Volume 57 — Maine Reports

Trover, for two hundred and thirty-three thousand feet of spruce logs. The taking was not denied, the main question raised being that of title.

<p>Bill in equity.</p>

On exceptions to the ruling of Goddard, J., of the superior court for this comity, who tried the case without the intervention of a jury, but whose ruling in matters of law was subject to exceptions. Assumpsit for money had and received. The plaintiff claimed to recover $1100 wages and prize-money as seaman of the United States steamer De Soto, alleged to have been received by the defendant in May, 1864. The judge fomid the facts against the plaintiff.

On exceptions to the- ruling of Cfoddard, J., of the superior court, for Cumberland comity.

On exceptions to the pro forma rulings of Gfoddard, J., of the superior court for the county of Cumberland.

On exceptions to the ruling of Cfoddard, J., of the superior court, for the county of Cumberland. Assumpsit on account annexed, entered at the September term, and tried at the October term, 1868, by the justice, without the intervention of a jury, subject to exceptions in matters of law.

On relort. Replevin for a kiln of brick. Writ dated Oct. 26, 1867. Plea, general issue and joinder, with a brief statement justifying the taking as sheriff of the county, by virtue of certain writs of attachment against one Vital Cassant, whose property the bricks were alleged to be. The plaintiffs introduced a mortgage of the bricks in controversy, from Vital Cassant to themselves, reciting a consideration of eight hundred dollars.

<p>Certiorari.</p> <p>The writ and the return thereon, containing the petition of Royal R. Burnham and others; notice ordered upon the petition by the committee on laying out new streets; and the retan of the committee made up the case.</p> <p>The petition, signed by Royal R. Burnham and nine others, addressed to the mayor, aldermen, and city council of Portland, and dated April 16, 1866, was of the following tenor:</p> <p>“The undersigned, owners of real estate on the street named below, do most respectfully petition that a survey be made of the westerly portion of Congress street, with reference to straightening and otherwise improving said street.”</p> <p>The notice, dated May 10, 1866, and signed by six persons styling themselves “committee on laying out new streets,” after reciting the petition and reference of the same, on May 7, 1866, by the city council to the committee, continues as follows:</p> <p>“ Therefore, notice is hereby given to all parties interested, that the joint standing committee of the city council on laying out new streets, will meet to hear the parties and view the proposed way, on May 21, 1866, at four o’clock, p. m., at the junction of said Congress street with Portland street, and will then and there proceed to adjudge and determine whether the public convenience requires said street or way to be laid.”</p> <p>So much of the return of the committee as is essential is as follows :</p> <p>“The undersigned joint standing committee on laying out new streets, to whom was referred by the city council on the 16th day of April, a. d. 1866, the petition of Royal R. Burnham and others, praying that a survey may be made of the westerly portion of Congress street, with reference to straightening and otherwise improving said street, have attended to that duty, and now report to the city council thereon as follows, viz.:</p> <p>“Said committee gave due and legal notice to all parties interested therein, of the time and place where they would meet to view the proposed public way and hear the parties, by causing an advertisement thereof to be published in two daily papers printed in Portland, viz.: Portland Daily Press and Portland Eastern Argus, for one week at least previous to the time appointed therefor; and having met pursuant to said published notices at the junction of Congress with Portland street, the place of beginning,, on the 21st day of May, at 4 o’clock in the afternoon, a. d. 1866, and having personally examined the way proposed, and heard all the parties interested therein, said committee did thereupon determine and adjudge that the public convenience and the necessities of the city required that said street or public way should be laid out and straightened as proposed, and accordingly we proceeded to lay out and did lay out,” &c.</p> <p>I. That the record does not set forth what notice was given of the meeting of the committee to view the way, but assumes to determine that due and sufficient notice was given. The notice actually given should appear, and the court will then determine whether it is legal or not. Lancaster v. Pope, 1 Mass. 86.</p> <p>As in levy upon real estate, general averment that notice was given according to law is insufficient. Davis v. Maynard, 9 Mass. 242. Wellington v. Grdle, 13 Mass. 483.</p> <p>• II. That the notice actually given was insufficient.</p> <p>(1) Because the description of the street proposed to be located was wholly indefinite. The only description is “ the westerly portion of Congress street,” a street three miles long.</p> <p>There should be a description by courses and distances, else the notice gives no information to parties interested.</p> <p>Compare the notice required to be given in similar cases by the county commissioners. R. S. c. 18, §§ 1 and 2.</p> <p>(2) Because it did not appear by the notice that final action was then to be taken in locating the street. The petition was only “ that a survey be made.” The only action of the city council was to refer that petition to the committee, and the committee had no authority under that vote to locate a street. The city council must initiate action. The committee cannot do it. City Charter, Sect. 9. And the notice which they gave did not indicate an intention to do more than to act upon the petition referred to them. It was no notice to the public that a street was to be located or altered.</p> <p>See, generally, Dyer in Certiorari v. Lowell, 33 Maine, 260. When the writ of certiorari has been issued, there is no discretion in the court. If errors appear the record must be quashed.</p>

<p>On REPORT.</p> <p>Trover, for three thousand and twenty-nine bushels of corn.</p> <p>The court were to render such judgment as the law and facts required.</p> <p>The case is sufficiently stated in the opinion.</p> <p>1. The corn was purchased on joint account, and the possession of the co-tenant was the possession of Bradley, Coolidge & Rogers. Cushing v. Breed, 14 Allen, 376. Beaumont v. Crane, 14 Mass. 400.</p> <p>2. The corn being stored by a third person, the possession of such third person was the possession of defendants and Bradley, Coolidge & Rogers jointly, and no separation of the corn was necessary to pass both title and possession. BCateh v. Bayley, 12 Cush. 29. Taxworth v. Moore, 9 Pick. 347.</p> <p>3. In either of the above cases no right of stoppage in transitu, and no lien for the purchase-money remained in the defendants, the possession as well as the title to the corn vesting in Bradley, Coolidgo & Rogers, by operation of law, and no separation of the corn being necessary for this purpose.</p> <p>4. The defendants had only given their notes to King, Thurlow & Company for the corn in question; Bradley, Coolidge & Rogers had given their notes to defendants for the same purpose. Now, whatever rights King, Thurlow & Co. might have had to retain the corn for payment of price, the defendants had no such right of detention.</p> <p>5. The defendants, by accepting the one hundred dollars tendered by plaintiffs, became their agents, and cannot now set up a lien for the non-payment of the notes given for the price of the corn by Bradley, Coolidge & Rogers.</p> <p>6. By giving Bradley, Coolidge & Rogers a fixed credit for two and four months, and taking their notes upon that time, the defendants lose all lien for payment. Barrett v. Goddard, 3 Mason, 107. 2 Kent’s Com. 677.</p> <p>The defendants assumed complete and exclusive control of the corn, and sold it, and are liable to plaintiffs for the value of their share.</p> <p>cited Parles y. Sale, 2 Pick. 212; Arnold v. Delano, 4 Cush. 33 ; Bloxam v. Saunders, 4 B. & C. 941; Owenson v. Morse, 6 T. R. 64; Townley v. Crump, 4 A. & E. 52; White v. Wilks, 5 Taunt. 176; Wallace v. Breeds, 13 East, 522; Austen v. Craven, 4 Taunt. 644; j3ws7c y. Davis, 2 M. & S. 397; Sodgdon y. Ta?/, 7 T. R. 446; Peise y. _Rím/, 3 East, 93; Newhall v.. Vargas, 13 Maine, 93; Dixon v. Yates, 5 B. & Ad. 313; Miles y. Yorton, 2 Cromp. & M. 512; Gibson v. Carruthers, 8 M. & W. 341; DeWolfe v. Sowland, 2 Paine’s C. C. R. 356.</p>

On report. Covenant, on warranty in a bill of sale of seven-eigbtbs of schooner Scioto. The only consideration for the bill of sale was the written agreement executed simultaneously with the bill of sale. The court were to render such judgment as the law and facts required. The remaining facts sufficiently appear in the opinion.

Petition for a writ of habeas corpus. The petition alleged substantially that at the time of its date the petitioner was unlawfully held in custody at Portland, by Warren W. Rice, the warden of the State prison, by virtue of a warrant of commitment from the superior court of Cumberland county, a copy of which was thereto annexed; that at the January term, 1870, of said court, the petitioner was indicted for cheating by false pretences, and, upon being arraigned, pleaded…

<p>On exceptions.</p> <p>Debt on two bonds given by the collector of taxes of Gorham, both bonds having the same sureties.</p> <p>The action was defaulted at the January term, 1868, when Frederick Fox was appointed to assess the damages, who subsequently heard the parties, and made his report at the April term, 1869.</p> <p>The report charged the defendants with the gross amount of C axes committed to the collector for the two years, and credited them by the amount paid to the treasurer, as. by the treasurer’s books, leaving a balance against them of $2301.40.</p> <p>The remaining facts sufficiently appear in the opinion.</p> <p>cited Begg v. Whittier, 48 Maine, 315 ; Cummings v. Smith, 50 Maine, 569; Price v. Dearborn, 34 N. H. 481; Willson v. Willson, 5 N. H. 240; West v. Whitney, 6 Foster, 314. That the measure of damages in the report is correct. Colerain v. Bell, 9 Met. 499; Scarboró’ v. Parker, 53 Maine, 465; Ford v. Clough, 8 Greenl. 342; Prescott v. Moran, 50 Maine, 347;. JReadfield v. Shaver, 50 Maine, 43.</p> <p>contended, inter alia, that the sureties are not liable for the whole amount of uncollected taxes; but only for such of them as have been lost by the neglect of the collector, through the insolvency of the persons taxed, or the loss of remedy against real estate by lapse of time or otherwise ; Colerain v. Bell, 9 Met. 499; and in addition to this, such damages as the town has suffered'by the delay to collect taxes which are still collectable by means of commitment to another collector, but cannot be enforced by the sureties defendant.</p> <p>A distress should have issued against the collector (he not having collected within the term allowed by his warrant) the bills taken by the town and collected through another collector under R. S. c. 6, §§ 103, 104, 120, 121.</p> <p>All remedies for collection remained in force after Hall’s delinquency. Bassett v. Porter, 4 Cush. 488. Hartland v. Church, 47 Maine, 169. As between the town and these sureties, the town was bound to take this course, and not attempt to collect the gross amount of sureties who are powerless to coerce the collector. Nearly all the uncollected taxes are now collectable.</p> <p>Actual damages only can be recovered on bonds except when the statute otherwise provides. Clifford v. Kimball, 39 Maine, 413. Baton v. Ogier, 2 Greenl. 46. Sargent v. Pomeroy, 33 Maine, 388. Houghton v. Lyford, 39 Maine, 267. Carpenter v. Boody, 1 Hilt. (N. Y.), 465. Lowell v. Parker, 10 Met. 309. Scarbord v. Parker, 53 Maine, 252.</p> <p>Much of the loss resulted from the negligence of the plaintiffs.</p> <p>The bond for 1860 was not approved by the selectmen as required by R. S. of 1857, c. 6, § 85, and therefore is but a common law bond subject to chancery to the amount of actual^ damages, independent of all provisions of c. 6.</p> <p>Defendants were entitled to a trial by jury. The report is that of an auditor, and is governed by R. S. of 1857, c. 82, §§ 27 and 61. Begg v. Whittier, 48 Maine, 314.</p>

On Report. Assumpsit on an account annexed to the writ, of the following tenor : Messrs. W. & C. R. Milliken, Jan. 3d, 1867. Bought of Traub, Parkinson & Co., 64 boxes sugar,...........$2950.20. After the evidence was all in, the case was continued on report, —the court to enter such judgment as the law and evidence required.

