Volume 52 — Maine Reports

<p>On Exceptions from Nisi Prius, Davis, J., presiding.</p> <p>The facts sufficiently appear in the opinion of the Court.</p>

On Exceptions from Nisi Prius, May, J., presiding. Trespass de bonis. The defendant, by leave of the Court, pleaded the general issue and a special plea in bar, alleging the property in question to have been the plaintiff’s husband’s property and not the plaintiff’s; and that the defendant, by virtue of an execution duly issued, seized and sold said property as the property of the plaintiff’s husband.

Petition for partition. The tract of‘land, sought to be partitioned, is bounded on the west, by a river, on the east, by the Coburn line,” so called, and through it, parallel with the river, runs the river road.” Jan. 28, 1858, Bi E. Bigelow, and Hiram Bigelow — husband of the petitioner, — each owued an undivided half of said tract of land, when B. E. Bigelow, by his quitclaim deed, conveyed his interest to the petitioner.

<p>To support an action of debt to recover land damages on an award of a committee under the statute concerning ways, it must appear that the report and award of the committee, in favor of the plaintiff, were seasonably accepted by the commissioners, and duly recorded, and that the proceedings on the original petition were closed and the record completed.</p>

<p>Where one, by will duly proved, devised land to his daughter and her husband during their natural life, then to his daughter’s heirs after her, the heirs’ right of possession will remain twenty years next after the death of the survivor of the joint tenants.</p> <p>Where one has title and enters into the possession of land, he is presumed to claim by his title, and not by wrong.</p> <p>Hence, where land was, by will duly proved in 1810, devised to the testate’s daughter S., and her husband W., during their natural life, then to her heirs after her; and, in Nov. 1S18, W. and S. executed a deed of warranty, duly recqrded, of the premises to C., who immediately thereupon went into possession ; and possession by himself and assigns, down to the present defendant, has been continued down to April, 1860, when this action was commenced : — Held, that the defendant and those under whom he claims cannot be regarded as having been in actual possession, &c., under c. 105, § 15, of the R. S.</p>

<p>■■ On Exceptions and Report from Nisi Prius, Tenney, C. J., presiding.</p> <p>Writ op entry.</p> <p>The plaintiffs claim as the heirs of Solomon Peabody. The defendant claims under one Israel Gregory.</p> <p>Stephen Peabody, called by the plaintiffs, testified: — " Solomon Peabody was my father. He died twenty-three years ago. Twenty years ago, mother and I went upon Peabody’s island to get Gregory off from what we thought was our own island. I saw Gregory; mother and I went to his house on the island; Mother told him father was dead. She presumed the island was in her custody. She presumed she was empowered to look it up for her and her children. She asked Gregory how he came by the possession of the island. He said he had his title by Mr. Hhner. Gregory told mother he had built a house on the island. She asked him by what authority. Gregory proposed to buy it of mother if she would sell. She refused; said she was old and did not want it for herself, but for the benefit of her children.</p> <p>" I had brothers and sisters at Jonesport, and knew that they authorized mother verbally to come and look it up. I knew that minister Boynton was sent by the heirs for the same purpose fifteen years ago. I helped pay him.”</p> <p>Hice Rowell, called by the plaintiffs, testified: — "I have known Israel Gregory forty years. Gregory once showed me the Ulmer agreement. I think the one produced is the one; bond for a deed of the island. Gregory told me he was acting for Peabody. Have heard him speak of the Peabody’s owning it a great many times. He never, in these conversations, claimed title. He asked me if I thought that bond was sufficient for him.</p> <p>" I remember a minister came to my house about fourteen or fifteen years ago, with a paper. I met Gregory and asked him if he had seen the minister; he said he had gone away. It was the same day that he asked me if I was going to buy the island. I told him I did not know but I should. He said if he knew who the right owner was he would buy it.”</p> <p>Alden Ulmer, called by the plantiffs, testified: — "I am the son of Philip Ulmer. Am fifty-two years old. Remember when father cut hay on Peabody’s Island, I was then eighteen or nineteen years old. Think father had care of the island two or three years. [Heard father say he never had the island in charge for himself. This he said while in possession. The conversation was, that Peabody owed him a small sum, and that he had the island in charge to make his pay out of, and whatever he made over that, he was to turn to Peabody.”] The testimony included within brackets was objected to by the tenant’s counsel, but admitted.</p> <p>The tenant’s counsel requested the Court to give the following instructions, among others, to the jury: —</p> <p>2.. That the facts as testified by Stephen Peabody respecting his going with his mother to the island and having there a conversation with Gregory, and all that was said or transpired at the time, cannot by law have the effect to interrupt the actual and exclusive possession of the tenant, so as to prevent him from having title after the period of twenty years’ possession commencing before that time.</p> <p>3. That the facts mentioned in the last request cannot by law operate to deprive the tenant of the benefit of the provisions of the 34th chap, of the statutes of 1853, relating to betterments, to wit, "An Act additional to c. 145 of the R. S.</p> <p>4. That if the tenant or Gregory, under whom he claims, had open, actual, adverse and exclusive possession of the premises, using them as his own, the going on to the island by Stephen Peabody and his mother, and all that was then ancl there said and done, as testified by said Peabody, or the declarations of Gregory respecting the ownership of the island, as testified by Rowell, would not in law have the effect to interrupt the continuity of such possession, so as to deprive the tenant of the benefit of such possession, if continued to twenty years and over.</p> <p>5. If the Judge declines to give the last requested instruction, in such case, he is requested to instruct the jury that such a possession would not be interrupted by the facts therein referred to, so far as to deprive the tenant of the benefit of the Act of 1853, c. 34, above mentioned.</p> <p>The pleadings; facts in relation to the title, the other material requested instructions, and the actual instructions given to the jury, all sufficiently appear in the opinion of the Court.</p> <p>The jury returned a verdict for the demandants; that the tenant holds the premises by virtue of a possession and improvements, and has had the same in actual possession for six years or more, before commencement of this action; and that the increased value of the demanded premises by reason of the buildings and impx-ovements made by the tenant and those under whom he claims, to be the sum of $8,137. They also found that the value of said premises, had no buildings been erected, or improvements made, or waste committed by the tenant or those under whom he claims, would be the sum of $3,336.</p> <p>The jury returned no other special findings, and wei’e xxot directed so to do; but, upon inquiry by the Court, the foreman stated that they also found that the tenant, and those under whom he claims, had not had the actual possession of the demanded premises more than twenty years prior to the commencement of this suit.</p> <p>To the refusals to instruct the jury as requested, and to the instructions, the tenant excepted; and filed a motion to set aside the verdict as against law, against evidence, and the weight of evidence.</p> <p>Peter Thacher & Brother, for the tenant, submitted an. elaborate argument upon all the points raised, the material points of which are as follows : —</p> <p>I. The declarations of Philip Ulmer, as testified to by Alelen Ulmer, were inadmissible.</p> <p>1. Because they were contradictory to the written agreement of said Philip with Gregory, introduced by demand-ants.</p> <p>2. Because the demandants having, by said agreement, shown said Philip in possession, at its date, — Jan. 10, 1829, — claiming it and using it' as his own, was estopped from putting in Philip’s declarations, that he had, in fact, no claim, and made none in his behalf.</p> <p>3. Because his declarations were in themselves inadmissible, the tenant not claiming under, or setting up any title under him.</p> <p>II. The 2d and 4th requested instructions ought to have been given. The instructions given relative to the points therein named and touching a legal entry and the effect thereof, were erroneous.</p> <p>HI. The 3d and 5th requested instructions concerning the true intent of the Act of 1853, c. 34, were erroneous. The "actual possession” in that Act is not a possession, which, if continued twenty years, gives title. It means actual occupation. If the tenant has had exclusive, unin-’ terrupted, adverse possession twenty years, he becomes the legal owner. By Act of 1853, it is intended, that, if he has had "actual possession” twenty years, his possession not being such as to give him title, rights shall belong to him additional to those he enjoyed or would have enjoyed under former statutes, and the owner shall not disturb him but upon terms more favorable to the tenant and less so to the demandant.</p> <p>The "possession” under Act of 1853 is not the same as that under § 23, c. 145, E. S., from the fact that twenty years’ adverse, uninterrupted possession gives title to such possessor, and, therefore, there would be no occasion to provide a more favorable rule, or any rule, for giving him betterments. It is absurd to give one betterments in his own land, or to compel the demandant to pay betterments and take the land when he makes out no title.</p> <p>There is no provision for the tenant’s abandoning land to demandant, when he proves title in himself, nor are terms or conditions named on which it can be done.' But it is expressly provided that the demandant may abandon to the tenant, showing clearly, that, though the tenant has proved that " he and those under whom he claims have had the actual possession for more than twenty years * * and the jury have found in conformity thereto,” the tenant has failed to establish his title, and the demandant prevails, because the tenant’s possession was not of a character, however long continued, to give title.</p> <p>IY. The verdict is against the evidence, because the jury have returned a verdict for the whole of the demanded premises, while demandants have proved title to but an aliquot part. ’William Peabody, one of the heirs, is not joined as a party, and has never conveyed his interest to the demand-ants. R. S., 1840, c. 145, § 13.</p> <p>William Peabody’s name nowhere appears in the deed except as a signer. His interest is not thereby conveyed. Oatlin v. Ware, 9 Mass., 218; Ag. Bank of Miss. v. Rice & al. 4 Howard’s (U. S.,) 241, aud cases there cited.</p> <p>Yerdict cannot be amended in this particular.</p> <p>Yerdict is against evidence as to title and as to the question of value.</p> <p>The jury found the value of improvements far below any witness, and the value of the premises without improvements far above any witness.</p> <p>A. P. Gould and J. O. Robinson, for demandants, submitted an extended and learned argument, on the following propositions: —</p> <p>I. Gregory, under whom tenant claims, went into possession as tenant of Solomon Peabody. He then held under agreement with Ulmer, Peabody’s agent, for a conveyance of the premises, upon certain named conditions.</p> <p>Gregory, having thus entered by consent of owner, a clear, positive, and continued disclaimer and disavowal of the title, and an assertion of an adverse right brought home to the owner, are indispensable before any foundation can be laid for the operation of the statute of limitations. Zellirs’ Lessee v. Eckert <& ais., 4 Howard’s S. C., 289 ; Ripley v. Yale, 18 Vt., 220 ; Jackson v. Bard, 4 Johns., 230 ; Berkans v. Vanmndt, 7 Barb. S. C., 92; 2 Smith’s Leading Cases, 496.</p> <p>II. The disseizin by Gregory had become purged. Means & al. v. Wells & al., 12 Met., 356 ; Vaughan v. Bacon, 15 Maine, 455; Shumioay v. Holbrook, 1 Pick., 114; Barnard v. Pope, 14 Mass., 438; Marcy v. Marcy, 6 Met., 371; Stearns on Real Actions, 4; Co. Litt., 238; Robinson v. Swett, 3 Maine, 316; Skinner’s Rep., 412; Jackson v. Homeland, 13 Johns., 229.</p> <p>HI. The declarations of Philip Ulmer were made while in possession as the agent of Peabody, and known to be thus by Gregory. Uncle v. Watson, 4 Taunt., 16; Little v. Libby, 2 Maine, 242; Ken. Purchase v. Laboree, 2 Maine, 275; Bartlett v. Belfast, 4 Mass., 707; Holt v. Walker, 26 Maine, 107; School His. in Winthrop v. Benson, 31 Maine, 384; 2 Term Rep., 53; 1 Esp. Ca., 458.</p> <p>IY. "Actual possession,” in Act of 1853, must be adverse. Language is identical with that of c. 145, R. S., § 23, which has received judicial construction. Treat v. Strickland, 23 Maine, 237 ; Knox v. Hook & al., 12 Mass., 329 ; Propr’s Ken. Pur. v. Kavanag/i, 1 Maine, 348; Butler v. Arnold, 31 Maine, 583; Mason v. Richards, 1 Pick., 142.</p> <p>Y. Yerdict should not be set aside because of the omission of William Peabody’s name in the body of the deed, because,</p> <p>1. Objection should have been taken at the trial.</p> <p>2. If William Peabody is still owner, there is no controversy between these parties about Ms interest, and it does not concern tbe tenant, he not claiming under him.</p> <p>3. It does not appear that William Peabody is still living.</p> <p>4. William signed, sealed and delivered the deed as a tenant in common with others. Bird v. Bird, 40 Maine, 398; Elliott v. Sleeper, 2 N. H., 525; Carr v. Williams, 10 Ohio, 305; Mead v. Billings, 10 Johns., 99.</p> <p>If no person’s name had been mentioned in the body of the deed, it would have been the conveyance of all the persons signing, as a deed poll.</p> <p>Yerdict may be diminished and thus save a new trial, when, as in this case, the Court have the means of determining the excess. Plummer v. Walleer, 24 Maine, 14; Lambert v. Craig, 12 Pick., 199; Hobart v. Hagget, 12 Maine, 67; Porter v. JRumney, 10 Mass., 64; Ciarle v. Lamb, 8 Pick., 415, and authorities there cited.</p>

On Exceptions from Nisi Prius, Bice, J., presiding. Assumpsit on two promissory notes, of which the following are copies:— Bockland, Oct. 24, 1853. $790. Thirty days after date, value received, .we promise to pay Joseph Hewett, or order, seven hundred ninety dollars, at the Lime Bock Bank. (Signed) D. C. Dinsmore. Indorsed. — Joseph Hewett. Jesse Ames.” Bockland, Nov. 12, 1853. §300.

