Volume 53 — Maine Reports

On Report from Nisi Prius, Appleton, C. Writ op Entry. The plaintiff put in a deed from one J. W. Jordan to the plaintiff’s intestate, covering the premises mentioned in the writ, dated March 31, 1858. The defendant put in a levy duly made upon said premises since said deed was given and before this suit was commenced, as the property of said Jordan.

<p>On Exceptions from Nisi Frius, Appleton, C. J., presiding.</p> <p>The facts fully appear in the opinion.</p> <p>submitted an elaborate brief, and contended, among other things, that—</p> <p>The alteration was immaterial, because, without it, upon the face of the note, it appears that Wm. L. Eastman is bound jointly with his co-partner.</p> <p>If the addition was a material alteration, the payee had the implied consent of Wm. L. Eastman to make it.</p> <p>The individual signature of one partner, made on partnership account, is the signature of himself and all of his co-partners, as the signature of an agent on account of his principal, and, in pursuance of his delegated authority, is the signature of the principal.</p> <p>Each partner, dealing for the firm, acts for himself and as agent for his co-partncrs. 1 Parsons on Contracts, 163; 3 Kent’s Com., 41; 8. F. Manufacturing (Jo. v. Goddard, 14 How., 455; Beckham v. Brake & als., 9 Meeson & Welsby, 79.</p> <p>An agency is disclosed on the face of the note. W. L. Eastman undertakes to bind another person jointly with himself.</p> <p>The intention of the parties was to bind the signer jointly with his partner; because, neither W. L. Eastman nor any other agent can, by his own signature, bind another person jointly with himself, unless he also sustain the relation of partner to such person.</p> <p>The words, "we, or either of us,” mean I and my partner. It was not necessary that Enos Eastman be named by his name on the face of the note. It was enough if W. L. Eastman described the person bound with him, as his partner. Id certum est quod certum reddi potest. Story on Promissory Notes, § 73.</p> <p>Upon its face, the note is incomplete to bind any body but the signer, because of the omission of the name of the person intended to be bound; and the consent of the signer, that the omitted name may be supplied in order that the intention of the parties, as expressed on the face of the note, shall not be defeated, is implied.</p> <p>An alteration, though in a material part, will not vitiate the instrument, if made to correct a mistake and in furtherance of the original intention of the parties. Byles on Bills, 389; 2 Parsons on Bills, 554, and cases there cited.</p>

<p>On Exceptions from Nisi Prius, Appleton, C. J., presiding.</p> <p>Assumpsit on the following memorandum : —</p> <p>"Bangor, Sept. 2, 1858. — This is to certify, that I will let T. J. Yantassel have the house he built and formerly occupied, any time, by his paying me within $100 what it cost me.” (Signed) "J. Hathaway.”</p> <p>The writ was dated May 1, 1863.</p> <p>It was admitted that the premises were conveyed by the plaintiff to J. Hathaway, May 21, 1857, who thereupon took possession of the same, and that said Hathaway died in May, 1860.</p> <p>The plaintiff introduced the foregoing paper; a copy of the last will and testament of the defendant’s testator, in which the testator had devised the premises to the defendant and appointed him executor; and a copy of a quitclaim deed, dated Dec. 18, 1861, from the defendant, in his individual capacity, to one Abby Hathaway, conveying the same premises.</p> <p>Charles Jennings, called by the plaintiff, testified — that he knew the lot on which plaintiff built the house in question ; lot was 148 feet on Pond street, and 100 feet on Hayward street; knew J. Hathaway in his lifetime; plaintiff lived in the house; moved out and J. Hathaway moved in and occupied the same until his death; worth $1800. J. Hathaway told witness he had let plaintiff have $700 and taken a deed of the premises, and would give plaintiff in $100, if he paid it back.</p> <p>David Boynton, called by plaintiff, testified — he worked for plaintiff in finishing the house ; well built; worth $1800 when plaintiff left it. Worked for Hathaway afterwards; put on L ; house all finished.</p> <p>George W, Maxim,, called by plaintiff, testified — he had worked at building houses many years, helped finish house in question; worth $1800 to $2000.</p> <p>On the foregoing testimony, the presiding Judge, ou motion of defendant’s counsel, ordered a nonsuit, to which the plaintiff excepted.</p>

On Report from Nisi Prius, Appleton, C. J., presiding. Assumpsit for an alleged breach of contract. The plaintiff put into the case several letters, the substance of which appear in the opinion of the Court.

<p>On Report from Nisi Prius, Appleton, C. J., presiding.</p> <p>Assumpsit for money had and received.</p> <p>This case has been before the Court once before.</p> <p>The facts sufficiently appear in the opinion of the Court.</p> <p>The case was taken from the jury and continued on report, for the Court to render judgment on nonsuit or default, according to the legal rights of the parties ; the Court to draw any inferences of fact which a jury might..</p>

<p>ON Exceptions from Nisi Prizes, Appleton, C. J., presiding.</p> <p>Assumpsit for supplies furnished under the pauper Act.</p> <p>It was admitted that the settlement of the pauper was formerly in the defendant town, and that it so continued unless he obtained a new one in the plaintiff town, by having his home there five successive years without receiving, directly or indirectly, supplies as a pauper.</p> <p>It was also admitted that he obtained a new settlement in the plaintiff town, unless the five years’ residence was broken by certain alleged supplies furnished in the meantime.</p> <p>Due notice and answer were admitted. No question was made as to the destitute circumstances of the pauper’s family, or as to the kind or amount of supplies furnished.</p> <p>It appeared that the town of Yeazie kept articles necessary for the relief of persons destitute, and furnished the alleged paupers principally from these, charging them in the books kept for that purpose.</p> <p>It also appeared that the father of the family paid for supplies first furnished, on his return from the woods where he was at work when they were furnished.</p> <p>There was testimony, introduced by the defendants, tending to show that the first necessaries were furnished and received, to be paid for soon after, and not to be considered as pauper supplies. And there was testimony, introduced by the plaintiffs, that no agreement was made by the overseers to furnish the supplies as a loan.</p> <p>The counsel for the plaintiffs asked that the following instruction be given, to wit: —</p> <p>"If Mrs. Babcock received, from the overseers, supplies furnished by the town, under an understanding that, if paid for soon, the charge to them should be stricken from the town books and not be considered a charge, otherwise should be a charge, that such furnishing would break the continuity, if she was in distress and in need of relief from the town.”</p> <p>This, the Judge refused to give as a matter of law, but submitted it as a question for the jury to decide (without any direction or intimation from the Court) whether such furnishing was directly or indirectly furnishing supplies to her as a pauper, within the sense of the statute.</p> <p>Verdict for defendants.</p>

<p>In assumpsit, by a holder against an indorser of a negotiable promissory note, what circumstances will amount to a waiver of demand and notice.</p>

On Report from Nisi Prius, Appleton, C. J., presiding. Assumpsit for supplies.occasionally furnished to paupers having their settlement in the defendant town. Writ dated Feb. 24, 1859. The supplies commenced May 1, 1857, and were occasionally furnished until Feb. 8, 1859. Notice dated June 22, 1857, answer June 27, 1857.

