Volume 8 — Maine Reports

This case, which was assumpsit for money had and received, £see 7 Greenl. 44.] came again before the court; and was tried before Weston J. upon the general issue, and a plea of the statute oflimitations. The plaintiff, on the 31st day of March, 1819, had given to the defendant a recognizance of debt before a magistrate; and it now appeared that by the fraud of the latter it was taken in too large a sum. To recover back this excess, was the object of the present action.

<p>The liability of the surety, in a bond conditioned for the official good conduct of a-deputy sheriff during his continuance in office, extends as well to defaults committed after, as before, the death of the surety.</p>

Tins case was assumpsit on a note or due-bill made by the defendant dated February 2, 1827, for the payment of twenty-nine dollars iti wool skins and fur, to the plaintiff; and it came up by exceptions taken in the court below to the opinion of Perham J. It was referred, in the court below, to Mr. Boutette, who made a special report of facts; stating that the due-bill had been regularly assigned by the plaintiff’ to John Otis, Esq. who addressed to the defendant a letter…

Tiros caso, which was assumpsit on an account annexed to tho writ, was referred in the court below, by a rule of court.

This was an action of assumpsit on a promissory note made by the defendant’s intestate. The defendant pleaded in bar, first, that an inventory of the estate was duly returned January 13, 1824; that in December following the estate was represented insolvent, and commissioners appointed, who returned a list of claims by them allowed, including the plaintiffs’ demand, on the fourteenth day of June, 1825.

This was an action of trover, against the late sheriff of the county of Washington, for a yoke of oxen which had been taken by Ebenezer Reding, of Calais, bis deputy, and sold, under an execution in his bands against one James Flanders, in favor of Hamilton and Edgely. At the trial before Weston J. it appeared that the oxen once belonged to the plaintiff; and the principal question was whether he had sold them to Flanders.

This was an action of the case against the late sheriff of this county, for the neglect of one Goodrich his deputy, in not attaching certain property which he was directed to attach on a writ in favor of the plaintiff.

<p>This was an action of assumpsit to recover the value of a quantity of logs sold by the plaintiff to the defendants. It appeared that in October, 1825, the parties entered into a written contract, by which the plaintiff sold to the defendants all the pine and spruce mill-logs which he might cut and deposit on the Kennebec river, at or a little below the forks ; and the defendants agreed to pay “ three dollars for each and every thousand feet of merchantable boards that the above named logs may be estimated to make.” On the 18th day of March, 182b, the defendants indorsed on the contract an acknowledgement that they had received logs sufficient to make 180,740 feet of boards ; and 10,000 feet more on the 23d of March. These receipts were dated at Carratunk. The plaintiff resided in Madison, and the defendants in Pittston. In July following, the logs were settled for, and a receipt in full given for the price.</p> <p>But the plaintiff founded his claim on an alleged error in the mode of estimating the quantity of lumber the logs would make, and by which the computation was made at the time of settlement. It appeared that there were two tables or scales in use at that time; the one denominated “the Learned scale,” which was in manuscript; the other “the Brunswick scale,” which was printed. Both of these scales, when applied to logs of small size, such as some of there were proved to have been, would indicate a greater quantity oflumbor than the logs would actually produce; but the latter scale '* as most correct when applied to logs producing 500 feet and upwards. The former scale was first used at Clinton; then at Watenille, and at Gardiner; and it gave results more favorable to the purchaser than the Brunswick'scale ; which being printed, accompanied with rales, and more convenient, had come into general use, superseding the other. The defendants estimated die logs by the Learned scalo, the plaintiff complaining of it at the time, and doubting its correctness, and being assured by the defendants that it was correct. Upon this point Weston J. before whom the cause was tried, instructed the jury, that if at the time of making the contract, and subsequently, the Brunswick scale had been exclusively used and adopted at and above Gardiner, on the Kennebec river, in the sale and purchase of logs, the contract must bo deemed to have been made in reference to that scale; and that if a different scale, less favorable to the plaintiff, and without his knowledge and assent, were applied by the defendants, the plaintiff was entitled to recover the difference between the scale which was and that which should have been applied.</p> <p>it appeared that, at the time of the settlement a deduction of six per cent, was made by mutual agreement, in order to make the amount, equal to merchantable lumber. The defendants offered evidence to prove that a greater allowance should have been made for this purpose ; and that the amount of the error thus made against them was greater than the excess in their favor which resulted from the use of the Learned scale. And' they insisted that if the settlement was revised for the correction of one error, there ought to be a correction of both. But it being in evidence that the logs were open to the view of both parties, and that the allowance of six percent. was proposed by the defendants and acceded to by the plaintiff, the Judge instructed the jury that the defendants were bound by the agreement.</p> <p>And the verdict, which was for the plaintiff, was taken subject to the opinion of the Court upon the correctness of those instructions.</p> <p>argued that as the quantity of lumber in the logs was to he “ estimated” by the parties, and they had exercised their joint judgment on the subject, with such aids as they chose to adopt, the estimation, being without fraud, was final and conclusive. And as either of the scales or tables in common use would give the plaintiff more than the actual amount sold, and he had received bis full pay according to one of them, he was not entitled to recover; but if there has been an error one way in the estimate, there has been a mistake of equal magnitude the other way, in the amount deducted; one of which ought to be considered against the other.</p>

This was an action of replevin of a horse; and was tried before Weston J. upon the issue of property in the plaintiff. It appeared that the plaintiff had delivered the horse to one Read, his son in law, to sell for him; and that Read had turned out the horse in payment of a debt he owed to one Gilman, who had sold him to the defendant.

This was an appeal from a decree of the Judge of Probate, establishing and approving the will of John Ware deceased ; and an issue was formed to the country upon the question of the sanity of the testator at the time of executing the will.

Tins was an action of trespass quare clausum fregit, for cutting jrees upon the plaintiff’s, being the southeasterly half of lot No. 68, and the southwesterly lialf of lot marked (t¿, in JYorridgewoclc. Tiie title of the plaintiff was derived under a grant from the proprietors of the Kenneb ec purchase, in which the lots were described as lots 68 and (Sj), according to a plan made by Thomas Farrington in 1774,” without further description.

This was an indictment against Thomas Brown, Esq. John Knowles and others, for an assault and battery upon one Leighton. The defendants justified under a warrant issued by Brown, as a magistrate, and executed by the other defendants as the constable and aids, for the removal of Leighton as a pauper, to the placo of his settlement.

The defendant being on trial, upon an indictment for adultery, the Attorney General offered iu evidence, in proof of the marriage, a copy from the town records of Lewiston of the following tenor ; “ Mr. Isaac Wedgwood and Miss Judith Kelly, both of Lewiston, wore joined iu marriage July 15, 1821.

Tins was assumpsit on a promissory nolo given by the defendant to Hackett; which the latter, as it appeared, had sold and delivered, without indorsement, to one Pratt, who in like manner sold it to one Lord, for whose benefit this action was brought.

This was a special action of the case, brought upon the statute regulating fences and common fields, to recover double the appraised value of a certain fence, alleged by the plaintiff to have been built on the line dividing his land from that of the defendant, in pursuance of the assignment of two fence viewers of the town of Madison, where the land was situated.

<p>This was a writ of entry to recover an undivided portion of an acre of land at Budge’s point in Bangor, adjoining Penobscot river, and extending to low water mark; in which the demandant counted on his own seisin, and a disseisin by one William, M’Glathry. Tiie only question at the trial, which was had before the Chief Justice, was upon the demandant’s title to the flats ; which he claimed under a deed from the Commonwealth of Massachusetts to Stetson, French and Lapish, as assignees of James Budge an original settler; and which the tenants claimed under a prior deed from Budge to M’ Glathry. The description in each of the deeds is recited hereafter in the opinion of the Court. The tenants offered to prove that the tide at this place ordinarily rises sixteen or eighteen feet; that the water is so fresh as to be generally used by mariners as any other fresh water; that the fiats are about eight rods wide; that the bank is elevated from three to five feet above the ordinary high water mark; and is of solid earth ; that at high water, vessels, boats and rafts have constantly passed over these flats; and that no person has ever been forbidden to take fish there. All which the demandant conceded. The tenant offered in evidence the Waldo patent, the Massachusetts charter granted by William and Mary, and the act incorporating the town of Bangor. He also offered the deed of the Commonwealth conveying to Henry Knox the township of Bangor, except a hundred acres reserved to each settler; for the purpose of disproving both the title and seisin of the demandant. But as the tenant claimed nothing under this deed, the Chief Justice rejected it; and upon the whole evidence he instructed the jury to find for the demandant, for whom they fc?und accordingly; but he reserved the law of the case for the consideration of the Court. It was agreed that all the deeds and documents mentioned in the cases of Lapish v. Wells, 6 Greenl. 175, and Dunlap &f al. v. Stetson, 4 Mason 349, might be considered in the decision of this cause. The other facts will be found in the opinion of the court.</p> <p>that as the demand-ant was bounded by the bank, in his title deed, his claim to the flats must arise under the colonial ordinance of 1641. But this ordinance could extend no farther than the limits of the colony which passed it, and therefore never had any operation eastward of Merrimack river. These flats, then,-belonged to the sovereign. Commonwealth v. Charlestown, 1 Pick. 182; Commonwealth v. Chapin, 5 Pick. 201; Charter Jac. 1. Nov. 3, 1620; 1 Haz. Coll. 103; Ancient Char. 34, 35; 2 Dane’s Abr. 691.</p> <p>But as the colony afterwards surrendered its charter to the king, it could not, on any principle, apply to grants made after the sur-. render. And if it could, it would avail nothing to the demandant, as it extends, by its terms, only to the shores and arms of the sea, and to “ salt water rivers;” whereas the Penobscot at Bangor is merely a fresh water river, though its waters are raised and driven back by the influx of the sea.</p> <p>Allen, on the same side, to the admissibility of the deed to Knox, cited Walcott v. Knight, 6 Mass. 413. And he argued that as M’Glathry was cestui que trust of the acre, he, and not the demandant, was entitled to the flats in front of it, by the ordinance of 1641. He also contended that the case showed a sufficient title to the flats in the tenants, by disseisin. Pray v. Pierce, 7 Mass. 382; Kennebec Proprietors v. Laboree, 2 Greenl. 295; Lansing v. Smith, 4 Wend. 9.</p> <p>cited Adams v, Frothingham, 3 Mass. 352, as reported by Mr. Bane, 2 Bane’s Abr. 697; Storer v. Freeman, 6 Mass. 435 ; Hatch v. Bwight, 17 Mass. 289 ; Bunlap v. Stetson, 4 Mason, 365 ; Handly’s lessee v. Anthony, 5 Wheat. 374; Morrison v. Kean, 3 Greenl. 474; Lunt v. Holland, 14 Mass. 149; King v. King, 7 Mass. 496; Howard v. Chadbourne, 5 Greenl. 15 ; Knox v. Pickering, 7 Greenl. 106; 7 Pick. 521 ; Rex v. Smith &f al. Boug. 441; 2 Bane’s Abr. 693, sec. 14.</p>

This was a writ of entry in the per, for possession of certain lands in Brewer, in which the demandant counted on his own seisin, and a disseisin by one Samuel Stone, whose administrator conveyed to the tenant. It was tried before Parris J. upon the general issue.

This was an action of assumpsit, brought to recover the proceeds of certain logs which the plaintiffs alleged to be their own property, and which the defendant had converted into boards and sold for cash; he claiming them as his own, by purchase from Cowan Oaks.