Bill in equity. The case was heard on bill, answer and proof. The allegations in the bill and answer sufficiently appear in the opinion of the Court. This Court has no equity jurisdiction beyond that given by statute. It has jurisdiction between part owners of vessels, and may entertain a bill to account in proper cases, but this is not such a case.

<p>On Exceptions from Nisi Prius, Kent, J., presiding.</p> <p>The facts sufficiently appear in the opinion of the Court.</p>

<p>On Exceptions from JSTisi Prius, Davis, J., presiding.</p> <p>The facts sufficiently appear in the opinion of the Court.</p>

<p>On Report from Nisi Prius, Mat, J., presiding.</p> <p>The facts sufficiently appear in the opinion.</p>

<p>When one agrees to sell, and another to buy articles, at a specified price, and no credit is stipulated for, the delivery of the goods and the payment of the price are to be simultaneous and concurrent acts.</p> <p>As between the immediate parties to a promissory note given for the right of selling patent sewing machines, it is no defence that the payee agreed, in part consideration of the note, to furnish the maker machines as fast as wanted, and that the maker, having numerous and urgent calls for machines, repeatedly sent orders to the payee for them but received none, and the maker was thereby damaged, unless it be also proved that either the pay accompanied the orders, or that the payee was to furnish the machines on credit.</p>

On Exceptions to the rulings of Kice, J., at Nisi Prius. Complaint. ' .

