court.</p> <p>For the petitioners, the questions presented by the exceptions were elaborately argued by</p> <p>who contended, that, under the statute of 1859, he was entitled to a new trial, if it was proved that the witness for the defendant had sworn falsely. Of this he had satisfied the Judge presiding at the hearing; and so the exceptions show, and upon the naked question of perjury the case is to be determined.</p> <p>The statute did not contemplate cases, where the petition was "dismissed without prejudice,” for some legal defect. It contemplated, when speaking of a "former unsuccessful petition,” a case where a hearing had been had upon the merits.”</p> <p>The Legislature has the authority to extend the time, fixed by the statute of limitation, in which application may be made for the redress of a wrong done. The constitutional power of the Legislature to extend the time, within which the remedy may be applied to the right or cause of action, has been so well settled in the case of Ogden v. Saunders, and in other cases, that argument, on that point, seems useless.</p> <p>In Bronson v. Kinsey, 1 Howard, 311, the Court say:— " Although a new remedy may be deemed less convenient than an old one, and may in some degree render the recovery of debts more tardy and difficult, yet, it will not follow that the law is unconstitutional.</p> <p>. " Whatever belongs merely to the remedy may be altered according to the will of the State, provided that the alteration does not impair the obligation of contracts.</p> <p>" But, if that effect is produced, it is immaterial whether it is done by acting on the remedy or directly on the contract itself. In either case it is prohibited by the constitution.”</p> <p>The Court further say: — "We concur entirely in the correctness of the rule above stated. It is difficult, perhaps, to draw a line that would be applicable in all cases, between legitimate alterations of the remedy and provisions which, in the form of remedy, impair the right. But it is manifest that the obligations of the contract, and the right of a party under it, may, in effect, be destroyed by denying a remedy altogether; or may be seriously impaired by burdening the proceedings with new conditions and restrictions, so as to make the remedy hardly wmrth pursuing. And no one, we presume, would say that there is no substantial difference between a retrospective law declaring a particular contract or class of contracts to be abrogated and void, and one which took away all remedy to enforce them, or encumbered it with conditions that rendered it useless, or impracticable to pursue it.”</p> <p>The petitioner cited and commented on Oreen v. Biddle, 8 Wheaton, 75; 1 Blackstone’s Com., 55; Oalder v. Bull, 3 Dallas; Colby v. Dennis, 36 Maine, 9.</p>

Exceptions from the ruling of Tenney, C. J., presiding at JNisi Prius, excluding testimony on the hearing of a petition for review. The petitioner offered one Strickland, as a witness, to prove a material fact alleged, in the petition, to exist, and to be proved by witnesses therein named. The witness offered was not one of those named by whom the fact was to be proved, but was named a witness to prove other alleged causes for review.

<p>An attorney, who prosecutes a bastardy process to final judgment and execution, has a lien for his services and disbursements upon the bond given by the respondent in that process; and he may maintain a suit thereon to recover his claim, notwithstanding the complainant in the original process has given a full discharge to the obligors.</p>

Exceptions from the ruling, pro forma, of Tenney, C. 4 , J., presiding at Jxisi JPrms. * Writ op error to reverse the judgment allowing the defendant costs in an action in which he was summoned as trustee of Calvin M. Sawyer, brought by the present plaintiff.

<p>The defendant in hjs plea, verified by oath, alleged usury, and offered to be defaulted for a specified sum which was the amount claimed, less such interest ; and the plaintiff indorsed the amount of the excessive interest upon his note before trial and accepted the offer : — Held that the damages are not reduced by proof, so that the plaintiff forfeits his, and becomes liable for defendant’s costs, as provided in the Act of 1862, c. 136.</p> <p>But the plaintiff will have costs to the time of filing the offer, and the defendant, after that time. R. S., c. 82, § 21.</p>

Reported from Nisi Prius, Tenney, C. J., presiding. This was an action of trover against the sheriff of the county of Somerset, to recover the value of certain personal property, which had been attached by his deputy Nye, as the property of Mott & Gage.