The two States of Maine and Massachusetts having brought a joint action of trespass quare clausum fregit, for cutting timber on their common lands, in which a verdict was returned for the defendants ; the latter moved for judgment for their costs. supported the motion on the ground that a judgment for costs resulted from the general provisions of Stat. 1S21, ch. 59, sec. 17, giving costs in all cases to the party prevailing.

<p>In an action of the case for digging a trench and diverting water from the plaintiff's mill, full costs are to he taxed for the plaintiff prevailing, though the damages awarded to him are less than twenty dollars.</p>

<p>Kn order to constitute a good tender, it is essential that the offer be unconditional: and that the money or other thing to be paid be actually produced ; unless the creditor dispense with its production, either by express declaration, or other equivalent act.</p> <p>Thus where one gave his promissory note for sixty dollars, payable in neat stock at a certain doy and place ; and meeting the creditor on the day of payment at another place, told him that the stock was ready for him on a neighboring farm, provided he would take forty eight dollars worth in full for the note, denying that any more was due ; which the creditor refused, asking “ why he did net bring on the cattle if ho had any”; — it was held that this if as not a good tender.</p>

<p>Where it was the usage of a town to liquidate its debts by. an order drawn by the selectmen on its treasurer, in favor of each creditor"; and such an order was drawn and tendered to a creditor .of the town, wlio well; knew the' usage at the time of contracting, but who refused to receive the order because it did not cover certain disputed items of his account; — it was'held, that this was not a.sufficient tender to bar the creditor from pursuing his remedy on the original demand.</p>

<p>The defendant -in this case was indicted for that on the first day of July 1830, and on divers days and times between that day and the time of finding the indictment, which was at the October term following, he presumed to be a common seller of wine, beer, ale, ■cider, brandy and rum, and oilier strong liquors, by retail, without being duly licensed, 8jc. contrary to the form of the statute in such case made and provided ; — and being found guilty upon the whole indictment, he moved in arrest of judgment, because by the latest statute on this subject, the selling of beer, ale and cider was not unlawful after the day next preceding the second Monday in September of the same year ; — because it did not appear with sufficient certainty that any offence had been committed ; — and because the offence was not laid against the form of the statutes, there being two relating to the matter.</p> <p>cited Stat. 1821, ch. 133, sec. 1 ; Stat. 1824, ch. 278, sec. 2 ; Stat. 1830, ch. 482, sec. 4 ; 4 Com. Dig. 384, Indictment G. 6 ; 2 Hawk. P. C. 252 ; 3 Bac. Abr. 114, Indictment H. 5.</p> <p>cited 1 Chit-ti/s Crim. law, 239; Broughton v. Moor, Cro.Jac. 142; Dingley v. Moor, Cro. El. 750.</p>

This case, which was assumpsit for the price of a quantity of bricks, came up by exceptions taken by the defendant to the opinion of Ruggles J. before whom it was tried in the Court below.

<p>The parties in this case entered into an agreement, of the following tenor : — “ Whereas Benjamin Smith claims betterments on lot No. 224 in Frankfort, the soil of which is owned by Israel Thorndike, jr. 'David Scars, and William Prescott: Now it is hereby agreed between said Smith, and said Thorndike, Sears and Prescott, that Martin Kinsley, Vhineas Ashman and Jeremiah Simpson, shall determine as referees, the decision of the majority to be binding on both parties, whether said Smith is by law entitled to betterments in said premises; and if so entitled, what amount said Smith shall receive as in full of said betterments; and said Thorndike, Sears and Prescott agree to pay said Smith the amount estimated by said referees as the value of said betterments; and the said Smith agrees to accept the sum so awarded him as aforesaid, and to relinquish to said Thorndike, Sears and Prescott, all his right to said premises. It being understood by both parties tliat if said referees should award that said Smith is not legally entitled to betterments in said premises, said Smith is to relinquish to said Thorndike, Sears and Prescott all right to said premises.” The facts in the case were contained in a written statement agreed and signed by both parties ; upon which the referees decided that Smith was legally entitled to betterments, the value of which they assessed. The present action was assumpsit upon this award with the common money counts; which the defendants resisted; and a case was made for the opinion of ths court, upon these three questions; — 1st, Whether the referees were bound to determine according to law the matter submitted to them; — 2d, Whether they had so determined ; — 3d, If they had not, then whether the defendants might avail themselves of that objection in this action.</p> <p>that thejwhole subject, both law -and fact, was exclusively submitted to the referees.</p> <p>contended that -the referees were bound to decide according to the rules of law, •and had undertaken so to decide, as appeared by the award itself: 'and that the mistake of law was examinable in this form of action. To the point that the referees had mistaken the law, upon the facts agreed, they cited Knox v. Hook, 12 Mass. 339 : Runey v. Edmunds, 15 Mass. 291; Shaw v. Bradstreet, 13 Mass. 241; Kennebec Proprietors v. Kavanagh, 1 Greenl. 348. And to the last point they cited Kent v. Elsiob, 3 East. 18 ; Jones v. Boston ,Mill Corporation, 6 Pick. 148; Kyd on Awards, 351 ; JYorth Yarmouth ¶. Cumberland, 6 Greenl. 21 ; Greenough v. Rolfe fy .ial. 4 JYew Hamp. 357; Ames v. Milward, 8 Taunt. 637 ; Kleine ■¡o. Catara, 2 Gal. 61. „</p>

This was an action of assumpsit on a contract in writing, irs which the defendants, reciting-that the plaintiff, as a deputy sheriff, had attached a thousand pine mill logs of the value of two thousand dollars, on a writ in favor of Henshaw &f al. v. Davis Sf al. which they had received of the plaintiff, promised to redeliver them to him on demand, or pay him two thousand dollars, at his election.

This was an action of debt brought by a constable of the town of Alexander, on a penal bond dated Dec. 18, 1827; reciting that the plaintiff had on that day arrested Ebenezcr Gooch, the principal defendant, upon an execution against him; that on his complaint a justice of the peace had assigned the 17th day of March, 1828, for him to appear at a certain place and take the poor debtor’s oath; pursuant to the act of Feb. 9, 1822; and conditioned that he should so appear and…

<p>Upon the death of the defendant in replevin, the suit abates, the administrator not being authorised to come in and defend.</p> <p>In such case it seems that the remedy for the legal representatives of the defendant is by an action of replevin or trover against the plaintiff, after demand and refusal.</p>

The plaintiff irr this case, while a deputy of Mr. Balch, late sheriff of this county, attached three oxen by virtue of a writ in his hands in favor of one Sawyer, against the defendant Taylor and one Tuttle; which he placed in the hands of Taylor, Reding and Crosby, the present defendants, for safe keeping; taking their receipt for the same; in which they promised to re-deliver the property to the officer, or his order, or to his successor in office on demand ; and further…

<p>In order to charge the sheriff, under StatA%21, ch. 92, sec 3, with thirty per cent. interest on monies collected by him and not paid over upon demand, it is necessary that the. demand bo made by a person having authority to receive the money and execute a legal and valid discharge. And whether such discharge should not altío be made out and offered to the sheriiP>“'(7&<£/'0.</p> <p>Therefore where the creditor’s attorney of record wrote to a third person, requesting him to make a forme 1 demand of the money, and to take a minute of the odour's answer, without more saying j this was holdcn insufficient.</p>

<p>Where a warrant for the location of public lots under Stat. 1821, 07?.. 41, directed the committee to give notice to all persons concerned, who were known and living within the State, instead of requiring them to publish and post up general notifications to all persons, in the terms of that statute : and they returned that they had given the notice required by their warrant; the location was held bad; and the proceedings quashed.</p>

This was an action of the case, in which the plaintiffs alleged that they were owners of a saw-mill on the East Machias river, below a saw-mill of the defendants ; and that the latter, having erected two lath-mills within their own saw-mill, threw their lath-edgings into the river, which being carried by the current into tlic plaintiff’s flume, choked and obstructed his gate-way, and diverted the water from his mill, &cc.

This was an action of trespass quare clausum fregit, for entering tho plaintiff’s field in Sullivan, and cutting and carrying away his hay, and treading down his potatoes, on the 81st day of July 1827; and it was tried upon the general issue.

This was a bill in equity to redeem a part of certain mortgaged premises; and was brought by the assignee of the mortgagor, against the mortgagee.

The facts in this case, which came before the Court upon demurrer to the replication, will be found to be sufficiently stated by the Chief Justice. argued that the award which they were bound to perform was one which should be made pursuant to the statute, whose forms the parties had adopted as part of the contract ; and that it was never the debtor’s intent to deprive himself of the legal mode of correcting any errors of the referees. 5 Dane's Mr. 126, sec, 5, 6 ; 1 Com.

This action, which was for medicines and medical services, was brought within one year aYter the decease of the testator, on the ground that, being for the expenses of his last sickness, the demand was within the exception in the statute which exempts the executor or administrator from the costs of any suit commenced within a year from the date of his official bond.

This was an action of assumpsit against John «Swann, Johri Woodcock, Benjamin T. Pierce, and Daniel F. Harding, on a promissory note given to the plaintiff, of the following tenor : — Camden, Oct. 29, 1829. For value received of James Doak, we, Swann, Woodcock fy Co. promise-to pay him or his order twenty seven dollars and thirty cents on demand' with interest.

This was an action of debt on a goal-bond; and came before tbe Court upon a case stated, in substance as follows : Tbe debtor who dwelt in Prospect, in the county of Waldo, was committed Nov. 21, 1829, in execution, to the gaol in Castine, in tbe county of Hancock, it being constituted the prison for Waldo, by Stat. 1827, ch. 354, for five years, if required, until a gaol should be erected in tbe latter county; and for this enlargement be gave tbe bond declared on, which was…

<p>This was au action of trespass for taking and carrying away a yoke of oxen and three cows, the property of the plaintiff; who claimed them under a bill of sale from Joseph Bradbury to himself, dated April 22, 1829. The defendants took the cattle from the plaintiff by order of the administrator on the estate of Jabez Bradbury, the father of Joseph. The question was whether the cattle belonged to the intestate’s estate, or not. It appeared that the father, June 29, 1826, conveyed his farm to his son Joseph, reserving a life estate therein to himself; and that the son at the same time gave a bond to his father, conditioned to pay all the father’s debts ; to support him during life in a decent and comfortable manner, providing him with a horse and chaise, a yoke of oxen and farming tools to use at his pleasure; and to.deliver and account for to the father, on demand, certain enumerated neat stock and sheep belonging to the father, or other stock as good. The son thenceforth managed the farm and stock, and, with the father’s consent, exchanged some of the cattle, and conducted the business of the father as his agent, the latter declaring that after his death Joseph would iiave all that was on the farm. About two months after his father’s death he sold to the plaintiff the property in question being part of the cattle enumerated in the bond.</p> <p>The Chief Justice, before whom the action was tried, was requested by the counsel for the plaintiff to instruct the jury that the bond constituted a power of attorney to the son to sell any of 'the property for which he therein engaged to account, that this authority was coupled with an interest, and so was not terminated by the father’s death ; and that if the cattle were ostensibly the property of Joseph, and so much so as that the plaintiff might fairly presume them to be his, and this with the knowledge or by the act of the father, they ought to find for the plaintiff. These instructions the Chief Justice declined to give ; and informed them that the authority of the son expired at the death of his father. Whereupon they returned a verdict for the defendants ; which was taken subject to the opinion of the Court upon the question whether the desired instructions ought to have been given.</p> <p>contended jirsi, that Joseph had sufficient authority from the father, by the terms of the bond of June 1826, to dispose of the cattle. The only obligation on Ms part in such case was to furnish “ others as good.” Secondly3 that this authority was coupled with an interest, and so did not expire at the death of the father. The legal operation of the transaction was a gift of the property to the son, reserving to the donor the privilege of employing the cattle of the donee in his own service. Hunt v. Rousmaniere, 8 Wheat. 204 ; Hunt v. Ennis, 2 Mason, 250 ; Bergen v. Bennett, 1 Gaines’s Cas. 1. — Thirdly, that the father having suffered Joseph to treat the property as his own, and having enabled him to make a legal sale without employing any other name than his own as vendor, is now bound by his acts. JJvJfmton v. (lerrish, 15 Mass. 158; Hussey v. Thornton, 4 Mass. 407 ; Thurston v. McKown, 6 Mass. 428 ; Dana v. JYewhall, 13 Mass. 498; Schimmelpenninck v. Bayard, 1 Pei. 290 ; Pickering v. Busk, 15 East. 42.</p>

This was a writ of error to a Justice of the peace, to reverse a judgmeut. rendered in favor of the defendant in error, who was clerk of a militia company, against the now plaintiff in error who was enrolled therein as a private soldier, but refused to do military duty.

