Volume 6 — Maine Reports

This was an action of trespass quare clausum, fregit, tried before Weston J. upon the general issue. The plaintiffs made title to the lot numbered eight in the first range east, in Baldwin. The range lines, and the actual location of the lots numbered seven and nine in that range, were proved or admitted.

This was an action of trespass quare clausum fregit, brought by Elizabeth Campbell, who made title to a farm, including the locus in quo, under a deed from William Campbell, her father. The defendant was a judgment creditor of the father; and' derived his title under the extent of an execution upon the land as the property of the father, subsequent to his deed to the plaintiff, which the defendant impeached as fraudulent and void.

This was a second scire facias to have further execution of a judgment of this Court rendered at May term, 1814, for 10,000 dollars, being the penalty of a bond given by Susanna Webb and Joshua Webb'as principals, and Archelaus Lewis and John Gordon as sureties, for the due administration of the estate of Jonathan Webb.

<p>An award of arbitrators at common law, is not examinable, except on the ground of corruption, gross partiality, or evident excess of power.</p> <p>Awards of referees, appointed under the statute, or under a rule of court, are open to other objections, such as mistakes of law, or fact, and tlie like; for which the court to which the award is returned, will either reject or recommit it, at discretion.</p> <p>Where, upon a division of the town of N. and the incorporation of a part into the new town of C., commissioners were appointed by the act of separation, with power to consider its terms and conditions, and awaid what sum of money one town should pay to the other in order to do justice between them ; and an action of the case was given to recover the sum thus awarded; — it was held that this award was not examinable for excess of power, nor for mistake either of law or fact.</p>

Tins was a writ of entry, in which the demandant counted on his own seisin ; and it was tried before the Chief Justice, upon the general issue, with a reservation of liberty to give special matter in evidence. Tbe writ was sued out Feb. 5, 1827.

<p>In an action of assumpsit for monies advanced, and for the amount of certain bills accepted by the plaintiff for the defendants’ benefit, it appeared that at the time of dealing, the defendants were copart-ners in trade, and that since the commencement of this action the copartnership had been dissolved. At the trial, the plaintiff offered in evidence a letter addressed to him by Andrew Scott, one of the late partners, since the dissolution of the copartnership $ containing admissions of certain facts relative to the subjects in controversy. The defendants objected to this evidence, but the Chief Justice admitted it, and reserved the point for the consideration of the court, a verdict being returned for the plaintiff.</p> <p>argued against the admission of the letter, from the great mischiefs resulting to the commercial world, if one partner, after the connexion was dissolved, should be permitted to create a right of action against the company. For such, he said, was the amount of the principio contended for. The distinction attempted to be made, between admitting facts, and making a new promise, is merely a difference of words. The effect of both is the same; since it is as easy to admit the existence of facts which give a right of action, as to make an express promise in words. The cases on this subject are somewhat contradictory, but the weight of authority is with the defendants. BacMcy v. Patrick, 3 Johns. 536 ; Walden v. Sherburne, 15 Johns. 409 ; % Kent's Com. 25 ; Bell v. Morrison, 1 Pet. 351 ; Walker fyal. v. Duberry, 1 Marsh. 189; Wood v. Braddick, 1 Taunt, i 04. Here also, the contract having been made in New York, where the plaintiff resides, it is to be governed by the lex loci contractus.</p>

This was an action of debt upon a judgment of this court for costs awarded to the plaintiff, on an appeal made by him from a decree of the Judge of Probate, who had refused probate of a will offered by Crofton, the executor, purporting to be the will of James Dunn, on whoso estate the defendant was administrator. See 4 Greenl. 134.

<p>In this case, which was assumpsit, in addition to the general counts, the plaintiff, in his third count, declared that on the fourth day of May, 1827, in consideration that he would give the defendants a bill of sale of a certain vessel, to be built on Presumpscot river, the defendants promised to pay him therefor at the rate of twenty one dollars per ton; and averred that on the tenth day of June following, he gave them a bill of sale of the vessel, whereby and by reason of their promise, they became liable to pay, &c. The writ bore date January 1, 1828.</p> <p>At the trial, which was upon the general issue, the plaintiff produ-, ced a written contract between himself and the defendants, who were retail grocers and traders in Portland, by which it appeared that on May 4th, 1827, they agreed to furnish him, from time to time, with such quantities of goods as should be necessary to build a vessel of about 160 tons, and he engaged that when the keel should he laid, and the vessel raised, he would make and execute to them, a good and sufficient bill of sale of said vessel, to secure the payment for whatever goods they might furnish ; “ and after the sale of said vessel to the best advantage, and payment of said Merrills, “ the surplus proceeds to be refunded to said Colley.” On the back of the paper was this further memorandum, signed by the parties; — “ It is understood by the within agreement that the said Colley is to have a credit of four months on the goods, afler which interest is to be charged, until the debt is paid from the proceeds of the vessel when sold.”</p> <p>The plaintiff also produced the bill of sale given to him by the defendants, July 13, 1827, pursuant to the agreement; also the carpenter’s certificate to the collector of the customs, dated December 5, 1827, stating the admeasurement oí the vessel, which was launched in November preceding; on the back of which certificate was a conveyance of the vessel by the defendants to Eleazer Greeley & Son, ship-brokers and commission merchants, dated December 7, 1827 ; and another from the brokers to Reuben Mitchell, dated January 2, 1828.</p> <p>The defendants proved that before . and after the vessel was launched, the plaintiff, at several times, requested them to sell her as soon as convenient; that they asked his advice about the employment of some merchant for that purpose, and named the Messrs. Greeleys, to which the plaintiff assented. They also proved that at the time of the conveyance to Greeley & Son, the latter gave them a counter writing, stating that they were to self the vessel on commissions, and pay to the defendants, or their order, the net proceeds of sales, after deducting all expenses, and all sums of money they had advanced to the defendants, or might become accountable for, on their account, These advances, made. between October 30, and December 22, amounted to 900 dollars ; and the broker’s commissions oh the sales, were $50 90. The defendants also proved that the sale of the vessel was not hastened nor retarded by their having had advances of money from the Greeleys; and that the sale to Mitchell was on the usual credit of four, six and nine months, in equal payments, with interest after. None of those transactions between the defendants and the brokers were known to the plaintiff.</p> <p>The Chief Justice instructed- the jury that in ascertaining the amount for which the defendants were chargeable as the proceeds of the vessel, they should take the sum for which she was actually sold by the brokers, if that was her fair value ; or otherwise, her true value in the market; but that the charge for the brokers’ commissions was not, by law, allowable. And a verdict being returned for the plaintiff, the defendants tendered a bill of exceptions to the decision of the Chief Justice, respecting the commissions, which was sealed and allowed.</p> <p>The defendants also moved in arrest of judgment, because, 1st, the plaintiff had declared on a parol contract, made May 4,1827, to pay twenty-one dollars per ton for the vessel, upon delivery of the bill of sale ; but had proved a written contract of the same day, of a different tenor' and effect; yet the jury had found a general verdict for the plaintiff: — 2d. By the written contract, the defendants were not chargeable for the value or proceeds of the vessel, till she was sold and payment received by them therefor; but the plaintiff had commenced this action before either of those events had happened : — 3d. The plaintiff’s third count contained no legal cause of action against the defendants : — 4th. Upon the whole record the plaintiff was not entitled by law to recover in this action.</p> <p>said that the whole case being now before the court by the bill of exceptions, it was competent for them to show in this court, in arrest of judgment, any thing apparent on the record, which went to the right of the plaintiff to recover. And he contended that having shown a special contract in writing, the plaintiff could not recover on the general counts, while that contract remained in force. 1 Dane’s Jihr. 223, 224, 226, 227, 229. Harris v. Ok'e, Bull. N.P. 139, 140.</p> <p>And the action was prematurely brought. The conveyance to Greeley & Son was in fact merely a mortgage, with power to sell; and their advancements to the defendants were but loans, reimbursable out of the actual sales. Hence the plaintiff had no right of action till after the actual sale to Mitchell, and this was not till after this suit was commenced. Nor did the conveyance to Greeley & Son give any new right of action to the plaintiff; since a pawnee may always mortgage or sell his interest in the thing pleged, without giving the owner any greater rights than before. Moses v. Conham Owen, 123. Montagu on lien, app. 170, 171. Jarvis v. Rogers, 15 Mass. 408 ; and if this is not admitted in general, yet where goods are deposited by way of security for a loan of money, the lender’s rights are far more extensive than such as accrue under an ordinary lien in the way of trade. Pothonier ». Dawson, 1 Holt, 383.</p> <p>As to the charge of commissions, it results necessarily from the employment of a broker, to which the plaintiff assented.</p>

In assumpsit by the indorsee of a promissory note signed by the defendants Freeman and Bracket, who were members and deacons of the family or society of shakers in Alfred, they offered in evidence the depositions of several persons, who were members of that family, but had released to the deacons all their right to the subject matter of this suit, and had been released by them from all liability to contribute to the loss, or to the expenses of the defence.

<p>Where the plaintiff had declared that he was indebted to one offered as a witness, to whom the money sued for, when recovered, was by agreement to be paid over; it was held that this agreement was no assignment of the debt, and therefore did not go to the competency of the witness, but only to his credibility.</p> <p>B. gave to S. a collateral guaranty containing these principal words — “ I have consented, and now hereby promise to you, that I will be ultimately accountable to you for the sum of one hundred and fifty dollars, if the said H. shall purchase goods of you, and should fail to pay you for them.” On the same day S. sold to H. goods to that amount, on a credit of six months. No notice was given by S. to B. of the acceptance of the guaranty, or the sale of the goods; but about five months afterwards H. was summoned as the trustee .of S. by one of his creditors, and employed B. to prepare his disclosure, in which it was stated that he owed S. 1X0 dollars for goods sold. After the lapse of about sixteen months more, S. and his creditor entered into a compromise, by which the debt was paid, but the trustee-process was kept on foot for the benefit of S. who was to receive, to his own use, the money which might be obtained from the trustees. Judgment was accordingly rendered against S. and his trustees, of whom H. was one, and of whom the money was regularly demanded by the officer holding the execution; but nothing was paid by H. nor had any change taken place in his circumstances. Afterwards the execution was discharged. It was held that the guaranty was not absolute, but contingent; — that B. had sufficient notice; — and that as the judgment in the trustee-process had been assigned to S. and could therefore no longer endanger H. in making payment to him, it was no bar to an 'action by S. against B. on the guaranty.</p>

This was an action of assumpsit for services performed and monies paid ; including the plaintiff’s wages and commissions, as master of the defendant’s vessel, on a voyage from Portland to the West Indies and back. The defendant resisted the claim for wages and commissions, on the ground that they were forfeited by the misconduct of the plaintiff.

In this case it appeared that at the trial of the issue of fact, before the Chief Justice, one Leonard being called among the witnesses on the part of the plaintiff, did not come forward to be sworn with the others, being ignorant of the course of judicial proceedings; but that the counsel for the plaintiff, supposing that he had been sworn with the others, called him to the stand as a witness, where he testified in chief, and was cross examined.

<p>This was an action of the case against the sheriff, for the default of his deputy, in not giving a priority of satisfaction to the plaintiff’s execution against Webster and Minchin & Willis, 'out of the proceeds of their vessel and cargo.</p> <p>At the trial, before the Chief Justice, it appeared that the plaintiff’s demand was for cordage furnished to the vessel; that Webster owned one half of her, and Minchin & Willis, who were general partners in trade, owned the other; that the cargo was purchased partly by Webster, on his own account, partly by Minchin & Willis, on theirs, and partly by all the three on their joint account and credit; but that Webster had no right to bind the others, nor they to bind him, they not being partners in trade. And it further appeared that the officer had applied the proceeds of the sales of the vessel and cargo to the satisfaction of executions against the owners, severally, in cases where the attachments were of an earlier date than the plaintiff’s.</p> <p>The plaintiff claimed the right to a priority of satisfaction, contending that his was a claim against all the owners, quasi partners, and for materials found for the vessel. But the Chief Justice ordered a nonsuit, reserving the point for the consideration of the Court.</p> <p>would have maintained the action on the ground that here was a special partnership among the owners, for the particular voyage, both in the vessel and cargo ; necessarily incident to the method of the trade ; .and that as to all debts growing out of this particular adventure, and created on the joint credit of all the owners, the creditors liad the same right of priority-in payment, as the partnership creditors of general partners in trade, iEnsign v. Ward, 1 Johns. Ca. 171 ; Dwight v. Brewster, 1 Pick. 54; De Bukom v. Smith, 1 Esp. 29 ; Doddington v. Hallet, 1 Ves, 497 ; Watson on Partn. 139, 142; .Mumford v. JYichol, 20 Johns„ () 11,note; JJeskethv. Blanchard, 4 East 143.</p>

This was a scire facias against the defendant, as trustee of the goods of one Richardson.

