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 Cornell University Law Library 
 
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 PURCHASED FOR 
 
 The School of Law of Cornell University 
 
 And Presented February 14, 1893 
 
 IN HEnORY OF 
 
 JUDGE DOUGLASS BOARDMAN j 
 
 FIRaT DEAN OF THE SCHOOL 
 
 By his Wife and Daugiiter 
 
 A. M. BOARDMAN and ELLEN D. WILLIAMS 
 
CORNELL UNIVERSITY LIBRARY 
 
 I 3 1924 103 377 549 
 
The original of this 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/cu31924103377549 
 
DIGEST 
 
 THE DECISIONS 
 
 op THE 
 
 SUPEEIE JUDICIAL COURT,, 
 
 STATE OF MAINE, 
 
 CONTAINED IN 
 
 YOtUMES TWENTY-SEVEN TO FOETY-THREE, (BOTH INCLUSIVE,) 
 
 MAINE REPORTS. 
 
 By "WM. WIRT VIRGIN. 
 
 HALLOWELL: 
 
 MASTEKS, SMITH AND COMPANY. 
 
 1859. 
 
70'/a5^ 
 
 Entered according to Act of Congress, in the year 1859, by 
 
 Mastees, Smith & Co. and Wm. 'WraT Vibgin, 
 
 In the Clerk's Office of the District Court of the District of Maine. 
 
PUEFACE. 
 
 During the last ten years, nearly as many decisions, of the Supreme 
 Judicial Court of this State, have been reported as were contained in 
 the first twenty-six volumes of the "Maine Reports," which covered 
 the space of twenty-nine years, and which are embraced in the very 
 excellent Digest of Mr. Eastman. 
 
 The members of the profession, having fully appreciated and real- 
 ized the benefits of "Eastman's Digest,%long since felt the need of, 
 and have been anxiously anticipating the announcement of a supple- 
 ment thereto. \ ■ 
 
 The necessity, which the publishers of the Reports felt themselves 
 under, of meeting this urgent call for a supplemental Digest, and the 
 partiality of intimate personal friends in the profession, have resulted 
 in the revision and publication of this volume, which was originally 
 intended merely for private use and convenience. 
 
 " The plan and arrangement of the work, and the divisions and 
 sub-divisions of subjects," are the same as those of "Eastman's 
 Digest," with a slight variation in a few instances, where the subject 
 seemed to demand it, as also in the mode of the numbering of the 
 sections. 
 
 The abstracts of a few cases, accidentally omitted in their regular 
 order in the text, may be found in an Appendix, commencing on 
 page 599. A few verbal errors, and a few errata in the references, 
 have been discovered, and the latter noted. 
 
 That the present volume will compare favorably with similar works 
 prepared by lawyers of larger experience, nice discrimination and 
 much learning, is not presumed ; but that a generous and learned pro- 
 fession may find it " better than none," is hopefully anticipated. 
 
 Norway, June, 1859. W. W. V. 
 
JUSTICES OF THE SUPREME JUDICIAL COURT. 
 
 CHIEF JUSTICES. 
 
 PRENTISS MELLEN, LL. D., Portland. 
 
 Appointed July 1, 1820 ; term of office expired ty limitation, at 70 years of 
 
 age, October 22, 1834. 
 NATHAN WESTON, Jr., LL. D., Augusta. 
 
 Appointed October 22, 1834 ; term of office expired October 21, 1841. 
 EZEKIEL WHITMAN, LL. D., Portland. 
 
 Appointed December 10, 1841; resigned October 23, 1848. 
 ETHEE SHEPLEY, LL. D., Portland. 
 
 Appointed October 23, 1848 ; term of office expired October 22, 1855. 
 JOHN SEAELE TENNEY, LL. D., Norridgewock. 
 
 Appointed October, 1856. 
 
 ASSOCIATE JUSTICES. 
 
 WILLIAM PITT PEEBLE, LL. D., Portland. 
 
 Appointed July 1, 1820 ; resigned June 18, 1829. 
 NATHAN WESTON, Jr., LL. D., Augusta. 
 
 Appointed July 1, 1820 ; appointed Chief Justice, October 22, 1834. 
 ALBION KEITH PAEEIS, Portland. 
 
 Appointed June 25, 1829 ; resigned August 20, 1836. 
 NICHOLAS EMEEY, Portland. 
 
 Appointed October 22, 1834 ; term of office expired October 21, 1841. 
 ETHEE SHEPLEY, Saeo. 
 
 Appointed September 23, 1836 ; appointed Cbief Justice, October 23, 1848. 
 JOHN SEAELE TENNEY, Norridgewock. 
 
 Appointed October 23, 1841 ; appointed Chief Justice, October, 1855. 
 SAMUEL WELLS, Portland. 
 
 Appointed September 28, 1847 ; resigned March 31, 1854. 
 JOSEPH HOWAED, Portland. 
 
 Appointed October 23, 1848 ; term of office expired October 22, 1855. 
 RICHARD D. EICE, Augusta. 
 
 Appointed May 11, 1852. 
 JOHN APPLETON, Bangor. 
 
 Appointed May 11, 1852. 
 JOSHUA W. HATHAWAY, Bangor. 
 
 Appointed May 11, 1852. 
 
VI JUSTICES OF THE SUPEEME JUDICIAL COUKT. 
 
 JONAS CUTTING, Bangor. 
 
 Appointed April 20, 1854. \ 
 
 SETH MAY, Winthrop. 
 
 Appointed May 8, 1855. 
 
 "WOODBURY DAVIS, Portland. 
 
 Appointed October 10, 1855; remoyed April, 1856; and re-appointed Feb- 
 ruary 25, 1857. 
 
 DANIEL GOODENOW, Alfred. 
 
 Appointed October 10, 1855. 
 
REPORTERS OF DECISIONS. 
 
 SIMON GREENLEAP, Portland. 
 
 Appointed September 2, 1820 ; tliird term of office expired June 24, 1832. 
 JOHN FAIRFIELD, Saco. 
 
 Appointed June 27, 1832 ; resigned September 30, 1835. 
 GEORGE W. PIERCE, Portland. 
 
 Appointed October 8, 1835 ; died l^ovember 15, 1835. 
 JOHN SHEPLEY, Saco. 
 
 Appointed February 12, 1836 ; removed March 5, 18il. 
 JOHN APPLETON, Bangor. 
 
 Appointed March 6, 1841 j removed January 22, 1842. 
 JOHN SHEPLEY, Saco. 
 
 Re-appointed January 22, 1842 ; second term of office expired Jan. 22, 1850. 
 ASA REDINGTON, Augusta. 
 
 Appointed January 16, 1850 ; term of office expired January 16, 1854. 
 SOLYMAN HEATH, Watcrville. 
 
 Appointed February 28, 1854; removed February 7, 1856. 
 JOHN MILTON ADAMS, Portland. 
 
 Appointed February 7, 1856 ; removed January 29, 1857. 
 TIMOTHY LTJDDEN, Turner. 
 
 Appointed January 29, 1857. 
 
EBBATA. 
 Page 23, sect. 3, add Mansfield v. Rounds, xxxii. 160. 
 " 36, sect. 18, line 2, for assignee, read assignor. 
 " 242, sect. 302, line 3, for Baker read Blafce. 
 " 242, sect. 303, line 1, for Baker read Blake. 
 " i!6, next to last line, for xxxii. read xxxill. 
 " 301, sect. 40, line 2, for xxxiv. read xxxii. 
 " 307, sect. 62, line 2, for xxix. read xxxix. 
 " 337, sect. 21, line 2, for Keen, read Keazer. 
 " 343, sects. 5 and 15, last line, insert Guptill v. Damon, 
 
 XLii. 271. 
 " 456, sect. 64, lines 2 and 3, for P. ^ S. P. JR. R. Co., 
 read Portl. Steam Packet Co. 
 See Appendix. 
 
TABLE OF CASES, 
 
 [names op plaintiffs akeanged alphabetically,] 
 
 WITH EEFERENCES TO THE VOLUME AND PAGE OF THE REPORTS, 
 AND THE TITLES AND PAGES OF THE DIGEST. 
 
 A. 
 
 xxxviii. 260, 
 
 xxxvii. 203, 
 
 XXX. 414, 
 
 xxxi. 77, 
 
 xxxiii. 204, 
 
 XXX. 40, 
 
 xxxviii. 173, 
 
 xxxii. 339, 
 
 xxxiii. 225, 
 
 xxix. 292, 
 
 XXXV. 324, 
 xxxiii. 228, 
 xxvii. 252, 
 
 xxxii. 113, 
 
 xl. 369, 
 
 xxxvi. 436, 
 
 xxxiii. 420, 
 
 XXXI. 
 
 xxxvi. 
 
 xxvii. 
 
 xxxi. 
 
 xxviii. 
 
 xU. 
 
 xlii. 
 
 xxxiii. 
 
 xxxi. 
 
 xlii. 
 
 xxxiv. 
 
 xxxiii. 
 
 xliii. 
 
 XXXV. 
 
 xxxii. 
 xxxvii, 
 
 xxxii. 
 
 xxxix. 
 
 xli. 
 
 xxviii. 
 
 xxvii. 
 
 589, 
 170, 
 531, 
 338. 
 308, 
 397, 
 197, 
 479, 
 o80, 
 
 346, 
 161, 
 178, 
 272, 
 475, 
 394, 
 256, 
 
 388, 
 
 41, 
 
 233, 
 
 434, 
 
 563, 
 
 Abbott V. Gilchrist, 
 Abbott V. Goodwin, 
 Abbott y. Hampden 
 
 M. F. Ins. Co., 
 Abbott V. Knowlton, 
 Abbott V. Pike, 
 Abbott V. Sturtevant, 
 
 Achom V. 
 Adams v. 
 Adams v. 
 Adams v. 
 ham M. 
 Adams v. 
 Adams v, 
 Aiken v. 
 
 Matthews, 
 Hardy, 
 Hodsdon, 
 Rocking- 
 F. Ins. Co. 
 Smith, • 
 Ware, 
 £ilburne, 
 
 Alden v. Noonen, 
 Allard y. Belfast, 
 Allen V. Bicknell, 
 Allen V. Doyle, 
 
 Allen 
 Allen 
 Allen 
 Allen 
 Alley 
 Ames 
 Ames 
 Ames 
 
 Haskell, 
 
 Little, 
 
 Parker, 
 
 Polereczky, 
 
 Blen, 
 
 Dyer, 
 
 Palmer, 
 
 Swett, 
 
 Ammidown v. Wood- 
 man, 
 Anderson v. Bath, 
 Anderson v. Farnham, 
 Andrews v. Andrews, 
 
 V. 
 
 Andrews 
 Andrews 
 Andrews 
 Andrews 
 
 F. Ins. 
 Andrews 
 Andover 
 And. R. R. Co 
 
 Richards, 
 And. & Ken. R. R. Co, 
 
 V. Stevens, 
 Anonymous, 
 
 B 
 
 Marshall, 
 V. Portland, 
 V. Senter, 
 V. XT. Mut. 
 Co., 
 
 V. White, 
 V. Reed, 
 
 V. 
 
 Frauds, Statute of, 289. 
 Contract, 111. Damages, 155. 
 
 Insurance, 316. 318. 
 
 District Court, 185. Exceptions, 256. 
 
 Deed, 166. 171. 
 
 Attachment, 46. Deed, 164, 176. Execution, 
 
 266. Seizin, &c., 519. 
 Exceptions, 254. 
 Bills, &c., 65. 
 Abatement, 4. 
 
 Insurance, 318. 
 
 Bills, &c., 69, 74, 76, 80. 
 
 Executors, &c., 273. Set-off, 522. 
 
 Fraud, &c., 284. Mortgage, 392. Witness, 591, 
 
 593. 
 Deed, 171. 
 Contract, 113, 114. 
 Mortgage, 395. 
 Attachment, 47. Damages, 150. Deposition, 180. 
 
 Evidence, 230. Officer, 421. 
 Costs, 134, 136. 
 Covenant, 145, 146. 
 Deed, 175. Mortgage, 393, 403. 
 Donatio, &c., 187. 
 Law and Fact, 343. 
 Liens, 354. 
 
 Liens, 355. Trover, 559. 
 Liens, 352. 
 
 Bills, &c., 65, 74. 
 
 Way, 581. 
 
 Arbitration, 25, 28. Evidence, 227. 
 
 Contract, 107, 108. 
 
 Vide Appendix. 
 
 Contract, 110, 111. 
 
 Condition, 98. Tax, 544. 
 
 By-laws, 87. Corporation, 123, 124. Insurance, 
 
 317. 
 PeddUng, &c., 448. 
 Exceptions, 255. Witness, 692. 
 
 Liquor, 371. Officer, 424. 
 
 Assumpsit, S8. Corporation, 129. 
 Divorce, 186. 
 
TABLE OP CASES. 
 
 xxix. 23, Argyle v. Divinel, 
 
 xxxix. 345, 
 
 XXXV. 135, 
 
 XXX. 364, 
 
 xxviii. 112, 
 
 xlii. 132, 
 
 xl. 409, 
 
 xxxvi. 255, 
 
 XXXV. 491, 
 
 xxxvi. 235, 
 xxxix. 522, 
 
 xxxix. 203, 
 XXX. 458, 
 xxx. 347, 
 
 xxxii. 163, 
 
 Athens v. Ware, 
 Atkinson v. Crooker, 
 Atkinson v. Snow, 
 At. & St. L. R. R. Co. 
 V. Cumb. Co. Com,, 
 Atkins V. Vickery, 
 Atwood V. Williams, 
 Augusta Bank v. Au- 
 gusta, 
 Augusta Bank v. \ 
 Hamblet, ) 
 
 Augusta V. Kingfield; 
 Augusta M. F. Ins. 
 
 Co. V. French, 
 Austin V. Smith, 
 Avery v. Straw, 
 Ayer v. Fowler, 
 Ayer v. Sawyer, 
 
 Attachment, 44. Execution, 259. Partition, 427, 
 
 429. Public Lots, 482. 
 Bond, 83. Poor Debtor, 461, 462. 
 Arbitration, 31. 
 Practice, 472. Witness, 592. 
 
 County Commissioners, 137. 
 Vide Stedman v. Vickery. 
 Liens, 352, 354. 
 
 Bank, 56. Evidence, 227. Tax, 542. 
 
 Agency, 16. Contract, 108, 113, 119. Corpora- 
 
 ation, 123. Estoppel, 214. Seal, &c., 518. 
 Pauper, 436, 437. 
 
 Insurance, 323. 
 
 Actions, &c., 12. Composition, &c., 96, 97. 
 
 Offer to be defaulted, 416. 
 
 Evidence, 219, 230. Poor Debtor, 460, 462. 
 
 Evidence, 249. Survey, &c., 541. 
 
 B. 
 
 xxxii. 592, 
 xxxvi. 555, 
 
 xxxiv. 69, 
 
 xxxiv. 230, 
 xH. 639, 
 
 xxxiii. 171, 
 xxxiv. 77, 
 XXXV. 106, 
 xxxvi. 50, 
 
 xxxii, 335, 
 
 XXXV. 485, 
 
 xxvii. 153, 
 
 xli. 15, 
 
 xxxiii. 213, 
 
 xxx. 121, 
 
 xxxviii. 353, 
 
 xxxvi. 518, 
 
 x.xxvi. 494, 
 
 xxxvii. 369, 
 
 xxx. 94, 
 
 xxxiv. 355, 
 
 xxxiii. 196, 
 
 xxxviii. 553, 
 
 xxxiii. 316, 
 
 xxix. 123, 
 
 xxvii. 361, 
 
 xxx. 398, 
 
 xxxiii. 352, 
 
 xxx. 270, 
 
 XXXV. 73, 
 
 xU. 484, 
 
 Babcock v. Fowles, Amendment, 20. 
 Batchelder v. SIcKen-' 
 
 ney. Actions, &c., 11. 
 
 Bachelderv.Merriraan, Deposition, 180. Judgment, 331, 332. Trustee 
 
 Process, 566. 
 Bachelder v. Sanborn, Poor Debtor, 460, 461, 465. 
 Bachelder v. Thomp- 
 
 Execution, 262, 265, 266. 
 
 Attachment, 44. 
 
 Marriage, 380. 
 
 Poor Debtor, 462, 463. 
 
 Amendment, 22. Equity, 201. Mortgage, 399, 
 
 401. 
 Damages, 157. Poor Debtor, 458, 465. 
 Agency, 16. Assignment, 38. 
 Poor Debtor, 457, 460. 
 
 County, 137. Jurisdiction, 335. Mandamus, 379, 
 380. Practice, 471. Sheriff, 52±. Supreme 
 Judicial Court, 536, 537. 
 Evidence, 217. Practice, 468. 
 Bankruptcy, 60. Trusts, 568, 669. 
 Actions, &c., 12. Execution, 265. 
 Certiorari, 89. Equity, 198. Streets, 535, 636. 
 Poor Debtor, 464. 
 
 son. 
 
 Bacon v. Denning, 
 Bailey v. Fiske, 
 Bailey v. Mclutire, 
 Bailey v. Myrick, 
 
 Baker v. Carleton, 
 Baker v. Freeman, 
 Baker v. Holmes, 
 Baker v. Johnson, 
 
 Baker v. Pike, 
 Baker v. Vining, 
 Balch V. Pattee, 
 Baldwin v. Bangor, 
 Baldwin v. Doe, 
 Baldwin v. Trs Min. 
 
 Fund of Baldwin, 
 Ballard v. Butler, 
 Ballard v. Child, 
 Ballard v. Eussell, 
 Banchor v. Cilley, 
 Bancher v. Fisk, 
 Bangor Boom Corp. v. 
 
 Whiting, Corporation, 122, 129. 
 
 Bangor v. Brunswick, Evidence, 247. New Trial, 412. Pauper, 441. 
 Bangor v. Brunswick, Evidence, 231. Exceptions, 256. Pauper, 442. 
 
 Practice, 472. 
 Bangor v. Brunswick, Pauper, 442. 
 Bangor v. Co. Com. of 
 
 Penobscot, Certiorari, 88. County Commissioners, 138. 
 
 Bangor v. Goding, Liens, 356. 
 Bangor v. Hampden, Pauper, 443. 
 
 Tax, 543. 
 
 Easement, 194. 
 
 Covenant, 146. 
 
 Husband and Wife, 300. Married Woman, 381. 
 
 Partnership, 430, 431. Sale, 609. 
 
 Foreign Laws, 284. 
 
TABLE OP CASES. 
 
 XI 
 
 xxxiii. 309, 
 
 xxxii. 60, 
 xxxiv. 324, 
 
 Bangor House t. 
 
 Brown, 
 Bangor v. Readfield, 
 Bangor v. Warren, 
 
 xxix. 288, Banks, appellant, 
 
 XXX. 
 
 xxxvi. 
 xxxiv. 
 
 xxvii. 
 
 xxxi. 
 
 xxxii. 
 
 xxix. 
 
 xxxi. 
 
 xxxi. 
 xxxvi. 
 XXX vii. 
 xxxiii. 
 
 xxix. 
 
 xxxii. 553, 
 xxxii. 31, 
 xlii. 105, 
 XXXV. 274, 
 xxxix, 19, 
 xli. 208, 
 
 XXIX. 
 
 xlii. 
 xxxix. 
 
 XXX. 
 
 xxxiii. 
 
 xxxiv. 
 
 xliii. 
 
 xxxvii. 
 
 xxxi. 
 
 xxviii. 
 
 xli. 
 
 xlii. 
 
 xxxii, 
 
 xxvii. 
 
 xlii. 
 
 xxxiii. 
 
 xxxiii. 
 
 xlii. 
 
 xxxiii, 297, 
 xxxiv. 273, 
 xxxvii. 62, 
 xxxvii. '320, 
 
 xl. 392, 
 xl. 398, 
 
 XXXIV. 
 
 xxxviii. 
 
 xxxii. 
 
 xxxix. 
 
 xxxvii. 
 
 xli. 
 
 xxxiv. 
 
 XXXV. 
 
 xxxiii. 
 
 75, Bannister v. Boberts, 
 
 155, Bard v. Wood, 
 
 433, Barker v. Blake, 
 392, Barker v. Fogg, 
 354, Barker v. Hesseltine, 
 
 39, Barnard v. Spofford, 
 
 442, Barnes v. McCrate, 
 
 514, Barnes v. Taylor, 
 
 329, Barnes v. Taylor, 
 
 321, Barnes v. Trundy, 
 
 198, Barnett v. State, 
 
 124, Bartlett v. Blake, 
 
 618, Bartlett v. Mayo, 
 
 9, Bartlett v. Pearson, 
 
 Bassett v. Carleton, 
 Bates V. Churchill, 
 Bates T. Enright, 
 Bates V. Tallman, 
 Battles V. Batchelder, 
 Battles V.York Co. M. 
 F. Ins. Co , 
 110, Baxter v. Child, 
 
 434, Baxter v. Duren, 
 362, Beal v. Cunningham, 
 
 469, Beals v. Furbish, 
 224, Bean v. Flint, 
 480, Bean v. Hinman, 
 575, Bearee v. Fossett, 
 664, Bearee v. Washburn, 
 543, Beeman v. Lawton, 
 305, Benner v. Fowles, 
 212, Bennett v. Treat, 
 226, Bennett v. Treat, 
 414, Benson v. Smith, 
 
 39, Benson v. Soule, 
 
 470, Benson v. Thompson, 
 445, Berry v. Cutts, 
 
 493, Berry v. Hall, 
 
 494, Berry v. Staples, 
 478, Bethel v. Oxford Co. 
 
 Comm'rs, 
 Bicknell v. Hill, 
 Bicknell v. Trickey, 
 Bigelow V. Hillmau, 
 Bigelow V. York & 
 
 Cumb. E,. R. Co., 
 Bird V. Bird, 
 Bird V. Bird, 
 
 63, Bird v. Smith, 
 
 287, Black v. McGilvery, 
 
 616, Blaisdell v. Lewis, 
 
 113, Blaisdell v. Portland, 
 
 239, Blaisdell v. Roberts, 
 
 78, Blake v. Baker, 
 
 237, Blake v. Junkins, 
 
 433, Blake v. Junkins, 
 
 360, Blake v. Russ, 
 
 Deed, 170. Way, 584. 
 
 Emancipation, 195. Pauper, 439, 440. 
 
 Bills, &c., 67. Deed, 166. Execution, 261. Fraud, 
 &c., 286, Right of Entry, &c., 505. 
 
 Appeal, 23. Certiorari, 88. County Commission- 
 ers, 138, Exceptions, 262. 
 
 Interest, 324. 
 
 Damages, 157. Poor Debtor, 458, 465. 
 
 Tax, 545. 
 
 Record, 494. 
 
 Tax, 644. 
 
 Arbitration, 26, 29. 
 
 Libel, &€., 347. 
 
 Revenue Laws, 502. 
 
 Shipping, 525. 
 
 Libel, &c., 347, 318, 349, 
 
 Error, 211. Liquor, 369. 
 
 Fraud, &c., 288. Sale, 509, 510. 
 
 Bills, &c., 66, 78. Evidence, 231, 249. 
 
 Assignment, 34, 35, 36. Exceptions, 252. Set- 
 oif, 524. 
 
 Evidence, 249. Statutes, 632, 633, 
 
 Contract, 106, 108. 
 
 Husband and Wife, 298, 
 
 Poor Debtor, 463, 
 
 Evidence, 243. 
 
 Insurance, 317, 318, 320. 
 
 Mortgage, 401. 
 
 BUls, &c., 72. Evidence, 231. Witness, 593. 
 
 New Trial, 412. Verdict, 673. 
 
 Bastardy, 62, 63. New Trial, 410. 
 
 Bills, &c., 66. 
 
 Mills, 388. 
 
 Fisheries, 279, 280. Town, 651. 
 
 Partnership, 431, 
 
 Exceptions, 264, Mortgage, 407, 
 
 Husband and Wife, 300. 
 
 Evidence, 219, 
 
 Oath, 416. Town, 551, 
 
 Officer, 420, Sheriff, 524, Title, &c., 548. 
 
 Mills, 387. Prescription, 476. 
 
 Shipping, 528. 
 
 Assignment, 37. 
 
 Witness, 691. 
 
 Constable, 99, 
 
 Way, 680, 
 
 Attachment, 48. Evidence, 239. 
 Attachment, 43. Costs, 133. Lienii, 355, 356. 
 Estoppel, 216. Way, 679, 580. 
 
 Trustee Process, 661, 563. 
 
 Evidence, 218, 219. 
 
 Deed, 166, 173, 177. Joint Tenants, &c., 328. 
 
 Practice, 472. 
 Evidence, 230. Judgment, 332. 
 Liquor, 366. 
 Contract, 107. 
 Way, 583. 
 
 Pleading, 457. Trespass, 556. 
 Attachment, 42. 
 Bastardy, 62, 63^ 
 Bastardy, 63. 
 Practice, 468. 
 
xu 
 
 TABLE OP CASES. 
 
 xxxi. 494, Blanchard v. Day, 
 
 xxxii. So?! 
 xxxiv. 376; 
 xxviii. 51 
 xxxiv. 133, 
 
 xxxy. 5S6. 
 
 xl. 310, 
 xxxii. 260 
 
 xlii. 93, 
 
 xxxiv. 428, 
 
 xl. 336; 
 
 xxxix. 406; 
 
 XXX. 361 
 
 xliii. 387; 
 
 xxxiv. SIS 
 
 xxix. 302 
 
 xxxix. 504, 
 
 xli. 542, 
 
 XXX. 
 
 xxxviii. 
 
 xxxiii. 
 
 xliii. 
 
 xxxvii. 
 
 xxxviii. 
 
 xli. 
 xU. 
 
 xxxiii. 
 xlii, 
 
 xlii. 
 
 xxxi. 
 
 xxviii. 
 
 xxxviii. 
 
 xxvii. 
 
 xlii. 
 XXX vi. 
 xxviii. 
 xxxviii. 
 xxxiii. 
 xxxiv. 
 xxix. 
 
 XXXV. 
 
 xxxi. 
 
 xxxix. 
 xxxiii. 
 
 xxxii. 
 
 xliii. 
 xxxi. 
 
 xliii. 
 
 460, 
 577, 
 216, 
 291 
 199, 
 
 346, 
 682, 
 155 
 
 176, 
 259, 
 
 602, 
 
 205, 
 
 45, 
 
 695 
 
 489; 
 
 641 
 428, 
 81 
 361 
 174 
 158 
 472, 
 132, 
 293 
 300 
 
 103; 
 
 447, 
 590, 
 361 
 443, 
 
 XXVIU. , 
 
 3txxi. 9; 
 
 xxxi. 518, 
 
 xxxviii. 210 
 
 xxxix. 566 
 
 xxxii. 167, 
 
 Blanchard v. Dow, 
 Blanchard v. Hoxie, 
 Blanchard v. Waite, 
 Blethen v. Dwinel, 
 Blethen v. Dwinal, 
 
 Blethen v. Towle, 
 Bluehill Academy v. 
 
 EUis, 
 Bohanan v. Pope, 
 Bolster v. Cushmaii, 
 Bonzey v. Redman, 
 Boobier y. Boobier, 
 
 Boothby v. Bangor 
 
 Com. Bank, 
 Boothbay v. Wylie, 
 Boothby v. Stanley, 
 Bourne v. Littlefield, 
 Bowker v- Porter, 
 Bowley v. Bowley, 
 
 Boyd V. Page, 
 Boyiiton v. Brastow, 
 Boynton v. Frye, 
 Brackett v. Weeks, 
 Bradbury v. Andrews, 
 
 Bradbury y. Bridges, 
 Bradbury v. Johnson, 
 Bradbury y. Saco W. 
 
 P. Co., 
 Bradford v. Fuller, 
 Bragdou v. Appleton 
 
 F. Ins. Co., 
 Bragg y. Paulk, 
 Bramhall y. Beckett, 
 Bramhall v. Seavey, 
 Bray v. Kelley, 
 Brewer v. E. Machias, 
 
 Brewer v. Eddington, 
 Brewer y. Linnaeus, 
 Brewer y. Thomes, 
 Bridges v. Stickney, 
 Bridghara y. Prince, 
 Btiggs V. Davis, 
 Briggs V. Lewiston, 
 Brighton v. Walker, 
 Brock v. Berry, 
 Brock V. Chase, 
 Brookings v- Cun- 
 ningham, 
 Brooks V. Briggs, 
 Brown v. Allen, 
 Brown v. Atwell, 
 Brown y. Black, 
 
 Brown v. Bumham, 
 Brown v. Chadbourne, 
 Brown v. Clay, 
 Brown v. Clifford: 
 Brown y. Clough, 
 Brown y. Dodge, 
 
 Constable, 100. Officer, 417, 418, 419. Writs, 
 &c., 598. 
 
 Collector, 93. Presumption, 477. Trespass, 656. 
 
 Pleading, 461, 462, 465. 
 
 Insurance, 316, 317. 
 
 Evidence, 232. 
 
 Evidence, 232. Mortgage, 402, 404. Kegister, 
 &c., 496. 
 
 Fixtures, 281. 
 
 Contract, 112. Insolvent Estates, 315. Limita- 
 tions, &c., 362. 
 
 Actions, &c., 13. 
 
 Dower, 188. Evidence, 232. 
 
 Abatement, 2. 
 
 Emancipation, 195. Joint Tenants, &c., 329. Mi- 
 nor, 391. Practice, 473. Trover, 558. 
 
 Equity, 208. Execution, 266. 
 
 Parish, 426. 
 
 Evidence, 232, 250. 
 
 Costs, 134. Evidence, 248. Mortgage, 400. 
 
 Poor Debtor, 461. 
 
 Attachment, 45, 49. Bankruptcy, 58, 62. Bills, 
 &c., 76. 
 
 Execution, 260. 
 
 Amendment, 22. Equity, 204. 
 
 Arbitration, 28. Offer to be defaulted, 416. 
 
 Witness, 596. 
 
 Exceptions, 267. Husband & Wife, 300. Mar- 
 ried Woman, 382. Trustee Process, 563. 
 
 Evidence, 251. 
 
 Shipping, 625, 526. 
 
 New Trial, 412. 
 Costs, 134. 
 
 Exceptions, 256. Insurance, 317. Nonsuit, 414, 
 
 Trusts, 569, 670. 
 
 Bills, Sc, 76. 
 
 Arrest, 32. Poor Debtor, 462. 
 
 Damages, 157. Poor Debtor, 464, 465. 
 
 Amendment, 20. Evidence, 220, Exceptions, 266. 
 
 Pauper, 436, 441, 444. 
 Pauper, 438, 439. 
 Pauper, 439. 
 
 Evidence, 230, 231. Limitations, &c., 363. 
 Contract, 117. Damages, 154. Law and Fact, 343. 
 Arbitration, 28. Real Action, 488. 
 Waiver, 575. Writs, &c., 598. 
 Tax, 645. 
 
 Deposition, 181. Evidence, 220. 
 Landlord, &c., 340. Trespass, 654, 
 Way, 679, 
 
 Actions, &c., 11, 
 
 Mortgage, 406. 
 
 Deed, 168. Estoppel, 215. 
 
 Attachment, 48. Officer, 421, 
 
 Aquatic Rights, 25. Nuisance, 415, Riparian 
 
 Rights, 606. Seizin, &c., 620, 
 Deposition, 179, 
 
 Aquatic Rights, 24, Constitutional Law, 103. 
 Arbitration, 27. " 
 Execution, 262, 
 Bond, 83, 
 Contract, 116, 
 
TABLE OP CASES. 
 
 XIU 
 
 xxxvii. 318, 
 xxxi. 65, 
 XXXV. 39, 
 
 xxxvii. 423, 
 
 xlii. 44, 
 xxxvi. 407, _ 
 xxxvi. 376,' 
 xxviii. 497, 
 
 xii. 174, 
 xxxvi. 414, 
 xxviii. 232, 
 xxxi. 403, 
 xxxix. 390, 
 xxxiv. 202, 
 
 xxxvii. 446, 
 
 xxxix. 193, 
 xxxii. 620, 
 xxxvi. 662, 
 
 Brown T. Edes, Limitations, &c., 361, 363. 
 
 Brown v. Hodgdon, Widow, &c., 687. 
 Brown v. Leach, Mortgage, 403, 404. 
 
 Brown v. Lunt, Deed, 163, l-'S. Evidence, 228. Execution, 262. 
 
 Interest; 324. Married Woman, 382. Trusts, 569. 
 Brown v. Moran, Actions, &c., 14. New Trial, 412. Practice, 474. 
 
 Brown v.Ncal, Tender, 547. ,,,,,, 
 
 Brown V. Orland, Law and Fact, 343. Pauper, 441, 444. 
 Brown v. Staples, Covenant, 144, 145, 147. Estoppel, 212, 213. In- 
 solvent Estate, 314. 
 Brown v, Strickland, Executors, Sec, 271. Real Action, 488. 
 Brown v. Weymouth, Georges Canal Co., 290. 
 Brown V. WilUams, Insurance, 317. ,„„ t, ^. „^n 
 
 Attachment, 46, 49. Dower, 189. Execution, 260. 
 
 Vide Appendix. 
 
 9, 
 
 xl 
 
 xxxvi. 36, 
 
 xxxix. 458, 
 
 XXX. 295, 
 
 xxxvi. 491, 
 xxxi. 558, 
 xxxi. 34, 
 
 Brown v. Williams, 
 Bruce v. Mitchell, 
 Brunswick. Bank v. 
 
 Sewall, 
 Brunswick v. Cumb. 
 
 Co. Comm'rs, 
 Bryant v. Biddeford, 
 Bryant v. Couillard, 
 Bryant v. Crosby, 
 
 Bryant v. Crosby, 
 Bryant v. Glidden, 
 Bryant v. Glidden, 
 Bryant v. Ware, 
 
 Buck V. Babcock, 
 Buck V. Hersey, 
 Buck V. Spofford, 
 
 XXXV. 526, Buck v. Spofford, 
 
 xl. 328, 
 
 XXXV. 41, 
 
 xliii. 374, 
 
 xxxix. 44, 
 
 XXX. 494, 
 xxxviii. 171, 
 
 xxvii. 338, 
 xxxi, 683, 
 
 Buck T. Spofford, 
 
 Buck V. Swarey, 
 
 Buckfield Br. R. R. 
 Co. V. Benson, 
 
 Buckfield Br. B,. R. 
 Co. V. Irish, 
 
 Bucknam V. Bucknam, Landlord, &c., 339. 
 
 Bucknam v. Thomp- 
 son, 
 
 Trustee Process, 562. 
 
 County Commissioners, 141. 
 
 Law and Fact, 344. Lord's Day, 375. 
 
 Bills, &c., 77. Exceptions, 253. 
 
 Contract, 117. Evidence, 227, 228. Exceptions, 
 262. Sale, 608, 512. Surety, 538. 
 
 Evidence, 245. Practice, 472. Sale, 611, 613. 
 
 Mills, 386, 388, 389. 
 
 Mills, 389. New Trial, 412. 
 
 Confusion of Goods, 08. Logs, &c., 374. Tres- 
 pass, 565. 
 
 Deed, 161, 163, 165. Seizin, &e., 521. 
 
 Libel, &c., 347, 349. 
 
 Actions, &c, 9. Assumpsit, 39. Joint Tenants, 
 &c., 327, 328. Mills, 384, 386. 
 
 Arbitration, 27, 30, 31. Contract, 119. Evi- 
 dence, 227. 
 
 Limitations, &c., 368. 
 
 Equity, 206, 206, 207. Trusts, 568, 669. 
 
 Abatement, 3. Record, 494. 
 Assumpsit, 39. Corporation, 127. 
 
 XXXV. 364, 
 xl. 88, 
 
 XXX. 431, 
 xxxix. 233, 
 xxxvi. 317, 
 
 xxxiv. 322, 
 
 xxxix. 319, 
 
 xxxi. 669, 
 
 xl. 565, 
 
 xxix. 273, 
 xxxvi. 409, 
 XXXV. 227, 
 
 xxvii. 419, 
 
 XXX. 263, 
 
 xxxiii. 392, 
 
 Limitations, &c., 360. 
 Devise, &c., 184. Equity, 196. 
 Betterments, 63. Deed, 164. Deposition, 180. 
 Evidence, 231. Executors, &c., 268. Real 
 Action, 489. 
 Bills, &c., 64, 65. Limitations, &c., 363. 
 Officer, 419. Practice, 470. Trustee Process, 562. 
 
 Witness, 591. 
 Agency, 18. 
 Libel, &c., 349. 
 
 Arrest, 32. By-laws, 87. Damages, 151, 159. 
 Officer, 420, 423. 
 Burleigh v. Lumbert, Vide Appendix. 
 Burnham v. Ellis, Evidence, 2^5, 246, 247. 
 Burnham v. Howard, Abatement, 4. Real Actions, 489. 
 Burnham v. Persons 
 
 Vide Appendix. 
 Equity, 202, 203. 
 
 Contract, 111. Evidence, 227. Poor Debtor, 463. 
 Amendment, 21. Evidence, 234. Exceptions, 
 254. Trustee Process, 664, 567. 
 Butman v. Holbrook, Poor Debtor, 459, 464. 
 Butman v. Hussey, Deed, 164. 
 Butterfield v. Haskins, Devise, &c. 183, 184. Execution, 260. Trusts, 569. 
 
 Bugbee v. Sargent, 
 BuUen v. Arnold, 
 
 Bunker v. Atheam, 
 Bunker v. Gilmore, 
 
 Bunker v. Miles, 
 Burbank v. Horn, 
 Burke v. Bell, 
 
 unknown, 
 Burns v. Hobbs, 
 Burrill v. Saunders, 
 Butman v. Hobbs, 
 
XIT 
 
 TABLE OP CASES. 
 
 xkxii. 448, Buxton v. Hamblen, Contract, 107. Hay, 295, 296. 
 XKXTi. 217, Byram v. Hunter, Bills, &c., 64, 69, 70, 73, 78. 
 
 c. 
 
 XXX. 511, 
 xl. 526, 
 xxxil. 92, 
 xxvii. 97, 
 xxviii. 317, 
 xl. 31, 
 xxxix. 434, 
 xxxix. 465, 
 xxxix. 35, 
 
 xxxiii. 419, 
 xliii. 269, 
 
 xxxiii. 337, 
 
 xxxviii. 427, 
 
 xxix. 51, 
 
 xxviii. 609, 
 xxxii. 190, 
 xxix. 154, 
 XXXV. 483, 
 
 xxviii. 232, 
 
 xxxiii. 258, 
 xxxvi. 89, 
 
 XXX. 354, 
 
 xl. 260, 
 
 xxvii. 138, 
 
 xxxvii. 76, 
 
 xxxviii. 648, 
 
 xxxvi. 388, 
 
 xxvii. 458, 
 
 xxxviii. 564, 
 
 xl. 561, 
 
 xxxvii. 92, 
 
 431, 
 
 xxxvi. 102, 
 
 xxxvii. 59, 
 
 xxxiii. 363, 
 
 xxxviii. 44, 
 
 xxxvii. 351, 
 
 xli. 228, 
 
 XXX. 412, 
 
 xxxix. 162, 
 
 xl. 
 xxxvii, 
 xxxiii. 460, 
 xxxvii. 102, 
 xxxiv. 162, 
 451, 
 
 636, 
 106, 
 
 Calais v. Marshfield, 
 Caldwell v. Hawkins, 
 Calef V. Foster, 
 Call V. Barker, 
 Call V. Barker, 
 Call V. Carroll, 
 Call V. Lothrop, 
 Call V. MitcheU, 
 Came v. Brigham, 
 
 Campbell v. Machias, 
 Carle v. Bang. & Pis. 
 Canal & B,. E. Co., 
 Carle v. Bearce, 
 Carpenter v. Sellers, 
 Carr v. Lord, 
 
 Carter v. Parker, 
 Cartland v. Morrison, 
 Cary v. Esty, 
 Cash V. Freeman, 
 Caswell V. Caswell, 
 
 Cates V. Noble, 
 Chadbourne v. Dun- 
 can, 
 
 Chadboume v. Rack- f 
 US, I 
 
 Chadboume v. Swan, 
 Cbadwick v. Starrett, 
 Chaffin V. Cmnmings, 
 Chamberlain v. Gar- 
 diner, 
 Chamberlain v. Lake, 
 Chamberlain v. Sands, 
 Chandler v. McCard, 
 Chapin v. Cram, 
 Chapman v. At. & St. 
 
 L. R. R. Co , 
 Chapman v. Lothrop, 
 Chapman v. Seccomb, 
 Chapman v. Twitchell, 
 Chase v. Gates, 
 Chase v. Jennings, 
 Chase v. Jewett, 
 Chase v. White, 
 Chase v. Vanghan, 
 
 Cheuery v. Dole, 
 Chesley v. Holmes, 
 Chesley v. Welch, 
 Church V. Cherryfield, 
 Chute V. Pattee, 
 Cilley V. Cilley,. 
 Clancey v. Houdlette, 
 
 xxxix. 448, Clapp v. GHdden, 
 
 Citizenship, 92. Pauper, 437, 440, 442. 
 
 Collector, 93. Evidence, 239. 
 
 Attorney, 50. 
 
 Damages, 157. Poor Debtor, 458, 463, 464. 
 
 Evidence, 248. Poor Debtor, 465. 
 
 Flats, 282. 
 
 Costs, 133. Tender, 547. 
 
 Costs, 133. Justice of the Peace, 336, 338. 
 
 By-laws, 87. Corporation, 123, 124, 127, 131. Ev- 
 idence, 239. Judgment, 331. Officer, 419. Rail- 
 roads, 486. Record, 494. 
 
 Tax, 642. 
 
 Actions, &c., 13. 
 
 Depositary, 178. Evidence, 246. Waiver, 575. 
 Review, 504. 
 
 Assignment, 34. Bankruptcy, 69, 60. Limita- 
 . tions, &c., 363. 
 
 Do-wer, 190, 192. Marriage, 380. 
 Sale, 608. Trover, 668. 
 Bankruptcy, 60. 
 Receipt, 491. 
 Equity, 197, 204. Error^ 210. Insolvent Estates, 
 
 314. Judgment, 331. 
 Arrest, 32. Witness, 593. 
 
 Shipping, 525, 529. 
 
 I Deed, 161, 164. Executors, &c., 268. Husband 
 • and Wife, 300. Infant, 311. Mortgage, 393, 
 I 400. Real Action, 488, 490. 
 
 Seizin, &c., 519, 520, 521. 
 
 Bankruptcy, 68. Husband and Wife, 300. 
 
 Execution, 261, 262. 
 
 Mortgage, 402. 
 
 Abatement, 3. Practice, 467. 
 
 Evidence, 220, 248. Poor Debtor, 458, 459. 
 
 Deed, 169, 172. Evidence, 229. 
 
 Mortgage, 408. 
 
 Railroads, 486. 
 
 Bond, 82. 
 
 Arbitration, 26. Contract, 107, 119. 
 
 Evidence, 247, 250. 
 
 Depositary, 177. Mortgage, 402. 
 
 Jury, 335. 
 
 Evidence, 228. • 
 
 Evidence, 223. 
 
 Contract, 108, 115. Evidence, 249. Partnership, 
 
 435. 
 Partition, 427. 
 Deed, 174. 
 
 Landlord, &c., 339, 340. 
 Way, 682. 
 Surety, 639. 
 
 Evidence, 226, 232. Will, 588. 
 Flats, 281, 282. Grants, 291. Prescription, 476. 
 
 Seizin, &c., 520, 621. 
 Liens, 364. Mortgage, 407. Trover, 658. 
 
TABLE OP CASES. 
 
 XV 
 
 xxxiii. 268, 
 
 xxxviii. 122, 
 
 XXX. 148, 
 
 xxxi. 503, 
 
 Clark V. Mann, 
 Clark V. Metcalf, 
 Clark V. Perry, 
 Clark V. Pishon, 
 
 32, Clark v. Viles, 
 
 .xxxiv. 
 xxxiv. 
 
 XXXV. 
 
 xliii. 
 xxxiii. 
 
 xxxi. 
 
 xxxix. 
 
 xxxiii. 
 
 xl. 
 
 xxxii. 
 
 XXXV. 
 
 xxxvi. 
 
 XXX. 
 
 xxxviii. 
 xxviii. 
 
 187, 
 
 9. 
 
 429, 
 
 290, 
 
 341, 
 
 60, 
 
 413, 
 
 369, 
 
 337, 
 
 465, 
 
 126, 
 
 lOo, 
 
 202, 
 
 25, 
 
 91, 
 
 xxxi. 660, 
 xliii. 432, 
 
 XXX. 310, 
 
 ' xxxvi. 0, 
 
 xxxix. 119, 
 
 xxxii. 512, 
 
 xliii. 401, 
 
 xxxiii. 642, 
 xxxvi. 28, 
 XXX. 392, 
 XXXV. 439, 
 XXXV. 161, 
 
 xxxviii. 190, 
 
 xxxix. 298, 
 
 XXX. 186, 
 
 xxxi. 196, 
 
 XXXV. 391, 
 
 xxxix. 402, 
 xxxiii. 366, 
 xxxix. 443, 
 xxxvi. 340, 
 xxix. 469, 
 
 xlii. 332, 
 
 xxxviii. 204, 
 
 xxxiv. 89, 
 
 xxxiii. 453, 
 xxxii. 192, 
 xxxiii. 376, 
 
 XXX. 488, 
 
 XXX. 446, 
 
 xxviii. 626, 
 
 xxix. 93, 
 xxxiv. 310, 
 
 xxix. 115, 
 xxviii. 650, 
 
 Evidence, 229. 
 
 Evidence, 224. Poor Debtor, 461, 462, 464. 
 
 Covenant, 147. ^, , 
 
 Deposition, 179. Executors, &c., 268, 273. Plead- 
 ing, 466. Practice, 469. Probate Court, 480. 
 
 Bills, &c., 79. Married Woman, 381. Trustee 
 Process, 664. 
 
 Mortgage, 403, 404. 
 
 Eescue, 501. Swine, 541. Writs, &o., 597. 
 
 Impounding, 302. Statutes, 634. 
 
 Judgment, 333. 
 Cleaves v. Stockwell, Contract, 116. Deposition, 179. 
 Clement v. Wyman, Poor Debtor, 459, 460. 
 . „. . . Damages, 157, 168. Poor Debtor, 464, 466. 
 
 Notice, &c., 414. 
 
 Account, 6. Exceptions, 255. 
 
 Arbitration, 31. 
 
 Liens, 363, 356. 
 
 Agency, 18. 
 
 Bills, &c., 76. Evidence, 236. 
 
 Liquor, 366. 
 Codman v. Armstrong, Evidence, 235. Exceptions, 256. Law and Fact, 
 
 343. Payment, 447. Practice, 472. 
 Codman v. Caldwell, Evidence, 241. 
 
 Clay V. Wren, 
 Cleaves v. Jordan, 
 Cleaves v. Jordan, 
 Cleaves v. Lord, 
 
 Clifford V. Kimball, 
 Clifton, petitioners, 
 Closson V. Means, 
 Cobb V. Wood, 
 Coburn v. Kerswell, 
 Coburn v. Paine, 
 Coburn v. Ware, 
 Cochrane v. Clough, 
 
 Coe V. Persons un- 
 known, 
 Colburn v. Averill, 
 Colby V. Dennis, 
 Colby V. Larason, 
 Cole V. Bruce, 
 Cole V. Butler, 
 
 Cole V. Cole, 
 Cole V. Hilt, 
 Cole V. Lee, 
 Cole V. Littlefield, 
 Cole V. Sprowl, 
 
 Cole V. Sprowl, 
 CoUen V. Kelsey, 
 Collins T. Lambert, 
 Coltman v. Hall, 
 Columbus Ins. Co. v. 
 Eaton, 
 
 Covenant, 149. Deed, 178. 
 
 Bills, &c., 65. 
 
 Keview, 603, 604. 
 
 Husband and Wife, 298. 
 
 Exceptions, 257. 
 
 Corporation, 127, 129, 131. Costs, 135. Judg- 
 ment, 331. 
 
 Evidence, 244. Witness, 694. 
 
 Vide Grose v. Hilt. 
 
 Covenant, 145, 147. Damages, 156. 
 
 Trusts, 569. 
 
 Estoppel, 216. Nuisance, 415. Pleading, 453. 
 Way, 584, 685. 
 
 Costs, 133. 
 
 Married Woman, 383. 
 
 Poor Debtor, 460. 
 
 Guardian and Ward, 293. 
 
 Trustee Process, 661. 
 Com. Bank v. Neally, Executors, &c., 272. Trustee Process, 665. 
 Cony V. Wheelock, Bills, &c , 68. Partnership, 433. 
 ~ Exceptions, 265. Practice, 473. 
 
 Executors, &c., 269. 
 
 Cook V. Brown, 
 Cook V. Lewis, 
 Coolbroth v. Puring- 
 
 ton, Bills, &e., 64. 
 
 Coombs V. Parrington, Actions, &c., 13. Way, 678. 
 Coombs V. Topsham, New Trial, 412. Way, 581. 
 Coombs V. Warren, Bills, &c., 69. Collector, 93. Execution, 260. 
 
 Mortgage, 395, 397. Tax, 542. 
 Cooper V. Alexander, Pauper, 442, 443. 
 Cooper V. Bakeman, Keplevin, 500. 
 
 Cooper V. Bakeman, Deposition, 180. Justice of the Peace, 337. Wit- 
 ness, 594. 
 Cooper V. Curtis, Bank, 55. Statutes, 535. 
 
 Copeland v. Copeland, Covenant, 145, 147. Damages, 156. 
 Copeland v. Copeland, Estoppel, 215. Exceptions, 262. Mortgage, 397. 
 New Trial, 413. 
 
 Law and Fact, 343. 
 
 Evidence, 242, 247. Pauper, 440, 441. 
 
 Fixtures, 280. Mortgage, 393. 
 
 Bankruptcy, 69. 
 
 Copeland v. Hall, 
 Corinth v. Lincoln, 
 Corliss V. McLagin, 
 Corliss V. Shepherd, 
 
XVI 
 
 TABLE OP CASES. 
 
 XXXV. 
 xxxix. 
 xxxiii. 
 
 XXX. 
 XXX. 
 
 xxxi. 
 xxxi. 
 
 XXXV. 
 
 xxxii. 
 xxxvi. 
 
 XXXV. 
 XXX. 
 
 1*1, 
 
 333, 
 237, 
 221, 
 456, 
 lOi, 
 439, 
 302, 
 
 65, 
 604, 
 
 86, 
 422, 
 
 xxxiii. 436, 
 
 xliii. 561, 
 
 xxxi. 177, 
 
 xxxii. 244, 
 
 xli. 355, 
 
 xxix. 627, 
 
 xxxi. 306, 
 
 xlii. 329, 
 xxviii. 271, 
 xxxiii. 368, 
 xxxii. 256, 
 
 xxxix. 530, 
 xxxvii. 444, 
 
 xxix. 105, 
 XXXV. 478, 
 
 xliii. 203, 
 
 xliii. 192, 
 
 xxxii. 316, 
 
 xliii. 455, 
 
 xl. 24, 
 
 xU. 230, 
 
 xxxviii. 452, 
 
 xxxiv. 496, 
 
 xxxviii. 589, 
 
 xxix. 459, 
 
 xxxiv. 289, 
 
 xxxiv. 487, 
 
 xxxiv. 247, 
 
 xxxiii. 201, 
 
 xH. 694, 
 
 CornviUe v. Brighton, Evidence, 225. 
 
 Cornville v. Brighton, Pauper, 443. 
 
 Cornville v. Co. Com., Certiorari, 88, 89. County Commissioners, 140. 
 
 Co. Com., petitioners. County Commissioners, 138. Public Lots, 482. 
 
 Co. Com. V. Spofford, Exceptions, 253. 
 
 Covell V. Dolloff, Mortgage, 405. 
 
 Cowan V. Wheeler, Evidence, 230. Execution, 260, 266. Officer, 419. 
 
 Joint Stock Association, 325, 326. • 
 
 Evidence, 236. 
 
 Actions, &c., 11. Fraud, &c., 285. 
 
 Trover, 569. 
 
 Courf Martial, 143. Error, 210. Judgment, 332. 
 Militia, 384. Ne^ Trial, 410. 
 
 Trespass, 567. 
 
 Appeal, 23. Insolvent Estates, 315. 
 
 Attachment, 42. Deed, 175, 176. Estoppel, 213. 
 
 Executors, &c., 268. 
 
 Arbitration, 26, 31, 32. Judgment, 330. 
 
 Covenant, 144, 146, 148. Witness, 592. 
 
 Executors, &c., 268. Mortgage, 394, 396. Real 
 Action, 488. 
 
 Payment, 446. 
 
 Bankruptcy, 69. 
 
 Error, 211. 
 
 Husband and Wife, 299. Interest, 324. Mar- 
 ried Woman, 381. 
 
 Constable, 100. 
 
 Cox V. Bodtish, 
 Cragin v. Tarr, 
 Craig V. Webber, 
 Cram v. Thissell, 
 Crawford v. Howard, 
 
 Crocker v. Carson, 
 Crocker v. Crocker, 
 Crocker v. Pierce, 
 Crocker v. Smith, 
 Crocker v. Buck, 
 Crocker v. Jewell, 
 Crooker v. Jewell, 
 
 Crocker v. Tallman, 
 Crooker v. Trevett, 
 Crosby v. Boyden, 
 Crosby v. Otis, 
 
 Crowell V. Whittier, 
 Cumb. M. Railway v. 
 
 Portland, Tax, 542. 
 
 Cummings v. Blake, Costs, 134. 
 Cummings v. Buck- 
 field B. R. R. Co., Amendment, 20. Exceptions, 254. 
 Cummings v. Herrick, Bills, &c., 71- 
 
 Cummings V. Webster, Corporation, 128. Estoppel, 215, 216. 
 Cunningham v. Bach- 
 elder, Bills, &c., 77. Practice, 473. Receipt, 491. 
 Cunningham v. Buck, Liens, 355. 
 Curtis V. Curtis, Heirs, 297. Release, 496. 
 Curtis V. Hobart, Dower, 192. Guardian and Ward, 295. 
 Cushing V. Babeock, Arbitration, 25, 27, 29. Evidence, 238. Waiver, 
 
 876. 
 Cushing V. Thompson, Execution, 266, 267. 
 
 Cushing V. Wyman, Actions, &c., 12. Contract, 110. Fraud, &c., 286. 
 Cushmau v. Downing, Usury, 571, 572. 
 Cushman v. Holyoke, Sale, 610. 
 Cushman v. N. W. 
 
 Insurance, 323. 
 
 Constitutional Law, 102. Trespass, 554. 
 
 Frauds, Statute of, 288. 
 
 Deposition, 182. Justice of the Peace, 337. Lim- 
 itations, &c., 368. Pauper, 443. 
 
 Amendment, 21. 
 
 Ins. Co., 
 Cushman v. Smith, 
 Cutler V. Everett, 
 Cutler V. Maker, 
 
 xli. 560, Cutis v. Haynes, 
 
 D. 
 
 xxxiii. 382, Daggett v. Bakeman, Poor Debtor, 458. 
 
 xxix. 356, Daggett v. Chase, 
 
 xxxii. 138, Dakin v. Goddard, 
 
 xxxi. 367, Dam. Toll Bridge v. 
 Cotter, 
 
 xli. 25, Dana v. Haskell, 
 
 XXXV. 198, Dane v. Treat, 
 
 xlii. 50, Danforth v. Pratt, 
 
 Exceptions, 256. Practice, 468. 
 Landlord, Ike, 341. 
 
 Statutes, 532. 
 Equity, 202. 
 Practice, 470. 
 Liens, 354, 366, 357. 
 
TABLE OF OASES. 
 
 XVU 
 
 xxxvi. 370, Darling v. Dodge, 
 
 xlii. 522, 
 
 xxxix. 304, 
 
 xxix. 391, 
 
 xli. 38, 
 
 xxxvu. 
 
 xxxiv. 
 
 xxxviil. 
 
 xxxii. 
 
 xxxiii. 
 
 XXX, 
 
 xxxix. 
 
 xli. 
 
 xxxi. 
 
 xli. 
 
 xxxviii. 
 
 xliii. 
 
 397, 
 429, 
 90, 
 411, 
 222, 
 389, 
 279, 
 326, 
 107, 
 120, 
 153, 
 460, 
 
 xxxvii, 264, 
 
 xxxiv. 41, 
 xxxi. 172, 
 
 xxxii. 44, 
 
 XXX. 223, 
 
 xxxii. 508, 
 
 xli. 332, 
 
 xxxvi. 227, 
 
 xxxvi. 431, 
 
 xxviii. 389, 
 
 XXX. 470, 
 
 xxvii. 357, 
 xxxviii. 289, 
 XXXV. 373, 
 xxxii. 174, 
 xxxii. 572, 
 
 xliii. 492, 
 XXX. 370, 
 
 xxxii. 182, . 
 xxxiii. 256, 
 xxxiii, 202, 
 xli, 221, 
 
 xxxm. 
 
 xxxviii. 
 
 xlii. 
 
 xxxii. 
 
 xxxvii. 
 
 xliii. 
 
 xxxi. 
 
 xxxiv. 
 
 xxxi. 
 
 XXXV. 
 
 xl. 
 
 XXXV. 
 
 xxxiii. 
 xxxvi. 
 
 xli. 
 
 355, 
 569, 
 
 72, 
 268, 
 442, 
 216, 
 290, 
 
 96, 
 343, 
 636, 
 331, 
 535, 
 430, 
 168, 
 277, 
 
 DaviB V. Bangor, 
 Davis V. Briggs, 
 Davis V. Brigham, 
 Davis, ex parte, 
 
 Davis V. Herrick, 
 Davis V. Millett, 
 Davis V. Muncey, 
 Davis V. Nash, 
 Davis V. Rogers, 
 Davis V. Sawtelle, 
 Davis v. Tibbetts, 
 Day V. Frye, 
 Dean v. Hooper, 
 Dearborn v. Hoit, 
 Decker v. Hughes, 
 Decrow v. Waldo M. 
 
 Ins. Co., 
 Deering v . Adams, 
 
 Deering t. Adams, 
 Deering v. York & C. 
 
 R. R. Co., 
 Dennett v. Goodwin, 
 Dennett v. Lamson, 
 Dennett, petitioner, 
 Dennison v. Banner, 
 Dennison v. Benner, 
 Dennison v. Mason, 
 Denny v. Metcalf, 
 
 Dennysville v. Tres- 
 
 cott, 
 Derby v. Jones, 
 Deshon v. Porter, 
 Detroit v. Co. Com., 
 Dexter v. Field, 
 Dickey v. Franklin 
 
 Bank, 
 Dickey v. Me. Tel. Co. 
 Dillingham v. Smith, 
 
 Dillingham v. Smith, 
 Dinsmore v. Weston, 
 Ditson V. Randall, 
 Dixfield V,- Newton, 
 
 Doak V. Wiswell, 
 Doak V. Wiswell, 
 Doane v. Hadlock, 
 Doane v. Lake, 
 Dockray v. Dnnn, 
 Dockray v. Thurston, 
 Dodge V. Barnes, 
 Dodge V. Emerson, 
 Dodge v> Greeley, 
 Dodge V. Hooper, 
 Dodge V. Reed, 
 Dodge V. Swazey, 
 •Doe V. Mouson, 
 Doe V. Scribner, 
 Doe V. Scribner, 
 
 Attachment, 43. Evidence, 239. Exceptions, 257. 
 
 Firewood, 279. Law and Fact, 344. Oificer, 
 
 418, 419. 
 Town, 560. Way, 583. 
 Bills, &c., 75, Partnership, 432, 434. 
 Mills, 387. Prescription, 475, 476. 
 Governor and Council, 291. Jurisdiction, 335. 
 
 Mandamus, 380. S. J. Court, 537. Writs, &c., 
 
 697, 598. 
 Married Woman, 382. 
 
 Husband and Wife, 301. Married Woman, 381. 
 Mills, 385. 
 Trespass, 554. 
 Equity, 203. 
 Witness, 591. 
 
 Fraud, &o., 287. Trespass, 555. 
 Pleading, 457. Practice, 475. 
 Probate Court, 480. 
 Liquor, 366. 
 Distribution, &c., 185. 
 
 Insurance, 319. 
 
 Executors, &c., 270. Probate Court, 481. Will, 
 
 589, 590. 
 Practice, 469. Probate Court, 481. 
 
 Constitutional Law, 103. Equity, 200. 
 Bills, &c., 64, 68, 77. Limitations, &c., 361. 
 Witness, 594. 
 
 Governor and Council, 290, 291, Mandamus, 379. 
 Deposition, 182. Evidence, 247. 
 Contract, 120. Trustee Process, 568. 
 Forcible Entry, &o., 283.' Recognizance, 492. 
 Actions, &c., 7. Partnership, 434. Trustee Pro- 
 cess, 563. 
 
 Pauper, 436, 440. 
 
 Covenant, 146. Deed, 174, 175. Real Action, 487. 
 
 Deed, 177. 
 
 Certiorari, 88. County Coraraiss'rs, 138, 140, 141. 
 
 Mortgage, 406. Trustee Process, 561. 
 
 Trover, 559. 
 , Way, 584. 
 
 County Commissioners, 139. Evidence, 217. Pub- 
 lic Lots, 482, 483. Replevin, 498, 500. 
 
 Damages, 151. Practice, 474. Replevin, 500. 
 
 Practice, 468. 
 
 Fraud, &o., 287. Law and Fact, 343. 
 
 Equity, 199. Estoppel, 215. Mortgage, 396, 397, 
 399. 
 
 Real Action, 490. 
 
 Fixtures, 281. 
 
 Will, 588, 589, 
 
 Will, 588. 
 
 Bills, &c., 66, 78. 
 
 Equity, 208. 
 
 Contract, 115. Corporation, 122, 130. 
 
 Bills, &c., 64, 69, 74. 
 
 Contract, 113. Exceptions, 253. 
 
 Shipping, 529. 
 
 Review, 504. 
 
 Payment, 446. Set-off, 522. 
 
 Liens, 352. 
 
 Evidence, 219. Verdict, 573. 
 
 Assignment, 37. 
 
XVIU 
 
 TABLE OP CASES. 
 
 xli. 473, Dolan v. Euzzell, 
 
 xxxi. 422, Dole V. Lincoln, 
 
 xxxii. 94, Dole v. Warren, 
 
 xxxviii. 54, Dolloif v. Hartwell, 
 
 xxxiii. 546, DoUoff v. Stimpson, 
 
 xxxviii. 376, Donahoe v. Eiohards, 
 
 xxxviii. 379, Donahoe t. Richards, 
 
 xXxviii. 217, Donnell v. Gatchell, 
 
 xxxvi. 211, Dow^. Dow, 
 
 xxxiv. 110, Dow V. Huckins, 
 
 xxix. 117, Dow V. Sawyer, 
 
 xxxvi. 642, Doyle y. True, 
 
 xxxii. 524, Drake v. Eogers, 
 
 xxxvii. 389, Drew v. Drew, 
 
 xl. 266, Drew v. Livermore, 
 
 xl. 35, Drummond v. Drum- 
 mond, 
 
 XXX. 433, Drummond v. Hink- 
 ley, 
 
 xxxix. 347, Drummond v. Hum- 
 phreys, 
 
 xxxviii. 208, Drummond v. Wins- 
 low, 
 
 xxxix. 386, Ducett v. Cunning- 
 ham, 
 
 XXXV. 14, Dudley v. Green, 
 
 xxxix. 415, Duncan v. Reed, 
 
 xxxiii. 265, Dunlap v. Atkinson, 
 
 xxxviii. 112, Dunlap v. Burnham, 
 
 xxxi. 435, Dunlap v. Glidden, 
 
 xxxi. 610, Dunlap v. Glidden, 
 
 xxxiv. 617, Dunlap v. Glidden, 
 
 xxxix. 367, Dunn v. Hutchinson,, 
 
 xxxiv. 379, Dunn v. Marston, 
 
 xli. 239, Dunn v. Moody, 
 
 xliii. 336, Dunn v. Spaulding, 
 
 xxxii. 273, Durgin v. Baker, 
 
 XXXV. 605, Dutton v. Colby, 
 
 xxviii. 664, Dwinel v. Barnard, 
 
 xxxii. 116, Dwinel v. Barnard, 
 
 xxxvii. 97, Dwinel v. Holmes, 
 
 xxxiii. 172, Dwinel v. Holmes, 
 
 XXX. 268, Dwinel v. Howard, 
 
 xxxviii. 464, Dwinel v. Larrabee, 
 
 xxxviii. 609, Dwinel v. Perley, 
 
 xxxii. 197, Dwinel v. Perley, 
 
 xxxi. 167, Dwinel v. Pottle, 
 
 xxxii. 119, Dwinel v. Soper, 
 
 XXX, 384, Dwinel v. Stone, 
 
 xxxvi. 609, Dwinel v. Veazie, 
 
 xli. 89, Dyer v. Burnham, 
 
 xxix. 277, Dyer v. Haley, 
 
 xliii. 265, Dyer v. Huff, 
 
 XXX. 217, Dyer v. Lowell, 
 
 xxxiii, 260, Dyer v, Lowell, 
 
 Law and Fact, 345. Liquor, 365, '370. 
 
 Donatio, &e., 187. 
 
 Actions, &c., 10. Bankruptcy, 59. 
 
 Appeal, 23. Record, 494. 
 
 New Trial, 410. 
 
 Sup. School Committee, 636. 
 
 Constitutional Law, 103. Sup. School Com, 636. 
 
 Limitations, &c., 362. 
 
 Dower, 188. Will, 689. 
 
 Contract, 116. 
 
 Evidence, 225. 
 
 Liens, 352. Officer, 422. 
 
 Bills, &c., 76, 79. Practice, 470, 471. 
 
 Limitations, &c., 360. 
 
 Attachment, 47, 48. Mortgage, 396, 396, 
 
 Dower, 191. 
 
 Mills, 384. 
 
 Agency, 18. Assumpsit, 40. 
 
 Agency, 15. Shipping, 631. 
 
 Officer, 422. 
 
 Agency, 16. Costs, 133. Lands reserved, &c., 342, 
 
 Shipping, 626, 628. 
 
 Error, 212. 
 
 Attorney, &c., 62. Review, 504. 
 
 Actions, &e., 10. Judgment, 330. 
 
 Evidence, 217, Practice, 469, 475, Trespass, 656. 
 
 Estoppel, 214. Evidence, 230. Pleading, 461. 
 
 Trespass, 554. 
 Exceptions, 255. 
 Bills, &c., 66, 68. 
 Exceptions, 253, 255. 
 Surety, 639. 
 Contract, 113. 
 
 Porcible Entry, &c., 283. Landlord, &c., 341. 
 Contract, 107. Riparian Rights, 605, 606. 
 Contract, 116. Damages, 155. 
 Abatement, 2. Partition, 428. 
 Deed, 162. Tender, 547. 
 Contract, 109. 
 
 Joint Tenants, 329. Practice, 468. 
 Equity, 201, 202. 
 
 Bankruptcy, 61. Mortgage, 394, 396, 397. 
 Evidence, 241. 
 Execution, 260, 263, 264. 
 Partnership, 430, 431. Trustee Process, 564. 
 Equity, 206. Trusts, 668, 669. 
 Poor Debtor, 466. 
 Landlord, &c., 340. 
 Witness, 696, 
 
 Deed, 176. Paitition, 427, 428. 
 Certiorari, 88, 89. 
 
 XXXV. 414, 
 
 XXX. 68, 
 
 xxxvii. 86, 
 
 xl. 262, 
 
 Earle v. Rowe, 
 Eastman v. Howard, 
 Eastman v, Stowe, 
 Eastport v. Belfast, 
 
 E. 
 
 Devise, 183. Partition, 428. Probate Court, 481. 
 Contract, 106. Practice, 471. 
 Vide Appendix. 
 
 Evidence, 238. Insane Persons, 313, 314. Pau- 
 per, 441. 
 
TABLE OF CASES. 
 
 XIX 
 
 xl. 280, 
 
 XXXV. 402, 
 
 xxviii. 436, 
 
 xxxiv. 510, 
 
 xxix. 120, 
 
 xli. 462, 
 
 xUii. 474, 
 
 xxxii, 104, 
 
 xxxiv. 148, 
 
 xxxix, 526, 
 
 xxviii. 386, 
 
 xxxii, 34, 
 
 xxxviii. 114, 
 
 XXXV. 125, 
 
 xxxvii. 548, 
 
 xxxi. 247, 
 
 xxxii. 176, 
 xl. 430, 
 xxxii. 337, 
 xxvii 536, 
 xxxiv. 347, 
 xli. 565, 
 
 XXXII. 
 
 xxxii. 
 
 xxxi. 
 
 xxxviii. 
 
 xxxix. 
 
 xlii. 
 
 xxxii. 
 
 xxxiii. 
 
 XXXV. 
 
 xxxix. 
 
 XXX. 
 
 xxxiii. 
 
 380, 
 169, 
 155, 
 99, 
 326, 
 204, 
 243, 
 440, 
 511, 
 467, 
 164, 
 170, 
 
 xxxiv. 33, 
 xxxiii. 275, 
 
 Eastport v. E. Maohias, 
 Eastport V. E. Machiaa, 
 Eaton V. Elliot, 
 Eaton V. McKowu, 
 Eaton V. Knapp, 
 Eddington v. Brewer, 
 Edwards v. Currier, 
 Elder v. True, 
 Eldridge v. Preble, 
 
 Ellis v. Ellis, 
 Ellis V. Ham, 
 Ellis V. Higgins, 
 Ellis V. Smith, 
 Ellis V. Warren, 
 Ellis V. "WHttier, 
 Ellsworth V. Mitchell, 
 
 Ellsworth V. Starbird, 
 Elmer v. Pennell, 
 Elwell V. Elwell, 
 Elwell V. Sylvester, 
 Emerson v. Joy, 
 Emerson v. McNamara, 
 
 Emerson v. Noble, 
 Emerson, petitioner, 
 Emery v. Estes, 
 Emery v. Fowler, 
 Emery v. Fowler, 
 Emery v. Webster, 
 English V. Sprague, 
 English V. Sprague, 
 Erskine v. Boyd, 
 Erskine v. Decker, 
 Estes V. Blake, 
 Estes V. School Dis- 
 trict in Bethel, 
 Evans v. Smith, 
 Eveleth v. Harman, 
 
 Limitations, &c., 359. Lunatic, 376. 
 
