Volume 56 — Maine Reports

<p>In tlie trial of a real action, brought after foreclosure, by a mortgagee of lands against the mortgager, to recover possession of the mortgaged premises, the defendant is estopped to sot up a lease from the assignee of a senior mortgage of the premises, given by the defendant.</p>

<p>On Pacts agreed.</p> <p>Assumpsit for alleged pauper supplies furnished by the plaintiffs to the widow and children of Littlefield Bowden, whose legal settlement, at the time the supplies were furnished, was in the defendant town.</p> <p>On the 29th day of January, 1881, Bowden, (his family then residing in Verona,) enlisted in the military service of the United States, in Co. A, first regiment of Vet. Infantry of Maine Volunteers, and was killed in battle, on May 17, 1864. Prior to his enlistment he had supported himself and family without aid from the town.</p> <p>On or about Peb. 22, 1865, the overseers of the poor of Verona sent to the overseers of the poor of Penobscot a written notice, therein declaring that the "family of Little-field Bowden, an inhabitant of Penobscot, having fallen into distress and in need of immediate relief in the town of Verona,” the same had been furnished by the town of Verona, on the account and at the charge of Penobscot, and requesting the removal of said family and the payment of the expense of their support, amounting to $22.</p> <p>In March, 1865, in consequence of said notice, two of the overseers of the poor of Penobscot, called upon one of the overseers of the poor of Verona, and agreed with him that, if said family required further supplies exceeding ten dollars, the overseers of Penobscot should be notified, and they would remove the family to'Penobscot. No other notice was given. The articles charged in the plaintiffs’ account were furnished to said family. The plaintiffs received from the State $36,75 for aid to the family.</p> <p>Two items of the plaintiffs’ account were furnished prior to the notice, and all the others subsequently. Eor the purpose of presenting the questions of law to the full Court, it was admitted that the supplies furnished were necessary.</p> <p>If the action could not be maintained, the plaintiffs were to become nonsuit.</p> <p>That plaintiffs are entitled to recover for all the items furnished after April 1, 1865. Pub. Laws of 1865, c. 331, § 6. After May 17, 1865, one year after Bowden’s death in battle, Verona had no claim upon the State for reimbursement for any supplies to his family. During that year, plaintiffs could claim reimbursement from the State to a certain extent, but no longer. Pub. Laws of 1864, c. 257, § 1.</p> <p>The defect in the notice of Feb. 22, was cured by the defendants’ board of overseers. Yorh v. Penobscot, 2 Maine, 1; Novthfield v. Taunton, 4 Met., 433.</p> <p>The special agreement made by one of plaintiffs’ overseers, could not bind them. JBoothby v. Troy, 48 Maine, 560.</p> <p>No new notice necessary. Veazie v. Howland, 53 Maine, 38; Pub. Laws of 1865, c. 331, § 6.</p>

<p>In an action on the case for an injury occasioned by a defect in a highway in the defendant town, the plaintiff’s declaration alleged, inter alia, that said “highway was so defective and out of repair and amendment, by reason of an insufficient and defective causeway, — said causeway having broken down near the end, — thereby obstructing the flow of the water, causing a large accumulation of ice on and near said causeway, and the earth to be gullied out on one side thereof, that in passing upon said road and around said defect and causeway, the wheel of the plaintiff’s wagon broke through the ice,” and the plaintiff was thrown from his wagon and injured, and that the defendants had notice ! 1 of said defect, obstruction and want of amendment as aforesaid.” The proof as to the obstruction of the water was, not a breaking down, but a depression of one end of the causeway occasioned by the inadequate capacity of the culvert to discharge the water flowing there, and the consequent accumulation of ice under and upon it; Held,</p> <p>1. That there was no variance as to the obstruction;</p> <p>2. That the parenthetical clause might be rejected as surplusage;</p> <p>3. That, as matter of description, it is not essential in ascertaining the identity of the cause of action; and</p> <p>4. That, not the insufficient and defective causeway only, but the accumulation of ice through which he broke and the condition of the road, both in and out of the travelled path, are complained of as the defect causing the injury, and of which it is alleged the defendants had notice.</p> <p>Notice of a defect in a highway may be inferred from the length of time during which the defect has existed.</p> <p>And the state of the weather and its natural effect upon the ice over which the public have travelled, are proper matters for the consideration of the jury upon the question of notice.</p>

<p>The marriage of a minor daughter with her father’s consent constitutes one mode of emancipation.</p> <p>From what circumstances such consent may he implied.</p>

On Exceptions. Case against the defendants, as selectmen of Presque Isle, for unlawfully, wilfully, purposely and maliciously refusing to issue and deliver to plaintiff an order,of the town for the sum of three hundred dollars,” pursuant to a vote of the town, passed March 18, 1865. The writ was dated March 28, 1865. The case was referred to the presiding Judge with the right to except.

<p>There was. a controversy between the parties as to the right to the possession of a certain lot of land, and the dwellinghouse thereon, which one of the defendants helped to erect, and in which he had some personal effects. The plaintiff declared that the defendants broke land entered his dwellinghouse, destroyed his stove, assaulted and expelled him from the premises. The defendants asserted a previous trespass by the plaintiff, as well as the first assault in this case, and a subsequent mutual compromise and adjustment of the whole matter. Upon this last issue there was conflicting testimony, but the jury found it for the defendants. On a motion to set aside the verdict as being against the weight of testimony: — Held, that the verdict in such a case will not be disturbed when it affirms nothing that is posi■tively incredible.</p> <p>The jury were instructed, that, if the matter was all settled up by the parties and they so understood it, each party presenting a claim against the other, and the asserted settlement was not a myth, but a reality, it constituted a defence. To this the plaintiff excepted, upon the ground that the instruction did not require the jury to find that the specific matters embraced in the declaration were settled : —• Held, that where it appeared that the “ matter was all settled up” in good faith, this Court will not inquire whether every matter of mutual aggravation in a personal conflict was canvassed in the adjustment.</p> <p>Where a controversy has been adjusted by the parties to it, by an offset, mutually agreed upon, of the claims which each sets up against the other, and there is a reciprocal agreement not to sue on either side, courts should give effect to the agreement, unless the case shows bad faith in the assertion of any claim at all on the part of one of the parties, or that the claim is so destitute of foundation as to savor of imposition and extortion.</p>

<p>The assessors of organized plantations are subject to the performance of the duties devolving on the municipal officers of town's in relation to perambulation.</p>

Bill in Equity, brought by Ralph C. Johnson and twelve other taxable inhabitants” of the city of Belfast, against Timothy Thorndike, as treasurer, and Axel Hayford, as mayor of said city. The Belfast & Moosehead Lake Railroad Company, certain persons named as directors of said railroad company and the city of Belfast, defendants. The case was heard on bill, answer and proofs.

<p>Chapter 152 of the Public Laws of 1868, providing that waivers of demand and notice, by an indorser of notes and bills, shall be in writing and signed, in order to be valid, is prospective in its operation.</p>

On Exceptions. ' , The defendant seasonably filed the following plea :— And now the said Brannagan comes and defends, &c., when, &c., and says that he ought not to be held to answer to the said writ and declaration of the plaintiff against him, but the said writ ought to abate, because, he says, that previous to the time of the purchase of said writ, and the plaintiff’s declaring thei’ein, to wit, on the 12th day of March, A. D. 1868, the parties signed and acknowledged an…

On Report. Action for breach of covenant. Plea, general issue. The plaintiff introduced a deed to himself, signed by the defendant, bearing date March 20, 1865, acknowledged April 25, 1865, and proof aliunde of its actual delivery on the day of the acknowledgment. He also proved payment by him, May 19, 1866, of the city, county and State taxes assessed upon the property described in the deed and wTrit, for the year 1865, to the amount of $157,50.

On Report. Assumpsit for supplies furnished to one Moore, wife and children, from Jan. 1, 1866, to Dec. 1, 1867, they having fallen into distress in the plaintiff town where they were then living and in need of support. The plaintiff introduced evidence tending to show that the alleged paupers had their settlement in the defendant town at the time the supplies were furnished, and that the defendants, were duly notified.

On Exceptions to the ruling of Goddard, J., in the superior Court. Assumpsit on an account annexed. On April 12, 1867, the plaintiff leased a shop with certain fixtures to the defendant, and on the same day sold him certain articles, (then in the shop, but not mentioned in the lease,) for $180.

<p>On Exceptions.</p> <p>Debt, against James R. Dockray and John Farrington, for that defendants and one Eben McLellan, since deceased, and whom defendants have survived, on July 6, 1861, at said Portland, by their writing obligatory of that date, the same being a probate bond, then and there given by said Dockray, Farrington and McLellan, for the benefit of the estate of one Thomas McLellau, then deceased, and which said writing obligatory has been destroyed by fire, and therefore cannot here in Court be produced, acknowledged themselves indebted in the sum of ten thousand dollars to the said William G-. Barrows, Esq., then Judge of Probate of wills, and for granting administration within said county,' to be paid to the said Barrows or his successors in said office. And the said Waterman being then and there the successor of said Barrows, in said office, and Judge of Probate, as aforesaid, at a term of the Court of Probate, held at Portland, within and for said county of Cumberland, on the third Tuesday of March current and instant, by his decree and order of that date, did expressly authorize William L. Putnam, of said Portland, administrator de bonis non, with the will annexed of said Thomas McLellan, deceased, said Putnam being then and there a party in said estate, and said bond, to commence this suit for the benefit of said estate, and this writ is sued out by said Putnam in the name of said Waterman, Judge of Probate of Cumberland county.</p> <p>The defendant Dockray pleaded non est factum, which was joined, and also performance as follows : —</p> <p>And for further plea, by leave of Court, pleaded, the said Dockray says, that the plaintiff his action aforesaid against him, ought not to have and maintain, because, he says, that the said Eben McLellan, from the time of the making of said writing obligatory, well and truly kept and performed all the covenants and conditions therein on his part to be kept and performed, according to the form and effect of said writing obligatory. And this he is ready to verify, wherefore he prays judgment, if the plaintiff his action aforesaid against him ought to have or maintain, and for his costs.</p> <p>To which the plaintiff replied : —</p> <p>And the said John A. Waterman, as to the said plea of said Dockray, by him secondly above pleaded, says that he, said Waterman, by reason of anything in that plea alleged, ought not to be barred from having and maintaining his aforesaid action against said defendant, because, he says, that said Eben McLellan, from the time of the making of said writing obligatory, did not well 'and truly keep and perform all the conditions thereof according to the form and effect of said writing obligatory, in that, though on divers days and times between the making of said writing obligatory, and the day of the purchase of this said writ, said Eben McLellan did receive into the possession of him, said Eben McLellan, in his said capacity as executor, large amounts of goods, chattels, rights and credits of said testator, which ought by law to have been administered before the purchase of this writ by him, said Eben McLellan, in his said capacity, to wit, of the value of ten thousand dollars; yet the said Eben did not administer the same according to law and to the will of said testator. And this he is ready to verify. Wherefore he prays judgment for his debt aforesaid and his writ.</p> <p>To which the defendant demurred; aud for causes of demurrer in law to the said replication, the said Doekray states and shows to the Court here, that the said plaintiff has not and does not in and by his said replication set forth and state with particularity and precision the breach of condition by said Eben McLellan, in their said writing obligatory, and the particular items thereof, and the assignment of a breach of said writing obligatory, and the condition thereof in the plaintiff’s said replication is insufficient and defective in law, in particularity and precision, and also that the .said replication is in other respects uncertain, informal and insufficient.</p> <p>And the plaintiff joined the demurrer.</p> <p>The presiding Judge sustained the demurrer, and the plaintiff alleged exceptions.</p> <p>cited P. M. Gen. v. Goehrane, 2 Johns., 413 ; U. S. v. Arthur, 5 Crunch, 257 ; 1 Saunders, 9, n. 1; 2 Saunders, 409, n. 2 ; Bailey v. Rogers, 1 Maine, 194; 1 Chit. PL, 326; Cornwallis v. Savory, 2 Bar., 772; Story’s PL, 230 and note; 6 Chit. PL, 330, 624, 657-8 and 671; People v. Dunlap, 13 Johns., 437.</p> <p>cited 1 Chit. PL, 585, and cases cited.</p>