<p>In this case, which was trespass for breaking and entering the plaintiff’s close in Brownfield, and cutting his timber trees, the defendant pleaded the general issue; and a license, given Dec. 7, 1819, by one James Osgood, who was then seised in fee of the close, to one Joseph Howard; and a conveyance Nov. 24, 1824, by Howard, of all his interest therein, to one Jackson Wood; and alleged that Joseph Howard and one Moses Howard, Oct. 11, 1825, being seis-ed in fee of the premises, conveyed them to the plaintiffs, who, on the same day, gave license to Wood, under whom the defendant justified as his servant. Which was traversed, and issue was joined thereon.</p> <p>To prove the issue on their part, the plaintiffs introduced a deed with general warranty, dated Oct. 11, 1825, from Joseph and Moses Howard, conveying to the plaintiffs the locus in quo, “ reserving all the privileges to Jackson Wood for the timber sold him, as per James Osgood’s obligation to me in Wood’s possession.” And they proved the cutting of the timber as late as the year 1826, as alleged in the writ.</p> <p>The defendant relied wholly on the obligation alluded to in the plaintiff’s deed, which was under seal, and in the following terms : “ I hereby agree to let Joseph Howard Esq. have all the pine trees fit for mill-logs on my land in Brownfield, beginning at Capt. Abner Sawyer’s corner, on Brownfield line, thence running on Sawyer’s line, and by said line to the county road, thence on said road to the ten-mile-brook, thence up the ten-mile-brook to the town line of Brownfield. Said Howard to have the timber on the north side of said brook, and on the southwest side of the Naser-hills. Said Howard not to cut any timber on said Kezer-h'üls, nor on the side of said hills, the same being reserved by the subscriber. Said Howard to have two years from date to take off said timber. I acknowledge one hundred and fifty dollars' for the same. Brownfield, Dec. 7, 1819. James Osgood.” It was assigned to Wood by the following indorsement. — “ This may certify that I have sold to Jackson Wood all my right and interest in and to the within obligation, to have the same privilege of cutting and hauling the pine trees that I have. JVov. 24,1824. Joseph Howard.”</p> <p>The defence was overruled by Parris J. before whom the cause was tried; and a verdict was taken for the plaintiffs, subject to the opinion of the court upon the effect of the instrument adduced.</p> <p>argued that it was an absolute sale, of all the timber on the land, and not merely of such as the vendee could get off in two years ; and that the limitation of that term of time was only an indication of the period within which he might enter and carry away timber without the payment of damages. After its expiration, they contended, he might still take away his timber, subject to any reasonable claim of the owner of the soil, for damages thereby occasioned. And such was the construction given to the instrument by Howard, in the deed to the plaintiffs. The reservation in this deed was the creation of a new lease, and operated for the benefit of the party in whose favor it was created. Emery v. Chase, 5 (Jreenl. 232.</p>

<p>In trover for certain promissory notes, where the title, and not the value, was the only subject oí controversy, the jury, being sent out late in tho evening, with per - mission to separate after agreeing and sealing up their verdict, did so, and returned a verdict the next morning for the plaintiff, with the amount of damages in blank; the foreman observing that they had some doubt as to the lime from which interest should be computed, and that some supposed this would be done by tho court; whereupon, by direction of the Judge, they retired again, and returned a new verdict for tho amount of the notes and interest; and it was held well.</p>

<p>Where an infant purchased land which was under a mortgage previously made by the grantor to a stranger, and agreed to pay part of the purchase-money by procuring the discharge of this debt and mortgage ; which was accordingly done by substituting his own notes and a new mortgage to the creditor of the grantor; and the deeds wore prepared and executed on different days, but were delivered at one and the same time; — it was held that the transaction was one and entire, though the deeds were between different parties; and that the infant, by retaining the land after he was of full age, ratified the mortgage.</p>

<p>Under the statute incorporating the proprietors of the side-booms in Androscoggin river, and the acts in addition thereto, it is the duty of the proprietors frequently to examine their piers and booms, to ascertain whether they are firm and sound, and capable of securing the property contained in them; and the corporation is responsible for all losses occasioned by the want of ordinary care.</p>

This action, which was assumpsit, was brought to recover toll for certain logs stopped in the plaintiff’s hooms, which were rafted out and delivered to the defendant, being part of the same quantity of logs of which those mentioned in the preceding case composed the residue.

<p>Where one made a deed in fee, reserving to himself a life-estate in a part of the premises, and declaring further that “ this deed is made, and to have effect, upon the following conditions” — viz.—the payment of money at divers times to other persons; — it was held that the fee passed immediately, on condition subsequent.</p> <p>If, in the extent of an execution on lands, it nowhere appears that the person, before whom the appraisers were sworn, was a Justice of the peace, the extent is bad.</p> <p>But this may be amended by stating the fact, even after registry, and pending an action for the land, if the rights of third persons are not thereby affected.</p>

<p>Case upon promises. The declaration contained several counts, the first of which was upon a promissory note made by the defendant, payable to the plaintiff, described - as a note for sixty dollars, for one half of the stud horse called the Paymaster, payable when the horse should be sold by the defendant, or within a reasonable time. In another count it was alleged, and was proved at the trial, that the defendant undertook to sell the horse, but did not, and in fact abused him, so that he died. /fThc note offered in evidence under the first count was payable when the horse should be sold, without any mention of reasonable time ; for which cause the defendant objected to its admission. But the Chief Justice overruled the objection; and a verdict being returned for the plaintiff, this point, among others, was reserved for the consideration of the court. The other points are omitted, no opinion having been given upon them.</p>

<p>The legislature having, in the act dividing the town of Bowdoinham, and incorporating a part' of it into a new town by the name of Bichmond, enacted that the latter town should be holden to pay its proportion towards the support of all paupers then on expense in Bowdoinham ; which it did for two years; after which, on the petition of Bichmond, another act was passed, exonerating this town from such liability in future; it was held that the latter act was unconstitutional and void, as it impaired the obligation of the contract created by the origi" nal act of division and incorporation.</p>

In this action, which was assumpsit, the defendant in the court below pleaded in bar that after the service of the writ in this case, and before entry of the action, he had been summoned as the trustee of the plaintiffs in a foreign attachment at the suit of one of their creditors, — that in that action the present plaintiffs were defaulted, — that he appeared and submitted himself to examination undei’ oath, disclosed truly the state of their mutual dealings, and thereupon…

<p>In the absence of better proof, evidence of long and uninterrupted usage, reputation, the declarations and conduct of the owners of the adjoining land, and the public acts of the town, was properly admitted to prove that an ancient corporation of proprietors, now extinct, had dedicated a certain lot to the public use as a landing place.</p>

This was an action of assumpsit, upon the common money counts, and was tried before Weston J. upon the general issue. It appeared that the plaintiff, in 1814, purchased of the defendant's father two contiguous parpéis of land in Waterville, being a front or river-tract, estimated at sixty-three acres, at three dollars the acre, and a rear-tract estimated at sixty-five acres, at five dollars the acre j for which he gave security and a mortgage to the defendant.

Entry sur disseisin. Plea, nul disseisin, and a claim for allowance of the increased value of the improvements made by the tenant. This action came before the court .upon a case stated by the parties, to this effect.

A verdict in this action having been rendered for the plaintiff, the defendant moved the court to set it aside, for causes which are sufficiently apparent in the opinion of the Court, which was delivered by

<p>A paper, drawn up by the plaintiff, containing a statement of the items composing his claim for damages, having been accidentally passed to the jury, with the other papers in the cause, though not by them regarded as evidence regularly before them ; the verdict, which was for the plaintiff, was for this cause set aside.</p>

Assumpsit for money had and received. The facts in this case were in substance these. — -The plaintiff having been indebted to the defendant, had given him a recognizance for the amount; on which an execution was afterwards issued, which was satisfied by an extent on land.

This was a writ of entry, in which the demandant claimed title by descent from his father and his brother, and counted against the tenant as entering under a demise from one David Davis, an abator. At the trial before Weston J. the tenant made title under a sale from Davis, who assumed to act as administrator of the estate of Joseph Battles, deceased, the demandant’s father; under which sale possession had gone, till the commencement of this action.

In this case the defendant was indicted for that he, having been lawfully married at Reading in Massachusetts, in 1805, was unlawfully again married to another woman, at Farmington in this county, in 1812, the former wife being still alive; “against the peace of said State, and against the form of the statute in such case made and provided.” In proof of the first marriage, a witness testified that he was present at its solemnization ; which was by the Rev. Mr. Stone, a…

<p>This was trover for a mill-chain, dogs, and bars; and was tried before Weston J. upon the general issue. The plaintiffs claimed title to the property under a deed from the defendant to Asa Red-ington, and from him to them, conveying a saw-mill, with the privileges and appurtenances; and they proved that the chain, dogs and bars, were in their appropriate places when the deeds were made; and that the chain was attached by a hook to a piece of a draft-chain, which was fastened to the shaft by a spike. As the chain in question was prepared for being hooked and unhooked at pleasure, the Judge ruled it to be a personal chattel, which did not pass by the deed of the mill, unless, by uniform and general usage, it was considered as part of the same.</p> <p>Testimony was then adduced on both sides, to the point of usage; which the Judge left to the jury, with instructions to return a verdict for the plaintiffs, if they should find the usage in their favor; which they did. And the point of construction, and the admissibility of parol testimony of any usage, to control the language of the deeds, which the defendant had objected to, were reserved for the consideration of the court.</p> <p>argued against the admissibility of the parol evidence -1st because it went to control a contract in writing which contained neither latent ambiguity, nor reference to any extraneous circumstances. King v. King, 7 Mass. 490 ; Brigham v. Rogers, 17 .Mass. 571 ; Bayard v. Malcom, 1 Johns. 453.' — 2d. If the chattels in question were personal estate, then they are not conveyed by the deed ; but if part of the realty, then the parol testimony is inadmissible by the statute of frauds.* — 3d. If the evidence was intended to prove a distinct, independent contract, still it is opposed by the statute of frauds, there having been no delivery, nor memorandum in writing, nor earnest paid, and the value exceeding thirty dollars. Ilermon v. Vance, 6 Johns. 5.</p> <p>And he contended that these chattels did not pass as part of the mill; because they were not fixtures; for these, and these only, he insisted, could pas^ by a deed of the mill alone. To enlarge this principle, and introduce whatever personal things were necessary to set a mill in operation, would unsettle established rules, and introduce confusion ; as it might be supposed to include axes and band-saws, and even a horse, if the mill was propelled by that power. Elwes v. Maw, 3 East 28; Cresson & al. ¶. Stout, 17 Johns. 1J 6 j Briggs v. Strange, 17 Mass. 406; Gale v. Ward, 14 Mass. 353; Union Bank v. Emerson, 15 Mass. 159.</p>

This was an action of covenant, on a charter-party; and was tried before Weston J. on the issue of non est factum.

In this case, which was a writ of entry, the demandant made title to the premises under an extent against the grantor of the tenant, made in June 1827, in which the premises were described as “ the westerly half of the ground floor of the store occupied by E. S. and of the cellar under the same, divided from the residue of said store by a line running from a mark on the north side of said store, through the centre of the same southerly to land of J. 11.; together with all…

Replevin of certain merchandize. The defendant pleaded property in one Walter Brown and one JYathaniel E. Quinby; and that he, as a deputy sheriff, attached the goods by virtue of a writ against them ; traversing the property of the plaintiffs; upon which issue was joined.

