Volume 51 — Maine Reports

On Report of the evidence before Kent, J., at Nisi JPrius, on exceptions, and on motion to set aside a verdict for the defendants. The action was assumpsit on a memorandum in writing, which is given in the opinion of the Court. . In defence, the defendants proved certain votes of the directors which will be found in the same opinion.

Trespass guare clausum. The plaintiffs claim to be tenants in common with one Greorge Blake of the mill, privllego and machinery for a sash and blind factory, in New Gloucester, described in the writ, which was dated Nov. 29, 1859. Each defendant pleaded the general issue separately. Harris, by brief statement, alleged that he was the owner in whole or in part of the premises, that the defendants were not tenants in common, and that Blake was never a tenant in common therein.

Bill in Equity. The bill sets forth, that James Smith of Portland, being possessed of certain real estate in said Portland, on March 31, 1836, mortgaged the same to Neal Dow; that, on January 23, 1841, J. Gr.

<p>To render the doings of a town meeting legal, it should appear that attested copies of the 'warrant for the meeting wore posted in public and conspicuous places, and that the places of posting were within the town.</p>

Exceptions from the ruling of Walton, J., in overruling the respondents’ objections to the acceptance of the report of the referees and directing the same to be accepted. This was a complaint under the statute for flowage of land, and was referred by rule of Court. The referees reported that this complaint was barred by a judgment of a former Court, obtained by the complainant against the respondents.

On Motion to set aside the verdict. This was an action on a policy of insurance upon the plaintiff’s stock of clothing in his store at Portland, to the amount of $2000. The verdict was for $1060.

<p>Exceptions from the ruling of Davis, J.</p> <p>This was an action of assumpsit on a promissory note.</p>

<p>Where, by statute, damages in a specified ease were to be ascertained in the same manner that damages, occasioned by the laying out of highways, are, by law, determined; — if the county commissioners issue a warrant for a jury to assess the damages, on the application of persons claiming damages, without giving notice, to the party'adversely interested, of the pendency of such application, the proceedings under the warrant will be illegal, and certiorari will lie to quash the erroneous proceedings.</p>

This was an action of trover for the conversion of a dwellinghouse and outbuildings, and was submitted upon an agreed statement of facts, and depositions; the Court to draw inferences from the facts, and such of the evidence, as is legally admissible, as a jury might.

Exceptions from the ruling of Cutting, J., and on motion by defendants to set aside the verdict as being against law and the evidence. Held: that, to show that persons carry on business as partners, of as jointly associated, it is sufficient to prove that they have admitted the fact or have held themselves out as such.” Boyer v.. Weston, 16 Maine, 261; Gaseo Bank v. Hills, 16 Maine, 155!

Exceptions from the ruling of Rice, J. Writ of Entrt. The demandant had introduced his evidence of title. The counsel of the tenant moved the Court to direct a nonsuit, on the ground that the testimony (elicited on cross-examination of plaintiff’s witness) showed that the purchase of the premises demanded, by the plaintiff, constitutes champerty and maintenance. The motion was sustained and nonsuit directed by the presiding Judge. The demandant excepted.

<p>Where a policy of insurance upon the interest of a mortgager was to be void if the estate shall be alienated or incumbered by sale, assignment, or otherwise ; and his right to redeem the property was seized and sold oil a writ of execution; it was held that the sheriff’s sale to a third person of the right of redemption was an incumbrance upon the property; and, if the title, thus acquired, is perfected by lapse of time, it constitutes an alienation of it.</p>

On agreed statement oe the case by the partios. Writ oe Error to reverse a judgment obtained by the defendants in error against the plaintiffs in error, at the term of this Court-for the county of Cumberland, in October, 1858, and rendered the 29th day of November, 1858. The writ is dated November 16, 1861. The errors assigned are : — 1.

<p>Suit in Equity, submitted on bill, answers and proofs.</p> <p>The case was argued in writing by</p>

Suit in Equity. The bill alleges that Thomas McLellan, complainant’s testator, on the twenty-seventh day of July, 1857, became owner, with defendants, of barque Susan W. Lind; said complainant of three-eighths, said defendant Woodbridge C. Osborne of three-eighths, said defendant Amos Chase of one-eighth, and said defendant Samuel II. Swectser of one-eighth ; and so continued until the eighth day of September, 1859.

Exceptions from the ruling of Davis, J. This was an action on a policy of insurance. The general issue was pleaded and joined. The execution of the policy, the burning of the property during the life of the policy, and the preliminary proofs of loss, were admitted.

On Report. . . This was an action oí assumpsit, to recover back money____ paid, under protest, to the collector of the defendant corporation, to discharge a tax, which the plaintiff contended was illegally assessed.

Eeported from Nisi Prius by Davis, J. This was an action of assumpsit upon a note and an account annexed to the writ. The defendant pleaded the general issue, and the statute of limitations. An auditor was appointed by the Court, whose report contained all the evidence offered.

This was an action of debt upon a poor debtor’s bond, given to relieve tbe principal obligor from arrest on execution. The parties agree upon the following statement of facts :■— The defence is the record of proceedings before two justices, by whom the debtor had been'allowed to take the oath prescribed by the statutes for his discharge from the arrest.

<p>When a policy of insurance was to be void if there should be .any alienation or change in the title, any material change, though not by alienation, will have that effect.</p> <p>Thus, where the plaintiff obtained insurance on an undivided half of a dwellinghouse, and afterwards, on the petition of his co-tenant, partition was made on judgment rendered therefor, it was held to be equivalent to an alienation and a purchase.</p> <p>The policy being void as to the building, the plaintiff could not recover for loss of furniture insured thereby. The contract being indivisible, was wholly void, if void in part.</p>

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

<p>Suit in Equity. • This case was heard upon demurrer to the bill.</p>

<p>Suit in Equitt. This case has been before the Court at a former term; ante, p. 85.</p>

Exceptions from the ruling of Davis, J. This was a writ oe entry to recover a parcel of land in Raymond. The demandant claims under a mortgage from one Allen to William B. Douglass, who died about tbe year 1844, intestate. Louisa D. Johnson, Emery Douglass and the demandant are the heirs of said deceased. The said Louisa, by deed of quitclaim, conveyed her interest to said Emery and he, by quitclaim, to the demandant.

The case was presented on exceptions, taken by Jones, to the ruling excluding the testimony of the co-defendant,__1 on his trial.

Exceptions from the ruling of Goodenow, J. This was an action on the case to recover for personal injuries, and for damages to plaintiff’s horse and wagon, alleged to have been occasioned in consequence of a want of railing on a bridge in the highway in the defendant town.

