Volume 9 — Maine Reports

At the trial of this cause* which was an action of replevin, the plaintiff offered one Daniel A. Cressey as a witness; who was objected to, and excluded, because he was liable to pay costs, as the indorser of the writ. The plaintiff then offered to deposit with the clerk, for the use of the defendants, a sum of money amply sufficient to pay all the costs which they might recover ; and thereupon moved for the admission of the witness.

<p>This was an action of trespass, for taking and carrying away fifteen tons of the plaintiff’s hay. It appeared that the plaintiff, by his agent, Otis Briggs, had made an agreement in April 1828, with one Waterman, for the usp and occupation of the plaintiff’s farm in Watezville college township, by which Waterman was to have the use and improvement of the farm for one year certainly,, and, if the plaintiff should agree to it,, for the term of five years ; for the rent of seventy tw,o dollars per annum j, and was to cut the hay and put it into the barn upon the farm, there to remain the property of the plaintiff, till the rent should be paid. A memorandum of the agreement was made, of the following tenor : — “ No. 3, Old Indian Purchase, April 11, 1828. Having this day made an agreement with Otis Briggs, agent of Calvin Bailey, for the Webster place, so called, and not having time to execute a formal lease, I hereby agree that all the hay that may be cut on said farm shall be holden by said agent, as security, till payment of the rent, seventy two dollars per year shall be paid. (Signed) Thomas Waterman.” The hay cut in 1828 was accordingly put into the barn as agreed; and in August of that year it was seised by the defendant, by virtue of an execution in his hands against Waterman. The agent of the plaintiff testified that he had never been upon the farm since making the agreement, till after the hay was taken in execution and advertised for sale ; nor had he taken possession of the hay before that time; but on the day of sále he went to the barn, and wrote a caution on the advertisements of the officer, forbidding the sale, the hay being the property of the plaintiff; but Waterman was not present to make any formal delivery of the hay. He also testified that he, should not have let the farm to Waterman without some security for the. rent, he being- a man of no property.</p> <p>Upon the evidence adduced, of which the foregoing is all that is material to the case in the view of it subsequently taken, Parris J. ordered a nonsuit, subject to the opinion of the court upon the question whether'such possession and right to the hay was disclosed as entitled the plaintiff to maintain the action.</p> <p>argued that it was a tenancy at will in Waterman, whose possession was that of the lessor. Starr v. Jackson, 11 Mass. 119. The writing was amere pledge of the hay, which was never out of the lessor’s control. The grass was part of the freehold, growing-without labor ; 2 Salk. 160; 1. Cruises-, Dig. 268; it was not included in the meaning of emblements, which go to the executor ; Co. Lit. 55, 56, 116 ; and it was delivered at the place named in the contract, which was a sufficient delivery to the party, though he was not present. Atkins v. Bar-wick, 1 Stra. 165 ; Y'elv. 164. All was done which the nature of the case would admit, to give actual possession of the hay to the lessor. Beaumont v. Crane, 14 Mass. 400.</p> <p>cited Butterfield v. Baker, 5 Pick. 522; Waite, appellant, 7 Pick. 100; Stewart v. Doughty, 9 Johns. 108 ; Smith v. Putnam, 3 Pick. 221; Lickbarrow v. Mason, 6 East. 27; Heywood v. Warren, 4 Campb. 291 ; Parks v. Hall, 2 Pick. 212,</p>

This was a writ of error brought to réverse a judgment of the Court of Common Pleas rendered Upon a report of referees appointed pursuant to the statute, made in favor cif the defendant id error, who was the original claimant. The errors assigned were all special; but the judgment was reversed for an error not assigned; which appears in the opinion of the Court, delivered by

It appeared from the record sent up, that the clerk was duly appointed, and took the oath of office before the captains who certified his appointment on the back of his warrant, and that he had subscribed the oath of office before him, omitting to certify that he had. taken it.

In this case, which was an action of trespass quare clausum fre-git, brought before a Justice of the Peace, the defendant pleaded that the close was the soil and freehold of another, under whom he justified ; and the cause being thereupon carried into the Court of Common Pleas, pursuant to the statute, it was brought up thence by demurrer, with the usual reservation of leave to waive the demurrer and plead anew in this Court.

Tills was a review of- an action of replevin for 166 mill-logs, originally sued out by Fiske &/■ Bridge against Dwinel. It appeared, at the trial, that the logs were cut by Dwinel, on the land of Fiske and Bridge, without license; the lines of which land he previously well knew, and was thus a wilful trespasser.

This was an action of debt on a bond given for the enlargement of Gregory, the principal defendant, who was committed to gaol on an execution in favor of the plaintiff.

This was an action of the case against the late sheriff of this county, for the ¿Hedged default of one Fillebrown, his deputy, in releasing certain personal property by him attached at the suit of the plaintiffs. It was tried before the Chief Justice, who reported the following facts. On the 24th day of March, 1826, Ira Fish, George D. Varney and Isaac Wendall, entered into partnership in the lumber business.