<p>Tuts case, which was decided in June term, 1826, and was unavoidably omitted in the cases of that year, was a writ of entry brought to recover two lots of land in Bangor, and was tried upon the general issue. The demandant’s title was derived under deeds from James Drummond and John Miller, conveyiug the premises to him prior to the year 1820. Neither the demandant nor his grantors were inhabitants of Bangor.</p> <p>The tenant claimed title to the premises under a deed from John Barker, collector of parish taxes in Bangor for the year 1823, by virtue of a sale of these lots as nonresident’s property, for nonpayment of parish taxes, assessed upon them as belonging to John Miller & Co. lor that year.</p> <p>It appeared that the minister was originally settled by the town, acting as a territorial parish; that his salary, which was 800 dollars per annum, had not been raised in the year 1822 5 and that at a meeting of the inhabitants of the town qualified to vote in parish affairs, called by the assessors of the town in April 1823, the sum of 840 dollars was voted for the salary of 1822 in arrear, and 800 dollars more for the salary due m 1823 ; which, with other sums raised - at the same meeting for parish charges, were duly assessed by certain assessors, chosen at that meeting, pursuant to an article in the warrant, as parish assessors.</p> <p>Upon this evidence the demandant objected — 1st. That the lands' of nonresident proprietors were not liable to be assessed for parish taxes. — 2d. That the parish meeting was illegal, being called by the assessors of the town, neither of whom was a member of the parish : —3d. That if, by construction of law, the society was a territorial parish, coextensive with the municipal corporation, the tax should have been made by the assessors of the town : — 4th. That the vote and assessment of two years’ salary at once, was illegal: — 5th. That the sum voted as .salary for the year 1822 was larger than was due : —6th. That the tax was assessed to John Miller & Co. who were not owners of the land. And a verdict was taken for the tenant, by consent, subject to the opinion of the court upon the question whether, upon the evidence, his title was maintained.</p> <p>being called on by the court to answer the first objection, argued that the minister was settled, under the law of Massachusetts, in pursuance of the obligation resting, by statute, on the town ; that his contract was with the town as a municipal corporation, in which capacity it was bound ; that this obligation of the town was not affected by any statute, of that State or of this, fixing or changing the qualifications of voters in parochial affairs, nor was the contract to be impaired by changing or diminishing the fund .out of which the salary was to be paid. At the time of making the contract, the lands of nonresidents within the town were bound for its performance, by the laws then in force; and to construe our statute (1821 ch. 135,) as relieving them from the liability to be taxed in any case for parish charges, is, in cases like the present, to take away vested rights. Had the minister sued for his salary, the action must have been against the toivn ; his execution might have been levied on the property of any citizen, whether of the parish or not; the citizen in his turn, might have had a judgment against the town for money laid out and expended ; and this sum could be reimbursed only by a general assessment, as in the case of other town debts. The Stal, 1786, ch. 1Ó, moreover, is not repealed, either by express words, or by implication ; and by this statute, taxes granted for parochial purposes are to be assessed on all the polls and property within the territorial limits of the parish.</p> <p>And wherever monies are to be raised for which the town is liable to be taxed, the meeting should be called by the town officers, in the same manner as other town meetings j but the assessment being a parochial act, it was proper that the money should be assessed only by members of the parish, specially chosen for that purpose. JVlinot ®. Curtis, 7 Mass. 441.</p> <p>Upon principle also, they contended, there was the same propriety in taxing nonresidents for the support of public worship, as for schools. Ameslmry JYail Factory Co. v. Weed, 17 Mass. 53.</p> <p>And they insisted that the parish-act of this State did not affect existing parishes, but only provided for the formation of new ones.</p>

This was a writ of entry, in which the demandant counted on bis own seisin of a parcel of land in Bangor ; and a disseisin by one William, McGlathry, under whom the tenant claimed title ; and it came before the court upon exceptions taken to the decisions of Weston J. before whom it was tried. * The demandant, at the trial, relied on a deed from the committee for the sale of eastern lands, appointed by the Commonwealth of Massachusetts, dated March 2, 1802; conveying to…

In this case, which was assumpsit for money had and received, it appeared that the plaintiff and defendant were owners in common of a quantity of boards, which the plaintiff, in June 1825, shipped to Boston, consigning them to Peters, Pond & Co. for sale. They sold them on the 12th of July 1825, to one Pike, then in good credit, for $>'287, taking his promissory note for the amount, payable to themselves in throe months, with grace and interest.

This was an action of replevin for 500 pine mill-logs, which the plaintiff, in his writ dated April 21, 1828, alleged to be his property. It was tried before Weston J. upon the issue of property in the plaintiff.

<p>Where the pvomissee in a joint and several note signed by three, sued one of the makers alone, and had judgment; this was an election to treat it as a several contract respecting them all. And having afterwards sued the other two jointly, setting forth the previous recovery against one alone, the judgment was for this cause arrested.</p>

This was an action of assumpsit for not carrying a quantity ofhay in the defendant’s ship. The agreement set forth in the declaration, was for the transportation of fifty tons of hay from Brewer to New-Orleans, or the southern ports in South Carolina and Georgia, at nine dollars per ton if the hay sold well; but at any rate at eight dollars; the hay to be delivered at the ship’s side.

This was a libel for divorce a vinculo matrimonii, filed May 13, 1829, by the husband against the wife; alleging that she had unreasonably and wilfully deserted him more than five years, commencing Feb. 28,1822. The wife did not appear. relied on the Stat. 1829, ch. 440, which first authorized a divorce a vinculo for this cause.

This was assumpsit by the indorsee against the maker of a promissory note, made Sept. 22, 1825, for sixty dollars, payable to one James Cochran or order, in six months from the date.

<p>Whether it is necessary that the clerk of a militia company, suing for a penalty occasioned by neglect of military duty, should indorse the writ with his own name, provided the captain has indorsed his approval of the suit as required in Stat. 1821, eh. 164, sec. 46. — quaere.</p> <p>Where the clerk of a militia company had no other evidence of his appointment than a certificate on the back of his sergeant’s warrant, stating that he, “ appointed clerk,” had taken the oath of office ; — it was held not to be sufficient to satisfy -the requirement of Stat. 1821, clt. 164, sec. 12.</p>

This was a process by original summons, in assumpsit, in which the defendant was styled of Baltimore in the State of Maryland. The service was by reading the precept to R. B. Mlyn, Esq. as attorney to the defendant; who entered an appearance at the return term, and filed a plea in abatement of the writ, because it was not served either by being read to the defendant in person, or by a copy delivered to him, or left at his dwelling house or last and usual place of abode.

This was an action of assumpsit by the promisees against the makers of a promissory note; with the common money counts, a quantum valebant, and an insimul computassent.

This case, which was trespass quare clausum fregit, came before the court upon a case stated by the parties. The defendant had been the lessee of the plaintiff’s farm, for the term of one year, ending April 15th j on which day he left the premises, leaving thereon a quantity of manure, lying in heaps about the barn and in the farm yard, so frozen that it could not then be removed without great inconvenience.

<p>An agent having discretionary power to adjust and collect an unliquidated demand, settled it by taking a negotiable note payable to his principal, which he after-wards pledged as collateral security for a debt of his own. It was held that his authority did not extend so far as to justify the pledge; and that the pledgee, after demand and refusal, was liable in trover for the note. Held also, that any payments to the agent, made before notice of the termination of his authority, were good.</p>

Dekt on n bond dated Nov. 1R. 1,827. in the penal stint oí $247 88; conditioned “ that whereas the above bounden James Norton hath been and now is arrested by Nathaniel Tilton, deputy sheriff for the county of Cumberland, by virtue of an execution issued against him the said James Norton on a judgment recovered against him by the said Simeon Pease at the Court -of Common Pleas holden at Alfred, within and for the county of York, on the third Tuesday of October, 1827, for the…

This was an action of trespass quare clausum fregit brought July 24, 1827, against William and James Linscott, and others; and was originally entered in a Justice’s court, where the defendants pleaded that the locus in quo was the soil and freehold of one James Pugsley ; which was traversed in the court of Common Pleas.

This was a scire facias upon a recognizance entered into by the defendant and another at October term, 1822, of the court of Common Pleas, for the prosecution of an appeal to this court, in a civil actioi). The appeal was not entered in this court; and the plaintiff, upon complaint made, obtained affirmation of the judgment, with additional damages and costs.

<p>A promissory note, given to a third person by the defendant as surety for the plain- . ■ tiff, and taken up by the defendant, with the creditor’s receipt of payment from the defendant thereon, being duly filed in the clerk’s office by way of set-off, is of itself sufficiently explicit as a demand for monies paid, within the meaning of Stat. 1821, chi 59, sec. 19.</p> <p>Where, one of two principal debtors in a joint promissory notéis dead, and the money has been paid by a surety, he may file it in offset against a demand in favor of the estate of the deceased against him, by the operation of Stat. 1821, ch. 52, sec. 25and this though the estate has been represented insolvent.</p>

<p>Where one seised of a remainder expectant upon an estate for life, mortgaged tha premises in l'ee, and died ; and his widow brought an action of dower against the mortgagee ; it was held that the latter was estopped to deny the seisin of the husband.</p>