On Report. Assumpsit on account annexed to the writ dated January 22, 1868. At the April term, 1869, the defendant pleaded in bar of the further. maintenance of the suit, a discharge in bankrupcy in the prescribed form, duly granted under the United States bankrupt act of 1867, and dated March 9, 1869, releasing him from all debts, &c., which existed on May 80, 1868, when he filed his petition.

- On Exceptions to tlie rulings of Cfoddard, J., of the superior court for this comity. Debt on a bond, dated Jan. 10, 1868, given by the defendants to the plaintiff, in the penal sum of $3000. The conditions of the bond appear in the opinion.

<p>On Exceptions.</p> <p>Assumpsit on a promissory note.</p> <p>The case is fully stated in tlie opinion.</p> <p>cited Franklin Bank v. Baehelder, 23 Maine, 60; Eittredge v. Warren, 14 N. H. 509; Davenport v. Tilton, 10 Met. 320; HowelV8 case, 21 Verm. 620 : Drake on Attachment, 435; United States Bankrupt Act of 1867, § 14; Bub. Laws of 1868, c. 157, 223; Lothrop v. Abbott, 21 .Maine, 421; United States Bankrupt Act of 1841, § 2; United States Bankrupt Act of 1867 (Avery & Hobbs’ Ed.), 108; Houghton v. Fastis, 5 Law Rep. 505 ; Downer v. Brackett, 5 Law Rep. 392 ; Peck v. Jenness, 7 How. 612.</p> <p>1. The replication is bad in form and substance, praying judgment whether the plaintiff ought to be precluded from having his “action against the said defendants,” instead of his action in rem against the goods attached.</p> <p>2. By United States bankrupt act of 1867, § 34, tbe discharge “ releases ” the bankrupt, and, when pleaded, is “ a bar ” to the action, hence judgment must be for the defendant in such case. And by R. S. of 1857, c. 81, § 33, “ when final judgment is rendered for the defendant, the attachment is thereby dissolved.” And this statute is not repealed expressly or by implication. 1</p> <p>3. By the provisions of the bankrupt act no lien by attachment continues so as to be enforced under process from the State courts. Attachments are liens to secure judgments recorded against defendants, and whatever defeats the judgment defeats the attachment, unless saved by some statute. Peck v. Jenness, 7 How. 623. The United .States bankrupt act of 1841, § 2, expressly preserved attachments. Not so with the act of 1867. ,</p> <p>The national act has suspended all State legislation touching the matter of bankruptcy. Sturgis v. Crowningshield, 4 Wheat. 122. Ogden v. Saunders 12 Wheat. 263. In re Bellows Peck, 3 Story, C. C. R. 428.</p> <p>The disposition of all liens under the bankrupt act is vested !in the district court of the United States. United States bankrupt apt of 1867, § 1. The State court has no jurisdiction. The hen ¡is continued, if at all, by force of the United States act, and the United States court should administer it.</p> <p>If the proper steps had been taken before the proper tribunal before discharge, whatever hen there was could have been enforced. After discharge, the State court cannot modify its effect. Pkc parte Poster, 2 Story, 157.</p> <p>A State court once having had jurisdiction, may continue to entertain it for the purposes mentioned in § 21, even after the institution of bankrupt proceedings; but the enforcement of a hen by attachment is not one of the purposes mentioned.</p>

On Report. Assumpsit on two policies of insurance against “ loss or damage by fire.” Tbe appraised loss upon stock, consisting mainly of bristles and brushes manufactured and in process of manufacture, was $1,728.76 ; expense of moving, $115.90; and loss on tools insured by Republic Company, $58.80.

<p>On Report.</p> <p>Trover for six hundred and seventy-two bushels of corn.</p> <p>The case is sufficiently stated in the opinion.</p>

On facts agreed. In 1858, a saw-mill, owned in common by the defendants, Calvin Atwood and one William Moor, was destroyed by fire.

<p>On exceptions and motion.</p> <p>Assumpsit to recover the sum of $1,250 insurance on the vessel, .and $1,500 on the freight of the bark John Curtis.</p> <p>It appeared that the vessel was of 589 tons burden, and valued in the policy at the sum of $20,000. The freight was valued at ■ $8,000-</p> <p>No question was made as to the value of the plaintiff’s interest !in ;the vessel and freight, execution of the policy, proof of loss, or the reasonable commencement of the action.</p> <p>It appeared that in May, 1866, the bark, properly manned and seaworthy, sailed in ballast from New Orleans to Havana, where she effected a charter, wherein it was agreed that she should go to Turk’s Island, and take thence a cargo of salt to Boston, or some port adjacent thereto.</p> <p>That while on her passage to -Turk’s Island, in fulfillment of her charter-party, she encountered a hurricane, which continued thirty-six hours, during which she was thrown down on her beam-ends, and, in order to allow her to come up bead to tbe wind, ber fore-top-mast was cut away, which carried with it the foretop-mast head, with the foretop-gallant-mast, and all the spars, sails, and rigging connected therewith; that her stern windows were driven in, her sails split, and blown out at the gaskets, the jib-boom sprung, bowsprit started, maintop-mast cross-trees split, rudder broken, fifty-five feet of her starboard bulwarks carried away, all her spars and rigging aloft more or less injured, and the vessel badly strained by violence of the sea.</p> <p>That after the storm abated, she, in this disabled condition, strained, dismasted, and leaking, made the nearest port; that when off Nassau, the condition of the sea prevented her crossing the bar, and while mailing her way to the leeward of the island, for anchorage, she misstayed, and went upon a coral reef, about five miles from shore; that the master obtained assistance; that she lay on the reef five days, pounding heavily, when she was got off by wreckers, and towed into Nassau.</p> <p>That during the time she lay on the reef, her remaining masts jumped, her decks rose and fell with the tide, she was chafed and broomed, her keel worn off, her timbers started and gaged, her copper torn, twisted, and wrinkled, her seams opened, and her sheer and shape changed.</p> <p>That the master called a survey; that no tenders were made, or complete estimate for repairs submitted; that survey were of the opinion “ that owing to the size of the vessel it would be impossible to do anything with her bottom at Nassau,” and advised the captain to “ obtain tenders and estimates, to be laid before the owners, or whoever else it may concern; ” that the master took the steamer for the United States, arriving home on Friday, October 27th, when he learned that the owners had abandoned to the underwriters October 24th, of which fact they informed the master, and declined having anything more to do with the bark; that they did not inform the master who the underwriters were ; that the master consulted an experienced ship-master and ship-owner, and returned to Nassau by the return steamer, when and where he called another survey of experienced men, who made a survey, obtained tenders and estimates, by which, vouched for in the sworn testimony not only of those' who made them, but by many other witnesses, it appeared that the cost of repairs to the bark would have been over twenty thousand dollars in gold; that the bottom of the vessel could not be repaired without taking her out upon the dry dock at Nassau; that no prudent man would make a voyage, at that season, to any other port, in a vessel so injured; and that repairs were difficult and expensive at Nassau.</p> <p>That the survey unanimously recommended a sale of the bark at public auction; that the master, in a foreign port, having no instructions from the underwriters, with no funds to repair, sold her, after due notice in the public papers, to the highest bidder.</p> <p>That she was first purchased by Sawyer & Menendez, of Nassau, with a view of breaking her up; that afterwards, the'hulk was purchased by one Saunders, of Nassau, temporarily repaired, sent to Liverpool Avith a cargo of cotton, and there sold; that the hulk Avas sold in Nassau for $810 in gold; that Saunders repaired her in Nassau and Liverpool, to the amount of $7,735.46; that she was sold in Liverpool for $6,292 in gold.</p> <p>It also appeared that on Oct. 24, 1867, the plaintiff abandoned the vessel, then in Nassau, to the underwriters.</p> <p>There Avas some verbal testimony draAvn from the master on cross-examination, tending to show that he put a bottomry bond on the bark while in Havana; but the testimony was seasonably objected to by the plaintiffs. There was introduced by the defendants, also, the deposition of the United States consul at Nassau, containing a copy of an alleged indorsement upon the bark’s register of the bond mentioned, which was seasonably objected to by the plaintiffs.</p> <p>The verdict was for the plaintiff.</p> <p>The defendants alleged exceptions to the ruling,</p> <p>1. That the plaintiff was entitled to recover as for a total loss if the jury were satisfied that the sale by the master was justifiable under the circumstances of the case as proved.</p> <p>2. That the plaintiff’s right to recover, as for a total loss, is resisted by the defendants on another ground. It being in proof that there was what was called a bottomry bond on the vessel, the defendants contend that the plaintiff could not abandon. I instruct you that there is nothing in the evidence to justify you in deciding against the plaintiff’s right to recover upon that ground.</p> <p>3. And also to the refusal of the judge to give the following-instruction requested by the defendants, viz.: That where the master, through necessity, sells the vessel after an abandonment by the owners, such sale does not constitute a total loss under the policy, as between the insured and the insurers.</p> <p>The defendants, also, filed a motion praying that the verdict be set aside as being against law and the -weight of evidence.</p> <p>contended that the evidence failed to show that the sale was necessary, and cited New England Go. v. brig Sarah Ann, 13 Peters, 387, 401; Ball v. Eranklin Ins. Go., 9 Pick. 466, 478; Pike v. Batch, 38 Maine, 302; Stephenson v. Piscataqua E. M. Ins. Go., 54 Maine, 55.</p> <p>In support of the exceptions, the defendants contended that the positions of loss by abandonment and that by necessary sale, are inconsistent with each other. If the abandonment was valid, the loss was total to the plaintiff on October 24, after which he had no interest to be affected by the sale. The master was no longer his agent, and whether the sale -was necessary, was a question which could arise only between the master and insurers, or between the insurers and purchaser.</p> <p>That question can arise between the owners and insurers only upon the assumption, that the damages did not exceed fifty per cent, and that the abandonment was not valid ; and on that assumption, the sale, even if justifiable as between the master and owners, does not constitute a total loss under the policy.</p> <p>The necessity was created by the owners’ refusal to furnish funds to repair; and they cannot thus convert a partial loss into a total loss, (xreély v. Tremont Ins. Go., 9 Cush. 415. Orrok v. Gommonwealth Ins. Go., 21 Pick. 426. Hally. Ocean Ins. Co., 21 Pick. 482.</p> <p>The bottomry bond destroyed the right to abandon. Gordon v. Mass. F. f M. Ins. Co., 2 Pick. 249, 260.</p> <p>The plaintiff can recover nothing for loss of freight. His loss was not occasioned by the perils of the sea, but by the voluntary neglect or refusal of the master and owners to carry out their contract.</p> <p>It is only freight which the insured have been prevented from earning by the perils insured against, that the insurers contract to pay. Moss v. Smith, 67 Eng. C. L. 93. Clark v. Mass. F. f M. Ins. Co., 2 Pick. 104.</p> <p>Where loss on the vessel is partial, nothing can be recovered for loss of freight. It matters not if the damages exceed fifty per cent, if the owners have lost right to abandon and are obliged to settle with insurers as for a partial loss.</p> <p>There should have been an abandonment of freight which the law, and not the policy, regulates.</p> <p>cited Gordon v. Mass. F. <$• M. Ins. Co., 2 Pick. 263 ; Mutual Safety Ins. Co. v. Cohen, 3 Gill, 459 ; Fuller v. Kennebec Ins. Co., 31 Maine, 325 ; PHnce v. Ocean Ins. Co., 40 Maine, 481; Stephenson v. Piscataqua Ins. Co., 54 Maine, 55; Butler v. Murray, 30 N. Y. 88.</p> <p>On the necessity of hypothecation. 1 Pars, on Mar. Law, 412; Abbott on Shipping, 210, and cases infra; 2 Dali. 194; Curtis, Merchant Seamen, 176; The Aurora, 1 Wheat. 96; 9'Johns. 29; The Packet, 3 Mason, 255 ; Huzzy v. Huzzy, 2 Wash. C. C. R. 145. Keith v, Murdock, 2 Wash. C. C.|R. 297; Fontaine v. Col. Ins. Co. 9 Johns. 29; Bucher v. Conyngham, 2 Pet. Adm. R. 208; Gibbs v. The Texas, Crabbe, 236; 2 Pars. Mar. Ins. 119; Carter v. Am. Ins. Co., 7 Conn. 564; Buckman v. Com. Ins. Co. 5 Duer, 342; Bryant v. Com. Ins. Co. 6 Pick, 131; 2 Phill. on Ins. 342, § 1630; Graves v. Wash. Ins. Co. 12 Allen, 394.</p>