This was an action of debt on a bond given for the debtor’s liberties. The defendants pleaded in bar that the principal debtor was arrested in execution on the day of the state elections, and while he was at his own house, preparing to attend the election in Sanford, and a reasonable time only previous thereto, he being a legal voter ; and that to effect his release, and by duress of imprisonment, the bond in question was executed.

This was an action of assumpsit on a promissory note to the plaintiffs, which the defendant and one Wyatt had signed jointly and severally with one Varney, and as his sureties, dated March 28, 1825, for six hundred dollars, payable in sixty days with interest.

<p>This was a writ of right, brought by Stephen Sewall against Joseph Sewall, upon his own seisin within twenty years, for one forty oigbth part of certain lauds. The title of the demandant was regularly deduced and proved, down to July 19, 1827, on which day, as it appeared from a deed offered by the tenant, he had conveyed all his right, litio and interest in the premises to David Wilcox. To show that he was disseised at the time of this conveyance and that therefore nothing passed by the deed, the demandant read the record of a partition, in the Common Pleas at February term, 1823, upon the petition of John Sewall and others, the demandant not being a party thereto, and having had no notice of its pendency, from which it appeared that the whole tract had been divided among the petitioners and others, and their parts set off in severalty, one moiety having been assigned to John Sewall, as bis share. This part he conveyed by deed of quitclaim, dated July 17, 1824, to the tenant, who afterwards entered into the same. The demandant contended that these proceedings, and the entry of the tenant under John Sewall’s deed, amounted to a disseisin ; and that not having entered at any time after the devise under which he claimed, he -,vas ousted, and nothing passed by his deed to Wilcox. Daniel Sewall, Esq. testified that in eight or ten different conversations with the tenant, since the conveyance of John Sewall to him, lie had admitted that tho demandant had a right in common in some part of the demanded premises, which he wished to purchase ; but that after the making of the deed from the demandant to Wilcox, the sonant denied any right in the demandant, and claimed to hold the whole, it also appeared that in October 1830, tho tenant had aliened all his right to a part of the land ho bought of John Sewall, describing it by metes and bounds.</p> <p>Tho demandant’s counsel requested the Chief Justice, before whom the action was tried, to instruct the jury that if they believed that the tenant, in his conversations with the witness, intended only to adroit the right of the demandant to the land, and not the fact that lie had entered or was in possession as a tenant in common with him, then the demandant was disseised at the time of making his deed to Wilcox, and therefore nothing passed by it, and the demandant was entitled to recover. The Chief Justice declined so to instruct them : but he did instruct them that if they believed, from the testimony, that the tenant, after she purchased of John Sewall, admitted that the demandant had a common right in some part of the tract, which he was desirous of purchasing, and that from that time till the making of the deed to Wilcox he did not claim to hold adversely to or in defiance of the title of the demandant, but in consistency therewith, there was nothing to prevent the operation of the deed to Wilcox, to whom the demandant’s title was thereby conveyed. He also instructed them to take no notice of that part of the testimony which related to the declarations made by the tenant after the date of the last mentioned deed.</p> <p>To which instructions the counsel for the demandant filed exceptions.</p> <p>D. Goodenow argued in support of the exceptions, and cited 3 Bl. Com. 179, 180.</p> <p>argued that his occupancy was in submission to some title in the demandant, and therefore did not defeat the operation of his deed. Kennebec Proprietors v. Laboree, 2 Greenl. 281; Commonwealth v. Dudley, 10 Mass. 406; Wells v. Prince, 4 Mass. 67; Cook v. Allen, 2 Mass. 470. The deed from John Sewall worked no disseisin, it being merely a conveyance of such interest as he might have in the property, and not an absolute conveyance of the fee. Fox v. Widgery, 4 Gr.eenl. 214. Nor is the reception of the whole profits by the tenant a disseisin, he being only a tenant in common. Barnard v. Pope, 14 Mass. 438. And the seisin of a cotenant is sufficient for a devisee; Brown v. Wood, 17 Mass. 74 ; as well as for an heir. Shumway v. Holbrook, 1 Pick. 116.</p>

Assumpsit by the indorsee against the indorsers of a promissory note made by Porter Sands, May 1, 1830, and payable to the defendants or their order on demand, and indorsed in blank to the plaintiff. At the time of its indorsement, which was July 30, 1830, the defendants requested the plaintiff “ not to call on Sands at present,” and the plaintiff replied that he would not.

In this action, which came before the court upon a case stated, the only question was upon the settlement of Stephen D. Littlefield, a pauper, for whose support the action was brought.

This was an action of assumpsit for reimbursement of the charges of the support of one Elijah Smith. The material facts, which were developed at the trial, and then stated in a case made by the parties, will be found in the opinion of the Court. contended that the pauper gained a settlement by having his domicil in Newfield at the time of the passage of Stat. 1821, ch. 122. Putnam v. Johnson, 10 Mass. 501. He had the/ms domi, and freedom from arrest, in the house of Dr. Ayer.

<p>If an execution be issued within “ twenty four hours” after judgment, though it be on the following day, it is irregular under Stat. 1821, ch. 60, sec. 3, and may for that causo be sol aside.</p> <p>Parol evidence may be received to show the hour of the day at which an execution was issued, for the purpose of showing that it was within twenty four hours after judgment, and therefore irregular.</p> <p>But such irregularity can only be shown by parties or privies; and it cannot affect the title of an innocent purchaser without notice.</p> <p>Whether this objection can be taken collaterally, or only directly upon a motion to set aside the execution ; — quiere.</p> <p>The extent of an execution on real estate cannot be considered as commenced till the appraisers are sworn.</p> <p>Whether it can be said to be commenced before the land is shown to the appraisers ; — dubitatur.</p> <p>Therefore where an appraiser was chosen by the debtor’s attorney, and the debtor died before either of the appraisers was sworn, the extent was for this cause held void.</p> <p>Parol evidence is admissible to show the time of the debtor’s death, for the purpose of avoiding the extent, as it does not contradict any fact stated in the officer’s return.</p>

This was a writ of scire facias against the petitioner, as indorser of a writ, to which he demurred specially in the court below ; and the demurrer being overruled, and judgment rendered for the plaintiff, he appealed to this Court, but by mistake his appeal was not entered ; for remedy of which be now applied for a writ of review.

This was an action of assumpsit by the indorsee against the administrator of the late Gen, John MlDonald as indorser of a promissory note, of the following tenor: — •“Umerick, April 8, 1820. For value received I promise to pay John McDonald or his order three hundred and twenty-one dollars and forty-six cents on demand with interest.

The material facts in this case, except that the land was sold Dec. 24, 1829', under the license granted by the Judge of Probate, will be found in the opinion of the Court. cited Ex parte Allen, 15 Mass. 58; Thompson v. Brown, 16 Mass. 180; Ex parte Richmond, 2 Pick. 567 ; Heath v. Wells, 5 Pick. 140.

<p>This was an action of covenant, in which the plaintiff declared upon the covenants in two deeds of conveyance, with general warranty in the usual form, made May 11, 1825; by which the defendants conveyed certain real estates in KennebunJc to one Jesse Varney, from whom by certain mesne conveyances, title deeds had passed to the plaintiff, who claimed as assignee of the covenants declared on. The first tract was described as lying on the east side of Mousmn river, bounded by the bank of the river, by the post road, and by the lands of divers persons therein named j and containing eighty eight acres and one hundred and seventeen rods, exclusive of “ a town road which was originally granted from said post road and adjoining the original bank of said river, to the landing together with some other exceptions. The second tract was part of a mill lot with the grist mill thereon, standing on the east side of the same river, near the bridge, and adjoining the road.</p> <p>In each of the two counts the plaintiff alleged a breach of the covenants of seisin in fee, freedom from incumbrances, and good right to sell and convey, in each of the deeds of the defendants, as committed at the time of making the deeds. In the first count he also alleged a subsequent breach of the warranty, in an eviction of himself from half of the grist mill by one George ljord, under a writ of habere, facias possessionem; and in the second he alleged a similar breach, by an ouster of himself from all the premises by certain persons named, under on elder and better title.</p> <p>The defendants pleaded, first, non esl factum ; and secondly, a general performance of the covenants ; on both which issues wero joined to the country. Thirdly, that as the second tract, and so much of the first tract as lies eastwardly of the town road mentioned as running along the bank of the river, they were lawfully seised in fee thereof by a good and indefeasible title, at the time of making the deeds, by virtue of which the same seisin and title passed to Varney, their grantee; and that as to the residue, (meaning the parcel between the road and the thread of the river,) they had no right or title to the same at the time of making the deeds, and that Varney thereby took nothing. To this the plaintiff replied that as to this residue, at the time of making the deeds, the defendants wore seised in fact,, though not in fee and right; and that Varney entered under his deeds, and thereby acquired the same seisin. The defendants rejoined by a traverse of this alleged seisin in fact, tendering an issue to the country, which was joined.</p> <p>At the trial, before the Chief Justice, it was admitted that the only question between the parties was whether the defendants were seised in fact of the whole grist mill and privileges, and of the eastern half of Mousum river, to the middle of the channel, at the time of the grant to Varney. The plaintiff proved that the eighty eight acre lot was never occupied home to the river the whole distance j that the road was always fenced and kept open a part of the way down to tiie lauding 5 and that the residue was inclosed in common with the defendants’ pasture, by an arrangement made between them and the selectmen of the town) that the defendants ran their fence to the river to prevent their cattle from escaping ; that the opposite or western bank of the river was owned by one Gilpalrick, who kept a fence on the bank, tlirough which the cattle of the defendants, crossing the river, broke and entered in the year 1824j whereupon the defendants directed their tenant, with the consent of Gilpalrick, to repair his fence, which was done. 'Diere was some evidence offered to prove a seisin in fact of the whole grist mill lot > but it was only hearsay, and of the most shadowy character.</p> <p>The plaintiff also offered in evidence a copy of the judgment recovered by George Lord against him for half of the grist mill; which the Chief Justice rejected as irrelevant to the issue. He also offered proof of his damages, which the Chief Justice also rejected ; and directed a nonsuit; being of opinion that the evidence was insufficient to prove a seisin in fact as alleged in the replication; and that therefore no estate in the residue in question passed to Varney by the deeds. The nonsuit was entered subject to the opinion of the Court upon its propriety, and upon the ruling of the Chief Jus-, tice at the trial.</p> <p>cited Wyman v. Ballard., 12 Mass. 304; Sprague v. Barker, 17 Mass. 586 ; Cutis v, Spring, 15 Mass. 135 ; 7 D. fyE. 537; Brimmer v. The Prop’rs. of Long Wharf, 5 Pick. 135 ; Lunt v. Holland, 14 Mass. 149 ; Hatch v. Dwight, 17 Mass. 289 ; Kennebec Propers. v. Springer, 4 Mass. 416 ; Boston Mill Corp. v. Bulfinch, 6 Mass. 229 ; Little v. Palister, 3 Greenl. 6; Hamilton v. Cutts, 4 Mass. 349; Hall v. Leonard, 1 Pick. 27 ; Wilkinson v. Scott, 17 Mass. 249 ; Fisher v. Dunning, 1 Hen. &/■ Munf. 563 ; Backus v. McCoy, 3 Ohio Rep. 218.</p> <p>cited Peaceable v. Reed, 1 East. 568; Doe v. Prosser, Cowp. 217; 3 Dane 478 ; 6 Mass. 229; 4 Mass. 416 ; Commonwealth v. Dudley, 10 Mass. 403 ; Cushman v. Blanchard, 2 Greenl. 266 ; Langdonv. Potter, 3 Mass. 219; Codman v. Winslow, 10 Mass. 251 ; JYewhallv. Wheeler, 7 Mass. 199; Pray v. Pierce, 7 Mass. 381; Tufts v. Adams, 8 Pick. 549.</p>

