Volume 7 — Maine Reports

<p>This was an action of assumpsit on a written contract, signed by the defendants, Sept. 2,1818, and expressed in these terms: — “ This may certify that we the subscribers have this day sold to Messrs. John & Daniel Judkins, four clapboard machines and two shingle machines, and all their apparatus thereunto belonging, water wheel and drums, in Messrs. Dwight & John Stone’s building in Liver-more, on Androscoggin river 5 and likewise the patent right for Liv-ermore and Jay, all that is east of the Androscoggin river, and the town of Dh field in the county of Oxford; in consideration of nine hundred dollars paid in notes for clapboards ; we sell all the above machinery and right for the above towns, to make, use, and vend to others to use, during the term of the patent, which is fourteen years from the third day of Sept. 1813; provided the above named John & Daniel pay or cause to be paid two notes for clapboards which they have signed this day to be paid in Hallowell, to the amount of nine hundred dollars,” &c. In the declaration a promise of the defendants was alleged, by this writing, that there was a patent right for the clapboard, as well as for the shingle machine; and a breach was stated in the fact that there was no such patent right for the former, though there was one for the latter.</p> <p>At the trial before Weston J. he ruled that the writing ought to be construed as an undertaking to convey a patent right for both kinds of machines. And it was proved that the defendants had no patent for the clapboard machine, unless the patent for the shingle machine could be so applied.</p> <p>The defendants proved that soon after the sale, by reason of the new and improved invention of a circular saw, the machines for sawing clapboards were so far superseded as to become of very little value; and were never imitated in the territory described in the contract ; but that the plaintiffs always had the exclusive use and enjoyment of them.</p> <p>The plaintiffs proved that on calculating the value of the machines and the value of the patent right for the shingle machine, the latter would amount to about 475 dollars; leaving the residue as paid for the purchase of a patent for the clapboard machine.</p> <p>Hereupon the counsel for the defendants contended that to ascertain the damages, the jury ought to fiad how much the plaintiffs would have been benefitted had there been a patént for the clapboard machine, more than they had been by the purchase without a patent; and to award this difference alone, as the plaintiffs’ damages ; and that to entitle them to the consideration actually paid, the clapboard machines should have been returned. But the judge instructed the jury to find in damages for the plaintiffs to the amount of such part of the original consideration as was paid for the supposed patent right for the clapboard machine ; which they accordingly did. And the verdict was taken subject to the opinion of the court upon the correctness of these opinions of the judge who sat in the trial.</p> <p>contended that by the language of the contract only one patent right was intended to be conveyed. The singular number being employed, and the date of the patent being given, no reasonable man could mistake the intention of granting one right, to be applied, so far as it was applicable, to both the kinds of machine sold. This construction satisfies the words of the contract ; and avoids the necessity of presuming that the party fraudulently undertook to sell what he knew he did not own.</p> <p>As to the damages, the rule ought to be the same which should be applied to the plaintiffs had they been sued for a violation of the patent right, — viz. the damages actually sustained. Here the plaintiffs had the benefit of any enhanced value of the right; and they alone ought to bear the loss occasioned by its diminution. But whatever may be the rule, the machines themselves should have been returned, before any damages can be claimed. Chitiy on Contr. 137 ; Conner v. Henderson, 15 Muss. 319; 2 Stark. Ev. 604; 5 East. 449 ; 1 Taunt. 566 ; 3 Stark. Rep. 32; Kimball v. Cunningham, 4 Mass. 502.</p>

This was an action of the case against the defendant as a deputy sheriff of this county, for violation of-his duty in relation to the extent of an execution in favor of the plaintiff against one Love-joy — first, in falsely returning that he had caused the appraisers to be sworn, whereas they were not sworn; and secondly in not causing them to be sworn.

<p>In an action for contribution, between the sureties of a collector of taxes, for money paid by one of them 'without suit, the town treasurer is a competent witness to1 prove the collector’s delinquency.</p> <p>Where the collector of a town had given bond with sureties, conditioned for the faithful collection of the town taxes ; and afterwards had given another bond, with other sureties, for the faithful collection of a school-house tax; after which he paid over a large sum of money to the treasurer, taking his receipt, in which he promised to account for that sum to the town; it was held, — in an action for contribution between the sureties on the first bond, one of whom had voluntarily paid the amount of an alleged delinquency, — that parol testimony was admissible to prove that the sum thus paid included the amount of the schoolhouse tax, which had accordingly been paid over by the treasurer, by direction of the collector; and that therefore the deficiency existed only in the first bond.</p>

This case, which was briefly spoken to by Hutchinson for the plaintiff, and Wells for the defendant, is stated in the opinion of the Court afterwards delivered by

This was an action of assumpsit brought to recover the balance of an account for a quantity of pine timber. The defendants pleaded the general issue, and the statute of limitations.

Assumpsit by the indorsee against the maker of a promissory note, dated December 4, 1827, payable to Henry Bice & Co. or order, on demand, with interest after six months. The action was commenced January 10, 1829, and was tried before Weston J. ; the question being whether the note was legally transferred to the plaintiff, before the commencement of the action.

<p>Where the mortgagee, after entry for condition broken, conveyed the premises in fee, in distinct parcels, to two others, it was held that they were properly joined as defendants in a hill to redeem.</p> <p>in computing fho three years after entry for condition broken, within winch a mortgagor may redeem, the day of entry is lo he excluded.</p> <p>Where a mortgage has been assigned, and the assignee has entered and is in possession, the tender, under Stat. 1821, eh. 3!), is to be made to him, and not to the original mortgagee.</p> <p>Tender of money in a bag, made at the window of a house, to redeem a mortgage, tile creditor being at the window, and not admitting the debtor within the house, is sufficient.</p> <p>But suelx tender, made after day light is gone, is loo late.</p>

<p>This was a writ of entry, brought by William H. Stevens, in which both parties claimed title to the premises, under one Joshua Stevens.</p> <p>The demandant’s title was by deed from Stevens, dated July 15, 1817, and immediately registered.</p> <p>The tenant’s title was under an attachment made July 7,1817, on a writ in favor of the Gardiner bank against several defendants, of whom Joshua Stevens was one; which was followed by a regular judgment and execution, extended Jan. 15, 1818, being within thirty days after the judgment, and seasonably recorded and returned. The premises thus taken were assigned by the Gardiner bank, Jan. 25, 1819, to Cyrus Carlton, for the consideration of one dollar % and by him conveyed, through several mesne conveyances, to the tenant.</p> <p>To defeat this apparent title of the tenant, the demandant proved, by the officer who had the execution, that within fifteen days after judgment he called for certain goods of one Henry Carlton, another of the judgment debtors, which had been attached on the original writ, and were sufficient to have satisfied the execution ; — that to liberate these goods, Cyrus, by advice of the officer, procured the money by loan from the Kennebec bank, and paid it to the officer, taking his receipt for the amount of the execution and all fees ; and thereupon the officer delivered the execution, without any indorsement thereon, to Cyrus, in order that he might cause it to be satisfied out of the property of the other debtors. Cyrus Carlton was not one of the debtors ; and his brother Henry was absent at this time ; but on his return approved what Cyrus had done; and paid the note given by him to the Kennebec bank, when it fell due. The money received by the officer was paid over to the creditors within ■ forty-eight hours ; but he had no authority from them, except io collect the money.</p> <p>ft further appeared that the goods attached belonged jointly to-Cyrus and Henry, who had been partners in trade, but had dissolved partnership, the goods being left in the hands of Cyrus, undivided ; that the object of Cyrus in advancing the money, as avowed' by him, was to liberate his brother’s property, and obtain the control' of the execution ; that the directors of the Gardiner bank, after the money was paid over to their attorney, appointed an appraiser, by a vote passed Jan. 14, 1819, and authorised Cyrus Carlton as their agent to receive seisin of the land extended upon; — and that after the extent, Joshua Stevens called on his co-sureties for contribution, from two of whom he received it.</p> <p>Upon this evidence, by direction of Weston J., before whom the cause was tried, a default was entered against the tenant, subject to the opinion of the court upon the sufficiency of his title ; the question of increased value being provided for by a special agreement of the parties.</p> <p>argued that the transaction between the officer and Cyrus Carlton did not amount to payment of the exe-cutioh, so as to render it functus officio ; because it was not the act of one of the judgment debtors, but of a stranger ; and was done without authority at the time ; and not on the credit of the debtor, however satisfactory to him afterwards, It was therefore merely a purchase and assignment of the execution, intended as such between the purchaser and the officer at the time, and so treated subsequently by the bank. Mien v. Holden, 9 Mass. 1S3 ; Norton v. Soule, 2 Greenl. 341 ; Cheesborough v. Millard, 1 Johns. Ch. 409; Mto. Gen. v. Tyndal .Jlmbl. 614; Jlmory v. Williams, 14 Mass. 20.</p> <p>cited Clerk v. Withers, 11 Mod. 34; 5 Dane’s Mr. ch. 136, art. 13, sec. 2, 3, 4; 3 Dane’s Hbr. ch. lb, art. 12, sec. 10; Reed v. Pruyn, 1 Johns. 426; Sherman v. Boyce, 15 Johns. 443; Brackett v. Winslow, 17 Mass. 153; Hammatt v. Wyman, 9 Mass. 138.</p>