<p>Bill in equity, heard on bill, answer and proof.</p> <p>The original bill makes Jeremiah M. Mason and others plaintiffs, and the York & Cumberland Railroad Company, John G-. Myers, and William Willis, James C. Churchill án athan L. Woodbury, defendants.</p> <p>¡ bill then alleges that, on the sixth day of February, 1851, said corporation made a mortgage of its property t, said Myers,'and sets forth said deed in words and figures, the material parts of which are stated in the opinion.</p> <p>The bill then alleges that said mortgage was duly recorded, and, that at different dates, between the first day of February and the first day of July, 1851, there were issued by said corporation, according to and to satisfy the terms of the contract existing between said corporation and said Myers, bearing date the fifth day of February, 1850, and as modified in writing on the sixth day of February, 1851, sundry bonds for the payment of the sums of money specified in said bonds, and for the interest on the same semi-annually, as specified in said bonds and coupons accompanying the same, and that said bonds and coupons were duly issued by said corporation, and that they were and continued to be secured by said mortgage and a part of the bonds therein specified.</p> <p>The bill then sets forth a description of the bonds held by each one of the plaintiffs.</p> <p>The bill then alleges that said amounts due for interest have been duly demanded at the office of said company, as said interests respectively became due, and payment refused by the company and by the treasurer of the same; that said corporation is wholly insolvent and irresponsible and destitute of means to pay the said interest and bonds as they mature, and that the only mode in which payment can be obtained of said bonds and interest is by a resort to the property, conveyed in said mortgage, to secure the same; and that said property is becoming daily deteriorated and destroyed and wasted by the acts and omissions of said defendants.</p> <p>The bill then alleges that the aforementioned bonds constitute the principal part of the debt outstanding, and secured by said mortgage, and that the complainants are owners of all the bonds and debts known with certainty by them to be existing and outstanding under said mortgage, and that they believe and allege that if any other bonds secured by said mortgage are in existence and outstanding and not paid or cancelled, they are of small amount and not in the hands of persons within this State, or subject to the process of this Court, and prays, if it should appear that any such other bonds are in existence, and in the possession of persons subject to the jurisdiction of this Court, they may have leave to join such other persons as parties plaintiff, or parties defendant to the bill, whenever the existence of such persons shall be made known, and whenever at any stage of the proceedings, it may appear to the Court necessary.</p> <p>The bill then alleges that said Myers, who is named as trustee and mortgagee in said mortgage, has neglected and refused, and still neglects and refuses to take any steps to protect the rights of the bondholders aforesaid, under said mortgage, and has refused and neglected and still refuses and neglects to call a meeting of the holders of said bonds, for the purpose of organization, as provided by the 51st chapter of the R. S. of the State, although requested so to do by said bondholders.</p> <p>The bill then alleges that, on the first day of January, 1857, said Myers made and executed a deed to James Hayward, William Willis, and James C. Churchill, whereby said Myers conveyed to said Hayward, Willis and Churchill, their survivors and successors, all the right, title and interest of him, the said Myers, in and to the aforesaid mortgage by said corporation to him, the said Myers, they, the said Hayward, Willis and Churchill, assuming the responsibilities of him, the said Myers, by virtue of said deed, to other persons, and refers to said deed for proof of the same, rvliich said complainants pray may be produced by the defendants, and that said deed, when produced, may bo taken as a part of said bill.</p> <p>The bill then alleges that said Hayward declined said trust, and refused to accept the same or to take delivery of said deed, and that, by operation of said deed and of law, the said Willis and Churchill became and claimed to be the successors of the said Myers in the said trust under said mortgage, and subject to the responsibilities and liabilities created by virtue thereof; or that if said trusts, powers and responsibilities under said mortgage did not pass to, and vest in said Willis and Churchill, by virtue of said deed and of their acceptance and action under the same, then the same, or such part of the same as did not pass to and vest in said Willis and Churchill, remains in said Myers.</p> <p>The bill then alleges that said Willis and Churchill associated with themselves said Woodbiuy, as a co-trustee, and that said Woodbury has claimed and still claims to act as a co-trustee with said Willis and Churchill, and that he has, jointly with said Willis and Churchill, entered into certain contracts and arrangements with reference to said road, and the construction of the same, and the extension of the same, and the issue of certain bonds, assumed and claimed to be secured by a subsequent mortgage on said railroad and its appurtenances.</p> <p>And alleges that said corporation and said trustees, or persons claiming to be trustees, and the said Myers, have entered into certain contracts and arrangements, the precise terms and conditions of which are not known to the complainants, but which said complainants pray may be fully .described and set forth by said defendants, in their answer, by virtue of which said Myers, under the authority and with the consent of said Willis, Churchill and Woodbury, and of said corporation, has been and still is in possession and control and use of said railroad and the property described in said mortgage, and claims to hold the same and receive the earnings and profits of the same, either directly under the authority of certain contracts made with said Myers by the other defendants or some of them, or under such contracts made by the other defendants, with said Myers and with one John Hosey, and with sundry other persons, whose names are unknown to the said complainants, but all whose rights and interests and claims, as they are informed and believe, have been assigned to and are vested in said Myers.</p> <p>The bill then alleges that the defendants, in violation of the rights of the complainants as holders of said bonds, and in violation and in fraud of the trusts, responsibilities, and liabilities of the said Myers under said mortgage, and of the said Willis, Churchill and Woodbury, who, if they have succeeded to any right or title under and by virtue of said conveyance from said Myers, have taken the same with full knowledge of and subject to all the trusts, responsibilities, and liabilities of said trusts and mortgage, and charged with said trust, have not applied the earnings and profits of the said road and of said mortgaged property to the payment of the interest due and unpaid- upon said bonds and under said mortgage, but have suffered and are now suffering the same to be used and expended by said Myers, for his private purposes, and to be used to pay the coupons issued in connection with certain bonds of said corporation, purporting to be issued by a mortgage of said property, subject and subsequent to the mortgage given to secure the aforesaid bonds of said complainants.</p> <p>And then the bill alleges that the said Myers, and Willis, and Churchill and Woodbury, have continued to. act and still do act in total disregard of the rights and interests of the holders of the bonds secured by said first mortgage, and of the responsibilities and liabilities imposed upon the trustees under the same, and do not and will not take any steps to enforce said mortgage or to foreclose the same, and that, notwithstanding the interest due upon the aforesaid bonds held by the complainants has remained linpaid for so long a time, they have been and are applying the earnings of said road to the discharge of other liabilities of said corporation not secured by said mortgage, in violation of the rights of said complainants, and have been and are suffering said railroad and its furniture and equipments to fall into decay and become greatly depreciated and deteriorated in value, so that, by reason of the acts, refusals, omissions and neglects of the said defendants, the complainants are losing their security in part, and are in danger of losing the whole, notwithstanding the said defendants have received and are receiving large sums from the receipts of said road, which earnings and expenditures the complainants pray that the said defendants may severally set forth, so far as to render a full, exact, and true account of all the same since the time of the execution of the deed from said Myers to said Willis, Hayward and Churchill.</p> <p>The bill then alleges, in the usual form, that said actings, doings and pretences are contrary to equity and good conscience, that they are injurious and oppressive, and that the complainants are remediless according to the strict rules of the common law, and can only have relief in a court of equity.</p> <p>The bill then prays that the defendants, upon their several and corporal oaths, may make answer to said bill, in the usual form of said bills, and that said defendants may come to a fair and just account of all the earnings and receipts from said property thus held in mortgage and trust, since the date of said conveyance to said Willis and others, and that a receiver may be appointed by the Court to receive and take charge of the said mortgaged property, and of the earnings and income of the same, and to apply the net earnings and income of the same to the payment of so much of said mortgage debt, and of said bonds and interest, as is now due or may hereafter be due and unpaid, and that a trustee may be appointed by the Court in place of the trustee named in said mortgage, and in place of the other defendants, who claim to have succeeded to the rights of said trustee, and that the other defendants may be decreed to convey their interests in said mortgaged property to said trustee, or to the receiver so appointed by said Court, so far as may be necessary for the effectual carrying out of the trusts, and realization of the securities of said mortgage, and that the said trustee may be authorized by the Court with a power to sell and dispose of the said mortgaged property and with all the powers of sale and disposition, if any, embraced in said mortgage; and that the said defendants, their servants and agents, and all other persons, may be enjoined from paying over or disposing of any of said mortgaged property, or the earnings or income or receipts of the same, except under the order of the Court, or to the trustee or receiver appointed by the Court; and for such other and further relief as the nature of the case may require.</p> <p>Then follows a prayer for a writ of injunction from the Court accordingly; and for the ordinary process by subpoena.</p> <p>To the bill was appended the jurat of John W. Lane, one of the complainants, in the usual form.</p> <p>The original bill was entered at the January term, 1860, when the defendant Myers was defaulted. The bill was ordered to be taken pro-confesso as to said Myers on the 36th day of the term. The answer of the York & Cumberland Railroad Company and of said Willis, Churchill and Wood-bury, was filed on the 35th day of said term.</p> <p>Joseph C. Noyes was appointed receiver, January term, 1860.</p> <p>At the October term, 1860, Jabez C. Woodman appeared for said Mason and MacDonald. On the same day, Smith, one of the complainants, claimed to discontinue, and his counsel withdrew their appearance.</p> <p>At the January term, 1861, on the 21st day, the general replication was filed.</p> <p>On the 27th day of May, Shepley & Dana, in behalf of all the complainants except said Mason and MacDonald, filed their motion in which they alleged that said Mason and MacDonald had disposed of their bonds and were not interested in the suit, and praying that said bill might be dismissed without prejudice.</p> <p>On the 5th day of June, 1861, John B. Carroll filed his petition for leave to file a supplemental bill, and subsequently had leave to file his supplemental bill, upon giving bond to the other plaintiffs, to be appi’oved by some Justice of the Court, to prosecute the sxxit at his own expense, and indemnify and save them harmless from any axxd all liabilities for costs or expenses accruing afterwards.</p> <p>On the 13th day of June, 1861, said Carroll filed bis bond, and with the permission of the Court his supplemental bill. On the same day, Edward H. Daveis, Charles Q. Clapp, and Levi Morrell, appeared and took notice of said bill and acknowledged service, by Edward H. Daveis and George Evans, their solicitors. The original defendants also appeared and acknowledged service, by George Evans, their solicitor, on the same day.</p> <p>The supplementary bill and bill of revivor by John B. Carroll recites the original bill, its allegations, charges and prayers. It then alleges that the writ of subpoena was issued on the 22d day of December, 1859 ; that it was duly served and returned into the Clerk’s office, January 4th, 1860 ; that, at the January term, 1860, the joint and several answer of said corporation and of James C. Churchill, Nathan L. Woodbury and William Willis to said bill was made and filed on the 35th day of the term, and that, on the next day, the default of said Myers was recorded and the bill ordered to be taken jpro-confesso, as to said Myers; that Joseph C. Noyes was appointed a receiver in said case, according to the prayer of said bill; that the decree appointing said Noyes was filed on the sixth of March; that a commission was issued to the receiver on the 13th of March, 1860 ; that all the property described in said mortgage now in existence, and the receipts and income of the same, save the necessary disbursements incident to the same, have been in the hands of said receiver since his commission issued, subject to the order of this Court.</p> <p>It then alleges that, since the filing of the original bill, the said Mason and MacDonald, for a valuable consideration, have sold and transferred the six bonds, numbered two, three, four, five, six and seven, with the coupons pertaining thereto, and that, since the filing of said bill, the said Carroll, for a valuable consideration, has become the purchaser of said six bonds with the coupons pertaining thereto, and that ho is now the holder, owner, and assignee of said six bonds and coupons.</p> <p>The complainant then claims that, by the párchase of said bonds and coupons, he is entitled to have said bill of complaint continued, and to prosecute the same against the defendants in his own name, and to have all the benefits of said bill in the same manner and to the same extent as the said Mason and MacDonald might have had, if they had not sold and transferred said six bonds and the coupons pertaining thereto.</p> <p>The complainant then alleges that he is informed and believes the bonds that were issued according to and to satisfy the terms of the contract, existing between said coi-poration and said Myers, bearing date the fifth day of August, 1850, ■and as modified in writing on the sixth day of February, 1851, were exceedingly numerous, being to the number of one hundred and sixty-six, and all of them secured by said mortgage to said Myers.</p> <p>The bill then alleges that all of said bonds were payable to the bearer thereof, negotiable in form, and passing from hand to hand by delivery; that he has no knowledge who are the owners and holders of any of said bonds, except the six aforesaid, which belong to him; that he does not know how many of said bonds are outstanding, believes they are exceedingly numerous, and that he has no means of knowledge who were the owners «and holders of said bonds or any of them, at the time the original bill was commenced, except as he sees the matter stated in said bill.</p> <p>The complainant then alleges, it would be impracticable for him to make all the holders and owners of said bonds and coupons, parties to this bill by name, because said holders and owners are unknown, because of their numerousness, and because the bonds -are negotiable in form.</p> <p>ITe then prays that the original bill may be so far amended that he may be allowed, either in company with the other complainants, or so many of them as may continue to prosecute the bill, or otherwise in his own name, to maintain this bill, in behalf of himself or themselves, and also in behalf of all other persons that may be holders and owners of said bonds and coupons, or any of them, who shall come in and prove their claims, become parties and contribute to the expense of this suit, at any time before the final decree.</p> <p>The complainant then avers that he. has been informed, and verily believes, that said corporation, by their deed of mortgage and trust, on the first day of November, 1851, conveyed to one Toppan Robie, one John Anderson and one Nathan Clifford, all the property of said corporation, including the franchise thereof, that was embraced in the aforesaid deed of said corporation to said Myers, and offers to produce said deed; and further represents that, agreeably to the provisions of said deed, Charles Q. Clapp, Edward H. Daveis and Levi Morrell, have been duly and legally appointed successors to said Robie, Anderson and Clifford in said trust, and claim to hold said franchise and other property in accordance with the provisions of said deed, and claim to have the right to redeem the same from the mortgage made by said company to said Myers, and to have other and important interests in said property, liable to be affected by any decree which this Court may make in this case, and that they have commenced a bill in equity, now pending in this Court, against said corporation and others, to which the complainant refers, as setting forth more fully the ground of their claim.</p> <p>The complainant then prays the process of the Court against said Clapp, Daveis and Morrell, and that they may be required to appear and answer thereto as they may be advised.</p> <p>He then prays that the original defendants may be required to answer to the matter alleged by way of supplement and amendment, and that the complainant may have the same benefits of said bill and proceedings against the defendants as the said Mason and MacDonald were entitled to have under the original bill and before they assigned their, bonds, with the addition of the supplementary matter and amendments aforesaid.</p> <p>The answer admits the contract with Myers, the mortgage to him, and the issuing of bonds (known as the "Emery bonds”) to the amount of $95,500, and no more; it denies that some of the bonds (known as the "Herrick bonds”) held by some of the plaintiffs, were ever authorized by the corporation, or legally issued; it alleges that the plaintiffs became the owners of their bonds long after they were dishonored and subject to certain defences; that Myers had recovered a judgment for breach of the contract amounting to some $165,000; that Myers had taken possession of the mortgaged property for breach of the condition and had sold it, by virtue of a power of sale contained in the mortgage, to one Amos Finch; [that other proceedings took place which do not become«naterial in the view taken of the case by the Court;] that the judgment in favor of Myers had been assigned to said Willis, Churchill and Woodbury, as well as the interest of Myers in the mortgage; that, on the first day of January, 1857, the company conveyed to them in mortgage and in trust all its property; it denies that the defendants are in possession or are liable to account to the plaintiffs ; it admits the non-payment of interest as alleged in the bill, and substantially all the new allegations in the supplemental bill; and it alleges other matters not material in the view of the case taken by the Court.</p> <p>So much of the documentary evidence as is material is given in the opinion.</p> <p>It was admitted, among other things : —</p> <p>1. That the documents and papers of which printed copies are filed by the respondents, as proofs and exhibits, were duly signed and executed by the parties thereto, respectively.</p> <p>2. That the deeds and contracts so filed, purporting to be the deeds and contracts of said railroad company, were executed by the proper officers of said company, duly authorized thereto by votes of the directors of said company, at meetings duly held for that purpose.</p> <p>3. That said Myers recovered judgment against said com-puny in a suit commenced by him as set forth in the answer of said-respondents.</p> <p>4. That said Myers advertised and sold at public auction, as set forth in his deed to Finch, all his right, interest and property in the premises, described in the deed of mortgage to him.</p> <p>submitted an elaborate argument in support of the following propositions : —</p> <p>I. The deed to Myers is a deed of mortgage and of trust. He held the estate for himself and. in trust for the other bondholders.</p> <p>II. All the necessary parties are before the Court. As the bondholders are numerous, and continually changing, and many of them are unknown, Carroll may maintain the suit in his own name for the benefit of them all.</p> <p>III. Myers had no authority by virtue of the mortgage to sell the mortgaged property.</p> <p>IV. By the conveyance of Myers to Finch, and of Finch to the defendants, and. of Myers to the defendants, they succeeded to Myers’lights and duties, and became the holders of the estate in trust.</p> <p>V. The contract with Myers was not secured by the mortgage.</p> <p>VI. If it was secured by the mortgage, Myers lost his lien by the sale to Finch.</p> <p>VII. The Court will send the case to a master in chancery to ascertain what bonds were legally issued and are secured by the mortgage.</p> <p>The case comes before the Court, upon the original bill of Mason and others — the supplemental bill of Carroll— and the answers thereto — and upon exhibits, documentary proofs, agreements and admissions of Mason and MacDonald, original plaintiffs, and of Carroll.</p> <p>All parties in interest, it is believed, are before tlje Court.</p> <p>The plaintiffs claim to be holders of certain bonds issued by the Y. & C. R. R. Co., secured by a deed of mortgage to Myers ■which is set out at length.</p> <p>The answers admit the validity of the deed, and admit the issuing of certain bonds secured by it, which bonds so admitted are accurately described. They deny that any other bonds than those so described — those signed by Emery as treasurer — are the bonds of the company or covered by the mortgage. They do not admit that the plaintiffs are holders of any of the bonds so admitted to be secured — and call for proof. The answer is responsive to the bill, in these respects, and renders proof of the allegations incumbent on plaintiffs.</p> <p>Mason and MacDonald, and their successor Carroll, have filed the bonds held by them as exhibits, and they are among those admitted to be the bonds of the company and secured by the mortgage. The bill alleges, and the answers admit that the interest due upon these bonds has not been paid since February 10, 1856, and it is also admitted* that the holders of these particular bonds have been in no way privy or assenting to any proceedings heretofore had and set forth in the answer, affecting in any way the rights of the holders.</p> <p>So far, therefore, as the bonds now held by Carroll are concerned, it is not perceived that the denials of the answers in this respect are not overcome — and that Carroll is not entitled to such equitable interposition as the case made authorizes, and as is within the power of the Court to grant.</p> <p>The bill alleges and the answers admit a conveyance from Myers of the mortgaged property, dated January 1, 1857, to Hayward and others, trustees, and subsequent conveyance of the same to Woodbury and Willis, and certain agreements of the trustees with Wood and Myers and one Hosie, all of which it prays may be produced and made part of the bill. They have been produced and are among the exhibits, and are to be taken as a part of plaintiffs’ bill.</p> <p>The answer sets forth other proceedings and conveyances from Myers to Finch, and from Fiqch to Churchill and others, copies of which are filed among the proofs, and are admitted to have been duly executed and authorized by votes of the company or the directors.</p> <p>The bill alleges and the answers admit that the company is insolvent and unable to pay its debts, for which purpose resort must be had to the mortgaged property.</p> <p>The answers allege a conveyance in trust by the railroad company to Hayward and others,'January 1, 1857, and, by subsequent conveyances, the transmission of this trust-estate to Churchill, Woodbury and Willis, of which due proof is made by the production of the deeds- and admissions in the case.</p> <p>No proof has been offered that any other bonds, admitted to be the bonds of the company, are held by any of the plaintiffs, nor has any proof been offered that any bonds alleged in the bill to bS held by the plaintiffs, other than those admitted, are bonds of the company or obligatory upon them, or covered by the mortgage.</p> <p>In. all ¿these respects, therefore, the answer being responsive, must stand.</p> <p>The decree must be against the validity of such other bonds for want of proof, and against the assei'ted lien or trust in their behalf.</p> <p>The questions arising on this state of the case, are : —</p> <p>1. The construction of the deed to Myers.</p> <p>Does it give priority to the bonds which were issued in pursuance of it, over the contract with Myers also secured by it — dr, if the mortgaged property be insufficient to pay the whole of both descriptions of indebtedness, is it to be appropriated pro rata to the payment of bonds and contract?</p> <p>We maintain the latter proposition. It results from the language of the deed. Both are secured and no priority given.</p> <p>Churchill and others, trustees, are assignees of the judgment obtained by Myers against the company, for violation of his contract, and are therefore entitled to stand on the. same footing of equality as those bondholders who may sustain their lien.</p> <p>2. The effect of the sale at public auction by Myers to Finch, July 29, 1856, upon the bonds then held by persons privy to and assenting to such sale.</p> <p>By examination and comparison of the documents, it will appear that the then holders of all the bonds described in the original bill of Mason and others were so privy and assenting, except those now held by Carroll, and possibly that held by Goddard, one of the plaintiffs, being $500. only.</p> <p>The effect of this assent and agreement to extend credit was, it is contended, to discharge the lien created by the deed, if any ever was created in their favor. The consent and agreement was good and valid; the proviso, that it should not impair the lien, was repugnant and void. The doing of that which they consented should be done, to wit, the sale of the property, necessarily effected what they desired should not be done, viz., the displacement of their lien. If not so, it might opei’ate a great fraud on purchasers.</p> <p>The bill is framed to enforce "an equitable lien growing out of a constructive trust” under the deed to Myers. It is not brought to enforce any rights secured to the plaintiffs under the deed to Finch, or under Finch’s mortgage to Myers.</p> <p>The holders of the bonds, near $400,000 in amount, issued under the deed to Robie and others, a large portion of which are held by Churchill and others, trustees, claim priority of right to those who claim under the Finch deeds — and hence the necessity of determining the effect of the sale by Myers, upon the bonds assenting thereto. If their assent to that sale did displace their lien, the Robie bonds would have priority to those issued to Myers, and admitted to be valid and covered by the mortgage, — and would displace the bonds alleged to be held by Foster, amounting to $5,000, and the bond alleged to be held by Dyer, $1,000, leaving only the bonds now held by Carroll, ($6,000,) and that alleged to be held by Goddard, if found valid upon due j>resentment of it, to be first provided for. If this should be the result reached, viz.: that the privity of the holders of the bonds represented in the bill as belonging to Foster and Dyer, plaintiffs, to the sale by Myers, displaced their lien, then the Robie bonds would have priority to all except to those now held by Carroll and to that held by Goddard, if of the class, and to the Myers judgment, if that be held to have priority, as we contend it has.</p> <p>The bonds have not yet expired; and to meet the arrears of interest on the bonds having priority, and to be first provided for, a sale of the road would probably not be necessary.</p> <p>All the other bonds alleged in the bill to be held by other plaintiffs, which are not admitted by respondents tó be obligatory on the company, would also be excluded from priority, even if they were proved to be valid, as they were all held by persons assenting to the proceedings of Myers in the sale.</p> <p>Having determined these questions of priorities, and the rights of the several classes having liens, it can then be ascertained in what mode their several claims can be best protected or satisfied. It is believed that no decree of sale will be necessary or proper, until these questions are determined, and then only, upon condition that, within a reasonable time fixed by the Court, the liens of the plaintiffs are not extinguished.</p> <p>[His argument upon his first and third exceptions is omitted, as the Court held that these points were not open to him in this case.]</p> <p>In support of Ms second exception, he says: —</p> <p>The notes and judgment already paid by Smith, each being parts of the construction cost of the road, went to the reduction of the amount payable to Myers in bonds. By the terms of the contract and mortgage, payments were to be made in cash and bonds, and all the construction contract unpaid was to be -secured by mortgage. The notes in question were given by the company in lieu of cash payments, and were never paid by the company. Hence, these amounts of the construction contract were never paid, and the equity of the mortgage security follows these notes for payment, on the same basis as it follows the Herrick bonds, whether specifically named or not in the mortgage, and constitutes a part of the construction debt of the contract, for which the mortgage was made expressly security. The ruling of the Court on the Herrick bonds in principle manifestly covers these unpaid notes, indorsed by the directors.</p>

