t.s:rf}. 
 
 Cornell University Law Library 
 
 The Moak Collection 
 PURCHASED FOR 
 
 The School of Law of Cornell University 
 
 And Presented February 14. i893 
 
 IN nenoRY of 
 
 JUDGE DOUGLASS BOARDMAN 
 
 FIflaT DEAN OF THE SCHOOL 
 
 By his Wife and Daughter 
 A. M. BOARDMAN and ELLEN D. WILLIAMS 
 
3 1924 103 377 531 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924103377531 
 
SUPPLEMENTAL DIGEST 
 
 OF 
 
 THE DECISIONS 
 
 OF THE 
 
 SUPREME JUDICIAL COURT 
 
 OF THE 
 
 (■■■ A '^ \ 
 
 STATE OF-MJlINE, 
 
 CONTAINED IN 
 
 VOLUMES FOETY-FGUE TO FIFTY-SIX (BOTH INCLUSIVE), 
 
 OF THE 
 
 MAINE EEPOETS. 
 
 By WILLIAM WIRT VIRGIN. 
 
 PORTLAND: 
 
 LORIN-G-, SHORO? & HARMlOIir. 
 
 1870. 
 

 Entered according to Act of Congress, in the year 1870, by 
 
 LOEING, SHOEO? & HAEMON, 
 In the Office of the Lihrarian of Congress, at Washington. 
 
 JS. THTOSTOH AKD CO., PEIHTEES. 
 
PREFACE. 
 
 As the resolve of the Legislature -v^ch induced the preparation of 
 this volume contemplated but a "supplemental digest," the under- 
 signed felt obliged, in its general character and arrangement, to follow 
 the original work of Mr. Eastman, leaving the task of preparing a 
 Digest proper of the whole reports as a bequest to some legal virtuoso 
 who may aspire to such a labor of love. W. W. V. 
 
 NoKWAY, Oct. 1, 1870. 
 
JUSTICES OF THE SUPREME JUDICIAL COURT. 
 
 cHjEF .rusiipEa. 
 PRENTISS MELLEN, LL. D., Portland. 
 
 Appointed July 1, 1820; term of office expired by limitation, at seventy 
 
 years of age; Oct. 22, 1834. 
 NATHAN WESTON, JB., LL. D., Augusta. 
 
 Appointed Oct. 22, 1834; term of office expired Got. 21, 1841. 
 BZEKXEI; WHITMAN, LL. D., Portland. 
 
 Appointed Deo. 10, 1841; resigned Oct. 23, 1848. 
 ETHER SHEPLBY, LL. D., Portland. 
 
 Appointed Oct. 23, 1848; term of office expired Oct. 22, 1855. 
 JOHN SBAELE TENNEY, LL. D., Norridgewook. 
 
 • Appointed Oct. 23, 1855; term of office expired Oct. 22, 1862. 
 JOHN APPLETON, LL. D., Bangor. 
 
 Appointed Oct. 24, 1862; reappointed Sept., 1869. 
 
 ASSOCIATE JUSTICES. 
 
 WILLIAM PITT PREBLE, LL. D., Portland. 
 
 Appointed July 1, 1820; resigned June 18, 1829. 
 NATHAN WESTON, Jk., LL. D., Augusta.' 
 
 Appointed July 1, 1820; appointed Chief Justice Oct. 22, 1834. 
 ALBION KEITH PARRIS, Portland. 
 
 Appointed June 25, 1829; resigned Aug. 20, 1836. 
 NICHOLAS EMERY, Portland. 
 
 Appointed Oct. 22, 1834; term of office expired Oct. 21, 1841. 
 ETHER SHEPLBY, Saoo. 
 
 Appointed Sept. 23, 1836; appointed Chief Justice Oct. 23, 1848. 
 JOHN SEARLE TENNEY, Norridgewock. 
 
 Appointed Oct. 23, 1841; appointed Chief Justice Oct. 23, 1855. 
 SAMUEL WELLS, Portland. 
 
 Appointed Sept. 28, 1847; resigned March 31, 1854. 
 JOSEPH HOWARD, Portland. 
 
 Appointed Oct. 23, 1848; term of office expired Oct. 22, 1855. 
 RICHARD D. RICE, Augusta. 
 
 Appointed May 11, 1852; resigned Dec. 1, 1863. 
 JOHN APPLETON, Bangor. 
 
 Appointed May 11, 1852; appointed Chief Justice, Oct. 24, 1862. 
 JOSHUA W. HATHAWAY, Bangor. 
 
 Appointed May 11, 1852; term of office expired May 11, 1859. 
 
VI JUSTICES OF THE SUPKEME JUDICIAL OOUET. 
 
 JONAS CUTTIKG, Bangor. 
 
 Appointed April 20, 1854; reappointed April 20, 1861, and April 20, 1868. 
 SETH MAY, Winthrop. 
 
 Appointed May 8, 1855; term of office expired May 7, 1862. 
 WOODBTJEY DAVIS, Portland. 
 
 Appointed Oct 10, 1855; removed April, 1856; reappointed Feb. 25, 1857; 
 
 resigned Dec, 1865. 
 DANIEL GOODENOW, Alfred. 
 
 Appointed Oct. 10, 1855; term of office expired Oct. 9, 1862. 
 EDWAED KENT, Bangor. 
 
 Appointed May 11, 1859; reappointed May 11, 1866. 
 CHAELES W. "WALTON, Auburn. 
 
 Appointed May 14, 1862; reappointed May 14, 1869. 
 JONATHAN G: DIOKEESON, LL. D., Belfast. 
 
 Appointed Oct. 24, 1862; reappointed Sept., 1869. 
 EDWAED POX, Portland. 
 
 Appointed Oct. 24, 1862; resigned March, 1863. 
 "WILLIAM G. BAEEOWS, Brunswick. 
 
 Appointed Marcb 27, 1863; reappointed March, 1S70. 
 CHABLES DANFOETH, Gardiner. 
 
 Appointed Jan. 5, 1864. 
 ETTFX7S P. TAPLBY, Saco. 
 
 Appointed Dec. 21, 1865. 
 
KEPOETEES OE DECISIONS. 
 
 SIMON GEEBNLBAI", Portland. 
 
 Appointed Sept. 2, 1820; third term of office expired June 24, 1832. 
 JOHN FAIEFEELD, Saco. 
 
 Appointed June 27, 1832; resigned Sept. 30, 1835. 
 GEOEGB W. PIERCE, Portland. 
 
 Appointed Oct. 8, 1835; died Nov. 15, 1835. 
 JOHN SHBPLEY, Saco. 
 
 Appointed Feb. 12, 1836; removed March 5, 1841. 
 JOHN APPLETON, Bangor. 
 
 Appointed March 5, 1841; removed Jan. 22, 1842. 
 JOHN SHEPLBT, Saco. 
 
 Reappointed Jan. 22, 1842; second term of office expired Jan. 22, 1850. 
 ASA EEDINGTON, Augusta. 
 
 Appointed Jan. 16, 1850; term of office expired Jan. 16, 1854. 
 SOLYMAN HBATH, -Waterville. 
 
 Appointed Feb. 28, 1854; removed Feb. 7, 1856. 
 JOHN MILTON ADAMS, Portland. 
 
 Appointed Feb. 7, 1856; removed Jan. 29, 1857. 
 TIMOTHY LTJDDEN, Turner. 
 
 Appointed Jan. 29, 1857; died , 1859. 
 
 WALES HTJBBAKD, Wiscasset. 
 
 Appointed May 12, 1859; resigned his second term Feb., 1866. 
 WILLIAM WIET VIRGIN, Norway. 
 
 Appointed Feb. 27, 1866; reappointed March 1, 1870. 
 
EEEATA. 
 
 Page 82, 14th line, for Fuller read Tuttle. 
 
 " 164, 14th " " Same read Ham. 
 
 " 16f, 8th " " AlfroieaAAlford. 
 
 " 170, 28th " " Lun. 321, read im. 351. 
 
 " 227, 26th " « Libby lead Sibley. 
 
 " 250, 30th " " 529 read 229. 
 
 " 319,39th " oAA Dyer ^. Walker, Tjj.lOi. 
 
 " 352, 18th " for XLvn. read XLTi. 
 
TABLE OF CASES, 
 
 [names op PIAESTTIPE'S AEEANGBD ALPHABETIOAILT] 
 
 WITH EBFBEBNCE TO THE VOLUME AKD PAGE OF THE EBPOETS, 
 AND THE TITLES AiJD PAGES OF THE DIGEST. 
 
 A. 
 
 51, 575. Abbott v. Abbott, Deed, 140, 144. Evidence, 201. Law, &c., 307 
 
 Seisin, <fec., 479, 480. Trespass, 516, 518. 
 
 53, 356. Abbott v. Abbott, Deed, 141, 145. 
 
 54, 540, Abbott v. Bangor, Tax, 501. 
 
 56, 310. Abbott v. Bangor, Statute, 495. Tax, 501, 503, 505. 
 
 55, 530. Abbott v. Bradstreet, Bailment, 50. 
 55,580. Abbott, Adm'r,Pet'r in 
 
 Equity, Trust, 532, 533. 
 
 49, 319. Abbott v. Jacobs, Officer, 371, 374. 
 
 47, 177. Abbott v. Joy, Evidence, 204, 207, 212. Fraud, &o., 244. 
 
 48, 44. Abbott v. Marshall, Estoppel, 188. Evidence, 200, 201. Fraud, &c., 
 
 249. Practice, 418. 
 53, 158. Abbott v. Norton, Forcible Entry, &c., 242. 
 
 52, 584. Abbott v. Co. of Penob- 
 
 scot, Costs, 119. 
 
 48,212. Adams V. Goddard, Lease, 310. Personal Property, 400. Trover, 521. 
 
 51, 480. Adams v. Hodgkins, Constitutional Law, 97. Marriage, 331. 
 
 46, 516. Adams v. Larrabee, Tax, 503. 
 
 51, 497. Adams v. Morse, Custom, &o., 127. Deed, 138. 
 
 51, 480. Adams v. Palmer, Constitutional Law, 97. Divorce, 154. Dower, 
 
 162. Marriage, 331. 
 51, 480. Adams v. Schwartz, ' CoustitutionalLaw, 97. Marriage, 331. 
 
 49, 362. Adams v. Stevens, Equity, 167, 18a Mortgage, 342. 
 44, 90. Alford v. MoNarren, Equity, 167. Practice, 431. 
 
 51, 585. Alger v. Boston Loco- 
 
 motive Works, Attachment, 41. 
 
 49,346. Allen V. Archer, Assessor, 27. Practice, 431. School District, 475. 
 
 Tovm, 511. Trespass, 515, 518. 
 
 47, 287. Allen v. Avery, Bills, &o., 62. 
 
 55, 113. AUen v. Delano, Sale, 471. 
 
 50, 253. Allen v. Hall, Cases, &o., 84. Exceptions, 219. Law, &c., 308. 
 
 Partition, 380. 
 
 50, 371. Allen v. Hooper, Evidence, 204. Husband, &c., 260. Married 
 
 Woman, 333. 
 
 52, 278. Allen v. Tinker, Arbitration, 22, 25. 
 
 53, 446. Alley v. Edgeoomb, Bounty, 77. Town, 510, 512. 
 
 54, 438. Amer. Bank v. Cooper, American Bank, 19. 
 
 56, 167. Amer. Bank v. Wall, Set-off, 481. 
 
 51, 602. Ames v. Smith, Soldier's Aid, 489, 490. 
 
 49,381. Ames V. Taylor, Actions, &o., 8. Execution, 234. Officer, 371,372. 
 
 50, 161. Anderson v. Boggs, Deed, 135. Mortgage, 345. 
 
 48, 335. And. K. E. Co. v. Au- 
 
 burn Bank, Pledge, 410. Trover, 521. 
 
 48, 26. Andrews V. Marshall, Actions, &c., 7. Fraud, &o., 244, 247, 248. Mort- 
 gage, 359. 
 
TABLE OF CASES. 
 
 49, 392. 
 
 52, 417. 
 
 56, 515. 
 47, 152. 
 
 49, 561. Arnold v. Mower, 
 
 And. & Ken. E. K. Co. 
 V. And. R. K. Co., 
 
 A^d. & Ken. E. R. Co. 
 
 V. And. E. E. Co., 
 Angler v. Smalley, 
 Annis v. Gilmore, 
 
 45, 399. Atkins v. Wyman, 
 56, 546. Atkinson v. Conner, 
 
 50, 111. Atkinson v. Dunlap, 
 
 46, 510. Atkinson v. Medford, 
 
 51, 86. At. &St.Law.E.E.Co. 
 
 V. Cumb. Co. Com'rs, 
 
 54, 358. Atwell v. GoweU, 
 
 53, 508. Atwood v. Lucas, 
 
 48, 332. Auburn v. Hebron, 
 
 49, 507. Augusta Bank v. Au- ) 
 
 gusta, ) 
 
 56, 176. Augusta Savings Bank 
 V. Augusta, 
 
 47, 367. Augusta v. Clielsea, 
 
 50, 74. Austin v. Austin, 
 47, 217. Ayer v. Warren, 
 
 I Contempt of Court, 100, 101. Equity, 165 J67, 168. 
 ■ Exceptions, 217. Injunction, 269. Nuisance, 
 I 369. Eules of Court, 469. 
 
 Equity, 184; Eailroad, 448. 
 
 Poor Debtor, 415. 
 
 Amendment, 15, 16. Estoppel, 193. Exceptions, 
 
 217. Lien, 815. 
 Devise, &o., 150, 152. Income, 262. Probate 
 
 Court, 437. 
 Appeal, 21. Debt, 132. Judgment, 295. 
 New Trial, 363. Review, 466, 467. 
 Const. Law, 97, 98. Judgment, 295. Eeview, 466. 
 Exceptions, 218. Marriage, 331. 
 
 Certiorari, 85. 
 
 Usury, 535. 
 
 Assump.sit, 36. Damages, 131. Frauds, Statute. 
 
 of, 252. 
 Pauper, 389. 
 Constitutional Law, 97, 99. Coupons, 121, 122. 
 
 Scrip, 477. Statute, 495. 
 
 Savings Banks, 473. 
 Pauper, 391. Set-off, 481. 
 Dower, 160. Probate Court, 437. 
 Married Woman, 332. 
 
 B. 
 
 53, 414. Bachelder v. Perley, 
 
 48, 20. Badger v. Towle, 
 
 56, 474. Bailey v. Hope Ins. Co. 
 46, 167. Bailey v. Loud, 
 
 50, 171. Bailey v. Myrick. 
 
 52, 132. Bailey v. Myrick, 
 45, 236. Baker v. Cotter, 
 
 45, 41. Balch v. Patten, 
 
 54, 167. Baldwin v. Hatch, 
 44, 55. Baldwin v. Merrill, 
 
 46, 152. Ballard v. Child, 
 
 47, 58. Boucher v. Mausel, 
 47, 97. Bangor v. Brewer, 
 
 46, 558. Bangor v. Fairfield, 
 
 61, 521. Bangor v. Lansil, 
 
 47, 34. Bangor, O. & M. E. E. 
 
 Co. V. Smith, 
 
 49, 9. Bangor, O. & M. E. E. ) 
 
 Co. V. Smith, ) 
 
 48, 198. BankofCumb. V.May- 
 
 berry, 
 56, 385. Bank of Mut. Eedemp- 
 
 tion V. Hill, 
 46, 9. Barbour v. Barbour, 
 
 51, 608. Barbour v. Camden, 
 
 53, 575. Barker v. Dixmont, 
 46, 526. Barnard v. Field, 
 
 54, 124. Barnes v. Hathorn, 
 51, 110. Barnes v. Union M. F. 
 
 Ins. Co., 
 56, 498. Barrett v. Black, 
 
 50, 127. Barrows v. Turner, 
 
 Attachment, 41. Execution, 226. 
 
 Abatement, 1, 2. Practice, 419, 420. Supreme 
 
 Judicial Court, 497, 498. 
 Insurance, 276, 281, 282. 
 Trustee Process, 526. 
 Assignment, 28. Bond, 74. Mortgage, 342, 347, 
 
 349,351. OfBcer, 371. Waiver, 538. 
 Equity, 169. Mortgage, 351, 353. 
 Evidence, 195, 204. Insurance, 282, 287. 
 Assumpsit, 30. 
 
 Attachment, 42, 43. Officer, 372. 
 Evidence, 203. Poor Debtor, 411. 
 Covenant, 125. 
 
 Bills, &o., 59. Liquor, 321. Practice, 418. 
 Evidence, 210, 213. Pauper, 389. 
 Actions, &c., 6. Insane Hospital, 270. Pauper, 
 
 391,393. 
 Drain, 162. 
 
 Corporation, 114, 115. Eailroad, 444. 
 Actions, &c., 7. Amendment, 16. Case, 83. 
 Trespass, 515. 
 
 Bills, &c., 71. Lord's Day, 327. 
 
 Bank, 52, 53. 
 
 Dower, 157, 160. 
 
 Bounty, 77. Commutation, 91. Town, 510, 511. 
 
 Town, 510, 512. 
 
 Liquor, 321. 
 
 Nuisance, 369. 
 
 Insurance, 274, 277. 
 Practice, 432. Wharf, 551. 
 Attachment, 38. Mortgage, 360. 
 
TABLE OF CASES. 
 
 XI 
 
 47, 53. Bartlett v. Fellows. 
 
 46, 435. Bartlett v. Hamilton, 
 
 46, 317. Bartlett v. Sawyer, 
 
 46, 500. Bartlett v. Union M. F. 
 
 Ins. Co., 
 
 46, 121. Barton v. Hinds, 
 
 55, 125. Bassett v. Bassett, 
 
 55, 127. Bassett v. Bassett, 
 
 49, 491. Bates v. And. & Ken. 
 
 K. E. Co., 
 
 46, 387. Bates v. Butler, 
 
 51, 423. Bates v. Sargent, 
 
 49, 87. Bates V.Ward, 
 51, 341. Bath v. Miller, 
 
 53, 308. Bath v. Miller, 
 
 50, 587. Beach v. Pennell, 
 55, 482. Beal v. Gordon, 
 
 45, 479. Beale v. Knowles, 
 
 51, 348. 
 
 51, 585. 
 56, 297. 
 48, 291. 
 
 47, 451. 
 
 48, 314. 
 
 52, 529. 
 
 53, 431. 
 
 46, 460. 
 56, 178. 
 
 45, 483. 
 
 46, 499. 
 
 55, 555. 
 44, 45. 
 
 46, 524. 
 44, 164. 
 44, 416. 
 
 47, 328. 
 44, 255. 
 
 56, 170. 
 58, 401. 
 
 50, 118. 
 53, 487. 
 
 55, 501. 
 55, 89. 
 
 50, 121. 
 
 49, 91. 
 52, 24. 
 
 51, 325. 
 
 50, 31. 
 
 44, 271. 
 55, 238. 
 
 47, 543. 
 
 51, 601. 
 50, 364. 
 
 48, 545. 
 
 Beals V. Cobb, 
 Bean v. Boston L. W. 
 Bean v. Soper, 
 Beaulieu v. Portl'd Co. 
 
 Beedy v. Maoomber, 
 Begg V. Whittier, 
 Belfast V. Waldo Co. 
 
 Commissioners, 
 Belfast V. Waldo Co. 
 
 Commissioners, 
 Belfast V. Washington, 
 Bell v. Furbush, 
 Benner v. Welt, 
 Bennett v. Green, 
 Benson v. Drake, 
 Bent V. Weeks, 
 
 Bent V, 
 Berry V. 
 Berry v, 
 Berry v. 
 Berry v. 
 Berry v, 
 Berry v, 
 
 Weeks, 
 . Bakeman, 
 . Billings, 
 . Billings, 
 . Dwinel, 
 Hceflfner, 
 Johnson, 
 
 BeiTy V. Lisherness, 
 Berry v. Eeed, 
 
 Bethel v. Msison, 
 Bickford v. Brooksville. 
 Biokford v. Ellis, 
 Bicknell v. Lewis, 
 Bigelow V. Littlefield, 
 Bigelow V. Keed, 
 BiUings v. Berry, 
 
 Billings V. Collins, 
 Billings V. Gibbs, 
 Bisbee v. Ham, 
 Bither v. Buswell, 
 Black V. Grant, 
 Black v. Hiokey, 
 
 48, 297, Blake v. Blanchard, 
 
 Mortgage, 353. 
 
 Agency, 14. 
 
 Evidence, 213. Judgment, 296. 
 
 Insurance, 282, 287. 
 Dower, 159. Probate Court, 435, 436. 
 Deed, 135, 
 
 Assumpsit, 32, 36. Deed, 133, 134, 135. Demand, 
 146. Evidence, 211. 
 
 Amendment, 16. Corporation, 115. Estoppel, 192. 
 
 Bills, &c., 60, 65, 67, 68. Knes, 239. 
 
 Equity, 166. Executor, &c., 236. Probate Court, 
 
 438. 
 Costs, 118. Insolvent Estate, 272. 
 Androscoggin Railroad, 19, 20. Mortgage, 360. 
 
 Eeplevin, 461. 
 Lien, 313, 314, 316. Eeplevin, 462. 
 Replevin, 463. Witness, 557. 
 Deed, 135, 139, 141, 143. Evidence, 214. Seisin, 
 
 &c., 479. 
 Attachment, 37. Husband, &c., 261. Married 
 
 Woman, 331. 
 Married Woman, 332. Mortgage, 353. 
 Attachment, 41. 
 Lien, 316. 
 Evidence, 206. Master, &c., 334, 335. Nonsuit, 
 
 367. 
 Evidence, 212. Law, &c., 308. 
 Practice, 429. 
 
 County Commissioners, 124. Way, 543^ 
 
 Co. Com., 124. Estoppel, 190. Way, 543, 544. 
 
 Evidence, 194. Pauper, 395. 
 
 Poor Debtor, 414, 416. 
 
 Error, 186. Judgment, 294. Pleading, 408. 
 
 Appeal, 21. Costs, 118. Recognizance, 456. 
 
 Lord's Day, 327. 
 
 Betterments, 56. Dower, 159, 161. Probate 
 
 Court, 435. 
 Betterments, 56. 
 Breach of Promise, &c., 79, 80. 
 Deed, 136. 
 
 Law, &c., 308. Practice, 424. 
 Damages, 130. 
 Replevin, 462, 463. 
 Exceptions, 219. Guardian, &o., 255. Probate 
 
 Court, 438. 
 Review, 466. 
 Cont, 108. Evidence, 211. Practice, 432. Sale, 
 
 472,473. 
 Collector, 88, 89. 
 Bounty, 78. 
 Attorney, &c., 46. 
 Attachment, 43, 44. 
 Partition, 378. 
 Case, 83. 
 Abatement, 2, 4. Judgment, 293. Mills, 339, 340. 
 
 Practice, 419, 420. 
 Assignment, 28.- Bills, &c., 66. 
 Real Action, 454. 
 
 Accord, &c., 5. Actions, &c., 9. Fraud, &o., 246 
 Mortgage, 360. 
 Deed, 140. Trespass, 515. 
 Arbitration, 23, 25. Exceptions, 219. Practice, 
 
 Execution, 223. Poor Debtor, 415. 
 
xu 
 
 TABLE OF CASES. 
 
 47, 28. Blake V. Braokett, 
 
 49, 102. Blake v. Dennett, 
 
 50, 311. Blake v. Ham, 
 
 53, 430. Blake v. Ham, 
 
 48, 174. Blanchardv.Blanoh'rd, 
 
 47, 248. Bliss v. Sherman, 
 
 48, 322. Blodgett v. Chaplin, 
 ^, 542. Blodgett t. Gardiner, 
 50, 161. Boggs V. Anderson, 
 
 50, 552. Bondholders of Y. & C. 
 
 E. K. Co. in re, 
 
 52, 252. Bonney v. Morrill, 
 
 55, 98. Bonzey v. HodgMns, 
 47,340. Booker v.StincMeld, 
 51,318. BoothbyT.And.&K;en. 
 
 K. K. Co., 
 
 48, 560. Boothby v. Troy, 
 
 51, 191. Bourne v. Ward, 
 
 49, 429. Bowker v. Lowell, 
 
 56, 559. Bowman v. Harding, 
 
 48, 410. Bowzey v. Kewbegin, 
 
 54, 496. Boyd v. Bartlett, 
 
 44, 51. Boyd v. Eaton. 
 
 53, 362. Boynton v. Brastow, 
 
 52, 220. Boynton v. Grant, 
 
 55, 504. Brackett v. Bennett, 
 
 54, 309. Brackett v. Goddard, 
 
 55, 504. Brackett v. McKenney, 
 
 53, 228. Braokett v. Persons 
 
 Unknown, 
 
 53, 238. Brackett v. Persons 
 
 Unknown. 
 
 54, 426. Brackett v. Eedlon, 
 
 49, 356. Braokett v. Vining, 
 
 52, 27. Bradbury v. Cumb. Co., 
 
 53, 99. Bradbuiy v. Gilford, 
 
 45, "9. Bradford v. Cressey, 
 
 53, 462. Bradley v. Webb, 
 
 47, 85. Bradley v. Veazie, 
 
 50, 407. Bradstreet v. Erskine, 
 
 51, 323. Bragdon v. Poland, 
 
 55, 92. Bragdon v. Somerby, 
 51, 532. Bragg v. Bangor, 
 
 53, 65. Bragg v. Pierce, 
 
 49, 115. Braley v. Goddard, 
 
 50, 64. Brann v. Vassalboro', 
 
 54, 528. Bremen v. Brewer, 
 
 45, 401. Brett v. Marstou, 
 
 46, 480. Brett v. Thompson, 
 45, 64. Brewer v. Churchill, 
 
 53, 106. Bridgton v. Lakin, 
 
 54, 375. Briggs v. Grand Trunk 
 
 Eailway Co., 
 
 49, 479. Brookings v. White, 
 
 54, 436. Brown v. Allen, 
 
 55, 520. Brown -v. Bates, 
 
 51, 301. Brown v. Cousens, 
 49, 421. Brown v. Dohnell, 
 45, 52. Brown v. Dwelley, 
 
 Poor Debtor, 411, 412, 416. Statute, 495. 
 Mortgage, 356. Pleading, 408. Keal Action, 451. 
 Deed, 144. Easement, 164. Eeal Action, 450. 
 Eeal Action, 452. 
 Covenant, 124, 125. Damages, 131. Deed, 136. 
 
 Dower, 161. 
 Deposition, 146. Exceptions, 218. 
 Fraud, &c., 247. Trustee Process, 525, 529. 
 Interest, 289. 
 Deed, 135. Morlgage, 345. 
 
 Trust, 531. 
 
 Deed, 140. Law, &c., 307. , 
 
 Shipping, 485, 486. 
 
 Estoppel, 191. Writ, 559. 
 
 EaJlroad, 448. 
 
 Actions, &c., 6, 7. 
 
 Bills, &c., 72. 
 
 Bond, 75. Collector, 88. 
 
 Attachment, 41. Bankruptcy, 54. 
 
 Attachment, 38. 
 
 Set-off, 481. 
 
 Actions, &c., 6. Amendment, 15. Sale, 472. 
 
 Equity, 177. Trust, 533. 
 
 Execution, 228, 229, 230, 232. 
 
 Execution, 230. 
 
 Deed, 145. 
 
 Execution, 230, 231. 
 
 Deed, 141. Evidence, 204, 205, Mats, 241. Par- 
 tition, 379. Proprietors, &c., 440, 441. Seisin, 
 &o., 478, 480. 
 
 Deed, 141. Dower, 158. Evidence, 204. Ex- 
 ceptions, 221. Flats, 241. Partition, 379. Seis- 
 in, &c., 478. 
 
 Execution, 227, 228, 229. Eeal Action, 454. 
 
 Collector, 88. 
 
 Debt, 132. 
 
 Fence, 239. 
 
 Deed, 138. Evidence, 202, Nuisance, 368. Water 
 Power, 541. 
 
 Equity, 170, 175. 
 
 Habeas Coi-pus, 256. Probate Court, 436. 
 
 Mills, 339, 340. 
 
 Demand, 146. 
 
 Complaint, 92. Liquor, 325. 
 
 Indictment, 263. Way, 548. 
 
 Accord, &c., 5. Mortgage, 350. 
 
 Partnership, 381. 
 
 Amendment, 19, 23. Practice, 419. 
 
 Pauper, 390. Soldier's Aid, 490. 
 
 BUls, &c., 58, 64, 67. Nonsuit, 367. Peddler, 399. 
 Sale, 472. 
 
 Attachment, 38. 
 
 Shipping, 487. 
 
 Attachment, 38. Bounty, 77. Tr. Process, 527. 
 
 Pleading, 407. 
 
 Cases, &c., 84. Married Woman, 332. Mortgage, 
 
 Costs', 117. 
 
 Attachment, 38. Mortgage, 347, 358. Eeal Ac- 
 - tion, 451. 
 Limitations, 319, 320. Married Woman, 333. Ee- 
 
 view, 466. 
 BiUs, &o., 60, 71. Corporation, 110. Evidence, 
 
 215. Insurance, 279, 
 Trust, 532. 
 
TABLE OF CASES. 
 
 xm 
 
 52, 479. 
 
 52, 578. 
 
 53, 9. 
 53, 246. 
 55, 230. 
 
 46, 490. 
 
 47, 275. 
 
 56, 126. 
 
 47, 161. 
 51, 29. 
 
 50, 296. 
 
 55, 153. 
 
 56, 569. 
 
 51, 149. 
 
 55, 515. 
 49, 460. 
 
 48, 394. 
 
 55, 490. 
 
 56, 22. 
 
 49, 108. 
 55, 252. 
 
 54, 150. 
 
 55, 180. 
 55, 182. 
 54, 152. 
 47, 456. 
 44, 388. 
 
 53, 417. 
 47, 423. 
 
 47, 492. 
 
 52, 281. 
 
 48, 113. 
 
 54, 477. 
 
 Brown v. Ford, 
 Brown v. Haynes, 
 Brown V, Holyoke, 
 Brown v. Johnson, 
 Brown V, Nourse, 
 
 Brown v. Snell, 
 Brown v. So. Ken. Ag. 
 
 Attorney, &c., 46. Deposition, 147. 
 
 Damages, 129. Sale, 471. 
 
 Deed, 136. Evidence, 201. Mortgage, 842. 
 
 Equity, 170, 173. 
 
 Abatement, 3. Amendment, 18. Bills, &c., 69. 
 Executor, &c., 237. Limitations, 320. Plead- 
 ing, 403. 
 
 Execution, 233. Mortgage, 353. 
 
 So, 
 
 Brown v. Thurston, 
 Brown v. Watson, 
 Brown v. Witham, 
 Bryant t. Erskine, 
 Bryant v. Erskine, 
 Bryant v. Erskine, 
 Bryant v. Fairfield, 
 
 Corporation, 110. 
 
 Deed, 138. Evidence, 202. Landlord, &c., 304. 
 
 Nuisance, 368, 369. 
 
 Town, 511. 
 
 Trustee Process, 527. 
 
 Mortgage, 346, 354 
 
 Keal Action, 453. 
 
 Actions, &c., 8. Error, 187. Real Action, 450. 
 Sale, 473. Title, &c., 508. 
 Bryant v. Merrill, Married Woman, 334, 
 
 Bubier v. Eoberts, Dower, 158. 
 Bucknam v. Greenleaf, Verdict, 536, 537. 
 Bucknam v. Perkins, Witness, 558. 
 Buoksportv. Rockland, Pauper, 386, 387. 
 Buffum V. Buffum, Partnership, 381, 382. 
 Buffum V. Eamsdell, Execution, 227. Judgment, 295, 296. Mortgage, 
 
 354. 
 Bulfinchv.Waldoboro', Probate Court, 439. 
 
 Bunker V. Tufts, Evidence, 205. Fi-aud, &c., 245. Surety, &o., 499.- 
 
 Bunker v. Williams, See Case above. 
 Bunton v. Dunn, Bonds, 76. Partnership, 384. 
 
 Burnham v. Boss, Costs, 120. Pleadings, 403. S. J. Court, 497. 
 
 Burton v. Co. of Ken., Constitutional Law, 96. 
 
 Bush V. Holmes, 
 Butler V. Mace, 
 Butler V. MiUett, 
 Butler V. Starrett, 
 BuzzeU V. Laconia 
 
 Manuf. Co., 
 Byram v. Gardiner, 
 
 Damages, 131. Sale, 470. 
 
 Arbitration, 23. 
 
 Amendment, 16. Evidence, 211. New Trial, 365. 
 
 Trustee Process, 530, 
 
 Case, 82. Master, &c., 334. Pleading, 404. 
 Amendment, 18. Way, 546, 
 
 48, 144. Cabot v. Given, 
 
 51, 414. Calais v. Bradford, 
 
 54, 365, . Calef v. Calef, 
 
 46, 206. Call v. Chadbourne, 
 
 49, 452. Call v. Poster, 
 
 52, 257. Call v. Foster, 
 
 55, 517, Call v. Perkins, 
 
 46, 226. Callender v. Furbish, 
 
 51, 69. Campbell v. Hamilton 
 
 M. Ins. Co., 
 
 47, 143. Campbell v. Smith, 
 54, 445. Carleton v. Lovejoy, 
 
 46, IS, Carleton v. Whipple, 
 46, 15. Carleton v. White Mt. 
 Bank, 
 
 48, 424. Carlisle v. McNamara, 
 44, 77. Carr v. Mason, 
 
 46, 81. Carroll v. Hinkley, 
 
 52, 82. Carroll V. York & C. 
 
 K. E. Co., 
 51, 382. Carson v. Walton, 
 
 c 
 
 Bills, <%o., 60, 70. Evidence, 195. 
 
 Pauper, 394. Pleading, 406. Practice, 422. Scire 
 
 Facias, 477, 
 Divorce, 154. 
 
 Constitutional Law, 99. School District, 475. 
 Poor Debtor, 414, 416. Practice, 419, 
 Poor Debtor, 417, Release, 459. 
 Shipping, 484. 
 Costs, 117. Trustee Process, 524. 
 
 Insurance, 277. 
 Lien, 315. 
 
 Donatio, &c., 156. Husband, &c., 261. Tro- 
 ver, 522. 
 Agency, 13. 
 
 Agency, 18. 
 
 Cheating, &o., 87. Witness, 557. 
 
 Release, 458. 
 
 Corporation, 112. 
 
 See Mason v. Lane. 
 Costs, 118, 120. 
 
XIV 
 
 TABLE OF CASES. 
 
 55, 337. 
 
 47, 257. 
 
 48, 516. 
 
 50, 322. 
 50, 337. 
 
 53, 103. 
 
 45, 263. 
 
 54, 380. 
 56, 319. 
 
 50, 212. 
 54, 170. 
 
 51, 413. 
 56, 554. 
 
 48, 389. 
 
 54, 9. 
 53, 12. 
 
 47, 342. 
 
 46, 44. 
 
 55, 87. 
 
 47, 135. 
 
 45, 534. 
 
 53, 275. 
 
 54, 160. 
 
 56, 390. 
 
 55, 21. 
 55, 290. 
 
 48, 182. 
 
 49, 375. 
 55, 543. 
 
 44, 104. 
 
 45, 408. 
 
 44, 433. 
 
 49, 367. 
 
 45, 455. 
 
 48, 73. 
 
 51, 528. 
 47, 55. 
 55, 546. 
 
 52, 68. 
 
 55, 61. 
 
 53, 427. 
 
 50, 197. 
 
 49, 5.50. 
 47, 349. 
 55, 381. 
 49, 406. 
 52, 293. 
 44, 163. 
 49, 388. 
 
 46, 314. 
 55, 361. 
 
 Carter v. Porter, 
 Carver v. Hayes, 
 Cary v. Whitney, 
 
 Cary v. Whitney, 
 Cary v. Whitney, 
 Casoo Bank v. Keene, 
 
 Cassidy v. Ken. & Port, 
 E. E. Co., 
 
 Cassity v. Cota, 
 
 Castine v. Winterport, Pauper, 388. 
 
 Castner v. Slater, 
 
 Caston V. Monmouth 
 M. F. Ins. Co., 
 
 Centre St. Church v. 
 Maohias Hotel Co., 
 
 Chadbourne v. Hans- 
 corn 
 
 Execution, 224. Trust, 534. 
 
 Assumpsit, 34. Bills, &c., 57, 58. 
 
 Betterments, 56. Corp., 110. Deed, 133. Equity, 
 176. Estoppel, 191. Land Agent, &c., 301. Pro- 
 prietors, &o., 440. Science, &o., 479. State, 491. 
 
 Betterments, 56. 
 
 Interest, 289. 
 
 Bills, &c., 68. Damages, 130. Estoppel, 193. 
 Practice, 426, 427. 
 
 County Commissioners, 122. 
 Trustee Process, 530. 
 
 Actions, &c., 8. Cont., 103, 107. Payment, 397. 
 
 Insurance, 275, 283. 
 
 Deed, 140. 
 
 Interest, 289. Practice, 432. 
 
 Chadbourne v. Mason, Deed, 139. Evidence, 203. Execution, 225. 
 
 Chadwick v. Baker, Shipping, 483. 
 
 Chadwick v. Eastman, Bills, &o., 68. 
 
 Chadwick v. McCaus- 
 land. Title, &c., 508. Way, 546, 549. 
 
 Chadwick v. Portland, Bills, &o., 58. 
 
 Chamberlain v. Black, Equity, 180. 
 
 Chamberlain v. Guil- 
 ford, Order, 377. 
 
 Chandler v. Le Baron, Evidence, 208. 
 
 Chaplin v. Barker, Abatement, 3. Pleading, 408. Real Action, 451, 
 452, 453. 
 
 Chapman v. And. E. E. 
 Co. Execution, 233. 
 
 Chapman v. Limerick, Town, 511, 512. 
 
 Chase v. Chase, 
 Chase v. Columbian 
 
 Ins. Co., 
 Chase v. Flagg, 
 Chase v. MoLellan, 
 Chase v. Savage, 
 Chick V. EoUins, 
 
 Childs V.Phillips, 
 Childs V. Wyman, 
 Church V. Eowell, 
 
 City Bank v. Adams, 
 Cil^ Bank v. Norton, 
 Clark V. Bosworth, 
 Clark V. Pratt, 
 Clark V. Pratt, 
 
 Clark V. Eockland W. \ 
 P. Co., ( 
 
 Clark V. WardweU, 
 Clement v. Garland, 
 Clifford V. Thomaston 
 
 M. Ins. Co., 
 Clinton v. Benton, 
 Clough V. Grossman, 
 Cobb V. Portland, 
 Coburn v. Loomis, 
 
 Alimony, 14. Divorce, 154. 
 
 Corp., 111. 
 Bills, &c., 68. 
 Mortgage, 856. 
 Mortgage, 357. 
 MiUs, 338, 339. 
 
 454. 
 Actions, &c., 6. 
 Bills, &c., 58. 
 DomicU, 155. 
 
 Tax, 502. 
 Evidence, 200. 
 Poor Debtor, 412. 
 Deed, 135. 
 Eeal Action, 453, 454. 
 Execution, 227, 232. Seisin, &c., 479. 
 Evidence, 119. Mills, 336, 337. Practice, 424. 
 
 Eiparian Eights, 467, 468. E. W. P. Co., 468, 
 
 469. 
 Equity, 170, 174. Injunction, 270. Town, 511. 
 Execution, 226. Pleading, 409. 
 
 Mortgage, 355. Eeal Action, 
 
 Evidence, 210. Exceptions, 219. 
 Trustee Process, 525. 
 
 Insurance, 284. Law, &c., 308. 
 
 Overseers, &c., 377. Pauper, 387, 388, 390. 
 
 Pleading, 409. 
 
 Police, 410. 
 
 Probate Court, 437. 
 Cocheco Bank v. Berry, Cont., 107, 108, 109. Law, &c., 307. Lien, 313. 
 Coe V. Bicknell, Attachment, 37. Title, &c., 507. 
 
 Coe V. Bradley, Land Agent, &c., 301. 
 
 Coe V. Wilson, Attachment, 37. Lease, 310. 
 
 Coffin V. Coffin, Divorce, 154. 
 
TABLE OF CASES. 
 
 XV 
 
 45, 507. Coffin v. Eicli, 
 
 44, 47. Colburn v. Grover, 
 
 50, 398. Colcord v. Fletcher, 
 
 48, 108. Cole v. Edgerly, 
 
 48, 562. Coleman v. Andrews, 
 52, 522. Collins v. School Dist. 
 
 No. 7, in Liberty, 
 
 45, 419. Conant v. Oxford, 
 56, 201. Concord v. Delaney, 
 
 45, 447. Concord U. M. F. Ins. 
 
 Co. V. Woodbury, 
 
 52, 476. Connell v. Bliss, 
 
 52, 185. Conner v. Whitmore, 
 
 54, 352. Conway Fire Ins. Co. v. 
 
 Sewall, 
 
 46, 497. Cony v. Barrows, 
 
 49, 570, Cooley v. Patterson, 
 52, 472. Cooley v. Patterson, 
 
 52, 230. Cooper v. Bailey, 
 
 45, 549. Cooper v. Littlefield, 
 
 50, 80. Cooper v. Waldron, 
 
 53, 542. Corbett v. Maine and 
 
 Constitutional Law, 96, 97, 98. Corp., 110, 111 
 112. Statute, 492, 495. 
 
 Abatement, 2, 3. Pleading, 407, 408. Real Ac- 
 tion, 451. 
 
 Ai-bitration, 23, 24. 
 
 Mortgage, 348, 350. 
 
 Mills, 339. 
 
 School District, 475. 
 
 "Way, 345, 346. 
 
 Pleading, 407. Town, 511. 
 
 Estoppel, 188. Insurance, 282. Mortgage, 355, 357. 
 
 PracticG 426 
 
 Mortgage, 346, 348, 349. Eeal Action, 450. 
 
 Amendment, 17. Error, 186, 187. Insurance, 288. 
 
 Limitations, 317, 318. Notice, &c., 368. Officer, 
 373, 374. 
 
 Set-off, 481. 
 
 Attorney, &c., 47. Judgment, 294. 
 
 Amendment, 17. Bills, &c., 61. Trustee Process, 
 524. 
 
 Bastardy, 55. 
 
 Amendment, 15, 16. Law, &o., 308, 309. Main- 
 tenance, 328. Nonsuit, 367. 
 
 51, 114. 
 
 51, 540. 
 56, 518. 
 47, 141. 
 47, 416. 
 49, 96. 
 47, 435. 
 
 45, 16. 
 
 46, 327. 
 
 44, 491. 
 49, 449. 
 
 46, 250. 
 49, 416. 
 
 52, 267. 
 
 52, 405. 
 
 53, 355. 
 
 49, 539. 
 
 55, 358. 
 
 56, 77. 
 
 50, 568. 
 
 45, 183. 
 45, 190. 
 50, 568. 
 
 54, 386. 
 45, 434. 
 49, 68. 
 
 55, 33. 
 
 45, 228. 
 
 47, 525. 
 
 56, 24. 
 
 46, 303. 
 44, 121. 
 
 Union Banks, 
 Corey v. Greene, 
 Corinth v. Bradley, 
 Covel V. Hart, 
 Crafts V. Elliotsville, 
 Craig V. Gilbreth, 
 Crane v. Pearson, 
 Crehore v. Pike, 
 Cressey v. Bradfoi'd, 
 Crocker v. Craig, 
 Crocker v. Gullifer, 
 Crooker v. Baker, 
 Crocker v. Crooker, 
 Crooker v. Crooker, 
 Crooker v. Crooker, 
 Crooker v. Frazier, 
 
 Crooker v. EandaU, 
 Crosby v. Bessey, 
 
 53, 176. 
 47, 557. 
 
 Execution, 229. 
 
 Equity, 177, 178, 179. Fraud, &o., 247. 
 
 Pauper, 386, 388, 389. 
 
 Deed, 143, 145. Evidence, 202. 
 
 Execution, 224. 
 
 Evidence, 212. Trespass, 516. 
 
 Mortgage, 360. 
 
 Practice, 428. Review, 465. 
 
 Trespass, 514. 
 
 Equity, 171. Practice, 430. 
 
 Sale, 472. Trover, 521. 
 
 Execution, 223. 
 
 Equity, 177, 181. Partnership, 382. 
 
 Evidence, 206. Mortgage, 349. 
 
 Equity, 184. Partnership, 382. 
 
 Equity, 181, 184. Execution, 226, 233. Mortgage, 
 346, 350. 
 
 Eeview, 466. 
 
 Actions, &c., 8. Prescription, 433. 
 Crowtlier v. Crowther, Husband, &c., 260. 
 Cumb. & Oxford Canal 
 
 Corp. V. Portland, Penal Action, 399. 
 Cummings v. Hayes, Exceptions, 220. 
 
 Cummings v. Little, Bills, &o., 66, 70. Surety, &c., 498, 499, 500. 
 Cummings v. Maxwell, Constitutional Law, 96. 
 Cummings v. Smith, Exceptions, 220. Pleading, 405. Practice, 423, 
 
 429. Waiver, 538. 
 Cummings v. York, Poor Debtor, 412. 
 Cumner v. Butler, Partnership, 384. 
 
 Cunningham v. Foster, Judgment, 294, 295. 
 Cunningham v. Holton, Landlord, &c., 303, 304. 
 Curtis V. Blanchard, Shipping, 486. 
 " " ~ ' " Eeview, 465. 
 
 Case, 84. Exceptions, 219. Practice, 419. 
 
 Agency, 13. Assumpsit, 35. Cont., 104. 
 
 Accord, &c., 4. Bills, &o., 67. Cont, 103, 104. 
 Payment, 396, 398. Pleading, 406. 
 
 Infant, 268. Joint Tenant, &c., 292. Limitations, 
 320. Pleading, 409. Practice, 430. 
 
 Sale, 472, 473. Set-off, 481. 
 
 Trustee Process, 524, 525, 527. 
 
 Curtis V. Curtis, 
 Curtis V. Downes, 
 Gushing v. Eice, 
 Gushing v. Wyman, 
 
 54, 81. Cutler v. Currier, 
 
 Cutler V. Gilbreth, 
 Cutter V. Perkins, 
 
XVI 
 
 TABLE OF CASES. 
 
 D 
 
 56, 422. Daggett v. Gushing. 
 
 48, 42. Dalton v. Dalton, 
 51, 170. Dalton v. Dalton, 
 
 54, 95. Dane v. Derby, 
 
 49, 173. Dane v. Gilmore, 
 51, 544. Dane v. Gilmore, 
 
 56, 246. Darby v. Hayford, 
 
 51, 160. Davis v. Buffam, 
 
 50, 294. Davis v. Caswell, 
 
 49, 282. Davis v. Davis, 
 
 50, 602. Davis v. Getchell, 
 53, 542. Davis v. Maine & Un- 
 ion Banks, 
 
 47, 443. Davis v. Kussell, 
 53, 493. Davis v. Stinson, 
 
 51, 264. Davis v. Winslow, 
 
 51, 91. Day v. Charter Oak F. 
 
 & M. Ins. Co., 
 
 52, 60. Day v. Conway Ins. Co. 
 
 51, 178.. Day v. Hooper, 
 
 48, 368. Day v. Swift, 
 
 44, 322. Decker v. Gammon, 
 
 45, 293. Deering v. Lord, 
 
 55, 284. Deering v. Tucker, 
 
 50, 298. DemutE v. Cutler, 
 
 45, 430. Dennen v. Haskell, 
 53,554. Des Brisay V. Hogan, 
 
 48, 478. Desmond v. Maonias- 
 
 port, 
 
 52, 210. Detroit v. Somerset Co. 
 
 Comm'rs, 
 
 49, 320. DevoU v. Scales, 
 
 51, 420. De Wolfe v. French, 
 
 46, 483. Dickey v. Maine Tel. 1 
 
 Co., f 
 
 53, 441. Dinsmore V. Grossman, 
 
 56, 527. Doane v. Govel, 
 
 45, 113. Doane v. Freeman, 
 48, 178. Dockray v. Mason, 
 
 51, 465. Dole v. Merchants' M. 
 Ins. Co., 
 
 51, 121. Douglass v. Durin, 
 
 53, 62. Downes v. Eiley, 
 
 47, 462. Downing v. Herrick, 
 56, 26. Doyle v. Donnelly, 
 
 46, 48. Dresser v. Dresser, 
 55, 450. Drew v. Alfred Bank, 
 
 48, 35. Drew v. Eoberts, 
 
 54, 291. Drew v. Wakefield, 
 
 46, 432. Drinkwater v. Jordan. 
 
 52, 141. Drown v. Smith, 
 
 53, 403. Dudley v. Baohelder, 
 
 51, 254. Dudley v. Buckfield, 
 
 55, 145. Dudley v. WeUs, 
 46, 546. Dunning v. Finson, 
 46, 461. Dunning v. Pike, 
 55, 241. Duren v. Getchell, 
 
 52, 206. Durham v. Giles, 
 46, 877. Dwelley v. DweUey, 
 
 Bounty, 79. 
 
 Practice, 423. Trustee Process, 529. 
 
 Executor, &c., 236. 
 
 Mandamus, &o., 330. 
 
 Evidence, 210. Officer, 378, 375. 
 
 Estoppel, 193. Officer, 371, 372, 373, 374. Sheriff, 
 
 482. Writ, 560. 
 Exceptions, 222. Insane Persons, 271. New Trial, 
 
 364. Practice, 428. 
 Fixture, 240, 241. Trover, 519, 522. 
 Judgment, 294. Trespass, 518. 
 Insurance, 287. Trustee Process, 527. 
 Riparian Eights, 467. 
 
 Execution, 229. 
 
 Co. Comm'rs, 123. Eailroad, 445. Trespass, 514. 
 
 Cases, &c., 84. Descent, &c., 148. 
 
 Eiparian Eights, 467, 468. Waiver, 539. Way, 
 
 542. 
 
 Insurance, 373, 374. 
 
 Insurance, 275. 
 
 Arbitration, 24, 25. Debt, 1.32. 
 
 Mortgage, 359. Pledge, 410 
 
 Actions, &c., 6. Case, 82. Pleading, 403. 
 
 Attachment, 38, 39, 40. Lien, 814. 
 
 Devise, &c., 150, 151. 
 
 Abatement, 1, 3. Bills, &c., 65. Pleading, 405, 408. 
 
 Bills, &o., 66. Exceptions, 218. 
 
 Equity, 178, 179. Husband, &c., 260. 
 
 Tax, 502. 
 
 Certiorari, 85. County Commissioners, 123, 124. 
 
 Equity, 165. Injunction, 269. 
 
 Assumpsit, 32. 
 
 Easement, 163. New Trial, 362. Practice, 418. 
 
 Way, 546, 547, 549. 
 Mortgage, 354. 
 Apprentice, &c., 22. 
 Descent, &c., 148. 
 Attachment, 88. Equity, 171, 178. Execution, 
 
 224. Fraud, &c., 247. 
 
 Belligerents, 55. Insnramce, 284. 
 
 Assignment, 28. Mortgage, 347. 
 
 Poor Debtor, 414. 
 
 Actions, &c., 7. Costs, 118. Justice, &c., 299. 
 
 Accord, &c., 5. New Trial, 365. Practice, 428. 
 
 Donatip, &o., 156. Trust, 580, 538. 
 
 Attachment, 89,40. 
 
 Witness, 557. 
 
 Charitable Uses, 86. Costs, 119. Devise, &o., 152, 
 
 153. Equity, 171, 178. 
 Cont., 104. Pleading, 406. Belease, 459. 
 Deed, 136, New Trial, 864. Waste, 540. 
 Equity, 178. Trust, 533. 
 Liquor, 822. 
 Stamp, Eevenue, 490. 
 
 Forcible Entry, &c., 241. Landlord, &o., 302. 
 Married Woman, 331. 
 Arbitration, 23, 24. Married Woman, 334. 
 Bills, &c., 64. Surety, &c., 500. 
 Divorce, 153, 154. Practice, 430. Statute, 492. 
 
 Witness, 556. 
 
TABLE OF CASES. 
 
 XVll 
 
 54, 
 
 468. 
 
 Dwinel 
 
 44, 
 
 65. 
 
 Dwinel 
 
 53, 
 
 24. 
 
 Dwinel 
 
 44, 
 
 167. 
 
 Dwinel 
 
 50, 
 
 479. 
 
 Dwinel 
 
 48, 
 
 298. 
 
 Dyer v. 
 
 52, 
 
 850. 
 
 Dyer v. 
 
 45, 
 
 376. 
 
 Dyer v. 
 
 53, 
 
 118. 
 
 Dyer v. 
 &M. 
 
 47, 
 
 254, 
 
 Dyer v. 
 
 51, 
 
 380. 
 
 Dyer v. 
 
 51, 
 
 104. 
 
 Dyer v. 
 
 54, 
 
 18. 
 
 Dyer v. 
 
 48, 
 
 287. 
 
 Dyer v. 
 
 V. Brown, Cont., 108, _ . .„ . 
 
 V. Godfrey, Deposition, 146. Evidence, 211. Eeview, 464. 
 
 V.Sawyer, Agency, 13. Money, 341. 
 
 V. Veazie, Mills, 335, 336. Way, 541. 
 
 V. Teazie, Mills, 336, 337. Way, 541. 
 
 Burnham, Pleading, 402. Poor Debtor, 417. 
 
 Chick, Forcible Entry, &o., 242. 
 
 Huff, Bastardy, 54. New Trial, 363. 
 Piscataqna F. 
 
 Ins. Co., Insurance, 285, 288. 
 
 Snow, Evidence, 195. SMpping, 483, 484. 
 
 Toothaker, Mortgage, 345. Eeal Action, 450. 
 
 Waliser, Account Mut., 5. 
 
 Walker, Limitations, 320. 
 
 Wilbur, Assumpsit, 31. Joint Tenant, &c., 291. Judg- 
 ment, 294. Partition, 381. Eeview, 465. 
 
 54, 224. Easterbrook v. Union 
 
 Mut. Life Ins. Co., 
 45,307. Eastman V.Carol Co. M. 
 
 F. Ins. Co., 
 45, 302, Eastman v, Fletcher, 
 49, 559. Eaton v. Jacobs, 
 52, 445. Eaton v. Jacobs, 
 52, 63. Eaton v. Munroe, 
 
 47, 132. Eaton v. Nason, 
 
 52, 360. Edwards v. Gale, 
 
 48, 379. Edwards v. Grand T, E. 
 
 E. Co., 
 
 54, 105. Edwards V. Grand T. E. 
 
 E. Co., 
 
 49, 279. Edwards v. Lord, 
 
 53, 392. Egery v. Decreed, 
 56, 45. Egery v. Woodard, 
 
 50, 535. Elder v. Elder, 
 
 45, 590. Elder v. Larrabee, 
 
 53, 519. Ellsworth v. Brown, 
 
 55, 94. Ellsworth V. Goulds- 
 
 boro, 
 48, 416. Ellsworth v. Houlton, 
 
 56, 315. Emery v. Mariaville, 
 52, 322, Emery v. Piscataqua F. 
 
 & M. Ins. Co., 
 
 54, 389. Emery v. Prescott, 
 56, 333. Emmons v. Bradley, 
 
 56, 407. Estes v. China, 
 48, 495. Esty v. Baker, 
 50, 325. Esty v. Baker, 
 
 54, 447. Eveleth v. Blossom, 
 
 46, 357, Everett v, Herrin, 
 
 48, 537. Everett v. Herrin, 
 
 E 
 
 Insurance, 281. 
 
 Insurance, 273. 
 
 Equity, 181. Execution, 224. Trust, 534. 
 
 New Trial, 364. Eeal Action, 450. 
 
 Law, &c., 309. Practice, 426. Seisin, &c., 479. 
 
 Eeplevin, 461. 
 
 Married Woman, 332. 
 
 Lease, 311. 
 
 Frauds, Stat, of, 251, 252. 
 
 Frauds, Stat, of, 252. 
 
 Bailment, 49. 
 
 Limitations, 320. 
 
 Deed, 137. Evidence, 202. Tax, 503. 
 
 Equity, 183. WiU, 555. 
 
 Shipping, 485, 486. 
 
 Tax, 502. 
 
 Pauper, 389. 
 Pauper, 392, 393. 
 Order, 377. 
 
 Insurance, 275, 276, 283, 287. 
 
 Libel, &c., 312. 
 
 Fraud, &c., 249. Mortgage, 361. Trustee Process, 
 
 525. 
 Drain, 162. 
 
 Deed, 139. Lease, 310. Trespass, 515. 
 Cases, &c., 84. Deed, 144. Landlord, &«., 302, 
 
 303, 304, 305, 306. Trespass, 515. 
 Eeplevin, 461. 
 Attachment, 37. Citizenship, 87. Poor Debtor, 
 
 411. 
 Attachment, 38. Officer, 374, 376. 
 
 F 
 
 56, 42. Faley v. Bramagan, 
 
 49, 360. Fairfield v. GuUifer, 
 
 51, 426. Farnham v, Clement, 
 
 52, 570. Farnham v. Bartlett, 
 
 Abatement, 2, 4. 
 Probate Court, 436, 437. 
 Equity, 177. Frauds, Stat, of, 251. 
 Bond, 75. 
 
XVIU 
 
 TABLE OF CASES. 
 
 52, 576. Famham v. Virgin, 
 
 53, 143. Farrar v. Fairbanks, 
 
 52, 409. Farrin v. Kowse, 
 55, 160. Fassett v. Geyer, 
 50, 24. Faught v. Holway, 
 48, 9. Felch V. Bugbee, 
 
 54, 372. Fenderson v. Owen, 
 
 50, 362. Fenlason v. Kackliff, 
 
 55, 414. Femald v. Garvin, 
 
 53, 458. Ferrin v. Portland, 
 53, 531. Fessenden v. Sager, 
 
 56, 121. Field v. Brackett, 
 
 55, 462. FiUebrown v. Grand T. 
 
 K. K. Co., 
 
 56, 424. First Nat. Bank, Bruns- 
 
 wick V. Lime Eock 
 
 Ins. Co., 
 46, 225. Fiske v. Keene, 
 45, 459. Flowers v. Flowers, 
 
 48, 432. Fogg V. Sanborn, 
 
 53, 171. Folsom v. Skofield, 
 
 51, 568. Fobes v. HaU, 
 56, 174. Fobes v. Smiley, 
 
 49, 14. Fobes v. Wooderson, 
 
 45, 484. Ford v. Erskine, 
 
 50, 227. Ford v. Erskine, 
 
 46, 176. Forsyth v. Day, 
 
 47, 145. Foss V. Edwards, 
 49, 44, Foster v. Dwinel, 
 
 49, 54. Foster v. Gordon, 
 
 44, 448. Fowler v. KendaU, 
 
 53, 107. Fox V. Conway F. Ins. 
 
 Co., 
 
 52, 333. Fox v. Phoenix P. Ins. 
 
 Co., 
 55, 346. Foxton v. Huoking, 
 
 54, 147. Foye v. Southard, 
 48,565. Frankfort V. New Vine- 
 yard, 
 
 51, 445. Frankfort v. Winter- 
 
 port, 
 
 54, 250. Frankfort v. Winter- 
 
 port, 
 
 46, 42. Franklin Wharf Co. v. 
 
 Portland, 
 
 50, 473. Freeman v. Atwood, 
 
 51, 140. Freeman v. Curtis, 
 
 55, 508. Freeman v. Foster, 
 
 49, 195. Freeman y. Harwood, 
 
 45, 50. Freeman v. Morey, 
 
 50, 437. French V. Allen, 
 
 55, 69. French v. SangervUle, 
 
 56, 262. Friend v. Abbott, 
 
 53, 387. Fi-iend v. Penobscot 
 
 Co. Comm'rs, 
 
 54, 845. Frost v. Ilsley, 
 
 55, 376. Frost v. Ilsley, 
 
 47, 523. Frye v. A. & St. L. E. 
 
 E. Co., 
 53, 583. Frye v. Moore, 
 
 56, 72. Fullerton v. Grant, 
 56, 184. Furbigh v. Cunning- 
 ham, 
 
 51, 299. Furlong v. Pearce, 
 
 46, 79. Furlong v. Kandall, 
 
 Assumpsit, 32. Bills, &c., 60, 72. Evidence, 216. 
 
 New Trial, 364. Witness, 557, 558. 
 Pleading, 406. 
 Attachment, 40. 
 Fishery, 240. 
 
 Deed, 139. Prescription, 434. Seisin, 479. 
 Assignment, 29. Attachment, 41. Bills, &o., 68. 
 
 Citizenship, 87. Foreign Laws, 243. 
 Bills, &c., 73. Law, &c., 310. 
 Pleading, 409. Title, &c., 508. Trover, 522. 
 Amendment, 18. Judgment, 294. Pleading, 405. 
 
 Verdict, 536. 
 Bounty, 77. 
 New Trial, 364, 365. 
 Cont, 108. 
 
 Bailment, 50. 
 
 Abatement, 3. S. J. Court, 498. 
 
 Partition, 379. 
 
 Poor Debtor, 414, 416. 
 
 Actions, &c., 7. Assignment, 28. Attorney, &c., 
 
 45. Bills, &o., 59. 
 Assumpsit, 35. New Trial, 364. 
 Attachment, 39. Execution, 226. 
 Landlord, &c., 305. 
 Agency, 11, 12. 
 Dower, 159, 160. 
 Dower, 158. 
 
 Agency, 11, 12, 13. Bills, &c., 70. Estoppel, 191. 
 Poor Debtor, 412, 416. Kecord, 457. 
 Dower, 157, 161. Estoppel, 188. 
 Dower, 157. 
 Bankruptcy, 54. 
 
 Insurance, 238. Pleading, 409. Practice, 430. 
 
 Insurance, 275, 283. 
 Trustee Process, 526. 
 Assumpsit, 34. Hay, 257. 
 
 Pauper, 386. 
 
 Pauper, 388. 
 
 Town, 510, 513. 
 
 Deed, 139. 
 
 Mortgage, 356. 
 
 Equi^, 183. 
 
 Covenant, 125. 
 
 Corp., 110. Trover, 519. Ti-ust, 533. 
 
 Evidence, 194, 204. 
 
 Execution, 225, 230. 
 
 Bounty, 78. 
 
 Way,.544. 
 
 Way, 543, 544. 
 
 Executor, &c., 237. Lien, 314, 316, 317. 
 
 Error, 186. 
 
 Amendment, 16. Pleading, 404. 
 Mills, 337, 338. Verdict, 536. 
 Costs, 121. 
 
 Certiorari, 86. 
 
 Limitations, 319. Usury, 535. 
 
 Evidence, 205. Mortgage, 352. 
 
TABLE OF CASES. 
 
 XIX 
 
 G 
 
 62, 363. 
 
 51, 174. 
 
 44, 99. 
 48, 344. 
 
 50, 580. 
 
 45, 537. 
 
 48, 487. 
 
 46, 511. 
 
 46, 528. 
 
 49, 16. 
 49, 167. 
 
 53, 496. 
 
 49, 580. 
 
 54, 477. 
 
 51, 256. 
 
 47, 504. 
 
 44, 482. 
 
 55, 433. 
 47, 51. 
 54, 186. 
 
 45, 25. 
 45, 17. 
 
 44, 502. 
 54, 460. 
 
 52, 165. 
 
 53, 184. 
 
 54, 453. 
 
 54, 531. 
 
 55, 120. 
 
 47, 352. 
 51, 457. 
 
 45, 599. 
 
 46, 532. 
 51, 182. 
 
 54, 93. 
 
 50, 222. 
 46, 288. 
 
 56, 222. 
 
 55, 385. 
 
 48, 211. 
 55, 579. 
 46, 537. 
 46, 141. 
 
 54, 424. 
 
 47, 112. 
 
 45, 377. 
 
 47, 595. 
 
 48, 282. 
 47, 9. 
 
 Gale V. Edwards, 
 Gale V. So. Berwick, 
 Gallagher v. Black, 
 Gammon v. Butler, 
 
 Deed, 138, 145. 
 Reward, 467. 
 
 Bills, &c., 61, 69. Evidence, 200, 205. 
 Contract, 102. Frauds, Stat, of, 251. 
 &c., 260. Money, 341. 
 Garcelon v. Hampden 
 F. Ins. Co., Insurance, 279, 280. Law, <fec., 309. 
 
 Order, 376. 
 Husband, 
 
 Gardiner v. Farming- 
 dale, 
 Gardner v. Gooch, 
 
 Garland v. Hodsdon, 
 Garland v. Spencer, 
 Garland v. Williams, 
 Garnsey v. Gardner, 
 Gaul V. Brown, 
 Gay V. Bradstreet, 
 
 Gay V. Gardiner, 
 
 Gerrish v. Brown, 
 
 Gerry v. White, 
 
 Getchell v. Boyd, 
 
 Getchell v. Wells, 
 
 Giddings v. Dudley, 
 
 Giles V. Eaton, 
 
 Gillerson v. Mansur, ■ 
 
 Gillerson v. Small, 
 
 Gilmau v.Cunningham, Practice, 428. 
 
 Pauper, 387, 388, 389. 
 
 Deed, 143. Evidence, 204. Exceptions, 218. 
 
 Seisin, &c., 478, 479. Trespass, 578. 
 Deed, 137, 143. 
 
 Fraud, &c., 246. Payment, 397. Sale, 472. 
 Poor Debtor, 412, 413. Keplevin, &o., 464 
 Assignment, 27, 28. Equity, 182. 
 Penal Action, 399. 
 Certiorari, 85. Evidence, 214. Trespass, 515. 
 
 Way, 547. 
 Amendment, 18. Way, 546. 
 Nuisance, 369. Vay, 541, 542. 
 Mortgage, 359. 
 Pleading, 405. 
 Town, 512, Way, 550, 551. 
 Actions, &c., 6. Agency, 14. 
 Equity, 170. 
 Eeplevin, 460. 
 Evidence, 209, 213. Trespass, 514. 
 
 Gilman v. Emery, 
 Gilman v. Gilman, 
 Gilman v. Gilman, 
 
 Gilman v. Gilman, 
 Gilman v. Gilman, 
 Gilman v. Healey, 
 Gilman v. Pearson, 
 Gilman v. Portland, 
 
 Gilman v. McNeil, 
 Gilman v. McNeil, 
 
 Exceptions, 221. Trespass, 517. 
 
 Abatement, 4. Domicil, 155, 156. Will, 554, 555. 
 
 Probate Court, 435, 437, 439. Widow's Allow- 
 ance, 552. 
 
 Equity, 174. Executor, &c., 234. 
 
 Executor, &c., 234. Widow's Allowance, 552. 
 
 Executor, &c., 234. 
 
 Costs, 119. 
 
 Costs, 118, 121. House of Correction, 258. Plead- 
 ing, 404. 
 
 Attachment, 42. Practice, 423. 
 
 Attachment, 43. 
 
 Gilpatiickv.Biddeford, Estoppel, 192. Law, &c., 309. Way, 547, 548, 550. 
 Gilpatrickv.Biddeford, Way, 548, 550. 
 Gleason v. Bremen, New Trial, 364, 365. Way, 547. 
 Gleason v. Tuttle, Mills, 339. Prescription, 4.33. 
 
 Glidden v. Pliilbrick, Amendment, 18. Execution, 228, 230. 
 Goddard v. Coe, Conti-aot, 108. Mortgage, 342, 344. 
 
 Goddard v. Demerritt, Frauds, Stat, of, 251. 
 Goddard v. Hall, Landlord, &c., 303, 306. Eeal Action, 454. 
 
 Godfrey v. Getchell, Executor, &c., 234. Widow's Allowance, 551. 
 
 ~ " Assumpsit, 34. Contract, 103: Deed, 133. Evi- 
 
 dence, 200, 204. Frauds, Stat, of, 250. Main- 
 tenance, &c., 328. 
 
 Agency, 12. Contract, 104. 
 
 Goodspeed v. Fuller, 
 
 Goodwin v. Bowden, 
 
 Goodwin v. Davenport, Bills, &o., 62, 64, 71, 
 Goodwin v. Goodwin, Divorce, 153. 
 Goodwin v. Hubbard, 
 Goodwin v. Merrill, 
 
 Googins V. Gihnore, 
 
 48, 473. Gordon v. Gilman, 
 
 54, 41. 
 
 55, 511. 
 
 Gore V. Fitch, 
 Gould V. Carlton, 
 
 48, 129. Gould v. Lyman, 
 
 Deed, 137. 
 Way, 545. 
 Actions, &c., 6. Amendment, 15. Mortgage, 
 
 342, 359. New Trial, 363, 364. Pleading, 405. 
 Forcible Entry, &c., 242. Landlord, &c., 305. 
 
 Practice, 424. 
 Deed, WH. 
 Executor, &c., 238. Husband, &c., 259. Probate 
 
 Court, 439. Witness, 558. 
 Custom House Wharf, &c., 127. 
 
XX TABLE OF CASES. 
 
 47, 403. Gould v. York Co. M. F. 
 
 Ins. Co., Insurance, 273, 274, 276. 
 
 44,140. Gowenv.Penob.E.R ) Constitutional Law, 98. Corp., 110. Bailroad, 
 
 Co., ( 442. 
 
 44, 157. Gragg v. Brown, Lien, 313, 316. 
 
 53, 133. Granite State Bank v. 
 
 Otis, Pleading, 409. 
 
 53, 373. Grant v. Black, Deed, 141. 
 
 56, 573. Grant v. Grant, Fraud, &c., 246. 
 
 49, 544. Gray v. Brown, Usury, 535. 
 
 55, 487. Gray v. Farmer, Assumpsit, 35. 
 
 53, 200. Greeley v. Me. Ce±iti-al 
 
 E. E. Co., Actions, &c., 9. 
 
 44, 25. Greene v. Godfrey, Contract, 102. Deed, 134. Evidence, 200. Fraud, 
 
 &c., 244. Lord's Day, 327. Sale, 471. 
 
 48, 406. Griffin v. Parcher, Insolvent Estate, 272. 
 
 52, 192. Gross v. Howard, Probate Court, 438. 
 
 48, 369. Grosvenor v. Chesley, Execution, 232. Scire Facias, 476. Statute, 495, 
 
 496. 
 
 53, 383. Grout v. Nichols, Practice, 427. 
 
 45, 165. Gunnison v. Lowe, Witness, 556. 
 
 H 
 
 53, 60. Hall v. Clifton, Pauper, 394. 
 
 48, 255. Hall v. Decker, Constable, 95. Writ, 559. 
 
 51, 31. Hall V. 'Decker, Ai-bitration, 24, 25. Exceptions, 220. 
 
 54, 230. Hall v. Gray, Assumpsit, 36. Eelease, 459. 
 
 52, 355. Hall v. Sands, Creditor, &c., 126. Execution, 226. Fraud, &c., 
 
 247, 248. Law, &c., 309. 
 52, 216. Hallowell v. Augusta, Pauper, 386, 392. 
 45, 32. Hamilton v. Foster, Deed, 138. 
 
 55, 419. Hamilton v. Coding, Liquor, 322, 323. Trespass, 517. 
 55, 193. Hamilton v.Phipsburg, Town, 511, 512. 
 
 47, 447. Hammond v. Ludden, Evidence, 194. Practice, 421. 
 
 52, 138. Hanley v. Sidelinger, Execution, 228, 230, 232. Officer, 371. 
 
 48, 81. Hanson v. Butler, Guardian, &c., 254. Trustee Process, 524, 528, 
 
 529. 
 51, 165. Hanson v. Dow, Attachment, 39. 
 
 55, 184. Hanson v. MiUett, Evidence, 213. Giftj 253. Husband, &c., 259. 
 
 51, 193. Hanson v. York Co. I Appeal, 21.' Biddeford, City of, 57. Co. Com'rs, 
 
 Commissioners, J 123. 
 45, .351. Harriman v. Cum- 
 
 mings, Exeoutionj 227, 229, 2. 
 
 49, 537. Harriman v. Gray, Deed, 144. Dower, 159, 162. Estoppel, i88. 
 
 53, 83. Harriman v. Waldo ) Co. Com'rs, 124. Mandamus, &c., 329, 330. Pro- 
 
 Co. Comm'rs, ) hibition, 439, 440. 
 
 49, 432. Hai-ris v. Morse, Attachment, 44. Lord's Day, 827. Waiver, 438. 
 
 47,298. Harris v.Som.& Ken. 1 Abatement, 3. Contract, 105, 106. Trustee Pro- 
 
 E. E. Co., ) cess, 528, 529. Writ, 559. 
 
 48, 205. Harrison v. Lincoln, Pauper, 391, 392. 
 
 56, 518. Hart v. Covel, Deed, 145. 
 
 55, 572. Hart v. Holden, Bounty, 79. 
 
 47, 169. Hartland v. Church, Assessor, 27. Cases, &c., 84. Collector, 87. Tax, 
 
 501. 
 
 48, 300. Hartshorn v. Phinney, Costs, 119, 120. 
 
 51, 604. Harvey v. Cutts, Amendment, 17. 
 
 53, 468. Haskell v. Mitchell, Assignment, 28. Bills, &c., 67. Evidence, 199. 
 
 52, 128. Haskell v. Moh. F. Ins. 
 
 Co., Estoppel, 189. Insurance, 280. Mortgage, 348. 
 
 56, 324. Hatch v. Atkinson, Donation, &c., 156, 157. 
 
 54, 136. Hatch v. Bates, Deed, 134 Equi^, 175; 179. Evidence, 195, 2i3. 
 
 Mortgage, 357. 
 48, 440. Hathaway v. Addison, Assutapsit, 34. Evidence; 196, 204, 209. Town, 
 
 511. ' > ' ' 
 
TABLE OF GASES. 
 
 XXI 
 
 44, 67. Hathaway v. Morto; 
 
 53j 471. Hathorn t. Galefj 
 
 46, 302. Hathorn v. Towle, 
 
 55, 355. Hay v. Parker, 
 
 44, 177. Hazeltine v. Miller, 
 
 45, 392. Heald v. Thing, 
 55) 445. Hearne v. Hearne, 
 53, 172. Heath v. Farnham, 
 
 50, 378. Heath v. Nutter, 
 
 55, 563. Heffron v. Gallupe, 
 
 51, 407i Hemenway v. Cutler, 
 
 48, 558. Herrick v. Union M. 
 
 F. Ins. Co., 
 
 56, 895. Hersey v. Packard, 
 
 53, 514. Harvey v. Banes, 
 
 49, 71. Hewes v. Blckford, 
 
 50, 271. Hewett v. Adams, 
 
 54, 206. Hewett v. Adams, 
 
 54, 256. Hewey v. Nourse, 
 
 56, 493. Hiokey v. Huse, 
 
 48, 83. Hill V. Lord) 
 
 55, 438. Hill v. Portland & 
 
 Kocheater R. E. Co.j 
 
 46, 297. Hilton v. Lothrop, 
 
 56, 70. Hilton v. Walker, 
 46j 450. Hinckley v. Bridgham, 
 
 49, 59. Hinckley v. Gilmore, 
 48, 348. Hinds v. Jones, 
 
 55, 114. Hines v. Allen, 
 46, 423. Hinks v. Hinks, 
 
 45, 867. Hiram V; Pierce, 
 
 50, 290. Hix V. Sumner, 
 48, 55. Hobbs v. Hatch, 
 
 56, 417. Hobbs v. Manhattan 
 
 Ins. Co. 
 
 48, 68. Hodge v. Boothby, 
 55, 559. Hodgkins v. Dennett, 
 53, 208. Hodgkins v. Merritt, 
 
 46, 23. Holbrook v. Lord, 
 
 52, 564. Holland v. Lewiston 
 
 Palls Bank, 
 
 51, 201. Holmes v. Durell, 
 
 55, 299. Holmes v. Gerry, 
 50, 102. Holmes v. Morse, 
 
 53, 179. Holmes v. Sawtelle, 
 
 49, 242. Holmes v. Smith, 
 
 47, 62. Holt V. Blake, 
 
 56, 15. Holt V. Penobscot, 
 
 54, 540. Holyoke v. Bangor, 
 45, 566. Holyoke v. Gilmore, 
 
 50, 385. Holyoke v. Mayo, 
 53, 549. Homstead v. Loomis, 
 45, 359. Hooper v. Cummings, 
 
 48, 79. Hooper v. Goodwin, 
 
 45, 209. Hooper v. Gorham, 
 56, 251. Hooper v. Haskell, 
 53, 394. Horton v. McCarty, 
 
 49, 213. Hotchkiss v. Hunt, 
 
 56, 252. Hotchkiss v. Hunt, 
 
 50, 336. Houlton v. Martin, 
 
 46, 94. House v. MoKenney, 
 
 Aetitms, &c., 6. Liquor, 321. 
 
 Assuitipsit, 32. Case, 83. Contract, 109. Corp. 
 
 Ill, 112, 113, 116. Pleading, 403, 404. 
 See Coffin v. Kich. 
 Liquor, 322. Trespass, 517. 
 Agency, 11, 13: Evidence; 210, 212. . 
 Evidence, 198, 207. 
 Assumpsit, 85. 
 Liquor, 325. 
 
 Agency, 12. Attorney, 45. Equity, 165. 
 New Trial, 86S. 
 Execution, 225. Title, &c., 508. 
 
 Insurance, 276, 278. 
 MiUs, 840. 
 Costs, 120, 121. 
 Trespass, 515. 
 Equity, 168, 177, 182. 
 Equity, 170, 171. 
 
 Fires, 239, 240. New TrialSj 868. Practice, 426, 
 427. 
 
 Deed, 136, 137, 139, 143. Easement, 163, 164. 
 Flats, 241. Prescription, 433. 
 
 Eailroad, 449. 
 
 Mortgage, 350, 351j 352: 
 
 Costs, 121. 
 
 Attachment, 42, 43. Shipping, 488. 
 
 Officer, 376. 
 
 Husband, &c., 259. 
 
 Replevin, 461. 
 
 Case, 82. Prescription, 438. Trespass, 514. Way, 
 
 544 549. 
 Marriage,' 330, 331. PaUper, 894. 
 Officer, 371. Waiver, 538. Writ, 559. 
 
 Abatement) 2. Pleading, 402. 
 
 Corp. 116. Insurance, 288. 
 Deed, 187, 148. Flats, 241. 
 Sale, 471. 
 Equity, 185. 
 Assignment, 29. 
 
 Bank, 53. 
 
 Limitations, 820. 
 
 Amendment, 17. Usury, 535. 
 
 Agency, 14. Attorney, 45. Evidence, 197, 212. 
 
 Mortgage, 845, 351. 
 Deposition, 148. Evidence, 213. Replevin, 463. 
 Assumpsit, 31. 
 
 Joint Stock Association, 290. Pleading, 402. 
 Way, 549. 
 Tax, 501. 
 
 Estoppel, 189. Lien, 315. 
 Equity, 178, 182. Partnership, 383. 
 Guardian, &c., 254, 255. Trustee Process, 528. 
 Condition, 93, 94. Waiver, 588. 
 Officer, 370, 371. Poor Debtor, 415. 
 Executor, &c., 236. Way, 547. 
 Damages, 128. 
 
 Audtion, &c., 47. Frauds, Stat, of, 251*. 
 Lien, 213. Sale, 470. Title, &c., 507. Trover, 
 
 5l9, 521, 528. Waiver, 438. 
 Execution, 231. Real Action, 45i. 
 Costs, 120. 
 Betting, 57. Interest, 289. 
 
xxu 
 
 TABLE OF CASES. 
 
 .52, 304 Hovey v. Chase, 
 
 49, 269. Hover v. Hai-mon, 
 
 51, 62. Hovey v. Hobson, 
 
 53, 451. Hovey v. Hobson, 
 
 55, 256. Hovey v. Hobson, 
 
 55, 142. Hovey v. Page, 
 
 48, 428. How v. How, 
 
 49, 288. Howardv. Am. Peace) 
 
 Society, J 
 
 46, 332. Howe v. Aroostook Co. 
 
 Commissioners, 
 53, 130. Howe v. Clancey, 
 
 44, 233. Howe v. Farrar, 
 
 56, 291. Howe v. Sbaw, 
 51, 226. Howe v. WiUis, 
 
 53, 54. Howland v. Burling- 
 ton, 
 
 49, 143. Howland v. Pen. Co. 
 Commissioners, 
 
 45, 72. Hughes v. Farrar, 
 
 46, 34. Hull V. Sturdivant, 
 45, 216. Humphrey v. Warren, 
 51, 41. Humphrey v. Newman, 
 
 Contract, 101. Evidence, 195, 199, 207. Excep- 
 tions, 220, 221. Insane Persons, 271. New 
 Trial, 364, 366. Practice, 426. 
 
 Guardian, &o., 255. 
 
 Maintenance, &c., 328. 
 
 Deed, 137. 
 
 Evidence, 197, 207, 211. Exceptions, 221, 222. 
 Insane Persons, 271. New Trial, 366. Prac- 
 tice, 432. 
 
 Breach of Promise, &c., 80. 
 
 Practice 429 
 
 Charitable Uses, 86. Devise, &c., 151, 152. Sup. 
 Jud. Court, 498. 
 
 Co. Commissioners, 122. Way, 550. 
 
 Assumpsit, 34. 
 
 Evidence, 215. Trespass, 518. 
 
 Keplevin, 461. 
 
 Deed, 134, 135. Execution, 225. 
 
 52, 502. Humphries v. Parker, 
 
 48, 251. Hunkins v. Palmer, 
 55, 290. Hunt v. Columbian 
 
 Ins. Co., 
 
 49, 556. Hunter v. Cole, 
 47, 419. Hunter v. Stewart, 
 46, 83. Huntress v. Tiney, 
 44, 182. Husten v. Richards, 
 46, 154. Hutchinson v. Hutch- 
 inson, 
 
 Pauper, 386. 
 
 Certiorari, 85. Co. Com'rs, 123. Statute, 496. 
 
 Attachment, 37. Eevised Stats., 467. Stat. 496. 
 
 Equity, 179, 180. 
 
 Trustee Process, 526. 
 
 Estoppel, 189. Husband, &c., 260. Mortgage, 
 346. Trespass, 517. 
 
 Damages, 129. Evidence, 196. Law, &c., 308, 
 309. Libel, &c., 312. Maintenance, &c., 328, 
 329. New Trial, 365. Practice, 422. 
 
 Poor Debtor, 414. 
 
 Corporation, 111. Receiver, 455. 
 
 Appeal, 21. Costs, 118. S. J. Court, 498. 
 
 Case, 82. Damages, 129. 
 
 Exceptions, 218. Partition, 379. Practice, 418. 
 
 Shipping, 487. 
 
 Bills, &c., 66. Frauds, Stat, of, 252. 
 
 56, 531. Hsley v. Port. & Roch- 
 ester R. R. Co., Equity, 185. 
 51, 352. Ingalls v. Auburn, Way, 550. 
 47. 530. IngaUs v. Cole, Corp., 112. 
 
 Limitations, 317. Statute, 492. 
 
 48, 147. 
 
 54, 503. 
 
 52, 412. 
 
 56, 9. 
 45, 106. 
 48, 353. 
 
 53, 128. 
 56, 107. 
 53, 209. 
 
 Jackson v. York & C. 
 
 K. R. Co., 
 Jacobs V. Copeland, 
 Jameson v. And. R. R. 
 
 Co., 
 Jarvis v. Deane, 
 .Jarvis v. Noyes, 
 Jay V. Carthage, 
 
 J. 
 
 Bond, 75, 76. Coupons, 121. Pleading, 403. 
 Trustee Process, 530. 
 
 New Trial, 362, 363, 366. 
 
 Estoppel, 189. Mortgage, 358. 
 
 Shipping, 485. 
 
 Amendment, 18. Insane Hospital, 270, 271. Judg- 
 ment, 294. Nonsuit, 367. Town, 509, 512. 
 Jay V. Carthage, Pauper, 392. 
 
 Jay V. East Livermore, Evidence, 195, 203, 208, 209. 
 Jenks V. Mansur, Assumpsit, 34. 
 
TABLE OF CASES. 
 
 XXIU 
 
 53, 20. 
 
 55, 538. 
 51, 233. 
 
 56, 32. 
 
 54, 301. 
 
 51, 386. 
 47, 474. 
 45, 419. 
 54, 393. 
 
 47, 182. 
 
 52, 320. 
 54, 417. 
 45, 306. 
 
 48, 104. 
 56, 557. 
 51, 78. 
 50, 248. 
 
 45, 168. 
 
 Jenness v. Mt. Hope 
 
 Ins. Co., Cont., 102. Frauds, Stat, of, 252. 
 
 Jewett V. Gage, Swine, 500, 501. 
 
 Jewett V. Whitney, Cases, &o., 84. Evidence, 204. 
 
 232. 
 Johnson v. Thorndike, Equity, 166. 
 Jones V. Buck, Execution, 227, 230. 
 
 Jones V. Eaton, Amendment, 17. Review, 466. 
 
 Jones V. Larrabee, Will, 553. 
 Jones V. Oxford County,County, 122. Way, 545, 546. 
 
 Execution, 225, 
 
 Jones V. Perkins, 
 Jones V. Spencer, 
 Jordan v. Jordan, 
 Jordan v. Keen, 
 Jordan v. McKenney, 
 Jordan v. McKenney, 
 Jordan v. Parker, 
 Jordan v. Stevens, 
 Jose V. Hewett, 
 
 Evidence, 201, 202 
 
 Poor Debtor, 416. 
 
 Husband, &c., 261. 
 
 Attachment, 40. 
 
 Appeal, 21. Eecognizance, 456. 
 
 Actions, &o., 7. Assumpsit, 31. 
 
 Replevin, 461. 
 
 Deed, 136. Equity, 165, 182, 183. 
 
 Bank, 52. Deed, 136. Fraud, &c., 247. 
 gage, 343. 
 
 Joyce V. Maine Ins. Co.,Evidence, 198. Insurance, 276, 286, 287. 
 Judkins v. Reed, Collector, 88. Tax,. 502. 
 
 Betting, 57. 
 
 Mort- 
 
 49, 207. Kaler v. Beaman, 
 46, 467. Keen v. Briggs, 
 
 53, 144. Keen v. Jordon, 
 45, 613. Keene v. Lord, 
 
 50, 470. Kelley v. Hill, 
 
 50, 455. Kelley v. Jenness, 
 
 54, 173. Ken. & Port. R. R. Co. V. 
 
 Port.&Ken.R.R.Co. 
 
 55, 107. Kennedy v. Bradbury, 
 
 53, 160. Kent v. Judkins, 
 52, 198. Kersey v. Bailey, 
 
 54, 399. Keyes v. Winter, 
 45,461. Kidder v.Blaisdell, 
 
 48, 551. Kidder V. Knox, 
 
 56, 150. Kilgore v. Wood, 
 
 50, 308. Kimball v. Bates, 
 55, 147. Kimball v. BiUings, 
 
 53, 263. KimbaU v. Crocker, 
 55, 494. Kimball v. Lewiston 
 
 Steam Mills Co,, 
 
 54, 398. Kingfield v. Pullen, 
 47, 91. Kingley v. Cousins, 
 
 51, 518. Kneeland v. FuUer, 
 
 47, 468. Knight v. Brown, 
 
 48, 320. Knight v. Frank, 
 48, 533. Knight v. Herrin, 
 
 55, 132. Knight v. Macomber, 
 
 48, 158, Knight v. Mayberry, 
 
 56, 234. Knight v. P. S. & P. R, 
 
 R. Co., 
 
 66, 228. Knowlton v. Chick, 
 
 46, 489. Knowlton v. Johnson, 
 
 48, 373. Knox v. Tucker, 
 
 K. 
 
 Deed, 143, 144. Easement, 164. 
 
 Execution, 224, 229. 
 
 Exceptions, 219. Law, &c., 309. Trover, 520. 
 
 Execution, 224, 233. Judgment, 296. 
 
 Evidence, 216. Trust, 533. 
 
 Mortgage, 345, 346. Trust, 532, 533. 
 
 ,Equify, 173. 
 
 Attachment, 38. 
 
 Way, 549. 
 
 Widow's Allowance, 552. 
 
 Bills, &c., 63, 73. 
 
 Deposition, 146, 147, 148. Estoppel, 188. Evi- 
 dence, 194,195. Jud. Kotice, 293. Practice, 421. 
 Proprietors, &c. 440. 
 
 Agency, 11, 12. Liquor, 322. 
 
 Joint Tenant, <&c., 291. Trover, 520, 522. 
 
 Maintenance, 328. New Trial, 364. 
 
 Trover, 522. 
 
 Costs, 119. Devise, &c., 150. 
 
 Mortgage, 347. 
 
 Costs, 117. 
 
 Bankruptcy, 54. Constitutional Law, 97. 
 
 Actions, &c., 8, 9. Cont, 108. Frauds, Stat, of, 
 
 251. Husband, &c., 260. 
 Witness, 557. 
 Costs, 117. Usury, 534. 
 Attachment, 39, 43. Damages, 127. OfBcers, 374, 
 
 376. Trespass, 517. Trust, 533. 
 Evidence, 214. Judgment, 296. Limitations, 317, 
 
 318, 319. 
 Equity, 178. Trespass, 514. 
 
 Bailment, 49, 50, 51. 
 
 Probate Bond, 435. 
 
 Descent, &c., 148. Probate Court, 436. 
 
 Fence, 238, 239. 
 
XXIV TABLE OF CASEa. 
 
 L. 
 
 53, 211. Laberee v. Carleton, Condition, 93, 94 Deed, 134. 
 
 53, 505. Lambard v. Ken. Coun- 
 
 ty Commissioners, Tax, 504. 
 
 52, 544. Lambert v. Lambert, Equity, 169, 172. Mortgage, 353, 354. 
 
 48, 196. Lambert v. Winslow, Actions, &o., 7. Payment, 398. ' 
 
 54, 487. Lancey v. Clifford, MiUs, 337, 338. Way, 542. 
 56, 562. Lancey v. Phoeriix Ins. 
 
 Co., Insurance, 276. 
 
 47, 593. Lane v. Goodwin, New Trial, 36^. 
 
 49, 252. Lane v. Tyler, Joint Tenant, (fee, 291. Partnersl^p, 382, 383, 384. 
 45, 193. Larrabee v. Rideout, Partition, 378. 
 
 54, 156. LaugUig v. Uaton, Abatement, 3. Husband, &c., 261. Married 
 
 Woman, 333, 334. 
 56, 443. Lawler v. Baring Boom 
 
 Co., Boom, 76. 
 
 54, 196. Lawrence v. Chase, Amendment, 17. Damages, 131. Exceptions, 221. 
 
 Praufis, 3tat. of. 251. 
 56, 187. Lawrence v. Cooke, Breach ' of Promise, ^o., 80. Evidence, 213. 
 
 Frauds, Stat, of, 252. 
 44,427. Lawrence V. Ford, Actions, &c., 9. Costs, 120. Offer, &c., 370. 
 
 53, 110. Lawrence v. Eokes, Cases, &c., 84. Equity, 169, 170. 
 
 48, 468. Lawrence v. Small, Penal Action, 399. 
 
 47, 548. Leach v. Marsh, Cases, &c, 84. Error, 185. Insane Persons, 271. 
 48,269. Leary V. Blanchard, Bills, &c., 60, 66, 71. Evidence, 201, 204. Insur- 
 ance, 278. 
 
 49, 337. Leathers v. Cooley, 'Evidehce, 209. Recognizance, 456. Record, 457. 
 53,561. Leathers V. Greenacre, Will, 553, 564. 
 
 53, 147. Leavitt v. Pratt, Estoppel, 190. Frauds, Stat, of, 251. 
 45,172. Lee V. Kimball, Sale, 472. Shipping, 487. 
 
 55, 491. Lee v. Starbird, Bills, &c., 68, 69. 
 
 56, 79. Leighton v. Colby, Costs, 117. 
 
 49, 100. Leighton v. Pearson, Poor Debtor, 413, 416. 
 
 52, 365. Lemont v. Lord, Shipping, 484, 486, 488. 
 
 49, 355. Levett v. Jones, Poor Debtor, 413. 
 
 48, 451. Lewey's Is. E. E. Co. v. 
 
 Bolton, Actions, &o., 7. Railroad, 446. Town, 371. 
 
 51, 108. Lewis v. Brewer, Certiorari, 85. Poor Debtor, 411, 415. 
 
 54, 484. Lewis v. Chadbourne, Fishery, 240. 
 
 52, 492. Lewis v. Monmouth 1 Amendment, 17. Evidence, 212. Insurance, 281, 
 
 M. P. Ins, Co., J 282, 288. 
 
 44, 332. Lewis v. Sawyer, Assumpsit, 33. 
 
 44, 72. Lewis v. Soper, Depo., 147. Hoop-poles, 258. Practice, 431. 
 
 49, 322. Lewis v. Warren, Bond, 76. Costs, 120. Judgment, 293, 
 
 47, 481. Lewiston v. Fairfield,' Complaint, 92. Justice, &o., 299, Reform School, 
 
 "457. 
 
 54, 402. Lewiston Falls Manufg. 
 
 Co. V. Franklin Co., Equity, 174. 
 
 48, 316. Libbey v. Talford, Lease, 310. 
 
 50, 267. lime Rock Bank v. 
 
 Hewett, ' Evidence, 198, 215. 
 
 52, 51, Lime Rock Bank v. 
 
 Hewett, Biills, &G., 62, 63. 
 
 52, 531. Lime Rock Bank v. ) Banl^^ 53. BiUs, &c., 72. Evidence, 19g, 21?, 216. 
 
 Hewett, J Exceptions, 221. Practice, 434. 
 
 56, 197. Lincoln V. Chadboume,Mills, 338. 
 
 51, 321. Lincoln v. Strickland, Attachinent, 40. 
 
 53, 324. Lisbon V. Bowdoi% Town, 513. 
 46. 31. Litchfield V. Dyer, BiUs, &c., '67. 
 
 49, 107. Litchfield v. Litchfield, Waiver, 538. 
 
 50, 475. Littlefield v. Brooks, Domicil, l55. Tax, 502. 
 48, 64. Littlefield v. Curtis^ Bills, &c., 71. 
 
 55, 469. Livermore v. Peru, Mistake, 341. Pauper, 887, 392. 
 50, 318. Long v. Hopkins, Land Agent, &c., 302. 
 
 45, 75. Longfellow v. Andrews,BiIls, &c., 65. 
 
TABLE OF CAS:^3, 
 
 XXV 
 
 54, 240. Longfellow v. Long 
 
 feuow, 
 
 51, 375. Look v. Industry, 
 
 55, 103. Look V. Norton, 
 51, 196. Lord v. WlUard, 
 
 51, 367. Lothrop v. Foster, 
 45, 516. Loud v. Merrill, 
 
 47, 351. Loud v. Merrill, 
 
 50, 239. Lovell v. Farrington, 
 
 48, 263. Lovell v. Kelley, 
 
 50, 334. Levering v. Lamson, 
 45, 472. Lovejoy v. Augusta M. 
 
 F. Ins. Co., 
 
 48, 377. Lovejoy v. Lunt, 
 53, 45. Low V. Marco, 
 
 52, 588. Lowe v. Weld, 
 
 45, 112. LoweU v. Haskell, 
 
 56, 414. Luce v. Burbank, 
 45, 411. Ludden v. Eincaid, 
 
 51, 563. Lumberman's Bank v. 
 
 Pratt, 
 
 44, 85. Lumbert v. Lumbert, 
 
 53, 100. Lynch v. Swanton, 
 
 45, 474. Lyon v. Parker, 
 
 49, 29. Lyons v. Woodward, 
 
 Landlord, &c., 303, 305^-306. Limitations, 318. 
 
 Pleading, 409. 
 Assumpsit, 34. Demand, 146. Tax, 505. 
 Trespass, 516. 
 Assumpsit, 32. 
 
 Dower, 159, 160. Estoppel, 189. Evidence, 201. 
 Bills, &o., 70. Costs, 116. Usury, 534. 
 Bills, &c., 63. 
 
 Equity, 172. Mortgage, 353. 
 Error, 185, 186. Keoord, 457. Review, 465. 
 Poor Debtor, 412. 
 
 Insurance, 273. 
 
 Tax 504. 
 
 Equity, 178, 179. Husband,; &o., 260. Married 
 
 Woman, 
 Tax, 504. 
 Sui-ety, (fee, 499. 
 Bastardy, 55. 
 Sale, 473. 
 
 Bills, &c., 64. Partnership, 384. 
 
 Lien, 314. 
 
 Judgment, 295. 
 
 Bond, 75, 76. Covenant, 124 
 
 Nuisance, 369. y, 
 
 ''■i- 
 
 45, 250. 
 56, 321. 
 
 46, 367. . 
 
 49, 419. 
 56, 450. 
 
 50, 301. 
 
 49, 448. 
 
 53, 523. 
 
 54, 314. 
 
 46, 346. 
 
 55, 549. 
 
 50, 220. 
 
 56, 542. 
 54, 537. 
 
 51, 308. 
 
 50, 62. 
 
 45, 412. 
 
 47, 495. 
 54, 476. 
 
 51, 366. 
 53, 419. 
 
 47, 18. 
 
 52, 82. 
 
 Mace V. Cushman, 
 Machias Hotel Co. v. 
 
 Fisher, 
 Madden v. Tucker, 
 
 M. 
 
 Descent, &c., 148. Statute, 495. 
 
 Corp., 114. Lease, 311. Practice, 432. 
 
 Cases, &o., 84. Deed, 139. Evidence, 200. Law, 
 
 &c., 308. 
 Bills, &c., 62, 71. Evidence, 206. 
 
 Magoun v. Walker, 
 Mahoney v, Lincoln- 
 
 viUe, Bounty, 79. 
 
 Maine M. M. Ins. Co. v. 
 
 Neal, Exceptions, 219. Insurance, 279. 
 
 Maine M. M. Ins. Co. v. 
 
 Swanton, Insurance, 279. 
 
 Manchester v. W. Gardi- _ 
 
 ner. Pauper, 387, 388. 
 
 Mansur v. CoiBn, Abatement, 1. Tr. Process, 524, 530, 
 
 Mansur v. Keaton, Accord, &c., 5. Payment, 396. 
 Marco v. Low, Equity, 166. Writ, 560. 
 
 Mariner's Baii v. Sew- 
 
 Writ, 560. 
 
 all, 
 
 Marr v. Clp,rk, 
 Marrett v. Equitable 
 
 Ins. Co., 
 Marshall v. Oakes, 
 
 Marshall v. Wing, 
 
 Marston v. Marston, 
 Marston v. jlaiston, 
 Marston v. Marston, 
 
 Bank, 52. 
 
 Certiorari, 86. Poor Debtor, 413. 
 
 Bills, &c., 61. Trustee Process, 526. 
 Exceptions, 220. Husband, &c., 259. Practice. 
 
 425. 
 Infant, 268. Pleading, 405. Eeal Action, 450, 
 
 452. Tender, 506. 
 Mortgage, 344, 355. 
 Devise, &c., 151. 
 Deed, 137. Fraud, &c., 247, 248. Eeal Action, 
 
 451. Seisip, &c., 478. ■ . ' 
 
 Jud. Notice, 293. Pleading, 404. Real Actipn, 451. 
 
 Martin v. Martin, 
 Martin v. Penob. M. F. 
 
 Ins. Co., Statute, 495. 
 
 Mason V. Sprague, Bond, 74. Land Agent, ifec., 300, 301. Title, &c., 
 
 507. 
 Mason v. York & C. K. 
 
 E. Co., Equity, 168. Mortgage, 344. 
 
 C 
 
XXVI TABLE OF CASES. 
 
 49, 586. Matthews v. Matthews, Partition, 379. 
 
 47, 487. Maxwell v. Potter, Costs, 120. Practice, 422. Trespass, 578. ver- 
 
 dict, 536. 
 
 48, 397. May v. Thomas, Sale, 473. 
 56, 342. Mayberry v. Standish, Way, 542. 
 
 5,3, 511. Maynard v. Tabor, Contract, 102, 103. 
 
 56, 538. McCarthy v. Mansfield, Bond, 76. Exceptions, 219. 
 
 46, 239. McKeen v. Frost, Will, 554. Witness, 556. 
 
 51, 389. McKeen v. Parker, Pleading, 405. 
 
 51, 402. MoLarren v. Brewer, Equity, 166, 176, 177. Title, &o., 508. 
 
 56, 289. McLaughlin v. Doane, New Trial, 363. 
 
 51, 85. McLellan v. Osborne, Shipping, 483. 
 
 51, 118. McLellan v. Osborne, Costs, 117, 118. Equity, 172. 
 
 52, 402. McLellan y. Pennell, Evidence, 211. Partnership, 385. 
 46, 91. McMillan v. Hobson, Scire Facias, 476. 
 
 55, 528. Mears v. Bickford, Bounty, 78. 
 
 52, 545. Mechanics Bant v.Hal- 
 
 lowell. Payment, 397. State Treas., 492. 
 
 49, 335. Mellows v. Hall, Costs, 120. 
 
 49, 99. Merchants B'nk v. Lord,Poor Debtor, 414, 416. 
 52, 412. Merrill v. And. R. K. 
 
 Co., New Trial, 362. 
 
 48, 285. Merrill v. Farmers & 
 
 Mech. M. F. Ins. Co., Assignment, 28. Insurance, 273, 274. 
 
 49, 40. MerriU V. Hinckley, Forcible Entry, &c., 242. Kecognizance, 456. 
 
 48, 140. MerriU v. Noble, Assumpsit, 31. Judgment, 296. Limitations, 317. 
 55, 374. MerriU v. Shattuck, Divorce, 154. 
 
 55, 370. MerrUl v. Shattuck, Divorce, 159, 160. 
 
 52, 65. MerrUl v. Stanwood, BiUs, &c., 68. Cont., 108. 
 
 55, 540. Meservey v. Gray, Cont., 103. Liquor, 323. 
 
 51,198. Metcalfv. Yeaton, Amendment, 15. Evidence, 204. Exceptions, 220. 
 
 Insolv. Laws, 273. 
 
 50, 529. Milford v. Orono. , Soldiers' Aid, 489. 
 
 46, 230. Millay v. Wiley, WiU, 554. 
 
 51, 9. MiUer v. Morrill, Eailroad, 447. 
 
 56, 128. Miller v. Moses, Bond, 76. Estoppel, 190. Eeplevin, 462, 463. 
 49,527. Millikenv.Whitehouse,Amendment,15,16. Bills, &o., 59. Corp., 112,113, 
 
 116. Judgment, 294. Payment, 397. Statute, 495. 
 
 47, 320. MiUs v. GUbreth, Arrest, 26. Evidence, 204, 205. Exceptions, 217. 
 
 Officers, 371. Practice, 424. 
 
 49, 65. Mills V. Merryman, Executor, &o., 235. 
 
 44, 79, MiUs V. Eichardson, Damages, 128. Joint Tenant, &o., 290, 292. Tres- 
 pass, 514. 
 
 50, 57. MiUs V. Spaulding, Execution, 225. Homestead, 258. 
 49, 330. Min. and School Fund 
 
 V. Eowell, Estoppel, 192. Pleading, 408. 
 
 44, 286. MitcheU v. Burnham, Mortage, 342, 347, 352. 
 
 45, 2.34. Mitchell v. Kendall, Assignment, 29. Pleading, 402. 
 
 45, 496. Mitchell v. Rockland, Impnessment, &c., 262. Quarantine, 442. Town, 
 
 512. 
 
 52, 118. MitcheU v. Rockland, Actions, &c., 9. Impressment, &c., 262. Town, 
 
 509, 510, 512. 
 45, 104. MitcheU v. Union Ins. 1 Abatement, 3. Insurance, 273, 277. Practice, 418. 
 Co., ) Seal, &c., 477. 
 
 54, 252. Monroe v. Frankfort, Pauper, 388. 
 
 55, 55. Monroe v. Jackson, Pauper, 386, 387, 388, 389, 395. 
 
 48, 555. Monroe v. Matthews, Cont. 106. Evidence, 201. Officer, 374. 
 
 44, 57. Moody v. Hutchinson, Land Warrant, 306. Probate Court, 435. 
 .53, 551. Moore v. Gibson, Lien, 314. MiUs, 337. Real Action, 454. 
 
 52, 162. Moore v. PenneU, Officer, 375. Partnership, 385. Trespass, 517. 
 
 45, 493. Moore v. EoUins, Dover, 157. Estoppel, 187. 
 47, 88. Moore v. Shaw, Exceptions, 218. MiUs, 339. 
 
 55, 183. Moore v. Tufts, See Bunker v. Tufts. 
 49, 566. MorrUl v. Bunker, Mortgage, 359. 
 
 56, 458. MorriU v. Noyes, Mortgage, 361. Trover, 524. 
 49, 566. Morrill v. Sanford, Mortgage, 359. 
 
 55, 117. Monson v. Fairfield, Domicil, 155. Pauper, 388. 
 44, 97. Monson v. Corliss, Poor Debtor, 415. 
 
TABLE OF CASES. 
 
 XXVU 
 
 48, 161. Morse v. Mayberry, 
 
 55, 46. Morton v. Frankfort, 
 
 46, 520. Morton v. Gloster, 
 
 55, 24. Morton v. Young,- 
 
 52, 31. Moulton v. Edgoomb, 
 
 50, 100. Moulton v. Lawrence, 
 
 51, 127. Moulton v. Sanford. 
 
 52, 237. Moulton v. Witherell, 
 46, 411. Mt. Desert v. Cranber- 
 ry Isles, 
 
 52, 541. Mudgett v. Gager, 
 
 48, 463. Munroe v. Gates, 
 
 48, 458. Monroe v. Stiokney, 
 
 48, 462. Monroe v. Stiokney, 
 
 44, 342. Murray v. Joyce, 
 
 52, 54. Mustard v. Robinson, 
 
 54, 361. Muzzey v. Davis, 
 
 55, 108. MysroU v. Violette, 
 
 Actions, &o., 7. Practice, 420. 
 
 Way, 548. 
 
 Lord's day, 327. Trover, 519. 
 
 Estoppel, 193. Maintenance, 329. 
 
 Devise, &o., 149. Limitations, 318. Title, &c., 509. 
 
 Sale, 470, 473. Title, &c., 507. 
 
 Way, 547. 
 
 New Trial, 366. Trover, 520, 523. 
 
 New Trial, 862. 
 
 Equity, 172. 
 
 Mills, 336. 
 
 Partition, 379, 380. 
 
 Mills, 336, 
 
 Bastardy, 54, 55. Witness, 556. 
 
 Equity, 166. 
 
 Trespass, 516. Way, 550. 
 
 Execution, 227. 
 
 51, 417. Nash v. Drisco, 
 46, 168. Nash v. Eeed, 
 48, 123. Nason v. Staples, 
 
 48, 566. Neally v. Judkins, 
 
 50, 231. Newbert v. Cunning- 
 
 ham, 
 
 52, 180. Newhall v. Union M. F. 
 
 Ins. Co., 
 
 46, 418. New Haven Cop. Co. v, 
 
 Brown, 
 
 47, 520. Newman v. Jenne, 
 
 55, 172. New Portland v. King- 
 
 field, 
 
 45, 405. New Vineyard v. Phil- 
 lips, 
 
 45, 220. Nichols v. Frothing- 
 ham, 
 
 51, 34. Noble v.Edes, 
 
 48, 140. Noble v. Merrill, 
 
 53, 163. Norcross v. Norcross, 
 
 50, 87. Norcross v. Stuart, 
 
 51, 503. Norcross v. Thoms, 
 
 49, 385. Norridgewock v. Solon, 
 
 50, 214. North Bank v. Brown, 
 
 52, 386. North Berwick Co. v. 
 
 NewEng.F.&M.Ins. 
 Co. 
 
 45, 133. North Yarmouth v. 
 
 SkUlings, 
 
 54, 189. Norton v. Kidder, 
 
 56, 211. Norton v. Nye, 
 
 44, 80. Nowell v. Sanborn, 
 
 55, 408. Noyes v. Loring, 
 52, 115. Noyes v. Rich, 
 48, 168. Nutter v. Stover, 
 
 46, 82. Nutting v. Goodridge, 
 
 N. 
 
 Cont., 107. Law, &c., 307. Timber, 506. 
 
 Will, 553, 554. Witness, 556. 
 
 Habeas Corpus, 256. Mittimus, 341. Replevin, 
 
 &c., 463. 
 Attachment, 39. 
 
 Attorney, &c., 46. Limitations, 318. Officers, 374. 
 
 Bond, 75. Insurance, 277. 
 
 Set-off, 482. 
 Replevin, 460. 
 
 Pauper, 895, 396. 
 
 Pauper, 392. 
 
 Bills, &c., 58, 60. Law, &o., 307. 
 
 Bills, &c., 68. Limitations, 319. Payment, 397. 
 
 Judgment, 296. Limitations, 317. Tr. Process, 528. 
 
 Bailment, 49, 50. 
 
 Executor, &c., 237. Husband, &c., 261. 
 
 Nuisance, 369. 
 
 Overseers, &c., 877. Pauper, 889, 390. 
 
 Judgment, 297. Pleading, 406. 
 
 Evidence, 196, 216. Insurance, 280, 281. 
 
 Const. Law, 98, 99. Town, 513. 
 
 Assumpsit, 34. Exceptions, 221. Payment, 397. 
 
 Money, 341. Officer, 373. 
 
 Review, 465. 
 
 Assumpsit, 32. Case, 83. 
 
 Equity, 169, 183. Mortgage, 346, 351. 
 
 Bills, &c., 59, 64, 65, 66, 68, 71. Evidence, 212. 
 
 Libel, &c., 312. 
 
 o: 
 
 53, 206. Oliver v. Berry, Limitations, 318. 
 
 53, 500. Oroutt v. Kittery Pt. B. 
 
 Co., Bridge, 81. ToU-Bridge, 509. 
 
xxviu 
 
 TABLE OF CASES. 
 
 56, 
 
 47. 
 
 44 
 
 49. 
 
 49, 
 
 26. 
 
 52, 
 
 287. 
 
 56, 
 
 483. 
 
 51, 
 
 570. 
 
 48, 
 
 410, 
 
 54, 
 
 104. 
 
 45. 
 
 602. 
 
 Orland V. Ellsworth, Pauper, 390. Soldiers' Aid, 490. 
 
 Orono V. Wedgewood, Collector, 87. Pleading, 408. 
 
 Orono Bank v. Wood, Bills, &c., 63. Damages, 130. 
 
 Orr V. Moses, Will, 555. 
 
 Orr T. Skofleld, Libel, &c., 312. 
 Orrington v. Penob. Co. 
 
 Comfrs, Appeal, 21. Way, 545. 
 
 Osgood V. Holyoke, Attachment, 39. Statute, 492. 
 
 Otis Y. Ford, Trustee Process, 528. 
 
 Oxnard v. Blake, Mortgage, 358. 
 
 P. 
 
 55, 456. 
 
 50, 376. 
 
 53, 174. 
 
 54, 319. 
 
 47, 238. 
 53, 52. 
 
 56, 411. 
 56, 317. 
 56, 50. 
 46, 325. 
 45, 316. 
 
 55, 362. 
 
 44, 459. 
 
 45, 54. 
 
 56, 155. 
 
 52, 260. 
 
 46, 414. 
 
 53, 410. 
 49, 255. 
 55, 39. 
 
 51, 594. 
 55, 53. 
 
 54, 203. 
 
 47, 355. 
 
 55, 42. 
 47, 308. 
 53, 526. 
 
 56, 317. 
 
 52, 33. 
 
 Packard v. Lewiston, 
 Packard v. Tisdale, 
 Page V. Danforth, 
 Page V. Esty, 
 
 Page V. Weymouth, 
 Pame v. Dwinel, 
 Paine v. Goodwin, 
 Paine v. Grray, 
 Paine v. McGUnchy, 
 Palmer v. Bangor, 
 Palmer v. Tucker, 
 Parker v. Hall, 
 Parker v. Tuttle, 
 Parker v. Vose, 
 
 51, 410. 
 
 48, 351. 
 
 52, 456. 
 
 56, 575. 
 56, 575. 
 
 54, 484. 
 
 49, 488. 
 47, 573. 
 
 49, 31. 
 
 55, 453. 
 
 51, 370. 
 47, 109. 
 
 Statute, 493. Tax, 501, 502, 503. 
 
 Collector, 89. 
 
 Amendment, 15, 17. Assumpsit, 32. Error, 186. 
 
 Deed, 143, 145. Judgment, 295. Lease, 311. New 
 Trial, 364. 
 
 Assignment, 29. Time, 506. 
 
 Payment, 397. 
 
 Probate Court, 439. 
 
 Bastardy, 55. 
 
 Assumpsit, 32. 
 
 Witness, 556. 
 
 Lien, 313, 314, 316. Waiver, 538. 
 
 Officer, 375. Replevin, 462, 463. 
 
 Bills, &c., 66. Estoppel, 190. 
 
 Agency, 11. Shipping, 483. Trust, 533. 
 Parkhurstv.Cummings,B3ls, &o., 59. Costs, 119. Interest, 289. Mort- 
 gage, 349, 355. 
 
 MiUs, 337. 
 
 Evidence, 200. Mortgage* 358. Replevin, 460. 
 
 Bills, &c., 63. 
 
 Bills, &o., 60, 65. 
 
 Bills, &c., 74. 
 
 Physician, &c., 401. 
 Patterson v. 'Chandler, Execution, 227, 228. 
 Patterson v. Eames, Poor Debtor, 411, 415. 
 Patterson v. Stoddard, Assumpsit, 31. Landlord, &c., 302, 305. 
 Patterson v. Wilkinsbn,Libel, &c., 312. Pleading, 407. 
 Patterson v. Teaton, Deed, 133, 134. Equity, 180. 
 
 Actions, &c., 9. Evidence, 214. 
 
 Bastardy, 55. 
 
 Betterments, 56. Deed, 144. Evidence, 212. New 
 Trial, 364. Seisin, &c., 478,, 480. Title, &e., 509. 
 Verdict, 537. 
 
 Devise, &c., 150. Mortgage, 344, 348, 349, 355. 
 Remainder, 459. 
 
 Equity, 177. Release^ 459. 
 
 Pleading, 404. 
 
 Parks V. Morse, 
 Partridge v. Swazey, 
 Pattee v. McCriUis, 
 Patten v. Moses, 
 Patten v. Pearson, 
 Patten v. Wiggin, 
 
 Paul v. Currier, 
 Payne v. Gray, 
 Peabody v. Hewett, 
 
 45, 90. Pearce v. Savage, 
 
 Pearce v. Savage, 
 Penley v. Whitney, 
 Penob. R. B. Co. v. 
 
 Weeks, 
 Percival v. Harlow, 
 Peroival v. Hichborn, 
 Perkins v. Cushman, 
 
 Judgment, 293, 295. 
 
 Assumpsit, 33. 
 
 Assignment, 28. Assumpsit, 33. Fraud, &c., 245. 
 
 Assumpsit. 33. Bills, &e., 70. Evidence, 196. 
 
 Practice, 429. Rules of Court, 469. 
 Perkins V. Hitchcock, Actions, &c., 8. Assignment, 29. Frauds,, Stat. 
 
 of, 250. Practice, 425, 432. 
 
 Perkins v. P. S. & P. 
 
 R. R. Co., 
 Perley v. Oldtown, 
 Perry v. Kennebunk- 
 
 port, 
 Pettingill v. And. R.R. 
 
 Co., 
 PettingiU v. Merrill, 
 
 Bailment, 48, 49. Damages, 130. 
 Paupe*, 389, 394. 
 
 Costs, 117. 
 
 Attachment, 38. TrUste^ Process, 52t. 
 Replevin, 460. Title, &c., 507. 
 
TABLE 01' CASES. 
 
 XXIX 
 
 48, 
 
 319. 
 
 52, 
 
 271. 
 
 54, 
 
 405. 
 
 55, 
 
 570. 
 
 80, 
 
 570. 
 
 46, 
 
 200. 
 
 47; 
 
 607. 
 
 53, 
 
 851. 
 
 47; 
 
 173. 
 
 45, 
 
 481. 
 
 48 
 
 339. 
 
 44, 
 
 154. 
 
 46, 
 
 544. 
 
 55, 
 
 135. 
 
 49, 
 
 149. 
 
 53, 
 
 442. 
 
 45, 
 
 380. 
 
 55, 
 
 105. 
 
 49, 
 
 229. 
 
 48, 
 
 184. 
 
 50; 
 
 83. 
 
 52, 
 
 535. 
 
 1; 
 
 376. 
 515. 
 
 64 
 
 46. 
 
 46, 
 
 69. 
 
 U, 
 
 142. 
 
 47, 
 
 293. 
 
 46 
 
 160. 
 
 45, 
 
 569. 
 
 56, 
 
 81. 
 
 53, 
 
 399. 
 
 45, 
 
 386. 
 
 45, 
 
 652. 
 
 47, 
 
 284. 
 
 48, 
 
 279. 
 
 45, 
 
 241. 
 
 49; 
 
 127. 
 
 56, 
 
 427. 
 
 48, 
 
 , 307. 
 
 Peyret v. Coffee, 
 Philbrook v. Burgess, 
 
 Phillips V. Leavitt, 
 Phillips V. Pearson, 
 Phinney v. Holt, 
 Piokard v. Bailey, 
 Pierce v. Faunoe, 
 Pierce v. Faunoe, , 
 Pierce v. Goodriohj 
 Pierce v. Weymouth, 
 Pike V. Dilling, 
 Pillsbury v. Moore, 
 
 Pingree v. Snell, 
 Pinkham V; Dorothy, 
 Piper V. Gilmore, 
 Pittsfield V. Detroit, 
 Plalsted v. Hoar, 
 
 Case, 82. Gambling, 253. Limitations, 319, 
 
 Bond, 76. Damages, 131. Nety Trial, 366. Prac- 
 tice, 425, 426. 
 
 Frauds, Stat, of, 251. Mortgage, 351. 
 
 Attachment, 38, 39, 40. 
 
 Evidence, 216. 
 
 Hay, 256, 257. 
 
 Deed, 134. Equity, 171. Mortgage, 345. 
 
 Equity, 170; Interest, 289. Mortgage, 354. 
 
 Error, 187. Practice, 428. Eecord, 457. 
 
 Contract, 102. 
 
 Damages, 128. 
 
 Joint Tenant, &c., 292. Ntiisance, 368. Prescrip- 
 tion, 432. Riparian Eights, 467. 
 
 Costs, 119. 
 
 Impressment, <S;c.', 262. 
 
 Estoppel, 187, 188, 192. 
 
 Domicil, l56. 
 
 Attachment, 40. 43. Officer, 375. 
 
 Assumpsit, 32. Frauds, Stat. 
 
 Plummer V. Bucknaili, Actions, &o., 8, 9. 
 
 of, 2bl. 
 
 Plummer v. Lyman, Frauds, Statute of, 250. 
 Plummer v. Morrill, Arbitration, 23. 
 Pope V. Linn, Lord's Day, 327. 
 
 Pope V. Machias W. P. ! Assumpsit, 32. Evidence, 209, 216. Exceptions, 
 
 Co., ( 221. Kev? Trial, 365, 366. Waiver, 589. 
 
 Porter V. Porter, Bills, &c., 58, 59, 72. Evidence, 201. Gift, 253. 
 
 Porter v. Stanley, CoUeotor, 87, 88. 
 
 Portland v. Eichardson,Nuisance, 369. Way, 549. 
 Port. & Ox. Cen. E. E. 
 
 Co. V. G. T. E. E. Co.,Eailroad, 443. 
 
 55, 235. 
 
 Potter V. Sewall, 
 Potter V. Small, 
 Powers V. Sawyer, 
 Pratt V. Bunker, 
 Pratt V. Dow, 
 Pratt V. Roberts, 
 Pratt V. Skolfleld, 
 
 Preacher's Aid So. 
 
 V. Eich, 
 Preble v. Bro\vh, 
 Preble v. Longfellow, 
 Preble v. Portland, 
 Prentiss v. Eoberts, 
 
 Prentiss v. Shaw, 
 Prop'rs Union WTiarf 
 
 V. Muzzey, 
 Putnam v. Parker, 
 
 Attachment, 44. Practice, 431. 
 
 Actions, &c., 7. Mortgage, 356. 
 
 Exceptions, 218. Practice, 423. Trover, 523. 
 
 Ofacer, 372. Pleading, 408. Triespass, 516. 
 
 BiUs, &c., 64, 69. Judgment, 297. Trust, 534. 
 
 justice, &o., 299. 
 
 Dower, 159. Equity, 181. Execution, 233. Mort- 
 gage, 844, 849. 
 ) Charitable Uses, 86. Devise, &c., 152. Equity, 
 5 176, 177. 
 
 ,255. 
 
 Fishery, 240. 
 Guardian, &c., 
 Way, 544, 545. 
 Evidence, 108, 202, 206. 
 558. 
 
 128. 
 
 Practice, 425. Witness, 
 
 Bond, 74. Equity, 167. 
 Eaeoutor, &o., 235. Eepfevin, 481. 
 
 Q. 
 
 47, 470. Quimby v. Morrill, Evidence, 206, 215. 
 
 54, 546. Ramsdell v. BusweB; 
 
 46, 311. EamsdeU v. Emery, 
 
 56, 339. Eand v. Nutter, 
 
 48, 37. EandaU v. BowdlBii, 
 
 51, 246. Eandall v. Lunt, 
 
 R. 
 
 Cases, &&, 84., Eepleviri, 461. 
 Equity, 176. Trust, 532. 
 Assumpsit, 36. 
 Poor Debtor, 414, 416; 
 
 Eiceptioiis, 220. Husbaid, &o., 259. Marned 
 Woman, 333. 
 
XXX 
 
 TABltE OF CASES. 
 
 54, 28. Bankin v. Goddard, 
 
 55, 389. Eankin v. Goddard, 
 
 49, 210. Eankins v. Treat, 
 
 56, 142. Kawson v. Hall, 
 47, 506. Eawson v. Tuel, 
 
 50, 36. Eeadfleld V. Shaver, 
 
 Judgment, 297. 
 
 Judgment, 296, 297, 298. 
 
 Contract, 106. 
 
 Arbitration, 25. Mortgage, 358. 
 
 Holmes Note, 257. Sale, 471. 
 
 Bond, 74. Collector, 88. Evidence, 204, 206. New 
 Trial, 364. Payment, 398. Practice, 425. Sure- 
 ty, &c., 498, 499, 500. Verdict, 536. 
 
 BiUs, &c., 65. 
 
 Forcible Entry, &c., 241. Mortgage, 355. 
 
 Probate Court, 439. 
 
 Const. Law, 100. Landlord, &o., 302, 303, 305. 
 
 Bounty, 77. 
 
 Deed, 135. Evidence, 197. Mortgage, 359. 
 
 Actions, &o., 8. Mortgage, 359, 360. 
 
 Equity, 169, 172, 173. Mortgage, 354. 
 
 Eipley v. Crooker, 
 45, 438. Eoach v. Eandall, 
 
 51, 429. Eedman v. Adams, 
 46, 270. Eeed v. Elwell, 
 54, 499. Eeed v. Poster, 
 48, 388. Eeed v. Eeed, 
 53, 527. Eeed v. Eeed, 
 
 48, 548. Eich v. Eoberts, 
 50, 395. Eioh v. Eoberts, 
 
 52, 560. Eichards v. Pierce, 
 
 46, 394. Eichardson v. Me. Ins. 
 
 Co., . Contract, 108. Insurance, 274. 
 
 45, 386. Eichardson v. Skomeld,Dower, 157, 158. Execution, 233. Mortgage, 344. 
 
 49, 558. Eichardson v. Williams, Cont., 103. Creditor, &c., 126. Pi-auds, Stat, of, 250. 
 
 53, 437. Eichmond v. Johnson, Town, 513. _ . 
 
 47, 370. Eipley v. Crooker, Actions, &c., 7. Cont, 106. Equity, 181. Evi- 
 dence, 197. , 
 
 Amendment, 15. Married Woman, 331. Plead- 
 ing, 402. Usury, 534. 
 Condition, 93. Partition, 378. Probate Court, 436. 
 Bills, &c., 63. 
 
 Evidence, 203. Insolv. Est., 272. Interest, 289. 
 
 Trustee Process, 529. 
 
 Limitations, 320. Mortgage, 350. 
 
 Contract, 102. Damages, 129. Liquor, 321, 322. 
 
 Officer, 375, 376. Trover, 521. 
 Landlord, &c., 302, 304, 305. Lease, 311. 
 Infant, 269. 
 Assault, &c., 26. 
 Attachment, 37. Mortgage, 348. 
 
 Mandamus, &o., 329. Eegister, &c., 458. 
 Executor, &c., 236. Insurance, 284. Probate 
 
 Court, 437. Set-off, 481. 
 Poor Debtor, 413, 414,416. 
 Certiorari, 85. 
 
 Bond, 74. Pound Keeper, 417. Town, 509. 
 Impounding, 261, 262. 
 Costs, 117. 
 
 47, 259. 
 53, 36. 
 
 48, 481. 
 
 48, 171. 
 48, 61. 
 
 48, 186. 
 
 56, 357. 
 56, 102. 
 
 44, 275. 
 46, 436. 
 50, 243. 
 
 50, 188. 
 
 49, 434. 
 49, 417. 
 46, 541. 
 
 45, 596. 
 56, 306. 
 52, 187. 
 
 56, 94. 
 
 51, 384. 
 
 Bobbins v. Gleason, 
 Eobbins v. Vose, 
 Bobbins Cord. Co. v. 
 
 Brewer, 
 Eoberts v. Knight, 
 Eoberts v. Littlefield, 
 Eobinson v. Barrows, 
 
 Eobinson v. Deering, 
 Eobinson v. Weeks, 
 Eogers v. Waite, 
 Eogers v. Wingate, 
 Eose V. Knox Co. Com- 
 missioners, 
 Eose V. O'Brien, 
 
 Boss V. Berry, 
 Boss V. Ellsworth, 
 Bounds V. Bangor, 
 Bounds V. Stetson, 
 Bowe V. Shaw, 
 Euss V. Waldo Mutual 
 
 Ins. Co., 
 Eussell V. Brown, 
 Eussell V. Franklin Co. 
 
 Commissioners, Appeal, 21, 
 
 Insurance, 284, 285. 
 Eeal Action, 454. 
 
 Co. Com'rs, 123. Way, 543. 
 
 s. 
 
 53, 82. Sanborn v. Machias- 
 port, 
 
 55, 110. Sanfason, v. Martin, 
 
 50, 86. Sanford v. Haskell, 
 44, 374. Sanford v. Lord, 
 52, 590. Sargent v. Eoberts, 
 46, 464. Sargent v. Wording, 
 
 56, 146. Sawtelle v. Wardwell, 
 46, 400. Sawyer v. Eastern 
 
 Steamboat Co., 
 58| 308. Sawyer v. Lufkin, 
 
 51, 398. Sawyer v. Mayhew, 
 
 Bounty, 77. 
 
 Tax, 505. 
 
 Assumpsit, 36. Case, 83. Pence, 239. 
 
 Beplevin, 460. School District, 474. 
 
 Arrest, 26. Poor Debtor, 414. 
 
 Agency, 14. Evidence, 212. Shipping, 485. 
 
 Writ, 559. 
 
 Practice, 424. Shipping, 488, 489. Way, 541. 
 Guardian, <fcc., 256. Insane Persons, 271, 272. 
 Agency, 13. Insurance, 284. 
 
TABLE OF CASES. 
 
 XXXI 
 
 55, 227. 
 51, 194. 
 
 50, 584. 
 
 53, 252. 
 
 54, 505. 
 
 48, 568. 
 
 51, 454. 
 
 46, 362. 
 45, 417. 
 48, 247. 
 50, 94. 
 
 55, 159. 
 48, 584. 
 
 48, 244. 
 55, 395. 
 
 49, 78. 
 
 54, 463. 
 
 52, 481. 
 
 52, 147. 
 
 45, 281. 
 
 53, 497. 
 
 55, 18. 
 
 47, 102. 
 
 50, 72. 
 
 49, 315. 
 
 52, 509. 
 
 46, 293. 
 
 51, 359. 
 
 48, 506. 
 
 56, 30. 
 
 44, 442. 
 48, 101. 
 51, 515. 
 
 51, 21. 
 46, 158. 
 56, 255. 
 56, 64. 
 
 45, 547. 
 
 50, 96. 
 
 52, 178. 
 
 54, 48. 
 56, 566. 
 
 55, 139. 
 48, 252. 
 
 48, 19. 
 
 53, 546. 
 
 49, 159. 
 55, 197. 
 
 54, 493. 
 45, 524. 
 
 45, 524. 
 
 Equity, 474. 
 Amendment, 18, 19, 
 
 Sawyer v. Koble, 
 
 Scamman v. Huif, 
 
 Soammon v. Wells, Mittimus, 341 
 
 Soarboro' v. Parker, Collector, 89. 
 
 Sch. Dist. No. 6, in Dres- 
 den, V. ^tnalns. Co.,Soliool District, 476. 
 
 Sch. District No. 1 in 
 Jackson v. Stearns, School District, 475. 
 
 Sch. District No. 9 in 
 Searsport v. Deshon, School Agent, 474. 
 
 Scott V. Watson, Infant, 268. 
 
 Scruton y^ Moulton, Exceptions, 217, 218. 
 
 Poor Debtor, 413. 
 Eeform School, 458. 
 132. 
 
 Shaw V. Muzzey, 
 Shaw V. Shaw, 
 Sheldon v. Call, 
 Sheldon v. Conner, 
 Shepherd v. Eand, 
 Shepley v. A. & St. ] 
 
 R. R. Co., 
 Shreve v. Penno, 
 Sibley v. Eider, 
 
 Sidensparker v. Sid- 
 ensparker, 
 
 Simmons v. Jacobs, 
 Simpson v. Norton, 
 
 Simpson v. Pease, 
 Simpson v. Warren, 
 Sinclair v. Jackson, 
 Skillings v. Norris, 
 Skowhegan Bank v. 
 
 Cutler, 
 Skowhegan Bank v. 
 
 Cutler, 
 Skowhegan Bank v. 
 
 Farrar, 
 Small V. Danville, 
 Small V. Gilman, 
 Small V. Lufkin, 
 Smalley v. Wight, 
 Smith V. Bragdon, 
 Smith V. Chadwick, 
 Smith V. Dow, 
 Smith V. Estes, 
 Smith V. Grant, 
 Smith V. Kelley, 
 Smith V. Ken. & Port. 
 
 E. E, Co., 
 Smith T. Mon. Mut. F. 
 
 Assumpsit, 34. Trespass, 515. 
 
 Evidence, 201. 
 
 Pleading, 408, 409. Practice, 423. 
 
 Mortgage, 359. 
 
 Practice, 431. 
 
 Equity, 180. Mortgage, 344. 
 
 Fraud, &o., 249. Trustee Process, 524. 
 
 Damages, 131. Execution, 227. Judgment, 295. 
 Mortgage, 349. 
 ) Evidence, 214, 216. Fraud, &c., 245, 248. Judg- 
 \ ment, 295. Practice, 426. Real Action, 453. 
 ) Trust, 533. Waiver, 539. 
 
 Attorney, &o., 45. Equity, 169, 175, 184. Evi- 
 dence, 217. Jud. Notice, 293. Time, 507. 
 
 Amendment, 15. Evidence, 195, 196. Law, &c., 
 307. New Trial, 363. Practice, 418, 420, 421, 
 430. Probate Court, 435. 
 
 Condition, 94. Limitations, 318. 
 
 Assignment, 30. Eqtiity, 179. 
 
 Evidence, 214. Trover, 523. Witness, 557. 
 
 Assumpsit, 35. 
 
 Bank, 52. Evidence, 196. Fraud, &c., 244, 245. 
 ) Bank, 52, 53. Evidence, 208, 209. Fraud, &c.. 
 ) 245. New Trial, 366. 
 
 I Deed, 143. Fi-aud, &c., 246. Mortgage, 358. 
 J Trustee Process, 527. 
 
 Title, &c., 508. Town, 509, 510. Way, 550. 
 
 Evidence, 210. Practice, 424, 425. 
 
 Perambulation, 400. 
 
 BiUs, &c., 57, 59, 60. 
 
 Poor Debtor, 411. 
 
 Attachment, 38. Officer, 374 Waiver, 539. 
 
 Execution, 233. Mortgage, 348. 
 
 Executor, &c., 236. Statute, 495. 
 
 Damages, 128. Landlord, &c., 304. Trespass, 518. 
 
 Equity, 174, 181. ' 
 
 Attachment, 37. 
 Assignment, 28. 
 
 Ins. Co., 
 Smith V. Montgomery, Dog,"l54. 
 Smith V. Morrill, Bills, &c., 61, 72, 73. 
 
 Coupons, 121. 
 
 Insurance, 277. Mortgage, 342. 
 
 Smith V. Morrill. 
 Smith V. Sawyer, 
 Smith V. Wood, 
 Snow V. Gilline, 
 Snow V. Moses, 
 Snow V. Snow, 
 Snowman v. Harford, 
 Solon V. Perry, 
 Som. & Ken. R. R. Co. 
 
 V. Gushing, 
 Som. & Ken. E. E. Co. 
 
 V. Weston, 
 
 Trover, 520. 
 
 BiUs, &c., 65, 69. 
 
 Amendment, 18. Practice, 420. 
 
 See Felch v. Bugbee. 
 
 MiUs, 337. 
 
 Devise, &c., 151. Executor, &c., 237. 
 
 Equity, 180. 
 
 Amendment, 15, 17. Pauper, 394, 395. 
 
 Estoppel, 189. 
 Railroad, 442. 
 
 Railroad, 442. 
 
xxxu 
 
 TABLE OF CASES. 
 
 47, 
 
 5o: 
 49; 
 52; 
 
 47. 
 55, 
 45: 
 52, 
 
 48, 
 48, 
 
 51; 
 
 47, 
 50; 
 
 47, 
 47; 
 53: 
 55: 
 
 45, 
 46: 
 
 44; 
 
 48, 
 49; 
 
 45. 
 
 54 
 48. 
 55; 
 51, 
 54; 
 
 558. 
 
 30. 
 389. 
 
 92. 
 
 585. 
 
 362. 
 123. 
 326. 
 592. 
 
 830. 
 162. 
 297. 
 244. 
 275. 
 470. 
 101. 
 
 183. 
 
 45. 
 
 388. 
 396. 
 446. 
 200. 
 
 512. 
 606. 
 531. 
 
 278. 
 
 456. 
 588'. 
 
 435. 
 
 573. 
 
 217. 
 
 477. 
 327. 
 
 442. 
 501. 
 805. 
 569. 
 381. 
 150. 
 206. 
 279. 
 412. 
 
 194. 
 241. 
 365. 
 363. 
 562. 
 
 Soper V. Pratt, Tre&pass, 516. 
 
 Soule V. Buc^, S,cire S'ae^q.g, 477. 
 
 Southar4 v. Bradfprid, Town, 511. 
 
 Southard v. Hill, Abatempnt) 1, 2, 4. 
 
 South Berwick v. Hun- 
 tress, Bond, 75, Colleptor. 
 
 South Boston Iron Co. 
 
 V. Boston Locomotive 
 
 Works, Attachment, 41. 
 
 Southwick V. Hopkins, Pleading, 402. 
 
 Spaulding v. Rogers, Error, 187. 
 
 Spencer v. BrlghtoBj Execution, 223, 
 
 Sprague v. Steam Sfay. 
 Co., ' Attachment, 38. 
 
 Springer v. Berry, Auction, &o., 47. 
 
 Sprome v. Eoye, t)^ed, 143. 
 
 Staokpole v. Keay, Contraoj, 1Q5. Payment, 396, 
 
 Stanton v. Hatch, Justice, &o., 299. 
 
 Stanwood v. McIie^lan,Estosp^l, 188, 191. Evidence, 198. 
 
 Staples V. Smith, Evidence, 2Q8. Trespass, 516, gl7. 
 
 Starbird v. So)i, I)is, No. 
 7 in Falmouth, School District, 475. 
 
 Starks v. lfewPQrtland,Pauper, 391. 
 
 Trustee process, 527. 
 Married Wpjnan, 332. 
 
 State V. Baker, 
 
 State V. Bartlett, 
 State V. Bartletp, 
 State V, B^rtlett, 
 State 7. Bartlett, 
 
 State V. Boyington, 
 State V. Brewer, 
 State V. Buck, 
 State V. Burnham, 
 
 State V. Calais, 
 State V. Carver, 
 
 State v. Casey, 
 
 State V, Clough, 
 
 State V. Cofren, 
 
 State y. Collin?, 
 
 State V. Coofflbs, 
 Sjjat'S y, Dameiy; 
 
 State V. Dearborn, 
 State v. Delaijp, 
 State V. Dow, 
 State V. Dresser, 
 State V. Elder, 
 State V. Estes, 
 State V. G-ilman, 
 State V. Goold, 
 State V. Hall, 
 
 State V. Ham, 
 State V. Hill, 
 State V. Hill, 
 State V, Hqpd, 
 State V. Hurley, 
 
 53, 536. State v. Inness, 
 
 'Bail* 4&. Complaint, 92. Eecognizanoe, 455. 
 
 Scire F3<;ias, 477. 
 Co?npl3.int, 91, 92. Practice, 424. 
 Evidence, 195, 210, 215. Liquor, 323. 
 Indictment, ^65. 
 Constitutional Law, 100. Evidence, 197, 217. Ex- 
 
 peptions, 221. Indictment, 268. Larceny, 306. 
 
 Practice, 432. Wifajpss, 558. 
 Indictpipnl;, 264. 
 Way, 546. 
 
 Indictment, 266. Judgment, 293. 
 Amendment, 15. Scire Facias, 476. Surety, &fi., 
 
 499. 
 Way, 545, 550. 
 Abatement, 3- Criminal Law, 12Q, Judgment, 
 
 294. Laiceny, 306. 
 Drinking House, &c., 163. Jndiotment, 266. 
 
 Liquor, 323. 
 Apiendment, 18. Constable, 95, 96, Evidence, 
 
 206. Grand Jury, 254. Indictment, 263. 
 Common Seller, 90. Indictment, 264, 265, 267. 
 
 Liquor, 324. 
 Cases, ffec, 84. Drinking House, &c., 163. In- 
 dictment, 264, 266. Liquor, 324. 
 Larceny, 30% 
 Evidence, J96. Exceptions, 218. Practioe, 421, 
 
 422. Waiver, 538. Wjteess, 558. 
 Indictment, 265. 
 Liquor, 326. 
 State Treas., 492. 
 Indiptm^flt;, §8g. Pleading, 407. 
 Liquor, 325, 
 Cheating, &e,, 87. 
 
 CriminalLaw, 126. Evidence, 211. llurder, 361. 
 Bailment, 50. 
 Evidpnce, 203. Indictment. 265. Justice, &e., 
 
 m- Perjnry,400. 
 Indictment, 267. 
 Practice, 430, 431. 
 Arson, 2Q. 
 
 Exceptions, 220. Indictpient, 205, 267. 
 Constitutional Law, 87, Exceptions, 219, 220. 
 
 Liquor, 326. 
 Common Seller, 90. Drinking House, &c., 163. 
 
 I-iqupr, 325, Pleading, 407. 
 
TABLE OF CASES. 
 
 XXXIU 
 
 50, 
 
 506. 
 
 State V. Intoxicating 
 Liquors, 
 
 54, 
 
 564. 
 
 State V. Intoxicating 
 Liquors, 
 
 51, 
 
 125. 
 
 State V. Jones, 
 
 56, 
 
 88. 
 
 State V. Kaler, 
 
 50, 
 
 409. 
 
 State V. Kimball, 
 
 47, 
 
 426. 
 
 State V. Learned. 
 
 44, 
 
 469. 
 
 State V. Libbey, 
 
 49, 
 
 569. 
 
 State V. Maber, 
 
 48, 
 
 218. 
 
 State V. Mayberry, 
 
 53, 
 
 214. 
 
 State V. Molntyre, 
 
 48, 
 
 576. 
 
 State V. Miller, 
 
 47, 
 
 189. 
 
 State V. Koyes, 
 
 49, 
 
 594. 
 
 State V. O'Gonner, 
 
 49, 
 
 383. 
 
 State V. Patten, 
 
 53, 
 
 284. 
 
 State V. Peck, 
 
 47, 
 
 449. 
 
 State V. Pillsbury, 
 
 50, 
 
 217. 
 
 State V. Plummer, 
 
 53, 
 
 124. 
 
 State V. PoUand, 
 
 51, 
 
 395. 
 
 State V. Quimby, 
 
 49, 
 
 285. 
 
 State V. Robinson, 
 
 54, 
 
 33. 
 
 State V. Smith, 
 
 45, 
 
 320. 
 
 State V. Staples, 
 
 47, 
 
 857. 
 
 State V. Stevens, 
 
 53, 
 
 548. 
 
 State V. Stevens, 
 
 45, 
 
 608. 
 
 State T. Stimpson, 
 
 54, 
 
 24. 
 
 State V. StoyeU, 
 
 53, 
 
 438. 
 
 State V. Sweetsir, 
 
 45, 
 
 322. 
 
 State V. Taylor, 
 
 56, 
 
 490. 
 
 State V. Thomas, 
 
 49, 
 
 404. 
 
 State V. Tozier, 
 
 45; 
 
 423. 
 
 State V. Turner, 
 
 49, 
 
 181. 
 
 State V. Underwood, 
 
 54, 
 
 408. 
 
 State V. Verrill, 
 
 54, 
 
 581. 
 
 State V. Verrill, 
 
 47, 
 
 165. 
 
 State V. Witham, 
 
 53, 
 
 328. 
 
 State V. Wright, 
 
 53, 
 
 125. 
 
 State V. Teaton, 
 
 56, 
 
 219. 
 
 State V. Young, 
 
 46, 
 
 95. 
 
 Stearns v. At. & St. L. 
 K. K. Co., 
 
 56, 
 
 73. 
 
 Stephenson v. Davis, 
 
 54, 
 
 55. 
 
 Stephenson v. Piscat- 
 aquaP.&M.Ins.Co., 
 
 56, 
 
 274. 
 
 Stetson V. Bangor, 
 
 44, 
 
 29. 
 
 Stetson V. Corinna, 
 
 51, 
 
 434. 
 
 Stetson V. Day, 
 Stevens v. Adams, 
 
 45, 
 
 611. 
 
 45, 
 
 31. 
 
 Stevens v. Bragdon, 
 
 48, 
 
 501. 
 
 Stevens v. Ellis, 
 
 56, 
 
 488. 
 
 Stevens v. Kecord, 
 
 45, 
 
 615. 
 
 Stevens v. Webster, 
 
 56, 
 
 300. 
 
 Stewart App., 
 
 50, 
 
 130. 
 
 Stewart v. Crosby, 
 
 46, 
 
 321. 
 
 Stewart v. Keed, 
 
 44; 
 
 195. 
 
 Stickney v. Munroe, 
 
 Liquor, 326. 
 
 Constitutional Law, 100. Liquor, 325. 
 
 Witness, 557. 
 
 Complaint, 92, 93. Liquor, 325. 
 
 Deposition, 147. Exceptions, 220. Forgery, 244. 
 Practice, 425. 
 
 Complaint, 92. Constitutional Law, 09. 
 
 Adultery, 10. Evidence, 211. 
 
 Abatement, 2. Exceptions, 219, 220. Practice, 419. 
 
 Conspiracy, 94, 95. Crim. Law, 126. Evidence, 
 194. Exceptions, 218. Felony, 238. Indict- 
 ment, 264, 265, 266, 267. Merger, 335. Prac- 
 tice, 424. 
 
 Co. Com'rs., 124. Equity, 170. Practice, 429. 
 
 Complaint, 92. Estoppel, 191. Liquor, 324. 
 
 Railroad, 444, 445. 
 
 Common Seller, 90. Liquor, 324, 325. 
 
 Auction, &o., 47. Land Agent, &c., 301. Title, 
 &c., 508. Trover, 521. 
 
 Surety, &c., 499. 
 
 Indictment, 264, 266. Practice, 431. 
 
 Perjury, 400. 
 
 Larceny, 306. 
 
 Grand Jury, 254. 
 
 Liquor, 324, 326. 
 
 Complaint, 92. Exceptions, 221. Liquor, 325. 
 New Trial, 364. Practice, 431. 
 
 Complaint, 91. 
 
 Liquor, 323. 
 
 Indictment, 267. Justice, &c., 300. 
 
 Indictment, 264. Larceny, 306. 
 
 Indictment, 267. 
 
 Abatement, 4. Indictment, 267. Pleading, 406, 
 407. Poligamy, 410. 
 
 Indictment, 263, 266. 
 
 Superior Court, 497. 
 
 Exceptions, 219. 
 
 See Jones v. Oxford Co. 
 
 Larceny, 306. 
 
 Ridictment, 265. Murder, 361. 
 
 l?rew Trial, 362. 
 
 Forgery, 243. 
 
 Grand Jury, 254. Indictment, 267. Jurors, 298. 
 
 Practice, 424, 427. 
 
 Amendment, 18, 19. Recognizance, 456. 
 I At. & St. L. R. R. Co., 36. Constitutional Law, 
 ) 99. Demand, 145. Pleading, 404. Railroad, 444. 
 
 Equity, 166, 167, 172. 
 1 Exceptions, 221. Insurance, 285, 286. Shipping, 
 ) 484, 485. 
 
 Tax, 501, 504. 
 
 Abatement, 3. Appeal, 21. Evidence, 195, 203. 
 Judgment, 293, 294. Jurisdiction, 298. Prac- 
 tice, 419, 420. Recognizance, 456. S. J. Court, 
 497. 
 
 Case, 83. Tax, 505. Waste, 540. 
 
 Bills, &c., 60, 61, 70. Pleading, 408. 
 
 Land Agent, &c., 300. Real Action, 453. 
 
 Trover, 519. 
 
 Assumpsit, 33. 
 
 Exceptions, 217. Practice, 418. 
 
 Executor, &c., 235. 
 
 Assignment, 27. Mortgage, 345, 347, 348, 349. 
 
 Shipping, 487. 
 
 Agency, 12. Mills, 336. 
 
XXXIV 
 
 TABLE OF CASES. 
 
 47, 379. Stimpson v. Mon. M. F. 
 
 Ins. Co., 
 
 52, 465. Stinchfleld V. Emerson, 
 
 51, 556. Stinson v. Ross, 
 
 52, 261. Stinson v. Rouse, 
 50, 442. StockweU v. Dilling- 
 ham, 
 
 46, 127. Stone v. Augusta, 
 
 46, 438. Stone v. Bartlett, 
 
 46, 445. Stone v. Locke, 
 
 48, 425. Stone v. Locke, 
 
 50, 219. Storer v. Eaton, 
 
 45, 174. Storer v. Elliot F. Ins. 
 Co., 
 
 52, 144. Storer v. Hobbs, 
 
 51, 439. Stover v. Bluehill, 
 
 51, 355. Strickland v. Bartlett, 
 
 54, 263. Strickland v. Parker, 
 
 45, 76. Stroutv.MillbridgeCo., 
 
 48, 477. Stuart v. Machiasport, 
 
 46, 457. Sturtevant v. Liberty, 
 
 49, 446. Sturtevant v. RandaU, 
 
 53, 149. Sturtevant v. Randall, 
 
 56, 507. Sullivan v. Lewiston 
 
 Institution for Sav'gs, 
 
 49, 455. Swanton v. Crooker, 
 
 52, 415. Swanton v. Crooker, 
 
 53, 346. Swett v. Brackley, 
 51, 140. Swett V. Curtis, 
 
 55, 190. Swett v. Sprague, 
 44, 496. Sylvester v Staples, 
 51, 14. Symonds v. Harris, 
 
 Insurance, 283, 287. 
 
 Estoppel, 188. Evidence, 204, Title, &o., 509- 
 Execution, 233. Real Action, 450. Sale, 473. 
 Execution, 228, 229. 
 
 Partnership, 384. „„ . 
 
 Bridge, 81. Deed, 138, 139. New Trial, 364. 
 Way, 546. „,. 
 
 Equity, 178, 181. Execution, 233. Mortgage, 348, 
 352,355. „ . 
 
 Assignment, 27. Costs, 118. Interest, 289. Mort- 
 gage, 347, 351, 352. 
 
 Equity, 167. 
 
 Actions, &c., 8, Insurance, 284. 
 
 Insurance, 278. 
 
 School District; 475. Trespass, 518. 
 
 Way, 548. Witness, 557. 
 
 Married Woman, 333. 
 
 Execution, 227. Fixture, 241. Joint Tenant, <fcc., 
 
 291. Trover, 520. 
 MiUs, 336, 339. 
 
 Law, &c., 308. Practice, 424. Way, 547. 
 Order, 377. 
 
 Exceptions, 219. Review, 466. 
 BiUs, &c., 61, 72, 73. Evidence, 203. Judgment, 
 
 295. Pleading, 409. 
 
 Savings Banks, 473, 474. 
 Execution, 228. 
 
 Amendment, 17, 19. Partition, 381. 
 Bills, &c., 69. Judgment, 296, 297. 
 Equity, 183. 
 
 Nuisance, 369, 370. Pub. Laws, 441. Statute, 496. 
 Bills, &c., 61, 70. Contract, 108. Evidence, 200. 
 Execution, 228, 230. Fixture, 240. Joint Tenant, 
 &o., 292. Trespass, 516. 
 
 T. 
 
 53, 369. Tainter v. Lombard, 
 
 54, 554. Tainter v. Lombard, 
 53, 348. Tainter v. Winter, 
 45, 122. Tappan v. Deblois, 
 50,339. Tarboxv. Eastern St'm- 
 
 boat Co., 
 
 50, 236. Tarbox v. Fisher, 
 
 52, 566. Tebbetts v. Estes, 
 
 55, 393. Thayer v. Chesley, 
 
 44, 247. Thayer v. Roberts, 
 
 56, 40. Thomas v. Mayo, 
 
 47, 500. Thomas v. Record, 
 
 45, 116. Thomas v. Rockland 
 
 Ins. Co., 
 
 46, 408. Thomas v. SpofFord, 
 
 54, 368. Thompson v. Bridgton, 
 
 55, 99. Thompson v. Dyer, 
 50, 428. Thompson v. Gilmore, 
 
 48, 34. Thompson v. Mclntire, 
 45, 445. Thompson v. Small, 
 50, 67. Thompson v. Smiley, 
 41, 66. Thompson v.Wadleigh, 
 
 Agency, 12. Sale, 471. 
 Practice, 425, 427. 
 Bills, &c„ 69, 73. Limitations, 320. 
 Equity, 165, 176, 181. 
 
 Bailment, 49. Evidence, 206, 207. 
 
 Appeal, 21. Costs, 118. Probate Court, 437. Wid- 
 ow's Allowance, 552. 
 
 Deed, 140. Execution, 226. Law, &c., 309. Real 
 Action, 450, 452. Trust, 531. 
 
 Evidence, 200. 
 
 Officer, 372, 375. 
 
 Bills, &c., 63. 
 
 Condition, 93. Execution, 224. 
 
 Insurance, 283, 284. 
 
 Estoppel, 198. Replevin, 461, 462, 463. 
 
 Bounty, 77, 78. 
 
 Executor, &;c., 237. 
 
 Lien, 315, 316. 
 
 Practice, 430. 
 
 Executor, &c., 234. Shipping, 486. 
 
 Amendment, 18. Attachment, 44. Evidence, 215. 
 
 Witness, 557. 
 
TABLE OF CASES. 
 
 XXXV 
 
 45, 445. 
 45, 158. 
 
 47, 
 47, 
 
 52, 202. 
 
 46, 365. 
 56, 100. 
 
 52, 500. 
 
 54, 480. 
 
 45, 331. 
 
 47, 232. 
 
 55, 360. 
 
 50, 450. 
 
 51, 478. 
 
 49, 34. 
 
 51, 478. 
 
 53, 71. 
 
 54, 112. 
 
 56, 231. 
 
 50, 347. 
 
 54, 115. 
 44, 206. 
 
 55, 178. 
 
 51, 393. 
 
 49, 312. 
 
 46, 280. 
 
 Thomijson v. White, Executor, &o., 234. Shipping, 486. 
 Thornton v. York B'nk, Costs, 116. Joint Tenant, &c., 290, 291. Parti- 
 tion, 378, 379. Seisin, &c., 479. 
 
 Estoppel, 191. Executor, &c., 235. 
 
 Executor, &c., 237. Insolvent, 272. Limitations, 
 318. 
 
 Actions, &c., 9. Judgment, 295. Sale, 472. 
 
 Lien, 313. Logs, &c., 326. 
 
 Lord's day, 327. 
 
 New Trial, 362. 
 
 Executor, &c., 237. Set-off, 481. 
 
 Evidence, 194, 210, 215. Law, &c., 307. Practice, 
 422. 
 
 Thurston v. Doane, 
 Thurston v. Lowder, 
 
 Thurston v. Spratt, 
 Tibbets v. Tibbets, 
 Tillock V. Webb, 
 Tilton V. Kimball, 
 Tobey v. Miller, 
 Tobinv. Shaw, 
 
 Tomlinson v. Mon- 
 mouth M. F. Ins. Co., Insurance, 276. 
 
 Totman v. Forsaith, 
 Trask v. Wilder, 
 Treat v. Bent, 
 Treat v. Gilmore, 
 
 Treat v. Pierce, 
 Treat v. Pierce, 
 Treat v. Smith, 
 
 Mortgage, 342. 
 
 Treat v. Union Ins. Co., Insurance, 286. 
 
 Bastardy, 55. 
 Gov. 125. 
 Forcible Entry, &c., 242. 
 
 Bills, &c., 68. Damages, 127. Exceptions, 219. 
 Mortgage, 359, 360. Officer, 375. Trover, 519. 
 Forcible Entry, &c., 242. 
 Mortgage, 350, 354, 356, 357. 
 Surety, &c., 500. 
 
 Trescott v. Moan, 
 Tuck V. Moses, 
 Tucker v. Madden, 
 Tufts V. Bunker, 
 Tufts V. Maines, 
 
 Tufts V. Shepherd, 
 Tuttle V. Walker, 
 
 46, 348. Tyler v. Winslow, 
 
 Collector, 88. 
 
 Officer, 375. Eeplevin, 462, 463. 
 
 Equity, 165. 
 
 Evidence, 208. 
 
 Mortgage, 350, 357. Keal Action, 450, 454. Waiv- 
 er, 539. 
 
 Bills, &c., 58. Usury, 535. 
 
 Actions, &c., 6. Case, 82, Deed, 137. Easement, 
 163. 
 
 Attachment, 41, 42. Tr. Process, 529. 
 
 u. 
 
 48, 172. Union Bank v. Hum- 
 phreys, Bills, &c., 63, 71. 
 48, 172. Union Bank v. Stone, Bills, &c., 63, 72. 
 50, 595. Union Bank v. Stone, Evidence, 197. Exceptions, 220. 
 
 V. 
 
 48, 262. Vandesande v. Chap 
 
 man, 
 53, 18. Vantasselv.Hathaway, 
 51, 509. Veazie v. Bangor, 
 
 53, 50. Veazie v. Bangor, 
 
 49, 24. Veazie v. Boynton, 
 53, 29. Veazie v. Chester, 
 
 50, 518. Veazie v. China, 
 50, 479. Veazie v. Dwinel, 
 
 47, 127. Veazie v. Howland, 
 
 53, 38. Veazie v. Howland, 
 
 53, 39. Veazie v. Howland, 
 
 49, 105. Veazie v. Machias, 
 
 45, 560. Veazie v. Mayo, 
 
 49, 156. Veazie v. Mayo, 
 
 49, 119. Veazie v. Penobscot 1 
 K. K. Co., J 
 
 Bills, &c., 65. 
 
 Cont. 104. 
 
 Assumpsit, 35. Evidence, 207, 214, 216. Plead- 
 ing, 403. Waiver, 539. 
 
 Assumpsit, 34. Condition, 93. Cont, 105. Prac- 
 tice, 420. Waiver, 539. 
 
 Fraud, &c., 244. 
 
 Law, &c., 308. Pauper, 389, 390. 
 
 Soldier's Aid, 489. Statute, 493. 
 
 Mills, 336, 337. Nuisance, 369. Riparian Eights, 
 467. Way, 541. ^ S >■», 
 
 Pauper, 387, 391. 
 
 Pauper, 393. 
 
 Cases, &c., 84. Pauper, 393. 
 
 Emancipation, 164. Pauper, 389. 
 
 Railroad, 443. 
 
 Railroad, 447. 
 
 Actions, &c., 9. Limitations, 317, 318. Rail- 
 road, 446, 447. 
 
XXXVl 
 
 TABLE OF CASES. 
 
 53, 555. Veaaie Bank v. Young, Probate Court, 438. 
 
 56, 11. Verona v. Penobscot, Pauper, 392, 393. Soldier^ Aid, 490. 
 
 53, 544. Vining v. Baker, Title, &c., 508. Trover, 520. 
 
 w. 
 
 52, 21. 
 
 53, 258. 
 
 45, 28. 
 
 45, 67. 
 56, 371. 
 
 53, 422. 
 
 46, 470. 
 
 46, 525. 
 51, 32. 
 
 48, 436. 
 56, 161. 
 
 49, 358. 
 
 48, 193. 
 
 54, 276. 
 44, 88. 
 
 51, 146. 
 53, 463. 
 56, 360. 
 
 52, 843. 
 
 47, 316. 
 44, 368. 
 
 56, 52. 
 
 49, 309. 
 
 52, 466. 
 
 46, 505. 
 
 44, 147. 
 
 45, 299. 
 
 53, 203. 
 
 55, 165. 
 
 56, 204. 
 47, 471. 
 56, 453. 
 5,1, 313. 
 47, 345. 
 
 49, 94. 
 51, 461. 
 
 53, 372. 
 
 54, 376. 
 
 51, 73. 
 45, 61. 
 
 50, 499. 
 44, 11. 
 
 54, 232. 
 50, 357. 
 m, 15. 
 
 52, 412. 
 
 Wakefield v.Littlefield, Pleading, 406. 
 "Walker v. Chase (2 
 
 cases). 
 Walker v. Grilman, 
 
 Walker v. Lincoln, 
 Walker v. Metropoli- 
 tan Ins. Co., 
 Walker y. Osgood, 
 Walker v. Sanborn, 
 Wall V. Farnham, 
 Wall V. Howard las. 
 
 Co., ^, 
 
 Wallace v. Columbia, 
 Ward V. Browne, 
 Ware v. Barker, 
 Warren v. Baxter, 
 Warren v. Blake, 
 Warren v. Coombs, 
 Warren v. Jones, 
 Warren v. Lovis, 
 Warren v. Warren, 
 Warren v. WiUiams, 
 
 Washburn v. Blake, 
 Waterhouse v. Cumb. 
 Co. Com'rs, 
 
 Evidence, 303. Judgment, 295. 
 Abatement, 3. Dist. Court, 153. Dower, 
 Married Woman, 331. Scire Facias, 476. 
 Deed, 143. Land Agent, &c., 300. 
 
 159. 
 
 Frauds, Stat, of, 252. 
 Keplevin, 462. 
 Witness, 557, 558. 
 Complaint, 91. 
 
 Insurance, 281, 282, 283. 
 
 TtistivHiTi pfi 2'7'7 
 
 Jurors, 298. New Trial, 362. Practice, 431. 
 
 Payment, 397, 398. Shipping, 488. 
 
 Execution, 229, 230. 
 
 WUl, 553. 
 
 Deed, 142. Easement, 164. 
 
 Error, 185. 
 
 Cont., 102, 107. Law, &c., 309. 
 
 Mortgage, 342. 
 
 Equity, 174, 175. 
 
 Evidence, 203. Fraud, &c., 245. New Trial, 362, 
 
 364. Real Action, 452. Verdict, 536. 
 Bank, 51, 52. Estoppel, 191. 
 
 Way, 543, 545. 
 Waterman v. Docki'ay, Pleading, 404. 
 Waterman v. Treat, Attachment, 39, 41, 44. 
 WaterviUe Bank v. 
 
 Kedington, Bills, &o., 72. Mortgage, 357. 
 
 Webb V. Goddard, Abatement, 3. Venue, 535. 
 Webber v. Davis, Sale, 470. Trover, 520. 
 
 Webber v. School Dist. 
 
 in Shapleigh, 
 Webster v. Calden, 
 Webster v. Calden, 
 
 Webster v. Calden, 
 Webster v. Sanborn, 
 Weld V. Lancaster. 
 Welcome v. Leeds. 
 Wells V. Som. & Ken. 
 
 K. K. Co., 
 Weston V. Alley, 
 Weston V. Dane, 
 Weston V. Dane, 
 Weston V. G. T. Eail- 
 
 ■way Co., 
 Weston V. Palmer, 
 Wetherell v. Hughes, 
 Wheelden v. Lowell, 
 Wheelden v. Wilson, 
 
 Wheeler v. Allen, 
 Whidden v. Belmore, 
 Whipple V. West, 
 
 White V. And. E.R. Co., New Trial, 362, 
 
 Nonsuit, 367. 
 
 Probate Court, 438. 
 
 Depo., 147, 148. Evidence, 195, 196, 197, 205. Ex- 
 ceptions, 221. New Trial, 366. Practice, 419, 
 432. Eeal Action, 452, 453, 454. 
 
 Exceptions, 221, 222. Mortgage, 347. 
 
 Bills, &c., 59. Liquor, 321. 
 
 Cont., 103. 
 
 Eailroad, 447, 448. Way, 548. 
 
 Const. Law, 98. Railroad, 445. 
 
 Agency, 11. 
 
 Governor and Council, 253. Mandamus, &c., 329. 
 
 State Treas., 492. 
 
 Bailment, 50. Damages, 129. 
 
 EiTor, 186. 
 
 Officer, 371, 373. 
 
 Fraud, &o., 246, 249. Law, &c., 308. Ttespass, 515. 
 
 Evidence, 197. Fraud, &c., 248. Motlgage, 338. 
 
 Witness, 556. 
 WiU, 556. 
 
 Cont., 107. Costs, 119, 120. 
 Agency, 13. 
 
TABLE OF CASES. 
 
 XXXVU 
 
 48, 360. White v. Elwell, 
 44, 21. White v. Estes, 
 48, 360. White v. Hutchinson, 
 52, 208. Whitehouse v. And. 
 
 R. E. Co., 
 46, 15. White Mountain Bn'k) 
 
 y. West, j 
 
 46, 428. Whitmore v. Alley, 
 44, 362. Whitney v. A. & St. L. 
 
 E. E. Co., 
 46, 882. Whitney v. Deming, 
 51, 418. Whitney v. Parrar, 
 
 44, 305. Whitney v. Hammond, 
 
 50, 125. Whitten v. Palmer, 
 
 48, 367. Whittier v. Prescott, 
 50, 354. Wilder v. Sprague, 
 
 49, 235. Willard v. Whitney, 
 
 49, 427. Williams v. Buker, 
 
 50, 9. Williams v. Hagar, 
 
 48, 135. Williams v. Smith, 
 
 49, 564. Williams v. Smith, 
 
 51, 599. Williamsburg v. Lord, 
 51, 449. Williamson v. Carlton, 
 
 48, 257. WilUs v. Eoberts, 
 
 50, 78. WiUs V. Greeley, 
 45, 544. Wills v. Whittier, 
 
 50, 447. Wilson v. Barker, 
 54, 384. Wilson v. Gannon, 
 56, 60. Wilson v. G. T. EaU- 
 
 way of Canada, 
 
 49, 73. Wilson V. Ladd, 
 
 44, 118. Wilson v. Soper, 
 
 47, 120. Wilson v. Stratton, 
 
 51, 566. Wilson v. Widenham, 
 
 54, 558. Winchester v. Ball, 
 
 55, 9. Winchester v. Corinna, 
 53, 138. Wing v. Ayer, 
 
 53, 465. Wing v. Ayer, 
 
 48, 249. Winslow v. AUen, 
 
 49, 578. Winslow v. Gilbreth, 
 
 50, 90. Winslow v. GUbreth, 
 
 47, 411. Winslow v. Morrill, 
 
 51, 447. Winterport v. Frank- 
 
 fort, 
 
 54, 270. Wiswell v. Marston, 
 
 48, 401. Wiswell v. Starr, 
 
 50, 381. Wiswell v. Starr, 
 
 45, 571. Withee v. Eowe, 
 
 49, 200. Witherell v. Maine ) 
 
 Ins. Co., ) 
 
 48, 570. Withers v. Laixabee, 
 
 49, 260. Wood v. Goodwin, 
 45, 374. Wood v. Holden, 
 
 51, 52. Wood V. Pennell, 
 
 55, 76. Wood V. Stockwell, 
 
 53, 300. Wood V. Watson, 
 49,353. Woodbridgev. Conner, 
 48, 302. Woodbury v. Brazier, 
 
 54, 332. Woodbury v. Ham- 
 
 mond, 
 
 50, 403. Woodbury v. Willis, 
 
 Hay, 257. Landlord, &o., 302, 303. 
 
 Poor Debtor, 415. 
 
 Hay, 257. Landlord, &c., 302. 
 
 Damages, 129. EaUroad, 449. 
 Agency, 13. Costs, 116. Estoppel, 190. Part- 
 nership, 382. Trustee Process, 523, 529. 
 Assumpsit, 31. Cont, 105. Sale, 471. 
 
 Eailroad, 442. 
 
 Costs, 117. 
 
 Attachment, 38. Mortgage, 360. Officer, 373. 
 Waiver, 539. 
 
 Corp., Ill, 114. 
 
 Costs, 117. 
 
 Trustee Process, 527. 
 
 Bills, &c., 71. Law, &c., 308. 
 
 Attachment, 41, 42, 43. Damages, 128. Evi- 
 dence, 203, 208, 214. Judgment, 295. Officer, 
 374. Eeoord, 457. 
 
 Mortgage, 345. New Trial, 364. Practice, 425. 
 
 Cont., 103, 105, 107. Damages, 130. 
 
 Abatement, 2. Bills^&c, 63, 64, 70, 71. 
 
 Equity, 171. Mortgage, 353. 
 
 Assessor, 27. Tax, 504, 505. 
 
 Mills, 339. Nonsuit, 367. 
 
 Assumpsit, 31. Devise, &c., 151. 
 
 Liquor, 326. 
 
 Augusta, Municipal Court of, 47, 48. 
 
 Assumpsit, 31. Mortgage, 345. 
 
 Execution, 224, 232. 
 
 Bailment, 50. 
 
 Estoppel, 190. Lien, 315. 
 
 Mortgage, 344. Eeal Action, 450. 
 
 Liquor, 321. Sale, 471. 
 
 Amendment, 16. Cov., 125. Seisin, ifec, 478. 
 
 Mortgage, 360, 361. 
 
 Bounty, 78. Legislature, 311. 
 
 Dower, 157, 158, 160. 
 
 Execution, 224, 225. 
 Abatement, 2. Emdence, 215. 
 Evidence, 206. Married Woman, 333. 
 Tax, 503. 
 Pauper, 388. 
 
 Deed, 142. 
 
 Bank, 52. 
 
 Equity, 168, 182. Lien, 313. Statute, 495. 
 
 Evidence, 198. Law, &c., 307. Practice, 422. 
 Probate Court, 436. Verdict, 537. Witness, 559. 
 
 Insurance, 278, 279, 283, 287. Law, &c., 308. 
 Practice, 425. Waiver, 538. 
 
 Landlord, &c., 302, 303, 305. Lease, 311. Waiver, 
 538. 
 
 Mortgage, 350, 356. 
 
 Arbitration, 22. 
 
 Estoppel, 188, 192. Evidence, 197, 211. Part- 
 nership, 385. 
 
 Constitutional Law, 100. Damages, 129. Ship- 
 ping, 483, 484. Trover, 522. 
 
 BiUs, &c, 62, 73. Damages, 130, 131. 
 
 Actions, &c., 8. Trespass, 515. 
 
 Shipping, 485, 486. 
 
 Guardian, &c., 255, 256. Probate Court, 439. 
 Evidence, 216. MiUs, 336. 
 
XXXVIU TABLE OF CASES. 
 
 55, 532. Woodcock v. McCor- 
 
 mick, Costs, 119, 120. 
 
 51,112. Woodmanv. ChurchiU, BiUs, &c., 66, 67. Evidence, 199, 216. 
 52, 58. Woodman v. Churchill, Bills, &c., 60. 
 
 52, 9. Woodman v. Dana, Evidence, 198, 199. 
 48, 266. Woodman v. NeaJ, Husband, &c., 259. 
 
 53, 79. Woodman v. Smith, Deed, 141. 
 45j 207. Woodman v. Tork & 
 
 C. E. R. Co., Seal, &c., 477. Trustee Process, 526. 
 30, 549. Woodman v. Tork & 
 
 C. R. R. Co., Cases, fcc, 84. Corp., 110, 111. 
 
 56, 265. Worcester v. Lord, Seisin, &c., 479, 480. 
 45, 357. Wormell v. Eustis, Betting, 56. 
 
 45, 270. Worthing v. Webster, Tax, 504. 
 
 44, 220. Wright v. Eastman, Assumpsit, 30. Partnership, 882, 383. 
 
 45, 489. Wright v. Haskell, Assumpsit, 35. Cont, 104. , 
 50, 139. Wyman V. Brown, Abatement, 2. Deed, 136. Fraud, &c., 247. Pleaa- 
 
 ing, 405, 406. Real Action, 451, 452. 
 55, 523. Wyman v. Fox, Executor, &c., 237. 
 
 47, 159. Wyman v. Gould, Evidence, 198, 215. Title, &c., 507. 
 
 55, 534. Wyman v. Hammond, Arbitration, 24, 25. 
 47, 184. Wyman v. Kilgore, Amendment, 16. 
 
 46, 162. Wyman V. Pen. dk Ken. 
 
 E. R. Co., Railroad, 444. 
 
 45, 522. Wyman v. Smith, Tax, 505. 
 
 44, 352. Yarmouth v. No. Yar- 
 
 mouth, Pauper, 387. 
 
 50, 552. York & C. E. R. Co., 
 
 in re. Bondholders of, Trust, 531. 
 
 45, 151. York & C. R. R. Co. v. 
 
 Clark, Exceptions, 217. 
 
 51, 506. York Co. M. F. Ins. Co. 
 
 V. Brooks, Bond, 74. Surety, &c., 499. 
 
 48, 75. YorkCo. M.F. Ins. Co. 
 
 V. Knight, Insurance, 278. 
 
 53, 225. York Co. M. F. Ins. Co. 
 
 V. Turner, Insurance, 281. 
 
 46, 475. Young v. Gregory, * Dower, 161. Evidence, 201. 
 
TABLE OF CASES, 
 
 [names of DBFBOT3ANTS AEKANGED ALPHABBTIOALLT] 
 WITH EEFBEENCE TO THE VOLUME AXD PAGE OF THE EEPOETS. 
 
 A. 
 
 51, 575. Abbott, Abbott v. 
 
 53, 356. Abbott, Abbott v. 
 56, 262. Abbott, Friend v. 
 45, 455. Adams, City Bank v. 
 
 50, 271. Adams, Hewett v. 
 
 54, 206. Adams, Hewett v. 
 
 51, 429. Adams, Eedman v. 
 
 45, 611. Adams, Stevens v. 
 
 48, 440. Addison, Hathaway v. 
 
 54, 505. Mtaa, Ins. Co., Sch. Dist. Ko. 
 
 6, in Dresden v. 
 
 55, 450. Alfred Bank, Drew v. 
 54, 232. Allan, Wbeeler v. 
 
 54, 436. AUen, Brown v. 
 50, 437. Allen, French v. 
 
 55, 114. Allen, Hines v. 
 
 48, 249. Allen, Winslow v. 
 
 49, 94. Alley, Weston v. 
 
 46, 428. Alley, Whitmore v. 
 
 49, 288. Am. Peace Soc, Howard v. 
 
 50, 161. Anderson, Boggs v. 
 48, 562. Andrews, Coleman v. 
 45, 75. Andrews, Longfellow v. 
 
 52, 417. And. K. K. Co., And. & Ken. 
 
 E. E. Ccf. V. 
 
 54, 160. And. E. E. Co., Chapman v. 
 
 52, 412, And. E. E. Co., Jameson v. 
 
 52, 412. And. E. E. Co., Merrill v. 
 
 52, 208. And. E. E. Co., Whitehouse v. 
 
 52, 412. 
 49, 491. 
 51, 318. 
 
 51, 370. 
 
 49, 346. 
 
 46, 332. 
 56, 324. 
 
 47, 523. 
 46, 69. 
 
 55, 395. 
 
 46, 95. 
 
 44, 362. 
 
 50, 473. 
 
 51, 352. 
 
 48, 335. 
 
 56, 176. 
 
 52, 216. 
 
 46, 127. 
 
 45, 472. 
 
 47, 287. 
 
 53, 138. 
 53, 465. 
 
 And. E. E. Co., White v. 
 
 And. & Ken. E.E. Co., Bates v. 
 
 And. & Ken. E. E. Co., Booth- 
 by V. 
 
 And. & Ken. E. E. Co., Pettin- 
 gill V. 
 
 Archer, Allen v. 
 
 Aroostook Co., Howe v. 
 
 Atkinson, Hatch v. 
 
 At. & St. L. E. E. Co., Frye v. 
 
 At. & St. L. E. E. Co., Port. & 
 Ox. Cen. E. E. Co. v. 
 
 At. & St. L. E. E. Co., Shep- 
 ley V. 
 
 At. & St. L. E. E. Co., Stearns v. 
 
 At. & St. L. E. E. Co., Whit- 
 ney V. 
 
 Atwood, Freeman v. 
 
 Auburn, Ingalls v. 
 
 Auburn Bank, And. E. E. Co. v. 
 
 Augusta, Augusta Savings 
 Bank v. 
 
 Augusta, Hallowell v. 
 
 Augusta, Stone v. 
 
 Augusta M. F. Ins. Co., Love- 
 joy V. 
 
 Avery, Allen v. 
 
 Ayer, Wing v. 
 
 Ayer, Wing v. 
 
 B. 
 
 53, 403. Bachelder, Dudley v. 
 52, 230. Bailey, Cooper v. 
 
 52, 198. Bailey, Hersey V. 
 44, 164. Bakeman, Berry v. 
 
 54, 9. Baker, Chadwick v. 
 
 49, 449. Baker, Crooker v. 
 
 48, 495. Baker, Esty v. 
 
 50, 325. Baker, Esty v. 
 50, 45. Baker, State v. 
 
 53, 544. Baker, Vining v. 
 
 49, 358. Baker, Ware v. 
 
 54, 558. Ball, Winchester v. 
 .54, 540. Bangor, Abbott v. 
 
 56, 310. 
 
 51, 532. 
 
 54, 540. 
 
 46, 325. 
 
 46, 541. 
 
 56, 274. 
 
 51, 509. 
 
 53, 50. 
 
 53, 514. 
 
 56, 443. 
 
 53, 275. 
 
 50, 447. 
 
 46, 497. 
 
 Bangor, Abbott v. 
 Bangor, Bragg v. 
 Bangor, Holyoke v. 
 Bangor, Pahner v. 
 Bangor, Bounds v. 
 Bangor, Stetson v. 
 Bangor, Veazie v. 
 Bangor, Veazie v. 
 Bangs, Hervey v. 
 Baring Boom, Lawler v. 
 Barker, Chaplin v. 
 Barker, Wilson v. 
 Barrows, Cony v. 
 
xl 
 
 TABLE OF CASES. 
 
 48, 186. 
 
 54, 496. 
 
 52, 570. 
 47, 388. 
 
 47, 396. 
 
 53, '446. 
 
 55, 200. 
 46, 438. 
 
 51, 355. 
 55, 520. 
 
 54, 136. 
 50, 308. 
 
 45, 455. 
 
 46, 200. 
 
 48, 193. 
 
 49, 207. 
 
 53, 431. 
 
 52, 529. 
 
 50, 357. 
 
 55, 504. 
 
 51, 478. 
 
 49, 550. 
 
 50, 31. 
 
 52, 293. 
 
 53, 206. 
 49, 434. 
 
 47, 330. 
 49, 539. 
 
 49, 71. 
 55, 528. 
 44, 163. 
 
 51, 182. 
 
 54, 93. 
 44, 416. 
 47, 328. 
 
 55, 147. 
 
 56, 498. 
 55, 87. 
 
 44, 99. 
 
 53, 373. 
 
 45, 461. 
 47, 62. 
 45, 602. 
 
 54, 276. 
 
 47, 316. 
 
 48, 297. 
 45, 228. 
 48, 269. 
 
 52, 476. 
 
 54, 447. 
 51, 439. 
 
 50, 161, 
 48, 451. 
 50, 552. 
 
 51, 585. 
 51, 585. 
 51, 585. 
 
 51, 528. 
 56, 161. 
 54, 424. 
 
 48, 37. 
 53, 324. 
 44, 482. 
 56, 512. 
 
 49, 24. 
 
 Barrows, Eobinson v. 
 Bartlett, Boyd v. 
 Bartlett, Farnum v. 
 Bartlett, State v. 
 Bartlett, State v. 
 Bartlett, State v. 
 Bartlett, State v. 
 Bartlett, Stone v. 
 Bartlett, Strickland v. 
 Bates, Brown v. 
 Bates, Hatch v. 
 Bates, Kimball v. 
 Bath M. M. Ins. Co., City 
 
 Bank v. 
 Bayley, Pickard v. 
 Baxter, Warren v. 
 Beaman, Kaler v. 
 Belfast, City of, Appellant. 
 Belfast, Waldo Co. Com'rs v. 
 Belmore, Whidden v. 
 Bennett, Brackett v. 
 Bent, Treat v. 
 Benton, Clinton v. 
 Berry, BiUings v. 
 Berry, Cocheco Bank v. 
 Berry, Oliver v. 
 Berry, Ross v. 
 Berry, Springer v. 
 Bessey, Crosby v. 
 Bickford, Hewes v. 
 Bickford, Hears v. 
 Bicknell, Coe v. 
 Biddeford, GUpatrick v. 
 Biddeford, Gilpatrick v. 
 Billings, Berry v. 
 Billings, Berry v. 
 Billings, Kimball v. 
 Black, Bassett v. 
 Black, Chamberlain v. 
 Black, Gallagher v. 
 Black, Grant v. 
 Blaisdell, Kidder v. 
 Blake, Holt v. 
 Blake, Oxnard v. 
 Blake, Warren v. 
 Blake, Washburn v. 
 Blanchard, Blake v. 
 Blanchard, Curtis v. 
 Blanchard, Leary v. 
 Bliss, Connell v. 
 Blossom, Eveleth v. 
 Bluehill, Stone v. 
 Boggs, Anderson v. 
 Bolton, Lewey's I. E. E. Co. v. 
 Bondholders of York & .0. E. 
 
 E. Co. in re. 
 Boothby, Hodge v. 
 Boston L. W., Alger v. 
 Boston Lu W., Bean v. 
 Boston L. W., So. Boston I. 
 
 Co. y. 
 Bosworth, Clark v. 
 Bourne, Ward v. 
 Bowden, Goodwin y. 
 Bowden, Eandall v. 
 Bowdoin, liisbon -v. 
 Boyd, GetcheU v. 
 Boyington, State v. 
 Boynton, Yeazie v. 
 
 47, 28. 
 56, 121. 
 53, 346. 
 55, 107. 
 41, 414. 
 55, 16. 
 
 43, 389. 
 59, 388. 
 51, 540. 
 
 46, 333. 
 45, 530. 
 59, 580. 
 
 48, 101. 
 
 55, 31. 
 
 56, 42. 
 
 53, 362. 
 
 48, 302. 
 
 50, 222. 
 
 47, 97. 
 
 54, 528. 
 
 51, 108. 
 51, 402. 
 
 48, 481. 
 
 45, 606. 
 
 46, 450. 
 54, 368. 
 
 54, 467. 
 
 49, 326. 
 
 50, 475. 
 
 51, 506. 
 
 55, 89. 
 54, 468. 
 53, 519. 
 
 53, 496. 
 51, 256. 
 
 44, 157. 
 
 49, 544. 
 
 47, 468. 
 
 46, 418. 
 
 50, 214. 
 
 47, 284. 
 
 56, 94. 
 
 50, 139. 
 
 54, 301. 
 
 55, 30. 
 46, 531. 
 
 51, 254. 
 55, 105. 
 
 51, 160. 
 
 48, 9. 
 
 49, 427. 
 49, 566. 
 
 45, 569. 
 
 55, 178. 
 
 56, 414. 
 
 52, 271. 
 
 53, 54. 
 48, 298. 
 44, 286. 
 44, 278. 
 
 44, 388. 
 51, 601. 
 
 54, 546. 
 
 46, 387. 
 
 45, 434. 
 48, 344. 
 48, 81. 
 
 Brackett, Blake v. 
 Brackett, Field v. 
 Brackley, Sweet v. 
 Bradbury, Kennedy v. 
 Bradford, Calais v. 
 Bradford, Cressey v. 
 Bradford, Southard v. 
 Bradley, Coe v. 
 Bradley, Corinth v. 
 Bradley, Emmons v. 
 Bradstreet, Abbott v. 
 Bradstreet, Gay v. 
 Bragdon, Smith v. 
 Bragdon, Stevens v. 
 Brannagan, Fahy v. 
 Brastow, Boynton v. 
 Brazier, Woodbury v. 
 Bremen, Gleason v. 
 Brewer, Bangor v. 
 Brewer, Bremen v. 
 Brewer, Lewis v. 
 Brewer, McLarren v. 
 Brewer, Bobbins Cord. Co. v. 
 Brewer, State v. 
 Bridgham, Hinckley v. 
 Bridgton, Thompson v. 
 Briggs, Keen v. 
 Brighton, Spencer v. 
 Brooks, Littlefield v. 
 Brooks, York Co. M. F. Ins. 
 
 Co. V. 
 Brooksville, Bickford v. 
 Brown, Dwinel v. 
 Brown, Ellsworth v. 
 Brown, Gaul v. 
 Brown, Gerrish v. 
 Brown, Gragg v. 
 Brown, Gray v. 
 Brown, Knight v. 
 Brown, New Haven Copper 
 
 Co.v. 
 Brown, North Bank v. 
 Brown, Preble v. 
 Brown, Eussell v. 
 Brown, Wyman v. 
 Buck, Jones v. 
 Buck, Soule v. 
 Buck, State v. 
 Buckfleld, Dudley v. 
 Bucknam, Plummer v. 
 Buffum, Davis v. 
 Bugbee, Felch v. 
 Buker, Williams v. 
 Bunker, Morrill v. 
 Bunker, Pratt v. 
 Bunker, Tufts v. 
 Burbank, Luce v. 
 Burgess, Philbrook v. 
 Burlington, Howland v. 
 Burnham, Dyer v. 
 Burnham, Mitchell v. 
 Burnham, State v. 
 Burton, Ken. Co. v. 
 Buswell, Either v. 
 Buswell, Ramsdell v. 
 Butler, Bates v. 
 Butler, Cumner v. 
 Butler, Gammon v. 
 Butler, Hanson v. 
 
TABLE OF CASES. 
 
 xli 
 
 c. 
 
 48, 
 
 456. 
 
 55, 
 
 203. 
 
 55, 
 
 165. 
 
 56, 
 
 204. 
 
 54, 
 
 365. 
 
 53, 
 
 471. 
 
 55, 
 
 159. 
 
 51, 
 
 608. 
 
 53, 
 
 211. 
 
 55, 
 
 11. 
 
 51, 
 
 449. 
 
 45, 
 
 307. 
 
 48, 
 
 353. 
 
 53, 
 
 128. 
 
 49, 
 
 588. 
 
 45, 
 
 435. 
 
 50, 
 
 294. 
 
 46, 
 
 206. 
 
 54, 
 
 484. 
 
 56, 
 
 197. 
 
 51, 
 
 515. 
 
 55, 
 
 53. 
 
 48^ 
 
 322. 
 
 48, 
 
 262. 
 
 51, 
 
 91. 
 
 55, 
 
 21. 
 
 52, 
 
 304. 
 
 54 
 
 196. 
 
 53, 
 
 258. 
 
 47, 
 
 367. 
 
 48, 
 
 369. 
 
 55, 
 
 393. 
 
 53, 
 
 29. 
 
 52, 
 
 350. 
 
 56, 
 
 228. 
 
 46, 
 
 152. 
 
 56, 
 
 407. 
 
 50, 
 
 518. 
 
 47, 
 
 169. 
 
 45, 
 
 64. 
 
 45, 
 
 207. 
 
 51, 
 
 112. 
 
 52, 
 
 58. 
 
 53 
 
 130. 
 
 56 
 
 542. 
 
 45 
 
 151. 
 
 51 
 
 426. 
 
 54, 
 
 487. 
 
 53, 
 
 60. 
 
 49, 
 
 573. 
 
 5i; 
 
 348. 
 
 55, 
 
 385. 
 
 48, 
 
 319. 
 
 55, 
 
 361. 
 
 54, 
 
 314. 
 
 48, 
 
 364. 
 
 56, 
 
 79. 
 
 49, 
 
 556. 
 
 47, 
 
 530. 
 
 44, 
 
 271. 
 
 48; 
 
 217. 
 
 48, 
 
 436. 
 
 55, 
 
 290. 
 
 Calais, State v. 
 
 55, 
 
 290. 
 
 Calden, Webster v. 
 
 56, 
 
 546. 
 
 Calden, Webster v. 
 
 48, 
 
 585. 
 
 Calden, Webster v. 
 
 49, 
 
 353. 
 
 Calef, Calefv. 
 
 52, 
 
 60. 
 
 Calef, Hathorne v. 
 
 53, 
 
 107. 
 
 Call, Sheldon v. 
 
 56, 
 
 187. 
 
 Camden, Barbour v. 
 
 49, 
 
 337. 
 
 Carleton, Laberee v. 
 
 55, 
 
 477. 
 
 Carlton, Gould v. 
 
 44, 
 
 88. 
 
 Carlton, Williamson v. 
 
 54, 
 
 438. 
 
 Carrol Co. M. F. Ins. Co.,Kast- 
 
 54, 
 
 503. 
 
 man v. 
 
 44, 
 
 29. 
 
 Carthage, Jay v. 
 
 55, 
 
 9. 
 
 Cartilage, Jay v. 
 
 44, 
 
 97. 
 
 Carver, State v. 
 
 54, 
 
 380. 
 
 Casey, State v. 
 
 45, 
 
 236. 
 
 Caswell, Davis v. 
 
 51, 
 
 36. 
 
 Chadbourne, Call v. 
 
 
 
 Chadbourne, Lewis v. 
 
 44, 
 
 388. 
 
 Chadbourne, Lincoln v. 
 
 52, 
 
 ■210. 
 
 Chadwick, Smith v. 
 
 53, 
 
 83. 
 
 Chandler, Patterson v. 
 
 49, 
 
 143. 
 
 Chaplin, Blodgett v. 
 
 53, 
 
 505. 
 
 Chapman, Vandesande v. 
 
 51, 
 
 570. 
 
 Charter Oak P. & M. Ins. Co., 
 
 50, 
 
 243. 
 
 Day v. 
 
 44, 
 
 388. 
 
 Chase, Chase v. 
 
 51, 
 
 301. 
 
 Chase, Hovey v. 
 
 47, 
 
 91. 
 
 Chase, Lawrence v. 
 
 56, 
 
 527. 
 
 Chase, Walker v. (2 cases). 
 
 56, 
 
 518. 
 
 Chelsea, Augusta v. 
 
 46, 
 
 327. 
 
 Chesley, Grosvenor v. 
 
 46, 
 
 411. 
 
 Chesley, Thayer v. 
 
 45, 
 
 9. 
 
 Chester, Veazie v. 
 
 53, 
 
 263. 
 
 Chick, Dyer v. 
 
 52, 
 
 267. 
 
 Chick, Knowlton v. 
 
 47, 
 
 370. 
 
 Child, Ballard v. 
 
 49, 
 
 455. 
 
 China, Estes v. 
 
 52, 
 
 415. 
 
 China, Veazie v. 
 
 50, 
 
 130. 
 
 Church, Hartland v. 
 
 47, 
 
 349. 
 
 Churchill, Brewer v. 
 
 53, 
 
 441. 
 
 Churchill, Woodman v. 
 
 52, 
 
 27. 
 
 Churchill, Woodman v. 
 
 45. 
 
 351. 
 
 Churchill, Woodman v. 
 
 45, 
 
 359. 
 
 Clancey, Howe v. 
 
 56, 
 
 155. 
 
 Clark, Man v. 
 
 56, 
 
 184. 
 
 Clark, York & C. K. K. Co. v. 
 
 44, 
 
 502. 
 
 Clements, Pamham v. 
 
 50, 
 
 231. 
 
 Clifford, Lanoey v. 
 
 54, 
 
 81. 
 
 Clifton, Hall v. 
 
 53, 
 
 526. 
 
 Clough, State v. 
 
 51, 
 
 140. 
 
 Cobb, Beals v. 
 
 47, 
 
 64. 
 
 Coe, Goddard v.' 
 
 51, 
 
 140. 
 
 Coffee, Peyret v. 
 Coffin, Coffin v. 
 
 56, 
 
 422. 
 
 45, 
 
 524. 
 
 Coffin, Mansur v. 
 
 
 
 Cofren, State v. 
 
 45, 
 
 250. 
 
 Colby, Leighton v. 
 
 44, 
 
 484. 
 
 Cole, Hunter V. 
 
 50, 
 
 298. 
 
 Cole, Ingalls v. 
 
 51, 
 
 407. 
 
 Collins, Billings v. 
 
 49, 
 
 315. 
 
 Collins, State v. 
 
 52, 
 
 509. 
 
 Columbia, Wallace v. 
 
 51, 
 
 604. 
 
 Columbian Ins. Co., Chase v. 
 
 
 
 Columbian Ins. Co., Hunt v. 
 Conner, Atkinson v. 
 Conner, Shelden v. 
 Conner, Woodbridge v. 
 Conway Ins. Co., Day v. 
 Conway Ins. Co., Pox v. 
 Cooke, Lawrence v. 
 Cooley, Leathers v. 
 Coombs, State v. 
 Coombs, Warren v. 
 Cooper, American Bank v. 
 Copeland, Jacobs v. 
 Corinna, Stetson v. 
 Corinna, Winchester v. 
 Corliss, Morrison v. 
 Cota, Cassity v. 
 Cotter, Baker v. 
 County Com'rs, At. & St. L. E. 
 
 K. Co. V. 
 County Com'rs, Burton v. 
 County Com'rs, Detroit v. 
 County Com'rs, Harriman v. 
 County Com'rs, Howland v. 
 County Com'rs, Lambard v. 
 County Com'rs, Orrington v. 
 County Com'rs, Rose v. 
 County Com'rs, Waterhouse v. 
 Cousens, Brown v. 
 Cousins, Kingley v. 
 Covel, Doane v. 
 Covel, Hart v. 
 Craig, Crocker v. 
 Cranberry Isles, Mt. Desert v. 
 Cressey, Bradford v. 
 Crocker, Eamball v. 
 Crooker, Crooker v. 
 Crooker, Ripley v. 
 Crooker, Swanton v. 
 Crooker, Swanton v. 
 Crosby, Stuart v. 
 Grossman, Clough v. 
 Grossman, Dinsmore v. 
 Cumberland Co., Bradbury v. 
 Cummings, Harriman v. 
 Cummings, Hooper v. 
 Cummings, Parkhurst v. 
 Cunningham, Furbush v. 
 Cunningham, Gilman v. 
 Cunningham, Newbert v. 
 Currier, Cutler v. 
 Currier, Paul v. 
 Curtis, Freeman v. 
 Curtis, Littlefield v. 
 Curtis, Swettv. 
 Gushing, Daggett v. 
 Gushing, Som. & Ken. B. R. 
 
 Co. V. 
 Cushman, Mace v. 
 Cushman, Perkins v. 
 Cutler, Demuth v. 
 Cutler, Hemenway v. 
 Cutler, Skowhegan Bank v. 
 Cutler, Skowhegan Bank v. 
 Cutts, Harvey v. 
 
xlii 
 
 TABLE OF CASES. 
 
 D. 
 
 48, 
 
 327. 
 
 Damery, State v. 
 
 50, 
 
 442. 
 
 52, 
 
 9. 
 
 Dana, Woodman v. 
 
 53, 
 
 575. 
 
 51, 
 
 461. 
 
 Dane, Weston v. 
 
 56, 
 
 289. 
 
 53, 
 
 372. 
 
 Dane, Weston v. 
 
 47, 
 
 79. 
 
 53, 
 
 174. 
 
 Danforth, Page v. 
 
 56, 
 
 52. 
 
 51, 
 
 359. 
 
 DanvUle, Small v. 
 
 49, 
 
 421. 
 
 47, 
 
 112. 
 
 Davenport, Groodwin v. 
 
 56, 
 
 26. 
 
 56, 
 
 73. 
 
 Davis, Stephenson v. 
 
 55, 
 
 135. 
 
 54, 
 
 361. 
 
 Davis, Muzzey v. 
 
 51, 
 
 165. 
 
 44, 
 
 147. 
 
 Davis, Webber v. 
 
 56, 
 
 81. 
 
 46, 
 
 176. 
 
 Day, Forsyth v. 
 
 51, 
 
 21. 
 
 51, 
 
 434. 
 
 Day, Stetson v. 
 
 53, 
 
 305. 
 
 56, 
 
 9. 
 
 Deane, Jarvis v. 
 
 56, 
 
 24. 
 
 54, 
 
 442. 
 
 Dearborn, State v. 
 
 55, 
 
 555. 
 
 45, 
 
 122. 
 
 Deblois, Tappan v. 
 
 54, 
 
 569. 
 
 48, 
 
 255. 
 
 Decker, Hall v. 
 
 51, 
 
 417. 
 
 51, 
 
 31. 
 
 Decker, Hall v. 
 
 47, 
 
 51. 
 
 53, 
 
 392. 
 
 Decrew, Egery V. 
 
 50, 
 
 111. 
 
 56, 
 
 357. 
 
 Deering, Eobinson v. 
 
 54, 
 
 152. 
 
 56, 
 
 201. 
 
 Delaney, Concord v. 
 
 51, 
 
 201. 
 
 55, 
 
 113. 
 
 Delano, AUen v. 
 
 51, 
 
 121. 
 
 54, 
 
 501. 
 
 Delano, State v. 
 
 45, 
 
 52. 
 
 4S, 
 
 211. 
 
 Demerritt, Goddard v. 
 
 44, 
 
 255. 
 
 46, 
 
 382. 
 
 Deming, Whitney v. 
 
 49, 
 
 44. 
 
 49, 
 
 102. 
 
 Dennett, Blake v. 
 
 53, 
 
 52. 
 
 55, 
 
 559. 
 
 Dennett, Hodgkins v. 
 
 50, 
 
 479. 
 
 54, 
 
 95. 
 
 Derby, Dane v. 
 
 50, 
 
 479. 
 
 51, 
 
 454. 
 
 Deshon, Sch. Dlst., No. 9, in 
 
 50, 
 
 479. 
 
 
 
 Searsport v. 
 
 46, 
 
 31. 
 
 53, 
 
 442. 
 
 Detroit, Pittsfield v. 
 
 55, 
 
 99. 
 
 48, 
 
 539. 
 
 Dilling, Pike v. 
 
 
 
 Dillingham, Stockwell v. 
 Dixmont, Barker v. 
 Doane, McLaughlin v. 
 Doane, Thurston v. 
 Dockray, Waterman v. 
 Donnell, Brown v. 
 Donnelly, Doyle v. 
 Dorothy, Pinkham v. 
 Dow, Hanson v. 
 Dow, Pratt v. 
 Dow, Smith v. 
 Dow, State v. 
 Downes, Curtis v. 
 Drake, Benson v. 
 Dresser, State v. 
 Drisco, Nash v. 
 Dudley, Giddings v. 
 Dunlap, Atkinson v. 
 Dunn, Bunton v. 
 Durell, Holmes v. 
 Durin, Douglass v. 
 Dwelley, Brown v. 
 Dwinel, Berry v. 
 Dwinel, Foster v. 
 Dwinel, Paine v. 
 Dwinel, Veazie v. 
 Dwinel, Veazie v. 
 Dwinel, Veazie v. 
 Dyer, Litchfield v. 
 Dyer, Thompson v. 
 
 E. 
 
 54, 
 
 203, 
 
 46, 
 
 400. 
 
 50, 
 
 339. 
 
 56, 
 
 107. 
 
 53, 
 
 12. 
 
 44, 
 
 220. 
 
 54; 
 
 186. 
 
 51, 
 
 386. 
 
 54, 
 
 156. 
 
 50, 
 
 219. 
 
 45 
 
 207. 
 
 51, 
 
 34. 
 
 53, 
 
 446. 
 
 52, 
 
 31. 
 
 48, 
 
 108. 
 
 47, 
 
 145. 
 
 52, 
 
 363. 
 
 54, 
 
 381. 
 
 45, 
 
 175. 
 
 47; 
 
 141. 
 
 Fames, Patterson v. 
 
 Eastern Steamboat Co., Saw- 
 yer v. 
 
 Eastern Steamboat Co., Tar- 
 box v. 
 
 East Livermore, Jay v. 
 
 Eastman, Chadwick v. 
 
 Eastman, Wright v. 
 
 Eaton, Giles v. 
 
 Eaton, Jones v. 
 
 Eaton, LaughUn v. 
 
 Eaton, Storer v. 
 
 Eaton, Woodman v. 
 
 Edes, Noble v. 
 
 Edgecomb, Alley v. 
 
 Edgecomb, Moulton v. 
 
 Edgerly, Cole v. 
 
 Edwards, Foss v. 
 
 Edwards, Gale v. 
 
 Elder, State v. , 
 
 EUiot P. Ins. Co., Storer v. 
 
 ElllotSVille, Crafts v. 
 
 50, 121. 
 
 48, 501. 
 56, 47. 
 
 49, 417. 
 46, 270. 
 48, 360. 
 52, 465. 
 54, 460. 
 46, 311. 
 
 54, 537. 
 
 50, 407. 
 50, 296. 
 
 55, 153. 
 
 56, 569. 
 
 45, 484. 
 50, 227. 
 
 46, 158. 
 46, 150. 
 52, 566. 
 
 44, 21. 
 54, 319. 
 
 45, 357. 
 
 Ellis, Bickford v. 
 
 Ellis, Stevens v. 
 
 Ellsworth, Orland v. 
 
 Ellsworth, Eoss v. 
 
 Elwell, Reed v. 
 
 Elwell, White v. 
 
 Emerson, Stlnchfleldv. 
 
 Emery, Oilman v. 
 
 Emery, Eamsdell v. 
 
 Equitable Ins. Co., Marrett v. 
 
 Erskine, Bradstreet v. 
 
 Erskine, Bryant v. 
 
 Erskine, Bryant v. 
 
 Erskine, Bryant v. 
 
 Erskine, Ford v. 
 
 Erskine, Ford v. 
 
 Estes, Smith v. 
 
 Estes, State v. 
 
 Estes, Tebbetts v. 
 
 Estes, White v. 
 
 Esty, Page v. 
 
 Eustis, Wormell v. 
 
 53, 143. Fairbanks, Farrar v. 
 
 46, 558. Fairfield, Bangor v. 
 51, 149. Fail-field, Bryant v. 
 
 47, 481. Fairfield, Lewiston v. 
 55, 487. Farmer, Gray v. 
 
 F. 
 
 48, 285. Farmers & Mechanics M. F. 
 Ins. Co., Merrill v. 
 
 45, 537. Farmingdale, Gardiner v. 
 53, 172. Farnham, Heath v. 
 
 46, 525. Farnham, Wall v. 
 
TABLE or CASES. 
 
 xliii 
 
 44, 233. 
 
 Farrar, Howe v. 
 
 49, 
 
 68. 
 
 45, 72. 
 
 Parrar, Hughes v. 
 
 55, 
 
 508. 
 
 46, 293. 
 
 Farrar, Skowhegan Bank v. 
 
 45, 
 
 32. 
 
 51, 413. 
 
 Farrar, Whitney v. 
 
 51, 
 
 367. 
 
 50, 239. 
 
 Farrington, Lovell v. 
 
 54, 
 
 499. 
 
 47, 507. 
 
 Faunce, Pierce v. 
 
 55, 
 
 523. 
 
 53, 351. 
 
 Faunoe, Pierce v. 
 
 55, 
 
 162. 
 
 47, 53. 
 
 Fellows, Bartlett v. 
 
 48, 
 
 320. 
 
 49, 78. 
 
 Fenno, Shreve v. 
 
 55, 
 
 46. 
 
 46, 526. 
 
 Field, Barnard v. 
 
 54, 
 
 252. 
 
 46, 546. 
 
 Finson, Dunning v. 
 
 51, 
 
 447. 
 
 56, 132. 
 
 Fisher, Machias Hotel Co. v. 
 
 54, 
 
 402. 
 
 50, 236. 
 
 Fisher, Tarbox v. 
 
 
 
 54, 41. 
 
 Fitch, Gore v. 
 
 52, 
 
 405. 
 
 48, 182. 
 
 Flagg, Chase v. 
 
 45, 
 
 113. 
 
 50, 398. 
 
 Fletcher, Colcord v. 
 
 51, 
 
 420. 
 
 45, 302. 
 
 Fletcher, Eastman v. 
 
 46, 
 
 239. 
 
 52, 479. 
 
 Ford, Brown v. 
 
 45, 
 
 220. 
 
 44, 427. 
 
 Ford, Lawrence v. 
 
 46, 
 
 141. 
 
 54, 104. 
 
 Ford, Otis v. 
 
 51, 
 
 518. 
 
 55, 360. 
 
 Forsaith, Totman v. 
 
 46, 
 
 226. 
 
 49, 452. 
 
 Foster, Call v. 
 
 56, 
 
 178. 
 
 52, 257. 
 
 Foster, Call v. 
 
 
 
 Foster, Cunningham v. 
 Foster, Freeman v. 
 Foster, Hamilton v. 
 Foster, Lothrop y. 
 Foster, Reed v. 
 Fox, Wymau v. 
 Foye, Sproule v. 
 Frank, Knight v. 
 Frankfort, Morton v. 
 Frankfort, Munroe v. 
 Frankfort, Winterport v. 
 Franklin Co., Lewiston Falls 
 
 Manf g Co. v. 
 Frazier, Crooker v. 
 Freeman, Doane v. 
 French, DeWolfe v. 
 Frost, MoKeen v. 
 Frothiingham, Nichols v. 
 Fuller, Goodspeed v. 
 Fuller, Kneeland t. . 
 Furbish, Callender v. 
 Furbush, Bell v. 
 
 G. 
 
 55, 538. Gage, Jewett v. 
 
 52, 541. Gager, Mudgett v. 
 
 52, 360. Gale, Edwards v. 
 55, 563. Gallupe, HefPron v. 
 
 44, 322. Gammon, Decker v. 
 54, 384. Gannon, Wilson v. 
 
 45, 542. Gardiner, Blodgett v. 
 54, 477. Gardiner, Byram v. 
 
 54, 477. Gardiner, Gay v. 
 
 49, 167. Gardner, Garnsey v. 
 
 53, 427. Garland, Clement v. 
 
 55, 414. Garvin, Fernald v. 
 
 48, 463. Gates, Munroe v. 
 55, 299. Gerry, Holmes v. 
 
 50, 602. Getchell, Davis v. 
 55, 241. Getchell, Duren v. 
 
 46, 537. Getchell, Godfrey v. 
 55, 160. Geyer, Fassett v. 
 55, 238. Gibbs, BiUings v. 
 53, 551. Gibson, Moore v. 
 
 47, 416. Gilbreth, Craig v. 
 53, 176. Gilbreth, Cutler Y. 
 
 47, 320. Gilbreth, Mills v. 
 
 49, 578. Gilbreth, Winslow v. 
 
 50, 90. Gilbreth, Winslow v. 
 
 52, 206. Giles, Durham v. 
 
 53, 99. Gilford, Bradbury v. 
 
 48, 19, Gillion, Snow v. 
 
 52, 165. Gilman, Gilman v. 
 
 53, 184. Gilman, Gilman v. 
 
 54, 453. Gilman, Gilman v. 
 54, 531. Gilman, Gilman v. 
 48, 473. Gilman, Gordon v. 
 
 48, 506. Gilman, Small v. 
 
 51, 206. Gilman, State v. 
 45, 28. Gilman, Walker v. 
 47, 152. Gilmore, Anuis v. 
 
 49, 173. Gilmore, Dane v. 
 51, 544. Gilmore, Dane v. 
 
 47, 9. Gilmore, Googings v. 
 
 49, 59. Gilmore, Hinckley v. 
 
 45, 566. Gilmore, Holyoke v. 
 
 49, 149. Gilmore, Piper v. 
 
 50, 428. Gilmore, Thompson v. 
 49, 34. Gilmore, Treat v. 
 
 45, 144. Given, Cabot v. 
 
 47, 259. Gleason, Robbing v. 
 
 46, 520. Gloster, Morton v. 
 
 48, 212. Goddard, Adams v. 
 54, 309. Goddard, Brackett v. 
 
 49, 11.5. Goddard, Braley V. 
 
 54, 28. Goddard, Rankin v. 
 
 55, 389. Goddard, Rankin v. 
 
 46, 505. Goddard, Webb v. 
 44, 65. Godfrey, Dwiuel v. 
 
 44, 25. Godfrey, Greene v. 
 
 55, 419. Goding, Hamilton v. 
 
 48, 487. Gooch, Gardiner v. 
 
 47, 173. Goodrich, Pierce v. 
 
 46, 82. Goodridge, Nutting v. 
 
 48, 79. Goodwin, Hooper v. 
 
 47, 593. Goodwin, Lane v. 
 
 56, 411. Goodwin, Paine v. 
 
 49, 260.' Goodwin, Wood v. 
 
 53, 279. Goold, State v. 
 55, 482. Gordon, Beal v. 
 
 49, 54. Gordon, Foster v. 
 
 45, 159. Gorham, Hooper v. 
 
 47, 159. Gould, Wymau v. 
 
 55, 94. Gouldsborough, Ellsworth v. 
 
 54, 358. GoweU, AtweU v. 
 
 54, 375. Grand T. R. K. Co., Briggs v. 
 
 48, 379. Grand Trunk R. R. Co., Ed- 
 
 wards v. 
 
 54, 105. Grand Trunk R. R. Co., Ed- 
 
 wards v. 
 
 55, 462. Grand Trunk R. R. Co., FiUe- 
 
 brown v. 
 
 46, 69. Grand Trunk R. R. Co., P. & 
 
 Ox. Cent. R. R. Co. v. 
 
xliv 
 
 TABLE OF CASES. 
 
 54, 
 
 376 
 
 56, 
 
 60 
 
 50, 
 
 364 
 
 52, 
 
 220 
 
 56, 
 
 72 
 
 56, 
 
 573 
 
 56, 
 
 255 
 
 54, 
 
 230 
 
 49, 
 
 587. 
 
 55, 
 
 540 
 
 Grand Ti-unk K. E. Co., Wes- 
 ton V. 
 
 Grand Trunk E. E. Co., Wil- 
 son v. 
 
 Grant, Black v. 
 
 Grant, Boynton v. 
 
 Grant, Fullerton v. 
 
 Grant, Grant v. 
 
 Grant, Smith v. 
 
 Gray, Hall v. 
 
 Gray, Harriman v. 
 
 Gray, Meservey v. 
 
 56, 317. Gray, Payne v. 
 
 50, 78. Greeley, Wills v. 
 
 53, 561. Greenacre, Leathers v. 
 
 46, 499. Green, Bennett v. 
 
 51, 114. Greene, Corey v. 
 
 48, 393. Greenleaf, Bucknam v. 
 
 46, 475. Gregory, Young v. 
 44, 47. Grover, Colburn v. 
 
 47, 135. Guilford, Chamberlain V. 
 44,491. GuUifer, tJrocker V. 
 
 49, 360. Gullifer, Fairfield v. 
 
 H. 
 
 50, 
 
 9. 
 
 50, 
 
 253. 
 
 51, 
 
 568. 
 
 55, 
 
 579. 
 
 49, 
 
 335. 
 
 55, 
 
 362. 
 
 56, 
 
 142. 
 
 49, 
 
 412. 
 
 52, 
 
 545. 
 
 47, 
 
 543. 
 
 50, 
 
 311. 
 
 53, 
 
 430. 
 
 54, 
 
 194. 
 
 46, 
 
 435. 
 
 51, 
 
 69. 
 
 44, 
 
 305. 
 
 54, 
 
 332. 
 
 55, 
 
 524. 
 
 50, 
 
 580. 
 
 56, 
 
 554. 
 
 56, 
 
 559. 
 
 55, 
 
 197. 
 
 56, 
 
 575. 
 
 49 
 
 269. 
 
 51, 
 
 14. 
 
 56, 
 
 518. 
 
 49, 
 
 195. 
 
 45, 
 
 430. 
 
 56, 
 
 251. 
 
 45, 
 
 112. 
 
 50, 
 
 86. 
 
 45, 
 
 489. 
 
 54, 
 
 167. 
 
 48, 
 
 55. 
 
 52, 
 
 244. 
 
 53, 
 
 18. 
 
 54, 
 
 124. 
 
 47, 
 
 257. 
 
 50, 
 
 568. 
 
 56, 
 
 246. 
 
 52, 
 
 578. 
 
 55, 
 
 120. 
 
 55, 
 
 445. 
 
 48, 
 
 332. 
 
 47, 
 
 462. 
 
 46, 
 
 357. 
 
 48; 
 
 537. 
 
 48, 
 
 533. 
 
 50, 
 
 248. 
 
 Hagar, Williams v. 
 
 50 
 
 267. 
 
 Hall, Allen v. 
 
 52 
 
 51. 
 
 Hall, Forbes v. 
 
 52 
 
 531. 
 
 Hall, Goddard v. 
 
 52 
 
 33. 
 
 HaU, Mellows v. 
 
 56 
 
 575. 
 
 Hall, Parker v. 
 
 48 
 
 545. 
 
 Hall, Eawson v. 
 
 56 
 
 385. 
 
 Hall, State v. 
 
 
 
 HalloweU, Mechanics Bank v. 
 
 50 
 
 470. 
 
 Ham, Bisbee v. 
 
 44 
 
 92. 
 
 Ham, Blake v. 
 
 48 
 
 241. 
 
 Ham, Blake v. 
 
 55 
 
 365. 
 
 Ham, State v. 
 
 46 
 
 81. 
 
 Hamilton, Bartlett v. 
 
 49 
 
 40. 
 
 Hamilton Mutual Ins. Co., 
 
 46 
 
 121. 
 
 Campbell v. 
 
 49 
 
 468. 
 
 Hammond, Whitney v. 
 
 45 
 
 380. 
 
 Hammond, Woodbury v. 
 
 52 
 
 144. 
 
 Hammond, Wyman v. 
 
 51 
 
 62. 
 
 Hampden F. Ins. Co., Garce- 
 
 53 
 
 451. 
 
 lon V. 
 
 55 
 
 256. 
 
 Hansoom, Chadbourne v. 
 
 46 
 
 • 91. 
 
 Harding, Bowman v. 
 Harford, Snowman v. 
 
 51 
 
 480. 
 
 55 
 
 98. 
 
 Harlow, Peroival v. 
 
 46 
 
 511. 
 
 Harmon, Hovey v. 
 
 56 
 
 170. 
 
 Harris, Symonds v. 
 
 53 
 
 554. 
 
 Hart, Covel v. 
 
 55 
 
 574. 
 
 Harwood, Freeman v. 
 
 45 
 
 374. 
 
 Haskell, Dennen v. 
 
 53 
 
 417. 
 
 Haskell, Hooper v. 
 
 50 
 
 570. 
 
 Haskell, Lowell v. 
 
 55 
 
 33. 
 
 Haskell, Sanford v. 
 
 50 
 
 24. 
 
 Haskell, Wright v. 
 
 48 
 
 410. 
 
 Hatch, Baldwin v. 
 
 51 
 
 363. 
 
 Hatch, Hobbs v. 
 
 50 
 
 371. 
 
 Hatch, Stanton v. 
 
 51 
 
 178. 
 
 Hathaway, Vantassel v. 
 
 56 
 
 474. 
 
 Hathorn, Barnes v. 
 
 50 
 
 318. 
 
 Hayes, Carver v. 
 
 47 
 
 362. 
 
 Hayes, Cummings v. 
 
 48 
 
 416. 
 
 Hayford, Darby v. 
 
 52 
 
 192. 
 
 Haynes, Brown v. 
 
 51 
 
 32. 
 
 Healey, Gilman v. 
 
 47 
 
 127. 
 
 Heame, Hearne v. 
 
 53 
 
 38. 
 
 Hebron, Auburn v. 
 
 53 
 
 39. 
 
 Herrick, Downing v. 
 
 47 
 
 595. 
 
 Herrin, Everett v. 
 
 45 
 
 376. 
 
 Herrin, Everett v. 
 
 51 
 
 194. 
 
 Herrin, Knight v. 
 
 45 
 
 61. 
 
 Hewett, Jose v. 
 
 48 
 
 172. 
 
 Hewett, Lime Eock Bank v. 
 Hewett, Lime Eock Bank v. 
 Hewett, Lime Eock Bank v. 
 Hewett, Peabody v. 
 Hichborn, Peroival v. 
 Hickey, Black v. 
 Hill, Bank of Mutual Eedemp- 
 
 tion V. 
 Hill, Kelley v. 
 Hill, Southard v. 
 Hill, State v. 
 Hill, State v. 
 Hinckley, Carroll v. 
 Hinckley, Merrill v. 
 Hinds, Barton v. 
 Hitchcock, Perkins v. 
 Hoar, Plaisted v. 
 Hobbs, Stover v. 
 Hobson, Hovey v. 
 Hobson, Hovey v. 
 Hobson, Hovey V. 
 Hobson, McMillan v. 
 Hodgkins, Adams v. 
 Hodgkins, Bonzey v. 
 Hodsdon, Garland v. 
 Hoeffner, Berry v. 
 Hogan, Des Brisay v. 
 Holden, Hart v. 
 Holden, Wood v. 
 Holmes, Bush v. 
 Holt, Phinney v. 
 Holton, Cunningham v. 
 Holway, Faught v. 
 Holyoke, Osgood v. 
 Hood, State v. 
 Hooper, Allen v. 
 Hooper, Day v. 
 Hope Ins. Co., Bailey v.- 
 Hopkins, Long v. 
 Hopkins, Southwick v. 
 Houlton, Ellsworth v. 
 Howard, Gross v. 
 Howard Ins. Co., Wall v. 
 Howland, Veazie v. 
 Howland, Veazie v. 
 Howland, Veazie v. 
 Hubbard, Goodwin v. 
 Huff, Dyer v. 
 Huff, Soammon v. 
 Hughes, Wetherell v. 
 Humphreys, Union Bank v. 
 
TABLE OF CASES. 
 
 xlv 
 
 49, 213. Hunt, Hotchkiss v. 
 66, 252. Hunt, Hotchkiss v. 
 53, 89. Huntress, So. Berwick v. 
 
 54, 562. Hurley, State v. 
 56, 493. Huse, Hickey v. 
 44, 57. Hutchinson, Moody v. 
 
 54, 345. 
 
 Hsley, Frost v. 
 
 50, 507 
 
 55, 376. 
 
 Ilsley, Frost v. 
 
 54, 564 
 
 51, 375. 
 
 Industry, Look v. 
 
 54, 33. 
 
 53, 536. 
 
 Inness, State v. 
 
 
 Intoxicating Liquors, State v. 
 Intoxicating Liquors, State v. 
 Intoxicating Liquors, State v. 
 
 J. 
 
 55, 
 
 55. 
 
 Jackson, Munroe v. 
 
 53, 
 
 437. 
 
 Johnson, Richmond v. 
 
 47, 
 
 102. 
 
 Jackson, Sinclair v. 
 
 48, 
 
 348. 
 
 Jones, Hinds v. 
 
 49, 
 
 319. 
 
 Jacobs, Abbott v. 
 
 49, 
 
 355. 
 
 Jones, Levett v. 
 
 49, 
 
 559. 
 
 Jacobs, Eaton v. 
 
 51, 
 
 125. 
 
 Jones, State v. 
 
 52, 
 
 445. 
 
 Jacobs, Eaton v. 
 
 51, 
 
 146. 
 
 Jones, Warren v. 
 
 52, 
 
 147. 
 
 Jacobs, Simmons v. 
 
 46, 
 
 432. 
 
 Jordan, Drinkwater v. 
 
 47, 
 
 520. 
 
 Jenne, Newman v. 
 
 53, 
 
 144. 
 
 Jordan, Keen v. 
 
 50, 
 
 455. 
 
 Jenness, Kelley v. 
 
 47, 
 
 177. 
 
 Joy, Abbott v. 
 
 53, 
 
 401. 
 
 Johnson, Berry v. 
 
 44, 
 
 342. 
 
 Joyce, Murray y. 
 
 53, 
 
 246. 
 
 Johnson, Brown v. 
 
 53, 
 
 160. 
 
 Judldns, Kent v. 
 
 46, 
 
 489. 
 
 Johnson, Knowlton v. 
 
 48, 
 
 566. 
 
 Judkins, NeaUey v. 
 
 K. 
 
 56, 88. 
 
 Kaler, State v. 
 
 47, 
 
 184. 
 
 46, 346. 
 
 Keaton, Mansur v. 
 
 45, 
 
 172. 
 
 45, 297. 
 
 Keay, Stackpole v. 
 
 50, 
 
 409. 
 
 54, 417. 
 
 Keen, Jordan v. 
 
 52, 
 
 500. 
 
 53, 103. 
 
 Keene, Casco Bank v. 
 
 45, 
 
 411. 
 
 46, 225. 
 
 Keene, Fisk v. 
 
 55, 
 
 172. 
 
 48, 263. 
 
 Kelley, Lovell v. 
 
 53, 
 
 500. 
 
 56, 64. 
 
 Kelley, Smith v. 
 
 
 
 44, 448. 
 
 Kendall, Fowler v. 
 
 51, 
 
 518. 
 
 45, 234. 
 
 Kendall, Mitchell v. 
 
 48, 
 
 171. 
 
 44, 388. 
 
 Kennebec Co., Burton v. 
 
 48, 
 
 75. 
 
 45, 263. 
 
 Ken. & Port. E. E. Co., Cassi- 
 
 
 
 
 dy V. 
 
 45, 
 
 479. 
 
 45, 547. 
 
 Ken. & Port. E. E. Co., Smith v. 
 
 48, 
 
 551. 
 
 55, 453. 
 
 Kennebuukport, Perry v. 
 
 55, 
 
 346. 
 
 54, 189. 
 
 Kidder, Norton v. 
 
 
 
 Kilgore, Wyman v. 
 Kimball, Lee v. 
 Kimball, State v. 
 Kimball, Tilton v. 
 Kincaid, Ludden v. 
 Kingfield, New Poi'tland v. 
 Kittery Point Bridge Co., Or- 
 
 cutt V. 
 Kneeland, Fuller v. 
 Knight, Eoberts v. 
 Knight, York Co. M. F. Ins. 
 
 Co. V. 
 Knowles, Beale v. 
 Knox, Kidder v. 
 Kucking, Foxton v. 
 
 L. 
 
 48, 113. Laconia Manf g Co., Euzzell v. 
 
 53, 106. Lakin, Bridgton v. 
 
 52, 544. Lambert, Lambert v. 
 
 50, 434. Lamson, Levering v. 
 56, 453. Lancaster, Weld v. 
 
 45, 165. Lane, Gunnison v. 
 
 51, 521. Lansil, Bangor v. 
 
 46, 516. Larrabee, Adams v. 
 45, 590. Larrabee, Elder v. 
 
 47, 474. Larrabee, Jones v. 
 
 48, 570. Larrabee, Withers v. 
 50, 100. Lawrence, Moulton v. 
 
 47, 426. 
 
 54, 405. 
 
 51, 313. 
 45, 534. 
 49, 91. 
 
 55, 456. 
 
 52, 564. 
 
 56, 507. 
 
 55, 494. 
 44, 469. 
 
 Learned, State v. 
 Leavitt, Phillips v. 
 Leeds, Wellcome v. 
 LeBarron, Chandler v. 
 Lewis, Bicknell v. 
 Lewiston, Packard v. 
 Lewiston Falls Bn'k, Holland v . 
 Lewiston Institute for Savings , 
 
 Sullivan v. 
 Lewiston Steam Mills Co., 
 
 Kimball v. 
 Libby, State v. 
 
xlvi 
 
 TABLE OF CASES. 
 
 46, 457. Liberty, Sturtevant v. 
 
 56, 390. Limerick, Chapman v. 
 
 56, 424. Lime Rock Ins. Co., First Nat. 
 
 Bank of Brunswick v. 
 
 48, 205. Lincoln, Harrison v. 
 
 45, 67. Lincoln, Walker v. 
 
 56, 450. Lincolnville, Mahoney v. 
 
 50, 83. Linn, Pope v. 
 
 50, 118. Lisherness, Berry v. 
 
 45, 183. Little, Cummings v. 
 
 52, 24. Littlefield, Bigelow V. 
 
 45, 549. Littlefield, Cooper v. 
 
 45, 61. Littlefield, Roberts v. 
 
 52, 21. Littlefield, Wakefield v. 
 
 46, 445. Locke, Stone v. 
 48, 425. Locke, Stone v. 
 
 53, 369. Lombard, Tainter v. 
 
 54, 554. Lombard, Tainter v. 
 
 48, 279. Longfellow, Preble v. 
 
 49, 406. Loomis, Coburn v. 
 53, 549. Loomis, Homstead t. 
 45, 293. Lord, Deering v. 
 
 49, 279. Lord, Edwards v. 
 
 48, 83. Lord, Hill V. 
 
 46, 23. Lord, Holbrook v. 
 
 45, 613. Lord, Keene v. 
 
 52, 365. Lord, Lemont v. 
 
 49, 99. Lord, Merchants Bank v. 
 
 44, 374. Lord, Sanford v. 
 
 51, 599. Lord, Williamsburg v. 
 
 56, 265. Lord, Worcester v. 
 
 55, 408. Loring, Noyes v. 
 
 46, 297. Lothrop, Hilton v. 
 
 46, 167. Loud, Bailey v. 
 
 54, 445. Lovejoy, Carleton v. 
 
 53, 468. Lovis, Warren v. 
 
 55, 549. Low, Marco v. 
 
 47, 72. Lowder, Thurston v. 
 
 49, 429. Lowell, Bowker v. 
 
 50, 499. Lowell, Wheelden v. 
 53, 508. Lucas, Atwood v. 
 
 47, 447. Ludden, Hammond v. 
 
 56, 308. Lufkin, Sawyer v. 
 56, 30. Lufkin, Snell V. 
 
 48, 377. Lunt, Lovejov v. 
 
 51, 246. Lunt, BandaU v. 
 
 48, 129. Lyman, Gould v. 
 
 49, 229. Lyman, Plummer v. 
 
 M. 
 
 47, 423. 
 
 49, 
 
 105. 
 
 51, 
 
 413. 
 
 48, 
 
 478. 
 
 53 
 
 82. 
 
 48, 
 
 477. 
 
 52, 
 
 535. 
 
 47, 
 
 451. 
 
 55, 
 
 132. 
 
 44, 
 
 206. 
 
 49, 
 
 569. 
 
 53, 
 
 200. 
 
 45, 
 
 168. 
 
 46, 
 
 394. 
 
 46, 
 
 483. 
 
 53, 
 
 542. 
 
 53, 
 
 542. 
 
 51, 
 
 393. 
 
 56, 
 
 417. 
 
 47, 
 
 58. 
 
 56, 
 
 538. 
 
 53, 
 
 209. 
 
 45, 
 
 25. 
 
 53, 
 
 45. 
 
 56, 
 
 315. 
 
 47, 
 
 548. 
 
 48, 
 
 44. 
 
 48, 
 
 26. 
 
 45; 
 
 401. 
 
 54, 
 
 270. 
 
 50, 
 
 336. 
 
 55, 
 
 110. 
 
 55, 
 
 501. 
 
 44, 
 
 77. 
 
 Mace, Butler v. 
 
 48, 
 
 389. 
 
 Machias, Veazie v. 
 
 48, 
 
 178. 
 
 Machias Hotel (Jo., Prop'rs of 
 
 48; 
 
 555. 
 
 Centre St. Church in M. v. 
 
 45, 
 
 190. 
 
 Machias Port, Desmond v. 
 
 48, 
 
 198. 
 
 Machias Port, Sanborn v. 
 
 
 
 Machias Port, Stuart v. 
 
 48, 
 
 158. 
 
 Machias W. P. & M. Co., 
 
 48, 
 
 161. 
 
 Pope V. 
 
 48, 
 
 218. 
 
 Macomber, Beedy v. 
 
 51, 
 
 398. 
 
 Macomber, Knight v. 
 
 50, 
 
 385. 
 
 Madden, Tucker v. 
 
 45, 
 
 560. 
 
 Maher, State v. 
 
 49, 
 
 156. 
 
 Maiue Central R. E. Co., Gree- 
 
 53, 
 
 394. 
 
 ley, V. 
 
 47, 
 
 342. 
 
 Maine Ins. Co., Joyce v. 
 
 55, 
 
 532. 
 
 Maine Ins. Co., Richardson v. 
 
 53, 
 
 410. 
 
 Maine Tel. Co., Dickey v. 
 
 56, 
 
 50. 
 
 Maine and Union Banks, Da- 
 
 48, 
 
 34. 
 
 vis V. 
 
 53, 
 
 214. 
 
 Maine and Union Banks, Cor- 
 
 55, 
 
 504. 
 
 bett V. 
 
 46, 
 
 94. 
 
 Maines, Tufts v. 
 
 45, 
 
 306. 
 
 Manhattan Ins. Co., Hobbs v. 
 
 48; 
 
 104. 
 
 ManseU, Banchor v. 
 
 49, 
 
 375. 
 
 Mansfield, McCarty v. 
 
 48 
 
 275. 
 
 Manson, Jenks v. 
 
 48, 
 
 424. 
 
 Mansur, Gillerson v. 
 
 44, 
 
 90. 
 
 Marco, Low v. 
 
 45, 
 
 599. 
 
 Mariaville, Emery v. 
 
 46, 
 
 532. 
 
 Marsh, Leach v. 
 
 46, 
 
 510. 
 
 Marshall, Abbott v. 
 
 51, 
 
 465. 
 
 Marshall, Andrews v. 
 
 
 
 Marston, Brett v. 
 
 44, 
 
 55. 
 
 Marston, Wiswell v. 
 
 55, 
 
 515. 
 
 Martin, Houlton v. 
 
 48, 
 
 282. 
 
 Martin, Sanfason v. 
 
 45, 
 
 516. 
 
 Mason, Bethel v. 
 
 47 
 
 351. 
 
 Mason, Carr v. 
 
 48; 
 
 140. 
 
 Mason, Chadbourne v. 
 
 Mason, Dockray v. 
 
 Matthews, Monroe v. 
 
 Maxwell, Cummings v. 
 
 Mayben-y, Bank of Cumber- 
 land v. 
 
 Mayberry, Knight v. 
 
 Mayberry, Morse v. 
 
 Mayberry, State v. 
 
 Mayhew, Sawyer v. 
 
 Mayo, Holyoke v. 
 
 Mayo, Veazie v. 
 
 Mayo, Veazie v. 
 
 McCarty, Horton v. 
 
 McCausland, Chadwick v. 
 
 McCormick, Woodcock v. 
 
 McCrillis, Pattee v. 
 
 McGlinchy, Paine v. 
 
 Molntire, Thompson v. 
 
 Mclntyre, State v. (4 oases). 
 
 McKenney, Brackett v. 
 
 McKenney, House v. 
 
 McKenney, Jordan v. 
 
 McKenney, Jordan v. 
 
 McLellan, Chase v. 
 
 McLellan, Stanwood v. 
 
 McNamara, Carlisle v. 
 
 McNarrin, Alford v. 
 
 McNeil, Gilmore v. 
 
 McNeil, Gilmore v. 
 
 Medford, Atkinson v. 
 
 Merchants Marine Insurance 
 Co., Dole V. 
 
 Merrill, Baldwin v. 
 
 Merrill, Bryant v. 
 
 Merrill, Goodwin v. 
 
 Merrill, Loud v. 
 
 Merrill, Loud v. 
 
 Merrill, Noble v. 
 
TABLE OF CASES. 
 
 xlvii 
 
 47, 109. 
 53, 208. 
 
 49, 65. 
 56, 371. 
 
 45, 76. 
 
 51, 341. 
 
 53, 308. 
 44, 177. 
 
 48, 576. 
 
 54, 480. 
 47, 492. 
 
 55, 184. 
 
 53, 468. 
 
 50, 347. 
 
 52, 128. 
 
 54, 170. 
 
 54, 492. 
 50, 96. 
 47, 379. 
 47, 232. 
 
 55, 117. 
 
 52, 178. 
 
 53, 583. 
 
 Men-ill, Pettingill v. 
 
 44, 
 
 154. 
 
 Merritt, Hodgkins v. 
 
 44, 
 
 67. 
 
 Merryman, Mills v. 
 
 45, 
 
 50. 
 
 Metropolitan Ins. Co., Walk- 
 
 52, 
 
 252. 
 
 er T. 
 
 51, 
 
 9. 
 
 Millbridge Co., Strout v. 
 
 48 
 
 184. 
 
 MiUer, Bath v. 
 
 47, 
 
 470. 
 
 Miller, Bath v. 
 
 54, 
 
 48. 
 
 Miller, Hazeltine v. 
 
 56, 
 
 566. 
 
 Miller, State v. 
 
 47, 
 
 411. 
 
 Miller, Tobey v. 
 
 51, 
 
 497. 
 
 Millett, Butler v. 
 
 49, 
 
 432. 
 
 Millett, Hanson v. 
 
 50, 
 
 102. 
 
 Mitchell, Haskell v. 
 
 52, 
 
 260. 
 
 Moan, Trescott v. 
 
 52, 
 
 287. 
 
 Monmouth Kre Insurance Co., 
 
 49, 
 
 255. 
 
 Haskell v. 
 
 53, 
 
 546. 
 
 Monmouth M. F. Insurance 
 
 54, 
 
 115. 
 
 Co. , Caston v. 
 
 51, 
 
 127. 
 
 Monmouth M. F. Insurance 
 
 45, 
 
 417. 
 
 Co., Lewis V. 
 
 53; 
 
 20. 
 
 Monmouth M. Fs Insurance 
 
 
 
 Co., Smith V. 
 
 49, 
 
 561. 
 
 Monmouth M. F. Insurance 
 
 52, 
 
 63. 
 
 Co., Stimpson v. 
 
 44; 
 
 195. 
 
 Monmouth M. F. Insurance 
 
 48, 
 
 307. 
 
 Co., Tomlinson v. 
 
 
 
 Monson, Fairiield v. 
 
 48, 
 
 247. 
 
 Montgomery, Smith v. 
 
 50, 
 
 171. 
 
 Moor, Prye v. 
 
 52, 
 
 132. 
 
 Moore, Pillsbury v. 
 Moran, Hathaway v. 
 Morey, Freeman v. 
 Morrill, Eonney v. 
 Morrill, Miller v. 
 Morrill, Plummer v. 
 Morrill, Quimby v. 
 Morrill, Smith v. 
 Morrill, Smith v. 
 Morrill, Win slow v. 
 Morse, Adams v. 
 Morse, Harris v. 
 Morse, Holmes v. 
 Morse, Parks v. 
 Moses, Orr v. 
 Moses, Patten v. 
 Moses, Snow v. 
 Moses, Tuck v. 
 Moulton, Sanford v. 
 Moulton, Scruton v. 
 Mount Hope Iron Co., Jen- 
 
 ness V. 
 Mower, Arnold v. 
 Munroe, Eaton v. 
 Munroe, Stickney v. 
 Mussey, Proprietors of Union 
 
 Wharf, V. 
 Mussey, Shaw v. 
 Myrick, Bailey v. 
 Myrick, Bailey v. 
 
 N. 
 
 47, 132. Nason, Eaton v. 
 
 50, 301. Neal, Maine M. M. Ins. Co. v. 
 
 48, 266. Neal, Woodman v. 
 48, 410. Newbegin, Bonzey v. 
 
 52, 336. New England F. & M. Ins. Co., 
 
 Ko. Berwick Co. v. 
 
 51, 40. Newman, Humphreys v. 
 55, 172. New Portland, Kingsfield v. 
 
 47, 183. New Portland, Starks v. 
 
 48, 565. New Tineyard, Frankfort v. 
 
 53, 383. Nichols, Grout v. 
 55, 227. Noble, Sawyer v. 
 
 53, 163. Norcross, Norcross v. 
 
 50, 72. 
 
 53, 158. 
 48, 73. 
 55, 103. 
 45, 281. 
 
 55, 230. 
 
 54, 256. 
 45, 106. 
 
 56, 458. 
 47, 189. 
 '50, 378. 
 56, 339. 
 56, 211. 
 
 Norris, Skillings v. 
 Norton, Abbott v. 
 Norton, City Bank v. 
 Norton, Look v. 
 Norton, Simpson v. 
 Nourse, Brown v. 
 Nourse, Hewey v. 
 Noyes, Jarvis v. 
 Noyes, Morrill v. 
 Noyes, State v. 
 Nutter, Heath v. 
 Nutter, Kand v. 
 Nye, Norton v. 
 
 51, 308. Oakes, Marshall v. 
 
 50, 188. O'Brien, Rose v. 
 
 49, 594. O'Connor, State v. 
 
 49, 31. Oldtown, Perley v. 
 56, 47. Orland, Ellsworth v. 
 
 50, 529. Orono, Milford v. 
 
 51, 85. Osborne, McLellan v. 
 
 o. 
 
 51, 118. 
 
 53, 422. 
 
 53, 133. 
 
 54, 372. 
 45, 419. 
 45, 419. 
 
 Osborne, McLeUan v. 
 Osgood, Walker v. 
 Otis, Granite State Bank \ 
 Owen, Fenderson v. 
 Oxford County, Conant v. 
 Oxford County, Jones v. 
 
 56, 395. Packard, Horsey v. 
 
 55, 142. Page, Hovey v. 
 
 51, 480. Palmer, Adams v. 
 
 48, 251. Palmer, Hunkins v. 
 
 51, 73. Palmer, Weston -v. 
 
 50, 125. Palmer, Whitten v. 
 
 48, 405. Parcher, Griffin v. 
 
 55, 355. Parker, Hay v. 
 
xlviii 
 
 TABLE OF CASES. 
 
 52, 502. Parker, Humphries v. 
 56, 557. Parker, Jordan v. 
 