<p>On Exceptions to the ruling of Goddard, J., of the Superior Court.</p> <p>The verdict was for the plaintiff, and the defendants alleged exceptions to the rulings, which appear in the opinion, together with a sufficient statement of the material facts in the case.</p> <p>cited Logan v. Pontchartrain Railroad Go., 11 Rob., (La.,) 24; Redfield on Railways, 244.</p>

Bill in Equity, heard on demurrer. The respondents severally demurred and answered to the merits of the bill. The material allegations in the bill are stated in the opinion: contended that putting in severally a demurrer and answer to the whole bill, was in violation of the rules of pleading, and cited, on this point, -Story’s Eq. Plead., §§ 442, 458, 463 and 465; 1 Daniell’s Chan. Plead., 659, (2,) and cases cited; Qlark v. Phelps, 6 Johns. Chan., 214.

<p>On Exceptions.</p> <p>Indebitatus Assumpsit on account annexed, amounting to $122,99. The defendant seasonably filed in set-off an account amounting to $361,20. The case had been heard by an auditor, who reported a balance due the plaintiff of thirty-two dollars. At the trial at Nisi Prius, testimony was introduced tending to prove the items in both accounts. The jury returned the following verdict, to wit: —</p> <p>"The jury find that there is a balance due the plaintiff of eighteen cents, and that the defendant did promise in manner and form as,the plaintiff has declared against him, and assess damages for the plaintiff in the sum of eighteen cents.”</p> <p>Whereupon the plaintiff claimed full costs, to which the defendant objected. The presiding Judge directed judgment to be entered for the plaintiff for eighteen cents damages, and for costs no more than one-quarter of his damages; to which ruling the plaintiff alleged exceptions.</p> <p>cited Lawrence v. Ford, 44 Maine, 427.</p> <p>cited R. S., c. 151, § 13; Lawrence v. Ford, 44 Maine, 427; Thompson v. Thompson, 31 Maine, 130; R. S., c. 82, § 98.</p>

<p>A bill in equity alleging that three of the four defendants were not inhabitants of this State, will, on demurrer, be dismissed as to thorn, when no service has been made on them.</p> <p>And where the bill was inserted in a writ, and the officer returned a general attachment of all the defendants’ right in real estate in the county, and also attached a certain schooner as their property; and subsequently, a copy of the bill, with the order of Court thereon, was served upon the fourth defendant who had removed from the State since the filing of the bill; whereupon he pleaded to the jurisdiction, alleging his removal, and that, at the time of the alleged attachments, he did not own and has not since owned any right in real estate in the county, or any interest in the schooner: — Held, that the plea be adjudged good, and the bill dismissed as to him.</p>

Debt to recover the penalty provided in Special Laws of 1821, c. 74, § 7,* for filling up two hundred yards of plaintiffs’ canal near Vaughan’s bridge, in Portland, &c. cited Thayer v. Boston, 19 Pick., 511; 3 Robinson’s Practice, 337; Clark v. Mayor of Washington, 12 Wheat., 40; 2 Hill, on Torts, 472, and cases infra; Angelí d¿ Ames on Corp., § 386, and cases infra.

On Exceptions to the ruling of Goddard, J., in the Superior Court. Debt, by trustee process, on a judgment recovered in the S. J. Court, Jan., 1868.

<p>On Exceptions.</p> <p>Debt on a judgment recovered at the October term, 1862, of this Court for Cumberland county, in favor of the plaintiff against John Dow, Elisha Trowbridge, William Parker, Alvah Libbey and George Worcester, for $1068,67 debt, and $18,03 costs. The original action was upon a note dated Dec. 12, 1856, given by the defendants for the sum of $800 payable in four months to the order of John Dow, and by him indorsed in blank.</p> <p>The defendants seasonably filed specifications of defence, pleaded nil debet, with a brief statement alleging substantially that the note upon which the judgment in suit was founded, was never the property of the plaintiff, and that he never had any legal interest therein, nor in the judgment ; that the note was really the property of some of these defendants, and that suit was brought thereon in the name of the plaintiff, with his fall knowledge and consent; and that said judgment has long since been paid and satisfied.</p> <p>The plaintiff read an attested copy of the record of the judgment declared on.</p> <p>The defendants Parker and Libbey, subject to the plaintiff’s objection, testified substantially, — that the defendants were directors of the Cumberland Brick Manufacturing Company; that they made and sold the note in the market to raise money for the company; that when it became due Dow and Worcester did not pay any part of it, but that Trowbridge paid $100, and the witnesses an equal proportion of the remainder of the note and took it up ,* that witnesses caused the original suit to be commenced and prosecuted to judgment, in order to make the other defendants contribute ,• that the plaintiff consented to have the suit brought in his name, but had no interest therein; and that since the rendition of the judgment it had been equalized, and settled up between^ Libbey, Parker, Trowbridge and Worcester, Dow being unable to pay anything.</p> <p>The testimony of the plaintiff, called as a witness, was somewhat in conflict with the foregoing.</p> <p>It also appeared that another note, sued in the name of Pratt, against the C. B. M. Company and.these defendants, was the property of one Carlisle; and that said Libbey, Parker, Trowbridge and Worcester satisfied the judgment.</p> <p>The plaintiff requested the presiding Judge to give twelve instructions ; all of which he gave except the following : —</p> <p>8. That it is not competent for the defendants to prove, and fhe jury are not authorized to find that the note on which said judgment was founded was the property of said Parker, Libbey and Worcester, nor that said suit was brought for their benefit, nor that they were the owners of said judgment, because the record is conclusive evidence that each and all the defendants owed the whole amount of said judgment. This was not given. .</p> <p>4. That it is not competent for the defendants to prove, and the jury are not authorized to find, that the note upon which said judgment was founded was really the property of some of these defendants, because the record is conclusive evidence, that each and all the defendants owed the whole amount of said judgment at the time it was rendered. This was not given.</p> <p>5. That it is not competent for these defendants to prove, and the jury are not authorized to find, that the note upon which said judgment was founded was never the property of said plaintiff, and that the plaintiff never had any interest therein, nor in said judgment, unless they allege in their brief statement, and prove what person or persons did have the property in said note and in said judgment. This was not given.</p> <p>7. That it is not competent for the defendants to prove, and the jury are not authorized to find, that in the prosecution of said suit, and in the recovery of said judgment, said plaintiff was a mere nominal party, because they have not set forth any other person or persons, as the real parties in interest in the prosecution of said suit and recovery of said judgment, except that some of the defendants were the parties in interest, which they are not permitted by law to do. This was not given.</p> <p>11. That if the jury find that some of these defendants paid a portion or all of the amount of said judgment to some of the other defendants, such payment is not to bo regarded as made in satisfaction of said judgment.</p> <p>Upon the whole case the Judge instructed the jury as follows, and requested them to answer three questions, which he proposed to them in writing.</p> <p>The Court instructed the jury that, if Pratt authorized the suit on the note to be brought in his name, he having no interest whatever in the samé, and the judgment thereon had been settled and paid by the parties defendant to the parties interested in and owning the demand, and the same had been fully adjusted and paid, to find a verdict for the defendants.</p> <p>Was the plaintiff the owner of the note upon which the judgment in suit was rendered, by purchase, assignment, or in any other mode ?</p> <p>Answer. No.</p> <p>' Has the judgment in suit been paid and satisfied by arrangement between those who were the owners of the same, and those who were the debtors?</p> <p>Answer. Yes.</p> <p>Did the plaintiff consent that the suit might be brought in his name for the benefit of those of the defendants by whom the note had been paid ?</p> <p>Answer. Yes.</p> <p>The verdict was for the defendants and the plaintiff alleged exceptions.</p>

<p>The substantive offence described in the Public Laws of 1858, c. 33, § 12, is complete ^whenever there is a keeping of intoxicating liquors with intent that an unlawful sale thereof shall be made in this State by any person.</p> <p>Section 14 does not require that the complaint shall allege by whom the intended sale is to be made.</p> <p>If a complaint does contain such an allegation and there be a variance between the allegation and the proof of the particular person by whom the defendant intended the sale to be made, it will be an immaterial one.</p> <p>Section 14 of c. 33 of Public Laws of 1858, as amended by the last clause of § 1 of c. 131 of the Public Laws of 1867, added nothing to the offence described in § 12.</p>

On Motion to set aside a verdict as being against law, and against evidence and responsive to the issue. Writ of Entry. Plea, general issue with a disclaimer of a portion of the demanded premises. The verdict was that the defendant did disseize the plaintiffs in manner and form as the plaintiffs have declared against him. The following questions were submitted to the jury: — 1.