<p>On Report from Nisi Prius, Appleton, C. J., presiding.</p> <p>Assumpsit for supplies furnished paupers having a settlement in the defendant town.</p> <p>This is a second action between the same parties for supplies furnished the same paupers.</p> <p>The writ is dated Dec. 2, 1862.</p> <p>The items charged are of the following dates, viz.: March, May and Nov., 1860, and Nov., 1861, and Nov. 20, 1862.</p> <p>Notices proved bore the following dates : April 6, 1860, Dec. 14, 1859, Feb. 24, 1859.</p> <p>The plaintiffs proved that they commenced an action against the defendants, Feb. 24,1859, for the support of the same paupers from May, 1857, to Feb. 8, 1859, which was duly entered and continued to the present term, when it was referred to the Court, who gave judgment for the plaintiffs for sum sued for; that the case was carried up, on report by the defendants, to settle the law; that the plaintiffs proved notices in that case of the following dates, which notices were by agreement to be considered as in proof in this case, viz.: June 25, 1857, Feb. 3, 1858, March 30, 1858, and Dec. 15, 1858.</p> <p>That, on June 27, 1857, the defendant town answered the plaintiffs’ notice of June 25, 1857, denying their liability,, and contested the question of sttlement in the former action.</p> <p>It was admitted that there were no supplies furnished from Feb. 8, 1859, — last item in former writ, — until March, 1860, — first item in the writ in this action.</p> <p>The case was then continued on report, with the agreement that if upon the foregoing facts the action cannot be maintained for want of notice, plaintiffs were to become nonsuit, otherwise, the action to stand for trial.</p> <p>Writ is dated, in this case, Dec. 2, 1862. The statute of limitations, where no answer was made, would be two years three months and sixty days. At all eveuts, the four last items in the account are within the limitations. And these are supplies furnished Melvin, (Melvin Brawn.)</p> <p>The notices given before the first suit are sufficient notice for the subsequent suit, the first call not having been responded to by payment; or by a removal; or settled by a judicial decision. Augusta v. Vienna, 21 Maine, 298.</p> <p>There are two cases in Massachusetts which militate against this position. 4 Pick.,358; 14 Mass., 188.</p> <p>But there may be this distinction between those cases and this case. Prom an examination of those cases, it is not clear that in the original actions the pauper’s settlement was contested.</p> <p>The reason given in the book discussions for the necessity of a notice would not seem to apply in this case. Because the defendant town may provide for the bill or remove the pauper. But what need of a notice to them for that purpose, when they have already refused to do either, and for the reason that they deny the settlement of the pauper in their town, and that question is in progress of contestation.</p> <p>But the case at bar differs from the cases alluded to in another respect, which answers the objection upon which those cases were decided. It is said that the new notice was necessary, because the town would not know whether the pauper continued to be supplied after the suit was commenced. But here there is a subsequent as well as a prior notice. Here was notice in 1859 and in 1860. There was no need of continuing notices. The ones of 1859 and 1860, coupled with notices prior to the first suit, were all sufficient for all purposes till the question was settled.</p> <p>The plaintiffs, therefore, having made out notice, they can recover so much of their bill as comes at least within throe months and two years before date of writ.</p>

ON Exceptions from Nisi Prius, Appleton, C. J., presiding. Writ op Entry, Tlie action was referred to John Appleton, by rule of Court, with right to except. The referee made the following special report: — I find that the title to the demanded premises was in Charles I). Gilmore and Calvin II.

On Exceptions from Nisi Prius, Kent, J., presiding. Assumpsit. The action was before this Court in 1863. Vide 51 Maine, 509. The writ contained a count upon the contract, and also a quantum meruit. Since the former trial, the plaintiff amended his count upon the contract, in accordance with the opinion of the Court, as reported above.

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

Ox Krpokt from Nisi Prius, Cutting, J., presiding. Assumpsit for supplies furnished mother and children. The facts appear in the opinion. If the woman was not legally married in the second attempt, then she gained a settlement in her own right by five years residence in Howland.

On Exceptions from JSfisi Prius, Kent, J., presiding. Assumpsit for supplies furnished a pauper of the defendant town by an inhabitant thereof. The alleged pauper was a grandchild of the plaintiff, about four years of age, residing with him. The pauper’s father was dead, and the plaintiff hired the pauper to be kept by the pauper’s mother, who was remarried and lived in another place. A portion of the sum sued for included the expense paid the mother.

<p>On Exceptions from ETisrPrius, Appleton, C. J., presiding.</p> <p>Db?t.</p> <p>The case was referred, under the statute, to the presiding Judge, with right to except.</p> <p>The presiding Judge admitted evidence of the insolvency of the principal and rendered judgment for nominal damages, and plaintiff excepted.</p> <p>The facts appear in the opinion.</p>

Ok Report from Nisi Prius, AppletoN, C. J., presiding. Assumpsit, to recover back, excess of money tendered on a mortgage debt more than was due. ' • The plaintiff offered to prove that, on August 10, 1856, plaintiff Bragg took a deed of an undivided parcel of real, estate from Waldo T. Pierce, and gave back his mortgage to secure two notes, one for $586, on 15 months; and one for $600, on 27 months, payable to said Pierce or order, and dated April 10, 1856 ; that Pierce…

ON Report from JTisi JPrius, Appleton, C. J., presiding. Writ op Entry. This action was brought to recover a store and lot in Bangor. Writ was dated March 2, 1864. The general issue was pleaded with brief statement, that if judgment shall be rendered for the plaintiff it should be as of mortgage only.

<p>Where the premises in a deed were described as the “ north half of the double dwellinghouse, situate,” &e., “together with the land under the same, and the land used with it and belonging thereto, and all out buildings and fences thereon and thereto belonging, being the same premises heretofore occupied by me as a dwellinghouse; and there was a barn connected with the house, which had previously been occupied by the grantor; Held, —</p> <p>1. That the words “belonging thereto ” refer to the house and not to the grantor.</p> <p>2. That the words “ out buildings thereon,” mean the otit buildings on “ the land used with” the house;</p> <p>3. That the barn was one of the out buildings ; and</p> <p>4. That the deed conveyed the barn and the land on which it stood.</p>

<p>On Report from Nisi Frius, Danporth, J., presiding.</p> <p>Assumpsit for bounty voted by the defendants.</p> <p>The writ was dated Dec. 5, 1863.</p> <p>The action was for the sum of twenty dollars, and for a town order of eighty dollars, payable in two years, which the plaintiff claimed as a drafted militia man for the defendant town, under the order of the President of the United States, calling for 300,000 men for the military service.</p> <p>The return of the constable on the back of the warrant calling the town meeting, at which the vote authorizing the payment of the amount sued for was passed, showed, that it was posted only six days before the time of said meeting.</p> <p>Several questions were raised; but whether or not c. 170, § 1, of the Public Laws of 1863, legalized the doings of towns at meetings not notified in accordance with the general statute, being the only question decided*, a report of the other questions is rendered unnecessary.</p>

ON EXCEPTIONS from JSfisi Prius, Dickerson, J., pre- . siding. Petition por Writ op Prohibition.

On Exceptions from Nisi Prius, Danforth, J., presid ing. Debt on a collector’s bond. Plea non est factum. The main facts sufficiently appear in the opinion. The verdict was for the defendants, and the plaintiffs ex cepted.

ON Motion from Nisi Prius, DaNFOBTu, J., presiding. Teesbass quare clausum fregit. The verdict was for the defendant, which the plaintiff moved to set aside as being manifestly against the weight of evidence. The facts appear in the opinion.

On Exceptions from Hisi Prius, Davis, J., presiding. Assumpsit. The presiding Judge ruled a former judgment between the parties, put into this case, conclusive, and the defendant Swanton, having denied that he was a member of the firm, under the rule, excepted. The remaining facts appear in the opinion. The exception of the defendant is to the ruling that the former judgment was conclusive as to the existence of the partnership on the 14th day of May, 1856.

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

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

ON Exceptions from Nisi Prius, Davis, J., presiding. Assumpsit on a policy of insurance against fire, dated Oct. 5, 1862.