 45, 474. Parker, Lyon v. 
 
 51, 388. Parker, McKeen v. 
 55, 235. Parker, Putnam v. 
 
 53, 252. Parker, Scarboro v. 
 
 54, 263. Parker, Stiickland v. 
 
 45, 41. Patten, Balch v. 
 49, 383. Patten, State v. 
 
 49, 570. Patterson, Cooley v. 
 
 52, 472. Patterson, Cooley V. 
 
 51, 299. Pearce, Furlong v. 
 49, 97. Pearson, Crane v. 
 47, 352. Pearson, Gihnan v. 
 
 49, 100. Pearson, Leighton v. 
 
 55, 39. Pearson, Patten v. 
 
 55, 570. Pearson, Phillips v. 
 
 53, 497. Pease, Simpson v. 
 53, 284. Peck, State v. 
 
 50, 589. Pennel, Beach v. 
 
 52, 402. Pennell, McLellan v. 
 
 52, 162. Pennell, Moore V. 
 
 51, 52. Pennell, Wood V. 
 
 56, 15. Penobscot, Holt v. 
 56, 11. Penobscot, Verona v. 
 
 52, 584. Penobscot County, Abbott v. 
 
 46, 162. Pen. & Ken. K. K. Co., Wy- 
 
 man v. 
 
 53, 419. Penobscot Mut. F. Ins. Co., 
 
 Martin v. 
 
 44, 140. Pen. K. K. Co., Gowen v. 
 49, 119. Pen. K. E. Co., Veazie v. 
 55, 490. Perkins, Bucknam v. 
 
 55, 517. Perkins, Call v. 
 
 47, 557. Perkins, Cutter v. 
 
 54, 393. Perkins, Jones v. 
 
 53, 414. Perley, Bachelder v. 
 
 54, 493. Perry, Solon v. 
 
 53, 228. Persons Unknown, Brackettv. 
 
 55, 469. Peru, Livermore v. 
 
 56, 222. Philbrick, Ghdden v. 
 
 45, 340. Phillips, Childs v. 
 
 45, 405. Phillips, New Vineyard v. 
 
 48, 300. Phinney, Hartshorn v. 
 
 55, 193. Phipsburg, Hamilton v. 
 52, 333. Phoenix Ins. Co., Fox v. 
 
 56, 562. Phoenix Ins. Co., Lancy v. 
 
 53, 65. 
 
 45, 367. 
 
 52, 560. 
 
 51, 478. 
 
 53, 71. 
 47, 435. 
 
 46, 461. 
 
 47, 449. 
 
 53, 118. 
 
 52, 322. 
 
 54, 55. 
 
 50, 
 
 217. 
 
 41, 
 
 323. 
 
 53, 
 
 124. 
 
 55, 
 
 337. 
 
 46, 
 
 44. 
 
 55, 
 
 381. 
 
 56, 
 
 77. 
 
 53, 
 
 458 
 
 46, 
 
 42. 
 
 51, 
 
 457 
 
 45, 
 
 241 
 
 48, 
 
 291 
 
 54, 
 
 173 
 
 55, 438. 
 
 56, 531. 
 56, 234. 
 47, 573. 
 
 47, 487. 
 
 47, 55. 
 55, 546. 
 
 53, 147. 
 51, 563. 
 51, 558. 
 
 54, 389. 
 
 48, 367. 
 54, 398. 
 
 Ins. Co., 
 Ins. Co., 
 Ins. Co., 
 
 Pierce, Bragg v. 
 Pierce^ Hiram v. 
 Pierce, Eichards v. 
 Pierce, Treat v. 
 Pierce, Treat v. 
 Pike, Crehore v. 
 Pike, Dunning v. 
 Pillsbury, State v. 
 Pisoataqua F. & M. 
 
 Dyer v. 
 Pisoataqua F. & M. 
 
 Emery v. 
 Pisoataqua F. & M. 
 
 Stephenson v. 
 Plummer, State v. 
 Poland, Bragdon v. 
 PoUand, State v. 
 Porter, Carter v. 
 Portland, Chadwick v. 
 Portland, Cobb v. 
 Portland, Cumb. & Ox. Canal 
 
 Corp. V. 
 Portland, Ferrin V. 
 Portland, Franklin Wharf Co.v. 
 Portland, Oilman v. 
 Portland, Preble v. 
 Portland Co., Beauheu v. 
 Port. & Ken. E. E. Co., Ken. & 
 
 Port. E. K. Co. V. 
 Port. & Eochester E. E. Co., 
 
 Hill V. 
 Port. & Eochester E. E. Co., 
 
 Esley V. 
 Port., Saco & Portsmouth E. 
 
 K. Co., Knight v. 
 Port., Saco & Portsmouth E. 
 
 E. Co., Perkins v. 
 Potter, Maxwell v. 
 Pratt, Clark v. 
 Pratt, Clark v. 
 Pratt, Leavitt v. 
 Pratt, Lumberman's Bank v. 
 Pratt, Soper v. 
 Prescott, Emery v. 
 Prescott, Whittier v. 
 Pullen, Kingfield v. 
 
 51, 395. Quimby, State v. 
 
 Q. 
 
 R. 
 
 50, 362. Eackliff, Penlason v. 
 
 55, 252. Eamsdell, Buffum v. 
 
 48, 244. Eand, Shepherd v. 
 53, 355. Eandall, Crooker v. 
 46, 79. Eandall, Furlong v. 
 45, 438. Eandall, Eoach v. 
 
 49, 446. Eandall, Sturtevant v. 
 53, 149. Eandall, Sturtevant v. 
 
 56, 488. Eecord, Stevens v. 
 
 47, 500. Eecord, Thomas v. 
 
 52, 466. Eedington, Waterville Bank v. 
 
 53, 487. Eeed, Berry v. 
 51, 325. Eeed, Bigelow v. 
 
 48, 386. Eeed, Judkins v. 
 46, 168. Eeed, Nash v. 
 53, 527. Eeed, Eeed v. 
 46, 321. Eeed, Stewart v. 
 53, 62. Eeily, Downes v. 
 
TABLE OF CASES. 
 
 xlix 
 
 46, 303. 
 
 Elce, Cushing v. 
 
 56, 
 
 22. 
 
 45, 507. 
 
 Kich, Coffin v. 
 
 45, 
 
 496. 
 
 52, 115. 
 
 Kioh, Noyes v. 
 
 52, 
 
 118. 
 
 45, 552. 
 
 Kich, Preachers 'Aid Society v. 
 
 45, 
 
 116. 
 
 44, 182. 
 
 Eichards, Husten v. 
 
 52, 
 
 68. 
 
 44, 79. 
 
 Eichardson, Mills v. 
 
 
 
 45, 193. 
 
 Eideout, Larrabee v. 
 
 50, 
 
 123. 
 
 54, 463. 
 
 Eider, Sibley v. 
 
 53, 
 
 110. 
 
 54, 426. 
 
 Eidlon, Eraokett v. 
 
 44, 
 
 104. 
 
 49, 460. 
 
 Eoberts, Bubier v. 
 
 45, 
 
 493. 
 
 48, 35. 
 
 Eoberts, Drew v. 
 
 47, 
 
 456. 
 
 53, 399. 
 
 Eoberts, Pratt v. 
 
 51, 
 
 556. 
 
 49, 127. 
 
 Eoberts, Prentiss v. 
 
 52, 
 
 261. 
 
 48, 548. 
 
 Eoberts, Eioh v. 
 
 45, 
 
 571. 
 
 50, 395. 
 
 Eoberts, Eich v. 
 
 49, 
 
 367. 
 
 .-52, 590. 
 
 Eoberts, Sargent v. 
 
 49, 
 
 330. 
 
 1 44, 247. 
 
 Eoberts, Thayer v. 
 
 
 
 48, 257. 
 
 Eoberts, Willis v. 
 
 52, 
 
 409. 
 
 52, 54. 
 
 Eobinson, Mustard v. 
 
 47, 
 
 443. 
 
 49, 285. 
 
 Eobinson, State v. 
 
 
 
 Eooklaiid, Buoksport v. 
 Eockland, Mitchell v. 
 Eockland, Mitchell v. 
 Eockland Ins. Co., Thomas v. 
 Eockland Wator Power Co., 
 
 Clark V. 
 Eogers, Spaulding v. 
 Eokes, Lawrence v. 
 EoUins, Chick V. 
 EoUins, Moore v. 
 Eoss, Burnham v. 
 Eoss, Stinson v. 
 Eouse, Stinson v. 
 Eowe, Withee v. 
 Eowell, Church v. 
 Eowell, Trustees of M. & S. 
 
 Fund in Solon v. 
 Eowse, Farrin v. 
 EusseU, Davis v. 
 
 s. 
 
 53, 
 
 531. 
 
 Sager, Fessenden v. 
 
 56, 
 
 483. 
 
 48, 
 
 432. 
 
 Sanborn, Fogg v. 
 
 45, 
 
 386. 
 
 > 44, 
 
 80. 
 
 Sanborn, Nowell v. 
 
 45, 
 
 386. 
 
 V 46, 
 
 47, 
 
 ' 52, 
 
 470. 
 
 Sanborn, Walker v. 
 
 50, 
 
 212. 
 
 471. 
 
 Sanborn, Webster v. 
 
 45 
 
 17. 
 
 355. 
 
 Sands, Hall v. 
 
 48, 
 
 468. 
 
 49, 
 
 566. 
 
 Sanford, Morrill v. 
 
 47, 
 
 293. 
 
 51, 
 
 127. 
 
 Sanford, Moulton v. 
 
 45, 
 
 445. 
 
 55, 
 
 69. 
 
 SangerviUe, French v. 
 
 56, 
 
 515. 
 
 51, 
 
 423. 
 
 Sargent, Bates v. 
 
 56, 
 
 174. 
 
 55, 
 
 543. 
 
 Savage, Chase v. 
 
 50, 
 
 67. 
 
 45, 
 
 90. 
 
 Savage, Pearce v. 
 
 51, 
 
 602. 
 
 51, 
 
 410. 
 
 Savage, Pierce v. 
 
 47, 
 
 34. 
 
 53, 
 
 179. 
 
 SawteUe, Holmes v. 
 
 
 
 46, 
 
 317. 
 
 Sawyer, Bartlett v. 
 
 49, 
 
 9. 
 
 53, 
 
 24. 
 
 Sawyer, Dwinel v. 
 
 
 
 44, 
 
 332. 
 
 Sawyer, Lewis v. 
 
 47, 
 
 143. 
 
 46, 
 
 160. 
 
 Sawyer, Powers v. ' 
 
 50, 
 
 468. 
 
 55, 
 
 139. 
 
 Sawyer, Smith v. 
 
 52, 
 
 141. 
 
 49, 
 
 320. 
 
 ScaleSjDevoll v. 
 
 49, 
 
 242. 
 
 51, 
 
 101. 
 
 Sch. Dist. No. 7 in Falmouth, 
 
 48, 
 
 470. 
 
 
 
 Starbird v. 
 
 54; 
 
 112. 
 
 52, 
 
 522. 
 
 Sch. Dist. No. 7 in Liberty, Col- 
 
 48, 
 
 135. 
 
 
 
 lins v. 
 
 49, 
 
 564. 
 
 45, 
 
 299. 
 
 Sch. Dist. in Shapleigh, Web- 
 
 53, 
 
 79. 
 
 
 
 ber V. 
 
 45, 
 
 522. 
 
 51, 
 
 480. 
 
 Schwartz, Adams v. 
 
 46, 
 
 490. 
 
 54, 
 
 352. 
 
 Sewall, Conway Fire Ins. Co. v. 
 
 46 
 
 544. 
 
 50, 
 
 220. 
 
 Sewall, Mariners Bank v. 
 
 47, 
 
 254. 
 
 54, 
 
 142. 
 
 SewaU, Potter v. 
 
 49, 
 
 385. 
 
 55, 
 
 374. 
 
 Shattuck, Merrill v. 
 
 55, 
 
 92. 
 
 55, 
 
 370. 
 
 Shattuck, Merrill v. 
 
 47, 
 
 298. 
 
 SO, 
 
 36. 
 
 Shaver, Eeadfield v. 
 
 47 
 
 345. 
 
 56, 
 
 291. 
 
 Shaw, Howe v. 
 
 56 
 
 297. 
 
 47, 
 
 88. 
 
 Shaw, Moor v. 
 
 44 
 
 72. 
 
 56, 
 
 427. 
 
 Shaw, Prentiss v. 
 
 44; 
 
 118. 
 
 56, 
 
 306. 
 
 Shaw, Eowe v. 
 
 54, 
 
 147. 
 
 45, 
 
 331. 
 
 Shaw, Tobin v. 
 
 SI, 
 
 174. 
 
 49, 
 
 312. 
 
 Shepherd, Tufts v. 
 
 53, 
 
 89. 
 
 47, 
 
 248. 
 
 Shuman, Bliss v. 
 
 47, 
 
 275. 
 
 52, 
 
 138. 
 
 Sidelinger, Hanley v. 
 
 50, 
 
 57. 
 
 45, 
 
 133. 
 
 Skillings, No. Yarmouth v. 
 
 46, 
 
 528. 
 
 53, 
 
 171. 
 
 Skofield, Folsom v. 
 
 47; 
 
 182. 
 
 Skofield, OiT V. 
 
 Skolfield, Pratt v. 
 
 Skolfield, Eichardson v. 
 
 Slater, Castner v. 
 
 Small, Gillerson v. 
 
 Small, Lawrence v. 
 
 Small, Potter v. 
 
 Small, Thompson v. 
 
 Smalley, Angier v. 
 
 Smiley, Forbes v. 
 
 Smiley, Thompson v. 
 
 Smith, Ames v. 
 
 Smith, Bang., Old. & MU. E. E. 
 
 Co. V. 
 Smith, Bang., Old. & Mil. E. E. 
 
 Co. V. 
 Smith, Campbell v. 
 Smith, Cummings v. 
 Smith, Drown v. 
 Smith, Holmes v. 
 Smith, Staples v. 
 Smith, Treat v. 
 Smith, Williams v. 
 Smith, Williams v. 
 Smith, Woodman v. 
 Smith, Wyman v. 
 SneU, Brown v. 
 Snell, Pingree v. 
 Snow, Dyer v. 
 Solon, Norridgewock v. 
 Somerby, Bragdon v. 
 Som. & Ken. E.E.Co., Harris v. 
 Som. & Ken. E. E. Co., Wells v. 
 Soper, Bean v. 
 Soper, Lewis v. 
 Soper, Wilson v. 
 Southard, Foye v. 
 So. Berwick, Gale v. 
 So. Berwick, Huntress v. 
 So. Ken. Agr. Soc, Brown v. 
 Spaulding, Mills v. 
 Spencer, Garland v. 
 Spencer, Jones v. 
 
TABLE OF CASES. 
 
 46, 
 
 408. 
 
 47, 
 
 18. 
 
 55, 
 
 190. 
 
 50, 
 
 354. 
 
 52, 
 
 202. 
 
 56, 
 
 342. 
 
 47, 
 
 515. 
 
 45, 
 
 547. 
 
 52, 
 
 65. 
 
 48, 
 
 123. 
 
 45, 
 
 320. 
 
 44, 
 
 496. 
 
 55, 
 
 491. 
 
 48, 
 
 400. 
 
 50, 
 
 381. 
 
 52, 
 
 281. 
 
 52, 
 
 592, 
 
 48, 
 
 568. 
 
 45, 
 
 596. 
 
 49, 
 
 362. 
 
 51, 
 
 78. 
 
 47, 
 
 357. 
 
 Spofiford, Thomas v. 
 
 53, 
 
 548. 
 
 Sprague, Mason v. 
 
 47, 
 
 419. 
 
 Sprague, Swett v. 
 
 48, 
 
 458. 
 
 Sprague, Wilder v. 
 
 48, 
 
 462. 
 
 Spratt, Thurston v. 
 
 45, 
 
 608. 
 
 Standish, Mayberry v. 
 
 47, 
 
 340. 
 
 Stanley, Porter v. 
 
 53, 
 
 493. 
 
 Stanley, Smith v. 
 
 55, 
 
 76. 
 
 Stanwood, Merrill v. 
 
 47, 
 
 355. 
 
 Staples, Nason v. 
 
 50, 
 
 595. 
 
 Staples, State v. 
 
 48, 
 
 163. 
 
 Staples, Sylvester v. 
 
 54, 
 
 24. 
 
 Starbird, Lee v. 
 
 47, 
 
 120. 
 
 Star, Wiswell v. 
 
 51, 
 
 321. 
 
 Star, Wiswell v. 
 
 50, 
 
 87. 
 
 Starrett, Butler v. 
 
 46, 
 
 34. 
 
 Steam UTavigation Company, 
 
 50, 
 
 290. 
 
 Sprague v. 
 
 53, 
 
 100. 
 
 Stearns, Sch. Dist. No. 1 in 
 
 49, 
 
 448. 
 
 Jackson v. 
 
 
 
 Stetson, Bounds v. 
 
 46, 
 
 414. 
 
 Stevens, Adams v. 
 
 53, 
 
 438. 
 
 Stevens, Jordan v. 
 
 48; 
 
 368. 
 
 Stevens, State v. 
 
 44, 
 
 496 
 
 Stevens, State v. 
 Stewart, Hunter v. 
 Stickney, Munroe v. 
 Stickney, Munroe v. 
 Stimpson, State v. 
 Stinchfield, Booker v. 
 Stinson, Davis v. 
 Stockwell, Wood v. 
 Stoddard, Patterson v. 
 Storer, Union Bank v. 
 Stover, Nutter v. 
 Stoyell, State v. 
 Stratton, Wilson v. 
 Strickland, Lincoln v. 
 Stuart, Norcross v. 
 Sturdevant, Hull v. 
 Sumner, Hix v. 
 Swanton, Leach v. 
 Swanton, Maine Mut. 
 
 Ins. Co. V. 
 Swazey, Partridge v. 
 Sweetsir, State v. 
 Swift, Day v. 
 Sylvester, Staples v. 
 
 Marine 
 
 T. 
 
 53, 
 
 511. 
 
 49, 
 
 381. 
 
 45, 
 
 322. 
 
 45, 
 
 392. 
 
 48, 
 
 398. 
 
 56, 
 
 490. 
 
 50, 
 
 197. 
 
 46, 
 
 480. 
 
 51, 
 
 503. 
 
 56, 
 
 32. 
 
 56, 
 
 126. 
 
 46; 
 
 83. 
 
 52, 
 
 278. 
 
 50, 
 
 376. 
 
 48, 
 
 316. 
 
 5i; 
 
 380. 
 
 48, 
 
 20. 
 
 46, 
 
 302. 
 
 Tabor, Maynard v. 
 
 Taylor, Ames v. 
 
 Taylor, State v. 
 
 Thing, Heald v. 
 
 Thomas, May v. 
 
 Thomas, State v. 
 
 Thomaston Mut. Ins. Co., 
 
 Clifford V. 
 Thompson, Brett v. 
 Thoms, Norcross v. 
 Thorndike, Johnson v. 
 Thurston, Brown v. 
 Tiney, Huntress v. 
 Tinker, Allen v. 
 Tisdale, Packard v. 
 Tolford, Libbey v. 
 Toothaker, Dyer v. 
 Towle, Badger v. 
 Towle, Hathorn v. 
 
 49, 404. Tozier, State v. 
 
 49, 210. Treat, Kankins V. 
 
 49, 309. Treat, Waterman v. 
 48, 560. Troy, Boothby v. 
 55, 284. Tucker, Deering v. 
 
 48, 373. Tucker, Knox v. 
 
 46, 367. Tucker, Madden v. 
 45, 316. Tucker, Palmer v. 
 
 47, 506. Tuel, Kawson v. 
 55, 180. Tufts, Bunker v. 
 55, 183. Tufts, Moore v. 
 
 50, 127. Turner, Barrows v. 
 
 45, 423. Turner, State v. 
 53, 225. Turner, York Co. 
 
 Co. V. 
 
 46, 288. Tuttle, Gleason v. 
 44, 459. Tuttle, Parker v. 
 
 49, 252. Tyler, Lane v. 
 
 M. F. Ins. 
 
 u. 
 
 49, 181. Underwood, State v. 
 56, 231. Union Ins. Co., Treat v. 
 
 45, 104. Union Life Ins. Co., Mitch 
 
 eUv. 
 51, 110. UnionM.F. Ins. Co., Barnes V. 
 
 46, 500. Union M. F. Ins. Co., Bart- 
 
 lett V. 
 
 48, 558. Union M. F. Ins. Co., Her- 
 rick V. 
 
 -52, 180. Union M. F. Ins. Co., New- 
 hall V. 
 
 54, 224. Union Mut. Life Ins. Co., 
 Easterbrook v. 
 
TABLE OF CASES. 
 
 50, 64. ■ Vassalboro', Brann v. 
 
 47, 85. Veazie, Bradley v. 
 
 44, 167. Veazie, Dwinel v. 
 
 50, 479. Veazie, Dwinel v. 
 
 50, 479. Veazie, Dwinel v. 
 
 54, 408. Verrill, State v. 
 
 V. 
 
 54, 581. 
 49, 356. 
 
 55, 108. 
 
 52, 576. 
 45, 54. 
 
 53, 36. 
 
 Verrill, State v. 
 Vining, Braokett v. 
 Violette, Mysroll v. 
 Virgin, Farnum v. 
 Vose, Parker v. 
 Vose, Robbins v. 
 
 w. 
 
 48, 66. Wadleigh, Thompson v. 
 54, 291. Wakefield, Drew v. 
 
 44, 275. Waite, Rogers v. 
 
 52, 187. Waldo Mut. Ins. Co., Russ v, 
 54, 150. Waldoboro', Bulflnch v. 
 
 50, 80. Waldron, Cooper v. 
 
 51, 104. Walker, Dyer v. 
 
 54, 18. Walker, Dyer V. 
 56, 70. Walker, Hilton v. 
 
 49, 419. Walker, Magoun v. 
 
 46, 280. Walker, Tuttle v. 
 56, 167. Wall, American Bank v. 
 51, 382. Walton, Carson v. 
 49, 87. Ward, Bates v. 
 
 51, 191. Ward, Bourne v. 
 
 55, 61. Wardwell, Clark v. 
 
 56, 146. Wardwell, Sawtelle v. 
 
 47, 217. Warren, Ayer v. 
 
 45, 216. Warren, Humphrey v. 
 
 49, 322. Warren, Lewis v. 
 
 55, 18. Warren, Simpson v. 
 
 56, 360. Warren, Warren v. 
 
 46, 460. Washington, Belfast v. 
 
 47, 161. Watson, Brown v. 
 46, 362. Watson, Scott v. 
 
 53, 300. Watson, Wood v. 
 53, 462. Webb, Bradley v. 
 56, 100. Webb, Tillock v. 
 45, 615. Webster, Stevens v. 
 
 45, 270. Webster, Worthing v. 
 44, 49. Wedgewood, Orono v. 
 
 44, 45. Weeks, Bent v. 
 
 46, 524. Weeks, Bent v. 
 
 52, 456. Weeks, Penobscot R. R. Co. v. 
 56, 102. Weeks, Robinson v. 
 
 52, 588. Weld, Lowe v. 
 55, 145. Wells, Dudley V. 
 55, 433. Wells, Getchell v. 
 
 50, 584. Wells, Scammon v. 
 
 45, 483. Welt. Benner v. 
 
 46, 15. West, Whipple v. 
 
 46, 15. West, White Mountain Bank V. 
 
 53, 523. West Gardiner, Manchester v. 
 45, 524. Weston, Som. & Ken. R. R. 
 
 Co. V. 
 
 47, 238. Weymouth, Page v. 
 
 45, 481. Weymouth, Pierce v. 
 
 46, 15. Whipple, Carleton v. 
 49, 479. White, Brookings v. 
 
 47, 504. White, Gerrey v. 
 
 45, 445. White, Thompson v. 
 49, 527. Whitehouse, Milliken v. 
 
 46, 15. White Mountain Bank, Carle- 
 
 ton V. 
 
 52, 185. 
 48, 516. 
 50, 322. 
 
 50, 337. 
 46, 382. 
 
 51, 233. 
 
 48, 351. 
 
 49, 235. 
 48, 314. 
 
 45, 544. 
 51, 566. 
 51, 594. 
 
 48, 287. 
 
 50, 450. 
 
 46, 230. 
 55, 42. 
 
 51, 196. 
 
 55, 182. 
 
 49, 16. 
 
 49, 558. 
 
 52, 343. 
 51, 226. 
 
 50, 403. 
 
 45, 207. 
 
 46, 314. 
 
 44, 11. 
 
 50, 62. 
 46, 436. 
 
 51, 264. 
 
 48, 196. 
 
 46, 348. 
 54, 399. 
 
 53, 348. 
 
 56, 319. 
 51, 445. 
 
 54, 250. 
 
 51, 29. 
 
 47, 165. 
 
 52, 237. 
 56, 150. 
 
 49, 26. 
 
 48, 252. 
 56, 45. 
 
 45, 447. 
 
 45, 216. 
 
 49, 14. 
 49, 29. 
 
 46, 464. 
 
 44, 442. 
 
 53, 328. 
 
 45, 399. 
 44, 433. 
 44, 121. 
 
 Whitmore, Conner v. 
 Whitney, Gary v. 
 Whitney, Gary v. 
 Whitney, Gary v. 
 Whitney, Demingv. 
 Whitney, Jewett v. 
 Whitney, Penley v. 
 Whitney, Willard v. 
 Whittier, Begg v. 
 Whittier, Wills v. 
 Widenham, Wilson v. 
 Wiggin, Patten v. 
 Wilbur, Dyer v. 
 Wilder, Trask v. 
 Wiley, Mlllay v. 
 Wilkinson, Patterson v. 
 Willard, Lord v. 
 Williams, Bunker v. 
 Williams, Garland v. 
 Williams, Richardson v. 
 Williams, Warren v. 
 Willis, Howe v. 
 Willis, Woodbui-y v. 
 Willis, Woodman v. 
 Wilson, Coe v. 
 Wilson, Wheelden v. 
 Wing, Marshall v. 
 Wingate, Rogers v. 
 Winslow, Davis v. 
 Winslow, Lambert v. 
 Winslow, Tyler v. 
 Winter, Keyes v. 
 Winter, Tainter v. 
 Winterport, Gastine v. 
 Winterport, Frankfort v. 
 Winterport, Frankfort v. 
 Witham, Brown v. 
 Witham, State v. 
 Witherell, Moulton v. 
 Wood, Kilgore v. 
 Wood, Orono Bank v. 
 Wood, Smith v. 
 Woodard, Egery v. 
 Woodbury, Concord U. M. F. 
 
 Ins. Co. V. 
 Woodbury, Humphrey v. 
 Wooderson, Forbes v. 
 Woodward, Lyons v. 
 Wording, Sargent v. 
 Wright, Smalley v. 
 Wright, State v. 
 Wyman, Atkins v. 
 Wyman, Childs v. 
 Wyman, Gushing v. 
 
-lii 
 
 TABLE OF CASES. 
 
 Y. 
 
 51, 
 
 198. 
 
 Teaton, Metcalf v. 
 
 
 52, 
 
 82. 
 
 47; 
 
 308. 
 
 Teaton, Patterson v. 
 
 
 
 
 53, 
 
 125. 
 
 Yeaton, State v. 
 
 
 45, 
 
 207. 
 
 54, 
 
 386. 
 
 York, Cummings v. 
 
 
 
 
 45, 
 
 •158. 
 
 York Bank, Thornton v. 
 
 
 50, 
 
 549. 
 
 47 
 
 403. 
 
 YorkCo. M.F.Ins.Co.,Goiildv. 
 
 
 
 52, 
 
 82. 
 
 York & Cumb. K. K. Co 
 
 , Car- 
 
 55, 
 
 24. 
 
 
 
 roll V. 
 
 
 56, 
 
 219. 
 
 48, 
 
 147. 
 
 York& Cumb. R. B. Co., 
 son V. 
 
 Jack- 
 
 53, 
 
 555. 
 
 York & Cumb. E. E. Co., Ma- 
 son V. 
 
 York & Cumb. E. E. Co.,"Wood- 
 man v. 
 
 York & Cumb. E. E. Co.,Wood- 
 man v. 
 
 Young, Morton v. 
 
 Young, State v. 
 
 Young, Veazie Bank v. 
 
TABLE OF CONTENTS. 
 
 ABANDONMENT, 1 
 
 ABATEMENT, 1 
 
 I. What will abate a writ, or 
 other process, 1 
 
 (a) Want of jurisdiction, 1 
 
 (b) Non-joinder, 1 
 (o) Pendency of another ac- 
 tion, 2 
 
 II. How to take advantage of 
 
 matters in abatement, 2 
 
 (a) How matters in abatement 
 
 must he pleaded, ' 2 
 
 (b) When pleas and motions 
 
 in abatement must he 
 made and filed, 3 
 
 (c) Wliat icill he a waiver of 
 
 matters in ahatement, 3 
 
 (d) What will support a plea 
 
 in ahatement, 3 
 
 III. Form of plea, 4 
 
 ACCESSION, 4 
 
 ACCOED AND SATISFACTION, 4 
 ACCOUNT MUTUAL, 5 
 
 ACCOUNT, 5 
 
 ACTIONS AND REMEDIES IN 
 
 GENERAL, 6 
 
 I. By and against whom, and for 
 
 what, an action will lie, 6 
 
 II. Commencement of actions, 9 
 ADOPTION AND ACCEPTANCE, 10 
 ADULTERY, 10 
 
 ADVANCEMENT, 10 
 
 AGENCY, 10 
 
 I. Appointment and revocation, 
 
 and how proved, 10 
 
 n. Extent of authority, and del- 
 egation of power, 11 
 
 III. Ratification and adoption, 12 
 
 IV. Liability of principal for acts 
 
 of agents, 12 
 
 V. Liability of agents, 12 
 
 VI. Rights and remedies of prin- 
 cipals and agents, 13 
 VIL Factors, 13 
 VIII. Pleading and evidence, 13 
 AGREEMENT, 14 
 ALIENATION, 14 
 ALIMONY, 14 
 AMENDMENT, 15 
 I. General principles, 15 
 II. Of writs and declarations, 15 
 
 III. Of pleadings, 17 
 
 IV. Of records, judgments, and 
 
 executions, 18 
 
 V. Of officers' returns, 18 
 
 VI. Other cases, 18 
 
 AMERICAN BANK, 19 
 ANDROSCOGGIN RAILROAD, 19 
 APPEAL, 20 
 I. In what cases an appeal lies, 20 
 II. Security to prosecute an ap- 
 peal, 21 
 
 III. Effect of an appeal, and pro- 
 
 ceedings in the appellate 
 court, 21 
 APPRENTICE AND APPRENTICE- 
 SHIP, 22 
 APPROPRIATION OF PAYMENT, 22 
 AQUATIC RIGHTS, 22 
 ARBITRATION, 22 
 I. Submission, 22 
 II. Authority and duty of arbitra- 
 tors, 23 
 IIL Award, 23 
 
 IV. Effect of the award, and how 
 
 enforced or avoided, 25 
 
 ARREST, 25 
 
 ARREST OP JUDGMENT, 26 
 
 ARSON, 26 
 
 ASSAULT AND BATTERY, 26 
 
 ASSEMBLY, UNLAWFUL, 26 
 
 ASSESSOR, 27 
 
 ASSETS, 27 
 
 ASSIGNMENT, 27 
 I. Of choses in action and other 
 
 rights, 27 
 
 II. Effect of an assignment, 28 
 III. Assignment for the benefit 
 
 of creditors, 28 
 
 ASSUMPSIT, 30 
 I. When assumpsit will or will 
 
 not lie, 30 
 II. For money had and received, 
 
 and generally, 33 
 
 III. For labor and services, 35 
 
 IV. Pleadings, evidence, and 
 
 practice, 35 
 ATLANTIC & ST. L. RAILROAD 
 
 COMPANY, 86 
 
 ATTACHMENT, 37 
 I. What property is attachable, 
 
 and when, 37 
 
 II. Validity of an attachment, 39 
 
 (a) General principles, 39 
 
 (b) Personal property, 39 
 
 (c) JReal estate, 39 
 
 III. How defeated or dissolved, 40 
 
 (a) Negligence, or misdoings 
 
 of the officer, • 40 
 
 (b) Otherwise, 41 
 
 IV. Effect, rights, and liabilities 
 
 arising from an attachment, 42 
 
liv 
 
 TABLE OF CONTENTS. 
 
 (a) Interest of the debtor, 42 
 
 (b) Bights and duties of the 
 
 officer, 42 
 
 (c) Powers and liabilities of 
 
 a receiptor, 43 
 
 ATTORNEY, 45 
 
 ATTORNEY AND COUNSELLOR, 45 
 
 I. Authority of an attorney, 45 
 
 II. Lien of an attorney, 46 
 
 AUCTION AND AUCTIONEER, 47 
 AUGUSTA, MUNICIPAL COURT 
 
 OF, 47 
 
 AWARD, 48 
 
 BAIL, 48 
 
 BAILMENT, 48 
 
 BANK, 51 
 
 BANKRUPTCY, 54 
 
 "BASTARDY, 54 
 
 BEACH, 55 
 
 BELLIGERENTS, 55 
 
 BETTERMENTS, 56 
 
 BETTING, 56 
 
 BIDDEFORD, CITY OF, 57 
 BILLS OF EXCHANGE, AND 
 
 PROMISSORY NOTES, 57 
 I. Form, construction, and va- 
 lidity, 57 
 
 (a) General requisites, 57 
 
 (b) Construction, 58 
 
 (c) Consideration, 59 
 
 ( d) Wlien a discharge of the 
 
 original cause of action, 59 
 
 (e) Wlien not valid, 59 
 
 (f) Notes payable in specific 
 
 articles, 60 
 
 II. Negotiability and transfer, GO 
 
 III. Acceptance, 61 
 
 IV. Presentment, demand, and 
 
 notice, 61 
 
 (a) When necessary, and 
 
 identity, 61 
 
 (b) By whom, and when to be 
 
 made, 62 
 
 (c) At what time and place, 62 
 
 (d) Waiver and modifications 
 
 of, by agreement or usage, [62 
 
 (e) Protest, 63 
 V. Liabilities and remedies of 
 
 the different parties, 63 
 
 VI. Actions on bills and notes, 65 
 
 (a) When, and by whom an 
 
 action is maintainable, 65 
 
 (b) When subject to equities 
 
 between the parties, 66 
 
 (c) Defenses. 67 
 VI. Pleadings and evidence, 69 
 
 BOND. 74 
 
 I. In general, 74 
 
 II. Construction and breach, 75 
 
 III. Pleadings and evidence, 75 
 
 BOOM, 76 
 
 BOUNTY, 77 
 
 BOUNDARIES OF LAND, 79 
 
 BREACH OF PROMISE OF MAH- 
 
 RIAGE, 79 
 
 BRIDGE, 81 
 
 BUILDINGS, 81 
 
 BURGLARY, 
 BY-LAW, 
 
 81 
 
 82 
 
 CANCELLATION, 82 
 
 CARRIER, 82 
 
 CASE, 82 
 
 CASES REAFFIRMED, EX- 
 PLAINED, AND OVER- 
 RULED, 84 
 CERTIORAJRI, 84 
 CHANCERY RULES, 86 
 CHARITABLE USES, 86 
 CHEATING BY FALSE PRE- 
 TENCES, 86 
 CITIZENSHIP, 87 
 COLLECTOR, 87 
 COLT, 89 
 COMMERCE, 89 
 COUNTY, 90 
 COMMON SELLER, 90 
 COMMUTATION, 91 
 COMPLAINT, 91 
 CONDITION, 93 
 I. When precedent, and sub- 
 sequent, 93 
 11. Generally, 94 
 CONFUSION OF GOODS, 94 
 CONSPIRACY, 94 
 CONSTABLE, 95 
 CONSTITUTIONAL LAW, 96 
 I. Organization of the depart- 
 ments of government, 96 
 II. Laws affecting contracts or 
 
 vested rights, 96 
 
 III. Ex post facto, and retro- 
 
 spective laws, 97 
 
 IV. Laws to take private prop- 
 
 erty for- public uses, 98 
 
 V. Other laws and general prin- 
 ciples, 98 
 CONTEMPT OF COURT, 100 
 CONTRACT, 101 
 I. Parties to a contract, 101 
 II. Validity of a contract, 102 
 
 III. Consideration, 103 
 
 IV. Rescission, 164 
 V. Waiver, or discharge, 104 
 
 VI. Construction, 105 
 
 (a) Dependent and independ- 
 
 ent stipulation, 105 
 
 (b) Particular agreements, 105 
 
 (c) In general, 108 
 CONTRIBUTION, 109 
 CONVERSION, 109 
 COPARTNERSHIP, 109 
 CORPORATIONS, 109 
 
 I. Transfer and sale of shares, 109 
 II. Corporate Powers, rights 
 
 and liabilities, 110 
 
 II. Rights, Liabilities of officers 
 
 and members. 111 
 
 IV. Pleadings and evidence, 114 
 
 COSTS, 116 
 
 I. Recovery of costs, 116 
 
 II. Costs in particular cases, 117 
 
 III. On an offer to be defaulted, 119 
 
 IV. When affected by the am't 
 
 of damages, 120 
 
TABLE OF CONTENTS. 
 
 Iv 
 
 COUPONS, 121 
 
 COUNTY, 122 
 
 COUNTY COMMISSIONEES, 122 
 
 COVENANT, 124 
 
 I. Constraction and breach, 124 
 
 II. Generally, 125 
 
 CREDITOR AND DEBTOR, 126 
 
 CRIMINAL LAW, 126 
 
 CURRENCY, 126 
 
 CUSTOM AND USAGE, 127 
 CUSTOM-HOUSE WHARF AND 
 
 PORTLAND PIER, 127 
 
 DAMAGES, 
 
 127 
 
 I. In actions on torts. 
 
 127 
 
 ( a) Against officers, 
 
 127 
 
 (b) Trespass, 
 
 128 
 
 (c) Trover, 
 
 129 
 
 (d) Other injuries. 
 
 129 
 
 11. In actions on contracts. 
 
 130 
 
 a) 'On simple contracts, 
 
 130 
 
 b) On covenants real, 
 
 181 
 
 c) On bonds generally, 
 
 1.31 
 
 DAMAGES LIQUIDATED, 
 
 132 
 
 DEATH, 
 
 132 
 
 DEBT, 
 
 132 
 
 DEDICATION, 
 
 132 
 
 DEED, 
 
 133 
 
 I. Parties, 
 
 133 
 
 II. Execution, consideration. 
 
 
 and cancellation. 
 
 133 
 
 III. Acknowledgment and reg- 
 
 
 istration, 
 
 134 
 
 IV. Errors in deeds. 
 
 135 
 
 V. Validity and efficacy, 
 
 136 
 
 VI. Construction, 
 
 137 
 
 (a) Conditions, reservations. 
 
 
 and exceptions. 
 
 137 
 
 (b) Boundaries, 
 
 138 
 
 (c) Generally, 
 
 143 
 
 DEMAND, 
 
 145 
 
 DEPOSITION, 
 
 146 
 
 I. When admissible in evi- 
 
 
 dence, 
 
 146 
 
 II. Caption, notice, taking, &c. 
 
 
 of depositions, 
 
 147 
 
 DESCENT AND DISTRIBUTION 
 
 148 
 
 DESERTER, 
 
 149 
 
 DEVISE AND LEGACY, 
 
 149 
 
 I. Of legatees and devisees 
 
 
 and their seisin. 
 
 149 
 
 II. When a devise is in fee or 
 
 
 otherwise. 
 
 150 
 
 III. Whether a devise or legacy 
 
 
 is specific, absolute, con- 
 
 
 tingent, or otherwise, 
 
 151 
 
 IV. Remedies for and against. 
 
 
 and generally, 
 
 152 
 
 DISTRICT COURT, 
 
 153 
 
 DIVORCE, 
 
 153 
 
 DOG, 
 
 154 
 
 DOMICIL, 
 
 155 
 
 DONATIO CAUSA MORTIS, ET 
 
 
 INTER VIVOS, 
 
 156 
 
 DOWER, 
 
 157 
 
 I. Of what a widow is dowa- 
 
 
 ble, 
 
 157 
 
 n. Bar of dower, 
 
 158 
 
 III. How dower is recoverable, 159 
 
 IV. GeneraUy, 161 
 DRAIN, 162 
 DRINKING-HOUSE AND TIP- 
 
 PLING-SHOP, 163 
 
 DURESS, 163 
 
 EASEMENT, 163 
 
 ELECTION, 164 
 
 EMANCIPATION, 164 
 
 ENTRY OP ACTION, 164 
 
 EQUITY OP REDEMPTION, 165 
 
 EQUITY, 165 
 
 I. Jurisdiction, 165 
 
 II. Practice, 167 
 
 IIL Pleadings, 171 
 
 IV. Evidence, 175 
 
 V. General principles, 175 
 
 (a) Trust, 176 
 
 (b) Fraud, 178 
 
 (c) Bills for specific perform- 
 
 ance, 179 
 
 (d) Bills to redeem, 181 
 
 (e) Other cases, 181 
 ERROR, 185 
 
 I. In what cases it will lie, 185 
 
 II. Proceedings and generally, 186 
 
 ESTOPPEL, 187 
 
 I. General principles, 187 
 
 II. By deed, 188 
 
 III. By other specialties and oth- 
 
 er contracts, 189 
 
 IV. By acts and declarations, 190 
 V. By matters of record, 193 
 
 EVIDENCE, 193 
 I. Production of the best evi- 
 dence, 194 
 
 (a) In case of writings lost, 
 
 or not produced, 194 
 
 (b) Copies, 194 
 
 (c) Generally, 195 
 II. Admissibility of evidence, 
 
 as respects its quality, 198 
 
 (a) Certainty, 196 
 
 (b) Belevancy, and herein of 
 
 custom and usage, 197 
 
 (c) Materiality, 197 
 
 (d) Entries, 198 
 
 (e) Opinion and reputation, 198 
 III. Admissibility of parol evi- 
 dence, to affect the con- 
 struction of writings, 200 
 
 (a) Generally, 200 
 
 (b) Evidence of the situation 
 
 or acts of the parties, 202 
 
 (c) In case of receipts, 203 
 
 (d) To control or explain 
 
 records and judgments, 203 
 rV. Presumptions, and prima 
 
 facie proof, 203 
 
 V. Burden of proof, 205 
 VI. Evidence, as applicable to 
 
 particular subjects, 207 
 
 (a) Insanity, 207 
 
 (b) Fraud, 207 
 
 (c) Handwriting, 208 
 
 (d) Judgments and records, 208 
 
Ivi 
 
 TABLE or CONTENTS. 
 
 (e) Records and corpora- 
 
 tions, 209 
 
 (f) Public records, docu- 
 
 ments, (fee, 209 
 
 LVn. Admissions, declarations, 
 
 and confessions, 210 
 
 (a) Bes gestCB, 210 
 
 (b) Admissions and declara- 
 
 tions of parties, 211 
 
 (c) Declarations of primes 
 
 and agents, 212 
 
 (d) Declarations of third 
 
 persons, 213 
 
 VIII. Weight, sufficiency, and 
 conclusiveness of evi- 
 dence ; former judgments, 213 
 IIX. Other principles, 215 
 
 EXCEPTIONS, 217 
 
 I. In what cases exceptions 
 lie, and what are grounds 
 of exceptions, 217 
 
 II. In other respects, 217 
 
 EXCESS, 223 
 
 EXECUTION, 223 
 
 I. Of issuing executions, and 
 their validity and dis- 
 charge, 223 
 II. Levies upon real estate, 223 
 
 (a) Generally. 224 
 
 (b) Appraisers, and the ap- 
 
 praisement, 227 
 
 (c) Betum of officer, 229 
 
 (d) Betuming and record- 
 
 ing the execution, 231 
 
 (e) Delivery of seisin, 232 
 
 (f ) Levies on equities of re- 
 demption, &c., 232 
 
 (g) Bedemption after an ex- 
 
 tent, or sale on execu- 
 tion, 233 
 m. Liens on personal property, 234 
 EXECUTOR AND ADMINISTRA- 
 TOR, 234 
 I. Appointment, powers, du- 
 ties, and liabilities, 234 
 
 (a) Interest in, and author- 
 
 ity over, the estate and 
 sales thereof, 234 
 
 (b) Generally, 235 
 II. Suits by and against, 236 
 
 (a) When maintainable, 236 
 
 (b) Pleadings, practice, &c., 237 
 EXEMPTION, 288 
 EXPERTS, 238 
 EXTENT, 238 
 
 FALSE PRETENCES, 
 
 238 
 
 FELONY, 
 
 238 
 
 FENCE, 
 
 238 
 
 PINES, 
 
 239 
 
 FIRE, 
 
 239 
 
 FISHERY, 
 
 240 
 
 FIXTURE, 
 
 240 
 
 PLATS, 
 
 241 
 
 FORCIBLE ENTRY AND DE- 
 TAINER, 241 
 FOREIGN LAWS, 243 
 FORGERY, 243 
 
 FRAUD AND FRAUDULENT 
 
 CONVEYANCE, 244 
 
 I. Fraud in general, and ac- 
 tions therefor, 244 
 n. Fraudulent contract, 246 
 
 III. Fraudulent conveyances, 246 
 
 IV. Fraudulent sales of person- 
 
 al property, 248 
 
 FRAUDS, STATUTE OF, 250 
 
 I. To answer for the debt, &c., 
 
 of another, 250 
 
 n. For the sale of lands, 250 
 
 in. For the sale of goods, 251 
 
 IV. Upon an agreement, not to 
 
 be performed within one 
 
 year, 252 
 
 FUGITIVE SLAVE, 253 
 
 GAMBLING, 253 
 
 GIFT, 258 
 
 GOVERNOR AND COUNCIL, 253 
 
 GRAND JURY, 254 
 
 GUARANTY, 254 
 
 GUARDIAN AND WARD, 254 
 
 HABEAS CORPUS, 256 
 
 HAY, 256 
 
 HIGHWAY SURVEYOR, AND 
 STREET COMMISSION- 
 ER, 257 
 HEIR, 257 
 HOLMES NOTE, 257 
 HOMESTEAD, 258 
 HOOP-POLES, 258 
 HOUSE OF CORRECTION, 258 
 HUSBAND AND WIFE, 259 
 I. Rights and liabilities of hus- 
 band, 259 
 II. Rights and liabilities of wife, 260 
 
 III. Their respective rights in 
 
 her property, 261 
 
 IV. Actions by and against hus- 
 
 band and wife, 261 
 
 IMPOUNDING, 261 
 IMPRESSMENT OF PROPERTY, 262 
 
 INCOME, 262 
 
 INCREASE, 262 
 
 INCUMBRANCE, 262 
 
 INDENTURE, 263 
 
 INDICTMENT, 263 
 
 I. What is indictable, 263 
 
 n. Pleading, 263 
 
 (a) Firming of the indict- 
 
 ment, 263 
 
 (b) Surplusage and certain- 
 
 ty, 263 
 
 (c) Duplicity and repugnan- 
 cy, 264 
 
 d) Other points, 265 
 
 e) Under statutes, 266 
 III. Practice and evidence, 266 
 
 INFANT, 268 
 
 INHABITANTS OP TOWNS, 269 
 
 INJUNCTION, . 269 
 
 INNKEEPER, 270 
 
 INNOCENT PURCHASER, 270 
 
 INSANE HOSPITAL, 270 
 
TABLE OF CONTENTS. 
 
 Ivii 
 
 rSTSANE PERSONS, 271 
 
 IKSOLVENT ESTATES, 272 
 
 DSrSOLVENT LAWS, 273 
 INSTRUCTIOK TO THE JURY, 273 
 
 INSURANCE, 273 
 
 I. Policy, 273 
 
 (a) Insurable interest, 273 
 
 (b) Validity, 273 
 
 (c) What will defeat, 276 
 
 (d) Generally, 277 
 II. Losses, 282 
 
 III. Marine insurance, 283 
 
 IV. Pleading, practice, and evi- 
 
 dence, 286 
 
 INTEREST, 289 
 
 INTOXICATING LIQUORS, 290 
 
 JOINT STOCK ASSOCIATION, 290 
 JOINT TENANT AND TENANT 
 
 IN COMMON, 290 
 
 I. Rights and liabilities, 290 
 
 II. Remedies, 292 
 
 JUDICIAL NOTICE, 293 
 
 JUDGMENT, 293 
 
 I. Rendition and entry of judg- 
 ment, 293 
 II. Arrest of, 294 
 III. Effect of, 294 
 
 (a) As to parties, 294 
 
 (b) Generally, 295 
 rV. Action on, and satisfaction 
 
 of, 296 
 
 V. Judgments of courts of oth- 
 er States, and foreign judg- 
 ments, 297 
 JURISDICTION, 298 
 JURORS, 298 
 JUSTICE OP THE PEACE AND 
 
 TRIAL JUSTICE, 299 
 
 KNOX COUNTT, 
 
 300 
 
 LACHES, 300 
 
 LAND AGENT AND LANDS RE- 
 SERVED FOR PUBLIC 
 USES, 300 
 
 LANDLORD AND TENANT, 302 
 
 I. Tenants at sufferance and 
 
 at will, 302 
 
 II. Rights and remedies, 303 
 
 (a) Against each other, 303 
 
 ( b ) Notice to quit, and deter- 
 
 mination of tenancies, 304 
 (o) Action for use and occu- 
 
 pation, 305 
 
 LAND WARRANT, 306 
 
 LARCENY, 306 
 
 LAW AND PACT, 307 
 
 I. What are questions of law, 307 
 
 II. What are questions of fact, 308 
 
 LEASE, 310 
 
 LEGISLATURE, 311 
 
 LETTER, 312 
 
 LIBEL AND SLANDER, 312 
 
 LIEN, 313 
 
 X. When a lien does or does 
 
 not exist, 313 
 
 II. 6enerally,and how enforced, 314 
 
 ni. How lost or discharged, 316 
 
 LIMITATIONS, STAT. OP,, 317 
 
 I. In general, 317 
 
 (a) Personal actions, 317 
 
 (b) Actions by and against 
 
 executors and adminis- 
 trators, 318 
 
 (c) Actions against sherds, 318 
 
 (d) Statute actions, 319 
 II. Exceptions and avoidance, 319 
 
 (a) Parties abroad, 319 
 
 (b) Attested note, 319 
 
 (c) Accounts, 319 
 
 (d) Payment, 319 
 
 (e) Other things, 320 
 LIQUOR, SPIRITUOUS AND IN- 
 TOXICATING, 321 
 
 I. Contracts in regard to, and 
 
 civil actions thereon, 321 
 
 II. Criminal processes, 323 
 
 III. Generally, 326 
 
 LOGS AND LUMBER, 326 
 
 LORD'S DAY, 327 
 
 MAIL 328 
 MAINTENANCE AND CHAM- 
 PERTY, 328 
 MALICIOUS PROSECUTION, 328 
 MANDAMUS AND PROHIBI- 
 TION, 329 
 MARRIAGE, 330 
 MARRIED WOMAN, 331 
 MASTER IN CHANCERY, 334 
 MASTER AND SERVANT, 334 
 MERGER, 335 
 MESNE PROFITS, 335 
 MILLS, 335 
 I. Rights and liabilities of the 
 
 different parties, 335 
 II. Flowage, and complaints 
 
 therefor, 338 
 
 III. Damages, 340 
 MINISTERIAL AND SCHOOL 
 
 FUND, 340 
 
 MITTIMUS, 341 
 
 MISTAKE, 341 
 
 MONEY, 341 
 
 MORTGAGE, 342 
 I. What constitutes a vaUd 
 
 mortgage, 342 
 II. Rights and interests of the 
 
 parties, 344 
 
 III. Transfer of rights in mort- 
 
 gaged estates, 347 
 
 (a) By contract, 347 
 
 (b) Under legal process, 348 
 
 IV. Discharge and extinguish- 
 
 ment of a mortgage, 348 
 
 V. Redemption, 349 
 
 (a) Who may redeem, when, 
 
 from lohom, and how, 349 
 
 (b) Adjustment of accounts, 351 
 (0) Bills in equity to redeem, 351 
 
 VI. Foreclosure, 355 
 VII. Actions at law and judg- 
 ment thereon, 357 
 VIII. Mortgage of chattels, 358 
 MURDER,, 361 
 
Iviii 
 
 TABLE OF CONTENTS. 
 
 NEW TRIAL, 362 
 
 I. Generally. 362 
 
 11. New discovered evidence, 363 
 
 III. Mistake or fault of jurors, 363 
 
 (a) Verdict against law or 
 
 evidence, 363 
 
 (b) Excessive or inadequate 
 
 damages, 365 
 
 (c) Misconduct of jurors, 365 
 
 IV. Errors of the court, 366 
 
 (a) Misstatement of the law, 366 
 
 (b) Admission of improper 
 
 evidence, 366 
 
 NEXT OF KIN, ' 366 
 
 NOLLE PEOSEQUI, 367 
 
 NONSUIT, 367 
 
 NOTICE AND NOTIFICATIONS, 368 
 NUISANCE, 368 
 
 OFFEE TO BE DEFAULTED, 370 
 
 OFFICER, 370 
 
 I. Authority and duty, 370 
 
 (a) Who may seme, 370 
 
 (bj How it may be served, 371 
 
 (c) Specific instructions, 371 
 
 (d) Beturn, 371 
 
 (e) In other rejects, 372 
 II. LiabiHties, 372 
 
 (a) Of sheriffs for acts of 
 
 their deputies, 372 
 
 (b) To creditors, 373 
 
 (c) To debtors, 374 
 
 (d) To others, 374 
 
 (e) Liability of deputies,^ 375 
 III. Justification, 376 
 
 OFFICEE DE FACTO, 376 
 
 OEDEE, 376 
 
 OVERSEERS OF THE POOR, 377 
 
 PARTITION, 377 
 I. By wliom and of what parti- 
 tion may be had, 377 
 II. Who may resist, and on 
 
 what grounds, 378 
 
 III. Proceedings, 379 
 
 IV. Effect, 381 
 PARTNERSHIP, 381 
 
 I. What does and what does 
 not constitute a partner- 
 ship, 381 
 II. Powers and liabilities of 
 
 partners, 381 
 
 (a) As it respects the part- 
 
 nership property, 382 
 
 (b) As it respects each other, 382 
 
 (c) How far one can bind the 
 
 firm, 384 
 
 III. Remedies against partners 
 
 and partnership property, 384 
 
 IV. Evidence, 385 
 PASSENGER, 385 
 PAUPER, 385 
 
 I. Settlement, 385 
 
 (a) By derivation, 386 
 
 (b) Incorporation, division, 
 
 and annexation of 
 towns, 387 
 
 (c) Residence five years, 388 
 
 (d) Domicil, 389 
 
 II. Liabilities of towns, 389 
 
 III. Actions, 391 
 
 (a) Between towns, 391 
 
 (b) Notice, 392 
 
 (c) Individuals againsttowns,394 
 Id) Towns aqainst individu- 394 
 
 als, 394 
 
 IV. Evidence, 395 
 
 PAYMENT, 396 
 
 I. What is payment and its 
 
 effect, 396 
 
 II. Appropriation of payments, 398 
 
 PAYMENT VOLUNTARY, 399 
 
 PEDDLER, 399 
 
 PENAL ACTION, 399 
 
 PENOBSCOT RIVER, 399 
 
 PERAMBULATION, 400 
 
 PERJURY, 400 
 
 PERSONAL PROPERTY, 400 
 
 PHYSICIANS AND SURGEONS, 401 
 
 PLEADING, 401 
 
 L Parties, 401 
 
 (a) Generally, 402 
 
 (b) Joinder of plaintiff', 402 
 
 (c) Joinder of defendant, 402 
 II. Declaration, 403 
 
 (a) General Rules, 403 
 
 (b) Declarations in particu- 
 
 lar actions, 403 
 
 (c) Joinder of counts, 404 
 
 (d) Wrong venue, 405 
 
 III. Results of pleadings 405 
 
 IV. General requisites of plead- 
 
 ings, 405 
 
 (a) Certainty and particu- 
 
 larity, 405 
 
 (b) Variance, 406 
 V. Special pleading generally, i06 
 
 VI. Admissions of pleading, 407 
 VII. Brief statements, counter 
 brief statements,and spec, 
 of defense, 408 
 
 PLEDGE, 410 
 
 POLICE, 410 
 
 POLL-TAX, 410 
 
 POLYGAMY, 410 
 
 POOR DEBTOR, 411 
 
 I. Arrest on mesne process, 411 
 II. Proceedings in obtaining 
 
 discharge, 411 
 
 (a) Application and notice, 
 
 and who may make, 411 
 
 (b) Justices and their selec- 
 
 tion, 411 
 
 (c) Examination and pro- 
 
 ceedings, 412 
 
 (d) Appraisal and assign- 
 
 ment of prop., 413 
 
 (e) Record and certificate of 
 
 discharge, 413 
 
 IIL Bonds, 414 
 
 (a) Form, 414 
 
 (b) On mesne process, 414 
 
 (c) For disclosure on execu- 
 
 tion, 414 
 
 (d) WJien the condition is 
 
 broken, and when not, 415 
 
TABLE OF CONTENTS. 
 
 lix 
 
 (e) Damanes, 416 
 
 IV. False discJfosure, 417 
 
 POST-OFFICE, 417 
 
 POUND-KEEPER, 417 
 
 PORTLAND, CITY OF, 417 
 
 PRACTICE, 418 
 
 I. Appearance, 418 
 
 II. Report and exceptions, 418 
 
 III. Motions and proceedings in 
 
 court before trial, 419 
 
 (a) Motions in abatement, 419 
 
 (b) Generally, 420 
 
 IV. Trial, 421 
 
 (a) Loss and destruction of 
 
 papers, 421 
 
 (b) Deposition, 421 
 
 (c) Examination of witnes- 
 
 ses, 421 
 
 (d) Mode of conducting tri- 
 
 als and arguments, 422 
 
 (e) Issue to be tried, 422 
 
 (f) Agreements of parties, 423 
 
 (g) Ordering a nonsuit, de- 
 
 fault, or other judgment, 423 
 
 (i) Instructions to the jury , 423 
 
 ( j ) Assessment of damages, 428 
 
 (k) Bules of court, 429 
 
 ( 1 ) Before the full court, 430 
 
 (m) Generally, 431 
 
 PRESCRIPTION, 432 
 
 PRESUMPTION, 434 
 
 PRINCIPAL, 434 
 
 PRIVITY, 4.34 
 
 PROBABLE CAUSE, 434 
 
 PROBATE ACCOUNT, 434 
 
 APPEAL FROM DECISION OF 
 
 JUDGE OF PROBATE, 435 
 PROBATE BONDS, 435 
 
 PROBATE COURT, 435 
 
 PROHIBITION, 439 
 
 PROPRIETORS OF LAND AND 
 
 INHAB'TS OF TOWNS, 440 
 PROSTITUTION, 441 
 
 PROVOST MARSHAL, 441 
 
 PUBLIC LAW, 441 
 
 PUBLIC LOTS, 441 
 
 PUIS DARREIN CONTINUANCE. 441 
 
 QUARANTINE, 
 
 442 
 
 RAILROAD, 442 
 
 EEAL ACTION, 449 
 
 I. When and by whom main- 
 tainable, 449 
 II. Pleadings by the plaintiff, 451 
 HI. Pleadings by the defendant, 451 
 IV. Evidence, 452 
 
 (a) On the part of the plain- 
 
 tiff, 452 
 
 (b) On the part of the de- 
 
 fendant, 453 
 
 V. Judgment, 454 
 
 KEAL ESTATE, SALE OF 454 
 
 RECEIVER OF STOLEN GOODS, 455 
 
 RECEIVER, 455 
 
 RECOGNIZANCE, 455 
 
 I. In criminal cases, 455 
 
 n. On an appeal in civil cases, 456 
 
 III. Actions upon recogniz- 
 ances, 456 
 RECORD, 457 
 REFORM SCHOOL, 457 
 REGISTER AND REGISTRY OF 
 
 DEEDS, 458 
 
 REGISTRATION, 458 
 
 RELEASE, 458 
 
 REMAINDER, 459 
 
 RENT, 459 
 
 RENTS AND PROFITS, 459 
 
 REPLEVIN, 460 
 
 I. By and against vrhom re- 
 
 plevin may be maintained, 460 
 
 II. Bond, 461 
 
 III. Judgment for return, 462 
 
 IV. Evidence and practice, 463 
 REPLEVIN OP A PERSON, 463 
 RESCISSION, 464 
 RESERVATION, 464 
 RESERVED LANDS, 484 
 REVERSION, 464 
 REVIEW, 464 
 REWARD, 467 
 REVISED STATUTES, 467 
 RIPARIAN RIGHTS, 467 
 ROCKLAND W. P. CO., 468 
 RULES OF COURT, 469 
 
 SALE, 470 
 
 I. Delivery, 470 
 
 II. Construction, 470 
 
 (a) Upon condition, 470 
 
 (b) Validity of sale and lia- 
 
 bility of parties, 471 
 
 (c) Warranty, 472 
 
 III. When voidable, 472 
 
 (a) By vendor, 472 
 
 (b) By vendee, 472 
 
 IV. Sale under legal process, 473 
 V. Evidence, 473 
 
 SAVINGS BANKS, 473 
 SCHOOL AGENT, 474 
 SCHOOL DISTRICT, 474 
 SCIRE FACIAS, 476 
 SCRIP, 477 
 SEAL AND SEALED INSTRU- 
 MENTS, 477 
 SEA-WEED, 478 
 SEISIN AND DISSEISIN, 478 
 I. What is a good seisin, 478 
 
 II. Disseisin, 478 
 
 (a) What is disseisin, 479 
 
 (b) Bights of disseisor or dis- 480 
 
 selsee, 480 
 
 (c) ^ect of disseisin, 480 
 SET-OFF. 480 
 
 I. What claims may be set off, 
 
 and when, 480 
 II. How and when to be pre- 
 sented and allowed, 481 
 III. Set-off of judgments and 
 
 execution, 481 
 
 SHERIFF, 482 
 
 SHIPPING, 482 
 
 1. Title, 482 
 
 II. Master and seamen, 484 
 
Ix 
 
 TABLE or CONTENTS. 
 
 (a) Duty and authority of 
 
 the master as agent, 484 
 
 (b) Wages of master and 
 
 seamen, 485 
 
 (c) In other respects, 425 
 III. Eights and liabilities of 
 
 owners, 485 
 
 (a) For supplies and repairs, 485 
 
 (b) In other respects, and in 
 
 general, 486 
 
 IT. Bills of lading, 487 
 
 V. Freight and charter-parties, 487 
 
 VI. In other respects, 488 
 
 SLABS, 489 
 
 SOLDIERS' AID, 489 
 
 SOUTH KEK. AG. SOCIETY, 490 
 
 STAMP, KEV. 490 
 
 STATE, 491 
 
 STATE LANDS, 491 
 
 STATE PRISON, 491 
 
 STATE TREASURER, 491 
 
 STATUTES, 492 
 
 I. Construction, 492 
 
 II. Repeal and revivor, 495 
 
 III. Generally, 496 
 
 STOCKHOLDER, 596 
 
 SUBMISSION, 496 
 
 SUBROGATION, 496 
 
 SUCCESSION OP PROPERTY, 406 
 
 SUNDAY, 497 
 
 SUPERCARGO, 497 
 
 SUPERIOR COURT, 497 
 
 SUPREME JUDICIAL COURT, 497 
 
 SURETY AND PRINCIPAL, 498 
 
 I. Liability of surety, 498 
 
 II. When discharged, 499 
 
 III. Remedies, 500 
 
 SURVIVING PARTNER, 500 
 
 SWINE, 500 
 
 TAN AND TANKER, 501 
 
 TAX, 501 
 
 I. Assessment, 501 
 
 (a) Upon what assessment 
 
 may be made, 501 
 
 (b) Where and to whom 
 property is to be as- 
 sessed, 501 
 
 (c) Making assessments, 503 
 II. Abatement, 504 
 
 III. Sales of personal and real 
 
 estate for taxes, 504 
 
 IV. Remedy for illegal assess- 
 
 ment, 505 
 V. Redemption and forfeiture, 505 
 
 TAX, REVENUE, 505 
 
 TENANTS IN COMMON, 506 
 
 TENANT AT WILL, 506 
 
 TENDER, 506 
 
 TIMBER, 506 
 
 TIME, 506 
 
 TITLE TO PERSONAL AND 
 
 REAL ESTATE, 507 
 
 I. Personal estate, 507 
 
 II. Real estate, 508 
 
 TOLL-BRIDGE, 509 
 
 TOWN, 509 
 
 I. Powers and liabilities, 509 
 
 11. Meetings, 511 
 
 ( a) Warrant and return, and 
 
 meetings, 511 
 
 (b) Votes, 511 
 
 III. Town officers, 512 
 
 (a) Election and qualifica- 
 
 tion, 512 
 
 (b) Powers and duties, 512 
 
 IV. Division of towns, 513 
 V. Town lines, 513 
 
 TREES, 514 
 
 TRESPASS, . 514 
 
 I. When the action will lie, 514 
 
 (a) For injuries to real es- 
 
 tate, 514 
 
 (b) For injuries to personal 
 
 estate,_ 516 
 
 (o) For injuries under pi'o- 
 
 cess of law, 517 
 
 (d) Personal injuries, 517 
 
 II. Pleading and practice, 517 
 
 III. Evidence, 518 
 
 TRIAL BY JURY, 519 
 
 TROVER, 519 
 
 I. When it lies, 519 
 
 II. Conversion, 520 
 
 III. Pleading, practice, and evi- 
 dence, 522 
 TRUANT, HABITUAL, 523 
 TRUSTEE PROCESS, 523 
 1. Process, 523 
 
 (a) TVIien maintainable, 523 
 
 (b) Where, and against 
 
 whom, 524 
 
 II. Disclosure, 524 
 
 III. When the trustee will be 
 
 charged, 524 
 
 (a) For specific property in 
 
 his hands, 524 
 
 (h) For indebtedness or oth- 
 er liability, 525 
 
 IV. When discharged, 526 
 V. EflFect, as between principal 
 
 and trustee, 528 
 
 VI. Generally, 528 
 
 VII. Practice, 529 
 
 TRUST, 530 
 
 I. Creation and nature of trust 
 
 estates, 530 
 
 II. Resulting trusts, 532 
 
 III. Appointment of trustees, 533 
 
 IV. Rights and liabilities of trus- 
 
 tees, [533 
 
 V. Eights of the cestui que 
 
 trust, 534 
 
 USE AND OCCUPATION, 
 USURY, 
 
 534 
 
 534 
 
 VENIRE, 535 
 
 VENUE, 535 
 
 VERDICT, 536 
 
 I. When it may be affirmed, 
 
 and what may be sustained, 536 
 
 II. When it may be amended, 536 
 
 III. When it may be set aside, 637 
 
 VOLUNTARY ASSOCIATION, 537 
 
 VOTE, 537 
 
TABLE OF CONTENTS. 
 
 Ixi 
 
 VOTING, ILLEGAL, 
 
 "WAIVER, 
 
 WARDEN, 
 
 WARRANT, 
 
 WARRANTY, 
 
 WASTE, 
 
 WATER POWER, 
 
 WAT, 
 
 537 
 
 537 
 539 
 539 
 540 
 540 
 541 
 541 
 
 I. Generally, and herein of 
 
 navigable waters, 541 
 II. County roads, and high- 
 ways, 543 
 
 (a) Authority to lay out, 543 
 
 (b) Proceedings in laying 
 
 out, 543 
 (o) Appeal, 543 
 (d) Railroads across high- 
 ways, 544 
 
 III. Town or private way, 544 
 
 (a) Proceedings of select- 
 
 men, 544 
 
 (b) Acceptance, 545 
 
 (c) Appeal and proceedings, 545 
 
 IV. Damages for laying out and 
 
 altering, 545 
 
 V. Discontinuance, 546 
 
 VI. Making, 546 
 
 VII. Defects and obstructions, 547 
 
 (a) Damages to persons and 
 
 property, 547 
 
 (b) Indictment, 
 
 (c) - - •■ 
 
 549 
 Obstructimis by individu- 
 als, 549 
 VIII. Ways other than by statute, 549 
 IX. Ways in unincorporated 
 
 places, 550 
 
 X. Surveyor of highways and 
 
 street commissioners, 550 
 
 WHARF, 551 
 
 WIDOW, 551 
 
 WIDOWS' ALLOWANCE, 551 
 
 WILL, 552 
 
 I. Execution and attestation 
 
 of different kinds of wills, 552 
 
 (a) Statute wills, 553 
 
 (b) Nuncupative, 553 
 
 (c) Foreign, 554 
 II. Probate, 554 
 
 ni. Construction, 554 
 
 WITNESS, 556 
 
 I. Competency, 556 
 
 II. Objection to competency, 558 
 
 III. Impeachment, 558 
 
 ■ IV. Confidential communicar 
 
 tions, 558 
 
 V. Expert, 559 
 
 WRIT, 559 
 
 I. Indorsement, 559 
 
 11. Service, 559 
 
DiaEST. 
 
DIGEST. 
 
 ABANDONMENT. 
 
 See Assumpsit, 8. Bbtteements, 4. Execution, 110.- 
 Insueance, 83, 84. Landloed, &c., 32. Paupees, 6. 
 
 ABATEMENT. 
 
 I. -WHAT WILL ABATE A WRIT OE OTHER PROCESS. 
 II. HOW TO TAKE ADVANTAGE OF MATTERS IN ABATEMENT. 
 ni. EOEM OF PLEA. 
 
 « 
 I. WHAT WILL ABATE A WRIT OR OTHER PROCESS. 
 
 (a) Want of jttbisdictiob:. 
 
 (h) Nosr-JOrfTDEE. 
 
 (0) Pendency of anothbe action. 
 
 (a) Want of Jurisdiction. 
 
 1. A ■wrong venue must be pleaded in abatement, or taken advantage 
 of by motion when it is apparent on the face of the record. Badger 
 V. Towle, XLvm. 20. Demuth v. Cutler, l. 298. Mansur v. CoMn, liv. 
 314. 
 
 See Abatement, 10. 
 EXECUTOE, &c., 20. 
 
 (b) JVbn-joinder. 
 
 2. If one tenant in common only be sued in tort for anything respect- 
 ing the land held in common, he may plead the tenancy in common in 
 abatement. Southard v. Hill, xliv. 92. 
 
 1 
 
I ABATEMENT. 
 
 3. In trespass by a tenant in common of the locus in quo, under R. S. 
 of 1857, c. 95, §§ 14 & 15, the defendant can take advantage of the non- 
 joinder of the plaintiff's co-tenants only by plea in abatement; and this 
 objection wiU. not defeat the action, unless the plaintiff knew the names 
 of his co-tenants. Sobhs v. Hatch, xLviii. 55. 
 
 4. If one of several joint-indorsers of a promissory note is sued alone, 
 he can take advantage of the non-joinder only by plea in abatement. 
 
 Williams v. Smith, xlviii. 135. 
 
 See Abatement, 22, 24, 28. 
 
 (c) Pendency of another action. 
 
 5. The pendency of a statute submission of all demands between the 
 parties, duly pleaded in a subsequent suit between them, founded on a 
 cause of action included in the submission, will abate the suit. Fahy v. 
 Brannagan, lvi, 42. 
 
 II. HOW TO TAKE ADVANTAGE OE MATTERS IN ABATEMENT, 
 (a) How MATTEES ITT ABATEMENT MUST BE PLEADED. 
 
 (lb) "When- pleas and motions in abatement mxtst be made and 
 'piled. 
 
 (c) What will be a waiver op matters in abatement. 
 
 (d) What will suppoet a plea in abatement. 
 
 (a) Sow matters in abatement must he pleaded. 
 
 6. Non-tenure must be pleaded in abatement and not in bar. Colburn 
 V. Chover, xliv, 47. Wyman v. Brown, l. 139. 
 
 7. A plea in ibatement of the writ may be both of the writ and dec- 
 laration ; and it must be so where it is intended to plead in abatement 
 only of a part of the writ, and the cause of abatement arises only on 
 some of the counts. Southard v. HiU, xliv. 92. 
 
 8. A motion to dismiss can only be sustained, when the defect is dis- 
 closed by inspection of the record. Badger v. Towle, XLvni. 20. Bil- 
 lings V. Berry, l. 31. 
 
 9. Aliter, with a plea in abatement. Badger v. Towle, XLvni. 20. 
 
 10. Where the plaintiff described himself in his writ as " late of Kit- 
 tery, in the county of York," the defendant, as of a town named in New 
 Hampshire, and an officer of the county of York, certified personal ser- 
 vice upon the defendant, a motion to dismiss for want of jurisdiction wUl 
 not be sustained. Badger v. Towle, XLvm. 20, 
 
 11. If the question presented on a motion to quash an indictment is 
 not reserved for the full court on report, and the motion is overruled by 
 the presiding judge, the defendant must plead the matter in abatement, 
 if he would avail himself of it. State v. Maher, xlix. 569. 
 
 12. In an action by a husband and wife, the objection that the plain- 
 tiffs were not lawfully married, can be taken only by plea in abatement. 
 Winslow V. Gilbreth, xlix. 578. 
 
ABATEMENT. 
 
 13. So with objections to the qualifications of grand-jurors. State v. 
 Carver, xlix. 588, 
 
 14. So with the question of the plaintiff's capacity who sues as ad- 
 ministrator. Brown v. JVburse, lt. 230. 
 
 (b) WTien pleas and motions in abatement must he made and filed. 
 
 15. All pleas and motions in abatement must be made and filed with- 
 in two days after the entry of the action. Stetson t. Corinna, xliv. 29. 
 Mitchell V. U. L. Ins. Co., xlt. 104. Webb v. Goddard, xlvi. 505. 
 First National Bank of Brunswick v. Bime B, JF. & M. Bis. Co., lti. 
 424. 
 
 16. A plea in abatement is seasonable, when filed within two days af- 
 ter the judge appeared and organized the court, the first day on which 
 he so appeared being reckoned as one. First National Bank of Bruns- 
 wick V. Lime B. F. & M. Ins. Co., lti. 424. 
 
 17. Matter in the nature of a disclaimer must be filed within the time 
 allowed for pleas in abatement. Chaplin v. Barker, liii. 275. Colburn 
 V. Grover, xlit. 47. 
 
 See Amendment, 32. 
 
 (c) What will be a waiver of matters in abatement. 
 
 18. When a widow institutes her suit for dower and marries before 
 entry of the action, the objection to the non-joinder of her husband 
 comes too late on scire facias founded on the judgment. Walker t. Gil- 
 m,an, xlv. 28. 
 
 19. Where a transitory action is brought in a county where neither of 
 the parties resides, and the defendant appears but neglects to move or 
 plead in abatement, he is considered as waiving the irregularity. Webb 
 V. Goddard, xlvi. 505. Bemuth v. Cutler, l. 298. 
 
 20. After a corporation has appeared and submitted to the jurisdiction 
 of the court, and judgment has been entered, it cannot object to the 
 defective service of the writ. Sarris v. Som. & Ken. B. B. Co., xLvn. 
 298. 
 
 21. By pleading generally to an indictment, objections to the qualifi- 
 cations of the grand -jurors finding it are waived. State y. Carver, xlix. 
 
 588. 
 
 See Bastaedt, 5. 
 
 (d) Whnt will support a plea in abatement. 
 
 22. In an action for malicious prosecution brought by one alleged to 
 be a married woman, evidence of the admissions of marriage by the 
 plaintiff, of common reputation, long-continued cohabitation, birth of 
 children, claim and recognition to support and correspondence as hus- 
 band and wife are sufiicient to sustain a plea in abatement for the non- 
 joinder of the husband. Laughlin v. Eaton, lit. 156. 
 
4 ACCORD AND SATISFACTION. 
 
 in. I'OEM OF PLEA. 
 
 23. Pleas in abatement are required to.be drawn with the greatest ac- 
 curacy and precision. Southard v. Hill xliv. 92. 
 
 24. A plea in abatement for the non-joinder of tenants in common of 
 a dam, without an averment that the dam is real estate, is bad. South- 
 ard V. Sill, XLIV. 92. 
 
 25. Matters of fact and of record cannot be joined in a plea in abate- 
 ment ; and none but the latter can be presented by a motion. Billings 
 V. Berry, l. 31. 
 
 26. A motion in abatement of a complaint for flowage, alleging " that 
 said complaint was brought before the expiration of one year after the 
 rendition of judgment upon the original complaint," was properly over- 
 ruled. Billings v. Berry, l. 31. 
 
 27. A plea in abatement, to an indictment for polygamy, alleging that 
 " at the time of the finding of the said indictment, the said respondent 
 did not reside, nor was he apprehended in the " county where the in- 
 dictment was found, " but that he then and for a long time before re- 
 sided in B.," in a county other than that in which the indictment was 
 found, and was apprehended at said B., is bad. State v. Sweetsir, liu. 
 438.. 
 
 28. A plea in abatement, alleging the non-joinder of the complainant's 
 co-executors in a bill in equity, brought against a residuary legatee, avow- 
 edly to compel him to make an election under the will, is bad, unless it 
 aver that the persons named as co-exeeutors in the plea have given the 
 bond required by R. S. of 1867, c. 64, § 5. Oilman v. Gilman, liv. 453. 
 
 29. To abate a suit because of the pendency of a statute submission 
 of all demands between the parties embracing the cause of action, the 
 plea must not only set out the name of the referee, but allege his accep- 
 tance, and conclude with "praying judgment of the writ." Fahy v. 
 Brannagan, lvi. 42. 
 
 See Amendment, 29, 30. 
 
 ACCESSION. 
 
 See Estoppel, 12. Replevin, 11. 
 
 ACCORD AISTD SATISFACTIOIsr. 
 
 1. A plea of accord can be sustained only by proving an accord not 
 executory, but which ought to be and has been executed before the com- 
 mencement of the action. Gushing v. 'Wyman, xliv. 121. 
 . 2. A payment must be received as well as made, in satisfaction of the 
 debt, to show accord and satisfaction. Gushing v. Wyman, xliv. 121. 
 
ACCOUNT MUTUAL. O 
 
 3. A.'s action against B. was defaulted and continued for judgment. 
 After default and before judgment, A. agreed to accept an execution 
 held by B. against C, in full payment, whicH was not carried out by A, 
 Hdd, (1) It was not a consummated payment, nor accordance and satis- 
 faction ; and (2) That the execution against C, though in the hands of 
 A., by virtue of the agreement, was still the property of B. Mansur 
 V. Keaton, xlti. 346. 
 
 4. The settlement or discharge of a demand or claim by payment of 
 a sum less than the 'whole amount due, is binding under R. S. of 1857, 
 c. 82, § 44, unless vitiated by the fraud of the debtor. jBisbee v. Ham, 
 XLVii. 548. 
 
 5. An agreement or accord which is to operate as a satisfaction of an 
 existing liability, must, before it can have that effect, be fully executed. 
 Bragg v. Pierce, Lin. 65. 
 
 6. It is merely executory, so long as, by its terms, something remains 
 to be done in the future. Bragg v. Pierce, mi. 65. 
 
 7. Where a controversy has been adjusted by the parties to it, by an 
 offset, mutually agreed upon, of the claims which each sets up against 
 the other, and there is a reciprocal agreement not to sue on either side, 
 courts should give effect to the agreement, unless the case shows bad 
 faith in the assertion of any claim at all on the part of one of the parties, 
 or that the claim is so destitute of foundation as to savor of imposition 
 and extortion. Boyle v. BonneUy, lvi. 26. 
 
 See CoKTEACT, 17. 
 Peactice, 86. 
 
 ACCOUNT MUTUAL. 
 
 1. To create the element of mutuality in accounts, each party should 
 keep a book and have charges upon it against the other. Byer v. Walk- 
 er, LI. 104. 
 
 2. Hence, items of credits, which were merely partial payments of 
 the plaintiff's account, where the defendant kept no account and had no 
 ■charges against the plaintiff, do not constitute the accounts " mutual " 
 within the meaning of R. S. of 1857, c. 81, § 99. Byer v. Walker, li. 
 104. (But see Pub. Laws of 1867, c. 117.) 
 
 ACCOUNT. 
 
 See AcTi03sr, 17. Costs, 25. Equity, 78, 79. 
 
ACTIONS AND REMEDIES IN GENERAL. 
 
 ACTIONS AND REMEDIES IN GENERAL. 
 
 I. BY AND AGAINST WHOM, AND FOE WHAT, AN ACTION WILL 
 
 LIB. 
 n. COMMENCEMENT OP ACTIONS. 
 
 L BY AND AGAINST WHOM, AND FOE WHAT, AN ACTION WILL 
 LIB. 
 
 1. Where a stock of goods is sold for a separate and distinct price for 
 each article, the sale of some of which is illegal, an action will lie for the 
 value of the remainder of the goods. Boydy. Eaton, xxiv. 51. 
 
 . 2. Whatever is done in contravention of a statute, cannot be made 
 the subject-matter of an action, even after the repeal of the statute. 
 Hathaway v. Moran, xliv. 67. 
 
 3. An action does not lie for damage done by one domestic animal to 
 another, if the former is rightfully in the place where the damage is 
 done, unless the owner knew his animal was vicious. Decker v. G-am- 
 mon, XLIV. 322. 
 
 4. Aliter, when the animal is wrongfully in the place where it does the 
 damage. Decker v. Gammon, xliv. 322. 
 
 5. A physician cannot recover of a town of which he was not a resi- 
 dent, for medical services rendered to its inhabitants sick with small-pox, 
 unless the proper officers of the town had expressly contracted with him 
 in behalf of the town. Child v. Dhillips, xlv. iOS. Doothby v. Troy,' 
 XLvm. 560. 
 
 6. A grantor conveyed a piece of land reserving a specified strip at 
 one end for a road, if the town (in which the land lay) should lay out 
 and accept a road over it ; otherwise reserving the same for a private 
 way. ITdd, (1) That if the grantor obstruct the right of way, he will be 
 liable in case for the actual damages to the grantor or his assigns ; and 
 (2) If no actual damages be proved, he will be entitled to nominal dam- 
 ages. Tuttle V. Walker, xlvi. 280. 
 
 7. The town committing an insane pauper to the hospital, cannot re- 
 cover the expenses incurred, of the town in whi»h the settlement is, 
 until the same have been paid and the proper notice given. Bangor v. 
 Fairfield, xlvi. 558. 
 
 8. The mortagee of personal property may maintain an action for 
 damages to his reversionary interest, although he has not a right to im- 
 mediate possession. Googins v. Gilmore, xlvu. 9. 
 
 9. An agent paid his principal's money in the course of his agency 
 business, to a creditor of his principal, and subsequently, both agent and 
 creditor settled their accounts with the principal, the creditor not allow- 
 ing the payment and the agent refunding it. JSeld, that the principal 
 may recover the money of the creditor in his own name. Giddings v. 
 Dudley, xlvii. 51. 
 
 10. Where a mortgagee, after condition broken, entered upon the 
 
ACTIONS AND REMEDIES IN GENERAL. 7 
 
 mortgaged premises, declaring his purpose to be to foreclose, but neg- 
 lected to make and record the statute certificate, he cannot maintain an 
 action against one acting under the mortgagee, for hay cut upon the 
 premises, claiming that his entry was sufficient to entitle him to the rents 
 and profits. Potter v. Small, xlth. 293. 
 
 11. An action at law may be brought by one party to a written con- 
 tract for the building of a vessel, against the other party to it, for a 
 breach thereof, although the plaintiff and defendant are to be part-own- 
 ers or tenants in common. Ripley v. Crooker, xxvii. 370. 
 
 12. An action will not lie against a justice of the peace for issuing a 
 mittimus, by force of which the plaintiff was imprisoned, which was to 
 make effectual a judgment honestly rendered within the scope of his 
 jurisdiction as a court, in a judicial proceeding. Downing v. Herrick, 
 XLvii. 462. 
 
 13. A. made a fraudulent mortgage of goods to B., which was duly 
 recorded. A.'s creditors attached the goods, a portion of which were 
 duly sold at auction by consent of A. and the attaching creditors ; but 
 a portion were sold at private sale and no account of sales kept. Held, 
 that B. may maintain an action against the officer for the goods thus ir- 
 regularly sold. Andrews v. Marshall, xLvm. 26. 
 
 14. One having money belonging to another and paying it out in ac- 
 cordance with the owner's directions, is to be protected from a suit by 
 the owner. Jordan v. McKenney, XLvin. 104. 
 
 15. Under R. S. of 1857, c. 82, § 101, a plaintiff, who has had costs 
 awarded against him in a former action, cannot maintain a second suit 
 upon the " same cause of action " until such costs are paid, although a 
 new and additional cause of action is embraced in the second suit. 
 Morse v. Mayherry, xxvm. 161. 
 
 16. An action will not lie for the price of property sold in part-pay- 
 ment of the plaintiff's notes then held by the vender, notwithstanding 
 he subsequently transferred such of the notes as were overdue, and to 
 which the law, in the absence of any appropriation by the parties, would 
 appropriate the price of the property sold. Lambert v. Winslow, xlvtei. 
 196. 
 
 17. Where a negotiable promissory note was given in settlement of 
 an account, and a judgment subsequently obtained on the account and 
 discharged by one duly authorized, for any valuable consideration, no 
 action can be maintained by the original creditor either upon the note 
 or judgment, ^ogg v. /Sanborn, xLvm. 432. 
 
 18. In order to enforce a liability imposed wholly by statute, the plain- 
 tiff must show that the statute has been strictly complied with on his 
 part. Dewey's Island H. H. Co. v. Bolton, xlthi. 451. 
 
 19. No action will lie against a town, by a non-resident physician, for 
 professional services rendered to a destitute person having a legal settle- 
 ment in such town, unless upon an agreement with a majority of the 
 ovsrseers, or the town ratified an engagement made by less than a ma- 
 jority. Boothby v. Troy, xLvm. 560. 
 
 20. The prevention of the doing of an unauthorized and unlawful 
 act does not constitute a good cause of action on the part of the incipi- 
 ent wrongdoer who is interfered with in the commission of his intended 
 offence. Bangor 0. & M. B. B. Co. T. Smith, xlix. 9. 
 
8 ACTIONS AND EEMEDIES IN GENERAL. 
 
 21. An action lies as well against one who orders a -wrongful act, as 
 against him who does it. Woodhridge v. Conner, xlix. 353. 
 
 22. An agreement by an officer not to move property seized by him 
 on an execution, and intrusted to the custody of another, is a sufficient 
 consideration for an agreement by the latter to keep the property safely, 
 and have it forthcoming at the sale on execution ; and for breach of such 
 agreement, the officer may maintain an action. Ames v. Taylm; xlix. 
 381. 
 
 23. In an assignment for the benefit of creditors, one assigner having 
 collected money for the estate, in compliance with a previous agi-eement 
 with his co-assignee, consigned property to a third person, upon the con- 
 dition that the latter should pay the co-assigner the sum collected, and 
 such person thereupon promised the co-assigner to pay it to him. Held, 
 that the co-assigner may maintain an action on such promise, without 
 procuring a discharge of the other assigner from liability under the as- 
 signment ; and the fact that the defendant is surety on the plaintiff's 
 bond as assigner, will be no defense. Ferkins v. Hitchcock, xlix. 468. 
 
 24. Although a tanner and those under whom he claims, have thrown 
 tan into a stream more than twenty years, yet if the owner of the land 
 below has not been thereby injured until within the last six years, the 
 land-owner may maintain an action for damages. Crosby v. Hessy, 
 XLIX. 539. 
 
 25. Although the land below has only been injured by the deposit of 
 tan, since the removal of a dam above and the formation of one below, 
 without the agency of either of the parties, yet it seems, the tanner is 
 responsible for the damages occasioned to the land by the deposit after 
 those changes took place. Crosby v. Bessy, xlix. 539. 
 
 26. When A. had agreed in writing to pay the debt of another, and 
 B. in a postscript, subscribed by him, added, " I will be accountable with 
 A. according to the above writing," an action lies against both as joint- 
 contractors. Castner v. Slater, l. 212. 
 
 27. If an agent neglects his principal's directions to insure a cargo 
 shipped by the latter to the former, and it arrives safely, he cannot main- 
 tain an action against the owner for a premium on insurance, notwith- 
 standing he might have been liable to the owner in case of loss. Storer 
 V. Haton, l. 219. 
 
 28. Where a creditor of one of two join t-mortagers of an unrecorded 
 chattel mortgage, has attached the mortgaged property, the holder of a 
 second mortgage which was recorded after the attachment, cannot main- 
 tain an action against the attaching officer until the attachment is re- 
 leased or dissolved. Rich v. Roberts, l. 395. 
 
 29. When a judgment has been reversed upon a writ of error, the 
 debtor is entitled to the land set off in satisfaction of such judgment; 
 and he may recover the same of him who has purchased it of the cred- 
 itor after the levy and before the reversal, of the judgment without no- 
 tice of any defect therein. Bryant v. Fairfield, li. 149. 
 
 30. If a parol contract for the purchase of real estate is made and ful- 
 filled on the part of the purchaser, and the seller is ready to perform the 
 agreement on his part, no action can be maintained to recover back the 
 purchase-money. Kneeland v. Fuller, li. 518. Plummer v. Bucknam, 
 XV. 105. 
 
ACTIONS AND EEMEDIE3 IN GENERAL. 9 
 
 31. But if the vender refuses to perform the contract on his part, the 
 party performing not being in fault, can recover back all payments made. 
 Kneeland v. Fuller, li. 518. Plummer v. JBucknam, lv. 105. 
 
 32. As a general rule, municipal coi-porations are not liable to a suit, 
 except when the right of action is given by statute. — Mitchell v. Hock- 
 land, xn. 118. 
 
 83. The defendant exchanged horses with the plaintiff who sold the 
 horse received of the defendant to another person, and the last named to 
 still another, and the last vender being sued in replevin for the horse, 
 notified his vender of the pendency and nature of the suit, and a sim- 
 ilar notice was given by each vender to bis respective vender back to 
 the defendant who neglected to defend the suit. Held, that the plain- 
 tiff could recover the amount of the judgment in the replevin suit, to- 
 gether with witness and counsel fees expended in the same ; and that 
 the judgment in replevin was conclusive upon the defendant. Thurston 
 v. /Spratt, LH. 202. 
 
 34. No action lies for the turning of mere surface-water from one's 
 own land upon the land of another. Greeley t. Maine Cen. H. H. Co., 
 Lin. 200. 
 
 35. If the plaintiff allege that the defendant " intending to injure the 
 plaintiff, carried and set fire to the brush in the defendant's close, which 
 . . . being carelessly managed by the defendant, spread and caught 
 the wood in the plaintiff's close," &c. Held, to be an action at common 
 law, and that the allegation of " intent " must be proved beyond reason- 
 able doubt. Paul V. Currier, Lm. 526. 
 
 See Agenct, 28. Drain, 5. 
 
 Attorney & Counsellor, 1. Execution, 3. . 
 
 Bills; &c., 76-83, 121. Fraud, 2, 4, 12, 14, 15, 43. 
 
 . Bond, 13. Guardian, &c., 3, 10. 
 
 Case, 6, T. . Hat, 2. 
 
 Collector, 5, 17, 18. Husband, &c., 2. 
 
 Complaint, 15. Insurance, 118. 
 
 Contract, 28. Married Woman, 13. 
 
 Corporation, 2, 54, Raileoad, 1, 52. 
 
 Devise, &c., 10. Soldiers' Aid, 3, 7, 12. 
 
 n. commencement of actions. 
 
 36. Whether an action should have been brought before a justice of 
 the peace, is to be determined, ordinarily, by the amount of the judg- 
 ment. Lawrence v. Ford, xliv. 427. 
 
 37. After the settlement of a demand for a sum less than the full 
 amount due, before an action can be maintained on the original cause of 
 action on the ground of fraud on the part of the debtor, the creditor 
 must rescind the contract of settlement, and tender to the debtor what- 
 ever sum he had paid. Bisbee v. Ham, xLvn. 543. 
 
 38. An action by a town against a railroad company for expenditures 
 to put in good condition a highway obstructed by the company's rail- 
 road, can be brought only within one year from the time when such ob- 
 struction was caused or created. Veazie v. Pen. JR. H. Co., xlix. 119. 
 
 See Arbitration, 14. 
 corpoeation, 49. 
 Insurance, 121. 
 
10 ADULTEEY. AGENCY. 
 
 ADOPTION AND ACCEPTANCE. 
 
 See Agency, 15. Coepoeation, 53. Damages, 25. Estoppel, 26. 
 
 ADULTERY. 
 
 1. The previous declarations of one. on trial for adultery, that lie had 
 a wife, and that the woman with whom he lived was his wife, are admis- 
 sible as evidence of his marriage. State v. Libbey, xliv. 469. 
 
 2. Where, in an indictment for adultery, the allegation was that the 
 adultery was committed with V. B., and the proof was that it was com- 
 mitted with V. A. B., the instruction that, if the jury were satisfied from 
 the testimony that the particeps criminis was as well known by the 
 name of V. B., as V. A. B., they would be warranted to find that the of- 
 fence, if committed, was committed with V. B., was held correct. /State 
 r. Ziibbey, xliv. 469. 
 
 3. So in such case was the instruction that " if fi-om all the testimony 
 introduced for tha purpose of proving the marriage of the defendant 
 (including his declarations mentioned in § 1), they were satisfied beyond 
 a reasonable doubt that he was legally married, and that his wife, to 
 whom he was legally married, was living at the time the ofience was al- 
 leged to have been committed, they would be authorized to find the fact 
 of marriage." State v. Jjibiey, xliv. 469. 
 
 See Indictment, 25. 
 
 ADVANCEMENT. 
 See Agency, 25. Bills, &c., 156. Evidence, 73. Giet, 1. Income. 
 
 AGENCY. 
 
 I. APPOINTMENT AND EEVOCATION, AND HOW PROVED. 
 
 11. EXTENT OP ATJTHOEITY, AND DELEGATION OF POWER, 
 
 m. EATIPICATION AND ADOPTION. 
 
 IV. LIABILITY OE PKINOIPAL, FOR ACTS OF AGENTS. 
 
 V. LIABILITY OF AGENTS. 
 
 VI. RIGHTS AND REMEDIES OF PRINCIPALS AND AGENTS. 
 
 Vn. FACTORS. 
 
 VIIL PLEADINGS AND EVIDENCE. 
 
 L APPOINTMENT AND REVOCATION, AND HOW PROVED. 
 1. The authority of an agent to act for, and bind his principal, will be 
 
AGENCY. 
 
 11 
 
 implied from the accustomed performance by the agent of acts of the 
 same general character for the principal, with his knowledge and assent. 
 Hazeltine v. Miller, xliv. 177. 
 
 2. When one defends a suit upon a note to which his name was afBxed 
 by a third person, if it appear that the defendant had authorized such per- 
 son to make notes, affix his name and put them into general circulation 
 as bearing his genuine signature, and had not, at the date of the note in 
 suit, revoked such authority, and the agent, acting under such authority, 
 executed the note in suit and passed it to the plaintiff, as bearing the 
 genuine signature of the defendant, and it was received by the plaintiff 
 as such, the defendant will be bound thereby. Forsyth v. Bay, xlvi. 
 176. 
 
 3. Such authority is express, when directly conferred on the agent, 
 either verbally or in writing ; and implied, when it arises from facts and 
 circumstances, admitted or proved, which cannot be explained upon any 
 other hypothesis than that of authority, and from which the existence of 
 authority may reasonably be inferred. Forsyth v. Day, xlti. 176. 
 
 4. Other notes, previously executed in the same manner and shown or 
 described to the defendant before the date of the note in suit and ac- 
 knowledged by him to be valid, are admissible in evidence to prove 
 authority on the part of the agent, and the degree of confidence reposed 
 in him by the defendant. Forsyth v. Day, xlti. 176. 
 
 5. And pi-oof that the plaintiff took the note in suit as having thereon 
 the signature of the defendant, and believing it to be genuine, will not 
 render such notes inadmissible. Forsyth v. Day, xlti. 176. 
 
 n. EXTENT OF AUTHORITY, AND DELEGATION OE POWEE. 
 
 6. A general authority to an agent to collect debts and to pay and re- 
 ceive money, does not authorize him to bind his principal by negotiable 
 instruments ; nor can an agent, having authority to collect money for his 
 principal, arising from the use or proceeds of the sale of his property, 
 bind him by entering into contracts for which money is to be paid out. 
 Hazeltine v. Miller, xlit. 177. 
 
 7. The two interests, which an agent has to sell property, and to be- 
 come the purchaser thereof, are so incompatible, that the law does not 
 allow them to be united in the same person. Parher t. Vose, xlt. 54. 
 
 8. An agent to sell is not necessarily an agent to purchase. Kidder 
 v. EJnox, xLTin. 551. 
 
 9. Where one was constituted an agent for the purchase and sale of 
 goods in the name of the principal, a recital in the power of attorney 
 that the principal " is about to leaTe upon a voyage at sea," does not 
 limit the duration of the agency to the time when the voyage was com- 
 pleted. Forbes v. Wooderson, xlix. 14. 
 
 10. An agent, who is authorized by the owners of a tannery, to act 
 " in all matters and business relating to the tannery," is not thereby 
 authorized to bind his principals as receipters to an officer, for horses, 
 tc, used in the tannery which had been attached as the property of a 
 bird person. Weston t. Alley, xlix. 94. 
 
 11. In a sale of personal property by parol, the title may Test in an 
 
12 AGENCY. 
 
 undisclosed principal for whom the apparent purchaser is negotiating as 
 agent. Tainter v. Lombard, liii. 369. 
 
 12. In such case, the principal may vindicate his title as against the 
 agent, although the seller has no knowledge of the principal's interest. 
 Tainter v. Lombard, Lin. 369. 
 
 13. If a debtor, having funds in the hands of his agent, verbally orders 
 him to pay a creditor, and the agent promises to execute the order, and 
 the creditor accepts and relies upon the agent's promise, the debtor's 
 power to control so much of the funds as is necessary to redeem such 
 promise is gone. Goodwin v. Bowden, liv. 424. 
 
 14. In such case the agent's promise becomes an original undertaking, 
 and the funds in his hands are a suf&cient consideration for his engage- 
 ment. Goodwin v. Bowden, lit. 424. 
 
 in. EATEFICATION AND ADOPTION. 
 
 15. There may be a ratification and an adoption of a forged note, by 
 the person whose act it purports to be, although he has derived no ben- 
 efit therefrom ; and such ratification binds him from the date of the note. 
 Forsyth v. Bay, xlv^. 176. 
 
 16. But the language or acts relied on to establish such ratification, 
 must be such as indicate his intention to be holden to pay the note. 
 Forsyth v. Bay, xlti. 176. 
 
 17. When a principal ratifies the acts of his agent, with a full knowl- 
 edge of such acts, he is bound by them. Forbes v. Wooderson xlix. 14. 
 
 18. The ratification of an unauthorized conveyance by deed must be 
 by an instrument under seal. Heath v. Nutter, l. 378. 
 
 See Assignment, 4. 
 Execution, 97, 
 Fraud, 8. 
 Mortgage,, 37. 
 Town, 10. 
 
 IV. LIABILITY OF PEINCIPAL FOE, ACTS OP AGENTS. 
 
 19. Although a principal is liable for the torts and negligences of his 
 agent which occur in the course of his agency, still, where an agency 
 was limited to the business of keeping in repair and leasing mills and 
 receiving rents therefor, he is not liable for the acts of a lessee of a mill 
 in excavating the bed of the river, thereby causing damage to a neigh- 
 boring mill-owner. Stickney v. Munroe, xliv. 195. 
 
 20. The sale of liquors to the selectmen, under Act of 1854, as agents 
 of the town, was a sale to the town. Kidder v. Ehox, XLvni. 551. 
 
 See Bills, &c., 90. 
 
 V. LIABILITY OP AGENTS. 
 
 21. One undertaking to act as agent of the owner, in insuring a ves- 
 sel, is bound to follow the instructions of his principal, and effect a valid 
 
AGENCY. 
 
 13 
 
 insurance ; thougb he may be excusable as to a doubtful point of law. 
 Sawyer v. MayJiew, li. 398. 
 
 22. If, in such case, the agent does not obtain a valid policy, he is re- 
 sponsible to his principal for the actual damages. Sawyer v. Mayhew, 
 LI. 398. 
 
 28. If the company was in good credit at the time of effecting the in- 
 surance, and subsequently became insolvent, the damages will depend 
 upon the ability of the company at the time the right of action accrues. 
 Sawyer v. Mayhew, li. 398. 
 
 VI. EIGHTS AND EEMBDIES OF PEINCIPALS AND AGENTS. 
 
 24. If the defendant receive the plaintiff's money as from the agent 
 of the plaintiff, both of whom are his debtors, without having reason to 
 believe it was sent by the latter, and appropriate it to the credit of the 
 agent, the plaintiff cannot recover it back. DwiriM v. Sawyer, Lin. 24. 
 
 VII. FACTQES. 
 
 25. If a factor receives goods and makes advances upon them, to be 
 reimbursed from the proceeds when sold, and is then summoned as the 
 trustee of the owner, he is not thereby devested of his right to sell the 
 goods. The creditor is, by the trustee process, only subrogated to the 
 rights of the debtor. White M. Bank v. West, xlvi. 15. White M. 
 Bank v. West, xlvi. 15. Whipple v. West, xlvi. 15. Carleton v. 
 White M. Bank, xlvi. 15. Carleton v. Whipple, xlvi. 15. 
 
 Vin. PLEADINGS AND EVIDENCE. 
 
 26. There must be proof of agency, before the declarations of an 
 agent are admissible; and then only such declarations as are strictly 
 part of the res gestae can be received. Sazeltine v. Miller, xliv. 177. 
 
 27. Where one had given his own note, and affixed thereto the name 
 of the defendant as a joint promiser, who defended on the ground that 
 his name was put thereon without authority, evidence is admissible which 
 tends to show that the defendant, after knowledge of the existence of 
 the note, took from the person who had written his name thereto, secu- 
 rity against general liabilities. Forsyth v. Bay, xlvi. 176. 
 
 28. If an agent purchase a quantity of lumber for his principal, with- 
 out disclosing his agency, taking a bill of sale to himself, 'and paying 
 therefor, and the lumber fall short in quantity on delivery, the principal 
 may recover the excess of payment by an action in his own name. 
 Gushing v.' Bice, xlvi. 303. 
 
 29. And evidence that the purchase was for the principal, is admissi- 
 ble, notwithstanding the agent took the bill of sale to himself, and then 
 gave another bill of sale of the same to his principal, Cushing v. Bice, 
 XLVI. 303. 
 
 30. Evidence is also admissible that the venders warranted the lum- 
 ber, in quantity and quality, though the bill of sale contains no warranty. 
 
 Cushing v. Bice, xlvi. 303. 
 
14 ALIMONY. 
 
 31. If an agent voluntarily intermingles his principal's money with 
 that belonging to himself or another, and, on being sued therefor, de- 
 fends on the ground that the money was stolen from him without fault 
 or negligence on his part, the onus jprobandi is on the agent to show 
 that the identical money was stolen which belonged to his principal. 
 Bartlett v. Hamilton, xlvi. 435. 
 
 32. A letter from an agent is not admissible to prove a proposed con- 
 tract made by him with a third person, in behalf of his principal. Sar- 
 gent V. Wording, xlvi. 464. 
 
 33. An agent having paid his principal's money, in the course of his 
 agency business, to a creditor of the principal, and both agent and cred- 
 itor having settled their accounts with the principal, the creditor not 
 allowing, and the agent refunding it. Held, that the principal may re- 
 cover the money of the creditor on a suit in his own name. Giddings 
 V. Dudley, xlvii. 51. 
 
 34. Proof of the declarations of an agent made after his agency has 
 ceased, may, if inconsistent with his present testimony, be admitted to 
 affect his credibility ; but they are not to be regarded as evidence of facts 
 to influence the jury in determining the points at issue in an action of a 
 third party against the principal. Holmes v. Morse, l. 102. 
 
 35. In an action against the mortgagee of a mill and lumber, to re- 
 cover the value of fixtures furnished while the mortgager was running 
 the mill under a power of attorney from the mortgagee, the power of 
 attorney was rightfully admitted in evidence to show a relation between 
 the parties as to the business, although insufficient to prove such an 
 agency as would make the mortgagee responsible for improvements or 
 new machinery. Holmes v. Morse, l. 102. 
 
 See Trustee Peocbss, 79. 
 
 AGREEMENT. 
 
 See Accord and Satisfaction, 5. Action, 19, 22, 26. Assumpsit, 7, 
 
 8, 17. Bills, &c., 171, 172. Contract, 5, 17, 33. Costs, 15. 
 
 Damages, 31. Error, 17. Estoppel, 21. Fence, 4. 
 
 ALIENATION. 
 
 See Insurance, 19, 23, 25, 26. Landlord, &c., 6. 
 
 ALIMONY. 
 
 On a divorce a vinculo, for impotence, alimony cannot be decreed un- 
 der the statutes of this State. Chase v. Chase, lv. 21. 
 
 Alteration. Bills, &c., 115, 120. Conspiracy, 10. 
 
AMENDMENT. 
 
 AMENDMENT. 
 
 I. GENERAL PRINCIPLES. 
 
 n. OF WRITS AND DECLARATIONS, 
 
 in. OF PLEADINGS. 
 
 IV. OF RECORDS, JUDGMENTS, AND EXECUTIONS. 
 
 V. OF OFFICERS' RETURNS. 
 
 VL OF OTHER CASES. 
 
 15 
 
 L GENERAL PRINCIPLES. 
 
 1. Amendments may be allowed at the discretion of the court, when 
 the cause of action can be perceived and rightly understood, although 
 the declaration is inartificially and defectively drawn. State v. JBurn- 
 ham, XLiT. 278. Simpson v. Norton, xlv. 281. Fage v. Danforth, 
 IMS.. 174. Solon V. Perry, liv. 493. 
 
 2. As in scire facias on a recognizance when there is a variance be- 
 tween the recognizance and the declaration. State v. Jiurnham, xliv. 
 278. 
 
 3. And the words " convenient privilege of passing " may be construed 
 to mean convenient way or road, when from the whole declaration, such 
 is manifestly the sense in which they are used. Simpson v. Norton, 
 XLV. 281. 
 
 4. Plaintiffs suing as assignees under the insolvent laws of Massa- 
 chusetts, may be allowed to amend by striking out the words descrip- 
 tive of the character in which they sued. Metcalf v. Yeaton, li. 198. 
 
 5. By R. S. of 1857, c. 82, § 10, no process or proceeding in courts of 
 justice shall be abated, arrested, or reversed, for want of form only, or 
 for circumstantial errors or mistakes which by law are amendable when 
 the person and case can be rightly understood. Page v. Danforth, Lin. 
 174. 
 
 II. OF WRITS AND DECLARATIONS. 
 
 6. In an action brought for the value of a stock of goods, some of 
 which were spirituous liquors, at separate and distinct prices, the plain- 
 tiff may amend by striking out the items of liquors. Poyd v. Eaton, 
 XLIT. 51. 
 
 7. In an action by a husband and wife to recover back extra interest, 
 the plaintiffs will not be allowed to amend by striking out the name of 
 the wife. Roach v. Randall, xlt. 438. 
 
 8. If a mortgagee of personal property sues in trover for the taking 
 of the mortgaged property, he may amend by adding a count in case ; 
 and if no objection be made to the form of action, until after judgment, 
 it will be too late for the defendant to take advantage of the defect. 
 Googins v. Gilmore, XLvn. 9. 
 
 9. An amendment introducing a new cause of action is not allowable. 
 Annis v. CHlmore, xlvh, 152. MiUiken v. Whitehouse, xlix. 527. Coop- 
 er T. WaMron, l. 80. 
 
16 AMENDMENT. 
 
 10. Hence, in an action against an officer for not retaining i)roperty 
 attached, so that it could be sold on execution, an amendment introdu- 
 cing a count for not returning the execution is not allowable. Annis. v. 
 GUmore, xlvii. 152. 
 
 11. So in real actions with an amendment embracing a different piece 
 of land from that described in the declaration. Wyman v. Kilgore. 
 xLvn. 184. 
 
 12. Aliter, if the amendment merely gives a more particular and cer- 
 tain description of the land originally sued for. Wyman v. Kilgore, 
 XLVII. 184. 
 
 13. A declaration containing only a count " for balance of account " 
 with the amount stated, but with no account annexed, may be amended 
 by filing, by leave of court, a bill of particulars for a sum not exceeding 
 the amount mentioned in the declaration. Butler v. MtUeU, xlvii. 492. 
 
 14. In an action against a railroad coi-poration to recover the value of 
 a building destroyed by fire communicated by its locomotive, an amend- 
 ment alleging that the " engine causing the tire was in the use of said 
 company " or of their lessees, may be allowed on payment of costs up to 
 the time when the amendment was ofiered. J'Vye v. A. db St. L. H. M. 
 
 Co., XLVII. 523. 
 
 15. If a railroad corporation bring a special action on the case against 
 a defendant for preventing their constructing a branch track across a 
 public highway, where they were not legally authorized to construct it, 
 and fail to establish their right as set forth in the writ, they will not be 
 allowed to amend, by making a different description of their cause of ac- 
 tion, so that they may recover nominal damages. Bangor, 0. <fb M. B. 
 B. Go. V. Smith, xlix. 9. 
 
 16. In debt by a stockholder against a railroad company, to recover 
 semi-annual dividends on certain shares of preferred stock, a declaration, 
 averring that the plaintiff " is the legal holder of said certificates " was 
 allowed to be amended without terms by distinctly alleging that he "is, 
 and has been, at all times since the date of the certificates, or since the 
 alleged cause of action accrued, the holder of the stock referred to in 
 said certificate. Bates v. And. & K. R. R. Co., xlix. 491. 
 
 17. A declaration against a stockholder for the debt of a corporation, 
 containing only the allegations necessary to bring the case within the 
 provisions of Pub. Laws of 1856, c. 271, cannot be legally amended, 
 against the defendant's objections, so as to bring the case within the 
 Pub. Laws of 1844, c. 109. Mdliken v. Whitehouse, xlix. 527. 
 
 18. In an action for an alleged malicious prosecution of a civil suit by 
 the defendant against the plaintiff "without lawful cause of action, be- 
 ing guided by malice and a desire to oppress, injure, or defraud the plain- 
 tiff, and to deprive him of his good name," the plaintiff cannot amend 
 by charging the defendant with prosecuting a suit against him " to com- 
 pel him illegally to pay the defendant certain sums of money recovered 
 in a judgment against other parties." Cooper v. Walchron, l. 80. 
 
 19. If in the declaration of an action of covenant, the covenants are 
 set out in full, but a breach of one only is alleged, an amendment, add- 
 ing a new count alleging the breach of another covenant, is allowable. 
 
 Wilson V. Widenham, li; 566. 
 
 20. If a writ erroneously contain a direction to arrest the defendant, 
 
AMENDMENT. 
 
 17 
 
 but is served by summons, it may be amended, without terms, at the dis- 
 cretion of the presiding judge. Harvey v. Cutts, li. 604. 
 
 21. The declaration, on a note, making an error in describing the 
 amount for which it was given, and also in one of the initials of the 
 payee's name, may be amended. Cooper v. Bailey, lii. 230. 
 
 22. Where a writ upon a policy of insurance does not set out the stat- 
 ute notice, the presiding judge may, upon terms, allow an amended 
 count, setting out such notice. Leiois v. Mon,. M. F. Ins. Co., Lii. 492. 
 
 23. A petition for partition describing the premises as " a parcel of 
 land situate in B., in the county of S., and bounded as follows, viz. : — 
 Beginning at, a spruce tree in the wall, near Freeman's field, so called, 
 thence north 68° west to N. river as surveyed by T. B., March 15, 1849, 
 thence, beginning at said spruce tree and running southerly by the west 
 line of the Freeman field, as now fenced, to low-water mark, thence east- 
 erly, northerly, and westerly to N". river, and by the river to the B. line," 
 is void for indefiniteness, and may be amended at any time before the 
 interlocutory judgment, in the discretion of the presiding judge, but not 
 afterwards. Swanton v. CrooJcer, lii. 415. 
 
 24. A declaration defective in not alleging a promise by the debtor to 
 the assignee in whose name the action is brought, is amendable. Page 
 V. Danforth, liii. 174. 
 
 25. A defect as to the time and place, at which a writ is made return- 
 able, may be amended on motion, after a general appearance by the de- 
 fendant, and the expiration of the term for filing pleas in abatement. 
 Lawrence v. Chase, lit. 196. 
 
 26. A declaration upon a policy of insurance against fire, alleging that 
 the company " had due notice and proof of the loss according to the 
 conditions of the policy," but containing no allegation that the company 
 had due notice and proof of the loss according to the requirements of 
 Pub. Laws of 1861, c. 34, § 5, is amendable. Conviay F. Ins. Co. v. 
 Sewall, LIT. 352. 
 
 27. Courts are liberal in allowing amendments to declarations when 
 the "person and case can be rightly understood." Solon v. Perry, lit. 
 493. 
 
 28. A count in case, under c. 136 of Pub. Laws of 1862, alleging sub- 
 stantially that, prior to a day named, the defendant had, at various times 
 loaned to the plaintifi" large sums of money, amounting to $3100, and, 
 on said day named, he did take and receive from the plaintiff $2500, as 
 usurious interest, may be amended by setting forth specifically the sev- 
 eral sums loaned, with their respective dates, and the several sums received 
 as usury upon each loan, if the aggregate amount of usurious interest 
 does not exceed that in the original count. Holmes v. Gerry, lt. 299. 
 
 See Attachment, 42. 
 Bank, 8. 
 Feaud, 6. 
 
 III. OF PLEADIKGS. 
 
 29. "Whether a defective jurat to a j^lea in abatement may be amend- 
 ed, quaere. Jones v. Eaton, li. 386. 
 
 2 
 
18 AMENDMENT. 
 
 30. After demurrer thereto, a plea in abatement cannot be amended. 
 Srown V. Nourse, it. 230. 
 
 31. The defect of misjoinder of counts may be cured by motion to 
 amend. Fernald v. Garvin, lv. 414. 
 
 IV. OP BECOEDS, JUDGMENTS, AND EXECUTIONS. 
 
 32. When a writ is erroneously entered upon the docket in the name 
 cS the plaintiff in intei-est, and is answered to, the court may, at a sub- 
 sequent term, under R. S. of 1857, c. 82, § 10, allow the docket entry to 
 be corrected conformably with the writ, upon such conditions as will 
 save the defendant the riglTt to file any plea or motion required to be 
 filed at the first term. Smith v. Wood, xltiii. 252. 
 
 33. An officer, while in ofiice, may amend his records according to the 
 facts, provided the rights of third persons are not thereby prejudiced. 
 Jay V. Carthage, xltiii. 358. State v. Clough, xlix. 578. Scaniman 
 T. Huff, LI. 194. State t. Young, lvi. 219. Glidden v. Philbrick, lvi. 
 222. 
 
 34. Although a verdict containing a mistake in the name of one of 
 the defendants, has been affirmed, still it may be amended so as to con- 
 form to the record before the separation of the jury, they being present 
 and affirming the Terdict as amended. JReadfield t. Shaver, l. 86. 
 
 35. The clerk, by order of the presiding judge, may, even after the 
 return day, insert in an execution introduced as evidence in the trial of 
 an action against a receipter for the value of goods attached, the correct 
 day of the month on which the judgment was rendered, and also cor- 
 rect the date of the execution. Thompson v. Smiley, l. 67. 
 
 See Evidence, 87. 
 
 V. OE OFFICEES' EETUENS. 
 
 36. A constable, by leave of the court, may amend his return upon a 
 venire according to the facts. State v. Glough, xlix. 573. 
 
 37. So may a deputy-sheriff amend his return of a levy made under 
 R. S. of 1841, c. 94, § 4, so that it will show that the appraisers were 
 "discreet" as well as "disinterested men," when it can be done in ac- 
 cordance with the truth, and the right of third persons, acquired in good 
 faith, do not intervene. Glidden v. Philbrick, lvi. 222. 
 
 38. When the official return of the person appointed to preside at the 
 view and hearing of a jury summoned to assess damages sustained by a 
 land-owner by the location of a town way, has been filed in the supreme 
 judicial court, it must be regarded as conclusive, and no motion for an 
 amendment thereof will be entertained. Gay v. Gardiner, lit. 477. 
 JByram v. Gardiner, liv. 477. 
 
 See Execution. 
 
 VI. OTHER CASES. 
 
 39. When a report of referees is recommitted, for the specific purpose 
 of having the majority certify that the disagreeing referee acted with 
 them in the trial of the case, but refused to sign the reports, they may 
 
AMERICAN BANK. ANDROSCOGGIN KAILUOAD. 19 
 
 thus amend their report, without the knowledge or presence of their dis- 
 senting associate. Brann v. Yassalbord' , l. 64-. 
 
 40. If it does not affirmatively appear from the justices' certificate_ of 
 discharge of a poor debtor, or from the proofs in the trial of an action 
 on the poor debtor's bond, that the justices were "disinterested," the 
 presiding judge may allow them to amend the certificate. Ecamman v. 
 Huff, LI. 194. 
 
 41. A petition for partition, containing a description of the premises 
 too indefinite to have a judgment upon, may, in the discretion of the 
 court, be amended at any time before the interlocutory judgment, but 
 not afterwards. Swanton v. Croolcer, Lit. 415. 
 
 42. A recognizance, with sureties for his appearance at a certain term 
 of the supreme judicial court, entered into before a police judge by a 
 person accused of an assault with intent to kill, is amendable even after 
 scire facias is commenced upon it. State v. Young, lvl 219. 
 
 43. A mere report of the evidence, made upon a motion to set aside 
 the verdict as being against evidence, may be amended at any time be- 
 fore a final hearing before the full court. Treat v. Union Ins. Co., ltl 
 231." 
 
 AMERICAN BANK. 
 
 1. When the steps mentioned in Pub. Laws of 1865, c. 284, § 2, have 
 been regularly taken, the surrender of the charter is effected, though no 
 notice of it is published as required by § 3. American Bank v. Cooper, 
 Liv. 438. 
 
 2. Chapter 37 of the special laws of 1866 extended the time for the 
 American Bank to close its concerns to January, 1867, and allowed the 
 receivers such time within that period, for the discharge of their duties, 
 as the supreme judicial court should deem necessary. American Bank 
 V. Cooper, LIV. 438. 
 
 3. By the several statutes and the proceedings under them, notwith- 
 standing the surrender of its charter, the legal capacity of the bank to 
 maintain actions for the conversion of its assets within the time specie 
 fied by law, remained unimpaired. American Bank v. Cooper, liv. 438. 
 
 4. The injunction upon the bank and the appointment of receivers did 
 not incapacitate the bank for maintaining actions for the collection of 
 debts due it in its own name, at the instance of the receivers. Ame/ri- 
 can Bank v. Cooper, liv. 438. 
 
 ANDROSCOGGIN RAILROAD.* 
 
 1. Chapters 450 and 475 of the special laws of 1860, authorizing the 
 extension of the Androscoggin railroad from Leeds to Topsham, recog- 
 nized the " original road " and " extension " as separate and distinct roads, 
 for certain purposes. Bath v. Miller, li. 341. 
 
20 APPEAL. 
 
 2. Those statutes authorize the mortgaging of each as having separ- 
 ate and distinct franchises ; but do not authorize a mortgaging of the 
 "whole road as a unit. jBath v. Miller, li. 341. 
 
 3. Property purchased by the earnings of the whole road after its 
 completion, is not included in either of the mortgages authorized by 
 those statutes. Hath v. Miller, li. 341. 
 
 4. By c. 450, § 6, the city of Bath, on neglect of the company to pay 
 the coupons on the scrip issued by the city, was authorized to take pos- 
 session of all the property of the whole company, existing at the time 
 when possession should be taken. J3ath v. Miller, li. 341. 
 
 5. But such taking possession does not vacate an attachment of the 
 property of the company previously made. Sath v. Miller, li. 341. 
 
 6. "Whatever rights were given to the city of Bath by § 11, can be 
 enforced only in the manner therein provided. Bath v. Miller, li. 341. 
 
 7. Its provisions cannot be interposed to sustain replevin by tlie city 
 for wood purchased by the company from the earnings of the whole 
 road, and attached before possession of the road was taken by the city 
 
 'under § 6; nor to prevent judgment for return in such action. Both v. 
 Miller, li. 341. 
 
 _ 8. The lien provided for in § 11, c. 450, took effect at the time the lia- 
 bility was incurred, and could not include property not then owned by 
 the company. Bath v. MiUer, liii. 308. 
 
 9. The statutes authorize the company to mortgage not only all the 
 property then owned by both the new and the old portions of the road, 
 but " all the property of said extension subsequently to be acquired ; " 
 and wood subsequently purchased with the earnings and for the use of 
 the whole road, would not pass by such mortarage. Bath v. Miller, Lin. 
 308. 
 
 10._ Attaching creditors would hold such wood as against any lien of 
 the city of Bath, claimed by a subsequent taking possession under § 6, 
 c. 450. Bath v. Miller, liii. 308. 
 
 See Railkoad, 60, 65. 
 
 APPEAL. 
 
 I. IN WHAT CASES AN APPEAL LIES, 
 n. SECXJBITY TO PEOSEOUTB AN" APPEAL, 
 ni. EFFECT OP AN APPEAL, AND PROCEEDINGS IN THE APPEL- 
 LATE CO"UET. 
 
 For Appeals from Probate Court, see Peobate Couet. 
 
 L IN "WHAT CASES AN APPEAL LIES. 
 
 1. From a decision of the county commissioners of the county of 
 York, adjudging that "they had no jurisdiction under a petition to lay 
 out, withm the city of Biddeford, a new county road from a certain point 
 
APPEAL. 
 
 21 
 
 in Lyman, thence throngli Dayton to Chestnut street in said city," an 
 appeal lies under R. S. of 1857, c. 18, § 34. Sanson, Appellant, li. 193. 
 
 2. An appeal from the decision of county commissioners laying out a 
 highway can only be taken after the proceedings are recorded at the 
 second regular term after the hearing and before the next term of the 
 supreme judicial court in the county in which the road is located. Mus- 
 sell V. Co. Commr's of Franklin Co., li. 384. 
 
 3. Hence, where a return of the laying out of a highway was made at 
 the Dec. term, 1860 ; the case continued to the next (April, 1861) term, 
 when the proceedings were recorded ; and an appeal taken to the term 
 of the supreme judicial court, held next after April, 1861, Held, the 
 appeal was seasonably taken. Russell v. Go. Commr's of FranJcUn Co., 
 LL 384. 
 
 4. If a town refuse to accept a town or private way laid out by the 
 selectmen on petition of the inhabitants thereof, from whatever place in 
 the town it may lead, the aggrieved party may petition tjje county com- 
 missioners to lay out and establish the same. Orrington v. Co. Commr's 
 of Pen. Co., LI. 570. 
 
 II. SEOUEITY TO PEOSBCTJTB AN APPEAL. 
 
 5. The original recognizance taken before a magistrate on an appeal 
 from his judgment, must be returned to the appellate court. Stetson v. 
 Corinna, xliv. 29. 
 
 6. Where no recognizance was returned when the appeal was entered, 
 it was received and filed by leave of court, after a motion to dismiss 
 for want of a recognizance. Stetson v. Corinna, xliv. 29. 
 
 7. A recognizance (under R. S. of 1841), conditioned " to pay all in- 
 tervening damages and costs," entered into to prosecute an appeal from 
 a justice of the peace, is unauthorized and void, and furnishes no securi- 
 ty to the adverse party for costs ; and this court will, on motion, dismiss 
 the appeal. Jordan v. McKenney, xlt. 306. 
 
 8. In an appeal from a judgment of a justice of the peace, the appel- 
 lant should recognize to prosecute, even if the opposite party waive his 
 right to sureties. Bennett v. Green, xlvi. 499. 
 
 ni. EFFECT OF AN APPEAL, AND PROCEEDINGS IN THE AP- 
 PELLATE COURT. 
 
 • 9. In an appeal from a judgment of a justice of the peace, a copy of 
 a recognizance should not be returned to the appellate court, and it can- 
 not be entered of record ; neither is a copy admissible to contradict the 
 original, or show it defective. Stetson v. Corinna, xliv. 29. 
 
 10. A valid appeal vacates the judgment appealed from. AtJcins v. 
 Wyman, xlv. 399. Tarbox v. Fisher, l. 236. Hunter v. Cole, xlix. 
 556. 
 
 11. The judgment of an appellate court will be conclusive until re- 
 versed, although the appeal was improperly taken and prosecuted. At- 
 kins V. Wyman, xlv. 399. 
 
22 APPKENTICE AND APPKENTICESHIP. AKBITEATION. 
 
 APPKENTICE AND APPRENTICESHIP. 
 
 1. An indenture, providing that, in consideration of certain services 
 of the apprentice, "to be paid to him or his mother, the apprentice is to 
 board himself," is a sufficient " security to the sole use of the minor," 
 within the R. S. of 1857, c. 62, § 5. Doane y. Covel, lvi. 527. 
 
 2. A contract of apprenticeship, not conformable to the statute, is void- 
 able by the apprentice. Doane v. Covel, lvi. 527. 
 
 3. In an action under R. S., c. 24, § 18, for "enticing an apprenticeto 
 leave his master," the defendant cannot take advantage of a voidable in- 
 denture which has never been avoided. Doane v. Covel, lvi. 527. 
 
 APPROPRIATION OF PAYMENT. 
 
 See Patmbnt. 
 
 AQUATIC RIGHTS. 
 See Mill. Wat. 
 
 ARBITRATION. 
 
 I. STJBMISSIOJf. 
 
 U. AUTHOEITY AND DUTY OF ARBITEATOES. 
 
 ni. AWAED. 
 
 IV. EFFECT OF AWAED, AND HOW ENFOECBD OE AVOIDED. 
 
 I. SUBMISSION. 
 
 1. The declaration in a writ of trespass, annexed to a statute submis- 
 sion and thereby made a part of it, is deemed a sufficient specification of 
 the claim submitted. Wood v. Solden, xlv. 374. 
 
 2. And the name of the plaintiff's attorney written on the back of tbte 
 writ is a sufficient signing of the claim, although the words "from the 
 office of " precede the attorney's name. Woody. Solden, xlt. 374. 
 
 3. By R. S. of 1857, c. 140, § 20, the warden of the State prison is 
 authorized to submit to referees, approved by the inspectors, any claim 
 on account of the State prison respecting which a controversy has arisen. 
 Allen V. Tinker, m. 278. 
 
 4. The resolve of Feb. 20, 1860, c. 316, does not take from the warden 
 the power to refer the claim therein mentioned. Allen v. Tinker, lii. 
 
 278. 
 
ARBITRATION. 
 
 23 
 
 5. Under R. S. of 1857, c. 61, § 1, a married woman has power to sub- 
 mit to arbitration a question of damages for the flowage of her separate 
 lands, and to covenant to abide the award. Duren v. Oetchell, lv. 241. 
 
 6. A submission of "all claims and demands of every name and nature 
 between the parties, embracing all questions as to damages for flowing 
 lands, giving said referees power to fix and award a sum in full for said 
 flowage, instead of the yearly damages established by the commission- 
 ers, and all claims, matters, and difficulties between them," cannot be con- 
 strued as a submission of prospective damages only. Duren v. Getchelli 
 Lv. 241. 
 
 See Abatement, 5, 29. 
 
 II. AUTHORITY AND DUTY OP AEBITEATOES. 
 
 7. A claim for the specific performance of a contract for the purchase 
 of real estate, is not within the jurisdiction of referees acting under R. 
 S. of 1857, c. 108, although formally submitted by both parties. Butler 
 V. Mace, xlvii. 423. 
 
 8. Where the value of a tenant's betterments was to be determined by 
 a referee, and he considered and deducted therefrom an account which 
 the demandant claimed was due to himself from the tenant, such deduc- 
 tion was erroneous, the account not being a matter embraced in the 
 submission. JBlach v. Mickey, xlviii. 545. 
 
 9. Where report of referees is recommitted for the specific pui-pose of 
 having majority certify that the disagreeing referee acted in the trial, but 
 refused to sign the report, they may thus amend without the knowledge 
 or presence of their dissenting associate. JBrann v. Vassalboro' , l. 64. 
 
 10. Even if the statute provided that referees might certify a report 
 of evidence to the court, a report certified by one only would be insuffi- 
 cient. Brann v. Vassalboro', l. 56. 
 
 11. When parties submit a matter in controvery to arbitrators, although 
 in terms somewhat vague and indefinite ; the latter have power to deter- 
 mine both the validity and the amount of the claim in dispute, unless 
 restricted by the terms of the submission. Colcord v. Fletcher, l. 398. 
 
 III. AWAKD. 
 
 12. An award executed in duplicate and delivered by the referees to 
 each of the parties thereto, is thereby published. Plummer v. MorriU, 
 XLvm. 184. 
 
 13. When an award is made for the payment of money uncondition- 
 ally, the party becomes liable upon publication of the award without any 
 demand. Plummer v. Morrill, xlviii. 184. Duren v. Getchell, lt. 
 241. 
 
 14. And a suit may be commenced upon the bond given to secure per- 
 formance of the award, at any time after publication. Plummer v. Mor- 
 rill, XLVIII. 184. 
 
 15. An award is in the nature of a judgment, and, to be valid, it must 
 ascertain and make a final disposition of the matters submitted, so that 
 
24 AEBITRATION. 
 
 it shall not be the cause in itself of a new controversy. Colcord v. 
 Fletcher, l. 398. Wymaoi v. Hammond, lt. 534. 
 
 16. Thus where, in case of a claim by one part-owner of a vessel 
 against another for insurance collected, the award was, that " there is due 
 to the former the amount collected on policy of insurance held by the 
 latter, for the former's sixteenth part of barque S.," it was held invalid 
 for not determining that the person against whom the award was made 
 had received any money on the policy, nor, if any, how much. Colcord 
 y, Fletcher, l. 398. 
 
 17. "Where an action is referred by rule of court, without any condi- 
 tion or limitation, the authority of the court is transferred to the referees, 
 and they are made the judges of the law and the fact ; and if there be 
 no suggestion of improper motives, on their part, their doings will not 
 be inquired into by the court. Sail v. Decker, li. 31. 
 
 18. An award may be good in part and bad in part, and, if separable, 
 the good will be affirmed. Day v. Hooper, li. 178. 
 
 19. Thus where parties by an agreement under seal (not in the statute 
 form) submitted a controverted matter to arbitrators, who, in addition 
 to damages, awarded costs which were not authorized by the agreement, 
 the award was sustained as to the damages, and no further. Day v. 
 Hooper, li. 178. 
 
 20. Where a deed of land was to be given when the arbitrators should 
 report the amount to be paid therefor, if the deed conform to the 
 terms of the agreement, it will be sufficient ; although the description in 
 the deed may not define with certainty the boundaries of the land con- 
 veyed. Day V. Hooper, li. 178. 
 
 21. A valid submission and award in writing, duly published, is suffi- 
 cient to bar an action upon the original claim submitted. Duren v. 
 Getchell, lv. 241. 
 
 22. It is unnecessary to a?er a tender of performance, unless the award 
 is made conditional upon the performance of certain acts by the party 
 claiming the benefit of it. Duren v. Getchell, lv. 241. 
 
 23. Whether an award is void by reason of fraud in the party, or cor- 
 ruption, gross' partiality, or prejudice on the part of the arbitrators, is not 
 a question of law to be determined upon a demurrer to a plea in bar set- 
 ting out such award, but a question of fact. Duren v. Getchell, lv. 241. 
 
 24. The mere facts, that the commissioners appointed in 1859 to assess 
 the annual damages for flowage, reported the sum of f 15 therefor, and 
 the referees, in I860, awarded $50 for the perpetual right of flowage, and 
 that the same person was one of the commissioners as well as one of the 
 referees, and concurred in both the report and the award, are not suffi- 
 cient to impeach the award for corruption, gross partiality, or prejudice. 
 Duren v. Getchell, lv. 241. 
 
 25. To be conclusive upon the parties to it, an award must contain in 
 express terms a clear and distinct determination of the exact point sub- 
 mitted. Wyman v. Hammond, lv. 534. 
 
 26. A line being in dispute, the owners of the land submitted to the 
 arbitrator "to run said line, according to his best judgment, agreeable 
 to the decision of" a former arbitrator, who had, under a former submis- 
 sion, made a survey and established the line. The award under the lat- 
 
AEREST. 
 
 25 
 
 ter submission was, that " the line should be according to an old and well- 
 marked line traced by" the latter arbitrator; then followed a description 
 of the line by courses, distances and monuments. In the trial of a 
 writ of entry, claiming to the line made by the latter award. Held, that 
 the single question in the latter submission was to ascertain where, upon 
 the face of the earth, was the line established by the former arbitrator ; 
 and that the award, not having followed the submission, was not conclu- 
 sive. 'Wyman v. Hammond, lv. 534. 
 
 See Assumpsit, 13, 27. 
 
 IV. EFFECT OF THE AWAED, AND HOW ENFORCED OE 
 AVOIDED. 
 
 27. If objections are filed and prosecuted to the acceptance of the re- 
 port of a referee, and they are overruled at Nisi Prius, as being insuffi- 
 cient to prevent the acceptance even though the allegations should be 
 proved, and exceptions are alleged, it cannot be argue^ against sustain- 
 ing the exceptions, that no evidence of the alleged facts was offered. 
 Black V. Hichey, xlviii. 545. 
 
 28. Exceptions to the ruling whereby the report of referees was ac- 
 cepted, are not sustainable, if objections in writing were not filed as 
 required by the 21st Rule of Court. Hall v. Decker, li. 31. 
 
 29. If a submission under seal (not in the statute form) contain the 
 condition that judgment rendered on .the report shall be final, and does 
 not provide for the return of the report to some court, debt may be 
 maintained upon the award. Hay v. Hooper, li. 178. 
 
 30. The award of referees, to whom the claim mentioned in the re- 
 solve of Feb. 20, 1860, c. 816, and referred by warden, is binding upon 
 the parties. Allen v. Tinker, lii. 278. • 
 
 31. The burden is upon the party objecting to a Report of referees to 
 establish the facts upon which he relies. JRawson v. Hall, lvi. 142. 
 
 32. Where a real action, brought by the assignee of a mortgage 
 against the mortgager and his tenant at will, was referred, together with 
 all matters in dispute between the parties, and the referees reported that, 
 in fixing upon the amount to be paid by the mortgager to enable him to 
 redeem, they took " into consideration the mutual notes and accounts, 
 and claims of said assignee and mortgager against each other," Held, 
 that it did not appear, from the report, that the sum thus fixed upon was 
 thereby increased rather than diminished, and therefore the report would 
 not be set aside for that reason. Rawson v. HaM, lvi. 142. 
 
 ARREST. 
 
 1. By virtue of R. S. of 1857, c. 116, § 6, an officer is not required to 
 arrest a debtor on execution, unless a written direction to do so, signed 
 by the creditor or his attorney, is indorsed thereon, and a reasonable 
 
 \s, 
 
26 • AESON. ASSAULT AND BATTEKY. 
 
 sum for fees is paid or secured to the officer. Mills v. Gilbreth, xlyii. 
 320. 
 
 2. Au arrest under R. S. of 1857, c. 113, § 2, will be illegal, if the cer- 
 tificate omit to declare that the person to be arrested is to " take with 
 him property," &c. Sargent v. Roberts, lii. 590. 
 
 See Amendment, 20. 
 
 ARREST OF JUDGMENT. 
 
 See Judgment. 
 
 ARSOK. 
 
 1. Under R. S. of 1857, c. 119, § 1, when arson is committed by setting 
 fire directly to the dwelling-house of another, the indictment need not 
 expressly allege the intent. State v. Hill, lv. 365. 
 
 2. Aliter, when the crime is committed by setting fire to any building 
 adjoining the dwelling-house, or to any building owned by the accused 
 or another. State v. Sill, lv. 365. 
 
 ASSAULT AND BATTERY. 
 
 1. To justify an assault under the plea of son assault demesne, the 
 defendant must show that the plaintiff committed the first assault, and 
 that what was thereupon done by him was in the necessary defense of 
 his own person. Rogers v. White, xliv. 275. 
 
 2. And he must also show that the force used by him was appropriate 
 in kind, and suitable in degree. Rogers v. Waite, xlit. 275. 
 
 See Indictment, 28, 51. 
 
 UNLAWFUL ASSEMBLY. 
 
 See Peacticb. 
 
ASSESSOR, ASSIGNMENT. 27 
 
 ASSESSOR. 
 
 1. The decision of this court in Herriman v. Stowers, 43 Maine, 497, 
 that the assessors of a town have no right to assess one not an inhabi- 
 tant thereof, applied to poll-taxes. Hartland v. Church, XLvn. 169. 
 
 2. Persons undertaking to act as assessors of a town, without having 
 been legally elected as such, are personally liable for the acts of the col- 
 lector acting under their warrant for the collection of taxes assessed by 
 them. R. S. of 1857, c. 6, § 29, do not apply. Allen v. Archer, xlix, 346. 
 
 3. The board of assessors cannot consist of less than three persons, 
 who shall be qualified by taking the oath prescribed ; and where it does 
 not appear that more than two were thus qualified and acted, a tax as- 
 sessed by them is illegal, WiUiamaburg v. Lord, li. 599. 
 
 ASSETS. 
 See ExECUTOE, &c. 
 
 ASSIGNMENT. 
 
 I. OF CHOSES IN ACTION AND OTHEE RIGHTS. 
 II. EFFECT OF AN ASSIGNMENT. 
 III. ASSIGNMENT FOE THE BENEFIT OP CEEDITOES. 
 
 I. OF CHOSES IN ACTION AND OTHEE EIGHTS. 
 
 1. The assignment of a note secured by a mortgage is not an assign- 
 ment of the mortgage. Stone v. Locke, xlvi. 445. Stewart v. Crosby, 
 L. 130. 
 
 2. The assignee, however, has an equitable interest in the mortgage, 
 which a court of equity will uphold and protect. Stone v. Locke, xlti. 
 445. Stewart v. Crosby, l. 130. 
 
 3. The assignment of a debt may be made by parol, or may be infer- 
 red from the conduct of the parties. Garnsey v. Gardner, xlix. 167. 
 
 4. If made by one of the parties with a stranger acting as the agent of 
 the other, it will be valid, if the acts of the stranger were authorized or 
 subsequently ratified by his principal. Garnsey v. Gardner, xlix. 167. 
 
 5. A. sued B. and attached property, C. became receipter and security 
 for the payment of B.'s debt, and, on judgment being obtained, paid it to 
 the officer having the execution, who paid it to A. Subsequently, C. 
 sued the judgment in A.'s name, obtained a new judgment and extended 
 
28 ASSIGNMENT. 
 
 the execution on the real estate attached in the suit. Held, that C. had 
 all the rights of an assignee, and was entitled to relief in equity against 
 A., who refused to convey to liim the land levied upon. Garnsey y. 
 Gardner, xlix. 167. 
 
 6. A quitclaim deed by the heirs of a mortgagee of real estate, before 
 foreclosure, will not operate as an assignment of the mortgage. Doug- 
 lass V. Durin, li. 121. 
 
 7. And, if the administrator be an heir and a releasee of the other 
 heirs, his deed of quitclaim will not so operate, when he does not con- 
 vey in the capacity of administrator. Douglass v. Durin, li. 121. 
 
 8. If the assignment of his account by a creditor against his debtor 
 to a third person be deemed a settlement of the account made through 
 such third person as agent of the debtor, it would be binding until the 
 whole consideration received is tendered back. Percival v. Hichborn, 
 Lvi. 575. Percioal v. Harlow, lvi. 575. 
 
 See Assumpsit, 21. 
 
 II. EFFECT OF AN ASSIGNMENT. 
 
 9. An assignment of a policy of insurance, void on account of a mis- 
 representation of title, by the consent of the company, adds nothing to 
 its validity. Merrill v. Farmers <& M. Ins. Co., xlviii. 285. 
 
 10. An assignment of a demand discharged by an attorney with whom 
 it was intrusted for collection, for less than was due, does not affect the 
 discharge, unless the attorney's authority'is revoked by the assignee be- 
 fore the discharge. Fogg v. Sanborn, XLVin. 432. 
 
 11. When a policy of insurance, if assigned without the consent of 
 the insurers, was to be void, and the assured executed an assignment to 
 be delivered when such consent had been obtained, but it was not de- 
 livered because consent was withheld, the assignment was held inopera- 
 tive. Smith V. Monmouth M. F. Ins. Co., l. 96. 
 
 12. The assignment of a bond to reconvey real estate, as well as the 
 assignment of a mortgage, must be recorded, or it will not affect the 
 rights of third parties having no actual knowledge of it. Dailey v. 
 Myrick, l. 171. 
 
 13. An assignment and delivery of a negotiable promissory note be- 
 fore maturity, without the indorsement of the payee, gives to the as- 
 signee only the rights of the payee. Haskell v. Mitchell, Lin. 468. 
 
 See Bond, 14. Insiteance, 50, 51. 
 
 ni. ASSIGNMENT FOE THE BENEFIT OF CEBDITOES. 
 
 14. The assignee of an insolvent assigner, under an insolvent law of 
 the State, can represent only the rights and obtain the remedies of the 
 insolvent. Billings v. Collins, xliv. 271. 
 
 15. One of several individual creditors, parties to an assignment under 
 the statute, may maintain an action of covenant broken against the as- 
 signees, without joining the others; for, although all look to a joint 
 
ASSIGNMENT. 29 
 
 fund for their dividends, the claim of each creditor, either as an individ- 
 ual, or as a firm, is several and not joint. Mitchell v. Kendall, xlv. 234. 
 
 16. H. & L. made an assignment, as partners, of all their property, for 
 the benefit of their creditors. Among the private assets of one of the 
 partners, which went into the hands of the assignee, was a note held by 
 him against his copartner for a private debt, which note was sold by 
 the assignee to the plaintiff; and notwithstanding there was a clause in 
 the assignment, by which the creditors of H. & L. released them from all 
 their liabilities. It loas held, that this did not release the partners from 
 their liabilities to each other, and that the plaintiff was entitled to re- 
 cover on the note. Holhrooh v. Lord, xlvi. 23. 
 
 17. The statutes relating to assignments for the benefit of creditors, 
 prescribe no particular form therefor; and any instrument, the provis- 
 ions of which will render effectual the purposes of the law, should be 
 upheld. Page v. Weymouth, xltii. 238. 
 
 18. When there is no suggestion of fraud, an assignment will not be 
 deemed invalid, because the debtor and his assignee executed, at the same 
 time, their instrument of assignment, alike in all respects, each of whom 
 retained a copy, and the third was delivered to their attorney, who was 
 also the attorney of several of the creditors. Page v. Weymouth, xltii. 
 238. 
 
 19. Before the R. S. of 1857 took effect, the time allowed to creditors 
 to become parties to an assignment, was three months after the publica- 
 tion of notice, and not from the date of the assignment. Page v. Wey- 
 mouth, XLVii. 238. 
 
 20. From the computation of time, the day of publication should be 
 excluded ; " after " and " from " being words of exclusion. Page v. Wey- 
 mouth, XLVII. 238. 
 
 21. An assignment of a debtor's property by the officei's of the law of 
 Massachusetts, under the provisions of the insolvency act, will not oper- 
 ate upon the debts or property in this State, so as to defeat the attach- 
 ment of a creditor who is a citizen of Maine, made subsequently to such 
 assignment. Felch v. Bughee, XLVin. 9. 
 
 22. Assignees having received possession of the property of the debt- 
 or, are liable for it to the debtor, if the assignment is invalid ; and to the 
 creditors who become parties thereto, if it is valid. PerJiins v. Hitch- 
 cock, XLix;. 468. 
 
 23. Being liable, each to the other, either assignee may secure the 
 other against such liability in any mode not repugnant to law. Perkins 
 V. Hitchcock, xlix. 468. 
 
 24. Where one assigner, having collected money for the estate, in 
 compliance with a previous agreement with his co-assignee, conveys 
 property to a third person, upon the condition that the latter shall pay 
 the co-assignee the sum collected, and such person afterwards promises 
 the co-assignee to pay it to him, such promise is founded upon a suffi- 
 cient consideration, and is not within the statute of frauds. Perkins v. 
 Hitchcock, xlix. 468. 
 
 25. And such conveyance is valid, though the vender subsequently 
 thereto, and before the vendee makes the promise to the co-assigner, 
 himself makes an assignment. Perkins v. Hitchcock, xlix. 468. 
 
30 ASSUMPSIT. 
 
 26. However defective the description, or however inapplicable the 
 terms of an assignment to property of any kind conveyed and transferred 
 to the assigner, previous to the assignment, with the design to defeat, 
 delay, or defi-aud creditors, property thus situated will pass to the as- 
 signee, and he may maintain a bill in equity against the fraudulent grantor 
 or grantee for the benefit of subsequent as well as prior creditors. (Pub- 
 lic Laws of 1859, c. 112, § 2.) Simpson v. Warren, lv. 18. 
 See Action, 23. 
 
 ASSUMPSIT. 
 
 I. "WHElSr ASSUMPSIT "WILL OE WILL NOT LIE. 
 
 IL rOE MONEY HAD AND EBCEIVBD, AND GENEEALLY. 
 
 III. EOE LABOE AND SEEVICES. 
 
 IV. PLEADINGS. EVIDENCE, AND PEACTICE. 
 
 I. WHEN ASSUMPSIT WILL OE WILL NOT LIE. 
 
 1. When one copartner furnishes another with funds which it was the 
 duty of the latter to furnish as a part of the capital stock, he may recover 
 the same in an action of assumpsit, before the final settlement of the 
 partnership business. Wright v. Eastman, xliv. 220. 
 
 2. For a final balance, assumpsit may be maintained after the whole 
 business of the copartnership has been settled, but not before. Wright 
 V. Eastman, xliv. 220. 
 
 3. Where there was no money originally paid by either party to a co- 
 partnership, but the capital stock consisted of accommodation paper, 
 originally between the parties, but subsequently renewed and kept alive 
 by the credit of another house, and it did not distinctly appear by whom 
 it was ultimately paid, it is too remote from the original transaction, 
 even if paid by the plaintiff, to authorize him to maintain assumpsit as 
 for money advanced beyond his proportion of the copartnership stock. 
 
 Wright v. Eastman, xliv. 220. 
 
 4. Assumpsit cannot be maintained against a trespasser who has cut 
 and carried away grass, if he has neither sold it, nor had any benefit 
 from it, but in its use. Hatch v. Patten, xlv. 41. 
 
 5. The admission of a defendant, pending the suit, made to one in no 
 way connected with the land as plaintiff's agent or otherwise, that he had 
 no other defense than title to the land, cannot be regarded as an express 
 promise to pay for hay sued for in assumpsit, which he had wrongfully 
 cut and taken from the premises ; nor does such admission imply any 
 engagement to account for it. JBalch v. Patten, xlv. 41. 
 
 6. The impeachment of a deed, on the ground of fraud as against 
 creditors, is not a question that can be settled in an action of assumpsit. 
 Batch V. Patten, xlv. 41. 
 
 7. A. and B. owned a horse in common. B. took it under an agree- 
 ment to return with it the next week, and either buy A.'s half or sell his 
 
ASSUMPSIT. 31 
 
 own half to A., but failed to return the horse and buy A.'s half. _ Held, 
 that A. cannot maintain assumpsit against B. for the value of his interest 
 in the horse. WMtmore v. Alley, xlti. 428. 
 
 8. The defendant, under a yerbal agreement to purchase certain real 
 estate of the plaintiff, went into possession thereof. He failed to pay at 
 the time stipulated, and afterwards voluntarily abandoned the premises. 
 Though there was no agreement to pay rent, it was held, that the defend- 
 ant sustained to the plaintiff the relation of tenant at will, and that as- 
 sumpsit for use and occupation would lie. Patterson v. Stoddard, xlvii. 
 355. 
 
 9. A party requesting another to bring or defend a suit, in which the 
 former has an interest, and promising him to indemnify him against the 
 expense, it seems is bound by his promise. Jordan v. McKenney, xlviii. 
 104. 
 
 10. Where a creditor had obtained a judgment against a principal de- 
 fendant and trustee, and made a demand upon the trustee within thii-ty 
 days thereafter, but neglected to sue out scire facias. Held, that the 
 debtor could not, after the lapse of twenty years, maintain assumpsit 
 against the creditor for such neglect, it not appearing that the suing out 
 of scire facias would have been of any service to the debtor. Merrill 
 V. Noble, XLVIII. 140. 
 
 11. If a tenant in common, without the consent of his co-tenant takes 
 the whole income, or more than his share of the income of the common 
 property, he is liable to such co-tenant in assumpsit, after demand, for 
 the excess above his share. Dyer v. Wilbur, xlviii. 287. 
 
 12. But if he takes the income of a specified portion of the property, 
 with the consent of his co-tenant, assumpsit will not lie. Dyer v. 'Wil- 
 bur, XLVIII. 287. 
 
 13. Assumpsit will not lie on an award made in pursuance of a sub- 
 mission under seal. Holmes v. Smith, xlix. 242. 
 
 14. Where real estate is devised, charged with a legacy to another 
 person, the devisee, by accepting the devise, becomes liable in assumpsit 
 for the legacy. Willis v. Roberts, xLvni. 257. 
 
 15. Indebitatus assumpsit will not lie to recover double the price of 
 building the defendant's part of a divisional fence. Sanford v. Has- 
 hell, L. 86. 
 
 16. A,, the owner of the right of redeeming certain land of which B. 
 held a recorded mortgage, conveyed the same to C, taking a mortgage 
 back to secure a part of the purchase-money. The mortgage was re- 
 corded, but the deed was not. Afterwards W. took an assignment of 
 the latter mortgage, but, in the mean time, M., a creditor of A., attached 
 A.'s right of redemption, seized and sold it, and the purchaser's title was 
 perfected by lapse of time. W., not knowing of ^M.'s attachment and 
 sale, and without consulting the registry, tendered to B. the amount due 
 on the mortgage held by him, which B. accepted and discharged the 
 mortgage. Held, that W. cannot maintain assumpsit against B. to recover 
 back the money paid to redeem the premises from the first mortgage, as 
 his loss resulted from his own neglect to examine the registry and to 
 make due inquiry as to prior incumbrances. Wilson v. Barker, l. 447. 
 
 17. The defendant wrote the plaintiff, — " Let E. W. have what flour he 
 may want, on commission, and I will be responsible for the amount sold 
 
32 ASSUMPSIT. 
 
 by him, for you, on commission." Held, that such an agreement will not' 
 sustain assumpsit for goods sold and delivered to the defendant, as it is 
 not a contract for the purchase of goods, nor authority to sell any goods 
 to E. W. on the defendant's account. Lord v. Willard, li. 196. 
 
 18. If parties intend to make a payment of money to depend upon the 
 happening of a future event, the money cannot be recovered if the con- 
 tingency does not occur. Be Wolfe v. French, li. 420. 
 
 19. Aliter, where the debt is to be absolute, and the happening of some 
 contingent event is fixed upon as the term of payment, — as when a vessel 
 shall have arrived at a specific point, and the vessel is lost on the voy- 
 age ; the law in such case will i-equire payment to be made within a rea- 
 sonable time after the loss of the vessel is ascertained. Be Wolfe v. 
 French, li. 420. 
 
 20. Assumpsit cannot be maintained for breach of covenant in an in- 
 strument under seal. Pope v. Machias W. P. & M. Co., lii. 535. 
 
 21. The assignee of a chose in action may maintain a suit in his own 
 name on the promise of the debtor to pay him the same. Farnham v. 
 
 Virgin, lii. 576. Page v. Banforth, liii. 174. 
 
 22. Under R. S. of 1857, c. 46, § 26, assumpsit may be maintained by 
 a creditor of a corporation against a stockholder. Hathorn v. Calef, 
 Lin. 471. 
 
 23. At the time of making a verbal contract for the purchase of land, 
 the purchaser paid fifty dollars in part-performance, and afterwards ter- 
 minated the contract, notified the seller of the fact, and demanded the 
 repayment of the fifty dollars. Held, not recoverable. Plummer v. 
 Bucknam, lv. 105. 
 
 24. Where, as the consideration of a conveyance of land by the plain- 
 tiff to the defendant, the former relies upon the parol promise of the latter 
 to convey certain other land to him, aife the defendant refuses to exe- 
 cute such promise, the plaintiff may recover the value of his conveyance 
 on an implied promise. Bassett v. Bassett, lv. 127. 
 
 25. Where the defendant, a deputy collector of taxes, directed the 
 plaintiffs to publish an advertisement requesting tax-payers to pay their 
 taxes to him forthwith, and charge the price of such publication to the 
 town ; and the plaintiffs followed the defendant's direction, but the town 
 denied the defendant's authority to contract for such publication and re- 
 fused to pay for the same ; in assumpsit against the defendant for the 
 price, Held, that case was the only remedy against the defendant ; and 
 that the plaintiffs could not waive the tort and bring assumpsit. Nbyes 
 V. Boring, lv. 408. 
 
 26. The lessor of a shop verbally agreed with the lessee that the latter 
 might have the use of certain chattels belonging to the former, in the 
 shop, during the continuance of the lease. When the lease expired, the 
 lessee carried away the chattels, claiming them as his own, whereupon 
 the lessor sued him in indebitatus assumpsit for goods sold and delivered. 
 Held, the action was not maintainable. Paine v. Mc Qlinchy, lvi. 50. 
 
 27. In accordance with the terms of a deed of submission, entered into 
 by the plaintiff, defendant and one other, the referees awarded under 
 seal that, of the $100 charged by them for fees, this defendant should 
 pay $80, this plaintiff $13, and the other party $7, these being the sev- 
 eral sums chargfed by the referees respectively. The defendant alone 
 
ASSUMPSIT. 33 
 
 refusing to perform her part of the award, was sued jointly with the 
 other parties to the submission, by the referee who charged this sum 
 awarded for her to pay, and recovered judgment, which was satisfied by 
 the plaintiff, who thereupon sued the defendant in assumpsit to recover 
 the amount of such judgment. Held, that the action being for contri- 
 bution and not upon the award, should be assumpsit ; that the submission 
 and award were admissible in evidence ; and that the plaintiff recover 
 the full amount paid by him and interest from the time of payment. 
 Stevens v. Record, lvi. 488. 
 
 28. A creditor who has assigned his account cannot maintain assump- 
 sit thereon unless he first rescind the assignment and tender back the 
 whole consideration received. Percival v. Ilichborn, lti. 575. 'Perci- 
 val V. Harlow, lti. 575. 
 
 II. FOE MONEY HAD AND RECEIVED, AND GENERALLY. 
 
 29. Where one has the money of another, which he ought to pay, he 
 is liable in an action for money had and received, although he has never 
 seen or heard of the party who has the right of action ; and when the 
 fact is proved that he has the money, if he cannot show that he has a 
 legal or equitable ground for retaining it, the law creates the privity and 
 the promise ; but where' a debtor has placed money in the hands of an- 
 other as his servant, to be delivered to his creditor in payment or part- 
 payment of his debt, he may recall it, and the servant will not be liable 
 to the creditor therefor. Lewis v. Sawyer, xliv. 332. 
 
 80. If a debtor places money, which he owed his creditor, in the hands 
 of his servant, for the purpose of discharging his debt, and the servant 
 retains it, an action for the money may be maintained by the creditor 
 against the servant ; but if the debtor, before payment by the servant, 
 takes back the money, the servant is not liable to the creditor ; and any 
 person to whom money is paid for such a purjDose is thereby the servant 
 of the debtor; but otherwise if the money is paid to or sent by an agent 
 of the creditor, as thereby the debtor would be discharged. Lewis v. 
 Sawyer,' :KLvr. 832. 
 
 31. Thus, eight days before the maturity of a note given by S. to the 
 defendant and by the Mtter indorsed to the plaintiff, S. drew a draft for 
 same amount in favor of the defendant for the purpose of meeting the 
 note. After the defendant received the money on the draft, S. assented 
 to his appropriating the money on two other notes made and indorsed 
 by the same parties. Held, that an action for money had and received 
 could not be maintained by the plaintiff against the defendant before the 
 receipt of the money on the draft. Lewis v. Sawyer, xliv. 332. 
 
 32. Vagueness and uncertainty of proof are an objection to the sustain- 
 ing of a count for money had and received. Perkins v. Gushman, xliv. 
 484. 
 
 33. Upon the money counts, parol evidence was held admissible to 
 prove that the defendant, for the amount expressed as the consideration 
 in a deed, agreed to convey to the plaintiff two lots of land, each for a 
 specified price ; that the plaintiff paid the full sum for both lots ; and 
 that, by the mistake or fraud of the grantor, only one of the lots was 
 conveyed by the deed. The defendant refused upon request to convey 
 
 3 
 
34 ASSUMPSIT. 
 
 the other lot, and the plaintiff received back the consideration paid for 
 it and interest. Goodspeed v. Fuller, xlvi. 141. 
 
 34. A writing, " due A. B., or order, twenty dollars on demand," is ad- 
 missible in evidence to sustain a count for money had and received, in a 
 suit by the indorser against the maker. Carver v. Hayes, xlvii. 257. 
 
 35. The owner of real estate may maintain assumpsit for money had 
 and received against a person who has taken the rents and profits of it, 
 both parties having acted under a mistake as to the title. Shaw v. Mus- 
 sey, XLVin. 247. 
 
 36. When a person has been taxed for personal estate in a town of 
 which he was not an inhabitant, and has been compelled to pay it, and 
 the money has been paid into the town treasury, he may recover it of 
 the town for money had and received, without proof that the acting offi- 
 cers who assessed, collected, and received the money were legally elect- 
 ed and qualified. Hathaway v. Addison, xlviii. 440. Look v. Industry, 
 LI. 375. 
 
 37. Nor will his right to recover be affected by the fact, that he owned 
 real estate in the town, which was not taxed. Hathaway v. Addison, 
 XLVin. 440. 
 
 38. Where the plaintiff agreed in writing with the defendants to keep 
 certain specified roads in good repair, for three years, "to the acceptance 
 and approval of the mayor," etc., the plaintiff cannot recover, either on 
 a special count on the contract, or on quantum meruit, without procur- 
 ing, or attempting to procure such " acceptance and approval." Veazie 
 V. Bangor, liii. 50. 
 
 39. When money, or specific articles which have since been converted 
 into money, has been stolen, the owner may maintain assumpsit for money 
 had and received against the thief Howe v. Clancey, Lin. 130. 
 
 40. The law, as declared in Foster v. Tucker, 8 Maine, 458, was 
 changed by c. 102 of the Public Laws of 1844, incorporated into R. S. 
 of 1857, c. 120, § 12. Howe v. Clancey, liii. 130. 
 
 41. Where an agent of the plaintiff, to sell a vessel, paid all the pro- 
 ceeds to the defendant, the defendant cannot resist an action for money 
 had and received on the ground that the plaintiff did not own the part 
 of the vessel which he authorized the agent to gpll. Jenks v. Manson, 
 LIII. 209. 
 
 42. The proceeds of unbranded pressed hay, tortiously taken and sold, 
 or wrongfully sold by one not the owner, but lawfully possessed thereof, 
 may be recovered by the owner in assumpsit for money had and received 
 against such tortious vendor. Foye v. Southard, liv. 147. 
 
 43. The cashier of a bank received at the banking house a certain sum 
 of money from the plaintiff, with instructions to appropriate it to the 
 payment of a specified note signed by the latter, then undue ; but he 
 applied the money upon another note signed by the plaintiff, both of 
 which were payable to the bank. Held, that the cashier is liable in an 
 action for money had and received to refund the money thus received, 
 with interest from the time when received, and whether the cashier ap- 
 plied the money to his own use or to that of the bank, is immaterial. 
 Norton v. Kidder, liv. 189. 
 
 44. Proof that the defendant, as trustee of the plaintiff, at a time 
 
ASSUMPSIT. 
 
 35 
 
 named, deposited in a certain savings bank a certain sum of money ; 
 that the money was delivered to the defendant by the plaintiff; and that, 
 upon demand by the plaintiff, the defendant refused to pay over the 
 money, is not sufficient to sustain assumpsit for money had and received. 
 • Hearne v. Hearne, lv. 445. 
 
 45. The plaintiffs, being about to purchase grass-seed for themselves, 
 received money from the defendant, with a request to purchase seed for 
 him at a certain rate. They bought for themselves and the defendant, 
 and sent it together in bags marked in the names of the plaintiffs. Upon 
 its arrival at the place where the parties resided, the defendant took all 
 the seed and sold it. Held, that the facts would not sustain a count upon 
 an account annexed by the plaintiffs against the defendant, but it would 
 support a count for money had and received. Gray v. Farmer, lv. 487. 
 
 See SBT-ori', 4. Shipping, 46. 
 
 in. FOE LABOR AND SERVICES. 
 
 46. Where the defendant had contracted to sell the plaintiff a house, 
 to be paid for in labor, which the latter, with the defendant's knowledge 
 and without his objection, put in repair, and also performed labor in part- 
 payment therefor, — if, afterwards, the plaintiff is, by fault of the defend- 
 ant, prevented from completing his contract, he may recover of him, in 
 assumpsit, for the improvements made and labor performed. Wright v. 
 Haskell, xly. 489. 
 
 47. In assumpsit for labor done, if the defendant, in his specifications 
 of defense, does not deny the performance of the labor, but admits it 
 and alleges a speciaj. contract and payment, the plaintiff need not prove 
 performance to entitle him to some damages claimed, unless the defend- 
 ant establishes some defense. SJcillings v. Norris, l. 72. 
 
 48. A person cannot recover, under a general count, for labor per- 
 formed under a. special contract, by the terms of which, some person is 
 agreed upon to examine and determine the character, quality, or quantity 
 of the work done, unless he proves that he attempted in good faith, and 
 did all he reasonably could, to perform it in all respects, including the ex- 
 amination and decision, or some sufficient reason for the want of them. 
 Veazie v. JBangor, li. 503. 
 
 IV. PLEADINGS, EVIDENCE, AND PRACTICE. 
 
 49. If an agent purchase a quantity of lumber for his principal with- 
 out disclosing his agency, taking a bill to himself and paying therefor, — 
 if the lumber falls short in quantity on delivery, the principal may recover 
 back the excess of payment in assumpsit in his own name, Cushing v. 
 nice, xLvi. 303. 
 
 50. Evidence of false and fraudulent representation, though contra- 
 dictory to the bill of sale, is admissible. Cushing v.Wiice, xlvi. 303. 
 
 51. In assumpsit for balance for wagons alleged to have been sold to 
 the defendant, the plaintiff may testify that he intended' to give credit to 
 the defendant when he failed with the wagons, although he charged 
 them on his book to the defendant's son. Folsom v. Skofield, liii. 171. 
 
 52. To support a general count of indebitatus assumpsit, for goods 
 
36 ATLANTIC AND ST. LAWRENCE KAILEOAD COMPANY. 
 
 sold and delivered, proof of an actual delivery to, and acceptance by 
 the purchaser of the goods sued for is essential. Atwood v. Lucas, lhi. 
 508. 
 
 53. If none, or part only of the goods have been accepted by the pur- 
 chaser, the seller's remedy is an a'ction of special assumpsit for goods 
 bargained and sold. Atwood v. Lucas, liii. 508. 
 
 54. Delivery to and acceptance by the purchaser. of any portion of 
 the goods bargained for, will satisfy the statute of frauds ; but to author- 
 ize the maintenance of a suit for goods sold and delivered, there must 
 be a delivery and acceptance of all the goods sued for. Atwood v. 
 Lucas, LIII. 508. 
 
 55. If the purchaser of goods refuse to accept and pay for them, the 
 owner may at once resell them for the most he can get, and charge the 
 first purchaser with the difference between the contract price and that 
 actually obtained. Atwood v. Lucas, lhi. 508. 
 
 56. In assumpsit by the owners of a vessel against its master for earn- 
 ings, a release by one of the plaintiffs is a bar to the action. Sail v. 
 Gray, liv. 230. 
 
 57. And evidence of collusion between the parties to the release is in- 
 admissible to change its effect. Hall v. Gray, liv. 230. 
 
 58. Where, as the consideration of a conveyance of land by the plain- 
 tiff to the defendant, the former relies upon the verbal promise of the 
 latter to convey certain other land to him, and the defendant refuses to 
 execute such promise, the plaintiff may prove the special agreement, 
 not as a basis of recovery, but as a declaration bearing upon the question 
 of value. Bassett v. Bassett, lv. 127. 
 
 59. And if the plaintiff shows that the defendant*greed to give an- 
 other piece of land for it, worth $2000, such agreement is a practical 
 admission that the land conveyed by the plaintiff was worth that sum. 
 Bassett v. Bassett, lv. 127. 
 
 60. When, in indebitatus assumpsit, it appears that one of the several 
 joint defendants resides without the State, so that no service can be made 
 on him, the plaintiff may discontinue as to him, and have judgment 
 against such alone as are within the jurisdiction. Batid v. Nutter, lvi. 
 3-39. 
 
 61. And such judgment remaining in part unsatisfied, is no bar to a 
 subsequent suit and judgment for a balance of the same cause of action 
 against the remaining defendant, whenever he conies within the jurisdic- 
 tion. Band v. Nutter, lvi. 339. 
 
 See Amendment, 13. 
 
 ATLANTIC & ST. LAWRENCE RAILROAD COMPANY. 
 
 The At. & St. eT R. R. Company is not relieved from the liability im- 
 posed by Public Laws of 1842, c. 9, § 5, by reason of having leased their 
 road to the Grand Trunk Railway of Canada, which was in possession, 
 controlling and managing the leased road, at the time of the injury ; and 
 notwithstanding the fire was communicated by a locomotive engine, which 
 the lessees had furnished. Stearns v. At. & St, L. E. B. Co., xlvi, 95. 
 
ATTACHMENT. 
 
 87 
 
 ATTACHMENT. 
 
 I. "WHAT PROPERTY IS ATTACHABLE, AND WHEN. 
 
 II. VALIDITY OF AN ATTACHMENT. 
 
 III. HOW DEFEATED OR DISSOLVED. 
 
 IV. EFFECT, RIGHTS, AND LIABILITIES RESULTING FROM AN AT- 
 
 TACHMENT. 
 
 I. WHAT PROPERTY IS ATTACHABLE, AND WHEN. 
 
 1. Where it was agreed that the plaintiff should retain the ownership 
 of certain lumber until certain notes given him by the owner should be 
 paid, and he was in possession at the time of the attachment by the cred- 
 itors of the maker of the notes, he will be entitled to hold it against 
 them. Ooe v. Bicknell, xliv. 163. 
 
 2. Under R. S. of 1857, c. 81, § 36, a horse, exceeding $100 in value, 
 is not exempted from attachment, and seizure on execution. Hughes v. 
 Farrar, xlv. 72. Everett v. Herrin, xlvi. 357. 
 
 3. The husband has a life-estate in 'the real property of the wife, ac- 
 quired prior to the Public Laws of 1844, c. 117, which may be attached 
 for his debts. Beale v. Knowles, xlt. 479. 
 
 4. Coupons, or notes for the payment of the interest on bonds issued, 
 are choses in action, and cannot be attached by trustee process, or sold 
 on execution. Smith v. -E tfc P. B. M. Co., xlt. 547. 
 
 5. Such notes, held as collateral security, are not subject to the pro- 
 visions of R. S. of 1841, c. 119, § 58 (R. S. of 1857, c. 86, § 50). Smith 
 Y.K.&P. R. R. Co., XLV. 547. 
 
 6. Where, by the terms of a lease of a farm, " all the hay and straw 
 shall be used on said farm," the hay raised thereon by the lessee cannot 
 be attached or taken on execution by his creditors. Coe v. Wilson, 
 XLVI. 314. 
 
 7. By R. S. of 1857, c. 81, § 36, a debtor can have no interest in a 
 horse exceeding in value $100, which is exempted from attachment. 
 Everett v. Herrin, xlvi. 357. 
 
 8. If he owns two horses, neither of which is of the value of $100, 
 but whose aggregate value exceeds that sum, he may elect which shall 
 be exempt. Mierett v. Herrin, xlvi. 357. 
 
 9. But if one of the horses is of a less, and the other of a greater val- 
 ue than $100, the owner has no election, the former only being exempt. 
 Everett v. Herrin, xlvi. 357. 
 
 10. A debtor, temporarily within the State, is entitled to the benefit of 
 these provisions. Everett v. Herrin, xlvi. 357. 
 
 11. The purchaser of a right in equity to redeem real estate, sold on 
 execution, acquires n<i interest that can be attached or seized, until the 
 expiration of the year allowed the debtor to redeem from the purchaser. 
 Rogers v. Wingate, xlvi. 436. 
 
 12. The obligor of a bond for the conveyance of real estate, who has 
 forfeited his right by a non-performance of the condition precedent, has 
 no interest in the estate which can be attached ; and if, after a nominal 
 
38 ATTACHMENT. 
 
 attachment of the same is made, the obligor should, without fraud, 
 procure a renewal of the bond, and sell and assign the same, his as- 
 signee's rights would not be affected by the attachment. Brett v. 
 Thompson^ xlvi. 480. 
 
 13. By R. S. of 1857, c. 61, § 1, real estate paid for by a debtor and con- 
 veyed to another with intent to defraud creditors, is liable to be taken 
 for debts contracted before such conveyance. Dockray v. Mason. XLvra. 
 178. 
 
 14. Under the statute exempting from attachment " one pair of work- 
 ing cattle," a bull used for work is exempt, although the owner has no 
 other cattle. Bowzey v. Newhegin, xlviii. 410. 
 
 15. By R. S. of 1841, c. 114, § 64 (R. S. of 1857, c. 81, § 58), the mon- 
 ^y remaining in the hands of an officer, arising from the sale of personal 
 property attached, appraised, and sold according to law, could be further 
 attached, as the property of the owner, in like manner, as the property 
 itself might have been, " if it had remained in the hands of the officer." 
 Everett v. Serrin, xlviii. 537. 
 
 16. Aliter, if the sale was not in compliance with the statute. Everett 
 V. Serrin, xlviii. 637. 
 
 17. By Pub. Laws of 1859, c. 114, personal property mortgaged could 
 not be attached, until after tender of payment of the mortgage debt. 
 Barrows v. Turner, l. 127. JDeering v. Lord, xlv. 293. 
 
 18. Money in the hands of a station agent of a railroad company, re- 
 ceived for tickets sold and freight collected, cannot be attached in his 
 hands by trustee process, in a suit against the company by one of its 
 creditors. Pettingill v. And. JR. B. Co., li. 370. /Spragite v. Steam 
 Nav. Co., Lii. 592. 
 
 19. A mortgagee of personal property may waive his lien under the 
 mortgage, and attach the property in a suit at law. Whitney v. Farrar, 
 LI. 418. 
 
 20. A debtor may waive his privilege, and consent that exempted 
 property may be attached. Smith v. Chadwiclc, li. 515. 
 
 21. A colt is exempt from attachment when the debtor owns neither 
 oxen nor horses, of the statutory value. Kennedy v. Bradbury, lv. 107. 
 
 22. By c. 106 of the' Pub. Laws of 1862, personal property of a sol- 
 dier to the amount of $1000 in addition to that already exempted, is ex- 
 empt from attachment, to be designated by the debtor or his agent or 
 attorney. If his jjersonal property did not exceed $1000, no designa- 
 tion was necessary. Bridgton v. Lahin, lhi. 106. 
 
 23. Prior to July 1, 1857, when c. 11 of the Pub. Laws of 1857 went 
 into effect, " the right to cut or carry away timber or grass from land 
 sold by Maine and Massachusetts, in which the soil was not sold," was 
 not subject to attachment. Phillips v. Pearson, lv. 570. 
 
 24. The interest of a mortgagee of lands cannot, before foreclosure, be 
 attached or sold on execution. Brown v. Bates, lv. 520. 
 
ATTACHMENT. 39 
 
 II. VALIDITY OF AN ATTACHMENT. 
 
 (a) Geh-ebal Peinciples. 
 
 (b) Personal Estate. 
 
 (c) Eeal Estate. 
 
 (a) General Principles. 
 
 25. If a lien writ contain no direction to attacli the ship on which the 
 lien is sought to be perfected, but only " to attach the goods and estate 
 of the debtor, the attachment of the ship will be invalid, as against one 
 who, previous thereto, had become the purchaser thereof from the 
 builder." Deering v. Lord, xlv. 293. 
 
 26. If the writ contain items for which the plaintiff has no liet, the 
 attachment is not, for that cause, void. Deering v. Lord, xlt. 293. 
 
 (b) Personal Property. 
 
 27. "When personal property has been attached and appraised under 
 R. S. of 1857, c. 81, § 47, the officer must hold it four days at least after 
 appraisal and before sale. Knight v. Herrin, xlviii. 533. 
 
 28. After property has been attached and delivered to a receipter, 
 taking a receipt for the redelivery of the property or the payment of a 
 sum of money, no subsequent attachment can be made without anew 
 seizure. Waterman v. Treat, xlix.309. 
 
 (c) Peal Estate. 
 
 29. By virtue of R. S. of 1857, c. 81, § 31, no attachment of real es- 
 tate " shall be valid, unless the plaintiff's demand, on which he founds 
 his action, and the nature and amount thereof, are sulDstantially set forth 
 in proper counts, or a specification of such claim shall be annexed to 
 such writ." Osgood v. Solyohe, XLvm. 410. Neally v. Judhins, xLVin. 
 666. 
 
 30. Where the writ contained a cotunt for money had and received, 
 ■ but no specification of the claim to be proved under it, the attachment 
 
 is void. Osgood v. Holyohe, XLvm. 410. Neally v. Judhins, XLViir. 
 566. Forbes v. Hall, li. 568. Phillips v. Pearson, lv. 570. 
 
 31. The right of the parties in such case are dependent upon the facts 
 disclosed by the writ, and not upon such as may be subsequently proved 
 or ascertained. Osgood v. Holyohe, XLvm. 410. 
 
 32. When, in addition to the money count, the writ contained a spec- 
 ial count on a promissory note, and judgment was rendered generally 
 upon the declaration, but was entered up for the amount of the note 
 only, the attachment is void. Osgood y. Holyohe, xlviii. 410. Hanson 
 V. Poio, LI. 165. Drew v. Alfred Bank, lv. 450. Phillips v. Pearson, 
 LV. 570. 
 
 33. Where one of the counts was for money had and received, for a 
 sum different from that in the other counts, and there was no specifica- 
 tion of any particular claim under it, the attachment was void. Neally 
 V. Judhins, xlviii. 566. 
 
 34. The return of an attachment of real estate by an officer to the 
 registry of deeds, in which the name of only one of several defendants 
 
40 ATTACHMENT." 
 
 is given, is suflScient to hold the real estate of the defendant named, but 
 not that of the other. Lincoln v. Strickland, li. 321. 
 
 35. The return, « S. J. C, August term, Kennebec County, 1856," suf- 
 ficiently shows to what court and term the writ is returnable. Lincoln 
 T. Strickland, li. 321. 
 
 36. When the amount of several counts exceeds the " ad damnum,''' a 
 recital of the amount of the ad damnum in an officer's return, as the 
 " sum sued for," is a compliance with the statute. Lincoln v. Strick- 
 land, LI. 321. 
 
 37. A simple copy of so much of the officer's return on the writ as 
 relates to the attachment, without being attested, is not such a compli- 
 ance with K. S. of 1857, c. 81, § 30, as to create a valid attachment. 
 Farrin v. Rowse, m. 409. 
 
 38. Neither is the filing of a statement of the « sum sued for," instead 
 of " the value of the defendant's property " which the officer is command- 
 ed to attach. Farrin v. Rowse, lii. 409. 
 
 39. The object of the statute, requiring specifications under money 
 counts, is, that notice may be given of the nature and demand of the 
 claim on which the action is based. Jordan v. Keen, liv. 417. 
 
 40. The specifications will not be held insufficient as against a subse- 
 quent purchaser, where a judgment has been regularly obtained, unless 
 it appears certain that no judgment could be legally given on the money 
 counts, for the causes or claims stated in the specifications. Jordan v. 
 Keen, liv. 417. 
 
 41. An attachment of real estate, made on a writ specifying that "the 
 claims intended to be proved under the foregoing money counts are mon- 
 eys obtained of plaintiif by defendant, on notes " specifically described, 
 may be valid, as against a subsequent purchaser, although neither of 
 the notes mentioned was due at the time the writ issued. Jordan v. 
 Keen, liv. 417. 
 
 42. An attachment of real estate, invalid when made, cannot be made 
 Talid by an amendment of the writ. Lrew v. Alfred Bank, lv. 450. 
 
 43. An invalid attachment of real estate, made on a writ containing 
 a count upon a note, and a count for money had and received without 
 any specification of the claim to be proved under it, is not made valid 
 by striking out the general count and taking judgment on the count 
 upon the note alone. Drew v. Alfred Bank, lv. 450. 
 
 44. " The right to cut and carry away timber or grass from land sold 
 by the State of Maine, or Massachusetts, in which the soil was not sold," 
 can only be attached as an interest in real estate. JPhillips v. Pear- 
 son, LV. 570, 
 
 ni. HOW DEFEATED OR DISSOLVED. 
 
 (a) Negligence oe Misdoings op the officer. 
 
 (b) Othebwise. 
 
 (a) Negligence or misdoings of the officer. 
 
 45. _ The claim of an officer to personal property, seized on execution, 
 is extinguished by his neglect to advertise and sell it, within the time 
 prescribed by the statute. Plaisted v. Hoar, xlv. 380. 
 
ATTACHMENT. 
 
 41 
 
 ■ (b) Otherwise, 
 
 46. If a non-lien item be included in the judgment upon a lien-writ, 
 the attachment will be thereby vacated. Deering v. Lord^ xlv. 293. 
 
 47. An attachment by trustee process is not dissolved by the death of 
 the principal debtor and the issue of a commission of insolvency on his 
 estate, if, before the death of the debtor, the plaintiff had obtained judg- 
 
 'ment, and duly demanded of the trustees to pay over an amount suffi- 
 cient to satisfy the same; although subsequent to such demand and the 
 death of the principal, scire facias issued, and further disclosure was 
 made thereon. Tyler v. Winslow, xlvi. 348. 
 
 48. An assignment of a debtor's property by the officers of the law of 
 Massachusetts, under the insolvency act, will not. defeat the attachment 
 of a creditor, resident in Maine, made subsequent to such assignment. 
 Felch V. Bughee, xlviii. 9. 
 
 49. An attachment is not dissolved by the death of one of the defend- 
 ants. Willard v. Whitney, xlix. 235. 
 
 .50. When an officer attaches personal property, and delivers it to a 
 receipter, taking a receipt for the redelivery of property or the payment 
 of a certain sum of money, the attachment is thereby dissolved. Wa- 
 terman V. Treat, xlix. 309. 
 
 51. Where a party, residing in the State, has been summoned as trus- 
 tee of a party residing in Massachusetts, in a suit brought by a corpora- 
 tion established in the latter, the attachment of the funds is not dis- 
 solved, if the principal defendant shall, after attachment, assign his estate 
 under the insolvent laws of Massachusetts. So. Boston I. Co. v. Bos-- 
 ton L. Works, li. 585. Alger v. Boston L. Works, li. 585. Bean v, 
 Boston L. Works, li. 585. 
 
 52. So, too, if the plaintiff be a citizen of this State. So. Boston I. 
 Works V. Boston L. Works, li. 585. 
 
 53. An attachment of real estate may be dissolved by an attaching 
 creditor otherwise than is provided by Public Laws of 1859, c. 62. Bach- 
 elder V. Perley, liii. 414. 
 
 54. A. and B. severally attached C.'s real estate, on Sept. 1 and 5, 1860, 
 respectively. In November following, prior to any levy. A., for a valuable 
 consideration, executed and delivered to B. a release of his attachment, 
 " so far that B. shall at all times take precedence in any levy he may 
 make in said real estate." B. extended his execution on the premises, 
 June, 1861, and subsequently conveyed by deed of quitclaim his "right," 
 &c., to the plaintiff's ancestor. A. extended his execution June, 1863, 
 and subsequently conveyed, by deed of quitclaim, reciting the release to 
 the defendant's grantor. Held, that the release was valid, and that B.'s 
 levy took precedence. Bachelder v. Perley, liii. 414. 
 
 55. The assignment of a bankrupt's estate, under § 14 of the United 
 States bankrupt act of 1867, does not dissolve an attachment of his es- 
 tate made more than four months prior to the commencement of his pro- 
 ceedings in bankruptcy. Bowman v. Harding, lvi. 559. 
 
 See ANDEOSooGeiN R. R., 5, 
 
42 ATTACHMENT. 
 
 IV. EFFECT, EIGHTS, AND LIABILITIES EESULTING FEOM AN 
 ATTACHMENT. 
 
 (a) INTBEEST OF IHE DEBTOR. 
 
 (b) Eights and duties or the officbe. 
 
 (0) Powers aistd liabilities op a receiptee 
 
 (a) Interest of the debtor. 
 
 56. The statute, authorizing an officer to permit property attached to 
 go back into the hands of the debtor, upon taking a receipt therefor, does 
 not prohibit a reasonable use of the property by the debtor. Tyler v. 
 Winslow, XLTi. 348. 
 
 57. The debtor, himself being the receipter, and having agreed to keep 
 the property for such a compensation aa the officer might deem just and 
 reasonable, may charge the officer the full amount which the officer has 
 charged upon the writ for the same service, without deduction on account 
 of loss by the debtor of a portion of the property, especially when it does 
 not appear that the creditor has made any claim on the officer for such 
 loss. Tyler v. Winslow, xlvi. 348. 
 
 58. Nor is the liability of the officer to the debtor, to pay such com- 
 pensation, affected by the fact that the property had, previous to the 
 service of the trustee process, been mortgaged by the debtor, and that 
 the attaching creditor had compromised with the mortgagee, nor by the 
 circumstance that the officer was a "public officer" under the R. S. of 
 1841, c. 119, § 63 (R. S. of 1857, c. 86, § 55). Tyler v. Winslow, xlvi. 
 348. 
 
 59. An officer, representing subsequent attaching creditors, may im- 
 peach a judgment against the debtor for fraud; but, in an action against 
 himself for not keeping property attached, he cannot impeach the judg- 
 ment to lessen his own liability, or for the benefit of the debtor. Willard 
 V. Whitney, xlix. 235. 
 
 60. The burden of paying the expense of keeping and selling goods 
 attached is upon the debtor. Baldwin v. Hatch, liv. 167. 
 
 (b) Rights and duties of the officer. 
 
 61. The officer to whom an accountable receipt is given, for property 
 attached, must have the receipt with him when he demands the property, 
 that he may surrender it ; otherwise, the demand will be insufficient to 
 render the receipter liable in an action thereon. Gilmore v. McJVeil, 
 xLv. 599. Sinckley v. Bridgham, xlvi. 450. 
 
 62. But the officer need not exhibit the receipt, or make any actual 
 offer to surrender or discharge it. It is sufficient, if he have it with him 
 80 that he can surrender it upon a delivery of the property. Gilmore 
 V. McNeil, XLV. 599. 
 
 63. Where a receipt is in the usual form, the officer need not have the 
 execution in his possession, to make a demand for the property sufficient ; 
 such a demand may be made, even before judgment is rendered. Oil- 
 more V. McNeil, XLV. 699. 
 
 64. Before an appraisal under R. S. of 1857, c. 81, § 47, an attaching offi- 
 cer holds the property by attachment ; after, it is liable to seizure as on 
 
ATTACHMENT. 43 
 
 execution, and is to be sold in the same manner as if so seized. Knight 
 V. Herrin, xlviii. 533. 
 
 65. In an action against an officer for not keeping property attached, 
 he cannot impeach the judgment to lessen his own liability. Willard 
 V. Whitney, xlix. 235. 
 
 66. When representing creditors subsequently attaching, an officer 
 may impeach a judgment against the debtor for fraud. Willard v. Whit- 
 ney, XLIX. 235. 
 
 67. An officer, holding funds arising from the sale of goods attached, 
 may deduct a reasonable compensation for the expense of keeping and 
 selling them before applying the balance to the satisfaction of the execu- 
 tion, although the full amount of his charges is not taxed and allowed in 
 the plaintiff's bill of cost. Baldwin v. Hatch, liv. 167. 
 
 68. An officer is not bound by the taxation of his fees in a suit in 
 which he is not a party. Aliter with a party. Baldwin v. Hatch, lit. 
 167. 
 
 (c) Powers and liabilities of a receipter. 
 
 69. Where an officer, without the authority of the creditor, and in 
 consideration of a surrender of property seized on execution, takes an ac- 
 countable receipt for it, containing a promise to keep it beyond the time 
 fixed by law for the sale of it, the act of the officer is unlawful, and the 
 contract of the receipter cannot be enforced. Plaisted v. Hoar, xlv. 
 380. 
 
 70. The obligation of a receipter to an officer, for the safe-keeping and 
 return of property attached, is only an indemnity to the officer, and his 
 release from liability will be, also, a discharge of the liability of the re- 
 ceipter. Plaisted v. Hoar, xly. 380. 
 
 71. The plaintiff, as an officer, attached a vessel on three writs against 
 A. for which the defendant became receipter. Judgment and execution 
 followed in one of the actions, and, on the refusal of the defendant to re- 
 deliver the vessel, an action was instituted on the receipt, pending which, 
 judgments and executions were had in the remaining suits against A. 
 ^M, that no new demand on the defendant was necessary; and that 
 the plaintiff might recover the amount of the three judgments as dam- 
 ages, that amount being less than the value of the j,vessel. Hinckley v. 
 Bridghain, xlvi. 450. 
 
 72. A receipter is bound to deliver, when properly demanded, the 
 identical articles receipted for, and all of them, when the receipt con- 
 tains a recital only of their aggregate value. Gilmore v. McNeil, xlvi. 
 532. Bicknell v. Lewis, xlix. 91. 
 
 73. If a demand be made on a receipter at any place other than his 
 residence, he will be entitled to a reasonable time and opportunity to 
 make the delivery. Gilmore v. McNeil, xlvi. 532. 
 
 74. If the receipter had previously disposed of a valuable part of the 
 goods, a demand made in the street will be sufficient, though no time 
 and place of delivery be agreed upon. Gilmore v. McNeil, xlvi. 532. 
 
 75. If the receipt specify the value of each article, the receipter is not 
 liable beyond the stipulated valuation. Bicknell v. Lewis, xlix. 91. 
 
 76. If the receipter sell part of the goods, he may, on demand for 
 
44 ATTACHMENT. 
 
 the property, deliver the articles tinsold, and in lieu of those sold, the 
 amount in money, at which they were valued in the receipt. Bichnell 
 V. Lewis, xLix. 91. 
 
 77. When the officer, having the execution, received and indorsed 
 thereon the proceeds of certain articles in the receipt, at their agreed 
 value, and took possession of the remainder, the receipters were thereby 
 dischai'ged. JBicknell v. Lewis, xlix. 91. 
 
 78. When an attachment has been dissolved by the taking of a re- 
 ceipt, no subsequent attachment can be made without a new seizure. 
 And the receipter is not liable on the receipt for an attachment of the 
 same property, returned upon a new writ, on the next day, but antedated 
 so as to correspond with the receipt, although at the time the receipt 
 was given, it was expected that the new suit would issue, on which the 
 property was to be attached. Waterman v. Treat, xlix. 309. 
 
 79. Receipters are liable for the property described in the receipt, if 
 attached on the writ, although not the property of the debtor. Harris 
 V. Morse, xlix. 432. 
 
 80. In an action against a receipter, he cannot defend on the ground 
 that the property is not described with sufficient particularity in the offi- 
 cer's return, the description being — " a lot of millinery goods and mer- 
 chandise." Thompson v. Smiley, l. 67. 
 
 81. N"or that the clerk did not insert in the execution the correct date 
 of the judgment, and also misdated it, if the precept be afterwards cor- 
 rected by order of the court, even after the return day of the execution. 
 Thompson v. Smiley, l. 67. 
 
 82. The party, whose goods were attached, having testified for the re- 
 ceiptor that they were of less value than the amount of the judgment, 
 the plaintiff, on cross-examination, was permitted to interrogate the wit- 
 ness if subsequent attachments of the goods were not made, by his own 
 procurement, in favor of certain other creditors, whom he desired to 
 secure. Thompson v. Smiley, l. 67. 
 
 83. In an action on a receipt stipulating that the defendant, " for value 
 received," promised " to pay " the plaintiff $500, or re-deliver nine masts 
 which the plaintiff has taken by virtue of a writ described ; that, for an 
 acknowledged consideration, the defendant agreed to safely keep and 
 re-deliver said masts to the plaintiff, or his order, on demand; and that if 
 no demand were made within thirty days from the rendition of judg- 
 ment, he would re-deliver said masts, that they might be taken on exe- 
 cution, as they were attached and were the property of the defendant in 
 the writ, Held, (1) That evidence that when he gave the receipt, the 
 defendant had a factor's lien upon the masts for money advanced there- 
 on to the defendant in the original writ, to an amount exceeding their 
 value ; that he then so informed the plaintiff; and that he was misled by 
 the plaintiff, is inadmissible in the absence of fraud or mistake in fact; 
 and (2) That a motion for a non-suit on account of the non-production 
 of the writ and officer's return thereon, showing an attachment of the 
 masts, was rightfully overruled. Potter v, Sewall, liv. 142. 
 
 See Agency, 10. 
 
 Attachment, 56, 57. 
 Estoppel, 20. 
 
ATTORNEY. ATTORNEY AND COUNSELLOR. 45 
 
 ATTORNEY. 
 
 1. A power of attorney, given to the mortgager of a mill by the mort- 
 gagee, who is also mortgagee in possession of certain unmanufactured 
 lumber, by which power the former is authorized to manufacture and 
 dispose of the lumber as agent of the latter, and account for the net pro- 
 ceeds, confers no authority to purchase fixtures or make improvements 
 in the mill at the expense of the mortgagee, however it may be as to the 
 hiring of men, mills, or vessels, in execution of the powers granted. 
 Holmes v. Morse, l. 102. 
 
 2. In an action against a mortgagee of a mill and lumber to recover 
 the value of fixtures furnished while the mortgager was running the mill 
 under a power of attorney from the mortgagee, the power of attorney 
 was rightfully admitted in evidence to show the relation between the 
 parties as to the business, although insufficient to prove such an agency 
 as would render the mortgagee responsible for improvements or new 
 machinery. Holmes v. Morse, l. 102. 
 
 3. The authority in a power of attorney "to grant any and all dis- 
 charges by deed or otherwise, both personal and M|al," as fully as the 
 principal might do, cannot be fairly construed as effiibling the agent to 
 convey by deed of warranty the real estate of his principal. Heath v. 
 Nutter, L. 378. 
 
 See Agency, 9. 
 
 Husband, &c., 1. 
 
 ATTORNEY AND COUNSELLOR. 
 
 I. AITTHOKITY OF AN ATTOENBY. 
 II. LIEN OP AN ATTOENBY. 
 
 L AUTHOEITY OP AN ATTOENBY. 
 
 1. By virtue of R. S. of 1857, c. 82, § 44, no action can be maintained 
 upon a demand which has been intrusted to an attorney for collection, 
 and by him discharged for any consideration however small. Fogg v. 
 Sanborn, xLvm. 432. 
 
 2. The assignment of such a demand does not afiect the discharge, 
 unless the attorney's authority was revoked by the assignor before the 
 discharge. Fogg v. Sanborn, XLvm. 432. 
 
 3. By the Pub. Laws of 1862, c. 150, § 1, no judgment of any court 
 shall be entered against any party unless such party has been legally 
 served with process, or has appeared and answered thereto personally or 
 by attorney duly authorized. Simmons v. Jacobs, Ln. 147. 
 
 4. Prior to March 19, 1862 (when the above statute went into efiect), 
 the general appearance of an attorney for parties defendant, rendered 
 
46 ATTOKNEY AND COUNSELLOE. 
 
 an order of notice and service on parties residing out of the State un- 
 necessary. Simmons v. Jacobs, lii. 147. 
 
 5. By R. S. of 1857, c. 107, §§ 7 & §, when a deposition is taken out 
 of the State, and not under a commission, the adverse party or his at- 
 torney shall have due notice thereof; and no person, for the purposeof 
 this chapter, shall be considered such attorney, unless his name is in- 
 dorsed upon the writ, or the summons left with the defendant, or he has 
 appeared for his principal in the cause, or given notice in writing that he 
 is attorney of such adverse party. Brown v. Ford, lh. 479. 
 
 6. Depositions taken out of the State at the request of the plaintiffs, 
 on notice to an attorney who was not then and never had been an at- 
 torney of record for the plaintiffs, but who, it appeared by other deposi- 
 tions in the case, had been employed to appear for them in the taking of 
 sundry other depositions without the State, and who, in one or more in- 
 stances, had signed an agreenient that a deposition, taken in this case, 
 might be used in another cause in which the plaintiffs were the same, 
 are not admissible. Brown v. Ford, lii. 479. 
 
 See Assignment, 18. 
 Bond, 18. 
 
 II. LIEN OF AN ATTORNEY. 
 
 7. An attorney, who prosecutes a bastardy process to final judgment 
 and execution, has a lien for his services and disbursements upon the 
 bond given by the respondent ; and he may maintain a suit thereon to^. 
 recover his claim,- notwithstanding the complainant in the original pro- 
 cess has given a full discharge to the obligors. BicJcfordx. Ellis, l. 121, 
 
 8. Until the rendition of judgment in an original suit, the attorney's 
 lien does not attach ; but when judgment has been obtained, an execu- 
 tion issued, and the lien has attached thereto, it extends to suits arising 
 from and incidental to the enforcement of the judgment. Newbert v, 
 Cunningham, l. 231. 
 
 9. In a replevin suit, in which judgment has been rendered for the 
 defendant, his attorney has a lien on the execution issued thereon ; and, 
 to the extent of the lien, the attorney is to be regarded as an equitable 
 assignee, with rights coextensive with those of his client, to any reme- 
 dial suit to obtain satisfaction of the same. Newbert v. Cunningham, l 
 231. 
 
 10. The attorney may enforce the replevin bond to the extent of his 
 lien, which the obligor cannot prevent. Newbert v. Cunningham,, l. 281. 
 
 11. If the execution issued on the judgment against the obligors, can- 
 not be collected by reason of their insolvency, the oflScer will be liable 
 for taking a bond with insuflB.cient sureties ; and the attorney may pros- 
 ecute an action against the officer, in the name of the defendant in re- 
 plevin ; and the settlement of the defendant with, and discharge of the 
 officer, will not defeat the attorney's right to recover. Newbert v. Cun- 
 ningham, L. 231. 
 
 12. The right of action against the officer does not accrue until the 
 lien becomes perfected by the rendition of judgment in the replevin 
 suit ; and the statute of limitations does not till then commence to run. 
 Newbert v. Cunningham, l, 231. 
 
AUCTION. — AUGUSTA MUNICIPAL COURT. 
 
 47 
 
 13. If the judgment in the iirst suit is for costs only, the executioh is 
 a notice of the attorney's lien ; but, in this State, the statute does not 
 require notice by the attorney that he claims a lien. Newiert v. Cun- 
 ningham, L. 231. 
 
 14. The lien extends only to such professional services and disburse- 
 ments as are included in the execution. J^ewhert v. Cunningham, l. 
 231. Cooly V. Patterson, lit. 472. 
 
 15. The settlement of an action " in full for debt and costs," after the 
 receipt of a certificate by the clerk, in vacation, in the county where the 
 suit is pending, from the full court, making a final disposition of the 
 cause on its merits, will not defeat the attorney's lien, although an ap- 
 peal from the decision of the clerk in relation to the taxation of costs 
 were pending. Cooly v. Patterson, lii. 472. 
 
 16. The attorney of the prevailing party may charge his client with 
 the amount recovered for travel and attendance, and claim a lien on the 
 judgment therefor. Cooly v. Patterson, lit. 472. 
 
 ATJCTIOlSr AND AUCTIONEER. 
 
 1. When a purchaser, at a sale by auction, fails to comply with the 
 terms of the sale, and the property is resold for a less sum, he will be 
 liable to pay the difference in the two sales, together with the reasonable 
 expenses incurred in making the second sale. Springer v. Berry, XLvn. 
 330. 
 
 2. One who bids off, at a land sale of State lands, a township of land, 
 but takes no deed, acquires no right to the land nor to cut any timber 
 thereon. State v. Patten, xlix. 383. 
 
 3. The mere writing of the price and the name of the purchaser of 
 real estate sold at auction, by the auctioneer, upon a slip of paper not 
 connected with any other papers, is not a sufficient signing within the 
 statute of frauds. Horton v. Mc Carty, Lni. 394. 
 
 4. To bind the purchaser, a memorandum, containing all the essential 
 terms of the contract, must be made and signed by the auctioneer at the 
 time of the sale, and before the termination of the proceedings. Horton 
 Y. Mc Carty, lhi. 394. 
 
 5. It is not sufficient for the auctioneer, in the absence of the purchas- 
 er, to enter the sale on his book at his office upon his return from the 
 place of sale, he having no sufficient memoranduni of the sale, made at 
 the time, from which to make the entry. Horton v. Mc Carty, Lin. 394. 
 
 AUGUSTA, MUNICIPAL COURT OF. 
 
 1. Section 1, c. 303 of the special laws of 1850, required all " war- 
 rants alleging any offence to have been committed within the city of 
 
48 BAIL. BAILMENT. 
 
 Augusta," to be made returnable before the municipal court of that city. 
 Wills V. WMuier, xlv. 544. 
 
 2. Where this requirement was not observed, but, according to the di- 
 rection in the warrant, the person charged was brought before and ex- 
 amined by the magistrate who issued it, Msld, that the warrant conferred 
 no authority on the magistrate to hear and determine the subject-matter 
 of the complaint ; or on the ofiacer who made the arrest and return of 
 the alleged offender; and that in this particular, they were trespassers, 
 and liable for damages. Wills v. Whittier, xlv. 544. 
 
 3. During a vacancy in the office of municipal judge, the recorder 
 could not be ousted of his jurisdiction by inserting his name in the war- 
 rant as a witness. Wills v. Whittier, xlv. 544. 
 
 AWARD. 
 
 See Aebiteation, il 
 
 BAIL. 
 
 When a person is committed to jail by a magistrate for failing to 
 furnish the legal recognizance required, two justices of the peace and of 
 the quorum, under R. S. of 1857, c. 133, § 14, are authorized to admit 
 the prisoner to bail, by taking a recognizance with the same condition 
 which the magistrate had lawfully required. State v. Baker, l. 45. 
 
 BAILMENT. 
 
 1. A railroad company may be bound, by a special contract (but not 
 otherwise), to transport persons or property beyond the line of their 
 own road. Perkins v. Portl. 8. & P. R. B. Co., xlvii. 573. 
 
 2. Although the power to make such a contract is not expressly grant- 
 ed by the act of incorporation, it may be conferred by implication, as 
 necessary to the proper and profitable exercise of the powers specifically 
 enumerated in the charter. Perkins v. Portl. S. <S> P. P. P. Co., xLvn. 
 573. 
 
 3. A company may be thus bound, without any actual agreement with 
 connecting lines, if, by their agents, they hold themselves out to be com- 
 mon carriers to a place beyond the limits of their own road. Perkins 
 V. PoHl. S. & P. P. B. Co., XLvn. 573. 
 
 4. If such agents so represent the company to the public, in such a 
 manner, or for such a length of time, that the corporators may be pre- 
 
BAILMENT. 
 
 49 
 
 sumed to know and assent to it, the company would be estopped to deny 
 it. Perkins v. Portl. 8. & P. B. R. Co., xlvii. 573. 
 
 6. Although the company may have no special authority by their 
 charter, to make such contracts, and might have been enjoined, they 
 cannot plead such want of authority against persons contracting with 
 their agents, empowered so to contract by the express act of the com- 
 pany or their directors, or by implication arising from a mutual arrange- 
 ment amongst all the carriers between the place where the goods are 
 received and that of delivery. PerJcins v. Portl. S. <t P. jR. It. Co., 
 XLTii. 573. 
 
 6. And although the agent making such contract had no authority, 
 express or implied, from the company, yet, if it had for several years, 
 before and after the case in suit, made similar contracts, the company's 
 assent may be presumed, and they will be estopped to deny his author- 
 ity. Perkins v. Portl, S. S P. B. B. Go., xlvii. 573. 
 
 7. Common carriers of passengers are bound to exercise the strictest 
 care consistent with the reasonable performance of their contract of 
 transportation. Edwards v. Lord, xlix. 279. Knight v. P. S. db P. 
 B. B. Co., Lvi. 284. 
 
 8. If a passenger receives an injury which any reasonable skill and 
 care on the part of the carriers could have prevented, they are liable 
 therefor. Edwards v. Lord, xlix. 279. Knight v. P. S. & P. B. B. 
 Co., LVL 234. 
 
 9. In order to recover of a common carrier for hire, damages for the loss 
 of or injury to property, the owner, after proving a contract, express or 
 implied, for the carriage of the goods and the delivery of them to the car- 
 rier, needs only to show further that the goods have not arrived or have 
 received injury, unless the carrier proves the performance of the con- 
 tract. Tarbox v. Eastern S. Co., l. 339. 
 
 10. A bill of lading signed by the carrier, acknowledging the receipt 
 of the goods, "to be delivered in good order to A. B." is prima facie 
 evidence that they were in good condition when received by the carrier ; 
 but the carrier may prove that the goods were damaged before they came 
 into his possession. Tarbox v. Eastern S. Co., l. 339. 
 
 11. In such case, the onus probandi is upon the carrier. Tarbox v. 
 Eastern S. Co., l. 339. 
 
 12. In case against an innkeeper, the words " being entertained as a 
 guest therein in the inn of the said defendant," constitute a sufficient 
 allegation that the defendant was an innkeeper. Nbrcross v. JVbreross, 
 Liii. 163. 
 
 13. The possession of a license does not make, nor the want of it pre- 
 vent a person from being an innholder at common law. JVbreross v. 
 Nbrcross, lhl 163. 
 
 14. Innkeepers ai-e insurers of the property of their guests committed 
 to their care, and are liable for its loss or injury, when not caused by the 
 act of God, the public enemy, or the neglect or fault of the owner or his 
 servants. JVbreross y. JVbreross, lhl 163. 
 
 15. On proof of loss, the onus of bringing the case within the excep- 
 tions is upon the innkeeper. JVorcross v. JVbreross, liu. 163. 
 
 16. If a person goes to an inn as a wayfarer and traveler, and the inn- 
 
 4 
 
50 BAILMENT. 
 
 keeper receives him as such, the relation of landlord and guest attaches 
 at once, with all of its rights and liabilities, and so continues so long as he 
 sojourns there as a traveler. Norcross v. JVbrcross, lhi. 163. 
 
 17. The liability attaches to goods when they are brought within the 
 inn, or otherwise placed within his custody, in some customary and rea- 
 sonable manner. JVbrcross v. JVbrcross, Lin. 163. 
 
 18. If a guest, in the absence of the landlord and his servants, hangs 
 up his coat in the place in an inn allotted for that purpose, it is infra 
 hospitium. JVor cross v. JVor cross, liii. 163. 
 
 19. It is a reasonable regulation for a railroad corporation to fix rates 
 of fare by a tariff posted on their stations, and to allow a uniform dis- 
 count on" these rates to those who purchase tickets before entering the 
 cars. /State v. Goold, mi. 279. 
 
 20. A passenger who thus neglected to purchase a ticket, has no_ right 
 to claim the discount, whether he had a knowledge of the regulation or 
 not; and, if he refuses to pay to the conductor the fare established by 
 the tariff, the conductor is justified in compelling him to leave the train 
 at a regular^station. State v. Goold, liii. 279. 
 
 21. In an action against a common carrier for damages in not reason- 
 ably transporting flour, the decline in its market value, between the time 
 when it actually arrived at its place of destination, and when, in the ex- 
 ercise of proper diligence on the part of the carrier, it might have ar- 
 rived, is a material elernent proper for the consideration of the jury in 
 ascertaining the damages. Weston v. Grand T. It. Go., liv. 376. 
 
 22. By the common law, common carriers are regarded as insurers of 
 goods delivered to them for transportation, except when their loss is oc- 
 casioned by the act of God, or the enemy of the government. JFille- 
 hrown v. Grand T. R. Co., lv. 462. 
 
 23. Common carriers may reasonably restrict their common-law liabil- 
 ity, by notice brought home to the owner of goods, before or at the time 
 of delivery to them, if such notice is expressly or impliedly assented to 
 by the owner. Fillebrown v. Grand T. JR. Co., lv. 462. 
 
 24. Such notice, given to a person who was simply directed by the 
 owner to deliver the goods to the carrier, is not sufficient to bind the 
 owner, in the absence of all knowledge of and assent to such notice on 
 the part of the latter. Fillebrown v. Grand T. M. Co., lv. 462. 
 
 25. The owners of a steamboat are not liable for money stolen from 
 the pocket of a passenger thereon, where it does not appear that the rob- 
 bery was perpetrated by one of the employees of the boat. Abbott v. 
 Bradstreet, lv. 530. 
 
 26. The fare paid by a passenger over a railroad is the compensation 
 for his carriage and for the transportation, at the same time, of such bag- 
 gage as he may require and have for his personal convenience and neces- 
 sity, during his journey. Wilson v. Grand T. JR. of Can., lvl 60. 
 
 27. Baggage subsequently forwarded by his direction, in the absence 
 of any special agreement with, or negligence on the part of the carrier, 
 is liable like any article of merchandise to the payment of the usual 
 freight. Wilson v. Grand T. R. of Can., lvi. 60. 
 
 28. A through ticket over three several distinct lines of passenger 
 transportation, issued in the form of three tickets on one piece of paper, 
 
BANK. 
 
 61 
 
 and recognized by the proprietors of each line, is to be regarded as a 
 distinct ticket for each line. Knight v. P. S. & P. B. E. Co., lvi. 234. 
 
 29. The rights of a passenger purchasing such a ticket, and the liabili- 
 ties of the proprietors of the several lines recognizing its validity, are 
 the same as if the purchase had been made at the- ticket office of the re- 
 spective lines. Knight v. P. S. & P. B. B. Co., lvi. 234. 
 
 30. Common carriers of passengers are not bound to insure the abso- 
 lute safety of their passengers ; but they are required to exercise the 
 strictest care consistent with the reasonable performance of their con- 
 tract of transportation. Knight v. P. S. <& P. B. B. Co., lvi. 234. 
 
 31. To render them liable for an injury to a passenger while under 
 their charge, it is enough if it was caused solely by any negligence on 
 their part, however slight, if, by the exercise of the strictest care and 
 precaution, reasonably within their power, the injury would not have 
 been sustained. Knight v. P. 8. & P. B. B. Co., lvi. 234. 
 
 32. Where the plaintiff's ticket entitled her to a passage over the de- 
 fendants' road to Portland, and by steamboat from Portland to Belfast ; 
 and the defendants had built their track upon their wharf down to the 
 steamboat, and had run their passenger train upon it for a time, and still 
 continued to run their baggage train there ; and they directed their pas- 
 sengers verbally, or by printed sign, to use the wharf as a passage-way 
 to the boat, and they did so use it ; and they made the wharf subsidia- 
 ry and necessary to the proper use and enjoyment of their road ; in an 
 action by the plaintiff to recover for an injury upon the wharf, — Held, 
 (1) That the defendants are bound to exercise the same degree of care, 
 in making the wharf safe and convenient for their through passengers 
 to travel over, as is required of common carriers of passengers, although 
 they required them to disembark at their depot, forty rods distant from 
 the steamboat; and (2) That this liability continued until, in the ordinary 
 course of their passage over the wharf, they reached the point where the 
 liability of the steamboat company commenced. Knight v. P. S. & P. 
 B. B. Co., LVI. 234. 
 
 See Damages, 22. 
 
 BANK. 
 
 1. Where the cashier of a bank was employed to sell certain shares 
 therein at a fixed price, but, before he had completed a sale, the bank 
 was enjoined and proved insolvent, he is not responsible for the supposed 
 value of the stock, no neglect on his part being shown in forwarding the 
 sale. Washburn v. Blake, xlvii. 316-. 
 
 2. Neither is he estopped to show the facts as to the proposed sale, 
 although he had notified the holders that he supposed and had been in- 
 formed that a sale had been effected. Washburn v. Blake, xlvii. 316. 
 
 3. Whether he may or may not have managed discreetly as cashier, 
 does not affect his liability in this behalf. Washburn v. Make, xlvii. 
 316. 
 
52 BANK. 
 
 4. Although he was directed to forward the money or certificates of 
 stock within three days, an injunction having been served on the bank 
 on the third day, the owners of the stock were not even damaged by the 
 certificate not being sent until several days afterwards. Washburn v. 
 £lake, XL VII. 316. 
 
 5. Each stockholder in a bank is liable to make good all losses sus- 
 tained by the pecuniary inability of the directors, by whose management 
 the bank has sustained a loss, to an amount not exceeding the amount 
 of his stock at the time. Wiswell v. Starr, XLvni. 401. Bank Mat. 
 Medemption v. Hill, lyi. 385. 
 
 6. Each stockholder is also liable, at the expiration of the charter, for 
 the redemption of all unpaid bills, in proportion to the stock he then 
 holds. The sum to be contributed by each will be in proportion to the 
 whole number of shares actually held at the expiration of the charter, 
 whether such holders are within or without the jurisdiction of the court. 
 
 Wiswell V. Starr, xlviii. 401. 
 
 7. If the whole number of shares, necessary to make up the capital . 
 stock named in the charter, does not appear on the books, or otherwise, 
 to be held by any persons, the liability will be apportioned according to 
 the number of shai'ss actually held, and not upon the whole capital 
 named in the charter. Wiswell v. Starr, xlviii. 401. 
 
 8. When one of the receivers named in the bill is also a stockholder, 
 the bill cannot be sustained ; but it may be amended on motion. Wis- 
 well V. Starr, xlviii. 401. 
 
 9. The charter of a bank expires, within the 'meaning of the statute, 
 when the injunction is made perpetual. Wisioell v. Starr, xlthi. 401. 
 
 10. No transfer of a share of the capital stock of a bank will secure 
 it from attachment, until such transfer is entered on the books of the cor- 
 poration "showing the names of the parties, the number of shares, and 
 the date of the transfer," according to R. S. of 1857, c. 46, § 11. Sleow- 
 hegan Bank v. Cutler, xlix. 315. Skowhegan Bank v. Cutler, lit. 509. 
 
 11. By special laws of 1858, c. 207, accepting the surrender of the 
 charter of a bank, but continuing its corporate powers for a specified 
 time, for the collection of debts then due, — Held, that it was within the 
 scope of its authority to take a new note in payment of one held by the 
 bank, although the indorsers of the notes were not the same. Mariners' 
 Bank V. Sewall, l. 220. 
 
 12. The act of amendment of 1841, c. 1, § 24, forbids a director to sign 
 as a surety the bond of its cashier ; and his obligation to indemnify 
 others against loss, to induce them to become sureties, is void. Jose v. 
 Hewett, L. 248. 
 
 13. By the act of amendment of 1841, c. 1, § 62, the number of re- 
 ceivers is left to the discretion of the justice making the appointment. 
 WisweU V. Starr, l. 381. 
 
 14. If one of them is removed or resigns, it is discretionary with the 
 court to appoint another in his stead, or allow the two remaining to 
 act. Wiswell v. Starr, l. 381. 
 
 15. Whether or not a particular book is the stock-ledger of a bank, and 
 kept for that purpose, is a question of fact which may be proved by the 
 testimony of the cashier; and such book need not bear the attestation 
 of any officer of the bank. Skowhegan Bank v. Cutler, lu. 509. 
 
BANIi. 
 
 63 
 
 16. A share in the capital stock of a corporation is merely some aliquot 
 part, and not any particular part. Any " designation," except by stating 
 the owner, would be impossible, even if the shares were consecutively 
 numbered. Skowhegan Bank v. Cutler, lii. 509. 
 
 17. When the stock-ledger of a bank shows the name of the proprie- 
 tor, the date of the transfer, the number of shares transferred, the name 
 of the transferrer, and the value of the shares, it is a suiBcient " entry in 
 the books of the bank," within the latter clause of R. S. of 1841, c. 76, § 12 
 (R. S. of 1857, c. 46, § 11). Skowhegan Bank v. Cutler, lii. 509. 
 
 18. Where the proprietor of a certificate of five shares of capital 
 stock indorsed upon it the transfer of the " within share," — using the 
 singular number instead of the plural, — to the defendant, and, upon the 
 certificate of one share, the transfer of the " within shares," — using the 
 plural number instead of the singular ; and the defendant thereafterwards 
 surrendered the certificates and took one for six shares, which he trans- 
 ferred by indorsement and delivery to another without controversy, and 
 no question has been raised between the parties, — Held, that in an action 
 by a creditor of the original proprietor of said shares, against said- de- 
 fendant, for aiding said proprietor in a fraudulent transfer and conceal- 
 ment of his property in said shares, he will not be permitted to deny his 
 own title. Skowhegan Bank v. Cutler, lh. 509. 
 
 19. The law raises no implied promise to pay the president of a bank 
 for his official services ; nor can he recover pay for such services upon a 
 quantum meruit. Holland v. Lewiston F. Bank, lii. 564. 
 
 20. His compensation is to be fixed by the directors ; and is to be 
 such compensation as they think reasonable. Holland y. Bewiston F. 
 Bank, lii. 664. 
 
 21. Whether the directors can make a contract for his services for 
 future years, so long as he should be elected, which shall be binding on 
 their successors, quaere. Holland v. Beioiston F. Bank, lii. 564. 
 
 22. A note taken by a bank, in payment of a pi-e-existing debt, is not 
 discounted within the meaning of the prohibition in E,. S. of 1857, c. 47, 
 § 14. Bime Bock Bank v. Hewett, lii. 531. 
 
 23. By R. S. of 1857, c. 47, §§ 43 and 47, a creditor of a bank who has suf- 
 fered a loss described in § 43, may maintain a bill in equity against those 
 directors through whose ofiicial mismanagement it occurred. Bank Mut. 
 Redemption v. HiU, lvl 385. 
 
 24. Directors are personally responsible for the official mismanagement 
 only which occurred during the year for which they were chosen, and 
 during which they acted. Bank Mat. Redemption v. Hill, lvi. 385. 
 
 25. Directors are personally answerable for ordinary neglect in their 
 official business. Bank Mat. Redemption v. Hill, lvi. 385. 
 
 26. One board of directors cannot be answerable for renewals of 
 worthless paper discounted by a previous board. Bank Mut. Redemp- 
 tion V. Hill, lvi. 385. 
 
 See Equity. Set-off, 6. 
 
54 BANKRUPTCY. BASTAEDY. 
 
 BANKRUPTCY. 
 
 ♦ 
 
 1. A certificate of discharge of a bankrupt will be a discharge of his 
 liabilities to his sureties upon his official bond, when it appears that the 
 debt against the principal and sureties might have been proved under the 
 bankrupt act. Fowler v. JTendall, xliv. 448. 
 
 2. A breach of an official bond subsequent to the filing of a petition 
 to be declared a bankrupt, could not have been proved as. a claim in the 
 proceedings upon such petition. Fowler v. Kendall, xliv. 448. 
 
 3. R S., c. Ill, § 1, providing that "no action shall be brought and 
 maintained upon a special contract or promise to pay a debt from which 
 the debtor has been discharged by proceedings under the bankrupt laws 
 of the United States, or the assignment laws of this State, unless such 
 contract or promise be made or contained in some writing signed by the 
 party chargeably thereby," applies to a suit instituted after the passage 
 of the law, but based on a verbal promise made before its passage. 
 JS/ingley v. Cousins, xlvii. 91. 
 
 4. The assignment of a bankrupt's estate under § 14 of the United 
 States bankrupt act of 1867, does not dissolve an attachment of his es- 
 tate made more than four months prior to the commencement of his pro- 
 ceedings in bankruptcy. Bowman v. Harding, lvi. 569. 
 
 5. When the officer's return shows that an attachment was made more 
 than four months prior to the defendant's commencement of proceedings 
 in bankruptcy, the plaintiff is entitled to a judgment to be satisfied out 
 of the specific property returned upon the writ. Sowman v. Ha/rding, 
 LVI. 559. 
 
 6. The record is conclusive, and it is not competent for him to show 
 ai> extra that the attachment has been dissolved. Sowman v. Sarding, 
 LVI. 559. 
 
 BASTARDY. 
 
 1. Under the Public Laws of 1856, c. 266, the respondent in a bastardy 
 process was made a competent witness in his trial. Murray v. Joyce, 
 
 2. The preliminary conditions required of the complainant by the 
 statute relating to the maintenance of bastard children, are not removed 
 by c. 266 of the Public Laws of 1856. Murray v. Joyce, xliv. 342. 
 
 3._ The second section of c. 266, is limited in its application to such 
 parties as were made witnesses by the first. Murray v. Joyce, xliv. 342. 
 
 4. In a case of a complaint under the bastardy act, where exceptions 
 were taken to the ruling of the judge at the trial, which the full court 
 overruled, and ordered judgment on the verdict, a motion to set aside 
 the verdict against the respondent and grant a new trial on the ground 
 of the discovery of new and material evidence, will not be entertained, 
 though the same be filed before the final proceeding and order are had 
 on the verdict. Dyer v. Huff, xlv. 376. 
 
BELLIGEEENTS. 55 
 
 5. In such a case the respondent, having submitted to the jurisdiction 
 of the court, and tiled a general demurrer, cannot, under his plea, avail 
 himself of defects in the preliminary proceedings before the magistrate. 
 Cooper V. lAttlejield, xlt. 549. 
 
 6. The facts alleged in the complaint and declaration of the complain- 
 ant are admitted by the demurrer ; and if the papers show the allega- 
 tions sufficient, if proved, to entitle the complainant to a judgment of 
 filiation against the respondent, such judgment wiU be ordered. Cooper 
 V. Littlefield, xlt. 549. 
 
 7. The complainant in a bastardy process need not state during travail 
 the time and place, when and where the child was begotten. Totman 
 V. Forsaith, lt. 360. 
 
 8. Since the time when c. 272 of the Public Laws of 1864 went into 
 effect, a complainant in a bastardy suit has been a competent witness to 
 testify to any fact within her knowledge,* essential to her case, without 
 first having shown that, being " put on the discovery of the truth dur- 
 ing the time of her travail, she accused the respondent of being the 
 father of the child." Payne v. Gray, lvi. 317. 
 
 9. But such an accusation is a condition precedent to her right to 
 prosecute the respondent. Payne v. Gfray, lvi. 317. Murray v. Joyce, 
 xLiv. 342. 
 
 10. On a warrant, issued April, 1867, upon a complaint under the bas- 
 tardy statute, and ordering the arrest and return of the respondent be- 
 fore a trial justice, " to find sureties for his appearance at the next term 
 of the S. J. Court to be holden ... on the third Tuesday of Sept., 1867," 
 the respondent was arrested, July, 1868, when he gave bond in due form 
 for his appearance at the Sept. term, 1868, at which term he seasonably 
 filed a motion to quash the proceedings, Held, (1) That the delay be- 
 yond the first term in arresting the respondent did not vitiate the com- 
 plaint and warrant ; (2) That the words, " on the third Tuesday of Sept., 
 1867," may be rejected as surplusage, and leave sufficient in the warrant 
 to authorize the subsequent proceedings ; and (3) The fact that the ar- 
 rest was not made until after the birth of the child did not vitiate the 
 warrant issued before the birth. JLuce v. JBurbanh, lvi. 414. 
 
 BEACH. 
 
 See Deed, 
 
 BELLIGERENTS. 
 
 When a portion of the subjects of the civil government have re- 
 belled, established another government, and resorted to arms to main- 
 tain it, and the rebellion is of such magnitude that the military and 
 
56 BETTERMENTS. BETTING. 
 
 naval forces have been called out to suppress it, the fact that such rebels 
 are robbers on the land, and pirates on the sea, does not preclude them 
 from being regarded as belligerents. Dole v. Merchants M. M. Ins, Co., 
 LI. 465. 
 
 BETTERMENTS. 
 
 1. A tenant in dower, after the termination of the estate, is not en- 
 titled to betterments under Pub. Laws of 1843, c. 6, when he is not the 
 assignee or grantee by deed, of or from the tenant of the life-estate. 
 (R. S., c. 104, § 23.) Bent v. Weeks, xliv. 45. 
 
 2. Where the reversionary interest in lands assigned to a widow as 
 dower, is sold by the administrator by virtue of a license from the pro- 
 bate court, for the payment of the debts of his intestate, the heirs, con- 
 tinuing in possession more than six years, do not hold adversely to the 
 owner of the reversion, nor acquire a right to compensation for better- 
 ments. Bent V. Weeks, xlvi. 524. 
 
 8. Possession of lands, the title of which is in the State, may be such, 
 in its nature and duration, as to entitle the tenants to betterments. Gor 
 ry V. Whitney, xlviii. 516. 
 
 4. Where the tenant claimed betterments, the value of the improve- 
 ments, and also the value of the land without improvements, both at the 
 time of entry and time of trial were ascertained ; and the demandant 
 elected to abandon to the tenant, Held, that the tenant should pay the 
 value of the premises at the time of trial. Cary v. Whitney, l. 322. 
 
 5. The actual possession in § 1, c. 34 of Pub. Laws of 1853 (R. S. of 
 1857, c. 104, § 25), does not differ from that mentioned in R. S. of 1841, 
 c. 145, § 23 (R. S. of 1857, c. 104, § 20), excepting as to the time of its 
 continuance. Peahody v. JETewett, lii. 33. 
 
 See Aebiteation, 8. 
 
 BETTING. 
 
 1. If the plaintiff allege substantially, that on, &c., he bet with de- 
 fendant fifty dollars, that A. B., who was then a candidate for the office 
 of governor of the State, to be voted for by the people at the annual 
 State election, would then be elected by the people ; that the defendant 
 won the bet and received the money; these averments, supported by 
 proof, will bring the plaintiff within the provisions of Public Laws of 
 1841, c. 172 (R. S. of 1857, c." 4). Wormell v. Eustis, xlv. 357. 
 
 2. But if, in the report of the evidence, it neither appears what office 
 it was,_to which the parties bet A. B. would be elected, nor that he was 
 a candidate for that office, the proof fails to establish material averments 
 in the writ. Wormell v. Eustis, xlv. 357. 
 
BIDDEFOKD. BILLS OF EXCHANGE AND PKOMISSORY NOTES. 57 
 
 3. One who had lost by betting on the result of a horse-race, and had 
 demanded his money of the stakeholder, who still held it and refused to 
 restore it to him, may recover the sanie with interest from the date of 
 the demand. House v. McICenney, xlvi. 94. 
 
 4. A. and B. deposited $100 each with C, to be paid to whichever 
 should win in a horse-race. A. won, but B. forbade C. to pay over the 
 stake. A. directed C. to abide the result of a suit by B. for his deposit, 
 and use A.'s deposit to pay the expenses. B. sued and recovered, and 
 C. paid expenses exceeding the amount of A.'s deposit. Held, A. could 
 not claim his deposit of C. Jordan v. McICenney, xlviii. 104. 
 
 BIDDEFORD, CITY OF. 
 
 The act incoi-poratiilg the city of Biddeford confers on the county 
 commissioners power to lay, within that city, any part of any new coun- 
 ty road that shall be laid out by them in any adjoining town, and shall 
 pass into or through the city. Sanson, appellant, li. 193. 
 
 BILLS OF EXCHANGE AND PROMISSORY NOTES. 
 
 I. FOEM, CONSTETJCTION, AND VALIDITY. 
 
 II. NEGOTIABILITY AND TBANSFEE. 
 
 IIL ACCEPTANCE. 
 
 IV. PEESENTMENT, DEMAND, AND NOTICE. 
 
 V. LIABILITIES AND EEMEDIES OF THE DIFFEEENT PAETLES. 
 
 VI. ACTIONS ON BILLS AND NOTES. 
 
 Vn. PLEADINGS AND EVIDENCE. 
 
 FOEM, CONSTEUCTION, AND VALIDITY. 
 
 (a) Generai. eequisites. 
 
 (b) CONSTETTCTIOir. 
 
 (c) CONSIDBEATION. 
 
 (d) "When a discharge of the oeiginai. cause of actioit. 
 
 (e) When not valid. 
 
 (f) Notes patablb in specific articles. 
 
 (a) General requisites. 
 
 1. It is competent for the maker of a promissory note or the drawer of 
 a bill, to make it payable to the order of himself. Smalley v. Wight, 
 XLiT. 442. 
 
 2. No particular form of words is necessary to make a bill or note. 
 Ca/rver v. Hayes, xlvh. 257. 
 
58 BILLS OF EXCHANGE AND PEOMISSORY NOTES. 
 
 3. It is sufficient, if the instrument, fairly construed, contain a prom- 
 ise upon consideration, which, from the time of making it, cannot be com- 
 plied with or performed without the payment of money to the party 
 holding it. Carver v. Hayes, XLvn. 257. 
 
 4. A writing expressed in the following words and signed by the 
 maker, viz. : " Due " A. B., " or order, twenty dollars on demand," coiisti- 
 tutes a negotiable promissory note. Carver v. Hayes, XLvn. 257. 
 
 (b) Construction. 
 
 5. Where one not the payer of a negotiable note signed his name on 
 its back, without date, the presumption of law arises that he so wrote it 
 at the date of the note, or agreed to do so, and did it subsequently, in 
 pursuance of such agreement. Childs v. Wyman, xlit. 433. Jirett v. 
 Marston, xlv. 401. 
 
 6. The words "without recourse" written upon the back of a note, 
 and under the signature of one not the payer, are mere surplusage. 
 Childs V. Wyman, xlit. 433. 
 
 7. If one, not otherwise a party, write his name on the back of the 
 note, the day after its date and execution by the other parties, but in 
 pursuance of an agreement to do so when it was made, he is thereby 
 made an original promisor. Childs v. Wyman, xliv. 433. 
 
 8. A note payable " six after date," is not void for uncertain- 
 ty ; but the intention of the parties, if legally ascertainable, should con- 
 trol in the construction of it. Nichols v. Frothingham, xlv. 220. 
 
 9. Where such a note was given to an insurance company for a policy, 
 and six months are an usual time of credit, if there be nothing in the 
 note to indicate a different time, the law will regard it as payable in six 
 months. Nichols v. Frothingham, xlv. 220. 
 
 10. A note payable "to the order of" L. M., "president of" M. F. & 
 M. Ins. Co., is payable to the company. Nichols v, Frothingham, xlv. 
 220. 
 
 11. The promissory note of a town given for money borrowed, with 
 interest payable semi-annually, the principal « to be redeemable at the 
 pleasure of the town after ten years from date," should not be so con- 
 strued as to give to the town the right to retain the money perpetually. 
 The design and intention of such restriction is to limit the right to pay 
 the note until ten years had expired ; and after the expiration of that 
 time, the payees may legally enforce payment. Chadwich v. Portland, 
 XLTL 44. 
 
 12. Where an accommodation note, payable in one year, was negotia- 
 ted on the day after its date, and the purchaser agreed with the payer 
 in writing on the margin that " the note is to run a year and a day," the 
 time of payment named in the note was not affected by the written 
 memorandum. Tufts v. Shepherd, xlix. 312. 
 
 13. And, even if the memorandum constituted a part of the note, the 
 day of payment, by it, was within the year, and three days of grace, un- 
 til the expiration of which, the note would not be due. Tufts v. Shep- 
 herd, XLIX. 312. "^ 
 
 14. A writing expressed in the following words and signed by the 
 
BILLS OF EXCHANGE AND PROMISSOEY NOTES. 59 
 
 maker, viz., " value received of" E. P., " I promise to pay him or his or- 
 der seven hundred dollars without interest, to be allowed on settlement, 
 no interest to be reckoned," is a promissory note for that sum without 
 interest ; and the last clause is surplusage. Porter v. Porter^ li. 376. 
 
 15. No time of payment being mentioned, it is payable on demand. 
 Porter v. Porter, li. 376. 
 
 (c) Consideration. 
 
 16. A note, not valid against the maker, is not a sufficient considera- 
 tion for a new note given in renewal of the former. Nutter v. Stover, 
 xLviii. 163. 
 
 17. Nor is a note, not valid against the maker, although indorsed by 
 the person on whose account it is held as collateral security, a sufficient 
 consideration for a new note given in renewal of the former. Nutter v. 
 Stover, XLVIII. 168. 
 
 (d) When a discharge of the original cause of action. 
 
 18. When a negotiable note has been given in settlement of an account, 
 and a judgment has been afterwards obtained upon the account and dis- 
 charged, for any valuable consideration, no action can be maintained by 
 the original creditor either upon the note or judgment. Fogg v. San- 
 born, XLVIII. 482. 
 
 19. The acceptance of negotiable paper for a debt, and the giving of 
 a receipt in discharge thereof, are an extinguishment of' the original lia- 
 bility, unless it appears that the parties did not so understand it. Milli- 
 hen V. Whitehonse, xlix. 527. Parkhurst v. Cummings, lti. 155. 
 
 See Payment, 12. 
 
 (e) When not valid. 
 
 20. A note or bill payable to the order of the maker does not become 
 a binding contract, until indorsed by him. Smalley v. Wight, xliv. 
 442. 
 
 21. A note given by an inhabitant of this State for spirituous liquors 
 sold and delivered in another State, where the sale was not illegal, can- 
 not be enforced by the payee who knew the purchaser's intent to sell 
 the liquor purchased in violation of law here, and did acts beyond the 
 mere sale, which aided the purchaser in his unlawful design. Banchor 
 V. Mansel, xlvil 58. 
 
 22. The payment of a promissory note given in 1857, for intoxicating 
 liquors, sold by the licensing board of a town, to a person by them 
 licensed to sell in the town, being authorized by § 1, c. 255, of the Pub- 
 lic Laws of 1856, cannot be legally enforced. Webster v. Sanborn, xLvn. 
 471. 
 
 23. Nor does the fact that the parties supposed they were acting in 
 accordance with the provisions of the law, change or affect the legal 
 rights of the parties. Webster v. Sanborn, xlvii. 471. 
 
60 BILLS OF EXCHANGE AND PROMISSORY NOTES. 
 
 (f ) Notes payable in specific articles. 
 
 24. A contract payable in cash or specific articles on demand is the 
 evidence of a promise in the alternative; and a demand of payment, be- 
 fore suit is brought, is necessary, that the maker may elect the mode of 
 payment. Stevens v. Adams^ xlv. 611. 
 
 25. If the maker of a note, payable in part in specific articles, express- 
 ly promise to pay its contents to the assignee of the same, the latter may 
 maintain an action in his own name. Farnum v. Virgin, ui. 576. 
 
 n. NEGOTIABILITY AND TEANSFBK. 
 
 26. A note or bill payable to the order of the maker, cannot be nego- 
 tiated in the first instance except by the payer or his legal representa- 
 tive. Smalley v. Wight, xliv. 442. 
 
 27. The negotiability of paper payable to order, is not recognized by 
 the common law, but depends entirely upon the custom of merchants, 
 which requires that the assignment be made by a writing on the paper 
 directing the contents to be paid to some third person. Smalley v. 
 Wight, XLIV. 442. 
 
 28. A note payable "to the order of" L. M., "president of" M. F. 
 Ins. Co., is payable to the company; and the indorsement by L. M., as 
 president, etc., will be a sufficient transfer of it, in the absence of all 
 proof that he was unauthorized to negotiate and indorse it. Nichols v. 
 Frothingham, xlv. 220. 
 
 29. The R. S. of 1841, c. 175, § 1, requiring notes taken for. fines and 
 costs, to be made payable to the county treasurer, confers no authority 
 upon him to indorse and transfer them to another individual. Bates v. 
 Butler, XL VI. 387. 
 
 30. Neither does the statute require them to be made negotiable. 
 Bates V. Butler, xlvi. 387. 
 
 31. In an insurance company conducted by the president, vice-presi- 
 dent, and secretary, subject to the direction of the trustees, the secretary 
 being empowered verbally by the president and vice-president, with the 
 knowledge of the trustees, to indorse the premium notes of the compa- 
 ny, is thereby authorized to transfer the title of a note indorsed by him 
 as secretary. Leary y. Blanchard, XLvni. 269. Cabot v. Given, xlv. 
 144. Batten v. Moses, xlix. 255. 
 
 32. An indorsement of a promissory note payable to an insurance com- 
 pany, by one who has been their president, and who acts as such in 
 making the indorsement, passes the title to the indorsee, especially when 
 the company receives and converts to its lise the avails of the note. 
 Batten v. Moses, xlix. 255. Brown v. Bonnell, xlix. 421. 
 
 33. The president of an insurance company may have authority to 
 transfer a note by indorsement, and still no authority to bind the com- 
 pany as indorser. Brown v. Bonndl, xlix. 421. 
 
 34. K the first indorser of a promissory note acquire a right of action 
 as against the maker, by being a bona fide purchaser without notice and' 
 before maturity, he can transfer a good title as well after as before the 
 note becomes due. Woodman v. Churchill, m. 58. 
 
 35. A negotiable promissory note, made payable " to the order of A. 
 
BILLS OF EXCHANGE AND PKOMISSOKY NOTES. 61 
 
 J. Lynn and W. Perkins," and indorsed " Lynn & Perkins," written by 
 one of the payees, with the sanction and approval of the other, is a suffi- 
 cient indorsement, although there was no such firm as " Lynn & Perkins." 
 Cooper V. Bailey^ lii. 230. 
 
 36. When a negotiable prbmissory note bears on its back the names 
 of a payee and another person, the former above the latter, the presump- 
 tion is, in the absence of all controlling proof, that the payee indorsed it 
 to the one whose "name is under his and the latter to some third party. 
 Sturtevant v. Randall, liii. 149. 
 
 37. The contract implied, from one's placing his name in blank on the 
 back of a negotiable promissory note, is not a written contract so far 
 complete in itself as to exclude parol evidence to show his connection 
 with the note. Sturtevant v. Randall, liii. 149. Smith v. Morrill, liv. 
 48. 
 
 88. A note payable to an insurance company or order for a sum speci- 
 fied, " and such additional premium as may become due on " a policy 
 named, and at a time therein specified, is not negotiable. Marrett v. 
 Equitable Ins. Co., lit. 537. 
 
 in. ACCBPTAKCE. 
 
 39. If one refuses to accept an order, but writes upon it at the same 
 time what may fairly be understood as an acceptance, he will be bound 
 by it against a bona fide holder as though he intended to accept it. 
 GaUagher v. Black, xliv. 99. 
 