This was a writ of dower unde nihil habet, and came before the court upon a case stated by the parties. The premises were purchased of John Sewall, by the husband of the demandant, Jan. and at the same time to Sewall ta secure payment of. the purchase-money ; the demandant joining with her husband in the deed of mortgage, by releasing her right of dower, in the usual form.

In this action, which was case for money had and received, a new trial having been granted, [see 6 Greenl. 142.] the plaintiff sought to recover against the defendant the amount of a mistake committed in computing the sum due from him to the defendant, for which he had given a recognizance, pursuant to the statute ; which had been satisfied by an extent on Ms land. admitted parol testimony to prove that the recognizance was accidentally taken for more than was due from the…

<p>In this case, — which was assumpsit upon two promissory notes made Jaw. 23, 1823, payable in six and seven years, with interest annually, but on which no interest had been paid nor demanded, for years, — the question was whether, in computing the sum now due, interest should be cast upon the accruing interest of each year, from the time it became due.</p> <p>This question was briefly spoken to by Boutelle, for the plaintiff, •and W. W. Fuller for the defendant; and the opinion of the Court was delivered in Cumberland, in August following, by</p>

This was an action of assumpsit brought under a special resolve of the legislature, passed M.arch 5, 1829, for the price of a quantity of hammered stone ; the defendants having leave to claim in offset the amount of damages occasioned by any breach of the contract. At the trial, before Weston J. the defendants offered Mr. Cutter¿ one of the trustees, as a witness.

This was an indictment for lewd and lascivious cohabitation, tried before Parris J. To prove the marriage, the government relied on evidence of the following facts. The prisoner removed from New Hampshire into Maine about twenty years since. Soon afterwards be sent a person after “ his wife and family ;” who brought to him a woman and two children, whom lie received and treated as his wife and children, calling the woman his wife.

This was a writ of entry, tried before Weston J. The parties were owners of adjoining house-lots in Gardiner. Both claimed title under the same grantor ; and both deeds referred to Adams’s plan of the lots granted. It was merely a question of boundary between them. It appeared that a tract containing the premises had been originally surveyed into lots by one Hobart, who fixed monuments at the corners of the lots, and made a plan of the whole survey.

<p>After verdict, the court will support the declaration by every legal intendment, if' there is nothing material on record to prevent it.</p> <p>Therefore where the plaintiff declared against, a town, that a certain bridge in it was out of repair, by reason whereof to horse, of the value of seventy five dollars, harnessed in a chaise, was drowned, and the harness injured to the value of fifteen dollars ; and the jury found for the plaintiff, with damages to tho amount of seventy two dollars and fifty cents the declaration, after verdict, was held well enough, the damages being taken to refer to the horse which the plaintiff alleged to be his, and not to the harness, to which he did not set forth any title.</p> <p>Whether the merits of a motion in arrest of judgment, made in the court below for defects apparent on the face of the declaration, can be brought before this court by summary exceptions, under Stat. 1821, ch. 93, sec. 5, — dubitatur.</p>

<p>If the party, entitled to repudiate a contract because it has not been performed in reasonable time, does any act which amounts to an admission of the existence of the contract, he cannot afterwards elect to treat it as void.</p> <p>Thus, where one in possession of land not his own, bargained with the true owner for a title, and gave his promissory notes for the purchase-money, the owner stipulating in writing to give a deed in a reasonable time; which was not done; but the purchaser continued in possession, and afterwards sold his interest in the land, his grantee undertaking to procure and deliver up the notes; — it was held, in an action brought to recover payment of one of these notes, that the want of a seasonable delivery of the deed was cured by the subsequent conduct of the purchaser; and that he was bound to pay the notes; having his remedy still, on the contract to deliver the deed.</p>

' This was a writ of entry, upon the demandant’s own seisin, and a disseisin by Elizabeth Wadleigh, the tenant; who pleaded that one Jacob Cilly was the true and lawful owner of the premises, and that she was his tenant at will.

Assumpsit for labor and services in making a road. The first count was on a special contract ; and the second was a quantum meruit. It appeared, on the trial before Weston J. that on the first day of November 1824, the plaintiff contracted to build the road for five hundred and eighty dollars ; one half thereof to be paid when the road was made, and the other half in a year afterwards.

<p>Case for a false return. The plaintiff declared that he became bail for one Holden, who was arrested on a writ; and that a deputy of the defendant, who had the execution for service, falsely returned thereon that he had made diligent search within his precinct for the body and property of the debtor, neither of which he could find, &ic. whereas in truth he had made no such search ; by means of which the plaintiff had been obliged to satisfy the judgment, with additional costs. The return contained the other requisites of the statute regulating bail, which were not controverted.</p> <p>At the trial before Weston J. it was admitted that the plaintiff became bail at the request of Joseph Southwick, who promised to indemnify him; and had subsequently paid him within three or four dollars of the amount of damage he had suffered by becoming bail. The falsity of the return, in the matter alleged, was fully proved.</p> <p>The counsel for the defendant hereupon contended — -first, that if he was liable at all, it was to Southwick, who had paid the m&ney, and not to the plaintiff; — but secondly, that no sufficient cause of action was set forth ; for that the statute regulating bail, having made it the duty of the officer to notify the bail to produce the debtor, fifteen days before the return day, had virtually excused the officer from malting search.</p> <p>Both these points the judge overruled ; and a verdict was taken for the plaintiff,'for his whole claim, subject to the opinion of the court.</p>

In this action the plaintiff declared that whereas he had put for collection into the hands of the defendant, being sheriff of this county, an execution in his own favor against one Benjamin Adams, for twelve hundred and sixty-nine dollars and forty-five cents$ and Adams had placed for collection, in the hands of the defendant, an execution in his favor against the plaintiff as principal, and several others as sureties, for three hundred and ten dollars and ninety-five…

This was a scire facias, to have further execution of a judgment formerly recovered by the plaintiff against the defendant on a penal bond. It appeared, that the bond was signed September 7, 1820, by the defendant and others as sureties, to secure the plaintiff, then sheriff of this county, for the official good conduct of one Dinsmore whom he had appointed his deputy.

This case, in which the question was upon the settlement of a pauper child, came up by exceptions to the opinion of Perham J. who gave judgment for the defendants in the court below. The father of the pauper had his settlement and died in King-field, prior to 1821.

<p>Whore a town order, payable in corn and grain, was presented to the town treasurer, who offered to pay it in those articles, hut said that if the payee would wait till a future day he would pay it in money; which was agreed } — it was held that this was a waiver of the tender; and that the treasurer had sufficient authority thus to hind the town.</p> <p>When specific articles, as corn or the like, being part of a larger quantity, are tendered, it seems they should be separated and set apart from the mass in which they are contained, that the party may see what is offered, and is to be his own.</p>

In an action by the payee against the makers of a promissory note, the defendants, to impeach the consideration of the note, produced .an account settled between them and the plaintiff, for the balance of which the note was given; and then called one Smith, who testified •respecting the hire and wintering of certain oxen charged in the ac.count.