On Exceptions to the ruling of Goddard, J., in the Superior Court. Assumpsit On a note for $48, given by the defendant to the plaintiff, dated April' 13, 1867. Plea, general issue., ■with brief statement denying any consideration, and also alleging that the consideration was an unlawful one. The case was tried by the Judge (without the intervention of a jury) whose decision was subject to exceptions in matters of law.

On Report. Assumpsit to recover back the sum of $200, paid by the plaintiff to the defendant, for one share in the Mt. Vernon Land and Petroleum Company, together with the interest on the same.

<p>A certificate under the hand of the clerk and the seal of this Court, stating substantially that, at a term named, “ a divorce from the bonds of matrimony was duly decreed between” certain persons named, “ as will more fully appear by the record,” &c., is not admissible evidence of any fact therein stated.</p> <p>Neither is a paper signed and sealed in like manner, and certified to be a “ true extract from the record.”</p> <p>In an action between towns for the recovery of the value of certain pauper supplies, wherein an alleged divorce of one of the paupers from his former wife becomes a material question at issue, the judgment of divorce rendered by this Court twelve years previously, but shown not to have been extended upon the records, may be proved by a certified copy of the docket entry of the libel and the clerk’s memoranda of the action of the Court thereon.</p> <p>What evidence is sufficient in such case to legally establish such judgment.</p> <p>In such ease, it is not necessary to show, by direct proof, that the allegations in the libel brought the case within the jurisdiction of this Court.</p> <p>Nor to show that the libellee was defaulted.</p> <p>Erom the docket entry “ notice proved,” this Court will assume that legal * notice was ordered and given.</p> <p>The identity of the parties to the libel may be proved by parol evidence.</p>

On Exceptions. Assumpsit to recover damages under the following count: For'1 that the said defendants, at Lewiston, to wit, at said Auburn, on the eighteenth day of June, in the year of our Lord one thousand eight hundred and sixty-seven, had and received of the plaintiff the plaintiff’s single wagon, of the value of one hundred and fifty dollars, the same to be kept and used by the said defendants for the period of one month from the said eighteenth day of June aforesaid,…

On Exceptions. ‘ Trespass quare clausum. The plaintiff excepted to the ruling of the presiding Judge, which ruling, together with the material facts in the case, sufficiently appears in the opinion. The potatoes growing upon land under a lease not terminated, never had the character of realty, the title to them and the title to the land being separate and distinct.

On Report. Debt on a replevin bond, dated Dec. 16, 1862, given by the city of Bath, as principal, and the defendant and one Linscott, as sureties, in the penal sum of $7,914.

■On Exceptions. Real Action brought upon a mortgage. The defendant Benj. Hall disclaimed as to lot No. 5, and claimed title in the remaining lots. James N. Hall justified his possession as tenant at will of Benjamin Hall.

On Exceptions. Assumpsit upon two promissory notes given by the defendant, a resident of Oxford, in this county, to the plaintiffs, residents of Boston, Mass. The writ was drawn by Josiah II. Drummond, a counsellor of this Court, residing in Portland. On the back of the writ were the words:—From the office of Drummondthe first four words being printed, and the word Drummond having been written by the said J. H. Drummond, prior to the entry of the writ.

<p>On Report.</p> <p>Trover for three hundred and eighty-six thousand feet of logs.</p> <p>The facts are sufficiently stated in the opinion-. • The case was submitted to the full Court to render judgment according'to the legal rights of the parties.</p> <p>The plaintiff claims title to the whole of the property by force of the agreement.</p> <p>The plaintiff had a good and sufficient lien on the timber upon the landing, and that lien was in full force and effect at the time of the forbidding. Sawyer v. Fisher, 82 Maine, 28.</p> <p>There was no waiver by plaintiff of his rights, by voluntarily parting with' the possession, or by any act or agreement founded upon a valuable consideration. Spaulding v. Adams, 32 Maine, 211; Danforth v. Pratt, 42 Maine, 50.</p> <p>The principle of caveat emptor must be applied in all its force against the defendant. Sawyer v. Fisher, 32 Maine, 28.</p> <p>The defendant, by his purchase from Bragg, could not acquire any greater rights than his vendor (Bragg) had.</p> <p>The question of confusion or intermixing of the timber, has no force as against the plaintiff; if they were so intermixed, it was done by the defendant, through his vendor. Ilazeltine v. Stockwell, 30 Maine, 231; Spofford v. True, 33 Maine, 284.</p> <p>The timber being, to all intents aud purposes, the property of the plaintiff, and the immediate right to possession in him, when on the landing, the demand and forbidding by plaintiff (in April, 1866,) and the subsequent acts of the defendant, establish, beyond question, a wrongful conversion by the defendant. Dickey v. Franklin Bank, 32 Maine, 572 ; Moody v. Whitney, 34 Maine, 563 ; Fernald v. Ohase, 37 Maine, 289.</p> <p>The damages to the plaintiff, in this case, should be the value of the property at the time of conversion, or right to the action commenced, with interest. Brown v. Haynes, 52 Maine, 578 ; Pierce v. Benjamin, 14 Pick., 357 ; Fowler v. Gilman, 13 Met., 267.</p> <p>The plaintiff is the general owner, and, as such, is entitled to compensation. The defendant had no lien, and never had, and cannot claim any deduction.</p> <p>There having been a demand and forbidding on the landing, the damage should be the value of the timber on the landing. Moody v. Whitney, 38 Maine, 174, (last clause of the opinion.)</p> <p>But the defendant (dehors the agreement "A,”) may contend that Bragg was a co-tenant of the plaintiff, and, by the sale by Bragg to him, the defendant became co-tenant of the plaintiff.</p> <p>If the Court should find that the plaintiff had no lien on the timber, then plaintiff claims that the defendant is liable in this form of action, to the extent of plaintiff’s interest (two-thirds,) in the timber cut and hauled by Bragg. Weld v. Oliver, 21 Pick., 559 ; Wheeler v. Wheeler, 33 Maine, 347.</p> <p>■ Bragg could only sell his share to the defendant, and he could hold only that share. The defendant sold and disposed of the entire property, for, he says, he " drove the timber to Lewiston and the Lewiston St. M. Co. used it.” How came they by it? The defendant was the last person seen by plaintiff in possession of the timber, and the presumption of law is that he disposed of it.</p> <p>We contend that an agent is liable for misfeasances or torts to the owner of the property, whether he acted by the direction of his principal or not. Perkins v. Smith, 1 Wilson, 328; Bush v. Steinman, 1 B. & P., 410; Fair-brother v. Ansley, 1 Camp., 343.</p>

<p>Nothing but payment of the debt secured by a mortgage on real estate, or a release, will operate a discharge of the mortgage.</p> <p>A mortgager, when redeeming his mortgage, is not obliged to pay compound interest, although the note secured thereby, in terms, requires it.</p> <p>On March 4, 1846, a mortgage of real estate was given to the respondent’s testator to secure a note, of the same date, payable “ with interest annually.” A few years afterwards, the mortgager gave to the complainant’s assignor a mortgage of the premises, “ subject to the former,” to secure a sum therein specified. March 4, 1865, the mortgager gave to the respondent’s testator another negotiable note for the interest computed annually, which had accrued upon the original note, and on the same day made an indorsement upon the original note as follows : — “ Received the interest on the within note to date by a note of March 4, 1865,” &c. The respondent in her account of the amount due upon the mortgage, claimed payment of both notes, and interest on each, from the date of the latter. In a bill brought by the assignee of the junior mortgage, to redeem the senior mortgage : — Held,</p> <p>1. That the second note was not intended as payment;</p> <p>2. That the complainant was entitled to redeem upon payment of the original note and simple interest; and</p> <p>3. That the respondent having claimed in her account more than she was entitled to recover, was liable for costs.</p>

<p>By the law of Massachusetts and of Maine, the giving of a negotiable draft is to be deemed prima fade evidence of payment of that for which it is given.</p> <p>The plaintiff, as agent of the owners, chartered their vessel for a voyage from Boston to Callao, for §1625 per calendar month, payable at Callao, so far as earned, up to time of discharge there, in drafts on the United States, at sixty days sight, to the order of the captain, first deducting amounts advanced him for disbursements, with liberty to the charterers to recharter her for a cargo of guano. The consignees, at Callao, paid the master on account of freight earned §5210 in cash, and gave their draft on a Boston house for §7000, at sixty days, payable to the order of the master, who indorsed it to the plaintiff. The consignees rechartered the vessel for a cargo of guano. At its maturity, the draft remaining unpaid and the drawees having failed, they transferred their interest in the freight money in the guano to the plaintiff, as agent of the owners, to collect the same on account of the vessel’s earnings. Twenty days afterwards, the defendants’ testator, owning three-sixteentlis of the vessel, sold his interest in the unpaid draft to the plaintiff, at fifty per cent., talcing therefor the plaintiff’s note, which by its terms was “for” the testator’s “ three-sixteenths interest in the unpaid §7000 draft.” The guano freight was received and divided among the owners, the testator receiving three-sixteenths thereof. In assumpsit to recover the money received by the testator: — Held,</p> <p>1. That the giving of the draft was prima fade payment pro tanio of the freight earned.</p> <p>2. That the plaintiff purchased of the testator the latter’s interest in the draft only, and not his interest in the guano freight.</p>

On Report. Assumpsit against the defendant as indorser of a promissory note for $150, dated March 1, 1864. The action was brought by direction of the receivers of the bank. The defendant seasonably filed in set-off1 bills of the bank, amounting to $176, which bills had been filed and proved before the receivers, Aug., 1866, and their certificate given therefor. The remaining facts sufficiently appear in the opinion.

On Facts Agreed. Debt on a replevin bond, dated June 10, 1859. The plaintiff was a deputy sheriff for this county, when the bond in suit was given, and as such, held in his possession, a piano, which he had taken from one McGowan upon a legal search warrant issued upon complaint of the defendant Hoeffner. The title to the piano was claimed by both Hoeffner and McGowan, who notified Berry of the fact, and demanded possession.

On Report. Assumpsit, to recover $31,25 for three mouths’ rent of one undivided half of a store in Gardiner. After verdict, the parties, in order to have a final disposition of the case, reported the evidence to the full Court, who were to render such judgment as the law and evidence required. The remaining facts sufficiently appear in the opinion.