Upon pacts agreed. Assumpsit to recover • certain moneys received, by the defendant, as earnings of the York & Cumberland Railroad, while he was superintendent thereof. The facts are sufficiently stated in the opinion.

On exceptions, to the ruling of Rice, J., and on motion to set aside the verdict, as being against evidence.

<p>Where a mortgagee assigns the mortgage and notes secured thereby, with a covenant that he “is lawfully seized in fee of said notes and has good right to sell the same,” he is estopped from denying that they were not all due according to their tenor.</p> <p>In such a case, a claim of the mortgagee upon an insurance company by an order from the mortgager, for money due in consequence of the destruction of the building upon the mortgaged property, and to be indorsed upon the mortgage notes, passes with the assignment of the mortgage.</p> <p>If the mortgager obtains an assignment of the claim upon the insurance company, from such assignee, he is entitled to collect the same of the company, and payment by them to the mortgagee is no defence to an action therefor by the mortgager.</p>

<p>The taking possession of the mortgaged premises in the presence of two witnesses, for the purpose of foreclosure, under our statutes, does not necessarily impose upon the mortgagee the obligation to account for rents and profits.</p> <p>If the mortgagee take such possession, and he, and those claiming under the mortgager, allow the latter to remain in possession and take the rents and profits, the mortgagee should not he held to account for them.</p> <p>A master in chancery is not bound to report the evidence, but only the facts proved. He may examine the parties as to the receipt of rents and profits, or the possession of the estate, although one of them may be an administrator.</p>

<p>A quitclaim deed containing the following clause, written after the description and before the habendum, viz.: — “but the said” grantee “ is not to have or take possession till after my decease; and I do reserve full power and control over said farm during my natural life,” is valid, notwithstanding it purports to convey a freehold estate to commence dm futuro.</p> <p>Where one of the stipulations in the bond in suit was, that the obligor “ shall manage the farm in a prudent and husband-like mannerand the plaintiff contended that it was waste in law for the defendant obligor to cut and sell growing trees for his own use;” — Held, it was correct for the presiding Judge to instruct the jury, that the cutting and selling trees is not necessarily waste in this country, in every case where, by the common law of England, it would be so held; that regard is to be had to the condition of the land, and whether good husbandry, as understood and practiced here, requires that the land should be cleared, or the trees felled and marketed; that, to what extent wood and timber may be cut without waste, is a question of fact for the jury; that, by the terms of the agreement recited in the condition of the bond, the defendant was to manage in a prudent and husíiand-like manner; and, if the cutting and selling of the timber were a violation of this stipulation, it would be a breach of the bond; otherwise, not. Where a verdict is not clea/rhj against the weight of evidence, it will not be set aside as being against the weight of evidence.</p>

On Report, from Nisi JPrius, Appleton, C. J., presiding.. * Trespass quare claúsúm. Writ datpd Deo 19, 1859. To prove the plaintiff’s title, a deed of warranty from George Hobbs to Japhet Storer, (one of the plaintiffs,) dated April 8, 1850, duly recorded, and a similar deed from Japhet Storer to John W. Storer, (the other plaintiff;) dated Nov. fi, 1858, and recorded after this action was com- _ menced, viz.: Sept. 28, 1860.

<p>The decretal order is the rule for the guidance of a master in chancery in this State.</p> <p>Unless the order otherwise requires, it is not the duty of a master to report the evidence upon which his determination is founded.</p> <p>When the order does not require him to report the evidence, no testimony outside of the report touching the points determined in the report is ad- , missible to prove any facts set forth in motions to set aside, or in exceptions to the acceptance of the report.</p> <p>By-c. 150, § 1, of the Public Laws of 1862, no judgment of any Court shall be entered against any party unless such party has been legally served with process, or has appeared and answered thereto personally or by attorney duly a/iifhorized.'</p> <p>Prior to the time when this law took effect, March 19, 1862, the general appearance of an attorney for parties defendant, rendered an order of notice and service on parties residing out of the State unnecessary.</p> <p>Where an attorney entered his general appearance, May term, 1858, for several-defendants, some of whom were not residents in this State, and, at the October term following, on written motion, he was permitted to enter upon the docket that he limited his appearance so as not to embrace the non-residents, alleging that he was never authorized to appear for them, but such entry not to be construed as an admission of the fact that Ms general appearance was unauthorized; and, at the May term, 1862, he had leave to withdraw and did withdraw; — Held, that testimony offered at the time of withdrawal for the purpose of showing his unauthorized appearance was inadmissible.</p> <p>By c. 155, § 3, of the Public Laws of 1862, no proceedings shall hereafter be had before any master in chancery, unless appointed under the provisions of tMs Act¡ and the case thereafter committed to Mm.</p> <p>By B. S., c. 1, § 3, the Act of 1862, c. 155, became effective in thirty days after the recess of the Legislature passing it. — In computing the time, the day on wMch the Legislature adjourned is to be excluded.</p> <p>Where the acceptance of the report of a master, duly appointed prior to said Act’s becoming effective, is objected to after, for the reason that the master was not appointed in accordance with the Act; and the report itself shows that the hearing before the master was concluded before the Act took effect; Held, that the Act did not affect the report.</p> <p>This Court does not ordinarily take notice of the Besolves of the Legislature, unless produced in evidence.</p> <p>Where the complainants, having constructed the hull and spars of a vessel, sold eleven-sixteenths to the respondents, embracing therein one-fourth to H. B.; and, on Nov. 15, 1854, having completed all of her requisite fittings, caused her to be enrolled; and, on the day after the enrollment, H. B. gave to the complainants a mortgage bill of sale, with a covenant of warranty, of Ms one-fourth, together with one-fourth of the masts, bowsprit, sails, anchors, and all the other necessaries thereunto belonging, to secure the payment of two notes of $650 each, payable in three and six months respectively; and, shortly afterwards, while the vessel was on her first voyage, under II. B. as master, he died, insolvent; and the vessel made several voyages, when she was sold by an agent; and, on May 20, 1856, the complainants took possession of the one-fourth covered by their mortgage, and perfected their title on July 20, following; — Held,—</p> <p>I. That H. B.’s one-fourth of the hull and spars should contribute in that proportion to the payment of the “top bills,” and that Ms insolvency conferred no responsibility on the other part owners to make up and pay over to the venders such defalcation; and,</p> <p>2. That if the master’s report charge the respondents with H. B.’s debt for the top bills, and, at the same time, allow the complainants for one-fourth of the proceeds derived from the sale of the vessel including the same articles purchased and charged as top bills, it will be recommitted for inequity.</p>

On facts agreed. George D. Hillman and A. H. Phinney, two of the plaintiffs, were formerly partners, doing business in the stove business.in the name of George D. Phinney & Co. They were also partners in the millinery business, using the firm name of Asa H. Phinney & Co. On Oct. 19, 1860, Asa II.

On Beport from. Nisi Pmís,.BicE, J., presiding. Appeal from a decree of the Judge of Probate for the county of Kennebec, admitting to probate a paper claimed to be a copy of the last will, and testament of Nathaniel Gilman.

On Exceptions from Nisi Prius, Cutting, J., presiding. Trespass. The action was brought under R. S., c. 30, § 1.

<p>On Report from Nisi Prius, Appleton, C. J., presiding.</p> <p>Assumpsit on a policy of insurance against fire.</p> <p>The facts sufficiently appear in the opinion of the Court.</p>

<p>On Report from Nisi Prius, May, J., presiding.</p> <p>Writ oe Entry.</p> <p>The facts sufficiently appear in the opinion of the Court.</p>

<p>On Eeport, from Nisi Prius, Fox, J. presiding.</p> <p>Assumpsit on a policy of insurance.</p> <p>The facts appear in the opinion of the Court.</p> <p>The defendants may avail themselves of any defence in law or fact, which the plaintiff’s testimony discloses, whether embraced in the specifications or not..</p> <p>The master, up to the time of the loss, sailed the vessel on shares, and thus became owner pro hac vice. Being owner pro hcic vice, he could not commit barratry. 1 Phil, on Ins., p. 630, sub sect. 1082; Taggard & al. v. Loring, 16 Mass., 336.</p> <p>Defendants did not contract to insure against barratry of the master, yet, by operation of law, they are made responsible for his very acts, which would have been barratry, could he have committed that offence.</p> <p>The policy was void on account of the wilful concealment by the plaintiff that the master was owner pro hac vice. This fact was material; because, when a vessel is sailed by a master on shares, and he is thereby owner pro hac vice, the risk is greater than when he sails in capacity of master only. In that capacity, he has the strongest inducements possible to save the ship, and thereby save his employment and wages. Otherwise, he is interested in one-half of the freight and in the stores. He may insure his share in both, and then lacks stimulus to exertion for her preservation.</p> <p>Insurers might insure when master sails as master, when they would not if he sailed as owner pro hac vice.</p> <p>Every fact is material which there is a just reason to believe might determine the underwriters to insure, or influence their estimate of the premium. 1 Phil, on Ins., 315, et seg. Ib., 288, 380.</p> <p>As to what assured is " bound to communicate.” 1 Phil, on Ins., sub sect. 571; 1 Arnold on Ins., original p. 487.</p> <p>What constitutes concealment in insurance. 1 Phil, on Ins., p. 287, sub sect. 531.</p> <p>By the terms of the policy, it was " to become void in case of its being assigned, transferred or pledged without the previous consent in writing of the owners.”</p> <p>The delivery to Angier was a pledge of the policy, without the written consent of the insurers.</p> <p>Payment of the debt, subsequently, to secure which the policy was pledged, did not restore vitality to it; the simple act of pledging extinguished the vital spark.</p> <p>The written order did not constitute a pledge. It was the delivery as security of the debt.</p> <p>To sustain a pledge of bills, notes, obligations, &c., the only proof required, is to establish the fact of delivery to the pledgee, possession by him, and a consideration therefor;</p> <p>. no writing is necessary. To remove all embarrassment in the way of collecting payment in case of loss, plaintiff accompanied the pledge with an order on the company to pay to the person who is proved to be the pledgee.</p> <p>It is no less a pledge because the plaintiff might have an interest in the policy for the surplus remaining after paying the debt to Angier.</p> <p>Counsel assigned numerous reasons why such a stipulation should be embraced in a policy.</p>