On exceptions and motion. Case for injuries alleged to liave been received by Natban Webb, the plaintiff’s intestate, on the 28th of March, 1867, while “lawfully passing with his j'igger drawn by two horses, along the public street and highway in Portland, leading from Portland bridge across the railroad track of the defendants, into Canal street.” O. 0.

On REPORT. Assumpsit on a policy of insurance against fire. After the evidence was all in, the case was withdrawn and reported to the full court who were to determine the case according to the rights of the parties upon the law, and so much of the evidence as was legally admissible. cited Pub. Laws of 1862, c. 115, § 2; Hutchinson v. Western Ins. Co., 21 Missouri, 101; Conway T. Co. v. Hudson B. Ins. Co., 12 Cush. 144; Loring v. Manf. Ins.

<p>On exceptions to the ruling of Cfoddard, J., of the superior court for this county,</p> <p>The case is sufficiently stated in the opinion.</p>

<p>The funds of a corporation, whenever they accrued, are to be distributed among such as are its stockholders when the dividend is declared. '</p>

<p>On facts agreed.</p> <p>Debt under R. S. of 1857, c. 82, § 15, to recover the penalty provided in the Special Laws of 1821, c. 74, § 7.</p>

<p>On Exceptions to the ruling of Ooddard, J., of the superior court for Cumberland county, and motion in arrest of judgment.</p> <p>Indictment alleging that Orsamus Symonds, of Casco, in the county of Cumberland, laborer, on the fourteenth day of September, in the year of our Lord one thousand eight hundred and sixty-eight, at Casco, in said county of Cumberland, at the election of State and county officers, then and there in the town of Casco, in the county aforesaid, he the said Orsamus Symonds, then and there having no legal right to vote in said town of Casco, knowingly did vote, he the said Orsamus Symonds, then and there well knowing that he then and there had no legal right [to vote in said town, against the peace of said State, and contrary to the- form of the statute in such case made and provided.</p> <p>At the trial it was claimed on the part of the government that the respondent was a deserter from the United States army, and thereby had forfeited his right to vote by virtue of § 21, c. 79 of the act of congress of March 2, 1865.</p> <p>In order to prove the desertion, a government witness was permitted, against the seasonable objections of the respondent, to testify that the respondent had admitted to him that he was a deserter.</p> <p>The captain of the company to which the respondent belonged was called as a witness, and produced what purported to be the original roll of the company. It appeared in evidence that the witness had succeeded to the command of the company after the respondent had left. The officer, whose duty it was to make and keep the roll, was not produced. The introduction of the paper in evidence was seasonably objected to, but admitted.</p> <p>The jury found the respondent guilty, and he alleged exceptions to the rulings admitting the testimony mentioned.</p>

<p>Where this court has jurisdiction of the parties and subject-matter in a writ returnable thereto, and the ad damnum is fixed at a sum below the jurisdiction of this court, but within the exclusive jurisdiction of the superior court, the ad damnum may, before trial, be increased, so as to bring the action within the jurisdiction of this court.</p>

<p>On exceptions to the rulings of Goddard, J., of the superior court in and for the county of Cumberland.</p> <p>In addition to the facts stated in the opinion the judge of the superior court found that on June 5th, the defendant sued one Merrow, and two others in trespass for the value of the stolen mackerel, which suit is still pending in the supreme judicial court for' this county.</p> <p>That D. T. Chase, acting as the plaintiff’s agent, agreed with the defendant on April 30, that the mackerel were to be delivered to the defendant when he wanted them; that the defendant did not see them nor have the key of No. 10 until after May 9th, and that no bill of the mackerel was presented to the defendant after May 9th. That D. T. Chase, told the defendant that the firm had no use for No. 10, and the fish might lie there as long as the defendant wanted them, and that the defendant should not be hurried about taking them away or for the payment.</p> <p>That D. T. Chase, on May 16th, sent to the defendant’s counting-room the key of No. 10, with a message to take the remainder of the fish if he wanted them; but the key was returned without having been used. That D. T. Chase was absent from his counting-room May 21st, and his son consented that the defendant might take the remainder of the fish, then being fifty-eight barrels and four half-barrels ,• and that thereupon the defendant returned the key to the plaintiff’s son.</p> <p>The judge further found as matter of fact that the barrels and half-barrels stolen had not been delivered to and accepted by the defendant at the time they were stolen.</p> <p>As matter of law the judge ruled,</p> <p>I. That by the terms of the contract as embodied in the receipt of May 1, 1868, the risk on the mackerel as against thieves, or as regards such taking as is proved in this case, was to remain upon plaintiff.</p> <p>IT. That plaintiff is bound by said receipt of his agent, as fully as ‘if signed by himself.</p> <p>III. That the commencement of the suit of June 5th, and subsequent action of this defendant thereon, does not estop him from maintaining this defense.</p> <p>IV. That this action cannot be maintained upon the foregoing facts.</p> <p>To these rulings the plaintiff alleged exceptions.</p> <p>1. The title and risk of the fish passed to the defendant. Every element of a complete sale existed.</p> <p>If the effect of the .receipt of May 1st was, when given to prevent the risk passing to the defendant, his subsequent acts were sufficient to change the risk, and he is estopped by his acts from setting up this defense against his vender. Cragin v. Carleton, 21 Maine, 492.</p> <p>2. As between the vender and vendee, no actual delivery is necessary to complete the vendee’s right of property in the article sold. And the risk follows the property; and does not depend upon possession. Whitehouse v. Frost, 12 East, 613. Chapman v. Searle, 3 Pick. 38. Hatch v. Lincoln, 12 Cush. 31. The receipt of May 1st, cannot be construed as a contract limiting or controlling the plaintiff’s rights. The memorandum of risk in the receipt was made by D. T. Chase to limit his personalliability, and formed no part of the contract of sale. Davis v. Moore, 13 Maine, 424. It could control the change of risk when the title to the property passed.</p> <p>The risk passed by operation of law, and the presumption which sometimes arises in covenants and conveyances, that the designation of certain property operates to exclude all other property of the same class from the effect of the instrument of conveyance, does not apply in this case. The conduct of the defendant, after the receipt was given, effectually rebuts such presumption.</p> <p>Then, if the receipt was a contract of sale, and the strictest doctrine of the rule was invoiced, it would not be applicable to this case. The risk of fire and thieves were not of the same class, and the designation of one risk would afford no presumption that the parties intended to exclude the other.</p> <p>The conclusions of the court below, on matters of fact, are conclusive, and the exceptions to the foru* rulings embrace all that is before this court.</p> <p>The fifty barrels and two half-barrels in question “ had not been delivered to and accepted by the defendant, at the time of the taking, May 9-10.” This fact is proved by the judge and is conclusive.</p> <p>The plaintiff retained the property and possession until removal. The contract of sale was never executed.</p> <p>The rulings were correct.</p> <p>1. The mackerel were to remain as the plaintiff claimed, at the risk of the contemplated purchaser “ as regards fire.” All other risks were to remain upon the owner and prospective vender. The receipt of May 1st establishes this on the principle that inclusio unius exelusio est alterius.</p> <p>2. The plaintiff is bound by the acts of his agent in the negotiation, and by his receipt in furtherance of the sale.</p> <p>3. The commencement of the suit against Merrow et als., was an experiment for the benefit of the plaintiff as Avell as the defendant. If anything should be realized therefrom, it would be for future disposition.</p> <p>4. The plaintiff never having sold or delivered the property in question to defendant, and the latter never having received it, this action cannot be maintained. Waldron v. Chase, 37 Maine, 414.</p> <p>In that case there was an admitted sale and payment and delivery according to a custom proved. But not so in this case. And here was no proof that the delivery of a part was intended by the parties to be a delivery for the whole. But the contrary was found by the judge of the superior court to be the fact. Pratt v. Chase, 40 Me. 269. Dixon v. Yates, 5 Barn. & Ad. 313. Burney v. Poynlz, 4 Barn. & Ad. 668. Simmons v. Swift, 5 B. & C. 857.</p> <p>The terms of the receipt of May 1st show that it was not the intention to make the contract of sale absolute and complete.</p>