 Lisane Persons, 313. 
 
 District Court, 185. New Trial, 412. 
 
 Bills, &c., 69, 73. 
 
 Deed, 170. 
 
 Pauper, 436, 437, 438. 
 
 Evidence, 225. New Trial, 412. 
 
 Covenant, 145. Damages, 156. Mortgage, 399. 
 
 Abatement, 3. Execution, 261. Husband & Wife, 
 
 299,300. Judgment, 332. Married Woman, 381. 
 Fence Viewers, 278. 
 Bankruptcy, 58, 69. 
 Evidence, 227. Fraud, &c., 286. 
 Bond, 82. Set-off, 523. Statutes, 533. 
 Exceptions, 267. 
 Costs, 133. 
 Actions, &c., 9. Contract, 107. Liquor, 365. 
 
 Mortgage, 394, 398, 403. 
 Deed, 165. Equity, 200. 
 Evidence, 221, 238. Patent, 436. 
 Divorce, 186, 187. 
 
 Amendment, 22. Review, &o., 603. 
 Nonsuit, 414. Practice, 471. 
 Assumpsit, 40. Contract, 110. Exceptions, 254, 
 
 256. Fraud, &c., 286, 288. Sale, 611, 512. 
 Liquor, 367. 
 
 Guardian and Ward, 293. 
 
 Bills, &c., 77, 79. Evidence, 233. Practice, 472. 
 Deed, 169, 173. Evidence, 238. 
 Evidence, 230, 261. Trespass, 657. 
 Evidence, 228, 229. 
 Appeal, 23. Practice, 467. 
 Justice of the Peace, 337, 338. Record, 494. 
 Deposition, 181. 
 Fraud, &o., 287. 
 Bills, &c., 72, 79. Limitations, &c., 360, 363. 
 
 School District, 514. 
 Limitations, &c., 363. 
 New Trial, 411. 
 
 F. 
 
 XXXIV. 93, 
 xxxii. 474, 
 
 xli. 400, 
 xxxii. 419, 
 XXXV. 267, 
 
 xxxiii. 263, 
 xxxiv. 394, 
 
 xxxii. 674, 
 xxxvi. 34, 
 
 XXX. 236, 
 xxxvii. 308, 
 
 xxxi. 342, 
 xxxix. 659, 
 
 xliii. 180, 
 
 xxxvii. 289, 
 
 Fairfield v- Hancock, 
 Farley v. Bryant, 
 
 Farley v. Bryant, 
 Farnsworth v. Jackson, 
 Farnsworth v. Rich- 
 ardson, 
 Farnsworth v. Eowe, 
 Farrar y. Cooper, 
 
 Agency, 18. Bills, &c., 79. Evidence, 244. 
 Easement, 194. Equity, 200, 203, 204, 205. Evi- 
 dence, 227. 
 Costs, 136. Exceptions, 255. 
 Assignment, 34, 36. 
 
 Replevin of a Person, 501. 
 Bills, &c., 67. 
 
 Abandonment, 1. Deed, 172, 176, 177. Estoppel, 
 214. Evidence, 232. Mills,385. Prescription, 476. 
 Way, 681, 582. 
 
 Farrar v. Greene, 
 Farrin v. Ken. & 
 
 Port!. R. R. Co., 
 Farringtou v. Howard, 
 Farwell v. Sturdivant, 
 Fellows V. Fellows, 
 Fellows V. School Dis. 
 
 No. 8, in Fayette, Duress, 194. Voluntary payment, 574 
 Female O. Asylum v. 
 
 Johnson, Corporation, 126. 
 
 Feruald v. Chase, Trover, 669, 660. 
 
 Practice, 471. 
 , Militia, 384. 
 , Interest, 324. Mortgage, 401. 
 
 Divorce, 186. 
 
XX 
 
 TABLE OP CASES. 
 
 xxix. 368, 
 xli. 65, 
 
 xxxvi. 693, 
 XXXV. 339, 
 xxxir. 35, 
 
 xxxiv. 405, 
 
 xli. 104, 
 
 XXX. 459, 
 
 xlii. 32, 
 
 Fessenden v. Chesley, Poor Debtor, 460, 464. 
 Fickett T. Swift, Evidence, 245. Frauds, Statute of, 289. 
 
 suit, 414. Partnership, 436. 
 
 Arbitration, 29, 31. 
 
 Forcible Entry, &c., 283. 
 
 Partition, 428. 
 
 Non- 
 
 Field V. Bissell, 
 Field V. Higgins, 
 Field V. persons un- 
 known. 
 Field V. Towle, 
 Files V. Magoon, 
 Fisher v. Foss, 
 Fisher v. Shaw, 
 
 xxxviu. 
 
 XXX. 
 
 XXXV. 
 
 xli. 
 
 xliii. 
 xxix. 
 xxxii. 
 
 xl. 
 
 XXX. 
 
 xU. 
 
 xl. 
 
 xxxi. 
 
 xxxviii. 
 
 534, 
 79, 
 349, 
 441, 
 463, 
 169, 
 485, 
 687, 
 364, 
 226, 
 347, 
 315, 
 302, 
 414, 
 
 Town, 549. "Way, 586. 
 
 Landlord, &c., 340. Trespass, 655. 
 
 Bankruptcy, 68. Partnership, 433. 
 
 Bond, 84. Equity, 199, 207, 208, 210. Mortgage, 
 403. Waiver, 675. 
 Fisher v. True, Evidence, 245, 248. 
 
 Fisk ,. Chandler, Deed, 166. 
 
 Fisk V. Keene, Devise, &c., 183, 184. Will, 589. 
 
 Fiske V. Holmes, Contract, 108. Payment, 446. Pleading, 465. 
 
 Fitch V. Tyler, Execution, 261, 263, 264. Officer, 418. 
 
 Fitzgibbon v. Brown, Malicious Prosecution, 378. Waiver, 676. 
 Fletcher v. Clark, Exceptions, 253. Trustee Process, 663, 666. 
 
 Bills, &c., 73, 76. Evidence, 224. 
 
 Equity, 197, 199. Executors, &c., 273, 274. 
 
 Tax, 544. Time, 648. 
 
 Bills, &c , 69. New Trial, 413. Witness, 692. 
 
 Abatement, 2. 
 
 Abatement, 3, 4. 
 
 xxvii. 207, 
 
 xxxii. 17, 
 
 xxviii. 204, 
 
 xU. 382, 
 
 Fletcher v. Gushee, 
 Fletcher v. Holmes, 
 FUnt V. Sawyer, 
 Fogg V. Babcock, 
 Fogg V. Cushing, 
 Fogg V. Fogg, 
 
 Folsom V. Mer. Mut. ■) Evidence, 229, 236, 236. 
 Ins. Co., 5 Liens, 356. 
 
 81, 
 xxix. 623, 
 xxvii. 117, 
 XXXV. 60, 
 xxix. 442, 
 
 xxix. 136, 
 xl. 64, 
 xl. 64, 
 xli. 426, 
 
 xxxii. 178, 
 xUi. 168, 
 
 xxxi. 197, 
 
 xxxiv. 455, 
 
 xxxi. 189, 
 
 xli. 81, 
 
 xxix. 128, 
 
 xl. 308, 
 
 xxviii. 69, 
 
 xl. 389, 
 
 xli. 537, 
 
 s. 489, 
 
 xxxvi. 179, 
 xj^xvi. 221, 
 xxxix. 642, 
 
 xi. 621, 
 xxxii. 686, 
 
 Insurance, 317, 320, 323. 
 
 Foord V. Hains, 
 Footman v. Stetson, 
 Forbes v. Bethel, 
 Forsyth v. Day, 
 
 Foss V. Haynes, 
 Foseett v. Bearce, 
 Fossett V. Bearce, 
 Foster v. Cushing, 
 Foster v. Dow, 
 
 Foster v. FiEeld, 
 
 Foster v. Goddard, 
 
 Foster v. Hinckley,' 
 
 Foster v. Paulk, 
 
 Foster v. Pennington, Pleading, 463. 
 
 Witness, 595. 
 
 Judgment, 330. Usury, 571. 
 
 Costs, 136. 
 
 Agency, 16, 17. Evidence, 223, 236. Fraud, &c., 
 
 285. 
 Equity, 197, 200, 203, 207. 
 Evidence, 230. Town, 561. 
 Fisheries, 279. 
 Liens, 363. Logs, &c., 374. 
 Actions, &c., 7, 8. Evidence, 220, 221. License, 
 
 350. Peddling, &c., 448. 
 Evidence, 225, 244. Partnership, 432, 434. 
 Way, 584. 
 Vide Appendix. 
 Checks, 91. 
 
 Foster v. Perkins, 
 Fowler v. Ken. & 
 
 Portl. R. B. Co., 
 Fowler v. Ludwig, 
 Fowler v. Robinson, 
 Fox V. Corey, 
 Foxcroft V. Barnes, 
 Foxcroft V. Crooker, 
 Francis v. Wood, 
 Frankfort v. Co. Com 
 Frankfort v. White, 
 Franklin Bank v. 
 
 Byram, 
 Franklin Bank v. 
 
 Cooper, 
 Franklin Bank v. 
 
 Cooper, 
 Frankfin Bank v. 
 
 Cooper, 
 Franklin Bank v. 
 
 Dennis, 
 Franklin Bank v. 
 
 Lawrence, 
 
 Attachment, 42. Mortgage, 405, 408. 
 
 Contract, 115. 
 
 Bills, &c., 67. Corporation, 127. Payment, 445, 446. 
 Corporation, 126. 
 Landlord, &c., 340, 341. 
 Partition, 429. Seizin, &c., 619. 
 Liquor, 366, 373. 
 Evidence, 238. 
 , Firewards, 279. 
 Collector, 93. 
 
 Bank, 67. 
 > Actions, &c., 11. Bank, 56. Evidence, 246. Sure- 
 3 ty, 637. Witness, 695. 
 
 Set-off, 523. 
 )Bank, 56. Evidence, 246, 247. Practice, 473. 
 3 Surety, 537. 
 
 Witness, 594. 
 
 Bills, &c., 73. 
 
TABLE OF CASES. 
 
 XXI 
 
 xxxi. 501 
 xxxix. 532; 
 xxxvii. 619; 
 
 xl. 383 
 
 xU. 105, 
 
 xxxix. 426; 
 
 xxxviii. 343, 
 
 xli. 
 
 xxix, 
 
 xxxiii. 
 
 xxxviii. 
 
 xl. 
 
 xliii. 
 
 xxxiii, 
 
 xxvii. 
 
 xxxvii. 
 
 xxxviii. 
 
 XXX. 
 XXXV. 
 
 588 
 369 
 
 76 
 313 
 148 
 370 
 396 
 381 
 100 
 103 
 188, 
 
 29 
 
 xli. 241 
 
 xxxix, 297 
 
 xxxi. 325; 
 
 xxxii. 334, 
 
 xlii. 481; 
 
 xxxLX. 519; 
 
 xxvii. 31 
 
 xxxix. 104; 
 
 XXXV. 332; 
 
 XXX. 491 
 
 xxxix; 122, 
 
 Franklin Bank v. 5 
 Pratt, 3 
 
 Franklin Bank v. 
 
 Stevens, 
 Franldin Bank v. 
 
 Steward, 
 Freedom v. Weed, 
 Freeland v. Prince, 
 Freeman v. Freeman, 
 Freeman v. Machias 
 , W. P. & M. Co., 
 Freeman v. Morey, 
 Freeman v. Thayer, 
 Freeman v. Thayer, 
 Freeman v. Weld, 
 Freese v. Mclntyre, 
 French v. Moulton, 
 French v. Peters, 
 French v. Pratt, 
 French v. Snell, 
 Frohock v. Pattee, 
 Frost V. Tibbetts, 
 Frye v. Gragg, 
 
 Fuller V. Bartlett, 
 Fuller V. Field, 
 Fuller v.K.M. Ins. Co., 
 Fuller V. Kenney, 
 Fuller V. Loring, 
 Fuller V. Tabor, 
 FuUerton v. Bundlett, 
 Furbish v. Roberts, 
 Furlong v. Hysom, 
 Furlong v. PoUeys, 
 Furlong v. Soule, 
 
 Mortgage, 406. 
 694. 
 
 New. Trial, 411,412. Witness, 
 
 Bank, 56. Exceptions, 254. Surety, 638. 
 
 Bank, 57. Evidence, 246. 
 Town, 550. 
 
 Deposition, 179, 182. Practice, 469. 
 Dower, 193. Pleading, 452, 454. 
 
 Corporation, 121, 127, 129. Pleading, 456. 
 
 Contract, 118. New Trial, 412. 
 
 ■Estoppel, 213. 
 
 Evidence, 219, 231. Execution, 260. Tax, 646. 
 
 Equity, 198. 
 
 Waiver, 676. 
 
 Infant, 312. 
 
 Dower, 190, 191. 
 
 Dower, 189, 190. Probate Court, 480. 
 
 Recognizance, 492. 
 
 Penalty, 448. Pleading, 454. Statutes, 633. 
 
 Bankruptcy, 60. Pleading, 454. 
 
 Estoppel, 215. Evidence, 237. Nonsuit, 414. 
 
 Practice, 471. Seizin, &o., 620. 
 Married Woman, 383. 
 Sale, 612. 
 
 Insurance, 321. Jury, 335. 
 Attachment, 46. Officer, 418. 
 Creditor and Debtor, 149. Surety, 638. 
 Personal Property, 450. Trover, 669, 660. 
 BUls, &c., 70. Evidence, 243. 
 Arrest, 32. 
 
 Evidence, 241. Husband and Wife, 298. 
 Damages, 154, 165. 
 Execution, 262. Executors, &c., 270. Personal 
 
 Property, 449. Probate Court, 481. 
 
 XXX. 
 
 162, 
 
 xxxi. 
 
 243, 
 
 xxxiv. 
 
 56, 
 
 xxxviii. 
 
 439, 
 
 xxxvi. 
 
 252, 
 
 .xxvii. 
 
 443, 
 
 xxxviii. 
 
 443, 
 
 xxvii. 
 
 366, 
 
 xliii. 
 
 544, 
 
 xxxvi. 
 
 54, 
 
 xxxii. 
 
 179, 
 
 XXXV. 
 
 308, 
 
 xxix. 
 
 462, 
 
 xxxvii. 
 
 506, 
 
 xxxvii. 
 
 45, 
 
 xxxii. 
 
 665, 
 
 XXXV. 
 
 300, 
 
 xxix. 
 
 79, 
 
 xxix. 
 
 107, 
 
 xxxiii. 
 
 360, 
 
 xUi. 
 
 98, 
 
 xxxii. 
 
 320, 
 
 G. 
 
 Gammon v. Chandler, Attorneys, &c., 62. Evidence, 230. 
 Gammon v. Freeman, Deed, 176. Dower, 189, 193. Estoppel, 214. 
 Gannett V. Cunning- 7 Assignment, 35. Assumpsit, 39. Officer, 419. 
 
 ham, 5 Partnership, 432, 433, 434. 
 
 Gardiner v. Piscata- 
 quis M. F. Ins. Co., Insurance, 319, 320, 323. Practice, 466. 
 Gardiner v. Farming- 
 New Trial, 411, 412. 
 
 Limitations, &c., 359. Replevin, 498. 
 
 New Trial, 412. Way, 682, 683. 
 
 Bills, &c., 72. Evidence, 220, 223. 
 
 Agency, 17. 
 
 Deed, 167, 168. 
 
 Deposition, 179, 180. Practice, 469. 
 
 Bond, 83, 85. Damages, 157, 158. 
 
 Constable, 99. Officer, 421. 
 
 Way, 579. 
 
 Evidence, 229. Witness, 595. 
 
 Appeal, 23. Practice, 467. 
 
 Shipping, 627. 
 
 dale, 
 
 Garlin v. Strickland, 
 Garmon v. Bangor, 
 Garnscy v. AUen, 
 Gates V. Parker, 
 Gay V. Walker, 
 George v. Nichols, 
 Gennings v. Norton, 
 Gent V. Gray, 
 Gibbs V. Larrahee, 
 Gilbert v. Curtis, 
 Giles V. Tigereaux, 
 Giles V. Vigereaux, 
 
 Gillighany.Boardman, Guaranty, 292 
 GiUighan v. Spiller, Poor Debtor, 458, 462. 
 Gillighan v. Tibbetts, Evidence, 246. 
 Gilmanv.Cunningham,Assumpsit, 40. 
 GUman t. Pejrkins, Survey, &c., 541. 
 
XXll 
 
 TABLE OF CASES. 
 
 641 
 60, 
 
 644, 
 
 42, 
 
 410, 
 
 212, 
 
 328, 
 
 397 
 
 90, 
 
 379 
 
 27; 
 
 162, 
 94 
 188, 
 364 
 636, 
 523 
 419 
 
 168 
 600, 
 193, 
 677 
 641 
 513, 
 474, 
 616 
 66 
 283, 
 367 
 489, 
 481 
 180, 
 142 
 299, 
 
 xxxix. 173; 
 
 xxxiv. 233, 
 
 xxxix. 616, 
 
 xxxii, 460; 
 
 xxxii. 431 
 
 xxxvii. 25 
 
 XXX, 166 
 
 xxxi. 662, 
 
 xxxvi. 22, 
 
 xxxvii. 9 
 
 xxxix. 129, 
 
 xxvii. 68; 
 
 xxxi, 646; 
 
 xl, 296, 
 
 xlii. 271 
 
 xxxvii. 130, 
 
 XXXTl. 
 
 xl. 
 xxxvi, 
 
 xxxi. 
 xxxix, 
 
 xxvii, 
 
 XXXV. 
 
 xliii, 
 
 XXXV, 
 
 xxviii. 
 
 xxxiv, 
 
 •yyyii . 
 
 xl. 
 
 xxviii, 
 
 xliii. 
 
 xxxiii, 
 
 xU. 
 
 xxxvii, 
 
 xliii. 
 
 xl, 
 
 XXXV, 
 
 xliii, 
 xxxiii, 
 
 XXXV. 
 
 xxxix, 
 
 xxxii, 
 xl, 
 
 xxxii, 
 xliii, 
 xliii, 
 
 XXXV, 
 
 xxxii, 
 
 xxxvi. 
 
 xlii. 
 
 Oilman v. Schwartz, 
 Gilmore v, Gilmore, 
 Gilmore v, Patterson, 
 Ginn v. Hancock, 
 Given v, Gould, 
 Given v, Marr, 
 
 Glass V, Nichols, 
 Gleason v, Walsh, 
 Glidden v. Chase, 
 Glidden v, Dunlap, 
 Godding V, Brackett, 
 Godfrey v. Codman, 
 Godfrey v. Dwinel, 
 Godwin v. Gregg, 
 Golder v, Foss, 
 Gooch V, Gooch, 
 Gooch V. Holmes, 
 Gooding v. Morgan, 
 
 Gooding v. Morgan, 
 Goodrich v, Buzzell, 
 Goodwin v. Chadwick, 
 Goodwin v, Cloudman, 
 Goodwin v. Sawyer, 
 Gould V, Smith, 
 Gowdy V. Farrow, 
 Gowcn, appellant, 
 Gowen v, Shaw, 
 Gragg V, Frye, 
 Granite Bank v. Ellis, 
 Grant v. Dodge, 
 Gray v. Carleton, 
 Gray v, Garnsey, 
 Gray v, Hutchins, 
 Gray v. Kimball, 
 
 Great Pond M, & A. 
 
 Co, V. Buzzell, 
 Greaton v. Pike, 
 Greely v. Currier, 
 Greene v. Dyer, 
 Green v. Portland, 
 Green v. Walker, 
 Greenleaf v. Hill, 
 Greenleaf v. Hill, 
 
 Grose v. Hilt, 
 Gross V. Jay, 
 Grosvenor v, Tarbox, 
 Groton v, Tallmau, 
 Grover v. Howard, 
 
 Guilford v, Co, Com-, 
 Guptill V. Damon, 
 Gurney v. Tufts, 
 
 xl. 412, Gushee v. Eobinson, 
 
 Condition, 97. 
 
 Contempt of Court, 106. Equity, 202. 
 
 EquityK201, 206. Evidence, 244. Partnership, 435. 
 
 Corporation, 122, 123. Covenant, 147. 
 
 Evidence, 221. 
 
 Assignment, 35. Consti. Law, 101. Divorce, 186. 
 
 Dower, 188. Mortgage, 398. Statutes, 532. 
 Evidence, 237, 238. Privity of Interest, 478. 
 Evidence, 223. Presumption, 477. 
 Execution, 261. 
 
 Exceptions, 252. New Trial, 412. 
 Sale, 507. 
 Evidence, 241. 
 
 Equity, 199. Executors, &o., 272, 
 Execution, 259, 
 BiUs, &c., 73, 74, 76. 
 Vide Appendix. 
 Frauds, Statute of, 289. 
 Actions, &c., 12. Bills, &c., 67. Evidence, 260. 
 
 Voluntary Payment, 574. 
 Actions, &c., 13. 
 
 BiUs, &c. 66, 75, 77. Usury, 671. 
 Witness, 691. 
 
 Deed, 164. New Trial, 410. 
 Prescription, 476. 
 Evidence, 225. 
 Offer to be defaulted, 416. 
 Widow, &c., 587. 
 
 Assumpsit, 40. Joint Tenants, &c., 329. 
 Pleading, 453. Set-off, 522. 
 Bills, &c., 74, 75. Surety, 639. 
 Dower, 189. 
 Liens, 353. 
 
 Execution, 266. Register, &c., 496. 
 Evidence, 224, 227, Seizin, &c., 620, 521,* 
 Constitutional Law, 103, 104, Liquor, 366, 372, 
 
 373. Officer, 423, 424. Practice, 475. 
 
 Evidence, 261, 264. Lease, 846. 
 
 Trespass, 556. 
 
 Abatement, 2, 3. Replevin, 499, 500, 501. 
 
 Executors, &c., 269, 270. Limitations, &c., 858. 
 
 City of Portland, 91, 92. 
 
 Replevin, 499. 
 
 Practice, 474. 
 
 Bills, &c., 66, 74. Husband and Wife, 299. Mar- 
 ried Woman, 381. Payment, 445. 
 
 Corporation, 127, 130. 
 
 Pauper, 444, 
 
 Evidence, 238, Judgment, 333. 
 
 Executors, &c., 271. 
 
 Evidence, 230, 239. Execution, 260, 263, 264. 
 
 Officer, 419. 
 I County Commissioners, 142. 
 
 Appeal, 23. 
 
 Justice of Peace, 336. Liquor, 369. Officer, 423. 
 Replevin of a Person, 501. Warrant, &c., 676. 
 
 Mortgage, 407. 
 
 H. 
 
 xxxi. 246, Hadlock v. Bulfinch, Actions, &c., 9. 
 xli. 246, Haines v. School Dis., 
 
 Readfield, School District, 616,. 617. 
 
TABLE OP CASES. 
 
 xxm 
 
 xl. 578, Hall v. Gilmore, Abatement, 3. Keplevin, 498. 
 
 xxxix. 445, Hall v. Glidden, Evidence, 242. Set-off, 623. 
 
 xxxvii. 411, Hall v. Houghton, Deposition, 181. Witness, 596. 
 
 xli. 574, Hall v. Huckins, Account, 6. Assumpsit, 40. Interest, 325. 
 
 xl. 548, Hall v. Pickering, Condition, 97. Deed, 172, 174. Railroads, 486. 
 xlii. 192, Hall v. Tribou, Evidence, 223. Practice, 474. 
 
 xxxvii. 261, Ham v. Ham, Amendment, 21. Partition, 428. Pleading, 454. 
 
 xlili. 285, Ham t. Ham, Costs, 136. 
 
 xxxix. 216, 263, Ham v. Ham, Exceptions, 255. New Trial, 410, 411. Partition, 
 
 429. 
 xxxviii. 37, Ham y. Sawyer, Damages, 152, 153. Prescription, 476. Town, 552. 
 
 xxxvi 536, Hamilton v. Buck, Liens, 352. 
 xxxvi. 381, Hamlin v. Otis, Actions, &c., 14. 
 
 xxvii. 308, Hammatt v. Emerson, Bills, &c., 66, 76, 77. Deposition, 179. Evidence, 
 
 218, 236, 240, 243, 246, 248. Guaranty, 292. 
 xxxiii. 300, Hammond v. Morrell, Public Lots, 483. 
 
 xU. 177, Hammond T.Woodman,Deed, 168, 177. Evidence, 226, 228. 
 xli. 568, Hancock Bank v. Joy, Husband and Wife, 298, 299. Married Woman, 
 
 381, 383. 
 Hancock v. Fairfield, Evidence, 227. 
 
 Handly v. Call, Evidence, 221. New Trial, 41 1, 413. 
 
 Handly v. Call, Actions, &c., 8. Evidence, 242. New Trial, 411, 
 
 412, 413. 
 Hankerson v. Emery, Bills, &o., 73. Costs, 134. Usury, 572. Witness, 595. 
 Hanley v. Morse, Deed, 162, 163. 
 
 Hanson y. Dexter, Committee, 94. Contract, 109. 
 Hanson, petitioner, Habeas Corpus, 295. Liquor, 365, 367. 
 Evidence, 217, 218. Exceptions, 264. 
 Arbitration, 28, 29, 30. Costs, 135. 
 Actions, &o., 9. Attachment, 44, 48. 
 Deposition, 179. Evidence, 226. Praud, &c., 286. 
 Assignment, 34. Contribution, 120. New Trial, 
 
 413. 
 Amendment, 21. Covenant, 144, 147. Damages, 
 156. Estoppel, 212. Evidence, 237. Practice, 470. 
 508, Hardy y. Sproule, Account, 5. Joint Tenant, &c., 329. Shipping, 529. 
 258, Hardy v. Sproule, Shipping, 527. 
 71, Hardy^y. Sproule, Shipping, 628. 
 
 XXX. 
 
 xxvii, 
 
 XXX, 
 
 xxxvii. 
 
 xxxii. 
 
 xxxvi. 
 
 xxxvi, 
 
 xxxviii. 
 
 xl. 
 
 xxx. 
 
 xxxiv, 
 
 xlii. 
 
 35, 
 9. 
 
 16, 
 287, 
 516, 
 425, 
 456, 
 194, 
 502, 
 407, 
 381, 
 
 Hanson y. Kelley, 
 Hanson y. Webber, 
 Hapgood v. Pisher, 
 Hapgood y. Fisher, 
 Hardy y. Colby, 
 
 xxvii, 625, Hardy y. Nelson, 
 
 xxxui. 
 xxix. 
 xxxi. 
 xxxii. 
 
 xxxviii. 
 xxxvii. 
 
 XXXV. 
 
 xxix. 
 
 xxviii, 
 
 xxix. 
 
 xxxiv. 
 
 xlii. 
 
 xxxi. 
 
 xxxiii. 
 
 xxx, 
 
 xxxvii. 
 
 xlii, 
 
 xxvii. 
 
 xxxviii. 
 
 xxxii. 
 
 xxvii, 
 
 xxix. 
 xxxvi. 
 xxvii, 
 xxxii. 
 
 310, 322, Hardy v, Sproule, Jury, 335. Heplevin, 497. 
 450, Hardy v. Waters, Infant, 311. 
 
 Penalty, 448. 
 
 Contract, 106. 
 495, 496. 
 
 447, 
 313, 
 
 102, 
 366, 
 
 63, 
 196, 
 
 93, 
 585, 
 419, 
 541, 
 244, 
 234, 
 
 45, 
 132, 
 
 85, 
 
 480, 
 419, 
 449, 
 136, 
 
 Harlow v. Young, 
 Harmon v. Salmon 
 
 Falls Man. Co., 
 Harpswell v. Phips- 
 
 burg, 
 Harris y. Hutchins, 
 
 Evidence, 234. Regulations, &o.. 
 
 Exceptions, 252. Pauper, 442. 
 
 Evidence, 221. 
 
 Appeal, 22. 
 Harris v. Sturdivant, Fence Viewers, 278. 
 Harris v. Sturtevant, Vide Appendix. 
 Hart y. Hardy, Pleading, 457. 
 
 Hartshorn v. Eames, Equity, 198, 200, 203, 206. Fraud, 287. 
 Haskell y. Hazard, Review, 603. 
 
 Haskell v. Hilton, Amendment, 22. Assignment, 36. Equity, 203. 
 Haskell y. Matthews, Bills, &o., 68. 
 Haskell y, Putnam, Estoppel, 216. 
 Haskell v. Sawyer, Contract, 114. Damages, 154. 
 Hassan v. Doe, Reward, 504. 
 
 Hastings v, Clifford, Dower, 188, 191, 
 
 Hatch V. Allen, Jurisdiction, 334. Justice of the Peace, 336. 
 
 Practice, 466. 
 
 Poor Debtor, 461, 464. 
 
 Damages, 168. Poor Debtor, 461, 463, 465. 
 Officer, 419. 
 
 xxxiii, 600, 
 
 Hatch V. Lawrence, 
 
 Hatch y. Norris, 
 
 Hathaway v, Larrabee, Attachment, 43. 
 
 Hathaway y. persons 
 
 unknown, Partition, 428. 
 
 Hathaway y. Stone, Costs, 133. Damages, 157. Identity, 301. 
 Debtor, 461, 462. 
 
 Poor 
 
XXIV 
 
 TABLE OP CASES. 
 
 XXXV. 
 
 xxxi. 
 
 xl. 
 
 xl. 
 
 xxix. 
 
 xl. 
 
 XU. 
 
 xlii. 
 
 xxix. 
 
 xl. 
 
 xxxvi. 
 
 xxvii. 
 
 xxxvii. 
 
 203, 
 112, 
 245, 
 162, 
 247, 
 145, 
 488, 
 276, 
 233, 
 181, 
 657, 
 649, 
 181, 
 
 xxxiv. 586, 
 
 XXX. 461, 
 
 xxxvi. 62, 
 
 xxxix. 96, 
 
 xxix, 108, 
 
 , xxxiii. 445, 
 
 xxix. 646, 
 xxxiii. 90, 
 xxxix. 583, 
 xxxix. 231, 
 xliii. 497, 
 xxxvi. 350, 
 
 xxxix. 271, 
 xxxix. 476, 
 
 XXX. 237, 
 
 xxvii. 125, 
 
 xlii. 229, 
 
 xxxiv. 305, 
 
 xxviii. 9, 
 
 xxxiv. 143, 
 
 xxxviii. 620, 
 
 XXX. 367, 
 
 xlii. 572, 
 
 xxxviii. 461, 
 
 xl. 515, 
 
 xli. 585, 
 
 Hayden v. Bartlett, 
 Hayes v. ForskoU, 
 Hayford v. Dyer, 
 Haynes v. FuUer, 
 Haynes v. Haynes, 
 Haynes v. Hay ward, 
 Haynes v. Hayward, 
 Haynes v. Hunnewell, 
 Haynes v. Leland, 
 Haynes v. Howe, 
 Haynes v. Young, 
 Hazzard v. Haskell, 
 Head v. Goodwin, 
 
 Head v. Merrill, 
 Heald v. Cushman, 
 Heald v. State, 
 Hearn v. Waterhduse, 
 Heath, v. Whidden, 
 
 Hemingway v. Ma- 
 
 chias, 
 Herbert v. 
 Herbert v. 
 Hermon v, 
 Herrick v. 
 
 XXX. 
 
 XXXV. 
 
 XXX. 
 
 xxvii. 
 
 xlii. 
 
 xxxiv. 
 
 xxxiii. 
 
 xxxii. 
 
 xxxi. 
 
 170, 
 143, 
 220, 
 362, 
 
 89, 
 101, 
 233, 
 
 67, 
 143,' 
 
 xxxiv. 20, 
 
 xxix. 47, 
 
 xxxii. 169, 
 
 xxxvi. 326, 
 
 XXX. 162, 
 
 xxvii. 441, 
 
 xxxviii. 256, 
 
 xxxix. 135, 
 
 Ford, 
 Ford, 
 Co. Com., 
 Osborne, 
 
 Herriman v. Stowers, 
 Herriu v. Libbey, 
 
 Hersey v. Verrill, 
 Hersom's case, 
 
 Hesseltine v. Stook- 
 
 •well, 
 Hewett V. Bowley, 
 Hey wood v. Hey wood, 
 Higgiiis V. Wasgatt, 
 Hill V. Baker, 
 HUl V. Fisher, 
 
 HiH V. Fiske, 
 Hill V. Jordan, 
 Hill V. Leadbetter, 
 Hill V. Mason, 
 Hill V. More, 
 Hill V. Nash, 
 
 Damages, 153. Exceptions, 254. 
 
 Arbitration, 27, 28, 30. Partnership, 432. 
 
 Equity, 199. 
 
 Bond, 82, 83, 84. Waiver, 676. 
 
 Libel, &c., 347. 
 
 Contract, 118. 
 
 Contract, 114. 
 
 Agency, 17. Corporation, 128. 
 
 Libel, &c., 347, 348. 
 
 Deposition, 180. Insurance, 320, 323. 
 
 Covenant, 147. Deed, 169, 172. Easement, 195. 
 
 Abatement, 4. 
 
 Mortgage, 405, 407. Partnership, 434. Pleading, 
 
 451. Sale, 509. Trover, 559. 
 Trustee Process, 661, 666. 
 Replevin, 600. 
 Statutes, 634. 
 
 Parol Kepresentation, 426. 
 Amendment, 22. Covenant, 148. Default, 178. 
 
 Pleading, 463. Practice, 468, 475. Venue, 572. 
 
 Tax, 546. 
 
 BiUs, &c., 66, 76, 77. 
 
 Law and Fact, 343. 
 
 County Commissioners, 142, 
 
 Amendment, 19. Exceptions, 265. Pleading, 452. 
 
 Assessors, 34. 
 
 Contract, 110. Damages, 155. Deposition, 181. 
 
 Fraud, &c., 286. 
 Evidence, 228. Exceptions, 266, 268. Practice, 470. 
 Jurisdiction, 334. Justice of the Peace, 336, 337. 
 
 Liquor, 372. Municipal Court, 408. 
 
 Confusion of Goods, 98. Logs, &c., 374. 
 Arbitration, 26. 
 Contract, 120. 
 Deed, 175, 176. 
 Abatement, 2. Mills, 387. 
 
 Actions, &c., 11. Contract, 113. Equity, 198. 
 Tender, 547. 
 
 Hillman 
 Hilton V 
 Hilton V. 
 Hinckley 
 Hinckley 
 Hinkley 
 Hobbs V. 
 Hobbs V. 
 Hobbs V. 
 
 V. Wilcox, 
 . Houghton, 
 
 Longley, 
 
 V. Arey, 
 V. Penobscot, 
 V. GiUighan, 
 
 Burns, 
 
 Clements, 
 
 Parker, 
 
 Equity, 207. 
 
 Mortgage, 393. Trespass, 654. 
 
 Shipping, 530. 
 
 Tax, 546. 
 
 Estoppel, 213. Mortgage, 395, 396, 397, 402, 403. 
 
 Deed, 166. Equity, 199. Evidence, 235. New 
 
 Trial, 412. 
 Sale, 611. 
 
 Bills, &c., 67. Lord's Day, 376, 
 Exceptions, 256. 
 
 Contract, 109. Payment, 445. 
 Lord's Day, 375, Way, 683, 
 Partnership, 435. 
 
 Hobson V. Watson, 
 Hodgdon v. Chase, 
 Hodgdon v. Chase, 
 Hodgdon v. Wight, 
 
 Hodge v,,Swazey, 
 Holbrook v. Foss, 
 Holbrook v. Thomas, 
 Holden v. Barrows, 
 
 Agency, 15, 16 
 Indictment, 304 
 Evidence, 244. 
 Review, 603. 
 Tax, 544. 
 Estoppel, 214. 
 Practice, 470 
 
 Partition, 430. Pleading, 456. 
 Real Action, 489. 
 Attorney, '&c., 52. Poor Debtor, 463. 
 Limitation, &c., 362. 
 Contract, 106. 
 Evidence, 240. Presumption, 477. Sale, 512. 
 
 Tax, 546, 546. 
 Costs, 132, 134. Writs, &c„ 598. 
 Bankruptcy, 58. Judgment, 331. 
 Mortgage, 399. 
 Evidence, 219, 230. Practice, 468. 
 
TABLE OF CASES. 
 
 xxy 
 
 Exxviii. 
 
 472, 
 
 xxxix. 
 
 157, 
 
 xxxi. 
 
 73, 
 
 xxix. 
 
 76, 
 
 xxxix. 
 
 164, 
 
 xliii. 
 
 445, 
 
 xxxix. 
 
 224, 
 
 xxxix. 
 
 668, 
 
 XXXV. 
 
 78, 
 
 xxxix. 
 
 267, 
 
 XXX vii. 
 
 72, 
 
 xxviii. 
 
 215, 
 
 XXXV. 
 
 411, 
 
 XXXV. 
 
 620, 
 
 xxxi. 
 
 346, 
 
 xliii. 
 
 322, 
 
 xxxiii. 
 
 470, 
 
 xxviii. 
 
 97, 
 
 xxxi. 
 
 546, 
 
 xxxi. 
 
 420, 
 
 xxxi. 
 
 552, 
 
 xxviii. 
 
 241, 
 
 xxxiv. 
 
 15, 
 
 xli. 
 
 340, 
 
 xxxvi. 
 
 115, 
 
 xli. 
 
 445, 
 
 xxxviii. 
 
 350, 
 
 xxxiv. 
 
 566, 
 
 xxvii. 
 
 242, 
 
 xxxix. 
 
 506, 
 
 XXXVl. 
 
 423, 
 
 xxxiv. 
 
 166, 
 
 xU. 
 
 84, 
 
 xxxiv. 
 
 339, 
 
 xxvii. 
 
 106, 
 
 xxxviii. 
 
 1.33, 
 
 xl. 
 
 459, 
 
 xxxi. 
 
 192, 
 
 xl. 
 
 . 28, 
 
 xUi. 
 
 , 565, 
 
 xxxvii. 
 
 . 363, 
 
 xxxvii. 
 
 333, 
 
 xxxiv. 
 
 29, 
 
 xxxviii. 
 
 195, 
 
 xl. 
 
 187, 
 
 xxxiii. 
 
 159, 
 
 XXX vi. 
 
 501, 
 
 xxxix, 
 
 . 237, 
 
 xlii, 
 
 , 182, 
 
 xxix. 
 
 . 467, 
 
 XXX. 
 
 190, 
 
 XXXV, 
 
 . 520, 
 
 xxxiii. 
 
 , 85, 
 
 xxxii. 
 
 .277. 
 
 xxxiv. 
 
 126, 
 
 XXXV. 
 
 , 189, 
 
 xxxix 
 
 . 608, 
 
 Holden t. Brewer, 
 
 Holmes v. Porter, 
 
 Holmes v. Sprowl, 
 
 Holt V. Barrett, 
 
 Holt V. Kirby, 
 
 Holt V. "Westcott, 
 
 Hooper v. Taylor, 
 
 Hopkins v. Fowler, 
 
 Hopkins v. Megquire, Evidence, 237. 
 
 Houghton V. Lyford, Damages, 157. 
 
 Arbitration, 27. Pauper, 437, 438, 441. 
 
 Partnership, 435. 
 
 Abatement, 2. Joint Tenants, 328. Mortgage, 405. 
 
 Appeal, 23. 
 
 Arbitration, 32. Trustee Process, 565. 
 
 Vide Appendix. 
 
 Evidence, 241, 242. 
 
 Practice, 473. 
 
 Set-off, 522. 
 
 Justice of the Peace, 336. Poor 
 
 Debtor, 464, 466. 
 
 Houghton v.Houghton.Arbitration, 29. Law and Fact, 343. Set-off, 522. 
 Houghton V. Stowell, Amendment, 20. Usury, 671, 
 "" " ' ' Pauper, 436, 437. 
 
 Attachment, 41, 49. Equity, 198. Execution, 266. 
 
 Contract, 116. Evidence, 249. Verdict, 674. 
 
 Way, 680, 686. 
 Hovey v. Woodward, Estoppel, 214. Lottery Lands, 376. 
 Howard v. Grover, New Trial, 410. Surgeon, 541. 
 
 Execution, 260, 263, 264. 
 
 Error, 210. 
 
 Guardian and Ward, 293. 
 
 Bankruptcy, 58, 59. Damages, 151. Liens, 350, 
 361. Officer, 421. Replevin, 498, 499. 
 
 Assignment, 37. Execution, 259. Judgment, 330. 
 
 Vide Lovett v. Pike. 
 
 Amendment, 22. Assumpsit, 39. Equity, 198, 
 201. Mortgage, 392, 396, 400, 401. tax, 545. 
 
 Assumpsit, 39. 
 
 Limitations, 360, 361. Pleading, 452. 
 
 Amendment, 20. BiUs, &c., 67. Deed, 165. Exe- 
 cution, 261, 264. Married Woman, 382. 
 
 Actions, &c., 6. Bills, &c., 66. Fraud, &c., 284. 
 
 Houlton V. Lubec, 
 Houston V. Jordan, 
 Hovey v. Luce, 
 Hovey v. Mayo, 
 
 Howard v. Grover, 
 Howard v. Hill, 
 Howard, petitioner, 
 Howe V. Handley, 
 
 Howe V. Newbegin, 
 Howe V. Pike, 
 Howe V. RusseU, 
 
 Howe V. Kussell, 
 Howe V. Saunders, 
 Howe V. Wildes, 
 
 Hoyt V. Bradley, 
 Hubbard v. A. & K. 
 
 R. E Co., 
 Huckins v. Cushing, 
 Huckins v. Straw, 
 Hudson V. Carman, 
 Hudson V. Martin, 
 Huff V. Nickerson, 
 Hughes V. Decker, 
 Hull T. Noble, 
 
 Humphreys v. Swett, Actions, &c,, 9. 
 HuuneweU v. Hobart, New Trial, 412. 
 Hunnewell v. Hobart, Trespass, 656. 
 Hunt V. HaU, 
 Hunt V. Hunt, 
 Hunt V. Perley, 
 Hunt V. Rich, 
 Hunt V. Roberts, 
 Hunter v. Perry, 
 Huntington v. HaU, 
 Huntress v. Tiney, 
 Hurd V. Coleman, 
 
 Evidence, 223. 
 
 Liens, 354, 356. Logs, &c., 375. 
 
 Real Action, 488. 
 
 Corporation, 130, 131. Evidence, 218, 238, 240. 
 
 Guardian and Ward, 294. 
 
 Actions, &c., 6. Assumpsit, 38. 
 
 Distribution, &c., 185. Heirs, 297. 
 
 Equity, 207, 208, 209. 
 
 Bankruptcy, 58, 60. 
 
 Practice, 473. 
 
 Waste, 577. 
 Heirs, 296, 297. 
 Ministerial Fund, 390. 
 
 Deed, 171. Evidence, 251. Trespass, 554, 555. 
 Equity, 199. 
 Auction, &c., 52, 53. 
 Bills, &c., 73. Sale, 511. 
 Evidence, 230. Execution, 265. 
 Limitations, &c., 360. Mortgage, 396, 403. Pay- 
 ment, 446. 
 Actions, &c., 8. City of Portland, 91. County, 137. 
 Actions, &c., 8. 
 
 Huse V. Cumb. Co., 
 
 Hussey v. Collins, 
 
 Huston V. Jordan, Bond, 81. 
 
 Huston V. Young, Bills, &c., 77. 
 
 Hutchings v. Buck, Contract, 109. 
 
 Hutchings v. Van- 1 Deserter, 182. 
 Bokkelen, ) son, 501. 
 
 Hutchinson v. Chad- 
 bourne, Evidence, 217, 219. Rules of Court, 506 
 
 Hutchinson v. Chase, Joint Tenants, &c^ 328. 
 
 Evidence, 224, 249. 
 
 Practice, 470. 
 
 Officer, 417. Replevin of a per- 
 
XXVI 
 
 TABLE OP CASES. 
 
 xxix. 91, Hutchinson T. Eddy, Bills, &e., 77. Trustee Process, 566. 
 XXX. 450, Hutchinson v. Green- 
 bush, Execution, 264. 
 
 I. 
 
 xxxiv. 232, 
 
 xxxi. 506, 
 
 xxxT. 497, 
 
 xxxvi. 149, 
 
 xxxi. 536, 
 
 Ingalls V. Fiske, ' Payment, 445. 
 Inhab'ts of Waterville, 
 
 petitioners, 
 Insane Hospital v. 
 
 Belgrade, 
 Ireland v. Todd, 
 Irish V. Cutter, 
 
 Certiorari, 88. 
 
 Insane Persons, 313, 314. 
 
 Attorneys, &c., 61. 
 
 BiUs, &c., 65, 74. Guaranty, 293. 
 
 J. 
 
 xl. 
 
 381, 
 
 yyxviii. 
 
 185, 
 
 xxix. 
 
 490, 
 
 xxxviii. 
 
 85, 
 
 xxix. 
 
 266, 
 
 xxxix. 
 
 132, 
 
 xxxi. 
 
 573, 
 
 xxxvii. 
 
 236, 
 
 xliii. 
 
 287, 
 
 xxxi. 
 
 318, 
 
 XXX. 
 
 438, 
 
 xxxiii. 
 
 250, 
 
 xlu. 
 
 247, 
 
 xxxiv. 
 
 45, 
 
 xlii. 
 
 246, 
 
 xxvii. 
 
 400, 
 
 xxxix. 
 
 9, 
 
 xxxii. 
 
 110, 
 
 xliii. 
 
 242, 
 
 xxxi. 
 
 28, 
 
 XXXV. 
 
 467, 
 
 XXXV. 
 
 291, 
 
 xxxii. 
 
 424, 
 
 XXXV. 
 
 427, 
 
 xxxii. 
 
 230, 
 
 xxix. 
 
 404, 
 
 XXXV. 
 
 137, 
 
 xh. 
 
 254, 
 
 ■a-a-n. 
 
 402, 
 
 XXXV. 
 
 638, 
 
 XXX. 
 
 465, 
 
 xxix. 
 
 351, 
 
 xxxvii. 
 
 320, 
 
 xl. 
 
 130, 
 
 xxxviii. 
 
 429, 
 
 xli. 
 
 552, 
 
 xxxvii. 
 
 , 376, 
 
 xxxii. 
 
 , 472, 
 
 xxxviii. 
 
 164, 
 
 xxxviii. 
 
 423, 
 
 xl, 
 
 . 317, 
 
 Jackson v, Pord, Mortgage, 392, 404. 
 
 Jackson v. Jones, Exceptions, 254. 
 
 Jackson v, Myriok, Estoppel, 213. 
 
 Jackson v. Nason, Evidence, 219, 230, 233. Judgment, 332, 333. 
 
 Jackson v. "Woodman, Evidence, 238. Execution, 264, 265. 
 
 Jacobs V. Benson, 
 Jay Bridge v. Wood- 
 man, 
 Jeffrey v. Grant, 
 Jellison v, Goodwin, 
 Jenks V. Matthews, 
 Jenness v. True, 
 Jewell V. Brown, 
 Jewell V. Gage, 
 Jewett V. Dockray, 
 Jewett V, Guild, 
 Jewett V, Preston, 
 Jewett V, nines, 
 Jewett V, Wadleigh, 
 Jewett V. Whitney, 
 
 Evidence, 228. 
 
 Corporation, 123. 
 
 Contract, 117. Damages, 165. 
 
 Libel, &c., 348, 349, 350. 
 
 Actions, &c., 10. Contract, 109, 113, 
 
 Contract, 112, 116. Guaranty, 292. 
 
 Error, 210, 211. Practice, 475. 
 
 New Trial, 413. 
 
 Assignment, 34. Officer, 421. Witness, 694. 
 
 Mortgage, 401. 
 
 Actions, &c., 6. Bankruptcy, 68. Mortgage, 405. 
 
 Evidence, 228. Poor Debtor, 459, 460, 464. 
 
 Attorneys, &o., 50. Execution, 267. 
 
 Damages, 153. Execution, 262, 263. Trespass, 
 
 Johnson v. Candage, 
 
 554, 565. 
 Equity, 203, 206. Mortgage, 393. 
 Johnson v. Knowlton, Evidence, 222. Practice, 473. 
 Johnson v. Pike, Liens, 353, 366, 
 
 Johnson v- Shields, Dower, 188, 191, 
 Johnson v, StUhngs, Married Woman, 382, 
 Johnson v, Whidden, Law and Fact, 344, Practice, 472, 
 Johnson v, Wingate, Agency, 16. Shipping, 526. 
 
 Witness, 693. 
 
 Jones V. EUiott, Execution, 259. Justice of the Peace, 337. 
 
 Jones V. Fletcher, Liquor,'365, 368, 371. Officer, 424. 
 Jones V. Knowles, Bills, &c., 77. Contract, 111. Evidence, 233. 
 Jones V. Lowell, Abatement, 2. Damages, 162. Joint Tenants, 
 
 329. Pleading, 451. Witness, 592. 
 
 Damages, 159. Mills, 390. 
 
 Bond, 83, 84. Equity, 207, 208, 209. 
 
 Jones V. Phillips, 
 
 Jones V. Bobbins, 
 
 Jones V. York & Cumb. 
 K. R. Co., 
 
 Jordan v. Fay, 
 
 Jordan v. Otis, 
 
 Jordan v. Mayo, 
 
 Jordan v. Muzzey, 
 
 Jordan, petitioner, 
 
 Jordan v. School Dis- 
 trict in Lisbon, School District, 515. 
 
 Jordan v. Woodward, Injunction, 312. 
 
 Jordan v. Woodward, Constitutional Law, 102 
 
 See Bigelow v. York & Cumb. Railroad Co. 
 
 Equity, 207. 
 
 Deed, 177. Evidence, 228. 
 
 Deed, 175, 177, 178, Water Power, 577. 
 
 Deed, 172, 
 
 County Commissioners, 140. 
 
 Mills, 386. 
 
TABLE OP OASES. 
 
 XXVll 
 
 xxxvii. 276, 
 xxxvii. 466, 
 xxxvii. 367, 
 xxix. 235, 
 xxxix. 220, 
 
 Jordan v. Young, 
 Jose V. Baker, 
 Jose V. Moulton, 
 Joy V. Phillips, 
 Junkins v. Union 
 Scliool District, 
 
 Shipping, 525, 626, 528, 629. Witness, 595. 
 Order, 424, 425. 
 
 Actions, &c., 11. School Teacher, 517. 
 Actions, &c., 7. 
 
 School District, 616. 
 
 K. 
 
 xliii. 
 
 501, 
 
 xxviii. 
 
 326, 
 
 xxvii. 
 
 237, 
 
 xxviii. 
 
 255, 
 
 xxxi. 
 
 666, 
 
 XXXV. 
 
 357, 
 
 xxxiv. 
 
 198, 
 
 xlii. 
 
 339, 
 
 xxxvi. 
 
 19, 
 
 XXX. 
 
 327, 
 
 xxxviii. 
 
 42, 
 
 xxxi. 
 
 162, 
 
 xxviii. 
 
 374, 
 
 xxxiv. 
 
 360, 
 
 xxxi. 
 
 470, 
 
 xxxiv. 
 
 366, 
 
 Keith V. Pinkham, Bailment, 55, 
 Keith V. Tuttle, Liquor, 366. Lord's Day, 375 
 
 Kelley v. Smith, Vide Smith v. KeUey. 
 
 Kellogg V. St. George, Contagious Sickness, 105. 
 Kempton v. Stewart, Arbitration, 26, 30. 
 ~ Arbitration, 25, 30. 
 
 Liens, 352. 
 Attachment, 42, 43. 
 
 xxxviii. 135, 
 
 xliii. 423, 
 
 xxxiv. 351, 
 
 xxxviii. 435, 
 
 xxviii. 477, 
 
 xl. 589, 
 
 xxxviii. 219, 
 
 XXXV. 255, 
 
 xxxiv. 84, 
 xxxiii. 114, 
 
 xxix. 508, 
 xxxiv. 299, 
 
 XXX. 452, 
 xxxiii, 327, 
 
 xxxviii. 513, 
 
 XXX. 244, 
 
 XXX. 204, 
 
 xxxiv. 208, 
 
 xxxviii. 55, 
 
 XXX. 552, 
 xxxviii. 246, 
 
 xxxii. 148, 
 
 xxviii. 160, 
 
 xlii. 160, 
 
 Arbitration, 26, 31. Interest, 324. 
 
 Covenant, 148. Landlord, &c,, 339, 340. Lease, 345. 
 
 Bills, &o., 67. 
 
 Officer, 419, 421. 
 
 Deed, 169. 
 
 Kendall v. Bates, Arbitration, 25, 30. Executors, &c., 268. 
 Kendall v. Polsom, 
 
 Kendall v. L:ving, Attachment, 42, 43. Register, &c., 495. 
 Kendall v. Lewiston 
 
 W. P. Co., 
 Kendall v. Moore, 
 Kendrick v. Crowell, 
 Kendrick v. Smith, 
 Ken. Perry Co. v. 
 
 Bradstreet, 
 Ken. & Port. B. R. Co. 
 
 V. Jarvis, Contract, 108. Corporation, 123, 130 
 
 Ken. &Port. R.R. Co. 
 
 V. Kendall, Corporation, 122, 123, 126. 
 
 Ken. & Port. R. R. Co. 
 
 V. Palmer, Corporation, 130. 
 
 Ken. &Port.R.B. Co. 
 
 V. Waters, Corporation, 130. Evidence, 227. 
 
 Ken. & Port. R. R. Co. 
 
 V. White, Exceptions, 254. 
 
 Kennedy v. Philbrick, Attachment, 42. 
 Kennedy v. Pike, Evidence, 239. 
 Kennedy v. Wright, Penalty, 448. 
 
 ~ Libel, &c., 348, 350. 
 
 New Trial, 412. 
 
 Attachment, 42. Execution, 262. 
 New Trial, 412. Town, 560. 
 
 Kent V. Bonzey, 
 Kidder v. Plagg, 
 Kidder v. Orcutt, 
 Kimball v . Bath, 
 Kimball v. Ken. & 
 
 Port. R. R. Co., 
 Kimball v. True, 
 King V. Robinson, 
 Kingsbury v. Taylor, 
 Kinnear v. Lowell, 
 Kirkland v. Bradford, Pauper, 442. 
 Kittredge v. McLaugh 
 
 lin, 
 Kittredge v. McLaugh. 
 
 lin, 
 Knapp V. Clark, 
 Knight V. Loomis, 
 Knight V. Nichols, 
 Knowles v. At. & St. 
 
 L. R. R. Co., 
 Knowlton v. Homer, 
 Knowlton v. Reed, 
 
 County Commissioners, 140. Railroads, 485. 
 
 Damages, 150. Replevin, 499. 
 
 Error, 211. Guardian and Ward, 293, 294. 
 
 Sale, 511. 
 
 Estoppel, 214. Mortgage, 398. 
 
 Bankruptcy, 60, 61. 
 
 Costs, 133, 135. Interest, 325. 
 
 Amendment, 20. Limitations, &c., 357. Mills, 387. 
 
 Executors, &c., 267, 271. 
 
 Deposition, 180, 181. Mortgage, 406. 
 
 Bailment, 54. 
 
 Arbitration, 25, 28. Waiver, 575. 
 Joint Tenants, &c., 328. Partnership, 431, 432, 
 433. Part Owners, 436. 
 Knowlton v. Sanford, Law and Fact, 344. Shipping, 527, 629, 531. 
 Knox V. Chadbourne, Attachment, 41. 
 
 Knox V. Chaloner, Const. Law, 103. Mills, 385, 386. Nuisance, 415. 
 Prescription, 476. 
 
"XXVUl 
 
 TABLE OP CASES. 
 
 L. 
 
 xxxviii. 
 
 482, 
 
 xxxiv. 
 
 316, 
 
 xl. 
 
 343, 
 
 xliii. 
 
 463, 
 
 xxxiii. 
 
 141, 
 
 sxxi. 
 
 350, 
 
 XXX. 
 
 466, 
 
 xxxiii. 
 
 239, 
 
 xlii. 
 
 327, 
 
 xxxvi. 
 
 155, 
 
 xl. 
 
 125, 
 
 xxxiii. 
 
 477, 
 
 XXX. 
 
 467, 
 
 xxjav. 
 
 477, 
 
 xxxiii. 
 
 100, 
 
 xxxiv. 
 
 79, 
 
 xxxvi. 
 
 440, 
 
 xxxii. 
 
 97, 
 
 xlii. 
 
 202, 
 
 xl. 
 
 120, 
 
 xxxvii. 
 
 69, 
 
 xxxii. 
 
 621, 
 
 xxxviii. 
 
 632, 
 
 XXXV. 
 
 100, 
 
 xxxix. 
 
 484, 
 
 xl. 
 
 386, 
 
 xli. 
 
 4-i8, 
 
 XXX. 
 
 636, 
 
 xxxix. 
 
 355, 
 
 xxxii. 
 
 253, 
 
 xxxiv. 
 
 181, 
 
 XXXV. 
 
 118, 
 
 XXX. 
 
 638, 
 
 xxxii. 
 
 399, 
 
 xxviii. 
 
 87, 
 
 xxxviii. 
 
 80, 
 
 xxxvi. 
 
 265, 
 
 xxxii. 
 
 159, 
 
 xxxii. 
 
 180, 
 
 xU. 
 
 448, 
 
 xxxii. 
 
 90, 
 
 xxxvii. 
 
 230, 
 
 xxxii. 
 
 492, 
 
 XXX. 
 
 19, 
 
 xliii. 
 
 144, 
 
 xxxvi. 
 
 264, 
 
 xxix. 
 
 429, 
 
 xxxvii. 
 
 359, 
 
 YYTriv. 
 
 166, 
 
 xxixi 
 
 664, 
 
 xxxiv. 
 
 547, 
 
 xlii. 
 
 349, 
 
 xxxviii. 
 
 179, 
 
 Labaree v. Brown, 
 Ladd V. Dillingham, 
 Lake v. Ellsworth, 
 Lakeman v. Pollard, 
 Lambard v. Pike, 
 Lambard v. Rogers, 
 Lancey v. Bryant, 
 Lander v. School Dis- 
 trict in Smithfield, 
 Lane v. Crosby, 
 
 Forcible Entry, &e., 283. 
 
 Exceptions, 254. Liquor, 365. 
 
 Town, 552. 
 
 Contract, 111. New Trial, 412. Practice, 469. 
 
 Attachment, 43, 4_4. Liens, 361, 356. 
 
 Poor Debtor, 461.* 
 
 Law and Fact, 344. Libel, &c., 349. Town, 652. 
 
 Justice of the Peace, 336. 
 
 Lang v. Whitney, 
 Langley y. Adams, 
 Langley v. Bartlett, 
 Langley v. Palmer, 
 
 School District, 514. 
 
 Jurisdiction, 334. 
 Recognizance, 492. 
 
 Guardian and-Waid, 294. Liens, 354. 
 
 Attachment, 44. Bail, 53. 
 
 Bills, &c., 66. 
 
 Bills, &c. 70. 
 Larrabee v. Larrabee, Deed, 166. Evidence, 222, 236. Fraud, &c., 285. 
 Larrabee v. Larrabee, Partition, 430. Practice, 466. 
 Larrabee v. Lumbert, Evidence, 231. Landlord, &c, 339, 340, 341. Real 
 
 Action, 488. 
 Larrabee v. Lumbert, Real Action, 489. 
 
 Larrabee v. Lumbert, Costs, 133. Payment, 447. TJsury, 572. 
 Larrabee v. Searsport, Notice, &c., 415. Practice, 474. 
 Larrabee v. Woodman, Bond, 84. 
 Larry v. Lunt, Way, 580, 586. 
 
 Law V. Payson, Evidence, 247. Fraud, &c., 285. 
 
 Lawrence v. G-uUifer, Contract, 118. Damages, 153,' 156. 
 La%vrencev.Mt.Vernon,Evidence, 222. Law & Fact, 344. Way, 582, 585. 
 Lawton v. Bruce, ViUe Appendix. 
 
 Leathers v. Ship- 
 builders Bank, Bank, 57. 
 Leavitt v. Bangor, Costs, 134. Proohein Ami, 481, 482. 
 LeBarron v. Redman, Witness, 596. 
 Ledden v. Hanson, Poor Delator, 459, 460. 
 Lee V. Oppenheimer, Contract, 108, 109. 
 Lee V. Oppenheimer, Exceptions, 253. Officer, 420. 
 Leightou v. Atkins, Bankruptcy, 58. 
 Leighton v. Chapman, Probate Court, 480. 
 Leighton v. Leighton, Equity, 198. 
 Leighton v. Reed, Attachment, 45. 
 Leisherness v. Berry, Exceptions, 254. Liens, 364. 
 Leonard v. Wildes, Bills, &c , 65, 80. Interest, 324. Partnership, 
 433. Witness, 695. 
 
 Evidence, 230. 
 
 Practice, 475. 
 
 Bankruptcy, 59. 
 
 Levant v. Rogers, 
 Levant v. Varney, 
 Lewis V. Brown, 
 
 Lewis V. Eastern Bank, Corporation, 127. 
 
 Lewis V. Ross, 
 Lewiston v. Auburn, 
 Lewiston v. Co. Com. 
 
 of Lincoln, 
 Lewiston F. Bank v. 
 
 Leonard, 
 Libbey v. Cowan, 
 Libbey v. Cushman, 
 Libbey v. Libbey, 
 Libbey v. Staples, 
 
 Amendment, 21. 
 Vide Appendix. 
 
 Evidence, 226. 
 Witness, 594. 
 Cotirts in general, 143. 
 
 Certiorari, 88. Way, 580. 
 
 Bills, &c., 71. Estoppel, 216. 
 Bills, &c., 78, 80. Practice, 476. 
 Attachment, 41. Mortgage, 405. 
 Heirs, 297. 
 
 Husband and Wife, 301. Landlord, &c., 
 Lease, 346. 
 
 Lime Rock Bank v. 
 
 Macomber, Bank, 65. 
 
 LimeR.Bankv.Mallett,Surety, 539, 540. 
 LimeR.Bankv.Mallett.Surety, 539, 640. 
 Lincoln Academy v. 
 
 Newhall, Limitations, &c., 363. 
 
TABLE OF CASES. 
 
 XXIX 
 
 xsviii. 275 
 
 xxxi. 345, 
 
 xlii. 456, 
 
 XXX. 291, 
 
 XXIX. 
 
 xxxiii. 
 
 XXXV. 
 
 xxxviii. 
 
 XXXV. 
 
 xxxiv. 
 xxxiv. 
 
 xxxii. 
 
 xxix. 
 xxxiii. 
 
 XXX. 
 
 xxxii. 
 xxviii. 
 
 xxxi. 
 
 xliii. 
 xxxiii. 
 
 XXXV. 
 
 xxxvi. 
 
 xl. 
 
 xxxvi. 
 
 xxix. 
 
 169, 
 530 
 150, 
 188, 
 214, 
 
 645, 
 367, 
 214 
 310, 
 662, 
 192, 
 390 
 180. 
 134, 
 264 
 428, 
 184, 
 464 
 204, 
 108 
 196 
 
 xxxiii. 457, 
 xliii. 299, 
 
 xxxiv. 332, 
 xxvii. 179, 
 
 XXXV. 63, 
 xlii. 429, 
 
 xliii. 
 
 xli. 
 
 xxxvii. 
 
 xxxiii. 
 
 xxxvii. 
 
 xlii. 
 
 XXXUl. 
 
 xli. 
 
 xli. 
 
 xxxvii. 
 
 xxxii. 
 
 xxxviii. 
 
 xxxviii. 
 
 XXXV. 
 
 xxxviii. 
 
 xU. 
 
 xU. 
 xxxix. 
 
 xxvii. 
 xxxiii. 
 xxxix. 
 xxxiii, 
 
 xxxii. 
 
 xxvii. 
 
 290, 
 
 127, 
 
 208, 
 
 350, 
 
 177, 
 
 497, 
 
 282, 
 
 414, 
 
 340, 
 
 248, 
 
 196, 
 
 27, 
 
 36, 
 
 VS, 
 
 92, 
 
 282, 
 
 605, 
 
 475, 
 392, 
 296, 
 197, 
 28, 
 31, 
 576, 
 149, 
 
 Deed, 163. Evidence, 236, 244. 
 Evidence, 231. 
 
 Judgment, 333. 
 
 Lincoln v. Edgecomb, Deed, 169. 
 
 Lincoln v. Edgecomb, Seizin, &o., 519. 
 
 Lincoln v. Pitch, Bank, 67. Evidence, 223. Witness, 591. 
 
 Lincoln v. WMte, Attachment, 41. Evidence, 231. Mortgage, 396, 
 
 397. Partnership, 435. 
 Lincoln v. Wilder, Deed, 170, 176. 
 Linscott V. Buck, Trusts, 569. 
 Linscott v. Trask, Evidence, 232. Exceptions, 264. 
 Linscott V. Trask, Evidence, 246. 
 Lithgow T. Moody, Eorcible Entry, &o., 283. Landlord, &e., 339, 340, 
 
 341. 
 Little T- Fossett, Bailment, 64. 
 
 Little V. Hobbs, Condition, 97. Contract, 108, 109, 113. 
 
 Little V. Watson, Condition, 97. Grants, &c., 292. Treaties, 652, 563. 
 Littlefield v.Biddeford, Way, 581. 
 Littlefield v. Cole, Probate Court, 481. 
 Littlefield v. Crocker, Dower, 191. 
 Littlefield v. Getchell, Covenant, 146. 
 Littlefield v.Littlefield, Deed, 169, 175. 
 Littlefield v. Maxwell, Easement, 194. 
 Littlehale v. Maberry, Bills, &c., 70. 
 Livermore v. Claridge, Payment, 447. 
 Liverraore v. Phillips, Pauper, 437. 
 Lock V. Johnson, Trustee Process, 561. 
 
 Long V. Hammond, Bankruptcy, 60, 62. 
 Long V. Rhodes, Arbitration, 31. 
 
 Longfellowv.Quimby, Certiorari, 88. County Commissioners, 138. Dam- 
 ages, 152, 153. Evidence, 221, 227. Joint Ten- 
 ants, &c,, 327. Tax, 644. Trespass, 653. 
 Longfellowv.Quimby, Damages, 152. Tax, 644, 646. Way, 585. 
 Loomis V. Pingree, Deed, 162, 169. Heirs, 297. Joint Tenants, &c., 
 327, 328. Tax, 546, 646. 
 
 Pence Viewers, 278. 
 
 Courts in general, 143. Debt, 169, Eecogui- 
 zance, 492. Record, 493, 494. 
 
 Officer, 421. 
 
 Actions, &c., 13. 
 Evidence, 224. 
 Trespass, 566. 
 
 Judgment, 333. 
 
 Bills, &c., 66. Evidence, 233. 
 
 Deposition, 179. Evidence, 226, 244. 
 
 Amendment, 20- ~ 
 
 Complaint, 95, 96, 
 
 Liens, 366. 
 
 Fence, 276, 277. Trespass, 653. 
 
 Jurisdiction, 334. 
 
 Damages, 161, 163. Evidence, 229, 
 
 Mortgage, 396, 
 
 Attorneys, &c., 51, Contract, 108, 
 
 Poor Debtor, 457, 
 
 Bills, &c., 65. 
 
 Evidence, 242. 
 
 Dower, 192, 193. 
 
 Pleading, 452. .Witness, 593. 
 
 Longley v. Hilton, 
 Longley v. Vose, 
 
 Lord V. Bicknell, 
 Lord T. Chadbourne, 
 
 Lord v. Cleaves, 
 Lord T. Moody, 
 Lord V. Moore, 
 Lord V. Pierce, 
 Lord T. State, 
 Lord V. Woodward, 
 Lord v. Wormwood, 
 Lovejoy v. Albee, 
 Lovett V. Pike, 
 Low V. Allen, 
 Low V. Hutchinson, 
 Lowe V. Dore, 
 Lowell V. Gage, 
 Luce V. Doane, 
 Luce V. Stubbs, 
 Luf kin V. Patterson, 
 Lumberman's Bank v 
 
 Bearce, 
 Lumbert v. Hill, 
 Lunt V. Aubens, 
 Lyford v. Holway, 
 Lyford v. Eoss, 
 
 Constitutional Law, 101, 106, 
 Judgment, 331. Liquor, 365, 
 
 Error, 211. 
 . Liquor, 370, 
 
 Bank, 67. Costs, 134, 135. Usury, 672. 
 
 Equity, 209. Execution, 264, 265. Title, &o., 548. 
 
 Guardian and Ward, 296. 
 
 Trustee Process, 663, 
 
 Mortgage, 404. 
 Lyford v. Toothaker, Trespass, 555. 
 Lyman v. Parker, Trustee Process, 564. 
 Lyon V. Sibley, Nonsuit, 414. Practice, 471. 
 
 Lyon V. Williamson, Bills, &c., 78, 79. Pleading, 452, 454. Practice, 466. 
 
XXX 
 
 TABLE OP CASES. 
 
 M. 
 
 xliii. 176, 
 xxxii. 105, 
 icxxvi. 136, 
 xxxviii. 426, 
 xxxiii. 427, 
 xxxv. 405, 
 XXXV. 19, 
 
 xxxvi. 365, 
 
 XXXV. 
 