On Report. Assumpsit to recover back a tax assessed in 1866, by the proper authorities of the city of Augusta, against the plaintiff corporation, for certain national bank stock and city bonds, in which it had invested moneys received on deposit. The tax was paid under protest and to relieve certain of the shares from distraint for the tax.

On Report. Debt ou a bond, dated Nov. 9, 1860, given by the defendants to the plaintiff for the release of the principal from arrest in this county, on a writ in favor of the plaintiff, returnable at the Nov. term, 1860, of this Court for this county.

<p>This Court will not entertain a petition for certiora/ri for the correction of merely harmless errors which can in no event seriously prejudice the petitioner.</p> <p>Thus, on a petition for a writ of certiorm-i to quash the record of a corps of justices of the peace and of the quorum, organized to hear the disclosure of the petitioner as a poor debtor, for the alleged reason that their decision as to the legality of his application, citation and service thereof, was contrary to law and in violation of his legal reghts;' such writ will not be granted when it appears that the petitioner, notwithstanding the action of the justices, is entitled to judgment in an action by the creditor upon the petitioner’s bond.</p>

On Exceptions. Assumpsit for breach of promise of marriage. Writ dated January 30, 1866. The plaintiff being a. witness, was asked by her counsel— what, if anything, was said to the witness (plaintiff) by Mrs. Cook, defendant’s mother, in relation to the plaintiff’s future connection with the family.

On Exceptions. Trespass on the case, to recover compensation for damages alleged to have been sustained to the plaintiff’s mill by a dam erected by the defendant. The first and uppermost dam upon the stream was built as early as 1802, which, with the mills erected thereon, has been maintained ever since. The plaintiff’s (middle) dam was erected from 1823 to 1830. The defendant commenced the erection of his (lowest) dam in the fall of 1843 and completed it in March, 1844.

<p>Prior to and including the year 1864, no town had any lawful authority to contract with substitute brokers for the furnishing of men to fill its quotas. And none of the statutes enacted since that time has authorized or ratified, or confirmed such a contract.</p> <p>The inhabitants of a town can maintain no action for the breach of such a contract.</p> <p>The defendants demurred to ar declaration in such an action, containing a special count duly setting out such an agreement, the consideration thereof, its non-performance and the consequent damages, and a count for money had and received, claiming under the latter, to recover the consideration paid by the plaintiff's, upon the ground that the same was obtained-from them by “false and fraudulent assurances, representations and promises of the defendants — Held, that, as the latter count disclosed a good cause of action, the demurrer cannot be sustained.</p>

<p>On Exceptions.</p> <p>Writ ok Entry to recover possession of Spaulding Island, situated in the Kennebec river, in Norridgewock. Writ dated Aug. 29, 1865. Plea, general issue, with the following brief statement:— ;/</p> <p>That he is in possession of the demanded premises under the authority of John W. Sawtelle, administrator of Thomas Spaulding, in whom, as administrator of said Spaulding, the legal title to said premises is vested in fee and in mortgage; that William M. Mann, under whom the demandant claims to derive title, conveyed said premises in fee and mortgage to said Thomas Spaulding, to secure payment of the amount of a note described in said mortgage. That this defendant, before the death of said Spaulding, purchased said note of said Spaulding, who duly indorsed and transferred the same to him. That, after the death of said Spaulding, said John W. Sawtelle was duly appointed his administrator, and, by virtue of his authority as such, became seized of the legal title under said mortgage in trust for this defendant, he being the legal owner of said note, and the equitable owner of said mortgage; and said Sawtelle duly authorized this defendant to take possession of the demanded premises under said mortgage, as he legally might do ; and this defendant, acting under the authority of said Sawtelle’s legal title, and of his own equitable title, took possession of said premises, and thus holds the same under his own title and under that of said Sawtelle. And this defendant therefore alleges and claims that his right to the possession of the demanded premises is prior to, and superior to, any supposed or alleged title of said demand-ant.</p> <p>The plaintiif introduced testimony tending to show that one A. A. Mann commenced carrying on the island in controversy, about the year 1853, and continued to do so until 1863; and that he made a levy upon the premises in March, • 1864, by virtue of an execution in his favor against A. A. Mann; .after proving the death of William M. Mann,, the plaintiff put in letter of guardianship to one James Trench, of the minor heirs of William M. Mann; inventory of the estate; license to sell the real estate, including the island, dated March, 1864, together with the bond on such license ; guardian’s return of 'the license; guardian’s deed to the plaintiff, dated April 16, 1864, acknowledged and recorded April 18, 1864.</p> <p>The plaintiff testified that he took possession of the island, latter part of April, or first of May, 1864, and continued in possession until July 9, 1865.</p> <p>The defendant put in a deed of the premises, dated Nov. 8, 1853, and recorded, from Thomas Spaulding to William M. Mann; mortgage deed of the same premises of same date and record from William M. Mann to Thomas Spaulding ; note of William M. Mann to Thomas Spauldiug, same date as mortgage, for $200 on demand, indorsed in blank by the payee and bearing two indorsements of money., dated Nov. 9, 1854, and January 13, 1855, respectively; letter of administration, dated Feb. 4, 1862, on the estate of Thomas Spaulding, to John W. Sawtelle; deed of quitclaim (" of Spaulding island, same conveyed to me by A. A. Maun,”) dated Sept. 11, 1862, and recorded 16th Sept.,” from H. D. Frost to the plaintiff; and deed of warranty, dated July 14, 1860, recorded Sept. 1, following, from Obadiah Mann to H. D. Frost.</p> <p>The defendant also introduced testimony tending to prove the allegations in his brief statement, of which was the testimony of John W. Sawtelle, who testified, substantially, that Thomas Spaulding, and his father before him, once owned the island; that witness was administrator of the former’s estate ; that, in the spring or early summer of 1864, A. A. Mann applied to witness for authority, under him as administrator, to take possession of the island, and that witness granted the request; thát Mann said, at the time, he applied as agent of the defendant. On cross-examination, he testified that he found neither the mortgage or note among Spaulding’s papers.</p> <p>After the testimony was all in, the following questions were submitted to the jury: —</p> <p>"Was the defendant Asael W. Calden, when this action was brought, Aug. 29, 1865, holding the demanded premises under the authority and permission of John W. Sawtelle as administrator of Thomas Spaulding, the original mortgagee? Was said defendant, at that time, the holder of the note described in the mortgage from William M. Mann to Thomas Spaulding?” To both of which questions the jury returned an affirmative answer.</p> <p>Thereupon, the parties agreed to report the case, including the special findings, for the consideration of the full Court, to enter such judgment, upon so much of the foregoing evidence as is legally admissible, as law and evidence should require.</p> <p>In the course of the trial, plaintiff offered evidence of statements made by Amos A. Mann and William M. Mann, made when both said they were returning from the disputed territory, though he stated he did not know of his own knowledge whether they were returning from the Island during Amos A. Mann’s occupancy of it, relative to Amos’ title to and interest in it, and the Court excluded them.</p> <p>In his charge to the jury, the Court instructed them that, in finding their verdict, they should not consider the evidence of Spaulding’s statements, that the mortgage had been paid up, as testified by Morse, that testimony having been excluded on the ground that it did not appear that Spaulding was the owner or in possession of the note when the statements were made.</p> <p>ITe also instructed them that, if the administrator of Spaulding consented to the defendant’s going- into the possession of the premises, and the defendant, by himself or agent, went into possession thereupon, he would in law be deemed in possession under the authority of the administrator.</p> <p>To which rulings the plaintiff excepted.</p> <p>elaborately argued the following propositions.</p> <p>1. The defendant derived whatever interest he had to the Mann mortgage and note as late as July 14, 1860.</p> <p>2. No evidence that the condition of the mortgage had been broken.</p> <p>3. The declarations of Spaulding, in relation to the payment of the mortgage, were erroneously withdrawn from the jury. 1 Greenl. onEv., §§ 189, 190; Hatch v. Dennis, 10 Maine, 249; Shirley v. Todd, 9 Maine, 83 ; Lanathan v. Patten, 39 Maine, 142; Bond v. Fitzpatrick, 4 Gray, 89; Church in Brattle Square v. Bullard, 2 Met., 363; Cilley v. Bartlett, 19 N. H., 323; Jackson v. Bard, 4 Johns., 230; Jackson v. Myers, 11 Wend., 533; Padgett v. Lawrence, 10 Paige, 180 ; Pitts v. Wilder, IN. Y., 526 ; Merrill v. Foster, 33 N. H., 379 ; Fellows v. Fellows, 37 N. EL, 75; Davis v. Spooner, 3 Pick., 284; Morgan v. Lawrence, 10 Met., 754; Carver v. Jackson, 4 Peters, 1.</p> <p>4. That the note was paid before breach, and before any pretended interest in it was obtained by the defendant.</p> <p>5. If the note were not paid, there is no evidence that the defendant had any interest in it or in the mortgage.</p> <p>6. The last instruction was erroneous; 1, upon the hypothesis stated in giving it; and, 2, not applicable to the facts proved.</p> <p>7. The defendant, claiming nothing but an equitable title, cannot set that up as a bar to the plaintiff’s legal title. R. S., c. 73, § 8; c. Ill, § 1; Jackson v. Chase, 2 Johns., 84; Jackson v. Pierce, 2 Johns., 221; Sinclair v. Jackson, 8 Cow., 543; Jackson v. VanSlyck, 8 Johns., 488; Crane v. Crane, 4 Gray, 323 ; Moore v. Spellman, 5 Denio, 225 ; Bunyan v. Mersenion, 1 Johns., 534; Hitchcock v. Harrington, 6 Johns:, 290; Coles v. Coles, 15 Johns., 319; Astor v. Miller, 2 Paige, 68; same v, Hoyt, 5 Wend., 603 ; Blaney v. Bearce, 2 Maine, 132 ; Wilkins v. French, 20 Maine, 111; Upham v. Bradley, 17 Maine, 423 ; Fose v. Handy, 2 Maine, 321; Prescott v. FRlingwood, 23 Maine, 34.</p> <p>8. The mortgagee never having been in possession, payment, if made after forfeiture, revests the entire seizin in the mortgager. R. S., c. 90, §26; c. 90, §§ 9, 14; Whit-comb v. Simpson, 3 Maine, 21; Holman v. Bailey, 3 Met., 55 ; Stewart v. Crosby, 50 Maine, 130; Bank v. Drummond, 5 Mass., 321; Co. Lit., 218, § 350.</p> <p>9. The mortgage having been paid to Spaulding in his lifetime, if any seizin did remain in him at his death, it descended to his heirs, and his administrator had no control over it. 8 Mass., (Sup.,) 557 ; Parsons v. Welles, 17 Mass., 421; Stat. of 1789, Feb. 11, §§ 1, 2, 3. This statute being in derogation of the common law, to be construed strictly. Mortgages have words of inheritance.</p> <p>Johnson v. Bartlett, 17 Pick., 477; Crooker v. Jewell, 31 Maine, 306; Webber v. Webber, 6 Maine, 127.</p>

On Report. Trespass against the sheriff of Somerset county; for that the defendant, by Josiah D. Bartlett, his deputy, on July 1, 1865, with force and arms, seized, took and carried away five hundred dollars, in bank bills, current in this State as money, and of the value of five hundred dollars, the property of the plaintiff, and unlawfully converted the same, &c. Plea, general issue with brief statement.