<p>„ Bill IN Equity.</p> <p>The case was heard on demurrer.</p> <p>The allegations of the bill and demurrer sufficiently appear in the opinion.</p> <p>contended that —</p> <p>The bill cannot be maintained for want of proper parties, and demurrer is the proper mode of taking advantage of the defect. Story’s Equity Plead., §§ 541 — 543; Fuller v. Benjamin, 23 Maine, 255 ; White v. Curtis, 2 Gray, 467 — 472'.</p> <p>The bill exhibits the names of several persons who should have been made defendants; and it is no excuse that they are out of the State.</p> <p>That the Court will not proceed to a decree, until all whose rights are to be affected by it, are before the Court, is the general rule. Evans v. Qhism, 18 Maine, 222, 223; Story’s Equity Plead., §§ 77, 81, 82, 83, 162, 166, 218.</p> <p>This bill sets out in legal effect a partnership; and, whether anything is due to the plaintiff cannot be ascertained until a settlement. To that settlement all must be parties. The interests of all are involved.</p> <p>If some of the plaintiff’s associates are beyond the jurisdiction of the Court, that is his misfortune, resulting from his voluntary act of association. The rules of law cannot be safely strained to cover every case of misfortune.</p> <p>This case is, in its facts and circumstances, identical with the case of Fuller v. Benjamin, 23 Maine, 255.</p>

ON Report' from ISfisi Prius, Barrows, J., presiding. Assumpsit on a policy of insurance against the perils of the sea. One of the conditions in the policy was as follows : — No holder of a policy shall be entitled to maintain any action thereon against the company, until he shall have offered to submit his claim to reference.

On Exceptions from Nisi Prius, Davis, J., presiding. Complaint for Larceny. The facts appear in the opinion. The defendant excepted to the ruling of the presiding Judge.

<p>On Exceptions from JVisi Prius, Barrows, J., presiding.</p> <p>Indictment.</p> <p>The facts sufficiently appear in the opinion.</p>

<p>By B,. S., c. 143, § 20, no person shall suffer any of the disabilities incident to pauperism, nor be thereafter deemed a pauper, by reason of being supported in the insane hospital.</p> <p>By R. S., c. 24, § 25, a recovery against a town, for supplies furnished to a pauper, estops such town from disputing the settlement of the pauper with the town recovering, in any future action brought for the support of the same pauper.</p> <p>In an action by one town against another for supplies furnished a pauper, whose settlement is alleged to be in the defendant town, the plaintiffs are estopped by the record of a default in a former suit by the plaintiff against the defendant town, containing a count for the expenses of commitment and support of the. alleged pauper at the insane hospital, and also a count in common form for supplies to the same pauper.</p>

On Exceptions from JJisi JPrius, Walton, J., presiding. Assumpsit for money had and received.

On Exceptions from Nisi Prius, Walton, J., presiding. Assumpsit on two promissory notes, brought by the plaintiffs, as indorsees, against the defendants, as makers thereof. The facts sufficiently appear in the opinion.

<p>Bill in Equity.</p> <p>The case was beard on demurrer.</p> <p>The bill substantially alleges that the complainant, on Dec. 11, 1855, was lawfully married to James Fogg, with whom she lived until June 5, 1858, when said Fogg died; that during her coverture with said Fogg, two several parcels of land adjoining each other, situated in Lewiston, were conveyed to him, to wit, — one parcel (described) by one Nesmith, by his deed of warranty, dated June 23, 1857, duly acknowledged and recorded; the other parcel (described) by said Nesmith and one Wheelock, by their deed of warranty, of same date, duly acknowledged and recorded; that, on the same day, the said Fogg, by his deed of that date, duly acknowledged and recorded, mortgaged both of said parcels of land to said Nesmith, to secure §925 of the purchase money; that the complainant did not sign said mortgage or otherwise relinquish her right of dower in said premises; that said Fogg entered upon said premises and remained in possession thereof till his death; that he built a dwellinghousc and made other great improvements thereon, at his own expense, and with money mostly furnished by the complainant; that the amount of money furnished by her was § L000; and that thereby the value of said premises was greatly enhanced, by means of all which she became dowable in said parcels of land and improvements.</p> <p>The bill further alleges, that, on April 22, 1858, said Fogg mortgaged the parcels of land first mentioned to David M. Ayer, one of the respondents, to secure the sum of $200 and interest; that the complainant did not sign the latter mortgage nor otherwise relinquish her right of dower in the premises therein mentioned; that, on November 4, 1862, said Nesmith assigned the former mortgage to said Ayer; that, on June 7, 1859, Abiel Jones, administrator of the estate of said Fogg, sold and conveyed by virtue of a license from the Judge of Probate, to said Ayer, all the right, title and interest in and to the whole of said premises which said Fogg had at the time' of his decease; that neither of said mortgages have been foreclosed; that, on Nov. 6, 1862, said Ayer, by his deed of warranty, duly acknowledged and recorded, conveyed to Jonathan P. Norton, the other respondent, a portion of said premises, (described,) which portion the said Norton has ever since held under his said deed; and that the residue of said mortgaged premises has, from the date of said administrator’s deed to the present time, been held by said Ayer under the mortgages and déeds to him before mentioned.</p> <p>The bill further alleges, that, on Feb. 8, 1864, the complainant made demands, verbally and in writing, for her dower in said premises, so held by said respondents, to wit, of said Ayer her dower and just third part of all said lands, except so much thereof as the said Ayer had, by his deed aforesaid, conveyed to said Norton, — of the said Norton, her dower, &c.', of so much of said lands as was conveyed by said Ayer to said Norton, but that the said Ayer and Norton both refused and neglected and still refuse and neglect to set out the same, although the complainant is now, and ever has been, since the death of said Fogg, ready to contribute, if necessary, the whole or her just proportion of the debt secured by the'first mentioned mortgage, to redeem the same, and to be let in for her just dower in said lands.</p> <p>The bill prays that the respondents may answer, and that the Court will determine and decree upon what terms, if any, the complainant shall be let in for her said dower, and offering to pay such sum towards the redemption of the first mortgage as the Court shall deem just; that her dower may he set out by said respondents; and that damages may be awarded to her for detention, &c.</p> <p>The respondents demurred specially, assigning, among other causes, the following : — that the bill contained no allegation of any demand for an account of the sum due on the Nesmith mortgage, or of the rents and profits of said estate, or of the repairs, &c., thereon; that it contained no allegation of any unreasonable neglect or refusal to render such account in writing, or any default of either of the defendants which prevented the complainant from performing or tendering performance of the condition of said mortgage.</p>

<p>On an issue joined of mil fiel record, a judgment in favor of Thomas Farrow vrill not support a declaration in debt on a judgment in favor of Thomas Farrar.</p> <p>It seems that such misprision may be avoided by an averment that the plaintiff, by the name of Thomas Farrow, recovered sueli judgment.</p>

<p>On Exceptions from Nisi Prius, Walton, J., presiding.</p> <p>Trover.</p> <p>The facts 'appear in the opinion.</p>

ON Motion and Exceptions from JSfisi Prius, Walton, J., presiding. Petition for partition. The respondent offered to prove that the petitioner, in consideration that the mortgager, the respondent’s grantor, had paid the money received from the respondent for the land mortgaged to the petitioner, the latter agreed to discharge the mortgage, and the presiding Judge admitted the testimony, against the objection of the petitioner.

<p>When a negotiable promissory note bears upon its back the names of the payee and another person, — the former above the latter, — the presumption is, in the absence of all controlling proof, that the payee indorsed it to the one whose name is under his, and the latter to some third party.</p> <p>The contract implied, from one’s placing his name in blank upon the back of a negotiable promissory note, is not a written contract so far complete in itself as to exclude parol evidence to show his connection with such note.</p> <p>As between the original parties to such contract, or those having their rights, parol evidence is admissible to prove the circumstances which will determine its character. '</p> <p>When a judgment has been rendered against a person upon the verdict of a jury finding him to be an original promisor of the note in that suit instead of an indorser, as he alleged himself to be in his specifications of defence, he is estopped to deny that relation in any litigation with any other party to the note.</p> <p>If the grounds of a judgment appear by the record, they must be proved by the record alone.</p> <p>But, if the record need not and does not exhibit the grounds upon which the judgment proceeded, it may be shown, by parol evidence, that matters which might have been admissible under the pleadings were presented and considered in the adjudication.</p> <p>A brief statement, when made with sufficient precision, becomes to all intents and purposes a substitute for the special plea.</p> <p>Tinder a count for money had and received and money paid, a note bearing on its back the defendant’s name would be admissible under the general issue.</p> <p>And if the jury should find the defendant signed as original promisor instead of indorser, such finding would not be repugnant to the issue.</p>

ON Report from Nisi Prius, Walton, J., presiding. Forcible Entry and Detainer. At the trial, at Nisi Prius, the complainant proved title in himself by deed and rested his case. Hereupon the respondent contended that the complaint could not be sustained ; but the presiding Judge ruled that, under the pleadings, it might be.