<p>The riglit, to set off one demand against another is wholly regulated hy statute.</p> <p>A claim in set-off, to he available, must bo due and ]>ayable when the plaintiff’s action was begun; and the fact that the plaintiff has assigned his property for the benefit of his creditors, does not modify or change the rights of the parties.</p> <p>A mere liabilty as indorser, existing at the time when, but not discharged till after the plaintiff commenced his action, is not allowable in set-off.</p> <p>Otherwise, money received by the plaintiff for his authorized transfer of the defendant’s shares of stock in a corporation prior to the commencement of the action.</p> <p>Also, for amonnt of drafts drawn by the defendant for the accommodation of the plaintiff, and paid by the former prior to the commencement of the action.</p> <p>Also, for amount paid by the defendant prior to the commencement of the action, to redeem his shares of stock in a corporation, pledged by the plaintiff under a power of attorney from the defendant, to a savings bank as collateral for money loaned to the plaintiff.</p> <p>Also, for items paid prior to the commencement of the action, for protest.</p>

On Exceptions to the ruling of Goddard, J., of the superior court in and for the county of Cumberland. The action was tried by the judge without the intervention of a jury, subject to exceptions. Before the trial the defendant’s attorney withdrew his appearance for B. B. Miller, one of the defendants, who was thereupon defaulted.

On pacts agreed. Assumpsit on-a policy of insurance upon a cargo of molasses and sugar. The terms of the policy sufficiently appear in the opinion. The brig, named in the policy, sailed from Matanzas for Portland, on the 19th of Feb., 1866, with a cargo of molasses and sugar, consisting of 406 hhds., eighty-seven tierces and six barrels.

<p>On report.</p> <p>Case for tbe obstruction of a way across the defendant’s farms which the plaintiff claimed the right to use.</p> <p>The facts upon which the decision is based are sufficiently stated in the opinion.</p> <p>The deed of John Trundy expressly describes the cove to which the plaintiff has his right of way; as the deeds under which both parties claim constitute but one transaction, they must be construed together. And as the way reserved in the John Trundy deed is not the one obstructed by the defendant, the plaintiff cannot complain, unless he acquired rights under the deed from Jordan to Keazer.</p> <p>But that was merely a deed of confirmation confirming what rights Keazer already had. As he had no rights to the way in question, he acquired none by that deed.</p> <p>Again, Jordan was only mortgagee. Holding in trust and conveying without consideration, nothing passed by his deed. As to all but Jordan, Trundy was the owner of the fee.</p>

On REPORT. Assumpsit on a negotiable promissory note, dated February 18, 1866, signed by Ervin R. Ellis and W. K. Bickford, promising that “ on the first day of August, after date, as copartners ” “ to pay to the order of Isaac Barnum, two hundred and fifty dollars, value received.” The note was indorsed by the payee.

On exceptions to the ruling of Goddard, J., of the superior court for the county of Cumberland. Case for an injury caused on the evening of December 24,1868, at the foot of Graves’ Hill, in Westbrook, by being thrown from a sleigh by the covering stones of a culvert across a highway leading to the city of Portland.

On facts agreed. Case for refusing to carry tbe plaintiffs’ express freight from Bangor to Portland, on one of their passenger trains. The writ is dated Sept. 5, 1868. Held: that they were liable for gross negligence. They are agreed, that carrying under a contract for an express company, did not make the navigation company a common carrier.

On exceptions and motion to set aside the verdict as being excessive. Trespass for an alleged assault by a servant of the defendants, in one of their first-class passenger cars, upon the plaintiff, a respectable and well-known member of the legal profession, having been county attorney, several times State senator, president of the senate, and representative of the country abroad, and being, at the time of the trial, j’ndge of the superior court for the-county of Cumberland.

<p>A person who has conveyed land hy deed of warranty may acquire a subsequent title thereto hy disseisin.</p>

Bill in equity. The case is sufficiently stated in the opinion. I. The bill proceeds upon the ground of fraud. It only prays for injunction as incidental to general relief. II. Nitcher never had the title, therefore levy would be nugatory. Bussell v. Lewis, 2 Pick. 508. Corey v. Gf-reen, 51 Maine, 114. Low v. Marco, 53 Maine, 45. BeBrisay v. Hogan, 53 Maine, 554.

On REPORT. Trespass quare clausum for breaking and entering the plaintiff’s close in Biddeford, trampling down the grass, breaking down a bridge, driving logs in and upon the stream of water running through the plaintiff’s close, and breaking down and injuring the banks of said stream.

<p>On report.</p> <p>Assumpsit to recover taxes claimed to have been illegally assessed in 1866. The taxes were paid under protest.</p> <p>The only questions raised and the material facts relating thereto, are sufficiently stated in the opinion. *</p> <p>That the cases referring to application for abatement were unlike the case at bar.</p> <p>The act of 1865, c. 319, not designed to repeal R. S. c. 6, § 53, and act of 1862, c. 318, so far as they made the list “ a rule ” and to be “ taken as true.” It simply meant that if the assessors discovered that the tax-payer had other specific property not on the list, and that his list was so far false, they might add such property specifically, and tax him for it.</p> <p>“ Other personal property, $15,000,” is not “ invoice ” or “ valuation ” of property to be assessed. R. S. of 1857, c. 6, § 59.</p> <p>It is not a case of overvaluation, but dooming, based upon nothing.</p> <p>It is “ error and mistake ” of the assessors, and hence makes void the assessment; and plaintiff is entitled to remedy under R. S. of 1857, c. 6, § 98.</p>

<p>On REPORT.</p> <p>Assumpsit on a policy of insurance against fire.</p> <p>Tbe case is fully stated in tlie opinion.</p>

On exceptions. Assumpsit on a promissory note, and on an account annexed. The action was entered at the September term, 1866, when the defendant appeared, and in writing offered to be defaulted “forthe amount due upon the note.” At the January term, 1867, the action was referred by a rule of court.

<p>. On report.</p> <p>Assumpsit on a premium note.</p> <p>The ease is sufficiently stated in the opinion.</p> <p>The assessment was duly ordered and made. Act of Inc., § 209. Peñol. Ken. B. R. Co. v. Dunn, 39 Maine, 598. Jones v. Sis-son, 6 Gray, 288. New Png. P. Ins. Co. v. Belknap), 9 Cush. 140. Peoples Pquit. M. Pire Ins. Co. v. Ballitt, 7 Allen,-235.</p> <p>This hind of assessment is necessary in mutual companies.</p> <p>It is presumed that the directors acted in good faith. They have determined that the estimated ainounts were reasonable, just, necessary. Them judgment and determination are conclusive until impeached. What amount was estimated for “ bad debts,” for “ interest,” for “ expenses,” or for “ cost of collection,” does not appear in the objection. Who can say either item was excessive ?</p>

<p>Ho appeal lies from the judgment of a trial justice, rendered against the defendant by his express consent.</p>

On report. Writ or entry. On Nor. 24, 1855, one Moses Morrill owned the premises in controversy, when he conveyed them to Leander Bootliby, the defendant’s husband, and at the same time took back a mortgage of the same premises to secure the payment of $900 as therein provided.

On report. Assumpsit for soldier’s bounty. The case is sufficiently stated in the opinion. 1. The article in the warrant was sufficient for the vote of August 23d. R. S., c. 3, § 5 requires “ the business to be acted upon” only to be stated in distinct articles. In Blackburn v. Walpole, 9 Pick. 97, the “ subject ” to be acted on was all that was necessary to be stated in the article.

<p>On Exceptions and motions.</p> <p>Assumpsit, on a special contract for cutting and liauling timber from “ Dartmouth College Grant,” in New Hampshire, and driving a portion of it into the defendant’s boom in Milan, New Hampshire. The essential part of the contract, together with the instructions, may be seen in the opinion.</p> <p>The writ contained a special count on the contract, and also a count on an account annexed, embracing, along with the items of cutting, hauling, marking, and driving from Dartmouth College Grant, 4,090,136 feet spruce timber into Milan boom, at seven dollars per M.; 274,988 feet pine timber, at eleven dollars ; cutting, hauling, marking, and landing 30,000 feet pine timber on Diamond rivers and Abbott brook, at ten dollars; cutting, hauling, marking, and landing 1,100,000 feet of spruce, at same place, at six dollars per M.; sundry charges for driving old logs from different localities on the Androscoggin river and its tributaries, among’ which was an item of “ $160 for driving Winslow & Foster timber into Milan boom.” The debit side of the account amounted to $44,769.24. The credit, embracing numerous items of cash and supplies, etc., amounted to $33,782.63, leaving a balance of $10,976.61. The credit side of the account did not contain an item of $1000, ordered and sent by express in January, 1867, or of $490.24 paid by the defendants foretell on the timber actually driven.</p> <p>It appeared on the part of the plaintiffs that iff December, 1866-7, they put 100 oxen and 150 men to hauling, cutting, marking, and landing pine and spruce timber on the Abbott brook, Dead Diamond, and Swift Diamond rivers, tributaries of the Androscoggin; that they worked until March 20, 1867, when their teams and men were taken out; that they agreed to drive out certain old logs belonging to the defendants, and situated at different places along with their new ones, at the rates charged; that before the streams opened they, with thirty drivers, went to the landings prepared to drive; that there were no rains to raise the water to a driving pitch, and the snow wasted away without materially raising the streams; that they cut, hauled, and drove the amounts charged, and cut, hauled, and properly landed the several amounts charged in their account; and drove the old logs at a fair price, except the item of $160 concerning which there was no contract; and that about two-thirds of all that was cut by plaintiffs, were driven by them to the defendants’ boom. Only a portion of the items was contested by the defendants. There was evidence introduced by the defendants, tending to show that the plaintiffs agreed to drive the old timber at cost; that too much timber was landed on Abbott’s brook, more than could be driven in such a stream; and that the plaintiffs, having refused to drive after season of 1867, the defendants hired others to drive what the plaintiffs left. The defendants also introduced evidence as to the cost of driving these streams.</p> <p>The jury returned a verdict for the plaintiffs for $9,329.91, which the defendants' moved be set aside as being against law,</p> <p>’ and the weight of evidence, and the "defendants also alleged exceptions to the instructions.</p>