In this case, which was an action of trespass quare clausum fregit, the only question was, in what manner the side lines of the lots of land fronting on tide waters, were to be extended from the upland to low-water-mark, under the Colonial Ordinance of 1641. The facts being agreed, it was submitted in vacation, without argument, by Oilman for the plaintiff, and Abbot for the defendant.

<p>A. and B. made a contract for the sale of a chaise, by which it was agreed that B. should give his notes for the price, payable in twelve months, and in the mean time should keep possession of the chaise, and use it at his pleasure ; but that the property should remain in A. till the notes were paid. B. accordingly gave his notes and received the chaise ; which he used as h¡3 own, and afterwards sold, before the year expired, to C. who had 'in fact no knowledge of the terms of the contract. After the expiration of the year, and after C. had used the chaise some months, with the knowledge of A. and had subsequently sold it, A. brought an action of trover against him for the chaise ; and it was held that the action might well be maintained ; there being on the párt of A. no fraudulent delay or acquiescence.</p>

This case, which was debt on a gaol bond, came up by exceptions filed by the plaintiff to the opinion of Whitman C. J. in the Court below. ' It appeared that after the writ was made and placed in the hands of an officer for service, Mr. Fish, the surety in the bond, came to the office of Mr. Williamson, the plaintiff’s attorney, and proposed payment. The latter accordingly cast the amount of the debt, for which he wrote and signed a receipt, on the back of the bond.

This was a qui tarn action, to recover a penalty únder the Stat--ute of March 9, 1832, (Private Statutes ch. 283.) regulating the survey of lumber in the county of Penobscot, for surveying a quan--tity of lumber, the defendant not being the surveyor general nor one of his deputies mentioned in that act.

This was a writ of review, sued out as of right, under St at. 1831, ch. 502; in a cause in which Treat was the original defendant, in whose favor a verdict had been rendered in the Court of Common Pleas; but, on appeal, Ingalls, the original plaintiff, had obtained a verdict in this Court, at October term, 1830.

<p>The equitable claim of a tenant, to the value of his improvements or betterments, made on lands held by possession only, arising under the statutes of 1821, chapters 47 and 60, may be conveyed by parol, accompanied by an actual transfer of the possession to the purchaser; it being, not an interest in the land itself, but merely an equitable right to compensation for the improvements.</p>

<p>This was an action of the case against the late sheriff of this county, to recover a sum of money, collected by Simeon Bradbury, one of his deputies, on an execution in favor of the plaintiffs, together with interest thereon at the rate of thirty per cent. The execution issued Oct. 30, 1826, and was returnable Jan. 30, 1827; but had never been returned. The money was received by the deputy JYov. 21, 1826, and was demanded of him Feb. 19, 1830. The present action was commenced Feb. 12, 1831. The question was whether the suit was commenced “ within four years next after the cause of action,” within the meaning of Stai. 1821, ch. 62, sec. 16; and a default was entered, subject to the opinion of the Court upon this point.</p> <p>submitted a written argument in the last vacation, in which they relied on the statute as raising a distinct and substantive cause of action, upon the fact of the nonpayment of the money upon demand. The officer, they contended, was not bound to have the • money at court upon the return day of the execution ; nor to carry it to the creditor. It was his duty merely to keep it till demanded. Wakefield v. Lith-gow, 3 Mass. 249; Wilder v. Bailey, ib. 295; Barnard v. Ward, 9 Mass. 269. The present cause of action may exist before the return day of the execution; and it has no connexion with an action for not making a return. The latter omission may be justifiable by the casual loss or destruction of the precept, and yet the officer be liable to the present suit. This action arises only upon demand actually made. To say that it is merged in the action for not returning the execution, is to say that it was merged three years before it existed; and goes virtually to repeal the wholesome restraints enacted by the statute on which this action is founded.</p> <p>cited Weld ». Bartlett, 10 Mass. 470; Young v. Hosmer, 11 Mass. '89; Miller v. Adams, 16 Mass. 456 ; Mather v. Green, 17 Mass. 60.</p>

This was replevin of a boat. Plea, property in one Wilder, and not in the plaintiffs; and issue on the plaintiff’s property. At the trial it appeared that in the year 1829 the plaintiff, being then the owner of the boat, sold it to one Harrington, giving him a bill of sale, for eighty dollars; of which thirty were paid down by the purchaser, who gave his note for the remaining fifty, ten of which were soon afterwards paid.

This was an action of assumpsit by Mason Shirley, the indor-see of an order or bill of exchange drawn Sept. 18, 1826, by one Lesner, on the defendant, in favor of one Moses Shirley, accepted generally by the defendant, and indorsed by the payee to the plaintiff. No time of payment was mentioned.