This was an action of assumpsit to recover back money paid .to the defendant for his release of an equity of redemption of certain premises, which the defendant represented to the plaintiff he had purchased and owned.' At Nisi Prius, Tenney, C. J., for the purpose of giving progress to the cause, ruled upon certain questions of law, and a verdict by consent was taken for the plaintiff for a sum agreed upon by the parties.

Reported from Nisi Prius, Fox, J., presiding. Writ oe entry to recover a tract of land in Palmyra, in the county of Somerset. The defendants are Warren M. Brown, Elvira D. Leathers, his daughter, Daniel R. Loathers, husband of said Elvira, and Lcndall M. Gray. Gray was defaulted. The other defendants, at a subsequent term, jointly pleaded nul disseizin.

<p>Possession, in certain cases, implied notice of title to subsequent purchasers, ■where the deed was not recorded, before the R. S. of 1841, which required actual notice.</p> <p>Nor, to imply notice, was the occupation required to be entirely exclusive.</p> <p>Thus, where husband and wife, who had long occupied a farm, conveyed it to their son, taking back a mortgage, conditioned for their support, but omitted to have the mortgage recorded, and the mortgagees still remained on the premises, they and the son constituting one family, and all contributing to its support; and, some years after the giving of the first mortgage, the son made a second, to a third person, which was duly recorded: — h was held that the second mortgagee, itnder the circumstances, should be regarded as having had notice of the legal title of the first mortgagees, at the time of the conveyance to him.</p>

Bill in equity to redeem 100 acres of land in Newcastle. It appears by the bill, answers and proofs, that, in Oótober, 1837, Josiah Myrick and others conveyed said land to Nathan W. Sheldon, and, on the same day, said Sheldon mortgaged the same land to Josiah Myrick, Augustas E. Lash, Cushing Bryant and Lot Myrick, to secure the payment of three notes amounting to $1000.

Assumpsit -for money bad and received. Plea, general issue. Tbe facts are very clearly stated-in tbe opinion of tbe Court. Tbe case was submitted to tbe full Court on report of tbe evidence by Cutting, J. 1. George P. Carr bad no interest in tbe policy of insuranee. It was procured by the defendant, at the request of the administratrix, and for the benefit of the minors under the guardianship of Jacobs, of the widow and of Helen Carr.

On Report from .Nisi Prius, Davis, J., presiding. This was an action of assumpsit, upon a policy of insurance in the sum of $2000 on one fourth of the brig Hesperus, for one year, from the 13th day of January, 1855, at noon.

<p>Where A had agreed in writing to pay the debt of another, and B, in a postscript, subscribed by him, added, “I will be accountable with A, according to the above writing,” an action lies against both as joint contractors.</p> <p>The discontinuance of an action, by the plaintiff, against the debtor, and another as his trustee, in which there was a reasonable prospect of charging the trustee, was a sufficient consideration for the promise.</p> <p>By the terms of the contract, the plaintiff was to be paid, when the debtor received his money, in the hands of the trustee. The trustee afterwards, with the debtor’s consent, gave his promissory note to a third person, and took the' debtor’s receipt for the money: — and it was held, that, in legal contemplation, this was a payment to the debtor, by which the defendants’ promise became absolute.</p>

<p>On Report from JSfisi Prius, Goodenow, J., presiding.</p> <p>The material facts in the case appear from the opinion of the Court.</p>

Exceptions from the ruling, pro forma, at Nisi Prius, of Rice, J. This was an indictment for perjury, to which a general demurrer was filed, which was overruled, pro forma, by the presiding Judge, after joinder. The defendant excepted. There were numerous causes of demurrer, relied on in the written arguments of OovM and Hubbard, for the defendant. Drummond, Attorney General, submitted the case on the argument furnished by the prosecuting officer for the county of Lincoln.