This was a writ of entry on the demandant’s own seisin, to recover possession of two lots of land in township No. 2 of the old Indian purchase, on the west side of the Penobscot river, particularly described by their numbers in the writ. The title of the demandants was by the regular extent of an execution against Ebenezer Webster, upon the premises in question, made July 5, 1827 ; and a deed of release from Webster on the 27th day of August following.

Tris was an action of dower j in which the wife of Stephen Carll, from whom she had been divorced for adultery committed by him, sued for her dower in one acre of land. It appeared that in 1813 one Ephraim Holmes mortgaged a tract of land, including the acre in question, to John Coffin Jones ; and in 1814 conveyed the acre in fee, with general warranty, to Carll.

<p>The grant of four townships of land in 1709 by the Commonwealth of Massachusetts to Henry Knox, containing an exception of the lots occupied by settlers, not exceeding one hundred acres to each, certain lots were afterwards laid out to settlers, fronting on the Penobscot river, and bounded by monuments erected on the bank, being the lots in their actual occupancy prior to the grant. It -was held that the flats fronting these lots were within the fair construction of the exception, and belonged to the settlers as riparian proprietors.</p>

This was an action of the case against the sheriff, for the neglect of one of his deputies in not making service of an execution.

This was assumpsit for goods sold by the plaintiffs to one Charles B. Prescott, upon a letter of credit signed by the defendant, in these terms : — “ Boston, Sept. 13, 1822. Messrs. W. & G. Tuckerman, Gent.

This was assumpsit for the labor and materials expended in building a school house for the defendants. At the trial béfore Parris J. the plaintiff offered copies of the warrant for calling a district meeting, September 8,1821, and of the record of its transactions relative to the building of a school house. The warrant was directed to William Holt, Junior, but the return was made by William Holt. The record stated that William Holt was chosen moderator.

<p>An offer to purchase of the true owner, made by the tenant in possession of land' not his own, does not prejudice his right to th? benefit of the act for the settle^ ment of certain equitable claims arising in real actions ; if such offer has not ripened into a contract between them.</p> <p>It belongs to the court, and not to the jury, to decide whether,' upon any given state of facts, the tenant in a real action has a right to the appraised value of his improvements'.</p>

This was an action of assumpsit for supplies furnished to a pauper whose settlement was alleged to be in Jefferson ; and it was submitted to the court upon the single question whether the plaintiffs, being inhabitants of an organized plantation, and not of an incorpor-porated town, could maintain tho action.

This was assumpsit for the price of certain logs sold; with a count on an order for the same sum, drawn by the defendants, of the following tenor : — “ Orono, June 13, 1827. Thomas Bartlett, Esquire, collector and treasurer of the Peito&scoi-boom-corporation. Please to pay Henry Campbell or the bearer ninety seven dollars and seventy seven cents being for value received.” This was accepted, in these terms : — “ July 9, 1827.

In a scire facias against two trustees, it appeared that Turner•, one of the defendants, had been examined in the court below, was there adjudged trustee upon his disclosure, and appealed to this court, where he made a further disclosure, and was again adjudged the trustee of the original debtor.

<p>The prisoner in this case was indicted for uttering a forged promissory note, purporting to be made by tire house of Jejferds & Smith, and passing the same to Jejferds in payment, with intent him the said Jejferds to defraud, &c. And the fact was fully prored ; and that Smith was absent from the State.'</p> <p>The counsel for the prisoner contended at the trial, that if the jury believed that the intent was to defraud Jejferds and Smith, they ought to acquit him of this indictment.</p> <p>ruled otherwise; and the prisoner, being convicted, moved for a new trial for this cause.</p> <p>cited 2 East’s P. C. 988, 990.</p>

This was assumpsit on an order drawn by the assessors of Blakes-burg,. in these terms : — “ Blakesburg, Sept. 1,1829. To Robert Marshall, rEsq. treasurer of the plantation of Blakesburg, or his successor in said office. — Please to pay Oren Briggs or bearer twenty nine dollars on sight, it being for the support of the poor.

This case, which was assumpsit for money had and received, came before the court upon exceptions taken by the defendant to the opinion of Smith J. before whom it was tried in the court below.

This was an action of assumpsit, brought to recover of the defendant the value of certain hay and corn delivered to one Godfrey, and labor performed for him, at the request of the defendant; and it carne up by exceptions taken by the defendant to the opinion of Parham J. before whom it was tried in the court below. The action was founded on a letter, addressed to the plaintiff, in these terms: — “ Oldtown, Jan. 13, 1829.

<p>It is essential to the validity of the return of an extent, that it should show that the debtor was duly notified to choose an appraiser.</p> <p>If it does not, the officer will not be permitted to amend it, if a third person hats in the mean time acquired a vested right in the land. ’</p> <p>The amendment of an officer’s return of an extent after it has been recorded will not, it seems, relate back to the time of its registry; but will take effect only from the time of the amendment.</p>

This was an action of assumpsit on a promissory note, in ' which the defendant engaged to pay the plaintiff “ one hundred dollars in pump and block work, at the customary prices, in three months, with thirty days’ notice when then the work is called for.” The defendant, who was a pump and block maker, being duly called upon for payment of the note at his shop, offered to the plaintiff a quantity of work which he had previously separated and laid aside for that purpose,…

This was an action of trespass for entering the plaintiff’s mill, and cutting away part of his mill-dam, standing on one of the tributary ■streams of Denny’s river ; which the principal defendant justified as one of the fish-committee of the town of Alexander, the others being his servants.

The facts in this case, which were agreed by the parties, are sufficiently stated in the opinion of the court. The question was argued in writing, in the last vacation, by Green-leaf and Downs for the complainants, and Deane and Chandler for the defendant; and the opinion of the court was delivered in Cumberland, at the adjournment of May term in August of the present year, by

<p>The facts in this case will appear in the opinion of the court which was delivered by</p>

In this case tbe question arose whether the twenty five per cent. to be added to the plaintiff’s costs, by Stat. 1829, ch. 444, sec. 1, in certain cases brought up by the defendant by appeal, applied to cases brought up by appeal from judgments rendered upon demurrer.

This was an action for replevin of a horse; to which the defendant pleaded that the property was in one Salmon Gates and not in the plaintiff.

• In the court below, this action, with all demands, was submitted to referees by a rule of court, two of whom made a report in favor of the defendant, which was contested upon written objections made by the plaintiff, and was rejected. The action was then continued to the next term for trial.

This was an action of covenant broken, on a sealed agreement, dated Nov. 9, 1822, in which the tenant, reciting that he had sold to the plaintiff all the growing timber on a certain lot of land, covenanted that the plaintiff should “ have seven years to get the same off in, without being subject to an action of trespass.” It appeared at the trial before the Chief Justice, that the tenant, on the 4th day of June, 1825, sold and conveyed the land in fee to a third person,…

This was an action of assumpsit, in which, the plaintiff demanded of the defendant thirty one dollars and twenty cents per annum, for two years and two months, as the stipulated compensation for his supporting his parents, as mentioned in a contract of the following tenor: — “ Articles of agreement made and concluded the fifteenth day of March, in the year of our Lord one thousand eight hundred and twenty six, by and betumeen JYathan Kendall, of Searsmont, in the county of…

This was a writ of entry, in which tbe demandant claimed title to the land by virtue of a mortgage deed made to him by his son Aid Tyler.

This was an action of trespass against a deputy sheriff) for taking and carrying away the plaintiff’s horse. At the trial, which was before the Chief Justice, it appeared that the horse formerly belonged to one Daley, from whom Trafton the officer, took him by attachment, by virtue of a writ in favor of one Hall.