 40. In the absence of evidence as to when or how the plaintifi"obtained 
 the order, where the acceptance would have been ineffectual in the hands 
 of the original payee, he must prove that he became the owner at the 
 date of the acceptance, and for a valuable consideration. Gallagher v. 
 Black, xliv. 99. 
 
 41. The liability of an accepter of bill of exchange arises from, and is 
 limited by, the terms of his acceptance ; and as the language of such ac- 
 ceptance is his own, it is to be taken most strongly against him. Syl- 
 vester V. Staples, XLIV. 496. 
 
 42. By his acceptance, the drawer, as between him and the payee, is 
 to be regarded as the maker of a promissory note running to the payee. 
 Sylvester v. Staples, xliv. 496. 
 
 43. " I accept the written order, to pay when due," written and signed 
 on the back of an order, is an unconditional acceptance except as to time, 
 and is a promise to pay when the order is due. Sylvester v. Staples, 
 XLIV. 496. 
 
 IV. PEESENTMBNT, DEMAND, AND NOTICE, 
 (a) When necbssaet, and idektitt. 
 (t.) By whom and when to be made. 
 
 (c) At what time and place. 
 
 (d) Waiveb and modification of, by ageeembnt oe trsAGE. 
 
 (e) Protest. 
 
 (a) When necessary, and identity. 
 
 44. A note payable in cash or specific articles on demand, must be de- 
 manded before suit. Stevens v. Adams, xlt. 611. 
 
62 BILLS OF EXCHANGE. AND PROMISSOEY NOTES. 
 
 45. Soon after the usual business hours of a bank, but before its officers 
 had left, a notary public, at the request of the cashier, presented a note 
 then due on that day, to pay which no funds had been provided by the 
 maker, and demanded its payment, which being refused, the note was 
 protested. Held, that the demand was well made to charge the indorsers. 
 Allen V. Avery, xltii. 287. 
 
 46. If the notice to the indorser of the dishonor of a bill is such that 
 he must know what bill is referred to, it is sufficient to charge him. 
 Wood V. Watson, liu. 300. 
 
 (b) By whom and when to he made. 
 
 47. A note indorsed and delivered when overdue, is to be treated, as 
 between indorser and indorsee, as a note on demand, dated at the time 
 of the transfer, so far as demand and notice are concerned. Goodwin v. 
 Davenport, XLYU. 112. 
 
 48. What is a "reasonable time " in which to demand payment, is to 
 be determined by the circumstances of the case. Goodwin v. Davenport, 
 
 XL VII. 112. 
 
 49. When a note overdue was transferred the twentieth day of Sep- 
 tember, and demand made and notice given on the thirteenth day of 
 October following, it was within a reasonable time. Goodwin v. Daven- 
 port, XL VII. 112. 
 
 (c) At what time and place. 
 
 50. A note payable in Boston, was there protested for non-payment ; 
 the indorsers resided in this State, and a notice of its dishonor to the 
 first indorser was transmitted to the second, who forwarded the same, 
 properly directed, by the earliest mail of the next day. Held, reasona- 
 ble, as each indorser of a note is entitled to one day to notify his preced- 
 ing indorser. Allen v. Avery, xlvii. 287. 
 
 51. If a note be made payable at either bank in a city, where there 
 are numerous banks, the holder may present it at either, without notice 
 to the maker at which he will demand payment. Allen v. Avery, XLvn. 
 
 287. 
 
 52. To charge the indorser of a note payable at a bank, it must be 
 shown that the note was at the bank, or payment of it was demanded 
 there on the day when it became due. Magoun v. Walker, xlix. 419. 
 
 53. It is not sufficient to show by the notary's certificate that pay- 
 ment was demanded of the cashier of the bank at the proper time. JMa- 
 gou7i V. Walker, xlix. 419. 
 
 (d) Waiver and modification of, by agreement or usage. 
 
 54. Where a bank has established an usage of notifying, through the 
 post-office, indorsers of dishonored paper resident in the town where the 
 bank is situated, a notice, properly addressed and deposited in the post- 
 office on the day a note matures, will be sufficient to indorsers conver- 
 sant of such usage, and on notes made payable at such bank. Lime Bock 
 Bank v. Hewett, lh, 51. 
 
BILLS OF EXCHANGE AND PROMISSOKY NOTES. 63 
 
 55. Aliter, as to indorsers conusant of the usage, on notes not made 
 payable at such bank. Ziime Hock Bank v. Hewett, lii. 51. 
 
 56. What facts will amount to a waiver of demand and notice. Bob- 
 bins V. Vbse, Lm. 36. Keyes v. Winter, lit. 399. 
 
 57. The facts may be proved by parol. Bollins v. Vose, liii. 36. 
 Keyes v. Winter, lit. 399. 
 
 58. The defendant applying to the plaintiff for a loan of money, was 
 informed by the latter that if he would get, and indorse in blank, the de- 
 fendant's brother's note, and give his word upon honor that, if his broth- 
 er did not pay it he would, he would loan him the money. The de- 
 fendant replied he was willing to give his word, and that he expected 
 to be holden, if he got the money, adding, that he desired the plaintiff to 
 wait as long as he could for his pay, and, if his brother did not pay, he 
 (defendant) would. Held, there was a waiver of demand and notice. 
 Keyes v. Winter, liv. 399. 
 
 59. Chapter 152 of the PubUc Laws of 1868, providing that waivers 
 of demand and notice, by an indorser of notes and bills, shall be in writ- 
 ing and signed, in order to be valid, is prospective in its operation. 
 Thomas v. Mayo, lvi. 40. 
 
 (e) Protest. 
 
 60. The notarial protest of a bill of exchange or promissory note, duly 
 certified, is legal and sufficient evidence prima facie of the facts there- 
 in stated. Public Laws, 1858, c. 44, § 7. Loud v. Merrill, xlv. 516. 
 Williams v. Smith, xlviii. 135. Orono Bank v. Wood, xlix. 26. Pat- 
 tee V. Mc Grillis, liii. 410. 
 
 61. In an action upon a promissory note payable in another State, by an 
 indorsee against an indorser, no damages for protest are allowed, as upon 
 bills of exchange. Loud v. Merrill, xlvii. 351. 
 
 62. A notarial protest which states that the^notary "made notices to 
 all the indorsers," which he " caused to be left at their dwelling-houses," 
 is not sufficient evidence of notice to charge indorsers. Union Bank v. 
 Humphreys, XLVin. 172. Union Bank v. Stone, xlviii. 172. 
 
 63. Where a draft drawn on a firm in Philadelphia was protested for 
 non-acceptance, the certificate of the notary that he had " duly notified 
 the drawer and indorser " (citizens of this State), is, by the law of the 
 State of Pennsylvania where the draft was payable, evidence of the facts 
 stated by the notary, and, in the absence of contradictory proof, sufficient 
 to charge the indorser. Orono Bank v. Wood, xlix. 26. 
 
 64. If a notarial certificate, after stating the date, his official character, 
 demand and refusal, recite that " the draft remaining unpaid, I duly and 
 officially notified the drawer at " his post-office address, naming it, " per 
 mail, requiring payment," it is prima facie evidence of notice. Pattee 
 V. Mc Grillis, mi. 410. 
 
 V. LIABILITIES AND BEMEDIES OP THE DIFFEEENT PAETIES. 
 
 65. Where one, not otherwise a party to a promissory note, at its in- 
 ception, signed his name upon the back under the words " holden on the 
 
64 BILLS OF EXCHANGE AND PKOMISSORY NOTES. 
 
 within," he will be holden as a joint promisor, although his name be 
 subsequently stricken off by mistake. Brett v. Marston, xlt. 401. 
 
 66. The fact that a note was indorsed before it was due, and years be- 
 fore the transfer, and merely for the purpose of enabling an agent to ne- 
 gotiate or collect it, and not with the intent of being holden as indorser, 
 cannot affect the rights of the party to whom it was subsequently sold 
 and delivered. As between him and the indorser, the indorsement must 
 be deemed to have been made at the time of the delivery. Goodwin v. 
 Davenport, xlth. 112. 
 
 67. And although the indorser did not understand the legal effect of 
 his acts, he is nevertheless bound by them. Goodwin v. Davenport, xxvii. 
 112. 
 
 68. A notice to an indorser, of the dishonor of a note, is sufficient if it 
 describe the note with reasonable certainty, though the description may 
 not be strictly accurate. Williams v. Smith, XLvni. 135. 
 
 69. An agreement to pay more than the legal rate of interest for de- 
 lay, does not discharge an indorser. Williams v. Smith, xlviii. 135. 
 
 70. In order to discharge an indorser for granting delay to a maker, 
 there must be such a valid agreement as would bar the holder from main- 
 taining an action upon the note during the time covered by the agreement. 
 
 Williams v. Smith, xlyiii. 135. 
 
 71. One, who receives a note merely as collateral security for a pre- 
 existing debt, cannot be regarded as a holder for a valuable consideration. 
 Nutter v. Stover, xlviii. 163. 
 
 72. If one partner indorse with his whole name a note given to his 
 firm after its dissolution, be is liable thereon in an action by the indorsee. 
 iMrnbermarC s Bank v. Pratt, li. 563. 
 
 73. The plaintiff, as indorser, paid a note after suit brought thereon by 
 the indorsee against the makers, in which the makers obtained a verdict 
 and judgment in their favor, on the ground that, before the negotiation 
 of the note, the time of payment had been extended without the consent 
 of the sureties. Held, that the plaintiff acquired no right of action 
 against the maker and sureties for the money so paid ; and that the sure- 
 ties were discharged by the verdict in their favor as against the plaintiff. 
 Durham v. Giles, lii. 206. 
 
 74. When a judgment is recovered upon a negotiable promissory note 
 after indorsement, in the name and with the consent of a nominal party, 
 without interest, the judgment creditor is merely the trustee of the equi- 
 table owner, and cannot control the judgment to the prejudice of his 
 cestui que. trust, or to the oppression or injury of the debtor. Pratt v. 
 Dow, Lvi. 81. 
 
 75. And paynient of such judgment to the satisfaction of the equitable 
 owners thereof is a good defense to an action thereon, although some of 
 the judgment debtors are the cestuis que trust for whose benefit the orig- 
 inal suit was instituted. Pratt v. Dow, lvi. 81. 
 
 See Pbacticb, 74, 75, 76. Sbt-opf, 6. State Tebas., 1. 
 
BILLS OF EXCHANGE AND PROMISSORY NOTES. 65 
 
 VI. ACTIONS ON BILLS AND NOTES. 
 
 (a) "When, and by ■whom an action is maintainable. 
 
 (b) When subject to equities between otheb paeties. 
 
 (c) Defences. 
 
 (a) When, and hy lohom an action is maintainable. 
 
 76. The indorser of a bill of exchange, that has been protested for 
 non-payment, cannot legally institute a suit thereon, in his own name, 
 against the acceptor, before he has paid the same to the holder, although 
 he has admitted his liability and agreed on the mode in which he would 
 pay it. Longfellow v. Andrews, xlv. 75. 
 
 77. A county treasurer, having received under R. S. of 1841, c. 175, 
 certain negotiable promissory notes for fines and costs, payable to him 
 or order, indorsed them to the plaintifi", without recourse, agreeing that 
 the plaintiff should have a per centage of what he might collect. Held, 
 that such indorsement and. agreement were not contemplated by the 
 statute, and that the plaintiff had no authority to sue said notes in his 
 own name. Bates v. Butler, xlvi. 387. 
 
 78. If one receives the note of another, agreeing to indorse it, get it 
 discounted, and apply the proceeds to the payment of another note, but 
 fails to do so, the former has no such property in the note thus received, 
 as will enable him to sue the maker. Nutter v. Stover, XLVin. 163. 
 
 79. The holder of a promissory note, taken in the ordinary course of 
 business, for value, before its maturity, and without notice of any defect 
 in the title, or right of the person transferring it, may collect it of the 
 maker, although the original holder had obtained it wrongfully, or held 
 it in trust for a specific purpose for the benefit of the maker, or for any 
 other cause had no legal right, as against the maker, to transfer it. Nut- 
 ter v. Stover, xLvin. 163. 
 
 80. A suit, commenced upon a promissory note on the last day of 
 grace, is premature, unless a demand be made, or unless the note be pay- 
 able at a bank, and the suit be commenced after banking hours. And 
 the insolvency of the maker will not abridge the day of payment. Van- 
 desande v. Chapman, xlviii. 262. 
 
 81. An owner of a promissory note, indorsed in blank, may maintain 
 an action thereon in the name of a third person, by his consent. Patten 
 V. Moses, xLix. 255. Demuth v. Gutlef, l. 298. 
 
 82. An order written thus : — " value received, pay to A. B. forty dol- 
 lars and charge same against whatever amount may be due me, for my 
 share of fish caught on board schooner Star," is an order for the pay- 
 ment of that sum absolutely, is not limited to the proceeds of the draw- 
 er's share, and an action can be maintained thereon in the name of an 
 indorsee. Redman v. Adams, li. 429. 
 
 83. When a person, other than a regular party to a note voluntarily 
 pays it for the honor or credit of any indorser without request, he does 
 not thereby acquire a right to repayment from any of the prior parties 
 thereto. Smith v. Sawyer, lv. 139. 
 
 See Assignment, 16. 
 
 5 
 
66 BILLS OF EXCHANGE AND PEOMISSOEY NOTfie. 
 
 (b) 'When suiject to equities between other parties. 
 
 84. The rule, that the innocent indorsee of negotiable paper, before 
 maturity, without notice and for value, holds it unaffected by any equit- 
 able consideration as between the antecedent parties, is limited to such 
 paper as has been indorsed in the regular course of trade. Billings v. 
 Collins, xLiv. 271. Nutter v. Stover, xlviii. 163. 
 
 85. Assignments of negotiable paper by operation of a bankrupt law 
 of the United States, or of an insolvent, or an assignment law of the 
 State, cannot be regarded as made in the regular course of trade. JBil- 
 lings V. Collins, xliv. 271. 
 
 86. Where the plaintiff, as agent of the payee, took a note on demand, 
 and afterwards purchased it, but it was not indorsed till more than four 
 months after its date, it was held to be dishonored so as to let in any 
 equitable defense to the note. Parker v. Tuttle, xliv. 459. 
 
 87. And if the maker disclosed no defense to the agent when he gave 
 the note, or at the same time promised to pay a portion of it at a future 
 time, he is not thereby estopped to set up an existing defense to the 
 same. Parker v. Tuttle, xliv. 459. 
 
 88. Whenever one having no interest in a note becomes a party to it, 
 at the request and for the accommodation of another, the relation of 
 principal and surety exists ; and the original holder, between whom and 
 the principal the consideration passed, is presumed to have knowledge of 
 the face. And if such note is transferred after it is dishonored, the in- 
 dorsee has implied notice of the fact ; and he takes the note subject to 
 the equities existing between the original parties. Cummings v. Little, 
 XLV. 183. 
 
 89. A promissory note, payable on demand, and which was negotiated 
 within thirty days after its date, to a bona fide purchaser, will not be 
 considered ovei'due and dishonored, so as to subject the indorsee to any 
 equities existing between the original parties thereto. Dennen v. Haskell, 
 XLV. 430. 
 
 90. When an agent takes a note for his principal, payable to himself, 
 and then transfers it to his principal, such principal stands in the posi- 
 tion of an original holder, and the note in his hands is subject to what- 
 ever defenses might have been made to it in the hands of the agent. 
 Hutchinson v. Hutchinson, xlvi. 154. 
 
 91. A parol contract to support one during life, is not within the stat- 
 ute of frauds; and is a sufficient* consideration for a deed of real estate. 
 And, if the grantee in such a deed gives his promissory notes for the 
 value of the property, to be held as collateral security for the perform- 
 ance of his contract, he is not liable upon the notes, except to an inno- 
 cent purchaser for a valuable consideration, unless he fails to perform. 
 Hutchinson v. Hutchinson, xlvi. 154. 
 
 92. A note indorsed by the payee, " Pay to A. for account " of the 
 payee, is open to the same defenses in the hands of A., as it would be in 
 the hands of the payee. Leary v. Blanchard, xlviii. 269. 
 
 93. If the first indorsee of a promissory note acquire a right of action 
 as against the maker, by being a bona fide purchaser without notice and 
 before maturity, he can transfer a good title as well after as before the 
 note becomes due. Woodman v. Churchill, lil 58. 
 
BILLS or EXCHANGE AND PROMISSORY NOTES. 67 
 
 94. A second indorsee succeeds to the rights of a first bona fide in- 
 dorsee ; and, whethee the former is conusant of the original invalidity of 
 the note from fraud in its inception, or from want of consideration, or 
 whether he took it after its maturity or not, are immaterial inquiries. 
 
 Woodman v. Churchill, lii. 58. 
 
 95. An assignment and delivery of a negotiable promissory note before 
 maturity, without the indorsement of the payee, gives to the assignor 
 only the rights of the payee. Haskell v. Mitchell, liii. 468. 
 
 96. And a contemporaneous promise by the payee to indorse, if not 
 complied with until after maturity, will not avoid the defense of a want 
 of consideration in the inception of the note. SasJeell v. Mitchell, liii. 
 468. ■ '• 
 
 (c) Defences. 
 
 97. An executory agreement with reference to the payment of a note, 
 constitutes no bar to a suit upon the same. Gushing y.Wyman, xliv, 
 
 98. A plea of accord can be sustained only by proving an accord not 
 executory, but which ought to be, and which has been executed before 
 the commencement of the action. Cushing v. Wyman, xliv. 121. 
 
 99. To enable a party to set up the defense of payrnent, there must be 
 the concurring intention of the party making and the party receiving 
 the p.iyment. The payment must be received as well as made in satis- 
 faction of the debt. Cushing y. Wyman, ■KUN.Vll. .. 
 
 100. An agreement to transfer a note, to be credited on account of 
 goods sold, when payable according to its conditions, is neither payment 
 or extinguishment of the note ; and if, at its maturity, there was due for 
 the goods a sum exceeding the amount of the note, that would constitute 
 no bar to a recovery upon it, where it had been before that time 
 transferred for a full and adequate consideration, without notice. Gush- 
 ing V. Wyman, xliv. 121. 
 
 101. Where the name of one, not otherwise a party, written on the 
 back of a note, at its inception, under the words "holden on the with- 
 in," is erased by mistake, the erasure will not discharge him. Brett v. 
 Marston, xlv. 401. 
 
 102. A nonsuit entered in an action upon a note, will be no bar to a 
 second suit upon the same note, unless it appear that such entry was a 
 decision upon the validity of the note. Jirett v. Marston, xlv. 401. 
 
 103. If an officer of an insurance company transfers a promissory note 
 in violation of law, whether the maker (the company or its creditors in- 
 terpysing no claim to the note), can plead such illegal transfer in defense, 
 unless he be a creditor of the company, quaere. Litchfield v. JDyer, xlvi. 
 oX. 
 
 104. But if the payer of such note is himself a creditor of the com- 
 pany, he may contest the legality of such transfer, in order to avail him- 
 self, by way of set-ofi", of the existing equities between himself and the 
 company. Litchfield v. Dyer, xlvi. 31. 
 
 105. When notes are taken for fines and costs, as provided by R. S. of 
 1841, c. 176, if not paid voluntarily, they must be collected, wholly or 
 partially, or canceled, in the manner provided in c. 152, §§ 28, 29, and 30. 
 Bates V. Butler, xlvi. 387. 
 
68 BILLS OF EXCHANGE AND PKOMISSOEY NOTES. 
 
 106. A county treasurer received such notes payable to him or order, 
 and indorsed them to the plaintiff, without recourse, agreeing that the 
 plaintiff should have a percentage of what he might collect. Held, that the 
 plaintiff could not sue them in his own name. Bates v. BuUer, xlvi. 
 387. 
 
 107. If a note is given by one in prison under R. S. of 1841, c. 175, to 
 procure his discharge, it is not given under duress, and hence cannot be 
 avoided on that plea. Bates v. Butler, xlvi. 387. 
 
 108. It is citizenship, and not the place of making or of performance, 
 that determines the legal rights of parties to notes. Felch v. Bugbee, 
 
 XL VIII. 9. 
 
 109. The indorsement of a negotiable note is a new contract between 
 the parties; and, where such a note, made in Massachusetts, was payable 
 to another citizen of that State, " at any bank in Boston," and was in- 
 dorsed by him to a citizen in Maine, before maturity and prior to pro- 
 ceedings in insolvency, the rights of such indorsee are not affected by a 
 discharge of the maker in Massachusetts under the insolvent laws of that 
 State. Felch v. Bugbee, xlviil 9. Chase v. Flagg, xlviii. 182. 
 
 110. In order to let in a defense of a defect in a note, express notice is 
 not indispensable ; it is sufficient, if the circumstances are of such a char- 
 acter as necessarily to cast a shade upon the transaction and put the 
 purchaser on inquiry. Nutter v. Stover, xlviii. 163. 
 
 111. A promissory note given by A. to B., and by B. indorsed to a 
 third party, constitutes a contingent indebtedness from A. to B., so long 
 as B.'s liability continues thereon. IVeat v. Gilmore, xlix. 34. 
 
 112. A verbal promise made to the maker by the holder of a note, to 
 surrender it in payment of an account the maker had against a third 
 person and for which the holder was liable, will not, unless it is executed, 
 affect the note as payment. Noble v. Edes, li. 34. 
 
 lis. As between the immediate parties to a promissory note given for 
 the right of selling patent sewing machines, it is no defense that the 
 payee agreed, in part consideration of the note, to furnish the maker ma- 
 chines as fast as wanted, and that the maker, having numerous and 
 urgent calls for machines, repeatedly sent orders to the payee for them 
 but received none, and the maker was thereby damaged, unless it be 
 also proved that either the pay accompanied the orders, or that the 
 payee was to furnish the machines on credit. Iferrilly. Stanwood, m. 65. 
 
 114. Any alteration which changes the legal effect of a written instru- 
 ment, either in its terms or its parties, or as an instrument of evidence, 
 is material ; and, if made by the holder, without the consent of the maker, 
 will invalidate it. Ohadviick v. Eastman, liii. 12. Lee v. Starbird, lv. 
 491. 
 
 115. Where a promissory note, given for a partnership debt, uses the 
 following words, " we, or either of us, promise jointly and severally to 
 pay," &c., and signed by one of the partners only; and, subsequently, 
 and without the knowledge of either of the defendants, the payee altered 
 the note by inserting immediately after the signature, the words " for E. 
 & W. E. " — the names of the firm, Held, such alteration was material 
 and would avail both defendants. Chadwick v. Eastman, liii. 12. 
 
 116. A person will be barred by his adoption of a signature, if made 
 with a knowledge that it was a forgery. Casco Bank v. Keene,ijiJi. 103. 
 
BILLS OF EXCHANGE AND PROMISSORY NOTES. 69 
 
 117. Where the indorsee of a witnessed note given in Maine, sued 
 the present defendant as maker in Massachusetts, whither the latter 
 had moved ; and the defendant, after pleading payment and the stat- 
 ute of limitations, obtained a general verdict in his favor ; and, subse- 
 quently, the present plaintiff, as payee, brought this'action against the 
 defendant — he having previously moved back to Maine, Held, that the 
 action could not be maintained ; and that evidence that the statute of 
 limitations was the only issue tried in the former action, was inadmissible. 
 Smeet v. BracMey, liii. 346. 
 
 118. Where one of several signers makes a partial payment of their 
 note and causes it to be indorsed thereon that the payment was made by 
 him, by name, and the holder of the note relying on such payment, per- 
 mits the note to outlaw as to the other makers, the defendant will not be 
 permitted to repudiate the payment as his own, and say it was done for 
 another. Tainter v. Winter, Lni. 348. 
 
 119. When a person, other than a regular party to a note voluntarily 
 pays it for the honor or credit of any indorser without request, he does 
 not, thereby, acquire a right to repayment from any of the prior parties 
 thereto. Smith v. Sawyer, lv. 139. 
 
 120. If the payee of a note payable "on demand and interest" adds 
 to it the words " at nine per cent.," after its execution and delivery, and 
 without the consent of the maker, it thereby becomes materially altered 
 as an instrument of evidence, and therefore void. JLee v. Starbird, lv. 
 491. 
 
 121. No one but the payee or his personal representative can main- 
 tain an action upon an unindorsed negotiable promissory note. Brown 
 V. Nburse, lv. 230. 
 
 122. The statute of limitations is no bar to an action in this State, up- 
 on a promissory note made in another State, when the defendant has not 
 resided here since the note was given. Brown v. Nourse, lv. 230. 
 
 123. Where a judgment is recovered upon a negotiable promissory 
 note after indorsement, in the name and with the consent of a nominal 
 party without interest, the judgment creditor is merely the trustee of the 
 equitable owner, and cannot control the judgment to the prejudice 
 of his cestui que trust, or to the oppression or injury of the debtor. 
 Pratt V. Bow, lvi. 81. 
 
 124. And payment of such a judgment to the satisfaction of the equi- 
 table owners thereof is a good defense to an action thereon, although 
 some of the judgment debtors are the cestuis que trust for whose benefit 
 the original suit was instituted. Pratt v. Bow, lvi. 81. 
 
 See Action, 17. Practice, 78, 79. Estoppel, 24, 36. Judgment, 40. 
 
 VU. PLEADINGS AND EVIDENCE. 
 
 125. Parol evidence is admissible to explain an acceptance ambiguous 
 on its face. Gallagher v. Black, xliv. 99. 
 
 126. In the absence of evidence as to when or how the plaintiff ob- 
 tained an order, where the acceptance would have been ineffectual in the 
 hands of the original payee, he must prove that he became the owner at 
 the date of the acceptance, and for a valuable consideration. Gallagher 
 V. BlacJc, xliv. 99. 
 
70 BILLS OF EXCHANGE AND PEOMISSORY NOTES. 
 
 127. In an action upon a note the proof should show the existence of 
 a note corresponding to the one set forth in the declaration, or there will 
 be a fatal variance. Perkins v. Cushman, xliv. 484. 
 
 128. In a declaration upon a lost note, it is necessary not only to set 
 out the substance of the whole note, but to prove the same as alleged; 
 and it is not enough to show that a note was once given and payable 
 either on demand or on time. Perkins v. Cushman, xliv. 484. 
 
 129. Parol evidence is not admissible to vary, alter,_or control the 
 meaning of an acceptance, when the language is intelligible. Sylvester 
 V. Staples, XLIV. 496. 
 
 130. In a suit by an indorsee against the maker of a promissory note, 
 payable to an insurance company, and indorsed and transferred for the 
 company by the president, parol evidence that he was acting president, 
 at the time of the indorsement, is admissible and sufficient, without pro- 
 ducing the records of the company. Cabot v. Given, xlv. 144. 
 
 131. And, in such suit, between other parties, proof of the handwrit- 
 ing of such president is sufficient evidence of the indorsement and trans- 
 fer of the note to the plaintiif, without evidence that he had special au- 
 thority for that purpose. Cabot v. Given, xlv. 144. 
 
 132. Where two persons signed a note as sureties for a third, and the 
 holder, having collateral security from the principal, of less value than 
 the amount of the note, surrendered it to him, without the assent of the 
 sureties, the principal is still liable for the whole note, and the sureties 
 for the excess above the value of the security surrendered. But if they 
 all be sued in one action, being liable for different sums, the plaintiff 
 cannot recover against them. Gummings v. Little, xlv. 183. 
 
 133. The notarial protest of a bill of exchange or promissory note, duly 
 certified, is legal and sufficient evidence of the facts therein stated. Loud 
 y. Merrill, xlv. 516. Williarns v. Smith, xlviii. 135. 
 
 134. In an action against an indorser of a note, it is not necessary for 
 the plaintiff to prove that the defendant actually received the notice of 
 non-payment. It is sufficient if it appears that the letter, containing the 
 notice, was properly directed, seasonably mailed, and the postage paid. 
 Loud V. Merrill, xlv. 516. 
 
 135. And where these facts appear, the plaintiff is entitled to recover, 
 though the defendant prove that the only notice he received was insuffi- 
 cient. Loud V. Merrill, xlv. 516. 
 
 136. A note payable in cash or specific articles on demand, is the evi- 
 dence of a promise in the alternative; and a demand of payment, before 
 suit is brought, is necessary, that the maker may elect the mode of pay- 
 ment. Stevens v. Adams, xlv. 611. 
 
 . 137. Where one had given his note, and placed thereto the name of 
 another person as a joint promiser, who defended a suit against him, 
 brought upon the note, on the ground that his name was put thereon 
 without authority, evidence is admissible which tends to show that the 
 defendant, after he had knowledge of the existence of the note, took from 
 the party who had signed his name, security against general liabilities. 
 Forsyth v. Day, xlvi. 176. 
 
 138. Evidence that a note was indorsed before it was due, and years 
 before the transfer, and merely for the purpose of enabling an agent to 
 negotiate or collect it, and not with the intent of being holden as indorse 
 
BILLS OF EXCHANGE AND PROMISSOEY NOTES. 71 
 
 er, cannot affect the rights of the party to whom it was subsequently- 
 sold and delivered. Goodwin v. Davenport, xlvii. 112. 
 
 139. Evidence that the parties to the transfer agreed, at the time of 
 the transfer, that the indorser should not be personally liable on the note, 
 is inadmissible as contradicting or varying the written contract. Good- 
 win V. Davenport, xlvii. 112. 
 
 140. Where the parties to a promissory note agreed, at the time it was 
 given, that a third person should determine whether or not there was 
 any consideration for the note, a letter from such person, written before, 
 but received after the making of the note, is not admissible in action up- 
 on the note, although the letter really decides the real question which 
 was agreed should thus be determined. Littlefield v. Cwriis, xlviii. 64. 
 
 141. Where a promissory note is indorsed by the payee and others, in 
 the usual manner, parol evidence is not admissible to show that the in- 
 dorsement by the others was a joint indorsement. Williams v. Smith, 
 xlviii. 135. 
 
 142. Declarations of the maker of a note given for an old one, made 
 when the note was made, are not admissible to affect his legal liability 
 on the note ; but are admissible to show whether the new note is en- 
 tirely a new contract, or an extension of the old one. Nutter v. Stover, 
 XLVIII. 163. 
 
 143. A notarial protest stating that the notaiy "made notices to all 
 the indorsers," which he " caused to be left at their dwelling-houses," is 
 not sufficient evidence of notice to charge the indorsers of a promissory 
 note. Union Bank v. Sumphreys, xlviii. 172. 
 
 144. As between the original parties, evidence is admissible to show 
 when a note was in fact signed and delivered, whatever may be its ap- 
 parent date. J3ank of Cumberland v. Mayherry, xlviii. 198. 
 
 145. In an action by an indorser against the maker of a promissory 
 note, indorsed by the payee " pay to A. for account " of the payee, parol 
 evidence is inadmissible to show that the transfer was absolute. Leary 
 V. JBlanctiard, xlviii. 269. 
 
 146. To hold an indorser, the burden is upon the plaintiff to show 
 that all the necessary steps were taken. Magoun v. Walker, xlix. 419. 
 
 147. In an action by the indorsee against the maker of a promissoiy 
 note, the plaintiff is only required to prove an indorsement sufficient to 
 pass the property in the note. Brown v. Donnell, xlix. 421. 
 
 148. In an action by the indorsee against the maker of a note, given 
 to an insurance company, and by them transferred in payment for bank- 
 stock, purchased by them, the defendant cannot controvert the right of 
 the company to purchase the stock. Brown v. Donnell, xlix. 421. 
 
 149. The defendant accepted an order for the payment of a specific 
 sum " when he sold " certain " wharf logs." Three years after its accept- 
 ance, he was sued upon the order and was permitted to show his inability 
 to effect a sale of the logs, notwithstanding he had used all common and 
 ordinary means to do so. Wilder v. Sprague, l. 354. 
 
 150. Where a notary public testified that, at the maturity of a note, 
 after making due demand, he prepared notice of the dishonor, and gave 
 it to one S. to deliver to the indorser, a copy of which notice, in proper 
 form, appears in his records ; and S. testified that he was in the habit of de- 
 
72 BILLS OF EXCHANGE AND PROMISSOKY n'OTES. 
 
 livering notices for the notary, and that he seasonably delivered to the 
 parties to be notified all notices handed to him for delivery, but had no 
 definite recollection of doing so in the present instance ; that be made 
 out the notarial records in controversy at the time^and they were signed 
 by the notary. Held, this evidence, uncontradicted, is suflScient to prove 
 notice. Union Bank v. Stone, l. 595. 
 
 151. A notary may be permitted to state his usual course of proceed- 
 ings, and his customary habits of business. Union Bank v. Stone, l. 595. 
 
 152. "When a note is silent as to consideration, in a suit between the 
 original parties, the plaintiff should aver and prove a consideration. 
 Bourne v. Ward, li. 191. 
 
 153. But, if the note contain the words "value received," or words of 
 equivalent import, the note itself will be evidence, not only of the prom- 
 ise, h\xt, prima facie, of the consideration. Bourne y. Ward, li. 191. 
 
 154. Thus, a note given to L. for a specified sum, " for three-sixteenths 
 interest in the Thorn & Co. acceptance for $7000, given on account of 
 barque Waverly and remaining unpaid," is sufficient evidence, prima 
 ./'acte, of consideration. Bourne v. Ward, i,i. 191. 
 
 165. A writing in these words, " value received of E. P., I promise to 
 pay him or order seven hundred dollars without interest to be allowed 
 on settlement, no interest to be reckoned," contains no such ambiguity 
 as to authorize oral testimony to explain its terms or qualify its construc- 
 tion. Porter v. Porter, li. 376. 
 
 156. Parol testimony is not admissible to show that the note was 
 given for money received by way of advancement from the father to the 
 son (defendant) there being no ambiguity in the note itself to require it. 
 Porter v. Porter, li. 376. 
 
 157. When the defendant, at the time of signing a promissory note, 
 affixes the word "principal" tb his signature, the note will be conclusive 
 evidence that he is principal, in an action upon a mortgage given by the 
 defendant to the plaintiff to secure its payment. Waterville Bank v. 
 Bedington, lii. 466. 
 
 158. Declarations of the president of a bank relating to the past tran- 
 sactions, are not admissible in evidence. Zn/me Rock Bank v. Hewett, lii. 
 531. 
 
 159. In an action by a bank upon a note, alleged by the defendant to 
 have been given without consideration, it is not admissible to show in 
 defense that a former cashier of the plaintiffs fraudulently failed to en- 
 ter, on the books of the bank, deposits of the defendant, to a large 
 amount. Bime Bock Bank v. Hewett, lii. 531. 
 
 160. In an action by an administrator of the estate of a deceased par- 
 ty, against the maker of a note, the defendant will not be permitted to 
 testify that he paid the plaintiff's intestate the contents of the note be- 
 fore the latters death. Farnum v. Virgin, lii. 576. 
 
 161. The contract implied from one's placing his name in blank upon 
 the back of a negotiable promissory note, is not a written contract so 
 far complete in itself as to exclude parol evidence to show his connec- 
 tion with such note. Sturtevant v. Bandall, liii. 149. Smith v. Mor- 
 rill, Liv. 48. 
 
 162. A.S between the original parties to such a contract, or those hav- 
 ing their rights, parol evidence is' admissible to prove the circumstances 
 
BILLS OF EXCHANGE AND PEOMISSOEY NOTES. 73 
 
 which will determine its character. Sturtevant v. Bandall, lhi. 149. 
 Smith V. Morrill, liv. 48. 
 
 163. Under a count for money had and received and money paid, a 
 note having on its back the defendant's name would be admissible under 
 the general issue. Sturteoant v. Randall, liii. 149. 
 
 164. And if the jury should find the defendant signed as original 
 promiser instead of as indorser, such finding would not be repugnant to 
 the issue. Sturtevant v. Randall, liii. 149. 
 
 165. If the notice to the indorser of the dishonor of a bill of exchange 
 is such that he must know what bill is referred to, it is sufficient to 
 charge him. Wood v. Watson, Lin. 300. 
 
 166. Mercantile usage in this State has established the damages on a 
 dishonored bill of exchange on London at ten per cent. Wood v. Wat- 
 son, LIII. 300. 
 
 167. The court cannot vary this rule, in a monetary crisis, on account 
 of a depreciation of the currency of the country. Wood v. Watson, liii. 
 800. 
 
 168. A note payable to A. C. H., treasurer of the ministerial and 
 school fund of C, or his successor, may be sued in the name of him who 
 was the legal treasurer at the date of the writ, if the note was then and 
 always had been the property of the trustees. Tainter v. Winter, liii. 
 348. 
 
 169. A blank indorsement of a negotiable promissory note is, as be- 
 tween the immediate parties thereto, only ^nma facie evidence of the 
 contract implied by law^ and it is competent to prove by parol evidence 
 the agreement which was in fact made at the time of the indorsement. 
 Smith V. Morrill, lit. 48. 
 
 170. As to third persons, without notice of any other contract, the 
 one implied by law is conclusive. Smith v. Morrill, lit. 48. 
 
 171. In an action by one indorser who had paid the note, against an- 
 other for contribution, it is competent for the plaintiff to prove, that it 
 was " verbally agreed by all the indorsers, previous to indorsing, that 
 their indorsements should be joint and not several ; and that, in the event 
 of liability thereon, and the payment thereof by either, of the whole 
 amount of the note, each should pay to the one thus paj'ing, his equal 
 proportion of the amount thus paid, as joint and not as several indors- 
 ers." Smith V. Morrill, lit. 48. 
 
 172. Proof of such agreement would make the indorsers, as between 
 themselves, co-sureties, and payment of the whole debt by one, would 
 authorize the maintenance of suits by the one so paying, against each of 
 the others for their proportional parts, upon counts for money paid for 
 their use. Smith v. Morrill, lit. 48. 
 
 173. Where it is necessary to determine the date of a promissory note 
 in suit, and offered in evidence, and the name of the month is so inarti- 
 fioially written that, upon inspection, the presiding judge cannot deter- 
 mine whether it should be read June or January, extraneous evidence is 
 admissible to show the true date. JFenderson v. Owen, nv. 372. 
 
 174. A waiver of demand and notice may be proved by parol, or may 
 be inferred from acts and circumstances, in an action against the indorser 
 of a, negotiable promissory note. Keyes v. Winter, lit. 899. 
 
74 BOND. 
 
 175. In an action by the indorsee against the indorser of a negotiable 
 promissory note, indorsed in blank, the latter may prove, by parol, that 
 he indorsed the note for the accommodation of the former. Patten v. 
 Pearson, lv. 39. 
 
 See Abatement, 4. 
 Agency, 4, 5. 
 Amendment, 21. 
 Assumpsit, 34. 
 Bills, &c., 117. 
 
 BOND. 
 
 I. IN GENEEAL. 
 n. CONSTRUCTION AND BEBACH. 
 III. PLEADINGS AND EVIDENCE. 
 
 Of Probate Bonds, Replevin Bonds, Poor Debtors' Bonds, Collector^ 
 Bonds, See theie appeopeiate titles- 
 
 I. IN GENEEAL. 
 
 1. Where the statute requires an officer to give a bond, to be approved 
 before he can act, he cannot justify as an officer de Jure, until the statu- 
 tory bond has been given and approved. Bounds v. Bangor, xlvi. 541. 
 
 2. A permit from the land agent to cut timber on the State lands is 
 valid, although it does not appear whether or not the holder gave the 
 bond required by the statute. The bond is a matter subsequent to, and 
 independent of, the permit. Mason v. Sprague, xlvii. 18. 
 
 3. A bond given to obtain an injunction ex parte, under R. S. of 1841, 
 c. 96, § 11, conditioned to pay "all such damages and costs (if any), as 
 shall be sustained and awarded " against the applicant, in consequence 
 of the injunction, is valid and may be enforced. Proprietors of Union 
 Wharf V. Mussey, xlviii. 307. 
 
 4. The words in such bond " and awarded against said M.," being in 
 addition to the requirements of the statute, may be rejected as surplus- 
 age. Proprietors of Union Wharf v. Mussey, xlviii. 307. 
 
 5. A party who signs an instrument creating a liability, is ordinarily 
 presumed to know all its contents, if no fraud is practiced upon him ; 
 but if a surety signed a bond after one of the names accepted by the 
 obligees had been erased, it is immaterial whether he knew it or not, if 
 he did not annex to his act the condition that the bond was not to be 
 delivered until all those accepted by the obligors had signed. Bedfidd 
 v. Shaver, l. 36. York Co. Ins. Co. v. Brooks, li. 506. 
 
 6. So far as a bond for the conveyance of real estate is a personal ob- 
 ligation, not touching the realty, it is binding on the parties without be- 
 ing recorded. Bailey v. Myrick, l. 171. 
 
BOND. 
 
 75 
 
 7. A bond for the conveyance of Land, upon the payment of a sum of 
 money at a specified time, is not an incumbrance upon premises insured, 
 if the time has expired and the money has not been paid, even if the 
 obligor has verbally waived the time. Newhall v. Union Ins. Co., lii. 
 180. 
 
 8. A bond, given for her support, to a married -woman, by a man 
 other than her husband, cannot be considered invalid as being in contra- 
 vention of good morals and tending to impair the obligations of the 
 marriage covenant, unless it appear that it was given, or had a tendency, 
 to induce a separation between husband and wife. Farnum v. Bartlett, 
 Ln. 570. 
 
 9. A party executing a deed, bond, or other instrument, and deliver- 
 ing the same to another, as his deed, knowing that there are blanks in it 
 to be filled, necessary to make it a perfect instrument, must be consid- 
 ered as agreeing that the blanks may be thus filled after he has executed 
 it. South JBerwick v. Huntress, liii. 89. 
 
 See Attachment, 12. 
 Pkactice, 64, 68, 69. 
 State Tebas., 2. 
 
 n. CONSTRUCTION AND BREACH. 
 
 10. A bond, given to obtain a discharge from an unlawful imprison- 
 ment, is obtained by duress, and is void. Sowker v. Lowell, xlix. 429. 
 
 11. Where a bond stipulated that the obligor " shall fully and com- 
 pletely maintain the obligee, as her comfort and convenience may require, 
 during her natural life, and shall permit the said obligee to occupy, for 
 her own sole use and benefit, the east chamber in the dwelling-house of 
 the obligor, — provided she shall always, when requested, and able, eat at 
 the table of the said obligor, and personally occupy said chamber," Held, 
 
 (1) That the plaintiff might waive her right to support under the bond ; 
 
 (2) That, so long as she lived away from the obligor's house, without 
 making any claim for support, she thereby waived her right to sup- 
 port ; (3) That a neglect to fulfill, after claim made and a denial of the 
 validity of the bond, constitute a breach thereof ; and (4) If the adminis- 
 tratrix would avail herself of the proviso in the bond, she must " make 
 the request " when a fulfillment of the bond is demanded. Farnum v. 
 Sartlett, Ln. 570. 
 
 See Equity, 159. 
 
 in. PLEADINGS AND EVIDENCE. 
 
 12. A bond or contract under seal, cannot be assigned so as to enable 
 the assignee to maintain an action in his own name. Lyon v. Parker, 
 SIN. 474. Jackson y. Y. <& C. H. H. Co., xlvui. 147. 
 
 13. The defendant became bonnd by his bond, jointly and severally to 
 A. 0. and others, owners of certain mills, dam, and water-power, and also 
 unto the grantees of either and all of them (naming the obligees), to 
 complete, and keep in repair for twenty years, the dam. In an action of 
 covenant broken, brought by a grantee of some of the owners, for dam- 
 ages for defendant's non-performance of his covenant. ITeld, that, as 
 
76 BOOM. 
 
 the defendant was a stranger to the title, his covenant was personal ; 
 that as the plaintiff was no party to the bond when executed, there is no 
 privity of contract between him and the defendant; and there being no 
 privity of contract nor of estate, the action is not maintainable. L/yon v. 
 Parker, xlv. 474. 
 
 14. Railroad bonds being specialties, the remedy for breaches there- 
 of is by an action, not of assumpsit, but of debt or of covenant broken, 
 not being legally assignable, no action is maintainable in the name of an 
 assignee. Jackson v. Y. & C. B. B. Co., xlviii. 147. 
 
 15. As to the rule of the common law requiring judgment inan action 
 upon a bond to be for the penal sum named, and the modifications of it 
 by the various statutes. Lewis v. Warren, xlix. 322. PMlhrook v. 
 Burgess, lii. 271. 
 
 16. In this State, there is no existing statute which authorizes a judg- 
 ment in an action of debt upon bonds, &c., differing from the common- 
 law rule, unless poor debtors' bonds, in certain cases, may be exceptions. 
 Lewis V. Warren, xlix. 322. 
 
 17. In the trial of an action of debt upon a bond, which, by its terms, 
 is to be void on condition that the defendant "shall truly and faithfully 
 maintain " the plaintiff '■ during her life," &c., if the defendant prays oyer 
 of the bond and pleads nil debet with a brief statement alleging per- 
 formance, the burden of proving performance is upon the defendant. 
 Philbrook v. Burgess, lii. 271. 
 
 18. If the plaintiff (one of the members of a firm, including the de- 
 fendant and others, each of which purchased and held lands for the gen- 
 eral objects of the copartnership), sell his entire interest in the partnership 
 property, including the lands, to the defendant, taking back a bond recit- 
 ing the sale and condition to " save the plaintiff harmless from all liabili- 
 ties of said firm and growing out of said firm ; " a judgment rendered 
 against all the members in a petition for partition of one not a member, 
 commenced before, but determined after, such sale, and defendant, by an 
 attorney retained by the defendant, in the name of all the members, is 
 covered by the bond ; and, if the plaintiff pay such judgment, he will 
 be entitled to recover the amount thus paid, in an action upon the bond. 
 Bunton v. Dunn, liv. 152. 
 
 19. At common law, nil debet is not a good plea to debt on bond. 
 But, if pleaded and joined, the obligor may, it seems, prove any fact tend- 
 ing to reduce his indebtedness. Miller v. Moses, lvi. 128. 
 
 20. When the obligor in a bond for the conveyance of land has con- 
 veyed it to a third person by a deed of warranty made " subject to the 
 incumbrance created by the bond," no demand for a conveyance need be 
 made on the obligor prior to the commencement of an action upon the 
 bond. Mc Garthy v. Mansfield, lvi. 538. 
 
 BOOM. 
 
 A boom company, being without fault or negligence in the erection 
 and management of its boom, is not liable for the flowage of land not 
 taken under its charter, caused by the boom, in cooperation with an un- 
 usual accumulation of logs and a large rise of water. Lawler v. Baring 
 Boom Co., LVI. 443. 
 
BOUNTY. 
 
 BOUNTY. 
 
 77 
 
 1. If, in the vote of a town raising money to pay commutation, there 
 was embraced also provision for the payment of bounty to drafted men 
 or their substitutes, who were mustered into military service, Pub. Laws 
 of 1864, c. 226, has made such provision valid ; and as that part of the 
 vote which has been made valid is separate from the illegal, it is so far 
 legally operative. Barbour v. Camden, li. 608. 
 
 2. Pub. Laws of 1863, c. 170, § 1, contemplates only the " doings " of 
 meetings legally notified and held. Sanborn v. Machias Port, liii. 82. 
 
 3. In December, 1863, the plaintiff enlisted in the navy, ser^-ed three 
 years, and was honorably discharged. In August, 1864, the defend- 
 ant town, at a meeting legally notified and under a proper article, " voted, 
 that the town shall raise a sum of money suiBcient to fill its quota un- 
 der the call of the president in 1864, provided the men can be procured 
 for $300 each from the town." Held, that the vote was prospective and 
 did not apply to those who enlisted prior to the call. Alley v. Edgecomh, 
 LIII. 446. 
 
 4. On Feb. 9th, 1865, the city of Portland, by its constituted authori- 
 ties, ordered, that to each person volunteering on its quota, there should 
 be paid certain specific bounties, upon being mustered in, " and to any 
 citizen of Portland mustered in as aforesaid, there shall be paid the ad- 
 
 ■ ditional sum of fifty dollars when mustered out." The order also pro- 
 vided that it " shall be in force and effect, and tlie treasurer be author- 
 ized to pay the bounties it contemplates, as soon as the Legislature shall 
 enact a law, under the operation of which the legality of said bounties 
 shall be unquestioned." Held, that the order is not within § 1, c. 298, of 
 the Pub. Laws of 1865, and that the fifty dollars bounty was not thereby 
 made valid. Ferrin v. Portland, i,m. 458. 
 
 5. Bounty money of a volunteer, in the hands of a person summoned 
 as trustee, cannot be attached by trustee process, when the principal 
 debtor's personal property is less than a thousand dollars, by virtue of 
 § 2, 0. 106, of the Pub. Laws of 1862. Bridgton v. Larhin, liii. 106. 
 
 6. By virtue of the Acts_of Congress, c. 9, § 6 of 1861, and o. 144, §§ 
 1 and 3 of 1862, the father "(if resident in the IT. S.) of a deceased volun- 
 teer soldier is entitled to his arrears of pay and bounty ; and the Soldier 
 has no right to dispose of either by will. Beed v. Beed, liii. 527. 
 
 7. Congress has a right to prescribe and determine what pay and 
 bounty shall be given to a soldier and to whom, in case of his death, the 
 arrears shall be paid. By enlisting after the passage of >these laws, the 
 volunteer entered into a contract, the terms of which had been estab- 
 lished by Congress, and to which he assented by the act of his enlist- 
 ment. Beed v. Beed, liii. 527. 
 
 8. A town voted a bounty " to every person who may volunteer and 
 be mustered into the service of the tl. S., on the quota of the town 
 under " a specified " call for troops," and the plaintiff, on his motion, and 
 without the knowledge or consent of any agent of the town, volunteered 
 and caused himself to be mustered in, and credited on such quota. Held, 
 that the plaintiff must, in order to recover the bounty, prove that, at the 
 time he enlisted, the quota of the sub-district comprising the town, was 
 not full. Thompson v. Bridgton, liv. 368. 
 
78 BOUNTY. 
 
 9. A letter, signed by the head clerk of the district provost marshal's 
 office, and addressed to the selectmen of the town, stating that he is 
 " directed by the provost marshal of the distiict to inform them that the 
 credits of two drafted men (specifically named therein) have, by order 
 of the provost marshal general, been revoked," is not legal evidence of 
 the facts therein contained. Thompson v. BHdgton, liv. 368. 
 
 10. The defendant town, at a legal meeting held in Aug., 1864, voted, 
 "to raise $300, to each volunteer," and in addition, "to pay such volun- 
 teer $16 per month," specifying the time of service essential to entitle 
 the volunteer to such " bounty and pay, to be one year." In an action 
 by one who volunteered upon the defendant's quota for one year, and 
 served until honorably discharged at the close of the rebellion, Held, 
 
 (1) That the vote was a promise to pay such volunteer the sums named ; 
 
 (2) That such volunteer was entitled to the full amount, although he 
 served but nine months, he having been discharged by act of the gov- 
 ernment, before the year expired ; and (3) That the vote was ratified and 
 made valid by c. 298, Pub. Laws of 1865, notwithstanding that, when the 
 vote was passed, it was expressly prohibited by c. 227, Pub. Laws of 
 1864. Winchester v. Corinna, lv. 9. 
 
 11. The legislature has power to confer the authority upon towns to 
 offer or pay bounties, and to ratify votes offering bounties by subsequent 
 enactment. Winchester v. Corinna, lv. 9. 
 
 12. Sect. 1, c. 298, Pub. Laws of 1865, did not ratify the vote of a 
 town whereby it voted to pay a bounty to drafted " non-combatants " 
 who were credited upon such town's quota, but were discharged under 
 § 17, c. 13, of Act of Congress, approved Feb. 24, 1864. French v. San- 
 gerville, lv. 69. 
 
 13. The defendants voted to pay a fixed sum "for each man drafted to 
 fill their quota," under call of July, 1864. The plaintiff, a resident of the 
 defendant town, then at work in the IT. S. navy-yard, was drafted, ac- 
 cepted, and furloughed to continue his work in the navy-yard. After 
 the draft, the defendants requested an extension of time for filling their 
 quota, and soon after filled it with volunteers, whereupon the plaintiff 
 was discharged from TJ. S. service. Held, that the plaintiff did not come 
 within the spirit of the vote, and could not recover of the town. Bich- 
 ford V. JBroohsviUe, lv. 89. 
 
 14.'* Money paid as a bounty for enlistment into the military or naval 
 service of the U. S., is a gift to the person enlisting, and not wages. 
 Mews V. Bichford, lv. 528. 
 
 15. Bounty money, to which a minor becomes entitled upon his en- 
 listment as soldier, belongs to him and not to his father or master. 
 Mears v. Bichford, lv. 528. 
 
 16. The father cannot recover such bounty in his own name, although 
 the contract of enlistment was made with the minor's father's consent. 
 Mears v. Bichford, lv. 528. 
 
 17. On Jan. 6, 1865, the plaintiff, relying on the promise of the de- 
 fendant town, made through their selectmen, that, if he would enlist upon 
 their quota under the then existing call, he should receive the same town 
 bounty as others, subsequently enlisting upen the same quota, and under 
 the same call, might be entitled to render a vote of the town, at a meet- 
 ing thereof already called and to be holden eight days thereafterwards, 
 enlisted and was duly mustered, credited upon the town's quota, assigned 
 
BREACH OF PROMISE OF MARRIAGE. 79 
 
 to the coast-guard, and served there until July following, when he was 
 honorably discharged. The town voted " to raise $300 for each man who 
 volunteers for one year to fill the town's quota under the present call." 
 On the 15th of the following Feb. one of the selectmen delivered to the 
 plaintiff a town order for $300. At a town meeting duly called and held 
 on the 13th of the following March, in pursuance of an article in the war- 
 rant, the town voted " to pay men who have gone into the coast-guard 
 8100 bounty. In an action upon the town order, Hdd, (1) That the 
 former vote included the plaintiff ; (2) That the order was made valid 
 by Pub. Laws of 1865, c. 298, § 1 ; (3) That after the order had been 
 given, and confirmed by the legislature, the town could not revoke it 
 either in whole or in part ; and (4) That the contract was ratified by Pub. 
 Laws of 1865 and 1866, chapters 298 and 59 respectively. Hart v. Sol- 
 den, Lv. 572. 
 
 18. A person drafted to serve in the military service " one year, or dur- 
 ing the war," who entered and served until regularly discharged, is not 
 within the fair meaning of a vote offering a bounty to men drafted " to 
 serve two years." Daggett v. Gushing, lvi. 422. 
 
 19. At a legal meeting held January 21, 1865, the defendant town 
 voted, under a proper article in the warrant, " to raise $400 to every 
 drafted man entering the service," and that the " selectmen give orders 
 therefor." April 6, 1865, one Churchill, an inhabitant of the defendant 
 town, was drafted, and, on April 10, he reported ; and, being thereupon 
 duly examined and accepted, and allowed on defendants' quota, he was 
 permitted to go home on condition that he would return at a specified 
 time. April 11, he received from the selectmen a negotiable town order 
 for $125, which he negotiated to the plaintiff. At the time specified, 
 Churchill reported for duty, when he was informed by the provost mar- 
 shal that Lee's army had surrendered, that his services would not be 
 needed, and that he might return home and remain there until further 
 notice. He returned home and was finally dischai-ged in December fol- 
 lowing. In an action on the order, in the name of the indorsee, Sdd, 
 that Churchill " entered the service " within the meaning of the vote of 
 the town, and that the vote was within the statute of this State. Ma- 
 honey V. Lincolnville, lvi. 450. 
 
 BOUNDARIES OF LAND. 
 
 See Deed. 
 
 BREACH OF PROMISE OF MARRIAGE. 
 
 1. In an action for the breach of a promise of marriage, proof that the 
 plaintiff is a loose and immodest woman, and that the defendant broke 
 his promise on that account, is a bar to the action ; but if, when he made 
 the promise, he had knowledge of these facts, it is no defense. Berry 
 V. Bakeman, xliv. 16-i. 
 
80 BREACH OF PROMISE OF MARRIAGE. 
 
 2. A breach of the criminal law by the plaintiff is no bar to a suit for 
 breach of a promise to marry, especially where there is no evidence that 
 the defendant was informed thereof, or refused to marry the_ plaintiff on 
 that account ; but it may be given in evidence on the question of dam- 
 ages. Berry v. Bakeman, xliv. 164. 
 
 3. An action for an alleged breach of promise of marriage, when no 
 special damage is alleged in the writ, does not survive in behalf of the 
 promisee. Hcmey v. JPage, lt. 142. 
 
 4. An allegation of special damage, which would cause the action to 
 survive, must be of damage to the property, and not to the person mere- 
 ly, and such as would be sufficient of itself to sustain a suit. Sovey v. 
 Page, ly. 142. 
 
 5. An allegation that, after such alleged promise of marriage, the de- 
 ceased promisee had a child born to her out of wedlock, now living, 
 and that the promiser is the father of such child, if proved, would only 
 increase the damages on the ground of injury to the character and not 
 to the estate. Hovey v. JPage, lt. 142. 
 
 6. Nor does such action come within the provisions of R. S., c. 87, § 8. 
 Hovey v. Page, lv. 142. 
 
 7. Where the defendant told the plaintiff he was not able to man-y 
 her then, but promised her he would marry her within four years ; it not 
 appearing that the parties understood that the promise was not to be 
 performed within one year, such promise is not within the statute of 
 frauds. Lawrence v. Gooh, lvi. 187. 
 
 8. In the trial of an action for the breach of a promise of marriage, 
 an instruction to the jury that evidence in regard to the defendant's 
 property was admissible, for the purpose of showing, inter alia, " the in- 
 jury to the plaintiff's affections, if any, and the mortification and pain 
 resulting from the breach," is unexceptionable. Lawrence v. CooJc, lti. 
 187. 
 
 9. The instruction that, if they could find from the testimony in the 
 case any unjust imputation upon the plaintiff's character, they might con- 
 sider it, and measure these elements as nearly as they could in dollars 
 and cents, is also unobjectionable, whether there was or was not any evi- 
 dence upon which to predicate it. Lawrence v. Cook, lvi. 187. 
 
 10. In such a case, the plaintiff is entitled to such damages as would 
 place her in as good a condition, pecuniarily, as she would have been in 
 if the contract had been fulfilled. Lawrence v. Cook, lvi. 187. 
 
 11. In the trial of such a case, the plaintiff's testimony, as to what 
 declarations the defendant's mother made to the plaintiff, in the absence 
 of the defendant, and not communicated to him, is not admissible, either 
 as tending to prove the alleged promise on the part of the defendant, or 
 that on the part of the plaintiff. Lawrence v. Cook, lvi. 187. 
 
BRIDGE. 81 
 
 BRIDGE. 
 
 1. The county commissioners of Kennebec county so located a high- 
 way as to cross a stream in the city of Augusta. The city made the 
 highway as laid out, and erected a bridge across the stream. An owner 
 of land, bounded by the stream, sued the city in case for injury to his 
 premises caused by the bridge, alleging that it was so constructed as to 
 change the current of the stream whereby the damage occun-ed. Hdd, 
 that to establish the liability of the city, it was not necessary for the 
 plaintiif to prove that the bridge was wantonly built so as to injure him ; 
 but it was sufficient to show a want of ordinary care in the erection of 
 the bridge, on the part of the officers of the city, and that thereby the 
 injury happened, without any fault of the plaintiff, arising from acts of 
 negligence on his part, which contributed to produce the damage. Stone 
 V. Augusta, xlvi. 127. 
 
 2. The laying out of the way, by the commissioners, was a judicial 
 act; but the construction of it, and the erection of the bridge, were acts 
 purely ministerial ; and the same rules of law are to be applied to the 
 city, as would be to individuals in the performance of acts of a like min- 
 isterial character. Stone v. Augusta, xlvi. 127. 
 
 3. And such a case is distinguishable from one of ordinary repair of a 
 highway, falling within the jurisdiction of a highway surveyor. Stone 
 V. Augusta, xlvi. 127. 
 
 4. In the absence of any special provisions in the charters of toll- 
 bridge corporations, there seems to be no essential difference between 
 the obligations and liabilities resting upon such corporations and those 
 of a town charged with the maintenance of a bridge. Orcutt v. Kittery 
 Point Bridge Co^ mi. 500. 
 
 5. Toll-bridge corporations are not bound to erect or maintain rail- 
 ings upon their bridges for travelers to lean against or rest upon while 
 they stop to recover from fatigue ; and, if a person uses them for such 
 purpose, he does it at his own risk. Orcutt v. Kittery Point Bridge 
 
 Co., Lm. 500. 
 
 See County CoMMissioisrEES, 16. 
 
 BUILDINGS. 
 
 See Husband, &c., 14. Lease, 2, 4, 5, 6. Title, &c., 15, 17. Tees- 
 pass, 31. 
 
 BURGLARY. 
 
 See Indictment, 53. 
 
82 CASE. 
 
 BY-LAW. 
 
 See Complaint, 12. Coepobatiobt, 9. Eviden-cb, 178. 
 
 CANCELLATION. 
 
 See Contract, 38. Deed, 5, 6, 7, 
 
 CARRIER. 
 
 See Bailment. 
 
 CASE. 
 
 1. A declaration, alleging that the defendant's horse, being unla-wfully 
 at large, broke and entered the plaintiff's close, and injured the plaintiff's 
 horse, which was there peaceably and of right depasturing, is sufficient 
 to sustain a verdict for such injury. Decker v. Gammon, xliv. 322. 
 
 2. When the right to enter upon the land of another exists, the reme- 
 dy for an abuse of that right is case. Sinks y. Sinks, xlvi. 423. F'd- 
 ler v. Walker, xlvi. 280. 
 
 3. In case against a common carrier for an injury arising from his neg- 
 ligence, only such damages can be recovered as necessarily result from 
 the wrongful act, unless special damages are alleged and proved. Sunt- 
 er V. Stewart, xlvii. 419. 
 
 4. An unmarried woman, receiving an injury by the negject of a com- 
 mon carrier, in whose carriage she was upset, cannot recover damages on 
 account of her prospect as to marriage being impaired by the injury, such 
 damages not being specially alleged in the writ, nor sustained by the ev- 
 idence. Sunter v. Stewart, xlvii. 419. 
 
 5. In case, for damages to an employee, arising from the neglect of the 
 employer, in the use of defective machinery or tools, the declaration is 
 bad, if it does not allege that the defect was unknown to the plaintiff, 
 as well as known to the defendant, and that it arose from the want of 
 proper care and diligence on the part of the defendant. £uzzeU v. Lci- 
 conia MarCf. Go., XLvni. 113. 
 
 6. Under R. S. c. 125, § 4, case, for the recovery of property lost in 
 gambling, may be maintained without a previous demand. Peyret v. 
 
 Coffee, XLViii. 319. 
 
CASE. 
 
 83 
 
 7. The plaintiffs, a railroad corporation, sued the defendant in case, for 
 preventing their constructing a branch track across a public highway, 
 where they were not legally authorized so to construct it. SelA^ that the 
 action was not maintainable ; that, if the defendant wrongfully entered 
 upon the land of another to prevent the construction of such branch 
 railway, he would be liable to the owner in trespass ; and that he was 
 not liable in case to the railroad corporation for merely preventing their 
 violating the law. Bangor 0. <S> M. B. B. Co. v. Smith, xlix. 9. 
 
 8. Case is the appropriate action to recover double the price of build- 
 ing the defendant's part of a divisional fence, setting forth all the facts 
 necessary to be established, to fix the defendant's liability. Sanford v. 
 JHaskell, l. 86. 
 
 9. In case to recover damages for an injury caused by the running of 
 the defendant's horse against the plaintiff, on the highway, Held, (1) 
 The plaintiff must prove that the injury complained of was caused solely 
 by fault of the defendant, or his servants; (2) If any other cause contrib- 
 uted to produce the injury, the plaintiff cannot recover; (3) If the de- 
 fendant used such care in keeping and managing his team, as men of 
 ordinary prudence do' he was not in fault ; (4) But it; through want of 
 ordinary care, the defendant's horse escaped from him, and did the inju- 
 ry, the defendant is liable, although the falling of icicles frightened the 
 horse and caused him to run away ; (5) Where the cause of the injury is 
 one distinct act, separate and by itself, the law does not go beyond this 
 to ascertain what was the cause that led to or incited the act ; (6) It is 
 no defense, that the plaintiff was in use of the highway not justified by 
 law, provided no negligence, or want of ordinary care on his part, con- 
 tributed to produce the injury. Bigdow v. Beed, li. 325. 
 
 10. "Under our present statutes, for waste committed or suffered by 
 the tenant, the reversioner may have an action of waste to recover the 
 place wasted, and the damages; or he may have an action of the case in 
 the nature of waste, to recover his damages only ; but he cannot have 
 both. Stetson v. Day, li. 434. 
 
 11. An action on the case includes assumpsit as well as tort. Sathorn 
 V. Calef, Liii. 471. 
 
 12. Where a reniedy is given by an action on the case, all the facts 
 must be set out in the declaration ; but whether in the form of assump- 
 sit or of tort must be determined fi-om the nature of the facts. Hathorn 
 V. Calef, LIII. 471. 
 
 13. The only remedy against one who falsely I'epresents himself as an 
 agent of a town and authorized to contract for it, and does so contract 
 without authority, is an action on the case founded on deceit. Noyes v. 
 Boring, lv. 408. 
 
 14. Thus, where the defendant, a deputy collector of town taxes, di- 
 rected the plaintiffs to publish an advertisement requesting tax-payers to 
 pay their taxes to him forthwith, and charge the price of such publica- 
 tion to the town ; and the plaintiff followed the direction, but the towii 
 denied the defendant's authority to contract for the publication, and re- 
 fused to pay for the same, Held, that case was the only remedy ; and 
 that the plaintiff could not waive the tort and bring assumpsit. Noyes 
 V. Boring, lv. 408. 
 
 See Action, 6. 
 
 Ambn-dmbitt, 8, 14, 15, 28. 
 Coepobatiojst, 50. 
 
»4 CEETIORAEI. 
 
 15. Where a town voted a bounty to certain individuals, and author- 
 ized and directed its selectmen to draw: orders for such persons as came 
 within the conditions of the vote ; and the plaintiff presented to the se- 
 lectmen satisfactory evidence that he was one of the persons named, and 
 demanded his order ; and the selectmen, without assigning any reason 
 therefor, refused to give the order ; and in ten days thereafterwards the 
 plaintiff brought case against the selectmen for such refusal. Held, that, 
 upon the foregoing facts alone, this court cannot pronounce, as matter of 
 law, such refusal to be wilful and malicious ; or that it must necessa- 
 rily be inferred as a fact that it was so. Curtis v. Dowries, lvi. 24. 
 
 Cases eeaitiemed, explained, and ovekrulbd. 
 
 1. Webster v. Emery, xlii. 204, explained by Madden v. Tucker, xlvi. 
 367. 
 
 2. Dunning v. Pike, xlvi. 461, overruled by Brookings v. White, 
 XLix. 479. 
 
 3. Parsons v. Copeland, xxxviii. 537, explained by Allen v. SaU, l. 
 253. 
 
 4. Young v. Young, xxxvi. 133, explained by Esty v. Baker, l. 825. 
 
 5. Mitchell V. Union L. Ins. Co., xlv. 104, explained by Woodman v. 
 York & C. B. B. Co., l. 549. 
 
 6. Jewett V. Whiti%ey, xliii. 242, reexamined and sustained by Jeno- 
 ett V. Whitney, li. 233. 
 
 7. Herriman v. Slower s, xliii. 497, explained by Hartland v. Church, 
 xLvn. 169. 
 
 8. State V. Casey, xlv. 435, modified by State v. Collins, XLvm. 217. 
 
 9. Doan v. Freeman, xlv. 118, distinguished from Davis v. Stinson, 
 Liii. 493. 
 
 10. Cutler V. Maker, xli. 594, examined and overruled by Veazie v. 
 Howland, Lin. 39. 
 
 11. Bobbinston v. Lisbon, xl. 287 ; Sanford v. Lebanon, xxvl 461 ; 
 Camden v. Lincolnville, xvi. 384; and Belmont v. Pittston, iii. 453, 
 affirmed by Veazie v. Howland, liil 89. 
 
 12. Fuller v. Benjamin, xxiii. 255, questioned by Lawrence v. Bokes, 
 LIII. 110. 
 
 18. ^ng V. Bobinson, xxxin. 114, distinguished from Leach v. Marsh, 
 XLvn. 548. 
 
 14. Sayward v. Warren, xxvii. 453, overruled by Bamsdell v. Bus- 
 well, Liv. 546. 
 
 CERTIORARI. 
 
 1. "Where the county commissioners have laid out a highway, but it 
 does not appear that they have made any adjudication whether damages 
 were sustainedbypei-sons over whose land the way was located, this is, 
 in effect, an adjudication that no damages were sustained, and a party 
 
CEETIOEAEI. 
 
 85 
 
 aggrieved may petition for a jury to assess damages within the time 
 limited ; but it furnishes no suffieient cause for a writ of certiorari to be 
 issued at the instance of the town where the road is located. Sowland 
 V. Go. Com. of Pen. Go., xlix. 143. 
 
 2. The neglect of the county commissioners to designate one of their 
 number for their chairman, on or after the first Monday of January, may 
 be an inaccuracy, but, without proof of injury thereby to the petition- 
 ers, does not call for interference by certiorari. Sowland t. Go. Com. 
 of Pen. Co., XLIX. 143. 
 
 3. Whether, in case the commissioners having, on the failure of the 
 town to make a road duly located, put it under contract to several con- 
 tractors, have a right to issue a warrant of distress against the town be- 
 fore the entire road is completed, qucere. But if such warrant has been 
 prematurely issued, and attempt made to enforce it, the remedy is not 
 by certiorari. Howland v. Go. Com. of Pen. Co., xlix. 143. 
 
 4. If the acts of a city council in authorizing the extension of a street 
 are erroneous, they can be vacated only by certiorari. Gay v. Brad- 
 street, XLIX. 580. 
 
 5. Where, by the special act of 1846, c. 810, damages were to be as- 
 certained in the same manner that damages, occasioned by laying 
 out of highways by law, detef'mined ; if the county commissioners issue 
 a warrant for a jury to assess the damages, on the application of persons 
 claiming damages, without giving notice to the party adversely interested, 
 of the pending of such application (R. S. of 1841, c. 25, §§ 8 and 5), the 
 proceedings under the warrant will be illegal, and certiorari will lie. At. 
 <& /St. L. R. P. Co. V. Cumberland County Commissioners, li. 36. 
 
 6. If, in locating so much of a highway, extending into two counties, 
 as is in their own county, the county commissioners assign, in their report, 
 the several portions of the road to be built by the respective counties, 
 instead of the towns, in which said road runs ; a writ of certiorari will 
 not be granted to quash the proceedings. Detroit v. Somerset County 
 Commissioners, Ln. 210. 
 
 7. Nor will such a writ be granted because no damages were awarded 
 to the individuals over whose land the road passed, nor because such land- 
 holders were not named, it appearing that no damages were claimed. 
 Detroit v. Somerset County Commissioners, Ln. 210. 
 
 8. Nor because no time was allowed the owners of land over which 
 the road was located to take off wood, timber, and other erections. The 
 statute allows them one year for that purpose. Detroit v. Somerset 
 County Commissioners, lii. 210. 
 
 9. A writ of certiorai can present only the record ; nothing dehors 
 the record can be shown in order to obtain it. Poss v. Ellsworth, xlix. 
 417. 
 
 10. The court will issue a writ of certiorari to quash the proceedings 
 of the justices of the peace and of the quorum, in taking the disclosure 
 of a poor debtor, if the record does not show that the debtor was ad- 
 mitted to the oath. Poss v. Ellsworth, xlix. 417. 
 
 11. Objection to the citation of a poor debtor should be taken at the 
 hearing before the justices ; and, if overruled, certiorari is the proper rem- 
 edy. Leiois V. Prewer, li. 108. 
 
 12. This court will not entertain a petition for certiorari for the cor- 
 
86 CHARITABLE USES. CHEATING BY FALSE PKETENCES. 
 
 rection of merely harmless errors whicli can in no event seriously preju- 
 dice the petitioner. Furbish v. Cunningham, lvi. 184. 
 
 13. Thus, on a petition for a writ of certiorari to quash the record 
 of a corps of justices of the peace and of the quorum, organized to hear 
 the disclosure of the petitioner as a poor debtor, for the alleged reason 
 that their decision as to the legality of his application, citation, and ser- 
 vice thereof, was contrary to law and in violation of his legal rights ; 
 such writ will not be granted when it appears that the petitioner, not- 
 withstanding the action of the justices, is entitled to judgment in an 
 action by the creditor upon the petitioner's bond. Furbish v. Cunning- 
 ham, LVI. 184. 
 
 14. If a poor debtor disclose and prove that he has filed his petition 
 in bankruptcy and has been duly declared a bankrupt, and thereupon re- 
 fuses to " submit himself to " further " examination," and to " make true 
 disclosure of his business affairs and property on oath ;" and the justices 
 refuse to hear any other legal and pertinent evidence adduced by the 
 creditor, but discharge the debtor, the proceedings will be quashed on 
 certiorari. Marr v. Glarlc, lvi. 542. 
 
 ■CHAIsrCERT RULES. 
 
 For appointment of masters in chancery, xlvii. 599. 
 
 CHARITABLE USES. 
 
 1. A bequest to charitable uses, to an unincorporated society, may be 
 enforced, by virtue of the statute of 43 Elizabeth, c. 4, which has been 
 regarded as a part of the common law of this State, even if it could not 
 be made effectual without that statute. Preachers' Aid Society v. Rich, 
 XLV. 552. Howard v. American Peace Society, xlix. 288. Drew v. 
 Wakefidd, liv. 291. 
 
 2. A court of equity will give effect to charitable gifts, if possible. 
 And, if the object can be ascertained, the want of a trustee to execute 
 the trust will be supplied by an appointment by the court. Preachers^ 
 Aid Society v. Rich, xlv. 552. Drew v. Wakefleld, liv. 291. 
 
 3. Where a bequest was made to an unincorporated association, and 
 after the death of the testator, its members became legally incorporated, 
 the Court directed that the property bequeathed be delivered to the cor- 
 poration to be held in trust, for the purposes specified by the testator. 
 Preachers' Aid Society v. Rich, xlv. 552. 
 
 CHEATING BY FALSE PRETENCES. 
 
 1. An indictment under the statute for cheating by false pretences, in 
 which one is charged with having pawned a watch as a pledge that he 
 
CITIZENSHIP. COLLECTOR. 
 
 87 
 
 would perform a certain act, falsely representing it to be worth a sum 
 much exceeding its real value, and, at the time, representing that the 
 watch was the property of a third person, there being no allegation that 
 he represented he was authorized by the owner to part with it, was held 
 to be bad on demurrer, the property taken in pledge being confessedly 
 the property of another person. State v. Estes, xlvi. 1^0. 
 
 2. Allegations, in the plaintiff's writ, that the defendant falsely and 
 fraudulently affirmed, that one A., whose note he held, was then in good 
 credit and business at B. and was responsible ; that plaintiff was, there- 
 by, induced to take the note for his wagon, whereas the defendant knew 
 that A. had failed and absconded and was irresponsible, disclose a case 
 of cheating by false pretences, for which the defendant on proof, is Uable 
 to indictment. Carlisle v. Mdjlamara, xlviii. 424. 
 
 See CoNSPiEAOT, 9. 
 
 CITIZENSHIP. 
 
 1. A debtor, temporarily within the State, is not excluded from the 
 benefit of the statutes of this State exempting certain property from at- 
 tachment. Everett v. Herrin, xlti. 357. 
 
 2. It is citizenship, and not the place of making or of performance of 
 contracts, that determines the legal rights of the parties. Fetch v. Bug- 
 bee, XLVIII. 9. 
 
 COLLECTOR. 
 
 • 
 
 1. Defects in a warrant or tax-list may be a good reason for not exe- 
 cuting the former, but a collector, having collected money without ob- 
 jection by the tax-payers, is liable to account therefor, and his sureties 
 cannot excuse themselves from paying the money collected by their 
 principal in the bond wherein they have bound themselves that he " shall 
 well and faithfully perform all the duties of hisoffice." Orono v. Wedge- 
 wood, xLiv. 49. 
 
 2. A collector of taxes may, under a warrant from the assessors in 
 which the time for completing the collection is specified, arrest a delin- 
 quent after the lapse of the time limited thereon (R. S. of 1857, c. 6, 
 §§ 99 and 100). Sartland v. Church, xlvii. 169. 
 
 3. Money, collected and paid over by a collector, arising from taxes of 
 a certain year, committed to him, cannot be appropriated to make up a 
 deficiency of a previous year, so as to affect the relative rights and liabil- 
 ities of the sureties on his several bonds, without their consent. Porter 
 Y. Stanley, xlvii. 515. 
 
 4. A settlement made with him by the selectmen, in which such ap- 
 propriation is attempted to be made, is inequitable and unauthorized, 
 and does not bind the town or sureties. Porter v. Stanley, xlvii. 515. 
 
88 COLLECTOR. 
 
 5. Notwithstanding such assumed settlement, an action will lie against 
 the sureties of the earlier year for the balance of that year's commitment 
 remaining unaccounted for. Porter v. Stanley, xltii. 515. 
 
 6. A collector, legally qualified, acting within the scope of his powers, 
 under a warrant from competent authority, is protected against all ille- 
 galities but hisfc own. Judkins v. Reed, xltiii. 386. Bethel v. Mason, 
 LV. 501. 
 
 7. And his return is prima facie evidence of the facts therein stated. 
 Judkins v. Reed, xlviii. 386. 
 
 8. If a collector of taxes keeps property seized on his warrant, beyond 
 the time within which it could be legally sold, he thereby becomes a 
 trespasser ah initio; and the owner may replevy it. Brackett v. Vii%- 
 ing, xLix. 356. 
 
 9. A collector of taxes is not justified by his warrant in arresting a 
 person not liable to taxation in the town in which the tax is assessed. 
 Bowher v. Lowell, xlix. 429. 
 
 10. The neglect of the municipal ofiicers to enforce the collection of 
 taxes, and the paying over of the money until some time after the year 
 was out, or to take the tax-bills from the collector, did not release the 
 sureties on the collector's bond. Reojdfield v. Shaver, l. 36. 
 
 11. Where a person was collector of taxes for two successive years, 
 and at the end of the second year proved to be a defaulter, he had aright 
 to appropriate payments made by him to the town to either year, at the 
 time he made each payment; and, if no appropriation was made by 
 either, the law would appropriate such payments to the oldest debts, 
 although the whole deficit is thereby made to fall on the second year. 
 Beadfidd v. Shaver, l. 36. 
 
 12. Where a person was collector of taxes for two successive years, 
 and the sureties on his official bond were not the same the second year 
 as the first, in a suit on one of the bonds for an alleged default, it is for 
 the defendants to show what part of the deficit belonged to each year. 
 Beadfield v. Shaver, l. 36. 
 
 13. Although the proceedings of a town are very irregular and infor- 
 mal, at a meeting where assessors, treasurer, and collector of taxes are 
 elected, and taxes voted to be assessed, yet the collector is legally bound 
 to pay over to the treasurer de facto all taxes voluntarily paid to him by 
 the tax-payers. Trescott v. Moan, l. 347. 
 
 14. Although the collector's bond is inartifically drawn, and is vague, 
 indefinite, and_ uncertain, yet it is not void, if, when taken in connection 
 with the tax-bills and other evidence in the case, it contains sufficient to 
 give it force and validity. Trescott v. Moan, l. 347. 
 
 15. A collector's bond, dated Aug. 15, 1854, reciting that he was 
 " chosen collector of taxes for the year ensuing," it appearing that he was 
 chosen in 1854, that his tax-bills bear date that year, and that he collect- 
 ed that year's taxes, will be deemed to have reference to the municipal 
 year 1854. Trescott v. Moan, l. 347. 
 
 16. A bond obligating the collector " faithfully to discharge his duty 
 as collector," although otherwise defective, is sufficient to hold him to 
 pay over money which he has actually collected, and which in equity be- 
 longs to the town. Trescott v. Moan, l. 347. 
 
COLLECTOE. • oy 
 
 17. A collector of taxes cannot compel payment by suit, except in 
 those cases in which the statute expressly confers that right. Packard 
 V. Tisdale, l. 376. 
 
 18. An action cannot be maintained by a town collector, upon a prom- 
 ise to pay him a tax, in consideration that he will forbear to collect the 
 same in the manner required by law, although by such neglect he becomes 
 liable to account for the tax, and actually pays it to the town. Packard 
 r. Tisdale, l. 876. 
 
 19. A party executing a collector's bond and delivering the same to 
 another, knowing that the penal sum is left blank, must be considered as 
 agreeing that the penal sum may be inserted after he had executed the 
 bond. South Berwick v. Huntress, liii. 89. 
 
 20. R. S. of 1841, c. 14, § 63 (R. S. of 1857, c. 8, § 85^, requiring the 
 collector to give bond, is merely directory ; and the giving of such bond 
 is not a condition precedent to the collector's assuming his official duties. 
 Scarborough v. Parker, liii. 252. 
 
 21. By R. S. of 1841, c. 14, § 71 OR. S. of 1857, c. 3, § 93), collectors 
 are empowered to complete their collections, notwithstanding new col- 
 lectors may have been chosen and sworn. Scarborough v. Parker, liii. 
 252. 
 
 22. Tax-bills, with a legal warrant for their collection, were duly com- 
 mitted to the defendant, chosen collector in 1856, who, thereupon, with- 
 out giving bond, entered upon and continued his official duties until 1862, 
 when, upon request, he voluntarily gave a bond of the latter date, without 
 sureties, to the plaintiffs, reciting that, whereas he had been appointed 
 collector for 1856, conditioned that " if he shall well and faithfully dis- 
 charge all the duties of said office, then said bond to be void, otherwise, 
 &c., Held, (1) That the bond was good at common law ; (2) That it 
 was prospective and covered no past faults or omissions ; and (3) That 
 after a reasonable time an action would lie for non-diligence in its per- 
 formance. Scarborough v. Parker, lhi. 252. 
 
 23. A collector of taxes is estopped by his bond to contest the legality 
 of his election. Bethel v. Mason, lv. 501. 
 
 24. It is no defense to a suit on a collector's bond, that the assessment 
 preparatory to issuing the tax-list, was not signed by the assessors. 
 Bethel v. Mason, lv. 501. 
 
 25. A collector is protected by tax-bills, accompanied with the collect- 
 -or's warrant prescribed by the statute, and signed by the assessors hav- 
 ing jurisdiction. Bethel v. Mason, lv. 501. 
 
 COLT. 
 
 See Attachment, 21. 
 
 COMMERCE. 
 
 See Money. 
 
90 • COMMON SELLEE. 
 
 COMITY. 
 
 See CoEPOEATioiir, 16. 
 
 COMMON" SELLER. 
 
 1. On the trial of an indictment for being a common seller of intoxi- 
 cating liqaors, no evidence of any acts of the respondent committed 
 more than two years before the indictment was found, are admissible. 
 State V. Cofren, xLvm. 364. 
 
 2. Where an offense consists of a succession of acts, the indictment 
 may properly charge that the offense was committed on a given day, 
 " and on divers other days and times between that day and the day of 
 the finding of the indictment," and it will not be bad for duplicity. 
 State V. Cofren, xLvin. 364. 
 
 3. Neither is it fatal to such indictment that the time embraced in the 
 charge commenced more than two years before the indictment was 
 found. State v. Cofren, xlviii. 364. 
 
 4. On the trial of an indictment against a person as a common seller 
 of intoxicating liquors, the instruction to the jury, " that under our pres- 
 ent statutes, no particular number of sales is necessary to be proved to 
 constitute a common seller, but that the jury must be satisfied, from the 
 evidence, that selling intoxicating liquors was her common and ordinary 
 business, and they might be authorized to find the respondent guilty 
 without proof of any particular number of sales," is sufficiently favora- 
 ble for the respondent. , State v. O Conner, xlix. 594. State v. Inness, 
 Lin. 536. 
 
 5. Discussion of the word " common " as applied to and as constituting 
 a part of, an offense. State v. C Conner, xlix. 594. State v. Inness, 
 Liii. 536. 
 
 6. While no person can be twice lawfully punished for the same of- 
 fense, yet he may be twice lawfully punished for the same act, when it 
 constitutes two distinct offenses. State v. Inness, Lm. 536. 
 
 7. Thus a person may be indicted, and convicted of presuming to be a 
 common seller and of keeping a drinking-house and tippling-shop, al- 
 though both indictments cover the same illegal sales and time. State v. 
 Inness, liii. 536. 
 
 8. The unlawful sale of a single glass of intoxicating liquor and per- 
 mitting it to be drunk on the vender's premises, renders him guUty of 
 keeping a drinking-house and tippling-shop ; but to constitute a common 
 seller, the law requires a plurality of sales. State v. Inness, liii. 536. 
 
 See Lease, 18. 
 
COMMUTATION . — COMPLAINT. 
 
 COMMUTATIOlSr. 
 
 91 
 
 1. A town has no authority to raise money to pay the commutation 
 to relieve men drafted or liable to be drafted into the military service. 
 £arhour v. Camden, li. 608. Opinion of the Judges, lh. 595. 
 
 2. If, in the vote of the town raising money for such illegal purpose, 
 there was embraced also a provision for the payment of bounty to men 
 drafted, or their substitutes mustered into the service, c, 221 of the 
 Public Laws of 1864, has made such provision valid ; and as that part of 
 the vote made valid is, without difficulty, separable from that which is 
 illegal, the vote is so far legally operative. Barbour v. Camden, li. 608. 
 
 3. Towns have no authority to pledge their credit to raise money for 
 the purpose of paying commutation. Opinion of the Judges, Lii. 595. 
 
 See Bounty, 1. 
 
 COMPLAINT. 
 
 1. In a complaint for selling intoxicating liquors in violation of law, 
 an allegation, that a glass of liquor sold " was the second glass " sold by 
 the defendant to the same person on the same day, is not descriptive, 
 and it may be rejected as surplusage. State v. Staples, xlv. 320. 
 
 2. A complaint and warrant, in due form, issued by competent author- 
 ity, are a sufficient justification for an officer and his aids in seizing spir- 
 ituous liquors under c. 211 of the Public Laws of 1851. Wall v. Farn- 
 ham, xLvi. 525. 
 
 3. In the allegation of the time when an ofieilBe was committed, the 
 word "year," by force of R. S., c. 1, § 4, rule 11, will be construed as 
 meaning " year of our Lord." State v. Bartlett, xlvii. 388. 
 
 4. In a complaint and warrant for searching a certain place for intoxi- 
 cating liquors kept and deposited for illegal sale, the description of the 
 place to be searched is sufficiently certain, if it be such as would be re- 
 quired in a deed to convey a specific parcel of real estate. State y. Bart- 
 lett, xLvn. 388. 
 
 5. Where the complaintidescribed the premises as formerly owned by 
 A. B., and the warrant as formerly owned by A. A. B., the repugnant 
 words will be rejected as unimportant, if, independent of them, the de- 
 scription given is sufficient clearly to designate the place to be searched. 
 State V. Bartlett, xlvii. 388. 
 
 6. Where intoxicating liquors are alleged in the complaint and warrant 
 to be kept and deposited in a certain " south store," and such liquors are, 
 on search, found in a chamber or second story over the same store, in- 
 structions to the jury that they would judge from the evidence in the 
 case, with their knowledge and experience as practical mea as to how 
 stores on the ground floor and rooms over them are usually used by mer- 
 chants, whether the chamber or second story was in fact a part of the 
 
92 COMPLAINT. 
 
 Store, is erroneous, as susceptible of being construed to authorize the 
 jury to act upon their own knowledge or experience as evidence, btate 
 V. JBartlett, xlvii. 388. 
 
 7. In a complaint that intoxicating liquors are kept at a certain place 
 intended for sale contrary to law, it is sufficient to authorize a forfeiture 
 of the liquors, if it be shown that they are there kept with such intent, 
 although it is not alleged or proved by whom they are intended tor sale. 
 But the person charged aS thus keeping liquors cannot be convicted, un- 
 less it be alleged and proved that they were by him unlawfully deposited, 
 or intended for unlawful sale. State v. Learned, xlvii. 426. 
 
 8. Although a complaint is in the form prescribed in c. 48 of the Pub- 
 lic Laws of 1858, and is therein declared to be " sufficient in law for aU 
 the cases arising under chapter thirty-three to which they purport to be 
 adapted," yet, if it does not describe any offense punishable by c. 33, it 
 cannot be sustained. State v. Learned, XLvn. 426. 
 
 9. Whilst the legislature has power to modify and simplify the forms 
 of criminal process, it cannot make valid and sufficient a complaint or 
 indictment in which the accusation is not "formally, fully, and precisely 
 set forth," so that the accused may know of what he is alleged to be 
 guilty, and be prepared to meet the exact charge against him. State v. 
 Learned, xlvii. 426. 
 
 10. The form of complaint prescribed in c. 48, that intoxicating liquors 
 are kept and deposited for unlawful sale, is not sufficient to authorize the 
 conviction of the person having them in his keeping, without an allega- 
 tion that they are intended by him for sale in this State in violation of 
 law, or deposited and kept by him to be so sold by some other person, or 
 with intent to aid or assist some other person in the unlawful sale there- 
 of. State V. Learned, xlvii. 426. State v. Miller, XLvm. 576. 
 
 11. The allegation, in a complaint, that a person is " an idle, ungov- 
 ernable boy, and a habitual truant," describes no offense under any stat- 
 ute of this State. Lewiston v. Fairfield, XLvn. 481. 
 
 12. A complaint, in no manner alluding to the by-laws of a town, can- 
 not be sustained by virtue of such by-laws. Lewiston v. Fairfield, 
 xLvn. 481. 
 
 13. A complaint, charging the commission of an offense "at said A.," 
 which is immediately before described in said complaint as a city in the 
 county of K., sufficiently alleges that the offense was committed in that 
 county. State v. Baker, l. 45. 
 
 14. The jurat to a complaint for search ^d seizure under c. 33 of 
 Pub. Laws of 1858, containing the name of only one of the witnesses, 
 may be amended after service, by inserting the names of the other wit- 
 nesses which were inadvertently omitted. State v. Smith, liv. 33. 
 
 15. When, upon the trial of a complaint under § 1, c. 130 of the Pub. 
 Laws of 1867, the accused was sentenced only to pay a fine, instead of a 
 fine and imprisonment, he cannot, after payment thereof, recover the 
 same from the magistrate who sentenced him and to whom he paid it. 
 Bragdon v. Somer'by, lv. 92. 
 
 16. Section 14, c. 33 of Pub. Laws of 1858, does not require that the 
 complaint shall allege by whom the intended sale is to be made. Stat& 
 V. Mhler, lvi. 88. 
 
CONDITION. 
 
 93 
 
 17. If a complaint does contain such an allegation, and there be a va- 
 riance between the proof and allegation, it will be an immaterial one. 
 State V. Kaler, lti. 88. 
 
 18. Section 14, as amended by the last clause of § 1, c. 131, of Pub- 
 Laws of 1867, added nothing to the offense described in § 12. State v 
 Kaler, lvi. 88. 
 
 See roEciBLB Entry, &c. 9, 10. 
 Laecbnt, 5. 
 Mills, 28-44. 
 Nuisance, 17, 
 Pauper, 87, 88, 89, 90. 
 
 CONDITION. 
 
 I. WHEN PEECEDBNT, AND SUBSEQUENT. 
 II. GENERALLY. 
 
 L WHEN PRECEDENT, AND SUBSEQUENT. 
 
 1. In a deed, the words "providing they (grantees) fence the land and 
 keep it in repair," create a condition subsequent, which are to be taken 
 most strongly against the grantor, to prevent a forfeiture. Hooper v. 
 Cummings, xlv. 359. 
 
 2. A precedent condition is one which must take place before the es- 
 tate can vest. Hoiiins v. Gleason, xlvii. 259. 
 
 3. A subsequent condition is one which operates upon estates already 
 vested, and renders it liable to be defeated. Robhins v. Gleason, xlvii. 
 259. 
 
 4. Whether conditions are precedent or subsequent depends on the 
 intentions of the parties and the nature of the case. Mobbins v. Glea- 
 son, xlvii. 259. 
 
 5. In a deed of warranty, immediately following the description of the 
 land conveyed, occurred the following provision : " I give the said " 
 grantee "this deed on the following conditions, to wit, the said " grantee 
 " shall maintain myself and my wife for and during the term of our nat- 
 ural lives," &c., Held, that such provision constituted a condition subse- 
 quent, although it contained no express right of reentry. Thomas v. 
 Mecord, xxvn. 500. 
 
 6. For a breach of such condition, the grantor or his heirs may enter 
 and take advantage of the breach. Thomas v. Record, xlvil 500. 
 
 7. Conditions subsequent are not favored in law, and are raised only 
 by apt and sufficient words. Laberee v. Garleton, Lin. 211. 
 
 8. Where the plaintiff agreed in writing with the defendants to keep 
 certain specified roads in good repair, for the term of three years, " to 
 the acceptance and approval of the mayor," &c., such " acceptance and 
 approval " is a condition precedent to a right to recover payment therefor. 
 Veazie v. Bangor, lhi. 50. 
 
94 CONSPIRACY. 
 
 9. The defendant agreed in writing to convey to the plaintiff's intes- 
 tate certain real estate upon payment of certain specified notes given as 
 the consideration therefor. In an action upon the agreement, Held, 
 that the payment of the notes, as they become due, was a condition prece- 
 dent; and that the death of the plaintiff 's intestate did not operate as 
 an extension of the time of payment one year from the date of the death. 
 Simpson v. Pease, liii. 497. 
 
 See Devise, &c., 22. 
 Execution, 12. 
 
 n. GENERALLY. 
 
 10. At common law, none but the grantor, his heirs and legal repre- 
 sentatives, can take, advantage of a breach, of condition subsequent. 
 Hooper v. Cummings, xlv. 359. 
 
 11. When condition is annexed to a particular estate, and afterwards, 
 by another deed, the reversion is granted by the maker of the condition, 
 the condition is gone. Hooper v. Cummings, xlv. 359. 
 
 12. A condition is a qualification or restriction annexed to a convey- 
 ance. Laheree v. (Jarleton, liii. 211. 
 
 13. The words must not only be such as of themselves import a condi- 
 tion, but must be so connected with the grant in the deed as to qualify 
 or restrain it. Laheree v. Carleton, liii. 211. 
 
 14. M. L. conveyed land by deed of warranty to the plaintiff, condi- 
 tioned that, if the grantee " maintained and supported " the plaintiff, &o., ; 
 the deed to be void. Subsequently, M. L., having deceased, the plaintiff 
 conveyed the premises, by deed of quitclaim, to his son M., " in consid- 
 eration of the conditions to be performed for me and mine by " M., 
 " agreeably to the deed of the late M. L. to me." Held, that the claim 
 " in consideration of the conditions," &c., did not constitute a condition 
 of the latter deed, but only a description of the consideration. Ldberee 
 V. Carleton, liii. 211. 
 
 CONFUSIOIsr OF GOODS. 
 See Agency, 31. Teovee, 11. 
 
 COIfSPIRACY. 
 
 1. A conspiracy is a combination of two or more persons, by concerted 
 action, to accomplish some criminal or unlawful purpose, or to accom- 
 plish some purpose, not in itself criminal or unlawful, by criminal or un- 
 lawful means. State Y.Mayberry,:s.Tu-viii. 218. 
 
 2. When the act to be accomplished is in itself criminal or unlawful, 
 it is not necessary to set out in the indictment the means by which it is 
 to be accomplished. State v. Mayberry, xlviu. 218. 
 
CONSTABLE. 
 
 95 
 
 3. When the act is not in itself criminal or unlawful, the unlawful 
 means by which it is to be accomplished must be distinctly set out. State 
 V. Mayherry, xlthi. 218. 
 
 4. Hence, inasmuch as cheating and defrauding a person of his proper- 
 ty are not necessarily criminal at common law, an indictment, charging 
 a conspiracy to cheat and defraud, must set out the unlawful means by 
 which the object was to be accomplished. State v. Mayherry, XLViir. 
 218. 
 
 5. An indictment, distinctly alleging that the defendants conspired to 
 cheat and defraud a person named; that to accomplish the object they 
 made certain representations which are distinctly and formally set out ; 
 that the representations were false and fraudulent, well known by the 
 defendants to be so, and that they were made for the purpose of cheat- 
 ing and defrauding that person, charges a conspiracy, within the strictest 
 definition of the term. State v. Mayherry, XLvm. 218. 
 
 6. An indictment, alleging that the defendantsunlawfully . . . did con- 
 spire, combine, confederate, and agree together, one H. P. to cheat and 
 defraud, " by then and there inducing and procuring said H. P. to sur- 
 render " certain notes, describes the manner in which they agreed to 
 cheat H. P., and does not make a new substantive charge. State v. May- 
 herry, XL VIII. 218. 
 
 7. If conspirators cany out or attempt to carry out the object of the 
 conspiracy, that fact may be alleged in aggravation of the offense, and 
 given in evidence to prove the conspiracy. State v. Mayherry, XLvni. 
 218. 
 
 8. A conspiracy to commit a higher offense, merges in that offense, if 
 committed ; but in case of a conspiracy to commit a crime of the same 
 grade, there is no merger. State v. Mayherry, XLvm. 218. 
 
 9. A conspiracy to cheat by false pretenses is not merged, though the 
 object of the conspiracy be accomplished. State v. Mayherry, xlviii. 
 218. 
 
 10. If two persons conspire together to alter a deed, and thereby to , 
 cheat and defraud another of valuable papers, by obtaining them of him 
 for the altered deed, by false pretenses, and do obtain the deed by false 
 pretenses, the fact, that the alteration so made by them, supposing it to 
 be material, was in fact not material, does not entitle them to an acquit- 
 tal upon an indictment for the conspiracy. State v. Mayherry, xlviii. 
 218. 
 
 CONSTABLE. 
 
 1. The process, under the statute, to obtain damages for flowing land 
 by a mill-dam, is a personal action; and, when the damages demanded 
 do not exceed one hundred dollars, it may be served by a constable. 
 Hall V. Decker, XLvni. 255. 
 
 2. The venires for grand-jurors need not direct the constables in what 
 manner they should notify the meeting in their towns for drawing ju- 
 rors. State V. Clough, xlix. 573. 
 
96 CONSTITUTIONAL LAW. 
 
 3. It is well, although not indispensable, that the constables should 
 state in their returns what notice was given. State v. Clough, xlix. 573. 
 
 4. The burden of proof, that the notice was defective, is upon the one 
 alleging it. State v. Clough, xlix. 573. 
 
 5. A constable may be allowed by the court to amend his return upon 
 the venires according to the facts. State v. Clough, xlix. 573. 
 
 CONSTITUTIOlSrAL LAW. 
 
 I. ORGANIZATION OF THE DEPARTMENTS OF GOVERNMENT. 
 
 II. LAWS AFFECTING CONTRACTS OR VESTED RIGHTS. 
 
 III. EX POST FACTO, AND RETROSPECTIVE LAWS. 
 
 IV. LAWS TO TAKE PRIVATE PROPERTY FOR PUBLIC USES, 
 v. OTHER LAWS AND GENERAL PRINCIPLES. 
 
 L ORGANIZATION OF THE DEPARTMENTS OF GOVERNMENT. 
 
 1. The amendments to the constitution under the resolves of March 
 17, 1855, contain no express abrogation of any of the provisions of that 
 instrument, except as to the mode of filling the oflBces referred to, and 
 the old mode of appointment is not repealed any further than it inter- 
 feres with the practical operation of the mode prescribed in the same 
 amendments. Burton v. Go. of Kennebec, xliv. 388. 
 
 2. Offices which had been filled by executive appointment, and which 
 were afterwards to be filled by vote of the people, under the amendments 
 which became parts of the constitution, before these officers could act by 
 virtue of their election, were properly filled during this interval by exec- 
 
 ^utive authority. Surton v. Co. of Kennehec, xliv. 388. 
 
 See MuEDEK, 2. 
 
 II. LAWS AFFECTING CONTRACTS OR VESTED RIGHTS. 
 
 3. By § 3, c. 271, of the Public Laws of 1856 (R. S., c. 46, § 26), the 
 remedy of a creditor of a corporation against the individual stockhold- 
 ers was, by an action of the case, to be commenced within six months 
 after the rendition of judgment against the corporation. Cummings v. 
 Maxwell, xlv. 190. 
 
 4. That statute affected remedies only, and was not unconstitutional, 
 as impairing the obligations of contracts. Cummings v. Maxwell, xlv. 
 190. 
 
 5. The remedy which creditors of corporatbns have agaiinst the indi- 
 vidual stockholders, for the corporate debts, exists by statute only ; and 
 the legislature may change or restrict it upon preexisting,, as well as 
 upon subsequent, contracts. Cummings v. Maxwell, xlv. 190. Coffin 
 V. Mich, XLV. 507. 
 
 6. Although a charter granted to a corporation is a contract between 
 it and the State, the obligations of which cannot be impaired by subse- 
 
CONSTITUTIONAL LAW. 97 
 
 quent legislation, corporations, like natural persons, are subject to reme- 
 dial legislation, and amenable to general laws. Coffin v. Jtich, xlt. 507. 
 
 7. A statute providing that stockholders in corporations shall be per- 
 sonally liable for the corporate debts is constitutional and valid, so far as 
 it applies to such debts subsequently contracted. Coffin v. JRich, xlt. 
 507. 
 
 8. But, there being no privity of contract between the creditors of 
 corporations and the individual members, they are personally liable only 
 by express provision of the statute ; and the repeal of such a statute 
 does not impair the obligation of any contract.* Coffin v. Rich, xlt. 507. 
 
 9. Legislatures have authority to enact retrospective laws, if they af- 
 fect remedies only ; but such laws, if they impair vested rights or create 
 personal Jiabilities, are unconstitutional and void. Coffin v. Rich, xlt. 
 507. 
 
 10. R. S., c. Ill, § 1, applies to a suit instituted after the passage of 
 the law, but based on a verbal promise made before its passage ; and the 
 provisions of the statute relate, not to the validity of the contract, but 
 to the remedy for a breach of it, and are constitutional. Kingley v. 
 Cousins, XLVii. 91. 
 
 11. Sections 1 and 2 of c. 248 of the Public Laws of 1856, authoriz- 
 ing the bona fide holder of coupons to maintain an action thereon in his 
 own name, do not impair the obligation of the contracts in bonds al- 
 ready issued, but relate wholly to the remedy, and are constitutional. 
 Augusta Bank v. Augusta, xlix. 507. 
 
 12. The legislature, undoubtedly, has constitutional jurisdiction over' 
 remedies ; but after all existing remedies have been exhausted, and rights 
 have been permanently vested, all further interference is prohibited. At- 
 Mnson v. I)unlap, l. 111. 
 
 13. Thus, enactments are found abridging the period of former limita- 
 tions, which are rendered constitutional by a proviso that suits may be com- 
 menced within a certain time after their passage, but none reviving and 
 extending a limitation with such provision. Atkinson v. Dunlap, l. Ill 
 
 14. Marriage is not a contract within the meaning of that clause of the 
 constitution which prohibits the impairing of the obligation of contracts. 
 Adams v. Ralmer, ll 480. Adams v. Hodgkins, li. 480. Adams v. 
 Schwartz, li. 480. 
 
 15. A divorce granted by the legislature is not invalid as impairing 
 the obligation of contracts. Adams v. Palmer, li. 480. 
 
 16. Section 32, c. 33 of the Pub. Laws of 1858, providing that " when- 
 ever an unlawful sale " of intoxicating liquors " is alleged, and a deliTcry 
 proTed, it shall not be necessary to prove a payment, but such deliTery 
 shall be sufficient evidence of sale," is constitutional. State v. Hurley, 
 LIT. 562. 
 
 See CoEPOEATioN, 43. 
 
 Railboad, 38. • 
 
 in. EX POST FACTO, AND EETEOSPBCTIVE LAWS. 
 
 17. Legislatures haTe authority to enact retrospective laws, if they 
 
 * See p. Ill, note- 
 
^8 CONSTITUTIONAL LAW. 
 
 affect remedies only ; but such laws, if they impair vested rights or cre- 
 ate personal liabilities, are unconstitutional and void. Coffin v. Rich, 
 XLT. 507. 
 
 18. A judgment of court becomes final and not reversible, when, by 
 the then existing laws, the time for a review and for reversal on error, 
 has expired; and a statute, such as c. 94 of the Public laws of 1859, de- 
 signed to retroact on such a judgment, by reviving the right of review, 
 is unconstitutional and void. Atkinson v. Dunlap, l. 111. 
 
 IV. LAWS TO TAKE PRIVATE PROPERTY FOE PUBLIC USES. 
 
 19. By R. S. of 1841, c. 81, § 5, in locating railroads, " no corporation 
 shall take any meeting-house, dwelling-house, or public or private bury- 
 ing ground, without the consent of the owner thereof." Held, that the 
 term dwelling-house, as here used, means only the house, and includes 
 no part of the garden, orchard, or curtilage. Wells v. Som. <& Ken. B. H. 
 Co., XLVii. 345. 
 
 20. The right of eminent domain confers upon the legislature author- 
 ity to take private property for public uses, when the public exigencies 
 require it, subject only to that provision of our constitution which exacts 
 just compensation ; and a dwelling-house is no more exempt than any 
 other species of real estate, when the legislature, in the exercise of that 
 right, detei;piines that the public exigencies require it. Wells v. Som. 
 <& Ken. B. B. Co., xlvii. 345. 
 
 V. OTHER LAWS AND GENERAL PRINCIPLES. 
 
 21. The legislature having limited its power over a corporation to the 
 imposition of any other or further duties, liabilities, or obligations than 
 those contained in their charter, is not restricted in any enactment as to 
 the mode, the time when, and the courts where, they shall be enforced. 
 Gowen v. Pen. B. B. Co., xliv. 140. 
 
 22. Free colored male persons, of African descent, of the age of twenty- 
 one years and upwards, having a residence established in some town or 
 plantation in this State three months next preceding any election, and 
 who are not paupers, aliens, nor persons under guardianship, are author- 
 ized, under the provisions of the constitution of this State, to be electors 
 for governor, senators, and representatives. Opinion of the Judges, xliv. 
 
 23. In respect to public corporations, which exist for public purposes 
 alone, like counties, cities, and towns, the legislature, under proper limi- 
 tations, have the right to restrain, modify, and enlarge or change them; 
 providing, however, that property owned by such corporations shall be 
 secured for the us^ of those having an interest in it. N'o. Yarmouth v. 
 SMllings, xlt. 133. 
 
 24. Upon the division of a town, the legislature have constitutional 
 authority to provide that the property, owned by the original town, shall 
 be appropriated or held for the use or enjoyment of the inhabitants of 
 both towns, and to impose upon each town the payment of a share of 
 the corporate debts. .JSFo. Yarmouth v. Shillings, xlv. 133. 
 
CONSTITUTIONAL LAW. 
 
 99 
 
 25. If, upon such division, the original town holds any property, such 
 !is flats, sedge banks, or fisheries, in trust for the use of all the inhabi- 
 tants, the legislature may provide that the original town shall still hold 
 such property in trust for the inhabitants of both towns. JSTo. Yarmouth 
 V. iSkillings, xlv. 133. 
 
 26. Whether the legislature, by dividing the town, without making 
 any such provision, could deprive a part of the inhabitants of their ac- 
 customed use of property so held in trust, qumre. JSTo. Yarmouth v. 
 Skillings, xlv. 133. 
 
 27. It was not an unauthorized exercise of legislative power to render 
 a railroad corporation liable to damages, as was provided by § 5, c. 9, of 
 the Public Laws of 1842, and to require that degree of care that will 
 prevent any such injury as the statute was designed to provide against. 
 And, if any such injury occur, the corporation cannot be regarded as 
 without legal fault. Stearns v. At. <& St. L. B. H. Co., xlvi. 95. 
 
 28. The provisions of c. 243, of the Public Laws of 1852 (R. S. c. 11, 
 § 26), are not unconstitutional ; for, notwithstanding the legislature had 
 conferred upon towns the authority to establish school districts and fix 
 the limits thereof, within their respective towns, its power upon the sub- 
 ject was not thereby exhausted, so that it could not legitimately em- 
 power districts, within a town, to unite, without the consent of the town. 
 Call V. Chadbourne, xlvi. 206. 
 
 29. That part of § 53, c. 80 of R. S. making it criminal, in any of the 
 ofiicers named or referred to therein, to aid and abet any person claim- 
 ing, ari-esting, or detaining any person as a fugitive slave ; and the part 
 of § 4, c. 132, forbidding justices of the peace to aid in the arrest, deten- 
 tion, or surrender of a fugitive slave, are in contravention of § 5, c. 50 of 
 the act of 1850 of the United States ; and that the other parts of said 
 sections, and § 20, c. 79, and § 37, e. 80 of R. S. are not in contravention 
 of any law of the United States, or the constitution thereof. Opinions 
 of the Judges, xlvi. 664. 
 
 30. While the legislature has power to modify and simplify the forms 
 of criminal process, it cannot make valid and sufficient a complaint or 
 indictment in which the accusation is not " formally, fully, and precisely 
 set forth," so that the accused may know of what he is alleged to be 
 guilty, and be prepared to meet the exact charge against him. State v. 
 Learned, xLvn. 426. 
 
 31. It is competent for the legislature to make valid the action of a 
 town which would otherwise be void on account of some informality or 
 technical defect. Mien v. Archer, xlix. 346. 
 
 32. Chapter 379 of the special laws of 1850 authorizing certain cities 
 and towns to grant aid in the construction an d'completion of the Kenne- 
 bec and Portland railroad, is constitutional. Augusta Hank v. Augusta, 
 XLIX. 507. 
 
 33. Under the provisions of article 6 of the amendments to the consti- 
 tution of this State, limiting the power of the legislature to create a State 
 debt, except to suppress insurrection, &c., it is not competent for the 
 legislature to pass an act to equalize the debts of cities and towns, by 
 creating a State debt for the payment of portions of the indebtedness of 
 the local municipalities. Opinion of Justices, liil 587. 
 
 84. A State debt, so enacted, would not be for the excepted purposes, 
 
100 CONTEMPT OF COUKT. 
 
 although intended to pay city and town debts incurred during the war. 
 Opinion of Justices, liii. 587. 
 
 85. As an act to pay the expenditure of municipal coi-porations, to 
 which the State was not a party, over which it had no control, and in 
 the creation and disbursement of which it was not consulted, it would be 
 in plain violation of the constitution. Opinion of Justices, liii. 587. 
 
 36. The law of congress creating national banks and authorizing the 
 shares thereof to be taxed in the city or town where it is located, requires 
 that all such taxes shall be applied for the use and benefit of such city 
 or town, although assessed in part on shares owned in some other city or 
 town. Opinion of Justices, liii. 594. 
 
 37. The assessment and taxation of such shares in any place other 
 than that where the bank is located, would be a clear violation of the 
 act of congress ; and an act of the State legislature authorizing any 
 such taxes, when collected, to be paid by the city or town where the 
 bank is, to that where the stockholder resides, would be an attempt to 
 do indirectly what cannot be done directly. Opinion of Justices, liii. 
 594. 
 
 38. Congress has a right to prescribe and determine what pay and 
 bounty shall be given to a soldier, and to whom, in the case of his death, 
 the arrears shall be paid. Heed v. Reed, liii. 527. 
 
 39. The legislature may constitutionally provide, that the corporate 
 interest which a judge of a police court has in intoxicating liquors for- 
 feited to the city of which he is an inhabitant, shall not be a legal objec- 
 tion to such judge's jurisdiction. State v. Intoxicating Liquors, liv. 564. 
 
 40. By virtue of the constitution of the TJ. S., congress has the ex- 
 clusive power to provide where the evidences of title or registered and 
 enrolled vessels, in certain cases, shall be recorded. Wood v. Stockwell, 
 LV. 76. 
 
 41. The State legislature has no authority, directly or indirectly, to 
 add to or dispense with the requirements of § 1 of the act of con- 
 gress of July 29, 1850, entitled an " act to provide for recording convey- 
 ances of vessels." Wood v. Stockwell, lv. 76. 
 
 42. Chapter 280 of the Pub. Laws of 1864, allowing a person charged 
 with crime to be called as a witness at the trial, " at his own request, but 
 not otherwise," is constitutional. State v. Sartlett, lv. 200. 
 
 CONTEMPT OP COURT. 
 
 1. Contempt of court are of two kinds. Criminal contempts are those 
 committed in the presence of the court, by insulting language, or acts of 
 violence interrupting the proceedings; and such contempts may and 
 should be summarily punished by order of the presiding judge, after 
 such hearing as ^e may deem just and necessary. And. t& Ken. B. M. 
 Co. V. And. JR. B. Co., xlix. 392. 
 
 2. The other class of contempts, which are in a sense constructive, aris- 
 ing from matters not transpiring in court, but by refusing or neglecting 
 
CONTRACT. 
 
 101 
 
 to comply with orders and decrees of the court to be performed else- 
 where, are equally punishable, but by a different and less summary pro- 
 cess. And. <& Ken. M. It. Co. v. And. B. B,. Co., xlix. 392. 
 
 3. The 28th rule of court " for practice in chancery," authorizing sin- 
 gle judges, in cases of contempt by refusing to obey any order or decree 
 of the court, to issue a writ of attachment " returnable at the next term," 
 is to be construed as meaning the next term in the county where the bill 
 is pending, and gives no jurisdiction to the court in any other county, 
 and no special jurisdiction to the judge who may issue it in chambers, 
 as to any further action upon it. And. & Ken. B. JR. Co. v. And. B, B. 
 Co., XLIX. 392. 
 
 4. Where a bill in equity is pending in one county, and an injunction 
 is applied for by the complainant to a judge or court in another county, 
 the writ of injunction is properly made returnable in the county where 
 the bill is pending; and a judge or court in another county has no juris- 
 diction of an alleged contempt caused by disregarding or refusing to 
 obey the injunction. And. & Ken. B. B. Go. v. And. B. B. Co., xlix. 
 392. 
 
 5. In matters of contempt, exceptions may be taken on the question 
 of jurisdiction, where it is distinctly raised and adjudicated upon as mat- 
 ter of law. And. <& Ken. B. B. Co. v. And. B. B. Co., xlix. 392. 
 
 See DiYOECE, 5. 
 
 Pkobate Court, 8, 9, 10. 
 
 CONTRACT. 
 
 I. 
 
 PARTIES TO A CONTEACT. 
 
 II. 
 
 VALIDITY OF A OONTEACT. 
 
 III. 
 
 CONSIDEBATIOK". 
 
 IV. 
 
 EESCISSION. 
 
 V. 
 
 WAIVEE OE DISCHAEGB. 
 
 TI. 
 
 PEEFOEMAJ>rCE OE BEEAGH. 
 
 vn. 
 
 CONSTEUCTION. 
 
 I. 
 
 PAETIES TO A OONTEACT. 
 
 1. A man may not have sufficient intelligence and understanding to 
 manage his affairs and transact business in a proper and prudent man- 
 ner, and yet may not be non compos mentis. Sovey v. Chase, Ln. 
 304. 
 
 2. The law fixes no particular standard of intelligence nedessary to be 
 possessed by parties in making a contract. Hovey v. Chase, lii. 304. 
 
 3. Legal competency in a party to a contract is the possession of men- 
 tal capacity sufficient to transact business with intelligence and an intelli- 
 gent understanding of what he is doing. Kovey v. Chase, lii. 304. 
 
102 CONTEACT. 
 
 II. VALIDITY OF A CONTRACT. 
 
 4. Where both parties to a contract have violated the law in making 
 it, neither party can invoke the aid of the law to repudiate it. Greene 
 V. Godfrey, xliv. 25. 
 
 5. The plaintiff, having an equitable interest in certain real estate, 
 with the consent of the legal owner, sold the same to the defendant for 
 a specified sura, the amount due to the holder of the title to be paid to him, 
 and the balance to the plaintiff. The defendant paid the amount for 
 which the land was held, and received a deed ; the consideration therein 
 named was the sum paid. On the refusal of the defendant to pay the 
 balance to him, the plaintiff brought assumpsit. Held, that the parol 
 agreement of the defendant to pay a further consideration, additional to 
 that expressed in the deed, is binding, and it maybe enforced; and 
 that the equitable interest of the plaintiff, which passed to him with the 
 legal title, was a sufficient consideration for such premise. Pierce v. 
 
 Weymouth, xlv. 481. 
 
 6. A contract, made in violation of a statute, is void ; and it is not 
 rendered valid by the repeal of that statute. JRohitison v. Barrows, 
 XL VIII. 186. 
 
 7. Although a contract, not in writing, for the sale of land, is within 
 the statute of frauds, and cannot be legally enforced ; it, nevertheless, is 
 morally binding, and for the purposes of justice and equity may, in some 
 cases, be upheld. Gammon v. Butler, xlyiii. 344. 
 
 8. A contract to sell all one's " apparatus for making soap, all ashes 
 and soap on hand, . . . also all his trade and customers," is not against 
 the policy of the law ; and, if it were, the party selling should not be 
 permitted to make that defense to an action for breach of the contract, 
 while he retained the consideration paid. Warren v. Jones, li. 146. 
 
 9. To constitute a contract, there must be a proposition by one party 
 accepted 'by the other without any modification whatever. Jenness v. 
 Mt. Hope I. Co., Lni. 20. Maynard v. Tabor, liii. 511. 
 
 10. An intention to accept a proposition is not an acceptance, unless 
 communicated to the party making it. Jenness v. Mt. Hope I. Co., liu. 
 20. 
 
 11. A contract, required by the statute of frauds and peijuries to be in 
 writing, in order to be binding, can receive no aid from parol evidence. 
 Jenness v. Mt. Hope I. Co., liii. 20. 
 
 12. A written offer to sell land for cash can never be accepted so as to 
 create a legal obligation to sell on the part of the owner, unless the ac- 
 ceptance is accompanied by a tender of the price. Maynard v. Tabor, 
 LHL 511. 
 
 13. In reply to a letter from the plaintiff inquiring the lowest cash 
 price of a lot of land owned by the defendant, the latter wrote the for- 
 mer, "having fixed a price on my lot, agreeably to promise, I inform thee 
 that T put it at $3000 cash ; " to which the plaintiff rejoined by letter 
 that he would take the land at the price named, and that the defendant 
 might send the deed to his agent to whom he would pay the money and 
 receive the deed. To this the defendant replied, " I have withdrawn my 
 lot from sale." Held, that the plaintiff's letter agreeing to take the land 
 at the price named, unaccompanied by tender of the price, was not 
 an acceptance of the defendant's proposition to sell, but a new proposi: 
 
CONTRACT. 
 
 103 
 
 tion containing conditions different from those implied in the defendant's 
 offer; and that until a tender was made, the defendant might withdraw 
 his offer. Maynard v. Tahor, liii. 511. 
 
 14. Generally the legality of contracts is to be determined by the law 
 of the place where they are made. 3Ieservey v. Gray, lv. 540. 
 
 15. A written promise to pay a specific sum to, and save harmless 
 from the post-ofRce department, a mail contractor, in consideration that 
 he will repudiate his accepted proposal for carrying the mail on a speci- 
 fied route, is illegal. IVeld v. Lancaster, lvi. 453. 
 
 16. Such a contract cannot be enforced, although the government had 
 a sufficient guaranty, and was not pecuniarily injured by the repudia- 
 tion. Weld V. Lancaster, lvi. 453. 
 
 See Appbenticb and Appebntioeship, 2. Assumpsit, 9. 
 
 CONTEACT, 32. 
 
 III. CONSEDEEATIOX. 
 
 17. An agreement to abandon a claim without consideration shown, is 
 & m&cB nicdum pactum. Accord, without satisfaction, would be no an- 
 swer; and if a substituted agreement be shown, it must appear that its 
 performance was accepted in satisfaction. Gushing v. 'Wyman, xliv. 
 121. 
 
 18. If the defendant in a suit at law, at the request of a third person, 
 permits the latter to assume the defense, upon a promise of such third 
 person to indemnify him and pay all costs recovered against him, such a 
 promise is not void for want of consideration. Goodspeed v. Fuller, 
 XL VI. 141. 
 
 19. A., being indebted to B., 0. verbally j)romised B. to pay him the 
 amount, and charge it to A., without the consent of the latter. Held, 
 that B., not having released or assigned his debt, the promise was with- 
 out consideration. Richardson v. Williains, xlix. 558. 
 
 20. The directors of a railroad company in failing circumstances, agreed 
 in writing with its president, that if he would indorse for the company 
 for an amount not exceeding sixty thousand dollars, they would sever- 
 ally indemnify him in the " proportions, set against their names." The 
 total of the various sums subscribed was 138,000, while the liability as- 
 sumed by the president was 140,000. In an action on the contract 
 against one of the signers. Held, that the assumption of liability was a 
 sufficient consideration for the contract of indemnity. Williams v. Ha- 
 gar, l. 9. 
 
 21. Where one of the defendants had agreed in writing to pay the 
 debt of another, and the other defendant in a postscript, subscribed by 
 him, added, " I will be accountable with A., according to the above writ- 
 ing," Held, that the discontinuance of an action by the plaintiffjjagainst 
 a debtor, and another as his trustee, in which there was 'a reasonable 
 prospect of charging the trustee, was a suflicient consideration for the 
 promise. Gastner v. Slater, l. 212. 
 
 22. The plaintiff, in consideration of $700, conveyed to the defendant's 
 trustee a house worth $1800, to which the grantee added an L ; and, fif- 
 teen months thereafterward, the grantee gave to the plaintiff a certifi- 
 
104 CONTRACT. 
 
 cate that he "will let" the plaintiff "have" said house "by his paying 
 him within $100 what it cost him ; " and the granter devised said house 
 by will to the defendant ; and the defendant, subsequent to the death of 
 the testator, conveyed said house by his quitclaim deed to another. 
 Held, that, in an action against the executors of the granter to recover 
 damages for not conveying said house in accordance with said certificate, 
 the presiding judge properly ordered a nonsuit. Vantassel v. Hathaway, 
 LHI. 18. 
 
 23. If a debtor, having funds in the hands of his agent, verbally or- 
 ders him to pay a creditor, and the agent promises to execute the order, 
 and the creditor accepts and relies upon the agent's promise, the funds 
 in the agent's hands are a sufficient consideration for his engagement 
 which is to be considered an original undertaking. Goodwin v. J5ow- 
 den, Liv. 424. 
 
 See Action, 22. 
 
 Assignment, 24. 
 Contract, 5. 
 
 IV. EESCISSION. 
 
 24. Where there is no defense to a note transferred in payment of 
 property sold and delivered, and where it may be enforced in the name 
 of the payer, for the benefit of the holder, there exists no valid and suffi- 
 cient reason for rescinding the contract of sale. Gushing v. Wyman, 
 XLIV. 121. 
 
 25. Every breach of a special contract by one party does not autlior- 
 ize the other to treat it as rescinded ; but if the act of one party be such 
 as necessarily to prevent the other from performing on his part, accord- 
 ing to the terms of the agreement, the contract may be considered as 
 rescinded by the other. Wright v. Haskell, xlv. 489. 
 
 26. In an action to recover back a part of the consideration paid for 
 a quantity of lumber, on the ground that it fell short of the quantity 
 agreed to be delivered, it is not necessary for the plaintiff, first to offer 
 to rescind the contract, or to restore that which has been delivered. 
 Gushing v. Mice, xlvi. 303. 
 
 See Contract, 40, 41. 
 Fraud, 18, 46. 
 
 V. WAIVER OK DISCHAKGE. 
 
 27. Where one of two joiijt debtors has been discharged, by a release 
 not under seal, from his share of the debt, though for a sufficient consid- 
 eration, such discharge is no defense to either in an action against both. 
 Drinkwater v. Jordan, xlvi. 432. 
 
 28. If the debtor, thus discharged, should be afterwards molested on 
 account of the debt, his remedy would be by an action founded upon a 
 breach of the contract of discharge. Drinkwater v. Jordan, xlvi. 432. 
 
 29. A. contracted with a corporation to build a railroad for $287,000, 
 80 per cent to be paid monthly on estimates of the work done, and $75,- 
 000 of the whole sum, including the 20 per cent reserved, to be paid in 
 stock, time of payment not stipulated. A. abandoned the contract with- 
 
CONTRACT. 
 
 105 
 
 out completing it, and the company was summoned as his trustee. Held, 
 that the company had a right to deliver an amount of stock proportioned 
 to the work done, and did not waive that right by making full payment 
 for several months in cash. Harris v. Som. c5 Ken. H. R. Co., xlvii. 
 298. 
 
 30. Where the plaintiff agreed in writing with the defendants to 
 keep certain specified roads in good repair, for the term of three years, 
 "to the acceptance and approval of the mayor and the joint standing 
 committee on streets and highways, for the time being," the use of the 
 roads by the public is no acceptance or waiver on the part of the defend- 
 ants. Veazie v. Bangor, liii. 50. 
 
 VI. CONSTETJCTION. 
 
 (a) Dependent and independent stipulations. 
 
 (b) PAKTICtTLAE AGREEMENTS. 
 
 (o) In qenekal. 
 
 (a) Dependent and independent sti2:>ulations. 
 
 31. Where the directors of a railroad company agreed in writing with 
 their president, that if he would indorse for the company for an amount 
 not exceeding sixty thousand dollars, they would severally indemnify 
 him in the " proportion set against their names ; " and he verbally con- 
 tracted to indorse to the amount of sixty thousand dollars, Held, that 
 these agreements constituted two mutually dependent contracts, one 
 verbal, the other written. WiUiams v. Hagar, l. 9. 
 
 (b) Particular agreements. 
 
 32. The plaintifi" had a contract for carrying the mail four years, which 
 together with his stage, he sold to the defendant and one D., taking 
 therefor their promissory note now in suit. The parties mutually agreed 
 that the plaintifi" might collect the quarterly payments accruing on said 
 contract, and apply the same to the note. Held, that this fund was 
 thereby set apart for that purpose; and that any subsequent agreement, 
 between the plaintiff and one only of the makers of the note, to appro- 
 priate the quarterly fund differently, was void ; and that the sums, as 
 they were collected, quarterly, by the plaintiff, operated as payments 
 upon the note. Stackpole v. Keay, xlv. 297. 
 
 . 33. A. and B. owned a horse in common. B. took it under an agree- 
 ment to return with the horse the next week, and either buy A.'s half or 
 sell A. his half, but failed to meet his agreement. Held, that there was 
 not a sale or purchase of one-half, but a mere verbal agreement to trade. 
 
 Whitmore v. Alley, xlvi. 428. 
 
 34. Where A. contracted with a corporation to build a railroad for a 
 gross sum, to be paid monthly as estimates of the work done should be 
 made, with a proviso that $29,000 of the whole sum should be for land 
 damages, to be paid and settled by the corporation without unnecessaiy 
 delay, so much of the land damages as had been actually paid by the 
 corporation before being summoned as trustee of A., is to be allowed as a 
 payment to A. The unsettled balance cannot be treated as paid to A., 
 
106 CONTRACT. 
 
 although long previously charged to him by the corporation. Harris 
 V. Som. S Ken. JR. JR. Oo., xlvii. 298. 
 
 35. In a contract between A., " of the one part," and B., C, and D. " of 
 the other part," in which A. agrees to build a vessel of certa,in dimen- 
 sions, and B., C, and D. to pay certain suras at stipulated times for eleven- 
 sixteenths of the vessel, the liability of the parties of the second part is 
 joint and not several. Iii2}ley v. Crocker., xlvii. 370. 
 
 36. And words set against the signatures of B., C, and D.,_ indicating 
 the proportional share of each in the vessel, will not affect their joint lia- 
 bility, nor vary the construction of the contract. JRipley v. Crooker, 
 XLVII. 370. 
 
 37. Payments made by one of the part-owners toward his share, and 
 receipted for as such by the builder, the receipts not being under seal, 
 will not sever the indebtedness, nor afiect tlieir joint liability for a bal- 
 ance unpaid. JRipley v. CrooJcer, xlvii. 370. 
 
 38. A contract of guaranty, by which a debtor was, within a specified 
 time, to pay a certain execution, " or cancel it in some other way," or 
 deliver to the officer certain property, will be construed to mean, that 
 the cancellation shall be in a manner satisfactory to the creditor. JKon- 
 roe V. JMattlvMs, xlviii. 555. 
 
 39. It is no good ground of defense, to an action on the contract, that 
 the officer refused to offset an execution recovered in favor of the debtor 
 in the former execution and against the creditor of the same. If his re- 
 fusal was unjustifiable, the remedy, for the injured party, is against the 
 officer. JMJonroe v. MattJiews, xlviii. 555. 
 
 40. The defendants agreed with the plaintiff to convey to him one- 
 sixteenth of a ship, upon the payment of certain notes, and that the 
 earnings of the one-sixteenth should go to him. The plaintiff failed to 
 pay the notes, and the contract was rescinded by the parties on that ac- 
 count. JHJeld, that the plaintiff could not recover for earnings if it ap- 
 peared that at the time of the rescission there were no net earnings, al- 
 though there had previously been. JRankins v. Treat, xlix. 210. 
 
 41. Where A. agreed to purchase part of a vessel of B., paid part of 
 the money, and received a contract that, when certain other payments 
 were made, he should have a conveyance, and, in the mean time, have the 
 earnings of the part in question ; and the vessel, proceeding on a voy- ' 
 age was successful at first, but afterwards unsuccessful ; A., having at last 
 failed to make his payments, cannot claim the earnings for the first part 
 of the voyage, on the ground that it was prior to the breach of his con- 
 tract, if the parties have treated the transaction as an entirety, and the 
 contract was not rescinded until the end of the voyage, when there were 
 not net earnings to be divided. JRankins v. Treat., xlix. 210. 
 
 42. The directors of a railroad company, in failing circumstances, agreed 
 in writing with its president, that if he would indorse for the company 
 for an amount not exceeding sixty thousand dollars, they would several- 
 ly indemnify him in the "proportions set against their names." The 
 president, without signing the agreement, verbally agreed to indorse the 
 above amount. The total of the various sums subscribed was thirty- 
 eight thousand dollars, the liability assumed by the president was forty 
 thousand dollars. In an action on the contract against one of the sign- 
 ers, JEeld, that the contract being perfect in itself, in the absence of any 
 parol proof explaining it, the directors would be liable for the full amount 
 
CONTKACT. 
 
 107 
 
 of his subscription ; that parol testimony having been admitted without 
 objection, showing that the plaintiff verbally contracted to indorse to the 
 amount of sixty thousand dollars, these agreements constituted two mutu- 
 ally dependent contracts, one verbal, the other written ; that under the 
 two contracts, the plaintiff having performed in part, was, in the same 
 proportion, entitled to be indemnified. Williams v. ITagar, l. 9. 
 
 43. In such case, as no particular mode of indorsing the notes was in- 
 dicated, signing on the back as guarantor, was an indorsement within the 
 terms of the contract. Williams v. Hagar, l. 9. 
 
 44. Money raised on his own private securities, with which he paid 
 the debts of the company, although equally advantageous to the com- 
 pany, the directors would not be liable for, not being within the form of 
 the contract. WiUiam,s v. Hagar, l. 9. 
 
 45. Otherwise, where he had taken the notes of the company payable 
 to himself, for money so paid by him, negotiated them and paid them as 
 indorser. Williams v. Hagar, l. 9. 
 
 46. The plaintiff sued a judgment against S. and trusteed K., where- 
 upon the defendants agreed in writing to become accountable to the 
 plaintiff for the amount of the judgment, and to pay whenever S.'s mon- 
 ey should be paid by K. K., subsequently, with S.'s consent, gave his 
 promissory note for the amount to another person, and took S.'s receipt 
 for the money. Held, that in legal contemplation, this was a payment 
 to S., by which the defendants' promise became absolute. Castner v. 
 Slater, l. 212. 
 
 The plaintiff agreed in writing with the defendant, to saw for him a 
 certain quantity of logs "as fast as they came into the boom and can be 
 sawed," at a specified sum per M feet, " to be sawed this season." The 
 defendant therein agreed to the price named, and that the plaintiff should 
 " have all the slabs." In a suit by the plaintiff for damages occasioned by the 
 non-delivery of a portion of the logs to be sawed. Held, that it was not 
 optional with the defendant to deliver a part only of the logs, if the 
 whole came into the boom; but that it was obviously implied by the 
 terms of the contract, that the whole number named therein should be 
 delivered. Whidden v. Belmore, l. 357. 
 
 48. The defendant sold plaintiff all his " apparatus for making soap, 
 . . . also all his trade and customers." Held, that the latter clause must 
 be legally interpreted, that the defendant would not interfere with the 
 plaintiff within the circuit of his usual custom. Warren v. Jones, li. 
 146. 
 
 49. In a contract for the purchase of " timber," the purchaser acquires 
 no title to trees not suitable for any purpose but for firewood. Nash v. 
 Drisco, LI. 417. 
 
 50. Where A. entered into a written contract, in May, 1853, to build a 
 house in accordance with certain specifications, at an agreed price, to be 
 completed on or before September following ; and he did nothing but 
 make the doors until the fall of 1857 ; when another written contract was 
 made materially different from the former in regard to the specifications, 
 consideration, rights and duties of the parties, containing stipulations in- 
 consistent with those of the former, but complete in itself. Held, that 
 the latter contract cannot be construed as a supplement to the former, 
 but as a new and independent contract; and a mechanic's lien secured 
 upon the house could not refer back to the former. Oocheco Bank v. 
 Berry, lii. 293. 
 
108 CONTRACT. 
 
 51. When parties to a contract of a sale of logs mutually select a sworn 
 surveyor to determine the quantity of each particular quality thereof, 
 who thereupon makes a survey and renders his certificate thereof, his de- 
 cision of the subject-matter is, in the absence of fraud and unfair prac- 
 tice by the party claiming to uphold it, conclusive upon the parties. 
 Berry v. JReed^ Lin. 487. 
 
 52. In the event of his failure to faithfully " do and perform each and 
 every condition and stipulation expressed in " a certain license and agree- 
 ment, for carrying on a lumbering operation upon the plaintiflT's land, the 
 defendant bound himself in writing to the plaintiff " in the full and 
 liquidated sum of $1000, over and above the actual damages which the 
 plaintiff might sustain by reason of such non-performance," Sdd, that 
 the sum named was liquidated damages, and recoverable. Dwind v. 
 Brown, Liv. 468. 
 
 53. By a sealed instrument, signed by both parties, the plaintiff con- 
 veyed to the defendants' testate, certain timber as security for the for- 
 mer's indebtedness to the latter, and stipulated that, if the plaintiff paid 
 such indebtedness according to its terms, the defendants' testate would 
 "transfer" said timber and " whatever proceeds thereof" he might there- 
 after receive, to the plaintiff, discharged of all claims; that, if the indebt- 
 edness was not paid as stipulated, the defendants' testate might " sell and 
 dispose of so much of said timber as shall pay and reimburse him," that, 
 when paid by a sale of a portion of the timber, the defendants' testate 
 should " transfer all the timber undisposed of, free from all claims." In 
 trover for selling more of the timber than was necessary to discharge the 
 plaintiff's indebtedness. Held, that an action on the contract is the prop- 
 er remedy. Ooddard v. Coe, iv. 385. 
 
 54. A naked verbal promise to return, in good order and at a specified 
 time, a thing hired, does not, as matter of law, import a contract on the 
 part of the hirer to insure it against loss occurring without his fault. 
 Field V. Brachett, lvi. 121. 
 
 See CoEPOBATiosr, 54. 
 
 (c) In general. 
 
 55. The meaning of a written contract is to be ascertained from its 
 terms. Sylvester v. Staples, xlit. 496. Richardson v. Maine Ins. Co., 
 XLVi. 394. Gocheco Bank v. Berry, Ln. 293. 
 
 56. Parties to all contracts in writing are supposed to have the inten- 
 tions which are clearly manifested by the terms thereof. Bichurdson v. 
 Maine Ins. Co., xlvi. 394. 
 
 57. If parties contract to deliver and receive goods as money, the 
 court will treat them in the same manner. Kneeland v. FuUer, li. 518. 
 
 58. When one agrees to sell, and another to buy articles, at a specified 
 price, and no credit is stipulated for, the delivery of the goods and the 
 payment of the price are to be simultaneous and concurrent acts. Mer- 
 rill V. Stanwood, lii. 65. 
 
 59._ The effect of a subsequent contract upon a preexisting one is a 
 question for the court to determine from their tei-ms. Gocheco Bank 
 V. Berry, lii. 293. 
 
CORPOEATIONS. 109 
 
 60. If the provisions of the second contract were only additional to 
 those of the first, and not inconsistent and irreconcilable therewith, they 
 might be treated as one. Gocheco Bank v. Berry, lii. 293. 
 
 61. But when two contracts of different dates, made upon the same 
 subject-matter, cannot be reconciled without rejecting some of the ma- 
 terial stipulations in the one or the other, or in both, effect will be given 
 to such one of the contracts as the intention of the parties shall seem to 
 require. Cocheco Bank v. Berry, lii. 293. 
 
 62. If a former contract is to be revived, simply because it may have 
 become obsolete, it need not be rewritten; but the time of performance 
 only changed. Cocheco Bank v. Berry, lii. 293. 
 
 63. If the latter contract contain new stipulations which are inconsis- 
 tent with those in the former, it cannot be considered a complement. 
 Cocheco Bank v. Berry, lii. 293. 
 
 64. A contract is to be construed according to the law in force when 
 it is made ; the mode of enforcing it according to the law, when the 
 remedy is sought. Hathom v. Calef, liii. 471. 
 
 See Railroad, 52. 
 
 CONTEIBUTIOISr. 
 
 See AssTTMPSiT, 27. Bills, &c., 171. 
 
 CONVERSION. 
 
 See Teovbe. 
 
 COPARTNERSHIP. 
 
 See Paetneeship. 
 
 CORPORATIONS. 
 
 I. TEANSFEE AND SALE OF SHARES, 
 
 n. COEPOEATE POWBES, EIGHTS, AND LIABILITIES, 
 
 m. EIGHTS AND LIABILITIES OF OFFICEES AND M.BMBEES. 
 
 IV. PLEADINGS AND EVIDENCE. 
 
 L TEANSFBE AND SALE OP SHAEES. 
 
 1. Shares of stock in an incorporated company were conveyed by the 
 plaintiff to the defendant as collateral security for a debt which was af- 
 
110 CORPOEATtONS. 
 
 terwards paid. The shaves, while yet standing in the defendant's name, 
 were assessed by virtue of an act of the legislature, and, for non-pay- 
 ment of the assessment, were sold at auction and struck off to the de- 
 fendant. Jleld, that the defendant holding the shares as trustee could 
 not bid them off, and that the sale was not valid. Freeman v. Harwood, 
 xLix. 195. • 
 
 See Bank, 1, 4, 5, 6, 10, 15, 16, 17, 18. 
 
 II. COEPOEATE POWEES, EIGHTS, AND LIABILITIES. 
 
 2. 'No action can be maintained against a railroad corporation for in- 
 juries by acts done in conformity with law, unless the corporation has, in 
 some way, forfeited its chartered rights, or the charter remedy has been 
 richtfully modified by some statute so as to authorize such suit. Gowen 
 vTl'en. B. B. Co., xliv. 140. 
 
 3. Chapter 41, § 5, of the Public Laws of 1853, does not touch any of 
 the vested legal rights, or add to the legal obligations and liabilities of 
 the Pen. R. R. Company, and is not in conflict with any of the provis- 
 ions of its charter. Gowen r. Ben. JR. It. Co., xliv. 140. 
 
 4. Where, under the charter, the defendants took the plaintiff's land 
 and duly located and filed the location of their road, in December, 1852, 
 and neither party applied to have the damages assessed within the time 
 prescribed by the statute, Held, that under c. 41, the plaintiff may 
 maintain trespass against the defendants for damages. Gowen v. Pen. 
 B. B. Co., XLIV. 140. 
 
 5. Although a charter granted to a corporation is a contract between 
 it and the State, the obligations of which cannot be impaired by subse- 
 quent legislation, corporations, like natural persons, are subject to reme- 
 dial legislation, and amenable to general laws. Coffin v. Bich, xlv. 507. 
 
 6. The South Kennebec Agricultural Society is an aggregate corpora- 
 tion, distinguishable from quasi corporations, in several essential partic- 
 ulars ; and, like an individual, is responsible for injuries resulting from a 
 want of ordinary care and foresight; but the liability is corporate, to 
 satisfy which only corporate property can be levied upon. Brown v. 
 So. Ken. Ag. Society, xlvii. 275. 
 
 7. The power of corporations to pass title to land by vote is anoma- 
 lous, and limited to the single case of proprietors of land, and as to them 
 rests entirely upon statute grant. Cary v. Whitney, xlviii. 516. 
 
 8. The agent of a corporation may have authority to transfer a note 
 payable to the corporation by indorsement, but no authority to bind the 
 corporation as indorser. And the authority may be shown by other 
 evidence than the by-laws. Brown v. Donnell, xlix. 421. 
 
 9. Where the directors of a corporation had, by vote, authorized the 
 treasurer to procure a " seal for the company, bearing the title of the cor- 
 poration with the year of its charter," and scrip duly authorized and 
 signed, bore a printed impression of the seal with the title and date of 
 charter inscribed, and contained the words, " In testimony of which . . . 
 the seal of said company ... is hereunto affixed," &c., Held, such scrip 
 was under the corporate seal, and that an action of covenant broken 
 may be maintained thereon. Woodnrmn v. Yorh & C. B. B. Co., l. 549. 
 
COUPOKATIONS. 
 
 Ill 
 
 10. At common law, " the impression of a seal is not a seal ; but, 
 under the present statutes, bonds issued by a corporation impressed with 
 a seal, declared on their face to be sealed, and accepted as such by the 
 holders, are deemed to be under the corporate seal. Woodman v. Yor/c 
 & 0. B. B. Co., L. 549. 
 
 11. When the charter of a corporation is made subject to the liabili- 
 ties and duties provided in a former general statute, it seems that the 
 general statute does not thereby become a private one so far as the cor- 
 poration is concerned. Hathorn v. Calef, liii. 471. 
 
 12. The judgment of another State, decreeing a dissolution, and ap- 
 pointing receivers to close up the affairs, of a corporation created by its 
 laws, will not prevent an action commenced against such corporations 
 here, prior to such dissolution, from proceeding to judgment, unless it be 
 shown that the corporation is utterly extinct. Hunt v. Columbian Ins. 
 Co., Lv. 290. 
 
 13. It is not sufficient to show that, by the law and usage in the court 
 of the State where such dissolution is decreed, such corporation is perma- 
 nently dissolved, although it still has a qualified existence, capable of be- 
 ing a party to a judgment there. Chase v. Columbian Itis. Co.,lv.290. 
 
 14. The legal authority of receivers duly appointed in another State, 
 is coextensive with the jurisdiction of the court by which they are ap- 
 pointed. Hunt V. Columbian Ins. Co., lv. 290. 
 
 15. Comity does not require the S. J. Court of this State to permit 
 receivers appointed by the court of another State to exercise privileges 
 detrimental to our own citizens, while pursuing appropriate legal reme- 
 dies here. Chase v. Columbian Ins. Co., lv. 290. 
 
 See Amendment, 14, 15, 16, 17. 
 Bridge. 4, 5. 
 Const. Law, 21. 
 
 MoBTliAGE, 11. 
 
 Railroad, 4, 5, 36, 37, 38, 39, 40. 
 
 III. EIGHTS AND LIABILITIES OF OFFICERS AND MEMBERS. 
 
 16. The facts necessary to render a stockholder liable may as well be 
 ascertained and certified upon the second execution as the first. Whit- 
 ney V. Ham/mond, xliv. 305. 
 
 17. There being no privity of contract between the creditors of corpo- 
 rations and the individual members, they are personally liable only by 
 express provisions of statute ; and the repeal of such a statute does not 
 impair the obligation of any contract. Coffin v. Bich, xlv. 507. * 
 
 18. The right of the creditor against any of the individual stockholders 
 is not vested until he recovers his judgment against them. Coffin v 
 Bich, XLV. 507.* 
 
 *" A State statute repealing a former statute, wMch made the stock of stockhold- 
 ers in a chartered company liahle to the corporation's dehts, is, as respects creditors 
 of the corporation existing at the time of the repeal, a law impairing the obligation 
 of contracts, and void. And this is so, even though the liability of the stock is in 
 some respects conditional only; and though the stockholder was not made by the 
 statute repealed, liable in any way, in his person or property generally, for the cor- 
 poration's debts." Hathorn v. Cote/, 2 Wall., 10. 
 
112 CORPOEATIONS. 
 
 19. The Act of 1841, repealed c. 572 of the Public Laws of 1836. The 
 act of 1841 was repealed by o. 271 of the Public Laws of 1856, excepting 
 from the operation of the repeal only "suits and processes pending under 
 or by virtue of the act repealed." Coffin v. Rich, xlt. 507. 
 
 20. ]N"o persons, except those who had already recovered judgments 
 against stockholders, and those whose actions had then been commenced, 
 can any longer invoke its aid. Coffin v. Bich, xlt. 507. 
 
 21. Hence, where the plaintiffs, in March, 1857, recovered judgment 
 against the Ken. & Portl. R. R. Co., on a debt contracted in 1855 ; and the 
 defendant was, at that time, and ever since has been, a member of said 
 company ; and the plaintiffs, being unable to find corporate property to 
 satisfy their judgment, legally instituted proceedings against the defend- 
 ant, complying with all the necessary statute proceedings, Sdd, that 
 the repeal of c. 76 of R. S. of 1841 by c. 271 of the Public Laws of 1856, 
 took away the liability of the defendant to the plaintiffs. Coffin v. Bich, 
 XLV. 507.* Carroll v. Hinkley, xlvi. 81. 
 
 22. Where an officer, having an execution against a corporation,- has 
 notified a stockholder of his intention to levy on his individual property, 
 unless he shows him corporate property to satisfy the debt, the creditor 
 or officer need not give a further and distinct notice of an intention to 
 commence an action, before instituting a suit. Ingalls v. Cole, xivii. 
 530. 
 
 23. Although the creditor of a corporation who first moves in con- 
 formity to law, to fix the liability of a stockholder, acquires a priority of 
 right, which cannot be defeated by tbe stockholder or other creditor who 
 may first obtain a judgment or execution, yet the facts, that a creditor 
 has acquired such priority of right, or that suits have been instituted 
 and are pending on such prior claims, are not a sufficient defense to a 
 suit by another creditor, without evidence that the liability of the stock- 
 holder has been legally established, without fraud, to an amount which 
 exhausts it. Ingalls v. Cole, xlvii. 530. 
 
 24. The fand arising from the "individual liability of the stockholder 
 belongs to the first creditors of the corporation who establish their rights 
 to it by proceedings which terminate in fixing the liability. Ingalls v. 
 Cole, XLvn. 530. 
 
 25. "Whether a stockholder may make a payment, in good faith, to 
 creditors who have first fixed his liabilities by the necessary steps, to an 
 amount sufficient to exhaust the fund, without levy or suit brought, 
 quaere. Ingalls v. Cole, xlvii. 530. 
 
 26. "When the debt of a corporation is settled by its negotiable note, 
 and that note, when due, is taken up by another note, and nothing ap- 
 pears to show the intention of the parties, the date of the second note 
 must be treated as the time when the indebtedness of the corporation 
 accrued so far as relates to the liability of its stockholders. Milliken v. 
 
 Whitehouse, xlix. 527. 
 
 27. A judgment against a corporation is binding upon the stockhold- 
 ers until reversed, and is conclusive upon them in a subsequent action 
 against them by the same plaintiff. Milliken v. 'Whitehoitse, xlix. 527. 
 
 28. R. S. of 1841, c. 76, § 18, was repealed by c. 169 of the Public 
 
 ,.* See ante, p. Ill, note. 
 
CORPOEATIONS. 
 
 113 
 
 Laws of 1855 ; and it seems that by this repeal, § 30 of c. 76 is rendered 
 ineffectual. Milliken v. Whitehouse, xlix. 527. 
 
 29. Manufacturing corporations do not come within the provisions of 
 c. 271 of the Public Laws of 1856. Milliken v. Whitehouse, xlix. 527. 
 
 30. Chapter 109 of the Public Laws of 1844 (which was not repealed 
 by c. 271 of 1856), applies to manufacturing corporations. Millihen v. 
 
 Whitehouse, xlix. 527. 
 
 31. The liability of stockholders under c. 109 of 1844, is restricted by 
 c. 271 of 1856, to the amount of their stock. Milliken v. Whitehouse, 
 XLIX. 527. 
 
 32. By § 2 of the "Repealing Act" in the Revised Statutes of 1867, 
 liabilities which had accrued by force of previous statutes were preserved, 
 and can still be enforced. Milliken v. Whitehouse, xlix. 527. 
 
 33. A return by the officer, that he " cannot find corporate property," 
 &c., is all that was required by R. S. of 1841, c. 76, § 18. Hathorm v. 
 Galef, Lin. 47 L 
 
 34. And a certificate that he " made diligent search " before his return 
 is a sufiicient compliance with the provision that he must " first ascer- 
 tain." Hathorn v. Galef, liii. 471. 
 
 35. The statute does not require, in this respect, the certificate of any 
 officer besides one in the county where the Stockholder resides, although 
 the road of the corporation extends through more than one county. 
 Hathorn v. Calef, liii. 471-. 
 
 36. Nor is the officer required to go out of his precinct; but when he 
 makes a return, it will be understood that whatever he did was done in 
 his own county, unless the contrary appear. Hathorn v. Calef, liii. 471. 
 
 37. If, when the notice of the " creditor's intention " is given, the ex- 
 ecution with the oiEcer's return thereon be shown the stockholder, the 
 latter thereby receives a sufficient evidence of the " amount of the debt 
 or deficiency." Hathorn v. Galef, Lin. 471. 
 
 38. If both demand and notice be made at the same time, and forty- 
 eight hours before suit, the statute requirement is satisfied. Hathorn v. 
 Galef, LIII. 471. 
 
 39. The officer need not necessarily retain the execution, neither need 
 the creditor remain near during the forty-eight hours next after demand ; 
 it is only necessary that the conduct of the creditor should not be such 
 as to interfere with the stockholder's right to relieve himself by disclos- 
 ing corporate property within the time allowed. Hathorn v. Galef, Lm. 
 471. 
 
 40. If upon demand, the stockholder declines to disclose corporate 
 property, and gives no intimation of his future intention to do so, or, if 
 he did, where the property would be situated, it would not be unreason- 
 able for the creditor to return home ; since, if the officer remained, the 
 stockholder might show the property disclosed to him, whether he re- 
 turned the execution or not. Hathorn v. Galef, lul 471. 
 
 41. If the stockholders had indorsed property, after the return home 
 of the creditor, and the latter had not been in condition to receive it, he 
 alone would have been the loser. Hathorn v. Galef, lhi. 471. 
 
 42. The legislature has power so to modify and change existing laws 
 as to affect the liabilities of stockholders for the debts of the corpora- 
 
114 COEPORATIONS. 
 
 tion, having a due regard to existing contracts, and making such modifi- 
 cations prospective. JSathorn v. Calef, liii. 471. 
 
 43. Act of Feb. 16, 1836, was repealed by act of 1841, in its applica- 
 tion to the Ken. & Portl. Railroad charter, and the act of 1841, in its 
 turn, was modified by the act of 1855, c. 169. Hathorn v. Calefy liii. 
 471. 
 
 44. The acts passed subsequently to that of Feb. 16, 1836, continued 
 the liability of stockholders, but modified the remedy in some respects. 
 Hathorn v. Calef, liii. 471. 
 
 45. So far as the contract is concerned, the rights of parties attached 
 when it was made, and no change could be made after that date ; but 
 the remedy might be subsequently changed, although it imposed addi- 
 tional burdens upon either party. Hathorn v. Caltf, Lin. 471. 
 
 46. By R. S. of 1857, c. 46, § 7, " when a corporation fails to hold its an- 
 nual meeting on the day appointed, the officers of the preceding year 
 continue in the exercise of their duties, and their acts are legal until 
 other officers are duly chosen and qualified in their stead." Machias 
 Hotel Go. V. Fisher, lvi. 321. 
 
 Estoppel, 16. 
 
 IV. PLEADINGS AND EVIDENCE. 
 
 47. Chapter 109 of the Public Laws of 1844, did not repeal any of 
 the provisions of c. 76 of R. S. of 1841, by exempting manufacturing 
 corporations from their operation, except upon the conditions therein 
 named ; and when by c. 169 of the Public Laws of 1855, the remedy 
 was changed to scire facias, it applied to such manufacturing corporar 
 tions as should not comply with those conditions; and in an action 
 against the stockholders of such corporation to recover a corporate debt, 
 scire facias was the proper form of action. Whitney v. Hammond, xliv. 
 305. 
 
 48. And such action may be commenced as soon as the officer shall 
 ascertain and certify upon the execution that he cannot find corporate 
 property or estate, and before the return day of the execution. Whit- 
 ney V. Hammond, xliv. 305. 
 
 49. By § 3, c. 271, of the Public Laws of 1856 (R. S. c. 46, § 26), the 
 remedy of a creditor of a corporation against a stockholder therein was 
 by an " action of the case," to be commenced within six months after 
 the rendition of judgment against the corporation. Oummings v. Max- 
 well, XLV. 190. 
 
 50. In the absence of proof that a suit brought in the name of a cor- 
 poration was not authorized by it, its assent will be presumed, although 
 the corporation is but a nominal party. Bangor, 0. & M. R. B. Co.y- 
 Smith, xLvii. 34. 
 
 51. Where evidence has been oflfered, that a railroad corporation is 
 building a branch track under the direction of its president, the compa- 
 ny, if not otherwise shown, will be held to sanction the acts done and 
 the purpose in view. Bangor, 0. c6 M. B. B. Co. v. Smith, XLvn. 34. 
 
 52. When an act amendatory of the charter of a corporation contains 
 no provision requiring a formal acceptance of it, acceptance may be im- 
 plied from corporate acts. Grants beneficial to a corporation may be 
 
CORPORATIONS. 
 
 115 
 
 presumed to have been accepted. Bangor, 0. & M. E. B. Co. v. Smith, 
 
 XLTII. 34. 
 
 53. A railroad corporation voted to issue preferred stock on the fol- 
 lowing conditions : — " So much of the net earnings of the road as niay 
 be necessary, after paying interest to the bondholders, shall be applied 
 to the payment of twelve per cent, in sehii-annual dividends of six per 
 cent each, to the holders of stock thereby created, until the net earn- 
 ings shall be sufficient to pay an interest of six per cent on the stock, 
 and all the bonds issued of the first and second loans." _ Thereupon the 
 directors issued certificates of stock in common form, with the following 
 certificate upon the back, signed by the president and treasurer: "Pre- 
 ferred Stock. This certificate is for preferred stock created July 10, 
 1849, and entitles the holder, from the net earnings of the road, to the 
 payment of six dollars per share semi-annually, until the net earnings of 
 the road shall be sufficient to pay an interest of six per cent per annum 
 on all the stock issued, and all the bonds issued for the first and second 
 loans." Held, (1) That the corporation, as a consideration for taking the 
 stock, agreed to pay thereon twelve per cent in semi-annual dividends 
 of six per cent; (2) That the term "semi-annual dividends" was not 
 used in a technical sense, but as equivalent to semi-annual payments ; 
 (3) That these payments depended on no contingency, except that the 
 net earnings of the road, after paying interest to the bondholders,, should 
 be sufficient for paying them ; (4) That an entire year must be taken as 
 the period during which the net earnings should be sufficient to pay six 
 per cent on the bonds and all the stock, to determine when this con- 
 tract was to cease ; (5) That in an action upon this contract, the fact 
 that the plaintiff was a holder of the shares may be proved by other evi- 
 dence than the certificates of stock ; (6) That the certificates of stock 
 are not the basis of an action for the dividends, but merely evidence of 
 the ownership of the shares; (7) That these certificates are not, in such 
 action, the substance of the issue, nor matters of essential description, 
 and, therefore, although the plaintiff professes to set them out in his 
 declaration, according to their tenor, the law does not require their ex- 
 clusion as evidence, in consequence of verbal inaccuracies or omissions ;, 
 
 (8) That in such action for several dividends, it is not sufficient to allege 
 that the plaintiff took and paid for the stock, and at the commencement 
 of the action was the holder thereof, but the declaration must show that 
 he continued to be the holder during the time covered by the action; 
 
 (9) That no question as to the sufficiency of the declaration having aris- 
 en upon the pleadings, and it not appearing that the defendants had 
 suffered any inconvenience on account of the defect, the plaintiff should 
 be permitted by the law court to amend without terms ; (10) That, af- 
 ter the plaintiff had transferred the stock by an assignment upon the 
 back of the certificates, no action can be maintained in his name for div- 
 idends subsequently accruing, although such transfer has never been re- 
 corded ; (11) But that.he may recover such portion of the semi-annual 
 dividend as the time he was holder of the stock is of six months ; (12) 
 That the plaintiff cannot recover for the last six months of the year, at; 
 the end of which the contract ceases ; and (13) That the corporation 
 are estopped to deny that the meetings, at which their votes were passed, 
 ■were legally called. Bates v. And. & Ken. B. B. Co., xlix. 491. 
 
 54. A declaration against a stockholder for the debt of a corporaitson, 
 containing only the allegations to bring the case within the provisions of 
 •0. 271, of the Public Laws of 1856, cannot legally be amended, against 
 
116 COSTS. 
 
 the defendant's objections, so as to bring the case within c. 109 of the 
 Public Laws of 1844. Milliken v. Whitehouse, xlix. 527. 
 
 55. An allegation in a writ against a stockholder, that the officer "did 
 return the execution . . . wholly unsatisfied, for want of attachable cor- 
 porate property . . . wherewith to satisfy it," is a sufficient statement of a 
 want of attachable corporate property, considering that the statute con- 
 tenaplates this fact to be proved by the return. Hathorn v. Galef, liii. 
 471. i' 
 
 56, The members of a corporation are legally presumed to be citizens 
 of the State, by the laws of which it was created, and in which alone it 
 has a Jfigal existence. JTohis v. Manhattan Ins. Go., lvi. 417. 
 
 See Abatement, 20. 
 Bank, 15. 
 Peescbiption, 7. 
 
 COSTS. 
 
 I. EECOVEEY OF COSTS. 
 
 II. COSTS IN PAETICULAK CASES. 
 
 III. ON" AN OFFBE TO BE DEFAULTED. 
 
 IV. WHEN AFFECTED BY THE AMOUNT OF DAMAGES, 
 
 I. EECOVEEY OF COSTS. 
 
 1. In the trial of a petition for partition, if the respondents have no 
 interest in the land, the petitioner is entitled to .costs, though he recov- 
 ers less than he claimed in his petition. Thornton v. York Sank, xiv. 
 158. 
 
 2. If there are several parcels embraced in the petition, and his share 
 in some of them is less than he claims, if the respondents have no inter- 
 est in those parcels in which he recovers less, the case is not within R. S. 
 of 1841, c. 121, § 14 (R. S., c. 88, § 10), and the petitioner is entitled to 
 costs. Thornton v. YorJe Sank, xlv. 158. 
 
 3. If, in an action by the indorsee against an accommodation indorser 
 of a promissory note, it be proved by the testimony of the defendant 
 that the plaintiff reserved more than six per cent, interest, the defendant 
 will recover costs. Loud v. Merrill, xlv. 516. 
 
 4. Where, in a trustee process, an assignee is admitted as a party to 
 contest the right of the plaintiff to the fund, and the alleged trustee is 
 afterwards discharged, neither the plaintiff nor the assignee is entitled to 
 recover costs against each other. White Mountain Bank v. West, xlvi. 
 15. 
 
 5. Before the enactment of R. S., c. 86, § 69, if the trustee be dis- 
 charged on scire facias, he would not be liable to pay costs, but would 
 be entitled to costs, if he seasonably disclosed in the original suit. Mc- 
 Millan V. Hohson, XLVI. 91. 
 
 6. A trustee, who appeared at the first term, made his general denial 
 of liability, and was partially examined, and, at the second term, comj 
 
C0ST3. IIT 
 
 pleted his disclosure, which he then verified by oath, is entitled to his 
 costs for both terms, if discharged. Callender v. Furbish, xlvi. 226. 
 
 7. R. S., c. 45, § 2, condensed into one section, but did not change 
 R S. of 1841, c. 69, § 7, and Public Laws of 1846, c. 192, relating to costs 
 in usurious contracts. Knight v. Frank, xlviii. 320. 
 
 8. If a plaintiff, before trial, voluntarily indorses upon the note in suit 
 the amount .of usurious interest taken or retained, it will not be consid- 
 ered that " the damages are reduced by proof, either by the oath of the 
 party or otherwise," so as to entitle the defendant to, or deprive the plain- 
 tiff of, costs. Knight v. Frank, xlviii. 320. Whitten v. Palmer, l. 125. 
 
 9. The defendant in his plea, verified by oath, alleged usury, and of- 
 fered to be defaulted for a specified sum which was the amount claimed, 
 less such interest upon the note in suit before trial, and accepted the offer. 
 Held, that the damages were not reduced by proof, so that the plaintiff 
 forfeited his, and became liable for, defendant's costs, as provided in Pub- 
 lic Laws of 1862, c. 136, § 2. Whitten v. Palmer, l. 125. 
 
 10. If the plaintiff, by leave amend his bill in equity by introducing 
 an additional defendant, costs will be allowed the defendant to the time 
 of amending. McLdlan v. Osborne, li. 118. 
 
 11. Neither a party nor a witness can be allowed costs for travel be- 
 yond the line of the State. Kingfield v. Pullen, liv. 398. 
 
 12. When an appealed action is dismissed from this court on account 
 of the illegality of the recognizance, the appellee is entitled to recover 
 costs incurred for the travel and attendance of his witnesses. £rown v. 
 AUen, LIV. 436. 
 
 13. The word "plaintiff" as used in R. S. of 1857, c. 82, § 107, means 
 the plaintiff of record. Hence, where the indorsee of two negotiable 
 promissory notes made payable to different payees, causes each of 
 the notes to be sued, at the same term, in the name of its respective 
 payee, the plaintiff of record will be entitled to costs in each suit. Per- 
 ry V. Kennebunkport, lv. 453. 
 
 14. By virtue of R. S., c. 82, §§ 94 and 108, a plaintiff shall recover 
 costs in an action of debt by trustee process commenced in good faith, 
 on a judgment on which an execution might have issued when such ac- 
 tion was commenced, although the alleged trustee be discharged on mo- 
 tion, by reason of defective service on him. Xeighton v. Colby, lti. 79. 
 
 15. By the mutual agreement of the parties, they, together with their 
 witnesses, went home from court and returned with the same witnesses 
 on Thursday of the next week, and commenced the trial of their cause, 
 but did not close it until the following Monday, whereupon, the prevail- 
 ing party having paid his witnesses for both travels, and for the Sunday 
 iiftervening the days of the trial, taxed these fees in his bill of cost. JHeld, 
 that they were properly taxable. Boioe v. Shaw, lti. 306. 
 
 See Action, 15. 
 
 II. COSTS IN PARTICULAR CASES. 
 
 16. In proceedings in equity to redeem a mortgage, the complainant 
 is entitled to costs, if the respondent unreasonably refuses or neglects to 
 render a true account. Whitney v. Deming, xlvi. 382. 
 
 17. Where an appeal from a justice of the peace is entered and. after- 
 
118 COSTS. 
 
 ■wards dismissed for want of recognizance, the appellee is entitled to costs 
 in the appellate court as the prevailing party. Bennett v. Green, xlvi. 
 499. Hunter v. Cole, xlix. 556. 
 
 18. Although the statutes conferring upon justices of the peace the 
 power to fine and punish persons convicted of certain crimes and misde- 
 meanors, do not, in express terms, authorize them to include the costs of 
 the prosecution, as a part of the sentence, still their authority to do so 
 may be clearly implied from other provisions of the criminal code. 
 Downing v. Herrich, xlvii. 462. 
 
 19. The omission in the Public Laws of 1858, c. 33, § 26, to require 
 that costs of prosecution should constitute a part of the sentence, when it 
 was made obligatory to do so in other sections of the same chapter, 
 shows that therein it was designed to be submitted to the discretion of 
 the magistrate, to include them or not in the sentence, as in previous 
 statutes. Downing v. Herrich, xlvii. 462. 
 
 20. As a general rule, the prevailing party, in equity, is entitled to 
 costs; but the rule will be enforced or not, at the discretion of the court, 
 as the facts and circumstances of each particular case may. require. 
 Stone V. Locke, xlviii. 425. 
 
 21. After a final decree in favor of a party, to entitle him to costs, 
 there must be an express order or decree therefor. Stone v. Locke, 
 xlviii. 425. 
 
 22. If pending an action in court, the defendant dies, and commission- 
 ers of insolvency are appointed, to whom the claim in suit is presented 
 
 ■by the creditor, and their adjudication upon it had and accepted by the 
 probate court ; the plaintiff is thereby barred from recovering in such 
 suit, and the administrator will have costs from the time of his appear- 
 ance to defend. Bates v. Ward, xlix. 87. 
 
 23. When, on an appeal from the judgment of a justice of the peace, 
 the appellant fails to produce a copy of the record of the court below in 
 the appellate court, the action may be dismissed, and the judgment of 
 the magistrate in favor of the plaintiff affirmed with additional costs. 
 Hunter v. Cole, xlix. 556. 
 
 24. The death of a widow abates her pending petition for an allow- 
 ance out of the personal estate of her husband ; and the appellate court 
 may direct the costs of both parties to be paid out of the estate, by the 
 executor, he having appealed from the decree of the judge of probate. 
 T'arhox v. Fisher, l. 236. 
 
 25. If one part-owner of a vessel amend his bill for an account against 
 others, by introducing an additional defendant, costs will be allowed the 
 former defendants to the time of amendment. McLellan v. Osborne, 
 LL 118. 
 
 26. In an action on a mortgage, where the notes thereby secured iS- 
 clude usurious interest, the defendant on default is not entitled to costs, 
 notwithstanding on such default the amount of the conditional judgment 
 is reduced by proof of such usury. Carson v. Walton, li. 382. 
 
 27. Section 2, c. 136, of the Public Laws of 1862, giving costs to a 
 defendant upon proof of usurious interest under the general issue, does 
 not apply to real actions. Carson v. Walton, li. 882. 
 
 28. In an action by the master of a house of correction to recover the 
 expenses incurred in support of a pauper therein, the costs of commit- 
 ment cannot be recovered. Gilman v. City of Portland, li. 457. 
 
COSTS. 
 
 119 
 
 29. By R. S. of 1857, c. 18, § 13, a prevailing petitioner for increase of 
 damages, recovers costs ; and he is a prevailing petitioner who obtains a 
 verdict for damages, when the commissioners had allowed him none. 
 Abbott V. Penobscot County, lii. 584. 
 
 30. This statute covers all legal costs, both before the commissioners, 
 and the supreme judicial court. Abbott v. Penobscot Cowity,iAi. 584. 
 
 31. In such case, the petitioner is entitled to costs as follows : (1) Be- 
 fore the commissioners, for the petition, entry, travel, and attendance 
 at the term of entry, and when the verdict is certified from this court; 
 (2) before the jury, for travel and actual attendance, witness fees, and 
 all copies and other matters which would be legally taxable in a case 
 before this court ; and (3) before this court, for the usual fees of entry, 
 travel, and attendance for one term only, unless the acceptance of the 
 verdict is resisted ; when such costs may be recovered beyond the first 
 term, as the discretion of the presiding judge may dictate. Abbott v. 
 Penobscot County, lii. 584. 
 
 32. In bills ill equity brought to obtain a construction of a will, rea- 
 sonable costs may be allowed out of the estate to one or both parties. 
 Kimball v. Crocker, liii. 263. Prew v. Wakefield, liv. 291. 
 
 33. For a schedule of legal taxable costs in this court, lv. 395. 
 
 34. In a bill in equity to redeem a mortgage of real estate, the re- 
 spondent having claimed in her account more than she is entitled to re- 
 cover, is liable for costs. Parkliurst v. Cummings, lvi. 155. 
 
 See Aebiteation, 19. 
 Costs, 1-15. 
 
 III. ON AN OFFER TO BE DEFAULTED. 
 
 35. Where an offer to be defaulted is made at the first term, and ac- 
 cepted at a subsequent term, the plaintiff is entitled to costs up to the 
 time of the default. Pingree v. 8nell, xlvi. 544. 
 
 36. If, after the default, the defendant reserves the right to a subse- 
 quent hearing as to damages or costs, the plaintiff may recover costs un- 
 til final judgment. Pingree v. Snell, xlvi. 544. 
 
 37. By R. S., c. 82, § 21, it is the right of the defendant to have the 
 time fixed by the court, within which the plaintiff may accept his offer 
 to be defaulted for a specified sum. Gihnan v. Pearson, xLvn. 352. 
 
 38. If not accepted within the time fixed, and the action is afterwards 
 tried, the defendant will not be bound by his offer; but will be entitled 
 to all the advantages of it, so far as it may^ affect the costs. Oilman v. 
 Pearson, xlvii. 352. 
 
 39. If no time has been fixed by the court for its acceptance, the offer 
 is not void for that reason; and if, on trial of the action, the jury shaU 
 find that there was due to the plaintiff, at the time of the offer, a sum not 
 greater than that for which the defendant offered to be defaulted, the 
 plaintiff will not have costs after the offer was made', but will be held to pay 
 the defendant his costs after that time. Oilman v. Pearson, xlvii. 352. 
 
 40. And the defendant will be entitled to costs, in case the offer shall 
 be accepted by the plaintiff before trial, though no time has been fixed by 
 the court for its acceptance. Oilman v. Pearson, xlvii. 352. Harts- 
 horn V. Phinney, xlviii. 300. Whitten v. Palmer, l. 126. Woodcock 
 V. Mc Gormick, lv. 532. 
 
120 COSTS. 
 
 41. If no time has been fixed for the acceptance of an offer to be de- 
 faulted, the plaintiff may accept it at any time before it is revoked. 
 Hartshorn v. Phinney, xlviii. 300. 
 
 42. The defendant in his plea, verified by oath, alleged usury, and of- 
 fered to be defaulted for a specified sum which was the amount claimed, 
 less such interest ; and the plaintiff indorsed the amount of the excessive 
 interest upon the note in suit before trial and accepted the offer. Held, 
 the plaintiff is entitled to costs to the time of filing the offer, and the de- 
 fendant, after that time. Whitten v. Palmer, l. 125. 
 
 43. R. S., c. 82, § 21, relating to offers to be defaulted applies to ac- 
 tions founded on judgments or contracts. Carson v. Walton, li. 382. 
 
 44. When a defendant offers to be defaulted in accordance with R. S. 
 of 1857, c. 82, § 21, and the plaintiff, either at the same or any subsequent 
 term, accepts the offer, the defendant is entitled to costs from the time 
 when the offer was made, whether any time was fixed for the acceptance 
 or not. Woodcock v. Mc Cormick, lv. 532. 
 
 IV. WHEN AFFECTED BY THE AMOUNT OF DAMAGES. 
 
 45. Quarter costs only can be taxed for the plaintiff, when it appears 
 on the rendition of judgment that the action should have been original- 
 ly brought before a justice of the peace. Lawrence v. Ford, xliv. 427. 
 
 46. Whether an action should have been brought before a justice of 
 the peace, is to be determined ordinarily by the amount of the judgment. 
 Lawrence v. Ford, xliv. 427. Hervey v. Pangs, liii. 514. 
 
 47. Where the defendant filed an account in set-off, and thereafter of- 
 fered to be defaulted for a sum less than twenty dollars, the plaintiff, in 
 order to recover full costs, should have it appear that his acceptance of 
 the offer was by reason of a reduction of his judgment, in consequence 
 of the account filed in set-off. Lawrence v. Ford, xliv. 427. 
 
 48. By R. S., c. 88, § 1, and c. 82, § 97, in actions of qiiare clausum 
 fregit, and all actions where the title to real estate is at issue, according 
 to the pleadings or brief statement filed by either party, the plaintiff is 
 entitled to full costs, although he recovers less than twenty dollars. 
 Purnham v. Ross, xlvii. 456. Maxwell v. Potter, xlvii. 487. Mellows 
 v. Hall, XLix. 335. 
 
 _ 49. The supreme judicial court has original as well as concurrent ju- 
 risdiction, with justices of the peace, of actions of trespass quare clau- 
 sum fregit, although the damages demanded are less than twenty dollars. 
 Purnham v. Poss, xlvii. 456. Maxwell v. Potter, xlvii. 487. 
 
 50. In an action on a replevin bond, in which the penalty is more than 
 twenty dollars, if the damages assessed be less than that sum, the plain- 
 tiff will recover full costs, although the action was not commenced be- 
 fore a justice of the peace. Lewis v. Warren, xlix. 322. 
 
 51. In an action for carelessly setting a fire by which trees upon the 
 plaintiff's land were burned, full costs will be recovered even if the plain- 
 tiff recover less than twenty dollars damages. Mellows v. Hall, xllx. 
 
 ooO. 
 
 52. In an action commenced in the supreme judicial court to recover 
 a penalty incurred under R. S., c. 24, § 38, which is "not to exceed one 
 hundred dollars," the jury assessed damages for the plaintiffs at one per 
 cent. Held, that only quarter costs followed. Houlton v. Martin, l. 336 
 
COUPONS. 
 
 121 
 
 53. In an action by tbe master of a house of correction to recover the 
 expenses incurred in support of a pauper therein, full costs are recovera- 
 ble, although the damages recovered be less than twenty dollars. Gil- 
 man V. City of Portland, li. 457. 
 
 54. The verdict settles the amount of debt or damages for which the 
 suit was instituted. If below twenty dollars (in cases not excepted by 
 the statute), the verdict shows the cause of action was one within the 
 jurisdiction of a trial justice. Hervey v. Bangs, xni. 514. 
 
 55. Where, in an action of slander, the plaintiff, after having obtained 
 a verdict for nineteen dollars damages, alleged exceptions which were 
 overruled by the law court, and, at the time of the rendition of judg- 
 ment, the verdict, together with the accruing interest thereon, amounted 
 to more than twenty dollars, Held, that the plaintiff is entitled to only 
 quarter costs ; and the defendant to none. Heney v. Bangs, liii. 514. 
 
 56. To assumpsit on account annexed, amounting to $122.99, the de- 
 fendant duly filed in set-off an account amounting to $361.20. At the 
 trial the jury returned a verdict " that there is a balance due the plain- 
 tiff of eighteen cents, that the defendant did promise," . . . and that they 
 " assess damages for the plaintiff in the sum of eighteen cents." Held, 
 that the plaintiff is entitled to recover for costs no more than one-quar- 
 ter of his damages. Hilton v. Walker, lvi. 70. 
 
 COUPONS. 
 
 1. Coupons, or notes for the payment of the interest on bonds issued, 
 are choses in action and cannot be attached by trustee process, or sold 
 on execution. Smith v. Ken. c6 Portl. B. B. Co., xlv. 547. 
 
 2. Where one holds coupons as collateral security, they are not held 
 by him subject to the provisions of § 58, c. 119 of R. S. of 1841, which 
 applies only to "property not exempted by law from attachment." 
 Smith V. Ken. S Portl. B. B. Go., xlv. 547. 
 
 8. Without some statutory provision, no action can be maintained in 
 the name of an assignee, upon interest coupons, which contain no nego- 
 tiable words, nor language from which it can be inferred, that it was the 
 design of the corporation issuing them, to treat them as negotiable pa- 
 per, or, as creating an obligation distinct from, and independent of, the 
 bonds to which they were severally attached when the bonds were issued. 
 Jackson V. York & Cumb. B. B. Co., xlviii. 147. Augusta Bank v. 
 Augusta, xlix. 507. 
 
 4. The negotiability of such coupons is a question of law, to be de- 
 termined from the papers themselves, by fixed and settled rules ; and 
 proof of custom, as to the negotialsility of them, is inadmissible. Jack- 
 son V. York d) Cumb. B. B. Co., xlviii. 147. 
 
 5. An action upon a coupon, commenced in the name of an assignee 
 prior to the time when c. 248 of the Public Laws of 1856 took effect, 
 will not be aided by the provisions of that chapter. Jackson v. York 
 d> Cumb. B. B. Co., XLVIII. 147. 
 
 6. A coupon, to be negotiable, must be so upon its face, without refer- 
 ence to any other paper. Augusta Bank v. Augusta, xlix. 507. 
 
122 COUNTY — COUNTY COMMISSIONERS. 
 
 7. A coupon, not negotiable upon its face, will not be held to be so, 
 upon proof that similar coupons have been passed from hand to hand as 
 if negotiable. Augusta Bank v. Augusta, xlix. 507. 
 
 8. Public Laws of 1856, c. 248, §§ 1 and 2, authorizing the bona fide 
 holder of coupons to maintain an action thereon in his own name, do 
 not impair the obligation of the contracts in bonds already issued, but 
 relate wholly to the remedy, and are constitutional. Augusta Bank v. 
 Augusta, xlix. 507. 
 
 9. Chapter 248 was continued in force, by the second section of the 
 "repealing act" in the R. S., as to coupons then in possession of any 
 person for a valuable consideration. Augusta Bank v. Augusta, xlix. 
 507. 
 
 See And. R. R.. 4. 
 
 COUNTY. 
 
 The county in which proceedings for the location of a highway were 
 commenced and closed is alone liable for damages to the land-owners, 
 although, before the road was completed, that part of the county em- 
 bracing the location had been set off and annexed to another county. 
 Jones v. Oxford County, xlv. 419. 
 
 COUNTY COMMISSIONERS. 
 
 1. Upon a petition for a jury to determine the damages caused by the 
 location of a railroad, the county commissioners issued their warrant, re- 
 turnable before themselves, when the statute required it to be made 
 returnable before the supreme judicial court. And, although the warrant 
 and verdict of the jury were in fact returned as the statute directed, 
 the proceedings were held invalid. Cassidy v. Ken. & Portl. B. B. Co., 
 XLV. 263. 
 
 2. The proceedings of county commissioners, under R. S. of 1841, c. 
 25, § 44, in laying out a road in unorganized lands, and over a number 
 of townships, must show at whose expense such road is laid out over 
 any one of the townships ; whether at the expense of the proprietors of 
 such township, or of the county, or partly at the expense of each. It is 
 not competent for the commissioners to order that one of such townships 
 shall pay the expenses of opening and making such road through other 
 townships. Howe v. Aroostoolc County Commissioners, xlvi. 332. 
 
 3. The commissioners must also decide whether, in their opinion, a 
 township over which such road is laid would be enhanced in' value there- 
 by ; and they must assess upon each tract, which they consider to be en- 
 hanced in value, such sum as in their opinion would be proportionate to 
 the value and benefits likely to result from the establishment of such 
 road. Howe v. Aroostoolc County Commissioners, xlvl 382. 
 
 4. The owner of land taken for the location of a railroad, failing to 
 
COUNTY COMMISSIONEES. 123 
 
 agree with the company as to his damages, may, at any time within three 
 years, apply to the county commissioners, who shall estimate his dam- 
 ages, and, if requested, require the corporation to give security for their 
 payment ; whereupon the right of the corporation to enter upon the 
 premises, except for making surveys, is suspended until the security is 
 • given. Davis v. Hussell, xlvii. 443. 
 
 5. The Massachusetts statute of 1787, creating a court of sessions, and 
 the decisions under it, are obsolete and inapplicable. Howland v. Pen. 
 County Commissioners, xlix. 143. 
 
 6. The neglect of the commissioners to return a plan of the way laid 
 out is not material, if they have returned a sufficient description. Hov;- 
 land V. Pen. County Com,missioners, xlix. 143. 
 
 7. The requirement that stone monuments shall be erected at the an- 
 gles or termini, is only directory, and their erection is not necessarily to 
 be recorded, but may be subsequent to the location and record. Plow- 
 land V. Pen. County Commissioners, xlix. 143. 
 
 8. When one has been elected a county commissioner for three years, 
 and resigns during the first year, the statute provides that the governor, 
 with the advice of the council, shall appoint a person who shall hold the 
 office until the first of January, after another has been chosen to fill the 
 place. Opinion of the Judges, l. 607. 
 
 9. If, at the next election, a person be chosen, he will* be entitled to 
 hold the ofiice only for the unexpired term of the officer who resigned, 
 commencing on the first day of January after his election. Opinion of 
 the Judges, l. 607. 
 
 10. The person chosen, at the election immediately preceding the ex- 
 piration of his term, is elected for the term of three years. Opinion of 
 the Judges, l. 607. 
 
 11. Chapter 408 of the Special Laws of 1855, incorporating the city 
 of Biddeford, confers upon the county commissioners power to lay out, 
 within that city, any part of any new county road that shall be laid out 
 in any adjoining town, and shall pass into and through the city. Plan- 
 son appellant, li. 193. 
 
 12. An appeal from the decision of the county commissioners laying 
 out a highway can only be taken after the proceedings are recorded at 
 the second regular term after the laying out. Russell v. FranMin Coun- 
 ty Com^missioners, li. 384. 
 
 13. A return of the laying out of a highway was made at the Decem- 
 ber term, 1860 ; the case continued to the next (April, 1861,) term, and 
 the proceedings then recorded. Subsequently, an appeal was taken to 
 the next term of the supreme judicial court, held after April, 1861. Held, 
 that the appeal was seasonably taken. Bussell v. Franklin County Com- 
 missioners, LI. 384. 
 
 14. By R. S., c. 18, §§ 16 and 17, after a joint board of county commis- 
 sioners has decided to locate a way which will extend into their several 
 counties, each board may act separately in locating so much of the way 
 as lies within its own county. Petroit v. Somerset County Commis- 
 sioners, Lii. 210. 
 
 15. R. S., c. 18, §§ 38 and 39, provide that a highway may be laid out 
 on the line between towns, part of its width being in each, and the com- 
 missioners may then divide it crosswise, and assign to each town its pro- 
 
124 COVENANT. 
 
 portion thereof, by metes and bounds. Detroit v. Somerset County Com- 
 missioneis, mi. 210. 
 
 16. Chapter 296 of the Special Laws of 1864, authorizing the city of 
 Belfast to erect and maintain a free bridge across the Passaggassawa- 
 keag river, confers no authority on the county commissioners to act in 
 the premises. Hence the report of the committee appointed on appeal 
 from the decision of the county commissioners in the premises, should be 
 rejected. Belfast v. Waldo County Commissioners, lii. 529. 
 
 17. By c. 103, § 36, of the Pub. Laws of 1859, if the judgment of the 
 committee ... is wholly against the prayer of the original petition, the 
 commissioners shall proceed no further thereon ; but if otherwise, they 
 shall carry it into effect as if made by them. Harriman v. Wcddo Coun- 
 ty Comm,issioners, liii. 88. 
 
 18. An allowance made to a clerk of this court by the county com- 
 missioners, " for expenses and sums paid out," does not have the force 
 of a judgment, and is not conclusive. State v. Mclntyre, liii. 214. 
 
 19. Chapter 365, of the Special Laws of 1846, authorizing the county 
 commissioners to lay out and establish a road across Fish river, simply 
 enlarged their powers, without absolving them from following the legal 
 requirements in reference to the laying out of the ways. £elfas v. 
 
 Waldo County Commissioners, liii. 431. 
 
 See Wat. 
 
 Ceetioeaki, 1, 2, 3, 5, 6. 
 Equity, 193. 
 
 COVENANT. 
 
 I. CONSTETJCTION AND BEEACH. 
 II. GENERALLY. 
 
 I. CONSTEUCTION AND BEEACH. 
 
 1. The defendant became bound by his bond, jointly and severally to 
 A. C. and others, owners of certain mills, dam, and water power, and also 
 unto the grantees of either and all of them (naming the obligees in the 
 bond), to complete, and keep in repair for twenty years, the dam. In an 
 action of covenant broken, brought by a grantee of some of the owners, 
 for damages for defendant's non-performance of his covenant, ITeld, that 
 as the defendant was a stranger to the title, his covenant was personal ; 
 that as the plaintiff was no party to the bond when it was executed, 
 there is no privity of contract between him and the defendant ; and, there 
 being neither privity of contract nor of estate, the action is not main- 
 tainable. Lyon V. Parker, xlv. 474. 
 
 2. A widow's right of dower in a parcel of land is an incumbrance co- 
 extensive with its boundaries; and if the owner of the fee subject to the 
 right of dower, gives a warranty deed of two-thirds thereof in common 
 and undivided, the covenants of warranty are broken on its delivery. 
 Bla/ncha/rd v. Bla/nchard, xlviii. 174. 
 
COVENANT. 
 
 125 
 
 3. And the breach, having once taken place, is not cured, though only 
 one-third of the whole is assigned as dower, and the grantee is left in 
 possession of the residue. Blanchard v. Manchard, zlviii. 174. 
 
 4. A. held* a mortgage from B. of a lot of land. C, claiming under 
 B., gave a deed of the same land to D., with a covenant against all in- 
 cumbrances, and D. afterwards conveyed the premises to A. with a like 
 covenant. A. cannot, after releasing D., maintain an action against C. 
 for breach of covenant, on the ground that he has been evicted by an 
 older and better title. TrasJc v. Wilder, l. 450. 
 
 5. The holder of a mortgage of a lot of land, who subsequently took 
 a warranty deed of the same lot from one who had, through intervening 
 conveyance, the mortgager's right of redemption, will not, in an action 
 against one of the intermediate grantors for breach of covenant of war- 
 ranty, be sustained in pleading that he has been evicted by the mortgage 
 title which he holds himself, nor in a claim for damages on account of the 
 incumbrance. Trash v. Wilder, l. 450. 
 
 6. Wliere a grantor of real estate is in possession when the deed is 
 delivered, there can be no breach of the covenant of seisin. Wilson v. 
 
 Widenham, li. 566. 
 
 1. The covenant of warranty in a deed, given by one in possession of 
 the estate, runs with the land, although the grantor has no title. Wilson 
 V. Widenham, li. 566. 
 
 8. An outstanding mortgage of premises described in a deed of war- 
 ranty, is not such an incumbrance as will constitute a breach of the cove- 
 nant of freedom from incumbrance, when the premises in the deed, 
 described by metes and bounds, are declared thereon to be " subject to 
 the mortgage." Freeman t. Foster, lv. 508. 
 
 See Assumpsit, 20. 
 
 II. GENEEALLY. 
 
 9. The covenants in a deed are restricted to the grant. And, if the 
 grantor conveys only his right, title, and interest in the premises, he is 
 not liable upon his covenants of warranty, against persons claiming title 
 under him, though he had previously conveyed the land to another. 
 JBallard v. Child, xlvi. 152. 
 
 10. The covenant of warranty in a deed, given by one in possession 
 of the estate, runs with the land, although the grantor has no title. Wil- 
 son v. Widenhcmh, li. 566. 
 
 11. And one to whom the grantee has released all his title may main- 
 tain an action on such covenants, independently of § 16, c. 82, R. S. 
 
 Wilson V. Widenham, li. 566. 
 
 12. The object of § 16, c. 82, R. S., is to give an assignee a right of 
 action on the personal covenants, which before he did not have. It leaves 
 the common law in force as to covenants real, which run with the land. 
 Wilson V. Widenham, li. 566. 
 
 See Amendment, 19. 
 Assignment, 15. 
 Bond, 14. 
 Damages, 32. 
 
126 CREDITOR AND DEBTOR. CRIMINAL LAW. 
 
 CREDITOR AND DEBTOR. 
 
 1. One person cannot make another his debtor by paying the debt of 
 the latter without his request or consent. Richardson v. Williams, xlix. 
 558. 
 
 2. 'The plaintiff in an action of tort becomes a creditor, when he re- 
 covers his judgment. Hall v. Sands, lii. 355. 
 
 See Action, 29. 
 
 Assignment, 22. 
 Assumpsit, 10, 29, 30. 
 
 CRIMINAL LAW. 
 
 1. Crimes referred to in R. S., c. 126, § 12, as punishable by imprison- 
 ment in the State prison, are such as are liable, by the statute, to be thus 
 punished, and not such only as must be thus punished. State v. May- 
 berry, XLviii. 218. 
 
 2. A motion in arrest of judgment will be sustained only for defects 
 apparent on the record of the particular case. State v. Carver, xlix. 
 
 588. 
 
 3. On the trial of an indictment for murder, the prisoner's testimony 
 before the coroner's inquest upon the body of the person alleged to have 
 been murdered, given without olfjection, before his arrest, though after 
 he had been charged with the murder, and after being cautioned that he 
 was not obliged to testify to anything which might criminate himself, 
 and not purporting to be a confession, is admissible as evidence against 
 him. State v. Gilman, li. 206. 
 
 See Adultery, Cheating, &c.. Com. Seller, Complaint, Conspiracy, 
 Drinking House, &c.. Felony, Forgery, Indictment, Larceny, 
 Liquor, Murder, Perjury, Receiver, &c., Reform School, Tru- 
 ant, Evidence, 38, 188. 
 
 CURRENCY. 
 
 See Damages, 28. 
 
CUSTOM AND USAGE. DAMAGES. 
 
 CUSTOM AND USAGE. 
 
 127 
 
 Evidence that there has always been a custom at a certain saw-mill 
 and other mills in the neighborhood to leave the slabs as belonging to 
 the mill, the owners of the logs never claiming them, does not establish 
 a legal right in the mill as real estate to the slabs sawed. Adams v. 
 Morse, li. 497. 
 
 See Bills, &c., 64, 166. 
 Evidence, 30, 32. 
 
 CUSTOM-HOUSE WHARF AND PORTLAND PIER. 
 
 The divisional line between Custom-house wharf and Portland Pier 
 in the city of Portland established. Gould v. Z/i/man, xlviii. 129. 
 
 DAMAGES. 
 
 I. IN ACTIONS ON TOETS. 
 II. IN ACTIONS ON CONTRACTS. 
 
 I. IN ACTIONS ON TOETS. 
 
 (a) Against officees. 
 
 (b) Trespass. 
 
 (c) Teoveb. 
 
 (d) Othee injueies. 
 
 (a) Against officers. 
 
 1. Where, in an action of trespass against an officer, he fails to justify 
 the taking and conversion of property attached on a writ, in the absence 
 of proof that judgment has been rendered in the original suit, or the 
 property has been applied to the payment of the claim sued, he shows 
 no cause for reduction of damages. Knight v. Herrin, xlthi. 533. 
 
 2. An appraisal of goods of a mortgager, attached by his creditors, 
 made under the authority of the attaching officer, is not binding on the 
 mortgagee as a rule of damages, in an action against the officer. Treat 
 v. CHlmore, xlix. 34. 
 
 3. In an action against an officer for not keeping property attached by 
 him on a writ, its value, as stated in his return, and in a receipt taken 
 
128 DAMAGES. 
 
 for it, in the absence of all contradictory proof, may be taken as the true 
 value for which he is liable. Willard v. Whitney^ xlix. 235. 
 
 (b) Trespass. 
 
 4. A tenant in common of undivided lands is liable to treble damages 
 for cutting timber on the common estate without proper notice, or for 
 catting during the pendency of a petition for partition. And trespass 
 quare clausuni is the proper form of action to recover therefor. Jifills 
 V. Richardson, xliv. 79. 
 
 5. In trespass vi et armis, for maiming and disfiguring the plaintiff, 
 the jury are authorized to give exemplary or punitive damages, if they 
 find the defendant wantonly committed the injury. JPike v. Dilttng, 
 xLviii. 539. 
 
 6. And in such a case, the instruction that "the jury were authorized, 
 if they thought proper, in addition to the actual damages, to give the 
 plaintiff a further sum, as exemplary or vindictive damages, both as a 
 protection to the plaintiff, and as a salutary example to others, to deter 
 them from'offending in like cases," was held to be in accordance with the 
 weight of judicial authority in this country. Pike v. Dilling, xltiii. 
 539. 
 
 7. In the trial of an action brought in the name of the plaintiff alone, 
 for injuring his property, destroying his business, and violently expelling 
 him and his wife from the town, — neither the wife's " mental anguish in 
 being separated from her husband," nor her " feelings as a woman, com- 
 pelled to abandon a chosen residence and turn her back on associations 
 formed in early life," is a matter for the consideration of the jury in esti- 
 mating the damages. Sooper v. Haskell, lvi. 251. 
 
 8. The plaintiff was unlawfully seized by the defendants, carried 
 thence three miles, and confined in a room several hours, and thence to 
 a town meeting, where he took an oath to support the constitution of 
 the United States, and was discharged. In the trial of an action of tres- 
 pass, based upon these facts, the plaintiff claimed, (1) actual damages re- 
 sulting from his seizure and detention, (2) damages for the indignity 
 thereby suffered, and (8) punitive damages. Held, (1) That the plaintiff 
 was entitled to recover full pecuniary indemnity for the actual corporeal 
 injury received, and for the actual damages directly resulting therefrom, 
 such as loss of time, expense of cure and the like ; (2) That the declara- 
 tions of the plaintiff, made prior to the unlawful arrest and tending to 
 jjrovoke the same, not being a legal justification thereof, are inadmissible 
 in mitigation of the actual damages ; but, (3) that such declarations 
 made on the same day, and communicated to the defendants prior to 
 such arrest, together with all the facts and circumstances fairly and clear- 
 ly connected with the arrest, indicative of the motives, provocations, and 
 conduct of both parties, are admissible upon the question of damages 
 claimed upon the other two grounds. Prentiss v. Shaw, lvi. 427. 
 
 9. In the trial of an action of trespass quare clausum, brought by a 
 tenant at will against an officer for illegally ejecting the plaintiff and his 
 wife, and removing their furniture from the dwelling-house occupied un- 
 der the tenancy, damages are not recoverable for the consequent injury 
 to the feelings of the wife. Smith v. Grant, lvi; 255. 
 
DAMAGES. 
 
 129 
 
 (c) Trover. 
 
 10. In actions of trover, the measure of damages is the value of the 
 property converted, at the time the right of action accrues, and interest. 
 Hobinson v. iBarroios, xlviii. 186. 
 
 11. The plaintiff made a conditional sale of a pair of oxen in Februa- 
 ry, for $120, to be paid for in September following, "the oxen to remain 
 the property of the plaintiff until paid for ; " and the vendee thereafter- 
 "wards sent to the plaintiff $60 in part-payment, and then sold the oxen 
 to the defendant, who converted them to his own use. Held, that in 
 trover for the value of the cattle, the measure of damages was the value 
 of them at the time and place of conversion, with interest from that 
 date, without any deduction for the partial jjayment. Brown v. Saynes, 
 ui. 578. 
 
 12. When the mortgager of one-eighth of a vessel has refused to com- 
 ply with a demand of the mortgaged property, and both before and after 
 demand has received one-eighth of the earnings and paid one-eighth of 
 the repairs, the amount of repairs will not be deducted in mitigation of 
 damages in an action of trover. Wood v. Stockwell, lv. 76. 
 
 (d) Other injuries. 
 
 13. In case against a common carrier for an injury arising from his 
 negligence, only such damages can be recovered as necessarily result 
 from the wrongful act, unless special damages are alleged and proved. 
 Hunter v. Stewart, xlyii. 419. 
 
 14. An unmarried woman receiving "an injury by the neglect of a com- 
 mon carrier, in whose carriage she was upset, cannot recover damages on 
 account of her prospect as to marriage being impaired by the injury, 
 such damages not being specially alleged in the writ, nor sustained by 
 the evidence. Hunter v. Stewart, xlvii. 419. 
 
 15. A jury appointed to estimate damages for land taken by a railroad 
 company, should not include in their verdict damages occasioned by the 
 neglect of the company to remove the stones thrown upon the petition- 
 er's land, by blasting, while grading the road ; but it should include dam- 
 ages caused by blasting. Whitehouse v. And. H. JR. Co., lh. 208. 
 
 16. In an action for slander the wealth of the defendant may be con- 
 sidered by the jury in the assessment of damages. Humphries v. Par- 
 ker, Lii. 502. 
 
 17._ Under what circumstances a verdict of $1400, in an action fo.i 
 malicious prosecution and slander, is not excessive. Humphries v. Par- 
 Jeer, Ln. 502. 
 
 18. In an action against a common carrier for damages in not reason- 
 ably transporting flour, the decline in its market value between the time 
 when it actually a,rrived at its place of destination, and when, in the ex- 
 ercise of proper diligence on the part of the carrier, it might have so ar- 
 rived, is a material element proper for the consideration of the jury in 
 ascertaining the actual damages sustained by the shipper. Weston v. 
 Grand Trunk Railway Co., lit. 376. 
 See AcTioif, 33. 
 Agency, 22, 23. 
 Mills, 43-46. 
 9 
 
130 DAMAGES. 
 
 n. IN ACTIONS ON CONTEACTS. 
 
 (a) On simple contracts. 
 
 (b) On covenants eeal. 
 
 (C) On bonds GENERAIiliY. 
 
 (a) On simple contracts. 
 
 19. Where a party contracts to deliver goods at a particular time and 
 place, and no payment has been made, the true measure of damages is 
 the difference between the contract price and that of like goods at the 
 time and place when and where they should have been delivered. Ber- 
 ry V. Dwinel, xliv. 255. 
 
 20. But if there be no market value at the place of delivery, the value 
 of the goods should be determined at the nearest place where they have 
 a market value, deducting the extra expense of delivering them there. 
 Berry v. Dwinel, xlit. 255. 
 
 21. Neither the gain or loss which the contracting party might have 
 made, or necessarily suffered, if the contract had been performed, or the 
 purposes and objects of the contract, can affect the measure of damages 
 for the non-fulfillment of it. Berry v. Dwinel, xliv. 255. 
 
 22. Damages for the non-delivery of goods, by a common carrier, at 
 a place beyond its line, is the value of the goods at the place of delivery, 
 less the cost of transportation, if unpaid. Perkins v. Portland, S. & P- 
 B. B. Co., xLvii. 573. 
 
 23. In an action against the indorser of a draft drawn on a firm in 
 Philadelphia and jjrotested for non-exceptance, the holder will be enti- 
 tled to damages at the rate of six per cent additional to the contents of 
 the bill and interest ; R. S. of 1841 and of 1857, not being materially 
 variant. Orono Bank v. Wood, xlix. 26. 
 
 24. The directors of a railroad company, in failing circumstances, on 
 the one part, and its president on the other, entered into mutually de- 
 pendent contracts, that if the latter would indorse for the company for 
 an amount not exceeding $60,000, they would severally indemnify him 
 in the proportions set against their names, and the latter agreed to in- 
 dorse to that amount. The total of the various sums subscribed was 
 $87,868, — the liability assumed by the president, paid at eleven different 
 times, including interest and costs of protest, was $41,138.88. In an ac- 
 tion against one of the signers who subscribed $3,967, Held, that upon 
 each payment made by the president his right of reimbursement was for 
 IJ-;ioMo of the amount paid; that the defendant's proportion of the 
 amount for which all were liable to the plaintiff, was ^f^^-g with interest 
 from the date of each payment ; and that each of the payments computed 
 in this way, and the whole added together, would make the amount of 
 the judgment against the defendant. Williams v. Hagar, l. 9. 
 
 25. When a defendant has adopted the signature of the note in suit, 
 knowing it to be a forgery, the rule of damages will be the whole amount 
 of the note. Casco Bank v. Keene, Lni. 103, 
 
 26. And the same rule applies when the defendant is estopped from 
 denying the signature. Casco Bank v. Keene, liii. 103. 
 
 27. Mercantile usage in this State has established the damages on a dis- 
 honored bill of exchange on London, at ten per cent. Wood v. Watson, 
 LIII. 300. 
 
DAMAGES. 
 
 131 
 
 28. The court cannot vary this rule, in a monetaiy crisis, on account 
 of a depreciation of the currency of the country. Wood v. Watson, lhi. 
 800. 
 
 29. Damages for the non-delivery of a portion of the property sold, 
 are the difference between the price agreed and the value at the time of 
 refusal. JBush v. Holmes, liii. 417. 
 
 30. If the purchaser of goods refuses to accept and pay for them, the 
 owner may at once resell them for the most he can get, and charge the 
 first purchaser with the difference between the contract price and the 
 price actually obtained. Atwood v. Lucas, liii. 508. 
 
 31. The plaintiff conveyed her farm to one W., receiving back a writ- 
 ing obligatory to reconvey upon the conditions therein specified, which 
 obligation she assigned to the defendant in consideration of his oral 
 agreement to redeem and take a deed of the farm from W., and then ex- 
 ecute and deliver her a similar writing to reconvey to her whenever, 
 within three years, she should pay him whatever should be reasonably 
 due for services and expenditures. The defendant redeemed and took a 
 deed of the farm from W., but refused to deliver said obligation, and 
 conveyed away the farm to D. In assumpsit, for breach of agreement, 
 Meld, that under the general issue, the damages were the actual value 
 of the farm, after deducting the amount actually paid by the defendant 
 to redeem, and such other sums paid out, and for services rendered by him 
 at her request, as she had agreed to allow. Lawrence v. Chase, liv. 
 196. 
 
 See Auction-, 1. 
 
 Attachment, 71. 
 
 (b) On covenants real. 
 
 82. The defendant, being seized in fee of a parcel of real estate, sub- 
 ject to a right of dower, conveyed by deed of warranty two undivided 
 third parts thereof to the plaintiff. Subsequently, one-third of the whole 
 was assigned as dower by metes and bounds, and the plaintiff left in pos- 
 session of the remainder without interruption. In an action of covenant 
 broken, JSdd, that the damages depend upon whether more than one- 
 third in .value was assigned as dower, and that the plaintiff is not con- 
 cluded upon this question, by the assignment. 'Blanchard v. Blanchard, 
 xLVin. 174. 
 
 (c) On bonds generally. 
 
 88. In the trial of an action of debt upon a bond, which, by its terms, 
 is to be void on condition that the defendant " shall truly and faithfully 
 maintain" the plaintiff " during her life," «fcc., the presiding judge should 
 assess the damages. Philbrook v. Burgess, m. 271. Sibley v. Rider, 
 LIV. 463. 
 
 34. In such case, such sum should be assessed as will cover not only 
 present but prospective damages, — such sum as shall be an equivalent for 
 a full performance. Fhilbrook v. Burgess, lii. 271. Sibley v. Bider, 
 liiv. 463, 
 
132 DEBT. 
 
 35. A town collector, chosen in 1856, immediately entered upon and 
 continued his official duties^ without giving bond, until 1862, when, upon 
 request, he voluntarily gave a bond of the latter date, without sureties, 
 to the plaintiff, reciting that, whereas he had been appointed collector 
 for the year of 1856, conditioned " if he shall well and faithfully discharge 
 all the duties of said office, the said bond to be void," &c., Hdd, that 
 ■the bond was prospective and covered no past faults or omissions. Dam- 
 ages in such case. Scarborough v. Parker, liii. 252. 
 
 DAMAGES LIQUIDATED. 
 
 See CoNTKAOT, 52. Peactice, 68, 69. 
 
 DEATH. 
 
 See Evidence, 105. Executok, &c., 20. Peactice, 114. Sueett, &c., 10. 
 
 DEBT. 
 
 1. A judgment is vacated by an appeal ; and an action of debt cannot 
 be maintained upon it. Atkins v. Wymati, xlv. 399. 
 
 2. If a submission under seal (not in the statute form) contain the 
 condition, that judgment rendered on the report shall be final, and does 
 not provide for the return of the report to some court, an action of debt 
 may be maintained upon the award. Day v. Hooper, li. 178. 
 
 3. To support an action of debt for the recovery of land damages on 
 an award of a committee under the statute concerning ways, it must ap- 
 pear that the report and award of the committee, in favor of the plain- 
 tiff, were seasonably accepted by the commissioners, and duly recorded, 
 and that the proceedings on the original petition were closed and the 
 record completed. Bradbury v. Cumberland County, lii. 27. 
 
 See Bond, 14. 
 
 DEDICATION 
 See Wat, 11, 12, 16, 17, 76. 
 
DEED. 
 
 DEED. 
 
 I. PAETIBS. 
 II. EXECTJTIOIT, CONSIDBRATIOIT, AND CANCBLLATIOK 
 in. ACKNOWLEDGMENT, AND EBGISTKATION. 
 IV. ERRORS IN DEEDS. 
 
 V. VALIDITY AND EFFICACY. 
 VI. CONSTRUCTION. 
 
 (a) CONDITlOIfS, BESBEVATIONS, AKD EXCEPTIONS. 
 
 (b) BOITNDAniES. 
 
 (o) Geneeaily. 
 
 133 
 
 L PARTIES. 
 
 1. Although a deed of land from the State is not conclusive against a 
 title from another source clearly traced and legally established, yet it 
 cannot be overthrown by the production of a quitclaim deed of an earlier 
 date from a third party, without evidence of title in the latter. Gary v. 
 Whitney, XLvni. 516. 
 
 2. The power of corporations to pass title to land by vote is anoma- 
 lous, and limited to the single case of proprietors of common land, and 
 as to them rests entirely upon statute grant. Gary v. 'Whitney., xlyiii. 
 616. 
 
 3. The State may grant a title to land by a resolve directly, but, in 
 order to do so, there must be in the resolve words of grant, release, or 
 confirmation. But where the resolve does not contain any words of 
 grant, but simply authorizes or provides for the giving of a deed, the 
 title does not pass until the deed is executed. Gary v. Whitney, xlviii. 
 616. 
 
 n. EXECUTION, CONSIDERATION, AND CANCELLATION. 
 
 4. The only efiect of the usual clause in a deed acknowledging the pay- 
 ment of the consideration, is to estop the grantor from alleging that the 
 deed was executed without consideration. For every other purpose it 
 may be explained, varied, or contradicted, by parol proof. If the consid- 
 eration actually agreed upon has not been paid, of which the acknowl- 
 edgment is only prima facie evidence, the grantor may recover it. If 
 it has been overpaid by any mistake of the parties, or through any fraud 
 of the grantor, the grantee may recover back the excess. Goodspeed v. 
 Fuller, xi.vi. 141. Bassett v. JBassett, lv. 127. 
 
 6. A. having taken a deed of land from B. and given a mortgage back, 
 entered into possession ; but, at a subsequent period, by a verbal agree- 
 ment, A. sold to B. the right of redemption for a sum which B. paid in 
 hand ; and A. re-delivered the deed to B., it not having been recorded, 
 whereupon B. entered upon the land, occupied and improved it, claiming 
 to be the owner, and A., living for some years, repeatedly declared that 
 he had sold the land to B., Held, that this is insufficient to revest the 
 title in B., the mortgage remaining uncanceled. Patterson v. Yeaton, 
 XLvii. 308. 
 
134 DEED. 
 
 6. It seems, that the surrender or cancellation of an unregistered mort- 
 gage, or any instrument of defeasance only, revests the estate in the 
 mortgagor. And the surrender or cancellation of a deed not recorded, 
 and a conveyance by the first grantor to a third person without notice, 
 ■will give the latter a good title. Patterson v. Teaton, xLvn. 308. 
 
 7. But the surrender of a deed to the grantor, leaving uncanceled a 
 mortgage given to him to secure part of the purchase-money, is not suflS- 
 cient to revest the vphole title in him. Patterson v. Yeaton, xLvn. 308. 
 
 8. The levy of an execution upon land held by the debtor, under a,n 
 unrecorded deed, will not be defeated by his subsequent surrender of his 
 deed to his grantor, and the cancellation of it ; for thereby they could not 
 devest the creditor of the title he had acquired by the levy. And a sub- 
 sequent release by the grantor will convey no title. Sowe v. Willis, li. 
 226. 
 
 9. As between the parties to a deed, a consideration is not necessary. 
 Laher^ v. Carleton, liii. 211. 
 
 10. A deed executed, and left by the grantor with a third person by 
 request and direction of the grantee, is a sufficient delivery. Hatch v. 
 Pates, Liv. 136. 
 
 11. No one but a creditor of the grantor can avail himself of the ob- 
 jection that a deed was given without consideration. Hatch v. Pates, 
 LIT. 136. 
 
 12. Although a deed acknowledges the receipt of a consideration the 
 grantor may show that none was in fact received, when his purpose is to 
 recover the consideration and not to defeat the operation of the deed. 
 Passett Y. Passett, lv. 127. 
 
 in. ACKNOWLEDGMENT AND EEGISTEATION. 
 
 13. Ko evidence can be received to contradict the certificate of ac- 
 knowledgment for the purpose of making a deed ineffectual. Greene v. 
 Godfrey, xliv. 25. 
 
 14. A purchaser of real estate, having notice of a prior unregistered 
 deed, or other claim thereto, may, nevertheless, convey a perfect title to 
 a bona fide purchaser having no notice of such a claim. Pierce v. 
 Faunce, xlvii. 507. 
 
 15. So, also, a purchaser without notice of a prior equitable claim, or 
 right, may convey a perfect title to one who had notice thereof. After 
 an interest in real estate has passed to an innocent purchaser, .and is dis- 
 charged of its latent equities, it is thenceforth unimportant whether sub- 
 sequent grantees or assignees had or had not notice of the prior equita- 
 ble claims. Pierce v. Faunce, xlvii. 507. 
 
 16. A mortgage is^ro tanto a purchase ; and the Sowcs^/tcfe mortgagee, 
 or assignee of the mortgagee, without notice of a prior claim, is entitled 
 to the same protection as a hona fide grantee without notice. Pierce v. 
 Faunce, XLvn. 507. 
 
 17. The revised statutes, touching the recording of deeds of real es- 
 tate, has changed the former law, so that actual notice of an unrecorded 
 deed, to persons making claim to the estate subsequently to its delivery 
 
DEED. 135 
 
 from the same source, alone will postpone the latter to the former. Bich 
 V. Roberts, xlviii. 548. 
 
 18. Possession by the grantee of an unrecorded deed, in certain oases, 
 implied notice of title to subsequent purchasers, before the R. S. of 1841, 
 which required actual notice. Nor, to imply notice, was the occupation 
 required to be entirely exclusive. Boggs v. Anderson, l. 161. Ander- 
 son V. Boggs, l. 161. Clark v. Bosworth, Li. 528. BealY. Gordon, lv. 
 482. 
 
 19. This rule is still in force as to deeds made prior, even against con- 
 veyances made since. Clark v. Bosworth, li. 528. Beal v. Gordon, lv. 
 
 482. 
 
 20. Where husband and wife, who had long occupied a farm, con- 
 veyed it to their son, taking back a mortgage conditioned for their sup- 
 port, but omitted to have the mortgage recorded, and the mortgagees 
 still remained on the premises, they and the son constituting one family, 
 and all contributing to its support ; and, some years after the giving of 
 the former mortgage, the son made a second, to a third person, which 
 was duly recorded. Held, that second mortgagee, under the circum- 
 stances, should be regarded as having had notice of the legal title of the 
 former mortgagees, at the time of the conveyance to him. Boggs v. 
 Anderson, l. 161. 
 
 21. A levy will not be defeated by the debtor's surrender of an unre- 
 corded deed to the grantor and the cancellation of it ; and the grantor's 
 release to another party will convey no title. Howe v. Willis, li. 226. 
 
 22. It may be fairly inferred tfiat the person taking such release had 
 notice of the former deed, if the grantor in the first deed had, for years 
 before the levy, been in the exclusive possession of the premises, and after 
 the levy such releasee never claimed title to, entered upon the land, or 
 interfered with the possession of the execution creditor. Howe v. Willis, 
 LI. 226. 
 
 23. If a deed of one undivided half of certain premises therein de- 
 scribed, once completed and delivered, is, years afterwards, surrendered 
 for the purpose of striking out the words " one undivided half of," so 
 that its terms will embrace the whole of the premises, and it be again 
 delivered and accepted with intent that it shall take eifect and become 
 operative as an instrument of conveyance, the law will give it such effect, 
 although not reacknowledged. Bassett v. Bassett lv. 125. Bassett 
 V. Bassett, lv. 127. 
 
 IV. EEEORS IN DEEDS. 
 
 24.' The grantee in a deed, absolute in its terms, dated March 31, lS58, 
 gave to the grantor a bond, dated April 1, 1858, stipulating therein to 
 convey to the obligee, on certain conditions, a tract of land in Brewer, 
 " containing eight and eighty-six one hundredths acres, being a portion 
 of lot No. 4, in the first division; being the same premises this day con- 
 veyed to said " obligor by said obligee ; and the general description of 
 the land in the deed is the same except, the fractional part of "the acre, 
 which is therein described as being " sixty-eight one hundredths." Held, 
 (1) That the clerical error in the fractional part of the acre is corrected 
 by the boundaries ; (2) that there can be no reasonable doubt but that 
 
136 DEED. 
 
 the deed and bond refer to the same land ; and (3) there can be no need 
 of compelling the parties to resort to equity to reform the error. Brown 
 V. Holyoke, liii. 9. 
 
 See Equity, 169, 170, 171, 172. 
 
 V. VALIDITY AND EFFICACY. 
 
 25. The word "premises" in a deed of conveyance means everything 
 which precedes the habendum. ; and if the " premises " are descriptive 
 merely, and no particular estate be mentioned, the habendum becomes 
 efficient to declare the intention. Berry v. Billings., xliv. 416. 
 
 26. A deed of land " to have and to hold " to B. and his heirs is good, 
 although the grantee is not named in the " premises ; " and when the 
 habendum is not repugnant to the " premises " it is good and effectual. 
 Berry v. Billings, xliv. 416. 
 
 27. Ancient deeds of lands, of which the grantee entered into posses- . 
 sion, are to be upheld, although defective in form or execution ; and the 
 same rules may be applied to wills and levies of execution to some ex- 
 tent. Hill V. Lord, xlviii. 83. 
 
 28. The conveyance of two-thirds of a parcel of real estate in common 
 and undivided, by one who owns the whole in fee subject to the 
 right of dower of a widow, has no effect upon the right of dower. 
 Blanchard v. Blanchard, xlviii. 174. 
 
 29. A conveyance absolute in form only, for a consideration grossly 
 inadequate, the grantor retaining a valuable interest, made with the in- 
 tent, by both parties, to delay creditors, is void, as well against subse- 
 quent creditors and bona fide purchasers, as against existing creditors, 
 whether they have notice of the fraud or not. Wyman v. Brown, l. 
 139. 
 
 30. An estate of freehold, to commerce in futuro, can be conveyed by 
 a deed of bargain and sale, operating under the statute of uses. Wy- 
 man V. Brown, l. 139. Jordan v. Stevens, li. 78. Brovm v. Smith, lii. 
 141. 
 
 31. Conveyances which derive their validity from our own statutes, 
 and are executed in accordance therewith, will be upheld, although they 
 purport to convey freeholds to commence at a future day. Wyman v. 
 Brown, L. 139. 
 
 32. A conveyance of real estate made by a director of a bank to the 
 bank, based upon an obligation to third persons to induce them to be- 
 come sureties on the cashier's bond, and to make good a defalcation of 
 the' cashier which had occurred, is without legal consideration; a gift, 
 fraudulent in law, as against prior creditors, unless it appears he has suf- 
 ficient estate left to satisfy the claims of the creditors. Jose v. Hewett, 
 L. 248. 
 
 33. A quitclaim deed containing the following clause, written after the 
 habendum, viz. — " but the said " grantee " is not to have or take pos- 
 session till after my decease ; and I do reserve full power and control over 
 said farm during my natural life," is valid, notwithstanding it purports 
 to convey a freehold estate to commerce in futuro. Drown v. Smith, lii. 
 141, 
 
DEED. 
 
 137 
 
 34. If the deed of an insane person not under guardianship, obtained 
 without fraud and for an adeqjiate consideration, has never been ratified 
 or affirmed, it may be avoided by his heirs, not only as against his imme- 
 diate grantee, but also as against subsequent bona fide purchasers for 
 value and without notice. Hovey v. Hohson, Lni. 451. 
 
 35. A conveyance made without consideration, and for the purpose of 
 defrauding creditors, is void as well against subsequent as prior creditors 
 of the grantor. Marston v. Marston, liy. 476. 
 
 36. The date of delivery of a deed is the time when it first becomes 
 effectual as an instrument of conveyance. JEgery v. Woodard, lvi. 45. 
 
 VI. CONSTEUCTION. 
 
 (a) CONDITIOirS, BESEEVATIONS, AND EXCEPTIONS. 
 
 (b) • BOUNDABIES. 
 (C) G-BNBBALLT. 
 
 (a) Conditions, reservations, and exceptions. 
 
 87. The owner of a parcel of land conveyed by deed a part thereof, 
 reserving a strip at one end, three rods wide, for a road, if the town (in 
 which the land lies) should lay out and accept a road over it ; otherwise, 
 reserving the same for a private way. Held, that the fee of the whole part 
 described in the deed passed to the grantee, subject to the easement, for 
 a town way, if laid out ; otherwise, for a private way. Tuttle v. Walker, 
 XL VI. 280. 
 
 38. Where the right to use water from a dam and stream is granted, 
 with a proviso that the grant shall " in no case extend so far as to take 
 water when the same shall be wanted for the grist-mill," which is or may 
 be erected on or near the dam, this is an exception, rather than a reser- 
 vation, and is to be construed most strictly against the grantor ; and 
 the grantee and his representatives have no right to use the water so ex- 
 cepted for any but the specific purpose. Garland v. Sodsdon, xlvi. 
 511. 
 
 89. Where land was conveyed by deed, " excepting and reserving the 
 pine trees and pine timber standing and lying on said lot," the trees re- 
 main the property of the grantor. Goodwin v. Hubbard, xlvii. 595. 
 
 40. In a deed from A. to B. " reserving to C. a right to cross said lot 
 to the beach, and to take and haul away stones, gravel, sand, and sea- 
 weed, as he has hitherto done by shutting gates and bars," the phrase 
 " as he has hitherto done " does not limit the manner of crossing the lot, 
 but defines the right of taking and hauling away. Hodge v. Boothby, 
 XLTIII. 68. 
 
 41. Though this reservation may not pass such right to C, yet B., by 
 accepting the deed, is precluded from interfering with C.'s exercise of 
 such right, because the title of B. is only that of a stranger, as against 
 him. Hodge v. Boothby, xlviii. 68. 
 
 42. A reservation in a deed, saving to the public any right they may 
 have to take sea-weed from the premises, confers no rights upon any 
 one having no other title. HiU v. Lord, xlviii. 83. 
 
 43. Both a reservation and an exception must be a part, or arise out 
 
138 DEED. 
 
 of that which is granted in a deed. The difference is only that an ex- 
 ception is something taken back out of the estate, then existing and clear- 
 ly granted, whilst a reservation is somethmg issuing out of what is grant- 
 ed. Adams v. Morse, li. 497. 
 
 44. A reservation, in the conveyance of a saw-mill, of " all the slabs 
 made at said mill," is not valid, as against subsequent grantees. Adams 
 V. Morse, li. 497. 
 
 45. It is not a condition upon which the estate is held, and for breach 
 of which the grantor might enter and reinvest himself in the estate. 
 Adams v. Morse, li. 497. 
 
 46. Slabs thus reserved are not rent, but rather resemble profits, in- 
 come from use of the property, and such reservation is void, as repugnant 
 to the grant. Adams v. Morse, li. 497. 
 
 47. "When the reversionary interest to land leased is conveyed by the 
 owner, and, before the first quarter's rent is due under the lease, without 
 any reservation to the grantor in his deed, expressed in language fit and 
 appropriate, the rent will pass by deed. Gale v. Mdwards, lii. 363. 
 
 48. Where the deed conveying such reversion, declares the premises 
 are " subject to the lease," describing it, and the grantor covenants to 
 defend against all lawful claims, &c., " except said lessees or assigns ; " 
 these words are only intended as a protection against the general cove- 
 nants of warranty, against the claims and demands of the lessees, and not 
 the grantor's claim against them. Qale v. Edwards, lii. 363. 
 
 49. A parol reservation of growing crops, made either before or at the 
 time of the making and delivery of a deed of warranty, cannot control 
 the legal effect of the deed. Brown, v. Thurston, lvi. 126. 
 
 See Condition, 7, 12. 
 
 (b) Boundaries. 
 
 50. By the deed of a parcel of land, the east line of which is described 
 " thence east until it strikes the creek on which the mill stands, thence 
 south-westerly on the west bank of said creek" (which is a small innav- 
 igable fresh-water stream), the grantee is restricted to the bank of the 
 creek. And such grant does not extend to the centre or thread of the 
 stream, unless there are, in the deed, other words indicating that such 
 was the grantor's intention. Bradford v. Cressey, xlv. 9. Stone v. 
 Augusta, xlti. 127. 
 
 51. "Where a grant is bounded upon a non-navigable fresh-water 
 stream, a highway, or ditch, or party wall, and the like, such stream or 
 highway, &c., is deemed to be a monument, located equally upon the 
 land granted, and the adjoining land, and the grant extends to the cen- 
 tre of such monument. Bradford v. Cressey, xlv. 9. 
 
 52. Monunients, referred to in a deed, must, generally, prevail over 
 courses and distances ; but where there is such a wide departure from 
 the courses and distances laid down, that some of the monuments are 
 evidently erroneous, or conflict with each other, some elements in the 
 description may be discarded or essentially modified, if, from all the facts, 
 it appears that such construction is necessary to effect the manifest in- 
 tention of the parties. Hamilton v. Foster, xlt. 32. 
 
DEED. 
 
 139 
 
 53. The owner of land, claiming under a deed by whicli the premises 
 are bounded on the line of a street, which was never made or used as a 
 street, but of which there was on record a description and plan made un- 
 der a void location, to which the deed refers, cannot recover pay for the 
 land to the middle of the street, upon a subsequent location thereof, his 
 title extending only to the line of the street. Franklin Wharf Co. v. 
 Portland, xlvi. 42. 
 
 54. Where one of the boundaries of land conveyed by a deed was, 
 "thence to mill-brook, thence by the bank of said brook to," &o.. Held, 
 that the grantee's land is bounded by ordinary high-water- mark; and 
 this principle is not changed by the fact, that the land continues to rise 
 more or less precipitously above that point. His land is not limited to 
 the top of the hill or bank beside the stream, but extends to the margin 
 of the stream. Stone v. Augusta, xlvi. 127. 
 
 55. The first part of a description of land in a deed, answering equal- 
 ly well the hypothesis of either party, as to the boundaries of the land 
 conveyed, the intention of the parties to the deed must be discovered by 
 the concluding part, if that renders the description certain. Madden v. 
 Tucker, xlvi. 367. 
 
 56. The principle of law, that a deed of land adjoining a stream or 
 body of water carries with it adjoining flats, applies to islands as well as 
 to the mainland, and to conveyances made after as well as before the 
 c(|^)nial ordinance of 1641. Hill v. Lord, XLvm. 83. 
 
 57. In deeds and levies, courses and distances can be controlled only 
 by monuments. Chadbourne v. Mason, xltiii. 389. JBeal v. Gordon, 
 LV. 482. 
 
 58. A deed conveying a mill, "together with the land and privilege 
 where the same is situated, necessary for and attached to said mill, here- 
 by meaning to convey all the land and mill privilege not heretofore sold 
 by us, on the dam connected with said mill and privilege," may be con- 
 strued to carry not only the land on which the mill stands, but land at- 
 tached to it, necessary for its existence. But whether it conveys land 
 above the dam, previously set apart for a road, by a lease with the right 
 of perj)etual renewal, qumre. JSsty v. JBaker, xlviii. 495. 
 
 59. A. conveyed to B. a portion of a lot of land of a certain width, 
 and extending so far in length " as will make precisely twenty acres ; " 
 and immediately afterwards A. and B., by mutual agreement and survey, 
 marked the lines and corners of the granted premises by spotted trees 
 and stakes. The next year A. conveyed to C. the remainder of the lot, 
 more or less, bounding it on the east " by the west line of B.'s land." 
 B. and C. occupied their several parcels according to the line marked by 
 A. and B., for about twenty-five years. In the mean time, B., by the de- 
 cision of a lawsuit between him and a third party, had his lot widened 
 on one side four rods, and in consequence relinquished two rods on the 
 other side. C, without any suit, conformed his lines to B.'s new ones; 
 but the division line between B. and C, and their occupation of their re- 
 spective parcels, continued as before. In an action brought by C.'s 
 grantee to recover of B.'s grantee all of the original lot except twenty 
 acres. Held, that the parties intended, in the conveyance from A. to C, 
 to bound the land conveyed by the well-known marked line then exist- 
 ing, and not by an imaginary west line of B.'s land to inclUdet herein 
 precisely twenty acres. Fought v. Holway, l. 24. 
 
140 DEED. 
 
 60. Where a deed of part of a township refers to a survey and plan 
 of the township by A. and B., surveyors, and it appears that A. and B. 
 have never made any survey, and plan jointly, but after A. had surveyed 
 the exterior lines of the township, B. took A.'s field notes, surveyed the 
 interior lines, and made a plan of the township, and it is shown that 
 other deeds have been made by the same grantor, with a similar refer- 
 ence under like circumstances, the plan and survey made by B. with the 
 help of A.'s field notes, may be regarded as the one referred to in the 
 deed. Black v. Grrant, l. 36i. 
 
 61. Where a deed conveys the south half of a lot of land in a town- 
 ship, "butted and bounded as follows," and then proceeds to describe the 
 whole of the south half of the township, up to the south line of land 
 deeded to G. (the owner of the north half), it will be construed to con- 
 vey the south half of the township ; as, in a case of doubtful coustruc- 
 tion, a deed is to be construed most strongly against the grantor, and in 
 favor of the grantee. Black v. Grant, l. 364. 
 
 62. The line of a parcel of land to run parallel with and at a specified 
 distance from the south side of a building should be measured from the 
 corner board of that side, and not from the outer edge -of the cases. 
 Centre St. Church v. Machias Hotel Co., li. 413. 
 
 63. The defendant's deed described his land as the west half of a cer- 
 tain lot " as surveyed by I. J. and I. B., by order of the court of sessions ; " 
 but no survey of it had ever been made, except by one H. by whoqja 
 divisional line had been run, and according to which the parties had oc- 
 cupied, ignorant of the fact that the line did not equally divide the lot; 
 in such case, the language of the deed would seem to indicate an inten- 
 tion to convey a particular part of the lot, as already divided, and not 
 an undivided part yet to be divided. Abbott v. Abbott, ii. 575. 
 
 64. Where the eastern boundary of the land conveyed was a line 
 " as surveyed by I. J. and I. B.," if they never had made any survey, there 
 was a latent ambiguity in the deed. If a dividing line had been made 
 by another person, whether the parties referred to his survey, would be 
 a question of fact. Abbott v. Abbott, li. 575. 
 
 65. The words "from" an object, or "to" an object, used in a deed, 
 exclude the terminus referred to. Sonney v. Morrill, lii. 252. 
 
 66. Where a call in a deed is expressed as follows : " thence easterly, 
 about thirty-five feet to land now or formerly owned by I. B., thence by 
 I. B.'s land," &c. ; and, previously thereto, the grantor in such deed had 
 conveyed to I. B. by deed of warranty, not recorded, a two-foot strip of 
 land oif from the side of his land adjoining I. B.'s land, so that the said 
 call might cover the two-foot strip, Held, the court would not presume 
 that the grantor intended to defraud his prior grantee ; that the language 
 excluded all the land which I. B. then owned, or had at any previous 
 time owned there ; and that I. B. did not the less own the two-foot strip 
 that his deed was not recorded. Bonney v. Morrill, lii. 252. 
 
 67. Where a road was located in 1798, and, prior to 1814, it was 
 changed by user to a place three rods northerly of the location ; and 
 deeds, subsequent to the change, describe land as bounded " on the road ; " 
 there is no rule of Ifiw that applies such words of description in the 
 deeds to the road as located. Tebbetts v. JSstes, lii. 566. 
 
 68. Where the premises in a deed were described as the " north half of 
 the double dwelling-house, situate," &c., " together with the land under 
 
DEED. 141 
 
 the same, and the land used with it and belonging thereto, and all out- 
 buildings and fences thereon and thereto belonging, being the same 
 premises heretofore occupied by me as a dwelling-house ; " and there 
 was a barn connected with the house, which had previously been occu- 
 pied by the grantor, Held, (1) that the words " belonging thereto " refer 
 to the house and not to the grantor ; (2) that the words " outbuildings 
 thereon " mean the outbuildings on " the land used with " the house ; (3) 
 that the barn was one of the outbuildings; and (4) that the deed con- 
 veyed the bam and the land on which it stood. Woodman v. Smith, 
 LHI. 79. 
 
 69. Open, notorious, exclusive, and adverse possession of upland adja- 
 cent to flats, and of portions of the flats, for twenty years, under a deed 
 duly recorded, gives a title to all the flats fronting such upland and de- 
 scribed in the deed. JBracJcett v. Persons Unknown, mi. 228. Brackett 
 V. Persons Unknown, Lin. 238. 
 
 70. A description in a deed " thence north-easterly as Fore river runs," 
 includes the flats to the middle of the river. Brackett v. Persons Un- 
 known, Liii. 288. 
 
 71. Where several particular descriptions of the land intended to be 
 conveyed by a deed are named therein, some of which are false, if the 
 true are sufficient to designate the land, the false will be rejected. Ab- 
 bott V. Abbott, LIII. 356. Beal v. Gordon, lv. 482. 
 
 72. Where the land described was the "west half of lot 284 ... as 
 surveyed by I. B. and J. B., by order of the court of sessions ; " when 
 in fact I. B. and J. B. never surveyed it by order of any court, but as a 
 committee of the court of common pleas, duly partitioned said lot, assign- 
 ing the " west half" to the defendant's grantor, and the east half to the 
 plaintiff's grantor, Seld, (1) that the latter words referred to the parti- 
 tion made by order of the court of common pleas, and not to a former 
 partial survey made by one J. H., at the request of the then owner, but 
 never adopted by him; (2) that if the latter words were to be rejected 
 as erroneous, then the words " west half of lot 284 " are a sufficient de- 
 scription to pass the title. Abbott v. Abbott, liii. 356. 
 
 73. Where the last call in a deed describing the territory in township 
 No. 21 was from an undisputed point of departure, " thence south-westerly 
 by a hue to be run between townships number 21 and number 22 to the 
 place of beginning," Held, that the call repudiated all former lines be-- 
 tween the termini mentioned, and the line to be run must be the short- 
 est distance between the points named. Orant v. Black, liii. 373. 
 
 74. And the subsequent clause, " according to a survey and plan of 
 said township by V. & D.," will not control or modify the preceding 
 language. Grant v. Black, lhi. 373. 
 
 75. An instruction to the jury that another line admitted to have been 
 run by the proprietors prior to the date of the deed to the plaintiffs, pur- 
 porting to be the true line between townships 21 and 22, was the con- 
 troling monument answering the call, and that the point of departure 
 must be rejected as inconsistent with the other and superior monument 
 referred to in the deed, is erroneous. Grant t. Black, Lin. 373. 
 
 76. A grant of a "perpetual right of way into and through a passage- 
 way twelve feet in width, lying in the rear of houses numbered 81 and 
 83, into Congress street," conveys, in the absence of other controling 
 evidence, a right of way twelve feet wide, one line of which is identical 
 
142 DEED. 
 
 ■with the rear line of lots 81 and 83, extended to Congress street. And 
 no part of such line can be subsequently changed by the grantor alone. 
 Gore V. Fitch, tiv. 41. 
 
 77. Where land is described in a deed as " beginning at a stake and 
 stones and southerly corner of" the grantor's "land, thence north 45" 25' 
 west, formerly 45* N". "W., on said " grantor's and H. R.'s " line, to a cedar 
 stake," &c. ; the true corner of the grantor's land is the place of begin- 
 ning, whether it be identical with the location of the stake and stones 
 mentioned or not, and the true line of the grantor and H. R., is the 
 boundary upon that side. Wiswell v. Marston, jay. 270. 
 
 78. Neither will it make any difference that the grantor and a former 
 owner of the adjacent land (now owned by the defendant) had occupied 
 up to the line indicated by the stakes and stones for ten years ; or that, 
 before conveying to the defendant, the plaintiff, with a surveyor, estab- 
 lished the stake and stones as monuments, and intended to constitute 
 them the bounds, and the defendant supposed them to be the two bounds 
 when he accepted the deed. Wiswell v. Marston, liv. 270. 
 
 79. Where an owner of land surveyed and laid out into lots, with a 
 street represented upon the recorded plan as running east and west be- 
 tween the two ranges of lots, simultaneously conveyed the south range 
 to the defendant, commencing at the west end of the "southerly line of 
 the street as laid down on " the plan, thence south and east certain speci- 
 fied distances, thence north, up a specified stream, "to a point where a 
 line drawn from the point of beginning, at right angles with " the first 
 line "would strike said stream, tlience westerly at right angles with" 
 the first line, "to the place of beginning;" and the north range to the 
 plaintiff, commencing at the west end of the " southerly line of" the street 
 " according to the plan, thence easterly by the line of said street, as laid 
 down on said plan to the " stream, "thence north and west," certain 
 specified distances, " thence southerly " by a specified line, to the place 
 of beginning, Held, that the fee in all of the land covered by the street 
 passed to the latter and not to the fonner. Warren v. Slake, liv. 276. 
 
 80. The clauses in the deed to the grantor of the defendant, " with the 
 buildings thereon," and "to have and to hold the above-granted premises 
 with all the privileges and appurtenances thereto belonging," will not 
 pass the fee to so much of said street as is covered by the north end of 
 the brick stable erected on the south range of lots, nor to the passage- 
 way thereto, subject to an easement, to the plaintiff to pass thereon to 
 his pasture. Warren v. Blahe, liv. 276. 
 
 81. If the owner of two adjoining closes, over one of which a conven- 
 ient passage-way exists for the benefit of the other, simultaneously con^ 
 veys them to two different purchasers, the right to use the passage-way 
 will not pass as an easement or appurtenance to the purchaser of the lat- 
 ter close, unless such use be a matter of strict necessity. Warren-Y. 
 Blake, liv. 276. 
 
 82. A conveyance of " a grist-mill in Houlton, on the Meduxnekeag 
 stream, now owned and occupied by us^ with all the appurtenances and 
 machinery thereunto belonging, together with the land and privileges 
 where the same is situated, necessary for, and attached to said grist-mill ; 
 hereby meaning and intending to convey all of the lands and mill privi' 
 leges (not heretofore sold by us) on the dam connected with said grist- 
 mill and privilege," conveys so much of the " land and privileges where . 
 
DBBD. 
 
 143 
 
 the mill is situated," as the jury shall find it is necessary for and attached 
 to said grist-mill ;" also, all the "lands and mill privilege," situated on 
 the same dam, not before sold by the grantors, whether " necessary for 
 and attached to said grist-mill " or not. Page v. Esty^ lit. 319. 
 