<p>1st debt on an arbitration bond, it appeared, on oyer of the condition, that the defendants, who were named as private individuals, mutually agreed with the plaintiff “ to submit to the determination of Moses Bradbury, Gibeon Elden and Jabez Bradbury, the claim of the said Reuben Gordon for all damages which have been occasioned, or which may hereafter be occasioned to the land of said Reuben Gordon, by the erection and continuance of the dam across Saco river at Union falls, to the height the same is now erected ; the report of whom or the major part of whom to be final and conclusive between the parties $” and covenanted “ well and truly to perform, fulfil and keep the award,” &o.-</p> <p>The defendants pleaded, first, that the arbitrators “ made no such award, report or determination of' and upon the premises as was contemplated in the condition of said writing obligatory, and in conformity thereto.” The plaintiff replied that they did make such award, setting it forth in hccc verha : — “ We the subscribers, a committee appointed by Reuben Gordon of Hollis, on the one part-, and Jonathan Tucker of Saco, and other proprietors of the Union falls mills in said Hollis, on the other part, having duly notified ,the parties therein concerned, met and viewed the premises agreeably to our appointment, -and having heard their several pleas, proofs and allegations, and maturely considered the same, do award and determine, and this is our final award and determination, that Reuben Gordon recover of Jonathan Tucker of Saco, and other proprietors of the Unionfalls mills, the sum of one hundred and twenty five dollars damage, and costs of reference taxed at twenty-five dollars and fifty-seven cents.” Which was signed by all the arbitrators. To which the defendants answered by a general demurrer.</p> <p>The defendants pleaded, secondly, that the plaintiff “ had not well and truly performed, fulfilled and kept the award” of the arbitrators, “ in all things on his part to be performed, &c., as specified in ihe counterpart of the same writing obligatory,” made on the same day. The plaintiff replied that he had so kept the award. The defendants rejoined that the plaintiff had not “ made, executed and delivered to the said defendants a good and sufficient deed, conveying to them the right to flow the premises set forth in the counterpart of said writing obligatory, agreeably to the award” &c. And the plaintiff hereupon demurred in like manner.</p> <p>contended that the award' was bad. 1st. It is not made between the parties to the submission. The ob-ligors in the bond have not described themselves as proprietors of the Union falls mills, nor as part owners either of the milis or of the dam; nor have they stipulated in behalf of the proprietors ; neither does it appear by the bond that any of the obligors are owners of' the mill; and the award is made on a separate paper. Now parol proof is not admissible to connect the award with the bond, nor to rectify any mistake of this kind. Montague v. Smith, 13 Mass, 396; Woodbury v. Nor thy, 3 Qrcenl. 85. Neither does it appear by the award that these obligors were heard by the arbitrators ; nol-is any thing awarded for them to perform. They are not bound by the award, not having bound themselves for the proprietors; not-are the proprietors bound, they being strangers to the submission. Eveleth v. Chase, 17 Mass. 458 ; Cutter v. Whittemore, 10 Mass. 442 ; Kyd on Awards, 103 — -105 ; Boston v. Brazier, 11 Mass. 447.</p> <p>2. The award is not made of and upon the premises. The arbitrators have not reported what sum they allowed for damages up' to the time of submission ; nor what for future damages ; nor for what consideration the sum named in their award was allowed. Bacon v. Dubarry, 1 Ed. Rayrn. 246 ; 12 M.od. 129 ; Kyd 139.</p> <p>3. It is not mutual. Nothing is awarded to be done by Gordon ; nor does it appear for what cause the money is to be paid ; nor what rights or privileges are to accrue to the defendants by the payment; neither could this submission and award, taken together, be successfully pleaded in bar of any future action or complaint for flowing the plaintiff’s land, brought by himself; much less would it bar his grantee, who cook] learn nothing from the award. Peters v. Pierce, 8 Mass. 398; Stain v. Wilde Cro. Jac. 352 ; Ormelade v. Coke, ib. 354 ; Lumley ». Hutton, ib. 447.</p> <p>4. It is not final. It creates no lien or incumbrance on the plaintiff’s land; nor does it give the defendants any rights beyond what were already secured to them by the statute regulating mills. The bond is not an instrument of defeazance, but a penal bond. It does not provide that the defendants shall use the land of the plaintiff, on any conditions whatever; and the, award leaves the whole subject open to the same litigation as if no bond had been made. Hr shine v. Townsend, 2 Mass. 493 ; Harrison v. Phillips Academy, 12 Mass. 456; Jones v. Boston Mill Corporation, 4 Pick. 507 ; Palmer's case, 12 Mod. 234; Beale v. Warner, 3 Saund. 293, note 1.</p> <p>5. It is at least void so far as costs are concerned ; the arbitrators having no power to award these, unless specially given; which was not the case here. Cutter v. Whittemore, 10 Mass. 442; Bussfield v. Bussfield, Cro. Jac. 577 ; Abrahat v. Bragdont 10 Mod. 201 ; Pinkney■ v. Hale, 1 Lev. 3; Bolbier v.' Wing, 3 Greenl. 421.</p> <p>6. .The replication is bad, because it assigns as a breach the non payment of damages and costs. Being bad in part, it is wholly defective and insufficient. And this fault may be shown either upon general demurrer,-or in arrest of judgment. Heard v. Baskerville, Hob. 232 ; 5 Com. Big. Pleader F. 14, C. 47 ; Cooke v. Whor-wood, 2 Saund. 337 ; Pope v. Brett ib. 293, note 1 ; Hayman v. Gerrard, 1 Saund. 102 note 1 ; Fox v. Smith, 2 Wils. 267 ; Addison v. Gray, 2 Wils. 293; Roberts v. Harriot, 1 Mod. 289; Hill v. Thorn 2 Mod. 309 ; Thirsby v. Helbot, 3 Mod. 272; Meredith v. Alleyn, 1 Salk. 138 ; Barrett v. Fletcher, Cro. Jac. 220 ; 1 JYelson’s Abr. tit. Arbitr. M. pi. 1, 2, 3, 4 ; Kyd 200 9 1 Chitty’s PI. 6439 Earl of Manchester v. Vale, 1 Saund. 289 Perkins v. Burbank, 2 Mass. 819 Webber v. Tivill, 2 Saund. 127.</p> <p>to show that the objection of want of parties to the award was not open upon these pleadings, cited 1 Chitty’s PI. 476 -; 2 Saund. 184 91 Saund. 63. To the goodness of the award they cited Gaylord v. Gaylord, 4 Day 422 9 Rutland v. Conway, 16 Mass. 396 9 Peters v. Pierce, 8 Mass. 398 ; Forsyth v. Shaw, 10 Mass. 253 ; Jones v. The Boston Mill Corporation 6 Pick. 148 9 Strong v. Ferguson, 14 Johns. 161. And to the faultiness of the defendant’s second plea they cited 2 Chitty’s PI. 477 5 Beane v. Farnham, 6 Pick. 272.</p>

This was a writ of entry, on the demandant’s own seisin. In a case reported by the Chief Justice, before whom it was opened, it appeared, by the showing of the demandant, that the tenant, being seised of the demanded premises, conveyed the same to one Bean by his deed dated Feb. 22, 1822, and recorded March 8, 1823 5 and-that the demandant caused the premises to be attached as the property of Bean, March 21, 1826 ; and subsequently, after judgment, caused them to be…

<p>A. wife cannot bo assignee ot' a mortgage made by the husband; but the debt í», by sucb assignment, extinguished. — Semite.</p>

This case, which was briefly spoken to by is fully stated in the following opinion of the Court, which was delivered at the ensuing term in Cumberland, by

The trustee in this case set forth, in his disclosure, a bond given by him, to the defendant, who was his father, conditioned for the payment of money and piovisiuus at stated times, in each year, for his support during life; and declared that at the time of the service of the writ, he had paid all which was then due.

In trespass for taking a yoke of the plaintiff’s steers, the defendants justified under an execution in favor of Lewis against the inhabitants of the second parish in Kittery ; alleging the liability of the plaintiff’s property to be taken in satisfaction of the judgment.

<p>This was an action of assumpsit, brought to recover the amount of two promissory notes made by the defendant’s intestate, and payable to the plaintiff.</p> <p>In a case stated by the parties, it appeared that the intestate died in July 1827 ; that .the defendant was afterwards appointed admin-istratrix, and on the sixth day of November 1827, duly returned an inventory of the estate, and on the same day represented it insolvent, and procured the appointment of commissioners to receive and examine the claims of creditors ; — that the commissioners, at the expiration of the time allowed by the judge of Probate for creditors to bring in their claims, which was Dec. 2, 1828, made their report, in which the plaintiff’s notes were included ; — that on the same day the defendant exhibited and settled with the Judge of Probate her administration account of til the personal estate; and in January 1829, obtained license to sell the real estate of the deceased.</p> <p>More than six months having elapsed after the commissioners had made their report, without the settlement of any final account by the defendant, the plaintiff, in October 1829, commenced this action for the recovery of his whole debt. On the sixth day of November following, the judge of Probate allowed the defendant a further time of three months to settle her final account; which she rendered and settled .Dec. 7, 1829 ; on which day the judge decreed that the estate Vvas insolvent, and that distribution thereof pro rata be made among the creditors, including the plaintiff; whose distributive share was afterwards tendered, with costs up to the time of tender, and refused.</p> <p>Upon these facts the case was submitted to the judgment of the Court.</p> <p>relied on the St at. 1821, ch. 51, sec. 28, which requires administrators to settle their account of administration within six months after report made by the commissioners of insolvency, upon peril of liability to creditors in the same manner as if the estate bad not been represented insolvent. And he contended that the account there mentioned was a final account of the whole estate, upon which the judge might decree a distribution among the creditors. Pierce v. Whittemore, 8 Mass. 282 ; Ring -v. Burton, 5 Greenl. 45.</p> <p>cited Nelson v. Ja-ques, 1 Greenl. 139 $ White v. Sivaine, 3 Pick. 365 ; Ex parte Allen, 15 Mass. 58 ; Paine v. Fox, 16 Mass. 129 ; Wildrage v. Patterson,' 15 Mass. 148 5 Walker v. Lyman, 6 Pick. 458; Foster v. Jlbhot, 1 Mass. 324 ; Hunt v. Whitney, 4 Mass. 620 j Col-man v. Hall, 12 Mass. 570; Shillaber v. Wyman, 15 Mass. 322; Pierce v. WhiUemore, 8 Mass. 282.</p>

<p>In a declaration upon Stat. 1821, ch. 51, sec. 11, to recover the penalty there enacted against an executor for neglecting to file and obtain probate of a will, it is necessary'to allege, in the words of the statute, that the neglect was “ without just excuse made and accepted by the Judge of Probato for such delay.” And the want of this allegation is not cured by verdict.</p> <p>But it is not necessary to aver that such omission was intentional.</p> <p>Where, after verdict for the plaintiff, the question whether the action was maintainable, upon the facts proved at the trial and reported by the presiding judge, was reserved for the consideration of all the judges, and judgment was entered for the plaintiff according to their opinion; this was held to be no bar to a writ of error brought to reverse the judgment for a defect of substance in the declaration.</p>

The defendant was indicted for falsely pretending himself to be a deputy sheriff, and taking upon himself to act as such, in assuming to serve a writ in his own favor against one Mehitable Berry.

<p>Jn a complaint for flowing lands, under Slat. 1821, ch. 45, no appeal lies from the judgment of the court below, unless the respondent, in his plea, either denies the title of the complainant to the lands flowed, or claims the right to flow them without the payment of damages, or for an agreed composition.</p>

<p>This was an action of trespass on the case for maliciously suing the plaintiff and attaching his estate, in an action of debt on judgment, in the name of one Lemuel Bradford, who was dead.</p> <p>At the trial, before the Chief Justice, the plaintiff proved that the defendant caused a writ to be sued out against him, Oct. 13, 1824, in the name of Bradford, on a judgment recovered at October term, 1807, for something more than a hundred dollars j and that thereupon the sheriff had attached his interest in the house in Portland, in which he dwelt, and also in another lot in Portland, fronting on Fore-street. He also proved that Bradford was killed in the sortie from fort .Erie, Sept. 17, 1814 $ that the official report of the killed and wounded in that affair was published in the newspapers of the day j and that bis. death was generally known in Portland, where he resided at the time he entered the army.</p> <p>It further appeared that the defendant bought the judgment declared upon, of Mr. Kinsman, the attorney who recovered it; and who did not know of his client’s death, but supposed him to reside in Massachusetts ; and who, being a creditor of Bradford, assumed to • assign the judgment to Noble, passing the whole amount to the credit of Bradford. The purchase was made at the suggestion of the attorney, who was to receive forty dollars for the demand, if it should be recovered. Noble, who came to reside in Portland after Bradford’s departure, was ignorant of the fact of his death, till after service of the writ 5 and on ascertaining it, the plaintiff was informed that the suit would be prosecuted no farther.</p> <p>The plaintiff further proved that the estate attached in Fore-street, was mortgaged by him to the defendant, July IS, ISIS.</p> <p>The deféndant then produced a copy of a deed of release and quitclaim, dated Sept. 1, 1822, by which he had conveyed all his interest in that parcel to one Eleazar Wyer.</p> <p>The plaintiff then offered parol evidence to show that this conveyance to Wyer was without valuable consideration, and was in trust for Noble; but this evidence the Chief Justice rejected, as it contradicted the deed, which, moreover, the plaintiff had no right to impeach.</p> <p>Upon this evidence the Chief Justice instructed the jury that there were two questions in the cause for consideration ; — first, whether the prosecution against the plaintiff was without probable cause ;— and secondly, whether it was malicious. On the first point he said that the judgment recovered by Bradford was incontestible proof of a lawful demand ; that a judgment closed all dispute between the parties concerning its subject matter ; — that this judgment appeared to be due ; but of this they might inquire; — and that Mr. Kinsman had a right to transfer it; crediting his client with the amount, as he had testified. But he further instructed them that Bradford being then dead, he considered it their duty, on the whole, to regard the action against the plaintiff as commenced without probable cause.</p> <p>On the question of malice, he instructed them to examine all the evidence, and thereupon to decide whether the suit was instituted fairly, to recover the amount of the judgment, under a purchas’e, and an authority supposed to be sufficient; and without knowledge of the plaintiff’s death; or whether the defendant had in that transaction acted .maliciously.</p> <p>Under these instructions, to which the' plaintiff filed exceptions, the jury found for the defendant.</p> <p>argued — 1st, That jf it were competent for the defendant to introduce the deed from himself to Wyer to rebut the inference of malice ; it was equally proper for the plaintiff to avoid that effect by evidence showing that the conveyance was merely col-orable. Any stranger may falsify a deed for covin. 2 Stark, Ev. 585, 587. Yet the proof here offered was not contradictory to the deed, but merely went to show a resulting trust in the grantor. On either ground, whether of covin or of trust, it was admissible. 1 Cruise’s Dig. 474,482, 492 ; 1 Stark. Ev. 254; Jackson v. Stiern-berg, 1 Johns. Ca. 153 ; Foot v. Colvin, 3 Johns. 216 ; Lloyd v. Spillet,2 Aik. 150; 3 Stark. Ev. 1040, 1043; jFree. Chan. 80.</p> <p>2. The purchase oí the demand was illegal, being of the nature of champerty; and was therefore of itself evidence of malice. 2 Uawk.P. C. 393; 2 Inst. 208; Thurston v. Percival 1 Pick. 415.</p> <p>3. The conduct of the defendant, in commencing the suit without making due inquiry, when the circumstances rendered it so very probable that the original plaintiff was dead, and the truth was so easily ascertained, involved all the consequences of actual knowledge. It was the crassa ignorantia, which in law amounts to malice. 5 Amer. Law Jour. 514; Brooks v. Warwick, 2 Stark. R. 342 ; Purcell v. McNamara, 9 East. 362 ; 2 Stark. Ev. 915 ; 2 Dane’s Abr. ch. 70, art. 1, 3, 6.</p> <p>4. The transfer of the .judgment was illegal and void, for want of authority in the attorney, his principal being dead. Harper v. Utile, 2 Greenl. 14.</p> <p>cited 2 Phil. Ev. 114.</p>

This was a writ of entry. The principal facts are stated in 5 Greenl. 272, where the same case is reported. Both parties claimed the land under levies of executions against one Houghton. The demandant, who was a judgment creditor, took the land by extent, in May 1825, under an attachment made March 28, 1824.