<p>A recognizance, with sureties for his appearance at a certain term' of this Court, entered into before a police judge by a person accused of an assault with intent to kill, is amendable even after suit is commenced upon it.</p> <p>Such a recognizance taken by the police judge before whom the examination was had, after the officer, in pursuance of a mittimus duly issued upon the default of the accused to recognize, had taken the prisoner into his custody and departed from the police Court, and before a full commitment thereon, is void.</p>

On Report. Writ op Entry. Both parties claim title from Matthew Cottrill, the plaintiffs by deeds as followsMatthew Cottrill to Samuel Glidden, Feb. 7, 1846 : Samuel Glidden to Hannah E. Cottril, Sept. 17, 1858 ,• and Hannah E. Cottrill to the plaintiff, Catherine Glidden, April 28, 1860; and the defendant by virtue of a levy, March 7, 1856.

<p>On Facts Agreed.</p> <p>The case is stated in the opinion.</p> <p>cited R. S. of 1841, c. 106, §§ 7 & 8 ; c. 107, §§ 26, 27, 28, 80 & 31; Gook v. Lee, 36 Maine, 340; Foxcroft v. Hevins, 4 Greenl., 72.</p>

On Exceptions and Motion to set aside the verdict as being against the weight of evidence. Assumpsit on a policy of insurance effected on the schooner R. H. Perkins, which left Bangor June 12, 1866, and, after being delayed at Bucksport several days, on accouut of head winds and bad weather, left the latter port, June 20, and foundered .the next day, with all sails set.

On Exceptions, and Motion to set aside the verdict as ■being against the weight of evidence and excessive in amount of damages. Case, for injury received at the slip on the defendants’ wharf in Portland. The defendants requested the presiding Judge to instruct the jury:—• 1. That the defendants were under no obligations to carry the plaintiff beyond the point at which they regularly received and discharged passengers in Portland : — 2.

On Exceptions. Real action to recover a parcel of land situated in Belfast, tried on a writ of review sued out by the defendant. The original writ was dated April 19, 1864. The plaintiff claimed title under a deed of warranty from Mary A. Butler to himself, dated, acknowledged and recorded April 15, 1864.

<p>In the trial of an action brought in the name of the plaintiff alono, for injuring his property, destroying his business and violently expelling him and his wife from the town, —neither the wife’s “ mental anguish in being separated from her husband,” nor her “feelings as a woman, compelled to , abandon a chosen residence and turn her back on associations formed in early life,” is a matter for the consideration of the jury in estimating the damages.</p>

On Report. Writ op Entry against William R. Hunt and William H. Hunt, to recover possession of certain land described in the return of the levy of an execution, issued upon a judgment, recovered in favor of the plaintiffs, against the defendants, in January, 1862. William H. Hunt seasonably pleaded non-tenure, by brief statement, under the general issue, and filed a disclaimer, which was accepted by the plaintiffs.

<p>On Exceptions.</p> <p>Trespass qhare clausum, for breaking and entering a dwellinghouse on Nov. 13, 1866, then occupied by the plaintiff, and ejecting him and his family, and removing his furniture; all of which was duly proved.</p> <p>On the part of the defence, it appeared that, on Dec. 5, 1864, the' house with a cellar under it, together with the land on which it stood, and to which it was attached by an underpinning of split stone, was the property of one Mrs. Black, who on that day verbally leased it to the plaintiff for $30 per year, payable quarterly; that, between that day and August 3, 1866, the plaintiff had paid to Mrs. Black in money and labor $52,86 as rent; that, on Sept. 5, 1866, Mrs. Black gave the plaintiff written notice to quit and surrender the premises in thirty days; that on Nov. 7, 1866, Mrs. Black, in consideration of $100 paid by Benjamin A. Kay, one of the defendants, executed and delivered to him a bill of sale of the house, " with the right to occupy the same where it now is, to the ground, including the underpinning, and also the right to remove 'the same any time before the first day of June, 1867 ;” that Ray took delivery and paid the consideration; that, on the same 7th of November, Ray notified the plaintiff in writing that he had purchased the house, and requested him to quit and surrender it, which the plaintiff refused to do; that thereafterwards, on same day, Kay sued out a writ of replevin for the house against the plaintiff, and, on the 13th of the same month, placed the writ with a good aud sufficient replevin bond in the. hands of Grant, the other defendant, who was then sheriff of the county, for service, aud requested him to replevy the house; that Grant did thereupon replevy the house, eject the plaintiff and family and remove his furniture, and put Kay into possession of the house.</p> <p>It also appeared that the plaintiff had overpaid the rent on the premises at the time of the alleged sale, and that, on the fifth day of November, 1866, in an action of forcible entry and detainer, brought by Mrs. Black against the plaintiff, before the police court in Belfast, for the recovery of the premises, judgment was entered in favor of the present plaintiff.</p> <p>The defendants requested the presiding Judge to instruct the jury that, if they should find that Ray acted in good faith in purchasing the house, (not knowing that there was any trouble between the plaintiff and Mrs. Black about the immediate possession of it;) and that Grant acted in good faith in the service of the replevin writ, doing no more damage than was necessary in the removal of the plaintiff, his family and furniture, then the writ of replevin would be a justification for the alleged trespass and that the defendants would not be liable.</p> <p>But the presiding Judge declined to give the requested instruction; but did give the following among other instructions not excepted to, viz.: — That if the jury should find that the premises in question were real estate, and that the plaintiff had exclusive possession thereof when the writ of replevin was served, that writ afforded the defendant no protection for ejecting the plaintiff and his goods ; and that, in the assessment of damag'es, they were authorized to find, in addition to the damages done to the furniture, a reasonable compensation to the plaintiff and wife for the injury done to their feelings in being removed from the premises.</p> <p>The jury found specially that the damage done to the furniture was $25; and, to the plaintiff and wife, $50.</p> <p>The jury returned a general verdict for the plaintiff for $75, and the defendants alleged exceptions.</p> <p>1. The plaintiff’s tenancy was terminated by the statute notice, and his possession afterwards was by wrong.</p> <p>2. Mrs. Black, having the right of possession, had the right tó sell the house without the land, and thus make it personal property.</p> <p>3. Ray having bought the house and demanded it, could replevy it.</p> <p>4. Plaintiff could not take advantage of the wrong by which he held possession, nor dictate the process by which an end should be put to his wrongful possession.</p> <p>5. The presiding Judge erred in submitting the question, involving the nature of the property, to the jury,—that being a question of law.</p> <p>6. And as to the assessment of damages.</p> <p>7. The requested instruction should have been given.</p> <p>8. Defendant in replevin cannot maintain trespass for taking the property replevied,—remedy is on. the replevin bond. He is estopped from bringing such action during the pendency of the replevin.</p>

<p>In the case of an appeal from the decision of county commissioners laying ■ out a highway, it is for the appellant to see that a competent committee is appointed at the term when the appeal is entered.</p> <p>If one of the committee then appointed be incompetent on account of his interest in the proceedings, the R. S., c. 18, § 35, authorizing the Court to “ appoint some suitable person in place” of any member of the committee who “dies, refuses to act, or becomes interested,” does not authorize the Court, at a subsequent term, to substitute a disinterested person in place of the interested member of the committee.</p>

<p>To constitute a disseizin, the possession of the disseizor must be. adverse in its character, importing a denial of the true owner’s title in the specific parcel of land claimed.</p> <p>The intention of the disseizor need not necessarily, in all cases, he to wrongfully possess himself of property known to him to belong to another. ,</p> <p>It was not the intention of Ii. S., c. 105, § 10, to make the “possession, occupation and improvement,” therein described, eonelusive evidence of disseizin and a bar to “ the right of the true owner.”</p> <p>The object of this section was to make such possession and occupancy “ sufficient” evidence of the adverse intent of the party holding it, in the absence of other testimony establishing its true nature.</p> <p>What testimony will overcome such sufficient evidence, and establish the true character of the possession.</p>

<p>On Report.</p> <p>Assumpsit to recover back taxes assessed April 1, 1864. The facts sufficiently appear in the opinion.</p>

.Oat Motion to set aside the verdict as being against the weight of evidence, and for a new trial on the ground of newly discovered evidence, the latter of which motions was filed the next day after the verdict was rendered. The facts sufficiently appear in the opinion.

On Exceptions. Replevin for a pair of oxen taken and detained by Elisha W. Shaw, at Newport, in the county of Penobscot.” To maintain the issue of non cepit, the plaintiff proved that the defendant and one Pelog H. Tracy, about the first of February, 1867, took the oxen from the possession of one Randall McCrillis, at Palmyra, in the county of Somerset, and drove them towards Newport, in the county of Penobscot; that, a few days afterwards, the plaintiff found the oxen in…

On Report. Assumpsit against the defendant and two lots of logs in the Penobscot river, one marked H X S and the other 4 H 4.

The appellant is the only daughter and principal legatee in the will of Barna,bas P. Merrick; the will was duly made and executed by the testator, and after his death, and after proper notice, the will was duly proved, approved and allowed by the Court of Probate; the appellant was in and by said will named and appointed by the testator to be sole executrix thereof; yet, because the appellant at the time of the execution of the will, and of its approval in the Probate Court,…

<p>On Exceptions.</p>

On Report. Assumpsit on an account annexed, for labor in taking care” of the defendant 144 weeks, to March, 1859, at $1,50 per week,” with certain credits.