<p>The general rule in equity is the same as in actions at law, that money paid or other property conveyed under a mistake of law, with a full knowledge of all the facts, cannot be recovered back.</p> <p>But when one person induces another, without any consideration, to convey real estate to him, under their mistake of fact arising from their ignorance of the law, and the property cannot in good conscience be retained, a re-conveyance will be decreed upon a bill in equity therefor.</p> <p>Thus: — The defendant, having no legal interest in an estate, represented to the plaintiffs, who were the only heirs'of the decedent, that some persons had informed him that certain others were joint heirs with them, while other persons had informed him, that they, the plaintiffs, were the only heirs ; that the others, claiming to be heirs, had conveyed to him their several interests therein, to enable him to contest a will by which a portion of the property had been devised to strangers, he giving them back an agreement to pay them their several shares of one-tweil'th each, of the proceeds thereof; and the plaintiffs thereupon, being ignorant of the law regulating the descent and distribution of estates,, and consequently being mistaken as to who were the heirs of said decedent, conveyed their interest in the estate, without any consideration, receiving an agreement to pay them one-twelfth each of the proceeds thereof: —-Upon these facts, it was held, that, if the defendant knew that the plaintiffs were the only heirs, and that they were ignorant of that fact, he obtained the property from them fraudulently; if neither of the parties knew who were the legal heirs, no consideration having been paid for the property, the defendant ought not, in good conscience, to retain it; and the plaintiffs were entitled to a decree for a reconveyance.</p>

<p>The defendant sold plaintiff all his “ apparatus for making soap — all ashes and soap on hand,” &c., “also all his trade and customers — Held, that the last clause' contains no such latent ambiguity as would require that the construction of the contract should be submitted to a jury, with parol testimony tending to show the intention of the parties : —</p> <p>That the real intention of the parties cannot be doubtful when the entire contract is considered; and a sale of “ all his trade and customers,” must be legally interpreted, that the defendant would not interfere with the plaintiff within the circuit of his usual custom; and, evidence that he had so done, was admissible: —</p> <p>Such a contract is not against the policy of the law, and, if it were, the defendant should not be permitted to make that defence while he retained the consideration paid.</p>

On agreed statement of facts. ■ This was a writ of entry. From the case it appears that, at the January term of the Supreme Judicial Court for York county, 1855, one Josiah F. Leach recovered judgment against one Asa Leach, his father, for the sum of $624,24, debt, and $8,23, costs, on which execution was issued and satisfied by a levy and extent upon land described in the plaintiff’s writ, on the twentieth day of February, 1855, which execution was duly returned and said…

On Report from Nisi Prius. This was an action of trover for a box board sawing machine, an edging saw and table, a cutting saw and apparatus and two mill saws, all alleged to bo of the value of five hundred dollars.

Bill in Equity. The case was beard on bill, answers and proofs. The defendants controverted the validity of the plaintiff’s title to the estate which he sought to recover, on the ground, that the attachment by virtue of which he claimed title, -was invalid, because the writ on which the attachment-was made, contained general money counts without any specification of the claims to be proved under them.

<p>Exceptions from the ruling of Rice, J.</p> <p>This was a trustee process. The supposed trustees disclosed that, prior to the service of the plaintiff’s writ on them, the said Asa Dalton left with them for collection a note against Joseph Hobson, jr., payable to said Asa, on which the said Hobson paid to said trustees $362,77, which was in their hands at the time of said service, subject to the order of the said Asa. That, since said service, they had been notified by said Asa Dalton, that the said sum so collected by them of Hobson belonged at the time- of its collection and still belonged to the estate of Benjamin Dalton, deceased, and that he, the said Asa, claimed the same as the executor of the said Benjamin.</p> <p>Thereupon the said Asa made written application to the Court, setting forth said claim, and praying to be allowed to become a party, as executor aforesaid, to prosecute his alleged claim to said fund, and was admitted to become a party for that purpose, and thereupon filed his allegations of said claim; and the plaintiff in this suit answered in writing thereto, by way of plea, that, at the time of service of said writ on said trustees, the said fund was not the property of the said Ása as executor, nor of the said’ Benjamin’s estate, but was the- property of the said Asa Dalton in his own right, and tendered an issue to the country, which issue was joined, by said executor.</p> <p>It was proved and admitted, that, on April 1, 1851, the said Hobson gave his note to the said Benjamin Dalton, then living, for $247,78, in six months and interest.</p> <p>The said Benjamin died prior to 1856, leaving a large estate, some sixty thousand dollars, as stated by one of the executor’s witnesses. The last will of said Benjamin was proved in 1856, and the said Asa was appointed his executor. On the 1st day of November, 1857, the said Asa called on said Hobson for payment of said note to Benjamin, that being the day he was first informed of its existence. Hobson replied that it was not convenient for him to pay at that time, but he would renew it. That Hobson then figured up the interest and made a new note for the amount, with a surety, payable to Asa Dalton, which said Dalton received, and surrendered the old note to Hobson.</p> <p>The said Asa Dalton, on calling for payment of said note, said to Hobson that he wanted the money to buy a house with.</p> <p>The note so taken by said Asa from Hobson on Kov. 1, 1857, was afterwards left by said Asa with said Hayes. & Nye, the trustees, for collection, and they entered the same on their register of demands, as the property of Asa Dalton. And, in 1858, brought a suit on said note in the name of Asa Dalton, (not as executor,) which suit was afterwards’ settled by said Hobson, and the said Hayes & Nye received thereon the sum by them disclosed. No copy of the inventory of said Benjamin’s estate, nor any evidence of the state of said Asa’s accounts as executor, either by records or copies of records of Probate Court, or otherwise, was produced in evidence.</p> <p>The plaintiff in the action, on trial of said issue, contended that the said Asa, by giving up to Hobson the said note to Benjamin,, and taking therefor a note to himself, in his own name, and not as executor, and by bringing an action thereon in his own name, (not as executor,) and by said note being so left with and entered by Hayes & Nye on their register, (not as executor of Benjamin,) and the receipt of the ’ proceeds thereof by them as aforesaid, the said sum in the hands of said trustees had become, and was, the property of the said Asa Dalton, in his own right.</p> <p>But the Court instructed the jury that the said note or fund did not.thereby, as matter of law, become the property of said Asa, by the said giving up of said old note to Hobson, and taking said note of November 1st in his, the said Asa’s own name, and bringing suit upon the same in his own name, and the said entry by his attorneys, and said leaving said note with them, and said payment to them by Hobson; nor by any nor all of said facts. That, if there were ear marks upon the property or fund, by which it could be traced back to Benjamin Dalton’s estate, if the surrender by said Asa of a note payable to said Benjamin was the consideration of said note of Hobson to Asa, and the proceeds could be traced to the present funds in the supposed trustees, the property would not be changed from Benjamin’s estate, and vested in said Asa, in his own right, as matter of law, by said facts, and acts of Asa. The verdict was, that the fund belonged to Benjamin Dalton’s estate.</p> <p>After the verdict the Court ordered the trustees to be discharged. The plaintiff excepted.</p>

On statement of facts. This was an action of assumpsit to recover the amount of a reward offered by a vote of the defendant town, for the apprehension and conviction of the perpetrator of a murder… Held: that the statute last cited imposed no restriction upon the body of the inhabitants in any town, as to the amount to be offered; and it cannot be protended that any is put upon them by the statutes of this State.

On agreed statement oe eacts. This was an action of debt oil an award of arbitrators, made by virtue of a written submission entered into by tbe parties under their seals.

Exceptions from the ruling of Walton, J., at Nisi Prius. This was an action on the case, to recover damages for an injury received by the plaintiff by reason of a defect in a way in the city of Biddeford.