 83. Where a call in a deed bounds one side of the land therein con- 
 veyed " by the new county road leading from " a place named, " to " an- 
 other place named, and the road as located by the commissioners, and that 
 as actually wrought and traveled, are not identical, the latter alone will 
 answer the call. Sproul v. Foye, lt. 162. 
 
 84. In the description of land in a deed, monuments govern courses. 
 Beal V. Gordon, lv. 482. 
 
 85. Repugnant calls in a deed may be rejected, when the remaining 
 calls are sufficient and consistent with the intention of the parties to up- 
 hold the deed. Heal v. Gordon, lt. 482. 
 
 (c) Generally. 
 
 86. By a deed, which, from its terms, conveys only the right, title, and 
 interest of the grantor, the grantee does not obtain anything which the 
 grantor had previously parted with, although the subsequent deed was 
 first recorded. WaUcer v. Lincoln, xlv. 67. 
 
 87. By a mortgage bill of sale of " all the desks, chairs, trunks, and of- 
 fice furniture in" a certain office, the mortgagor intended all the articles 
 of use in the office at the time should pass ; and an iron safe, which was 
 then used there, would be embraced as an article of office furniture. 
 Showhegan Bank v. Farrar, xlvi. 293. 
 
 88. Where a right to use water for a specific purpose is granted, with- 
 out being appurtenant to a grant of land, the presumption is strong that 
 the grant is intended to be limited to the purpose named. Garland -t. 
 Hodsdon, xlvi. 511. 
 
 89. But if the grant is appurtenant to land conveyed by the same deed, 
 unless the contrary intention is Clear, the use designated will be taken 
 merely as the measure of the water granted, which the grantee may use 
 for that or for other purposes. Garland y. Hodsdon, xlvi. 511. Go- 
 vel V. Sdrt, lvl 518. Kaler v. Beaman, xlix. 207. 
 
 90. The term "beach," when used in reference to places near the sea, 
 means the land between the lines of high-water and low-water, over 
 which the tide ebbs and flows. Hodge v. Boothby, XLvni. 68. 
 
 91. Permission by the land-owner to certain persons to cross his land 
 and take sea-weed therefrom, without proof of a deed, cannot avail other 
 persons, long after his decease, against subsequent purchasers of the land. 
 Hill V. Lord, xlviii. 83. 
 
 92. The right to take sea-weed may be conveyed by the owner of an 
 estate, without conveying the soil, even of the flats, or it may be acquired 
 even by prescription. HiU v. Lord, xlviii. 83. 
 
 93. Where a deed does not specify the number of acres intended to 
 be conveyed, and the quantity of land depends upoa the boundaries of 
 the lot as located, and these boundaries do not depend on any given or 
 proved quantity of land, it cannot affect the construction of the deed. 
 Gardner v. Gooch, xLvin. 487. 
 
144 DEED. 
 
 94. A deed of a right of way from the highway to grantee's mill, gives 
 him no right to pile lumber on the sides of the way. Kaler v. Beaman, 
 XLix. 207. 
 
 95. In a grant of water power, the words "water enough, applied to 
 an overshot wheel, to carry a gang of thirty marble saws, or a six horse 
 power," do not restrict the manner of using the water, but describe the 
 quantity granted. Kaler v. Beaman, xlix. 207. 
 
 96. When a person quitclaims his title in land, by a deed containing 
 no covenants, and closing in these words : " So that neither I, the said, " 
 grantor, " nor my heirs, or any other person or persons claiming from or 
 under me or them, or in the nanie, right, or stead of me or them, shall or 
 will, by any way or means, have, claim, or demand any right or title to 
 the aforesaid premises, or their appurtenances, or any part or parcel 
 thereof forever," a title subsequently acquired by him does not enure to 
 the benefit of his grantee. Sarriman v. Gray, xlix. 537. 
 
 97. Where the title to separate and distinct parcels of land has become 
 united in one person by purchase from their various owners, and the 
 purchaser afterwards conveys certain described portions of the whole, 
 the rights of his grantees will depend upon the unambiguous language of 
 their respective deeds, unafiected by the previous occupation of former 
 owners, or by previous conversations or vague understandings. Blake 
 V. Ham, L. 311. 
 
 98. If a part of the premises demanded is a passage-way, to the line of 
 which the tenant is bounded, the demandant will be entitled to recover, 
 the fee of the land being in him, notwithstanding the tenant may have 
 an easement in the passage-way. Blake v. Ham, l. 311. 
 
 99. If a deed contains two descriptions of the land conveyed, which 
 do not coincide, the grantee is entitled to hold under that which will be 
 most beneficial to him. Esty v. BaJcer, l. 325. 
 
 100. If some of the particulars of the description of land conveyed do 
 not agree, those which are uncertain, and liable to error or mistake, must 
 be governed by those which are more certain. Esty v. Baker, l. 325. 
 
 101. In a deed conveying a grist-mill, with land and privilege where 
 it is situated, " necessary for and attached to said grist-mill, hereby mean- 
 ing to convey all the lands and mill privilege (not heretofore sold by us) 
 on the dam connected with said grist-mill and privilege," the effect is to 
 convey all the land and privilege not before sold by the grantor, and 
 connected with the miU and privilege, and not merely what is strictly 
 necessary for and attached to the mill. Esty v. Baker, i. 325. 
 
 102. But if the parties have, by their acts and occupation, treated the 
 grant as embracing, not all the lands and privilege on the dam not pre- 
 viously sold, but all the lands and privilege connected with the grist- 
 mill not previously sold, the court will not interfere to control their con- 
 struction. Esty V. Baker, l. 325. 
 
 103. If possible, the intention of the parties, as apparent in the deed, 
 should govern its construction ; and if the line intended by the parties 
 can be ascertained, that must be conclusive. Abbott v. Abbott, li. 575. 
 
 104. When one, jointly with others, signs, seals, and delivers an in- 
 strument supposed to be a perfect deed, but his name appears in no other 
 part thereof, his interest in the premises described is not thereby con- 
 veyed. Peabody v. Hewett, lii, 33. 
 
DEMAND. 
 
 145 
 
 105. Where the reversionary interest to land leased is conveyed by 
 the owners, and, before the first quarter's rent is due under the lease, 
 without any reservation to the grantor in his deed, expressed in lan- 
 guiige fit and appropriate, the rent will pass by the deed. Gcde v. Ed- 
 wards, Ln. 363. 
 
 106. Thus where the deed declares the premises are " subject to the 
 lease," describing it, and the grantor covenants to defend against all law- 
 ful claims, &c., " except said lessees or assigns," these words were only 
 intended as a protection against the general covenants of warranty, 
 against the claims and demands of the lessees, and not the grantor's 
 claim against them. Gale v. Edwards, lii. 363. 
 
 107. To determine the true construction of a deed, it is propertolook 
 at its origin and the sources of its derivation, as well as to the then ex- 
 isting state of facts. Abbott v. Abbott, liii. 356. 
 
 108. Timber trees, cut down and lying at full length upon the ground 
 where they grew, will pass by a deed of land. Brachett v. Qoddard, 
 Liv. 309. 
 
 109. A conveyance of leased premises by the lessor makes the grantee 
 the landlord of the lessee, with the right to possession upon a forfeiture 
 for breach of the conditions of the lease. Page v. Esty, liv. 319. 
 
 110. The owner of the land on both banks of a stream, together with 
 the water power created by a diim across it, having a tannery on one 
 side and a saw-mill on the other, conveyed the tannery, together with 
 the land connected with it, and also "a right to, draw water from the 
 saw-mill flume sufiicient to carry on the business of tanning in said yard," 
 the grantee, " his heirs or assigns to make or pay for one-fourth part of 
 all necessary repairs on the dam ; " " to have the right to draw water as 
 aforesaid, sufficient to carry on the tanning in said yard, in its various 
 branches in common with " the grantor ; to have the privilege of using 
 more water than aforesaid, when there shall be waste water running over 
 or around the dam ; " and the grantor, " his heirs or assigns, is to have 
 the right to increase machinery or mills upon his privilege to any extent 
 that he or they may choose, and to use all the water except what has 
 herein been conveyed for the use of said tan-yard, if he or they shall 
 choose." In an action involving a construction of the graiit, , Held, (1) 
 That, by the terms of the deed, the grantee acquired an absolute and 
 prior right to the use of the quantity of water named ; (2) That the 
 grant was of a fixed measure of power to be used for any purpose, and 
 not to be confined to that of tanning ; and (3) That the measure of pow- 
 er was restricted to that used or required, at or about the date of the 
 grant, " in carrying on tanning in said yard in its various branches." Oo- 
 vel V. JTart, lvi. 518. Hart v. Covel, lvi. 518. 
 
 See Akbiteation, 20. 
 
 DEMAND. 
 
 1. Neither demand nor notice is necessary before bringing suit, under 
 Public Laws of 1842, c. 9, § 5, for injury by fire communicated by a lo- 
 comotive engine. Stearns v. At. & St, L. R. B. Co., xlti. 95. 
 10 
 
146 DEPOSITION. 
 
 2. On a contract for services to be paid for "out of the store" of a 
 third person, an action may be maintained without proof of a demand of 
 payment at such store. JBragdon v. Poland, li. 323. 
 
 3. If one, under duress, pays a tax wrongfully assessed on him, and 
 the money goes into the treasury of the town, he may recover the amount 
 in an action against the town, without first making a special demand 
 therefor. Look v. Industry, li. 375. 
 
 4. If the plaintiff convey land to the defendant, in consideration of the 
 latter's parol promise to convey certain other land to the former, and the 
 defendant refuses to execute such promise, the plaintiff need not demand . 
 a deed from the defendant before commencing his suit for the value of the, 
 land thus conveyed, if the defendant had put it out of his power to com- 
 ply with such demand, by conveying to another the land thus promised, 
 to be conveyed to the plaintiff. Bassett v. Bassett, i.v. 127. 
 
 See Aebitration, 13. 
 
 AsStTMPSIT, 11. 
 
 Attachment, 61, 63, 71, 72, 73, 74, 76. 
 
 Bills, &c., 24. 
 
 Bond, 20. 
 
 Case, 6. 
 
 Corporation, 41. 
 
 DowEE, 25, 27, 28, 29, 32, 36, 37, 38. 
 
 Mortgage, 81, 82, 154. 
 
 Teovee, 23, 27, 28. 
 
 DEPOSITION. 
 
 I. WHEN ADMISSIBLE IN EVIDENCE. 
 II. CAPTION, NOTICE, TAKING, &C., OP DEPOSITIONS. 
 
 I. "WHEN ADMISSIBLE IN EVIDENCE. 
 
 1. By virtue of c. 242 of the Public Laws of 1852, no statement con- 
 tained in any deposition taken in perpetuam can be given in evidence 
 against the deponent, or any one claiming under him. Dvjinel v. God- 
 frey, XLiv. 65. 
 
 2. The deposition of a party may be taken in the same manner as that 
 of any other witness, and may be used in a case where his testimony, as 
 a witness, is admissible. Kidder v. Blaisdell, xlv. 461. Bliss v. Shu- 
 man, xLvii. 248. 
 
 3. A party to a suit, being, by the express provisions of the statute, a 
 witness, c. 107, of R. S., relating to depositions, is as applicable to him 
 as to any other witness. Bliss v. Shuman, xlvii. 248. 
 
 4. Under R. S., c. 107, § 20, a deposition taken out of this State by a 
 justice of the peace or notary of the State where it is taken, or any other 
 person lawfully empowered, is legally receivable in evidence, at the dis- 
 cretion of the presiding judge, although the caption does not conform in 
 
DEPOSITION. 
 
 147 
 
 all respects to the statute requirements for depositions taken in this State. 
 And when he affixes to his name, in the certificate, his official character, 
 it is prima facie evidence of qualification to act in that capacity. 8tate 
 V. Kimball, l. 409. 
 
 5. When the caption in such a deposition recites that " it was written 
 by the authority of the undersigned, justice of the peace," and omits to 
 state that it was written by him, or in his presence and under his direc- 
 tion, and there is a clerical error as to the term of the court to which the 
 deposition is returnable, it, nevertheless, may, at the discretion of the 
 court, be received as evidence. /State v. Kimball, l. 409. 
 
 6. By the 24th Rule of the Court, no deposition taken without the 
 State, without a commission, shall be admitted in evidence, " unless the 
 adverse party was present, or was duly and seasonably notified but neg- 
 lected to attend." Brown v. Ford, lii. 479. 
 
 7. Depositions taken out of the State at the request of the defendant, 
 on notice to an attorney who was not then and never had been an attor- 
 ney of record for the plaintiffs, bat who, it appeared by other depositions 
 in the case, had been employed to appear for them in the taking of sun- 
 dry other depositions without the State, and who in one or more instances 
 had signed an agreement that a deposition, taken in this case, might be 
 used in another cause in which the plaintiffs were the same, are not ad- 
 missible. R. S. of 1857, c. 107, §§ 7 and 8. Brown v. Ford, lii. 479. 
 
 8. When the answer to a certain interrogatory in a deposition given 
 by a deponent to be used in a former suit between the parties, is read by 
 the defendant to contradict such deponent's statement made in a deposi- 
 tion in the present suit, the plaintiff may read all of such answers in the 
 former deposition as pertain to the same subject, but none other. Web- 
 ster V. Calden, lv. 165. 
 
 See Peactice, 121. 
 
 II. CAPTION, NOTICE, TAKING, &C., OP DEPOSITIONS. 
 
 9. Under R. S. of 1841, c. 133, § 17, the caption of a deposition, recit- 
 ing that "the said deponent was first sworn according to law and then 
 gave the foregoing deposition," contains a sufficient statement under the 
 first requirement. Lewis v. Soper, xliv. 72. 
 
 10. This court will take judicial notice of the towns composing the 
 different counties in this State, and the times when, and the places where, 
 its sessions appointed by law are to be held ; and, where a deposition, 
 taken within any county within the State, which, by its caption, is re- 
 turnable before the court at a time and place appointed by law within 
 such county, it will not presume that such deposition is, or may be, re- 
 turnable before the court in any other county and State, but the contra- 
 ry. Kidder v. Blaisddl, xlv. 461. 
 
 11. Thus, where it appeared from the caption that a deposition was 
 taken within the county of Somerset, and State of Maine, to be used in 
 an action of dower pending between those parties before the supreme ju- 
 dicial court, and to be tried at "Norridgewock on the 16th day of March 
 1853," it was held to be sufficient. Kidder v. Blaisdell, xlv. 461. 
 
 12. The caption which states, " the adverse party was duly notified 
 
148 DESCENT AND DISTRIBUTION. 
 
 to attend and was not — ," may be clearly understood, and cannot be 
 regarded as substantially defective. Kidder v. Blaisdell, xlv. 461. 
 
 13. Where the court adjourned on the 22d to the 29th of a certain 
 month, and the plaintiff's attorney gave legal notice of his intention to 
 take a deposition on the 26th of the same month in the town where the 
 defendant's attorney resided, Held, that the deposition was not taken 
 " during term time " within the meaning of the 23d rule of the court. 
 Holmes v. Sawtelle, liii. 179. 
 
 14. The court will not, on motion of the plaintiff, order the defendant 
 to produce a deposition taken by the latter and read in a former trial of 
 the same case, unless upon evidence that the deposition had been filed 
 by the clerk. Webster v. Golden, lv. 165. 
 
 See Attoenet & Cotjnsellob, 5, 6. 
 
 DESCENT AND DISTRIBUTION. 
 
 1. Under Public Laws of 1852, c. 295, if one die intestate, and at the 
 time of his death, the next of kin are nephews and nieces, the children 
 of a deceased nephew of the intestate take, by representation, the share 
 of the intestate's estate, to which the parent would be entitled, if alive. 
 Doane v. Freeman, xlv. 113. But see § 5. 
 
 2. R. S. of 1841, c. 93, § 16, by which the husband of one who died 
 intestate was entitled to the residue of her personal property, after the 
 payment of her debts, &c., was not repealed by c. 73 of the Public Laws 
 of 1848, which provides that the real and personal estate of a married 
 woman, who shall die intestate, shall descend or be distributed to her 
 heirs. Mace v. Cushman, xlv. 250. 
 
 3. The assignee of one of the heirs of a deceased person is not en- 
 titled to a decree that the distributive share of the assignor shall be 
 paid to him by the administrator ; otherwise, a judge of probate would 
 exercise common-law jurisdiction in matters between contesting par- 
 ties, not relating to acts of the intestate, but to contracts of the heirs 
 after his decease. JSnowlton v. Johnson, xlvi. 489. 
 
 4. The several rules in R. S., c. 75, § 1, relating to the descent of real 
 estate, are distinct, and each is to be construed separately and with ref- 
 erence to the conditions therein respectively set forth. Davis v. Stin- 
 son, LIII. 493. 
 
 5. If a person die, leaving no issue, father, mother, brother, or sister, 
 but does leave nephews, nieces, and grand-nieces, his real property will 
 descend in accordance with the fifth rule, and the grand-niece will have 
 no claim. Davis v. Stinson, lhi. 498. 
 
 See ExECUTOE, &c., 14, 15. Peobatb Cottet, 22, 23. 
 
DESEKTER. — DEVISE AKD LEGACY. 
 
 149 
 
 DESERTER. 
 
 1. A private in the military service of the U. S., who does not rejoin 
 his company or regiment at the expiration of his furlough, may be ar- 
 rested as a deserter. Mickey v. Iluse, lyi. 493. 
 
 2. The act of congress of March 3, 1863, c. 75, § 7, made it the duty 
 of provost marshals to arrest all deserters wherever found. Sichey v. 
 Huse, LYI. 493. 
 
 3. No warrant is necessary for the arrest of a deserter. Sichey y. 
 Huse, LYI. 493. 
 
 4. Provost marshals had a right to appoint assistants ; and such as- 
 sistants, while acting within the line of their duty, are entitled to the 
 same protection as provost marshals. Hickey v. Iluse, lyi. 493. 
 
 5. A suit commenced Dec. 11, 1866, for an arrest made Sept. 10, 
 1864, is barred by § 7 of the act of congress of March 3, 1863, and § 1 
 of May 11, 1866. Hickey v. Huse, lyi. 493. 
 
 DEVISE AND LEGACY. 
 
 I. OF LEGATEES AND DEVISEES, AND THEIK SEISIN. 
 II. WHEN A DEVISE IS IN FEE, OB OTHERWISE. 
 III. WHETHER A DEVISE OR LEGACY IS SPECIFIC, ABSOLUTE, 
 
 CONTINGENT, CONDITIONAL, OR OTHERWISE. 
 IV. REMEDIES. FOR AND AGAINST. 
 
 V. GENERALLY. 
 
 I. OP LEGATEES AND DEVISEES, AND THEIR SEISIN. 
 
 1. Where one, by will duly proved, devised land to his daughter and 
 her husband during their natural life, then to his daughter's heirs after 
 her, the heirs' right of possession will remain twenty years next after 
 the death of the survivor of the joint tenants. Moulton y. Edgcomb, 
 LII. 31. 
 
 2. A testator bequeathed to trustees named $40,000, to be " kept 
 safely invested for twenty-five years " after the testator's death, " for the 
 use and benefit of his two grandchildren" named, to be paid to them at 
 the end of said twenty-five years ; the interest thereon " to be invested 
 and added to the principal, and neither principal nor interest to be dis- 
 tributed till the expiration of the twenty-five years aforesaid," and the 
 trustees to withhold its distribution even then, " if in their opinion it 
 would be liable to be wasted or squandered by the improvidence of the 
 person entitled to it, except the interest that may arise therefrom from 
 time to time as needed." In case either of the grandsons should die 
 without issue, before the time of distribution, his share is to go to the 
 survivor ; but if both should die, without lawful issue or lineal descend- 
 ants, before said'fund becomes distributable, said fund is devised over 
 
150 DEVISE AND LEGACY. 
 
 to the testator's brothers or their lineal descendants." The residue of 
 his property he devised to a trustee named in trust for the benefit of per- 
 sons after named subject to certain specified charges, and the "residue, 
 to be distributed in the same manner and to the same persons and at 
 the same time as the 840,000 fund," Held^ (1) That the grandsons 
 named take vested interests in the $40,000 fund, and also in the residue 
 of the estate subject to the charges therein; (2) That the provision di- 
 recting an accumulation of interest for twenty-five years is invalid, and 
 the interest on the $40,000 fund falls into the residue and belongs to 
 the trustee of such residue, for the purposes of the trust created there- 
 for ; and (3) that the interest on the residue, after discharging all trusts 
 declared, is to be paid over annually to the guardians of the grandsons 
 during their minority, as heirs of undevised estate. Kimball v. Crocker. 
 Liii. 263. 
 
 II. WHEN A DEVISE IS IN FEE, OR OTHERWISE. 
 
 3. Under a devise, in trust, to executors for the children of the tes- 
 tator, till the youngest shall arrive at the age of twenty-one years, the 
 executors in the mean time to manage the estate, and receive the in- 
 come, the executors took a fee-simple estate in trust, defeasible when 
 the youngest child arrives at the age of twenty-one years. Pearce v. 
 Savage, xlv. 90. 
 
 4. A devise to A. "of the income of fifteen hundred dollars to be paid 
 to her annually, to be put at interest by the executor, and to be equally 
 divided among the children after her decease," is a devise of the net in- 
 come after deducting taxes and other expenses. Arnold^ v. Mower, 
 XLix. 561. 
 
 5. In a bill in equity brought to give construction to a "will, which, 
 after providing for the payment of all debts and certain specific legar 
 cies, and appointing the executors as trustees, further provided that the 
 remainder of her whole estate, real, personal, and mixed, should remain 
 and be kept, for the full period of twenty years from the date of the will, 
 under the care and management of the trustees, for the benefit of cer- 
 tain grandchildren named, and for a suitable provision for them in case 
 of marriage, ..." before said period shall elapse," and the remainder 
 thereof to be judiciously invested until said grandchildren should be- 
 come entitled to receive their respective proportions; that, at the ex- 
 piration of said period, the "whole of the " testator's "estate and prop- 
 erty" should be equally divided among those of said grandchildren 
 then surviving, and the lawful issue of such as had deceased, Held, (1) 
 That the trusts were determined at the expiration of the period named; 
 and (2) That the devisees, without regard to sex, were to receive equal 
 proportions of the realty in fee-simple. Deering v. Tucher, lv. 284. 
 
 6. A provision in a will, restricting the rights of the devisees in the 
 control and disposition of estates therein devised to them in fee, is void 
 for repugnancy. Deering y. Tucker, -lv.1?>'^. 
 
 7. Where a will devised an estate in fee to the testator's grand- 
 daughters, to vest in them at the expiration of twenty years from the 
 date of the -will, and provided that said estate should "be so received" 
 (by the trustees having its care and management prior to the expiration 
 of such period) " for the u-se and benefit" of said granddaughters, "as 
 
DEVISE AND LEGACY. 
 
 151 
 
 not to be subject to the control and disposition of their or either of 
 their husbands," Hdd, that the last clause was not in limitation but 
 in furtherance of the rights of the devisees. Deering v. Tucker, lv. 
 284. 
 
 III. WHBTHBE A DEVISE OE LEGACY IS SPECIFIC, ABSOLUTE, 
 CONTINGENT, CONDITIONAL, OR OTHERWISE. 
 
 8. Under a devise of all the testator's property to O., "after his 
 mother sh.all cease to be my widow, providing he shall live on the place, 
 and carry it on till that time in a workmanlike manner," the deviseeloses 
 all his rights, if, during the time his mother remains the testator's widow, 
 he voluntarily quits the place, and neglects to carry it on. Marston v. 
 Marston, xltii. 495. 
 
 9. A devise, payable "at the termination of the widowhood" of the 
 wife of the testator, is an absolute devise, nothing but the time of pay- 
 ment being contingent, and does not lapse by the death of the devisee 
 before it becomes payable. Willis v. Roberts, xLvm. 257. Snow v. 
 Snow, XLix. 159. 
 
 10. A legacy to a married woman, before the recent statutes, did not 
 vest absolutely in her husband ; though, during her life, he could main- 
 tain an action for it in their joint names, but, after her death, her admin- 
 istrator alone could recover it by action. Willis v. Jioberts, xlviii. 257. 
 
 11. Where a testator bequeathed to his widow the use of his personal 
 property during her life and widowhood, to use what may be necessary 
 for her support and convenience, and, after her decease or marriage, one- 
 half of the remainder to descend to his son A., and the other half to his 
 son B., the latter to come into possession " when he shall arrive at the 
 age of twenty-one years, or at the death or marriage " of the widow ; the 
 legacy to B. is contingent; and he having died a minor, and before the 
 death or marriage of the widow, it lapses and is void. Snow v. Snow, 
 XLIX. 159. 
 
 12. It seems, that where the bequest is absolute in its terms, but to be 
 paid at a future time, it vests in the legatee, and is transmissible to his 
 representatives if he dies before the time fixed for its payment ; but when 
 the bequest is to take effect at a future time, or the time is annexed 
 to the legacy itself, and not to the payment of it,- it is contingent, and 
 lapses by the death of the legatee before the time. Snoio v. Snoio, 
 XLIX. 159. 
 
 13. Extrinsic evidence is admissible to aid in giving a construction to 
 devises or bequests in a will, and to show what property was intended to 
 be devised, and what person was intended to take : (1) When the de- 
 scription of the thing devised, or of the devisee, is clear upon the face 
 of the will, but upon the death of the testator it is found that there are 
 more than one estate or subject-matter of devise or more tlian person, ' 
 whose description follows out and fills the words used in the will; and, 
 (2) When the description of the thing intended to be devised, or of the 
 person who is intended to take, is true in part, but not in every par- 
 ticular. Howard v. Am. Peace So., xlix. 288. 
 
 14. Thus, such evidence is admissible to show that by a bequest to 
 "the Congregational Society of Auburn," the testator intended "the 
 First Congregational Society in Auburn;" and that by a bequest to "the 
 
152 DEVISE AND LEGACY. 
 
 Congregational Foreign Missionary Society," the testator intended "the 
 American Board of Commissioners for Foreign Missions." Howard v. 
 Am. Peace /So., xlix. 288. 
 
 15. When the name used in a will does not designate with precision any 
 person, and the circumstances concur to indicate that a particular person 
 was intended, and no similar, conclusive circumstances appear to dis- 
 tinguish any other person, the person thus shown to be intended will 
 take. Howard v. Am. Peace /So., xlix. 288. Preachers^ Aid /So. v. Bich, 
 XLv. 552. 
 
 16. A bequest to "the suffering poor of the town of Auburn " is not 
 void for uncertainty ; nor because no trustee, to execute the trust, is ex- 
 pressly named in the will. Howard v. Am. Peace So., xlix. 288. 
 
 17. A bequest to the congregational minister of the congregational 
 society of the town of Auburn, absolute and subject to no contingency, 
 there being none at the date of the will, will apply to the person who 
 first became such in the legal sense of the term. Howard v. Am. Peace 
 So., xlix. 288. 
 
 18. It will not be held to apply to a person who preaches to that 
 society temporarily, but only to the regularly settled pastor. Howard v. 
 Am. Peace So., xlix. 288. 
 
 IT. REMEDIES EOE AND AGAINST, AND GENBEALLY. 
 
 19. When a society claimed a legacy given by a will, as being the 
 legatee's intended, although in the will the name of the association is 
 not stated with precision, if all the circumstances indicate that this and 
 no other society was intended, their claim will be sustained. Preachers^ 
 Aid So. V. jRich, xlv. 552. Howard v. Am. Peace So., xlix. 288. 
 
 20. Heirs at law are not to be disinherited by conjecture, but only by 
 express words or necessary implication. Howard v. Am. Peace Soc, 
 XLIX. 288. 
 
 21. When income, payable annually, is devised to a person, over pay- 
 ments may be regarded as advances, and deducted from the income sub- 
 sequently accruing. Arnold v. Mower, xlix. 561. 
 
 22. When a bequest is made subject to a condition precedent, and no 
 time is fixed for the performance of the condition, and its performance is 
 wholly dependent on the will of the grantee, the law gives a reasonable 
 time to perform it. Drew v. WaJcefieM, liv. 291. 
 
 23. Effect of K. S. of 1857, c. 74, § 17, limiting the time of performing 
 a condition precedent in case of bequests, upon a will probated before 
 such statute went into operation. I)reio v. Wakejield, liv. 291. 
 
 24. When a bequest of personal property becomes ineffectual for any 
 cause, residuary legatees take it by virtue of the residuary clause. Prew 
 V. Wakefield, liv. 291. 
 
 25. The common-law distinction between a lapsed devise and a lapsed 
 legacy, has been abolished by K. S. of 1841, c. 92, § 31 (R. S. of 1857, c. 
 74, § 5), by which a devise will pass subsequently acquired real estate. 
 Drew V. Wakejield, liv. 291. 
 
 26. Contingent interests, not previously devised, will go by a general 
 residuary clause to the residuary devisee, unless the will contains special 
 
DISTEICT COUUT. DIVOKCB. 
 
 153 
 
 indications of a contrary intention on the part of the testator. Drew v. 
 Wakefield, lit. 291. 
 
 27. When a hequest is to relations, the next of kin are entitled to the 
 bequest, unless, from its nature, or the testator having authorized a pow- 
 er of selection, a different construction is allowed. Drew v. Wakefielcl, 
 LIT. 291. 
 
 28. It may well be presumed to be in accordance with the intentions 
 of a testator, that, in the distribution of his estate, his " deserving rela- 
 tions" should be preferred to "indigent persons" not of kin. Drew v. 
 
 Wakejield, nv. 291. 
 
 29. Where the testator had giTen a deed of land, with restrictions, to 
 a certain son, and, by will, had removed the restrictions, adding, _," said 
 farm is given to him in full for his share of my estate ; " and certain de- 
 vises had lapsed and gone, by a general residuary clause, to certain 
 trustees named, to be distributed among the testator's " deserving rela- 
 tions, in such manner as the trustees may think proper," such son may 
 become the object of his father's bounty within the discretion vested in 
 such trustees. Drew v. Wakefield, lit. 291. 
 
 See Assumpsit, 14. 
 
 DISTRICT COURT. 
 
 The rule that the record of a court of limited jurisdiction, should Tcr- 
 ify every fact required to give jurisdiction, is not applicable to the late 
 district court. Walker v. Gilman, xlt. 28. 
 
 DIVORCE. 
 
 1. The statute does not confer on this court authority to decree a dis- 
 solution of the bonds of matrimony between parties married in a foreign 
 country, if they have not cohabited in this State after marriage, and only 
 one of them has ever been a resident of the State. Goodwin v. Good- 
 win, XLT. 377. 
 
 2. Neither Public Laws of 1855, c. 181, or of 1856, c. 266, nor the R. S. 
 of 1857, c. 82, § 78 et seq^ remoTe the disability at common law, of 
 the husbapd or wife to give testimony in a libel for divorce, to which 
 they are parties. Dwdly v. Dwelly, xlti. 377. 
 
 3. The legal relation of husband and wife is not changed by the filing 
 of a libel for diTorce, or any steps preliminary to the judgment. DweUy 
 V. Dwelly, xlti. 377. 
 
 4. In a libel for diTorce, a motion to dismiss the exceptions, and ren- 
 der judgment on the Terdict, because the libellee has failed to comply 
 with an order of the court, passed at nisi prius, after filing the excep- 
 
154 DOG. 
 
 tions, directing him to pay the libellant to aid her in prosecuting her ex- 
 ceptions, will not be entertained by this court sitting in banc. Dwelly 
 V. Dwelly, xlvi. 377. 
 
 5. The proper course seems to be in such case, to proceed against the 
 libellee as for contempt, before the judge at nisi prius. Dwelly v. 
 Dwelly, XLVI. 377. 
 
 6. A divorce granted by the legislature is not invalid as impairing 
 the obligation of contracts. Adams v. Palmer, li. 480. 
 
 7. Such a divorce is valid in a case of which the court, under existing 
 laws, has no jurisdiction, especially if it is granted by consent of the 
 parties, and their assent may be inferred from their acts. Adams v. 
 Palmer, li. 480. 
 
 8. This court cannot divorce from the bonds of matrimony a husband 
 and wife who were married without the State, and who since their in- 
 termarriage have only been in it for a few days on a visit, and never as 
 residents. Oalef v. Oalef, liv. 365. 
 
 9. On a divorce a vinculo, for impotence, alimony cannot be decreed 
 under the statutes. Chase v. Chase, lv. 21. 
 
 10. A libellee named in a libel praying to have the ■ marriage between 
 the parties annulled on account of an alleged prior marriage, is not en- 
 titled to atrial by jury. Coffin v. Coffin, lv. 361. 
 
 11. A petition for a new trial in respect to the specific sum decreed in- 
 stead of alimony, on the ground of the discovery of new evidence, is fa- 
 tally defective, unless (1) The names of the witnesses to prove it and 
 what each is expected to testify, be stated under oath ; and (2) It alleges 
 that the "parties have not cohabited since the former trial, and that nei- 
 ther of them has contracted a new marriage. Merrill v. Shattuck, lv. 
 874. 
 
 DOG. 
 
 1. By R. S., c. 30, § 1, when any dog does any damage to a person or 
 his property, his owner or keeper shall forfeit to the injured person double 
 the amount of the damage done ; to be recovered by action of trespass. 
 Smith V. Montgomery, Ln. 178. 
 
 2. If, in an action under this section, the plaintiff allege, that, on a day 
 and at a place specified, "the defendant was the keeper of a dog," and had 
 been, for some time prior thereto ; and that said plaintiff, at said time 
 and place, owned and had in possession a large number of sheep ; and 
 said " defendant's dog," on, &c., at, &c., without the fault or consent of 
 the plaintiff, " killed and destroyed two of said plaintiff's sheep," &c., 
 Held, that the plaintiff need not prove that the defendant owned the 
 dog ; if he satisfied the jury that the defendant was the keeper of the dog, 
 it would be sufficient. Smith v. Montgomery, lii. 178. 
 
DOMICIL. 
 
 DOMICIL. 
 
 155 
 
 1. If a person has a home established in a town in this State, and goes 
 there for a specific purpose, intending to return when that purpose shall 
 be accomplished, without making any other place his home for an indefi- 
 nite period of time, his residence is not changed. Church v. Rowell, 
 XLix. 367. 
 
 2. Aliter, if he takes up his abode in another place, without any pres- 
 ent intention to remove therefrom. Church v. Howell, xlix. 367. 
 
 8. If he acquires a new residence, and leaves that to go to his former 
 home, with the deliberate intention of not returning, and of abandoning 
 his new residence, then goes to the town of his first residence, as to his 
 former estabhshed home, and is there on the first day of May, having no 
 intention to go to reside in any other particular place as a home, he is 
 subject to taxation in that town. Church v. Mowdl, xlix. 367. 
 
 4. But if he leaves in such case with the intention of returning, and not 
 to abandon his new home, and that intention is retained by him on the 
 first day of May, he is not a subject of taxation in that town. Church 
 V. Rowell, XLIX. 367. 
 
 5. A domicil once acquired continues till a new one is gained. While 
 in transit, the old domicil remains. Littlejield v. Brooks, l. 475. Qil- 
 man v. G-ilman, lii. 165. Mbnson v. Fairfield, lv. 117. 
 
 6. An inhabitant of A. left that place on March 30 with the intention 
 of residing in C. ; on April 1 he arrived at B., and the next day reached 
 C where he established his residence. Held, that for the purposes of 
 taxation, he was to be deemed an inhabitant of A. on April 1st, and was 
 liable to taxation there. Littlefield v. jBroohs, l. 475. 
 
 7. If the domicil of a testator, at the time of his death, be in any other 
 of the United States, his will, when its validity is not questioned, may 
 be allowed and recorded in this State as a foreign will; and the movable 
 property in this State, belonging to the testator's estate, will be disposed 
 of under the will, according to the laws of the State in which the dom- 
 icil was established. Gilman v. Gilman, lii. 165. 
 
 8. If the domicil be in this State, the probate court here will have 
 original jurisdiction, and our laws must govern the construction of the 
 will, and the disposal of the property. Gilman v. Gilman, lii. 165. 
 
 9. In regard to questions of citizenship, and the disposition of proper- 
 ty after death, every person must have a domicil. Gilman v. Gilman, 
 LII. 165. 
 
 10. It is an established principle of jurisprudence, in regard to the suc- 
 cession of property, that a domicil once acquired continues until a new 
 one is established. Gilman v. Gilman, lii. 165. 
 
 11. In regard to the succession of property, a person can have but one 
 domicil. Gilman v. Gilman, lii. 165. 
 
 12. If any rule can be applied to a person having two dwelling- 
 houses,— one in the city and the other in the country, — or in two differ- 
 ent cities, and residing in each a part of each year, thereby leaving in 
 doubt, so far as his domestic establishments alone are concerned, which 
 
156 DONATIO CAUSA MOKTIS, ET INTEK VIVOS. 
 
 of them is»intended as the real domicil, it is, that the domicil of origin, 
 or the previous domicil, shall prevail. Oilman v. Oilman, lii. 165. 
 
 13. The intention, which, combined with residence, establishes the 
 domicil, must relate to the future, and not the past. Oilman v. Oilman, 
 LH. 165. 
 
 14. An intention to dispose of his property according to the laws of 
 any place does not tend to fix the testator's domicil there. Oilman v. 
 Oilman, lii. 165. 
 
 15. Nor, on the other hand, does the fact that he described himself, 
 in his will, and in his codicil, as " of the city and State of New York," 
 make any material difference. Oilman v. Oilman, lii. 165. 
 
 16. By R. S. 1857, c. 143, § 20, no insane person shall suffer any of the 
 disabilities incident to pauperism, nor be hereafter deemed a pauper by 
 reason of having received support in the insane hospital from the State. 
 Pittsfield V. Detroit, liii. 442. 
 
 17. An insane person, sent to the insane hospital as a patient by the 
 municipal officers of the town in which he has established his residence, 
 does not thereby lose it, but it continues during his residence in the hos- 
 pital. Pittsfield V. Detroit, liii. 442. 
 
 See Paupbes, 85, 86. 
 
 DONATIO CAUSA MORTIS, ET INTER VIVOS. 
 
 1. Gifts causa mortis, though once, looked upon with disfavor, and still 
 carefully scrutinized by the courts, when they are found to have been 
 made in good faith, should be upheld. Dresser v. Dresser, xlvi. 48. 
 
 2. Gifts inter vivos, and gifts causa mortis, differ in nothing, except 
 that the latter are made m expectation of death, become effectual only 
 upon the death of the donor, and may be revoked. Dresser v. Dresser, 
 XLVL 48. 
 
 3. A gift causa mortis, like a gift inter vivos may be made in trust, for 
 the benefit of third persons. Dresser v. Dresser, xlvi. 48. 
 
 4. But where the donor, in anticipation of death, gave certain personal 
 property to the defendants, to be managed by them as their own, and, 
 with the proceeds of it, to be paid to his children at a specified time, 
 JTeld, that it was a gift inter vivos ; and the donees were permitted to 
 retain the property upon giving bond to execute the trust. Dresser v. 
 Dresser, xlvi; 48. 
 
 5. Actual or constructive delivery is essential to constitute a gift 
 whether inter vivos or causa mortis. Carleton v. Lovejoy, liv. 445. 
 
 6. To establish a gift causa mortis, the common law requires clear and 
 unmistakable proof, not only of an intention to give, but of an actual gift 
 perfected by as complete a delivery as the nature of the property will ad- 
 mit. Hatch V. Atkinson, lvi. 324. 
 
 7. The delivery of the key of a trunk containing money and govern- 
 ment bonds, is not a valid delivery of the money and bon^s. Satph v. 
 Atkinson, lvi. 325. 
 
DOWER. 
 
 157 
 
 8. The donee must take and retain possession till the donor's death. 
 Hatch V. Atkinson, lvi. 324. 
 
 DOWER. 
 
 I. OP "WHAT A "WIDOW IS DOWABLE. 
 
 n. BAK OF DOWEE. 
 
 III. HOW DOWEK IS EECOVEKABLB. 
 
 IV. GENERALLY. 
 
 I. OF WHAT A WIDOW IS DOW ABLE. 
 
 1. A widow is entitled to dower in an equity of redemption of a mort- 
 gage. Richardson v. Skolfield, xlt. 386. Moore v. Bollins, xlv. 4&3. 
 
 Wing V. Ayer, liii. 138. 
 
 2. A widow is dowable of a lime-quarry which was owned by her hus- 
 band, and which had been opened and wrought during her coverture. 
 Moore y. Rollins, xlt. 493. 
 
 3. Where one has received a deed of an estate and given back a mort- 
 gage of the same, to secure the payment of the purchase-money, if the 
 deeds ai-e of the same date, have the same witnesses, are acknowledged 
 before the same magistrate, and the notes secured are of the same date 
 with the mortgage, in the absence of all proof to the contrary, the deeds 
 will be regarded as one and the same transaction. And as against the 
 mortgagee or his assignee, the widow of the mortgager will be dowable 
 only of an equity of redemption. . Moore v. Rollins, xlv. 493. 
 
 4. And the circumstance that the mortgager included in his deed 
 other land than that conveyed to him by the mortgagee, does not change 
 or affect the rights of the parties in her suit for dower. Moore v. Rol- 
 lins, XLV. 493. 
 
 5. The wife has no vested right, of any kind, to dower in the estate 
 of her husband, before his decease ; and, until then, her right may be 
 modified, changed, or abolished by legislative enactment. JBarhour v. 
 Barbour, xlti. 9. 
 
 6. R. S. of 1841, c. 95, § 15, restricting a widow's right of dower in 
 lands mortgaged by her husband before marriage, applies to all cases 
 where the death of the husband has occurred since that statute took ef- 
 fect, though the mortgage may have been redeemed before that time. 
 Ba/rhour v. Barbour, xlti. 9. 
 
 7. A mortgagee, who had taken possession for the purpose of foreclos- 
 ure, but, before the foreclosure was perfected, quitclaimed his right, had 
 not such a seisin as will entitle his widow to dower in the mortgaged 
 premises, notwithstanding the latter became absolute in his grantee, by 
 the failure of the mortgager to redeem. Foster v. Bwinel, xlix, 44. 
 
 8. If an execution creditor quitclaim to a third person lands which 
 have been levied on before the time of the redemption from the levy has 
 expired, the widow of the creditor will not be entitled to dower therein. 
 Foster v. Gordon, xlix. 54. 
 
158 DOWER. 
 
 9. In an action for dower in woodland, if the demandant fails to show 
 that the woodland is in some way connected with improved land, in 
 which she is dowable, so as to give her the right to take the wood there- 
 from, and that it is necessary that she should have and exercise that 
 right, the action will not be sustained. Ford v. ErsMne, l. 227. 
 
 10. Where land conveyed to the husband of the complainant during 
 their coverture was mortgaged back to secure a part of the purchase- 
 money ; and the husband thereafterwards mortgaged a portion of the 
 land to one of the respondents, who, after purchasing, by assignment, the 
 former mortgage and the debt thereby secured, together with the right 
 which the complainant's husband had of redeeming the land at the time 
 of his decease, conveyed a portion of it by deed of warranty to the other 
 respondent; and the complainant, not having relinquished her right of 
 dower, brought a bill in equity, praying for her dower to be set out 
 in the equity, Held, (1) Thatthe complainant had a right of dower 
 subject to the former mortgage; (2) That she was not dowable 
 against the first mortgager or his assigns ; (3) That to the extent of 
 her interest, she stands in the relation of mortgager thereto ; (4) That she 
 ma y redeetn the whole mortgage, and hold the whole as security for what 
 she pays more than her proportion ; (5) That she may redeem her inter- 
 est with the consent of the assignee of said mortgage ; (6) That if she 
 would redeem, she must bring her bill as provided by the statute; (7) 
 That this bill cannot be sustained, because it neither alleges a tender, nor 
 a demand for an account under R. S. of 1867, c. 90, § 13, nor under c. 103, 
 § 14, because it does not allege that the mortgage has been discharged. 
 
 Wing V. Ayer, liii. 138. 
 
 11. A widow is entitled to dower in flats owned by her husband, al- 
 though they are covered by tide- waters and remain unimproved down to 
 the time of his decease. Brackett v. Persons Unknown, liii. 238. 
 
 n. BAK OP DOWER. 
 
 < 
 
 12. A widow is barred of dower in land conveyed by her husband be- 
 fore marriage, though the deed has not been registered. Bichardson v. 
 Skolfield, XLV. 386. 
 
 13. A deed of land made by a husband to his wife, during the covert- 
 ure, the consideration named being " love and esteem," does not bar her 
 of dower in his remaining lands, unless his intention to do so is expressed 
 in the deed. Buhier v. Roberts, xlix. 460. 
 
 14. Facts outside of the deed, proved by parol evidence, are sufficient 
 to bar the widow of her dower, unless there is proof of a direct and ex- 
 plicit declaration, or its equivalent, by the husband, at the time of the 
 execution and delivery of the deed, that, if received and retained, it 
 should be in lieu of dower. Bubier v. Roberts, xlix. 460. 
 
 15. But, it seems, if it is clearly shown that the husband in his life- 
 time made a jointure or pecuniary provision for his wife in lieu of dower, 
 and that she had full knowledge of it, although she did not accept it at 
 the time in satisfaction of her right of dower, she will be bound thereby, 
 unless, within six months after her husband's decease, she elects not to 
 do so, and files a certificate of her election in writing in the probate office. 
 Bubier v. Roberts, xlix. 460. 
 
DOWER. 
 
 159 
 
 16. A release of dower to a stranger to the title does not extinguish 
 the right of dower ; but if the releasee afterwards acquires the title, the 
 release operates to bar the dower as to him, by way of estoppel. Jlarri- 
 man v. Gray, xiix. 537. 
 
 17. Although the wife has signed a deed of the premises with her 
 husband, she is not thereby estopped to claim dower, when the deed 
 contains no words indicating her intention to release her right of dower. 
 ZiOthrop V. Foster, li. 367. 
 
 18. An agreement to release such right accompanied by the deed can- 
 not be proved by parol. Lothrop v. Foster, li. 367. 
 
 ni. HOW DOWEE IS EECOVEEABLE. 
 
 19. By R. S., 1841, c. 95, § 3 (R. S. c. 103, § 3), the judge of probate 
 may assign the widow her dower in all the lands of which her husband 
 died seized, unless her right thereto is disputed by heirs or devisees, or 
 by persions claiming under them. Bent v. Weeks, xliv. 45. Barton 
 V. Hinds, xlti. 121. 
 
 20. And where no question is made concerning the regularity of the 
 proceeding and no appeal taken, the decree is final. Bent v. Weeks, 
 XLIV. 45. 
 
 21. As no other persons are bound by the decree, so they have no 
 right to appeal from it. Barton v. Hinds, xlvi. 121. 
 
 22. Scire facias lies to obtain a writ of seisin of dower, where judg- 
 ment has been rendered, and the time for issuing such writ has expired. 
 
 Walker v. Oilman, xlv. 28. 
 
 23. Where one institutes her suit for dower and marries before entry 
 of action, and the defendant does not object to the non-joinder of the 
 husband, the objection cannot be made on scire facias founded on the 
 judgment. Walker v. Grilman, xlt. 28. 
 
 24. By Public Laws of 1848, c. 73, the wife may maintain scire facias 
 in her own name, or jointly with her husband. Walker v. Gilman, xlv. 
 28. 
 
 25. An action of dower cannot be maintained before demand has been 
 made to assign dower. Ford v. Erskine, xlv. 484. 
 
 26. If the heir or person claiming under the husband redeem the 
 mortgige, the widow shall repay her proportion of the money paid for 
 the redemption before she can recover dower in the equity. Pratt v. 
 Skolfield, xlv. 386. 
 
 27. The demand should contain such a description of the estate as 
 will give notice of what land dower is demanded ; and this may be in 
 terms or by reference to a deed under which the tenant claims. Ford 
 V. Erskine, xlv. 484. Merrill v. Shattuck, lv. 370. 
 
 28. But reference to a deed executed forty years before, to a third 
 person, and not recorded, is no notice to the tenant of what was con- 
 veyed ; and such description is insufficient. Ford v. Erskine, xlv. 484. 
 
 29. Thus, a demand " of all lands of which W. F., my late husband, 
 was seized, at any time during my coverture with him, and of which you 
 are now seized of the freehold, and particularly of the land conveyed to 
 
160 DOWER. 
 
 J. T., by my said husband, by deed dated Oct. 19, 1819," was considered 
 too Tague and indefinite. Ford v. JErskine, xlv. 484. 
 
 30. . A demandant in dower may bring a bill in equity and therein 
 offer to repay such part of the money paid by the heir (to redeem a 
 mortgage made by the husband before intermarriage), as would be equal 
 to the proportion which her interest in the mortgaged premises bears to 
 the whole value thereof, and then she will be entitled to a conditional 
 decree to that effect. Sarbour v. Barbour, xlvi. 9. 
 
 31. Where premises were assigned by metes and bounds to the widow, 
 by commissioners appointed by the judge of probate, who made no re- 
 turn of their doings, the assignment is ineffectual; but the widow, hav- 
 ing entered into possession of the premises thus assigned, and held the 
 same without objection on the part of the heirs (some of whom were 
 minors at the time), for more than twenty years, the inference is legiti- 
 mate, that the dower was assigned with their assent ; and, no complaint 
 being made that the assignment was inequitable, there is no rule of law 
 requiring it to be disturbed. Austin v. Austin, l. 74. 
 
 32. The demand to have dower assigned may be made by parol and 
 by one authorized by parol. Lothrop v. Foster, li. 367. 
 
 33. Where land conveyed to the husband of the complainant during 
 their coverture was mortgaged back to secure a portion of the purchase- 
 money ; and the husband thereafterwards mortgaged a portion of the 
 land to one of the respondents, who, after purchasing, by assignment, 
 the former mortgage and the debt thereby secured, together with the 
 right which the complainant's husband had of redeeming the land at the 
 time of his decease, conveyed a portion of it by deed of warranty to the 
 other respondent; and the complainant, not having relnquished her 
 right of dower, brought a bill in equity praying for her dower to be set 
 out in the equity. Held, (1) That she may redeem the whole mortgage 
 and hold the whole as security for what she pays more than her propor- 
 tion ; (2) That she may redeem her interest with the consent of the as- 
 signee ; (3) That if she would redeem, she must bring her bill as provided 
 by statute ; and (4) That this bill cannot be sustained, because it neither 
 alleges a tender, nor a demand for an account, under R. S. of 1857, c. 90, 
 § 13, nor under c. 103, § 14, because it does not allege that said mortgage 
 has been discharged. Wing v. Ayer, liii. 138. 
 
 34. A bill in equity brought by a widow to redeem a mortgage given 
 by her husband, in order that she may have dower in the equity of 
 redemption, must distinctly set forth a seisin of the husband during cov- 
 erture in such an estate as would entitle her to dower. Wing v. Ayer, 
 xni. 465. 
 
 35. A bill which, after setting out the deed to, and the mortgage from 
 her husband, alleged that " during her coverture with the said iP.," her 
 husband, "the said P. was seized and possessed of the equity of redemp- 
 tion of the " land described ; and that " by reason of the aforesaid con- 
 veyances to and from her said husband, she took and had an inchoate 
 right of dower in the equity of redemption of said land ; " and " upon 
 the decease of her said husband she became dowable therein," &o., is 
 not sufficient, on demurrer. Wing v. Ayer, Lin. 465. 
 
 36. To enable a divorced wife to recover her dower in the real estate 
 of him from whom she has been divorced, she must prove a demand the. 
 
DOWER. 
 
 161 
 
 same as if she were prosecuting lier suit as a widow. Merrill v. Shat- 
 tuck, Lv. 370. 
 
 37. To constitute a legal demand for dower, there must be a verbal or 
 written request to the other party to do the definite act of setting out 
 the demandant's dower in certain lands sufficiently described. Merrill v. 
 ShattiocJc, LV. 370. 
 
 38. Negotiations or discussions upon the subject of her dower, between 
 the parties ; or propositions for a compromise, or for a relinquishment of 
 her right for a sura of money, made and considered ; or the proposal of 
 certain persons named as arbitrators to set out the dower in lieu of legal 
 proceedings, are not sufiicient to constitute a demand. Merrill v. Shat- 
 tuck, LV. 370. 
 
 See Evidence, 10. 
 
 IV. GENERALLY. 
 
 39. A tenant in dower, after the termination of the estate, is not enti- 
 tled to betterments under c. 6, of the Public Laws of 1843, where he is 
 not the assignee or grantee by deed, of or from the tenant of the life- 
 estate. Bent V. Weeks, xliv. 45. 
 
 40. A. owned lot 4, and A. and B. own lot 3, in common. A. and B. 
 divided lot 3, assigning to A. the easterly half, adjoining lot 4, which 
 they accordingly occupied, and fenced. Fifteen years afterward, A.'s 
 wife obtained a divorce, and, by written agreement of all concerned, a 
 committee was appointed to assign dower to her in lot 4, and an undi- 
 vided half of lot 3. They assigned her fifty acres " of the south-westerly 
 side of said lots," and she recorded the assignment, and thereupon erected 
 a house on the easterly half of lot 3, and lived there forty years. Held, 
 that there is no ambiguity in the terms of the assignment ; and parol 
 evidence is inadmissible to show that all the parties understood the part 
 assigned to be the easterly half of lot 3. Young v. Grvegory, xlvi. 475, 
 
 41. The conveyance of two-thirds of a parcel of real estate in common 
 and undivided, by one who owns the whole in fee subject to the right of 
 dower of a widow, has no ^ffect upon the right of dower. Blanchard v. 
 JBlanchard, xlviii. 174. 
 
 42. In such case, partition between the parties to the deed would not 
 save the grantee from the liability of having the widow's dower assigned 
 in his portion of the estate ; nor can the grantee, by petition for parti- 
 tion, have his portion set out in severalty, before the dower has been 
 assigned. Slanchard, v. Blanchard, xlviii. 174. 
 
 43. Although the tenant claims title under the deed of the mortgagee, 
 he will not be estopped, in an action by the widow of the mortgagee for 
 dower, from showing that her husband's seisin was only that of a mort- 
 gagee. Foster v. Dwind, xlix. 44. 
 
 44. A release of dower to a person who has conveyed the land by a 
 quitclaim deed containing no covenants, and closing in these words : 
 "So that neither I the said" grantor, "nor my heirs, or any other per- 
 son or persons claiming from or under me or them, or in the name, right, 
 or stead of me or them, shall or will, by any way or means, have, claim, 
 or demand any right or title to the aforesaid premises, or their appurte- 
 
 11 
 
162 DEAIN. 
 
 nances, or any part or parcel thereof forever," creates no estoppel in favor 
 of any other person than the releasee. Harriman v. Gray, xlix. 537. 
 
 45. Prior to c 215 of the PuWic Laws of 1863, a release of dower, by 
 a married woman under twenty-one years of age, was voidable. Ad- 
 ams V. Palmer, li. 480. 
 
 46. This chapter cannot render valid a prior release of dower which 
 was voidable when it was executed, and which, before the enactment 
 of the statute, had been avoided. Adams v. Fa,lmer, li. 480. 
 
 See Covenant, 2. 
 
 Estoppel, 8, 9, 10, 11, 13. 
 
 DRAIN. 
 
 1. The owner of land has a legal right to fill it up so as to interrupt 
 the flow of surface-water over it, whether flowing from a highway, or 
 adjoining land. Bangor v. Lansil, li. 521. 
 
 2. Nor does the fact, that the land filled up was a swale, make any 
 diflference in the owner's rights, provided no natural watercourse *is ob- 
 structed. Bangor v. JLansil, li. 521. 
 
 3. If, in filling up his lot, the owner construct a drain for the flow of 
 surface-water from the highway, which had been accustomed to flow 
 across his lot, and afterwards allow the drain to become obstructed, and 
 it is lepaired by the town, the latter can maintain no action to recover 
 the expense of such repairs. Bangor v. JLansil, li. 521. 
 
 4. Such a drain is not a " private drain " within the meaning of R. S., 
 c. 16, § 12. Bangor v. Lansil, li. 521. 
 
 5. No action can be maintained against a town for neglecting to re- 
 pair a drain across its highways, ^er quodihe, water accustomed to flow 
 through it was forced back upon the adjoining land, unless it appears 
 that an obligation to construct the drain was i*nposed on the town by 
 the statute or common law. Mates v. China, lvi. 407. 
 
 6. The common law requires a town to build a drain only where its 
 highway would otherwise obstruct the flow of water in its natural chan- 
 nel, or cause it to collect and stand upon adjoining land to the injury of 
 the owner. jEstes v. China, lvi. 407. 
 
 7. To sustain an action founded on R. S. of 1857, c. 16, §§ 4 and 9, for 
 damages caused by tlie want of repair of a drain made since the R. S. 
 went into efiect, it must be afiirmatively alleged and proved, that the 
 municipal officers constructed the drain ; that the plaintiff" or his prede- 
 cessor in title, made written application to the municipal officers to en- 
 ter and connect with it; and that the municipal officers gave the appli- 
 cant a written permit to do so. And unless the permit be in writing, it 
 will not run with the land. Estes v. China, lvi. 407. 
 
DEINKING-HOUSE AND TIPPLING-SHOP. EASEMENT. 163 
 
 DRINKING-HOUSE AND TIPPLING-SHOP. 
 
 1. An indictment alleging that the respondent on a day named and 
 on divers other days and times, between that day and the day of the 
 finding of the indictment, at a place specified, " unlawfully did keep a 
 diin king-house and tippling-shop," &c., is sufficient, under § 15, of c. 
 255 of the Public Laws of 1858. State v. Casey, xlt. 435. State v. 
 Collins, XLYiii. 217. 
 
 2. So, also, under § 10, of c. 33 of the Public Laws of 1858. State v. 
 Collins, XLviii. 217. 
 
 3. The fact that a person has been convicted of keeping a drinking- 
 house and tippling-shop is no bar to an indictment for presuming to be 
 a common seller, although both indictments cover the same period of 
 time, and are supported by the same acts of illegal sale. State v. In- 
 ness, Liii. 536. 
 
 4. The law does not require a plurality of sales to constitute the of- 
 fense of keeping a drinking-house and tippling-shop. State v. Inness, 
 Lin. 536. 
 
 DURESS. 
 
 See Bond, 10. 
 
 EASEMENT. 
 
 1. The owner of a parcel of land conveyed by deed a part thereof, 
 reserving a strip at one end, three rods wide, for a road, if the town (in 
 which the land lay) should lay out and accept a road over it, otherwise, 
 reserving the same for a private way. Held, that the fee of the whole 
 part described passed to the grantee, subject to the easement, for a 
 town way, if laid out ; otherwise, for a private way. Tuttle t. Walker, 
 XL VI. 280. 
 
 2. And if such grantee obstruct the right of way, he will be liable in 
 an action of the case for the actual damages caused the grantor or one 
 who has acquired his rights. If no actual damage be proved, the plain- 
 tifi'will be entitled to nominal damages. Tuttle v . Walker, xlti. 280. 
 
 3. After all the requirements of the statute have been complied with 
 relative to a highway legally laid out, the public acquire an easement, 
 as against the owners of the land, to every portion of it. Dickey v. 
 Maine Tel. Co., xlvi. 483. 
 
 4. The inhabitants of a town may acquire by custom an easement, 
 but not an interest in land, or right to take a profit from it. Hill v. 
 Lord, XLVIII. 83. 
 
164 ELECTION. EMANCIPATION. 
 
 5. The right to take sea-weed from the land or beach of another, is 
 not an easement, but a right to take a profit in the soil, and cannot be 
 acquired by custom. Sill v. Lord, xlviii. 83. 
 
 6. One having an easement in another's land is bound to use it in 
 such a manner as not unnecessarily to injure the other's rights, or he 
 ■will be liable as a trespasser. Kaler v. Seaman, xlix. 207. 
 
 7. A deed of a right of way from the highway to the grantee's mill, 
 gives him no right to pile lumber on the sides of the way. Kaler t. 
 JBeaman, xlix. 207. 
 
 8. If a part of the premises demanded be a passage-way, to the line 
 of which the tenant is bounded, the fee of land being in the demandant, 
 he will be entitled to recover, notwithstanding the tenant may have an 
 easement in the passage-way. £lake v. Same, l. 311. 
 
 9. When the title to two adjoining closes becomes united in one per- 
 son, all subordinate rights and easements are extinguished. Warren v. 
 Blake, liv. 276. 
 
 ELECTION. 
 
 The presiding oiEcers at an election are the sole judges of what con- 
 stitutes a " distinguishing mark " upon a ballot, under the provisions of 
 R. S., c. 4, § 22 ; and after these officers have received and counted any 
 votes, the governor and council have no power to reject them. Opinion 
 of Judges, liv. 602. 
 
 EMANCIPATIOlSr. 
 
 Under the statute of March 21, 1821, an emancipated mioor, by five 
 consecutive years' residence in a town, could not there fix his s'ettle- 
 ment ; for, by that statute, no person under the age of twenty-one years 
 could thus acquire a settlement. Veazie v. Machias, xlix. 105. 
 See Pauper, 1, 8, 9, 10, 11, 12, 14, 95, 96, 97. 
 
 ENTRY OF ACTION. 
 See Abatement, 16, 17. 
 
 EQUITY OF REDEMPTION. 
 
 See Execution. 
 
EQUITY. 165 
 
 EQUITY. 
 
 I. JTJEISDICTION-. 
 II. PRACTICE. 
 
 III. PLEADINGS. 
 
 IV. EVIDENCE. 
 
 V. GENERAL PRINCIPLES. 
 
 I. JURISDICTION. 
 
 1. A court of equity has a broader jurisdiction than a court at law ; 
 and while in one, a written instrument duly executed, contains the true 
 agreement of the parties, and furnishes better evidence of their intention 
 than any that can be supplied by parol, the other will open a written con- 
 tract to let in an equity arising from facts perfectly distinct from the 
 instrument itself. Tucker v. Madden^ xliv. 206. 
 
 2. This court has equity jurisdiction in cases of accident and mis- 
 take, where the parties have not a plain and adequate remedy at law ; 
 and this jurisdiction is to be exercised in the same manner as by a court 
 having full and general equity powers. Such jurisdiction will be ex- 
 ercised in this State, where the evidence of the mistake is plenary, and 
 leaves no doubt in the mind of its existence. Tucker v. Madden, xliv. 
 206. Jordan v. Stevens, li. 78. 
 
 3. Jurisdiction is given to this court by the R. S. of 1841, c. 96, § 10 
 (R. S., c. 77, § 8), of all cases of trusts, whether arising by implication 
 of law, or created by deed or will. Tappan v. Deblois, xlv. 122. 
 
 4. Where a claim, on which an action had been brought, was settled, 
 before the term of the court was begun, and the plaintiff wrongfully 
 entered the action, took judgment and execution, and long afterwards 
 assigned it, the court, exercising its equity powers, will grant a writ of 
 injunction, to relieve the execution debtor against its enforcement. 
 Devoll V. Scales, xlix. 320. 
 
 5. The statute concerning nuisances, authorizing the court, in any 
 county, to issue an injunction, and to make such orders and decrees for 
 enforcing or dissolving it, as justice may require, does not confer any ad- 
 ditional powers on the court in cases where the bill does not charge the 
 acts complained of as a nuisance. And. <& Ken. R. R. Co. v. And. R. 
 R. Co., XLIX. 392. 
 
 6. Where an agent without the proper authority assumed to convey 
 the real estate of his principal to the defendants' grantor, and subse- 
 quently the plaintiff, with a knowledge of the facts, received from the 
 principal a deed of quitclaim of the premises. Held, that the title at com- 
 mon law was in the plaintiff, and a court of equity alone could afford 
 protection to the former grantee. Heath v. Nutter, l. 378. 
 
 7. Jurisdiction in equity, in cases of "mistake," is expressly conferred 
 by statute. Nor is it, in terras, limited to mistakes of fact. The legis- 
 lature may be presumed to have used the word as generally understood 
 in equity proceedings. Jordan v. Stevens, li. 78. 
 
 8. The words in former statutes limiting equity jurisdiction to cases 
 " where the parties have not a plain and adequate remedy at law," being 
 
166 EQUITY. 
 
 omitted in the revised statutes, it seems, that the equity powers of the 
 court are to be determined under the general rules of equity in all cases 
 in which the subject-matter is, by statute, cognizable in equity. McLar- 
 ren v. JSrewer, u.. 402. 
 
 9. R. S., c. 71, § 17, authorizing a judge of probate to empower an 
 administrator to execute a deed to carry into effect a legal contract made 
 by the deceased, was not intended to oust this court of its equitable ju- 
 risdiction, or to restrict its exercise. And if after forfeiture of the bond 
 for conveyance, payments had been made by the obligee,^ his rights 
 arising therefrom can only be enforced by proceedings in equity. Bates 
 V. Sargent, li. 423. 
 
 10. R. S., c. 77, § 8, confers jurisdiction in equity on this court, "in 
 cases of partnership, and between part-owners of vessels and other real 
 and personal property, for adjustment of their interests in the property 
 and accounts respecting it ;" and a bill will be maintained, although it 
 allege and the evidence show that a portion of the funds were received 
 by the defendant as part-owner and a portion in the capacity of agent 
 and master. Mustard v. Rohinson, Lii. 54. 
 
 11. This court, sitting as a court of equity, may, upon a proper bill duly 
 served, enjoin the respondent from further prosecuting in this court as a 
 court of law, a writ of entry, in favor of the respondent against the com- 
 plainant, notwithstanding the respondent may not have resided, or per- 
 sonally been within this State, since the commencement of the bill. 
 Marco v. Low, lv. 549. 
 
 12. When such a bill is inserted in a writ of attachment, and the re- 
 spondent's property situated within this State has been attached thereon, 
 service of the bill made upon the person who appears and prosecutes the 
 respondent's real action is sufficient. 3farco v. Low, lv. 549. 
 
 13. The general equity jurisdiction of this court does not extend to 
 the enjoining of a city treasurer from negotiating loans, and otherwise 
 carrying into effect the votes of his city government. Johnson v. Thorn- 
 dike, Lvi. 32. 
 
 14. And § 1, c. 239, of the Public Laws of 1864, contemplates only 
 two classes of cases in which the court can thus intervene ; (1) When 
 any city votes to pledge its credit, raise or pay money " for any purpose " 
 not authorized by law ; and (2) When " any agent or officer thereof" at- 
 tempts to pay out the money of " his city without authority." Johnson 
 V. Thorndihe, lvi. 32. 
 
 15. If the money is voted in good faith to pay any liability or contract 
 within the contemplation of law, this process will not lie, but the city 
 will be left to its legal remedies. Johnson v. Thorndike, lvi. 32. 
 
 16. A bill in equity alleging that three of the four defendants are not 
 inhabitants of this State, will, on demurrer, be dismissed as to them, 
 when no service has been made on them. Stephenson v. Davis, lvi. 73. 
 
 17. And where the bill was inserted in a writ, and the officer returned 
 a general attachment of all the defendants' right in real estate in the 
 county, and also attached a certain schooner as their property ; and, sub- 
 sequently, a copy of the bill, with the order of court thereon, was served 
 upon the fourth defendant who had removed from the State since the 
 filing of the bill; whereupon he pleaded to the jurisdiction, alleging his 
 removal, and that, at the time of the alleged attachments, he did not own 
 
EQUITY. 
 
 167 
 
 and has not since owned any right in real estate in the county, or any 
 interest in the schooner, Held, that the plea be adjudged good, and the 
 bill dismissed as to him. Stephenson v. Davis, lvi. 73. 
 
 IT. PEACTICE. 
 
 18. The answer of a respondent to a bill in equity will be taken as 
 true, unless from a consideration of the facts and circumstances admit- 
 ted or proved, the contrary fully appear. Alfro v. MbJVavrin, xliv. 
 90. 
 
 19. A bond given to obtain an injunction ex parte, under the provis- 
 ions of R. S. of 1841, c. 96, § 11, conditioned to pay "all such damages 
 and costs (if any) as shall be sustained and awarded" against the ap- 
 plicant, in consequence of the injunction, is valid and may be enforced. 
 Propers. Union Wharf v. Ilussey, XLVin. 307. 
 
 20. The words in such bond " and awarded against said " applicant, 
 being in addition to the requirements of the statute, may be rejected as 
 surplusage. Propers. Union Wharf v. Mussey, xltiii. 307. 
 
 21. After a final decree in favor of a party, to entitle him to costs, 
 there must be an express order or decree of the court therefor. Stone 
 V. Locke, xLvin. 425. 
 
 22. Where a bill was, on motion of the defendant, dismissed from the 
 docket for want of prosecution, the action cannot properly be brought 
 forward, at a subsequent term, on motion to obtain an order for costs. 
 Stone V. Locke, xlviii. 425. 
 
 23. It seems that the proper proceeding for him, after dismissal, for 
 want of prosecution, is to apply for an order to discharge the decree 
 dismissing the bill. Stone v. Locke, xlviii. 425. 
 
 24. But his application will not be favored, where the bill was regu- 
 larly dismissed, if it be for the sole purpose of agitating the question of 
 costs. Stone v. Locke, xlviii. 425. 
 
 25. Where the rights of a respondent in equity, who resides out of 
 the State and has notice of the suit, but does not appear and answer, 
 will not be prejudiced by the decree, the bill may be taken^T-o confesso 
 as to him. Adams v. Stevens, xlix. 362. 
 
 26. Where his co-respondents are not prejudiced by his failure to 
 appear, it will not defeat the suit. Adams v. Stevens, xlix. 362. 
 
 27. Where one of the respondents in an equity suit dies while it is 
 pending, and his heirs cannot be prejudiced by the proceedings, they 
 need not be made parties. Adams v. Stevens, xlix. 362. 
 
 28. Where a bill in equity is filed in any county, the court in that 
 county has jurisdiction of all matters, interlocutory or otherwise, except 
 such as by statute or the rules of court may be passed upon by a court 
 in another county, or by a single judge at chambers or in vacation. 
 A7id. S. Ken. B. B. Go. v. And. B. B. Co., xlix. 392. 
 
 29. Where a bill has been filed in one county, and afterwards an ap- 
 plication is made for an injunction, to a judge sitting at nisi prius in 
 another county, and the injunction is granted, it may be upheld, al- 
 though the statute seems to contemplate that the act is to be done by 
 
168 EQUITY. 
 
 a judge out of court, unless by the court in the county where the bill is 
 pending. And. <& Ken. E. B. Co. v. And. B. B. Co., xlix. 392. 
 
 30. But if done in open court in another county, it can have no 
 greater power or effect than if done by a judge at chambers. And. & 
 Ken. B. B. Co. v. And. B. B. Co., xlix. 392. 
 
 31. After the injunction has been issued, the judge has exhausted the 
 power vested in him as a judge out of court where the bill is pending. 
 And.S Ken. B. B. Co. v. And. B. B. Co., xlix. 392. 
 
 32. By R. S., c. 77, § 17, cases in equity, on demurrer to the bill, are 
 for hearing by the court in banc. Hewett v. Adams, l. 271. 
 
 33. Leave to amend the bill should be moved for at nisi prius, the 
 amendments presented and acted upon, that the aggrieved party may 
 have an opportunity to except to the decision. Hewett v. Adams, l. 271. 
 
 34. A bill in equity instituted against the stockholders of a bank, by 
 three persons appointed receivers of the bank, may be amended by strik- 
 ing out the name of one of them who was a stockholder, and inserting 
 it as a defendant party. Hewett v. Adams, l. 271. 
 
 35. In such a bill, if the liability claimed against the stockholders ex- 
 tended to the amount of the stock, but no specific ground for that liabili- 
 ty was stated, an amendment may be allowed, alleging loss by the offi- 
 cial mismanagement of the directors (R. S. of 1841, c. 77, § 44), which 
 may properly be regarded as a specification of the claim. Hewett v. Ad- 
 ams, L. 271. 
 
 36. When the claim in the bill, by the receivers against the stockhold- 
 ers, was for contribution for the payment of the claimants against the 
 bank, their liability as stockholders is the basis of the claim ; and an 
 amendment founded on R. S., c. 47, § 45, making more specific the ground 
 of their liability, was allowed. Hewett v. Adams, l. 271. 
 
 37. Where a bill in equity was filed before the R. S. of 1857 went 
 into effect, by § 2 of the repealing act of that year, the statutes of 1841 
 are continued in force for the prosecution by such suit of all rights and 
 remedies existing by the latter. Wiswell v. Star, l. 381. 
 
 38. If evidence of the truth of facts alleged in a motion to dismiss a 
 bill in equity is not furnished, the sufficiency of the facts to support the 
 motion will not be considered by the court. Wisioell v. Star, l. 381. 
 
 39. On suggestion, that certain stockholders, who were defendants, 
 were not residents of the State, and therefore that the court had not ju- 
 risdiction as to them. Held, that the bill could not be dismissed on a 
 mere suggestion. Wiswell v. Starr, l. 381. 
 
 40. The complainants in a "bill may discontinue on payment of costs ; 
 or without, if they are not claimed by the respondents. Mason v. York 
 & C. B. B. Co., Ln. 82. 
 
 41. When a complainant in equity parts with all his interest in the 
 subject-matter of the suit, the case can no longer be prosecuted in his 
 name ; but the assignee must make himself a party by an original bill in 
 the nature of a supplemental bill. Mason v. York & C. B. B. Co., lii. 
 
 82. 
 
 42. It seems, that the report of a master in chancery is conclusive, as 
 to all the facts passed upon by him. Mason v. York & C. B. B. Go . 
 LII. 82. 
 
EQUITY. 
 
 169 
 
 43. A master in chancery may examine the parties as to the receipt of 
 rents and profits, or the possession of the estate, although one of them 
 may be an administrator. Bailey v. MyrioJc, lii. 132. 
 
 44. The decretal order is the rule for the guidance of a master in chan- 
 cery in this State. Simmons v. Jacobs, lii. 147. 
 
 45. Unless the order otherwise requires, it is not his duty to report the 
 evidence upon which his determination is founded. Simmons v. Jacobs, 
 LII. 147. Bailey v. Myrick, lii. 132. 
 
 46. By c. 155, § 3, of the Public Laws of 1862, no proceedings shall 
 hereafter be had before any master in chancery, unless appointed under 
 the provisions of this act, and the case thereafter committed to him. 
 Siw/mons v. Jacobs, lii. 147. 
 
 47. Where the acceptance of the report of a master, duly appointed 
 prior to said act becoming effective, is objected to after, for the reason 
 that the master was not appointed in accordance with the act ; and the 
 report shows that the hearing before the master was concluded before 
 the act took effect, Held, that the act did not affect the report. Sim- 
 mons V. Jacobs, LII. 147. 
 
 48. In a suit in equity in its nature in rem, when a receiver is ap- 
 pointed, the right to the custody of the property in controversy vests in 
 him immediately upon the filing of his bond. Nbyes v. Bich, lii. 115. 
 
 49. The complainant in an original bill brought to redeem a mortgage, 
 who has assigned all his interest in the mortgaged premises after answer 
 filed, should answer rather than demur to a cross-bill alleging such as- 
 signment. Lambert v. Lambert, Ln. 544. 
 
 50. Whether or not a complainant in equity, who has made a tender 
 before commencing his suit to redeem a mortgage, must bring the tender 
 into court, qumre. Richards v. Pierce, lii. 560. 
 
 51. Where a creditor caused his debtor's right to redeem a prior mort- 
 gage to be sold on execution, and, after the time for redemption had ex- 
 pired, he commenced a suit in equity against the assignee of said mort- 
 gage to redeem it, making the execution debtor also a party, and both 
 respondents testified that the amount purporting to be secured by the 
 second mortgage was actually due to the mortgagee when it was given, 
 and explained the several items constituting the amount ; and, on the 
 other hand, the complainant proved that said mortgagee had declared 
 that said amount was not due ; and it appeared that the mortgager had 
 subsequently used the mortgage for his own benefit, with the assignment 
 of the mortgagee for that purpose, Held, that although these facts threw 
 doubt upon the bona fides of the transaction, the evidence is insufficient 
 to overcome the testimony of the respondents. Richards v. Pierce, 
 Ln. 560. 
 
 52. As a general rule, when by a fair construction of the bill, or at any 
 stage of the proceedings, it becomes certain that the judgment or decree 
 must necessarily be directly against such of the respondents named as 
 reside without the jurisdiction ; and that no judgment or decree can be 
 rendered or made against the respondent before the court, without em- 
 bracing and being binding on them or the estate in which they have an 
 interest, the hearing cannot ordinarily proceed without them. Law- 
 rence V. Pokes, Lin. 110. 
 
 53. But if the bill only seeks a remedy and decree against the respond- 
 
170 EQUITY. 
 
 ent who appears or is within the jurisdiction, and such judgment or 
 decree will not bind, and cannot be enforced here or elsewhere against, 
 but leaves all questions open as to those residing without the jurisdic- 
 tion; then, although they would, if before the court, have^jan interest in 
 the question, and a decree might be made against them ; yet, not being 
 before the court, the cause may be heard and a decree made affecting, 
 legally or equitably, only the party before the court, even if it might be 
 apparent that if within the jurisdiction their joinder would be required. 
 Lawrence v. Mokes, mi. 110. 
 
 54. It seems, that where persons, not within the jurisdiction, are named 
 as parties, the court may, before a hearing on the merits, require satis- 
 factory evidence that such parties have actual knowledge of the pen- 
 dency of the bill against them, and that they can, if they see fit, appear 
 and answer. Lawrence v. JRoJces, mi. 110. 
 
 65. If a master reports that he " gave reasonable notice to each and all 
 of the said defendants" of the time and place appointed by him for the 
 hearing of the parties, it is sufficient in the absence of any evidence to 
 the contrary. State v. Mclntyre, iiii. 214. 
 
 56. If, after reasonable notice, the master proceeds in the absence of 
 the defendant, his report cannot be successfully objected to as being ex 
 parte. State v. Mclntyre, liii. 214. 
 
 57. "Where the want of proper parties is apparent on the face of a hill 
 in equity, the court will not proceed to a decree until the proper parties 
 are before it. Srown v. Johnson, liii. 246. 
 
 58. The report of a master will be sustained, unless it appear from 
 the report or otherwise, that he has acted under a mistake. Pierce v. 
 Faunce, Lnii. 321. 
 
 59. Where the master reported an increased rate of rent, and disal- 
 lowed a'claim for an amount of wood and timber alleged to have been 
 cut from the premises by the mortgagee. Held, that if erroneous, the 
 burden was upon the respondent to show it. Pierce v. Faunce, Lin. 351. 
 
 60. The onus is upon the respondent to establish new facts set out in 
 his answer which seek to avoid, rather than respond to, the bill. Brad- 
 ley V. Webb, LIII. 462. 
 
 61. An answer, complete in erery respect, caimot be treated as an an- 
 swer until the party has filed it. Oiles v. Eaton, liv. 186. 
 
 62. If he died before filing the same, it cannot be filed as an answer 
 by the solicitor. Giles v. Eaton, liv. 186. 
 
 63. His executors may, however, consider how far and to what extent 
 they can properly incorporate into their answer the facts set forth in the 
 unfiled answer. Qiles v. Eaton, liv. 186. 
 
 64. Under R S. of 1857, c. 47, the court must adjudicate that the 
 assets are insufficient to pay the claims against the bank, before the 
 receivers can file their bill in equity against the stockholders. Hewett v. 
 Adams, liv. 206. 
 
 65. And the allegations in such bill that such adjudication had been 
 made, can be proved only by the record of a judgment, to which the bank 
 was a party. Hewett v. Adams, liv. 206. 
 
 66. Docket entries made under a petition to which the bank was not 
 a party, are not sufficient. Hewett v. Adams, liv. 206. 
 
EQUITY. 
 
 171 
 
 67. The petition of the bank commissioners for the appointment of 
 receivers, &c., duly entered and continued upon the docket, until such 
 adjudication, would be the proper process under which all the proceed- 
 ings should be had prior to the filing of the bill. Semble. JSewett y. 
 Adams, lit. 206. 
 
 68. When a fund is bequeathed to executors or trustees upon trust to 
 distribute among the testator's relations, or apply to any other specific 
 purpose, in such manner as they may think fit, the executors or trustees, 
 if willing to execute the trust, will not, on a bill being filed for carrying 
 the trusts into execution, be deprived of their discretionary power ; but 
 they may propose a scheme before the master for the approbation of the 
 court. Drew v. W-akefield, liv. 291. 
 
 69. When a petition for an injunction under § 1, c. 239 of the Public 
 Laws of 1864, ran against the selectmen, collector, and treasurer, eo 
 nomine, and the names of the individuals holding such offices when the 
 bill was drawn, were inserted in the prayer of the bill as parties respond- 
 ent, upon whom service was made. Held, that the injunction would not 
 be dissolved as to the particular respondents, although they had ceased 
 to hold the respective offices named. Clark v. Wardwell, lv. 61. 
 
 See Bank, 8. 
 
 Costs, 10, 16, 20, 21, 25, 32, 34. 
 MOBTGAGE, 11, 94, 102, 103, 112. 
 
 III. PLEADINGS. 
 
 70. In a bill in equity brought by an administrator of an insolvent es- 
 tate, to obtain a re-conveyance of land alleged to have been conveyed 
 by the intestate, without consideration, to defraud his creditors, it must 
 be alleged, that the suit is instituted for the benefit of all the creditors 
 of the estate. Crocker v. Craig, xlti. 327. 
 
 71. In equity, all the parties in interest must be made parties to the 
 suit ; and in a suit seeking to reform a deed, the holder of the equity of 
 redemption, not barred by lapse of time, under a mortgage not fore- 
 closed, is a party in interest, and must be notified. Pierce v. Faunce, 
 XLVii. 507. 
 
 72. Likewise, the grantor in the deed sought to be reformed. Pierce 
 V. Faunce, xlvii. 507. 
 
 73. The administrator of a deceased debtor need not be made a party 
 to a bill seeking a decree, that real estate purchased by him in his life- 
 time, but conveyed to another with intent to defraud his creditors, and 
 levied upon by one of them, shall be released by the person fraudulently 
 holding the legal title. Dockray v. Mason, XLVin. 178. 
 
 74. The assignee of a mortgage, who has parted with all his interest, 
 and has never made himself liable for rents and profits, should not be 
 made a party to a bill to redeem the premises, unless he is charged with 
 fraud or collusion, or a discovery is sought from him. Williams r. 
 /Smith, XLix. 564. 
 
 75. A bill need not set forth minutely the mode of proof of an al- 
 leged fact — a statement of the facts is sufficient, without stating the 
 
172 EauiTY. 
 
 evidence by whicli it is expected to prove them. Lowll v. Farrington, 
 L. 239. 
 
 76. Thus, where it is alleged that a moirtgager «hy his assignment^ in 
 writing on said deed sealed with his seal" (date and consideration 
 stated), " conveyed and assigned unto the complainant all his right, title, 
 and interest in the same, together with the debt secured thereby, and 
 all his claims in and to the mortgage ; all which will more fully appear 
 by said deed and the assignment when produced in court," Sdd, suf- 
 ficient on demurrer, although there is no allegation that the assignment 
 was acknowledged and recorded. Lovdl v. Farrington, l. 239. 
 
 77. When one of the mortgagers refuses to join in a bill for the re- 
 demption of the mortgaged estate, he may be made a defendant party, 
 if, from the allegations, it appears that he still has an interest ; and his 
 demurrer for wrong joinder, will not be sustained; — he should dis- 
 charge himself by his answer and proof. Lovell v. Farrington, l. 239. 
 
 78. The respondents became part-owners of a vessel at different 
 times. The prayer in a bill by one of them against the others, for an 
 account, for that period during which all were owners, is right ; if not 
 thus limited, the bill would be bad for multifariousness. McLellan v. 
 Osborne, li. 118. 
 
 79. A bill in equity seeking an adjustment of the accounts between 
 the part-owners of a vessel, some of whom reside without the jurisdic- 
 tion of the court, cannot be sustained unless such non-residents are sum- 
 moned to answer, or it appears from the allegations in the bill that not 
 only their interests will not be prejudiced by the decree, but also that 
 they were not necessary to the just ascertainment of the merits of the 
 case. Mudgett v. Crager, lii. 541. Stephenson v. Davis, lvi. 73. 
 
 80. It is not enough that the bill allege that " the complainant does 
 not claim there is anything due to him from said non-residents ; or that 
 he does not seek thereby to recover anything from them." Mudgett v. 
 Gager, lii. 541. 
 
 81. In a bill to redeem a mortgage, an assignment by the complainant, 
 after answer filed, of all his interest in the premises mortgaged, can be 
 made available to the respondent by a cross-bill. Lambert V. Lambert, 
 LII. 544. 
 
 82. Such an assignment, thus brought to the knowledge of the court, 
 constitutes a valid defense to the original bill. Lambert v. Lambert, lii. 
 544. 
 
 83. Want of equity is no defense to a cross-bill brought forward by 
 way of defense. Lambert v. Lambert, lii. 544. 
 
 84. Where a creditor caused his debtor's right to redeem a prior mort- 
 gage to be sold on execution, and, after the time for redemption had ex- 
 pired, he commenced a suit in equity against the assignee of said mort- 
 gage to redeem it, making the execution debtor also a party respondent; 
 and alleged, among other things, that a certain other mortgage therein 
 described, given by said debtor to the other respondent was fraudulent 
 and void as to the complainant, and prayed for permission to redeem the 
 former mortgage, that the latter might be declared void, &c., Hdd, that, 
 on demurrer, the bill would not be dismissed on the ground of multifari- 
 ousness, or misjoinder of parties. JRichards v. Pierce, lii. 560. 
 
 85. In equity, where the complainant claims under an officer's sale, W 
 
EQUITY. 
 
 173 
 
 invitum, he is justified in asserting his right against other persons, in 
 making the execution debtor a party. Jtichards v. Fierce, lii. 560. 
 
 86. Where a mortgagee assigns the mortgage and the notes thereby se- 
 cured as collateral security for his own debt, he must be made a party to 
 a bill to redeem ; and so must the assignee receiving such an assignment, 
 although he afterwards make an absolute assignment of the mortgage to 
 another party. Brown v. Johnson, liii. 246. 
 
 87. A railroad corporation and a portion of its stockholders cannot 
 join as co-complainants in a bill to redeem the road from a mortgage, 
 there being no allegation that the corporation has been guilty of any 
 violation of its trust. Ken. <& P. B. B. Co. v. Port. & Ken. B. B. Co., 
 Liv. 173. 
 
 88. To constitute multifariousness as it respects the subject-matter of 
 a bill, the different grounds of suit must be wholly distinct, and each 
 must be sufficient as stated to sustain a bill. Ken. d) P. B. B. Co. v. 
 Port. & Ken. B. B. Co., lit. 173. 
 
 89. If they be not entirely distinct and unconnected ; if they arise out 
 of one and the same transaction, or series of transactions, forming one 
 course of dealing, all tending to one end; and if one connected story 
 can be told of the whole, it is not multifarious. Ken. <& P. B. B. Co. 
 T. Port. & Ken. B. B. Co., lit. 173. 
 
 90. AH who have been so connected with the mortgages of a railroad 
 sought to be redeemed, as to render them liable for income under it, 
 should be made parties defendant. Ken. & P. B. B. Co. v. Port, cfe Ken. 
 B. B. Co., LIT. 178. 
 
 91. Hence, where a bill was brought against a railroad corporation in 
 possession, and a portion of its members, to redeem the road from a mort- 
 gage, alleges that all the individuals named as defendants fraudulently 
 combined together in all the transactions set forth in the bill, of which 
 the plaintiffs complain, and that they are all partakers of the income of 
 the road which should equitably go in payment of the mortgage debt, 
 and the defendant corporation took possession under the mortgage. Held, 
 that there was no misjoinder of defendants. Ken. <& P. B. B. Co. v. 
 Port. <& Ken. B. B. B. Co., lit. 173. 
 
 92. Such a bill must allege that the defendant corporation holds or has 
 some title in the mortgage, or must aver information or belief to that ef- 
 fect. Ken. & P. B. B. Co. v. Port. & Ken. B. B. Co., lit. 173. 
 
 93. It must also allege a formal offer to pay such an amount as may 
 be found due; an aTerment of the demand for an account "in order that 
 the complainants might pay," or the prayer to be " let in to ledeem on 
 payment," &c., is not sufficient. Pen. <& P. B. B. Co. v. Port, tfc Ken. 
 B. B. Co., LIT. 173. 
 
 94. Where there is no allegation of the commencement of a foreclosure, 
 but there is an allegation that possession has been taken as under R. S. 
 of 1857, c. 51, § 54, and that all claims secured by the mortgage have been 
 paid, or have been so purchased that should in equity be considered as 
 paid, there need be no other allegation of payment, or of an adequate 
 tender of the amount of overdue bonds and coupons. Ken. c6 P. B. B. 
 Co. V. Port. c& Ken. B. Co., lit. 173. 
 
 95. Where the only relief sought to be obtained by a bill is by way 
 of injunction, the bill must specifically pray for an injunetion, or it will 
 
174 EQUITY. 
 
 be dismissed on demurrer. JLewiston Falls Manuf. Co. v. Franklin 
 Co., Liv. 402. 
 
 96. Where a bill against a residuary legatee avowedly to compel an 
 election under the will, alleges that the respondent is, by the will, made 
 a residuary legatee and devisee of the estate, and that, by the will, the 
 testator directs that the respondent " have no portion of the estate until 
 he has fairly accounted for and settled the amount charged against him 
 on my (testator's) books, for money advanced by me for him, with inter- 
 est thereon ; and it then sets forth specifically the items of debit and 
 credit, as they appear on the testator's books containing the memoran- 
 dum, " the balance, if not settled for, to come out or aflTect his part of my 
 estate, with all the interest. Held, that the bill is one of inquiry only, to 
 ascertain whether a legatee or devisee will or will not accept a legacy or 
 devise, and not one to compel an election, and is not maintainable. GUI- 
 man V. Gilmati, lit. 453. 
 
 97. In a petition for an injunction against town ofiicers, under § 1, c. 
 239, of the Public Laws of 1864, an allegation denying the prior legal 
 authority of the town to authorize the issuing of town orders by the se- 
 lectmen, and the subsequent legislative ratification thereof, puts directly 
 in issue the legality of the town meeting. Clark v. Wardwell, lv. 61. 
 
 98. A bill alleging that the complainant and one of the respondents 
 were copartners, and praying for a settlement of the partnership con- 
 cerns ; and alleging a fraudulent sale of all the property of the firm by 
 one of the respondents to the other, and praying that such sale may be 
 declared void, is bad for multifariousness. Sawyer v. Noble, lv. 227. 
 
 99. By the " rules in chancery cases " in this State, defendants may 
 severally demur and answer to the merits of the bill at the same time. 
 Smith V. Kelley, lvi. 64. 
 
 100. In such cases, the complainant need not reply until the demurrer 
 is disposed of. Smith v. Kelley, lvi. 64. 
 
 101. Equity forbids the joining in one bill of entirely distinct matters 
 of complaint having no connection with each other; or the introduction 
 of parties who are not interested in the subject-matters or decree sought, 
 and have but an incidental interest in some question raised by the alle- 
 gations in the bill. Warren v. Warren, lvi. 360. 
 
 102. It is impracticable to lay down any general rule as to what con- 
 stitutes multifariousness as an abstract proposition ; but each case must 
 depend upon its own circumstances, and much must necessarily be left 
 to the sound discretion of the court. Warren v. Warren, lvi. 360. 
 
 103. A bill, filed January, 1867, set out a copartnership between two 
 in the business of lumbering, farming, trade, and navigation, from 1815 to 
 1845, when, one of the copartners having died intestate, the plaintiffs, 
 being the sole heirs of the deceased member, were admitted into the 
 firm by the surviving partner, whereupon the partnership business con- 
 tinued until 1862 ; that, in 1844, another person was admitted into a par- 
 ticular branch of the partnership business, which continued till 1854, 
 when he sold out, received from the copartnership his share of the profits 
 and accounted for his share of the property, and, at the same time, the 
 plaintiffs purchased the other partner's interest in this branch of the 
 business ; that the general business of the copartnership continued until 
 1862, when the original surviving partner died testate, and the defend- 
 ants were appointed executors of his will; that the plaintiflTs claimed an 
 
EQUITY. 
 
 175 
 
 account of all partnership transactions from 1845 to 1862, as well as those 
 prior to 1845. On demurrer, Held, (1) That the bill was not multifa- 
 rious ; (2) That the new partner, in the particular branch of the part- 
 nership business, need not be made a party ; (3) That the bill was brought 
 by the proper plaintiffs, they suing as partners, and not simply as heirs ; 
 and (4) That the bill having been filed within six years after the final 
 dissolution, the cause of complaint is not necessarily barred by the stat- 
 ute of limitations. Warren v. Warren, lvi. 360. 
 
 See Bank, 8. 
 
 Dowers, 33, 34, 35. 
 
 Mortgage, 85, 86, 87, 88, 89, 92, 97, 98, 99, 100, 101. 
 
 IV. EVIDENCE. 
 
 104. Where an attorney entered his general appearance. May term, 
 1858, for several defendants, some of whom were not residents in this 
 State, and, at the October term following, on written motion, he was 
 permitted to enter upon the docket that he limited his appearance so as 
 not to embrace the non-residents, alleging that he was never authorized 
 to appear for them, but such entry not to be construed as an admission 
 of the fact that his general appearance was unauthorized; and, at the 
 May term, 1862, he had leave to withdraw and did withdraw, Held, 
 that testimony offered at the time of withdrawal for the purpose of 
 showing his unauthorized appearance was inadmissible. Simmons v. 
 Jacobs, Lii. 147. 
 
 105. When the decretal order does not require the master in chan- 
 cery to report the evidence, no testimony outside of the report touch- 
 ing the points determined in the rejjort is admissible to prove any facts 
 set forth in motions to set aside, or in exceptions to the acceptance of 
 the report. /Simmons v. Jacobs, lii. 147. 
 
 106. Where in a bill praying for an account between partners, the ev- 
 idence establishes the fiict of partnership between the parties and of its 
 dissolution, the complainant is thereby prima facie entitled to maintain 
 his bill. Bradley v. Webb, liii. 462. 
 
 107. So much of the loth "rule of court in chancery cases" as per- 
 tains to a party's filing duly recorded deeds or copies thereof with the 
 clerk, &c., is permissive and not mandatory. Hatch v. Hates, liv. 136. 
 
 108. If a party does not file his deeds as therein expressed, they are 
 not therefore inadmissible, but are subject to the rules of evidence oth- 
 erwise applicable. Hatch v. Bates, liv. 136. 
 
 109. Independent of the rules of court, a certified copy of a deed 
 duly recorded is ^riwia/acje evidence when the party producing it is 
 not the grantee ; and the original deed is admissible without proof of 
 execution in the same manner as the copy. Hatch v. Bates, liv. 136. 
 
 V. GENEKAL PRINCIPLES. 
 
 (a) Tbust. 
 
 (b) Pkaud. 
 
 (c) Bills foe specific peefokmance. 
 
 (d) Bills to kedeem. 
 
 (e) Othbe cases. 
 
176 EQUITY. 
 
 (a) Trust. 
 
 110. A bequest of property to trustees, to be by them paid over to the 
 executive committee of the American Peace Society, to be expended in 
 the cause of peace, is sufficiently definite, and the trust thus created will 
 be upheld. Tappan v. Deblois, xlv. 122. 
 
 111. This court has jurisdiction of all cases of trusts, whether arising 
 by implication of law, or created by deed, or will. Tappan v. Deblois, 
 XLV. 122. McLarren v. Brewer, li. 402. 
 
 112. And if, afterwards, the parties compromise and settle their ac- 
 counts, and give mutual discharges, without mentioning the land so con- 
 veyed, but which is really worth less than the amount due from the 
 original obligee of the bond, he is not entitled to have a conveyance to 
 himself, and a court of equity will not interfere. Mamsdell v. Emery, 
 XLVI. 311. 
 
 113. If the obligee of a bond, for the conveyance of land, assign such 
 boud to a third party, with a verbal agreement that it shall be held as 
 collateral security for sums due on account, and the account not being 
 paid, the assignee of the bond pays the obligor, and takes a deed to him- 
 self, there is no implied resulting trust. JRamsdell v. Emery, xlvi. 312. 
 
 314. In all cases of implied trust, the right is perfect when the money 
 of the cestui que trust has been paid. JRamsdell v. Emery, xuvi. 311. 
 
 315. Where a resolve authorized the land agent to convey a certain 
 lot to A. or his assigns, the determination of the land agent that a cer- 
 tain person is the assignee of A. and entitled to the conveyance as such, 
 is binding and conclusive upon other parties claiming under a prior deed 
 of the same land from A. himself. In such case, the question whether 
 the assignee took the title charged with a trust for the benefit of A., or 
 of A.'s grantee, is properly for a court of equity ; and such trust, if any 
 existed, cannot be interposed to prevent the holder of the title from the 
 State recovering his legal estate in a suit at law. Cary v. Whitney, . 
 XL VIII. 516. 
 
 116. But a deed of quitclaim or release from A. prior to the land 
 agent's deed to B., does not create any such trust, either expressly or by 
 implication of law. Cary v. Whitney, xLvni. 516. 
 
 117. The general provisions of the statute 43 of Elizabeth, relating^ 
 to bequests in trust for charitable uses, are in force in this State. But, 
 as the jurisdiction of this court, over such cases of trust, is not derived 
 exclusively from that statute, so it is not restricted by it. Tappan v. 
 Deblois, XLV. 122. Preachers' Aid So. v. Mich, xlv. 552. 
 
 118. When such a trust is created by a bequest for charitable purposes, 
 if the charity is definite in its objects, is lawful, and is to be regulated by 
 trustees specially appointed for that purpose, this court has jurisdiction 
 over it, independently of the statute of Elizabeth, derived from its gen- 
 eral jurisdiction over trusts, and will cause it to be executed, whether 
 the uses designated are or are not within the terms of that statute. 
 Tappan v. Deblois, xlv. 122. Preachers^ Aid So. v. Rich,, xlt. 552. 
 
 119. A bequest of property to trustees, to be by them paid over to 
 the executive committee of the American Peace Society, to he expended 
 in the cause of peace, is sufiiciently definite ; and thje- trust so created 
 will be enforced. Tappan v. Deblois, xlv. 122. 
 
EQUITY. 
 
 177 
 
 120. Where a bequest was made to an unincorporated association, 
 and, after the death of the testator, its members became legally incor- 
 porated, the court decided that the property bequeathed be delivered to 
 the corporation to be held in trust for the purposes specified by the tes- 
 tator. Preachers' Aid So. v. Mich, xlv. 552. 
 
 121. The implied trust or pledge, which each member of a partner- 
 ship has, that its property shall be applied to the payment of its debts, 
 extends, as well to the real estate, purchased for partnership uses, with 
 the funds of the partnership, as to stocks, chattels, or debts ; notwith- 
 standing the real estate may have been conveyed by such a deed, as, 
 under our statutes, would, at law, make the partners tenants in com- 
 mon. Orooker v. CrooTcer, xlvi. 250. 
 
 122. A bill may be maintained against cestuis que trust, notwith- 
 standing the trustees also are parties. Hewett v. Adams, l. 271. 
 
 123. So, as to wives holding in trust for their husbands. JSewett v. 
 Adams, l. 271. 
 
 124. If a debtor purchases real estate, and causes the conveyance to 
 be made to a third person, it creates a resulting trust in favor of the 
 purchaser. And such an estate cannot be attached or levied upon, by a 
 creditor of the cestui que trust. Corey v. Gheene, li. 114. 
 
 125. If the mortgager of a vessel, without the assent of the mortgagee, 
 sell it with warranty of title and receive, as a consideration for the sale, 
 promissory notes, the law imputes a trust in the mortgager during his 
 life ; and that trust follows the notes in the hands of his representatives. 
 McLarren v. Brewer, li. 402. 
 
 126. In such case the mortgagee may maintain a bill in equity against 
 the representative of the mortgager to enforce his claims, the estate of 
 the mortgager being insolvent. McLarren, v. Brewer, li. 402. 
 
 127. Several releases by joint trustees will not bar a legal joint claim 
 by the trustees against the person to whom such releases have been 
 given. Pearce v. Savage, li. 410. 
 
 128. Equity will not recognize a settlement of a trust estate made up- 
 on estimates without computation ; but will require parties to produce 
 their evidence and vouchers. Pearce v. Savage, li. 410. 
 
 129. Three persons verbally agreed, that if either should be the pur- 
 chaser of a lot of land at an administrator's sale, they should be equally 
 interested in the purchase ; that when the purchaser received the deed, 
 he should convey one-third to each of his associates. The purchaser 
 having refused to convey, on tender of one-third part of the purchase- 
 money by one of them, a bill in equity was brought to compel convey- 
 ance. Meld, That equity would not afford relief, the agreement being 
 within the statute of frauds ; that the defendant did not hold the land as 
 trustee ; nor was there any resulting trust. Farnham v. Clements, li. 
 426. 
 
 130. No resulting trust can arise from the payment or advance of 
 money after the purchase has been completed. Farnham v. Clements, 
 LI. 426. 
 
 131. Equity will not permit trust property to be reconveyed to one 
 of several trustees, before his duties as trustee are ended, for the same 
 considerations for which it was sold by them, except for the benefit of 
 the cestui que trust, l^oynton v. Brastow, liii. 362, 
 
 12 
 
178 EQUITY. 
 
 132. By R. S. of 1857, c. 73, § 11, there can be no trust concerning 
 land, except trusts arising or resulting by implication of law, unless crea- 
 ted or declared by some writing signed by the party or his attorney. 
 Dudley v. Bachelder, liii. 403. 
 
 133. If, in a bill brought to enforce a trust concerning lands, it be 
 stated generally that an agreement or contract was made, the court will, 
 on demurrer, presume it was a legal contract until the contrary appears. 
 Dudley v. Bachelder, liii. 403. 
 
 134. To establish a resulting trust, it must be clearly proved that the 
 consideration of the purchase belonged to the cestui que trust, or was 
 advanced by some other person as a loan or gift to him. Dudley v. JBach- 
 elder, liii. 403. 
 
 135. Where several pay the purchase-money for the purpose of secur- 
 ing an interest on the part of each, a trust will result in the proportion 
 of the payment of each when paid for some specific part or distinct in- 
 terest in the estate ; but not otherwise. Dudley v. JBachelder, liil 403. 
 
 136. When a trust is ineffectually declared, or fails, or becomes inca- 
 pable of taking effect, the party taking it shall be deemed a trustee for 
 other ti-usts in the will, or for those who are to take under the disposi- 
 tions of law. Drew v. Wakefield, liv. 291. 
 
 See Assignment, 5. 
 
 (b) Fraud. 
 
 137. Parties, taking conveyances from those in whom the records dis- 
 close the title to be, in good faith, without notice of fiaud affecting prior 
 transactions, and for a valuable consideration, are to be protected. St,om 
 v. Bartlett, xlvi. 438. 
 
 138. It seems that the remedy of the equitable owner of real estate, 
 who claims that the levy of an execution upon the same, as the property 
 of the one having only the legal title thereto, is fraudulent as against him, 
 is in equity, and not in law. Knight v. Mayherry, xlviii. 158. 
 
 139. By R. S. of 1857, c. 61, § 1, where payment was made for prop- 
 erty conveyed to a married woman from the property of her husband, or 
 it w;is conveyed by him to her without a valuable consideration paid 
 therefor, it may be taken as the property of the husband to pay his debts 
 contracted before such purchase. Dockray v. ilfason, XLvni. 178. Low 
 V. Marco, liii. 45. Des Brisay v. Hogan, liii. 554. 
 
 140. After a creditor, in such case, has exhausted all legal remedies, a 
 court of equity will aid him in perfecting his title to the estate, and pre- 
 vent his being injured by an outstanding fraudulent title. Dockray v. 
 Mason, XLVIII. 178. Corey v. Gheene, li. 114. 
 
 141. In case of fraud or mistake in the settlement of partnership ac- 
 counts, the remedy of the aggrieved partner is by bill in equity. Hol- 
 yoke V. Mayo, l. 385. 
 
 142. A demurrer to a bill in equity will not be sustained on the ground 
 that the complainants have not levied their execution upon the premises, 
 which it is alleged the judgment debtor had purchased and caused to be 
 conveyed to the other defendant in the bill, tcj defraud his creditors, he 
 never having had any legal title thereto. Gofey v. Qreene, li. 114. 
 
EQUITY. 
 
 179 
 
 143. A return oi nulla bona upon the execution is all that is necessary 
 to lay the foundation for a siiit in equity. Corey v. Greene, Li. 114. 
 
 144. If the value of the property held in fraud exceeds the amount of 
 the complainant's demand, there may be a decree that the grantee shall 
 pay such demand. Corey v. Greene, li. 114. 
 
 145. If the debt exceeds the value of the property, or the grantee has 
 already paid other debts of the cestui que trust out of it, a master may 
 be appointed to determine the value of his remaining interest, for what 
 sum he shall release it, and how much the creditor shall allow the debtor 
 for it. The power of the court is plenary, as well in regard to the form, 
 as to the amount of relief, to be granted. Corey v. Greene, li. 114. 
 
 146. Section 1, c. 61, of R. S. of 1857, does not prescribe the man- 
 ner in which " property conveyed to a married woman from the property 
 of her husband " may be taken as the property of her husband. Low v. 
 Marco, liii. 45. , 
 
 147. It may be taken by levy, when the title has once been in the 
 husband, and he has conveyed it directly o^ indirectly to his wife 
 without a valuable consideration, in fraud of his creditors. Low v. Mar- 
 co, LIII. 45. 
 
 148. By process in equity without a levy, when the husband has never 
 had any legal title, but it has been conveyed to the wife with a resulting 
 trust for his benefit. Low v. Marco, Lin. 45. Des Brisay v. Hogan, 
 Lm. 554. 
 
 149. Or by levy and process in equity. Low v. Marco, Lin. 45. 
 
 150. The complainant, as mortgagee of the assignee of a former mort- 
 gager, brought his bill against an assignee of the former mortgage to re- 
 deem it. The respondent, to defeat the complainant's title, testified that 
 he informed the complainant on the day before the latter took the mort- 
 gage, that he (respondent) believed the complainant's grantor's title was 
 fraudulent and without consideration. Held, not to be sufficient evidence 
 of the complainant's cognizance of fraud to warrant a setting aside of 
 the mortgage. Match v. Bates, liv. 136. 
 
 151. However defective the description, or however inapplicable the 
 terms of an assignment for the benefit of creditoi'S, to property of any 
 kind conveyed and transferred by the assigner, previous to the assign- 
 ment, with the design to defeat, delay, or defraud creditors ; " property 
 thus situated " will pass to the assignee,'' and he may maintain a bill 
 against the fraudulent grantor and grantee for the benefit of subsequent 
 as well as prior creditors. Pub. Laws of 1859, c. 112, § 2. Simpson v. 
 
 Warren, lv. IS. 
 
 (c) Bills for specific performance. 
 
 :152. A court of equity will not decline to enforce the specific perform- 
 ance of a written contract for the conveyance of real estate, because the 
 parties have therein agreed upon a penal sum " as liquidated damages " in 
 case of non-performance. JTuU v. Sturdivant, xlvi. 84. 
 
 153. ITor is the form of the contract of any importance, if it appears 
 by it that the parties intended it to be an agreement for the sale of lands. 
 Bull V. Sturdivant, xlvi. 34. 
 
 154. Time is not the essence of such a contract ; and, if there has 
 
180 EQUITY. 
 
 been an express or implied waiver of it by the parties, the court will de- 
 cree a performance. Hull v. Sturdivant, xlti. 34. Chamberlain \. 
 JBlacJc, LT. 87. Snowman v. Harford, lv. 197. 
 
 155. As a court of equity, this court has no power to compel a specific 
 performance of a verbal contract for the sale of land, even though partly 
 executed. Patterson v. Yeaton, xlvii. 308. 
 
 156. Nor, in law, can such a contract be held a valid defense against 
 a party having an equitable right to redeem a mortgaged estate. Patter- 
 son V. Yeaton, xlvii. 308. 
 
 157. But so far as the purchaser has paid money in pursuance of the 
 verbal sale, or made improvements on the estate by reason thereof, he is 
 entitled to compensation. Patterson v. Yeaton, xlvii. 308. 
 
 158. The respondent contracted in writing to convey to the complain- 
 ant certain land, provided the latter should pay to the former a certain 
 nbte (dated Dec. 20th, 1864, payable in one year with interest), " accord- 
 ing to its tenor and date." On the 20tli of Dec, 1865, the complainant ten- 
 dered the amount of tlie note to and demanded a deed of the respond- 
 ent, who, without making any objection to the tender, replied he would 
 never deliver a deed according to the terms of the conti'act, but ■would 
 give one with a certain reservation, if the complainant would receive it 
 in fulfilment of the contract. In a bill to compel specific performance, 
 Held, that the tender was waived, and whether the parties, by the lan- 
 guage in their contract, intended the money should be payable at the end 
 of the year or three days later, qumre. Chamberlain v. Black, lv. 87. 
 
 159. A court of equity discriminates between those terms which are 
 formal and those which are of the substance and essence of a wiitten 
 contract for the conveyance of land. Snowman v. Harford, iv. 197. 
 
 160. Where, from conversations between the parties thereto, had a 
 short time before the final payment was to be made, it is apparent that 
 neither of them expected or required a strict performance as to time, a 
 court of equity will decree a conveyance, provided the party seeking it 
 has always been ready to pay accoi'ding to the terms of the agreement, 
 and the time was suffered to pass, by his being led to believe, by the 
 conduct of the other party, that no advantage would be taken of such 
 non-payment. Snowtnan v. Harford, lv. 197. 
 
 161. This court has jurisdiction to decree a specific performance of the 
 stipulation in the mortgage of railroad and rolling stock, authorizing the 
 trustees to take possession of the mortgaged property for non-payment of 
 the bonds ; and a bill in equity is a proper remedy to obtain it. Shepky 
 V. At. & St, L. B. B. Co., LV. 395. 
 
 162. One Goddard conveyed a certain lot of land to defendant Kelley, 
 reserving to himself, heirs, and assigns, the " free and perpetual right of 
 way over such part of the premises as shall be occupied by a passage- 
 way " and cross-passage-way to be completed as described. The next 
 day, by a bond duly executed to Goddard, Kelley obligated himself, 
 heirs, and assigns, to " finish or cause to be finished " on demand, after a 
 certain time, the passage-ways described by courses, distances, and 
 widths. Subsequently, Goddard conveyed the adjacent lot and all the 
 right of way and passage across the Kelley lot reseiwed in the first- 
 named deed, and derived from the bond of Kelley, and assigned to him 
 the bond. Afterwards, the Kelley lot, through sundry mesne convey- 
 ances subject to the reservation, became the property of the defendant 
 
EQUITY. 
 
 181 
 
 Hamblen, who, together with Kelley, was requested but neglected to 
 finish the passage-ways. In a bill in equity, praying for a decree of spe- 
 cific performance of the obligation in the bond. Held, (1) that Kelley, 
 having sold the land, could not comply with a decree for specific per- 
 formance ; and hence no such decree would be made. (2) That the 
 bond was a personal obligation on the part of Kelley, and not a cove- 
 nant running with the land and binding upon the grantees of Kelley 
 Smith V. Kelley, lvi. 64. 
 
 (d) Bills to redeem. 
 
 163. Where the mortgager, or one claiming under him, is entitled, to 
 redemption, the remedy is not in a suit at law, but in a bill in equity. 
 Pearce v. Savage, xlv. 90. Pratt v. Skolfield, xlv. 386. 
 
 164. If the debt secured by a mortgage has been paid, the mortgager's 
 remedy is by a bill in equity. Pratt v. Skolfield, xlv. 386. 
 
 165. In proceedings to redeem mortgages, the mortgagee must include, 
 in his account rendered, only such prior incumbrances as he has actually 
 paid, and no others. Stone v. Bartlett, xlvi. 438. 
 
 166. If a judgment creditor extend his execution on a portion of the 
 land mortgaged to secure the same debt, and the debtor neglect to re- 
 deem for the space of one year thereafter, so much of the estate as is cov- 
 ered by the levy is absolute in the creditor, notwithstanding the mort- 
 gage. But the creditor may redeem the residue, however, by bill in 
 equity ; and the court will appoint a master to ascertain the amount of 
 rents and profits upon the whole premises, to the time of the levy, and 
 upon the residue, from that time, until a release shall be executed and 
 possession surrendered by the respondent, for which sum and costs exe- 
 cution will be issued. CrooJcer v. Frazier, lii. 405. 
 
 See MOKTGAGB. 
 
 (e) Other cases. 
 
 167. "When the intention of a testator can be ascertained from the 
 will, a court of equity will carry that intention into effect, if it can be 
 done consistently with the rules of law. Tappan v. Dehlois, xlv. 122. 
 
 168. The proceedings should be by bill in equity, and not by writ of 
 entry, for the recovery of land, by one who claims title under a levy 
 thereon of an execution against a debtor, who never had the legal title 
 to it, but had only an equitable interest therein. Eastman v. Fletcher, 
 XLV. 302. 
 
 169. Where the creditors of one of the members of a copartnership 
 had instituted suits at law against him, and attached his legal interest 
 in real estate conveyed by such a deed, as, under our statutes, would, 
 at law, make the partners tenants in common, intending to levy thereon 
 to satisfy their judgments, when rendered, the court, in the exercise of 
 its chancery powers, will interpose to protect the rights of the other 
 partners, when the estate attached will be required to pay the debts of 
 the firm (including the firm's liabilities to its individual members), and, 
 if without it, the partnership will be insolvent. Croaker v. Crooker, 
 XLVL 250. 
 
 170. The rule, that one part-owner of a vessel aggrieved by another 
 must resort to a bill in equity for redress, applies only to cases relating 
 to her earnings or disbursements, where no settlement has been made or 
 account stated between them. Ripley v. Crooker, xlvii. 370. 
 
182 EQUITY. 
 
 171. Where A. sued B., and attached property, and C. became receiptor 
 and surety for the payment of B.'s debt, and, on judgment being ob- 
 tained, paid it to the officer having the execution, and A. subsequently 
 accepted the money paid ; and afterwards C. sued the judgment against 
 B. in A.'s name, obtained a new judgment, and levied the execution on 
 real estate attached in the suit, Held., that C. had all the rights of an 
 assignee, aind was entitled to relief in equity against A., who had refused 
 to convey to him the land levied upon. Garnsey v. Gardner, xlix. 167. 
 
 172. It is the general rule, that a mistake in an instrument can be 
 reformed in equity only when the litigation is between the original par- 
 ties to it. Adams v. Stevens, xlix. 362. Jordan v. Stevens, li. 78. 
 
 173. But where one purchases with knowledge of the mistake and 
 the true intent and design of the instrument, he stands in no better po- 
 sition than the original parties. Adams v. Stevens, xlix. 362. 
 
 174. This court has jurisdiction in equity to reform a mistake in a 
 deed. Adams v. Stevens, xlix. 862. Jordan v. Stevens, li. 78. 
 
 176. To reform a deed in equity is to make a decree, that it shall be 
 read and construed as it was originally intended by the parties, when an 
 error in fact has been committed. Adams v. Stevens, xlix. 862. 
 
 176. Before a bill can be maintained by receivers against the stock- 
 holders of a bank, under the provisions of R. S. of 1841, c. 77, § 44, it 
 must be judicially determined that there has been a loss occasioned in 
 the capital stock by the official mismanagement of the directors, and that 
 the directors are unable to make good the loss. Sewett v. Adams, 
 L. 271. 
 
 177. Chapter 47, § 47, expressly authorizes an individual creditor of 
 the bank to maintain a suit to determine these questions. Hewett v. 
 Adams, l. 271. 
 
 178. When receivers are appointed, a lien is created by R. S. 1857, 
 0. 47, § 74, upon the real estate situate in this State ; and the court has 
 jurisdiction over the real estate situate in this State, of stockholders 
 residing out of the State. Wiswell v. Starr, l. 881. 
 
 179. Although partners may adjust one partnership transaction sepa- 
 rately, leaving all others unsettled, and an action would lie for a balance 
 found due to one of them in that particular transaction ; yet, if thei:e 
 are various unadjusted matters between the partners, the court will not 
 allow an action to be maintained for the ascertained balance, leaving the 
 other matters to be settled by a suit in equity, but all the mistakes or 
 errors must be heard and adjudicated by the same court, and that a court 
 of equity. Solyohe v. Mayo, l. 385. 
 
 180. If copartners enter into a contract for a settlement to be made at 
 a subsequent date on certain terms, whether such contract be performed 
 or not, the remedy of one aggrieved is by action at common law or suit 
 in equity, and not by assumpsit. Holyoke v. Mayo, l. 385. 
 
 181. A man died, leaving children of age, and children under age. By 
 his will, he directed that the " income " of his estate should be applied 
 under the " control and management " of his widow, as executrix and 
 trustee, to provide, support, and furnish a home for his minor children 
 until a period named, so that they should "have the same privilege and 
 assistance the older children enjoyed " in his lifetime. And the re- 
 mainder of the estate, after paying a legacy, he directed to be divided 
 equally amongst all his children, at the end of said period. But the an- 
 nual income proved inadequate for the purposes expressed by the testa- 
 
EQUITY. 
 
 183 
 
 tor. Held, that a court of equity may give relief, by ordering a sale_ of 
 part of the estate, for the purpose of adding to the income, and fulfilling 
 the intention of the testator. Elder v. Elder, l. 535. 
 
 182. It seems, that this may be. done, not only in cases where it is the fu- 
 ture estate of the beneficiaries alone which will thereby be broken in upon, 
 but even where the future estate of others will be diminished, to supply 
 the present need of the beneficiaries. Elder v. Elder, l. 535. 
 
 183. Where the mistake is one of law, and where there are other ele- 
 ments, not in themselves sufficient to authorize a court of equity to in- 
 terpose, but which, combined with such a mistake, should entitle the par- 
 ty to be relieved, the court will afford relief. Jordan v. Stevens, li. 78. 
 Freeman v. Curtis, li. 140. 
 
 184. Thus, although there be no actual fraud, if one is unduly influ- 
 enced and misled by the other to do that which he would not have done, 
 but for such influence, and he has in consequence conveyed to the other 
 property without any consideration therefor, or purchased what was al- 
 ready his own, the court will, if it can be done, restore both of the par- 
 ties to the same condition as before. Jordan v. Stevens, li. 78. 
 
 185. The general rule in equity is the same .as in actions of law, that 
 money paid or other property conveyed under a mistake of law, with a 
 full knowledge of all the facts, cannot be recovered back. Freeman v. 
 Curtis, LI. 140. Swett v. Curtis, li. 140. 
 
 186. But when a person induces another, without any considerations 
 to convey real estate to him, under their mistake of fact arising from 
 their ignorance of the law, and the property cannot in good conscience 
 be retained, a reconveyance will be decreed upon a bill in equity there- 
 for. Freeman v. Curtis, li. 140. 
 
 187. Thus, the defendant, having no legal interest in a certain estate 
 represented to the complainants, who were the only heirs of the dece- 
 dent, that some persons had informed him that certain others were joint 
 heirs with them, while other persons had informed him that they, the 
 plaintiffs, were the only heirs ; that the others, claiming to be heirs, had 
 conveyed to him their several interests therein, to enable him to contest 
 a will by which a portion of the property had been devised to strangers, 
 he giving them back an agreement to pay them their several shares of 
 one-twelfth each, of the proceeds thereof; and the complainants there- 
 upon, being ignorant of the law regulating the descent and distribution 
 of estates, and consequently being mistaken as to who were the heirs of 
 said decedent, conveyed their interest in the estate, without any consid- 
 eration, receiving an agreement to pay them, one-twelfth each of the pro- 
 ceeds thereof. Held, that if the defendant knew that the complainants 
 were the only heirs, and that they were ignorant of that fact, he obtained 
 the property from them fraudulently ; if neither of the parties knew who 
 were the legal heirs, no consideration having been paid for the property, 
 the defendant ought not, in good conscience, to retain it ; and the com- 
 plainants were entitled to a decree for a reconveyance. Freeman v. Cur- 
 tis, li. 140. 
 
 188. The receiver, appointed in a suit to foreclose a mortgage on a rail- 
 road, cannot maintain a suit to recover earnings of the road accruing be- 
 fore his appointment. No%jes v. Rich, lii. 115. 
 
 189. Mortgagees are not entitled to the rents and profits of the estate 
 received by the mortgager, while in possession. Nbyes v. Rich, Ln. 115. 
 
184 E&EOE. 
 
 190. Where the complainants, having constructed the hull and spars 
 of a vessel, sold eleven-sixteenths to the respondents, embracing therein 
 one-fourth to H. R. ; and on Nov. 15th, 1854, having completed her fit- 
 tings, caused her to be enrolled ; and, on the day of enrollment, H. R. 
 gave to the complainants a mortgage bill of sale, with a covenant of war- 
 ranty of his one-fourth, together with one-fourth of the masts, bowsprit, 
 sails, anchors, and all the other necessaries thereunto belonging, to secure 
 the payment of two notes of $650 each, payable in three and six months 
 respectively ; and, shortly afterwards, while the vessel was on her first 
 voyage, under H. R. as master, he died insolvent; and the vessel made 
 several voyages thereafter, when she was sold by an agent ; and, on May 
 20th, 1856, the complainants took possession of the one-fourth covered 
 by their mortgage, and perfected their title on July 20th following. Held, 
 (1) That H. R.'s one-fourth of the hull and spars should contribute in 
 that proportion to the payment of the " top-bills," and that his insolven- 
 cy conferred no responsibility on the other part-owners to make up and 
 pay over to the venders such defalcation ; and (2) That if the master's 
 report charge the respondents with H. R.'s- debt for the top-bills, and, at 
 the same time, allow the complainants for one-fourth of the proceeds de- 
 rived from the sale of the vessel including the same articles purchased 
 and charged as top-bills, it will be recommitted for inequity. Simmons 
 T. Jacobs, in. 147. 
 
 191. When the payee of a note of a copartnership, given during its 
 existence, for a copartnership debt, exchanges it, after a dissolution ot 
 the firm, for the several note of each partner, for his share of the original 
 note, he has a precedence over partnership creditors, as to the separate 
 property of each member, which a court of equity will enforce ; but he 
 has no priority of claim upon the partnership property. Crooker v. 
 CrooJcer, Ln. 267. 
 
 192. If one copartner has paid more than his share of the partnership 
 debts, he has a claim upon the partnership property, which, in equity, is 
 superior to the claims of the separate creditors of his copartners. Crook- 
 er V. Crooker, lii. 267. 
 
 193. Where a judgment creditor extended his execution on a portion 
 of the land mortgaged to secure the same debt, and the debtor neglected 
 to redeem, for the space of one year thereafter, so much of the estate as 
 is covered by the levy is absolute in the creditor ; but the debtor may 
 redeem the residue by bill in equity ; and the court will appoint a master 
 to ascertain the amount of rents and profits upon the whole of the prem- 
 ises, to the time of the levy, and upon the residue, from that time, until a 
 release shall be executed and possession surrendered by the respondent, 
 for which sum and costs execution will be issued. Crooker v. Frazier, 
 LH. 405. 
 
 194. If railroads make a connection under a contract, its continuance, 
 in certain cases, will be enforced in equity ; but where such contract has 
 been terminated by the parties, equity will not interfere. And. & -26w. 
 B. B. Co. V. And. B. B. Co., lii. 417. 
 
 195. In 1852, the complainant, by his deed, absolute in form but in- 
 tended for security only, conveyed certain real estate to M. & R., co- 
 partners. In 1858, M. & R. gave him a bond conditioned to reconvey 
 upon payment, within three years, of whatever he should then owe them, 
 which limitation was thereafter waived. Before final settlement M. died ; 
 and, subsequently, the complainant settled with R., as surviving partner. 
 
ERROR. 
 
 185 
 
 and paid him the full amount due the firm. Hdd, that the complainant 
 was entitled to a release from the heirs of M., with covenants of war- 
 ranty against claims by, through, or under them. Hodghins v. Merritt, 
 Lm. 208. 
 
 196. R. S., c. 51, § 9, does not authorize the assignee of a judgment of 
 the county commissioners, recovered in favor of the owner of land against 
 a railroad company, for land damages, to maintain a bill for " an injunc- 
 tion against the use or occupation of" the land taken, and in which the 
 complainant has no interest. Illsley v. Portland <& Rochester JR. R. Co., 
 Lvi. 531. 
 
 See Deed, 24. 
 
 DowEK, 33, 34, 35. 
 Mortgage, 11. 
 Railroad, 11, 12, 13, 14. 
 
 ERROR. 
 
 I. IN WHAT CASES IT WILL LIE. 
 IL PEOCEEDUSTGS, AND GENERALLY. 
 
 L IN WHAT CASES IT WILL LIE. 
 
 1. Error does not lie to recover a judgment rendered on an agreed 
 statement of facts ; nor wher* the facts proved before the jury are 
 reported by the judge, unless for an error disclosed by the record which 
 will not be cured by a verdict. Warren v. Coombs, xliv. 88. 
 
 2. No writ of error lies to examine a question of fact depending upon 
 the evidence in the original suit, nor to examine mixed questions of law 
 and fact. Warren v. Coombs, xliv. 88. 
 
 3. A judgment recovered on default, against a person admitted to 
 have been non compos m.entis at the time of the proceedings in the case, 
 will be reversed on a writ of error brought by his administrator after his 
 decease. Leach v. Marsh, xlvii. 548. 
 
 4. The case of a judgment on default, against a person admitted to 
 have been non com,pos, is to be distinguished from the case of King v. 
 Robinson, 33 Maine, 114, where the fact of unsoundness of mind was not 
 admitted, and the defendant appeared by attorney, and judgment was 
 rendered upon a trial and verdict. Leach v. Marsh, xlvii. 548. 
 
 5. Judgment will not be reversed on error in a suit against an inhabi" 
 tant of this State, in which the service was made by leaving a summons 
 at his last and usual place of abode, because at the time of service, he 
 was absent from the State and had no actual notice of the suit. Lovell 
 V. Kelley, xlviii. 263. 
 
 6. Where it is suggested that a defendant is absent and has no actual 
 notice of the suit, it is within the discretion of the court to enter up judg- 
 ment on default, or to continue the action for judgment. The exercise of 
 this discretion cannot be reversed in error. Lovell v. Kelley, xlviii. 26 3. 
 
186 
 
 ESTOPPEL. 
 
 7. If there is a regular judgment and a^ard of execution in an action, 
 it is no ground for a reversal of the judgment on error, that an execu- 
 tion afterwards irregularly issued. Lovell v. EJslley, xlviii. 263. 
 
 8. Error does not lie to correct a mistake in the computation of inter- 
 est, or in computing the amount for which judgment is rendered. Re- 
 view is the proper remedy. Lovell v. Kelley^ XLVin. 263. 
 
 9. A judgment rendered against husband and wife, if, in the original 
 writ, there is nothing to indicate the existence of that relation, will not 
 be reversed on error, because the action could have been defended on 
 the ground that the contract sued was made by the wife during covert- 
 ure, if they had notice of the suit, neglected to make the defense, and 
 submitted to a judgment on default. Weston^. Palmer^ li. 73. 
 
 10. A judgment rendered on a declaration, defective or not alleging a 
 promise to the assignee by the debtor, cannot be reversed on error. 
 Page v. Danforth, Lni. 174. 
 
 11. A declaration upon a policy of insurance against fire, alleging that 
 the company "had due notice and proof of the loss according to the 
 conditions of the policy," but containing no allegation that the company 
 " had due notice and proof of the loss according to the requirements of 
 § 5, c. 3t of the Public Laws of 1861," discloses no error, — it not appear- 
 ing that notice and proof required by the statute are not materially dif- 
 ferent from those required by the policy. Conway F. Ins. Co. v. SewaU, 
 Liv. 352. 
 
 12. Such a declaration is amendable, and a judgment rendered thereon 
 will not be reversed for that cause on error, when the question is not 
 raised until after judgment is rendered upon a verdict. Conway F. Ins. 
 Co. V. Sewall, lit. 852. 
 
 13. To entitle a party, under the United States' Judiciary Act of 1789, . 
 § 25, to cause to be reexamined in the supreme court of the United 
 States, upon a writ of error, a final judgment rendered in the highest 
 court of this State, in which was drawn in question the validity of a 
 statute of the State on the ground of its being repugnant to the Con- 
 stitution of the United States ; it must appear that such statute was not 
 only decided to be valid, but that such decision was indispensable to the 
 judgment here, and that, without it, the judgment would have been in 
 favor of the other party. Frost v. llsley, lv. 376. 
 
 See GuAEDiAN, &c., 8. 
 
 n. PEOCEEDINGS, AND GENEEALLT. 
 
 ^ 14. In a suit in error, where the cause assigned for the reversal of the 
 judgment was that a part of the defendants in the original suit were 
 minors, and did not answer by guardian or next friend, and the defend- 
 ant in error pleaded in nullo est erratum, the fact alleged not being 
 traversed by that plea, is to be treated as admitted ; that plea putting 
 in issue only such errors as appear upon the face of the record. Benner 
 v. Welt, XLT. 483. 
 
 15. If a judgment_ against several defendants is reversed for error as 
 to a part of them, it is reversed wholly, for it cannot be affirmed as to 
 the others. Benner y. Welt, xlv. 483. 
 
ESTOPPEL. 
 
 187 
 
 16. In a writ of error, where on a hearing the former judgment is 
 afBrmed, the' obligors in the bond are bound to "pay and satisfy the 
 judgment rendered, including the damages and costs awarded in the 
 original suit. Pierce v. Goodrich, xlvii. 173. 
 
 17. An agreement, after judgment rendered, to submit the question of 
 the correctness of the taxation of costs to a judge, and indorse the amount 
 disallowed, if any, was for the benefit of the defendant, and it is for him 
 to procure the revision. Pierce v. Goodrich, xlvii. 173. 
 
 ^? 18. Actions brought against persons non compos for necessaries, it 
 seems, constitute an exception to the rule that actions cannot be main- 
 tained against such persons ; but, in such case, the defendant in error 
 should plead the fact in bar to of the suit. Leach v. Marsh, xlvii. 548. 
 
 19. When, for error, a judgment is sought to be reversed, the error 
 must affirmatively appear; for the judgment will not be held to be eiTO- 
 neous when, from aught that appears, it may have been legally rendered. 
 Spaulding v. Rogers, l. 128. 
 
 20. If an execution is extended upon land of the debtor, and it is set 
 off to the creditor in satisfaction of the judgment, and such judgment is 
 afterwards reversed upon a writ of error, the debtor is entitled to the 
 land again ; and he may recover it of one who purchased it of the credi- 
 tor before the reversal of the judgment, without notice of any defect 
 therein ; or, if he has not been evicted, such grantee cannot maintain an 
 action to recover it of him. Bryant v. Fairfield, li. 149. 
 
 21. A plaintiff in error must affirmatively show, by the record alone, 
 that an error exists. Conway F. Ins. Co. v. Sewall, liv. 352. 
 
 ESTOPPEL. 
 
 I. GENERAL PRINCIPLES. 
 
 II. BY DEED. 
 
 in. BY OTHER SPECIALTIES AND OTHER CONTRACTS. 
 
 IV. BY ACTS AND DECLARATIONS. 
 
 V. BY MATTERS OF RECORD. 
 
 I. GENERAL PRINCIPLES. 
 
 1. Whether, where a mortgage was given to secure the purchase-money 
 agreed to be paid for the purchase of real estate, and the mortgagee has 
 entered and held possession more than twenty years, the widow of the 
 mortgager will be estopped as to dower in the equity, quaere. Moore v. 
 Mollins, XLV. 493. 
 
 2. Estoppels in pais are created by the law for the purpose of doing 
 justice. They are called equitable estoppels in contradistinction to an 
 estoppel by a deed or record. Piper v. Gilmore, xlix. 149. 
 
 3. The general rule of law is, that a party will be concluded from de- 
 nying his own acts or admissions, which were expressly designed to in- 
 fluence the conduct of another, and did so influence it, and when such 
 
188 ESTOPPEL. 
 
 denial will operate to the injury of another. Piper y. Gilmore, xlix- 
 149. Wood V. Pennell, li. 52. Stanwood v. McLellan, xlviii. 275. 
 
 4. It is a general rule, applicable to all estoppels in pais, that they op- 
 erate only between the parties affected by them. The acts or statements 
 of the party making them, must be known to the other ps^rty ; and the 
 latter must thereby be induced to change his position. Wood v. Pen- 
 nell, LI. 52. 
 
 5. Although an estoppel in pais may not always run with the land, a 
 subsequent purchaser with knowledge of the facts constituting the estop- 
 pel, can stand in no better condition than his grantor. Stinchfield t. 
 Emerson, lii. 465. 
 
 II. BY DEED. 
 
 6. In an action for possession against a mortgager, he is estopped by 
 his deed to deny his title to the mortgaged premises at the time of mak- 
 ing the mortgage. Concord M. M. F. Ins. Co. v. Woodbury, xlt. 447. 
 
 7. Where, to support her action to recover dower in certain lands, the 
 widow introduced a mortgage deed of the premises, given many years 
 before, by her husband, on which mortgage appeared an assignment 
 thereof, by the mortgagee, to one from whom the . tenant, through sev- 
 eral mesne conveyances, derived title, if there be no evidence that the 
 assignee ever claimed title under the mortgage, or had any knowledge 
 of the assignment to him, the tenant will not be estopped thereby from 
 denying that the husband had title during coverture. Kidder v. Blais- 
 dell, XLV. 461. 
 
 8. It being a well-settled rule of law, that a vendee is not estopped to 
 prove that there were other considerations, than those expressed in the 
 written instrument, upon the same principle a mortgagee may be permit- 
 ted to prove by j)arol evidence, an additional agreement, not disclosed by 
 the mortgage, and not inconsistent with it. Abbott v, Marshall, XLVin. 
 44. 
 
 9. Although the tenant claims title under the deed of a mortgagee of 
 land, in an action by the widow of the latter, the former will not be 
 estopped from showing that her husband's seisin was only that of a 
 mortgagee. Foster v. Dwinel, xlix. 44. 
 
 10. Plaintiff's husband, being mortgagee of land, foreclosed, and after 
 the foreclosure expired, quitclaimed to the defendant, without mention- 
 ing the foreclosure, describing the land as, " meaning hereby to convey 
 the same premises conveyed to me by R. C, by his mortgage deed, dated," 
 &c.. Held, that there being no declaration in the deed that the mortgage 
 had been foreclosed, the defendant was not estopped to deny that the 
 husband's seisin was that of a mortgager, in an action of dower. Foster 
 V. Pvoinel, xlix. 44. 
 
 11. A release of dower to a person who has conveyed the land by a 
 quitclaim deed containing no covenant other than that of non-claim, 
 creates no estoppel in favor of any other person than the releasee. Sar- 
 riman v. Gray, xlix. 537. 
 
 12. -E. H. purchased a parcel of land, which was conveyed to his wife, 
 and joined with her in a mortgage back to secure a part of the purchase- 
 
ESTOPPEL. 
 
 189 
 
 money. He erected a dwelling-house and other buildings on the land, 
 which he intended as a gift to his wife, with no design to defraud credi- 
 tors. Subsequently, becoming insolvent, one of his creditors attached 
 the buildings and sold them on execution as the personal property of E. 
 H. In trover by the purchaser against the tenant in possession, who 
 claimed as grantee of E. H. and wSe. Held, that the purchaser acquired 
 nothing by the sale on execution, if the buildings became the property of 
 the wife by accession and the intention of herself and husband, the judg- 
 ment debtor having no title to the property; and even if the buildings 
 were the property of the debtor, the title to them would enure to the 
 mortgagee, and the debtor, by the covenants of his deed of mortgage, 
 would be estopped to assert title to the land or buildings. Humphreys 
 V. Newman, li. 40. 
 
 13. Although the wife has signed a deed of the premises with her 
 husband, she is not thereby estopped to claim dower, when the deed 
 contains no words indicating her intention to release her right of dower. 
 LotJirop V. Foster, li. 367. 
 
 14. Where a mortgagee assigns the mortgage and notes secured 
 thereby, with a covenant that " he is lawfully seized in fee of said notes, 
 and has good right to sell the same," he is estopped from denying that 
 they were not all due according to their tenor. Haskell v. Monmouth 
 JF. Ins. Co., LiL 128. 
 
 15. In the trial of a real action, brought after foreclosure, by a mort- 
 gagee of lands against the mortgager, to recover possession of the mort- 
 gaged premises, the defendant is estopped to set up a lease from the 
 assignee of a senior mortgage of the premises, given by the defendant. 
 Jarvis v. Deane, lvi. 9. 
 
 in. BY OTHEE SPECIALTIES AND OTHER CONTRACTS. 
 
 16. It is indispensable that the number of shares of the capital stock 
 of a railroad company be determined before any assessment can be made 
 thereon. A subscriber, who had paid the first assessment made before 
 the shares were all taken, is not thereby estopped from setting up this 
 defense to a suit for the second. Som. & Ken. H. R. Co. v. Cushing, 
 XLY. 524. 
 
 17. One, who had performed labor on masts, brought an action there- 
 for, under c. 144 of the Public Laws of 1855, and the masts were attached 
 for his lien thereon. They were held by a creditor of the owner, as col- 
 lateral security, and afterwards received by him, in payment of the debt 
 for which he held them. The lien-claimant obtained judgment and exe- 
 cution in the ordinary mode, and, on the execution, the officer seized and 
 sold the masts. In a suit by the creditor against the officer. Held, that 
 the owner was not estopped to claim the property by reason of his re- 
 ceipt to the officer who attached it on the writ, on the former suit, even 
 though he might be in a suit by the officer against him for a breach of his 
 contract in the non-delivery of it. . Holyoke v. Qilmore, xly. 566. 
 
 18. The laws of New Hampshire prohibit a mortgager of personal 
 property, under certain penalties, from selling the same without the con- 
 sent, in writing, of the mortgagee, indorsed upon the mortgage, and en- 
 tered in the margin of the record. A mortgagee gave such consent in 
 
190 ESTOPPEL. 
 
 writing, but it was not indorsed nor entered upon the record as the 
 statute directs ; and the mortgager thereupon sold the property in this 
 State. Ildd, that whether such consent was sufficient to protect the mort- 
 gager from his liabilities under the statute or not," the mortgagee was 
 thereby estopped, as against the purchaser, from setting up any claim or 
 title. White Mountain Bank v. West, xlvi. 15. 
 
 19. In a suit upon a i*eplevin bond, the plaintiff is not estopped from 
 showing that the actual value of the property exceeded the sum inserted 
 by the defendant in his writ and bond, as its value, if the plaintiff did 
 not assent to the defendant's estimate of the value. Thomas v. Spof- 
 ford, XLVI. 408. 
 
 20. Where logs were attached to secure the lien thereon, under R. S., 
 c. 91, and the general owner receipted to the officer therefor, reserving 
 his right to claim them as his own property, he will not be estopped in 
 an action brought by the officer, upon the receipt, to assert his right to 
 the logs and to defend the suit. Wilson v. Ladd, xlix. 73. 
 
 21. An unexecuted verbal agreement made by a mortgagee, for a 
 valuable consideration, to discharge a mortgage by a release, will not con- 
 stitute an estoppel in pais. Leamtt v. Pratt, liii. 147. 
 
 22. An agreement in writing, indorsed at the time of the hearing, upon, 
 the back of the warrant of a committee appointed on an appeal for a de- 
 cision of county commissioners, that the report of the committee need 
 not be made at the next " or second term after their " appointment, will 
 not operate as an estoppel so as to confer jurisdiction upon the court. 
 Belfast V. Co. Commissioners, Lin. 431. 
 
 23. A surety on a replevin bond is not estopped by the recitals therein 
 to show how much of the property mentioned in the writ was actually 
 replevied, when the officer's return is indefinite in this particular ; nor 
 is he estopped by the return of the officer, as to the amount of property 
 replevied, unless the return is definite, distinct, and certain in this respect. 
 Miller v. Moses, lvi. 128. 
 
 See Bank, 2. 
 
 COLLECTOE, 23. 
 
 IV. BY ACTS AND DECLARATIONS. 
 
 24. Where the plaintiff took a note on demand, as the agent of the 
 payee, and afterwards purchased it, if the payer disclosed no defense to 
 the agent when he gave the note, or at the same time promised to pay a 
 portion of it at a future time, he is not thereby estopped to set up an ex- 
 isting defense to the same. JParker v. Tuttle, xliv. 459. 
 
 25. If one member of a firm, in purchasing property, so conducts him- 
 self as to lead the vender to suppose that he is acting for the firm, he is 
 thereby estopped, as against such vender, from claiming that the sale was 
 made to him alone. White Mountain Bank v. West, xlvi. 15. 
 
 26. Where a forged note has been presented to the apparent maker of 
 it for payment, who did not repudiate it, but deceived its holder by lan- 
 guage and acts calculated to induce a reasonable belief that the note was 
 genuine, although, thereby, he may not be regarded as adopting the note 
 as his own, still, he will be estopped from denying his liability thereon, if 
 the holder, acting upon the belief thus created, has suffened damage, or 
 
ESTOPPEL. 
 
 191 
 
 neglected to enforce any remedy he might have had against "any other 
 party. Forsyth v. Day^ xlvi. 176. 
 
 27. Where one, alleging that he was interested with the testator in a 
 claim paid under the treaty with Mexico, and that he is entitled to a share 
 of the money collected, brought his action against the executor, in which 
 the statute of limitation prevented his recovering; and he afterwards 
 sued the executor, but not in his representative character, claiming to re- 
 cover of him, on the ground that the money was paid to him wrongfully 
 and by mistake, Held, that having elected to enforce his demand against 
 the executor, as such, and having full knowledge that he was prosecuting 
 the claim as one due to his testator, and acquiesced therein ; and know- 
 ing, too, that the executor had inventoried and accounted for the money 
 as assets of the testator's estate, arid did not object, he would thereby be 
 estopped to recover, even if there were no other legal objections to his 
 maintaining his action. Thurston v. Doane, xlvii. 79. 
 
 28. Where the cashier of a bank was employed to sell certain shares 
 therein at a fixed price, but, before he completed the sale, the bank was 
 enjoined and j^'oved insolvent, no neglect on his part being shown in for- 
 warding the sale, he is not estopped to show the facts as to the proposed 
 sale, although he had notified the holders that he supposed and had been 
 informed that a sale had been effected. Washburn v. Blahe, xLvn. 316. 
 
 29. Where, pending an action, the court ordered the plaintifi" to fur- 
 nish an iiidorser of the writ before, or become nonsuit at, the next term, 
 and the name of the plaintiff's attorney was put thereon as indorser, by 
 a third person, who erroneously supposed he was authorized to do so ; if 
 the attorney afterward prosecute the action to trial, without informing 
 the other party of the error, he will be estopped from denying the in- 
 dorsement, and held liable for costs recovered against the plaintiff in that 
 suit. Booker v. Stinchfield, xltii. 340. . 
 
 30. The express declarations or acts of a party are strong evidence 
 against him; but he is not estopped by them, unless another person to 
 whom they were addressed has been induced by them to alter his con- 
 dition ; in such case the party is estopped from disputing their truth with 
 respect to that person and that transaction. Stanwood v. McLellan, 
 XLvni. 275. 
 
 81. Thus, when the plaintiff and the owner of land adjoining plaintiff's 
 on the south, both recognize a spotted line as the northern boundary of 
 the neighbor's lot, and thereupon the owner sold to the defendants all 
 the trees northerly of said line ; and the plaintiff, knowing this fact, pre- 
 vious to any trespass, pointed out this line to the defendants and their 
 •workmen, and assented to their cutting up to that line, Seld, the plain- 
 tiff was estopped to deny the truth of his declarations. Stanwood v. 
 McLellan, xLvni. 275. 
 
 82. When the legislature has, by resolve, authorized the conveyance 
 of a certain tract of land to a person, he having, it may be presumed, so- 
 licited the grant, and having afterwards acted under it, he and those 
 claiming under him are estopped from denying the title of the State. 
 Gary v. Whitney, xlviu. 516. 
 
 83. When a magistrate adjourns a criminal case within his jurisdiction 
 more than ten days at one time, at the request of the respondent, the lat^ 
 ter cannot afterwards object to it. State v. Miller, xltiii. 576, 
 
192 
 
 ESTOPPEL. 
 
 34. Certain notes payable to A. were by him deposited with B,, in 
 pledge as security for his indebtedness to B. C, being desirous of col- 
 lecting a claim of his own against A., made inquiries of B. as to the 
 notes ; and B., without being informed of the pufpose of the inquiry, re- 
 plied that the notes belonged to A. Held, that without proof that B. in- 
 tended to deceive C to his injury, the facts do not operate as an estoppel 
 in pais, to prevent B. claiming money paid to him on the notes, notwith- 
 standing the money was attached and seized by C. at the time of pay- 
 ment. Piper V. Gilmore, xlix. 149. 
 
 35. In such case, in order that B. should be estopped from setting up 
 title to the money, it must be shown that he wilfully gave false informa- 
 tion to C, with an intention to deceive him, and to induce him, on the 
 faith of it, to act in a different manner than he otherwise would have 
 done, whereby C. was led so to change his action, and was thereby in- 
 jured. JPiperY. Gilmore, XLIX. 149. 
 
 86. The defendant was not estopped from availing himself of the stat- 
 ute of limitations, where he signed a note, which then had upon it the 
 attestation of a subscribing witness to the signatures of the other makers 
 of the note, the witness not being present when the deiSndant signed it; 
 notwithstanding the promisee, in ignorance of the fact, afterwards took 
 it, as and for a note witnessed as to the signatures of all the makers. 
 Min. & School Fund in Solon v. Howell, xlix. 330. 
 
 37. A railroad corporation voted to issue preferred stock on the fol- 
 lowing condition, viz. : " So much of the net earnings of the road as may 
 be necessary, after paying interest to the landholders, shall be applied to 
 the payment of twelve per cent in semi-annual dividends of six per 
 cent each, to the holders of stock created thereby, until the net earnings 
 shall be sufficient to pay an interest of six per cent on the stock, and all 
 the bonds issued of the first and second loans." Thereupon the direc- 
 tors issued certificates of stock in common form, with the following cer- 
 tificate upon the back, signed by the president and treasurer : "Preferred 
 stock. This certificate is for preferred stock created July 10, 1849, and 
 entitles the holder, from the net earnings of the road, to the payment of 
 six dollars per share semi-annually, until the net earnings of the road 
 shall be sufficient to pay an interest of six per cent per annum on all the 
 stock issued, and all the bonds issued for the first and second loans," Held, 
 that the corporation are estopped to deny that the meetings, at which 
 their votes were passed, were legally called. Bates v. And. S Hen. B. 
 B. Co., XLIX. 491. 
 
 38. If one holds himself out as a partner of another, that does not 
 make him in fact a partner, nor render him liable as such, except to those 
 who are thereby led to believe he is a partner, and who gave credit to 
 the supposed firm upon such belief. Wood v. Pennell, li. 52. 
 
 39. If the officers of a town, in constructing or repairing a public way, 
 dispose of the waste rocks, or earth, for the benefit of some individual, 
 in such a manner as to improve a private way belonging io him, the re- 
 pairs so made upon the private way are for the owner of it and not for 
 the town ; and the town is not thereby estopped from denying its loca- 
 tion, in an action to recover for injuries sustained in consequence of de- 
 fects in such way. Gilpatrick v. Biddeford, li. 182. 
 
 40. In a suit against a sheriff for not serving an execution against his 
 
EVIDENCE. 
 
 193 
 
 deputy, which he had taten for service, he is not estopped from showing 
 that he^ could not legally serve the precept. Bane v. Gilmore, li. 544. 
 
 See Peacticb, 78. 
 Railkoad, 6. 
 
 V. BY MATTERS OF EBCOED. 
 
 41. When an action is brought against an officer for not retaining logs 
 attached and selling them on execution, and no judgment confirming the 
 validity of the.lien appears of record, the defendant officer is not estopped 
 from showing that the lien did not exist, or is lost. Annia v. Gilmore, 
 XLvii. 152. 
 
 42. In an action by a bank, upon a promissory note purporting to have 
 been signed by the defendant, the instruction that if the plaintiffs, relying 
 on the defendant's admission, were induced to refrain from obtaining se- 
 curity from him who actually wrote the defendant's signature to the 
 note, by his arrest, or by an attachment of his property, and they there- 
 by sustained an injury, then the defendant would be estopped from deny- 
 ing his signature, is cori-ect when taken in connection with the fact 
 proved, that the defendant knew that the president of the bank went to 
 him for the express purpose of ascertaining whether or not the signature 
 was genuine, and that he thereupon admitted that it was. Gasco Bank 
 V. Keene, urn. 103. 
 
 43. A person, arrested on a special writ, subsequently and for the pur- 
 pose of procuring his discharge, paying under protest a portion of the 
 sum claimed in the writ, is not thereby estopped from showing, in the 
 trial of an action of malicious prosecution, the want of probable cause in 
 the original suit. Morton v. Young, lv. 24. 
 
 See Real Action, 18. 
 
 EVIDENCE. 
 
 I. PEODUCTIOlSr OF THE BEST EVIDBIfCE. 
 11. ADMISSIBILITY OF EVIDENCE, AS EESPECTS ITS QUALITY. 
 
 III. ADMISSIBILITY OF PAEOL EVIDENCE, TO AFFECT THE CON- 
 
 STEUCTION OF WEITINGS. 
 
 IV. PEESITMPTIONS, AND PEIMA FACIE PEOOF. 
 V. BTJEDBN OF PEOOF. 
 
 VI. EVIDENCE, AS APPLICABLE TO PAETICULAE SUBJECTS AND 
 ISSUES. 
 VII. ADMISSIONS AND DECLAEATIONS. 
 Vin. WEIGHT AND CONCLUSIVENESS OF EVIDENCE; FOEMEE 
 JUDGMENTS. 
 IX. OTHER PEINCIPLES. 
 
 13 
 
194 EVIDENCE. 
 
 I. PEODTJCTION OF THE BEST EVIDENCE, 
 
 (a) In case of writings lost, ob not pkodtjcbd. 
 
 (b) Copies. 
 
 (c) Geneeallt. 
 
 (a) In case of writings lost, or not produced. 
 
 1. Proof that a letter, addressed to one of the parties, was deposited 
 in the post-office, and the postage paid, raises no legal presumption that 
 it came into the possession of the person to whom it was addressed, so 
 as to make secondary evidence of its contents admissible. Freeman v. 
 Morey, xlv. 50. 
 
 2. A plaintiff, who had received from the defendant letters, which, if 
 existing, would be admissible in evidence, may prove their contents by 
 secondary evidence, where the destruction of them is shown to have 
 arisen from misapprehension, and was without any fraudulent purpose ; 
 notwithstanding their destruction was the plaintiff's own voluntary act. 
 Tdbin v. Shaw, xlv. 331. 
 
 8. To repel the inference of fraud, a witness, who was present and ad- 
 vised the destruction of the letters, may be allowed to state his declara- 
 tions made to the party at the time. Tohin v. Shaio, xlv. 331. 
 
 4. The destruction of the letters was a question for the determination 
 of the court; and, from the evidence, the court was also to determine 
 that their destruction was not the result of a dishonest purpose. Tohin 
 V. Shaw, XLV. 331. 
 
 5. The depositing in the post-office a notice to a town that one of its 
 inhabitants has become chargeable as a pauper, was not designed by the 
 statute to be evidence of the contents of the letter, but only of delivery. 
 Belfast V. Washington, xlvi. 460. 
 
 6. Parol evidence of the contents of such notice is not admissible, with- 
 out notice to the opposite party to produce it, or proof of inability on the 
 part of the moving party to produce the original. Belfast v. Washing- 
 ton, XLVI. 460. 
 
 7. Before secondary evidence should be admitted, to prove the con- 
 tents of a note in suit, there should be reasonable certainty of its loss ; 
 and that certainty is.not shown, until it appears to the court that the note 
 is not in the possession of any of the persons, in whose hands there is 
 reason to suppose it may have been. Hammond v. Ludden, xlvil 447. 
 Kidder v. Blaisdell, xlv. 461. 
 
 8. The rule, that a party cannot give secondary evidence of the con- 
 tents of papers in the possession of the opposite party, unless he has 
 given seasonable notice for the production of the papers at the trial, does 
 not apply to cases in which the opposite party must know, from the na- 
 ture of the suit or prosecution, that he is charged with the fraudulent pos- 
 session of the papers. State v. Mayherry, xlviii. 218. 
 
 (b) Copies. 
 
 9. A copy of a recognizance taken before a magistrate on an appeal 
 should not be returned to the appellate court, and cannot be entered of 
 
EVIDENCE. 
 
 195 
 
 record ; neither is a copy admissible to contradict an original, or show it 
 defective. Stetson v. Gorinna, xliv. 29. 
 
 10. An action for the recovery of dower is an action touching the 
 'realty ; and office copies of deeds are admissible under the 26th rule of 
 this court, to establish the title and seisin of the husband. Kidder v. 
 Blaisdell, xlv. 461. 
 
 11. The copy of an enrolment of a vessel, certified by the collector, is 
 not admissible as evidence of ownership, as he is not authorized to grant 
 copies, generally. Dyer v. Snow, xlvii. 254. 
 
 12. Either the records of inferior courts, or duly authenticated copies 
 thereof, or the original papers on which they are founded, are competent 
 evidence. State v. Bartlett, xlvii. 396. 
 
 13. The Act of March 17, 1862, in relation to the use of office copies 
 of deeds, does not repeal the 26th rule of court, but enlarges its operation. 
 Hovey v. Chase, lii. 304. 
 
 14. Independent of the "rules of court," a certified copy of a deed 
 duly recorded '\% prima facie evidence when the party producing it is not 
 the grantor ; and the original deed is admissible without proof of execu- 
 tion in the same manner as the copy. Hatch v. Bates, liv. 136. 
 
 15. By virtue of c. 112 of the Public Laws of 1862, office-copies of cer- 
 tain deeds may be read in evidence in all actions touching the realty, 
 without proof of their execution, where " neither the party offering such 
 office-copy, nor the party opposing, is a party to the deed, or claims as 
 heir, or justifies as servant of the grantee or his heir. Webster v. Golden, 
 LV. 165. 
 
 16. In an action between towns for the recovery of the value of certain 
 pauper supplies, wherein an alleged divorce of one of the paupers from 
 his former wife becomes a material question at issue, the judgment of di- 
 vorce rendered by this court twelve years previously, but shown not to 
 have been extended upon the records, may be proved by a certified copy 
 of the docket entry of the libel and the clerk's memaa-anda of the action 
 of the court thereon. "What evidence is sufficient in such case to legally 
 establish such judgment. Jay v. JEast Livermore, lvi. 107. 
 
 See Insueancb, 108. 
 
 (c) Generally. 
 
 17. In a suit by an indorsee against the maker of a promissory note, 
 payable to an insurance company, and indorsed and transferred for the 
 company by its president, parol evidence that he was acting president at 
 the time of the indorsement, is admissible and sufficient, without pro- 
 ducing the records of the company. Cabot v. Given, xlv. 144. 
 
 18. And, in such suit, between other parties, proof of the handwriting 
 of such president is sufficieht evidence of the indorsement and transfer 
 of the note to the plaintiff, without evidence that he had special authority 
 for that purpose. Cabot v. GHven, xlv. 144. Baker v. Cotter, xlv. 236. 
 
 19. What will constitute diligence in the search for public records and 
 documents, so as to admit secondary evidence in proof of their contents, 
 will depend upon the circumstances of each particular case. Simpson v. 
 Norton, xlv. 281. 
 
196 EVIDENCE. 
 
 20. Thus, where the register of probate testified that he had made 
 search of the records in the case of S. N. ; that he had found but part of 
 the papers in that case ; that he found the files in bad order, and in bad 
 condition ; that some of the files were broken open and were loose ; and 
 that he examined the indexes of the records for the yeaj- or two spoken 
 of, without finding the paper desired or reference to the record thereof 
 in the indexes, — the court will admit parol evidence to show the contents 
 of such papers, especially when the transaction occurred many years 
 before. Simpson v. Norton, xlv. 281. 
 
 21. The only evidence to show the incompetency of a witness on the 
 ground of infamy, is the record of his conviction and judgment thereon 
 by a court having jurisdiction. State v. Damery, xlviii. 327. 
 
 22. In the absence of any record evidence, that the oflScers of the 
 town were duly sworn, the fact may be proved by parol testimony. 
 HatJiaway v. Addison, xltiii. 440. 
 
 23. The transfer of shares of bank-stock cannot be shown by the oral 
 testimony of the cashier, if objected to ; his testimony that he " made the 
 transfer on the books of the bank " is inadmissible. Skowhegan Bank v. 
 Cutler, xijx. 315. 
 
 24. It is no objection that only a few, and not all, of the letters com- 
 prising a correspondence between the parties, are offered in evidence. 
 North Berwick Co. v. New England F.& M. Ins. Co., lii. 336. 
 
 25. The testimony of a d'eceased witness, on a former trial of the same 
 action, may be given in evidence, if the substance of it can be proved, 
 although the exact language of the witness cannot be. Lime Mock 
 Bank v. Hewett, lii. 531. 
 
 II. ADMISSIBILITY OF EVIDENCE, AS EESPECTS ITS QITALITY. 
 
 (a) 
 
 Certainty. 
 
 (b) 
 
 EeliEvancv, and herein of custom and usage. 
 
 (c) 
 
 Miy?ERIALlTT. 
 
 (d) 
 
 Entries. 
 
 (e) 
 
 Opinion and eeputation. 
 
 
 (a) Certainty. 
 
 26. In a suit upon a note which is lost and cannot be produced, it is 
 not enough to show that a note was once given and payable either on 
 demand or on time. Perkins v. Cushman, xliv. 484. 
 
 27. A witness, when testifying, may say it is "his impression," or 
 " he thinks," that the facts concerning which he is testifying were as he 
 states them, when he means by the former expression that he has an in- 
 distinct remembrance, and by the latter that he recollects. Bumphries 
 v. Parker, lii, 502. 
 
 28. The report of evidence, though signed by the presiding judge, is 
 not admissible to prove what a witness testified on a former trial, for the 
 purpose of contradicting him. Webster v. Calden, lv. 165. 
 
 29. Where, in the trial of a writ of entry, the validity of a deed is at- 
 tacked upon the ground of the mentar incapacity of the grantor at the 
 time of its execution, a paper, purporting to be the last will and testament 
 of said grantor, wherein he makes his nephew instead of his daughter re- 
 
EVIDENCE. 
 
 197 
 
 siduary legatee, is too remote and uncertain in its character, and opens 
 too many collateral issues to be admissible. Rovey v. Hobson, lt. 256. 
 
 30. So is a trust deed of certain stocks and notes from said grantor to 
 his former guardian, made for the avowed purpose of carrying into effect 
 the sundry provisions of said will. Hovey v. Hohson, lv. 256. 
 
 (b) Jtelevancy, and herein of custom' and usage. 
 
 31. Proof of a custom in the vicinity for persons building a vessel to- 
 gether, each to be responsible for his own share only, is inadmissible to 
 modify a written contract. Ripley v. Grooker, xlvii. 370. 
 
 32. Proof that an attaching creditor liad notice of an unrecorded mort- 
 gage of the same property which has attached, before the attachment, is 
 inadmissible. Rich v. Roberts, xlviii. 548. 
 
 83. A notary may be permitted to state his usual course of proceed- 
 ings, and his customary habits of business relative to negotiable paper. 
 Union Bank v. Stone, l. 595. 
 
 34. Where one holding himself out as the partner of another, is sued 
 with the other partners, evidence will not be restricted to the transactions 
 between the parties. The dealings of the person sought to be held are 
 admissible to show, not only that he held himself out as a partner, but 
 that the fact has been one of such general notoriety in the community, 
 that the plaintiff may be presumed to have given credit on the strength 
 of it. Wood V. Pennell, li. 52. 
 
 35. A paper irrelevant to the issue is not made admissible for the rea- 
 son that it was introduced in evidence, at a former trial, by the party 
 now objecting to it. Wood v. Pennell, li. 52. 
 
 See Assumpsit, 27. 
 
 (c) Materiality. 
 
 36. A witness, who is also a party to the suit, may testify as to his mo- 
 tive in reference to facts which are within his personal knowledge, com- 
 petent to be proved and pertinent to the issue. Wheelden v. Wilson, xliv. 
 11. 
 
 37. In an action to recover of the mortgagee of a mill and lumber, the 
 value of fixtures furnished whilst the mortgagee was running the mill 
 under a power of attorney from the moijtgagee, the power of attorney 
 was rightfully admitted in evidence as showing a relation between the 
 parties as to the business, although insufficient to prove such agency as 
 would make the mortgagee responsible for improvements or new machin- 
 ery. Holmes v. Morse, l. 102. 
 
 38. "When the plaintiff claims title under the heirs of W. M., and the 
 defendant under a deed from W. M., dated July 28th, 1853, evidence that 
 A. M. had paid a mortgage on the premises in controversy, from A. M. 
 to W. M., dated Dec. 13, 1850, is immaterial. Webster v. Calden, lv. 
 165. 
 
 39. In .the trial of an indictment, the fact that the accused does not 
 testify is a proper one for the consideration of the jury in determining his 
 guilt. State v. Bartlett, lv. 200. 
 
 See Raileoad, 70, 71. 
 
198 EVIDENCE. 
 
 (d) Entries. 
 
 40. A witness cannot be allowed to refresh his memory, by referring 
 to a memorandum taken from his books, when he cannot testify to the 
 fact in question beyond what appears upon them ; the books themselves 
 must be produced. Stanwood v. McLellan, xlviii. 275. 
 
 (e) Opinion and reputation. 
 
 41. The question whether certain specified facts would increase the 
 rates of insurance upon the property insured does not relate to matters 
 of science or skill. Such a question calls for the opinion of the witness 
 upon the influence which certain facts would have upon others, and 
 whether they would be induced thereby to charge higher rates of premi- 
 um ; and it is inadmissible. Joyce v. Maine Ins. Co., xlv. 168. 
 
 42. Where the insanity of the defendant was relied upon to avoid a 
 sale of property, a physician who, a short time before the sale, had vis- 
 ited the defendant in consultation with his attending physician, was 
 not permitted to give in evidence the declarations made to him at that 
 time, by either the defendant's wife, physician, or other attendant, as to 
 his previous symptoms or condition. Seald v. Thing, xlv. 392. 
 
 43. Nor will such witness be permitted to give his opinion of the men- 
 tal condition of the defendant, at that time, based upon the representa- 
 tions thus made to him, in connection with the symptoms he discovered 
 by personal observation and examination. His opinion should be formed 
 entirely from his own observation and examination of his patient's symp- 
 toms and condition. Seald v. Thing, xlv. 392. 
 
 44. As a witness cannot be permitted to give his opinion as an expert, 
 until it appears by a preliminary examination that he is a person of skill 
 in the particular department or subject-matter in which his opinion is 
 desired ; so, too, it must appear that he has reliable information, or know- 
 ledge of the facts involved, and upon which his opinion is to be founded, 
 before he can testify as an expert. Heald v. Thing, xlv. 392. 
 
 45. An expert may give his opinion whether a signature is genuine or 
 simulated, upon examination thereof at the time of trial, though he is 
 unacquainted with the handwriting of the person whose signature it pur- 
 ports to be. Withee v. Rowe, xlv. 571. Woodman v. Dana, m. 9. 
 
 46. An expert only can be permitted to testify how a party " appeared,' 
 in respect to soundness or unsoundness of mind. Wyman v. Gould, 
 XLVii. 159. 
 
 47. "Where the plaintiff has introduced evidence to prove declarations 
 of the defendant unfavorable to the character of one of the witnesses 
 for the defense, as to truth and veracity, this is, in effect, an impeach- 
 ment of the witness's character ; and the defendant may be permitted 
 to testify that the character of the witness for truth and veracity is good. 
 Prentiss v. Roberts, xlix. 127. 
 
 48. The opinion of the cashier of a bank as to the consideration of 
 the note in suit, based upon the coincidence of figures made by a former 
 cashier upon the books of the bank, cannot be admitted in evidence. 
 Lime Rock Bank v. Hewett, l. 267. 
 
 49. Where a person attempted to impeach the character of a witness 
 
EVIDENCE. 199 
 
 for truth, and it appeared that the witness had lived for many years in a 
 certain town, the other party was allowed to inquire of witnesses intro- 
 duced to sustain his character, " what is his general character for truth 
 in that town," Hdd^ that the form of the question, in respect to reputa- 
 tion and locality, must depend on the testimony in regard to the posi- 
 tion and business of the witness. Woodman v. Churchill, li. 112. 
 
 50. An expert in handwriting, having testified that, several years since, 
 he carefully examined, and now has a recollection of three signatures 
 purporting to be the signatures of S., and acknowledged by him to be 
 genuine ; that he never saw S. write, and should not feel able to testify 
 to S.'s signature without a comparison with other writings ; may, after 
 examining another signature presented purporting to be the signature of 
 S., give his opinion whether or not the signature in question is in the 
 same handwriting as the three acknowledged to be genuine. 'Woodman 
 V. Dana, lii. 9. 
 
 51. No witness, except an expert, is competent to give an opinion 
 simply by comparison of hands by juxtaposition, and this is done by the 
 production of the standard in court. Woodman v. Dana, lii. 9. 
 
 52. Non-experts can only give opinions in cases where they have pre- 
 vious acquaintance or knowledge of the handwriting by which the gen- 
 uineness of the controverted specimen is to be tested, and in this case 
 the standard need not be present. Woodman v. Dana, lii. 9. 
 
 53. An expert need have no previous acquaintance or knowledge of 
 his standard to authorize him to express an opinion by comparison. 
 
 Woodman v. Dana, lu. 9. 
 
 54. A non-expert cannot express an opinion without such previous 
 acquaintance or knowledge. Woodm,an v. Dana, lii. 9. 
 
 55. It is not competent for a witness to give his opinion of the value 
 of a mill, after having testified, that he had resided many years, and 
 owned real estate in the vicinity of the mill ; that he had been assessor 
 of the town; that he was something of a judge of real estate in that vi- 
 cinity; that he had no special knowledge of the value of mills on that 
 stream ; and that he had never bought, sold, owned, or operated a mill. 
 Clark V. Rockland W. P Co., Ln. 68. 
 
 56. If the facts assumed in a hypothetical question, propounded to an 
 expert, are not themselves proved substantially, the answer to such 
 question is not to be considered by the jury. Sovey v. Chase, lii. 304. 
 
 57. A witness who has seen the horse in question and is acquainted 
 with the value of horses, may give his opinion of the difference in value 
 between the horse as represented and as actually existing. Haskell v. 
 Mitchell, Lin. 468. 
 
 58. The alleged maker of a promissory note defended a suit thereon 
 upon the ground that he could neither read nor write, and that the sig- 
 nature purporting to be his was not genuine. -The plaintiff testified that 
 the defendant wrote the signature in question by copying his name 
 from a copy written for him, by the plaintiff, on another piece of paper. 
 The plaintiff then called an expert in handwriting, and, after showing 
 him a letter identified as the handwriting of the plaintiff, asked him, — 
 "Do you not think it possible that a person unaccustomed to write, 
 might copy the signature in question by the aid of another signature be- 
 fore him, written on a separate sheet of paper by the person who wrote 
 
200 EVIDENCE. 
 
 the letter?" SeM, that the question is improper. Thayer \. Chesleyi 
 Lv. 393. 
 
 See Raileoad, 72. 
 
 III. ADMISSIBILITY OF PAROL EVIDENCE, TO AEFECT THE 
 CONSTEUCTION OF WRITINGS. 
 
 (a) GrBNBBAI.I.T. 
 
 (b) Evidence op the situation oh acts op the parties. 
 
 (C) TS CASE op receipts. 
 
 (d) To CONTEOIi OR explain RECORDS AND JUDGMENTS. 
 
 (a) G-enerally. 
 
 59. No evidence can be received to contradict the certificate of ac- 
 knowledgment for the purpose of making a deed ineffectual. Gfreene 
 V, Godfrey, xliv. 25. 
 
 60. Where the alleged acceptance of an order is ambiguous on its 
 face, and can be explained so as to ascertain the true intention of the 
 parties by parol testimony, it is properly admissible. Gallagher v. 
 Black, XLIV. 99. 
 
 61. The meaning of a written contract is to be ascertained from its 
 terms, and parol evidence is not admissible to vary, alter, or control the 
 meaning of an acceptance, when the language used is intelligible. Syl- 
 vester V. Staples, xliv. 496. 
 
 62. Parol evidence is not admissible to show that a promissory note 
 was intended as a receipt. City Bank v. Adams, xlv. 455. 
 
 63. The only effect of the usual clause in a deed acknowledging the 
 payment of the consideration, is to estop the grantor from alleging that 
 deed was executed without consideration. For every other purpose it 
 may be explained, varied, or contradicted by parol proof. If the consid- 
 eration has not been paid, of which the acknowledgment is only "prima 
 facie evidence, the grantor may recover it. If it has been overpaid by 
 any mistake of the parties, or through any fraud of the grantor, the 
 grantee may recover back the excess. Goodspeed v. Fuller, xlvi. 141. 
 AJbhott V. Marshall, xLvni. 44. 
 
 64. Statements of the scrivener of a deed, as to what the parties di- 
 rected him to do at the time of the drawing of the deed, are not admissi- 
 ble to show which of two lots of land were intended to be conveyed by 
 the deed. Madden v. Tucker, xlvl 367. 
 
 65. Parol evidence of an erroneous date, in a mortgage of personal 
 property, not under seal, is admissible. Partridge v. Swazey, xLyi. 
 414. 
 
 66. A. owned lot 4, and A. and B. owned lot 3, in common. A. and B. 
 divided lot 3, assigning A. the easterly half, adjoining lot 4. They oc- 
 cupied it accordingly, and maintained a division fence. Fifteen years 
 afterwards, the wife of A. obtained a divorce, and, by the written agree- 
 ment of all parties, a committee was appointed to assign dower to her in 
 lot 4, and an undivided half of lot 3. • They assigned her fifty acres " of 
 the south-westerly side of said lots," and she recorded the assignment. 
 She erected a house on the easterly half of lot 3, and lived there forty 
 
EVIDENCE. 
 
 201 
 
 years. Held, that there is no ambiguity in the terms of the assignment ; 
 and parol evidence is inadmissible to show that all the parties under- 
 stood the part assigned to be the easterly half of lot 3. Young v. 
 Gregory, xlvi. 475. 
 
 67. A mortgagee may prove by parol evidence, an additional agree- 
 ment, not disclosed by the mortgage, and not inconsistent with it. 
 Abbott V. Marshall, XLvni. 44. 
 
 68. Parol evidence is inadmissible to show that an indorsement on a 
 note, " pay to A. for account " of the payee, wag absolute. Leaery v. 
 JSlanchard, xLvin. 269. 
 
 69. A contract of guaranty, by which a debtor was, within a specified 
 time, to pay a certain execution, " or cancel it in some other satisfsctory 
 way," or deliver to the officer certain property, contains no such am- 
 biguity as will admit parol testimony to prove, that, at the time of mak- ■ 
 ing the contract, the officer, having the execution, consented to offset 
 against it an execution in favor of the debtor and against the creditor, if 
 one should be obtained and put in his hands within the time fixed for 
 the performance of the contract. Monroe v. Matthews, xlviii. 555. 
 
 70. Parol evidence is inadmissible to prove that a promissory note was 
 intended as a receipt for money put into the defendant's hands by the 
 payee, to be loaned for him. Shaw v. Shaie, l. 94. 
 
 71. It seems now well settled, that parol evidence of an oral agree- 
 ment, made at the time of making or indorsing a note, cannot be per- 
 mitted to vary or contradict the terms of the written contract. Shaw v. 
 Shaw, L. 94. See Bills, &c., 36, 37. 
 
 72. Where the wife has signed a deed of land with her husband, which 
 contained no words indicating her intention to release her right of dower, 
 an agreement to release such right cannot be proved by parol. Lothrop 
 V. Foster, li. 367. 
 
 73. A writing, " value received of," &c., " I promise to pay him or order, 
 seven hundred dollars without interest, to be allowed on settlement, no 
 interest to be reckoned," contains no such ambiguity as to authorize parol 
 testimonv to explain its terms or qualify its construction. Porter v. Por- 
 ter, LI. 376. 
 
 74. Parol testimony is not admissible to show that the note was given 
 for money received by way of advancement from the father to the son 
 (defendant), there being no ambiguity in the note itself that requires it. 
 Porter v. Porter, li. 376. 
 
 75. If the monument found upon the ground corresponds with that 
 mentioned in the deed in some particulars, and differs from it in others, 
 the whole description in the deed is not to be rejected ; and parol evi- 
 dence is admissible to show whether such monument was the one in- 
 tended. Abbott V. Abbott, ll 575. 
 
 76. Parol evidence is admissible to prove that a bond and deed of dif- 
 ferent dates were delivered at the same time,, and as, a part of the same 
 transaction. Brown, v. PColyoJce, liii. 9. 
 
 77. Parol evidence is, inadmissible to prove that an award, upon which 
 a judgment was rendered, was founded upon matters not presented by 
 the pleadings. tTones v. Perkins, liv. 393. 
 
202 EVIDENCE. 
 
 78. The parties exchanged horses, and agreed that if the horse which 
 the defendant let the plaintiff have did not recover of his lameness 
 within six months, defendant should pay plaintiff ten dollars. Subse- 
 quently the plaintiff brought an action against the defendant for deceit, 
 which was referred, and a judgment for ten dollars damages rendered 
 upon the award. The horse did not recover, and this suit was brought 
 to recover the boot-money. Bdd, that the defendant could not be allowed 
 to prove by one of the referees that their award was for the boot-money. 
 Jones V. Perkins, liv. 393. 
 
 79. Evidence that a deed, bearing date March 20, but acknowledged 
 and delivered April 25, of the same year, was thus dated for the purpose 
 of rendering the grantee liable for the taxes of that year, is inadmissible 
 in an action of covenant to recover the amount paid for taxes. Egery v. 
 
 Woodard, lvi. 45. 
 
 80. A parol reservation of growing crops, made either before or at the 
 time of making and delivery of a deed, cannot control the legal effect of 
 the deed ; and parol evidence, tending to show such a reservation, is in- 
 admissible to affect the force of the conveyance. Brown v. Thurston, 
 LVI. 126. 
 
 See Bills, &c., 139, 141, 142, 162. 
 Insueance, 30. 
 
 (b) Evidence of the situation or acts of the parties. 
 
 81. If the construction to be given to a deed is doubtful, the circum- 
 stances connected with its execution and the subsequent conduct of the 
 parties as to occupation under the deed, may be considered in determin- 
 ing what was understood by the parties. Bradford v. Cressey, xlv. 9, 
 Covel V. Hart lvi. 518. 
 
 82. In an action involving the conditions of a permit to cut logs on 
 land of the plaintiff, where the testimony of the parties to the permit is 
 conflicting, it is not competent to introduce evidence of the previous 
 course of business between the same parties, or of the conditions con- 
 tained in former permits. Prentiss v. Roberts, xlix. 127. 
 
 83. In an action to recover for stumpage for logs cut under a verbal 
 license from one tenant in common to his co-tenant, brought against the 
 assignee of the latter, the question at issue being whether a lien on the 
 lumber was reserved, accounts stated and rendered to each other by the 
 co-tenants are inadmissible, unless the plaintiff will consent to open the 
 whole question of the state of the accounts between the parties. Pren- 
 tiss V. Roberts, xlix. 127. 
 
 84. Where, in the trial of a writ of entry, the title of the tenant de- 
 pends upon a conveyance to him alleged by the plaintiff to be fraudulent 
 as to existing creditors, it appeared that the grantor of the tenant was 
 one of the two members of a firm which conveyed, at about the same 
 time he made the conveyance in controversy, all of their property, 
 whether owned by the firm or by the partners separately, to different 
 persons, — but principally to the father of one, and the son of the other. 
 Held, that while it was not competent for the plaintiff to prove the sub- 
 sequent declarations or the general acts of the grantor, he may the sub- 
 sequent disposition of the property thus conveyed by the firm, for then- 
 benefit, or for the benefit of the alleged fraudulent grantor, or that they 
 
EVIDENCE. 
 
 203 
 
 subsequently received the earnings or proceeds . thereof. Warren v. 
 Williams, lii. 343. 
 
 See Assignment, 8. 
 
 (g) In case of receipts. 
 
 85. A receipt, taken upon the settlement of an account, is open to the 
 proof and correction of errois ; but the specific errors, distinct and une- 
 quivocal, must be shown. Bobbins' Cordage Co. v. Brewer, xLVin. 481. 
 
 (d) To control or explain records and judgments. 
 
 86. By § 2, c. 263, of the Public Laws of 1856, the court is authorized 
 to receive evidence that no service of a citation of a poor debtor was 
 made upon the creditor, notwithstanding such evidence may contradict 
 the record of the magistrates ; but a citation, issued with a seal upon it 
 which had accidentally fallen off when served by reading it to the cred- 
 itor, is good, and not within the spirit or letter of the statute. Baldwin 
 V. Merrill, xliv. 55. 
 
 87. Parol evidence is inadmissible to show an error in the course of a 
 line in the return of a levy. Chadbourne v. Mason, xLVin. 389. 
 
 88. Evidence that a docket entry has been erased may be received as 
 the basis of an amendment of the record, but not to contradict it. Wil- 
 lard V. Whitney, xlix. 235. 
 
 89. The docket entries are regarded as the record of the court until the 
 record is extended, but they cannot be received to contradict the record 
 when once extended. Willard v. Whitney, xlix. 285. 
 
 90. On the trial of an indictment for perjury alleged to have been com- 
 mitted in an action before a justice of the peace (which had been de- 
 faulted on the return day, and the default taken off on the next day), it 
 appearing by the record of the justice that the action was defaulted on 
 the return day, and that he took off the default within twenty-four 
 hours thereafter, for good cause, parol evidence is admissible to show 
 that in fact the default was taken off on the day after the return day. 
 State V. Hall, xlix. 412. 
 
 91. If the grounds of a judgment appear by the record, they must be 
 proved by the record ; but if the record need not and does not exhibit 
 the grounds upon which the judgment proceeded, it may be shown by 
 parol that matters which might have been admissible under the pleadings 
 were presented and considered in the adjudication. Sturtevant v. Ban- 
 
 ■ dall, Liii. 149. Walker v. Chase, Lin. 258. 
 
 See BANKErPTCY, 6. 
 
 IT. PEESTJMPTIONS, AND PRIMA FACIE PEOOFS. 
 
 92. It is not necessary to show jurisdiction in the supreme judicial 
 court, for it will be presumed until the contrary appear. Stetson v. Go- 
 rinna, xliv. 29. Jay v. East lAvermore, lvi. 107. 
 
 93. Proof that a letter addressed to one of the parties was deposited 
 in the post-ofSce, and the postage paid, raises no legal presumption that 
 it came into the possession of the person to whom it was addressed, so as 
 
204 EVIDENCE. 
 
 to make secondary evidence of its contents admissible. Freeman v. 
 Morey, xlt. 50. - 
 
 94. If the president of an insurance company is empowered and re- 
 quired, by the by-laws, to adjust and pay all losses, authority to transfer 
 and dispose of the funds of the company for that purpose, including ne- 
 gotiable paper owned by them, may be presumed ; for the imposition of 
 the duty implies the grant of authority necessary to its performance. 
 Baker v. Cotter, xlv. 236. 
 
 95. If the consideration of a deed actually agTced upon has not been 
 paid, of which the acknowledgment is only prima facie evidence, the 
 grantor may recover it. Goodspeed v. Fuller, xlvi. 141. 
 
 96. The indorsee and holder of a negotiable note against a fraudulent 
 debtor has prima facie evidence of a j ust claim against the debtor. Ab- 
 bott V. Joy, XL VII. 177. 
 
 97. In an action against an officer for not safely keeping, goods at- 
 tached on a writ, theft is not presumptive evidence of a want of ordinary 
 care. Mills v. Gilbreth, xlvii. 320. 
 
 98. Where the evidence, as to the exercise of care, by the officer, is 
 evenly balanced, the presumption is that he has done his duty. 3Blls 
 V. Qilbreth, xlvii. 820. 
 
 99. The secretary of an insurance company is presumed to be the of- 
 ficial agent to carry into effect the votes and directions of those who 
 have the management of its affairs. Leary v. Blanchard, xlviii. 269. 
 
 100. If the record be silent as to the mode in which officers of a town 
 were elected, the presumption will be, without proof to the contrary, 
 that they were chosen in the manner required by law. Hathaway v. 
 Addison, xlviii. 440. 
 
 101. Where a grantee is in possession of any part of the granted 
 premises under a recorded deed, he is presumed to be in possession of 
 the whole, unless other possessions or facts show the contrary. Gard- 
 ner V. Gooch, xlviii. 487. Brachett v. Persons Unknown, liu. 228. 
 Brackett v. Persons Unknown, liii. 238. 
 
 102. A party who signs an instrument creating a liability, is ordinarily 
 presumed to know all its contents, if no fraud is practised upon hiin. 
 Meadfield v. Shaver, l. 36. 
 
 103. Where the right of redeeming a levy is in the husband, the wife, 
 in the absence of proof, is presumed to occupy the estate levied upon in 
 subordination to the legal title, and not adversely thereto. Allen v. 
 Hooper, l. 371. 
 
 104. The production of notes given to the insolvent debtor, and by 
 him indorsed in blank, isprima facie evidence of ownership. Metcalfv. 
 
 Yeaton, li. 198. 
 
 105. In case of a grant by deed, the law presumes the party intended 
 to convey something; but there is no presumption in case of a levy; 
 and the party must rely upon the return of the appraisers and the officer 
 to give him an estate not invalidated or rendered void by exceptions or 
 qualifications. Jewett v. Whitney, li. 233. 
 
 106. An absence of seven years or more from the established resi- 
 dence of a party must be proved before the presumption of his death 
 can be raised. Stinchfield v. Emerson, lii. 465.' 
 
EVIDENCE. 
 
 205 
 
 107. When certain persons assume, under the Public Laws of 1821, c. 
 4, § 3, to act as a proprietary, describe themselves as such, and keep a, 
 record, the legal presumption, after the lapse of thirty years and more, is 
 that they were the proprietors ; and the admission of evidence outside 
 of the record, that they were so in fact, affords no legal ground of com- 
 plaint. Crockett V. Persons UnJcnown, liii. 228. 
 
 108. A deed, appearing to have been duly and properly recorded, is 
 presumed to have been duly executed and delivered; and, to entitle the 
 party holding adversely to such deed to recover, he must overcome such 
 presumption by sufficient proof. Webster v. Calden, lv. 165. 
 
 109. When several sureties pay the debt of their principal, and there 
 is no evidence of a partnership or joint interest, or of payment from a 
 joint fund, the presumption of law is, that each paid his proportion of the 
 debt. Bunker v. Tufts, lv. 180. 
 
 See Bill, &c., 5, 36, 88. 
 cobpoeation, 51, 57. 
 Forcible Entry, &c., 13. 
 Insane Hospital, 78. 
 Insurance, 113. 
 Judgment, 34. 
 Mills, 41. 
 Pauper, 95. 
 
 V. BTJEDEN OP PEOOF. 
 
 110. In the absence of evidence as to when or how the plaintiff ob- 
 tained an order, where the acceptance would have been ineffectual in 
 the hands of the original payee, he must prove that he became the 
 owner at the date of the acceptance, and for a valuable consideration. 
 
 Gallagher v. Black, xliv. 99. 
 
 111. Where judgment had been rendered against a mortgager, and a 
 writ of possession issued, under which the mortgagee had been put in 
 possession of the premises; and, fitleen years afterwards, the mortgager 
 brings a bill in chancery, alleging that the amount, adjudged to be due 
 at the time of judgment, was paid before possession was taken, and 
 claiming to redeem, the burden of proof of payment will be upon him. 
 Furlong v. Randall, xlvi. 79. 
 
 112. In an action against an officer for not safely keeping goods at- 
 tached on a writ, instructions to the jury, that, where the officer has 
 taken the goods into his custody, and has not stated in his return on the 
 execution that they were taken from him without his fault, the burden 
 is on him to show that he exercised ordinary care in keeping them, and 
 he must satisfy the jury that they were lost without his fault, are not so 
 favorable to him as he has a right to demand. Mills v. Qilbreth, XLvn. 
 320. 
 
 113. The more reasonable rule in such case is, that, if the officer 
 proves the loss of the goods, and the attendant circumstances, the bur- 
 den of proof is then upon the creditor to show negligence. Mills v. 
 Gilhreth, xLvn. 320. 
 
 114. In an action against the maker of a written contract, which he 
 defends on the ground that the contract was without consideration, the 
 
206 EVIDENCE. 
 
 burden of proof is upon him, if, in the writing, there are words that im- 
 port a consideration. Quimby v. Morrill, xlvii. 470. 
 
 115. In an action brought by an employee of a corporation to recover 
 damages for a personal injury received while in their service, the burden 
 is on the plaintiff to show negligence on the part of the corporation. 
 JBeaulieu v. Portland Co., xlviii. 291. 
 
 116. When land and the timber on it are owned in common and un- 
 divided by two parties, and one has cut a part of the timber under an 
 alleged license, the burden is on him to show, not only that he had a 
 license, but that it was unconditional, and not limited by the reservation 
 of a lien on the lumber. Prentiss v. Roberts, xlix. 127. 
 
 117. Instructions to the jury, that, after he has proved that he had a 
 license to cut the timber, the burden is on the other party to show that 
 it was conditional, and a lien reserved, are erroneous. Prentiss v. Mob- 
 erts, XLIX. 127. 
 
 118. The burden of proof is upon a party alleging the payment of a 
 mortgage, although the .mortgagees have not been in possession for more 
 than twenty years after the notes secured thereby became due, ijEJ during 
 that time, the premises are in possession of a tenant for life under a su- 
 perior title. (Jrooher v. CrooJcer, xlix. 416. 
 
 119. In an action against an indorser of a negotiable promissory note, 
 the burden is upon the plaintiff to show that all the steps were taken, 
 necessary to hold the indorser. Magoun v. Walker, xlix. 419. 
 
 120. The burden of proof, that the notice given for drawing jurors, 
 was defective, is upon the one alleging it. State v. Clough, xlix. 573. 
 
 121. Where a person was collector of taxes for two successive years, 
 and the sureties on his official bond were not the same the second year 
 as the first, in a suit on one of the bonds for an alleged default, it is for ' 
 the defendants to show what part of the deficit belonged to each year. 
 Readfield v. Shaver, l. 36. 
 
 122. Since the act of 1847 (R. S., c. 61, § 1), authorizing a married 
 woman to hold property exempt from payment of her husband's debts, if 
 his creditor would impeach her title to any property conveyed to her, 
 the burden is on him to prove that it came to her, directly or indirectly, 
 from her husband, after coverture, and fraudulently as to creditors. Wins- 
 low V. Gilbreth, l. 90. 
 
 128. A bill of lading signed by the carrier, acknowledging the receipt 
 of the goods, " to be delivered in good order to A. at B.," is not conclu- 
 sive that the goods were in good condition when received by the carrier; 
 but the carrier may prove that the' goods were damaged before they 
 came into his possession, and the burden is on him. Tarbox v. Eastern 
 Steamboat Co., l. 839. 
 
 124. Where the burden is thrown upon one qf the parties by the state 
 of facts presented, it does not shift from one to the other as the weight 
 of evidence varies by the introduction of fresh testimony, but rests on 
 the same party on whom it was thrown at first, until the proof is such as 
 to present a new and distinct question. Tarbox v. Eastern Steamboat 
 Co., L. 339. 
 
 125. In a suit against a common carrier for hire, for loss or injury to 
 goods delivered to him to carry, the burden is not on the owner to show 
 affirmatively that the loss or damage was occasioned by neglect or the 
 
EVIDENCE. 
 
 207 
 
 want of diligence on the part of the carrier, as wonld be required in the 
 case of an ordinary bailee. Tarbox v. Eastern Steamboat Co., l. 339. 
 
 126. Where services are performed under a special contract, the party 
 claiming payment therefor must, as a general rule, prove substantial per- 
 formance or a waiver. Veazie v. JSangor, li. 509. 
 
 See Agency, 32. 
 Bailment, 15. 
 Bond, 17. 
 Insurance, 112, 114. 
 
 VI. EVIDENCE, AS APPLICABLE TO PAETICULAE SUBJECTS. 
 
 (a) Insanity. 
 
 (b) Pbatjd. 
 
 (o) Handwbiting. 
 
 (d) Judgments and eecokds. 
 
 (e) Ebcokds and coepobations. 
 
 (f ) Public becobds, documents, &c. 
 
 (a) Insanity. 
 
 127. Where the insanity of the defendant was relied upon to avoid a 
 sale of property, a physician, who, a short time before the sale, had vis- 
 ited the defendant in consultation with his attending physician, was 'not 
 permitted to give in evidence, the declaration made to him at that time 
 by either the defendant's wife, physician, or other attendant, as to his 
 previous symptoms or condition. Heald v. Thing, xlv. 392. 
 
 128. On the trial of an issue, whether the grantor in a deed was of 
 sound mind at the time of its execution, neither the judgment of the 
 court setting aside his will, nor the record of the appointment of a guar- 
 dian made nearly a year after the date of the deed, is admissible. Hov- 
 ey V. Chase, lii. 304. 
 
 129. A man may not have sufficient intelligence and understanding to 
 manage his affairs and transact business in a proper and prudent manner, 
 and yet may not be nan compos mentis. Hovey v. Chase, lii. 304. 
 
 130. The law fixes no particular standard of intelligence necessary to 
 be possessed by parties making a contract. Hovey v. Chase, lu. 304. 
 
 181. Legal competency in a party to contract is the possession of men- 
 tal capacity sufficient to transact business with intelligence and intelli- 
 gent understanding of what he is doing. Hovey v. Chase, lii. 304. Hov- 
 ey V. Hobson, Lv. 256. 
 
 See Insane Persons. 
 
 (b) Fraud. 
 
 132. In the trial of an action under E. S. of 1841, c. 148, § 49, proof 
 of fraudulent acts and declarations of the debtor before and after the 
 sale, though in the absence of the defendant, are admissible to contra- 
 dict evidence previously introduced by the opposing party. Abbott v. 
 Joy, XLVii. 177. 
 
208 EVIDENCE. 
 
 133. To prove that an alleged sale of a chattel is fraudulent, evidence 
 of a fraudulent sale of another chattel, at another time, in another juris- 
 diction, and to another party, is inadmissible. Staples v. Smith, xlviii. 
 470. 
 
 134. The acts of a debtor in securing the tranfer of the funds in a 
 bank to himself, and from himself to the defendant, together with his 
 written declarations accompanying such acts, are admissible on tlie ques- 
 tion of the fraudulent intent of such debtor, in an action on the case by 
 a creditor against the defendant for aiding such debtor in the fraudulent 
 transfer and concealment of his property. SkowJiegan Bank v. Cutler, 
 m. 509. 
 
 135. When the question at issue is whether a sale was made to defraud 
 creditors, evidence that the alleged fraudulent vender previously offered 
 to sell the property to other persons, is not admissible to disprove the 
 fi-aud. Tufts V. Bunker, lv. 178. 
 
 See Feaud. 
 
 Peobatb Court, 30. 
 
 (c) Handwriting. 
 
 186. In trover for chattels, the plaintiff offered in evidence a paper ma- 
 terial to the issue, purporting to be signed by the vender of the defend- 
 ant, and testified that it was signed by him in the plaintifTs presence. 
 The vender of the defendant, being called by him, testified that the sig- 
 nature was not made by him, and was not genuine. Being thereto 
 requested by the plaintiff, the witness wrote his name upon a piece of 
 paper, and the plaintiff offered the latter signature in evidence, to be com- 
 pared by the jury with the former. Held, that the evidence was admis- 
 sible. Chandler v. Le Barron, xlv. 534. 
 
 See Evidence, 44, 49, 50, 51, 52, 53, 57. 
 
 (d) Judgments and records. 
 
 137. The records of a court, whenever made up, are conclusive upon 
 all parties until altered or set aside by a court of competent jurisdiction. 
 
 WiUard v. Whitney, xlix. 235. 
 
 138. The statements contained in them must be taken as true, and can- 
 not be contradicted or explained by evidence ab extra. WiUard v. 
 
 Whitney, xlix. 235. 
 
 139. But if any errors are shown to exist in any record, they may be 
 corrected by the court. WiUard v. Whitney, xlix. 235. 
 
 140. The docket entries are regarded as the record of the court until 
 the record is extended, but they cannot be received to contradict the 
 record when once extended. WiUard v. Whitney, xlix. 235. Jay v. 
 East Livermore, lvi. 107. 
 
 141. To sustain an action upon a recognizance taken to prosecute an 
 appeal from a judgment of a justice's court, a final judgment must be 
 proved ; and where the appellant had neglected to furnish copies of the 
 papers necessary to make up an extended record, the clerk's docket, 
 showing an entry of the amount of debt and costs recorded, may be ad- 
 mitted as a record of the judgment, although the time has elapsedj within 
 
EVIDENCE. 
 
 209 
 
 which the papers can be filed, to authorize the clerk to extend and com- 
 plete the record, as of the term when judgment was recorded. Leathers 
 V. Cooley, xlix. 337. 
 
 142. A certificate under the hand of the clerk and the seal of this 
 court, stating substantially, that at a term named, " a divorce from the 
 bonds of matrimony was duly decreed between " certain persons named, 
 " as will more fully appear by the record," &c., is not admissible evidence 
 of any fact therein stated. Jay v. East Livermore, lvi. 107. 
 
 143. Ifeither is a paper signed and sealed in like manner, and certified 
 to be a " true extract from the record." Jay Y.East Livermore, lvi. 107. 
 
 144. In an action between towns for the recovery of pauper supplies, 
 wherein an alleged divorce of one of the paupers from his former wife 
 becomes a material question at issue, the judgment of demand rendered 
 by this court twelve years previously, but shown not to have been ex- 
 tended upon the records, may be proved by a certified copy of the docket 
 entry of the libel and the clerk's memoranda of the action of the court 
 thereon. Jay v. East Livermore, lvi. 107. 
 
 145. What evidence is sufficient in such case to legally establish such 
 judgment. Jay v. East Livermore, lvi. 107. 
 
 146. In such case, it is not necessary to show, by direct proof, that the 
 allegations in the libel brought the case within the jurisdiction of this 
 court. Jay v. East Livermore, lvi. 107. 
 
 147. Nor to show that the libellee was defaulted. Jay v. East Liv- 
 ermore, LVI. 107. 
 
 148. From the docket entry " notice proved," this court will assume 
 that legal notice was ordered and given. Jay v. East Livermore, 
 LVI. 107. 
 
 149. The identity of the parties to the libel may be proved by parol 
 evidence. Jay v. East Livermore, lvi. 107. 
 
 (e) Records and corporations. 
 
 150. The identity of a book, as the records of a town, may be estab- 
 lished, to make it admissible in evidence, by other witnesses than the offi- 
 cers of the town. Hathaway v. Addison, xlviii. 440. 
 
 151. The stock ledger of a bank may be identified by the cashier, and 
 it need not bear the attestation of any officer of the bank. Skowhegan 
 Bank v. Cutler, lii. 509. 
 
 152. Parol evidence is admissible to identify the subject-matter of a 
 recorded vote of a corporation. Pope v. Machias W. P. Co., lil 535. 
 
 See PEOPErETOES of land, 8-11. 
 
 ( f ) Public records, documents, <bc. 
 
 153. "Where the boundaries of a tract of land depend upon the loca- 
 tion of a public lot, the record of such location, made by the commis- 
 sioners appointed by the court, is proper evidence to show such location. 
 GiUerson v. Small, xlv. 17. 
 
 154. Either the records of inferior courts, or duly authenticated cop- 
 
 14 
 
210 EVIDENCE. 
 
 ies thereof, or the oi-iginal papers on which they are printed, are compe- 
 tent evidence. State v. Bartlett, xlvii. 396. 
 
 155. Upon trial on a libel against intoxicating liquors seized as being 
 kept for illegfll sale, the original complaint and warrant are admissible in 
 evidence. /State v. JBartlett, xlvii. 396. 
 
 156. Neither the writ, judgment, or docket entries, in a former action 
 of the holder of a second permit against the holder of the first permit to 
 cut timber for a specified period on a certain tract of land, is proper evi- 
 dence in a suit between the latter and the party who granted the per- 
 mits. /Small V. Gilman, xlviii. 506. 
 
 157. In a suit on a sheriff's bond, the plaintiff may show that the offi- 
 cer took the property in his official capacity by evidence aliunde the 
 record of the former suit. Dane v. Gilinore, xlix. 173. 
 
 Vn. ADMISSIONS, DECLARATIONS, AND CONFESSIONS. 
 
 (a) Res gbstje. 
 
 (b) Admissions and dtSolarations op paeties. 
 
 (c) Deolakations op peivies and agents. 
 
 (d) Declaeations op thied pbesons. 
 
 (a) Hes ffestce. 
 
 158. There must be proof of agency before the declarations of the 
 agent are admissible, and then only such as are strictly part of the res 
 gestae. Haeeltine v. Miller, xliv. 177. 
 
 159. To repel the inference of fraud in destroying letters, which, if ex- 
 isting, would be admissible in evidence, a witness, who was present and 
 advised their destruction, may be allowed to state his declarations made 
 to the party at the time ; such declarations being admissible as a part of 
 the res gestm, and as explanatory of the motive which influenced the 
 party to destroy them. Tobin v. Shaw, xlv. 331. 
 
 160. Declarations made by a pauper whilst temporarily in a town away 
 from the place of his domicil, indicating an intention to remove to and 
 reside in still another town, not having been carried into execution, are 
 inadmissible in evidence. Bangor v. Brewer, xlvii. 97. 
 
 161. In the trial of an action in which it is alleged that the defendant, 
 after giving the plaintiff a permit to cut timber for a specified time on 
 all of a certain tract of land, except a part which he had previously en- 
 gaged to a third party, and which part the defendant, at the time of mak- 
 ing the contract, described and defined ; but that the defendant, after- 
 wards, granted a permit to the third party covering a much larger terri- 
 tory than he had represented to the plaintiff" as engaged, — a letter to 
 the plaintiff" from his agent to whom the alleged representations were 
 made by the defendant, though written immediately* after the transac- 
 tion, was no part of the res gestcB, and was properly excluded. Such a 
 letter, though relating to things past, and about which the agent might 
 he called as a witness, was but hearsay. SmaU v. Gilman, XLVin. 506. 
 
 162. The declarations of a person, in connection with his departure 
 from a place, are not admissible in his favor, unless accompanied by some 
 act of starting or preparation to start. Church v. Moweli, xlix. 367, 
 
EVIDENCE. 
 
 211 
 
 163. Where, in the trial of a writ of entry, the validity of a deed un- 
 der which the defendant holds is attacked on the ground of the mental 
 incapacity of the grantor at the time of its execution, a letter, dated a 
 few days before such deed, written by a relative to the former guardian 
 of such grantor, advising the sale of the land described in such deed, and 
 the mode of securing payment to the grantor's wife, is no part of the rea 
 gestae, and is not admissible as an ancient contemporaneous document. 
 Sovey V. Hobson, lv. 256. 
 
 (b) Admissions and declarations of parties. 
 
 164. The declarations of a party reduced to a deposition w perpeiwaw 
 are inadmissible against the deponent. Dwinel v. Godfrey, xliv. 65. 
 
 165. The previous confessions of one on trial for adultery, that he had 
 a wife, and that the woman with whom he lived was his wife, are admis- 
 sible as evidence of marriage. State v. lAbbey, xliv. 469. 
 
 166. The affidavit of a nominal plaintiff, made after an assignment of 
 the cause of action, is not admissible as evidence in favor of the defend- 
 ant. Butler v. Millett, xlvii. 492. 
 
 167. A single admission by oneof two defendants to the plaintiff, that 
 the former was a copartner of the other defendant, with proof that the 
 plaintiff gave the credit upon it, will render the person thus making such 
 admission liable, without any evidence of his general conduct. Wood v. 
 Pennell, li. 52. 
 
 168. On the trial of an indictment for murder, the prisoner's testimony 
 before the coroner's inquest upon the body of the person alleged to have 
 been murdered, given without objection by him, before his arrest, though 
 after he had been charged with the murdei-, and after being cautioned 
 that he was not obliged to testify to anything which might criminate 
 himself, and not purporting to be a confession, is admissible as evidence 
 against him. State v. Oihnan, li. 206. 
 
 169. When, in assumpsit against the defendants as surviving partners 
 of a firm alleged to have consisted of themselves and a person deceased, 
 the partnership is in issue, the declarations of such deceased person, made 
 in the absence of the defendants, and not communicated to either of 
 them, are not admissible against the seasonable objections of the defend- 
 ants with the instruction that they were not evidence again?t the de- 
 fendants, but were admissible to prove that the deceased was a partner; 
 and that such proof was necessary. McLellan v. Pennell, Ln. 402. 
 
 170. In assumpsit for the price of logs sold, a letter written, long after 
 the sale, by the defendant to the plaintiffs, complaining of the quality of 
 the logs, is not admissible on the part of the defense. Berry v. Reed, 
 Lin. 487. 
 
 171. Where, as tbe consideration of a conveyance of land by the plain- 
 tiff to the defendant, the former relies upon the parol promise of the lat- 
 ter to convey certain other land to him, and then refuses to execute such 
 promise, the plaintiff may prove the special agreement, not as a basis of 
 recovery, but as a declaration bearing upon the question of value. Bas- 
 sett V. Bassett, lv. 127. 
 
 See Bills, &c., 142. 
 Damages, 8. 
 Insueastce 105. 
 
212 EVIDENCE. 
 
 (c) Declarations of privies and agents. 
 
 172. A letter from an agent is not admissible to prove a contract made 
 by him with a third person, in behalf of his principal. Sargent v. Word- 
 ing, XL VI. 464. 
 
 173. On the trial of an action under R S. of 1841, c. 148, § 49, proof of 
 fraudulent acts and declarations of the debtor before and after the sale, 
 though in the absence of the defendant, are admissible to contradict evi- 
 dence previously introduced by the opposing party. Abbott v. Joy, XLvn. 
 177. 
 
 174. The declarations of an agent, made, not at the time of, or accom- 
 panying any act done by the principal, are not admissible against the 
 principal. Craig y. Grilbreth, xlyij. 4:16. JIazeltiner. Miller, xhiy. 111. 
 
 175. Where the title to a chattel depends upon whether a prior sale 
 by one of the parties to a third person was absolute or conditional, the 
 declarations of that person, made against his own interest, and before he 
 disposed of his title, are admissible to show the character of the sale. 
 £eedy v. Macomber, xlvii. 451. 
 
 176. A mortgager of chattels has such an interest in the mortgaged 
 property, that his declarations, disparaging his title, may be proved by 
 one who claims title against him and his vendee. J3eedy v. Macomber, 
 XLVII. 451. 
 
 177. Declarations of the maker of a note given for an old one, at the 
 time of making the note, are not admissible to affect his legal liability 
 on the note ; but are admissible to show whether the new note is entire- 
 ly a new contract, or an extension of the old one. Natter v. Stover, 
 XLvm. 163. 
 
 178. Proof of the declarations of an agent after his agency has ceased, 
 if inconsistent with his present testimony, may be admitted to affect his 
 credibility, but is not to be regarded as evidence of facts to influence the 
 jury in determining the points at issue in an action brought by a third 
 party against the principal. Holmes v. Morse, l. 102. 
 
 179. The declarations of a former tenant in possession, limiting or qual- 
 ifying his right arising from possession, are admissible, when he, with the 
 knowledge of the disseisor, acts as agent of the disseisee, notwithstand- 
 ing he may have executed a contract for the conveyance of the premises 
 to a subsequent tenant under whom the defendant claims ; and such dec- 
 larations cannot be considered contradictory to the contract itself. Pea- 
 body V. Hewett, lii. 38. 
 
 180. Where, by the by-laws of a mutual insurance company, it is 
 made the duty of the secretary to keep a record of the doings of the di- 
 rectors and of the company, as well as to receive notice of a loss ; his 
 letters addressed to the assured, so far as they admit a notice of the loss, 
 or communicate the doings of the directors thereon, are admissible in an 
 action upon the policy. Lewis v. Mon. Mut. Fire Ins. Co., lh. 492. 
 
 181. Declarations of the president of a bank, in relation to past trans- 
 actions, are not admissible in evidence, in an action by the bank. Lime 
 Mock Bank v. Sewett, lii. 531. 
 
 182. In an action of replevin for a colt, brought by an executor, the 
 plaintiff will not be permitted to prove the declarations of his testator, 
 made while the colt remained on his premises, with his other stock, tend- 
 
EVIDENCE. 
 
 213 
 
 ing to show that he owned the colt, to rebut testimony offered by the 
 defendant, tending to show a previous gift by the testator to his son 
 who lived with him and of whom defendant had purchased the colt. 
 Holmes V. iSawtelle, Lin. 179. 
 See Bills, &c., 158. 
 
 (a) Declarations of third persons. 
 
 183. The owner of a tract of timber land gave a written permit to A. 
 to cut timber thereon, according to a verbal agreement previously made ; 
 but, before the execution of the permit, he gave to B. a permit to cut 
 the timber on the tract, excepting the part engaged to A. In an action 
 by A. against B. and others operating with him, for cutting timber, 
 which A. alleged to be embraced in his permit ; Seld, that parol testi- 
 mony was admissible to prove the permit was written according to the 
 verbal agreement previously made with the owner ; and that the state- 
 ments of the proprietor, made to the agent of B. when the permit was 
 made to B., of the extent of land engaged to A., were inadmissible to af- 
 fect the rights of A. Gillerson v. /Small, xlv. 17. 
 
 184. Declarations made by a pauper whilst temporarily in a town 
 away from the place of his domicil, indicating an intention to remove 
 and reside in still another town, not having been carried into execution, 
 are inadmissible. Hangar v. Brewer, XLvn. 97. 
 
 185. When a deed, as one of the links in a chain of title, is sought to 
 be impeached on the ground that it is a forgery, the declarations of the 
 grantee, who is neither a witness in, nor a party to the suit, made long 
 after its execution, are inadmissible. Hatch v. Hates, liv. 136. 
 
 186. The naked declarations of the husband, as to the ownership of 
 personal property claimed by the wife, are inadmissible. Hanson v. 
 Millett, Lv. 184. 
 
 187. In the trial of an action for breach of promise of marriage, the 
 plaintiff's testimony, as to what declarations the defendant's mother 
 made to the plaintiff, in the absence of the defendant, and not communi- 
 cated to him, is not admissible, either as tending to prove the alleged 
 promise on the part of the defendant or that on the part of the plaintiff. 
 Lawrence v. Cook, lvi. 187. 
 
 See EviDEifCE, 125. 
 
 Vin. WEIGHT, SUFFICIENCY, AND CONCLUSIVENESS OF EVI- 
 DENCE ; FOKMEE JUDGMENT. 
 
 188. If, in a suit upon a poor debtor's bond, the damages are reduced 
 to the sum of five dollars, and the judgment rendered thereon for that 
 sum, with costs, is paid, the original judgment is thereby paid and dis- 
 charged to the amount of five dollars and no more. Bartlett v. Sawyer. 
 XLvi. 317. 
 
 189. But the fact, that the word " paid " is evidence upon the execu- 
 tion issued on such judgment, without any evidence that it was done by 
 the plaintiff or by any one acting for him, is not sufficient evidence of 
 such payment. Bartlett v. Sawyer, xlvi. 817. • 
 
214 EVIDENCE. 
 
 190. In civil cases, where a criminal act is so set out in the pleadings 
 as to raise that distinct issue before the jury, the crime charged must b^ 
 proved beyond reasonable doubt, before the plaintiff is entitled to a ver- 
 dict; but, where no such issue is raised by the pleadings, the jury may 
 decide upon the preponderance of evidence. Sinclair v. Jackson, xlvii. 
 102. See Evidence, 196 and note. 
 
 191. The records of a court, when once made up, are conclusive upon 
 all parties until altered or set aside by a court of competent jurisdiction. 
 
 WiUard V. Whitney, xlix. 235. 
 
 192. In an action against an officer for not keeping property attached 
 by him, the value of the property attached, as stated in the officer's re- 
 turn, and in a receipt taken for it, in the absence of contradictory proof, 
 may be taken as the true value of the property for which the officer is 
 liable. Willard v. Whitney, xlix. 235. 
 
 193. Evidence that individual members of the council voted in favor 
 of the street, because a party interested had tendered a bond that he 
 would pay the costs and damages, would be insufficient to support ap 
 action of trespass against the street commissioner. Gay v. Bradstreet, 
 XLIX. 580. 
 
 194. Acceptance or voluntary use of the subject-matter of a contract 
 is evidence of a performance, or a waiver, though not conclusive. Feo- 
 zie V. Sangor, li. 509. 
 
 195. In the trial of an action of ejectment, where the plaintiff's title 
 depended upon the levy of an execution in favor of the plaintiff against 
 the defendant's grantor, made subsequent to the conveyance, Held', that 
 all testimony tending to show that the note constituting the foundation 
 of the judgment satisfied by the levy, or the amount of costs in said 
 judgment, is inadmissible. Sidensparker v. Sidensparker, lii. 481. 
 
 196. If the plaintiff allege that the defendant, "intending to injure 
 the plaintiff, carried and set fire to the brush in the defendant's close, 
 aforesaid, which . . . being carelessly managed by the defendant, spread 
 and caught the wood in the plaintiff's close," &c., Held, that the allega- 
 tion of "intent" must be proved beyond reasonable doubt.* I'aulv. 
 Currier, liii. 526. 
 
 197. Evidence that three executions upon the judgment in suit were 
 returned in no part satisfied, — that the debtor, upon demand of payment, 
 replied he had uo property and could not make payment ; that, at about 
 the time of the rendition of judgment, he put his property, real and per- 
 sonal, out of his hands, and claimed not to be the owner of any property 
 since, and his continued reputation of insolvency is sufficient to repel 
 the presumption of payment, arising from a lapse of more than twenty 
 years. Knight v. Macomber, lv. 132. 
 
 198. What is sufficient evidence that land was conveyed by a deed 
 never recorded, and subsequently lost. Beal v. Gordon, lv. 482. 
 
 See Action, 35. 
 
 USUET, 9. 
 
 *Paul V. Currier, liii. 526, and Thayer v. Boyle, xxx. 475, have been virtually over- 
 ruled by Knowles v. Scribner, announued since the preparation of this work, and to be 
 published in Vol. Lvri. The reporter's abstract, in the last-named case, is: 
 
 "In the trial of civil causes, the court will not first deteimine whether the facts 
 stated in the plaintiff's declaration constitute a criminal offense, and then require of 
 the plaintiff more or less evidence according to the conclusion reached." 
 
EVIDENCE. 
 
 215 
 
 IX. OTHEB PRINCIPLES. 
 
 199. When, to prove his title, the plaintiff introduced a mortgage 
 from F. to himself, and the defendant replied that he obtained no title, 
 and consequently no constructive possession by that mortgage, because 
 F. had none at the time, having previously devested himself of the title 
 to the property by mortgage to B., the latter mortgage is admissible as 
 tending to show that fact. Hoioe v. Farrar, xliv. 233. 
 
 200. In an action for breach of promise to marry the plaintiff, her anx- 
 iety of mind, if produced by the defentiant's violation of his promise, is 
 an element to be considered in the estimation of damages; and it will 
 not be deemed improper that a witness was permitted to testify as to the 
 mental difference he observed in the plaintiff, after the defendant had 
 ceased to visit her. Tobin v. Shaw, xlv. 331. 
 
 201. A compound question propounded to a witness, one part being ad- 
 missible, and the remainder inadmissible, may be rightfully excluded as 
 a whole. Wyman v. Gould, xlvii. 159. 
 
 202. The testimony of the officer who served and libelled liquors, as to 
 their identity, is unobjectionable. State v. Bartlett, xlvii. 396. 
 
 203. The defendant, being called by his own counsel as a witness, and 
 having testified in the case, the o]iposite party, on cross-examination, 
 was allowed to examine him as to his intentions in signing the written 
 contract in controversy. Quimby v. Morrill, xlvii. 470. 
 
 204. The authority of an agent of a corporation to indorse a note may 
 be shown by other evidence than the by-laws. Brown v. Bonndl, 
 XLix. 421. 
 
 205. In an action brought in the name of a husband and wife, the de- 
 fendant will not be allowed, under the general issue and specifications of 
 defense, to introduce evidence to show that the plaintifis were not law- 
 fully married. Winslow v. Qilbreth, xlix. 578. 
 
 206. In an action against a receipter, the party, whose goods were 
 attached, having testified for the receipter, that they were of less value 
 than the amount of the judgment, the plaintiff, on cross-examination, was 
 permitted to interrogate the witness if subsequent attachments of the 
 goods were not made, by his own procurement, in favor of certain other 
 creditors whom he desired to secure. Thompson v. Smiley, l. 67. 
 
 207. In an action by a bank against the maker of a negotiable note, 
 evidence is not inadmissible to prove, that the note was given by him, 
 with the express understanding with the officers of the bank, that it 
 should be used only for exhibition to the bank commissioners to increase 
 the apparent assets of the bank, and was to be used for no other purpose. 
 Ziime Bock Bank v. JSewett, l. 267. 
 
 208. And this may be shown by the maker himself in a suit by the 
 bank, he being a competent witness to prove the facts. Bime Bock 
 Bank V. Hewett, l. 267. 
 
 209. The opinion of the cashier as to the consideration of the note, 
 based upon the coincidence of figures made by a former cashier upon the 
 books of the bank, cannot be admitted in evidence. Lime Bock Bank 
 V. JSewett, L. 267. 
 
 210. A. had a mill on C. stream. B. built a mill below, on M. stream 
 into which C. stream flows, and, to secure a supply of water, erected a 
 
216 EVIDENCE. 
 
 reservoir-dam on C. stream above A.'s mill. In an action by A. to recov- 
 er damages of B. for detention of water from his mill, evidence as to how 
 the reservoir-dam affected the operation of the mills below A.'s, or wheth- 
 er, by reason, in whole or in part, of the erection of said dam, the mills 
 below were enabled to run a longer part of the year than before the dam 
 was erected, is not admissible. Woodbury v. Willis, l. 403. 
 
 211. Where an assignment of a mortgage was taken by one party, 
 when another party paid the consideration of the assignment, whereby 
 an implied trust resulted in favor of the latter, parol proof to show the 
 payment, and by whom made, is admissible in a suit at law, notwith- 
 standing the statute of frauds. Kdley v. Hill, l. 470. 
 
 212. Where the issue to be tried is, whether a sale of certain goods 
 was made to defraud creditors, and the vender is a witness to disprove any 
 fraudulent intent, he may be asked, on cross-examination, if, on the same 
 day, he made a conveyance of other property, to a third person (a rela- 
 tive), although the instrument of conveyance be not produced ; as such 
 inquiry relates to a fact collateral to the main issue, and is admissible on 
 the question of intention. Phinney v. Holt, l. 570. 
 
 213. The deposition of a person, taken while he is under the sentence 
 of death, having been convicted of murder, is made legal testimony by 
 c. 53 of the Public Laws of 1861, which provides that " no person shall 
 be incompetent to testify in consequence of having been convicted of 
 any criminal offense." Woodman v. Churchill, li. 112. 
 
 214. When there has been no intentional departure from the contract 
 declared on, or failure to perform it, but the party has acted in good 
 faith, endeavoring to fulfill it according to its terms, he may recover, in 
 case of failure, what his services are worth, less the damage caused by 
 such failure ; but proof of an intention liona fide to perform the contract 
 fully is indispensable. Veazie v. Bangor, li. 509. 
 
 215. It is no objection that only a few, and not all, of the letters com- 
 prising a correspondence between the parties, are offered in evidence. 
 No. Berwick Co. v. New England F. & M. Ins. Co., lii. 336. 
 
 216. In the trial of an action of ejectment, where the plaintiff's title 
 depended upon the levy of an execution in favor of the plaintiff against 
 the defendant's grantor, made subsequent to the conveyance, Hdd, that 
 all deeds of other land, in nowise connected with the demanded prem- 
 ises, given by other parties to the execution debtor, and by him to the 
 defendant, were inadmissible. Sidensparher v. Sidensparker, lii. 481. 
 
 117. The testimony of a deceased witness, on a former trial of the 
 same action, may be given in evidence, if the substance of it can be 
 proved, although the exact language of the witness cannot be. lAme 
 Bock Bank v. Hewett, lii. 531. 
 
 218. If a witness can give the substance of a conversation in relation 
 to the matter in issue, his testimony is not to be excluded because he 
 cannot give all the conversation which took place at the same time, in 
 relation to other matters. Pope v. Machias W. P. Co., lil 535. 
 
 219. In an action by an administrator of a deceased party, against the 
 maker of a note, the defendant 'will not be permitted to testify that he 
 paid the plaintiff's intestate the contents of the note before the latter's 
 death. Farnum v. Virgin, lii. 576. 
 
 220. Where an attorney entered his general appearance. May term, 1858, 
 for several defendants, some of whom were not residents in this State, and 
 
EXCEPTIONS. 
 
 21T 
 
 at the following October term, on written motion, he was permitted to 
 enter upon the docket that he limited his appearance so as not to embrace 
 the non-residents, alleging that he was never authorized to appear for 
 them, but such entry not to be construed as an admission of the fact that 
 his general appearance was unauthorized ; and, at the May term, 1862, 
 he had leave to withdraw and did withdraw; Hdd^ that testimony of- 
 fered at the time of withdrawal for the purpose of showing his unau- 
 thorized appearance was inadmissible. Simmons v. Jacobs, lii. 147. 
 
 221. When the identity of the prisoner is a material question, and a 
 witness for the government has testified to an acquaintance with him, 
 the witness may be asked where it was, and what was his own business. 
 State V. Jiartlett, lv. 200. 
 
 EXCEPTIONS. 
 
 I. IN WHAT CASES EXCEPTIONS LIE, AND WHAT AEE GROUNDS 
 OF EXCEPTIONS. 
 
 II. IN OTHER RESPECTS. 
 
 I. IN WHAT CASES EXCEPTIONS LIB, AND WHAT ARE GROUNDS 
 OF EXCEPTIONS. 
 
 1. A case, on demurrer and joinder, cannot legally come before the 
 full court on report ; but must be presented on exceptions, according to 
 R. S., c. 82, § 19. Stevens v. Webster, xlt. 615. 
 
 2. In an action against an officer for not retaining property attached, 
 to be sold on the execution, an amendment adding a count for not re- 
 turning the execution, embraces a new cause of action, and, if allowed, 
 exceptions will lie. Annis v. Gilmore, xltii. 152. 
 
 3. In an action against an officer for not safely keeping goods at- 
 tached, instructions that where the officer has taken the goods into his 
 custody, and has not stated in his return on the execution that they 
 were taken from him without his fault, the burden is on him to show 
 that he exercised ordinary care in keeping them, and he must satisfy the 
 jury that they were lost without his fault, — are not so favorable as he has 
 a right to demand. Mills v. Gilbreth, xltii. 320. 
 
 4. In matters of contempt, exceptions may be taken on the question 
 of jurisdiction, where it is distinctly raised and adjudicated upon as mat- 
 ter of law. And. & Ken. B. B. Go. v. And. B. B. Co., xlix. 392. 
 
 n. IN OTHER RESPECTS. 
 
 5. No exceptions lie to the refusal of the presiding judge at nisi 
 prius, to grant a review. York & Gumh. B. B. Go. v. Glark, xlv. 161. 
 Scruton v. Moulton, xlt. 417. 
 
218 EXCEPTIONS. 
 
 6. Wor unless tjiere is a direction, opinion, or judgment given in matter 
 of law. Scruton v. Moulton, xlv. 417. 
 
 7. Where a party excepts to the admission of certain testimony given 
 at the trial of an action, and such testimony was admissible in the case, 
 for any purpose, the exceptions will not be sustained, unless it affima- 
 tively appear by the bill of exceptions, that the testimony was admitted 
 for an unauthorized purpose. JDennen v. JlaskeU, xlv. 430. 
 
 8. In a case, within the purview of R. S. of 1841, c. 121, § 9, concern- 
 ing partition of real estate, whether the person moving for leave to ap- 
 pear and defend should be admitted, is a matter of discretion ; and its 
 exercise by a judge at nisi prius, will not be revised on exceptions. 
 Huntress v. Tiney, xlvi. 83. 
 
 9. In trover against several defendants, a refusal to instruct the jury 
 that they are authorized (if they so find) to return a verdict against one 
 of them, and in favor of the others, is erroneous; but exceptions, for that 
 cause, will not be sustained, where the jury found specially that there 
 was no conversion by either of the defendants ; as the instruction, had 
 it been given, could have been of no benefit to the plaintifi". Powers v. 
 Sawyer, xlvi. 160. 
 
 10. A party contesting the legality of a marriage, because of the al- 
 leged insanity of the husband when it was consummated, has no cause 
 for exception to the instruction that the same degree of mind sufficient 
 to enable him to enter into a valid contract, or to make a valid deed or 
 will, would be sufficient to enable him to contract matrimony. Atkin- 
 son v. Medford, xlvl 510. 
 
 11. The allowing of an amendment to specifications of defense by a 
 judge at nisi prius, is not subject to exception. Moor v. Shaw, XLvn. 
 88. 
 
 12. Exceptions do not lie to the refusal of the presiding judge to ex- 
 clude an answer in a deposition, made to a leading question put in cross- 
 examination ; and if the question had been put in direct examination, it 
 would hardly justify setting aside a verdict. Bliss v. Shuman, xlvil 
 248. 
 
 13. Exceptions to the refusal of the presiding judge to instruct the 
 jury in a criminal case, that the respondents cannot be convicted upon a 
 certain count in the indictment, in consequence of the omission therein 
 of their addition and residence, will be overruled, if it does not appear 
 that the respondents were prejudiced by that omission. State v. May' 
 berry, xlviii. 218. 
 
 14. The refusal of a presiding judge to gi-ant delay in a trial, in order 
 that the defendant may obtain a record of the conviction of a witness of 
 an infamous crime and thus show the witness' incompetency, is not open 
 to exception, State v. Damery, xlviii. 327. 
 
 15. Where the admission of testimony is not objected to at the trial, 
 an objection comes too late, when made at the argument upon exceptions 
 to the instructions of the presiding judge. Gardner v. Gooch, xlvhl 
 
 487. 
 
 16. Exceptions cannot be sustained because the presiding judge omit- 
 ted to give a particular instruction which was not requested. Gardner 
 V. Gooch, XLVIII. 487. 
 
 17. If objections filed and prosecuted to the acceptance of the report of 
 
EXCEPTIONS. 
 
 219 
 
 a referee, are overrule(J at nisi prius, as insufficient to prevent the accep- 
 tance of the report, even though the allegations should be proved, and 
 exceptions are taken to this ruling, it cannot be urged that no evidence 
 ■was offered to prove the alleged facts. Black v. HicJcey, xlviii. 545. 
 
 18. When a case is referred to the presiding judge, with the right to 
 except in matters of law reserved, no exceptions lie to his finding of any 
 matter of fact. Treat v. Gilmore, xlix. 34. Curtis v. Dowries, tvi. 24. 
 McCarthy v. Mansfield, lti. 538. Berry v. Johnson, Lin. 401. Keen 
 V. Jordan, liii. 144. 
 
 19. The statement by the presiding judge,- daring the progress of a 
 trial, of a proposition, as a rule of law in relation to the admissibility of 
 evidence, though erroneous, is no ground for exception, unless it appears 
 that the excepting party was prejudiced by it. Church v. Rowell, xlix. 
 367. 
 
 20. It gives the prisoner, on his trial for larcency, no ground for excep- 
 tion, that the attorney for the State was allowed, against objection, to 
 state in his argument, or, that the presiding judge instructed the jury, 
 that it was competent for the prisoner to avail himself ot his former good 
 character, if it existed, by proof of the fact; and, if he offered no such 
 testimony, it was not competent for the government to show it was not 
 good, if there was no intimation that an inference prejudicial to the ac- 
 cused should be drawn by the jury, from his omission to offer such testi- 
 mony. State V. Tozier, xlix. 404. 
 
 21. Upon a petition for review under c. 94 of tlie Public Laws of 1859, 
 the finding of the judge at nisi prius, on the questions of fact, is conclu- 
 sive, and cannot be revised on exceptions. Sturtevant v. Randall, xlix. 
 446. 
 
 22. If he should find the facts proved by the evidence, and should then 
 refuse to grant a review, the petitioner would have a remedy by excep- 
 tions. Sturtevant v. BandaU, xlix. 446. 
 
 23. A motion to quash an indictment is addressed to the discretion of 
 the presiding judge, and exceptions do not lie to his ruling thereon. 
 JState V. Maker, xlix. 569. State v. Hurley, lit. 562. 
 
 24. If, on petition for partition, matters are submitted to the commis- 
 sioners under the instructions of the presiding judge, which they have no 
 authority to decide, exceptions cannot be taken thereto at a subsequent 
 term-. Allen v. Hall, l. 253. 
 
 25. An instruction that "if the insurance company had not assets 
 enough on hand unappropriated, and dues collectable, to pay these losses, 
 they could make the assessment, to -the amount of such deficiency, and 
 jiot otherwise," affords the defendant, in a suit to recover the assessment 
 upon his note, no ground for exception. Maine M. M. Ins. Co. v. N'eod, 
 L. 301. 
 
 26. N"or has he any just ground for complaint, that the directors did 
 not strictly comply with the by-laws, and credit to the makers of the 
 notes the net profits of a certain year, it appearing that both for the pre- 
 ceding and subsequent years, the losses greatly exceeded the profits ; for 
 thereby he sustained no damage, his assessment being so much the less. 
 Maine M. M. Ins. Co. v. Real, l. 301. 
 
 27. On the trial of an indictment for making and uttering a forged dep- 
 osition, to procure a divorce by the respondent from his wife, no excep- 
 
220 EXCEPTIONS. 
 
 tions lie to the refusal of the presiding judge to allow the respondent, oa 
 cross-examination of the person whose signature to the deposition is al- 
 leged to be forged, to ask whether the statements in the deposition are 
 not true. State v. Kimball, l. 409. 
 
 28. Exceptions do not lie to the decision of the presiding judge upon 
 matters within his discretion. Cummings v. Smith, l. 568. Gumminga 
 V. Hayes, l. 568. State v. Maker, xlix. 569. State v. Hurley, liv. 562. 
 
 29. In an action against an indorser of a promissory note, proof hav- 
 ing been adduced of demand and notice, and the allegation of due no- 
 tice being controverted by the defendant, it is no ground of exception 
 that the presiding judge called the attention of the jury to the fact that 
 the defendant did not testify in the case, as a matter they might consid- 
 er, and give it such weight as they thought it might deserve. Union 
 Bank v. Stone, l. 595. 
 
 30. Exceptions to the report of referees are not sustainable if objec- 
 tions, in writing, were not filed as required by the 21st rule of court. 
 Hall V. Decker, li. 31. 
 
 81. It is no cause for exception that the plaintiffs, who sued as assign- 
 ees under the insolvent laws of Massachusetts, were allowed to amend 
 their writ by striking out the words descriptive of the character in which 
 they sued. Metcalf v. Yeaton, lt. 198. 
 
 32. The sons of a married woman deposited with her notes against her 
 husband, to be used by her during their absence, " in any way she might 
 think proper for her own benefit." Subsequently she surrendered these 
 notes, and also a note payable to herself, upon receiving a deed of certain 
 real estate, made by her husband to her sons and herself. One of her 
 husband's creditors attached the estate before the sons had knowledge of 
 the conveyance, and afterwards levied thereon. In a suit brought by the 
 wife and her sons against the attaching creditors to recover the estate, 
 Held, that it was no cause of exception that the jury were instructed 
 that they would be authorized to sustain the conveyance if they should 
 find from the evidence that the sons had constituted their mother the 
 judge of her own necessities, and that she deemed the purchase neces- 
 sary, — provided the transaction on the part of the mother was not done 
 to delay or defraud creditors of her husband or intended in any way for 
 her husband's benefit. Randall v. Lunt, li. 246. 
 
 33. If exceptions are taken to the refusal of the presiding judge to give 
 an instruction requested, and it does not appear from the case what in- 
 structions were actually given, unless the requested instruction presented 
 the true rule of law applicable, and lacked no qualification whatever, the 
 exceptions will be overruled. Marshall v. Oakes, li. 308. 
 
 34. Aliter, if the refusal of the specified instruction necessarily implies 
 that a contrary and incorrect rule was given ; or that the jury wei-e left 
 without instructions on the point ; or where they cover the whole prin- 
 ciple, and it is clear that the case required that the law should thus be 
 stated, although only the requests appear in the case. Marshall v. Oakes, 
 LI. 308. 
 
 35. Exceptions do not lie to the refusal of the presiding judge to com- 
 pel the prosecuting oflicer to elect upon what counts in the indictment he 
 will proceed. State v. Hood, li. 363. 
 
 36. When an ofiioe-copy of a deed is admissible, no exception lies to its 
 admission at any particular time. Hovey v. Chase, lii. 304. 
 
EXCEPTIONS. 
 
 221 
 
 37. Exceptions to the exclusion of interrogatories in a deposition, will 
 not be Bustained, when the same questions and answers have been ad- 
 mitted in another part of it ; nor when the deponent answers that he can- 
 not tell positively, but presumes that a particular state of facts exists. 
 Hovey v. Chase, Ln. 304. 
 
 88. Exceptions by a party, because the law was ruled too strongly in 
 his favor, cannot be sustained. lAine Rock Bank v. Hewett, Ln. 531. 
 
 39. Exceptions cannot be sustained to the erroneous admission of tes- 
 timony upon questions, which afterwards, on the trial, became immaterial. 
 Pope V. Machias W. P. Co., Ln. 535. 
 
 40. Exceptions to a refusal to give requested instructions will be over- 
 ruled, when they call upon the court to take from the jury the determina- 
 tion of facts; or when the case does not show the facts to which the re- 
 quested instructions relate. Brackett v. Persons Unknourn, Lin. 238. 
 
 41. The refusal of a motion to quash a complaint is not a subject of ex- 
 ceptions. State V. Smith, liv. 33. 
 
 42. 'Eo exception lies to the refusal to the presiding judge to order a 
 nonsuit. Stephenson v. Piscataqua F. & M. Ins. Co., liv. 55. 
 
 43. The refusal to give a requested instruction, sound as an abstract 
 legal proposition, but inapplicable, is not open to exception. Norton v. 
 sadder, liv. 189. 
 
 44. The bill of exceptions must show upon what ground a request for 
 an instruction to the jury, that the action on trial cannot be maintained, 
 was based, in order to render the refusal exceptionable. Lawrence v. 
 Chase, liv. 196. 
 
 45. To sustain exceptions to the refusal to allow an amendment to a 
 writ, the bill of exceptions must show that the presiding judge ruled, as 
 matter of law, that the proposed amendment was one which could not 
 be allowed. GHlman v. Emery, liv. 460. 
 
 46. A biU of exceptions will not be sustained, unless it state enough to 
 show that the ruling was erroneous and prejudicial to the excepting 
 party. Webster v. Golden, lv. 165. Webster v. Calden, lvi. 204. 
 
 47. In a real action, exceptions will not lie to the admission of a deed 
 offered by the defendant, and objected to by the plaintiff, with which, 
 when offered, the former proposed, but failed, to connect his own title. 
 
 Webster v. Calden, lv. 165. 
 
 48. Exceptions to allowing the prosecuting officer to inquire, on cross- 
 examination of the prisoner's witnesses, what his business has been, wUl 
 not be sustained when it does not appear what the answer was. State v. 
 Bartlett, lv. 200. 
 
 49. To sustain an exception to the admission of testimony, it is incum- 
 bent upon the excepting party to make it apparent that there was no 
 phase of the case, as presented at nisi prius which authorized the admis- 
 sion. Hovey v. Sohson, lv. 256. 
 
 50. A party cannot be considered as aggrieved by the omission to in- 
 struct in the form as requested, if the rule, which ought, of right, to gov- 
 ern the decision of the case, was clearly and intelligibly given. Hovey v. 
 Hobson, LV. 256. 
 
 51. Where, in the trial of a writ of entry, the validity of the deed under 
 which the defendant claims is controverted upon the ground of the inca- 
 
222 EXCEPTIONS. 
 
 pacity of the grantor, by reason of mental disease, the presiding judge 
 submitted to. the jury certain written questions embracing the substance 
 of the issue, with such instructions as could not fail to give the jury to 
 understand, that, upon their answers, or some of them at least, the rights 
 of the parties must depend, reserving his instructions as to the legal effect 
 of the answers until these questions were settled, Held, that there was 
 ■ no error in such a proceeding. Sovey v. Sobson, lv. 256. 
 
 52. Thus, where the questions submitted to the jury were, (1) was the 
 grantor, at the time of executing and delivering the deed in controversy, 
 of sound mind ? accompanied with the instruction substantially, that he 
 presented no inquiry but simply that of absolute soundness of mind ; to 
 which the jury answered that they were unable to agree upon a direct 
 answer ; and (2) did the grantor execute and deliver said deed at, or 
 about its date, understanding and comprehending the nature of his act, 
 the consideration to be paid, and that he was thus transferring the title 
 of the property therein described to the grantee, and the consideration to 
 himself? accompanied by proper instructions ; to which they answered, 
 "he did;" and thereupon the presiding judge instructed the jury, that, 
 upon their finding, the defendant was entitled to their verdict, HeMj 
 that these proceedings were unexceptionable ; the ruling in substance 
 being that ability to execute and deliver a deed, understanding and com- 
 prehending the nature of the act, the consideration to be paid, and that 
 he was thereby transferring the title to his property to the grantee and" 
 the consideration to himself^ indicates sufficient soundness of intellect in 
 the grantor to make the conveyance valid, though it be uncertain whether 
 his mind was in all respects and absolutely sound. Sovey v. Sobson,, 
 LT. 256. 
 
 53. Exceptions to the exclusion of certain declarations offered cannot 
 be sustained, unless their materiality to some issue in the case is shown. 
 
 Webster v. Golden, lvi. 204. 
 
 54. Where the sanity of a grantor, at the time of executing a deed of 
 the land in controversy is in issue, the party seeking to uphold the deed 
 cannot justly complain of the instruction, that mere nervous excitemenii 
 or mental weakness would not be sufficient to defeat the operation of the 
 deed; but,' if the grantor had the mental capacity to know and rationally 
 understand and comprehend the nature of the business she was then' 
 transacting, that was all the law required to render her deed effectual. 
 Darby v. Sayford, lti. 246. 
 