 XXX, 
 
 xxxiv. 
 xxxvi. 
 xxxvi. 
 xxxix. 
 
 156, 
 508, 
 
 34, 
 486, 
 147, 
 
 25, 
 343, 
 
 xli. 591, 
 xxxii. 160, 
 xxxix. 188, 
 
 xxxii. 329, 
 xxviii. 280, 
 
 xKi. 
 
 xli. 
 xxvii. 
 xxxiv. 
 
 XXXV. 
 
 xxix. 
 
 xxxviii. 
 
 xliii. 
 
 xxxii, 
 
 xxxvi. 
 
 xxxl. 
 
 xxxiv. 
 
 xliii. 
 
 xxxii. 
 
 xl. 
 
 xlii. 
 
 xxxix. 
 
 xK. 
 
 xlii. 
 
 xl. 
 
 xxxvi. 
 
 xxxiv. 
 
 xliii. 
 
 xxxviii. 
 
 86, 
 403, 
 475, 
 227, 
 221, 
 341, 
 128, 
 355, 
 271, 
 673, 
 215, 
 
 472, 
 265, 
 305, 
 394, 
 257, 
 98,. 
 659, 
 184, 
 474, 
 296, 
 142, 
 307, 
 296, 
 345, 
 666, 
 
 Maberry v. Morse, Rules of Court, 506. 
 
 Maberry v. Morse, Exceptions, 267. Ee-commitment, &c., 493. 
 
 Mace V. Heald, Trustee Process, 564. 
 
 Mace V. Woodward, Abatement, 2, 3. 
 
 Maohias v. E. Maohias, Evidence, 23.5. Pauper, 439. 
 
 Machias Hotel v.Coyle, Contract, 106. 
 
 Machias R. R. Co. v. 
 
 County CommissionerB, 140. 
 
 Pope, 
 Macnawhoc v. Thomp 
 
 son, 
 Macomber v. Wright, 
 Maguire v. Pingree, 
 Mahan v. Myers, 
 
 xxxiv. 286, 
 
 Statutes, 534. 
 
 Trustee Process, 564, 566. 
 
 Contract, 119. Equity, 197- Shipping, 529. 
 
 Practice, 475. 
 Mahoney v. Crowley, Bastardy, 63. Jurisdiction, 334. 
 Malbon v. Southard, BUls, &c., 65, 69, 76. 
 Mann v. Edson, Dower, 189, 193. Evidence, 224. 
 
 Manning v. Laboree, Abatement, 3. Deed, 176. Dower, 190, 191, 193. 
 
 Pleading, 456. 
 Mansfield v. Andrews, Bankruptcy, 60, 62. 
 Mansfield v. Rounds, Appeal, 23. 
 Manufacturers' Bant 
 
 Bills, &c., 67, 74. Surety, 638. 
 
 Deed, 165, 166. 
 
 V. Cole, 
 Marden v. Chase, 
 Mariner's Bank v. 
 
 Abbott, 
 Marks v. Gray, 
 Marr v. Barrett, 
 Marsh v. Flint, 
 Marshall v. Mitchell, 
 Marshall v. Mitchell, 
 Marston v. Knight, 
 Marston v. Savage, 
 Mason v. Currier, 
 Mason v. Ellsworth, 
 Mason v. Ham, 
 Mason v. Ken. & Port. 
 
 R. R. Co., 
 Mason v. Tallman, 
 Matthews v. Buck, 
 Matthews v. Light, 
 Matthews v. Light, 
 
 Evidence, 227, 248. 
 Law and Fact, 342. 
 Trover, 558, 659. 
 Logs, &c., 373, 374. 
 Bills, &c., 71. 
 Bills, &c., 71. 
 Sale, 612. 
 Poor Debtor, 462. 
 Exceptions, 266. 
 Way. 581, 582. 
 Executors, &c., 268, 269, 
 
 Surety, 639. 
 
 Malicious Prosecution, 378. 
 
 Railroads, 484, 485. 
 
 366, 
 283, 
 
 74, 
 
 xxxm. 
 
 xxxviii. 
 
 xU. 
 
 xxx- 608, 
 
 xxxiii. 331, 
 
 xxxiii, 187, 
 
 iii. 368, 
 xl. 136, 
 
 Constitutional Law, 103. 
 
 Evidence, 217, 225, 250. 
 
 Fraud, &c., 287. 
 
 Estoppel, 216. Tax, 544. 
 
 Evidence, 233. 
 Matthews v. Patterson, Probate Bonds, 479. 
 Maxwell v. Brown, Frauds, Statute of. 289. 
 Maxwell v. Haynes, Frauds, Statute of, 289. 
 Maxwell v. Maxwell, Joint Tenants, &c., 328. Trespass, 654, 556. 
 Mayall, appellant, Devise, &c., 184. Probate Court, 480. 
 
 Mayhew v. Paine, Trustee Process, 566. 
 Mayo V. Babcock, Vide Appendix. 
 McAllister v. Furlong, Trustee Process, 667. 
 McAllister v. Sprague, Release, 496. 
 McArthur v. Starrett, Error, 210, 211. Record, 494. 
 McCrillis v. Hawes, Exceptions, 267. New Trial, 413. Partnership, 
 
 434. Trespass, 556. 
 MoCrUlis V. Wilson, Liens, 362, 363, 366. 
 McDonald v.Philbrook,Evidence, 220. 
 MoGilvery v.Stackpole,Shipping, 628. 
 McGlinchyv. Barrows, Liquor, 368, 371. Officer, 424. 
 McGliuchy v. Pingree, Vide Maguire v. Pingree. 
 McGurn v. Brackett, Malicious Prosecution, 478. 
 McKeen v. Gammon, Attorneys, &c., 51. Damages, 162. Execution, 
 
 260, 264. Relationship, 496. 
 McKeenan v. Thissel, Vide Appendix. 
 McKinney v. Co. Com. Certiorari, 89. 
 
TABLE OP CASES. 
 
 XXXI 
 
 xxxii. S13, 
 
 xxxi. 448, 
 
 xxxix. 142, 
 
 xl. 284, 
 
 xxxii. 143, 
 
 Limitations, &c., 361. 
 
 xxxii. 21, 
 
 xxxvi. 95, 
 xxxii. 494, 
 
 xxxiv. 552, 
 
 xxvii. 129, 
 
 XXXV. 172, 
 
 xli. 131, 
 
 xxix. 217, 
 
 xxxvii. 550, 
 
 xxxii. 72, 
 
 xli. 469, 
 
 xl. 117, 
 
 xxxi. 314, 
 
 xxxvii. 556, 
 
 xxxvi. 71, 
 
 xli. 601, 
 
 xxxviii. 500, 
 
 xlii. 289, 
 
 xxxiii. 253, 
 
 xl. 232, 
 
 xxix. 346, 
 
 xl. 569, 
 
 xxxiii. 455, 
 
 xxxviii. 267, 
 
 xxxvii. 394, 
 
 xxxi. 57, 
 
 xli. 414, 
 
 xxix. 58, 
 xxxvi. 28, 
 xxxiii. 169, 
 
 xxix, 19, 
 
 XXXV. 139, 
 xxvii. 509, 
 
 xxxiv. 102, 
 XXXV. 153, 
 xisii. 203, 
 xxxiii. 621, 
 xxxvi. 577, 
 
 McKinney v. Page, Referees, 495. 
 
 McKown v.WMtraore, Fraud, &c., 285. 
 
 MoLanathan v. Patten, Evidence, 245. 
 
 MoLarrenv.Thompson, Costs, 134, 135. Fraud, &c., 287, 288. Mortgage, 
 407. Replevin, 500. 
 
 TV/r^T „„„i,i;„ „ «i,or, ) Attachment, 41, 42. Bond, 81, 83. Deed, 163. 
 
 McLaughlin v.Shep-^ Execution, 260. Fraud, &c.; 285. Mortgage, 
 "^™' ) 392, 397. 
 
 McLaughlin v. Whit- 
 Bastardy, 62. Execution, 259. 
 Evidence, 244. Shipping, 630. 
 
 ten, 
 
 McLeUan v. Cox, 
 
 McLellan v. Long- 
 fellow, 
 
 McLellan v. Long- 
 fellow, 
 
 McLellan v. Nelson, 
 
 McLellan v. Reed, 
 
 Attorneys, &o., 61. 
 
 Shipping, 628. 
 Execution, 263. 
 
 ried Woman, i 
 Shipping, 528. 
 
 Husband and Wife, 299. 
 81. 
 
 Mar- 
 
 Merrick v. Farwell, 
 Merrill v. Gardiner, 
 Merrill v. Gore, 
 Merrill v. Ireland, 
 Merrill v. Mowry, 
 Merrill v. Shaw, 
 Merrill v. Smith, 
 
 McMillan v. Hobson, Trustee Process, 562. 
 McMillan v. Wood, Limitations, &c., 360. 
 McNally v. KersweU, Actions, &c., 12. Executors, &c., 272, 274. Liens, 
 
 354. Officer, 422. Partnership, 434. 
 McPhetres v. Halley, Bills, &c., 70, 73, 74. Limitations, &g., 359. 
 McPhetres v. Lumbert, Liens, 364. 
 McQuestion v.Sanford, Vide Appendix. 
 
 McVioker v. Beede, Actions, &c., 9. Amendment, 20. Judgment, 333. 
 Means v. Williamson, Sale, 610. 
 Medcalf v. Seecomb, Deposition, 179, 181. 
 Melcher v. Merryman, Deed, 169, 172, 174. Evidence, 224. Exceptions, 
 
 256. Trespass, 565. 
 Mercantile Bank v.Cox,Bills, &c., 70, 73, 80. Partnership, 431. 
 Mercer v. Bingham, Offer to be defaulted, 417. 
 
 Recognizance, 492. Tender, 547. 
 Arbitration, 27, 28. 
 Contract, 115. 
 Deed, 163, 164. 
 Contract, 113. 
 
 Bank, 57. Covenant, 148. Damages, 158. 
 Husband and Wife, 300. Married Woman, 382. 
 Merrillv. SufrolkBank,Bank, 55. Corporation, 121. Error, 210, 211. 
 Merrill V. Whitefield, Evidence, 261. Law and Fact, 345. Practice, 474. 
 
 Witness, 596. 
 Merrill v. Wilson, Assignment, 38. Partnership, 433. 
 Metcalf V. Taylor, Contract, 119. Mortgage, 392. Shipping, 525. 
 
 Methuen Co. v. Hayes, Agency, 16, 18. 
 Middlesex Bank v. 
 
 Buttnan, Evidence, 237. Judgment, 333. 
 
 Millay v. Butts, Evidence, 232. 
 
 MiUer v. Ewer, Corporation, 122, 126, 129. Deed, 161. Evi- 
 
 dence, 233. Real Action, 490. 
 Miller v. Goddard, Contract, 116. Damages, 155. Exceptions, 257. 
 Miller v. Marston, Liens, 353. 
 
 MiUer v. Whittier, Equity, 203, 207, 209. Pleading, 451. 
 Miller v. Whittier, Equity, 201. 
 
 Miller V. WMttier, Equity, 201, 202, 206. Exceptions, 257. Inter- 
 est, 324. Mortgage, 395. 
 Assignment, 34, 36. Partnership, 432, 433. Trus- 
 tee Process, 562. 
 Milliken v. Tufts, New Trial, 413. Payment, 447. 
 Mills V. Darling, Mortgage, 392. 
 
 Milo V. Gardiner, Evidence, 241. New Trial, 412. Pauper, 436. 
 "Verdict, 574. 
 Certiorari, 88. County Comm'rs, 137. Way, 580. 
 
 xxxvii. 408, Milliken v. Loring, 
 
 xxxi. 497, 
 
 xliii. 566, 
 
 xli. 649, 
 
 xxviii. 121, 
 xxix. 376, 
 
 xxxiii. 74, 
 
 Minot V. Co. Com., 
 Mitchell V. Cunning- 
 ham, 
 Mitchell V. Libby, 
 
 Attachment, 46. 
 Trespass, 557. 
 
 Shipping, 629. 
 
XXXll 
 
 TABLE OP CASES. 
 
 xli. 
 xxxii. 
 xxxi. 
 
 XXXV. 
 
 xxxiv. 
 xxvii. 
 xxvii. 
 
 xxxix. 
 
 xxxiv. 
 
 xxxviii. 
 
 XXXV. 
 
 xlii, 
 xxxviii. 
 
 363, 
 434, 
 340, 
 247, 
 107, 
 427, 
 551, 
 200, 
 282, 
 663, 
 174, 
 276, 
 29, 
 133, 
 
 Mitchell v. Rockland, Quarantine, 484. Town, 560. 
 Mitchell V. Taylor, Shipping, 525. 
 Mixer v. Cook, Replevin, 500. Sale, 508. 
 
 Monmouth V. Gardiner, Mills, 387, 388. Ways, 584. 
 
 xxxi. 360, 
 
 xxxii, 343, 
 
 xxxii. 46, 
 xxxiii. 227, 
 xlii. 460, 
 xxxvi. 14, 
 xxxix. 307, 
 
 xxix. 669, 
 xxxii. 102, 
 
 xxix. 97, 
 
 xxxvii. 438, 
 
 xxxii. 497, 
 
 xxxiv. 207, 
 
 xxxviii. 496, 
 
 XXXV. 65, 
 
 xxxi. 120, 
 
 XXXV. 207, 
 
 XXX. 167, 
 
 xxxix. 281, 
 
 xxxvii. 386, 
 
 xxxiv. 146, 
 
 xxxii. 100, 
 
 xliii. 667, 
 
 xxxix. 286, 
 
 xlii. 119, 
 
 xxviii. 481, 
 
 xxxii. 127, 
 
 xxviii. 41, 
 
 xxxvi. 113, 
 
 xli. 360, 
 
 XXX. 83, 
 
 xxxii. 412, 
 
 xxix. 337, 
 
 xxxi. 490, 
 
 xxxviii. 68, 
 
 xxxiv. 640, 
 
 xxxi. 296, 
 
 xxxi. 162, 
 
 xxviii. 505, 
 xK. 298, 
 
 Moody V. Brown, 
 Moody V. Burton, 
 Moody V. ClEirk, 
 Moody V. Hinckley, 
 Moody V. Larrabee, 
 Moody V. Whitney, 
 Moody V. Whitney, 
 Mooers v. Allen, 
 Moor V. Gary, 
 Moor V. Towle, 
 
 Moor V. Yeazie, . 
 
 Moor V. Veazie, 
 
 Moore v. Abbott, 
 Moore v. Duulap, 
 Moore v. Fall, 
 Moore v. Holland, 
 Moore v- Holland, 
 Moore v. Mann, 
 Moore v. Philbrick, 
 
 Sale, 508. 
 
 Actions, &o., 11. 
 
 Fraud, Sec, 286. 
 
 Exceptions, 256. 
 
 Exceptions, 253. 
 
 Exceptions, 255. 
 
 Damages, 163. 
 
 Damages, 163. 
 
 Arbitration, 31. 
 
 Evidence, 220. 
 
 Actions, &c., 12. 
 cess, 662, 663. 
 
 Constitutional Law, 103, 
 Riparian Rights, 506. 
 
 Aquatic Rights, 24. Commerce, 94. Constitu- 
 tional Law, 104. Equity, 203. Indians, 302. 
 
 Way, 581. 
 
 Poor Debtor, 458. 
 Pleading, 452. 
 
 Trees, 663. Trover, 659, 660. 
 
 Judgment, 333. Trustee Pro- 
 
 104. Injunction, 312. 
 
 Appeal, 23. 
 Bills, &c., 75. 
 Practice, 470. 
 Contract, 108, 120 
 
 Practice, 475. 
 
 Law and Fact, 344. 
 Costs, 134. Partition, 427. 
 Practice, 467. Probate Court, 480, 481. 
 Moore v. Protection > Evidence, 236, 243. Insurance, 318, 322. 
 Ins. Co., 5 Trial, 410. 
 
 V. Richardson, Execution, 264. Married Woman, 383. 
 Agency, 17. 
 Costs, 135, 136. 
 Mortgage, 393, 395. 
 
 New 
 
 Moore 
 
 Moore v. Thompson, 
 Moore v. Thompson, 
 Moore v. Ware, 
 Moran v. Portland S. 
 
 P. Co., 
 Morrell v. Cook, 
 
 Morrell v. Cook, 
 Morrell v. Dixfield, 
 Morrill v. Dunn, 
 Morris v. Day, 
 Morrison v. .fewell. 
 
 Bailment, 54. Pleading, 456. Witness, 595. 
 
 Constable, 99, 100. District Court, 186. Officer, 
 417. 
 
 Constable, 99, 100. Evidence, 227. Officer, 417. 
 
 Actions, &c., 8. Evidence, 245. Town, 549. 
 
 Actions, &c., 13. 
 
 Equity, 201, 202. Mortgage, 402. 
 
 Bills, &c., 66, 76, 78. Insolvent Estates, 315. 
 Set-off, 522. 
 Morrison v. Kittridge, Costs, 13 S. 
 Morrison v. McArthur, Covenant, 148. 
 Morse V. And. R.R.Co.,Bailment, 54, 56. 
 Morse v. Machias W. 
 
 Equity, 204. Injunction, 312. 
 
 Impounding, 301, 302. Replevin, 600. 
 
 Estoppel, 215. Mortgage, 406. Officer, 419. 
 
 Equity, 196, 197, 204. 
 
 Frauds, Statute of, 289. 
 
 Joint Tenants, 329. 
 
 Deed, 170. 
 
 Dower, 190. 
 
 P. & M. Co., - 
 Morse v. Reed, 
 Morton v. Hodgdon, 
 Morton v. Southgate, 
 Moses V. Norton, 
 Moses V. Ross, 
 Mosher v. Berry, 
 Mosher v. Mosher, 
 Motley V. Manufac- 
 turer's Ins. Co., 
 Motley V. Motley, 
 Motley V. Sawyer, 
 Motley V. Sawyer, 
 Moulton V. Bird, 
 Moultou V. Chad- 
 bourne, 
 Moulton V. Chapin, 
 Moulton V. Faught, 
 
 Insurance, 322^ 
 Divorce, 186, 187. 
 Husband and Wife, 298. 
 Husband and Wife, 299. 
 Replevin, 499, 500. 
 
 Married Woman, 381. 
 
 xxxvii. 472, Moulton v. Libbey, 
 
 Attachment, 41, 46. Officer, 418. 
 Amendment, 22. Attachment, 44, 45, 46, 48. 
 Deed, 168. Frauds, Statute of, 289. Mills, 386. 
 
 Reservation, 502. 
 Clams, 92. Fisheries, 280. Trusts, 669. 
 
TABLE OP CASES. 
 
 XXXIU 
 
 xxxii. 
 
 466, 
 
 xxxii. 
 
 375, 
 
 xxxix. 
 
 287, 
 
 xxxii. 
 
 406, 
 
 xxxii. 
 
 165, 
 
 xxxviii. 
 
 255, 
 
 xlii. 
 
 178, 
 
 XXXV. 
 
 472, 
 
 xxxiv. 
 
 196, 
 
 xxxii. 
 
 617, 
 
 xl. 
 
 498, 
 
 xxxiv. 
 
 74, 
 
 xli. 
 
 34, 
 
 xliii. 
 
 232, 
 
 9, 
 
 Moulton V. Lo-we, 
 
 Moulton V. Powers, 
 
 Moulton V. Scruton, 
 
 Moulton V. Smith, 
 
 Mudge V. Pierce, 
 
 Mudgett V. Emery, 
 
 Munroe v. Gates, 
 
 Murdook v. Ripley, 
 
 Murphy v. Glidden, 
 
 Murray v. Cargill, 
 
 MuBgrave v. Hall, 
 
 Mussey v. Cahoon, 
 
 Mussey v.Union Wliarf,Easemeut, 196 
 
 Myers v. York & 
 
 Cumb. E.. R. Co., Actions, &c., 13 
 Myrick v. Hasey, Bills, &c., 68. 
 Usury, 672. 
 
 Actions, &c., 10. Equity, 207. 
 
 Trespass, 656. 
 
 Damages, 164, 156. Evidence, 226. 
 
 Pleading, 463. Replevin, 499. 
 
 Evidence, 220. Exceptions, 263. 
 
 Costs, 133. 
 
 Evidence, 224. Law and Fact, 345. Practice, 474. 
 
 Assault, &c., 33. Officer, 420. 
 
 Exceptions, 267. 
 
 Joint Tenants, &c., 329. Trespass, 654. 
 
 Liquor, 371. Replevin, 497. 
 
 Damages, 150. Streets, 635. Trespass, 666. 
 
 Coupons, 137. 
 Evidence, 248. 
 
 Statutes, 632. 
 
 N. 
 
 xxxvi. 339, 
 
 xl. 126, 
 
 xxxviii. 489, 
 
 xliii. 343, 
 
 xxxix. 341, 
 
 xxxiv. 391, 
 
 xxxi. 168, 
 
 XXXV. 158, 
 
 xlii. 322, 
 
 xxxix. 200, 
 
 XXXV. 316, 
 xxxii. 334, 
 xxxiv. 451, 
 
 xxviii. 60, 
 xHii. 293, 
 
 xxxiii. 193, 
 
 xliii. 366, 
 
 xxxvi. 322, 
 
 xxxviii. 277, 
 
 xxxvi. 417, 
 
 xxxvi. 413, 
 
 xxxiii. 433, 
 
 xlii. 618, 
 
 xxxix. 273, 
 
 xxxiii. 581, 
 xxxiv. 632, 
 XXXV. 218, 
 
 xxxvi. 270, 
 XXX. 173, 
 xxxi. 663, ' 
 xl. 237, 
 
 Narra. L. Proprietors 
 
 v. Wentworth, 
 Nash. V. Babb, 
 Nash. V. Parker, 
 Nash V. Union Mut. 
 
 Ins. Co., 
 Nash V. "Wliitney, 
 Nason v. Dinsmore, 
 Nasou V. McCullock, 
 
 Attorneys, &c., 61. Witness, 696. 
 Damages, 157, 158. Poor Debtor, 464, 465. 
 Shipping, 529. 
 
 Insurance, 321. 
 Attachment, 44. 
 Lord's Day, 376 
 Limitations, &c 
 
 522. 
 Exceptions, 254. Poor Debtor, 457, 458. 
 Attachment, 42. Contract, 108. Equity, 208. 
 Deed, 165, 166. Married Wo 
 
 Officer, 423. "^ 
 
 361. Payment, 447. Set-off, 
 
 Damages, 152. Libel, &c., 348. 
 New Trial, 411. 
 
 Perjury, 449. 
 
 Contract, 110, 113 
 Evidence, 243 
 
 Insurance, 317, 318, 320. 
 
 Liquor, 364, 365. 
 New Trial, 410. 
 
 Poor Debtor, 
 
 Som- 
 
 Neal V. Paine, 
 
 Neil V. Tenney, , ... 
 
 Newbegin v. Langley, Abatement, 2, 3. 
 
 man, 382. 
 Newbit V. Statuck, 
 Newell V. Ayer, 
 New Eng. M. F. Ins. 
 
 Co. V. Butler, 
 New Gloucester v. 
 
 Bridgham, , 
 
 Newton v. Newbegin, Damages, 158. 
 
 464. 
 New Vineyard v. 
 
 Harpswell, Pauper, 440. 
 
 Nichols V. Som. & } Constitutional Law, 102. Railroads, 487. 
 
 Ken. R. R. Co., J erset and Kennebec R. R. Co., 532. 
 Nichols V. Valentine, Attachment, 42, 47. Liquor, 366. 
 Nickersonv.Harriman, Damages, 169. Shipping, 528. 
 Nickerson v. Nicker- 
 
 son, Abatement, 3. Practice, 467. 
 
 Nickerson v. Saunders, Contract, 108. Evidence, 228. 
 Nickerson v.Thompson,Inspectors, 315, 316. 
 Noble V. Steele, Shipping, 527. 
 
 Norris v. And. R. R. 
 
 Fence, 277. Railroads, 483. 
 Deposition, 180, 181. 
 Deed, 177. Heirs, 296. 
 
 Evidence, 250. Frauds, Statute of, 289. Mort- 
 gage, 403, 404. 
 Contract, 117. 
 
 Injury, &c., 312, 313. New Trial, 413. 
 Vide Appendix. 
 
 Evidence, 223. New Trial, 412. Officer, 423, 
 424. Practice, 469, 471. 
 
 Co, 
 
 Norris v. Vinal, 
 North V. Philbrook, 
 Norton v. Webb, 
 
 Norton v. Webb, 
 Noyes v. Shepherd, 
 Nute V. Bryant, 
 Nutt V. Merrill, 
 
XXXIY 
 
 TABLE OP CASES. 
 
 xxxu. 
 xli. 
 
 504, 
 272, 
 
 Nutter V. Bailey, 
 Nye V. Spencer, 
 
 Survey, &c., 541. 
 Pleading, 463, 454. 
 
 o. 
 
 xxxiii. 67, Oatman v. Walier, 
 
 O'Brien v. Gilchrist, 
 OdeU T. Dana, 
 O'Donnell v. Leeman, 
 
 Oldtown V. Falmouth, 
 Oldtown & L. R. K. 
 
 Co. V. Yeazie, 
 Oldtown V. Shapleigh, 
 Orcutt T. Butler, 
 Orono V. Co. Comm'rs, 
 Osgood V. Lansil, 
 Osgood y. Lovering, 
 Otis V. Adams, 
 Otis V. Gazlin, 
 Oxford V. Co. Com'rs, 
 Oxford V. Paris, 
 Oxnard v. Swanton, 
 
 xxxiv. 
 
 554, 
 
 xxxiii. 
 
 182, 
 
 xliii. 
 
 158, 
 
 xl. 
 
 .106, 
 
 xxxix. 
 
 571, 
 
 xxxiii. 
 
 278, 
 
 xlii. 
 
 83, 
 
 XXX. 
 
 302, 
 
 xxxiii. 
 
 360, 
 
 xxxiii. 
 
 464, 
 
 xli. 
 
 258, 
 
 xxxi. 
 
 567, 
 
 xliii. 
 
 257, 
 
 xxxiii. 
 
 179, 
 
 xxxix. 
 
 125, 
 
 Contract, 112. Damages, 155. Deed, 161, 162. 
 
 Tender, 447. 
 Evidence, 229. Shipping, 530. 
 Limitations, &c., 358, 362. Witness, 693. 
 Actions, &c., 13. Auction, &c., 53. Contract, 
 
 120. Notice, &c., 415. 
 Emancipation, 195. Pauper, 436, 441. 
 
 Corporation, 124, 125, 127, 129. Pleading, 456. 
 Evidence, 241. 
 Arbitration, 28, 30. 
 County Commissioners, 138. 
 Exceptions, 253. 
 Will, 588, 589. 
 
 Contract, 118. Partnership, 432. Set-off, 623. 
 Bankruptcy, 60, 61. 
 Certiorari, 88, 90. 
 Pauper, 442. 
 
 Exceptions, 255. Husband and Wife, 298. Wit- 
 ness, 593. 
 
 P. 
 
 xxxiv. 
 
 266, 
 
 Packard v. New Lim- 
 . erick. 
 
 xxix. 
 
 458, 
 
 Packard v.SwaUow, 
 
 XXX vii. 
 
 553, 
 
 Page V. Co. Comm'rs, 
 
 xxxyiii. 
 
 523, 
 
 Page V. Cushing, 
 
 xxxix. 
 
 400, 
 
 Page V. Swanton, 
 
 XXXV. 
 
 181, 
 
 Paine v. Marr, 
 
 xxxii. 
 
 131, 
 
 Paine v. Mclntire, 
 
 xxxix. 
 
 15, 
 
 Paine v. Paulk, 
 
 xxxiii. 
 
 602, 
 
 Palmer v. Dougherty, 
 
 XXXV. 
 
 368, 
 
 Palmer v. Fogg, 
 
 xxxii. 
 
 535, 
 
 Palmer v. Goodwin, 
 
 xxxiii. 
 
 32, 
 
 Palmer v. Pinkham, 
 
 XXX vii. 
 
 252, 
 
 Pnlmer v. Pinkham, 
 
 XXX. 
 
 211, 
 
 Palmyra v. Prospect, 
 
 xxviii. 
 
 492, 
 
 Parker v. Emery, 
 
 xxxix. 
 
 144, 
 
 Parker v. Goddard, 
 
 xxvii. 
 
 196, 
 
 Parker v. Marston, 
 
 xxxiv. 
 
 386, 
 
 Parker v. Marston, 
 
 xli. 
 
 349, 
 
 Parker v. Tuttle, 
 
 XXX vi. 
 
 404, 
 
 Paikhurst v. Jackson, 
 
 XXX. 
 
 187, 
 
 ParUn v. Churchill, 
 
 xxxix. 
 
 363, 
 
 ParUu V. Ware, 
 
 xxxiv. 
 
 240, 
 
 Parsons v.'Bridgham, 
 
 xxxiii. 
 
 370, 
 
 Parsons v. Copeland, 
 
 xxxviii. 
 
 537, 
 
 Parsons v. Copeland, 
 
 xl. 
 
 132, 
 
 Parsons v. Hathaway, 
 
 xli. 
 
 218, 
 
 Parsons v. Howe, 
 
 xxxviii. 
 
 137, 
 
 Parsons v. Huff, 
 
 Malicious Prosecution, 378. 
 
 Collector, 93. Tax, 543. Town, 649. 
 
 Limitations', &c., 368. 
 
 Town, 650. 
 
 Actions, &c., 12. 
 Pleading, 462. 
 
 Evidence, 244. 
 
 Trespass, 554. 
 
 Executors, &c., 273. Scire Facias, 517. 
 
 Executors, &c.,270. Interest, 325. Widow, &c.,587. 
 
 Deed, 166, 171. Joint Tenants, &c., 329. Main- 
 tenance, 376. Trespass, 557. 
 
 Contract, 112. Deposition, 180, 181. Evidence, 
 222, 227. 
 
 Contract, 110. Foreign Laws, 283. 
 
 Evidence, 249. 
 
 Exceptions, 254. New Trial, 412. Practice, 471. 
 
 Estoppel, 216. Pauper, 443. 
 
 Actions, &c., 7. 
 
 Lease, 346. 
 
 Donatio, &c., 187; Evidence, 246. 
 
 Evidence, 244. 
 
 Bills, &c., 68, 69. Evidence, 233. 
 
 Payment, 446. 
 
 Execution, 258, 259, 264. 
 
 Vide Appendix. 
 
 Evidence, 250. Exceptions, 254. Liquor, 367. 
 
 Estoppel, 214. Evidence, 237, 244. Liens, 352. 
 Register, &c., 496. 
 
 Fixtures, 281. Partition, 429. 
 
 Poor Debtor, 464. 
 
 Railroads, 486. 
 
 Deposition, 180, 181, 182. New Trial, 411. Ver- 
 dict, 574. 
 
TABLE OF CASES. 
 
 XXXV 
 
 xli. 41fl, Parsons v. Huff, 
 
 xxxvi. 16, 
 
 xxxiii. 483, 
 
 xxix. 4i8, 
 
 Partridge v. Luce, 
 Partridge v. Patten, 
 Patcli V. King, 
 
 xxxT. 121, Pattee v. Lowe, 
 
 xxxvi. 138, 
 
 xxxii. 163, 
 
 xxvii. 58, 
 
 xl. 457, 
 
 xxxviii. 215, 
 
 xxxii. 378, 
 
 xxvii. 17, 
 
 XXX. 91, 
 
 xlu. 367, 
 xl. 404, 
 
 XXX. 28, 
 
 xliii. 552, 
 
 xl. 293, 
 
 XXXV. 97, 
 
 XXX. 319, 
 
 xxxvi. 384, 
 
 xxviii. 336, 
 
 xxxi. 117, 
 
 XXX. 498, 
 
 xxxvi. 393, 
 xxvii. 345, 
 
 xxxix. 587, 
 
 xl. 172, 
 
 xli. 512, 
 
 xxxiii. 242, 
 
 xxix. 307, 
 
 XXXV. 23, 
 
 xlii. 141, 
 
 xliii. 280, 
 
 xxxviii. 558, 
 
 xl. 139, 
 
 xxxix. 384, 
 
 xxxii. 569, 
 
 xxxix. 498, 
 
 xxix. 410, 
 
 xxvii. 53, 
 xxxvii. 137, 
 
 xxix. 77, 
 
 xl. 160, 
 
 xxxiii. 357, 
 
 xlii. 360, 
 
 xl. 96, 
 
 xxxii. 440, 
 
 xxxvii. 63, 
 
 XXXV. 67, 
 
 Pattee v. Lowe, 
 
 Patten v. EUingwood, Bankruptcy, 61. 
 Patten v. Fullerton, Attorneys, &c., 50 
 
 Evidence, 251. Law and Fact, 345. Practice, 
 
 474. Witness, 596. 
 Flats, 281, 282. Partition, 427, 428. 
 Covenant, 146. Estoppel, 214. 
 Bills, &c., 72. Evidence, 229. Limitations, &c., 
 
 363. Mortgage, 398. 
 Abatement, 3. Insolvent Estates, 315. Practice, 
 
 467. 
 Executors, &o., 271, 273. Insolvent Estates, 315. 
 
 WiU, 587, 688. 
 Contract, 113. 
 
 Patten v. Hood, 
 
 Patten v. KeUey, 
 
 Patten v. Libbey, 
 
 Patten v. Tallman, 
 
 Patterson v. Augusta 
 W. P. Co., 
 
 Patterson v. Creighton, Assessors, 33 
 
 Patterson v. Proprie- 
 tors of East Bridge, Bridges, 86 
 
 Patterson v. Trask, ~ 
 
 Patterson v. Vose, 
 
 Paul V. Frost, 
 
 Paul V. Hussey, 
 
 Payson v. Hall, 
 
 Pearsons v. Tincker, 
 
 Pease v. Benson, 
 
 Pease v. Whitten, 
 
 Payment, 444, 445. 
 Contract, 112. Damages, 156. Interest, 326. 
 Poor Debtor, 460. 
 Damages, 153. 
 
 Tax, 643. Way, 686. 
 
 Deed, 170. 
 
 Bills, &c., 64, 70, 71, 73, 78, 80. 
 Heal Action, 490. Witness, 692. 
 Error, 211. Record, 494. 
 Collector, 93. 
 
 Liens, 364, 356. 
 Mortgage, 399, 400,401. 
 Arbitration, 31. Judgment, 330, 
 
 Attachment, 47. 
 Assignment, 36. 
 Actions, &c., 9. 
 331. 
 Peavey v. Calais R. 
 
 R. Co., Railroads, 484. 
 
 Peck V. Ellsworth, Town, 649. 
 Penobscot Boom Corp. 
 
 V. Wilkins, Attachment, 47, 48. 
 
 Pen. & Ken. R. R. > Corporation, 124, 126, 127, 129, 131. Evidence, 
 
 Co. V. Dunn, > 239. Pleading, 456. 
 
 Pen. R. R. Co. v. 
 
 Dummer, Corporation, 124, 125, 128, 131. Evidence, 239. 
 
 Pen. R. R. Co. v.White,Corporation, 125, 126, 128, 131,132. Evidence, 
 
 224, 239, 247. Exceptions, 256.- 
 Percival v. Maine M. 
 
 M. Ins. Co., Law and Fact, 344. 
 
 Perkins v. Eastern & 
 
 B. &M. R.R. Co's, Evidence, 231. Fence, 277. Railroads, 484. 
 
 Perkins v. .Terdan, 
 Perkins v.~Pike, 
 Perkins v. Raitt, 
 Perley v. Dole, 
 Perley v. Dole, 
 Perrin v. Noyes, 
 
 Agency, 18. Custom, 150. Evidence, 235. 
 Liens, 365, 356, 367. 
 
 Scire Facias, 517. 
 
 Evidence, 
 
 Real Action, 489 
 
 Equity, 204. 
 
 Trover, 568. 
 
 Bills, &c., 80. 
 Pettingill V. Patterson, Bond, 81. 
 Pettingill v. Patterson, Executors, &c., 272, 
 Philbrook v. Delano, Deed, 176. Equity, 203, 205 
 
 Liens, 351. 
 Philbrook v. Handley, Penalty, 448. Witness, 593. 
 Philbrook v. New 
 
 Insurance, 319, 320. 
 
 Bills, &c, 69, 72. 
 
 Evidence, 225. Tax, 544, 546. 
 
 Attorneys, &c., 61. Poor Debtor, 462. 
 639. 
 
 Bankruptcy, 62. 
 
 Exceptions, 256. Town, 550. 
 
 Habeas Corpus, 295. 
 
 Deed, 172, 175. Evidence, 229. 
 
 Trustee Process, 564. 
 
 231. 
 
 Eng.M.F. Ins. Co., 
 Phillips V. Frost, 
 Phillips V. Phillips, 
 Phillips V. Rounds, 
 
 Phillips V. Russell, 
 PhiUips V. Veazie, 
 Phinney, petitioner. 
 Pierce v. Faunce, 
 Pierce v. Henries, 
 
 Surety, 
 
XXXVl 
 
 TABLE OP CASES. 
 
 xxxi. 254, Pierce v. Irish, 
 
 xxxiv. 402, 
 xxvii. 341, 
 xxix. 69, 
 XXX. 113, 
 xxxix. 205, 
 XXX. 184, 
 xxix. 188, 
 
 Pierce v. Knapp, 
 Pierce v. OdUn, 
 Pierce v. Pierce, 
 Pierce v. Pierce, 
 Pierce v. Eobie, 
 Pierce v. Stevens, 
 Pierce v. Whitney, 
 
 xxxviii. 302, Pike y. Balch» 
 xxxiii. 38, PiKe v. Collins, 
 
 Husband and Wife, 
 
 xl. 503, 
 
 xxix. 183, 
 
 xxxix. 62, 
 
 xxxii. 245, 
 
 xxxii. 418, 
 
 xxxvi. 309, 
 
 XXX. 351, 
 
 XXX. 508, 
 
 xlii. 53, 
 
 xl. 587, 
 
 xxxviii. 237, 
 
 xxvu. 132, 
 
 xxxvi. 359, 
 xxxvi. 374, 
 
 xl. 218, 
 
 xlii. 365, 
 
 xxix. 555, 
 
 xxxii. 325, 
 
 xxxii. 566, 
 
 xlu. 221, 
 
 XXXI, 
 
 xxxi. 
 
 131, 
 169, 
 
 xxxvii. 349, 
 
 xxxii. 539, 
 
 xxxvi. 278, 
 
 xliii. 519, 
 
 xlii. 403, 
 
 xliii. 223, 
 
 xxxviii. 63, 
 
 xxxvii. 400, 
 xxxiv. 192, 
 xxxii. 381, 
 
 xxxvii. 322, 
 
 xxxix. 183, 
 
 xlii. 379, 
 
 xl. 269, 
 
 xHi. 471, 
 
 xxix. 471, 
 
 xxxviii. 9, 
 
 xxxiii. 17, 
 
 xli. 132, 
 
 Guardian and Ward, 293. Payment, 445. Pro- 
 bate Account, 478. Probate Bonds, 479. Pro- 
 bate Court, 480. 
 Vide Appendix. 
 
 Estoppel, 212. . Mortgage, 397. 
 Deposition, 180. 
 Arbitration, 25. 
 Trusts, 570. 
 
 Evidence, 227. Mortgage, 405. Replevin, 497. 
 Bills, Sec, 70, 79. Evidence, 221, 235, 245. Prac- 
 tice, 470. 
 Auction, &c., 63. Law and Pact, 344. Salvage, 
 
 613. Shipping, 526. 
 Bond, 81. Equity, 203, 206. 
 299, 300. Mortgage, 394. 
 Evidence, 219, 226, 248. 
 Deed, 175. Estoppel, 213. 
 Poor Debtor, 457. 
 
 Bankruptcy, 61. Limitations, &c., 363. 
 Bankruptcy, 58. Judgment, 331. 
 Deed, 170, 171, 172, 175, 177. 
 Certiorari, 88. 
 Account, 6. 
 
 Offer to be defaulted, 417. Statutes, 635. 
 Piiikham v. Morang, Insurance, 317. 
 Pitman v. Poor, Frauds, Statute of, 289. 
 
 Plaisted v. Boston & 
 
 Ken. St'mNav. Co., Bailment, 53. 
 Plantation v. Bean, Statutes, 534. 
 Plantation v. Hutch- 
 inson, Plantation, 460. 
 Plantation No. 9 v. 
 
 Bean, Plantation, 450. Waiver, 575. 
 
 Plummer v. Rundlett, Trustee Process, 565, 566, 668. 
 Plummer v. Sherman, Assumpsit, 39. 
 Plummer V. Sturtevant, Way, 686. 
 Plummer v. Water- 
 County Commissioners, 138, 140. 
 > Alienation, 19. Assignment, 36. Insurance, 319, 
 5 323. 
 Set-off, 622. 
 
 Pike V. Crehore, 
 Pike V. Galvin, 
 Pike V. Herriman, 
 Pike V. Lowell, 
 Pike V. McDonald, 
 Pike V. Munroe, 
 Pingree v. Co. Com. 
 Pingree v. Maguire, 
 Pingree v. Snell, 
 
 Mills, 386. 
 
 ville. 
 Pollard V. Som. M. 
 
 P. Ins. Co., 
 Pond V. Niles, 
 Porter's Administrator 
 
 V. Porter, ■ Bankruptcy, 60. 
 
 Porter v. And. & > Assumpsit, 39. 
 
 Ken. R. R. Co., 5 
 Porter v. BuckaeldB. 
 
 161. Seal, &c. 518. 
 
 Corporation, 124, 131. Deed, 
 
 R. R. Co., 
 Porter v. Pillsbury, 
 Porter v. Sevey, 
 Portland v. Bangor, 
 Portland v. Brown, 
 Port. & Ken. R. R. 
 
 Co. V. White, Actions, &c. 12. 
 
 Portland v. RoUe, Exceptions, 254. 
 Potter V. Cunningham, Lease, 346. 
 Powers V. Gowen, Contribution, 120 
 Powers V. Nash, 
 Powers V. Sanford, 
 Pratt V. At. 85 St. L, 
 
 R. R. Co., 
 Pratt V. Chase, 
 Pratt V. Churchill, 
 Pratt V. Knight, 
 Pratt V. Leadbetter, 
 Pratt V. Philbrook, 
 Pratt V. Philbrook, 
 
 Arbitration, 27, 28, 29. Practice, 467. 
 Deposition, 181. Mortgage, 396, 400. 
 Deed, 164. Practice, 472. 
 Overseers of the Poor, 425. 
 Contract, 118, 119. 
 
 Liquor, 370. 
 
 Evidence, 245. Surety, 540. 
 
 Assessors, 33. School District, 516. 
 
 At. & St. L. R. R. Co., 41. Railroads, 485, 486, 
 
 487. Statutes, 635. 
 Law and Fact, 344. Sale, 609. 
 Betterments, 63. Reversion, &c., 603. 
 Pleading, 456. 
 
 Devise, &c., 183. Will, 590. 
 Contract, 107, 110. Fraud, &c., 286. 
 Contract, 107, 110. 
 
TABLE OF CASES. 
 
 XXXVll 
 
 xxxvi. 448, 
 
 xli. 370, 
 
 xxviii. 355, 
 
 xxxi. 240, 
 
 xxxii. 456, 
 
 xU. 436, 
 
 xlii. 64, 
 
 XXX. 345, 
 
 xxxiii. 558, 
 
 xxxiv. 122, 
 xl. 481, 
 
 xxxvii. 379, 
 
 xxxii. 404, 
 
 xl. 314, 
 
 xli. 529, 
 
 xxxviii. 447, 
 
 XXX. 523, 
 
 xxxiv. 172, 
 
 xxxviii. 324, 
 
 xxviii. 442, 
 
 Pratt V. Pierce, Deed, 161, 165, Marriage, 380, 381. Seizin, &o., 
 
 520. 
 Pratt V. Seavey, Executors, &o., 273. Insolvent Estates, 315. 
 
 Liens, 354. 
 Pratt V. Thornton, Contract, 116. Equity, 196, 197. Trusts, 568. 
 Pray v. Gorham, Parent and Child, 425, 426. 
 
 Preble v. Hay, Landlord, &c., 341. 
 
 Prentiss v. Kelley, Attorneys, &c., 61. Partnership, 435. Practice, 
 
 466. 
 Prescott V. Curtis, Mills, 388, 389, 390. 
 
 Prescott V. Hobbs, Covenant, 145. Exceptions, 253. Practice, 472. 
 Preston v. Brew, Constitutional Law, 104. Liquor, 366, 368, 369. 
 
 Nuisance, 415. 
 Set-off, 524. 
 
 Insurance, 322. Practice, 473. Shipping, 526, 627. 
 Evidence, 232, 240. 
 
 Prince v. Puller, 
 Prince v. Ocean Ins, 
 
 Co., 
 Prop'rs of Long 
 
 "Wharf V. Palmer, Deed, 173, 177 
 Pulcifer v. Page, Accession, 4. 
 Pullen V. Bell, Personal Property, 450. Trover, 558. 
 
 Purrington v. Pierce, Dower, 193. 
 
 Purrington v. Pierce, Exceptions, 253, 255. Mortgage, 392. 
 Put. Free School v. > Corporation, 129. Deed, 161, 164, 165. Devise, 
 
 Pisher, ) &c., 182. Executors, &c. 268. Pleading, 456. 
 
 Put. Free School v. > Evidence, 237. Ileal Action, 489, 490. Seizin, 
 
 Fisher, ) &c., 519, 520. 
 
 Put. Free School v. \ New Trial, 412. Real Action, 489, 490. Seizin, 
 
 Fisher, j &c., 620. 
 
 Putnam v. Oliver, Appeal, 23. 
 
 Q. 
 
 xl. 628, Quimby v. Dill, Execution, 262. Lease, 346. "Waste, 577. 
 
 xxviii. 419, Quimby v. Putnam, Limitations, &c., 363. 
 
 E. 
 
 • xxxii. 450, 
 
 XXX. 266, 
 
 xxxvi. 86, 
 
 xxxi. 418, 
 
 xliii. 226, 
 
 xxviii. 127, 
 
 xxxiii. 509, 
 
 xxxviii. 223, 
 
 xxxiv. 201, 
 
 xliii. 318, 
 
 xxxiv. 98, 
 
 xxxvii. 406, 
 
 XXXV. 379, 
 xliii. 678, 
 xxxiv. 205, 
 xxxii. 519, 
 xxxviii. 193, 
 xxxvi. 465, 
 
 xxxii. 173, 
 xxxix. 685, 
 
 Hand v. Tobie, Certiorari, 88. Poor Debtor, 457, 468. 
 
 Randall v. Bradbury, Evidence, 237. 
 
 Randall v. Farnham, Bills, &c., 66. Execution, 260, 267. Mortgage, 397. 
 
 Randall v. Haines, Practice, 467. 
 
 Randall v. Thornton, Law and Fact, 343. Sale, 511. 
 
 Rangely v. Spring, Mortgage, 393. 
 
 Rankin v. Sherwood, Bank, 55, 66. Error, 210, 211. 
 
 Rawson v. Clark, Devise, &c., 182. Dower, 193. Execution, 262, 
 
 263, 265. 
 Rawson v. Lowell, Execution, 261. 
 Rawson V. New Sharon, Costs, 136. 
 
 Rawson v. Piper, Payment, 445. Probate Bonds, 479. 
 
 Raymond v. Sawyer, Actions, &c., 12. Guardian and "Ward, 294. Pro- 
 bate Bonds, 479. 
 
 Contract, 117. Evidence, 334. 
 
 Liens, 355, 356. 
 
 Liens, 362. 
 
 Executors, &c., 273. -"Witness, 694. 
 
 Assignment, 36. Bond, 82, 86. 
 
 Bankruptcy, 69, 61. Covenant, 146, 147. Dam- 
 ages, 166. 
 
 Error, 210. 
 
 Abatement, 3. Bills, &c., 76. Evidence, 234. 
 Limitations, &c., 358. Pleading, 451. Vari- 
 ance, 672. 
 
 Read v. Davis, 
 Redington v. Frye, 
 Reed v. Bachelder, 
 Reed v. Gilbert, 
 Reed v. Nevins, 
 Reed v. Pierce, 
 
 Reed v. Tay, 
 Reed v. Wilson, 
 
XXXVIU 
 
 TABLE OP CASES. 
 
 xxxvu. 
 
 xxxii. 
 
 xliii. 
 
 xlii. 
 
 XXX, 
 •vliii - 
 
 xliii. 
 xxviii. 
 
 314, 
 458, 
 513, 
 
 110, 
 
 157, 
 
 252, 
 177, 
 
 240, 
 273, 
 
 161, 
 463, 
 
 Eeggio v. Day, Trustee Process, 564, 565. 
 
 Remick v. Brown, Poor Debtor, 464, 465. 
 Keynolds v. Chandler 
 
 River Co., Damages, 153. Trespass, 555. 
 
 Rhodes V. School Dis- 
 
 Deed, 161. 
 
 Agency, 16. Assumpsit, 40. Contract, 118, 120. 
 
 Shipping, 525. Waiver, 576. 
 Exceptions, 253. 
 
 trict in Gardiner, 
 Rice V. McLarren, 
 
 xxxii. 560, 
 
 xliii. 206, 
 
 xlii. 589, 
 
 xxxviii. 232, 
 
 xxxiv. 116, 
 
 xl. 43, 
 
 xxxii. 37, 
 
 xxix. 281, 
 
 xxxix. 350, 
 
 xlii. 308, 
 
 xxxvii. 110, 
 
 xxxi. 451, 
 
 xl. 287, 
 
 xxxiii. 496, 
 
 145, 
 
 xxviii. 310, 
 
 xxxii. 578, 
 
 xxxviii. 130, 
 
 xxxiv. 509, 
 
 xxxvii. 312, 
 
 xlii. 209, 
 
 xxxiv. 270, 
 253, 
 
 Writs, &c., 598. 
 
 Damages, 168. Poor Debtor, 461, 465. 
 
 Shipping, 525. 
 
 xix. 382, 
 XXXV. 319, 
 
 xxxviii. 227, 
 
 XXXV. 200, 
 
 xxxiii. 106, 
 
 xl. 114, 
 
 xxxiii. 132, 
 
 xxvii. -557, 
 
 xxxvi. 485, 
 
 xxxi. 454, 
 
 xxxix. 29, 
 
 xxxviii. 686, 
 
 Equity, 200. 
 Will, 590. 
 
 Heirs, 297. 
 
 Rice V. Wallace, 
 Richards v. McKen- 
 
 ney, 
 Richards v. Morse, 
 Richards v. Protection 
 
 Ins. Co., Insurance, 318, 319, 323. 
 
 Richardson v. Beede, Evidence, 229. 
 
 Richardson V.Kimball, Actions, &c., 7. Agency, 18. Assumpsit, 38. 
 Attachment, 48. Officer, 422. Sale, 607, 510, 
 612. Set-off, 521. 
 Richardson v. Rich- 
 ardson, Replevin, 501. 
 Richardson V.Wood- > Devise, &c., 183. 
 burj', 5 Trusts, 568, 570. 
 Richmond Bank t. 
 
 Robinson, Bank, 57, 58. 
 
 Richmond v. Thomas- 
 ton, Evidence, 225, 246, 247, 248. 
 Ricker v. Barry, Deed, 171, 172. Way, 584. 
 Ricker v. Fairbanks, Contract, 118, 119. Damages, 156. 
 
 Appeal, 23. Costs, 134. Justice of the Peace, 
 
 336. Liquor, 365, 367. Mittimus, 391. 
 Divorce, 186. 
 Ripley v. Co. Com'rs, County Commissioners, 142. Exceptions, 258. 
 Ripley v. Levant, Pauper, 438. 
 Roach V. Learned, Evidence, 243. 
 Robbins v. Merritt, Witness, 591, 592. 
 Robbinston v. Lisbon, Actions, &c., 14. Limitations, 358. 
 Roberts v. O'Conuer, Appeal, 23. Liquor, 365. 
 Robinson v. Aim- 
 Actions, &c., 14. 
 Damages, 157. 
 460, 464, 465. 
 Seizin, &c., 520. 
 Liens, 354, 356. 
 
 Witness, 595. 
 
 Ricker, petitioner, 
 Ricker v. Ricker, 
 
 strong, 
 Robinson v. Barker, 
 
 Trover, 558. 
 Evidence, 221. 
 
 Poor Debtor, 
 
 Robinson v. Brown, 
 
 Robinson v. Bunker, 
 
 Robinson v. Eurbush, Set-off, 522 
 
 Robinson v. MiUer, Amendment, 20. 
 
 Robinson v. White, 
 
 Evidence, 228 
 Deed, 172, 174. Evidence, 234. 
 
 256. Practice, 474. 
 Costs, 135. Mortgage, 400, 401. 
 
 Exceptions, 253, 
 
 Practice, 474. Sale, 510. 
 
 Roby V. Skinner, 
 Rockingham Mut. F. 
 
 Ins. Co. V. Bosher, Actions, &c., 12. 
 Rogers v. Humphrey, Contract, 108. 
 Rogers v. Ken. & Port. 
 
 R. R. Co., Constitutional Law, 103. Railroads, 485. 
 
 Rogers v. Ken. & Port. 
 
 R. R. Co., Exceptions, 253. New Trial, 412. 
 
 Rogers v. Libbey, Assumpsit, 39. Estoppel, 214. Evidence, 230. 
 
 Landlord, &c., 341. 
 Rogers v. March, Agency, 17. 
 
 Rogers v. McPhetres, Deed, 167. Evidence, 228. 
 
 RoUins V. Clay, 
 
 RoUins V. Rich, 
 Rollins V. Richards, 
 Rollins V. Stevens, 
 Ross V. Philbrick, 
 Ross V. MansfielB, 
 
 Boom, 85. Corporation, 121, 127. Reversion, &c., 
 
 502. Trespass, 554. 
 Execution, 268, 263. 
 Poor Debtor, 463. 
 Partnership, 433. 
 
 Attachment, 47. Damages, 151. Trespass, 656. 
 Bond, 82. Impounding, 302. • 
 
TABLE OP CASES. 
 
 XXXII 
 
 xxxix. 404, Rouse v. Southard, 
 
 xl. 582, Rowell v. Hayden, 
 
 XXX. 30, Rowell v. Small, 
 
 xxxvii. 42, Koxbury v. Huston, 
 
 xxxix. 312, Boxbury T. Huston, 
 
 xxxT. 116, Rumsey v. Bragg, 
 
 xxxviii. 332, Russell T. Clark, 
 
 XXX. 332, Russell T. Copeland, 
 
 LimitationB, &c., 362. 
 
 Pleading, 454, 455. 
 
 Amendment, 19, 20. Exceptions, 253. 
 
 Equity, 198. Evidence, 232. Pleading, 456. 
 
 Proprietors of Land, 482. 
 Exceptions, 255. Justice of the Peace, 338. 
 
 Landlord, &c., 341, 342. Seizin, &o., 521. 
 Evidence, 222. Exceptions, 253. Practice, 469, 
 
 470. 
 Evidence, 245. 
 Bond, 83, 84. Damages, 157. 
 
 s. 
 
 xxxii. 
 
 164, 
 
 xxxiv. 
 
 14, 
 
 xxix. 
 
 268, 
 
 xxxvii. 
 
 165, 
 
 xxxix. 
 
 258, 
 
 xxxv. 
 
 456, 
 
 xxxi. 
 
 228, 
 
 xxxvi. 
 
 78, 
 
 xxxix. 
 
 398, 
 
 XXX. 
 
 457, 
 
 xli. 
 
 467, 
 
 xxxii. 
 
 536, 
 
 xxxi. 
 
 124, 
 
 xxix. 
 
 70, 
 
 xxxii. 
 
 78, 
 
 xxxviii. 
 
 581, 
 
 xxxiii. 
 
 388, 
 
 xxxiv. 
 
 135, 
 
 xxvii. 
 
 539, 
 
 xl. 
 
 176, 
 
 xxxiv. 
 
 543, 
 
 xxxiv. 
 
 228, 
 
 xxxii. 
 
 28, 
 
 XXXV. 
 
 542, 
 
 xxxiv. 
 
 419, 
 
 xxxiii. 
 
 208, 
 
 xl. 
 
 256, 
 
 xl. 
 
 212, 
 
 xxvii. 
 
 453, 
 
 xU. 
 
 561, 
 
 xK. 
 
 604, 
 
 xxviii. 
 
 22, 
 
 xl. 
 
 291, 
 
 xxxiii. 
 
 575, 
 
 xxxiii. 
 
 214, 
 
 xxvii. 
 
 497,. 
 
 xxxiii. 
 
 485, 
 
 xxviii. 
 
 511, 
 
 xxxiv. 
 
 582, 
 
 XXX. 
 
 27, 
 
 xU. 
 
 173, 
 
 xxxi. 
 
 478, 
 
 Sackett v. Lowell, 
 Saoo V. Gurney, 
 Saco V. Hopldnton, 
 Saco V. Wentwortli, 
 
 Saco T. Woodsum, 
 
 Saoo W. P. Co. V. > 
 
 Goldthwaite, ) 
 
 Sager v. Ports. S. & P. 
 
 & E. B. E. Co's, 
 Sampson v. Bowd. S. 
 
 M. Co., 
 Sampson v. Curtis, 
 Sanborn v. Keazer, 
 Sanborn v. Merrill, 
 Sanford v. Augusta, 
 Sanford v. Lebanon, 
 Sargent, v. Hampden, 
 Sargent v. Hampden, 
 Sargent v. Hampden, 
 
 Sargent v. Pomroy, 
 Sargent v. Roberts, 
 Sargent v. Salmond, 
 
 V. Bangor, 
 Sawtelle v. Jewell, 
 Sawtelle v. Sawtelle, 
 Sawyer v. Fisher, 
 Sawyer v. Freeman, 
 
 Sawyer v. Goodwin, 
 Sawyer v. Knowles, 
 Sawyer v. Lawrence, 
 Sawyer v. Nichols, 
 Sayward v. Warren, 
 Scammon v. Scammon, 
 Scarboro' v. Co. Com., 
 Scott V. Perkins, 
 Scudder v. Balkam, 
 Scudder v. Davis, 
 Searle v. Preston, 
 Sellars v. Carpenter, 
 Sellars v. Carpenter, 
 Severance v. Hammatt, 
 Sewall V. Nichols, 
 Sewall V. Tarbox, 
 Shapleigh v. Abbott, 
 Shaw V. Berry, 
 
 Sale, 508. 
 
 Costs, 133. Statutes, 534. 
 
 Attachment, 43. Execution, 260. 
 
 Bond, 81. Constitutional Law, 102, 103. Liquor, 
 
 369. 
 Bond, 81, 82, 85. Constitutional Law, 105. Costs, 
 
 133. Liquor, 371. 
 Partition, 426. Prescription, 476. Beal Action, 
 
 490. 
 
 Bailment, 54. 
 
 Corporation, 121, 130. 
 
 Actions, &c., 13. Bankruptcy, 61. 
 
 Poor Debtor, 462, 465. 
 
 Frauds, Statute of, 289. Proohein Ami, 481. 
 
 Husband and "Wife, 301. "Way, 582. 
 
 Pauper, 440, 442, 443. 
 
 Arbitration, 25. 
 
 Actions, &c., 10. 
 
 Attorneys, &c., 51. Evidence, 225, 243. Interest, 
 
 325. Writs, &c., 597. 
 Damages, 157. Poor Debtor, 462, 464, 465. 
 Dower, 191. Real Action, 488. Seizin, &c., 519. 
 Equity, 196. Evidence, 237. Judgment, 330. 
 
 Surety, 540. 
 Town, 550. 
 
 Abatement, 1. Arrest, 32. 
 Evidence, 234. 
 Liens, 351, 
 Arbitration, 27, 28. Insurance, 316. Shipping, 
 
 529, 531. 
 Amendment, 20. Pleading, 453. Trespass, 557. 
 Guardian and Ward, 294. Presumption, 477. 
 Evidence, 230. Trustee Process, 567. 
 New Trial, 412. 
 Replevm, 498, 500. 
 Title, &c., 548. 
 
 County Commissioners, 140, 142. 
 Deposition, 180. Trover, 559. Will, 588. 
 Liens, 356. 
 
 Abatement, 1. Trustee Process, 561. 
 Attachment, 49. Liens, 351. 
 Dower, 192. Evidence, 218. Practice, 475. 
 Evidence, 217. 
 
 Insolvent Estates, 314. Liens, 351. 
 Attachment, 48. Liens, 353, 356. Replevin, 497. 
 Set-off, 522. 
 
 Law and Fact, 344. "Verdict, 673. 
 Bailment, 54. 
 
xl 
 
 TABLE OP CASES. 
 
 XXXT. 
 
 279, 
 
 Shaw V. Berry, 
 
 xxxyiii. 
 
 484, 
 
 Shaw V. Emery, 
 
 xlii. 
 
 69, 
 
 Shaw V. Emery, 
 
 xliii. 
 
 371, 
 
 Shaw V. Erskine, 
 
 xli. 
 
 495, 
 
 Shaw V. Hussey, 
 
 xxxiv. 
 
 199, 
 
 Shaw V. Keep, 
 
 XXX. 
 
 105, 
 
 Shaw V. Reed, 
 
 xli. 
 
 102, 
 
 Shaw V. tJsher, 
 
 XXXV. 
 
 223, 
 
 Sheldon v. White, 
 
 xlu. 
 
 577, 
 
 Shepard v. HuU, 
 
 xxxii. 
 
 63, 
 
 Shepherd v. Adams, 
 
 xxxi. 
 
 541, 
 
 Shirley v. Walker, 
 
 xxxii. 
 
 679, 
 
 Shorey v. Hussey, 
 
 xxxiv. 
 
 660, 
 
 Shumway v. Heed, 
 
 XXX. 
 
 253, 
 
 Sibley v. Lumbert, 
 
 xli. 
 
 415, 
 
 Sidclinger v, Hagar, 
 
 xli. 
 
 373, 
 
 Simmons v. Curtis, 
 
 xxvii. 
 
 496, 
 
 Simmons v. Moulton, 
 
 xxxix. 
 
 155, 
 
 Simonds v. Henry, 
 
 xxxiv. 
 
 50, 
 
 Simonton v. Gray, 
 
 xxxiii. 
 
 649, 
 
 Simpson v. Bowden, 
 
 xl. 
 
 276, 
 
 Sims V. Howard, 
 
 xxxiii. 
 
 307, 
 
 Skeele v. Stanwood, 
 
 xxxvi. 
 
 164, 
 
 Skowhegan Bank v. 
 Baker, 
 
 xxxviii. 
 
 213, 
 
 Small V. Clifford, 
 
 xxxi. 
 
 267, 
 
 Small V. Pennell, 
 
 xl. 
 
 274, 
 
 Small V. Sacramento 
 N. & M. Co., 
 
 xxxi. 
 
 493, 
 
 Small V. Small, 
 
 xxxv. 
 
 400, 
 
 Small V. Small, 
 
 xxxvii. 
 
 504, 
 
 Small V. Thurlow, 
 
 xli. 
 
 507, 
 
 Small V. Trickey, 
 
 xl. 
 
 442, 
 
 Smith V. Abbott, 
 
 xxxvii. 
 
 298, 
 
 Smith V. Berry, 
 
 xxvii. 
 
 289, 
 
 Smith V. Bodfish, 
 
 xxxix. 
 
 136, 
 
 Smith V. Bodfish, 
 
 xxxvii. 
 
 281, 
 
 Smith V. Cahoon, 
 
 xxxii. 
 
 123, 
 
 Smith V. Cannell, 
 
 xlii. 
 
 395, 
 
 Smith V, Co. Com., 
 
 xxxiv. 
 
 520, 
 
 Smith V. Davenport, 
 
 xxxviii. 
 
 459, 
 
 Smith V. Davis, 
 
 xxxiii. 
 
 384, 
 
 Smith V. Dillingham, 
 
 xxxvi. 
 
 298, 
 
 Smith V, Eaton, 
 
 xxix. 
 
 422, 
 
 Smith V. Ellis, 
 
 xU. 
 
 405, 
 
 Smith V, Gorman, 
 
 xxxiv. 
 
 443, 
 
 Smith V. Guild, 
 
 xxvii. 
 
 237, 
 
 Smith V. Kelley, 
 
 xli. 
 
 314, 
 
 Smith V, Ladd, 
 
 XXX. 
 
 137, 
 
 Smith V. Lambert, 
 
 xxxi. 
 
 512, 
 
 Smith V. Fiske, 
 
 xxxvii. 
 
 546, 
 
 Smith V. Tiint, 
 
 xxxi. 
 
 287, 
 
 Smith V, MitcheU, 
 
 Executors, &c,, 273. Witness, 595, 
 
 Husband and Wife, 299. 
 
 Evidence, 243. Witness, 597. 
 
 Mortgage, 392. 
 
 Devise, &c., 183. Will, 588, 589, 
 
 Bond, 84. 
 
 Actions, &o., 8. Contract, 107. 
 
 Abatement, 2, 3. Arrest, 32. Pleading, 456, 
 Writs, &c., 598. 
 
 Estoppel, 216. 
 
 Exceptions, 258. 
 
 Equity, 198, 209, Mortgage, 394, 
 
 Actions, &c.,. 10. Executors, &c., 268, 271. Pen- 
 sion, 449. 
 
 Abatement, 3. Evidence, 218. Practice, 467. 
 Replevin, 601. Witness, 596. 
 
 Bills, &c., 67, 79. Evidence, 232. 
 
 Bills, &c., 65. Evidence, 248, 249. Limitations, 
 &o., 363. 
 
 Evidence, 233. Mills, 386. Water Power, 577. 
 
 Assignment, 37. Partnership, 431, 434. 
 
 Actions, &c., 7. Assignment, 36. 
 
 Contract, 112. 
 
 Dower, 188, 190. Merger, 383. Mortgage, 394, 
 398, 399. 
 
 Assumpsit, 39. Contract, 106. Reversion, &c., 
 602. 
 
 Shipping, 531. 
 
 Vide Appendix. 
 
 Bills, &c., 73. 
 
 Joint Tenants, &c., 326, 327. 
 County Commissioners, 138, 139. 
 Way, 578. 
 
 Evidence, 217. 
 
 Exceptions, 258. Nonsuit, 414. 
 
 Divorce, 186. 
 
 County Commissioners, 141, Lands reserved, &c., 
 
 342. Public Lots, 483. 
 Abatement, 2. Arbitration, 26. 
 Arbitration, 29. 
 Judgment, 330. Nonsuit, 414. 
 Judgment, 331. Officer, 421, 423. 
 Real Action, 490. Tax, 543. 
 Attachment, 47. Evidence, 239, 247. OiEcer, 420. 
 Trustee Process, 662, 663, 667. 
 Covenant, 146. Dower, 188. 
 Amendment, 21. Certiorari, 88, 89, 90. County 
 
 Commissioners, 142, 143. 
 Contract, 119. Shipping, 530. 
 Abatement, 3. Waiver, 575, 
 Replevin, 499. 
 Jurisdiction, 334. Scire Facias, 617. Trustee 
 
 Process, 561, 666. 
 Equity, 197, 200. Set-off, 621. 
 Arbitration, 27, 31. Costs, 134. Exceptions, 254. 
 
 Husband and Wife, 299. Married Woman, 383. 
 
 Practice, 471. 
 Estoppel, 214. Executors, 275. 
 Assignment, 34. Mortgage, 396, 398, 400, 403. 
 Deed, 168. 
 Actions, &c., 8. Devise, 184. Executors, &c., 
 
 271. Probate Courts *80. 
 Actions, &c., 10. Limitations, &c., 369. 
 Bastardy, 63. 
 Attachment, 48. 
 
TABLE OP CASES. 
 
 xli 
 
 xxxviii, 468, 
 
 xli. 452, 
 
 xxxvii. 462, 
 
 xl. 415, 
 
 XXXV. 287, 
 
 xxvii. 145, 
 
 XXIX, 
 
 xxxii. 
 
 xxxi. 
 
 xxxii. 
 xxxvii. 
 xxxiii. 
 
 xxxii. 
 
 xxxix. 
 
 xxxiii. 
 
 xxxi. 
 
 360, 
 
 177, 
 
 212, 
 
 23, 
 
 11. 
 
 48, 
 
 246, 
 
 242, 
 
 148, 
 
 272, 
 
 XXX. 337, 
 
 xl. 307, 
 xxxvi. 161, 
 xxxii. 275, 
 xxviii. 193, 
 
 xxxu. 
 xxxvii. 
 xxxvi. 
 xxxvi. 
 
 XXIX. 
 
 XXX. 
 
 xxix. 
 
 xxxviii. 
 
 xxxvi. 
 
 xliii, 
 
 xxix. 
 
 xxxii. 
 
 xliii. 
 
 XXX. 
 
 xxviii, 
 xxxviii. 
 
 140, 
 454, 
 160, 
 328, 
 399, 
 381, 
 260, 
 383, 
 468, 
 118, 
 458, 
 192, 
 
 xxxviii. 372, 
 
 xliii. 352, 
 
 xlii. 569, 
 
 XXXV. 89, 
 
 Order, 424. 
 Corporation, 128. 
 Executors, &c., 275. 
 Tax, 545. Voluntary Payment, 
 
 Pleading, 456. 
 
 122, 
 128, 
 84, 
 64, 
 xliii, 575, 
 XXX, 547, 
 
 xxix, 56, 
 
 XXX. 462, 
 
 xxviii, 300, 
 
 xxix. 228, 
 xxxiv. 153, 
 xxvii. 405, 
 
 xxxii. 211, 
 xxxix, 564, 
 
 xxix. 531, 
 
 xli, 352, 
 
 xxix, 148, 
 
 xxxiii, 283, 
 
 Smith v. Morgan, Evidence, 221, 251. Witneaa, 691. 
 
 Smith V. Parker, Fraud, &c,, 287. 
 