Reported from Nisi Prius by Cutting, J. Assumpsit to recover §48,18 premium on an alleged insurance of a cargo of lumber from St. John to Waldoboro’. Plaintiffs offered to prove that defendant, who is a merchant in St. John, N. B., shipped to Waldoboro’, where plaintiffs reside, a cargo of lumber consigned to plaintiffs.

<p>■Reported from Nisi Prius, Tenney, C. J., presiding.</p> <p>This was an action of assumpsit against the defendant as indorser of a promissory note. •</p>

This case was presented on defendants’ motions to set aside the verdict, as being against law and the evidence; and that the damages assessed were excessive. The defendants subsequently filed an additional motion for a new trial on the ground of newly discovered evidence. This was an action to recover for personal injuries, alleged to have been occasioned by a defective highway, in the defendant town.

Reported from JSRsi Prius, Rice, J., presiding. This was an action of dower. The principal question in controversy was, whether the premises, at the time the demandant’s husband alienated them, were of the description which is subject to the claim of dower.

Reported from Nisi Prius, Rice, J., presiding. This was an action of the case, against the late sheriff of the comity of Lincoln, for taking an insufficient replevin bond by one of his deputies.

Eeported from Nisi Prius, Eice, J., presiding. This was an appeal from the decree for an allowance, by the Judge of Probate for the county of Lincoln, to the widow of Samuel Tarbox, out of his personal estate, she having seasonably waived the provision made for her in his last will, which had been duly proved and allowed. The real estate of the testator was appraised at $3500, personal estate about $21,000.

Bill in Equity. — The case was presented on the separate general demurrer of each of the respondents to the bill. The case was argued by

This was a petition for a rule, to issue to the County Commissioners to appear and show cause why a writ of mandamus should not issue, commanding them to declare the petitioner Register of Deeds for the county of Knox.

Reported from JSfisi Prius, Rice, J., presiding. Writ oe Entry, to recover certain premises therein described, situated in Rockland. The material facts are stated in the opinion of the Court. The case was argued, on the report of the evidence, by

Exceptions from the ruling of Appleton, J. This was a petition eor partition, in which the petitioner prayed to have set off to him, to hold in severalty, one-tenth part of the premises described in his petition, (a tract of land in St. George of about 150 acres,) which he claimed in fee simple, and four-tenths of the same premises, for the life of one Mason. The said Hall, and persons unknown, were alleged in the petition to be co-tenants.

Exceptions from the ruling of Goodenow, J., at Nisi Prius. Only two of the various questions, raised by the bill of exceptions, and argued by the coúnsel, are considered in the opinion; and the facts in the case, so'far as they bear upon these questions, therein appear.

Bill in Equity, instituted by Joseph Hewett, Atwood Levensaler and Abiel W. Kennedy, as receivers of the Shipbuilders’ Bank of Kockland, but in behalf of the claimants of said bank, against the persons liable as stockholders thereof, to contribute to the payment of their claims. Several of the respondents filed separate general demurrers to the bill.

Exceptions from the ruling of Appleton, J. This was an action of assumpsit. On the return day, the defendant’s counsel entered upon the docket a special appearance, to move to dismiss the action, filed a written motion to dismiss, for the want of- legal service of the writ, and also filed an account in set-off to plaintiff’s action.

Reported from Nisi Prius, Appleton, J., presiding. Trespass quare clausum, brought before a justice of the peace, alleging a breaking, entering, &c., on the 14th April, 1855. The writ is dated September, 1855. Plea, general issue, and a brief statement of title.

Exceptions from the adjudication of Rice, J., discharging the trustee. Isaac Ames, and Erskine, the principal defendant, as partners, claimed to have furnished materials of the value of $330, for a ship built at Rockland by one Rhodes, in the year 1854, for which amount they claimed to have a lien upon the ship, under the statute. The trustee purchased the ship of Rhodes, who died before it was launched.