<p>A leading interrogatory, in a deposition taken when both parties are present, must be objected to at the time it is put to the witness, if at all.</p> <p>Where the parties to a deed were both present at the time of its execution, and the grantor was bound by his previous contract to make the deed; yet the grantee having taken it up and carried it away without the consent of the grantor, this was held to be no delivery of the deed.</p> <p>Office-copies of deeds of conveyance, to which he who offers them is not a party, are in all cases admissible in proof of title. And where such office-copy was rejected, though the party then produced, proved and read the original, yet the verdict, being against him, was for this cause set aside.</p>

This was an action of assumpsit on a written promise of the defendant, dated Jan. 14, 1825, in these terms : — “.Whereas Tris-tram Hooper of Saco has given 'his several notes of hand to James Read & Co. of Boston, .one dated Nov. 25, 1S24, for ,f689,11, and the other dated Nov. 26, 1824, for 1106,64; and whereas said Tristram has conveyed to me by his deed of this date a lot of land in said Saco, being numbered” &cc. “ Now for the consideration above, and in consideration…

In this action, which was debt on bond, the principal controversy related to the proportion of interest which the plaintiffs acquired in certain farm called the Mclntire farm, by the extent of their executions thereon as the property of Joseph Granger. On the part of the plaintiffs, at the trial before Parris J. it was proved that the farm was conveyed by Daniel Hooper and Daniel Sewall to Joseph Granger, by deed dated Jipril 10, 1824, and recorded Jam. 1, 1825.

This was an action of trespass for taking and carrying away from the bam yard of the plaintiff, thirty cords of manure, in the month of May, 1828. In a case stated by the parties, it was agreed that one Elwell, who was the owner of the farm from which the manure was taken, had mortgaged it to the plaintiff, who had entered for condition broken, in August, 1827.

<p>This was an action of assumpsit for the value of a cable and anchor, furnished by the plaintiffs in New York, for the use of the defendants’ vessel there.</p> <p>At the trial before Parris it was made a question whether the cable and anchor were furnished by the plaintiffs on account of the master and owners, or on the account and credit of one Kellogg, a commission^fcrchan(,, by whom, or through whoso agency in some degree, they were procured ; the defendants contending that in the latter case they were not liable to the plaintiffs, but to Kellogg. To both those points evidence on both sides was adduced. But the plaintiffs contended that if the articles were procured by Kellogg, as a commission merchant, for the use of the vessel, and through him were applied to that use, the defendants, by the custom of New York, wore still liable to them for the value. To this point they adduced several depositions, part of which being objected to by the, defendants, the Judge ruled that they were inadmissible. But af-terwards the objection was withdrawn, the defendants’ counsel observing that the whole might be read to the jury, the judge instructing them what portions to disregard as legally inadmissible.</p> <p>Upon the whole evidence the jury were instructed that the master had power to bind the owners by purchasing the articles for their use and receiving them on board the vessel; and that if they were so purchased, and were charged to the owners at the time, they were liable; but that if they were sold to Kellogg, though he were a commission merchant, the owners were not liable, notwithstanding the articles were furnished for the use of the vessel. The judge gave them no particular instructions respecting the depositions ; but alter closing his observations to the jury, he stated to the counsel on both sides that if they wished it, he would give the jury further instructions on any point of law, or draw their attention more particularly to any part of the testimony; but nothing of ibis kind was requested by either side.</p> <p>The verdict being returned for the plaintiffs, the defendants moved the court to set it aside, because the jury were not instructed respecting the admissibility oí the depositions.</p> <p>supported the motion on the ground that it was the duty of die judge properly to instruct the jury on all points material to a right decision of the cause, independent of what the counsel might either say or omit. .And he insisted that the practice of appealing to the counsel for the expression of their wishes, however it might manifest the earnest desire of the judge to do full justice, could not absolve him from the duty of excluding illegal evidence, without regard to the compact of parties. Sfitith v. Car-rington, 4 Cranch 62 ; 1 Stark. Ev. 430.</p> <p>cited Curtis v. Jackson, Í3 Mass. 513; Spaulding v. The inhabitants of Alfred, 1 Pick. 33; Esting v. The United States, 11 Wheat. 75; Brazier v. Clap, 5 Mass. 10 ; Jones v. Fades, 4 Mass. 245.</p>

<p>This was an action of trespass quare clausum, fregit, brought by certain children of Samuel Wilson; and it came before the court upon the following case stated by parties.</p> <p>The locus in quo belonged to William Symmes, the father of the plaintiffs’ mother, but was always occupied by Samuel Wilson their father, who dwelt there with bis family, of which they were a part; their mother also being alive. On the 20th day of December, 1825, William Symmes died, having made a will, which however was inoperative, it being attested by only two witnesses, and therefore was never proved, wherein he devised the locus in quo to the plaintiffs. On the 20th day oí February 1826, the heirs of William Symmes undertook to settle his estate without any administration, and according to his intention as expressed in the will; and in pursuance of this arrangement the locus in quo was conveyed by Samuel Wilson and his wife, by a deed releasing all their right therein to two of her brothers, who were named as executors in the will; and who, at the same time, conveyed it by deed to the plaintiffs, for the consideration, in part, of love and affection therein expressed. As a part of the same arrangement, the sum of seven hundred and thirteen dollars was allowed to Samuel Wilson, father of tile plaintiffs, by extinguishing a debt of that amount which he owed to the deceased.</p> <p>The defence of dyer, the principal defendant, the others being his servants, was founded upon the extent of an execution in his favor against Samuel Wilson, the father, by which the locus in quo was regularly set off by metes and bounds March 10, 1829, in satisfaction of a debt which was created in January 1824, for the original sum of about ninety dollars.</p> <p>contended that the whole transac-» tion showed a conveyance of the life estate which was vested by law in Samuel Wilson, for other than valuable considerations; and that therefore it was void against prior creditors, who might lawfully take it in satisfaction of their debts. Bennett v. Bedford Bank 11 Mass. 421. The extent thus made, he argued was good for the life estate; Roberts ». Whiting, 16 Mass. 186; and was valid against these plaintiffs, notwithstanding it was made by metes and bounds, upon a portion in severalty, instead of a share in common. Bartlett v. Harlow, 12 Mass. 348; Warnum v. Abbot, ib. 474.</p>