 Smith V. Poor, Actions, &c., 12. 
 
 Smith T. Poor, Actions, &c., 13. 
 
 Smith V. Porter, Assignment, 35. 
 
 Smith V. Eeadfield, Evidence, 248". 
 
 574. 
 Smith V. Ehodes, Error, 210, 211. 
 Smith V. Eines, Surety, 640. 
 
 Smith V. Eowe, Forcible Entry, Ssc. 283. Landlord, &o,, 341. 
 
 Smith V. Smith, Arbitration, 28, 30. Evidence, 236. 
 
 Smith V. Stanley, Dovfer, 189. Mortgage, 398. 
 Smith V. State, Abortion, 4. Felony, 276. Murder, 409. 
 
 Smith V, Sweetsir, Mortgage, 394. 
 Smith V, Taylor, Bills, &c., 66. Evidence, 222. 
 
 Smith V. Virgin, Equity, 201, 209. Joint Stock Associations, 326. 
 
 Smyth V. Titcomb, Collector, 93. Constitutional Law, 103. Manda- 
 mus, 379. School District, 514. 
 Snell V, Bangor Steam 
 
 Navigation Co,, Verdict, 573. 
 Snell v, Snell, Abatement, 3. 
 
 Snow V. Cunningham, Attachment, 46, 47. 
 Snowman v.Wardwell, Contract, 110, 111. New Trial, 411. 
 Soper V. School Dis, 
 
 No, 9, in Livermore, School District, 514. 
 Soper V. Veazie, Evidence, 241. 
 
 Soule V. Bonney, ' Bills, &c,, 78. 
 Southard v. Piper, Married Woman, 382, 
 Southard v. Plummer, Married Woman, 382. 
 Southard v. Eicker, Way, 579. 
 So. Bay Mead, Dam 
 
 Co. V. Gray, Corporation, 121, 122, 130. Estoppel, 215. 
 
 Southard v, Wilson, Bills, &e,, 72. Mortgage, 402. 
 Southerland V.Jackson, Actions, &c,, 9. 
 So. W. Bend Bridge 
 
 Bridges, 86. 
 
 Eeplcvin, 498. 
 
 Joint Tenants, &c,, 326, 
 
 Deed, 175. Execution, 259, Joint Tenants, &c,, 
 327. 
 
 Spaulding v, Adams, liens, 356. 
 Spaulding v. Good- 
 
 spead, 
 Spear v. Eobinson, 
 
 Co. V. Hahn, 
 Southwick V. Smith, 
 Soutter V. Atwood, 
 Soutter V. Porter, 
 
 Town, 
 
 Judgment, 332. 
 
 Fisheries, 279. Justice of the Peace, 336. 
 651. 
 
 Deed, 177. 
 
 Attorney, 49. Deed, 160, Estoppel, 213. 
 
 Condition, 97. Constitutional Law, 101. Liens, 
 351, 352, 356. 
 
 Deed, 162. Fraud, &c,, 285. 
 
 Bankruptcy, 69, 60. 
 
 Mortgage, 393, 399, 400, 
 
 Costs, 135. Mortgage, 400, 401, 
 
 Assumpsit, 39. Practice, 467. 
 Springer v. Toothaker, Surety, 539. 
 Sproule V. Merrill, Actions, &c., 7. Bills, &c., 68, 76. 
 Stackpole v, Curtis, MQls, 385, 
 Stanley v. Drinkwater, Attachment, 45, 48, 49. 
 Stanley v. Kenipton, Limitations, &c,, 360. Usury, 671, 
 
 Poor Debtor, 458. 
 
 Spinney v. Marr, 
 Spofford V. Hobbs, 
 Spofford V. True, 
 
 Spofford V. Weston, 
 Spooner v. Eussell, 
 Sprague v. Graham, 
 Sprague v. Graham, 
 Spring V. Davis, 
 
 Stanley v. Eeed, 
 Stanwood v. Wood- 
 ward, 
 Staples V. Wheeler, 
 Starbird v. Curtis, 
 Starbird v. Eaton, 
 
 Liens, 354. 
 
 Contract, 117. Damages, 165. Evidence, 217. 
 
 Agency, 17, Assumpsit, 40. 
 
 Error, 211, 212, Eecord, 494, 495. Eeview, 504. 
 
 Starbird v. Frankfort, Husband and Wife, 301. Pleading, 451. 
 F 
 
xlii 
 
 TABLE OP CASES. 
 
 xxix. 
 
 xl. 
 
 xxxiv. 
 
 xli. 
 xxxviii. 
 
 xxxu. 
 
 XXX. 
 
 XXXT. 
 
 xxxiv. 
 xxxiii. 
 xxxix. 
 xli. 
 xxxiv. 
 xxxiv. 
 
 XXXV. 
 
 xl. 
 
 xxxi. 
 
 xli. 
 
 xl. 
 
 xxxviii. 
 
 368. 
 604, 
 435, 
 52, 
 341, 
 
 633, 
 692, 
 561, 
 630, 
 132, 
 242, 
 243, 
 146, 
 322, 
 344, 
 235, 
 
 Starks v. New Sharon, Pauper, 438. 
 
 Starrett v. Jameson, Guaidian and "Ward, 293. 
 
 County Commissioners, 142. 
 
 Complaint, 96. 
 
 Evidence, 240. Indictment, 304, 309 
 tions, &c., 368. 
 
 "Way, 583. 
 
 Judgment, 330. 
 
 Exceptions, 263. 
 
 Libel, &c., 347. 
 
 Conspiracy, 99. 
 
 Indictment, 309 
 
 "Way, 579. 
 
 District Court, 186 
 
 Rape, 487. 
 
 Liquor, 372. Eecognizance, 492, 493 
 
 Kiot, 505 
 
 State V. Anthoiije, 
 State V. Baker. 
 State V. Bangor, 
 
 State V. Bangor, 
 State V. Bangor, 
 State V. Barnes, 
 State v. Barnes, 
 State V. Bartlett, 
 State V. Beeman, 
 State V. Bigelow, 
 State V. Bifiington, 
 State V. Blake, 
 State V. Boies, 
 State V. Boies, 
 
 Limita- 
 
 Indictment, 308. Practice, 472. 
 Pleading, 456. 
 Indictment, 305. 
 
 Town, 661. "Way, 679, 683. 
 
 Jurisdiction, 334. 
 
 223, 383, State v. Bonney, Indictment, 307, 309. Jurisdiction, 334. 
 
 105, State v. Bonney, 
 154, State v. Bradbury, 
 620, 522, State v. Brown, 
 
 xxxu. 
 -xxxix. 
 
 xxxii. 
 
 xliii. 
 xxxiii. 
 
 XXX. 
 
 xxxi. 
 
 xxxvii. 
 
 xxxiii. 
 
 XXX vi. 
 
 xli. 
 
 xxxvii. 
 
 xxxii. 
 
 xliii. 
 
 xxxvii. 
 xxxix. 
 
 Witness, 596. 
 "Way, 580, 684. 
 Complaint, 96. Liquor, 367. 
 536, State v. Brown, Recognizance, 492, 493. Scire Facias, 518. 
 
 692, State v. Burgess, Indictment, 306. 
 
 574, State v. Burke, Indictment, 306, 308, 309, 310. Judgment, 330. 
 
 262, State v. Carter, Liquor, 371. "Warrant, &c., 576. 
 
 279, State V. Clements, Deed, 171. Law and Fact, 344. 
 78, State v. Conley, Exceptions, 252, 254. Indictment, 303, 306, 306, 
 
 307, 308. Murder, 409. Venue, 672. 
 State T. Coombs, Complaint, 95. Constitutional Law, 104. Liquor, 
 367. 
 State V. Cornville, Way, 680, 681. 
 State V. Coyle, Vide Appendix. 
 
 State V. Crowell, Complaint, 95. Liquor, 366, 367. 
 
 State V. Cunningham, Evidence, 249. 
 
 526, 529, 
 
 427, 
 427, 
 115, 
 355, 
 244, 
 498, 
 366, 
 166, 
 617, 
 586, 
 198, 
 
 461, 
 353, 
 
 517, 
 xxxiii. 527, 
 xxxvii. 149, 156, State v. 
 
 State v. Day, 
 State V. Dorr, 
 State V. Drake, 
 State V. Elden, 
 State V. Fairfield, 
 State V. Fielding, 
 State V. Freeport, 
 
 State V. Gorham, 
 State V. Gray, 
 
 State V. Greenleaf, 
 State V. Gurney, 
 
 xliii. 282, State v. Hadlock, 
 
 XXX. 65, State v. Haines, 
 
 xxxix. 107, State v. Hall, 
 
 xxxix. 337, State v. Hanson, 
 
 xxxiv. 36, State v. Hart, 
 
 XXXV. 129, State v. Hartwell, 
 
 xxxiii. 127, State v. Haskell, 
 
 xlii. 287, State v. Hasty, 
 
 xxix. 457, State v. Hay, 
 
 xxxi, 396, State v. Hewett, 
 
 xxxviii. 21, State v. Hinckley, 
 
 xxxix. 212, State v. Hobbs, 
 
 xl. 438, State v. Homer, 
 
 xxxiv. 600, State v. Hutchinson, 
 
 xxxvi. 261, State v. Hutchinson, 
 
 Evidence, 250. Indictment, 307. 
 
 Cheating, &c., 90. Indictment, 307. 
 
 Seal, &c., 618. 
 
 Indictment, 310. 
 
 Liquor, 370, 371, 373. 
 
 Indictment, 309. 
 
 Aquatic Eights, 25. Constitutional Law, 103. 
 Nuisance, 416. Statutes, 633. 
 
 Indictment, 302. Mandamus, 379. Town, 649. 
 
 Evidence, 219. Limitations, &c., 359. New Tri- 
 al, 410. 
 
 Evidence, 244. Liquor, 367. 
 
 Liquor, 368. 
 Gurney, Appeal, 23. Const. Law, 104. Indictment, 304^ 
 307. Judgment, 330. Liquor, 369. 
 
 Indictment, 311. Liquor, 372. 
 
 Indictment, 307, 308, 309. 
 
 Liquor, 370, 373. Practice, 473. 
 
 Perjury, 449. 
 
 Indictment, 306, 309. 
 
 Jurisdiction, 334. Justice of the Peace, 336. Re- 
 cognizance, 491, 492. 
 
 Embezzlement, 196. Jurisdiction, 334. 
 
 Evidence, 220. " 
 
 City of Portland, 91. 
 
 Conspiracy, 99. Indictment, 306, 308. 
 
 Indictment, 310. Practice, 467. 
 
 Complaint, 96. Judgment, 330. Limitations, &c. 
 359. Rules of Court,.506. 
 
 Abatement, 2. Evidence, 238. 
 Vide State v. Keen. 
 
 Adultery, 15. Indictment, 304, 307. 
 
TABLE OF CASES. 
 
 xliii 
 
 XXX, 29, State v. iTackson, 
 
 xxxii. 40, State v. Jackson, 
 
 xxxiii. 259, State v. Jackson, 
 
 xxxix. 291, State v. Jackson, 
 
 xxxiv. 500, State v. Keen, 
 
 xliii. 11, State v. Knight, 
 
 xxxiii. 
 
 536, 
 
 State T. Lane, 
 
 xxxviii. 
 
 432, 
 
 State v. Leach, 
 
 xxxii. 
 
 183, 
 
 State T. Leavitt, 
 
 XXXV. 
 
 195, 
 
 State V. Leighton, 
 
 xxxviu. 
 
 200, 
 
 State V. Lightbody, 
 
 XXX vii. 
 
 246, 
 
 State V. Lull, 
 
 xxxiii. 
 
 267, 
 
 State V. Madison, 
 
 xxxi. 
 
 469, 
 
 State V. Magrath, 
 
 XXXV. 
 
 225, 
 
 State V. Maher, 
 
 xl. 
 
 133, 
 
 State V. McAloon, 
 
 xlii. 392, State v. McKenzie, 
 xxxiv. 210, State y. McNaUy, 
 
 xxxvii. 329, State v. Merrill, 
 
 xxxn . 
 
 xl. 
 
 xxxvii. 
 
 xxix. 
 
 xxxix. 
 
 xxxv. 
 
 xxxvii. 
 
 xxxi. 
 
 xxxii. 
 
 xlii. 
 
 xxxiii. 
 
 xxxviii. 
 
 xxix. 
 
 2CXXV. 
 
 xxxi. 
 xxxiv. 
 xxxiii. 
 
 55, 57, State 
 129, State v. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State V. 
 
 State "V. 
 
 State V. 
 
 468, 
 329, 
 359, 
 9. 
 361, 
 401, 
 439, 
 384, 
 361, 
 296, 
 84, 
 489, 
 
 320, 
 564, 
 
 V. Milo, 
 
 Moran, 
 
 Neal, 
 
 Nelson, 
 
 Nutting, 
 
 Palmer, 
 
 Payson, 
 
 Philbrick, 
 
 Phinney, 
 
 Phinney, 
 
 Pike, 
 
 Putnam, 
 
 Bicker, 
 
 Eeed, 
 
 Bipley, 
 
 Eoberts, 
 
 Robinson, 
 
 xxxix. 150, State v. Eobinson, 
 
 xxxn. 
 
 xxxii. 
 xxxix. 
 xxxvi. 
 
 xxxi. 
 
 xxxii. 
 
 xxxii. 
 
 xxxviii. 
 xxxvii. 
 
 xl. 
 xxxi. 
 xxxiii. 
 xxxiii. 
 xxxvi. 
 xxxviii. 
 xxxv. 
 xxxv. 
 xxxvi. 
 
 429, 
 583, 
 68, 
 225, 
 523, 
 570, 
 369, 
 
 30, 
 228, 
 
 559, 
 515, 
 654, 
 639, 
 128, 
 298, 
 205, 
 81, 
 563, 
 
 State V. -Sargent, 
 State V. Savage, 
 State V. Scanneil, 
 State V. Seymour, 
 State V. Shaw, 
 State V. Shaw, 
 State V. Smith, 
 
 State V. Spencer, 
 State V. Staples, 
 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 State V. 
 
 Stevens, 
 
 Stewart, 
 
 Straw, 
 
 Suhur, 
 
 Symonds, 
 
 Taggart, 
 
 Thurston, 
 
 Tibbetts, 
 
 Tibbetts, 
 
 Indictment, 308. 
 
 Indictment, 303, 309. 
 
 Appeal, 23. Costs, 135. 
 
 Indictment, 306, 307, 308, 310. Jurisdiction, 335. 
 Statutes, 634. 
 
 Indictment, 304. Liquor, 369. 
 
 Evidence, 226, 251, 252. Jury, 335. Law and 
 Fact, 343. Practice, 472, 473, 474. Presump- 
 tion, 477. Witness, 697. 
 
 Complaint, 95. Liquor, 368. Recognizance, 492, 
 493. 
 
 Complaint, 96. 
 
 Indictment, 306. 
 
 Schools, 613. 
 
 Grand Jury, 291. Indictment, 303, 310. 
 
 Evidence, 250. Exceptions, 264. Practice, 473. 
 
 Evidence, 249. Practice, 473. 
 
 Recognizance, 491. 
 
 Amendment, 21. Liquor, 367. Record, 494. 
 
 Indictment, 308. Judgment, 330. Rules of Court, 
 506. 
 
 Indictment, 308. 
 
 Officer, 417, 423. Seal, &c., 618. Warrant, &o., 
 676. Witness, 596. 
 
 By-laws, 87. City of Portland, 92. Complaint, 
 96. Indictment, 310. Judgment, 332. 
 
 Indictment, 306, 307. Way, 683. 
 
 Complaint, 96. Indictment, 310. 
 
 Murder, 409. 
 
 Indictment, 304, 306, 307, 308. 
 
 Exceptions, 255. Indictment, 310. 
 
 Indictment, 306. 
 
 Indictment, 305, 310. 
 
 Cheating, &c., 90. Indictment, 307. 
 
 Pleading, 456. 
 
 Indictment, 311. Officer, 420. Verdict, 673. 
 
 Malicious Mischief, 377. 
 
 Indictment, 308, 309, 310. Liquor, 373. 
 
 Accessory, 5. Felony, 276. 
 
 Complaint, 95. Liquor, 369. 
 
 Conspiracy, 99. Indictment, 306, 308. 
 
 Indictment, 305, 306. 
 
 Complaint, 95. Constitutional Law, 102. Liquor, 
 368, 369. 
 
 Indictment, 306. Liquor, 369, 370, 371. Prac- 
 tice, 473. 
 
 Evidence, 223, 249. 
 
 Indictment, 307. 
 
 Accessory, 6. Indictment, 310. 
 
 Burglary, 87. 
 
 Curtilage, 149. 
 
 Liquor, 367, 372, 373. 
 
 Evidence, 226. Felony, 276. Indictment, 305, 
 309. Murder, 409. 
 
 Complaint, 96. Liquor, 371. Warrant, &c., 576. 
 
 Justice of the Peace, 336. Liquor, 371. War- 
 rant, &c., 676. 
 
 Indictment, 303, 306. 
 
 Complaint, 96. Liquor, 367. 
 
 Exceptions, 253. Practice, 472. Riot, 505. 
 
 Lord's Day, 376. Recognizance, 491. 
 
 Grand Jury, 291. Indictment, 303, 310. 
 
 Indictment, 303, 308, 309. 
 
 Adultery, 16. Indictment, 304. 
 Evidence, 232. Presumption, 477. 
 
 Vide Appendix. 
 
xliv 
 
 TABLE OP CASES. 
 
 XXXVUl. 
 
 xxxiv. 
 
 xxxiii. 
 xxxix. 
 
 xliii. 
 
 XXX. 
 XXX. 
 
 xlii. 
 
 xxxu. 
 
 xxxiv. 
 
 xxxiii. 
 
 xxxi. 
 
 xlii. 
 
 xlii. 
 
 261, State T. TTpliam, 
 166, State v. Wall, 
 195, State v. Walker, 
 30, State V. Warren, 
 54, 70, State v. Waters, 
 
 XXVUl. 
 
 xxxix. 
 xxvii. 
 
 xliii. 
 •xxxvi. 
 xxxiv. 
 
 xliii. 
 
 XXXV. 
 
 xU. 
 
 XXX. 
 
 xxxiv. 
 
 xxviii. 
 
 xxxiii. 
 
 xlii. 
 
 xxxviii. 
 
 xxxiv. 
 
 xK. 
 
 xxxix. 
 xH. 
 
 xxxvm. 
 xxxi. 
 
 sli. 
 
 XXX. 
 xxxiv. 
 
 xxxi. 
 
 xxxi. 
 xxxiii. 
 
 XXXV. 
 
 xxxiii. 
 
 xxix. 
 
 xxvii. 
 
 xxxiii. 
 
 XXX. 
 
 xxxvii. 
 xxxii. 
 
 XXX. 
 
 XXXV. 
 
 258, 
 
 182, 
 
 484, 
 
 9, 
 
 581, 
 293, 
 200, 
 62, 
 130, 
 132, 
 
 353, 
 
 218, 
 420, 
 266, 
 
 133, 
 440, 
 176, 
 226, 
 376, 
 506, 
 486, 
 404, 
 344, 
 259, 
 
 94, 
 248, 
 593, 
 349, 
 287, 
 
 131, 
 265, 
 
 386, 
 578, 
 409, 
 
 289, 
 
 69, 
 
 32, 
 
 422, 
 
 538, 
 
 678, 
 
 87, 
 
 398, 
 
 62, 
 387, 
 
 78, 
 438, 
 
 35, 
 112, 
 
 80, 
 462, 
 176, 
 
 State V. Weatherby, 
 State V. Weeks, 
 State V. Williams, 
 State V. Wilson, 
 
 State V. Wing, 
 State V. Woodward, 
 State V. Wormwell, 
 State V. Worthing, 
 Stedman v. Perkins, 
 Stedman v. Vickery, 
 
 Stetson V. Howe, 
 
 Evidence, 233, 251. Practice, 470. 
 
 Law and Fact, 344. 
 
 Evidence, 221. Indictment, 309. 
 
 Curtilage, 150. 
 
 Assault, &c., 33. Constitutional Law, 103. In- 
 dictment, 310. Murder, 409. Verdict, 673. 
 
 Adultery, 15. Divorce, 187. 
 
 Indictment, 309. Malicious Mischief, 376. 
 
 Jury, 335. Malicious Mischief, 377. 
 
 Colonial Ordinance, 93. Deed, 168. Estoppel, 216. 
 Perry, 278. Plats, 232. Justice of the Peace, 
 338. Kiparian Eights, 606. Way, 678, 685. 
 
 Practice, 468. 
 
 Liquor, 368. Witness, 694. 
 
 Kecognizance, 491. 
 
 Indictment, 309. 
 
 Liens, 355. Mortgage, 408. 
 
 Bill of Sale, 81. Trustee Process, 663, 564, 565, 
 567, 568. 
 
 Actions, &c., 10. Assumpsit, 39. Officer, 423. 
 
 Stevens v. Bachelder, Deed, 162. Execution, 265. Verdict, 574. 
 
 Set-off, 523. 
 
 Criminal Law, 149. Law and Fact, 342. 
 cious Prosecution, 377. Schools, 613. 
 
 Bank, 55. Bills, Sec, 72. 
 
 Fraud, &c., 287. 
 Stevens v.McNamara, Estoppel, 215, 216. Life, 357. Tax, 544. 
 
 Stevens v. Blen, 
 Stevens v. Fassett, 
 
 Stevens v. Hill, 
 Stevens v. Hinckley, 
 
 Mali- 
 
 Stevens V. Rollins, 
 Stevens v. Whittier, 
 Stewart v. Hanson, 
 Stewart v. Waldron, 
 Stickney v. Bangor, 
 Stiles V. Sherman, 
 Stimpson v. Thomas- 
 ton Bank, 
 Stinsou V. Gardiner, 
 Stinson v. Gardiner, 
 Stinson v. Stinson, 
 Stockbridgev. Crooker, Shipping, 531. 
 Stoddard v. Gage, Arbitration, 26, 29 
 149. 
 McLanathan, Writs, &c., 598. 
 
 Partnership, 435. 
 
 Assumpsit, 40. Mortgage, 407. 
 
 Evidence, 242, 243, 247. Mortgage, 405, 406. 
 
 Arbitration, 30. 
 
 Appeal, 23. Tax, 545. 
 
 Actions, &c., 11. 
 
 Estoppel, 213. 
 Covenant, 148. 
 Way, 683. 
 Distribution, &c., 185. 
 
 Pleading, 466. 
 
 Heirs, 297. Lease, 345. 
 Bill of Sale, 81. Covenant, 
 
 Stone T< 
 Stone V, 
 
 North, 
 
 Offer 
 
 Devise, &c., 183. Executors, &o., 269. Will, 
 690. 
 
 Sale, 507, 608, 609. 
 
 Evidence, 246. Exceptions, 253, 265. 
 
 Agency, 16, 18. Bailment, 54. Costs, 133. 
 to be defeulted, 416. 
 
 Executors, &c., 268. 
 
 Mortgage, 401, 402. Title, &o., 648. 
 
 Bills, &c., 64. 
 
 Covenant, 145. Damages, 166. 
 
 Exceptions, 263. Surety, 639. 
 
 Certiorari, 88. 
 
 Actions, &c., 11. Evidence, 231, 249. Practice, 
 469. Witness, 697. 
 Stuart V. McDougald, Witness, 593, 695. 
 Sturtevant v. Merrill, Fence, 276, 277. Trespass, 664. 
 Sturdivant v. Smith, Assumpsit, 39. Shipping, 529. 
 Sturdivant v. Tallman, Probate Account, 478. Probate Court, 479, 480. 
 Sullivan v. Park, Estoppel, 215. Liens, 352. Liquor, 365. 
 
 Sumner v. Bachelder, Mortgage, 405. 
 
 Sumner v. Co. Com., Certiorari, 89. County Comm'rs, 141. Way, 579. 
 Sutherland v. Jackson, Costs, 136. Deed, 170. Easement, 194. 
 Sutherland v. Jackson, Deed, 170. 
 Swanton v. Eeed, Shipping, 628. 
 
 Stone V. Peacock, 
 Stone V. Redman, 
 Stone V. Waitt, 
 
 Storer v. Blake, 
 Storer v. Little, 
 Stowe V. Colbum, 
 Stowell V. Bennett, 
 Stowell V. Goodnow, 
 Strong V. Co. Com., 
 Stuart V. Lake, 
 
TABLE OP CASES. 
 
 xlv 
 
 xxxiv. 388, Sweeney v. Miller, 
 
 xxxi. 288, Sweetser y. Kenney, 
 
 xxxii. 464, Sweetser T. Keniiey, 
 
 xxxiii. 446, Sweetser v. Lowell, 
 
 xxxui, 
 xxxiv 
 xxvii. 
 
 481, 
 178, 
 286, 
 
 Swett v. Stubbs, 
 Swett V. Stubbs, 
 Swift V. Luce, 
 
 xxxTU. 354, Symonds v. Hall, 
 
 Arbitration, 28. 
 
 Costs, 132. Exceptions, 2S6. 
 
 Arbitration, 27. 
 
 Covenant, 146. Deed, 162. Evidence, 226, 231, 
 248, 249. Law and Fact, 344. Mortgage, 394. 
 Practice, 472. Presumption, 477. Witness, 595. 
 
 Bastardy, 62. 
 
 Exceptions, 257. 
 
 Husband and Wife, 299. Jurisdiction, 334. Mar- 
 ried Woman, 381. Statutes, 532. 
 
 Damages, 151. Lease, 345. Trespass, 655, 566. 
 
 T. 
 
 xlii. 
 
 77, 
 
 xxxii. 
 
 251, 
 
 xxxviii. 
 
 333, 
 
 XXXY. 
 
 342, 
 
 xxxii. 
 
 589, 
 
 ixxyi. 
 
 525, 
 
 xUii. 
 
 530, 
 
 xxix. 
 
 323, 
 
 xlii. 
 
 56, 
 
 xxxii. 
 
 269, 
 
 xli. 
 
 123, 
 
 xxxi. 
 
 528, 
 
 XXX. 
 
 475, 
 
 xxxix. 
 
 140, 
 
 xxxiv. 
 
 139, 
 
 xxxvi. 
 
 287, 
 
 XXXV. 
 
 179, 
 
 
 149, 
 
 xxxvi. 
 
 362, 
 
 xxxiii. 
 
 390, 
 
 xxxi. 
 
 262, 
 
 xxviii. 
 
 289, 
 
 xxxiv. 
 
 167, 
 
 xliii. 
 
 490, 
 
 XXXV. 
 
 281, 
 
 xxxvi. 
 
 47, 
 
 xxxi. 
 
 130, 
 
 xxxii. 
 
 87, 
 
 xxxi. 
 
 91, 
 
 xxix. 
 
 298, 
 
 xxxvii. 
 
 190, 
 
 
 181, 
 
 xlii. 
 
 282, 
 
 xl. 
 
 378, 
 
 xU. 
 
 419, 
 
 xl. 
 
 197, 
 
 
 25, 
 
 
 414, 
 
 xxvii. 
 
 225, 
 
 xli. 
 
 302, 
 
 Taggard v. Buckmore, Liens, 354, 355, 357. 
 Talbot v. Copeland, Deed, 171. 
 
 Officer, 422. 
 
 Talbot V. Copeland, 
 Tallman v. Snow, 
 Tarbell, petitioner, 
 Taylor y. Godfrey, 
 Taylor v. Pierce, 
 Taylor v. Robinson, 
 Temple v. Partridge, 
 Tenney v. Butler, 
 
 Tewksbury v. Hayes, Actions, &c., 13. 
 
 Vide Appendix. 
 
 Condition, 97. Deed, 167. 
 
 Divorce, 187. 
 
 Malicious Prosecution, 377, 378. 
 
 Assumpsit, 40. Bills, &c., 76. Practice, 469. 
 
 Libel, &c., 348. Marriage, 380. Practice, 472. 
 
 Estoppel, 214. Exceptions, 256. 
 
 Practice, 472. 
 
 Thaoher v. Jones, 
 
 Thayer v. Boyle, 
 Thayer y. Comstock, 
 
 Thayer y. Mayo, 
 Thayer v. Mowry, 
 
 Eraud, 285. Limitations, &c., 359. Penalty, 448. 
 
 Statutes, 633. Verdict, 573. 
 Indictment, 306. Malicious Mischief, 376, 377. 
 Abatement, 2, 3. Attachment, 42. Writs, &c., 
 
 697. 
 Execution, 260, 261. 
 Evidence, 232. Judgment, 332. Payment, 446. 
 
 Presumption, 477. 
 Set-oif, 523. 
 Evidence, 250, 251. Limitations, &c., 361. 
 
 Limitations, &c., 864. 
 
 Poor Debtor, 463. Surety, 639. 
 
 Damages, 153. Mills, 386. 
 
 Pauper, 441. Practice, 472. 
 
 Theobald v. Colby, 
 Theobald y. Stinson, 
 Thibodeau y. Layas- 
 
 sieur, 
 Thomas y. Dow, 
 Thomas v. Hill, 
 
 Thomaston v. Warren, Exceptions, 252. 
 Thompson v. Lewis, Partnership, 432. 
 Thompson v. Mans- 
 field, Bills, &c., 78. 
 Thompson y. Mitchell, Arbitration, 28, 29, 30, 31. 
 Thompson y. Moore, Fraud, &o., 288. Mortgage, 407. Sale, 510. 
 Thompson y, Tomp- 
 
 son. Costs, 136. 
 
 Thompson y. Towle, Witness, 592. 
 Thorndike y. Spear, Dower, 192. 
 Thornton v. Appleton, Bills, &c., 67. 
 Thornton v. Blaisdell, Exceptions, 254. 
 Thornton V. Townsend, Amendment, 21. 
 Thornton v. Wood, Attachment, 41, 42. Evidence, 229. 
 Infant, 311. Payment, 447. 
 Liquor, 370. Officer, 423. Warrant, &c., 676. 
 Executors, &c., 270, 272, 274. Limitations, &c., 
 
 369, 362. Practice, 467. 
 Evidence, 220, 221. Exceptions, 252, 253. Re- 
 cord, 494. 
 Ticonic Bank v. John- 
 son, Bank, 56. 
 Ticonic Bank y. Smiley, Actions, &c. 6. Bills, &o., 71. 
 121, Ticonic Bank v. 
 
 Stackpole, Bills, &c., 64, 70, 71. Evidence, 240. 
 
 Contract, 107. Fraud, &c., 28-5. 
 Usury, 672. Witness, 692. 
 
 Thurlow y. Gilmore, 
 Thurston y. Adams, 
 Thurston y. Lowder, 
 
 Tibbetts y. Baker, 
 
xlvi 
 
 TABLE OP CASES. 
 
 XXXI. 
 
 xxxiii. 
 
 xxxriii. 
 
 xl. 
 
 xliii. 
 
 xxTiii. 
 
 xxix. 
 
 xxvii. 
 
 xli. 
 
 xxxvi- 
 
 xxxiii. 
 xl. 
 
 XXXVUl. 
 
 xxxii. 
 xxxix. 
 
 486, Tilton v. Palmer, 
 
 461, Tisdale v. Buckmore, 
 
 661, Titcomb v. Wood, 
 
 348, Titus V. Morse, 
 
 186, TUexan v. Wilson, 
 
 106, Tobie v. Smith, 
 
 219, Todd V. Tobey, 
 
 480, Todd V. Whitney, 
 
 324, Toothaker v. Allen, 
 
 589, Torrey v. Berry, 
 
 333, Torrey v. Corliss, 
 
 74, Torrey v. Foss, 
 
 528, Totman v. Sawyer, 
 95, 528, Towle v. Blake, 
 
 416, Townseud v. Wells, 
 
 556, Tozier v. School Dis. 
 
 No, 2 in Vienna, 
 
 501, Trafton v. Gardiner, 
 
 437, Trask v. Ford, 
 
 xxix. 499, Trask v. Patterson, 
 
 xxxiv. 112, TreadweU v. Moore, 
 
 XXXV. 34, Treat v. Chipman, 
 
 xlii. 552, Treat t. Lord, 
 
 xxxyi. 390, Tremont v. Mt. Desert, 
 
 xxxiii. 482, Tremont v. Clark, 
 
 xU. 604, Trim v. Charleston, 
 
 xxxvii. 260, Tripp v. Lyman, 
 
 xxxT. 183, True v. Andrews, 
 
 xliii. 485, True v. McGUveiy, 
 
 xxxvi. 466, True v. Plumley, 
 
 xxviii. 545, TruU v. Fuller, 
 
 xxxiii. 367, Trull v. True, 
 
 xxxii. 225, Trundy v. Farrar, 
 
 xxxvi. 346, Tucker v. Campbell, 
 
 XXXV. 393, Tucker v. Wentworth, 
 
 xxviii. 424, Tufts v. McClintock, 
 
 XXXV. 112, Turner v. Norris, 
 
 xxxi. 557, Turner v. Putnam, 
 
 xxxi. 555, Tuttle v. Swett, 
 
 xxxvii. 49, Tweed v. Libbey, 
 
 xxxviii. 630, Tyler v. Alford, 
 
 xxxi. 336, Tyler v. Beal, 
 
 xxxviii. 268, Tyler v. Hobnes, 
 
 Betterments, 63. Partition, 430. 
 
 Contract, 110. Fraud, &c., 286. Sale, 612. 
 
 Fraud, &c., 288. 
 
 Estoppel, 216. 
 
 Husband and Wife, 299. Presumption, 477-. 
 
 Actions, &c., 7. 
 
 Assumpsit, 38. 
 
 Law and Fact, 342, 343. 
 
 Trustee Process, 662. 
 
 Damages, 157, 158. Evidence, 228. Poor Debtor, 
 
 463, 466. 
 Foreign. Laws, 284. Liquor, 365. 
 Bills, &o., 75. 
 Deposition, 179. 
 
 Amendment, 20. Evidence, 241, 242. 
 BiUs, &c., 70. 
 
 Evidence, 233. School District, 516. 
 
 Arrest, 32. Officer, 418. 
 
 Easement, 195. Lease, 346. Prescription, 476. 
 
 Trespass, 657. 
 Deed, 161, 176. Husband and Wife, 299. Joint 
 
 Tenants, &c., 326. Pleading, 456. 
 Payment, 447. 
 Flats, 281." 
 Aquatic Bights, 24, 25. Grants, &c., 292. Law 
 
 and Fact, 345. Practice, 473, 474. Seizin, &c.j 
 
 620. 
 Emancipation, 196. Pauper, 441. 
 Mandamus, 379. 
 Assessors, 33. School District, 616, 617. Town, 
 
 550. 
 Town, 549. 
 Limitations, &c., 362. 
 Actions, &c., 14. Assumpsit, 40. 
 Damages, 152. Deposition, 180. Exceptions, 257. 
 
 Libel, &c., 348, 349, 350. Lord's Day, 375. 
 
 Mandamus, 379. Practice, 473. Verdict, 573. 
 
 Waiver, 675. 
 Execution, 259. Sale, 608. 
 Evidence, 222. 
 Agency, 15, 17. 
 Joint Tenants, 329. Mills, 389. 
 School District, 615. 
 Officer, 422. 
 Officer, 423. 
 
 Appeal, 22. Costs, 132. 
 Frauds, Statute of, 290. 
 Abatement, 4. 
 Justice of the Peace, 337. 
 Justice of the Peace, 337. 
 Shipping, 529. 
 
 u. 
 
 xli, 
 
 75, 
 
 291, 
 
 xxxiv. 424, 
 
 xxxvi. 15, 
 
 xxix. 415, 
 
 xxxui. 199, 
 
 Underwood v. North 
 
 Wayne Scythe Co., Damages, 169. Easement, 195. Mills, 390. 
 Underwood v. North 
 
 Wayne Scythe Co., Mills, 387, 388, 389, 390. 
 
 XTniv. So. in Sweden 
 
 V. Kimball, 
 XTran v. Soudlette, 
 Usher v. Richardson, 
 Usher v. Taft, 
 
 Vide Appendix. 
 
 Bankruptcy, 68. Judgment, 331. 
 Dower, 191, Estoppel, 213. 
 Tax, 644. 
 
TABLE OP CASES. 
 
 xlvii 
 
 Y. 
 
 XXX. 194, Valentine v. Norton, 
 
 xxxvii. 
 
 306, 
 
 xliii. 
 
 337, 
 
 xl. 
 
 109, 
 
 xl. 
 
 60, 
 
 xl. 
 
 62, 
 
 xl. 
 
 69, 
 
 xxxi. 
 
 299, 
 
 xxix. 
 
 206, 
 
 xxxii. 
 
 299, 
 
 xxxix. 
 
 496, 
 
 xU. 
 
 430, 
 
 xxvii. 
 
 156, 
 
 xxxi. 
 
 407, 
 
 Varney v. Grows, 
 Vassalboro' v. Som. & 
 
 Ken. R. R. Co., 
 Veazle Bank v. Paulk, 
 Veazie Bank v. TVinn, 
 Veazie Bank v. Winn, 
 Veazie v. Holmes, 
 Verrill v. Minot, 
 Very v. McHenry, 
 Vinalhaven v. Ames, 
 Viuing V. Gilbreth, 
 Vinton v. Weaver, 
 Vose V. Bradstreet, 
 Vose v. Holoomb, 
 
 Actions, &c., 9. Error, 210,211. Executors, &c., 
 
 271. Officer, 421. Record, 494. 
 Limitations, &c., 360. 
 
 Easement, 195. Title, &c., 648. 
 
 Actions, &c., 14. Bank, 57. Usury, 572. 
 
 Checks, 91. 
 
 Bills, &c., 75. 
 
 Bill of Sale, 80. 
 
 Way, 581. 
 
 Bankruptcy, 60. Contract, 119. 
 
 Overseers of the Poor, 425. 
 
 Sale, 507, 508. 
 
 Justice of the Peace, 336. Officer, 423. 
 
 Deed, 174. 
 
 Assignment, 37. Estoppel, 214. 
 
 w. 
 
 xliii. 163, 
 xxxiii. 424, 
 xxxiii. 511, 
 
 xxxvii. "414, 
 XXXV. 422, 
 
 xxxvii. 373, 
 
 xxxiii. 516, 
 
 xxxvi. 273, 
 
 xl. 152, 
 
 xxix. 317, 
 
 515, 
 xxxi. 558, 
 xxxviii. 492, 
 
 Wadsworth Y. Treat, 
 Waite V. Foster, 
 Waldo V. Moore, 
 
 Waldrou v. Chase, 
 Waldron v. P. S. & P, 
 
 R. R. Co., 
 Walker v. Blake, 
 Walker v. Davis, 
 Walker v. Patterson, 
 Walker v. Pearson, 
 Walker v. Protection 
 
 Ins. Co., 
 Ward V. Chase, 
 Wardwell v. Poster, 
 
 Damages, 153. 
 
 Bills, &c., 67, 69. Partnership, 433. 
 
 County Commissioners, 140. Exceptions, 
 
 Practice, 471. 
 Sale, 509. 
 
 Trespass, 567. 
 
 Exceptions, 254. 
 
 BiUs, &c., 76, 79. Evidence, 224, 231. 
 
 Evidence, 234. Executors, &c., 272, 274. 
 
 Deed, 173. 
 
 257. 
 
 xxxii. 41, Ware v. Webb, 
 
 xliii. 570, 
 
 xlii. 343, 
 
 xxix. 464, 
 
 xxxii. 36, 
 
 xxxiii. 256, 
 
 xxix. 62, 
 
 xxxiii. 220, 
 
 xxxviii. 108, 
 
 xliii. 429, 
 
 XXX. 231, 
 
 xliii. 406, 
 
 xxxiii. 442, 
 
 xxxviii. 356, 
 
 xl. 289, 
 
 xxxvii. 326, 
 
 xl. 333, 
 
 xxxviii. 425, 
 
 xliii. 504, 
 
 XXX. 103, 
 
 Warren v. Baker, 
 Warren v. Davis, 
 
 Insurance, 319, 321,' 322. 
 
 Witness, 592, 594. 
 
 Bankruptcy, 60. Bills, &c., 73. 
 Ware v. Co. Comm'rs, Certiorari, 89. County Commissioners, 142. Way, 
 585. 
 
 Bills, &c., 79. Limitations, &c., 363. Pleading, 
 451. 
 
 Equity, 200. 
 
 Costs, 133. Husband and Wife, 301. Poor Debt- 
 or, 462. 
 
 Warren v. Gibbs, Costs, 132, 134. Trustee Process, 566. 
 Warren v. Homested, Nonsuit, 414. Practice, 475. 
 Warren v. Homested, Bankruptcy, 61. 
 Warren v. Ireland, Assignment, 35. Trusts, 568. 
 Warren v. Miller, Abatement, 3. 
 Warren V. Miller, Bankruptcy, 61. Evidence, 228. Limitations, &c., 
 
 364. Pleading, 456. 
 Warren v. Shaw, Equity, 202. 
 
 Warren v. Stetson, Deed, 160, 161, 164. 
 Warren v. Thomaston, Pauper, 439. 
 Washington v^Brown, Public Lots, 483. 
 
 Wass V. Bucknam, Distribution, &c., 185. Heirs, 297. Husband and 
 Wife, 300. Joint Tenants, &c., 326. Land- 
 lord, &c., 340. 
 
 Assumpsit, 40. Executors, &c., 274. 
 
 Attachment, 46. Replevin, 497. 
 Waterhouse V. Cousius,Poor Debtor, 457, 460. 
 AVaterhouse v. Fogg, Evidence, 242. 
 Waterman v. Vose, Bills, &c., 78. Practice, 474. 
 Waterville v. Howard, Appeal, 23. 
 
 Wasa V. Bucknam, 
 Waterhouse v. Bird, 
 
xlviii 
 
 TABLE OP CASES. 
 
 xliii. 431, 
 
 XXX. 
 
 529, 
 
 xxxvii. 
 
 658, 
 
 xxxii. 
 
 175, 
 
 XXXV. 
 
 336, 
 
 XXXV. 
 
 26, 
 
 xxxvi. 
 
 612, 
 
 xxxviii. 
 
 78, 
 
 xxxiii. 
 
 492, 
 
 xl. 
 
 356, 
 
 xxxiii. 
 
 488, 
 
 xl. 
 
 151, 
 
 xxxiii. 
 
 271, 
 
 xxxvii. 
 
 39, 
 
 xxxvii. 
 
 221, 
 
 xxxviii. 
 
 61, 
 
 xU. 
 
 281, 
 
 XXX. 
 
 426, 
 
 XXX. 
 
 61, 
 
 xxxvii. 
 
 14, 
 
 XXX. 
 
 336, 
 
 xxxiii. 
 
 367, 
 
 xxxix. 
 
 71, 
 
 xxxviii. 
 
 243. 
 
 xxxiii. 
 
 647, 
 
 xxxviii. 
 
 315, 
 
 xxxvi. 
 
 74, 
 
 xxxvi. 
 
 252, 
 
 xl. 
 
 102, 
 
 sxxv. 
 
 360, 
 
 xlii. 
 
 42, 
 
 xli. 
 
 432, 
 
 xxxiv. 
 
 54. 
 
 xxxii. 
 
 233, 
 
 xxxiii. 
 
 347, 
 
 xl. 
 
 247, 
 
 xxxix. 
 
 424, 
 
 xxxix. 
 
 21, 
 
 xxxviii. 
 
 264, 
 
 xli. 
 
 149, 
 
 XXXV. 
 
 634, 
 
 XXX. 
 
 267, 
 
 xxxiii. 
 
 220, 
 
 xxvii. 
 
 370, 
 
 xxxiii. 
 
 496, 
 
 xxxvi. 
 
 92, 
 
 xxvii. 
 
 114, 
 
 xxxii. 
 
 188, 
 
 xxxiii. 
 
 322, 
 
 xl. 
 
 674, 
 
 XXX. 
 
 285, 
 
 XXTV. 
 
 488, 
 
 Webb V. Flanders, 
 Webb V. Hall, 
 Webber v. Closson, 
 Webber v. Williams, 
 Webster v. HiU, 
 Weed V. Lermond, 
 Weed V. Sibley, 
 Weeks v. ElUott, 
 Weeks v. Merrow, 
 Weeks v. Shirley, 
 Weld v. Carthage, 
 
 Waterville I. Man. "> Actions, &c., 14. Jurisdiction, 334. Justice of 
 
 Co. V. Goodwin, J t^^ Peace, 336. 
 Watkins v. Eaton, Joint Tenants, &c., 327- Liens, 351. 
 Wayne v. Co. Com., Certiorari, 88. County Commissioners, 141, 142. 
 Way, 679. 
 Vide Appendix. 
 
 Infant, 311. Married Woman, 382. 
 Fence, 276, 277. Impounding, 302. 
 Liquor, 366. 
 
 Execution, 262. Real Action, 488. 
 Executors, &c., 270. 
 Evidence, 234. 
 
 Bills, &c., 78. Contract, 116. Practice, 473. 
 Infant, 311. , 
 
 Way, 582. 
 Pauper, 437. 
 Weld V. Chadbourne, Attachment, 47. Evidence, 222, 245. New Trial, 
 
 412. Officer, 418, 419. 
 Wellington v. Fuller, Deed, 165, 173, 174. Execution, 264. Fraud, &c., 
 
 287. 
 Wellington v. Mur- 
 
 dough. Evidence, 228, 229. 
 
 Wellman v. Southard, Limitations, &o., 362, 363. 
 Wells V. Brackett, Bankruptcy, 60. 
 Wentworth v. Blanch- 
 
 ard. Trespass, 654, 666. 
 
 Wentworth v. Keazer, Evidence, 237. Justice of the Peace, 337. 
 Wentworth v. Keizer, Becord, 494. 
 Wentworth v. Lord, Offer to be defaulted, 416. 
 Wentworth v. Poor, Mills, 386. 
 Wentworth v. Sanford 
 
 Manuf 'g Co., Mills, 388, 390. Prescription, 476. 
 
 Wesley v. Sargent, Costs, 135. Vide Appendix. 
 West Bath, petitioners. Certiorari, 88, 89. 
 West Gardiner v. 
 
 Farmingdale, New Trial, 411, 412. 
 
 Weston V. Higgins, Evidence, 235. Practice, 473. Presumption, 477. 
 
 Trover, 658. 
 Weston V. Weston, Assignment, 36. Executors, &c., 273. 
 Weymouth V. Baboock,Actione, &c., 13. 
 
 Wheeler v. Haakins, Agency, 18. Attorney, 60. Executors, &c., 273. 
 Agency, 16. 
 Attachment, 44, 46, 46, 48. Officer, 422. Sale, 
 
 507. 
 Joint Stock Ass., 326. Mortgage, 406. Trover, 669. 
 
 Wheeler v. Nevins, 
 Wheeler v. Nichols, 
 
 Wheeler v. Wheeler, 
 Whidden v. Seelye, 
 
 Mortgage, 396. 
 
 Evidence, 233. Exceptions, 264. 
 
 Trees, 653. Trover, 668. 
 Exceptions, 254. 
 Whitcomb v. Simpson, Attachment, 43. Mortgage, 395, 398. 
 Whitcomb v. Smart, Bills, &c., 74, 76. 
 
 White V. Chadbourne, Evidence, 224, 226, 247. Exceptions, 263. 
 Amendment, 20. Pleading, 451. 
 Abatement, 2, 3. Bankruptcy, 60. Bills, &c., 
 
 68, 77. Pleading, 461, 455. 
 Evidence, 219. 
 Contract, 109. Exceptions, 266. Law and Fact, 
 
 343. Payment, 445. Practice, 472. 
 Witness, 593. 
 
 Contract, 111. Damages, 155. 
 Probate Court, 480. 
 Sale, 610. 
 , Evidence, 222, 226. Libel, &c., 349. 
 Trover, 659, 560. Writs, &o., 597. 
 Whitman v. Weston, Deed, 164, 170. Equity, 209. 
 Whitmore v. LeBallis- 
 
 ter. Arbitration, 27. 
 
 Whipple V. Wing, 
 
 White V. Curtis, 
 White V. Cushing, 
 
 White V. Dwinel, 
 White V. Jordan, 
 
 White V. Means, 
 White V. Oliver, 
 White V. Riggs, 
 White V. Saunders, 
 White V. Sayward, 
 White V. WaU, 
 
TABLE OP CASES. 
 
 xlix 
 
 xliii. 468, 
 xxviii. 392, 
 
 xxxii. 313, 
 XXX. 557, 
 XXX. 31, 
 
 xxxiii. 273, 
 
 xxxlii. 318, 
 xl. 224, 
 
 xxxix. 316, 
 
 XXXV. 435, 
 
 xUii. 451, 
 
 xxxviii. 26, 
 
 xxxyiii. 32, 
 xxvii. 301, 
 
 xxxvi. 561, 
 xxlx. 164, 
 
 xxxix. 169, 
 xxxii. 184, 
 xxix. 73, 
 
 XXX. 429, 
 xxvii. 438, 
 
 XXX. 452, 
 xxxvi. 201, 
 
 XXXV. 346, 
 
 xxxiv. 370, 
 
 xxxvi. 243, 
 
 XXXV. 547, 
 
 xxxi. 455, 
 
 xxxviii. 47, 
 xxxi, 219, 
 
 465, 
 
 xxxii. 181, 
 xxix, 112, 
 xxxi. 392, 
 
 "Whitmore v. Whit- 
 comb, Minor, 391. ^ ., t, -^ 
 Wliitinore T. Wood- > Assignment, 34, 35. Attaflhrnent, 41. Equity, 
 
 ■waid, 5 197. Fraud, &c., 286. 
 
 Whitney v. Bachelder, Deed, 161, 176. 
 Whitney v. Brown, Costs, 132, Practice, 466. 
 ~ " Exceptions, 263. 
 
 Mills, 388. 
 
 Evidence, 227. Mortgage, 406. 
 Bond, 82, 84, 86. Damages, 158. Evidence, 228. 
 
 Agency, 16. Corporation, 124. 
 Vide Appendix. 
 Shipping, 627. 
 
 Whitney v. Cottle, 
 Whitney v. GUman, 
 Whitney v. Lowell, 
 Whitney v. Slayton, 
 Whitney v. So. Paris 
 
 Manuf' g Co., 
 Whitten v. Hanson, 
 Whitten v. Tisdale, 
 Whittieer v. Ken. & 
 
 Port. B. E.. Co., Eailroads, 485, 486. 
 Whittier v. Sanborn, School District, 515. 
 Whittier v. Vaughan, Amendment, 21. Attachment, 41. Execution, 
 
 263, 264, 266. Practice, 468. 
 Wight V. PhilUps, Trespass, 654. Way, 581. 
 Wight V. Stiles, Amendment, 19. Deposition, 179. Exceptions, 
 
 252. Practice, 469. Sale, 613. 
 Wilbur V. Dyer, Partition, 429. Review, 604. 
 
 Wilkins v. Babbershall,Practice, 469. Witness, 69 6. 
 Wilkins v. Dingley, Officer, 421. 
 
 Executors, &c., 273. 
 
 Bankruptcy, 58. 
 
 Payment, 445. Town, 661. 
 
 Wilkins v. Patten, 
 Wilkins v. Warren, 
 Willey V. Greenfield, 
 Williams v. And. & 
 Ken. R. B. Co., 
 
 xxxu. 
 xxxvii. 
 
 xxxii. 
 
 xxix. 
 
 xl. 
 
 xxxvi. 
 
 xxxvi. 
 xxxviii. 
 
 xxxiv. 
 
 xxxiv. 
 
 659, 
 403, 
 
 85, 
 666, 
 116, 
 295, 
 496, 
 
 18, 
 123, 
 431, 
 
 xxxii. 186, 
 
 xliii. 316, 
 
 xxxii. 462, 
 
 xxviii. 367, 
 XXXV. 260, 
 
 xxvii. 174, 
 
 Interest, 324. Trustee Process, 564, 566, 567. 
 WUliams v. Co, Com., Mandamus, 379. Statutes, 533, 634. Way, 678. 
 Williams v. Cushing, Executors, &c., 270. Probate Bonds, 479, 481. 
 Williams v. Esty, Executors, &c., 274. 
 
 WilUams v. Hilton, Mortgage, 396, 404. 
 Williams v. Ken.Mut. 
 
 Ins. Co., Insurance, 321, 322. 
 
 Williams v. Morton, Guardian and Ward, 294, 296. 
 Williams v. New Eng- 
 land M. P. Ins. Co., Insurance, 317, 318, 319, 320, 322. 
 Williams v. New Eng- 
 land M. F. Ins. Co., Corporation, 129. 
 Williams v. Bobbins, Bankruptcy, 60. 
 Williams V. Spaulding, Deed, 169. 
 
 Williams v. Thurlow, Evidence, 221. Mortgage, 394, 403. Payment, 
 445. Real Action, 488. 
 Collector, 93. 
 
 Actions, &c., 11. Assumpsit, 39. 
 Evidence, 237. 
 
 Abatement, 3. Practice, 467. Replevin, 500. 
 Mortgage, 395. 
 Evidence, 243. 
 Vide Appendix. 
 Condition, 98. Deed, 167. 
 Exceptions, 257. Trustee Process, 664, 666. 
 > Amendment, 21. Execution, 267. Law and 
 5 Pact, 344. Officer, 421, 422, 423. Trespass, 554. 
 
 Williamson v. Dow, 
 Willis V. Hobson, 
 Wilson V. Hobbs, 
 Wilson V. Nichols, 
 Wilson V. Ring, 
 Wilson V, Sherlock, 
 Wilson V, Wadleigh, 
 Wilson V, Wilson, 
 Wilson V. Wood, 
 Wilton Manuf 'g Co. 
 
 V. Butler, 
 WUton Manuf 'g Co. 
 
 V. Woodman, 
 
 Error, 210. Pleading, 464, 456. 
 
 Wilton V. New Vine- 
 yard, Pauper, 439. 
 Windham, petitioners. Certiorari, 89. County Commissioners, 139. Way, 
 
 679. 
 Wing V. Abbott, Evidence, 217. 
 
 Wing V. Chase, Amendment, 20. Contract, 108, 112. Costs, 135. 
 
 Covenant, 147. Damages, 165. Seal, &o., 618. 
 Wingate v. Leeman, Poor Debtor, 469, 464, 
 
 G 
 
TABLE OP CASES. 
 
 XXXI. 
 
 xxxvii. 
 
 xxix. 
 xxxiv. 
 
 xxix. 
 xxxvi. 
 xxxix. 
 
 xxxi. 
 
 xxxi. 
 xU. 
 
 XXXUl. 
 
 xl. 
 
 XXX. 
 
 xxxii. 
 
 XXXV. 
 
 XXX. 
 
 XXXV. 
 
 xxvii. 
 
 xxxil. 
 
 xl. 
 
 xxxiv. 
 
 XXXV. 
 
 xxxix. 
 
 XXX. 
 
 XXXV. 
 
 xxxvii. 
 
 Hi, 
 661, 
 419, 
 
 25, 
 362, 
 110, 
 428, 
 465, 
 381, 
 307, 
 422, 
 211, 
 326, 
 168, 
 247, 
 146, 
 
 47, 
 107, 
 230, 
 340, 
 304, 
 693, 
 138, 
 
 45, 
 180, 
 464, 
 
 21, 
 
 xxxvii. 29, 
 
 XXXV. 
 
 xli. 
 xxxvii. 
 
 271, 
 
 9, 
 
 563, 
 
 xxxix. 246, 
 
 xli. 159, 
 
 XXX. 101, 
 XXXV. 64, 
 
 Winslow V. Norton, 
 Winslow V. Patten, 
 "Winslow V. Rand, 
 Winsor v. Clark, 
 Winsor v. Clark, 
 
 Flats, 281. 
 Poor Debtor, 468, 465. 
 
 Winslow v. Co. Com., Appeal, 23. County Commissioners, 139. 
 "Winslow V. Co. Com., Certiorari, 89. Tax, 543. 
 
 Shipping, 530. 
 
 Deed, 171, 176. 
 
 Deed, 176, 176. 
 
 Damages, 157. 
 
 Evidence, 218, 251. 
 "Winthiop V. Auburn, Pauper, 437. 
 Winthrop v. Benson, Seizin, &c., 619, 920, 621. 
 ■Winthropv.Fairbanks,Deed, 168. 
 "Wise V. Neal, Bills, &o., 80. Evidence, 224. 
 
 "Withee v. Preston, Costs, 135. Error, 211. 
 "Witherell v. Joy, Payment, 447. 
 
 "Witherell v. Randall, Amendment, 20. Exceptions, 256. 
 
 Evidence, 234, 241. 
 
 Trustee Process, 564, 566. 
 
 Deed, 170. Mills, 387. 
 
 Partition, 426, 427, 428. 
 
 Practice, 468. 
 
 Devise, 184. Equity, 198. 
 Woodburyv. Co. Com., Mandamus, 379. 
 "Woodcock v. Parker, Record, 494. 
 "Woodcock v. Parker, Courts in General, 143. 
 "Woodman v. Chesley, Exceptions, 253. Mortgage, 407. 
 Ranger, Forcible Entry, &c., 282. 
 Skeetup, Exceptions, 256, 267. AVitness, 694. 
 Smith, Abatement, 3. Execution, 261. Judgment, 330, 
 332. Real Action, 490. "Waiver, 675. 
 "Woodman V. Somerset, County Commissioners, 141. Court of Record, 
 
 144. Limitations, &c., 368. 
 "Woodward v. Aborn, Vide Appendix. 
 
 "Woodward v. Cowing, Equity, 199. Partnership, 431, 432, 433. 
 "Woodward V. "Ware, Amendment, 20. BUls, &c., 78. Limitations, &c., 
 
 368. 
 "Wooster v. Great 
 
 Falls Manuf' g Co., Mills, 389. 
 "Wooster v. Great 
 
 Falls Manuf' g Co., Damages, 153, 154. 
 "Worthen v. Hanson, Poor Debtor, 458. 
 "Wyman v. Farrar, Deed, 166, 167, 172. 
 
 "Witherell v. Swan, 
 "Wood V. Estes, 
 "SVood V. Kelley, 
 "Wood V. Little, 
 Wood V. Noyes, 
 Wood V. White, 
 
 Woodman 
 Woodman v. 
 Woodman v. 
 
 Y. 
 
 xxxiv. 
 
 411, 
 
 Yarmouth v. North 
 Yarmouth, 
 
 xxxvi. 
 
 248, 
 
 Yeaton v. Yeaton, 
 
 xli. 
 
 109, 
 
 York & Cumb. R. R. 
 Co. V. Myers, 
 
 xl. 
 
 447, 
 
 York & Cumb. R. R. 
 Co. V. Pratt, 
 
 xl. 
 
 425, 
 
 York & Cumb R. R. 
 Co. V. Ritchie, 
 
 xxxvii. 
 
 609, 
 
 Young V. Tarbell, 
 
 xxxiii. 
 
 359, 
 
 Young V. Ward, 
 
 xxxix. 
 
 492, 
 
 Young V. Weston, 
 
 xxxvi. 
 
 133, 
 
 Young V. Young, 
 
 Contract, 106. Corporation, 121, 123. 
 
 Law and Fact, 343, 344. 
 (Equity, 199. Injunction, 312. Mortgage, 396. 
 [ Trespass, 556. 
 
 Corporation, 128. Witness, 694. 
 
 Corporation, 125, 131. Sale, 612. 
 
 Dower, 189, 190, 192, 193. Executors, &o., 270. 
 
 Contract, 106. 
 
 BiUs, &c., 65. Limitations, &c., 359. 
 
 Landlord, &c., 339, 340, 341. Trespass, 564. 
 
TABLE OF CASES 
 
 [names of defendants aebanged alphabetically,] 
 WITH KEFEEENCES TO THE VOLUME AND PAGE OF THE REPORTS. 
 
 A. 
 
 xxviii. 280, Abbott, Mariner's Bank t. 
 
 xxxii. 46, Abbott, Moore v. 
 
 xli. 173, Abbott, Shapleigh v. 
 
 xl. 442, Abbott, Smith v. 
 
 xxviii; 367, Abbott, Wing v. 
 
 XXXV. 271, Aborn, Woodward v. 
 
 xxxiv. 41, Adams, Deering v. 
 
 xxxvii. 264, Adams, Deering v. 
 
 xl. 125, Adams, Langley v. 
 
 xli. 268, Adams, Otis' v. 
 
 xxxii. 63, Adams, Shepherd v. 
 
 xxxii. 211, Adams, Spaulding v. 
 
 xli. 419, Adams, Thurston v. 
 
 xxxiii. 228, Adams, Ware t. 
 
 xxxiii. 414, Albee, Lovejoy v. 
 
 xxxiii. 453, Alexander, Cooper v. 
 
 xxxviii. 530, Alford, Tyler v. 
 
 xliii. 590, Allen, Brown v. 
 
 xxvii. 366, Allen, Garnsey v. 
 
 xxvii. 85, Allen, Hatch v, 
 
 xH. 248, Allen, Low v. 
 
 XXXV. 276, Allen, Mooers v. 
 
 xli. 324, Allen, Toothaker v. 
 
 xxxii. 299, Ames, Yinalhaven v. 
 
 xxxvii. 199, Andrews, Bradbury v. 
 
 xH. 591, Andrews, Mansfield v. 
 
 XXXV. 183, Andrews, True v. 
 
 xxxix. 285, And. R. R. Co., Morse T. 
 
 xxxix. 273, And. R. R. Co., Norris v. 
 
 xxxix. 606, And. & Ken. R. R. Co., 
 Hubbard v. 
 
 xxxvii. 
 
 349, 
 
 xxxvi. 
 
 201, 
 
 xl. 
 
 435, 
 
 xxix. 
 
 298, 
 
 xlii. 
 
 259, 
 
 xxvii. 
 
 362, 
 
 xxviii. 
 
 91, 
 
 xxxiv. 
 
 146, 
 
 XXXI, 
 
 683, 
 
 XXXV. 
 
 364, 
 
 Tf-VW. 
 
 118, 
 
 xxxiii. 
 
 265, 
 
 xxxvii. 
 
 92, 
 
 xxxviii. 
 
 65, 
 
 xlii. 
 
 679, 
 
 xxxi. 
 
 351, 
 
 xxxiv. 
 
 163, 
 
 ■yvxi-jr. 
 
 392, 
 
 xxxii 
 
 492, 
 
 xxxi. 
 
 466, 
 
 xxxvi. 
 
 255, 
 
 xxxii. 
 
 536, 
 
 XXX. 
 
 91, 
 
 XXX. 
 
 310, 
 
 xxxii. 
 
 334, 
 
 And. & Ken, R. R. Co., 
 Porter v. 
 
 And. Ss Ken. R. R, Co., 
 Williams v. 
 
 Anthoine, State v. 
 
 Appleton, Thornton v, 
 
 Appleton F. Ins, Co., Brag- 
 don v. 
 
 Arey, Hinckley v. 
 
 Armstrong, Codman v, 
 
 Armstrong, Robinson v. 
 
 Arnold, Bulleu v. 
 
 Athearn, Bunker v. 
 
 Atkins, Leighton v. 
 
 Atkinson, Dunlap v. 
 
 At. & St. L. R. R, Co., 
 Chapman v. 
 
 At. & St. L. R. R. Co., 
 Knowles v. 
 
 At. & St, L. R, R, Co., 
 Pratt V, 
 
 Atwell, Brown v. 
 
 Atwood, Soutter v, 
 
 Aubens, Lunt v. 
 
 Auburn, Lewiston v. 
 
 Auburn, Winthrop v, 
 
 Augusta Bank, Augusta v. 
 
 Augusta, Sanford v. 
 
 Aug. W. P. Co., Patterson v. 
 
 Averill, Colburn v. 
 
 Ayer, Newell v. 
 
 B. 
 
 xl. 
 
 126, 
 
 Babb, Nash v. 
 
 ■ xxxii. 
 
 313, 
 
 xxxii. 
 
 184, 
 
 Babbershall, Wilkins v. 
 
 xxxii. 
 
 604, 
 
 xxxvi. 
 
 491, 
 
 Babcock, Buck v. 
 
 ■jrirviii. 
 
 376, 
 
 xxxviii. 
 
 462, 
 
 Babcock, Gushing t. 
 
 xxxii. 
 
 192, 
 
 xU. 
 
 347, 
 
 Babcock, Fogg v. 
 
 xxxiii. 
 
 382, 
 
 xl. 
 
 142, 
 
 Babcock, Mayo v. 
 
 xli. 
 
 78, 
 
 xlii. 
 
 42, 
 
 Babcock, Weymouth v. 
 
 xxxii. 
 
 273, 
 
 xxxix. 
 
 19, 
 
 Bachelder, Battles v. 
 
 xxviii. 
 
 9. 
 
 xxxii. 
 
 316, 
 
 Bachelder, Cunningham v. 
 
 xxxvii. 
 
 465, 
 
 xxxiv. 
 
 205, 
 
 Bachelder, Reed v. 
 
 xxxvi. 
 
 164, 
 
 xxviii. 
 
 218, 
 
 Bachelder, Stevens v. 
 
 xxxiv. 
 
 52, 
 
 XXX, 
 
 36, 
 
 Bachelder, Sumner v. 
 
 xxxii. 
 
 25, 
 
 Bachelder, Whitney v. 
 Bailey, Nutter v. 
 Bakeman, Cooper v. 
 Bakeman, Cooper v. 
 Bakeman, Daggett v. 
 Baker, Blake v. 
 Baker, Durgin v. 
 Baker, HiU v. 
 Baker, Jose v. 
 Baker, Skowhegau Bank v. 
 Baker, State v. 
 Baker, Tibbetts v. 
 
lii 
 
 xliii. 670, 
 
 xxxviii. 302, 
 
 xl. 291, 
 
 XXX. 361, 
 
 xlii. 522, 
 
 xxxviii. 443, 
 
 xli. 458, 
 
 xliii. 269, 
 
 xlii. 403, 
 
 xl. 176, 
 
 xli. 533, 
 
 xxxviii. 592, 
 
 XXX. 341, 
 
 XXX. 337, 
 
 xxvu. 
 xxviii. 
 xxviii. 
 xxviii. 
 xxxii. 
 
 xxxi. 
 
 xxix, 
 
 xxix. 
 xxxii. 
 
 xxix. 
 xU. 
 
 xli. 
 
 xU. 
 XXXV. 
 xxxiii. 
 
 XXX. 
 
 XXXV. 
 
 xlii. 
 
 xxxviii. 
 
 xxxi, 
 
 xxxvi. 
 
 xl. 
 
 xxvii. 
 
 xH, 
 
 XXXI. 
 
 xliii. 
 
 XXXV. 
 
 xl. 
 
 xl. 
 
 XXXV. 
 
 xxxvi. 
 
 xl. 
 
 xxxvi. 
 
 xli. 
 
 xxxiv. 
 
 xliii. 
 
 404, 
 97, 
 317, 
 310, 
 654, 
 116, 
 290, 
 128, 
 561, 
 530, 
 76, 
 403, 
 135, 
 74, 
 116, 
 241, 
 203, 
 477, 
 132, 
 357, 
 346, 
 219, 
 336, 
 369, 
 218, 
 337, 
 117, 
 623, 
 606, 
 
 205, 
 314, 
 161, 
 242, 
 369, 
 262, 
 497, 
 317, 
 314, 
 227, 
 332, 
 422, 
 374, 
 
 X. 132, 
 
 xxviii. 336, 
 
 xxxi. 381, 
 
 xxxi. 293, 
 
 TABLE OP CASES. 
 
 Baker, Warren v. 
 
 xxxviii. 
 
 80, 
 
 Balch, Pike v. 
 
 XXX. 
 
 83, 
 
 Balkam, Scudder v. 
 
 xxxi. 
 
 478, 
 
 Bangor Com. Bank, Booth.- 
 
 XXXV. 
 
 279, 
 
 by V. 
 
 xxxvii. 
 
 298, 
 
 Bangor, Davis v. 
 
 xxxvi. 
 
 589, 
 
 Bangor, Garmon v. 
 
 xxviii. 
 
 204, 
 
 Bangor, Leavitt v. 
 
 xxxvi. 
 
 436, 
 
 Bangor & Pen. C. & B. E. 
 
 XXXV. 
 
 53, 
 
 Co., Carle v. 
 
 xyxix 
 
 193, 
 
 Bangor, Portland v. 
 
 xxix. 
 
 310, 
 
 Bangor, Savage v. 
 
 xxxiv. 
 
 243, 
 
 Bangor, State v. 
 
 xxxiii. 
 
 146, 
 
 Bangor, State v. 
 
 xUi. 
 
 289, 
 
 Bangor, State v. 
 
 xxxi. 
 
 296, 
 
 Bangor Steam Navigation 
 
 xxxvii. 
 
 326, 
 
 Co., Snell V. 
 
 xxxvi. 
 
 593, 
 
 Bangor, Stiokney v. 
 
 xliii. 
 
 443, 
 
 Barker, Call v. 
 
 xxxvii. 
 
 190, 
 
 Barker, Call v. 
 
 xxxvi. 
 
 433, 
 
 Barker, Robinson v. 
 
 xxxvii. 
 
 124, 
 
 Barnard, Dwinel v. 
 
 xxix. 
 
 105, 
 
 Barnard, Dwinel v. 
 
 XXX, 
 
 164, 
 
 Barnes, Dodge v. 
 
 xxxix. 
 
 322, 
 
 Barnes, Foxcroft v. 
 
 xxxi. 
 
 289, 
 
 Barnes, State v. 
 
 xxxviii. 
 
 96, 
 
 Barnes, State v. 
 
 xxxviii. 
 
 628, 
 
 Barrett, Holt v. 
 
 xxxvii. 
 
 373, 
 
 Barrett, Marr v. 
 
 xxxvii. 
 
 14, 
 
 Barrows, Holden v. 
 
 xxviii. 
 
 308, 
 
 Barrows, McGlinchy v. 
 
 xxxix. 
 