This was an action of the case against the late sheriff, for neglect of his deputy in not levying an execution against one Small, on the goods attached on the original writ against him.

This was a writ of entry brought by the assignee of a mortgagee, against the mortgagor; the facts of which case are fully stated in the report of the same case, ante p. 35. The action was resisted on the ground that the promissory note, to secure which the mortgage was made, was given upon a usurious consideration ; and to prove this the tenant offered to give in evidence the declarations of one 'Bracket, the mortgagee.

<p>This was an action of indebitatus assumpsit, on promises alleged to have been made by James Dunn the defendant’s testator, to William Waite the plaintiff’s intestate, for the goods, Sz,c. mentioned in the schedule annexed to the writ. This schedule appeared to be a transcript from Waite’s book, being charges of sundry items accruing from March 7, 1795 to Aug. 15, 1S01, at which time the account was footed by Waite and the balance carried to new account.</p> <p>The defendant pleaded, first, the general issue, whi.ch was joined : secondly, non assumpsit infra sex annos ; thirdly, actio non accrevit infra sex annos', fourthly, that from and after Oct. 28, 1799, mentioned in the plaintiff’s declaration, being the time when the last charge but one was made on the schedule annexed, and probably intended to refer to the settlement of the accounts of the ship George, hereafter mentioned, more than six years had elapsed ; and fifthly, that the suit was not commenced within six years next after the cause of action set forth by the plaintiff, if any existed.</p> <p>To the second, and following pleas, the plaintiff made the general replication of merchant’s accounts. The defendant rejoined that at the time of the plaintiff’s action there were no open and running accounts between the plaintiff’s intestate and the defendant’s testator; but that all accounts, concerns and transactions between them were liquidated and closed at the time of, and more than six years before, the commencement of the action.</p> <p>The plaintiff surrejoined that the accounts, promises and causes of action accruing between said Waite and Dunn as merchants, and concerning the trade of merchandize, were open and running on the fifteenth day of August 1801; that l)unn removed out of the Commonwealth of Massachusetss, and continued absent till his death in 18051 that Waite died JYov. 9, 1805, and no administration was taken out on his estate till Feb. 19, 1822 ; that the will of Dunn was not filed, and letters testamentary granted, till June 6, 1826; and that said accounts have always remained open and unsettled ; and concluded with a traverse of the rejoinder, that the same were liquidated and closed at the time of. and for more than six years before, the commencement of the plaintiff’s action.</p> <p>On this traverse issue was taken and joined ; and the cause was tried before the Chief Justice on both the issues.</p> <p>The plaintiff offered in evidence certain account books proved to have belonged to Waite; being his day-books, the entries in which were mostly in his hand writing, and his legers, in which were many entries proved to be in the hand writing of Dunn, the last of which was dated April 25, 1796 j as competent evidence to prove such charges as might have been substantiated in this manner by the sup-pletory oath of the party, -if living. To the admission of this evidence the defendant objected; but the objection was overruled, and the books admitted.</p> <p>Among other entries on the books, copied into the schedule, was the following : — “ Oct. 28, 1799. For cash paid John Waite, Esq. per receipt of yours taken up this day, $15.” The exhibition of the book in support of this charge was objected to. To support the charge, the plaintiff produced a promissory note signed by Dunn, payable to John Waite, with a sum of fifteen dollars indorsed thereon in his hand writing, as received from William Waite. This evidence was objected to, as inadmissible to support this item of charge. But both these objections were overruled, and the charge, accompanied by the note and the receipt thereon, were admitted to be read ; though the charge alone was not admitted as legal evidence; but all together being competent for the jury to consider, as furnishing a degree of presumptive proof; all the parties to the transaction being dead, and the papers being in the hands of the administrator, and by him produced.</p> <p>Certain account books of the original entries and charges of Waite against the owners of the ship George, the owners being himself, James Dunn and Francis Waite, were also offered by the plaintiff to support a charge in the account-book of Waite against Dunn of ,f698,49, as the balance of the ship George’s account adjusted by Waite and Dunn, Oct. 4, 1799. The admission of these books as evidence was objected to; but they were admitted for the purpose proposed, so far as they contained charges in the hand writing of Dunn, on the ground of their being admissions on his part; but no farther, nor for any other purpose. It appeared by the plaintiff’s testimony, that this ship was captured by the Spaniards, and condemned, in 1797.</p> <p>The plaintiff also produced in evidence a paper book in the handwriting of Dunn, containing mutual accounts of debt and credit between himself and Waite, and between himself and the owners of the ship George, and between each of the owners and the ship; the last entries therein being dated Feb. 26,1798; and the balances for and against each of the owners being therein carried to their respective private accounts ; and being also brought into private account between Dunn and Waite; offering the book as evidence of the admission of Dunn of the truth of the entries therein contained in favor of Waite. It was hereupon insisted by the counsel for the defendant that the book of accounts was to be taken together, if considered by the jury at all; and that those parts and entries which went in discharge of Dunn, and to reduce the balance against him, were entitled to equal weight and credit with those which went to charge him. And the Chief Justice instructed the jury that they were to examine this book for themselves, and draw their own conclusions from the facts and statements it contained, and the debts and credits it exhibited ; and that, like any other evidence laid before them, it was a subject for their consideration.</p> <p>It was likewise contended by the defendant’s counsel, that this paper book was a statement or duplicate of various accounts. between said Dunn and Waite, drawn off by Dunn, and shewing all their accounts 5 as it was described by the Plaintiff’s counsel on producing it 5 and that it was in fact, an account stated between tho parties subsequent to the loss of the ship George, as appeared by tho last dates therein; and requested the Chief Justice so to instruct the jury. But this he declined ; and left it as a fact for the jury to decide whether it was an account so stated.</p> <p>And it was also contended by the defendant’s counsel, that inasmuch as said book was produced by the plaintiff, and had been in his possession and the possession of William, Waite, or other persons in interest, and as it appeared on inspection; that leaves and part of leaves, once belonging to, and constituting parts of said paper book wore by some means torn and removed therefrom ; it was incumbent on the plaintiff to account for, or explain the loss ; and that not being otherwise accounted for or explained, it was evidence either that such portions were fraudulently removed, or that they were lost by time and accident 5 and that the jury might presume, in the absence of such explaining evidence, that if the hook had been entire, and- especially the whole of the last leaf preserved, it would shew a settlement and liquidation and close of all accounts between Dunn and Waite, Including those of the ship George. And the Chief Justice was sc» requested to instruct the jury. On this head he instructed them, that it was a common principio that fraud was not to bo presumed 5 and that there was no direct proof in the case that any of the leaves, or parts of leaves, of the book had been removed or tom off by design, or with a fraudulent intention. If any proof existed of tho fact supposed, it must result from inspection of the book itself. That they would therefore examine the book carefully, with this view ; and also to ascertain whether tho leaves had been lost by time and accident. That they would also examine and see if the book did not furnish some proof that no such settlement had been made on the last leaf, as suggested, inasmuch as the charges and credits on the page in question, and the page opposite, had never even been footed. That the whole was a question of presumption, and exclusively within their province.</p> <p>The defendant’s counsel also contended that the statement of the account of William Waite with the ship George, and the charge of balance to James Dunn in Waite’s account, Oct. 4, 1799, was evidence of an account stated by Waite at that time; and requested the Chief Justice so to instruct the jury. His instructions .to them were, that the statement of the account referred to, certainly was evidence in the case ; but whether it was evidence proving any account stated, liquidated and closed by and between Waite and Dunn, was a fact for them to decide, on examination of the whole evidence relating to that point.</p> <p>The defendant’s counsel also contended that the account annexed to the Plaintiff’s writ exhibited, and was in form and fact an account stated Aug. 15, 1S01; and requested the Chief Justice so to instruct the jury ; which he deelined, for the reasons given in the last instruction.</p> <p>It was proved by the defendant that the will of James Dunn was allowed and approved in the Prerogative Court of Ireland in Dec. 1805; and it was contended by his counsel, that all dealings having ceased between the parties for six years before their decease, it might be presumed that the accounts of Waite and Dunn had been stated and rendered | and that the death of those parties was a closing of all accounts between them, and equivalent, in legal effect and contemplation, to an account stated. On this head the Chief Justice instructed the jury that the law did not seem to have been settled in England, New York, Massachusetts or this State $ and that he was not prepared to say whether a cessation of dealings between merchant and merchant for more than six years next before the commencement of the action, or the death of both or one of the original parties, was equivalent to an adjustment of accounts between such parties, and should subject the accounts, so adjusted to the operation of the statute of limitations j nor did he deem it necessary to give any definite opinion on those points, because the form of the issue rendered it unnecessary. That the single point in issue upon the special pleas was, whether the accounts in question had been liquidáted and closed more than six years before the commencement of the action; that the words “ liquidated and closed,” implied the operation of the minds of the original parties on the subject — a thing very different from the death of either of them, or the mere cessation of dealings ; and that the affirmative was on the defend ant,to satisfy them* that the accounts had heen liquidated and closed, as he had affirmed in tho pleadings.</p> <p>The defendant’s counsel also contended that each and all of these circumstances, viz. the statement of accounts in the paper book of James Dunn to Feb. 2G, 1798; the charge of balance by Waite to Dunn on adjustment of ship George’s accounts Oct. 4, 1799 ; the statement of account as annexed to the writ, and balance struck Aug. 15, 1801; and the decease of each of the parties at the end of the year 1805: were evidence in support of the issue on the second, third, fourth and fifth pleas ; that the death of the parties in law closed the accounts previously existing, which were no longer open and running, and that the jury ought therefore to find the second issue for the defendant. On these several points thus collectively considered, the Chief Justice referred the jury to his instructions upon each bf them separately as before stated.</p> <p>The last item of the charge in the account annexed was a sum of money paid to Pierson & Thatcher, Aug. 15, 1801. It appeared by the books of said firm that the original charge was duly made against Dunn ; and from the testimony of George Pierson, the surviving partner, it appeared that at the request of Waite the amount of the charge was transferred to his account with Pierson & Thatcher, and a corresponding credit of the amount entered to the account of Dunn, in these terms, viz. “ By carried to the account of William, Waite, which when paid is in full of this account;” Pierson also testified that Dunn had once or twice, some time previous, referred him to Waite for settlement of some small accounts; but that he had no particular direction from Dunn respecting this account; that Waite afterwards gave his promissory note for the amount, to the assignees of Pierson & Thatcher, who became bankrupts; but that the note was not negociable, and was never paid by Waite.