<p>The payment of an illegal tax assessed.upon bank shares, for the purpose of preventing the seizure and sale of them by the collector, is not a voluntary payment.</p> <p>To bring the assessment of a tax upon bank shares within c. 193 of the Public Laws of 1863, it must be made to appear that the stock was “ held by persons out of the State or unknown, and that” it had “ not been certified” to or assessed in some place in this State; or that the stock appeared, “by the books of the bank, to be held by some one residing beyond the limits of this State, or unknown.”</p> <p>The Act of Congress, approved Eeb. 10, 1868,* “in relation to taxing shares in national banks,” had no retroactive effect upon any proceedings previously had under c. 126'of the Pub. Laws of 1867.</p> <p>Nor does it affect the decision in Packard v. Lewiston, 55 Maine, 456, as to the validity or invalidity of the several sections of that chapter.</p> <p>The right of tax-payers to recover back a tax paid under protest, must be determined by the law as it was when the tax was assessed and paid.</p> <p>The repeal of the statute authorizing the assessment, after such payment and the commencement of the suit to recover it back, confers no additional rights upon the tax-payer.</p> <p>Packard v. Lewiston, 55 Maine, 456, re-examined and confirmed.</p>

On Report. Assumpsit on a town order of the following tenor: — |300. Mariaville, April 19, 1867. To Reuben Jellison, Treasurer of the town of Mariaville. Pay Lemuel M. Jordan or order, the sum of three hundred dollars, one year from date, it beiug town bounty raised for drafted men.” The order was signed by three persons, as selectmen of Mariaville,” accepted by Reuben Jellison, and indorsed by L. M. Jordan. It was proved that the plaintiffs owned the order.

<p>Since the time when c. 272 of the Public Laws of 1864 went into effect, a complainant in a bastardy suit has been a competent witness to testify to any fact within her knowledge, essential to her case, without first having shown that, being “ put on the discovery of the truth during the time of her travail, she accused the respondent of being the father of the child.”</p> <p>Rut such an accusation is a condition precedent to her right to prosecute the respondent.</p>

On Keport. Assumpsit to recover the value of certain supplies furnished by the plaintiffs to a certain pauper whose settlement they alleged to be in the defendant town. The defendants contended that the pauper’s settlement was in the town of Frankfort.

. On Eacts agreed. Writ oe Entry to recover possession of land owned by ■ the plaintiffs. In Nov., 1860, the plaintiffs permitted the defendant and one Longfellow to place a store or shop upon the demanded premises, at a yearly ground rent of twenty dollars, which rent was paid. On Dec. 30, 1865, the defendant took a lease of the land from the president and treasurer of the company, approved by-one of the directors, for five years ending Dec. 31,1870.

<p>To establish a gift causa mortis, the common law requires clear and unmistakable proof, not only of an intention to give, but of an actual gift perfected by as complete a delivery as the nature of the property will admit of.</p> <p>The delivery of the key of a trunk containing money and government bonds, is not a valid delivery of the money and bonds.</p> <p>The donee must take and retain possession till the donor’s death.</p>

<p>In scire facias against alleged trustees, claiming to charge them upon the ground of their being mortgagees in possession of mortgaged goods, the declarations of the principal defendant’s clerk, importing that he claimed to be in possession of the goods for the mortgagees, are not admissible as evidence of his agency.</p> <p>Neither, in such case, is the extra-official statement in the return of an officer attaching the mortgaged goods, that, “in consequence of and compliance with” the mortgagees’ notice to him of their claim under their mortgage, he “restored” the goods to the mortgagees, evidence against them.</p> <p>In such case, an overstatement of their claim, by a comparatively small amount, made by the mortgagees in their notice to an attaching officer, is not Conclusive evidence of an intent to delay other creditors of the mortgager.</p> <p>A mortgagee of the goods and accounts of his debtor, is not obliged to collect the accounts and apply their proceeds pro tanto to the discharge of his claim upon the goods, to aid other creditors, not secured.</p> <p>A bill of sale of chattels, absolute in its terms, but intended as security only, is not conclusive evidence of a fraudulent intent of delaying creditors.</p> <p>The presentment of their claim under a mortgage of goods, by the mortgagees to an attaching officer, cannot be considered as equivalent to the actual taking of possession, so as to render the mortgagees chargeable as trustees.</p>

<p>When, in indebitatus assumpsit, it appears that one of several joint defendants resides without the Slate, so that no service can be made upon him, the plaintiff may discontinue as to him and have judgment against such alone as are within the jurisdiction.</p> <p>And such judgment, remaining in part unsatisfied, is no bar to a subsequent suit and judgment for a balance of the same cause of action against the remaining defendant, whenever he comes within the jurisdiction.</p>

On Exceptions and motion to set aside the verdict ás being against evidence. Case for injury occurring in consequence of a defect in an alleged highway in the defendant town. The following instructions, (requested by the defendants’ counsel, so far as indicated by quotation marks) were given to the jury : — 2.

<p>A lessor who, without the knowledge or consent of his lessee, has voluntarily-terminated between the rent days tlie tenancy created by a verbal lease, cannot, in the absence of any agreement of apportionment, maintain an action for rent which accrued between the last rent day and the time of the termination of the tenancy.</p>

Bilk in Equity, heard on demurrer, brought in the name of George Warren and Lewis P. Warren, of Westbrook, who were the sole heirs at law of the late John Warren, against .John Gf. Warren and Charles W. Scott, executors and trustees of the last will and testament of the late Nathaniel Warren.

On Report. Assumpsit on a contract of insurance against fire.

<p>Bill in Equity, brought in the name of the President, Directors and Company of the Bank of Mutual Redemption, in Boston, against certain persons named, directors of the Sanford Bank, in 1861.</p> <p>The bill was brought as well in behalf of all the creditors of the Sanford Bank therein named, who might come in and desire to be made parties complainant, as well as in behalf of the complainants ; and alleged substantially that, by an Act of the Legislature of this State, approved March 23, 1854, certain persons [named] were chartered as a banking corporation, by the name of the President, Directors and Company of the Mousam River Bank, at Sanford, with a capital of $50,000; that said corporators duly accepted and organized under their charter; and that, by a subsequent Act of the Legislature, approved April 9, 1857, the name of the corporation was changed to President, Directors and Company of the Sanford Bank.</p> <p>That said bank having become insolvent, upon application of the bank commissioners to Judge Goodenow, of the S. J. Court, an injunction was granted against it, on May 17, 1861; that, on the following day, the injunction was made perpetual and served upon the bank; and that, on May 21, certain persons [named] were appointed and qualified as receivers.</p> <p>That the receivers, in accordance with the statute and orders of this Court, collected the debts due to the bank, disposed of its assets, allowed the claims against the bank, and made their reports to the Court, whereby it appeared that the amount of claims allowed against the bank, as still due and unpaid, were $11,213,01. [The amounts claimed,— the amounts allowed, including that of $6890,51, allowed to the- Bank of Mutual Redemption, were duly set out in detail.] That all the assets were $2068,71; that the assets were insufficient to pay the claims allowed against the bank by $914.4,31, which reports were duly accepted by the Court at the January term, 1864, and the Court adjudged that the assets were insufficient to pay the claims against the. bank.</p> <p>That, by said reports,, the plaintiffs were declared to be, and by said decree adjudged to be, and.that they still were, "creditors of said bank to the amount named.</p> <p>That, on or before May 8, 1861, by the official mismanagement of the directors of said Sanford Bank, nearly the whole amount of the capital stock thereof, viz., $45,000, was lost, so that the assets of said bank were wholly insufficient to pay the creditors; that the directors, by whose official mismanagement the loss was sustained, were Oliver Hill, S. B. Emery, W. L. Emery, Justin B. Merrill, and Samuel Thompson.</p> <p>That the complainants charge these directors with being guilty of the following acts of official mismanagement, viz., " That they loaned the capital stock and funds of the bank to persons known to them to be pecuniarily irresponsible, and upon promissory notes and bills of exchange, the parties to which they knew were pecuniarily irresponsible, and which notes and bills of exchange have not been paid, and are of no value, and which, together with the times when they were discounted, are more particularly described in the schedule annexed; that these directors knowingly permitted promissory notes and bills of exchange belonging to the bank, and the parties to which were pecuniarily responsible for the payment of the same, to be exchanged for bills and notes, the parties to which were irresponsible, which last named bills and notes and times when thus exchanged are particularly described in the schedule annexedthat these directors loaned and invested the funds of the bank in notes and bills at certain times in 1861, (and particularized in the schedule annexed,) when they knew the parties thereto were not responsible, and received as collateral security a pledge of the shares in the capital stock, of the bank, knowing said shares were of little or no value and afforded no adequate security for the loans ; that these directors delivered to responsible parties to bills and notes belonging to the bank their paper, receiving therefor valueless certificates of this bank stock.</p> <p>That these directors loaned the funds of the bank in violation of law and thereby its stock was lost.</p> <p>That these directors were guilty of official gross mismanagement in loaning the bank funds in 1861, upon certain irresponsible paper, described, without making any inquiry as to its responsibility, when they could have easily learned of its irresponsibility upon inquiry, which paper was worthless and never paid) that they knowingly and negligently so managed in relation to investments and loans of the same that the capital stock was lost, &c.</p> <p>All the parties defendant demurred, which demurrers were joined.</p> <p>All of the defendants, except Hill, answered, denying all oficial mismanagement, &c.</p> <p>Justin B. Merrill denied having accepted office of director or having acted as such.</p> <p>The proofs sufficiently appear in the opinion.</p>

<p>When the record is silent on the subject, parol evidence, that the moderator of a town meeting was sworn, should be of a direct and positive character. The return upon a warrant calling a town meeting must bear the sign-manual of the constable who executed it.</p> <p>It is not sufficient that his name was written at his request and in his immediate presence, after having-heard it read.</p>

On Report. Complaint for Flowage. The defendants pleaded in bar a prescriptive right to maintain their dam and flow the plaintiff’s land without any compensation.

On Exceptions. Case, to recover damages suffered by the plaintiff iu his land, cellar, &c., in consequence of want of repair of a drain across certain highways in the defendant town.