<p>Exceptions from the ruling of Walton, J., at list Prius.</p> <p>Assumpsit upon a contract in writing.</p>

<p>Exceptions from the ruling of Goodenow, J.</p> <p>This was an appeal from the decision of the county commissioners of the county of York, "that they have no jurisdiction under the petition” of said Hanson and others; which petition was to lay out a county road from a certain point in the town of Lyman, thence through a portion of the town of Dayton to the city of Biddeford to Chestnut street, thence along said street to Main street, &c.</p> <p>At the term of the Supreme Judicial Court, when the petitioners’ appeal was entered, their counsel moved for the appointment of a committee as the statute provides; the respondents objected, on the ground that an appeal does not lie, in such cases, and moved that the appeal he dismissed, which the Court ordered. Thereupon the appellants excepted.</p>

<p>If it does not affirmatively appear from the justices’ certificate of discharge of a poor debtor, or from the proofs in the case, that the justices were “ disinterested,” the certificate will not defeat an action on the bond. Davis, J., dissenting.</p> <p>H seasonably moved for, the Court will allow an amendment of the certificate.</p>

Exceptions from the ruling of Appleton, J. This was an action of assumpsit, upon the written agreement of the defendant with the plaintiff, dated January 15, 1853, in these words; — Let my brother, Evat Willard, have what corn and flour he may want, on commission, and I will be responsible for the amount sold by him, for you, on commission.” This writing was read in evidence without objection.

On Exceptions and statement of facts. This was an action of assumpsit on two promissory notes hereafter described. The plaintiffs were described in the writ as citizens, of Massachusetts, and as assignees of Joel M. Holden of Newton, in said State, an insolvent debtor. At the first term, in May, 1863, the plaintiffs moved for leave to amend their writ, by striking out the words describing them as assignees.

<p>Reported from JSTisi Prius, Kent, J., presiding.</p> <p>Assumpsit upon a promissory note signed by Stevens & Staples, the defendant and three others. From the case it appeared that Stevens & Staples were the principals in said note, which was of the tenor following : — "Oxford, April 18, 1848. For value received, I promise to pay E. A. Holmes, or order, three hundred dollars in one year and interest.” The defendant pleaded the statute of limitations. Two of the several indorsements were admitted to he written in the hand of the defendant, and these payments purported to have been made by him.</p> <p>The facts in the case, and the questions of law argued by the counsel, will be readily perceived from the opinion of the Court.</p>

<p>On the trial of an indictment for murder, the prisoner’s testimony before the coroner’s inquest upon the body of the person alleged to have been murdered, given without objection by him, before his arrest, though after he had been charged with the murder, and after being cautioned that he was not obliged to testify to anything which might criminate himself, and not purporting to be a confession, is admissible as evidence against him.</p>

Reported from Nisi Prius, Walton, J., presiding. This was a writ oe entry, dated July 30, 1861. At the November term of this Court, (second term,) the tenants pleaded the general issue, which was joined, and filed specifications of defence. At the November term, 1862, the tenant Willis filed a disclaimer, or consent that plaintiff might take judgment of part of the demanded premises.

On exceptions to the rulings of Dayis, J., and motion TO SET ASIDE VERDICT. Held: a grant of a mill passes the right to the water also,” and •the land and privileges used with it. Coke Litt., 4-5 ; Bacon’s Abr., Grant I, 4; Garden v. Tuck, Cro. Eliz., 89 ; 4 Cruise’s Dig., (Greenl.

Exceptions from the rulings at Nisi JPrius of Tenney, C. J. This is a writ of entry for a ti’act of land and buildings thereon, situated in Woodstock. The writ is dated September 24, 1860. Plea, general issue. The demandants claim title by virtue of a warranty deed of the demanded premises to them, from Joseph Frye, dated March 15, 1856, acknowledged same day, and recorded March 17, 1856. Consideration named in the deed is $2000.

On statement op pacts. This was an action of assumpsit to recover the price of intoxicating liquors. The liquors were sold in Boston, Massachusetts, by the plaintiffs to the selectmen of Buckfield, who purchased them for that town in their official' capacity.

<p>On Report.</p> <p>This was an action on the case to recover of the defendants damages for throwing large quantities of slabs, edgings and other waste stuff from their sawmill at Berlin, into the Androscoggin River, and abandoning it to float down the river and mix with the plaintiffs’ timber and fill up their pond or reservoir for logs, and greatly retarding the operations of their mill.</p> <p>The plaintiffs offered testimony tending to prove the following facts: — that the Androscoggin River is a public highway, and has been used for many years for the purpose of floating rafts .of timber and logs over and down the same; that, in 1854, they became the owners of Town’s island, situated in Bethel, and formed by the Androscoggin; and of the main land opposite said island, and on the southerly part or branch of the river; that, in said year, they built a steam sawmill, at a large expense, on said main land and opposite said island, near the branch south of said island, and have been in the use and occupancy of the same ever since; that they extended a slip from said mill to said branch for the purpose of drawing logs therefrom to said mill; that above Town’s island, and separated from it by a narrow channel, is Clark’s island — Town’s island consists of about forty acres — Clark’s island being much smaller; that the channel, northerly of Town’s island, is about seventeen and that southerly of it is about six rods in width, and that about four-fifths of the waters of the river pass down the former and the other fifth down the latter channel; that, tor the accommodation of their said mill, and to constitute said southerly branch opposite Town’s island a reservoir, or mill pond, to detain and hold logs for the use and to be manufactured at said mill, the plaintiffs, in 1854, made the following erections; that they so constructed a boom from their said slip across the southerly branch that they could unfasten it at one end at pleasure and let it swing down stream with the current against the bank; that, about six rods above said boom, in the centre of the branch, they built a pier; that, about eight or ten rods further up stream, where said branch is about eleven rods in width, they constructed two other piers, opposite each other, and near to either shore, called jamb piers; that opposite, and extending above and southerly of said two piers, and flanked by a high bank, is about four acres of low land, of the plaintiffs’, and on which, in high water, the plaintiffs could float logs for the use of their mills; that they extended a boom across the channel, between said islands, which could be loosened at the xippor end at pleasure, and thus leave the channel- unobstructed; that, about twenty-five hundred feet above Clark’s island, they built a pier in the center of the river, and from it extended a guide boom to the head of Clark’s island; also, another boom up stream from said pier about twenty-five hundred feet, to the northerly shore of the river, and fastened the same to a tree on the main land; that these acts were done with the consent of the owners of Clark’s island and of the land owners upon each side of the river; that, when logs were running in the river, other than their own, they would unfasten the upper portion of their boom fi;om said pier and the lower portion from the head of Clark’s island, and, from bends in the river and the force of the current, the upper portion would be carried against the bank, and the lower end of the other portion into the center of the stream; that they would unfasten the upper end of the boom between the islands, and one end of the boom at the slip, and the two latter would swing down stream, and thus leave the river entirely unobstructed; that, when logs of other owners were not running, they would swing and fasten all of said booms, and, by means thereof, and of said piers, be enabled to turn their logs into, and hold them, in said southerly branch, above their mills and below the head of Town’s island; that, when said branch was thus filled, the logs and floating matter, which came down the channel and southerly of Clark’s island, would pass ofF and down stream, in the channel between said islands ; that, whenever the water was of sufficient height to float their logs into said southerly branch, or pond, large quantities of slabs and edgings, and other refuse stufF made at sawmills, for the past five or six years, would come down said river and be floated and carried into said branch, or pond, and that the same could not be separated from the plaintiffs’ logs before entering said branch, or pond; that said slabs and edgings come down in such quantities as to occupy one-third of the space in said pond, and so intermix with and confine their logs, that .they were unable to move them or adjust them for the purpose of being drawn up said slip ; that said slabs and edgings prevented their swinging a boom on the bank of said branch opposite said low land, to hold logs for the use of said mill, while the logs of other owners were being passed by; that, while sawing at their said mill, it requires one man, at least, all the time, to separate said slabs and edgings from the logs and pass the same down stream, and that it frequently became necessary to stop the operation of said mill, employing about twenty-five men, to clear out and get •rid of said refuse matter.</p> <p>They also offered testimony tending to prove that it is, and has been the custom of mill and log owners on said river, to construct and use piers aud booms necessary and proper to stop and hold logs for the use of their mills ; and also to build such side dams to operate their mills as do not interfere with the navigation of the river. Upon cross-examination, there was also testimony tending to prove that mill owners on the river for years past had been accustomed to throw the slabs and other refuse stuff from their mills into the river, to rid themselves of it.</p> <p>The plaintiffs also offered testimony tending to prove that defendants constructed mills at Berlin Falls, in the State of New Hampshire, in 1853, that they have manufactured from three to eight millions feet of lumber in the same annually ; that two thousand feet of lumber produces about oue cord of slabs and edgings, aud that the defendants have thrown the same into said river at said falls; that the defendants’ mills comprise two gangs, two single saws and other machinery; and that the slabs and edgings, thus thrown in by the defendants, are a part of the same floated down the river, and into their pond; that the natural current of the river would convey about one-fifth of the floating matter down and through said southerly branch, and the balance down said northerly branch, and that the northerly branch is of sufficient floating capacity for the- use of the public; that uo mills of anything like or near.the manufacturing capacity of the plaintiffs’ were erected on the Androscoggin prior to the defendants’.</p> <p>The plaintiffs admit that there are two other large mills at said falls, and that the owners of the same have thrown their slabs and edgings into said river to some extent.</p> <p>There was no proof offered of any obstruction or diversion of the water by means of any drift stuff lodging or sinking on the bed of the river or pond, and plaintiffs’ proof tended to show that, in the natural state of the river, about four-fifths of the logs aud drift stuff, or other floating material, would go down the northerly branch of the river, and about one-fifth on the southerly branch; that, if it were not for the plaintiffs’ sheer boom, not more than one-fifth of the defendants’ stuff would go into the plaintiffs’ pond, and but for the pier and booms of the plaintiffs, below their mills, that one-fifth could all pass on and not be detained.</p> <p>The drift stuff, complained of in this action, is all floating drift stuff which would pass on and not be detained but for the piers and booms, and sheer booms of the plaintiffs.</p> <p>Upon this testimony, the cause was, under the direction of the Court, taken from the jury, and, by consent of parties, submitted to the Court to determine whether, upon the testimony offered by the plaintiffs, this action can be maintained.</p> <p>The case was argued by</p>