Assumpsit on a letter of guaranty given by the defendant, under the following circumstances. Alfred Randall and Calvin Gilson, about the first of January, 1830, formed a secret partnership in re-tail trade, to be conducted in Portland in the name of Randall alone.

This was an action of trespass, quart clausum fregit, for cutting and carrying away certain trees from the lot numbered seven in the eleventh range of lots in Bridgton, between January 1, 1829, and April 1, 1831, which was the date of the writ; and it was tried before Parris J. upon the general issue.

This was a bill in equity, in which the plaintiff stated that being a judgment creditor of one Dining, he placed the execution in the hands of David Wescott, a deputy sheriff, to be served and satisfied upon a right in equity of redemption of certain land and buildings, which had been attached upon the original writ; that the defendant attended the sheriff’s sale and bid upon the property, which was stricken off to him as the highest bidder ; that a record of the sale was…

<p>This was a writ of error, brought to reverse a judgment rendered by Whitman C. J. in the court below. The action was trespass on the case, brought originally before a Justice of the peace, by Jeremiah Baker and Samuel Baker, against Sylvanus Blanchard, Amasa Baker, and Benjamin Mitchell, for diverting the water of Royall’s river from their mill. The declaration was as follows : — “for that the plaintiffs, on the thirtieth day of April, A. D. 1830, were, and ever since have been, and now are seised of thirteen sixteenths of a certain ancient water-mill, called a com or grist mill, with an ancient mill-dam and privilege appurtenant thereto, situate in North Yarmouth, commonly called and known by the name of Baker’s mill, in their own demesne as of fee, as tenants in common with the said Sylvanus, Amasa and Benjamin; and the plaintiffs and all those whose estate they now have in the said mill with the appurtenances, in common, or with the owners of the remaining three sixteenths, have ever had, and now ought to have the whole of a certain stream or water course, called and known by the name of RoyalVs river, running to the said mill, for the benefit thereof, as ancient rights and privileges appertaining to the said mill. But the said Sylvanus, Amasa and Benjamin, well knowing the premises, but intending to injure the plaintiffs, 'and deprive them of their part of the use and profits of said mill, did on the said thirtieth day of April, and on divers other days and times between that, and the day of the purchase of this writ, dig -up and remove the banks of said river and water course, above said mill, and open a wide and deep channel from said river, and thereby divert a great part thereof so running as aforesaid from the said mill, so that the said mill, which before was able and was used to grind twenty three bushels of corn and grain in every hour, now and during the time aforesaid, by reason of the diversion aforesaid, of the said water, is and has been able to grind only nine bushels of corn and grain in every hour; by reason of which the plaintiffs have been deprived of a great part of the profits of their share of said mill, and still continue to be deprived thereof.</p> <p>Also, for that whereas the said Sylvanus, Amasa and Benjamin, at said North Yarmouth, on the first day of June, in the year of our Lord eighteen hundred and twenty eight, intending to injure the owners of said mill, and mill privilege, and those who should thereafter become owners thereof, and deprive them of the water running to and by the same, had on that day, and on divers other days between that and the fifth day of August, in the year last aforesaid, dug up and opened a channel above said mill privilege and thereby diverted a great part of the water running as aforesaid, from the said mill privilege; the said defendants thereafter, to wit, from the twenty seventh day of April, now last past, until the day of the purchase of this writ, continued the said channel open, and deepened the same, and thereby diverted a great part of the water from said mill and mill privilege and greatly injured the same.</p> <p>The following is the substance of the bill of exceptions which was filed by the original defendants, in the case.</p> <p>Samuel Baker, with his three sons, JSathaniel, Amasa and Samuel, in 1796, built a single grist-mill, which was the first mill, upon the premises in question, on the west side of RoyalVs river. It was built upon the privilege, of which said Samuel the father and his three sons commenced an occupation ; and the father had before used the land adjoining for a pasture, but without any title to the same. Samuel Baker the father died seised of one quarter part of the premises in question on the west side of said river, in 1801. He left nine children, one of whom died, before any of the conveyances hereafter mentioned, were executed ; and that without issue. The children, by bond, dated 17th JYov. 1801, agreed to settle their father’s estate, “among themselves,” without administration ; “ to make provision for their mother, ” to depute some person to pay all “debts due from said estate, and all the remainder to make partition of among themselves in the most just and equal manner that could be done.”</p> <p>The plaintiffs, to prove their title as set forth, produced the deed of Nathaniel and Amasa Baker to Ammi R. Mitchell¡ dated 25th August, 1807, and recorded on the following day ; conveying “one half of a grist-mill standing on the falls in RoyalVs river in North Yarmouth aforesaid known by the name of Baker's falls, together with one half of all the privilege belonging to said mill, and one third of a card machine standing on the same falls, together with one third part of all the privilege belonging to said machine. Also, five eights of a nail mill or machine, together with a blacksmith’s shop and tools, standing on the aforesaid falls, together with all the privilege belonging to said iron works or machines, together with a privilege of the road leading from the county road to said mills and privilege — A deed of the same premises from said Ammi R. Mitchell to Joseph Sturdivant, Ephraim Sturdivant and Andrew Blanchard, dated 3d Sept. 1808, and recorded 6th Sept. 1808 :— and of the said Sturdivants and Blanbhard to Jeremiah Baker, one of the plaintiff's, dated 28th April 1826, and recorded 4lh May 1826*</p> <p>They also produced the deed of Samuel Baker, son of Samuel Baker, deceased, and father of Jeremiah, dated 8th April, 1816, and recorded 10th June, 1818, conveying to Jeremiah, among other property therein recited, “ one quarter of the grist mill; three undivided eighth parts of the nail mill and machine; three eighth parts of the blacksmith shop and tools; which I purchased .of Hon. Amrni R. Mitchell, and two thirds of the carding machine; all-standing on . Baker's falls; together with the privileges belonging to the several parts of mills, shops and machines aforesaid —Also the deed of Solomon Winslow and wife to said Jeremiah', dated 8th May, 1826, and recorded 28th Feb. 1827, conveying to him “one eighth part of the real estate which was assigned to the said Eleanor," widow of Samuel Baker the ancestor, “as aforesaid, and which at her demise reverted to her heirs and the heirs of the said Samuel Baker, deceased.” The plaintiffs further offered in evidence a deed of quit-claim from Joseph Ml Baker to Jeremiah Baker, orte of the plaintiffs, dated Dec. 10', 1827, conveying one thirty second part .of Baker's mill and privilege: also a warranty deed from the plain* tiff, Jeremiah Baker, to the plaintiff, Samuel Baker, dated April 27, 1830, conveying one fourth part of the same mill and privilege.^, It was proved that by an agreement among the heirs of said Samuel deceased, one fourth of,the mill and privileges appurtenant-, was as* signed to the widow of said Samuel deceased, as, and for her. dower in his estate. The defendants contended that upon the true con* 'struction of the deeds introduced by the plaintiffs, no title to the privileges therein mentioned, passed from the several grantors^ farther than such title as they could claim as heirs of Samuel Baker; and that as there were eight heirs, the plaintiff had established title to no more of the privileges before mentioned, than, the three eights and one thirty second, under the respective deeds of Samuel Baker, Nathaniel and Amasa Baker, and Solomon Winslow and-wife.</p> <p>But the Court ruled that the plaintiffs had proved their title to thirteen sixteenths of the mill, dam and appurtenances, and of the 'water-course, or stream, as set forth in their- declaration.</p> <p>In defence, the defendant's offered in evidence the quitclaim deed of Josiah Lovell and wife, Sarak Baker and Hannah Baker, children and heirs of Samuel Baker, conveying to Amasa Baker, one of the defendants, all their right, title and interest in and to one “ fourth part of a grist mill and mill privilege situate in said NorthYarmouth.” “ Also all other estate of said Samuel Baker deceased, of which he died seised and possessed* and which we, as his heirs, have not heretofore disposed of by deed or otherwise.” This deed was dated 9th January, 5 824, duly acknowledged, and recorded 14th September, 1827. Also the deed of quitclaim of JVct* ihahiel Baker, Solomon Winslovj and Catharine his wife, and Josiah Lovell and Jane his wile, children and heirs of said Samuel Baker, to said Amasa Baker, dated 19th February, 1827, duly acknowledged and recorded 14th September, 1827, conveying to said Amasa, all their right, title and interest in and to one fourth part of the grist-mill and privilege called Baker’s mill's.” This, with the property mentioned, was described as “ having been assigned to our late mother Eleanor Baker, as dower. Also, all other real estate of said Samuel Baker, deceased, which has not been divided among the heirs.”</p> <p>The defendants further offered in evidence the warranty deed of Amasa Baker, one of the defendants, to Sylvanus Blanchard, and Benjamin Mitchell, co-defendants, dated Cth September, 1827, con» veying to them “ one eighth pari of the mill privilege in Royalls’ river in said North-Yarmouth, known by the name of Baker’s mill’s,” in common with the other seven eighths of said privilege — . “ together with a privilege of the aforesaid road” (meaning the mill road) “ to pass and repass to said privilege ; — also, one undivided half of another piece of land” on the south-east side of said road, and adjoining the mill privilege. “ Also, one undivided half bf another piece of land,” on the north-west side of the road, and adjoining the mill privilege. Under the above recited deeds, the defendants, upon the construction above contended for, claimed title to four eighths of the premises in question, on the west side of the river. It was proved that Samuel Baker the elder* oectipied and fenced the land adjacent to the river, adjoining the mill privilege* and that no one but himself ever claimed the same during his life, except that his three sons claimed as before mentioned the three quarters of the mill and privileges appurtenant, and occupied the same.</p> <p>The defendants also proved their title to the premises, on the east side of Roy alls’ river, upon which the diversion of the water is alleged to have been made, through the heirs of David Jones, who was shown by the witnesses, to have been in open possession of the same for upwards of thirty years before his death, which was in 1821, occupying and fencing the same to the river. In their deeds from Jacob H. Jones, son of David, the estate conveyed is bounded on a line running “ to the river j thence down the river, as it treads, to a stake,” &c. These deeds are from Jacob jff. Jones to Amasa Baker, Sylvanus Blanchard and Benjamin Mitchell, the one dated August 17, 1827, duly acknowledged and recorded October 31, 1827 — the other dated November 1, 1827, duly acknowledged and recorded November 6, 1827.</p> <p>It was also proved that Dr. Jones, thirty years ago, told Nathaniel Baker, that the owners of the mill on the west side of the river might join their dam on the east side of the main stream, until such time as he should want the privilege there ; and that before the plaintiffs had built their new dam, the defendants forbade such building or joining of it upon the land on the east side.</p> <p>In relation to the channel or outlet, through which the defendants conduct water to drive their mill, it was proved that the water had passed through it in greater or less quantities for thirty-five or forty years, when the water was high ; — that the plaintiffs’ present dam is eight inches higher than the former dam was ;^-that the water did not run in the defendants’ channel, before it was deepened, unless the water was several inches higher than the old dam; that the defendants have since lowered or deepened their channel two and an half feet; so that when the water runs over the plaintiffs’ present dam, there will be a depth of water in defendants’ channel of three and an half feet. The water always trickled through the rocks at the entrance of the channel. They also proved that after the defendants had deepened their channel, they were obliged to dam it up while they were laying the foundation of their mill, owing to the flow of water, which was such as to prevent working without such dam; though at the time of building, the river was by no means full; and that the water ran through the channel, after the old dam, extending from the plaintiffs’ mill across the river, was carried away, and when there was nothing over one half of the river, to prevent the escape of the main stream.