<p>•In arguing exceptions to a master’s report, finding that, to entitle the assignee of a mortgager in a bill in equity against the assignee of the mortgagee to redeem the mortgage conditioned for the maintenance of the mortgagee, he shall pay a certain sum incurred for support since the recovery of a conditional judgment-on the mortgage, by the mortgagee against the mortgager; the complainant cannot urge that the respondent is estopped by the judgment, unless such objection is specially raised by the exceptions.</p> <p>Nor, where by the terms of the condition the mortgagee was to be maintained upon the mortgaged premises, can the complainant object to a reasonable allowance by the master, incurred for the support of the mortgagee off from the premises, when the complainant had neglected to furnish means for his support on them.</p> <p>Nor, for support accruing after an assignment by the mortgagee to one of the beneficiaries named in the condition, when such assignment was not made until a breach of the condition, nor until after an assignment by the mortgager to the complainant, who, with the mortgagee’s assent, had undertaken, but failed to fulfill the condition of the mortgage.</p> <p>Such an assignment by the mortgagee, is not a release and discharge of his claims for support under the condition of the mortgage.</p> <p>Such assignee of the mortgagee may claim for the future support of the mortgagee and other beneficiaries named in the condition, on the failure of the assignee of the mortgager to furnish it.</p> <p>Nor can the complainant object to an allowance for support of the mortgagee, actually incurred by the respondent after she had assigned for a time the legal title in trust for the beneficiaries named in the condition.</p> <p>Nor can the complainant object that the respondent is not charged with the rents and profits after the buildings on the premises were burned, and the complainant had collected the insurance thereon, and placed a tenant of his own] on the premises.</p> <p>Under what circumstances interest may be allowed on the sum found due by the master.</p>

On REPORT. Case for infringing certain water rights of the plaintiff, and erecting an excelsior mill in such proximity to the plaintiff’s grist-mill as to darken it, prevent repairs, reconstruction, or enlargement of it, &c. On the 23d of July, 1835, Winslow Hall, owning a mill-privilege, consisting of a saw-mill situate on a dam across the outlet of Buggermit pond, near its mouth, the dam at the mouth, and the surrounding land, by his deed of warranty, of that date,…

On report. Case to recover, under R. S., c. 86, § 77, the amount of a judgment recovered at the November term, 1859, of this court, for this county, by this plaintiff in an action against one Dean, in which action, Dunham, the defendant in this action, was summoned as trustee of Dean, and, as the plaintiff alleges, upon his examination as such trustee, “ wilfully and knowingly answered falsely.” The writ was dated April 16, 1867.

<p>On exceptions.</p> <p>Appeal from the decision of county commissioners.</p> <p>On Sept. 4, 1864, one Samuel Houghton, owning certain improved land in Byron, petitioned the selectmen to lay out a town-way from his land to a certain town-way already existing in Byron. After due proceedings thereon, the selectmen duly laid out the way and made the proper report of their acts ; and on the 15th of October following, the town, at a legal meeting duly called, and under a sufficient article, refused to accept the way laid out as above stated. Thereupon, the county commissioners, after due proceedings had, upon the petition of Houghton, determined and adjudged that public convenience and necessity required the location of said town-way, that the town unreasonabty refused to accept said way, that the same should be laid out and accepted, and directed that their proceedings be recorded by their own, and the clerk of the town.</p> <p>Thereupon, the inhabitants of Byron, at the September term of this court, 1867, entered an appeal from the decision of the county commissioners, a committee was duly appointed, which, after duo notice and proceedings made and returned their report wholly reversing the decision of the county commissioners.</p> <p>To the acceptance of the report of the committee, John Houghton, the original petitioner, appeared and objected, alleging that the statute did not authorize an appeal from the decision of the county commissioners, in such case, but that their adjudication and decision in the premises were conclusive.</p> <p>The presiding judge overruled the objection, and accepted the report of the committee ; and thereupon Houghton alleged exceptions.</p>

<p>On report.</p> <p>Real action for the recovery of the possession of certain land described in. the writ, and for rent thereof. The writ set out an estate in fee in the plaintiff.</p> <p>The plaintiff put in a -judgment recorded in his own favor in March, 1864, against Sarah Brister, and a levy of the execution issued thereon upon the premises, the appraisers’ certificate describing the estate set off as the “ life-estate of Sarah Brister,” “ to hold to said creditor, his heirs and assigns, for and during the natural life of the said Sarah Brister.”</p>

<p>On report.</p> <p>Debt founded upon the latter clause of § 5, c. 37 of the Public Laws of 1858, to recover money paid by the plaintiffs to the superintendent of the State reform school, for the clothing and subsistence for thirty weeks of one Farwell, a hoy between the age of eleven and sixteen years, convicted of an assault and battery, before the justice of this court, in and for this county, at the April term, 1867, and by the court sentenced to the reform school during his minority, and committed to the reform school in pursuance of the sentence on the 6th of May, 1867, he then being a resident of the town of Jay, but liaving a legal settlement in the town of Gray.</p> <p>All the facts, essential to a recovery, were proved. And the only question raised was, whether the latter clause of §; 5, c. 37 of the Public Laws of 1858, was still in force.</p> <p>Section o, c. 87 of the Public Laws was repealed by c. 57, of 1861. The institution is a school and not a poor-house, and the inmates scholars and not paupers. Hence, the town where the hoy was a scholar, and hot where he had his pauper settlement, was intended by the legislature to be responsible for his clothing and subsistence.</p>

<p>On REPORT.</p> <p>Assumpsit on a promissory note by tbe payee against tbe maker.</p> <p>The plaintiff having an equitable title to a certain parcel of land in February, 1867, caused it to be conveyed, to one Jennings, as security for one hundred and eighty-eight dollars, whereupon, on the same day, Jennings gave the plaintiff a bond conditioned to convey to him, by quitclaim deed, the land, on the payment within one year of the amount above mentioned, and interest.</p> <p>Subsequently, and before the expiration of the year, to wit, on the 16th of May, 1867, the plaintiff executed and delivered to the defendants a bond asserting that the plaintiff “is possessed and seized in fee ” of the land therein described and conditioned; that the plaintiff will convey the same to the defendants on the payment by them of $700, according to the tenor of several promissory notes given by the defendants in consideration of the bond, the first of which is the one in suit.</p> <p>The bond from <1 ennings to the plaintiff was, while in force, conditionally assigned to one Turner, and the condition having been fulfilled, the bond reverted to the plaintiff, and expired in February, 1868. Thereupon Jennings claimed a forfeiture, but waived it, and on the 30th of June, 1868, renewed the bond for one year.</p> <p>It appeared that the plaintiff had no other title to the land, that none of the notes given by the defendants to the plaintiff had been paid, and that at the trial the defendants tendered the bond to the plaintiff, which was refused.</p> <p>The full court to award judgment in accordance with the law and facts.</p> <p>The note was given in consideration of the bond. A promise is a good consideration for a promise. 1 Pars, on Con. 373. Met. on Con. 182. The promise is not for the land, but for a promise. The estate is not the moving cause, as in Bice v. Goddard, 14 Pick. 296. But the promise, as in Trash v. Vinson, 20 Pick. 105. lleed v. Cummings, 2 Greenl. 82. Smith v. Lincoln, 15 Mass. 72. Lloyd v. Jewell, 1 Greenl. 352. 1 Pars, on Con. 383-4.</p> <p>Jennings simply held the land for security of a comparatively nominal sum, and the plaintiff had the right to dispose of it at any time by paying off Jennings.</p> <p>The having the title at the time of making the bond is a nonessential. Trash v. Vinson, supra. 2 Pars, ón Con. 266. The inducement was not that the obligor was seized of the land, but his promise to convey. Pratt v. Philbrooh, 33 Maine, 22. Daniel v. Mitchell, 1 Story, 172. The words “ possessed and seized in fee ” do not change the contract, whether they are in or out of the bond. If the false representation is not the inducement, it will not avoid the contract. ' Bronson v. Wiman, 8 N. Y. 182.</p> <p>It cannot support charge of fraud. It was put into the bond by the scrivener as mere matter of form, both parties knowing at the time what the real facts were.</p> <p>The principle of caveat emptor applies. The common law does not require the vender to disclose defects which are open to the observation of botli parties. Bean v. 'Herrick, 12 Maine, 262. Prentiss v. Buss, 16 Maine, 30. Jeremy on Eq. 385. Sibbons v. Eddy, 4 Mason, 414. Pratt v. Philbrooh, supra.</p> <p>“ The buyer of land is at his peril to see to the title.” Parley v. Freeman, 3 T. R. 56.</p> <p>The policy of the law is not to promote negligence, but reasonable diligence.</p> <p>The defendants did not rescind within a reasonable time. Stevens v. Mclntire, 14 Maine, 17. Pratt v. Philbrooh, supra.</p> <p>The representation was not -made with design to misrepresent a material fact.</p> <p>The defendant must rely on his bond for the performance of the agreement. Beed v. Cummings, 2 Grreenl. 82. Smith v. Sinclair, 15 Mass. 171; Greorge v. Stockton, 1 Ala. 136. Wood v. Morgan, 1 Morris, 179. Head v. Bowers, 23 Pick. 461.</p>

On exceptions. Appeal from a decision of the judge of probate for this county, wherein he decreed that Hattie C. Pulsifer, Benjamin T. Chase-, and Mary E. Chase were entitled to a distributive share of the estate of one Belinda Andrews, deceased, intestate.

On REPORT. Trespass quare clausum, wlieroin tlie plaintiff alleges that the defendants broke and entered liis close, and took and carried away eleven tons of hay, owned and possessed by him. The fee of the premises was admitted to be in the plaintiff. The quantity of hay taken was admitted to be 17,396 pounds.