Exceptions from tlie rulings and instructions of Walton, J., at Ifisi Prius; and on motion of the defendants to set aside the verdict. Held: pro tanto, a nuisance. See also Angelí on Watercourses, §§ 554, 555.

Exceptions from the ruling at Nisi Prius of Kent, J. This was an action under 3d sec. of chap. 45, of Revised Statutes, to recover back money alleged to have been paid as usurious interest by plaintiff to defendant. The plaintiff offered evidence tending to show that he obtained on loan from defendant $500 for one year, and agreed to pay 12 per cent, interest therefor.

On exceptions to the ruling of Appleton, C Writ oe Review. The facts are sufficiently set forth in the opinion of the Court. 1. An alteration by a stranger, whether fraudulent or otherwise, will not make an instrument void, if it sufficiently appears what.the instrument was before the alteration.

Exceptions from the ruling at Jw JPrius of Barrows, J. Replevin. The defendants claimed that the sheep replevied were the property of the female defendant. It was admitted that the defendants were husband and wife. There was evidence tending to show that the wife was the active party in taking the sheep.

<p>The statute of 1853, c. 41, § 3, relating to the construction of railroads across highways, is not retroactive.</p> <p>The provision in the charter of the Androscoggin railroad company, that “ the railroad shall be so constructed as not to obstruct the safe and convenient use of the highway,” is a continuing obligation, requiring the company to keep the railroad so constructed at all times.</p> <p>But a town is not thereby absolved from its obligations to see that the highways therein are not rendered unsafe by the crossing of a railroad.</p> <p>If the highway at a railroad crossing is defective and the town has notice of it, it is no defence that the particular defect was one which the railroad company ought to have repaired.</p>

Statement of facts agreed. This is an action on the case. It was agreed that the defendants organized and built their railroad under and according to their charter. In 1847, Nash and Jones owned a lot of land in Lewiston, over which the defendants located their railroad, and thereafter said Nash and Jones conveyed to them, by deed of warranty, the land included in their location, for the purpose of constructing their railroad upon it.

<p>The return of an attachment of real estate by an officer to the Registry of Deeds, in which the name of only one of several defendants is given, is sufficient to hold the real estate of the defendant named, but insufficient in respect to that of the others.</p> <p>The return “ S. J. C., August term, Kennebec county, 1856,” sufficiently shows to what Court and term the writ is returnable.</p> <p>When the amounts claimed in the several counts in the writ in all exceed the “ ad damnum,” the statement of the “ ad damnum” as “ the sum sued for” is a compliance with the law in an officer’s return to the Registry of Deeds of an attachment of real estate.</p>

On Exceptions to the rulings of Appleton, J. Assumpsit for services, which it was admitted had been performed. There was evidence tending to show that the plaintiff agreed to take her pay out of the store of Lane & Stinchfield;” and that she demanded her pay of Lane, who was then one of the selectmen of the defendant town. The counsel for defendants maintained that the action could not be maintained without proof of a demand at the store of Lane & Stinchfield.

On Exceptions to the ruling of Walton, J., and on motion to set aside the verdict as being against the evidence. No question of law arose on the motion. This was an action of the case for injury alleged to have been received by the plaintiff by the defendant’s horse and sleigh running against him on the highway, in consequence of the negligence of the defendant, or his servants.

On Report from Pfisi Prius, Walton, J., presiding. Replevin for 1329 cords of wood, which the defendant had attached as the property of the Androscoggin Railroad Company. The plaintiffs claimed title under two mortgages, which are sufficiently described in the opinion, and under chapters 450 and 475 of the special laws of 1860.

<p>Bill in Equity. The case was submitted on an agreed statement of facts, which are.sufficiently stated in the opinion.</p>

On Report from Nisi JPrius, Daneorth, J., presiding. Assumpsit to recover money paid by the plaintiff as highway surveyor for repairing the highway in his district. It appeared that the' plaintiff expended upon the highway, in his district, a sum less than the amount of the tax bills committed to him, but greater than the amount received by •him on those bills, after due notice to the persons taxed.

<p>On Exceptions, by defendant, to the rulings of Barrows, J., and on motion to set aside the verdict.</p>

On Exceptions to the ruling of Daneortii, J. Trespass to recover the value of a quantity of split stones used by the surveyor of the defendant town in constructing a culvert across the highway. The stones were lying upon the land taken for the highway, when it was located. The surveyor, who was also one of the selectmen, claimed the right to use the stone as materials found on the land taken for the highway.