Exceptions from the ruling of Tenney, C. J., presiding at Nisi Prius. Tuts was an action of assumpsit against the defendant as indorser of a promissory note of the following tenor: — Augusta, 24th May, 1854. Eor value received, I promise, as treasurer of Vassalboro’ Company, to pay to the order of James Bridge, fifteen hundred dollars in eighteen months, with interest annually.

Exceptions from tbe ruling of Cutting, J., at Nisi Prius. This was an action of assumpsit to recover an assessment upon a stock note dated February 27, 1856, for $2000, payable in two months after demand, — on which is indorsed the sum of $250, paid Nov. 23, 1859, the amount of a prior assessment paid by the defendant.

This was an action on the case for a malicious prosecution commenced by the defendant against the plaintiff, and causing him to be arrested on a warrant, in which he was falsely charged with having fraudulently obtained the possession of certain promissory notes. The verdict was for the defendant.

<p>Reported from Nisi Prius, Cutting, J., presiding.</p> <p>Real action to recover a portion of lot No. 38 in the town of Houlton.</p> <p>The explanatory sketch, page 314, may be accurate enough to aid in understanding more readily the matters in controversy. The land claimed in the demandant’s suit is indicated by the lines B, A, D, C. The tenant disclaimed all east of the line E, E; but claimed the remainder, being H strip about three rods in width.</p> <p>The diagram is intended to represent the western portion of lot No. 38. In the year 1824, Amos Putnam, who owned the whole lot, conveyed to Leonard Wilson a part thereof, described thus : — "Beginning at the S. E. corner of lot No. 38, thence N. 77° W. 16 rods; thence N. 41° W. 14 rods, [see plan C to A] ; thence N. 13° E. to the Creek, [A to D] ; thence down the Creek to the line of No. 32; thence,” &c., — containing five acres, more or less.</p> <p>Subsequently, in the same year, said Putnam conveyed the residue of lot No. 38, on the east side of Meduxnekeag stream, to Jay S. Putnam, which was called the "Mill lot.”</p> <p>In 1825, Wilson conveyed to Peleg Lander the westernmost part of his lot, describing it thus : — "beginning * * * on the south line of the lot I purchased of Amos Putnam, [on plan B] ; thence N. 41° W. nine rods to a stake [A] ; thence N. 13° E. four rods to the Creek [D] ; thence,” (to Gr and to B, as indicated by the plan.*)</p> <p>On May 19th, 1834, said Lander conveyed to Edward Kelleran the western part of his lot, beginning on a line nine feet west of the west end of his dwellinghouse (line I, K, on the plan) "containing one acre, more or less.”</p> <p>Kelleran also purchased the mill lot, described in the deed before mentioned of Amos Putnam to Jay S. Putnam. In 1852, Eufus Mansur obtained Kelleran’s title to both lots. Lander had before that time released to Mansur the part of the premises conveyed to him by Wilson, which he had not before conveyed to Kelleran.</p> <p>Both parties concur that Mansur then had the title to both lots. On the 16th of May, 1857, he conveyed the two tracts to Henry Sincock, describing them thus : — "the following described parcels of land, being parts of lots numbered thirty-eight on the east side of Meduxnekeag Creek in the village of said Houlton; to wit: that parcel of land formerly occupied by Peleg Lander as a residence, and that parcel adjoining the same now occupied by my store, and bounded as follow?: — "beginning on the west line of Ingersoll’s store lot, and on the south-west line of the said Lander lot; thence north, forty-one degrees west, nine and •J-0% rods, to land belonging to the mill privilege of said Mansur ; thence north 13° east, four rods to the creek; thence down said creek to the said west line of the Ingersoll store lot; thence south 16° west, on the said west line twenty-eight rods to the place of beginning.” Sincock conveys by this description to one Lovering, and Lovering to the demandant.</p> <p>In the same deed of Mansur to Sincock, the mill lot is thus described, "also all that part of the land and mill privilege lying west of the passage way, which is reserved in the partition between Edward Kelleran and John Lovering, for a particular description of which reference is made to the registry of deeds, &c.; and west of the west line of the parcel of land hereinbefore described, and which was conveyed by Lysander Putnam and Jay S. Putnam to Edward Kelleran, as per their deed dated Nov. 21, 1834, and recorded, &o., and bounded as follows, to wit: — beginning on the said creek at the north-west angle of the first above described parcels of land; thence up said creek to the south line of said lot numbered thirty-eight; thence easterly on said south line to the west line of said reserved passage way; and thence northerly on said west line and the west line of said first described parcel of land to the place of beginning, with the mills thereon, together with all my right, title, and interest in the reserved passage way, dams, and right of water belonging to said privilege.”</p> <p>The description in the deed, Sincock to Ham, the tenant, is as follows, viz.: — "beginning on the south line of said lot No. 38, and on the lower or west line of a one rod passage way as laid out by P. P. Burleigh near the bank of the stream; thence northerly on the lower line of said passage way to the west line of the store lot formerly owned and occupied by Edward Kelleran, which was conveyed to me in the aforementioned [deed] by said Mansur; thence continuing northerly on said west line to the Meduxnekeag stream; thence up said stream to the south line of said lot No. 38; and thence easterly on said south line to the place of beginning, together with all my right, title, claim, and interest in said reserved passage way, dam, and right of water belonging to said privilege.</p> <p> </p> <p>In the deed of Kelleran to Frothingham and others, given in 1835, the south part of the land between the lines E, F, and I, K, was reserved; being the land on which his store stood.</p> <p>. Evidence was introduced by the tenant, subject to objection, to show that for a period of more than thirty years the space between Kelleran’s store , and the mill had been used for piling lumber thereon, and as a passage way to and from the mill; that except this, there was no other way of getting to the mills in front.</p> <p>Leonard Pierce testified that he drafted the deed of Aug. 27th, 1859, from Sincock to Ham; thinks it was not copied from another deed; does not recollect whether the deed from Mansur to Sincock was present or not.</p> <p>Witness further testified: — "I thought the line of the Kelloran store lot, was near the top of the bank, and supposed, that by following the lower lino of the passage way, it would not strike the west lino of the store lot, until it came near the top of the bank, which is near the store. I had no idea of any other west line of the store lot but that one.”</p> <p>The case was argued by</p>