On Exceptions from Nisi Prius, Walton, J., presiding. Trespass quare clausum fregit. The defendant justified under an alleged right of way. The plaintiff denied that defendant had such right of way over his land, and further contended that, if the defendant had a right of way over his land, he was nevertheless a trespasser, because he had deviated from the track usually taken by him, and passed over other lands of the plaintiff.

On Report from JSTisi Prius, Walton J., presiding. Case. The writ contained three counts; the second count was for money had and received ; and the first, being similar to the third, was as follows : — Eor that whereas, according to the law and custom of the land, the innkeepers, that keep common inns to lodge and to entertain as guests, travellers, strangers and others therein who abide in the same, are bound to keep their goods and chattels, being within those inns, day…

<p>In assumpsit for balance for -wagons alleged to have been sold to the defendant, the plaintiff may testify that he intended to give credit to the defendant-when he parted with the wagons, although he charged them on his book to the defendant’s son.</p> <p>When the testimony, as reported, does not necessarily establish the position that the jury erred in their verdict, or acted under any undue influence, bias, prejudice or partiality, it will not be set aside as being against evidence.</p>

Writ op Error. The error assigned was that the original action was illegally brought in the name of the defendants in error, they having no interest in the claim sued, except as assignees under the statute, of Rufus K. Page, and that there is no consideration or promise to pay them, set out in the declaration.

<p>ON Report from Nisi Prius, Danforth, J., presiding.</p> <p>Assumpsit on account annexed.</p> <p>The facts sufficiently appear in the opinion.</p>

<p>By the 23d Rule of Court, neither party shall he required, during term time, to attend the taking- of a deposition, except in the town in which the Court is holden, and at an hour when the Court is not actually in session, unless the Court, upon good cause shown, shall specially order the deposition to be taken.</p> <p>“ During term, time” does not cower all the time from the commencement to the final rising of the Court, without regard to the length of intervening adjournments.</p> <p>Where the Court adjourned on the 22d to the 29th of a certain month, and the plaintiff’s attorney gave legal notice of his intention to take a deposition, on the 26th of the same month, in the town where the defendant’s attorney resided;— Held, that the deposition was not taken “during term time,” within the meaning of the 23d Rule, and was therefore admissible.</p> <p>In an action of replevin for a colt, brought by an executor, the plaintiff will not be permitted to prove the declarations of his testator, made while the colt remained on his premises, with his other stock, tending to show that he claimed to own the colt, to rebut testimony offered by the defendant, tending to show a previous gift by the testator to his son who lived with him and of whom defendant had purchased the colt.</p>

<p>The allowance to a widow is to he determined by the law of the domicil of her husband.</p> <p>By R. S., c. 63, § 24, the Supreme Court of Probate may reverse or affirm, in whole or in part, the sentence or act appealed from, pass such decree thereon as the Judge of Probate ought to have passed, remit the case to the Probate Court for further proceedings, or take any order therein that law and justice require.</p> <p>An appeal from a decree of the Probate Court, fixing the amount of allowance to a widow, vacates the judgment appealed from; and the whole subject matter of the appeal is, without any statute restriction, open to the . appellee in the Supreme Court of Probate.</p> <p>Hence, where one of the heirs of a deceased person appealed from a decree of an allowance to the widow, for the reason that it was “ excessive, unreasonable and not necessary, according to the degree' and estate of her husband and the state' of the family under her care;” — Held, that the Supreme Court of Probate might increase the amount decreed below, if, in its opinion, law and justice require it.</p> <p>The circumstances to be considered in fixing the amount of an allowance.</p>

On facts agreed. This was case, in which the plaintiff alleges that the water from the springs and brooks upon and over his land, from the time whereof the memory of man runneth not to the contrary, in its natural course and channel, was wont to run in a north-westerly direction from the plaintiff’s land on to land north of and adjoining the plaintiff’s lot, and thence over and across said adjoining lot into Chandler’s pond; yet the defendants, not ignorant of the premises,…

<p>By Ií. S., c. 71, § 30, if tlie validity of a sale of real estate by license from a Probate Court is contested by one claiming adversely to the title of the 'irife, ward, or deceased aforesaid, or by a title not derived through either, the sale shall not be held void on account of any irregularity in the proceedings, if it appears that the license was granted by a court of competent jurisdiction, and the deed was duly executed and recorded.</p> <p>The mere fact that lands sold for a very small sum compared with their intrinsic value, is not conclusive evidence of fraud.</p>

Assumpsit on a promissory note given to the plaintiff for his personal labor in the defendant’s saw mill. Defence,— statute of limitations. The plaintiff was proved to have been deaf and dumb from infancy. He was able to labor, but no evidence was offered to prove that he possessed sufficient intelligence to know and comprehend his legal rights and liabilities.

<p>Bill in Equity.</p> <p>The case was heard on bill and answer.</p> <p>The facts sufficiently appear in the opinion.</p> <p>The case was submitted without argument.</p>

<p>Where an agent of the plaintiif, to sell a vessel, paid the proceeds to the defendant, for the use of the plaintiif, the former cannot resist the claim of the latter on the ground that he did not own the vessel, which he authorized his agent to convey.</p>

On Report from Nisi Prius, Cutting, J., presiding. Replevin of hay and other property.

On Exceptions from Nisi Prius, Davis, J., presiding. The person appointed master in these cases had been previously appointed a general master in chancery by the full Court, uuder Act of 1862, c. 155, and the additional rule in chancery.” The remaining material facts will be found in the opinion. I. The master’s report should state what notice was given and when, that the Court might judge whether it were reasonable” or not.

<p>A mutual insurance company has no right to assess a premium noto for losses occurring after the cancellation of the policy, or for anticipated losses arising from a supposed failure of others to contribute their proportion of losses occurring after such cancellation.</p>

ON Exceptions, to the rulings of Davis, J. Petition for Partition of certain flats in the city of Portland. Issues were framed and submitted to the jury, whose verdict was for the respondents. The petitioners excepted to certain instructions of the presiding Judge, and to the admission of certain testimony. The case, so far as relates to the various questions of law raised, is stated in the opinion.

ON EXCEPTIONS to the rulings of Davis , J. PetitioN por Paetition of certain flats in the city of Portland, consisting of the flats fronting the three parcels of land described as conveyed by separate deeds of Thomas Brackett to Joshua Brackett, to Keziah Brackett and to Mary Smith, in 1787. The petitioners put in evidence a copy of an assignment of widow’s dower, and of a deed of Thomas Brackett to Win.

On Report from Hist Prius, Barrows, J., presiding. Debt on a bond, dated Eeb. 21, 1862, given by the defendant alone to the plaintiffs, of the condition of which the following is a copy : — The condition’ of this obligation is such, that whereas the said George W. Parker has been appointed collector of taxes of said town, for the year eighteen hundred and fifty-six, now if the said Parker shall well and faithfully discharge all the duties of said office, then this obligation…

Exceptions from the ruling of Kent, J. Assumpsit for rent under a lease by the plaintiffs, as lessors, against the defendant, an alleged assignee of one ICil-born, who was the lessee. The action was referred, by rule of Court, to J. H. Drummond, Esq., at the April term, 1864, who made his report to the October term, 1864.