<p>Offences of the same nature, though different in’degree, may be charged in one indictment. <</p> <p>Exceptions do not lie to the refusal of the presiding Judge to compel the prosecuting officer to elect upon what counts in the indictment he will proceed.</p> <p>When the collective value only, of the articles alleged to be stolen, is set out in an indictment for larceny, judgment will not be arrested, if the jury find the respondent guilty of stealing all the articles named.</p> <p>Although an indictment contains several counts for offences of the same nature, but of different degrees, and the jury return a general verdict of guilty, judgment will not be arrested; but sentence will be given for the offence of the highest grade charged in the indictment.</p>

<p>Exceptions from the ruling at JSPisi Prius of Goodenow, J.</p>

<p>Reported from Nisi Prius, Kox, J., presiding.</p> <p>This was an action of dower, claimed by the plaintiff as the widow of Sullivan Lothrop, who conveyed the premises to George K. Stinchfield in the year 1834. The plaintiff signed the deed of her husband to Stinchfield; but there are no words therein indicating an intention of releasing her right of dower. The defendant claims as grantee of Stinchfield.</p> <p>The plaintiff offered evidence of the death of said Sullivan Lothop; and, to prove that they were married, she offered certificate of their marriage, and also offered the testimony of a witness who was present at her marriage.</p> <p>Job Prince, called by the plaintiff, testified : — I called on defendant, Oct. 9, 1861; asked him if he was in possession of the farm in question and if he was owner, and he said he was; I told him I came as agent and attorney of Abigail Lothrop, widow of Sullivan Lothrop, to demand her dower and that he might consider a demand made by me for her; he said he would admit the demand made by me but he did not consider she was entitled to her dower, as she had signed the deed. The plaintiff had given me verbal authority to act for her and I made the demand verbally.</p> <p>The defendant offered the deposition of said Stinchfield, (subject to all legal objections.) The deponent states, that said Sullivan Lothrop and his wife signed and executed the deed to him at the same time; that he paid $625 as the consideration for the conveyance ; that the plaintiff refused to sign the deed unless she was paid a sum in addition to that already named; she finally consented to sign the deed releasing her dower for five dollars, which deponent paid her for that purpose.</p> <p>A default was entered, subject to the opinion of the full Court on report of the case.</p> <p>The case was argued by</p>

Exceptions from the ruling at Nisi JPrius of Datis, J., charging the trustee, upon the following disclosure : — Interrogatory lsi. Had you on the 10th of August, 1861, at the time the writ in said action was served on you, any goods, effects, moneys or credits in your hands or possession of the Androscoggin Railroad Company ? Answer.

Exceptions from tire ruling at Nisi Prius of Appleton, J. This was an action of assumpsit to recover the amount of a tax assessed on the plaintiff by the assessors of Industry for the year 1858. It was admitted that the plaintiff paid the tax after arrest and commitment by the collector, and that the amount was paid into the town treasury; that the tax was legally assessed, if the plaintiff was. an inhabitant of the town of Industry on the first day of April, 1858.

Exceptions from the ruling at Nisi Prius of Appleton, J. This was an action of assumpsit on a note, or written, contract, signed by the defendant, of which the following is a copy :— November 9th, 1841. 8733,33. For value received of Ezekiel Porter, I promise to pay him or his order seven hundred and thirty-three dollars and thirty-three cents without interest to be allowed on settlement, no interest to be reckoned.

<p>On Repoet from Nisi Prius, Kent, J., presiding.</p> <p>Writ op Entry. The facts are stated in the opinion.</p>

On Exceptions to the rulings of Rice, J. Writ oe Entrt as on a mortgage. The defendant claimed that usurious interest was included in the demand-ant’s claim. The case is stated in the opinion.

On Exceptions, to the ruling of Appleton, J. This was an appeal from the decision of the county commissioners of Franklin county laying out a highway. The respondents moved to dismiss the appeal, because it was not seasonably taken; and the presiding Judge, pro forma, granted the ¡notion, and the appellants excepted. The case is. stated in the opinion.

On Exceptions and Report. Writ oe Review. The defendant pleaded in abatement, that the review was granted only in case defendant should fail to comply with certain terms, and alleged that he had complied with the terms.

<p>Generally when a plea in abatement ia adjudged bad on demurrer, the judgment is “respondeos ouster.” •</p> <p>But when a plea “pais darrein continuance’’ is adjudged bad on demurrer the judgment is final against the defendant.</p>

<p>If, after the commencement of a real action, the tenant abandon the premises and the demandant take possession, the action cannot be further maintained for the purpose of recovering the demandant’s costs.</p> <p>But a mortgagee, under such circumstances, may maintain his action for the purpose O'f foreclosing his mortgage.</p> <p>By prosecuting such a suit to final judgment and execution in his favor, the mortgagee waives foreclosure in any other mode, and the mortgager’s right to redeem will be extended accordingly.</p>

<p>On Exceptions, to the ruling of Walton, J.</p>

<p>If one, having no interest in a vessel and merely acting as agent for the owners, insures the vessel on his own account, the policy is void.</p> <p>One undertaking to act as agent of the owner, in insuring a vessel, is bound to follow the instructions of his principal and to eífeet a valid insurance ; though he may be excusable as to a doubtful point Of law.</p> <p>If, in such ease, the agent does not obtain a valid policy which might be enforced at law, he is responsible to his principal for the actual damages sustained by him.</p> <p>If the company was in good credit at the time the insurance was effected in such a case, and subsequently becomes insolvent, the damages will depend upon the ability of the company at the time the right of action accrues.</p>

<p>A mere change of property from one form to another cannot, in itself, divest the owner, or those who have distinct and immediate rights in the thing in. its original shape, of their property in it.</p> <p>As a general rale, in such cases, the right attaches to the property in its new form, so long as it is capable of being identified and no rights of a Iona fide purchaser, for a valuable consideration, and without notice, intervene.</p> <p>Thus, if the mortgager of a vessel, without the assent of the mortgagee, sell it with warranty of title and receive, as a consideration for the sale, promissory notes, the mortgagee may elect to enforce his right to the vessel, or may follow in equity the proceeds in the form of the promissory notes in the hands of the mortgager, or his representative; but he cannot do both.</p> <p>In such case, the law imputes a trust in the mortgager during his life ; and that trust follows the notes in the hands of his representative.</p> <p>In such case, as the Supreme Court of this State has jurisdiction in all cases of trust, whether arising by implication of law, or otherwise, the mortgagee may • maintain a bill in equity against the representative of the mortgager to enforce his claim, the estate of the mortgager being insolvent.</p> <p>The words in former statutes limiting equity jurisdiction to cases “ where the parties have not a plain and adequal^ remedy at law,” being omitted in the Revised Statutes, it seems, that the equity powers of the Court are to be determined under the general rules of equity in all cases in which the subject matter is, by statute, cognizable in equity.</p>

<p>Erections made by one occupying land under a bond for a deed are to be regarded as real estate, and are not removable by the occupant as personal property.</p> <p>If a building is excluded from a levy, on the supposition that it is personal property, when in fact it is a part of the realty, the levy is void.</p>

Case in Equity, heard on bill, answer and proofs. The question between the parties was one of fact, and questions of law arose only incidentally. The evidence is stated in the opinion.

<p>On statement of pacts.</p> <p>Writ op Entry.</p>

Exceptions from the ruling at JSTisi Prius of Barrows, J. Scire facias against the defendant, to show cause why a warrant of distress should not isgue against him, to collect the amount of a judgment rendered against him, in favor of William D. Lawrence and others, overseers of the poor of the city of Calais, on their complaint under the statute, to require him to contribute to the support of his father, who had become chargeable to the said city of Calais, as a pauper.

<p>Exceptions from tho ruling at Nisi Prius of Davis, J.</p> <p>This was an action of trespass.</p>

Exceptions from the ruling of Mat, J., and on motion to set aside the verdict as against law and the evidence. • This was an action on the case, against the late sheriff of the county of Washington, for the default of his deputy in not delivering, on demand, certain property attached on the original writ, that the same might be taken to satisfy the execution.