<p>In' this case, which came before the court upon a statement of facts reported by Parris J. the demandant claimed title to the whole of certain lands under the will of his grandfather Ebenezer Sayward; or as his heir at law of one thirty fifth part.</p> <p>By .the will, which was made March 30, 1782, the testator made divers specific devises and bequests, among which were the following : — “ I give and bequeath to my fifth son Samuel Sayward all my lands, buildings and other real estate not heretofore disposed of, to have the possession thereof when he conies to be twenty one years of age.”</p> <p>“ Item. I give to my son Ebenezer the income or profit of my estate which I have bequeathed to my son Samuel, till Samuel is twenty one years of age.” “Furthermore, my will is that if my son Samuel should die before he is twenty one years of age, without lawful issue, or after that term, and doth not dispose of the aforementioned buildings -and lands, then they shall be my son Eben-ezer''sP</p> <p>Afterwards, on the 16th day of January, 1783, he made a codicil, commencing thus — “ I Ebenezer Sayward, on perusing my will, think proper to make the following amendments” — and declaring that sixteen acres of wood land devised to his son Ebenezer were meant to him, his heirs and assigns; and after some changes in the bequests of personal estate to his daughter Mary, proceeding as follows : — “ Item. To give a clear and intelligent meaning to the da-vise of the residue of my real estate, I hereby revoke the devise of the same in my said will 5 and do give and devise the same to my son Samuel Sayward his heirs and assigns forever, provided and on condition he lives to the age of twenty one years and has issue of his body lawfully begotten ; but in case my son Samuel shall die under the age of twenty one years and without issue as aforesaid, living his brother Ebenezer, then my will is that the same shall vest in my son Ebenezer, his heirs and assigns forever. And as my son Ebenezer is under age, my will is that my executors improve or lease out the same, in the manner they shall determine most for the interest of the estate, until said Ebenezer shall arrive at the age of twenty one years j and then my will is that said Ebenezer have and hold the same until his brother Samuel shall arrive to the age of twenty one years.” The testator died soon after, leaving six children; of whom Ebenezer, the father of the demandant, was one, and Samuel was another.</p> <p>entered into possession of the premises, which he occupied till Samuel became twenty one years of age, which was in January, 1794; when Samuel took possession of the farm, and held it till September 29, 1829, when he died, never having had issue. In April, 1820, Samuel Sayward made his last will, which was duly proved after his decease, devising a life estate in part of the premises to his wife, and the reversion, with the residue of the premises, to Rufus Sayward the tenant, in fee. And on the 28th day of September, 1829, he conveyed all his real estate in fee to the tenant, by deed of that date; which was not recorded till after his decease; taking back a lease of the same to himself for life, and of one half to his wife for her life.</p> <p>After the decease of Samuel, the demandant made entry into the premises, claiming title to the same; bis father Ebenezer having deceased in the year 1816.</p> <p>Upon these facts the right of the demandant to recover was submitted to the court.</p> <p>that Samuel took only an estate for life, under the will; to be enlarged into a fee upon his arriving at full age and having issue. The remainder in fee vested in Ebenezer, in interest, and was descendible to his heirs; defeasible only on Samuel’s having issue. Purefoy v. Rogers, 2 Saund. 388, note 9/4 Pane’s Abr. 790, 278, 525,. 800 / 2 Cruise’s Pig. 28, 261, 265, 266, 272, 281, 395, 443; Wittes, 327; 1 Salk. 224; Hanson v. Graham, 6 Wes. 239/ Ives v. Pegg, 3 P. & E. 488/ Fearne on remainders, 142, 327, 389, 391, 497, 521 / Brownswood v. Edward, 2 Wes. sen. 243/ 1 Bos. & Pul. 250, 262/ 10 Mod. 419/ Marks v. Marks, 1 Stra. 429 ; 2 Mass. 67; 2 Wils. 29, 35 / 6 Cruise’s Pig. 523, 524 / 1 Roll. Abr. 835,■ 836 / Poe v. Wilson, 2 Bos. & Pul. 324.</p> <p>The words “ heirs” of Ebenezer may be taken as words of purchase, to c.arry the intent of the testator into effect; and he dying before the contingency happened to vest the whole estate in him, it descended to his heirs. Wittes, 592; Poug. 264/ 2 Burr, 1100; 1 East, 264.</p> <p>Samuel did not acquire a conditional or base fee; the condition precedent, viz. having issue, never having been performed. In this respect the case differs from Barker v. Surtees, 1 Stra. 1175, where no previous condition was annexed. Neither did he take a fee tail. For here were no appropriate words to create an entailment; which the policy of our law, since the statute of 1791 for barring entails, will not allow to be created by unnecessary construction. And whatever estate he was to have had was to commence in futuro,, without an intermediate estate sufficient to supporr, an entailment. Pells v. Brown Cro. Jac. 590 / Porter v. Bradley, 3 P. & E. 146 / Roe v. Jeffrey, 7 P. & E. 596.</p> <p>But if it was an estate tail in Samuel, it has not been barred'.. For the Stat. 1791, eh. 61, by which a tenant in tail may aliene in fee, was made since the decease of the testator, and so could not operate on this estate. And if it could, yet the deed from Samuel to the tenant was not registered in the life time of the grantor; which,, by that statute, is an indispensable requisite. Therefore, on the decease of Samuel, it vested in Ebenezer in tail.</p> <p>citing the following authorities. 1st. That Samuel took a fee simple, with limitation over to Ebenezer by way of executory devise. 4 Kent’s .Com.. 265, 268 ; Pells v. Brown, Cro. Jac. 590 ; Doe v. Webber, 1 Barnw. & Aid. 718 / Morgan v. Morgan, 5 Day 517 ; Anderson v. Jackson, 16 Johns. 382/ Jackson v. Chew, 12 Wheat. 153/ Richardson v. Noyes, 2 Mass. 56 ; Ray v. Easlin, ib. 554 / Lip-pet v. Hopkins, 1 Gall. 454 / Dean v. Keneys, 9 East, 366 ; Barrister v. Casey, 7 Cranch, 469 / Holmes v. Holmes, 5 Binn. 252. 2d. That this estate became absolute when be arrived at the age of twenty one years. 4 Kent’s Com. 7 ; Tde v. Ide, 5 Mass. 504 / Framingham v. Hogan, 1 Wils. 140 / Barker is. Surtees, 2 Stra. 1175; 1 Wils. 333/ Hogan v. Jackson, 3 Bro. P. C. 388/ 6 Cruise’s Dig. 197, 200/ Rowe v. Hervey, 5 Burr. 2638; Doug. 763/ Brown v. Wood, 17 Mass. 68/ Soulle v. Gerrard, Dyer, 33/ Doe v. Jessup, 12 East, 288/ Fairfield v. Morgan, 2 New Rep. 38 ; Jackson v. Blenshaw, 6 Johns. 54 / Arnold v. Buffum, 2 Mason, 208. 3d. That if not, then he took an estate tail, which was barred by his deed to the tenant. 6 Cruise’s Dig. 268/ 4 Dane’s Abr. 624 / Clark’s case, Dy. 330; Doe v. Fyldes, Cowp. 833 / Brown v. Jarvis, Cro. Jac. 290 / Dutton v. Engrarn, Cro. Jac. 427 / Chaddock v. Cowley, ib. 695; Doug. 321 / Brice ¶. Smith, Willps, 1 / Noe v. Avis, 4 D. & E. 605 / Williams v. Hichborn, 4 Mass. 189 / Hawley v. Northampton, 8 Mass. 2 ; Soule v. Soule, 5 Mass. 67 ; TÁthgow v. Kavanagh, 9 Mass. 170 ; Wheelwright v. Wheelwright, 2 Mass. 450.</p>

This was a writ of entry on the demandant’s own seisin, brought to recover possession of a small parcel of land in Sanford.

This was a writ of entry brought by Elliot Frost, upon his own seisin. At the trial before Parris J. the original title of the de-mandant, and ouster by the tenant were admitted.

This was a writ of entry, in which both parties claimed title under the extent of their several executions against William Linscott, made on the same day, and diily registered and returned.

<p>Real estate devised, is not liable to contribute to the payment of legacies, on a deficiency of personal assets, unless specially charged.</p> <p>In an action against the surety in an executor’s bond, lie is not precluded, by a previous judgment against the executor in a suit by a legatee, from showing a deficiency of assets.</p>

This was an action of trespass, against the sheriff, for taking and carrying away the plaintiffs’ schooner Factor, on the 6th day of May 1830; which the defendant justified under divers writs of attachment in actions of assumpsit, against the Saco Manufacturing Company, served by Mbra Wadhigh, one of his deputies.

This was an action of assumpsit on a promissory note made by the defendant July 9, 1828, for 1500 dollars, payable to Isaac C. Pray, treasurer of the Saco Manufacturing Company, or his order, in eighteen months and grace ; and by him indorsed in blank, both in his private capacity, and again with the addition of his office. The consideration .of the note was a written promise in these words: — “ Saco, July 9, 1828.