 420, 
 
 Barry, Bicker v. 
 
 xxix. 
 
 79, 
 
 Bartlett, Fuller v. 
 
 XXXV. 
 
 302, 
 
 Bartlett, Hayden v. 
 
 xxvii. 
 
 289, 
 
 Bartlett, Langley v. 
 
 xxxix. 
 
 136, 
 
 Bartlett, State v. 
 
 xU. 
 
 344, 
 
 Bates, Kendall v. 
 
 xxxiv. 
 
 235, 
 
 Bath, Anderson v. 
 
 xxxvii. 
 
 128, 
 
 Bath, Kimball v. 
 
 xxxiv. 
 
 223, 
 
 Beal, Tyler v. 
 
 XXXV, 
 
 105, 
 
 Bean, Plantation v. 
 
 xxxviii. 
 
 435, 
 
 Bean, Plantation v. 
 
 xxxix. 
 
 263, 
 
 Bearce, Carle v. 
 
 
 
 Bearce, Fossett v. 
 
 xxvii. 
 
 132, 
 
 Bearce, Fossett v. 
 
 
 
 Bearce, Lumberman's 
 
 xxxiii. 
 
 649, 
 
 Bank v. 
 
 xxxvi. 
 
 78, 
 
 Beckett, Bramhall t. 
 
 
 
 Beede, McVicker v. 
 
 xU. 
 
 542, 
 
 Beede, Eichardson v. 
 
 xxvii. 
 
 125, 
 
 Beeman, State v. 
 
 XXXV. 
 
 511, 
 
 Belfast, Allard v. 
 
 xxxiii. 
 
 368, 
 
 Belfast, Eastport v. 
 
 XXX. 
 
 475, 
 
 Belgrade, Insane Hospital v. 
 
 xxxiii. 
 
 580, 
 
 BeU, Burke v. 
 
 xxxiv. 
 
 27, 
 
 Bell, Pullen v. 
 
 xxxiii. 
 
 331, 
 
 Benner, Dennison v. 
 
 XXX. 
 
 61, 
 
 Benner, Dennison v. 
 
 XXX. 
 
 266, 
 
 Bennett, Stowell v. 
 
 xl. 
 
 154, 
 
 Benson, Buck. B. K. R. 
 
 XXX. 
 
 452, 
 
 Co. V. 
 
 xxxiii. 
 
 580, 
 
 Benson, Jacobs v. 
 
 xxvii. 
 
 242, 
 
 Benson, Pease v. 
 
 xxviii. 
 
 374, 
 
 Benson, School District v. 
 
 xxvii. 
 
 156, 
 
 Berry, Brook v. 
 
 XXXV. 
 
 116, 
 
 Berry, Leishemess v. 
 Berry, Mosher v. 
 Berry, Shaw v. 
 Berry, Shaw v. 
 Berry, Smith v. 
 Berry, Torrey v. 
 Bethel, Forbes v. 
 Bicknell, Allen v. 
 Bicknell, Lord v. 
 Biddeford, Bryant v. 
 Biddeford, Littlefield v. 
 Bigelow, State v. 
 BiUington, State v. 
 Bingham, Mercer v. 
 Bird, Moulton v. 
 Bird, "Waterhouse v. 
 Bissell, Field v. 
 Black, Brown v, 
 Blaisdell, Thornton v. 
 Blake, Barker v, 
 Blake, Bartlett v. 
 Blake, Cummings v. 
 Blake, Estes v. 
 Blake, State v. 
 Blake, Storer v. 
 Blake, Towle v. 
 Blake, Towle v. 
 Blake, Walker v. 
 Blanchard, Wentworth. v, 
 Blen, Alley v, 
 Blen, Stevens v, 
 Boardman, Gillighan v. 
 Bodfish, Cox V, 
 Bodfish, Smith v. 
 Bodash, Smith v. 
 Boies, State v, 
 Boies, State v, 
 Bonney, Soule v. 
 383, Bonney, State v. 
 Bonney, State v. 
 Bonzey, Kent v. 
 Bosher, Eocldngham" M. F. 
 
 Ins, Co, V, 
 Boston & Ken. Steam Nav. 
 
 Co., Plaisted v. 
 Bowden, Simpson v. 
 Bowd. Steam Mill Co,, 
 
 Sampson v. 
 Bowley, Bowley v. 
 Bowley, Hewett v. 
 Boyd, Erskine v, 
 Boyden, Crosby v. 
 Boyle, Thayer v. 
 Braokett, Brainerd v. 
 Brackett, Godding v. 
 Brackett, McGuru v. 
 Brackett, Wells v. 
 Bradbury, Randall T. 
 Bradbury, State v. 
 Bradford, Kirkland v. 
 Bradford, iGrkland v. 
 Bradley, Hoyt v. 
 Bradstreet, Ken. Ferry Co. v. 
 Bradstreet, Vose v. 
 Bragg, Eumsey v. 
 
TABLE OF CASES. 
 
 liii 
 
 xxxviii 
 
 577, 
 
 xU 
 
 462, 
 
 xxxviii 
 
 472, 
 
 xxxviii 
 
 346, 
 
 xxvili 
 
 60, 
 
 xxxiv 
 
 240, 
 
 xxxix 
 
 304, 
 
 xxxix 
 
 . 35, 
 
 xxix 
 
 391, 
 
 XXXV 
 
 141, 
 
 xxxix 
 
 333, 
 
 xxxii. 
 
 447, 
 
 xxxiii. 
 
 309, 
 
 xxxix 
 
 443, 
 
 xliii 
 
 169, 
 
 xxxiii. 
 
 260, 
 
 xxxviii. 
 
 482, 
 
 xli. 
 
 448, 
 
 xxxix. 
 
 98, 
 
 xxxiv. 
 
 107, 
 
 xliii. 
 
 223, 
 
 xxxii. 
 
 458, 
 
 xxxii. 
 
 678, 
 
 xxxi. 
 
 520, 
 
 xxxi. 
 
 522, 
 
 xU. 
 
 635, 
 
 xxxiii. 
 
 442, 
 
 XXX. 
 
 657, 
 
 xxxiv. 
 
 694, 
 
 xxxii. 
 
 612, 
 
 xxxix. 
 
 484, 
 
 xxvii. 
 
 361, 
 
 XXX. 
 
 398, 
 
 xxxiii. 
 
 352, 
 
 xxxii. 
 
 474, 
 
 xli. 
 
 400, 
 
 XXX. 
 
 466, 
 
 xxxi. 
 
 553, 
 
 Brastow, Boynton v. 
 
 xH. 
 
 355, 
 
 Brewer, Eddington v. 
 
 xliii. 
 
 455, 
 
 Brewer, Holden v. 
 
 xxxvi. 
 
 536, 
 
 Bridges, Bradbury v. 
 
 xxxii. 
 
 277, 
 
 Bridgham, Nev^ Glouces- 
 
 xxxiii. 
 
 630, 
 
 ter V. 
 
 xliii. 
 
 265, 
 
 Bridgham, Parsons v. 
 
 XXXV. 
 
 478, 
 
 Briggs, Davis v. 
 
 
 
 Brigham, Came v. 
 
 xxxii. 
 
 539, 
 
 Brigham, Davis v. 
 
 
 
 Brighton, CornviUe v. 
 
 xlu. 
 
 77, 
 
 Brighton, Coruville v. 
 
 xxxiii. 
 
 461, 
 
 Brooks, Briggs v. 
 
 xxxviii. 
 
 171, 
 
 Brown, Bangor House v. 
 
 xxxviii. 
 
 356, 
 
 Brown, Cook v. 
 
 xl. 
 
 289, 
 
 Brown, Fitzgibbon v. 
 
 xxxi. 
 
 246, 
 
 Brown, Jewell v. 
 
 xxxviii. 
 
 130, 
 
 Brown, Labaree v. 
 
 xl. 
 
 592, 
 
 Brown, Lewis v. 
 
 xxxviii. 
 
 574, 
 
 Brown, Maxwell v. 
 
 xxviii. 
 
 38, 
 
 Brown, Moody v. 
 
 xxxviii. 
 
 112, 
 
 Brown, Portland v. 
 
 xli. 
 
 89, 
 
 Brown, Bemiok v. 
 
 xxxiii. 
 
 233, 
 
 Brown, Robinson T. 
 
 xxvii. 
 
 427, 
 
 Brown, State v. 
 
 XXX. 
 
 94, 
 
 Brown, State v. 
 
 xliii. 
 
 401, 
 
 Brown, State v. 
 
 xxxiv. 
 
 451, 
 
 Brown, Washington, v. 
 
 
 
 Brown, "Whitney v. 
 
 xlii. 
 
 83, 
 
 Brown, Williams v. 
 
 xxxii. 
 
 269, 
 
 Bruce, Cole v. 
 
 xxxiv. 
 
 431, 
 
 Bruce, Lawton v. 
 
 
 
 Brunswick, Bangor v. 
 
 xxix. 
 
 19, 
 
 Brunswick, Bangor v. 
 
 XXXV. 
 
 139, 
 
 Brunswick, Bangor v. 
 
 xU. 
 
 473, 
 
 Bryant, Farley v. 
 
 xl. 
 
 600, 
 
 Bryant, Farley v. 
 
 xxxix. 
 
 173, 
 
 Bryant, Lancey v. 
 
 
 
 Bryant, Nute v. 
 
 xxxix. 
 
 489, 
 
 Buck, Crooker v. 
 Buck, Cunningham v. 
 Buck, Hamilton v. 
 Buck, Hutchings v. 
 Buck, Linscott v. 
 Buck, Matthews v. 
 Buckfield B. R. R. Co., 
 
 Cummings v. 
 Buekaeld B. R. R. Co., 
 
 Porter v. 
 Buckmore, Taggard v. 
 Buokmore, Tisdale v. 
 Bucknam, Thompson v. 
 Bucknam, Weiss v. 
 Bucknam, Wass v. 
 Bulflnch, Hadlock v. 
 Bunker, Robinson v. 
 Burgess, State v. 
 Burke, State v. 
 Burnham, Brown v. 
 Burnham, Dunlap T. 
 Burnham, Dyer v. 
 Burns, Hobbs v. 
 Burton, Moody v. 
 Butler, Ballard v. 
 Butler, Cole v. 
 Butler, New Eng. M. F. 
 
 Ins. Co. v. 
 Butler, Orcutt v. 
 Butler, Tenney v. 
 Butler, Wilton Manuf' g 
 
 Co. V. 
 Butman, Middlesex Bank v. 
 Butts, MiQay v. 
 Buzzell, Dolan v. 
 Buzzell, Goodrich v. 
 Buzzell, Great Pond M. & 
 
 A. Co. V. 
 Byram, Franklin Bank y. 
 
 c. 
 
 xxxvii 
 
 . 281, 
 
 XXX 
 
 498, 
 
 Txxi 
 
 560, 
 
 xxvii 
 
 35, 
 
 XXX. 
 
 9, 
 
 xxxvi. 
 
 346, 
 
 xxxi. 
 
 28, 
 
 xxxii. 
 
 123, 
 
 xxxii. 
 
 517, 
 
 xxxii. 
 
 335, 
 
 xxxii. 
 
 553, 
 
 XXXV. 
 
 481, 
 
 xli. 
 
 84, 
 
 xxvii. 
 
 497, 
 
 xxxiii. 
 
 485, 
 
 xl. 
 
 31, 
 
 xxxiii. 
 
 436, 
 
 xxxix. 
 
 262, 
 
 xxxvii. 
 
 39, 
 
 xxix. 
 
 164, 
 
 xlii. 
 
 29, 
 
 Cahoon, Smith v. 
 
 xxxi. 
 
 9, 
 
 Calais R. R. Co., Peavey v. 
 
 XXXV. 
 
 189, 
 
 Caldwell, Codman v. 
 
 xxviii. 
 
 160, 
 
 Call, Handly v. 
 
 xlii. 
 
 429, 
 
 Call, Handly v. 
 
 xxxi. 
 
 152, 
 
 Campbell, Tucker v. 
 
 xxxvii. 
 
 221, 
 
 Candage, Johnson v. 
 
 xU. 
 
 149, 
 
 Cannell, Smith v. 
 
 XXXV. 
 
 193, 
 
 Cargill, Murray v. 
 
 xlii. 
 
 160, 
 
 Carleton, Baker v. 
 
 XXX. 
 
 79, 
 
 Carleton, Bassett v. 
 
 XXX. 
 
 152, 
 
 Carleton, Gray v. 
 
 xliii. 
 
 613, 
 
 Carman, Hudson v. 
 
 
 
 Carpenter, Sellers v. 
 
 xxviii. 
 
 506, 
 
 Carpenter, Sellers v. 
 
 XXX. 
 
 538, 
 
 Carroll, CaU v. 
 
 xli. 
 
 504, 
 
 Carson, Crocker V. 
 
 xxxix. 
 
 300, 
 
 Carter, State v. 
 
 xxix. 
 
 356, 
 
 Carthage, Weld v. 
 
 xxxvii. 
 
 289, 
 
 Carey, Esty v. 
 
 XXXV. 
 
 90, 
 
 47, 
 
 Carey, Moor v. 
 
 xxix. 
 
 Chadboume, Brown t. 
 Chadboume, Hutchinson v. 
 Chadboume, Knox v. 
 Chadboume, Lord v. 
 Chadboume, Moulton v. 
 Chadboume, Weld v. 
 Chadboume, White v. 
 Chadwick, Goodwin v. 
 Chaloner, Knox v. 
 Chandler, Fisk v. 
 Chandler, Gammon t. 
 Chandler River Co., Rey- 
 nolds v. 
 Chapin, Moulton v. 
 Chapman, Leighton v. 
 Charleston, Trim v. 
 Chase, Brook v. 
 Chase, Daggett v. 
 Chase, Fernald v. 
 Chase, Glidden v. 
 Chase, Hodgdon v. 
 
liv 
 
 TABLE OP CASES. 
 
 xxxii. 
 
 169, 
 
 Chase, Hodgdon v. 
 
 xxxii. 
 
 251, 
 
 xxxix. 
 
 508, 
 
 Chase, Hutchinsoa t. 
 
 xU. 
 
 81, 
 
 xxxii. 
 
 329, 
 
 Chase, Marden v. 
 
 xxxiii. 
 
 333, 
 
 xl. 
 
 269, 
 
 Chase, Pratt v. 
 
 xliii. 
 
 427, 
 
 xxxiv. 
 
 592, 
 
 Chase, Smith v. 
 
 xxxi. 
 
 357, 
 
 xxxvii. 
 
 414, 
 
 Chase, Waldron v. 
 
 XXX. 
 
 31. 
 
 XXXV. 
 
 516, 
 
 Chase, Ward v. 
 
 xxxii. 
 
 620, 
 
 XXXV. 
 
 260, 
 
 Chase, Wing v. 
 
 xxviii. 
 
 112, 
 
 xxxiii. 
 
 460, 
 
 Cherryfield, Church v. 
 
 
 
 xxix. 
 
 368, 
 
 Chesley, Fessenden v. 
 
 XXX. 
 
 270, 
 
 xxxix. 
 
 45, 
 
 Chesley, Woodman v. 
 
 xxxvii. 
 
 446, 
 
 xxxiv. 
 
 365, 
 
 Child, Ballard v. 
 
 
 
 xxxix. 
 
 110, 
 
 Child, Baxter v. 
 
 xxxiii. 
 
 237, 
 
 XXXV. 
 
 34, 
 
 Chipman, Treat v. 
 
 XXXV. 
 
 373, 
 
 xxxii. 
 
 31, 
 
 Churchill, Bates v. 
 
 xl. 
 
 389, 
 
 XXX. 
 
 187, 
 
 Churchill, Parlin v. 
 
 xl. 
 
 296, 
 
 xlii. 
 
 471, 
 
 Churchill, Pratt v. 
 
 xxxix. 
 
 683, 
 
 xxxviii. 
 
 553, 
 
 Cilley, Banchor v. 
 
 XXX. 
 
 19, 
 
 xxxiii. 
 
 428, 
 
 Claridge, Livermore v. 
 
 xxxiv. 
 
 692, 
 
 xxix. 
 
 485, 
 
 Clark, Fletcher v. 
 
 xl. 
 
 136, 
 
 XXX, 
 
 244, 
 
 Clark, Knapp v. 
 
 
 
 xxvii. 
 
 651, 
 
 Clark, Moody v. 
 
 xxviii. 
 
 121, 
 
 xxxviii. 
 
 223, 
 
 Clark, Eawson v. 
 
 XXX. 
 
 302, 
 
 xxxviii. 
 
 332, 
 
 Clark, Russell v. 
 
 xliii. 
 
 257. 
 
 xxxiii. 
 
 482, 
 
 Clark, School District v. 
 
 xxxvii. 
 
 553, 
 
 xxxvi. 
 
 110, 
 
 Clark, Winsor v. 
 
 XXX. 
 
 351, 
 
 VYvi-sr. 
 
 428, 
 
 Clark, Winsor v. 
 
 xxxix. 
 
 350, 
 
 xxxi. 
 
 518, 
 
 Clay, Brown v. 
 
 xli. 
 
 604, 
 
 xxxiii. 
 
 132, 
 
 Clay, Rollins v. 
 
 xlii. 
 
 395, 
 
 xxxii. 
 
 67, 
 
 Clements, Hobbs v. 
 
 XXX. 
 
 456, 
 
 xxxii. 
 
 279, 
 
 Clements, State v. 
 
 xxxi. 
 
 678, 
 
 xxxviii. 
 
 210, 
 
 Clifford, Brown v. 
 
 xxxviii. 
 
 492,- 
 
 xxxii. 
 
 132, 
 
 Clifford, Hastings v. 
 
 xxxvii. 
 
 558, 
 
 xxxviii. 
 
 213, 
 
 Clifford, Small v. 
 
 XXXV. 
 
 345, 
 
 xxxiii. 
 
 369, 
 
 Clifton, Petitioners. 
 
 xxxi. 
 
 444, 
 
 XXXV. 
 
 26, 
 
 Closson, Webber v. 
 
 xxxvii. 
 
 561, 
 
 xliii. 
 
 677, 
 
 Cloudman, Goodwin v. 
 
 xl. 
 
 304, 
 
 xxxix. 
 
 566, 
 
 Clough, Brown v. 
 
 
 
 xxxviii. 
 
 26, 
 
 Clough, Cochrane v. 
 
 xl. 
 
 333. 
 
 xxxii. 
 
 162, 
 
 Codman, Godfrey v. 
 
 xxxvi. 
 
 264. 
 
 XXX. 
 
 32, 
 
 Colburn, Stowe v. 
 
 xli. 
 
 9. 
 
 xxxv. 
 
 505, 
 
 Colby, Dutton v. 
 
 xxxvi. 
 
 95, 
 
 xlii. 
 
 381, 
 
 Colby, Hardy v. 
 
 xxxviii. 
 
 600. 
 
 XXXV. 
 
 179, 
 
 Colby, Theobald v. 
 
 XXXV. 
 
 405, 
 
 xxxiii. 
 
 662, 
 
 Cole, Littlefield v. 
 
 xxxiii. 
 
 427, 
 
 xxxix. 
 
 188, 
 
 Cole, Manuf. Bank v. 
 
 xl. 
 
 861, 
 
 xlii. 
 
 182, 
 
 Coleman, Hurd v. 
 
 xl. 
 
 603, 
 
 Tryviii. 
 
 581, 
 
 CoUamore, Emerson v. 
 
 xlii. 
 
 367, 
 
 XXX. 
 
 190, 
 
 Collins, Hussey v. 
 
 XXX. 
 
 192, 
 
 xxxiii. 
 
 38, 
 
 Collins, Pike v. 
 
 xliii. 
 
 561, 
 
 xxxix. 
 
 140, 
 
 Comstock, Thayer v. 
 
 XXXV. 
 
 135, 
 
 xxxix. 
 
 78, 
 
 Conley, State v. 
 
 xl. 
 
 308, 
 
 xxxi. 
 
 340, 
 
 Cook, Mixer v. 
 
 xxxiv. 
 
 349, 
 
 xxxi. 
 
 120, 
 
 Cook, Morrell v. 
 
 xxxvi. 
 
 562, 
 
 XXXV. 
 
 207, 
 
 Cook, Morrell v. 
 
 xl. 
 
 9. 
 
 xxxii. 
 
 626, 
 
 Coombs, State v. 
 
 xlii. 
 
 327, 
 
 xxxii. 
 
 529, 
 
 Coombs, State v. 
 
 xxxiv. 
 
 594, 
 
 xxxiv. 
 
 394, 
 
 Cooper, Farrar v. 
 
 xxxviii. 
 
 42, 
 
 xxxvi. 
 
 179, 
 
 Cooper, Franklin Bank v. 
 
 XXX. 
 
 115, 
 
 xxxvi. 
 
 221, 
 
 Cooper, Franklin Bank v. 
 
 xxxvi. 
 
 486, 
 
 xxxix. 
 
 642, 
 
 Cooper, Franklin Bank v. 
 
 xxix. 
 
 467, 
 
 xxxiii 
 
 370, 
 
 Copeland, Parsons v. 
 
 
 
 xxxviii. 
 
 537, 
 
 Copeland, Parsons v. 
 
 xxxvii. 
 
 .76, 
 
 XXX. 
 
 332, 
 
 Copeland, Russell v. 
 
 xxxiv. 
 
 74, 
 
 xxxviii. 
 
 333, 
 
 Copeland, Talbot v. 
 
 xlii. 
 
 362, 
 
 Copeland, Talbot v. 
 
 Corey, Fox v. 
 
 Corliss, Torrey v. 
 
 Comville, State v. 
 
 Cotter, Dam. Toll Bridge v. 
 
 Cottle, Whitney v. 
 
 Couillard, Bryant v. 
 
 County Com'rs, At. & St. 
 Lawrence R. R. Co. v. 
 
 County Com'rs, Bangor v. 
 
 County Com'rs, Bruns- 
 wick V. 
 
 County Com'rs, Cornville v. 
 
 County Com'rs, Detroit v. 
 
 County Com'rs, Frankfort v. 
 I County Com'rs, Guilford v. 
 
 County Com'rs, Hermon v. 
 
 County Com'rs, Lewistou v. 
 
 County Com'rs, Madison v. 
 
 County Com'rs, McKen- 
 ney v. 
 
 County Com'rs, Minot v. 
 
 County Com'rs, Orono v. 
 
 County Com'rs, Oxford v. 
 
 County Com'rs, Page v. 
 
 County Com'rs, Pingree v. 
 
 County Com'rs, Ripley v. 
 
 County Com'rs, Scarboro' v. 
 
 County Com'rs, Smith v. 
 
 County Com'rs, Spofford v. 
 
 County Com'rs, Strong v. 
 
 County Com'rs, Ware v. 
 
 County Com'rs, Wayne v. 
 
 County Com'rs, Williams v. 
 
 County Com'rs, Winslow v. 
 
 County Com'rs, Winslow v. 
 
 County Com'rs, Woodbu- 
 ry V. 
 
 Cousins, Waterhouse v. 
 
 Cowan, Libbey v. 
 
 Cowing, Woodward v. 
 
 Cox, McLellan v. 
 
 Cox, Mercantile Bank v. 
 
 Coyle, Machias Hotel v. 
 
 Coyle, State v. 
 
 Cram, Chapiu v. 
 
 Crehore, Pike v. 
 
 Creighton, Patterson v. 
 
 Crocker, Littlefield v. 
 
 Crocker, Crocker v. 
 
 Crooker, Atkinson v. 
 
 Crooker, Foxcroft v. 
 
 Crooker, Stockbridge v. 
 
 Crosby, Bryant v. 
 
 Crosby, Bryant v. 
 
 Crosby, Lane v. 
 
 Cross, State v. 
 
 Crowell, Kendrick v. 
 
 CroweU, State v. 
 
 Crowley, Mahoney v. 
 
 Cumberland County, 
 Huse V. 
 
 Cummings, Chaffin v. 
 
 Cummings, Mussey v. 
 
 Cunningham, Beal v. 
 
TABLE OP OASES. 
 
 Iv 
 
 xxxiii. 
 
 103, 
 
 xxxix. 
 
 386, 
 
 xxxiv. 
 
 66, 
 
 xlii. 
 
 98, 
 
 xxix. 
 
 376. 
 
 xxxiv. 
 
 192, 
 
 xxxvi. 
 
 161, 
 
 xxxi. 
 
 355, 
 
 xliii. 
 
 474, 
 
 xxxix. 
 
 516, 
 
 xliii. 
 
 355, 
 
 XXX. 
 
 488, 
 
 xxxvii. 
 
 45, 
 
 xlii. 
 
 64, 
 
 xxxix. 
 
 398, 
 
 Cunningham, Brookings v. 
 Cunningham, Duoett t. 
 Cunningham, Gannett v. 
 Cunningham, Oilman v. 
 Cunningham, Mitchell v. 
 Cunningham, Potter v. 
 Cunningham, Snow v. 
 Cunningham, State v. 
 Currier, Edwards v. 
 Currier, Greeley v. 
 Currier, Mason v. 
 Curtis, Cooper v. 
 Curtis, Gilbert v. 
 Curtis, Prescott v. 
 Curtis, Sampson v. 
 
 xli. 
 
 373, 
 
 xxxii. 
 
 383, 
 
 xliii. 
 
 352, 
 
 XXXV. 
 
 634, 
 
 xl. 
 
 316, 
 
 XXXV. 
 
 60, 
 
 xxxvi. 
 
 423, 
 
 xxxviii. 
 
 523, 
 
 XXX. 
 
 267, 
 
 xxxiv. 
 
 370, 
 
 xxxiv. 
 
 428, 
 
 XXX. 
 
 461, 
 
 xxix. 
 
 429, 
 
 xxxi. 
 
 636, 
 
 xlii. 
 
 446, 
 
 Curtis, Simmons v. 
 Curtis, Stackpole v. 
 Curtis, Starbird v. 
 Curtis, White v. 
 Gushing, Fogg r. 
 Gushing, Foster v. 
 Gushing, Huckins v. 
 Gushing, Page v. 
 Gushing, White v. 
 Gushing, Williams v. 
 Cushman, Bolster v. 
 Cushman, Heald v. 
 Cushman, Libbey v. 
 Cutter, Irish v. 
 Cutts, Berry v. 
 
 D. 
 
 xlii. 271, Damon, Guptillv. 
 
 xli. 25, Dana, HaskeU v. 
 
 xxxiii. 182, Dana, Odell v. 
 
 xliii. 566, Darling, Mills v. ' 
 
 xxxiv. 520, Davenport, Smith v. 
 
 xxxiv. 168, Davis, Briggs v. 
 
 XXXV. 379, Davis, Reed v. 
 
 xxxii. 160, Davis, Rounds v. 
 
 xxxiii. 675, Davis, Scudder v. 
 
 xxxviii. 469, Davis, Smith v. 
 
 xxxvi. 399, Davis, Spring v. 
 
 xxxiii. 516, Davis, Walker v. 
 
 xlii. 343, Davis, Warren v. 
 
 xxxi. 494, Day, Blanehard v. 
 
 xli, 382, Day, Forsyth v. 
 
 xxxvii. 386, Day, Morris v. 
 
 xxxvii. 314, Day, Reggio v. 
 
 xxxvii. 244, Day, State v. 
 
 xxxix. 467, Decker, Erskine v. 
 
 xxxviii. 163, Decker, Hughes v. 
 
 xxix. 410, Delano, Philbrook v. 
 
 xxxiii. 171, Denning, Bacon v. 
 
 xxxvi. 9, Dennis, Colby v. 
 
 xxxi. 521, Dennis, Franklin Bank v. 
 
 xxxii. 174, Dexter, Hanson v. 
 
 xxxvi. 516, Dexter, Hanson v. 
 
 xl. 528, Dill, Quimby v. 
 
 xxxiv. 316, Dillingham, Ladd v. 
 
 xxxiii. 384, Dillingham, Smith v. 
 
 xxix. 73, Dingley, Wilkins v. 
 
 xxxvi. 243, Dingley, Williams v. 
 
 xxxiv. 391, Dinsmore, Nason v. 
 
 . XXX. 167, Dixfield, Morrell v. 
 
 xxxviii. 478, Doane, Luce v. 
 
 xxxii. 167, Dodge, Brown v. 
 
 xxxvi. 370, Dodge, Darling v. 
 
 xliii. 489, Dodge, Grant v. 
 
 xxxvi. 494, Doe, Baldwin v. 
 
 xxxviii. 
 
 46, 
 
 xxxix. 
 
 162, 
 
 xxxviii. 
 
 558, 
 
 xl. 
 
 139, 
 
 xxxi. 
 
 104, 
 
 xxxii. 
 
 27, 
 
 xxxiii. 
 
 498, 
 
 xxxiii. 
 
 502, 
 
 xxxii. 
 
 557, 
 
 xxix. 
 
 442, 
 
 xxxiii. 
 
 390, 
 
 xxxii. 
 
 559, 
 
 xxix. 
 
 459, 
 
 xxxiii. 
 
 420, 
 
 xxxvi. 
 
 366, 
 
 xxxiii. 
 
 558, 
 
 xliii. 
 
 468, 
 
 xl. 
 
 172, 
 
 xxxvi. 
 
 89, 
 
 xxviii. 
 
 579, 
 
 xxxiii. 
 
 227, 
 
 xxxvii. 
 
 442, 
 
 xxxix. 
 
 281, 
 
 xxxix. 
 
 587, 
 
 xxix. 
 
 434, 
 
 xxix. 
 
 29, 
 
 XXXV. 
 
 556, 
 
 xxxiv. 
 
 133, 
 
 xl. 
 
 94, 
 
 xxxii. 
 
 197, 
 
 xxxii. 
 
 119, 
 
 xxxiii. 
 
 320, 
 
 xU. 
 
 397, 
 
 xxxii. 
 
 460, 
 
 xl. 
 
 245, 
 
 xxxix. 
 
 169, 
 
 Doe, Hassan v. 
 
 Dole, Chenery v. 
 
 Dole, Parley v. 
 
 Dole, Perley v. 
 
 Dolloff, Covell V. 
 
 Dore, Lowe v. 
 
 Dorr, State v. 
 
 Dougherty, Palmer v. 
 
 Dow, Blanehard v. 
 
 Dow, Foster v. 
 
 Dow, Thomas v. 
 
 Dow, Williamson v. 
 
 Downing, Cushman v. 
 
 Doyle, Allen v. 
 
 Drake, State v. 
 
 Drew, Preston v. 
 
 Drinkwater, Stanley v. 
 
 Dummer, Penobscot R. R. 
 Co. V. 
 
 Duncan, Chadhourne v. 
 
 Dunlap, Glidden v. 
 
 Dunlap, Moore v. 
 
 Dunn, Dockray v. 
 
 Dunn, Morrill v. 
 
 Dunn, Penobscot & Ken- 
 nebec R. R. Co. V. 
 
 Duren, Baxter v. 
 
 Dwinel, Argyle v. 
 
 Dwinel, Blethen v. 
 
 Dwinel, Blethen v. 
 
 Dwinel, Godfrey v. 
 
 Dwinel, Perley v. 
 
 Dwinel, Soper v. 
 
 Dwinel, White v. 
 
 Dyer, Ames v. 
 
 Dyer, Greene v. 
 
 Dyer, Hayford v. 
 
 Dyer, Wilbur v. 
 
 E. 
 
 xxxi. 93, Eames, Hartshorn v. 
 xxxii. 90, Eastern Bank, Lewis v. 
 
 xxix: 307, 
 
 Eastern & Boston & Maine 
 R. R. Go's, Perkins v. 
 
Ivi 
 
 TABLE OF CASES. 
 
 xxvii. 
 
 489, 
 
 XXXT. 
 
 402, 
 
 xl. 
 
 280, 
 
 xxxiii. 
 
 427, 
 
 XXXV. 
 
 391, 
 
 xxxvi. 
 
 298, 
 
 xlii. 
 
 569, 
 
 XXX. 
 
 529, 
 
 xlii. 
 
 541, 
 
 xxix. 
 
 91, 
 
 xxxvii. 
 
 318, 
 
 xxviii. 
 
 275, 
 
 xxxi. 
 
 345, 
 
 xxxix. 
 
 25, 
 
 xli. 
 
 165, 
 
 xxviii. 
 
 436, 
 
 XXXV. 
 
 137, 
 
 xxxiii. 
 
 488, 
 
 xxxii. 
 
 163, 
 
 xxxix. 
 
 319, 
 
 xxxii. 
 
 260, 
 
 East Maohias, Brewer v. 
 East Maohias, Eastport t. 
 East Machias, Eastport v. 
 East Machias, Machias y. 
 Eaton, Columbus Ins. Co. v. 
 Eaton, Smith v. 
 Eaton, Starbird v. 
 Eaton, Watkins v. 
 Eddington, Brewer v. 
 Eddy, Hutchinson v. 
 Edes, Brown v. 
 Edgecomb, Lincoln v. 
 Edgecomb, Lincoln v. 
 Edson, Maun v. 
 Elden, State v. 
 Elliott, Eaton y. 
 Elliott, Jones v. 
 Elliott, "Weeks v. 
 Ellingwood, Patten v. 
 EUis, Burnham v. 
 Ellis, BluehiU Academy y. 
 
 xliii. 
 
 367, 
 
 xxix. 
 
 422, 
 
 xl. 
 
 343, 
 
 xxxii. 
 
 271, 
 
 xxxvi. 
 
 393, 
 
 xxxiv. 
 
 96, 
 
 xxyii. 
 
 308, 
 
 xxxvii. 
 
 16, 
 
 xxxyiii. 
 
 255, 
 
 xxviii. 
 
 492, 
 
 xxxviii. 
 
 484, 
 
 xlii. 
 
 59, 
 
 xlii. 
 
 105, 
 
 xliii. 
 
 371, 
 
 xxxi. 
 
 155, 
 
 xxxiii. 
 
 578, 
 
 XXXV. 
 
 145, 
 
 xxix. 
 
 154, 
 
 xxxvi. 
 
 243, 
 
 xxxiii. 
 
 201, 
 
 xxvii. 
 
 609, 
 
 Ellis, Granite Bank v. 
 EUis, Smith y. 
 Ellsworth, Lake y. 
 Ellsworth, Mason y. 
 Ellsworth, Peck r. 
 Emerson, Bodge y. 
 Emerson, Hammatt v. 
 Emery, Hankerson y. 
 Emery, Mudgett y. 
 Emery, Parker y. 
 Emery, Shaw y. 
 Emery, Shaw y. 
 Enright, Bates v. 
 Erskine, Shaw y. 
 Bstes, Emery y. 
 Estes, Wood y. 
 Estes, Wood v. 
 Esty, Gary v. 
 Esty, Williams y. 
 Everett, Cutler v. 
 Ewer, Miller y. 
 
 F. 
 
 xl. 
 
 43, 
 
 xli. 
 
 307, 
 
 XXX. 
 
 299, 
 
 xxxvii. 
 
 617, 
 
 xlii. 
 
 450, 
 
 xl. 
 
 106, 
 
 xxxvi. 
 
 252, 
 
 xxxiv. 
 
 161, 
 
 xxxvi. 
 
 86, 
 
 2cxxii. 
 
 225, 
 
 XXXV. 
 
 64, 
 
 xxxix. 
 
 474, 
 
 xxxiii. 
 
 253, 
 
 xxvii. 
 
 266, 
 
 xli. 
 
 298, 
 
 xxxvii. 
 
 63, 
 
 xl. 
 
 130, 
 
 xxxU. 
 
 174, 
 
 xxxix. 
 
 297, 
 
 xxxii. 
 
 585, 
 
 xxix. 
 
 136, 
 
 xxix. 
 
 465, 
 
 XXX. 
 
 502, 
 
 xxxiv. 
 
 407, 
 
 xxxiv. 
 
 143, 
 
 XXX. 
 
 623, 
 
 xxxiv. 
 
 172, 
 
 xxxviii. 
 
 324, 
 
 xxxii. 
 
 28, 
 
 xxxiii. 
 
 316, 
 
 xxxiv. 
 
 232, 
 
 xxxiv. 
 
 77, 
 
 xxxviii. 
 
 520, 
 
 xxxi. 
 
 612, 
 
 xlii. 
 
 456, 
 
 xxviii. 
 
 477, 
 
 xxxii. 
 
 175, 
 
 xU. 
 
 264, 
 
 Fairbanks, Bicker y. 
 
 XXX. 
 
 224, 
 
 Fairbanks, Winthrop y. 
 
 xxvii. 
 
 475, 
 
 Fairfield, Hancock y. 
 
 xxxiv. 
 
 392, 
 
 Fairfield, State v. 
 
 XXXV, 
 
 368, 
 
 Fall, Moore v. 
 
 xxxviii. 
 
 425, 
 
 Falmouth, Oldtown y. 
 
 xxxiv. 
 
 198, 
 
 Farmingdale, West Gardi- 
 
 xxix. 
 
 546, 
 
 ner V. 
 
 xxxiii. 
 
 90, 
 
 Farnham, Anderson y. 
 
 xl. 
 
 381, 
 
 Farnham, Randall v. 
 
 xxxix. 
 
 437, 
 
 Farrar, Trundy y. 
 
 xxxi. 
 
 112, 
 
 Farrar, Wyman v. 
 
 XXX. 
 
 459, 
 
 Farrow, Gowdy y. 
 
 xliii. 
 
 364, 
 
 Farwell, Merrick v. 
 
 xxvii. 
 
 441, 
 
 Fassett, Stevens v. 
 
 xl. 
 
 74, 
 
 Faught, Moulton y. 
 
 xxxiv. 
 
 675, 
 
 Faunce, Pierce v. 
 
 xxxi-^. 
 
 545, 
 
 Fay, Jordan v. 
 
 xxxii. 
 
 92, 
 
 Field, Dexter v. 
 
 xxxiii. 
 
 424, 
 
 Field, Fuller v. 
 
 xxxi. 
 
 558, 
 
 Fielding, State y. 
 
 XXX. 
 
 347, 
 
 Fifield, Foster v. 
 
 xxxviii. 
 
 99, 
 
 Fire Ins. Co., Williams v. 
 
 xxxix. 
 
 326, 
 
 Fisher, Hapgood v. 
 
 xxxix. 
 
 668, 
 
 Fisher, Hapgood y. 
 
 xxxi. 
 
 306, 
 
 Fisher, Hill v. 
 
 xxxy. 
 
 89, 
 
 Fisher, Put. Free School v. 
 
 xxxii. 
 
 572, 
 
 Fisher, Put. Free School v. 
 
 XXXV. 
 
 485, 
 
 Fisher, Put. Free School v. 
 
 XXXV. 
 
 483, 
 
 Fisher, Sawyer v. 
 
 xxxi. 
 
 243, 
 
 Fisk, Banchor v. 
 
 XXXV. 
 
 642, 
 
 Fisk, IngaUs v. 
 
 xliii. 
 
 198, 
 
 Fiske, Bailey v. , 
 
 xxxix. 
 
 522, 
 
 Fiske, Hill v. 
 
 
 
 Fiske, Smith y. 
 
 xl. 
 
 293, 
 
 Fitch, Lincoln v. 
 
 xxix. 
 
 77, 
 
 Flagg, Kidder y. 
 
 xxxiii. 
 
 216, 
 
 Flanders, Webb v. • 
 
 xli. 
 
 326, 
 
 Fletcher, Jones v. 
 
 xxxii. 
 
 283, 
 
 Flint, Bean v. 
 Flint, Marsh y. 
 Fogg, Barker v. 
 Fogg, Palmer y. 
 Fogg, Waterhouse y 
 Folsom, Kendall y. 
 Ford, Herbert v. 
 Ford, Herbert v. 
 Ford, Jackson y. 
 Ford, Trask v. 
 ForskoU, Hayes y. 
 Foss, Fisher v. 
 Foss, Golder v. 
 Foss, Holbrook y. 
 Foss, Torrey v. 
 Fossett, Bearce v. 
 Fossett, Little v. 
 Foster, Calef v. 
 Foster,. Waite v. 
 Foster, WardweU y. 
 Fowler, Ayer v. 
 Fowler, Emery y. 
 Fowler, Emery v. 
 Fowler, Hopkins y. 
 Fowles, Benner y. 
 Frankfort, Starbird v. 
 Franklin Bank, Dickey v. 
 Freeman, Baker v. 
 Freeman, Cash y. 
 Freeman, Gammon y. 
 Freeman, Sawyer y. 
 Freeport, State v. 
 French, Augusta Mut. F. 
 
 Ins. Co. V. 
 Frost, Paul v. 
 Frost, Phillips v. 
 Frye, Boynton v. 
 Frye, Day v. 
 Frye, Gragg y. 
 
TABLE OP CASES. 
 
 Ivii 
 
 xliii. 
 
 578, 
 
 Frye, Eedington v. 
 
 xxxviii. 
 
 61, 
 
 xxxiii. 
 
 176, 
 
 Puller, Bradford v. 
 
 xxvii. 
 
 58, 
 
 xl. 
 
 162, 
 
 Puller, Haynes t. 
 
 xxxlx. 
 
 469, 
 
 xxxiv. 
 
 122, 
 
 Puller, Prince v. 
 
 xxxir. 
 
 609, 
 
 xxviii. 
 
 545, 
 
 PuUer, Trull v. 
 
 xxxvi. 
 
 307, 
 
 FuUer, Wellington, v. 
 Fullertou, Patten v. 
 Purbish, Beals v. 
 Purbush, Robinson v. 
 Furlong, McAllister v. 
 
 G. 
 
 xlii. 
 
 247, 
 
 xy-xviii. 
 
 35, 
 
 xli. 
 
 287, 
 
 xxix. 
 
 183, 
 
 XXX. 
 
 539, 
 
 xxxiii. 
 
 187, 
 
 xl. 
 
 232, 
 
 xxxTiii. 
 
 548, 
 
 xU. 
 
 549, 
 
 XXXV. 
 
 247, 
 
 xxxiii. 
 
 94, 
 
 xlii. 
 
 248, 
 
 xxxix. 
 
 601, 
 
 xxxii. 
 
 180, 
 
 xxxviii. 
 
 217, 
 
 xxxiii. 
 
 363, 
 
 xlii. 
 
 178, 
 
 xxxi. 
 
 567, 
 
 ■ xxxii. 
 
 390, 
 
 xxix. 
 
 464, 
 
 xxxii. 
 
 519; 
 
 xxxix. 
 
 496, 
 
 xxxviii. 
 
 260, 
 
 xxxiv. 
 
 654, 
 
 xxxiv. 
 
 101, 
 
 xxxiii. 
 
 273» 
 
 xl. 
 
 88, 
 
 xl. 
 
 578, 
 
 xl. 
 
 378, 
 
 xxxvi. 
 
 36, 
 
 xxxix 
 
 458, 
 
 xxxix 
 
 448, 
 
 xxxi 
 
 435, 
 
 xxxi 
 
 610, 
 
 xxxiv 
 
 517, 
 
 xxxix. 
 
 445, 
 
 xxxiv. 
 
 196, 
 
 xxxii. 
 
 138, 
 
 xl. 
 
 64, 
 
 xxxiv. 
 
 102, 
 
 xxxix 
 
 144, 
 
 xxxvi. 
 
 526, 
 
 XXXV. 
 
 73, 
 
 XXXV. 
 
 456, 
 
 xxxi. 
 
 638, 
 
 Gage, Jewell v. 
 Gage, LoweU v. 
 Gage, Stoddard v. 
 Galvin, Pike v. 
 Galvin, Pike v. 
 Gammon, McKeen v. 
 Gardiner, Merrill v. 
 Gardiner, Chamberlain v. 
 Gardiner, Milo v. 
 Gardiner, Monmouth, v. 
 Gardiner, Stinson v. 
 Gardiner, Stinson v. 
 Gardiner, Trafton v. 
 Garnsey, Gray v. 
 Gatchell, Donnell v. 
 Gates, Chase v. 
 Gates, Monroe v. 
 Gazlin, Otis v. 
 Getchell, Littlefield v. 
 Gibbs, Warren v. 
 Gilbert, Reed v. 
 Gilbreth, Vining v. 
 Gilchrist, Abbott v. 
 Gilchrist, O'Brien v. 
 GiUighan, Hinkley v. 
 Gilman, Whitney v. 
 Gilmore, Bunker v. 
 Gilmore, Hall v. 
 Gilmore, Thurlow v. 
 Glidden, Bryant v. 
 Glidden, Bryant v. 
 Glidden, Clapp v. 
 Glidden, Duulap t. 
 Glidden, Dunlap v. 
 Glidden, Dunlap v. 
 Glidden, Hall v. 
 Glidden, Murphy v. 
 Goddard, Dakin v. 
 Goddard, Foster v. 
 Goddard, Miller v. 
 Goddard, Parker v, 
 Godfrey, Taylor v. 
 Goding, Bangor v. 
 Goldthwaite, Saco W. P. 
 
 Co. V. 
 Goodenow, Stowell v. 
 
 xxxix. 
 
 664, 
 
 xxxvii. 
 
 203, 
 
 xxxii. 
 
 44, 
 
 xxxvii. 
 
 181, 
 
 xliii. 
 
 287, 
 
 xxxii. 
 
 536, 
 
 xxxiv. 
 
 419, 
 
 xliii. 
 
 431, 
 
 xxix. 
 
 346, 
 
 xxxi. 
 
 240, 
 
 xxxvii. 
 
 461, 
 
 xli. 
 
 405, 
 
 xxxix. 
 
 410, 
 
 xxxii. 
 
 381, 
 
 XXXV. 
 
 29, 
 
 xxxviii. 
 
 328, 
 
 xxix. 
 
 160, 
 
 xxxvii. 
 
 236, 
 
 xxix. 
 
 462, 
 
 xlii. 
 
 86, 
 
 xxxiv. 
 
 50, 
 
 XXX. 
 
 647, 
 
 xxxix. 
 
 363, 
 
 xU. 
 
 159, 
 
 xxxix. 
 
 246, 
 
 xxxi. 
 
 343, 
 
 xxxii. 
 
 574, 
 
 XXX. 
 
 460, 
 
 XXX 
 
 452, 
 
 xxxi 
 
 617, 
 
 xxviii 
 
 188, 
 
 xxviii. 
 
 97, 
 
 xxxvii 
 
 306, 
 
 xlii. 
 
 246, 
 
 xxxiv. 
 
 443, 
 
 xxxviii. 
 
 532, 
 
 xxxiv. 
 
 14, 
 
 xxxiii 
 
 527, 
 
 xxxvii. 
 
 149, 
 
 xxxvii. 
 
 156, 
 
 ' xxxii 
 
 687, 
 
 Goodspeed, Spaulding v. 
 Goodwin, Abbott v. 
 Goodwin, Dennett v. 
 Goodwin, Head v. 
 Goodwin, Jellison v. 
 Goodwin, Palmer v. 
 Goodwin, Sawyer v. 
 Goodwin, Wat. Iron Man. 
 
 Co. V. 
 Gore, Merrill v. 
 Gorham, Pray v. 
 Gorham, State v. 
 Gorman, Smith v. 
 Gould, Given v. 
 Gowen, Powers v. 
 Gragg, Prye v. 
 Graham, Sprague v. 
 Graham, Sprague v. 
 Grant, Jeffrey v. 
 Gray, Gent v. 
 Gray, Marks v. 
 Gray, Simonton v. 
 Gray, So. B. Mead. Dam 
 
 Co. V. 
 Gray, State v. 
 Great Falls Manuf 'g Co., 
 
 Worcester v. 
 Great Falls Manuf 'g Co., 
 
 Wooster v. 
 Greeley, Dodge v. 
 Green, Farrar v. 
 Greeubush, Hutchinson v. 
 Greenfield, WiUey v. 
 Greenleaf, State v. 
 Gregg, Godwin v. 
 Grover, Howard v. 
 Grows, Varney v. 
 Guild, Jewett v. 
 Guild, Smith v. 
 Gullifer, Lawrence v. " 
 Gurney, Saco v. 
 Gurney, State v. 
 Gurney, State v. 
 Gurney, State v. 
 Gushee, Fletcher v. 
 
 H. 
 
 xlii. 72, 
 
 xliii. 282, 
 
 xli. 415, 
 
 xxviii. 300, 
 
 Hadlock, Doaue v. 
 Hadlock, State v. 
 Hager, Sidelinger v, 
 Hahn, So. West B. 
 Bridge v. 
 
 H 
 
 xxxi. 418, Haines, Randall v. 
 
 XXX. 66, Haines, State v. 
 
 xxvii. 207, Hains, Poord v. 
 
 xxix. 277, Haley, Dyer v. 
 
Iviii 
 
 TABLE OP CASES. 
 
 X2CXU1. 
 
 xxxi, 
 
 xxix. 
 
 xxxvii. 
 
 xxxvi. 
 
 xl. 
 
 XXX. 
 
 xxxix. 
 XXX vii. 
 
 xxxu. 
 xxviii. 
 xxxvi. 
 xxxii. 
 
 XXXV. 
 
 xxviii. 
 xl. 
 xli. 
 
 XXX. 
 XXJX. 
 
 xxxviii. 
 
 xxxii. 
 
 xxxi. 
 xxxiv. 
 xxviii. 
 
 xxvii. 
 xxxix. 
 xxxix. 
 
 XXXV. 
 
 XXXV. 
 
 XXX. 
 
 xxxii. 
 xlii. 
 
 xxxiii. 
 
 xxxiii. 
 xxxviii. 
 xxxviii. 
 
 XXXV. 
 
 xxvii. 
 
 xli. 
 
 xxvii. 
 
 xxxii. 
 
 xxxiii. 
 
 xxxiii. 
 
 xli. 
 
 xlii. 
 
 xxix. 
 
 xxxvi. 
 
 xl. 
 
 xxxviii. 
 
 xl. 
 
 xxxii. 
 
 xxix. 
 
 xl. 
 
 xxxiii. 
 
 xU. 
 
 xli. 
 
 xxxi. 
 
 xH. 
 
 xl. 
 
 xU. 
 
 xxxiii. 
 
 xxxvi. 
 
 XXXV. 
 
 493, 
 196, 
 
 93, 
 363, 
 501, 
 498, 
 319, 
 107, 
 354, 
 336, 
 
 72, 
 385, 
 573, 
 448, 
 491, 
 511, 
 204, 
 484, 
 414, 
 
 70, 
 581, 
 
 78, 
 
 42, 
 
 93, 
 241, 
 
 63, 
 355, 
 337, 
 506, 
 435, 
 101, 
 339, 
 196, 
 275, 
 193, 
 277, 
 
 54, 
 
 129, 
 
 .9, 
 
 25, 
 649, 
 
 40, 
 127, 
 392, 
 432, 
 287, 
 480, 
 419, 
 132, 
 566, 
 526, 
 456, 
 467, 
 582, 
 169, 
 123, 
 660, 
 
 81, 
 659, 
 145, 
 488, 
 586, 
 136, 
 
 57, 
 
 Hall, Berry v. 
 
 xxxix. 
 
 166, 
 
 Hall, Coltman v. 
 
 xliii. 
 
 204, 
 
 Hall, Copeland v. 
 
 xxxvii. 
 
 397, 
 
 Hall, Hunt v. 
 
 xxxix. 
 
 52, 
 
 Hall, Huntingdon v. 
 
 xxxi. 
 
 558, 
 
 Hall, Musgrave v. 
 
 xxvii. 
 
 354, 
 
 Hall, Payson v. 
 
 xxxi. 
 
 396, 
 
 Hall, State v. 
 
 xKi. 
 
 229, 
 
 Hall, Symonds v. 
 
 xxxii. 
 
 34, 
 
 HaU, Webb v. 
 
 XXXV. 
 
 339, 
 
 Halley, McPhetres v. 
 
 xl. 
 
 102, 
 
 Ham, Ellis v. 
 
 xxxiii. 
 
 297, 
 
 Ham, Mason v. 
 
 xxxiii. 
 
 582, 
 
 Hamblen, Buxton v. 
 
 XXX. 
 
 165, 
 
 Hamblet, Augusta Bank v. 
 
 xxxi. 
 
 662, 
 
 Hammatt, Severance v. 
 
 xxxi. 
 
 420, 
 
 Hammond, Long v. 
 
 xli. 
 
 475, 
 
 Hampden, Bangor v. 
 
 xxix. 
 
 133, 
 
 Hampden Mut. F. Ins. Co., 
 
 xxxi. 
 
 252, 
 
 Abbott V. 
 
 xxxviii. 
 
 78, 
 
 Hampden, Sargent v. 
 
 xxxvii. 
 
 52, 
 
 Hampden, Sargent v. 
 
 xxxvi. 
 
 28, 
 
 Hampden, Sargent v. 
 
 xxxvi. 
 
 22, 
 
 Hancock, Ginn v. 
 
 XXX. 
 
 419, 
 
 Hancock, Fairfield v. 
 
 xxxiv. 
 
 332, 
 
 Haudley, Howe v. 
 
 XXXV. 
 
 547, 
 
 Handley, Pbilbrook y. 
 
 xl. 
 
 64, 
 
 Hanson, Ledden v. 
 
 xliii. 
 
 440, 
 
 Hanson, State v. 
 
 xxxiii. 
 
 684, 
 
 Hanson, Stewart v. 
 
 XXX. 
 
 433, 
 
 Hanson, Whitten v. 
 
 xxxiv. 
 
 200, 
 
 Hanson, Wortheu v. 
 
 xxxviii. 
 
 20, 
 
 Hardy, Adams v. 
 
 xxxiii. 
 
 480, 
 
 Hardy, Hart v. 
 
 xU. 
 
 230, 
 
 Harmon, Eveleth v. 
 
 xl. 
 
 28, 
 
 Harpswell.New Vineyard v. 
 
 xlii. 
 
 665, 
 
 Harriman, Nickerson v. 
 
 xxix. 
 
 273, 
 
 HartweU, DoUoff v. 
 
 XXXV. 
 
 227, 
 
 Hartwell, State v. 
 
 xxxiv. 
 
 357, 
 
 Hasey, Myrick v. 
 
 XXX. 
 
 346, 
 
 Haskell, Dana v. 
 
 xxix. 
 
 148, 
 
 Haskell, Hazzard v. 
 
 xxxix. 
 
 212, 
 
 Haskell, State v. 
 
 xxxii. 
 
 85, 
 
 HaskeU, State v. 
 
 xli. 
 
 131, 
 
 Haskius, Butterfield v. 
 
 xxxvii. 
 
 403, 
 
 Haskins, Wheeler v. 
 
 xxxiii. 
 
 225, 
 
 Hasty, State v. 
 
 xxxi. 
 
 65, 
 
 Hatch, Lawrence v. 
 
 xli. 
 
 120, 
 
 Hatch, Norris v. 
 
 xxvii. 
 
 419, 
 
 Hathaway, Parsons v. 
 
 xxxi. 
 
 407, 
 
 Hawes, McCriUis v. 
 
 xxxvi. 
 
 14, 
 
 Hawkins, Caldwell v. 
 
 xxxix. 
 
 307, 
 
 Hay, Preble v. 
 
 xxvii. 
 
 153, 
 
 Hay, State v. 
 
 xl. 
 
 536, 
 
 Hayden, Eowell v. 
 
 xxxiii. 
 
 172, 
 
 Hayes, Methuen Co. v. 
 
 
 97, 
 
 Hayes, Tewksbury v. 
 
 xH. 
 
 441, 
 
 Haynes, Cutts v. 
 
 xl. 
 
 364, 
 
 Haynes, Foss v. 
 
 xli. 
 
 523, 
 
 Haynes, Maxwell v. 
 
 xxxviii. 
 
 258, 
 
 Haywood, Haynes v. 
 
 xl. 
 
 69, 
 
 Haywood, Haynes v. 
 
 xxvii. 
 
 296, 
 
 Hazard, HaskeU v. 
 
 xxxiv. 
 
 289, 
 
 Heald, Mace v. 
 
 XXX. 
 
 652, 
 
 Henries, Pierce v. 
 
 xl. 
 
 438, 
 
 Henry, Simonds v. 
 Herrick, Cummings v. 
 Herrick, Davis v. 
 Herriman, Pike v. 
 Hersey, Buck v. 
 Hesseltine, Barker v. 
 Hewett, State v. 
 Heywood, Heywood v. 
 Higgins, Ellis v. 
 Higgins, Field v. 
 Higgins, Weston v. 
 Hill, Bicknell v. 
 Hill, Goddard v. 
 Hill, Greenleaf v. 
 Hill, Greenleaf v. 
 Hill, Howard v. 
 Hill, Lumbert v. 
 Hill, Stevens v. 
 Hill, Thomas v. 
 Hill, Webster v. 
 Hillman, Bigelow v. 
 Hilt, Cole V. 
 Hilt, Grose v. 
 Hilton, Haskell v. 
 Hilton, Longley v. 
 HUton, Williams v. 
 Hinckley, Foster v. 
 Hinckley, Stevens v. 
 Hinds, Thompson v. 
 Hinkley, Drummond v. 
 Hinkley, Moody v. 
 Hinkley, State v. 
 Hinman, Bean v. 
 Hobart, Curtis v. 
 Hobart, Hunnewell v. 
 Hobart, Hunnewell v. 
 Hobbs, Bums v. 
 Hobbs, Butinan v. 
 Hobbs, Little v. 
 Hobbs, Prescott v. 
 Hobbs, Spofford v. 
 Hobbs, State v. 
 Hobbs, Wilson v. 
 Hobson, McMillan v. 
 Hobson, Willis v. 
 Hodgdon, Adams v. 
 Hodgdon, Brown v. 
 Hoit, Dearborn v. 
 Holbrook, Butman v. 
 Holcomb, Vose v. 
 Holland, Moore v. 
 Holland, Moore v. 
 Holmes, Baker v. 
 Holmes, Chesley v. 
 Holmes, Dwinel v. 
 Holmes, Dwinel v. 
 Holmes, Fiske v. 
 Holmes, Fletcher v. 
 Holmes, Gooch v. 
 Holmes, Tyler v. 
 Holmes, Veazie v. 
 Holway, Lyford v. 
 Holyoke, Cushman v. 
 Homer, Knowltou v. 
 Homer, State v. 
 
TABLE OP CASES. 
 
 lix 
 
 xxxu. 
 
 36, 
 
 xxxiii. 
 
 256, 
 
 xl. 
 
 457, 
 
 xxxi. 
 
 107. 
 
 XXXT. 
 
 536, 
 
 xxix. 
 
 268, 
 
 xxxix. 
 
 233, 
 
 xxxix. 
 
 451, 
 
 XXXTi. 
 
 15, 
 
 xxxTii. 
 
 411, 
 
 XXXV. 
 
 143, 
 
 xxxi. 
 
 669, 
 
 XXX. 
 
 422, 
 
 XXX. 
 
 258, 
 
 XXX. 
 
 58, 
 
 XXX. 
 
 235, 
 
 xxxi. 
 
 546, 
 
 xl. 
 
 276, 
 
 XXX. 
 
 103, 
 
 xli. 
 
 218, 
 
 xxxi. 
 
 353, 
 
 xxxiv 
 
 376, 
 
 xxxiv 
 
 110, 
 
 xU 
 
 574, 
 
 Homested, Warren v. 
 Homested, "Warren T. 
 Hood, Patten y. 
 Hooper, Dean v. 
 Hooper, Dodge t. 
 Hopkinton, Saco v. 
 Horn, Burbank v. 
 Houdlette, Clancey v. 
 Houdlette, Uran v. 
 HougMon, Hall v. 
 Houghton, Hilton v. 
 Howard, Burnham v. 
 Howard, Crawford v. 
 Howard, Dwiuel t. 
 Howard, Eastman v. 
 Howard, Farrington v. 
 Howard, Grover v. 
 Howard, Sims v. 
 Howard, Waterville v. 
 Howe, Parsons v. 
 Howe, Stetson v. 
 Hoxie, Blanchard v. 
 Huckins, Dow T. 
 Huckins, Hall v. 
 
 xliii. 
 
 255, 
 
 xU. 
 
 410, 
 
 xsxviii. 
 
 137, 
 
 xlii. 
 
 577, 
 
 xxxix. 
 
 347, 
 
 xxxix. 
 
 382, 
 
 xlii. 
 
 276, 
 
 xxxyi. 
 
 217, 
 
 xxxix. 
 
 237, 
 
 XXX. 
 
 263, 
 
 XXXV. 
 
 97. 
 
 xli. 
 
 495, 
 
 xxxii. 
 
 579, 
 
 xxxvii. 
 
 42, 
 
 xxxix. 
 
 312, 
 
 xxxvi. 
 
 142, 
 
 xxviii. 
 
 102, 
 
 xxxix. 
 
 367, 
 
 xxTvii. 
 
 196, 
 
 xxxvi. 
 
 374, 
 
 xxxvi. 
 
 261, 
 
 xxxiv. 
 
 500, 
 
 XXXV 
 
 332, 
 
 Huff, Dyer v. 
 Huff, Parsons v. 
 Huff, Parsons v. 
 Hull, Shepard v. ' 
 Humphreys, Drummond v. 
 Humphrey, Rogers v. 
 Hunnewell, Haynes v. 
 Hunter, Byram v. 
 Huntress. Tiney v. 
 Hussey, Butman v. 
 Hussey, Paul v. 
 Hussey, Shaw v. 
 Hussey, Shorey v. 
 Huston, Eoxbury v. 
 Huston, Roxbuiy v. 
 Hutchins, Gray v. 
 Hutchins, Harris v. 
 Hutchinson, Dunn v. 
 Hutchinson, Low v. 
 Hutchinson, Plantation v. 
 Hutchinson, State v. 
 Hutchinson, State v. 
 Hysom, Furlong T. 
 
 I. 
 
 xl. 569, teland, MerrUl v. 
 xxix. 62, Ireland, Warren v. 
 xxxix. 44, Ixish, Buck. B. E,. E. Co. v. 
 
 xxxi. 254, Irish, Pierce v. 
 xlii. 339, Irving, Kendall v. 
 
 J. 
 
 xxxii. 
 
 419, 
 
 Jackson, Farnsworth v. 
 
 xli. 
 
 15, 
 
 xxxvi. 
 
 404, 
 
 Jackson, Parkhurst v. 
 
 xli. 
 
 582, 
 
 XXX. 
 
 462, 
 
 Jackson, Southerland v. 
 
 xliii. 
 
 180, 
 
 xxxii. 
 
 80, 
 
 Jackson, Sutherland v. 
 
 
 
 XXX. 
 
 29, 
 
 Jackson, State v. 
 
 xxxvi. 
 
 464, 
 
 xxxii. 
 
 40, 
 
 Jackson, State v. 
 
 xxxi. 
 
 414, 
 
 ■s-TTviii. 
 
 259, 
 
 Jackson, State v. 
 
 xxvii. 
 
 357, 
 
 xxxix. 
 
 291, 
 
 Jackson, State v. 
 
 xxxviii. 
 
 185, 
 
 xxix. 
 
 604, 
 
 Jameson, Stai-rett v. 
 
 xxxi. 
 
 528, 
 
 xxxiv. 
 
 360, 
 
 Jarvis, Ken. & P. K. R. 
 
 xxxiv. 
 
 9, 
 
 
 
 Co. V. 
 
 XXXV. 
 
 429, 
 
 xxxi. 
 
 573, 
 
 Jay Bridge, Woodman v. 
 
 XXX. 
 
 367, 
 
 xxxvii. 
 
 9, 
 
 Jay, Gross v. 
 
 XXXV. 
 
 520, 
 
 xxxviii. 
 
 44, 
 
 Jennings, Chase v. 
 
 XXXV. 
 
 23, 
 
 xxxi. 
 
 306, 
 
 Jewell, Crooker v. 
 
 xxvii. 
 
 370, 
 
 xxix. 
 
 527, 
 
 Jewell, Crooker v. 
 
 xxxiv. 
 
 347, 
 
 xxxiv. 
 
 146, 
 
 Jewell, Morrison v. 
 
 xli. 
 
 568, 
 
 xxxiv. 
 
 643, 
 
 Jewell, SawteUe v. 
 
 xl. 
 
 325, 
 
 xxxiii. 
 
 683, 
 
 Jewell, State v. 
 
 xxxiv. 
 
 237, 
 
 xxxvii. 
 
 351, 
 
 Jewett, Chase v. 
 
 XXXV. 
 
 433, 
 
 xxxiv. 
 
 45, 
 
 Jewett, Dockray v. 
 
 
 
 Johnson, Baker v. 
 Johnson, Bradbury v. 
 Johnson, Female Orphan 
 
 Asylum v. 
 Johnson, Locke v. 
 Johnson, Ticonic Bank v. 
 Jones, Derby v. 
 Jones, Jackson v. 
 Jones, Thatcher v. 
 Jordan, Cleaves v. 
 Jordan, Cleaves v. 
 Jordan, Hill v. 
 Jordan, Houston v. 
 Jordan, Perkins v. 
 Jordan, White v. 
 Joy, Emerson v. 
 Joy, Hancock Bank v. 
 Joy, Witherell v. 
 Junkius, Blake v. 
 Junkins, Blake v. 
 
 e:. 
 
 457, Keazer, Sanborn v. 
 336, Keazer, Wentworth v. 
 
 xxxiii. 367, Keazer, Wentworth v. 
 XXXV. 349, Keene, Fisk v. 
 
Ix 
 
 TABLE OP CASES. 
 
 xxxiv. 
 
 500, 
 
 xxxiv. 
 
 199, 
 
 xxxYiii. 
 
 595, 
 
 xxTviii. 
 
 456, 
 
 XTrTviii. 
 
 215, 
 
 xli. 
 
 436, 
 
 xxvii. 
 
 237, 
 
 XXX. 
 
 47, 
 
 XXXIX. 
 
 298, 
 
 XXX. 
 
 118, 
 
 xxxi. 
 
 470, 
 
 XXXTi. 
 
 34, 
 
 xxxi. 
 
 197, 
 
 xixv. 
 
 255, 
 
 xxxi. 
 
 215, 
 
 XXXV. 
 
 319, 
 
 xxx-viii. 
 
 227, 
 
 xxxyiii. 
 
 26, 
 
 Keene, State v. 
 
 Keep, Shaw v. 
 
 Kelley, Bray v. 
 
 Kelley, Hanson v. 
 
 Kelley, Patten v. 
 
 Kelley, Prentiss t. 
 
 Kelley, Smith t. 
 
 Kelley, Wood v. 
 
 Kelsey, CoUen v. 
 
 Kempton, Stanley v. 
 
 Kendall, Ken. & P. R. R. 
 Co.T. 
 
 Ken. 85 P. R. R. Co., Fai- 
 rin y. 
 
 Ken. & P. R. R. Co., Pow- 
 ler V. 
 
 Ken. & P. R. R. Co., Kim- 
 ball T. 
 
 Ken. & P. R. R. Co., Ma- 
 son V. 
 
 Ken. & P. R. R. Co., Rog- 
 ers V. 
 
 Ken. & P. R. R. Co., Rog- 
 ers V. 
 
 Ken. & P. R. R. Co., Whit- 
 tieer v. 
 
 . 325, 
 . 455, 
 
 xxxii. 
 
 334, 
 
 JUUiJ. 
 
 288, 
 
 xxxii. 
 
 464, 
 
 XXXV 
 
 126, 
 
 xxxvii. 
 
 550, 
 
 xxvii. 
 
 252, 
 
 xxxix. 
 
 413, 
 
 xlii. 
 
 299, 
 
 xxviii. 
 
 463, 
 
 xxix. 
 
 448, 
 
 xxxvi. 
 
 235, 
 
 xxxix. 
 
 164, 
 
 xxxii. 
 
 100, 
 
 xxix. 
 
 120, 
 
 xxxiv. 
 
 402, 
 
 xxix. 
 
 341, 
 
 xxix. 
 
 471, 
 
 xliii. 
 
 11, 
 
 XXX. 
 
 402, 
 
 xxxiii. 
 
 208, 
 
 xxxi. 
 
 77, 
 
 xy-vv. 
 
 467, 
 
 Ken, Mut. Ins. Co., Pul- 
 ler y. 
 
 Ken. Mut. Ins. Co., 
 Williams v. 
 
 Kenney, Fuller v. 
 
 Keuney, Sweetser v. 
 
 Kenney, Sweetser v. 
 
 Kerswell, Coburn v. 
 
 Kerswell, McNally v. 
 
 Kilbume, Aiken v. 
 
 Kimball, Clifford v. 
 
 Kimball, Gray v. 
 
 Kimball, Richardson v. 
 
 King, Patch v. 
 
 Kingfield, Augusta v. 
 
 Kirby, Holt v. 
 
 Kittredge, Morrison v. 
 
 Knapp, Eaton v. 
 
 Knapp, Pierce v. 
 
 Knight, Marston v. 
 
 Knight, Pratt v. 
 
 Knight, State v. 
 
 Knowles, Jones v. 
 
 Knowles, Sawyer v. 
 
 Knowlton, Abbott v. 
 
 Knowlton, Johnson v. 
 
 L. 
 
 xxxiii 
 
 343, 
 
 xli 
 
 314, 
 
 xxxvi 
 
 388, 
 
 xxxii. 
 
 268, 
 
 xxxiii 
 
 87, 
 
 XXX. 
 
 185, 
 
 ,xn.x. 
 
 137, 
 
 xxxii. 
 
 97, 
 
 xxxix. 
 
 119, 
 
 XXX. 
 
 223, 
 
 xxxiii. 
 
 536, 
 
 xxxix. 
 
 200, 
 
 xxxiii. 
 
 360, 
 
 xxxviii. 
 
 464, 
 
 xxxvii. 
 
 506, 
 
 xxvii. 
 
 449, 
 
 xxxix. 
 
 282, 
 
 xxxvi. 
 
 362, 
 
 xxxii. 
 
 586, 
 
 xxix. 
 
 480, 
 
 xl. 
 
 256, 
 
 xxxvii. 
 