Bill in Equity, filed by Ira C. Kimball, executor and trustee, named in the last will and testament of Ira Crocker, to determine the construction, validity and effect of the following articles in the will: — Third.' — I give and bequeath the sum of forty thousand, dollars, to Samuel Small, jr., and Ira C. Kimball, and the survivor of them, in trust, upon and for the trusts, intents and purposes, and subject to the powers and provisions hereinafter mentioned and expressed of…

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

ON Exceptions from Nisi Prius, DickersoN, J., pre-Slums'. INDICTMENT LOB ASSAULT AND BATTERY. Tho defendant was a conductor on the Grand Trunk Railroad, and, while acting in that capacity, forcibly expelled a passenger from the train, which was the assault complained of.

<p>A bond perfect upon its face, apparently duly executed by all -whose names appear therein, purporting- to be signed, sealed and delivered by the several obligors, and actually delivered by the principal without stipulation, reservation, or condition, cannot be avoided by the sureties upopt the ground that they signed it on the condition that it should not be delivered unless it should be executed by other persons, who did not execute it, when it appears that the obligee had no notice of such condition, and nothing to put him upon inquiry as to the manner of its execution, and also that he has been induced upon the faith of such bond to act to his own prejudice.</p>

ON Agreed Statement. Assumpsit against the defendant, the indorser of a bill of exchange for thirty-one pounds sterling, drawn by Gomes & Eilhos, at Rio Janeiro, on the Union Bank of London, 2 Princes street, Mansion House,' London, payable to the order of the defendant, and indorsed by him to the plaintiffs. The only questions raised were in relation to the form of the notices and the damages. The following is a copy of the bill: — No. 3543.

On Report by Barrows, J., presiding. Assumpsit for money had and received. The facts, so far as they affect the decision of the case, are stated in the opinion. The discharge of the official bond does not affect this case. The defendant’s counsel barely suggests the point. He does not rely on it. But the report of the committee to the Legislature expressly negatives the settlement of this claim. That report is a public document of which the Court will take judicial notice.

Bill IN Equity. The bill alleges that, before March 17, 1860, the Andros-coggin Railroad Co. had constructed and operated their road from Farmington, in Franklin county, to Leeds, in Andros-coggin county; that, on said 17th March, said company had been authorized by an Act of the Legislature to extend its road from Leeds to Brunswick; that said company were deeply in debt, bad mortgaged all tbeir property, and were wholly unable, of their own means, to construct the proposed…

<p>On Report from Nisi Prius, Walton, J., presiding.</p> <p>Petition for the appointment of commissioners to "ascertain and determine” the boundary line between Lisbon and Bowdoin near the " Hall bridge,” so called. The petition was dated April, 1864,, and signed by the selectmen of Lisbon.</p> <p>The respondents put in copy of a petition entered at the August term, 1862, of S. J. Court for Sagadahoc county, together with the proceedings thereon, including the report of the commissioners appointed under the latter petition. So much of that report as is material to this case was as follow's : — "The undersigned, commissioners, appointed,” &c., "having notified and met the parties,” &c., "do award and determine that the following described line shall be the true boundary line between the towns of Bowdoin and Lisbon.” Then follows a line described by monuments, courses and distances.</p>

The defendant was indicted, tried and convicted of murder in the first degree, at the October term, 1863, Walton, J., presiding. The ease came before this Court on exceptions which appear in the opinion.

<p>If a judgment is conclusive in the State in which it is rendered, it is equally conclusive in every. State of the Union.</p> <p>Whenever a cause of action has passed into a judgment, it is merged so long as the judgment remains in full force and not reversed.</p> <p>Hence, where the indorsee of a witnessed promissory note, given in Maine, sued the present defendant as maker in Massachusetts, — whither the latter had removed; and the defendant, after pleading payment and the statute of limitations, obtained a general verdict in his favor; and subsequently the present plaintiff, as payee, brought this action against the defendant, — he having previously removed back to Maine; — Held,</p> <p>1. That the action could not be maintained; and</p> <p>2. That evidence that the statute of limitations was the only issue tried in the former action was inadmissible.</p>

On Report from JSFisi Prius, Barrows, J., presiding. Assumpsit. The writ, dated April 1, 1862, contained a count on the note hereinafter mentioned, together with a count for money had and received. Plea, general issue and statute of limitations. The following is a copy of the note declared on. Carthage, March the 20th, 1834.

ON Exceptions from JSTisi Prius, Cutting-, J., presiding. Bill in equity, to redeem mortgaged premises. The complainant claimed as grantee of the original mortgager, and the respondent as the assignee of the mortgagee. The bill was filed at the March term, 1864. At the December term, 1864, the bill was taken pro con-fesso, and Alvah Black, Esq., was appointed master to ascertain and report the account between the parties.

ON Exceptions to ruling of Walton, J. Petition for Review, to which the respondent demurred. The presiding Judge sustained the demurrer, and the petitioner excepted. The original case was referred. The petitioner alleged that his counsel attended the term of Court at which the report of the referee was accepted, but, it not having been presented during the first two days of the term, he left. It was afterwards presented and accepted.

On Exceptions from Nisi Prius, Appleton, C. J., presiding. Trespass quare. clausum. The case was referred to the presiding Judge with the right to except, who found as matters of fact as follows : — That neither party have acquired rights by open, adverse and exclusive possession for twenty years.

<p>Equity will not permit trust property to be reconveyed to one of several trustees, before his duties as trustee are ended, for the same considerations for which it was sold by them, except for the benefit of the cestid gue trust.</p> <p>Instructions to the master.</p>

<p>In a sale of personal property by parol, the title may vest in an undisclosed principal for -whom the apparent purchaser is negotiating as agent.</p> <p>In such case, the principal may vindicate his title as against the agent, although the seller of the property has no knowledge of the interest of the principal.</p> <p>If A negotiate for the purchase of personal property, and, at his request, B pays for it upon the agreement that he is to hold the property as his own, until he is repaid, and the property is delivered to them under this agreement, the title will vest in B,</p>

On Report by Appleton, C. J. Assumpsit for money had and received. The case was submitted to the Court upon substantially the same facts presented in Weston, Petitioner, dec. v. Dane, State Treasurer, 51 Maine,'461. Although the money was received and receipted for by the defendant, in his official capacity, it never went into the State Treasury.

On ExoeptioNS from JSTisi Prius, Cutting, J., presiding, Trovee for 1600 pine logs and 800 spruce logs. The plaintiffs claimed that the logs were cut by the defendant on the eastern part*of the north half of township No. 21, middle division, Hancock county. The defendant alleged that the cutting in question was not on township No. 21 but upon No. 22, which he owned.

ON ExoeptioNS from Nisi Prius, AppletoN, C. J., presiding. The facts appear in the opinion. 1. In giving the statement, the presiding Judge wholly omitted all the material circumstances outside of the express testimony of the witnesses. 2. It was the province of the jury to say what the evidence on the part of the parties respectively proved. Copeland v. Hall, 29 Maine, 93. 3. The Judge should not have stated the case.

<p>By R. S., e. 18, § 35, in casos of appeal from the decision of county commissioners on petitions for laying out, altering or discontinuing any highway, the Court may appoint a committee of three disinterested persons, &c.</p> <p>Where the land over which a road is laid by the county commissioners is owned by a railroad company, a stockholder in said company is not disinterested, and cannot be appointed on the committee.</p>

On Report from Nisi Prius, Cutting, J., presiding. Case for refusal of the selectmen of Bradford to draw an order for a bounty of $100 for the plaintiff, in pursuance of a vote passed at an alleged town meeting held Feb. 21, 1865. It was proved that the plaintiff was an inhabitant of the defendant town, was drafted and mustered into the U. S. service in March, 1865, credited to the quota of Bradford, and honorably discharged in May, 1865.