On Report. Writ of error, alleging that in a judgment obtained before this court, in and for this county, on the first Tuesday of March, a. d. 1864, wherein the said Joseph S. Lambard was plaintiff, and the said Thomas Winslow and James R. Grant (plaintiffs in error) defendants, there occurred certain errors specified.

On exceptions. Writ op entry on a mortgage, dated Oct. 24,1866, and given by the defendant to one Coffee, to secure a negotiable promissory note, of the same date, for one hundred dollars, payable to Coffee or order, “in monthly payments of five dollars each, at the expiration of each and every month from the date ” thereof, “ and interest.” The plaintiff read the mortgage and an assignment thereof to himself, dated Dec. 24, 1866, duly acknowledged and recorded; and also the…

On report. Action against the defendant, clerk of this court, for issúing a writ of restitution and execution without authority. The case is sufficiently stated in the opinion.

<p>An action on a negotiable promissory note, indorsed by the payee in blank, may be brought in the name of any person who consents thereto, although the note is the property of an insolvent bank in the hands of receivers.</p> <p>If in. the trial of an action the defendant offered evidence in support of an account by him filed in set-off, and the question of allowance or disallowance was submitted to and passed upon by the jury, he is precluded from again offering proof in support of tlie same account in another suit, although the jury may have decided in the former suit not to allow it.</p>

On report. Debt on a .bond given under R. S., c. 113, § 16, by the defendants, to relieve George H. Bailey from arrest on mesne process brought against him by the plaintiff. The judgment in the original suit was recovered Dec. 23, 1868. Bailey did not attempt to disclose, but undertook to reduce the damages to a nominal sum. The evidence is sufficiently recited in the opinion.

On exceptions. Trespass for tlie mesne profits of a certain piece of land described in a written agreement hereafter mentioned, from Sept. 4, 1860, to Dec. 1, 1864. On Sept. 4, 1860, this plaintiff sued out a writ of entry against the defendant to recover possession of certain land described in the writ, which was duly entered in this court, and continued from term to term until November term, 1864.

On Exceptions. Case for injury occasioned by falling into an excavation near a public street. Tlie case is sufficiently stated in the opinion.

<p>In trespass for breaking and entering the plaintiff’s close and carrying away therefrom certain personal property, the unlawful breaking and entering constitute the gist of the action, and must be proved in order to maintain it.</p> <p>"When a party exceeds an authority given him in fact, as distinguished from an authority conferred upon him by law, he is only liable for the excess.</p>

<p>A tenant at will has no estate which is assignable.</p> <p>At the expiration of a tenancy, fixtures erected by the tenant go to the landlord, unless the tenant* before surrendering possession, lias removed tliem.</p>

On report. Assumpsit by the plaintiff as executor of the last will and testament of Timothy Woodward, deceased, to recover two hundred dollars, alleged to have been left with the defendant for investment, by the deceased. a The action was defended upon the ground, that the money sued for was the property of Mrs. Asahel H. Merchant, wife of the defendant, and daughter of the deceased, by virtue of a gift to her by her father in 1861, which was about three years before his…

On exceptions; Forcible entry and detainer tried before tlie municipal court of Hallowell, and 'brought to this court by appeal by the defendant.

On Exceptions. Assumpsit on account annexed. The writ was dated July 26, 1868. The plaintiff introduced evidence tending to show that on July-20, 1862, he loaned the defendant the sum of money mentioned in the account annexed to the writ, with an agreement on the part of the defendant that it was “ to be paid when called for and that he called on the defendant for payment of the same in a month or more, after the time of the loan.

<p>On REPORT.</p> <p>Assumpsit to recover $4,170.50 for taxes assessed to the defendants, as commissioners of the sinking fund of the Ken. & Port!. Railroad Company, under Public Laws of 1868, c. 160.</p> <p>The defendants relied upon Public Laws of 1869, c. 63.</p> <p>Public Laws of 1869, c. 63, § 2, is in violation of the constitution of this State, art. 1, § 11.</p> <p>The tax having been duly assessed and committed, a liability on the part of the defendants to pay it, was thereby created; and when the liability became fixed, the tax had become a debt from the defendants to the plaintiff.</p> <p>A tax is a debt sui generis, arising from an implied contract, and partaking also of the nature of a judgment, and as such it carries with it au obligation which the legislature cannot impair. 3 Bl. Com., 160. Bouv. Law Diet., Debt.</p> <p>A tax is recognized and provable as a debt, under the statute, for the settlement of insolvent estates. It may be collected by action, but generally under a collector’s warrant, which is in the nature of an execution.</p> <p>It is a debt of highest character, and its prompt collection so essential to the existence of the government that it cannot be subject-matter of set-off. Camden v. Allen, 2 Dutcher, 898. The parties stand in the relation of debtor and creditor. Multnomah Co. v. Oregon, 1 Oregon, 358. All taxes payable in money are debts. Rhodes v. O' Farrell, 2 Nevada, 60. But see, as precisely in point, Munroe Co. Savings Rank v. City of Rochester, 87 N. Y.</p> <p>Lane Co. v. Oregon, 7 Wall. 71; Pierce v. Boston, 3 Met. 520; Shaw v. Peckett, 26 Verm. 482, turned upon the construction of peculiar statutes.</p>

On Deport. Petition eor partition of a certain parcel of land described in the petition, situate in the city of Bath. Petition dated April 10, 1866.

<p>On exceptions.</p> <p>Attachment eor contempt, issued by an order of court of Nov. 24, 1868, returnable to the December term following, for not obeying a decree of the court entered up at the August term, 1868.</p> <p>The defendant filed an answer asserting that he was not “ in contempt of court in refusing to convey, to said Snowman, the land described in plaintiff’s bill, because, he says, at the time of issuing said decree, it was not in his power to convey said lands; that after the expiration of the time limited in his said bond to plaintiff, to wit, March 18, 1867, he became bound and obliged to convey the same to oiie Benjamin Saddler, on his complying with certain conditions, which he did; and afterwards, viz., Dec. 6, 1867, he conveyed the said premises to said Saddler, and before the making of said decree. That he never was notified or forbidden by the court, or by its authority, or by said plaintiff, from conveying said land to any person other than said complainant; and he is willing now to convey, except he is forbidden by law to convey property of which he is not the owner.”</p> <p>The remaining essential facts appear in the opinion, and in 55 Maine, 197, where the original case is reported.</p>

<p>On Exceptions.</p> <p>Indictment based on R. S., c. 17, § 1.</p> <p>Tlie jury returned a verdict of guilty, whereupon the defendants filed a motion in arrest of judgment, upon the ground, among others, because the indictment does not charge that the defendant corporation prevented the “ navigating said Androscoggin river.”</p> <p>The presiding judge overruled the motion, and the defendants alleged exceptions.</p>

<p>A seasonable levy of the execution on real estate attached on tlie writ, operates as a statute conveyance made at the date of the attachment.</p> <p>Such a title is superior to a mechanic’s lien for labor and materials, the earliest item of which is subsequent to the date of the attachment.</p> <p>If a judgment for a lien-claim on a house include labor and materials for painting a fence and varnishing carpets, the lien is thereby defeated.</p>

On report. Assumpsit. Writ dated May 22, 1867. The defendant was summoned as trustee of this plaintiff, on May 18,1867, in an action of trespass quare clausum, brought in the name of -Nathaniel Bry■ant, Jr., et ais. y. Charles C. Lanscott Samuel H. Puller, trustee.

On report. Debt on a bond to procure the release of this defendant, Madden, from arrest on a writ in favor of these plaintiffs, and against Madden, and one Mark O’Neil. The original action was assumpsit on a joint and several note signed by the defendants.

On Report. Case under R. S., c. 113, § 47. Writ dated July 7, 1868. It was objected by tbe defendant that upon the facts alleged, if proved, tlie plaintiff could not maintain the action.

On exceptions. Trespass against the defendant as a deputy-sheriff for taking certain property of the plaintiff on a writ against this plaintiff in favor of a third person, in June, 1867, which property the plaintiff claimed was, at the time of the taking, exempt from attachment. Writ is dated June 12, 1867.

On report. Case under R. S., c. 113, § 47 for knowingly aiding one Albert Williams in an alleged fraudulent transfer of Ms personal property to the defendant to secure it from Williams’ creditors. ' Writ dated Jan. 30, 1859. The transfer of property, alleged to be fraudulent, was made on August 2, 1865 ; at which time the plaintiff was surety, with other persons for Williams, on two notes of f1000 each, to the Second National Bank, Skowhegan, but had paid nothing on either.

<p>By virtue of Pub. Laws of 1863, o. 199, no tenancy at will shall be determined, unless thirty days’ notice in writing for that purpose is given by one party to the other, except in the cases therein enumerated.</p> <p>The bringing of a suit for use and occupation is evidence tending to show that the relation of landlord and tenant subsisted between the parties.</p> <p>If a landlord, without determining a tenancy at will, forcibly enter upon the demised premises ten days after rent-day, and hold them against the tenant, he thereby becomes a trespasser.</p> <p>A party to whom instructions are favorable rather than otherwise, cannot be aggrieved by them.</p>

On exceptions. Case for an injury alleged to have been caused by a defect in a highway in the city of Bangor.

On Report. Assumpsit for use and occupation of lands and buildings called “ Bangor Trotting Park,” fourteen months and three days from April 9, 1864, to June 22, 1865, at $500 per year.