Reported from Nisi Prius, Cutting, J., presiding. Assumpsit upon a contract of the following tenor and date: — October 30, 1856. I agree to pay Long & Drew for their right to cut birch timber the present lumbering season in letter E, range 1, eighty dollars to be paid the first day of June next.

<p>Exceptions from the ruling of Cutting, J., at Nisi Prius.</p>

Trespass .guare clausum. Plea general issue, with brief statement.

Exceptions from the ruling of Cutting, J. This was an action of debt upon a poor debtor’s bond. The defence was performance by the debtor’s taking the oath ag provided^ by the statute. The cértiñcate of discharge by two justices of the peace and of the quorum was introduced. Eor the plaintiff it was contended that one of the justices was not disinterested. The material portion of the evidence offered on this point will appear .from the opinion of the Court.

<p>In an action commenced in this Court to recover a penalty, which is “ not to exceed one hundred dollars,” the -jury assessed damages for the plaintiffs at one cent — one-fourth of which sum only, the plaintiffs are entitled to, as costs.</p>

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

<p>The owner of property, in order to recover of a common carrier for hire, damages for loss or injury to the property, — after proving a contract, express or implied, for the carriage of the goods, and the delivery of them to the carrier, — needs only to show further that the goods have not arrived or have received injury, unless the carrier proves the performance of his contract.</p> <p>A bill of lading signed by the carrier, acknowledging the receipt of the goods, “to be delivered in good order to A at B,” is prima facie evidence that they were in good condition when received by the carrier, but is not conclusive, and the carrier may prove that the goods were damaged before they came into his possession.</p> <p>In such a case, the burden is on the carrier to exhibit such proof.</p> <p>It is not important whether the words “in good order,” or “well conditioned,” or both, are used in the receipt or bill of lading, the phrases being substantially synonimous.</p> <p>Where the burden of proof is thrown upon one of the parties by the state of facts presented, it does not shift from one to the other as the weight of evidence varies by the introduction of fresh testimony, but rests ón the same party on whom it was thrown at first, until the proof is such as to present a new and distinct question.</p> <p>In a suit against a common carrier for hire, for loss or injury to goods delivered to him to carry, the burden is not on the owner to show afiirmatively that the loss or damage was occasioned by neglect or want of diligence on the part of the carrier, as would be required in the case of an ordinary bailee.</p>