</p> <p>It was proved that the defendants’channel would injure the plaintiffs’ mill if it were a single mill, in case of droughts, such as ordinarily occur in the summer season, although none such occurred during the summer of 1830 ; — that there would be five and an half feet head al the plaintiffs’ mill, when none could run in the defendants’ channel, which would drive the plaintiffs’ mill very well ; but not so well as when the head of water was greater, and especially when so as to run over the plaintiffs’ dam ; and that, by actual measurement, the bed of the stream, at the entrance of the channel aforesaid , is not so low as the bed of the main stream ; nor has been made so low at any time by the defendants. The defendants deepened their channel in 1829, and erected their mill in the same year.</p> <p>Upon this testimony the defendants contended that they had good and legal right to one half of the water in the main stream, and to take it through the channel aforesaid ; as by so doing they were making but a reasonable use of the water ; and that they had a right, as riparian proprietors, to open the channel, which they maintained was an ancient channel, and divert the water to their own use in the manner and to the degree which they did ; and that the plaintiffs could not contend for more of the stream than was necessary to carry a single mill, which was all the right they could claim by virtue of their grants.</p> <p>But the Court ruled, that the defendants had no such right to open the channel, or to take the water through the same for the use of their mill ; nor such right to divert the water as contended for ; that the plaintiffs had all the right in the stream which they had set forth ; and so instructed the jury ; and that if the defendants did cut or open the channel to the injury of the plaintiffs, they must find a verdict far the plaintiffs, and assess damages, which they did accordingly, in the sum of one dollar.</p> <p>The defendants also contended that against them this action could not be maintained, they being tenants in common with the plaintiffs, and, as such, declared against; but that if chargeable in any manner, they were chargeable under a different form of action..</p> <p>But the. Court ruled that the action was maintainable as it stood.. To all which the defendants excepted,</p> <p>Upon this record the following errors were assigned »</p> <p>1st. that the Court of Common Pleas ruled and determined thai; by the legal construction of the deeds produced by the original plaintiffs, they had proved a good title to thirteen sixteenths of the mill, dam and appurtenances, and of the water-course or stream, described in the declaration., when, by such legal construction they had proved title, to only three eights and one thirty-second part of said premises.</p> <p>. 2d. There is error- in this; that it was ruled and decided by-said court of Common Pleas that the defendants in such original suit, had no, right to open the channel, and take the water through t,he same for the use of their mills, nor to divert the water from the main channel of the River, in the manner and to the extent, they did ; whereas in law they had that right.</p> <p>3d. There is error in this j that it was ruled and decided by said court of Common Pleas that the defendants in said original suit,, had no right to deepen any part of their channel, to make a reasonable use of the water through the same, or for the purpose of driving their mill; whereas in law they had that right.</p> <p>4th* There, is error in this; that it was ruled and decided by said court of Common Pleas, that the defendants in said original, suit,, had no right to take the water through their channel, from the. main stream, for the purposes and to the extent they did, though their said channel was an ancient channel; whereas in law, they had such right.</p> <p>5th. There is error in this; that said court of Common Pleas, .ruled and decided that the original plaintiffs had. a right to extend; their dam across the whole river, and to join it to the bank or shore owned by the defendants ; whereas in law, they had no such right.</p> <p>6th. There is error in this; that the said court of Common Pleas ruled and decided that the plaintiffs had a right to raise their new dam eight inches higher than their original dam was, and to maintain the same ; whereas in law, they had no such right.</p> <p>7th. There is error in this ; that said court of Common Pleas ruled and decided that the defendants in the original suit, had not a right to one half the water in the main stream of said river, and to take and use it in and through the channel aforesaid, for the purpose of turning their mill 5 whereas they had that right.</p> <p>8th. There is error in this; that said court of Common Pleas ruled and decided that the original plaintiffs had a right to erect and maintain the double grist-mill and other buildings and machinery described in the declaration; whereas they had a right to erect and maintain a singly grist-mill only.</p> <p>9th. There is error in this; that it was ruled and decided by said court of Common Pleas, that the original plaintiffs, being tenants in common with the defendants’ had a legal right to maintain their said action against the defendants aforesaid, in the form afore-said ; whereas in law they had no such right.</p> <p>The following diagram shows the relative positions of the places alluded to in the testimony.</p> <p> </p> <p>a a Plaintiffs’ mill and dam.</p> <p>b b Defendants’ mill and dam.</p> <p>1. As to the quantum of interest; the grantors of the original plaintiffs having no greater interest than their portion as heirs, no more than that quantity of estate passed by their deed,. One cannot grant a thing which he has not. Perk. Grant, 65 ; 4 Com. Dig. Grant, D.</p> <p>2. f If the original defendants had no right to open the channel and take the water, it was because thereby they infringed some right of the plaintiffs. But the plaintiffs show no title to the water. Their claim is virtually that of an easement in another’s land, which is against common right. 3 Dane’s Mr. 4 sec. 7. The ground of the action is the diversion. But this must be to some extent, and of some consequence, or it is damnum absque injuria¡ and no action lies. The plaintiffs alleged that less water came to their mill, by reason of the defendants’ using it as they did. Yet the same consequences would follow from extensive irrigation, and absorption of the water, though the surplus be returned to the natural channel before it passes the mill. Now for such an act the owner of the mill has no remedy. It is the consequence of the legal use of a natural right. Angelí on Water courses, 32, 140; Weston v. Al-* den, 8 Mass. 136 ; Palmer v. Mulligan, 3 Caines, 307 ; Platt v: Johnson, 15 Johns. 213.</p> <p>3 and 4. To these errors, they cited Angelí on Water courses, 27, note, 40, 127 ; 3 Kent’s Com. 354.</p> <p>5. Neither party has a right, where a stream is the boundary, to build his dam beyond the thread of the stream. If it be extended beyond this, the owner of the opposite bank may abate it as a nuisance. Angelí, 30; Wigford v. Gill, Cro. Elis. 269; Hodges v. Raymond, 9 Mass. 316; Jewell i). Gardiner, 12 Mass. 311. Here the license from Dr. Jones was limited till he should want the privilege or water for his own use ; and the defendants, having succeeded to his rights' might lawfully remove the dam from their own side of the river ; and therefore might employ half the water in the manner they did.</p> <p>6. The plaintiffs had no right to raise their dam, by the prin-' ciples of Sherwood v. Burr, 4 Day, 244, and Wan Bergen v. Van Bergen, 3 Johns. 282. Having done so, they themselves havé caused the water to flow through the defendants’ channel, of which they now complain.</p> <p>7. As long as the channel was not lowered deeper than the bed of the main stream, the defendants were in the exercise of a lawful right in clearing it as they did. In Curtis v. Jackson, 13 Mass., 507, the bed of the river was lowered, on the Needham side ; which Was not the case here.</p> <p>8. The plaintiff’s right, so far as it is prescriptive in its charac» ter, is limited to the mill and dam in their ancient state. But here they have erected a new double mill, requiring more water, and have raised their dam eight inches higher than before; thus destroy» ing their own ancient rights, and opening the stream to new competition. 3 Dane's Abr. ch. 71, art. 1, sec. 7.</p> <p>9. The action itself is misconceived. The law has gone no far» ther in the case of tenancy in common, than to allow trespass by one against his co-tenant for a disturbance of his possession, where the several occupation has been by agreement j Keay v. Goodwin, 16 Mass. 3 ; — or to give the remedy by action of account, for a due share of the profits. Jones v. Harraden, 9 Mass. 541; Brig* ham v Eveleth, 9 Mass. 538. . But trespass does not lie for entry and enjoyment of the common property. 4 Kent's Com. 366. Trespass on the case for disturbance of a right of common lies only against strangers.'</p> <p>cited these authorities. That the original defendants had no right to deepen the channel and divert the water, — Angelí, 30 ; Bealey v. Shaw¡ 6 East. 208 ; Sands v. Trefases Cro. Car. 575 ; Merritt v. Parker, 1 Coxe, 460 ; Colburn v. Richards, 13 Mass. 420 ; Beisselt v. Sholl, 4 Dali. 211 ; Cook v. Hull, 3 Pick. 269 ; Anthony v. Lapham, 5 Pick. 175 ; Angelí, 36, 57, 138, 149, 71, 181. That no proof of specific damage is necessary, in order to maintain this action, — Angelí, 50, 53 5 Hobson v. Todd, 4 D. &/• E. 71 ; Pindar v. Wadsworth, 2 East. 158. That erecting a double mill did not change the nature of the estate, or of their interest in the stream, — > 8 Dane's Abr.- 5 j Cotírel v, Luttrel, 4 Co. 86. And that tres»pass on the caso is the proper remedy, — -Co. Lit. 200 b ; 2 Bl. 'Com. 193; 3 Bl. Com. 221, 235 ; Angelí, 77.</p>

<p>In this case, which was a writ of entry on the seisin of the de"mandant, his title was derived from the extent of an execution against the present tenant. The proceedings of the officer and the appraisers appeared in the usual form. The tenant offered to prove hy the parol testimony of two of the appraisers, that in estimating the value of the land they deducted the value of the debtor’s wife’s possibility or right of dower, setting off to the creditor the worth of :such supposed incumbrance by one third more land ; the land being actually worth from eight hundred to a thousand dollars, but appraised at only six hundred and sixty two dollars, on that account.</p> <p>This evidence the Chief Justice rejected, but saved the point for the consideration of the Court, the tenant being defaultéd.</p>

This was an action of debt ón a bond dated Sept. 7, 1829, in the penal sum of six hundred dollars, conditioned thus : “ Whereas the said James Rodick, being one eighth part owner of the brig Trio, did, on the first day of September instant, give due notice to the said Hinckley and Thompson that he declined loading his part of said brig, or being in any manner concerned in a voyage now about to be commenced with said brig, and demanded security for his share of said brig in…

<p>Where land is conveyed in mortgage, and no separate obligation is given for payment of the money, a deed of quitclaim and release of the land, from the mortgagee to a stranger, is sufficient to assign the mortgage, and all his rights and interest under it.</p> <p>If such assignment be made before entry-for condition broken, and without consideration, — whether the creditors of the mortgagee can avoid it, they having no right to levy'on the land as his property, — guairc.</p> <p>Tender, to discharge a mortgage, must be made to him who has the legal estate, . and the right , to reconvey. Therefore where the mortgagee has assigned all his interest to a stranger, of which the mortgagor has actual or implied notice, the tender mustbemado to the assignee.</p>

This was an action of replevin, in which the writ was indorsed thus : — Phineas Harmon, by his attorney” ; — and on motion of the defendant in the court below, the writ was abated for want of a sufficient indorsement; it being admitted that it was made by Mr. Me Arthur, the plaintiff’s attorney, by virtue of his employment, as such, to commence the action, and without other authority. Whereupon the plaintiff appealed to this Court.