<p>On exceptions.</p> <p>Assumpsit to recover a balance alleged to be due on a negotiable promissory note, given by one Pratt to the defendant, and by the latter indorsed to Bragg & Patten, or order, and by them to the plaintiff.</p> <p>The defendant contended that he indorsed the note for the accommodation of Bragg & Patten, of which firm the plaintiff was then a member, having sold the same for what the defendant owed Bragg & Patten on account.</p> <p>The defendant testified, that some fifteen or twenty minutes after he had settled with Bragg & Patten, and had delivered the note in suit to them, he, at their request, indorsed the note for their convenience.</p> <p>The plaintiff contended that the note was not delivered until after the defendant had indorsed it; and that the defendant voluntarily indorsed it without any request from the plaintiff.</p> <p>On this part of the case, the presiding judge instructed the jury that the indorsement made out a prima facie case for the plaintiff 5 that the defendant might show that the indorsement was made without consideration ; that if they believed that the note was not indorsed by the defendant when he first delivered it to Bragg & Patten, and received from them his account receipted, but was thereafterwards indorsed by him at Patten’s request, the defense would be made out, and the defendant entitled to a verdict; but if they were satisfied that the note was indorsed by the defendant prior to delivering it to Bragg & Patten, and receiving from them his account receipted, they would find for the plaintiff for the amount of the note less the partial payments indorsed.</p> <p>Against the plaintiff’s objections the presiding judge admitted, de bene esse, evidence of the consideration of the deed of the premises mortgaged, from Bragg to Sargent, and the defendant contended that whatever was received by Bragg should be accounted for as payment on the note.</p> <p>The presiding judge instructed the jury to disregard this evidence, and the defendant alleged exceptions.</p> <p>The remaining facts are sufficiently stated in the opinion.</p> <p>contended, inter alia, that the objection to the sale from Fiske to Bragg & Patten cannot be taken at law, but only in equity; and cited 1 Pars, on Con. 76, note jj, and cases there cited; Story’s Agency, § 211, and authorities in note; Shelton v. Homer, 5 Met. 462, 467; Litchfield v. Cudworth, 15 Pick. 28, 31.</p> <p>A mortgage, with power to sell on breach of condition, creates a trust; and the mortgagee, in exercising that power, is subject to the laws regulating trustees. 2 Story on Eq., § 1013. 1 Wash, on Real Prop. 497, § 25. Hyndman v. Hyndman, 19 Verm. 9.</p> <p>The law will not permit one to buy an estate which he was intrusted to sell, so as to make a profit to himself; but will be considered as holding for the benefit of the cestui que trust, if the latter so elect. 1 Story on Eq., § 318. 1 Wash, on Real Prop. 500,439. Jennison v. Hapgood, 7 Pick. 1, 7. Howard v. Ames, 3 Met. 309, 311.</p> <p>Bragg &' Patten, after conveyance by Fiske, held the property under the original trust as security for the note. Middlesex Bank v. Minot 4 Met. 325, 329.</p> <p>By the conveyance to and from Fiske, the title appears on record discharged of the trust, so that Sargent holds absolutely; and as the defendant, in payment of the note, cannot get the land back, he claims to have the purchase-money, in the hands of his trustee, allowed on the note. Hill on Trustees, 159, 536. '</p>

<p>Under B. S., c. 14, § 16, the “ owner” of land is liable for the expenses of removing a nuisance therefrom, although a tenant for a term of years caused the nuisance, and continued to be the “ occupant” of the premises under his lease •when the nuisance was removed. [Walton, Barrows, and Danforth, JJ., dissenting.]</p>

<p>The plaintiff’s land was sold for taxes to the defendants, whoso agent cut and carried away timber and hay therefrom. Held, that in the absence of any evidence that the timber and hay had been converted into money, the plaintiff ' cannot maintain, assumpsit therefor.</p>

<p>The sale by the master of a vessel of such parts thereof as belong to part-owners who were not, but might have been, notified of her peril in season to act in the premises before the salfe, is void.</p> <p>A master may sell the whole or a part of a vessel according to his authority.</p>

On exceptions. Replevin for one mare, wagon, and harness. Plea, general issue, with a brief statement claiming title to be in the defendant, and not in the plaintiff, and that the plaintiff is the wife of the defendant. The defendant put in a bill of sale from one Smith to the plaintiff and defendant. There was no evidence of title in any person other than the parties to the action.

The will was dated February, 1854. The case came up for trial at the April term, 1867. The alleged will had been destroyed, together'with all the probate records of the county, in the great conflagration of July 4,1866.

On exceptions. Case to recover damages to an ancient mill owned by the plaintiff, alleged to have been caused by a dam erected across tbe Pennemaguan river, af Bluff Head, in accordance witli Special Laws of 1853, c. 164.* The case is sufficiently stated in the opinion. 1. That the State has the sovereign property and dominion over all tide-waters, and the soil under them, within its jurisdictional limits.

On exceptions to the ruling of Cfoddard, J., of the superior court, for the county of Cumberland. Complaint under the bastardy act made before a magistrate, January 24,1870, entered at the February term, 1870, of the superior court, and tried by the judge without the intervention of a jury, upon a declaration filed at the same term, subject to exceptions in matters of law.

On exceptions. Assumpsit on a promissory note for fifty dollars by the payee against the maker. The action w'as submitted to the presiding judge, reserving the right to allege exceptions to his rulings in matters of law.

On motion that the verdict be set aside and a new trial granted, because of the misconduct of the defendant. Assumpsit on an account annexed, comprising, among other items, one for “1050 ft. 8x10 glass at $7.75 =$81.37.” The defendant offered to be defaulted for all of the items except the glass. The facts sufficiently appear in tlie opinion.

<p>On exceptions.</p> <p>Complaint under tlie bastardy act, charging the respondent, who is a married man, with being the father of the child.</p> <p>At the trial the complainant contended that this is a civil proceeding, and that the rules of evidence applicable in the trial of civil actions should he applied to this case.</p> <p>The presiding judge charged the jury, inter alia, as follows :</p> <p>“ In the cases which have come before you, you have predicated your verdict for the plaintiff upon a simple preponderance of testimony. Something more is required in this case. It is a1 suit which charges the defendant with crime, he being a married man ; and before you can return a verdict for the complainant, you must ho satisfied, beyond a reasonable doubt, of the fact of his guilt; and you will require at the hands of the complainant the same amount of proof that you would require at the hands of the State, if he were on trial upon an indictment for adultery.”</p> <p>The jury returned a verdict of not guilty, and the complainant alleged exceptions.</p>

On REPORT. Writ' oe entry to recover tlie upper story of town-bouse in Skowhegan. Writ dated Feb. 8, 1866. Plea, ml disseisin.

On report. Writ ok entry to recover about ten acres of land in Orono. The plaintiffs’ claim under a tax sale had, by virtue of R. S., c. 6, § 142 et seq. The land in question ivas taxed to the defendant, as a non-resident. The defendant proposed to contest the tax-title, but the presiding judge ruled that he could not do so without paying or tendering the amount of taxes, charges, and interest.

On exceptions. Writ oe entry for land in Sullivan, including a granite quarry, and covering about ten acres. The defendant claims that the land in dispute forms a part of lot number seventy-one, known as the John Gordon lot.

<p>A bequest to the “first Calvinist Baptist Society that may be organized in” a certain school-district and town named, “ for the purpose of buying a lot of land and erecting thereupon a meeting-house for the use of said society,” is valid as a charitable bequest.</p> <p>So with a bequest of a certain sum with its accumulations, to be funded as directed, “ for the support of the ministry of the first Calvinist Baptist Society organization named in the previous item, provided that the ” amount at the testator’s decease, “ shall be put in trust, for the purpose specified, of a committee or trustees appointed by the said Baptist association, together with the legal trustees of the school fund in the town” named; “ and provided that if said society or church organization shall ever cease to have such ministry, then the income of the fund shall revert to” the testator's “most needy heirs, and if the society or organization shall ever cease to have a ministry as specified for the term of seven years, then said sum audits accumulations shall be forfeited by the said society.” And Held, that as there is no Baptist organization as yet, the fund should be managed by “ the legal trastees of the school fund in the town.”</p> <p>So with a bequest of the income of a certain sum, fuuded as directed, for “ the education of a pious relative above the age of fourteen years, and a resident of” a town named, “ who shall be of the Calvinistic faith, and shall be-a student for the ministry.”</p> <p>So with a bequest of a specific sum “for the benefit of needy single women and’ widows,” whenever an equal sum shall be contributed by some other person, and a suitable building is provided for their reception.</p> <p>So with a bequest of a certain sum “ for the education and instruction of poor and needy children in the first school district in the town ” named, to furnish them with necessary clothing while attending school.</p> <p>S.o witb a bequest of a certain amount “to keep in suitable repair tbe ” Buck family burying-ground, so called.</p> <p>So, also, witb a bequest of tbe residue of bis estate “for tbe benefit of tbe poor and needy of tbe ” testator’s “ relatives.”</p> <p>In case of a deficiency of assets, general legacies must abate proportionally.</p>

<p>Prom a well-wrought, safe, and convenient traveled path on a highway, a passage-way, not made by the town, led by a slightly circuitous course to a watering-trough, erected without authority of the town, w-ithin the limits of the highway, for the purpose of enabling travelers to water tbeir animals, and thence turned into the main track again several rods from the point of departure. The plaintiff with his wife, traveling along the highway with a horse and carriage, drove out to the trough and watered his horse; and while leaving the trough, the wheel of his carriage was drawn upon a rock lying in its natural bed in tbe passage-way, ten feet from the usually traveled track, and thereby the plaintiff’s wife was thrown from the carriage upon the trough and injured; Held, by Cutting, Walton, Dickerson, and Taflev, JJ., that the actual condition of the passage-way being, in fact, such as it appeared to be, and containing nothing to allure, deceive, or ensnare travelers into concealed or unperceived danger or difficulty, the town is not liable.</p> <p>By Appleton, C. J. ; Kent, Barrows, and Danforth, JJ., .that the town is liable.</p> <p>By Pub. Laws of 1870, c. 100, § 1, in any civil action in which there is a subsisting verdict of a jury, if a majority of the justices, qualified to sit in the case, do not concur in granting a new trial, it shall he the duty of the court to order judgment on the verdict.</p>

On report. Assumpsit to recover a bounty for one John M. Lawry, deceased.

<p>A contract between the owner and master of a vessel, whereby the latter is to sail her at the halves, man and victual her, and the former to have half the earnings, constitutes the master owner pro hac vice, and creates no partnership between them.</p> <p>Preight-money earned during the subsistence of such a contract belongs to the master alone; and it may be holden by a creditor of the master by a timely foreign attachment.</p> <p>The dicta in Williams v. Williams, 23 Maine, 17, so far as they conflict herewith, overruled.</p> <p>The owner, having by his contract substituted the master in the place of the former, cannot claim the freight as owner.</p>

On exceptions. Assumpsit on a promissory note of the following tenor. $169. Winterport, Sept. 19, 1868. Sixty days from date, we jointly and severally promise to pay James H. Clark or order, one hundred and sixty-nine dollars with interest. Witness, D. M. Belcher. H. P. Hutchinson. C. E. Thayer. The note was indorsed in blank. The case was submitted to the presiding judge, each party reserving the right to except to any rulings in matters of law.