On Exceptions to the ruling of Cutting, J. Debt on a bond purporting to have been given by Moan as collector of taxes in Trescott, dated August 15, 1854. Plea non est factum, with a brief statement. Held: July 8, 1854, and that, at that meeting, Joseph M. Bell was chosen collector of taxes; but it did not appear that he was sworn as collector, or acted as collector for that year.

Exceptions from the ruling of Cutting, J., — and on motion to set aside the verdict as being against law, &c. This was an action of assumpsit, against the defendant as acceptor of an order drawn by one Wilbur in favor of Bela Wilder & Co., payable when he shall sell certain specified wharf logs.

Exceptions from the ruling of Davis, J. The contract sued on in this action (the substance of which is indicated in the above note) appears entire in the .opinion of the Court. From the bill of exceptions, it appears that the defendants had a gang sawmill on tho English side of the river, and that, at least three hundred thousand feet of spruce, pine, and hemlock logs belonging to them, suitable to be sawed in a single sawmill, came into the boom.

<p>In an action for trover, the mere denial of conversion in the specifications of defence is only equivalent to a plea of the general issue, and is not sufficient; but if facts are alleged, which, if proved, would support such plea, the plaintiff will be required to prove the conversion: —</p> <p>As, — where the specifications set forth that the buildings which are the subjects of controversy, “ were at the time of the alleged conversion, the property of R., and a part of his real estate.”</p> <p>Having contracted to purchase a farm, F. erected buildings thereon; and after thirteen years occupation, abandoned the farm, which the owner afterwards sold and conveyed to R., against whom F. brought trover for conversion of the buildings, R. having sold and conveyed the farm to another person: — held, that the buildings passed to R. as a part of the real estate, notwithstanding R.’s grantor may have verbally agreed with F. that they were personal property; — for the title to real estate, of a subsequent purchaser, cannot be affected by such a verbal agreement.</p>

Trespass quare clausum, for cutting trees on part of .township No. 21, Middle division, Hancock county. Plea general issue.

Beported from JSRsi Prius, Cutting, J., presiding. Forcible entry and detainer. The respondent, at the hearing before the magistrate, pleaded the general issue, and in her brief statement alleged title in herself.

Exceptions from the ruling of appleton, J. This was an action of assumpsit, by the plaintiff as collector of taxes for the town of Ellsworth, to recover of the defendant $286, the balance of his tax remaining unpaid.

Reported from ITisi Prius, Appleton; J., presiding. Writ oe entry. Plea, general issiie. Both parties claim under Charles D. Robbinsthe demandant under his deed dated Eeb. 17th, 1858, duly acknowledged and recorded; the tenants under ’ the deed of ■said Robbins, by. Samuel G. Rich, his attorney, to the inhabitants of the town of Tremont, dated May 3d, 1854, who, on 21st of Dec., 1856, conveyed to said Lewis Nutter. The other defendant holds under. Nutter.

This was a suit in Equity, and has before been presented to. this Court, vide 48th Maine Reports, p. 400. It is again presented on demurrer to the bill.

Case against the defendant, as sheriff of the county, for alleged default of his deputy. Writ dated Oct. 18, 1860.

Assumpsit on an award, with counts for the original causes of action. The plaintiff and defendant were part owners of the barque Spirit of the Sea.