 543, 
 
 XXXV. 
 
 39, 
 
 xxxviii. 
 
 432, 
 
 xlii. 
 
 572, 
 
 xxxviii. 
 
 9, 
 
 xxxvii. 
 
 110, 
 
 xxxii. 
 
 183, 
 
 XXXV. 
 
 488, 
 
 XXXI, 
 
 124, 
 
 XXX. 
 
 392, 
 
 xliii. 
 
 158, 
 
 xxvii. 
 
 174, 
 
 xxxy. 
 
 195, 
 
 Laboree, Manning v. 
 Ladd, Smith v. 
 Lake, Chamberlain v. 
 Lake, Doane v. 
 Lake, Stuart v. 
 Lambert, Collins v. 
 Lambert, Smith v. 
 Lambert, Larrabee v. 
 Lamson, Colby v. 
 Lamson, Dennett y. 
 Lane, State v. 
 Eangley, Newbegin v. 
 LansU, Osgood v. 
 Larrabee, JDwinel v. 
 Larrabee, Gibbs v. 
 Larrabee, Hathaway y. 
 Larrabee, Moody v. 
 Lavasseur, Thibodeau y. 
 Lawrence, Franklin Bank y. 
 Lawrence, Hatch v. 
 Lawrence, Sawyer v. 
 Lawton, Beemau v. 
 Leach, Brown v. 
 Leach, State v. 
 Leadbetter, HUl v. 
 Leadbetter, Pratt y. 
 Learned, Roach y, 
 Leavitt, State v. 
 LeBallistier, Whitmore y. 
 Lebanon, Sanford v. 
 Lee, Cole v. 
 Leeman, O'DouneU y. 
 Leeman, Wingate y. 
 Leighton, State v. 
 
 xxix 
 
 233, 
 
 -ylii'i 
 
 144, 
 
 xxxiii 
 
 492, 
 
 xHi 
 
 308, 
 
 xxxii 
 
 516, 
 
 xxxvi. 
 
 340, 
 
 xxxiv. 
 
 167, 
 
 • xxix. 
 
 472, 
 
 xxxvi. 
 
 19, 
 
 xxxvi. 
 
 350, 
 
 xxxiii. 
 
 74, 
 
 xxxvii. 
 
 473, 
 
 xxxii. 
 
 378, 
 
 xxxy. 
 
 200, 
 
 xxxvii. 
 
 49, 
 
 xxxii. 
 
 305, 
 
 xl. 
 
 394, 
 
 xxxviii. 
 
 200, 
 
 xxxiv. 
 
 310, 
 
 xxxi. 
 
 422, 
 
 xxxvi. 
 
 428, 
 
 xxxvii. 
 
 546, 
 
 xl. 
 
 287, 
 
 xxxvi. 
 
 170, 
 
 xU. 
 
 69, 
 
 XXXV. 
 
 107, 
 
 xxix. 
 
 302, 
 
 XXXV. 
 
 439, 
 
 xl. 
 
 266, 
 
 xxxii. 
 
 494,' 
 
 xxxiv. 
 
 552, 
 
 XXX. 
 
 204, 
 
 Leland, Haines v. 
 Leonard,- Lewiston FaUs 
 
 Bank y. 
 Lermond; Weed v. 
 Levant, Ripley y. 
 Lewis, Blaisdell y. 
 Lewis, Cook y. 
 Lewis, Thompson y. 
 Lewiston, Briggs y. 
 Lewiston W. P. Co., 
 
 Kendall v. 
 Libbey, Herriu v. ' 
 Libbey, Mitchell v. 
 Libbey, Moulton v. 
 Libbey, Patten y. 
 Libbey, Rogers y. 
 Libbey, Tweed v. 
 Light, Mathews y. 
 Light, Mathews y. 
 Lightij'ody, State v. 
 Lincoln, Corinth v. 
 Lincoln, Dole v. 
 Linnaeus, Brewer y. 
 Lint, Smith v. 
 Lisbon, Robbinston y. 
 Little, Allen v. 
 Little, Storer y. 
 Little, Wood v. 
 Littlefield, Bourne v. 
 Littlefield, Cole v. 
 Livermore, Drew v. 
 Longfellow, McLellan y. 
 Longfellow, McLellan v. 
 Loomis, Knight v. 
 
TABLE OP CASES. 
 
 Ixi 
 
 xxx.. 
 
 220. 
 
 Longley, Hilton v. 
 
 ixxiv. 
 
 201, 
 
 xxix. 
 
 61, 
 
 Lord, Carr v. 
 
 xxxii. 
 
 164, 
 
 xliii. 
 
 290, 
 
 Lord, Cleaves v. 
 
 xxxiii. 
 
 446, 
 
 xlu. 
 
 652, 
 
 Lord, Treat v. 
 
 xxxiii. 
 
 318, 
 
 xxxix. 
 
 71, 
 
 Lord, Wentworth v. 
 
 XXXV. 
 
 411, 
 
 xlii. 
 
 481, 
 
 Loring, Puller v. 
 
 xxxi. 
 
 346, 
 
 xxxvii. 
 
 408, 
 
 Loring, Milliken T. 
 
 xxxvi. 
 
 16, 
 
 xxxix. 
 
 434, 
 
 Lothrop, Call v. 
 
 xxvii. 
 
 286, 
 
 xxxix. 
 
 431, 
 
 Lothrop, Chapman v. 
 
 xxxiv. 
 
 456, 
 
 zxxiii. 
 
 464, 
 
 Levering, Osgood v. 
 
 xxxvii. 
 
 246, 
 
 XXXT. 
 
 121, 
 
 Low, Pattee v. 
 
 xxxiv. 
 
 332, 
 
 xxxii. 
 
 466, 
 
 Low, Moulton v. 
 
 xxxiv. 
 
 79, 
 
 xxxvi. 
 
 138, 
 
 Lowe, Pattee v. 
 
 xxxvi. 
 
 440, 
 
 xl. 
 
 197, 
 
 Lowder, Thurston v. 
 
 xH. 
 
 469, 
 
 XXX, 
 
 217, 
 
 Lowell, Dyer v. 
 
 XXX. 
 
 253, 
 
 TTY-yui. 
 
 260, 
 
 Lowell, Dyer v. 
 
 xxxvii. 
 
 423, 
 
 XXXV. 
 
 638, 
 
 Lowell, Jones v. 
 
 xxxvii. 
 
 69, 
 
 xxxiv. 
 
 299, 
 
 Lowell, Kinnear v. 
 
 xxxix. 
 
 267, 
 
 xxxii. 
 
 245, 
 
 Lowell, Pike v. 
 
 xxxvii. 
 
 260, 
 
 Lowell, Eawson v. 
 Lowell, Saekett v. 
 Lowell, Sweetser v. 
 Lowell, Whitney v. 
 Lubec, Houlton v. 
 Luce, Hovey v. 
 Luce, Partridge v. 
 Luce, Swift V. 
 Ludwig, Powler v. 
 Lull, State v. 
 Lumbert, Burleigh v. 
 Lumbert, Larrabee v. 
 Lumbert, Larrabee v. 
 Lumbert, MePhetres T. 
 Lumbert, Sibley v. 
 Lunt, Brown v. 
 Lunt, Larry v. 
 Lyford, Houghton v. 
 Lyman, Tripp v. 
 
 M. 
 
 xliii. 
 
 264, 
 
 xxxiii. 
 
 419, 
 
 xxxiii. 
 
 44,5, 
 
 xxxviii. 
 
 343, 
 
 xlii. 
 
 119, 
 
 xxix. 
 
 564, 
 
 xxxiii 
 
 267, 
 
 xli. 
 
 104, 
 
 xxxi. 
 
 469, 
 
 XXX. 
 
 509, 
 
 XXXV 
 
 225, 
 
 xxxiii 
 
 242, 
 
 xliii 
 
 492, 
 
 xli. 
 
 594, 
 
 xxxiv. 
 
 647, 
 
 xlii 
 
 349, 
 
 xxxiii 
 
 268, 
 
 xxix. 
 
 659, 
 
 xxxviii. 
 
 586, 
 
 xliii. 
 
 490, 
 
 xxix. 
 
 337, 
 
 xxxiii. 
 
 106, 
 
 xxvii. 
 
 212, 
 
 XXXV. 
 
 181, 
 
 xli. 
 
 362, 
 
 xKii. 
 
 272, 
 
 XXX. 
 
 511, 
 
 xxxiv. 
 
 379, 
 
 XXXV. 
 
 153, 
 
 xxvii. 
 
 196, 
 
 xxxiv. 
 
 386, 
 
 xxxi. 
 
 292, 
 
 xxxiv. 
 
 339, 
 
 xxxvi. 
 
 431, 
 
 xxxviii. 
 
 461, 
 
 xxxviii. 
 
 173, 
 
 xxxvii. 
 
 641, 
 
 Maberry, Littlehale v. 
 Maohias, Campbell v. 
 Machias, Heminway v. 
 Machias Water Power & M. 
 
 Co., Freeman v. 
 Maohias Water Power & M. 
 
 Co., Morse v. 
 Macomber, Lime R. Bank v. 
 Madison, State v. 
 Magoon, Files v. 
 Magrath, State v. 
 Maguire, Pingree v. 
 Maher, State v. 
 Maine Mut. Mar. Ins. Co., 
 
 Percival v. 
 Maine Tel. Co., Dickey v. 
 Maker, Cutler v. 
 Mallett, Lime R. Bank v. 
 Mallett, Lime R. Bank v. 
 Mann, Clark v. 
 Mann, Moore v. 
 Mansfield, Rounds v. 
 Mansfield, Thompson T. 
 Manufacturer's lus. Co., 
 
 Motley V. 
 March, Rogers v. 
 Marr, Given v. 
 Marr, Paine v. 
 Marr, Spinney v. 
 Marshall, Andrews v. 
 Marshfield, Calais v. 
 Marston, Dunn v. 
 Marston, Miller v. 
 Marston, Parker v. 
 Marston, Parker v. 
 Marston, State v. 
 Martin, Hudson v. 
 Mason, Deunison v. 
 Mason, Hill v. 
 Matthews, Achorn v. 
 Matthews, Haskell v. 
 
 xxxi. 
 
 318, 
 
 xxxi. 
 
 134, 
 
 xxxiii. 
 
 518, 
 
 xliii. 
 
 322, 
 
 xli. 
 
 662, 
 
 xxxiv. 
 
 139, 
 
 xl. 
 
 133, 
 
 xliii. 
 
 667, 
 
 xxxviii. 
 
 664, 
 
 xxviii. 
 
 424, 
 
 xxxii. 
 
 442, 
 
 xxxi. 
 
 168, 
 
 xxxii. 
 
 418, 
 
 XXXV. 
 
 398, 
 
 xxxviii. 
 
 287, 
 
 xliii. 
 
 485, 
 
 xxix. 
 
 206, 
 
 XXXV. 
 
 106, 
 
 xxxii. 
 
 131, 
 
 xl. 
 
 198, 
 
 xxxvi. 
 
 555, 
 
 xliii. 
 
 177, 
 
 xhi. 
 
 392, 
 
 xxxiv, 
 
 510, 
 
 xxix. 
 
 115, 
 
 xxxix. 
 
 131, 
 
 xlii. 
 
 157, 
 
 xxxiii. 
 
 327, 
 
 xxxviii. 
 
 513, 
 
 xxxiv. 
 
 210, 
 
 xU. 
 
 665, 
 
 xxxvi. 
 
 176, 
 
 xl. 
 
 114, 
 
 xl. 
 
 337, 
 
 xxxiii. 
 
 496, 
 
 XXXV. 
 
 78, 
 
 xxxviii. 
 
 414, 
 
 xxxiv. 
 
 586, 
 
 xl. 
 
 237, 
 
 xxix. 
 
 260, 
 
 Matthews^ Jenks v. 
 Maxwell, Littlefield v. 
 Mayo, Bartlett v. 
 Mayo, Hovey v. 
 Mayo, Jordan v. 
 Mayo, Thayer v. 
 McAloon, State v. 
 McArthur, Morrison v. 
 McCard, Chandler v. 
 McClintock, Tufts v. 
 McCrate, Barnes v. 
 McCuUock, Nason v. 
 McDonald, Pike v. 
 McDougald, Stuart v. 
 MoGilvery, Black v. 
 McGilvery, True v, 
 McHenry, Very v. 
 Mclntire, Bailey v. 
 Mclntire, Paine v. 
 Mclntire, Freeze v. 
 McKenney, Bachelder v. 
 McKenney, Richards v. 
 McKenzie, State v. 
 McKown, Eaton v. 
 McLagin, Corliss v. 
 MoLanathan, Stone v. 
 McLarren, Rice v. 
 McLaughlin, Kittredge v. 
 McLaughlin, Kittredge v. 
 McNally, State v. 
 McNamara, Emerson v. 
 McNamara, Stevens v. 
 MePhetres, Rogers v. 
 Means, Closson v. 
 Means, White v. 
 Megquire, Hopkins v, 
 Mer. Mut. Ins. Co., 
 
 Folsom V. 
 Merrill, Head v. 
 Merrill, Nutt v. 
 Merrill, Sproule v. 
 
Ixii 
 
 TABLE OP CASES. 
 
 XIXVU. 
 
 xxxiii. 
 
 xxxiv. 
 
 xl. 
 
 xU. 
 
 xxxviii. 
 
 xxviii. 
 
 XXX, 
 
 xxxvii. 
 xxxiv. 
 xxxviii. 
 xxxiii. 
 xxxiv. 
 xxxii. 
 xxxi. 
 
 XXXIV. 
 XXXV. 
 
 xxxi. 
 
 XXXV. 
 
 xxxvi. 
 
 xxxiii. 
 
 xli. 
 
 XXXV. 
 
 xH. 
 
 XXX. 
 
 xxxvii. 
 xxxvit 
 xxxiv. 
 xxxiii. 
 
 329, Merrill, State v. 
 
 62, Merrill, Sturtevant v. 
 
 69, Merriman, Bactelder v. 
 
 451, Merritt, Kobbins v. 
 
 151, Marrow, Weeks v. 
 
 601, Merryman, Melcher v. 
 
 122, Metcalf, Clark v. 
 
 389, Metcalf, Denny v. 
 
 431, Miles, Bunker v. 
 
 312, Miller, Robinson v. 
 
 388, MUler, Sweeny v. 
 
 108, Miller, Warren v. 
 
 220, Miller, Warren t. 
 
 429, Millett, Davis v. 
 55, 67, Milo, State v. 
 299, Miuot, Verrill v. 
 890, Mitchell, Bruce v. 
 465, Mitchell, Call v. 
 247, Mitchell, Ellsworth v. 
 227, Mitchell, Marshall v. 
 
 221, Mitchell, Marshall v. 
 287, Mitchell, Smith v. 
 281, Mitchell, Thompson v. 
 309, Monroe, Pike v. 
 
 430, Monson, Doe v, 
 239, Moody, Dunn v. 
 214, Moody, Lithgow v. 
 127, Moody, Lord v, 
 327, Moore, Kendall v. 
 208, Moore, Lord v. 
 
 47, Moore, Thompson v, 
 
 112, Moore, Treadwell v. 
 
 511, Moore, Waldo v. 
 
 xlii. 
 
 44, 
 
 xl. 
 
 129, 
 
 xl. 
 
 687, 
 
 xl. 
 
 615, 
 
 xli. 
 
 588, 
 
 xxxvii. 
 
 419, 
 
 xliii. 
 
 168, 
 
 xxxviii. 
 
 468, 
 
 xxxiii. 
 
 301, 
 
 xU. 
 
 467, 
 
 xxxii. 
 
 190, 
 
 xxxii. 
 
 287, 
 
 xxxix. 
 
 105, 
 
 xliii. 
 
 176, 
 
 xxxvi. 
 
 240, 
 
 xl. 
 
 348, 
 
 xxxviii. 
 
 47, 
 
 xliii. 
 
 370, 
 
 xxyvii. 
 
 367, 
 
 xxvii. 
 
 496, 
 
 xxxiii. 
 
 455, 
 
 xxxvi. 
 
 287, 
 
 xxxvi. 
 
 390, 
 
 XXXV, 
 
 100, 
 
 xxxviii. 
 
 90, 
 
 xli. 
 
 281, 
 
 xxxvii. 
 
 376, 
 
 xxxiv. 
 
 34, 
 
 xK, 
 
 109, 
 
 
 50, 
 
 xxix. 
 
 490, 
 
 Moran, Brown v. 
 Moran, State v. 
 Morang, Pinkham T. 
 More, Hill v, 
 Morey, Freeman v. 
 Morgan, Gooding v, 
 Morgan, Gooding v. 
 Morgan, Smith v. 
 Morrell, Hammond v. 
 Morrell, Sanborn v. 
 Morrison, Cartland v. 
 Morse, Hanley v. 
 Morse, Mayberry v. 
 Morse, Mayberry v. 
 Morse, Kichards v. 
 Morse, Titus v. 
 Morton, Williams v. 
 Moulton, French v. 
 Moulton, Jose v. 
 Moulton, Simmons v. 
 Mowry, Merrill v. 
 Mowry, Thayer v. 
 Mt. Desert, Tremont v. 
 Mt. Vernon, Lawrence v. 
 Muncey, Davis v. 
 Murdough, Wellington v. 
 Mussey, Jordan v. 
 Myers, Mahan v, 
 Myers, York & Cumberland 
 
 R. R. Co. V. 
 Myrick, Bailey v. 
 Myrick, Jackson v. 
 
 N. 
 
 xxxii. 
 
 411, 
 
 Nash, Davis v. 
 
 xxxiv. 
 
 208, 
 
 xli. 
 
 685, 
 
 Nash, HiU V, 
 
 xl. 
 
 212, 
 
 xxxvii. 
 
 322, 
 
 Nash, Powers v. 
 
 xxxiv. 
 
 682, 
 
 xxxviii. 
 
 85, 
 
 Nason, Jackson r. 
 
 xxxii. 
 
 233, 
 
 xxxvi. 
 
 407, 
 
 Neal, Brown v. 
 
 xxix. 
 
 566, 
 
 xxxvii. 
 
 468, 
 
 Neal, State v. 
 
 xxvii. 
 
 106, 
 
 xxxix. 
 
 422, 
 
 Neal, Wise v. 
 
 xxxi. 
 
 131, 
 
 xxxix. 
 
 402, 
 
 NeaUy, Commercial Bank v. 
 
 xxxiii. 
 
 258, 
 
 xxvii. 
 
 525, 
 
 Nelson, Hardy v. 
 
 xxxii. 
 
 380, 
 
 xxvii. 
 
 129, 
 
 Nelson, MeLeUan v. 
 
 xl. 
 
 459, 
 
 xxix. 
 
 329, 
 
 Nelson, State v. 
 
 xxxii. 
 
 113, 
 
 xxxviii. 
 
 193, 
 
 Nevins, Reed v. 
 
 xxxvi. 
 
 419, 
 
 xxxiv. 
 
 64, 
 
 Nevins, Wheeler v. 
 
 XXXV. 
 
 112, 
 
 xxxiv. 
 
 15, 
 
 Newbegin, Howe v. 
 
 xli. 
 
 265, 
 
 xliii. 
 
 293, 
 
 Newbegin, Newton v. 
 
 xxxviii. 
 
 76, 
 
 xxxvii. 
 
 137, 
 
 New England M. F. Ins. 
 
 
 
 
 
 Co., Philbrook v. 
 
 xli. 
 
 291, 
 
 xxxi. 
 
 219, 
 
 New England M. F. Lis. 
 
 
 
 
 
 Co., Williams v. 
 
 xxxiv. 
 
 487, 
 
 xxxviii. 
 
 179, 
 
 Newhall, Lincoln Acad'y v. 
 
 xxxiv. 
 
 411, 
 
 xxxiv. 
 
 266, 
 
 New Limerick, Packard v. 
 
 XXXV. 
 
 309, 
 
 xhiL 
 
 318, 
 
 New Sharon, Rawson v. 
 
 xxxvi. 
 
 113, 
 
 xxxix. 
 
 368, 
 
 New Sharon, Starks v. 
 
 XXX. 
 
 194, 
 
 xU. 
 
 221, 
 
 Newton, Dixfield v. 
 
 xxix. 
 
 419, 
 
 xliii. 
 
 315, 
 
 New Vineyard, Wilton T, 
 
 xxxix. 
 
 384, 
 
 xxxii. 
 
 179, 
 
 Nichols, George v. 
 
 xxvii. 
 
 230, 
 
 XXXV. 
 
 328, 
 
 Nichols, Glass v. 
 
 xxxix. 
 
 359, 
 
 Nichols, Knight v. 
 Nichols, Sawyer v, 
 Nichols, Sewall v. 
 Nichols, Wheeler v. 
 Nichols, Wilson v. 
 Nickerson, Huff v. 
 Niles, Pond v. 
 Noble, Gates v. 
 Noble, Emerson v. 
 Noble, Hull V. 
 Noonen, Alden v. 
 Norris, Hatch v. 
 Norris, Turner v. 
 North, Stone v. 
 North Wayne Scythe Co,, 
 
 Underwood v. 
 North Wayne Scythe Co., 
 
 Underwood v. 
 N. W. Ins. Co., Cushman v. 
 No. Yarmouth, Yarmouth v. 
 Norton, Gennings v. 
 Norton, Moses v. 
 Norton, Valentine v. 
 Norton, Winslow v. 
 Noyes, Perrin v. 
 Noyes, Wood v. 
 Nutting, State v. , 
 
TABLE OP CASES. 
 
 Ixiii 
 
 xl. 
 
 481, 
 
 j^xxiii. 
 
 496, 
 
 xxvii. 
 
 341, 
 
 xxviii. 
 
 442, 
 
 XXXTi. 
 
 92, 
 
 xxxii. 
 
 253, 
 
 xxxiy. 
 
 181, 
 
 xl. 
 
 589, 
 
 0. 
 
 Ocean Ins. Co., Prince v. 
 O'Conner, Roberts v. 
 Odlin, Pierce v. 
 Oliver, Putnam v. 
 Oliver, White v. 
 Oppenheimer, Lee v. 
 Oppenheimer, Lee v. 
 Orcutt, Kidder v. 
 
 xxxvi. 376, 
 xxxix. 231, 
 xxxii. 256, 
 xxxvi. 381, 
 xxxviii. 429, 
 xH. 478, 
 
 Orland, Brown v. 
 Osbom, Herrick v. 
 Otis, Crosby v. 
 Otis, Hamlin v. 
 Otis, Jordan v. 
 Oxford Co. Commissioners, 
 Bethel v. 
 
 xxxvii. 112, Oxford, iSumner v. 
 
 P. 
 
 XXX. 460, 
 xxxii. 513, 
 xxxii, 404, 
 xxxvi. 105, 
 xlii. 296, 
 XXXV. 158, 
 xlii. 197, 
 xxxiv. 366, 
 
 XXX. 467, 
 xxxvii. 379, 
 
 9, 
 486, 
 179, 
 438, 
 631, 
 509, 
 544, 
 143, 
 
 31, 
 489, 
 452, 
 593, 
 138, 
 
 66, 
 353, 
 102, 
 103, 
 142, 
 483, 
 429, 
 
 25, 
 544, 
 282, 
 257, 
 569, 
 498, 
 499, 
 273, 
 502, 
 425, 
 
 IS, 
 109, 
 521, 
 361, 
 385, 
 9, 
 152, 
 
 XXXI. 
 
 yyyiii. 
 
 xxxiii, 
 
 xxvii. 
 
 xxviii. 
 
 xliii. 
 
 xxxi. 
 
 xxxiii, 
 
 xxxviii. 
 
 xli. 
 
 xxxiv. 
 
 XXXV. 
 
 xlii. 
 xxxviii. 
 
 xxxvii. 
 xxxviii. 
 
 xxxix. 
 
 xxxiii. 
 
 XXX. 
 
 XXXVI. 
 
 xxxviii. 
 
 xlii. 
 
 xxxii. 
 
 xxxix. 
 
 xxix. 
 
 xxxvi. 
 
 xlii. 
 
 xli. 
 
 xxxix. 
 
 xl. 
 
 xxxii. 
 
 xxxvii. 
 
 XXXV. 
 
 xxix, 
 
 . xl. 
 
 Page, Boyd v. 
 Page, MoKenney v. 
 Page, Pulcifer v. 
 Paine, Coburn v. 
 Paine, Mayhew v, 
 Paine, Neal v. 
 Palmer, Ames v. 
 Palmer, Ken. & P, R. E. 
 
 Co. V. 
 Palmer, Langley v. 
 Palmer, Prop'rs of Long 
 
 Wharf V. 
 Palmer, State v. 
 Palmer, Tilton v. 
 Paris, Oxford v. 
 Park, Sullivan v. 
 Parker, Allen v. 
 Parker, Carter v. 
 Parker, Gates v. 
 Parker, Hobbs v. 
 Parker, Lyman v. 
 Parker, Nash v. 
 Parker, Smith v. 
 Parker, Woodcock v. 
 Parker, Woodcock v. 
 Partridge, Temple v. 
 Pattee, Balch v. 
 Pattee, .Chute v. 
 Pattee, Frohock v. 
 Patten, MoLanathan v. 
 Patten, Partridge v. 
 Patten, Wilkins v. 
 Patten, Winslow v, 
 Patterson, Gilmore y, 
 Patterson, Lufkin v. 
 Patterson, Mathews v. 
 Patterson, Pettingill v. 
 Patterson, Pettingill t. 
 Patterson, Trask v. 
 Patterson, Walker v. 
 Paulk, Bragg v. 
 Paulk, Foster v. 
 Paulk, Paine v, 
 Paulk, Veazie Bank v. 
 ■ Payson, Law v, 
 Payson, State v. 
 Peacock, Stone v. 
 Pearson, Bartlett v, 
 Pearson, Walker v. 
 
 xl. 
 
 430, 
 
 xxxi. 
 
 267, 
 
 xxxii. 
 
 178, 
 
 xlu. 
 
 89, 
 
 xlii. 
 
 168, 
 
 xxxii. 
 
 320, 
 
 xxviii. 
 
 22, 
 
 xlii. 
 
 130, 
 
 xxxii. 
 
 197, 
 
 xxxviii. 
 
 509, 
 
 xxxiv. 
 
 29, 
 
 XXX. 
 
 148, 
 
 xxxiii. 
 
 159, 
 
 xl. 
 
 565, 
 
 xUii. 
 
 432, 
 
 xxxiv. 
 
 35, 
 
 xxxii. 
 
 136, 
 
 xxxiii. 
 
 396, 
 
 xxxii. 
 
 102, 
 
 xxxix. 
 
 29, 
 
 xxxi. 
 
 401, 
 
 xxxviii. 
 
 135, 
 
 xxxiii. 
 
 366, 
 
 xxxiv. 
 
 532, 
 
 xxxiii 
 
 17, 
 
 xli. 
 
 132, 
 
 XXX, 
 
 455, 
 
 xxix. 
 
 255, 
 
 XXXV. 
 
 184, 
 
 xxxvi. 
 
 551, 
 
 xxxii. 
 
 439, 
 
 xlii. 
 
 384, 
 
 xxix. 
 
 313, 
 
 xl. 
 
 548, 
 
 xxxi. 
 
 177, 
 
 xxxiii. 
 
 350, 
 
 xxxii. 
 
 165, 
 
 xxxvi. 
 
 448, 
 
 xxxviii. 
 
 447, 
 
 xU. 
 
 629, 
 
 xxxvi. 
 
 455, 
 
 xliii. 
 
 530, 
 
 xxxiii. 
 
 204, 
 
 xxxiii. 
 
 213, 
 
 xxxiv. 
 
 233, 
 
 xU. 
 
 340, 
 
 XXXV. 
 
 291, 
 
 Pennell, Elmer v. 
 
 Pennell, Small v. 
 
 Pennington, Foster v. 
 
 Penobscot, Hinckley v. 
 
 Perkins, Foster y. 
 
 Perkins, GUman v. 
 
 Perkins, Scott v. 
 
 Perkins, Stedman v. 
 
 Perley, Dwinel v, 
 
 Perley, Dwinel v. 
 
 Perley, Hunt v. 
 
 Perry, Clark v. 
 
 Perry, Hunter v. 
 
 Persons unknown, Bum- 
 ham V. 
 
 Persons unknown, Coe v. 
 
 Persons unknown, Field v. 
 
 Persons unknown, Hatha- 
 way V. 
 
 Peters, French v. 
 
 Philbrick, Moore v. 
 
 Philbrick, Boss v. 
 
 Philbrick, State v. 
 
 Philbrook, Kennedy v. 
 
 Philbrook, McDonald T. 
 
 Philbrook, North v. 
 
 Philbrook, Pratt v, 
 
 Philbrook, Pratt v. 
 
 Phillips, .rones v. 
 
 Phillips, Joy v. 
 
 Phillips, Livermore v. 
 
 Phillips, Wight v. 
 
 Phinney, State v. 
 
 Phinney, State v. 
 
 Phipsburg, HarpsweU v. 
 
 Pickering, Hall v. 
 
 Pierce, Crocker v. 
 
 Pierce, Lord v. 
 
 Pierce, Mudge v. 
 
 Pierce, Pratt v. 
 
 Pierce, Purriugton v. 
 
 Pierce, Purrington v. 
 
 Pierce, Reed v. 
 
 Pierce, Taylor v. 
 
 Pike, Abbott v. 
 
 Pike, Baker v. 
 
 Pike, Greaton v. 
 
 Pike, Howe v. 
 
 Pike, Johnson v. 
 
Ixiv 
 
 TABLE OP CASES. 
 
 Trliii. 
 
 423, 
 
 2cxxUi. 
 
 141, 
 
 xli. 
 
 340, 
 
 xlii. 
 
 141, 
 
 xxxiii. 
 
 361, 
 
 Trxxvi. 
 
 278, 
 
 xliii. 
 
 299, 
 
 xxx. 
 
 508, 
 
 XXX. 
 
 508, 
 
 xliii. 
 
 601, 
 
 XTtxiii. 
 
 32. 
 
 xxxvii. 
 
 252, 
 
 xxxiv. 
 
 98, 
 
 ■JTTXvi. 
 
 84, 
 
 xxxviii. 
 
 439, 
 
 xxxi. 
 
 603, 
 
 XXXTl. 
 
 466, 
 
 xxxvi. 
 
 64, 
 
 xxxi. 
 
 338, 
 
 xliii. 
 
 463, 
 
 XXX. 
 
 491, 
 
 xxxiii. 
 
 388, 
 
 xlii. 
 
 93, 
 
 XXTV. 
 
 19, 
 
 xxxviii. 
 
 237, 
 
 xxxvii. 
 
 462, 
 
 xl. 
 
 416, 
 
 xxxviii. 
 
 243, 
 
 xxxix. 
 
 604, 
 
 xxxviii. 
 
 289, 
 
 xxxix. 
 
 157, 
 
 XXXV. 
 
 287, 
 
 xxvii. 
 
 405, 
 
 XXXV. 
 
 475, 
 
 xxxix. 
 
 113, 
 
 Pike, Kennedy v. 
 Pike, Lombard v. 
 Pike, Lovett v. 
 Pike, Perkins v. 
 Pike, State v. 
 Pillsbury, Porter v, 
 Pingree, Loomis v. 
 Pingree, Maguire v. 
 Pingree, McGlinchey v. 
 Pinkham; Keith v. 
 Pinkham, Palmer v. 
 Pinkham, Palmer v. 
 Piper, Ravson v. 
 Piper, Southard v. 
 Piscataquis Mut. Ins. Co., 
 
 Gardiner v. 
 Pishon, Clark v. 
 Plumley, True v. 
 Plummer, Southard v. 
 Polereczky, Allen v. 
 Pollard, Lakeman v. 
 PoUeys, Purlong v. 
 Pomroy, Sargent v. 
 Pope, Bohannan v. 
 Pope, MacHsis River Co. v. 
 Poor, Pitman v. 
 Poor, Smith v. 
 Poor, Smith v. 
 Poor, Wentworth v. 
 Porter, Bowker v. 
 Porter, Deshon v. 
 Porter, Holmes v. 
 Porter, Smith v. 
 Porter, Soutter v. 
 Portland, Andrews v. 
 Portland, Blaisdell v. 
 
 xxxii. 
 
 431, 
 
 xxxvii. 
 
 444, 
 
 XXXV. 
 
 65, 
 
 XXXV. 
 
 422, 
 
 xxxi. 
 
 228, 
 
 xxxi. 
 
 167, 
 
 xxxii. 
 
 376, 
 
 xUi. 
 
 50, 
 
 xxxi. 
 
 501, 
 
 xxvii. 
 
 381, 
 
 xxxvi. 
 
 448, 
 
 xxxiv. 
 
 148, 
 
 xxxiiL 
 
 558, 
 
 xxvii. 
 
 400, 
 
 xxxiii. 
 
 214, 
 
 xxxiii. 
 
 211, 
 
 xxxiii. 
 
 174, 
 
 xli. 
 
 105, 
 
 xl. 
 
 404, 
 
 XXX. 
 
 211, 
 
 xxix. 
 
 97, 
 
 XXX. 
 
 273, 
 
 xxix. 
 
 317, 
 
 xxix. 
 
 469, 
 
 xlii. 
 
 332, 
 
 xlii. 
 
 244, 
 
 xxviii. 
 
 419, 
 
 xxxviii. 
 
 296, 
 
 xxxi. 
 
 667, 
 
 Portland, Greene v. 
 
 Portland, Mar. Railway v. 
 
 Portland Steam Packet Co., 
 Moran v. 
 
 Portland, Saco 8s P. R. R. 
 Co., Waldron v. 
 
 Ports. Saco & P., & E. R. R. 
 Co's, Sager v. 
 
 Pottle, Dwinel v. 
 
 Powers, Moulton v. 
 
 Pratt, Dauforth v. 
 
 Pratt, Franklin Bank v. 
 
 Pratt, French v. 
 
 Pratt, Pierce v. 
 
 Preble, Eldridge v. 
 
 Preston, Drew v. 
 
 Preston, Jewett v. 
 
 Preston, Searl v. 
 
 Preston, Withee v. 
 
 Prince, Bridgham v. 
 
 Prince, Freeland v. 
 
 Propr's of East Bridge, 
 Patterson v. 
 
 Prospect, Palmyra v. 
 
 Protection Ins. Co., Moore v. 
 
 Protection Ins. Co., Rich- 
 ards V. 
 
 Protection Ins. Co., Walk- 
 er V. 
 
 Purinton, Coolbroth v. 
 
 Purrington, Coombs v. 
 
 Putnam, Haskell v. 
 
 Putnam, Quimby v. 
 
 Putnam, State v. 
 
 Putnam, Turner v. 
 
 Q. 
 
 196, Quimby, Longfellow v. 
 
 xxxiii. 457, Quimby, Longfellow v. 
 
 E. 
 
 XXX. 
 
 354, 
 
 Rackliff, Chadboume v. 
 
 xxviii. 
 
 481, 
 
 xliii. 
 
 280, 
 
 Raitt, Perkins v. 
 
 XXX. 
 
 105, 
 
 xxix. 
 
 362, 
 
 Rand, "Winslow v. 
 
 xxxiv. 
 
 660, 
 
 xxxiii. 
 
 202, 
 
 Randall, Ditson v. 
 
 xxviii. 
 
 458, 
 
 XXX. 
 
 168, 
 
 Randall, Witherell v. 
 
 XXXV. 
 
 489, 
 
 XXX. 
 
 180, 
 
 Ranger, Woodman v. 
 
 XXXV. 
 
 176, 
 
 xxxii. 
 
 59, 
 
 Readfield, Bangor v. 
 
 xxxvi. 
 
 108, 
 
 xxvii. 
 
 145, 
 
 Readfield, Smith v. 
 
 xxix. 
 
 360, 
 
 xl. 
 
 336, 
 
 Redman, Bonzey v. 
 
 xxxviii. 
 
 195, 
 
 XXX. 
 
 536, 
 
 Redman, LeBairon v. 
 
 xxvii. 
 
 657, 
 
 xxxviii. 
 
 578, 
 
 Redman, Stone v. 
 
 xU. 
 
 233, 
 
 xl. 
 
 331, 
 
 Reed, Dodge v. 
 
 xxxviii. 
 
 376, 
 
 xxxix. 
 
 416, 
 
 Reed, Duncan v. 
 
 xxxviii. 
 
 379, 
 
 xxxviii. 
 
 246, 
 
 Reed, Knowlton v. 
 
 xxxvi. 
 
 485, 
 
 xxviii. 
 
 87, 
 
 Reed, Leighton v. 
 
 XXXV. 
 
 267, 
 
 XXXV. 
 
 172, 
 
 Reed, McLellan v. 
 
 xxxvii. 
 
 438, 
 
 xxxix. 
 
 41, 
 
 Reed, Min. & School Fund 
 
 xxix. 
 
 415, 
 
 
 
 of Audover v. 
 
 xxix. 
 
 281, 
 
 Reed, Morse v. 
 Reed, Shaw v. 
 Keed, Shumway v. 
 Reed, Stanley v. 
 Reed, State v. 
 Reed, Swanton v. 
 Rhodes, Long v. 
 Rhodes, Smith v. 
 Rich, Hunt v. 
 Rich, Rollins v. 
 Richards, And. R. R. Co. v. 
 Richards, Donahoe v. 
 Richards, Donahoe v. 
 Richards, Rollins v. 
 Richardson, Farnsworth v. 
 Richardson, Moore v. 
 Richardson, Usher v. 
 Bicker, Ricker v. , 
 
TABLE OP CASES. 
 
 Ixv 
 
 xliii. 
 
 575, 
 
 Bicker, Soutliard v. 
 
 xxix. 
 
 323, 
 
 xxix. 
 
 84, 
 
 Ricker, State v. 
 
 xxix. 
 
 292, 
 
 xxvii. 
 
 114, 
 
 Eiggs, White v. 
 
 
 
 xxxix. 
 
 9> 
 
 Eines, Jewett v. 
 
 xli. 
 
 363, 
 
 xxxii. 
 
 177, 
 
 Rines, Smith v. 
 
 xxxiii. 
 
 222, 
 
 xl. 
 
 116, 
 
 Ring, 'Wilson v. 
 
 xxxii. 
 
 624, 
 
 XXXV. 
 
 472, 
 
 Ripley, Murdock v. 
 
 xxxi. 
 
 350, 
 
 xxxi. 
 
 386, 
 
 Ripley, State v. 
 
 xxxii. 
 
 159, 
 
 xl. 
 
 425, 
 
 Ritchie, York & Cumb. R. 
 
 xxxvii. 
 
 400, 
 
 
 
 R. Co. V. 
 
 xxxiv. 
 
 226, 
 
 xxix. 
 
 351, 
 
 Robbins, Jones v. 
 
 xxxvii. 
 
 230, 
 
 xxxii. 
 
 181, 
 
 Robbins, WUliams v. 
 
 -k-xxlii. 
 
 197, 
 
 XXXV. 
 
 75, 
 
 Roberts, Bannister v. 
 
 xU. 
 
 360, 
 
 xxxvii. 
 
 239, 
 
 Roberts, Blaisdell v. 
 
 xxxii. 
 
 160, 
 
 xxxix. 
 
 104, 
 
 Roberts, Furbish v. 
 
 xxxiii. 
 
 357, 
 
 xl. 
 
 187, 
 
 Roberts, Hunt v. 
 
 XXXV. 
 
 414, 
 
 xxxiv. 
 
 135, 
 
 Roberts, Sargent v. 
 
 xxxiii. 
 
 263, 
 
 xxxiv. 
 
 320, 
 
 Roberts, State v. 
 
 xl. 
 
 181, 
 
 xxxix. 
 
 205, 
 
 Robie, Pierce v. 
 
 xxxi. 
 
 212, 
 
 xxxi, 
 
 189, 
 
 Robinson, Fowler v. 
 
 xxvii. 
 
 31, 
 
 xl. 
 
 412, 
 
 Robinson, Gushee v. 
 
 xlii. 
 
 365, 
 
 xxxiii. 
 
 114, 
 
 Robinson, King v. 
 
 xxxiii. 
 
 360, 
 
 xlu 
 
 589, 
 
 Robinson, Richmond 
 
 xxxiii. 
 
 196, 
 
 
 
 Bank v. 
 
 xxxvi. 
 
 115, 
 
 xxix 
 
 531, 
 
 Robinson, Spear v. 
 
 xli. 
 
 445, 
 
 xxxiii 
 
 564, 
 
 Robinson, State v. 
 
 xlu. 
 
 360, 
 
 xxxix 
 
 150, 
 
 Robinson, State v. 
 
 XXX. 
 
 454, 
 
 Robinson, Taylor v. 
 Rockingham M. F. Ins. Co., 
 
 Adams v. 
 Rockland, Mitchell v. 
 Rogers, Davis v. 
 Rogers, Drake v. 
 Rogers, Lambaid v. 
 Rogers, Levant v. 
 Rolfe, Portland v. 
 Rollins, Stevens v. 
 Ross, Lewis v. 
 Ross, Lyford v. 
 Ross, Moses v. 
 Rounds, Mansfield v. 
 Rounds, PhUlips v. 
 Rowe, Earl v. 
 Rowe, Farnsworth v. 
 Rowe, Haynes v. 
 Rowe, Smith v. 
 Rundlett, Fullerton v. 
 Rundlett, Plummer v. 
 579, Russ, Blake v. 
 Russell, Ballard v. 
 Russell, Howe v. 
 Russell, Howe v. 
 Russell, Phillips v. 
 Russell, Spooner v. 
 
 s. 
 
 xl. 274, Sao. N. & M. Co., Small v. 
 
 XXXV. 447, Salmon Falls Manuf g Co., 
 
 Harmon v. 
 
 xxvii. 539, Salmond, Sargent v. 
 
 xxxiv. 230, Sanborn, Bachelder v. 
 
 xxxviii. 32, Sanborn, "Whittier v. 
 
 xxvii. 468, Sands, Chamberlain v. 
 
 xxxii. 148, Sanford, Knowlton v. 
 
 xxxiii. 547, Sanford Manuf 'g Co., 
 Wentworth v. 
 
 xl. 117, Sanford, McQuesten V. 
 
 xxxix. 183, Sanford, Powers v. 
 
 xxvii. 338, Sargent, Bugbee v. 
 
 xxxii. 429, Sargent, State v. 
 
 xxxviii. 315, Sargent, Wesley v. 
 
 xxxvi. 409, Saunders, Burrell v. 
 
 xxxviii. 350, Saunders, Howe v. 
 
 xxxvi. 413, Saunders, Nickerson v. 
 
 xxxii. 188, Saunders, White v. 
 
 xxxviii. 128, Savage, Marston v. 
 
 xxxii. 683, Savage, State v. 
 
 XXX. 389, Sawtelle, Davis v. 
 
 xxxii. 163, Sawyer, Ayer v. 
 
 xxix. 117, Sawyer, Dow v. 
 
 XXX. 226, Sawyer, Flint v. 
 
 xxxiii. 641, Sawyer, Goodwin v. 
 
 xxxviii. 37, Sawyer, Ham v. 
 
 xxvii. 234, Sawyer, Haskell v. 
 
 xxxiv. 540, Sawyer, Motley v. 
 
 xxxviii. 68, Sawyer, Motley v. 
 
 xxxvii. 406, Sawyer, Raymond v. 
 
 xxxix. 528, Sawyer, Totman v. 
 
 xxxiii. 323, Sayward, White v. 
 
 xli. 
 
 561, 
 
 xxxix. 
 
 68, 
 
 xxxiii. 
 
 170, 
 
 xxxix. 
 
 559, 
 
 XXX. 
 
 110, 
 
 xxxviii. 
 
 164, 
 
 xxxiii. 
 
 239, 
 
 xxviii. 
 
 193, 
 
 xH. 
 
 246, 
 
 xxxix. 
 
 666, 
 
 xxxvi. 
 
 541, 
 
 xxxvi. 
 
 168, 
 
 xli. 
 
 277, 
 
 xxxix. 
 
 287, 
 
 xlii. 
 
 202, 
 
 xxviii. 
 
 45, 
 
 xli. 
 
 370, 
 
 xxxvi. 
 
 102, 
 
 xxxvi. 
 
 71, 
 
 xl. 
 
 247, 
 
 xxxviii. 
 
 427, 
 
 xxxii. 
 
 394, 
 
 xliii. 
 
 519, 
 
 xxxiv. 
 
 202, 
 
 xxxvi. 
 
 225, 
 
 Scammon, Scammon v. 
 
 Scannell, State v. 
 
 School District in Bethel, 
 Estes V. 
 
 School District in Fayette, 
 Fellows V. 
 
 School District in Gardiner, 
 Rhodes v. 
 
 School District in Lisbon, 
 Jordan v. 
 
 School District in Smith- 
 field, Landers v. 
 
 School District in Liver- 
 more, Soper V. 
 
 School District in Readfield, 
 Haines v. 
 
 School District in Vienna, 
 Tozier v. 
 
 Schwartz, Gilman v. 
 
 Scribner, Doe v. 
 
 Scribner, Doe v. 
 
 Scruton, Moulton v. 
 
 Searsport, Larrabee v. 
 
 Seavey, Bramhall v. 
 
 Seavey, Pratt v. 
 
 Seccomb, Chapman v. 
 
 Seccomb, Medcalf v. 
 
 Seelye, Whidden v. 
 
 Sellers, Carpenter v. 
 
 Senter, Andrews v. 
 
 ■Sevey, Porter v. 
 
 Sewall, Brunswick Bank v. 
 
 Seymour, State v. 
 
Ixvi 
 
 TABLE OP CASES. 
 
 XXXV. 315, Shattuck, Newbit v. 
 
 xxxiii. 278, Shapleigh, Oldtowu t. 
 
 xlii. 32, Sha-w, Pisher v. 
 
 xl. 56, Shaw, Gowen v. 
 
 xxxTiii. 267, Shaw, Merrill v. 
 
 xxxi. 523, Shaw, State v. 
 
 xxxii. 570, Shaw, State v. 
 
 xllii. 429, Shaw, Warren v. 
 
 xxviii. 550, Shepherd, Corliss v. 
 
 XXX. 173, Shepherd, Noyes v. 
 
 xxxii. 143, Sheperd, McLaughlin v. 
 
 xxxvi. 295, Sherlock, Wilson v. 
 
 xxix. 555, Sherman, Plummer v. 
 
 xxxiv. 344, Sherman, Stiles v. 
 
 xxxiii. 609, Sherwood, Rankin v. 
 
 xxxii. 424, Shields, Johnson v. 
 
 xl. 386, Shipbuilders' Bank, Leath- 
 ers v. 
 
 xxxiii. 271, Shirley, Weeks v. 
 
 xl. 356, Sibley, Weed v. 
 
 xxxix. 21, Simpson, Whitcomb v. 
 
 XXXV. 464, Skeetup, Woodman v. 
 
 xxxiv. 270, Skinner, Eoby v. 
 
 xl. 224, Slayton, Whitney v. 
 
 XXX. 30, Small, RoweU v. 
 
 xxxviii. 264, Smart, Whitcomb y. 
 
 xxvii. 225, Smiley, Ticonic Bank v. 
 
 XXXV. 324, Smith, Adams v. 
 
 xxxix. 203, Smith, Austin v. 
 
 xlii. 414, Smith, Benson v. 
 
 xxxiv. 63, Smith, Bird v. 
 
 xxxii. 244, Smith, Crocker v. 
 
 xxxiv. 247, Smith, Cushman v. 
 
 XXX. 370, Smith, Dillingham v. 
 
 xxxii. 182, Smith, Dillingham v. 
 
 xxxviii. 114, Smith, Ellis v. 
 
 xxxiv. 33, Smith, Evans v. 
 
 XXXV. 513, Smith, Gould v. 
 
 xxvii. 237, Smith, Kelley v. 
 
 xxxi. 162, Smith, Kendrick v. 
 
 xxxvii. 394, Smith, Merrill v. 
 
 xxxii. 406, Smith, Moulton v. 
 
 xxix. 228, Smith, Southwick v. 
 
 xxxii. 369, Smith, State v. 
 
 xxxiii. 48, Smith, State v. 
 
 xxix. 387, Smith, Sturdivant v. 
 
 xxviii. 106, Smith, Tobie v. 
 
 xxxvii. 21, Smith, Woodman v. 
 
 xxxvii. 100, Snell, French v. 
 
 xlii. 63, Snell, Pingree v. 
 
 XXX. 364, Snow, Atkinson v. 
 
 xxxiii. 679, Snow, Atkinson v. 
 
 XXXV. 342, Snow, Tallman v. 
 
 xhu. 356, Som. & K. R. R. Co., 
 
 Nichols V. 
 
 xliii, 337, Som. & K. R. R. Co., 
 
 Vassalboro' v. 
 
 xlii. 221, Som. M. F. Ins. Co., 
 Pollard V. 
 
 xxxvii. 29, Somerset, Woodman v. 
 
 xxxii. 119, Soper, Dwinel v. 
 
 xxxii. 39, Soule, Benson v. 
 
 xxxix. 122, Soule, Furlong v. 
 
 xxxvi, 147, Southard, Malbon v. 
 
 xxxix. 404, Southard, Rouse v. 
 
 XXX. 
 
 425, 
 
 xxviii. 
 
 41, 
 
 xxxix. 
 
 316, 
 
 xliii. 
 
 336, 
 
 xxix. 
 
 112, 
 
 xxxi. 
 
 91, 
 
 xU. 
 
 272, 
 
 xxxviii. 
 
 30, 
 
 xxix. 
 
 107, 
 
 xxxiii. 
 
 527, 
 
 xxxi. 
 
 39, 
 
 xxxi. 
 
 34, 
 
 XXXV. 
 
 626, 
 
 xl. 
 
 328, 
 
 XXX. 
 
 466, 
 
 xxxii. 
 
 243, 
 
 v-yyiii. 
 
 440, 
 
 xxxiv. 
 
 296, 
 
 xxviii. 
 
 127, 
 
 XXXV. 
 
 161, 
 
 xxxviii. 
 
 190, 
 
 xxix. 
 
 268, 
 
 xxxi. 
 
 71, 
 
 xxxii. 
 
 310, 
 
 xxxii. 
 
 322, 
 
 xxxiii. 
 
 508, 
 
 xxxi. 
 
 73, 
 
 xxxviii. 
 
 283, 
 
 xH. 
 
 302, 
 
 xU. 
 
 321, 
 
 xxxiv. 
 
 515, 
 
 xxxvii. 
 
 11, 
 
 xxxiii. 
 
 307, 
 
 xxxiii. 
 
 494, 
 
 xxviii. 
 
 497, 
 
 xxxix. 
 
 166, 
 
 xxxvii. 
 
 228, 
 
 xxxii. 
 
 176, 
 
 xxvii. 
 
 138, 
 
 xliii. 
 
 345, 
 
 xxxvi. 
 
 198, 
 
 xxxvi. 
 
 62, 
 
 xxxvii. 
 
 177, 
 
 xHi. 
 
 518, 
 
 xxxii. 
 
 17, 
 
 XXX. 
 
 231, 
 
 xxviii. 
 
 434, 
 
 xxxix. 
 
 632, 
 
 xxxiii. 
 
 678, 
 
 XXX. 
 
 184, 
 
 xxxi. 
 
 454, 
 
 xl. 
 
 569, 
 
 xxxvii. 
 
 519, 
 
 xxxi. 
 
 566, 
 
 xxxi. 
 
 515, 
 
 xxviii. 
 
 266, 
 
 xxxviii. 
 
 361, 
 
 xxix. 
 
 164, 
 
 XXXV. 
 
 427, 
 
 xxxiii. 
 
 646, 
 
 xxxviii. 
 
 149, 
 
 xxxiii. 
 
 341, 
 
 XXX. 
 
 237, 
 
 Southard, Wellman v. 
 Southgate, Morton v. 
 So. Paris Manuf 'g Co., 
 
 Whitney v. 
 Spaulding, Dunn v. 
 Spaulding, Williams v. 
 Spear, Thorndike v. 
 Spencer, Nye v. 
 Spencer, State v. 
 Spiller, GiUigan v. 
 Spirituous Liquors, State v. 
 SpofFord, Barnard v, 
 Spofford, Buck v. 
 Spoflford, Buck v. 
 Spofford, Buck v. 
 Spofford, Co. Com'rs v. 
 Sprague, English v, 
 Sprague, English v, 
 Sprague, McAllister v. 
 Spring, Rangely v. 
 Sprowl, Cole v. 
 Sprowl, Cole v, 
 Sproule, Hardy v. 
 Sproule, Hardy v. 
 Sproule, Hardy v. 
 Sproule, Hardy v. 
 Sproule, Hardy v. 
 Sprowl, Holmes v. 
 Stackpole, McGilvery v. 
 Stackpole, Ticonic Bank v. 
 Stackpole, Ticonic Bank v. 
 Stanley, Boothby v. 
 Stanley, Smith v. 
 Stanwood, Skeele v. 
 Staples, Berry v. 
 Staples, Brown v. 
 Staples, Libbey v. 
 Staples, State v. 
 Starbird, Ellsworth v. 
 Starrett, Chadwick v, 
 Starrett, McArthur v. 
 State, Barnett v. 
 State, Heald v. 
 State, Lord v. 
 Steele, Noble v. 
 Stetson, Footman v. 
 Stetson, Warren v. 
 Stevens, A. & K. R. R. 
 
 Co. V. 
 Stevens, Franklin Bank v. 
 Stevens, Hinds v, 
 Stevens, Pierce v. 
 Stevens, Rollins v. 
 Stevens, Stale v. 
 Steward, Franklin Bank v. 
 Stewart, Kempton v. 
 Stewart, State v. 
 St. George, Kellogg v. 
 Stickney, Bridges v. 
 Stiles, Wight v. 
 Stillings, Johnson v. 
 Stinson, DoUoff v. 
 Stinson, Theobald v. 
 Stockwell, Cleaves v. 
 Stockwell, Hesseltine v. 
 
TABLE OF CASES. 
 
 Ixvii 
 
 XXX. 
 
 38i, 
 
 Stone, Dwinel t. 
 
 xxxi. 
 
 57, 
 
 xxxiii. 
 
 500, 
 
 Stone, Hathaway y. 
 
 xxxiii. 
 
 539, 
 
 xxxvii. 
 
 86, 
 
 Stowe, Eastman t. 
 
 xxix. 
 
 458, 
 
 xxviii. 
 
 216, 
 
 Stowell, Houghton v. 
 
 xl. 
 
 260, 
 
 xliii. 
 
 497, 
 
 Stowers, Herriman v. 
 
 xxxii. 
 
 247, 
 
 XXX. 
 
 458, 
 
 Straw, Avery v. 
 
 xxxix. 
 
 126, 
 
 xxxiv. 
 
 166, 
 
 Straw, Huckins v. 
 
 xxxix. 
 
 400, 
 
 xxxiii. 
 
 554, 
 
 Straw, State v. 
 
 XXXV. 
 
 41, 
 
 xxxii. 
 
 174, 
 
 Strickland, Brown v. 
 
 XXXV. 
 
 535, 
 
 xxvii. 
 
 443, 
 
 Strickland, Garlin v. 
 
 XXX. 
 
 162, 
 
 XXXV. 
 
 92, 
 
 Stubbs, Luce v. 
 
 xxxii. 
 
 246, 
 
 xxxiii. 
 
 481, 
 
 Stubbs, Swett v. 
 
 xxxiii. 
 
 479, 
 
 xjuav. 
 
 178, 
 
 Stubbs, Swett v. 
 
 xxxi. 
 
 192, 
 
 XXX. 
 
 40, 
 
 Sturtevant, Abbott v. 
 
 xxxi. 
 
 555, 
 
 xxxTii. 
 
 308, 
 
 Sturdivant, Farwell v. 
 
 xU. 
 
 65, 
 
 xxix. 
 
 366, 
 
 Sturdivant, Harris y. 
 
 xxvii. 
 
 536, 
 
 xxxiv. 
 
 63, 
 
 Sturdivant, Harris v. 
 
 xxxvi. 
 
 128, 
 
 xxxii. 
 
 325, 
 
 Sturtevant, Plummer v. 
 
 
 
 Suffolk Bank, Merrill v. 
 Suhur, State v. 
 Swallow, Packard v. 
 Swan, Chadbourne v. 
 Swan, "VVitherell v. 
 Swanton, Oxnard v. 
 Swanton, Page v. 
 Swazey, Buck v. 
 Swazey, Dodge v. 
 Swasey, Hodge v. 
 Sweetsir, Smith v. 
 Swett, Ames v. 
 Swett, Humphreys v. 
 Swett, Tultle v. 
 Swift, Pickett v. 
 Sylvester, Elwell v. 
 Symonds, State v. 
 
 T. 
 
 XXXIX. 
 
 xxxiii. 
 xxxviii. 
 
 XXXV. 
 
 xlii. 
 
 xxvii. 
 xxxiv. 
 
 xxvii. 
 
 xxvii. 
 xxxvii. 
 
 XXX. 
 
 xxxix. 
 xxxii, 
 xxxii. 
 
 619, 
 199, 
 298, 
 274, 
 329, 
 
 68, 
 472, 
 
 17, 
 
 78, 
 509, 
 
 27, 
 129, 
 
 55, 
 173, 
 514, 
 329, 
 224, 
 608, 
 
 28, 
 434, 
 242, 
 360, 
 322, 
 
 xxxiii. 76, 
 XXXV. 86, 
 
 xxxiii. 368, 
 xxxviii. 266, 
 xxxviii. 232, 
 
 xxviii. 259, 
 
 XXIX. 
 
 xxxvi. 
 xxxii. 
 
 xxxui. 
 
 xlii. 
 
 xliii. 
 
 xxviii. 
 
 xxxiii. 
 
 xU. 
 
 xxvii. 
 
 xxxviii. 
 
 xxxiv. 
 
 xxxvi. 
 
 xl. 
 
 xxxii. 
 
 dv. 
 
 406, 
 81, 
 433, 
 639, 
 470, 
 171, 
 496, 
 366, 
 284, 
 497, 
 207, 
 
 Tabor, Fuller v. 
 Taft, Usher v. 
 Taggart, State y. 
 Tallmau, Bates v. 
 Tallman, Crooker v. 
 Tallman, Groton v. 
 Tallman, Mason y. 
 Tallman, Patten v. 
 Tallman, Sturtevant v. 
 Tarbell, Young v. 
 Tarbox, SewaU v. 
 Tarbox, Grosveuor v. 
 Tarr, Cragiu v. 
 Tay, Reed v. 
 Taylor, Barnes v. 
 Taylor, Barnes v. 
 Taylor, Hooper v. 
 Taylor, Kingsbury y. 
 Taylor, Metcalf v. 
 Taylor, Mitchell y, 
 Taylor, Smith v. 
 Tebbetts, GUUghau v. 
 Tenney, Neil v. 
 Thayer, Freeman v. 
 Thayer, Freeman y. 
 Thissell, Cram y. 
 Thissell, McKeenan y. 
 Thomas, Holbrook v. 
 Thomaston, Richmond v. 
 Thomaston Bank, Stimp- 
 
 sou y. 
 Thomaston, Warren y, 
 Thomes, Brewer y. 
 Thomson, Nickerson y. 
 Thompson, Bachelder y. 
 Thompson, Benson y. . 
 Thompson, Bucknam y. 
 Thompson, Gushing y. 
 Thompson, Macnawhoc y. 
 Thompson, McLarren v. 
 Thompson, Moore y. 
 Thompson, Moore y. 
 
 xxvm, 
 
 xliii. 
 
 xxxiv. 
 
 xxxvii. 
 
 XXXV. 
 
 xHii. 
 
 XXX. 
 XXXV. 
 
 XXXVI, 
 
 xxxix. 
 xliii. 
 xxxi. 
 
 xxxii. 
 
 xxxvi. 
 
 xxxi. 
 
 xxxix. 
 
 xliii. 
 
 xxxviii. 
 
 xl. 
 
 xxxiv. 
 
 xxxviii. 
 
 xxxix. 
 
 XXXV. 
 
 xxxviii. 
 
 XXX. 
 
 xxyiii. 
 xK. 
 
 xliii. 
 
 XXX. 
 
 xxviii, 
 
 xlii, 
 
 xxxiv, 
 
 xli, 
 
 xxxvi. 
 
 xxxii. 
 
 xxxviii. 
 
 355, Thornton, Pratt v. 
 
 226, Thornton, Randall y. , 
 
 694, Thurlo, Young y. 
 
 504, Thurlo, Small v. 
 
 392, Thurlow, "Williams y. 
 
 205, Thurstin, State v. 
 
 216, Thurston, Dookray y. 
 
 279, Tibbetts, Davis v. 
 
 188, Tibbetts, Frost y. 
 
 81, Tibbetts, State v. 
 
 553, Tibbetts, State v. 
 
 384, Tincker, Pearsons y. 
 
 237, Tiney, Huntress v. 
 
 451, Tisdale, Whitten y. 
 
 272, Titcomb, Smyth y. 
 219, Toby, Todd v. 
 450, Tobie, Rand v. 
 
 149, Todd, Ireland v. 
 
 130, Tompson, Thompson v. 
 
 28, Toothaker, Lyford v. 
 
 381, Toothaker, Springer v. 
 
 204, Topsham, Coombs y. 
 
 310, Towle, Blethen y. 
 
 405, Towle, Field v. 
 
 133, Towle, Moore y, 
 
 181, Townsend, Thornton y. 
 
 150, Trask, Linscott v. 
 188, Trask, Linscott y, 
 
 28, Trask, Patterson v. 
 
 212, Treat, Bennett y. 
 
 226, Treat, Bennett y. 
 
 198, Treat, Dane y. 
 
 163, Treat, Wadsworth y, 
 
 470, Trescott, Dennysville v. 
 
 271, Trevett, Crooker y. 
 
 192, Tribou, HaU y. 
 
 273, Trickey, BiokneU y. 
 607, Trickey, SmaU y. 
 542, True, Doyle y. 
 104, True, Elder y. 
 
 534, True, Fisher v. 
 
 438, True, Jenness y. 
 
Ixviii 
 
 TABLE OP CASES. 
 
 xxxiv. 
 
 84, 
 
 True, Kimball v. 
 
 xxxvii. 
 
 130, 
 
 xxxiii. 
 
 283, 
 
 True, Spofford v. 
 
 xxxi. 
 
 497, 
 
 xxxiii. 
 
 367, 
 
 True, Trull v. 
 
 xxviii. 
 
 326, 
 
 xxxi. 
 
 321, 
 
 Trundy, Barnes v. 
 
 xli. 
 
 349, 
 
 xxxvii. 
 
 369, 
 
 Trustees of Ministerial 
 
 xxxvii. 
 
 S9, 
 
 
 
 Fund, Baldwin v. 
 
 xxtHv- 
 
 463, 
 
 Tufts, Gurney v. 
 Tufts, Milliken v. 
 Tuttle, Keith v. 
 Tuttle, Parker v. 
 Twitchcll, Chapman T. 
 Tyler, Pitch v. 
 
 u. 
 
 xxxvii. 
 
 256, 
 
 TJnion M. Ins. Co., 
 Andrews v. 
 
 xxxix. 
 
 xliii. 
 
 343, 
 
 "tJfiion M. Ins. Co., Nash v. 
 
 xxxviii. 
 
 xli. 
 
 34, 
 
 Union Wharf, Mussey v. 
 
 xU. 
 
 220, Union School District, 
 
 Junkins v. 
 261, Upham, State v. 
 102, Usher, Shaw v. 
 
 Y. 
 
 xxxvi. 
 
 322, 
 
 Valentine, Nichols v. 
 
 xlii. 
 
 132, 
 
 xxxiv. 
 
 126, 
 
 Van Bokkelin, Hutchings v. 
 
 xlu. 
 
 132, 
 
 xxxii. 
 
 180, 
 
 Varuey, Levant v. 
 
 xxxii. 
 
 565, 
 
 XXX. 
 
 412, 
 
 Vaughan, Chase v. 
 
 XXXV. 
 
 300, 
 
 xxvii. 
 
 301, 
 
 Vaughan, Whittier v. 
 
 xxxii. 
 
 32, 
 
 xxxvi. 
 
 509, 
 
 Veazie, Dwinel v. 
 
 xxxiii. 
 
 681, 
 
 xxxi. 
 
 360, 
 
 Veazie, Moor v. 
 
 XXX. 
 
 121, 
 
 xxxii. 
 
 343, 
 
 Veazie, Moor v. 
 
 xxxiii. 
 
 148, 
 
 xxxix. 
 
 571, 
 
 Veazie, 0. & L. R. E. Co. v. 
 
 xxvii. 
 
 179, 
 
 xl. 
 
 96, 
 
 Veazie, Phillips v. 
 
 xliii. 
 
 552, 
 
 xxxii. 
 
 122, 
 
 Veazie, Soper v. 
 
 xliii. 
 
 604, 
 
 xxxix. 
 
 271, 
 
 VerriU, Hersey v. 
 
 
 
 Vickeiy, Atkins v. 
 Vickery, Stedmau v. 
 Vigereaux, Giles v. 
 Vigereaux, Giles v. 
 Viles, Clark v. 
 Vinal, Norris v. 
 Vining, Baker v. 
 Virgin, Smith v. 
 Vose, Liongley v. 
 Vose, Patterson v. 
 Vose, Waterman v. 
 
 w. 
 
 xxxii. 
 
 110, 
 
 xxxvi. 
 
 496, 
 
 xxviii. 
 
 51, 
 
 xxxi. 
 
 409, 
 
 xliii. 
 
 460, 
 
 xU. 
 
 486, 
 
 XXXV. 
 
 132, 
 
 xxxvi. 
 
 54, 
 
 xxxvii. 
 
 25, 
 
 xxxiii. 
 
 67, 
 
 xxxi. 
 
 641, 
 
 xxxii. 
 
 195, 
 
 xxxiv. 
 
 165, 
 
 xl. 
 
 574, 
 
 XXX. 
 
 252, 
 
 xliii. 
 
 397, 
 
 xxxiii. 
 
 359, 
 
 xxxii. 
 
 275, 
 
 xxxiii. 
 
 228, 
 
 xxxix. 
 
 346, 
 
 XXX. 
 
 296, 
 
 XXX. 
 
 202, 
 
 XXXVIU. 
 
 496, 
 
 xxxix. 
 
 363, 
 
 xxxvii. 
 
 563, 
 
 xxxiv. 
 
 324, 
 
 xxxiv. 
 
 89, 
 
 Wadleigh, Jewett v. 
 Wadleigh, Wilson v. 
 Waite, Blanchard v, 
 Waitt, Stone v. 
 Waldo M. Ins. C, 
 
 Decrow v. 
 Waldron, Stewart v. 
 Walker, Brighton v. 
 Walker, Gay v. 
 Walker, Green v. 
 Walker, Oatman v. 
 Walker, Shirley v. 
 Walker, State v. 
 Wall, State v. 
 Wall, White v. 
 Wallace, Rice v. 
 Walsh, Gleason v. 
 Ward, Young v. 
 Waidwell, Snow v. 
 Ware, Adams v. 
 Ware, Athens v. 
 Ware, Bryant v. 
 Ware, Coburn v. 
 Ware, Moore v. 
 Ware, Parlin v. 
 Ware, Woodward v. 
 Warren, Bangor v. 
 Warren, Coombs v. 
 
 xxxii. 
 
 94, 
 
 XXXV. 
 
 125, 
 
 xxvii. 
 
 463, 
 
 xxxiii. 
 
 30, 
 
 xxviii. 
 
 289, 
 
 xxvii. 
 
 438, 
 
 xliii. 
 
 664, 
 
 xxxiii. 
 
 684, 
 
 xxxiv. 
 
 305, 
 
 x-srxiy. 
 
 96, 
 
 cxxviii. 
 
 450, 
 
 xxxiv. 
 
 369, 
 
 xxxix. 
 
 54, 
 
 xxxix. 
 
 70, 
 
 xxxii. 
 
 666, 
 
 xxxiv. 
 
 20, 
 
 xxxii. 
 
 214, 
 
 xliii. 
 
 258, 
 
 xli. 
 
 430, 
 
 XXXV. 
 
 218, 
 
 xxxvi. 
 
 270, 
 
 xxxU. 
 
 41, 
 
 xxxvi. 
 
 504, 
 
 xl. 
 
 194, 
 
 xliii. 
 
 192, 
 
 xlii. 
 
 204, 
 
 xl. 
 
 383, 
 
 xliii. 
 
 291, 
 
 Warren, Dole v. 
 Warren, EUis v. 
 Warren, Say ward T. 
 Warren, State v. 
 Warren, Thcmastou v. 
 Warren, Wilkins v. 
 Washburn, Bearce v. 
 Washington, Viualhaven v. 
 Wasgatt, Higgins v. 
 Waterhouse, Hearn v. 
 Waters, Hardy v. 
 WaterSj'K. & P. R. R. Co. v. 
 Waters, State v. 
 Waters, State v. 
 Waterville, Plummer v. 
 Watson, Hobson v. 
 Watson, Little v. 
 Weatherby, State v. 
 Weaver, Vinton v. 
 Webb, Norton v. 
 Webb, Norton v. 
 Webb, Ware v. 
 Webber, Craig v. 
 Webber, Hanson v. 
 Webster, Cummings v. 
 Webster, Emery v. 
 Weed, Freedom v. 
 Weeks, Brackett v. 
 
TABLE OF CASES. 
 
 Ixix 
 
 XXX. 182, 
 
 xxxvii. 106, 
 
 xxxTiii. 313, 
 
 xxxii, 416, 
 
 xxxvi. 339, 
 
 xxxyii. 165, 
 
 XXXV. 393, 
 
 xliii. 446, 
 
 xxxiu. 
 xxix. 
 
 XXXIX. 
 
 xxxvi. 
 