<p>Tins was an action of assum/psit against Thomas Cutts and Richard C. Thornton, as owners of the schooner Sally, of which Thomas Farris was master, for supplies denominated “ great and little generals,” furnished June 2, 1829, to the master.</p> <p>It appeared that the schooner was originally owned, one quarter by Cutts; and the other three quarters by Emery & Chase ; who, in April, 1829, contracted to sell their interest to one Farris, who was master of the vessel; taking bis notes, with Thornton as surety, for the price. The conveyance was made directly to Thornton; who gave a written memorandum to Farris, purporting that Thornton was to retain the three fourths of the vessel, her earnings and bounty-money, till the notes were paid, and he should have received whatever he might have advanced by way of outfits, he.; — that Farris should employ the vessel in the fishery; — that Thornton should receive and hold her earnings, fish and bounty for the above purpose; — and that Farris should be chargeable with all expenses, and credited with the earnings, &c., in the same manner as if ho was the true owner. Thornton and Cutis accordingly took out the proper papers of the vessel on the 27th of April, 1829, in which they were stated to be the owners, and Farris the master.</p> <p>It appeared from the testimony of Farris that in the spring of 1829, Cutts agreed to let him take the vessel on shares, for the purpose of employing her in the fishery during the fishing season. Cutts was to have nothing to do with the purchase of supplies ; was to have one fourth part of the bounty allowed by law to fishing ves-seis; and one fourth part of the vessel’s share of the fish and oil. Farris was to victual and man her. In the course of the season Farris purchased part of his supplies at the store of Cutts, and paid for them, in the ordinary course of trade; and on one occasion transported goods in the schooner from Saco to Boston, for Cutts, who paid him freight for the same. During all this period neither Cutts nor Thornton gave directions concerning the vessel, nor received any part of her earnings; nor employed her; nor paid the men.</p> <p>he gave them no information of his contract with Cutts, nor of the conveyance to Thornton, nor concerning the ownership of the vessel. And in JVov. 1829, he sold three fourths of the vessel to a person in Portland, and received the price, no part of which came to the hands of Thornton.</p> <p>It further appeared that Cutts had in frequent conversations spoken of a debt due in Boston against them as owners of the vessel, of about three or four hundred dollars, alluding to the demand of the plaintiffs, which he said they would probably have to pay ; and complained that they had heavy expenses to pay, and nothing coming jn. Farris also had at some time declared to Mr. Scamman, the collector, that he had little or no interest in the bounty; which Thornton, at the close of the season, demanded of the collector, but did not obtain.</p> <p>Upon these facts, proved before Parris J. and from which it was agreed that the court might infer all which a jury might, the case was submitted to the decision of the court; a nonsuit being entered by consent.</p> <p>relied on the general doctrine that the owners are liable for- supplies furnished to the master for the purposes of the voyage ; and argued that the present case was not within any exception to the rule; because the master was appointed by the owners themselves, and subject to their supervision and control in the employment of the vessel. Rich v. Coe, Cowp. 639; Fletcher v. Braddock, 2 New Rep. 182; Milward v. Hallet, 2 Caines 77; Mclntire v. Brown, 1 Johns. 229; Chcriot v. Bar-her, 2 Johns. 346; Reynolds v. Toppan, 15 Mass. 370; Taggard v. Loring, 16 Mass. 336; Wait v. Gibbs, 4 Pick-. 298; Perry v. Osborne, 5 Pick. 422. The case of Thompson v. Snow, 4 Greenl. 264, was decided in favor of the owners, on the same principle, the master in that case having the entire control of the vessel. But the owner’s liability continues so long as he has any right to interfere in her management. Emery v. Chase, 4 Greenl. 407.</p> <p>cited JIussey v. Allen, 6 Mass. 163; Dame v. Hadlock, 4 Pick. 458 ; Leonard v. Huntington, 15 Johns. 298; Bixby ». Franklin Ins. Co. 8 Pick. 86; Frazer v. Marsh, 13 East 238; James v. Jones, 3 Esp. 27; Sharp v. United Ins. Co. 14 Johns. 201; Ilallet v. Columbian Ins. Co. 8 Johns. 272 ; Reynolds v. Toppan, 15 .Mass. 370; Taggard v. Loring, 16 Mass. 336; Perry v. Osborne, 5 Pick. 422; Cutler & al. v. Winsor, 6 Pick. 335 ; Thompson v. Snow, 4 Greenl. 264 ; Mclntire v. Scott, 8 Johns. 159; Jackson v. Vernon, 1 H. Bl. 114; Chinnery v. Blackburn, ib. 117, note a; Eaton v. Jaques, Doug. 455; Portland bank v. Stubbs, 6 Mass. 425 ; Hatch v. Dwight, 17 Mass. 299 ; Champlin v. Butler, 18 Johns. 169; 4 Maulé & Selw. 240 ;• Goodwin v. Richardson, 11 Mass. 474.</p>

<p>Error to reverse the judgment of a justice of the peace, given in an action of debt brought by Garey, as clerk of a company of militia, against Tripp, a private in the same company, to recover a fine for his neglect to appear at a militia training.</p> <p>From the record sent up it appeared that the only evidence of Garei/s appointment as clerk was a warrant issued by “ Timothy Shaw, colonel electwho was at that time commanding officer of the regiment, but had not then been commissioned and sworn as colonel. This warrant was addressed to Garey as “ having been appointed by Capt. Jeremiah Moulton, jr. to be a sergeant and clerk” in the company under his command ; and charged him with “ the ‘ duties of sergeant and clerk” accordingly. On the back of the warrant and of the same date, was a certificate of the captain, that Ga-rey, “ appointed clerk as within,” had been duly sworn before him.</p> <p>It further appeared that the notice to Tripp to attend the company training, was proved by the testimony of Joseph Young, a private in the same company ; who was admitted by the justice, though objected to as incompetent by reason of his interest, as a member of the company, in the penalty sued for.</p> <p>The errors assigned were — 1st, that Garey was not legally appointed sergeant; — 2d, that he was not legally appointed and qualified as clerk; — 3d, that Young was improperly admitted as a witness ; — and 4th, the general error.</p> <p>cited Abbot v, Crawford, 6 Greenl. 214; Commonwealth v. Hall, 3 Pick. 262; Commonwealth v. Sherman, 5 Pick. 239 ; 1 Gilb. Ev. 106 — 7 ; Marquand v. Webb, 16 Johns. 89; 1 Phil. Ev. 52; Craig v. Cundell, 1 Campb. 381 ; Phenix v. Ingraham, 5 Johns. 258 ; Innis ¶. Mil-lar, 2 Dal. 50 ; White v. Derby, 1 Mass. 239 ; Boynton v. Turner, 13 Mass. 391 ; Austin v. Bradley, 2 Day, 406; Temple v. .Elletl, 2 Munf. 252,</p> <p>argued that in bis appointment all that was substantial in the statute had been complied with ; and that to set aside these summary transactions for mere objections of form, would tend to subvert the militia system, and impair if not destroy its usefulness. He also contended that Young was a competent witness, his interest in the penalty being wholly contingent and remote; depending on the will of the commissioned officers.</p>

This was an action of assumpsit for the support of Mary Billings, and her two sons, of the ages of about twenty and seventeen years respectively. The parties agreed that she was born in Kittery, and removed with her father to Saco, where she was married to Samuel Billings, Aug. 10, 1788.

This was an action of trespass on the caso, in which the plaintiff declared as follows“ for that a certain river called Saco river, had for a long timo before the opening and removing of the banks thereof, herein after mentioned, to wit, from the time whereof the memory of man is not to the contrary, to the time last aforesaid, flowed in a certain channel or course, from the lino of the State of New Hampshire, through the said town of Fryeburg to the sea; and the inhabitants…

<p>Assumpsit to recover $47,GO which Charles Coffm the defendant, in the course of his practice as attorney and counsellor at law,., had collected for a demand left with him by Paul Coffin, the plaintiff, against one Bean. The demand was left with the defendant prior to the year 1807; and the money was received July 20,1815,. In 1806, David Coffin was appointed guardian to the plaintiff; in which office he continued till the year 1829; and on the 19th day of December 1818, he had a settlement of accounts with the defendant, and thereupon gave him a receipt in full of all accounts and demands to that date; and in full for all-demands left in his office for collection. In this receipt the plaintiff was not mentioned. It was agreed, in a case stated by the parties, that David Coffin, if he were a competent witness to the fact, would testify that this receipt was not intended to include and did not settle the demand in question. And it was further agreed that during the period of the guar ■ dianship the plaintiff resided in New Hampshire, the guardian, during the same time, residing within half a mile of the defendant’s house. The money being demanded of the defendant, March 9 th 1830, he replied that he had paid it over to the guardian, and should not pay it again.</p> <p>The defendant pleaded the general issue, and the statute of limitations; to which the plaintiff replied a new promise, on which issue was joined; and the cause was submitted, upon the facts and pleadings, to the decision of the court.</p> <p>contended that the statute of limitations did not begin to run till the plaintiff had a right to maintain an action; Walker v. Bradley, 3 Pick. 261; Wilcox v. Plum •mer, 4 Peters 172; and that here no action could be maintained against the defendant, he being an attorney at law, till the money was demanded, which was not till March 1880. Staples v, Sta pics $ tr,. 4 Greenl. 532. And to the competency of David Coffin as a witness, they cited Bliss v. Thompson, 4 Mass. 488 ; Page Weeks, 13 Mass, ¡99 ; Barstow v. Gray, 3 Greenl. 409 5 Ely •a. Forward, 1 Mass. 25 ¡ Phillips r- Bridge, 11 Mass, 242 ; Gif-ford v, Coffin, 5 Pick. 447-</p> <p>objected to the right of the plaintiff to maintain this action j there being no special request, but only the usual scape, requisitas, alleged in the declaration ; 1 Chittifs PL 322,325 ; l Saund. 33, note 2 ; Wallis a. Scott, 1 Stm. 88, and such request being necessary, on the authority of Staples v. Staples S/-tr. 4 Greenl, 532. Hut he contended that tlio facts in that caso did not call for (he decision of that point, which was extrajudicial, and not supported by the analogies of the law. The right of action boro accrued as early as the year 1818, when the money •vas received and ought to have been paid over.</p> <p>He also contended that David Coffin was not a competent witness, as his testimony would go directly to exonerate himself by charging the defendant. Emerton v, Andrews, 4 Mass. 653,” Widgery v, llashdl, 5 Mass, 144.</p>