On Exceptions to the ruling of Rice, J. Case for alleged injury by detention of water from the plaintiff’s mill by the defendant’s dam. The plaintiff owned a mill on Chase stream in Monroe, erected in 1857. The defendant, in 1859, built a mill on Marsh stream, into which Chase stream flows, below the plaintiff’s mill, and a reservoir dam on Chase stream, above the plaintiff’s mill, by means of which dam he flowed 600 acres of bog land.

Exceptions from the ruling of Davis, J., at Nisi Prius. Tuts was a complaint under the statute for elowage, The bill of exceptions is not among the papers in the case; but, from the arguments of the counsel, it appears, that while the complaint was pending, the parties appeared and agreed to refer the whole matter to the determination of N. H. Hubbard, Esq., conferring on him all the powers which are by the statute conferred upon Court, jury and commissioners.

Reported from Nisi Prius, Cutting, J., presiding. Indictment containing two counts under the statute, and two at common law, for forging and uttering a deposition, used on the trial of a libel for divorce from the bonds of matrimony, in which the respondent was libellant. The respondent moved to quash the indictment, and, the motion being overruled, he excepted.

Reported from Nisi Prius, Appleton, J., presiding. This was an action of case against the late sheriff of the county of Penobscot, for the alleged default of his in not keeping and delivering over, to be taken on execution, certain logs by him attached on a writ in favor of the plaintiff against Lambert and Cowan, claiming a lien on said logs for labor thereon in driving. The writ in the original action was dated Aug. 13, 1855, and judgment rendered May 30, 1857.

Writ of entry to recover lot No. 11, 10th range, in Garland. Plea, general issue. The case was agreed to be submitted to the full Court on a statement of facts .agreed upon, a synopsis of which is given in the opinion of the Court, and it is unnecessary to repeat them here.

On Exceptions to the ruling of Appleton, C. J., at Nisi Prius. Trover for pine logs. Both parties claim under Brown & Lee, who owned the Jogs prior to Nov. 2, 1858, and were a firm engaged in the lumber business. By agreement of parties, the trial was by the Court, with right to except.

Assumpsit for money had and received. The evidence was reported from JSfisi Prius, by Kent, J., for the decision of the full Court.

This was an action of covenant broken. Charles O. Butman, being seized of the premises, conveyed them to the plaintiff in mortgage, May 6, 1851. April 6, 1855, the defendant, having come into possession of the premises through mesne conveyances, conveyed them to Hall Bagley, with covenants against incumbrances and of general warranty in the usual form. Dec. 13, 1856, Bagley, by deed containing similar covenants, conveyed the premises to the plaintiff.

Bill in equity. Cyrus L. Clark, Sept. 10, 1852, conveyed in mortgage to Samuel H. Blake, township No. 7, 11th range west from the east line of the State, to secure anote for $7665,97. Nov. 2, 1852, Clark conveyed the same premises by deed to Horace Jenness. Dec. 2, 1852, Jenness conveyed the same township in mortgage to Webster Kelley, the plaintiff’s intestate.

Writ oe entry, to recover possession of land mortgaged by Horace Jenness to the plaintiff’s intestate, for breach of condition. The facts are the same as in the preceding suit in equity. argued that the defence set up in the equity case, of an implied trust, is not available in the case at bar. ■ The question of trust is a matter oí equity, and a court of law cannot take cognizance of it.

Bill in Equity for the redemption of a mortgaged estate, situate in Brewer. The defendants claim that the right the mortgager to redeem has been foreclosed.

Exceptions to the ruling of Appleton, J. This was assumpsit in which the plaintiff claims to recover the amount paid to the collector of the defendant town as taxes — the payment of which he contests, on the ground that he was not an inhabitant thereof. The only question raised is his liability to taxation as an inhabitant of the defendant town.

These cases were submitted upon the printed volume of testimony, to the full Court, who, by an agreement of the parties, were authorized to render such judgment, orders, or decrees, in the respective actions, as the legal rights of the parties require. In the matter of damages, the Coui’t were to decide upon the amount, if any, which shall be rendered in each case upon the evidence legally admissible in such cases.