 55. When additional instructions in matters of law are desired,^pe'cific 
 requests should be made. Darby v. Sayford,.'L,Y\. 246. 
 
 56. A refusal to instruct generally as to the legal bearing of selected 
 portions of the testimony is no ground of exceptions. Darby v. Hat/^ 
 /ore?, Lvi. 246. 
 
EXECUTION. 
 
 223 
 
 EXCESS. 
 See Agency, 28. Assumpsit, 11. Moetgagb, 68. Pkacticb, 91. 
 
 EXECUTION. 
 
 I. OF ISSUING EXECUTIONS, AND THEIE VALIDITY AND DIS- 
 CHARGE, 
 n. LEVIES UPON EEAL ESTATE, 
 m. LEVIES ON PEESONAL PEOPEETY. 
 
 I. OE ISSUING EXECUTIONS, AND THEIE VALIDITY AND DIS- 
 CHAEGE. 
 
 1. An execution against two persons, in which the surname of one is 
 erroneously stated, is not void as against the other. JBlahe v. JBlan- 
 chard, xLvin. 297. 
 
 2. R. S. of 1841, c. 117, §§ 46 and 47 (R. S., 1857, c. 84), providing 
 that an inhabitant or a proprietor of land in a town may voluntarily pay 
 his proportion of an execution against the town, were intended to grant 
 a perpetual exemption, both to the j)erson and estate of any inhabitant 
 so paying, if he shall proceed in the mode prescribed by the statute. Vide 
 Public Laws of 1858, c. 53. Spencer v. Brighton, xltk. 326. 
 
 3. Although a portion of the inhabitants, by such payments, are thus 
 exempted, an action may be sustained against the " inhabitants of the 
 town," by one whose land has been seized and sold to satisfy the unpaid 
 bal?ince of the execution. /Spencer v. JBrighton, xlix. 326. 
 
 4. The execution, in such case, should issne against the inhabitants of 
 the town ; but if it be levied on property by law exempted, the party 
 taking the property will be liable therefor. Spencer v. Brighton, xlix. 
 326. 
 
 5. When, as between two judgment debtors, one of them is bound to 
 pay the entire judgment, the other may procure the creditor to levy the 
 execution upon the property of the former, or in default of property, to 
 arrest him, without impairing the validity of the execution. Crooker v. 
 Baker, xlix. 449. 
 
 See Amendment, 35. 
 
 n. LEVIES UPON EEAL ESTATE. 
 
 (a) Genbeallt. 
 
 (b) Appbaisees, and tsb appeaisement. 
 
 (C) EeTUEIT of the OPFICEE. 
 
 (d) EEirENlITG AND EECOEDING THE SAME. 
 
 (e) DELIVEBY OF SEism. 
 
 ( f ) Levies on equities of eedempiion, &c. 
 
 (g) EEDEMPIIONi AFTEE AN EXTENT, OE SALE ON EXECUTION. 
 
224 EXECUTION. 
 
 (a) Generally. 
 
 6. "Where a judgment creditor causes his execution to be levied upon 
 land, the legal title to which is in the debtor, if, prior to the attachment 
 of it on the original writ, he had actual notice that the debtor held the 
 land in trust for the benefit of a third person, as against the rights of 
 such equitable owner, the levy will be invalid. Eastman v. Fletcher, 
 XLT. 302. Garter v. Porter, lv. 337. 
 
 7. An execution was satisfied, in part, by a levy upon a parcel of land, 
 and the residue, by a sale of an equity of redemption of another parcel, 
 the creditor becoming the purchaser. Subsequently, the debtor, by pur- 
 chase, obtained a reconveyance of the equity from the creditor, who 
 discharged the debtor, expressly reserving his rights under the levy. Af- 
 terwards, the creditor discovering that at the time of the levy, the land 
 was subject to a mortgage which still subsisted, claimed to rescind the 
 bargain. In debt brought some time afterwards, to recover the amount 
 for which the execution was satisfied by the levy, Held, that the recon- 
 veyance of the equity, and the discharge, should be regarded as a full 
 and final settlement of the whole matter. Keene v. Lord, xlv. 618. 
 
 8. Levies, in which illegal fees may have been included, remain unaf- 
 fected by R. S., c. 76, § 20, and are not to be defeated for that cause. 
 Keen v. JBriggs, xlvi. 467. Wilson, v. Gannon, lit. 384. 
 
 9. The owner of real estate seized and sold on an execution against 
 the town in which it is situated, cannot recover the value thereof against 
 the town (under the provisions of R. S., c. 84, § 31) where there has 
 been such a non-compliance with the requirements of the statute as to 
 the levy and sale, that no title vested in the purchaser. Crafts v. EUi- 
 otsville, XLVii. 141. 
 
 10. Where the statute required the officer to publish in his notice, 
 "the names of such proprietors as are known to him, and, if the names 
 are not known, the number of lots," it is not a compliance, if the officer 
 certify in his return " that the proprietors were mostly unknown " to 
 him. Crafts v. Elliotsville, xlvii. 141. 
 
 11. Nor where, an adjournment of the sale was authorized " from day 
 to day, not exceeding three days," if, from his return, it appears that he 
 adjourned the sale from the sixteenth to the twenty-second day of the 
 same month. Crafts v. Elliotsville, xlvii. 141. 
 
 12. Where a deed contains a condition subsequent, an execution cred- 
 itor of the grantee will acquire no title to the premises, by a levy there- 
 on. Thomas v. Record, xlvii. 500. 
 
 IB. The levy of an execution is not of itself sufficient to transfer real 
 estate to which the debtor never had the legal title, but which is held in 
 trust for him. Dockray v. Mason, XLvm. 178. 
 
 14. After such a levy, a fraudulent conveyance of the estate to one 
 assisting in the fraud, will not affect the rights of the creditor. Bockray 
 V. Mason, xlviii. 178. 
 
 15. The levy of an execution upon land bounded on a highway will 
 carry the fee in the land conveyed thereby to the centre of it, if the 
 debtor was the owner of the land, and there being no controlling lan- 
 guage in the description. WinslowY. Allen, ■s.-VYm.2iQ. 
 
 16. In the description of la:nd taken on execution, where one line is 
 described as starting at a certain monument and running a given course 
 
EXECUTION. 225 
 
 to the road, " leaving four rods for said road," thence in the same course 
 to a monument, and the line parallel with this, is described in a similar 
 manner, the road is not included. Winslow v. Allen, xlviii. 249. 
 
 17. In deeds and levies, courses and distances can be controlled only 
 by monuments. Parol evidence is inadmissible to show an error in the 
 course of a line in the return of a levy. Chadboume v. Mason, xlyiii. 
 389. 
 
 18. When all the calls in a levy are answered, and yet the land levied 
 upon cannot be distinctly known and identified, the levy is void. 
 Chadboume v. Mason, xlviii. 389. 
 
 19. Where the " head of a family or householder " claiming the bene- 
 fit of c. 207 Public Laws of 1850, caused his certificate to be recorded 
 after a judgment (for costs) had been entered up against him, the prem- 
 ises described in the certificate will not be exempt from the levy of an 
 execution that may be issued thereon. Mills v. Spaulding, l. 57. 
 
 20. And if the debtor so long neglect to pay the judgment that no 
 execution can be issued, and a suit is brought on the judgment, the ex- 
 ecution that afterwards issues may be levied on the premises, notwith- 
 standing it includes interest and costs that have accrued after the re- 
 cording of his certificate of exemption. Mills v. Spaulding, l. 57. 
 
 21. A levy takes precedence of a mortgage recorded the day after the 
 time named when the officer " seized and took " the land in execution. 
 French v. Allen, l. 437. 
 
 22. The levy of an execution upon land held by the debtor, under a 
 deed not recorded, will not be defeated by his subsequent surrender of 
 his deed to his grantor, and the cancellation of it. Howe v. Willis, li. 
 226. 
 
 23. And, if the grantor afterwards executed a release to another 
 party, such deed conveyed no title to the premises. Howe v. Willis, li. 
 226. 
 
 24. It may be fairly inferred that the person taking such release had 
 notice of the former deed, if the grantee in the first deed had, for years 
 before the levy, been in the exclusive possession of the premises, and af- 
 ter the levy such releasee never claimed title to, entered upon the land, 
 or interfered with the possession of the execution creditor. Howe v 
 Willis, li. 226. 
 
 25. In case of a grant by deed, the law presumes the party intended 
 to convey something; but there is no presumption in case of a levy, 
 and the party must rely upon the return of the appraisers and the officer 
 to give him an estate not invalidated or rendered void by exceptions or 
 qualifications. Jewett v. Whitney, li. 233. 
 
 26. A levy upon the land and privilege upon which a mill stands, ex- 
 cluding the mill, is void. Jewett v. Whitney, ll 233. 
 
 27. If the mill and land on which it stands are not included in the 
 levy, no seisin of that part was delivered by the officer to the creditor 
 and the levy cannot aid him in sustaining a possessory title thereto' 
 which he can only acquire by actual and exclusive possession, claiming 
 as owner, continued for twenty years. Jewett v. Whitney, ll 233. 
 
 28. If a building is excluded from a levy, in the supposition that it is 
 personal property, when in fact it is apart of the realty, the levy is void, 
 Hemenway v. Cutler, li. 407. 
 
 15 
 
226 EXECUTION. 
 
 29. A levy, in the description of which the place of beginning, with 
 the first line from it, and the last line to it, is given with sufiicient cer- 
 tainty, but the second line is one commencing at the second monument; 
 "thence south-westerly forty-nine feet and five inches to a point, thence 
 easterly twenty-one feet and nine inches to a point," is invalid for un- 
 certainty, there being no other description by which the estate levied 
 on can be identified. Forbes v. Sallju. 568. 
 
 30. But when some particulars are erroneously stated, and yet, from 
 the whole description, the premises levied on can be ascertained, the 
 levy is valid. Forbes v. Hall, li. 568. 
 
 31. Under our statutes, a creditor may levy upon real estate, which 
 the debtor, having had the legal title thereto, has fraudulently con- 
 veyed. Hall V. Sands, lii. 855. 
 
 32. Such land may be attached, as well in actions of tort as of con- 
 tract, and held, as against subsequent conveyances. Hall v. Sands, lu. 
 355. 
 
 33. Where in the trial of a writ of entry, the plaintiflT's title to the 
 land in question depends upon a levy, a valid judgment must be proved, 
 if the defendant be not a party or privy to it. Tebbetts v. Estes, m. 
 566. 
 
 34. Where an administrator obtained a judgment upon a demand 
 belonging to his intestate, and extended the execution upon the land of 
 the judgment debtor, he held the land, under the Public Laws of 1821, 
 c. 52, in trust, during the time he was administering. Tebbetts v. Estes, 
 LII. 566. 
 
 ■ 35. But it may well be doubted whether his right was not ad rem, 
 rather than in re, being more in the nature of a lien, than a legal title. 
 Tebbetts v. Estes, lii. 566. 
 
 36. If a judgment creditor extend his execution on a portion of the 
 land mortgaged to secure the same debt, and the debtor neglect to re- 
 deem for the space of one year thereafter, so much of the estate as is 
 owned by the levy is absolute in the creditor, notwithstanding the 
 mortgage. Crooher v. Frazier, lii. 405. 
 
 37. A. and B. severally attached C.'s real estate, one Ist September 
 and the other 5th September, 1860. In November following, prior to 
 any levy, A. for a valuable consideration, executed and delivered to 
 B. a release of his attachment " so far that B. shall at all times take pre- 
 cedence in any levy he may make on the real estate." B. extended his 
 execution on the premises, June, 1861, and subsequently conveyed, by 
 deed of quitclaim, his " right," to the plaintiff's ancestor. A. extended 
 his execution June, 1863, and subsequently conveyed by deed of quit- 
 claim, reciting the release to the defendant's grantor. In ejectment, 
 Held, that the release was valid, and that B.'s levy took precedence. 
 Bachdder v. Perley, liii. 414. 
 
 38. A judgment creditor cannot commence a levy on real estate while 
 the debtor is under arrest or imprisoned by virtue of the same or a sub- 
 sequent execution upon the same judgment. Clement v. Garland, Lin. 
 427. 
 
 ; 39. All subsequent proceedings of a levy relate back to the time of 
 its commencement, which is the time of seizure. Clement v. Garland, 
 liii. 427. 
 
EXECTJTION. 227 
 
 40. A marine railway, consisting of iron and wooden rails and sleepers, 
 endless chain, gear, wheels, and ship-cradle, and constructed in the usual 
 manner, is a fixture, and will pass by a levy upon the realty. Strickland 
 V. Parker, lit. 263. 
 
 41. By extending his execution upon his judgment debtor's undivided 
 part of such railway and land on which it is located, the judgment cred- 
 itor becomes a tenant in common with the other owners. Strickland v. 
 Parker, lit. 263. 
 
 42. "Where the starting-point in a description of a levy is stated in the 
 appraisers' return to be the " S. E. corner of lot number 29," and none of 
 the other calls apply to that lot, bat all but the first do apply to lot 32, 
 and the latter lot was in fact the one examined and appraised, the levy 
 will be upheld. Jones v. Puck, mv. 301. 
 
 43. If an attempted attachment of real estate be void, but the succeed7 
 ing levy valid, the creditor's title will, in the absence of intervening 
 claims, take date from the time of the levy ; and the officer's reference 
 to the attachment, in his return upon the execution, will not affect the va- 
 lidity of the levy. Brackett v. Ridlon, liv. 426. 
 
 44. In the absence of satisfactory proof to the contrary, the court sit- 
 ting in banc will presume that the officer and appraisers making a levy 
 made their return upon the " back of the execution." The mere fact that 
 copies produced are not thus made, is not satisfactory, especially when 
 they speak of the " within-named creditor " and of " this " execution. 
 Brackett v. Ridlon, lit. 426. 
 
 45. The validity of a levy having been once tried and determined by a 
 court of competent jurisdiction, the unreversed judgment thereon is con- 
 clusive between the parties and their privies. Libby v. Bider, lit. 463. 
 
 46. If the whole interest in the estate set out is appraised as belonging 
 to the debtor, when, in fact, he owned only two-thirds, the levy will be 
 valid. Patterson v. Chandler, lv. 53. 
 
 47. The levy in the name of one, not the judgment-creditor, but for 
 whose benefit the judgment is alleged in the execution to have been re- 
 corded, is invalid. Mysroll v. Yiolette, lt. 108. 
 
 48. A judgment against two jointly is erroneous, and will not sustain 
 a levy made upon the real estate of one of the judgment debtors, if the 
 other was not an inhabitant of this State, and no personal service of the 
 writ was made upon him. Buffum v. Bamsdell, lt. 252. 
 
 49. Under R. S. of 1841, c. 104, § 21, a levy upon land was valid if the 
 sheriff simply seized the land while in office, and completed it after his 
 official term had expired. Clark v. Pratt, lv. 546. 
 
 See Equity, 137, 144-147. 
 
 (b) Appraisers, and the appraisement. 
 
 50. Whether the certificate of appraisers which is fatally defective is 
 amendable, so that the intervening claim of a third person, who had no- 
 tice of the levy, may be afiected thereby, quaere. Harriman v. Gum- 
 
 , XLT. 351. 
 
 51. Where an entire estate was appraised, set out by metes and 
 bounds, and levied upon as the property of the debtor in an execution, 
 who was owner of only an undivided portion of it, the levy was held 
 
228 EXECUTION. 
 
 valid to transfer the debtor's title to his undivided part, it being a less 
 estate than that mentioned by the appraisers. Swanton v. C'rooher. 
 XLix. 455. Patterson v. Chandler, lv. 53. Qlidden v. Philbrick, lvi, 
 222. 
 
 52. The language of § 6, c. 76 of R. S., applies in all cases where the 
 " nature of the estate " is stated by the appraisers in their return, unless 
 the estate taken is greater than that mentioned in their certificate, or the 
 levy is so made as to be prejudicial to the rights of the co-tenants. 
 Swanton v. Crooker, xlix. 455. 
 
 53. The word " premises " must be construed to apply to the estate 
 taken, whatever may be its nature. Swanton v. Crooker, xlix. 455. 
 
 54. Where the officer's return and appraisers' certificate are informal 
 and defective, and are amended by leave of court, the amended returns 
 are binding on the parties to the levy. Symonds v. Harris, li. 14. 
 
 55. Where the appraisers appraised a parcel of real estate, and set out 
 an undivided proportional part of it to the creditor, at an appraised 
 value which did not agree with their appraisement of the whole parcel, 
 the latter, being unnecessary, may be treated as surplusage and disre- 
 garded. Symonds v. Harris, li. 14. 
 
 56. In the appraisers' certificate, the words " we proceeded with the 
 officer to view and examine the debtor's real estate, and having re- 
 viewed and examined the same," &c., sufficiently show that they entered 
 with the officer upon the estate levied on. Hardy v. Sidelinger, lii. 
 138. 
 
 57. And the words " the fee-simple therein " show that the land was 
 set offi Hanly v. Sidelinger, lii. 138. Brackett v. Bidlon, liv. 426. 
 
 68. The person who subscribes the certificate of the appraisers, by the 
 use of his whole name, is sufficiently identified as the same person who 
 is mentioned in the certificate of the oath, and in the officer's return by 
 his surname only, where the return refers to the certificate thus sub- 
 scribed (in which the administration of the oath is also set forth) and it 
 speaks of "the said appraisers" as having viewed the premises. Sua. 
 Boynton v. Grant, lii. 220. 
 
 59. When the appraisers' certificate states that they viewed a "cer- 
 tain tract of land " showed to them as the " estate "'of the judgment 
 debtor, and that they appraised " said land " and set " it " out by metes 
 and bounds, &o., this language, in the absence of any words of limitation, 
 may be understood as stating the "nature of the estate," &c., as required 
 by R. S., c. 76, § 3. Boynton v. Grant, m. 220. Stinson v. Bouse, m. 
 261. Brackett v. Bidlon, liv. 426. Patterson v. Chandler, lv. 53. 
 
 60. R. S., c. 76, § 3, provided that the appraisers shall, " in a return 
 made and signed by them on the back of the execution, state the nature 
 of the estate and its value, and whether it is in severalty or in common, 
 a fee-simple or less estate, in possession, reversion, or remainder, and de- 
 scribe it by metes and bounds." Stinson v. Bouse, Ln. 261. 
 
 61. Where appraisers certified that they " appraised " at a sum named, 
 " a certain lot of land " described by metes and bounds, and shown to 
 them " as the property of" the debtor, which he " held in fee-simple and 
 severalty," although the language is not certain to every intent, it states 
 with sufficient certainty that the debtor owned and held, and that they 
 
EXECUTION. 
 
 229 
 
 appraised, the entire property in the lot of land, present and future. 
 Stinson v. Rouse, lii. 261. Brachett v. Ridlon, lit. 426. 
 
 62. Chapter 165, of the Public Laws of 1863, cannot affect levies 
 made prior to its passage. Stinson v. Rouse, lii. 261. 
 
 63. Where, by the certificate of the appraisers indorsed upon the back 
 of an execution against several debtors, it appears that they appraised 
 certain real estate " as the estate in fee-simple of the debtor within 
 named Edmund Smith;" and the officer's return recites that "having 
 given notice . .,<. to the within named Edmund Smith and allowed him 
 a reasonable tififle ... to choose an appraiser," and having caused three 
 disinterested men, viz., E. T. L., chosen by the creditor, R. W., "chosen 
 by the debtor," and J. 6., chosen by myself, to be sworn, &o. ; and the 
 real estate described in the foregoing certificate of the appraisers having 
 been shown to them and me as the estate in fee-simple and in severalty 
 of "Edmund Smith the debtor aforesaid," &c.. Held, that the terms "the 
 debtor " and " the debtor aforesaid " have an obvious reference to " the 
 debtor, within named Edmund Smith," and it is sufficiently certain 
 whose land was levied upon, and which debtor had notice. Corhett v. 
 Maine S Union Banks, liii. 542. 
 
 64. When the term " fee-simple " is used in the appraisers' certificate 
 as descriptive of the nature of the estate appraised by them, it means 
 that the estate was owned by the debtor " in severalty," and that it was 
 an estate "in possession;" and is a sufficient compliance in this partic- 
 ular with R. S., 0. 76, § 3. Brackett v. Ridlon, liv. 426. 
 
 (c) Return of the officer. 
 
 65. Where an execution has been levied upon the land of one of the 
 several debtors therein, unless it appear with certainty that the debtor, 
 whose estate has been taken selected one of the appraisers, or was noti- 
 fied to choose one and neglected, the levy will be void. Harriman v. 
 Cummings, XL v. 351. Ware v. Barker, xlix. 358. Boynton v. Grant, 
 LiL 220. 
 
 66. Thus, where the return certifies that A. B., one of the appraisers, 
 was chosen by the debtor within named (without particularizing which), 
 the return is insufficient. Harriman v. Cummings, xlv. 351. 
 
 67. An officer's return, stating that he notified the debtor to be pres- 
 ent at the time and place to select an appraiser, " which he utterly re- 
 fused to do," is sufficient evidence of the notice required by the statute. 
 JSeen v. Briggs, xlvi. 467. 
 
 68. Where the officer's return does not state specifically the items of 
 his charges and fees, nor the gross amount, but that the land levied upon 
 was appraised at a certain sum, "which is the amount of the execution, 
 fees, and charges, it is sufficient, as the execution and return, taken to- 
 gether, furnish data for ascertaining the amount of charges. Keen v. 
 Briggs, xlvi. 467. 
 
 69. It seems, that the officer in such a case may amend his return, and 
 supply the items and amount of his charges, although out of office. 
 Keen v. Briggs, xlvi. 467. 
 
 70. It is essential to the validity of a levy that the officer's return show 
 that the owner of the land levied on chose' one of the appraisers, or had 
 the legal notice to do so. Ware v. Barker, xlix. 358. 
 
230 EXECUTION. 
 
 71. When an execution against two debtors is levied upon land of one 
 of them, a return, that " the debtor " refused to choose any appraiser, fails 
 to show that the owner of the land had the requisite notice to do so, and 
 the levy is therefore void. Ware v. JBarJcer, xlix. 358. 
 
 72. Under the R. S. of 1841, and of the Public Laws of 1856, c. 278, 
 § 1, relating to levies on real estate, the return of an officer that, on a 
 day and at an hour named, he "seized and took in execution " cer- 
 tain lands of the debtor, and set off the same by metes and bounds to 
 the creditor in satisfaction of an execution, referring to the annexed cer- 
 tificate of the appraisers for a description of the premises set off, is suffi- 
 ciently definite. French v. Allen, l. 437. 
 
 73. Where the officer's return, as recorded, recites that one "was 
 chosen an appraiser by me in behalf of the within-named" creditor, "and 
 I was then notified of the same," and the original, on inspection, leaves it 
 in doubt whether the word written was me or and, it is to be regarded a 
 clerical prror, and the remainder of the sentence as showing that the 
 creditor selected the appraiser referred to. French v. Allen, l. 437. 
 
 74. The time named in the officer's return when he "seized and took 
 in execution " the lands, was the commencement of the service of the ex- 
 ecution, and all subsequent proceedings relate back to that time. French 
 V. Allen, L. 437. 
 
 75. It was not necessary that the nature of the estate appraised should 
 be described in the officer's return, under R. S. of 1841, c. 94, § 7. French 
 V. Allen, L. 437. 
 
 76. Where the officer's return and appraisers' certificate are informal 
 and defective, and are amended by leave of court, the amended returns 
 are binding on the parties to the levy. Symonds v. Harris, li. 14. 
 
 77. If an officer obtains leave to amend a return, and files an amended 
 copy with the clerk, but does not amend the original, and afterwards ob- 
 tains leave to withdraw his amended copy, the original return stands 
 without amendment. Hanley v. Sidelinger, lii. 138. 
 
 78. The return, which states that N. U. "being chosen by myself, and" 
 W. P "being chosen" by the creditor, and J. "being chosen by myself 
 also, the debtor neglecting to select one," is insufficient. Boynton v. 
 Grant, lii. 220. 
 
 79. An officer's return of a levy cannot be amended according to the 
 facts, after having been recorded, to the injury of intervening bona fide 
 purchasers. Boynton v. Grant, lii. 220. 
 
 80. The statute does not require the return of an officer making a levy 
 upon real estate, to specifically declare that the land appraised is " set off" 
 to the creditor, " to have and to hold to him, his heirs," &c. ; and, if the 
 name of a person other than the creditor be inserted, the whole phrase 
 may be rejected as surplusage. Jones v. Buck, liv. 301. Brackett v. 
 McKenney, lv. 504. Brackett v. Bennett, lv. 504. 
 
 81. A levy upon real estate will be sustained so far as the return of the 
 officer on the back of the execution is concerned, if it import by neces- 
 sary intendment the actual performance of all the statute requisites. 
 Brackett v. McKenney, lv. 504. 
 
 82. A certificate, that the appraisers " made oath in due form of law 
 that they would faithfully and impartially appraise such real estate of 
 
EXECUTION. 
 
 231 
 
 the within-named " debtor " as should be shown them to satisfy the with- 
 in execution and all fees," shows a sufficient compliance with the oath 
 required in R. S. of 1841, c. 94, § 4. Brackett v. McKenney, lt. 504. 
 
 83. To "set oif," as used in R. S. of 1841, c. 94, § 24, simply means to 
 separate or assign for the purpose of satisfying the execution and offi- 
 cer's fees so far as the appraised value of the land will go. Braohett v. 
 McKenney, lt. 504. 
 
 84. The return of appraisers, duly signed and indorsed upon an execu- 
 tion extended upon land, minutely described by metes and bounds the 
 various parcels of land which they had examined, and specified their es- 
 timate of its value to each, concluding: " all of the above-mentioned lots, 
 amounting to the sum" named, "the same having been shown to us by 
 the within-named " creditor, "to. satisfy the within execution in full and 
 all fees for levying same." The officer's return thereon, adopted that of 
 the appraisers, and alleged that "he had seized, on this execution, the 
 real estate above described ; " that, after being duly sworn, the appraisers, 
 " upon oath appraised the same as above appears and each lot separately, 
 the whole amounting to the sum " named, " in full satisfaction of the 
 within execution and all fees ; " that " the premises are correctly de- 
 scribed;" that "I have this day agreeably to law delivered seisin and 
 possession of the same premises to the within-named " creditor, " to have 
 and to hold the same to the said" creditor, "his heirs and assigns for- 
 ever ; " and that " I therefore return this execution fully satisfied." Held, 
 that the officer's return substantially states that the appraisers " appraised 
 and set off the premises, after viewing the same, at the price specified," 
 as required by R. S., c. 94, § 24, clause 4. Brackett v. McKenney, lv. 
 504. 
 
 85. The return of a levy of an execution upon real estate, made under 
 R. S. of 1841, c. 94, § 4, must expressly show that the appraisers were 
 " discreet " as well as " disinterested men," or the levy cannot be sus- 
 tained. Olidden v. Philhrick, lvi. 222. 
 
 86. He may amend his certificate of his administration of the oath to 
 the appraisers, by appending his signature to it, when his return and the 
 certificate of the appraisers recite that the appraisers were duly sworn. 
 Glidden v. Bhilbrick, lvi. 222. 
 
 87. Where the officer's return calls the appraisers " persons " instead of 
 "men," the word used in the statute, and specifically mentions them by 
 names given to males alone, this court will construe the word " per- 
 sons " to mean " men " and not women. Glidden v. Philbrick, lvi. 222. 
 
 88. Where an entire estate is appraised, set out by metes and bounds 
 and levied upon as the property of the execution creditor, who owned 
 only an undivided portion of it, the levy is valid as to the debtor's undi- 
 vided part. Glidden v. Philbrick, lvi. 222. 
 
 89. The return of the officer as to the choice of the appraisers, in a 
 levy upon real estate, cannot be contradicted by parol. Sotchkiss v. 
 Sunt, Lvi. 252. 
 
 See Amendment, 37. 
 
 (d) Returning and recording the execution. 
 
 90. Under R. S. 1857, when an execution has been levied on real es- 
 tate, and, before it has been returned and recorded, it is ascertained that 
 
232 EXECUTION. 
 
 the levy is invalid for any reason, the creditor may waive the levy, and 
 resort to any other remedy for the satisfaction of his judgment. Gros- 
 venor v. Ghesley, xlviii. 369. 
 
 91. But after the execution is returned and recorded, if the levy proves 
 to be invalid, the creditor's only remedy is scire facias to revive the 
 judgment ; and an action of debt will not lie. Orosvenor v. Ghesley, 
 XLvni. 369. 
 
 92. As between debtor and creditor, a levy is valid without being re- 
 corded. Hanly v. Sidelinger, im. 138. 
 
 93. The record of an officer's return of a levy must show the seizure to 
 have been within thirty days after judgment, in order to be good as 
 against intervening bona fide purchasers. Boynton v. Chant, lii. 220. 
 
 (e) Delivery of seisin. 
 
 94. If a mill and land on which it stands are not included in the levy, 
 no seisin of that part was delivered to the creditor by the officer, and 
 the levy cannot aid him in sustaining a possessory title thereto, which he 
 can only acquire by actual and exclusive possession, claiming as owner, 
 continued for twenty years. Jewett v. Whitney, li. 233. 
 
 95. The return of the levying officer that he " delivered seisin and 
 possession to " a person named, "attorney for the said" creditor "for the 
 purpose of receiving seisin and possession," &c., as per his receipt hereon, 
 is prima facie evidence that the person named was the attorney, and 
 received seisin and possession of the premises. Wilson v. Gannon, liv. 
 384. 
 
 96. The omission of the person thus named as attorney, to certify that 
 he had received seisin and possession, is no contradiction of the offieeA 
 return, and cannot devest the creditor of the rights secured by the levy. 
 
 Wilson V. Gannon, lit. 384. 
 
 97. And a writ of entry, subsequently brought by the execution credi- 
 tor claiming title under the levy, adopts the levy and affirms the agency 
 of the attorney. Wilson v. Gannon, lit. 384. 
 
 98. By the levy of an execution upon the land of a judgment debtor 
 and the delivery of seisin to the creditor, the possession of the tenant, 
 even if adverse to the creditor, thereby became interrupted. Clarle v. 
 I'ratt, LV. 546. 
 
 99. The seisin of the creditor, thus obtained, will be presumed to con- 
 tinue in him until proof to the contrary is shown. Clark v. Fratt, lv. 
 546. 
 
 (f) Levies on equities of redemption, <&c. 
 
 100. An execution was satisfied, in part, by a levy upon a parcel of 
 land, and the residue, by a sale of an equity of redemption of another 
 parcel, the creditor becoming the purchaser. The debtor afterwards, by 
 purchase, obtained a reconveyance of the equity from the creditor, who 
 discharged the debtor, expressly reserving his rights under the levy. 
 Subsequently, the creditor discovered that at the time of the levy, the 
 land was subject to a mortgage, which still existed; whereupon he 
 claimed to rescind the bargain. In an action of debt brought some years 
 
EXECUTION. 
 
 233 
 
 afterwards, to recover the amount for which the execution was satisfied, 
 by the levy, Held, that the reconveyance of the equity, and the dis- 
 charge, should be regarded as a full and final settlement of the whole 
 matter. Keene v. Lord, xlv. 613. 
 
 101. The statute regards an equity of redeeming mortgaged real es- 
 tate an entirety, and does not authorize the sale of several equities for 
 one sum. The equities are several, and the sales must be several. Stone 
 V. Bartlett, xlvi. 438. Smith v. I)ow, li. 21. 
 
 102. A sheriif's deed of an equity of redemption is inoperative if the 
 facts required by statute are not recited. Pratt v. Skoljield, xlv. 386. 
 MicJiardson v. Skolfield, xlv. 386. 
 
 103. But when the officer's return of a sale of an equity of redemption 
 on execution shows that the proper notices have been given, the deed 
 need not also show it. Stinson v. Boss, li. 556. 
 
 104. When the right in equity to redeem mortgaged premises is at- 
 tached and sold on execution, if the mortgage debt was paid before the 
 sale, there being no mortgage subsisting, nothing passed by the sale. 
 Brown v. Sndl, xlvl 490. 
 
 105. If a mortgage be fraudulent, a creditor may levy on the land as 
 unincumbered; but if he treat the mortgage as valid, sell the right of re- 
 demption and purchase it in, he cannot then claim that the mortgage be 
 deemed void, and hold the land discharged from it. Brown v. Snell, 
 XLVL 490. 
 
 106. A sale of two or more equities for one entire sum is void, not 
 only as against the judgment debtor, but as against any one connected 
 with the title, or against whom it is adversely used. Smith v. Bow, li. 
 21. 
 
 107. If there be two mortgages embracing the same prices of real es- 
 tate, whether other prices are included in one of the mortgages or not, 
 a sale on execution of the rights in equity of redemption under both 
 mortgages, at the same time, and for one sum, is illegal and void. Smith 
 V. Bow, LL 21. 
 
 108. Sections 29 to 37 of c. 76, of R. S. of 1857, do not permit a sale 
 of an equity of redemption upon two or more executions jointly in favor 
 of different creditors. Chwpman v. And. B. B. Co., Liv. 160. 
 
 See FoBCiBLB Entey, &c., 11. 
 
 (g) Bedemption, after an extent, or sale on execution. 
 
 109. If a judgment creditor extend his execution on a portion of the 
 land mortgaged to secure the same debt, and the debtor neglect to re- 
 deem for the space of one year thereafter, so much of the estate as is 
 covered by the levy is absolute in the creditor, notwithstanding the 
 mortgage. Crooker v. Crazier, ui. 405. 
 
 110. The debtor may redeem the residue however. Crooker v. B'ra- 
 zier, Ln. 405. 
 
234 EXECUTOR AND ADMINISTRATOR, 
 
 in. LIENS ON PERSONAL PROPERTY. 
 
 111. An officer, who has seized property on execution, does not aban- 
 don the seizure by leaving it in charge of a keeper, in a building to 
 which the debtor has access, as well as the keeper, though the latter re- 
 fuses to become responsible for the property if burned or stolen. Ames 
 V. Taylor, xlix. 381. 
 
 See CoEPOEATioN, 17. 
 
 EXECUTOR AND ADMINISTRATOR. 
 
 I. APPOINTMENT, POWERS, DUTIES, AND LIABILITIES. 
 II. SUITS BY AND AGAINST. 
 
 1. APPOINTMENT, POWERS, DUTIES, AND LIABILITIES. 
 
 (a) Interest in, and atjthokitt over, the estate and sales 
 
 THEEBOE. 
 
 (b) Generally. 
 
 (a) Interest in, and authority over, the estate and sales thereof. 
 
 1. Where a master of a vessel, who had loaned a part of the money 
 received for freight, and taken a promissory note therefor, payable to 
 himself, died before the note was paid, his administrator will not be en- 
 titled to retain it, such note being the property of the owner of the ves- 
 sel, held by the master in trust, and clearly distinguishable from the as- 
 sets belonging to his estate. Thompson v. White, xlv. 445. 
 
 2. If the administrator, after the owner had demanded the note of him, 
 collect it, he will become personally liable to the owner for the money. 
 Thompson v. White, xlv. 445. Thompson v. Small, xlt. 445. 
 
 3. Where a judge of probate has decreed an allowance to a widow 
 from the personal estate of her deceased husband, and the administrator 
 has paid a part of it, taking receipts for his payments, he is bound to pay 
 the balance when demanded, on tender of a receipt therefor, and is not 
 authorized to refuse payment until he obtains a discharge or receipt in 
 full. The several receipts for part payments, making up the whole sum 
 when taken together, constitute a receipt in full, and would be perfect 
 vouchers before the judge of probate. Godfrey v. Getchell, xlti. 537. 
 
 4. An executor, though qualified as such by the laws of another State, 
 has no authority by reason of such qualification to act as such in this. 
 Gilman v. Gilman, nv. 453. 
 
 5. Af common law, the discharge of a debt by one of several execu- 
 tors, is valid and binds the others. Gilman v. Sealey, lv. 120. 
 
 6. When two joint executors have, under § 1, c. 250 of the Public 
 Laws of 1864, obtained a decree of the probate court to compromise 
 claims between the estate of the testate and its debtor in a certain man- 
 ner, an adjustment by. either of the executors, in compliance with the 
 decree, will bind the other. Gilman v. Sealey, ly. 120. 
 
EXECUTOR AND ADMINISTRATOE. 235 
 
 7. If, upon citation, the surviving partner of a firm decline to give the 
 bond provided in R. S., c. 69, § 2, the administrator of the deceased part- 
 ner, on giving the bond prescribed for him, is entitled to the possession 
 of the partnership estate for administration; and may maintain replevin 
 therefor against an officer who has attached such estate in an action by a 
 creditor of the firm, against the surviving partner. Putnam v. JParker, 
 LV. 235. 
 
 8. The married daughter of a testator, named in his will as the sole 
 executrix thereof, may, with the consent of her husband, be appointed 
 executrix, and take upon herself and execute such trust. R. S., c. 64, § 
 17, is not applicable to such a case. Stewart, appellant, lvi. 300. 
 
 See Abatement, 14. 
 
 GrXTAEDIASr, &C., 11. 
 
 (b) Generally. 
 
 9. Where one, in his capacity of executor, had collected of the United 
 States a sum of money, which had been paid under the treaty with Mex- 
 ico ; it was held, not to be new assets accruing and coming into his hands 
 after the decease of his testator, but should be deemed to be the avails of 
 a claim in the nature of a debt due to the testator at the time of his de- 
 cease, and afterwards collected through the medium of the government. 
 Thurston v. Doane, xlvii. 79. 
 
 10. The remedy of a person alleging that he was interested with the 
 testator in the claims to indemnity, and is entitled to a share of the 
 money collected, is against the executor, in his capacity as such. So, too, 
 if the money should be regarded as new assets. Thurston v. Doane, 
 XLvn. 79. 
 
 11. Where the plaintiff thus brought his action, in which the statute 
 of limitation prevented his recovering, and he afterwards sued the execu- 
 tor, but not in his representative character, claiming to recover of him, 
 on the ground that the money was paid to him wrongfully and by mis- 
 take. Held, that having elected to enforce his demand against the exec- 
 utor, as such, and having full knowledge that he was prosecuting the 
 claim as one due to his testator, and acquiesced therein ; and knowing, 
 too, that the executor had inventoried and accounted for the money as 
 assets of the testator's estate, without objection, he would thereby be 
 estopped to recover, even if there were no legal objections to his main- 
 taining his action. Thurston v. Doane, xlvii. 79. 
 
 12. Money due for rent, which accrued prior to a testator's death, goes 
 to the executor as part of the estate ; but rent afterwards accruing, if the 
 estate be solvent, belongs to the heirs or devisee. Mills v. Merryman, 
 xLix. 65. 
 
 13. The executor has no claim to after-accruing rent, so that he may 
 collect it, to reirtiburse himself for payments made to a co-tenant of the 
 rented premises, for his share of the rent collected by the testator ; the 
 co-tenant's claim creating no lien on this particular portion of the testa- 
 tor's estate. Mills v. Merryman, xlix. 65. 
 
 14. Where a judge of probate, under the statute authorizing a specific 
 distribution of personal property in certain cases, has issued a warrant for 
 an appraisal of a part of a vessel belonging to an estate, and ordered a dis- 
 
236 EXECUTOR AND ADMINISTKATOE. 
 
 tribution thereof amongst the heirs in spec-fled proportions, and this has 
 been done accordingly, and a return made, accepted, and recorded, the 
 title passed thereby, and the probate records are sufficient muniments of 
 title, without any formal transfer of the several parts distributed. Bose v. 
 O'Brien, l. 188. 
 
 15. A decree of the judge of probate ordering distribution and payment 
 of the balance in the hands of the administrator on the settlement of his 
 last preceding account, passed on the same day the return of the specific 
 distribution was accepted, does not annul the latter, nor require that the 
 share of the estate in the vessel should be sold and distributed in money, 
 Bose V. O'Brien, l. 188. 
 
 16. The right which the administrator has by statute to set off any 
 claim he may have in his official capacity upon one of the heirs, against 
 the distributive share of such heir, does not apply to articles of personal 
 property ordered by the judge to be speciflcally distributed to such heir. 
 Bose V. O'Brien, l. 188. 
 
 17. Neither does the administrator's right of set-off create a lien upon 
 any article of personal property specifically distributed to such heir 
 under the decree of the judge of probate. Bose v. O'Brien, l. 188. 
 
 18. If an executor, for a note belonging to the estate of the testator, 
 take a new one payable to himself and collect it by a suit in his own 
 name, and the proceeds have never been mingled with other property, 
 but have remained in the hands of the attorney collecting them ; he will 
 be entitled to the same in his capacity of executor, although the attorney 
 has been summoned as his trustee, in a suit by one of his creditors. Boil- 
 ton V. Bolton, LI. 170. 
 
 19. On an appeal from the decree of a judge of probate, made on a pe- 
 tition under R. S., c. 71, § 17, to empower an administrator to execute a 
 deed to carry into effect a legal contract made by the deceased, Mdd, 
 (1) The statute refers only to legal contracts, in force at the death of the 
 obligor, the performance of which was by his death prevented ; and 
 (2)_ That the provisions of the statute cannot apply to verbal contracts,- 
 void by the statute of frauds. Bates v. Sargent, li. 423. 
 
 See Peobate Couet, 26, 27. 
 
 n. SUITS BY AND AGAINST, 
 (a) When maintainable. 
 Vo) Pleadings, pbacticb, &c. 
 
 (a) When maintainable. 
 
 20. An action brought under the statute, to recover against a town for 
 a personal injury caused by a defect in its highway, and which action was 
 pending when R. S., c. 87, § 8 took effect, will not, after that time, abate 
 by the death of the plaintiff, but may be prosecuted by the executor or 
 administrator of the deceased. Hooper v. Gorham, xlv. 20&. 
 
 21. Under R. S. of 1841, an action could not be sustained, which was 
 brought by an administrator against one for aiding a debtor of the plain- 
 tiff's intestate, in the fraudulent transfer of his property, contrary to the 
 statute in that behalf provided, as the cause of action does not survive. 
 Smith V. Estes, xlvi. 158. 
 
EXECUTOE AND ADMINISTRATOR. 237 
 
 22. R. S. of 1841, c. 120, § 24, is a conclusive bar against any process 
 commenced by creditors of the estate of a deceased person, in case of new 
 assets, after the expiration of four years from the time such assets actu- 
 ally came into the hands of the administrator. Thurston v. Lowder, 
 
 XLYII. 72. 
 
 23. And the statute applies as well to any process in the probate court, 
 as to suits at law. Thurston v. Lowder, xlvii. 72. 
 
 24. A claim will be subject to this limitation, notwithstanding it has 
 been allowed by the commissioners of insolvency, and in no part paid, for 
 want of any estate to be divided. Thurston v. Xiowder, xlvii. 72. 
 
 25. Where a minor had been for some years at work on his own ac- 
 count, and died leaving no widow, issue, or father surviving, his adminis- 
 trator may maintain an action for money had and received, against one 
 who has collected his wages ; and it is no defense that such person acted 
 as agent for the mother of the minor, and paid what he collected to her, 
 and that she distributed it amongst some of the minor's heirs. Snow v. 
 Snow, XLix. 159. 
 
 26. An action, in the name of the husband and wife for injuries sus- 
 tained by her, survives ; and the husband may withdraw, that the admin- 
 istrator may come in and prosecute. Nbrcross v. Stuart, l. 87. 
 
 27. In such a case, the husband cannot be considered a party after the 
 death of the wife ; but, if made her administrator, he may prosecute in 
 that capacity. Nbrcross v. Stuart, l. 87. 
 
 28. No one but the payee or his personal representative can maintain 
 an action upon an unindorsed negotiable promissory note. Brown v. 
 Nourse, lv. 230. 
 
 See Estoppel, 27. 
 
 (b) Pleadings, practice, &c, 
 
 29. By virtue of R. S. of 1857, c. 64, § 82, an executor de son tort may 
 retain whatever sums actually paid by him, which, if withdrawn from 
 his hands, the rightful administrator or executor would be compelled to 
 pay. Tobey v. Miller, lit. 480. 
 
 30. Where an administrator of the estate of a defendant, who died 
 during the pendency of the suit, after having represented the estate as 
 insolvent, has appeared in the suit as the representative of the deceased 
 party, it is his duty to have the proceedings in insolvency made to ap- 
 pear upon the record in this court, in order that the proper judgment 
 may be entered up. Thompson v. Dyer, lv. 99. Frost v. llsley, liv. 
 345. Wyman v. Fox, lv. 523. 
 
 31. But if no suggestion of the insolvency <Jr prayer for the stay of ex- 
 ecution be made, and a judgment be awarded against the estate of the 
 intestate in the hands of the administrator, and execution be issued in 
 due course, the receipter cannot impeach the correctness of such judg- 
 ment in an action on the receipt. Thompson v. Dyer, lv. 99. 
 
 32. In this State, the rule does not require that the writ should set out 
 where, or by what authority the administration was granted. Brown v. 
 27'our'se, lv. 230. 
 
 33. In the trial of an appeal from the decision of commissioners of in- 
 solvency, the plaintiff cannot recover in his own name upon an unin- 
 
238 FELONY. — FENCE. 
 
 dorsed negotiable promissory note signed by the intestate, and made 
 payable to a person other than the plaintiff, in the absence of any proof 
 of a promise by the maker to pay it to the plaintiff. Gould v. Carlton, 
 LV. 511. 
 
 EXEMPTION. 
 
 See Attachment, "2, 7, 8, 9, 10, 14, 20, 21, 22. 
 
 EXPERTS. 
 
 See Evidence, 41-58. 
 
 EXTENT. 
 
 See Execution. 
 
 ♦ 
 
 FALSE PRETENCES. 
 
 See Cheating bt false peetencbs. 
 
 FELONY. 
 
 _ Crimes referred to in R. S. 131, § 9, as punishable in the State prison, 
 include, not only those which must be, but also those which are liable to 
 be thus punished. State v. Mayberry, XLvm. 21€. 
 
 FENCE. 
 
 , ^- }'^. an action of trespass q^lare clausum for breaking and entering 
 the plaintiff s close, by the defendant's cattle, in order to sustain the de-' 
 tense that the cattle were lawfully on the adjoining close, and escaped 
 therefrom m consequence of the plaintiff's neglect to maintain his part 
 ot the partition fence, it tnust appear that there has been a division of 
 ttie tenoe, either by fence-viewers, by a valid agreement between adjoin- 
 ing owners, or by prescription. JShox v. Tucker, xLvm 373 ' 
 
FINTSS. FIEE. 239 
 
 2.. The division must be suoh as to impose on the plaintiff the obliga- 
 tion to build and maintain a legal fence, upon a certain, well-defined por- 
 tion of the line. Knox v. Tuclcer, xlviii. 373. 
 
 3. If there has been no such division of the fence, each party is bound, 
 at his peril, to keep his cattle upon his own land. Knox v. Tuclcer, 
 XLVIII. 373. Bradbury v. Gilford, liii. 99. 
 
 4. An agreement for the division of the line fence, by adjoining own- 
 ers, in order to be binding on them and their privies, must be in writing. 
 Knox V. Tuclcer, xlviii. 373. 
 
 5. Where a line fence was built in separate portions by the adjoining 
 owners, and maintained by them in the same manner for more than 
 twenty-five years, some agreement or grant, by which a legal division of 
 the fence was established, may well be presumed. Knox v. Tucker, 
 XLVIII. 373. 
 
 6. An action under R. S., c. 22, § 4, to recover double the price of build- 
 ing the defendant's part of a divisional fence, is prematurely brought, if 
 commenced before the expiration of "one month after demand." San^ 
 ford V. Mxskell, l. 86. 
 
 7. Where there has been no statutory assignment of a partition fence, 
 between two adjoining lots of land owned by different parties, or between 
 those from whom they respectfully derive their title, each is bound to 
 keep his cattle on his own land at his peril. Bradhury v. Gilford, Lm. 
 99. 
 
 See Assumpsit, 15. 
 
 Case, 8.' 
 
 FINES. 
 
 When notes are taken for fines and costs, as provided by R. S. of 1841, 
 c. 175, if not paid voluntarily, they must be collected, wholly or partially, 
 or canceled, in the manner provided by c. 152, §§ 28, 29, and 30. Bates 
 V. Butler, xlvi. 387. 
 
 See Bills, &c., 29, 30. 
 Complaint, 15. 
 
 FIRE. 
 
 1. Section 16 of o. 26 of R. S. of 1857, is not in abrogation of the 
 common law, but a substantial affirmance of it. Mewey v. ITourse, liv 
 256. 
 
 2. In a case under that action, for damages caused by the spreading 
 of a fire kindled by the defendant on his own land, an instruction that, 
 if the defendant was in any fault in setting or guarding the fire, at any 
 time before it was blown by the violent wind upon the plaintiff's land, 
 and, in consequence of such fault, the wind carried the fire there, then 
 
240 FISHERY. FIXTURE. 
 
 the defendant would be liable, although after it was so blown, it was be- 
 yond human control until the plaintiff's property was destroyed, is unex- 
 ceptionable on the part of the defendant, it being predicated upon the pre- 
 sumption that the presiding judge gave the proper instruction as to 
 the " fault " mentioned. Hewey v. Nburse, lit. 257. 
 
 3. A person, kindling a fire upon his own land, for purposes of hus- 
 bandry, is responsible for damages occurring in consequence of a want 
 of ordinary care in guarding it. Sewey v. Nburse, lit. 257. 
 
 See Action, 35. 
 
 Amendment, 14. 
 Costs, 51. 
 Practice. 84. 
 
 FISHERY. 
 
 1. The right to take fish in the tide-waters of the Kennebec river, is a 
 public and common right ; and no one can maintain an exclusive privi- 
 lege to any part of such waters, unless he has acquired it by grant or by 
 prescription. Preble t. Brown, xltii. 284. 
 
 2. Seamen in the mackerel fishery, in the. absence of any express con- 
 tract, are neither partnei's in, nor part-owners of the fish caught during 
 a mackerel voyage. They haTe only a pecuniary claim to the proceeds. 
 Lewis V. Chadbourne, lit. 484. 
 
 3. An action of debt for the penalty provided for in the Special Laws 
 of 1826, c. 147, and Special Laws of 1844, c. 105, cannot be maintained 
 unless it appear that the persons prosecuting as the fish committee were 
 duly sworn as is provided in the former act. Fassett v. Oeyer, lv. 160. 
 
 FIXTURE. 
 
 1. Machinery attached to a mill by spikes, bolts, and screws, and ope- 
 rated by belts running from the permanent shafting driven by the water- 
 wheel under the mill, becomes a part of the realty. Symonds v. Sen"- 
 ris, LI. 14. 
 
 2. When chattels are so far annexed to the freehold as to become 
 fixtures, they pass to a granter of the land unless expressly excepted in 
 the conveyance ; but, if he was aware that the fixtures had been annexed 
 by a lessee, then in possession, he would acquire no right by the con- 
 veyance to prevent the removal of them by. the lessee before the expira- 
 tion of his lease. Davis v. Buffum, li. 160. 
 
 3. All fixtures are, for the time being, part of the freehold ; and, if any 
 right to remove them exists in the person erecting them, this must be 
 exercieed during the term of the tenant ; and if this is not done, the 
 
FLATS. FORCIBLE ENTRY AND DETAINER. 241 
 
 right is lost, and trover cannot be maintained for a refusal to give them 
 up. Davis V. Buffum, li. 160. 
 
 4. A marine railway, consisting of iron and wooden rails and sleepers, 
 endless chain, gear, wheels, and ship cradle, and constructed in the usual 
 manner, is a fixture, and will pass by a levy upon the realty. Strick- 
 land V. Parker, lit. 263. 
 
 FLATS. 
 
 1. The term "beach," when used in reference to places near the sea, 
 means the land between the lines of high-water and low-water, over 
 which the tide ebbs and flows. Hodge v. JBoothhy, xLvm. 68. 
 
 2. The principle of law, that a deed of land adjoining a stream or body 
 of water carries with it adjoining flats, applies to islands as well as to 
 the mainland, and to conveyances made after as well as before the colo- 
 nial ordinance of 1641. Hill v. Lord, XLvm. 83. 
 
 3. Open, notorious, exclusive, and adverse possession of upland adja- 
 cent to flats, and of portions of the flats, for twenty years, under a deed 
 duly recorded, gives a title to all the flats fronting such upland, and de- 
 scribed in the deed. Brackett v. Persons Unknown, Lin. 228. Brackett 
 v. Persons Unknown, Lin. 238. 
 
 See DowEE, 11. 
 
 FORCIBLE ENTRY AND DETAINER. 
 
 1. The process of forcible entry and detainer, as provided by R. S., c. 
 &4, does not seem to be adapted to a case where the relation of mortga- 
 ger and mortgagee exists ; for the person in possession, with right to re- 
 deem, should not be regarded as a disseisor, within the true sense of the 
 statute. Beed v. Elwdl, xlvi. 270. 
 
 2. In a complaint for forcible entry and detainer against a tenant at 
 will, it is not necessary to allege or prove that the relation of landlord 
 and tenant existed between the parties at the time of the service of no- 
 tice to quit. Dunning v. Finson, xlvi. 546. 
 
 3. Such a tenancy at will as R. S., e. 94, § 2 contemplates, may exist, 
 where there is no such relation as would authorize a suit for rent, or con- 
 fer the respective rights of landlord and tenant. Dunning v. Finson. 
 XLVI. 546. 
 
 4. A. bargained for a house, but had it conveyed to B. as security for 
 a loan, taking a bond from B. to convey to him on payment. The bond 
 expired. C. rented the house of A., and afterwards took a quitclaim of 
 his right, at th-e same time agreeing orally with B. for a deed from him 
 at a price named. Held, that C. was tenant at will, under B., although 
 he had oveipaid rent to A. Dunning v. Finson, xlvi. 546. 
 
 16 
 
242 FOECIBLE ENTEY AND DETAINER. 
 
 5. Sections 1 and 2, c. 94 R. S., relate only to the process of forcible en- 
 try and detainer and to the notices required for its maintenance. Gor- 
 don V. Gilman, xlviii. 473. 
 
 6. In a case of forcible entry and detainer, where the magistrate ad- 
 judges the defendant guilty, and he enters an appeal, it is not necessary 
 that the recognizance shall require payment of such "reasonable rent of 
 the premises as the magistrate shall adjudge," if no rent is adjudged by 
 the magistrate to be payable. Merrill v. Hinckley, xlix. 40. 
 
 7. But where a recognizance contains requirements which are not 
 sanctioned by the existing statute, it is defective, and the appeal will be 
 dismissed. Merrill v. HincMey, xlix. 40. 
 
 8. Under R. S., c. 94, § 8, a recognizance requiring the appellant to 
 " appear " at the appellate court, prosecute his appeal " with effect," re- 
 cover back possession of the " premises," and pay all intervening " dam- 
 ages " and costs, in case he does not recover possession, is unauthorized 
 and illegal. Merrill v. Hinckley, xlix. 40. 
 
 9. A complaint for forcible entry and detainer must disclose enough 
 upon its face to give the court jurisdiction without a resort to parol tes- 
 timony. Treat y.J8ent,-Li. '^Ti. 
 
 10. When the complaint shows that the complainant lives, in the 
 county in which the estate lies, it cannot be signed and sworn to by his 
 agent or attorney, unless it also shows that the complainant is "out of 
 the state, or sick, or, for other reasons, unable to attend personally be- 
 fore the court." Ireat v. Pierce, li. 478. 
 
 11. Where the complainant, holding mortgages of the premises in con- 
 troversy, consisting of a lot of land with a house on a portion of it, pur- 
 chased the respondent's right in equity to redeem, at a sheriff'-s sale of 
 the same on execution ; and, in the temporary personal absence of the 
 respondent, his family still being in the house, the complainant entered 
 peaceably and unobstructed into the possession of a part of the Innd, but 
 did not enter the house ; and, while so in possession, the respondent re- 
 turned and expelled him by force; Held, (1) That the sheriff's deed 
 conveyed to the complainant all of the title of the debtor in the prem- 
 ises; (2) That the complainant had a right to the immediate posses- 
 sion of the premises ; (3) That he obtained a lawful possession, and 
 seisin; (4) That, having gained possession of a part of the premises, he 
 might lawfully take possession of the residue, if it could be done with- 
 out a breach of the peace; (5) That the respondent disseised the com- 
 plainant; and (6) That the disseisin was such as to entitle the com- 
 plainant to the process of forcible entry and detainer. Dyer v. Chick, 
 Lii. 350. 
 
 12. In cases of forcible entry and detainer, parties are entitled to a 
 trial by jury only upon the issue of title. Of all other matters, the in- 
 ferior court has exclusive jurisdiction, from whose judgment an appeal 
 lies. Abbott v. Norton, liii. 158. 
 
 13. Where, in such case, the respondent pleaded the generalissne and 
 filed a brief statement of title in a third person under whom he claimed, | 
 and, at the trial at nisi prius, waived the brief statement and relied i 
 upon the general issue. Held, that the only question open to the re- 
 spondent was the question of title ; and, when the complainant put in 
 
 his title-deed, the complaint was sustained. Abbott v. itortonyhm. 158, 
 
FOEEIGN LAWS. FOEGERY. 
 
 FOREIGN LAWS. 
 
 243 
 
 1. A discharge of a debtor, under the insolvent laws of Massachusetts, 
 will bar an action in the courts of Maine, instituted by a citizen of Maine 
 against such debtor residing in Massachusetts, although the contract was 
 made, and, by its terms, to be performed in Massachusetts. Felch v. 
 JBugbee, xlviii. 9. 
 
 2. The indorsement of a negotiable note is a new contract between 
 the parties ; and where such note was made in Massachusetts by a cit- 
 izen of tliat State, and payable to another citizen of such State, "at 
 any bank in Boston," and by him indorsed to a citizen of Maine, before 
 maturity and before proceedings in insolvency, the rights of such in- 
 dorsee are not affected by a discharge of the maker in Massachusetts un- 
 der the insolvent laws of that State. Felch v. Bughee, XLvni. 9. 
 
 3. It is citizenship, and not the place of making or of performance, 
 that determines the legal rights of the parties. Felch v. Hughee, 
 
 XLVIII. 9. 
 
 4. An assignment of such debtor's property by the officers of the law 
 of Massachusetts, under the provisions of the insolvency act, will not op- 
 erate upon the debts or property in this State, so as to defeat the attach- 
 ment of a creditor who is a citizen of Maine, made subsequently to such 
 assignment. Felch v. Bughee, xlviii. 9. 
 
 See Attachment, 51. 
 
 FORGERY. 
 
 1. In indictments for forgery, the instrument alleged to be forged 
 should, when practicable, be set forth according to its tenor, by which is 
 intended an exact copy, and not according to its purport and effect, which 
 implies the import or substance only, ^tate v. Witham, xlvii. 165. 
 
 2. On the trial of an indictment for making and uttering a forged depo- 
 sition, for the purpose of procuring a divorce on the part of the respond- 
 ent from his wife. Held, (1) The jury are authorized to infer an intent to 
 defraud from the character of the instrument, if they find it to be forged ; 
 and a refusal to instruct the jury that "intent to defraud cannot be pre- 
 sumed from the simple fact of manufacturing or forging such deposition," 
 is not erroneous ; (2) The presiding judge properly declined to allow the 
 jury, at the request of the respondent, to take a copy of the revised stat- 
 utes to their room, and his requested instructions, which had been given 
 no further than they were embraced in the general charge; (3) It is not 
 necessary to allege in such indictment an intent to defraud any one of 
 property, nor on the trial to prove that the respondent intended to " de- 
 fraud his wife of money, or other property, or to do an injury unnecessa- 
 rily to her character." The statute against forgery is not so limited ; 
 
 (4) The belief of the respondent in the truth of the statements in the' 
 deposition, and the fact, that his object in forging it was to procure a 
 divorce, to which he believed himself legally entitled, are no defense ; 
 
 (5) A requested instruction, that the respondent could commit no fraud 
 
244 FKAUD AND FEAUDULENT CONVEYANCE. 
 
 in law upon his wife, was properly refused ; and (6) The indictment 
 need not allege who was intended to be defrauded ; nor the means to be 
 used in the commission of the fraud; nor the object to be accomplished 
 thereby ; nor contain the full contents of the libel for divorce. State v. 
 Kimball, l. 409. 
 
 3. The forging of any writing, by which a person might be prejudiced, 
 is forgery at common law. State v. Kimball, l. 409. 
 
 4. Our statute in relation to forgery and counterfeiting does not repeal 
 the common law, but merely prescribes a different punishment in the 
 cases enumerated in it, from that provided by the common law. State v. 
 Kimball, l. 409. 
 
 See Bills, &c., 116. 
 
 FRAUD AISTD FRAUDULENT CONVEYANCE. 
 
 I. FRAUD TS GBISTBEAL AND ACTIONS THEREFOR. 
 
 II. FRAUDULENT CONTRACTS. 
 
 III. FRAUDULENT CONVEYANCES. 
 
 IV. FRAUDULENT SALES OF PERSONAL PROPERTY. 
 
 For Fraud in Equity Proceedings, See Equity, 135-149. 
 
 L FRAUD IN GENERAL AND ACTIONS THEREFOR. 
 
 1. Where both parties have violated the law in making a contract, nei- 
 ther party can invoke the aid of the law to repudiate it. Greene v. God- 
 frey, XLiv. 25. 
 
 2. The indorsee and holder of a negotiable note indorsed prior to the 
 fraud against a fraudulent debtor has prima facie evidence of a just 
 claim against the debtor; and unless the indorsement is shown to have 
 been conditional, and the condition to have terminated, he may main- 
 tain an action against a third person who has knowingly aided the 
 debtor in transferring his property to prevent its being attached under 
 the provisions of R. S., of 1841, c. 148, § 49. Abbott v. Joy, xlvil 177. 
 
 3. When a contract, made in violation of law, has been executed, 
 courts will not lend their aid to compel one party to restore the other 
 to the condition which he held before the contract, unless the statute 
 has made some provision therefor. Andreios v. Marshall, xlviii. 26. 
 
 4. An action cannot be maintained under the provisions of the statute, 
 for knowingly aiding a debtor in the fraudulent concealment and trans- 
 fer of his property, where the transfer, alleged to be fraudulent, is of the 
 right of redeeming property mortgaged to secure debts vastly exceed- 
 ing its value, and the equity of redemption, therefore, is utterly worth- 
 less. Veazie v. Boynton, xlix. 24. 
 
 5. In an action, brought under the statute, for aiding a debtor in the 
 fraudulent transfer of certain property, an amendment will not be al- 
 lowed of an additional count alleging a fraudulent transfer of other 
 property under which the damages claimed were not in any part em- 
 braced in the first count. Skowhegan Bank v. Cutler, xlix. 315. 
 
FRAUD AND FRAUDULENT CONVEYANCE. 245 
 
 6. The taking of a negotiable promissory note by the debtor, in settle- 
 ment of a debt due him on account, even if done to prevent its attach- 
 ment upon trustee process, is not a " transfer " within the meaning of 
 the statute. Skowhegan Bank v. Cutler, xlix. 315. 
 
 7. Nor would a transfer of the note, by indorsement, render the in- 
 dorsee liable ; for the note could not be attached, or sold on execution. 
 Skowhegan Bank v. Cutler, xlix. 315. 
 
 8. Where the name of a party was inserted in a transfer, as vendee, 
 without his knowledge, if he afterwards ratified it, by accepting it, the 
 transfer, until then operative, was perfected ; and, if fraudulent, he is lia- 
 ble. Skowhegan Bank v. Cutler, xlix. 315. 
 
 &. To hold the transferree of bank-stock liable under R. S. of 1857, c. 
 113, § 47, it must appear that the transfer was duly recorded, that the 
 sale was consummated and valid against all persons except on the 
 ground of fraud. Skowhegan Bank v. Cutler, xlix. 315. 
 
 10. The holder of a note given by a fraudulent grantor before, but not 
 purchased until after, may impeach the conveyance. Warren v. Wil- 
 liams, Lii. 343. 
 
 11. A person who is not a party or privy thereto may collaterally im- 
 peach a judgraent.contraveninghis rights, whenever it has been obtained 
 by fraud or collasion, or when the court rendering it had no jurisdiction, 
 or when unlawfully entered up. SidensparkerY. Sidensparker, lii. 481. 
 
 12. Where the proprietor of a certificate of five shares of capital stock 
 indorsed upon it the transfer of the "within share" to the defendant, 
 and, upon the certificate of one share, the transfer of the " within 
 shares ;" and the defendant afterwards surrendered the certificates and 
 took one for six shares, which he transferred by indorsement and deliv- 
 ery to another without controversy, and no question has been raised be- 
 tween the parties. Held, that in an action by a creditor of the original 
 proprietor of said shares, against the defendant, for aiding the proprietor 
 in a fraudulent transfer and concealment of his property in said shares, 
 he will not be permitted to deny his title. Skowhegan Bank v. Cutler, 
 LII. 509. 
 
 13. In an action by a creditor against the defendant for aiding a 
 debtor in the fraudulent transfer and concealment of his property, the 
 jury are not authorized to give the plaintiff interest from the date of the 
 writ. Skowhegan Bank v. Cutler, lii. 509. 
 
 14. Two or more persons severally signing a promissoiy note as sure- 
 ties cannot maintain a joint action on the case against a person who sub- 
 sequently aids or assists their principal in a fraudulent transfer or con- 
 cealment of his property, to secure it from creditors, although, after such 
 conveyance, they became joint creditors by the joint payment of the 
 note. Bunker v. Tufts, lv. 180. 
 
 15. A creditor who has assigned his account against his debtor to a 
 third person, in consideration of a sum less than the whole amount due 
 thereon, cannot maintain an action against such third person under R. S. 
 1857, c. 113, § 47, for assisting such debtor " in a fraudulent transfer and 
 concealment of his property," unless he first rescind the assignment and 
 tender back the whole consideration received. Percival v. Hichborn, 
 LVI. 575. Percival v. Harlow, lvi. 575. 
 
 See Action, 37. 
 
 Evidence, 130-133. 
 
246 FKAUD AND FEAUDTTLENT CONVEYANCE. 
 
 II. PKAUDULENT CONTRACT. 
 
 16. A creditor who had been induced, by the fraud and deceit of his 
 debtor, to take a certain article in payment and discharge of his account, 
 having afterwards discovered the fraud, brought an action on the ac- 
 count, without returning or offering to return the article named. Ildd, 
 that the action could not be maintained, the property having been re- 
 ceived in payment of the demand, and not for an indefinite sum there- 
 after to be ascertained. Garland v. Spencer, xlvi. 528. 
 
 17. The remedy, in such case, there TDcingno rescission of the contract, 
 is by an action on the defendant's warranty, if any was made, or by an 
 action on the case for damages sustained by reason of the defendant's 
 fraudulent misrepresentations. Garland v. Spencer, xlvi. 528. 
 
 18. After a settlement of a demand by the payment of a sum less than 
 that due before he can maintain a suit on the original cause of action, on 
 the ground of fraud on the part of the debtor, the creditor must rescind 
 the contract of settlement, and tender to the debtor whatever sum he 
 had paid in effecting it. jiisiee v. Ham, xlvii. 543. 
 
 19. Fraud will be inferred when the party makes a representation 
 which he knows to be false, or as to which he has no information and no 
 grounds for expressing his belief Wheelden v. Lowell, l. 499. 
 
 20. If he make statements as absolute facts not knowing whether true 
 or false, they are fraudulent. Wheelden v. Lowell, l. 499. 
 
 21. The defendant loaned a sum of money and received for security 
 thereof a warranty deed of land from the borrower, who being called up- 
 on for repayment, negotiated a loan of the plaintiff, and agreed to give 
 him the same security. All the parties met, and thereupon the plaintiff 
 furnished the money with which to pay the defendant, and presented 
 him with, and requested him to sign a deed of warranty from the defend- 
 ant to the plaintiff, and thus save the expense of two deeds, assuring 
 him that that was " the correct way to do business," and that the bond 
 for reconveyance, executed by the plaintiff to the borrower, "would clear 
 the defendant from anything." In an action of covenant broken. Held,, 
 that the defendant's deed was not obtained by fraudulent representation. 
 Grant v. Grant, lvi. 573. 
 
 22. A person holding a warranty deed of land as security for a loan is 
 not chargeable with fraud if, in order to obtain payment, he, at the re- 
 quest ot the other parties, gives a warranty deed of the same land to a 
 third person who furnishes money to pay the original loan, although the 
 title proves not to be good, if it does not appear that he knesv of the de- 
 fect. Grant v. Grant, lvi. 573. 
 
 See Replevin, 18. 
 
 III. FEATTDTILENT CONVEYANCES. 
 
 23. Where one has possession of mortgaged property as the agent of 
 the mortgagee, he cannot be regarded as having in his possession any 
 goods, effects, or credits, which he holds under a conveyance fraudulent 
 and void, as to the defendant's creditors, for he has no conveyance from 
 him. Such a case is not within R. S. c. 86, § 63. Skowhegan Bank v. 
 Farrar, xlvi. 293. 
 
FEAUD AND FEAUDULENT CONVEYANCE. 
 
 247 
 
 24. The provision in R. S. of 1841, c. 161, § 2 (R. S., c. 126, § 2), mak- 
 ing a transfer of property with intent to delay or defraud creditors, or 
 defraud prior or subsequent purchasers or other persons, criminal in both 
 parties, does not so far repeal or modify former statutes, as to make such 
 transfer void as between the parties when actually perfected. Andrews 
 V. Marshall, xlviii. 26. 
 
 25. By virtue of R. S., c. 61, § 1 (the provisions of which are in affirm- 
 ance of well-established doctrine in equity), real estate, paid for by a 
 debtor, and conveyed to another with intent to defraud creditors, is lia- 
 ble to be taken for the payment of debts contracted before said convey- 
 ance. Dockray v. Mason, xlviii. 178. 
 
 26. A conveyance will not be held to be fraudulent and void as to 
 creditors, although the motives of the vender were fraudulent, unless the 
 vendee had knowledge of the fraudulent intention, and assisted in carry- 
 ing it into execution. JBlodgett v. Chaplin, xlviii. 322. 
 
 27. Of the evidence necessary to show that a conveyance is fraudu- 
 lent and void as to creditors. Blodgett v. Chaplin, XLvm. 322. 
 
 28. A conveyance absolute in form only, for a consideration gro.ssly in- 
 adequate, the grantor retaining a valuable interest, made with the intent 
 by both parties to delay creditors, is void, as well against subsequent 
 creditors and bona fide purchasers, as against existing creditors, whether 
 they have notice of the fraud or not. Wyman v. Brown, l. 139. 
 
 29. A conveyance of real estate, by a director to the bank, based on 
 such obligation, and to make good a defalcation of the cashier, which had 
 occured, is without legal consideration, and a gift fraudulent in law, as 
 against prior creditors, unless it appear he has sufficient estate left to sat- 
 isfy their claims. Jose v. Hewett, l. 248. 
 
 30. If a debtor purchase real estate, and cause the conveyance to be 
 made to a third person, it creates a resulting trust in favor of the pur- 
 chaser. And such an estate cannot be attached, or levied upon, by a cred- 
 itor of the cestui que trust. Corey v. Greene, li. 114. 
 
 31. TJnder our statutes, a creditor may levy upon real estate, which 
 the debtor, having had the legal title thereto, has fraudulently conveyed. 
 Hall V. Sands, lii. 355. 
 
 32. Such land may be attached as well in actions of tort as of con- 
 tract, and held as against subsequent conveyances. Hall v. Sands, lu. 
 355. 
 
 33. By the statute 13 Eliz., c. 5, a fraudulent conveyance, for a valua^ 
 ble consideration, is void as to all persons liable or intended to be injured 
 thereby. Hall v. Sands, lii. 355. 
 
 34. And if it is both fraudulent and voluntary, so as to raise the pre- 
 sumption of a secret trust, it is a continuing fraud, and void both as to 
 existing and subsequent creditors. Hall v. Sands, lii. 355. Marston 
 V. Marston, liv. 476. 
 
 35. A fraudulent conveyance, for a sufficient consideration, is void as 
 to subsequent creditors only when it was made for the purpose of de- 
 frauding them. Hall v. Sands, m. 355. « 
 
 36. A plaintiff in an action of tort, attaching real estate which the de- 
 fendant had previously mortgaged, can avoid the mortgage only by show- 
 ing that it was fraudulent as to him. Hcdl v. Sands, lu. 355. 
 
248 FRAUD AND FRAUDULENT CONVEYANCE. 
 
 37. In such case, an instruction, "that, if the mortgage was fraudulent, 
 it could only be avoided, on that ground, by the then existing creditors 
 of. the grantor," is erroneous. Hall v. Sands, lii. 355. 
 
 38. If such mortgage was intended to delay or defraud subsequent 
 creditors, it is voidable as to them ; and the question of fraudulent in- 
 tent is one of fact for the jury. Hall v. Sands, lii. 355. 
 
 39. Forbearance to collect a witnessed promissory note for the period 
 of nineteen years, will not constitute a waiver of the payee's right to 
 satisfy a judgment founded upon the note, by a levy upon land fraudu- 
 lently conveyed by the judgment debtor. SidensparJcer v. Sidemparker, 
 Ln. 481. 
 
 40. What will coqstitute a secret trust in a conveyance between father 
 and son. SidensparJcer v. SidensparJcer, lii. 481. 
 
 41. A conveyance made without consideration, and for the purpose of 
 defrauding creditors, is void as well as against subsequent as prior cred- 
 itors of the grantor. Marston v. Marston, liv. 476. 
 
 See Assumpsit, 6. 
 Evidence, 121. 
 
 IV. PEAUDTJLENT SALES OE PERSONAL PEOPBKTY. 
 
 42. If a mortgage of personal estate be received by the mortgagee for 
 the honest purpose of securing a debt due from the mortgager, or to pro- 
 tect himself from liabilities which he had assumed for the mortgager, 
 and for no other purpose, the law will uphold it. WJieelden v. Wilson, 
 
 XLIV. 11. 
 
 43. But if it be received for the purpose of aiding or assisting the 
 mortgager to defraud or delay his creditors, or if such purpose consti- 
 tuted any part of the motive which induced him to take the mortgage, 
 then it is fraudulent and void as to creditors. WJieelden v. Wilson, 
 
 XLIV. 11. 
 
 44. Facts and circumstances clearly indicating an intention on the part 
 of both mortgager and mortgagee to place the mortgaged property be- 
 yond the reach of legal process, and thereby delay, if not defeat credi- 
 tors, constitute a legal fraud, which may overcome the denial of the mort- 
 gager of a fraudulent motive on his part. WJieelden v. Wilson, xliv. 11. 
 
 45. In the case of a fraudulent mortgage of chattels executed and com- 
 pleted, the record of the mortgage is equivalent to a delivery of the 
 goods, and passes the title to the mortgagee, so far as to enable him to 
 maintain an action against an officer for the value of the goods attached, 
 and sold at private sale, without any account having been kept, though 
 sold with the assent of the mortgager in whose possession the goods were 
 found when attached. Andrews v. MarsJiall, XLvni. 26. 
 
 46. A. made a fraudulent mortgage of goods to B., which was duly 
 recorded. A.'s creditors attached the goods, and they were sold by the 
 o^er, by consent of A. and the attaching creditors ; but a part of them 
 were sold at private sale, and no account of sales kept. Held, that B. may 
 maintain an action against the officer for the value of that part of the 
 goods thus irregularly sold. Andrews v. MarsJiall, xlviii. 26. 
 
FRAUD AND FRAUDULENT CONVEYANCE. 
 
 249 
 
 47. A. having in his possession a horse belonging to a third person, 
 sold hitn to P. by exchange for another horse, without disclosing his 
 want either of title in, or authority to sell him. As between the parties, 
 such concealment rendered the sale fraudulent. Abbott v. Marshall, 
 XL Tin. 44. 
 
 48. If A. had previously mortgaged the horse, and induced P. in igno- 
 rance of that fact, to purchase him by exchange for another, the trade, as 
 between the parties, might be rescinded by P., who would be bound to 
 restore the horse received by him, unless prevented by the rightful 
 owner's taking the horse from him ; or, unless there were other circum- 
 stances in the case, that would excuse him from doing so. Abbott v. 
 Marshall, XLvni. 44. 
 
 49. And if after such exchange, and before P. has discovered the 
 fraud, A. mortgaged the horse he received from him to a third person, to 
 secure only preexisting debts and liabilities, (which are aifected in no way 
 but by being thus secured), the mortgagee is not in the character of an 
 innocent purchaser, for a valuable consideration, so as to set up title 
 against the original owner of the horse. Abbott v. Marshall, xlviii. 44. 
 
 50. Yet, if as an inducement and consideration for giving the mort- 
 gage, the mortgagee had agreed with A. to give him further time for pay- 
 ment of the debt due to him, and also agreed to pay certain notes where 
 he was surety for A. and wait on him for repayment, although there was 
 no time for waiting specified, these facts will place the mortgagee in a 
 new relation, so that he may be regarded as an innocent purchaser, not 
 to be affected by the fraud of A. in the exchange of horses with P. Ab- 
 bott V. Marshall, xltiii. 44. 
 
 51. A bill of sale of personal property, absolute on its face, but in- 
 tended for collateral security only, is not fraudulent per se, but only a 
 circumstance tending to prove fraud. Shreve v. Fenno, xlix. 78. Em- 
 mons V. Bradley, lvi. 333. 
 
 52. Where, by the fraudulent representation of a purchaser, a contract 
 for the sale of a horse has been made, and the horse delivered, the vender, 
 having rescinded the contract, may peaceably enter into the premises of 
 the fraudulent vender, if not forbidden, and take his own horse. Wheel- 
 den V. Lowell, L. 499. 
 
 53. In what cases a fraudulent intent will be inferred from the declara- 
 tions of a party to a contract. Wheelden v. Lowell, l. 499. 
 
 54. An overstatement of their claim, by a comparatively small amount, 
 made by the mortgagees in their notice to an attaching officer, is not con- 
 clusive evidence of an intent to delay other creditors of the mortgager 
 Emmons v. Bradley, lvi. 333. 
 
 See Evidence, 209. 
 
250 FKAUDS, STATUTE OF. 
 
 FRAUDS, STATUTE OF. 
 
 I. TO ANSWER FOE THE DEBT, &c., OE ANOTHER. 
 
 II. EOR THE SALE OF LANDS, &c. 
 
 III. FOR THE SALE OF GOODS, &o. 
 
 IV. UPON AN AGREEMENT, NOT TO BE PERFORMED WITHIN 
 
 ONE YEAR. 
 
 I. TO ANSWER FOE THE DEBT, &c., OF ANOTHER. 
 
 1. If the defendant in a suit at law, at the request of a third person, 
 permits him to assume the defense, upon a promise of such tliird person, 
 to indemnify him and pay all costs recovered against him, such promise 
 is not within the statute of frauds, as being a promise to pay the debt of 
 another. Goodspeed v. Fuller, xlvi. 141. 
 
 2. Aliter, with a parol promise to accept an order from a debtor in 
 favor of his creditor, between whom and the maker of the promise there 
 has been no privity. Plummer v. Lyman, xlix. 229. 
 
 3. Although a written promise to accept a non-existing bill operates 
 as an acceptance, if the bill is drawn within a reasonable time, a ver- 
 bal promise to accept such a bill is not valid. Plummer v. Lyman, 
 XLIX. 229. 
 
 4. Where A. has a lien on a vessel for materials used in building it, 
 and B. holds the vessel to secure him for advances made to the builder, 
 a promise by B. to accept the order of the builder in favor of A., for the 
 amount of the latter's claim, cannot be enforced, unless it appears to, 
 have been made for some consideration, such as a discharge of A.'s lien 
 on the vessel, or his promise to discharge it, or to release his claim on 
 the builder. Plum/nier v. Lyman, xlix. 229. 
 
 5. The fact that the acceptance of the order would, by operation of 
 law, dischai-ge the lien, would not be a consideration tor a previous ver- 
 bal promise to accept it. Plunwner v. Lym,an, xlix. 529. 
 
 6. Where an assignee under the statute, having collected money for 
 the estate, in compliance with a previous agreement with his co-assignee 
 conveys property to a third person, upon the condition that the latter 
 shall pay the co-assignee the sum collected, and such person afterwards 
 promises the co-assignee to pay it to him, such promise is founded upon 
 a sufficient consideration, and is not within the statute of frauds. Per- 
 kins V. Hitchcock, xlix. 468. 
 
 7. A., being indebted to B., C. verbally promised B. to pay him the 
 amount, and charged it to A., without the latter's request or consent. 
 Held, (1) That B. not having released or assigned his debt, the promise 
 was without consideration ; and (2) Such a promise is within the stat- 
 ute of frauds. Richardson v. Williams, xlix. 558. 
 
 IL FOR THE SALE OF LANDS, &c. 
 
 8. Although a contract, not in writing, for the sale of land, is within 
 the statute of frauds, and cannot be legally enforced, it, nevertheless, is 
 
FRAUDS, STATUTE OP. 
 
 251 
 
 morally binding, and for the purposes of justice and equity, may, in 
 some cases, be upheld. Gammon v. Butler, xlviii. 344. 
 
 9. Thus, the party advancing money under such a contract cannot re- 
 cover it back, if the other party has the poveer and has been ready, on 
 his part, to perform the contract. Gammnon v. Butler, xlviii. 344. 
 Kneeland v. Fuller, li. 518. 
 
 10. Aliter, if the vender refuses to perform. Kneeland v. Fuller, li.- 
 518. 
 
 11. Three persons verbally agreed that, if either should be the pur- 
 chaser of a lot of land at an administrator's sale, they should all be 
 equally interested in the purchase, and that when the purchaser received 
 the deed, he should convey one-third to each of his associates. The 
 purchaser having refused to convey, on tender of one-third part of the 
 purchase-money by one of them, a bill in equity was brought to compel 
 a conveyance. Held, that equity would not afford relief, the agreement 
 being within the statute of frauds ; that the defendant did not hold the 
 land as trustee ; and that there was no resulting trust. Farnham v. 
 Clements, li. 426. 
 
 12. An unexecuted verbal agreement made by a mortgagee, for a valu- 
 able consideration, to discharge a mortgage by a release, is void by the 
 statute of frauds. Leavitt v. Pratt, liii. 147. Phillips v. Leavitt, lit. 
 405. 
 
 13. The mere writing of the price and the name of the purchaser of 
 real estate sold at auction, by the auctioneer, upon a slip of paper not 
 connected with any other papers, is not a sufficient signing within the 
 statute of frauds. Horton v. Mc Carty, liii. 394. 
 
 14. To bind the purchaser, a memorandum, containing all the essential 
 terms of the contract, must be made and signed by the auctioneer at the 
 time of the sale and before the termination of the proceedings. Horton v. 
 Mc Carty, mi. 394. 
 
 15. An oral agreement to execute and deliver a writing obligatory to 
 convey real estate, upon the terms and conditions therein mentioned, is 
 within the fourth clause of the statute of frauds. Lawrence v. Chase, 
 Liv. 196. 
 
 16. If the defendant would take advantage of that statute in an action 
 for the breach of such an agreement, he must do so by some plea. Law- 
 rence V. Chase, lit. 196. 
 
 17. A verbal contract for the sale of land is void. Plummer v. BucJc- 
 nam, lt. 105. 
 
 III. I-OE THE SALE OF GOODS, &c. 
 
 18. Where lumber is delivered on board of a vessel, in accordance with 
 a verbal bargain for it, and the vendee afterwards took possession of it, 
 claiming it as his own, he cannot set up the statute of frauds to defeat an 
 action brought by the vender to recover the price agreed upon for it. 
 Goddard v. Bemerritt, xlviii. 211. 
 
 19. Executory verbal contracts for the sale of goods, &c., for thirty 
 dollars or more, are withiu the statute of frauds. Edwards v. Grand T. 
 B. B. Co., xLvm. 379. 
 
252 FEAUDS, STATUTE OF. 
 
 20. Such contracts to furnish articles to be manufactured in a partic- 
 ular manner by the party contracting, are not within the statute. Ed- 
 wards V. Grand T. It. H. Co., xltiii. 379. 
 
 21. But the fact that the article contracted for does not exist at the 
 time of the contract, but is to be manufactured, will not, necessarily, take 
 the case out of the statute. It must also appear that the particular per- 
 son, who is to manufacture it, or the mode, or materials, enter into and 
 make part of the contract. Edwards v. Grand T. B. H. Co., xlviii. 379. 
 
 22. When a party contracting is bound to receive an article brought 
 or procured by the other party after the contract, it is within the statute. 
 Edwards v. Grand T. B. B. Co., xlviii. 379. 
 
 23. A verbal contract by a railroad company " to take all the wood " 
 the plaintiff " would put on the line of their road during the season, at 
 the same price they had paid him before for wood, or more, if the wood 
 was better," is within the statute. Edwards v. Grand T. B. B. Co., 
 XLVIII. 379. Edwards v. Ch-and T. B. B. Co., liv. 105. 
 
 24. In order to take the case out of the statute, there must be, not only 
 a delivery, but also an acceptance of the wood furnished, so that the buyer 
 can take no exception to the quantity or quality. Edwards v. Grand 
 T. B. B. Co., xlviii. 379. Edwards v. Grand T. B. B. Co., liv. 105. 
 
 25. Where, by the contract, the wood was to be " measured and in- 
 spected the next spring," there is no such acceptance as will take the con- 
 tract out of the statute, until such measuring and inspection. Edwards 
 V. Grand T. B. B. Co., xlviii. 379. 
 
 26. A contract, required by the statute of frauds and perjuries to be in 
 writing can receive no aid from parol evidence. Jenness v. Mount Hope 
 Iron Co., Liii. 20. 
 
 27. Delivery to and acceptance by the purchaser of any portion of the 
 goods bargained for will satisfy the statute of frauds. Atwood v. Lucas, 
 Lin. 508. 
 
 28. To constitute an acceptance of goods, something more than mere 
 words is necessary ; there must be some act of the parties amounting to 
 a transfer of the possession, and an actual receipt by the purchaser, so 
 that the seller no longer retains a lien for the price. Edwards v. Grand 
 
 T. B. B. Co., LIV. 105. 
 
 IV. UPON AN AGREEMENT, NOT TO BE PEEEOEMED ■WITHIK 
 ONE YEAE. 
 
 29. A verbal contract to support one during life, is not within the 
 statute of frauds, and is a sufficient consideration for a deed of real estate. 
 Hutchinson v. Hutchinson, xlvi. 154. 
 
 30. Where the defendant told the plaintiff he was not able to marry 
 her then, but would do so within four years ; it not appearing that the 
 parties understood that the promise was not to be performed within one 
 year, it is not within the statute of frauds. Lawrence v. Cook, lvl 187. 
 
 31. A contract of insurance for one year is not within the statute of 
 frauds. Walker v. Metropolitan Ins. Co., lvi. 371. 
 
GAMBLING. GIFT. — GOVBKNOR AND COUNCIL. 253 
 
 FUGITIVE SLAVE. 
 
 See Constitutional Law, 29. 
 
 GAMBLING. 
 
 1. Under R. S., c. 125, § 4, an action of the case for the recovery of 
 property lost in gambling, may be maintained without a previous demand. 
 Peyret v. Coffee, xlviii. 319. 
 
 2. The provision of R. S. c. 81, § 114, that the time of the defendant's 
 absence from the State " shall not be taken as a part of the time limited 
 for the commencement of the action," applies to actions upon the statute 
 to recover property lost in gambling. Peyret v. Coffee, XLVin. 319. 
 
 GIFT. 
 
 1. By R. S. c. 75, § 5, gifts and grants of real or personal estate to a 
 child or grandchild are deemed an advancement, when so expressed 
 therein, or charged as such by the intestate, or acknowledged in writing 
 to be such. Porter v. Porter, li. 376. 
 
 2. A note given by a son to his father, in the words following : " For 
 value received, I promise to pay Ezekiel Porter or order seven hundred 
 and thirty-three dollars and thirty-three cents without interest to be al- 
 lowed on settlement, no interest to be reckoned," cannot be construed as 
 intended as an " advancement," or to be acknowledged as such. Porter 
 V. Porter, li. 876. 
 
 3. Delivery is an essential element to be proved in establishing a title 
 by gift. Hanson v. Millett, lv. 184. 
 
 See Bounty, 14. 
 
 Donatio Causa Moetis. 
 
 GOVERNOR AND COUNCIL. 
 
 1. By the terms of the constitution, no money can be drawn from the 
 State treasury, but by warrant from the governor and councO, and in 
 consequence of appropriations made by law. Weston v. Dane, li. 461. 
 
 2. In the absence of an appropriation and warrant, the court will not 
 issue a mandamus to the treasurer commanding the payment of money 
 from the treasury, undei;^any circumstances. Weston v. Bane, li. 461. 
 
254 GEANU JURY. — rGUAKDIAN AND WARD. 
 
 3. A resolve of the legislature, authorizing the governor and council 
 to fix the compensation of an agent of the State for prosecuting claims, 
 is no appropriation. Weston v. Dane, li. 461. 
 
 4. A copy of the vote of the governor and council fixing such compen- 
 sation, attested by the secretary of State, is not the warrant contempla- 
 ted by the constitution. Weston v. Dane, li. 461. 
 
 See County Commissionek, 8. 
 Election. 
 
 GRAND JURY. 
 
 1. The venires for grand jurors need not direct the constables in what 
 manner they should notify the meeting in their towns for drawing the 
 jurors. State y. Olough,xhix. blS. 
 
 2. It is well, although not indispensable, that constables should state 
 in their returns what notice was given. State v. Olough, xlix. 573. 
 
 3. A person drawn as a grand juror, without any notice to the inhabi- 
 tants of the town, and with only a verbal notice to the municipal officers, 
 has no authority to act as such, although duly sworn. State v. Olough, 
 XLIX. 573. 
 
 4. A person competent to serve as traverse juror is competent to serve 
 as grand juror. State v. Quimby, li. 395. 
 
 5. Officers of the United States, although by our statutes they have 
 the right to be excused from serving as jurors, are not disqualified to act 
 as such. State v. Quimby, li. 395. State v. Wright, Lin. 328. 
 
 6. Exemption is not disqualification, but a personal privilege of the 
 person exempted which he may waive ; and if he does so, parties have no 
 ground of complaint. State v. Wright, liii. 328. , 
 
 See Abatement, 13, 21. 
 
 GUARANTY. 
 
 See Conteact, 38, 39. 
 
 GUARDIAN AND WARD. 
 
 1. Under the statute of this State, a guardian, as such, cannot be sum- 
 moned and holden as trustee of his ward. Hanson v. Butler, xltiii. 
 81. Somstead v. Loomis, liii. 549. 
 
GUARDIAN AND WARD. 255 
 
 2. A guardian is not authorized to make advances from hia own means 
 for the maintenance of his ward, but is bound to provide for such main- 
 tenance from the income, and (if necessary) the principal of the ward's 
 personal estate ; and if these prove insufficient, to obtain a license and 
 sell real estate of the ward to provide the means required. Preble v. 
 Longfellow, XLvin. 279. 
 
 3. A guardian cannot, by making advancements for his ward's support, 
 make the ward his debtor upon arriving at full age ; and an action can- 
 not be maintained by the guardian against his late ward, when of age, 
 to obtain remuneration for such advances, nor for a balance due him on 
 his guardianship account as adjusted and allowed by the probate court. 
 Preble v. Longfellow, XLvm. 279. 
 
 4. Whatever disability was imposed upon a person under the statute 
 of 1821, by the appointment of a guardian over him as a non compos, 
 without a previous formal decree as to his mental condition, was removed 
 by the subsequent discharge, by the judge of probate, of such guardian 
 upon his own petition and without notice. Hovey v. Harmon, xlix. 
 269. 
 
 5. It seems, that under that statute, there must be a formal decree, by 
 the judge of probate, that a person is non compos mentis before a valid 
 appointment of guardian over him, as such, can be made. Hovey v. 
 ITarmon, xlix. 269. 
 
 6. R. S. of 1857, c. 67, do not limit the probate court, in its selection 
 of guardians, to persons resident in this State. Perry v. Johnson, uii. 
 401. 
 
 7. A creditor of a ward may sue him, taking care to have notice of 
 the suit served upon the guardian. Homstead v. Loomis, liii. 549. 
 
 8. If such notice be not served, the judgment obtained against the 
 ward will be erroneous and liable to be reversed. Homstead v. Loomis, 
 Liii. 549. 
 
 9. A person indebted for property purchased of a guardian cannot be 
 held as trustee in a suit against a ward. Homstead v. Loomis, liii. 549. 
 
 10. It is the duty of the guardian to pay all the just debts of his ward 
 so far as he can without disposing of effects necessary for the use and 
 comfort of the ward and his family- and if he neglects his duty in this 
 respect, the creditor is entitled to an action upon the guardianship's bond. 
 Homstead v. Loomis, liii. 549. 
 
 11. In 1842, W. was appointed guardian of the defendant by the judge 
 of probate for the county of Cumberland, both guardian and ward resid- 
 ing, at the time, in Danville, then in that county. The guardian gave 
 bond, returned an inventory, and subsequently sold, under a license, a 
 part of his ward's real estate. In 1864, W. died at Danville ; H. was ap- 
 pointed, by the judge of probate for Androscoggin county, administra- 
 trix of his estate (which was duly represented insolvent), and subse- 
 quently H., as administratrix, filed in the probate court for. the county 
 of Cumberland, a guardianship account of W. Hdd, (1) That the judge 
 of probate for the county of Cumberland had jurisdiction by virtue of 
 c. 60 of the Public Laws of 1854; (2) That c. 87 of the Public Laws 
 of 1854, did not affiict c. 60, so far as it relates to probate matters ; (3) 
 That the administratrix was the proper person to settle the account of 
 guardianship ; and (4) That the representation of insolvency did not 
 affect the course of proceedings. Woodbury v. Hammond, lit. 832. 
 
256 HABEAS CORPUS. HAY. 
 
 12. JN'either the insolvency of the guardian, or his estate, nor the lapse 
 of six years after the ward attains his majority, will operate as a release 
 from the guardian's liability to settle a final account, or absolve the guar- 
 dian or his personal representative from the duty to account. Woodhury 
 V. Ilainmond, liv. 332. 
 
 13. It is no objection that an account of guardianship is settled after 
 the ward has become of age, so long as it embraces nothing except what 
 accrued during his minority. Woodbury v. Hammond, liv. 332. 
 
 14. Mode of stating an account of guardianship. Woodbury v. Ham- 
 mond, LIV. 332. 
 
 15. At common law, the estate of an insane person, over twenty-one 
 years of age and under guardianship, is liable for necessary nursing and 
 care furnished in good faith and under justifiable circumstances. Saw- 
 yer V. Lufkin, lvi. 308. 
 
 16. And this liability is not changed by R. S. of 1857, c. 67, § 22, which 
 prohibits all express contracts by an insane person over twenty-one years 
 of age and under guardianship, but not those implied by law. Sawyer 
 V. JL/ufhin, lvi. 308. 
 
 HABEAS CORPUS. 
 
 1. Where a person is cited before a judge of probate by virtue of R. S., 
 c. 64, §§ 55 and 57, and c. 113 of the Public Laws of 1859, and refuses 
 to answer any lawful interrogatory, and is thereupon imprisoned for con- 
 tempt ; whether the interrogatory be lawful or otherwise, or whether the 
 commitment be justifiable or not, can be determined only by this court 
 on a writ of habeas corpus. Bradley v. Yeazie, xlvii. 85. 
 
 2. Persons restrained of their liberty, under color of process of law, 
 have a speedy remedy by writ of habeas corpus, and one much less on- 
 erous than that of de homine replegiando, because it requires neither re- 
 cognizance nor bond. Nason v. Staples, xltiii. 123. 
 
 HAY. 
 
 1. R. S. of 1841, c. 64, requires that hay pressed and put up in bun- 
 dles, for sale or shipment, shall be branded. on the boards or bands en- 
 closing the same, with the name of the person pressing the same; and it 
 is no compliance with the statute to brand thereon the name of another 
 person, although it be done with the latter's consent. Pickard v. Bay- 
 ley, XLvi. 200. 
 
 2. An action cannot be maintained against the owners of a vessel for 
 the non-performance of a contract to transport hay, if the bundles are 
 not branded as the statute requires. Nor for neglect in taking care of 
 the hay, after its delivery to them for shipment, whereby the hay was 
 
HOLMES NOTE. 257 
 
 greatly damaged, the duty or promise to take care of it arising from the 
 contract of affreightment, the performance of which would be in viola- 
 tion of the statute. Pickard v. JBayley, xlvi. 200. 
 
 3. One who cuts the hay of another, and puts it into the latter's barn, 
 under a verbal agreement by which the hay is to be divided, and one- 
 half assigned to him for his services, has the rights of a tenant at will. 
 
 White V. Elwell, xlviii. 360. 
 
 4. Such rights would continue until the tenancy should be terminated, 
 or the property removed, if done within a reasonable time. White v. 
 Hutchinson, xlviii. 860. 
 
 5. After the hay is divided, the tenant has the right to enter within a 
 reasonable time, and remove it, and the owner could not revoke the li- 
 cense so as to prevent it. White v. Hutchinson, xLvni. 360. 
 
 6. If, in such case, the owner of the barn forbids the tenant entering 
 to take away the hay, he may do it forcibly, at a reasonable time, and 
 in a reasonable manner, doing no more injury than was reasonably neces- 
 sary to obtain and carry away his hay. White v. Mwell, XLvm. 360. 
 
 7. The proceeds of unbranded pressed hay, tortiously taken and sold, 
 or wrongfully sold by one not the owner, but lawfully possessed thereof, 
 may be recovered by the owner in assumpsit for money had and received 
 against such tortious vender. Foye v. Southard, liv. 147. 
 
 See Action, 10. 
 Assumpsit, 5. 
 Attachment, 6. 
 
 HIGHWAY SURVEYOR, AND STREET COMMISSIONER. 
 
 See Wat. 
 
 HEIR. 
 
 See Descent, &c. Devise, &c., 20. 
 
 HOLMES NOTE. 
 
 F. bargained with the plaintiff for, and received possession of a pair of 
 oxen, the former giving therefor his note on time, in which it was stipu- 
 lated that the " oxen to remain " plaintiff's " until the note was paid." 
 Several payments were subsequently indorsed upon the note, which was 
 still later sued, and real estate attached upon the writ. F. sold the 
 oxen to the defendant who was sued in trover after demand and refusal. 
 Held, that the case disclosed no defense. Bawson v. Twl, XLvn. 506. 
 See Sale, 8-14. 
 17 
 
258 HOMESTEAD. HOOP-POLES. HOUSE OF COKKECTION. 
 
 HOMESTEAD. 
 
 1. Where the "head of a family or householder" claiming the benefit 
 of c. 207 of the Public Laws of 1850, caused his certificate to be recorded 
 after a judgment (for costs) had been entered up against him, the prem- 
 ises described in his certificate will not be exempt from the levy of 
 any execution that may be issued thereon. Mills v. Spaulding, l. 57. 
 
 2. And if the debtor so long neglects to pay the judgment that no ex- 
 ecution can be issued, and a suit is brought on the judgment, the execu- 
 tion that afterwards issues may be levied on the premises, notwithstand- 
 ing it includes interest and costs that have accrued after the recording 
 of his certificate of exemption. Mills v. Spaulding, l. 57. 
 
 HOOP-POLES. 
 
 A survey of hoop-poles before sale is not required by the statute. 
 Lewis V. Soper, xuv. 72. 
 
 HOUSE OF CORRECTION". 
 
 1. In an action by the master of a house of correction to recover the 
 expenses incurred in support of a pauper therein, a declaration upon an 
 account annexed to the writ is sufficient. Gilman v. Portland, li. 457. 
 _ 2. The certificate " examined and allowed " by the county commis- 
 sioners upon the account, is sufficient in such case. Oilman v. Fort- 
 land, LI. 457. 
 
 3. In such action, the cost of commitment cannot be recovered ; nor 
 money paid to redeem clothes pawned by the pauper. Gilman v. Port- 
 land, LI. 457. 
 
 See Costs, 53. 
 
HUSBAND AND WIFE. 259 
 
 HUSBAND AND WIFE. 
 
 I. EIGHTS AND LIABILITIES OF HUSBAITD. 
 
 n. KIGHTS AND LIABILITIES Olf WIFE. 
 
 III. THEIK RESPECTIVE EIGHTS IN HER PEOPEETY. 
 
 IV. ACTIONS BY AND AGAINST HUSBAND AND WIFE. 
 
 I. RIGHTS AND LIABILITIES OF HtTSBAND. 
 
 1. Where a wife, by an insti'ument under seal and in terms irrevocable, 
 appointed her husband her attorney, for her and in her name to collect 
 and receive to his own use, the rents and profits of her real estate already 
 under lease, to make repairs, pay taxes, have the general oversight thereof 
 during his life, witliout accounting to her, and represent her before any 
 court, the husband is thereby authorized to commence an action for an 
 injury to her real estate, but only in her name. Woodman v. JVeal, 
 XL VIII. 266. 
 
 2. An action does not lie against the husband, as an executor de son 
 tort, for acts of his wife, done without his knowledge. Otherwise, where 
 he advised or aided her in the commission of the wrongful acts ; for ev- 
 ery one, thus participating, becomes a principal. Hinds v. Jones, xLvin. 
 348. 
 
 3. A husband, although he be insolvent, may convey real estate to his 
 wife, in payment of a note given her by him, for money of hers loaned 
 to him, if there be no intent to defraud or delay creditors. Randall v. 
 Lunt, LI. 246. 
 
 4. The general rule of the common law is, that, for a tort committed 
 by the wife alone, and without the presence or direction of her husband, 
 she will be held liable ; but in a civil suit therefor the husband must be 
 joined with her. Marshall v. Oakes, li. 308. 
 
 5. If committed in his presence, and by his direction, he alone is liable. 
 Marshall v. Oakes, li. 308. 
 
 6. If the husband was present, the prima facie presumption is that the 
 wife acted under coercion ; but this presumption may be overcome by 
 evidence that she was the instigator and the more active party, or by 
 other facts sufficient to rebut such presumption. Marshall v. Oakes, li. 
 308. 
 
 7. In an action against both, in the absence of any such evidence, the 
 jury should be instructed to acquit the wife. Marshall v. Oakes, li. 308. 
 
 8. By the laws of this State, a husband acquires no right to control the 
 personal property of his wife, by virtue of the marriage relation. Sar^- 
 son V. Millett, lv. 184. 
 
 9. Whether such property consist of household furniture kept in her 
 husband's house, or of stock kept on his farm, the wife is deemed to be in 
 possession of it, in the same manner that the husband is of his property 
 kept in the same manner. Hanson v. Millett, lv. 184. 
 
 10. A husband may recover in his own name for the personal services 
 of his wife. Gould v. Carleton, lv. 511. 
 
260 HUSBAND AND WIFE, 
 
 ir. EIGHTS AND LIABILITIES OP WIFE. 
 
 11. Where a husband received from his wife money of her own, for a 
 specific purpose, and without her knowledge paid it to a person with 
 whom he had orally contracted to purchase a farm, in part-payment 
 
 . therefor, and failed to pay the balance, the wife cannot recover back the 
 money from the person to whom it was paid by her husband. Gammon 
 v. Butler, xlviii. 344. Kneeland v. Fuller, ii. 518. 
 
 12. Since the enactment of c. 227, of the Public Laws of 1852, the wife 
 has been authorized to convey land by deed directly to her liusband. 
 Allen V. Hooper, l. 371. 
 
 13. Where the right of redeeming a levy is in the husband, the wife, 
 in the absence of proof, is presumed to occupy the estate levied upon in 
 subordination to the legal title, and not adversely thereto. Allen v. 
 Hooper, l. 371. 
 
 14. E. H. purchased a parcel of land which was conveyed to his wife, 
 and joined with her in a mortgage back to secure a part of the purchase- 
 money. He erected a dwelling-house and other buildings on the land, 
 which he intended as a gift to his wife, with no design to defraud credi- 
 tors. Subsequently, he became insolvent ; and one of his creditors at- 
 tached the buildings and sold them on execution as his personal proper- 
 ty. In an action of trover by the purchaser against the tenant in 
 possession, who claimed as grantee of E. H. and wife. Held, (1) That 
 when an erection, though made with the consent of the owner, is with 
 the exjjress or implied agreement of the owner of the soil and the person 
 making the erection, that it shall become and remain a part of the freei 
 hold, it must be regarded aa real estate and not as personal estate ; and 
 (2) That the purchaser acquired nothing by the sale on execution, if the 
 buildings became the property of the wife by accession and the intention 
 of herself and husband, the judgment debtor having no title to the prop- 
 erty, and even if the buildings were the property of the debtor, the title 
 to them would enure to the mortgagee, and the debtor, by the covenants 
 of his deed of mortgage, would be estopped to assert title to the land or 
 buildings; and the mortgage having been recorded, was notice to the 
 purchaser of the prior rights of the mortgagee. Humphreys v. Newman, 
 LI. 40. 
 
 15. If a husband pay money belonging to his wife, with her consent, in 
 part fulfillment of a contract for the purchase of real estate, under an ex- 
 isting written contract, she cannot maintain an action to recover hack 
 the money so paid ; nor, although by such payment the contract is ful- 
 filled on the part of the husband, and the other party refuses to convey. 
 Kneeland' v. Fuller, li. 518. 
 
 16. By R. S. of 1857, c. 61, § 1, when payment was made for property 
 conveyed to a married woman from the property of her husband, or it 
 was conveyed by him to her without a valuable consideration paid there- 
 for, it may be taken as the property of her husband, to pay his debt con- 
 tracted before such purchase. Low v. Marco, liii. 45. I>es Brisay v. 
 Hog an, liii. 554. 
 
 17. Section 3, c. 61 of R. S. of 1857, does not enable a married woman 
 to maintain an action against her husband on a note given by hira to her. 
 
 Crowther v. Crowther, lt. 358. 
 
IMPOUNDING. 
 in. THEIR BESPBCTIVE EIGHTS IN HBE PEOPEETY. 
 
 261 
 
 18. The husband has a life-estate in the real property of his wife ac- 
 quired prior to the statute of 1844, which may be taken in execution for 
 his debts. Becde v. Knowles, xlv. 479. 
 
 19. Simultaneously with her acquisition of title to the estate, the rights 
 of her husband therein were perfected ; and their rights remain unaf- 
 fected by the subsequent statutes. JBeale v. Knowles, xlv. 479. 
 
 20. By the common law, the personal property of the wife, which she 
 had at the time of her marriage in her own right, such as money, goods, 
 and chattels, vested immediately and absolutely in her husband. Jor- 
 dan V. Jordan^ lii. 320. Oarleton v. Lovejoy, nv. 445. 
 
 21. "Where the plaintiff owned the money sued for, in her own right, 
 at the time of her marriage, in 1834, and it was never reduced to pos- 
 session by her husband during her coverture, but remained under her 
 control, ileld, that the money became absolutely vested in the husband, 
 at the time of the marriage, and, at his death, it went to his representa- 
 tives. Jordan v. Jordan, lii. 320. 
 
 See Devise, &c., 10. 
 Mortgage, 63. 
 
 IV. ACTIONS BY AND AGAINST HUSBAND AND WIFE. 
 
 22. An action, in the name of husband and wife for injuries sustained 
 by her, survives; and the husband may withdraw, that the administrator 
 may come in and prosecute. JVbrcross v. Stuart, l. 87. 
 
 23. In such a case, the husband cannot be considered a party after the 
 death of the wife ; but, if made her administrator, he may prosecute in 
 that capacity. Norcross v. Stuart, l. 87. 
 
 24. The well-established doctrine of the common law, that a married 
 woman cannot sue alone for malicious prosecution, has not been changed 
 by R. S. of 1857, c. 61. Xiaughlin v. Eaton, liv. 156. 
 
 25. She cannot sue alone in such action, although her husband went, 
 several years since, to California, but is alive, keeps up a correspondence, 
 and frequently sends her funds. Laughlin v. Baton, liv. 156. 
 
 See Abatement, 12. 
 Amendment, 7. 
 
 TJSUET, 1. 
 
 Ekbok, 9. 
 
 IMPOUNDING. 
 
 1. By R. S. of 1841, c. 30, § 15 (R. S. of 1857, c. 23, § 13), where a 
 beast, taken up as an estray, is impounded, the pound-keeper is required 
 to post, and keep posted for three days, advertisements thereof, &c. And 
 by Public Laws of 1853, c. 17, § 1 (R. S. c. 23, § 14), the pound-keeper 
 is required, in ten days after the notice has been given, to sell the beast, 
 
262 IMPRESSMENT OF PKOPERTY. ^INCOME. INCKEASE. 
 
 giving forty-eight hours' notice of the time and place and cause of sale. 
 Mounds V. Stetson, xlv. 596. 
 
 2. Itt trover against the defendnnt, to recover the value of a cow sold 
 by him as pound-keeper, Held, (1) That the "ten days" do not begin' 
 to run, until the "three days" have fully expired ; and (2) That the 
 "forty-eight hours' notice" cannot be given during the "ten days." 
 Bounds V. Stetson, xlv. 696. 
 
 IMPRESSMENT OF PROPERTY. 
 
 1. The right to impress property to be used for the taking care of per- 
 sons infected with sickness dangerous to the public health, can be exer- 
 cised only when expressly granted by statute. Mitchell v. Mochland, 
 xlv. 496. Mitchell v. Rockland, lii. 118. Pinkham v. Dorothy, lv. 135. 
 
 2. Where a vessel is subject to quarantine regulations, the officers of 
 the town are not authorized to appropriate any part of such vessel for a 
 hospital, or to exclude the owner from the possession or control of any 
 part of the vessel. Mitchell v. Rockland, xlv. 496. 
 
 3. Chapter 14 of R. S. of 1857, does not authorize the impressment of 
 a stage-coach for the removal of a person infected with sickness danger- 
 ous to the public health. Pinkham v. Dorothy, lv. 135. 
 
 INCOME. 
 
 When income, payable annually, is devised to a person, over-pay- 
 ments may be regarded as advances, and deducted from the income sub- 
 sequently accruing. Arnold v. Mower, xlix. 561. 
 
 INCREASE. 
 
 The natural increase of a mare, while owned by a married woman 
 kept on her husband's farm, belongs to the wife. Hanson v. Millett, lv. 
 184. 
 
 INCUMBRANCE. 
 
 See CovEM-ANT, 2, 8. 
 
INDICTMENT. 
 
 INDENTURE. 
 See Appkbnticb and AppEENTicBSHrp, 1, 3. 
 
 263 
 
 INDICTMENT. 
 
 I. WHAT IS INDICTABLE. ' 
 n. PLEADING. 
 III. PKACTICE AND EVIDENCE. 
 
 For indictments oj^ particular crimes, see tlieir respective titles. 
 
 I. "WHAT IS INDICTABLE. 
 
 1. Towns may be indicted and fined for allowing tlieir highways to 
 become unsafe and inconvenient, although they may have no notice of 
 the defect. Bragg v. Bangor, li. 532. 
 
 n. PLEADING. 
 
 (a) Finding op the indictment. 
 
 (b) SUKPLUSAGE AND CERTAINTY. 
 
 (c) Duplicity and repugnancy. 
 
 (d) Other points. 
 
 (e) Under statutes. 
 
 (a) Finding of the indictment. 
 
 2. The mere presence of « stranger at the finding of an indictment 
 does not render it void, if Lc <ioes not act. State v. Clough, xlix. 573. 
 
 3. But if an unauthorized person participates in the proceedings, the 
 indictment is void, though twelve competent grand jurors concurred in 
 finding it. State v. Clough, xlix. 573. 
 
 See Abatement, 22. 
 
 (b) Surplusage and certainty. 
 
 4. In an indictment upon the statute providing for the punishment of 
 any person who shall burn any building, it is sufficient to allege that, 
 " he set fire to '' such building, the terms being equivalent. State v. 
 Taylor, xlt. 322. 
 
 5. In an indictment upon R. S., c. 119, § 3, for burning a barn " in the 
 day-time," it is not necessary to allege that the barn was within the cur- 
 tilage of a dwelling-house, that fact being immaterial, except where the 
 burning is in the night time. State v. Taylor, xlv. 322. 
 
264 INDICTMENT. 
 
 6. An indictment, alleging that the respondent was a common seller, 
 &c., on the first day of July, a. d. 1858, and on divers days and times 
 between that day and the day of finding of an indictment in October fol- 
 lowing, is not bad, although ofienses committed during a portion of that 
 time are punishable under the act of 1856, and during the remaining por- 
 tion, under the act of 1858. Slate v. Pillshury, xlvii. 449. 
 
 7. The phrase " and on divers days," &c., may be rejected as surplus- 
 age. State V. Pillshury, xlvii. 449. 
 
 8. Where an offense consists of a series of acts, or a habit of life, the 
 indictment may charge the offense in general terms, and the particular 
 acts which establish the guilt of the party need not be stated. State v. 
 Collins, XLViii. 217. State v. Gofren, xlviii. 364. 
 
 9. But, when a statute, creating such an offense, specifies, in the enact- 
 ing clause, the acts of which it consists, the indictment must follow the 
 description in the statute. State v. Collins, XLvni. 217. 
 
 10. If such description is not in the enacting clause, the indictment 
 may charge such offense in general terms. State v. Collins, xltiii. 217. 
 
 11. An indictment under the statute of 1858, alleging that T. C, at a 
 time and place named, "did keep a drinking-house and tippling-shop 
 contrary to the form of the statute," is sufficient. State v. Collins, xlviii. 
 217. 
 
 12. An immaterial averment in an indictment, not contradicting any 
 other, and not descriptive of the identity of the charge or of anything 
 essential to it, not tending to shovr that no offense has been committed, 
 may be rejected as surplusage. State v. Mayherry, xlviii. 218. 
 
 13. Matters of inducement need not be set out with that degree of 
 minuteness and particularity, which is requisite in setting out the mate- 
 rial allegations, which constitute and give character to the offense 
 charged. State v. Mayherry, xlviii. 218. 
 
 14. An indictment founded on R. S. c. 4, § 61, alleging that, on a cer- 
 tain day named, " at Augusta, in the county of Kennebec, a meeting of 
 the inhabitants of saic\ Augusta, for the election of" certain State and 
 county officers therein specially named, " and repi-esentatives to the leg- 
 islature, for said Augusta, was then and there duly held ; and, at said 
 election, a list of the voters of said Augusta was necessary; and, further 
 alleging that the respondent "did then and there, at the meeting and 
 election aforesaid, willfully, knowingly, and unlawfully cast and give more 
 than one vote, ballot, and list of persons then and there to be elected and 
 chosen into the said offices, at one balloting at the choice and election 
 aforesaid, against the peace," is good. State v. Boyington, lvi. 512. 
 
 15. It is not necessary to negative the exceptions contained in K. S. 
 c. 4, § 37. State v. Boyington, lvi. 512. 
 
 16. The allegation that the meeting was "then and there duly held" 
 is broad enough to embrace the proof necessary to show the meeting was 
 held according to the constitution and laws of the State. State v. Boy- 
 ington, LVI. 512. 
 
 (c) Duplicity and repugnancy. 
 
 17. In an indictment may be joined a count charging one with larceny, 
 and a count against him as receiver of stolen goods. State v. Stimpson, 
 XLV. 608. 
 
INDICTMENT. 
 
 265 
 
 18. An indictment alleging that the respondents unlawfully, &o., did 
 conspire, combine, confederate, and agree together, one H. P. to cheat 
 and defraud, " by then and there inducing and procuring said H. P. to 
 surrender " certain notes, describes the manner in which they agreed to 
 cheat H. P., and does not make a new and substantive charge. State v. 
 Mayberry, xltiii. 218. 
 
 19. When an offense consists of a succession of acts, the indictment 
 may properly charge that the offense was committed on a given day 
 " and on divers other days and times between that day and the day of 
 the finding of the indictment." Such an indictment is not bad for dupli- 
 city. State V. Gofren, xlviii. 364. 
 
 20. In such case, it is not fatal to the indictment that the time em- 
 braced in the charge commenced more than two years before the indict- 
 ment was found. State v. Cofren, xlviii. 364. 
 
 21. Offenses of the same nature, though different in degree, may be 
 charged in one indictment. State v. Hood, li. 363. 
 
 22. An indictment alleged that the accused, on a day and at a place 
 named, " with force and arms, in and upon the body of" a person named, 
 " the said " person " being then and there a deputy-sheriff within and 
 for the county of Kennebec, legally authorized and duly qualified to dis- 
 charge the duties of said office, and being then and there in the due and 
 lawful execution of the same, did make an assault, and him the said " 
 person " did then and there beat, wound, and ill treat, and, in the due 
 and lawful execution of his said office, did then and there unlawfully, 
 knowingly, and designedly obstruct, hinder, and oppose, . . . contrary to 
 the form of the statute," &c. Held, on demurrer, (1) That the indict- 
 ment charged an assault and battery ; (2) That the averments as to the 
 official position of the person assaulted, and to the effect of the assault 
 in hindering him from the performance of his official duties, are to be 
 taken only as allegations in aggravation of the assault ; (3) That it is 
 not bad for duplicity; and (4) That judgment could be properly ren- 
 dered upon the indictment, whether the matter alleged in aggravation 
 were supported by proof or not. State v. Dearborn, lit. 442. 
 
 (d) Other 'points. 
 
 23. Under R. S. of 1841, a justice of the peace, having, on the return 
 day, defaulted an action brought before him, has no authority to take off 
 the default on the next day ; and an indictment for perjury cannot be 
 sustained for false testimony given on the subsequent trial of such action. 
 State V. Hall, xlix. 412. 
 
 24. Parties to the crime of adultery may be indicted jointly. State v. 
 JBartlett, liii. 446. 
 
 25. The second clause of § 6 of art. 1, of the constitution of this State, 
 requires simply, that all the elements of, or acts necessary to the crime 
 charged in an indictment, shall be fully and clearly set out. State v. 
 Verrill, liv. 408. 
 
 26. An indictment for murder need not set out " the manner in which 
 and the means by which " the killing was perpetrated. State v. Verrill, 
 LIV, 408. 
 
266 INDICTMENT. 
 
 (e) Under statutes. 
 
 27. Where the same section of an act prohibits an oifense, and speci- 
 files the acts of which it consists, an indictment for its violation must, by 
 express words, bring the offense substantially within the statute descrip- 
 tion. In such case, the circumstances mentioned in the statute, to make 
 up the offense, cannot be dispensed with, by the general conclusion con- 
 tra formam statuti. State v. Casey, xlt. 435. See State v. Collins, 
 XL VIII. 217. 
 
 28. But when the offense is prohibited in general terms in one section; 
 and in another, entirely distinct, the acts are specified of which the of-« 
 fense consists, it is not necessary that anything but the general descrip- 
 tion should be set out. State v. Casey, xlv. 435. See § 32. 
 
 29. An indictment under the statute of 1856, alleging that J. C, at a 
 time and place named, " did keep a drinking-house and tippling-shop con- 
 trary to the form of the statute," is sufficient. State v. Casey, xlt. 435. 
 
 30. So,.also, under the statute of 1858. State y. Collins, xi,Yin. 217. 
 
 31. When a statute creating an offense consisting of a series of acts, 
 specifies, in the enacting clause, the acts of which it consists, the indict- 
 ment must follow the description in the statute. State v. Collins, XLvm. 
 217. 
 
 32. If such description is not in the enacting clause, the indictment 
 may charge such offense in general terms. State v. Collins, xlyih. 217. 
 
 III. PEACTICE AND EVIDENCE. 
 
 33. In the trial of an indictment for setting fire to a barn, &c., proofof 
 actual occupation and possession is sufficient evidence of the allegation 
 of ownership. State v. Taylor, xlv. 322. 
 
 34. Where an indictment for larcenoy states only the collective value 
 of the articles alleged to have been stolen, if the defendant is convicted; 
 of stealing only a part of them, and the jury find, and, in their verdict, 
 return the value of the part stolen, judgment may be legally rendered 
 upon the verdict. State v. Buck, xlvi. 531. 
 
 35. An indictment, found October, 1858, alleged that the respondent 
 was a common seller, &c., on the first day of July, a. d., 1858, and on 
 divers days and times between said first day of July aforesaid, and the 
 day of the finding of the indictment. The act of 1868 went into opera- 
 tion July 15, 1858, and the act of 1856 was continued in force for the 
 punishment of offenses committed previous to said July 15. ^M,,that 
 the attorney for the State might enter a nol pros, as to offenses commit- 
 ted after the act of 1858 took effect; and that on such indictment the 
 respondent may be convicted under act of 1856, but not, it seems, under 
 the act of 1858. State v. PiUsbury, xlvii. 449. 
 
 36. If conspirators carry out or attempt to carry out the object of the 
 conspiracy, that fact may be alleged in aggravation of the offense, and 
 given in evidence to prove the conspiracy. State v. Mayberry, xLVin. 
 218. 
 
 37. One good count in an indictment is sufficient to support a geneial 
 verdict of guilty, though it may also contain defective counts-. State v. ■ 
 Mayberry, XLvm. 218. 
 
INDICTMENT. 
 
 267 
 
 38. If two persons conspire together to alter a deed, and thereby to 
 cheat and defraud another of valuable papers, by obtaining them of him 
 for the altered deed, by false pretenses, and do obtain the papers by the 
 false pretenses, the fact that the alteration so made by them, supposing 
 it to be material, was in fact not material, does not entitle them to an 
 acquittal upon an indictment for the conspiracy. State v. Mayberry. 
 XLvm. 218. 
 
 39. On the trial of an indictment for being a common seller of intoxi- 
 cating liquors, no evidence of any acts of the respondent committed 
 more than two years before the indictment was found, are admissible. 
 State V. Cofren, xlviii. 364. 
 
 40. If a verdict of guilty be returned against a person on an indict- 
 ment charging two palpably distinct offenses, and injustice were done by 
 the verdict, the remedy would be by motion to set aside the verdict as 
 not being warranted by the evidence, and not by motion in arrest. 
 State V. Sood, li. 863. 
 
 41. Exceptions do not lie to the refusal of the presiding judge to com- 
 pel the prosecuting officer to elect upon what counts in the indictment 
 he will proceed. State v. Hood, li. 363. 
 
 42. Th6 jury are not judges of the law in criminal prosecutions. 
 State V. Wright, liii. 328. State v. Stevens, Lin. 548. 
 
 43. An indictment will not be quashed because one of the gi-and jurors 
 finding it was a postmaster. State v. Wright, lhi. 328. 
 
 44. They are bound by the instructions of the presiding judge in mat- 
 ters of law to the same extent in criminal as in civil suits. State v. 
 Wright, Lnt. 328. State v. Stevens, liii. 548. 
 
 45. Nor will judgment be arrested because one of the traverse jurors 
 was a coroner. State v. Wright, liii. 328. 
 
 46. When all the counts in an indictment substantially set out the 
 same offense, differing only in the description of the means used to com- 
 mit it, a general verdict is all the law requires. State v. Wright, ua, 
 328. 
 
 47. By R. S. of 1857, c. 124, § 4, an indictment for polygamy may be 
 found and tried in the county where the offender resides, or where he 
 is apprehended. State v. Sweetsir, liii. 438. 
 
 48. This statute is not in derogation of the common law, but only en- 
 larges the jurisdiction, "may" being permissive and not mandatory. 
 State V. Sweetsir, liii. 438. 
 
 49. Proof that the defendant, by false representations, persuaded an 
 unmarried female to go with him to a neighboring town, and there, hav- 
 ing induced partial intoxication, had repeated sexual intercourse with her, 
 will not support an indictment for enticing her away "for the purpose of 
 prostitution," based on c. 4, of the Public Laws of 1861. State v. Stoydl, 
 Liv. 24. 
 
 50. Under R. S., 1857, c. 131, § 4, a person substantially charged in an 
 indictment with the commission of an assault and battery, as well as of 
 a riot, may be convicted of the former and acquitted of the latter. State 
 V. Ham, LIV. 194. 
 
 51. Upon the issue I'aised by a replication to a plea of misnomer, that 
 tiie defendant was known as well by the name in the indictment as by 
 that in the plea^ the presiding judge, after stating to the jury the ques- 
 
268 INFANT. 
 
 tion at issue, illustrated it as follows : " If a stranger should go . . . where 
 the defendant is known and inquire for the house of the" person named 
 in the indictment, would those of whom he inquired recognize the man 
 inquired for as well by that name as by the name used in the plea ? " If 
 so, the issue is made out for the government." Seld, unexceptionable. 
 State V. Dresser, lit. 569. 
 
 52. Upon an indictment charging the felonious breaking and entering 
 of a building, and a larceny therein, after a general verdict of guilty, 
 judgment will not be arrested, if the larceny of a single article is prop- 
 erly alleged, although it may contain insufficient allegations of the larce- 
 ny of other articles. State v. Bartlett, lt. 200. 
 
 53. Exceptions to allowing the prosecuting officer to inquire, on cross- 
 examination of a prisoner's witnesses, what his business has been, wiU 
 not be sustained, when it does not appear what the answer was. State 
 V. Bartlett, lv. 200. 
 
 54. When the identity of the prisoner is a material question, and a wit- 
 ness for the government has testified to an acquaintance with him, the 
 witness may be asked where it was, and what was his own business. 
 State V. Bartlett, lv.- 200. 
 
 55. The fact that the accused does not testify in his own behalf is a 
 proper one for the jury to consider in determining his guilt or innocence. 
 State V. Bartlett, lv. 200. 
 
 56. On the trial of an indictment, the presiding judge may, in his dis- 
 cretion, appoint a counsellor of the court to assist the attorney for the 
 State ; and the fact that such person may expect compensation for his 
 services thus rendered, will not deprive the court of the power to appoint 
 him. State v. Bartlett, lv. 200. 
 
 See Abatement, 21. 
 Adulteet, 2. 
 Practice, 80, 81. 
 
 INFANT. 
 
 1. An infant is liable in trespass quare clausum, though the trespass 
 complained of was committed by the express command of his father. 
 Scott V. Watson, xlti. 362. 
 
 2. Ejectment may be maintained against an infant for disseisin, that 
 being a tort. Marshall v. Wing, l. 62. 
 
 8. But he must appear and plead by guardian, or the judgment will 
 be erroneous ; otherwise, if, pending the suit, he attains to full age, and 
 afterwards pleads. Marshall v. Wing, l. 62. 
 
 4. R. S., c. 81, § 100, gives minors six years, after they become of age, 
 to bring actions of assumpsit for causes of action which accrued during 
 their minority. Cutler v. Currier, lit. 81. 
 
 5. The contracts of infants are, (1) Binding, when for necessaries at 
 fair and just rates; (2) Void, when manifestly and necessarily prejudi- 
 cial ; (3) Voidable, including all their agreements, which may be bAe- 
 
INJUNCTION. 
 
 269 
 
 ficial and are not for necessaries, until fully executed on both sides ; and 
 all such executed contracts where the other party can be placed substan- 
 tially in statu quo. JRobinson v. Weeks, lvi. 102. 
 
 6. To enable him to recover back money paid under a voidable con- 
 tract, a rescinding minor need not offer to return mere receipts taken 
 therefor. JRohinson v. Weeks, lvi. 102. 
 
 7. Voidable contracts may be rescinded by a minor, either during his 
 minority, or within a reasonable time after he has attained his majority. 
 JRobinson v. Weeks, lvi. 102. 
 
 See BorNTT, 15, 16. 
 
 Paupbe, 1, 3, 6, 8, 9, 10. 
 
 INHABITANTS OF TOWNS. 
 See Pbopeietoes of Land, &c. 
 
 INJUNCTION. 
 
 1. Where a claim, on which an action had been brought, was settled be- 
 fore the term of the court was begun, and the plaintiff wrongfully entered 
 the action, took judgment and execution, and long afterwards as- 
 signed the execution, the court, exercising its equity powers, will grant 
 a writ of injunction, to relieve the debtor in the execution against its en- 
 forcement. Devoll V. Scales, xlix. 320. 
 
 2. Where a bill has been filed in one county, and afterwards an appli- 
 cation is made for an injunction, to a judge sitting in court in another 
 county, and the injunction is granted, it may be upheld, although the 
 statute seems to contemplate that the act is to be done by a judge out 
 of court, unless by the court in the county where the bill is pending. 
 And. <& Ken. JR. B. Co. v. And. B. R. Co., xlix. 892. 
 
 3. After the injunction has been issued, the judge has exhausted 
 the power vested in him as judge out of the court where the bill is pend- 
 ing. And. <& Ken. B. It. Co. v. And. JR. B. Co., xlix. 392. 
 
 4. In such case, the writ should be made returnable to the county 
 where the bill is pending. And. t& Ken. B. B. Co. v. And. B. B. Co., 
 xlix. 392. 
 
 5. The statute concerning nuisances, authorizing the court, in any 
 county, to issue an injunction, and to make such orders and decrees for 
 enforcing or dissolving it, as justice may require, confers no additional 
 powers on the court in cases where the bill does not charge the acts com- 
 plained of as a nuisance. And. & Ken. B. B. Co. v. And. B. B. Co., 
 XLIX. 392. 
 
 6. In a petition for an injunction against town officers, under § 1, c. 
 239, of the Public Laws of 1864, an allegation denying the prior legal 
 
270 INSANE HOSPITAL. 
 
 authority of the town to authorize the issuing of town orders by the se- 
 lectmen, and the subsequent legislative ratitication thereof, puts directly 
 in issue the legality of the town meeting. Clark v. Wardwell, lv. 61. 
 
 7. Where such petition ran against the selectmen, collector, and treas- 
 urer, eo nomine, and the names of the individuals holding such offices, 
 when the bill was drawn, were inserted in the prayer of the bill as par- 
 ties respondent, upon whom service was made, Held, that the injunction 
 would not be dissolved as to the particular respondents, although they 
 had ceased to hold the respective offices named. Clark v. Wardwell, lv. 
 61. 
 
 See Am. Bank, 4. 
 Bank, 9. 
 Bond, 3. 
 Equity, 11,13,14,15,95,97. 
 
 INNKEEPER. 
 See Bailment, 12, 13, 14, 15, 16, 17, 18. 
 
 INNOCENT PURCHASER. 
 
 See Fraud, 47, 48. 
 
 INSANE HOSPITAL. 
 
 1. Where the officers of a town have committed an insane pauper be- 
 longing to another town to the hospital, although the town making the 
 commitment is responsible to the hospital for the board and expenses, a 
 right of action to recover such expenses of the town where the pauper 
 belongs does not accrue until the sums due to the hospital are paid. 
 Bangor v. Fairfield, xlvi. 658. 
 
 2. To prove the doings of selectmen in committing a person to the 
 insane hospital, their original record is admissible, as well as a transcript, 
 or duly authenticated copy of it. Jay v. Carthage, XLvni. 353. 
 
 3. And the selectmen may amend their record according to the facts 
 while in office, provided the rights of third persons are not thereby prej- 
 
 ' Tidiced. Jay v. Carthage, xlviii. 353. 
 
 4. The town from which a person is legally committed to the insane 
 hospital, is authorized to recover the expenses incurred of the town in 
 which such person has his legal settlement. Jay v. Carthage, XLVin. 
 353. 
 
INSANE PEUSONS. 271 
 
 5. To entitle the former to recover, it must give notice to the latter 
 within three months after such expenses were paid, as in ordinary pau- 
 per cases. Jay v. Carthage^ xlviii. 353. 
 
 6. When no payment is made by the latter, a notice once given is suffi- 
 cient to charge them for all sums expended for three months prior^to 
 such notice, and all sums afterward accruing up to the commencement 
 of the action, unless barred by the statute of limitations. Jay v. Car- 
 thage, xlviii. 353. 
 
 7. When such notice is signed by the selectmen, and it does not ap- 
 pear that other persons had been chosen as overseers of the poor, it will 
 be presumed that the selectmen acted in that capacity, and the notice 
 be held sufficient in that respect. Jay v. Carthage, xlviii. 353. 
 
 8. The same presumption applies when the notice is directed to the 
 selectmen of the defendant town. It will he held valid, unless it appear 
 that the selectmen were not, ex officio, overseers of the poor. Jay v. 
 Carthage, xLvni. 353. 
 
 See DoMiciL, 16, 17. 
 
 INSANE PERSONS. 
 
 1. A judgment recovered on default, against a person admitted to 
 have been non compos mentis at the time of the proceedings, will be re- 
 versed on a writ of error brought by his administrator. Leach v. Marsh, 
 XLVii. 548. 
 
 2. Actions brought against non compotes for necessaries, it seems, con- 
 stitute an exception ; but, in such case, the defendant in error should 
 plead the fact in bar. Leach v. Marsh, XLvn. 548. 
 
 3. The case of a judgment on default, against a person admitted to 
 have been non compos, is to be distinguished from King v. Robinson, 
 33 Maine, 114, where the fact of unsoundness of mind was not admitted, 
 and the defendant appeared by attorney, and judgment was rendered 
 upon a trial and verdict. Leach v. Marsh, xlvii. 548. 
 
 4. A man may not have sufficient intelligence and understanding to 
 manage his affairs and transact business in a proper and prudent man- 
 ner, and yet may not be non compos mentis. Hovey v. Chase, lii. 304. 
 
 5. The law fixes no particular standard of intelligence necessary to be 
 possessed by parties in making a contract. Hovey v. Chase, lii. 304. 
 
 6. Legal competency is the possession of mental capacity sufficient to 
 transact business with intelligence and an intelligent understanding of 
 what he is doing. Homy v. Chase, m. 304. Sovey v. Uohson, lv. 256. 
 Darby v. Say ford, lvi. 246. 
 
 7. At common law, the estate of an insane person, over twenty-one 
 years of age and under guardianship, is liable for necessary nursing and 
 care furnished in good faith and under justifiable circumstances. Saw- 
 yer V. JJufkin, LTi. 308. 
 
272 INSOLVENT ESTATES. 
 
 8. And this liability is not changed by R. S., c. 67, § 22, which pro- 
 hibits all express contracts by an insane person over twenty-one years of 
 age and under guardianship, but not those implied by law. Sawyer v. 
 iMfJcin, LVi. 308. 
 
 See DoMiciL, 16, 17. 
 Evidence, 125, 126. 
 Exceptions, 10. 
 Gtjaedian, &c., 15. 
 Patjpee, 28, 29, 30, 32. 
 Pbaotice, 86. 
 
 INSOLVENT ESTATES. 
 
 1. A claim against an estate will be subject to the limitation provided 
 by R. S. of 1841, c. 120, § 24, notwithstanding it has been allowed by 
 the commissioners of insolvency, and in no part paid, for want of any 
 estate to be divided. Thurston v. Lowder, xlvii. 72. 
 
 2. The "additional time not exceeding, in the whole, eighteen 
 months," allowed by statute to creditors of an insolvent estate to prove 
 their claims before the commissioners, means time in which the credi- 
 tors may prove, and the commissioners may act, upon the claims to be 
 proved. Griffin v. Parcher, xlviii. 406. 
 
 3. R. S., c. 66, § 4, manifestly intends that eighteen months, in the 
 whole, should be given to the creditors, in which to present their claims; 
 therefore the limitation of the time to eighteen months "from the date 
 of the commission," contained in the statutes of 1841, was omitted. 
 Griffin v. Parcher, xlviii. 406. 
 
 4. An appeal from the decision of commissioners to examine claims 
 against an insolvent estate, may be made within twenty days after the ac- 
 ceptance of their report by the judge of probate. Pobbins Cordage Co. 
 V. Brewer, xlviii. 481. 
 
 6. If, pending an action in court, the defendant die, and commissioners 
 of insolvency on his estate are appointed by the judge of probate, and 
 the claim in suit is, by the creditor, presented to them and their adjudi- 
 cation upon it had, from which he appealed, he cannot prosecute his ap- 
 peal by amending his suit in the action pending, but must commence a 
 new suit, declaring for money had and received. Bates v. Ward, xlix. 87. 
 
 6. Nor is the case altered by the fact that the estate proves to be sol- 
 vent. Pates V. Ward, xlix. 87. 
 
 7. The adjudication and the report of the commissioners having been 
 . accepted by the judge of probate, will bar the plaintiff from recovering 
 
 in such pending suit ; and the administrator will have costs from the 
 time of his appearance to defend. Bates v. Wa/rd, xlix. 87. 
 
INSOLVENT LAWS. — INSUKANCE. 
 
 INSOLVENT LAWS. 
 
 273 
 
 The insolvent laws of another State can only operate intraterritorially. 
 Metcalf V. Yeaton, li. 198. 
 
 t 
 
 -t- 
 
 INSTRUCTIONS TO THE JURY. 
 See Peactioe, 49-87. 
 
 INSURANCE. 
 
 I. POLICY. 
 
 IL LOSSES. 
 
 IIL MARINE INSURANCE. 
 
 IV. PLEADING AN^D EVIDENCE. 
 
 ■ 1. POLICY. 
 
 (a) IKSTTKABLB INTEEEST. 
 
 (b) Validity. 
 
 (c) "What will defeat. 
 
 (d) Geneeally. 
 
 (a) Insurable interest. 
 
 1. A father has a pecuniary interest in the life of a minor child ; and 
 an insurance of the life of such child is not within the rule of law, by 
 which wager policies are declared void. 3fUohell v. Union L. Ins. Co., 
 XLV. 104. 
 
 (b) Validity. 
 
 2. A void policy of insurance is not rendered valid by an assignment 
 of the holder's interest therein, approved by the directors of the com- 
 pany that issued it ; and the assignee cannot maintain an action upon it. 
 Uastman v. Carrol Co. M. F. Ins. Co., xlt. 307. Merrill v. Farmers 
 &M.M.F. Ins. Co., XLvm. 285. 
 
 3. Where one, in his application to a mutual insurance company, re- 
 quested insurance for a certain sum on his store, and a further sum on 
 his stock of goods therein, and a policy was made accordingly, and one 
 note was given for the premium on both sums, Held, that the contract of 
 insurance was entire ; and, if the representation of the insured, that he 
 was the owner of the store was false, the policy would be wholly void. 
 Lovejoy v. Augusta M. F. Ins. Co., xlt. 472. Gould v. York Co. M. 
 F. Ins. Co., xtvii. 408. Day v. Charted' Oak F. & M. Ins. Go.,-li. 91. 
 
 18 
 
274 INSURANCE. 
 
 4. A., by letter, applied for insurance to B., ■who was agent of an in- 
 surance company, and who thereupon filled out an application reciting 
 that there was " no mortgage " on the property to be insured, and signed 
 the name of A. to it, without his knowledge. A policy was issued refer- 
 ring to the application as part of it, which was accepted by A. Held, 
 
 (1) That, by accepting the policy, the pinintifF covenanted and engaged 
 that the application containea a just, full, and true statementof the con- 
 dition of the property insured, and he thereby ratified the application; 
 
 (2) That the company were not bound by the letter from the assured to 
 theii- agent; and (3) That the representation that there was "noVnort- 
 gage " on the propeity was material, though the company had no lien on 
 the real estate mortgaged. Richardson v. Maine Ins. Co., xi.vi. 394. 
 Gould V. York Co. M..F. Ins. Co., xlvii. 403. Merrill y. Farmers dt 
 M.M.F. Ins. Co., xltiii. 285. 
 
 5. Where the application provides that any concealment of the condi- 
 tion or character of the property will render the policy void, and the ap- 
 plicant represented the property free from incumbrance, when there was 
 a mortgage upon part of it, the policy was held void whether the false 
 representations were by mistake or design. Gould y. York Co.M.F. 
 Ins. Co., XLVII. 403. 
 
 6. And when a policy covered a store and the goods in it, and the 
 property was represented to be unincumbered, when, in fact, the store 
 was under a mortgage, the policy is void as to the goods as well as to the 
 store. Gould v. York Co. M. F. Ins. Co., xlvii. 403. Bay v. Charter 
 Oak F.&M. Ins. Co., li. 91. 
 
 7. D. received a deed, absolute in form, of certain real estate, to secure 
 him against loss for liabilities he had assumed or might assume for the 
 grantor ; he afterwards gave him a written agreement to reconvey, if 
 he should be indemnified. The pi'operty was insured by D. without dis- 
 closing the nature of his interest tiierein ; one of the conditions in the 
 policy being that " property held in trust," to include that "held as col- 
 lateral security," must be insured as such. Held, that the property was 
 held by U. as collateral security and therefore " held in trust," within 
 the meaning of the policy. Day v. Charter Oak F. & M. Ins. Co., li. 91. 
 
 8. Where, by the terms of a policy, it is to be void if the assured does 
 not show that he has accurately represented the nature and extent of his 
 interest in the property insured, if there are several different parcels, 
 valued separately,— one of which he held as collateral security, and 
 another, he had no interest in, — his omission to disclose these facts is 
 fatal to his right to recover for any portion of the property covered by 
 the policy. Day v. Charter Oak F. & M. Ins. Co., li. 91. 
 
 9. Where a policy is void as to the building, it is also void as to furni- 
 ture insured thereby. The contract being indivisible, is wholly void, 
 if void in part. Barnes v. Union M. F. Ins. Co., ll 110. 
 
 10. Where one of the conditions of insurance — which is made part of 
 the policy — is, that " a false description or the omitting to make known 
 any fact or feature in the risk which increases the hazard "shall render 
 the policy void ; and the application — also made a part of the policy- 
 describes the building insured to be a " wooden four-story paper-mill, 
 60 X 70 feet from above basement, ten feet between floors, and ceiled 
 with wood," and not only makes no mention of a brick "bleach-house" 
 20 X 30 feet, which is separated from the paper-mill by a wooden shed- 
 
INSURANCE. 
 
 275 
 
 roofed building, known as a "salt-box," 24 x 18 feet and 14 feet high, 
 one enil of which is formed by the paper-mill and the other by the 
 "bleach-house," but on the contrary, in answer to a written question, the 
 application dechires there is no building within 300 feet of the mill, ex- 
 cept the "stock-house" — which is other than the "bleach-house" or 
 "salt-box," Held^ that whether the "bleaeh-house " and "salt-box" 
 are a part of the paper-mill or not, the warranty on the part of the in- 
 sured is broken. Day v. Oonway Ins. Co., lii. 60. 
 
 11. Where a policy of insurance, issued to the plaintiff by an agent 
 since May 1, 18t51, bore upon its face the name of such agent, and no 
 written application was made, but the agent examined the premises and 
 wasfnlly informed of the state of the title of the insured; and one of the 
 conditions of the policy,- which, by its terms, was made a part thereof, 
 was that "if the property to be insured be held in trust or on commis- 
 sion, or be a leasehold, or other interest not absolute, it must be so rep- 
 resented to the company, and expressed in the policy, in writing, other- 
 wise the insurance, as to such property, shall be void ; and the interest 
 of the insured was in fact that of mortgagee, but that fact, or that his in- 
 terest as such was to be insured, did not appear in the policy. Held, (1) 
 That, if there be an error in the description of th? interest of the insured 
 in the policy, it is im|jutable to the defendant's agent, and the policy is 
 not void by reason thereof; and (2) That, if there had been a misrepre- 
 sentation as to the interest of the insured, it would not prevent a recov- 
 ery to the full amount of the interest insurable, unless such misrepre- 
 sentation was fraudulent. Emery v. Piscalaqua F. & M. Ins. Co, Ln. 
 322. 
 
 13. Chapter 34, of the Public Laws of 1861, simply annuls the pro- 
 visions at variance with its requirements, leaving the policy in all other 
 respects in full force. Emery v. Piscataqua F. & M. Ins. Co., lii 
 822. 
 
 13. By c. 34, § 2, of the Public Laws of 1861, an agent authorized by 
 an insurance company to receive applications for insurance or payments 
 of premium, or whose name shall be borne on the policy, shall be 
 deemed the agent of said company in all matters of insurance; any ap- 
 plication for insurance or valuation or description of the property, or of 
 the interest of the insured therein, if drawn by said agent, shall be con- 
 clusive upon the company but not upon the insured, although signed by 
 him ; all acts, proceedings, and doings of such agent with the insured, 
 shall be as binding upon the company as if done and performed by the 
 person specially empowered or designated therefor by the contract. 
 Emery v. Fiscataqua F. & M. Ins. Co., lii. 322. Caston v. Man Ins 
 Co., Liy. 170. 
 
 14. By § 3, all statements of description or valuation in any contract 
 ofinsuranceor application therefor, shall be deemed representations and 
 not warranties. Any misrepresentation of the title or interest of the in- 
 sured, unless the same is fraudulent, shall not prevent his recovering on 
 the policy the amount of his insurable interest. Emery y. Piscataaua 
 F.&M. Ins. Co., LII. 322. Fox v. Fhenix F. Ins. Co., lii. 333. 
 
 15. By § 5, all provisions contained in any policy or contract of insur- 
 ance, in conflict with any of the provisions of this act, are hereby de- 
 clared void, and all contracts of insurance hereafter made, renewed or 
 extended in this State or on property within this State, shall be subject 
 
276 INSURANCE. 
 
 to the provisions of this act. Emery v. Piscataqua F. & M. Ins. Co., 
 Lii. 322. Bailey v. Hope Ins. Co., lvi. 474. 
 
 16. A fire policy was issued to L., the owner of the building insured. 
 Subsequently L. sold one-half of the building to a partner, and formed 
 the copartnership of L. & Co. At the expiration of the original policy, 
 a renewal certificate was issued, reciting the receipt of the premium 
 from " L. & Co.," the continuation of the policy for three years, and that 
 the "renewal is made upon condition, that the original, policy continues 
 in force, and that there has been no change in the risk since first in- 
 sured, not noticed on the policy and books of this company, otherwise 
 this renewal is not binding." In an action to recover a loss under the 
 renewal. Held, that the insurers intended to continue the insurance on 
 the property and on the terms and conditions expressed in the policy, 
 but to the parties who paid the premium. Lancey v. Phoenix Ins. Co., 
 Lvi. 562. 
 
 (a) What will defeat. 
 
 17. A description of a house in a policy, as " occuijied by " the in- 
 sured, is a description merely, and is not an agreement that the insured 
 should continue in the occupation of it. Joyce v. Maine Ins. Co., xlv. 
 168. 
 
 18. The insured was bound by his policy to give notice if anything 
 should occur by the acts of others to increase the risk, the company 
 thereupon having the right, at their option, to terminate the insurance. 
 The risk was so increased, and the insured gave no notice. The house 
 insured was subsequently burnt ; but the fire originated from causes in 
 no way connected with the facts by which the risk had been increased. 
 Held, that as it could not be certainly assumed that the company, if 
 notified, would have terminated the insurance, the liability of the com- 
 pany upon the policy still continued.' Joyce v. Maine Ins. Co., xlv. 
 168. 
 
 19. "Where, by the terms of a policy of insurance, it was to be abso- 
 lutely void, if the insured, without the assent of the company, alienated 
 the property in whole or in part, and he conveyed, it in mortgage, and 
 afterwards, by a deed recorded, released to another person his right of 
 redemption, and took back a bond of defeasance, which he neglected to 
 have recorded. Held, in an action to recover for a loss that had occurred, 
 that it appearing of record there had been an alienation of the property, 
 the policy became void; and that the lien of the mortgagee upon the 
 policy, was defeated by the alienation of the property. Tomlinson v. 
 Monmouth M. F. Ins. Co., xlvii. 282. 
 
 20. Where the application represented that no cotton or woolen waste 
 or rags were kept in or near the property to be insured, and it appeared 
 that at the time of the fire fifteen hundred pounds of rags were in the 
 store, this will not avoid the policy, it not being shown that the represen- 
 tation was untrue when made, and neither the policy, charter, or by-laws 
 of the company provide that the keeping of such articles shall invali- 
 date the insurance. Gould v. York Co. M. F. Ins. Co., xlvii. 403. 
 
 21. Even if it were a warrantj'-, the defense that the house was unoccu- 
 pied at the time of the fire would fail, unless it appeared that the risk 
 was increased by want of a tenant. Ilerrick v. Union M. F. Ins. Co., 
 xLTiit. 558. 
 
INSURANCE. 277 
 
 22. When a policy, if assigned without the consent of the insurers, is 
 ,to be void, and the assured executed an assignment to be delivered, after 
 such consent had been obtained, but not delivered, because consent was 
 withheld, the assignment is inoperative to affect the rights of the parties. 
 Smith v. Monmouth M. F. Ins. Co., l. 96. 
 
 23. A mortgage is not such an alienation of property as will defeat a 
 policy of insurance which provides that if the property insured shall be 
 alienated, the policy shall be void. Smith v. Morvmouth M. F. Ins. Co., 
 1.96. 
 
 24. The plaintiff was insured by the defendant company $2000 upon 
 his stock of clothing, and delivered to them an account, on oath, claim- 
 ing his loss to have been $2400. On trial, the jury assessed his damages 
 at $1060. The verdict, on defendants' motion, was set aside, one of the 
 conditions annexed to the policy being " that all fraud or false swearing 
 shall cause a forfeiture of all claims on the insurers, and shall be a full 
 bar to all remedies against the insurers on the policy." Wall v. Howard 
 Ins. Co., LI. 32. 
 
 25. Where a policy upon the interest of a mortgager was to be void if 
 the estate shall be alienated or incumbered by sale, assignment, or other- 
 wise ; and his right to redeem the property was seized and sold on an 
 execution. Held, that the sheriff's sale to a third person of the right of 
 redemption was an incumbrance upon the property, and if the title thus 
 acquired, is perfected by lapse of time, it constitutes an alienation. Camp- 
 bell V. Hamilton M. Ins. Co., li. 69. 
 
 26. Partition on petition by one tenant is equivalent to an alienation 
 on the part of a co-tenant, and will avoid a policy. Barnes v. Union M. 
 F. Ins. Co., LI. 110. 
 
 27. A bond for the conveyance of land, upon the payment of money at 
 a specified time, is not an incumbrance upon premises insured, if the time 
 has expired and the money has not been paid, even if the obligor has 
 verbally waived the time. JSTewhall v. Union M. F. Ins. Co., lii. 180. 
 
 28. Where the application represented that one stove was used in tbe 
 building insured, and another stove was subsequently put in and used 
 without notice ; and the by-laws of the defendant company provided 
 that " if the risk shall be increased by the insured or others by any change 
 of the circumstances disclosed by the application," &c., " the policy shall 
 be void," Held, that it is incumbent on the defendant company to show 
 that the addition of the second stove increased the risk, if they would 
 avoid the policy. Newhall v. Union M. F. Ins. Co., lii. 180. 
 
 (d) Generally. 
 
 29. A policy of insurance, having thereon a printed impression of the 
 seal of the Insurance Company, is not to be regarded as a sealed instru- 
 ment. Mitchell V. Union Life Ins. Co., xlt. 104. 
 
 30. A policy of insurance was obtained, not from the defendants, upon 
 a stock of goods and merchandise contained in a certain building desig- 
 nated in the policy. Subsequently, another policy was obtained, of the 
 defendants, upon a stock of merchandise "in the chambers" of the same 
 building. The goods in the chambers were destroyed by fire. In an 
 action upon the latter policy, Held, (1) That there was a latent ambigu- 
 ity in the policies, in regard to the merchandise intended by the parties 
 
278 INSURANCE. 
 
 to be embraced therein, properly explainable by parol testimony ; and 
 (2) That it being proved that the goods in the chambers were not in- 
 tended to be included in the former policy, the defendants were liable for 
 the whole loss. Storer v. Elliot F. Ins. Co., xlv. 175. 
 
 31. The provisions of the charter of an insurance company, incorpora- 
 ted in 1852, are not affected by chapters seventy-six and seventy-nine of 
 the revised statutes of 1841, so far as they are inconsistent therewith. 
 Tork Co. M. F. Ins. Co. v. Knight, xLvm. 75. 
 
 32. Where the by-laws of a mutual insurance company require that 
 "notice of assessments, or classes of property to be assessed, shall he 
 given by the treasurer and published in one or more newspapers printed 
 in the county of York, three weeks successively, the last publication of 
 which shall be not less than six days prior to the time fixed for the pay- 
 ment," &o., the following notice : "The members of the third class of the 
 York County Mutual Fire Ins. Co. are hereby notified, that the directors 
 of said company have oi'dered an assessment on the members of said 
 class, payable on or before the 15th of Feb., 1857, with interest thereaf- 
 ter," dated and signed by the treasurer, is sufficient. York Co. M. F. 
 Ins. Co. v. EJnight, xlviii. 75. 
 
 33. Although R. S., 1841, c. 79, requires a demand before a mutual in- 
 surance company can maintain an action for an assessment, yet, if the 
 charter subsequently enacted, provides that such action may be brought 
 after notice in a paper, the provisions of the charter control the statute. 
 
 York Co. M. F. Ins. Co. v. Knight, xlviii. 75. 
 
 34. The secretary of an insurance company is presumed to be the offi- 
 cial agent to carry into effect the votes and directions of those who have 
 the management of its affairs, unless the contrary appears. Learyj. 
 Slanchard, xlviii. 269. 
 
 35. In a company, whose business is conducted by the president, vice- 
 president, and secretary, subject to the direction of a board of trustees, 
 the secretary being empowered verbally by the president and vice-presi- 
 dent, with the knowledge of the trustees, to indorse the premium notes 
 of the company, is thereby authorized to transfer the title of a note in- 
 dorsed by him. Leary v. Blanchard, xlviii. 269. 
 
 36. There is a distinction between a representation of an expectation, 
 and the representation of an existing fact. Herrick v. Union M. F. 
 Ins. Co., XLVIII. 558. 
 
 37. The latter is in the nature of a waiTanty, the former does not 
 amount to a warranty. Herrick v. Union M. F. Ins, Co., xlviii. 558. 
 
 38. In his application to the question, " who occupies the building,' 
 the owner answered, " will be occupied by a tenant," Held, that the an- 
 swer was not astipulation that the building should be so occupied, but 
 was rather the representation of his expectation that it would he occu- 
 pied by a tenant, and not by himself. Herrick v. Union M. F. Ins. Co., 
 xlviii. 558. 
 
 39. Warranties in a policy of insurance, or in the application when 
 made a part of the policy, must be fully kept and performed, without 
 reference to the question whether they are material or immaterial. With- 
 erell v. Maine Ins. Co., xlix. 200. 
 
 40. But misrepresentations do not avoid a policy unless they are ma- 
 terial or prejudicial to the insurers. Wither ell v. Maine Ins. Co., xux. 
 200. 
 
INSUEANCE. 
 
 279 
 
 41. The renewal of a policy of insurance, without any new applica- 
 tion, stands upon the same ground as the original policy. Witherell v. 
 Maine Ins. Co. xlix. 200. 
 
 42. An insurance company holding themselves out as solvent, are not 
 conclusively bound to know whether they are so or not; but if the offi- 
 cers neglect to use due care and diligence to know the condition of the 
 company, and hold it out as solvent, when by use of such care and dili- 
 gence they might know it was insolvent, there would be good reason for 
 holding them guilty of fraud. Brown v. Donnell, xlix. 421. 
 
 43. The by-laws of a mutual insurance company provided that any 
 person giving an " advance note " should become a member thereof; and 
 that the directors may give up any or all of the advance notes, when- 
 ever they should deem it for the interest of the company to do so. The 
 defendants gave the company an advanced note, specifying that it should 
 be subject to assessments "at an equal per cent with all other advance 
 notes." Held, (1) That the assessment is to be made upon all the advance 
 notes remaining uncancelled at the time it was made ; and (2) That the 
 signers of advance notes are liable for the full amount thereof, if re- 
 quired to pay the debts of the company. Maine M. M. Ins. Co. v. 
 Suianton, xlix. 448. 
 
 44. Where an insurance company was authorized to cancel such of its 
 stock notes as the company should decree to be worthless, if all its cor- 
 porate powers had been vested in a board of directors, the cancellation 
 of such notes, by tlio directors, was held to be equally effectual ; and an 
 assessment made upon the amount of the remaining notes, a valid one. 
 Maine M. M. Ins. Co. v. Mai, l. 301. 
 
 45. Where its by-laws provide for an assessment for the payment of 
 losses " after the earned premiums shall have been used up," if there be 
 earned premiums that are uncollected and worthless, they may be prop- 
 erly regarded as " used up;" and whether the claims were worthless was 
 a question of fact. Maine M. M. Ins. Go. v. JVeal, l. 301. 
 
 46. And an instruction that " if the company had not assets enough 
 on hand unappropriated, and dues collectable, to pay these losses, they 
 could make the assessment, to the amount of such deficiency and not 
 otherwise," is not open to exceptions by the defendant. Maine M. M. 
 Ins. Co. V. JVeal, l. 301. 
 
 47. For has he any just ground of complaint, that the directors did not 
 strictly comply with the b>-laws, and credit to the makers of the notes 
 the net profits of a certain yeai-, it appearing that both for the years pre- 
 ceding and subsequent, the losses greatly exceeded the profits ; for 
 thereby he sustained no damage, his assessment being so much less. 
 Maine M. M. Ins. Co., v. JVeal, l. 301. 
 
 48. Where the application covenants that it contains "a just, full, and 
 true exposition of all the facts and circumstances in regard to the condi- 
 tion, situation, value, and risk of the property to be insured, so far as the 
 same are known to the applicant, and are material to the risk;" and the 
 policy recites that the application is made a part of the policy, and that 
 the policy "is made and accepted upon the representations of the as- 
 sured in his application;" the statements in the application, if warran- 
 ties, are such only so far as the ficts stated " are known to the applicant, 
 and are material to the risk." Garcelon v. Hampden F. Ins. Co., l. 580. 
 
 49. But whether deemed to be representations, or warranties limited 
 
280 INSURANCE. 
 
 in their character, the question as to their materiality, and as to the 
 knowledge of the applicant, is properly left to the jury. Garcelon v. 
 Hampden F. Ins. Co., i. 580. 
 
 50. Where a mortgagee assigns the mortgage and notes secured 
 thereby, with a covenant that he is "lawfully seized in fee of said notes 
 and has good right to sell the same," a claim of the mortgagee upon an 
 insurance company by an order from the mortgager, for money due in 
 consequence of the destruction of the building upon the mortgaged 
 property, and to be indorsed upon the mortgage notes, passes with the 
 assignment of the mortgage. Haskell v. Monmouth F. Ins. Co., lii. 128. 
 
 51. If the mortgager obtains an assignment of the claim upon the 
 insurance company, from such assignee, he is entitled to collect the same 
 of the company, and payment by them to the mortgagee is no defense to 
 an action therefor by the mortgager. Haskell v. Monmouth F. Ins. Co., 
 LII. 128. 
 
 52. A forfeiture of a policy of insurance is to be construed strictly ; 
 and its enforcement is not to be favored. North Berwick Go. v. New 
 Mig. F.t&M. Ins. Co., lii. 336. 
 
 53. The act receiving an additional premium for a variation of the risk 
 after the existence of facts which would authorize a forfeiture had be- 
 come known to the insurers, must, in the absence of fraud and conceal- 
 ment, be regarded as waiver of the forfeiture. North Berwick Co. v. 
 New Eng. F. <& M. Ins. Co., lii. 336. 
 
 54. From the answer to a question in an application, that the factory 
 insured is "worked usually" certain specified hours in the daytime "in 
 the summer," and certain specified hours "in the winter — short time 
 now," it may be inferred that it was expected at times the factory would 
 be run nights. North Berwick Co. v. New Eng. F. & M. Ins. Co., lii. 
 336. 
 
 55. Where an agent, by the power of attorney appointing him, was 
 authorized to "make insurance by policies of" the defendant com- 
 pany, " to renew the same, and to indorse upon policies issued by him 
 permission to the assured to vary the risk, according to the rules and in- 
 structions he shall from time to time receive from said company, and all 
 policies, issued by said agent, shall be to all intents valid and binding 
 upon said company;" and, upon the receipt of an additional premium, 
 fixed by him, such agent varied the risk by a written permission to run 
 the factory insured " day and night," until the expiration of the policy, 
 without prejudice;" and the factory was burned in the night. Held, that 
 in the absence of any proof that the agent had violated any rules or regu- 
 lations he may have received from the company, the permit to run nights 
 was binding on the company, and the agent had ample power to waive 
 such previous running which had come to his knowledge. North Ber- 
 wick Co. V. New Eng. F. & M. Ins. Co., lii. 336. 
 
 56. When the plaintiffs procured a policy on their merchandise in their 
 store-house, and another on their factory ; and the former contained a 
 provision that, " if the risk be increased by any means whatever within 
 the control of the assured," it should be void, but no limitation as to the 
 time the plaintiff's were to run their factory ; but such limitation was 
 contained in the latter ; and, subsequently, such limitation was removed 
 by the written permit of the defendants in consideration of an addi- 
 tional premium, Held, that the policies were distinct and independent ; 
 
INSUEANCE. 
 
 281 
 
 and the removing of the limitation was not an " increase of the risk," 
 within the meaning of the former policy. North Berwick Co. v. New 
 Eng. F.&M. Ins. Co., lii. 336. 
 
 57. By c. 34, § 5, of the Public Laws of 1861, in case of loss, under a 
 policy against fire, the insured shall notify the company or its agent of 
 the fire, and, within a reasonable time afterwards, shall deliver to the 
 company or its agent, as particular an account of the loss and damage as 
 the nature of the case will admit, stating therein his interest in the prop- 
 erty, what other insurance, if any, existed thereon, in what manner the 
 building insured was occupied at the time of the tire, and by whom, and 
 when and how the fire occurred, so far as he knows or believes ; which 
 statement shall be sworn to before some disinterested magistrate, who 
 shall certify that he has examined the circumstances attending the loss, 
 and has reason to believe and does believe such statement is true. Lewis 
 V. Monmouth Mutual Fire Ins. Co., lii. 492. 
 
 58. The ofiicers of a mutual insurance company against fire have power 
 to waive any defects in the preliminary proof required by said section. 
 lewis V. Monmouth Mutual Fire Ins. Co., lii. 492. 
 
 59. When the directors of an insurance company find the notice or pre- 
 liminary proofs of a loss to be insufiicient, it becomes their duty to no- 
 tify the assured of the defect, and a failure to do so is a waiver. Lewis 
 V. Monmouth Mutual Fire Ins. Co., i.n. 492. Walker v. Metropolitan 
 Ins. Co., Lvi. 371. Bailey v. Hope Ins. Co., lvi. 474. 
 
 60. If the directors neither make objection to the notice and proofs, 
 nor ask for any further information in this respect, but base their objec- 
 tions upon the ground of overvaluation, and refer the matter to their 
 secretary for adjustment, who offers to pay a certain amount, but less 
 than the whole ; the company thereby waives any defect in the notice or 
 preliminary proofs. Lewis v. Monmouth Mutual Fire Ins. Co., lii. 492. 
 
 61. A mutual company has no right to assess a premium note for losses 
 occurring after the cancellation of the policy, or for anticipated losses 
 arising from a supposed failure of others to contribute their proportion of 
 losses occurring after such cancellation. York Co. M. F. Ins. Co. v. 
 Turner, liii. 225. 
 
 62. The condition in a policy of life insurance, "that in case the in- 
 sured shall die by his own hand, or in consequence of a duel, or the vio- 
 lation of any State, national, or provincial law, or by the hands of jus- 
 tice, this policy shall be null and void, and of no eflFect," does not in- 
 clude suicide by an insane man in a fit of insanity. Fastabrook v. 
 Union M. Life Ins. Co., jay. 224. 
 
 63. A contract of insurance against fire is not required by the common 
 law, nor by R. S., c. 49, § 12, to'be in writing. Walker v. Metropolitan 
 Ins. Co., LVI. 371. 
 
 64. Neither does § 14 of c. 49, either in terms or by implication, abridge 
 the powers granted in § 12, in respect to the mode of effecting insurance. 
 
 Walker v. Metropolitan Ins. Co., lvi. 371. 
 
 65. What will constitute a contract of insurance. Walker v. Metro- 
 politan Ins. Co., lvi. 371. 
 
 66. An insurance company, chartered by the legislature of Rhode Isl- 
 and, appointed an agent in accordance with R. S., c. 49, § 39, to do busi- 
 ness in Portland. Upon receipt of a letter from the plaintiff, residing in 
 
282 
 
 INSUEANCE. 
 
 N. H., asking for a policy upon a hotel belonging to the plaintiff and his 
 partner, situated in N". H., the agent issued and sent a policy dated at 
 Portland, to the plaintiff as directed. In an action upon the policy. 
 Held, that the place of the contract was in this State, and that the laws 
 of this State must govern it. Bailey v. Hope Ins. Co., lvi. 474. 
 
 67. A condition in such a policy requiring that the assui'ed, in case of 
 a loss, shall procure a certain " certificate under the hand of a magistrate 
 or notary most contiguous to the place of the fire," being in conflict with 
 § 5 of 0. 34 of Public Laws of 1861, is void. Bailey v. Hope Ins. Co., 
 LVI. 474. 
 
 68. A letter from the secretary of an insurance company, written to 
 the assured upon receipt of the jjreliminary proofs of loss, making objec- 
 tion to the magistrate who signed the certificate, but not to the form of 
 the certificate, may be regarded as a waiver to any defect in the form. 
 Bailey v. Hope Ins. Co., lti. 474. 
 
 69. An insurance, ^nwa/acie, has reference only to the legal interest 
 of the insured. Bailey v. Hope Ins. Co., lti. 474. 
 
 II. LOSSES. 
 
 70. If the president of an insurance company is empowered and re- 
 quired, by the by-laws, to adjust and pay all losses, authority to transfer 
 and dispose of the funds of the company for that purpose, including ne- 
 gotiable paper owned by them, may be presumed ; for the imposition of 
 the duty implies the grant of authority necessary to its performance. 
 Baker v. Cotter, xlv. 236. 
 
 71. If a mortgagee insure his own interest, without any agreement be- 
 tween him and the mortgager therefor, and a loss occurs, the mortgager 
 is not entitled to any part of the sum paid upon such loss, to be applied 
 to the discharge or reduction of his mortgage debt. Concord TJ. M.F. 
 Ins. Co. V. Woodbury, xlv. 447. 
 
 72. Aliter, when the mortgagee effects insurance at the request and 
 cost, and for the benefit of the mortgager. Concord IT. M. F. Ins. Oo. 
 V. Woodbury, xlv. 447. 
 
 73. Whether a company, which has insured property for the mortga- 
 gee, is entitled to be subrogated to the rights and claims which he has to 
 the property and mortgage debt, upon payment of the loss which had 
 accrued, quaere. Concord U. M. F. Ins. Co. v. Woodbury, xlv. 447. 
 
 74. The conditions in policies, requiring an account of the loss incurred, 
 are to be construed literally in favor of the assured. Bartlett v. Union 
 M. Ins. Co., XL VI. 500. 
 
 75. If notice of a loss is given as required by a policy, and it is defect- 
 ive, the company should object to it in season to allow the assured to 
 remedy the defect; otherwise they will be considered as waiving excep- 
 tions for that cause. Bartlett v. Union M.Ins. Co., xlvi. 500. Lewis v. 
 Monmouth Mutual Fire Ins. Co., lii. 492. Walker v. Metropolitan Ins. 
 Co., LVI. 371. Bailey v. Hope Ins. Co., lvl 474. 
 
 76. Where the by-laws of an insurance company require the assured 
 to give notice in writing of a loss, within sixty days, a letter written by 
 an agent of the company, at the request of the assured, giving notice of 
 
INSUKANCE. 
 
 283 
 
 the loss, and sent in due time, is a snfficient compliance with the require- 
 ment, although the fact of its having been written at his request does 
 not appear in the letter. , Stimpson v. Monmouth M. F. Ins. Co., xlvii. 
 379. 
 
 77. If the assured uses his utmost exertions in protecting and securing 
 the property insured, at, during and subsequently to the fire, a loss by 
 larceny falls upon the insurers. Witherell v. Maine Ins. Co., xlix. 200. 
 
 78. If the notice of a loss to the insurers is sufficient in form, it is for 
 the jury to determine whether it is sufficient in substance. Witherell v. 
 Maine Ins. Co., xlix. 200. 
 
 79. Where, since the passage of c. 34 of Pub. Laws of 1861, the plain- 
 tiffs, as mortgagees of a part of the machine works and buildings occu- 
 pied by the mortgager, procured a policy of insurance upon their inter- 
 est, covering all the said works and buildings, Held, That in an action 
 on said policy, the plaintiffs could recover the amount of their policy, if 
 the loss upon the machine works and buildings, covered by the mortgage, 
 was more than the amount insured. Fox v. Phenix F. Ins. Co., m. 
 383. Emery v. Piscataqua F. & M. Ins. Co., lii. 322. 
 
 • 80. Where the plaintiffs, as mortgagees, procured a policy on their in- 
 terest in the mortgaged property, and the policy contains the usual ap- 
 portionment provision; and a subsequent mortgagee procures an insur- 
 ance in another company on the same property ; the plaintiffs in case of 
 loss, are not liable to be apportioned with such subsequent mortgagee, 
 but are entitled to recover the whole amount insured by them, being less 
 than the loss or damage to the property. Fox v. Phenix F. Ins. Co., 
 LH. 333. 
 
 81. In an action upon a policy, the defendants after recieving a notice 
 of the loss from their agent made at the request of the insured, cannot 
 under the specification of defense that, "if the house was destroyed, as 
 alleged, plaintiff never gave any legal notice thereof to the defendants," 
 require the plaintiff to prove thiit he delivered to them, or their agent, as 
 particular account of the loss, &c., as required by § 5, c. 34, of Pub. Laws 
 of 1861. Caston v. Monmouth M. F. Ins. Co., liv. 170. 
 
 82. It is no part of the duty of the assured, in case of a loss, to notify 
 the insurers of the time and nature of the risk ; and any misrecital in 
 these respects, contained in a notice of a loss, may be rejected as sur- 
 plusage. Walker v. Metropolitan Ins. Co., lti. 871. 
 
 III. MARINE INSTJEANCE. 
 
 83. Where the owners of a vessel have sustained loss by a peril in- 
 sured against, and they design to abandon her, their communication to 
 the underwriters, intended for a notice of an abandonment, should di- 
 rectly and in terms, authorize a legitimate inference, that the owners de- 
 signed thereby to abandon the vessel. Thomas v. Rockland Ins. Co., 
 XLV. 116. 
 
 84. Without such an abandonment, the undei-writers will not be liable 
 for an actual, or constructive, total loss, but only for a partial one, where 
 the vessel was abandoned at sea by her master and crew, and was after- 
 wards taken possession of by salvors, brought into port, libelled, and sold 
 under an order in admiralty. Thomas v. Rockland Ins. Co. xlv. 116. 
 
284 INSURANCE. 
 
 85. As to the mode of assessing damages in case of partial loss. 
 Thomas v. Rockland Ins. Co., xlv. 116. 
 
 86. A policy of insurance on a vessel (of whieh a deceased person was 
 a part-owner) obtained after the specific distiibution for the benefit of 
 the owners, cannot enure to the benefit of the administrator, whose in- 
 terest had ceased ; and whether it was for the benefit of the distributee 
 is matter of proof. Hose v. G'JBrien, l. 188. 
 
 87. Where the party who proeured the policy, a total loss having sub- 
 sequently occurred, has collected of the insurance company the amount 
 insured, an action for money had and received maybe maintained against 
 him by the assignee of a person who was part-owner when the insurance 
 was effected, for his share of the money, if commenced before such share 
 had been paid over to the assigner. liose v. O'Brien, l. 188. 
 
 88. If a policy of insurance on a vessel expire while she is supposed 
 to be on a voyage, and a second policy, for a different sum is taken, after 
 the expiration of the former, there is, in this country, no rule of law 
 which requires payment of that policy under which the vessel sailed, or 
 was last heard from, in the absence of proof of the time of loss. Clif- 
 ford V. Thomaston M. Ins. Co., l. 197. , 
 
 89. If an agent neglects his directions, to insure a cargo shipped to 
 him, and it arrives safely, although he would be liable to the owner for 
 damages in case of loss, he cannot maintain an action against the owner 
 for a premium on insurance. Storer v. Eaton, l. 219. 
 
 90. If one, having no interest in a vessel and merely acting as agent 
 for the owners, insures the vessel on his own account, the policy is void. 
 Sawyer v. Mayhew, li. 398. 
 
 91. One undertaking to act as agent of the owner, in insuring a ves- 
 sel, is bound to follow the instructions of his principal and to effect a 
 valid insurance; though he may be excusable as to a doubtful point of 
 law. Sawyer v. Mayhew, li. 398. 
 
 92. If, in such case, the agent does not obtain a valid policy which 
 might be enforced at law, he is responsible to his principal for the actual 
 damages sustained by him. Sawyer v. Mayhew, li. 398. 
 
 93. If the company was in good credit when the insurance was ef- 
 fected, and subsequently became insolvent, the damages will depend 
 upon the ability of the company at the time the right of action accrues. 
 Sawyer v. Mayhew, li. 398. 
 
 94. The seizure and destruction of a merchant vessel by belligerents, 
 on the high seas, is within the terms of a warranty in the margin of a 
 policy, by which the risk of "capture, seizure, or detention," is excepted 
 from the perils insured against. Dole v. Merchants M. M. Ins. Co., li. 
 465. 
 
 95. If the declaration on a policy of insurance contain sufficient al- 
 legations, which, if proved, would warrant a judgment for the phiiutiff; 
 and the defendants simply file the following specification of defense ; 
 "the defendants expect to prove the act of barratry on the part of the 
 master, which act was not covered by the policy;" the plaintiff may 
 safely rest his case after reading the writ to the jury ; and he will be en- 
 titled to a verdict, unless the defendants, taking upon themselves the 
 burden of proof, maintain their specified defense. Buss v. Waldo Mnt. 
 Ins. Co., Lii. 187. 
 
INSURANCE. 
 
 285 
 
 96. If the master sailed the vessel at the halves, the usual terms, man- 
 ning and victualling her, and paying half of her port charges, and so con- 
 tinued to sail her till she was lost ; this fact, though nndisolosed to the 
 insurers, would not be material, except so far as it would' allow the de- 
 fendants to prove barratry on the part of the master; otherwise the fact 
 would be immaterial, unless the master, under such circumstances, with 
 no insurance, should be induced by selfish and corrupt motives to disre- 
 gard his duty to all parties interested in the safety of the vessel, him- 
 self among the rest, which the court will not assume. Hues v. Waldo 
 Mut. Ins. Co., Lii. 187. 
 
 97. When the plaintiff, before the loss, being bound on a voyage at 
 sea, went with O. A. to the defendant's office, and there their secretai-y 
 wrote on the back of the policy, in suit, the following order : " In case of 
 loss, pay to O. A.," and the plaintiff signed it and left it with O. A. for 
 collection in case of loss in the plaintiff's absence, the plaintiff being 
 then indebted to him on a balance of account, and, as security for said 
 balance, which was soon thereafter settled and paid. Held, that the 
 transaction did not constitute a pledge that would render the policy 
 void, but that it is inferable the policy was to be restored to the plaintiff, 
 on his return, in case no loss had occurred or collection made. Buss v. 
 Waldo Mut. Ins. Go., lii. 187. 
 
 98. To render an insurer liable, the peril insured against must be the 
 sole proximate cause of the loss, so causing it and so connected with it 
 that it could not have been otherwise produced. Dyer v. Piscataqua 
 F.& M. Ins. Go., Liii. 118. 
 
 99. And the loss must be so dependent upon the peril, that it is not 
 onlj^ the natural result, but is the necessary and inevitable result of it. 
 Dyer v. Piscataqua F. <& M. Ins. Go., liii. 118. 
 
 100. Where a vessel runs upon a reef and is obliged to put into an 
 intermediate port for repairs, and for want of funds or credit, the master 
 is obliged to sell a portion of the cargo to pay expenses of such repairs, 
 such sale is not the necessary result of the peril at sea. Dyer \. Piscat- 
 aqua F. <& M. Ins. Co., Lin. 118. 
 
 101. To render property a subject of general average, it must have 
 been sacrificed to avoid an impending peril, and for the benefit of all 
 concerned. Dyer v. Piscataqua F.&M. Ins. Co., liii. 118. 
 
 102. A part of a cargo sold by the master at an intermediate port, to 
 make permanent repairs of damage, caused by a peril passed, and not for 
 the benefit of all parties, is excluded from general average. Dyer v. Pis- 
 cataqua F. & M. Ins. Co., LIII. 118. 
 
 103. A stipulation in a marine policy, that in case any dispute shall 
 arise in relation to any alleged loss, it shall be referred to and deter- 
 mined by referees to be mutually chosen by the parties ; that no policy 
 holder shall maintain any action thereon until he shall have offered to 
 submit his claim to such reference ; and that in case any suit shall be 
 commenced without such offer, the claim shall be released and discharged, 
 and the company exempted from all liability under it is void. Stephen- 
 son V. Piscataqua F. tfc M. Ins. Co., liv. 55. 
 
 104. Such a policy, causing " S. & Co., to be insured, for whom it con- 
 cerns, in the sum of $700, on schooner ' Arbutus,' of," &c., « at and from," 
 &c., " the above to cover their claim for supplies furnished said vessel." 
 Held, (1) That the policy does not apply to the supplies only ; and (2) 
 
286 INSURANCE. 
 
 That any conversation between the owner and the plaintiffs tending to 
 show authority from the former to the latter to take out this policy is 
 admissible. Stephenson v. Piscataqua F. & M. Ins. Co., ixv. 55. 
 
 105. And when the policy provides that the defendant company is, in 
 ease of prior insurance, answerable only for so much as the amount of such 
 prior insurance may be deficient toward fully covering the property at 
 risk, Held, that the jury, if they found for the plaintiffs, should ascertain 
 the value of the schooner at the time of the loss ; and, if they should find 
 the whole amount of insurance did not exceed such value, and the loss a 
 total loss, they might assess as damages the amount insured by the de- 
 fendants with interest from the time it was payable. Stephenson v. Pis- 
 cataqua F. & M. Ins. Co., LIT. 55. 
 
 106. In case of a sale from necessity by the master, the salvage belongs 
 to the insurers ; and the assured is entitled to recover the full amount of 
 his claim, irrespective of the amount of salvage received by the insurers. 
 Stephenson v. Piscataqua F. & M. Ins. Co., liv. 55. 
 
 107. An alleged copy of a survey, not made by order of a court of ad- 
 miralty or under the sanction of an oath, is not admissible in evidence, 
 though certified and stamped by the American consul at the port whefe 
 the sui'vey was made. Stephenson v. Piscataqua F. Sa M. Ins. Co., 
 LIT. 56. 
 
 108. A policy of marine insurance covers not only losses that result 
 from injuries caused by extraordinary perils of the sea which become im- 
 mediately known, but such .also as result from latent injuries. Stephen- 
 son V. Piscataqua F. & M. Ins. Co., liv. 55. 
 
 109. The authority of a master to sell the vessel and cargo in case of 
 marine disaster, rests exclusively upon the ground of necessity, the bur- 
 den being upon the assured. Stephenson v. Piscataqua, F. & M. Ins. 
 Co., LIV. 55. 
 
 110. What will not constitute the requisite moral necessity. Stephen- 
 son V. Piscataqua F. & M. Ins. Co., liv. 55. 
 
 111. In the trial of an action on a policy of insurance upon a vessel, 
 the burden of proof is not upon the plaintiff to show in the first instance 
 the seaworthiness of the vessel at the inception of the voyage. Treat v. 
 
 Union Ins. Co., lti. 231. 
 
 112. In the outset, the presumption is that all things are as they 
 should be in this respect. Treat v. Union Ins. Co., lyi. 231. 
 
 113. The burden of proof would be changed if it appeared that the 
 vessel, without being subjected to any stress of weather, or to any unu- 
 sual buffeting of the seas or other extraordinary peril, had suddenly 
 foundered and gone down with all sails set shortly after leaving port. 
 Treat v. Union Ins. Co., lvi. 231. 
 
 See Trustee Peocess, 13. 
 Law and Fact, 18. 
 
 IV. PLEADING, PBACTICB, AND EVIDENCE. 
 
 114. The question whether certain specified facts would increase the 
 rates of insurance upon the property insured does not relate to matters 
 of science or skill. Joyce v. Maine Ins. Co., xlv. 168. 
 
INSURANCE. 
 
 287 
 
 115. Such a question calls for the ppinion of the witness upon the in- 
 fluence which ceitain ficts would huve upon others, and whether they 
 would be induced thereby to charge higher rates of premium ; and it is 
 inadmissible. Joyce v. Maine Ins. Go., xlt. 168. ■> 
 
 116. In a suit between other parties, parol evidence is admissible and 
 sufficient to prove that a person was president of an insurance company, 
 and that he had authority to indorse notes for the company. Baker v. 
 Cotter, XLV. 236. 
 
 117. The act of incorporation and by-laws of an insurance company 
 in the State of New Hampshire provided that, upon notice of los.s, "the 
 directors shall proceed as soon as may be to ascertain and determine the 
 amount thereof, and shall pay the same within three months after such 
 notice; but if the assured shall not acquiesce in their determination, his 
 claim may be submitted to referees, or he may, within three months after 
 such determination, bnt not after that time, bring an action at law against 
 said comjjany for such loss ; which action shall be brought at a proper 
 court in the county ot Meriimack," State of New Hampshire. A., having 
 insured in said company, notified them of a loss, but the directors neg- 
 lected to " ascertain and determine the amount thereof " Held, (1) That 
 the directors having neglected or refused to do their duty, A. might 
 maintain an action against the company for the loss, after the time lim- 
 ited in the by-laws ; and (2) That after a contract has been broken, the 
 remedy is regulated by law, and must be governed by the law of the 
 forum where redress is sought, and that A. was not bound by the pro- 
 vision that any suit should be brought in the county where the company 
 is established. Bartlett v. Union M. F. Ins. Co., xlvi. 500. 
 
 118. Where a policy of insurance against fire, issued by a mutual 
 company, has been assigned, the assignment ratified by the company, 
 and a new premium note given, and the assignee, by the terms of the 
 charter or by-laws, thei-eby becomes a member of the company, he may, 
 ■in case of loss, maintain an action on the policy in his own name. 
 Stimpson v. Monmouth M. F. Ins. Co., xlvii. 379. 
 
 119. A party cannot be bound by a paper which does not on its face 
 purport to have been made by him, or in his behalf, unless it be shown, 
 aliunde, that he has adopted it, or agreed to be bound by it. Witherell 
 V. Maine Ins. Co., xlix. 200. 
 
 120. Where a policy provides that the " said loss or damage shall 
 be paid within sixty days after due notice and proof thereof, in con- 
 formity to the conditions annexed to this policy," no action can be main- 
 tained thereon until the notice is given, and the required proof is fur- 
 nished. Davis V. Bams, xlix. 282. 
 
 121. Until such notice is given and proof furnished, the claim is con- 
 tingent, and the company cannot be charged as trustees of the insured 
 in an action commenced after a loss, but before notice and proof Ba- 
 vis V. Bavis, xlix. 282. 
 
 122. In the trial of an action upon a policy insuring a mortgager's in- 
 terest, the defendants will not be permitted to ask the mortgagee, when 
 testifying as a witness, " what claims he had against the mortgager, at 
 the time of the loss." They may ask " what claims he had against the 
 mortgager which were secured bv the mortgage." Emery v. Fiscataqua 
 F.&M. Ins. Co., Lii. 322. 
 
 123. Where, by the by-laws of a mutual insurance company, it is 
 
288 INSURANCE. • 
 
 made the duty of its secretary to keep a record of the doings of the di- 
 rectors and of the company, as well as to receive notice of a loss; his 
 letters addressed to the assured, so far as they admit a notice of the loss, 
 or communJeate the doings of the directors thereon, are admissible in an 
 action upon the policy. JOewis v. Monmouth Mutual Fire Ins. Oo., lh. 
 492. 
 
 124. When the declaration of a policy alleges due notice, and proof 
 of a loss, according to the conditions of the policy, and the specifications 
 of defense do not deny such allegations, the plaintiff need not show that 
 they had notified the defendants of the fire, or that they had furnished 
 them with any proofs or statements under oath, of the loss or damage. 
 Fox V. Conway F. Ins. Co., liii. 107. 
 
 125. If the specifications contain no reference to the notice required 
 by § 5, c. 34 of the Public Laws of 1861, and no question in relation 
 thereto is made at the trial at nisi prius, the objection cannot be made 
 before the court in banc. Fox v. Conway F. Ins. Co., Lin. 107. 
 
 126. It may well be doubted whether more was intended by said no- 
 tice than that the preliminary proof therein set forth, should, in all cases, 
 be deemed sufficient to authorize a maintenance of the suit. Fox v. 
 Conway F. Ins. Co., liii. 107. 
 
 127. It does not interdict the maintenance of a suit, where the notice 
 required by the conditions of the piolicy has been given. Fox v. Con- 
 way F. Ins. Co., LIII. 107. 
 
 128. In an action on a policy, the defendants cannot avail themselves 
 of the submission clause, unless such defense be set up in their specifica- 
 tions. I>yer v. Piscataqua F. & M.Ins. Co., liii. 118. 
 
 129. A declaration upon a policy of insurance against fire, alleging 
 that the company "had due notice and proof of the loss according to the 
 conditions of the policy," but containing no allegation that the company 
 " had due notice and proof of the loss according to the requirements of 
 § 5, c. 34 of the Public Laws of 1861," discloses no error, — it not appear- 
 ing that notice and proof required by the statute are not materially dif- 
 ferent from those required by the policy. Conway F. Ins. Co. v. Sew- 
 all, Liv. 352. 
 
 130. A suit in which the amount sued for exceeds five hundred dol- 
 lars, brought by a citizen of this State against a foreign insurance com- 
 pany, all of whose members are citizens of another State, may, on prop- 
 er motion, seasonably filed, and good and sufficient surety offered, be 
 removed for trial, from this court to the U. S. circuit court for the District 
 of Maine, notwithstanding the defendant corporation has complied 
 with the provisions of R. S., c. 49, § 39, and service has been made upon 
 the defendants, as therein provided. Hobbs v. Manhattan Ins. Co., lvi. 
 417. 
 
 131. ISTone of the provisions of E. S., c. 49, § 39, prohibit such removal, 
 or infringe upon the jurisdiction of the courts of the United States. 
 Hohhs V. Manhattan Ins. Co., lvi. 417. 
 
 See Amendment, 22, 26. 
 
INTBKI^T. 289 
 
 INTEREST. 
 
 1. Where one has agreed to pay interest on a debt which he had con- 
 tracted, and is afterwards prevented from paying the debt by the inter- 
 vention of a trustee jjrocess, interest thereon will continue to accrue dur- 
 ing the pendency of the suit, unless he has funds unemployed, which he 
 has specially reserved and appropriated for the payment of the debt. 
 Blodgett v. Gardiner, xlv. 542. 
 
 2. It will not be sufficient to discharge him from liability to pay inter- 
 est, that he had means or securities, from which, or the proceeds of which, 
 he might have paid the debt. Blodgett v. Gardiner, xlv. 542. 
 
 3. One who had lost by betting, and had demanded his money of the 
 stakeholder, who still held it and refused to restore it to him, may recov- 
 er the same with interest from the date of the demand. House v. Mc- 
 JKenney, xlvi. 94. 
 
 4. Compound interest cannot be allowed on a bill to redeem a mort- 
 gage, made to secure notes with annual interest; and an account ren- 
 dered by a mortgagee, upon the statute demand, covering such interest, 
 and so exceeding the notes and legal interest, cannot be regarded as such 
 an account as the statute requires. Stone v. Locke, xlvi. 445. Parhhiirst 
 V. Cummings, lyi- 155. 
 
 5. An action cannot be maintained to recover interest after payment 
 of the principal, unless there had been an express contract to pay inter- 
 est. Bobbins Cord. Co. v. Brewer, xlviii. 481. 
 
 6. When the parties agree upon certain persons to ascertain the value 
 of improvements on land demanded, and also the value of the land as 
 provided by R. S., c. 104, § 3, and exceptions are taken to the acceptance 
 of their report, which are overruled, interest will be allowed on the sum 
 from the time of the acceptance of the report at nisi prius. Cary y. 
 
 Whitney, l. 337. 
 
 7. On interest-bearing claims when partial payments have been made, 
 compute the interest on the principal sum, from the time when the in- 
 terest commenced, to the first time when a payment was made which ex- 
 ceeds alone or in conjunction with the preceding payments, if any, the 
 interest at that time due ; add the interest to the principal, and from the 
 sum subtract the payment made at that time, together with the preced-. 
 ing payments, if any, and the remainder forms a new principal, on which 
 to compute the interest and subtract the payment as upon the first prin- 
 cipal, and so on to the time of judgment. Pierce v. Faunce, liu. 351. 
 
 8. In indebitatus assumpsit, interest on the principal sum may be a 
 subject of charge as one of the items of the account annexed ; and it 
 may be recovered in that form of declaration upon proof of specific de- 
 mand of payment prior to the commencement of the action. CAadbourne 
 V. Hanscom, lyi. 554. 
 
 See Assumpsit, 27, 83, 43. 
 Error, 8. 
 Feaud, 13. 
 
 19 
 
290 JOINT TENANT, A;5JD TENANT IN COMMON. 
 
 INTOXICATING LIQUORS. 
 
 See Liquors. 
 
 JOINT STOCK ASSOCIATION. 
 
 By certain articles of agreement, B., L., and B.. were made trustees of a 
 joint-stock association for the purpose of publishing a newspaper. Each 
 shareholder was to advance ten dollars. Only five shares were subscribed 
 for beyond the number taken by B., L., and B. The press and necessary 
 materials were held in equal proportions by the three trustees, and, from 
 the trust property, they were to indemnify themselves against any loss 
 that might happen. Subsequently, II. and F. advanced money to partici- 
 pate in the enterprise and continue the publication, the trustees by a 
 written agreement having promised to liold the trust property as much 
 for the security of H. and F. as for their own. Held., that H. and F. were 
 jointly liable, with the other three defendants, to pay for printing-paper 
 subsequently furnished by the plaintiffs; and that to render all the de- 
 fendants liable, it was not necessary to declare against them as being 
 partners. Holt v. Blake, xlvii. 62. 
 
 JOINT TENANT, AND TENANT IN COMMON. 
 
 I. EIGHTS AiJD LIABILITIES. 
 11. KEMEDIBS. 
 
 I. EIGHTS AND LIABILITIES. 
 
 1. A tenant in common of undivided lands is liable in treble damages 
 for cutting timber on the common estate without proper notice, or for 
 cutting during the pendency of a petition for partition. Mills v. Rich- 
 ardson, xnv. 79. 
 
 2. The possession of one tenant in common of real estate is always 
 presumed to be in maintenance of the right of all the tenants, if his acts 
 will admit of that construction. And, if he enters upon the common 
 property and takes the whole rents and profits, without paying over any 
 share thereof to his co-tenants, such possession is not to be considered 
 adverse, but in support of the common title. Thornton v. York Bank, 
 XLV. 158. 
 
 3. But, if one tenant in common takes actual and exclusive possession 
 of the entire estate, under a deed of the whole, duly acknowledged and re- 
 corded, from one who has no title, and receives the rents and profits, de- 
 nying the right of any other person in the land, such possession is a dis- 
 seisin of his co-tenants. Thornton v. York Bank, xlv. 158. 
 
JOINT TENANT, AND TENANT IN COMMON. 
 
 291 
 
 4. When such possession is apparently exclusive and adverse, the pre- 
 sumption of disseisin may be rebutted by other evidence showing that 
 the i-ights of the co-tenants have been admitted or acknowledged. 
 Thornton v. York Bank, xlv. 158. 
 
 5. If a tenant in common take the whole or more than his share of the 
 income of the common property, without the consent of his co-tenant, he 
 is liable to such co-tenant in an action of assumpsit, after demand, for the 
 excess above his share. Dyer v. Wilbur, xlviii. 287. 
 
 6. But if he takes the income of a specified portion of the property, 
 with the consent of his co-tenant, such action cannot be maintained. 
 Dyer v. Wilhur, xlviii. 287. 
 
 7. Improvements upon land owned by partners as tenants in common, 
 made with partnership funds, are partnership property. Lane v. Tyler, 
 XLix. 252. 
 
 8. An express promise by a tenant in common does not bind his co- 
 tenant. Lane v. Tyler, xlix. 252. 
 
 9. By extending his execution upon his judgment debtor's undivided 
 part of a marine railway and land on which it is located, the judgment 
 creditor becomes thereby a tenant in common with the other owners. 
 Strickland v. Parker, lit. 263. 
 
 10. One tenant in common of such railway, having the general over- 
 sight of the business, receiving the income and paying the bills and divi- 
 dends, is not thereby authorized to sell the whole railway. Strickland y. 
 Parker, lit. 263. 
 
 11. If he does, and the purchaser thereupon removes the materials to 
 another town, and there makes them into a new railway on his own land, 
 a co-tenant may maintain trover for his proportion against the pui'chaser ; 
 and the seller's account for expenditures, &c., cannot be considered. 
 Strickland v. Parker, lit. 263. 
 
 12. Tenants in common of certain timber lands entered into a written 
 contract, wherein it was agreed that the one owning two-thirds of the 
 common estate should, in consideration of certain payments to be made 
 at specified times, sell his interest to the other owning the remainder, and 
 that " all timber or lumber to be holden to the " Tendor, " either on the 
 landing at the river, or at the mill," and the vendor to give the vendee 
 " a deed as soon as convenient or possible, said timber to be holden for 
 said payments to all intents and purposes." The vendee did not make 
 all the payments as agreed, nor demand or receive any deed, but sold 
 the timber on the stump to the defendant, who caused it to be cut and 
 hauled to the landing ; and, while rolling it into the river for the purpose 
 of driving it to market, the vendor appeared and claimed it, showing his 
 contract, and forbade the defendant's turning in any more ; but the de- 
 fendant persisting, the vendor immediately brought trover for the logs 
 before they had arrived at their destination. Held, (1) That the lien 
 created by the contract attached only to the plaintiff's two-thirds inter- 
 est in the logs ; (2) That the defendant's purchase made him a tenant 
 in common with the plaintiff; (3) That, as "between tenants in common, 
 the facts do not constitute a conversion. EXlgore v. Wood, lvi. 150. 
 
 See Mortgage, 38. 
 
292 JOINT TENANT, AND TENANT IN COMMON. 
 
 II. REMEDIES. 
 
 13. Trespass quare clausiim is the proper form of action to be brought 
 by one co-tenant against another for the treble damages for cutting tim- 
 ber on the common estate without proper notice, or for cutting timber 
 on the same pending a petition for partition. Mills v. Michardson, 
 XLiv. 79. 
 
 14. A tenant in common may maintain case against his co-tenant for 
 diverting the water from their common mill for separate use. jPillsbury 
 V. Moore, xliv. 154. 
 
 15. The disseverance and removal from the mill, of machinery attached 
 to a mill by spikes, bolts, and screws, and its incorporation with another 
 mill, by one of the co-tenants without the assent of the other, is such a 
 practical destruction of the common property, that an action of trespass 
 may be maintained by the latter against the former. Symonds v. Har- 
 ris, LI. 14. 
 
 16. Section 1, c. 61 of Public Laws of 1848 (R. S., c. 95, § 16), has 
 changed the common law respecting the remedies of tenants in common, 
 and it applies as well to cases of personal occupancy by a co-tenant, as 
 to the receipt of rent by a sub-tenant. Cutler v. Currier, liv. 81. 
 
 17. The action may be maintained under this statute, although the de-- 
 fendant did not occupy all the joint estate. Cutler v. Currier, liv. 81. 
 
 18. In an action founded upon the statute of 1848, c. 61, § 1 (R. S. of 
 1857, c. 95, § 16), brought by a minor against the administratrix of a de- 
 ceased co-tenant, the plaintiff alleged a tenancy in common of the prem- 
 ises desci'ibed, in equal shares between himself^ one E. B. R. and the de- 
 fendant's intestate ; the taking of the whole of the rents, profits, and in- 
 Come of the estate by said intestate till his death, without the plaintiff's 
 consent and against his objection ; and a demand on said intestate, in his 
 lifetime, anil a refusal and a demand on the defendant. The defendant, 
 in her specifications of defense, alleged, (1) the statute of limitations, (2) 
 the consent of the plaintiff and his guardian, and (3), the expenditure on 
 the premises of more than the value of the rents, &c. Held, (1) That 
 the tenancy in common, caption of the profits, and the demand and re- 
 fusal were admitted by the pleadings. (2) That neither the objection 
 that the said intestate occupied the premises as executor, nor that the 
 plaintiff's father was tenant by courtesy of the same, is open to the de- 
 fendant; and (3) If they were, she could not avail herself of them on 
 exceptions to the refusal of the presiding judge to order a nonsuit. 
 Cutler V. Currier, liv. 81. 
 
 19. In the trial of such an action, an instruction that the plaintiff, be- 
 ing a minor and without a guardian during the whole time covered by 
 the claim, was incapable of giving consent to the occupancy by his co- 
 tenant, and that the minority of the plaintiff and the fact that he had no 
 guardian, were sufficient evidence of a want of consent, is unobjection- 
 able. Cutler V. Currier, liv. 81. 
 
 20. So is an instruction, that, if the defendant neglects, for two 
 months, to make any answer to a written demand or to do anything 
 about the matter, such will be sufficient evidence of a demand and re- 
 fusal, though she did not expressly decline to account ; and that the de- 
 mand on her, without evidence of a demand on the intestate in his life- 
 time, would be sufficient. Cutler v. Currier, lit. 81. 
 
 See Abatement, 2, 3. 
 Pleading, 6, 7. 
 
JUDICIAL NOTICE. JUDGMENT. 
 
 JUDICIAL NOTICE. 
 
 293 
 
 1. The S.J. Court will take judicial notice of the towns composing the 
 different counties in this State, and the times when, and the places 
 where its sessions appointed by law are to be held ; and where a deposi- 
 tion taken within any county in the State, which, by its caption, is re- 
 turnable before this court at a time and place appointed by law within 
 such county, it will not presume that such deposition is, or may be, re- 
 turnable before the court in any other county and State, but the con- 
 trary. Kidder v. Blaisdell, xlv. 461. Martin v. Martin^ li. 366. 
 
 2. Ordinarily courts do not notice resolves unless produced in evi- 
 dence. Simmons v. Jacobs, lit. 147. 
 
 See MOETGAGE, 101. 
 
 State Teeasukbe, 3. 
 
 JUDGMENT. 
 
 I. EENDTTION, AND ENTRY OF JUDGMENT. 
 II. AEEEST OF. 
 
 III. EFFECT OF. 
 
 IV. ACTIONS ON, AND SATISFACTION OF. 
 
 T. JUDGMENTS OF COURTS OF OTHER STATES, AND FOREIGN 
 JUDGMENTS. 
 
 I. RENDITION, AND ENTRY OP JUDGMENT. 
 
 1. The records of the court are not coriipleted in respect to any action 
 until final judgment is rendered. Stetson v. Corinna, xliy. 29. 
 
 2. Where an indictment for larcency states only the collective value 
 of the articles alleged to be stolen, if the accused is convicted of steal- 
 ing only a part of them, and the jury find, and, in their verdict, return 
 the value of the part so stolen, judgment may be legally rendered upon 
 the verdict. State v. Buck, xlvi. 531. 
 
 8. In this State there is no existing statute authorizing a judgment in 
 an action of debt upon bonds, &c., differing from the common-law rule, 
 unless poor debtors' bonds, in certain cases, are exceptions. Lewis v. 
 Warren, xlix. 322. 
 
 4. A judgment upon an order of the law court, certified to the clerk 
 in vacation, must be entered up as of the last day of the preceding term. 
 BilUngs v. Berry, l. 31. 
 
 5. .No court can rightfully renderjudgment in a cause, until it has ac- 
 quired complete jurisdiction over the parties, the subject-matter of the 
 suit, and the process. Such jurisdiction is not acquired until the de- 
 fendant is in some way notified of the pendency of the suit. Penobscot 
 JR. JR. Co. V. Weeks, lii. 456. 
 
294 JUDGMENT. 
 
 6. A certificate from the law court, making a final disposition of a 
 cause on its merits, is the final judgment of the court. Cooly v. Pat- 
 terson, Lii. 472. 
 
 See CoEPOEATioN, 13, 14. 
 
 II. AEEBST OF. 
 
 7. A motion to dismiss for want of jurisdiction, after verdict, may be 
 treated as a motion in arrest of judgment. Stetson v. Gorinna, xliv. 
 29. 
 
 8. No motion in arrest of judgment, in any civil action, can be sus- 
 tained by virtue of R. S. of 1857, c. 82, § 26. Stetson v. Gorinna, 
 XLIV. 29. Fernald v. Garvin, lv. 414. 
 
 9. In a criminal prosecution a motion in arrest of judgment will be 
 sustained only for defects apparent on the record of the particukr case. 
 State V. Garner, xlix. 588. 
 
 10. Objections to the qualification of grand jurors can be taken only 
 in abatement. By pleading generally, they are waived ; they furnish no 
 ground for arrest of judgment. State v. Garver, xlix. 538. 
 
 III. EFFECT OF. 
 
 (a) As TO PAKTIES. 
 
 (b) Gekbeali-t. 
 
 (a) As to parties. 
 
 11. If a judgment against several defendants is reversed for error as 
 to a part of them, it is reversed wholly, for it cannot be affirmed as to 
 the others. Benner v. Welt, xlv. 483. 
 
 12. A judgment is not necessarily vacated or annulled by the grant- 
 ing of a review of it, and the rendering of judgment in the action of re- 
 view. Dyer v. Wilbur, xlviii. 287. 
 
 13. A judgment on nonsuit in a former suit between the same par- 
 ties, for the same cause of action, is no bar to a second suit, when it ap- 
 pears that the former case was not tried on its merits. Jay v. Carthage, 
 XLVIII. 353. 
 
 14. The defendant pleaded in bar a judgment, between the parties, in 
 a former suit — which judgment was rendered on the award of referees 
 appointed by a rule of court. Held, that the judgment was not, necessa- 
 rily, a bar to this action, although, under one of the counts in the writ, 
 in the former action, the claim now in suit might have been proved ; and 
 the question whether the claim was embraced in the award, was prop- 
 erly submitted to the jury. Cunningham v. Foster, xlix. 68. 
 
 15. A judgment against a corporation is binding upon the stockhold- 
 ers till reversed, and is conclusive upon them in a subsequent action 
 against them, by the same plaintiff. Milliken v. Whitehouse, xlix. 527. 
 
 16. An action against two or more for a joint trespass cannot be sus- 
 tained by evidence of acts committed by one of them ; and a judgment 
 against both is not a bar to another action brought against one of them 
 for a several trespass. Davis v. Gaswell, l. 294. 
 
JUDGMENT. 
 
 295 
 
 17. If upon inspectiqn of the record, a judgment, by whatever court 
 rendered, and by whatever means brought in question, appears to have 
 been rendered without notice to the defendant, it is absohitely void. 
 Penobscot B. B. Co. v. Weeks, lii. 456. Sidensparker v. Sidensparker, 
 Lu. 481. 
 
 18. When a fact has been once judicially tried and determined by a 
 court of competent jurisdiction, the judgment thereon, so long as it re- 
 mains unreversed, is conclusive upon the parties, and their privies in es- 
 tate. Walker v. Chase, liii. 258. Sturtevant v. Bandall, mi. 149. Page 
 V. JEsty, Liv. 319. Sibley v. Bider, liv. 463. Lynch v. Swanton, Lin. 
 100. Thurston v. Spratt, lii. 202. 
 
 19. And if the fact that a question has been once judicially deter- 
 mined can be shown by the record, the former judgment may be pleaded 
 by way of estoppel, or given in evidence under the general issue. Walk- 
 er V. Chase, liil 258. Sturtevant v. Bandall, Lni. 149. Cunningham 
 V. Foster, xlix. 68. 
 
 20. But if the record need not and do not exhibit the grounds upon 
 which the judgment proceeded, it may be shown by evidence aliunde 
 that the fact which might have been admissible under the pleadings was 
 presented and considered in the adjudication. Sturtevant v. Bandall, 
 LIII. 149. Walker v. Chase, lui. 258. Cunningham v. Foster, xlix. 68. 
 
 (b) Generally. 
 
 21. A judgment will be vacated by an appeal therefrom ; and an ac- 
 tion of debt cannot be maintained upon it. Atkins v. Wyman, xlv. 399. 
 
 22. The judgment of the appellate court will be conclusive until re- 
 versed, although the appeal in the case was improperly taken and prose- 
 cuted. Atkins V. Wyman, xlv. 399. 
 
 23. An officer, representing creditors subsequently attaching, may im- 
 peach aJLidgraent against the debtor for fraud ; but, in an action against 
 himself for not keeping property attached on the writ, he cannot impeach 
 the judgment to lessen his own liability, or for the benefit of the debtor. 
 Willard v. Whitney, xlix. 235. 
 
 24. A judgment of court becomes final when, by the then existing 
 laws, the time for a review and for reversal for error has expired ; it 
 then becomes a vested right, by force of the constitution and the exist- 
 ing laws. Atkinson v. Dunlap, l. 111. 
 
 25. A person who is not a party or privy thereto may collaterally im- 
 peach a judgment contravening his rights, whenever it has been obtained 
 by fraud or collusion, or when the court rendering it had no jurisdiction, 
 or when unlawfully entered up. Sidensparker v. Sidensparker, lii. 481. 
 Buffum V. Bamsdell, lv. 252. 
 
 26. Where a judgment in a personal action, whether rendered on de- 
 fault or after contestation, is not liiible to either of these objections, it is 
 conclusive as to the relation of debtor and creditor between the parties 
 and the amount of the indebtedness; and it cannot be collaterally im- 
 peached by third parties in a subsequent suit, when such relation and in- 
 debtedness are called in question. Sidensparker v. Sidensparker, Ln. 
 481. 
 
296 JUDGMENT. 
 
 27. Whenever a cause has passed into a judgment, it is merged' so 
 long as the judgment remains in full force and not reversed. Sweet v, 
 JBracMey, liii. 346. Rankin v. Goddard, lv. 389. 
 
 28. A judgment against two or more defendants jointly is an entirety, 
 and must stand or fall as a whole. Buffum v. Mamsdell, lv. 252. 
 
 29. Such a judgment is erroneous and will not sustain a levy made up- 
 on the real estate of the other, if one of the defendants was not an inhab- 
 itant of this State, and no personnl service of the writ was made upon 
 him. Buffum v. Bamsdell, lv. 252. 
 
 See Action, 33. 
 
 IV. ACTIONS ON, AND SATISFACTION OF. 
 
 30. An .execution was satisfied, in part, by a levy upon a parcel of 
 land, and the residue, by a sale of an equity of redemption of another 
 parcel, the creditor becoming the purchaser. The debtor, afterwards, by 
 purchase, obtained a reconveyance of the equity from the creditor, who 
 discharged the debtor, expressly reserving his rights under the levy. 
 Subsequently, the creditor discovered that at the time of the levy, the 
 land was subject to a mortgage, still existing ; whereupon he claimed to 
 rescind the bargain. In an action of debt brought some years after- 
 wards, to recover the amount for which the execution was satisfied, by 
 the levy, Held, that the reconveyance of the equity, and the discharge 
 should be regarded as a full and final settlement of the whole matter. 
 Keene v. Lord, xlv. 613. 
 
 31. If, in a suit upon a poor debtor's bond, the damages are reduced to 
 the sura of five dollars, and the judgment rendered thereon for that sum, 
 with costs, is paid, the original judgment is thereby paid and discharged 
 to the amount of five dollars and no more. Bartlett v. Sawyer, xlvi. 
 317. 
 
 32. An action upon a judgment cannot be defeated by any defense 
 which might have been made in the suit in which the judgment was re- 
 covered. JSToble V. Merrill, xlviii. 140. Merrill v. Noble, xlviii. 140. 
 Rankin v. Goddard, lv. 389. 
 
 83. An assignment of a portion of a judgment by one of the creditors 
 to a third person, for a valuable consideration, is not satisfaction of any 
 part of the judgment. Noble v. Merrill, XLVin. 140. 
 
 34. A judgment, after the lapse of twenty years from its recovery, is 
 presumed to be paid, but this presumption may be rebutted by proof. 
 Noble V. Merrill, xlviil 140. Knight v. Macomber, lv. 132 
 
 35. Under the statute of 1821, one summoned as the trustee of an- 
 other was protected against any claim upon him by the principal defend- 
 ant during the pending of the trustee suit ; and the judgment in that suit 
 was a bar to an action upon such claim by the principal defendant, ex- 
 cept for the excess thereof over the amount of the judgment. Noble v. 
 Merrill, xlviii. 140. 
 
 36. But the judgment against the trustee was no discharge of the 
 judgment against the debtor, though by means of the trustee suit, pay- 
 ment by the debtor to the trustee was prevented, and, by the subsequent 
 insolvency of the trustee the debt was lost. Merrill v. Noble, XLVin. 140. 
 
JUDGMENT. 
 
 297 
 
 37. Where a judgment is recovered upon a negotiable promissory note 
 after indorsement, in the name and with the consent of a nominal party 
 without interest, the judgment creditor is merely the trustee of the equit- 
 able owner, and cannot control the judgment to the prejudice of his 
 cestui que trust or to the oppression or injury of the debtor. Pratt T. 
 Dow, Lvi. 81. 
 
 38. And payment of such a judgment to the satisfaction of the equit- 
 able owners thereof is a good defense to an action thereon, although, 
 some' of the judgment debtors are the cestui que trust for whose benefit 
 the original suit was instituted. Pratt v. Dow, lvi. 81. 
 
 See Equity, 193. 
 
 V. JTJDGMENTS OF COTJETS OF OTHBE STATES, AND FOREIGN 
 JUDGMENTS. 
 
 39. A judgment, between parties, both of whom are, and have been, 
 resident in this State, of a court having jurisdiction of the subject-matter 
 of another of the United States, when personal service was made on the 
 defendant, who appeared in court, answered to the action and made de- 
 fense, is valid and entitled to the same faith and credit that judgments 
 rendered within our own jurisdiction are entitled to. North Dank v. 
 Drown, l. 214. Sweet v. Drackley, liii. 346. 
 
 40. After the plaintiffs had commenced this action upon the notes de- 
 clared on, they sued the same in another State, causing personal service 
 upon the defendant, who appeared and defended until judgment was re- 
 covered for the amount of the notes and costs, Held, that such judgment 
 is a bar to their recovery in this suit. North Dank v. Drown, l. 214. 
 
 41. The indorser of a witnessed promissory note, given in Maine, sued 
 the present defendant as maker in Massachusetts, whither the latter had 
 removed ; and the defendant, after pleading payment and the statute of 
 limitations, obtained a general verdict in his favor ; and subsequently the 
 present plaintiff, as payee, brought this action against the defendant, who 
 had ■ previously moved back to Maine. Dkld, (1) That the action could 
 not be maintained ; and (2) That evidence that the statute of limita- 
 tions was the only issue tried in the former action is inadmissible. Sweet 
 T. Drackley, liii. 346. 
 
 42. A foreign judgment is not conclusive upon the parties in an action 
 here involving the same subject-matter. Rankin v. Goddard, liv. 28. 
 
 43. But the jurisdiction of the foreign court, its power over the 
 parties and the matters in controversy, may be inquired into ; and it may 
 be impeached for fraud. Rankin v. Goddard, liv. 28. 
 
 44. A foreign judgment having been rendered by a court having juris- 
 diction of the parties and the subject-matter, and not having been im- 
 peached, is conclusive upon the parties here. Rankin v. Goddard, lv. 
 389. 
 
 45. The defendant sold to the plaintiffs in the Province of New 
 Brunswick, 800 tons of timber to be delivered by a third person, and re- 
 ceived his pay therefor. Subsequently, the plaintiffs sued the defend- 
 ant in New Brunswick, for an alleged non-delivery of the timber, and, 
 upon trial, recovered judgment for an amount equal to the oiiginal price 
 paid for the timber. In the trial of an action subsequently commenced 
 
298 JUKISDICTION. JUEORS. 
 
 here by the defendant against the plaintiffs, for the price of the timber, 
 the defendant offered to prove that 620 tons of the timber sold were de- 
 livered to the plaintiffs before the commencement of their foreign salt 
 against him, and 38 tons after the commencement, but before the trial of 
 the same action, Held^ (1) That these facts should have been set up, the 
 former in defense, and the latter in mitigation of damages in the foreign 
 suit. Rankin v. Goddard, lv. 389. 
 
 See CoEPOEATiosr, 13, 14, 15, 16. 
 
 JURISDICTION. 
 
 It is not necessary to show jurisdiction in the supreme judicial court, 
 for it will be presumed until the contrary appears. Stetson v. Corinna, 
 xLiv. 29. 
 
 See Abatement, 1, 10, 15. 
 Aebitbation, 7. 
 Contempt, 4, 5. 
 Judgment, 42, 48, 44, 45. 
 Justice op the Peace, &c., 5. 
 Teusteb peooess, 53, 54. 
 
 JURORS. , 
 
 1. If at any time during a term of the court there is no supernumerary 
 juror present, and a vacancy occurs on either panel, it may be filled by 
 causing a talisman to be returned, instead of transferring one from the 
 other jury. Wallace v. Columbia, xlviii. 436. 
 
 2. But a juror can be thus returned from the bystanders only for some 
 particular case then to be tried, for which alone he should be sworn. 
 
 Wallace v. Columbia, xlviii. 436. 
 
 3. A coroner may be a traverse juror. State v. Wright, Lin. 328. 
 
 4. When, after examination, no cause of chaljenge appearing, a juror 
 is peremptorily challenged and discharged, the prisoner has no legal 
 right to recall him and have him sworn. State v. Wright, Lm. 328. 
 
 5. The statute does not require the name of a talisman to be in a jury- 
 box. State v. Wright, Lin. 328. 
 
 See Abatement, 13. 
 
JUSTICE OF THE PEACE, AND TKIAL JUSTICE. 299 
 
 JUSTICE OF THE PEACE, AND TRIAL JUSTICE. 
 
 1. Although the statutes, which confer upon justices of the peace the 
 power to fine and punish persons standing convict of certain crimes and 
 misdemenners, do not, in express tei-ms, authorize them to include the 
 costs of the prosecution, as a part of the sentence, still their authority to 
 do so may be clearly implied from other provisions of the criminal code. 
 Downing v. Herrich, xlvii. 462. 
 
 2. The omission in the Public Laws of 1858, c. 33, § 26, to require 
 that costs of prosecution should constitute a part of the sentence, when 
 it was made obligatory to do so in other sections of the same chapter, 
 shows that therein it was designed to be left to the discretion of the 
 magistrate, to include them or not in his sentence. Downing v. Ser- 
 rick, XLVII. 462. 
 
 3. As no action will lie against a justice of the peace for an error of 
 judgment, while acting honestly, and within the scope of his official ju- 
 risdiction, he caniiot be held .liable for issuing a mittimus, by force of 
 which the plaintiff was imprisoned, which was to make effectual his judg- 
 ment so rendered. Downing v. Merrick, xlvii. 462. 
 
 4. Magistrates have no authority to sentence a boy to the State Re- 
 form School, for breach of the by-lavrs of a town, for a term exceeding 
 one year. Dewiston v. Fairfield, xlvii. 481. 
 
 5. The jurisdiction of justices of the peace depends upon provisions of 
 the statute, and cannot be enlarged by presumption or implication. 
 State V. Hall, xlix. 412. 
 
 6. Under the R. S. of 1841, a justice of the peace having on the return 
 day defaulted an action brought before him, had no authority, on the 
 next day, to take off the default. State v. Hall, xlix. 412. 
 
 7. A writ made returnable before a trial justice, at his " dwelling- 
 house, to wit at his " office," must be entered before him at such dwell- 
 ing-house. Stanton v. Hatch, lii. 244. 
 
 8. If entered at a "place separate, and at a short distance from said 
 dwelling-house," "which place said justice uses as his office for the trial 
 of actions brought before him," the justice has no jurisdiction ; and upon 
 being appealed to this court, the action will on motion be dismissed, if 
 the record show the facts. Stanton v. Hatch, lii. 244. 
 
 9. By c. 64, of the Public Laws of 1860, a trial justice has no author- 
 ity to strike off, on a subsequent day, a nonsuit entered by him on the 
 day to which the action returned before him had been duly continued. 
 Pratt v. Boberts, liii. 399. 
 
 10. Sections 9 and 10, authorizing a trial justice to "strike off a non- 
 suit or default and revive an action," refer to a "nonsuit or default" en- 
 tered at "the time set in the writ for the trial" and not to a disposition 
 of the cause in either mode at some subsequent day to which it had 
 been continued. Pratt v. Roberts, liii. 399. 
 
 11. Section 7, c. 132 of R. S. of 1857, does not require warrants issued 
 
300 LAND AGENT, AND LANDS RESERVED FOR PUBLIC USES. 
 
 by judges of police courts to be made returnable before any justice of the 
 peace within the county. State v. Stevens, liii. 548. 
 
 See Action, 36. 
 Bail. 
 
 Costs, 17, 23, 45, 46, 54. 
 Estoppel, 33. 
 Town, 20. 
 
 KNOX COUNTY. 
 
 See Register op Deeds. 
 
 LACHES. 
 See Assumpsit, 16. Set-Ofp, 4. 
 
 LAND AGENT, AND LANDS RESERVED FOR PUBLIC 
 
 USES. 
 
 1. In an action to recover possession of a lot of land, the certificate 
 of the land agent, permitting the defendant to enter upon the lot, as a 
 settler, with proof that he has perforiped all the duties of a settler, but 
 that the agent has conveyed the lot to demandant's grantor, affords him 
 no legal ground of defense. Stevens v. Bragdon, xlv. 31. 
 
 2. Chapter 196 of the Public Laws of 1850, authorizing the land agent 
 to sell timber and grass growing on lots reserved for public uses, in un- 
 incorporated townships, should be construed to include, in its provisions, 
 a lot which was reserved "for the benefit of public education in general." 
 'Walker v. Lincoln, xlv. 67. 
 
 3. A permit from the land agent to cut timber on the State lands is 
 valid, although it does not appear whether or not the holder gave the 
 statute bond, that being a matter subsequent to, and independent of, the 
 permit. Mason v. Sprague, xlvii. 18. 
 
 4. But if the permit has been void, and the holder a trespasser, his 
 creditor attaching lumber cut under color of it, would have no better title 
 than his assignee or vendee. Mason v. Sprague, xlvii. 18. 
 
 5. A permit to cut timber generally, authorizes the bolder to cut spruce 
 timber, although the price of such timber is not stipulated in the instru- 
 ment, but is stated on another page in the land agent's handwriting. 
 Mason v. Sprague, xlvii. 18. 
 
LAND AGENT, AND LANDS RESERVED FOR PUBLIC USES. 301 
 
 6. Such a permit may be assigned as security for supplies already ad 
 vanced, or to be furnished at a subsequent time. Mason v. Sprague, 
 XL VII. 18. 
 
 7. Where the holder assigned the permit and the logs he had cut under 
 its authority, and his assignee assigned the same to a third person, who took 
 and retained for two months undisturbed possession of the logs out be- 
 fore the first assignment, such possession was sufficient to perfect the title 
 of the second assignee, although there had been no formal delivery. Ma 
 son V. Sprague, xlvii. 18. 
 
 8. Where a resolve of the legislature provided for a grant of land to a 
 person who had 'erected a saw-mill, the State, after the passage of the re- 
 solve, and before the conveyance by the land agent, did not hold the 
 land as trustee for its intended beneficiary. It was a donation, and not 
 a case of a vender who had received the purchase-^ioney under an agree- 
 ment to sell and convey. Cary v. Whitney, xlviii. 516. 
 
 9. Where a resolve authorized the land agent to convey certain lands 
 to A., or his assigns, and accordingly he gave a deed thereof to B., as the 
 assignee of A., a third party showing no connection with the title from 
 the land agent cannot object to the title of B., because the fact of assign- 
 ment, or the legal right of B. to take the deed as assignee, has not been 
 proved. Cary v. Whitney, xlviii. 516. 
 
 10. The recital in the deed of the land agent, that B. is the assignee 
 of A., is prima facie sufficient evidence of the fact. Cary v. Whitney, 
 xlviii. 516. 
 
 11. And where a resolve authorized the land agent to convey a cer- 
 tain lot to A. or his assigns, the determination of the land agent that a 
 certain person is the assignee of A., and entitled to the conveyance as such, 
 is binding and conclusive upon other parties claiming under a prior deed 
 of the same land from A. himself Cary v. Whitney, XLVin. 516. 
 
 12. One who bids off, at a land sale of State lands, a township of land, 
 but takes no deed, acquires no right to the land, or to cut any timber 
 thereon. State v. Patten, xlix. 383. 
 
 13. All timber cut thereon remains the property of the State ; and the 
 title of the State to a particular lot is not relinquished by the omission 
 of the land agent to seize it, although he seizes a lot cut subsequently. 
 State V. Patten, xlix. 383. 
 
 14. Where the land agent, being authorized to sell the right to cut 
 timber and grass on lots in a certain township, to any part-owner who 
 should elect to purchase, otherwise to any other person, sold such right 
 to B., not proved to have been a part-owner, but with a parol under- 
 standing that any proprietor might participate if he should so elect, this 
 does not create a trust, either express or implied, for the benefit of the 
 owners of the township, who have not paid or tendered to B. any part of 
 the purchase-money ; and a bill in equity brought by C, a part-owner, 
 for a share in the purchase, he offering to pay his proportion, will be de- 
 nied. Coe V. Bradley, xlix. 388. 
 
 15. The provisions of the statute of 1850, c. 196, were gratuitous, and 
 neither B. nor C. has any claim on the State for damages, if conveyance 
 of the right in question is refused by the land agent ; nor can C. have 
 any greater claim against the grantee of the State, than against the 
 State. Coe y. Bradley, xlix. 388. 
 
302 LANDLOUD AND TENANT. 
 
 16. The plaintiffs represented to the defendant that they had a "per- 
 mit " from the State agent to cut the birch timber on a certain township 
 by paying " stumpage," and the defendant gave them his note for a spec- 
 ified sum "for their right." The land agent seized the timber when cut, 
 and the defendant was obliged to settle therefor as a trespasser. In an 
 action on the note, Held, that as the State agent had no authority to 
 give the plaintiffs a license to cut the timber, there was no legal consid- 
 eration for the defendant's promise. Long v. Hopkins, l. 318. 
 
 LANDLORD AND TENANT. 
 
 I. TENANTS AT SUFFEEAJSTCB, AND AT WILL. 
 II. EIGHTS AND EBMEDIES. 
 
 I. TENANTS AT SUFFERANCE, AND AT WILL. 
 
 1. Such a tenancy at will as R. S. c. 94, § 2 contemplates, may exist 
 where there is no such relation as would authorize a suit for rent, or con- 
 fer the respective rights of landlord and tenant. Dunning v. Finson, 
 XLVi. 546. 
 
 2. A. bargained for a house, but had it conveyed to B. as security for a 
 loan, taking a bond from B. to convey to him on payment of the loan. 
 The bond expired. C. rented the house of A., and afterwards took a 
 quitclaim of his right, at the same time agreeing orally with B. for a deed 
 from him at a price named. Held, that he was tenant at will under B., 
 although he had never paid rent to A. Dunning v. Finson, xlvi. 546. 
 
 3. The defendant, under a verbal agreement to purchase certain real 
 estate of the plaintiff, went into possession thereof. He failed to pay at 
 the time stipulated, and afterwards voluntarily abandoned the premises. 
 Held, that though there was no agreement to pay rent, the defendant 
 was tenant at will to the plaintiff. Patterson v. Stoddard, xLvn. 355. 
 
 4. One who cuts the hay of another and puts it into the latter's bam, 
 under a verbal agreement by which the hay is to be divided, and one- 
 half assigned to him for his services, has the rights of a tenant at will. 
 White V. Elwell, xltui. 360. White v. Hutchinson, xLvni. 360. 
 
 5. A verbal lease of real estate at an annual rent, creates no estate 
 greater than a tenancy at will by R. S. 1857, c. 73, § 10. Withers v. Lar- 
 rabee, xlviii. 570. Robinson v. Beerinq, lvi. 357. Esfn v. Baker, l, 
 325. 
 
 6. A tenancy at will is, by alienation of the estate by the landlord, 
 changed into a tenancy at sufferance ; and, although the tenant had oc- 
 cupied the premises for a series of years, by consent of successive own- 
 ers, the last alienation would effect the same change. Esty v. Baker, l. 
 325. Reed v. Reed, xltih. 388. Robinson v. Deering, Lyi. 357. 
 
LANDLOKD AND TENANT. 
 
 303 
 
 7. A tenant at will becomes a tenant at suiferance by the death of the 
 lessor. Heed v. Heed, xlviii. 388. 
 
 8. A tenancy at will may be inferred from the payment and accept- 
 ance of rent. Cunningham v. JSolton, lv. 33. 
 
 9. The estate of a tenancy at will is not assignable. Cunningham v. 
 Solton, IT. 33. 
 
 11. EIGHTS AND EBMEDIBS. 
 
 (a) AGAINSt EACH OTHER. 
 
 (b) NOIICE TO QUIT, AND DETEKMINATION OF TBITANOIES. 
 
 (o) Action fob use and occupation. 
 
 (a) Against each other. 
 
 10. The rights of one who cuts another's hay and puts it into the barn 
 of the latter at the halves, are those of a tenant at will ; and they will 
 continue until the tenancy is terminated, or the hay removed, if done 
 within a reasonable time. White v. Elwdl, XLvni. 360. 
 
 11. After the hay is divided, the tenant has the right to enter within 
 a reasonable time and remove it, and the owner could not revoke the 
 license so as to prevent it. White v. Mlwell, xlviii. 360. 
 
 12. If, in such case, the owner of the barn forbids the tenant entering 
 to take away the hay, the latter may enter forcibly, at a reasonable time, 
 and in a reasonable manner, doing no more injury than reasonably neces- 
 sary to obtain and carry away his hay. White v. Elicell, xlviii. 360. 
 
 13. The owner of the fee may enter at any time and put an end to the 
 holding of a tenant at sufferance, or he may maintain ejectment without 
 notice. Reed v. Reed, xlviii. 388. 
 
 14. Where a tenancy at will is terminated by notice to the tenant, 
 he is liable for rent until the expiration of the time fixed for the termi- 
 nation of the tenancy, whether he occupies or not. Withers v. Larrahee. 
 XLvm. 570. 
 
 15. Where a tenant at will, before the expiration of his tenancy, quits 
 the premises and offers to surrender the key to the landlord, and upon 
 his refusal to receive it,- throws it down, and after the tenant has left, the 
 landlord takes it up and returns it, but the premises remain unoccupied 
 during the remainder of the term, the landlord thereby waives no rights, 
 and the tenancy is not determined. Withers v. Larrahee, xlviii. 570. 
 
 16. A tenant at sufferance cannot maintain trespass quare clausum for 
 a peaceable entry. Esty v. Baker, l. 325. 
 
 17. In assumpsit for rent accruing after the termination of a lease for 
 a term of years, the tenant will not be permitted to deny the title of his 
 landlord so long as he holds over, without surrendering possession of the 
 whole premises for which rent is claimed. He cannot by a surrender of 
 a part of the premises, acquire the right to dispute the landlord's title to 
 the remainder. Longfellow v. Longfellow, liv. 240. 
 
 18. A judgment upon a writ of entry negatives the existence of the 
 relation of landlord and tenant between the parties. Goddard y. Hall, 
 IV. 579? 
 
304 LANDLORD AND TENANT. 
 
 19. The landlord may, on rent day, enter upon the premises held by a 
 tenant at will, and demand payment of the rent; and, if not paid, he 
 may hold them as forfeited for non-payment of the rent. Cunningham 
 V. Ilolton, Lv. 33. 
 
 20. The defendant leased by parol his store, for three years, from 
 April 1, 1865, rent payable quarterly. In September following, the 
 lessee assigned his interest to the plaintiff, who, in the succeeding No- 
 vember, assigned to F., who, in February following, reassigned to the 
 plaintiff, who thereupon reentered and continued in possession until the 
 10th of April following, when the defendant broke in and took posses- 
 sion. On the 18th of the last-named month, the defendant sued the 
 plaintiff in assumpsit for rent from October next preceding, and up to 
 the time of the breaking, which the plaintiff soon after paid. In tres- 
 pass quare dausum for the breaking and holding the plaintiff out. Held, 
 that instead of ordering a nonsuit, the presiding judge should have sub- 
 
 ■ mitted the question of tenancy to the jury. Cunningham v. HoUon, 
 LV. 33. 
 
 21. Rights of tenants at will to crops. Brown v. Thurston, lvi. 126. 
 
 22. The writ of replevin was never intended as a means for the sum- 
 mary removal from a dwelling-house of a tenant at will, who has a pos- 
 session thereof, which he has a right to retain until removed by due 
 process of law for such cases made and provided. Smith v. Grant, lvi. 
 255. 
 
 23. Thus, where the owner of a messuage notified his tenant at will 
 to quit, and, subsequently, on the trial of a complaint for forcible entry 
 and detainer, judgment was rendered for the tenant; and, two days 
 thereafterw.irds, the owner executed a bill of sale of the dwelling-house, 
 together with the right of occupying the same, including the underpin- 
 ning where it stood, or of removing it before a day named ; and the 
 tenant, on the same day, refused to quit on written notice to do so, and 
 of the purchase by the vendee; and thereupon the vendee replevied the 
 house, and the officer, in serving the writ of replevin, by direction and 
 with the aid of the vendee, ejected the tenant and his family, removed 
 his furniture, and put the vendee in possession ; and thereupon the ten- 
 aiit sued the officer and the vendee in trespass quare dausum. Seld, 
 That the replevin writ afforded no protection to the officer under the cir- 
 cumstances. Smith V. Grant, lvi. 255. 
 
 24. A lessor who, without the knowledge or consent of his lessee, has 
 voluntarily terminated between the rent days the tenancy created by a 
 verbal lease, cannot, in the absence of any agreement of apportionraentj 
 maintain an action for rent which accrued between the last rent day and 
 the time of the termination of the tenancy. JRohinson v. Deering, lvi. 
 357. 
 
 See Deed, 109. 
 
 Teespass, 11, 16. 
 
 (b) JVotice to quit, and determination of tenancies. 
 
 25. A tenancy at will is determined by the death of the lessor, and the 
 lessee thereupon becomes tenant at sufferance ; and is not entitled to no- 
 tice to quit. Beed v. Heed, xlviii. 388. JEstt/ v. Baker, l. 325, Bob- 
 inson v. Deering, lvi. 357. • 
 
LANDLORD AND TENANT. 
 
 305 
 
 26. Under the R. S. of 1841, the notice required by law to terminate 
 a tenancy at will, when rent was payable yearly, was three months' no- 
 tice in writing, to quit at the expiration of that time. Gordon v. Oil- 
 man, xLviii. 473. Withers v. Larrabee, xlviii. 570. 
 
 27. The righ.ts of a tenant at will before such notice, and for the three 
 months thereafter, under those statutes were the same as those acquired 
 under a written lease for a like period. Gordon v. Oilman, xltiii. 473. 
 
 28. Such rights are determined by the statutes in force at the time 
 when the question arises. Gordon v. Oilman, xlviii. 473. 
 
 29. The provisions of the R. S. of 1841, requiring notice to terminate 
 a tenancy at will, are not contained in R. S. of 1857, so that, under the 
 latter, tenancies at will are determinable as at common law, at the will 
 of either party and without notice. Gordon t. Oilman, xlviii. 473. 
 Withers v. Larrabee, xLvni. 570. Msty v. Baker, L. 325. Yide Public 
 Laws of 1863, c. 199. 
 
 30. The provisions of R. S., c. 94, §§ 1 and 2, relate only to the process of 
 forcible entry and detainer, and the notices required for its maintenance. 
 Gordon v. Gilman, xlviii. 473. Withers v. Larrabee, xlviil 570. 
 
 31. Parties to a tenancy at will may abandon the original verbal agree- 
 ment without I'esorting to the statute method of terminating the tenancy. 
 Forbes v. Smiley, Tsri. 174. 
 
 32. When parties to a tenancy at will have abandoned the original 
 verbal agreement, under which the tenant took possession, and they fail 
 to agree upon new terms, the tenant will be liable to pay whatever the 
 rent is reasonably worth for the time he holds over. Forbes v. Smiley, 
 LVL 174. 
 
 33. A sale of the premises held under a verbal lease determines the 
 tenancy. Robinson v. Leering, lvi. 357. Esty v. Laker, l. 325. Reed 
 V. Re&d, xlviii. 388. 
 
 (c) Action for use and occupation. 
 
 34. The defendant went into possession of real estate under a verbal 
 agreement to purchase it. Failing to pay at a stipulated time, he volun- 
 tarily abandoned it. Held, That though there was no agreement to pay 
 rent, the occupation having been beneficial to him, the law will imply 
 a promise on his part, when he took possession, to pay for the use of the 
 premises, if he failed to fulfill his part of the contract ; and assumpsit 
 for use and occupation will lie. Patterson v. Stoddard, xlvii. 355. 
 
 35. To prove that the relation of landlord and tenant subsisted be- 
 tween the parties to an action of assumpsit for use and occupation, the 
 plaintiffs may introduce a lease between the same parties, executed at a 
 previous period, covering the same and other premises, and extending 
 down to the commencement of the time sued for in this action, although 
 such lease had expired and the rent under it had all been paid. Long- 
 fellow V. Longfellow, liv. 240. 
 
 36. To the admissibility of such lease it cannot be objected, for the 
 first time at the law argument, that there is no evidence that the parties 
 to the lease are identical with the parties to the action, and that the lease 
 was res inter alios ; such objection, when not made at the trial, comes 
 too late, whether the case comes up by exceptions or report. Longfellow 
 V. Longfellow, liv. 240. 
 
 20 
 
306 LAND WAEKANT. LARCENY. 
 
 37. What facts will make out a prima facie case. Longfellow v. 
 Longfellow, liv. 240. 
 
 38. Assumpsit for use and occupation can only be maintained by proof 
 of a promise, express or implied. It cannot be maintained against a dis- 
 seisor. Goddard v. Sail, lv. 579. 
 
 LAND WARRANT. 
 
 Land warrants are not to be regarded as real .estate by a court of pro- 
 bate. Moody V. Sutehiiison, xliv. 57. 
 
 LARCENY. 
 
 1. A count charging one with larceny, and another against him as re- 
 ceiver of stolen goods, may be joined in an indictment. State v. Stimp- 
 son, XLT. 608. 
 
 2. One, who knowingly receives, or aids in concealing goods stolen in 
 another State and brought into this State, is made liable therefor by 
 § 10, 0. 156, of R. S. State v. Stimpson, xlv. 608. 
 