<p>In an action on a Probate bond, it is sufficient if the writ be indorsed with the names of the persons for whoso benefit it is brought, without mentioning the characters in which they claim.</p> <p>in order to compel an administrator, on his official bond, to pay tire amount of a debt due from him to the intestate, it is necessary that he should first be charged with the amount, in an administration account, by a decree of the Judge of Probate.</p> <p>In an action on an administrator’s bond, to compel him to account for and pay over the amount of a private debt due from him to the intestate, the lapse of more than twenty years since the date of the bond affords no ground for the presumption of payment to the heirs; because such payment, without a previous decree of distribution, would be a violation of his duty, which the law will not presume. Neither does the presumption ariso that the debt was forgiven by the intestate ; for gifts, as well as wrongs, are not to be presumed.</p> <p>The presumption of payment, arising from lapse oí twenty years, does not seem applicable excopt in cases of bonds or other contracts for the payment of money, &c. or the performance of a specific duty, at a fixed lime, from which the term of twenty years might commence. [n an action on an adminintrator’s bond, brought for the benefit of the heirs at law here, it was held to he no good objection, in arrest of judgment, that tho into;; (ate was a foreigner, having a foreign domicil at the time of his death, and that the administrator here was therefore accountable to the administrator abroad for the assets, if any, in his hands.</p> <p>An official bond, being given for official good conduct, is not discharged by a faith - fill accounting for monies to the amount of the penalty ; but stands good as a security for losses and defalcations to that amount.</p> <p>Jn debt on an administrator’s bond, the defendant pleaded m bar that he had paid to the heirs and creditors of tho intestate divers sums which had been allowed by the Judge of Probate, amounting to more than the penalty of tho bond. The plaintiff replied that the defendant was indebted to the intestate in certain promissory notes, of which ho had never rendered any account; but without any averment that lie had been cited for that purpose. And on demurrer it was held that the replication was bad, for the omission of such averment; that the plea would have been bad if demurred to ; that the defect of the plea was cured by the fault of tho replication; and that a citation to account being an essential pre-requisite to tho right to maintain the action, and it judicially appearing that tho defendant had never been cited, though several issues of fact had been found against him ho was entitled to judgment non obstante, veredicto.</p> <p>IjOh vo to replead may be granted after argument upon demurrer.</p>

<p>In a writ of entry, the question being upon the fact of ouster by the defendant, and it appearing that he held a deed of the land, as security for a debt, given to him by a third person, who continued in possession, but under no certain agreement as to time or amount of rent; the defendant intending to take the land into his possession whenever he should think proper; — this was held to be no sufficient evidence of an ouster.</p>

This was an action of debt on a judgment recovered in the State of New York ; and it came before the court upon a case stated by the parties, to this effect - Execution on the original judgment having been returned nulla bona, the defendant obtained; under the insolvent law of New York, passed in 1819, a regular discharge of his person from future imprisonment; both the parties being at that time, and at the time of making the original contract, citizens of that State.

The question in this case was upon the liability of the Cumber~ land Sf Oxford canal corporation, as trustee of the defendants.

This was an action of the case against the late sheriff of this county, for the neglect of one of his deputies, in not levying and collecting an execution in favor of the plaintiff against one Small, where the deputy had attached goods on the original writ.

<p>Where S. sold a vessel to A., who promised, in consideration thereof, to pay B. a debt due from S. to him; upon which promise B. brought his action against J) ; it was held sufficient for the plaintiff to set forth so much of the promise as enured to his own benefit; and that proof of other and further particulars of the contract did not affect the action.</p> <p>It was also held that such promise was good, though not in writing ; for it was a promise to pay Jl.’s own debt, though it enures to the benefit of B.</p> <p>It was also held that S. was a competent witness for the plaintiff, his interest being equally balanced.</p> <p>Where judgment was rendered in the court below on a verdict for the plaintiff, from which the defendant appealed, and in this court a verdict was again returned for the plaintiff, but for a lesser sum than before; and the judgment here was delayed by the defendant’s motion for a new trial, till the interest on . the verdict increased the amount of the judgment to a larger sum than it was rendered for in the court below; — yet it was held that the defendant was entitled to Iris costs since the appeal, under Stat. 1826, ch. 347, sec. 4, he having obtained a reduction of the damages by his appeal.</p> <p>Where a trustee was summoned to appear out, of his county, and made his disclosure before a magistrate of his own county, charging himself as trustee of the goods of the principal, which disclosure was transmitted to the court, without his personal attendance; — it was held that the only costs he was entitled to retain, out of the effects in his hands, under Stat. 1828, ch. 382, were his, constructive travel of forty miles, three days’ attendance, an attorney’s fee, and the fee paid to the magistrate before whom the disclosure was made.</p>

Tins question in this caso was upon the settlement of one Bright, a pauper. It was admitted that his settlement was once in Bow-doinham ; but the defendants contended that he had subsequently acquired one in Westbrook, by residence, being taxed, and'paying ■ taxes there, for five successive years.

This was a writ of entry on a mortgage, made by the tenant to one Gooding, and assigned to the demandant; and was tried before the Chief Justice. It appeared that the tenant purchased part of the demanded premises of John Cushing, by deed dated Dec. 28, 1808 ; conveying a piece of land “ in that part called Cushing’s point, with the northerly half of the house” in which he then dwelt. This parcel is marked A in the diagram below.

This was an action of trespass for demolishing and destroying five dwelling houses, the property of the plaintiff; to which the defendants pleaded the general issue, and the statute of limitations. To the latter plea the plaintiff replied that the action was commenced and sued within six years after the trespass was done; on which .issue was joined. The trespass was alleged to have been done Aug. 20, 1824.

<p>This was a bill in equity to redeem certain mortgaged premises, the plaintiff having acquired the title of the mortgagor under a sheriff’s sale of the right in equity of redemption. It appeared, at the hearing, that though the main body of the land was in Minot, yet that a small portion fell within the limits of Poland, by the establishment of the line between those towns subsequent to the original laying out of the lots ; and that the officer, in advertizing the right in equity, which he had seized in execution, had posted up two notifications in Minot, but only one in Poland.</p> <p>objected that the sale was void, for want of a compliance with the statute, which requires the posting of two notifications in the town where the land lies.</p>

This was a bill in equity to redeem certain lands mortgaged, brought by a second mortgagee, against one claiming under a prior mortgage. The principal facts were these :— On the 23d day of March, 1818, one Jacob Merrill, being owner of the premises in fee, mortgaged them to Moses Woodman ; and afterwards, on the 5th day of October, 1820, made a second mortgage of the same to Thompson the plaintiff.

This cause, which was assumpsit, came up by exceptions taken in the court below. The defendant pleaded the general issue, and the statute of limitations.

This was an action of trover, to recover the value of twenty five pine mill logs, with certain marks thereon, particularly described in the writ; and it came up by exceptions taken to the opinion and decisions of Whitman C. J. in the court below.