This action, which was assumpsit, for the price of a canal boat, was submitted to referees in the court below, under a rule in the common form.

By the private statute of March 17, 1830, (ch. 114,) the Courts of Sessions for the counties of Cumberland and Lincoln, were auv thorised to lay out a county road across the tide waters of JYew Meadows river, and “ running from the village in Bath to the village in Brunswick?’ provided, among other things, the inhabitants of those towns, at any legal meeting within two years from the passing of the act, should give their assent to its provisions.

<p>The lien created by the attachment of a right iu equity of redemption is not always limited to the amount of the judgment to be recovered; but may extend beyond that, to the whole amount for which the right may be sold by the sheriff.</p> <p>Therefore, where a right in equity, while under attachment, was sold by the mortgagor to a stranger ; after which judgment was recovered against the mortgagor, and the right in equity was duly sold on execution, by the sheriff, for a much greater sum than the amount of the execution; — it was held that the assignee of the mortgagor could not discharge the lien created by the attachment, by a tender of the amount of the judgment and costs; but must tender the whole sum which was paid by the purchaser at the sheriff’s sale.</p>

<p>This was an action, of assumpsit, brought by Descadillas, Mlaine and Company, merchants in Guadaloupe, against the charterer of the brig Pacific, for money lent to David, P. Shaw, master of the brig, at Point Petre, for the necessary purposes of the voyage.</p> <p>It appeared that the brig was sent from Portland to Point Petre with a cargo of lumber, consigned to the master, who was ordered to invest the proceeds, together with other funds of the owner which were then in Guadaloupe, in a return cargo of molasses. The captain, on his arrival at Point Petre, inquired of the collector of the port what would be the port charges and duties, and was informed that they would amount to about five hundred dollars. When he went to the custom house to clear out his vessel, he found that the amount of duties and charges was eight hundred dollars, the collector having erroneously computed them. Having retained in bis hands only the sum first named, the residue of his funds being invested agreeably to the orders of the owner, he applied to several masters of vessels and to two merchants to obtain money for the deficiency, offering to turn out molasses for the amount; but without success. He at length borrowed it of the plaintiffs, to whom ho offered a guaranty on part of his cargo, which they declined, but took his bill of exchange for the amount on the defendant, whose house they recognized as good. This draft was presented to tho defendant, who refused to accept it ; whereupon the plaintiffs sued Shaw as the drawer, and had judgment against him for the amount of the bill, interest, damages and costs; but not being able to obtain satisfaction, they brought this action against the defendant, charging him, on the common counts, for the same sum.</p> <p>Shaw testified that he received the money of Mr. Allaine, who took the draft payable to the plaintiffs. And Mr. Terasse, a merchant, testified that Allaine procured the money through Descadillas and Allaine ; which was the former name of the house to which two of the plaintiffs belonged, before the introduction of the third partner.</p> <p>The principal facts were testified by Shaw ; to whose competency the defendant objected ; but Weston J. before whom the cause was tried, overruled the objection. It was also objected by the defendant that the money did not appear to have been advanced by the plaintiffs, but by Allaine ; which the Judge left to the jury. It was further objected that the necessity for the loan was created by the folly and imprudence of the master, and that therefore he had no authority to bind his owner; and that no such uecessity could have existed, as he might have raised the morOy by a sale of part of the cargo. And it was contended that even if any implied contract had been raised between the parties, it was extinguished by the acceptance of a negotiable security for the sum borrowed.</p> <p>But the Judge instructed the jury that if there was a uecessity for further funds, though such necessity might have arisen from a want of due care and prudence on the part of the master, he had a right to hypothecate the whole or a part of the cargo to raise them ; and that where he might hypothecate, he might also borrow without it, on the credit of the owner. And a verdict being returned for the plaintiffs, the Judge reserved the questions raised at the trial for the consideration of the Court.</p> <p>argued that Shaw was inadmissible as a witness, because directly interested in the matter in controversy ; and that if interested both ways, yet the balance of interest was against the defendant. Emerton v. Andrews, 3 Mass. 253 ; Scott v. McLellan, 2 Greenl. 199 ; Jones v. Broke, 4 Taunt. •464 ; Gage v. Stewart, 4 Johns. 293. But if he were admissible, the defendant is not liable, the claim of the plaintiffs being extinguished by the negotiable security taken. Varner v. JVobleborough, 2 Greenl. 121 ; Exparte Hodgkinson, 19 Ves. 291. He also contended that the money was not- advanced by the plaintiffs, but by AUainc alone; and that there existed no necessity for the loan, as the master had property in his hands out of which the money could have been made.</p> <p>to the competency of the witness, cited Milward v. Ballet, 2 Caines, 77 ; Ilderton v. Atkinson, 7 J). E. 480. To the authority of the master in a case like the present; Abbot on Shipping, 107 note ; Evan v. Williams, 7 D. 8f E. 481 note ; 3 Kent’s Com. 125 note c ; Cupisino v. Perer, 2 Ball. 195. And that the remedy against the owner was not extinguished ; Gallagher v. Roberts, 1 Wash. C. C. R. 320 ; Parker v. The United States, 1 Pet. C. C. R. 262 ; Wallace v. Agry, 4 Mason, 342.</p>

The writ of error in this case was brought to reverse the judgment of a Justice of the peace, rendered in favor of Sanborn, clerk of a company of local militia, in an action of debt against the plaintiff in error, for a penalty for neglect of appearance at a company training, to which judgment exceptions had been filed by the original defendant, now plaintiff in error.

This was aii action of assumpsit, for not performing an award $ and the case was thus : One Abigail Furbish, a woman of feeble understanding, had lived sometime in the defendant’s family as a servant; and being afterwards chargeable to the town of Buckfield, as a pauper, the Overseers of the poor, in that capacity, made a demand against the defendant for the balance claimed as her wages, to be applied in payment of expenses already incurred by the town, and which might…

This was a bill in equity; in which the plaintiff set forth that one Jacob Daniels having made his will, which was exhibited, with the bill, and appointed the defendants his executors, died, leaving a widow, and Sally Daniels his daughter, and only heir, then a minor : — That the defendants were appointed guardians to the minor, who was a devisee in the will; and in that capacity represented to the Circuit Court of Common Pleas that it would be for her benefit to sell all…

<p>A second suit having been brought for the same cause of action, the attorney of record for the plaintiff in the first action is competent to testify that he received of the defendant the sum sued, for, and discharged him of the demand, notwithstanding the attorney also claims the money under an alleged assignment from the plaintiff to himself.</p>

This was an action of trespass, for taking and carrying away the plaintiff’s horse; and was tried before Parris J. upon the general issue.

<p>Á note, and the mortgage given to secure the payment of it, having beeri assigned to a third person When over-due, in an action on the mortgage, brought by the assignee against the mortgagor, it was held that the latter might set up iri defence against the Assignee any payments made by him to the original mortgagee, prior to notice of the assignment. .</p> <p>The mortgagee is in such case a competent witness for the assignee, being properly released. And where the release was of all demands, it was held that this * did not affect the validity of the assignment, which was absolute on its face, nor consequently, the plaintiff’s right to recover; though the witness testified that the assignment was in fact intended as collateral security for the payment of a debt due to the assignee; the legal operation of the release being to vest the mortgage absolutely in the assignee, and to discharge his claim of indemnify against the assignor.</p>

<p>Where the bond' given by a collector of taxes contained a recital that he was duly chosen, and was conditioned for the faithful discharge of his duty; it was held, in an action on the b.ond for not paying over monies collected, that the sureties could not controvert the legality of the meeting at which he was chosen, nor the validity of his election, nor the legality of the assessment of the taxes, antecedent to their commitment to him; nor any act of the town for ■ which they themselves would not be liable in consequence of their suretyship.</p> <p>If the return on a warrant fbr calling a town meeting does not show how the meeting was warned, it will be presumed, in the absence of other proof, that it was warned in the mode agreed upon by the town.</p> <p>It is no valid objection to such return, that it bears date on the day of the meeting.</p> <p>An article in the warrant for a town meeting, “ to see what measures the town will take to build” a certain bridge, “ or any matters and things relating thereto,” was held sufficient to authorise the raising of money for that purpose.</p> <p>A town, legally assembled in its corporate capacity, may lawfully raise money for parochial purposes, as well since the Stat. 1821, ck. 135, as before.</p> <p>In an action on the official bond of a collector of taxes, where the i>oint in issue was whether the money collected had been paid over to the treasurer or not, it was held that the treasurer, being released by the town, was a competent witness to disprove the payment.</p> <p>It is competent for a town, in its corporate capacity, by a vote of the majority, to release a debt, as well as to contract one.</p>

This action, which was assumpsit for money had and received, was submitted to the Court upon a case stated by the parties. The plaintiff, Charles Barrett, a citizen of New Hampshire, was duly appointed ‘in 'that State administrator of the estate of Charles Barrett, of the same State, deceased; in which capacity he held a promissory note given to the intestate by three persons in this county.