<p>On report.</p> <p>Assumpsit on a note of the following tenor.</p> <p>“$169.83. * Fort Fairfield, June 12, 1857.</p> <p>For value received we promise to pay Isaac Hacker or order, one hundred and sixty-nine dollars and and interest on demand. (Signed) William Everett.</p> <p>Richard Everett.”</p> <p>On the back of the note was an indorsement of one hundred and six dollars and eighty-nine cents, dated Dec. 19, 1860.</p> <p>The writ was dated Dec. 30, 1867. Plea, general issue and the statute of limitations. No service having been made on William Everett, and no property of his having been attached, and he never having been an inhabitant of this State, the plaintiff discontinued as to him.</p> <p>The plaintiff, after having read the note to the jury, testified that the indorsement on the note was made by him at its date, on settlement of accounts, and was bona fide and correct, and that no part of the balance of the note had been paid.</p> <p>The plaintiff, to avoid the statute of limitations, claimed that the defendant, Richard Everett, had never been an inhabitant of this State, and had never come into the State so that the statute would run in his favor. And it was admitted that the residence of said Everett had always been, and that it still is, with his family in New Brunswick.</p> <p>The defendant offered to prove that his residence in the Province of New Brunswick was within a mile and a half of the boundary-line between the State of Maine and the Province, and in a place adjoining the town of Fort Fairfield, in the county of Aroostook; that since giving the note, and since the indorsement on it, the defendant has constantly, week after week, and sometimes day after day, been within the State and town of Fort Fairfield, remaining sometimes three weeks at a time in Fort Fairfield, where the plaintiff has resided all the time, and near to the plaintiff’s place of business and residence ; that he has paid the plaintiff money within the time mentioned, at four different times, and negotiated other business with him at different times, at Fort Fairfield; that he frequently went for his milling to the village of Fort Fairfield, near the plaintiff’s residence; that he has traveled by the plaintiff’s store and house with a team, at least one hundred times, when engaged in hauling lumber, within the same time.</p> <p>The defendant offered to prove also, that the plaintiff knew the defendant was within the State, as before stated, at various times ; and that the defendant frequently had attachable property with him at such times, which the plaintiff must have known.</p> <p>Thereupon the case was withdrawn from the jury, and reported to the full court. If the court should be of the opinion, that the facts which the defendant offered to prove would avail him to sustain the defense under the statute of limitations, the case should stand for trial, otherwise the defendant should be defaulted.</p> <p>cited, R. S., c. 114, § 81; R. S. of 1841, c. 146, § 28; Drew v. Drew, 37 Maine, 389; Buchnam v. Thompson, 38 Maine, 171; Crehore v. Mason, 23 Maine, 413 ; Brown v. Hourse, 55 Maine, 230; Brigham v. Bigelow, 12 Met. 270 ; Putnam v. Dike, 13 Gray, 535; Mass. R. S., c. 120, § 9; Seymour v. Deming, 9 Cush. 527 ; Milton v. Balsón, 6 Allen, 322 ; Cross v. Bean, 5 Gray, 395 ; Same in New York on a similar statute ; Ford v. Baleock, 2 Sandf. 518 ; Gole v. Jessup, 6 Selden, 96.</p> <p>The statute of limitations was intended to be a statute of repose. It was also enacted with a view to punish the creditor for his negligence, which becomes lost in permitting a creditor to maintain a suit ten years after his right of action accrued, with the debtor “ constantly ” in his vicinity, and within the jurisdiction of the court, with property.</p> <p>If the creditor may deduct the aggregate of times during which the debtor was absent, by what rules shall it be done ? Shall it be computed by hours, days, or months ? The intention was simply to give the creditor an opportunity of bringing his action.</p> <p>When once the statute has begun to run, it does not stop on account of any subsequent disability. 1 Bouviers’s Just., 838. Fowler v. Hunt, 10 Johns. 464. Byrne v. Crowning shield, 1 Pick. 263.. Crosby v. Wyatt, 10 Shepl. 156. Angelí on Lim. 223.</p> <p>If the intention of the law had been to collect the scattered intervals of time and deduct them from the aggregate, the statute would have read “ the times of his absence,” or “ the time of his absences.”</p> <p>When a debtor returns to the State, the time of his absence is at an end, and the statute begins to run, and the creditor has an opportunity to avail himself of his legal rights.</p> <p>If the statute does not begin to run at the time of the debtor’s return after his first absence, when and at which return does it ?</p> <p>The statute does not connect the idea of his taking a residence in the State with his return, even by implication. The absence is the disability, and the time of return is the time from which the limitation commences. 29 Maine, 219. Crosby v. Wyatt, 23 Maine, 164. Little v. Blunt, 16 Pick. 359.</p> <p>The creditor was in the State when the cause of action accrued, the note being payable on demand and given in the State. The debtor cordd have sued it then. The right of action then and there accrued. The creditor has had numberless opportunities to enforce his claim, and having neglected them for ten years shall the debtor now be compelled to produce vouchers of its satisfaction ?</p> <p>“ Laws limiting suits, are founded in the noblest policy; they are statutes of repose to quiet titles, to suppress frauds, and to supply the deficiency of proofs from the ambiguity and obscurity of transactions. They presume that claims are extinguished, because they are not litigated within the prescribed period. They take away all solid grounds of complaint, because they rest on the negligence or laches of the party himself. They quicken diligence by making it in some measure equivalent to right. They discourage litigation, by burying in one common receptacle all the accumulations of past times which are unexplained, and have now become inexplicable. It has been said by Yoet, with singular felicity, that “ controversies are limited, lest they should be immortal, while men are mortal.” Story’s Confl. of Laws. § 576.</p>

On exceptions to the rulings of Goddard, J., of tlie superior court, for the county of Cumberland. Assumpsit on a receipt of the following tenor. “ Received of Eben N. Perry, deputy-sheriff, the steamer Lady Lang, the property of Charles Spear, and which was attached by him on a writ in favor of Lyman, Son & Tobey, against said Spear, and which we promise to return to said Periy, or the officer holding the execution, within thirty days after judgment, without demand.

Bill in equity heard on demurrer. The bill alleges substantially that Thomas S. Chase, one of the defendants, in January, 1844, contracted with one King for the purchase of lot eighteen, in first range in Concord, in this county, for two hundred and fifty dollars, to be paid according to the terms of an agreement then made, and in pursuance of such agreement, Chase gave King the note of one Lowell, for two hundred and fifty dollars, taking from King a bond running to Lowell,…

<p>On REPORT.</p> <p>Assumpsit on a contract to make two voyages instead of one, in carrying timber for a vessel’s frame, from Frankfort Marsh river to Stockton, and on an account annexed.</p> <p>The writ was dated April 14, 1866, and entered at the following May term, and continued until the January term, 1869, when it came on for trial.</p> <p>After entry of the action, the defendant died; letters of administration taken out; estate rendered insolvent, commissioners of insolvency appointed, who gave the notice provided in K. S., c. 66, § 4. The plaintiff notified the commissioners of his claim against the estate, by leaving with them the writ in this action, but did not support the claim therein set out by affidavit or other proof. The commissioners subsequently made their final report to the probate court, making mention of, but disallowing the plaintiff’s claim. After the administrator had settled his final account, and a decree of distribution made, to wit, at the October term, 1868, an order from this court was issued, to cite the administrator to appear at the January term, 1869.</p> <p>It was admitted that the administrator had personal knowledge of the pendency of the suit before being cited to answer to this suit.</p> <p>After the testimony was all in, the case was withdrawn from the jury, and reported to the full court, who were to render such judgment as the legal rights of the parties required.</p> <p>The view taken by the court renders a report of the testimony unnecessary.</p>

On exceptions. Assumpsit for services alleged to have been rendered the defendant’s'testator, John Given, during the last six years of the testator’s life, he having died Jan. 29, 1869.

On facts agreed. Appeal from a decree of the judge of the probate for this county, admitting to probate a certain instrument dated Jan. 26th, 1867, purporting to be the last will and testament of one Susan Jones, deceased, in which Simon Tebbetts is therein named as executor and legatee of one-fourth part of the estate of the deceased.

On Exceptions. Indictment por murder. It appeared, on the part of the government, that Elmira Atwood had been living at the house of one Mrs. Marsh, on Hammond street, Bangor, some four weeks prior to the murder ; that the defendant, Lawrence, went there more or less; that on Saturday» January 1, 1870, he went there considerably intoxicated, conversed with Elmira Atwood, and called her by an opprobrious epithet, she answering, that if he called her that, she would make him…

On exceptions. Assumpsit on an account annexed to recover the wages of tbe plaintiff’s personal labor performed for the principal defendant, from Sept. 7, to Oct. 10, 1868, at $3.50 per week, amounting to $17.50. The action was commenced by trustee process in the municipal court for the city of Lewiston.

On report. , Debt, on a poor debtor’sjbond of the usual form, dated Noy. 21, 1868, given by the defendants to procure the release of the defendant, Delaney, from arrest’’on an execution, issued on a judgment recovered in this court, in and for the county of Hancock, on Nov. 14, 1868, for $619.71 debt, and $27.51 costs.

On report. Complaint, under R. S., c. 92, for flowing the “homestead farm of Aaron Collins, late of Liberty,” in this county, “ deceased.” Plea, general issue, with brief statement denying the complainants’ title to the land flowed, and alleging title in the respondents. The maintenance of the mill and dam, and the flowing of the land described in the complaint, were admitted as alleged in the complaint.

On exceptions to the rulings of Q-oddard, J., of the superior court for the county of Cumberland. Action for alleged deceit in the sale of a farm in Falmouth. There was considerable evidence tending to show fraudulent, misrepresentations as to the quantity and quality of the crops usually raised upon the premises in question, and as to the quality of its soil. The sale and conveyance were made in ^February, 1868, when the place was covered with snow.

<p>Exceptions do not lie to tlie refusal of a presiding judge, after the testimony in a ■ case is closed, to order a nonsuit, or to instruct the jury to return a verdict for the defendant, the exercise of such power being discretionary.</p> <p>A person contracting to drive logs for the owner, cannot defend an action for carelessness in driving such ag he undertook to drive, upon the ground that the owner did not turn out to he driven all the logs he contracted to turn out.</p> <p>Testimony cannot he received, upon the-part of the defendant, to change, alter, or vary a written contract, signed by the plaintiff, though it is not the contract upon which the action is founded.</p> <p>Where a question as to the ownership) of personal property depends upon oral as well as written evidence of it, the- decision of it is properly left to the jury.</p> <p>A person taking a lien upon lumber to secure advances “until the same is finally marketed and payment received therefor,” is not authorized to manufacture the lumber at the risk of the general owner, and -to account only for the net proceeds, provided they do not amount to the market value, of the lumber at the tim6 possession was taken under the contract.</p>