</p> <p>On this evidence the defendant’s counsel contended that the assumption of Waite to pay this demand for Dunn was officious; that the circumstances proved did not amount to payment, nor shew a discharge of Dunn ; and that the charge for money paid Pierson & Thatcher could not be sustained. But the Chief Justice instructed the jury that if they should believe that the assignees of Pierson & Thatcher accepted the note in full satisfaction of the debt originally charged against Dunn, and transferred and charged to Waite, and that the transfer of the charge was made by the request or assent of Dunn, expressed of implied, then they were authorised to consider the debt so transferred and assumed by Waite and secured, as paid, in respect to Dunn; and that the plaintiff had a right to recover that amount in this action, though the note had never been paid; and that they would judge whether there was evidence of the implied assent •to the above arrangement on the part of Dunn, arising from the testimony, or from the circumstance of Waite’s paying debts for Dunn, such as are charged in the account sued.</p> <p>On the general issue, the defendant’s counsel also contended, that from the lapse of time since all dealings ceased between the said parties, who died more than twenty years before the commencement of the action, the jury were bound or warranted to presume payment and discharge. But the Chief Justice instructed them that though, after the lapse of twenty years, a bond, note or account, was presumed to be paid, yet such presumption might be repelled by facts and explanatory circumstances, such as payment of interest, acknowledgment of the debt, fee. That it was the practice of the courts to deduct eight years in the computation, on account of the revolutionary war; that-the mere poverty of a debtor was not sufficient to control the presumption', where (he parties lived in the same state or country ; but that where a debtor was abroad in a foreign country for twenty years, that fact rebutted the presumption; that the subject was for the consideration of the jury ; that according to the evidence Dunn left the state of Massachusetts and this country in the fall of 1799, and returned to Ireland, where he continued till his death in 1805 ; and that he was poor when he went away.</p> <p>The defendant’s counsel also contended that interest was not allowable on an account stated ; that the interest account could not be supported; that no interest could accrue after the death of Waite until demand made by his administrator; and that the parties were not accustomed to charge interest, in the settlement of accounts. But the Chief Justice instructed the jury that if they were satisfied, from the evidence of certain merchants who testified to that effect, that it was a custom among merchants to charge interest, and that Waite and Dunn adopted the usage, they might allow it on the account, excluding the period intervening between the death of Waite, till the appointment of an administrator.</p> <p>To which rulings and directions of the Chief Justice the counsel for the defendant filed exceptions, as by law provided ; the jury having found a verdict for the plaintiff, for $2031,96.</p> <p>After verdict the defendant filed a motion for a new trial, on the ground that Nathan Winslow, one of the jurors, was son-in-law to Samuel F. Hussey, one of the principal creditors of Waite, whose claim had been allowed by the commissioners on his estate; and that this fact was not known to, or not recollected by the defendant, his agent, or attornies, till near the close of the argument to the jury on the part of the plaintiff; after which, and before the cause was committed to the jury, the counsel for the defendant stated the fact to the Judge, who replied that the objection, if valid, could not then be made, but might be offered after verdict.</p> <p>In support of this motion, C. S. Davies, Esq. of counsel for the defendant made affidavit that he had no recollection of the circumstance that Hussey had any interest rn the event of the suit, till the trial of the cause was considerably advanced, when it was mentioned to him that Hussey sitting near the jury box, had been speaking to Winslow; — that he had not then any knowledge of their alliance, but knew they were numbers of the society of Friends; that he did not suspect the fact till it was mentioned to him immediately before it was communicated to the court; but,that he might formerly have heard that Winslow had married a daughter of Hussey.</p> <p>made affidavit that he had no knowledge that Hussey was a creditor of Waite’s estate till near the close of the argument for the plaintiff, to the best of his reeollectiou.</p> <p>by way of objection to the motion, filed the affidavit of Stephen Longfellow, Esq. one of said counsel, stating that at the trial of this cause in the court below, Hussey was offered as a witness for the plaintiff; that he was objected to by the counsel for the defendant, on the ground of his interest in the suit as a creditor of Waite; and that for this cause he was rejected by the court as incompetent to testify. They also filed the affidavit of Winslow, stating he did not know, till after verdict, that Hussey was a creditor, in his own right, to the estate of Waite. Winslow, on further examination, testified that he was present at the trial in the court below, and heard Hussey state something about his having a demand against Dunn’s estate as agent for some person or persons; but that he knew nothing about the facts till after the verdict was returned at the present term. Hussey also testified to his having been offered as a witness in the court below, and excluded on the ground of interest $ and further stated that since that trial he had distinctly informed Joseph 1\ Sherwood, the defendant’s agent, who was present at the trial, and had also stated to one of the defendant’s counsel, that he was a creditor to Waite’s estate.</p> <p>It being discovered after verdict that the blank in the writ which was left for the amount of the ad damnum had never been filled ; the counsel for the plaintiff moved for leave to amend it by inserting a sum sufficient to cover the amount of the verdict; which the defendant strenuously opposed.</p> <p>Both these motions, together with the points raised by the exceptions, stood over for argument before all the Judges,</p> <p>to the following effect.</p> <p>The first question is whether merchants’ accounts are, in any case, within the statute of limitations. The provisions of the English statute on this subject have been substantially copied into those of our own State, New York, Massachusetts, and others ; and the decisions upon them are generally in unison. In New York, the exception of merchants’ accounts, in the statute of that state, has been confined to open and current accounts only, and not to accounts stated, or, in the words of the rejoinder, ‘‘ liquidated and closed.” Ramchander v. Hammond, 2 Johns. 200. So is the doctrine stated in 2 Stark. Ev. 900, note a. The leading case at láw on this question, is, Web-ber v. Tivill, 2 Saund. 124, which is to the same point, and seems never to have been shaken. And the rule is the same in equity, as at law. It was held in an early case in chancery that the statute was no bar to an open account, though it was considered as applying to every other ; Scudemore v. White, 1 Wern. 456; and again that only open accounts were saved by the exceptionbut the case most frequently and respectfully resorted to as settling the principle, is that of Welford v. IAddel, 2 Wes. 400, where Ld. Hardwicke held that the defendant might plead the statute in all cases where the account is closed and concluded between the parties, and the dealings and transactions over. 2 Saund. 127 a ; Coster v. Murray, 5 Johns. Chan. Rep. 527; 3 Pick. 112; Martin v. Heathcote, 2 Eden 169} 1 Mad. Chan. 98; Foster v. Hodgson, 19 Wes. 133. It is difficult to discover any sensible or material distinction between the decisions which have been made on merchant’s accounts, and those on mutual accounts; and they seem to have been placed on the same footing by the decided cases. 19 Wes. 182; Cotes v. Harris, Bull. N. PJ49 ; Cranch v. Kirkman, Peakes JV. P. 121 ; 5 Johns. Ch. Rep. 524 ; Catling v. Skoulding, 6 JD. & F. 193. In this last case there is an obiter dictum of Ld. Kenyon, importing that merchants’ accounts are not within the statute, even though there had been no dealing of any kind within six years but this remark was regarded by Chancellor Kent as extra-judicial, the case showing credits on each side within six years. 5 Johns. Ch. Rep. 526 ; 3 Pick. 110; 19 Wes. 186. In the case of Crawford v. Liddel, cited in Jones v, Pingree. 6 Wes. 580, if was held by Ld. Roslyh that where all the transactions were over six years, the statute might be pleaded, as well to merchants’ accounts as others. And to the same effect is Duffv. The East India Co. 15 Wes. 199 ; and Barber v. Barber, 18 Wes. 286 ; and so is the rule laid down in Beamed PI. in equity p. 167, and in 1 Mad. Ch. 98. The English decisions on this subject are ably reviewed by the learned and sagacious Chancellor Kent in Coster v. Murray before cited; and the weight of authority pronounced to be in favor of the application of the statute to open merchants’- accounts, where all the items are above six years before the commencement of the action. This conclusion was also adopted in South Carolina, in Van Rohyn v. Vincent, 1 McCord 150. Davis v. Smith, 4 Greenl. 337. Thus it seems established, that if any transaction between the parties is within six years, there is no difference, in the operation of the statute, between -mutual accounts and merchants’ accounts; that when all the transactions are over , six years, the .statute may be pleaded as well to merchants’ accounts as to others; and that there is no difference,.as to the persons who are.parties to such-accounts, whether merchants or others, provided they relate to merchandize-; and no distinction is admitted between foreign and inland merchants.</p> <p>There being no apparent or established difference in doctrine, between merchant’s accounts, and mutual accounts ; it is difficult to see what distinction can prevail between them in practice or pleading. The denial that,accounts were merchants’ would be useless and unavailing, if. the case could be brought within the compass of mutual accounts; and the replication of merchants’ accounts, upon that principle, would always prevail, whether the accounts were in fact between merchants or not. Again, if it be holden necessary to prove a liquidation . of accounts previous to the prescription, to secure the protection of, the statute, the limitation, which applies alike to mutual accounts and merchant’s accounts would be entirely annulled. The limitation of the statute is in se, and ipso facto, a liquidation of accounts ; and the intention of the whole statute, as expounded in a long series of decisions, appears to be, to put an end to all accounts that have been standing over six years, unless their vitality can be preserved, or a new animation imparted to them within the period of prescription. How this effect can be produced where there have been no dealings or transactions between the parties within the time, and no recognition of their existence, or any continuance of any former concerns resulting from any living and operative cause, presents a difficulty, both upon the letter and the spirit of the statute, not easily to be surmounted.</p> <p>The result of an examination of all the existing authorities seems to be, that an open merchants’ account, and that only, is saved from the operation of the statute. Accounts may cease to be open, and become closed, by being stated; by which operation they become closed in form; or they may become closed by the cessation of dealings, and the operation of time; whereby they become closed in fact. But unless they remain open and current in fact, within six years, they are not protected against a plea of the statute.</p> <p>2. When the statute of limitations is pleaded, it is incumbent on the plaintiff to take his case out of it, and to show that his right of action did accrue within six years, and establish his allegation; or, by his replication, to bring his case within the exception. 1 Barnw. & Aid. 921 2 Stark. 887; 6 Mod. 309 ; 2 Saund. 