This was an action of trespass guare clausum, for breaking and entering the plaintiff’s close and barn, and taking and carrying away Ms horse. Pleadings, general issue, and brief statement of license to enter, or right to enter to reclaim property by plaintiff wrongfully obtained and carried upon his, plaintiff’s land.

On Exceptions to the rulings of Appleton, J. Libel against certain intoxicating liquors, claimed by the appellant, who had been acquitted upon the charge of keeping them with intent to sell them in this State in violation, of law. The claimant alleged and the evidence tended to prove that these liquors were in his possession as_ warehouseman, and that he had a lien upon them for trucking and storage.

<p>Reported from Nisi Prius, Appleton, C. J., presiding.</p>

<p>The purpose of § 1, of the Act of 1862, c. 127, was to extend the benefit of the Act of 1861, c. 63, § 6, to all in the service of the United States or of the State, and to relieve, to the extent specified in the Act, cities, towns and plantations from their liabilities for the support of the families of their inhabitants in such service.</p> <p>By this Act, they woie authorized and obliged to render aid to the families of all their inhabitants, who were actually engaged in the military service of the United States or of this State.</p> <p>No recovery can be had, by the city, town or plantation so furnishing aid, against the city, town or plantation, where such inhabitant may have his settlement.</p> <p>The claim for supplies furnished under this Act is against the State, as provided therein and thereby.</p> <p>No disabilities are imposed upon or incurred by the soldier or sailor whose families receive such aid, nor by their respective families.</p>

Bill in Equity. The bill states that the plaintiff is the widow of Samuel Elder of Portland, who died Oct. 15, 1856, leaving a will and codicil, which were duly proved in December, 1856.

On an agreed statement oe tacts. This was an action of covenant broken, to recover interest on two instruments issued by the defendants, covenanting to pay the bearer one thousand dollars (each) in twenty years, with interest semi-annually.

On exceptions to the ruling of Davis, J. This case came before the Court at Nisi Rrius, upon a motion that the proceedings of a meeting of bond holders of York and Cumberland Railroad Company, be ratified and confirmed.

<p>These cases were presented on Exceptions to the rulings of Davis, J., at Nisi JPrius.</p>

Exceptions from the ruling of Davts, J. 'This was an action of trover for goods.

On Exceptions from the ruling of Davis, J., at Nisi JPrius. Assumpsit upon a policy of insurance.

This was an action, by the plaintiff as Superintendent of Reform School, to recover to the use of the State, from the defendant town, for expenses incurred for the subsistence and clothing furnished one Frank L. Pinkham at the reform school, and expense of transportation of him to said school. The statute on which the suit is founded, is recited in the opinion of the Court.

Exceptions to the ruling of Davis, J. This was an action of replevin for a quantity of cheese.

On Exceptions to the ruling of Kent, J., at Nisi Prius, and on a motion for a new trial. Assumpsit against the defendant as indorser of a note of hand dated March 21, 1856. The defence was, want of notice. Nathaniel Badger, notary public, called by the plaintiffs, testified that he had the note in suit on the last day of grace; made a demand on the principal, and he did not pay it; made notices to the indorsers.

On Exceptions to the ruling of Davis, J., at Nisi Prius. ■ This was an action of the case for an alleged unreasonable detention of the water in' a mill stream in Raymond. The plaintiff and defendants were owners of mill privileges bn the stream, that of the defendants being above the plaintiff’s. The title deeds of each party were produced.

<p>When ono lias boon elected a county commissioner for three years, and resigns during the first year, it is provided by law that the Governor, with advice of the Council, shall appoint a person who shall hold the office until the first of January after another has been chosen to fill the place.</p> <p>If, at the next election, a person be chosen, he will be entitled to hold the office only for the unexpired term of the officer who resigned, commencing on the first day of January after his election.</p> <p>The person chosen, at the election immediately preceding the expiration of his term, is elected for the term of three years.</p>