 3. A verdict was sustained for larceny in this State, against one who 
 had goods in his possession which he had stolen in the Province of New 
 Brunswick and brought with him into this State. State v. Underwood, 
 XLIX. 181. 
 
 4. An indictment for compound larceny against A., as principal, will 
 not be held defective because it contains allegations against other per- 
 sons as accessories before the fact. State v. Carver, xlix. 588. 
 
 5. A complaint alleging the larceny to have been of " one sheep, of the 
 value of five dollars, the property of another person, who is unknown to 
 the complainant," &c., is sufficient ; and if the allegations be proved, the 
 defendant will be deemed guilty of larceny. State v. Folland, liii. 124. 
 
 6. In an indictment for larceny of gold and silver coin, railroad bonds, 
 legal tender notes, and compound interest notes, it is a sufiicient allega- 
 tion of ownership to describe them as " of the goods and chattels " of the 
 owner. State v. Bartlett, lv. 200. 
 
 7. In an indictment for larceny of a large number of different articles, 
 it is not necessary to use the word " and " to connect the descriptions of 
 the several articles. State v. Bartlett, lv. 200. 
 
 8. Upon an indictment charging the felonious breaking and entering 
 of a building, and a larceny therein, after a general verdict of guilty, 
 judgment will not be arrested, if the larceny of a single article is prop- 
 erly alleged ; although it may contain insuflScient allegations of the lar- 
 ceny of other articles. State v. JBartlett, lv. 200. 
 
LAW AND FACT. 
 
 307 
 
 9. If a person, without any present intention of stealing it, obtain pos- 
 session of the team of another by falsely and fraudulently pretending 
 that he wanted to drive it to a certain place and that he would return 
 within a specified time, when in fact he intended not to go to such 
 place, but to a more distant one, and to be absent a longer time ; and if, 
 while thus in possession, he, without the consent of the owner, convert 
 the team to his own use by selling it, with a felonious intent, he will be 
 guilty of larceny. State v. Coombs, lt. 477. 
 
 LAW AND PACT. 
 
 I. WHAT AEB QUESTIONS Or LAW. 
 II. WHAT AEE QUESTIONS OF PACT. 
 
 I. WHAT AEE QUESTIONS OF LAW. 
 1. Whether the intended time of payment of a note payable "six- 
 
 after date," is a question of law or fact, qumre. Nichols v. Frothingham, 
 XLV. 220. 
 
 2. The construction of a deed, or other written instrument, is matter 
 of law. Simpson v. Norton, xlt. 281. Nash v. Drisco, li. 417. 
 
 3. In an action for breach of promise of marriage, the destruction of 
 certain letters (written by the defendant to the plaintifl") which, if exist- 
 ing, would be admissible, is a question for the determination of the court ; 
 and from the evidence, the court is also to determine that their destruc- 
 tion was not the result of a dishonest purpose. Tobin v. Shaw, xlt. 
 331. 
 
 4. Upon an appeal from a decree of a judge of probate approving a 
 wUl, the great question, embracing all others, is whether the instrument 
 is the last will and testament of the person appearing on its face to be 
 the testator. But this question is not one for the jury. It involves mat- 
 ters of law, as well as of fact, and is to be determined by the court, in 
 the final decree, upon the law applicable to all the facts, whether settled 
 by the jury, or by the court. Withee v. Jtowe, xlt. 571. 
 
 5. What the boundaries of land conveyed by deed are, is a question 
 of law. Abbott v. Abbott, ll 575. 
 
 6. When there are two monuments which may answer the call in 
 a deed, and the true intendment can be ascertained by applying the 
 legal rules of construction to the conveyance itself, the question is one 
 of law. Bonney v. Morrill, lil 252. 
 
 7. The effect of a subsequent contract upon a preexisting one is a 
 question for the court to determine from their terms. Cocheco Sank v. 
 Berry, lil 293. 
 
 8. The question of probable cause, in an action for malicious prosecu- 
 tion, is a mixed proposition of law and fact. Whether the circumstances 
 alleged to show it probable, supposing them true, amount to probable 
 
308 LAW AND FACT. 
 
 cause, is a question of law. Humphries v. Parker, lii. 502. Cooper v. 
 Waldron, l. 80. 
 
 9. Whether or not supplies were furnisherl and received as pauper re- 
 lief! is a mixed question of law and fact. Veazie v. Chester, liii. 29. 
 
 10. When it is submitted to a jury, the presiding judge should, on re- 
 quest, instruct the jury what would or would not constitnte furnishing 
 and receiving supplies within the statute. Veazie v. Chester, liii. 29. 
 
 See Coupons, 3. 
 
 11. WHAT AEE QUESTIONS OP FACT. 
 
 11. The controlling description in a deed being, " the McKay farm, so 
 called," what was the McKay farm at the time the deed was given, is a 
 question properly submitted to the jury. Madden y. Tucker, xlvi. 367. 
 
 12. What constitutes "unfaithfulness" On the part of the commission- 
 ers appointed under a complaint for flowfige, so as to invalidate their re- 
 port, is a question of fact. Berry v. jBillings, xlvii. 328. 
 
 13. Whether the declarations of a former owner of chattels were 
 made to prevent his creditors from attaching the property, or in good 
 faith, is a question of fact. Beedy v. Macomber, xlvii. 451. 
 
 14. In an action for a personal injury, caused by a defect in a high- 
 way, the question, what constitutes ordinary care, is for the jury. Stuart 
 T. Machias Port, xlviii. 477. 
 
 15. Where a former judgment is pleaded in bar of an action between 
 the same parties, the question, whether the claim sued was embraced in 
 the former judgment, is one of fact. Cunningham v. Foster, xlix. 68. 
 
 16. Whether the paper produced in evidence in an action on a con- 
 tract referring to a paper of the same name or general description is the 
 one thus referred to, is for the jury. Witherell v. Maine Ins. Co., xlix. 
 200. 
 
 17. If the notice of a loss to the insurers is sufficient in form, it is for 
 the jury to determine whether it is sufficient in substance. Wither^ 
 V. Maine Ins. Go., xlix. 200. 
 
 18. It is a question of fact for the jury to determine when a presump- 
 tion of loss arises in marine insurance. So, also, in case of loss, the time 
 it occurred. Clifford v. Thomaston M. Ins. Co., l. 197. 
 
 19. On petitions for partition, all questions concerning the title of the 
 parties, and the nature and proportions of their interests, are for the jury. 
 Allen V. Sail, l. 253. 
 
 20. The defendant accepted an order for the payment of a specified 
 sum " when he sold certain wharf logs." Three years after its accept- 
 ance a suit was brought upon the order. Held, the question of unrea^ 
 sonable delay in making the sale was properly submitted to the jury. 
 Wilder v. Sprague, l. 354. 
 
 21. The question, whether an actual tender is dispensed with, is for 
 the jury, where one party for the fraud of another has rescinded a con- 
 tract, and is willing and ready to return what he has received, but is pre- 
 vented by the declarations of the other party, that he will not receive it. 
 Wheelden v. Lowell, l. 499. 
 
LAW AND FACT. 309 
 
 22. Where an applicant for insurance covenanted in his application 
 that it contained £^ "just, fall, and true exposition of all the facts and 
 circumstances, in regard to the condition, situation, value, and risk of the 
 property to be insured, so far as the same were known to the applicant, 
 and are material to the risk;" and the policy declares that the applica- 
 tion is made a part of the policy, and that the policy "is made and ac- 
 cepted upon the representations of the assured in his application." Hdd, 
 that the materiality of the statements made in the application whether 
 deemed to be representations, or warranties limited in their character, 
 and the knowledge of the applicant, were properly for the jury. Garce- 
 lon V. Hampden F. Ins. Co., l. 580. 
 
 23. A written contract embracing some latent ambiguity is to be con- 
 strued by the jury, in the light of such parol evidence as might tend to 
 the ascertainment of the intention of the parties. Warren v. Jones, li. 
 146. 
 
 24. Whether the injury sued for, and repairs made by a town, are 
 both upon the same way, is a question of fact for the jury. Gilpatrick 
 Y. Biddeford, li. 182. 
 
 25. Whether the acts of a street commissioner are within the general 
 authority conferred upon him is a question of fact. Gilpatrick v. Bidde- 
 ford, LI. 182. 
 
 26. The identity of a monument found upon the ground, with one re- 
 ferred to in the deed, is a question of fact. Abbott v. Abbott, li. 575. 
 Tebbetts v. Estes, lii, 566. 
 
 27. When the eastern boundary of land conveyed was a line " as sur- 
 veyed by I. J. and I. B.," if they had never made any survey, there was 
 a latent ambiguity. If a dividing Hne had been made by another per- 
 son, whether the parties referred to his survey, was a question of fact. 
 Abbott V. Abbott, ll 575. 
 
 28. If a mortgage was intended to delay or defraud subsequent credi- 
 tors, it is voidable as to them ; and the question of fraudulent intent is 
 one of fact. Hall \. Sands, ui.^bb. 
 
 29. Whether or not the open and exclusive possession of a tenant, con- 
 tinued for thirty years, was adverse, is a question of fact. Eaton v. 
 Jacobs, m. 445. 
 
 30. In malicious prosecution, the question of probable cause is a 
 mixed proposition of law and fact ; whether the circumstances alleged 
 to show it probable exist and are true is a matter for the jury. Hum- 
 phries V. Barker, lii. 502. Cooper v. Waldron, l. 80. 
 
 31. The question as to the location of a boundary to land is one of 
 fact. Tebbetts v. Estes, lii. 566. 
 
 82. Whether or not the open and exclusive possession of a tenant, 
 contmued for thirty years, was adverse, is a question of fact. Eaton v. 
 Jacobs, LII. 445. 
 
 33. What is a reasonable amount for storing a wagon, is a question of 
 fact. Eeen v. Jordan, liii. 144. 
 
 34. Where it is necessary to determine the date of a promissory note 
 in suit, and offered in evidence, and the name of the mouth is so inartifi- 
 eially written, that, upon inspection, the presiding judge cannot deter- 
 
310 LEASE. 
 
 mine whether it should be read June or January, extraneous evidence is 
 admissible to sliow the true date. And the question is a proper one for 
 the jury. Fenderson v. Owen, liv. 372. 
 
 See Aebiteation, 23. 
 Stjbett, &c., 14. 
 
 LEASE. 
 
 1. When, by the terms of the lease of a farm, occupied by the lessee, 
 it is stipulated that "all the hay and straw shall be used on said fiirm," 
 the hay raised thereon by the lessee is subject to this condition, and can- 
 not be attached or taken on execution by the latter's creditors. Coe v. 
 
 Wilsofi, XL VI. 314. 
 
 2. Buildings, erected by the lessee upon leased land, with the permis- 
 sion of the lessor, are personal property. Adams v. Goddard., xlviii. 212. 
 
 8. A lease, conditioned to become void if the lessee "fails to pay all 
 extra insurance," will not be held to be forfeited upon proof of his fail- 
 ure to pay extra insurance, unless it also appears that there was money 
 due for extra insurance. Adams v. Goddard, xlviii. 212. 
 
 4. A " permit," authorizing a lessee to erect a building upon the land 
 leased, and allowing him " to take away, or sell upon the ground, said 
 building so erected, at his own expense, at the determination of said 
 lease," limits the right to take away the building, but not the right to 
 sell it. Adams v. Goddard, xlviii. 212. 
 
 5. After such building becomes the property of a third person, the can- 
 celling of the lease by the parties thereto, or their assigns, cannot affect 
 his rights ; but he may take the building away at the end of the term for 
 which the lease was originally given. Adams v. Goddard, xlviii. 212. 
 
 6. If such owner, at the time his right to take away such building ac- 
 crues, uses all reasonable means to do so, but it is withheld from him by 
 the owner of the land on which it stands, under a claim to hold it abso- 
 lutely as his own, the latter is liable in an action of trover for a conver- 
 sion of the building. Adams v. Goddard, xlviii. 212. 
 
 7. For a lease of a store, there. is no implied warranty, that the build- 
 ing is safe, well built, or fit for any particular use. lAhbey v. Tolford, 
 xlviii. 316. 
 
 8. If there be no stipulation between the parties to a lease in respect 
 to repairs, the tenant takes the risk of the future condition of the prem- 
 ises, and is bound to keep them in repair. Lihhey v. Tolford, xlviii. 316. 
 
 9. If the landlord, after the lease is entered into, and being under no 
 legal obligation to make repairs, promises to make them, the promise is 
 without consideration, and will not support an action. Libbey v. Tolford, 
 xlviii. 316. 
 
 10. A lease of land for twenty years, with the right of perpetual re- 
 newal, may be transferred by deed, as well as by assignment on the back 
 of the lease ; and in either case the interest of the assigner passes. Esty 
 V. Baker, xlviii. 495. 
 
LEGISLATURE. 
 
 311 
 
 11. A verbal lease of real estate at annual rent creates no greater 
 estate than a tenancy at will by our R. S., 1857, c. 73, § 10. Withers v. 
 Xiarrabee, xlviii. 570. Robinson v. Beering, lvi. 357. 
 
 12. The rigbts of parties to a lease, made before tbe R. S. of 1857, 
 took effect, are not affected by those statutes. Withers v. Larrabee, 
 xxvni. 570. 
 
 13. Where the defendant leased a lot of land to the plaintiffs foi- a 
 specified annual ground rent, and therein covenanted to erect a building 
 thereon within a stated time, and to let to them the building at a speci- 
 fied rent ; and the lease further provided that, " if the said " defendant 
 "shall decline to erect said building" within the time mentioned, '• it is 
 agreed that the plaintiffs may go forward and erect the same," &c., Held, 
 That, in an action of covenant broken for not erecting the building, the 
 language, "if the said" defendant "shall decline to erect said building," 
 must be construed to mean, if the said d efendant shall violate his con- 
 tract, then the plaintiffs may proceed and perform it for him. Edwards 
 V. Gale, Ln. 360. 
 
 14. This permission may be relied upon only in tbe reduction of dam- 
 ages, and not for such purpose if the defendant has thrown any obstacles 
 in the way of a reasonable performance of the plaintiffs' stipulated rights. 
 Edwards v. Gale, lii. 360. 
 
 15. A lease for a term of years, conditioned for the payment of an an- 
 nual rent, with a perpetual right of renewal, does not devest the lessor of 
 his fee in the premises. Page v. Esty, liv. 319. 
 
 16. A conveyance of the leased premises by the lessor makes tbe 
 grantee the landlord of the lessee, with the right to possession upon a for- 
 feiture for breach of the conditions of the lease. Page v. Esty, liv. 319. 
 
 17. A surrender of the lease, after sucb conveyance, to the original 
 lessor, gives him no interest in the premises ; and, if the lease is can- 
 celed, the grantee holds the premises discharged of the incumbrance. 
 Page v. Esty, liv. 319. . 
 
 18. Proof that tbe tenant bas been duly convicted of being a common 
 seller of intoxicating liquor within the time covered by his lease, and has 
 paid the fine and costs of the prosecution, is not enough to bring the case 
 within § 3, c. 54, of the Public Laws of 1858 ; but to avoid the lease it 
 must also appear that the offense was committed on the prerdises. Ma- 
 chias Hotel Co. v. Fisher, Ini. 321. 
 
 See Assumpsit, 26. 
 
 LEGISLATURE. 
 
 The legislature has power to confer the authority upon towns to offer 
 or pay bounties, and to ratify notes offering bounties by subsequent en- 
 actment. Winchester v. Corinna, lv. 9. 
 
312 LIBEL AND SLANDER. 
 
 LETTER. 
 
 See Agency, 32. Evidence, 1, 2, 3, 4, 5, 23, 178. 
 
 LIBEL AND SLANDER. 
 
 1. By R. S., c. 87, § 8, an action on the case for slander survives, and> 
 after the death of the jjlaintiff, may be prosecuted by his executor, or the 
 administrator of his estate. Nutting v. Qoodi idge, xlti. 82. 
 
 2. In cases of slander, it is proper for the presiding judge to instruct 
 the jury, that, in the assessment of damages, they may take into consid- 
 eration the wealth of the defendant. Humphries v. Parker, lii. 502. 
 
 3. Words in a declaration of libel, not in themselves libellous, are not 
 enlarged or extended by an innuendo. Emery v. Prescott, liv. 889. 
 Patterson v. Wilkinson, lv. 42. 
 
 4. The words to "carry the" plaintiff "back to Thomaston where he 
 came from," are not of themselves libellous. Emery v. Prescott, lit. 389. 
 
 5. Nor does the innuendo that Thomaston means " the State prison 
 situated in the town of Thomaston, which place is known by the name 
 of the town," unexplained by introductory matter, make the words ac- 
 tionable, which, without innuendo, would not be libellous. Emery v. 
 Prescott, LIV. 389. 
 
 6. When the words themselves are not actionable, but require refer- 
 ence to some intrinsic fact to make them so, such fact must be averred 
 in a traversable form with a proper colloquium. Patterson v. Wilkinson, 
 LV. 42. 
 
 7. The words that "Malvina (meaning the plaintiff) has been to 
 swear a young one," fairly convey theidea that the plaintiff has commit- 
 ted the offense of fornication. Patterson v. Wilkinson, lv. 42. 
 
 8. Various actionable words, spoken at different times, constitute dis- 
 tinct causes of action. Patterson v. Wilkinsoii, lv. 42. 
 
 9. Any charge of dishonesty against an individual, spoken of him in 
 connection with his business, whereby his character in such business 
 may be injuriously affected, is actionable. Orr v. Skofield, Lvi. 483. 
 
 10. The plaintiff alleged that the defendant did utter and publish, &c., 
 the following false, scandalous, and malicious words of and concerning 
 the plaintiff in his capacity as a shipmaster, and of and concerning the 
 business and calling of the plaintiff in his capacity of shipmaster, to wit, 
 " he (meaning the plaintiff), sold the consignment of the ship Rising 
 Sun (of which he was then master), and pocketed the money." Hdd, 
 that the words were slanderous if not true. Orr v. Skofield, lvi. 483. 
 
 See Costs, 55. 
 
LIEN. 
 
 313 
 
 LIEN". 
 
 I. WHEN A LIEN DOES OE DOBS NOT EXIST. 
 II. GENERALLY, AND HOW ENFORCED. 
 IIL HOW LOST OR DISCHARGED. 
 
 For Attorney's Lien, See Attoenet and Counselor, 7-16. 
 
 \. WHEN A LIEN DOES OR DOES NOT EXIST. 
 
 1. At common law, the relation of consignor and factor, with advances 
 from the latter to the former, creates a lien on the goods consigned. 
 Oragg v. Brown, xliv. 157. 
 
 2. One who has cut and hauled to his mill a quantity of timber, from 
 the land of another, under a contract with the owner thereof, has a lien 
 at common law for his labor upon the boards and logs in his possession, 
 which were manufactured from the timber, and also upon the logs which 
 are unsawed. Palmer v. Tucker, xlv. 316. 
 
 3. And if a part of the lumber has been delivered to, and taken away, 
 by the owner, the whole claim for cutting, hauling, and sawing is a lien 
 upon that part which remains. Palmer v. Tucker, xlv. 316. 
 
 4. A person who has the rightful possession of logs for the purpose of 
 driving them under a contract, has such a qualified interest in the logs, 
 that the timber may be regarded as his, for all purposes connected with 
 the driving, within the meaning of R. S. c. 42, § 6, and sufficient to en- 
 able him to maintain an action against the owner of logs which have be- 
 come intermixed with the logs he has driven under such contract. Txb- 
 hets V. Tibbets, xlvi. 365. 
 
 5. Manufacturers cannot lawfully set up a lien for labor performed 
 upon articles tortiously converted to their own use. Sotchkiss v. Sunt, 
 XLix. 213. 
 
 6. When receivers are appointed in any case, a lien is created by R. S. 
 c. 74, § 47, upon the real estate, situate in this State, of the stockhold- 
 ers liable for claims which exist against the bank; therefore the court 
 has jurisdiction over the real estate of non-resident stockholders. Wis- 
 well V. Starr, l. 381. 
 
 7. Where A. entered into a written contract, in May, 1853, to build a 
 house in accordance with certain specifications, at an agreed price, to be 
 completed on or before September following; and he did nothing but 
 make the doors until the fall of 1857 ; when another written contract 
 was made materially different from the former, in regard to the specifica- 
 tions, considerations, rights, and duties of the parties, containing stipula- 
 tions inconsistent with those of the former, but complete in itself, Meld, 
 that the latter contract cannot be construed as a supplement to the 
 former, but as a new and independent contract; and a mechanic's lien se- 
 cured upon the house could not refer back to the former. Cocheco Bank 
 V. Berry, m. 293. 
 
 8. The lien provided for in § 11, c. 450 of the Special Laws of 1860, 
 took effect at the time the liability was incurred, and could not include 
 property not then owned by the company. Bath v. Miller, liii. 308. 
 
314 LIEN. 
 
 9. Attaching creditors would hold wood subsequently purchased with 
 the earnings and for the use of the whole road, as against any lien of the' 
 plaintiffs, claimed by a subsequent taking possession under § 6, c. 450. 
 Bath V. Miller, liii. 308. 
 
 10. It is not competent for a debtor to create upon any portion of his 
 property a lien, which shall have precedence of all attachments and in- 
 cumbrances, by admissions that are inconsistent with actual facts; nor 
 can he in the same manner restore a lost lien. Frost v. Ilsley, lit. 345. 
 
 11. A saw-mill, owned by the plaintiif and the defendants' grantor, 
 as tenants in common, was destroyed by fire. Subsequently, the latter 
 called a meeting of the owners, and proceeded to rebuild under R. S. of 
 1841, c. 86, and then conveyed to the defendants by deed of warranty, 
 containing the following : " meaning hereby to convey one-half of the 
 saw-mil! privilege and all the mill, subject to the claims of" the plaintiff, 
 " in said mill, and reserve to myself all claims and rights of action 
 against " the plaintifi". Held, (1) That the defendants' grantor acquired 
 no title under the mill act, to the half of the mill of which the plaintiff 
 had a deed ; (2) That the proceedings under the mill act, could, at most, 
 give him a lien to be " reimbursed, and paid such sums, as he had ad- 
 vanced thereon ; " (3) Thathis deed did not give his grantees a lien on 
 the premises. Moore v. Gibson, Lin. 551. 
 
 See ExBCUTOE, &c., 17. 
 
 n. GENEEALLY, AND HOW ENFORCED. 
 
 12. Where the owner of logs appears to contest a lien claim, he will 
 not be permitted to file a separate plea, but he may justify under the 
 general issue and an appropriate brief statement ; and one verdict and 
 special findings, under the direction of the court, are suflScient to establish 
 the rights of all the parties. Lumhert v. Lumhert, xliv. 85. 
 
 13. Where an attachment of a vessel is made to preserve the statute 
 lien, if in the plaintiff's account sued, are embraced items for which he 
 has no lien, the attachment is not, for that cause, void; but if a nou-lien 
 item should be included in the judgment, the attachment will be there- 
 by vacated. Deering v. Lord, xlv. 293. 
 
 14. If such writ contain no direction to the officer to attach the ship, 
 but only to "attach the goods and estate of" the debtor, the attachment 
 of the ship will be invalid, as against one who previous thereto had be- 
 come the purchaser of it from the builder. Deering v. Lord, xlv. 293. 
 
 15. So, if a mortgagee hold the ship, and there be no specific direction 
 in the writ to attach it, an attachment of it will be void, unless the at- 
 taching creditor make to the mortgagee the tender required by R. S. 
 of 1841, c. 114, § 70. Deering v. Lord, xlv. 293. 
 
 16. Although a lien for cutting, hauling, and sawing timber accrued 
 prior to the enactment of c. 273 of the Public Laws of 1856, the party 
 may avail himself of the provisions of that chapter for its enforcement 
 of his lien. Palmer v. Tucker, xlv. 316. 
 
 17. One who had performed labor on masts, brought an action there- 
 for, under c. 144 of the Public Laws of 1855, and the masts were at- 
 tached for his lien thereon. They were held by a creditor of the owner 
 as collateral security, and afterwards received by him in payment of the 
 
LIEN. 
 
 315 
 
 debt for which he held them. The lien-claimant obtained judgment and 
 execution in the ordinary mode, and, on the execution, the officer seized 
 and sold the masts. In a suit by the creditor against the officer, Hdd, 
 (1) That such judgment and execution conferred upon the officer no au- 
 thority to take any property but that of the judgment debtor ; (2) That 
 in the suit of the lien-claimant against the original owner, the purchaser 
 of the masts was entitled to notice, without which his rights would not 
 be affected by the judgment, unless he had actually waived his right to 
 be notified. Holyohe v. Gilmore, xly. 566. 
 
 18. Where proceedings are instituted which are intended to secure the 
 plaintiff's lien upon logs, under the statute, the debtor not being the 
 owner of the logs, if the writ and officer's return show a case in personam 
 and not in rem, any order of the court in relation to the owner will be 
 entirely nugatory. But the case may proceed to judgment against the 
 debtor as in ordinary cases. Camphell v. Smith, xlvii. 143. 
 
 19. In a suit to enforce a lien-claim on logs, &o., the general owner 
 having been duly notified, whether he or the defendant in the suit ap- 
 pears or not, there must be, to preserve the plaintiff's lien, a judgment of 
 court confirming the validity of the lien. Annis v. Gilmore, xlvii. 152. 
 
 20. When no such judgment appears of record, and an action is brought 
 against the officer for not retaining the logs and selling them on execu- 
 tion, the defendant officer is not estopped from showing that the lien did 
 not exist, or was lost. Annis v. Gilmore, xlvii. 152. 
 
 21. In an action brought to enforce such lien, if judgment is recovered, 
 and execution issued in common form, with directions to satisfy it out of 
 the goods, chattels, or lands of the debtor, and for want thereof, upon his 
 body, the logs attached cannot be legally seized by virtue of it, nor is the 
 officer responsible for not seizing and selling them. Annis v. Gilmore, 
 XLvn. 152. 
 
 22. Where logs were attached to secure the lien thereon provided by 
 R. S., c. 91, and the general owner receipted to the officer therefor, re- 
 serving his right to claim them as his property, the receipter may refuse 
 to deliver the logs when demanded of him by an officer holding the exe- 
 cution, if there be no mandate therein, authorizing him to satisfy the 
 judgment by seizure and sale of them, his precept running only against 
 the property and body of the debtor therein, who was never the owner 
 of the logs. Wilson v. Ladd, xlix. 73. 
 
 28. Actual notice to the owner of the logs, of a suit in which they have 
 been attached, is not required, as the statute provides the notice shall be 
 " such as the court shall order ; " and a notice will be sufficient if ordered 
 and given by publication in a newspaper. Wilson v. Ladd, xlix. 73. 
 
 24. In a suit, under the statute, to enforce a laborer's lien on logs, not 
 belonging to the persons for whom the services were rendered, a valid 
 judgment in rem must be obtained against the property. Thompson v. 
 
 Gilmore, l. 428. 
 
 25. The record of a judgment, in such a case, must show that-the logs, 
 upon which the labor was expended, are the same, which, in the writ 
 were conjmanded to be attached, and which were attached and returned 
 by the officer. Thompson v. Gilmore, l. 428. 
 
 26. The officer's return on such writ does not establish the fact, that 
 the logs attached were identical with those upon which the services 
 
316 LIEN. 
 
 ■were rendered, although having marks in common with them ; but it 
 must be shown aliunde. Thompson v. Gilmore, l. 428. 
 
 27. In a case where the writ contained an allegation that labor was 
 expended on logs of a certain mark, a default merely admits that fact, 
 but does not establish the fact, that the logs described in the writ are 
 the same logs which were attached and returned by the officer. Thomp- 
 son V. Gilmore, l. 428. 
 
 28. The lien is no part of the contract, but a merely incidental accom- 
 paniment, deriving its vitality from positive enactment, and liable always 
 to be controlled, modified, or taken away by subsequent enactment. 
 If^rost V. llsley, lit. 345. 
 
 29. In a suit under the statute to enforce a laborer's lien en logs, not 
 belonging to the person for whom the personal services were performed, 
 the writ ordered the attachment of two lots of logs in a certain river and 
 of a specified mark ; the declaration set out the plaintiflTs lien upon logs 
 in the same river, of the same marks, by reason of his labor in driving 
 the same ; the officer returned an attachment as under a lien of two lots 
 of logs in the river, of the marks described in the declaration ; all par- 
 ties interested were duly summoned, and they appeared, admitted the 
 truth of the declaration, and that the logs were attached within sixty 
 days after the same arrived at their place of destination. Held, that the 
 identity of the logs attached, with tliose upon which the plaintiff labored 
 and thereby acquired a lien, were sufficiently established by the forego- 
 ing facts. £ean v. /Soper, lvi. 297. / 
 
 See Estoppel, 17, 20. 
 
 Joint Tenant, &o., 12. 
 
 III. HOW LOST OK DISCHARGED. 
 
 30. If one, having a lien upon goods for advances made by himself, 
 consents to a sale to a purchaser from the owner of the goods, or con- 
 ceals from the purchaser his claim on the property, he will be estopped 
 to deny the title so acquired. Gragg v. Brown, xlit. 157. 
 
 31. A laborer will not be considered as having abandoned or waived 
 his lien on lumber cut and hauled by him, which accrued prior to the en- 
 actment of c. 273 of the Public Laws of 1856, if, previous to the passage 
 of that law, he had caused his demand to be sued, and the lumber at- 
 tached, if he retained possession of it, insisted on his lien, and no judg- 
 ment had been rendered in that suit. Palmer v. TucJcer, xlv. 316. 
 
 32. If the mortgagee of wood attached as the property of the mort- 
 gager, replevy the same from the attaching officer, and permit it to go 
 back into the possession of the mortgager who burnt it with the knowl- 
 edge and consent of the mortgagee, the latter thereby waives all lien un- 
 der the mortgage. JBath v. Miller, liii. 308. 
 
 33. In 1855, the plaintiffs contracted with W. to furnish labor and 
 materials for the entire wood-work of a hotel, to be paid when completed. 
 In 1858, the work was suspended without fault of the plaintiffs. In 
 1862, W. agreed that he had stopped the work, that the contract was 
 still in force, but that plaintiffs might secure their lien ; whereupon an 
 action was commenced for that purpose, during the pendency of which 
 W. died, his estate was represented insolvent, and commissioners of in- 
 
LIMITATIONS, STATUTE OF. 817 
 
 solvency appointed. Held, (1) That, as the statute was when the con- 
 tract was made (R. S., c. 91, § 16), the lien might have been enforced ; 
 but, (2) That by virtue of c. 52 of the Public Laws of 1858, the lien 
 lapsed in ninety days after the labor was performed and materials fur- 
 nished. Frost v. Ilsley, liv. 345. 
 
 See Insurance, 19. 
 
 LIMITATIONS, STATUTE OF. 
 
 I. IN GENERAL. 
 II. EXCEPTIONS AND AVOIDANCE. 
 
 IN GENERAL. 
 
 (a) Peksonal actions. 
 
 (b) Actions against executoks and administbatoes. 
 
 (c) Actions against sheriffs. 
 
 (d) Statute actions. 
 
 (a) Personal actions. 
 
 1. The limitation in R. S. of 1841, c. 76, § 18, of the liability of a stock- 
 holder in a corporation for corporate debts, to " the term of six months 
 after judgment recovered against such corporation in any suit commenced 
 within the year aforesaid," applies only to suits against stockholders 
 whose stock has been transferred, and the transfer recorded ; and not the 
 case of stockholders who have never parted with their stock. Ingalls 
 V. Cole., XLvii. 530. 
 
 2. Chapter 109 of the Public Laws of 1844, did not change or extend 
 the limitation in said § 18, so as to limit the liability of stockholders who 
 have not transferred their stock. Ingalls v. Cole, xlyii. 530. 
 
 3. A judgment, after the Inpse of twenty years from its recovery, is 
 presumed to be paid ; but this presumption may be rebutted by proof. 
 Noble V. Merrill., XLVin. 140. Cony v. Barrows, xlvi. 497. Knight v. 
 Macomber, lv. 132. 
 
 4. A debtor, after the lapse of twenty years, cannot maintain assump- 
 sit against the creditor for neglecting to sue out scire facias against one 
 summoned as trustee of the former, it not appearing that the suing out 
 of such scire facias would have been of any service to the debtor. Mer- 
 rill V. Noble, XLvm. 140. 
 
 5. An action, by a town against a railroad company, for expenditures 
 to put in good condition a highway obstructed by the company's rail- 
 road, can be brought only within one year from the time when such ob- 
 struction was caused or created. Veazie v. Fenobscot JR. B. Co., xlix. 
 119. 
 
318 LIMITATIONS, STATUTE OF. 
 
 6. But when a town has been compelled to pay damages on account 
 of a defect in a highway, caused by the construction of a railroad there- 
 on, it may maintain an action therefor commenced within a year from 
 the time when its liability is ascertained and fixed. Veazie v. Penob- 
 scot M. It. Co., XLix. 119. 
 
 7. "Where one, by will duly proved, devised land to his daughter and 
 her husband during their natural life, then to his daughter's heirs after her, 
 the heirs' right of possession will remain twenty years next after the 
 death of the survivor oft he joint tenants. Moulton v. Edgcomb, lh. 31. 
 
 8. A person deaf and dumb is prima facie non compos mentis ; the 
 statute of limitations does not run against them, unless they are shown 
 to possess sufficient intelligence to know and comprehend their legal 
 rights and liabilities. Oliver v. Berry, liii. 206. 
 
 9. A defendant cannot invoke the aid of the statute of limitations un- 
 less he has specified it as a ground of defense. Longfellow v. Longfel- 
 low, LIT. 240. 
 
 10. R. S., c. 81, § 112, does not make the expiration of twenty years a 
 bar to a suit upon a judgment; such a lapse simply creates a presump- 
 tion of payment, which may be rebutted. Knight v. Macomber, lv. 
 132. 
 
 (b) Actions hy and against executors and administrators. 
 
 11. R. S. of 1841, c. 120, § 24, is a conclusive bar against any process 
 commenced by creditors of the estate of a deceased person, in case of 
 new assets, after the expiration of four years from the time such assets 
 actually came into the hands of the administrator. Thurston v. Low- 
 der, xLvii. 72. 
 
 12. And the statute applies as well to any process in the probate court, 
 as to suits at law. Thurston v. Lowder, xtvii. 72. 
 
 13. A claim will be subject to this limitation, notwithstanding it has 
 been allowed by the commissioners of insolvency, and in no part paid, 
 for want of any estate to be divided. Thurston v. Lowder, xlvii. 72. 
 
 14. The defendant agreed in writing to convey to the plaintiff's intes- 
 tate certain real estate upon payment of certain specified notes given as 
 the consideration therefor. In an action upon the agreement. Held, that 
 the payment of the notes as they became due was a condition precedent; 
 and that the death of the plaintiff's intestate did not operate as an ex- 
 tension of the time of payment one year from the date of the death. 
 Simpson v. Pease, liii. 497. 
 
 (c) Actions against sheriffs. 
 
 15. A delay often years in bringing a suit upon sheriff's official bond, 
 after judgment against him for default of official duty, will be no bar to 
 the action, if there have been no contract, consideration, or motion for 
 delay. Cony v. Barrows, xlti. 497. 
 
 16. The right of action against an officer for not taking a sufficient 
 bond in a replevin suit, does not accrue to the plaintiff's attorney until 
 the lien of the latter becomes perfected by the rendition of judgment in 
 the replevin suit ; and the statute of limitation does not till then com- 
 mence to run. Newbert v. Cunningham, l, 231. 
 
IJMITATIONS, STATUTE OF. 
 
 319 
 
 (d) Statute actions. 
 
 17. The statute limits the bringing of an action to recover back usu- 
 rious interest to one year from the time of payment. Furlong v. Pearce, 
 LI. 299. 
 
 18. Where a negotiable note, payable at a future day, is given for the 
 excess of interest, the limitation is not from the date of the note, but 
 from the time the note is actually paid. Furlong v. Pearce, li. 299. 
 
 19. Evidence that three executions upon the judgment in suit were 
 returned in no part satisfied, — that the debtor, upon demand of payment, 
 replied he had no property and could not make payment; that, at about 
 the time of the rendition of the judgment, he put his property, real and 
 personal, out of his hands, and claimed not to be the owner of any prop- 
 erty since, and his continued reputation of insolvency, is sufficient to re- 
 pel the presumption of payment, arising from a lapse of more than 
 twenty years. Knight v. Macomber, lv. 132. 
 
 n. EXCEPTIONS AND AVOIDANCE. 
 
 (a) Parties abkoad. 
 
 (b) Attested note. 
 (o) Accounts. 
 
 (d) Payment. 
 
 (e) Other things. 
 
 (a) Parties cibroad. 
 
 20. The provisions of R. S. c. 81, § 114, that the time of the defend- 
 ant's absence from the State " shall not be taken as a part of the time 
 limited for the commencement of the action," applies to actions upon 
 the statute to recover property lost in gambling. Peyret v. Coffee, 
 XLvm. 319. 
 
 See Limitations, Stat, of, 29. 
 
 (b) Attested note. 
 
 21. A promissory note, attested after it was signed by the maker, and 
 without his knowledge, is barred by the statute of limitations, after the 
 lapse of six years from its maturity. Brown v. Cousens, li. 301. 
 
 See Estoppel, 36. 
 
 (c) Accounts. 
 
 22. Items of credit, consisting merely of partial payments of plaintiff's 
 account, where the defendant kept no account and had no charges 
 against the plaintiff, do not constitute the accounts " mutual " within 
 R. S. c. 81, § 99. But vide Public Laws of 1867, c. 117. 
 
 See Limitations, Stat, of, 33. 
 
 (d) Payment. 
 
 28. A promissory note, where a payment has been made and indorsed 
 thereon by the maker, will not be barred by the statute of limitations, 
 until six years from such indorsement. JSToble v. Edes, li. 34. 
 
320 LIMITATIONS, STATUTE OF. 
 
 24. If a surety on a note indorses thereon a payment as having been 
 made by himseltj the statute of limitations will be no bar to an action 
 against him, commenced within six years from the time of such pay- 
 ment, notwithstanding he may have paid the money as the agent of the 
 principal, if he did not disclose that fact. Holmes v. Durdl, li. 201, 
 Tainter v. Winter, liii. 348. 
 
 25. And so, if the money thus paid was received from the sale of 
 property pledged to him by the principal, to indemnify him against loss 
 by becoming surety. Holmes v. Durell, li. 201. 
 
 26. Where one of the signers of a promissory note makes a partial 
 payment and causes to be indorsed thereon that the payment was made 
 by him, by name, and the holder, relying upon such payment, permits 
 the note to outlaw as to the other makers, the defendant will not be per- 
 mitted to repudiate the payment on his own, and say it was done by 
 another. Tainter v. Winter, liii. 348. 
 
 27. By c. 81, § 111, of R. S. of 1857, a new promise is implied from 
 the fact of a partial payment of a promissory note. Egery v. Decreio, 
 LIII. 392. 
 
 28. Such payment need not be indorsed; but it may be proved by 
 parol. Egery v. Decrew, liii. 392. 
 
 29. The partial payment of an account, made within six years, and ap- 
 propriated toward the payment of the account as a whole and not to 
 any one or more of its particular items, will take the account out of the 
 statute of limitations. Dyer v. Walker, liv. 18. 
 
 80. Where the mortgager, and those claiming under him, permit the 
 mortgagee to hold the possession for twenty years without accounting, 
 and without admitting that he holds only as mortgagee, his title becomes 
 absolute. Roberts v. lAttlefield, xlviii. 61. 
 
 (e) Other things. 
 
 31. Since the enactment of c. 73, of the Public Laws of 1848, author- 
 izing any married woman to commence, prosecute, and defend suits in 
 law and equity, in her own name, and as if she were unmarried, the ex- 
 ception contained in the statute of limitations, R. S., c. 81, § 100, is to be' 
 regarded as inoperative so far as regards married women, they being no 
 longer under any legal disability as to suing or defending actions. 
 Brown v. Cousens, li. 301. 
 
 32. Section 100, c. 81, of R. S., of 1857, gives minors six years, after 
 they become of age, to bring actions of assumpsit for causes of action 
 which accrued during their minority. Cutler v. Currier, lit. 81. 
 
 33. The statute of limitations is no bar to an action in this State, upon 
 a promissory note made in another State, when the defendant- has not 
 resided here since the note was given. Brown v. Nourse, lv. 230. 
 
LIQUOE, SPIRITUOUS AND INTOXICATING. 321 
 
 LIQUOR, SPIRITUOUS AND INTOXICATING. 
 
 I. CONTRACTS IK EBGAED TO, AND CIVIL ACTIONS THEEBON. 
 n. CRIMINAL PEOCESSBS. 
 III. GENEEALLY. 
 
 L CONTEACTS IN EBGAED TO, AND CIVIL ACTIONS THEEBON. 
 
 1. The subsequent repeal of c. 166, of the Public Laws of 1855, pro- 
 hibiting the sale of intoxicating liquors, can have no effect upon a con- 
 tract for the purchase of such liquors made while said chapter was in 
 force. Hathaway v. Moran, xliv. 67. Banchor v. Mansel, xlvii. 58. 
 Robinson v. Barrows, xltiu. 186. 
 
 2. An action may be maintained for the price of intoxicating liquors 
 sold in Boston, in conformity with the laws of Massachusetts, to a citi- 
 zen of Maine, if the vendor had no knowledge that the liquors were in- 
 tended for sale in this State in violation of law. The maintenance of 
 such action is not prohibited by c. 255, § 18 of the Public Laws of 1856. 
 Barnard v. Field, xlvi. 526. 
 
 3. Aliter, when the vendor had knowledge of the vendee's intent to 
 sell them here in violation of law, and did acts, beyond the mere sale, 
 which aided the purchaser in his unlawful design. Banchor v. Mansel, 
 XLvii. 58. 
 
 4. So, if he simply had the knowledge that the liquors were intended 
 for illegal sale here. Wilson v. Stratton, xlvii. 120. 
 
 5. Where a Massachusetts dealer, well knowing the law and policy of 
 this State, prohibiting the indiscriminate sale of intoxicating liquors, 
 sends his agent to solicit orders for liquors to be sold here in violation of 
 our statute law, even if the sale is completed in Massachusetts, it is in 
 fraud of our laws, and cannot be upheld by any sound principle of comi- 
 ty. Wilson V. 8tratton, xlvii. 120. 
 
 6. The payment of a promissory note, given in 1857, for intoxicating 
 liquors, sold by the licensing board of a town, to a person by them li- 
 censed to sell in the town, being unauthorized by § 1, c. 255 of the Pub- 
 lic Laws of 1856, cannot be legally enforced. Webster v. Sanborn, xLvn. 
 471. 
 
 7. Nor does the fact, that the parties supposed they were acting in ac- 
 cordance with the provisions of the law, change or affect their legal 
 rights. Webster v. Sanborn, xlvii. 471. 
 
 8. The provisions of § 23, c. 166, of the Public Laws of 1855, forbidding 
 the maintenance of "any" action for the value or possession of intoxicat- 
 ing liquors, are limited in their application to liquors liable to seizure and 
 forfeiture under that statute, or intended for sale in this State in violation 
 of law. Robinson v. Barrows, xLVin. 186. 
 
 9. Thus construed, this statute is in affirmance of the principles of the 
 common law. Robinson v. Barrows, XLVin. 186. 
 
 10. "When the possession of property intended for sale in violation of 
 law is made criminal by statute, no action can be maintained while such 
 
 21 
 
322 LIQUOR, SPIEITUOUS AND INTOXICATING. 
 
 statute is in force or after its repeal, for the coaversion of such property- 
 while the statute was in force. Hobinson v. -Barrows, XLvni. 186. 
 
 11. It seems, that if the plaintiff in trover receives the property sued 
 for, into his possession immediately after its conversion by the defendant, 
 and in the same condition as at the time of its conversion, he can recov- 
 er but nominal damages. Hobinson v. JBarrows, xlviii. 186. 
 
 12. An ofScer, who has seized intoxicating liquors under proceedings 
 in accordance with the statute, is not responsible for their deterioration 
 occurring without his fault, while they are in the custody of the law. 
 Hobinson v. Harrows, XLVin. 186. 
 
 13. Nor is he liable for oiEcial acts under a sufficient warrant, although 
 the statute by virtue of which the warrant is issued was subsequently re- 
 pealed. Hobinson v. Harrows, xLvni. 186. 
 
 14. By the statutes in force in 1854, towns were authorized to sell 
 spirituous and intoxicating liquors for specific purposes, which, of neces- 
 sity, implied an authority to purchase them. Kidder v. Knox, XLvm. 
 551. 
 
 15. An agent to sell is not, necessarily, an agent to purchase; and if 
 this specific power was not delegated to the agent appointed to sell the 
 liquors, or to some other particular person, the selectmen were the gen- 
 eral agents to act for the town in giving effect to the law. Kidder v. 
 Knox, XLvni. 551. 
 
 16. The sale of liquors to the selectmen, as the agents of the town, was a 
 sale to the town ; and the vender may recover their value, in an action 
 against the town. Kidder v. Knox, xlviii. 551. 
 
 17. For liquors so purchased, the selectmen, signing as such, gave their 
 negotiable promissory note to the vender ; in an action by the latter 
 against the town. Held, that the giving of the note did not essentially 
 change the nature of the original contract, but made it more susceptible 
 of proof; and it will not be presumed that the vender thereby intended 
 to extinguish the original liability of the town. Kidder v. Knox, xLvm. 
 551. 
 
 18. A sale of liquors was made in Boston to the selectmen of a town 
 in this State, by the plaintifls, who were not licensed to. sell by the laws 
 of Massachusetts. In their action against the town to recover payment 
 therefor, Held, that an action could not be maintained, notwithstanding 
 the town was by our statutes authorized to purchase. Dudley v. Bwlc- 
 field, LI. 254. 
 
 19. A mortgage of an apothecary's stock, consisting in part of intoxi- 
 cating liquors, is a sale upon condition of such liquors, and a violation 
 both of the spirit and letter of § 1, c. 33, of the Pub. Laws of 1858. 
 Hay V. Parker, lv. 355. 
 
 20. The mortagee in such mortgage cannot maintain an action of tres- 
 pass de bonis against an officer for attaching the stock covered by the 
 mortgage, as the property of the mortgager, unless the latter was duly 
 licensed under c. 33. Hay v. ParJcer, lv. 355. 
 
 21. The owner of intoxicating liquors held in this State^ and intepded 
 for illegal sale in this or another State, may maintain trespass de bonis 
 against the unauthorized conversion of them by the sherifl^ acting by 
 his deputy, under color of his office. Hamilton v. Goding, lv. 419. 
 
LIQUOR, SPIEITXJODS AND INTOXICATING. 323 
 
 22. The recovery in trespass of the value of intoxicating liquors thus 
 held, and the consequent transfer of the title thereto to the defendant 
 by the mere operation of law, do not constitute a sale "by any person 
 or persons," within the spirit of c. 33. Hamilton v. Goding, lt. 419. 
 
 23. Generally, the legality of contracts is to be determined by the law 
 of the place where made. But by virtue of § 27, c. 33, Pub. Laws of 
 1858, if a person purchase intoxicating liquors out of the State, with in- 
 tention to sell any part thereof in violation of that chapter, the seller 
 cannot recover the price of the liquors here, although he had no knowl- 
 edge of the purchaser's intention. Meseney v. Gray, lv. 540. 
 
 See Amendment, 6. 
 
 n. CEIMIITAL PEOCESSES. 
 
 24. An indictment under the statute of 1856, alleging that the re- 
 spondent, at a time and place named, " did keep a drinking-house and 
 tippling-shop contrary to the form of the statute," is sufficient. 8tate v. 
 Casey, xlv. 435. 
 
 25. Under § 14, c. 33 of the Pub. Laws of ,1858, on a warrant author- 
 izing a search for intoxicating liquors, kept for illegal sale, and the arrest 
 of the keeper, when such liquors are found, the fact that such liquors 
 having been found is to be proved before the magistrate by competent 
 evidence under oath, and not by the return of the officer. State v. Ste- 
 vens, xLvn. 357. 
 
 26. Under § 20, if the officer is prevented from seizing the liquors by 
 their being destroyed, he may arrest the keeper, in which case he must 
 make return on the warrant of his being so prevented, and how, and as 
 near as may be, the quantity destroyed ; but, before the magistrate, these 
 facts are to be proved by evidence under oath, and not by the return. 
 State V. Stevens, xlvii. 357. 
 
 27. It is not necessary that 'the officer should make return of the fact 
 and manner of the destruction of the liquors, before arresting the keeper. 
 State V. Stevens, xlvii. 357. 
 
 28. Where an officer returned on his warrant, that he found a " demi- 
 john containing one gallon, more or less, of what I called St. Croix rum," 
 which the keeper destroyed before the officer could seize it, whereupon 
 he arrested the keeper and took him before a magistrate for trial ; the 
 person who, by violence, prevented the officer from seizing the liquor, 
 and ascertaining its quality with certainty, cannot object that the return 
 is not sufficiently certain. State v. Stevens, XLvn. 357. 
 
 29. Where, upon a warrant authorizing search for, and seizure of intox- 
 icating liquorsj as being kept and deposited for illegal sale, such liquors 
 have been seized and libelled, a person who appears generally, and 
 files his claim to the liquors or a part of them, thereby waives any defect 
 in the monition and notice. State v. Bartlett, xlvii. 396. 
 
 30. Upon trial on a libel against intoxicating liquors seized as beino' 
 kept for illegal sale, the original complaint and warrant are admissible in 
 evidence. State v. Bartlett, xltii. 396. 
 
 81. The testimony of the officer who seized and libelled the liquors 
 as to their identity, is admissible. State YrJBartlett, xlvil 896. ' 
 
324 LIQUOR, SPIRITUOUS AND INTOXICATING. 
 
 32. An indictment under the statute of 1858, alleging that T. C, at a 
 time and place named, " did keep a drinking-house and tippling-shop 
 contrary to the form of the statute," is sufficient. State v. Oollins, 
 XLViii. 217. State v. Cofren, xlvui. 364. 
 
 83. Ou the trial of an indictment for being a common seller of intoxi- 
 cating liquors, no evidence of any acts of the respondent committed 
 more than two years before the indictment was found, can be legally in- 
 troduced. State V. Cofren, xlyiii. 364. 
 
 34. But it is not fatal to such indictment that the time embraced ii) 
 the charge commenced more than two years before the indictment was 
 found. State v. Cofren, xltiii. 364. 
 
 35. The provisions of the act of 1858, authorizing search for, and seiz- 
 ure of, intoxicating liquors, are not in conflict with the constitution of 
 this State. State v. Miller, xlviii. 576. 
 
 36. When an officer seizes intoxicating liquors upon a warrant, and 
 arrests their alleged keeper, he must have both before the magistrate 
 who issued the warrant. State v. Miller, xlviii. 576. 
 
 37. From that time, the proceedings against the person and those 
 against the liquors are separate and distinct. The person accused is 
 tried upon the complaint; while upon the libel is tried the question 
 whether the liquors were intended for unlawful sale by any one. The 
 judgment in one case does not, in any manner, affect the judgment in 
 the other. State v. Miller, xlviii. 576. 
 
 38. If the cases be appealed, they should be entered and tried in the 
 appellate court as two cases. State v. Miller, xlviii. 576. 
 
 39. Where a person files a claim to intoxicating liquors \yhicji have 
 been libelled, he cannot object to defects in the monition and notice. 
 State V. Miller, xlviii. 576. 
 
 40. In a complaint for search and seizure, the description of the place 
 to be searched was, "the store occupied by said" respondent, "situated 
 on the northerly side of Fore street, in said P., being numbered 197 on 
 said street." In the warrant, the description was the same, except the 
 number was stated to be 179. Held, that warrant justified the search in 
 No. 197, it appearing in evidence that the respondent occupied only that 
 store, situated on the northerly side of Fore street. State v. Hobinson, 
 xLix. 285. 
 
 41. When a claimant of seized liquors appeals from the decision of the 
 magistrate, the appeal is properly entered at the term of the court held 
 for the transaction of criminal business. State v. Robinson, xlix. 285. 
 
 42. On the trial of the issue in such case in the appellate court, the 
 same oath is to be administered to the jurors as in other criminal busi- 
 ness. State v. Robinson, xlix. 285. 
 
 43. On the trial of an indictment against a person as a common seller 
 of intoxicating liquors, the instruction to the jury, "that under our pres- 
 ent statutes, no particular number of sales are necessary to be proved 
 to constitute a common seller, but that the jury must be satisfied, from 
 the evidence, that selling intoxicating liquors was her common and ordi- 
 nary business, and they might be authorized to find the respondent guil- 
 ty without proof of any particular number of sales," is sufficiently favor-- 
 able for the respondent. State v. 0' Conner, xlix. 594. 
 
 44. Judgment will not be arrested in case of libel under c. 33, of the 
 
LIQUOR, SPIRITUOUS AND INTOXICATING. 
 
 325 
 
 Public Laws of 1858, because the officer did not, in accordance with the 
 requirements of the "search and seizure " warrant, arrest, or give any 
 reason for not arresting the person in whose possession the liquors were 
 found. Seath v. Farnham, liii. 172. 
 
 45. The fact that a person has been convicted of keeping a drinking- 
 house and tippling-shop is no bar to an indictment for presuming to be 
 a common seller, although both indictments cover the same period of 
 time, and are supported by the same acts of illegal sale. State v. Irir 
 ness, Lni. 536. 
 
 46. A plurality of sales is essential to constitute one a common seller. 
 Aliter, with the offense of keeping a drinking-house and tippling-shop. 
 State V. Inness, liii. 536. State v. 0' Conner, xlix. 594. 
 
 47. In the trial of a libel against certain intoxicating liquors, the 
 claimant requested the presiding judge to instruct the jury that, if they 
 should find the " item of ten barrels of rum are not rum, but a different 
 article, the libel cannot be maintained for that item." The judge in- 
 structed the jury to " confine their inquiries entirely to the liquors^speci- 
 fied in the claim and mentioned in the libel ; that, if liquors were seized 
 and not libelled, the owner must seek his remedy in another suit ; and 
 that, if liquors were libelled and not claimed, the law will dispose of 
 them." Ileld, that the claimant had no cause for complaint. State T. 
 Smith, Liv. 33. 
 
 48. An indictment for being a " common seller of intoxicating liquors," 
 or one for keeping and maintaining a tenement used for the illegal sale 
 and illegal keeping of intoxicating liquors, by one holding a license to 
 sell such liquors under the internal revenue laws of the United States, 
 cannot be removed into the circuit court of the United States, for trial, 
 under U. S. stat. of 1833, c. 57, § 3. State v. Elder, liv. 881. 
 
 49. Nor is either of such indictments within the U. S. stat. of 1864, 
 c. 173, § 50. State v. Elder, lit. 381. 
 
 50. The remote and minute corporate interest which a judge of a po- 
 lice court has in intoxicating liquors forfeited to the city of which he is 
 an inhabitant, does not disqualify him from taking cognizance of cases 
 of libelled liquors seized within such city. State v. Intoxicating Liquors, 
 lit. 564. 
 
 51. The legislature may constitutionally provide that such interest 
 shall not be a legal objection to such judge's jurisdiction. State v. In- 
 toxicating liquors, lit. 564. 
 
 52. By the Pubhc Laws of 1867, c. 130, § 1, a person conTicted of sell- 
 ing intoxicating liquors, in violation of § 7, c. 33, of the Public Laws of 
 1858, shall not only be punished by fine, " but, in addition thereto, shall 
 be imprisoned," &c. Bragdon v. Somerby, lt. 92. 
 
 53. The substantive offense described in the Public Laws of 1858, c. 
 33, § 12, is complete whenever there is a keeping of intoxicating liquors 
 with intent that an unlawful sale thereof shall be made in this State by 
 any person. State v. Kaler, lti. 88. 
 
 See Complaint, 1, 6, 7, 8, 10, 16, 17, 18. 
 Practice, 54. 
 
326 LOGS AND LUMBER, 
 
 in. GENERALLY. 
 
 54. Under the laws of the United States, intoxicating liquors, import- 
 ed, may be sold by the importer, in the original packages, without regard 
 to the State law. State v. Mohinso^i, xlix. 285. 
 
 55. But they cannot be sold, even in the original packages, by any 
 other than the importer. State v. ItoMnson, xlix. 285. 
 
 56. If a person claims the right to sell intoxicating liquors in this 
 State on the ground that he has imported them, the burden of proof is 
 on him to show that he was the importer. State v. Robinson, xlix. 
 
 285. 
 
 57. In a suit upon a promissory note given for intoxicating liquors 
 sold, it appearing from the plaintiff's bond (put in as evidence by the 
 defendant), that it had been approved, as the law required, the recital in 
 it, that the plaintiff had been licensed to sell, is sufficient evidence to 
 warrant the inference of authority to sell, in the absence of any proof to 
 the contrary. Wills v. Grreely, l. 78. 
 
 58. Intoxicating liquors in possession of a warehouseman, but intend- 
 ed by their owner for unlawful sale in this State, when they should reach 
 their destination, are liable to forfeiture. State v. Intoxicating Liquors, 
 L. 506. 
 
 59. And the lien of the warehouseman is no bar to the forfeiture, al- 
 though he has no intention to violate the law. State v. Intoxicating 
 liquors, l. 506. 
 
 60. The payment of the U. S. revenue tax upon intoxicating liquors 
 of domestic manufacture, together with a license from U. S. collector, 
 will not justify the sale of such liquors in this State, in violation of the 
 laws thereof. State v. Delano, liv. 501. 
 
 61. Section 32, c. 33, providing that "whenever an unlawful sale" of 
 intoxicating liquor " is alleged, and a delivery proved, it shall not be 
 necessary to prove a payment, but such delivery shall be sufficient evi- 
 dence of sale," is constitutional. State v. Hurley, iiv. 562. 
 
 LOGS AND LUMBER. 
 
 1. A person having the rightful possession of logs for the purpose of 
 driving them under a contract, has such a qualified interest in the logs, 
 that the timber may be regarded as his, for all purposes connected with 
 the driving, within the meaning of R. S., c. 42, § 6, and sufficient to en- 
 able him to maintain an action against the owners of logs which have 
 become intermixed with the logs he has driven under the contract. 
 Tibbets v. Tibbets, xlvi. 865. 
 
 See CoNTEACT, 47, 51. 
 
 Lien, 12, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 29. ' 
 Tax, IB. 
 Teoveb, 7, 31. 
 
LORD S DAY. 
 
 LORD'S DAY. 
 
 ^27 
 
 1. When a contract is fully executed on the Sabbath, and the prop- 
 erty passes, the sale is valid. Greene v. Godfrey, xliv. 25. 
 
 2. A deed executed on Sunday cannot, for that reason, be avoided by 
 a third person who is a stranger to the transaction, claiming by a subse- 
 quent levy. Greene v. Godfrey, xliv. 25. 
 
 3. The contract by which a horse is let on the Lord's day is void, and 
 a court of law will not enforce it, nor give compensation or damages for 
 a breach of it. Morton V. Gloster, xlvi. 520. 
 
 4. But if the hirer, having completed the distance agreed upon, un- 
 dertakes another and independent journey, not within the terms of the 
 illegal contract, the illegality of the contract furnishes no defense for his 
 subsequent acts. Morton v. Gloster, xlvi. 520. 
 
 5. A. let a horse to B. on the Lord's day, to go three miles ; B. went 
 six miles further, and overdrove the horse so that he died. Held, trover 
 lies for damages. Morton v. Gloster, xlvi. 520. 
 
 6. A note signed and delivered on Sunday, as between the parties, is 
 invalid; but if delivered on any other day, it is valid, though signed on 
 Sunday. Sank of Oumherland v. Mayherry, xlvui. 198. Pope v. lAnn, 
 L. 83. 
 
 7. A note signed and delivered to the payee on Sunday, but bearing 
 date on another day, is valid in the hands of a bona fide holder, without 
 notice. Bank of Cumberland v. Mayberry, xlviii. 198. 
 
 8. It seems, that an accommodation note, made on Sunday and in- 
 dorsed by the payee on Monday, then first becomes a completed con- 
 tract, and is therefore valid. Hank of Cumberland v. Mayberry, XLvin. 
 198. 
 
 9. A receipt for goods attached, signed on Sunday, but not delivered 
 until Monday, is a valid contract. Harris v. Morse, xlix. 432. 
 
 10. A promissory note, given on Sunday, is illegal, as between the par- 
 ties ; and a subsequent promise to pay it, will not make it legal. Pope 
 Y. lAnn, L. 83. 
 
 11. The indorsee of a negotiable note, who procured it to be indorsed 
 by the payee on the Lord's day, cannot maintain an action thereon in 
 his own name against the maker. Benson v. Drake, lv. 555. 
 
 12. The consideration of a note given for an injury done on the Lord's 
 day, to a horse and carriage hired on that day for any purpose other 
 than that of "necessity or charity," is unlawful. Tillock Y.Webb, znri. 
 100. 
 
 13. Where the contract of hire of a horse and carriage on the Lord's 
 day was indefinite as to time, distance, and use, the carrying of a young 
 lady home who had been attending a religious meeting during the day, 
 will not render the contract legal. Tillock v. Webb, lvi. 100. 
 
 See Costs, 15. 
 
328 MAINTENANCE AND CHAMPEKTY. MALICIOUS PBOSECUTION. 
 
 MAIL. 
 
 See CoNTEACT, 15, 16, 32. 
 
 MAINTENANCE AND CHAMPERTY. 
 
 1. If the defendant in a suit at law, at the request of a third person, 
 permits him to assume the defense, upon a promise of such third person 
 to indemnify him and pay all coists recovered against him, such promise 
 cannot be avoided on the ground of maintenance. Goodspeed v. FuUer, 
 XLVI. 141. 
 
 2. The statutes of this State relating to real actions afford the tenant 
 no defense on the ground that the purchase of the demandant's title 
 constituted maintenance or champerty. Hovey v. Sohson, li. 62. 
 
 MALICIOUS PROSECUTION. 
 
 1. In an action to recover damages for malicious prosecution of a civil 
 suit, the malice to be proved is a question of fact, probable cause on facts 
 established, a question of law. Cooper v. Waldron, l. 80. Humphries v. 
 Parker, i.ii. 502. 
 
 2. The presiding judge may either order a nonsuit, or direct a verdict 
 for the defendant, if, in his opinion, the facts admitted, or clearly estab- 
 lished, are not sufficient to prove a want of probable cause, notwith- 
 standing evidence, in defense, has been introduced. Cooper v. Waldron, 
 L. 80. 
 
 3. Where one was arrested on a criminal process, in which he was 
 falsely charged with fraud, for the purpose of coercing him to surrender 
 to the prosecutor certain promissory notes of which each of them was 
 part-owner, — such a prosecution was held to be without probable cause, 
 and, in legal contemplation, malicious. Kimball v. Bates, l. 308. 
 
 4. There is a want of probable cause, when a party institutes a prose- 
 cution without reasonable grounds for believing the person prosecuted 
 to be guilty of the charge. Hwmphries v. Parker, lii. 502. 
 
 5. Reasonable grounds are such as would warrant an impartial and 
 candid man, exercising ordinary care, caution, and discrimination, in be- 
 lieving the accused to be guilty. Humphries v. Parker, lii. 502. 
 
 6. Probable cause does not always depend upon the real and exact 
 facts, but it may depend upon the honest belief of the party prosecuting; 
 but that belief must be honestly entertained, and derived from facts and 
 evidence which in themselves were sufficient to justify a man who was 
 
MANDAMUS AND PROHIBITION. 329 
 
 calm, and not governed by passion, prejudice, or want of ordinary cau- 
 tion and care, in believing the accused to be guilty. Humphries v. 
 Parker, lii. 502. 
 
 7. Malice in fact, as distinguished from malice in law, is essential to 
 the maintenance of an action for malicious prosecution. Humphries v. 
 Pwrker, lii. 502. 
 
 8. Malice in fact may be inferred by the jury from the want of proba- 
 ble cause, or be proved by other circumstantial evidence, like any other 
 fact. Humphries v. Parker, lii. 502. 
 
 9. Under what circumstances a verdict of $1,400, in actions for ma- 
 licious prosecution and slander, is not excessive. Humphries v. Parker, 
 m. 502. 
 
 10. A person, arrested on a special writ, subsequently and for the pur- 
 pose of procuring his discharge, paying under protest a portion of the 
 sum claimed in the writ, is not thereby estopped from showing, in the 
 trial of an action for malicious prosecution, the want of probable cause 
 in the original suit. Morton v. Young, lv. 24. 
 
 See Amendment, 18. 
 
 Maeeied Woman, 25, 26. 
 
 MANDAMUS, AND PEOHIBITION. 
 
 1. If the county commissioners neglect to issue their warrant to the 
 municipal officers of the several towns, &c., of a registry district, to fill 
 a vacancy, mandamus will lie to compel its performance. Bose y. Coun- 
 ty Com,., L, 243. 
 
 2. But, without such warrants, the municipal officers of the towns, 
 &c., cannot legally call meetings to fill such vacancy, and a writ of man- 
 damus will not be issued to the county commissioners, to compare the 
 return of votes, made to tbem, to ascertain who has been chosen, at an 
 election so held. Bose v. County Com., l. 243. 
 
 3. The petition for mandamus, in such a case, must allege affirmatively 
 that a vacancy exists. Bose v. County Com., l. 243. 
 
 4. As no action can be maintained against the State, this court wiU 
 not permit a claim to be enforced circuitously, by mandamus, against 
 the treasurer. Weston v. Dane, li. 461. 
 
 5. By R. S. of 1857, c. 77, §§ 5 and 6, the S. J. court has the general 
 superintendence of all courts of inferior jurisdiction for the prevention 
 and conviction of errors and abuses, where the laws do not expressly 
 provide any remedy. It may issue writs of error, certiorari, manda- 
 mus, prohibition, quo warranto, and all writs and processes necessary 
 for the furtherance of justice, or the execution of the laws. Harriman 
 V. County Com., liii. 83. 
 
 6. Where county commissioners refuse to carry into effect a judgment 
 of the S. J. court, rendered upon the report of a committee appointed 
 m case of appeal from their decision, refusing to lay out and establish a 
 
330 MAKEIAGE. 
 
 highway, this court may issue a ■writ of mandamus on petition by the 
 injured party. HarrimMn v. County Com., Lin. 83. 
 
 7. And where they not only refuse to carry into effect such judgment, 
 but proceed to appoint an agent to open the way laid out by them on 
 the original petition, contrary to the judgment of the S. J. court, a writ 
 of prohibition will be issued, enjoining such proceedings. Harriman y. 
 County Com., Lin. 83. 
 
 8. In this State, if, to an alternative writ of mandamus, the respond- 
 ents return a legally sufficient cause, though false in fact, the court will 
 decline to proceed further. Dane v. Derby, liv. 95. 
 
 9. If the return be falsified in an action on the case, or by criminal 
 information for a false return, the court will then issue a peremptory- 
 writ. Dane v. Derby, liv. 95. 
 
 10. Neither the statute of 9 Ann. c. 20, nor any similar statute has 
 ever been adopted in this State. Dane v. Derby, liv. 95. 
 
 11. The respondent cannot demur to the petition and the writ; but, 
 if the writ be defective or do not contain allegations of all such facts as 
 are necessary to show that the prosecutor is legally entitled to the relief 
 prayed for, it may be quashed on motion, or the defects may be taken 
 advantage of in the return. Dane v. Derby, liv. 95. 
 
 12. If the original return be sufficient, the filing of an additional one, 
 in the nature of a demurrer, will not afiect the sufficiency of the former. 
 Dane v. Derby, liv. 95. 
 
 13. The writ must be executed in the form in which it has been issued, 
 or not at all. Dane v. Derby, liv. 95. 
 
 14. The granting of a writ of mandamus is a matter of discretion, and 
 not of right. Dane v. Derby, liv. 95. 
 
 15. The court will not grant a peremptory writ against municipal offi- 
 cers elected for one year only, ordering a new election, because of the 
 fraudulent voting practiced at the election at which they were declared 
 to be elected, if such officers have returned a sufficient cause to the alter- 
 native writ. Dane v. Derby, liv. 95. 
 
 MAERIAGE. 
 
 1. Where a marriage was valid by the laws of Massachusetts, be- 
 tween persons who were living and were married in the State, — if, after- 
 wards, they beNsarae residents of this State, the marriage will be held 
 valid here. Hiram v. Fierce, xlv. 867. 
 
 2. Thus if a minor maiTy without the consent of his father, the mar- 
 riage is not therefore void, if regularly made according to the common 
 law, although consummated in violation of the specific regulation of the 
 statute of that State, prohibiting persons authorized to solemnize mar- 
 riages, from marrying minors without their parents' consent ; there being 
 no statute of that State declaring such marriages absolutely void. Si- 
 ram V. Fierce, xlv. 367. 
 
MAKEIED WOMAN. 
 
 331 
 
 .3. And if, at the time of marriage, the wife had a former husband 
 living, who, for a period of more than seven years, had entirely deserted 
 her, and had concealed from her his residence, and who, she believed, 
 had long been dead, a marriage under such circumstances is within the 
 exceptions made to the statute of Massacliusetts, declaring void any 
 marriage contracted while either party has a former wife or husband 
 living. Hiram v. Pierce, xlv. 367. 
 
 4. A party contesting the legality of a marriage, because of the alleged 
 insanity of the husband at the time, has no cause for exception to the 
 instruction, that the same degree of mind suflBcient to enable him to en- 
 ter into a valid contract, or to make a valid deed or will, would be suffi- 
 cient to enable him to contract matrimony. Atkinson v. Medford, xlvi. 
 510. 
 
 5. Marriage is not a contract within the meaning of that clause of the 
 constitution prohibiting impairing the obligation of contracts. Adams 
 T. Palmer, li. 480. Adams v. Hodghins, u. 480. Adams v. Schwartz, 
 LI. 480. 
 
 See Abatement, 12, 22. 
 Adultery, 1, 3. 
 Breach Op Promise. 
 Pauper, 5, 6, 7, 13, 14, 56, 57, 58, 60. 
 
 MARRIED WOMAIsr. 
 
 1. By the statute of 1848, the wife may maintain scire facias in her 
 own name, or jointly with her husband. Walker v. Gilman, xlv. 28. 
 
 2. The promissory note of a married woman cannot be legally en- 
 forced. Roach V. Randall, xlv. 438. See 28. 
 
 8. And where she joins with her husband in a note for money loaned 
 to him, and gives a mortgage of her real estate as security therefor, 
 which note is afterwards paid with money obtained upon another note, 
 in which she joined with her husband (to secure which, she gave another 
 mortgage of the same estate), the husband only is entitled to the action 
 provided by statute to recover back from the payee of the first note a 
 sum taken as usurious interest. Roach v. Randall, xlv. 438. 
 
 4. The deed of a married woman of her real estate acquired prior to 
 the enactment of the statute of 1844, is void, if the husband did not join 
 her in the conveyance. Beale v. Knowles, xlv. 479. 
 
 5. Neither the statutes of 1857, nor any former statutes, gave a mar- 
 ried woman power to purchase real estate on credit, and give her own 
 promissory notes in payment, with a mortgage as security. Dunning v. 
 Pike, XLVI. 461, 
 
 6. In such case, the notes and mortgage given by her, and the deed 
 given to her, are void, the whole being one transaction, though the con- 
 veyances were made at difierent times, and the parties are difterent, yet 
 all done in pursuance of a mutual arrangement. Dunning v. Pike, xlvi. 
 461. 
 
MARRIED WOMAN. 
 
 7. Although the recent statutes, relating to the rights of married 
 women, neither authorize them, nor recognize their right to moi'tgage 
 their real estate, yet it was manifestly liot the intention of the legislature 
 thereby to restrict them in the exercise of that right, which existed at 
 common law. Eaton v. Nason, xlvii. 132. 
 
 8. And where the wife, the husband joining in the deed, conveyed her 
 estate in mortgage to secure a debt of her husband, the mortgage was 
 held to be valid. Eaton v. Nason, xlvii. 132. 
 
 9. The general rule of law is, that a married woman cannot make a 
 binding contract, or be the subject of a suit ; but if there has been a deser- 
 tion by the husband, in the ordinary meaning of the term, and it is so 
 complete that he must be regarded as having renounced all his marital 
 rights and relations, such would be an exception to the rule, and she 
 would be treated as a feme sole. Ayer v. Warren, xxvii. 217. 
 
 10. Evidence that the separation was by the mutual consent of the 
 parties, and that provision for a separate maintenance of the wife was 
 made by the husband, tends to prove such a renunciation, but does not 
 render the conclusion inevitable that the husband has renounced all his 
 marital rights. Ayer v. Warren, xlvii. 217. 
 
 11. The rights of the parties, in such a case (on a contract made in 
 1856), are not materially affected by the statutes of this State, giving to 
 married women the power to hold and manage their property, and to 
 enforce remedies in their own names, when it has been taken or injured. 
 Ayer v. Warren, xLvn. 217. 
 
 12. The statutes in force, before the R. S. of 1857 took effect, author- 
 ize a married woman to lease, sell, convey, and dispose of real estate 
 held in her own right, by her separate deed, in her own name, as if she 
 were unmarried. Springer v. Berry, xlvii. 330. 
 
 13. She may hold an estate in trust ; and where a portion of the es- 
 tate is devised to her, and the remainder is held by her as trustee, with 
 power to sell and convey the estate, she may maintain an action in her 
 name alone, for a breach of contract by a purchaser in a sale thereof. 
 Springer v. Berry, xlvii. 330. 
 
 14. The statute of 1848, providing for her appropriate remedies "to en- 
 force and protect her rights," is not to be construed as only intended to 
 furnish sepai-ate remedies for the enforcement and protection of her sep- 
 arate rights in the property itself Springer v. Berry, xlvii. 380. 
 
 15. The general purpose of the several statutes indicates the inten- 
 tion of the legislature to furnish to a married woman in her own name 
 all the remedies which are essential to the enjoyment and use of her 
 property in itself considered, and also such as are applicable to the en- 
 forcement of all such contracts as she is authorized by the statute to 
 make in relation thereto. Springer v. Berry, xlth. 330. 
 
 16. By the provisions of c. 277 of Public Laws of 1852 (R. S., c. 61, 
 § 1), a married woman may execute a deed of mortgage of her separate 
 estate, which will be valid, notwithstanding her promissory notes secured 
 thereby cannot, in law, be enforced against her. Brookings v. White, 
 xLix. 479. Beals v. Cobb, li. 348. 
 
 _ 17. Since the act of 1847 (R. S. of 1857, c. 61, § 1), authorizing a mar- 
 ried woman's whole property exempt from payment of her husband's 
 debts, if his creditor would impeach her title to any property conveyed 
 
MAEEIED WOMAN. 
 
 333 
 
 to her, the burden is on him to prove that i't came to her directly or in- 
 directly, from her husband after coverture, and fraudulently as to cred- 
 itors. Winslow V. Gilbreth, l. 90. 
 
 18. Since c. 227 of the Public Laws of 1852 went into effect, a mar- 
 ried woman has been authoiized to deed directly to her husband. Al- 
 len V. -Hooper, l. 371. 
 
 19. Where the right of redeeming a levy is in the husband, the wife, 
 in the absence of proof, is presumed to occupy the estate levied upon in 
 subordination to the legal title, and not adversely. Allen v. Hooper, l. 
 371. 
 
 20. The sons of a married woman deposited with her notes against 
 her husband, to be used by her during their absence, " in any way she 
 might think proper for her own benefit." Some time afterwards she sur- 
 rendered these notes, together with a note payable to herself, upon re- 
 ceiving a deed of certain real estate, made by her husband to her sons 
 and herself. One of her husband's creditors attached the estate before 
 the sons knew of the conveyance, and afterwards levied thereon. In a 
 suit brought by the wife and sons against the attaching creditor to re- 
 cover the estate. Held, that it was no cause for exception, that the jury 
 were instructed they would be authorized to sustain the conveyance if 
 they should find from the evidence that the sons had constituted their 
 mother the judge of her own necessities, and that she deemed the pur- 
 chase necessary, — provided the transaction on the part of the mother 
 was not done to delay or defraud creditors of her husband, or intended 
 in any way for her husband's benefit. Randall v. Ziwnt, li. 246. 
 
 ^1. Since the statute of 1848, c. 73, authorizing any married woman to 
 commence, prosecute, and defend suits in law and equity, in her own 
 name, and as if she were unmarried, the exception contained in R. S. c. 
 81, § 100, is to be regarded as inoperative so far as regards married 
 women. Brown v. Cousens, li. 301. 
 
 22. It is not necessary, under § 1, c. 61, of R. S., that a husband and 
 wife should, in order to convey her real estate paid for by him, join in 
 the same deed; separate deeds from each, though executed at different 
 times, will convey the title. Strickland v. Bartlett, li. 355. 
 
 23. By R. S. of 1857, c. 61, § 1, where payment was made for property 
 conveyed to a married woman from the property of her husband, or it 
 was conveyed by him to her without a valuable consideration paid there- 
 for, it may be taken as the property of her husband to pay his debts con- 
 tracted before such purchase. Low v. Marco, liii. 45. 
 
 24. This section does not prescribe the manner of taking such prop- 
 erty, but it may be taken by levy, when the title has once been in the 
 husband, and he has conveyed it directly or indirectly to his wife with- 
 out a valuable consideration, in fraud of his creditors ; and by process 
 in equity without a levy, when the husband has never had any legal title, 
 but it has been conveyed to the wife with a resulting trust for his bene- 
 fit ; or by levy and process on equity. But where the husband never 
 had any legal title thereto, the creditor cannot acquire a, legal title by a 
 levy simply. Low v. Marco, liii. 45. 
 
 25. The doctrine of the common law, that a married woman cannot 
 sue alone for malicious prosecution, has not been changed by R. S. of 
 1857, c. 61. LaugMin v. Eaton, liy. 156. 
 
334 MASTER AND SERVANT. 
 
 26. She cannot sue alone in such action, although her husband went, 
 several years since, to California, but is alive, keeps up a correspondence, 
 and frequently sends her funds. LaughMn v. Eaton, liv. 156. 
 
 27. The general power to " manage " their " real or personal estate as 
 if sole," given to married women by R. S., c. 61, § 1, includes that of sub- 
 mitting to arbitration a question of damages for the flowage of their sep- 
 arate lands, and of covenanting to abide the award. Duren v. Getchell, 
 Lv. 241. 
 
 28. Chapter 52 of the Public Laws of 1866, providing that the "con- 
 tracts of any married woman, made for any lawful purpose, shall be valid 
 and binding," is prospective and does not apply to promissory notes 
 made before its enactment. JBryantv.MerriU,jJv.blb. 
 
 MASTER IN CHANCERY. 
 
 See Equity, 42-47, 55, 56, 58, 59. 
 
 MASTER AND SERVANT. 
 
 1. It is the duty of every employer to use all reasonable precautions 
 for the safety of his employees, by providing them with suitable machin- 
 ery, and keeping it in a condition not to endanger their safety, and, by 
 the same reasoning, bridges, passage-ways, or ladders necessary to be used 
 in going to, and returning from labor, should also be kept safe and con- 
 venient by the employer. BuzzeU v. Laconia Man. Go., XLvm. 113. 
 
 2. The master is responsible to the servant for an injury caused by 
 the negligence and want of ordinary care of the forlner, the defect oc- 
 casioning the injury being known to the master, and not to the servant. 
 Buzzell V. Laconia Man. Co., xlvui. 113. 
 
 3. But if the defect was known to the servant, or to both servant and 
 master, and the servant continued in the service, he thereby assumed 
 the risk himself. Buzzell v. Laconia Man. Co., XLvni. 113. 
 
 4. Neither can the servant recover, if his own neglect contributed to 
 the injury. In order to maintain his suit, he must show ordinary care 
 on his part. Buzzell v. Laconia Man. Co., xLvin. 113. Beaulieu v. 
 Portland Co., XLVin. 291. 
 
 6. In a suit for damages to an employee, arising from the neglect of 
 the employer, in the use of defective machinery or tools, the, declaration 
 is bad, if it does not allege that the defect was unknown to the plaintiff 
 as well as known to the defendant, and that it arose from the want of 
 proper care and diligence on the part of the defendant. BuzzeU v. La- 
 conia Man. Co., xLvni. 113. 
 
MERGER. — MILLS. 
 
 335 
 
 6. To enable an employee of a corporation to recover damages for a 
 personal injury received while in their service, the plaintiff must show, 
 negligence on the part of the corporation. JBeaulieu v. Portland Co., 
 xLvui. 291. 
 
 7. If a company exercise ordinary care to employ servants of good 
 habits, and of competent skill and experience, and to furnish them with 
 approved machinery and apparatus, their responsibility to their employ- 
 ees extends no further. They do not guaranty the faithfulness of their 
 servants, whatever relation of subordination they sustain, in carrying on 
 the business, or keeping the works in such repair as to be always safe. 
 JBeaulieu v. Portland Co., xlviii. 291. 
 
 8. A city is not liable far a personal injuiy sustained by one while 
 aiding, at their request made in accordance with a city ordinance, its 
 police officers, in arresting violent disturbers of the public peace. Cobb 
 V. Portland, lv. 381. 
 
 See Assumpsit, 29, 30. 
 Town, 9. 
 
 MERGER. 
 
 A conspiracy to commit a higher offense merges in that offense, if 
 committed ; but in case of a conspiracy to commit a crime of the same 
 grade, there is no merger. State v. Mayberry, xLvni. 218. 
 See Conspiracy, 9. 
 Judgment, 28. 
 
 MESNE PROFITS. 
 See Real Action. 
 
 MILLS. 
 
 I. EIGHTS AND LIABILITIES OP THE DIEFEEENT PARTIES, 
 n. FLOWAGE, AJjfD COMPLAINTS THEREFOR. 
 nL DAMAGES. 
 
 L EIGHTS AND LIABILITIES OF THE DIFFERENT PARTIES. 
 
 1. The owner of a mill privilege has no right to raise a head of water 
 so high as to injure the operations of an older mill above the dam, or to 
 obstruct the public use of the river, as a stream navigable for boats, rafts, 
 and lumber. Dwind v. Veazie, xlit. 167. 
 
336 MILLS. 
 
 2. Every mill-owner has a right to the use -of the water above and be- 
 low his mill, so far as such use is reasonable and conformable to the 
 usages and wants of the community. Dwinel v. Veazie, xliv. 167. 
 Clark V. Rockland W. P. Co., lii. 68. 
 
 3. Where one without right has diverted water from the mill of 
 another so as to diminish its power of performance to the extent of its 
 capacity, he will be liable in damages therefor, and he cannot excuse him- 
 self by the fact that the owner of the mill has, by entirely independent 
 acts, caused a loss to himself. Stichney v. Munroe, xliv. 195. 
 
 4. At common law, the mill-owner was not authorized to build and 
 maintain his dam, in such a manner as to flow the land of proprietors 
 above his mill, on the same stream. And a Continuance of his dam, to 
 their injury, would be deemed a nuisance. Strout v. Millbridge Go., 
 XLV. 76. 
 
 5. An action may be maintained, and nominal damages recovered, for 
 the wrongful diversion of water from a mill, although no actual injury be 
 sustained. Munroe v. SticJcney, xltiii. 462. 
 
 6. Where the proprietor of a mill, and of a definite proportion of the 
 water-power or flow of water in a stream, makes a change in a sluice- 
 way which occasions an increase of back water injurious to the mill of a 
 neighboring owner, who is also part-owner of the water-power, the lat- 
 ter may maintain an action therefor. Munroe v. Gates, xlviii. 463, 
 
 7. But if the mill injured by the change is under lease, at the time of 
 the injury complained of, and the rent not dependent on the result of the 
 suit, only nominal damages will be awarded. Monroe v. Gates, XLvm. 
 463. 
 
 8. When there were several mill privileges originally owned together, 
 but afterwards, for a long series of years, occupied by different persons in 
 severalty, and from time to time transferred from one to another by deed, 
 levy, or descent, the court is authorized to infer an ancient partition 
 amongst the several proprietors, and a division of the water privilege 
 into proportionate parts, as it has been used and occupied, excepting so 
 much as may have been parted with by common consent. Monroe v. 
 Gates, xlviii. 463. 
 
 9. A. had a mill on C. stream. B. built a mill below, on M. stream 
 into which C. stream flows, and, to secure a supply of water, erected a 
 reservoir dam on C. stream above A.'s mill. In an action by A. to re- 
 cover damages of B. for detention of water from his mill, evidence as to 
 the effect of the reservoir dam upon the operation of the mills below A.'s, 
 or whether, by reason, in whole or in part, of the erection of said dam, 
 the mills below were enabled to run a longer part of the year than before 
 the dam was erected, is inadmissible. Woodbury v. Willis, l. 403. 
 
 10. Where, in such case, it appears that A.'s mill was leased for a cer- 
 tain portion of the time covered by the suit, this will not prevent his re- 
 covering damages for that part of the time, unless it is shown that the 
 dam caused no injury to his reversion. Woodbury v. Willis, l. 403. 
 
 11. Where mill occupants above cast their slabs, edgings, and other 
 waste into a stream, to sink or float, without direction or control on their 
 part, which injuriously, affects the use of the stream by occupants below, 
 an action for the damages can be maintained therefor. Veazie v. Ifwi- 
 nel, L. 479. Dwinel v. Veazie, l. 479. 
 
MILLS. 
 
 337 
 
 12. The owner of a mill-dam on a stream floatable for boats, rafts, or 
 logs, is bound to provide a suitable, safe, and convenient passage through 
 or by his dam, for rafts, logs, and other lumber. Veazie v. Dwinel, l. 
 479. JRarks v. Morse, lii. 260. Lancey v. Clifford, liv. 487. 
 
 13. No prescriptive right to continue the practice of casting slabs, &c., 
 into a stream, &c., can be obtained in a stream or channel, provided for 
 rafting boards, and running logs and lumber. Veazie v. Dwinel, l. 479. 
 
 14. The owner of a mill upon a navigable stream is bound to exercise 
 his rights in such manner as not to interfere unreasonably with the 
 rights of the public in the use of the stream. Parks v. Morse, lii. 260. 
 Lancey v. Clifford, liv. 487. 
 
 15. Such owner will be liable to an action by any citizen whose rea- 
 sonable use of such stream, to float logs to market, he has prevented. 
 Parks v. Morse, lii. 260. 
 
 16. At common law, riparian proprietors on a stream are entitled to 
 the natural flow of the water of the stream, without diminution or ob- 
 struction, except so far as other parties thereon may have obtained par- 
 amount rights to control such flow by grant and prescription. Clark v. 
 Rockland W. P. Co., lii. 68. Lancey v. Clifford, lit. 487. 
 
 17. Under the mill act, riparian proprietors, who are owners of mill- 
 sites, may raise a head of water, by the construction of dams, on their 
 own lands, across streams not navigable, for the purpose of working their 
 mills, subject only to the prior and paramount rights of other proprie- 
 tors. Clark V. Rockland W. P- Co., lii. 68. Lancey v. Clifford, lit. 
 487. 
 
 18. And the head of water thus raised, may be detained a reasonable 
 time for the beneficial use of such mills ; but the flow cannot be perma- 
 nently obstructed, nor the water diverted by such dams, to the injury of 
 the lower proprietor, nor can it be used capriciously to their injury. 
 Clark V. Rockland W. P. Co., lii. 68. Lancey v. Clifford, lit. 487. 
 
 19. Past and future damages, occasioned by the flowing of land for 
 mill purposes, may be satisfied by the payment of a gross sum accompa- 
 nied by a parol agreement to that efiect. But such an adjustment is 
 good only between the original parties. Snoio v. Moses, liil 546. 
 
 20. A saw-mill, owned by the plaintiff and the defendant's grantor, as 
 tenants in common, was destroyed by fire. Subsequently, the latter 
 called a meeting of the owners, and proceeded to rebuild under R. S., of 
 1841, c. 86, when he conveyed to the defendants by deed of warranty, 
 containing the following, — " meaning hereby to convey one-half of the 
 saw-mill privilege and all the mill, subject to the claims of" the plaintiff, 
 " in said mill, and reserve to myself all my claims and right of actions 
 against " the plaintiflF, &c. Seld, (1) That the defendant's grantor ac- 
 quired no title under the mill act to the half of the mill of which the 
 plaintiff had a deed; (2) That the proceedings under the mill act, could 
 at most, give him a lien to be "reimbursed and paid such sums, as he 
 had advanced thereon;" (3) That the deed did not give his grantees a 
 lien on the premises ; and (4) That the separation of the claim from the 
 security, was a dissolution of the lien. Moore v. Gibson, lhi. 551. 
 
 21. The defendants caused an unnatural accumulation of water in a 
 reservoir above the mill-pond where the plaintifi" and defendants draw 
 the water to propel their respective mills, and subsequently let it pass 
 
 22 
 
338 MILLS. 
 
 into its ordinary channel over the plaintiff's flume. Held^ that if the 
 water was rightfully accumulated, the defendants must exercise ordi- 
 nary care in letting it out ; but if it was retained without legal author- 
 ity as to the plaintiff, they let it out at their peril. Frye v. Moor, iin. 
 583. 
 
 22. If the plaintiff's flume was sufficient to withstand the pressure of 
 the natural freshets, it will be no defense that the flow caused by the 
 defendants did not exceed in magnitude some of the accumulations of 
 water arising from natural causes. Frye v. Moor, liii. 583. 
 
 23. Ill case, for delaying the plaintiff's timber in consequence of a 
 dam erected over a floatable but innavigable stream, proof that the place 
 was suitable for a mill-site, has been used as such for many years; that 
 the dam was built for the purpose of raising water for working water- 
 mills, and that, when the dam was built, a suitable sluice-way was con- 
 structed in a suitable place, and kept in proper condition, during the 
 time embraced in the plaintiff's declaration, will constitute a valid de- 
 fense. Lancey v. Clifford, lit. 487. 
 
 24. It is not necessary that the erection of the mill precede the con- 
 struction of the dam ; but, if the latter was built at a suitable place and 
 for the purpose of raising the water to propel a mill to be subsequently 
 erected there, it is sufficient. Lancey v. Clifford, lit. 487. 
 
 25. As between proprietors of dams on the same stream, he has the 
 better right who was first in point of time. Lincoln v. Chadbourne, 
 LVL 197. 
 
 26. In the trial of an action of trespass on the case, brought by the 
 owner of the middle one of three dams on the same stream against the 
 owner of the lowest, subsequently erected, for damages caused by flow- 
 ing the wheels of the former, — it is not competent for the defendant, ex- 
 cept so far as it might affect the question of abandonment, to prove that 
 the plaintiff's dam caused the water to flow back and injure the oldest 
 and uppermost dam and the mills thereon ; and that the proprietor of 
 the last-mentioned dam abated the plaintiff's dam as a nuisance, at the 
 time the defendant erected his dam. Lincoln v. Chadbourne, lvi. 197. 
 
 27. Unless the plaintiff abandoned his site, the temporary destruction 
 of his dam would not enable the defendant to acquire, as against the 
 plaintiff, the right of a prior occupant. Lincoln v. Chadbourne, lvi. 
 197. 
 
 See Agency, 19. 
 Covenant, 1. 
 Execution, 26, 27. 
 Nuisance, 819. 
 
 n. PLOWAGE, AND COMPLAINTS THEEEFOE. 
 
 28. Upon trial of a complaint for flowing lands, where the issue in- 
 volves the title to the premises, a judgment will be conclusive between 
 the parties and the privies to the estate, and a title acquired after the 
 commencement of the suit, cannot be introduced to defeat the claim of 
 the demandant. Chick v. JRolUns, xliv. 104. 
 
 29. Neither can such title be available in defense, as showing a want 
 of title in the complainants, when the parties are privies to a former 
 
MILLS. 339 
 
 judgment, and who had acquired no superior title prior to the commence- 
 ment of the process. Chick v. JRollins, xliv. 104. 
 
 30. The owners of a dam erected across a navigable river, which 
 caused the land above to be flowed, are not liable to a complaint for 
 flowage, by the owner of such land, under R. S. of 1841, o. 126. Strout 
 V. Millbrikge Co., xlt. 76. 
 
 31. In the trial of a complaint for flowage, to establish a prescriptive 
 right of the mill-owner to flow, it must appear that he and his grantors 
 have been accustomed to flow the land, without interruption, for twenty 
 
 . years or more, prior to the date of the complaint, thereby causing, dur- 
 ing that period, actual damage. Gleason v. TuUle, xlvi. 288. 
 
 32. A voluntary omission to flow in such a manner as to occasion an- 
 nual damage, when such omission is accompanied by no acts indicative 
 of an intention to resume the right, will afibrd no evidence of a contin- 
 ued adverse claim to exercise such right. Gleason v. TuUle, xlvi. 288. 
 
 83. In a complaint for flowage, all the owners of the dam complained 
 of should be joined in the process, and all the co-tenants of the land 
 alleged to be flowed should join in the complaint. Moor v. Shaw, xlvii. 
 88. 
 
 34. The complaint for flowage is not an action at law, but sui generis, 
 resembling a process in equity ; and if all the owners of the dam are not 
 joined, the process should not abate, but the complaint be amended, and 
 the other owners summoned in. Moor v. Shaw, xltii. 88. 
 
 35. Under a complaint for flowage, where commissioners have been 
 appointed, as provided by R. S., c. 92, § 9, it will be a valid objection to 
 the acceptance of their report, that it does not thereby appear that the 
 parties were heard or notified to appear. Coleman v. Andrews, XLvni. 
 562. 
 
 36. If, in fact, the parties were notified, the report should be recom- 
 mitted for correction ; if not notified, that they may be, and have an 
 opportunity to be heard. Coleman v. Andrews, xlviii. 562. 
 
 37. Objections to the acceptance of the report, for defects in the com- 
 plaint, cannot avail, as they should be taken advantage of before default. 
 Coleman v. Andrews, xltiii. 562. 
 
 38. The judgment upon a complaint for flowage in regai-d to future 
 compensation, is not conclusive upon the parties except for the time em-* 
 braced in it, and for one year thereafterwards. Billings v. Berry, l. 31. 
 
 39. The notice, preliminary to bringing a second complaint, may be 
 given at the end of a year after the expiration of the time embraced in 
 the judgment upon the first complaint, although it is less than a year 
 after the rendition of such judgment. Billings v. Berry, l. 31. 
 
 40. The law does not require referees, whom the parties have agreed 
 upon, to be sworn, notwithstanding the agreement to refer confers upon 
 them the powers of commissioners, who by law must act and determine 
 on their oaths. Bradstreet v. Ershine, l. 407. 
 
 41. On trial upon a complaint for flowage, the complainant produced 
 a quitclaim deed of the land flowed, without evidence of an entry or pos- 
 session by him, actual oi* constructive. Held, that a nonsuit was errone- 
 ously ordered, the complainant having made out a -prima facie case of 
 ownership. Williamson v. Carlton, li. 449. 
 
340 MILLS. 
 
 42. The defendants' mill-dam, erected in 1796, was repaired in 1831, 
 and rebuilt with stone in 1839. In 1841, the plaintiff demanded dam- 
 ages for past and future flowage, and the parties submitted the demand 
 to referees, who were to determine the yearly " damage ... for the term of 
 ten years and no longer," their report to be binding for that terra. The 
 referees determined that the plaintiff recover $10 for damages which oc- 
 curred prior to January, 1841, and $5 annually for ten years, unless 
 the defendants should sooner dispose of or lower their dam. The 
 award was entered in the district court, and judgment rendered there- 
 on. The defendants paid the damages in accordance with the award. In 
 the trial of a complaint forflowage, commenced in 1865, the defendants 
 pleaded in bar a prescriptive right to flow without paying damages. Held, 
 that the judgment upon the award devested the defendants of any pre- 
 scriptive right they may have acquired prior thereto to flow the plain- 
 tiff's land. Hersey v. Packard, lti. 395. 
 
 See Abatement, 26. 
 
 nr. DAMAGES. 
 
 43. A judgment upon a complaint for flowage, on an order of the law 
 court, certified to the clerk in vacation, can properly embrace only the 
 sum due on the last day of the preceding term, although another yearly 
 payment is due before the certificate is received. Billings v. Berry, l. 
 31. 
 
 44. The damages accruing after the complaint is filed, must be assessed 
 in yeaily sums, reckoning from the date of filing the complaint ; and the 
 judgment should embrace all the yearly payments that have become due 
 when it is rendered. Billings v. Berry, l. 31. 
 
 45. The damages for three years may be assessed in one aggregate 
 sum. Bradstreet v. Mrshine, l. 407. 
 
 46. Execution may issue for damages to the time of the finding of the 
 verdict; and, when the case has been referred, to the time of making the 
 award. Bradstreet v. Erskine, l. 407. 
 
 See Aebitkation, 6. 
 
 MINISTERIAL AND SCHOOL FUND. 
 See Bills, &c., 168, 
 
MITTIMUS. MISTAKE. MONEY. 
 
 MITTIMUS. 
 
 341 
 
 1. When a person accused of a crime is ordered by a court of prelim- 
 inary jurisdiction to recognize for his appearance at the proper tribunal 
 for trial, and neglects to do so, the mittimus is sufficient if it states that 
 he was "convicted" and ordered to recognize, instead of stating that it 
 appeared that an offense had been committed, and that there was proba- 
 ble cause to believe the accused to be guilty. Nason v. Staples, xLVin. 
 123. 
 
 2. In committing a boy to the reform school, the magistrate must cer- 
 tify in the mittimus the town in which the boy resides, if known, which 
 certificate shall be sufficient evidence in the first instance to charge the 
 town. But the omission of the justice to certify the fact, will not defeat 
 the right to recover, but the fact of residence may be proved aliunde. 
 Scammon v. Wells, l. 584. 
 
 See Action, 12. 
 
 MISTAKE. 
 
 A party, who, under a mistake as to the law, but with a full knowledge 
 of all the material facts, has voluntarily paid a claim asserted agiinst him 
 in good faith, cannot, in a suit at law, recover back the money thus paid. 
 lAvermore v. Peru, lv. 469. 
 
 See Deed, 24. 
 
 Equity, 169-172. 
 Peacticb, 58. 
 
 MONET. 
 
 1. For the protection and encouragement of trade and commerce, a 
 different rule has been established, in relation to money belonging to one 
 person and wrongfully, or even feloniously taken from him and paid to 
 another, without his knowledge or consent, thaii that which applies to 
 other kinds of personal estate. Gammon v. Butler, xlviii. 344. Dwi- 
 nel V. Sawyer, liii. 24. 
 
 2. Lawful money cannot be held derelict in the hands of a deputy- 
 sheriff into whose possession it came by virtue of a search-warrant. Nor- 
 ton V. Nye, Lvi. 211. 
 
 See Agency, 31. 
 
 Attachment, 15, 16, 18. 
 
342 MORTGAGE. 
 
 MORTGAGE. 
 
 I. WHAT CONSTITUTES A VALID MORTGAGE. 
 
 II. EIGHTS AND INTEREST OF THE PARTIES, 
 
 ni. TRAN SPER OF RIGHTS IN MORTGAGED ESTATES. 
 
 IV. DISCHARGE AND EXTINGUISHMENT OF A MORTGAGE. 
 
 V. REDEMPTION. 
 
 VI. FORECLOSURE. 
 
 VII. ACTIONS OF LAW, AND JUDGMENTS THEREON. 
 
 Vin. MORTGAGE OF CHATTELS. 
 
 L WHAT CONSTITUTES A VALID MORTGAGE. 
 
 1. It is not necessary, in order to constitute a mortgage, that there 
 should be any collateral or personal security for the debt secured there- 
 by. Mitchell V. Burnham, xliv. 286. Broohings v. White, xlix. 479. 
 
 2. A mortgage to secure an existing debt, and also advances to be 
 made subsequently, is valid. Qoogins v. Oilmore, xltii. 9. 
 
 3. By R. S. of 1841, e. 125, § 1, an absolute conveyance "with a sep- 
 arate instrument of defeasance of the same date, and executed at the 
 same time, shall constitute a mortgage." Tomlinson v. Monmouth M. 
 F. Ins. Co., XLVii. 232. Smith v. Monmouth M- F. Ins. Co., l. 96. 
 Brown v. Holyoke, liii. 9. Warren v. Bovis, liii. 463. 
 
 4. But a deed, purporting to be absolute, though intended to be de- 
 feasible by bond or any other instrument of defeasance, will not be de- 
 feated as against any person other than the maker thereof, his heirs or 
 devisees, unless the instrument of defeasance shall be duly recorded. 
 Tomlinson v. Monmouth M. F. Ins. Go., xlvii. 232. Smith v. Mon- 
 mouth M. F. Ins. Co., L. 96. Bailey v. Myrick, l. 171. Warren v. 
 Bovis, LIII. 463. 
 
 5. And the instrument of defeasance must be of as high a nature as the 
 deed. Warren v. Bovis, liii. 463. 
 
 6. A deed containing a proviso without the usual concluding words 
 "then this deed shall be null and void," or their equivalents, is inopera- 
 tive as a mortgage. Adams v. Stevens, xlix. 362. Goddard v. Goe, lv. 
 385. 
 
 7. A bond of defeasance is seasonably recorded if done before it is in- 
 .trpduced in evidence, and before any change of title has taken place, or 
 Jhe right of any third party has attached. Smith v. Monmouth M. F. 
 Ins. Go., L. 96. 
 
 8. Such a case is distinguishable from Tomlinson v. Monmouth M. 
 F. Ins. Go., XLVII. 232. 
 
 9. The assignment of a bond of defeasance as well as that of a mort- 
 gage must be recorded, or it will not affect the rights of third parties 
 having no actual knowledge of it. Bailey v. Myrick, l. 171. 
 
 10. A mortgage, given by a director of a bank to secure the perform- 
 ance of a bond given by such director to one signing as surety on the 
 
MOETGAGE. 
 
 343 
 
 cashier's bond to save the obligor harmless, is void. Jose v. Hewett, l. 
 248. 
 
 11. A railroad corporation made a contract with M. for the construc- 
 tion of their road, and gave him a conveyance of their property contain- 
 ing the following conditions and provisions. " Provided, nevertheless, 
 that if said corporation or their agents or assigns, pay to the said M. or 
 his assigns, who shall become the holder or holders thereof, the amounts 
 specified in the several bonds and coupons for interest pertaining thereto, 
 that shall be issued concurrently with these presents, and such also_ as 
 shall hereafter be issued by the directors of said corporation, according 
 to and to satisfy the terras of the contract existing between said corpor- 
 ation and said M., bearing date, &c., for the construction and equipment 
 of said railroad, as by reference to said contract and the records of said 
 company will fully appear; each of said bonds being numbered consecu- 
 tively, from one to the sum total thereof, requisite for the completion of 
 said road, according to said contract, and each being issued only by the 
 previous specific vote thereof of the said directors, at their meeting duly 
 notified; and if said payments shall be made,-as the same shall respec- 
 tively become due, according to the terms of said bonds and coupons ; 
 and if said contract shall also be fully performed by said corporation, in 
 all other respects, then this deed shall be null and void thereafter, other- 
 wise the same shall remain good and in full force. And it is further pro- 
 vided and a condition of this deed, that the possession and uses of said 
 premises shall at all times remain in the said grantors, so long as payment 
 shall be made promptly and in good faith by said grantors, of said sev- 
 eral bonds and of the coupons pertaining thereto as the same shall be- 
 come due or payable, but upon failure thereof for the term of sixty days, 
 the holder of said bonds or of any one or more thereof, shall be and 
 hereby is authorized and empowered to take full and complete posses- 
 sion of said premises and mortgaged property, personal and real, rights 
 of way and corporate franchise, without hinderance or process of law, for 
 the common and joint benefit and the use of the holders of all the bonds 
 so previously issued, and whether payment then be due or not, and in sat- 
 isfaction thereof, and such holders shall share and share alike in the dis- 
 position and sale of the same for that purpose by public vendue, on rea- 
 sonable public notice given thereof, to the grantors aforesaid, first de- 
 ducting from such proceeds all costs and expenses incident to such pos- 
 session and sale." Held, (1) That the conveyance was not a deed in 
 trust, but a mortgage ; (2) That after a transfer by M. of any bonds of 
 the corporation, he held the legal title as mortgagee for his remaining 
 interest, and in trust for the other bondholders ; (3) That the contract 
 was secured by the mortgage ; (4) That the bonds have priority in pay- 
 ment from the avails of the mortgaged property, over the contract; (5) 
 That the conveyance contains no valid power of sale of the mortgaged 
 property; (6) That a sale by the mortgagee of all his "right, title, and 
 interest "in the mortgage, and a judgment recovered by him against the 
 corporation, for non-fulfillment of the contract, is an assignment of the 
 mortgage ; and the assignees hold the estate in the same manner as he 
 held it ; (7) That subsequent conveyances by the railroad corporation 
 cannot aifect_ the rights acquired by virtue of the mortgage; (8) That 
 the court will not determine what particular bonds are secured by 
 the mortgage, until the coming in of the report of the master, to whom 
 the case will be sent for that purpose ; (9) That bonds, not " issued by 
 the previous specific vote of the directors," but afterwards ratified and 
 
344 MORTGAGE. 
 
 approved by the corporation, and received by M. and applied in accord- 
 ance with the terms of the contract, are secured by the mortgage; (10) 
 That the claim of an indorser of company notes, the avails of which were 
 applied in part-payment of the contract, is not secured by the mortgage; 
 (11) That one bondholder may maintain a bill in equity to enforce pay- 
 ment of the bonds, in his own name, but for the benefit of himself and all 
 other bondholders; (12) But that, in such a case, the court cannot prop- 
 erly examine and determine the rights of one claiming an interest in the 
 judgment on the contract, as equitable assignee, or as having an equita- 
 ble lien upon it. Mason v. York db Cumberland It. B. Co., lii. ?2. 
 
 12. By a sealed instrument, signed by both parties, the plaintiff con- 
 veyed to the defendants' testate, certain timber as security for the for- 
 mer's indebtedness to the latter, and stipulated that, if the plaintiff paid 
 such indebtedness according to its terms, the defendants' testate would 
 "transfer" said timber and "whatever proceeds thereof" he might 
 thereafter receive to the plaintiff, discharged of all claims; that, if the 
 indebtedness was not paid as stipulated, the defendants' testate might 
 "sell and dispose of so much of said timber as shall pay and reinibiuse 
 him ; " that, when paid by a sale of a portion of the timber, the defend- 
 ants' testate was to "transfer to the plaintiff all the timber undisposed 
 of, free from all claims." In trover for selling more of the timber than 
 ■was necessary to discharge the plaintiff's indebtedness. Held, (1) That 
 the contract was not a mortgage; (2) That trover would not lie; (3) 
 That an action on the contract is the proper remedy. Goddard v. Coe, 
 LT. 385. 
 
 13. A railroad company, pursuant to votes of their stockholders and 
 directors, conveyed all their property and franchises to three trustees 
 and their survivors and successors, by deed conditioned to be void upon 
 payment of certain bonds issued by the corporation. It was stipulated 
 in the deed that, if the company shall at any time fail to pay the inter- 
 est or principal of the bonds according to their tenor, the mortgagees 
 may take the mortgaged property into their actual possession, nian.ige 
 and control the same, and apply the net income and proceeds thereof to 
 the payment of such interest and principal. Held, on demurrer, that the 
 mortgage having been ratified by the statute is valid. Shepley v. At- 
 lantic t6 St. L. B. a. Co., Lv. 395. 
 
 II. EIGHTS AND INTERESTS OF THE PAETIES. 
 
 14. Where a tenant holds under a sale of the right in equity of re- 
 demption, he will not be ousted by one who has not the record title to 
 such redemption, although he may have previously paid the mortgage. 
 Wilson V. Soper, xliv. 118. 
 
 15. Mortgagees, when their mortgage is foreclosed, hold the estate in 
 common. Pearce v. Savage, xlv. 90. 
 
 16. If the debt secured by mortgage has not been paid, the mortga- 
 gee has the right to the possession. Pratt v. Skolfield, xlv. 386. Eich- 
 ardson v. Skolfield, xlt. 386. 
 
 17. If the value of the property mortgaged and foreclosed, be not 
 equal to the sum due on the notes secured by the mortgage, the holder 
 has a claim on the maker and indorser of the notes for the balance. 
 Marston v. Marston, xlv. 412. 
 
MORTGAGE. 
 
 345 
 
 18. A mortgage is pro tanto a purchase ; and the bona fide mortgagee 
 or assignee of the mortgage, without notice of a prior claim, is entitled 
 to the same protection as a bona fide grantee without notice. Fierce v., 
 JFaunce, xlvii. 507. 
 
 19. Prior to \i. S. of 1841, a mortgage of land of which the mortga- 
 ger was at the time disseised, or an assignment of a mortgage of lands 
 of which the assignor was at the time disseised, conveyed no title what- 
 ever. Williams v. Buher, xlix. 427. 
 
 20. And althongh the mortgagee and assignee should afterwards ac- 
 quire possession, it would give no effect to his deed. Williams v. Buker. 
 XLIX. 427. 
 
 21. The relation held by a mortgagee does not in itself make him re- 
 sponsible for permanent improvements or essential additions made to 
 the estate by the mortgager, or enable a party furnishing work or mate- 
 rials therefor to maintain an action against the former, witliout proof of 
 anv further fact than is disclosed by the mortgage. Holmes v. Morse, 
 L. 102. 
 
 22. Payment of the debt, secured by a mortgage of real estate, before 
 condition broken, revests the title in the mortgager ; but not so if made 
 after breach of condition. Stewart v. Crosby, l. 130. JDyer v. Tooth- 
 aher, li. 380. (See Pub. Laws of 1870, o. 142.) 
 
 23. Where husband and wife, who, having long occupied a farm, con- 
 veyed it to their son, taking back a mortgage, conditioned for their sup- 
 port, but omitted to have the mortgage recorded; and the mortgagees 
 still remained on the premises, they and their son constituting one fam- 
 ily, and all contributing to its support; and, some years after the giving 
 of the first mortgage, the son gave a second, to a third person, which 
 was duly recorded. Held, that second mortgagee should, under the cir- 
 cumstances, be regarded as having had notice of the legal title of the 
 former mortgagees, at the time of the conveyance to him. Boggs v. 
 Anderson, l. 161. Anderson v. Boggs, l. 161. 
 
 24. A., the owner of the right of redemption of certain lands of which 
 B. held a mortgage, conveyed the land to C, taking back a mortgage to 
 secure the ])urchase-money. The mortgage was recorded, but the deed 
 was not. Afterwards U. took an assignment of the latter moi-tgage ; 
 but in the mean time, M., a creditor of A., attached A.'s right of redemp- 
 tion, seized and sold it, and the purchaser's title became perfected by 
 lapse of time. U. not knowing of M.'s attachment and sale, and with- 
 out consulting the records, tendered to B. the amount due on his mort- 
 gage, which B. accepted and discharged the mortgage. Held, that the 
 fact that U. was ignorant that A.'s deed to C. was unrecorded, will not 
 avail him ; and that B. was not bound to know that U. was not aware 
 of the prior attachment, nor to inform him thereof without being in- 
 quired of respecting if Wilson v. Barker, l. 447. 
 
 25. Where A., the owner of land, conveyed it to B. in mortgage, with 
 the usual covenants of warranty, and afterwards paid the amount due on 
 a piior outstanding mortgage of the same land, and took an assignment 
 thereof to himself, the tiile thus acquired by A., unexplained, would enure 
 to the benefit of B. Kelley v. Jenness, l. 455. 
 
 26. But if the prior mortgage was in fact purchased, and the consider- 
 ation paid by 0., aud the raoitgaga, immediately after its assignment to 
 
346 MORTGAGE. 
 
 A., was by him, pursuant to a previous arrangement, assigned to C, or 
 assigned in blanlt, and delivered to C, with power to fill the blank, the 
 •assignment to A. was clearly for the use of C., and an implied resulting 
 trust in favor of C. at once attached to the conveyance tnade by the 
 former mortgagee to A. Kdley v. Jenness, l. 455. 
 
 27. But if a part only of the money was paid on the mortgage by A., 
 and a part by C., the implied trust in favor of C. will extend no further 
 than the amount paid by him. Melley v. Jenness, l. 455. 
 
 28. E. H. purchased a parcel of land which was conveyed to his wife, 
 .and joined with her in a mortgage back to secure a part of the purchase- 
 money. He erected a dwelling-house and other buildings on the land, 
 intended as a gift to his wife, with no design to defraud his creditors. 
 Subsequently, he became insolvent, and one of his creditors attached, 
 seized, and sold the buildings as his personal property. In trover by the 
 purchaser against the tenant in possession claiming as grantee of E. H. 
 and wife, Held, that the defendant in possession, having the equity of 
 redemption, represents the title of the mortgager, and, like the mort- 
 gagee, would be liable to the mortgager, in trespass, if he had removed 
 the buildings. Humphreys v. Newman, li. 40. 
 
 29. Mortgagees are not entitled to the rents and profits of the estate 
 received by the mortgager, while in possession. Noyes v. Hich, lu. 115. 
 
 30. The receiver, appointed in a suit in equity to foreclose a mortgage 
 of a railroad, cannot maintain a suit to recover earnings of the road ec- 
 cruing before his appointment. Noyes v. JRich, lii. 115. 
 
 31. The possession of a mortgager must be presumed to be in subor- 
 dination to the title of the mortgagee until the contrary is shown. Con- 
 ner V. Whitmore, lii. 185. 
 
 32. The assignee of a mortgage cannot discharge it after having given 
 a quitclaim deed of the same premises. Conner v. Whitmore, lii. 185. 
 
 33. A mortgager cannot maintain ejectment against a mortgagee in 
 possession. Conner v. Whitmore, lh. 185. 
 
 34. If a judgment creditor extend his execution on a portion of the 
 land mortgaged to secure the same debt, and the debtor neglect to re- 
 deem for the space of one year thereafter, so much of the estate as is cov- 
 ered by the levy is absolute in the creditor, notwithstanding the mort- 
 gage. Crooker v. Frazier, lii. 405. 
 
 35. The condition in a mortgage of real estate provided, "that, if 
 the said " mortgager, " his heirs, executors, or administrators, shall pay to 
 the said " mortgagees, ..." the sura of $2500, or shall well and truly sup- 
 port the said " mortgagees, " and the survivor of them during their natural 
 lives" in the manner specified, "then the mortgage shall be void, other- 
 wise shall remain in full force." On demurrer to a bill in equity, brought 
 by the assignee of the mortgager against the assignees of the mortgagees, 
 Held, (1) That the condition was in the alternative, and that the mortgager 
 had his election ; (2) That the election once made could not be revoked ; 
 (3) That, having elected the latter alternative, the mortgager was entitled 
 to possession in order that he might comply therewith ; (4) That the ser- 
 vices to be performed were owed by the mortgager personally and to the 
 mortgagees alone; (5) That the mortgager could not assign his interest to 
 a stranger, and enable him to discharge the former's obligation, without 
 the mortgagees' consent, and that the mortgagees could not assign their 
 interest until after a breach. Bryant v. Erskine, lv. 153. 
 
MORTGAGE. 
 
 347 
 
 36. The purchaser of sturapage from a mortgager in possession is 
 liable therefor to the mortgager, when the rights of the mortgagee to 
 the timber severed have been waived or extinguished. Kimball v. Lew- 
 iston Steam Mill Co., it. 494. 
 
 37. When the .mortgagee, as the agent and at the request of the mort- 
 gager, undertakes to collect the pay for such stumpage, he thereby rati- 
 fies the act of the mortgager in disposing of the timber, and waives his 
 own right to pursue it as mortgagee of the land on which it grew. Kim- 
 ball V. Lewiston Steam Mill Co., lv. 494. 
 
 ;88. When t^e mortgagee has received the full amount of the niort- 
 gage debt, and assigned the mortgage, making no mention of any right 
 of action on account of what had been previously severed from the real- 
 ty, his rights thereto have thereby become extinguished ; and no legal 
 claim therefor can be subsequently asserted under the mortgage. Kim- 
 ball V. Lewiston Steam, Mill Co., lv. 494. 
 
 39. A conveyance in mortgage to two or more persons to secure their 
 several debts creates an estate in common, and renders the mortg'gees 
 tenants in common, and not joint tenants. Brown v. Sates, lv. 5iiO. 
 
 40. If the administrator of the estate of a deceased mortgagee of land 
 in controversy consent that the legal owner of the mortgage note may 
 go into possession of the mortgaged premises, and the latter, by himself, 
 or agent, thereupon take possession thereof, he will, in law, be deemed 
 in possession under the authority of the administrator. Webster v. CaU 
 den, Lvi. 204. 
 
 See DowEE, 10. 
 
 MOETGAGB, 11, 59. 
 
 III. TRANSFER OF EIGHTS IN MORTGAGED ESTATES. 
 
 (a) By oonteact. 
 
 (b) Under legai- peoobss. 
 
 (O) GBNBEAIiLY. 
 
 (a) Jiy contract. 
 
 41. An assignment of a mortgage is a deed by which the interest of 
 the mortgagee is transferred, and it must be recorded. Mitchelly. Burn- 
 ham, xLiv. 286. Bailey v. Myrick, l. 171. 
 
 42. The assignment of a note secured by a mortgage, is not a legal 
 assignment of the mortgage. Stone v. Locke, xlvi. 445. Stewart v. 
 Crosby, l. 180. 
 
 |:3. It is, however, an equitable assignment of the mortgage. Stone 
 v. Locke, xlvi. 445. Stewart v. Crosby, l. 130. 
 
 44. Mortgages of real estate and the debts thereby secured, being as- 
 jsets in the liands of an administrator, a quitclaim deed by the heirs of 
 the mortgagee, before foreclosure, will not operate an assignment of the 
 mortgage. Douglass v. JDurin, ll 121. 
 
 45. And, if the administrator be an heir and a releasee of the oth«r 
 heirs, his deed of quitclaim will not so operate, when he does not con- 
 vey in the capacity of administrator. Bouglass v. Burin, li. 121. 
 
348 MORTGAGE. 
 
 46. Where a mortgagee assigns the mortgage and notes thereby se- 
 cured, with a covenant that he " is lawfully seized in fee of said notes, 
 and has good right to sell them," he is estopped from denying that they 
 were not all due according to their tenor. Haskell v. Monmouth F. 
 Ins. Co., Lii. 128. 
 
 47. In such case, a claim of the mortgagee upon an insurance compa- 
 ny by an order from the mortgager, for money due in consequence of 
 the desti-uction of the building upon the mortgaged property, and to he 
 indorsed upon the mortgage notes, passes with the assignment of the 
 mortgage. Haskell v. Monmouth F. Ins. Co., lii. 128. 
 
 48. If the mortgager obtains an assignment of the claim upon the in- 
 surance company, from such assignee, he is entitled to collect the same 
 of the company, and payment by them to the mortgagee is no defense 
 to an action therefor by the mortgager. Haskell v. Monmouth F. Ins. 
 Co., LII. 128. 
 
 49. A qnitclaim deed of the premises mortgaged, given by a mortga- 
 gee in possession, passes all his interest therein. Conner v. Whitmore, 
 LIL 185. 
 
 See Mortgage, 11. 
 
 (b) Under legal process. 
 
 50. The purchaser of a right in equity to redeem real estate, sold on 
 execution, acquires no interest in the estate that can be attached or 
 seized, imtil the year allowed for redemption has expired. Bogers v. 
 
 Wingate, xlvi. 436. 
 
 51. Two or more equities of redeeming mortgaged real estate cannot 
 be sold at the same time and for one sum. Stone v. Bartlett, xlvi. 438. 
 Smith V. Dow, li. 21. 
 
 52. If there has been no release of mortgaged real estate to the mort- 
 gager, his right of redeeming it may be seized and sold on execution, 
 with the same effect as though there had been a levy of the execution 
 thereon, notwithstanding the debt after condition broken had been fully 
 paid. Stewart v. Crosby, l. 130. 
 
 IV. DISCHAKGE AND EXTINGUISHMENT OF A MOETGAGB. 
 
 53. The receipt of a mortgagee, acknowledging satisfaction of the debt 
 secured by the mortgage, is not conclusive evidence of its discharge, but 
 is open to explanation. Pearce v. Savage, xlv. 90. 
 
 54. Where the amount of a mortgage debt, under a mortgage by a 
 husband and wife, was paid to the assignee of the mortgage, by the 
 husband, the wife not being present, or shown to have knowledge 
 thereof, and the assignee, by direction of the husband, conveyed the 
 estate to a third person by deed without formally assigning the debt, — 
 this is not a payment of the mortgage, it being manifestly the design of 
 the parties that it shall be kept up as a subsisting estate. Such a con- 
 veyance is good against all except those standing in the place of the 
 mortgager, and even against them until redemption. Cole v. Edgerly, 
 
 XLVIII.'IOS. 
 
MORTGAGE. 
 
 349 
 
 55. The burden of proof is upon a party alleging the payment of a 
 mortgage, although the mortgagees have not been in possession for more 
 than twenty years after the notes secured thereby became due, ifj during 
 that time, the premises are in possession of a tenant for life under a su- 
 perior title. Vrooker v. (Jrooker, xlix. 416. 
 
 56. Payment of a debt, secured by a mortgage of real estate, before 
 condition broken, revests the title in the mortgager; but not so, if made 
 after breach of condition. Stewart v. Crosby, l. 130. See § 22. 
 
 57. A. mortgaged certain land to B. to secure notes, and then con- 
 veyed the land to C. Afterwards C. conveyed by deed of warranty the 
 same land to B., and, without taking up A.'s notes or procuring a dis- 
 charge of the mortgage, C. received from B. a bond for a reconveyance 
 of the land upon C.'s paying in a time limited the original mortgage 
 notes of A. Held, that this did not operate a discharge of the mortgage 
 and vest an absolute title in B., subject only to the stipulations of the 
 bond, but was merely a reaffirtnation of the mortgage, with an extension 
 of the time of payment. Bailey v. Myrick, l. 171. 
 
 58. Nothing will discharge a mortgage but payment or release. Bai- 
 ley v. Myrick, l. 171. Parkhurst v. Cummings, lvi. 155. 
 
 59. The assignee of a mortgage cannot discharge it after having given 
 a quitclaim deed of the same premises. Conner v. Whitmore, lii. 185. 
 
 60. Where a mortgage of real estate was given to secure the fulfillment 
 of a bond of defeasance, conditioned for the support and maintenance of 
 the mortgagee, and the mortgager's assignee in possession paid and sat- 
 isfied, within the time limited therein, a conditional judgment rendered 
 upon such mortgage, Held, (1) That the bond and mortgage were 
 thereby completely satisfied ; (2) That no action could thereaflerwards 
 be maintained upon either ; (3) That such payment was equivalent to a 
 redemption ; (4) That the legal title thereby became vested in such 
 mortgager's assignee, leaving no equitable rights to be adjusted between 
 the parties; and (5) That he could maintain a writ of entry against the 
 assignee of the mortgagee in possession. Sibley v. Rider, liv. 463. 
 
 V. EEDEMPTION. 
 
 (a) Who may redeem, when, fkom whom, and how. 
 
 (b) Adjustment op accounts. 
 (o) Bills in equity to bedeem. 
 
 (a) Who may redeem, when, from whom, and how. 
 
 61. Where the mortgagee, or one claiming under him is entitled to re- 
 demption, the remedy is not in a suit at law, but by bill in equity. 
 Pearce v. Savage, XL v. 90. Pratt v. Skolfield, xly. 386. 
 
 62. Where a promissory note was secured by a deed which was un- " 
 conditional upon its face, but a bond of defeasance was given back (thus 
 constituting a mortgage), and subsequently the parties entered into a 
 verbal agreement that a further sum should be advanced to the mort- 
 gager and his note given up to him, and he should surrender the bond 
 held by him, and the note was actually given up, and nearly the whole 
 amount agi-eed to be paid, was paid ; still, if the bond was not in fact sur- 
 
350 MORTGAGE. 
 
 rendered or canceled, the mortgager would be entitled to redeem. Ml- 
 ton V. Jjothrop, xlvi. 297. 
 
 63. Where a mortgagee enters into possession after condition broken, 
 without taking the course provided by the statute to foreclose the mort- ' 
 gage, it is open for redemption for twenty years. Roberts v. Littlejidd, ■ 
 
 XLVIII. 61. 
 
 64. Where the amount of a mortgage debt, tinder a mortgage by. a' 
 husband and wife, was paid to the assignee of the mortgage by the hus- 
 band, the wife not being present or shown to have knowledge of the 
 transaction, and the assignee, by direction of the husband, conveyed the 
 estate to a third person by deed without formally assigning the debt, the 
 remedy of the wife's assignees, after the husband's decease, is by bill in 
 equity ; and if, on investigation, it is determined that the mortgage is ' 
 not foreclosed as against her, she may be entitled to redeem. Cole v. 
 Edgerly, xLvni. 108. 
 
 65. When a railroad company, owning a railroad lying in two differ- 
 ent States, under charters from each, mortgage th6 whole road and fran- 
 chise, and their right to redeem in one State is sold on execution, the 
 purchaser of the equity is entitled to redeem the whole road from the 
 mortgage. Wood v. Goodwin, xlix. 260. 
 
 66. When a mortgagee prosecutes a suit upon the mortgage for fore- 
 closure to final judgment and execution, he thereby waives foreclosure 
 in any other mode, and the mortgager's right to redeem will be extended ■ 
 accordingly. Tufts v. Maines, li. 393. 
 
 67. If a judgment creditor extend his execution on a portion of the 
 land mortgaged to secure the same debt, and the debtor neglect to re- 
 deem for the space of one year thereafter, so much of the estate as is 
 covered by levy is absolute in the creditor, notwithstanding the mort- 
 gage. Grooker v. Frazier, lii. 405. 
 
 68. The debtor may redeem the residue, however, by bill in equity; 
 and the court will appoint a master to ascertain the amount of rents aiid 
 profits upon the whole premises, to the time of the levy, and upon the 
 residue, from that time, until a release shall be executed and possession 
 surrendered by the respondent, for which sum and costs execution will 
 be issued. Groolcer v. Frazier, lii. 405. 
 
 69. By R. S. of 1857, c. 90, § 20, if any person, to whom a sum of 
 money is tendered to redeem mortgaged lands, receive a larger sum than 
 he is entitled to retain, he shall refund the excess. JBragg v. JPierce, 
 Liii. 65. 
 
 70. If in an action declaring upon the mortgagee's own seisin, without 
 naming the mortgage, neither party moves for a conditional judgment, 
 and a judgment for possession at common law is rendered, it will not af- 
 fect the right of redemption. Treat v. Pierce,ijn. 71. 
 
 ' 71. When a mortgagee, in possession of a part only of the premises 
 mortgaged, declares on his own seisin of the remainder, in a writ of en- 
 try against the mortgager, without naming the mortgage, or claiming a 
 iudgment as on mortgage, and the defendant moves that the plaintiff be 
 restricted to such judgment and it be rendered, the defendant must pay 
 the whole mortgage in order to redeem and hold the other portions to 
 compel them to contribute. Treat v. Pierce, i.iii.'71. 
 
MOKTGAGE. 
 
 351 
 
 72. A mortgager of real estate, who has conveyed the mortgaged 
 premises by deed of warranty to a third person, cannot maintain a bill to 
 redeem. Phillips v. JLeavitt, Liv. 405. 
 
 See DowBE, 10. 
 Mortgage, 59. 
 
 (b) Adjustment of accounts. 
 
 73. Where a promissory note was secured by a deed which was uncon- 
 ditional upon its face, but a bond of defeasance was given back (thus 
 constituting a mortgage) and subsequently the parties entert-d into a 
 verbal agreement that a further sum should be advanced to the mortga- 
 ger and his note given up, and he should surrender the bond, and the 
 note was given up, and nearly the whole amount agreed to be paid was 
 paid, but the bond was not in fact surrendered or canceled. Held, if the 
 mortgager or the purchaser of his right, brings his bill to redeem, he will 
 be held to account for the amount of the note given up, and for the 
 amount paid to the mortgager under such parol agreement. Milton v. 
 Z/Othrop, XL VI. 297. 
 
 , 74. The demand for an account, under R. S. of 1841, c. 125, § 16, must 
 be made upon the party having the legal title to the mortgage. /Stone 
 V. Locke, xLvi. 445. 
 
 75. Where an account was stated between the mortgagee and mortga- 
 ger, by a person employed for the purpose, the fact that a debt due a 
 third party for fixtures for the mortgaged premises was included in the 
 account without objection by either party, would not be conclusive in 
 making the mortgagee responsible therefor, if such account was stated 
 merely to ascertain what the mortgager had done with the money he 
 had received, and was not made or used for the purpose of a settlement 
 between the parties. Holmes v. Morse, l. 102. 
 
 76. In a bill to redeem mortgaged land, where several owners hold 
 distinct parcels of the mortgaged premises, the present value of the sev- 
 eral parcels, in case no improvements or erections had been made on 
 them subsequent to the mortgage, is the rule by which to determine 
 what each owner shall contribute to redeem the mortgage, this value to 
 be determined by the master. Sailey v. Myrich, l. 171. 
 
 77. Mortgagees are not entitled to the rents and profits of the estate 
 received by the mortgager, while in possession. Nbyes v. Rich, lii. 115. 
 
 78. If the mortgagee take possession of mortgaged premises in the 
 presence of two witnesses, for the purpose of foreclosure, he is not there- 
 by necessarily obligated to account for rents and profits. Bailey v. 
 Myrich, lii. 132. 
 
 79. If, after such possession taken, the mortgagee and those claiming 
 under the mortgager, allow the latter to remain in possession and take 
 the rents and profits, the mortgagee should not be held to account for 
 them. Bailey v. Myrich, lii. 132. 
 
 (c) Bills in equity to redeem. 
 
 80. A bill to redeem a mortgage which had been assigned and trans- 
 ferred, with due notice to the plaintiif, should be brought against the 
 
352 MORTGAGE. 
 
 assignee, although the assignment may not have been recorded. Mitchell 
 V. Burnham, xlit. 286. 
 
 81. And the tender should be made to him. Mitchell v. JBurnham, 
 XLIT. 286. 
 
 82. And the demand for an account of the rents and profits should be 
 made upon him. Mitchell v. JBurnham, xliv. 286. 
 
 83. But where the assignment has not been recorded or notice of it 
 given, tender may be made to, demand made of, and bill brought against 
 the mortgager. Mitchell v. JSurnham, xliv. 286. Stone v. Zioche, xlvi. 
 445. 
 
 84. Where judgment had been rendered against a mortgager, and the 
 mortgagee be6n put in possession of the premises under a writ of pos- 
 session, and, fifteen years afterwards, the mortgager brought a bill to re- 
 deem, alleging that the amount adjudged to be due at the time of judg- 
 ment, was paid before possession taken, Held, the burden of proving the 
 payment was upon the complainant, and in the absence of clear proof of 
 payment, the bill would be dismissed. Furlong v. Randall, xlvii. 79. 
 
 85. A bill in equity, to obtain a decree to redeem mortgaged premises, 
 is not technically a bill for discovery, and its verification by oath is not 
 required. Hilton v. Iiothrop, xlvi. 297. 
 
 86. Where a married woman is the owner of an equity of redemption, 
 her husband is properly joined with her in a bill in equity to redeem. 
 R. S. c. 61, § 3-. Hilton v. Loihrop, xlvi. 297. 
 
 87. A mortgager who has conveyed all his interest in the mortgaged 
 premises, should not be made a party to a bill to redeem. Hilton v. 
 ZiOthrop, XLVI. 297. 
 
 88. The heirs or devisees, as well as the personal representative of a de- 
 ceased mortgagee, should be made parties to a bill in equity to redeem 
 mortgaged real estate. Hilton v. ZiOthrop, xlvi. 297. 
 
 89. A mortgager, filing his bill to redeem, may bring before the court 
 all parties who might call for redemption, second mortgagees, subsequent 
 incumbrancers, and all legally or beneficially interested. Stone v. ^art- 
 lett, XLVI. 438. 
 
 90. But the owner of the equity may bring his bill against the last 
 mortgagee, if he choose to incur the risk of a foreclosure by a prior mort- 
 gagee, during its pendency. Stone v. Hartlett, xlvi. 488. 
 
 91. In such bill, the respondents have no right to require the com- 
 plainant to redeem a prior mortgage. If they have paid prior incum- 
 brances, they hold the same as a charge upon the estate. Stone v. Bart- 
 lett, XLVI. 438. 
 
 92. It is no valid objection to the maintenance of a bill to redeem 
 mortgaged real estate, that the complainant holds under, conveyances 
 fraudulent as against the respondents, creditors of the complainant's 
 grantor, until the estate of the complainant has been devested upon due 
 proceedings. Stone v. Locke, xlvi. 445. 
 
 93. The assignee of a note secured by a mortgage, should be made a 
 party to a bill to redeem the mortgage. Stone v. Locke, xlvi. 445. 
 
 94. Although the court has, by statute, power " to hear and determine 
 as a court of equity " " all suits for the redemption and foreclosure of 
 mortgaged estates," its powers are limited and restricted to the modes 
 
MORTGAGE. 
 
 358 
 
 of redemption prescribed by law ; and, where a party fails to comply 
 with the statute provisions, the court can afford him no relief under US 
 general powers as a court of equity. Brown v. Snell, xlvi. 490. 
 
 95. Where there is a conflict of testimony as to the amount which has 
 been paid on a mortgage note, and whether sufficient to redeem the 
 mortgaged premises!, unless the parties submit it to a jury, the court will 
 not determine it, but refer it to a master in chancery. Bartlett v. Fel- 
 lows, xr.vii. 53. 
 
 96. The mortgagee or assignee of a mortgage, who has parted with all 
 Lis interest, and has never made himseff liable for rents and profits, 
 should not be made a party to a bill to redeem the premises, unless he 
 is charged with fraud or collusion, or a discovery is sought from him. 
 Williams v. Smith, xlix. 564. Beals v. Cobb, li. 348. 
 
 97. A bill to redeem cannot be maintained, under our statutes, against 
 an assignee of the mortgage, by virtue of a tender made to a previous as- 
 signee, who has since parted with ail his interest. Williams v. Smith, 
 XLIX. 564. 
 
 98. Where a bill alleged that a mortgagee "by his assignment^ in 
 writing on said deed, sealed with his seal" (date and consideration 
 stated), " conveyed and assigned to the complainant all his right, title, 
 and interest in the same, together with the debt secured thereby, and all 
 his claims in and to the mortgage; all which will more fully appear by 
 said deed and the assignment when produced in court ; it was held suf- 
 ficient on demurrer, although it was not alleged that the assignment was 
 acknowledged and recorded. Lovdl v. Farrington, l. 239. 
 
 99. Where one of the mortgagers refuses to join in a bill for redemp- 
 tion, he may be properly made a party defendant, if, from the allegations 
 in the bill, it appears that he still has an interest. Iiovdl v. Farring- 
 ton, L. 239. 
 
 100. And his demurrer for wrong joinder will not be sustained; he 
 should discharge himself by his answer and proof. Z/Ovell v. Farring- 
 ton, L. 239. 
 
 101. A mortgagee who has simply given another a quitclaim deed of 
 the mortgaged premises, without assigning the mortgage debt, must be 
 made a party to a bill to redeem. Beals v. Cobb, li. 348. 
 
 102. The court will take notice of the want of necessary parties, and 
 ordinarily allow an amendment on just terms. Beals v. Cobb, li. 348. 
 
 103. Where a case in equity is submitted on an agreed statement, 
 with the stipulation that " no facts, statements, or allegations are to be 
 considered by the court except those therein agreed upon," and the biU 
 is defective for want of necessary parties, it will be dismissed, but with- 
 out costs and prejudice to either party. Beals v. Cobb, li. 348. 
 
 104. A master in chancery is not bound to report the evidence, but 
 only the facts proved. He may examine the parties as to the receipt of 
 rents and profits, or the possession of the estate, although one of them 
 may be an administrator. Bailer/ v. Myrick, lii. 132. 
 
 105. In a bill to redeem, an assignment by the complainant, after an- 
 swer filed, of all his interest in the mortgaged premises, can be made 
 available to the respondent by a cross-bill. Lambert v. Lambert, lh. 
 544. 
 
354 MOETGAGE. 
 
 106. Such an assignment, thus brought to the knowledge of the court, 
 constitutes a valid defense to the original bill. Lambert v. Lambert, lii. 
 544. 
 
 107. Want of equity is no defense to such a cross-bill brought forward 
 by way of defense ; the complainant in the original bill, should answer- 
 rather than demur, to the cross-bill. Lambert v. Lambert, lii. 544. 
 
 108. Whether or not a complainant in equity, who has made a tender 
 before commencing his suit to redeem a mortgage, must bring the tender 
 into court, quaere. Michards v. Pierce, lii. 560. 
 
 109. Possession may be restored after redemption under a bill in equity. 
 Treat v. Pierce, liii. 71. 
 
 110. In stating the account between the parties to a bill to redeem a 
 mortgage, the master should ascertain the gross amount of rents and 
 profits ; and th6n the costs of reasonable repairs and improvements ; the 
 taxes thereon, together with a suitable compensation for the care and 
 management of the estate ; from the gross amount of rents and profits, 
 the charges against the estate are to be taken, and, whenever the bal- 
 ance in the hands of the mortgagee exceeds the interest on the mort- 
 gage debt, at that time, it is to be deducted as in case of partial pay- 
 ments ; and so on from year to year. Pierce v. Faunce, Lni. 351. 
 
 111. When an estate is encumbered with dower, the mortgagee, so 
 long as he occupies, may either permit the dowress to enter, or pay 
 her a reasonable compensation for her right during his occupation ; and 
 for such sum thus paid, he should be allowed. Pierce v. Faunce, ua. 
 351. 
 
 112. He is to be allowed also for all expenses necessary for the protec- 
 tion and preservation of the estate ; but this does not riecessarily include 
 new erections ; nor the premium paid for an insurance on his own ac- 
 count. Pierce v. Faunce, liii. 351. 
 
 118. A bill for the redemption of a mortgage, seeking for answers to 
 allegations in reference to consideration, amounts received for rents and 
 income, and sums paid, is not a bill of discovery, and need not be "veri- 
 fied by oath." Dinsmore v. Grossman, liii. 441. , 
 
 114. Mortgages given for the support during life of the mortgagee, 
 may be redeemed after breach. Pryant v. Frskine, lv. 153. 
 
 115. A bill to redeem such a mortgage brought by the assignee of tlie 
 mortgager against the assignee of the mortgagee, having alleged an as- 
 signment by the mortgager to the complainant's intestate, but failed to 
 allege that the mortgagee assented to such assignment, and that the com- 
 plainant's intestate might discharge the obligations assumed by the mort- 
 gager, is therefore defective. Pryant v. Ershine, lv. 153. 
 
 116. When a bill is brought to redeem a mortgage, and the complin- 
 ant bases his right to redeem upon a levy made upon the mortgager's 
 equity of redemption, the respondent, not being a party or privy to the 
 judgment, may prove it erroneous and void for want of jurisdiction of 
 the parties. Buffum v. Pamsdell, lv. 252. 
 
 117. On March 4, 1846, a mortgage of real estate was given to the re- 
 spondent's testator to secure a note, of the same date, payable " with in- 
 terest annually." A few years afterwards, the mortgager gave to the 
 plaintiff's assignor a mortgage of the premises, " subject to the former," 
 to secure a sum therein specified. March 4, 1865, the mortgager gave to 
 
MORTGAGE. 
 
 355 
 
 the respondent's testator another negotiable note for the interest com- 
 puted annually, which had accrued upon the original note, and on the 
 same day made an indorsement upon the original note as follows : " Re- 
 ceived the interest on the within note to date by a note of March 4, 1865," 
 &c. The respondent, in her account of the amount due upon the mort- 
 gage, claimed payment of both notes, and interest on each, from the date 
 of the latter. In a bill brought by the assignee of the j unior mortgage, to 
 redeem the senior mortgage, Held, (1) That the second note was not in- 
 tended as payment ; (2) That the complainant was entitled to redeem up- 
 on payment ot the original note and simple interest; and (3) That the re- 
 spondent having claimed in her account more than she was entitled to 
 recover, was liable for costs. Parkhurst v. Cummings, lti. 155. 
 
 See DowEK, 10, 30, 34. 
 
 Equity, 86, 87, 90, 91, 92, 93, 94. 
 Mortgage, 175. 
 
 VI. FOKECLOStJRE. 
 
 118. "Where a mortgager remains in possession for twenty years after 
 breach of the condition, without payment of interest or admission of the 
 debt, the mortgagee will be barred of his foreclosure, unless the facts and 
 circumstances are- inconsistent with the presumption of payment of the 
 notes. Chick v. Rollins., xlit. 104. 
 
 119. A notice of foreclosure, stating that " the condition had been 
 broken, and now the mortgagees give notice of the same, and that they 
 claim a foreclosure of said mortgage," is sufficient. Pearce v. Savage, 
 XLV. 90. 
 
 120. Where a mortgagee has acquired the title of the mortgager, it is 
 tantamount to a foreclosure. Marston v. Marston, xlv. 412. 
 
 121. The publication of a legal notice by a mortgagee, for a foreclosure 
 of a mortgage for condition broken, is no bar to an action afterwards 
 brought, to obtain possession of the mortgaged premises. Concord U. 
 M. F. Ins. Co. V. Woodbury, xlv. 447. 
 
 122. To make effectual a notice by an assignee of a mortgage of real 
 estate, of his claim to foreclose the same, by publication in a newspaper, 
 it must appear, that, at the time of such proceeding, the assignment had 
 been recorded, or the person entitled to redeem had actual notice of it ; 
 otherwise, the mortgage will not be foreclosed at the expiration of three 
 years from the publication. Heed v. Elwell, xlvi. 270. 
 
 123. And, where the assignment had not been recorded until after the 
 publication of such notice, whether the time for redemption will expire 
 in three years from the time of the recording of the assignment, qucere 
 Heed V. Elwell, xlti. 270. 
 
 124. It would seem, that a party attempting to foreclose a mortgage 
 should give notice to all parties whose interests may thereby be affected. 
 Stone V. Bartlett, xlti. 488. 
 
 125. "Where a mortgagee, after condition broken, entered upon the 
 mortgaged premises, declaring his purpose to be to foreclose, but neg- 
 lected to record the certificate, he will not Sifterwards be allowed to 
 maintain an action against one acting under the mortgager, for hay cut 
 
356 ■ MORTGAGE. 
 
 upon the premises, claiming his entry to be sufficient to entitle him to 
 the rents and profits. Potter v. Small, xlvii. 293. 
 
 126. The statute of 1849, c. 105, provides that the certificate of the 
 register of deeds shfill he prima facie evidence of a public notice, by a 
 mortgagee, of liis claim to foreclose a mortgage, published "in a public 
 newspaper printed in the county where the premises are situated;" but 
 a ceitifioate of the register, that a (recorded) notice " was copied from 
 the Biingor Journal, vol. 1," &c., does not inform the court, j_udicially, 
 that the Journal " was a newspaper printed in the county," &c., and 
 without other evidence, there is no sufficient proof of notice. Blake v. 
 Dennett, xlix. 102. 
 
 127. When the mortgagees of a railroad are in possession for condi- 
 tion broken, and to foreclose the mortgage, the owner of the equity will 
 save the effect of the foreclosure by payment of what there is now due 
 on the mortgage, but will not be let into possession unless he pays or 
 provFfles security for the remainder of the debt secured by the mortgage 
 not yet due; although the mortgage provides that the mortgagees shall 
 not be entitled to possession till the condition is broken. WbodY. Good- 
 win, xLix. 260. 
 
 128. An agreement in a mortgage " that this deed shall commence to 
 foreclose the day after each note becomes due, provided any one remains 
 ■unpaid, and shall be foreclosed at the end of three years from said next 
 day after any one of said notes becomes due and remains unpaid," is in- 
 effectual. Chase v. McLellan, xlix. 375. 
 
 129. In proceeding to foreclose a mortgage by publication, the notice 
 must describe the premises so intelligibly, that those entitled to redeem 
 may know, with reasonable certainty, what premises are intended. Chase 
 T. McLellan, xlix. 375. 
 
 130. Where the mortgager is entitled to redeem, the description, — 
 " certain parcels of real estate situated in" certain towns named, "in 
 said county, and being certain undivided parts of a fulling-mill and 
 clothing-mill, and house-lot situated iu S. Island, occupied by said mort- 
 gager, and" another person named; also, a certain dwelling-house and 
 barn, with the land belonging to the same, situated in said S., "and now 
 occupied by said C," is sufficient. Chase v. McLdlan, xlix. 375. 
 
 181. A promise by a mortgagee, who has commenced proceedings to 
 foreclose, to give the mortgager six months after the time of redemption 
 ■would expire, to redeem, extends the time of redemption six months and 
 no more. Chase v. McLellan, xlix. 375. 
 
 132. A mortgagee must, in his process of foreclosure, strictly perform 
 all the conditions required by the statute, to , bar the right of redemp- 
 tion. Freeman v. Atwood, l. 473. 
 
 133. Although the certificate of the witnesses, in whose presence the 
 mortgagee took possession, was dated and duly recorded, it will be insuf- 
 ficient, unless the day of entry is stated therein. Freeman v. Atwood, 
 X. 473. 
 
 184. The unauthorized signing and publishing of a notice of foreclos- 
 nre, cannot, by a subsequent ratification by the mortgagee, be rendered 
 operative from the time of its first publication. Treat v. Fierce, liu. 71. 
 
 135. When the first publication is invalid, the foreclosure is void. 
 Treat v. Fierce, Lin. 71. 
 
MORTGAGE. 
 
 357 
 
 - 136. To foreclose a mortgnge by an action at law, while c. 105 of the 
 Public Laws of 1849 was in force, a recording of the certified abstract 
 within the time, and at the place therein provided, was essential. Hatch 
 V. Bates, liv. 136. 
 
 137. Immediately following the record of a notice for the foreclosure 
 of a mortgage was the following certificate, signed by the register of 
 deeds: " Somerset, Feb. 15, 7^ a. m., 1859. Received and copied the 
 above notice of foreclosure from the Republican Clarion, a weekly news- 
 paper printed at 8kowhegan, in said county, bearing date Jan. 19, 1859, 
 vol. 18, No. 32, having been published in said paper three weeks suc- 
 cessively, as appears by papers shown at this office. Hdd, that the cer- 
 tificate of the register sufficiently indicated "the name and date of the 
 newspaper in which" the notice "was last published." Chase v. Savage, 
 LT. 543. 
 
 138. The record of the notice of a foreclosure of a mortgage is the 
 only proper evidence of the time when the "light of redemption will be 
 forever foreclosed ;" and a person seeking to redeem a mortgage trusts 
 to other sources of information at his peril. Chase v. Savage, lt. 548. 
 
 Vn. ACTIONS AT LA-W, AND JUDGMENTS THEREON. 
 
 139. In an action for possession against a mortgagee, he is estopped by 
 his deed to deny his title to the mortgaged premises at the time of mak- 
 ing the mortgage. Concord U. M. F. Ins. Co. v. Woodbury, xlv. 447. 
 
 140. If, after the commencement of an action upon a mortgage for 
 possession, the tenant abandon the premises and the demandant take 
 possession, the mortgagee may prosecute his action to judgment. Tufts 
 T. Matties, LI. 393. 
 
 141. When the defendant, at the time of signing a promissory note, 
 affixes the word " principal " to his signature, the note will be conclu- 
 sive evidence that he is principal, in an action upon the mortgage given 
 by the defendant to the plaintiff to secure its payment. Waterville Bank 
 V. Bedington, Ln. 466. 
 
 142. By R. S. of 1857, c. 90, § 7, a mortgagee may declare on his own 
 seisin, in a writ of entry, without tiaming the mortgage ; and in all cases, 
 where the tenant is not the mortgager or a person claiming under him, 
 judgment may be entered as at common law, unless the plaintiff consents 
 to the entry of a conditional judgment. Treat v. Pierce, lhi. 71. 
 
 148. If it appears on default, demurrer, verdict, or otherwise, that the 
 plaintiff is entitled to possession for breach of the condition of the mort- 
 gage, the court shall, on motion of either party, and not otherwise, award 
 the conditional judgment. Treat v. Bierce,iMi.Ti.. 
 
 144. If neither party desii-es such judgment, then the plaintiff may 
 have judgment for possession on his own seisin, as at common law. Treat 
 V. Pierce, Liii. 71. 
 
 145. If judgment be given as on mortgage, no judgment for mesne 
 profits can be rendered. Aliter, if judgment be rendered as at common 
 law. Treat v. Pierce, liii. 71. 
 
 146. The assignee of three out of four mortgagees of land to secure 
 their several demands, may maintain a writ of entry for the possession of 
 the mortgaged premises, against the mortgager and all claiming under 
 
358 MOKTGAGE. 
 
 him, if the interest of the fourth mortgagee has not been legally assigned 
 to the party defendant, but remains vested in some third party. Brown 
 V. Bates, lv. 520. 
 
 147. In the trial of a real action, brought after foreclosure, by a mort- 
 gagee of lands against the mortgager, to recover possession of the mort- 
 gaged premises, the defendant is estopped to set up a lease from the 
 assignee of a senior mortgage of the premises, given by the defendant, 
 Jarvis v. Deane^ lvi. 9. 
 
 148. The lien of a mortgagee attaches equally for the debt and for the 
 costs necessarily arising in the enforcement of his rights by a suit at law. 
 Mawson v. Hall, lti. 142. 
 
 Till. MOKTGAGE OF CHATTELS. 
 
 149. A stock of goods mortgaged, " in store No. 2, Glidden block," 
 was subsequently moved to another store. ^e?(?, that all the goods in. 
 store No. 2, at the time of the mortgage, were covered by it. That 
 moving them from one store to another would not destroy the mort- 
 gagee's right to them, so long as he could identify them. Wheelden v. 
 
 'Wilson, XLiv. 11. 
 
 150. A mortgage of personal property, made by a debtor to secure a 
 creditor, without the latter's knowledge, although recorded, is inoper- 
 ative, until it is approved or assented to by such creditor. Oxnard v. 
 Blake, xlv. 602. 
 
 151. And when several such mortgages of the same property are made 
 and recorded, to different creditors, that mortgage which is soonest rat- 
 ified will take precedence; and the others, becoming operative by subse- 
 quent ratification, will be subject to it. Oxnard v. Blake, xlv. 602. 
 
 152. The recording of a mortgage, at the instance of the mortager, 
 will not amount to a delivery of it; and though made effectual by the 
 subsequent ratification of the mortgagee, it cannot affect the rights which 
 another mortgagee acquired by a prior ratification of a mortgage to him 
 of the same property, made and recorded at the same time. Oxnard v. 
 Blake, xlv. 602. 
 
 153. By a mortgage of "all the desks, chairs, trunks, and office furni- 
 ture in " a certain office, the mortgager intended all the articles of use in 
 the office at the time should pass ; and an iron safe, which was then used 
 there, would be embraced as an article of office furniture. Skowhegan 
 Bank v. Farrar, xlvi. 293. 
 
 154. Where a mortgage and the notes secured thereby are made and 
 delivered at the same time, the mortgage is valid, though by mistake 
 dated a year prior to the date of the note. Partridge v. Swazey, xlvl 
 414. 
 
 155. By the record of such a mortgage, third persons, proposing to 
 purchase the property therein described, are at least constructively noti- 
 fied of the lien. Partridge v. Swazey, xlvi. 414. 
 
 156. When a mortgagee has the right of immediate possession of per- 
 sonal property, no demand is necessary in order to sustain replevin by 
 the mortgagee against a subsequent vendee of the mortgager. Pai'- 
 tridge v. Swazey, xlvi. 414. 
 
MOETGAGE. 
 
 359 
 
 157. A mortgage of personal property to secure an existing debt and 
 future advances, is valid. Googins v. Oilmore, xltii. 9. 
 
 158. The fact that goods mortgaged were partly perishable does not 
 necessarily avoid the mortgage ; but the character and condition of the 
 goods are matters properly to be considered by the jury, in determining 
 whether a mortgage is fraudulent. Googins v. Gilmore, xltii. 9. 
 
 159. A stipulation in a chattel mortgage that the mortgager may re- 
 tain possession of the chattels for a time, is only such proof of fraud, as 
 to go to the jury, with the other evidence in the case, for them to de- 
 termine whether the mortgage is fraudulent or not. Googins v. CHI- 
 more, XLVII. 9. 
 
 160. The mortgagee of personal propei-ty may bring an action for 
 damages to the mortgaged property, although he has not a right to im- 
 mediate possession. Googins Y. Gilmore, xi.rii. 9. 
 
 161. A mortgage of personal property need not be sealed, though 
 written in the form of a deed. Gerrey v. White, xLvn. 504. 
 
 . 162. The record of a fraudulent mortgage of chattels is equivalent to 
 a delivei-y of the goods, and passes the title to the mortgagee, so far as 
 to enable him to maintain an action against an officer for the value of 
 the goods attached, and sold at private sale, without any account having 
 been kept, though sold with the assent of the mortgager in whose pos- 
 session the goods were found when attached. Andrews v. Marshall, 
 XL VIII. 26. 
 
 163. A delivery of personal property to one as collateral security 
 where there is no written conveyance of it, cannot be regarded as a 
 mortgage. Day v. Swift, xLVin. 368. 
 
 164. Where there are two or more joint mortgagers of personal prop- 
 erty, residing iu different towns, the record thereof required by R. S. of 
 1841, c. 125, § 32, is incomplete if not recorded in each of the towns in 
 which the mortgagers reside. Rich v. Roberts, xlviii. 548. Morrill v. 
 San ford, xlix. 566. Morrill v. Bunker, xlix. 566. Rich v. Roberts, 
 L. 395. 
 
 165. In the statute requiring the record of mortgages of personal prop- 
 erty, in order to make them effectual, there is no qualification relating to 
 "actual notice" as in the case of deeds. Rich v. Roberts, XLvm. 548. 
 Sheldon v. Conner, xlviii. 584. 
 
 166. An^ the title of one subsequently purchasing or attaching mort- 
 gaged personal property will not be affected by such mortgage, if unre- 
 corded, notwithstanding he had actual notice of it. Sheldon v. Conner, 
 xlviii. 584. Rich v. Roberts, xlviii. 548. 
 
 167. The mortgagee, in a second mortgage of chattels, may maintain 
 trover against an officer, who, before the title of the first mortgagee be- 
 came absolute, attached and sold the goods mortgaged, such first-named 
 mortgagee being, by the act of the officer, deprived of his right of re- 
 demption. Treat v. Gilmore, xlix. 34. 
 
 168. The right of the second mortgagee to redeem the goods contin- 
 ues until the foreclosure of the first mortgage, unless defeated by the 
 goods taken and sold by a third party. Treat v. Gilmore, xlix. 34. 
 
 169. An appraisal of goods of a mortgager, attached by his creditors, 
 made under the authority of the attaching officer, is not binding on the 
 
360 MORTGAGE. 
 
 mortgager as a rule of damages, in an action against the officer. Treat 
 V. Gilmore, xlix. 34. 
 
 170. As security for the payment of a debt, P. gave W. a written 
 agreement, acknowledging that he had received of W. a horse, as the lat- 
 ter's property, which he would return to him, at a time therein specified, 
 or pay the debt. The horse, at the time was, in fact, the pioperty 
 of P., and no delivery of it was made to W.; afterwards P. sold the 
 horse. Held, that the property passed to the vendee; and that the writ- 
 ing held by W. was not a bill of sale, nor was it a mortgage ; and, by it, 
 
 . no interest in the property passed to W. Crane v. Pearson, xlix. 96. 
 
 171. A mortgage of personal property was given to secure the pay- 
 ment of a note therein described ; but that offered in evidence to sup- 
 port the mortgage was materially different. Held, it must be cleaily 
 shown that the last note was intended, by the parties, as a renewal of 
 the former. Barrows v. Turner, l. 127. 
 
 172. Before the enactment of c. 114, of the Public Laws of 1859, per- 
 sonal property mortgaged could not be legally attached, until after ten- 
 der of payment of the mortgage debt. Barrows v. Turner, l. 127. 
 
 173. If a chattel mortgage has been recorded in the town in which 
 the mortgager resided at the time it was executed and delivered, and he 
 afterwards removed to another town, taking the property with him, the 
 statute does not require the mortgage to be again recorded in the town 
 to which he has removed. Barrows v. Turner, l. 127. 
 
 174. Where a creditor of one of the mortgagers has attached the 
 mortgaged property, the holder of a second mortgage of the same prop- 
 erty, which has been duly recorded, but not until after the attachment, 
 cannot maintain an action against the attaching officer until the attach- 
 ment is released or dissolved. Rich v. JRoberts, l. 395. 
 
 175. A mortgagee of chattels may waive his lien under the mortgage 
 and attach the same property in a suit at law. Whitney v. Farrar, li. 
 418. 
 
 176. The validity of a recorded chattel mortgage is not established 
 unless the case discloses the residence of the mortgager. Bither v. 
 Buswell, LI. 601. 
 
 177. Where a railroad company, by virtue of a special act mortgaged 
 to the plaintiffs not only all of the property then owned by both the 
 new and the old portions of the road, but ''all the property .^f the ex- 
 tension subsequently to be acquired," Held, that wood, subsequently 
 purchased with the earnings and for the use of the whole road, would 
 not pass by said mortgage. Bath v. Miller, liii. 308. 
 
 178. By the common law, a mortgagee of personal property, upon the 
 failure of the mortgager to perform the condition of the mortgage, ac- 
 quires an absolute title to the chattel. Winchester v. Ball, liv. 558. 
 
 179. Under our statute, if the debt secured by the mortgage is not 
 paid, when the time of redemption has expired, the title of the mortga- 
 gee becomes absolute. Winchester v. Ball, liv. 558. 
 
 180. Acceptance of a part-payment of the.principal of a note secured 
 by a chattel mortgage, after the expiration of time of redemption, is a 
 ■waiver of the forfeiture. Winchester v. Ball, liv. 558. 
 
MUEDEE. ^"1 
 
 181. And the time of redemption commences to run again from the 
 time when the last partial payment is made and accepted, upon chattel 
 mortgaftos made prior to the enactment of c. 23, of the Public Laws ol 
 1861. Winchester v. £aU, lit. 558. 
 
 182. Chapter 23, of the Public Laws of 1861, is not applicable to chat- 
 tel moitgages less than $30, and they become forfeited by failure to per- 
 form their conditions. Winchester v. Hall, lit. 558. 
 
 188. A mortgagee of the goods and accounts of his debtor, is not 
 obliged to collect the accounts and apply their proceeds ^ro tanto to the 
 discharge of his claim upon the goods, to aid other creditors, not se-' 
 cured. Emmons t. Bradley, lti. 333. 
 
 184. When a railroad, with the franchise, is mortgaged, the rolling 
 stock to be subsequently acquired for the pui'pose of completing or re- 
 pairing it is so appurtenant to it, that the company have a present, exist- 
 ing interest in it, sufficient to uphold the grant of both together, even 
 before the latter was acquired and against a mortgager of a mortgage 
 thereof made and executed after and upon the acquisition of such roll- 
 ing stock. Morrill v. Noyes, lti. 458. 
 
 See Amendment, 8. 
 Attachment, 18. 
 Estoppel, 18. 
 Shipping, 12. 
 
 MURDER. 
 
 1. On the trial of an indictment for murder, the prisoner's testimony 
 before the coroner's inquest upon the body of the person alleged to have 
 been murdered, given without objection by him, before his arrest, 
 though after he had been charged with the murder, and after being cau- 
 tioned that he was not obliged to testify to anything which might crimi- 
 nate himself, and not purporting to be a confession, is admissible as ev- 
 idence against him. State v. Gilman. li. 206. 
 
 2. The second clause of § 6, of art. 1, of the constitution of this State, 
 requires simply, that all the elements of, or acts necessary to, the crime 
 charged in an indictment, shall be fully and clearly set out. State v. 
 
 Verrill, liv. 408. 
 
 3. An indictment for murder need not set out the "manner in which 
 and the means by which " the killing was perpetrated. State v. Verrill, 
 LIT. 408. 
 
 4. An indictment, alleging that the accused, on a day, and at a place 
 named, in and upon the body of a person named, "feloniously, wilfully, 
 and of his malice aforethought, did make an assajilt, and her, the said" 
 person named, "then and there feloniously and of his malice afore- 
 thought, did kill and murder," &c., will sustain a verdict of guilty of 
 murder in the first degree under the statutes of this State. State v. 
 
 Verrill, lit. 408. 
 
362 
 
 NEW TRIAL. 
 
 NEW TRIAL. 
 
 I. GENERALLY. 
 II. NEWLY DISCOVEEED EVIDENCE. 
 HL MISTAKE, OR FAULT OE JURORS. 
 IV. ERRORS OF THE COURT. 
 
 {For new trials in capital cases, See State v. Verrill, lit. 581.) 
 
 I. GENERALLY. 
 
 1. After writs of venire had been issued by the clerk for the county 
 of Hancock, the town of Greenfield was set off from that county and 
 annexed to Penobscot. A motion to set aside a verdict for the reason 
 that one of the jurors was from that town, was overruled ; for the par- 
 ty will be presumed to have had knowledge of the objection, and to have 
 waived it. Mi. Desert v. Cranberry Isles, xlti. 411. 
 
 2. Upon a motion for a new trial, it was contended that a witness at a 
 previous trial of the same issue had given evidence contradictory to his 
 later testimony, but which was not made to appear in the report upon 
 which the motion was founded,- Held, that this court can act only upon 
 the evidence as reported ; and that if the moving party intended to avail 
 themselves of such alleged contradiction, he should have proved it at the 
 latter trial. Dickey v. Maine Tel. Co., xlvi. 483. 
 
 3. It is too late, after the trial, to object that a juror was irregularly 
 returned and sworn, if the facts were known jto the party before the 
 trial, and it does not appear that he was thereby inj ured. Wallace y. 
 Columbia, xLvni. 436. 
 
 4. By R. S. of 1857, c. 82, § 73, if a party knows any objection to a 
 juror in season to propose it before trial, and omits to do so, he shall not 
 afterwards be allowed to make it, unless by leave of court for special rea- 
 sons. Dane v. Goodwin, xlvii. 593. Jameson v. And. H. H. Co., m. 
 412. Tilton v. Kimball, lh. 500. 
 
 5. Where, in the trial of a writ of entry, the title of the tenant de- 
 pended upon a conveyance to him alleged to be fraudulent as to ex- 
 isting creditors, the jury, after their general verdict had been read, were 
 orally asked by the presiding judge, whether, in arriving at their verdict 
 they had decided whether or not the tenant paid any valuable considera- 
 tion for the deed in controversy, to which the foreman replied, " the j ury 
 had found, that the tenant did not pay any consideration for the deed ;" and 
 the presiding judge thereupon wrote out the question to which the answer 
 was responsive, and the verdict, together with the question and answer, 
 was read to the jury, and by them afBrmed. Held, that the special find- 
 ing would not be set aside on motion of the defendant, the demand held 
 by the plaintiff against the defendant being an existing one at the time 
 of the conveyance. Warren v. Williams, lii. 343. 
 
 6. A party seeking a new trial, by reason of interest in a juror, should 
 negative his own knowledge of such interest. Jameson v. And. B. B. 
 Co., LII. 412. Merrill v. And. B. B. Co., lii. 412. White v. And. B. 
 B. Co., Ln. 412. Tilton v. KimbaU, lii. 500. 
 
NEW TRIAL. 
 
 363 
 
 7. A simple denial of such knowedge, made in the motion, omitting to 
 negative such knowledge on part of his counsel, unaccompanied by any 
 affidavit, or other proof of such denial, is not sufficient to warrant a set- 
 ting aside the verdict. Jameson v. And. Ji. H. Co., lii. 412. 
 
 8. Any objection to the competency of a sheriff 's jury, on the ground 
 that they were not regularly certified or summoned, will be deemed to 
 be waived unless taken at the trial. Jameson v. And. H. B. Co., lii. 
 412. 
 
 9. When a witness, by reason of a mistake, has testified incorrectly, 
 in behalf of the prevailing party, the court, in its discretion, may grant 
 a new trial. Hewey v. Nourse, liv. 256. 
 
 10. But it must clearly appear that the mistake was in regard toa 
 mateiial point; and the circumstances should be such as to render it 
 probable that the mistake affected the verdict. Hewey v. N'ourse, liv. 
 256. 
 
 11. To sustain a motion to set aside a verdict for such cause, it is not 
 sufficient that the witness testifies that he is convinced of his mistake, it 
 should also be made to appear to the court, that there is reasonable 
 ground to believe the witness was actually mistaken. Hewey v. Nourse, 
 LIT. 256. 
 
 II. NEWLY DISCOVERED EVIDENCE. 
 
 12. In a case of a complaint under the bastardy act, where exceptions 
 were overruled and judgment ordered on the verdict, a motion to set 
 aside the verdict and grant a new trial on the grt und of newly discov- 
 ered evidence, will not be entertained, though the same be filed before 
 the final proceeding and order are had on the verdict. Dyer v. Huff, 
 XLV. 376. 
 
 13. A new trial will not be granted on the ground of newly discovered 
 evidence, when such evidence is cumulative, and due diligence would 
 have enabled the party to discover the evidence before the trial. Mc- 
 JLaughlin v. Doane, lvi. 289. Atkinson v. Conner, lti. 546. 
 
 See Divorce, 11. 
 
 in. MISTAKE OE FAULT OF JCEOES. 
 
 (a) Vekdict against law ob evidence. 
 
 (b) Excessive oe inadequate damages. 
 (o) Misconduct of juet. 
 
 (a) Verdict against law or evidence. 
 
 14. A motion for a new trial, on the ground that the verdict is against 
 the weight of evidence, will not be considered by the law court, unless 
 the report of the evidence is duly authenticated by the judge who pre- 
 sided at the trial. /Simpson v. Norton, xly. 281. 
 
 15. Where a jury have, on evidence before them, decided against the 
 alleged fraud in a mortgage, this court will not, except in glaring cases, 
 gi-ant a new trial. Ooogins v. Oilmore, xlvii. 9. 
 
364 NEW TRIAL. 
 
 16. Although the conclusion to which a jury arrived may be different 
 from that of the court, hiid the issue been submitted to them, the ver- 
 dict will not be set aside unless it was most manifestly against the 
 weight of evidence. Googins v. Gilmore; XLvn. 9. Williams v. £uker, 
 XLix. 427. Peabody v. Hewett, lii. 33. Farnwm v. Virg/w, lii. 576, 
 Gleason v. Bremen, l. 222. Brown v. Smith, lii. 141. Stone v. Augusta, 
 XLVi. 127. Beadfield v. Shaver, l. 36. Barby v. Hayford, lti. 246. 
 
 17. And unless it so preponderated in favor of the losing party as to 
 authorize the court to infer that the jury acted under a mistake, or were 
 influenced by improper motives. 'Williams v. Buher, xlix. 427. Hotiey 
 V. Chase, lii. 304. Folsom v. Skofield, lul 171. Fessenden v. Sager,Liu. 
 531. Barby v. Hayford, lvi. 246. 
 
 18. A verdict for a tenant, who claims title by twenty years' posses- 
 sion, cannot be sustained, when there is no evidence that his possession 
 was adverse to the title or interest of the demandant who was the true 
 owner. Eaton v. Jacobs, xlix. 559. 
 
 19. Where one arrested on a criminal process, in which he was 
 falsely charged with fraud, for the purpose of coei-cing him to surrender 
 to the prosecutor certain promissory notes of which each of them was 
 part-owner — such a prosecution is without probable cause, and in legal 
 contemplation malicious, and a verdict for the defendant in an action 
 for malicious prosecution involving these facts will be set aside. Kim- 
 ball V. Bates, l. 308. 
 
 20. A verdict will not be set aside because it differs from the opinion 
 of the witnesses as to the value of the land in question, when no im- 
 proper influences appear to have biased the jury. Peabody v. Sewett, 
 lii. 33. 
 
 21. Whether the special finding of a jury were regular or not, or 
 whether against evidence or not, it will not be set aside, when it could 
 not have affected the result, or injured the party moving to have it set 
 aside. Warren v. Williams, lil 343. 
 
 -22. In criminal cases, this court, sitting in banc, has no jurisdiction of 
 a motion to set aside a verdict as being against the weight of evidence. 
 State V. Smith, lit. 33. 
 
 23. Such motio n mu st be decided by the judge who presided at tha 
 trial at nisipriusf /State v. Smith, liv. 33. 
 
 24. In an action of trespass quare clansum, the jury found that the 
 locus in quo was "necessary for and attached to" the defendants' grist- 
 mill, — the use of the locus as a passage-way by plaintiff, being inconsist- 
 ent, with the ordinaj-y use of the grist-mill ; a motion to set aside the 
 verdict as against evidence was overruled and judgment rendered ; in a 
 subsequent suit between the defendants' grantees and the plaintiff, the 
 jury, upon the same evidence, and upon the same instructions, found 
 that another parcel of the same premises, which the respective parties 
 claimed under the same title, was " necessary for and attached to " the 
 gi-ist-mill, JETeld, that a motion to set aside the verdict in the latter case 
 as being against evidence, must be overruled, it appearing that the use 
 by the other party of the premises in dispute in the second case, was a 
 greater incumbrance on the use of the grist-mill than his use of the prem- 
 ises in dispute in the first case. Page v. JEsty, liv. 319. 
 
 25. There was a controversy between the parties as to the right to the 
 
NEW TRIAL. 
 
 365 
 
 possession of a certain lot of land, and the dwelling-house thereon, which 
 one of the defendants helped to erect, and in which he had some per- 
 sonal eifects. The plaintiff declared that the defendants broke and en- 
 tered his dwelling-house, destroyed his stove, assaulted and expelled him 
 from the premises. The defendants asserted a previous trespass by the 
 plaintiff, as well as the first assault in this case, and a subsequent mutual 
 compromise and adjustment of the whole matter. Upon this last issue 
 there was conflicting testimony, but the jury found it for the defend- 
 ants. Qn a motion to set aside the verdict as^eing against the weight 
 of testimony, Held, that the verdict in such a case will not be disturbed 
 when it affirms nothing that is positively incredible. Doyle v. Donnelly, 
 LTI. 26. 
 
 (b) Excessive or inadequate damages. 
 
 26. When the bill of particulars filed exceeds in amount the sum 
 claimed in the declaration, and the verdict follows the amount of the 
 former, it will not be set aside on that account, if the plaintiff remits the 
 excess. Butler v. Millett, xlvii. 492. 
 
 27. A verdict of $5,525 for personal injuries occasioned by a defective 
 highway, was set aside as being excessive, where the injury did not re- 
 sult in the loss of a limb. Gleason v. Bremen, l. 222. 
 
 28. Erroneous instructions on the question of amount of damages are 
 no ground for setting aside the verdict, if the jury find the plaintiff is 
 not entitled to damages. I'ope v. Machias W. P. Co., isa. 535. 
 
 29. Under what circumstances a verdict of $1400, in an action for 
 malicious prosecution and slander, is not excessive. Sumphries v. Par- 
 ker, Lu. 502. 
 
 (c) Misconduct of jury. 
 
 30. When, during the progress of a trial, one party's counsel has no- 
 tice of communications between the other party and some of the jurors 
 before whom the cause is being tried, but goes on with the trial without 
 objection, he thereby consents to abide the result. Fessenden v. Sager, 
 Lin. 531. 
 
 31. After the evidence was closed, but before argument and during a 
 temporary adjoui-nment of the court, one of the jurors called upon the 
 defendant, asked for, received and read in part a printed copy of the ev- 
 idence adduced at a former trial of the cause, and formed a conclusion 
 therefrom that the testimony of some of the witnesses at the former trial 
 varied somewhat from that given them at the latter. The verdict was 
 for the defendant, and on motion of the plaintiff. Held, that the verdict 
 be set aside and a new trial granted, whatever the defendant's motives 
 may have been. Heffron v. Gallupe, lv. 563. 
 
 32. As a general rule, the testimony of a juror as to any irregularity 
 or misconduct of the jury when acting or deliberating as an organized 
 body in the performance of their official duty, is inadmissible on°a mo- 
 tion to set aside a verdict. Heffron v. Gallupe, lt. 563. 
 
 33. Aliter, as to facts touching his own conduct while separated from 
 his fellows, or as to the acts or declarations of a party to or with him. 
 Heffron v. Gallupe, lv. 563. 
 
366 NEW TRIAL. 
 
 IV. EEROES OF THE COURT. 
 
 (a) Misstatement op the law. 
 
 (b) Admission op impbopbb btidencb. 
 
 (a) Misstatement of the law. 
 
 34. A new trial will not be granted because the jury assessed the dam- 
 ages, in an action upon a bond for support, and under a plea of nil debet, 
 to the time of trial, instead of for a full performance ; when the defend- 
 ant did not claim to have the damages assessed by the presiding judge 
 instead of the jury, nor claim a new trial because they were not so as- 
 sessed. I'hilhrook v. Burgess, lii. 271. 
 
 35. A new trial will not be granted because an instruction to the jury 
 may not be tenable as an abstract legal proposition, if it be not perceived 
 that the excepting party could be injured thereby. Moulton v, Wither- 
 ell, ui. 237. 
 
 36. Instructions to the jury upon questions not passed upon by them 
 in rendering their verdict, are no cause for setting it aside, even if they 
 were erroneous. Hovey v. Chase, lu. 304. 
 
 37. The verdict of a sheriff's jury, summoned to estimate damages 
 consequent upon the taking, &c., of lands of several petitioners, over 
 which to locate a railroad, will not be set aside, because the officer, pre- 
 siding at the hearing, instructed the jury that they should first view the 
 several lots of the respective petitioners, and the hearing thereon should 
 be at one time and in their order. Jameson v. And. JR. S. Co., lh. 412. 
 
 (b) Admission of improper evidence. 
 
 38. A new trial will not be granted because the presiding judge ad- 
 mitted immaterial testimony de bene esse, against the objections of the 
 defendant, when, in the charge, the jury were instructed to disregard it. 
 Philbrook v. Burgess, Ln. 271. Webster v. Golden, lv. 165. 
 
 39. Nor because of the admission of irrelevant testimony, if the facts 
 thereby proved were such as could not have injured either party by mis- 
 leading the jury. Showhegan Bank v. Cutler, Ln. 509. Pope v. Ma- 
 chias W. P. Co., lii. 535. 
 
 40. Nor because of the admission of an improper question, when it is 
 manifest that the answer could not have prejudiced the excepting party. 
 Hovey v. Hobson, ir^. 256. 
 
 NEXT OP KIN. 
 See Devise, &c., 27, 
 
NONSUIT. 
 
 NOLLE PROSEQUI. 
 See Pkacticb, 115, 
 
 367 
 
 NONSUIT. 
 
 1. After the plaintiff had closed his testimony, the defendants offered 
 a paper, and called and examined a witness to prove its execution, but 
 failing to prove it, it was excluded. They then offered a book, claiming 
 that it was their book of records, and called and examined a witness to 
 prove it ; but failing in this, the book was excluded. Thereupon, the 
 presiding judge, upon their motion, ordered a nonsuit, and it was held 
 that no evidence had been put into the' case by the defendants, and that 
 the nonsuit was properly ordered. Webber v. School Bis. No. 9 in Shap- 
 leigh, xlt. 299. 
 
 2. When a person performs labor for another under a written contract, 
 and, though not performed according to its terms, the other party has 
 waived it, the person performing the labor can recover only upon the 
 contract. Though not fully performed, it is the basis of the estimation 
 for damages ; and, if it appears by the plaintiff's testimony that such la- 
 bor was performed under a written contract, which is not produced, nor 
 its non-production accounted for, a nonsuit may properly be ordered. 
 
 Webber v. School Dis. No. 9 in Shapleigh, xlv. 299. 
 
 3. A judgment on nonsuit in a former case between the same parties, 
 for the same cause of action, is no bar to a second suit, when it appears 
 that the former case was not tried on the merits. Jay v. Carthage, 
 XLvm. 353. JBrett v. Marston, xlv. 401. 
 
 4. In an action brought by an employee of a corporation for personal 
 injury received while in their employment, it is not a sufficient objection 
 to the action of the presiding judge in ordering a nonsuit, that there 
 was some evidence from which negligence on the part of the defendants 
 might have been inferred, unless there was evidence on which a jury 
 might reasonably and properly conclude there was negligence. Beau- 
 lieu V. Portland Company, xLvm. 291. 
 
 5. In an action for malicious prosecution the presiding judge may 
 either order a nonsuit, or direct a verdict for the defendant, if, in his 
 opinion, the facts admitted, or clearly established, are not sufficient to 
 prove a want of probable cause, notwithstanding evidence, in defense, 
 has been introduced. Cooper v. Waldron, l. 80. 
 
 6. On trial upon a complaint for flowage, the complainant produced a 
 quitclaim deed of the land flowed, without evidence of an entry or pos- 
 session by him, actual or constructive, Seld, That a nonsuit was erro- 
 neously ordered, the complainant having made out & prima facie case of 
 ownership. WiUiamson v. Carlton, li. 449. 
 
 See Attachment, 88. 
 Landlord, &c., 20. 
 
368 NOTICE AND NOTIFICATIONS. NUISANCE. 
 
 NOTICE AND NOTIFICATIONS. 
 
 To enable a party to maintain a suit upon a sheriff's official bond, no 
 notice to his sureties of his default, or of the judgment against him, is 
 necessary. Cony v. Barrows, xlyi. 497. 
 
 See Attorney and Counsellob, 13. 
 Bailment, 23, 24. 
 Bills, &o., 88, 165. 
 CoEPOEATioN, 23, 38, 39. 
 Deed, 14, 15, 16, 18. 
 Error, 5, 6. 
 Evidence, 6, 8. 
 Grand Jurt, 3. 
 Insane Hospital, 5, 6, 7. 
 Insurance, 18, 32, 121, 122. 
 Landlord, &c., 25, 26, 27, 29, 30. 
 Lien, 17, 23. 
 
 Mortgage, 118, 119, 120, 121, 122, 124, 132, 135, 136. 
 Nuisance, 17. 
 Opeicer, 14, 30. 
 Pauper, 69-75, 78, 79, 80. 
 Town, 34'. 
 Wat, 61, 63, 64, 65, 67. 
 
 NUISANCE. 
 
 1. An action may be maintained as well for continuing a nuisance 
 erected by another, as for the original erection. Pillsbury v. Moore, 
 XLIT. 154. 
 
 2. A purchaser of property on which a nuisance is erected, is not liable 
 for its continuance, unless he has been requested to remove it. JPiUs- 
 hury V. Moore, xlit. 154. 
 
 3. "Where A. erected a dam on B.'s land, though B. may cause the dam 
 to be abated as a nuisance, he cannot compel A. to keep it in repair. 
 Bradford v. Gressey, xlv. 9. , 
 
 4. Although no person can maintain an action for a common nuisance, 
 unless he has suffered special damage thereby, yet, when one returning 
 home with a loaded team is stopped by obstructions placed in the high- 
 way, and compelled to take a more circuitous route, he is entitled to re- 
 cover damages from the person who placed the obstructions there. 
 Brown v. Watson, xlvii. 161. 
 
 5. Under our statute, damages cannot be recovered against a town in 
 such a case ; but the rights and remedies of parties injured, and the lia- 
 bilities of the person erecting the nuisance, under the common law, re- 
 main unaltered. Brown v. Watson, xltii. 161. 
 
NUISANCE. 
 
 369 
 
 6. For an injury to a private person, by a common nuisance, however 
 inconsiderable, he may maintain an action. Brown v.Watson, xLvn. 161. 
 GerrisJi v. Brown, li. 256. 
 
 7. Neither by the common law, nor by R. S., c. 17, § 8, relating to public 
 and private nuisances, does an action accrue to the wife, for the injury 
 she sustains, by the death of her husband, against the person through 
 whose neglect or fault the accident, which caused his death, occun-ed. 
 Lyons v. Woodward, xlix. 29. 
 
 8. The statute concerning nuisances, authorizing the court, in any 
 county, to issue an injunction, and make such orders and decrees for en- 
 forcing and dissolving it, as justice may require, does not confer any addi- 
 tional powers on the court in cases where the bill does not charge the 
 acts complained of as a nuisance. And. & Ken. B. B. Co. v. And. B. 
 B. Co., XLIX. 392. 
 
 9. To obstruct or occupy with any waste material, or to an unreason- 
 able, extent even with valuable property, a safe and convenient passage 
 through or by a dam, for rafts, logs, &c., on a floatable highway, is a pub- 
 lic nuisance. Veazie v. Dwinel, l. 479. Gerrish v. Brown, li. 256. 
 
 10. If a person obstructs a stream, which is, by law, a public highway, 
 by casting therein waste material, or by depositing material of any de- 
 scription, except as connected with the reasonable use of such stream, as 
 a highway, or by direct authority of law, it is a public nuisance, for which 
 he would be liable to an indictment, and to an action at law by any one 
 specially damaged thereby. Gerrish v. Brown, li. 256. 
 
 11. From evidence that a person uses his own property in such a man- 
 ner as to injure another in his property, comfort, or convenience, the jury 
 would be authorized to infer that he was guilty of nuisance. JVbrcross v. 
 Thorns, li. 503. 
 
 12. Jf a private citizen be guilty of a nuisance in making au excava- 
 tion in a public highway, he will be responsible for injuries arising there- 
 from during its continuance. Bortland v. Bichardson, liv. 46. 
 
 13. A tomb erected upon one's own land, is not necessarily a nuisance 
 to his neighbor ; but it may become such from locality and other extra- 
 neous facts. Barnes v. Sathorn, liv. 124. 
 
 14. Plaintiff proved that defendant's tomb, erected within forty-four 
 feet of the former's dwelling-house, contained, in 1856, nine dead bodies, 
 from which was emitted such an effluvia as to render his house unwhole- 
 some ; that, after an examination by physicians, the bodies were removed ; 
 that the tomb remained unoccupied thereafterwards, until 1865, when 
 another body was therein interred ; that the plaintiff's life was made un- 
 comfortable while occupying his dwelling-house, by the apprehension of 
 danger arising from the use of said tomb; and, that the erection and oc- 
 cupation of said tomb had materially lessened the market value of his 
 premises. In an action for damages on the foregoing facts. Held, a 
 nonsuit was improperly ordered. Barnes v. Hdthorn, liv. 124. 
 
 15. The provisions of c. 177 of the Public Laws of 1860, abating 
 nuisances, as amended by c. 187 of the Public Laws of 1863, requiring 
 the notice therein provided to be published " three weeks successively " 
 in a certain newspaper, is complied with, when such notice was published 
 in the weekly issue of such paper, dated the 15th, 22d, and 29th, re- 
 apectively, of the same month, although the hearing under such notice 
 was to take place on the 30th. Swett v. Sprague,vj. 190. 
 
 24 
 
370 OFFER TO BE DEFAULTED. OFFICER. 
 
 16. The order of notice provided by this statute, passed at a legal 
 meeting of the mayor and aldermen, is legal when the record shows that 
 the mayor was present and participated in the proceedings ; no separate 
 action of the mayor being necessary. Swett v. Sprague, lt. 190. 
 
 17. This statute requires no complaint to be made, but it is competent 
 for the mayor and aldermen to act upon their own previous observation 
 and knowledge of the unsafe condition of the building. Swett v. Sprague, 
 LV. 190. 
 
 18. And, if the notice ordered at the time of adjudication fails of ser- 
 vice, a new notice may be ordered and served, without commencing pro- 
 ceedings anew. Swett v. Sprague, lt. 190. 
 
 19. Chapter 177 of the Public Laws of 1860, and c. 187 of the Public 
 Laws of 1863, are constitutional. Swett v. Sprague, lv. 190. 
 
 See Mills, 26. 
 
 OFFER TO BE DEFAULTED. 
 
 Where the defendant, in an action of assumpsit, filed an account in 
 set-off, and thereafter offered to be defaulted for a sum less than twenty 
 dollars and legal costs, which was accepted, the plaintiff should, in order 
 to recover full costs, make it appear that his acceptance was by reason 
 of a reduction of his judgment, in consequence of the account in set-off. 
 Lawrence v. Ford, xlit. 427. 
 
 See Costs, 35-44. 
 
 OFFICER. 
 
 I. ATJTHOEITY AKD DITTY. 
 II. LIABILITIES, 
 ni. JUSTIFICATION. 
 
 AITTHOEITY AND DUTY. 
 
 (a) Who mat seeve. 
 
 (b) How it may be served. 
 
 (c) Specific iItstbuctions. 
 
 (d) Eetiten. 
 
 (e) In othbb bespects. 
 
 (a) Who may serve. 
 
 1. An officer de facto is one who executes the duties of an office un- 
 der some color of right, some pretence of title, either by election or ap- 
 pointment. Hooper v. Goodwin, xLvni. 79. 
 
OFFICER. 
 
 371 
 
 2. The acts of an officer de facto ave valid -ffhen they concern the pub- 
 lic or the rights of third persons, and they cannot be indirectly called in 
 question, in a suit to which such officer is not a party. It is only in a 
 suit against him that his right can be questioned. ITooper v. Goodwin, 
 XLViii. 79. 
 
 3. By R. S. of 1857, c. 140, § 14, the warden and deputy warden of 
 the State prison may serve legal processes within the "precincts" of the 
 prison. The precincts embrace not only the prison, but the grounds 
 connected therewith. Hix v. Sumner, l. 290. 
 
 4. A sheriff, as such, cannot legally serve an execution on his deputy, 
 even though directed to him. Dane v. Gilmore, li. 544. 
 
 5. The fact that he had served the writ on his deputy and made an. 
 attachment of personal property, before the deputy was appointed, does 
 not authorize him to serve the execution after such appointment. Dane 
 V. Gilmore, li. 544. 
 
 (b) How it may be served. 
 
 6. An officer, seizing property on execution, does not abandon the 
 seizure by leaving it in charge of a keeper, in a building to which the 
 debtor as well as the keeper has access, though the latter refuses to be- 
 come responsible for the property if burned or stolen. Ames v. Taylor, 
 XLIX. 3»1. 
 
 (c) Specific instructions. 
 
 7. Under R. S., c. 116, § 5, an officer is not required to arrest a debtor 
 on execution, unless a written direction to do so, signed by the creditor 
 of his attorney, is indorsed thereon, and a reasonable sum for fee is paid 
 or secured to the officer. Mills v. Gilbreth, xlvii. 320. 
 
 8. The direction, " Mr. Officer, attach suf 't," indorsed upon a writ, al- 
 though it is not signed, is sufficient to render an officer liable for neglect- 
 ing to attach property. Abbott v. Jacobs, xlix. 319. 
 
 (d) Return. 
 
 9. In an action against an officer for not maintaining possession of 
 personal property, which he has returned as attached, his return is evi- 
 dence of possession, that will render him liable, if the return was not 
 made under misapprehension, and the creditor omits no duty required on 
 his part, to fix the officer's liability. Wetherell v. Hughes, xi,t. 61. 
 
 10. When notice was required by statute to be given by an officer in 
 a "public newspaper," the omission in the officer's return of the word 
 "public" is not fatal, a "newspaper" being necessarily public. Bailey 
 V. Myrick, l. 171. 
 
 11. If au officer obtains leave to amend a return, and files an amended 
 copy with the clerk, but does not amend the original, and afterwards 
 obtains leave to withdraw his amended copy, the original stands without 
 amendment. Hanly v. Sidelinger, lii. 138. 
 
 See CoEPOBATioN, 23, 34, 35, 36, 37, 38, 56. 
 Teustee Peocbss, 10. 
 
372 OFFICER. 
 
 (e) In other respects. 
 
 12. An agreement by an officer, not to move property seized on exe 
 cution, and intrusting it to the custody of another, is a sufficient consid- 
 eration for an agreement by the latter, to keep the property safely, and 
 have it forthcoming at the sale on execution ; and for breach of such 
 agreement, the officer may maintain an action. Ames v. Taylor, xlix. 
 381. 
 
 13. The statute, directing that the appointment of a deputy-sheriff 
 shall be lodged in the clerk's office, does not require it to remain there. 
 After it has been recorded, the deputy may take it away. Dane v. Gil- 
 more, xi. 544. 
 
 14. After such appointment is recorded, it is notice to all of the fact of 
 the appointment. J)ane v. Qilmore, li. 544. 
 
 15. An officer, holding funds arising from the sale of goods attached,, 
 may deduct a reasonable compensation for the expense of keeping and 
 selling the same, before applying the balance to the satisfaction of the 
 execution, although the full amount of his charges is not taxed and al- 
 lowed in the plaintiff's bill of cost. Baldwin v. Hatch, liv. 167. 
 
 16. The burden of paying such charges is upon the debtoi; and not 
 upon the creditor. Baldwin v. Hatch, liv. 167. 
 
 17. An officer is not bound by the taxation of his fees in a suit in 
 which he is not a party. Aliter, with a party. Baldwin v. Hatch, liv. 
 167. 
 
 n. LIABILITIES. 
 
 (a) Of sheriffs, fok acts of thbik deputies. 
 
 (b) To CREDITOES. 
 (O) To DBBTOES. 
 
 (d) To OTHERS. 
 
 (e) Liability of deputies. 
 
 (a) Of sheriffs, for acts of their deputies. 
 
 18. A sheriff is liable for the false return of his deputy. Thayer v. 
 Boberts, xliv. 247. 
 
 19. Thus where an officer advertised the sale of an equity of redemp- 
 tion, to take place on Saturday, the 24th of June, which was Sunday, 
 and having ascertained his mistake, he amended by erasing 24th and in- 
 serting 23d, eight days before sale, and made return stating the time of 
 sale in the notifications to have been on the 23d. Held, that the sheriff 
 was liable for the false return to a subsequent attaching creditor, and that 
 the damages were the value of the property which such creditor would 
 have been enabled to apply in satisfaction of his execution. Thayer v. 
 Boberts, xnv. 247. 
 
 20. In an action of trespass directly against a sheriff, the declaration 
 will be supported by proof that the alleged trespass was committed by 
 one who was acting as his deputy, for whose misfeasance he is by law 
 answerable, although there be no such averment in the writ. Bratt v. 
 Bunker, xlv. 569. 
 
 21. A deputy-sheriff attached certain kinds of property, which attach- 
 
OFFICER. 
 
 373 
 
 ment the law authorized to be reoorded, and afterwards voluntarily gave 
 up the property and secured himself by taking a receipt therefor ; if he 
 neglect to deliver the property, on demand of an officer having the exe- 
 cution, the sheriff will be answerable for such default of his deputy. 
 Whitney v. Farrar, li. 418. 
 
 22. Lawful -money cannot be held derelict in the hands of a deputy 
 sheriff into whose possession it came by virtue of a search-warrant. ISFor- 
 ton V. N'ye, lvi. 211. 
 
 23. The refusal of the deputy to pay over money thus obtained, to 
 one entitled to receive it, on demand, is a misfeasance for which the 
 sheriff is liable. J!forton v. JVj/e, i,yi. 211. 
 
 24. To an action of trespass against the sheriff for such a misfeasance, 
 it is no defense, that the plaintiff secreted the money in the house of 
 another person, for the unlawful purpose of laying a foundation for a 
 prosecution for larceny against him ; that, thereupon he made a com- 
 plaint, under oath, to a trial justice, that the money was stolen from the 
 plaintiff's possession by such person and concealed in the latter's dwell- 
 ing-house ; that, upon a search-warrant duly issued thereon, the defend- 
 ant's deputy searched and found in such dwelling-house the money, 
 which, together with such pei-son was returned before a trial justice, who, 
 after examination,, discharged the respondent, and declined to make any 
 order concerning the money, but left the same in the hands of the depu- 
 ty ; and that the allegations in the complaint were false, and known to 
 be false by the plaintiff, when he signed and made oath to them. JVor- 
 ton V. Nye, lvi. 211. 
 
 25. Whether, if the deputy, after the discharge of the accused, bad re- 
 turned the money into the possession of him from whom it was taken, 
 this suit could have been successfully defended ; quwre. Norton v. Nye, 
 rvi. 211. 
 
 26. Or whether, if the money had been thus returned, the plaintiff 
 could, under the circumstances, recover it from the accused; quaere. 
 Norton v. Nye, lvi. 211. 
 
 (b) To creditors. . 
 
 27. A demand upon an officer for personal property attached on a 
 writ, within thirty days from the rendition Of judgment, is indispensable 
 to fix his liability, unless other facts are shown that supersede the neces- 
 sity of a demand. Wetherell v. Hughes, xlv. 61. 
 
 28. An officer attaching personal property that could not be removed, 
 and neglecting to keep actual possession of it or to file in the town 
 clerk's office the statute certificate, is released from liability to the credi- 
 tor, if the latter neglect to seasonably cause the property to be demand- 
 ed of the former, although it has been sold pending his suit, on an exe- 
 cution in favor of another creditor. Wetherell v. Hughes, xlv. 61. 
 
 29. The statute prerequisites, to enable a party to maintain a suit upon 
 a sheriff's official bond, are an injury suffered by the neglect or misdo- 
 ings of the sherifi; and damages ascertained by a suit against him, and 
 the rendition of judgment thereon. Cony v. Barrows, xlvi. 497. Dane 
 V. Gilmore, xlix. 173. Dane v. Gilmore, li. 544. 
 
 30. No notice to his sureties of his default, or of the judgment against 
 him, is necessary. Cony v. Barrows, xlvi. 497. 
 
374 OFFICEE. 
 
 31. A delay of several years in bringing a suit on his bond, after judg- 
 ment against him, will be no legal bar to the action, if there has been 
 no contract, consideration, or motive for the delay. Gony v. Barrows^ 
 XLVi. 497. 
 
 32. In an action against a deputy-sheriff for not keeping property at- 
 tached, he cannot impeach the judgment to lessen his own liability, or 
 for the benefit of the debtor. Willard v. Whitney, xlix. 235. 
 
 33. In such action, the value of the property attached, as stated in the 
 officer's return, and in a receipt taken for it, in the absence of all contrar 
 dictory proof, may be taken as the true value of the property for which 
 the officer is liable. Willard v. Whitney, xlix. 235. 
 
 34. To render the officer liable for his neglect to attach property, it is 
 not necessary that the execution should be put into the officer's hands, 
 within thirty days after the rendition of judgment, if, before judgment, 
 the debtor had become insolvent and had no property. Abbott v. Jacobs, 
 XLIX. 319. 
 
 35. If the execution issuing upon a judgment against the obligors of 
 a replevin bond cannot be collected or satisfied by reason of their insol- 
 vency, the officer will be liable for taking a bond with insufficient sure- 
 ties, to the person to whose benefit the bond, if good, would accrue. 
 Jfewbert v. Cunningham, l. 231. 
 
 36. In a suit against a sheriff for not serving an execution against his 
 deputy, which he had taken for service, he may show that he could not 
 legally serve the precept. Dane v. Gilmore, li. 544. 
 
 37. If, in a suit on the official bond of the sheriff, it is admitted that 
 the sheriff had no authority by law to serve the precept, his failure to 
 serve which was the neglect complained of, judgment will be rendered 
 for the defendants, although the plaintiff had recovered a judgment 
 against the sheriff for the same alleged default. Dane v. Gilmore, ll 
 544. 
 
 (c) To debtors. 
 
 38. If an officer unjustifiably refuse to offset an execution in favor of 
 the debtor against one in favor of the creditor, and both between the 
 same parties, he will be liable to the injured party. Monroe \. Matthews, 
 XLViii. 555. 
 
 39. An action cannot be maintained against an officer for attaching 
 property exempt from attachment, but confused with property not ex- 
 empt, unless the debtor sets apart oi- claimed to set apart the property 
 not liable to be attached. Smith v. Chadwick, n. 515. 
 
 40. Where personal property has been attached and appraised under 
 R. S., c. 81, § 47, a sale thereof by the officer, before four days from the 
 appraisement, is unauthorized, and he thereby becomes a tresspasser ab 
 initio. Knight v. Herrin, xlviii. 533. Everett v. Herrin, xlviu. 537. 
 
 (d) To others. 
 
 41. The law will not justify the officer in acting as the agent of the 
 attaching creditor, in bidding off' the property for him at an auction sale 
 of the officer. Knight v. Herrin, xlviii. 533. 
 
OFFICER. 
 
 375 
 
 42. An appraisal of goods of a mortgager, attached bj^ his creditors, 
 made under the authority of the attaching officer, is not binding on the 
 mortgagee as a rule of damages, in an action against the officer. Treat 
 y. Gilmore, xlix. 34. 
 
 43. Preparatory to bringing an action upon a sheriff's official bond, a 
 party may ascertain the amount of bis damages, when his claim is for a 
 wrongful attachment of his property, as well in trover as trespass. Dane 
 V. Gilmore, xlix. 173. 
 
 44. In such action he need not allege that the sheriff took the prop- 
 erty in his official capacity. Dane v. Gilmore, xlix. 173. 
 
 45. In a suit on the bond, he may show that the sheriff took the prop- 
 erty in his official capacity by evidence dehors the record of the former 
 suit. Dane v. Gilmore, xlix. 173. 
 
 46. If an officer sell the entire property instead of the individual debt- 
 or's share or interest in the goods of a firm, he will become a trespasser 
 ab initio. Moore v. Pennell, lii. 162. 
 
 47. Where an officer attached the goods of a firm composed of three 
 persons, on a writ against two of them only, and sold under the statute 
 the entire property in the goods attached. Held, that the firm might main- 
 tain trespass against him and reco\ er the full value of the goods sold. 
 Moore v. Pennell, lii. 162. 
 
 See Attoenbt & Coitnseloe, 11, 12. 
 
 (e) Liability of deputies. 
 
 48. A deputy-sheriff advertised the sale of an equity of redemption to 
 take place on the 24th of the month, which proved to be Sunday. Eight 
 days before the time of sale, he changed the date to the 23d, and in his 
 return stated that he notified and sold on the 23d. Held, That he was 
 liable in damages to a subsequent attaching creditor to the amount of 
 the value of the property which such creditor would have been en- 
 abled to apply in satisfaction of his execution. Thayer v. Roberts, xliv. 
 247. 
 
 49. When an officer has attached personal property on mesne process, 
 he will be discharged from his liability created thereby, unless the execu- 
 tion obtained upon the judgment, in the same action, be put into his 
 hands within thirty days after the rendition of the judgment, or unless 
 a demand be made, within that time, upon him to deliver the property 
 attached, by another officer having the execution. Plaisted v. Hoar, 
 XLT. 380. 
 
 50. An officer, who has seized intoxicating liquors under proceedings 
 in accordance with the statute, is not responsible for their deterioration 
 occurring without his fault, while they were in the custody of the law. 
 Robinson v. Barrows, xlviii. 186. 
 
 51. When a replevying officer takes a replevin bond in too small a sum, 
 the defendant in replevin may have an action on the case against the offi- 
 cer for the insufficiency of the bond ; or the defendant may regard the 
 taking as tortious, and maintain trespass against the officer; but he can- 
 not have an action of trespass in addition to the statute remedies. Tuch 
 V. Moses, Liv. 115. Parker v. Hall, lt. 362. 
 
 See Feaud, 43, 44. 
 LiQUOE, &c., 13. 
 
376 
 
 OEDEE. 
 
 III. JXTSTrPICATIOHr. 
 
 52. An officer Trho has seized intoxicating liquors under proceedings 
 in accordance with the statute, is not liable for official acts, although the 
 statute by virtue of which the warrant was issued is subsequently re- 
 pealed. Robinson v. Barrows, xlviii. 186. 
 
 53. In trespass against an officer, failingto justify the caption and con- 
 version of property attached on a writ, in the absence of proof that judg- 
 ment has been rendered in that suit, or the property has been applied to 
 the payment of the claim therein sued, he shows no cause for reduction 
 of damages. Knight v. Herrin, xlviii. 533. 
 
 54. In trespass against the sheriff, by the owner of the property ille- 
 gally sold on a writ by his deputy, his attachment and proceedings will af- 
 ford him no legal justification. Mverett Y.JSerrin, xlviii. 537. Knight 
 V. Eerrin, xlviii. 533. 
 
 55. R. S. of 1857, c. 81, authorizing an officer to sell, on mesne process, 
 personal property attached, does not apply where logs are seized on a 
 writ, brought to secure the statute lien thereon, in favor of one who 
 has rendered services in cutting and hauling them, if the owner of the 
 logs is not a party defendant in the writ; and such proceeding and sale 
 afford no justification to the officer, in a suit by the owner, against him, 
 for their value. Hinckley v. Gihnore, xlix. 59. 
 
 See Action, 28. 
 
 OFFICER DE FACTO. 
 
 See Opficbk, 1. 
 
 ORDER. 
 
 1. If one refuses to accept an order, but writes upon it at the same time 
 what may fairly be understood as an acceptance, he will be bound by it 
 as against a bona fide holder for consideration. Gallagher v. Mack, 
 xliv. 99. 
 
 2. In the absence of evidence as to when or how the plaintiff ob- 
 tained the order sued, where the acceptance would have been ineffect- 
 ual in the hands of the original payee, he must prove that he hecarae 
 the owner of it at the date of the acceptance, and for a valuable consid- 
 eration. Gallagher v. Black, xliv. 99. 
 
 3. Town and district orders are not considered to be commercial pa- 
 per in the hands oi bona fide indorsers for value, so as to exxlude evi- 
 dence of the legality of their inception ; and whoever receives them, 
 does so, subject to any legal defense, such as the want of authority in 
 the drawers or acceptors, whose agency, antecedently given or subse- 
 
OVERSEERS OF THE POOR. PARTITION. 
 
 377 
 
 quently adopted, is a fact to be proved in order to bind the principals. 
 Sturtevant v. Liberty, xlvi. 457. JEmery v. MariaviUe, lvi. 315. 
 
 4. Where an order was drawn by a school district building committee 
 upon the town treasurer and accepted by the latter, and thereupon it 
 was negotiated and transferred, in the ordinary course of business, and 
 for a valuable consideration to the plaintiff, who, after demand sued the 
 town, Held, that the treasurer was unauthorized to accept unless he 
 was in the receipt of funds belonging to the district, and that the plain- 
 tiff could not recover. Sturtevant v. Liberty, xlvi. 457. 
 
 5. What will be considered an admonition to the purchaser of a town 
 order, that a defense Would probably be set up. Chamberlain v. Gfuil- 
 ford, xLvn. 135. 
 
 . 6. Town orders, made payable to the order of the payee, and accepted 
 by the treasurer and indorsed by the payee, may be sued in the name of 
 the indorsee. Emery v. Mariaville, lvi. 315. 
 
 See School Disteict, 14. 
 
 OVERSEERS OF THE POOR. 
 
 1. It is the duty of overseers of the poor to relieve a person found in 
 their town in distress, although he may have property of his own, not 
 available for his immediate relief. Norridgewodk v. Solon, xlix. 385. 
 
 2. Overseers of the poor may relieve persons in distress in their town 
 in such manner as they deem best, acting reasonably and in good faith, 
 -by contracting for their board or otherwise. Glinton v". Jienton, xlix. 
 550. 
 
 See SciKB Facias, 8. 
 SoLDiEEs' Aid, 10. 
 
 PARTITION". 
 
 J. BY WHOM, AND OF WHAT, PARTITION MAT BE HAD. 
 
 n. WHO MAY RESIST, AND ON WHAT GROUNDS. 
 
 III. PROCEEDINGS, 
 
 ly. EFFECT. 
 
 I. BY WHOM, AND OF WHAT, PARTITION MAY BE HAD. 
 
 1. Where the commissioners, adjudging that a division of an estate 
 would greatly injure the whole, assigned the same to one of the heirs, 
 fixed the amount to be paid by him to the others respectively, and the 
 times of payment, and state, in their return, that the estate assigned 
 " shall be held as collateral security for " such payments, which were 
 
878 PARTITION. 
 
 paid in part only, Held^ that the conduct of the parties, the proceedings 
 in probate, and the long-continued possession under the assignment, 
 without complaint, indicate that it was clearly the intention of the par- 
 ties that the assignee should hold the estate as a freehold subject to be 
 defeated by non-fulfillment of the conditions; in which event the other 
 heirs might reenter and hold the same as collateral security for the suras 
 due to them ; but that before reentry, they cannot sustain a petition for 
 partition, being only in the nature of mortgagees out of possession, but 
 with the right of entry to foreclose, or hold possession for condition 
 broken. Robbins v. Gleason, xlvii. 259. 
 
 2. Where partition of real estate held in common is to be enforced by 
 legal process, the' whole tract so held must be partitioned at the same 
 time. JBigelow v. Ziittlefield, lii. 24. 
 
 3. One tenant in common cannot enforce partition of part only of the 
 common estate. JBigelow v. Littlefleld, lti. 24. 
 
 4. Nor does a conveyance by one tenant in common of his interest in 
 a part only of the land thus held, authorize a co-tenant to enforce parti- 
 tion of such part against the grantor, leaving the residue unpartitioned. 
 Bigdow v. Ziittlefield, lii. 24. 
 
 n. WHO MAY EESIST, AND ON WHAT GROUNDS. 
 
 5. The respondents to a petition for partition cannot avail themselves 
 of the provisions of R. S. of 1841, c. 145 (R. S. of 1857, c. 104), by which 
 tenants may be allowed compensation for buildings and improvements 
 made by them, or those under whom they claim. Thornton v. York 
 Sank, XLV. 158. 
 
 6. A., claiming to be tenant in common with B., filed his petition for 
 partition of twx) distinct parcels of land, described in his petition, in sep- 
 arate counts ; and, on the issue that B. was sole seized of both parcels, 
 the verdict was in his favor as to the first count, and for the petitioner as 
 to the second. At a subsequent term (as the record shows), it was con- 
 sidered by the court that the petitioner take nothing in the premises de- 
 scribed in the first count, and that partition be made of the premises de- 
 scribed in the second, and commissioners were appointed to make parti- 
 tion. The action was then continued from term to term ; and at the 
 term to which it was thus last continued, the petitioner appeared and 
 discontinued his petition on leave, and the respondent had judgment and 
 execution for costs. In an action on petition, brought by the same pe- 
 titioner against the devisee of the respondent in the former suit, for par- 
 tition of the premises described in the first count of the former petition, 
 Held, that such entry of discontinuance did not vacate the verdict and 
 judgment so rendered for the respondent in the former proceeding; and 
 that the judgment in that suit is a bar to the petitioner's recovering 
 against the respondent in this. Larrahee v. Hideout, xlv. 193. 
 
 7. The petitioners for partition had, prior to the present process, given 
 a power of attorney to one to " sue for and recover any right or inter- 
 est" which the principal might have to property in Maine, "or to com- 
 promise the sime with parties representing adverse interests.'' Said at- 
 torney had given a deed of the premises now sought to be partitioned 
 to the respondent. Held, that such deed is not suflicient to bar the 
 rights of the petitioners, unless it is shown that the grantee represented 
 
PARTITION. 379 
 
 "adverse interests," and that the deed was fjiven for the purpose of com- 
 promising the claims of the petitioners. Matthews v. Matthews, xlix. 
 586. 
 
 8. Twenty years' adverse occupation of real estate under recorded 
 deeds is an insuperable bar to the maintenance of a petition for parti- 
 tion, whatever may be the legal title of the petitioners. Brachett v. 
 Persons Unknown, liii. 228. 
 
 9. And a sole seisin in the respondent may be established by a pos- 
 session commenced twenty years before the trial, although less than 
 twenty years before the commencement of the suit. Brachett v. Per- 
 sons Unknown, liii. 238. 
 
 in. PROCEEDINGS. 
 
 10. If several parcels are embraced in a petition for partition, and the 
 petitioner's share in some of them is less than he claims, if the respond- 
 ents have no interest in these parcels in which he recovers less, the case 
 is not within R. S. of 1841, c. 121, § 14 (R. S., c. 88, § 10), and the peti- 
 tioner is entitled to costs. Thornton v. York BatJc, xlv. 158. 
 
 11. In a case of petition for partition, where, after the entry of judg- 
 ment for partition, against the co-tenants named in the petition, other 
 persons, claiming to be interested in the estate, were allowed to appear 
 and defend under R. S. of 1841, o. 121, § 9, they, by thus appearing, be- 
 came parties, and are bound to any subsequent judgment in the case. 
 Huntress v. Tiney, xlvi. 83. 
 
 12. Any person interested in the premises to be partitioned, comes 
 within the terms of the statute, notwithstanding such person might not 
 be bound by the final judgment in the case, if he had not appeared. 
 Huntress v. Tiney, xlvi. 83. 
 
 13. In a case within the purview of the statute, whether the person 
 moving for leave to appear and defend should be admitted, is a matter 
 of discretion with the presiding judge, whose decision will not be revised 
 by the full court. Huntress v. Tiney, xlvi. 83. 
 
 14. Where an interlocutory judgment had been entered by order of 
 the full court, against the co-tenants named in the petition, — and after- 
 wards, others, claiming to be tenants in common, were admitted to de- 
 fend, — the petitioner's motion for costs against the original respondents, 
 and for the appointment of commissioners, was properly denied, no final 
 judgment having been entered up. Huntress v. Tiney, xlvi. 83. 
 
 15. Where the co-tenants named in the petition contest the petitioner's 
 claim, they will, if the petitioner prevail, be liable to costs, to the time of 
 the interlocutory judgment ; but not afterwards, if they cease adversary 
 proceedings. Fisk v. Keerbe, xlvi. 225. 
 
 16. The report of commissioners cannot receive a construction more 
 favorable to the party to whom land is assigned, than the language of a 
 grantor in a deed. Munroe v. Stickney, xlviii. 458. 
 
 17. Where, in a partition of mill pvoperty, a particular mill is assigned 
 to one of the parties, he takes thereby the land on which the mill stands, 
 with the various easements upon the lands of his co-tenants, necessary 
 to the full and perfect enjoyment of his share. Munroe v. Stickney, 
 XLTin. 458. 
 
380 PABTITION. 
 
 18. But his right is to be construed in reference to the existing state 
 of the property, and he acquires by the partition no land not- covered by 
 the mill and its appendages, at the time of the partition, though such 
 land may be subject to euch easements as may be incident to his share. 
 Munroe v. Stickney, XLvni. 458. 
 
 19. All questions concerning the titles of the parties, and the nature 
 and proportions of their interests, are for the jury ; and the interlocutoiy 
 judgment, which is conclusive, should conform to the verdict. Allen v. 
 Hall, L. 253. 
 
 20. Commissioners have no judicial powers, like referees, to determine 
 any such questions. Allen v. Hall, l. 253. 
 
 21. When an interlocutory judgment has been rendered for a fractional 
 part of certain premises, described by boundaries, the petitioner is en- 
 titled to that proportion of all the real estate within the boundaries, 
 unless specially limited by exceptions and reservations. Allen v. EaU, 
 L. 253. 
 
 22. Commissioners may determine the location and boundaries thereof; 
 and, if such question arises, what the whole estate is, by distinguishing 
 personal from real estate. Allen v. Hall, l. 253. 
 
 23. If they err in deciding these questions, the court will not accept 
 their report, but recommit it. Allen v. Hall, l. 253. 
 
 24. Chapter 157 of the Public Laws of 1855 (R. S. c. 88, § 16), 
 changed the relative rights of tenants in common, where one has occu- 
 pied a part, in severalty, and has made improvements thereon. Allen v. 
 Hall, L. 253. 
 
 25. By that statute, if one has so held and made improvements with- 
 out "the consent" of his co-tenants, he cannot claim to have his share 
 so set out as to embrace within his portion such improvements, but he 
 may be compelled to take some other part of the estate. Allen v. Hall, 
 Tu. 253. 
 
 26. Still, he is to have the entire benefit of the improvements made 
 by him ; and if not specially assigned to him, he shall have their value 
 over and above his share of the common property. Allen v. Hall, l. 
 253. 
 
 27. If he has had exclusive possession of any part of the premises, "by 
 the consent" of the co-tenants, and has made improvements thereon, he 
 is entitled to have such part assigned to him, unless, exclusive of the im- 
 provements, it exceeds his share. Allen v. JSall, l. 253. 
 
 28. The questions arising under this statute, as they refer to the indi- 
 ■vidual interests and proportions of the parties, must be determined by 
 the jury before the interlocutory judgment ; and the result should be in- 
 corporated in the judgment, that the proper directions may be given in 
 the warrant of partition. AUen v. HMl, l. 253. 
 
 29. If matters which they have no authority to decide are submitted 
 to the commissioners under the instructions of the presiding judge, excep- 
 tions cannot be taken thereto at a subsequent term. Allen v. HaU, l. 
 253. 
 
 30. A petition for partition, which describes the premises as " a parcel 
 of land situate in B., in the county of S., and bounded as follows, viz.: 
 Beginning at a spruce tree in the wall, near Freeman's field, so called. 
 
PARTNERSHIP. 
 
 381 
 
 thence north, sixty-eight degrees west, to N. river, as surveyed by T. B., 
 March 15, 1849, thence beginning at said spruce tree and running south- 
 erly by the west line of the Freeman field, as now fenced to low-water 
 mark, tlience easterly, northerly, and westerly to N". river, and by the river 
 to the B. line," is void for indetiniteness, and no valid judgment can be 
 rendered upon it. Swanton v. Orooker, lii. 415. 
 See Amendment, 23. 
 DowBE, 43. 
 
 IT. EFFECT. 
 
 31. When final judgment has been rendered on a petition, and then a 
 review granted, and precisely the same partition made and judgment 
 rendered on the review as originally, the former judgment is not thereby 
 affected. Dyer v. Wilbur, xlviu. 287, 
 
 See Bond, 18. 
 
 PARTNERSHIP. 
 
 I. WHAT DOBS, AND WHAT DOES NOT, CONSTITUTE A PAET- 
 
 NERSHIP. 
 n. POWERS AND LIABILITIES OF PAETiJ^EES. 
 III. REMEDIES AGAINST PAETNEES AND PAETNEESHIP PEOP- 
 
 BETY. 
 rV. PLEADINGS. 
 T. EVIDENCE. 
 
 L WHAT DOES, AND WHAT DOES NOT, CONSTITUTE A PAET- 
 NEESHIP. 
 
 1. A partnership, with all its incidents, may be created without articles 
 in writing. Buffum v. Buffum, xlix. 108. 
 
 2. Where two parties entered into a written contract to cut timber, 
 one to furnish money, teams, and supplies, and the other his own services ; 
 the latter to have one-fourth of the profits, and the former three-fourths, 
 together with stumpage and interest on his advances ; this did not con- 
 stitute a copartnership, if one of the parties had not, by the terms of the 
 contract, an unqualified right to dispose of his own share of the lumber, 
 nor any right to dispose of the remainder on any terms whatever. Bra- 
 ley V. GoMard, xlix. 115. 
 
 n. POWERS AND LIABILITIES OF PAETNEES. 
 
 (a) As IT BBSPECTS THE PAUTNEBSHIP PKOPEETT. 
 
 (b) As IT BBSPECTS EACH OTHBE. 
 
 (O) How TAB ONE CAN BIND THE FIKM. 
 
382 PAETNEKSHIP. 
 
 (a) As it respects the partnership property. 
 
 3. If one member of a firm, in pui'chasing property, so conducts himself 
 as to lead the vendor to believe that the former is acting for the firm, 
 and the firm take the property so purchased and intermingle it with their 
 own property of the same kind, and sell the whole together, without no- 
 tice that any one of the firm owns any part thereof in severalty, the pur- 
 chaser is liable to the firm alone for the price. The member claiming 
 exclusive title, could not maintain an action in his own name alone for 
 any part of the price. White Mountain Bank v. West, xlvi. 15. 
 
 4. In equity, the creditors of an insolvent copartnership have a right 
 to the payment of their claims out of the partnership property, superior 
 to the right of creditors of an individual member. Crooker v. Grooker, 
 XLVI. 250. 
 
 5. All the members of a copartnership have a joint interest in its prop- 
 erty, while the interest of each, as a separate member, is his share of the 
 surplus remaining after the payment of the partnership debts. Crooker 
 V. Crooker, xlvi. 250. 
 
 6. And the implied trust or pledge, which each member has, that its 
 property shall be ajjplied to the payment of its debts, extends as well to 
 the real estate purchased for partnership uses, with its funds, as to stocks, 
 chattels, or debts, notwithstanding the real estate may have been con- 
 veyed by such a deed, as under our statutes, would, in law, render the 
 partners tenants in common. Crooker v. Crooker, xlvi. 250. Buffum 
 V. Bvffum, xlix. 108. 
 
 7. Such real estate will be applied, if necessary, to the payment of 
 partnership debts, including the balance due any partner on final settle- 
 ment. Buffum, V. Buffum, xlix. 108. 
 
 8. Improvements upon land owned by partners as tenants in common, 
 made with partnership funds, are partnership property. Lane v. Tyler, 
 XLIX. 252. 
 
 9. When the payee of a note of a copartnership, given during its ex- 
 istence, for a copartnership debt, exchanges it, after a dissolution of the 
 firm, for the several note of each member thereof, for his share of the 
 original note, such payee has a precedence over partnership creditors, as 
 to the separate property of each member, which a court of equity will 
 enforce ; but he has no priority of claim upon the partnership property. 
 Crooker v. Crooker, lii. 267. 
 
 10. If one copartner has paid more than his share of the partnership 
 debts, he has a claim upon the partnership property, whicli, in equity, 
 is superior to the claims of the creditors of his copartners individually. 
 Crooker v. Crooker, lii. 267. 
 
 See Equity, 166. 
 Estoppel, 25. 
 
 (b) As it respects each other. 
 
 11. Where one copartner furnishes another funds, which the latter 
 ought to have furnished as a part of the capital stock, the former may 
 recover the same in assumpsit, before the final settlement of the pai't- 
 nership business. Wright v. JSastman, xliv. 220. 
 
PAETNERSHIP. 
 
 383 
 
 12. For a final balance, assumpsit may be maintained after the whole 
 partnership business lias been settled, and not before. Wright v. East- 
 man, xLiv. 220. Lane v. Tyler, xlix. 252. 
 
 13. Where there was no money originally paid by either party to a 
 copartnership, but the capital stock consisted of accommodatiun paper, 
 originally between the parties, but subsequently renewed and kept alive 
 by the credit of another house, and it did not appear distinctly by whom 
 it was ultimately paid, it is too remote from the original transaction, even 
 if paid by the plaintiff, to authorize him to maintain assumpsit as for 
 money advanced beyond his proportion of the copartnership stock. 
 
 Wright v. JEastman, xlit. 220. • 
 
 14. Generally a partner cannot sue his copartners at law upon any 
 claim growing out of partnership transactions and involving partnership 
 interests. Lane v. Tyler, xlix. 252. Molyoke v. Mayo, l. 385. 
 
 15. But he may sue his copartner upon an agreement which is not so 
 far a partnership matter as to involve the partnership accounts ; and in 
 all other cases in which the rendition of judgment will be a bar to any 
 other suit growing out of the partnership transactions. Lane v. Tyler, 
 XLIX. 252. 
 
 16. In case of fraud or mistake in the settlement of partnership ac- 
 counts, the remedy of the aggrieved partner is by bill in equity. Hol- 
 yoke V. Mayo, l. 385. 
 
 17. Although partners may adjust one partnership transaction sepa- 
 rately, leaving all others unsettled, and an action would lie for a balance 
 found due to one of them in that particular transaction ; yet, if there are 
 various unadjusted matters between the partners, the court will not al- 
 low an action to be maintained for the ascertained balance, leaving the 
 other matters to be settled by a suit in equity, but all the mistakes or 
 errors must be heard and adjudicated by the same court, and that a court 
 of equity. Solyoke v. Mayo, i.. 385. 
 
 18. If it appears that, on a general settlement of partnership accounts, 
 one partner remitted a certain sum due him on the books, and afterwards 
 an error be discovered of a less amount, if its correction would reduce the 
 sum remitted, it will be considered as offset, and an action to recover the 
 amount will not be sustained. Solyoke v. Mayo, l. 385. 
 
 19. Where a settlement of a partnership account was made at a cer- 
 tain date, both parties being present, and having their books before them, 
 one partner will not be allowed to come into court afterwards with a 
 claim that the settlement was made only to a date a month or two prior, 
 and that the charges and credits between the two dates were by mistake 
 or fraud omitted. Holyoke v. Mayo, l. 383. 
 
 20. If copartners enter into a contract for a settlement to be made at 
 a subsequent date on certain terms, and one of them fails to fulfill his 
 part of the contract, the other may maintain an action at common law 
 for damages for the breach. Solyoke v. Mayo, l. 385. 
 
 21. But whether such a contract be performed or not, the remedy of 
 one aggrieved is by action at common law or suit in equity, and not by 
 assumpsit. Solyoke v. Mayo, l. 385. 
 
 22. If the plaintiff (one of the members of a firm including the de- 
 fendant and others, each of which purchased and held lands for the gen- 
 eral objects of the copartnership), sell his entire interest in the partner- 
 
384 PAETNEKSHIP. 
 
 ship property, including the lands, to the defendant, taking back a bond 
 reciting the sale and conditioned to " save the plaintiff harmless from aU 
 the liabilities of said firm and growing out of said firm ; " a judgment ren- 
 dered against all the members of the firm, on a petition for partition of 
 one not a member thereof, commenced before, but determined after, such 
 sale, and defended by an attorney retained by the defendant, in the name 
 of all the members, is covered by the bond ; and, if the plaintiff pay such 
 judgment, he will be entitled to recover the amount thus paid, in an ac- 
 tion upon said bond. Bunton v. Dunn, liv. 152. 
 
 (c) How far one can bind the firm. 
 
 23. The plaintiff received goods from the store of B. & D., under an 
 agreement with the defendant, B.'s agent, that they .should be accepted 
 in part-payment of bis demand against the defendant. The goods were 
 charged to plaintiff on the firm's books, which were afterwards assigned 
 to a creditor of the firm. The assignee and D. claimed to hold the plain- 
 tiff therefor. Held, that the defendant alone was responsible to the finn, 
 for the goods. Cumner v. Butler, xlv. 434. 
 
 24. An express promise by a partner after dissolution of the partner- 
 ship, does not bind his copartner, when made to one having knowledge,, 
 of the dissolution. Bane v. Tyler, xlix. 252. 
 
 25. A contract made by a copartner in the name of the firm, will pri- 
 ma facie bind the firm, unless it is outside of the business of the firm. 
 StocJcwell V. Dillingham, l. 442. 
 
 26. The firm is liable for the false and fraudulent representations of 
 one of its members relative to matters falling within the scope of its busi- 
 ness, and much more so when the representations are true ; and an in- 
 nocent third party has a right to regard such representations as true, and 
 to act upon them. Stockwell v. Dillingham, l. 442. 
 
 27. When one of a firm borrows money, not expressly on his individu- 
 al credit, and it is shown that it was borrowed for and appropriated to 
 the use of the firm, the firm is liable. Stochwell v. DilUngham, l. 422. 
 
 28. Where one partner contracts a debt, representing to the creditor 
 that it is for the benefit of the firm, if the contract is within the scope of 
 their business, the firm is liable, whether the, representations were true 
 or false. StocJcwell v. Dillingham, l. 442. 
 
 29. One partner cannot bind his copartners by indorsing, in the firm 
 name, a note given after the dissolution of the partnership, to renew a 
 note given before the dissolution. I/amhermaris Bank v. Pratt, li. 563. 
 
 30. If one partner indorse a note with his own name, given after dis- 
 solution, but running to the firm, he is liable thereon in an action by the 
 indorsee. BumhermarCs Bank v. Prutt, li. 563. 
 
 See Equity, 188, 189. 
 
 IV. REMEDIES AGAINST PAETNERS AND PARTNERSHIP PROP- 
 ERTY. 
 
 31. The share of one of several partners in the goods of the firm, 
 may be attached and sold on execution for his individual debt ; and, as 
 
PAUPEE. 
 
 385 
 
 incidental to this right, the officer may deliver the whole of the goodi* 
 seized to the purchaser. Moore v. Penndl, lii. 162. 
 
 See Assignment, 16. 
 Equity, 98, 103, 105. 
 Teespass, 35. 
 
 V. EVIDENCE. 
 
 32. If one is sought to he held as a memher of a firm through the 
 holding of himself out as such, the evidence will not be restricted to 
 the transactions between the parties. His declarations are admissible 
 to show, not only that he held himself out as a partner, but that the 
 fact has been one of such general notoriety in the community, that the 
 plaintiff may be presumed to have given the credit on the strength of 
 it. Wood V. Pennell, li. 52. 
 
 33. A single admission to the plaintiff, with proof that he gave the 
 credit upon it, will render the party liable, without any evidence of his 
 general conduct. Wood v. Pennell, li. 52. 
 
 34. In assumpsit against a surviving partner, promissory notes made 
 long after the contraction of the debt in suit, signed by the deceased, 
 using his name and Co. — name of the alleged firm — are not admissible 
 to prove the partnership, when it is not proposed to show that the de- 
 fendant had any knowledge of such notes, until after the death of the 
 deceased. McLellan v. Pennell, lii. 402. 
 
 See Estoppel, 39. 
 
 PASSENGER. 
 See Bailment, 25, 26, 28, 29, 30, 31, 32. 
 
 PAUPER. 
 
 I. SETTLEMENT. 
 II. LIABILITIES OF TOWNS. 
 IIL ACTIONS. 
 IV. EVIDENCE. 
 
 1. SETTLEMENT. 
 
 (a) By derivation. 
 
 (b) INCOEPORATION, DIVISION, AND ANNEXATION OF TOWNS. 
 
 (o) Eesidenoe five YEABS. 
 
 (d) DOMICIL. 
 
 25 
 
386 PAUPEK. 
 
 (a) By derivation. 
 
 • 1. A child, having a derivative settlement in the town oi'S. V., from 
 that of his father, who was a pauper, will not gain a new settlement in 
 S. by virtue of being bound out, until he should become of age, to an 
 inhabitant of S., with whom he lived for the term of ten years. Such 
 child was not thereby emancipated. Frankfort v. New Vineyard, xlviii. 
 565. 
 
 2. A person non compos, not residing with his father, nor supported 
 by him, does not follow a new settlement acquired by the latter, after 
 the former is of age. Corinth v. Bradley, li. 540. 
 
 3. An illegitimate, born in this State in 1817 or 1818, would take, by 
 the statute of Mass., of 1794, c. 34, then in force, the settlement of his 
 mother at that time, if she had any in this State. Hallowell v. Au- 
 gusta, Ln. 216. 
 
 4. If the mother acquired a settlement in this State by residing here 
 March 21, 1821, — the date of the settlement act, — it would not affect 
 the settlement of her illegitimate son. Hallowell v. Augusta, lii. 216. 
 
 5. By R. S. of 1857, c. 24, § 1, a married woman has the settlement 
 of her husband, if he has any in the State; if he has not, her own set- 
 tlement is not affected by her marriage. Hallowell v. Augusta, lii. 216. 
 Howland v. Burlington, Lin. 54. Bucksport v. Rockland, lvi. 22. 
 
 6. A man having his settlement in the defendant town, married a 
 wife in 1844, and in 1845 abandoned her and removed to Ohio, where 
 he obtained a divorce, in 1849, and where he has since i-emained. In 
 1846, the wife married another man by whom she had several children, 
 for whose support, as well as her own, this action was brought by the 
 town in which, after the second marriage, the parties with their chil- 
 dren, resided seven consecutive years. Held, (1) That the former mar- 
 riage established the settlement of the pauper mother in the defendant 
 town ; (2) That the second marriage being void, her settlement was 
 not affected thereby ; (3) That notwithstanding the abandonment, she 
 could neither by marriage or residence acquire a new settlement, while 
 her former marriage relations remained unaltered ; (4) That the chil- 
 dren being illegitimate, had the settlement of their mother at the time 
 of their birth ; and (5) That the divorce would not affect the wife's 
 previous settlement. Howland v. Burlington, lhi. 54. 
 
 7. Where a wife married a second husband after being deserted by a 
 former, who subsequently obtained a divorce, this court will not pre- 
 sume that there was a remarriage of the second husband and wife, af- 
 ter the divorce of the former, in the absence of proof of knowledge on 
 their part, especially when all of the events are of recent date. Hovi- 
 land V. Burlington, liii. 54. 
 
 8. Minor children, and non compotes mentis not emancipated, are in- 
 capable of acquiring a settlement in their own right in any mode. 
 Frankfort v. iVei# Vineyard, XLvm. 565. Monroe v. Jackson, lv. 55. 
 
 9. The fact that a minor is bound out until he should become of age, 
 to an inhabitant of a town other than the one in which he had a deriva- 
 tive settlement from his father, and with whom he lived for the term of 
 ten years, will not constitute emancipation. Frankfort v. New Tine- 
 yard, XLVin. 565. 
 
PAUPER. 
 
 387 
 
 10. An unemanoipated non compos from infancy, will follow the set- 
 tlement of the father as well after he arrives of full age as before. 
 Gardiner v. Famiingdale^ xlv. 537. Monroe v. Jackson, lt. 55. 
 
 11. Such emancipation may be by the death of the parents. Gardi- 
 ner V. Farmingdale, xlv. 537. 
 
 12. A transfer, by the father, of all his property to another, who, in 
 consideration thereof, agreed to and did thereafter support the father 
 and his family, does not constitute an emancipation of a member who 
 has been non compos mentis from birth. Monroe v. Jackson, lt. 55. 
 
 13. By virtue of R. S., of 1857, c. 75, § 3, when, before his death, the 
 parents of an ante-nuptial child, intermarry and have other children 
 and adopt him into their family, he is thereby legitimate, and he de- 
 rives his settlement according to the rules governing that of legitimate 
 children. lAvermore v. Peru, lv. 469. 
 
 14. The marriage of a minor daughter with her father's consent con- 
 stitutes one mode of emancipation. What circumstances imply such 
 consent. Bucksport v. Rockland, lti. 22. 
 
 (b) Incorporation, division, and annexation of towns. 
 
 15. By special laws of 1849, c. 264, incorporating the town of Yar- 
 mouth from territory formerly a part of North Yarmouth, " together 
 with all the persons having a legal settlement thereon," those persons 
 whose legal settlement was at the time of the passage of the act, in that 
 part constituting North Yarmouth, but who at that time were inmates 
 of the poor-house upon that part constituting Yarmouth, and supported 
 by the original town, where they had been for more than five consecu- 
 tive years, immediately preceding the act incorporating the new town, 
 are not chargeable as paupers to the town of Yarmouth. Yarmouth v. 
 North Yarmouth, xliv. 352. 
 
 16. The language of the act, "together with all persons having a 
 legal settlement thereon," must be satisfied by referring to such persons 
 as by the operation of other laws would have a right to a support from 
 the town then incorporated, where it had previously an independent 
 existence. Yarmouth v. North Yarmouth, xliv. 352. 
 
 17. An agreement, made by the ofiicers of two towns, by way of set- 
 tling a pauper suit, that a part of the pauper family should thereafter 
 have their settlement and be supported in one of the towns, and the 
 remainder in the other, will not bind a portion of one of the towns af- 
 fected by the agreements which was thereafterwards incorporated into 
 a new town ; but such new town may assert all its rights as to the set- 
 tlement and support of any or all of the paupers. Veazie v. Howland, 
 xLvii. 127. 
 
 18. An act, dividing a town, incorporating a part of it into a new 
 town, and providing for the proportional support of paupers then charge- 
 able, does not affect the settlement of persons subsequently becoming 
 chargeable ; but their settlement is to be determined by the general law. 
 Clinton v. Benton, xlix. 550. Manchester v. West Gardiner, Lin. 523. 
 
 19. If, in case of such a division, the two towns, by agreement, ap- 
 portion the paupers by name between them, and support them accord- 
 ingly, — ^this does not affect the settlement of the paupers, although the 
 contract be binding. Clinton v. Benton, xlix. 550. 
 
388 PAUPER. 
 
 20. If one of such paupers, who has gained his settlement in the ter- 
 ritory not embraced in the new town, is, by the apportionment, assigned 
 to said new town for support, not only does his legal settlement remain 
 in the old town, but his children, born after the apportionment, have 
 their settlement there also, until he or they acquire a new one. Clinton 
 V. Benton, xlix. 550. 
 
 21. When part of a town is set off and incorporated into a new one, 
 resident paupers who had acquired a settlement in the old town, sub- 
 sequently have their settlement in the town in which they resided when 
 the act of incorporation took effect, unless the act makes different pro- 
 visions. Frankfort v. Winterport, li. 445. 
 
 22. The act incorporating the town of Winterport contains no pro- 
 visions in conflict with the principle. Frankfort v. Winterport, Li. 445. 
 
 23. When p^rt of a town is set off and incorporated into a new one, 
 and no provision is made in the act for the support of such paupers in 
 the old town as have no settlement in the State, they must be support- 
 ed by the town in which they are, when the support is given, and no 
 action can be maintained by one of the towns against the other for re- 
 imbursement. Winterport v. Frankfort, li. 447. 
 
 24. By R. S. of 1857, c. 24, § 1, when part of a town is set off from 
 it and annexed to another, the settlement of a person absent at the 
 time of such annexation is not affected thereby. Manchester v. West 
 Gardiner, Lin. 523. Castine v. Winterport, Lvi. 319. 
 
 25. Where the act, setting off a portion of one town and annexing it 
 to another provides that " all persons chargeable as paupers having a 
 legal settlement in the territory hereby set off " or " all paupers whose 
 legal settlement is upon said territory," shall, on the passage of the act, 
 have a legal settlement in the town to which the new territory is an- 
 nexed, the settlement of a person not "chargeable as a pauper" "on 
 the passage of the act " is not affected thereby. Manchester v. West 
 Gardiner, Liii. 523. Castine v. Winterport, lvi. 319. 
 
 26. The settlement of a pauper, who, at the time of the annexation, 
 was residing on the territoiy set off from the defendant town and an- 
 nexed to the plaintiff town, and then and there supported by the for^ 
 mer, was not changed by § 3, c. 226, of the Special Laws of 1863. 
 Monroe v. Frankfort, liv. 252. 
 
 27. And, where a pauper gained a new settlement by dwelling and 
 having his home in an unincorporated place, at the time when it was 
 incorporated into a town, the repeal of such act of incorporation does 
 not revive his former settlement. Monson v. Fairfield, lv. 117. 
 
 (c) Hesidencefive years, 
 
 28. A person, non compos from birth, whose parents are deceased, may 
 "reside" in a town so as to acquire a legal settlement therein. And if 
 he continue to reside in a town for five years together, after he is twen- 
 ty-one years of age, without receiving any support as a pauper from any 
 town, he will thereby gain a lawful settlement therein, in his own right. 
 Gardiner v. Farmingdale, xlv. 537. Corinth v. Bradley, li. 540. 
 Monroe v. Jackson, lt. 55, 
 
PAUPEK. 389 
 
 29. The insanity of a person does not prevent his continuous residence 
 in a town for five years, from operating to establish his settlement there- 
 in. Auburn v. Ilebron, xlviii. 332. Monroe v. Jackson, lv. 55. 
 