<p>If parties intend to make a payment of money to depend upon the happening of a future event, the money cannot be recovered, where the contingency does not occur.</p> <p>Otherwise, where the debt is to be absolute, and the happening of some contingent event is fixed on as tire term of payment; — as when a vessel shall have arrived at a specified port, and the vessel is lost on the voyage ; the law in such case will require payment to be made within a reasonable time after the loss of the vessel is ascertained.</p>

<p>On an appeal from the decree of a Judge of Probate, made on a petition under c. 71, § 17 of It. S., to empower an administrator to execute a deed to carry into effect a legal contract made by the deceased, it was held: —</p> <p>1. That an heir at law of the deceased was a party entitled to the right of appeal; —</p> <p>2. The statute refers only to legal contracts, in force at the death of the obligor, the performance of Tillich was by his death prevented; —</p> <p>3. The statute was not intended to oust the Supreme Court of its equitable jurisdiction, or to restrict its exercise; —</p> <p>4. If, after forfeiture of the bond, payments had been made, his rights arising therefrom can only be enforced by proceedings in equity; —</p> <p>5. The provisions of the statute cannot apply to verbal contracts, void by the statute of frauds.</p>

Bill in Equity, —to which the defendant filed a general demurrer.

Case stated by the parties. Assumpsit on an order of which the following is a copy : Castine, January 5, 1860. For value received, please pay to order of G. F. and C. W. Tilden forty dollars, and charge same against whatever amount may be due me for my share of fish caught on board schooner 'Morning Star,’ for the fishing season of 1860. Yours, &c., Frank R. Blake. To Messrs.

Case in the nature of waste. On facts agreed, as stated in the opinion. 1. The estate is liable to forfeiture. E. S.,c. 95, §§1,2. 2. Neglect by the- tenant to pay the taxes is waste. Greenl. Cruise, Tit. 3-, c. 1, §§ 27, 28, 41; 4 Kent’s Com., 74; McMillan v. Robbins, 5 Ham., 28 ; Varney v. Stevens, 22 Maine, 331. . 3. The collector’s certificate and treasurer’s returns are prima facie evidence of the correctness of the proceedings in the sale. E. S., c. 6, § 149. 1.

<p>On Exceptions, to the rulings of Dickerson, J.</p> <p>Case to recover damages for an injury to the female plaintiff, received in consequence of a defective highway.</p> <p>The defendants excepted to the admission of the plaintiffs as witnesses, and to an instruction to the jury, which is stated in the opinion.</p> <p>cited Moore v. Abbott, 32 Maine, 46; Shepherd v. Chelsea, 4 Allen, 113; Kidder v. Dun-stable, 7 Gray, 104; Rowell v. Lowell, 7 Gray, 100; Miller v. Mariners’ Church, 7 Maine, 51-55; 2. Parsons on Con., 454; Keith v. Pinkham, 43 Maine, 501; Tuttle v. Holyoke, 6 Gray, 447; Kastman v. Sanborn, 3 Allen, 594.</p> <p>There was also a motion to set aside the verdict, upon which no question of law arose.</p>

On agreed statement. Assumpsit to recover $125,22, expended in support of Horatio Whitten and family; and the only question was in regard to the settlement of .the paupers.

On agreed statement. Assumpsit to recover money expended in support of one Doyle, who, it was agreed, had no legal settlement in the State, but before and at the time of the division of the old. town of Frankfort was supported by it, at the town farm, which is in the plaintiff town. Before the division, Frankfort was under legal obligation to support this pauper, and no change was made in this respect by the Act of incorporation.

Exceptions from the ruling at Nisi Prius of Rice, J. This was a complaint for flowage under the statute.

<p>Exceptions from the ruling at Nisi Prius of Barrows, J.</p> <p>This was an action under see. 54 of c. 11 of R. S., to recover of the defendant money received by him as school agent, which the plaintiffs allege has not been expended. The writ also contains a count for money had and received. The case was brought into this Court by appeal, by defendant, from the judgment of the Police Court of Belfast against him for $10,68, damages and costs of suit.</p> <p>It was admitted that, in the year 1861, the defendant was acting school agent of the district, and received from the former agent §10,68, which belonged to the district; that he drew from the treasurer of the town the school money of the district, amounting to §136,38..</p> <p>It was also admitted that the records of the district do not show that the defendant was sworn, but it was not denied that he was the acting agent during that year. The plaintiffs, before commencing suit, demanded the said surtí of §10,68, which defendant refused to pay, claiming that he had an account for services and expenditures against the district.</p> <p>The defendant testified that services charged in his account, which he produced, for repair of school house and of time and travelling expenses in obtaining teachers, &c., amounting to $21,35, were correct and necessary. The account was not seasonably filed in set-off in this action, and it was not permitted to go to the jury, although the defendant claims that the services rendered should go in set-off to the account of plaintiffs.</p> <p>The instruction to the jury, to which the defendant excepted, will appear from the opinion.</p>

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

<p>By the terms of the constitution, no money can be drawn from the treasury, but by warrant from the Governor and Council, and in consequence of appropriations made by law.</p> <p>In the absence of an appropriation and warrant, the Court will not issue a mandamus to the treasurer to command the payment of money from the treasury, under any circumstances.</p> <p>A resolve of the Legislature, authorizing the Governor and Council, to fix the compensation of an agent of the State for prosecuting claims, is no appropriation.</p> <p>A copy of the vote of the Governor and Council fixing such compensation, attested by the secretary of state, is not the warrant contemplated by the constitution.</p> <p>As no action can be maintained against the State, the Court will not permit a claim to be enforced circuitously by mandamus against the treasurer.</p>

<p>When a portion of the subjects of a-civil government have rebelled, established another government, and resorted to arms to maintain it, and the rebellion is of such magnitude that the military and naval forces have been called out to suppress it, the fact that such rebels are robbers on the land, and pirates on the sea, does not preclude them from being regarded as belligerents.</p> <p>The seizure and destruction of a merchant vessel by such rebels, on the high seas, is "within the terms of a warranty in tho margin of a policy of insurance, by which the risk of “capture, seizure, or detention,” is excepted from the perils insured against.</p>

<p>On Eeport from Nisi Prius, Cutting, J., presiding.</p> <p>The facts were the same- in both cases, and are stated in the opinion, so far as they affect the questions of law decided.</p>

Beported from PTisi Prius, Cutting, J., presiding. These were all actions of dower, depending on the same facts. The defendants denied the marriage, and alleged a release of dower by the demandant. The facts bearing upon, the question of marriage are stated in- the opinion. The demandants claimed to avoid the release, because, at the time of its execution, she.was under the ago of twenty-one years.

<p>A reservation, in the conveyance of a saw-mill, of “all the slabs made at said mill,” is not valid, as against subsequent grantees.</p> <p>Evidence that “ there has always been a custom at a certain saw-mill and other mills in the neighborhood to leave the slabs as belonging to the mill, the owners of the logs never claiming them,” does not establish a legal right in the mill as real estate to the slabs sawed.</p>

On Exceptions, to the ruling of Cutting, J. Case to recover damages by reason of an alleged nuisance maintained by the defendant. It was proved that the defendant moved a blacksmith’s shop within twelve feet of the plaintiff’s hotel, and that, by reason of the black cinders, dust and ashes arising from the shop, the plaintiff was injured in his property and subjected to inconvenience and loss. .