64, a.; 6 D. & E. 192. The office of a plea in bar is to allege matter which, if true, destroys the claim made by the suit. Beane’s PI. 63. Such is the plea of the statute of limitations; which being pleaded, it is the business of the plaintiff to remove the bar. Hence the issue is' substantially on the replication. Now in the present case the replication affirms that the matter of the action was merchants’ accounts. But it has already been shown that these should not only be matters between merchants, or concerning merchandise, but also that the accounts should be open, current and continuing. Of this affirmation, there is a special denial in the rejoinder, which, not disputing what the character of the accounts might have been originally, avers that there were no open accounts between the parties within six years. The rejoinder admits that Waite and Dunn were merchants, and that they dealt together in merchandise ; but it denies the legal effect of such transactions as constituting what in law are called merchants’ accounts, by denying that they were open, or could be open between the parties, six years having elapsed since they had any dealings» It thus narrows the ground of the replication, by negativing the existence of one material ingredient. The surrejoinder is supplementary to the replication, which it supports and reiterates, concluding with a formal and technical traverse of the defendant’s denial that the accounts were open. On this special traverse issue was taken ; so that the issue is still on the original averment of the plaintiff; which it is necessary for him to make good, in order to extract his case from the statute, or to establish it as within the exception. The presumption of law, arising out of the very principle of the statute is that the subject matter of the action is, so to speak, dead $ and the burden of proof is on the plaintiff to show that it is alive. His caséis within the statute, unless he can show that which removes it from its operation. Gilb. Ev. 148 ; Bull. JY. P. 298.</p> <p>3. In point of fact, the account in the case at bar was stated Aug. 15, 1801, by the plaintiff’s intestate, who on that day struck a balance, which he carried forward to a new account, on which interest is charged. On that day, therefore, the statute of limitations attached to the account. The very basis of the charge of interest is that a sum certain was ascertained to be due ; in which case it is no longer an open and running account. Union Bank v. Knapp, 3 Pick. 96 ; 5 Dane's Abr. 394; 2 Saund. 124, 127, note a; 1 Ves. 209. To constitute a stated account, it is not necessary that it should be signed by the parties. The assent of the party to be charged may be inferred from lapse of time, without objection. jBeame’s PI. 230; 1 D. & E. 42 ; Sherman v. Sherman, 2 Vern. 276; Ficket v. Short, 2 Jltk. 252; Denton v. Skellard, 2 Ves. 239; 1 Mad. Ch. 101; Walden v. Sherburne, lb Johns. 409; Topham v. Braddock, 1 Taunt. 571. So also accounts are to be considered as technically closed by the death of either of the parties. Bridges v. Mitchell, Gilb. Eq. Rep. 225 ; Story’s PI. 91. Hence the instructions of the judge to the jury that the words “ liquidated and closed” implied the operation of the minds of the parties, were incorrect; as this principle would go to exclude the rule of law as laid down in the cases already cited. 2 Stark. Rep. 397 ; 3 Stark. Ev. 1090. The courts of equity proceed on the same rule, in refusing to decree an account after an extraordinary lapse of time. Foster v. Hodgson, 19 Ves. 179; Ed. Pomfretv. Ed. Winsor, 1 Ves. 482; Smith v. Clay, Amb. 645 ; 3 Bro. Ch. Ca. 639; 1 Mad. Ch. 99 ; 2 Sch. & Lefr. 639 ; Hercey v. Dinwoody, 4 Bro. Ch. Ca. 257; Havenden v. Ld. Armesley, 2. Sch. & Lefr. 607. The true principle of law, to be deduced from all these authorities, is, that after the lapse of a reasonable time, an accounting will be presumed ; and that this is the only probable presumption ; to raise which the lapse of .even fourteen years has been held amply sufficient.</p> <p>This presumption is corroborated by the evidence furnished by the plaintiff The case shows a charge, made Oct. 4, 1799, as the balance of the accounts of the ship George, adjusted on that day, which were the only matters of merchants5 accounts pretended to exist between the parties; and which is, of itself, evidence of an account then stated. And a still more important piece of evidence to this poirit was exhibited by the plaintiff, in the paper book in the handwriting of Dunn, which was a mutual statement of all their concerns up to Feb. 1798, a year after the capture and condemnation of the ship ; and after the spes recuperandi was forever lost. It was at least an account 'stated and rendered by Dunn, and received by Waite without objection. On this point the instructions of the judge did not set forth the whole law to the jury, nor shed the light necessary for their direction. They were not informed, that the paper book was of itself, and so far, evidence of an "account stated ; nor were they instructed as to the degree and bearing of the evidence, and its proper influence to establish that conclusion $ nor in the legal presumption inseparable from this proof, in the absence of any positive evidence to the contrary. Nor were they instructed, as it is contended they should have been, that from the mutilated condition of this piece of evidence, part of its last leaf, and perhaps others, being wanting, every presumption was to be made in favor of the defendant, against the party in whose possession it Was found. It is always incumbent on the party producing mutilated documents, to account for their want of entireness. Bull. N. P. 255. Such is the spirit of the doctrine of the onus probandi in Ross v. Gould, 4 Greenl. 204; 1 Inst. 225 a ; Match v. Match, 9 Mass. 312; 10 Co. 92 ; 1 Phil. Ev. 264,347; King v. Castleton, 6 D. & E. 236 ; 1 Stark. Ev. 370, 291 ; Gilb. Ev. 44. If the paper book be considered as the admission of Dunn, as it was treated at the trial, by the plaintiff, then, on this ground, the whole should have been taken together; and for defect of the whole, the part offered should have been excluded. Bull. N. P. 237 • Randall v. Blackburn, 5 Taunt. 245 ; Kirkpatrick v. Love, Jhnbl. 589 ; 1 Stark. Ev. 372. But being admitted, inasmuch as it purported to be a statement of accounts long after the principal subject of their dealings was lost, the rule of omniapreesum* unturrite et solenniter esse acta was strictly applicable ;■ and here also the jury should have been directed to presume that the lost portion of the last remaining leaf contained a final statement and liquidation of the account. This rule has been particularly applied in favor of the perfectness of transactions, in Colman v. Anderson, 10 Mass. 105 ; Pejepscot Proprietors v. Ransom, 14 Mass. 145 5 Blossom v. Cannon, ib. 176 ; Gray v. Gardiner, 3 Mass. 399.</p> <p>4. On the general issue, the presumption of law, arising from the lapse of twenty years, is that the debt was paid. This rule is simple, unqualified and imperative. The lapse of time holds the place of particular and individual belief. The presumption arises because there are no means of belief or disbelief. The law concludes, definitively and absolutely, that the obligor or covenantor has in that long time lost his receipts and vouchers; or that the witnesses, who could prove the payment, are dead. The judges, as is said in Grantwiclc v. Simpson, 2 Jltlc. 144, have bound it down as an irreversible rule, that if there be no demand for money due on a bond for twenty years, they will direct a jury to find it satisfied, from the presumption arising from length of time. Oswald v. Legh, 1 D. & E. 270 5 Henderson v. Lewis, 9 Serg. & Rawle, 379 ; Giles v. Barremore.,5 Johns. Chan. 545. And so, it is contended, the jury in the case at bar should have been instructed.</p> <p>5. The books of William Waite, and the promissory note of Dunn for fifteen dollars, payable to John Waite, with the indorsement thereon of the receipt of its amount from William Waite, were not admissible to support the charge of that sum as paid for Dunn’s receipt. That the book itself is inadmissible for this purpose, even with the suppletory oath of the party, is clear from the case of Prince v. Smith, 4 Mass. 455 ; it being a case of the payment of money to a third person, and therefore in its nature susceptible of better evidence. No request of Dunn was proved ; without which it was an officious payment, and not recoverable. Exall v. Patridge, 8 D. & JE. 30S; Kilgour v. Finlay son, 1 H. Bl. 155; Child v. Moseley, 8 D. &f E. 613; 2 Comyn on Contr. 151. The charge, moreover, is for money paid for Dunn’s receipt taken up ; but the evidence offered is a promissory note. No receipt was produced ; nor any evidence offered of its loss. But if the paper were a receipt, it would not be sufficient evidence of itself, without proof of a request from Dunn.</p> <p>6. The jury should have beeu directed not to allow the charge of money paid for Dunn to Pierson & Thacher. He was not discharged of the debt on their books; the credit being for Waite’s note, to be in full of the account when paid. Nor was the note thus given a negotiable note ; and therefore it was not of itself a satisfaction. Neither was it ever paid. Banorgee v. Hovey, 5 Mass. 11; Thatcher v. Dinsmore, 5 Mass. 299; Maneely v. McGee, 6 Mass. 143 ; Johnson v. Johnson, 11 Mass. 359. Nor was there any ground for the jury to believe it was so received; nor any evidence from which they could presume that this debt was assumed at Dunn’s request. On the contrary, the evidence was against such presumption. Waite, in the most favorable light for the plaintiff, was merely the surety oí Dunn ; and as such could not call on his principal till actual payment. Rowell v. Smith, 8 Johns. 249.</p> <p>7. The charge of interest, upon the plaintiff’s own principles, could not be sustained, the account being treated as open and un-liquidated. If it was not so, it is barred by the statute. If it was, then no interest was chargeable unless by the custom of the place. And this custom, if any existed, it was apparent from the books themselves that the parties never had adopted; and so the jury should have been instructed.</p> <p>8. Touching the motion to amend the ad damnum, the proposed amendment is not matter of form, but of substance. 1 C1 kitty PL 398; 1 Bac. Mr. tit. Amendment E; Bonner v. Charelton, 5 East 140; Wray v. Usier, 2 Stra. 1110; Percival v. Spencer,Yah. 45 ; Benger v. Kortwright, 4 Johns. 415. And this being true, it cannot be made after verdict. Curtis v. Lawrence, 17 Johns. Ill ; Grosoenor v. Danforth, 16 Mass. 74; 6 Dane’s Abr. eh. 184, art. 5, sec. 10 ; Burle v. Barnard, 4 Johns. 309 ; Burr v. Thomas ib. 190; Marriott v. Usier, 2 Wils. 147 ; Paine v. Bustin, l Star7e. Rep. CO ; Iloit v. Malony, 2 JY. '¡lamp. 322.</p> <p>cited the following authorities. That the balance of the ship George’s account being carried forward, became merely an item in the account current, and so not within the statute; Farrington v. Lee, 1 Mod. 270; expounded in Union Bank v. Knapp, 3 Pick. 111. That the liquida tion and closing of accounts imported some joint act of the parties ; the death of one not being sufficient; Bass v. Bass, 6 Pick. 362 ; Webber v. Tivell, 2 Saund. 125, note 6; Truman v. Hurst, 1 D. & E. 40. That merchants’ accounts are not within the statute, though no item is within six years; Oswald v. Legh, ID. & E. 270 ; Catling v. SJcoulding, 6 D. & E. 189 ; Jones v. Pengree, 6 Ves. 580; Foster v. Hodgson, 19 Fes. 180; Willard v. Dorr, 3 Mason, 164; 1 Ball & Beatty, 119 ; 2 Sell. & Lefr. 632 ; 10 Ves. 466; 15 Ves. 496; 1 Ves. &f Beams, 539; Mandeville v. Wilson, 5 Cranch 15 ; Davis v. Smith, 4 Qreenl. 339 ; Murray v. Cos-ier, 20 Johns. 582; Styles v. Donaldson, 2 Dal. 196 ; Franklin v. Camp, 1 Coose 196; Van Rhyn v. Vincent, 1 McCord 310; Richards v. The Maryland Ins. Co. 8 Cranch 84; Ballantine on Dim. 71, 73, 81, 82- That the note of a third person, accepted in payment, is a discharge of the debt; Maneely v.‘ McGee, 5 Mass. 299; Wiseman v. Lyman, 7 Mass. 286; Ellis v. Wild, 6 Mass. 321; Hob. 69 note ; and that the maker may recover the amount, though he has not paid the note; Sheehy v. Mandeville, 6 Cranch 311; Cornwall v. Gould, 4 Pick. 444 ; Witherbee v. Mann, 11 Johns. 518 ; Gallagher v. Roberts, 1 Wash. C. C. R. 320 ; Parker v. United States, 1 Pet. C. C. R. 262. That the lapse of twenty years was merely presumptive evidence of payment, liable to be rebutted by other evidence; Cowp. 214; 3 Dane’s Abr. 506 ; Dunlap v. Ball, 2 Cranch 184. That the jury were rightly instructed on the point of interest; Selleck v. French, 1 Conn. 32. That the objection to the juror came too late; and was not valid at any time ; Jeffries v. Randall, 14 Mass. 205 ; Fellow’s case, 5 Greenl. 333 ; 6 Dane’s Abr. 248. And that the motion to amend was allowable; Bogart v. McDonald, 2 Johns. Ca. 219 ; St at. 1821, ch. 59, sec. 16; 5 Dane’s Abr. 436 ; 7 D. & E. 699; Danielson v. Andrews, 1 Pick. 156; Haynes v. Morgan, 3 Mass. 208 ; Perkins v. Burbank, 2 Mass. 83; Bullard v. The Nantucket Bank, 5 Mass. 99 ; Putnam v. Hall, 3 Pick. 445 ; Williatns v. The Hingham Turnpike, 4 Pick. 349.</p>