On Exceptions. Appear from the decree of the Judge of Probate for this county, allowing the account of the appellee, as executor of the last will and testament of Edith M. Dyer.

On Exceptions. Complaint under B. S., c. 97, concerning bastard children and their maintenance.” The presiding Judge sustained a motion to quash, for certain reasons, which sufficiently appear in the opinion; and thereupon the complainant alleged exceptions. The statute provides for two classes of cases, — one, before the birth, and the other after. B. S., c. 97, § 1. The proceedings are sui generis, and the provisions of the statute must be strictly complied with.

On Exceptions. Assumpsit on policy of insurance issued by Cox & Field, of Belfast, county of Waldo, duly appointed agents of the defendants, pursuant to 14. S., c. 49, § 39- The writ was dated Sept. 18, 1867, and served upon Cox & Field, as by § 39, and was made returnable at the March term, 1868, of this Court in this county.

On Facts agreed. Assumpsit, to recover a bounty voted by the defendants. The case is stated in the opinion. contended that the gist of the vote was to pay volunteers or drafted men, who should be accepted upon the quota of the defendants, under the call of the President. The time was fixed by U. S. statute and the call. The purpose of the vote was to fill the quota under the call. The draft fixed the time of service. The time of service answered the purpose.

On Exceptions. Assumpsit. The writ was made returnable at Rockland, in this county, on the second Tuesday of March, 1869, the time prescribed by the statute for a term of this Court to be holdeu there. No service of the writ had been made and no return was written thereon. On the second Tuesday of March, no Judge appeared to hold the Court; but he did attend the next day and commenced the session, the sheriff having adjourned the Court in accordance with R. S., c. 77, § 26.

<p>The plaintiff was unlawfully seized by the defendants, carried tlienee three miles, and confined in a room several hours, and thence to a town meeting, where he took an oath to support the constitution of the United States, and was discharged. In the trial of an action of trespass, based upon these facts, the plaintiff claimed, (1,) actual damages resulting from his seizure and detention, (2,) damages for the indignity thereby suffered, and, (3,) punitive damages; — Held,</p> <p>1. That the plaintiff was entitled to recover full pecuniary indemnity for tho actual corporeal injury received, and for the actual damages directly resulting therefrom, such as loss of time, expense of cure and the like;</p> <p>2. That the declarations of the plaintiff, made prior to tho unlawful arrest and tending to provoke tho same, not being a legal justification thereof, are inadmissible in mitigation of the actual damages; but,</p> <p>3. That such declarations made on the same day, and communicated to the defendants prior to such arrest, together with all the facts and circumstances fairly and clearly connected with the arrest, indicative of the motives, provocations and conduct of both parties, are admissible upon the question of damages claimed upon the other two grounds.</p>

<p>On Motion to set aside the verdict as being against law and the weight of evidence.</p> <p>Case, for detaining large quantities of logs in the St. Croix Liver by means of the defendants’ boom, in June, 1865, and thereby obstructing the current of the water, and causing it to flow back and upon the plaintiff’s land and injuring his crops.</p> <p>The writ was dated Sept. 2, 1865.</p> <p>The defendants pleaded the general issue, with a brief statement claiming a prescriptive right to maintain their boom, and also setting out their chartered rights to maintain the same.</p> <p>It appeared that the plaintiff owned about twenty-five acres of land, part meadow and part intervale, situated in Baring and Baileyvillo, on the banks of the St. Croix river, and about one and one-quarter miles above the defendants’ boom; that this land was generally flowed more or less in time of freshets; that there has been a dam across the river in Baring and mills erected and in operation there for forty years; that there has been a boorn there, substantially in the same place as the defendants’ boom, for forty years, and kept and managed substantially as in the year 1865 for the same length of time; that the mills required millions of logs to supply them; that, below the plaintiff’s land and about a mile above the defendants’ boom, the river was about twelve rods wide, while just below Marpole’s Island and above the boom, the river was one-half mile wide, and sixty rods wide at the- boom; that from sixty to seventy millions of logs are driven .into the boom annually for the supply of all the mills; that the defendants obtained a charter from the Legislature in 1848, authorizing the erection and maintenance of their boom; that the St. Croix Log Driving Company was chartered in 1847 and 1849, had the custody and control of all logs, &c., turned into the river to be floated down, until their arrival at the defendants’ boom; that there were two freshets in 1865, one in April and the other in the latter part of May or fore part of June, the latter of unusual height; that, in June, 1865, the river was filled "all full” of logs, from the "narrows” to the distance of two miles above the plaintiff’s land; that there was an unusual accumulation of logs at the boom, and the defendants had an unusual number of men employed in June, 1865, to turn out logs from their boom; that they could not work for several days during the extreme height of the latter freshet on account of the force of the current; that it was impracticable to prevent the logs from jamming at the narrows; that the plaintiff’s land was flowed from May to July, 1865, and at an unusual height, after the freshet had subsided in the river; and that, on July 17, 1865, when the jam was broken below, the water fell off three feet on plaintiff’s land.</p> <p>The verdict was for the plaintiff.</p> <p>cited Hooker v. Canal Co., 14 Conn., 146; Lyon v. Jerome, 26 Wend., 485; Pillsbury v. Scott, 1 Penn., 309; Thatcher v. Dartmouth Bridge Co., 18 Pick., 502; Boston & Lowell R. R. Co. v. Salem & Lowell R. R. Co., 2 Gray, 1; Boston W. P. Co. v. Boston & Wore. R. R. Co., 23 Pick., 360; Baker v. Boston, 12 Pick., 184; Brown v. Chadbourne, 31 Maine, 9.</p>

<p>At a legal meeting held January 21, 1865, the defendant town voted, under a proper article in the warrant, “ to raise $100 to every drafted man entering the service,” and that the “ selectmen give orders therefor.” April 6,1865, one Churchill, an inhabitant of the defendant town, was drafted, and, on April 10, he reported; and, being thereupon duly examined and accepted, and allowed on defendants’ quota, he was permitted to go home on condition. that he would return at a specified time. April 11, he received from the selectmen a negotiable town order for $125, which he negotiated to the plaintiff. At the time specified, Churchill reported for duty, when he was informed by the provost marshal that Lee’s army had surrendered, that his services would not be needed, and that he might return home and remain there till further notice. He returned home and was finally discharged in December following. In an action on the order, in the name of the ’ indorsee; — Büd, that Churchill “ entered the service” within the meaning of the vote of'the town, and that the vote was within the statute of this State.</p>

<p>On Report.</p> <p>Assumpsit upon a written contract, dated July 18, 1853. The writ was dated Dec. 17, 1860, and contained a special count upon the contract, and also a count for $1000, for money laid out and expended at defendant’s request.</p> <p>It appeared on the part of the plaintiff, that, in accordance with an advertisement from the post-office department of the U. S., ho, in March, 1853, made a written proposal to carry the U. S. mail on route No. 74, from July, 1853, to July, 1857, for the annual sum of $895 ; that Henry Morrill and William Arnold became his sureties that the plaintiff would enter into a contract, prior to July 1,1853, to perform the service proposed, provided said proposal should be accepted by the department; that the postmaster general, on the 25th of the following April, accepted the plaintiff’s proposal, and duly notified him of such acceptance; that the plaintiff declined to enter into the contract proposed, and that thereupon the post-office department contracted with the defendant to carry the mail on route 74, at a higher annual rate.</p> <p>The contract declared on was signed by both parties and was of the following tenor;—"I, H. N. Lancaster, agree to stand between the post-office department and to hold harmless Charles P. Weld, in the contract for carrying the U. S. mail, as per the proposals advertised by the department, on route No. 74, the department having accepted said Weld’s bid. The said Weld agrees and has informed the department that he cannot fulfil this contract, and furthermore agrees that he will not perform the contract with the departraent. Said H. M. Lancaster hereby agrees to pay C. P. Weld $100 for so doing, and to hold him harmless from all claims of the post-office department.”</p> <p>The plaintiff put in an assignment of the above contract from himself to Henry Morrill, and copy of a judgment of the U. S. against him and his sureties, Morrill and Arnold, for $419,99 debt, and costs taxed at $24,51, recovered in 1856, and founded upon their proposal to carry the mail and refusal to enter into the contract, as agreed in the proposal, after its acceptance. It also appeared that the surety Arnold paid the execution issued on the judgment, and that the defendant frequently promised to pay and adjust the same.</p> <p>The case was taken from the jury and reported to the full Court, which was to render judgment by nonsuit or default.</p>

On Report. Trover to recover the value of one locomotive, one passenger car, four platform cars, one box and two donkey cars. The writ was dated Sept. 25, 1860. Plea, general issue and joinder. To sustain their title, the plaintiffs put in a mortgage of the property in controversy, dated Dec. 3, 1853, duly executed and recorded, from the York & Cumberland Railroad Company to the plaintiffs.

On Exceptions, to the ruling of Goddard, J., of the Superior Court. Assumpsit ou a policy of insurance against fire, effected upon a hotel, and connected outbuildings, situated in Gorham, New Hampshire, and owned by the plaintiff and his partner, both of whom resided in Gorham. There was other insurance to thejsame amount in another company.

On Exceptions. Case, for that whereas the plaintiff is, and from his youth has been, of good reputation among his neighbors and follow citizens, for honesty and propriety of conduct, and hath been wholly free from the atrocious crime of stealing, and hath never been convicted or suspected to have been guilty of that crime, and for more than ten years last past hath been master of a vessel, ¡and entrusted by the owners thereof with the command, care and control of the same,…

<p>In accordance with ihe terms of a deed of submission, entered into by the plaintiff, defendant and one other, the referees awarded under seal that, of the $100 charged by them for fees, this defendant should pay $80, this plaintiff $13, and the other party $7, these being the several suras charged by the referees respectively. The defendant alone refusing to perform her part of the award, was sued jointly with the other parties to the submission, by the referee who charged the sum awarded for her to pay, and recovered judgment, which was satisfied by the plaintiff, who thereupon sued 'the defendant in assumpsit to recover the amount of such judgment: — Held,</p> <p>1. That the action was maintainable-;</p> <p>2. That the action being for contribution and not upon the award should be assumpsit;</p> <p>3. That -the submission and award were admissible in evidence; and</p> <p>4. That the plaintiff recover the full amount paid by him and interest from the time of payment.</p>

On Report. Indictments for assault and battery, found at the May term, 1868, of the Superior Court, and transferred to this Court, because the parties defendant are nephews of the Judge of the Superior Court. There being no terms of this Court for the transaction of criminal business, these cases came up at the April term, 1869, of this Court, which is a term held for the transaction of civil business.