 256, 
 
 140, 
 
 285, 
 
 492, 
 
 414, 
 
 439, 
 
 xxxviii. 372, 
 
 xxxiii. 366, 
 
 xxis. 108, 
 
 xxxii. 230, 
 
 xxxiv. 592, 
 
 xliii. 458, 
 
 xxxii. 388, 
 
 xli. 228, 
 
 xli. 537, 
 
 XXX. 291, 
 
 xli. 612, 
 
 XXXTUl. 
 
 xlii. 
 
 XXXV. 
 
 xli. 
 
 63, 
 209, 
 233, 
 414, 
 123, 
 
 xliii. 
 
 448, 
 
 242, 
 
 165, 
 
 xxxiv. 563, 
 
 xxxviii. 174, 
 
 341, 
 
 188, 
 
 480, 
 
 21, 
 
 117, 
 
 630, 
 
 548, 
 
 203, 
 
 521, 
 
 677, 
 
 376, 
 
 326, 
 
 170, 
 
 xxix. 169, 
 
 xxxiv. 566, 
 
 xxxvi. 266, 
 
 xxxiv. 196, 
 
 xxvii. 345, 
 
 xxix. 
 
 xxvii. 
 xxxii. 
 
 xxxi. 
 xxxix, 
 xxxvii. 
 xxxii, 
 xxxiii. 
 xxxvi. 
 
 xliii. 
 xxxvi. 
 
 XXX. 
 
 "Weeks, State v. 
 "Welch, Chesley v. 
 "Weld, Freeman v. 
 "Wells, Townsend v. 
 "Wentworth, Nairaguagus 
 
 Land iPro. v. 
 "Wentworth, Saoo v. 
 "Wentworth, Tucker v. 
 "Wescott, Holt V. 
 "Weston, Dinsmore v. 
 "Weston, Spofford v. 
 'Weston,."Whitman v. 
 Weston, Young v. 
 Weymouth, Brown v. 
 Wheeler, Cowan v. 
 "WTieeler, Staples v. 
 "Wheelook, Cony v. 
 Whidden, Heath v. 
 Whidden, .Tohnson v. 
 "Whipple, Anderson v. 
 Whitcomb, Whitmore v. 
 "White, Andrews y. 
 "White, Chase v. 
 White, Frankfort T. 
 White, Lincoln v. 
 White, Penobscot E. K. 
 
 Co. V. 
 White, P. & K. E. R. Co. v- 
 "White, Eobinson v. 
 White, Sheldon v. 
 "Whitefield, Merrill v. 
 "Whiting, Bangor Boom 
 
 Corp. V. 
 Whitmore, McKown V. 
 
 "Whitney, Jewett v. 
 
 Whitney, Lang v. 
 
 Whitney, Moody v. 
 
 Whitney, Moody v. 
 
 Whitney, Nash v. 
 
 Whitney, Pierce y. 
 
 Whitney, Todd v. 
 
 "Whitten, McLaughlin v. 
 
 Whitten, Pease v, 
 
 "Whittier, Crowell v. 
 
 Whittier, Ellis v. 
 
 "Whittier, Miller v. 
 
 Whittier, Miller v. 
 
 "Whittier, Miller v. 
 
 "Whittier, Stevens v. 
 
 Wight, Hodgdon v. 
 
 Wilcox, Hillman v. 
 
 Wilder, Lincoln v. 
 
 Wildes, Howe v. 
 
 Wildes, Leonard v. 
 
 Wiley, Thompson t. 
 
 WilMns, Penobscot Boom 
 Corp. V. 
 
 xl. 409, 
 
 Williams, Atwood v. 
 
 xxviii. 262, 
 
 Williams, Brown v. 
 
 xxxi. 403, 
 
 Williams, Brown v. 
 
 XXX. 484, 
 
 Williams, State v. 
 
 xxxvi. 512, 
 
 "Williams, Webber v. 
 
 xxxii. 559, 
 
 "Williamson, Bow v. 
 
 xxvii. 149, 
 
 Williamson, Lyon v. 
 
 xxxvii. 566, 
 
 Williamson, Means v. 
 
 xxxiv. 286, 
 
 Wilson, McCriUis v. 
 
 xxix. 58, 
 
 Wilson, Merrill v. 
 
 xxxiv. 693, 
 
 Wilson, Carnick v. 
 
 xxxix. 586, 
 
 Wilson, Eeed v. 
 
 xxix. 56, 
 
 Wilson, Souther v. 
 
 xlii. 9, 
 
 Wilson, State v. 
 
 xliii. 186, 
 
 Wilson, TUexan v. 
 
 xxxii. 581, 
 
 Wing, State v. 
 
 xxxix. 424, 
 
 Wing, Whipple v. 
 
 xxix. 404, 
 
 Wingate, Johnson v. 
 
 xl. 60, 
 
 "Winn, Veazie Bank t. 
 
 xl. 62, 
 
 "Winn, Veazie Bank v. 
 
 xxxviii. 208, 
 
 "Winslow, Drummond v. 
 
 xxxiii. 356, 
 
 WisweU, Doak y. 
 
 xxxviii. 569, 
 
 Wiswell, Doak y. 
 
 XXX. 166, 
 
 Wood, Bard y. 
 
 xxxii. 466, 
 
 Wood, Cobb V. 
 
 xxviii. 69, 
 
 "Wood, Francis y. 
 
 xxix. 217, 
 
 Wood, McMiUan v. 
 
 xlii. 282, 
 
 Wood, Thornton y. 
 
 xxxviii. 661, 
 
 Wood,Titcomb y. 
 
 xxxiv. 123, 
 
 Wood, Wilson v. 
 
 xliii. 206, 
 
 Woodbury, Richardson y. 
 
 xxxi. 580, 
 
 Woodman, Ammidown y. 
 
 xU. 177, 
 
 Woodman, Hammond v. 
 
 xxix. 266, 
 
 "Woodman, Jackson y. 
 
 xxxi. 573, 
 
 "Woodman, Jay Bridge 
 
 
 Corp. V. 
 
 xl. 120, 
 
 Woodman, Larrabee v. 
 
 xxxii. 186, 
 
 Woodman, Wilton Manuf'g 
 
 
 Co. V. 
 
 xxxix. 268, 
 
 Woodsum, Saco v. 
 
 xxxiii. 470, 
 
 Woodward, Hovey y. 
 
 xxxviii. 423, 
 
 Woodward, Jordan v. 
 
 xl. 317, 
 
 Woodward, Jordan y. 
 
 xlii. 497, 
 
 Woodward, Lord y. 
 
 xxxviii. 426, 
 
 Woodward, Mace y. 
 
 xxxiv. 293, 
 
 Woodward, State v. 
 
 xxviii. 392, 
 
 Woodward, Whitmore v. 
 
 xxxiii. 200 
 
 Wormell, State v. 
 
 xxix. 282, 
 
 Wormwood, Lord y. 
 
 . xxxi. 62, 
 
 Worthing, State y. 
 
 xxxiv. 187, 
 
 Wren, Clay y. 
 
 xxxiv. 351, 
 
 Wright, Kennedy v. 
 
 XXXV. 156, 
 
 • Wright, Macomber y. 
 
 xliii. 387, 
 
 Wylie, First Parish in 
 
 
 Boothbay v. 
 
 xxxi. 60 
 
 Wyman, Clement y. 
 
 xxxviii. 689 
 
 Wyman, Gushing y. 
 
Ixs. 
 
 TABLE OP CASES. 
 
 Y. 
 
 xH. 208, 
 
 York Co. M. F. Ins. Co., 
 
 xxxvii. 
 
 320, 
 
 
 Battles V. 
 
 Trliii. 
 
 232, 
 
 xxvii. 320, 
 
 T. & C. E. E. Co., Bige- 
 
 
 88, 
 
 
 low V. 
 
 xxx-ri. 
 
 557, 
 
 xxxi. 172, 
 
 Y. & C. R. R. Co., Deer- 
 
 xzxiii. 
 
 85, 
 
 
 ing V. 
 
 xxxyii. 
 
 276, 
 
 Y. & C. E. R. Co., Jones v. 
 Y. & C. R. R. Co., Myers v. 
 Young, Harlo-w v. 
 Young, Haynes v. 
 Young, Huston v. 
 Young, Jordan t. 
 
TABLE OF CONTENTS. 
 
 ABANDONMENT, 1 
 
 ABATEMENT, 1 
 
 I. What will abate a ■writ, or other 
 
 process, 
 
 1 
 
 (a) Want of jurisdiction, or de- 
 
 fects in the writ or service, 1 
 
 (b) Decdh or disability of parties, 2 
 
 (c) Misnomer or non-joinder, 2 
 
 (d) Pendency of another action, 2 
 n. How to take advantage of mat- 
 ters in abatement, 2 
 
 ni. When, and by whom, the ob- 
 jection must be made, 3 
 
 (a) At what time, pleas or mo- 
 
 tions in abatement must be 
 
 fUed or made, 3 
 
 (b) What will be a waiver of 
 
 matters in abatement, 3 
 
 IV. Form of plea, 4 
 
 ABORTION, 4 
 
 ACCESSION, 4 
 
 ACCESSORY, 5 
 
 ACCOUNT, 5 
 
 ACKNOWLEDGMENT OP DEEDS, 6 
 ACTIONS AND REMEDIES IN 
 
 GENERAL, 6 
 I. By and against whom, and for 
 
 what an action will lie, 6 
 
 II. Commencement of actions, 14 
 
 III. Whether local or transitory, 14 
 
 IV. Multiplicity of actions, 14 
 ADULTERY, 15 
 AGENCY, 15 
 
 I. Appointment and revocation, 
 
 and how proved, 15 
 n. Extent of authority, and dele- 
 gation of powers, 16 
 
 III. Ratification and adoption, 16 
 
 IV. Time and manner of executing 
 
 agencies, 17 
 V. Liability of principal for acts of 
 
 agents, 17 
 
 VT. Liabilities of agents, 18 
 
 (a) To their principals, 18 
 
 (b) To third persons, 18 
 
 VU. Rights and remedies of princi- 
 pals and agents, 18 
 Vm. Factors, 18 
 IX. Pleadings and evidence, 18 
 AGENT FOR SELLING LIQUORS, 19 
 AGREEMENT IN RESTRAINT OF 
 
 TRADE, 19 
 
 AID TO AN OFFICER, 19 
 
 ALIENATION, 19 
 
 AMENDMENT, 19 
 
 I, General principles, 19 
 H. Of writs and declarations, 20 
 
 IIL Of pleadings, 21 
 IV. Of records, judgments and ex- 
 ecutions, 21 
 V. Of officers' returns, 21 
 VI. In other cases, 22 
 VII. Effect of amendments, 22 
 APPEAL, _ 22 
 I. In what cases an appeal lies, 22 
 II. Security to prosecute an ap- 
 peal, 23 
 m. Effect of an appeal, and pro- 
 ceedings in the court above, 23 
 APPROPRIATION OF PAYMENTS, 24 
 AQUATIC RIGHTS, 24 
 ARBITRATION, 25 
 I. Submission, 25 
 II. Authority and duty of the ar- 
 bitrators, 26 
 HE. Of the award, 28 
 
 (a) Validity, 28 
 
 (b) Award respecting costs, 29 
 
 (c) Construction, 29 
 
 (d) Returning to court, and ac- 
 
 tion thereon, 30 
 IV. Effect of an award, and how 
 
 enforced or avoided, 31 
 
 ARREST, 32 
 
 ARREST OF JUDGMENX 33 
 
 ASSAULT AND BATTERY, 33 
 
 ASSESSORS, 33 
 
 ASSIGNMENT, 34 
 I. Of choses in action, and other 
 
 rights, 34 
 H. Effect of an assignment of a 
 
 chose in action, 35 
 
 (a) Rights of the assignee, 35 
 
 (b) Payments to, or a release 
 
 from,, the assiffTwr, 36 
 
 (c) Set-off and other matters, 36 
 
 (d) Pleadings and evidence, 36 
 III. Assignment for the benefit of 
 
 creditors, 37 
 
 (a) Under statute, 37 
 
 (b) Generally, 38 
 ASSUMPSIT, 38 
 AT. & ST. LAWRENCE R. R. CO., 41 
 ATTACHMENT, 41 
 
 I. What property is attachable, 
 
 and when, 41 
 
 II. Validity of an attachment, 43 
 
 (a) General principles, 43 
 
 (b) Personal estate, 43 
 
 (c) Real estate, 43 
 
Ixxii 
 
 TABLE OP CONTENTS. 
 
 in. How defeated or dissolved, 44 
 
 (a) Negligence or misdoings of 
 
 the officer, 44 
 
 (b) Amendments, 44 
 (o) Otherwise, 44 
 (d) Lapse of tim^, 46 
 
 IV. Priority of attachment, 45 
 
 V. Eifect, rights and liabilities, re- 
 
 sulting from an attachment, 45 
 
 (a) Interest of the debtor, 45 
 
 (b) Rights and duties of tTie of- 
 
 jlcer, 46 
 
 (c) Towers and liabilities of a 
 
 bailee or receiptor, 47 
 
 (d) In general, 49 
 ATTORNEY, 49 
 ATTORNEYS AND COUNSELORS, 50 
 
 ' I. Authority of an attorney, 60 
 
 II. Duty and liability of an attorney, 5 1 
 
 m. Lien of an attorney, 52 
 
 AUCTION AND AUCTIONEER, 62 
 
 AUDITORS, 53 
 
 AWARD, 53 
 
 BAIL, 63 
 
 BAILMENT, 63 
 
 BANK, 55 
 
 BANKRUPTCY, 68 
 
 BARGAIN AND SALE, 62 
 
 BASTARDY, 62 
 
 BETTERMENTS, 63 
 BILLS OF EXCHANGE AND 
 
 PROMISSORY NOTES, 64 
 I. Form, construction, and validity, 64 
 
 (a) General requisites, 64 
 
 (b) Construction, 64 
 
 (c) Consideration, 66 
 
 (d) Wlien a discha/rge of the 
 
 original cause of action, 66 
 
 (e) When not valid, 67 
 (f ) Notes payable in specific ar- 
 ticles, 68 
 
 II. Negotiability and transfer, 68 
 
 III. Acceptance, 69 
 
 IV. Presentment, demand and no- 
 
 tice, 70 
 
 (a) When necessary, 70 
 
 (b) By whom and when to be 
 
 made, 70 
 
 (c) At what time and place, 70 
 (d.) Waiver or modification of, 
 
 by agreement or usage, 70 
 
 (e) Protest, 71 
 V. Liabilities and remedies of the 
 
 different parties, 71 
 
 VI. Actions on bills and notes, 74 
 
 (a) When, and by whom, an ac- 
 
 tion is maintainable, 74 
 
 (b) When subject to equities be- 
 
 tween other parties, 76 
 
 (c) Defences, 77 
 VII. Pleadings and evidence, 78 
 
 BILL OF SALE, 80 
 
 BOND, 81 
 
 I. In general, 81 
 
 n. Construction and breach, 83 
 
 HI. Pleadings and evidence, 84 
 
 BOOK ACCOUNT, 85 
 
 BOOM, 85 
 
 BOUJSTD ARIES OF LAND, 85 
 
 BOWLING ALLEY, 85 
 
 BRIDGES, 86 
 
 BI^IEF STATEMENT, 86 
 
 BUCKFIELD B. RAILROAD, 86 
 
 BURGLARY, 87 
 
 BURTHEN OF PROOF, 87 
 
 BY-LAWS, 87 
 
 CARRIER, 87 
 CASE, 87 
 CERTIFICATE, 87 
 CERTIORARI, 88 
 CHALLENGE, 90 
 CHANCERY RULES, 90 
 CHARGE ON REAL ESTATE, 90 
 CHEATING BY FALSE PRETEN- 
 CES, 90 
 CHECKS, 91 
 CITY OF PORTLAND, 91 
 CITIZENSHIP, 92 
 CLAMS, 92 
 CLERICAL ERRORS, 92 
 COLLECTOR, 93 
 COLONIAL ORDINANCE, 93 
 COMMERCE, 94 
 COMMISSIONERS, 94 
 COMMITTEE, 94 
 COMMON SELLER, 94 
 COMMON VICTUALER, 94 
 COMPLAINT, 95 
 COMPOSITION OF CLAIMS, 96 
 CONDITION, 97 
 
 I. When precedent, or subsequent, 97 
 II. Generally, 97 
 
 CONFUSION OF GOODS, 98 
 CONSIDERATION, 98 
 CONSIGNMENT, 98 
 CONSPIRACY, 98 
 CONSTABLE, 99 
 CONSTITUTIONAL LAW, 100 
 I. Organization of the depart- 
 ments of government, 100 
 n. Laws affecting contracts or 
 
 vested rights, 101 
 in. Ex post facto, and retrospec- 
 tive laws, 101 
 IV. Laws to take private property 
 
 for public uses, 102 
 V. Laws affected by the declaration 
 
 of rights, 102 
 VI. Other laws and general prin- 
 ciples, . 103 
 CONTAGIOUS SICKNESS, 105 
 CONTEMPT OF COURT, 105 
 CONTINGENT REMAINDER, 105 
 CONTRACT, 106 
 I. What will constitute or prove 
 
 a contract, 106 
 
 II. Validity of a contract, 107 
 in. Consideration, 108 
 
TABLE OP CONTENTS. 
 
 Ixxiii 
 
 (a) In general, 108 
 
 (b) Want or failwe of consid- 
 
 eration, 109 
 
 IV. Rescission, 109 
 
 V. Waiver, merger or discharge, 110 
 VI. Performance and breach. 111 
 
 (a) What mil excwe perform- 
 
 ance, 111 
 
 (b) What will constitute per- 
 
 formance or breach, 111 
 
 Vn. Construction, 112 
 
 (a) Dependent and independ- 
 
 ent stipulations, 112 
 
 (b) Particular agreements, 114 
 
 (c) In general, 1 19 
 CONTRIBUTION, 120 
 CONVERSION, 120 
 CONVEYANCE, 121 
 CO-PARTNERSHIP, 121 
 CORPORATION, 121 
 
 I. How created, organized and 
 
 dissolved, 121 
 
 II. Transfer of shares, 122 
 
 III. Corporate powers, rights and 
 
 liabilities, 122 
 
 IV. Rights and liabilities of officers 
 
 and members, 126 
 
 V. Pleadings and evidence, 129 
 
 COSTS, 132 
 
 I. Recovery of costs, 132 
 
 (a) In what cases a party will or 
 
 wiU not recover costs, 132 
 
 (b) Who is liable for costs as a 
 
 pairty to the s%it, 13i 
 
 II. Costs in particular cases, 134 
 
 in. When affected by the amount 
 
 of damages, 136 
 
 rV. Taxation of costs, 136 
 
 COUNTERFEITING, 136 
 
 COUPONS, 137 
 
 CO-TENANTS, 137 
 
 COUNTY, 137 
 
 COUNTY COMMISSIONERS, 137 
 
 COURT AND JURY, 143 
 
 COURT MARTIAL, 143 
 
 COURTS IN GENERAL, 143 
 
 COURT or RECORD, 144 
 
 COVENANT, 144 
 
 I. Covenant real, 144 
 
 II. Construction, performance and 
 
 breach, 148 
 
 III. Generally, 148 
 
 COVERTURE, 149 
 
 CREDITOR AND DEBTOR, 149 
 
 CRIMINAL LAW, 149 
 
 CURTILAGE, 149 
 
 CUSTOM, 150 
 
 DAMAGES, 
 
 150 
 
 I. In actions on torts, 
 
 150 
 
 (a) Against officers. 
 
 150 
 
 (b) Beplevin, 
 
 151 
 
 (c) Libel and slander. 
 
 162 
 
 (d) Trespass, 
 
 152 
 
 (e) Trover, 
 
 153 
 
 (f ) other injuries, 153 
 
 II. In actions on contracts, 164 
 
 (a) On simple contracts, 164 
 
 (b) On covenants real, 156 
 
 (c) On other covettanis and 
 
 bonds, 157 
 
 III. Under statutes, 159 
 
 DEBT, 169 
 
 DEBTOR AND CREDITOR, 169 
 
 DECLARATION, 160 
 
 DECLARATIONS, 160 
 
 DEDICATION, 160 
 
 DEED, ■ 160 
 
 I. Parties, 160 
 
 (a) Deeds made by agents, or 
 
 under authority of law, 160 
 
 (b) Parties generally, and their 
 
 duties, 161 
 
 n. Execution, delivery and accept- 
 ance, 161 
 
 III. Acknowledgement and regis- 
 
 tration, 162 
 
 IV. Want of title, and errors in 
 
 deeds, 164 
 
 V. Validity and efficacy, 164 
 
 VI. Construction, 166 
 
 (a) Conditions, reservations and 
 
 exceptions, 166 
 
 (b) Boundaries, 169 
 (o) Generally, 174 
 
 DEFAULT, 178 
 
 DELIVERY, 178 
 
 DEMURRER, 178 
 
 DEPOSITARY, 178 
 
 DEPOSITION, 179 
 
 I. When admissible in evidence, 179 
 II. Caption, notice, taking, return- 
 ing, and filing depositions, 180 
 DESERTER, 182 
 
 DEVISE AND LEGACY, 182 
 
 I. Of legatees and devisees, and 
 
 their seizin, 182 
 
 II. When a devise is in fee, for life, 
 
 in tail, or otherwise, 183 
 
 HI. Whether a devise or legacy is 
 specific, absolute, conditional, 
 contingent, or executory, 184 
 
 IV. Remedies, for and against, 184 
 
 DISCLAIMER, 185 
 
 DISSEIZIN, 185 
 
 DISTRIBUTION OF ESTATES, 185 
 DISTRICT COURT, 185 
 
 DIVORCE, 186 
 
 DONATIO CAUSA MORTIS, ET 
 
 INTER VIVOS, 187 
 
 DOWER, 188 
 
 I. Who is entitled to dower, and 
 
 nature of the right, 188 
 
 II. Of what a widow is dowable, 188 
 
 (a) What aeifin of the husband 
 
 is necessary, 188 
 
 (b) Of what lands, and of what 
 
 portion thereof, a widow is 
 dowable, 189 
 
 III. Bar of dower, 191 
 
Ixxiv 
 
 TABLE OP CONTENTS. 
 
 VI. How dower is recoverable, 192 
 
 (a) Demand and assignment, 192 
 
 (b) Action of dower, pleadings, 
 
 evidence and damages, 192 
 DURESS, 194 
 
 DWELLINGHOTJSE, 194 
 
 EASEMENT, 
 
 194 
 
 EMANCIPATION, 
 
 193 
 
 EMBEZZLEMENT, 
 
 196 
 
 ENTAILED ESTATES, 
 
 196 
 
 EQUITY, 
 
 196 
 
 I. Jurisdiction, 
 
 196 
 
 II. Practice, 
 
 200 
 
 III. Pleadings, 
 
 202 
 
 IV. Evidence, 
 
 204 
 
 V. General principles, 
 
 205 
 
 (a) Trust, 
 
 205 
 
 (b) Fraud, 
 
 206 
 
 (c) Bills for specific perform- 
 
 ance, 207 
 
 (d) Bills to redeem, 208 
 
 (e) Other cases, 208 
 ERROR, 210 
 
 I. In what cases it will lie, 210 
 
 II. Proceedings, 211 
 
 ESTATES ON CONDITION, 212 
 
 ESTATES TAIL, 212 
 
 ESTOPPEL, 212 
 
 I. By deed or other specialty, 212 
 II. By parol, or in pais, 215 
 
 EVIDENCE, 216 
 
 I. Production of the best evi- 
 dence, 217 
 
 (a) In case of instruments or 
 
 records hst, or not produced, 217 
 
 (b) Attesting witmesses, 218 
 
 (c) Copies, 218 
 
 (d) Generally, 220 
 II. Admissibility of evidence, as 
 
 respects its quality, 220 
 
 (a) Certainty, 220 
 
 (b) Belevancy, and herein of 
 
 usage, 221 
 
 (c) Materiality, 223 
 
 (d) Searswg, and res inter alios, 225 
 
 (e) Entries, 225 
 
 (f ) Opinion and reputation, 226 
 m. Admissibility of parol evidence 
 
 to affect the construction of 
 writings, 226 
 
 (a) Generally, 227 
 
 (b) Evidence of the situation or 
 
 acts of the parties, 229 
 
 (c) In case of receipts, 229 
 
 (d) , To control or explain records 
 
 and Judgments, 229 
 
 rV. Presumptive evidence, 230 
 
 V. Burthen of pioot, 233 
 
 VI. Evidence as applicable to par- 
 ticular subjects and issues, 235 
 
 (a) Insanity, 235 
 
 (b) Usage, 235 
 
 (c) Fraud, 236 
 
 (d) Handioriting, 236 
 
 (e) Judgments and records, 237 
 
 (f ) Officers' returns, 238 
 
 (g) Records of corporations, 239 
 (h). Puhlic records, documents, 
 
 official acts, and certificates, 240 
 (i) Ancient dates and coeval 
 
 facts, 241 
 
 (j) Book accounts, 241 
 
 VII' Admissions, declarations and 
 
 confessions, 242 
 
 (a) Res gestae, 242 
 
 (b) Admissions and declarations 
 
 of parties, 243 
 
 (c) Declarations of privies and 
 
 agents, 245 
 
 (d) Declarations of third per- 
 
 sons, ' 247 
 
 VIII. Other principles, 248 
 
 EXCEPTIONS, 262 
 
 I. In what cases exceptions lie, 
 and what are grounds of ex- 
 ceptions, 252 
 II. In other respects, 256 
 EXECUTIONS, 258 
 I. Of issuing executions, and their 
 
 validity, 258 
 
 II. Levies upon real estate, 259 
 
 (a) Generally, 259 
 
 (b) Appraisers, and the apprais- 
 
 ment, 263 
 
 (c) Return of the officer, 263 
 
 (d) Returning and recording the 
 
 execution, 265 
 
 (e) Delivery of seizin, 265 
 
 (f) Levies on equities of redemp- 
 
 tion, life estates, and inter- 
 ests in virtue of bonds, 266 
 
 (g) Redemption, after an extent 
 
 or sale on execution, 266 
 
 III. Levies on personal property, 267 
 
 IV. How, and by whom discharged, 267 
 EXECUTORS AND ADMINISTRA- 
 TORS, 267 
 
 I. Appointment, powers, duties 
 
 and liabilities, 267 
 
 (a) • Interest in, and authority 
 
 over, the estate, and sales 
 thereof, 267 
 
 (b) Representation of insolvency 
 
 and proceedings, 269 
 
 (c) Generally, 269 
 ll. Suits by and against, 271 
 
 (a) When maintainable, 271 
 
 (b) Pleadings, practice, evidence 
 
 and costs, 273 
 
 m. Executors de son tort, and 
 foreign executors and admiu- 
 
 EXEMPTION OF PROPERTY, 275 
 
 EXPERTS, 275 
 
 EX POST FACTO LAWS, 275 
 
 EXTENT, 275 
 
 FALSE PRETENCES, 
 FEES, 
 
 275 
 275 
 
TABLE OP CONTENTS. 
 
 Ixxv 
 
 PELONY, 
 
 FEME COVERT, 
 
 FENCE, 
 
 FENCE VIEWERS, 
 
 FERRY, 
 
 FINES, 
 
 FIREWARDS, 
 
 FIREWOOD, 
 
 FISHERIES, 
 
 FIXTURES, 
 
 FLATS,' 
 
 FLOWAGE, 
 
 276 
 276 
 276 
 278 
 278 
 279 
 279 
 279 
 279 
 280 
 281 
 282 
 
 FORCIBLE ENTRY AND DETAIN- 
 ER, 282 
 FORECLOSURE, 283 
 FOREIGN ATTACHMENT, 283 
 FOREIGN LAWS, 283 
 FORFEITURE, 284 
 FORGERY, 284 
 FRAUD AND FRAUDULENT CON- 
 VEYANCES, 284 
 I. Fraud in general and actions 
 
 therefor, 284 
 
 n. Fraudulent contracts, 285 
 
 in. Fraudulent conveyances, 286 
 
 IV. Fraudulent sales of personal 
 
 property, 287 
 
 FRAUDS, STATUTE OF, 288 
 
 I. To answer for the debt, &c., of 
 
 another, 288 
 
 n. For the sale of lands, &c. 289 
 
 III. For the sale of goods, &c. 289 
 
 rv. Upon an agreement, not to he 
 
 performed within a year, 290 
 
 FUNDS FOR PIOUS AND CHAR- 
 ITABLE PURPOSES, 290 
 
 GEORGES' CANAL COMPANY, 290 
 
 GIFT, ' 290 
 
 GOVERNOR AND COUNCIL, 290 
 
 GRAND JURY, 291 
 
 GRANTS, 291 
 GRANTS BY THE SOVEREIGN 
 
 POWER, 292 
 
 GUARANTY, 292 
 
 GUARDIAN AND WARD, 293 
 
 IMPOUNDING, 
 
 301 
 
 INDIANS, 
 
 302 
 
 INDICTMENT, 
 
 302 
 
 I. What is indictable, 
 
 302 
 
 II. Pleading, 
 
 803 
 
 HABEAS CORPUS, 
 
 295 
 
 HANDWRITING, 
 
 295 
 
 HAY, 
 
 295 
 
 HEALTH OFFICERS, 
 
 296 
 
 HEIRS, 
 
 296 
 
 HUSBAND AND WIFE, 298 
 
 I. Rights and liabilities of the 
 
 husband, 298 
 
 n. Rights and liabilities of the 
 
 ■wife, 299 
 
 m. Their respeotiTC rights in her 
 
 property, 299 
 
 IV. Actions by, and against, hus- 
 band and wife, 300 
 
 IDENTITY, 301 
 
 ILLEGITIMATE CHILDREN, 301 
 
 IMPEACHMENT, 301 
 
 (a) Finding of the indictment, 303 
 
 (b) Caption, 303 
 
 (c) Conclusion, 303 
 
 (d) Parties, 304 
 ?e) Averring a negative, 304 
 
 (f ) Time and place, 304 
 
 (g) Surplusage and certainty, 305 
 (h) Duplicity and repugnancy, 306 
 (i) Other points, 307 
 (j) Under statutes, 308 
 
 m. Practice and evidence, 308 
 ESTDORSER, 311 
 INFANT, 311 
 INJUNCTION, 312 
 INJURY TO ANOTHER'S PRO- 
 PERTY, 312 
 INNKEEPER, 313 
 INNHOLDERS, &c., 313 
 INSANE PERSONS, 313 
 INSANE HOSPITAL, 314 
 INSANITY, 314 
 INSOLVENT ESTATES, 314 
 INSPECTORS, 315 
 INSTRUCTIONS TO THE JURY, 316 
 INSURANCE, 316 
 L PoUcy, 316 
 
 (a) Insurable interest, 316 
 
 (b) Validity, 317 
 
 (c) What will defeat, 318 
 
 (d) Generally, 319 
 
 II. Losses, 321 
 III. Pleadings and evidence, 322 
 
 INTEREST, 324 
 
 INTOXICATING LIQUORS, 325 
 
 JOINT STOCK ASSOCIATIONS, 325 
 JOINT TENANTS AND TENANTS 
 
 IN COMMON, 326 
 I. Creation and severance of such 
 
 estates, 326 
 H. Rights and liabilities, 327 
 HI. Remedies, 328 
 JUDGMENT, 329 
 I. Rendition and entering of Judg- 
 ment, 330 
 II. Arrest of judgment, 330 
 
 III. Effect of a judgment, 330 
 
 (a) As to pcwrties, 330 
 
 (b) Generally, 331 
 rv. Actions ou, and satisfaction of, 
 
 judgments, 332 
 V. Judgments of courts of other 
 
 States, 333 
 
 JURISDICTION, 334 
 
 JURY, 335 
 
 lUSTIGE OF THE PEACE, 335 
 
 I. Jurisdiction, 336 
 
 (a) In personal matters, 336 
 
 (b) Where title to real estate is 
 
 in question, 336 
 
Ixxvi 
 
 TABLE OP CONTENTS, 
 
 (c) In criminal matters, 
 n. MiniBterial acts, 
 III. In general, 
 JUSTICE OF THE PEACE DE 
 FACTO, 
 
 337 
 337 
 
 LACHES, 338 
 
 LANDING, 338 
 
 LANDLORD AND TENANT, 339 
 
 I. What constitutes the relation, 339 
 
 II. Tenancies at sufferance, at will, 
 
 and by curtesy, 339 
 
 III. Rights and remedies, 340 
 
 (a) Against each other, 340 
 
 (b) Emblements, 340 
 
 (c) Notice to quit, and determin- 
 
 ation of tenancies, 341 
 
 (d) Action for use and occupa- 
 
 tion, 341 
 
 LANDS RESERVED FOR PUBLIC 
 
 USES, 342 
 
 LARCENY, 342 
 
 LAW AND FACT, 342 
 
 I. What are questions of law, 342 
 
 II. What are questions of fact, 343 
 
 LEASE, 345 
 
 LEGACY, 346 
 
 LEVY ON REAL ESTATE, 346 
 
 LIBEL FOR FORFEITURE, 346 
 
 LIBEL AND SLANDER, 347 
 
 I. The criminal offence, 347 
 
 II. The civil action, 347 
 
 (a) What is libellotts, or action- 
 
 able, 347 
 
 (b) Whjit may be shoren in jus- 
 
 tification, or defence, 348 
 
 (c) Pleadings, 348 
 
 (d) GeneraUy, 349 
 LICENSE, 350 
 LIENS, 350 
 
 I. Liens generally, and the mode 
 
 of securing them, 350 
 
 II. Waiver or extinguishment of 
 
 liens, 356 
 
 LIFE, 357 
 
 LIMITATIONS, STATUTE OF, 357 
 
 I. In general, 357 
 
 (a) Personal actions, 357 
 
 (b) Actions against executors, 
 
 and administrators, 358 
 
 (c) Actions against sheriffs, 359 
 
 (d) Perud actions, 359 
 
 (e) Computation of time, 359 
 
 (f) Mortgages, 360 
 n. Exceptions and avoidance, 360 
 
 (a) Parties abroad, 360 
 
 (b) Attested note, 360 
 
 (c) Accounts, 361 
 
 (d) Concealment of cause of ac- 
 
 tion, 361 
 
 (e) Commencement of action, 362 
 (■f) Acknowledgment, waiver, 
 
 or promise, 362 
 
 (g) Payments, 363 
 (h) Otlter things, 363 
 
 LIQUOR, SPIRITUOUS AND IN- 
 TOXICATING, 364 
 I. Contracts in regard to, and civil 
 
 actions, 364 
 
 II. Criminal processes, 366 
 
 (a) Acts of 1846 & 1848, 366 
 
 (b) Act of 1851, 368 
 
 (c) Act of 1853, 370 
 
 (d) Act of 1855, 372 
 
 (e) Act of 1856, 372 
 m. Agents and agencies to sell, 372 
 
 LIVERY STABLE KEEPER, 373 
 
 LOGS AND LUMBER, 373 
 
 LORD'S DAY, 375 
 
 LOTTERY LANDS, 375 
 
 LUNATIC, 376 
 
 MAGISTRATE, 376 
 MAINTENANCE, 376 
 MALICIOUS MISCHIEF, ~ 376 
 MALICIOUS PROSECUTION, 377 
 MANDAMUS, 379 
 MANSLAUGHTER, 380 
 MANURE, 380 
 MARRIAGE, 380 
 MARRIED WOMAN, 381 
 MASTER IN CHANCERY, 383 
 MECHANICS' LIEN, 383 
 MERGER, 383 
 MESNE PROFITS, 383 
 MILITIA, • 384 
 MILLS, 384 
 I. Rights and liabilities of the dif- 
 ferent parties, 384 
 II. Flo wage, and complaints there- 
 for, 387 
 m. Damages, 390 
 MINISTERIAL FUND, 390 
 MINOR, ■ 391 
 MISDEMEANOR, 391 
 MISNOMER, 391 
 MITTIMUS, 391 
 MORTGAGE, . 391 
 I. What constitutes a mortgage, 392 
 II. Rights and interests of the par- 
 ties, 392 
 m. Transfer of rights in mortgaged 
 
 estates, 396 
 
 (a) By contract, 396 
 
 (b) Under legal process, 397 
 
 (c) Generally, 397 
 rV. Discharge and extinguishment 
 
 of a mortgage, 397 
 
 V. Redemption, 398 
 
 (a) Who may redeem, when, 
 
 from whom, amd how, 398 
 
 (b) Adjustment of accounts, 399 
 
 (c) Bills in equity to redeem, 400 
 VI. Foreclosure, 401 
 
 Vn. Actions at law and judgments 
 
 thereon, 403 
 
 Vin. Mortgage of chattels, 405 
 
 MUNICIPAL COURT, 408 
 
 MURDER, 408 
 
TABLE OP CONTENTS. 
 
 Ixxvii 
 
 NEW TRIAL, 410 
 
 I. Generally, 410 
 
 II. Newly discovered evidence, 410 
 
 III. Mistake or fault of jurors, 411 
 
 (a) Misbehmior or mistahe of 
 
 jurors, 411 
 
 (b) Verdict against law or ev- 
 
 idence, 411 
 
 (c) Excessive or inadequate dam- 
 
 ages, 412 
 
 rV. Errors of the court, 413 
 
 (a) Misstatement of the law, 413 
 
 (b) Admission of improper tes- 
 
 timony, 413 
 
 NONSUIT, 414 
 
 NOTICE AND NOTIFICATIONS, 414 
 NUISANCE, ^ 415 
 
 OATH, 416 
 
 OFFER TO BE DEFAULTED, 416 
 
 OFFICER, 417 
 
 I. Authority and duty, 417 
 
 (a) Who may serve, 417 
 
 (b) Sow it may be served, 418 
 
 (c) Specific instructiom, 418 
 
 (d) Return, 419 
 
 (e) In other respects, 419 
 n. Liabilities, 420 
 
 (a) Of sheriffs for acts of their 
 
 deputies, 420 
 
 (b) To creditors, 421 
 Cc) To debtors, 422 
 
 (d) To others, 422 
 
 (e) Liabilities of depitties to 
 
 sheriffs, 423 
 
 HI. Justification, 423 
 
 rV. Indemnity, 424 
 
 OFFICER DE FACTO, 424 
 
 ORDER, 424 
 
 OUSTER, 425 
 OVERSEERS OF THE POOR, 425 
 
 PARENT AND CHILD, 425 
 
 PARISH, 426 
 
 PAROL REPRESENTATION, 426 
 
 PARTITION, ■ 426 
 
 I. By whom, and of what, parti- 
 
 tiou may be had, 426 
 
 n. Who may resist, and on what 
 
 grounds, 427 
 
 m. Proceedings, 427 
 
 rV. Effect, 429 
 
 PARTNERSHIP, 430 
 
 I. What wiU constitute a partner- 
 ship, 430' 
 
 II. What wiU dissolve a partner- 
 
 ship, 431 
 
 m. Powers and liabilities of part- 
 ners, 431 
 (a} As it respects the partner- 
 ship property, 431 
 
 (b) As it respects each other, 432 
 
 (c) Bow far one can bind the 
 
 firm, 433 
 
 rV. Pleadings, 434 
 
 V. Evidence, 
 
 434 
 
 PART OWNERS, 
 
 435 
 
 PATENT, 
 
 436 
 
 PAUPER, 
 
 436 
 
 I. Settlement, 
 
 436 
 
 (a) By derivation. 
 
 436 
 
 (b) Incorporation, or division, 
 
 or annexation of tovms, 437 
 
 (c) Residence Jme years, 439 
 
 (d) Domicil, 439 
 
 (e) When prevented by receiving 
 
 relief as a pauper, 440 
 
 (f) Generally, and herein of 
 
 emancipation, 440 
 
 n. Liabilities of towns, 441 
 
 III. Actions, 441 
 
 (a) Between towns, 441 
 
 (b) Notice, 443 
 
 (c) Individuals against towns, 444 
 
 (d) Towns against individuals, 444 
 PAYMENT, 444 
 
 I. What is a payment, and its ef- 
 
 fect, 444 
 
 II.' Appropriation of payment, 446 
 PEDDLING AND PEDDLERS, 448 
 PENALTY, 448 
 
 PENOBSCOT RIVER, 449 
 
 PENSION, 449 
 
 PERJURY, 449 
 
 PERSONAL PROPERTY, 449 
 
 PLANTATION, 450 
 
 PLEADING, 450 
 
 I. Parties, 451 
 
 (a) Generally, 451 
 
 (b) Joinder of plaintiffs, 451 
 
 (c) Joinder of defendants, 451 
 H. Declaration, 451 
 
 (a) General rules, 451 
 
 (b) 'Declarations in particular 
 
 actions, 452 
 
 (c) Variance, 453 
 
 (d) Joinder of counts, 453 
 
 (e) Wrong venue, 453 
 in. Results of pleadings, 453 
 IV. General requisites of plead- 
 ings, 454 
 
 (a) Certainty and particularity, 454 
 
 (b) Materiality, 454 
 
 (c) Forming an issue and con- 
 
 clusion of pleas, 454 
 
 (d) Variance, 455 
 V. Special pleading generally, 455 
 
 VI. Pleading double, 455 
 
 VII. Defects in pleading, when 
 
 cured, 455 
 
 Vin. Admissions by pleading, 456 
 
 IX. Brief statements, counter brief 
 
 statements and specifications 
 
 of defence, 456 
 
 POOR DEBTOR, 457 
 
 I. Arrest on mesne process, 457 
 
 II. Proceedings in obtaining dis- 
 
 charge, 457 
 
 (a) Application and notice to 
 
 creditors, 457 
 
Ixxviii 
 
 TABLE OF CONTENTS. 
 
 (b) JusticBS, i^nd their selection, 458 
 
 (c) Examination and proceed- 
 
 ings, 459 
 
 (d) Appraisal and assignment 
 
 of property disclosed, 460 
 
 (e) Record and certificate of dis- 
 
 charge, and its effect, 460 
 
 in. Bonds, 461 
 
 (a) Form, and to whom given, 461 
 
 (b) When good at common law, 461 
 
 (c) On mesne process, 462 
 
 (d) For disclosure on execution, 462 
 
 (e) When the condition is broken, 
 
 and when not, 463 
 
 (f ) Damages, 464 
 rV. Palse disclosure, 466 
 
 PEACTICE, 466 
 
 I. Appeaiance, 466 
 
 II. Agreed statement of facta, re- 
 port and exceptions, 466 
 m. Motions and proceedings ia 
 
 court before trial, 467 
 
 (a) Motions in abatement, 467 
 
 (b) Notice to produce papers, ' 468 
 
 (c) Generally, 468 
 rV. Trial, 469 
 
 (a) Loss of papers, 469 
 
 (b) Might to open and close, 469 
 
 (c) Depositions, 469 
 
 (d) ExamirMtion of witnesses, 469 
 
 (e) Mode of conducting trials 
 
 and arguments, 470 
 
 (f ) Issue to be tried, 470 
 
 (g) Agreements of parties, 470 
 (h) Ordering a nonsuit, or de- 
 fault, or other judgment, 471 
 
 (i) Power of the court to direct. 
 
 the course of trial, 471 
 
 ( j) Instructions to the jury, and 
 
 sending them out, 472 
 
 (k) Assessment of damages, 474 
 
 (1) Rules of court, 475 
 
 (m) Generallu, 475 
 
 PRESCRIPTION, 475 
 
 PRESUMPTION, 477 
 
 PRIVITY OF INTEREST, 478 
 
 PROBABLE CAUSE, 478 
 
 PROBATE ACCOUNT, 478 
 
 PROBATE BONDS, 479 
 
 PROBATE COURT, 479 
 
 PROCHEIN AMI, 481 
 
 PROPRIETORS OF LAND, 482 
 
 PUBLIC ACTS, 482 
 
 PXTBLIC LOTS, 4S2 
 
 aUARANTINE^ 
 QUO WARRANTO, 
 
 484 
 484 
 
 RAILROADS, 484 
 
 RAPE, 487 
 
 REAL ACTION, 487 
 
 I. When maintainable, 487 
 
 n. Pleadings by the plaintiff^ 488 
 
 III. Pleadings by the defendant, 489 
 
 rV. E-vidence, 490 
 
 (a) On the part of the demand- 
 
 ant, 490 
 
 (b) On the part of the tenant, 490 
 Y, Judgment and its effect, .490 
 
 RECEIPT, 491 
 
 RECEIVER OF STOLEN GOODS, 491 
 
 RECOGNITION OF TITLE, 491 
 
 RECOGNIZANCE, 491 
 
 I. In criminal cases, 491 
 
 n. On appeal in ciTil actions, 492 
 
 in. Actions upon recognizances, 492 
 
 RE-COMMITMENT OF REPORTS, 493 
 
 RECORD, 493 
 
 RECORD OF BIRTHS AND 
 
 DEATHS, 495 
 
 REFEREES, 495 
 REGISTER AND REGISTRY OF 
 
 DEEDS, 495 
 REGULATIONS IN MANUFAC- 
 TURING ESTABLISH- 
 MENTS, 495 
 RELATIONSHIP, 496 
 RELEASE, 496 
 RENTS AND PROFITS, 497 
 REPEAL, 497 
 REPLEVIN, 497 
 I. Who may maintain replevin, 497 
 n. When maintainable, 498 
 IIL Bond, 498 
 IV. Judgment for a return, 499 
 V. Pleadings, evidence and prac- 
 tice, 600 
 VI. Service, 601 
 REPLEVIN OF A PERSON, 501 
 RESCUE, 601 
 RESERVATION, 602 
 RESERVED LANDS, 602 
 RESIDUARY LEGATEE, 502 
 REVENUE LAWS, 602 
 REVERSION AND REVERSION- 
 ERS, 502 
 REVIEW, 603 
 REWARD, 504 
 RIGHT OF ENTRY AND RE- 
 ENTRY, 605 
 RIOT, 605 
 RIPARIAN RIGHTS, 605 
 RULES OF COURT, 506 
 RISK, 607 
 
 SABBATH, 507 
 
 SALE, 607 
 
 I. Delivery, 607 
 
 H. Construction and terms of sale, 608 
 
 (a) Upon condition, 608 
 
 (b) When property passes, 608 
 
 (c) Validity of sale, and liabil- 
 
 ity of parties, 609 
 
 (d) Warranty, and liaAHity of 
 
 parties, 611 
 
 III. When voidable, 611 
 
 (a) By vendor, 611 
 
 (b) By vendee, 612 
 rV. Special sales, 612 
 
 y. Sale under legal process, 612 
 
TABLE OP CONTENTS. 
 
 Ixxix 
 
 VI. ETidence, 
 
 613 
 
 SALVAGE, 
 
 613 
 
 SCHOOLS, 
 
 613 
 
 SCHOOL DISTRICT, 
 
 614 
 
 SCHOOL FUND, 
 
 617 
 
 SCHOOL TEACHER, 
 
 617 
 
 SCIRE FACIAS, 
 
 617 
 
 SEAL AND SEALED INSTRU- 
 
 
 MENTS, 
 
 618 
 
 SEARCH WARRANT, 
 
 618 
 
 SEIZIN AND DISSEIZIN, 
 
 519 
 
 I. What is a good seizin, 
 
 619 
 
 U, Disseizin, 
 
 619 
 
 (a) What is, 
 
 619 
 
 (b) Who may be disseized, and 
 
 of what, 620 
 
 (c) Bights of the disseizor and 
 
 disseizee, v 620 
 
 (d) JEffect of a disseizin, 621 
 in. Evidence, 621 
 
 SERVICE, 621 
 
 SET-OFF, 621 
 
 I. What claims may be set off, and 
 
 when, 621 
 
 n. How and when to be present- 
 ed and allowed, 623 
 in. Set-off of judgments and exe- 
 cutions,' 628 
 SETTLEMENT, 624 
 SHERIFF, 624 
 SHIPPING, 625 
 I. Title, 625 
 
 II. Master and seamen, 526 
 
 (a) Of the ditty and authority of 
 
 the master as agent, 526 
 
 (b) Wages of seamen, 527 
 ^c) In other respects, 627 
 
 III. Rights and liabilities of own- 
 
 ers, 628 
 
 (a) For supplies and repairs, 628 
 
 (b) In other respects, and in 
 
 general, 629 
 
 rV. Bills of lading, 530 
 
 V. Consignments, 630 
 
 VI. Freight, and charter parties, 631 
 VII. In other respects, 531 
 
 SKILL, PROFESSIONAL, 631 
 
 SOM. & KEN. R. R. CO. 532 
 
 SPECIFICATIONS OF DEFENCE, 532 
 STATUTES, 632 
 
 I. Construction, 532 
 
 H. What are public statutes, 534 
 
 III. Repeal and reyiyor, 534 
 
 IV. Generally, 53 5 
 STOCKHOLDERS, 535 
 STOLEN PROPERTY, 535 
 STREETS, 635 
 SUNDAY, 636 
 SUPERCARGO, 536 
 SUPERINTENDING SCHOOL 
 
 COMMITTEE, 536 
 
 SUPREME JUDICIAL COURT, 536 
 
 SURETY, 637 
 
 I- Liability, 637 
 
 II. When discharged, 639 
 
 in. Remedies, 640 
 
 SURGEON, 641 
 
 SURVEY AND SURVEYOR OF 
 
 LUMBER, 641 
 
 SURVIVING PARTNER, 541 
 
 SWINE, 541 
 
 TAX, 642 
 
 I. Assessment, 642 
 
 (a) Upon what assessments may 
 
 be made, 542 
 
 (b) Where, and to whom pro- 
 perty is to be assessed, 542 
 
 (c) Making assessments, 643 
 II. Abatement, 543 
 
 in. Sales of land for taxes, 543 
 
 IV. Remedy for illegal assessments, 545 
 
 V. Redemption and forfeiture, 645 
 
 VI. Evidence, 646 
 
 TELEGRAPH, 546 
 
 TENANTS IN COMMON, 546 
 
 TENANT BY CURTESY, 546 
 
 TENANT AT WILL, 547 
 
 TENDER, 547 
 
 TESTAMENTARY TRUSTEES, 648 
 
 TIME, 648 
 
 TITLE TO REAL ESTATE, 648 
 
 TOWN, 648 
 
 I. Powers and liabilities, 649 
 
 n. Meetings, warrant and return 
 
 for, 551 
 
 in. Town officers, 551 
 
 (a) Election and qualification, 551 
 
 (b) Powers and duties, 561 
 IV. Division of towns, 552 
 
 TOWN CLERK, 652 
 
 TREATIES, 652 
 
 TREES, 553 
 
 TRESPASS, 553 
 
 I. When the action will lie, and 
 
 for whom, 553 
 
 (a) For injuries to real estate, 653 
 
 (b) For injuries to personal 
 
 estate, 555 
 
 (c) Under process of law, 556 
 n. .ludgment, pleading and evi- 
 dence, 556 
 
 TROVER, 558 
 
 I. When it lies, 558 
 
 n. Parties, 559 
 
 in. Conversion, 559 
 
 rV. Pleading, 660 
 
 TRUSTEE PROCESS, 660 
 
 I. Process, 560 
 
 (a) When maintainable, 560 
 
 (b) Where, and against whom, 561 
 n. Disclosure, 661 
 
 in. When the trustee will be 
 
 charged, 562 
 
 (a) For specific property in his 
 hands, 552 
 
 (b) For indebtedness or other 
 liability, 663 
 
 rV. When discharged, 563 
 
Ixxx 
 
 TABLE OP CONTENTS. 
 
 V. Effect, as between the principal 
 
 and trustee, 666 
 
 VI. Practice, 666 
 
 Vn. GeneraUy, 668 
 
 TRUSTS, 668 
 
 USAGE, 670 
 
 USE AND OCCUPATION, 671 
 
 USER, 671 
 
 USURY, 671 
 I. What is usury, and its effects 
 
 upon contracts, 671 
 
 II. Remedy, 671 
 
 in. Evidence, 672 
 
 VARIANCE, 672 
 
 VENUE, 672 
 
 VERDICT, 673 
 
 I. When it may be affirmed, and 
 
 ■what may be sustained, 673 
 
 II. When it may be amended, 673 
 
 III. When it may be set aside, 673 
 
 VESSELS, 674 
 
 VOLUNTARY ASSOCIATION, 674 
 
 VOLUNTARY PAYMENT, 674 
 
 WAGES, 674 
 WAIVER, 675 
 WARD, 676 
 WARRANT AND SEARCH WAR- 
 RANT, 676 
 WARRANTY, 576 
 WASTE, 677 
 WATER POWER, 677 
 WAY, 678 
 I. Generally, and herein of rivers 
 
 and streams, 678 
 
 II. County roads or highways, 578 
 
 {a,) Authority to lay out, 678 
 
 (b) Preliminary proceedings, 679 
 
 (c) Proceedings in laying out, 679 
 
 (d) Appeal and proceedings, 579 
 III. Town or private ways, 679 
 
 (a) Proceedings and return, 679 
 
 (b) Acceptance, 579 
 
 (cj Appeal and proceedings, 680 
 rv, Damages for laying out and al- 
 tering, 680 
 V. Discontinuance, 680 
 VL Making, 681 
 vn. Defects and obstructions, 681 
 
 (a) Damages to persons and 
 
 property injured, 681 
 
 (b) Indictment, 683 
 
 (c) Obstructions by individuals, 684 
 VIII. Law of the road, 584 
 
 IX. Ways, other than by statute, 
 
 and right of way, 684 
 X. Ways in unincorporated places, 685 
 XI. Surveyors of highways, 686 
 WHARF, 687 
 WIDOW AND WIDOW'S AL- 
 LOWANCE, 687 
 WILL, 687 
 I. Probate, 687 
 II. Construction, 588 
 WITNESS, 690 
 I. Competency, 691 
 
 (a) Parties to the note or secu- 
 
 rity, 691 
 
 (b) Parties to the suit, 691 
 
 (c) Interest equally balanced, , 692 
 
 (d) When excluded for interest, 692 
 
 (e) When not exchided for in- 
 
 terest, 593 
 
 (f ) Restoration of competency, 694 
 
 (g) Agents and attorneys, 695 
 (h) Generally, 696 
 
 II. Examination, 696 
 fa) What a witness is excused 
 
 from testifying to, 596 
 
 (b) Contradiction and impeach- 
 
 ment, 596 
 
 (c) Voir dire, 697 
 WRITS AND PROCESSES, 597 
 
 I. Porm and validity, 597 
 
 II. Indorsement, • 598 
 
 in. Service, 698 
 
 APPENDIX, 
 
 699 
 
DIGEST. 
 
 ABANDONMENT. 
 
 A non user of a right, (acquired by use, to maintain a dam,) for twenty 
 years, furnishes presumptive evidence of an extinction of the right by aban- 
 donment. Farrar v. Cooper, xxxiv. 394. 
 
 See Instoance, 51, 52, 55, 56, 57, 59, 63, 65, 71. 
 Paoteb, 37, 38, 45. 
 
 ABATEMENT. 
 
 I. WHAT WILL ABATE A WRIT OR OTHER PROCESS. 
 
 II. HOW TO TAKE ADVANTAGE OF MATrERS IN ABATEMENT. 
 
 III. WHEN, AND BY WHOM, THE OBJECTION MUST BE MADE. 
 
 IV. POBM OP PLEA. 
 
 For abatement of taxes. See Tax, 13. 
 
 I. WHAT WILL ABATE A WRIT, OR OTHER PROCESS. 
 
 (a) Want of jurisdiction, or defects in the writ or service. 
 
 (b) Death or disability of parties. 
 
 (c) MrsNOMER or non-joindeb. 
 
 (d) Pendency of another action. 
 
 (a) Want of jurisdiction, or defects in the writ or service. 
 
 1. Chapter 119, § 5, of R. S. of 1841, may be pleaded in abatement by 
 the principal defendant, in a trustee suit, wherein the only trustees are a 
 corporation aggregate, having their established and usual place of business, 
 and having held their last annual meeting, in a county other than that in 
 which the suit is brought. Scudder v. Davis, xxxiii. 575. 
 
 2. For want of a sufficient service upon one of two or more defendants, 
 sued jointly on a promise, the writ is abateable as to aU. Sawtelle v. Jewell, 
 XXXIV. 543. 
 
 1 
 
2 ABATEMENT. 
 
 3. So, if no legal service has been made upon any writ, it is abateable. 
 Mace V. Woodward, xxxyiii. 426. Shaw v. Usher, xli. 102. 
 
 4. A ^vrit, against an administrator, after the estate has been rendered 
 insolvent, upon a claim disallowed by the commissioners, containing an order 
 to attach the goods of the intestate, is abateable. Thayer v. Gomstock, 
 XXXIX. 140. 
 
 5. In -^vrits of entry, the defendant may plead that he is not tenant of the 
 freehold, in abatement, but not in bar. Newhegin v. Langley, xxxix. 200. 
 
 6. An action of replevin, in which the officer took a bond with only one 
 surety, is abateable. Greely v. Currier, xxxix. 516. 
 
 7. A writ, brought before a magistrate, for trespass quare clausitm, will 
 not abate because the declaration contains matters of aggravation in the 
 destruction of plaintiff's property, and claims three times the value ; nor 
 because it omits to state, that the trespass was committed wilfully and 
 maliciously, and contra formam statuti. Fogg v. Gushing, XL. 315. 
 
 8. A party cannot plead a matter in abatement, which affects only his 
 co-defendant. Bonzey v. Bedman, xl. 336. 
 
 9. A writ, served by the sheriff on the defendants, one of whom is his 
 deputy, may be abated by plea of the deputy ; but when pleaded by another, 
 it will avail none of the defendants. Bonzey v. Bedman, xl. 336. 
 
 (b) Death or disability of parties. 
 
 10. At common law, the death of a sole party, pendente lite, abated the 
 ■writ ; and the process of petition for partition does not come within the pro- 
 visions of R. S. of 1841. Dwinal v. Holmes, xxxvii. 97. 
 
 (c) Misnomer or non-joinder. 
 
 11. All the owners of the miU-dam complained of must be joined in a 
 complaint for flowing, or it will abate. Hill v. Baker, xxviii. 9. 
 
 12. The non-joinder of a co-promisor can be taken advantage of only by 
 plea in abatement. White v. Gushing, xxx. 267. 
 
 13. In tort, if the plaintiff be but a tenant in common with others, a non- 
 joinder-may be taken advantage of by plea in abatement, or by an apportion- 
 ment in damages. Holmes v. Sprowl, xxxi. 73. Jones v. Lowell, xxxT. 
 538. 
 
 14. Whether a plea in abatement for a misnomer, setting forth only the 
 omission of the initial letter of the middle name, is sufficient, guoere. State 
 V. Homer, xl. 438. 
 
 (d) Pendency of another action. 
 
 15. An action at law, commenced on the subject matter pending before 
 referees, the submission not having been revoked, may be abated. Small v. 
 Thurlow, XXXVII. 504. 
 
 II. HOW TO TAKE ADVANTAGE OF MATTERS IN ABATEMENT. 
 16. When there is no return day, or an erroneous one, in a writ, ad- 
 
ABATEMENT. 3 
 
 vantage of such error can be taken only by plea in abatement or by motion. 
 Pattee v. Lowe, xxxt. 121. 
 
 17. A defect in mesne process, if not apparent upon the record, can be 
 taken advantage of only by plea in abatement ; but if such, defect be appa- 
 rent upon the record, the writ will abate on motion. Chamberlain v. Lake, 
 XXXVI. 388. Mace v. Woodward, xxxviii. 426. Thayer v. Gomstoch, 
 XXXIX. 140. Oreely v. Currier, xxxix. 516.- Shaw v. Usher, xli. 102. 
 
 18. Non-tenure can only be pleaded in abatement, and within the time 
 prescribed by the rules of Court. Fogg v. Fogg, xxxi. 302. Manning v. 
 Laboree, xxxiii. 343. Eldridge v. Preble, xxxiY. 148. Newbegin v. Lang- 
 ley, XXXIX. 200. 
 
 19. If, in replevin, the same writ is used in different counties to the plain- 
 tiff's goods, the error must be shown in abatement. Hall v. Gilmore, XL. 
 578. 
 
 See Vakiance. 
 
 m. WHEN, AND BY WHOM, THE OBJECTION MUST BE MADE. 
 
 (a) At "WHAT TIME, PLEAS OR MOTIONS IN ABATEMENT MUST BE PILED OB, MADE. 
 
 (b) What will be a waiver op matters in abatement. 
 
 (a) At what time, pleas or motions in abatement must he filed or made. 
 
 20. In all matters of abatement, the plea in abatement or motion must be 
 filed within the first two days of the term, to which the writ or process 
 is returnable. Fogg v. Fogg, xxxi. 302. Shorey v. Hussey, xxxii. 579. 
 Pattee v. Lowe, xxxy. 121. Nickerson v. Nickerson, xxxvi. 417. Mace 
 V. Woodward, xxxviii. 426. Smith v. Davis, xxxviii. 459. Warren v. 
 Miller, XXXIII. 220. 
 
 21. That, at the first term, none but a " specmZ" appearance was entered 
 for the defendant, forms no exception to the rule. Snell v. Snell, xi. 307. 
 
 (b) What will be a waiver of matters in abatement. 
 
 22. In replevin, after issue joined upon the merits, it is too late to object 
 that no replevin bond has been returned. Wilson v. Nichols, xxix. 566. 
 White V. Gushing, xxx. 267. 
 
 23. So, the pleading of the general issue to a writ having no return day, or 
 an erroneous one, is a waiver of such defects ; and the Court, upon motion, 
 wiU allow the writ to be amended. Pattee v. Lowe, xxxv. 121. 
 
 24. When the defendant appears and pleads to the merits of a suit, he 
 thereby waives any objections to the want of service of the writ. Woodman 
 V. Smith, XXXVII. 21. B. B. R. B. Co. v. Benson, xtiii. 374. 
 
 25. After pleading the general issue, no objection can be taken by the de- 
 fendant, to the non-joinder of his joint co-promisor. Beed v. Wilson, xxxix 
 585. 
 
 26. A general appearance and a continuance of the action, is a waiver of 
 any and all defects in the service. Shaw v. Usher, xii. 102. 
 
 See Waivee. 
 
4 ABORTION. — ACCESSION. 
 
 IV. FORM or PLEA. 
 
 27. The law does not favor pleas in abatement ; and it requires that they 
 should be pleaded with great precision and certainty. Hazzard v. Haskell, 
 XXVII. 549. Burnham v. Howard, xxxi. 569. Adams v. Hodsdon, xxxiii. 
 225. 
 
 28. By a rule of Court, pleas in abatement, if consisting of matters of fact 
 not apparent on the face of the record, must be verified by oath or affirmation. 
 Fogg V. Fogg, xxxi. 302. 
 
 29. Such verification must be positive as to every matter of fact alleged in 
 the plea. An affidavit, that the plea is true, according to the best knowledge 
 and belief of the affiant, is not sufficient. Fogg v. Fogg, xxxi. 302. 
 
 30. When a plea, in order to be valid, requires a verification, it must be 
 adjudged bad if it have no verification, or a defective one. Fogg v. Fogg, 
 XXXI. 302. 
 
 31. Pilatory pleas should be such as to preclude all presumption, inference 
 or argument against the party pleading ; and should contain that ^technical 
 accuracy, which is not liable to the most subtle objection, and which excludes 
 all such supposable matter, as, if alleged on the other side, would defeat the 
 plea. Burnham v. Howard, xxxi. 569. Adams v. Hodsdon, xxxiii. 225. 
 Tweed v. Libbey, xxxvii. 49. 
 
 32. A plea to the mode of service of the writ, that the defendant's property 
 was attached, but by the return on the vnrit,- " no summons in the form of law 
 was delivered to him, or left at his dwellinghouse or place of his last and 
 usual abode," is defective, although he is declared against in the virit as an 
 inhabitant of this State. Tweed v. Libbey, xxxTii. 49. 
 
 ABORTION. 
 
 1 . To procure an abortion upon a female, pregnant but not quick with 
 child, was not, at common law, an ofience, if done with her consent. Smith 
 V. State, XXXIII. 48. 
 
 2. By R. S. of 1841, c. 160, § § 13 and 14, it is rendered equally criminal 
 to produce abortion before and after quickening. And the unsuccessful at- 
 tempt to cause the destruction of an unborn child is a crime, whether the 
 child be quick or not. Smith v. State, xxxiii. 48. 
 
 ACCESSION. 
 
 When materials, belonging to several persons, are united, by labor, into a 
 single article, forming a joint product, the owner of the principal materials 
 wiU acquire the right of the property in the whole, by right of accession. 
 Pulcifer v. Page, xxxii. 404. 
 
ACCESSOEY.— ACCOUNT. 5 
 
 ACCESSORY. 
 
 1. R. S. of 1841, c. 167, § 4, is not to be understood as abrogating the 
 distinction between principal and accessory, but as clearly preserving it. State 
 V. Bicker, xxix. 84. 
 
 2. A substantive felony is that which depends upon itself, and not upon 
 another felony, which is established by the conviction of the one who com- 
 mitted it alone. State v. Bicker,^xxix. 84. 
 
 3. Under R. S.' of 1841, the accessory maybe indicted and convicted, 
 without reference to the conviction of the principal, either in the indictment 
 or on the trial, though the guUt of the principal is a necessary fact to be 
 shown on the trial. The guilt of the principal wiU be alleged in the same 
 manner, as if he alone had been concerned, followed by the averment of the 
 acts done by the procurer, which constitute him an accessory before the fact. 
 State V. Bicker, xxix. 84. 
 
 4. On an indictment for an assault with a dangerous weapon, with intent 
 A. B. to kill and murder, a verdict that the accused was guUty of being ac- 
 cessory before the fact, of an assault with an intent to kiU A. B., cannot be 
 sustained; because such is not the offence charged. State v. Scannell, 
 XXXIX. 68. 
 
 ACCOUNT. 
 
 1 . Account is the proper remedy to be used by one part owner against 
 another part owner of a vessel, for the adjustment of the expenses and profits 
 of such vessel. Pingree v. McGuire, xxx. 508. Hardy v. Sprowl, xxxiil. 
 508. 
 
 2. The action of account is expressly sanctioned by R. S. of 1841, c. 115, 
 § 57. In such action, two judgments are rendered; one interlocutory, de- 
 termining whether the relations between the parties exist which give the 
 plaintiff a right to an account ; and the other final, as to the account found 
 due by the auditors. Closson v. Means, xl. 337. 
 
 3. Auditors appointed under § 49 of c. 115, of R. S., are the proper tribu- 
 nal in all actions of account ; and the law does not require them to report the 
 facts by them found, although one of the parties may request them so to do ; 
 but their report is conclusive when no issues of fact are made before them, 
 and no charge of misconduct or partiality made against them. Closson v. 
 "'^ -"s, xi. 337. 
 
 4. Pleas in bar of the action of account must be filed prior to the inter- 
 locutory judgment. Closson v. Means, xi. 337. 
 
 5. A. having agreed in settlement with B. for stumpage, that he would 
 " account or aUow" B. " any and all deductions" which A. might obtain from 
 the State on account of stumpage, B. having first to "pay or allow" A. " all 
 his expenses, costs and trouble" in obtaining them : — Held 
 
 1st. That, as the deductions had to be effected through the agency of A., 
 who would thus know when they were made and to what amount, he was 
 bound to account to or allow B. the amjDunt of the same, less such reasonable 
 expenses, costs and trouble ; — 
 
6 ACTIONS AND REMEDIES. 
 
 2d. That A., having by a transfer of the judgment which he held against 
 B., put it out of his power to " allow" the amount thereon as contemplated 
 when the agreement was made, he was bound to account to him for the same ; — 
 
 3d. That a reasonable time having elapsed after the deductions were made, 
 B. could maintain his action against A. for the amount due him without any 
 previous demand ; and — 
 
 4th. That B. was entitled to interest on the balance due him from the time 
 when the deductions were made. Hall v. Huchms, xli. 574. 
 
 ACKNOWLEDGEMENT OF DEEDS. 
 See Deed, 22, 44. 
 
 ACTIONS AND REMEDIES IN GENERAL. 
 
 I. BY AND AGAINST WHOM, AND FOR "WHAT, AN ACTION WILL 
 LIE. 
 n. COMMENCEMENT OF ACTIONS, 
 in. WHETHER LOCAL OR TRANSITORY. 
 IV. MULTIPLICITY OF ACTIONS. 
 
 L BY AND AGAINST WHOM, AND FOR WHAT, AN ACTION WILL 
 LIE. 
 
 1 . If a conveyance of an interest in land be made in the common form of 
 a quitclaim deed, containing the stipulation : " provided said grantee shall 
 pay said grantor or his assigns, twenty-two dollars annually from this date, 
 on demand," until the happening of a certain event ; and the grantee holds 
 under the deed, but fails to make annual payments when demanded ; the 
 grantor may sustain an action of assumpsit against the grantee, to recover the 
 money. B-uff v. Nicherson, xxvii. 106. 
 
 2. When the plaintiff, by operation of law, is compelled to pay a debt, 
 which, in equity and good conscience, the defendant should have kept from 
 being so claimed and paid, an action may be maintained to recover the 
 amount so paid. Ticonic Bank v. Smiley, xxvii. 225. 
 
 3. Damages may be recovered for non-performance of personal services, as 
 well as for the neglect of performance of services to be performed by others. 
 Eoyt V. Bradley, XXTII. 242. 
 
 4. To make a statement of what was contained in a deed of conveyance, 
 and express an opinion of its effect, furnishes no proof that the person so 
 making it, knowingly made such representations as would make him liable to 
 an action. Hoyt v. Bradley, xxvii. 242. 
 
 5. The personal property of a bankrupt, whether inserted in his schedule 
 of effects or not, instantly vests in the assignee on his appointment. And the 
 purchaser of any such property of an assignee, may maintain an action for 
 the recovery thereof, in his ovm name. Jewett v. Preston, xxvii. 400. 
 