On Report from Nisi Prius, Cutting, J., presiding. The facts will be found in the opinion. Partial payments should be indorsed in order to have the effect of renewing the promise. Patlee v. Blood, 5 Pick., 54. The holder should not be left to elect afterwards whether he will apply the payment to the note or not. Haven v. Hathaway, 20 Maine, 345. Plaintiff had appropriated the collections from Day to the credit on account, and he cannot gainsay it.

On Report from Nisi Prius, Appleton, C. J., presiding. The memorandum is sufficient in form. O'Donnell v. Leeman, 43 Maine, 158; Gireenl. on Ev., vol. 1, § 269. Auctioneer agent of both parties. O'Donnell v. Leeman, supra. A memorandum commenced at the time and place of sale and extended afterwards on the books of the auctioneer is sufficient, if done as soon as practicable, and the latter is regarded as the original entry. Episcopal Church v. Seavey, Riley’s Ch., 156.

On Exceptions to the rulings of Cutting, J., This action was returnable April 1, 1865, before a trial justice in and for the county of Penobscot. The action was duly continued to Saturday, May 6, 1865, at 9 o’clock A. M., when the justice, on motion of defendant’s counsel, entered a nonsuit, the plaintiffs not appearing except by counsel.

<p>ON Exceptions from fflisi Prius, Kent, J., presiding.</p> <p>The guardian was appointed under clause 2, § 4, c. 67, B. S.</p> <p>The remaining facts appear in the opinion.</p> <p>Chapter 67, § 1, simply defines and regulates the jurisdiction of Judges of Probate in appointing guardians, limiting them to cases where wards, or their property, are in the counties for which they are the respective Judges. Section 9 gives guardians custody of their wards " resident in the State,” — "resident in the State” having reference to the ward. Same section humanely requires the guardian to " inculcate upon his ward habits of sobriety and industry, and may bind him out to labor or employ him in his own service.” These requirements demand personal presence and supervision of the guardian, and could never have been intended to be intrusted to a person beyond the jurisdiction of our Courts. Such guardian might carry his ward and property beyond the jurisdiction. R. S., c. 67, §§ 3, 9.</p> <p>The Probate Court is real guardian of the ward, guardian its agent. The statute places him entirely under control of the Court, liable at any time to be cited before it for any dereliction of duty or abuse of authority. This authority is of the highest kind. The bond relates only to property, while this conservative power of the Court over the guardian relates to the personal safety and welfare of the wai’d. Remedy on the bond is subject to the law’s delay; power of the Court over the guardian is immediate and available. This power is unavailable when guardian is out of the jurisdiction. By § 18, guardian shall settle his account when cited. If he refuses, he may be attached for contempt. He cannot be cited when out of the jurisdiction. The Court has no authority to thus voluntarily divest itself of such necessary practical power.</p> <p>Such an appointment robs the ward of the most impoi’tant provision in the statute, viz., § 25 provides that when a guardian embezzles or converts his ward’s property, he shall be fined not " exceeding §5000 or confinement to hard labor for a term not exceeding ten years, or both.” Guardian may take ward and property out of the State' and embezzle with impunity.</p> <p>The whole scope and spirit of the statute accords with the humanity of the subject, and contemplates that the guardian shall be within the control of the Court.</p>

Bill in Equity. The facts appear in the opinion. The bill presents the different parcels as somewhat different in principle, but it is believed they are all substantially the same in fact and without the pale of equity. 1. Tavern stand. — This part of the case presents facts exactly similar to those in Fisher v. Shaw, 42 Maine, 82. The arrangement between the parties was one for the purchase and sale of real estate by parol and is therefore void. 2.

On Report from Nisi Prius, Appleton, C. J., presiding. The facts sufficiently appear in the opinion. Two facts must appear to charge the drawer in this case, viz., presentment at proper time and place, demand and refusal ; and that notice of the same was sent by the next post to the drawer. Language of the notice must cover these facts, as that the bill had been protested.

<p>An attachment of real estate may be dissolved by an attaching creditor otherwise than is provided in c. 62, of the Public Laws of 1859.</p> <p>A & B severally attached C’s real estate, — one on Sept. 1, and the other Sept. 5, 1860. In Nov. following, prior to any levy, A, for a valuable consideration, executed and delivered'to B a release of his attachment “ so far that B shall at all times take precedence in any levy he may make on said real estate. B extended his execution on the premises, June, 1861, and subsequently conveyed by deed of quitclaim his “ right,” Sea., to the plaintiffs’ ancestor. A extended his execution June, 1863, and subsequently conveyed by deed of quitclaim, reciting the release, to the defendants’ grantor. In ' ejectment: —Held, that the release was valid, and that B’s levy took precedence.</p>

<p>ON Report from Nisi Prius, Barrows, J., presiding.</p> <p>The facts appear in the opinion.</p>

ON PACTS AGREED. This was an action by the plaintiff, a resident of Hancock county, against the defendant company, established at Bangor, in Penobscot county, on a policy of insurance.

ON facts agreed; the full Court to render judgment and assess damages according to law. The facts will be found in the opinion. If a replevin suit be determined against the plaintiff in replevin, it shows that he had no right to the possession of the property, and his interference therewith was wrongful.

<p>A judgment creditor cannot commence the levy of an execution while the debtor is under arrest or imprisoned by virtue of the same or a subsequent execution upon the same judgment.</p> <p>All subsequent proceedings of a levy relate back to the time of its commencement, which is the time of seizure.</p> <p>Specifications of defence need not contain the technical accuracy of a special plea.</p> <p>They need only intelligibly disclose the ground of defence relied upon.</p>

<p>In ejectment, the fact that the defendant has an easement in the demanded premises constitutes no bar to the plaintiff’s right of recovery.</p>

ON FACTS AGREED. The county commissioners of Waldo county, on petition of J. H. Kaler and others, laid out two highways over tide waters, in the city of Belfast; one on the site of Nickerson bridge,” and the other across Fish creek.” The city of Belfast appealed, and duly entered their appeal at the October term, 1864, when a committee was duly appointed.

<p>The signature of one selectman to a written contract cannot bind the town.</p>

On Exceptions from Nisi Prius, Danfortii, J., presiding. The presiding Judge overruled the demurrer, and the respondent alleged exceptions. The remaining facts appear in the opinion.

<p>Bill in Equity, heard on demurrer. '</p> <p>The facts appear in the opinion.</p>

On facts agreed. Assumpsit to recover the amount paid for the support of an insane pauper in the insane hospital, from August 31, 1864,to Feb. 28, 1865. The pauper was a single person, twenty-one years of age, and once had his settlement in Detroit. Nov., 1857, he removed to Pittsfield, where he continued to reside until Nov., 1859, when, upon due examination, being found insane, he was sent to the insane hospital, in Augusta, where he remained until Feb., 1865, when he died.

<p>Indictment. — On Exceptions.</p>

Ok facts agreed. For the facts, see the opinion. The President demanded of the defendant town its proportion of 500,000 men. Defendants promised each man by its vote $300, and thereupon, without his consent, appropriated plaintiff’s service upon its quota, and received credit therefor. The vote of the town was made valid by Act of Feb. 17, 1865. Plaintiff’s patriotic zeal in enlisting before the passage of the vote of the town should not injure his claim.