<p>Appeal from a decree of the Judge of Probate of Lincoln county,- granting a license to the appellee as administrator of the estate of'George H. Gross, deceased, to sell enough of the real estate of said deceased to raise the sum of $500.</p> <p>The appeal not having been seasonably taken, was granted on petition to the Supreme Court of Probate.</p> <p>The facts agreed upon by the parties are substantially as • follows: —</p> <p>George H. Gross, now deceased, Jan. 9, 1845, gave a bond to Cornelius Gross and Catherine Gross — his father and mother — for their maintenance, secured by a mortgage of his homestead. In October, 1849, said George H. Gross died, intestate, seized and possessed of a homestead (subject to said mortgage) and one other lot of land. Cornelius Gross (the father) died several years previously, but Catherine Gross (the mother) was living at the time of the proceedings appealed from.</p> <p>The appellee never had any dealings with the intestate, his claim as creditor of the estate being for supplies furnished by him to said Catherine long after the death of the intestate. There were no claims against the estate, at or since the death of the intestate, other than said bond.</p> <p>On March 6, 1860, Howard, the appellee, entered a petition in the Probate Court, alleging himself to be a creditor of the estate, and praying to be appointed administrator of the estate of George H. Gross. On the same day, without notice, and without the request or assent of any of the relatives of the intestate, he was appointed. At the same time, the appellants, children and heirs at law of the intestate; the widow of the intestate, then unmarried; and a brother of the intestate, wei-e residing in said county of Lincoln.</p> <p>There was no proof presented to the Judge of Probate that said Howard was a creditor of the estate, other than the allegation in the petition. Upon receiving the appointment, he filed a sufficient bond as administrator. May 29, 1860, an inventory was returned, in which the real estate was appraised at $300, and no personal property was returned.</p> <p>March 5, 1861, the appellee, as administrator, petitioned for license to sell real estate, on which notice was ordered and published, and license granted in May following. Under this license, the appellee sold all of the real estate of the deceased, June 8, 1861; one portion, subject to the mortgage before described, to the said Catherine, for $5, and the other to one John Gentleman, for $103, for which deeds were duly executed and delivered.</p> <p>The appellee took the oath, g'ave the boud and notice required by law, and sold according to his license.</p> <p>The purchasers took possession under their respective deeds, and were bona fide purchasers.</p> <p>At the time*the license was granted, the appellee had not filed or settled any account of his administration, or presented any claim against the estate, excepting the bond heretofore referred to ; nor had his claim as creditor been in any manner considered by the Judge of Probate. Commissioners of insolvency had never been appointed, nor was any proof offered to the Judge of Probate of the nature or amount of the appellee’s claim.</p> <p>The appellants filed the following reasons for the appeal:</p> <p>2d. Because said petition for license to sell said real estate for the payment of debts, &c., (the amount of said debts not having been ascertained by the settlement of an account or the report of commissioners of insolvency,) was not accompanied with a list, under oath, of the debts due from said estate, and of the amount of the expenses of administration up to the time of said application, as by the rules of said Probate Court is required, nor by any evidence of the nature and amount of said supposed debts and charges.</p> <p>3d. Because the administration granted to said Albert E. Howard, as a creditor of said deceased, was void, it having-been granted without notice to the widow or others next of kin to said deceased; without proof that they were unsuitable ; and without their being cited before the Judge of Probate for the purpose of taking out letters of administration on the estate of said deceased. And said administration was further void in this, that it did not appear by the said Howard’s petition for administration, nor by the evidence presented thereon, nor by the decree granting said administration, that there was personal estate of said deceased, amounting to twenty dollars, nor that the debts due from him amounted to that sum, and that he left that amount in value of real estate. Eor which reasons and because there was no property or estate of said deceased, whereon said administration could operate, the said administration and all acts done in pursuance thereof were irregular, illegal and void.</p> <p>4th. Because said Albert E. Howard was not a creditor of said deceased, and because there were no just debts due and owing from said deceased at the time of his death, nor from his estate since that time.</p> <p>5th. Because the said appellants claimed that the real estate of said deceased descends and belongs to them of right as his legal heirs, and that they ought not, by the sale of their said estate, to bear any part of the expenses of said Howard’s unnecessary, illegal and void administration,</p>

<p>By R. S., c. 65, § 13, in the settlement of any intestate estate, or of any testate estate which is insolvent or in which no provision is made for the widow in the will of her husband, or she duly waives the same, the widow shall be entitled to so much of the personal estate, besides her ornaments and wearing apparel, as the Judge deems necessary, according to the degree and estate of her husband, and the state of the family under her care.</p> <p>A widow’s claim for an allowance rests merely in the discretion of the Court. The circumstances under which this Court -will not reverse a decree of the Judge of Probate refusing an allowance to a widow.</p>

The plaintiff introduced testimony to prove the following facts, to wit: — In Jan., 1859, said Levi Spratt exchanged horses with said John Thurston. Said Thurston, about the first of March, 1859, sold the horse which he had received from said Levi Spratt to one Paul Ham. Sa'id Ham, about the first of June following, sold the same horse to Abel Gould; said Thurston, Ham and Gould believing that the title to said horse was in them respectively, as per said ’sales.

Reported from Nisi Prius, Mat, J., presiding. Assumpsit for money paid, &c. From the case, it appears that the plaintiff was the payee of a negotiable pi'omissory n,ote against Giles, as principal, and the other defendants as sureties. After the maturity of the note, the plaintiff sold and indorsed it to one Havener, who afterwards commenced an action thereon.

On Exceptions from Nisi Prius, Cutting, J., presiding. The facts sufficiently appear in the opinion of the Court. The petitioner’s brief does not indicate who made it. •

<p>Petition for a writ of certiorari.</p> <p>The boards of County Commissioners of the counties of Waldo and Somerset, acting jointly upon a proper petition, adjudged that a highway running into both counties — both termini of which were in Somerset county — should be located and established.</p> <p>The Commissioners of Somerset made a report of their proceedings under that adjudication. So much of their report as is necessary to be transcribed was as follows : — "Commencing on the line between Somerset and Waldo, and on the line between the towns of Burnham and Detroit, and about fifty rods northerly of John B. Pushaw’s house in the town of Burnham, and in the centre of the county road on the "horseback,” so called, at a stake marked "R,” &c.; "thence,” [specifying five corners with their respective distances, and referring to a stake and tree, for a monument at the end of each distance,] —"to a stake marked R, standing in the dividing line between the counties of Somerset and Waldo.” At this point, the way crossed wholly into Waldo and continued in said county of Waldo, thirty-four rods and eighteen links, when it crossed back into Somerset. The report continued: — "Somerset to build to said stake on the north, and Waldo to build to said stake on the south. Commencing again, also, on the horseback at a point thirty-four rods and eighteen links north of last named point, and at the north end of that part of the county road located this day by the County Commissioners of Waldo, at a stake in the centre marked R, Waldo to build to said stake on north, and /Somerset on south, as per agreement of Cbunty Commissioners of Somerset and Waldo; thence” [specifying eight different courses, with their respective distances, referring to a monument at the end of each,] "to a stake marked R, standing in the centre of the county road leading to Pitts-field village,” &c.; "said road to be four rods wide, and the line described to be the centre thereof.”</p> <p>" No damages are claimed by or awarded to- the owners of land over which the road passes, and two years are allowed to the towns of Pittsfield and Detroit to build and make said roads passable.</p> <p>"Given under our hands,” &c.</p> <p>This is a petition for a certiorari, with a view to quash the proceedings of the Commissioners of Somerset county in establishing the road.</p> <p>The petitioners assigned five errors, all of which appear in the opinion of the Court.</p> <p>The proceedings of County Commissioners in locating and establishing ways, being entirely regulated by statute, the statute provisions must be strictly pursued.</p> <p>In regard to ways in two or more counties, R. S., c. 18, § 17, provides that "each county must be represented by a majority of its Commissioners. A majority of those present may decide upon the whole matter. The duty of carrying that judgment into effect is to be performed in each county by its own Commissioners.”</p> <p>The "whole matter” cannot be "decided,” so long as anything remains to be determined. To determine that "common convenience and necessity require the location of a road” between two points, is not a determination of the whole matter. The actual location of the road upon the face of the ground, by courses, &c., must be done, before the whole matter is decided. There may be obstructions in the direct course to be avoided. The judgment is to be executed by the separate boards.</p> <p>Proceedings in the Commissioners’ Court do not come to judgment, until they are closed and ordered to be recorded. It cannot be when the Commissioners have decided the road prayed for to be of "common convenience,” &c.; for, upon proceeding to locate, they may find too high damages claimed, or greater obstructions than were first supposed; or after they report, juries, upon appeal, may award such damages as to induce the Commissioners to refuse to establish the road.</p> <p>Sections 16 and 17 are barren of directions as to mode of proceedure on joint petitions. Legislature only intended to point out steps peculiar to joint petitions, leaving all other steps the same as those required before a single board.</p> <p>Sawyer v. County Commissioners of Kennebec, 25 Maine, 231, decides that, under R. S. of 1841, c. 25, § 26 — which was an exact transcript of the Act of 1832 and 1836 — in case of a joint view, after the adjudication that the road prayed for is of "common convenience,” &c., it is the duty of the separate boards to make the location each in its own county. When the laws were revised in 1857, the provisions above cited had been in force twenty-six years, and a judicial construction given them. Instead of re-enacting them as they then were, very essential modifications of language were made. Why that change, if the law was intended to remain the same ?</p> <p>Where, in the revision of a law, a material change is made, the Legislature cannot be presumed to have unintentionally made it. Woodman v. Valentine, 24 Maine, 553.</p> <p>So, when, in the revision, some part of the revised Act is omitted, the part omitted cannot be revised by construction, &c. Pingree v. Snell, 42 Maine, 55; Ellis v. Page, 1 Pick., 43.</p> <p>The counsel then argued the errors assigned.</p> <p>Under the 4th error assigned, counsel cited R. S., c. 18, § 4; Gushing v. Gay, 23 Maine, 9.</p>

This is an action for supplies furnished by Hallowell to widow Sally Wright and her five minor children. The fact that Mrs. Wright and children fell into distress, as alleged in the writ; that supplies were furnished to a certain amount hereafter to be ascertained; that a notice was seasonably sent and received; and that Mrs. Wright had her legal settlement in Augusta at the time of her marriage with John Wright, were admitted by the defendants.

On Beport from Nisi Prius, Appleton, C. J., presiding. Writ op Entry. Plea, general issue, and brief statement alleging title in the defendant. To make out his casé, the demandant introduced the original writ, James C. Boynton v. Joseph II.

On Eeport from Nisi Prius, Bice, J., presiding-. Assumpsit. The writ was against the principal defendants, several alleged trustees' residing in Lincoln county, and the President, Directors & Co., of American Bank (alleged trustees) of Hallowell, Kennebec county. The note declared on was as follows : — $3504,58. Sept. 10th, 1859.

On Exceptions from Am JPrius, Appleton, C. J., presiding. Trover. Defendant called Abner Coburn, who testified as follows : I had an interest in the Murray and Wyman logs, and had, when they were sold. Our logs were bargained for in July, 1859. Perhaps the title passed in 1860. The memorandum at the bottom of the bill of sale shows the time.

On Exceptions to the rulings, pro forma, of Rice, J., at Nisi Prius. The defendant appeared at E. O. Bean’s office, on the return day, and filed a written protest against the justice taking jurisdiction of the action. The justice overruled the objection, and required the defendant to proceed to trial at said Bean’s office.