In this case, which was scire facias against the indorser of a writ, the question turned upon the point presented in the fourth set of pleadings. The plaintiff, in his writ, set forth in the usual manner the recovery of a judgment in his favor, for costs, against the Pejep-scot proprietors, in a case in which the defendant had indorsed the origina lwrit; and alleged the suing out of execution, with the sheriff’s return thereon in these words: — “ Cumberland, ss. Nov. 3, 1823.

<p>A creditor, whose debt is secured by the pledge of goods in his hands of greater value than thh amount of the debt, but without power to sell, cannot be iiolden as the trustee of the debtor for the surplus, in the absence of any fraud.</p>

This action, which was a general assumpsit, was brought by the agent of the Methodist society in Baldwin, against the treasurer of the trustees of the ministerial fund in that town, to try the title of the society to a portion of that fund, or of the interest thereof, by virtue of a vote of the town.

<p>Where one requested permission to bring an action for his own benefit, in the name of another, against a third person, to recover a debt supposed to be due, promising to indemnify the nominal plaintiff against all damages; such promise was held lawful and binding, being neither against good morals nor public policy, nor within the statute of frauds.</p>

In this action, which was assumpsit, the plaintiff, in the first count, charged the defendant with money had and received.

This wás a writ of entry on the demandant’s own seisin, and a disseisin by the tenant; who pleaded in bar that he was not tenant of the freehold. ■ In a case stated by the parties, it appeared that the tenant had mortgaged the premises to one John B. Lord ; that afterwards the demandant, being a judgment creditor of the tenant, had caused his right in equity to be seised and sold on execution, and had himself regularly become the purchaser at the sheriff’s sale, Aug. 20,1827…

After a verdict for the defendant in this cause, the plaintiff moved the court to set it aside; — first, because the jury, after being charged with the cause, and having retired to deliberate upon it, received and were influenced by the declarations of one of their fellows, discrediting a material witness for the plaintiff; and secondly, because after they retired, and before the verdict was agreed upon, they were fur* nished with divers refreshments, in meats and drinks.

<p>Where an insolvent debtor makes a general assignment of his effects, in trust for the benefit of such of his creditors as should, within a certain time, become parties, and release their demands; a recusant creditor, who attaches the property in the hands of the assignees by a foreign attachment, is entitled to payment in preference to those who executed the assignment subsequent to such attachment, notwithstanding the covenant of the assignees to pay, pro rata, all the creditors who might become parties to the assignment.</p>

In this case, which was a writ of entry on the seisin of the deman-dant, both parties claimed title under one David Lovering; the de-mandant claiming by deed from him, dated Aug. 26,1820; and the tenant by virtue of the extent of an execution in his own favor against Lovering, April 5, 1823. The judgment was recovered, upon a promissory note, made in 1812.

Assumpsit on a promissory note, made Sept. 12, 1826, for $870, 21, payable to Elijah D. Harris or order in twelve months, with interest after six months, and iby him indorsed to the plaintiffs. No payments were indorsed on the note.

The persons summoned as trustees in this case were the assignees of John Cose, iti a general assignment of his property for the benefit of his creditors; and the question was upon the validity of the assignment.

<p>Where all the trustees in a foreign attachment live in one county, and the defendant in another, and the action is brought in the latter county, the writ is abate-able, within Stat. 1821, ch. 61; notwithstanding the defendant was regularly summoned in the action, and the plaintiff had discontinued as to all the trustees. And in such case costs will be awarded to the defendant.</p>

This was a writ of error coram vobis, to reverse the judgment of the court of Common Pleas in this county, in an action brought by Prince as administrator of the estate of Cushing Prince, deceased, to recover damages against the town of Cumberland, for the amount of certain taxes illegally assessed.

<p>. This court, in the exercise of its general power to grant reviews in all cases, will not sustain an application for the review of an action in a justice’s court, where the party grieved may have redress in the court of Common Pleas.</p>

The defendant was indicted for undertaking and presuming to be a common seller of strong liquors by retail, without license or allowance therefor ; contrary to Stat. 1821, ch. 133 ; and being convicted, he moved in arrest of judgment, on the ground that the statute itself was unconstitutional. argued that the statute infringed the constitutional right of “ acquiring, possessing and protecting property.” Art. 1, sec. 1.

This was an action of replevin of five horses and certain furniture, chair and cabinet stock, Sic.; brought by John Hale against James Smith, a deputy sheriff; who pleaded property in one March ; against whom he held certain precepts, on which he had attached the property in question. The issue was upon the property in the plaintiff.

Thts was an action of trespass vi et armis for false imprisonment; which was tried before Perham J. in the court of Common Pleas, upon the general issue, with leave to give any special matter in evidence.

<p>Tins was art action of covenant on an indenture of five parts, iu wide,!’ ?;'u itlsr :!ff covenanted “within the space of three months, (unavoiuable accidents excepted,) next ensuing the date” of the indenture, “ iu a good, substantial and workmanlike manner” to build a certain mill-dam for the defendants. The defendants after oyer, pleaded, among other things, in bar of the action, “ that the .plaintiffs did not, within three months from the date of said writing, in a good, substantial and workmanlike manner, erect, build and finish said mill-dam, according to the true intent and meaning of the said covenants and agreements of them the said plaintiffs ; and this,” &c. To which the-plaintiffs démurred specially, for duplicity.</p> <p>The demurrer was briefly spoken to by</p> <p>after which the opinion of the Court was delivered by</p>

<p>This was an action of trespass quart clausum fregit, for entering tbe plaintiff’s lands in Andover, cutting down his grass, and taking and carrying away bis mill-stones and mill-irons.</p> <p>At the trial before Weston J. it appeared that the plaintiff, who was an inhabitant of Massachusetts, purchased, some twenty years ago, the farm in question, for the avowed purpose of affording a homo and subsistence, during life, to his brother Robert, who was in embarrassed circumstances. Robert entered and occupied the premises ever after, sometimes calling the farm his own, paying the taxes, which were assessed in his name, and cutting and sawing the timber at his pleasure. At the time of the purchase, a grist-mill was standing on the premises ; which being afterwards burnt, Robert rebuilt it, with the gratuitous aid of some of his townsmen, inserting into it the mill-stones and mill-irons in question, which had belonged to a mill of his own in Bethel, which was destroyed by a freshet., Robert occupied this new mill as his own for ten or fourteen years, taking the profits to his own use, till it was swept off by a freshet in 1819 or 1820 ; immediately after which he took the mill-stones and irons out of the river, and deposited them at the side of the highway on the farm, offering them for sale, and disposing of part of them; where they remained till the defendants, who were judgment creditors of Robert, caused them to be taken and sold, to satisfy their execution. In all these transactions Robert acted under a contract with the plaintiff, as his agent; and there was no evidence tending to fix on the plaintiff the imputation of fraud, or to create a doubt but that his motive was solely to assist and relieve his brother.</p> <p>Upon this evidence the judge instructed the jury that the grist-mill, when rebuilt, became the property of the plaintiff, who would be holden to account to Robert for the value of any materials or labor furnished fay him ; and that it being the property of the plaintiff in its entire state, the parts and fragments, after it was broken, continued to be his property. The jury hereupon returned a verdict for the plaintiff, for the value of the mill-stones and irons ; which was taken subject to the opinion of the court upon the correctness of the judge’s instructions.</p> <p>at the opening of the argument at this term, suggested that the plaintiff had died since the verdict'was returned ; and he moved for judgment nunc pro tunc ; observing that the court had power to do this, by the common law, as well before as after a curia advisare vult. And to the principal question raised at the trial, he cited Elwes v. Maw, 3 East 38 ; 3 Dane’s -JIbr. 145 ; Lifford’s case, 11 Co. 46.; 6 Mod. 187; Fenton v. Robarts, 2 East 88; 1 Salk. 368; Farrar v. Stackpole, ante p. 154; Goddard v. Chase, 7 Mass. 432 ; Union Bank v. Emerson, 15 Mass. 159.</p> <p>contended that the severance of the stones and irons from the mill was not temporary, and for re-insertion ; but for a final separation. If the debtor, as agent for the plaintiff, had put his own machinery into the'miil, he had in the same character taken it away, and treated it as his own. The articles, therefore, not belonging to the soil, might well be seized and sold by creditors. Simpson v. Jrlart op, Willes, 516 ; 9 Dane’s Abr. 273; Ricker v. Kelly, 1 Greenl. 117; Pyne v. Dorr, 1 D. & E. 55; Fan JVess y. Packard, 2 Pet. 143.</p>

This was a writ of entry, in which the demandants counted on their own seisin of the lot JYo. 33, in range B. in the town of Brownfield; and a disseisin by the tenant. The controversy was upon the title of the demandants to this lot, as one of the lots reserved in the grant and designated in the division of the township of Porterfield, for the first settled minister.

This was a writ of entry, brought by the heirs of Samuel Blake, in which they counted on their own seisin within twenty years, and a disseisin by the tenant. It was tried before Parris J. upon the issue of nul disseisin. The subject of controversy was a certain mill-yard and appurtenances, originally part of lot JVo. 96, in Turner ; and the question •was whether the tenant owned it in fee, or whether he had only an easement therein.

Assumpsit on three promissory notes made by the defendant, and payable to the plaintiffs ; to which the general issue was pleaded» Of the sum demanded, the defendant resisted the payment of only one hundred dollars and interest, being the amount of his subscription to the congregational fund in Fryeburg.

<p>The election of the moderator of a parish meeting will be valid, though the meeting was called to order, and the votes were received and declared, by a private patishoner, who assumed that authority to himself.</p> <p>Ceasing to attend the religious and secular meetings of a parish, and attending the worship and supporting the ministers of another denomination, for any length of time, will not alone amount to a renunciation of membership in the parish thus left 5 the only mode of withdrawing, without a change of residence, being by notice in writing, as provided in Stat. 1821, eh. 135.</p> <p>A subscription to raise money for the support of public worship whenever a minister of a particular sect could be procured, is not the formation of an unincorporated religious society, within Stat. 1811, ch. 6.</p>

This was an action of trover for a dwelling house, barn and shop ; and was tried before Parris J. upon the general issue. It was admitted that the defendant, ¡Joseph Howard, was owner of the land on which the buildings were erected ; and it was proved that he had permitted his son Henry to occupy the land ; by whom the buildings were erected, with the consent and assistance of the .defendant..

This was an action of debt on a gaol-bond, taken pursuant to Stat. 1824, ch. 282; conditioned that the debtor should appear at the house of a certain justice of the quorum on a certain day, being the day appointed for taking the poor debtor’s oath ; and in case the justices to whom the notification might be returned should not allow his discharge, that he should, within ten days thereafter, surrender himself to the officer who made the arrest, or to the keeper of the goal.

This was an action of debt, on a bond given to Barnabas Brack-ett, the plaintiff’s predecessor in office, as treasurer of the town of Denmark, and to his successors, by Henry Warren, the principal defendant, conditioned for his faithful execution of the office of collector of taxes in that town, for the year 1820.

<p>Prosecutions under the bastardy-act of 1821 ch. 72, are not local.</p> <p>It is essential, to a prosecution under Stat. 1821, ch. 72, that the mother of an illegitimate child accuse the putative father during her travail, and before delivery. Put it is not essential that this fact be alleged in her complaint, since this may be made bofore the event has happened.</p>

<p>A husband and wife having separated, pursuant to articles previously entered into, in which he had stipulated that in the event of such separation the children should remain with her; the court, on habeas corpus sued out at his request, ordered the children into the custody of .the mother, pursuant to the articles of separation; she living with her father, and they being of an age to require her care.</p> <p>JJut independent of such articles, the court, in such cases, in the exercise of its sound discretion, and for the good of the children, will only free them from undue and improper restraint; the father having no yested right, in any case, to the exclusive custody of his children.</p>

This was an action of assumpsit, against the administratrix on the estate of .the late Joseph Sprague, Esq. a counsellor of this court; in which the plaintiff declared on a general undertaking and promise of the intestate, in consideration of his fees to be paid, to conduct a certain suit in a proper, skilful and diligent manner; and for the securing of the debt sued for in that action, to sue out execution upon' the'judgment, and deliver it to an officer within thirty days…

This was action for supplies furnished to the defendant’s vessel by order of the master ; and came up by exceptions to a nonsuit or-áevedpro forma by Smith J. by consent of parties in the court below.- It appeared that in 1825 the vessel was conveyed to the defendant in mortgage, by Alexander Staples; the conveyance being apparently absolute, and a separate bond of defeazance being executed at the same time.

<p>•Though the payee of a promissory note indorsed it merely to give it currency, knowing, at the same time, the insolvency of the maker; this, it seems, does pot excuse the want of a démand, and notice to the indorser.</p>

At the hearing of this case, Mien, for the petitioners, offered as witnesses several persons whose names, and the testimony expected from them, were not mentioned in the petition. objected that the respondents had come prepared to meet only the facts and witnesses stated in the petition ; and that to admit new. matter, or to call other persons to testify, would render the notice given to the respondents altogether illusive.