Reported from Nisi Prius, Appleton, C. J., presiding. This was an action of debt on a bond to secure to the plaintiffs the faithful performance, on the part of A. O. Brooks, of his trust as agent of the plaintiffs, in collecting outstanding assessments. The bond sued on is signed by W. O. Brooks, John W. Perkins, and John Perkins, jr. Brooks did not appear to answer to the action.

On Exceptions, by defendants, to the ruling of Apple-___ TON, C. j. Assumpsit to recover for labor, &c., expended upon the' highways in Bangor. The case is stated in the opinion.

<p>An action cannot be maintained against an officer for attaching property exempt from attachment, but confused with property not exempt, unless the debtor sets apart or claims to set apart the property not liable to be attached.</p> <p>A debtor may waive his privilege, and consent that exempted property may be attached.</p> <p>The waiver may be made by acts or neglect to act. And when the debtor fails to set apart or claim to set apart exempted property, parcel of a larger quantity, before or at the time of the attachment, he waives his privilege.</p>

<p>On Report from Nisi Prius, Kent, J., presiding.</p>

<p>The owner of land has a legal right to fill it up so as to interrupt the flow of surface water over it, whether flowing from a highway, or any adjoining land.</p> <p>Nor does the fact, that the land filled up was a swale, make any difference in the owner’s rights, provided no natural watercourse is obstructed.</p> <p>If, in filling up his lot, the owner construct a drain for the flow of surface water from the highway, which had been accustomed to flow across his lot, and afterwards allow the drain to become obstructed, and it is repaired by the town, the latter can maintain no action to recover the expense of such repairs.</p> <p>Such a drain is not a “private drain,” within the meaning of § 12 of c. 16 of the Revised Statutes.</p>

<p>On Exceptions, by plaintiff, to the ruling of Cutting, J.</p> <p>Real Action. The case is stated in the opinion.</p>

On Report from Nisi Prius, Appleton, C. J., presiding. Case against defendants for neglect in keeping Water street in repair.

On Exceptions to the ruling of Appleton, C. J. Assumpsit for supplies furnished one Alexander Rowell.

<p>On facts agreed. Action of debt on bond of Gilmore, sheriff of Penobscot county, in the name of the State Treasurer, for the benefit of Nathaniel E. Tenney & als., who are alleged to have been injured by his, the said Gilmore’s, misfeazance in his said office. On the 7th July, 1859, said Tenney & als. sued out a writ against one Joshua Dennis, on which the said Gilmore was directed to attach the stock of goods of said Dennis to the amount of fourteen hundred dollars. Said Gilmore, on the 8th day of July aforesaid, did make the attachment of said Dennis’ goods, as directed, and made his. return thereof on said writ, in due form. Judgment was recovered in said action, on the 16th day of January, 1860, and execution issued and placed in the hands of said Gilmore on the 15th day of February, 1860. Said execution was directed to the sheriffs of our several counties, and not to a coroner, nor was said Gilmore a coroner.</p> <p>On the back of said execution, said Gilmore was directed to satisfy the same out of the goods attached on the original writ. Gilmore took the execution, but neglected to satisfy said execution and to return the same.</p> <p>On the 18th September, 1860, the said Tenney & als., sued him, the said Gilmore, as sheriff, for his alleged neglect aforesaid, and, on the 27th August, 1861, recovered judgment by default. Execution issued thereon September 11, 1861, and demand was made on Gilmore the same day for payment thereof, which was refused.</p> <p>This action is brought to recover the amount of said judgment against the defendants, who are principal and sureties on his, said Gilmore’s, official bond as sheriff. Said bond is dated January 1st, 1859, and was duly approved.</p> <p>In a book labelled "record of appointments of deputy sheriffs, vol. 5,” in the clerk’s office in said county, is a copy of the appointment of said Dennis, by said Gilmore, as his deputy, dated August 17, 1859, and of the certificate of the qualification of said Dennis; and it is the only and all the record contained in said office in reference to said Dennis as a deputy under said Gilmore, and bears no seal or certificate of the clerk of the courts of said county.</p> <p>Plaintiffs in interest had no knowledge that said Dennis was, or assumed to be, a deputy under said Gilmore at the time of the delivery of said execution to said Gilmore for satisfaction.</p> <p>Gilmore was sheriff from the time of the original attachment, till after the execution against said Dennis was delivered to him.</p> <p>Said Dennis acted as a deputy of said Gilmore from the date of his appointment till January 1, 1861. Neither the plaintiffs in interest nor their attorneys knew that fact on the said 15th day of February, 1860, nor for a long time thereafter.</p> <p>The certificate of appointment of said Dennis, as deputy, was lodged in the clerk’s office and recorded, and a certificate made thereon by the clerk, and was then taken away by said Dennis. It has been the practice in this county for deputies to take away their written appointments, after they have been recorded.</p> <p>Upon the foregoing, a default or nonsuit was to be entered with the following proviso: — The defendants claim to be able to show that, while the suit was pending against said Gilmore, for said alleged default, the plaintiff’s attorneys had him under arrest upon a writ and an execution in favor of the plaintiffs upon the same cause of action, on which judgment was recovered against said Dennis, and requested him, while under arrest, to agree to a default in the aforesaid suit, then pending; that said Gilmore at first refused, and gave as a reason, that he did not think his bondsmen should be made liable for this claim, but afterwards, in consideration of a release from arrest on said writ and execution, signed a paper to be defaulted, and the action was defaulted accordingly.</p> <p>. It was agreed that if, in any view of the case, this evidence would be admissible and material, the case should stand for trial.</p> <p>I. Gilmore having attached the goods, and having them in possession when he received the execution, and undertaking to serve it, with a full knowledge of the facts, of which the plaintiffs were ignorant, acted colore officii, and, for such acts, he is officially holden. Harris v. Hanson, 11 Maine, 244; Bond v. Warren, 7 Mass., 130; Knowlton v. Bartlett, 1 Pick., 274; People v. Schuyler, 4 Comstock, (N. Y.,) 174.</p> <p>It is no defence, that it was an illegal act for Gilmore to serve an execution on his deputy. The bond is for the very purpose of protection against the illegal acts of the sheriff; not against his legal acts.</p> <p>II. As Gilmore had the goods, no one else could serve the execution, especially as it was directed to the sheriff, and Dennis is not described in it as a deputy.</p> <p>III. Dennis was not legally appointed deputy. 1. The statute provides that the appointment of deputy shall not be valid until recorded, and the record does not show when it was recorded. B. S., c. 80, § 8. 2. The appointment must be lodged in the clerk’s office; that is, it must be deposited and retained there. No custom can control the law in this particular.</p> <p>IY. The judgment against Gilmore, being conclusive against him, till reversed or annulled, is also conclusive against all the defendants.</p>

On Report from Nisi Prius, Cutting, J., presiding. Writ- oe Entry. The demandant claimed under a sale of the equity of redemption on an execution issued ■ on a judgment afterwards reversed on error; and also under an assignment of the mortgage.

On statement oe eaots. This was an action to recover for mesne profits between May 11th, 1857, and September 10th, 1861. Erom the case, it appears that the plaintiff, on the said 11th day of May, 1857, instituted a suit to recover the premises, and claimed damages for rents and profits to the date of his writ. The tenant claimed betterments.