<p>On ExoeptioNS from JSTisi Prius, Davis, J., presiding.</p> <p>Writ of Entry.</p> <p>Upon the ruling of the presiding Judge, a nonsuit was entered by consent, to be taken off if in the opinion of this Court the ruling was erroneous.</p> <p>The facts appear in the opinion.</p> <p>Cited Arnold v. Iron Works-, 1 Gray, 434; Horton v. Norton, 5 Cush., 580; Gibson v. Soper, 6 Gray, 280; Anderson v. Roberts, 18 Johns., 215; Bean v. Smith, 2 Mason, 252 ; Édgall v. Lowell, 4 Yerm., 405 ; Oriental Bank v. Harkins, 3 Met., 332; Somes v. Brewer, 2 Pick., 183.</p> <p>Neal was under no legal disability, and hence his deed was only voidable. 2-Kent’s Com., 451, and cases cited. Wait y. Maxwell, 5 Pick., 217; Allis v. Billings, 6 Met., 415. That it conveyed a seizin to the grantee. The deed may be set aside as between immediate parties, but not as to subsequent bona fide purchasers from’ the grantee for value without notice. Wood v. Mann, 1 Sumner, 506. Such principles applicable to all voidable deeds. Any other doctrine would destroy all faith in records, set afloat all titles to real estate, and'defeat the object of the law. -</p>

On Exceptions from Nisi JPrius, Davis, J., presiding. Defendant demurred and the plaintiff joined. The presiding Judge overruled the demurrer, proforma, and the defendant excepted. The remaining facts appear iii the opinion. The promise on the part of the city was full and complete, on the day the order was passed. It was to pay as soon as the order was legalized. Actual payment was withheld until legalization.

Bill in Equity between partners, praying for an account. The case was heard on bill, answer and proofs. The facts appear in the opinion.

On Exceptions from Wisi Prius, Walton, J., presiding. Ejectment. The action was defaulted and thereupon the defendant moved that judgment be entered up as of mortgage, which was resisted by the plaintiffs. The presiding Judge refused to grant the motion and the defendant excepted.

Bill IN Equity, setting forth substantially that the complainant was married to one J. M. Fogg, Dec. 11, .1855, with whom she lived until June 5, 1858, when the said Fogg deceased; that, during her coverture with said Fogg, he was seized and possessed of the equity of redemption of two certain parcels of land situate in Lewiston, county of Androscoggin, and adjoining each other, the same having been conveyed to the said Fogg during his intermarriage with” the complainant,…

On Exceptions from Nisi Prius, Walton, J., presiding. Assumpsit on a promissory note by the indorsee against the maker. It appeared that when the note was sold and delivered to the plaintiff, the payee agreed to indorse it without recourse at any time.

ON Report from Nisi Prius, Dickerson, J., presiding. Assumpsit by a creditor of a railroad corporation against one of its stockholders. contended,— 1. The action of assumpsit is not maintainable in this suit. It is a statute remedy, prescribed by the charter or some other statute. Such actions have always been a technical action on the case, trespass on the case, or scire facias, never assumpsit.

ON ExceptioNS from Nisi Prius, Dickerson, J., presiding. Assumpsit upon one of several promissory notes given by the defendant to the plaintiffs for logs sold. The facts appear in the opinion.

<p>Appeal from a decree of the Judge of Probate of the county of Sagadahoc, distributing the personal estate of Iiuldah Greene, deceased, among the nephews and neices of the deceased, to the exclusion of a grand neice.</p> <p>The reasons assigned for the appeal were as follows : —</p> <p>1. Because by said decree the personal estate of said deceased, who died intestate, is not ordered to be distributed to the persons who are her heirs, and who are entitled bylaw to receive the same, the said Jane being one of said heirs, and no part of said personal estate being ordered by said decree to be paid and distributed to her.</p> <p>2. That said deceased left no child, nor any issue of any deceased child, nor aiiy father, nor any mother,- that said deceased had had four brothers and one sister, all of whom died before she died, leaving children and grandchildfen, who are still living; that one of her said brothers was Gideon Stinson; that said Gideon died leaving only two children, viz., Mehitable, and Gideon, jr.; that said Gideon Stinson, jr., afterwards, before the death of said Huldah, died, leaving two children only, viz., Ellen M., and Jane D., aforesaid; and that said Jane D. is a grandchild of Gideon Stinson aforesaid, a brother of said Huldah, the deceased, and as such, by right of representation, was'entitled to a distributive share of the personal estate of said deceased ; but though she claimed her share thereof at the Probate Court held as aforesaid, no portion thereof was ordered to be paid to her, but the whole of said estate was ordered by said decree to be paid to other persons.</p> <p>By R. S., 1841, c. 93, § 1, clause third, it is provided, that, if one dies intestate, seized of lands, &c., "if he shall leave no issue, nor father, his estate shall descend in equal shares to his brothers and sisters, and to the children of any deceased brother,” &c.</p> <p>By c. 295 of the Laws of 1852, the third clause of the section above quoted was amended by inserting the word "grandchildren,” giving them the same right of the " parent, he being dead.”</p> <p>In the revision of 1857, c. 75, § 1, the original third clause, and the amendment are united, the phrase being "children or grandchildren.”</p> <p>In both revisions (1841 and 1857,) the third, fourth and fifth clauses relate to the same case, in which the intestate leaves no issue, nor father. The three clauses are to be considered and construed together. They are in one and the same section of the statute. In the Laws of 1821, c. 38, § 17, they were divided into separate clauses. Such a division cannot change their connection and relation.</p> <p>Under the statute of 1841, in a case like the present, the personal estate being distributed to the same persons to whom real estate would descend, the appellant would not be entitled to any share. Quinby v.- Higgins, 14 Maine, 309.</p> <p>Hut the amendment of 1852 changed this, giving the grandchild of a deceased brother or sister, the child being dead, the same right that the child would have had if living.</p> <p>And, in a case exactly like the one at bar, within the particular terms of the fifth clause, the Court applied to it the amendment of the third clause, construing them together, and giving the grandchildren of a deceased sister the same share collectively, "by representation,” that their parent would have had if living. Doane v. Freeman, 45 Maine, 113.</p>

<p>A penal action cannot be maintained after tlie repeal of the statute creating the penalty sought to he recovered.</p> <p>And, although the repealing statute creates a similar hut a less penalty.</p>

ON EXCEPTIONS from Nisi Prius, Cutting-, J., presiding. The facts appear in the opinion. The defendant having disabled himself from fulfiling his contract is liable to an action, although the time specified for its fulfilment had not arrived. Chitty on Con., 631-2; 2 Parsons on Con., 666.

ON Exceptions from Nisi Prius, Appleton, C. J., presiding. Case for damages sustained in consequence of defects in a toll bridge. When the plaintiff had introduced his testimony, the presiding Judge ruled that the action could not be maintained, and thereupon ordered a nonsuit to be entered, to which ruling the plaintiff alleged exceptions. The facts sufficiently appear in the opinion. contended that,— 1.

<p>2f a person, who has, upon due notice, presented to the assessors true and perfect lists of his polls, and all his estates, real and personal, not exempt from taxation, &e., refuses to answer all proper inquiries in relation to the nature anti situation of his prox>erty, and, if required, to subscribe and make oath to the same, he is thereby barred from applying to the county commissioners for any abatement of his taxes.</p>

ON Report from Nisi Prius, Kent, J., presiding. Assumpsit on an account annexed for twenty-three lambs at $3,75 each, with a credit of $50. The remaining facts appear in the opinion. Bargain had been struck, statute of frauds complied with, and the property in the lambs transferred to the vendee.

The defendant, a resident of Ohio, was the owner of a tract of timber land situated in Yassalboro’, in Kennebec county, which plaintiff, a resident of Maine, desired to purchase, and, on the 25th day of September, 1864, addressed defendant a letter requesting his lowest cash price for said lot, as he was desirous of purchasing the same.

Case. Action of slander. Verdict for plaintiff for $19 damages, at Oct. term, 1864. Exceptions filed by plaintiff. Decision of Law Court received, (overruling the exceptions,) May 18, 1866. The interest on the verdict, after it was rendered to time of final judgment, was 1,71 cts., so that the whole judgment for damages is 20,71 cts. Plaintiff claimed fall costs, which clerk allowed.