<p>C and D entered into a written contract, by which C agreed to pay to D $3500 within six months, for one fourth part of a certain ship ; and D agreed that “ when C should pay the full amount of the consideration aforesaid,” he should receive a bill of sale of that part of the ship. C paid part of the money; the six months elapsed ; and then D was summoned as the trustee of C. In his disclosure he disclaimed any intention of availing himself of the lapse of the six months to avoid the contract on his part; and stated that he had received C’s part of the ship’s earnings on account of the balance due on the purchase-money ; but insisted that he had never waived his right to payment of the whole in six months ; that he was under no legal obligation to convey the fourth part to C; and that as between C and his creditors he should insist on his legal rights:—</p> <p>Tet it was held that the facts disclosed by X> amounted to a waiver of his right to punctual payment at the time stipulated; and that he was chargeable, as the trustee of C for the value of one fourth part of the ship.</p>

This was an action of assumpsit for money had and received j and came up by exceptions taken by the plaintiff to the opinion of Whitman C. J. before whom it was tried in the court below. It appeared that one Nancy Kneeland, residing in Sweden, in the county of Oxford, had charged Dennett, before a magistrate of that county, with being tbe fatber of a bastard child, of which she had been delivered.

This was an action of trespass quare clausum fregit, for cutting trees on lot JVo. 45, in the second division in Lovel, drawn to the original right of Robert Moor ; and it was tried before Parris J. upon the general issue. / The plaintiff showed that the township was originally granted to Noah Johnson and others, Feb. 5,1774, upon the usual conditions that the grantees should, within six years, settle thirty families thereon, build a meeting house, settle a protestant…

This was an action of the case against the defendant for refusing the vote of the plaintiff at a meeting of the first parish in Fryeburg, March 16, 1829, of which the defendant was moderator. The principal question was whether the plaintiff was a member of the parish, entitled to vote.

<p>Where the meaning of the parlies to a written contract cannot be collected from the instrument itself, by reason of its ambiguity or illegibility; it seems that parol evidence of the acts of the parties, contemporaneously with and immediately. after the execution of the instrument, is proper for the consideration of the 3«></p> <p>The subsequent declarations of a general agent, touching a contract he has entered into in the name of his principal, being made to a stranger, cannot be received to affect the rights of the principal, already acquired.</p> <p>The death of one of several joint plaintifFs, in an action of trespass quare clausum fregit, does not abate the suit.</p>

This was an action of the case to recover damages against the defendant as moderator of a meeting of the first parish in Turner, holden April 28, 1825, for refusing the plaintiff’s vote; and it was tried before Parris J. upon the general issue.

This was a writ of entry upon the plaintiff’s own seisin of two lots of'land, and a disseisin by the tenants; and was tried before Parris J. upon the general issue, with a reservation of liberty to give usury in evidence, in the same manner as if specially pleaded,, The demandant claimed title under a deed from Danford Jewell, and Betsey Jewell, the tenants, dated Oct. 11, 1828, conveying the premises to him absolutely in fee, with general warranty, for the consideration of…

This was an action of entry upon disseisin, for two lots of wild land; and was tried before Parris J. upon the general issue.

This was an action on the case, for the recovery of damages sustained by the plaintiff, by reason of an obstruction placed in one of tlje principal highways in Bowdoinham. It was proved tliat in the afternoon of May 1, 1828, about an hour and a half or two hours before sunset, one of the inhabitants of jBowdoinham loft a large stick of hewn timber on the causeway near the village, where the injury was sustained.

This was an action of assumpsit, brought by George Erslcine, for the proceeds of certain timber sold by the defendant. The material facts, developed on the trial, which was had before the chief justice, were the following:— being the owner of a lot of land in Aina, on which the timber in question grew, mortgaged the same, Dec. 11, 1819, to W. 8f G. Tuckerman, to secure the payment of ,f444,03, with interest.

This was an action of assumpsit on an award % in which a ver-diet was taken for the plaintiffs, subject to the opinion of the court upon the question whether they might lawfully join in this action. The facts were these.

Tins was a writ of tight, brought by the children and heirs at jaw of Matthcis Pau'L The tenant claimed title under one Wil - liam Bearce, who entered into tho premises under a deed from the ancestors of the demandants, dated April 13, 1793; of the following tenor Know all men by these presents, that Í Matthew Paul and my wife Anne of Bristol. in the county of Lincoln, and Commonweaii.il of Massachusetts, yeoman, for and in consideration of eighty pounds, lawful money, to me…

<p>This was au action of assumpsit, for the value of services rendered to the defendant, by Abraham Collamore the plaintiff’s apprentice.</p> <p>In a case agreed by the parties, it was admitted that the boy was properly bound by indenture to the plaintiff, by the overseers of the poor of the town of Washington, May 22, 1820, “ to any work he might see fit to place him —that in June 1828, ho left his master without leave, was advertised by him as an absconding apprentice, in the newspaper printed in Thomaston, and had never returned to his service ; that about fourteen months ago he came with his father to the defendant, in Wiscasset, and with his own consent was hired to the defendant, by his father, and performed the services sued for in this action ; and that he was still a minor. It did not appear that the defendant ever knew that the boy was an apprentice to the plaintiff ; or had been advertised ; nor had the plaintiff demanded payment for his services before the commencement of this action. The indenture contained the usual covenants for the instruction and benefit of the apprentice.</p> <p>Upon these facts the case was submitted to the decision of the court.</p> <p>relied on James v. LeRoy, 6 Johns. 274..</p> <p>resisted the plaintiff’s claim, arguing that as no action would lie for enticing away another man’s servant or apprentice without knowledge that he was such; 1 BL Comm. 429; 1 Com. Contr. 124; Eades v. Vandeput, 5 East, 39; Co. Lit. 117, a. note; by parity of reason none would lie for his services, where the party had no cause to suspect that he was employing the apprentice of another. In such case a previous demand, at least, was necessary, to establish a privity of contract between the parties.</p> <p>The case of James v. Le Roy, he contended, was not in point, because the facts were not similar to those of the case at bar.</p> <p>But if that case is deemed conclusive upon the point of notice: yet here the plaintiff’s long neglect to seek and recover his apprentice, and that of the overseers in not inquiring into the treatment he was receiving, which they were bound to do as long as he remained an indented apprentice, must be regarded as an assent to his departure, and an abandonment of the contract of service; leaving the father’s rights as they stood before. Day v. Everett, 7 Mass, 145.</p> <p>But the indenture itself is void, not pursuing the statute, which seems to intend that the child should be bound out to learn some useful art, trade or mystery, by which he might earn his livelihood; instead of being a servant of all work, as in the present case. Butler v. Hubbard, 5 Rich. 250.</p>

This was an action of assumpsit on a promissory note ; and came before the court on a motion to take off a default, in a case reported by tbe chief justice, before whom it was opened for trial.

In this case, which was a writ of entry against Joseph Plummer, and came before the court upon a case stated by the parties, the facts appear in the opinion of the court, which was delivered by

This was an appeal from a decree of tho Judge of Probate. The complainant represented that she was the only child and heir at law of John O’Dee, who died in the year 1799, leaving a large estate both real and personal; and that she had reason to believe and did believe that the personal estate came into the hands of the respondent, and that he had embezzled and concealed, or had conveyed away the same.

<p>Tke proviso in the private act of March 15, 1805, incorporating tile Proprietors oí' the side-booms in Androscoggin river, with the right of toll, and in the additional act of Feb. 29, 1812, “ that the fees aforesaid shall, at all times hereafter,'he subject to the revision and alteration of the legislature,” is not satisfied by a single act of revision of the .tolls therein established ; but is a subsisting and' perpetual reservation of the right to increase or reduce the fees from time to time, at the pleasure of the legislature.</p> <p>Therefore, where, by a subsequent statute, the fees were increased above the ratr first established, but without any new reservation of the power of revision, it was held that the legislature still had the power of reducing them at its pleasure.</p> <p>The provision in the private act of March 21,1829, that the same corporation shall not be entitled to receive toll till the logs in their booms are surveyed by a surveyor appointed by the selectmen of Brunswieh or Topsham, is constitutional; and it is the duty of the corporation, and not of the owner of the logs, to cause such survey to be made.</p>