<p>M. made a lease to H. of a mill and other premises, with certain special agreements respecting repairs ; the rent for which, when ascertained, was agreed to be paid to S. to whom the premises had been mortgaged by M. — On the same day M. assigned the lease to one T. who afterwards drew an order on the lessee in favor ofS. for the payment of whatever sums might be found due for rent; which was accepted. Afterwards T. and if. entered into an arbitration of the various subjects of rent, expenses and repairs, pursuant to the statute; on which judgment was rendered in favor of T. for the balance found due by the award. — In a subsequent suit by S. against H, for the use and occupation of the premises, H. tendered the amount of this judgment; but it was held that S. was not bound by the account thus adjusted by the referees, it being res inter alios acta.</p> <p>Where the plaintiff, in assumpsit for use and occupation, alleged himself to be sole owner of the premises by assignment from M. and the defendant pleaded that M. was the legal owner, with whom he had entered into a rule of submission of the same subject-matter, pursuant to the statute on which judgment had been rendered against the defendant, the amount of which, with costs, he now tendered to the plaintiff as a subsequent assignee of M’s claim for rent; — the plea was 'held ill for want of a traverse of the plaintiff’s title as set forth in the declaration.</p>

This was an action of assumpsit upon a negotiable promissory note dated June 15, 1806, signed by the defendants and one Archibald Mchain, deceased, payable in lime years to One Charles Barrett, deceased, and by him indorsed in blank; The declaration contained one count for money had and received ; one for money lent; One upon the express promise of the defendants to pay the plaintiff as holder and assignee of the Bóte ; and another, added under leave to amend, upon their…

<p>The managing owney of a coasting vessel, let to the master on shares, and employ t ed in a distant place in. the wood-trade^wrote a letter to a third person, requesting him to u say to E. [the master of the vessel,] that he had better buy a load of good wood on the best terms he can, if he can get a deck load of hay on freight:” —which was held sufficient authority to the master to purchase' on. account of the owners, according to the terms of the letter.</p>

This was a writ of entry on the seisin of the demandants, and was tried before Parris J. upon the general issue.

<p>This was an action of the case for disturbing the plaintiffs’ ferry, by setting up a horse ferry at the same place; and it was submitted to the decision of the Court upon a statement of facts drawn up by a commissioner agreed upon for that purpose. The plaintiffs claimed the ferry as an ancient ferry, which they proved had been kept at the same place ever since the year 1762, and probably at an earlier period, as no evidence existed to tbe contrary. In that year the Court of Sessions granted a license to Samuel Harnden to keep a ferry at his landing in Woolwich. He then owned and occupied a large farm, extending far above and below the ferry. In 1769, a license was granted to his son, Brigadier Harnden, who was owner and occupant of the same farm. A few years afterwards the farm was sold to Theophilus Bradbury, Esq. whose tenants kept the ferry, but without license from the. Sessions, till 1788, when he sold the farm to Nathaniel Day and Zebulon Smith; the former of whom was licensed as a ferryman, in the same year. The plaintiffs derived title to the ferry-house, landing, and adjacent grounds, by divers intermediate conveyances from the grantees of Bradbury; and it appeared that licenses had been granted to their grantors and themselves in the years 1805, 1812, 1822 and 1826. No other licenses had been granted ; and none but owners of the ferry house had ever pretended a right to keep a ferry at this place. From the year 1788 it had always been called Day’s ferry.</p> <p>The defendant justified the erection of the works and the setting up of the horse ferry, under the private statute of March 30, 1830, constituting himself “ and his associates ” a corporation by the name of the Bath ferry company ; and authorizing the establishment of a horse ferry at the place in question ; and the appropriation of any landings and grounds necessary for that purpose, under the direction of the Sessions, paying to the owners such compensation as the Sessions might assess. The defendant’s petitition for this act was published in certain newspapers, but not in the manner required by Stat. 1821, eh. 166, in similar cases. He never associated any persons with him, under this statute; but carried its objects into effect, alone, with his own capital. No damages had ever been assessed by the Sessions. Some other facts were reported by the commissioner, respecting some conflicting claims of title to part of the ferry-landing, in a portion of which the defendant claimed a tenancy in common; which are here omited, as no decision was had upon this part of .the case.</p> <p>argued that the evidence was sufficient to show a title to the ferry by prescription; though the action was maintainable on possession alone. 2 Dane’s Jlbr. 685, 686, 687 ; Blesset v. Hart, Willes, 508 ; Tripp v. Frpnh, 4 D. E. 666. And he contended that the act of March 30, 183 0; was inoperative, because the defendant had never brought himself within its provisions; neither by taking associates, which the act by implication requires ; nor by causing compensation to be made, under an assessment by the Sessions. Canal Corners, v. The People, 5 Wend, 455 ; Ex parte Jennings, 6 Cowen, 518, It is also unconstitutional, as it goes to take private property from one citizen to give it to another; the horse ferry being merely a private franchise, and not a public work. 2 Kent's Comm. 275, 276 ; Bowman v. Middleton, 1 Bay, 252.</p> <p>cited Gayeity v. Bethune, 14 Mass. 49; 7 Pide. 37] ; 4 Com. Dig. tit. Grant. <7; Co. Bit. 131, a ; 2 Wend. 109 ; 2 Inst. sec. 281, 494.</p>

Bill in equity. The plaintiffs alleged that they were judgment creditors of Wheaton, who had conveyed his property to Prince, the other defendant, to defraud them of their due.

<p>This case, which was assumpsit, came up by exceptions taken to the opinion of Perham J. before whom it was tried in the court below.</p> <p>The plaintiff and one Matthews, being joint promissors in a note made payable to the defendant on the 20th day of April, 1829, the plaintiff delivered to the defendant, as collateral security, a note which he held against one Robbins, taking the plaintiff’s written promise “ to take all reasonable means to collect the same, and to account for what may be collected,” &c. Robbins had been for seven or eight years, and still was resident at Miramichi, in the British Province of New Brunswick. In March, 1830, the plaintiff complaining that no diligence had been used to collect the amount of Robbins, and the note given by the plaintiff and Matthews to the defendant being about to become due, the defendant agreed that if the plaintiff would obtain a new note for the amount, signed by Cutler and Harding, he would give up the Robbins note, and the note signed by the plaintiff and Matthews, the plaintiff agreeing to give up the obligation aforesaid. Such a note was accordingly procured and sent to the defendant by Matthews; who, however, did not carry the defendant’s obligation, and had no orders to ask for Robbins’s note; and the defendant accepted the note sent, and delivered up that of the plaintiff and Matthews. This was done in two or three weeks after the agreement in March. In June following, the defendant sent Robbins’s note to Miramichi for collection. And on the 1st day of December, 1830, the plaintiff tendered to the defendant his obligation, and demanded Robbins’s note ; which the defendant said he could not deliver, having sent it out of the country in June preceding, to be presented for payment. The action was brought upon the obligation or agreement of April 29, 1829 ; and the breach alleged was that the defendant had not accounted' for the note, but had refused to deliver it up when demanded, after having compelled the plaintiff to pay the principal debt. The defendant produced Robbins’s note at the trial, and offered it to the plaintiff, but it was not accepted.</p> <p>The defendant’s counsel requested the Judge to instruct the jury that he had a right to send the note to Miramichi at any time while his written promise remained in the hands of the plaintiff; that the plaintiff, to entitle himself to' the note at any time prior to its being sent away, was bound to have tendered to the defendant his said obligation; and that the defendant had a right to consider the contract as subsisting in force, till it was returned to him. This the Judge declined to do. But he instructed the jury that if they believed that the defendant agreed and promised to deliver up the note of Robbins, upon receiving that of Cutler and Harding in lieu of the plaintiff’s, then they ought to find for the plaintiff. But if they should not find such an agreement, they would inquire whether a reasonable time to obtain Robbins’s note and return it to the plaintiff, had elapsed from the 1st day oí December, 1830, when it was demanded, till the time of commencing the action; and if it had not, then to find for the defendant. On returning a verdict for the plaintiff, and being interrogated by thp Judge at the defendant’s request, they said they had found the agreement to deliver up the note, as stated ; and therefore had not inquired as to the reasonableness of the time.</p> <p>The defendant took exceptions to the refusal of the Judge to give the desired instructions.</p>

<p>The principal debtor in a promissory note conveyed to his surety a certain quantity of timber, by a writing in these terms; — !I In consideration that B. D. has become my surely to J. W. in the sum of three thousand dollars, I hereby assign to him all the timber cut or to be cut the present season at my mills,” &c. The surety himself also borrowed money of the same lender; and afterwards, by indorsement, assigned all his interest in that instrument to J. 0., whom he subsequently directed to apply the proceeds of the timber, first to the last mentioned debt of liis own, and the balance to the debt of three thousand dollars, due from his own assignor. Hereupon it was held: — That the instrument conveyed to B. Z>. all the timber described in it; — yet not absolutely; but in pledge and trust, to pay the debt for which he had become surety ; — and that he had no right to change the appropriation, by applying the proceeds to his own debt.</p>

This was a writ of error, brought to reverse the judgment of a Justice of the peace in a suit brought by the defendant in error as clerk of a volunteer militia company, against the plaintiff in error, for neglect to appear and do military duty therein at three several company trainings.

This was an action of debt, against the keeper of the gaol in Cumberland, for the escape of Stephen Lee, jun. an execution debt- or. The defendant pleaded first, the general issue, which was joined : Secondly, that Lee was enlarged by giving bond as the law directs for the liberty of the yard ; which plea was traversed, and issue joined oil the traverse.

<p>Assumpsit on a promissory note dated July 1, 1828, given by the defendant to the plaintiff, for six hundred and fifty-three dollars and forty-three cents, payable in nine months. At the trial, which was before Weston J. upon the general issue, the defence Set up was, that Under the circumstances in which the note was given, connected with subsequent facts, the defendant ought not to be holden beyond the amount paid and indorsed on the note. The admissibility of proof of these circumstances and facts was opposed by the plaintiff; but the objection was overruled; and the facts proved were as follows.</p> <p>The defendant was a wharfinger in Gardiner, to whom the plains tiff, living in Palmyra, had been in the practice of sending his lumber, of various kinds, for sale; which the defendant sometimes sold for cash, and sometimes on credit. Whenever he made sales, he credited the plaintiff with the amount; it being however understood that he was not to be debtor, therefor to the plaintiff, till he should actually receive the money. On the 10th of June, 1828, he sold to one Houdlette four hundred and seventy-eight dollars and fifty-six cents worth of the plaintiff’s lumber, taking his negotiable note for that sum, payable to the plaintiff in ninety days; the purchaser being then in good credit, and the timo comporting with the usage in such casos. For the proceeds of this sale, among others, the plaintiff was credited in the defendant’s books. On the day of the date of the note now in suit, the plaintiff, wishing to make arrangements to preserve his property from being sacrificed by his creditors, made a nominal sale to the defendant, of all his lumber then on the defendant’s wharf; for the amount of which, and of the sum credited as above to the plaintiff in the defendant’s books, including the amount sold to Houdlette, the note in controversy was given; it being then agreed by the parties that the defendant should sell the lumber, and collect what was due for what had already been sold, and account to the plaintiff for the same, in the same manner as if no note had been given $ and that his liability to the plaintiff should not be changed or affected by his giving the note. The plaintiff then indorsed the note of Houdlette, and delivered it to the defendant. It did not appear that the defendant took any measures for the collection of this note, though Houdlette continued in extensive business, till sometime in November, after its maturity ) when his solvency beginning to be suspected, the defendant actively adopted prudent measures to secure the debt, which, however, proved of no avail.</p> <p>The counsel for the defendant requested the Judge to instruct the jury, first, that the plaintiff living only forty or fifty miles from Gardiner, and being frequently at this place, the defendant was not hound to commence a suit against Houdlette, without an express request; secondly, that the plaintiff, knowing the person to whom the credit was given, was bound to give such direction to the defendant as ho wished him to follow: And thirdly, that the defendant, without such direction, would not bo guilty of negligence by omitting to pul the note in suit; especially at his own expense.</p> <p>These instructions the judge declined to give ; but he did instruct the jury that if, from the evidence, they were satisfied that the defendant might have procured payment of that note, or have secured it, by due diligence between its maturity and the time when he began to take measures to that end ; he had no claim on the plaintiff to be allowed its amount, which was finally lost. And the jury returned a verdict for the plaintiff; which was taken subject to the opinion of the court-upon the questions whether the desired instructions were properly refused ; and whether proper directions were given to the jury.</p> <p>A motion for a new trial was subsequently filed by the defendant, on the ground of newly discovered evidence.</p> <p>argued that the defence was untenable, as it depended on parol testimony to control a written contract, and to show that an absolute promise to pay on a certain day, was in fact merely a contingent undertaking to pay on the happening of an uncertain event. To which he cited Stackpole v. Arnold, 11 Mass. 27; Hunt v. Adams, 7 Mass. 518 ; 6 Mass. 519 ; Hanson v. Stetson, 5 Pick. 508 ; Rose v. Learned, 14 Mass. 154; Woodbridge v. Spooner, 3 B. A. 233; Free v. Hawkins, 1 Moore, 535 ; Hoarev. Graham, 3 Campb. 57; Richards v. Kilham, 10 Mass. 244 ; Preston v. Merceau, 2 W. Bl. 1249; Fitzhugh v. Runyon, 8 Johns. 375 ; Thompson v. Ketchum, ib. 189 ; Howes v. Barker, 3 Johns. 49S ; Deland v. Amesbury Man. Co. 7 Pick. 244. And that the consideration was sufficient; Amherst Academy v. Cowls, 6 Pick. 432; Howard v. Witham, 2 Greenl. 393; Train v. Gold, 5 Pick. 384.</p>

Assumpsit by the indorsee against the maker of a promissory note. The defence was infancy; and the case was submitted to the determination of the Court upon the following facts.