<p>Logs, timber, ote., designed and intended to be manufactured and sold in some town other than that in which their owner resides, but in which, on the first day of April, he occupies a mill, store or wharf, are rightfully taxable in such town, and not in the town where the owner resides, although they may not, on the first day of April, in the year for which the, tax is assessed, have actually arrived within the corporate limits of such town, provided they are in the course of the year brought there and manufactured.</p>

<p>ON FACTS AGREED.</p> <p>The facts appear in the opinion.</p>

ON Exceptions from Nisi Prius, Cutting, J., presiding. Case, charging that defendant, with intent to injure the plaintiff, kindled a fire on land in his own possession, which being carelessly managed by the defendant, ran on to the land oí the plaintiff and burned over his woodland, which is the injury complained of.

On Facts Agreed. Assumpsit by a legatee in the last will and testament of 1/0 John W. Reed, son of the defendant, to recover the arrears of pay and bounty of the testator, obtained by the defendant from the XT. S. government since the decease. The testator devised to the plaintiff certain specific property named, also all money that I may have at my decease,” &c. The will was duly proved, approved and allowed.

<p>When, during the progress of a trial, one party’s counsel has notice of communications between the other party and some of the jurors before whom the cause is being tried, but goes on with the trial without objection, he thereby consents to abide the result.</p>

On Exceptions from Nisi Prius, Tapley, J., presiding. Indictment for being a common seller on the first day of January, 1864, and on divers other days and times between said first day of January aforesaid, and the day of finding of the indictment, last Tuesday of November, 1865. The respondent pleaded in bar a former conviction of keeping a drinking house and tippling shop, covering the same time mentioned in this indictment, to which plea the County Attorney demurred.

On Exceptions from JSTisi JPrius, Davis, J., presiding. Real Actions. The.presiding Judge sustained the levies under which the defendants claim, and the plaintiffs alleged exceptions.

<p>On ExceptioNS from Nisi Prius, Walton, J., presiding.</p> <p>Trover for eighty sheep. The plaintiffs contended that the sheep were the exclusive property of one Timothy E. Eogg, while the defendants claimed they were the property of a copartnership alleged to exist between said Fogg and the defendant Baker. It appeared in evidence, that the defendants fraudulently obtained possession of the sheep, drove them to Brighton and sold them; and that the plaintiffs settled with Fogg, and paid him in full for the sheep before bringing this action.</p> <p>The defendants contended that the action could not be maintained by plaintiffs, but only by Fogg. Upon this point, the presiding Judge instructed the jury that if the sheep were so purchased by Fogg as to render them exclusively his and subject to his exclusive control, and he thereupon left them in the care and custody of the plaintiffs and took from them the writing introduced, they would thereto become his bailees, and have such a property in the sheep as would enable the plaintiffs to maintain trover for their conversion against a stranger or one having no right, title or interest in them, or right of control over them, if, before bringing their suit, the plaintiffs had settled with Fogg and paid him in full for the sheep.</p> <p>Yerdict was for the plaintiffs, and the defendant alleged exceptions.</p> <p>The evident design of the paper between plaintiffs and Fogg was to prevent defendant Baker, who claimed a partner’s interest in the sheep, from obtaining possession of them.</p> <p>The authorities go to the extent that a mere depositary may maintain an action for an invasion of bis possession against a stranger having no color of title, and there the rule stops. As against a person claiming a right in the property, bare possession is not enough. Naked'possession alone is better than no kind of possession or title whatever; but a colorable title is better than bare possession. Plaintiffs were but mere shepherds, and their possession was his. Story on Bailment, § 92.</p> <p>The bailee may bring an action in his own name when his actual possession is violated. His right to sue in his own name results from the fact of his liability to the owner. Story on Bailment, § 93. A mere custodian is not liable to owner and cannot bring action in his own name, especially where property is fraudulently taken from him without his fault. The writing between Fogg and Yinings is a mere nudum pactum. Settlement with Fogg after sheep taken gave plaintiffs no right of action. The instruction misled the jury in conveying to them the idea that, by the settlement, the plaintiffs acquired new rights. The whole transaction grew out of a disagreement between partners, and is a device to evade the law by maintaining a suit at law by one partner, but in the name of other parties, where equity should adjust the business of the firm.</p>

On Report from Nisi Prius, Walton, J., presiding. Complaint for Flowage.

<p>R. S., e. 132, § 7, does not require warrants issued by judges of police courts to be made returnable before any justice of the peace within the county.</p> <p>The jury are not judges of the law in criminal cases.</p> <p>They are bound by the instructions of the presiding Judge in matters of law, to the same extent in criminal as in civil suits.</p>

<p>On ExceptioNS, from Nisi Prius, Cutting, J., presiding.</p> <p>Scire facias against the defendant, who was defaulted as trustee in the original action in which the principal defendant was a person under guardianship.</p> <p>The defendant disclosed that he purchased of Oliver Walker — guardian of the principal defendant in the original action — a pair of yearling steers and a steer calf, for which he agreed to pay thirty-three dollars in one year. The presiding Judge discharged the trustee, and the plaintiff alleged exceptions.</p>

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

<p>Bill in Equity.</p> <p>The case was heard on demurrer.</p> <p>cited Webster y. Clark, 25 Maine, 313, and cases there cited; Doohray y. Mason, 48 Maine, 178; R. S., c. 61, § 1.</p>

Oh Exceptions from JSTisi Prius, Appleton, C. J., presiding. Appeal from the decree of the Judge of Probate for the county of Penobscot. The presiding Judge ruled that the Probate Court had jurisdiction, and that the appellant was not a party aggrieved and had no right of appeal, and affirmed the decree of the Judge of Probate appointing an administrator; and the appellant alleged exceptions.

On FACTS - AGREED. The facts appear in the opinion. submitted an elaborate brief; but owing to the view taken by the Court, a report of but one point becomes necessary. Prior to writing the letter, Leathers had been in no actual military service,” nor was he in any until the following January, a period of ten months afterwards, and then only in some unimportant raiding. The English statutes/29 Car. 2, c. 3, and 1 Viet., c. 26; § 11, are exactly like ours.

<p>Terms were not authorized by chapters 22G or 227 of the Public Laws of 1804, to purchase “marine credits” with which to fill their quotas.</p> <p>Neither does c. 298 of the Public Laws of 1805 ratify such a purchase.</p> <p>Under a proper article in the warrant, a vote “to raise six thousand dollars for men to fill our quota, and that W. B. J\ he a committee to procure men,” &c., does not authorize the committee to purchase “marine credits.”</p> <p>A defendant town voted to “accept, and pay S. A. B. $435 each for ten men for three years’ service, that S. A. B. give security that those men shall continue in the army three years, unless sooner discharged, or refund the money;” — Held, that the vote applied to “men” and not to “marine credits,” and that the giving of security was a condition precedent.</p>

<p>On MotióN to set aside the verdict as against the weight n . -, n of evidence, &c.</p> <p>It appeared that the water which propelled the plaintiff’s gristmill and also the defendants’ sawmill, was raised by a dam across Sebasticook river, the outlet of, and one hundred rods below, Newport pond; that, in 1854, the defendants erected a reservoir dam directly at the outlet of the pond, the object of which was to produce a flow of water for preservation and use during the season of drought; that the reservoir dam was the defendants’ property and under their entire control; that the effect was to flow the shores of the pond to the injury of abutters, causing much complaint from them at times. At the same time, the large amount of surface thus flowed, from 5000 to 7000 acres, and at the depth of about three feet above its natural level, produced a vast accumulation, which, moderately expended, furnished water sufficient for the season’s supply. Care had been taken to so construct the dams, both at the mills and at the outlet, as to meet the contingencies of flood and drought by waste ways and flash boards.</p> <p>The plaintiff’s mill was driven by water taken from the lower dam by a flume.</p> <p>Early in the season of 1862, the defendants shut down the gates of the reservoir dam, causing a large accumulation of water in the pond. Land owners called for damages for flowage. Plaintiff refused to contribute towards paying said damages, when the defendants notified the plaintiff they should let out the water, and did so, thereby causing the injury sued for in this action.</p> <p>The verdict was for the defendants, and the plaintiff moved.it be set aside as being against- evidence.</p>