 30. If an insane person be removed to a town in which he had no 
 residence, by the direction of his guardian, to remain for no definite 
 period, and is there supported by his guardian for five successive years, 
 with no intention on the part of the guardian to remove him, the set- 
 tlement of the ward will be thereby fixed in that town. Auburn v. 
 Hebron, xlviii. 332. 
 
 31. Under the statute of March 21, 1821, an emancipated minor could 
 not fix his settlement in a town by five consecutive years' residence 
 therein ; for, by that statute, no minor could thus acquire a settlement. 
 Veazie v. Machias, xlix. 105. 
 
 32. Emancipated non compotes mentis may acquire a settlement in 
 their own right by a five years' residence. Gardiner v. Farmingdale, 
 XLV. 537. Auburn v. Ilebron, xlviii. 332. Corinth v. Bradley, li. 540. 
 Monroe v. Jackson, lv. 55. 
 
 33. To establish a settlement by the sixth mode, it must be shown 
 that the pauper had his home five successive years on the actual terri- 
 tory within the legal limits of the town. Ellsworth v. Gouldsboro^ 
 LV. 94. 
 
 34. Hence, the provision in R. S., of 1857, c. 24, § 22, that "persons 
 living in places not incorporated and needing relief, are under the care 
 of the overseers of the adjoining town," does not give to such persons 
 a legal settlement in such adjoining town, so that when they remove to 
 a distant town and there fall into distress, they become chargeable to 
 the adjoining town. Ellsworth v. Gouldsbord', lv. 94. 
 
 (d) Domicil. 
 
 35. Where a pauper, while temporarily absent from the place of his 
 domicil, forms an intention to remove to and reside in a third town, 
 but, instead of doing so, remains for a longer time at his temporary 
 abode, — this is not sufficient to break up the continuity of his resi- 
 dence in the place of his domicil. Bangor v. Brewer, xlvii. 97. 
 
 36. The residence of a person in a town is not changed by an ab- 
 sence for a temporary purpose only, if he has sufficient intelligence to 
 form and retain the intention of leaving for a temporary purpose and 
 of returning, and does return, in accordance with such intention. 
 Corinth v. Bradley, li. 540. 
 
 See Domicil. 
 
 11. LIABILITIES OF TOWNS. 
 
 37. Towns are, by the statute, bound to furnish actual relief, after 
 notice, to persons in need thereof. Perley v. Oldtown, xlix. 31. Veazie 
 V. Chester, liii. 29. 
 
 88. A person actually destitute, is entitled to relief, although he 
 may have property of his own, not available for his immediate relief. 
 Nbrridgewock v. Solon, xlix. 385. 
 
390 PAUPEE. 
 
 39. A person in jail on execution, under such circumstances, is en- 
 titled to relief, although he refuses to make oath that he is unable to 
 support himself in jail, and has not property sufficient to furnish se- 
 curity for his support. Nbrridgewock \. Solon, xlix. 385. 
 
 40. In such case, the town in which he has his legal settlement is lia- 
 ble to the town furnishing the relief, for the amount furnished. Nor- 
 ridgewock v. Solon, xlix. 385. 
 
 41. Towns called upon to supply paupers are entitled to the avails of 
 their industry, and are required to contribute only when that industry 
 and the means of the paupers fail to afford a comfortable support. Clin- 
 ton V. Henton, xlix. 650. 
 
 42. Where one town was by agreement bound to support the pauper 
 and his wife, and the settlement of his children was in another, the lat- 
 ter may be held to pay for supplies furnished for the children, although 
 the father, by his industry, is able to support himself and wife, provided 
 he can do no more. Clinton v. Henton, xlix. 550. 
 
 43. If supplies, furnished bona fide by overseers to a person destitute, 
 are in fact used for relief of his destitution, or are received for such pur- 
 pose, his unwillingness to receive them as pauper supplies, or his protest 
 against so regarding them, or his declaration that he shall not so regard 
 them, cannot prevent them from being so regarded and from drawing 
 after them all of their legal consequences. Veazie v. Chester, liii. 29. 
 
 44. If when supplies are furnished, the overseers distinctly agree that 
 the supplies are not, and shall not be regarded as pauper supplies, but 
 as a gift or loan to one in need, whether to be returned in kind or paid 
 for, or not, and they are thus received, the party so receiving will not be 
 legally affected thereby, nor will the town acquire any rights thereby in 
 its relation to other towns. Veazie v. Chester, liii. 29. 
 
 45. Same results would not follow by reason solely of a protest or un- 
 willingness on the part of the person furnished, to receive needed relief, 
 or from any declaration that he does not or shall not regard the supplies 
 in that character, but simply as a loan to be refunded. Veazie v. Chester, 
 ism. 29. 
 
 46. If supplies are in fact furnished and received as pauper supplies, 
 the statute is complied with, and their legal consequences follow. The 
 promise to repay and actual repayment do not change the nature of the 
 relief Veazie v. Chester, liii. 29. 
 
 47. Supplies furnished to a soldier and his family, by a town in which 
 they fell into distress, while there temporarily on a visit, cannot be con- 
 sidered as furnished under Public Laws of 18(52, c. 127, or of 1863, c. 205. 
 Expenses incurred for supplies thus furnished may be recorded of the 
 town in which such soldier had his legal settlement. Bremen v. Brewer, 
 Liv. 528. 
 
 48. Section 6 of c. 63, of the Public Laws of 1861, requiring towns to 
 make proper provision for the support of soldiers' families residing there- 
 in, and prohibiting any disabilities therefrom, was applicable only to the 
 first ten regiments. Orland v. Ellsworth, lvi. 47. 
 
 49. Chapter 127, of the Public Laws of 1862, approved March 18, was 
 prospective in its operation. Orland v. Ellsworth, lvi. 47. 
 
 50. Supplies furnished the families of soldiers of any other than the 
 first ten regiments before March 18, li62, must be deemed pauper sup- 
 plies. Orland v. Ellsworth, lvi. 47. 
 
PAUPEK. 391 
 
 in. ACTIONS. 
 
 (a) Between towns. 
 
 (b) Notice. 
 
 (C) INDIVIDTTALS AGAINST TOWNS. 
 
 (d) Towns against individuals. 
 
 (a) Between towns. 
 
 51. Where the officers of a town have committed to the hospital au 
 insane pauper belonging to another town, a right of action to recover 
 the hospital expenses of the town where the pauper belongs does not 
 accrue until the sums due to the hospital are paid. Bangor v. Fairfield, 
 XLVI. 558. 
 
 52. Whether an agreement made by the officers of two towns, by way 
 of settling a pauper suit, that a part of the pauper family should there- 
 after have their settlement and be supported in one of the towns, and 
 the remainder in another, is binding on those towns, as a contract for the 
 future support of the paupers, qumre. Veazie v. Howland, xlvii. 127. 
 
 53. In an action for supplies furnished to a pauper, who is proved to 
 have once had his settlement in the defendant town, the onus is on that 
 town to prove _ a subsequent settlement gained elsewhere. Starhs v. 
 New Portland, xbvh. 183. 
 
 54. In an action by one town against another for supplies furnished to 
 a pauper, the defendant town cannot file in set-off a demand against the 
 plaintiff town for the support of paupers belonging to the latter. Au- 
 gusta V. Chelsea, xlvii. 367. 
 
 55. A demand for the support or relief of paupers originates solely in 
 positive provisions of the statute, and has in it none of the elements of 
 a contract express or implied. Augusta v. Chelsea, xltii. 367. 
 
 56. In an action for pauper supplies furnished to a certain man and 
 woman, the legal settlement of the man was admitted to have been in 
 the defendant town, at the time the supplies were furnished, and the 
 only question was in regard to the settlement of the woman. Held, that 
 the plaintiffs, by proving the prior due solemnization of a marriage be- 
 tween the man and woman, made out a prima facie case. Harrison v. 
 Lincoln, xlviii. 205. 
 
 57. They are not bound in the first instance to prove affirmatively, 
 that the parties were capable of contracting a legal marriage. Harrison 
 V. Lincoln, xlviii. 205. 
 
 58. But the validity of the alleged marriage may be impeached by ev- 
 idence of a former marriage and the continued life of both parties. Har- 
 rison V. Lincoln, xlviii. 205. 
 
 59. If the defendants would avoid the effect of the apparently legal 
 marriage, they must prove the facts which will invalidate it. Harrison 
 V. Lincoln, xlviii. 205. 
 
 60. If the defendants show that B. was legally married to a person 
 other than A. before the alleged marriage to A., and that the former 
 husband was alive less than seven years before the second marriage, the 
 latter, by force of R. S. of 1811, c. 87, § 4, and c. 160, §§ 5 and 6, will be 
 held invalid, unless the plaintiffs prove the death [or divorce] of the 
 
392 PAUPER. 
 
 former husband before the second marriage. Sarrison v. Lincoln, 
 XLviii. 205. 
 
 61. Not only the expenses incurred for the support, but also those for 
 burial of the pauper, are recoverable of the town in which he had his 
 legal settlement,. if the town incurring them has complied with the stat- 
 ute. Ellsworth V. jSoulton, xlyiii. 416. 
 
 62. A town liable for expenses incurred for the support of a pauper, 
 is not relieved from its liability by reason of the death of the pauper. It 
 is immaterial why there was no removal, whether from sickness, death, 
 or other sufficient cause. Ellsworth v. JSoulton, xlvui. 416. 
 
 63. In the trial of an action of assumpsit for supplies furnished a pau- 
 per, the admission, by the defendants, that the pauper (who was a fe- 
 male), fell into distress as alleged ; that the supplies were furnished ; that 
 notice was seasonably sent and received ; and that the pauper had her 
 legal settlement in the defendant town at the time of her marriage; 
 makes out a prima facie case for the plaintiifs, and the burden is upon 
 the defendants to show that the husband had a settlement in this State. 
 Sallowell V. Augusta, lii. 216. 
 
 64. By R. S. of 1857, c. 143, § 20, no person shall suffer any of the 
 disabilities incident to pauperism, nor be thereafter deemed a pauper, by 
 reason of being supported in the insane hospital. Jay v. Carthage, i,in. 
 128. 
 
 ,65. By R. S. of 1857, c. 24, § 25, a recovery against a town for sup- 
 plies furnished a pauper, estops such town from disputing the settlement 
 of the pauper, with the town recovering, in any future action brought 
 for the support of the same pauper. Jay v. Carthage, liii. 128. 
 
 66. In an action by one town against another for supplies furnished 
 a pauper whose settlement is alleged to be in the defendant town, the 
 plaintiffs are estopped by the record of a default in a former suit by the 
 plaintiff against the defendant town, containing a count for the expenses 
 of commitment and support of the alleged pauper at the insane hospital, 
 and also a count in common form for supplies to the same pauper. Jay 
 V. Carthage, liii. 128. 
 
 67. The town in which a soldier has his settlement, having, upon a 
 suit brought in good faith therefor, voluntarily paid the town in which 
 his family has its residence for aid furnished such fainily while he was in 
 the military service of the U. S., under a mistaken supposition that such 
 aid was in the nature of pauper supplies, Hdd, that the money thus 
 paid cannot be recovered back. Livermore v. Peru, lv. 469. 
 
 68. By the Pub. Laws of 1864, c. 257, no aid furnished to a soldier's 
 family within one year next after he was killed in battle could be recov- 
 ered by the town in which such family resided, against the town in 
 which he had his settlement. Yerona v. Penobscot, lvi. 11. 
 
 (b) Notice. 
 
 ■69. Where a town had relieved persons fallen into distress therein, 
 and legal notice thereof had been given to the town in which such per- 
 sons had their legal settlement, if, afterwards, another notice be given, 
 the latter will be no waiver of any right acquired under that previously 
 fgiven. New Vineyard v. Phillips, xlv. 405. 
 
PAUPER. 393 
 
 70. If, after due notice, the town receLving it pays for all supplies thus 
 far furnished, a new notice is necessary in order to charge the same town 
 for further supplies to the pauper. Bangor v. Fairfield, xlvi. 658. 
 
 71. The statute which provides that the notice shall contain a request 
 to remove the pauper^ could not have been intended to apply to a case, 
 where the death and burial of the»paupor had occurred, before the time 
 allowed to give the notice had elapsed, and the notice had been actually 
 given. Ellsworth v. Soulton, xlviii. 416. 
 
 72. Nor is the notice insufficient for the want of the date, if it be in 
 all other respects regular and suffi^cient, it being proved that it arrived 
 at the post-office in the town chargeable, before the expiration of tha 
 three months from the time the supplies were furnished and the funeral 
 expenses paid. Ellsworth v. Houlton, xlviii. 416. 
 
 73. The statute requires the owners thus notified, to return, within 
 two months, a written answer, stating their objections to the removal of 
 the pauper, if he has not been removed. The town giving notice was 
 entitled to know whether the pauper's settlement was admitted or con- 
 tested; and the notice should have been answered, though it contained 
 no request for removal. Ellsworth v. Houlton, xlviii. 416. 
 
 74. No answer having been returned, the town thus notified is estop- 
 ped from contesting the settlement of the pauper in that town, in a suit 
 brought to recover the expenses previously incurred for his support and 
 funeral. Ellsworth v. Hoidton, xlviii. 416.- 
 
 75. Where supplies are furnished occasionally and not continuously, 
 only one notice need be proved to enable the plaintiff town to recover 
 for the supplies furnished three months before such notice down to the 
 date of the writ; provided the action be commenced within two years 
 next after the cause of action accrued. Veazie v. Howland, liii. 38. 
 Veazie v. Howland, Lin. 39. 
 
 76. When no answer is returned by the defendant town, the " cause 
 of action" is deemed to "accrue" at the expiratioji of two months from 
 the time the notice was given. Veazie v. Howland, liii. 39. 
 
 77. When an answer denying their liability is returned, the "cause of 
 action " is deemed to " accrue " at the time the answer is received by the 
 plaintiff to'vn. Veazie v. Howland, liii. 39. 
 
 78. For every new action for pauper supplies furnished by a town, a 
 new notice must be given within two years and two months at most be- 
 fore the suit is commenced, even though a former action between the 
 same parties for the support of the same pauper is still pending. Veazie 
 V. Howland, liii. 39. 
 
 79. One town cannot give such a " written notice " as will charge an- 
 other town for pauper supplies furnished 'subsequent to such notice, un- 
 less actual pauper supplies had been furnished prior thereto. Verona v. 
 J'enohscot, lvi. 11. 
 
 80. A notice of aid fui-nished a soldier's family within the year after 
 the death of the soldier, aud before April 1, 1865 (when c. 331 of the 
 Public Laws of 1865 took effect), is not sufficient to charge the town in 
 ■which he had his settlement at the time of his death, for supplies fur- 
 nished his family subsequent to such notice. Verona v. Penohscot, lvi. 
 11. 
 
 See Evidence, 5, 6. 
 
394 PAUPEK. 
 
 (c) Individuals against toipns. 
 
 81. When a town fails to furnish actual relief, after notice, to a person 
 therein, and in need thereof, an inhabitant of such town, not liable for 
 the pauper's support, may provide the necessary relief, and recover for 
 the expense thereof against the town,notwithstanding the overseers had 
 contracted to have the relief afforded with one who failed to do it. Per- 
 ley V. Oldtown, xlix. 31. 
 
 82. By R. S. of 1857, c. 24, § 32, towns are to pay expenses necessarily 
 incurred for the relief of paupers, by an inhabitant not liable for their 
 support, after notice and request to the overseers, until provision is made 
 for them. Hall v. Clifton, liii. 60. 
 
 88. A grandfather not of sufficient ability to support his grandchild in 
 whole or in part, stands in the same position as other inhabitants of the 
 town in which he resides. Hall v. Clifton, liii. 60. 
 
 84. If otherwise within § 32, he may recover of the town for the ex- 
 penses necessarily incurred in relieving his grandchild ; and, if he has 
 hired him kept, the expenses actually paid out. Hall v. Clifton, liii. 60. 
 
 85. If of sufficient ability to contribute partial support, he can recover 
 only that part of the support which he cannot supply. Sail v. Clifton, 
 Lin. 60. 
 
 (d) Towns against individuals. 
 
 86. R. S. of 1857, c. 24, § 9, requiring certain kindred, by consanguin- 
 ity, who are of sufficient ability to contribute to the support of each 
 other, does not embrace within its provisions an illegitimate child who 
 has become chargeable as a pauper. Hiram v. Pierce, xlt. 367. 
 
 87. It was considered a sufficient allegation that the town had incurred 
 expense, where the complaint set forth that the child had been supported 
 as a pauper by the complainant town, since a certain day therein named. 
 Hiram v. Pierce, xlt. 367. 
 
 88. And such complaint was held to be sufficient, though made and 
 signed by the attorney, in behalf of the town. Hiram v. Pierce, xlt. 
 367. 
 
 89. Under R. S. of 1841, c. 32, the complaint against certain kindred 
 of a pauper, to compel them to contribute to his support, should be in 
 the name of the city or town in which the pauper resides. Calais v. 
 Bradford, li. 414. 
 
 90. Where 'judgment has been rendered in favor of the overseers of 
 the poor of such town, upon their complaint, the judgment cannot be 
 revived by scire facias in the name of the town, although the town is 
 beneficially interested in its enforcenients, even if this were the proper 
 process by which to obtain a warrant of distress under the statute. Cal- 
 ais V. Bradford, li. 414. 
 
 91. It is discretionary with the overseers of the poor of a town in 
 which there is a county jail, whether or not they will exercise the au- 
 thority vested in them by R. S., c. 24, § 26, by setting " to work, so far 
 as is necessary for his support, any debtor committed, and then charge- 
 able to any town in the State for his support." Solon v. Perry, liv. 493. 
 
PAUPER. 
 
 395 
 
 92. And when a town in which a jail is situated, upon finding a debt- 
 or therein, actually destitute and in distress, has paid said debtor's board, 
 and, after due notice, recovered the same of the town in which the debt- 
 or has his legal settlement, the latter town, by virtue of R. S., c. 24, § 26, 
 may, in an action of assumpsit, recover the expenses thus incurred, " of 
 the creditor, at whose suit the debtor was committed, at the rate fixed 
 by law for his support." Solon v. Perry, liv. 493. 
 
 IV. EVIDENCE. 
 
 93. The depositing in the post-oifice a notice to a town that one of its 
 inhabitants has become chargeable as a pauper, was not designed to be 
 evidence of the contents of the letter, but only of the deliveiy. JBelfast 
 V. Washington, xlvi. 460. 
 
 94. Parol evidence of the contents of such letter is not admissible, 
 with due notice to produce it, or proof of inability on the part of the 
 moving party to produce the original. Belfast v. 'Washington, xlvi. 
 460. 
 
 95. Emancipation being contrary to nature, is never to be presumed, 
 but must always be proved. Monroe v. Jackson, in. 55. 
 
 96. Emancipation may be inferred from the acts of the parties. Mon- 
 roe V. Jackson, lt. 55. 
 
 97. What facts do not constitute emancipation. Monroe v. Jackson, 
 LV. 55. 
 
 98. In assumpsit by one town against another, for pauper supplies, 
 parol evidence that certain persons named were acting overseers of the 
 poor of the plaintiff town, when the supplies were furnished, is admissi- 
 ble. New Portland v. King field, lv. 172. 
 
 99. So is the testimony that the pauper, at the time it is stated he fell 
 into distress, called at the residence of one of the overseers, and, inquir- 
 ing for him, sat down and cried while waiting for the overseer's return 
 from his field. New Portland v. King field, lv. 172. 
 
 100. So is the testimony of a physician, descriptive of a disease upon 
 the pauper, unfitting him for labor. New Portland v. Kxngfield, lt. 172. 
 
 101. Where upon the issue of the alleged pauper's " need of relief," 
 the testimony of several witnesses, called by the plaintiffs, tended to es- 
 tablish the aifirmative, while that of C. T., introduced by the defendants, 
 tended to prove the contrary, it is competent for the plaintiffs, without 
 first interrogating C. T. as to the subject-matter, to prove that C. T. had, 
 when speaking of the action, declared "she would do all she could to 
 help the defendants, she'd be damned if she wouldn't." New Portland 
 v. Kingfield, lt. 172. 
 
 102. The defendants had introduced testimony tending to prove that 
 the supplies furnished by the plaintiffs, May 1, 1861, were collusively fur- 
 nished. Held, that the presiding judge properly instructed the jury, that, 
 as the plaintiff's testimony showed that the alleged paupers had had their 
 home in the plaintiff town, since May, 1856, the burden of proof was on 
 the plaintiffs to show that, before the lapse of five years frorii that time, 
 they had become destitute and in need of relief, and had received neces- 
 sary supplies as paupers ; otherwise their settlement would be in the 
 plaintiff town; that, if the plaintiffs had satisfied the jury of these facts, 
 
396 PAYMENT. 
 
 and that such supplies -were furnished and received, the presumption was, 
 in the absence of evidence to the contrary, that the transaction was in 
 good faith ; and that, if the defendants claimed that there was bad faith 
 on the part of the overseers of the plaintiffs, and that the su])plie8 were 
 furnislied collusively and by the contrivance of the overseers to prevent 
 their gaining a settlement in the plaintiff town, the burden of proof was- 
 upon the detiendants to show it. Ntw Portland v. Kingfield, lt. 172. 
 
 PAYMENT. 
 
 I. WHAT IS PAYMENT, AND ITS EFFECT. 
 II. APPBOPJBIATION OF PAYMENT. 
 
 I. WHAT IS PAYMENT, AND ITs EFFECT. 
 
 1. To enable a party to set up the defense of payment, there must be 
 the concurring intention of the party making and the party receiving the 
 payment. The payment must be received as well as made in satisfaction 
 of the debt. Cushing v.Wyman, xliv. 121. 
 
 2. An agreement to transfer a note when it should become payable ac- 
 cording to its conditions to be credited on account of goods sold, is nei- 
 ther a payment nor extinguishment of the note. Cushing v. Wyman, 
 XLIV. 121. 
 
 3. And if, at the maturity of the note, there was du? for the goods a 
 sum exceeding thf amount of the note, that would constitute no bar to a 
 recovery upon the note, where, before that time, it had been transferred 
 for full consideration without notice. Cushing v. Wgman, xliv. 121. 
 
 4. K. and D. were jointlj' interested under a United States mail contract, 
 and were also joint promisors upon a note held by the plaintiff, the mail- 
 contractor ; and they mutually agreed that the plaintiff might collect the 
 quarterly payments accruing on said contract, and apply the same to the 
 note, ifeld, that this fund was thereby set apart for that purpose; that 
 a subsequent agreement, between the plaintiff and one only of the par- 
 ties, to appropriate the fund diffei'ently, was void; and that the suras, as 
 they were collected quarterly, by the plaintiff, operated as payments upon 
 the note. Stackpole v. Keay, xlv. 297. 
 
 5. A., having commenced an action against B., which was defaulted 
 and continued for judgment, agreed, after default and before judgment, 
 to accept an execution held by B. against C, in full payment, which 
 agreement was not carried out by A. Held, that this did not constitute 
 a consummated payment; and that the execution against C, though in 
 the hands of A., by viitue of the agreement, was still the property of B. 
 Mansur v. Beaton, xlti. 346. 
 
 6. A creditor who had been induced, by the fraud and deceit of his 
 debtor, to receive a certain article in payment and discharge of his ac- 
 count, having afterwards discovered the fraud, brought an action on the 
 
PAYMENT. 
 
 397 
 
 acconnt, without returning or offering to return the article named. 
 Mdd, that the action could not be maintained, the property having been 
 received in payment of the account, and not for an indefinite sum there- 
 after to be ascertained. Garland v. Speticer, xlvi. 528. 
 
 7. The acceptance of negotiable paper for a debt, and giving a receipt 
 in discharge thereof, are an extinguishment of the original liability, un- 
 less it appears that the parties did not so intend. MiUiken v. White- 
 house, xLix. 527. Ward v. Bourne, lti. 161. 
 
 8. A. agreed in writing to pay the debt of another then in suit, when 
 the debtor received his money from the trustee, and thereupon the suit 
 was discontinued. The trustee afterwards, with the debtor's consent, 
 gave his promissory note to a third person, and took the debtor's receipt 
 for the money. Held, that in legal contemplation, this was a payment 
 to the debtor, by which A.'s promise became absolute. Castner v. Slater, 
 L. 212. 
 
 9. A verbal promise by the holder to the maker of a note, to surren- 
 der it in payment of an account the maker had against a third person 
 and which the holder was not liable for, will not, unless executed, affect 
 the note as payment. Nohle v. JEdes, xi. 34. 
 
 10. It is essential to a payment, that the title to the money or other 
 property transferred for that pui'pose, pass to and vest in the creditor, 
 without the right of reclamation by the owner, if other than the person 
 making such payment. Mechanics Hank v. Hallowell, lii. 545. 
 
 11. A payment cannot be valid unless made by the proprietor of the 
 thing paid, or with his consent. Mechanics Bank v. Hallowdl, lii. 545. 
 
 12. If the circumstances are such that the creditor cannot legally re- 
 tain the money paid, and, upon demand, he restores it to the owner, the 
 debt cannot be regarded as paid. Mechanics Bank v. Hallowell, lii. 
 545. 
 
 13. An acceptance payable to order, \& prima facie evidence of payment 
 of the account for which it was given. It may be rebutted. As where 
 the vendor of chattels ignorantly takes negotiable paper, not binding on 
 all the vendees for the price. Paine v. Hwind, liii. 52. 
 
 14. If the defendant, being cashier of a bank, receive, at the banking 
 house, a certain sum of money from the plaintiff with instructions to ap- 
 propriate it to the payment of a specific note signed by the lattei-, then 
 Undue ; and he apply the same upon another note signed by the plain- 
 tiff, both of which are payable to said bank ; and the plaintiff do not 
 subsequently acquiesce in such application, the defendant will be person- 
 ally liable in an action for money had and received to refund the sum 
 thus received, with interest from the time when received. And whether 
 the defendant applied the money to his own use or to that of the bank 
 is immaterial. The facts do not constitute a voluntary or involuntary 
 payment. Norton v. Kidder, liv. 189. 
 
 15. By the law of Massachusetts and of Maine, the giving of a nego- 
 tiable draft is to be AeenieA prima facie evidence of payment of that for 
 which it is given. Ward v. Bourne, lti. 161. 
 
 16. The plaintiff, as agent of the owners, chartered their vessel for a 
 voyage from Boston to Callao, for $1625 per cijlendar month, payable at 
 Callao, so far as earned, up to tim.e of discharge there, in drafts on the 
 
398 PAYMENT. 
 
 United States, at sixty days' sight, to the order of the captain, iirst de- 
 ducting amounts advanced him for disbursements, with liberty to the 
 charterers to recharter her for a cargo of guano. The consignees, at Cal- 
 lao, paid the master on account of freight earned 15210 in cash, and gave 
 their draft on a Boston house for $7000, at sixty days, payable to the 
 order of the master, who indorsed it to the plaintiff. The consignees 
 rechartered the vessel for a cargo of guano. At its maturity, the draft 
 remaining unpaid and the drawees having failed, they transferred their 
 interest in the freight money in the guano to the plaintiff, as agent of 
 the owners, to collect the same on account of the vessel's earnings. 
 Twenty days afterwards, the defendants' testator, owning three-six- 
 teenths of the vessel, sold his interest in the unpaid draft to the plaintiff, 
 at fifty per cent., taking, therefor the plaintiff's note, which by its terms 
 was " for " the testator's " three-sixteenth's interest in the unpaid $7000 
 draft." The guano freight was received and divided among the ownerS) 
 the testator receiving three-sixteenths thereof. In assumpsit to recover 
 the money received by the testator. Held, That the giving of the draft 
 was prima facie payment pro tanto of the freight earned. Ward v. 
 JBourne, lti. 161. 
 
 See AccoED, &c., 2, 3. 
 
 Bills, &c., 18, 19, 118, 119. 
 conteact, 34, 37. 
 Limitations, Stat, of, 19, 23-29. 
 State Teeasueee, 1. 
 
 II. APPEOPEIATION OF PAYMENT. 
 
 17. Upon an account current, when there is no specific appropriation 
 of payments, they must be applied to extinguish the first items of 
 debit, although the creditor may hold security for those items, and none 
 for the final balance of the accounts. Cushing v. Wyman^ xliv. 121. 
 Lambert v. Winslow, xlviii. 196. 
 
 18. One cannot maintain an action for the price of property sold in 
 part-payment of his notes held by the vendee, notwithstanding the ven- 
 dee subsequently transferred such of the notes as were overdue, and to 
 which the law, in the absence of any appropriation by the parties, would 
 appropriate the price of the property thus sold. Lamhert v. Window, 
 xltiii. 196. 
 
 19. In such case, if the maker of the notes voluntarily pays those so 
 transferred, he must be presumed to assent to the appropriation of the 
 price of the property thus sold, to the notes still remaining in the hands 
 of the vendee. Lambert v. Window, XLvm. 196. 
 
 20. Where a person was collector of taxes for two successive years, 
 and at the end of the second year he proved to be a defaulter, he had a 
 right to appropriate payments made by him to the town to either year, 
 at the time he made each payment; if he failed so to appropriate them, 
 the town might appropriate them as they desired ; and if uo appropria- 
 tions were made by either, the law would appropriate such payments to 
 the oldest debts, although the whole deficit is thereby made to fall on 
 the second year. Readfidd v. Shaver, l. 36. 
 
 See Assumpsit, 43. 
 CollectoeJ 3, 4. 
 
PEDDLER. PENAL ACTION. 399 
 
 VOLUNTARY PAYMENT. 
 
 See Tax, 39. 
 
 Payment, 14. 
 
 .PEDDLER. 
 
 A traveling peddler (without license), when not engaged in that busi- 
 ness, may make a valid sale and delivery of goods. Brett v. Marston, 
 XLV. 401. 
 
 PENAL ACTION. 
 
 1. To recover of the master of a vessel the penalty mentioned in R. S. 
 of 1841, c. 32, § 56, for neglecting to give bonds, " before passengers 
 shall come on shore," vsfho have no residence in the State, it must appear 
 that there has been an actual landing of such passengers. Lawrence v. 
 Small, XLViii. 468. 
 
 2. A penal action cannot be maintained after the repeal of the statute 
 creating the penalty sought to be recovered, although the repealing stat- 
 ute creates a similar but a less penalty. Gaid v. Brown liii. 496. 
 
 3. A. suit to recover the penalty provided in Special Laws of 1821, c. 
 74, § 7 cannot be maintained against a corporation by whose servants 
 the acts therein prohibited were done. Cwnb. <& 0. O. Corp. v. Port 
 land, Lvi. 77. 
 
 See Costs, 52. 
 Fishing, 3. 
 Pleading, 22. 
 
 PENOBSCOT RIVER. 
 See "Wat, 3. 
 
400 PEKAMBUXATION. PEEJUEY. PEESONAL PEOPEETY. 
 
 PERAMBULATION". 
 
 The assessors of organized plantations are subject to the perform- 
 ance of the duties devolving on the municipal officers of towns in rela- 
 tion to perambulation. /Small v. J/ufkin, lyi. 30. 
 
 PERJURY. 
 
 fl 
 
 1. Under R. S. of 1841, a justice of the peace, having, on the return 
 day, defaulted an action brought before him, has no authority, on the 
 next day to take off the default; and an indictment for peijury cannot 
 be sustained for false testimony given on the subsequent trial of such 
 cause. State v. ITall, xlix. 412. 
 
 2. An indictment for perjury is fatally defective, from which it does 
 not appear with certainty, that at the time the offense is charged, the 
 tribunal, which administered the oath, and before which the testimony 
 was given, had jurisdiction of the matter then on trial. State v. Flum- 
 mer, l. 217. 
 
 PERSONAL PROPERTY. 
 
 _ 1. Buildings, erected by the lessee, upon leased land, with the permis- 
 sion of the lessor, are personal property. Adams v. Goddard, XLvm. 
 212. 
 
 2. A " permit," authorizing a lessee to so erect a building, and « to take 
 it away or sell it upon the ground, at his own expense at the termina- 
 tion of" his lease, limits the right to take away the building, but not the 
 right to sell it. Adams v. Goddard, xltiii. 212. 
 
 3. After such building becomes the property of a third person, the can- 
 celing of the lease by the parties thereto, or their assigns, cannot affect 
 his rights; but he may take it away at the end of the term, for which 
 the lease was originally given. Adams v. Goddard, xlvui. 212. 
 
 See Husband and Wife, 14. 
 Title, &e., 17. 
 
PHYSICIANS AND SURGEONS. — PLEADING. 
 
 401 
 
 PHYSICIANS AND SURGEONS. 
 
 1. Physicians and surgeons, offering themselves to the public as practi- 
 tioners, impliedly promise thereby, that they possess the requisite knowl- 
 edge and skill to enable them to treat such cases as they undertake with 
 reasonable success. Patten v. Wiggin, li. 594. 
 
 2. The rule does not require the possession of the highest, or even the 
 average skill, knowledge, or experience, not only such as will enable 
 them to treat the case uaderstandingly and safely. Patten v. Wiggin, 
 LI. 594. 
 
 3. The law implies that they will exercise reasonable and ordinary 
 care and diligence in all cases they undertake. Patten v. Wiqin, li. 
 594. 
 
 4. They are bound to use their best skill and judgment in determin- 
 ing the nature of the malady, the best mode of treatment, and in all re- 
 spects to do their best to secure a perfect restoration of their patients. 
 Patten v. Wiggin, li. 594. 
 
 6. They do not impliedly warrant a recovery, and are not liable for 
 failure in that respect, unless through some default of their own duty. 
 Patten v. Wiggin, li. 594. 
 
 6. If the settled practice and law of the profession allows but one 
 course of treatment in the case, then any departure therefrom might 
 properly be regarded as the result of want of knowledge, skill, experi- 
 ence, or attention; but if there are different schools of practice, all that 
 any physician or surgeon undertakes is, that he understands, and will 
 faithfully treat the case according to the recognized law and rules of his 
 particular school. Patten v. Wiggin, li. 594. 
 
 See Action, 5, 19. 
 
 PLEADING. 
 
 I. PARTIES. 
 
 II. DECLARATION^, 
 
 in. RESULTS OP PLEADINGS. 
 
 IV. GENERAL EEQUISITES OF PLEADINGS. 
 
 V. SPECIAL PLEADING GENERALLY. 
 
 VL ADMISSIONS, BY PLEADING. 
 
 VII. BRIEF STATEMENTS, COUNTER BRIEF STATEMENTS, AND 
 SPECIFICATIONS OF DEFENSE. 
 
 L PARTIES. 
 
 (a) Gbnekallt. 
 
 Cb) JOINDEK OF PLAINTIITS. 
 (O) JOINDEK OF DEFENDANTS. 
 
 26 
 
402 
 
 PLEADING. 
 
 (a) Generally. 
 
 1. Where one of the joint obligees of a bond has assigned all his inter- 
 est therein to his co-obligees, the latter have a right to use the name of 
 the former in an action upon the bond, and he cannot interfere for any 
 purpose other than to require indemnity against costs. SouthwicJe v. 
 Hopkins, xlvii. 362. 
 
 2. An action under R. S. of 1841, c. 148, § 47, for a false disclosure by 
 a poor debtor, should be brought in the name of the judgment creditor. 
 Dyer v. Burnham, XLvm. 298. 
 
 3. The word "cieditor" in that statute may mean a creditor in inter- 
 est, but the action cannot be brought in the name of the assignee. Dyer 
 V. Burnham, xlviii. 298. 
 
 (b) Joinder of plaintiffs. 
 
 4. One of. several individual creditors, who have legally become par- 
 ties to an assignment, made under the statute for the benefit of creditors, 
 may maintain an action of covenant broken against the assignees, with- 
 out joining the others; for though all look to a joint fund for their div- 
 idends, the claim of each creditor, either as an individual, or as a firm, 
 is several and not joint. Mitchell v. Kendall, xlv. 234. 
 
 5. Where the wife joins her husband in a note for money loaned to 
 him and gives a mortgage of her real estate as security therefor, which 
 note is afterwards paid with money obtained upon another note in which 
 she also joined, and to secure which she gave another mortgage, the 
 husband only is entitled to the action provided by statute to recover ■ 
 back from the payee of the first note a sum taken as usurious interest. 
 Roach V. Randall, xlv. 438. 
 
 6. In trespass by a tenant in common of the locus in quo, under R. S., 
 c. 95, §§ 14 and 15, it is optional with the plaintiff, whether to name his 
 co-tenants or not. Mohbs v. Hatch, xlviii. 55. 
 
 7. But co-tenants may become parties at any time before final judg- 
 ment. Hobbs V. Hatch, xlviii. 55. 
 
 See Abatement, 2. 
 
 Maeeied woman, 25j 26. 
 
 (c) Joinder of defendants. 
 
 8.' By certain articles of agreement, B. L. & B. were made trustees of 
 a joint stock association for the purpose of publishing a newspaper. 
 Each shareholder was to advance ten dollars. Only five shares were 
 subscribed for beyond the number taken by B. L. & B. The press and 
 necessary materials were held in equal proportions by the three trustees, 
 and, from the trust property, they were to indemnify themselves Jigainst 
 loss that might happen. Subsequently H. & F. advanced money to par- 
 ticipate in the enterprise and continue the publication, the trustees by a 
 written agreement having promised to hold the trust property as much 
 for the security of H. & F. as for their own. Held, that to render all 
 the defendants liable, it was not necessary to declare against them as 
 , being partners. Holt v. Blake, XLvn. 62. 
 
 See Husband and wife, 4, 5. 
 
403 
 
 PLEADING. 
 
 n. DECLABATIOK. 
 
 (a) Generaxj btjlbs. 
 
 (b) Dkolauations in pakticulab actions. 
 
 (c) JOINDEE OP COUNTS. 
 
 (d) "Wbonq venue. 
 
 (a) General rules. 
 
 9. The plaintiff's declaration is a part of the pleadings. Surnham v. 
 Hoss, xLvii. 456. 
 
 10. Railroad coupon bonds, containing no negotiable ■words, are not 
 legally assignable, and no action can be maintained thereon in the name 
 of the assignee. Jackson v. York <b C. li. M. Co., xlviii. 147. 
 
 11. It is indispensable to its maintenance that the cause of action ex- 
 ist at the time the action was commenced. The statute of 1856, c. 248, 
 does not remedy this defect. Jackson v. York'& C. H. H. Co., xlviii. 
 147. 
 
 12. A plaintiff cannot recover upon a count in his declaration setting 
 out a special contract, unless he alleges and proves performance of the 
 same. Veazie v. Bangor, li. 509. 
 
 13. Where, by the terms of the contract, some person is agreed upon 
 to examine and determine the character, quality, or quantity of the work 
 done, no action can be maintained upon the contract, unless such exam- 
 ination and decision are alleged and proved. Veazie v. Bangor, li. 509. 
 
 14. Nor can a party recover, under a general count, for labor performed 
 under such a contract, unless he proves that he attempted in good faith, 
 and did all he reasonably could, to perform it in all respects ; including 
 the examination and decision, or some sufficient reason for the want of 
 them. Yeazie v. Bangor, li. 509. 
 
 15. When a remedy is given by an action on the case, all the facts must 
 be set out in the declaration ; but whether in the form of assumpsit or 
 of tort must be determined from the nature of the facts. Hathorn v. 
 Calef, Liii. 471. 
 
 16. The declaration by an administrator need not set out where, or by 
 what authority, the administration was granted. Brown v. Nourse, lv. 
 230. 
 
 See Libel, &o., 3, 4, 5, 6, 7, 8, 10. 
 
 (b) Declarations in particular actions, 
 
 17. A declaration, alleging that the defendant's horse, being unlaw- 
 fully at large, broke and entered the plaintiff's close, and injured the 
 plaintiff's horse, which was there peaceablyand of right depasturing, is 
 sufficient to sustain a verdict for such injury. Becker v. Gammon, 
 XLiv. 322. 
 
 18. In trespass against a sheriff, in which he is directly charged, the 
 declaration will be supported by proof that the alleged trespass was com- 
 mitted by one who was acting as his deputy, for whose misfeasances he 
 is by law answerable, although there be no such averment in the writ. 
 Pratt v. Bunker, xlv. 569. 
 
404 PLEADING. 
 
 19. Public Laws of 1842, c. 9, § 5, providing that a railroad corpora- 
 tion shall be held responsible to the owner of property injured by fire 
 communicated by a locomotive engine of the corporation, will not be 
 held to be unavailing to the person whose property has been thus injured, 
 because neither that, nor any other statute, provides a remedy, or form 
 of action ; for them he may declare specially on his own case. • Steams 
 V. At. & St. L. R. E. Co., XL VI. 95. 
 
 20. In an action against the At. & St. L. R. R. Company, to recover the 
 value of a building situate on the route of their road, destroyed by fire 
 communicated by an engine of said corporation running over their road, 
 it is necessary to allege that the engine causing the fire was in the use of 
 said company, or of their lessees, the Grand Trunk Railway Company. 
 Frye v. At. & St. B. B. Co., xlvii. 523. 
 
 21. In an action «n a penal statute the declaration must allege the of- 
 fense to have been committed contra formam statuti, or in language 
 equivaleht thereto, unless the facts alleged constitute an offense or 
 ground of action at common law. Penley v. Whitney, XLViii. 351. 
 
 22. Penal actions are not embraced in § 12 of c. 131, R. S., by which 
 those words are made immaterial. Penley v. Whitney, xltiii. 351. 
 
 23. A declaration concluding with the words, " whereby, by force of 
 section two (creating the offense), and twenty-three (providing the rem- 
 edy), of the twenty-third chapter of the revised statutes of the State of 
 Maine, an action has arisen to the plaintiff," &c., is good, — the allegation 
 being equivalent to alleging the offense to have been committed " con- 
 trary to the form of the statute." Penley v. Whitney, xlviii. 351. 
 
 24. In an action for damages to an employee, arising from the neglect 
 of the employer, in the use of defective machinery or tools, the declara- 
 tion is bad, if it does not allege, that the defect was unknown to the 
 plaintiff, as well as known to the defendant, and that it arose from the 
 want of proper care and diligence on the part of the defendant. Buz- 
 zell V. Laconia Manuf. Co., xlviii. 113. 
 
 25. It is no ground for demurrer, that in a writ of entry it is not al- 
 leged that the land demanded is in the county in which the action is 
 brought; it is sufficient if it is described as being in a town which is 
 within the county. Martin v. Martin, li. 366. 
 
 26. In an action by the master of a house of correction to recover the 
 expenses incurred in support of a pauper therein, a declaration upon an 
 account annexed is sufficient. Oilman v. Portland, li. 457. 
 
 27. An allegation in a writ against a stockholder, that the officer "did 
 return the execution . . . wholly unsatisfied, for want of attachable cor- 
 porate property . . , wherewith to satisfy it," is a sufficient statement of 
 a want of attachable corporate property, considerJhg that the statute 
 contemplates this fact is to be proved by the return. Jlathorn v. Calef, 
 Liii. 471. 
 
 28. If, in debt on a probate bond, the plaintiff alleges the accidental 
 destruction of the bond, he must set out the- substance of its condition 
 in the declaration. Waterman v.- DocJcray, lvi. 52. 
 
 (c) Joinder of counts. 
 
 29. If a mortgagee of personal property bring an action of trover for 
 dLamages to his reversionary interest, he may add a count in case. But 
 
PLEADING. 
 
 405 
 
 if no objection be made to the form, of action, until after the judgment, 
 it will be too late for the defendant to take advantage of the defect. 
 Googins v. Oilmore, XLvn. 9. 
 
 30. A defendant can take advantage of a misjoinder of counts only by 
 demurring to the whole declaration. He cannot plead to one count and 
 demur to another ; but the defect may be cured by amendment. Fer- 
 nald V. Garvin, lv. 414. 
 
 (d) Wrong venue. 
 
 31. If an action be brought in a wrong county, that fact should be 
 pleaded in abatement, or taken advantage of on motion. Demuth v. 
 Cutler, L. 298. 
 
 III. RESULTS AND PLEADINGS. 
 
 32. In ejectment against an infant, he must appear and plead by guar- 
 dian, or the judgment will be erroneous; but otherwise, if, pending the 
 suit, he attain to full age and afterwards plead. Marshall v. Wing, l. 
 62. 
 
 33. The statute requires non-tenure to be pleaded in abatement, and 
 the defendants, who neglect so to plead, cannot avail themselves of that 
 defense, by joining with another defendant in a plea of null disseisin. 
 Wyman v. Brown, l. 139. 
 
 34. Generally, when a plea in abatement is adjudged bad on demurrer, 
 the judgment is " respondeas ouster P McKeen v. Barker, li. 389. 
 
 35. But when a plea '^puis darrein continuance" is adjudged bad on 
 demurrer, the judgment is final against the defendant. McKeen v. Par- 
 Jeer, 1,1. 389. 
 
 IT. GENERAL EEQITISITES OF PLEADINGS. 
 
 (a) Ceetaintt and paetioulaeitt. 
 
 (b) Vakiakob. 
 
 (a) Certainty and particularity. 
 
 36. In case of a dilatory plea, the court will not show its favor by 
 giving the defendant leave to amend ; and any defect, though in form 
 only, is fatal on demurrer. Getchell v. Boyd, xliv. 482. 
 
 37. It is not necessary to demur specially to a formal defect in a plea 
 in abatement. Getchell v. Boyd, xliv. 482. 
 
 « 
 
 38. A plea oi puis darrein continuance must have the same certainty 
 as to time and place as other pleas. Cummings v. Smith, l. 568. 
 
 39. Such a plea which does not allege the day on which the matter 
 pleaded happened, is bad. Cummings v. Smith, l. 568. 
 
406 
 
 PLEADING. 
 
 (b) Variance. 
 
 40. Whether a joint plea of nul disseisin by three, can be supported 
 as to either, by proof of anything short of a joint tenancy or a tenancy 
 in common by all three, dubitatur. Wyman v. Brown, l. 139. 
 
 41. On an issue joined of nul tiel record, a judgment in favor of Thom- 
 as Farroio will not support a declaration in debt on a judgment in favor 
 of Thomas Farro!?'. But such misprision may be avoided by an aver- 
 ment that the plaintiff by the name of Thomas Farrow, recovered such 
 judgment. Farrar v. Fairbanks, liii. 143. 
 
 See CoEPOEATioN, 54. 
 
 V. SPECIAL PLEADING GENEEALLY. 
 
 42. A plea of accord can be sustained only by proving an accord which 
 ought to be and which has been executed before the commencement of 
 the action. Gushing v. Wyman, xliv. 121. 
 
 43. A technical release to one of several joint debtors, being under 
 seal, may be pleaded in bar to a suit against both. Drinkwater v. Jor- 
 dan, xLvi. 432. 
 
 44. After the plaintiffs had commenced this action upon the notes de- 
 clared on, they instituted another action, for the same cause, in another 
 State, and caused personal service to be made on the defendant, who ap- 
 peared and defended until judgment was rendered against him for the 
 amount of the notes and for costs. Held, that the judgment .thus ren- 
 dered is a bar to their recovery in this suit. North JBanh v. JBrown, l. 
 214. 
 
 45. If a demurrer bg filed to a specification of defense, the defendant 
 may take advantage on argument of any defect in the writ; and judg- 
 ment will be against the party who committed the first error in pleading. 
 Calais v. Bradford, li. 414. 
 
 46. When a defendant demurs to a replication to a special plea in bar, 
 a question of law is presented to the presiding judge, and the plaintiff 
 must join the demurrer. Wakefield v. Littlefield, lii. 21. 
 
 47. After joinder, it is the legal duty of the presiding judge to rule 
 upon the demurrer. After such ruling, the presiding judge may, if he 
 sustains the demurrer, allow the replication to be amended on terms. 
 
 Wakefield v. Littlefield, lii. 21. 
 
 48. And a motion to dismiss because of insufficient specifications, will 
 be treated as an informal demurrer, and judgment will go against the 
 party committing the first error. Shelden v. Cull, lt. 159. 
 
 49. If an issue tendered by the replication to a special plea in bar, be 
 joined, there must be a special verdict upon that issue. And the general 
 verdict on the general issue will depend upon and be controlled by the 
 special verdict. Wakefield v. Littlefield, lii. 21. 
 
 50. In case of demurrer, judgiifent will be rendered against the party 
 committing the first error. State v. Sweetsir, liii. 438. Shelden v. CaU, 
 Lv. 159. Calais v. Bradford, li. 414. 
 
 51. Hence, where the respondent demurred to a replication to a plea 
 in abatement to an indictment, judgment will be rendered against the 
 
PLEADING. 407 
 
 respondent if the plea and replication are both bad. State v. Sweetsir, 
 Liii. 438. 
 
 52. A plea in abatement to an indictment for polygamy, alleging that 
 "at the time of the finding of said indictment, the respondent did not 
 reside nor was he apprehended in the" county where the indictment 
 was found, " but that he then and for a long time before resided in B.," 
 in a county other than that in which the indictment was found and was 
 apprehended at B., is bad. State v. Sweetsir, Liii. 438. 
 
 63. A replication, traversing the facts alleged in a plea in abatement, 
 should tender an issue to the country ; if it conclude with an oflfer to 
 verify and pray judgment, it will be adjudged bad. State v. Sweetsir, 
 LIII. 438. 
 
 54. Where a demurrer to a special plea of autrefois convict is sus- 
 tained, the judgment will be final for the State. State v. Innes, liii. 
 536. 
 
 55. If the defendnnt desires to answer further, he must claim the right 
 when he files his demurrer, or obtain leave to plead double at the begin- 
 ning. State V. Inness, uii. 536. 
 
 56. Duplicity of a declaration can only be taken advantage of by spec- 
 ial demurrer, pointing out the objection and the grounds of it. JBriggs 
 V. Gh-and T. B. Co., liv. 375. 
 
 57. Upon a general demurrer to an indictment, it is the duty of the 
 presiding judge to rule. State v. Dresser, liv. 569. 
 
 58. If the indictment is adjudged good, the prisoner may except; and 
 if his exceptions ai-e overruled, or if no exceptions are taken, judgment 
 will be rendered for the State, unless, at the time of demurring, the ac- 
 cused has, with the consent of the prosecuting ofiicer, reserved the right 
 to plead anew. State v. Dresser, liv. 569. 
 
 59. And, in these respects, there is no distinction between felonies aud 
 misdemeanors. State v. Dresser, liv. 569. 
 
 60. When the general issue is well pleaded to one of five counts and 
 the plaintifi" demurs thereto and the demurrer is joined, the demurrer 
 should be overruled and judgment rendered for the defendant. Patter- 
 son V. Wilkinson, lv. 42. 
 
 61. The defendants demurred to a declaration against substitute 
 brokers containing a special count setting out an agreement to fill plain- 
 tiffs' quota, the consideration thereof, its non-performance and the con- 
 sequent damages, and a count for money had and received, claiming 
 under the latter, to recover the consideration paid by the plaintiffs, upon 
 the ground that the same was obtained from them by "false and fraudu- 
 lent assurances, representations and promises of the defendants." Held, 
 that, as the latter count disclosed a good cause of action, the demurrer 
 cannot be sustained. Concord v. Delaney, lvi. 201. 
 
 VI. ADMISSIONS OF PLEADING. 
 
 62. By the common law, the plea of nul disseisin so far admits the 
 tenant's claim to the freehold, that he need not prove the tenant's pos- 
 session. Colburn v. Grover, xliv. 47. 
 
408 PLEADING. 
 
 63. The possession of the demanded premises by the tenant, is admit- 
 ted by the plea of general issue. Colburn v. Graver, xliv. 47. 
 
 64. By pleading the general issue, the corporate existence of a corpo- 
 ration is admitted, and cannot be contested. Orono v. Wedgewood, xliv. 
 49. 
 
 65. In a suit in error, where the cause assigned for the reversal of the 
 judgment is, that a part of the defendants in the original suit were mi- 
 nors and did not answer' by guardian or next friend, and the defendant 
 in error pleads in nulla est erratum, the fact alleged, not being traversed 
 by that plea, is to be treated as admitted ; that plea putting in issueonly 
 such errors as appear on the face of the record. Benner v. Wdt, xlv. 
 483. 
 
 66. By the rules of pleading in a real action, the defendant admits 
 himself to be in possession of all the land demanded, if he files no dis- 
 claimer of the whole or of any part of it. JBlake v. Dennett, xlix. 102. 
 
 67. The general issue is a waiver of wrong venue. Demuth v. Cutler, 
 L. 298. 
 
 See Joint Tenant, &c., 18. 
 
 VII. brief statements, counter brief statements, and 
 
 SPECIFICATIONS OF DEFENSE. . 
 
 68. The disclaimer filed by way of brief statement under the general 
 issue must be filed within the time required for filing pleas in abatement, 
 and not after, except by special leave of the court, and on such terms as 
 the court shall direct. Calburn v. Graver, xliv. 47. Chaplin v. Bar- 
 ker, Liii. 275. 
 
 69. Where the owner of logs appears to contest a lien claim, he will 
 not be permitted to file a separate plea, but may justify under the gen- 
 eral issue and appropriate brief statement ; and one verdict and special 
 findings, under the direction of the court, are sufficient to establish the 
 rights of all parties. Lumhert v. Lumhert, xliv. 85. 
 
 70. If the defendant, in his specifications of defense, does not refer to 
 a want of demand as a ground relied upon in defense, in an action upon 
 a note payable in cash or specific articles on demand, a demand will be 
 " regarded as admitted for the purpose of trial." Stevens v. Adams, xlv. 
 611. 
 
 71. Whether a defendant, after having filed his specifications of de- 
 fense, can, at a subsequent time, without leave of court, demur to the 
 declaration for any defect not noticed in his specifications, qumre. 
 Stevens v. Webster, xlv. 615. 
 
 72. A specification of defense, that the defendant " will plead the gen- 
 eral issue, and require the plaintiff to make out his case," was held insuf- 
 ficient on demurrer. Clough v. Grossman, xlvii. 849. 
 
 73. No particular form of a bi-ief statement is prescribed; nor is it re- 
 quired to be subscribed by the defendant or his attorney. 3Iin. <jb 
 Schoal Fund in Salan v. liowell, xlix. 330. 
 
 74. Formal words may be omitted in a brief statement; and, if the 
 special matter be so indicated by it, thar it may be readily apprehended, 
 it will be sufficient. 3En. & School Fund in Salan v. Bowell, xlix. 
 330. 
 
PLEADING. 409 
 
 75. In trover, the mere denial of conversion in the specifications of de- 
 fense is only equivalent to a plea of the general issue, and i^ not suf- 
 ficient; but if facts are alleged, ■which, if proved, would support such 
 plea, the plaintiff will be required to prove the conversion. Fenlason v. 
 JRackliff, L. 362. 
 
 76. Thus, where the specifications set forth that the buildings which 
 are the subjects of controversy, "were at the time of the alleged conver- 
 sion, the property of the defendant, and a part of his real estate." Fen- 
 lason v. Rachliff, l. 362. 
 
 77. By the 9th Rule of the S. J. Court, parties filing specifications of 
 the nature and grounds of defense with the clerk, . . . shall, in all cases 
 be confined, on the trial of the action, to the grounds of defense therein 
 set foi'th ; and all matters set forth in the writ and declaration, which are" 
 notspeciiilly denied, shall be regarded as admitted for the purpose of the 
 trial. Fox v. Conway F. Ins. Co., liii. 107. Cutler y. Currier,iAY. 81. 
 
 78. This rule is not repugnant to law; and the S. J. Court had not 
 only statute, but inherent authority to establish it. Fox v. Conway F. 
 Ins. Co., LIII. 107. 
 
 79. Specifications of defense may be amended at the discretion of the 
 presiding judge. Fox v. Conway F. Ins. Co., liii. 107. 
 
 80. When the declaration on a policy alleges due notice and proof of 
 the loss, according to the conditions of the policy, and the specifications 
 of defense do not deny such allegations, the plaintiffs need not show that 
 they had notified the defendants of the fire, or that they had furnished 
 them with any proof or statements of loss or damage, verified by oath 
 or afiirination. Fox v. Conway F. Ins. Co., liii. 107. 
 
 • 81. If the specifications of defense contain no reference to the notice 
 required by c. 34, § 5, of the Public Laws of 1861, and no question in re- 
 lation thereto is made at the trial at nisi prius,t\x& objection cannot be 
 made before the court in banc. Fox v. Conway Ins. F. Co., liii. 107. 
 
 82. R. S. of 1857, c. 82, § 18, does not require that the several grounds 
 of defense specified shall be consistent with each other. Granite State 
 Bank v. Otis, liii. 133. 
 
 83. The defendant may specify as many grounds of defense as he 
 chooses. It is not necessary that each several ground of defense should 
 constitute a valid and sufficient answer to the declaration. And if there 
 be one valid ground of defense specified, the defendant cannot be de- 
 prived of his right to a jury trial. Granite State Sank v. Otis,isa.. 
 133. 
 
 84. A brief statement, when made with sufficient precision, becomes to 
 all intents and purposes a substitute for the special plea. Sturtevant v. 
 Bandall, liii. 149. 
 
 85. Specifications need not contain the technical accuracy of a special 
 plea ; they need only intelligibly disclose the ground of defense relied 
 upon. Clement v. Garland, liii. 427. 
 
 86. A defendant cannot invoke the aid of the statute of limitations un- 
 less he has specified it as a ground of defense. Longfellow v. Longfel- 
 low, Liv. 240. 
 
 87. A defendant cannot be defaulted on the ground that his specifica- 
 tions of defense are defective, if the plaintiff's declaration is also de- 
 fective. Shelden v. Call, lv. 159. 
 
 See School disteict, 13. 
 
410 
 
 PLEDGE. POLICE. POLYGAMY. 
 
 PLEDGE. 
 
 1. It seems, if one pledges, as collateral, a demand on which interest 
 is accruing at stated periods, some of which occur before his debt, so se- 
 cured, becomes due, such pledge necessarily implies an authority to the 
 pledgee, to collect and receive the interest as it becomes payable, and 
 hold it, on the same terms as the demand itself; especially, if the collat- 
 eral be a bond, with interest coupons attached, which the pledgor does 
 not cut off before the bond is pledged. Androscoggin H. M. Co. v. Avr 
 burn JBanJc, xltiit. 335. 
 
 2. Where a railroad company pledged its own bonds as collateral for 
 the payment of debts contracted by the company, and the pledgee cut 
 therefiom and collected of the agents of the company the interest cou- 
 pons that afterwards became due, such acts carfnot operate as a conver- 
 sion of the bonds by the pledgee. Androscoggin H. H. Co. v. Auburn 
 J3ank, XLviii. 335. 
 
 3. To avail one's self of a pledge of personal property, the pledgee 
 must rt'tain possession. If he permits it to go back into the hands of 
 the pledgor, and the latter sells it, the Yendee will acquire a good title 
 thereto. Day v. /Swift, xLvm. 368. 
 
 POLICE. 
 
 A city is not liable for a personal injury sustained by one while aid- 
 ing, at their request made in accordance with a city ordinance, its police 
 officers, in airesting violent disturbers of the public peace. Cobb v. 
 Portland, lv. 381. 
 
 POLL TAX. 
 
 See AssEssoE, 1. 
 
 POLYGAMY. 
 
 By R. S. of 1857, c. 124, § 4, an indictment for polygamy may be 
 found and tried in the county where the offender resides, or where he is 
 apprehended. This statute only enlarges the jurisdiction. State v. 
 JSweetsir, Liir. 438. 
 
 See Abatement, 27. 
 
POOR DEBTOR. 411 
 
 POOR DEBTOR. 
 
 I. AEREST ON" MESNE PROCESS. 
 
 ' II. PROCEEDINGS IN OBTAINING DISCHARGE. 
 
 III. BONDS. 
 
 IV. FALSE DISCLOSURE. 
 
 I. ARREST OF MESNE PROCESS. 
 
 See Aeeest. 
 
 n. PROCEEDINGS IN OBTAINING DISCHARGE. 
 
 (a) Application and notice, and who mat make. 
 
 (b) Justices, and theik selection. 
 
 (c) Examination and proceedings. 
 
 (d) Appeaisal and assignment op pbopeett disclosed. 
 
 (e) Record and certificate op discharge. 
 
 "'' (a) Application and notice, and who may make. 
 
 1. By the act of 1856, c. 263, § 2, the court is authorized to receive 
 evidence that no service of a citation of a poor debtor wfis made upon 
 the creditor, notwithstanding such evidence may contradict the record 
 of the magistrates ; but a citation issued with a seal upon it which had 
 accidentally fallen off when it was served by the officer reading to the 
 creditor, is a good service, and not within the spirit or letter of that stat- 
 ute. Baldwin v. Merrill, xliv. 55. 
 
 2. A debtor, temporarily within this State, is not excluded from the 
 benefit of the provisions of the exemption clause in the statutes on at- 
 tachment. Everett v. Herrin, xlvi. 357. 
 
 3. When it is stated in the application and citation that the creditor 
 is out of the State, and that a person named is his attorney of record, 
 service on the attorney is legal and sufficient, there being no evidence 
 that the facts are not as stated. Smith v. Bragdon, xlviii. 101. 
 
 4. The citation to a creditor should, be under seal. If not, the objec- 
 tion should be taken on the hearing before the justices; and if overruled, 
 certiorari to quash the proceedings is the proper remedy. Lewis v. 
 Brewer, li. 108. 
 
 5. An officer may serve a citation upon the creditor, and, upon the 
 latter's neglect or unreasonable refusal, the former may appoint one of 
 the justices to hear the disclosure of the debtor, although such officer be 
 one of the sureties in such debtor's bond. Patterson v. Eames, liv. 
 203. 
 
 (b) Justices, and their selection. 
 
 6. The statute of 1856, c. 213, by repealing c. 148, § 46, R. S. of 1841, 
 repealed the statute of 1844, c. 88, amendatory of § 46. Blake v. Brack- 
 ett, XL VII. 28. 
 
412 POOR DEBTOR. 
 
 7. After the statute of 1856, c. 213, took effect, there was no provision 
 requiring the justices selected for taking the disclosure of a poor debtor 
 to reside in the town where the disclosure is made, or in an adjoining 
 town. Blake v. Srackett, xlvii. 28. 
 
 8. In April, 1857, a poor debtor having cited his creditor and selected 
 one of the justices, the creditor appeared and appointed a justice not 
 residing in the town where the disclosure was to be made, nor in an ad- 
 joining town ; the debtor objected, and refused to disclose ; but after an 
 adjournment by the former justice, another was selected by a proper 
 officer, and the debtor thereupon disclosed before the last two justices 
 named and took the oath. Ihld, that as the justice appointed by. the 
 creditor had a right to act, the subsequent proceedings were a nullity. 
 Slake V. Srackett, xlvii. 28. 
 
 9. In poor debtors' disclosures, each party is entitled to a reasonable 
 time for selecting one of the justices; and the whole of the hour named 
 in the citation is a reasonable time therefor. Foss v. Edwards, xlvii. 
 145. 
 
 10. A justice selected by a poor debtor to hear his disclosure, if he is 
 not related by consanguinity or affinity, and has no pecuniary interest in 
 the result, may be considered " disinterested ; " and his official act will 
 not be rendered void, because he had counseled and aided the debtor 
 in preparing for his disclosure, — although this should have deterred himi 
 from acting. JLovering v. Ziamson, l. 3B4. Cummings v. York, liv. 
 386. 
 
 11. And the fact that such justice was counsel for the debtor, in an 
 action subsequently brought upon the bond given to procure the release 
 of the latter fi-om arrest upon execution, will not affect the disclosure. 
 Cummings v. York, liv. 386. 
 
 (c) Examination and proceedings. 
 
 12. The provisions of c. 185 of the Public Laws of 1860, in relation to 
 the disclosure of poor debtors, apply as well to one who has been re- 
 leased from arrest by giving bond, as to one under actual arrest and im- 
 prisonment. City iBank v. Norton, xlviii. 73. 
 
 13. The last day of a six months' poor debtor's bond was Sunday. 
 He commenced his disclosure on the Saturday previous, but the proceed- 
 ings not being completed, the justiices adjourned to meet at the jail on 
 the Monday following.- Before the expiration of the six months, the 
 debtoi', to save a breach of the bond, voluntarily surrendered himself 
 and went into jail. On the Monday he was allowed to take the poor 
 debtor's oath by the justices who gave him a certificate thereof, by force 
 of which he demanded his release of the keeper of the jail, which being 
 refused, he brought an action of personal replevin against the jailer. 
 Seld, (1) That the certificate given being one applicable to a debtor 
 "enlarged on giving bond" and not to one in prison, the debtor was not 
 entitled to be discharged from jail; and (2) That the debtor could not, 
 when imprisoned, take advantage of an incomplete disclosure, commenced 
 before his surrender, but that he should commence his proceedings de 
 novo for a discharge. Garland v. Williams, xlix. 16. 
 
 14. Before commencing his disclosure, a poor debtor delivered to his 
 attorney a sum of money, as a partial payment of his indebtedness to 
 
POOR DEBTOR. 
 
 313 
 
 him, and also for the payment of the justices' fees, for taking the dis- 
 closure. Hdd, he was entitled to his discharge, notwithstanding the 
 creditor claimed the money. Levett v. Jones, xjlix. 355. 
 
 15. When the two justices shall, at any stage of the proceedings, dis- 
 agree upon any point or question, which must be decided before the case 
 can proceed, the third justice must be chosen. Ross v. Berry, xlix. 
 434. 
 
 16. The three justices constitute the tribunal, after the third has been 
 called in ; and, although the concurrence of two only is required, all 
 must act, in determining any question that may arise, until a final decis- 
 ion is made. Ross v. Berry, xlix. 434. 
 
 17. The disclosure of a poor debtor, who has procured his release from 
 arrest on mesne process, by giving the bond mentioned in R. S., c. 113, 
 § 16, is a statute proceeding. Marr v. Clark, lti. 542. 
 
 18. To be efiectual, the provisions of the statute relating thereto and 
 the condition of the iDond must be complied with. Marr v. Clark, xvi. 
 542. 
 
 19. If the debtor disclose and show that he has filed his petition in 
 bankruptcy and has been duly declared a bankrupt, and thereupon re- 
 fuses to "submit himself to" further "examination," and to "make true 
 disclosure of his business affairs and property on oath;" and the justices 
 refuse to hear any other legal and pertinent evidence adduced by the 
 creditor, the debtor will not thereby entitle himself to a discharge. 
 Marr v. Clark, lvi. 542. 
 
 20. If a discharge be granted in such case, the proceedings of the jus- 
 tices will be quashed on certiorari. Marr v. Clark, lvi! 542. 
 
 See Cbetioraei, 10, 11, 12, 13. 
 
 (d) Appraisal and assigninent of property. 
 
 21. Where a poor debtor disclosed notes secured by a mortgage of 
 rea,l estate, which he neither indorsed nor delivered to the creditor, but 
 deposited with the justices an assignment of them and of the mortgage, 
 which was neither sealed nor acknowledged, Seld, that the property 
 was not "duly secured to the creditor," as the statute requires, and the 
 justices were not authorized to issue their certificate of discharge. Leigh- 
 ton V. Pearson, xlix. 100. 
 
 (e) Record and certificate of discliarge. 
 
 22. A certificate applicable to a poor debtor "enlarged on giving 
 bond" will not discharge a poor debtor who has surrendered himself and 
 gone into jail. Garland v. Williams, xlix. 16. 
 
 23. If it does not afiirmatively appear from the justices' certificate of 
 discharge, or from the proof in the case that the justices were " disinter- 
 ested," the certificate will not defeat an action on the bond. Scamman 
 V. Ruff, LI. 194. 
 
414 
 
 
 POOR DEBTOR. 
 
 in. 
 
 BONDS. 
 
 
 (a) Form. 
 
 
 (b) On Mesne Pkocbss. 
 
 
 (c) Foe disclosure on ettecution. 
 
 
 (d) When the condition is broken, and when not. 
 
 
 (e) Damages. 
 
 (a) Form. 
 
 24. When a bond, given for release from aiTest on execution, is not 
 for just double the sura for which he is liable, and there is no evidence 
 that the error was occasioned by mistake, accident, or misapprehension, 
 the case is not within the provisions of § 43, of c. 148 of R. S. of 1841 ; 
 and it will not be regarded as a statute bond. Flowers v. Flowers, xlv. 
 459. M'.r chants Bank v. Lord, xlix. 99. ..Boss v. Berry, xlix. 434, 
 
 Call V. Foster, xlix. 452. 
 
 25. It is an essential non-compliance with the requirements of the 
 statute, if the approval of the surety in a six months' bond, in the man 
 ner prescribed by statute, is wahting. Randall v. Bovoden, xltiii. 37. 
 
 26. If a sis months' bond include " dollarage " as an item of the offi- 
 cer's fees, it is invalid as a statute bond. Ross v. Berry, xlix. 434. 
 Call V. Foster, xlix. 452. 
 
 27. It is not enough that the officer intended to make the bond con- 
 formable to the statute, and supposed " dollarage " a legal charge. Such 
 error is not by "mistake or accident" contemplated by R. S., c. 113, 
 § 44. Ross V. Berry, xlix. 434. Call v. Foster, xlix. 452. 
 
 28. Such error is the result of ignorance and not of " mistake or acci- 
 dent." Call V. Foster, xlix. 452. 
 
 29. A bond given by a person for his release from arrest on mesne pro- 
 cess, stipulating, in addition to the conditions prescribed by R. S., c. 113, 
 § 16, that the obligor will "take the oath prescribed in the 28th section 
 of said chapter," is invalid as a statute bond. Bell v. Furbush,Jiyi. 178. 
 
 (b) On mesne process. 
 
 30. A bond, taken on mesne process, conditioned that the principal 
 shall, " within fifteen days after the last day of the terra of the court at 
 which judgment shall be rendered, notify the creditor," &c., "to attend 
 his disclosure," is not saved by notice within fifteen days after judgment 
 but before the last day of the term of court, at which it is rendered, and 
 a disclosure upon such notice. Hunkins v. Palmer, XLVin. 251. 
 
 31. A bond given by a person arrested on mesne procei?s by virtue of 
 a defective certificate, is void. Sargent v. Roberts, lii. 590. 
 
 32. A bond given under R. S., of 1857, e. 113, § 16, is a " civil obliga- 
 tion" within R. S. of 1857, c. 77, § 8, clause 2, from the penalty of which 
 the court can give relief. Hence in an action thereon, evidence of the 
 insolvency of the principal is admissible. JDownes v. Reily, xin. 62. 
 
 (c) For disclosure on execution. 
 
 33. In a suit upon a six months' bond, where the defense was, that the 
 debtor had performed by taking the oath required, evidence that the 
 
POOR DEBTOR. 415 
 
 justice, who issued the notification to the creditor, was, at the time he 
 was ooraraissioned, a minor and not eligible to the office, was rightfully 
 excluded. Hooper v. Goodwin, xlviii. 79. 
 
 34. A bond, given by one of two execution debtors, who is correctly 
 described, to procure his release from arrest on execution in which the 
 name of one of the debtors is erroneously stated, is valid. JBlahe v. 
 Blanchard, xlvui. 297. 
 
 35. In an action on the bond of a poor debtor who had taken the oath, 
 it is not competent for the plaintiff to invalidate the record of the jus- 
 tices, by proof that the citation was not under seal. Lewis v. Brewer, 
 LI. 108. 
 
 36. The record of the justices, in a suit on a poor debtor's six months' 
 bond, cannot baimpeached collaterally when offered in evidence. Lewis 
 V. Brewer, li. 108. 
 
 37. By virtue of the Public Acts of the third session of the Thirty- 
 seventh Congress, c. 4, § 5, a poor debtor's bond, executed Feb. 9, 1863, 
 without being stamped, may be used in evidence in an action upon it, 
 provided it be duly stamped in presence of the court. Patterson v. 
 Eames, liv. 203. 
 
 38. So, by virtue of the Public Acts of the first session of the thirty- 
 eighth congress, c. 173, § 163, a magistrate's certificate of the administra- 
 tion of the poor debtor's oath, dated Aug. 8, 1863, may be given in evi- 
 dence in defense of such action, provided it be duly stamped in presence 
 of the court. Patterson v. Eames, liv. 203. 
 
 39. In debt on a poor debtor's bond, parol evidence is admissible to 
 prove that the justices, who heard the disclosure of the debtor, "made 
 out and delivered to the debtor " a certificate mentioned in R. S., c. 113, 
 § 31. Angier v. Smalley, lyi. 515. 
 
 40. And, when the former existence of such certificate is cleai-ly estab- 
 lished, parol evidence of its contents is admissible when it is lost. An- 
 gier V. Smalley, lti. 515. 
 
 (d) When the condition is broTcen, and when not. 
 
 41. Where a debtor, having given a six months' bond, attempted to 
 disclose, but did not complete his disclosure, and thereupon, within the 
 six months, surrendered himself to the custody of the jailer, and went 
 into jail, the penalty of the bond is saved. White v. Estes, xliv. 21. 
 
 42. If the debtor is improperly discharged by the jailer, the forfeiture 
 of the bond is saved nevertheless. White v. Estes, xliv. 21. 
 
 43. To save the forfeiture of a poor debtor's bond, some one of its 
 alternative conditions must be performed within six months from its date. 
 Morrison v. Corliss, xliv. 97. 
 
 44. A disclosure commenced, but not concluded, and the oath not 
 taken until the day after the expiration of the six months, is not a com- 
 pliance with the conditions of the bond, without tha consent of the cred- 
 itor, so as to entitle the debtor to " an assessment of the real and actual 
 damages." Morrison v. Corliss, xliv. 97. 
 
 45. If a debtor has taken the oath according to the terms of the bond 
 which is not a statute bond, this will be considered a performance, al- 
 though the proceedings were not in conformity to the statute. Flowers 
 
416 POOR DEBTOR. 
 
 Y. Flowers, xlv. 459. Merchants Bank v. Lord, xlix. 99. Ross v. 
 Berry, xlix. 434. Bell v. Furhush, lvi. 178. 
 
 46. When debts due to a poor debtor are disclosed, but they are not 
 appraised by the justices, the condition is not fulfilled, although he is al- 
 lowed to take the oath. And the creditor is entitled to recover upon the 
 bond. Jones v. Spencer, xltii. 182. 
 
 47. A forfeiture of a six months' bond not made in conformity with 
 the statute, will be saved, if the debtor takes the oath, named therein, 
 notwithstanding, before the expiration of six months, and before the tak- 
 ing of the oath, a new statute is in force by which the poor debtor's oath 
 to be taken is materially changed. Randall v. Bowden, xi.viii. 37. 
 
 48. Where, at the time and place fixed by the citation for the dis- 
 closure, the justices duly chosen by the parties presenl^ disagreeing as 
 to the sufficiency of the service of the citation, selected a third justice, 
 and a majority of the court thus constituted, holding the service insuf- 
 ficient, refused to hear the disclosure and recorded their proceedings; 
 and the creditor's attorney, together with two of the magistrates, al- 
 though notified that the debtor persisted in proceeding to disclose under 
 the citation, notwithstanding the adjudication, withdrew, whereupon the 
 justice originally chosen by the debtor, adjourned for a few minutes to 
 procure the attendance ef another justice; and the creditor neglecting 
 to choose, one was duly selected in his behalf by a deputy-sheriff; and, 
 before the tribunal thus constituted, the debtor submitted himself to ex- 
 amination, made a true disclosure of his business affairs and property un- 
 der oath, and took the oath specified in his bond. Held, that there was 
 a common-law compliance with the conditions of a bond which was good 
 only at common law. BdlY. Furhush, lvi. 178. 
 
 (e) Damages. 
 
 49. A poor debtor cited his creditor, and selected one of the jus- 
 tices. The creditor appointed a justice not resident in the town where 
 the disclosure was to be made, nor in an adjoining town ; the debtor ob- 
 jected, and refused to disclose, but after an adjournmTjnt by the former 
 justice, a. third was selected by a proper officer, before which two last- 
 named justices the debtor made disclosure and took the oath. Hdd, 
 that as the justice selected by the creditor had a right to act, the subse- 
 quent proceedings were a nullity, and in a suit on the bond full damages 
 were awarded. Blake v. Brackett, xltii. 28. 
 
 50. Where the oath was administered to a poor debtor, by magistrates 
 not incapacitated by interest, relationship, or otherwise, and the case is 
 within their general jurisdiction as justices of the peace and quorum, al- 
 though their action was premature and void, the damages in an action 
 on the bond are to be assessed by a jury, under R. S., c. 113, § 48. Foss 
 V. Edwards, xlth. 145. 
 
 51. So where notes secured by a mortgage on real estate were dis- 
 closed by the debtor, but were not " duly secured " to the creditor by 
 proper assignment and delivery. Leighton v. Pearson, xlix. 100. 
 
 52. In a suit upon a six months' bond not made in conformity with the 
 statute, the creditor will be entitled only to the actual damages he has 
 sustained, where there had been no attempt to perform either of its al- 
 ternative conditions, CoM v. Foster, xlix. 452. 
 
POUND-KEEPER, 417 
 
 53. In the absence of other testimony than the bond, damages on such 
 a bond should be assessed for the amount of the judgment, with interest. 
 Call V. Foster, lii. 257. 
 
 IV. FALSE DISCLOSTJEB. 
 
 54. An action under R. S. of 1841, c. 148, § 47, for a false disclosure 
 by a poor debtor should be brought in the name of the judgment credi- 
 tor. Dyer v. Bwfnham, xltiii. 298. 
 
 POST-OFFICE. 
 
 See Evidence, 5. 
 
 POUND-KEEPER. 
 
 1. Where the statute requires a public officer to give a bond, to be ap- 
 proved before the acts, he cannot justify as an officer de jure, until such 
 a bond has been given and approved. Sounds v. Bangor, sxvi. 541. 
 
 2. A person who has been duly elected as pound-keeper, and has 
 taken the oath of office, has no power to act until he has filed his of- 
 ficial bond, and it has been approved. Rounds v. Bangor, xlvi. 541. 
 
 3. A city or town is not responsible in damages for the acts of a per- 
 son claiming to be pound-keeper, done before the approval of his official 
 bond. Bounds v. Bangor, xlvi. 541. 
 
 PORTLAND, CITY OF. 
 See Wat. 
 
 27 
 
418 PRACTICE. 
 
 PRACTICE. 
 
 I. APPEAKANCE. 
 II. EEPORT AND EXCEPTIONS. 
 
 III. MOTIONS AND PKOCBEDINGS IN COUKT BEFORE TEIAL. 
 
 IV. TEIAL. 
 
 I. APPBAEANCE. 
 
 1. The entry of a special appearance for the defenrlant does not dis- 
 pense with the observance of the Rule of Court, requiring pleas and mo- 
 tions in abatement to be filed within two days after the entry of the ac- 
 tion. Mitchell V. Union Life Ins. Co., xlv. 104. 
 
 2. In a case of petition for partition within the provision 6f R. S. of 
 1841, c. 121, § 9, whether the person moving for leave to appear and de- 
 fend should be admitted is a question of discretion ; and its exercise at 
 nisi prius will not be reversed on exceptions by the full court. Huntress 
 V. Tiney, xlvi. 83. 
 
 II. EEPOET AND EXCEPTIONS. 
 
 3. A motion for a new trial, on the ground that the verdict is against 
 the weight of evidence, will not be considered by the full court, unless 
 the report of the evidence is duly authenticated by the judge who pre- 
 sided at the trial. Simpson Y. Norton, -s.i,Y.2^i. 
 
 4. A civil action, on demurrer and joinder, cannot legally come before 
 the full court on report; but must, under R. S., c. 82, § 19, be presented 
 on exceptions. iSteveriS v. Webster, xlv. 615. 
 
 5. Upon a motion for a new trial, it was contended that a witness had, 
 at a previous trial of the same issue, given evidence contradictory to his 
 later testimony, but which was not made to appear in the report upon 
 which the motion was based. Ifelcl, that the court can only act upon 
 the evidence as reported ; and that if the moving party intended to avail 
 himself of such alleged contradiction, he should have proved it at the 
 last trial. Dickey v. Maine Tel. Co., xlvi. 483. 
 
 6. Where a judge at nisi prius, certified the evidence in a case, with 
 his rulings, as matter of law, upon the facts which he found proved, and 
 no exceptions were taken to the rulings, the case was considered by the 
 full court as one presented on report. JBanchor v. Mansel, xlvii. 58. 
 
 7. Whether by R. S. of 1857, c. 126, a person obtaining property by 
 false pretences, is guilty of felony, so that he cannot impart to an inno- 
 cent purchaser a title against the former owner, is not an open question, 
 where a case is presented upon a bill of exceptions, from which it does 
 not appear that any request for instruction on that point was made at 
 nisi prius, and the report of the testimony disclosed no false pretences 
 on his part, other than his having possession of the property, claiming 
 and selling it as his own. Abbott v. Marshall, XLvni. 44. 
 
 8. If objections are filed and prosecuted to the acceptance of the re- 
 port of the referee, and they are overruled at nisi prius, as being insuffi- 
 
PRACTICE. 
 
 419 
 
 cient to prevent the acceptance of the report, even though the allega- 
 tions should be proved, and exceptions are taken to this ruling, it cannot 
 be urged against sustaining the exceptions, that no evidence was offered 
 to prove the alleged facts. Black v. JUcJcey, XLViii. 545. 
 
 9. When a case has been reported to the full court, if the plaintiff 
 subsequently discharge the suit and the validity of the discharge is con- 
 troverted, this court may properly remit the case to the county court, to 
 enable the parties to plead and try the issue raised by the pleadings. 
 GaU V. FoDter, xlix. 452. 
 
 10. The question of quashing an indictment on motion, may be re- 
 served for the full court on report. State v. Maker, xiiix. 569. 
 
 11. On'motions for new trials, on the ground of newly discovered evi- 
 dence, it is necessary not only to present the evidence alleged to have 
 been newly discovered, but also a full report of the evidence introduced 
 at the trial, that the court may be able to determine whether the addi- 
 tional facts proposed to be proved, are in fact new evidence, and also 
 whether, if admitted in connection with the other evidence, a different 
 result would have been produced. Brann v. Yassalbord , l. 64. 
 
 12. It should also be made to appear, that reasonable diligence had 
 been used to discover and produce the alleged'new evidence at the for- 
 mer trial. Brann v. Vassalboro', l. 64. 
 
 13. If the statute provided that referees might certify a report of evi- 
 dence to the court, a report certified by one, only, would be insufficient, 
 especially when it does not purport to be in behalf of the board. Brann 
 v. Vussalboro', l. 64. 
 
 14. The report of evidence, though signed by the presiding judge, ie 
 not admissible to prove what a witness testified to on a former trial, for 
 the purpose of contradicting him. Webster v. Golden, lv. 165. 
 
 15. It is irregular for the full court, under a bill of exceptions, to de- 
 termine controverted matters of fact. Gurtis t. Bownes, lvi. 24. 
 
 See Ambn'dment, 43. 
 
 in. MOTrONS AND PEOCEEDINGS IN COURT BEFOEE TRIAL. 
 
 (a) MoTioisrs in abatement. 
 
 (b) Generally. 
 
 (a) Motions in abatement. 
 
 16. Pleas in .ibatement to the jurisdiction are to be filed within the 
 first two days of the term at which the action is entered. Stetson v. 
 Gorinna, xliv. 29. 
 
 17. A motion in abatement can only be sustained where the defect is 
 disclosed upon inspection of the writ. Badger v. Towle, XLvm. 20. 
 Billings v. Berry, l. 31. 
 
 18. Where the plaintiff described himself, in his writ, as "late of Kit- 
 tery, in the county of York," and the defendant, as of Portsmouth, in 
 the State of New Hampshire ; and an officer of the county of York, 
 certified personal service upon the defendant, a motion to dismiss for 
 
 • 
 
420 PKACTICE. 
 
 want of jurisdiction will not be sustained. Badger v. Towle, xlviii. 
 20. 
 
 19. Where an appellant fails to produce the proper copies in the ap- 
 pellate court, the action may upon an oral motion, and without written 
 complaint, be dismissed. Sunt&r v. Cole, xlix. 556. 
 
 20. If allegations, requiring proof of matters dehors the record, are 
 embraced in a motion in abatement, they will be disregarded. BiUings 
 V. Berry, l. 31. 
 
 21. A motion in abatement of a complaint for flowage, alleging "that 
 said complaint was brought before the expiration of one year after the 
 rendition of judgment upon the original complaint," was properly over- 
 ruled. Billings v. Berry, l. 31. 
 
 See Abatement. 
 
 (b) Generally, 
 
 22. If a recognizance, taken before a magistrate on an appeal, is 
 not returned when the appeal is entered, it may be received and entered 
 of record by leave of court, after a motion to dismiss for that cause. 
 Stetson V. Corinna, xliv. 29. 
 
 23. A copy of recognizance should not be returned to court, and can- 
 not be entered of record ; neither is a copy admissible to contradict an 
 original, or show it defective. Stetson v. Corinna, xliv. 29. 
 
 24. A motion to dismiss for want of jurisdiction, after verdict, may be 
 treated as a motion in arrest of judgment. Stetson v. Corinna, xnv. 29. 
 
 25. When a party is allowed to amend on terms which are accepted by 
 him, this court will not subsequently modify those terms, though it should 
 appear that the amendment was unnecessary. Whether this court has the 
 power thus to interfere, qucere. Simpson v. Norton, xlv. 281. 
 
 26. Under R. S., c. 82, § 101, a plaintiff who has had costs awarded 
 against him in a former action, cannot maintain a suit upon the same 
 cause of action until such costs are paid, although a new and additional 
 cause of action is embraced in the second writ. Morse v. Mayherry, 
 
 XLVIII. 161. 
 
 27. Where a writ was duly served and returned into court, but erro- 
 neously entered in the name of the plaintiff in interest, to which the de- 
 fendants answered, the court, at a subsequent term, may, under R. S., c. 
 82, § 10, permit the docket entry to be corrected, so that it will conform 
 to the writ, upon such conditions, as will save the rights of the-defendants 
 to file any plea or motion required to be filed at the first term. Smith 
 V. Wood, xLvin. 252. 
 
 28. If there be any legal objection to the court, it should be seasonably 
 made ; and proceeding to trial without objection, if known, is a waiver 
 of it. Yeazie v. Bangor, Lin. 50. 
 
 See Abatement. 
 
PRACTICE. 421 
 
 IV. TRIAL. 
 
 (a) Loss AND DBSTEUCTl'ON OF PAPBKS. 
 
 (b) Depositions. 
 
 (c) Examination of witnesses. 
 
 (d) Mode op conducting tkials and abguments. 
 
 (e) Issue to be tkibd. 
 
 (f ) Agreement of parties. 
 
 (g) Oedebing a nonsuit, default, oe otheb judgment. 
 
 (h) POWEB OF COUKT TO DIBECT COURSE OF TRIAL. 
 
 (i) Instructions to the juet. 
 ( j ) Assessment of damages. 
 (k) Bulbs op coukt. 
 ( 1 ) Befoeb law couet. 
 (m) Generally. 
 
 (a) Zioss and destruction of papers. 
 
 29. What will constitute due diligence in the search for public records 
 and documents, so as to admit secondary evidence of their contents, will 
 depend upon the circumstances of each particular case. Simpson v. 
 Norton, XLV. 281. 
 
 30. When the register of probate testified that he had made search of 
 the records in the case of S. N. ; that he found but part of the papers; 
 that he found the files in bad order and condition; that some of the files 
 were broken open and loose ; and that he examined the indexes for the 
 year or two spoken of, without finding tlie papers desired, or reference to 
 the records thereof, the court will admit parol evidence of the contents of 
 such papers, especially when the transaction occurred many years be- 
 fore. Simpson v. Norton, xlt. 281. 
 
 31. In order to let in secondary evidence of the contents of a lost or 
 destroyed deed, or other instrument, the party should, generally, show 
 diligent search made therefor in those places where, under the circum- 
 stances, it would probably be deposited ; and, in the absence of proof or 
 circumstances strongly tending to show the contrary, the presumption is, 
 that those legally entitled to the custody of the paper, actually have 
 such custody. Kidder v. Blaisdell, xlt. 461. Hammond v. Ludden, 
 XL VII. 447. 
 
 32. To thus prove the contents of a note in suit, there should be rea- 
 sonable certainty of its loss; and that certainty is not shown, until it ap- 
 pears that the note is not in the possession of any of the persons, in whose 
 hands there is reason to suppose it may have been. Hammond v. JLud- 
 den, XL VII. 447. 
 
 See Evidence, 1-8. 
 
 (b) Deposition. 
 See Deposition. 
 
 (c) Estamination of witnesses. 
 
 38. If the incompetency of a witness, for any cause, becomes manifest 
 by legal evidence, at any stage of the trial, his testimony should form no 
 part of the evidepce to be considered, if seasonably objected to. State 
 V. Damery, xltiii. 327. 
 
422 PRACTICE. 
 
 34. Objections to the competency of a witness, known to the party 
 ohjecting, are not seasonably taken, unless made before examination. 
 State V. JDamery, xLVin. 327. 
 
 35. If they first become known after the examination has commenced, 
 they are waived if the examination is prosecuted after the discovery. 
 State V. Damery, xlviii. 327. 
 
 36. When the answer of a witness is susceptible of two meanings, one 
 of which would render it admissible and the other not, before asking its 
 exclusion the witness should be required to explain ; and if the explana- 
 tion be such as to render the answer inadmissible, then and not before 
 the pi-esiding judge may be called upon to exclude it. Humphries v. 
 Parker, lii. 5U2. 
 
 (d) Mode of conducting trials and arguments. 
 
 37. The non-production of a writing, shown to be in the hands of a 
 party who has been duly notified by the opposite party to produce it at 
 the trial, is a circumstance that may be properly considered by the jury, 
 and commented upon by counsel in argument. Tohin v. Shaw, xlv. 
 331. 
 
 38. If a demurrer may be properly filed to a specification of defense, 
 the defendant may take advantage on argument on demurrer of any de- 
 fect in the plaintiff's writ; and judgment will be against the party whose 
 pleadings were first defective in substance. Calais v. JBradfurd,iji.4A^. 
 
 (e) Issue to he tried. 
 
 39. In appeals from the probate court, when questions of fact arise, the 
 proceedings are analogous to those in courts of equity, when issues of 
 fact are prepared for the jury, under the direction of the court. Wilhee 
 V. Howe, XLV. 571. 
 
 40. The form of the issues may be agreed upon by the parties, subject 
 to the approval of the court; or, if the parties disagree, that matter may 
 be referred to a master. Withee v. JRowe, xlv. 571. 
 
 41. The court will determine what questions shall be submitted to the 
 jury. Whether all the facts in dispute shall be settled by the jury, is 
 subject to the discretion of the court. There may be important ques- 
 tions of fact, not submitted to the jury, which will control the final decree 
 of the court. Withee v. Howe, xlv. 571. 
 
 42. Upon an appeal from a decree allowing and approving a will, the 
 great question embracing all others, is whether the instrument is the last 
 will and testament of the person appearing on its face to be the testator. 
 But this is not a question for the jury. It involves matters of law, as 
 well as of fact, and is to be determined by the court in the final decree, 
 upon the law applicable to all the facts, whether settled by the jury, or 
 by the court. Witliee v. Howe, xlv. 571. 
 
 43. In an action of trespass, if the defendant neglects to tender an issue, 
 and the parties go to trial without any issue joined, and the plaintiff re- 
 covers a verdict, as upon the general issue, it will not be disturbed on 
 the defendant's motion for this cause. Maxwell v. Potter, xlvii. 487. 
 
PEACTICE. 
 
 4^3 
 
 44. Where, from the disclosure of a trustee, it appears that he has 
 been notified by the principal defendant, that the funds in his hands be- 
 long to a deceased person, of whose will the defendant was executor, and 
 the defendant, ns executor, applies to the court to be admitted to contest 
 the question with the plaintiff, the issue to be determined is, not whether 
 the trustee is chargeable, but whether the funds belong to the defendant 
 in his individual character, or to the estate of his testator. Dalton v. 
 Dalton, xLviii. 42. 
 
 See FoKciBLE Entet, &c., 13. 
 
 (t) Agreements of parties. 
 
 45. After judgment rendered on a writ of error, affirming the original 
 judgment against the principal defendant, the parties agreed in writing 
 to submit the question of the taxation of costs allowed in the original ac- 
 tion to a judge, and indorse the amount disallowed, if any. In an ac- 
 tion upon the bond, Held, it was for the defendant to procure the re- 
 vision of costs. Pierce V. Goodrich, xhvii. 17 B. 
 
 46. Where parties to an action pending agree that it shall abide the 
 result in another case, and a memorandum of such agreement is entered 
 upon the docket, the parties are bound by it. Cumniings v. Smith, l. 
 568. 
 
 47. The defendant thereby waives a trial by jury. After he has con- 
 sented that judgment may be rendered against him, he is not entitled to 
 a jury trial, to fix the amount of damages. Curamings v. Smith, l. 568. 
 
 (g) Ordering a nonsuit, default, or other judgment. 
 
 48. A defendant cannot be defaulted on the ground that his specifica- 
 tions of defense are defective, if the plaintiff's declaration is also defec- 
 tive. Shelden v. Call, lt. 159. 
 
 See Nonsuit. 
 
 (i) Instructions to the jury. 
 
 49. Though instructions are technically accurate, yet, if they are cal- 
 culated to mislead the common and ordinary mind, not conversant with 
 legal terms and phrases, the verdict will be set aside. Gilmore v. Mc- 
 Neil, XLV. 599. 
 
 50. In an action of trover against several defendants, the refusal of the 
 presiding judge to instruct the jury that they are authorized (if ihey so 
 find), to return a verdict against some of them, and in favor of the oth- 
 ers, was erroneous. Powers v. Sawyer, xlvi. 160. 
 
 51. In an action against the owners of a steamer, for collision with a 
 schooner, the judge was requested to instruct the jury, that, " if they 
 should find that the persons in charge of the steamer saw the schooner 
 in season to notify her of their approach, by ringing the bell or blowing 
 the whistle, before the schooner saw the steamer, and, in consequence of 
 neglecting to do so, the collision occurred, then .they were in fault, and 
 the defendants should pay the damages, unless they should also find that 
 the vessel was in fiiult for some other cause. Held, (1) That the requested 
 instruction was properly declined ; and (2) That it is not the rights of 
 
424 PRACTICE. 
 
 a party, to seize upon one, two, or more of the facts bearing upon the 
 question of fault, and ask the judge to rule upon their weight or effect as 
 evidence. Sawyer v. Eastern Steamboat Co., xtvi. 400. 
 
 52. In an action against an officer for not safely keeping goods at- 
 tached on a writ, instructions that, where the officer has taken the goods 
 into his custody, and has not stated in his return on the execution that 
 they were taken from him without his fault, the burden is on him to 
 show that he exercised ordinary care in keeping them, and he must sat- 
 isfy the jury that they were lost without his fault, — are not so favorable 
 to him as he has a right to demand. Mills v. Gilbreth, xlvii. 320. 
 
 53. A presiding judge is not required to define to the juiy the mean- 
 ing of words in common and ordinary nse, or to which the law has at- 
 tached no specific meaning. Serry v. Billings, xlvii. 328. 
 
 54. Where intoxicating liquors are alleged in the complaint and war- 
 rant to be kept and deposited in a certain " south store," and such liquors 
 are, on search, found in a chamber or second story over the same store, in- 
 structions that the jury would judge from the evidence in the case with 
 their knowledge and experience as practical men as to how stores on the 
 ground floor, and rooms over them, are generally used by merchants, 
 whether the chamber or second story was in fact a part of the said store, 
 are erroneous, as susceptible of being construed to authorize the jury to 
 act upon their own knowledge or experience as evidence. State v. Bart- 
 lett, XLVII. 388. 
 
 55. Requests for instructions to the jury, upon matters of fact, are 
 rightly denied. State v. Mayberry, xlviii. 218. 
 
 56. The rights of a party are not aflfeeted by the withholding of re- 
 quested instructions which are not pertinent to the issue. Gordon v. Gil- 
 man, xlviii. 473. Clark v. Rockland W. I*. Co , lii. 68. lAme Mock 
 Bank v. Hewett, lii. 531. State v. Yeaton, liii. 125. 
 
 57. In an action for a personal injury, caused by a defect in a highway, 
 a request to instruct the jury "if they find that, at the time of the acci- 
 dent, the plaintiff was intoxicated, this, of itself, would constitute such a 
 want of ordinary care as would preclude him from the right to recover," 
 was properly refused ; the question, what constituted ordinary care, be- 
 ing one for the determination of the jury. Stuart v. Machiasport, XLVin. 
 477. 
 
 58. Where, in assumpsit, it is alleged in the writ that the defendant, 
 after giving the plaintiff a permit to cut timber for a specified period on 
 all of a certain tract of land, except a part which he had previously en- 
 gaged to a third party, and which part the defendant, at the making of 
 the contract, described and defined ; but that the defendant, afterwards, 
 granted a permit to the third paity covering a much larger territory than 
 he had represented to the plaintiff as engaged ; a refusal to instruct the 
 jury that the plaintiff may recover damages whether the false represen- 
 tations were made to him by the defendant from misrecollection or mis- 
 take, or with a fraudulent intent, was not erroneous, if the writ does not 
 allege a promise on the part of the defendant that a specified portion of 
 the tract in question was the part engaged to the third party. Small v. 
 Gilman, xlviii. 506. 
 
 59. Neither was it erroneous for the judge to refuse to instruct the 
 jury that if the defendant gave the plaintiff a permit which covered 
 
PRACTICE. 425 
 
 a certain tract, and afterwards gave a third party a permit embracing a 
 part of the same tract, on which said party cut timber included in the 
 plaintiff's permit, the plaintiff is entitled to damages in this form of ac- 
 tion. Such acts would be tortious, and, if proved, would not support the 
 promise alleged. Small v. Gilman, xlviii. 506. 
 
 60. In trover involving the conditions of a permit to cut logs on the 
 plaintiff's land, instructions that, after the defendant has proved that he 
 had a license to cut the timber, the burden was on the other party to 
 show it was conditional and a lien reserved, are erroneous. Frentiss v. 
 Hoberts, xlix. 127. 
 
 61. If the instructions applicable to the case be correct, the verdict 
 will not be set aside, although the presiding judge gave erroneous in- 
 structions upon matters not relating to the case. Witherell y. Maine 
 Ins. Co., XLIX. 200. 
 
 62. In a real action, a refusal of the presiding judge to instruct the ju- 
 ry, that an actual location made by the parties to the deed under which 
 demandant claimed, any time after the conveyance, is conclusive, is not 
 erroneous. Williams v. Jiu/cer, xlix. 427. 
 
 63. A party is not injured by a refusal to give requested instructions 
 based upon alleged, facts, which the jury find are not proved. Perhins 
 V. Hitchcoch, xlix. 468. Tainter v. Lombard, liv. 554. 
 
 64. In an action upon a collector's bond, instructions that if any surety 
 signed the bond upon the condition that all whose names were accepted 
 by the town should sign, otherwise the bond should not be delivered, 
 such surety would not be liable, if all did not sign, unless he subsequent- 
 ly waived the condition ; but that, if without that condition, he signed 
 for the purpose of indemnifying the town for any breach of duty by the 
 collector, and the bond was left to be delivered and used for that pur- 
 pose, and was so delivered, the surety would be bound, notwithstanding 
 he may have expected, when he signed it, that all would become sureties 
 whose names were accepted by the town, were unobjectionable. JRead- 
 field V. Shaver, l. 36. 
 
 65. On the trial of an indictment for making and uttering a forged 
 deposition, to procure a divorce by the respondent from his wife, Held, 
 that a requested instruction, that the respondent could commit no fraud 
 in law upon his wife, was properly refused. State v. Kimball, l. 409. 
 
 66. If exceptions are taken to the refusal of the presiding judge to give 
 a requested instruction, and it does not appear what instructions are ac- 
 tually given, unless the requested instruction presented the true rule of 
 law applicable, and lacked no qualification whatever, the exceptions will 
 be ovei ruled. MwrshaU v. Oakes, li. 308. 
 
 67. Aliter, if the refusal necessarily implies that a contrary and incor- 
 rect rule was given; or that the jury were left without instructions on 
 the point; or where they cover the whole principle, and it is clear that 
 the case required that the law should be thus stated, although only the 
 requests appear in the case. Marshall v. Oakes, li. 808. 
 
 68. In an action upon a bond for support during life, an instruction 
 that the plaintiff must show how much she ought to recover, is in favor 
 of the defendant, and he cannot complain of it. PMlhrooh v. Burqess, 
 Ln. 271. 
 
426 PRACTICE. 
 
 69. So in the instruction that the jury are to assess all the damages 
 that have accrued to the time of the trial. Philhrook v. Burgess, lii. 
 271. 
 
 70. Instructions to the jury upon questions not passed upon by them' 
 in rendering their verdict, are no cause for setting it aside, even if erro- 
 neous. Honey V. Chase, lii. 304. 
 
 71. An instruction is to be regarded as an absolute rule of law only 
 under the state of facts existing in the case and the other rulings re- 
 ported and unreported, unless it otherwise appear from the instruction 
 itself. Sldensparlcer v. Sidensparker, lii. 481. 
 
 72. This court will presume that, in other respects, proper instruc- 
 tions were given ; and, if the party excepting desired more definite in- 
 structions, he should have made the request. Sidensparker v. iSidens- 
 parker, lii. 481. Hewey v. Nourse, liv. 256. 
 
 73. Where a tenant in a real action proved his open and exclusive oc- 
 cupation for thirty years, receiving rents and profits without rendering 
 any account thereof^ clearing the land and erecting buildings thereon, it 
 is erroneous for the presiding judge to instruct the jury to bring in a ver- 
 dict joro/o?-wa for the plaintiff. MatouY. Jacobs, JAi. '^M). 
 
 74. Where the plaintiff, as payee, indorsed and delivered a negotiable 
 promissory note to an attorney, who sued it in the name of a tliird per- 
 son with his consent; and, after default, the attorney claiming to own 
 the note, transferred the demand with the accruing costs to the defend- 
 ant, for a valuable consideration, who thereupon collected the same; 
 whereupon the plaintiff sued the defendant in assumpsit for money had 
 and received. Meld, that the presiding judge properly refused to in- 
 struct the jury, at the plaintiff's request, that the transfer to the defend- 
 ant, if actually made, did not devest the plaintiff's title to the note or 
 judgment, if the defendant knew the note was not passed from the plain- 
 tiff until after it became due and dishonored. Connell v. JBliss, lii. 476. 
 
 75. Neither was it erroneous for the presiding judge to instruct the 
 jury that if the defendant purchased said note of the attorney fairly, and 
 for an adequate consideration, without notice of defect in his title 
 thereto, the plaintiff could not recover; that the fact that the note was 
 overdue and dishonored, would not be such notice to the defendant as to 
 make the plaintiff to assert his title against him. Connell v. Bliss, lii. 
 476. 
 
 76. N"or to instruct the jury that the plaintiff was not liable for the 
 amount of the costs in the action upon the note transferred. Connell v. 
 Bliss, LII. 476. 
 
 77. Instructions to a jury are to be construed in connection with the 
 evidence in the case. Casco Bank v. Keene, liii. 103. 
 
 78. Thus, in an action by a bank, upon a promissory note, pui-porting 
 to have been signed by the defendant, the instruction that if the plain- 
 tiffs, relying on the defendant's admission, were induced to refrain from 
 obtaining security from him who actually wrote the defendant's signa- 
 ture to the note, by his arrest, or by an attachment of his property, and 
 they tliereby sustained an injury, then the defendant would be estopped 
 from denying his signature, is correct when taken in connection with 
 the fact proved, that the defendant knew that the president of the bank 
 
PRACTICE. 427 
 
 went to him for the express purpose of ascertaining whether or not the 
 signature was genuine, and that he thereupon admitted it was. Casco 
 Bank v. Keene, liii. 103. 
 
 79. So also is the instruction that if the defendant, knowing that the 
 signature was not genuine, told the president that it was his signature, 
 it was such an adoption of it as would render him liable upon the note, 
 when predicated upon the same facts. Casco Bank v. JKeene, liii. 103. 
 
 80. In the trial of an indictment for an unlawful assembly and vio- 
 lently assaulting a member of a lyceum, at the door of a common school- 
 house, because he refused to let the defendants enter, the presiding 
 judge properly refused to instruct that such member had no legal right 
 to e.'cclude the defendants from attending the lyceum, even though they 
 were inhabitants of the district in which the school-house was situate. 
 State V. Yeaton, liii. 125. 
 
 81. Also, to instruct that the defendants had a legal right to use suf- 
 ficient force to enter said school-house for the purpose of attending the 
 lyceum, when they attempted it. State v. Yeatott, liii. 125. 
 
 82. It is the province of a judge, at nisi prius, to state to the jury 
 the claitri set up by each of the parties, as disclosed by the evidence, and 
 to instruct them upon the law applicable thereto. Grout v. Nichols, liii. 
 383. 
 
 83. It is competent for the presiding judge to instruct the jury as to 
 the legal effect of any one of several facts relied upon to establish a 
 waiver; leaving it to the jury to pass upon the general question from all 
 the evidence in the case. Grout v. Nichols, liii. 383. 
 
 84. In a case under R. S., c. 26, § 16, for damages caused by the 
 spreading of a fire, kindled by the defendant upon his own land, an in- 
 struction that, if the defendant was in any fault in setting or guarding 
 the fire, at any time before it was blown by the violent wind upon the 
 plaintiff's land, and, in consequence of such fault, the wind carried the 
 fire there, then the defendant would be liable, although, after it was so 
 blown, it was beyond human control until the plaintiff's property was 
 destroyed, is unexceptionable on the part of the defendant, it being 
 predicated upon the presumption that the presiding judge gave the 
 proper instructions as to the " fault " mentioned. JSewey v. JVburse, lit. 
 256. 
 
 85. In 1859, the plaintiff and son, residing in one family, gave their 
 joint and several note for a wagon, which was to remain the property of 
 the former until the note was paid by the son. The wagon was used by 
 the family until August, 1862, when the son took the wagon by force, 
 and sold it to the defendant. In July and December, 1862, the plaintiff 
 and son passed mutual receipts "in full of all indebtedness." It was in 
 evidence that the parties to the latter receipt expressly agreed that the 
 matters in relation to the wagon were not included in the receipt. In 
 replevin for the wagon, Held, that the presiding judge properly declined 
 to instruct the jury that, if the father was to hold title to the wagon as 
 security for signing the note till paid for by th'e son, and signed as surety 
 and afterwards gave the receipt of July, 1862, such receipt, if uncontra- 
 dicted, would be a discharge of the sums so paid, and the plaintiff would 
 no longer be entitled to hold the wagon. Tainter v. Lombard, lit. 
 554. 
 
428 PRACTICE. 
 
 86. In the trial involving 'a formal controrersy the jury were in- 
 structed, that, if the matter was all settled up by the parties and they so 
 understood it, each party presenting a claim against the other, and the 
 asserted settlement was not a myth, but a reality, it constituted a de- 
 fense. To this the plaintiff excepted, upon the ground that the instruc- 
 tion did not require the jury to find that the specific matters embraced 
 in the declaration were settled. Held, that where it appeared that the 
 " matter was all settled up " in good faith, this court will not inquire 
 whether every matter of mutual aggravation in a personal conflict was 
 canvassed in the adjustment. Doyle v. Donnelly, lvi. 26. 
 
 87. Where the sanity of a grantor, at the time of executing a deed of 
 the land in controversy, is in issue, the party seeking to uphold the deed 
 cannot justly complain of the instruction, that mere nervous excitement 
 or mental, weakness would not be sufficient to defeat the operation of the 
 deed; but, if the grantor had the mental capacity to know and ration- 
 ally understand and comprehend the nature of the business she was then 
 transacting, that was all the law required to render her deed effectual. 
 Darby v. Say ford, lvi. 246. 
 
 88. When additional instructions in matters of law are desired, spe- 
 cific requests should be made. Darby v. TIayford, lvi. 246. 
 
 89. The court cannot be required to instruct generally as to the legal 
 bearing of selected portions of the testimony. Darby v. Hayford, lvi. 
 246. 
 
 See Aditlteey, 2, 3. 
 
 Breach op Peomise, &o., 9. 
 
 Damages, 6. 
 
 Exceptions. 
 
 Fraud, 35. 
 
 Insurance, 46. 
 
 Joint Tenant, &c., 19, 20. 
 
 Landlord, &c., 24. 
 
 Libel, &c., 2. 
 
 New Trial, 34. 
 
 (j) Assessment of damages. 
 
 90. It is no part of the duty of the full court to audit or adjust accounts, 
 or determine the balance due. Gilman v. GunningJiam,, xliv. 502. 
 
 91. When the principles upon which the rights of parties are estab- 
 lished, the cause should be remanded to the county court where it is 
 pending, Gilman v. Cunningham, xliv. 502. 
 
 92. Under an agreement that the court determine for what sum judg- 
 ment may be entered, the amount due should be ascertained by the pre- 
 siding judge, or an auditor. Oilman v. Cunningham, xliv. 502. 
 
 93. In an action upon a bond given by a plaintiff in an action of re- 
 view in which the verdict was for increased damages, on suggestion that 
 the excess of the second over the first verdict consisted of a coming in- 
 terest, the court, unless parties agree, will refer it to a judge at nisiprius 
 to determine what part if any of the excess was interest, and to make an 
 equitable deduction from the interest to be recovered in the suit on the 
 bond. Crehore v. I'ike, xLvn. 435. 
 
PRACTICE. 
 
 429 
 
 94. In trover, after default, the defendant is entitled to be heard in the 
 assessment of damages by the court, he having moved for a hearing be- 
 fore the final adjournment, and before judgment. B&gg v. Whittier, 
 XLViii. 314. 
 
 95. After default in actions, where the amount of judgment depends 
 upon mere calculation, the damages are determined by the clerk ; al- 
 though the theory of the law is, that this is done by the court. Begg v. 
 Whittier, xlviii. 314. 
 
 96. But, where the damages do not depend on calculation merely, a 
 default admits only the liability of the defendant, not that the plaintiff 
 has sustained the damages by him alleged. Begg v. Whitiier, xlviii. 
 314. 
 
 97. It seems that, for special reasons, the damages may be ascertained 
 by a regular jury, if the plaintiff seasonably moves therefor ; otherwise, . 
 he will be deemed to have waived any right to a jury, and then the dam- 
 ages are to be determined by the court. Begg v. Whittier, xlviii. 314. 
 
 • Gummings v. Smith, L. 568. 
 
 98. At a hearing in damages, in open court, either by judge or jury, 
 legal testimony only is admissible. Begg v. Whittier, xlviii. 314. 
 
 99. A., by written contract, stipulated with B. to do certain things 
 during the lifetime of B. and his wife, and of the survivor of them. Af- 
 ter the decease of A-, his administratrix refused longer to perform the 
 contract. In a suit by B. against the administratrix, the presiding judge 
 directed the jury, without objection, to return the amount of damage for 
 one year, as, from the sum so found, the amount for which the verdict 
 should be, could be ascertained by computation. Accordingly the jury 
 returned a general verdict for a specified sum as damages, which was 
 amended by the full court, by inserting the amount, which was the value 
 of the annuity, as ascertained by Wiggleworth's table, for the expecta- 
 tion of life of the plaintiff's wife, who was much younger than the plain- 
 tiff. Sow V. How, XLVIII. 428. 
 
 100. After a party has consented that judgment may be rendered against 
 him, he is not sntitled to a jury trial, to fix the amount of damages. 
 flummings v. Smith, l. 568. 
 
 101. In actions upon the class of bonds in which the court is required to 
 assess the damages, the presiding judge may, without the consent of the 
 parties, appoint a master for that purpose. State v. Mclntyre, Lin. 214. 
 
 102. And alleged matters of fact, urged against the acceptance of such 
 a master's report, must be accompanied by evidence. State v. Mclntyre, 
 Liii. 214. 
 
 (k) Buhs of court. 
 
 103. By the rules of court, the defendant is entitled to a specification 
 of the matters to be proved in support of a count for money had and re- 
 ceived. Perkins v. Cushman, xxiv. 484. 
 
 104. Masters in chancery, not exceeding five in number in each county, 
 may be appointed, with the general powers appertaining to that ofiice ; 
 and when the parties in any case in equity do not otherwise agree, one of 
 such masters in chancery, may be appointed by the court to act therein. 
 
430 PRACTICE. 
 
 Such masters in chancery may be appointed for any county in the 
 State, at any term of court held in either district, by a majority of the 
 justices thereof as a court of law ; the clerk shall record such appoint- 
 ments, with the date thereof, upon the docket for the district; he shall 
 certify such appointments, if within the district of which he is clerk, to 
 the clerks of the several counties therein ; he shall certify such appoint- 
 ments, if within any other district, to the clerk thei'eofj who shall record 
 the same upon the docket thereof for the current year, and certify the 
 same to the clerk for the county in which such appointments are made; 
 and the several county clerks shall record all such appointments therein, 
 with the date thereof^ in books to be kept by them for that purpose. 
 
 The clerk of the district, in which any master in chancery shall be ap- 
 pointed as aforesaid, shall send a commission therefor, under the seal of 
 this court, to the person so appointed, xlvii. 599. 
 
 105. "When any party shall die while a suit is pending, on a sugges- 
 tion thereof being entered on the docket, which may be done by the 
 other party in vacation, it shall be the duty of the clerk, upon application 
 in writing, to issue process to bring into court the representation of such 
 deceased party, which process may be made returnable on a day certain, 
 in or out of term time, to be served at least fourteen days before such 
 return day. xlvii. 600. 
 
 106. In case of a disagreement of the members of the court in a cause 
 argued orally or otherwise, the papers in the case, with the briefs of 
 counsel, shall be submitted to the members of the court not present at 
 the term ; and the decision shall be made by all the members of the 
 court, unless the counsel, or either of them, at the term when the case is 
 entered, shall enter their dissent thereto upon the docket, xlviii. 605. 
 
 107. By the ninth rule of court and the law applicable to specifications of 
 defense, all matters set forth in the writ and declaration and not spec- 
 ially denied, are regarded as admitted for the purposes of the trial. Fox 
 V. Conway JF. Ins. Co., liii. 107. Cutler v. Currier, liv. 81. 
 
 See Rules of Cotjet, 2. 
 
 (1) Before the full court. 
 
 108. When a party is allowed to amend, on terms which are accepted 
 by him, the full court will not subsequently modify those terras, though 
 it should appear that the amendment was unnecessary. Whether the 
 full court has the power thus to interfere, qucere. /Simpson v. Norton, 
 XLV. 281. 
 
 109. This court, when sitting in the several districts to determine 
 questions of law, has no original jurisdiction, and cannot grant leave to 
 amend. Such leave can be' granted only at nisi prius. Crocker "v. Craig, 
 XL VI. 327. Thompson v. Mclntire, xlviii. 34. 
 
 110. In a libel for divorce, a motion to dismiss the exceptions, and 
 render judgment on the verdict, because the libellee has failed to comply 
 with an order of the court, passed at nisi prius, after filing the excep- 
 tions, directing him to pay the libellant to aid her in prosecuting her ex- 
 ceptions, will not be entertained by this court, sitting in banc. The prop- 
 er course, in such case, seems to be to proceed against the libellee as for 
 contempt, before the judge at nisi prius. Dwelly v. Dwelly, xlvi. 377. 
 
 111. At common law the presiding judge set aside verdicts both in 
 civil and criminal cases. State v. Hill, xlviii. 241. 
 
PEACTICE. 431 
 
 112. In civil cases, a motion to set nside a verdict as Leing against the 
 evidence, must be heard by the full court. State v. Hill, XLViii. 241. 
 Wallace v. Volumbia, xLviii. 436. 
 
 113. Aliter, in criminal cases. State v. Hill, xltiii. 241. State v. 
 Smith, Liv. 33. 
 
 114. Upon motion made in the law court, a report will be discharged 
 upon terms, for the purpose of allowing the officer of a town to amend 
 his records according to the fact, where the defects are technical, and 
 the justice of the case requires it. Allen v. Archer, xlix. 346. 
 
 115. Under what circumstances this court, sitting in banc, will refuse 
 a motion to discharge a report in order to permit a party to prove facts 
 alleged to have been discovered since the last preceding nisiprius term. 
 Potter V. Sewall, liv. 142. 
 
 See Exceptions, 1. 
 
 Practice, 
 
 (ra) Generally. 
 
 116. When the death of either party is suggested after verdict, judg- 
 ment may be entered as of the term when the verdict was rendered. 
 Lewis V. Soper, xliv. 72. 
 
 117. The.answer of a respondent to a bill in equity will be taken as 
 true, unless from a consideration of the facts and circumstances admitted 
 or [proved, the contrary clearly appears. Alford v. McNarrin, xliv. 
 90. 
 
 118. In an indictment, alleging that the respondent was a common 
 seller, &c., on the first day of July, 1858, and on divers days and times 
 between that day and the day of finding the indictment in October fol- 
 lowing, the attorney for the State may enter a nol pros, as to offenses 
 committed after the law of 1858 took effect. State v. Pillshury, xlvii. 
 449. 
 
 119. When final judgment has been entered for the defendant in an 
 action, and the parties are out of court, the judicial power of tlie court 
 ceases; as nothing remains to be done, but to tax the costs, which re- 
 quires merely the exercise of ministerial powers, costs being only inci- 
 dent to the judgment. Shepherd v. Band, xlvul 244. 
 
 120. But if, at the term, the costs are taxed, and an adjudication there- 
 on is had, either party, dissatisfied with the ruling of the court, may ex- 
 cept. Otherwise, where, on appeal from the clerk's taxation, the ques- 
 tion is adjudicated by one of the judges in vacation, or at a subsequent 
 term. Shepherd v. Rand, xLvm. 244. 
 
 121. It is not within the discretionary power of a judge at nisi prius, 
 to order the action brought forward and entered upon the docket of a 
 subsequent terra, not for the purpose of amending the record, but, in ef- 
 fect, to nullify it, so that a negligent party may have an oppoitunity to 
 except to the decision of a tribunal that he has himself selected, in the 
 taxation of costs. Shepherd v. Hand, xlviii. 244. 
 
 122. When one party to a suit testifies to alleged facts equally within 
 the knowledge of the other party, and the latter does not offer himself 
 as a witness, and no reason is given why he is not called, the jury may 
 
432 PRESCEIPTION. 
 
 take the failure to testify into consideration in determining what credit 
 they onght to give to the party who has testified, Perkins v. Ilitchr 
 cock, xLix. 468. 
 
 123. When a witness is ofiered as an expert, it is for the presiding 
 judge to determine, from the testimony adduced respecting him, wheth- 
 er or not he is entitled to be so considered. Berry v. Reed, liii. 487. 
 
 124. The court will not, on motion of the plaintiff, order the defend- 
 ant to produce a deposition taken by the latter and used in a former trial 
 of the same case, unless upon evidence that the deposition has been filed 
 by the clerk. Webster v. Calden, lv. 165. 
 
 125. On the trial of an indictment for. burglary, the presiding judge 
 may, in his discretion, appoint a counsellor of the court to assist the at- 
 torney for the State ; and the fact that such person may expect compen- 
 sation for services thus rendered will not deprive the court of the power 
 to appoint him. State v. Jiartlett, lt. 200. 
 
 126. The presiding judge cannot be required to rule upon the force 
 and effect of testimony upon the position as it is produced ; and neither 
 is he under any obligation to make known his views of the relative con- 
 dition of parties as to the burden of proof at every stage of the trial. 
 Sovey v. Sobson, lv. 256. 
 
 127. In a case presented upon a statement of facts, without any stipu- 
 lation that the decision should be influenced by the pleadings, the de- 
 fendant is entitled to judgment when the facts will verify any plea which 
 is a bar to the action. Machias Hotel Co., v. Fisher, lvi. 321. 
 
 128. After verdict, no defects in the declaration can be taken advan- 
 tage of by motion in arrest. Barrett v. Black, lvi. 498. 
 
 129. When a defendant, in his specifications of defense, denies "the 
 purchasing or having any of the articles mentioned in the plaintiff's ac- 
 count annexed," but makes do mention of their value, he may show 
 their value. Chadhourne v. Hanscom, lvi. 554. 
 
 See Bankeuptct, 5, 6. 
 Costs, 11,-22, 47, 56. 
 Pleading, 34, 35. 
 
 PRESCRIPTION. 
 
 1. A party acquires a right to the use of water in a particular man- 
 ner by an uninterrupted, adverse enjoyment of such use over twenty 
 years ; but an omission by the owner to make use of his right, does not 
 impair his title or confer any right thereto upon another. Pillsbury v. 
 Moore, xliv. 154. 
 
 2. It is not the non, user by the owner, but the adverse enjoyment by 
 another, which destroys his right. Pillsbury v. Moore, xliv. 154. 
 
 3. In the trial of a complaint for flowage, to establish a prescriptive 
 right of the mill-owner to flow, it must appear that he and his grantors 
 
PEESCEIPTION. 433 
 
 have been accustomed to flow the land, without interruption, for twenty 
 years or more, prior to the date of the complaint, thereby causing, dur- 
 ing that period, actual damage. Qleason v. Tuttle, xlvi. 288. 
 
 4. A voluntary omission to flow in such manner as to occasion annual 
 damage, when such omission is accompanied by no acts indicative of an 
 intention to resume the right, ■^ill aflTord no evidence of a continued ad- 
 verse claim to exercise such right. Gleason v. Tuttle, xlvi. 288. 
 
 5. As a road may be established by user, the rights of the public will 
 be according to the user. Thus, where a road had been encumbered for 
 forty years with movable bars or gates, the right to use the road still 
 existed, subject to such limitation. Minks v. IlinJcs, xlvi. 423. 
 
 6. The right to take sea-weed may be conveyed by the owner of an 
 estate, without conveying the soil, even of the flats, or it may be ac- 
 quired by prescription. Sill v. Lord, xlviii. 83. 
 
 7. But, if a corporation claim a prescriptive right, it must be shown 
 by corporate acts, regulating the right or exercising control over it. Acts 
 of the corporation, declaring the premises forever common for the use of 
 the inhabitants, or surveying a lot to one who did not subsequently go 
 into possession of it, or laying out a road to the premises, are not such 
 acts as would prove a prescriptive right. Hill v. Lord, xlviii. 83. 
 
 8. The inhabitants of a town cannot acquire, by prescription, a right 
 to take sea-weed, for there could arise no presumption of a grant, as an 
 inhabitant cannot purchase for himself and his successors. Sill v. Lord, 
 xlviii. 83. 
 
 9. Where a tanner has thrown his ground bark into a stream for more 
 than twenty years, he does not thereby acquire a right by prescription 
 to do so, to the injury of the owner of the land on the stream below, on 
 which the natural action of the water deposits the bark, unless it ap- 
 pears that the bark has been deposited on the same land, and the owner 
 thereof annually injured thereby, for the whole term of twenty years. 
 Crosby v. Bessey, xlix. 539. 
 
 10. Although the tanner and those under whom he claims have thrown 
 their ground bark into the stream for more than twenty years, yet if the 
 owner of the land below has not been thereby annually damaged until 
 within the last six years, this is not sufficient to establish a right by pre- 
 scription ; and the owner of the land may maintain an action for dam- 
 ages. Crosby v. Bessey, xlix. 539. 
 
 11. Although the land below has only been injured by the deposit of 
 bark, since the removal of the dam above and the formation of one be- 
 low, without the agency of either of the parties, yet, it seems, the tan- 
 ner is responsible for the damages to the land occasioned by the deposit 
 after the changes took place. Crosby v. Bessey, xlix. 639. 
 
 12. A. conveyed to B. a portion of a lot of land of a certain width, 
 and extending so far in length " as will make precisely twenty acres ; " 
 and immediately afterwards A. and B., by mutual agreement and survey, 
 marked the lines and corners of the granted premises by spotted trees 
 and stakes. The next year, A. conveyed to C. the remainder of the lot, 
 more or less, bounding it on the east " by the west line of B.'s land." 
 B. and C. occupied their several parcels according to the line marked by ■ 
 A. and B., for twenty-five years. In the mean time, B., by the decision 
 of a lawsuit between him and a third party, had his lot widened on one 
 
 28 
 
434 PEESCEIPTION. 
 
 side four rods, and in consequence relinquished two rods on the other 
 side. C, without any suit, conformed his lines to B.'s new ones. But 
 the division line between B. and C, and their occupation of their respect- 
 ive parcels, continued as before. In an action by C.'s grantee to recover 
 of B.'s grantee all of the original lot except twehty acres, Held, that 
 after aji acquiescence by all the parties in a line so established, for a length 
 of time sufficient to give a title .by disseisin, it will not be disturbed, 
 although the occupation has not been such as, aside from the marking 
 of the line, would amount to a continuous disseisin for the whole time. 
 Faught v. Holway, l. 24. 
 
 See Mills, 13. 
 
 Wat, 11, 12, 13, 14. 
 
 PRESUMPTION. 
 See Etidenob, 92-94, 97-103-105-109. 
 
 PRINCIPAL. 
 See Bills, &c., 157. Agenct. 
 
 PRIVITY. 
 See Bond, 13. CovENAiq-T, 1. Trustee Pbocess, 23. 
 
 PROBABLE CAUSE. 
 See Malicious Peosecutioit, 1-4, 6, 10. 
 
 PROBATE ACCOUNT. 
 See Peobate CoueTj 16, 17, 18, 19, 42. 
 
PROBATE BOND. PEOBATE COUKT. 435 
 
 APPEAL FROM DECISION OF JUDGE OF PROBATE. 
 
 See Practice, 39, 40, 41, 42. Probate Court, 1, 2, 3, 4, 5, 6, 11, 17, 
 18, 19, 24, 25, 27, 32, 33, 34, 35, 36, 38, 39, 40, 42, 43, 44. 
 
 « 
 
 PROBATE BOND. 
 
 The surviving partner having been duly appointed executor of the will 
 of his deceased partner, and given bond as executor in common form, in- 
 cluded in his inventory " the whole of the partnership " property, with 
 the proper value carried out, and charged himself, in his executor's ac- 
 counts, with "one-half amount of personal estate of" the firm, "except 
 notes and accounts, at the value mentioned in the inventory," and with 
 "one-half collected on notes and accounts of the firm," together with 
 " one-half of rents collected on the real estate of the firm," all of which, 
 the judge of probate allowed, against the objections of tbe executor's 
 sureties, and thereupon found a balance due from the executor to the es- 
 tate. In an action against the sureties upon the executor's bond, to re- 
 cover the balance thus found. Held, that the sureties were liable under 
 R. S. of 1841, 0. 107, although the executor filed no bond as surviving 
 partner. Knoialton v. Chick, lvi. 228. 
 
 PROBATE COURT. 
 
 1. The court of probate has jurisdiction of the assignment of dower 
 and sale of the reversion, and where no question is made concerning the 
 regularity of the proceeding, and no appeal taken, the decree of that 
 court is final. Bent v. Weeks, xliv. 45. Barton v. Hinds, xlvi. 121. 
 
 2. On appeal from a decree of the court of probate, the whole pro- 
 ceedings are again examinable in the appellate court, so far as they are 
 opened by any of the causes assigned, and new testimony may be had 
 upon these issues. Moody v. Hutchinson, xliv. 57. Qilman v. Gilman, 
 Lui. 184, 
 
 3. "When, from the papers presented, a subject-matter apparently falls 
 within the jurisdiction of the probate court, and due proceedings have 
 been had therein, without appeal or objection, the final decree of that 
 court will be conclusive. Simpson v. Norton, xlv. 281. 
 
 4. Upon an appeal from the probate court, three distinct issues of fact 
 were submitted to the jury under the direction of the court : (1) The 
 signing of the alleged will by the supposed testatrix ; (2) The sanity of 
 the supposed testatrix ; and (3) The attestation of the alleged will. Upon 
 these issues, the jury returned one verdict only, "that the instrument is 
 
436 PKOBATE COURT. 
 
 not the last will and testament of" the supposed testatrix. Held, that the 
 verdict did not find the issues presented, and, being defective and un- 
 certain, was void. Withee v. Howe, xlv. 571. 
 
 5. Issues of fact in probate are to be tried, and the verdict rendered, 
 recorded, and affirmed, with the same precision and strictness, and ac- 
 cording to the same rules as in proceedings at common law. Until a 
 verdict is declared and affirmed by%ll the jury, in open court, and con- 
 structively recorded, it is of no force. And this rule applies as well to 
 S25ecial as to general verdicts. Withee v. Rowe, xlv. 571. 
 
 6. By R. S. of 1841, c. 95, § 3 (R. S., c. 103, § 3), the judge of probate 
 may assign to' a widow her dower in all the lands of which her husband 
 died seized, unless her right thereto is disputed by heirs or devisees, or 
 by persons claiming under them. And as no other persons are bound by 
 the decree, so they have no right of appeal from it. Barton v. Hinds, 
 XLVI. 121. 
 
 7. The assignee of one of the heirs of a deceased person is not en- 
 titled to a decree that the distributive share of the assignor shall be paid 
 to him by the administrator; otherwise, a judge of probate would ex- 
 ercise common law jurisdiQtion in matters between contesting parties, 
 not relating to acts of the intestate, but to contracts of the heirs after 
 his decease. Knowlton v. Johnson, xlvi. 489. 
 
 8. R. S., c. 64, §§ 55 and 57, and c. 113 of the Public Laws of. 1859,. 
 confer on a judge of probate plenary power to punish, as for a contempt, 
 a person duly before him, who refuses to answer any lawful interrogato- 
 ry. Bradley v. Veazie, xlvii. 85. 
 
 9. Whether such interrogatory be lawful or otherwise, or whether a 
 commitment be justifiable or not, can be determined only by the S. J. 
 court on a writ of habeas corpus. Bradley v. Veazie, xlvii. 85. 
 
 10. If questions are improperly asked, they must be answered as the 
 judge of probate, in his discretion, may order ; such answers subject, 
 however, to be excluded when offered as evidence in any legal proceed- 
 ing. Bradley v. Veazie, xlvii. 85. 
 
 11. From an order of the judge, requiring any such question to be 
 answered, an appeal will not lie. Bradley v. Veazie, XLvn. 85. 
 
 12. Where, in the return of commissioners to the probate court, of 
 their division of real estate, among the heirs of a deceased person, and 
 also, in the decree of the judge of probate accepting the same, there is 
 a want of technical accuracy, — if all the heirs bad signified in writing 
 their approval of the assignment, and the heir to whom the whole estate 
 was assigned went into possession thereof, and paid a part of the sum 
 which the commissioners adjudged to be the proportionate value of the 
 share of the others, and they made no claim to the estate for many 
 years, they will, afterwards, be precluded from contesting the correctness 
 of the proceedings in making the division. Bobbins v. Gleason, xlvii. 
 259. 
 
 13. The records of pfobate courts must show their jurisdiction, or 
 their proceedings will be void. Fairfield v. Oullifer, xlix. 360. 
 
 14. To place a citizen under guardianship, the records must show, by 
 distinct allegation, and not by implication or inference, that he falls with- 
 in one of the classes named in the statute, for whom a guardian may be 
 appointed. Fairfield v. Gulli/er, xlix. 360. 
 
PROBATE COURT. 437 ' 
 
 15. The judge of probate has no authority to appoint a guardian for 
 a citizen who is alleged to be " not capable of taking care of himself and 
 property, being now in his dotage." Fairfield v. Gullifer, xlix. 360. 
 
 16. On the final settlement of an account in the probate court, former 
 settlements may be opened for the purpose of rectifying mistakes. Co- 
 hum V. Loomis, XLIX. 406. 
 
 17. Where a mistake is made in the settlement of such an account, 
 the course is to apply by petition to the judge of probate for its correc- 
 tion, or to state the amount claimed in a new account; unless, when the 
 mistake is discovered, the party has a right of appeal to the supreme 
 court. Coburn v. Zioomis, xlix. 406. Arnold v. Mower, xlix. 561. 
 
 18. But where an alleged mistake has been discovered, and the party 
 has petitioned the judge of probate for its correction, and, upon g, hear- 
 ing, the judge has decided that no mistake has been made, and no ap- 
 peal is taken from his decree, the party is concluded thereby, and cannot 
 again try the question. Coburn v. Loomis, xlix. 406. 
 
 19. When the account of an executor has been allowed by the judge 
 of probate, and no appeal is taken, it cannot be revised in the supreme 
 court of probate. Arnold v. Mower, xlix. 561. 
 
 20. The bond given by an administrator, for the sale of real estate for 
 his intestate, must be approved in writing by the judge of probate. 
 Austin V. Austin, l. 74. 
 
 21. But where the evidence fails to show, affirmatively, that the bond 
 was thus approved, and the contrary does not appear, — if the case dis- 
 closes, that all the other necessary steps were taken with strictness and 
 accuracy ; that the sale was public ; that the purchaser entered immedi- 
 ately and has held the premises for more than twenty years; that the 
 law required such approval before the bond could be filed, and that the 
 bond was actually filed, — the law fully authorizes the conclusion, that all 
 was done, which was required, to give the purchaser a perfect title. Aus- 
 tin V. Austin, L. 74. 
 
 22. Where a judge of probate, under the statute authorizing a speci- 
 fic distribution of personal property in certain cases, has issued a war- 
 rant for an appraisal of a part of a vessel belonging to an estate, and 
 ordered a distribution thereof amongst the heirs in specified proportions, 
 and this has been done accordingly, and a return made, accepted, and re- 
 corded, the title passed thereby ; and the probate records are sufficient 
 muniments of title, without any formal transfer of the several parts dis- 
 tributed. Rose V. O'Brien, l. 188. 
 
 23. A decree of the judge ordering distribution and payment of the 
 balance in the hands of the administrator on the settlement of his last 
 preceding account, passed on the same day the return of the specific dis- 
 tribution was accepted, does not annul the latter, nor require that the 
 share of the estate in the vessel should be sold and distributed in money. 
 Rose V. O'Brien, l. 188. 
 
 24. An appeal from a decree of a probate court, like any other ap- 
 peal, suspends or vacates the judgment or decree appealed from. Tar- 
 box V. Fisher, l. 236. Oilman v. Gilman, liii. 184. 
 
 25. On an appeal from the decree of a judge of probate, made on a 
 petition under R. S. c. 71, § 17, to empower an administrator to execute 
 a deed to carry into eflect a legal contract made by the deceased, Held, 
 
438 PROBATE COUKT. 
 
 that an heir at law of the deceased was a party entitled to the right of 
 appeal. Bates v. Sargent, li. 423. 
 
 26. To justify a decree licensing an administrator to make sale of any 
 real estate belonging to his intestate's estate (except such as is held in 
 mortgnge or taken in execution by the administrator for a debt due the 
 estate), it must be made to appear that such sale is necessary to pay 
 debts, legacies, or expenses of sale and administration, or that a sale of 
 some portion thereof is necessary for these purposes, and that, by a par- 
 tial sale, the residue would be greatly depreciated. Gross v. Howard, 
 Lii. 192. 
 
 27. If land has been sold under a license which was illegally obtained, 
 and an appeal has been taken from the decree granting such license, the 
 fact of sale will not affect the decision of the supreme court of probate. 
 Gross V. Howard, lii. 192. 
 
 28. The decree of the judge of probate, appealed from, cannot be used 
 as evidence of the facts therein contained, at the hearing on the appeal 
 in the supreme court of probate. Gross v. Howard, lii. 192. 
 
 29. By R. S., of 1857, c. 71, § 30, if the validity of a sale of real estate 
 by license from a probate court is contested by one claiming adversely 
 to the title of the wife, ward, or deceased, or by a title not derived 
 through either, the sale shall not be held void on account of any irregu- 
 larity in the proceedings, if it appears that the license was granted by a 
 court of competent jurisdiction, and the deed was duly executed and re- 
 corded. Webster v. Golden, liii. 203. 
 
 30. The mere fact that lands sold for a very small sum compared with 
 the intrinsic value, is not conclusive evidence of fraud. Webster v. Gol- 
 den, LIII. 203. 
 
 31. R. S. of 1857, c. 67, do not limit the probate court, in its selection 
 of guaixlians, to persons resident in this State. Berry v. Johnson, lhi. 
 401. 
 
 32. By R. S., of 1857, c. 63, § 19, any person aggi-ieved by any order 
 sentence, decree, or denial of judges of probate, may appeal therefrom. 
 yeazie Bank v. Young, liii. 555. 
 
 33. A party is aggrieved by such decree only when it operates on his 
 property or bears upon his interest directly. Yeazie Bank v. Young, 
 tin. 555. 
 
 34. A mere garnishee of a debtor to the estate of a deceased person, 
 has no such interest in the appointment of an administrator upon such 
 estate as enables him to appeal from the decree of the judge of probate 
 making such an appointment. Yeazie Bank v. Young, liii. 555. 
 
 35. When an appeal is taken from the decree of a judge of probate by- 
 one having no right of appeal, the question of jurisdiction in the court 
 below cannot be entertained in this court sitting as the supreme court 
 of probate. Vedzie Bank v. Young, liii. 555. 
 
 36. Whether or not an appeal rightfully claimed may be entertained 
 for the purpose of examining and deciding whether the court below 
 erred in taking jurisdiction, when the want of jurisdiction was not ap- 
 parent upon the face of the proceedings, qucere. Veazie Bank v. Young, 
 Lin. 555. 
 
PROHIBITION. 439 
 
 37. By R. S., of 1857, c. 63, § 24, the supreme court of probate may 
 reverse or affirm, in whole or in part, the sentence or act appealed from, 
 pass such decree thereon as the judge of probate ought to have passed, 
 remit the case to tlie probate court for further proceedings, or take any 
 order therein that law and justice require. Oilman v. Gilman, Lin. 
 184. J 4 . 
 
 38. An appeal fixing the amount of allowance to a widow, vacates the 
 judgment appealed from; and the whole subject-matter of the appeal is, 
 without any statute restriction, open to the appellee in the supreme 
 court of probate. Gilman y. Gilman, iatl. 1M. 
 
 89. Where one of the heirs of a deceased person appealed from a de- 
 cree of an allowance to the widow, for the reason that it was "excessive, 
 unreasonable, and not necessary, according to the decree and estate of 
 her husband and the state of the family under her care," Held, that the 
 supreme court of probate might increase the amount decreed below, i^ 
 in its opinion, law and justice required it. Gilm,an v. CriVman, Lni. 184. 
 
 40. An administrator cannot appeal from an order of the judge of 
 probate, authorizing an action to be brought upon his official bond. 
 Bulfinch V. Waldobord' , liv. 150. 
 
 41. Such authority may be exercised under R. S., c. 72, § 14, without 
 notice to the obligors in the bond. Bulfinch v. Waldobord', liv. 150. 
 
 42. A surety upon a guardian's bond has no right of appeal from the 
 decree of a judge of probate, allowing a guardianship account, filed by 
 the administratrix of the deceased guardian. Woodbury \. Hammond, 
 Livi 332. 
 
 43. The heirs of the intestate have no right of appeal from the decree 
 of the judge of probate accepting the report of commissioners appointed 
 under c. 112, of the Public Laws of 1859. Beed v. Foster, liv. 499. 
 
 44. An appeal from the decision of commissioners of an insolvent es- 
 tate, may be brought in the county where the administrator resides, 
 although administration was granted and all proceedings in probate were 
 held in another county. Gould v. Carlton, lv. ^11. 
 
 46. One, who by a will is to have a life-estate in land, upon certain 
 contingencies and conditions therein named, may appeal from the de- 
 cpe of the judge of probate allowing the account of the executor of the 
 will. Paine v. Goodwin, lvi. 411. 
 
 See GuAEDiAN', &c., 11. 
 
 Insolvent Estates, 5. 
 
 PROHIBITION. 
 
 _ 1. By R. S. of 1857, c. 77, § 6, the S. J. Court may issue writs of pro- 
 hibition. Harriman v. Go. Gonirs, liii. 83. 
 
440 PEOPEIETOES OF LAND AND INHABITANTS OF TOWNS. 
 
 2. Where county commissioners refuse to carry into effect a judgment 
 ©fthe supreme judicial court, rendered upon the report of a committee 
 appointed in case of appeal from their decision, refusing to lay out and es- 
 tablish a highway, but proceed to appoint an agent to open the way laid 
 out by them on the original petition, contrary to the judgment of this 
 court, a writ of prohibition will be issued by this court enjoining such 
 proceedings. Sarriman v. Co. CorrCrs, liii. 83. 
 
 PROPRIETORS OF LAND AND INHABITANTS OF TOWNS. 
 
 1. Proprietors of common lands (such as the proprietors of Kennebec 
 purchase) may alienate their lands by vote. Kidder v. Ulaisdell, xlt, 
 461. Cary v. Whitney, xlviii. 516. 
 
 2. Such power is anomalous, and limited to the single case of proprie- 
 tors of common land, and as to them rests entirely upon statute grant. 
 Cary v. Whitney, xlviii. 516. 
 
 3. A book purporting to be proprietary records, in the handwriting of 
 the clerk, found among his papers after his decease, and remaining ever 
 since in the hands of his executor, is sufficiently proved to justify its ad- 
 mission as evidence, especially when there is no proof that there was ever 
 any other records or clerk. Brackett v. Persons Unknown, liii. 228. 
 
 4. The neglect of such clerk to deposit the records with the town clerk, 
 after the proprietary ceases to exist, as required by the statute of 1821, 
 c. 4, § 3, does not affect the validity of the previous proceedings of the 
 proprietary. Brackett v. Persons Unknown, liii. 228. 
 
 5. When such records have not been so deposited, the original are ad- 
 missible in evidence without any pertificate of the town clerk to authen- 
 ticate it. Brackett v. Persons Unknown, liii. 228. 
 
 6. When certain persons assume under that statute to act as a proprie- 
 tary, describe themselves as such, and keep a record, the legal presump- 
 tion, after the lapse of thirty years and more, is that they were proprietors ; 
 and the admission of evidence, outside of the record, that they were so 
 in fact, affords no legal ground of complaint. Brackett v. Persons Un- 
 known, LIII. 228. * 
 
 7. The fair construction of a return, that notice had been given "by 
 posting a copy in two public places in," &c., and by inserting the same 
 in, &c., "more than fourteen days previous" to the time of meeting, " as 
 the law directs," is, that the " posting " and " inserting " were both four- 
 teen days before the time of meeting. Brackett v. Persons Unknown, 
 Lm. 228. 
 
 8. When the record states, " it was voted," &c., it will be presumed, 
 especially after the lapse of forty years, that the voting was done in the 
 manner provided by law. Brackett v. Persons Unknown, liii. 228. 
 
 9. Although the doings of some meetings of a proprietary are invalid 
 because they are not legally called, the validity of prior or subsequent 
 meetings is not thereby affected. Brackett v. Persons Unknown, liii. 
 228. 
 
PTJBUC LAW. 
 
 441 
 
 10. The proceedings of such proprietary, at meetings not legally called, 
 may be given in evidence to show the origin of the possession of land by 
 parties claiming by disseisin and adverse occupation, and to give color of 
 title thereto. Brackett v. Peisons Unknown, liii. 228. 
 
 11» For the same purpose, a deed, executed by one as the attorney of 
 another, may be given in evidence, without proving the attorney's au- 
 thority. Brackett v. Persons Unknown, liii. 228. 
 
 See Execution, 2, 3, 4. 
 
 PROSTITUTION. 
 
 See Indictment, 50. 
 
 PROVOST MARSHAL. 
 
 See Desebtek, 4. 
 
 PUBLIC LAW. 
 
 When a public law has, in accordance with its provisions, been legally 
 adopted by a city council, such an adoption of a subsequent act amend- 
 atory of the former, is not essential, unless its provisions expressly re- 
 quire it. Swett V. Spragae, lv. 190. 
 
 PUBLIC LOTS. 
 
 See Land Agent, &c. 
 
 PUIS DARREIN CONTINUANCE. 
 
 See Pleading, 35, 38, 39. 
 
442 QUARANTINE. KAILROAD. 
 
 QUAKANTINE. 
 
 1. "Where a vessel is subject to quarantine regulations, the officers of 
 the town are not authorized to appropriate any part thereof for a hospital, 
 or to exclude the owner from the possession or control of any part of the 
 vessel. Mitchell v. Rockland, xlv. 496. 
 
 2. The legislature intended to subject vessels to quarantine regulations 
 only, not to require their seizure and conversion into hospitals. Mitchell 
 V. liockland, xlv. 496. 
 
 KAILROAD. 
 
 1. No action can be maintained against a railroad corporation for inju- 
 ries by acts done in conformity to law, unless the corporation have in 
 some way forfeited their chartered rights or the chartered remedy has 
 been rightfully modified by sorrie statute, so as to authorize such suit. 
 Oowen V. Penobscot M. B. Co., xliv. 140. 
 
 2. By § 11 of their charter, the Atlantic & St. Lawrence Railroad Com- 
 pany are obliged to erect and maintain substantial, legal, and sufficient 
 fences on each side of the land taken by them for their railroad, when 
 the same passes through inclosed and improved lands ; and in default of 
 which they are liable for injuries occasioned thereby. 'Whitney v. At. & 
 St. L. B. B. Co., XLIV. 362. 
 
 3. By the lease and assignment of the Atlantic & St. Lawrence Rail- 
 road, that company have not relieved themselves from any liability for 
 losses or injuries to which they were subjected by their charter and the 
 laws of the State. Whitney v. At.. & St. L. B. B. Co., xliv. 362. 
 
 4. If the charter of a railroad company does not fix the number of 
 shares of the capital stock, it is to be presumed that the legislature in- 
 tended that the stockholders or the directors should fix the number. 
 And it is indispensable that the number be so determined before any 
 assessment can be made thereon. Som. (fe Ken. B. B. Co. v. Cushing, 
 XLV. 524. Som. & Ken. B. B. Co. v. Weston, xlv. 524. 
 
 5. If the number of shares so fixed exceeds the number actually sub- 
 scribed for and taken, the stockholders or directors may change the num- 
 ber ; but the assessment must be upon the whole number. If the shares 
 are not all taken, an assessment upon the number that have been taken 
 is illegal and void. Som. & Ken. B. B. Co. v. Cushing, xlv. 524. 
 
 6. A subscriber who has paid the first assessment is not thereby es- 
 topped from setting up this defense to a suit for the second. Som. '& 
 Ken. B. B. Co. v. Weston, xlv. 524. 
 
 7. The statute of 1853, c. 41, § 3 (R. S., c. 51, § 15), relating to the 
 construction of railroads across highways and streets, is remedial in its 
 provisions, applies to railroads previously, as well as those subsequently 
 ehartered, unless they had, at the time of the passage of the act, com- 
 
EAILKOAD. 
 
 443 
 
 pleted or actually entered upon the construction of their road. Veazie v. 
 , Mayo, XLV. 560.- 
 
 8. That act was designed to afford greater security to the public hav- 
 ing occasion to use highways and streets across which railroads were to 
 be made ; and it was but the exercise of that police power which is al- 
 ways necessarily retained by the people, in their sovereign capacity, for 
 the public safety, and of which they cannot be devested by prior legisla- 
 tive enactments, nor by chartered immunities. Veazie v. Mayo, xlt. 
 560. 
 
 9. Before the construction of a railroad across any street of a city 
 the written assent of the mayor and aldermen must be obtained, stating 
 the manner and conditions upon which such crossing may be made; and 
 this must be recorded in the county commissioners' office. But the pro- 
 vision requiring it to be recorded is merely directory, and not a condi- 
 tion precedent. Veazie v. Mayo, xlv. 560. 
 
 10. The city council of Bangor is a body entirely distinct and differ- 
 ent from the mayor and aldermen ; and the assent of the former to the 
 construction of a railroad across a street in that city, was nugatory and 
 conferred no authority for that purpose. Veazie v. Mayo, xlv. 560. 
 
 11. In a proceeding under the statute of 1854, o. 93, relating to con- 
 necting railroads, the actual possession of the railroad by the petitioners, 
 under claim of title, with no evidence of adverse claim, is sufficient evi- 
 dence of their title and of the organization of the company, to entitle 
 them to the relief which the statute was designed to afford. Portl. & 
 Oxford Cen. B. R. Co. v. Grand T. Railway Co., xlvi. 69. 
 
 12. Such a proceeding is not analogous to a suit at common law ; and 
 where a railroad company had leased its road to another company, the 
 lessors and lessees may be joined as respondents; and, if the petitioners 
 are entitled to relief against either, commissioners may be appointed, 
 and the court will afterwards determine against which the' award should 
 be finally made; or whether against both. Forth & Oxford Cen. R.R. 
 Co. V. Grand T. Railway Co., xlvi. 69. 
 
 13. The sale of the Buckfield Branch Railroad to the Cumberland and 
 Oxford Central Railroad Company, authorized by a special stat\ite of 
 1857, invested the latter company with all the rights and immunities of 
 the former, including the rigiit of connection with the Atlantic & Saint 
 Lawrence Railroad. And the right to connect is not lost to the compa- 
 ny purchasing, in consequence of its being empowered by its charter to 
 make a road across the Atlantic & St. Lawrence Railroad. But when 
 the road shall be actually made across and operated, the right of con- 
 nection will no longer exist. Fortl. & Oxford Cen. R. R. Co. v. Grand 
 T. Railway Co., xlvi. 69. 
 
 14. A statute authorizing the court, by commissioners appointed there- 
 for, to determine judicially what are the mutual rights and obligations 
 of any two railroad companies, authorized by their charters to connect 
 their roads, is clearly within the just limits of legislative power. And 
 as the statute of 1854 was not intended to go beyond this, it is remedial 
 only, and binding upon existing corporations. Portl. & Oxford Cen. 
 R. R. Co. V. Grand T. Railway Co., xlvi. 69. 
 
 15. The defendant corporation will not be released from the liability 
 imposed by this statute, by reason of having leased their road to the 
 
444 KAILKOAD. 
 
 Grand Trunk Railway Company, who were in possession, controlling and 
 managing the leased road, at the time of the injury, and notwithstand- 
 ing the fire was communicated by a locomotive engine, which the lessees 
 had themselves furnished. Stearns v. At. & St. £. B. R. Co., xlvi. 95, 
 
 16. Where a railroad company commenced the running of cars upon 
 their roarl, before they had erected their legal fences, and the plaintiff's 
 horse, rightfully on land adjoining, had strayed therefrom upon the track 
 and was killed by the company's engine, — the company will not be ex- 
 onerated from liability for damages, by proof that, at the time, certain 
 persons were operating the road, under an agreement with the company 
 that they should receive and retain the eai'nings, when it was further 
 stipulated in the agreement that "the trains shall run under the direc- 
 tion of the company, and be under their control." Wyman v. Penobscot 
 & Ken. R. R. Co., xlvi. 162. 
 
 17. A railroad corporation may lay side-tracks for its convenience over 
 any land it may own in fee, or land of individuals giving legal consent 
 thereto, if no public interest or private right is affected. Bangor, 0. &>. 
 M. R. R. Co. V. Smith, xlvii. 34. 
 
 18. An act general in its terms, and applicable to all railroads, is with- 
 in the meaning of c. 503 of the Public Laws of 1831, empowering the 
 legislature to modify the charters of corporations ; and affects the char- 
 ter of any railroad company which contains no express limitation to the 
 contrary. Bangor, 0. & M. R. R. Co. v. Smith, xlvii. 34. 
 
 19. Chapter 41, of the Public Laws of 1853, prescribing generally how 
 railroad corporations shall proceed in the location of tracks, is applicable 
 to a company incorporated in 1838. although its provisions in that respect 
 are dissimilar to those in the act of incorporation. Bangor, 0. «Sb M. 
 R, R. Co. V. Smith, xlvii. 84. 
 
 20. By locating their track across a highway, a railroad company ac- 
 quires the right to lay their rails and road-bed across said highway, in the 
 direction or line of their road; and, it may be, to lay a second track in 
 the same direction and parallel with the first, if the whole line is of that 
 character, and the business of the road requires it; but not to lay a track 
 in a different direction, on an angle or curve, though within the limits of 
 their described location. Bangor, 0. <& M. R. R. Co. v. Smith, xlvh. 
 34. 
 
 21. Under § 3, c. 41, of the Public Laws of 1853, providing that rail- 
 roads shall not be carried along any existing highway, but "must cross 
 it in the line of the railway," a corporation cannot extend a curve in a 
 branch track partly over or along a highway, but without crossing it. 
 Bangor, O. S M. R. R. Co. v. Smith, xlvii. 34. 
 
 22. The legislature, in granting the charter of the Penobscot and Ken- 
 nebec Railroad Company, adjudged that the railroad was required by 
 public necessity and convenience ; and this decision is conclusive. State 
 V. JVbyes, xlvii. 189. 
 
 23. This charter conferred upon the directors the right to exercise cer- 
 tain powers, without interference by the legislature, unless the company 
 should, in some way, abuse the privileges granted ; and, whether there 
 has been an abuse of the privileges, is a question to be decided by the 
 court, and not by the legislature. State v. Noyes, XLvn. 189. 
 
EAILROAI). 445 
 
 24. The charter is a private contract between the government, acting 
 in its sovereign capacity, and the corporation, binding on both, and can- 
 not be changed or impaired by the legislature. State v. Noyes, xltii. 
 189. 
 
 25. It is to be construed exclusively by the courts, upon the same 
 principles which are applied to contracts between privatfe individuals. 
 State V. JSfoyes, xlvii. 189. 
 
 26. The privileges thus granted may be taken for public use in the 
 same manner as the property of individuals, but the intention of the leg- 
 islature to do so must clearly appear, and provision must be made for com- 
 pensation to the owners of the property taken. State v. Noyes, xlvii. 189. 
 
 27. If the legislature charter a railroad betweeu certain termini^ and 
 it is constructed and put in operation, another railroad may be chartered 
 between the same termini, unless, in the former charter, there is a limi- 
 tation of the power of the legislature to do so. State v. ISfoyes, xlvii. 
 189. 
 
 28. The charter of the Penobscot & Kennebec Railroad Company 
 vests in the directors the power to prescribe the times and places at which 
 it will receive persons and property for transportation. State v. N'oyes, 
 XLvn. 189. 
 
 29. The act of March 26, 1868, is an interference with this right, and 
 some power of the legislature, other than that reserved in the charter, 
 must be found to justify it ; duties and obligations, additional to those 
 required by the charter, being thereby imposed upon the company. State 
 V. JVbyes, xl-vii. 189. 
 
 30. The Penobscot & Kennebec, and Somerset & Kennebec Railroads, 
 being crossing and not connecting roads, their relative position imposes 
 upon them no duties, in respect to receiving persons and property for 
 transportation, that do not fall upon railroads situated in the vicinity of 
 each other without crossing. State v. ISfoyes, xlvii. 189. 
 
 31. Private corporations, without any express reservations of the pow- 
 ers over them, in their charter, by the legislature, are subject, like indi- 
 viduals, to be restrained, limited, and controlled in the exercise of powers 
 granted, by such laws as the legislature may pass, based upon the prin- 
 ciple of safety to the public. State v. JVbyes, xlvii. 189. 
 
 32. Police regulations, established by the legislature for the conven- 
 ience of the public, or travelers on railroads, cannot be upheld against 
 individuals or private corporations. State v. JVbyes, xlvii. 189. 
 
 83. The provisions of §§ 5 and 6 of the act of March 26, 1858, being 
 in violation of the rights secured to the Penobscot & Kennebec Railroad 
 Company, in their charter, are not binding on that corporation. State 
 v. JVoyes, xlvii. 189. 
 
 34. R. S. of 1841, c. 81, § 5, provides that, in locating railroads, "no cor- 
 poration shall take any meeting-house, dwelling-house, or public or private 
 burying-ground, without the consent of the owners thereof." Held, that 
 the term " dwelling-house," as here used, means only the house, and in- 
 cludes no part of the garden, orchard, or curtilage. Wells v. Som. <& 
 Ken. R. R. Co., xltii. 345. 
 
 35. A railroad corporation, so soon as their track has been located, 
 may take immediate possession, Davis v. Russell, XLvn. 443. 
 
446 KAILROAD. 
 
 36. The charter of a railroad company authorized it to sell the shares 
 of delinquent subscribers, and made the subscriber liable for the differ- 
 ence bet\Veen the proceeds of the sile ami the amount due from him. 
 The charter and by-laws required that the subscriber should be notified 
 of the assessments thirty days before the order of the directors to sell 
 the shares, tYt'at the sale should be by public auction, at the post-office 
 named, and that the treasurer should give the subscriber a notice in 
 hand signed by the treasurer, or by a director in his behalf. Jleld, (1) 
 That a notice of the assessment thirty days before the sale is not suf- 
 ficient; (2) That a sale otherwise than by public auction, or at any 
 other place than the post-office named, is invalid; and (3) That a no- 
 tice of the sale given to the subscriber in hand, not signed by the treas- 
 urer or director, is insufficient. Lewey's I. R. R. Co. v. Bolton, XLVin. 
 451. 
 
 37. When the charter of a railroad company authorizes the sale of 
 the stock of a shareholder to pay unpaid assessments thereon, such sale 
 is not valid if it is not for a legal assessment, or if it includes any illegal 
 assessment. Lewey's I. R. R. Co. v. Bolton, XLVin. 451. 
 
 38. If such charter provides that no assessments shall be laid upon 
 any share to a greater amount than $100, in the whole, any assessment 
 beyond that sum is void. Lewey''s I. R. R. Co. v. Bolton, xltiii. 451. 
 
 39. If the charter fixes a sum as the minimum for the capital stock, no 
 legal assessment can be made until that amount of stock is subscribed in 
 good faith, by men apparently able to pay, and for shares to bear their 
 equal part with others. JLewey^I. R. R. Co. v. Bolton, xlviii. 451. 
 
 40. A subscription for " preferred stock," which is to draw ten per 
 cent interest at once, cannot be reckoned to make up the amount of cap- 
 ital stock required by the charter. Lewey^ I. R. R. Co. v. Bolton, 
 XLVIII. 451. 
 
 41. The Penobscot Railroad Company, under their charter and the 
 general laws of the State, had a I'ight to construct their railroad over or 
 under a highway, and, for that purpose, to raise or lower the highway. 
 Veazie v. JPenobscot JR. R. Co:, xlix. 119. 
 
 42. But they were bound to exercise this right in such a manner as 
 not to obstruct the highway unnecessarily, and to use reasonable care to 
 protect those passing thereon from injury. Veazie v. Penobscot R. R. 
 
 Co., XLIX. 119. 
 
 43. The company are liable for any injuries happening to any one 
 passing on the highway, on account of their neglect to use such care. 
 
 Veazie v. Penobscot R. R. Co., xlix. 119. 
 
 44. Nor are the company exempt from this liability, although the 
 change in the grade of the highway is made by contractors, grading the 
 railroad under an agreement to do the work "according to the plans and 
 directions of the chief engineer of the company," who is employed and 
 paid by the company. Veazie v. Penobscot R. R. Co., xlix. 119. 
 
 45. But a railroad company cannot, by any stipulations with contrac- 
 tors, relieve themselves from their obligation to protect the public from 
 danger, when they interfere with, or obstruct a public highway. Veazie 
 V. Penobscot R. R. Co., xlix. 119. 
 
 46. When a person, passing upon a highway, receives an injury, 
 wholly by reason of an illegal defect in the same, caused by the alteration 
 
RAILROAD. 447 
 
 thereof by a railroad company, the town in which it is situated is liable 
 for such injury. Veazie v. Penobscot H. H. Co., xlix. 119. Wellcome 
 V. Leeds, li. 313. 
 
 47. The railroad company is liable to indemnify the town for all the 
 damages it has been compelled to pay, and for the costs and expenses 
 reasonably and fairly incurred, in a suit against them by the person in- 
 jured. Veazie v. Penobscot M. M. Co., xlix. 119. Wellcome v. Leeds, 
 LI. 313. 
 
 48. When the railroad comp.any has been notified of the pendency of 
 such a suit, and requested by the town to assume the defense of it, they 
 are bound by the judgment, and it is conclusive against them as to the 
 cause of the injury and the extent of the damage, whether they appear 
 in the case or not. Veazie v. Penobscot Ji. R. Co., xlix. 119. 
 
 49. The railroad company cannot avoid the efiect of such a judgment, 
 on the ground that they did not receive the notice until the day before 
 the trial, it appearing that one of the directors was present at the trial 
 and took notes, and that they made no request for a continuance or post- 
 ponement of the trial. Veazie v. Penobscot JR. JR. Co., xlix. 119. 
 
 50. Chapter 41 of the Public Laws of 1853, regulating the mode in 
 which a railroad shall cross streets and ways, cannot be construed as re- 
 quiring railroads already constructed, or whose location has been com- 
 pleted and duly filed, and the construction commenced under a binding 
 contract, to locate anew in order to comply with its provisions. Veazie 
 V. JMioyo, XLIX. 156. Wellcome v. Leeds, li. 313. 
 
 51. In such a case, the provision making a railroad which has not con- 
 formed to the statute, in crossing a street or way, a nuisance, and hold- 
 ing the directors of the company personally liable, does not apply. Vea- 
 zie V. Mayo, xlix. 156. 
 
 52. The president and five directors of a railroad company agreed by 
 a memorandum in writing, each to advance certain specified sums, to en- 
 able the company to pay coupons becoming due on its bonds, and that 
 the president should advance the further sum of $2,000, " with the assur- 
 ance from the other five, that, at the next meeting of the directors, they 
 will cause provision to be made " to indemnify him for the proportional 
 "excess advanced by him." At the next meeting, the president was au- 
 thorized to sell or pledge mortgage bonds of the company to raise money 
 "to meet present claims,'' and also to mortgage movable property of the 
 company to secure its creditors. The bonds were sold, and the proceeds 
 applied to pay other and subsequent debts of the company. In an ac- 
 tion by the president, brought against the directors on the written mem- 
 orandum, to recover for tl.e excess advanced by him. Held, that the votes 
 of the directors authorizing the sale of the bonds and mortgage of mov- 
 ables, put it in the power of the president to pay or secure himself, and 
 were a sufficient fulfillment of the agreement of the directors, and the ac- 
 tion could not be maintained. JKiller v. MorrUl, li. 9. 
 
 53. The statute of 1853, c. 41, § 3, relating to the construction of rail- 
 roads across highways, is not retroactive. Wellcome v. Leeds, li. 313. 
 
 54. The provision in the charter of the Androscoggin Railroad Com- 
 pany, that " the railroad shall be so constructed as not to obstruct the 
 safe and convenient use of the highway," is a continuing obligation, re- 
 quiring the company to keep the railroad so constructed at all times. 
 
 Wellcome v. Leeds, li. 313. 
 
448 RAILROAD. 
 
 55. But a town is not thereby absolved from its obligations to see that 
 the highways therein are not rendered unsafe by the crossing of a rail- 
 road. Wellcome v. Leeds, li. 313. 
 
 56. If the highway at a railroad crossing is defective, and the town 
 has notice of it, it is no defense that the particular defect was one which 
 the railroad company ought to have repaired. Wellcome v. Leeds, li. 
 313. 
 
 57. The charters of railroad companies or the general statutes provide 
 a remedy for the owners of lands over which the road is located for dam- 
 ages, where they are not remote and consequential ; but where a com- 
 pany does only what it is authorized to do, and is without fault or negli- 
 gence, it is not liable for consequential damages. Boothhy v. And, & 
 Ken. JR. B. Co., ll 318. 
 
 58. If railroads make a connection under a contract, its continuance, 
 in certain cases, will be enforced in equity. Androscoggin & Kennehes 
 M. a. Co. V. Androscoggin It. R. Co., m. 417. 
 
 59. But, where such contract has been terminated by the parties, equity 
 will not interfere, Androscoggin S Kennebec R. R. Co. v. Androscog- 
 gin R. R. Co., Lii. 417. 
 
 60. The seventh section of the charter of the Androscoggin Railroad 
 Company gives that company the right to connect its railroad with that 
 of the Androscoggin and Kennebec Railroad Company, and the latter 
 to connect its road with that of the former ; but each company has the 
 election whether it will thus connect or not ; and the provision in ques- 
 tion is a privilege and not a contract. Androscoggin <& Kennebec R. 
 R. Go. V. Androscoggin R. R. Co., lii. 417. 
 
 61. It seems that either company, having once elected to connect, 
 might at its pleasure disconnect. Androscoggin <b Kennebec B. B. Go, 
 V. Androscoggin R. R. Co., lii. 417. 
 
 62. If not, the legislature may authorize it to do so ; and the other 
 company cannot complain. Androscoggin dt Kennebec R. B. Co. v. 
 Androscoggin B, R, Co., lii. 417. 
 
 63. It seems, that if one company has elected to connect, that it does 
 not impose on the other company the obligation of continuing the gauge 
 as existing at the time of the connection. Androscoggin & Kennebec 
 B. B. Co. V. Androscoggin R. B. Co., lii. 417. 
 
 64. But, if so, the right does not become vested untU the election to 
 connect ; and if, before such election, the other company is relieved by 
 an act of the legislature, accepted by them, a subsequent election to con- 
 nect is of no avail. Androscoggin S Kennebec B. B. Co. v. Androscog- 
 gin B. B. Co., lii. 417. 
 
 65. Chapter 475 of the laws of 1860, authorized the Androscoggin 
 Railroad Company to change the gauge of their road, and the Andros- 
 coggin and Kennebec Railroad Company, not having elected to connect 
 their road with that of the former company until after that act was 
 passed and accepted, can now do it only in subordination to the rights 
 conferred on the Androscoggin Railroad Company by it. Androscoggin 
 & Kennebec B. B. Co. v. Androscoggin B. B. Co., lii. 417. 
 
 66. A jury appointed to estimate damages for land taken by a railroad 
 company, should not include in their verdict damages occasioned by 
 the neglect of the company to remove the stones thrown upon the pe- 
 
EEAL ACTION. 
 
 449 
 
 titioner's land, by blasting, while grading the land ; but it should include 
 damages caused by blasting. Whitehouse v. Androscoggin R. B. Co., 
 LU. 208. 
 
 67. The maxim — "So use your own property as not to injure the 
 rights of another," is applicable alike to corporations and individuals. 
 Hill V. Portland & Rochester R. R. Co., lt. 438. 
 
 68. A railroad corporation has the right to establish reasonable signals 
 to be given for the starting of trains from its stations. JBill v. Portland 
 & Rochester R. R. Co., lv. 438. 
 
 69. Whether or not the loud and sudden sounding of a steam-whistle 
 is a reasonable signal for such purpose, and within the rule of ordinary 
 care, depends upon all the circumstances of each particular case ; and it 
 is a question for the jury. Ilill v. Portland S Rochester R. R. Co., lv. 
 438. 
 
 70. In the trial of an action for personal injury to the plaintiff, caused 
 by being thrown from his carriage in consequence of his horse becoming 
 frightened at the sound of a locomotive whistle, at a railroad crossing 
 near a station, it is competent for the plaintiff to show that the sound of 
 the whistle produced a similar effect upon other horses, at the same time 
 and place. JETill v. Portland S Rochester R. R. Co., lt. 438. 
 
 71. Also to show the usual efiect of that whistle, at the same place, on 
 ordinary horses. Jlill v. Portland <& Rochester R. R. Co., lt. 488. 
 
 72. It is not competent for the corporation to ask a witness acquainted 
 with the practice of railroads generally, and who had had charge of an- 
 other railroad for sixteen years, whether or not, in his opinion, the sig- 
 nals in question were " reasonable or unreasonable," " prudent or extra- 
 ordinary ; " or whether or not similar signals were given by other railroad 
 corporations. Mill v. Portland & Rochester R. R. Co., lt. 438. 
 
 See AcTiosr, 38. 
 
 Limitation", 5, 6. 
 Bailment, 20. 
 
 CoiTNTT COMMISSIONEES, 14. 
 
 Damages, 15. 
 Limitations, &c., 5, 6. 
 Trespass, 5. 
 
 REAL ACTION. 
 
 I. WHEN AND BY WHOM MAINTAINABLE. 
 
 II. PLEADINGS BY THE PLAINTIFF, 
 
 in. PLEADINGS BY THE DEFENDANT. 
 
 IV. EVIDENCE. 
 
 V. JUDGMENT. 
 
 L WHEN AND BY WHOM MAINTAINABLE. 
 
 1. Where the tenant holds under a sale of the right in equity of re- 
 demption, he will not be ousted by one who has not the record title to 
 
 29 
 
450 REAL ACTION. 
 
 such redemption, althongh he may have previously paid the mortgage. 
 Wilson V. Soper, xliv. 118. 
 
 2. A verdict for a tenant, who claims title by twenty years' possession, 
 cannot be sustained, where there is no evidence that his possession was 
 adverse to the title or interest of the demandant who was the true own- 
 er. Eaton V. Jacobs, xlix. 559._ 
 
 3. Ejectment may be maintained against an infant for disseisin, that 
 being a tort. Marshall v. Wing, l. 62. 
 
 4. If a part of the premises demanded is a passage-way, to the line of 
 which the tenant is bounded, the demandant will be entitled to recover, 
 the fee of the land being in him, notwithstanding the tenant may have 
 an easement in the passage-w9y. Blake v. Ham, l. 312. 
 
 5. If an execution is extended upon land of the debtor, and it is set 
 off to the creditor in satisfaction of the judgment, and such judgment 
 is afterwards reversed upon a writ of error, the debtor is entitled to the 
 land again. Bryant v. Fairfield, li. 149. 
 
 6. And he may recover it of one who purchased it of the creditor be- 
 fore the reversal, without notice of any defect therein. Bryant v. Fair- 
 field, LI. 149. 
 
 7. Or, if he has not been evicted, such grantor of the creditor cannot 
 maintain an action to recover it of the debtor. Bryant v. Fairfield, li. 
 149. 
 
 8. The mortgagee, or person claiming under him, cannot maintain a 
 writ of entry against the assignee of an undischarged mortgage, paid after 
 breach of condition. Dyer v. Toothaker, li. 380. (See Public Laws of 
 1870, c. 142.) 
 
 9. If, after the commencement of a real action, the tenant abandon the 
 premises and the demandant take possession, the action cannot be further 
 maintained for the purpose of recovering the demandant's costs. Tufts 
 V. Maines, li. 893. 
 
 10. But a mortgagee, under such circumstances, may iriaintain his ac- 
 'tion for the purpose of foreclosing his mortgage. Tufts v. Maines' li. 
 
 393. 
 
 11. The owner of the equity of redemption of real estate may main- 
 tain a real action for its possession against any one, except the mortgagee 
 and those claiming under him. Stinson v. Buss, li. 556. 
 
 12. A mortgager cannot maintain ejectment against a mortgagee in 
 possession. Conner v. Whitmore, lii. 185. 
 
 13. Where, in the trial of a writ of entry, the plaintiff's title depends 
 upon a levy, a valid judgment must be proved, if the defendant be not a 
 party or privy to it. Tebbetts v. Estes, lii. 566. 
 
 14. And where, in such case, all of the deeds, under or through which 
 the plaintiff claims, are merely releases of the interest which the releasors 
 had in the land, and it does not appear that any of them were ever in 
 possession, the defendant must prevail, it being alleged in the writ that 
 the defendant is in ptissession. Tebbetts v. Estes, lu. 566. 
 
 15. A conveyance being void, the title is regarded as remaining in the 
 fraudulent grantor, so far as creditors are concerned, and a judgment cred 
 
KEA.L ACTION. 451 
 
 itor, by a levy, acquires such seisin as enables him to maintain a real ac- 
 tion against the fraudulent grantor. Marston v. Marston, lit. 476. 
 
 16. The fact that the judgment, on which the levy was based, was 
 founded upon a note given since such fraudulent conveyance, but in re- 
 newal of a prior indebtedness, will not affect the rights of the plaintiff in 
 such real action. Marston v. Marston, lit. 476. 
 
 17. The assignee of three out of four mortgagees in a mortgage given 
 to secure their several debts, may maintain a writ of entry for the pos- 
 session of the mortgaged premises, against the mortgager and all claim- 
 ing under him, if the interest of the fourth mortgagee has not been legal- 
 ly assigned to the party' defendant, but remains vested in some third 
 party. Brown v. Bates, lv. 520. 
 
 18. Whether, in a writ of entry, the fact of non-tenure, seasonably 
 pleaded by one of several tenants, be established by verdict, or the ad- 
 mission of the demandant, the effect will, so far as the tenant disclaiming 
 is concerned, operate an estoppel of record. But this result will not at- 
 fect the right of the demandant to recover against the remaining defend- 
 ants. Sotchkiss V. Hunt, lvi. 252. 
 
 See Mortgage, 59. 
 
 II. PLEADINGS BY THE PLAIITTIFF. 
 
 19. A declaration in a writ of entry, (1) Must clearly describe the 
 premises ; (2) State the estate claimed by the demandant in the prem- 
 ises, whether it be a fee-simple, fee-tail for life, or for years ; and, if for 
 life, then whether for his own life or that of another ; (3) Allege that the 
 demandant was seized of the estate claimed within twenty years; and 
 (4) Allege a disseisin by the tenant. Wyman v. Brown, l. 139. 
 
 20. It is no ground for demurrer, that in a writ of entry it is not al- 
 leged that the land demanded is in the county in which the action is 
 brought; it is sufficient if it is described as being in a town which is 
 within the county. Martin v. Martin, li. 366. 
 
 See Amendment, 11, 12. 
 
 in. PLEADINGS BY THE DEFENDANT. 
 
 21. By the common law, the plea of nul disseisin so far admits the 
 tenant's claim to have the freehold, that the demandant need not prove 
 the tenant's possession. Colburn v. Graver, xlit. 47. 
 
 22. The possession of the demanded premises by the tenant, is admit- 
 ted by the plea of the general issue. Colburn v. Graver, xliy. 47. 
 OhapUn v. Barker, liii. 275. 
 
 23. The plea of non-tenure is required to be in abatement and not in 
 bar. Colburn v. Graver, xliv. 47. Wyman v. Brawn, l. 139. Chap- 
 lin v. Barker, Lin. 275. 
 
 24. By the rules of pleading, the defendant, in a real action, admits 
 himself to be in possession of all the land demanded, if he files no dis- 
 claimer ^f the whole or of any part of it. Blake v. Bennett, xlix. 102. 
 
 25. An infant defendant in a real action must appear and plead by 
 
452 
 
 REAL ACTION. 
 
 guardian, or the judgment will be erroneous ; otherwise, if, pending the 
 suit, he attains to full age and afterwards pleads. Marshall v. Wing, l. 
 62. 
 
 26. Under the general issue pleaded in a real action, the real contest 
 is, which party can show the better title in himself. Marshall v. Wing, 
 L. 62. Chaplin v. Baker, liii. 275. Tebbetts v. JEstes, lii. 566. 
 
 27. The defendants who neglect to plead non-tenure in abatement, 
 cannot avail themselves of that defense, by joining with another defend- 
 ant in a plea oinul disseisin. Wyman v. Brown, l. 139. 
 
 28. Whether a joint plea of nul disseisin by three, can be supported 
 as to either, by proof of anything short of joint tenancy or a tenancy in 
 common by all three, quaere. Wyman v. Brown, l. 139. 
 
 29. Under the general issue, the defendant may rest upon his posses- 
 sion until the plaintiff has shown some right to disturb it. Ghaplin v. 
 Barker, liii. 275. Tebbetts v. JEstes, lii. 566. 
 
 30. The fact that the defendant has an easement in the demanded 
 premises is no bar to the plaintiff's right of recovery. Blake v. Sam, 
 liii. 430. 
 
 IV. EVIDBNCE. 
 
 (a) On the pabt of the plaintiff. 
 
 (b) On the part op the defendant. 
 
 (a) On the part of the plaintiff. 
 
 31. Where, in the trial of a writ of entry, the title of the tenant de- 
 pends upon a conveyance to him alleged by the plaintiff to be fraudu- 
 lent as to existing creditors, it appeared that the grantor of the tenant 
 was one of the two members of a firm which conveyed, at about the 
 same time he made the conveyance in controversy, all of their property, 
 whether owned by the firm or partners separately to different persons, 
 Ibut principally to the father of one, and the son of the other. Held, that 
 while it was not competent for the plaintiff to prove the subsequent dec- 
 larations or the general acts of the grantor, he may the subsequent dis- 
 position of the property thus conveyed by the firm, for their benefit, or 
 for the benefit of the alleged fraudulent grantor, or that they subse- 
 quently received the earnings or proceeds thereof Warren v. Williams, 
 LH. 343. 
 
 32. Where the plaintiff's title to the land in question depends upon a 
 levy, a valid judgment must be proved, if the defendant be not a party 
 or privy to it. Tebbetts v. £Jstes, lii. 566. 
 
 33. Where all of the deeds under or through which the plaintiffs claim, 
 are merely releases of the interest which the releasors had in the land, 
 and it does not appear that any of them were ever in possession, the de- 
 fendant must prevail, it being alleged in {ke writ that he is in posses- 
 sion. Tebbetts V. JEstes, 1,11. b6&. 
 
 34. In a real action, evidence that the plaintiff used all the means in 
 his power to produce an original deed, forming a part of the defendant's 
 chain of title and alleged to be forged, is inadnaissible. Webste% v. Gal- 
 den, LV. 165. 
 
REAL ACTION. 453 
 
 35. To enable the plaintiff in a real action, claiming under a mort- 
 gager of the premises in controversy, to give in evidence the declara- 
 tions of the mortgagee under whom the defendant claims, in relation to 
 the payment of the mortgage, — he must show that the mortgage note, 
 payable on demand, &c., bearing an indorsement in blank, was not in- 
 dorsed before maturity, or that it was in the hands of the mortgagee 
 when the declarations were made. Webster v. Calden, lvi. 204. 
 
 36. In the trial of a real action wherein the plaintiffs claim title as as- 
 signees of the mortgager, and the defendants as assignees of the mort- 
 gagee of a mortgage conditioned for the payment of a specified sura or 
 the support of the mortgagee during life, and to allow the latter \o oc- 
 cupy a certain part of the house on the mortgaged premises, Held, That 
 evidence on the part of the plaintiffs is admissible to prove, (1) Which, 
 if either, of the alternate conditions the mortgager had elected to per- 
 form; (2) That he had fulfilled the one elected so long as he continued in 
 possession; and (3) That the assignment of the mortgager was made with 
 the consent of the mortgagee, who was anxious for such assignee to ful- 
 fill the condition, which he offered to do. JBryant v. JUrskine, lvi. 569. 
 
 See ExEctrTiosr, 97. 
 Peacticb, 62. 
 
 (b) On the part of the defendant. 
 
 37. In a real action, the certificate of tlie land-agent of the State, per- 
 mitting the defendant to enter upon the lot, as a settler, with proof that 
 he has performed all the duties of a settler, but that the agent has con- 
 veyed the lot to demandant's grantor, affords him no legal ground of de- 
 fense. Stevens v. JBragdon, xlv. 31. 
 
 38. A party in possession of land, but having no title, will not be per- 
 mitted to object to an informality in the execution of the owner's deed, 
 to defeat a writ of entry brought by the owner to recover possession. 
 Clarh V. Pratt, xlvii. 55. 
 
 39. In the trial of an action of ejectment, where the plaintiff's title de- 
 pended upon the levy of an execution in favor of the plaintiff against the 
 defendant's grantor, made subsequent to the conveyance. Held, (1) That 
 all testimony tending to show that the note constituting the foundation 
 of the judgment satisfied by the levy, or the amount of costs in said judg- 
 ment; and (2) All deeds of other laud, in no wise connected with the 
 demanded premises, given by other partie^ to the execution debtor, and 
 by him to the defendant, were inadmissible. Sidensparker v. Sidens- 
 parker, lii. 481. 
 
 40. The defendant may rebut the plaintiff's proof of seisin by any 
 legal evidence. As where the plaintiff's seisin depended upon a sheriff's 
 sale of the defendant's right in equity to redeem the premises from a 
 mortgage, consisting of a warranty deed with a bond of defeasance back. 
 Held, that it was competent for the defendant to prove an assignment of 
 the bond prior to the plaintiff's attachment, together with the considera- 
 tion of the assignment. Chaplain v. Barker, liii. 275. 
 
 41. A saw-mill owned by the plaintiff and the defendant's grantor, as 
 tenants in common, was destroyed by fire. Subsequently, the latter 
 called a meeting of the owners, and proceeded to rebuild under R. S. of 
 1841, c. 86. Having rebuilt, he conveyed to the defendants by deed of 
 
454 REAL ACTION. 
 
 warranty, containing the following, — "meaning hereby to convey one- 
 half of the saw-raill privilege and all the mill, subject to the claims of " 
 the plaintiff "in said mill, and reserve to myself all my claims and rights 
 of action against the " plaintiff. Hdd, that all testimony relating to the 
 proceedings of calling a meeting of the owners, and the proceedings un- 
 der it, are inadmissible under the plea of nul disseisin and brief state- 
 ment setting out such proceedings. Moore v. Gibson, liii. 551. 
 
 42. The title of a tenant in a real action cannot be affected by "ac- 
 tual notice" of a prior unregistered deed, on the part of any of his pred- 
 ecessors in title, if the former be an innocent purchaser for value, with- 
 out actual notice of said deed. Brachett v. Ridlon, liv. 426. 
 
 43. In the trial of a real action between tenants in common, the de- 
 fendant, under the general issue alone pleaded, cannot give in evidence 
 that he "had never ousted the plaintiff of his portion of the demanded 
 premises, nor in any way hindered his taking possession, but had only 
 been in possession of the same as tenant in common with the demand- 
 ant." Billings v. Gibbs, lv. 238. 
 
 44. Under the general issue, the defendant, in a real action,_ cannot 
 give in evidence an outstanding title acquired by him from a third per- 
 son since the date- of the writ. Clark y. Pratt, lv. 546. Chick v. Rol- 
 lins, XLiv. 104. 
 
 45. Where the office copy of a deed is admissible under Pulilic Laws 
 of 1862,0. 112, and the deed appears to have been duly and properly re- 
 corded, it is presumed to have been duly executed and delivered ; and 
 to entitle the party holding adversely to such deed to recover, he must 
 overcome such presumption by sufficient proof. Webster v. Calden, lv. 
 165. 
 
 8ee Pbactice, 73. 
 
 V. JUDGMENT. 
 
 46. By prosecuting a suit on a mortgage to final judgment and execu- 
 tion in favor of the mortgagee, he thereby waives foreclosure in any 
 other mode, and the mortgager's right to redeem will be extended ac- 
 cordingly. Tufts V. Maines, li. 393. 
 
 47. A judgment on a writ of entry negatives the existence of the rela- 
 tion of landlord and tenant between the parties. Goddard v. Mall, lt. 
 579. 
 
 48. Under our statute, in the trial upon a writ of entry, on the general 
 issue, the rendition of a general verdict in favor of the demandant en- 
 titles him to judgment for such part of the demanded premises as has 
 not been disclaimed. ^Russell v. Brown, lti. 94. 
 
 KEAL ESTATE, SALE OF. 
 See Peobate Cotjet, 20, 26, 27, 29, 30. Tax, 32-36. Title, &c., 14. 
 
KECEIVBR. KECOGNIZANCE. 455 
 
 RECEIVER OF STOLEN GOODS. 
 
 See Laecenct. 
 
 RECEIVER. 
 
 1. .The legal authority of receivers, duly appointed in another State, 
 is coextensive with the jurisdiction of the court by which they were ap- 
 pointed. Hunt V. Columbian Ins. Co., lv. 290. 
 
 2. Comity does not require the S. J. Court of this State to permit re- 
 ceivers appointed by the court of another State to exercise privileges 
 detrimental to our own citizens, while pursuing appropriate legal reme- 
 dies here. Hunt v. Columhian Ins. Co., lv. 290. 
 
 See AMERicAif Bank, 4, 13, 14. 
 
 COEPOKATION, 15, 16. 
 
 RECOGNIZANCE. 
 
 I. IN CRIMINAL CASES. 
 n. ON AN APPEAL IN CIVIL CASES. 
 III. ACTIONS UPON KECOGNIZANCE. 
 
 I. IN CEIMINAL CASES. 
 
 1. The recital in a recognizance, taken by a magistrate, that he fou'nd 
 that "there was good reason and probable cause to believe said defend- 
 ant is guilty," is equivalent to finding that "there was probable cause to 
 charge the accused." State v. Baker, l. 45. 
 
 2. A recognizance taken by a magistrate with a single surety, is valid, 
 although it is his duty to require sureties. State v. Baker, l. 45. 
 
 3. A recognizance taken by a magistrate upon the examination before 
 him, of a person charged with a crime beyond his jurisdiction, condi- 
 tioned for the personal appearance of the accused before a higher court, 
 "to answer the complaint aforesaid, abide the order of court thereon, 
 and not depart from said court without license therefor," is valid. State 
 V. Baker, l. 45. 
 
 4. When a person is committed to jail by a magistrate for failing to 
 give such a recognizance as he has authority to require, two justices 
 of the peace and of the quorum are authorized by our statute to admit 
 the prisoner to bail, by taking a recognizance with the same conditions 
 required by the magistrate. State v. Baker, l. 45. 
 
 5. A recognizance, with sureties for his appearance at a certain term 
 of this court, entered into before a police judge by a person accused of 
 
456 RECOGNIZANCE. 
 
 an assault with intent to kill, is amendable even after suit is commenced 
 upon it. State v. Young, lvi. 219. 
 
 6. Such a recognizance taken by the police judge before -whom the 
 examination was had, after the officer, in pursuance of a mittimus duly 
 issued on the default of the accused to recognize, had taken the pris- 
 oner into his custody and departed from the police court, and before a 
 fuU commitment thereon, is void. State v. Young, lvi. 219. 
 
 n. ON AN APPEAL IN CIVIL CASES. 
 
 7. The recognizance taken before the magistrate on an appeal must be 
 returned to the appellate court. A copy cannot be entered of record ; 
 nor is it admissible to contradict the original, or shosv it to be defective. 
 Stetson V. Corinna, xliv. 29. 
 
 8. Where no recognizance is returned when the appeal is entered, it 
 may be received and entered of record by leave of court, after a motion 
 to dismiss for its non-return. Stetson v. Corinna, xliv. 29. 
 
 9. A recognizance, conditioned " to pay all intervening damages and 
 costsj" entered into to prosecute an appeal in an action of trover, is un- 
 authorized and void, and furnishes no security to the adverse party for 
 costs; and the court will, on motion, dismiss the appeal. Jordan v. Mc- 
 Kenney, xlv. 306. 
 
 10. The appellant should recognize to prosecute, even if the opposite 
 party waive his right to sureties. Bennett v. Oreen, xlvi. 499. 
 
 11. In forcible entry and detainer, where the magistrate adjudges the 
 defendant guilty, and he enters an appeal, it is not necessary that the 
 recognizance shall require payment of "such reasonable rent of the 
 premises as the magistrate shall adjudge," if no rent is adjudged by the 
 magistrate to be payable. Merrill v. Hinckley, xlix. 40. 
 
 12. And when the recognizance contains conditions not required 
 by .the existing statute, it is defective, and the appeal will be dismissed. 
 Mbrrill v. Hinckley, xlix. 40. 
 
 13. Under R. S., c. 94, § 8, a recognizance requiring the appellant to 
 "appear" at the appellate court, prosecute his appeal "with effect," "re- 
 cover back possession of the premises," and pay all intervening "dam- 
 ages" and costs, in case he does not recover possession, is unauthorized 
 and illegal. Merrill v. Hinckley, xlix. 40. 
 
 ni ACTIONS UPON BBCOGNIZANCES. 
 
 14. To sustain an action upon a recognizance taken to prosecute an 
 appeal from a judgment of a justice of the peace, it is not necessary 
 that it be recorded rw ea;fenso in the appellate court; the certificate of 
 the clerk upon it, showing it to have been filed before the action was 
 commenced, is a sufficient record. Leathers v. Cooley, xlix. 337. 
 
RECORD. REFORM SCHOOL. 457 
 
 RECORD. 
 
 1. The record of a subordinate tribunal is not conclusive as to its ju- 
 risdiction ; but the jurisdiction being established, the statements in the 
 record, touching matters legitimately before the tribunal, are conclusive. 
 Foss V. Edwards, xlvii. 145. Willard v. Whitney, xlix. 235. 
 
 2. The clerk's docket is the record of the court, until the record is 
 fully extended. Pierce v. Goodrich, xlvii. 173. Willard v. Whitney, 
 XLIX. 235. Leathers v. Cooley, xlix. 337. , 
 
 3. Papers in a case acted upon as evidence, are no part of the record. 
 LoveU v. Kelley, xlviii. 263. 
 
 4. The records of a court, when once made, are conclusive upon all 
 parties until altered or set aside by a court of competent jurisdiction. 
 
 WiUard v. Whitney, xlix. 235. 
 
 5. If any errors are shown to exist in any record, they may be cor- 
 rected by the court, Willard v. Whitney, xlix. 235. 
 
 6. Docket entries cannot be received to contradict the record when 
 once extended. WiUard v. Whitney, xlix. 235. 
 
 7. Evidence that a docket entry has been erased may be received as 
 the basis of an amendment of the record, but not to contradict it. Wil- 
 lard V. Whitney, xlix. 235. 
 
 8. In an action upon a recognizance taken to prosecute an appeal from 
 the judgment of a'justice of the peace, a final judgment must be proved; 
 and when the appellant had neglected to furnish copies of the papers nec- 
 essary to make up an extended record, the clerk's docket, showing an en- 
 try of the amount of debt and costs recovered, maybe admitted as a record 
 of the judgment, although the time has elapsed, within which the papers 
 can be filed, to authorize the clerk to extend and complete the record, as 
 of the term when judgment was recovered. Leathers v. Cooley, xlix. 337. 
 
 See Judgment, 1. 
 Amendment, 33. 
 
 REFORM SCHOOL. 
 
 1. Magistrates have no authority to sentence a boy to the State Re- 
 form School, for a breach of the by-laws of a town, for a term exceeding 
 one year. Lewiston v. Fairfield, xi.vii. 481. 
 
 2., If the process by which a boy is committed to the Reform School 
 is void, the town from which he was committed cannot recover sums 
 paid for his support at that school from the town of his legal settlement. 
 Lewiston v. Fairfidd, xlvii. 481. 
 
 3. Chapter 87 of the Public Laws of 1858, provides that the expense 
 of subsistence, &c., of a boy sent to the Reform School shall be defrayed 
 by the town, where he resides, if in the State; otherwise by the town in 
 which he commits the offense. Held, that the town of his residence at 
 
458 KEGISTEK, AND EEGISTRY OF DEEDS. RELEASE. 
 
 the time of his commitment, if within the State, is thus made liable, 
 and not tlie town in which he committed the offense. Scammon v. 
 Wells, L. 584. 
 
 EEGISTER, AND REGISTRY OF DEEDS. 
 
 1. The election, or appointment of register of deeds, depends wholly 
 upon statute law, which provides that such officer shall be elected in the 
 year 1857, and in every five years then following. R. S., c. 7, § 2. Rose 
 V. JShox Go. Comm^rs, l. 243. 
 
 2. When a vacancy occurs, the chairman of the county commissioners 
 is to issue his warrants to the municipal officers of the several towns, &c., 
 of the registry district, to fill the vacancy. Rose v. S:nox Go. Gomm\s, 
 L. 243. 
 
 3. Without such warrants, the municipal officers of the towns cannot 
 legally call meetings to fiU such vacancy. Rose v. Knox Go. Gomm^rs, 
 L. 243. , 
 
 4. Act of March 9, 1860, incorporating the county of Knox (which 
 was to take effect on the first day of Apiil), authorized the governor to 
 appoint a register of deeds, and certain other officers for the county, who 
 were to continue in office until their places were filled by an election, ac- 
 cording to the laws; manifestly intending an election in the manner pre- 
 scribed by the general law, and not that there should be special interme- 
 diate elections. Rose v. Knox Co. Gomm\s, l. 243. 
 
 5. By the general law, the time for the election of register of deeds 
 would be in the year 1862. The register appointed by the governor 
 would hold until that time, and, whife he thus continued to hold, there 
 would be no vacancy. Rose v. Knox Go. GomnCrs, l. 243. 
 
 REGISTRATION. 
 
 See Assignment, 12. Execution, 21. Moetgage, 4, 7, 9,134, 135,136. 
 
 RELEASE. 
 
 1. Subsequent to the commencement of an action upon a poor debt- 
 or's bond, one-half of the original judgment was released by the credi- 
 tor, and the court held that the judgment is not vacated by such release, 
 but should be rendered for the balance. Garr v. Mason, xliv. 7,7. 
 
 2. Such release can only be pleaded in satisfaction pro tanto. Garry. 
 Mason, xliv. 77. 
 
BEMAINDEK. 459 
 
 3. Where one of two joint debtors has been dischargecl from his share 
 of the debt, by a release not under seal, though for a sufficient consider- 
 ation, such discharge is no defense to either in an action against both. 
 Brinkwater v. Jordan, xlvi. 432. 
 
 4. A technical release, under seal, to one of several joint debtors, may 
 be pleaded in bar to a suit against both. Drinkwater v. Jordan, xlvi. 
 432. 
 
 5. In a suit on a bond in the name of joint obligees, a paper under 
 seal, signed by one of the plaintiffs, denying any authority for the use of 
 his name in the suit, and forbidding its further prosecution, but contain- 
 ing no words showing an intention to discharge the cause of action, will 
 not operate as a release. Southwick v. Hopkins, xlvii. 362. 
 
 6. Where the party signing the paper had, previous to the commence- 
 ment of the suit, assigned all his interest to the other obligees, they had 
 a right to use his name in the action, and he could not interfere for any 
 other ptirpose than to require indemnity for costs. Southwick v. Sop- 
 kins, XLVii. 362. 
 
 7. Several releases by joint trustees will not bar a legal joint cl.iim by 
 the trustees against the person to whom such releases have been given. 
 Pearce v. Savage, li. 410. 
 
 8. If an execution creditor execute and deliver to the debtor a sealed 
 release and discharge, purporting to be for value, of a judgment between 
 the parties, after informing the debtor of a prior assignment of such judg- 
 ment to an innocent purchaser, such release will not avoid the assign- 
 ment. Call V. Foster, ua. 257. 
 
 9. In assumpsit by the owners of a vessel against its master for earn- 
 ings, a release by one of the plaintiffs is a bar to the action ; and evi- 
 dence of collusion between the parties to the release is inadmissible to 
 change its effect. Hall v. Gray, liv. 230. 
 
 See Attachment, 54. 
 Deed, 8. 
 
 REMAINDER. 
 
 A person entitled to a vested remainder, has an immediate fixed right 
 to future enjoyment, which passes by deed. Pearce v. Savage, xlv. 90. 
 
 RENT. 
 
 See Deed, 47. Executor, &c., 12, 13. Landloed, &c., 14, 32. 
 
 RENTS AND PROFITS. 
 
 See Action, 10. Assumpsit, 35. Equity, 186. Teespass, 21. 
 
460 REPLEVIN. 
 
 EEPLEVIN. 
 
 I. BY AND AGAINST "WHOM REPLEVIN MAY BE MAINTAINED. 
 
 II. BOND. 
 
 III. JUDGMENT FOR KETUEN. 
 
 IV. EVIDENCE AND PBACTICE. 
 
 I. BY AND AGAINST WHOM REPLEVIN MAY BE MAINTAINED. 
 
 1. The right of possession in the plaintiff at the time of the taking or 
 detention, necessary to maintain replevin, may follow either the general 
 or special ownership of the property. /School Dis. in /Scmford v. JOordy 
 XLiy. 374. 
 
 2. As between a school district and a stranger, the possession of their 
 records by the clerk, is the possession of the district ; and replevin may 
 be maintained therefor in the name of the corporation against one not 
 legally elected as clerk. /School Dis. in /Sanford v. Lord, xliv. 374, 
 
 3. The owner of a tract of land gave the plaintiff a permit to cut and 
 take away certain trees, reserving the ownership and control of the lum- 
 ber cut, until payment therefor shall have been made. The defendants, 
 without license, entered, cut and removed the trees. Held, that the 
 plaintiff had no such properly, or right of possession, in the lumber, as 
 would entitle him to maintain replevin therefor. GHllerson v. Ma/nsiur, 
 XLV. 25. 
 
 4. When a mortgagee of chattels has the right of immediate posses- 
 sion of the mortgaged property, no demand is necessary in order that he 
 may sustain replevin against the subsequent vendee of the mortgager. 
 Partridge v. Swazey, xlvi. 414. 
 
 5. Replevin will not lie to obtain possession of an article manufactured 
 to order, until it is completed and delivered. Pettingill v. Merrill, xltii. 
 109. 
 
 6. A. accepted an order to build a boat for B., who proceeded to build 
 one which he repeatedly declared he was building for B. on the order; 
 but, after it was finished, he refused to deliver it. Held, that B. could 
 not maintain replevin for the boat, his remedy being by an action on 
 the contract. Pettingill v. Merrill, xltii. 109. 
 
 7. The owner of goods cannot maintain replevin against a person law- 
 fully in possession of them, Tvithout a previous demand and refusal, or 
 acts on the part of the possessor amounting to a conversion. Newman 
 V. Jenne, xlvu. 520. 
 
 8. There is no conversion for which replevin -will lie, unless there be a 
 repudiation by the possessor of the right of the owner, or the exercise of 
 a dominion inconsistent therewith. Newman v. Jenne, xlvii. 520. 
 
 9. A. mortgaged a pair of oxen to B., to secure the payment of a note. 
 After maturity, B. requested payment. A. did not pay, but took the oxen 
 into the woods for lumbering. B. without demanding the oxen, re- 
 plevied them. Held, that the action could not be maintained. Newman 
 T. Jenne, xlvii. 520. 
 
REPLEVIN. 461 
 
 10. The city of Bath cannot, by virtue of § 11 of c. 450 of the Special 
 Laws of 1860, maintain replevin against an officer who had, before posses- 
 sion of the road was taken by the city under § 6, attached wood purchased 
 by the earnings of the entire Androscoggin Raih-oad ; nor prevent "judg- 
 ment for a return " in such action. Bath v. Miller, li. 341. 
 
 11. The plaintiff delivered S40 worth of duck to H., who agreed to 
 have it manufactured into a sail, and that it should remain the property 
 of the plaintiff until it was paid for. H. caused it to be manufactured, as 
 by agreement, at a cost of $18, and, without paying the plaintiff, sold it 
 to the defendant. The plaintiff, after demand and refusal, replevied the 
 sail. Held, that replevin could be maintained upon two grounds : 
 (1) Because the plaintiff never parted with his property ; and (2) On the 
 principle of accession. Eaton v. Munroe, lii. 63. 
 
 12. The owner of goods transported by an express company, may, af- 
 ter tender of the sum legally chargeable against such goods, and after 
 demand and refusal, maintain replevin therefor against the agent of such 
 company having the care of the goods in one of the company's places of 
 deposit. Evdeth v. JBlossom, jay. 447. 
 
 13. Replevin is maintainable only against a person having possession 
 or control of the chattels to be replevied. RamsdeU v. JBuswell, liv. 
 546. 
 
 14. No defendant in replevin, or any person deriving title from him 
 after the service of the writ, can, during the pendency of the suit, main- 
 
 t tain a subsequent action of reple\'in for the same property, against the 
 former plaintiff in possession. Hvies v. Alle7i, lv. 114. 
 
 15. If, upon citation, the surviving partner of a firm decline to give 
 the bond provided in R. S., c. 69, § 2, the administrator of the deceased 
 partner, on giving the bond prescribed for him, is entitled to the pos- 
 session of the partnership estate for administration ; and may maintain 
 replevin therefor against an officer who has attached such estate in an 
 action by a creditor of the firm, against the surviving partner. Putnam, 
 V. Parker, lv. 235. 
 
 16. It is not essential to the maintenance of replevin, that the prop- 
 erty replevied be, at the time of the issuing or service of the writ, in the 
 actual possession and under the immediate and exclusive care and con- 
 trol of the defendant personally. Howe v. Shaw, lvi. 291.. 
 
 17. It seems, it may be maintained against either member of a copart- 
 nership when the property replevied is in the possession of any one of 
 
 ■ them, while claiming to act for, and really acting with, the concurrence 
 of all. Howe v. Shaw, lvi. 291. 
 
 18. Merchandise purchased upon a credit through the fraudulent rep- 
 resentation of the vendee, and, after delivery, attached by prior cred- 
 itors, may be replevied from the attaching officer by the vendor. Jor- 
 dan V. Parker, lvi. 557. 
 
 See Laitdlobd, <&c., 22, 23. 
 
 IL BOND. 
 
 19. In a suit upon a replevin bond, the plaintiff is entitled to damages 
 for detention. Thomas v. Spofford, xlvi. 408. 
 
462 KEPLEVIN. 
 
 20. In debt on a replevin bond after a judgment for a return, the de- 
 fendant who replevied a horse from the plaintiff, an officer, who had 
 seized it on execution as the property of a third person, is not liable for 
 its value, if the horse died during the pendency of the suit, without the 
 fanlt of any one, provided the replevin suit was commenced in good faith. 
 
 Walker v. Osgood, liii. 422. 
 
 21. A replevin bond, in less than "double the value of the goods to be 
 replevied," is good at common law. Tuck v. Moses, liv. 115. 
 
 22. If a plaintiff in replevin neglects to comply with the judgment for 
 return, following an abatement of ti)e writ, because of such defective 
 bond, the defendant in replevin may maintain an action thereon, notwith- 
 standing the writ was abated upon his motion. Tuck v. Moses, liv. 115. 
 Parker v. Hall, lt. 362. 
 
 23. Where, by a replevin writ, the officer was commanded to replevy 
 eleven different parcels of wood, situated in various towns mentioned, 
 along the line of a railroad, with the number of cords in each parcel dis- 
 tinctly stated, and the officer returned thereon that he had " replevied 
 all the wood at the various places within mentioned," Held, that the re- 
 turn was indefinite and uncertain as to the quantity of wood replevied, 
 and that the sureties on the replevin bond are not liable to return what 
 was not taken. Miller v. Moses, lvi. 128. 
 
 24. At common law, nil debet is not a good plea to debt on bond ; but 
 if pleaded and joined, the obligor may, it seems, prove any fact tending 
 to reduce his indebtedness. Miller v. Moses, lvi. 128. ' 
 
 25. If goods have been damaged since they were replevied, and while 
 in the possession of the plaintiff in replevin, their mere restoration in a 
 damaged condition will not be a compliance with the bond which requires 
 them to be restored in like good order and condition as when taken. 
 Berry v. Hoeffner, lvi. 170. 
 
 26. The language prescribed by the statute, both in replevin bonds and 
 in judgments for returns, by implication, if not in terms, requires the prop- 
 erty replevied to be returned in the same condition as when taken. Ber- 
 ry V. Iloeffner, lvi. 170. 
 
 See Costs, 50. 
 
 Estoppel, 19, 23. 
 Attoknbt, &c., 11. 
 Replevin, 36. 
 
 in. JUDGMENT FOR RBTtTKK. 
 
 27. Where the plaintiff in replevin became nonsuit, and a judgment 
 was rendered for a return and restitution, if the clerk, in issuing the writ 
 of restitution, inserted therein the value of the property as named in the 
 replevin writ, this being unauthorized by the judgment, and a mere min- 
 isterial act, will be regarded as a nullity. Thomas v. Spofford, xlvi. 408. 
 
 28. In replevin, a judgment for return is a direct and conclusive adju- 
 dication that the defendant's right of possession is superior to the plain- 
 tiff's. Bath V. Miller, liil 308. 
 
 29. By the statute, a defendant in replevin, having caused the writ to 
 be abated by reason of the informality of the replevin bond, may, if en- 
 
REPLEVIN OF A fEKSON. 463 
 
 titled to a return, have a judgment and a writ of return accordingly. 
 Parker v. Hall, lv. 362. 
 
 30. A judgment that "the said -wood be returned and restored to the 
 said" defendant, "irrepleviable, with costs," &o., refers only to the wood 
 actually replevied. Miller v. Moses, lvi. 128. 
 
 IV. EVIDENCE AND PKACTICE. 
 
 31. In replevin, the title and right of possession to the property are 
 the matters to be determined ; its value is not an issue to be tried. 
 Thomas v. Spofford, xlvi. 408. 
 
 32. In replevin for certain articles of merchandise, where the defendant 
 alleged, by way of a brief statement, that the property was no part of 
 an estate of which she was administratrix, the plaintiff was permitted to 
 testify that the goods were not sold by him to the defendant's intestate, 
 but consigned to him for sale. Beach v. Pennell, l. 587. 
 
 33. In an action of replevin for a colt, brought by an executor, the 
 plaiDtiif will not be permitted to prove the declarations of his testator, 
 made while the colt remained on his premises, with his other stock, tend- 
 ing to show that he claimed to own the colt, to rebut testimony offered 
 by the defendant, tending to show a previous gift by the testator to his 
 son who lived with him, and of whom the defendant had purchased the 
 colt. Holmes v. Sawtelle, liii. 179. 
 
 34. When a defendant in replevin has caused the writ to be abated be- 
 cause the penalty of the bond was too small, he may, if entitled to a re- 
 turn, have a judgment and a writ of return accordingly. He may also 
 have a remedy on the bond, or an action on the case against the officer, 
 for the insufficiency of the bond; or he may regard the taking as tortious, 
 and maintain trespass against the replevying officer; but he cannot iiave 
 an action of trespass in addition to the statute remedies. Tuck v. Moses, 
 LIT. 115. Parker v. HaU, lt. 362. 
 
 35. The return on a replevin writ should state precisely what property 
 is thereby replevied. Miller v. Moses, lti. 128. 
 
 36. In an action on a replevin bond, the principal not being an inhab- 
 itant of this State and having no agent, or attorney, or property here, 
 seasonably appeared and moved the writ abate for want of jurisdiction 
 as to him, Ileld, that the plaintiff have leave to discontinue as to him 
 upon the terms prescribed by R. S., c. 82, § 12. Berry v. Hoeffner, lvi. 
 170. 
 
 REPLEVIN OF A PERSON. 
 
 1. Since the R. S. of 1841 went into effect, the writ de homine re- 
 plcffiando does not apply to cases of persons held under a writ or war- 
 rant, however defective, issuing from any court, under color of law. iVa- 
 son v. Staples, xltiii. 123. 
 
 2. The plaintiff was arrested on an execution and gave a six months' 
 bond. The last day of the six months was Sunday. He commenced his 
 
464 REVIEW. 
 
 disclosure on Saturday previous, but the proceedings not being completed, 
 the justices adjourned to meet at the jail on the following Monday. Be- 
 fore the expiration of the six months, the debtor, to save a breach of the 
 bond, voluntarily surrendered himself, and went into jail. He was allow- 
 ed to take the poor debtor oath, on said Monday, by the justices, who 
 gave him a certificate thereof, by force of which he demanded his release 
 of the keeper of the jail, which being refused, he brought an action of 
 personal replevin against the jailer. Held, that the action could not be 
 maintained ; and that the defendant have judgment for a redelivery of the 
 body of the plaintifij to be disposed of as the law provides. Garland v. 
 Williams, xlix. 16. 
 
 EESCISSIOK 
 
 See Action, 37. Assumpsit, 28. Conteact, 24, 25, 26. Sale, 24, 25, 
 Fraud, 17. Infant, 6, 7. School District, 17. Set-off, 4. 
 
 RESERVATIOlvr. 
 See Deed, 37, 39, 40, 41, 42, 43, 44, 46, 47, 48, 49. 
 
 RESERVED LANDS. 
 See Land Agent, &c. 
 
 REVERSION. 
 See Betterments, 2. Case, 10. Condition, 11. 
 
 REVIEW. 
 
 1. Upon hearing of a petition for review whene facts are presented ai 
 newly discovered evidence, which, if introduced at the trial upon the 
 original action, should be passed upon by the jury, and which would be 
 sufficient to sustain a verdict for the petitioner, it seems that a review 
 should be granted. Dwinel v. Godfrey, xxiv. 65. 
 
REVIEW. 465 
 
 2. There is no statute in direct terms in our State providing that one of 
 severaljointplaintifFs or defendants may petition for a review of the orig- 
 inal action. JVbwell v. /Sanborn, xliv. 80. ( Vide Public Laws of 1864, 
 c. 268, § 5.) 
 
 3. But where the petitioner, in review, being one of several joint defend- 
 ants, defaulted in the original suit, files a bond of indemnity against dam- 
 ages and costs, it may be a sufficient protection to his associates to en- 
 title him to a wi'it of review. JVbioell v. /Sanborn, xuv. 80. 
 
 4 Where a bond was given under R. S. of 1841, c. 123, § 8, and c. 
 124, § 13, on application for a review and stay of execution, conditioned 
 that the obligors should pay the first judgment, "if such shall be the 
 final judgment on review," and the verdict on review was for increased 
 damages, and the court rendered judgment against the original defend- 
 ant for the excess, and for costs of review, all of which he paid, but did 
 not pay the original judgment, ITeld, in a suit on the bond, that the 
 judgment on review was, in effect, though not in terms, an affirmation of 
 the original judgment, and a refusal to pay the latter was a breach of the 
 conditions of the bond. Crehore v. I'ike, xlvii. 435. 
 
 5. It seems that under the statutes, the bond did not cover the judg- 
 ment in review for the excess and costs. Crehore v. Pike, xlvii. 435. 
 
 6. On suggestion that the excess of the second verdict over the first 
 consisted of accruing interest, the court, unless the parties agree, will re- 
 fer it to a judge at nisi prius, to determine what part of the excess was 
 interest, if any, and to make an equitable deduction from the interest to 
 be recovered in the suit on the bond. Crehore v. Pike, xlvii. 435. 
 
 7. Upon a writ of review, the former judgment cannot be reversed, 
 in whole or in part ; but if wrong, the plaintiff in review will have judg- 
 ment to recover back the money erroneously recovered in the former suit; 
 or, if right, the defendant in review will recover his costs of review, and 
 may execute his former judgment, if not already satisfied. Curtis v. 
 Curtis, xLvn. 525. Dyer v. Wilbur, xlviii. 287. 
 
 8. Where the original judgment has been satisfied by a levy upon real 
 estate, the levy is valid, and conveys a good title, although afterwards, 
 on review, the original defendant recovers a judgment against the orig- 
 inal plaintiff for a sum equal to the whole amount of the former judg- 
 ment. Curtis V. Curtis, xlvii. 525. (But see Public Laws of 1864, c. 
 268, § 4.) 
 
 9. A review is not a writ of error, by which a judgment is reversed, 
 nullified, and rendered void ab initio. Dyer v. Wilbur, xlviii. 287. 
 
 10. It is a remedial process to enable a party to correct wholly or in 
 part a former judgment by means of a new one. Dyer v. Wilbur, xLvni. 
 
 ■ 287. 
 
 11. Where final judgment has been rendered on a petition for parti- 
 tion, and then a review granted, and precisely the same partition made 
 and judgment rendered on the review as originally, the former judgment 
 is not affected by the proceedings in review. Dyer v. Wilbur, xLvin, 
 287. 
 
 12. Review is the proper remedy to correct a mistake in the computa- 
 tion of interest, or in computing the amount for which judgment is ren- 
 dered. Zovell V. Kelley, XLvm. 263. 
 
 13. Upon a petition for review under c, 94 of the Public Laws of 
 
 30 
 
466 RiEviEw. 
 
 1859, the finding of the judge at nisi prius, on the questions of fact, is 
 conclusive, and it cannot be revised on exceptions. /Sturtevant v. Han- 
 dall, xLix. 446. 
 
 14. Chapter 94, of the Public Laws of 1859 should be construed as 
 prospective. It vvas thus additional, cumulative, and prospective for 
 a period of six months atter its passage, when its period of limitation 
 expired. Atkinson Y.Dunlap, l. 111. 
 
 15. At the hearing on a petition for review, for newly discovered ev- 
 idence, a witness will be confined to the matter set forth in the petition, 
 to be proved by him ; and cannot testify as to other liacts set forth^ 
 which are to be proved by other witnesses therein named. (R. S. e. 89,, 
 § 3.) Berry v. Ziisherness, l. 118. 
 
 16. Nor will the petitioner be allowed on such healing to testify to 
 facts known to hmi, at the time of the trial, from testifying to which the 
 rules of evidence then precluded hira, although, by statute, a party is 
 now made a competent witness. Berry v. Lisherness, l. 118. 
 
 17. A party has an undoubted right to have his ease tried by the ap- 
 plication of the rules of law and evidence existing and regulating such 
 cases, at the time of trial ; but after his rights have been thus ascertained 
 and settled, he cannot have a new trial, on the ground, that a change 
 has been subsequently made, by the legislature, in the law or in the rules 
 of evidence applicable to his case. Berry v. lAsherness, l. 118. 
 
 18. Upon the review of an action brought by a married woman after 
 the action was barred bj' the statute of limitations, the court, while giv- 
 ing judgment against the oiiginal plaintiff for debt, costs, and interest 
 thereon, will not, under the statute of 1864, c. 268, enter judgment "for 
 such further sum as the party prevailing in review would have been en- 
 titled to recover, as costs, in the original cause," unless it be made to ap- 
 pear that justice requires such judgment. Brown v. Vousens, li. 301. 
 
 19. Where a review is granted, in cases in which the petitioner is not 
 entitled to it as a matter of right, it may be done on such terms and 
 conditions as the court may deem reasonable. Jones v. Eaton, li. 386. 
 
 20. If a review is granted unless the defendant in review performs 
 certain acts, performance of the condition may be pleaded in bar of the 
 action of review. Jones v. Eaton, li. 386. 
 
 21. A review will not be granted in a case which has been refeired, 
 on the mere ground that the petitioner's counsel was not present, when 
 the report of the referee was offered and accepted in court, although it 
 was not offered until after the second day of the term. Crooker v. Bam- 
 dall, Liii. 355. 
 
 22. A review will not be granted on the ground of newly discovered 
 evidence, when it does not appear that the evidence is admissible, or that 
 it is not cumulative. Crooker v. Randall, Liii. 355. 
 
 23. Before a review will be granted on the ground of newly discov- 
 ered evidence, the court must be satisfied from the evidence introduced 
 in support of the petition, that the evidence claimed as newly discovered 
 could not have been obtained by diligent inquiry, prior to the trial. At- 
 kinson v. Conner, lvi. 546. 
 
 21. So the court must be satisfied of the fact of surprise, before it will 
 grant a review upon that ground. Atkinson v. Conner, lvi. 546. 
 
REWARD. REVISED STATUTES. RIPARIAN RIGHTS. 467 
 
 25. When, from the nature of the issue, a party has reasonable cause 
 to expect that a certain point will be controverted, and when, by propei' 
 diligence, he might have obtained the testimony to substantiate the! 
 point, he cannot be said to be taken by surprise by the controverting 
 testimony. Atkinson v. Cornier, lvi. 546. 
 
 REWARD. 
 
 The inhabitants of a town cannot be legally assessed to pay a reward 
 offered by the vote of the town for the apprehension and conviction of 
 a person who has committed a murder therein. Gale v. South Berwick, 
 LI. 174. 
 
 REVISED STATUTES. 
 
 In the revision of the statutes of 1857, the principal design was " to 
 revise, collate, and arrange the public laws," and, in revising, " to con- 
 dense, so far as practicable," — and a mere change of phraseology should 
 not be deemed a change of tlie law, unless there was an evident inten- 
 tion, in the legislature, to work a change. Hughes v. Farrar, xlt. 72. 
 
 RIPARIAN RIGHTS. 
 
 1. Riparian proprietors on a stream have a right to the natural flow of 
 the water in its natural current, without diminution or obstructions in- 
 jurious to them except so far as other parties have obtained permanent 
 rights by grant or prescription. Pillsbury v. Moore, xliv. 154. Yeazie 
 V. Bwind, l. 479. Clark v. Rockland W. P. Co-, Ln. 68. 
 
 2. Every proprietor of land on the banks of a river or stream has 
 naturally an equal right to the use of the water ; and this right to use, 
 implies a right to control, detain, and even diminish the volume of the 
 water, but only to a reasonable extent. Davis v. Getchell, i,. 602. Davis 
 V. Winslow, LI. 264. Clark v. Jtockland W. P. Co., m. 68. 
 
 3. What is a reasonable detention, depends upon the size of the 
 stream, as well as upon the uses to which it is subservient, as the deten- 
 tion must necessarily be sufficient to accumulate the head of water requi- 
 site for practical use. Davis v. Getchell, l. 602. Davis v. Winslow, u. 
 264. 
 
 4. The right of detention is not limited to time necessary for repairs 
 or to extraordinary occasions, but applies to the ordinary use of such 
 streams, pi-ovided it be not an unreasonable use or detention. Davis v. 
 Getchell, l. 602. Davis v. Winslow, li. 264. 
 
468 ROCKLAND WATER POWER COMPANY. 
 
 5. In determining the question of reasonable use, regard must be had 
 to the subject-matter of the use ; the occasion and manner of its appli- 
 cation, — its object, extent, necessity, and duration, and the established 
 usage of the country. Davis v. Winslow, li. 264. 
 
 6. Under the mill act, riparian proprietors, who are owners of mill- 
 sites, may raise a head of water, by the construction of dams, on their 
 own lands, across streams not navigable, for the purpose of working their 
 mills, subject only to the prior and paramount rights of others. Clark 
 V. Rockland W. P Co., lii. 68. 
 
 7. And the head of water thus raised may be detained a reasonable 
 time for the beneficial use of such mills. But the flow of the water can- 
 not be permanently obstructed, nor diverted by such dams, to the injury 
 of the proprietors below, nor can the water be used capriciously to their 
 injury. Clark v. Rockland W. JP. Co., lii. 68. 
 
 See Mills, 1-27. 
 
 ROCKLAND WATER POWER COMPANY. 
 
 1. Chapter 381 of the Special Laws of 1860, provides that the de- 
 fendants may convey, " by pipes sunk below the bottom of its outlet," 
 Mill river, " the water of Tolman's pond, to the city of Rockland, and 
 take and hold any land," &c., necessary for the purpose ; but that noth- 
 ing in the act shall be construed to prevent the owners of mills, on Mill 
 river, from using the water thereof in the same manner as they have 
 heretofore done ; and gives said mill-owners a remedy by complaint to 
 the S. J. court, final judgment thereon to be the measure of yearly dam- 
 ages, until a new complaint is made. Clark v. Rockland W. -P. Co., 
 LII. 68. 
 
 2. In the trial of such complaint against said company, for diverting 
 the water by said pipes, and withholding it by the rebuilding and raising 
 of an ancient mill-dam at the outlet of said pond, and which the de- 
 fendants had purchased since they were incorporated ; it is not compe- 
 tent for the defendants to prove, by a witness, " that fourteen years ago, 
 he owned a clothing-mill and other machinery below the complainant's, 
 between which and the witness' mill another stream united with Mill 
 river ; that the water of said river ran to waste at his dam, 'n the spring 
 freshets, for the want of sufficient m^ans to retain it at Tolman's pond 
 for summer and fall use ; that there was not enough left for milling pur- 
 poses during the summer and fall months ; and therefore he could not 
 run his mill much of the time during those seasons." Clark v. Rockland 
 
 W. F Co., LiL 68. 
 
 3. Nor is it competent for the defendants to prove that, in Mill river, 
 below where said other stream unites with it, less water, that could be 
 made useful to mills on the river, ran prior to the time when the defend- 
 ants commenced their operations, than during the subsequent period, to 
 the present time. Clark v. Rockland W. P. Co., lii. 68. 
 
 4. It is not competent for a witness to give his opinion of the value 
 of a mill, after having testified, that he had resided many years, and 
 
RULES OF COURT. 469 
 
 owned real estate in the -vicinity of the mill ; had been assessor of the 
 town ; that he was something of a judge of real estate in that vicinity; 
 that he had no special knowledge of the value of mills on that stream ; 
 and that he had never bought, sold, owned, or operated a mill. Clark v. 
 Rockland W. P- Co., lii. 68. 
 
 5. The rights of the proprietors of the defendant's mill cannot be 
 measured by the amount of grain they might have to grind within a 
 given time, nor by the peculiar structure of their water-wheels ; but by 
 the natural flow of the stream as modified by grant or prescription. 
 Clark V. Bockland W. P. Co., lii. 68. 
 
 6. The defendants have no authority, under their act of incoiTioration, 
 to operate a grist-mill as an independent business. Clark v. Bockland 
 
 W. P. Co., LII. 68. 
 
 7. By said act, the right to recover damages by complaint is given to 
 the mill-owners on the stream, only in case the corporation, in the exer- 
 cise of the powers therein granted, shall damage the mill privileges on 
 the river. Clark v. Bockland W. P. Co., lii. 68. 
 
 8. If the corporation damaged the mill-owrfers in any other manner 
 than in the exercise of the powers conferred in the act, by unreasonably 
 or unlawfully diverting or detaining the water of the river, the remedy of 
 the mill-owners would be by some other form of action. Clark v. Bock- 
 land W. P. Co., LII. 68. 
 
 9. Damages in the trial of such complaint. Clark v. Bockland W. P. 
 Co., LII. 68. 
 
 RULES OF COURT. 
 
 1. By the rules of this court, the defendant is entitled to a specifica- 
 tion of the matters to be proved in support of a money count. Perkins 
 V. Cushman, xliv. 484. 
 
 2. The 28th rule of the court " for practice in chancery," authorizing 
 single judges, in cases of contempt by refasing to obey any order or de- 
 cree of the court, to issue a writ of attachment "returnable at the next 
 term," is to be construed as meaning the next term in the county where 
 the bill is pending, and gives no jurisdiction to the court in any other 
 county, and no special jurisdiction to the judge who may issue it in 
 chambers, as to any farther action upon it. And. & Ken. B. B. Go. v. 
 And. B. B. Co., XLLX. 392. 
 
 See Akbiteation, 28. 
 Deposition, 6, 13. 
 Equity, 106, 108. 
 EviDENce, 13. 
 Exceptions. 
 Pleading, 77. 
 Practice, 1, 103-107. 
 
470 SALE. 
 
 SALE. 
 
 I. DELIVEBT. 
 
 n. CONSTRUCTION. 
 
 III. WHEN VOIDABLE. 
 
 IV. SALE UNDER LEGAL PROCESS. 
 V. EVIDENCE. 
 
 J. DELIVERY. 
 
 1. A sale without delivery is valid as against the vendor, and the title 
 will pass from the true owner, though the goods at the time of sale are 
 tortiously possessed by a third party. Webber v. Davis, xliv. 147. 
 
 2. In a contract for the sale of goods, when the price, time, and man- 
 ner of payment, and time and manner of delivery are agreed upon, de- 
 livery will, in the absence of all other facts, pass the title. Motchkiss v. 
 JTunt, XLix. 213. 
 
 3. But when there is an express or implied agreement that the title is 
 not to vest until payment or delivery of notes, a delivery will not pass 
 the title until the condition is performed. Hotchkiss v. Hunt, xlix. 213. 
 
 4. When, by the terms of an agreement of sale, the article sold is to 
 remain in the possession of the vendor, for a npecific time or purpose, as 
 part of the consideration, and the sale is otherwise complete, the posses- 
 sion of the vendor will be considered that of the vendee, and the delivery 
 will be sufficient to pass the title, even as against subsequent purchasers. 
 Hotchkiss V. Hunt, xlix. 213. 
 
 5. As against one having a ten years' continued possession of a chattel 
 under claim of ownership, a delivery by the true owner will not be nec- 
 essary to vest title in the vendee. Movlton v. Lawrence, l. 100. 
 
 6. A verbal agreement for the sale of personal property, for thirty or 
 more dollars, is valid, when a part of the property has been delivered to 
 and accepted by the purchaser under the agreement, although such de- 
 livery and acceptance took place several days after the making of the 
 agreement. Bush v. Holmes, liii. 417. 
 
 7. Damages for the non-delivery of a portion of the property are the 
 difference between the price agreed and the value at the time of refusal. 
 Hush V. Holmes, liii. 417. 
 
 See Assumpsit, 52, 54. 
 
 II. CONSTRUCTION. 
 
 (a) Upon coNDiTi03>r. 
 
 (t) When pboperty passes. 
 
 (c) Validity of sale and liability of paeties. 
 
 (d) "Wajbeanty. 
 
 (a) Upon condition. 
 
 8. B. took possession of a horse owned by himself and A. in common, 
 under an agreement to return the next week with the horse, and either 
 buy A.'s half or sell his half to A., but failed to meet his agreement. Held^ 
 
SALE. 
 
 471 
 
 that there was no sale or purchase, but a mere verbal agreement to trade. 
 Whitmore v. Alley, xlvi. 428. 
 
 9. On Jan. 17, 1854, one F. gave his negotiable note for eighty-five 
 dollars on six months to the plaintiff for a yoke of oxon. The note stip- 
 ulated that the " oxen to remain " the pliiiiitiff 's " until this note is paid." 
 On the following $50, and on Sept. 7, 1855, $10 were paid and in- 
 dorsed on the note. F. sold the oxen to the defendant on whom the 
 plaintiff, after suing and securing the note, made a demand for the oxen, 
 and brought trover therefor. Hdd, that the property in the oxen did 
 not pass from the plaintiff. Rawson v. Tuel, xlvii. 506. 
 
 10. The plaintiff bargained and delivered a pair of oxen in February, 
 for 1120, to be paid for in September following, " the oxen to i-emain the 
 plaintiff's property nntil paid for." Thereafterwards the vendee sent to 
 the plaintiff $60 in part-payment, and then sold the oxen to the defend- 
 ant, who converted them. Held, that in trover for the value of the cat- 
 tle the defendant was entitled to no deduction for the partial payment. 
 Brown v. Haynes, m. 578. 
 
 11. If A. negotiate for the purchase of personal property, and, at his 
 request, B. pays for it upon an agreement that he is to hold it as his un- 
 til he is repaid, and the property is delivered to them under the agree- 
 ment, the title will vest in B. Tainter v. Lombard, liii. 369. 
 
 12. Where a mare, being with foal, is sold on condition that she is to 
 "remain the property of the vendor until paid for," the vendor continues 
 to own the colt subsequently foaled, until 2)erformance of the conditions. 
 Allen V. Delano, lv. 113. 
 
 13. The bargainee agreed to pay a specified price for certain chattels 
 then in his possession, belonging to the bargainor, and to pay for certain 
 supplies to be furnished in a lumbering operation, by cutting and haul- 
 ing logs from certain lands of the bargainor at a stated price per M. feet, 
 the bargainor " to retain entire ownership of the chattels until he re- 
 ceived entire payment of the same." Upon a settlement of the lumber- 
 ing operation, made by deducting the aggregate price of the chattels and 
 supplies from that of cutting and hauling the lumber, a balance of $684 
 was found against the bargainor, which he paid. Subsequently it was 
 discovered that the balance thus fonnd and paid was $250 too much. In 
 an action of replevin for the chattels brought by the bargainee's vendees 
 against the bargainor's agent who had taken possession of them, Held, 
 that the bargainor could not apply the amount of the error to the non- 
 payment of the price of the chattels, and thereby retain ownership of 
 them. Hodgkins v. Dennett, lv. 559. 
 
 14. A contract of sale between a vendor in another State, and a pur- 
 chaser here, in wiiich it is stipulated that, after the goods are delivered 
 here, the purchaser need not have them nor pay for them, unless they 
 suit him, is not complete until after the delivery is made and the pur- 
 chaser has an opportunity to make his election. Wilson v. Strattpn, 
 XLVII. 120. 
 
 (c) Validity of sale and liability of parties. 
 
 15. Where a contract is fully executed on the sabbath and the prop- 
 erty passes, the sale is nevertheless valid. Greene v. Godfrey, xliv. 25. 
 
 16. Where a stock of goods is sold at a distinct and separate price 
 
472 SALE. 
 
 for each article, some of which are intoxicating liquors, the sale for the 
 other articles is valid. Boydw. Eaton^ xliv. 51. 
 
 17. Where the option is with the party receiving, to pay for or return 
 the goods received, such alternative agreement amounts to a sale ; aliter, 
 if, at the time of receiving, he admits the title to be in the other party, 
 so to remain until fully paid for. Crocker v. Ghdlifer, xliv. 491. 
 
 18. A travehng peddler (without a license) when not engaged in 
 that business, may make a valid sale and delivery of goods. JBrett v. 
 Marston, xlv. 401. 
 
 19. When parties to a contract of a sale of logs mutually select a 
 sworn surveyor to determine the quantity (Jf each particular quality 
 thereof, who thereupon makes a survey and renders his certificate 
 thereof, his decision of the subject-matter is, in the absence of fraud and 
 any unfair practices by the party claiming to uphold it, conclusive upon 
 the parties. Berry v. Meed, liii. 487. 
 
 See CoKPOEATiON, 1. 
 
 (d) Warranty. 
 
 20. The vendor in possession of personal property impliedly warrants 
 the title to the thing sold. Thurston v. Spratt, ui. 202. 
 
 21. A creditor, induced by the fraud and deceit of his debtor to ac- 
 cept a certain article in payment and discharge of his account, having 
 afterward discovered the fraud, brought assumpsit on his account without 
 offering to return the article named. Held, that the article having been 
 received in payment of the demand, and not for an indefinite sum to be 
 thereafter ascertained, that an action could be maintained ; but there 
 being no rescision, the remedy was on tlie defendant's warranty, if any 
 was made, or on the case for damages sustained by reason of the fraudu- 
 lent misrepresentations. Garland v. Spencer, xlvi. 528. 
 
 III. "WHEN VOIDABLE. 
 
 (a) By VBNDOK. 
 
 (b) Bt vendee. 
 
 (a) J3y vendor. 
 
 22. Where the assignee, in a bill of lading, sells the goods before their 
 arrival, and assigns the bill of lading to the vendee, if the purchase is 
 made in good faith, and in the usual course of business, the right of the 
 consignor to stop the goods in transitu is thereby devested, notwith- 
 standing the consideration of the sale was the payment of an antecedent 
 debt. Lee v. Kimball, xlv. 172. 
 
 23. It seems, that such an assignment of the bill of lading as collat- 
 eral security for an antecedent debt, could not devest the right of the 
 consignor. Bee Y.Kimball, xlv. 172. 
 
 (b) By the vendee. 
 
 24. The fact that the article delivered is not in quality what was con- 
 tracted for, will not excuse the vendee fi'om taking the necessary steps 
 to rescind the sale. Cutler v. Gilbreth, liii. 176. 
 
SAVINGS BANK. 473 
 
 25. A party wjio would rescind a sale must use proper diligence. 
 Outler V. Gilbreth, liii. 176. 
 
 IV. SALE UNDER LEGAL PROCESS. 
 
 26. The purchaser of goods sold by an officer on execution will ac- 
 quire title thereto, notwithstanding the officer, in his proceedings, has 
 not conformed strictly to the requirements of the statute. Ludden v. 
 Kincaid, xlv. 411. May v. Thomas, xltiii. 397. 
 
 27. Where a trader's goods, such as are usually kept in a variety store, 
 were attached on mesne process, and sold, by consent of parties, not- 
 withstanding the officer sold them in gross, contrary to the intent of the 
 statute requiring him "in his return, to describe particularly the goods 
 sold, and the price, at which each article or lot, describing it, was sold," 
 — such sale will pass the title to a honafide purchaser. May v. Thomas, 
 XLViii. 397. 
 
 28. A sale of real or personal property on execution is not vacated by 
 a reversal of the judgment on which it issued. Stinson v. Ross, li. 556. 
 
 29. Aliter, in case of a levy. Bryant v. Fairfield, li. 149. Stinson 
 V. Boss, LI. 556. 
 
 V. EVIDENCE. 
 
 30. The possession of a chattel continued for ten years under claim of 
 ownership, will not, of itself, vest title therein; but it is evidence tend- 
 ing to show title, but liable to be controlled by other proof Moulton v. 
 Lawrence, l. 100. 
 
 31. In assumpsit for logs sold, a letter written long after the sale by 
 the defendant to the plaintiff, complaining of the quality of the logs, is 
 not admissible on the part of the defence. Berry v. Beed, liii. 487. 
 
 SAVINGS BANKS. 
 
 1. A savings bank is not liable to be taxed for national bank-stock or 
 city bonds in which it has invested moneys received on deposit. Augusta 
 Savings Bank v. Augusta, lvi. 176. 
 
 2. Officers of savings institutions are to be held to the exercise of rea- 
 sonable care and diligence. Sullivan v. Lewiston Inst, for Savings, 
 LVL 507. 
 
 3. In paying money upon the presentment of a deposit book, reasona- 
 ble care and diligence do not necessarily require the disbursing officer of 
 a savings institution to demand strict proof of the identity of the deposi- 
 tor. Sullivan v. Bewiston Inst, for Savings, lvi. 507. 
 
 4. The plaintiff made a deposit in the defendant institution, received 
 a book of deposit, containing a copy of its by-laws which, in accordance 
 
474 SCHOOL AGENT. SCHOOL DISTKICT. 
 
 ■with their provisions, he thereupon "subsciibed, and. thereby signified 
 his assent to," and which provided that " all deposits shall be entered ip 
 a book to be given the depositor, which shall be his voucher and the evi- 
 dence of his property in the institution," and that "the money of any 
 depositor may be drawn either personally, or by witnessed order, in writ- 
 ing of the depositor, but no moneys hall be paid to any person without 
 the production of the originnl book, that such payment may be entered 
 therein," and that " the institution will not be responsible for loss sus- 
 ■ tained when a depositor hns not given notice of his book being stolen or 
 lost, if such book be paid in whole or in part on presentment." Subse- 
 quently the depositor's book was stolen, presented to, and paid by the dis- 
 bursing officer of the institution in good faith. In an action by the de- 
 positor to recover the deposit. Held, that if the disbursing officer, using 
 reasonable care and diligence, but lacking present means of identifying 
 the depositor, pay hona fidi on presentation of the book by one appar- 
 ently in the lawful possession of it as the owner thereof, the institution 
 has a right to rely upon the contract of the depositor safely to keep the 
 evidence of his claim, or make known its loss before it is presented for 
 payment. Sullivan v. JLewiston Inst, for Savings, lvi. 507. 
 
 SCHOOL AGENT. 
 
 1. In an action under R. S. of 1857, c. 11, § 54, against the agent of 
 a school district, for money in his hands unexpended, his objection to the 
 maintenance of the suit, that it does not appear that he took the required 
 oath as agent, will not be sustained. School Dist. JSTo. 9 in Sear sporty. 
 Deshon, ll 454. 
 
 2. Where the district agent received money, which by the statute was 
 to be appropriated for certain definite and specific purposes, he cannot 
 retain any balance on account of personal services rendered. School 
 Dist. No. 9 in Searsport v. Deshon, li. 454. 
 
 SCHOOL DISTRICT. 
 