On Report from Nisi Prius, Appleton, C. J. presiding. Writ oe Entry. The question was as to the title to a two foot strip of land which the defendant’s grantor conveyed by his deed of warranty to Isaac Bonney, in 1831, (which deed was not recorded until I860,) off from the easterly side of his lot, and adjoining said Bonney’s other land, under whom, through several mesne conveyances, the plaintiff holds.

On Beport from Nisi Prius, Walton, J., presiding. Debt on a poor debtor’s bond.

<p>On Motion to set aside the verdict as being against law and the evidence.</p> <p>Trespass for preventing the plaintiff from floating his logs through the flood gates'of the defendant’s,dam on theWinnegance river.</p> <p>The evidence tended to show-that the Winnegance river is a navigable stream; that the defendant owned or occupied a mill thereon with a dam, in which were flood gates; that the plaintiff had a raft of logs in the stream, which he undertook to turn through these flood gates, without interfering with the operation of the defendant’s mill; and that the defendant by force prevented his doing so.</p> <p>The defendant introduced evidence of his-title, and other evidence which is not material in the view of the case taken by the Court.</p> <p>The verdict was for the plaintiff, and the defendant moved to set it aside.</p>

On Report from Nisi Prius, Dickerson, J., presiding. Writ oe Entry. The only question raised was as to the sufficiency of the appraisers’ return on a levy of an execution upon real estate. So much of the return as is matei'ial was as follows :— April 26, 1860.

On Report. Bill in Equity. This bill was once before the Court on demurrer. Vide Orooker v. GrooJcer, 46 Maine, 250, where the bill is reported at length. It now comes up to be heard on bill, answer and proof. The bill was originally against about forty defendants, including the President, Directors & Co. of the Lincoln Bank, which is the party now defending.

<p>On Exceptions from JSTisi Prius, Fox, J., presiding.</p> <p>The facts are sufficiently set forth in the opinion.</p>

<p>On Facts agreed. Debt upon an award.</p> <p>The plaintiffs, on the ninth day of January, 1861, having a claim against the State Prison, which was disputed by Thomas W. Ilix, then warden, it was submitted by them and said Hix, in his capacity of warden, to referees approved by the inspectors.</p> <p>An award in due form was made, upon which this suit was brought.</p> <p>■The only question raised was, whether Hix had authority to make the submission.</p> <p>This action, though nominally against the warden, is really against the State.</p> <p>The State cannot be sued. But it may authorize a suit against its agents. But it may also take away this power, at any time before judgment. A creditor of the State Prison has no vested right to a suit against the warden. It is a remedy given by statute, and may be taken away by statute. So also may the power of the warden to refer be taken away. The Legislature may take away the power generally, or the power to refer any particular claim. It may be done directly or indirectly.</p> <p>It is well settled, that where a remedy is given by statute, and a subsequent statute gives a different remedy, the latter supersedes the former. Titcomb v. Union Ins. Oo., 8 Mass., 326; Howe v. Starkweather, 17 Mass., 240; Bassett v. Oarleton, 32 Maine, 553.</p> <p>The Resolve of Feb., 1860, passed before this reference was made, gave the plaintiffs a new remedy. This new remedy superseded the other, and took away the power of the warden to refer.</p> <p>The warden having no power to refer., the award is void.</p>

On Exceptions from Nisi Prius, Rice, J., presiding. The question raised is, whether the person summoned as trustee in this action may recover costs.

On Report. Assumpsit. The case came before this Court under § 18, c. 77, of the R. S. John P. Smith died testate, leaving a wife, son, mother and two sisters. The widow declined the appointment of executrix, and defendant was appointed administrator with the will annexed. The widow waived the provisions made for her in the will, and received her legal benefits under the statute. Since administration was commenced the mother of the testator has died.

<p>On facts agreed.</p> <p>Writ of Entry.</p> <p>Both parties derive title from Daniel E. Somes, who received his title from Lawrence Barnes, Nov. 14, 1857.</p> <p>On Nov. 24, 1857, Somes mortgaged the premises to the plaintiffs, by deed duly recorded Nov. 27, 1857.</p> <p>On May 8, 1861, the plaintiffs having, in an action against Somes, commenced in 1859, recovered judgment for possession of the premises, for breach of the condition of the mortgage, received seizin and possession thereof from the officer, under the writ of habere facias, which was duly recorded May 21, 1857; and, on April 1, 1862, the plaintiffs commenced this action, to recover their possession, against the defendant, who, in the meantime, had entered and dis-seized them.</p> <p>The defendant claims title by virtue of an alleged lien under a contract between one William B. Pierce and the said Somes, for building a house upon the demanded premises, secured by an attachment of the same on mesne process, made Nov. 13, 1858, and duly followed by levy, Oct. 29,- 1860 ; and by a conveyance by a deed of warranty from said Pierce to the defendant, Jan. 1, 1862.</p> <p>The main question was whether or not the Pierce lien commenced prior to Nov. 24, 1857, the date of the plain-” tiffs’ mortgage. The defendant contended it did, and put in the following contracts, A and B, together with the deposition of the said Pierce.</p> <p>"A.</p> <p>"This agreement, made this twenty-fourth day of May, 1853, between William B. Pierce and Daniel E. Somes, both of Biddeford, witnesseth, that the said William B. Pierce agrees, for the consideration hereinafter expressed, to provide and put up for the said Somes, the frame of a dwelling- ■ house, 28 feet long by 20 feet wide, two stories high, the lower story to be 8^- feet, and the second story to be 8 feet high, with square roof; to board the same with suitable boards, and shingle the roof with good white hemlock shingles, the eaves to project 10 inches ; to-build two chimneys, which are to be well leaded to prevent leaking through the roof; to finish and put on the outside trimmings ; two outside panel doors, 13 window frames and sash for 12 lights, each 9 by 12 inches; and to lay under floors for both stories of the house; all to be done in a good, workmanlike manner, on or before the fifteenth day of June next.</p> <p>"The said William B. Pierce also further agrees, for the consideration hereinafter named, to provide all the materials of suitable quality, free from rot and shakes, and build and finish on a lot to be selected by said Somes in Saco, a two-story dwellinghouse' and out buildings, according to the plan this day agreed upon and signed by them; the walls to be well boarded and covered with good, fair clapboards worth $16,00 per thousand, the roof to be square and shingled with good white hemlock shingles, the eaves to project 14 inches, and to be sheathed underneath; chimneys to be of suitable size, and to be well built and leaded to prevent leakage through the roof; windows to have 12 lights, each 9 by 13 glass; the finishing boards to be free from sap and generally free from knots ; the doors below to have morticed latches, and the doors above to have common handle latches; all the wood work inside and the outside to be painted with two good coats of- white lead paint, or such other color of paint as said Somes shall prefer. The whole to be built and finished in a good and workmanlike manner, and to be completed on or before the first day of September next. Said house to be well plastered with one coat and smoothed.</p> <p>"And the said Daniel E. Somes on his part, hereby agrees to dig and stone the cellar, and provide and set up the underpinning for the last mentioned house so as not to delay the said Pierce in the performance of the contract aforesaid, and to pay to the said Pierce the sum of eleven hundred and fifteen dollars, which is to be in full satisfaction for the performance of the aforesaid contract, in part payment of which sum the said Somes is to make and deliver to the said Pierce a good and valid conveyance of four acres of land, out of a tract of forty-four acres heretofore conveyed to said Somes and others, by William Outts, to be laid out in one body in a convenient form in any part of said tract which said Pierce shall select, not to interfere with the road to be made across said tract, which said Pierce is to receive in payment of three hundred and twenty dollars of the sum aforesaid; the residue to be paid by said Somes in cash.”</p> <p>(Signed) "Wm. B. Pierce,</p> <p>"D. E. Somes and others.”</p> <p>Witness. — "James S. Anderson.”</p> <p>"B.</p> <p>" Memorandum of an agreement between D. E. Sonies, of the one part, and William B. Pierce, of the other part, entered into at Biddeford, this 25th of January, 1858, witnesses : —</p> <p>"That said William B. Pierce agrees to find all materials and to build, finish and complete, above the underpinning, a two-story wooden house to be situated near the dwelling-house of Nathaniel Currier in Saco ; main house to be two stories and 20 by 28 feet on the ground, with an L part one story high, 12 feet by 22 feet; rooms in the first story are to be 9 feet high, and in the second story 8 feet high; one chimney in the main house and a chimney in the L part, — ■ no oven in either. House in its arrangements, finish and painting to be in all particulars the same as the one on Mt. Vernon street, Biddeford, built by Charles Hardy and by him sold to Charles H. Milliken, except, that the roof is to be covered with cloth and painted instead of being tinned.</p> <p>" Said Somes, on his part, is to furnish the foundation for said house and to pay said Pierce for said house, entirely completed, the sum of eight hundred dollars. And it is further agreed between said parties, that said Somes shall furnish the frame of said house at the rate of $9 per M feet, and the hemlock boards for the same at the rate of $8 per M feet, and all sheathing boards, flooring and finishing boards at the rate of $10 per M feet, and all glass, hardware, paint and oil for the same as cheap as can be bought for cash anywhere, for all of which materials said Pierce is to account and pay said Somes. And said Somes agrees to convey to said Pierce, by a good and sufficient warranty deed thereof, a house lot situated on Maple street, in said Saco, numbered--, on plan of lots of D. E. Somes and others, for the sum of three hundred dollars, which sum said Pierce agrees to allow to said Somes for the same, in part payment of the said eight hundred dollars. Said house to be completed on or before the first day of June next.</p> <p>And said Somes is to advance to said Pierce the sum of fifty dollars in cash in the month of February next, towards the said eight hundred dollars • and the balance that may be due on the completion of said house.”</p> <p>'(Signed) "D. E. Somes,</p> <p>Witness. — "S. W. Buques.” "Wm. B. Pierce.”</p> <p>The first item of account in the suit, Pierce v. Somes, was as follows :—</p> <p>"Aug. 26, 1858. — Daniel E. Somes to Vm. B. Pierce, Dr.</p> <p>"To building house, northwest side of Maple street in Saco, and furnishing labor and materials for same, price as per first agreement, $800.”</p> <p>The material parts of the said deposition are as follows : —</p> <p>" Direct examination. — 2. I completed a house for Daniel E. Somes, in 1858, on land in Saco.</p> <p>"3. I built it in pursuance of a contract between him and me.</p> <p>" 4. The original contract was made, as near as I can recollect, some three or four years previous to building the house.</p> <p>" 5. The first work I did for this house was in the winter of 1856-7 ; the doors were made then. The first materials purchased were for the doors, either when they were made or shortly before.</p> <p>"6.1 made doors, as before stated, and then he had not fully made up his min$ — some alterations and arrangements he wanted to make, and he concluded to defer the matter till the next winter — the next winter, he concluded what alterations he wanted, and I went on and built the house. This was in the winter of 1857-8. I then made blinds and sash for the house, and, in May, 1858, I raised the frame, and completed the house that season.</p> <p>"Cross-examination. —12. Our agreement, in the fall of 1856 — 7, was, that I was to build the house at my leisure. That winter I made the doors. The next spring I was busily engaged and put off the commencement of the house, from time to time, to suit my convenience. Fall of 1856-7, I commenced again, and, before snow came, we staked out the cellar and had some digging done for the foundation.</p> <p>" 17. The lot was not specified when the contract was made.</p> <p>" 18. The lot was selected in the fall of 1857, the fall before the house was built.</p> <p>" 22. He agreed, in the fall of 1857, to pay me for building the house the price charged in my writ, with the alterations which were made from the original plan.</p> <p>"24. The final plan was agreed upon in the fall of 1857, and the plan was not fully completed until we finished the building of the house.</p> <p>"29. The principal alterations were agreed upon before framing. The plan was agreed upon and the time when the building should be completed, but alterations were suggested and agreed upon during the building of the house.</p> <p>"30. The house was to be completed in June, 1858 — June or July — but, from another ai’rangement, it was not completed until August.</p> <p>"34. I built the house in accordance with contract "B,” drawn in 1857, with what alterations were made afterwards.</p> <p>"37. The house I levied upon was the house I built under that specification and in fufilment of the original contract.</p> <p>"39. We altered the size of the L part and the inside of the main house — one additional chimney — plan of L altered. The alterations were made under an agreement with Somes.</p> <p>" Direct resumed — 1. The original contract was unperformed and in force, and contract "B” was drawn up for the purpose of carrying out contract " A,” with the alterations and substituted specifications which had been at that time, and previously, agreed upon between me and Somes.</p> <p>"It was my custom to make doors, sash, blinds, &c., in the winter, for houses I had contracted for; sometimes, for houses not contracted for.”</p> <p>The Court was to draw such inferences as a jury might; and judgment was to be rendered for whichever party the Court should find the title to be in.</p> <p>Both parties derive title from the same person, Daniel E. Somes. The real question is, then, which has the older and better title.</p> <p>The plaintiffs’ title can only date from Nov. 24, 1857, the date of their mortgage deed from Somes.</p> <p>The defendant’s title, if the lien oí Pierce was a good and valid lien, and was made available by the levy and prior attachment, bears date some time prior to the 24th of Nov., 1857.</p> <p>This must depend upon the question, whether Pierce had or not a lien under the statute, upon the demanded premises, for the amount of the debt due him from Somes, at the time of the commencement of his suit against Somes, and for which he recovered judgment at the Sept, term, 1860, of S. J. Court, and whether the proper legal steps were taken to secure the benefit of that lien.</p> <p>The evidence to show whether Pierce had a lien or not,' is to be found in his deposition. The evidence to show whether the proper legal steps were taken to perfect and secure the benefit of said lien, if any existed, is to be found in the copies oí proceedings in the suit, Pierce v. Somes, making a part of this case.</p> <p>Did Pierce do the work and furnish the materials for which he recovered judgment against said Somes, by virtue of a contract, with said Somes for building the house, parr of the demanded premises ? If he did, he had a lien, on said house and the lot on which it stands to secure payment of the sum due him therefor.</p> <p>The deposition of Pierce shows that every article of materials furnished, and all the labor performed in building said house, was under and by virtue of contract with Somes; that the contract was first made in May, 1853 ; that part of the contract was fulfilled prior to November, 1857, and prior to the execution of the plaintiff’s mortgage, and the remainder of the work was done after said mortgage was given. But the plaintiff’s counsel argues that the contract of May, 1853, became not null and void, but"efete ” — was " waived,” &c. The performance of the contract of May, 1853, was postponed from time to time by the agx-eement or consent of parties, ancl the witness Pierce tells why it was so done. But it never was waived or abandoned.</p> <p>Pierce did work under this contract for or upon the house on the demanded premises, in the winter of 1856 and 1857, when he made the doors. (See answer to 5th interrogatory.)</p> <p>In the fall of 1857, he was at work getting out the materials ; the cellar was staked out, and the foundations partly prepared; and, in the winter, the sash and blinds were made. (See answers to 6th direct interrogatory and 12th cross-interrogatory.)</p> <p>This was all done previous to the writing of the contract of Jan. 25, 1858, and shows that there ivas no waiver or abandonment of the prior contract of 1853.</p> <p>The contract of Jan. 25, 1858, was merely substituted for the other, for the purpose of adapting it to the alterations as agreed upon between Somes and Pierce. The work went on to its completion the same as if no second or substituted contract had been written out. The same house, on the same lot, and for the same owner, was finished up in the summer of 1858, that had been commenced in the summer and fall of 1857, before the second contract, (so to speak, for want of a better term,) was written out.</p> <p>The payment for the work was not, under either writing, to be made until the work was completed.</p> <p>The lien, therefore, was in no way affected by the alterations in the contract as agreed upon by Somes and Pierce.</p> <p>It was a lien throughout, for work done and materials furnished, in building a house by virtue of a contract, having its inception and its termination at the same points of time, whether the whole work was done under one and precisely the same contract, or whether it was done under a contract changed at different times, in reference to some of the minor details relating to the plan and specifications of building.</p> <p>The substantial part of the contract was the undertaking to build a house, and for the payment of the sum that might become due on the completion of this undertaking, the statute gave the builder a continuous, indivisible and entire lien, covering all that was done from the time of making the original to the final completion of the building.</p> <p>That changes in the plan and specifications, or even prices, were made, as the work proceeded, could make no difference. The work was still prosecuted at each step under and by virtue of a contract, and the continuity and oneness of the lien was preserved, by the work being done upon the same house, for the same owner, by the same builder, and the time of payment also being the same, viz., the time of finishing the building.</p>