On Report. Trespass for false imprisonment. The writ was dated Dec. 11, 1866, alleging that the defendant with force and arms arrested the plaintiff, against his will, on Sept. 10, 1864, carried him to Portland, and then and there, as well as in sundry other places, restrained him of his liberty until Oct. 8, 1864, &c. It appeared that the plaintiff was a private in Co. E, 29 Maine Volunteers, was wounded April 8, 1864, at the battle of Sabine Cross-roads, and was sent to…

On Motion. Case, to recover for an injury to the schooner Eva Belle, while being loaded by the defendant, with ice at Factory Island wharf,” in the Saco river, in Saco, occupied by the defendant.

On Facts agreed. Assumpsit to recover two hundred and twenty-eight dollars and thirty-eight cents, deposited by the plaintiff with the defendants, Oct. 31, 1866. The defendant corporation was chartered and organized in 1856. Among their by-laws are the following: — 1.

Indictment, founded on R. S., c. 4, § 61, alleging (omitting formal parts) that on the 14th day of September in the year of our Lord one thousand eight hundred and sixty-eight, at Augusta, in the county of Kenuebec, a meeting of the inhabitants of said Augusta, in the county aforesaid, for the election of Governor of the State aforesaid, and Representative to Congress for the third Congressional district of said State, and State Senators for the seventh senatorial district…

On Exceptions. Debt on a poor debtor’s bond. Defence, performance of one of the conditions by disclosure and discharge. The plaintiff read the bond and rested his case.

On Report. The first case is Case for using more water than the defendants are alleged to be entitled to, and thereby depriving the plaintiffs thereof. The plaintiffs claim under a deed from Abraham Hill to Nathaniel Rollins, dated Dec. 1, 1836, duly executed and recorded, and represent and have the title of Rollins, while the defendants represent and have the rights and title reserved by Hill in the deed mentioned.

On Exceptions. Action brought under B,. S., c. 24, § 18, for enticing an apprentice from his master, and harboring him. Writ dated Dec. 14, 1869. The case was submitted to the presiding Judge, with leave to allege exceptions in matters of law.

Bill in Equity, hoard on demurrer. The main allegations of the bill may be seen in the opinion.

On Exceptions and Motion. Debt on a bond, dated March 14, 1855, given by the defendant to the plaintiff, stipulating that the former would convey to the latter the real estate therein described, on the conditions that the plaintiff should pay him $400 in twelve, $400 in twenty-four, and $200 in thirty months, with interest. The case was withdrawn from the jury and submitted to the presiding Judge, reserving the right to allege exceptions.

<p>The disclosure of a poor debtor, who has procured his release from, arrest on mesne process, by giving the bond mentioned in R. S., c. 113, § 16, is a statute proceeding.</p> <p>To be effectual, the provisions of the statute relating thereto and the condition of the bond must be complied with.</p> <p>If the debtor disclose and show that he has filed his petition in bankruptcy and has been duly declared a bankrupt, and thereupon refuses to “ submit himself to” further “examination,” and to “make true disclosure of his business affairs and property on oath;” and the justices refuse to hear any other legal and pertinent evidence adduced by the creditor, the debtor will not thereby entitle himself to a discharge.</p> <p>If a discharge be granted in such case, the proceedings of the justices will be quashed on cwtiorari.</p>

On Report. Petition for review. The petition was dated Oet. 15, 1857, and substantially alleged that, on July 5, 1856, Parker Sheldon, as administrator of the estate of Parker C. Sheldon, sued out his writ of trover against the respondent, to recover the value of certain logs therein described, which writ was duly entered in this county; and that, Parker Sheldon having deceased after the entry of the action, the petitioner was duly appointed administrator de bonis non, and…

On Exceptions. Assumpsit. The defendant requested the presiding Judge to instruct the jury that, there being no count for interest, the plaintiff could recover interest only from the date of the writ.

On Exceptions. Eepleyin of a lot of merchandize, of the alleged value of $800. The presiding Judge ruled that the facts offered by the plaintiffs, if proved, would not be sufficient to maintain the issue on their part; and no other evidence being offered, a nonsuit was ordered, which was to be taken off and the action stand for trial, if, in the opinion of the full Court, the nonsuit was not legal. The facts will be found in the opinion.

On Report. Assumpsit by an indorsee against the maker of a negotiable promissory note. The writ is dated Aug. 27, 1867. It appears by the officer’s return, dated Sept. 2, 1867, that he attached a horse, harness and three carriages, described and valued in the aggregate at the sum of $420, and that service was completed on the following day.

<p>A fire policy was issued to L., the owner of the building insured. Subsequently L. sold one-half of the building to a partner, and formed the co-partnership of L. & Co. At the expiration of the original policy, a renewal certificate was issued, reciting the receipt of the premium from “ L. & Co.,” the continuation of the policy for three years, and that the “renewal is made upon condition, that the original policy continues in force, and that there has been no change in the risk since first insured, not noticed on the policy and hooks of this company, otherwise this renewal is not binding.” In an action to recover a loss under the renewal: — Held, that the insurers intended to continue the insurance on the property and on the terms and conditions expressed in the policy, hut to the parties who paid the premium.</p>

On Eeport. Trover, for a quantity of logs alleged to have been converted by the defendants in 1860. The writ is dated November 6, 1868.

<p>On Exceptions.</p> <p>Writ of Entrx. The writ dated Sept. 1, 1863.</p> <p>At the May terra, 1865, the death of the original plaintiff was suggested, and the present plaintiffs, heirs of the original plaintiff, appeared and prosecuted the action.</p> <p>The plaintiffs alleged exceptions to the exclusion of certain evidence offered by them. The facts sufficiently appear in the opinion.</p>

<p>On Motion, to set aside a verdict for the defendant, as being against law and the weight of evidence, filed by the plaintiff.</p> <p>The facts sufficiently appear in the opinion.</p> <p>cited Hazard v. Irwin, 18 Pick., 109; 2 Kent’s Com., 482; Beach v. Sheldon, 14 Barb., (N. Y.,) 66; Somes v. Skinner, 16 Mass., 358 ; Chitty on Con., 587.</p>

<p>On Report.</p> <p>The first action is case founded on R. S., c. 113, § 47. Writ dated June 18, 1868. One count charges the defendant with assisting A. D. Harlow and Charles Hichborn, under the name and firm of Harlow & Hichborn, in a concealment of their goods at Bangor, in the winter of 1867-8; and the other, with taking from them, Jan. 20,1868, a transfer of their goods for the same purpose.</p> <p>There was evidence tending to show that, during the year 1867, the plaintiffs sold to Harlow & Hichborn merchandize amounting, in the aggregate, to $1962,53; that Harlow & Hichborn failed in Dec. 1867, when the plaintiffs, with several other creditors, attached H. & H’s goods ; that, on Jan. 20, 1868,- the defendant negotiated an assignment of several creditors’ demands against Harlow & Hichborn to himself, at thirty-fiye per cent., among which was the plaintiffs’ account; that, in effecting the assignment, the defendant made certain statements alleged to be false and fraudulent; that, in consideration of the assignment, the attachments were dissolved and suits discontinued. There was also evidence tending to show that the defendant knew of the failing circumstances of Harlow &' Hichborn; that the defendant took from their store, after -the attachments and before the assignment, quite largue amounts of merchandise and concealed them; and that a settlement at thirty-five per cent, would leave a balance of assets of $13,000.</p> <p>The remaining facts sufficiently appear in the opinion.</p> <p>The concealment and subsequent sale are causes of action. The statute, as it is gives a remedy " in any case,” where plaintiff is a creditor. Plaintiffs’ attachment was dissolved by fraudulent representation. The actual concealment of the goods prevented them from being " seized on execution.”</p> <p>The settlement of the account against Harlow & Hichboru, whether it was a sale to the defendant or a discharge of H. & H., was avoided by the fraud of the defendant. It was rescinded immediately upon a knowledge of the facts by the creditors, by bringing suits upon the original demands against H. & H.</p> <p>Consideration need not be tendered back prior to bringing this suit. It is not in the mouth of the defendant to set up that money has not been returned if he has perpetrated a fraud. If the transaction was merely a discharge to the original debtors, no tender back is necessary. If necessary to the debtors, not to this defendant. No relation between these parties requiring such technicality. Stevens v. Austin, 1 Met., 557; Manning v. Albee, 11 Allen, 520; same v. same, 14 Allen, 7.</p> <p>The negotiations between the creditors and the defendant constituted a mere settlement. He raised the money and thereby became the creditor of H. & H., who subsequently paid him the amount.</p> <p>The taking of thirty-five cents for one hundred cents constitutes no consideration for the agreement to release the remaining sixty-five cents. Hence the sixty-five cents are recoverable. Bailey v. Day, 26 Maine, 88 ; Lee v. Oppenheimer, 32 Maine, 253.</p> <p>B. S., c. 82, § 44, cannot be invoked, because,</p> <p>1. The claim has not been "settled.” The attempted settlement was vitiated by fraud, and hence relation of the parties same as if there were no such statute.</p> <p>2. The statute does not apply, because settlement was made in Boston. The lex loci must govern. The original statute, Pub. Laws of 1851, c. 213, provided that no action shall be maintained "in any Courts of this State,” &c. Hence action might be maintained in U. S. Court in the District of Maine, or in Massachusetts Courts.</p> <p>3. Statute does not inhibit this kind of action.</p> <p>4. Statute does not affect the contract, but only a particular remedy, not this remedy.</p> <p>If a tender was necessary, it was waived.</p> <p>The reason of the rule requiring a tender is "so as not to 4 increase the injury necessarily caused to the other by the rescission,” and because the thing a party may have had fraudulently imposed on him may be of more value to the other party. It is also said that to rescind, one must put the other party in as good a position as he can without injury to himself. Neither of these reasons applies to case at bar; for if plaintiffs do not prevail, defendant is uninjured ; if they do, the defendant or H. & H. is not injured merely because plaintiffs have received a portion of their account without a suit.</p> <p>The reason of the rule applies to other property than money.</p> <p>Counsel also cited Martin v. Roberts, 5 Cush., 126; Pierce v. Wood, 3 Foster, 519.,</p>