<p>Where one of Lvo joint promisees in a negotiable note, having it in his possession, was requested by the other to sell it and apply the proceeds to their common benefit, and he sold it accordingly; but the other refused to indorse it, being called upon for that purpose ; after which the seller indorsed it in their joint names; — it was held that the purchaser could not maintain an action on the ‘ note as indorsee, the-authority of the seller'being revoked by the refusal.</p>

This was a special action of the case, in assumpsit, for the labor, materials and money expended in making a certain road laid out by the Court of Sessions for the county, through the township No. 9, in the fourth range north of Bingham’s Penobscot purchase, being part of a road leading from the north line of Baring to Lewey’s island, and thence to the BasJcahegan carrying-place ; with a count for the purchase-money paid for the same township, at a sheriff’s sale made under…

This action was assumpsit, upon a special contract for the making of a county road through Baileyville and the plantation numbered seventeen ; the writ containing also the common counts. It was served by the Sheriff of the county, instead of a coroner; for which cause the defendant moved the court to quash it; but the motion was overruled by Weston J. before whom the cause was tried, in order first to examine the merits. At the trial, the following facts were proved.

This action was assumpsit, on an order for fifteen hundred feet of boards, drawn by the defendant, on one Estes, in favor of the plaintiff, and not accepted. At the trial in the court below, to excuse the want of notice to the defendant of the dishonor of the draft, the plaintiff offered to prove the declarations of Estes, made at the time when it was presented to him for acceptance, that he had no funds of the defendant’s in his hands.

<p>Memorandum. — Weston J. was not present during this term.</p> <p>Where the sum justly .due to the plaintiff was moi;e than a hundred dollars, but the defendant tendered and brought into the court' below a lesser sum; and a verdict was entered, pro forma, in his favor, and the plaintiff brought the cause up by appeal; after which the plaintiff took out of court the money tendered; and on trial in this court the jury found the sum tendered insufficient, and ren-. dered a verdict for the plaintiff for the deficiency, being less than a hundred dollars; — it was held that the case was not within the Stat. J829, ch. 444, sec. 1, regulating appeals; and that the defendant was not entitled to a separate judgment for his costs.</p> <p>Where money is tendered and brought into court, and the plaintiff takes it out, but proceeds for more ; and the jury find the sum tendered insufficient; their proper course is to return a verdict for the whole sum due, without regard to the sum deposited with the clerk, which latter sum the court will deduct, and render judgment for the residue.</p>

<p>frinco the statute of 1833, ch. 514, abolishing special pleading, the general issue, with a brief statement of soil and freehold, in an action of trespass quart clausum fregit, brought before a justice of the .peace, is sufficient to bar any further proceedings before him, except the taking of a recognizance to prosecute the plea in the Court of Common Pleas ; this statute having virtually repealed so much of stat. 1821, ch. 76, sec. 10, as requires that in such cases the title to «theioews in quo should be specially pleaded.</p>

This action, which was assumpsit, was commenced Feb. 17, 1830.

This was an action for money had and received, and was tried before Parris J. upon the general issue.

<p>.a execution debtor being within the prison limits, under a statute bond, his friends entered into a collateral agreement for payment of the demand ; whereupon the creditors gave him a receipt, not under seal, in full satisfaction of the judgment and execution. In an action afterwards brought upon the bond, this discharge was held a sufficient bar, though the creditor had not been able to derive any benefit from the agreement.</p>

This was an action of assumpsit for the recovery of twenty-four dollars for money advanced to the defendant, and thirty dollars for labor performed for him ; and it came before this court upon exceptions filed-by the plaintiff to the opinion of Ruggles J. before whom it was tried in the court below.

This case was assumpsit for goods sold, and was tried before Whitman C. J. in the court below, upon the plea of the statute of limitations, to which the plaintiff replied by alleging fraud in the defendant.

The facts in this case, which came before the court upon a case stated by the parties, will be found in sufficient detail in the opinion of the Court. maintained his right to priority of satisfaction from the priority of contract, it being against the old company; from priority of attachment; and from the express agreement of the parties among themselves that the new company should pay the debts of the old.

This was an action of trespass brought by Abigail Dockham, for taking three tons of hay; and it came up by exceptions taken by the defendants, to the opinion of Whitman C. J. before whom it was tried in the court below. It appeared that the defendants, in May, 1831, made a parol lease of their farm to the plaintiff’s husband for one year, he agreeing to deliver to them from the farm, two tons of English hay,-and ••a quantity of potatos, for the rent.

This was an action of dower, which was submitted to the court upon a case agreed by the parties. It was conceded that the de-mandants were entitled to judgment, if the wife had been legal-]y divorced from her former husband, lo whom she was married May 24, 1809, in Massachusetts, where they then dwelt; after which they resided in this county; from which the husband departed, deserting his wife, and took up a residence in North Carolina, where he married another.