<p>Tlie Act of March 17, 1802, in relation to the use of office copies of deeds, does not repeal the twenty-sixth rule of Court, hut enlarges its operation.</p> <p>When such copy is admissible in the case, no exception lies to its admission at any particular time.</p> <p>Exceptions to the exclusion of interrogatories in a deposition, will not be sustained, when it appears that the same questions, with their answers, have been admitted in another part of the deposition; nor when the deponent answers that he cannot tell positively, but presumes that a particular state of facts exists.</p> <p>On the trial of an issue, whether the grantor in a deed was of sound mind at the time of its execution, neither the judgment of the Court setting aside his will, nor the record of the appointment of a guardian made nearly a year after the date of the deed, is admissible.</p> <p>If the facts assumed in a hypothetical question, propounded to an expert, are not themselves proved substantially, the answer to such question is not to be considered by the jury.</p> <p>A man may not have sufficient intelligence and understanding to manage his affairs and transact business in a proper and prudent manner, and yet may not be non compos mentis.</p> <p>The law fixes no particular standard 'of intelligence necessary to be possessed by parties in making a contract.</p> <p>Legal competency in a party to a contract is the possession of mental capacity sufficient to transact business with intelligence and an intelligent understanding of what he is doing.</p> <p>Instructions to the jury upon questions not passed upon by them in rendering their verdict, are no cause for setting it aside, even if they were erroneous.</p> <p>Of sotting aside a verdict as being against the evidence.</p>

On Exceptions from Nisi Prius, Rice, J., presiding. Assumpsit, for money had and received. It appeared that the money in controversy was the money of the plaintiff before her marriage, in June, 1834, and was never reduced to possession by her husband during their marriage, but remained during that time under her sole control. The defendant claimed the money as belonging to the estate.

On Exceptions from Nisi Prius, Davis, J., presiding. Assumpsit, upon a policy of insurance against fire. The verdict was for the plaintiff, and the defendants moved that it be set aside as being against the weight of evidence, and also on the ground of newly discovered testimony. But the view taken by the Court renders a report of the testimony useless. The facts sufficiently appear in the opinion of the Court.

On Exceptions from Nisi Prius, Davis, J., presiding. Assumpsit on a policy of insurance against fire. The policy covered all the buildings occupied by the mortgager, when in fact he owned and mortgaged to the plaintiffs’ testate only a portion of them. The defendants contended that the plaintiffs, having insured what they had no interest in, the policy was void.

On Exceptions from Nisi Prius, Dayis, J., presiding. Assumpsit on two policies of insurance against fire. One policy (No. 48) was on the merchandize in the store house.” This policy contained a provision that, if the risk be increased by any means whatever, within the control of the assured,” the policy shall be void.

On Exceptions and Motion, from Nisi Prius, Davis, J., presiding. Writ oe Entry. Plea, general issue, and joinder. The verdict was for the plaintiff.

On Exceptions from JSTisi JPrius, Davis, J., presiding. Forcible Entry and Detainer. The premises, consisted of a lot of land, with a house on one portion of it. The respondent acquired his title in 1857, and he has ever since been in possession and occupation of the same, his family living in the house. Subsequently, the respondent executed two mortgages of the premises, which came by assignment into the hands of the complainant, prior to March 21, 1863.

On Exceptions to the ruling of Davis, J. Real Action. The plaintiff claimed under a levy; the defendant under a mortgage. The plaintiff commenced an action against one James P. Hall, aud attached the premises, Feb. 9, 1861, recovered judgment, May 22, 1862, and levied his execution on the premises, June 5, 1802.

<p>Where the defendant leased a lot of land to the plaintiffs for a specified annual ground rent, and therein covenanted to erect a building thereon within a ' stated time, and to let to them the building at a specified rent; and the lease further provided that, “ if the said” defendant “ shall decline to erect said building” within the time mentioned, “ it is agreed that the plaintiffs “ may go forward and erect the same,” &c.; — Held, that, in an action of covenant broken for not erecting the building, the language, “ if the said” defendant “ shall decline to erect said building,” must be construed to mean — if the said defendant shall violate his contract, then the plaintiffs may proceed and perform it for him.</p> <p>TMs permission may be relied upon only in the reduction of damages, and not for such purpose if the defendant has thrown any obstacles in the way of a reasonable performance of the plaintiffs’ stipulated rights.</p>

<p>Where the reversionary interest to land leased is conveyed by the owner, and, before the first quarter’s rent is due under the lease, without any reservation to the grantor in his deed, expressed in language fit and appropriate, the rent will pass by the deed.</p> <p>Where the deed conveying such reversion, declares the premises are “ subject to the lease,” describing' it, and the grantor covenants to defend against all lawful claims, &c., “except said lessees or assigns ¡’’ — these words are only intended as a protection against the general covenants of warranty, against the claims and demands of the lessees, and not the grantor’s claims against them.</p>

On pacts agreed. Assumpsit. Tbe facts sufficiently appear in the opinion of the Court. substantially argued as follows : — I. The carrier, who is unable to obtain his freight, on right delivery of… Held: that the master, or his owner, has the right to tranship, if he is able and chooses to do so, to earn his own freight.

<p>When, in assumpsit against the defendants as surviving partners of a firm alleged to have consisted of themselves and a person deceased, the partnership is in issue, the declarations of such deceased person, made in the absence of the defendants, and not communicated to either of them, are not admissible against the seasonable objections of the defendants with the instruction that they were not evidence against the defendants, but were admissible to prove that the deceased was a partner; and that such proof was necessary.</p> <p>Neither are promissory notes, bearing date long after the debt in suit was contracted, signed by the deceased, using his name and Co., — the name of the alleged firm, — when it is not proposed to show that either of the defendants ever had any knowledge of such notes, until after the death of the deceased.</p>

<p>Bill in Equity.</p> <p>The case was heard on demurrer.</p> <p>The facts sufficiently appear in the opinion of the Court.</p>

On Report from Nisi Prius, Barrows, J., presiding. Writ oe Entry. The plaintiff’s title depended upon the validity of an attachment of the laud in dispute. The defendant's title was a deed executed after the alleged attachment and before the levy.

On Exceptions from JfisiPrius, Walton, J., presiding. Petition for increase of damages sustained by the petitioners, consequent upon the taking, holding and occupying of their land by the Androscoggin Railroad Company. To the acceptance of the verdict of the jury, the petitionei’s filed the following objections, viz. :— 1.

<p>On Exceptions to the ruling of Barrows, J.</p> <p>Petition for Partition, in which the premises are described as, — "A parcel of land situate in West Bath, in the county of Sagadahoc, and bounded as follows, to wit: — Beginning at a spruce tree in the wall, near Eroeman’s field, so called, — thence north, sixty-eight degrees west, to New Meadows river, as surveyed by Timothy Batchelder, March 15th, 1849 ; thence beginning at said spruce tree, and running southerly by the west line of the Ereeman field, as now fenced, to low water mark; thence easterly, northerly and westerly to New Meadows river; and by the river to the Batchelder line.”</p> <p>After verdict for the petitioners, judgment was entered for partition, and commissioners were appointed. The warrant to them followed the petition in the description of the premises. They made their report and the respondents objected to its acceptance; but the presiding Judge overruled the objections and accepted the report, and the respondents x excepted.</p>

<p>If railroads make a connection under a contract, its continuance, in certain cases, will be enforced in equity.</p> <p>But, where such contract has been terminated by the parties, equity will not interfere.</p> <p>The seventh section of the charier of the Androscoggin Railroad Company gives that company the right to connect its railroad with that of the Androscoggin and Kennebec Railroad Company, and the latter to connect its road with that of the former; but each company has the election whether it will thus connect or not; and the provision in question is a privilege and not a contract.</p> <p>It seems that either company, having once elected to connect, might at its pleasure disconnect.</p> <p>If not, the Legislature may authorize it to do so; and the other company cannot complain.</p> <p>It seems, that if one company has elected to connect, that it does not impose on the other company the obligation of continuing the guage as existing at the time of the connection.</p> <p>But, if so, the right does not become vested until the election to connect; and if, before such election, the other company is relieved by an Act of the Legislature, accepted by them, a subsequent election to connect is of no avail.</p> <p>Chapter 475 of the laws of 1860, authorized the Androscoggin Railroad Company to change the guage of their road, and the Androscoggin and Kennebec Railroad Company, not having elected to connect their road with that of the former company until after that Act was passed and accepted, can now do it only in subordination to the rights conferred on the Androscoggin Railroad Company by it.</p>

On Exceptions from Nisi Prius, Cutting, J., presiding. Writ oe Entry. The plaintiff traced a record title to the demanded premises back to 1824. Held: accompanying possession, an assertion of title. That, or some other equivalent and significant act, must be done, before possession, which the law presumes to be rightful as to the true owner, can be' held as adverse and wrongful.