 1. As between a school district and a stranger, the possession of their 
 records by the clerk is the possession of the district. Sanford v. Lord, 
 XLiv. 374. 
 
 2. By Pub. Laws of 1850, c. 193, an agent of a school district is not 
 authorized to call a district meeting upon his own motion, without the 
 written application of three or more legal voters of the district. Sanr 
 ford V. Lord, xliv. 374. 
 
 3. An application to the selectmen to call a meeting of the district 
 for the choice of officers, bearing date before the annual town meeting, 
 is premature, and all action under it ,void. Sanford v. Lord, xliv. 374. 
 
 4. Chapter 243 of the Pub. Laws of 1852 (R. S. of 1857, c. 11, § 26), 
 
SCHOOL DISTRICT. 475 
 
 was not so far repealed by § 1, c. 104, of the Pub. Laws of 1854 (R. S. 
 pf 1857, e. 11, § 1), as to take away from school districts the authority to 
 unite, which was conferred by it. Call v. Chadbourne, xlvi. 206. 
 
 5. Section 3, art. 2, c. 193 of the Pub. Laws of 1850 (R. S. of 1857, c. 
 11, § 15), concerning the legal presumption of the organization of a 
 school district after a year's exercise of the franchise and privileges of a 
 district, was intended to overcome all technical objections, on account of 
 irregularities and informalities of proceedings in the organization of a 
 district. But such presumption is not C(>nclusive. Call v. Chadbourne, 
 XLVI. 206. Collins v. School Dist. JVo. 7 in Liberty, lii. 522. 
 
 6. The vote of a town to divide a school district is void, where there 
 had been no written statement of the facts submitted by the selectmen 
 as the statute requires. (R. S., 185.7, c. 11, § l.) School Dist. No. 1 in 
 Jackson v. Stearns, xlviii. 568. Allen v. Archer, xlix. 346. 
 
 7. An action lies against a school district for money collected for a 
 tax illegally assessed and paid under duress, where the collector has de- 
 posited it with the town treasurer, it being by statute subject to the 
 order of the district. Starbird v. School J)ist. No. 7 in Falmouth, ll 
 101. 
 
 8. Where there is no district agent, or he neglects or refuses to call a 
 district meeting, the selectmen are, by R. S. of 1857, c. 11, § 17, author- 
 ized to call it; but such vacancy or refusal must exist and be shown, to 
 render the proceedings of such meeting valid. Starbird v. School Dist. 
 No. 7 in Falmouth, li. 101. 
 
 9. A district has no right to take land under R. S. of 1857, c. 11, § 28, 
 for a school-house lot when the owner thereof refuses to sell, except on 
 payment or tender of the damages appraised. Storer v. Hobbs, iii. 144. 
 
 10. A tender, made after an action of trespass is brought against the 
 building committee, will be no justification for the defendants. Storer 
 V. Hobbs, LII. 144. 
 
 11. What acts are sufficient evidence of the exercise of the franchise 
 and privileges of a district to authorize the presumption that it has been 
 legally organized. Collins v. School Dist. No. 7 in Liberty, lii. 522. 
 
 12. The fact that an attempt to establish the district, confessedly abor- 
 tive, was made in 1853, is not sufficient to rebut the presumption arising 
 from the exercise of the franchise and privileges of a district by the de- 
 fendants for more than a year prior to 1856. Collins v. School Dist. No. 
 7 in Liberty, lii. 522. 
 
 13. In assumpsit, by the builder against a school district, to recover 
 pay for building a school-house and finding materials thai efor, the de- 
 fendants cannot object to absence of proof of a legal meeting to deter- 
 mine \ipon the building and the raising of the money therefor, unless 
 they have raised such objection by their specification of defense. Col- 
 lins V. School Dist. No. 7 in Liberty, lii. 522. 
 
 14. Where an order, drawn by the building committee upon the town 
 treasurer acting as treasurer of the district and accepted by the latter, 
 is indorsed to a third person, and an action is brought thereon in the 
 name of the payee for the benefit of the holder, the plaintiff may strike 
 pff the indorsement, and have judgment in his favor. Collins r. School 
 J)ist. No. 7 in Liberty, lii. 522. 
 
 16. By R. S, of 1857, c. 11, § 22, a school district, at any legal meet- 
 
476 SCIRE FACIAS. 
 
 ing called for the purpose, shall have power « to sell and dispose of any 
 school-house or other property, if necessary." School Dist. No. 6, in 
 Dresden v. ^tna Ins. Go., liv. 505. 
 
 16. A school district is the exclusive and final judge of the necessity 
 of the sale of its school-house. School Dist. JVb. 6 in Dresden v. uSUtna, 
 Ins. Co., LIV. 505. 
 
 17. If a school district would rescind a sale of its school-house, on the 
 ground of fraud between its selling committee and the purchasers, it 
 must at least offer to restore to the purchasers what was received from 
 them, Semble. School Dist. No. 6 in Dresden v. uEtna Ins. Co., xlit. 
 505. 
 
 See Constitutional Law, 28. 
 
 SCIRE FACIAS. 
 
 1. To scire facias upon a forfeited recognizance conditioned that the 
 principal would appear and answer to a certain indictment, it is no bar 
 that the principal defendant was subsequently arrested in another State, 
 and lodged in jail within this jurisdiction by virtue of the same indict- 
 ment upon which the recognizance was taken. Bat such facts may be 
 admissible on petition under R. S. of 1841, c. 169, § 17. State v. Bum- 
 ham,xi,iY. 278. 
 
 2. A surrender of the principal in court after a forfeiture of a recog- 
 nizance in a criminal case, before final judgment on scire /"acias, will not 
 release the sureties without payment of c'osts. State v. Burnham, xliv. 
 278. 
 
 3. Scire facias lies to obtain a writ of seisin of dower, where judg- 
 ment has been rendered, and the time for issuing such writ has expired, 
 
 Walker v. Oilman, xlv. 28. 
 
 4. Where one institutes dower and marries before entry of action, and 
 the defendant does not object to the non-joinder of the husband, the ob- 
 jection comes too late on scire facias founded on the judgment. Walker 
 V. Gilman, xlv. 28. 
 
 5. By Public Laws of 1848, c. 73, the wife may maintain scire facias 
 in her own name, or jointly with her husband. Walker v. Qilman, 
 XLV. 28. 
 
 6. Where a trustee, before the enactment of § 69, c. 86, R. S. of 1857, 
 had been charged on his disclosure in the original suit, the court may 
 permit or require him to disclose further, on scire facias against him. 
 McMillan v. Hobson, xlvi. 91. 
 
 7. After the record of a levy which proves to be invalid, the creditor's 
 only remedy is scire facias to revive the judgment. Grosvenor v. 
 Chesley, xlviii. 369. 
 
 8. A writ oi scire facias, which, after reciting a recognizance, declares 
 "all which appears of record, and said recognizance was duly returned to 
 our said court," &c., and farther alleges a default "as appears of record," 
 
SCRIP. — SEAL AND SEALED INSTEUMENTS. 477 
 
 shows sufficiently that the recognizance was returned to court and be- 
 came a matter of record. State v. Baker, l. 45. 
 
 9. A judgment, rendered in favor of the overseers of the poor of a 
 town on the complaint against certain kindred of a pauper under R. S. 
 of 1841, c. 32, cannot be served by scire facias in the name of the town. 
 Calais v. Bradford, li. 414. 
 
 10. If an execution be returned satisfied by a levy upon land mort- 
 gaged for more than its value, the judgment creditor may, on scire facias, 
 under R. S. of 1857, c. 76, §§ 17 and 18 have the levy set aside, and an 
 alias execution issued for the amount of the original judgment. Sec- 
 tion 27, in nowise aifects § 18, the remedies in the two sections being in- 
 dependent and consistent. Soule v. Buck, lv. 30. 
 
 See Amekdment, 2. 
 
 COEPOKATION, 48, 49. 
 
 SCRIP. 
 
 1. It was the duty of the treasurer of the respective cities and towns 
 along the Kennebec and Portland Railroad, to determine whether his 
 town or citjihad duly accepted c. 379 »f the Special Laws of 1850, and 
 whether all the preliminaries requisite to give validity to the scrip had 
 been complied with, before he issued it ; and his determination is con- 
 clusive. Augusta Bank v. Augusta, xlix. 507. 
 
 2. These questions cannot be raised on the trial of an action brought 
 upon the scrip. Augusta Bank v. Augusta, xlix. 507. 
 
 3. Chapter 248, §§ 1 and 2 of the PubUo Laws of 1856 is not limited 
 in its operations to bonds under seal, but applies to the scrip issued un- 
 der c. 379 of the Special Laws of 1850. Augusta Bank v. Augusta 
 XLIX. 507. 
 
 SEAL, AND SEALED INSTRUMENTS. 
 
 1. A policy of insurance, having thereon a printed impression of the 
 seal of the insurance company, is not to be regarded as a sealed instru- 
 ment. Mitchell V. Union L. Ins. Go. xlv. 104. 
 
 2. But under R. S. of 1857, c. 1, § 4, clause xv., bonds issued by a cor- 
 poration impressed with a seal, declared on their face to be sealed, and 
 accepted as such by the holders, are deemed to be under the corporate 
 seal. Woodman v. York & Cumb. B. B. Co., l. 549. 
 
 See Agency, 18. 
 
 Assumpsit, 18,20. 
 coepoeation, 10. 
 
478 SEISIN AND DISSEISSIN. 
 
 SEA-WEED. 
 See Deed, 40. 42, 91, 92. Easement, 5. Pkbsoription, 6, 8. 
 
 SEISIN AND DISSEISIN. 
 
 I. "WHAT IS A GOOD SEISIK 
 II. UISSEISIK 
 
 I. "WHAT IS A GOOD SEISIN. 
 
 1. Where a grantee is in possession of any part of the granted prem- 
 ises under a recorded deed, he is presumed to be in possession of the 
 whole, unless other possessions or facts show the contrary. Gardner v. 
 Gooch, xLviii. 487. Brach&tt v. Persons Unknown, liii. 228-2B8. 
 
 2. But this presumption is overcome by proof of an adverse posses- 
 sion, though it has not been continued twenty years. Gardner v. Gooch, 
 XLVIII. 487. 
 
 3. If a grantor of real estate be in possession When the deed is deliv- 
 ered, there can be no breach of the covenant of seisin. Witson v. Wid- 
 enham, li. 566. 
 
 4. If within twenty years after one is disseised of his land, the heirs of 
 the disseisee, or their agent thereunto duly authorized, legally enter up- 
 on the premises, it will purge the disseisin and vest the actual seisin in 
 those who have the right. Peabody v. Hewett, lii. 33. 
 
 5. The mere going upon the land will not always constitute a legal 
 entry ; but if the disseisee, or his- duly authorized agent, go upon the 
 land, with the intent of making an entry, and, then and there, declare to 
 the disseisor such purpose, it will be a legal entry. Peabody v. Hewett, 
 lii. 33. 
 
 6. If such entry be made by one of the heirs of the disseisee, or by 
 more than one but less than hU ; or by the authorized agent of one or 
 more but less than all, it will be presumed, in the absence of evidence to 
 the contrary, to be in maintenance of the right of all. Peabody v. Hew- 
 ett, lii. 33. 
 
 7. In a petition for partition, a sole seisin in the respondent may be 
 established by a possession commenced twenty years before the trial, 
 although less than twenty years before the commencement of the suit. 
 Brackett v. Persons XTrJinown, liii. 238. 
 
 8. A conveyance being void for fraud, the title iS' regarded as remaiil- 
 ing the fraudulent grantor so far as creditors are concerned, and a judg- 
 ment creditor, by a levy, acquires such seisin as enables him to main- 
 tain a real action against the fraudulent grantor. Marston v. Marston, 
 Liv. 476. 
 
 9. By the levy of an execution upon the land ctf a judgment debtor, 
 and the delivery of seisin to the creditor, the possession of the tenant, 
 
SEISIN AND DISSEISIN. 479 
 
 even if adverse to the creditor, tliereby became interrupted. Clark y. 
 Pratt, Lv. 546. 
 
 10. The seisin of the creditor, thus obtained, will be presumed to con- 
 tinue in him until proof to the contrary is shown. Clark v. Fratt, lv. 
 546. 
 
 See Execution, 94-97. 
 
 Forcible Entbt, &g., 11. 
 
 n. disseisin. 
 
 (a) What ts disseisik, 
 
 (b) Eights of disseisor and disseisee. 
 
 (c) Effects of disseisin. 
 
 (a) What is disseisin. 
 
 11. If one tenant in common takes actual and exclusive possession of 
 the entire estate, under a deed of the whole, duly acknowledged and re- 
 corded, from one who has no title, and receives the rents and profits, de- 
 nying the right of any other person in the land, such possession is a dis- 
 seisin of his co-tenants. Thornton v. York Bank, xlv. 158. 
 
 12. When such possession is apparently exclusive and adverse, the 
 presumption of disseisin may be rebutted by evidence showing that the 
 rights of the co-tenants have been admitted or acknowledged. Thorn- 
 ton V. York Bank, xlv. 158. 
 
 13. R. S. of 1857, c. 104, § 38 applies to all land alike, though it is com- 
 petent for the jury to look at the position of the land, the nature of the 
 soil, and its productions, in connection with all the acts done upon it, in 
 determining whether there has been in fat-t a possession and improve- 
 ment, open, notorious, exclusive, and comporting with the usual manage- 
 ment of a farm by the owner. Gardner v. Q-ooch, XLvni. 487. 
 
 14. The State cannot be disseised. Cary Y.Whitney, xlviii. 516. 
 
 15. After an acquiesence by all parties in a line established by mutual 
 agreement and survey, for a length of time sufficient to give title by disseis- 
 in, it will not be disturbed, although the occupation has not been such as, 
 aside from the marking of the line, would amount to a continuous dis- 
 seisin for the whole time. Fought v. Holway, l. 24. 
 
 16. Exclusive occupation under a mutual agreement upon a bouiidaiy 
 line, though it be erroneous, is such possession as is requisite to consti- 
 tute disseisin. Abbott v. Abbott, li. 575. 
 
 17. By R. S. of 1857, c. 105, § 10, to constitute a disseisin ... it shall not 
 be necessary for the lands disseised to be surrounded with fences, or ren- 
 dered inaccessible by water; but it shall be sufficient, if the possession, 
 occupation, and improvement are open, notorious, and comporting with 
 the ordinary management of a farm, although that part composing the 
 woodland is not so enclosed. Eaton v. Jacobs, m. 445. J3eal v. Gor- 
 don, lv. 482. Worcester v. Lord, lvi. 265. 
 
 18. It was not the intention to make the "possession, occupation, and 
 improvements," therein described, conclusive evidence of disseisin, and 
 a bar to the right of the true owner, but simply " sufficient " evidence of 
 
480 SET-OFF. 
 
 the adverse intent of the party holding it, in the absence of other evi- 
 dence establishing its true nature. Worcester v. Zord, lvi. 265. 
 
 19. What testimony will overcome such sufficient evidence, and estab- 
 lish the true character of the possession. Worcester v. Zord, lvi. 265. 
 
 20. To constitute disseisin the possession must be adverse in its char- 
 acter, importing a denial of the true owner's title in the specific parcel of 
 land claimed. Worcester v. Zord, lvi. 265. Abbott v. Abbott, li. 575. 
 
 21. One claimingtitleonly to the real. line capable of being ascertained, 
 cannot, by ignorantly having possession up to another line, acquire a title 
 by disseisin to the land lying between the two which he does not inten- 
 tionally claim. Worcester v. Zord, lvi. 265. Abbott v. Abbott, li. 575. 
 
 See FoECiBLE Entbt, &c., 11. 
 
 (b) nights of disseisor and disseisee. 
 
 22. Although the owner of land, while disseised, cannot maintain tres- 
 pass against the disseisor, he may, after re-entry, for trespasses subse- 
 quently committed. Abbott v. Abbott, li. 675. 
 
 23. Where a person has executed a contract for the conveyance of 
 premises in controversy in a real action, the party holding such contract, 
 possesses the premises described therein in subjection to the one having 
 the title. Peahody v. H&wett, lii. 33. 
 
 24. Where the land disseised contained a quarry of granite undisclosed 
 until the operations of the tenant, the tenant has no legal right to re- 
 quire the presiding judge to instruct the jury, that in estimating what 
 would have been the value of the premises if no buildings had been 
 erected, or improvements made, or waste committed, they should find 
 what the value would have been without that knowledge of the quality 
 and value of the granite which the tenant's improvements alone disclosed, 
 by opening the quarries and working the granite. Peahody v. Hewett, 
 lii. 33. 
 
 (c) Effect of disseisin. 
 
 25. Twenty years' adverse occupation of real estate under recorded 
 deeds is an insuperable bar to the maintainance of a petition for parti- 
 tion whatever may be the legal title of the petitioners. Brackett v. Per- 
 sons Unknown, lul 228. 
 
 SET-OFF. 
 
 I. WHAT CLAIMS MAT BE SET OFF, AND "WHEK. 
 II. HOW, AND WHEN TO BE PRESENTED AND ALLOWED, 
 in. SET-OFF OF JUDGMENTS AND EXECUTIONS. 
 
 • I. WHAT CLAIMS MAY BE SET OFF, AND WHEN. 
 
 1. In an action by one town against another for supplies furnished a 
 pauper, the defendant town cannot file in set-off a demand against the 
 
SET-OFF. 481 
 
 plaintiff town for the support of paupers belonging to the latter. -4m- 
 gusta V. Chelsea, xlvii. 367. 
 
 2. An administrator cannot set-off any claim he may have in his offi- 
 cial capacity upon one of the heirs, against articles of personal property 
 ordered by the judge of probate to be specifically distributed to such 
 heir. Rose v. O'Brien, l. 188. 
 
 3. By R. S. of 1857, c. 82, § 47, a demand originally payable to the 
 defendant in bis own right, founded on a judgment or contract, express 
 or implied, for the price of real or personal estate sold, for money paid or 
 had and received, for services done, for a liquidated sum, or for one as- 
 certainable by calculation, may be set off. Cutler v. Gilbreth, liii. 176. 
 
 4; If on account of his own laches in not rescinding a sale, the vendee 
 cannot maintain a count for money paid or had and received for the ar- 
 ticle delivered, he cannot, under the above statute, set off the claim 
 against the vendor's suit growing out of a distinct transaction. Cutler 
 V. Qilbreth, liii. 176. 
 
 5. In trover by the rightful administrator of an intestate's estate to 
 recover tlie value of the goods and effects of the estate taken by an exec- 
 utor de son tort, the defendant cannot file an account in set-off for the 
 intestate's debts, paid by him since the decease. Tobey v. Miller, lit. 
 480. 
 
 6. Bills held by the defendant when the bank became insolvent and 
 passed into the hands of the receivers, may be allowed in set-off to an 
 action in the name of the bank against an indorser of a promissory note, 
 •Miter, as to such bills as were purchased after the bank became insolvent. 
 American Bank v. Wall, lvi. 167. 
 
 See Costs, 47, 56. 
 
 II. HOW, AND WHEN TO BE PRESENTED AND ALLOWED. 
 
 7. An account may be filed in set-off on the first day of the term at 
 which the defendant is obliged to appear. Cooley v. Batterson, xlix. 
 570. 
 
 8. An executor or administrator other than an administrator de bonis 
 non, may file an account in set-off, on the first day of the terra next after 
 the expiration of the year from the date of his appointment, although the 
 action may have been entered at a previous term. Cooley v. Patterson, 
 XLIX. 570. 
 
 9. If, to an action on a promissory note, given by the defendant to the 
 plaintiff, the former file an account in set-off, the plaintiff may, by virtue 
 of R. S. of 1857, c. 82, § 55, in turn, file and prove an account in set-off. 
 Boyd V. Bartlett, lit. 496. 
 
 10. There being no prescribed limitation as to the time for the plain- 
 tiff to file such an account, it should be received under such conditions 
 as will effectually protect the defendant against surprise. Boyd v. Bart- 
 lett, lit. 496. 
 
 m. SET-OFF OF JTTOGMENTS AND EXECUTIONS. 
 
 11. When the plaintiff in each of two actions, simultaneously pending 
 iu the same court, is entitled to judgment, and the creditor in one is the 
 
 31 
 
482 SHERIFF. SHIPPING. 
 
 debtor in the other, the^court will, on motion, order a set-off, if the rights 
 of others do not interfere. New Haven Copper Co. v. lirown, xlvi. 
 418. 
 
 12. The court has the power to withhold judgment until the defend- 
 ant as plaintiff in another action, using due diligence, shall obtain his 
 judgment, when the judgments or executions may be set off. New Ha- 
 ven Copper Co. v. lirown, xlti. 418. 
 
 13. Whenever a set-off of judgments or executions can be made, the 
 creditor in the one being the debtor in the other, "the demands are of 
 such a nature " as to be within R. S. of 1841, c. 114, § 74 (R. S. of 1857, c. 
 81, § 68). New Haven Copper Co. v. Brown, xlvi. 418. 
 
 14. A. and B. obtained judgments against each other, when B. moved 
 for set-off. C. as assignee of A. objected. Held, that the assignee, be- 
 fore he can successfully resist the set-off, must make it appear that the 
 assignment was before B. became entitled to the sum due him from A. 
 New Haven Copper Co. v. Brown, xlvi. 418. 
 
 See CoNTEACT, 39. 
 
 SHERIFF. 
 
 1. A judgment against the sheriff for his default is a prerequisite for 
 maintaining a suit upon his official bond. And if such judgment is ob- 
 tained by fraud or collusion, it is not conclusive against his sureties. 
 Dane v. Gilmore, li. 644. 
 
 2. Sureties on a sheriff's bond are not liable for Lis acts or omissions 
 in the service of a precept, which, by law, he was not authorized to 
 serve. Bane v. Gilmore, li. 544. 
 
 SHIPPING. 
 
 I. TITLE. 
 
 II. MASTER AND SEAMEN. 
 
 III. EIGHTS AND LIABILITIES OP OWNERS. 
 
 IV. BILLS OF LADING. 
 
 V. FREIGHT AND CHARTER-PARTIES. 
 
 VL IN OTHER RESPECTS. 
 
 I. TITLE. 
 
 1. A. contracted to advance to B. the means for the building of a ves- 
 sel, which, when completed, was to be delivered to A. « as his property, 
 as collateral security." After delivery, A. sold, her at auction, when she 
 was struck off to the agent of A. In a suit of A. against B. for the ad- 
 vances, Held, that B. was hot bound by the sale, but might show the 
 
SHIPPING. 483 
 
 value of the vessel, that A. could not legally become the purchaser at 
 such sale, and that the sale did not change the, title. Parker v. Vose, 
 XLV. 54. 
 
 2. A., as creditor of B., requested the latter to secure him, to which 
 he replied that "he owned a vessel and was willing to transfer her as 
 security to A." B. soon afterwards transferred the vessel (which was of 
 much greater value than the demand), by an absolute bill of sale to A., 
 which was duly recorded, all of which was without A.'s knowledge till 
 some time thereafter. Held, that there was not such a perfected sale as 
 was valid against creditors. Hinckley v. JBridgham, xlvi. 450. 
 
 3. The enrolment, as well as the register of a vessel, is not evidence 
 of property, except so far as it is confirmed by some auxiliary circum- 
 stances, showing that it was made by the authority or assent of the per- 
 son named in it, and who is sought to be charged as owner. Dyer v. 
 Snow, XL VII. 254. 
 
 4. Where one had taken a bill of sale of a part of a vessel, absolute 
 in form, but designed as collateral security, if afterwards he assumes to 
 act as owner, pays bills against the vessel, and suffers judgment to go 
 against him on default, when sued as owner, — such acts afford sufiicieut 
 evidence to hold him liable, in a suit in equity by a co-owner, for contri- 
 bution. McLellan v. Osborne, li. 85. 
 
 5. So if the vendee afterwards purchases and pays for the part of the 
 vessel so held by him, but receives no other instrument of transfer, such 
 purchase and payment will, between the parties, operate to pass the 
 title. McLellan v. Osborne, li. 85. 
 
 6. And if that part of the vessel be afterwards sold on execution to 
 the creditor in the execution as the vendor's property, and by his and 
 the creditor's consent the sale was revoked and vacated, and the officer 
 directed to m.ake no return of the sale on the execution, the former ven- 
 dee cannot claim that the sale on execution devested him of his title in 
 the suit in equity by the co-owner. McLellan v. Osborne, li. 85. 
 
 7. A vessel cannot have two registers at the same time. " Perma- 
 nent " and " temporary," when applied to the registers of a vessel, do not 
 imply that they are coexistent, but successive. Ghadwick v. Baker, 
 LIV. 9. 
 
 8. Such a sale of a vessel, in whole or in part, as creates a new owner, 
 renders her former register inoperative and void. Ghadwick v. Maker, 
 LIV. 9. 
 
 9. Under Act of Congress of July 29, 1830, a bill, of sale of a vessel, 
 whether conditional or absolute, must be recorded in the ofBce from 
 which the last register issued. Chadwick v. Baker, liv. 9. 
 
 10. By virtue of the constitution of the United States, congress has 
 the exclusive power to provide where the evidences of title of registered 
 and enrolled vessels, in certain cases, shall be recorded. Wood v. Stock- 
 well, lv. 76. 
 
 11. The State legislature has no authority, directly or indirectly, to 
 add to or dispense with the requirements of section one of the act of 
 congress of July 29, 1850, entitled an "Act to provide for recording the 
 conveyances of vessels." Wood v. Stockwell, lv. 76'. 
 
 . 12. R. S., c. 91, § 1, providing for the registration of chattel mortgages, 
 does not apply to property in vessels which are duly registered or en- 
 
484 SHIPPING. 
 
 rolled according to the laws of the United States. Wood v. Stockwell, 
 Lv. 76. 
 
 13. One part-owner of a vessel, who has given the bond provided in 
 E. S. of 1841, c. 114, §§ 65 and 66 (R. S., c. 81, §§ 59 and 60), and taken 
 possession of the vessel for the purpose of dissolving an attachment 
 thereof, made in a suit against another part-owner, and subsequently- 
 paid the judgment recovered in such suit, — holds the share of the vessel 
 so attached as security for the amount of the judgment so paid, and is 
 entitled to such share's earnings during such holding; and he may re- 
 cover the same of the master who has adjusted the accounts with the 
 ship's ousband, paid other part-owners their share of the earnings, and 
 promised him to pay his.' Call v. Perkins, lt. 517. 
 
 II. MASTER AND SEAMEN. 
 
 (a) Duty and authority of the master as agent. 
 
 (b) Wages op master and seamen. 
 
 (c) In other respects. 
 
 (a) J)uty and authority of the master as agent. 
 
 14. The mast^r cannot by virtue of his oflBce and without special au- 
 thority bind the owner to pay for the repair of his vessel at the port 
 where he resides. Dyer v. Snow, xlyii. 254. 
 
 15. The master is primarily the agent and representative of the own- 
 ers of his vessel; but, in his character of master, he has originally a latent 
 potentiality of other powers which subsequent events may call into exer- 
 cise. Lemont v. JOeniond, lii. 365. 
 
 16. If his voyage is prosperous and free from disaster, he has no right 
 to intermeddle with the cargo, on the voyage or on its safe termination ; 
 but in case of disaster, peril, or stress of weather, he may be called upon, 
 in the absence of all other parties, to act from necessity as the agent of 
 each and all persons interested in the vessel, cargo, and insurance, ie- 
 mont V. Lord, lii. 365. 
 
 17. When a vessel is lost by the perils of the sea, or it puts into a 
 port in distress, and is condemned as unseaworthy, the ship-owner is not 
 bound by the terais of the charter-party which excepts the "perils of the 
 sea," to forward the goods saved ; but the ship-owner, or the master, as 
 his agent, may, and it is his duty to tranship them, if thereby anything 
 can be saved as freight to the owner. Lemont v. Lord, lii. 365. 
 
 18. If this cannot be secured, the master cannot bind his owners to 
 pay to the owner of the second ship, a rate in excess of the original 
 freight. Lemont v. Lord, lii. 365. 
 
 19. The master may, and it is his duty to act as agent or supercargo 
 of the owners of the cargo, when he can send it forward at a rate of 
 freight which, under the circumstances, reasonably promised to be for the 
 interest of its owner. In so doing, he acts as agent of the shippers, and 
 not of the owners of the ship. Lemont v. Lord, Ln. 365. 
 
 20. The authority of a master to sell the vessel and cargo in case of 
 marine disaster, rests exclusively upon the ground of necessity, the bur- 
 den being upon the assured, Stephenson v. Piscataqua F. & M. Ins, 
 Co., LIT. 55, 
 
SHIPPING. 485 
 
 21. What -will not constitute the requisite moral necessity. Stephen- 
 son V. Fiscataqua F. d; M. Ins. Co~, liv. 55. 
 
 (b) Wages of master and seamen. 
 
 22. The owners of a vessel are liable for the contracts of the master 
 de facto, with seamen, until proof of a special contract exemi)ting them; 
 but a letter from the master is not admissible to prove a contract made 
 by him with a third person, in behalf of his owners. Sargent v. Word- 
 ing, xLvi. 464. 
 
 23. The compensation of the master depends entirely upon his con- 
 tract with the owners ; but as their agent, he is entitled to be reim- 
 bursed for his necessary expenses while in their service. Woodburg v. 
 Urazi&r, xlviii. 302. 
 
 24. A master, employed under a general contract at one place to go 
 to another and take charge of a vessel, is in the service of the owners, as 
 soon as he staits, and they are bound to repay the expenses of his 
 journey. Woodbury v. Brazier, xlviii. 302. 
 
 25. When he is discharged in a foreign port, he is no longer in their 
 service and cannot recover of them the expenses of his homeward pas- 
 sage. Woodbury v. JBrazier, xlviii. 302. 
 
 26. The laws of the United States, allowing extra pay to seamen dis- 
 charged from an American vessel in a foreign port, do not apply to the 
 master. Woodbury v. JBrazier, xlviii. 302. 
 
 27. When the compensation of the master is monthly wages, and a 
 commission, he is entitled to receive his commission upon sums received 
 as demurrage. Jiradbury v. Brazier, xlviu. 302. 
 
 (c) In other respects. 
 
 28. Where a vessel is sailed on shares, and the master has control of 
 her, he Is, pro liac vice owner, and is alone responsible for loss of freight. 
 Bonzey v. Hodgkins, lt.' 98. 
 
 ni. EIGHTS AND LIABILITIES OF OWNERS. 
 
 (a) Foe supplies and repairs. 
 
 (b) IlT OTHER RESPECTS AND IN GENERAL. 
 
 (a) For supplies and repairs. 
 
 29. A part-owner of a vessel, hired to the master on shares, who has 
 received from the master her earnings, and disbursed money for her re- 
 pair, is liable as receiver, to a co-owner, for his portion of tlie net earn- 
 ings, in an action of account. But whether as bailiff, qumre. Jaruis 
 v. JVbyes, xlv. 106. 
 
 30. As a general rule, onepart-owner of a vessel is the agent for the 
 other part-owners, and, in all that concerns the business and employment 
 of the vessel, he may bind them for necessary supplies and repairs. Fl- 
 der V. Zarrabee, xlv. 590. 
 
486 SHIPPING. 
 
 31. Thougli this authority is implied from their community of interest 
 and relations, it is not to be conclusively presumed from these facta, but 
 it may be modified, controlled, or negatived by other facts. Elder v. 
 Larrahee, xlv. 590. 
 
 32. Though repairs in a given case are necessary and are made by order 
 of one of the part-ovrners, and the others give no notice of dissent to the 
 repairer, it does not follow conclusively as a matter of law, that they are 
 all liable therefor. Elder v. Eairabee, xlv. 590. 
 
 33. When such repairs are made in the home port by order of one part- 
 owner, and the repairer knows the other owners, and having opportunity 
 to consult thetft neglects to do so, unless he shows that all the owners 
 assented to the repairs, he should be presumed to have made them on 
 the credit of such only as employed him; and his remedy is against them 
 alone, or against the vessel itself, by a proceeding in rem. Elder v. 
 Larrabee, xlv. 590. 
 
 * (b) In other respects and in general. 
 
 34. The plaintiff's intestate was a part-owner of a vessel, against which' 
 at the time of his decease, were certain outstanding unpaid bills, charged 
 to the vessel and owners. The defendant had been ship's husband, and, 
 after the decease of her intestate, the plaintiff, as executrix, gave him 
 special authority, as her agent, to sell the share of the vessel belonging to 
 thtf estate. In an action for the proceeds of the sale, Held, that the de- 
 fendant had no right to approjiriate the proceeds to the payment of the 
 bills, but must account to the plaintiff. Curtis v. Blanchard, xlt. 228 
 
 85. Where a master had loaned a part of the money received for freight 
 and taking a promissory note therefor payable to himself, died before the 
 note was paid, his administrator cannot retain it; such note being the 
 property of the owner of the vessel, held in trust by the master and clear- 
 ly distinguishable from the assets of the estate. Thompson v. White, 
 XLV. 445. Thompson v. Small, xlv. 445. 
 
 36. If the administrator, after demand of the note of him, collect it, he 
 ■will become personally liable to the owner for the money. Thompson 
 V. White, XLV. 445. 
 
 37. The owners of a vessel have a legal right to take it from the custo- 
 dy and control of the master, whenever and wherever they see fit to do 
 so. Woodbury v. Brazier, xlviii. 302. 
 
 38. When a vessel is lost by the perils of the sea or it puts into a port 
 in distress, and is condemned as unseaworthj', the ship-owner is not bound 
 by the terms of the charter-party which excepts the "perils of the sea," 
 to forward the goods saved ; but he, or the master, as his agent, may, 
 and it is his duty to tranship them, if thereby anything can be saved as 
 freight to its owner. Lemont v. Lord, lii. 365. 
 
 39. The mere fact that a vessel is taken on shares does not discharge 
 the owners from liability for the loss of freight. JBonzey v. Hodgkins, 
 LV. 98. 
 
 See Release, 9. ' 
 
SHIPPING. 487 
 
 IV. BILLS OF LADING. 
 
 40. Where a consignee, in a bill of lading, sells the goods before their 
 arrival, and assigns the bill of lading to the vendee, if the purchase is 
 made in good faith, and in the usual course of business, the right of the 
 consignor to stop the goods in transitu is thereby devested, notwith- 
 standing the consideration of the sale was the payment of an antecedent 
 debt. Ziee v. Kimball, xlv. 172. 
 
 41. It seems that such an assignment of the bill of lading as collateral 
 security for an antecedent debt, would not be a sale in the usual course 
 of Business, and would not devest the right of the consignor to stop 
 the goods in transitu. Lee v. Kimhall, xlv. 172. 
 
 V. FREIGHT AND CHAKTBR-P ARTIES. 
 
 42. Where there is a chartering of the whole vessel under and over 
 decks, on the one part, and on the other an agreement to pay a given 
 sum for the use of the vessel, the agreement will be treated as a con- 
 tract of hiring rather than of affreightment. Hasten v. Richards, xliv. 
 182. 
 
 43. Under such an agreement the cargo offered must be suited to the 
 capacity of the vessel, and the owner is not bound to alter her to ac- 
 commodate the freight ; and damages may be recovered for the differ- 
 ence between the contract price and what the vessel might have earned 
 by pursuing the voyage with other freight, and for necessary delay. 
 Husten v. Richards, xliv. 182. 
 
 44. In reducing to writing a contract for the charter of a vessel, the 
 usual printed form of a charter-party for a voyage was used by the 
 scrivener, who erased the words "for a voyage from," &c., and inserted 
 "for a space of time, commencing on, &c., and to continue six months; 
 should the vessel be upon a voyage at the expiration at the time speci- 
 fied, time to end on her arrival, &c., unless a longer time is agreed upon." 
 The party of the second part agreed " to pay for the charter during the 
 voyage aforesaid 1600 per month for each and every month as before 
 specified." An outward voyage was made, but she was lost on her re- 
 turn voyage. Held, that the charter wa,s not for a voyage, but for a 
 specified time which was terminated by a peril of the sea, up to which 
 event the defendants are liable to pay the contract price, with interest 
 since ; that the defendants are not entitled to commissions or insurance 
 on advance payments. Brewer v. Churchill, xlv. 64. 
 
 45. The defendants chartered a brig, owned by the plaintiffs, " for a 
 voyage from Bangor to Palermo and Messina, in the island of Sicily, and 
 back to Boston or New York," for which they agreed to pay "thirty- 
 eight hundred dollars and all port charges, including consul's fees, inter- 
 preter's fees and lighterage ; and, if the brig is required to go to the sec- 
 ond port before named, thirty-nine hundred and fifty dollars, and all port 
 charges as above." The voyage was performed according to the written 
 directions of the defendants, from Bangor to Messina, without calling at 
 Palermo, and thence to Boston. Held, that Messina was the "second 
 port named " in the charter-party, and the plaintiffs entitled to $3,950. 
 Stewart v. Reed, xlvi. 321. 
 
488 SHIPPING. 
 
 46. Where a ship was condemned at an intermediate port, and the 
 master in his own name as master, in the absence of all others interest- 
 ed, after publicly advertising for tenders to forward the cargo, tran- 
 shipped it at a rate in excess of the original freight (that being the low 
 est tender), to the oi'iginal consignees; and, upon arrival at the port of 
 destination, the consignees, refusing to receive the cargo transhipped, the 
 master of the second ship, after due preliminaries, lawfully sold the car- 
 go, the net proceeds of which were less than the amount of freight due. 
 Held, that the owners of the second ship could not recover of the own- 
 ers of the first ship the balance of freight thus stipulated, either on the 
 bill of lading or on an implied assumpsit. Lemont v. Lord, lii. 365! 
 
 47. The plaintiff, as agent of the owners, chartered their vessel for a 
 voyage from Boston to Callao, for $1,625 per calendar month, payable at 
 Callao, so far as earned, up to time of discharge there, in drafts on the 
 United States, at sixty days sight, to the order of the captain, first de- 
 ducting amounts advanced him for disbursements, with liberty to the 
 charterers to recharter her for a cargo of guano. The consignees, at 
 Callao, paid the master on account of freight earned $5,210 in cash, and 
 gave their draft on a Boston house for $7,000, at sixty days, payable to 
 the order of the master, who indorsed it to tlie plaintiff. The consign- 
 ees rechartered the vessel for a cargo of guano. At its maturity, the 
 draft remaining unpaid and the drawees having failed, they transferred 
 their interest in the freight money in the guano to the plaintiff, as agent 
 of the owners, to collect the same on account of the vessel's earnings. 
 Twenty days afterwards, the defendants' testator, owning three-sixteenths 
 of the vessel, sold his interest in the unpaid draft to the plaintiff, at fifty 
 per cent, taking therefor the plaintiff's note, which by its terms was 
 "for" the testator's " three-sixteenths interest in the unpaid $7,000 draft." 
 The guano freight was received and divided among the owners, the tes- 
 tator receiving three-sixteenths thereof. In assumpsit to recover the 
 money received by the testator, Hdd, that the plaintiff purchased of 
 the testator the latter's interest in the draft only, and not his interest in 
 the guano freight. Ward v. Bourne, lvi. 161. 
 
 TI. IN OTHER RESPECTS. 
 
 48. Upon matters in issue, in which the courts of common law have 
 concurrent jurisdiction with courts of admiralty, if the parties elect the 
 common-law remedy, they thereby voluntarily submit to the legal prin- 
 ciples and modes of proceeding which prevail in the courts affording 
 that remedy. Sawyer v. Eastern Steamboat Co., xlvi. 400. 
 
 49. The rules of navigation and the usages of the sea are not regard- 
 ed in our common-law jurisdiction as positive in their nature. Sawyer 
 Y. Eastern Steamboat Co., xlvi. 400. 
 
 50. The principles that, at common law, apply in cases of collision of 
 carriages traveling upon our highways, apply also to collisions upon nav- 
 igable waters. Sawyer v. Eastern Steamboat Co., xlvi. 400. 
 
 ' 51. In an action against the owners of a steamboat, for collision with 
 a schooner, the presiding judge properly declined to instruct the jury 
 that "if they should fiaid that the persons in charge of the steamer saw 
 the schooner in season to notify her of their approach, by ringing the 
 
soldier's aid. 489 
 
 bell or blowing the whistle, before the schooner saw the steamer, and, in 
 consequence of neglecting to do so, the collision occurred, then they 
 were in fault, and the defendants should pay the damage, unless they 
 should also find the schooner was in fault for some other cause." Sawyer 
 V, Eastern Steamboat Co., xlvi. 400. 
 
 See Contract, 40, 41. 
 Evidence, 11. 
 
 SLABS. 
 See Deed, 44, 46. 
 
 SOLDIERS' AID. 
 
 1. The families of absent soldiers in the service of the TJ. S., when 
 standing in need of assistance, do not incur pauper disabilities by re- 
 ceiving supplies, under c. 63 of the Pub. Laws of 1861, from the cities 
 or towns where such soldiers resided at the time of their enlistment. 
 "Veasie v. China, i.. 518. Ames v. Smith, li. 602. 
 
 2. Nor do such disabilities attach to the soldier, whose family in his 
 absence receive such needed assistance. Veazie v. China, l. 618. 
 
 3. No action can be maintained by the city or town furnishing sup- 
 plies under this act, against the city or town, where the soldier whose 
 family may have received such supplies, has his settlement. Veazie v. 
 China, l. 518. 
 
 4. Chapter 63 of the Public Laws of 1861 is mandatory. Veazie v. 
 China, l. 518. 
 
 5. The purpose of § 1, c. 127 of the Public Laws of 1862, was to ex- 
 tend the benefit of c. 63 of 1861, to all in the service of the United 
 States, or of the State, and to relieve, to the extent specified, cities, 
 towns, and plantations from their liabilities for the support of the fam- 
 ilies of their inhabitants in such service. Milford v. Orono, l. 529. 
 
 6. Chapter 127 of the Public Laws of 1862, is mandatory. Milford 
 T. Orono, L. 529. 
 
 7. No recovery can be had, by the city, town, or plantation so fur- 
 nishing aid, against the city, town, or plantation wherein such inhabitant 
 has his settlement. The claim is against the State. Milford v. Orono, 
 L. 529. 
 
 8. No disabilities are imposed upon or incurred by the soldier or sailor 
 whose family receives such aid, nor by their respective families. Mil- 
 ford V. Orono, l. 529. 
 
 9. To subject the wife of a volunteer to removal to the place of her 
 settlement under R. S. of 1857, c. 22, when she had received aid from 
 
490 STAMP, EEVENUE. 
 
 the town in which she and her husband resided at the time of his enlist- 
 ment, would constitute a disability on their part of determining their 
 place of residence and of remaining therein. Ames v. Smith, li. 602. 
 
 10. The forcible removal of the wife and family of such volunteer to 
 the town of their legal settlement by the overseers of the poor of such 
 town, would be an unauthorized act, for which they would be answera- 
 ble in damages. Ames v. Clark, li. 602. 
 
 11. Supplies furnished to a soldier and his family, by a town in which 
 they fell into distress, while there temporarily on a visit, cannot be con- 
 sidered as furnished under c. 127, of Public Laws of 1862, or of c. 295, of 
 1863. Bremen v. Brewer, liv. 528. 
 
 12. Expenses incurred for supplies thus furnished may be recovered 
 of the town in which such soldier had his legal settlement. Bremen v. 
 Brewer, liv. 528. 
 
 13. By the Public Laws of 1864, c. 257, no aid furnished Ap a soldier's 
 family within one year next after he was killed in battle could be recov- 
 ered by the town in which such family resided, against the town in 
 which he had his settlement. Verona v. Penobscot, lvi. 11. 
 
 14. A notice of such aid furnished within the year after the death of 
 the soldier, and before April 1, 1865 (when o. 331 of the Public Laws of 
 1865 took effect), is not sufficient to charge the town in which he had 
 settlement at the time of his death, for supplies furnished his family sub- 
 sequent to such notice. , Verona v. Penobscot, lvi. 11. 
 
 15. Section 6, of c. 63, of the Public Laws of 1861, requiring towns to 
 make proper provision for the support of soldiers' families residing 
 therein, and prohibiting any disabilities therefrom, was applicable only 
 to the first ten regiments. Orland v. Ellsworth, lvi. 47. 
 
 16. Chapter 127, of the Public Laws of 1862, approved March 18, was 
 prospective in its operation. Orland v. Ellsworth, lvi. 47. 
 
 17. Supplies furnished the families of soldiers of any other than the 
 first ten regiments before March 18, 1862, must be deemed pauper sup- 
 plies. Orland v. Ellsworth, lvi. 47. 
 
 SOUTH KEISTNEBEC AGRICULTURAL SOCIETY. 
 
 See CoEPOEATiour, 7. 
 
 STAMP, REVENUE. 
 
 To authorize the court to declare an unstamped promissory note "in- 
 valid and of no effect," it must appear that the omission to affix the 
 stamp, provided for in the Act of Congress of March 3, 1865, was there- 
 suit of an " intent to evade " the statute. Dudley v. Wells, lv. 145. 
 
STATE. — STATE TREASUKEK. 491 
 
 STATE. 
 
 1. The State may grant a title to land by a resolve directly, but the 
 resolve must contain words of grant, release, or confirmation. But 
 when the resolve contains no such words, but simply authorizes or pro- 
 vides for the giving of a deed, the title does not pass until the deed is 
 executed. Cary v. Whitney, xlviii. 516. 
 
 2. Where a resolve provided for a grant of land to a person who had 
 erected a saw-mill, the State, after the passage of the resolve, and be- 
 fore the conveyance by the land-agent, did not hold the land as trustee 
 for its intended beneficiary. It was a donation, and not a case of vendor 
 who had received the purchase-money under an agreement to sell and 
 ■convey. Cary v. Whitney, xlviii. 516. 
 
 3. The State caanot be disseised. Gary v. Whitney, xlviii. 516. 
 
 See Betteembnts, 3. 
 
 STATE LANDS. 
 See Land Agent, &c. 
 
 STATE PEISON. 
 See Aebiteation, 3. 
 
 STATE TREASURER. 
 
 1. In an action by the indorsee against the makers of a negotiable- 
 promissory note given by the defendants to B. D. P., who was State 
 Treasurer, and, after being indorsed by him was presented to the plain- 
 tifi^'s bank, with which said B. D. P., as said treasurer, had an account 
 for discount ; and discount was refused until indorsed by B. D. P. as 
 "State Treasurer," whereupon that indorsement was added, the note 
 discounted, and its proceeds, by his direction, placed to the credit of his 
 s^id account, thereby making a balance in favor of the State of more 
 than $1100; and the plaintiffs, about the time the note became due, 
 learning that B. D. P. was a defaulter to the State, received from him a 
 check for 81100, signed by B. D. P., "State Treasurer," and the amount 
 indorsed on said note ; and the plaintiffs thereafterwards paid the said 
 amount of $1100 to the State, and erased the indorsement of the amount 
 from the note. Held, (1) That the proceeds of the note, thus passed to 
 the credit of the State, are to be regarded as its funds ; (2) That the at- 
 
492 STATUTES. 
 
 tempted pnyment of the $1100 to the plaintiffs, was contrary to the stat- 
 ute and did not constitute a payment pro tanto of the note ; (3) That 
 if the transaction was fi-audulent on the part of B. D. P. and the bank, 
 it was so as against the State alone, and not as against the defendants 
 whether principals or sureties ; (4) That the plaintiffs lost no rights by 
 voluntarily paying over the amount indorsed to the State ; and (5) That 
 the defendants must be deemed as piincipals to the bank, having no de- 
 fense in law or equity. Mechanics Bank v. HaMowdl, lii. 545. 
 
 2. The discharge of a State treasurer's bond is pnma/acie a discharge 
 of all claims against the treasurer, for which he or his sureties were liable 
 on the bond. State v. Dow, uii. 305. 
 
 8. The court will not take judicial notice' of the report to the legisla- 
 ture of the committee appointed by the resolve of March 20, 1S60, to set- 
 tle with the sureties of the then late State treasurer. State v. Dow, Lin. 
 305. 
 
 4. The State treasurer cannot be required to pay out money received 
 by him in his official capacity, without a warrant from the governor and 
 council. Weston v. Dane, liii. 372. 
 
 STATUTES. 
 
 I. CONSTETJCTIOK 
 II. KEPEAL AND EEVIVOE. 
 III. GENERALLY. 
 
 I. CONSTRUCTION. 
 
 1. If the language of a statute be- clear and plain, courts have no au- 
 thority, in consideration of the consequences resulting from it, to give it 
 a construction different from its natural and obvious meaning. Coffin v. 
 Mich, XLV. 507. 
 
 2. When an act is repealed, and at the same time is reenacted with 
 some changes, both statutes may properly be taken into consideration, in 
 giving a construction to the latter; but the act repealed has no force 
 whatever, only so far as it is continued in force by saving clauses and ex- 
 ceptions. Coffin V. Hich, xlv. 507. 
 
 3. Statutes in derogation of the common law cannot properly be ex- 
 tended by construction, so as to embrace causes not fairly within the 
 scope of the language used. DweUy v. Dwelly, xlvi. 377. 
 
 4. Statutes are to be construed according to their plain import, with- 
 out regard to mere inferences which may be drawn from the language of 
 an act passed by a subsequent legislature. Ingalls v. Cole, xlvii. 530. 
 
 5. Where a statute has received a judicial construction, and is after^ 
 wards reenacted in the same terms, it is to be understood that the legis- 
 lature have adopted the construction given it. Osgood v. SolyoM, 
 xLViil. 410. 
 
STATUTES'. 
 
 493 
 
 6. Statutes imposing a dnty, and giving the njeans of performing it, 
 are mandatory. Veazie v. China, l. 518. 
 
 7. Such part only of a statute, as is repugnant to an act of congress, 
 will be adjudged void. Packard v. Xewitston, lv. 456. 
 
 See Abatement, 3, 28. 
 
 AccoBD AND Satisfaction, 
 4. 
 
 Account, Mutual, 2. 
 
 Action, 15. 
 
 Agency, 20. 
 
 Amendment, 5, 17, 26, 28, 32, 
 37. 
 
 American Bank, 1, 2. 
 
 Androscoggin R. R., 1, 2, 3, 
 4, 6, 7, 8, 9, 10. 
 
 Appeal, 1, 7. 
 
 Appeenticb and Appken- 
 ticeship, 1, 3. 
 
 Arbitration, 3, 4, 5, 7. 
 
 Arrest, 1, 2. 
 
 Arson. 
 
 Assessor, 2. 
 
 Assignment, 17, 19, 26. 
 
 Assumpsit, 22, 40. 
 
 Attachment, 2, 3, 5, 7, 8, 9, 
 13, 14, 15, 16, 17, 2-2, 23, 
 27, 29, 30, 31, 32, 33, 34, 
 35, 36, 37, 38, 40, 41, 42, 
 43, 44, 55, 56, 58, 64. 
 
 Attorney and Counselor, 
 1, 3, 4, 5. 
 
 Augusta, Municipal Court 
 
 OF, 1. 
 
 Bail, 
 
 Bank, 9, 10, 11, 12, 13, 17, 22, 
 23. 
 
 Bankruptcy, 3, 4. 
 
 Bastardy, 1, 2, 8, 10. 
 
 Betterments, 1, 5. 
 
 Betting, 1. 
 
 Biddeford, City of. 
 
 Bills, &c., 22, 29, 59, 60, 122. 
 
 Bond, 1, 3. 
 
 Bounty,.!, 2, 4, 5, 6, 10, 12, 
 17. 
 
 Breach of Promise, &c., 6. 
 
 Case, 6, 10. 
 
 Certiorari, 5. 
 
 Charitable Uses, 1. 
 
 Cheating bt False Pre- 
 tenses. 
 
 collbotob, 8, 6, 20, 21. 
 
 Common Seller. 
 
 Commutation, 2, 3. 
 
 Complaint, 2, 3, 10, 11, 14, 
 
 16, 18. 
 Constable, 1. 
 Constitutional Law, 1, 2, 
 
 3, 4, 7, 10, 11, 16, 18, 19, 
 
 27, 28, 29, 32, 36, 37, 42. 
 Contempt, 3. 
 Corporation, 4, 5, 20, 21, 22, 
 
 29,30,31,32,33,34,35,36, 
 
 39,44,47.48,50. 
 Costs, 2, 7, 9, 18, 14, 18, 19, 
 
 27, 29, 37, 43, 44, 48, 52. 
 Coupons, 2, 7, 8. 
 County Commissioners, 2, 
 
 6, 7, 8, 11, 14, 15, 17, 19. 
 Covenant, 11, 12. 
 Criminal Law, 1. 
 Deed, 17. 
 Demand, 1. 
 Deposition, 1, 3, 4, 9. 
 Descent, &c., 1, 2, 4. 
 Deserter, 2, 5. 
 Devisej &c., 23, 25. 
 Divorce, 1, 2. 
 Dogs, 1. 
 
 DOMICIL, 16. 
 
 Dower, 6, 10, 19, 24, 45, 46. 
 
 Drain, 4, 7. 
 
 Drinking-house, &c., 1, 2. 
 
 Election. ^ 
 
 Emancipation. 
 
 Equity, 3, 5, 9, 10, 14, 19, 32, 
 
 35,36,37,46,62,64,69,97, 
 
 116, 130, 137, 144, 174, 
 
 li^3. 
 Error, 13. 
 Evidence, 5, 13, 15, 85, 121, 
 
 130. 
 Exceptions, 1, 8, 21. 
 Execution, 2, 8, 9, 19, 31, 
 
 34, 49, 52, 59, 60, 62, 64, 
 
 72, 75, 80, 83, 84, 85, 90, 
 
 108. 
 Executor, &c., 6, 7, 8, 16, 19, 
 
 20, 21, 29, 35. 
 Felony, 1. 
 Fence, 6. 
 Fine. 
 Fire, 1, 2. 
 Fishery, 3. 
 
494 
 
 STATUTES. 
 
 Forcible Ent^t, &c., 1, 3, 
 5,8. 
 
 FOEGBET. 4. 
 
 Feaud, 2, 9, 13, 15, 18, 21, 22, 
 
 23, 24, 31. 
 Frauds, Statute of. 
 Gambling. 
 Gifts, 1. 
 Guardian, &c., 1. 4, 5, 6, 11, 
 
 16. 
 Habeas Corpus, 1. 
 Hay, 1. 
 Homestead, 1. 
 Hoop-poles. 
 
 Husband, &c., 12, 16, 17, 24. 
 Impounding. 
 Impressment of Peopbett, 
 
 3. 
 Indictment, 5, 6, 8, 9, 11, 15, 
 
 16, 24, 26, 30, 31, 48, 49, 
 
 50. 
 Infant, 14. 
 Injunction,. 5. 
 Insane Persons, 8. 
 Insolvent Estates, 1, 2, 3. 
 Insurance, 12, 13, 14, 15, 31, 
 
 33, 57, 63, 64, 66, 67, 79, 
 
 81, 126, 130, 131, 132. 
 Interest, 6. 
 
 Joint Tenant, &c., 16, 17, 18. 
 Judgment, 8, 35. 
 
 JUEOE, 5. 
 
 Justices of the Peace, 2, 6, 
 
 7, 8, 9, 10, 11. 
 Land Agent, &c., 2, 15. 
 Landlord, &c., 1, 5, 15, 26, 
 
 29, 30. 
 Larceny, 2. 
 Lease, 11, 12, 18. 
 Libel, &c., 1. 
 Lien, 4, 6, 8, 16, 17, 22, 24, 
 
 33. 
 Limitations, Statute of, 1, 
 
 2, 10, 11, 17, 22, 27, 31, 32, 
 
 33. 
 Liquor, 1, 2, 6, 8, 9, 14, 19, 20, 
 
 22, 23, 24, 25, 26, 35, 44, 
 
 38, 49, 52, 53, 61. 
 Mandamus, 5, 10. 
 Married: Woman, 1, 4, 5, 7, 
 
 11, 12, 14, 15, 16, 17, 18, 
 
 21, 22, 23, 24, 25, 27, 28. 
 Mills, 20, 35. 
 Mittimus, 2. 
 
 Mortgage, 3, 19, 68, 73, 85, 
 
 124, 140, 162, 170, 179, 
 
 180. 
 New Trial, 3. 
 Nuisance, 7, 15, 17, 19. 
 Officer, 3, 7, 13, 40, 55. 
 Partition, 5, 9, 23, 24. 
 Pauper, 3, 5, 13, 15, 22, 23, 
 
 24, 25, 26, 31, 84, 47, 48, 
 
 49, 50, 60, 64, 65, 68, 71, 
 
 73, 80, 82, 84, 86, 89, 91, 
 
 92. 
 Penal Action, 1, 2, 3. 
 Perambulation. 
 Perjury, 1. 
 Pleading, 2, 6, 11, 19, 22, 
 
 82. 
 Polygamy. 
 Poor Debtor, 1, 5, 6, 11, 23. 
 
 26, 27, 28, 31, 36, 37, 53, 
 Practice, 2, 4, 7, 26, 27. 
 Probate Bond. 
 Probate Court, 6, 8, 25, 29, 
 
 31, 32, 37, 41, 43. 
 Peohibition, 1. 
 Railroad, 2, 7, 11, 14, 18, 19, 
 
 21, 29, 33, 34, 50, 53, 54, 
 
 65. 
 Recognizance, 13. 
 Reform School, 3. 
 Register, &c., 1, 4, 5. 
 Replevin, 15, 26, 29, 36. 
 Replevin of a Person, 1. 
 Review, 2, 4, 13, 14. 
 Revised Statutes. 
 School Agent, 1. 
 School District,' 2, 4, 5, 6, 
 
 7, 8, 9, 11, 12, 15. 
 Scire Facias, 1, 5, 8, 9. 
 Sceip, 1, 3. 
 Seal, &c., 2. 
 Seisin, &c., 13, 17. 
 Set-off, 3, 9, 13. 
 Shipping, 9, 10, 12, 13. 
 Soldiers' Aid. 
 Superior Court, 1, 2, 3. 
 Supreme Judicial Court, 
 
 6,8. 
 Tax, 1, 2, 3, 4, 7, 8, 13, 14, 15, 
 
 16, 17, 18, 19, 27, 28, 29, 
 
 30, 31, 41, 43. 
 Time, 2. 
 
 Town, 14, 15, 19, 40, 41. 
 Trespass, 1, 2, 33. 
 
STATUTES. 495 
 
 Tbustee Peocess, 3, 4, 5, 7, Way, 29, 30, 32, 83, 35, 39, 4l' 
 
 8, 25, 27, 34, 37, 49, 50, 42, 46, 51, 58, 82. 
 
 51, 52, 53. Widow's Allowance, 3, 6, 9. 
 
 Trust, 2, 3, 5, 14. Will, 2, 8, 14, 15. 
 
 Usury, 1, 3, 6, 7, 9. Witness, 2, 4, 6, 8, 11, 12, 14, 
 
 Waste, 1, 4. 15, 21, 23, 24, 25. 
 
 Way, 3, 19, 20, 22, 23, 24, 28, Writ, 2, 4, 5. 
 
 III. REPEAL AND EEVIVOR. 
 
 8. Section 16, c. 93 of R. S. of 1841, by which the husband of one who 
 died intestate was entitled to the residue of her personal property, after 
 the payment of her debts, &c., was not intended to be repealed by c. 73 
 of the Public Laws of 1848. JUace v. Cushman, xlv. 250. 
 
 9. When a statute is repealed, though a similar one be then enacted, 
 rights, given wholly by the repealed statute, cease to exist unless preserved 
 by a saving clause or an exception. Coffin v. liich, xlv. 507. Smith v. 
 ijstes, xLvi. 158. 
 
 10. Chapter 213 of the Public Laws of 1856, by repealing § 46, c. 148, 
 E. S. of 1841, repealed c. 88 of the Public Laws of 1844, amendatory of 
 § 46. Blake v. Brackett, xlvii. 28. 
 
 11. Chapter 248 of the Public Laws of 1856 was continued in force by 
 § 2 of the repealing act in, the R. S. of 1857, as to coupons then in pos- 
 session of any person for valuable consideration. Augusta Bank v. Au- 
 gusta, xLix. 507. 
 
 12. Section 18 of c. 76 of R. S. of 1841 was repealed by § 1, c. 169 of 
 the Public Laws of 1855 ; and it seems that by this repeal § 30 of same 
 chapter is rendered ineffectual. Milliken v. Whitehouse, xlix. 527. 
 
 13. Chapter 109 of the Public Laws of 1844 was not repealed by c. 
 271 of the Public Laws of 1856. Milliken v. Whitehouse, xlix. 527. 
 
 14. By § 2 of the repealing act in R. S. of 1857, liabilities which had 
 accrued by force of previous statutes were preserved, but they must be 
 enforced under the R. S. Milliken v. Whitehouse, xlix. 527. Augusta 
 Bank v. Augusta, xlix. 507. Wiswell v. Starr, l. 381. Grosvenor v. 
 Ghesley, xLvni. 369. 
 
 15. A clause in an act incorporating a mutual fire insurance company, 
 providing that " in case of loss ... by fire," the insured " shall give no- 
 tice thereof in writing to the directors . . . within thirty days ; and the 
 directors shall ascertain and determine the amount of such loss, and, if 
 the party suffering is not satisfied with such determirlation, ... he may 
 bring an action against said company for said loss, at the next court, to 
 be holden in and for the county," where said company is established, 
 " and not afterwards "... neither repeals in express terms, nor by neces- 
 sary implication, so much of R. 8. 1857, c. 81, § 6, as authorizes the plain- 
 tiff to maintain his action in the county where he resides. Martin v. 
 Penobscot Mut. F. Ins. Co., Lm. 419. 
 
 16. The repeal of a statute authorizing an assessment of tax, After a 
 payment thereof under protest and the commencement of a suit to re- 
 cover it back, confers no additional rights on the tax-payer. Abbott v. 
 Bangor, lvi. 310. 
 
 See Corporation, 18, 20, 22, 44. 
 Pauper, 27. 
 
496 STATUTES. 
 
 III. GENERALLY. 
 
 17. In the revision of the statutes of 1857, the principal design was to 
 " revise, collate, and arrange the public laws," and, in revising, to " con- 
 dense as far as practicable;" and a mere change of phraseology should 
 not be deemed a change of the law, unless such was the evident inten- 
 tion of the legislature. Hughes v. Farrar, xlv. 72. 
 
 18. The present statutes are applicable to a case now pending, in rela- 
 tion to a levy made before they were enacted, because they touch the 
 remedy and not the right. Grosvenor v. Chesley, xltiii. 369. 
 
 19. The Massachusetts Statute of 1787, creating a court of sessions, 
 and the decisions under it, are obsolete and inapplicable. Sowland v. 
 Go. Gommissioners, xlix. 143. 
 
 20. When a public law has, in accordance with its provisions, been 
 legally adopted by a city council, such an adoption of a subsequent act 
 amendatory of the former, is not essential, unless its provisions expressly 
 require it. /Suiett v. Spragm, lv. 190. 
 
 STOCKHOLDER. 
 
 See Bank, 5, 6. Coepoeation, 17, 18, 19, 23, 24, 25, 26, 27, 28, 32, 40, 
 41, 42, 43, 45. Equity, 34, 35, 36. 
 
 SUBMISSION. 
 See Aebiteation. 
 
 SUBROGATION. 
 
 See Agency, 25. Sueeties, &o., 16. Tbustee Peocbss. Insue- 
 
 ANCE, 73. 
 
 SUCCESSION OF PROPERTY. 
 See DoMiciL, 10, 11. 
 
SUPERIOR COURT. SUPREME JUDICIAL COURT. 497 
 
 SUNDAY. 
 See Lord's Day. 
 
 SUPERCARGO. 
 See Shipping, 19. 
 
 SUPERIOR COURT. 
 
 1. By c. 216, § 1, of the PublicLawsof 1868, the original and appellate 
 
 criminal jurisdiction, and all powers incident thereto, of the supreme 
 
 judicial court, within and for the county of Cumberland, was transferred 
 
 to and conferred upon the superior court for that county. State v. 
 
 Thomas, lvi. 490. 
 
 2. The last clause of § 12, c. 151, of the Public Laws of 1868, provid- 
 ing for the transfer, under certain circumstances, of cases from the docket 
 of the superior to that of the supreme court, has reference to civil cases 
 only. State v. Thomas, lvi. 490. 
 
 3. By virtue of the first clause of § 12, c. 151, when an indictment has 
 been found against a nephew of the justice of the superior court, any 
 justice of the supreme judicial court may, at the request of the justice 
 of the superior court, preside in the superior court long enough to try 
 the accused on such indictment. State v. Thomas, lvi. 490. 
 
 SUPREME JUDICLA.L COURT. 
 
 1. It is not necessary to show jurisdiction in this court, for it will be 
 presumed until the contrary appears. Stetson v. Gorinna, xliv. 29. 
 
 2. This court has original as well as concurrent jurisdiction with jus- 
 tices of the peace, of actions of trespass quare clausum, although the 
 damages demanded are less than twenty dollars. Bumham v. Moss, 
 XLVii. 456. 
 
 3. This court has general common-law jurisdiction in all cases unless 
 its powers are restricted by the constitution or the statute. Badger v. 
 Towle, xLviii. 20. 
 
 4. This court has jurisdiction in personal actions between parties not 
 resident in this State, if the defendant is found and personal service 
 made upon him when temporarily here. Badger v. Towle, xlvhl 20. 
 
 32 
 
498 
 
 SURETY AND PRINCIPAL. 
 
 5. Where there has been an attachment of the property of a non-resi- 
 dent of the State, but no personal service, the judgment will bind the 
 property but not the person. Badger v. Towle, xlviii. 20. 
 
 6. Under R. S. of 1«57, c. 77, § 8, part 7, the S. .J. Court is authorized to 
 determine from all the provisions of a will, and from extrinsic evidence, 
 whether the testator intended th;\t the executor not expressly appointed 
 trustee, should act as such. Howard v. American P. Society, xlix. 
 
 7. An appeal from the judgment of a magistrate, and the entry of the 
 case in the S. J. Court, gives the latter jurisdiction. Hunter v. Cole, 
 XLIX. 556. 
 
 8. The presence of a presiding judge is essential to constitute a "ses- 
 sion of the Supreme Judicial Court," within R. S. of 1857, o. 82, § 1. 
 First National Bank of Brunswick v. Bime B. F. <Sa M. Ins. Co., lti. 
 
 See Divorce, 1, 8. 
 Equity, 1-17. 
 Probate Court, 37. 
 
 SURETY AND PRINCIPAL. 
 
 I. LIABILITY OF SURETY. 
 n. WHEN DISCHAEGED. 
 III. KEMEDIES. 
 
 I. LIABILITY OP SURETY. 
 
 1. Whenever one having no interest in a promissory note becomes a 
 party to it, at the request and for the accommodation of another, the re- 
 lation of principal and surety exists; and the original holder, between 
 whom and the principal the consideration passed, is presumed to know 
 the fact. And, if such note be transferred after dishonor, the indorsee 
 has implied notice of the fact, and takes it with its equities. Cummings 
 V. Bittle, XLV. 183. 
 
 2. Where ten persons signed a note as sureties for a third, and the 
 holder, having security from the principal of less value than the amount 
 of the note, surrendered it to him, without the assent of the sureties, the 
 principal is still liable for the whole note, and the sureties for the excess 
 above the value of the security surrendered. But being liable for dif- 
 ferent sums if they are all sued in one action, the plaintiff cannot re- 
 cover against any. Cummings v. Bittle, xlv. 183. 
 
 3. If a surety signed a bond after one of the names accepted by the 
 town had been erased, it is immaterial whether he knew it or not, if he 
 did not annex to his act the condition that the bond was not to be de- 
 livered until all had signed. Readfield v. Shaver, l. 36. 
 
 4. It affords a surety on a bond no defense, that it was signed by him, 
 on the promise of the principal that he would procure the signature of a 
 
SURETY AND PRINCIPAL. 499 
 
 certain other person, if the obligee at the time tlie bond was delivered to 
 him had no. knowledge of the promise. York Go. M. F. Ins. Co. v. 
 Brooks, LI. 506. /State v. Feck, liii. 284. 
 
 5. So, if one is induced to sign, supposing a forged name thereon to 
 be genuine, if the obligee is ignorant of the circumstances. York Co. 
 M. F. Ins. Co. V. Brooks, li. 506. 
 
 6. If the forged name be obliterated before the delivery of the bond, 
 the rights of the obligors therein will not be changed, or their liabilities 
 affected thereby. York Co. M. F. Ins. Co. v. Brooks, li. 506. 
 
 7. A bond, perfect upon its face, apparently duly executed by all whose 
 names appear therein, purporting to be signed, sealed, and delivered by 
 the several obligors, and actually delivered by the principal without 
 stipulation, reservation, or condition, cannot be avoided by the sureties 
 upon the ground that they signed it on the condition that it should not 
 be delivered unless executed by other persons, who did not execute it, 
 when it appears that the obligee had no notice of the condition, and 
 nothing to put him on inquiry as to the manner of its execution, and 
 that he has been induced upon the faith of such bond to act to his own 
 prejudice. State v. Peck, liii. 284. 
 
 8. Two or more persons severally signing a promissory note as sure- 
 ties, do not thereby incur a joint liability; and hence they cannot main- 
 tain a joint action against a person under R. S. of 1857, c. 113, § 47. 
 Bunker v. Tufts, lv. 180. 
 
 See Bills, &c., 172. 
 collectok, 5. 
 Practice, 64. 
 Probate Bond, 
 Limitations, &c., 24, 25. 
 
 II. WHEN DISCHAEGED. 
 
 9. A surrender of the principal in court after a forfeiture of a recog- 
 nizance in a criminal case, before final judgment on scire facias, will not 
 release sureties without payment of costs. State v. Burriham, xliv. 278. 
 
 10. The death of a principal in a bond given to release him from ar- 
 rest on execution, within the six months named in the bond, discharges 
 his sureties. Lowell v. Haskell, xlv. 112. 
 
 11. If the holder of a promissory note surrender securities of the prin- 
 cipal to him without the knowledge or assent of the sureties, they are 
 thereby discharged to the amount of the value of the securities thus sur- 
 rendered. Cumminys v. Little, slv. 183. 
 
 12. The neglect of the municipal officers to enforce the collection and 
 paying over of the money until some time aftei-nthe year was out, or to 
 take the tax-bills from the collector, does not release the sureties on the 
 collector's bond. Readfield v. Shaver, l. 36. 
 
 13. The plaintiff, as indorser, paid a note, after a suit had been brought 
 thereon by the indorsee, in which the makers obtained a verdict and 
 judgment in their favor, on the ground that, before the negotiation of the 
 note, the time of payment had been extended without the consent of 
 the sureties. Held, that the plaintiff acquires no right of action against the 
 maker or sureties, for the money paid ; and that the sureties were dis- 
 
500 SWINE. 
 
 charged by the verdict in their favor as against the plaintiff. Durham 
 V. Giles, Lii. 206. 
 
 14. In an action on a promissory note, by the payee against the prin- 
 cipal and surety, the plaintiff testified, and the surety admitted on cross- 
 examination, that the latter requested the plaintiff " to wait on the prin- 
 cipal as long as he could ; " and subsequently the plaintiff gave the 
 principal a written extension for one year. Held, that a valid agree- 
 ment for delay, between the principal debtor and creditor will not dis- 
 charge the surety, if made with his consent and approval ; and that 
 whether the delay was by the request or with the consent of the surety, 
 is a question of fact. Treat v. Smith, liv. 112. 
 
 ni. EBMEDIES. 
 
 15. In an action on a promissory note against several, by a holder hav- 
 ing express or implied notice that some of them are sureties, if the fact 
 be not apparent on the face of the note, it may be proved by parol. 
 Cwnmings v. lAttle, xlv. 183. 
 
 16. A surety on a promissory note, on payment by him, is entitled to 
 be subrogated to all the rights and securities of the holder ; and it is 
 the duty of the holder, having securities, to retain or dispose of them 
 for the benefit of the sureties. Cummings v. lAttle, xlv. 183. 
 
 17. Where a person was collector of taxes for two successive years, 
 and the sureti es onhis bond were not the same for the two years, in a 
 suit on one of the bonds for an alleged default, it is for the defendants 
 to show what part of the deficit belonged to each year. Iteadfield v. 
 Shaver, l. 36. 
 
 See Bankefptcv, 1. 
 Evidence, 108. 
 
 SURVIVING PARTNER. 
 See Peobate Bond. Replevin, 15. 
 
 SWINE. 
 
 1. The owner or possessor of swine must take care at his peril that 
 they do not run at large in the highway without a keeper. Jewett v. 
 Oage, lv. 538. 
 
 2. Where the plaintiff's minor daughter, with a suitable horse and car- 
 riage, and in the exercise of ordinary care, was traveling along a high- 
 way, and the horse, by becoming frightened at the looks of a hog owned 
 by the defendant, and by him permitted to be in the highway without a 
 keeper, occasioned an injury to the daughter and carriage, Held, that the 
 
TAX. 
 
 501 
 
 owner, or he who had control of the hog, was liable for the injury, although 
 he did not know the hog was in the highway at the time of the injury. 
 Jewett V. Gage, lv. 538. 
 
 TAN AND TANNER. 
 
 See Action, 24, 25. 
 
 TAX. 
 
 I. ASSESSMENT. 
 II. ABATEMENT. 
 
 III. SALE OF PERSONAL AND HEAL ESTATE, FOE TAXES. 
 
 IV. EEMEDY FOE ILLEGAL ASSESSMENT. 
 T. EEDEMPTION AND FOEFEITUEE 
 
 1. ASSESSMENT. 
 
 (a) Upon what, assessment may be made. 
 
 (b) 'Wheeb, and to whom, pbopbety is to be assessed. 
 (o) Makxng assessments. 
 
 (a) Upon what, assessment may he made. 
 
 1. The statutes of this State, as they existed in 1865 and 1866, taken 
 in connection with the act of congress of June 3, 1864, c. 106, §§ 40 and 
 41, did not authorize the assessors of a city or town, in which a national 
 bank is located, to assess taxes for State, county, and municipal purposes 
 upon the stocks of such bank owned by non-residents. Abbott v. £an- 
 gor, Liv. 540. Holyoke v. Bangor, liv. 540. 
 
 2. Shares in national banks may be taxed by State authority. Pack- 
 ard V. Lewiston, lv. 456. Stetson v. Bangor, lvi. 274. Abbott v. Ban- 
 gor, Lvi. 310. 
 
 3. R. S. of 1857, c. 6, § 5, authorizing taxes to be assessed upon all 
 "shares in moneyed corporations," includes shares in national banks. 
 Stetson T. Bangor, lvi. 274. 
 
 (b) Where, and to whom, property is to be, assessed. 
 
 4. By R. S. of 1857, e. 6, §§ 99 and 100, improved real estate and per- 
 sonal property enumerated therein, may be assessed to non-residents, and, 
 upon neglect to pay within the time limited, the collection may be en- 
 forced by arrest and imprisonment in the county in which he may be 
 found. Hartland v. Church, xlvii. 169. 
 
 5. A poll-tax cannot be assessed against a non-resident. Hartland v. 
 Church, XLVII. 169. 
 
502 
 
 TAX. 
 
 6. A man cannot have a residence for purposes of taxation in two 
 towns at the same time ; and when a town line passes through the house 
 of a person, his residence will be in the town in which the most neces- 
 sary and indispensable part of his house is situated, especially if the out- 
 buildings and other conveniences be in that town. Judkins v. Reed, 
 XLviii. 386. 
 
 7. To render a non-resident liable to be taxed for merchandise in a 
 store, &c., under R. S. of 1857, c. 11, § 6, his occupancy must be under 
 such circumstances as would constitute him the owner of the premises 
 for the time being. Desmond v. Machiasport, xlviii. 478. 
 
 8. The occupancy of a portion of a wharf, assigned to a non-resident 
 by metes and bounds, to which he brought, from his mills in another 
 town, his lumber, placed it thereon where it remained for sevei-al months, 
 awaiting a sale or shipment, his right thus to use the premises, being (by 
 written lease) fixed and certain for a long peiiod of time, was held an 
 occupancy contemplated by the statute. Desmond v. Machiasport, 
 XLVIII. 478. 
 
 9. If a person has a home established in a town in this State, and goes 
 therefrom for a specific purpose, intending to return whenever that pur- 
 pose shall be accomplished, without making any other place his home for 
 an indefinite time, his residence is not changed ; otherwise, if he. takes 
 up his abode in another place without any present intention to remove 
 therefrom. Church v. Rowell, xlix. 367. 
 
 10. If he acquires a new residence, and leaves it to go to his old home, 
 with the deliberate intention of not returning, and of> abandoning his 
 new residence, then goes to the town of his first residence, as to his for- 
 mer established home, and is there on May 1, having no intention to go 
 to reside in any other particular place as a home, he is subject to taxa- 
 tion in that town. Church v. Rowell, xlix. 367. 
 
 11. But if he leaves in such case, with the intention of returning, and 
 not to abandon his new home, and that intention is retained by him on 
 May 1, he is not a subject of taxation in that town. Church v. Rowell, 
 XLIX. 367. 
 
 12. Where an inhabitant on March 30, left the place of his residence 
 with the intention of residing in another town, but did not reach the lat- 
 ter town until April 2, when and where he established his residence, he 
 was held for taxation in the town of his old residence. Littlefield v. 
 Brooks, L. 475. 
 
 13. Logs, timber, &c., may be taxed under R. S. of 1857, c. 11, § 6, 
 although they may not, on April 1, of the year for which the tax is as- 
 sessed, have actually arrived within the corporate limits of such town, 
 provided they are in tlie course of the year brought there and manu- 
 factured. Ellsworth V. Brown, liii. 519. 
 
 14. The act of congress creating national banks and banking associar 
 tions, requires all taxes assessed by State law on ,the shares of such 
 banks, to be made in the municipal corporation in which the bank is lo- 
 
 . cated. Jadge^ Opinion, liii. 594. Packard v. Lewiston, lv. 456. 
 
 iS. Sections 3 and 4 of c. 126, of the Public Laws of 1867 are incon- 
 sistent with the act of congress and void. Judges^ Opinion, liii. 594. 
 Packard v. Lewiston, lv. 456. 
 
 16. Section 2, c. 126, of the Public Laws of 1867, is consistent with § 
 
TAX. 
 
 503 
 
 41, c. 106 6f the act of congress of June 3, 1864, and must govern in 
 this State so far as place is concerned in the assessment of taxes on 
 shares in national banks. Packard v. Lewiston, lv. 456. 
 
 17. The liability of an estate to taxation relates back to April 1, of 
 each year. Egery v. Woodward, lvi. 45. 
 
 18. To bring thp assessment of a tax upon national bank shares within 
 c. 193 of the Public Laws of 1863, it must be made to appear that the 
 stock was "held by persons out of the State or unknown, and that" it 
 had "not been certified" to or assessed in some place in this State ; or 
 that the stock appeared " by the books of the bank, to be held by some 
 one residing beyond the limits of the State or unknown." -Ahhott v. 
 Bangor, lvi. 310. 
 
 19. The act of congress, approved February 10, 1868, in relation to 
 taxing shares in national banks, had no retroactive effect upon any pro- 
 ceedings previously had under c. 126 of the Public Laws of 1867. .45- 
 hott V. Bangor, lvi. 310. 
 
 20. Nor does it eifect the decision oi Packard y. Lewiston, 55 Maine, 
 456, as to validity or invalidity of the several sections of that chapter. 
 Abbott V. Bangor, i.vi. 310. 
 
 See Assessor, 3. 
 
 (c) Making assessments. 
 
 21. Where the State has conveyed to A. 5000 acres of the south- 
 west corner of a township of land, and to B, the remaining 9000 acres, 
 which last tract was afterwards divided amongst several owners, — the 
 assessn\ent of a State tax, describing the township in two parts, as 
 " S. W. J range 4, No. 6," and " f range 4, No. 6," is void for unceitainty. 
 Adams v. Larrabee, xlti. 516. 
 
 22. An assessment of the township in solido, designating the number 
 and range, would be good, Semble. Adams v. Larrabee, ili.y\. 516. 
 
 23. The description of real estate assessed must be defiuite and cer- 
 tain, or refer to something by which it can be mide certain. Adams v. 
 Larrabee, xlvi. 516. 
 
 24. Where a part of one town has been set off to another, with a pro- 
 viso that the part so set off shall pay their proportion of certain debts 
 and liabilities of the town from which they are separated, to be assessed 
 and collected in the same manner and by the same persons as though 
 the act had not passed, — this does not authorize the assessment and col- 
 lection of a separate tax on that section for the payment of its propor- 
 tion. Winslow V. Morrill, xlvii. 411. 
 
 25. Ill such case the inhabitants of the territory set off cannot be re- 
 quired to pay their proportion of the liabilities sooner than the other 
 part of the town, but are to be assessed at the same time and in the same 
 manner. Winslow v. Morrill, xltii. 411. 
 
 26. Assessors have no power to assess the inhabitants of another towu 
 for property situate in that town ; but the persons set off are to be 
 treated under the provisions of the act, as still inhabitants of the original 
 town, for the purposes of assessment. Winslow v. Morrill, xlvii. 411. 
 
 27. By R. S. of 1857, c. 3, § 10, the board of assessors cannot consist 
 of less than three, "who shall be duly sworn;" and where it does not 
 
504 TAX. 
 
 appear that more than two were thus qualified and acted, the tax as- 
 sessed by them is illegal. WiUiamshurg v. Lord, li. 599. 
 
 28. A commitment prefixed to, and specifically referring to the lists of 
 assessments, and signed by a majority of the assessors, is a sufficient au- 
 thentication, and comf)lianoe with R. S. of 1857, c. 6, § 56. liowe v. 
 
 Weld. HI. 588. 
 
 29. A State tax assessed April 1, 1864, by the assessors of the city of 
 Bangor, to a citizen thereof, upon his shares in a national bank situate 
 therein, and established under the act of congress of February 25, 1863, 
 is constitutional, if levied in the same manner and to the same extent as 
 taxes on other similar property. Stetson v. Sanger, lvi. 274. 
 
 30. Sections 79 to 82 of c.47 of R. S. of 1857, prohibiting the estab- 
 lishment of moneyed corporations unless specially authorized by the leg- 
 islature, do not apply to banking corporations established by authority 
 of congress. Stetson v. Bangor, lvi. 274. 
 
 n. ABATEMENT. 
 
 ■ 31. If a person, who has, upon due notice, presented to the assessors 
 true and perfect lists of his polls, and all his estates, real and personal, 
 not exempt from taxation, &c., refuses to answer all proper inquiries in 
 relation to the nature and situation of his property, and, if required, to 
 subscribe and make oath to the same, he is thereby barred from applying 
 to the county commissioners for any abatement of his taxes. Lamhard 
 V. County Commissiotiers, liii. 505. 
 
 III. SALES OF PERSONAL AND KEAL ESTATE FOE TAXES. 
 
 32. The recitals in a tax-deed, unless made so by statute, are not, in 
 themselves, evidence of a compliance with the statute in making the 
 sale; but the-burdert is upon the party claiming title under such deed to 
 prove, by other evidence, a full compliance with the requirements of the 
 statute. Worthing v. Webster, xlv. 270. 
 
 33. No lapse of time will afford presumptive evidence of the regular- 
 ity of a tax sale, when the purchaser, and those claiming under him, have 
 had no possession under the deed. But an ancient deed and its recitals, 
 with subsequent, long continued and uninterrupted possession, are evi- 
 dence from which a compliance with the requirements of the statute 
 may be presumed. Such question is one of fact. Worthing v. Webster, 
 XLV. 270. 
 
 34. The term " highest bidder," used in statute authorizing collectors 
 to sell real estate for unpaid taxes, means the one who will pay the tax, 
 &c., for the least quantity of land. JjOvejoy v. I/unt, XLvni. 377. 
 
 35. Such sale of the real estate of a resident is invalid, unless the col- 
 lector's return shows that he gave the owner or occupant ten days' no- 
 tice of the time and place of sale. Lovejoy v. Lunt, xlviil 877. 
 
 36. A sale of real estate, by a collector, is invalid if the whole tract is 
 sold, and he does not certit'y, in his return to the town clerk, that it was 
 necessary to sell the whole to pay the taxes, &c. Lovejoy v. Lunt, XLVin. 
 377. 
 
TAX. 605 
 
 37. A collector can sell property distrained for the payment of taxes 
 only by virtue of a legal warrant issued by the proper authorities; and 
 a warrant signed by only two assessors, without any evidence that a 
 third one was chosen and sworn, will not justify the sale, Sanfason v. 
 Martin, lv. 110. 
 
 IV. REMEDY FOE ILLEGAL ASSESSMENT. 
 
 38. If one under duress, pays a tax wrongfully assessed against him, 
 and the money has gone into the town treasury, he may recover the 
 amount, in an action against the town, without first making a special de- 
 mand therefor. Look v. Industry, li. 375. 
 
 39. The payment of an illegal tax assessed upon national bank shares, 
 for the purpose of preventing the seizure and sale of them by the collec- 
 tor, is not a voluntary payment. Abbott v. Bangor, lvi. 310. 
 
 40. The right of tax-payers to recover back a tax paid under a pro- 
 test, must be determined by the law as it was when the tax was assessed 
 and paid. Abbott v. Bangor, lti. 310. 
 
 See Assumpsit, 36. 
 
 V. EBDEMPTIOHr AND EOEPEITUEE. 
 
 41. By c. 123 of the Pub. Laws of 1844, a stranger had no right to 
 pay the tax on real estate, when the collector had returned the lists of 
 "unpaid assessments until after sixty days from the town treasurer's first 
 notice. But, where such a payment was made by a stranger, before the 
 expiration of the sixty days, and the property was not redeemed, it 
 seems that the money having remained in the treasurer's hands, might 
 be considered as having been paid afterwards when the right to pay had 
 accrued. Wyman v. Smith, xlv. 522. 
 
 42. But when the tax still remained unpaid by the owner for the term ' 
 of two years from the date of the assessment, it was the duty of the 
 treasurer to advertise the same a second time; and if this was not done, 
 there was no forfeiture. Wyman v. Smith, xlv. 522. 
 
 43. Where land is claimed by forfeiture for non-payment of taxes un- 
 der the act of 1844, the tenant is not precluded from contesting the 
 legality of the assessment and the subsequent proceedings to enforce the 
 same, although he has not paid or tendered the amount of tax, &c., as 
 provided by R. S. of 1857, c. 6, § 145, which relates to sales of lands and 
 not to forfeitures. Williamsburg v. Lord, li. 599. Stetson v. I>ay, li. 
 434. .t' 
 
 TAX, REVENUE. 
 See LiQuoE, 60. 
 
506 
 
 TENDER. TIMBEE. TIME. 
 
 TENANTS IN COMMON. 
 See Joint Tenants, &c. Paetneeship, 7. 
 
 TENANT AT WILL. 
 See Landloed, &c., 1-10, 14, 15, 19, 21, 23, 25-29-33. 
 
 TENDER. 
 
 After an action has been commenced upon a mortgage, a tender of 
 the amount to discharge it should include the costs. To make the ten- 
 der, if refused, of any avail, the money should be brought into court, af- 
 ter the action has been entered. Marshall v. 'Wing, l. 62. 
 
 See Action, 37. 
 
 Contract, 12, 13. 
 Equity, 50. 
 Law and Fact, 21. 
 Mortgage, 80, 82, 96, 107. 
 School District, 10. 
 Trovee, 8. 
 
 TIMBER. 
 
 In a contract for the purchase of " timber," the purchaser acquires no 
 title to trees not suitable for any purpose but fire-wood. Nash v. Dris- 
 co, LI. 417. 
 
 See Evidence, 115. 
 
 Land Agent, &c, 3, 4, 5, 6, 7. 
 Practice, 58, 59, 60. 
 
 TIME. 
 
 1. In computing the time for creditors to become parties to an assign- 
 ment, the day of the publication of the notice should be excluded, "after" 
 and "from" being words, of exclusion. Page v. Weymouth, xLvri. 238. 
 
TITLE TO PERSONAL AND KEAL ESTATE. 507 
 
 2. By R. S. of 1857, c. 1, § 3, the act of 1862, c. 155, became effective 
 in thii'ty days after the recess of the legislature enacting it ; and in com- 
 puting the time, the day on which the legislature adjourned is to be ex- 
 cluded. Simmons v. Jacobs, lii. 147. 
 
 See Assignment, 19. 
 
 Condition, 9. 
 
 Corporation, 27, 39, 40. 
 
 Costs, 35, 37, 38, 39, 40, 41, 44. 
 " Devise, &c., 22. 
 
 Execution, 43. 
 
 Soldiers' Aid, 13. 
 
 TITLE TO PERSON A.L AND REAL ESTATE. 
 
 I. PERSONAL ESTATE. 
 n. EEAL ESTATE. 
 
 1. PEESONAL estate. 
 
 1. V. purchased boards of H. & Co., and delivered them to C. who 
 paid the purchase-money to H. & Co., and took V.'s notes for the same, 
 with an agreement thut the lumber should remain the property of C. 
 until the notes were paid. Seld, that C. being in possession, could hold 
 it agaiBSt V. and his creditors. Coe v. J3ichnell, xliv. 163. 
 
 2. If a permit by the land-agent has been void, and the holder a tres- 
 passer, his creditor, attaching the timber cut under color of it, would 
 have no better title than his assignee or vendee. Mason v. Sprague, 
 XL VII. 18. 
 
 3. Where a holder assigned the permit and the logs he had cut under 
 it, and his assignee assigned the same to a third person, who took and 
 retained for two months undisturbed possession of the logs cut before the 
 first assignment, such possession was suiEcient to perfect the title of the 
 second assignee, although there had been no formal delivery in either 
 case. Mason v. JSprague, xlvii. 18. 
 
 4. When an article is manufactured to order, the manufacturer fur- 
 nishing the materials, it continues to be his property until completed and 
 delivered or tendered. I'ettengill v. Merrill, xlvii. 109. 
 
 5. A party showing no title to personal property cannot impeach that 
 of his opponent by proving a want of consideration. Wyman v. Gould, 
 xlvii. 159. 
 
 6. When property is held as security for the payment of certain notes, 
 the title to it is not changed so long as any of the notes remain unpaid. 
 Hotchkiss v. Sunt, xlix. 213. 
 
 7. The possession of a chattel continued for ten years under claim of 
 ownership, will not, of itself, vest title therein. It would be evidence 
 tending to show title. As against one having such possession, a deliv- 
 ery by the true owner is not essential to vest title in the vendee. Moul- 
 ton V. Lawrence, l. 100. 
 
508 TITLE TO PERSONAL AND REAL ESTATE. 
 
 8. The ownership of split stone lying upon land taken for a highway 
 is not affected by the location, and the officers of the town have no right 
 to take such stone with which to construct a culvert across the highway. 
 Small V. Danville, li. 359. 
 
 9. A mere change of property from one form to another cannot, in it- 
 self, devest the owner, or those who have distinct and immediate rights 
 in the thing in its original shape, of their property in it. MoLarren v. 
 Brewer, li. 402. 
 
 10. Generally in such cases, the right attaches to the property in its 
 new form, so long as it is capable of being identified, and no rights of a . 
 bona fide purchaser for a valuable consideration, without notice, inter- 
 vene. McLarren v. Brewer, li. 402. 
 
 11. Thus if the mortgager of a vessel, without the mortgagee's assent, 
 sell it with warranty of title, and receive as consideration promissory 
 notes, the mortgagee may elect to enforce his right to the vessel, or fol- 
 low in equity the proceeds in the notes. McLarren v. Brewer, li. 402. 
 
 12. Possession is ^nma yocie evidence of title to personal property. 
 Ylning v. Balcer, liii. 544. 
 
 See Agency, 11, 12. 
 
 ExEOUTOE, &c., 14, 15. 
 
 II. TITLE TO REAL ESTATE. 
 
 13. The line of one whose land is bounded by the road, will not be 
 changed by a new location of the road ; for the establishment of a road 
 cannot give him title to land, in which before he had none. Chadwich 
 V. Mc Causland, xlvii. 342. 
 
 13. One who bids ofl^ at aland sale of State. lands, a township of land, 
 but takes no deed, acquires no right to the land, nor to cut any timber 
 thereon. State v. Patten, xlix. 383. 
 
 15. Having contracted to purchase a farm, F. erected buildings 
 thereon, and after thirteen years' occupation, abandoned the farm, which 
 the owner afterwards sold and conveyed to R., against whom F. brought 
 trover for conversion of the buildings, R. having sold and conveyed the 
 farm to another person, Mdd, that the buildings passed to R. as part 
 of the real estate, notwithstanding R.'s grantor may have verbally agreed 
 with F. that they were personal property. Fenlason v. Backliff, l. 362. 
 Semenway v. Cutler, li. 407. 
 
 16. If an execution is extended upon land of the debtor, and it is set 
 off to the creditor in satisfaction of the judgment which is afterwards re- 
 versed upon a writ of error, the debtor is entitled to the land again ; and 
 he may recover it of one who purchased it of the creditor before the re- 
 versal of the judgment, without notice of any defect therein; or, if he 
 has not been evicted, such grantee, of the creditor cannot maintain an ac- 
 tion to recover it of him. Bryant v. Fairfield, li. 149. 
 
 17. Erections made by one occupying land under a bond for a deed 
 are to be regarded as real estate, and are not removable by the occupant 
 as personal property. Memenwcey v. Cutler, li. 407. 
 
 18. Where a person has executed a contract for the conveyance of cer- 
 tain premises to a subsequent tenant under whom the defendant claims, 
 
TOLL-BRIDGE. TOWN. 509 
 
 the party holding such contract as valid, possesses the premises de- 
 scribed therein in subjection to the one having the title. Peabody v. 
 Hewett, HI. 33. 
 
 19. Where a title is claimed to be in the father, because of the death 
 of his son, not only the death of the son must be shown, but also that he 
 died without issue. Stinchfield v. Emerson, lil 465. 
 
 20. Where one has title and possession of land, he is presumed to 
 claim by his title, and not by wrong. MouUon v. Edgcomh, lit. 31. 
 
 TOLL-BRIDGE. 
 
 1. In the absence of any specialprovisions in the charters of toll-bridge 
 corporations, there seems to be no essential difference between the obli- 
 gations and liabilities resting upon such corporations and those of a town 
 charged with the maintenance of a bridge. Orcutt v. Kittery Point 
 Bridge Co., mi. 500. 
 
 2. Toll-bridge corporations are not bound to erect and maintain rail- 
 ings on their bridges for travellers to lean against or rest upon while they 
 stop to recover from fatigue ; and, if a person uses them for such pur- 
 pose, he does it at his own risk. Orcutt v. Kittery Point Bridge Co., 
 LIIL 500. 
 
 TOWN. 
 
 I. POWERS AND LIABILITIES. 
 
 n. MEETINGS, 
 
 in. TOWN OEFICEBS. 
 
 IV. DIVISION OF TOWNS. 
 
 V. TOWN LINES. 
 
 I. POWERS AND LIABILITIES. 
 
 1. A city or town is not responsible in damages for the acts of a per- 
 son claiming to be pound-keeper, done before the approval of his official 
 bond. Eounds v. Bangor, xlvi. 541. * 
 
 2. The town from which a person is legally committed to the insane 
 hospital is authorized by statute to recover the expenses incurred of the 
 town in which such person has his legal settlement. Jay v. Carthage, 
 XLvin. 353. 
 
 3. Towns and other public corporations are not liable for the unau- 
 thorized or wrongful acts of their officers, though done in the course and 
 within the scope of their employment. Small v. Danville, li. 859. 
 Mitchell V. Rockland, lii. 118. 
 
 4. Thus, a town is not liable for the tortious use by a highway sur- 
 
510 TOWN, 
 
 veyor of split stone for the purpose of constructing a culvert across a 
 highway, such stone being found upon the land taken for the highway. 
 Small V. Danville, li. 359. 
 
 5. A town has no authority to raise money to pay the commutation to 
 relieve men drafted, or liable to be drafted into the military service of 
 the United Stutes; and no subsequent legislation has ratified such action. 
 Barbour v. Camden, li. 608. Judges^ Opinion, lii. 595. 
 
 6. As a general rule, municipal corporations are not liable to a suit, 
 except when the right of action is given by statute. Mitchell v. Hock- 
 land, m. 118. 
 
 7. Neither a town nor its officers have any right to impress private 
 property, except so far as the right is cotifen-ed by statute. Mitchell v. 
 Rockland, xlv. 496. Mitchell v. Rockland, lit. 118. 
 
 8 The consent of the owners of a vessel to the appropriation of it for 
 a hospital by the health officers of a town, does not render the town lia- 
 ble for any injuries caused by the negligence of such officers while they 
 were in possession. Mitchell v. Rockland, lii. 118. 
 
 9. Neither the relation of master and servant, nor of principal and 
 agent exists between a town and its health or police officers, nor is a 
 town liable for their unlawful or negligent acts. Mitchell v. Rockland, 
 m. 118. 
 
 10. It seems a city government cannot legally ratify the negligent, 
 careless, or tortious acts of their officers, knowing them to be such, so as 
 to make the city Hable therefor. Mitchell v. Rockland, lil 118. 
 
 11. The payment of a bill by a city government to one employed by 
 the health officers is no evidence that the city government had knowl- 
 edge that the services, for which the payment is made, were so negli- 
 gently performed as to injure others; or that the negligent acts of the 
 employee were approved or sanctioned. Mitchell v. Rockland, lii. 118. 
 
 12. Towns as such, in their corporate capacity, are under no obliga- 
 tions to provide for the public defense. Military service is due from the 
 citizen to the country, and is not rendered in behalf of his town. And 
 the adoption of town boundaries, as convenient limits of the sub-districts 
 in raising the quota of the State, imposed no new duties upon municipal 
 corporations. Alley v. Edgecomb, liii. 4-46. 
 
 13. Hence, if, in conformity with the regulations of the service, a town 
 use the name and appropriate the service of one of its citizens already 
 in the service, without his knowledge or consent, to fill its quota, it does 
 not thereby raise an implied promise to pay for his service. Alley v. 
 Edgecomb, liii. 446. 
 
 14. Towns were not authorized by chapters 226 or 227 of the Public 
 Laws of 1864, to purchase "marine credits" with which to fill their quo- 
 tas. Neither does c. 298 of the Public Laws of 1865, ratify such pur- 
 chase. Barker v. Dixmont, liil 575. 
 
 15. The words " and for other necessary town charges," as used in R. S., 
 c. 3, § 26, authorize towns to employ a reasonable number of agents or 
 attorneys to advance or protect the rights of the former, before any legal- 
 ly constituted tribunal ; they do not authorize a town to raise and ex- 
 pend money to send lobbyists to the legislature. Frankfort v. Winter- 
 port, Liv. 250. 
 
 16. Prior to and including the year 1864, no town had any lawful author- 
 
TOWN. 
 
 511 
 
 ity to contract with substitute brokers for the furnishing of men to fill its 
 quotns ; and none of the statutes enacted since that time has authorized, 
 or ratified, or confirmed such a contract, and the town can maintain no 
 action for breach on such a contract. Concord v. Delaney, lvi. 201. 
 
 See Action, 5, 19. 
 
 Insane Hospital, 5, 6. 
 
 n. MEETINGS. 
 
 (a) WABKANT and EBTURir, AND MEETINGS. 
 
 (b) Votes. 
 
 (a) Warrant and return, and meetings. 
 
 17. Towns may adjourn tcvn-raeetings from time to time, and place 
 to place, as they may think proper. Hathaway v. Addison, xlviii. 440. 
 
 18. To render the doings of a town-meeting legal, it should appear 
 that attested copies of the warrant for the meeting were posted in pub- 
 lic and conspicuous places, and that the places of posting were within 
 the town. JBrown v. Witham, li. 29. Clark v. Wardwell, lv. 61. Ham- 
 ilton V. Phipshurg, lv. 193. Allen v. Archer, xlix. 346. Lewey's Island 
 JR. B. Co. V. Bolton, xLvm. 451. 
 
 19. If a majority of the selectmen were never requested to call a town- 
 meeting, it cannot be said they " unreasonably refuse," within the mean- 
 ing of R. S. of 1857, c. 3, § 4. Southard v. Bradford,' jaii. 389. 
 
 20. A town-meeting, called by the justice of the peace, without an 
 unre.asonable refusal by the selectmen, is illegal. Southard v. Bradford, 
 Lin. 389. 
 
 21. If a town "has appointed by vote, in legal meeting, a different 
 mode" of notifying its meetings, it is incumbent upon the parly desiring 
 to establish the legality of the meeting, to show it was called in accord- 
 ance with the mode prescribed by the town. Clark v. Warduiell, lv. 61. 
 
 22. The return on a warrant calling a town-meeting must bear the 
 sign manual of the constable who executed it. It is not enough that his 
 name was written at his request, in his presence, after having heard it 
 read. Chapman v. Limerick, lvi. 390. 
 
 (b) Votes. 
 
 23. If, in the vote of the town raising money for commutation, there 
 was embraced also provision for the payment of bounty to men drafted, 
 or their substitutes, who were mustered into service, the act of Feb. 20, 
 1864, has made such provision valid ; and as that part of the vote which 
 has been made valid is, without difficulty, separable from that which is 
 illegal, the vote is so far operative. Barbour v. Camden, li. 608. 
 
 24. A vote of a town, describing a school district, as " all the territory 
 between " two given lines, is not so defective that the vote will be held 
 void. Allen v. Archer, xlix. 346. 
 
 25. The court will not presume a town intended to ratify the proceed- 
 ings of a meeting illegally called, unless it use language so clear and. ex- 
 plicit as to leave no doubt of its purpose. Southard v. Bradford, Lin. 
 389. 
 
512 TOWN. 
 
 26. In December, 1863, the plaintiff enlisted in the navy, served three 
 years, and was honorably discharged. In August, 1864, the defendant 
 town, at a legal meeting and under a proper article, "voted, that the 
 town shall raise a sum of money sufficient to fill its quota under the call 
 of the president in 1864, provided the men can be procured for $300 each 
 from the town." Held^ that the vote was prospective and did not apply 
 to those who enlisted before the call. Alley v. Edgecomb, Lin. 446. 
 
 27. A vote to " raise $6000 for men to fill our quota," and that a cer- 
 tain person named " be a committee to pi-ocure men," does not authorize 
 the committee to purchase marine credits. Barker v. Dixmont, Lin. 575. 
 
 28. A vote to " accept, and pay S. A. B. $435 each for ten men for three 
 years' service, that S. A. B. give security that those men shall continue 
 in the army three years, unless sooner discharged, or refund the money," 
 applies to men and not to marine credits, and that the giving of security 
 was a condition precedent. Barker v. Dixmont, Lm. 575. 
 
 29. The vote of a town adopting or ratifying the proceedings of a prior 
 illegal meeting, can be regarded as adopting or ratifying such proceed- 
 ings only to the precise extent indicated by such vote. Samilton v. 
 PJiipshurg, lv. 193. 
 
 30. A town may, at the same or subsequent meeting duly called for 
 that purpose, rescind a vote previously passed, whenever the rights of 
 others interested have not intervened. OeteheU v. Wells, lv. 433. 
 
 See Constitutional Law, 31. 
 
 III. TOWK OFFICERS. 
 
 (a) ELBCTIOir AND QTJALIFICATIOIT. 
 
 (b) POWBBS AND DTJTrES. 
 
 (a) Election and qualification, 
 
 31. From the known practice of towns to choose but three selectmen, 
 it will be presumed that that number was chosen, unless the contrary 
 appear. Jay v. Carthage, xlvhl 353. 
 
 32. When the record is silent on the subject, parol evidence, that the 
 moderator of a town meeting was sworn, should be of a direct and posi- 
 tive character. Chapman v. Limerick, lvi. 390. 
 
 (b) Powers and duties. 
 
 33. Where a vessel is subject to quarantine regulations, the officers of 
 the town are not authorized to appropriate any part thereof for a hospi- 
 tal, or to exclude the owner from the possession or control of any part 
 of the vessel. Mitchell v. Rockland, xlv. 496. Mitchell v. Rockland, 
 LH. 118. 
 
 34. When a notice is signed by the selectmen of a town from which a 
 person has been legally committed to the insane hospital, and it does not 
 appear that other persons had been chosen overseers of the poor, it will 
 be presumed that the selectmen acted in that capacity, and the notice 
 will be held sufficient. An analogous presumption will be entertained 
 when the notice is directed to the selectmen of the defendant town. Jay 
 V. Carthage, xlviii. 353, 
 
TOWN. 
 
 513 
 
 35. The signature of one selectman to a written contract cannot bind 
 the town. Richmond v. Johnson, liii. 437. 
 
 IV. DIVISIOIT OF TOWNS. 
 
 36. If a town is divided, and part of its territory, with the inhabitants 
 thereon, is incorporated into-a new town, the old town will retain all the 
 property, and be responsible for the existing liabilities, unless there is 
 some legislative provision to the contrary. JST. Yarmouth v. Skillings, 
 XLV. 183. 
 
 37. In regard to property so held in trust, whether the legislature, by 
 dividing the town, without making any such provision, could deprive a 
 part of the inhabitants of their accustomed use, quoere. JV. Yarmouth 
 V. Skillings, xlv. 133. 
 
 38. An original town, a part of the territory of which has been set off 
 and incorporated as a new town, still retains all its property, powers, 
 rights, and privileges, and remains subject to all its obligations and du- 
 ties, unless otherwise provided in the act authorizing the separation. 
 Frankfort v. Winterport, liv. 250. 
 
 39. An act of separation providing that the " town farm " of the origi- 
 nal town "shall belong to" the new town, does not transfer the personal 
 property being on the "town farm," belonging to the original town. 
 Frankfort v. Winterport, liv. 250. 
 
 40. By § 2, c. 422 of Special Laws of 1860, the right of collecting the 
 " unpaid taxes " of the original town was retained therein. Frankfort 
 V. Winterport, lit. 250. 
 
 See CoNSTiTUTiOH-AL Law, 23, 25. 
 
 V. TOWN LINES. 
 
 41. The validity and efficacy of the proceedings of commissioners ap- 
 pointed by virtue of R. S. of 1857, c. 3, § 30, to " ascertain and deter- 
 mine " town lines in dispute, must be determined upon the facts appear- 
 ing in the report; and if the report does not "ascertain and determine" 
 the line, the " controversy " is not terminated, and commissioners may 
 be appointed on a new petition. Lisbon v. Bowdoin, Lni. 324. 
 
 42. A report declaring that the commissioners do " award and deter- 
 mine " that a certain defined line " shall be the true boundary," &c.j does 
 not make it certain that they did not establish a new line, instead of as- 
 certaining and renewing the old one, and hence is insufficient. Lisbon v. 
 Bowdoin, Lni. 324. 
 
 TOWN TREASURER. 
 See Tax, 41, 42. 
 33 
 
514 
 
 TRESPASS. 
 
 TREES. 
 See Deed, 39, 108. Timbek. 
 
 TRESPASS. 
 
 I. WHEN THE ACTION "WILL LIE. 
 II. PLEADING AND PUACTICE. 
 lU. EVIDENCE. 
 
 I. "WHEN THE ACTION WILL LIB. 
 
 (a) Foe injukies to eeal estate. 
 
 (b) For injukies to personal estate. 
 
 (c) Fob injuries under process op law. 
 
 (d) Foe personal injuries. 
 
 (a) For injuries to real estate. 
 
 1. Trespass quare clausum will lie in favor of one tenant in common 
 against his co-tenant to recover treble damages provided for in R. S. of 
 1841, c. 129, § 7. Mills -v. Richardson, xi.iv. 79. 
 
 2. It will not lie against an occupant of land whose possession has 
 been of such a character and continuance, as to entitle him to better- 
 ments under R. S. of 1841, c. 145, for acts done during such possession. 
 Cressey v. Bradford, xlt. 16. 
 
 3. In trespass against several defendants, the verdict may be against 
 any or all. Gillerson v. Small, xlv. 17. 
 
 4. If one passing over a road subject to bars removes them, he does 
 not thereby become a trespasser ab initio, it being a mere nonfeasance. 
 Hinks V. Sinks, xlvi. 423. 
 
 5. Where no application has been made to county commissioner to es- 
 timate the damages caused by taking land by a railroad location, an ac- 
 tion of trespass, brought within three years next after the location, 
 against the company or its agent, cannot be sustained. Davis v. Bus- 
 sell, xLvii. 443. 
 
 6. The grantor may maintain trespass against the grantee or his as- 
 signee, who cuts and carries away any of the pine trees and timber re- 
 served in the deed, although the cutting be more than twenty years af- 
 ter the execution and delivery of the deed. Goodwin v. Hubbard^ 
 XLVII. 595. 
 
 7. Where the debtor in an execution holds the legal record title to 
 the real estate, neither he nor his tenant, nor any person holding under 
 him, can maintain trespass against an officer, or the creditor, for entering 
 upon such real estate, and levying the execution thereon. Knight v. 
 Mayberry, xlviii. 158. 
 
 8. Neither the owner of real estate in his life- time, nor his adminis- 
 
TRESPASS. 
 
 515 
 
 trator, after his death, can maintain trespass against a person who has 
 entered upon and occupied it with the owner's consent. Shaw v. Mus- 
 sey, xLviii. 247. 
 
 9. Placing a shaft from one building to another, across a passage-way, 
 of which another person owns the fee, is a trespass, although the shaft 
 passes under a bridge or platform, and does not interfere with the use 
 of the passage ; and an action will lie therefor. Esty v. Baker, xltiii. 
 495. 
 
 10. The prevention of the doing an unauthorized and unlawful act, 
 does not constitute a good cause of action, on the part of the incipi- 
 ent wrong-doer. Bangor 0. S M. It. B. Go. v. Smith, xlix. 9. 
 
 11. The plaintiff corporation brought a special action on the case 
 against the defendant, for preventing their constructing a branch track 
 across a public highway, where they were not legally authorized so to 
 construct it, Held, that the action was not maintainable; that if the de- 
 fendant wrongfully entered upon the land of another to prevent the con- 
 struction of such branch railway, he would be liable to the owner in 
 trespass. Bangor 0. & M. B. B. Co. v. Smith, xlix. 9. 
 
 12. Trespass quare clausum cannot be maintained by a mortgagee of 
 a farm, befoi-e entry for condition broken, against one holding under the 
 mortgager, and cutting and taking off the grass growing thereon ; for 
 thereby, neither the estate nor the mortgagee's security is impaired. 
 Hewes v. Blckford, xlix. 71. 
 
 13. And if the defendant does nothing recognizing the relation of 
 landlord and tenant, betvyeen the mortgagee and himself, the fact that 
 the mortgager notified him to quit the premises, which he held as his 
 tenant at will, gives no right to maintain trespass. Sewes v. Bichford, 
 XLIX. 71. 
 
 14. Since all are principals it is immaterial whether the acts constitut- 
 ing the trespass declared on were committed by the defendant, or some 
 person acting under his direction. Allen v. Archer, xlix. 346. Wood- 
 bridge V. Conner, xlix. 353. 
 
 15. Trespass quare clausum does not lie against a street commissioner 
 duly authorized by a city council to construct a street within their juris- 
 diction, laid out by their action on a petition in due form. Gay v. Brad- 
 street, XLIX. 580. 
 
 16. Evidence that individual members of the council voted in favor of 
 the street, because a party interested had tendered a bond that he would 
 pay the costs and dan[iages, is insufficient to support trespass. Gay v. 
 Bradstreet, xlix. 580. 
 
 17. A tenant at sufferance cannot maintain trespass quare clausum 
 for a peaceable entry. Esty v. Baker, l. 325. 
 
 18. A tenant who has been in possession for years, may maintain tres- 
 pass against an intruder without title. Black v. Grant, l. 364. 
 
 19. Where, by the fraudulent representation of a purchaser, a horse 
 has been sold and delivered, the vendor, having seasonably rescinded the 
 sale, may peaceably enter into the stable of the fraudulent vendee, if not 
 forbidden, and take the horse, without being guilty of trespass quare 
 clausum. Wheelden v. Lowell, l. 499. 
 
 20. The disseverance and removal of machinery attached to a mill by 
 
616 TRESPASS. 
 
 spikes, bolts, and screws, and operated by belts from the permanent 
 shafting, driven by the water-wheel under the mill, and the incorporation 
 of it with another mill, by one of the co-tenants, without the assent of 
 the other, is such a practical destruction of the common property, that 
 an action of trespass may be maintained by the latter against the former. 
 Symonds v. Harris, li. 14. 
 
 21. If, in a writ of entry, there was a claim for mesne profits, and the 
 tenant claimed, and he was allowed for betterments, trespass for rents 
 and profits from the date of the writ in the former suit to the time the 
 demandant was put in possession, is maintainable. Soper v. Pratt, li. 
 558. 
 
 22. Although the owner of land, while disseised, cannot maintain an 
 action of trespass against the disseisor, he may, at any time within 
 twenty years from the time of disseisin, reenter and maintain the action 
 for trespass subsequently committed. Abbott v. Abbott, xi. 575. 
 
 23. If both parties ar6, in some sense, in possession, such mixed pos- 
 session enures to the benefit of him holding the legal title. Abbott v. 
 Abbott, LI. 575. 
 
 24. The fact that the defendant has been in possession for six years, 
 claiming title, and has cultivated the land, and made improvements 
 thereon, does not affect the plaintiff's right to maintain such action. 
 Abbott V. Abbott, li. 575. 
 
 25. The plaintiff, owning a lot of land in Portland, in 1820, purchased 
 the necessary materials, including granite curbstones, and, with the con- 
 sent of the city authorities, constructed, at his own expense, a sidewalk 
 in front of his premises. In 1855, the city constructed a drain culvert 
 under the out^r edge of the sidewalk, and, for that purpose, took up the 
 said curbstones, substituting others, and sold the former, the defendant 
 assisting in carrying them away. Held, that the defendant was liable to 
 the plaintiff, in trespass, for the value of the curbstones. Muzzey v. 
 Davis, Liv. 361. 
 
 26. Possession alone, although for a less time than twenty years, is 
 sufiicient to maintain trespass quare clausum against everybody who 
 has not the legal title or the permission of the owner. Z,ook v. Norton, 
 LV. 103. 
 
 See CoBPOEATioN, 5. 
 Costs, 48. 
 
 (b) For injuries to personal estate. 
 
 27. In trespass de bonis against a sheriff, in which he is directly 
 charged, the declaration will be supported by proof that the alleged 
 trespass was committed by one acting as his deputy, for whose mis- 
 feasance he is by law answerable, although there is no such averment. 
 Pratt V. Bunker, xlt. 569. 
 
 28. Possession of personal property is sufficient to entitle the possessor 
 to maintain an action of trespass against a mere wrong-doer, who shows 
 no titW. Craig v. Gilbreth, XLvn. 416. 
 
 29. So is the right totake immediate possession sufficient. Staples v. 
 Smith, xLvm. 470. . ■ 
 
 30. Where the owner agrees to let his chattel remain in the possession 
 
TRESPASS. 
 
 517 
 
 of another "until called for," he may maintain trespass, without proof 
 that he hfis "called for" it, against one who has wrongfully taken it 
 from the bailee. Staples v.^Smith, xltiii. 470. 
 
 31. A person in possession of lands, and having the equity of redeem- 
 ing the same fi-om a mortgage, represents the title of the mortgager, and, 
 like the mortgager, would be liabfe to the mortgagee in trespass, if he 
 remove buildings from the premises, erected with the consent of the 
 owner of the soil, but with the express or implied agreement that they 
 shall remain a part of the freehold. Hamphreys v. Newman, li. 41. 
 
 32. When the owner of a shade-tree finds another's horse hitched to 
 it, he may immediately remove him to a place of safety, without being 
 guilty of trespass. Oilman v. Emery, lit. 460. 
 
 (c) For injuries under process of law. 
 
 33. Where personal property has been attached and appraised under 
 § 47, c. 81, R. S. of 1857, a sale thereof b)' the officer, before four days 
 from tlie appraisement, is unauthorized, and he thereby becomes a tres- 
 passer ab initio. Kfdght v. Herrin, xlviii. 633. 
 
 34. In trespass de bonis against an officer, where he fails to justify the 
 taking and conversion of property attached, in the absence of proof of 
 judgment rendered in the suit, or that the property has been applied to 
 the payment of the claim sued, he shows no cause for reduction of dam- 
 ages. Knight v. Herrin, xlviii. 533. 
 
 35. An officer may attach, and sell on execution the right of one of 
 several copartners in the goods of the firm, for his individual debt ; and, 
 as incidental to this right, the officer may deliver the whole of the goods 
 seized to the purchaser. Moore v. Pennell, lii. 162. 
 
 36. But if the officer sell the entire property, in the goods, he will be- 
 come a trespasser ab initio, and the remaining members of the firm may 
 maintain trespass against him, and recover the full value of the goods. 
 Moore v. Pennell, lii. 162. 
 
 87. The mortgagee of an apothecary's stock, consisting in part of in- 
 toxicating liquors, cannot maintain trespass de bonis against an officer 
 for attaching the stock covered by the mortgage, as the property of the 
 mortgager, unless the latter was duly licensed under c. 33 of the Pub. 
 Laws of 1858. Hay v. Parker, lv. 355. 
 
 38. The owner of intoxicating liquors held in this State, and intended 
 for illegal sale in this or another State, may maintain trespass de bonis 
 against the unauthorized conversion of them by a sheriff, acting by his 
 deputy, under color of his office. Hamilton v. Goding, lv. 419. 
 
 (d) Personal injuries. 
 See Damages, 5, 6, 7, 8. 
 
 ir. PLEADING AND PEACTICE. 
 
 39. If, in trespass, the defendant neglect to file his plea, and the 
 parties go to trial without any issue joined, a verdict for the plaintifi', 
 
518 TRESPASS. 
 
 recovered as upon the general issue, will not be set aside for that cause, 
 on motion of the defendant. Maxwell v. Potter, xlvii. 487. 
 
 40. In trespass qnare clausum, the court cannot restrict the plaintiff's 
 proof to any less number of lots than he has described in his declara- 
 tion. Gardner v. Gooch, xlviii. 487. 
 
 41. A tender of damages, made after an action of trespass is brought 
 against the building committee, will be no justification lor the defend- 
 ant. Storer v. JSobbs, lii. 144. 
 
 42. "When the plaintiffs, in the trial of an action of trespass quare 
 clausum, introduce testimony tending to show joint possession in them- 
 selves, and the defendant to the contrary, the presiding judge cannot 
 legally instruct the jury that the action is maintained, and direct them 
 to find nominal damages. Storer v. Hobbs, lii. 144. 
 
 43. So, in such a trial, between a tenant at will and an ofiicer for ille- 
 gally ejecting the former and his wife, and removing their furniture from 
 the house occupied under the tenancy, — an instruction authorizing the 
 jury, in their assessment of damages, to find " a reasonable compensation 
 to the plaintiff and wife for injury to their feelings in being removed," is 
 erroneous. Smith v. Grant, lvi. 255. 
 
 III. EVIDENCE. 
 
 44. To maintain trespass, the plaintiff must show that he has actual or 
 constructive possession of the property sued for; and the defendant is 
 not put to his justification until the fact of possession is established by 
 the plaintiff. Howe v. Farrar, xlit. 233. 
 
 45. One who relies wholly upon constructive possession arising by im- 
 plication of law, from the alleged fact that the legal title is in him, must 
 first establish his title, or he is left without possession and basis of action. 
 Howe V. Farrar, xliv. 283. 
 
 46. When, to prove his title, the plaintiff introduced a mortgage from 
 F. to himself, and the defendant replies that the plaintiff thereby ob- 
 tained no title and consequently no constructive possession by the mort- 
 gage, because F. had previously devested himself of the title by a mort- 
 gage to B., the latter mortgage is admissible to show that fact. Howe v. 
 Farrar, xliv. 233. 
 
 47. It is not necessary to prove as laid the time when a trespass is al- 
 leged to have been committed ; it is sufiicient if the proof shows it with- 
 in the time mentioned in the statute of limitations. Allen v. Archer, 
 XLix. 346. 
 
 48. An action against two or more for a joint trespass cannot be sus- 
 tained by evidence of acts committed by one of them ; and a judgment 
 against both is not a bar to another action brought against one of them 
 for a several trespass. Davis v. Caswell, l. 294. 
 
 49. Where the defendant alleges that he and 'those under whom he 
 claims are in possession.of land, claiming title, whether he has or not 
 made improvements, is, in an action of trespass, an immaterial question. 
 Abbott v. Abbott, li. 575. 
 
TROVEE. 
 
 519 
 
 TRIAL BY JURY. 
 See FoEciBLE Entbt, &c., 12, 13. 
 
 TROVER. 
 
 I. ■WHEN' IT LIES. 
 II. CONVERSION. 
 III. PLEADING AND PEACTICE. 
 
 I. WHEN IT LIES. 
 
 1. Trover may be maintained for a wrongful conversion of a horse 
 let on the Lord's day, unless the owner, to establish his claim, invokes 
 aid from the unlawful agreement. Morton v. Gloster, xlvi. 520. 
 
 2. A. exchanged a colt with B. for a mare, on condition that if, after 
 trial and inquiry as to the mare of B., A. was satisfied the exchange 
 should become permanent, otherwise A. was to take the colt wherever 
 he could find him. B. sold the colt to C. without notice of the condi- 
 tion. Soon afterwards, A. having ascertained that B. had stolen the 
 mare, delivered her up to her owner, whereupon A. notified C. of the 
 condition of the exchange, claimed the colt and took him away. Held, 
 that A. never liaving parted with his property in the colt, C. could not 
 maintain trover for it. Stevens v. Ellis, xlviii. 501. 
 
 3. The mortgagee in a junior chattel mortgage, may maintain trover 
 against an ofBoer, who, before the title of the senior mortgagee became 
 absolute, attached and sold the mortgaged goods. Treat v. Gilmore, 
 XLix. 34. 
 
 4. Shares of stock in an incorporated company were conveyed by the 
 plaintiff to the defendant as collateral security for a debt, afterwards 
 paid. The shares, while yet standing in the defendant's name, being as- 
 sessed by law, were sold at auction for non-payment of an assessment 
 and struck off to the defendant. Hdd, that the s:de was invalid, and 
 that the defendant was liable in trover for the value of the shares at the 
 time of the alleged sale, the dividends received, and interest, deducting 
 the amount of assessments and expenses of sale. Freeman v. Sal-wood, 
 XLix. 195. 
 
 5. The title of a mortgagee is sufficient to maintain trover against all 
 persons not setting up any claim under the right to redeem. Jlotchkiss 
 v. Hunt, xLix. 213. 
 
 6. If fixtures annexed by the tenant are not removed during the term 
 of the tenancy, the right to remove is lost, and trover cannot be main- 
 tained for a refusal to give them up. Dacis v. Buffum, li. 160. 
 
 7. The defendant, a boom-owner, had, in accordance with a general 
 custom, taken another's logs and appropriated some of them for boom- 
 logs, and subsequently the owner of the logs bargained them to the 
 
520 
 
 TEOVEE. 
 
 plaintiff by a written agreement, in which the bargainer retained "a full 
 and perfect lien on the logs and lumber manufactured therefrom as col- 
 lateral security for the payment of the notes given therefor ; " and there- 
 upon, the plaintiff went to the defendant's boom, found the logs, and 
 requested the defendant to turn them out of his boom, which be agreed 
 to do, but did not. Held, that the plaintiff might maintain trover for 
 the value of the logs as against the defendant, although, when the ac- 
 tion was commenced, the agreement had not been delivered to the plain- 
 tiff, and some of the notes undue and unpaid. MOulton v. Witherdl, lii. 
 237. 
 
 8. A. owing the plaintiff $60, agreed to build her a wagon worth $85, 
 she to pay the balance when completed. On May 16, 1861, when the 
 wagon was completed, A. being also indebted to the defendant, gave him 
 a promissory note for $31, payable in thirty days, to which was appended 
 an agreement stipulating that said "note, being given for a side-spring 
 wagon delivered to" the defendant, "it was to remain the property of" 
 the defendant "until said note is paid." On Oct. 12, 1863, the plaintiff, 
 after tender and demand brought trover. Held, the action was main- 
 tainable. Keen v. Jordan, liii. 144. 
 
 9. Plaintiffs in possession may maintain trover against all persons 
 wrongfully interfering with their possession. Vining v. Baker, liii. 544. 
 
 10. If one tenant in common of a marine railway, having the general 
 oversight of the business, sell the railway, and the purchaser remove the 
 materials to another town, and there make them into a new railway on 
 his own land, a co-tenant may maintain trover for his proportion against 
 the purchaser; and the seller's account for expenditures, &c., cannot be 
 considered in such action. Strickland v. Parker, liv. 263. 
 
 11. During a lumbering operation on his own land, the plaintiff's ser- 
 vants cut over the well-known line between his land and that of the de- 
 fendant's. Thereafterwards, the plaintiff, having learned the facts, inter- 
 mingled the timber cut from the different lands, put the same mark upon 
 it, drove it, boomed it, and rafted it for sale ; thereupon, the defendants, 
 not being able to identify the timber cut from their land, but with a bona 
 fide intention to take their own timber, actually took more. Held, in 
 trover, that the defendants would not be liable as wrong-doers, until 
 the plaintiff had pointed out his property, and demanded it of them. 
 Smith V. Morrill, lti. 566. 
 
 12. Trover will not lie against the vendee of the original co-tenant 
 while he remains in possession of the property, although claiming it as 
 sole owner. Kilgore v. Wood, lvi. 150. 
 
 See Contract, 53. 
 Mortgage, 12. 
 New Trial, 34. 
 
 n. CONVBESION. 
 
 13. Where one wrongfully disposes of, or interferes witb, the goods of 
 another, it will constitute a conversion without a manual taking or re- 
 moval. Webber v. Davis, xlit. 147. 
 
 14. If a bailee uses property bailed in a different manner than by the 
 contract of bailment he stipulated to use it, such use constitutes a con- 
 
TROVER. 
 
 521 
 
 version, and trover is maintainable therefor. Crocker v. Gidlifer, xliv. 
 491. 
 
 15. Where the agreement was that the thing bailed should be used in 
 the service of A., and in his business, the bailee has no right to lease the 
 property to B., to be used by the latter. Crocker v. Gullifer, xliv. 491. 
 
 16. When the possession of property intended for sale in violntion of 
 law is made criminal by statute, no action can be maintained while such 
 statute is in force or after its repeal, for the conversion of such property 
 while the statute was in force. JRobinson v. Barrows, xlviii. 186. 
 
 17. If the owner of a building situated on another's land, at the time 
 when his right to take such building away accrues, uses all reasonable 
 means to do so, but it is withheld from him by the owner of the Innd under 
 a claim of ownership, this constitutes a conversion. Adams v. Goddard, 
 XLVIII. 212. 
 
 18. Where a railroad company pledged its own bonds as collateral for 
 the payment of debts contracted by the company, and the pledgee cut 
 therefrom and collected of the agents of the company the interest cou- 
 pons that afterwards became due, such acts cannot operate as a conver- 
 sion of the bonds by the pledgee. And. JR. B. Co. v. Auburn Bank, 
 XLVIII. 335. 
 
 19. If one having possession of another's property for a specific pur- 
 pose, send it to a third person, who receives it and holds it as security for 
 money advanced to the sender, such sending, receiving, and holding, will 
 be a conversion both by the sender and receiver, and trover will lie 
 without a demand. Hotchkiss v. Hunt, xlix. 213. 
 
 20. Nor will it make any difference that the receiver acted ignorantly 
 in good faith. Hotchkiss v. Hunt, xlix. 213. • 
 
 21. A proposition made by the ownera of property tortiously held by 
 others, to acknowledge their title and hold it for them, is not a waiver 
 of the conversion, unless assented to by both parties. Hotchkiss v. Hunt, 
 XLIX. 213. 
 
 22. The petition of the plaintiffs to a court of insolvency in Massachu- 
 setts, alleging that they hold certain notes against an insolvent debtor, 
 and that tliey are the owners of certain property, which they hold as col- 
 lateral security for the payment of these notes, and praying for leave to 
 sell the property and apply the proceeds toward the payment of the 
 notes, and that they may be admitted to prove the balance of their claims 
 against the insolvent; and the order of court granting the leave prayed 
 for, together with the evidence of sale to the plaintiffs at auction, are not 
 a bar to an action of trover for a conversion by the defendants prior to 
 these proceedings, the plaintiffs not claiming title under them. Hotch- 
 kiss V. Hunt, XLIX. 213. 
 
 23. A demand and refusal are evidence of conversion. When an ac- 
 tual conversion is proved, proof of a demand is not essential. 8late v. 
 Patten, xlix. 383. 
 
 24. A contractor for the purchase of a ferm erected buildings thereon, 
 occupied them thirteen years, and abandoned the farm which the owner 
 afterwards sold and conveyed to R., against whom the contractor brought 
 trover for conversion of the buildings, R. having sold and conveyed the 
 farm to another person. Hid, that the buildings passed to R. as a part 
 of the real estate, notwithstanding R.'s grantor may have verbally 
 
522 TEOVEE. 
 
 agreed with the contractor that they were personal property. Fenlason 
 V. Jt'ickliff, L. 362. 
 
 25. The mere giving of a deed of land leased, the lessee continuing in 
 quiet possession, cannot be deemed a conversion of fixtures, which the 
 tenant lias the right to remove during his term. Davis v. Buffam, li. 
 160. 
 
 26. If, at the time 6f demand, the defendant had neither actual nor 
 constructive possession of the property ; no right to, nor control over it, 
 and hence could not comply, a demand and refusal only will not sup- 
 port an action of trover. Davis v. Duffmn, i,i. 160. 
 
 27. When personal property comes rightfully into the possession of 
 the defendant, a demand and refusal are prerequisites to the maintenance 
 of trover for its value. Carleton v. Lovejoy, liv. 445. 
 
 28. The plaintiff as mortgagee of one-eighth of a vessel, demanded of 
 the defendant as assignee of the mortgager, who refused to comply, de- 
 nying title in the plaintiff and claiming title in himself The defendant^ 
 both before and after the demand, received one-eighth of the net earnings 
 and had paid one-eighth of the repairs. Held, that the facts constitute 
 a conversion. Wood v. Stockwell, lv. 76. 
 
 29. A person is guilty of conversion -who sells the personal property 
 of another, without authority from the owner, notwithstanding he acts as 
 the agent or servant of one claiming to be the owner, and is ignorant of 
 his principal's want of title. Kimball v. Dlllings, lv. 147. 
 
 30. And it is no defense that the property sold was government bonds 
 payable to bearer, provided the principal was not the bona fide pur- 
 chaser. Kimball v. Billings, lv. 147. 
 
 31. Turning logs into a river at the proper season of the year for the 
 purpose of diiving them to market, is not a conversion on the part of a 
 co-tenant. Eilgore v. Wood, lvi. 150. 
 
 32. The Y. & C. R.dlroad Company, in 1851, issued bonds for the pur- 
 pose of completing and equipping their railroail, and secured them by a 
 mortgage, in trust, of their railroad and franchise, together with aU 
 " oars, engines, and furniture, that have been or may be purchased by 
 said company." In 1853, the company purchased an engine and certain 
 cars, which they subsequently mortgaged to the plaintiffs. In 1859, a 
 bill in equity was commenced by the holders of the bonds against the 
 company and the assignees of the former mortgage, to compel the exe- 
 cution of the trust, and the defendant was appointed a receiver by con- 
 sent, who took all of the property of the railroad from the possession of 
 the company, to hold the same under the direction of the cavxt pendente 
 lite. The plaintiffs thereupon demanded the engine and cars of the re- 
 ceiver, and, upon his refusal to deliver the property, they commenced an 
 action of trover, and obtained leave of court to prosecute it. Held, (1) 
 That there had been no conversion by the defendant ; (^2) That, if the 
 property belonged to the plaintiffs, they should have tried the title by a 
 suit for the possession, but could not maintain trover. Morrill v. Nuyes, 
 LVL 458. 
 
 in. PLEADING, PEACTICE, AND EVIDENCE. 
 
 33. In trover against several defendants, the refusal to instruct the 
 
TRUSTEE PROCESS. 623 
 
 jury that they are authorized (if they so find), to return a verdict against 
 some of them, and in favor of others, was erroneous. Powers v. Saw- 
 yer, XLVI. 160. 
 
 34. In trover to recover the value of stolen goods, it is not necessary to 
 prove the guilt of the defendant beyond a reasonable doubt. /Sinclair 
 V. Jackson, xlvii. 102. 
 
 35. In trover for conversion of property, by receiving it as a pledge 
 for money advanced to a bailee, evidence in defense that he could not 
 send it to the place to which he had agreed to send it for manufacture, 
 and therefore sent it to the defendants, is immaterial and inadmissible. 
 JSbtchkiss V. Hunt, xlix. 213. 
 
 36. A writ, containing one count in trespass de bonis, and another in 
 case, may be amended by adding a more formal count in trover for the 
 same property. Moulton v. Witherell, lii. 237. 
 
 See Damages, 10, 11, 12. 
 Practice, 60, 92, 93, 94. 
 
 TRUANT, HABITUAL. 
 See CoMPLAiisrT, 11. 
 
 TRUSTEE PROCESS. 
 
 I. PROCESS. 
 
 II. DISCLOSURE. 
 
 III. WHEN THE TRUSTEE SHALL BE CHARGED. 
 
 IV. WHEN DISCHARGED. 
 
 V. EFFECT AS BETWEEN PRINCIPAL AISTD TRUSTEE. 
 
 VL GENERALLY. 
 
 VII. PRACTICE." 
 
 1. PROCESS. 
 
 (a) When maintainable. 
 
 (b) Where, and against whom. 
 
 (a) When maintainable. 
 
 1. If a firm take property purchased by one member thereof, and in- 
 termingle it with their own property of the same kind, and sell the 
 whole together, giving no notice that one member of the firm owns any 
 part thereof in severalty, the purchaser is liable to the firm only for the 
 price. The member claiming exclusive title cahnot maintain an action 
 in his own name alone for any part of the price ; nor can his private 
 creditors maintain a trustee process against such purchaser. White 
 Mountain Bank v. West, xlvi. 15. 
 
524 
 
 TRUSTEE PKOCESS. 
 
 (b) Where, and against whom. 
 
 2. The statute contains no provision by which a guardian, as such, can 
 be summoned and holden as trustee. ■ Hanson v. Butler, xlviii. 81. 
 
 3. Trustee process may, under R. S. of 1857, c. 86, §§ 5 and 6, be 
 brought in the county where a corporation aggregate, summoned as 
 trustee, has its established or usual place of business. Cooper v. Bailey, 
 Lii. 230. 
 
 4. A trustee process must be brought in a connty where some one or 
 more of the persons summoned therein as trustees resides, or it will be 
 abated on proper plea or motion. ' Mansur v. Coffin, liv. 314. 
 
 5. The want of service on an alleged trustee, residing in the county 
 in which the writ is made returnable, cannot be cured under R. S. of 
 1857, c. 81, § 25. Mansur v. Coffin, liv. 314. 
 
 II. DISCLOSURE. 
 
 6. Where a trustee refuses to answer questions propounded to him in 
 his disclosure, the answers to which, however given, will not affect his 
 liability, the court will not order that he disclose further, — as if a mort- 
 gagee of goods, of which he never had possession, be interrognted con- 
 cerning the mortgaged property. Callender v. Furbish, xlvi. 226. 
 
 7. Under R. S. of 1857, c. 86, § 55, the liability of the trustee is not 
 necessarily to be determined upon his disclosure made the first terra, if 
 there are matters to be settled afterwards, in order to ascertain the fact 
 and amount of the trustee's indebtedness to the principal defendant. 
 Cutter V. Perkins, xlvii. 557. 
 
 m. WHEN THE TRUSTEE WILL BE CHARGED. 
 
 (a) For specific pbopektt in his hands. 
 
 (b) POE INDEBTEDNESS OK OTHEB LIABILITY. 
 
 (a) For specific property in his hands. 
 
 8. The principal defendants conveyed to the trustee certain real es- 
 tate by deed absolute in form, and assigned to him the cause of action 
 in a pending suit, in which judgment was afterwards recovered, and had 
 given him an unconditional bill of sale of their stock of goods in their 
 store which he took possession of, — all of which transfers were intended 
 to secure him against liabilities he had assumed, and for moneys paid for 
 them. Held, that where there had been no fault or neglect on his part, 
 he could not be charged with the real estate, or the amount of the judg- 
 ment, and be required to credit the value thoi-eof in part of their indebt- 
 edaess to him; but that, under R. S. of 1857, c. 86, § 50, he would be 
 liable to deliver the goods \o the plaintiff upon the payment of his claims 
 by them. But although the condition of the sale was not expressed in 
 the transfer, it was not in fraud of the statute requiring mortgages of 
 personal property to be recorded, because the mortgagep took possession 
 at the time of the sale. Shreve v. Fenno, xlix. 78. 
 
 9. In scire facias against alleged trustees, claiming to charge them 
 upon the ground of their being mortgagees in possession of mortgaged 
 
TRUSTEE PROCESS. 
 
 525 
 
 goods, the declarations of the principal defendant's clerk, importing that 
 he claimed to be in possession of the goods for the mortgagees, are not 
 admissible as evidence of his agency. Emmons v. Bradley, lvi. 333. 
 
 10. Neither, in such case, is the extra-official statement in the return 
 of an officer attaching the mortgaged goods, that " in consequence of, 
 and compliance with," the mortgagees' notice to him of their claim un- 
 der their mortgage, he "restored" the goods to the mortgagees, evidence 
 against them. Emmons v. Bradley, lvi. 333. 
 
 11. In such case, an overstatement of their claim, by a comparatively 
 small amount, made by the mortgagees in their notice to an attaching 
 officer, is not conclusive evidence of an intent to delay other creditors of 
 the moi'tgager. Emmons v. Bradley, lvi. 333. 
 
 12. The presentment of their claim under a mortgage of goods, by 
 the mortgagees to an attaching officer, cannot be considered as equiva- 
 lent to the actual taking of possession, so as to render the mortgagees 
 chargeable as trustees. Emmons v. Bradley, lvi. 333. 
 
 (b) For indebtedness, or other liability. 
 
 13. The share of money payable by an insurance company, after loss, 
 upon a policy " for whom it concerns," to one of the several owners, may 
 be held on trustee process, by a creditor of such part-owner, although 
 the name of the latter is not in the policy. City Bank v. Adams, xlv. 
 455. 
 
 14. Where a testator provided by his will that all his real and personal 
 property should be sold by his executor, and, after the payment of debts, 
 legacies, and expenses, gave the residue to A. and B.; and the executor 
 was summoned as trustee of B., before he could ascertain whether, on 
 the settlement of the estate, there would remain any balance to be paid 
 to B. under the residuary clause, the case may be continued until the 
 estate is so far settled as to ascertain the amount of the residuary fund, 
 and the executor be required to make further disclosure, showing the 
 facts when ascertained ; and he will be chargeable as trustee for what- 
 ever sum may be found to be in his hands belonging to B. Cutter v. 
 Perkins, XLvn. 557. 
 
 15. The fact that the fund, from which the debts and legacies were to 
 be paid, was to be derived in part from the sale of real estate, placed the 
 residuary legatees in no different relations to the executor, than if the 
 testator's estate had all been personal. The executor is liable to be called 
 on to account for the estate, both real and personal, by A. and B., al- 
 though, on the settlement, there may prove to be nothing due to them. 
 Cutter V. Perkins, XLvn. 557. 
 
 16. The residuary fund which proved to be in the executor's hands for 
 A. and B. on settlement of his account of administration, was as sub- 
 stantially in his hands when he was served with the process, as though 
 the sales had been made and the avails received before the service was 
 made. Cutter v. Perkins, XLvn. 557. 
 
 17. A person will be charged as trustee, if he has in his possession any 
 goods, effects, or credits of the principal defendant, held under a convey- 
 ance fraudulent as to creditors, although the principal defendant could 
 not have iriaintained an action against him. Blodgett v. Chaplin, xlviii. 
 322, 
 
526 TRUSTEE PROCESS. 
 
 18. The maker of a note payable to an insurance company or orfler 
 for a sum certain, '^aud such additional premium as may become due 
 on " a policy named, and at a time therein specified, may be charged as 
 the trustee of the insurance company. Marrett v. Equitable Ins. Co., 
 Liv. 537. 
 
 19. Upon the condition that his bounty money should be deposited 
 for his benefit in the Portland Savings Bank, the trustees of the State 
 Reform School permitted one of its inmates to enlist as a volunteer in 
 the military service of the United States, and thereupon they deposited 
 his bounty money in the bank, in his own name, upon the following 
 special condition prescribed in all such cases, and entered upon the books 
 of the bank, viz.: — "All bounty money received by s.aid boys, shnll be 
 deposited in the Portland Savings Bank, and there remain . . . till they 
 have severally reached the age of twenty-one years, and no part of said 
 deposits is to be withdrawn without the consent of the trustees of the 
 State Reform School. In a trustee process, brought by a creditor against 
 such volunteer, for necessaries purchased after his discharge from the 
 service and before he had attained his majority. Held, (I) That the 
 money is due absolutely to the defendant and is payable to him or his 
 order on his reaching the age of twenty-one years, without the consent 
 of the trustees of the Reform School ; and (2) That the bank is chargeable 
 as trustee, and will be compelled to pay the amount charged, when the 
 same is payable according to the terms of the deposit. Foxton v. Kuck- 
 ing, LV. 346. 
 
 IV. WHEN- DISCHAKGED. 
 
 20. Where a railroad corporation had conveyed to certain persons all 
 its property, in trust, to secure the payment of certain debts, the trus- 
 tees to have the right to take possession of the property and dispose of 
 the same in case of default of the company to pay such debts; and the 
 trustees permit the company to use and manage the road and other prop- 
 erty, its funds, in the hands of its treasurer at the time of the convey- 
 ance, are embraced therein, and cannot be held against the paramount 
 right of said trustees, by a creditor of the company, who has subsequent- 
 ly caused them to be attached on trustee process. Woodman v. York & 
 C. JR. B. Co., XLT. 207. 
 
 21. Where one summoned as trustee declines to answer interrogato- 
 ries that relate to matters with the principal defendant, occurring since 
 the service of the writ, and which he states in his disclosure to be in no- 
 wise connected with his transaction with the defendant, prior to the ser- 
 vice on him, such refusal will not charge him. Humphrey v. Warren, 
 XLT. 216. 
 
 22. The indorser of a negotiable promissory note, being exempt from 
 liability to trustee process, his exemption is not affected, where a suit 
 had been commenced by the indorsee against the indorser, which was 
 pending when the trustee process was instituted, and had been submit- 
 ted to the court, with jury powers, "to enter such judgment as the law 
 and the facts may warrant," whose decision was that the indorser was 
 liable upon the note. Bailey v. Loud, xlvi. 167. 
 
 23. To constitute the relation of trustee, there must be a privity of 
 contract, express or implied, between the principal debtor and the al- 
 
TRUSTED PKOCESS. 627 
 
 leged trustee, ov, the foTmer must have intrusted and deposited goods 
 and effects with the latter. Skowhegan Bank v. Farrar, xlvi. 293. 
 
 24. Where one has possession of mortgaged property as the agent of 
 the mortgagees to whom he is accountable, he is not chargeable therefor 
 as the trustee of the mortgager ; for the mortgager has not intrusted 
 or deposited the property in his hands. Skowhegan Bank v. Farrar, 
 XLVI. 293. 
 
 25. Nor can he be regarded as having in his possession any goods, ef- 
 fects, or credits, wliich he holds under a conveyance fraudulent and void 
 as to the defendant's creditors, for he has no conveyance from him. 
 Such a case is not with R. S. of 1857, c. 86, § 63. Skowhegan Bank v. 
 Farrar, xlti. 293. 
 
 26. The holder of a negotiable note of a third person is not chargeable 
 therefor, as^ the trustee of the owner of the note, it being a mere chose 
 in action. Skowhegan v. Farrar, xlvi. 293. 
 
 27. The "contingency" referred to in R. S. of 1857, c. 86, § 55, is one 
 which maj' prevent the principal from having any claim on the trustee, 
 or right to call on him to account ; and not one which, although the 
 principal may require the trustee to account, may show, on settlement 
 made, that nothing is due. Cutter v. Perkins, xlvii. 557. Davis v. 
 Davis, xlix. 282. Bryant v. Erskine, l. 296. 
 
 28. A person cannot be charged by reason of the conveyance to him 
 of real estate, or any interest therein, though such conveyance be fraudu- 
 lent as to creditors. Blodgett v. Chaplin, xlviii. 322. Shreve v. Fenno, 
 xlix. 78. 
 
 29. Nor by reason of a gratuitous gift of money, although th'e debt 
 sued for existed prior to the gift, if the case does not disclose that the 
 donor was insolvent or largely indebted. Whittier v. Prescott, xlviii. 
 867. 
 
 30. Nor can an insurance company be charged by reason of an insur- 
 ance policy which stipulates that the "said loss or damage shall be paid 
 within sixty days after due notice and proof thereof," in an action com- 
 pienced after a loss, but before notice and proof, the claim being contingent 
 until notice and proof Davis v. Davis, xlix. 282. 
 
 31. So, where M. promised to pay E. his account against a third per- 
 son, ifit should be adjudged a lien claim upon a certain ship, — until 
 some competent tribunal has adjudged the claim, a lien, the demand 
 against M. is contingent. Bryant v. Erskine, l. 296. 
 
 32. Money in the hands of a station agent of a railroad company, re- 
 ceived for tickets sold and freight collected, cannot be attached in his 
 hands by trustee process, in a suit against the company. Pettingill v. 
 Androscoggin R. JR. Co., li. 370. 
 
 33. A cashier of a bank, in which one deposited the funds of a cor- 
 poration, cannot be holden as trustee of the corporation, although he is 
 also treasurer thereof, and deposited the funds in the bank as such treas- 
 urer. Sprague v. Steam JVav. Co., lii. 592. 
 
 34. Bounty money of a volunteer, in the hands of a person summoned 
 as trustee, cannot be attached by trustee process, where the principal 
 debtor's personal property is less than a thousand dollars. (Public Laws 
 of 1862, c. 106, § 2.) Bridgton v. Zakin, Lin. 106. 
 
528 
 
 TEUSTEi; PROCESS. 
 
 35. ,TJndei' the statutes of this State, a guardian cannot be holden as 
 trustee of his ward. Hanson v. Butler, xlviii. 81. Homstead v. Loomis, 
 Liii. 549. 
 
 36. If a person contract to perform a job for another at a stipulated 
 price, payable when completed, the employer cannot be held as trustee 
 to the employed if the latter abandon the job before its completion. 
 Otis T. Ford, liv. 104. 
 
 V. EFFECT AS BETWEEN PEINOIPAL AND TRUSTEE. 
 
 87. Under the statutes of 1821, one summoned as the trustee of 
 another was protected against any claim upon him by the principal de- 
 fendant during the pendency of the trustee suit; and the judgment in 
 that suit was a bar to an action upon such claim by the principal defend- 
 ant, except for the excess thereof over the amount of the judgment. 
 Noble V. Merrill, xlviii. 140. 
 
 38. But the judgment against the trustee was no discharge of the 
 judgment against the debtor, though, by means of the trustee suit, pay- 
 ment by the trustee to the debtor was prevented, and, by the subse- 
 quent insolvency of the trustee, the debt was lost. Noble v. Merrill, 
 XLVIII. 140. 
 
 39. Nor was the judgment discharged by the neglect of the creditor 
 to sue out a writ of scire facias agaiust the trustee, for twenty years, he 
 continuing insolvent. Noble v. Merrill, xlvui. 140. 
 
 VI. GENEEALLY. 
 
 40. Where a corporation is summoned as trustee, service of the writ 
 by leaving a copy at the place of last' and usual abode of the treasurer 
 or other proper officer, is sufficient, and after general appearance and dis- 
 closure, and judgment, it is too late to object to the service. Harris v. 
 Somerset <& Ken. R. It. Co., xlvii. 298. 
 
 41. A. contracted with a corporation to build a railroad for a gross 
 sum, to be paid monthly on estimates of work done, with a proviso that 
 $29,000 of the whole sum should be for land damages, to be paid and 
 settled by the corporation without unnecessary delay, so much of the 
 land damages as had been actually paid by the corporation before being 
 summoned as trustee of A., is to be allowed as a paymett to A. The 
 unsettled balance cannot be treated as paid to A., although long previ- 
 ously charged to him by the corporation. Harris v. Somerset t& JSJen. 
 JR. B. Co., xLTii. 298. 
 
 42. Where the return on a trustee writ shows that it was served on 
 the trustee at a stated hour, a payment made by the trustee to his prin- 
 cipal on the same day, is to be regarded as subsequent, in the absence of 
 proof to the contrary. Harris v. Somerset S Ken. B. B. Co., xlvii. 
 298. 
 
 43. A. contracted to build a railroad for $287,000, eighty per cent to 
 be paid monthly on estimates of work done, and $75,000, including the 
 twenty per cent reserved, to be paid in stock, time of payment not stip- 
 ulated. A. abandoned the contract without completing it, and the com- 
 
TRUSTEE PROCESS.. 529 
 
 pany was summoned as his trustee. Held^ that the company had a right 
 to deliver an amount of stock proportioned to the work done, and did 
 not waive the right by making full payment for several months in cash. 
 Harris v. Somerset & Ken. JR. R. Co., xltii. 298. 
 
 44. "Where a railroad corporation was charged as trustee of an em- 
 ployee whose claim was payable in stock, a tender of certificates of a 
 sufficient number of shares duly signed and filled, except the name of 
 the holder, but not separated from the treasurer's book, is sufficient, 
 semhle. Harris v. Somerset & Hen. JR. JR. Co., xlvii. 298. 
 
 45. The character of the purchase of the defendant's goods by the 
 alleged trustee, may be tested by the honesty of the parties in other 
 acts, which are a part of the same transaction. JBlodgett v. Chaplin, 
 XL VIII. 322. 
 
 46. If a factor receives goods, and makes advances upon them, to be 
 reimbursed from the proceeds, when sold, and is then summoned as the 
 trustee of the owner, he is not thereby devested of his right to sell the 
 goods. The creditor, by the trustee process, is only subrogated to the 
 rights of the debtor. White JMJountain JBank v. West, xlvi. 15. 
 
 Vn. PEACTICE. 
 
 47. The trustee having been charged in scire facias for a sum greater 
 than the amount of the judgment against the original debtor, that sum 
 is reduced, so as to cover only the amount of the judgment, with legal 
 interest and costs. Tyler v. Winslow, xlvi. 348. • 
 
 48. Where, from the disclosure, it appears that the trustee has been 
 notified by the principal defendant, that the funds in his hands belong 
 to a deceased person, of whose will he is executor, and the defendant, as 
 executor, applies for leave to contest the question with the plaintifij the 
 issue is not whether the trustee is chargeable, but whether the funds 
 belong to the defendant or the estate of his testator. JDalton v. Dalton, 
 xLvm. 42. 
 
 49. Where a guardian was summoned as trustee and charged as guar- 
 dian on disclosure, without taking exceptions, on scire facias, he was 
 allowed, under R. S. of 1857, c. 86, § 71, to disclose further ; and, although 
 it was held that he could not be legally chargeable, as trustee, costs of 
 the latter suit were allowed the plaintifi) the defendant being guilty of 
 neglect in not alleging exceptions in the original writ. Hanson v. JBut- 
 ler, xLvni. 81. 
 
 50. A writ of scire facias, cannot be lawfully issued against one who 
 has been adjudged a trustee, before the return day of the execution 
 against the principal defendant. R. S. of 1857, c. 86, § 67. JRoberts v. 
 Krdght, xlviii. 171. 
 
 61. A person summoned as trustee, will not be entitled to costs, when 
 he comes and files, on the 7th day of the first term, the written declara- 
 tion under oath mentioned in R. S. of 1857, c. 86, § 13, unless in accord- 
 ance with the 12th rule of court, he " give written notice to the attorney 
 for the plaintiff," that " he presents himself for examination," or in the 
 absence of the attorney, " cause to be entered upon the docket that he 
 presents himself for examination." Filing such a declaration, and caus- 
 84 
 
e530 • TRUST. 
 
 ing to be entered upon the docket " (7) trustee disclosure of A. J. B. re- 
 ceived and filed," &c., is not sufficient. Butler v. Starrett, lii. 281. 
 
 52. The want of service on an alleged trustee, residing in the county 
 in which the writ is made returnable, cannot be cured under R. S. of 1857, 
 c. 81, § 25. Mansur v. Coffin, liv. 314. 
 
 53. If jurisdiction has been acquired by due personal service upon a 
 defendant resident witliout the State, or if goods, estate, effects, or credits 
 of any defendant are found wittiin the State, and attached on the origi- 
 nal writ, jurisdiction will be sustained. R. S. of 1857, c. 81, §§ 5 and 18. 
 Cassity v. Gota, liv. 380. 
 
 54. When it appears by the discharge of the only trustee summoned, 
 that the court has no jurisdiction in either of these modes, the action 
 should bs dismissed. It is misprision to take order of such case. Cas- . 
 sity V. Oota, liv. 380. 
 
 55. In a trustee suit, the court will not entertain a motion for a dismissal 
 of the action, filed oq the eighth day of the term, suo motu, or at the in- 
 stance of his clients, in behalf of the trustees, by the attorney of the 
 principal defendants, the trustee^ having counsel of their own who had 
 prepared their disclosure. Jacobs v. Copeland, liv. 503. 
 
 56. Nor a motion for a discharge of the trustees upon their disclosure, 
 filed under the same circumstances and by the same attorney. Jacobs v. 
 Copeland, liv. 503. 
 
 See Costs, 4, 5, 6, 14. 
 SciEB Facias, 6. 
 
 TRUST. 
 
 I. CREATION AND NATUEB OF TETJST ESTATES. 
 ir. RESULTING TRUSTS. 
 
 III. APPOINTMENT OF TRUSTEES. 
 
 IV. RIGHTS, DUTIES, AND LIABILITIES OF TRUSTEES. 
 V. RIGHTS OP THE CESTUI QUE TRUST. 
 
 For trusts in Equity Proceedings, See Equity, 109-134. 
 
 I. CREATION AND NATURE OF TRUST ESTATES. 
 
 1. It seems, that a gift causa mortis may be made in trust for the ben- 
 efit of third persons. Dresser v. Dresser, xlvi. 48. 
 
 2. R. S. of 1857, c. 51, § 53, and the nine following sections, and c. 30 
 of the Pub. Laws of 1858, relative to " trustees of railroads," and regu- 
 lating the proceedings to be had when a railroad has been conveyed to 
 trustees, for the use of bondholders, apply to the cases where the' trust, 
 the trustee, and the cestui que trust, are all created by one deed, and not 
 to a case where a mortgage is made to an individual, to secure him and 
 
TRUST. 531 
 
 his assigns who may subsequently become holders of bon(la to be issued 
 by hiiii. In re Bondholders of York & C. M. JR. Co., l. 552. 
 
 3. Should such a mortgagee transfer any part of tlie bonds, he would 
 hold the mortgaged estate, as mortgagee tor the part not transferred, and 
 as trustee for the holders of the portion transferred ; but neither before 
 nor after such transfer would he be such a trustee as the statutes referred 
 to contemplate. In re Bondholders of York <Sb C. li. B. Co., l. 552. 
 
 4. The statutes contemplate a deed of trust', and such a mortgage is not 
 within the provisions of the statute. And the election of trustees in 
 place of the original mortgagee, made at a meeting of the stockiiolders 
 called for the purpose of foreclosing the mortgage, was unauthorized. 
 In re Bondholders of York <b C. R. B. Co., l. 552. 
 
 5. Where an administrator obtained a judgment on a demand belong- 
 ing to his intestate's estate, and extended the execution upon the land of 
 the judgment debtor, he held the land, under the Public Laws of 1821, 
 c. 52, in trust, during the time he was administering; but it may well be 
 doubted whether his right was not ad rem rather than in re, being more 
 in the nature of a lien, than a legal title. Tebbetts v. Ustes, lii. 566. 
 
 6. On June 20, 1825, Theodore Jones, by deed of warranty, duly exe- 
 cuted and recorded, conveyed to Leonard Jarvis certain real estate situ- 
 ated in Ellsworth, in trust, and subject to certain mutual covenants and 
 agreements contained in a written declaration of trust, of even date with 
 the deed, signed by the parties and recorded. In accordance with one 
 of the covenants, Leonard Jarvis, five days thereafterwards, by his wUl, 
 appointed Charles Jaiwis to be his successor as trustee, and devised to 
 him, in trust, the premises specifically described in the above-named deed.. 
 On Sept. 11, 1840, Theo. Jones, by deed of warranty, duly executed and 
 recorded, conveyed to Leonard Jarvis, "in trust, for the purposes men- 
 tioned in the " former deed, certain other described premises, in Ells- 
 worth, "to have and to hold in trust as aforesaid, with all the privileges 
 and appurtenances thereof to the said Leonard, his heirs and assigns for- 
 ever." On Aug. 29, 1854, Leonard Jarvis, by deed of warranty, in con- 
 sideration of one dollar, conveyed to Charles Jarvis, " all his [my] right, 
 title, and interest in and unto any lands in Ellsworth," and several other 
 towns mentioned. On Nov. 14, 1863, Leonard Jarvis having deceased, 
 Charles Jarvis, " in his own right, and as executor of and trustee under 
 the will of Leonard Jarvis," conveyed the premises mentioned in the deed 
 of June, 1825, to Munroe Young. On Feb. 1, 1864, Charles Jarvis, by 
 deed of release, conveyed to said Young "all the rjght, title, and interest 
 he [I] may have in his [my] own right, or as devisee, trustee, or heir un- 
 der the will of Leonard Jarvis, to the " premises described in the deed' 
 of Sept. 11, 1840, "not meaning to prejudice any right or interest which 
 the heirs of Leonard Jarvis, or the heirs of Theo. Jones may have in the 
 premises," " meaning to convey all the right, ... if any, I may have in 
 my own right, as trustee as aforesaid. Held, (1) That by accepting the 
 deed of Sept. 11, 1840, Leonard Jarvis held the estate therein described 
 as trustee; (2) That neither by the will of Leonard Jarvis, nor by the 
 deed of Aug. 29, 1854, did Charles Jarvis receive any title to the trust 
 estate described in the deed of Sept. 11, 1840; (3) That the trust estate 
 described in the deed of Sept. 11, 1840, remained in Leonard Jarvis un- 
 til his death, when it descended to his heirs at law, subject to the same 
 trusts as when the fee was in their ancestor; (4) That if the heirs hold- 
 ing the fee neglect or refuse to execute the trusts, they may, it seems, 
 
532 TKusiv 
 
 with the assent of the cestui que trust and others interested, convey the 
 trust estate to a new trustee mutually agreed upon, subject to the origi- 
 nal trusts ; and (5) That the estate of Leonard Jarvis would be entitled 
 to all its rights under the declaration of trust ; and (6) That all the per- 
 sons interested must be made parties to a petition for the appointment 
 of a new trustee. Abbott, administrator, petitioner, lv. 580. 
 
 7. After describing in his will the trust estate, and the covenants and 
 agreements of the trust, one of which stipulated that the said Leonard 
 may retain, out of the sales of the trust estate, a reasonable compensa- 
 tion for services and for all advances Leonard Jarvis devised to Charles 
 Jarvis, his successor, the trust property " as it may be at my decease, upon 
 the aforesaid terms and conditions, and for the aforesaid pui-poses, — he 
 paying or causing to be paid unto my heirs . . . the sum, if any, due my 
 estate from the " trust estate. Held, that by accepting the trust under 
 the will, Charles Jarvis was not bound to pay whatever sum the trust es- 
 tate owed the estate of the testate ; but that he should see that such of 
 the trust funds as came into his possession should be appropriated to the 
 payment of such sum. Abbott, administrator, petitioner, lv. 580. 
 
 See MoKTGAGi!, 11. 
 
 II. EESTTLTING TRUSTS. 
 
 8. A trust resujts, by implication of law, in favor of one who has fur- 
 nished his agent with money, paid to purchase for him a parcel of land, 
 if the agent takes the conveyance "to himself. And if the agent dies 
 solvf-nt, the heirs may be compelled to release to the equitable owner. 
 JBrown v. Dwelley, xlv. 52. 
 
 9. If the obligee of a bond for the conveyance of land, assign such 
 bond to a third person, with a verbal agreement that it shall be held as 
 collateral security for sums due on account, and the account not being 
 paid, the assignee pay the obligee, and take a deed to himself, there is 
 no implied resulting trust. Bamsdell v. Emery, xlvi. 311. 
 
 10. And, if afterwards, the parties compromise, and settle their ac- 
 counts, and give mutual discharges, without mentioning the land, but 
 which is really worth less than the amount due from the original obligee 
 of the bond, he is not entitled to have a conveyance to himself. Rams- 
 dell V. Emery, xlvi. 311. 
 
 11. Where A. being the owner of certain land, conveyed it to B. in 
 mortgage, with the usual covenants of warranty, and afterwards took an 
 assignment to himself of a prior mortgage which in fact was purchased 
 by C. and the consideration paid by him, and the mortgage, immediately 
 after the assignment to A. was by him, pursuant to a previous arrange- 
 ment of the parties, assigned to C. or assigned in blank, and delivered to 
 C. with power to fill the blank, the assignment to A. was clearly for the 
 use of C, and an implied resulting trust in favor of C. at once attached 
 to the conveyance made by the first mortgagee to A. Kelley v. Jenness, 
 L. 455. 
 
 12. But if a part of the money was paid on the mortgage by A. and a 
 part by C. the implied trust in favor of C. will extend no further than 
 the amount paid bv him, whether more or less. ^Uley v. Jenness, l. 
 455. 
 
TKTJST. 533 
 
 13. Where an assignment of a mortgage was talcen by one partyj 
 when another piid the consideration of the assignment, whereby an im- 
 plied trust resulted in favor of the latter, parol proof to show the pay- 
 ment and by whom made, is admissible in a suit at law, notwithstanding 
 the statute of frauds. Kelley v. Hill, l. 470. 
 
 14. What will constitute a secret trust in a conveyance of real estate. 
 Sidensparker v. Sidensparher, lii. 481. 
 
 15. By R. S. of 1857, c. 73, § 11, there can be no trust concerning 
 lands, except trusts arising or resulting by implication of law, unless cre- 
 ated or declared by some writing signed by the party or his attorney. 
 Dudley v. Bachelder, liii. 403. 
 
 16. To establish a resulting trust, it must be clearly proved that the 
 consideration of the purchase belonged to the cestui que trust, or was 
 advanced by some other person as a loan or gift to him. Dudley v. 
 Bachelder, Lm. 403. 
 
 17. Where several pay the purchase-money for the purpose of secur- 
 ing an interest on the part of each, a trust will result in the proportion 
 of the payment of each when paid by some specific part or distinct inter- 
 est in the estate ; but not otherwise. Dudley v. Bachelder, liii. 403. 
 Kelley v. Jenness, l. 455. 
 
 See Featjds, Statute of, 11. 
 
 III. APPOINTMENT OF TETJSTEES. 
 
 18. Where one, in anticipation of death, gave certain personal prop- 
 erty to the defendants, to be managed as their own, and, with its pro- 
 ceeds, to be paid to his children at a specified time, Jleld, to be a gift 
 inter vivos ; and the donees were permitted to retain the property upon 
 giving bond to execute the trust. Dresser v. Dresser, xlvi. 48. 
 
 19. All persons interested must be made parties to a petition for the 
 appointment of a new trustee. Abbott, pefr, lv. 580. 
 
 IV. EIGHTS AND LIABILITIES OF TRUSTEES. 
 
 20. One who holds property as collateral security or in trust cannot be 
 the purchaser of it at a sale by operation of law. Farher v. Vose, xlv. 
 54. Freeman v. Harwood, xlix. 195. Boynton v. Brastow, Lni. 362. 
 Knight v. Herrin, xLviii. 533. 
 
 21. Trustees, to whom a debtor conveys property in trust for his cred- 
 itors, stand in no better position in respect to the title than the debtor. 
 State V. Patten, xlix. 383. 
 
 22. A trust estate does not, like an absolute estate, enure to the ben- 
 efit of the grantee of the trustee, when the latter made the conveyance 
 in his individual capacity. And an implied trust is governed by the 
 same principles and subject to the same general rules, as other ti'usts. 
 Kelley v. Jenness, l. 455. 
 
 23. Equity will not permit trust property to be reconveyed to one of 
 several trustees, before his duties as trustee are ended, for the same con- 
 siderations for which it was sold by them, except for the benefit of the 
 cestui que trust. Boynton v. Brastow, i,ui. 362. 
 
534 USURY. 
 
 V. EIGHTS OF THE CESTTJI QUE TETTST. 
 
 24. When real estate, held in trust by a debtor having no beneiieial 
 interest therein, has been conveyed by him to a third person, and by the 
 latter to the cestui que trust, it cannot then be levied upon as the prop- 
 erty of the trustee, notwithstanding he may have made the conveyance 
 to such third person with intent to defraud his creditors; and it is im- 
 material whether the deed from such third person to the cestui que trust 
 has or has not been recorded. Carter v. Porter, lv. 337. Eastman v. 
 Fletcher, xlv. 802. 
 
 25. Where a judgment is recovered upon a negotiable promissory 
 note after indorsement, in the name and with the consent of a nominal 
 party without interest, the judgment creditor is merely the trustee^ of 
 the equitable owner, and cannot control the judgment to the prejudice 
 of his cestui que trust or to the oppression or injury of the debtor. 
 Pratt V. Dow, lvi. 81. 
 
 26. And payment of such a judgment to the satisf^tion of the equit- 
 able owners thereof, is a good defense to an action thereon, although 
 some of the judgment debtors are the cestuis que trust for whose benefit 
 the original suit was instituted. Pratt v. Dow, lvi. 81. 
 
 See Teust, 15. 
 
 USE AND OCCUPATION. 
 See Landlord, &c., 34-38. 
 
 USURY. 
 
 1. Where a wife joins her husband in a note for money loaned to him, 
 and gives a mortgage of her real estate as security therefor, which note 
 is subsequently paid with money obtained upon another note, in which 
 she joined with her husband, and to secure which she gave another mort- 
 gage of the same estate, the husband alone is entitled to the action under 
 R. S. c. 45, to recover back from the payee of the first note a sum taken 
 as usurious interest. Roach v. Randall, xlv. 438. 
 
 2. The plaintiff having reserved interest at the rate of twelve per cent 
 per annum, when he received the note from the maker in an action 
 against an accommodation indorser, the excess over six per cent should 
 be deducted. Loud v. Merrill, xlv. 516. 
 
 3. It was not the intention that § 2, c. 45 of R. S. of 1857 should change 
 § 7, c. 69 of R. S. of 1841, or c. 92 of Pub. Laws of 1846, relating to 
 usurious contracts. JSJnight v. Frank, XLvm. 320. 
 
 4. As a note, made for the accommodation of the payee, has no valid- 
 ity, until negotiated, the retention of more than the legal rate of interest 
 
VENUE. 
 
 535 
 
 ■will be usurions, when the person discounting it knew the purpose for 
 which the note was made. Tufts v. Shepherd, xlix. 312. 
 
 5. And the maker may show the usury, in a suit against them by the 
 indorser or by another person who received the note after dishonor. 
 Tufts V. Shepherd, xlix. 312. 
 
 6. Where a promissory note embraced usurious interest, and, after 
 suit brought, the holder, without the knowledge of the maker, and with- 
 out actually receiving anything, indorsed a sum not sufficient to reduce 
 it to the amount of the actual principal and legal interest to that time, 
 the note is still usurious and subject to R. S. of 1857, c. 45. Oray v. 
 Mrown, XLIX. 544. 
 
 7. R. S. of 1857, c. 45, § 3, limits the bringing of an action to recover 
 back usurious interest to one year after the payment. Chapter 136 of 
 the Public Laws of 1862 repealed the limitation of one year, and c. 209 
 of the Public Laws of 1863 reenacted it. Furlong v. Pearce, li. 299. 
 
 8. When the payee of a negotiable promissory note, tainted with 
 usury, sells it for' no more than the amount of money actually loaned 
 thereon, with lawful interest, he w.ill not be regarded as a recipient of il- 
 legal interest, although the maker has paid the full amount, including 
 the usurious interest, to the indorsee. Atwell v. GoweU, liv. 358. 
 
 9. To enable the plaintiff to recover usurious interest under c. 136 of 
 the Public Laws of 1862, it must appear by a preponderance of evidence 
 that the plaintiff was legally liable to the defendant fpr the money 
 loaned. And where the proof manifestly fails to establish such liability, 
 a verdict for the plaintiff will be set aside. Holmes v. Gerry, ly. 299. 
 
 See Amendment, 28. 
 
 Costs, 3, 7, 8, 9, 26, 27. 
 Pkactice, 49. 
 
 VENIRE. 
 See Gkajstd Juht. 
 
 VENUE. 
 
 Statutes, prescribing the counties in which transitory actions may be 
 brought and tried, do not change their legal character; but over such 
 the court has jurisdiction in any county in which they are commenced. 
 Aliter, if the actions are local in their nature. Webb v. Goddard, xlvi. 
 505. 
 
 See Abatement, 1, 20, 21. 
 Contempt, 4. 
 Pleading, 25, 31, 67. 
 
536 VEKDICT. 
 
 VERDICT. 
 
 'I. WHEN IT MAT BE APFIKMED, AND WHAT MAY BE SUS- 
 TAINED. 
 II. WHEN IT MAY BE AMENDED. 
 III. WHEN IT MAY BE SET ASIDE. 
 
 I. WHEN IT MAY BE AITIRMED, AND WHAT MAY BE SUS- 
 TAINED. 
 
 1. In trespass, if the defendant neglects to tender an issue, and the 
 parties go to trial without any issue joined, and the plaintiif recovers a 
 verdict as upon the general issue, it will not be disturbed for this cause 
 on the defendant's motion. Maxwell v. Potter, xlvii. 487. 
 
 2. The verdict alBrmed by the jury is the verdict of the case. Buck- 
 nam v. Greenleaf, xlviii. 394. 
 
 3. When a verdict in favor of the plaintiif has been afSrmed by the 
 jury, the presiding judge has no power to enter a verdict for the defend- 
 ant, although it appears by the aifidavits of the jurors, and the written 
 verdict of them handed to the clerk, that they did find for the defend- 
 ant. Sucknam v. Greenleaf, xlviii. 894. 
 
 4. Whether the special finding of a jury was regular or not, or whether 
 against the evidence in the case or not, it will not be set aside, where it 
 could not have affected the result, or injured the party moving to have 
 it set aside. Warren v. Williams, lii. 343. 
 
 5. A verdict being an entirety, cannot be set aside as to one count 
 and sustained as to another. Frye v. Moor, liii. 583. 
 
 6. Where an action of indebitatus assumpsit upon an account annexed 
 came to this court by an appeal from the judgment of a trial justice, and 
 the cause proceeded to the jury with instructions precluding the possi- 
 Ijility of error arising from the omission to annex the particular items of 
 the account, this court declined, after verdict, to interfere to prevent a 
 judgment on the verdict against the defendant. Fernald\. Garvin, lv. 
 414. 
 
 See Real Action, 2. 
 
 n. WHEN IT MAY BE AMENDED. 
 
 7. Where the clerk, in preparing a blank verdict for the jury, made a 
 mistake in the name of one of the defendants, and the error escaped the 
 notice of the jury, it may be amended by the court, so as to conform to 
 the writ, provided the jury are present and they afiirm the verdict as 
 amended. Readfield v. Shaver, l. 36. 
 
 8. Where one, jointly with others, signs, seals, and delivers an instru- 
 ment supposed to be a perfect deed, but his name appears in no other 
 place than opposite the seal, and in the trial of a real action involving 
 the premises, the Sefect in the deed is not discovered, and the jury con- 
 sequently fiad for the defendants for the entire premises, when in fact 
 
WAIVER. 
 
 537 
 
 they owned only an aliquot part, the verdict will be amended when it 
 furnishes all the necessary facts. Peabody v. Hewett, lii. 33. 
 
 ni. WHEN IT MAT BE SET ASIDE. 
 
 9. Upon an appeal from the probate court, three distinct issues of fact 
 were submitted to the jury; (1) the signing of the will by the supposed 
 testatrix ; (2) her sanity ; (3) attestation. Upon these issues was returned 
 one verdict only, " that the instrument is not the last will and testament 
 of" the supposed testatrix, Held, that the verdict did not find the issues 
 presented, and being defective and uncertain, was void. Withee v. 
 Howe, XLV. 571. 
 
 10. Until a verdict is declared and affirmed by all the jury, in open 
 court, and constructively recorded, it is of no force. Withee v. Howe, 
 XLV. 571. Bucknam v. Greenleaf, xlviii. 394. 
 
 11. And this rule applies to special as to general verdicts. Withee y- 
 Howe, XLV. 571. 
 
 12. If the verdict affirmed was not the verdict found by the juiy, it 
 may be set aside on motion. As where the clerk is reading to the jury 
 their verdict in favor of the defendant in replevin, negligently omitted 
 the word " not." Bucknam v. Greenleaf, xlviii. 394. 
 
 VOLUNTARY ASSOCIATION". 
 
 See Joint Stock Association. 
 
 VOTE. 
 
 See Town, 23-30. 
 
 ILLEGAL VOTING. 
 
 See Indictment, 15. 
 
 WAIVER. 
 
 1. Where a lien on lumber occurred prior to the passage of c. 273 of 
 the Pub. Laws of 1856, the person having the lien will not be considered 
 
538 WAIVEK. 
 
 as having abandoned or waived his claim, if, previous to the passage of 
 the above statute, he had caused his demand to be sued, and the lumber 
 attached, if he retained possession, insisted on his lien, and no judgment 
 had been rendered in the suit. Palmer v. Tucker, xlv. 316. 
 
 2. Where a deed contained the condition "providing the grantees 
 fence the land and keep it in, repair," and the land has remained more 
 than fifty years unfenced, and the grantor, with full knowledge of the 
 breach of the condition, in the mean time, does not complain, enter, or 
 take any action to reclaim the land, it will be evidence to show a waiver. 
 Hooper v. Cummings, xlv. 359. 
 
 3. Objections to the competency of a witness are waived if he is suf- 
 fered to proceed after discovery of the objections. State v. Damery, 
 XLviii. 3ii7. 
 
 4. "Where a tenant at will, before the expiration of his tenancy, quits 
 the premises, and ofiers to surrender the key to the landlord, and upon 
 his refusal to receive it, throws it down, and after the tenant has left, the 
 landlord takes it up and retains it, but the premises remain unoccupied 
 during the remainder pf the term, the landlord thereby waives no rights. 
 Withers v. Ziarrabee, xlviii. 570. 
 
 5. If, by the terms of a bond, it is to be void, upon the failure of the 
 obligee to pay two notes at their maturity, and a strict compliance should 
 be regarded as waived by receiving payment of the first note, the other 
 being also overdue, such waiver would only prolong the payment for a 
 reasonable time. Litchfield v. Litchfield, xlix. 107. 
 
 6. Objections to testimony, not made at the trial, are waived. With- 
 erell v. Maine Ins. Co., xlix. 200. Harris v. Morse, xlix. 432. 
 
 7. Misrepresentations in obtaining a policy of insurance are waived 
 by a renewal of the policy, with a knowledge of the risk. Witherell v. 
 Maine Ins. Co., xlix. 200. 
 
 8. A proposition made by the owners of property tortiously held by 
 others, to acknowledge their title and hold it for them, is not a waiver 
 of the conversion, unless assented to by both parties. Hotchkiss v. 
 Sunt, xlix. 213. 
 
 9. The objection that a receipt under seal given on Sunday, for goods 
 attached, cannot be the foundation of an action of assumpsit, is waived, 
 if the defendant does not mention it in his specification of defense and 
 does not object to its introduction. Harris v. Morse, xlix. 432. 
 
 10. After exceptions to the ruling at nisi prius have been taken, ar- 
 gued, and decided, and no objections made to an amendment allowed at 
 nisi prius, or, if any were made, they were not sustained, it is too late, 
 when the same case comes a second time before the law court at a sub- 
 sequent stage, to raise the objection. Bailey v. Myrick, l. 171. 
 
 11. The submission of an action to referees is a waiver' of all formal 
 defects in the writ and service. Hix v. Sumner, l. 290. 
 
 12. When parties agree that their action pending in court shall abide 
 the result in another case, and a memorandum thereof is entered on the 
 docket, the defendant thereby waives a trial by jury, and the jury cannot 
 fix the damages. Cummings v. Smith, l. 568. 
 
 13. In an action to recover damages for detention of logs by a defend- 
 ant's boom in Androscoggin river, the question of the reasonable use of 
 the river, by the defendant, having been, by consent of the parties, sub- 
 
WAIVER. 539 _ 
 
 mitted to the determination of the jury, the parties thereby waived the 
 right to except to the instructions on that point. Davis v. Winslow, 
 LI. 264. 
 
 14. By prosecuting an action on a mortgage to final judgment and ex- 
 ecution, the mortgagee waives foreclosure in any other mode. Tufts v. 
 Maines, li. 393. 
 
 15. A mortgagee of personal property may waive his lien under the 
 mortgflge, and attach the same property in a suit at law. Whitney v. 
 Farrar, li. 418. 
 
 16. Acceptance or voluntary use of the subject-matter of a conti-act 
 is evidence of a performance, or a waiver, though not conclusive. But 
 if made in ignorance of the deficiency of performance, it is not a waiver. 
 
 Veazie v. Bangor, li. 509. 
 
 17. A debtor may waive his privilege, and consent that exempted 
 property may be attached. The waiver may be made by acts or neg- 
 lect to act. And when he fails to set apart or claim to set apart exempted 
 property, parcel of a large quantity, before or at the time of the attach- 
 ment, he waives his privilege. Smith v. Chadwick, li. 515. 
 
 18. Forbearance to collect a witnessed promissory note for the period 
 of nineteen years will not constitute a waiver of the payee's right to 
 satisfy a judgment founded upon said note, by a levy upon land fraudu- 
 lently conveyed by the judgment debtor. Sidensparker v. Sidensparker, 
 Lii. 481. 
 
 19. When the question is whether the party has waived certain rights, 
 the instruction that, "if he, in the conversation testified to, intended and 
 so expressed himself as to be understood by the other party, in the exer- 
 cise of common understanding, and was understood as waiving his right, 
 he did waive his right," is unobjectionable. Pope v. Machias W. JP. Co. 
 LH. 535. 
 
 20. Proceeding to trial without objection is a waiver of all known ob- 
 jections to the court. Veazie v. Bangor, Lin. 50. 
 
 See Abatement, 19, 21. 
 Bond, 11. 
 Contract, 29, 30. 
 Mortgage, 36, 37, 178. 
 Pleading, 67. 
 Practice, 83. 
 Insurance, 65, 60, 75. 
 
 WARDEIsr. 
 
 See Akbiteation, 3, 4. 
 
 WARRANT. 
 
 See Augusta, 1, 2. Bastardy, 10. Collector, 9, 22, 25. 
 Complaint, 4, 5. Deserter, 3. 
 
540 WASTE. WATER POWER. 
 
 WARRANTY. 
 
 See Sale, 20, 21. Insurance, 4, 10, 14, 21, 36, 37, 39, 48, 49. 
 
 WASTE. 
 
 1. Under R. S. of 1857, c. 95, for waste committed or suffered by the 
 tenant, the reversioner may have an action of waste to recover the place 
 wasted, and the damages; or he may have an action on the case in the 
 nature of waste to i-ecover his damages only ; but he cannot have both. 
 Stetson V. Day, li. 434. 
 
 2. If the tenant for life neglects to pay the taxes assessed upon the 
 estate during the tenancy, and thereby subjects the estate to a sale, he 
 is liable in either of these actions. Stetson v. Day, li. 434. 
 
 3. If the tenant deems such taxes illegal, notice of that should be 
 given to the reversioner, and he be indemnified against loss, if payment 
 of the tax is to be resisted. Stetson v. Day, li. 434. 
 
 4. In an action of waste, the tenant cannot deny the validity of any 
 sale for taxes, because under R. S. of 1857, c. 6, § 145, the reversioner 
 cannot do so until he has paid or tendered the full amount of the tax, 
 charges, and interest, for which the sale was made. Stetson v. Day, 
 LI. 434. 
 
 5. Where one of the stipulations in the bond in suit was, that the ob- 
 ligor " shall manage the farm in a prudent, husbandlike manner;" and 
 the plaintiff conten,ded that it was waste in law for the defendant obli- 
 gor to out and sell growing trees for his own use. Held, that the cutting 
 and selling trees is not necessarily waste in this country, in every case, 
 where, by the common law of England, it would so be held ; that regard 
 is to be had to the condition of the land, and whether good husbandry, 
 as understood and practiced here, requires that the land should be 
 cleared, or the trees felled and marketed ; that to what extent wood and 
 timber may be cut without waste, is a question of fact ; that by the 
 terms of the agreement recited in the condition of the bond, the defend- 
 ant was to manage in a prudent and hiisbandlike manner; and if the 
 cutting and selling of the timber were a violation of this stipulation, it 
 would be a breach of the bond ; otherwise, not. Drown v. Smith, lii, 141. 
 
 WATER POWER. 
 
 A. erected, on a stream, a dam and mills, which he maintained for sev- 
 eral years, when B. placed a flume in the dam, by which he drew water 
 for the use of his mill. Even though B. were the owner of the land on 
 which the dam was, he could not maintain an action against A. for allow- 
 ing the water to run to waste, to the injury of B., there being between 
 
WAY. 
 
 541 
 
 them no privity or community of interest in the property of the dam. 
 And, though B. may cause the dam to be abated as a nuisance, he can- 
 not compel A. to keep it in repair. Bradford y. Gressey, xlt. 9. 
 
 See Deed, 38; 
 Mills. 
 Riparian Rights. 
 
 WAY. 
 
 I. GENBEALLY, AND HEREIN- OP NAVIGABLE WATERS. 
 
 ir. COUNTY ROADS, AND HIGHWAYS. 
 
 III. TOWN OK PRIVATE WAYS. 
 
 IV. DAMAGES FOE LAYING OUT AND ALTERING. 
 V. DISCONTINUANCE. 
 
 VI. MAKING. 
 
 Vn. DEFECTS AND OBSTRUCTIONS. 
 
 VIII. WAYS OTHER THAN BY STATUTE, AND EIGHT OF WAY. 
 
 IX. WAYS IN UNINCORPORATED PLACES. 
 
 X. HIGHWAY SURVEYORS AND STREET COMMISSIONERS. 
 
 I. GENERALLY, AND HEREIN OF NAVIGABLE WATERS. 
 
 1. Where one turns the waters of a navigable river from its accus- 
 tomed bed, the public have a right to use it in its new channel; and if 
 the new channel becomes obstructed, they have a right to effect a suit- 
 able passage over the former channel, causing no unnecessary damage 
 thereby. Dwinel v. Veazie, xlit. 167. 
 
 2. The principles that, at common law, apply in cases of collision 
 of carriages traveling upon our highways, apply also to collisions upon 
 navigable waters. Sawyer v. Eastern Steamboat Co., xlvi. 400. 
 
 3. Penobscot river, above the tide, is not a navigable stream within 
 the meaning of R. S. of 1841, o. 126, although a highway floatable for 
 boats, rafts, or logs, and as such subject to the public use. l^eazie v. 
 Dwinel, l. 479. 
 
 4. Where mill-occupants above cast their slabs, edgings, and other 
 waste, into a stream, to sink or float, without direction or control on 
 their part, which injuriously afiects the use of the stream by occupants 
 below, they are liable to an indictment, and an action will lie therefor. 
 
 Veazie v. Dwinel, l. 479. Dwinel v. Veaeiej'L. 479. Gerrish v. Drown, 
 11. 256. 
 
 5. Riparian ownership confers no authority upon the proprietors of land, 
 to interfere with or obstruct the right of passage in the adjacent stream, 
 to the injury of another. Veazie v. Dwinei, l. 479. 
 
 6. The Androscoggin river, at Berlin, is a floatable stream and a pub- 
 lic highway. Gerrish v. Drown, li. 256. 
 
 7. Highways, whether on land or water, are for the accommodation of 
 
542 WAY. 
 
 the public for travel or transportation, and any unauthorized or unrea- 
 sonable obstruction thereof is a public nuisance. Gerrish v. Brown, li. 
 256. Lancey v. Clifford, liv. 487. 
 
 8. Each person has an equal right to the reasonable use of navigable 
 rivers, or public streams, as public highways. Veazie v. Dwinel, l. 479. 
 Qerriish v. Brown, li. 256. Davis v. Winslow, li. 264. Lancey v. Clif- 
 ford, Liv. 487. 
 
 9. What constitutes reasonable use depends upon the circumstances 
 of each particular case, and no positive rule of law can be laid down, to 
 define and regulate such use with entire precision. Davis v. Winslow, 
 LL 264. -Lancey v. Clifford, liv. 487. 
 
 10. In determining the question of reasonable use, regard must be had 
 to the subject-matter, the occasion and manner of its application, its ob- 
 ject, extent, necessity, and duration, the established usage of the country, 
 size of the stream, the fall, volume, velocity, and prospective rise and fall 
 of the water. Davis v. Winslow, li. 264. 
 
 11. The existence of highways may be established by proof of loca- 
 tion, prescription, or dedication and acceptance. Mayherry v. Standish, 
 Lvi. 342. 
 
 12. Long-continued, uninterrupted public use of a way, is a proper 
 element of proof to establish the existeni'c of a highway in either of 
 these modes. Mayherry v. Standish, lvi. 342. 
 
 13. The presumption^ arising from such evidence, that there has been 
 a legal location at some forgotten period in the past, is one of fact, and 
 liable to be rebutted. Mayherry v. Standish, lvl 342. 
 
 14. When such evidence is offered in proof of a highway by prescrip- 
 tion, it must also appear that the user was adverse and not permissive ; 
 and that it continued twenty years at least. Mayherry v. Standish, lvi. 
 342. 
 
 15. That the use of a way was permissive and not adverse, may be 
 presumed, from the unenclosed and uncultivated condition, sandy nature, 
 and trifling value of the large extent of land over which it passes. May- 
 berry V. Standish, lvi. 342. 
 
 16. When long-continued, uninterrupted public use of a way is offered 
 in proof of a highway by dedication, there must .also be evidence of an 
 acceptance by the town, in its coi;porate capacity, or of some recognition 
 of it as a highway on the part of some lawfully authorized agents of the 
 town. Mayherry v. Standish, lvi. 342. 
 
 17. The time during which a way has been publicly used is not neces- 
 sarily an essential element in the proof of highway by dedication and 
 acceptance. Mayherry v. Standish, lvi. 342. 
 
 18. Twenty years' permissive public use of a way without interruption, 
 either by the town or the owner of the land over which it passes, is not 
 sufficient evidence of a legal highway, and to charge the town with 
 its repairs. Mayherry v. Standish, lvi. 342. 
 
 19. The public use of a way " as a highway," excludes the idea of 
 permissive use. Mayherry v. Standish, lvi. 342. 
 
WAY. 543 
 
 II. COUNTY EOADS OR HIGHWAYS, 
 
 (a) Authority to lay out. 
 
 (b) Proceedings in laying out. 
 (o) Appeal. 
 
 (d) Eaileoads across highways. 
 
 (a) Authority to lay out. 
 
 20. Chapter 296 of the Special Laws of 1864, authorizing the city of 
 Belfast to erect and maintain a free bridge across the Passagassawakeag 
 river, confers no authority on the county commissioners to act in the 
 premises. Hence the report of the committee appointed on appeal from 
 the decision of the county commissioners in the premises, should be 
 rejected. Belfast v. Co. Commissioners, lii. 529. 
 
 21. Chapter 365, of the Special Laws of 1846, authorizing the county 
 commissioners to lay out and establish a road over Fish river, simply 
 enlarged their powers, without absolving them from following the legal 
 requirements in reference to the laying out of ways. Belfast v. Co. 
 Commissioners, liii. 431. 
 
 (b) Proceedings in laying out. 
 
 22. Where the time had not arrived for closing the proceedings and 
 completing the records, when the county of Androscoggin was estab- 
 lished, the court should transfer cases pending therein to the new county. 
 
 Waterhouse v. Co. Comtnissioners, xlit. 368. 
 
 See Ceetioeaei, 6, 7, 8. 
 
 Co. COMMISSIONBKS, 6; 7, 14, 15. 
 
 [(c) Ajppeal. 
 
 23. Under R. S. of 1857, c. 18, § 34, an appeal from the decision of 
 the county commissioners laying out a highway can only be taken after 
 the proceedings are recorded at the second regular term aftei the laying 
 out. Russell v. Co. Commissioners, li. 884. 
 
 24. In cases of appeal from the decision of county commissioners, un- 
 der R. S. of 1857, c. 18, § 35, the court may appoint a committee of three 
 "disinterested" persons; and where the land over which a road is laid 
 by the county commissioners is owned by a railroad company, a stock- 
 holder in the company is not "disinterested," and cannot be appointed 
 on the committee. Friend v. Co. Commissioners, liii. 387. 
 
 25. And the committee appointed under R. S. of 1857, c. 18, § 35, 
 " must make their report at the next and second term of the court after 
 their appointment." Belfast v. Co. Commissioners, Lin. 431. 
 
 26. In such cases, the S. J. Court has no authority to accept a report 
 made subsequently, although the delay in making it was in accordance 
 with the express written agreement of the parties, indorsed on the back 
 of the warrant at the time of the view and hearing. Belfast v. Co. Com- 
 missioners, Liii. 431. 
 
 27. Neither can the agreement, so entered into, operate as an estoppel 
 so as to confer jurisdiction upon the court in the premises ; but in the 
 
544 
 
 WAY. 
 
 execution of sucli power they must conform to the provisions of law re- 
 lating to the laying out of highways. Belfast v. Co. Commissioners, 
 Liii. 431. 
 
 28. It is for the appellant to see that a competent committee is ap- 
 pointed at the term when the appeal is entered. Friend v. Co. Commis- 
 sioners, Lvi. 262. 
 
 29. If one of the committee be incompetent on account of his interest 
 in the proceedings, the R. S. of 1857, c. 18, § 35, does not authorize the 
 court, at a subsequent term, to substitute a disinterested person in place 
 of the interested member of the committee. Friend v. County Commis- 
 sioners, LVI. 262. 
 
 See County Commissionbes, 13, 16, 17. 
 
 (d) Railroads across highways. 
 
 See Eaileoad, 7, 8, 9, 10, 20, 21, 41-51, 54, 55, 56. 
 Limitations, &c., 5, 6. 
 Tebspass, 1L 
 
 in. TOWN" OE PEIVATE WAT. 
 
 (a) Proceedings oe selectmen. 
 
 (b) Acceptance. 
 
 (c) Appeal and proceedings. 
 
 (a) Proceedings of selectmen. 
 
 30. By the charter of the city of Portland, the city council, composed 
 of the mayor, aldermen, and common council, have all the powers to lo- 
 cate, widen, or otherwise alter streets and pubUc ways, which, by the gen- 
 eral law, is conferred upon the inhabitants and selectmen of towns. 
 Preble v. Portland, xlv. 241. 
 
 81. By § 3 of the city ordinances, the city council are authorized to refer 
 all applications for the location or alteration of streets to a committee, to 
 inquire into the matter and report. Such committee, for this purpose, 
 represent the city council ; and all notices to parties to appear and be 
 heard before such committee are regarded as notices to appear and be 
 heard before the city council, to whom everything material may be ex- 
 pected to be reported. It is not necessary that parties should have no- 
 tice to appear and be heard before the city council. Preble v. Portland, 
 XLV. 241. 
 
 32. The location or alteration of a street, and awarding damages to 
 parties injured thereby, is not an act for the appropriation of money; and 
 it is not necessary that such act should be approved by the mayor. 
 Preble v. Portland, xlv. 241. 
 
 33. Under the statutes in force in 1810, relating to roads, it may well 
 be questioned whether the selectmen of towns had authority to do more 
 than lay out roads ; and the expression of an opinion in a report of the 
 laying out of a road, that " two bars or gates may be kept up across the 
 road," although the report was accepted by the town, confers upon the 
 owner of the land no authority thus to incumber the road. Sinks v. 
 Sinks, XLVi.,423. 
 
WAY. 
 
 545 
 
 34. Under R. S. of 1857, c. 18, § 18, the selectmen may lay out a town 
 or private way for the inhabitants of the town, from whatever place it 
 leads. Orrington v. County Commissioners, li. 570. 
 
 35. But the selectmen can lay out such a way for persons not inhab- 
 itants only when the petitioners are the owners of cultivated land in the 
 town, and the way leads from such land to a town or highway. Orrir/r/- 
 ton V. County Commissioners, li. 570. 
 
 (b) Acceptance. 
 
 36. The acceptance by the city council of the city of Portland of the 
 report of the committee appointed under § 3 of the city ordinances, locat- 
 ing or altering a street is a sufficient compliance with R. S. of 1841, c. 
 25, § 29. Preble v. PorUand, xlv. 241. 
 
 37. The conditional acceptance, by a town, of a road laid out by the 
 selectmen, is void. And the road cannot be established by user, so that 
 the town would be bound to keep it in repair in the summer, where by 
 the erection of a dam below, it was overflowed, so that it was only trav- 
 eled in the winter on the ice. State v. Calais, xlyiii. 456. 
 
 (c) Appeal and proceedings. 
 
 38. If the town refiises to accept a town or private way laid by its se- 
 lectmen on due proceedings, the petitioners may appeal, to the county 
 commissioners. Orrington v. County Commissioners, li. 570. 
 
 39. On appeal to the county commissioners, they may lay out a town 
 or private way that substantially corresponds with the way prayed for in 
 the petition. Orrington v. County Commissioners, li. 570. 
 
 IV. DAMAGES FOE LAYING OUT AND ALTERING. 
 
 40. Under R. S. of 1841, c. 25, § 5, petitioners for an increase of dam- 
 ages for the location of highway, can make their application to the coun- 
 ty commissioners at any adjournment of the second next regular session 
 after the location ; and such petition must be regarded as legally pending 
 for that purpose until the close of the session. Waterhouse v. County 
 Commisioners, xliv. 368. 
 
 41. The county in which proceedings for the location of a highway 
 were commenced and closed, is alone liable for damages to the land-own- 
 ers, although, before the road was completed, that part of the county 
 embracing the location had been set oif and annexed to another county. 
 Jones V. Oxford County, xlv. 419. Conant v. Oxford County, xlt. 419. 
 
 42. The provision of R. S. of 1857, c. 18, § 21, that "any person ag- 
 grieved " by the selectmen's estimate of damages, on laying out a private 
 way may apply for a jury on the question of daniages, refers only to per- 
 sons over whose land the way passes, and was not intended to include 
 the petitioner, for whose benefit the way is laid out, though he may be 
 adjudged to pay the damages. Goodwin v. Merrill, xlviii. 282. 
 
 43. If interest upon their verdict can be allowed at all by a jury sum- 
 moned to assess damages under R. S. of 1857, c. 18, § 12, as amended by 
 c. 39 of the Public Laws of 1866, sustained by a land-owner by the loca- 
 
 35 
 
546 WAY. 
 
 tion of town way, it can be allowed only from the time whpn the land 
 was taken, and not from the time of location. Gay v. Gardiner, lit. 477. 
 Byram v. Gardiner, lit. 477. 
 
 44. When the official return of the person appointed to preside at the 
 Tiew and hearing of such a jury has been made and filed in this court, it 
 is conclusiTe, and no amendment will be permitted. Gay t. Gardiner, 
 LIT. 477. 
 
 See Cbetioraei, 1. 
 Costs, 29, 30, 31. 
 County. CoMMissioNEES, 1. 
 Debt, 3. 
 
 V. DISCONTINTJAlSrCE. 
 
 45. Where a highway had been duly located by the joint adjudication 
 and action of the county commissioners of several counties, their subse- 
 quent action, under the original petition, declaring a portion of such lo- 
 cation discontinued, because the damages awarded by a jury or commit- 
 tee, to the land-owners, were excessive, is unauthorized and void. Jones 
 T. Oxford County, xlt. 419. Conant Y.Oxford County, xlt. 419. 
 
 46. Nor can the commissioners of the county wherein a portion of 
 such high way, is located, legally discontinue any part thereof, if they 
 deem the damages awarded excessive. Jones v. Oxford County, xlt. 
 419. 
 
 47. By R. S. of 1841, c. 25, § 30 (R. S. of 1857, c. 18, § 20), the inhab- 
 itants of a town are authorized to discontinue a town way at a meeting 
 legally called for that purpose without any preTious action of the select- 
 men in regard to the discontinuance. State v. Brewer, xlt. 606. 
 
 48. If, after a road has been so long used for travel of foot-passengers 
 that the public had acquired an easement, the town should lay out 
 another near it, the latter would not operate a discontinuance of the for- 
 mer, if the record is silent upon the subject; but the public easement 
 would remain unaffected by the new location. Chadwick t. McCaus- 
 land, xLTii. 342. 
 
 VI. MAKING. 
 
 49. The laying out of a way across a rlTcr by the commissioners is a 
 judicial act; but the construction of it and the erection of a bridge, were 
 acts purely ministerial, and the same sules of law are to be applied to the 
 city, as would be to individuals in the performance of acts of a like min- 
 isterial character. And such a case is distinguishable from one of ordi- 
 nary repair of a highway, falling within the jurisdiction of a highway 
 surveyor. Stone v. Augusta, xlti. 127. 
 
 50. In making a highway, a town is not ordinarily required to make 
 the travelled path the whole width of the road. Dickey t. Maine Tel. 
 Co., XLTI. 483. 
 
 51. If public conTenience and necessity require the laying out or al- 
 teration of a way, it is immaterial at whose expense it is made, or that 
 
WAY. 
 
 547 
 
 private individuals contribute to relieve the public burdens. Gay v. 
 Bradstreet, xlix. 580. 
 
 VII. DEFECTS AND OBSTETTCTIONS. 
 
 (a) Damages to persons and peopbrty. 
 
 Cb) Indictment. 
 
 (o) Obsteuctions by individuals. 
 
 (a) Damages to persons and property. 
 
 52. An action on the case brought under R. 8. of 1841, c. 25, § 89, 
 against a town for a personal injury, caused by a defect in its highway, 
 and which action was pending when R. S. of 1857, c. 87, § 8 took effect, 
 will not, after that time, abate by the death of the plaintiff, but may be 
 prosecuted "by the executor or administrator of the deceased. Hooper v. 
 Gorham, xlv. 209. 
 
 53. Towns are not liable for obstructions on the portions of a highway 
 not constituting the traveled path, and not so connected with it as to 
 affect the safety of the traveled portion. Dickey v. Maine Tel. Co., xlti. 
 483. 
 
 54. A traveler on a highway may go out of the beaten track, at his 
 own risk, as between himself and the town ; but in so doing, he is entitled 
 to protection against the unlawful acts of the persons and corporations. 
 Dickey v. Maine Tel. Co., xlvi. 483. 
 
 55. In an action for a personal injury, caused by a defective highway, 
 a request to instruct the jury " if they find that at the time of the acci- 
 dent the plaintiff was intoxicated, this, of itself, would constitute such a 
 want of care as would preclude him from the right to recover," was prop- 
 erly refused, it being a question of fact. Stuart v. Machiasport, xlviii. 
 477. 
 
 56. In such an action, it rnust affirmatively appear, that ordinary care 
 was exercised in passing over the highway ; and if, on the whole testi- 
 mony on this point, the weight of evidence is clearly against the plaintiff, 
 a new trial will be granted. Gleason v. JBretnen, l. 222. 
 
 57. If there are two efficient, independent proximate causes of an in- 
 jury sustained by a traveller on a highway, the primary cause being one 
 for which the town is not responsible, and the other being a defect in 
 such highway, the injury cannot be said to have been received "through 
 such defect ; " and the town is not liable therefor. And it makes no dif- 
 ference that the traveler himself was in no fault. Moulton v. Sanford, 
 LI. 127. 
 
 58. If the officers of a town, in constructing or repairing a public way, 
 dispose of the waste rocks, or earth, for the benefit of some individual, so 
 as to improve a private way belonging to him, the repairs thus made on 
 the private way are made for its owner, and not for the town, and the 
 town is not estopped from denying its location, in an action to recover 
 for injuries sustained in consequence of a defect in such private way. 
 Gilpatrick v. Diddeford, li. 182. 
 
 59. R. S. of 1857, c. 18, § 62, assumes the existence of a way de facto, 
 in actual use at the place where the injury occurred ; and, although the 
 
548 WAY. 
 
 party cannot deny the location of the way where the repairs are made, 
 he may deny that the place where the injury occurred is the same way. 
 Gilpatrick v. Biddeford, li. 182. Gilpatrick v. Biddeford, liv. 93. 
 
 60. The fact that the way is "continnous" is not the only fact to be 
 considered in deciding whether the injury and the repairs are both on the 
 same way, and is a question of fact depending on the circumstances of 
 each case. Gilpatrick v. Biddeford, li. 182. 
 
 61. The distance from the defect to the place of repairs ; the length 
 of time the way has been used ; locality, whether in a city or in the 
 country ; and whether there are intersecting roads or streets, together 
 with the continuity or oneness of the way are also to be considered. Gil- 
 patrick V. Biddeford, li. 182. 
 
 62. If the highway at a railroad crossing is defective and the town 
 has notice of it, it is no defense that the particular defect was one which 
 the railroad company ought to have repaired. Wellcome v. Be^ds, li. 313. 
 
 63. In an action against a town for personal injury in consequence of 
 defective way, the defendants are liable for the increased damages (if 
 any), arising from the unskillful treatment of the plaintiff without fault 
 on his part, by a sui-geon of ordinaiy professional skill and knowledge. 
 Stover V. Bluehill, li. 439. 
 
 64. To sustain such an action, it must appear that the town had actual 
 "reasonable notice of the defect," although the jury may infer actual no- 
 tice, in any case, from the circumstances proved. Bragg v. Bangor, li. 
 532. 
 
 65. Towns are not liable for injuries occasioned by such obstructions 
 as are necessaiily created in highways in order to repair them, provided 
 reasonable measures are taken to notify travellers of their existence. 
 Such obstructions are not, in any proper sense, defects. Morton v. Frank- 
 fort, LV. 46. 
 
 66. A plank eight or ten feet long and ten or twelve inches wide, 
 standing in a hole over a culvert, and in the traveled part of the way is 
 in the day-time " a reasonable notice " that that portion of the road is 
 not in a usable condition. Morton v. Frankfort, lv. 46. 
 
 67. In an action on the case for an injury occasioned by a defect in a 
 highway in the defendant town, the plaintiff's declaration alleged, inter 
 alia, that said "highway was so defective and out of repair and amend- 
 ment, by reason of an insufficient and defective causeway, — said cause- 
 way having broken down near the end, — thereby obstructing the flow of 
 the water, causing a large accumulation of ice on and near said cause- 
 way, and the earth to be gullied out on one side thereof, that in passing 
 upon said road and around said defect and causeway, the wheel of the 
 plaintiff's wagon broke through the ice," and the plaintiff was thrown 
 from his wagon and injured, and that the defendants had notice "of said 
 defect, obstruction, and want of amendment as aforesaid." The proof as 
 to the obstruction of the water was, not a breaking down, but a depres- 
 sion of one end of the causeway occasioned by the inadequate capacity 
 of the culvert to discharge the water flowing there, and the consequent 
 accumulation of ice under and upon it. Held, (1) That there was no va- 
 riance as to the obstruction; (2) That the parenthetical clause might be 
 rejected as surplusage ; (3) That, as matter of description, it is not es- 
 sential in ascertaining the identity of the cause of action ; and (4) That 
 not the insufficient and defective causeway only, but the accumulation 
 
WAY. 
 
 549 
 
 of ice through which he broke and the condition of the road, both in and 
 out of the traveled path, are complained of as the defect causing the in- 
 jury, and of which it is alleged the defendants had notice. Holt v. Pe- 
 nobscot, LVI. 15. 
 
 68. Notice of a defect in a highway may be inferred from the length 
 of time during which the defect has existed. Holt v. Penobscot, lvi. 15. 
 
 " 69. And the state of the weather and its natural effect upon the ice 
 over which the public have traveled are proper matters for the consid- 
 eration of the jury upon the question of notice. Holt v. Penobscot, 
 LVI. 15. 
 
 (b) Indictment. 
 
 70. Towns may be indicted and fined for allowing their highways to 
 become unsafe and inconvenient, although they may have no notice of 
 any defect. Bragg v. Bangor, li. 532. 
 
 (c) Obstructions by individuals. 
 
 71. No private person or corporation has the right to place or cause 
 any obstruction, which interferes with the rights of others, on any part 
 of the highway, within its exterior limits. For such obstruction, the ex- 
 tent of a town's liability is not the measure of the liability of a private 
 person. Dickey v. Maine Tel. Co., xlvi. 483. 
 
 72. If a private way be unlawfully obstructed by the owner of the ad- 
 joining land, a person entitled to use the way may pass over the adjoin- 
 ing close, so far as may be necessary to avoid the obstructions, taking 
 care to do no unnecessary damage. Kent v. Judhins, Lin. 160. 
 
 73. P. recovered judgment against the plaintiffs for damages occa- 
 sioned by a defect in one of their highways. The defect complained of 
 was an excavation caused by the defendants, who were duly notified of 
 the pendency of the former suit. In an action by the plaintiffs against 
 the defendants to recover the amoiint of such judgment. Held, (1) That 
 the verdict and judgment were conclusive evidence of the existence of 
 the defect, the injury to P. while in the exercise of due care, and the 
 amount of the injury; and (2) That it was incompetent for the defend- 
 ants to prove that, in making the excavation, they were guilty of no neg- 
 ligence, and that they properly guarded and covered the same at the 
 time of leaving off work on the night of the alleged injury. Portland 
 V. Richardson, lit. 46. 
 
 74. If a private citizen be guilty of a nuisance in making an excava- 
 tion in a public highway, he will be responsible for injuries arising there- 
 from during its continuance. Portland v. Richardson, liv. 46. 
 
 Vm. "WAYS OTHER THAN BY STATUTE. 
 
 75. As a road may be established by user, the rights of the public will 
 be according to the user. Thus, where a road had been encumbered 
 for forty years with movable bars or gates, the right to use the road still 
 existed, subject to such limitation. Hinks v. Hinks, xi.vi. 423. 
 
 76. If a road has been so long used for the travel of foot-passengers 
 
550 WAY. 
 
 that the public have acquired an easement in the land over which it 
 passed, the town, as an incident to that right, may make such repair 
 thereof as may be necessary to render it safe and convenient for travelers 
 on foot, by leveling the land and- building sidewalks thereon. Chad- 
 wick v. Mc Causland, xlvii. 342. 
 
 77. A road cannot be established by user, so that the town would be 
 bound to keep it in repair in the summer, where by the erection of a dam 
 below, it was overflowed, so that it was only traveled in the winter upon 
 the ice. State v. Calais, xlviii. 456. 
 
 78. The dedication of the use of a sidewalk to the public, for the pur-, 
 pose of passing over it,'is not shown to be complete without proof of an 
 acceptance. Muzzey v. Davis, nv. 361. 
 
 IX. -WAYS IN UNINCOEPORATED PLACES. 
 
 79. The proceedings of the county commissioners, under R. S. of 1841, 
 c. 25, § 44, must show at whose expense such road is laid out over any 
 one of the townships, whether at the expense of the proprietors, or the 
 county, or partly of each. And it is not competent for the commission- 
 ers to order that one of such townships shall pay the expenses of opening 
 and making such road through other townships. IIow6 v. Co. Commis- 
 sioners, XLvi. 332. 
 
 80. The commissioners must also decide whether, in their opinion, a 
 township over which such road is laid would be enhanced in value 
 thereby, and they must assess on each tract, which they consider to be 
 enhanced in value, such sum as in their opinion would be proportionate 
 to the value and benefits likely to result from the establishment of the 
 road. Howe v. County Commissioners, xlvi. 332. 
 
 X. STJBVEYOES OP HIGHWAYS" AND STREET COMMISSIONERS. 
 
 81. The acts of a street commissioner of a city, within the scope of 
 the trust committed to him, are, prima facie, the acts Of the city; whether 
 they are within the general authority conferred is a question of fact. Gil- 
 patric/c v. Biddeford, li. 182. 
 
 82. A highway surveyor cannot maintain an action against his town 
 for money paid by him for labor in repairing the highways, unless he 
 obtained written authority from the selectmen to employ the labor, al- 
 though the amount of taxes assigned to his limits has not been expended, 
 and the persons taxed neglect or refuse to pay such taxes, after due 
 notice. Ingalls v. Auburn, li. 352. Getchell v. Wells, lv. 433. 
 
 83. A town is not liable for the tortious taking and use by the high- 
 way surveyor of split stone (lying on land tak-en for a highway, and 
 belonging to a private person), for the purpose of constructing a culvert 
 across the highway which he is constructing. Small y. Danville,iA. 359. 
 
 84. It was not the intention of R. S. of 1857, c. 18, § 62, to authorize 
 street commissioners, on their own motion, to bind their town or city, 
 by constructing a way in whole or in part where none previously existed. 
 Gfilpatrick v. Biddeford, lit. 93. 
 
WHARF. -widow's ALLOWANCE. 551 
 
 85. The selectmen of the defendant town addressed and delivered to 
 the plaintiff, a duly appointed and sworn highway surveyor of the town, 
 a written order, officially signed, of the following tenor: — "You are re- 
 quested to keep the snow broken down within the limits of your district, 
 so as to make it passable, and to do it with as little expense to the town 
 as possible, and to keep an account of each one's own labor, and make 
 return of it to us five days before next annual meeting." Thereupon 
 the plaintiff employed several men to aid him in suitably removing the 
 snow, and paid them a reasonable compensation therefor, but made no 
 return of their labor as directed. In assumpsit for his own labor and 
 for tlie money paid his employees, Held^ (1) That the written order 
 was directed to the plaintiff in his official capacity, and required the per- 
 formance of an official duty ; (2) It did not authorize him to perform 
 the labor, pay the employees, and look to the town for reimbursement ; 
 but that (3) As a surveyor under the statute, to employ, with the con- 
 sent of the selectmen thus expressed, men, of whose work he was to 
 make a return, and who would thereby become entitled to their pay from 
 the treasury of the town. Getchell v. Wells, lv. 433. 
 
 WHARF. 
 
 The lessee of a private wharf, through whose procuration a vessel is 
 hauled alongside of his wharf, to be there loaded by him with his cargo, 
 in accordance with a contract of affreightment, is liable to the owners 
 for an injury occasioned to the vessel while loading, by grounding at 
 low tide on the rocks in the berth, which was represented by the occu- 
 pant of the wharf to be safe, and not known by the owners of the vessel 
 to be otherwise. Barrett v. Black, lvi. 498. 
 
 WIDOW. 
 See DowEE, 1, 2, 3, 7, 8. 
 
 WIDOW'S ALLOWANCE. 
 
 1. Where a judge of probate has decreed an allowance to a widow, 
 and the administrator has paid a part of it, and taken receipts therefor, 
 he is bound to pay the balance on demand, on tender of a receipt there- 
 for, and he is not authorized to refuse payment until he obtams a 
 discharge or receipt in full. Partial receipts amounting to the whole 
 amount of allowance would be perfect vouchers before the judge of pro- 
 bate. Godfrey v. Getchell, xlvi. 537. 
 
552 
 
 WILL. 
 
 2. The death of a widow abates her petition for an allowance, if no 
 final decree had been made. Tarbox v. Fisher, l. 236. 
 
 3. Under R. S. of 1857, c. 65, § 13, a widow's claim for an allowance 
 rests merely on the discretion of the court. Kersey v. Bailey, lii. 198. 
 
 4. The circumstances under which this court will not reverse a decree 
 of the judge of probate refusing an allowance to a widow who was in no 
 fault. Mersey v. Bailey, lii. 198. 
 
 5. The allowance to a widow is to be determined by the law of the 
 domicil of her husband. Gilman v. Gilman, liii. 184. 
 
 6. By R. S. of 1857, c. 63, § 24, the supreme court of probate may 
 reverse or affirm, in whole or in part, the sentence or act appealed from, 
 pass such decree thereon as the judge of probate ought to have passed, 
 remit the case to the probate court for further proceedings, or take any 
 order therein that law and justice require. Gilman v. Qilman, liii. 184. 
 
 7. An appeal from a decree fixing the amount of allowance, vacates 
 the judgment appealed from, and the whole subject-matter of the ap- 
 peal is, without any statute restriction, open to the appellee in the 
 supreme court of probate. Qilman v. Gilman, Lm. 184. 
 
 8. Where an heir appealed from a decree of an allowance, for the rea- 
 son that it was " excessive, unreasonable, and not necessary, according to 
 the degree and estate of her husband and the state of the family under 
 her care," Held, that the supreme court of probate might increase the 
 amount decreed below, if, in its opinion, law and justice require it. Gil- 
 m,an v. Gilman, liii. 184. 
 
 9. Under a decree for allowance made under R. S. of 1857, c. 65, the 
 widow may select a judgment founded on a promissory note returned in 
 the inventory ; and, as accessory to the principal, she is entitled to the 
 interest which accrued after the appraisal. Gilman v. Gilman, liv. 
 531. 
 
 10. Where such a judgment had been recorded by the executors and 
 partially satisfied by a levy on personal and real estate, and the time of 
 redemption had expired, the widow is entitled to the proceeds of the 
 levy upon the personal property, together with a release from the exec- 
 utors of the unredeemed real estate. Gilman v. Gilm,an, liv. 531. 
 
 WILL. 
 
 I. EXECUTION AND ATTESTATION OP DIFFERENT KINDS OP 
 
 WILLS. 
 II. PROBATE. 
 III. CONSTRUCTION. 
 
 EXECUTION AND ATTESTATION OP DIFFERENT KINDS . OF 
 WILLS. 
 
 (a) Statute wills. 
 
 (b) Ntjnctjpativb. 
 
 (C) POBBIGN. 
 
WILL. 553 
 
 (a) /Statute wills. 
 
 1. A person who, at the time of the execution of the will in question, 
 received from the testator a deed of land, and whose mother, by the 
 will, was made the principal devisee, is a competent and credible wit- 
 ness within the statute of wills. Nash v. Seed, xlvi. 168. 
 
 2. The word "disinterested" was inserted in R. S. of 1857, c. 74, § 1, 
 to prevent the changes in the law of evidence applying to the attesta- 
 tion of wills ; and it means competent, and is opposite to interested. 
 Jones V. Zarrabee, xLvn. 474. Warren v. Baxter, xlviii. 193. 
 
 3. A will is duly attested, notwithstanding one of the attesting wit- 
 nesses is named therein as executor. Jones v. Larrahee, xlvii. 474. 
 
 4. The competency of witnesses to a will, is to be determined by their 
 condition at the time the will is executed. Warren v. Baxter, xlviii. 
 198. 
 
 5. The interest which will disqualify a person from being a witness to 
 a will, must be a present, certain, legal, vested interest, not uncertain or 
 contingent. Warren v. Baxter, xlviii. 198. 
 
 6. The privilege of attending public worship does not constitute such 
 an interest ; nor the fact that a person is a member of a particular church 
 and society, worshipping in a certain meeting-house, or that he owns a 
 pew therein, does not, of itself, disqualify him as a witness to a will con- 
 taining a legacy to that church and society. Warren v. Baxter, xLvm. 
 
 '193. 
 
 (b) Nuncupative. 
 
 7. At common law, a will of personal property, written in the tes- 
 tator's own hand, without seal, though no witnesses were present at its 
 publication, is good ; and no particular form of expression is material, if 
 only the testator's intention is manifest. Leathers v. Greenacre, liii. 
 561. 
 
 8. By R. S. of 1857, c. 74, § 18, "a soldier in actual service, . . . may 
 dispose of his personal estate and wages," as he might have done under 
 the common law. Leathers v. Greenacre, liii. 561. 
 
 9. " In actual service " and " engaged in an expedition,'' are synon- 
 ymous terms ; and the term " expedition " is not to be confined to that 
 movement of the troops which immediately precedes the actual conflict 
 and shock of battle. Leathers v. Greenacre, vai. b&l. 
 
 10. If, during the late rebellion, — and after he had been mustered 
 into the military service of the United States, but while he remained in 
 barracks, or while thus quartered at any military station in one of the 
 loyal States not exposed to the incursions of the enemy, and before he 
 had crossed over to the seat of war with his regiment to take part in the 
 hostilities existing there, and before he had begun to move under mili- 
 tary orders against the foe, — a soldier had made a will without observing 
 the usual statute formalities, it would not be deemed the will of a " sol- 
 dier in actual service." Leathers v. Greenacre, liii. 561. 
 
 11. But having marched into the enemy's country from which he never 
 returned, and encamped among a hostile population, and acting in con- 
 junction with soldiers who were confronted by the rebel array, although 
 he was in winter-quarters and not, at the time of making his will, occu- 
 
554 
 
 WILL. 
 
 pied with any present movenaent of the troops, but was on some detached 
 service, he would be deemed a " soldier in actual service," and his will 
 be sustained if good at common law. Leathers v. Greenacre, liii. 561. 
 
 12. In August, 1862, J. B. L. enlisted in the first regiment of Maine 
 cavalry, and was mustered into the United States military service. March 
 6, 1863, while lying in camp at Stafford C. H., Va., he wrote a long let- 
 ter to the defendant (with whom he had previously deposited the two 
 notes mentioned in the letter), in which he said : "As life is uncertain, I 
 will give you my wishes in regard to my property, if I should fall here." 
 "The face of the note that" G. H. L. "owes nie and now in your hands, 
 and also the note against" C. S., " and interest, I want you to distribute 
 among my brothers and sisters as you think proper, and all other proper- 
 ty to my wife, and for her to pay my debts," (signed). March 2, 1864, he 
 started on a raid to Richmond in company with others under military or- 
 ders, was captured, and died in prison March 16, following. Held, that 
 J. B. L. was a " soldier in actual service," when he wrote the letter, and 
 that it was a will entitled to probate. Leathers v. Greenacre, Lin. 561. 
 
 (c) Foreign. 
 
 13. If the domicil of the testator, at the time of his death, be in any 
 other of the United States, his will, when its validity is not questioned, 
 may be allowed and recorded in this State as a foreign will ; and the 
 movable property in this State, belonging to the testator's estate, will be 
 disposed of under the will, according to the laws of the State in which 
 the domicil was established. Gilman v. Gilman, lii. 165. 
 
 II. PROBATE. 
 
 14. The heirs of a testator, who contest the probate of his will, arei not, 
 excluded as witnesses, " as heirs of a deceased party," and as being with- 
 in the exception of R. S. of 1857, c. 82, § 83. JSFash v. Beed, xlvi. 168. 
 
 15. In contesting a will, a person named therein as executor, is not "a 
 party prosecuting or defending," within R. S. of 1857, c. 82, § 83 ; but 
 the provisions of that section apply to contests that operate upon and 
 bind the estate, to which the testator, if living, would be a party. MU- 
 lay V. Wiley, xlvi. 230. McKeen v. Frost, xlvi. 289. 
 
 16. The execution of a will was proved by two of the subscribing wit- 
 nesses thereto, where it was shown that the other witness was, and for 
 several years had been, residing in California. McKeen v. Frost, xlvi. 
 289. 
 
 III. CONSTRUCTION. 
 
 17. A man died, leaving children of age and children under age. By 
 his will, he directed that the " income " of his estate should be applied, un- 
 der the " control and management " of his widow, as executrix and trus- 
 tee, to provide, support, and furnish a home for his minor children Until 
 a period named, so that they should have "the same privilege and assist- 
 ance the older children had enjoyed " in his lifetime. And the remain- 
 der of the estate, after paying a legacy, he directed to be divided equally 
 
WILL. 655 
 
 among all his children, at the end of the period. But the annual income 
 proved inadequate for the purposes expressed by the testator. Held, that 
 a court of equity may give relief, by ordering a sale of part of the estate, 
 for the purpose of adding to the income, and fulfilling the intention of the 
 testator. Elder v. Elder, l. 535. 
 
 18. It seems, that this may be done, not only in cases where it is the 
 future estate of the beneficiaries alone which will thereby be broken in 
 upon, but even where the future of otheVs will be diminished, to supply 
 the present need of the beneficiaries. Elder v. Elder, l. 535. 
 
 19. If the domioil of the testator, at the time of his death, be in this 
 State, the probate court here will have original jurisdiction, and our laws 
 must govern the construction of the will, and the disposal of the prop- 
 erty. Gilman v. Gilman, lii. 165. 
 
 20. A testator bequeathed to his mother $350, to be paid quarterly, 
 during her natural life, and after decease, the same sum to his two sisters 
 named, and the survivor of them, to be equally divided, payable quarter- 
 ly. The will then provided, "I give, bequeath, and devise all the resi- 
 due of my estate, real or personal, of which I shall die seised, to my be- 
 loved wife " (named), " and my dear son " (named), " it being understood 
 that the estate is subject to the payment of .the annual sum of $350." 
 "And it is my wish that my executrix retain and properly invest a sum 
 sufficient to pay the annuities to my mother and sisters, and, at their de- 
 cease, to pay the sum so retained and invested to my wife and son." The 
 will, in the sixth and last article, appointed the wife executrix, and then 
 continued : — " wishing and directing her to invest a sufficient sum to pro- 
 duce annually the sum of $350, to be paid as hereinbefore directed." Held, 
 (1) That the sum to be " retained and properly invested," was limited to the 
 amount required for the purchase of the annuity, and after such investment, 
 the residuary legatees were entitled to the balance ; (2) That the adminis- 
 trator could not invest and hold invested a surplus above the amcyjnt now 
 sufficient, and, in the exercise of ordinary care and prudence, likely to 
 remain sufficient to produce the annuity, commissions, and contingent ex- 
 penses, to guard against contingent losses and possible depreciations of 
 securities ; but when a " sum sufficient " is invested, a just regard being 
 had to the future as well as the present in determining the kind and 
 nature of the investment to be made, the annuitants must abide the fate 
 of the investment; and (3) That by the provision "that the estate is 
 subject to the payment of the annual sum of $350," the testator intend- 
 ed that the estate should be subject to the investment of a " sum suffi- 
 cient " to be expended in the purchase of the annuity. Orr v. Moses, 
 LII. 287. 
 
 21. "Where there is a conflict in the different provisions of a will, the 
 last expression of the testator's intention shall govern. Orr v. Moses, lh. 
 287. 
 
 22. After making certain specific bequests, the will proceeds as fol- 
 lows : — "I give and bequeath all my property, which shall remain, to 
 the sons and daughters of my brothers William, Mark, John, George, 
 and Horatio, equally, and to the heirs of their bodies respectively ; and, 
 in case of the failure of the heirs of the body or any or either of them, it 
 is my wish that the share of such deceased one, without issue, should be 
 divided among those who shall survive, and the heirs of their bodies re- 
 spectively, share and share alike." In an action by one of the children of 
 a daughter of the testator's brother Mark, to recover a distributive share 
 
556 WITNESS. 
 
 under the will, Hdd, (1) That the gift to "the heirs of the body" of 
 the "sons and daughters" of the testator's brothers, was original and 
 independent, and not substitutionary; and (2) That the children of a 
 nephew or niece, who was dead at the date of the will, are collectively 
 entitled to a share in the residuary estate in like manner as the nephews 
 and nieces themselves, or the heirs of the bodies of those who may have 
 died since the will was made. 'Wheeler v. Mien, liv. 232. 
 
 See Devise, &c., 1, 2, 3, 4, 5, 6, 7, 9, 13, 14, 16, 17, 18, 19, 27. 
 
 WITNESS. • 
 
 I, COMPETENCY. 
 
 II. OBJECTIOISr TO COMPETENCY. 
 
 III. IMPEACHMENT. 
 
 IV. CONFIDENTIAL COMMUNICATIONS. 
 V. EXPERTS. 
 
 I. COMPETENCY. 
 
 1. Parties being witnesses, must testify, subject to the same rules as 
 other witnesses, unless restricted by the statute. Wheelden v. Wilson, 
 
 XLIV. 11. 
 
 2. Chapter 266 of the Public Laws of 1856, embraced prosecutions 
 under the bastardy statute and made respondents in such cases compe- 
 tent witnesses. Murray v. Joyce, xliv. 342. 
 
 3. This statute however has not done away with the preliminary con- 
 ditions essential to the complainant's being a witness. Murray v. Joyce, 
 XLIV. 342. 
 
 4. By virtue of R. S. of 1857, c. 82, § 83, in a suit brought by an ad- 
 ministrator of an estate, the father and sole heir of the intestate is a com- 
 petent witness. Qunnison v. Lane, xlt. 165. Nash v. Heed, xlvi. 168. 
 
 5. This chapter does not change the law,, which on account of his 
 marital relation, excludes the husband from testifying in a suit to which 
 his wife is a party. McKeen v. Frost, xlvi. 239. 
 
 6. In a suit against a town for an injury to the plaintiff, caused by a 
 defect in the highway, the plaintiff is a competent witness under R. S. 
 of 1857, c. 82, although no inhabitant of the town has been offered as a 
 witness tor the defendants. Palmer v. Bangor, xlvi. 325. 
 
 7. By the common law the wife could not be a witness in a case in 
 which she and her husband are parties, even by agreement of parties. 
 Dwelley v. Dwelley, xlvi. 377. 
 
 8. Neither c. 181 of the Public Laws of 1855, o. 266 of 1856, noT R. S. 
 of 1857, c. 82, §§ 78 to 83, removes the disability of the husband or wife 
 to give testimony in a libel for divorce, to which they are parties. Dwelley 
 v. Dwelley, xlvi. 377. 
 
 9. In an action commenced by the executor of A. against B., the widow 
 ot the plaintiff's testate is a competent witness to testify to facts which 
 
WITNESS. 557 
 
 did not come to her knowledge through any communication from her 
 husband, but by her being present when they transpired. Walher v. San- 
 horn, XLVi. 470. 
 
 10. An accomplice in a crime is a competent witness in a civil action 
 involving the same facts, and his credibility is for the jury. Sinclair v. 
 Jackson, xlvii. 102. 
 
 11. R. S. of 1857, c. 82, § 83, includes executors on the estate of one 
 in prison under sentence of death, and the defendant cannot be a witness 
 under that statute in an action in T^hich such executor is plaintiff in his 
 oiBcial capacity. Knight v. Brown, XLvn. 468. 
 
 12. The design of c. 102 of the Public Laws of 1859, was only to re- 
 move the objection which was based on grounds of public policy, to the 
 admissibility, as witnesses, of husband and wife, and not to render them 
 competent, where, by law, their testimony was excluded on a diiferent 
 gi'ound. Drew v. Roberts, xlviii. 35. 
 
 13. In a suit against a husband and wife, brought by one in his ca- 
 pacity of executor, their testimony was rightfully excluded, in the ab- 
 sence of evidence that the executor was only a nominal plaintiff. Drevj 
 V. Roberts, xlviii. 35. 
 
 14. But by virtue of c. 102 of the Public Laws of 1859, the wife is 
 made a competent witness for her husband, in a suit against him, by an 
 administrator*, she not being a party to the record. Thompson v. Wad- 
 leigh, xLvin. 66. 
 
 15. In case for deceit involving a case of cheating by false pretences, 
 the plaintiff, by virtue of R. S. of 1857, c. 82, § 79, is not a competent 
 witness, " unless the defendant offers himself as a witness." Carlisle v. 
 McNamara, xlviii. 424. 
 
 16. Whether the "cause of action implies an offense against the crim- 
 inal law," so that the plaintiff is to be excluded as a witness, is to be de- 
 termined by the allegations in the writ. Carlisle v. McNamara, xlviii. 
 424. 
 
 17. In an action, where the question in issue is, whether the property 
 in controversy is a part of the estate, of which the defendant is adminis- 
 trator, the parties are, under R. S. of 1857, c. 82, competent witnesses. 
 Beach v. Pennell, l. 587. • 
 
 18. Thus in replevin for certain articles of merchandise, when the de- 
 fendant alleged, by way of brief statement, that the property was part 
 of an estate of which she was an administratrix, the plaintiff was permit- 
 ted to testify that the goods were not sold by him to the defendant's 
 intestate, but simply consigned for sale. Beach v. Pennell, l. 587. 
 
 19. Where two are jointly indicted, and one pleads guilty, he is a com- 
 petent witness for the other respondent on his trial. State v. Jones, li. 
 125. 
 
 20. The plaintiff is a competent witness in an action against a town for 
 an injury received in consequence of a defective way. Stover v. Blue- 
 hill, LI. 489. 
 
 21. If the plaintiff's intestate were the owner of the note in suit, the 
 administrator of the intestate cannot be regarded as a nominal party, 
 under c. 79 of the Pub. Laws of 1859. Farnum v. Virgin, m. 576. 
 
 22. In an action by an administrator against the maker of a note, the 
 
558 
 
 WITNESS. 
 
 defendant is not a competeut witness to prove payment of the note be- 
 fore the intestate's death. Farnum v. Virgin, lii. 576. 
 
 23. Chapter 280 of the Pub. Laws of 1864, allows a person charged 
 with crime to be a witness in his own trial " at his own request," and is 
 constitutional. /State v. Bartlett, lv. 200. 
 
 24. So much of R. S. of 1857, c. 82, § 79, as provided that parties shall 
 not be witnesses in suits when the cause of action implied an offense 
 against the criminal law, &c., was repealed by c. 272 of the Pub. Laws 
 of 1864. Bucknam v. Perkins, lv. 490. 
 
 25. By Pub. Laws of 1859, c. 102, in the trial of civil actions, the 
 husband and wife of either party shall be deemed competent witnesses, 
 when the wife is called by or with the consent of her husband, and the 
 husband by or with the consent of his wife. Bucknam v. Perkins, 
 LV. 490. 
 
 26. In the trial of an appeal from the decision of commissioners of 
 an insolvent estate, the creditor cannot testify in his own behalf, as mat- 
 ter of right, but the statute leaves it discretionary with the court to 
 require him to do so on motion of the defendant, when the discovery of 
 the truth seems to render it necessary. Gould v. Carlton, lv. 511. 
 
 See Bastaedt, 8. 
 
 II. OBJECTION" TO COMPETENCY. 
 
 27. If the incompetency of a witness, for any cause, becomes manifest 
 by legal evidence, at any stage of the trial, his testimony should form 
 no part of the evidence to be considered, if seasonably objected to. &ta^ 
 V. JDamery, xlviii. 327 
 
 28. Objections to the competency of a witness, known to the party 
 objecting, are not seasonably taken, if not made before his examination. 
 State V. Bamery, xlviii. 327. 
 
 29. The infamy of a witness can be shown only by the record. State 
 V. Bamery, xlviii. 327. 
 
 III. IMPEACHMENT. 
 
 30. Where the plaintiff has introduced evidence to prove the declara- 
 tions of the defendant unf?iyorable to the character for truth and veracity 
 of one of the witnesses for the defense, it is, in effect, an impeachment 
 of the witness' character, and the defendant may be admitted to testify 
 that the character of the witness for truth and veracity is good. Pren- 
 tiss V. Roberts, xlix. 127. 
 
 IV. CONFIDENTIAL COMMUNICATIONS. 
 
 31. The law recognizes all confidential communications, and whatever 
 has come to the knowledge of either husband or wife by means of the 
 confidence which the marriage relation inspires, is sacred, and pot to be 
 divulged in testimony, after the death of one by the survivor. Walker 
 V. Sanborn, xlvi. 470. 
 
WRIT. 
 
 559 
 
 V. EXPERT. 
 
 32. One who has been treasurer and clerk of a railroad compnny and 
 who has been accustomed to examine signatures on transfers of stock and 
 bank-bills in order to determine their genuineness, may be admitted to 
 testify as an expert. Withee v. Howe, xlv. 571. 
 
 WRIT. 
 
 I. INDORSEMENT. 
 II. SERVICE. 
 
 I. INDORSEMENT. 
 
 1. Pending an action, the court ordered that the plaintiff furnish an 
 indorser of the writ before, or become nonsuit at, the next term, and the 
 name of the plaintiff's attorney was jDut thereon as indorser, by a third 
 person, who erroneously supposed he was authorized to do so. The at- 
 torney prosecuted the action to trial, without informing the other party 
 of the error. Held, a ratification of the indorsement, that he is estopped 
 to deny its validity, and that he is liable for the costs recovered against 
 the plaintiff. Booker v. Stinchfield, xlvii. 340. 
 
 2. The surname of the attorney written on the back of the writ, is an 
 indorsement of it, under li. S. of 1857, c. 81, § 9. Sawtelle \.Wardwell, 
 Lvi. 146. 
 
 See Akbitration, 1, 2. 
 
 n. SERVICE. 
 
 3. "Where a corporation is summoned as trustee, service of the writ 
 by leaving a copy at the place of last and usual abode of the treasurer, 
 or other proper officer, is sufficient. Harris v. Somerset tfe Ken. R. R. 
 Co., xLTii. 298. 
 
 4. Complaint for flowage under R. S. of 1857, c. 72, § 4, is a personal 
 action ; and where the damages demanded do not exceed one hundred 
 dollars, it may be served by a constable. Hall v. Decker, XLvm. 255. 
 
 6. By R. S. of 1857, c. 140, § 14, the warden or his deputy of the State 
 prison, " shall serve, execute, and return all processes within the pre- 
 cincts of the State prison. Six v. Sumner, l. 290. 
 
 6. The " precincts " embrace not only the prison building, but the 
 grounds connected therewith. Hix v-. Sumner, l. 290. 
 
 7. The service of the wiit within the precincts, by the deputy warden, 
 will be valid upon any person whether an inmate of the prison or other- 
 wise, although brought in the name of the warden. Hix v. Sumner, l. 
 290. 
 
 8. A sherifi; as such, cannot legally serve an execution on his deputy, 
 even though directed to him, and although he had served the writ and 
 
560 
 
 WRIT. 
 
 made attachment of personal property, before the deputy was appointed. 
 Dane v. Gfilmore, li. 544. 
 
 9. The want of service on an alleged trustee, residing in the county 
 in which the writ is made returnable, cannot be cured under R. S. of 
 1857, c. 81, § 25. Mansur v. Coffin, lit. 314. 
 
 10. When a bill inserted in a writ of attachment, praying the court to 
 enjoin the respondent from further prosecuting in this court as a court of 
 law a writ of entry in favor of the respondent against the complainant, 
 and the respondent's property situated in this State has been attached 
 thereon, service of the bill made upon the person who appears and pros- 
 ecutes the respondent's real action is sufficient, although the respondent 
 has not resided nor personally been within this State, since the com- 
 mencement of the bill. Marco v. JLow, lv. 549. 
 
 See Amen^dment, 20. ,