This was assumpsit for money paid; and came up by exceptions taken by the defendant to the opinion of Whitman C. J. in the court below. The plaintiff and defendant, with others, were sureties to the sheriff of this county, on a bond given by his deputy ; on which judgment was afterwards recovered for the deputy’s default. Execution was issued Aug. 27, 1829, and partially satisfied by levy on the goods of the principal debtor.

The principal question in this case was whether the trustee was chargeable. The facts, as disclosed, were these.

<p>This case came up by exceptions taken to the opinion of Ruggles J. in the Court below. The action was assumpsit on a promissory note, dated May 27, 1830, payable to the plaintiff, and signed by “ Swan, Woodcock 8/ Co.” The defendants, Swan, Woodcock and Pierce, were defaulted. Harding, the other defendant, appeared and pleaded that he never promised with them ; on which issue was joined.</p> <p>It appeared that the defendants had been served with regular notice to produce at the trial any and every written agreement between them to carry on business for the purpose of making paper, or for any other purpose ; and that in Avgust 1830, the defendant, Pierce, showed to a witness a paper signed by all the defendants, respecting an arrangement for carrying on a paper mill with economy, until they should alter it or adopt some other. The plaintiff then proposed to prove the contents of this paper by the witness ; to which the defendant, Harding, objected, until the paper were first proved to have been lost, or to be within his control. But the Judge overruled the objection ; and the witness stated the contents to be in substance these : that Woodcock should be foreman, and keep the books; and receive one dollar and twenty five cents a day, boarding himself; that Swan should be employed in the mill at one dollar a day, and board himself; that Pierce should make sale of the paper and collect stock, at the same wages, and his expenses be paid ; and that one Barrett was to act as engineer, at eighteen dollars a month, for three months.</p> <p>It further appeared that the note was given by Pierce for a bale of factory cloth ; that the stock for a paper mill is rag? ; but that factory cloth is a suitable article to barter for such stock. Mr. Harding is an attorney of this court, dwelling upwards of twenty miles from the paper mill.</p> <p>The witness, by permission of the Judge, who overruled the defendant’s objection to-the evidence, further testified that Pierce, at the time of showing him the paper, stated that the cloth for which the note was given went to the use of “ the concern.” He also testified that on the following day he stated to the defendant, Harding, the contents of the paper, and what Pierce had told him ; and that Harding did not deny having signed the paper, but said it did not make him answerable as a partner; and that he knew nothing of the cloth, nor whether it went to the use of the concern, or not. Hereupon the jury were instructed that Harding was to be regarded as a partner, andjiable for the payment of the note ; provided they were satisfied that the cloth went to the use of the concern; and that on that point they would consider Pierce's declarations as evidence against the defendants. And the verdict being for the plaintiff, the defendant, Harding, excepted to the admission of parol evidence of the contents of the .paper, and of Pierce's declarations respecting the cloth; and to the instructions given to the jury.</p> <p>to the inadmissibility of Pierce, or any parol evidence of the contents of the paper, cited 10 Mass. 332 ; Storer v. Batson, 8 Mass. 440; Tuttle v. Cook, 5 Pick. 414; Robbins tu Willard, 6 Pick. 464; 4 Johns. 250; Whitney v. Sterling, 14 Johns. 215 ; Gow on Partn. 210. And that in purchasing cloth he had exceeded his authority. Goto on Partn. 25, 26, 27. He also contended that the evidence, if admitted, did not prove a partnership ; but was merely a mode of ascertaining how each man should be paid for his services, and what services he should perform.</p> <p>cited Doak v. Swan al. decided in Waldo, July term, 1831, to the effect of the writing, as proving a partnership; and U. States Bank v. Binney, 5 Mason, 188, to its admissibility. And he contended that it constituted Pierce the general agent of the company for the procurement of stock; 3 Stark. Ev. 1073, 1074 ; Martin v. Root, 17 Mass. 227 ; Wood v. Brad-dick, 1 Taunt. 104; and that the mode adopted in this case, by barter of cloth for rags, was advantageous to the company, and within the scope of his authority. Emerson v. Providence Hat Man. Co. 12 Mass. 237 ; Odióme v. Maoccy, 13 Mass. 178 ; 15 Mass. 339.</p>

This action, which was debt on bond, was submitted to the decision of the court upon a case stated by the parties, as follows.— On the first day of March, 1830, the plaintiff sued out a writ of attachment against the defendant Saunders, by virtue of which he was arrested and committed to prison. The writ was returnable at April term.

This was an action of debt on a judgment, as rendered against the defendant alone by the Superior Court of Chatham county in the State of Georgia ; and brought originally in this Court ; but no proferí was made of the record.

<p>This was a scire facias brought in the name of the late sheriff of this county, to have further execution of a judgment rendered upon the bond of one of his deputies ; and was sued out in behalf of the sheriff, in his official bond to the Treasurer of the State.</p> <p>It appeared that the sureties of Adams had suffered for his defaults, occasioned by those of Gould, and that for their indemnity he had delivered over to them the bond of Gould, with a written assignment, not under seal, authorizing them to put it in suit, to apply whatever monies they might collect to their own use, until fully indemnified, and to “ discharge the execution.” These sureties, ten in number, constituted James Dinsmore, Esq. one of them, as agent for the whole, “ to defend all such suits as might be brought against them as the bondsmen of Adams, employ attornies, and pay such demands as he in his judgment should think advisable ;” agreeing to reimburse him for their proportion of such monies as he should expend, and for his services. This writing was not under seal. The bond of Gould was then put in suit, and his property attached sufficient to satisfy the first execution which was ultimately awarded upon the judgment ; for which property one David Gilman gave his receipt to the attaching officer. Upon the issuing of that execution, Gilman gave his promissory note to Dinsmore for the amount; taking his assignment under seal, in these terms : — “ In consideration of a note signed by David Gilman for the sum of ‡333,20, payable in six months and interest, I hereby assign over and transfer to the said Gilman a judgment obtained in the Supreme Judicial Court in and for the county of Somerset, June term 1828, in favor of Benjamin Adams against Joshua Gould and others ; hereby authorizing the said Gilman to collect the same for his own use and benefit, without recourse to me or to said Adams for the payment of debt or costs. Witness my hand and seal. James Dinsmore, agent for Adams and bondsmen.” On the back of this instrument Gil-man executed a regular release of the judgment to Gould and his bondsmen.</p> <p>The defendants relied upon these transactions as constituting a discharge of the entire judgment "rendered for the penalty of the bond. But it was insisted on the other side that the sureties of Adams had no authority to transfer the judgment to Gilman ; and that if they had, yet they in fact had only assigned to him the amount for which execution had then been awarded. The jury were instructed by Weston J. before whom the cause was tried, that the defendants were not discharged, if they were satisfied that only the amount for which execution was obtained, was assigned, or intended to be assigned. And they found for the plaintiff; the points raised at the trial being reserved for the consideration of the Court.</p>

<p>This cause, which was assumpsit for money had and received, came before the Court upon exceptions taken by the defendant to the opinion of Ruggles J. before whom it was tried in the court below.</p> <p>The plaintiff, at the trial below, offered his son E. H. Judkins, as a witness; who testified that in October, 1828, he let the defendant have a promissory note against one Young for something more than twenty dollars, which he had received for the price of a yoke of the plaintiff’s oxen, sold by himself to Young; that the defendant paid him for part of the value of the note, leaving twenty dollars still due ; which they agreed should be accounted for or allowed in part payment of a larger sum due from the plaintiff to the defendant, by promissory note, which became due in January following. He also testified that he acted in the whole matter as the agent of the plaintiff; that the oxen were sold to Young by the plaintiff’s directions, in order to provide funds to meet the payment of his note due to the defendant; that the capacity in which he acted was known to the defendant; and that the latter gave him a receipt for the twenty dollars, which he had delivered over to the plaintiff. This receipt being called for, was produced; and ran thus : “ Received of E. H. Judkins twenty dollars in a note against Samuel Young, and agree to account to him for the same in sixty days.” It appeared that the defendant had subsequently demanded and received of the plaintiff the full amount of his note, without deducting the twenty dollars.</p> <p>The counsel for the defendant objected to the admission of this testimony to vary or control the terms of the receipt. But the Judge admitted it; and instructed the jury that if they believed that the defendant knew that the note against Young was the property of the plaintiff, and that E. II. Judkins was his agent; and if they also believed the testimony of the witness respecting his agreement with the defendant, the plaintiff was entitled to recover. To which the defendant excepted ; the jury having found for the plaintiff.</p> <p>II. Warren, in support of the exceptions, argued that the receipt was, in effect, a promise to pay money; not a mere acknowledgment of having received it; but an agreement to account for it by a fixed day ; and that it was plain and unambiguous. The testimony of the plaintiff’s son went to contradict this written contract, and destroy its effect, by substituting another contracting party, and thus depriving the defendant of his right of set off; in violation of a well settled rule of law. Stac/cpole v. Arnold, 11 Mass. 27 ; Mayhew v. Prince, ib. 54; Arfridson v. Ladd, 12 Mass. 173 ; Delande v. Amesbury Man. Co. 7 Pick. 244; Brown v. Gilman, 13 Mass. 161 ; Small v. Quincy, 4 Greenl. 497,</p> <p>cited Lyman v. Clark, 9 Mass. 235; Ford v. Clough, Lincoln, May term, 1832; Wilkinson v. Scott, 17 Mass. 249.</p>

This cause came up by exceptions filed by the plaintiff to the opinion of Ruggles J. iu the court below. It was an action of the case against the late sheriff of the county of Lincoln, for the default of his deputy in not serving nor returning an execution, issued on a judgment recovered in the Common Pleas in this county. The defendant pleaded the general issue, and the statute of limitations applicable to actions against sheriffs for this cause.

This was assumpsit for work and labor; and it came up by exceptions taken by-the defendant to the opinion of Whitman C. J. before whom it was tried in the court below.