<p>No Court can rightfully render judgment in a cause, until it has acquired complete jurisdiction over the parties, the subject matter of the suit, and the process.</p> <p>Such jurisdiction is not acquired until the defendant is in some way notified of the pendency of the suit.</p> <p>If, upon inspection of the record, a judgment, by whatever Court rendered, and by whatever means brought in question, appears to have been rendered without such notice, it is absolutely void for such purposes.</p>

<p>Although an estoppel m pads may not always run with the land, a subsequent purchaser with knowledge of the facts constituting the estoppel, can stand in no better condition than his grantor.</p> <p>An absence of seven years or more from the established residence of a party must be proved before the presumption of his death can be raised.</p> <p>And where a title is claimed to be in the father, because of the death of his , son, not only the death of the son must be shown, but also that he died without issue.</p>

On Exceptions from Nisi Prius, Cutting, J., presiding. The material facts sufficiently appear in the opinion of the Court. The note is not conclusive but may be explained by parol. I. The words principal” and surety,” on this note, are no part of the contract between the promisees and promisors. The contract is the promise to pay so much money in such a time, and whether a signer is principal or surety, does not vary his .contract.

On Beport from Nisi Prius, Cutting, J., presiding. Debt on a judgment to secure an attorney’s lieu for his fees and disbursements. The plaintiff employed Joseph Baker, an attorney of this Court legally admitted to practice, to bring a suit in his favor against the defendant as administrator on the estate of Elbridge Tyler.

On Exceptions from Nisi Prius, Daneortii, J., .presiding. Assumpsit for money had and received. The facts sufficiently appear in the opinion of the Court. The verdict was for the defendant, and the plaintiff excepted to the rulings of the presiding Judge.

On Motion and Exceptions from Nisi Prius, Danforth, J., presiding. Assumpsit -on a promissory note. The defendants introduced' several depositions, all taken at the same time, in Boston, on notice to Charles P. Curtis, jr., an attorney in that city, who was not then and never had been attorney of record for the plaintiffs.

On Exceptions from Nisi Prius, Danforth, J., presiding. Writ of Entry. The plaintiff claimed to recover a tract of land known as the homestead of George Sidensparker by virtue of a levy. That the original title was in the latter was not disputed. The plaintiff introduced a note signed by George Sidensparker, for $162,50, payable to the plaintiff or order, on demand, dated April 4, 1837. It appeared that this note was put in suit, January 6, 1856.

On Report from Nisi Prius, Danforth, J., presiding. Assumpsit on a policy of insurance against fire.

On Motion. This case came up on motion by the plaintiff to set aside the verdict, which was in favor of the defendant, on the ground that one of the jurors was related within the sixth degree to himself. The facts sufficiently appear in the opinion of the Court.

<p>On Motion and Exceptions from Nisi Prius, Kent, J., presiding.</p> <p>Case for malicious prosecution and slander.</p> <p>The facts sufficiently appear in the opinion of the Court. Verdict for the plaintiffs for $1400.</p>

On Exceptions and Motion. Case. This action was founded on R. S., c. 113, § 47, for aiding a debtor in the fraudulent transfer of his property, to secure it from creditors.

On Facts agreed. The facts sufficiently appear in the opinion of the Court. The case was reported with an agreement, that, if the Court should be of opinion that the plaintiff is entitled to recover, judgment was to be rendered in his favor for the amount due on the orders and costs if not, for the defendants for their costs.

<p>On Report from Nisi Prius, Dickerson, J., presiding.</p> <p>Certain inhabitants of the city of Belfast petitioned the municipal officers of the city to " lay out and construct a bridge, or public town way, across the Passaggassawakeag river, on the site of the Nickerson or upper bridge, so called, agreeable to the charter or Act of the Legislature.” The municipal officers refused to grant the prayer of the petition. Thereupon the petitioners presented a similar petition to the County Commissioners for Waldo county, alleging an unreasonable refusal on the part of the municipal officers .in the premises, and claiming to.be aggrieved thereby-</p> <p>After due preliminary proceedings had-, the Commissioners laid out the bridge and way prayed for, and duly made their report. From this decision of the Commissioners, the city of Belfast appealed, when a committee was agreed upon, which, after proper proceedings, heard the parties and returned their report to the Supreme Judicial Court, thereby affirming in part the decision of the Commissioners. To the acceptance of this report, the city filed several written objections, one of which was the want of jurisdiction in the County Commissioners.</p>

On Exceptions, by defendant, to the ruling of Dan-forth, J. Assumpsit. The case is stated in the opinion. The defendant also filed a motion to set aside the verdict, as being against evidence, but it was waived at the argument..

<p>Parol evidence is admissible to identify the subject matter of a recorded vote of a corporation.</p> <p>Exceptions cannot be sustained to the erroneous admission of testimony upon questions, which afterwards, on the trial, became immaterial.</p> <p>If a witness can give the substance of a conversation in relation to the matter in issue, his testimony is not to be excluded because he cannot give all the conversation which took place at the same time, in relation to other matters.</p> <p>Where evidence upon a particular point has been introduced without objection, and commented on by counsel, and instructions in relation to it are given without objection, it is too late after verdict to object to the instructions on the ground that the testimony was inadmissible.</p> <p>Where the question is whether a party has waived certain rights, the instruction that, “ if he, in the conversation testified to, intended and so expressed himself as to be understood by the other party, in the exercise of common understanding, and was understood as waiving his right, he did waive his right,” is unobjectionable.</p> <p>Erroneous instructions on the question of wmownt of damages are no ground for setting aside the verdict, if the jury find the plaintiff' is not entitled to damages.</p> <p>Assumpsit cannot be maintained for breach of covenants in an instrument under seal.</p>

Bill in Equity. The case was heard on demurrer. The bill, omitting the formal parts, was as follows : — That from on, or about, the first day of January, 1860, until the first day of September, 1863, or thereabouts, Frederick Swift and George H. Blanchard, both of the city of New York aforesaid, co-partners, under the style of E. Swift & Co., Isaac B. Gager, of said city, Osborn Howes and Nathan Crowell, both of Boston, in the Commonwealth of Massachusetts, co-partners,…

Bill in Equity. The case was heard on demurrer to the cross bill. The complainant, as mortgager, brought a bill in equity against the respondent, as assignee of the mortgage, to redeem it. The respondent appeared, and filed his answer, and upon the hearing a master was appointed, who subsequently made a partial report. After the answer was filed, the complainant assigned all his interest in the mortgaged premises to his solicitor.

On facts agreed. Assumpsit. The note declared on was as follows :— Bangor, August 24, 1859. For value received, we jointly and severally promise to pay B. D. Peck, or order, two thousand dollars, in four months, at Suffolk Bank, Boston. A. E. Hallowell, $2000. Geo. E. Smith.”' P. N. P. Dec. 27th, 1859. 5912.

<p>Whether or not a complainant in equity, who has made a tender before commencing his suit to redeem a mortgage, must bring the tender into Court, quern.</p> <p>In equity, where the complainant claims under an officer’s sale, in irwitum, he is justified, in asserting his right against other persons, in making the execution debtor a party.</p> <p>Where a creditor caused his debtor’s right to redeem a prior mortgage to be sold on execution, and, after the time for redemption had expired, he commenced a suit in equity against the assignee of said mortgage to redeem it, making the execution debtor also a party respondent; and alleged, among other things, that a certain other mortgage therein described, given by said debtor to the other respondent -was fraudulent and void as to the complainant, and prayed for permission to redeem the former mortgage, that the latter might be declared void, &c.; — Held, that on demurrer, the bill would not be dismissed on the ground of multifariousness, or misjoinder of parties.</p> <p>Whore, in such a suit,' both respondents testify that the amount purporting to be secured by the second mortgage was actually due to the mortgagee when it was given, and explain the several items constituting the amount; and, on the other hand, the complainant proves that said mortgagee had declared that said amount was not due; and it appeared that the mortgager had subsequently used the mortgage for his own benefit, with the assignment of the mortgagee for that purpose; — JBeld, that although those facts threw doubt upon the bona fides of the transaction, the evidence is insufficient to overcome the testimony of the respondents.</p>

On Report from Nisi Prius, Danfoktii, J., presiding. Assumpsit to recover pay for services as president of the defendants for the year ending Oct. 1, 1860. The case is stated in the opinion.

On Report from Nisi Prius, Walton, J., presiding. Writ of Entry.

On Report. Debt on a bond dated Aug. 30, 1839, given by Stephen Bartlett, the defendant's intestate, to the plaintiff. The condition of the bond appears in the opinion of the Court. The defendant was admitted to be administratrix upon the estate of the intestate, who died Aug. 29, 1861.

<p>By c. 79, of the Public Laws of 1859, if the representative party, mentioned in R. S., c. 82, § 88, be only nominally such, the interest being in another or others, in whose name, or names, the action might have been brought, or defended, the five sections mentioned in said chapter 82 shall apply, and such nominal party and the adverse party may be examined as witnesses.</p> <p>If the intestate were owner of the note in suit, the administrator of the intestate could not be regarded as a nominal party.</p> <p>In an action by an administrator of a deceased party, against the maker of a note, the defendant will not be permitted to testify that he paid the plaintiff’s intestate the contents of the note before the latter’s death.</p> <p>If the maker of a note, payable in part in specific articles, expressly promise to pay its contents to the assignee of the same, the latter may maintain an action in his own name.</p> <p>A verdict will not be set aside as being against evidence, unless it is manifestly so.</p>

On■ Exceptions from Nisi Prius, Appleton, C. J., presiding. Trover. The plaintiff testified: — The cattle were mine. I had them in use of one Williams in the woods; one Chatterly was teamster. Chatterly asked me if I would sell the cattle and take orders on Black, Brothers. I told him I would for the sum of $120 and interest. This was in February. The next I heard, Chatterly had taken the oxen to his home.

On facts agreed. In 1855, the County Commissioners for Penobscot county, duly laid and established a way, extending'from the brick factory in Dexter to Allen Young’s in Corinna, and passing over’land owned by the petitioner.” In August, 1861, the County Commissioners, after due proceedings had, discontinued said way, and, as appeared by their report, adjudged that no individual was damaged by reason of said discontinuance to an amount exceeding the advantages derived…

<p>On Report from Nisi Prius, Appleton, C. J., presiding.</p> <p>The facts sufficiently appear in the opinion of the Court.</p>

<p>On eacts agreed.</p> <p>Debt.</p> <p>This action was on a bond given by one Simpson as principal, and the defendant as surety, to procure the release of the former from ai’rest on mesne process on contract.</p> <p>'The certificate on the process, omitting the date and justice’s signature, was as follows : —</p> <p>"Personally appeared Daniel Sargent, 2d, one of the creditors named in the annexed writ, and made oath that he has reason to believe, and does believe, that John A. Simpson, of the clobtou.s named in said writ, is about to depart, and reside beyond the limits of this 8tato, with property or means of his own exceeding the amount required for his own immediate support; and that the demand in the writ, or the principal part thereof,, amounting at least to ten dollars, is due to the plaintiff. Before me,” &c.</p> <p>The certificate need not contain the affirmation that the person to be arrested is to "talce with him, property,” &c. French v. McAllister, 20 Maine, 465. This is an authoritative construction of the Act of 1835, c. 195, § 3, which is the same in its terms, so far as this point is concerned, as R. S., c. 113, § 2.</p> <p>Bramhall v. Seavey, 28 Maine, 45, contains a dictum of Judge Shepley which conflicts with French v. McAllister. The point was not raised in the former, but was in the latter.</p>

On Exceptions to the ruling of Kent, J., at Nisi Prius, discharging the alleged trustee on the following disclosure : At the time of the service of the writ upon me in this action, I had not, in my individual capacity, any goods, effects or credits of the defendant corporation deposited with me.