On Exceptions to the ruling of Cutting, J. Assumpsit against the defendant as indorser of a promissory note running to Samuel Pratt & Co. The facts are fully stated in the opinion.

<p>On Report from Nisi Prius, Appleton, C. J., presiding.</p> <p>Covenant. The facts are stated in the opinion.</p>

<p>On Report from JSTisi Prius, Cutting, J., presiding.</p> <p>Real Action. The case is stated in the opinion.</p>

<p>On Report from Nisi Prius, Cutting, J., presiding.</p> <p>Petition eor Certiorari. The grounds of the petition sufficiently appear in the opinion.</p>

Exceptions, by defendant, to tbe ruling at Nisi Prius of Appleton, C. J-. This was an action of trespass guare clausum. The land in controversy is the eastern half of lot No. 284, 12th range 0f lots in Etna. The lot was formerly owned by Samuel Abbott, who devised one half thereof to the plaintiff, and the other half to his wife and two sons, William and Leonard. Some time previous t.o date of his will, he .employed one Harvey to run a line through the lot.

Exceptions from the ruling of Appleton, J. The principal defendant corporation was defaulted in both actions, and the only question is whether the trustees are chargeable. The plaintiffs and principal defendants in the first action are corporations, incorporated by the Legisla-' ture of Massachusetts, having their place of business in Boston in that State. The trustees are a corporation under the laws of Maine, doing business in said county of Penobscot.

Action, assumpsit on account annexed. One portion of the account is for professional services as a physician, in attendance on defendant’s minor son.

Reported from Nisi Erius, Cutting, J., presiding. Writ oe Entry to recover possession of certain lots of A land in Williamsburg, which demandants claim have been forfeited for non-payment of taxes. Several questions which arose from the evidence as reported were argued. The facts bearing upon the points determined sufficiently appear from the opinion of the Court.

<p>The statute requires that a mortgage of personal property exceeding a specified value shall be recorded in the records of the town in which the mortgager residesif a case discloses nothing as to the residence of the mortgager, the Validity of the mortgage, though recorded, is not established.</p>

Exceptions from the ruling, at JSfisi Prius, of Kent, J. . This was an action of trespass for an assault on the female plaintiff. . v It was admitted that plaintiff enlisted as a volunteer into the service of the United States on April 80, 1861, and remained in it until his discharge on December 12th, 1862. ' It was admitted that defendant was an overseer of the poor of the town of Cornville; that he was authorized, in writing, by the other overseers of the poor of that…

<p>Exceptions from the ruling, at Nisi Prius, of Barrows, J.</p> <p>Assumpsit on account annexed. On the second day of the return term, the defendant filed a motion to dismiss the action, for reason appearing from inspection of the writ, namely, because the writ was wrongfully made to run against the body of the defendant.</p> <p>The plaintiff moved for leave to amend his writ by striking out the direction to arrest the defendant and substitute a direction to summon the defendant. The presiding Judge allowed the amendment, without imposing any terms, and overruled the motion of the defendant to dismiss the action; to which rulings the defendant excepted.</p> <p>The command in the writ, to arrest the defendant, was in direct contravefition of § 1, c. 113 of the Revised Statutes. The amendment should not have been allowed; certainly not without terms.</p> <p>Exceptions will lie if an amendment be allowed which the law does not authorize. Newell v. Hussey, 18 Maine, 249; Hobbs v. Stajples, 19 Maine, 219.</p> <p>An impression prevails that our statutes permitting amendments are much more liberal than formerly. But in relation to a case like the one at bar, they certainly are not so.</p> <p>Sec. 16, chap. '59, of the laws of 1821, § § 9 and 10, of c. 115, of the Revised Statutes of 1841, and § 10 of c. 82, of the Revised Statutes of 1857, are in effect the same, except as to the terms of amendment.</p> <p>The verbal changes do not vary the sense or force to enlarge the liberality of amendments. So any decision which the Courts of this State have made, of however early date, will, if applicable to like cases then, now be authority ia this case.</p> <p>The statute of 1821 authorizing amendments, in cases of "circumstantial errors or mistakes,” employs language quite as broad and comprehensive as that contained in any of the subsequent Acts.</p> <p>In fact, the later statutes are more cautiously guarded by the insertion of the words " which by lav: are amendable.” Roach v. Randall, 45 Maine, 438; Bailey v. Smith, 12 Maine, 196; Tibbets v. Shaw, 19 Maine, 204.</p> <p>Our present statutes provide for amendments in cases of want of form only and circumstantial errors or mistakes which by law are amendable.</p> <p>So, in order to learn ichat amendments are proper, we are still to be guided by the lights which the law furnishes. By the rules of law there are very many defects, besides those already enumerated, which are not amendable. 1 Hayw., 401; Troxler v. Gibson, lb., 465.</p> <p>A change from one form of action to another is not allowable. Littler v. Morgan, 11 .Foster, (N. H.,) 499; 1 Halst., 166; Bell v. Austin, 13 Pick., 91.</p> <p>Under the statutes authorizing amendments of civil process and pleadings, the Court will not permit an action of trover to be substituted for an action óf trespass. Wilcox v. Sherman, 2 R. I., 540.</p> <p>A very strong case to show that the rigor of the common law has not been abated by our statutes of amendment, beyond the literal expression thereof, is Sawyer v.. Goodwin, 34 Maine, 419.</p> <p>These cases all concur, that while certain amendments can be made, certain others cannot be. Hence it was considered by the Legislature, in enacting*our statutes of amendments, that the safe and sure criterion to determine what amendments should and what should not be made at all was the law as then established, the Legislature simply providing, in eases like the one now before the Court, that processes should not be quashed or overturned .in consequence of those defects which were legally amendable.</p> <p>In Matthews v. Blossom, 15 Maine, 400, it is said a writ of summons may be changed to a writ of attachment, but Shepley, J., in giving the opinion of the Court, plainly intimates that this amendment is allowable only for the reason that the part of the writ of attachment relating to the arrest of the body had been -abolished; and then the amendment, being a matter of substance, was allowed only on terms, which should have been required in the case now before the Court, had the amendment been allowed at all.</p> <p>But no terms were imposed by the presiding Judge, which was error, as this was clearly a matter of substance. Matthews v. Blossom, 15 Maine, 400; Garter v. Thompson, lb., 464; Ordway v. Wilbur, 16 Maine, 263.</p> <p>Terms are always to be imposed when the amendment is in matter of substance. State v. Folsom, 26 Maine, 212.</p> <p>But the amendment ordered in the present case is of a different character, and may be resisted on grounds not involved in the cases last cited.</p> <p>In these the plaintiffs had an election to commence by a writ of summons or attachment.</p> <p>As already stated, this writ was made in violation of a positive statute, and it is a statute upon a very important subject, affecting at some time, it may be, the personal liberty of every individual in the State capable of making a contract.</p> <p>Above all, it has been directly decided, by the Supreme Court of this State, that where a writ is made to run against the body of the defendant, when it is not warranted by law, it is abatable. OooJc v. Lothrop, 18 Maine, 260.</p>

Reported from Nisi JPrius, Walton, J., presiding, to be submitted to the full .Court, without entry upon the law docket, as. provided by § 18 of c. 77 of Revised Statutes. Assumpsit upon a negotiable order drawn by the selectmen of Camden, directed to the treasurer of that town, to pay the plaintiff $300, it being for furnishing substitute as per vote of town, July 1, 1863.” The order is dated Feb. 27, 1864.