ACTIONS AND REMEDIES IN GENERAL. 7 
 
 6. When a suit pending in court, and the contract upon which it was 
 founded, were assigned; and afterwards the assignor died, and the action 
 was prosecuted to judgment by the administrator ; and the execution issued 
 upon the judgment was satisiied by a levy upon land ; a bill in equity, brought 
 by the assignee, praying for a decree that the administrator should convey the 
 land levied upon, to him, cannot be sustained, the remedy being against the 
 heu'S. Sitnmons v. Moulton, xxvii. 496. 
 
 7. In an action for use and occupation, where a third person, during the 
 time, was in the actual occupation of the premises, and there was no letting 
 to the defendant, but the only extent of Kis undertaking was, that he would 
 pay the subsequently accruing rent ; such an agreement cannot make the de- 
 fendant liable in such an action. .Tobie v. Smith, xxviii. 106. 
 
 8. One and the same person cannot, in the same suit, alone sustain the 
 twofold character of plaintiff and defendant, to enforce a right and redress a 
 wrong. Denny v. Metcalf, xxviii. 389. 
 
 9. The purchaser of personal property under attachment, may maintain an 
 action against the attaching officer, for an injury done by him to it after the 
 purchase. Richardson v. Kimhall, xxviii. 463. 
 
 10. And the purchaser may waive the tort, and recover in assumpsit, any 
 money in the hands of the tort-feasor, as the fruits derived from the wrongful 
 act. Richardson v. Kimhall, xxviii. 463. 
 
 11. When, on motion, the plaintiff was ordered to file a bUl of particulars 
 or specification of his claim, and the biU filed was merely; — "To bUl for cut- 
 ting and hauling logs on Brassua in the winter of 1841 and 42, $3248,65," 
 with credits reducing the amount to $810,65, if objection had been taken at 
 the trial, the plaintiff could not have recovered upon money counts ; but as 
 no objection was made in the offering of evidence pertinent only under those 
 counts, the defendant must be considered as having assented thereto. Parker 
 v. Emery, xxviii. 492. 
 
 12. If the plaintiff declares only upon an implied contract, for services per- 
 formed, and the proof is, that they were performed under a special contract, 
 
 ' and for a person other than the defendant, who had no connection with the 
 transactions until long afterwards, the plaintiff cannot recover by proof of a 
 promise by the defendant to pay such debt. To recover upon such evidence, 
 there should have been a count upon the promise to pay the debt of the 
 other person. Parker v. Emery, xxviii. 492. 
 
 13. Where one was sentenced to pay a fine and costs, and be committed 
 until the payment is made, and after lying in prison thirty days, was liberat- 
 ed by the sheriff, upon giving his note for the amount of fine and costs, with- 
 out being required to make a schedule of his property, or take or subscribe 
 any oath to any schedule ; an action can be maintained on said note, there 
 being no corrupt agreement by the sheriff to allow these omissions of his duty. 
 Joy V. Phillips, xxix. 255. 
 
 14. Where one brings a suit in the name of another person, the same de- 
 fence may be made, as if he were a party to the record. Sproule v. Merrill 
 XXIX. 260. 
 
 15. Any illegality in the transfer of a negotiable note, will vitiate the title 
 of one who was a party to the illegality. Sproule v. Merrill, xxix! 260. 
 
 16. An action brought in the name of another person without his authority, 
 IS a groundless and unlawful suit, and, for damage done to the defendant in 
 such suit, he may recover against the person by whom it was brought. Foster 
 V. Bow, XXIX. 442. 
 
8 ACTIONS AND REMEDIES IN GENERAL. 
 
 17. In such action, the amount of damages will not be lessened by proving 
 that the person named as plaintiflF in the original suit had a right of action. 
 Foster V. Dow, xxix. 442. 
 
 18. Before an action can be maintained to collect fees for committing per- 
 sons to the house of correction in Portland, they must be audited by the Coun- 
 ty Commissioners and found to be due. Huse v. Cumberland, xxix. 467. 
 
 19. If one procure an attachment upon real estate to be ante-dated, so that 
 it falsely appears of record that it was prior to a conveyance made by the 
 owner to a third person, and such third person, not knowing that the attach- 
 ment was ante-dated, pays the creditor the amount which the attachment pur- 
 ports to secure, he may recover back the same in an action at law, although 
 the money was paid to the defendant by the hand of his debtor, without any 
 disclosure that he was paying it as the agent of the plaintiff. Handly v. Gall, 
 XXX. 9. 
 
 20. It is no defence to such an action, that the defendant intended no fraud 
 upon the plaintiff, or any other person ; or that he was ignorant that the plain- 
 tiff had furftished the money ; or that the money was paid before there was 
 any certainty that he would be injured by the attachment ; or that there was 
 no seizure on the execution, and that the plaintiff had never been disturbed. 
 Handly v. Call, xxx. 9. 
 
 21. A. was in prison in Massachusetts, upon an indictment for having 
 fraudulently obtained goods from the prosecutor by false pretences. The 
 prosecutor then agreed with B., a friend of A., to procure a nol. "pros, if he 
 would pay the costs and give his notes for a specified sum, to be allowed for 
 the goods. The prosecutor procured the nol. pros, to be entered, and A. to 
 be thereby discharged. B. refused to give the notes as he had promised ; and 
 the promise being for an illegal consideration, no action could be maintained 
 by the prosecutor upon it. Shaw v. Reed, xxx. 105. 
 
 22. After the lapse of a year, an action for a legacy, under some circum- 
 stances, may be maintained by a residuary legatee against the executor, 
 before the final settlement of the estate. But it must appear that there are 
 assets in the hands of the executor ; and if it also appear that there are other 
 and superior claims upon the assets, to their full amount, the residuary legatee 
 must be postponed. Smith v. Lambert, xxx. 137. 
 
 23. Though the probate records would be evidence which the executor 
 could not controvert, still it is not essential to the maintenance of the action, 
 that they should show assets, liable to a residuary legatee. After the lapse of 
 a year, there is a presumption that the debts due from the estate, have all 
 been paid. Smith v. Lambert, xxx. 137. 
 
 24. A surveyor of highways, who, after having expended the assessments 
 committed to him for the repair of the road, and found the same insufficient, 
 is directed by the selectmen to proceed with the work, and thereupon expends 
 
 , a further sum, has no remedy against the town, unless such direction is in 
 writing. Morrell v. Dixfield, xxx. 157. 
 
 25. Where the town voted to allow the plaintiff $700, provided another 
 person, who presented a claim against the town, would accept $200 for his 
 claim, which the latter refused ; — Held, the town had a right to fix the con- 
 dition ; it was not an impossible condition ; and not, therefore, one which is 
 void. Morrell v. Dixfield, xxx. 157. 
 
 26. There must be proof of damage actually suffered, to enable one to 
 maintain an action upon a contract of indemnity. Hussey v. Collins, xxx. 
 190. 
 
ACTIONS AND REMEDIES IN GENERAL. ,■9 
 
 27. Any action which survives against the personal representatives of one 
 party, must be considered as surviving in favor of the personal representatives 
 of the other party. Valentine v. Norton, xxx. 194. > 
 
 28. An action for misfeasance of a sheriff or his deputy, does not survive 
 against his personal representatives, nor in favor of the personal representa- 
 tives of the party injured. Valentine v. Norton, xxx. 194. , 
 
 29. Until a street has been opened, a grantee of one of the lots bounded 
 upon it, according to a plan, can maintain no action for the , creating of an 
 obstruction upon the ground, represented upon the plan for the street. 
 Southerland v. Jaclcson, xxx. 462. 
 
 30. Although a receipt for property attached was taken by direction of the 
 creditor, and the officer's liability discharged, stiU the creditor can enforce 
 payment of such contract in the name of the officer. Hapgood v. Fisher, 
 xxx. 502. 
 
 31. Where one tenant in common has received, from others, rents and 
 profits of the common property, he is accountable in an action of assumpsit, 
 to his co-tenant for his share. Buck v. Stafford, xxxi. 34. 
 
 32. Where it was submitted to referees, to determine the validity of a title 
 to real estate, and that, if they should adjudge the title to be perfect, they 
 should award a just compensation therefor, and they adjudged the title good, 
 and they awarded the compensation for it, no action lies by the grantee 
 against the grantor, to recover money afterwards paid to extinguish an out- 
 standing tax not known to the referees. Pease v. Whitten, xxxi. 117. 
 
 33. A decree of discharge in bankruptcy, like all judgments, is final upon 
 the parties thereto. Hence, a creditor having proved his claim in bankruptcy, 
 and having neglected to show such fraud, or concealment, or unlawful prefer- 
 ence of creditors as would defeat the bankrupt's petition for discharge, or 
 would vacate it, if obtained, so far as he would be prejudiced by it, is debarred 
 from maintaining a suit upon his claim which had been so allowed. This 
 disability, however, to show fraud and willful concealment, does not extend 
 beyond those, who have had an allowance of such claims. Sumplireys v. 
 Swett, XXXI. 192. 
 
 34. If a mortgage debt has been paid, no action can be maintained upon 
 the mortgage, even though it has not been formally discharged. Hadloch v. 
 Bulfinch, XXXI. 246. 
 
 35. The receiving of money by a first mortgagee in discharge of his mort- 
 gage, which was to secure a claim rendered void by statute, wiU not subject 
 him to an action, by a subsequent mortgagee for a lawful claim, to repover 
 such money. Ellsworth v. Mitchell, xxxi. 247. 
 
 36. No action can be maintained in this State, upon a judgment recover- 
 ered in another State, against a defendant, of whose person, the courts of that 
 State had no jurisdiction. And the ownership of property, in whatever form, 
 situated within a State, does not, of itself, give jurisdiction of the owner's 
 person. McVicher v. Beedy, xxxi. 314. 
 
 37. Neither will an action, brought here upon such judgment, be aided by 
 summoning the garnishee, and the payment of the sum disclosed. Mc Vicher 
 V. Beedy, xxxi. 314. 
 
 38. An action of debt may be supported for labor performed. McVicher 
 v. Beedy, xxxi. 314. 
 
 39. The estate of a deceased person is not liable to pay for mourning ap- 
 parel purchased by his family after his death. And one who furnishes such 
 
10 ACTIONS AND REMEDIES IN GENERAL. 
 
 apparel, believing the estate to be liable for it, and expressly stipulating that 
 he would look to the estate ifor compensation, cannot maintain an action 
 against any of the family upon an implied promise. JenJcs v. Mathews, xxxi. 
 318. 
 
 40. A surety, who has become liable to his principal to pay the debt, and 
 has seat his own money, by the debtor, to the officer holding a precept upon 
 the demand, and the oificer misappropriate the money, may maintain assump- 
 sit against the officer, and without a special demand, although the officer, 
 when he received the money, was not notified to whom it belonged. Stetson 
 V. Howe, XXXI. 353. 
 
 41. When a verdict and judgment have been rendered against a party 
 to a suit, he cannot maintain an action against the other party jointly with 
 others, upon an allegation that said verdict was unjust and false, and was 
 procured by them, through fraud and perjury, under a conspiracy to effect 
 that purpose. The plaintiff is estopped by the judgment, from proving the 
 charges alleged. Dunlap v. Olidden, xxxi. 435. 
 
 42. An action will not lie against one, who was a witness in another suit, 
 for giving false testimony. Dunlap v. Olidden, xxxi. 435. 
 
 43. F. conveyed land to S. and gave him " an obligation" that if, at the 
 end of a year, the land should not be worth the money paid, with interest, 
 he would make up the deficiency, " or otherwise pay that amount on receiving 
 a re-conveyance." At the same time S. gave F. a bond, that, on being paid 
 the said amount, at any time within a year, he would re-convey the land : — 
 Held, that during the first year, S. could have no right of action against F. 
 on the obligation, because F. had the election to redeem within the year ; but 
 that at the end of the year, his right of action accrued, and the statute of 
 limitations began to run. Smith v. Fiske, xxxi. 512. 
 
 44. Where an administrator, (prior to the Act of 22d of March, 1844,) 
 had received pension money due his intestate, in trust for a feme covert, she 
 and her husband jointly may recover the same. Shirley v. Walker, .xxxi. 
 541. 
 
 45. An action cannot be sustained upon an award of referees, made under 
 a statute submission of the parties. Sargent v. Hampden, xxxii. 78. 
 
 46. An action, brought by one co-surety against another, for contribution, 
 for money paid after the defendant's discharge in bankruptcy, is not barred by 
 that discharge, although the original obligation was payable before the defend- 
 ant petitioned to be decreed a bankrupt. The claim was too contingent and 
 uncertain to have been proved in a court of bankruptcy. Dole v. Warren, 
 xxxii. 94. 
 
 47. Where, in a suit upon a bond, the obligee struck out the name of one 
 of the defendant co-sureties, upon a suggestion being made of his bankruptcy, 
 and recovered judgment against the principal and another co-surety, the for- 
 mer co-surety is not relieved. Dole v. Warren, xxxii. 94. 
 
 48. A person, who, without authority, prosecutes a groundless suit in the 
 name of* another, is liable to the defendant in such action, for the expenses 
 and damages to which he has been subjected thereby, beyond the amount of 
 the taxed cost. Moulton v. Lowe, xxxii. 466. 
 
 49. An omission to caU. for the authority to commence such suit, is not a 
 waiver of his right to recover against the person who wrongfully commenced 
 it. Moulton V. Lowe, xxxil. 466. 
 
 50. Where one had sued another for his own benefit but in the name of 
 
ACTIONS AND REMEDIES IN GENERAL. 1 1 
 
 a third person, without authority, and upon a failure of such action, the 
 nominal plaintiff had paid the bill of cost, assumpsit will lie on an implied 
 promise, to recover the amount so paid, against the plaintiff in interest. 
 Stuart V. Lake, xxxiii. 87. 
 
 51. The defendant was selected by the principal, in a debtor's relief bond, 
 to hear his disclosure, and united with the other magistrate in granting a dis- 
 charge-certificate, when, in fact, the defendant had no authority to act as such 
 magistrate ; whereby the surety in the bond was obliged to pay the same ; — 
 Held, that for such assumption of authority, the surety could maintain no 
 action against him. Broohings v. Gunningham, xxxiii. 103. 
 
 52. An action against a customer, as for an article sold and delivered, can- 
 not be maintained by the manufacturer, unless it have been accepted. Moody 
 V. Brown, XXXIV. 107. 
 
 53. For a party who claims under a tender, made after the agreed pay- 
 day, and relies upon circumstances to justify the delay, a suit at law is not an 
 available remedy, although the time of payment was not of the essence of the 
 contract. Hill v. Fisher, xxxiv. 143. 
 
 54. Where one, in the sale of land subject to a mortgage, represents that a 
 specified sum only, is due upon the mortgage, which is deducted from the 
 agreed price of the land, the grantee is entitled to have a deduction of the 
 excess due upon the mortgage, over and above that specified sum, in a suit ^ 
 upon a note given for the purchase money. Stiles v. Sherman, xxxiv. 344. 
 
 55. A special Act extended the existence of a corporation for a limited 
 period, for the collection of its debts, and authorized its trustees to institute 
 such actions in its name, and prosecute the same to final judgment ; — 
 Held, that such actions, commenced within the allowed period, may be prose- 
 cuted after it has expired. Bank v. Cooper, xxxvi. 179. 
 
 56. For aid given to the defendant in a fraudulent transfer or concealment 
 of his property, pending an action of tort, sounding in damages, R. S., of 
 1841, c. 148, § 149, gives to the plaintiff no right of action, he not being a 
 creditor. Craig v. Wehher, xxxvi. 504. 
 
 57. Where the plaintiff performs services for another, at the request of the 
 defendant, and he knew that the defendant acted only as the friend and agent 
 of such third person, he can maintain no action against the defendant for 
 oompen-sation, although such other person was a partner of the defendant. 
 Batchelder v. McKenney, xxxvi. 555. 
 
 58. One, who instructs a town school without a statute certificate, cannot 
 recover his wages against the town, or against the agent who employed him, 
 although the agent might not have been sworn, or the district legally estab- 
 lished, or the town neglected to choose a S. S. Committee. Jose v. Moulton, 
 XXXVII. 367. • 
 
 59. One cannot make another' his debtor, by paying his promissory note, 
 without request, express or implied. Willis v. Hohson, xxxvii. 403. 
 
 60. An expressman received money from the maker to pay a note to a bank, 
 which money he otherwise disposed of; on the last day of grace, he requested 
 the plaintiffs to pay the note for him, which was done ; but, from the lateness 
 of the request, the payment could not be- made that day, and, to protect the 
 teller, the firm name of the express company and of the plaintiffs were indors- 
 ed upon the note, which was paid next day by plaintiffs : — Held, that the 
 plaintiffs could maintain no action upon the note against the maker. Willis 
 V. Hohson, XXXVII. 403. 
 
12 ACTIONS AND KEMEDIES IN GENERAL. 
 
 61. The creditor of a person under guardianship can maintain no action 
 against the guardian. Raymond v. Sawyer, xxxvii. 406. 
 
 62. If one, with a full knowledge of all the facts, or with the means of 
 knowledge, voluntarily pays money under a claim of right, he cannot recover 
 it back. Gooding v. Morgan, xxxvii. 419. 
 
 63. A negotiable note operates as payment of an account in full or in part ; 
 and if an account be thereby paid a second tim.e, under a mistake and with- 
 out a knowledge that it had been previously paid, the amount so paid a second 
 time may be recovered back. And such right of action would not be destro)'- 
 ed by a voluntary payment of the note, after a knowledge of the double pay- 
 ment had been obtained. But no action could be maintained to recover back 
 the money paid to discharge such note. Gooding v. Morgan, xxxvii. 419. 
 
 64. When a persoii draws an order in favor of another, it is a presumption 
 of law, that the consideration for it was paid or secured at the time the order 
 was drawn, and wiU not sustain an action on the money counts. Smith v. 
 Poor, -XXXVII. 462. 
 
 65. After an estate has been represented as insolvent, a creditor cannot 
 maintain an action against the administrator, unless his claim has been filed 
 before the commissioners, even should the estate prove to be solvent. McNally 
 V. Eerswell, xxxvii. 550. 
 
 • 66. Where the defendant was owner of a steamboat and one half of the 
 boat of the plaintiffs, and it was agreed to stock the gross earnings of both 
 boats and divide their proceeds equally at the termination of the season, and 
 the defendant received the entire earnings: — Held, that in order to recover, 
 in an action on an account annexed, their part of the earnings, the plaintifis 
 must show, that defendant had some earnings of both boats, which by right 
 belonged to them. Railroad v. White, xxxviii. 63. 
 
 67. An action upon a judgment may be maintained, although an alias exe- 
 cution was subsequently issued thereon, on which the debtor was arrested and 
 committed. Moor v. Toide, xxxviii. 133. 
 
 68. Where defendant cut grass on land claimed by the plaintiff, and against 
 his will, an action is maintainable upon the promise of defendant, that he 
 would pay for the grass on plaintiff's establishing his title. Balch v. Pattee, 
 XXXVIII. 353. 
 
 69. Proof, that damages have been sustained by the prosecution instituted 
 by the defendant maliciously, and without probable cause, is sufficient to sup- 
 port an action for conspiracy in instituting such prosecution. Page v. Gush- 
 ing, XXXVIII. 523. 
 
 70. Where the plaintiff sold property to defendants, under fraudulent rep- 
 . resentations, and received payment by ^n unriegotiable note against third per- 
 sons, the defendants are liable to the plaintiff on an implied guaranty. Gush- 
 ing V. Wyman, xxxviii. 589. 
 
 71. Where payment of part only of a debt is made, and no consideration 
 is disclosed for an agreement to forbear to collect the remainder, an action lies 
 to recover such balance, notwithstanding the Act of 1851, c. 213. Austin v. 
 Smith, xxxix. 203. 
 
 72. Where property insured is willfully and maliciously burned by a third 
 person, no action can be maintained against the wrongdoer, for the money 
 paid by the insurer, in his own name. Ins. Co. v. Bosher, xxxix. 253. 
 
 73. On a written acknowledgment of a deputy sherifi", that he has money 
 in his hands, arising from a sale of property assigned by the owner to the 
 
ACTIONS AND REMEDIES IN GENERAL. 13 
 
 plaintififs for the benefit of his creditors, and a promise to account to them as 
 such assignees upon certain contingencies, no action is maintainable by the 
 assignees after their fiduciary character has ceased, although said contingen- 
 cies have arisen, unless they have some interest in the money, or prove that 
 the suit is prosecuted at the request of one entitled to it. Morrill v. Dunn, 
 xxxilx. 281. 
 
 74. For work done by a defendant under a parol promise, that it should go 
 in payment of a debt from which he had been discharged in bankruptcy, an 
 action cannot be sustained, although the accounts of the parties remain 
 unliquidated. Sampson v. Curtis, xxxix. 398. 
 
 75. An individual corporator, who has suffered damage in a contract made 
 with an incorporated company, through the fraudulent acts and votes of its 
 directors, under color of their office, can maintain no action against them for 
 compensation, his remedy being against the company. Smith v. Poor, xi. 
 415. 
 
 76. An action cannot be maintained by the plaintiff on an agreement, made 
 by the defendant with a third party to pay such third party, even though the 
 consideration moved from the plaintiff. Tewksbury v. Hayes, xli. 123. 
 
 77. Under the Act of 1851, c. 213, no action can be maintained upon any 
 demand or claim which has been settled, canceled or discharged by the receipt 
 of any sum of money, or other valuable consideration, however small. Wey- 
 mouth V. Babcoch, xlii. 42. 
 
 78. Where one stipulates with another, for a valuable consideration, to pay 
 money or do some other beneficial act for a third, the latter, if there be no 
 objection other than the want of privity, may maintain an action for breach 
 of such engagement, or seek his remedy directly against the party with whom 
 his contract primarily existed ; but the two remedies are not concurrent, but 
 elective. Bohanan v. Pope, xiii. 93. 
 
 79. Where an injury is the result of negligence on the part of both parties, 
 no action can be maintained. Ooomls v. Purrington, xiii. 332. 
 
 80. The common law wiU afford no aid to a party whose claims can be 
 successfully enforced only by a violation of its principles, or in direct contra- 
 vention of a statute ; , and this principle is equally applicable to actions sound- 
 ing in tort. Lord v. Ohadbourne, xxii. 429. 
 
 81. No action can be maintained upon a memorandum of an auctioneer, of 
 the sale by him of real estate, unless such memorandum, within itself or by 
 reference to some other paper, show all the material conditions of the con- 
 tract. O'Donnell v. Leeman, xiiii. 158. 
 
 82. An action may be maintained upon an express promise to cancel and 
 deliver a note on condition that the promisee should find a receipt, which he 
 claimed to have received in discharge of the same debt, although the note was 
 subsequently paid. Gooding v. Morgan, xxiii. 168. 
 
 83. At^ common law, the assignee of a chose in action cannot maintain a 
 suit in his own name, unless there had been an assent to the assignment and 
 a promise by the debtor to pay the assignee. Myers v. Y. & G. B. B. Co., 
 XLiii. 232. 
 
 84. An action for damages by a servant, for an injury sustained by the 
 carelessness of a fellow servant in the same service, cannot be maintained 
 against their common employer, unless there be some contributing fault on 
 the part of such employer; notwithstanding the provisions of E S of 1841 
 c. 81, § 21. Carle v. B. & P. C. & B. B. Co., xiiii. 269. 
 
14 ACTIONS AND REMEDIES IN GENERAL. 
 
 85. No action will lie on a judgment of a justice of the peace, the record 
 of which does not show that the defendant was served with process, without 
 proof of such service. W. I. Manufacturing Go. v. Ooodwin, xliii. 431. 
 
 86. Where the defendant was master and part owner of a vessel, and the 
 plaintiff part owner of the cargo, he may maintain an action against the de- 
 fendant for his share of the proceeds of the sales of the cargo. True v. Mc- 
 Gilvery, xiiii. 485. 
 
 See Attachment, 76. 
 Bank, 6,' 21, 23. 
 City oe Poktland, 4, 9. 
 contbact, 98. 
 
 II. COMMENCEMENT OF ACTIONS. 
 
 87. Commissioners, appointed to make partition of lands upon several 
 petitions between several parties, under an agreement, that certain extra 
 services connected therewith should be remedied by them, and that the com- 
 missioners should apportion among them under the commission, cannot main- 
 tain a suit for their services against one alone of the parties ; nor against all, 
 until such apportionment be made. Hamlin v. Otis, xxxti. 381. 
 
 88. An action may be commenced on a note, on the same day it was legally 
 protested for non-payment. Banh v. Paulh, XL. 110. 
 
 89. Towns, furnishing necessary supplies to persons falling into distress, 
 who have their legal settlement in another town, may recover for such supplies 
 in an action, commenced within two years after the expiration of two months 
 from the giving of said notice, where no answer was returned. Eohlinston v. 
 Lisbon, XL. 287. 
 
 90. But if an answer were returned within the time prescribed by statute, 
 denying their liability, the action will be barred, if not commenced within 
 two years from the return of such answer. Bohbinston v. Lisbon, xi. 287. 
 
 See Bond, 24. 
 
 Limitation, 48. 
 
 in. "WHETHER LOCAL OR TRANSITORY. 
 
 91. Trover is a transitory action, and lies for a conversion of property, 
 committed within the bounds of a foreign jurisdiction. Bobinson v. Arm- 
 strong, XXXIV. 145. 
 
 rv. MULTiPLicrry or actions. 
 
 92. When a party has recovered in assumpsit, without objection, damages 
 for the tortious acts of another, he cannot recover in trespass for the same 
 cause, because the previous action was illegal. Brown v. Moran, xlii. 44. 
 
 See Abatement, 15. 
 
ADULTERY.— AGENCY. 15 
 
 ADULTERY. 
 
 1. An indictment against a man for adultery, is unsustainable if it neither 
 charge that he was a married man or that the female was a married woman, 
 at the time when the ojffence was alleged to have been committed. State v. 
 Thurstin, xxxv. 205. 
 
 2. The crime of adultery is well laid in an indictment, if at the time of 
 the offence, one only, of the parties, is alleged to be married. State v. 
 Hutchinson, xxxTi. 261. 
 
 3. Adultery can only be committed by parties, one of whom, at least, is 
 married, and by parties not married to each other. State v. Weatherhy, xliii. 
 258. 
 
 4. Where the wife was divorced for the fault of the husband, and he 
 married another, and cohabited with her without having obtained a like 
 divorce, he does not thereby commit the crime of adultery. State v. Weath- 
 erhy, XLIII. 258. 
 
 See Indictment. 
 
 AGENCY. 
 
 I. APPOINTMENT AND REVOCATION, AND HOW PROVED. 
 
 II. EXTENT OF AUTHORITY, AND DELEGATION OF POWERS. 
 
 III. RATIFICATION AND ADOPTION. 
 
 IV. TIME AND MANNER OF EXECUTING AGENCIES. 
 
 V. LIABILITIES OF PRINCIPAL, FOR ACTS OF AGENTS. 
 
 VI. LIABILITIES OF AGENTS. 
 
 VII. RIGHTS AND REMEDIES OF PRINCIPALS AND AGENTS. 
 
 VIU. FACTORS. 
 
 IX. PLEADINGS AND EVIDENCE. 
 
 I. APPOINTMENT AND REVOCATION, AND HOW PROVED. 
 
 1. As a general principle the same individual cannot be the agent of both 
 parties ; but persons having undertaken certain duties of a peculiar character, 
 such as brokers, are treated as agents of both parties. Hinckley v. Arey, 
 XXVII. 362. 
 
 2. The authority of agents may be inferred from facts and circumstances 
 connected with their transactions. Trundy v. Farrar, xxxii. 225. 
 
 3. A resolve of the legislature, authorizing the assessors of a plantation, 
 in their own names and for the use of its schools, to recover the value of tim- 
 ber and grass ^vrongfully taken from the lands reserved for public use, is not 
 a grant of the avails, but merely an appointment of agents for the public ; 
 which agency may be lawfully revoked by a repeal of the resolve. Dudley 
 V. Greene, xxxv. 14. 
 
 4. An authority in the master of a vessel to receive a partial payment in 
 advance of the freight, may be inferred from subsequent payments made to 
 him on that account, with the approbation of the owner. Drummond v. 
 Winslow, xxxTiii. 208. 
 
16 AGENCY. 
 
 n. EXTENT OF AUTHORITY, AND DELEGATION OF POWERS. 
 
 5. In making a contract for the composition of a debt, one man cannot be 
 the agent of both parties ; but when the composition is agreed upon with the 
 creditor by the agent of the debtor, he can be the agent of the creditor for 
 another and distinct purpose. Hinckley v. Arey, xxtii. 362. 
 
 6. Where a master of a vessel exceeds his authority in selling the same 
 under instructions of the o\^Tier, the principal is not bound. And one deal- 
 ing with a master, who is acting under special authority, is bound to know 
 the extent of it. Johnson v. Wingate, xxix. 404. 
 
 7. Where goods are sent by sea, and the master of the vessel is also super- 
 cargo, he acts, (after the arrival at the port of destination,) in relation to the 
 selling of the goods, as the agent of the consignor. And when he has un- 
 successfviUy used all reasonable efforts to effect a sale, and is under the neces- 
 sity of leaving port with his vessel, he is justified in committing the goods to 
 a responsible commission merchant for sale. Stone v. Waitt, xxxi. 409. 
 
 8. In the absence of evidence that an agency was limited, it is to be con- 
 sidered a general agency. And such an agency includes the authority to com- 
 mence and prosecute suits. Methuen v. Hayes, xxxiii. 169. 
 
 9. A written but unsealed authorization to use the name of the principal, in 
 settling for him a controverted matter, does not justify the agent in affixing 
 the seal of the principal. Wheeler v. Nevins, xxxiv. 54. Baker v. Free- 
 man, XXXV. 485. 
 
 10. An authority, given by the vote of a corporation to sell and convey its 
 real estate, may be reasonably construed to include a right to make a binding 
 contract to convey at a future day. Bank v. Hamhlet, xxxv. 491. 
 
 1 1 . An agent, lawfully authorized to raise money and create liability on the 
 part of an incorporated company, may also waive demand and notice on a 
 note indorsed by such company, even after the note has been negotiated. He 
 may also waive demand and notice to procure delay of payment, although in 
 procuring delay he may also be the agent of the maker. Nor will the fact, 
 that he agreed to pay more than the legal rate of interest for such delay, pre- 
 vent a recovery against the company, upon their indorsement of the amount 
 legally due. Whitney v. 8. P. Manuf'g Co., xxxix. 316. 
 
 See Tax, 23. 
 
 III. RATIFICATION AND ADOPTION. 
 
 12. If a principal does not, in a reasonable time after actual or presumed 
 notice of his agent's act, disapprove of the conduct of his agent, a presump- 
 tion of assent and ratification wiU arise. ' Johnson v. Wingate, xxix. 404. 
 
 13. Ratification is equivalent to original authority; to be binding it must 
 be made with full knowledge of all the facts. From the ratification or 
 adoption of one specific act, no implicatipn can arise, that another distinct, 
 independent act of the same party has been adopted or ratified. Forsyth v. 
 Day, XLI. 382. 
 
 14. A principal directed his agent to perform an act in his behalf, which 
 the agent had performed prior to the receipt of the directions : — Held, that 
 the act of the agent was ratified by the receipt of the instructions. Bice v. 
 McLarren, xlii. 157. 
 
 15. Authority given to an agent to arrange an unsettled affair and draw on 
 
AGENCY. 1 1 
 
 his principal for such sums as were necessary, is a virtual acceptance of a 
 draft made witt the knowledge and assent of such agent ; but such draft 
 cannot be substituted for another, payable to the order of a different person, 
 without the knowledge or consent of the principal or his agent. Gates v. 
 Parker, xliii. 544. 
 
 IV. TIME AND MANNER OF EXECUTING AGENCIES. 
 
 16. In view of all the parts of an unsealed contract, signed as agent by 
 one having authority, the agent will not be bound by it, if it be apparent that 
 the intention was to make it the contract of the principal and not of the 
 agent. Rogers v. March, xxxiii. 106. 
 
 17. To the foregoing rule, there is an exception, upon the ground of gene- 
 ral convenience, and the usage of trade, that agents and factors acting for 
 merchants resident in a, foreign country, are held personally liable upon all 
 contracts, whether they describe themselves as agents or not. Sogers v. 
 March, XXXIII. 106. 
 
 18. An agent, authorized to sign the name of his principal, effectually binds 
 him by simply affixing to the instrument the laame of his principal, as if it 
 were his own name. Forsyth v. Day, xli. 382. 
 
 19. It need not appear by the instrument itself that the agent made it 
 expressly as agent. Forsyth v. Day, xxi. 382. 
 
 See Attoeney, 2. 
 
 V. LIABILITY OE PRINCIPAL FOR ACTS OF AGENTS. 
 
 20. Whenever a corporation is acting within the scope of the legitimate 
 purposes of its institution, aU parol contracts made with its authorized agents, 
 are express contracts of the corporation. Trundy v. Farr'ar, xxxii. 225. 
 
 21.^ If an agent for selling goods, with authority to take money only, shall 
 sell his own goods and those of his principal, in one and the same sale, re- 
 ceiving payment in money and in other sorts of property, his principal is 
 bound by the sale, provided the money received amounted to the value of his 
 goods. Moore v. Thompson, xxxii. 497. 
 
 22. In order to hold a party on implied authority, it must appear that he 
 had knowledge antecedent to; or concurrent with, the inception of the instru- 
 ment, that the assumed agent was then using his name ; that he permitted 
 such use of it ; and that injury has been sustained by the plaintiff in conse- 
 quence of such permission. When such use has been frequent and notorious, 
 slight evidence will be sufficient. Forsyth v. Day, xli. 382. 
 
 23. A principal, whose agent, duly authorized, has completed a purchase 
 of stock for him, cannot repudiate the transaction by reason of any neglect 
 of his agent to inform him of the fact. Haynes v. Eunnewell, xlii. 276. 
 
 24. An agent, authorized to purchase one sixteenth part of a ship at forty 
 dollars a ton, does not bind his principal by purchasing two sixteenths at 
 forty four dollars a ton, one sixteenth being on his own account, unless sub- 
 sequently ratified. Starhird v. Curtis, xliii. 352. 
 
18 AGENCY. 
 
 VI. LIABILITIES OF AGENTS. 
 
 (a) To THEIE PRINCIPALS. 
 
 (b) To THIED PEESONS. 
 
 (a) To their principals. 
 
 25. Where one is employed to purchase a certain horse, and is limited in 
 the price, he cannot make a profit out of the transaction to himself; and 
 whatever money remains in his hands, after paying the price of the horse and 
 deducting the stipulated pay for his services, may be recovered back by an 
 action for money had and received. Bunker v. Miles, xxx. 431. 
 
 26. An agent of another, to sell real estate, must account to the adminis- 
 trator of his principal, on demand, for the proceeds of the sale, or he wiU be 
 liable in damages to the amount for which the property sold, and interest from 
 the time of the demand. Wheeler v. HasMns, xli. 432. 
 
 (b) To third persons. 
 
 27. An agent is liable for misfeazances, to the owner of the property injur- 
 ed, whether he acted by the direction of his principal or not. Richardson v. 
 Kimball, xxviil. 463. 
 
 28. An agent who draws a bill in his own name is personally liable. 
 'Fairfield v. Hancock, xxxit. 93. 
 
 VII. RIGHTS AND REMEDIES OF PRINCIPALS AND AGENTS. 
 
 29. If an agent, acting under the direction of his principal, cuts timber by 
 mistake, partly upon the wrong township, which his principal receives and 
 disposes of, he can recover of his principal what he has been obliged to pay 
 for damages in a suit for that trespass. Drummond v. Humphreys, xxxix. 
 347. 
 
 VIII. FACTORS. 
 
 30. Where the same person is not only master of the vessel, but supercargo, 
 he acts in two distinct characters ; in the one case, a common carrier, in the 
 other a factor. Stone v. Waitt, xxxi. 409. 
 
 See Agency, 17. 
 
 IX. PLEADINGS AND EVIDENCE. 
 
 31. The agency of a witness may be proved by his own oath. Melhuen Co. 
 V. Hayes, xxxiii. 169. Perkins v. Jordan, xxxY. 23. 
 
 32. Where notes were given in payment for logs by the purchaser, and 
 one of the payees gave a receipt for such notes " on account of logs sold by 
 us," such receipt has no tendency to show, that the maker of it was the agent 
 of his joint owners, in the sale of the logs. Gdburn v. Paine, xxxvi. 105. 
 
ALIENATION. — AMENDMENT. 1 9 
 
 AGENT FOR SELLING LIQUORS. 
 See LiQTJOK. 
 
 AGREEMENT IN RESTRAINT OF TRADE. 
 See Bond, 14, 15. 
 
 AID TO AN OFFICER. 
 See AssATJix and Batteet, 1, 2. 
 
 ALIENATION. 
 
 1. The term " alienation," as applied to real estate, lias a technical signifi- 
 cation, and any transfer, short of a conveyance of the title, is not an alienation 
 thereof. Pollard v. Insurance Go. xlii. 221. 
 
 2. A mortgage is not an alienation. Pollard v. Insurance Go. xxil. 221. 
 
 See Instjeance, 2, 21. 
 
 AMENDMENT. 
 
 I. GENERAL PRINCIPLES. 
 
 II. OF WRITS AND DECLARATIONS. 
 
 IIL OF PLEADINGS. 
 
 rV. OF RECORDS, JUDGMENTS AND EXECUTIONS. 
 
 V. OF OFFICER'S RETURNS. 
 
 VI. IN OTHER CASES. 
 
 Vn. EFFECT OF. 
 
 L GENERAL PRINCIPLES. 
 
 1. An amendment of a writ, by striking out of the account annexed, a part 
 of the charges and credits, is within the discretion of the Court, and is not 
 a subject for revision on exceptions. WigM v. Stiles, xxix. 164. 
 
 2. If the Judge rule, as a matter of law, that a specified amendment can- 
 not be allowed, exceptions may be taken. Rowell v. Small, xxx. 30. Her- 
 riclc V. Osborne, xxxix. 231. 
 
20 AMENDMENT. 
 
 3. An original writ, without the seal of the proper court, is defective ; and 
 the defect is not amendable. Witherel v. Randall, xxx. 168. 
 
 4. Sections 11 & 12, c. 115, R. S., 1841, authorize amendments by strik- 
 ing out or inserting names of defendants only. White v. Curtis, xxxv. 534. 
 Woodward v. Ware, xxxYii. 563. 
 
 5. In a suit upon an account, some of the items of which are for spirituous 
 liquors sold in violation of Act of 1846, the plaintiff may amend his bill of 
 particulars, by striking out the items for liquor, and recover on the account as 
 thus amended. Towle v. Blalce, xxxviii. 528. 
 
 See District Coubt, 5. 
 
 II. OF WRITS AND DECLARATIONS. 
 
 6. In an action by one town against another on a count in indebitatus as- 
 sumpsit, on an account annexed for supplies furnished an individual named, 
 an amendment may be made, by alleging specially, such facts as would show 
 a liability of the defendants for the same under the provisions of R. S. of 
 1841, c. 32. Brewer v. E. Machias, xxvii. 489. 
 
 7. The changing of the form of an action from debt to case, is unauthoriz- 
 ed by law and void. Houghton v. Stowell, xxviii. 215. 
 
 8. If the declaration in a writ of entry omit to allege that the demandant 
 had been seized and that the defendant had disseized, an amendment may 
 be allowed to supply the defect. Bowell v. Small, xxx. 30. 
 
 9. In an action on a judgment for flowing, an amendment, stating the time 
 and mode of the acquirement of the defendant's title to the mill and dam, it 
 having been already alleged that the defendant owned and occupied the same, 
 introduces no new cause of action, and is admissible. Knapp v. Clark, 
 xxx. 244. 
 
 10. A declaration may be amended, by striking out the original counts, 
 and inserting others, if the cause of action be the same, and the form of 
 action can be retained. McVicker v. Beedy, xxxi. 314. 
 
 11. Plaintiffs may be allowed to amend their writ by striking out the aver- 
 ment that they were partners in trade. Babcoch v. Fowles, xxxii. 592. 
 
 12. A count in trover, which alleges the property in the plaintiff, and that 
 it came to the defendant's hands by finding, may be amended by adding an 
 allegation of the conversion. Lord v. Pierce, xxxiii. 350. 
 
 13. To a declaration in trespass quare clausum, an amendment, introduc- 
 ing a count in case, alleging the damages to have been consequential, is not 
 allowable. Sawyer v. Goodwin, xxxiv. 419. 
 
 14. In a vrxit of entry for land in fee, the declaration may be so amended 
 as to claim merely a life estate., Howe v. Wildes, xxxiv. 566. 
 
 15. In an action of covenant broken, an omission to allege, in the declara- 
 tion, that the instrument declared upon was under seal, is amendable. Wing 
 V. Chase, xxxv. 260. 
 
 16. Misdescriptions in contracts or judgments in suit, are amendable, at the 
 discretion of the Court as to terms. Gummings v. B. B. Railroad, xxxv. 478. 
 
 17. In trespass quare clausum, an amendment enlarging the plaintiff's 
 close, as described in the declaration, cannot be allowed. Robinson v. 
 Miller, xxxtii. 312. 
 
AMENDMENT. 21 
 
 18. In an action to recover a forfeitui'e for a horse being allowed to go at 
 large -vvitliout a keeper, in the highway or road, the plaintiff may rightfully 
 amend hy striking out "highway or." Thornton v. Townsend, xxxix. 181. 
 
 19. In assumpsit against A. B., as partners, the plaintiff may amend, 
 under R. S. of 1841, c. 115, § 11, by discontinuing as to one, on payment of 
 his costs, and take judgment against the other alone. Gutts v. Eaynes, xli. 
 560. 
 
 See Abatement, 23. 
 
 HI. OF PLEADINGS. 
 
 20. After a case has gone to the fuU Court on report, a motion to amend 
 the pleadings for the purpose of introducing a new matter of defence, will 
 not be granted, if the proposed defence would not be a valid one. Hardy v. 
 Nelson, XXVII. 525. 
 
 21. The granting of amendments in the pleadings which form an issue of 
 fact for the jury, in a trustee process, is at the judicial discretion of the Court. 
 Butman v. JSohhs, xxxv. 227. 
 
 22. In a petition for partition, if an issue is presented as to a piece of land, 
 and the presiding Judge is unable to determine whether it is included in the 
 petition or not, he may authorize ' such an amendment or variance of the 
 pleadings, as will prevent the jury from finding an immaterial issue ; and that, 
 too, without terms. Ham v. Ham, xxxvii. 261. 
 
 IV. OF RECORDS, JUDGMENTS AND EXECUTIONS. 
 
 23. It is the duty of a magistrate, who has certified his record in an incom- 
 plete form, to complete the record and the certificate accordingly. State v. 
 Maker, xxxv. 225. 
 
 24. No lapse of time wiU divest a court of record of its power to correct 
 its record, rendered incomplete through the mistake of its clerk. Lewis v. 
 " XXXVII. 230. 
 
 25. Where the record omits to state, that a committee appointed by the S. 
 J. Court, to report upon the doings of County Commissioners, were disinter- 
 ested men, the defect may be amended. Smith v. County Commissioners, 
 xiii. 395. 
 
 V. OF OFFICER'S RETURNS. 
 
 26. Amendments of his return of a sale of the estate, right, &c. mention- 
 ed in the Act of 1829, c. 431, on execution, may be made by an officer, by 
 leave of the Court, no rights of third persons intervening, if before they were 
 made, the party, in looking at the return as it was, could not have misunder- 
 stood, that the proceedings by the officer had been substantially what the 
 amended return shows them to have been. Whittieer v. Vauqhan, xxtii. 
 301. ^ 
 
 27. An omission by an officer, to affix his signature to the return of a sale 
 of property on executi6n, may be amended on proof to the Court, that the re- 
 turn IS according to the truth. Wilton Manuf'g Go. v. Butler, xxxiv. 431. 
 
22 APPEAL. 
 
 VI. IN OTHER CASES. 
 
 28. Where a' petition for a review of the judgment and proceedings on a 
 petition for partition has been presented in the name of one as guardian, and 
 in behalf of certain minors, and notice has been ordered thereon, and the 
 opposing party has appeared, it cannot be amended so as to make the minors 
 the petitioners by such person as their guardian. Elwell v. Sylvester, xxtii. 
 536. 
 
 29. In a bill in equity to redeem mortgaged premises, it being the aim of 
 courts of equity to make a final adjustment of the rights of all persons interest- 
 ed in the subject matter, plaintiff may amend by making interested persons 
 parties, upon such terms as the court may designate. Bailey v. Myrick, 
 xxxTi. 50. Haskell v. Hilton, xxx. 419. 
 
 30. It is unusual to allow an amendment to the defendant's answer to a bill 
 in equity ; and such an amendment wiU not be allowed, if it introduce a new 
 ground of defence, existing and known to the defendant, when his answer was 
 filed. Howe v. Russell, xxxvi. 115. 
 
 31. When a bUl in equity does not comply with the rule of court, by being 
 set forth "clearly, succinctly," &c., the cause cannot proceed; but amend- 
 ments may be allowed on terms. Boynton v. Brastow, xxxtiii. 577. 
 
 Vn. EFFECT OF AMENDMENTS. 
 
 32. In an action of assumpsit, if another person be made a co-plaintiff, by 
 amendment of the writ by leave of court, the attachment of property upon 
 the writ is thereby dissolved. Moulton v. Ghapin, xxyiii. 505. 
 
 33. When an amendment has been properly made, and is for the same 
 cause of action originally embraced in the writ, the amended writ is treated 
 as it would have been if so made when the suit was commenced ; notwith- 
 standing the amendment was not filed till the action would have been barred 
 by the statute of limitations. Heath v. Whidden, xxix. 108. 
 
 APPEAL. 
 
 I. EST WHAT CASES AN APPEAL LIES. 
 n. SECURITY TO PROSECUTE AN APPEAL. 
 
 m. EFFECT OF AN APPEAL, AND PROCEEDINGS IN THE COURT 
 ABOVE. 
 
 For appeals from Prolate Gourt. See Peobate Cotjet. 
 
 L IN WHAT CASES AN APPEAL LIES. 
 
 1 . No appeal lies from a judgment rendered by default before a justice of 
 the peace. Harris v. Hutchins, xxviri. 102. Turner v. Putnam, xxxi. 
 557. 
 
 2. Where the pleadings are closed by a demurrer and joinder, in an action 
 before a justice of the peace, and the action is carried by appeal to the Dis- 
 
APPEAL. 23 
 
 trict Court, no appeal lies from the decision of that Court, upon the same 
 pleadings, to the S. J. Court. Putnam v. Oliver, xxviii. 442. 
 
 3. An action, commenced before a justice of the peace, cannot be brought 
 into this Court by an appeal from the District Court on a demurrer in law, or 
 agreed facts. Holt v. Barrett, xxix. 76. English v. Sprague, xxxil. 243. 
 Giles V. Vigereaux, xxxii. 565. Boberts v. 0' Conner, xxxiii. 496. 
 
 4. There is no right of appeal to the District Court from a joint decision ' 
 of the County Commissioners of two or more counties. Banks, appellant, &c. 
 XXIX. 288. 
 
 5. An appeal can be taken in all cases from a judgment of a justice of the 
 peace, when the judgment is a final decision of the action, and not merely 
 interlocutory. It cannot be taken from a judgment of respondeas ouster. 
 Waterville v. Howard, xxx. 103. 
 
 6. If the assessors of a town, through an error in judgment, make an over- 
 valuation of one's property, and thereby assess an inhabitant of a town too 
 much, or tax him for property not belonging to him, his remedy is by appeal 
 to the County Commissioners only. Stickney v. Bangor, xxx. 404. 
 
 7. It is not necessary that a justice of the peace wait forty-eight hours to 
 give opportunity of appeal, under the Act of 1846, c. 205; but an appeal 
 may be taken after commitment. Bicker, petitioner, xxxii. 37. 
 
 8. In actions of trespass quare clausum, originating before a justice of the 
 peace, no appeal lies from the District Court, except in cases where title to 
 land was pleaded before the justice. Moore v. Dunlap, xxxiii. 227. 
 
 9. In scire facias upon a recognizance for the appearance of a person charged 
 with crime, no appeal lies for the State, from the judgment of the District Court, 
 sustaining a demurrer to the scire facias. State v. Jackson, xxxiii. 259. 
 
 n. SECURITY TO PROSECUTE AN APPEAL. 
 
 10. To entitle a party to an appeal in a criminal prosecution, nothing 
 more can rightfully be required than reasonable security for the appearance 
 of the appellant, and the prosecution of the appeal. State v. Gurney, 
 xxxTii. 156. 
 
 11. An appeal from the judgment of a justice, without a recognizance by 
 the party appealing, is nugatory and void. Dolloff v. Hariwell, xxxviii. 54. 
 
 m. EFFECT OF AN APPEAL, AND PROCEEDINGS IN THE COURT 
 ABOVE. 
 
 12. An appeal from the doings of County Commissioners, opens to the 
 consideration of the committee, the whole question which was before the 
 County Commissioners. Winslow v. Go. Gomm'rs, xxxi. 444. 
 
 13. On appeal from the judge of probate, the facts and all matters of mere 
 discretion are to be determined by the Judge, sitting at Nisi Prius, whose 
 judgment thereon is final. Grocker v. Crocker, xliii. 561. 
 
 14. If, upon facts found by him, a question of law arises, his decision is 
 subject to exceptions to be heard by the Court in banc. Where no excep- 
 tions have been taken to any ruling of the presiding Judge, the case is not 
 properly before the Court. Grocker v. Grocker, xliii. 561. 
 
 See Costs, 32. 
 
24 AQUATIC RIGHTS. 
 
 APPROPRIATION OF PAYMENTS. 
 See Payment, 25 — 36. 
 
 AQUATIC RIGHTS. 
 
 1 . The rule of the common law, that riparian proprietors own to the thread 
 of fresh water rivers, has been adopted in this State. Brown v. Ghadbourne, 
 XXXI. 9. 
 
 2. A stream, which, in its natural condition, is capable of being commonly 
 and generally useful for floating boats, rafts or logs, for any useful purpose of 
 agriculture or trade, though it be private property, and not strictly navigable, 
 is subject to the public use, as a passage way. Brown v. Ghadbourne, xxxi. 
 9. Treat v. Lord, xlii. 552. 
 
 3. Though the adaptation of the stream to such use may not be continuous 
 at all seasons, and in all its conditions, yet the public right attaches, and 
 may be exercised whenever opportunities occur. Brown v. Ghadbourne, 
 XXXI. 9. 
 
 4. When a stream is inherently, and in its nature, capable of being used 
 for the purposes of commerce, for the floating of vessels, boats, rafts or logs, 
 the public easement exists, notwithstanding it may be necessary for persons 
 floating logs thereon, to use its banks. Brown v. Ghadbourne, xxxi. 9. 
 Treat v. Lord, xiii. 552. 
 
 5. Where the proprietor of such a stream, by means of a dam and an 
 accumulation of his logs above the dam, has, under claim of a right to control 
 the stream, designedly obstructed the running of the plaintiff's logs, and re- 
 fused to make any provision for the passage of them, the plaintiff is justified 
 in booming defendant's logs, repairing and opening the proprietor's sluices, 
 for that purpose ; provided that that be the mode of efi'ecting the object, least 
 detrimental to the proprietor. Brown v. Ghadbourne, xxxi. 9. 
 
 6. In a suit against the proprietor for such injury, the plaintiff may recover 
 for the damage, and, among the items, the expenses of booming the defend- 
 ant's logs, and of repairing his sluices. Brown v. Ghadbourne, xxxi. 9. 
 
 7. All the citizens of a country, by the common law, have an inherent right 
 in common to navigate its navigable tide waters, fresh water rivers and lakes, 
 of which they cannot be deprived by the government. Moor v. Veazie, xxxii. 
 343. 
 
 8. The common law accorded to the sovereign power, the " care, super- 
 vision and protection" of this commpn right. And the power which has the 
 " care, supervision and protection" of a common right, is bound to regulate 
 its use in such manner, that it may be safe and convenient ; which includes 
 the right to remove obstructions, to improve, or to render more safe and con- 
 venient the waters for the purposes of navigation. Moor v. Veazie, xxxii. 
 343. 
 
 9. To render the common right more beneficial, the State may encourage 
 new modes of navigation, and, for that purpose, may grant an exclusive use, 
 for a term of years, of the waters in the new mode, as a compensation for the 
 skill, expense and risk required for its introduction. Moor v. Veazie, xxxil. 
 343. 
 
ARBITRATION. 25 
 
 10. No accidental or intentional obstruction in a stream, not there in its 
 natural state, will legally take from it its inherent and natural capability as a 
 public highway. Treat v. Lord, XLii. 552. Brown v. Black, xiiii. 443. 
 
 1 1 . Streams, which are so small and shoal that no logs can be driven in 
 them without being propelled by persons traveling on their banks, are not nav- 
 igable in any sense to give the public a right of way in them. Treat v. Lord, 
 XLii. 552. Brown v. Blade, XLiii. 443. 
 
 12. A bridge across a navigable river, may not necessarily be an obstruc- 
 tion to navigation, and if it can reasonably be so constructed as not to inter- 
 fere with navigation, it should be so done. State v. Freeport, XMii. 198. 
 
 See Bridges. 
 
 ARBITRATION. 
 
 I. SUBMISSION. 
 
 II. AUTHORITY AND DUTY OF THE ARBITRATORS. 
 
 III. AWARD. 
 
 IV. EFFECT OF AN AWARD, AND HOW ENFORCED OR AVOIDED. 
 
 I. SUBMISSION. 
 
 l._ Consent of parties cannot confer upon the S. J. Court the power to 
 receive and accept an award of referees, made under a submission entered 
 into before a justice of the peace according to R. S. of 1841. Sargent v. 
 Hampden, xxix. 70. 
 
 2. If a submission before a justice be made of all demands arising between 
 the parties after a specified day, a specification of the claims must be annexed 
 to the submission. Such specification is dispensed with only when all de- 
 mands are submitted. Fierce v. Pierce, xxx. 113. 
 
 3. Where two arbitrators are selected, who are to choose a third in case of 
 disagreement, and such third referee is selected, but not in writing, and the 
 parties acquiesce by submitting questions to the three, it is too late afterwards 
 to object to the competency of such third referee. Knowlton v. Homer 
 xxx. 552. ' 
 
 4. If it appear by the submission to have been the intention of the parties 
 that a decision by a majority of the referees shall be binding, it is not neces- 
 sary that the three shaU sign the award. Knowlton v. Homer, xxx. 552. 
 
 5. It is competent for parties to submit matters in dispute between them 
 to arbitrators, and to confer on those arbitrators such powers as thev may 
 deem proper, provided they do not violate any rule of law. Anderson t 
 iarnham, xxxiv. 161. Gushing v. Babcock, xxxviii. 452. 
 
 6. Administrators have authority to submit to referees any controverted 
 claims, affecting the estates under their care. Kendall v. Bates, xxxv. 357. 
 
 7. To a submission "of all demands except heirship," entered into bv 
 S,' l'^''''\'"}'>'^ there existed no controversy respecting inherited 
 estates, no specific demand need be annexed, inasmuch as the words " except 
 heu-ship are moperative. Kendall v. Bates, xxxv. 357. 
 
 4 
 
26 AEBITRATION. 
 
 8. A submission to referees under the statute, is one of the modes pro- 
 vided by law for the decision of causes ; and the course of proceedings upon 
 such a submission may be altered at the pleasure of the Legislature ; such an 
 alteration merely affecting the remedy, without imparing the obligation of any 
 contract. Kendall v. Lewiston W. P. Co., xxxvi. 19. 
 
 9. Where the parties to a suit pending in Court, agree in writing to refer 
 it, with stipulations that it shall be withdrawn, each party paying his own 
 cost ; if one of the referees declines to act, the agreement becomes inopera- 
 tive. And whether one of the referees refused to act, may properly be left to 
 the determination of the jury. Chapman v. Seecomb, xxxvi. 102. 
 
 10. Where no time is fixed in which arbitrators are to make an award, it 
 is to be done at their pleasure, unless either of the parties specially request 
 them to make it in a reasonable time, and in case of refusal revoke the 
 submission. Small v. Thurlow, xxxvii. 504. 
 
 11. When a matter has been referred to arbitrators, and they have the 
 power to add another to their number, on a refusal to make an award, the 
 matter referred cannot be withdrawn from their jurisdiction, unless they have 
 refused to appoint the other referee, or have been requested so to do. Small 
 v. Thurlow, XXXVII. 504. 
 
 12. A submission of a claim to referees, without any award thereon, does 
 not change the nature of the claim or the liabilities of the parties. Stoddard 
 V. Oage, xli. 287. 
 
 13. A statute submission is an independent proceeding, having no relation 
 to the original action ; it requires another entry, and is the subject matter of 
 an independent judgment and execution. Grooher v. Buck, xii. 355 
 
 See Abatement, 15. 
 Reeekee. 
 
 II. AUTHORITY AND DUTY OF THE ARBITRATORS. 
 
 14. Where this and several other suits were referred to the same referees 
 by separate rules of reference, without including any other matter, in all 
 which the plaintiff was a party, but one of the defendants was not a party in 
 any but this ; and the referees met and heard all the cases at the same time, 
 and the parties agreed, that the testimony of the numerous witnesses might 
 be considered as applicable to each suit ; and the referees, in making their 
 separate reports, included their own charges for services in all the suits and 
 aE. the other expenses of the references in their report as costs of this suit, 
 and no part thereof in either of the other suits ; — Held, that the referees had 
 exceeded their authority in including expenses incurred in other suits, and 
 that the report, therefore, could not be accepted ; but, that although' the 
 referees erred in judgment, yet, as it did not appear that they were influenced 
 by improper motives, the report should be re-committed, under the authority 
 given by the Act of 1845, c. 168. Hewett v. Bowley, xxvii. 125. 
 
 15. A referee, appointed under chapter 138, may, by an alternative award, 
 present legal questions for the consideration of the Court ; but such an award 
 must report, not the testimony from which the facts are to be found, _ but the 
 facta themselves, as found. Barnard v. Spofford, xxxi. 39. Kempton v. 
 
 Stewart, xxxi. 566. 
 
 16. Neither the law nor the consent of parties, confers upon the Court the 
 right of adjudication upon testimony, heard and reported by a referee, without 
 the aid of a jury. Barnard v. Spofford, xxxi. 39. 
 
ARBITRATION. 27 
 
 17. A submission by parties who had been co-partners, of all demands of 
 every description, whether arising out of their business as partners or out of 
 any other transactions, does not authorize the referees to adjudicate upon the 
 property or debts due to the partnership. Hayes v. Forskoll, xxxi. 112. 
 
 18. If an action be referred by a rule of Court, which contains no restric- 
 tion upon the powers of the referee, his award upon the law, as well as 
 upon the facts, is conclusive. Brown v. Clay, xxxi. 518. Whitmore v. 
 LeBallister, xxxv. 488. Gushing v. Bahcock, xxxviii. 452. Sweetsir v. 
 Kenney, xxxii. 464. Smith v. Oorman, xii. 405. 
 
 19. The construction of a contract by referees, appointed under a submis- 
 sion at common law, to settle the dispute in relation to that construction, is 
 not re-examinable in this Court. 
 
 Thus, the plaintiffs contracted with the defendants to construct for them a 
 railroad, the defendants reserving the right to alter the line or the gradients 
 of the road, without the allowance of any extra compensation, if the engineer 
 should judge such alterations necessary or expedient. Alterations were ac- 
 cordingly made, involving a large increase of expense ; for which increase of 
 expense, the referees allowed compensation to the conti-actors ; — 
 
 And where defendants reserved the right to substitute piling instead of 
 embankment, on a specified part of the road, and the substitution was made 
 at an increased expense, for which the referees allowed a compensation ; — 
 
 And where the submission stipulated, that the referees should take the 
 contract, " as the basis for a settlement," and the contract required that a 
 fixed proportion of the cost of the road should be paid to the contractors in 
 the stock of the company ; and the referees, having ascertained the amount 
 of that proportion, awarded that certificates for the same should be issued to 
 the contractors ; — Held, that in these several parts of their award, the referees 
 did not transcend their authority. Porter v. B. B. Railroad, xxxii. 539. 
 
 20. It is not within the province of the referees to award costs, unless so 
 authorized by the submission. Barter v. B. B. Railroad, xxxii. 539. 
 
 21. If, during the pendency of a suit, the parties submit it and " aU de- 
 mands between them," by rule of court, the referees have authority, if the 
 question be presented to them, to award that one of the parties shall convey 
 to the other, real estate, the ownership of which had been in dispute between 
 them. Buck v. Spofford, xxxv. 526. 
 
 22. A submission between co-tenants of a vessel, " concerning her earn- 
 ings^ and expenses," does not authorize the referees to allow moneys paid or 
 received for insurance. Sawyer v. Freeman, xxxv. 542. 
 
 23. "Where an Act for the division of a town and the incorporation of a 
 new one, authorized the Commissioners of the county to appoint a committee 
 to determine the value of certain property named, and any other property of 
 the town not provided for, with " full power to settle any difierences regard- 
 ing the town property," and also " to determine all privileges and bui-dens, that 
 justice may be done between said towns f — Seld, that the committee had no 
 power to decide respecting the support or settlement of paupers. Holden v. 
 Brewer, xxxviii. 472. 
 
 24. A rule- of court submitting to an arbitrator an action of replevin and 
 aU suits, claims and demands of the parties, with an agreement " that the 
 referee shall treat this action as if it were assumpsit, and award accordingly, 
 and no objection shaU be made to the award," wiU authorize him to award a 
 specific sum in damages. Merrill v. Gardner, xl. 232. 
 
 25. Referees may receive or reject testimony, which, at common law, would 
 be madmissible. Smith v. Gorman, xli. 405. 
 
28 ARBITRATION. 
 
 III. OF THE AWARD. 
 
 (a) Validity. 
 
 (b) A-WARD RESPECTING COSTS. 
 
 (c) Construction. 
 
 (d) Returning to court, and action thereon. 
 
 (a) Validity of an aiuard. 
 
 26. If it appear, by the submission, to have been the intention of the 
 parties, that a decision by a majority of the referees shall be binding, it is not 
 necessary that the three shall sign the award. Knowlton v. Homer, xxx. 552. 
 
 27. Where two referees, after having heard the evidence, are unable to 
 agree, and, according to the submission, select a third person, who expresses 
 no desire to hear the witnesses, but takes the testimony from the other 
 referees, they not diifering in regard to the facts stated by witnesses, and 
 neither of the parties express a wish that such third referee should hear the 
 witnesses, an objection that he did not hear the testimony, cannot be taken 
 to the award. Knowlton v. Homer, xxx. 552. 
 
 28. The one, who alleges that all matters in controversy have not been 
 decided, must make it appear, that such matters were made known to th,e 
 referees, and that they have not been decided. Hayes v. Forskoll, xxxi. 
 112. 
 
 29. It is not essential to the validity of an award, that it should contain a 
 statement of the referees' fees, though it might perhaps be ground for re- 
 commitment. Smith V. Smith, xxxii. 23. 
 
 30. It is well settled, that an award, good in part and bad in part, may be 
 sustained as to that part which is good, unless so connected, that they cannot 
 be separated. Porter v. B. B. Bailroad, xxxii. 539. Boynton v. Frye, 
 XXXIII. 216. Sawyer v. Freeman, xxxv. 542. Merrill v. Gardiner, XL. 
 232. Hanson v. Wehher, xl. 194. Orcutt v. Butler, xlii. 83. 
 
 31. An award by referees in favor of the demandant, in a real action, upon 
 a submission by rule of Court, entered into by the administrator after the 
 death of the tenant, and before the heirs were notified or appeared, cannot be 
 accepted. The reference must be considered void. Bridgham v. Prince, 
 xxxiii. 174. 
 
 32. In an action referred by rule of Court to three referees, " the award of 
 whom to be final," an award signed by two of them only, cannot be accepted, 
 although they certify that the other acted with them in hearing the parties. 
 Anderson v. Farnham, xxxiT. 161. 
 
 33. Where the record and the rule of reference state, that the referee " is 
 to decide this action on legal principles and establish the line between the 
 parties," the law as well as the facts is thereby submitted to his decision. 
 And the establishment of the divisional line by such referee is not in contra- 
 vention of the statute of frauds, although, previous to the docket entry of the 
 submission, no agreement had been made in writing to refer the matter. 
 Sweeny v. Miller, xxxiT. 388. 
 
 34. To the validity of an award, founded upon a common law submission 
 to three persons, to abide the determination of any two of them, it is essen- 
 tial that aU three be present at the hearing ; and that all were thus present, is 
 sufficiently evidenced by a statement of that fact contained in the award, al- 
 though it be signed by only two. Thompson v. Mitchell, xxxv. 281. 
 
 35. A provision in the submission, that the award should be "made and 
 published in writing," only requires that the referees make an award in writ- 
 
ARBITRATION. 29 
 
 ing, and that the parties should be enabled to obtain a knowledge of it thus 
 made. Thompson v. Mitchell, xxxv. 281. 
 
 35. A report of referees must be made to the court when holden for the or- 
 dinary business of a session of the same, within one year from the time of 
 the submission, to meet the requirement of c. 138, K. S., 1841. Field v. 
 Bissell, XXXVI. 593. 
 
 36. To make an award upon a parol submission binding, it must be proved 
 that the parties mutually and concurrently agreed to abide by it. Houghton 
 V. Houghton, xxxvii. 72. 
 
 37. What words were used in making such agreement, and the meaning 
 attached to them by the parties, as it may be gathered from the circumstances 
 attending their utterance, are to be determined by the jury. Houghton v. 
 Houghton, xxxvii. 72. 
 
 38. "Where the amount of damages in a suit pending, with other matters 
 between the parties, is submitted to arbitrators, their award of the amount 
 for which the defendant shall be defaulted is admissible in evidence upon the 
 trial, and by that award the parties are bound. Gushing v. BabcocJc, 
 XXXVIII. 452. 
 
 39. Where an award settles the title to property, and the other claimants 
 are to receive their just proportions of its value, no objection can be made 
 to it for want of mutuality. Hanson v. Webher, xi. 194. 
 
 40. Nor is an alternative mode of payment therein set forth, conferring a 
 privilege upon the party, if he should choose to accept it, but otherwise to 
 pay a sum certain, any objection to the validity of an award. Hanson v. 
 Webber, XL. 194. 
 
 41. A judgment on an award, founded on a submission containing a stipu- 
 lation that the referee shall treat the action as if it were assumpsit, (it being 
 replevin,) may be entered and upheld, although the arbitrator also award a 
 lien upon the property replevied to secure the payment of the damages and 
 costs. Merrill v. Gardner, xi. 232. 
 
 42. A recommendation to pay a certain amount is not an award. Stoddard 
 V. Gage, XLi. 287. 
 
 43. The examination of a book of accounts by one referee in company with 
 one who obtained the award, after a full hearing of evidence and argument, 
 in order to test the accuracy o{ an account transcribed by a witness, is not 
 an ex parte hearing ; and, in the absence of all proof of misconduct, partiality 
 or fraud, does not affect the award. Small v. Trichey, xli. 507 
 
 (b) Award respecting costs. 
 
 44. It is not within the province of referees to award costs, unless so 
 authorized by the submission. Porter v. B. B. Bailroad, xxxii. 539. 
 Hanson v. Webber, xl. 194. 
 
 (c) Construction. 
 
 45. Where, in a submission, the parties have inserted a condition, that the 
 referee should report the facts, for the consideration of the Court, a report of 
 the evidence is not sufficient. Barnard v. Spofford, xxxi. 39. ' 
 
 46. Where an award is made for the payment of money unconditionally, 
 
30 ARBITRATION. 
 
 the party becomes liable to pay upon publication of the award, according to 
 its terms, without any demand. Thompson v. Mitchell, xxxv. 281. 
 
 47. In an award, founded upon a submission of " aU demands," a state- 
 ment that the award is in full of " all accounts" to them submitted, must be 
 understood as meaning " in full of aU demands" to them submitted. Kendall 
 V. Bates, XXXV. 357. 
 
 48. Neither a written submission nor an award can be explained or varied 
 by parol testimony ; but a party may identify, by parol, the controverted mat- 
 ters laid before, and acted upon by, the referees. Buck v. Spofford, xxxv. 
 526. 
 
 49. Awards are qot to be scanned with critical nicety, as they are made 
 by judges of the parties' own choosing ; they are to be construed liberally and 
 favorably, so that they may take their effect, rather than be defeated. San- 
 son V. Webber, xL. 194. 
 
 50. Where a submission is of divers subjects, distinctly enumerated, if it 
 appear from the whole award, that all the matters submitted have been adju- 
 dicated upon, it is sufficient, though each particular is not specified in the 
 award. Hanson v. Webber, XL. 194. 
 
 51. Thus an award, under a submission as to the ownership of a yoke of 
 cattle, in which three persons claimed separate interests, that one of them 
 should pay a sum of money to each of the others, is sufficient evidence that 
 the ownership of the oxen is adjudged to be in him who is to pay the money. 
 Hanson v. Webber, XL. 194. 
 
 52. Objection was taken to the award of referees, that the submission was, 
 in fact, to the committee of the Board of Trade of Portland, and that their 
 action should have been governed by the constitution and by-laws of that 
 board, which it was not. In the submission they were named as individuals ; 
 but in their report, they styled themselves " the committee of arbitration of 
 the Board of Trade of the city of Portland;" — Held, that the submission 
 was to the persons named, in their individual character ;, and that no objection 
 having been taken to their mode of proceeding, their decision is conclusive. 
 Stewart v. Waldron, xli. 486. 
 
 53. An award, that A. was entitled to the " crops raised on said B's place," 
 the last season, and that he was to have the " privilege" of taking them off, 
 refers to annual crops ; and A. is entitled to a reasonable time, within the 
 year, in which to remove them. Orcutt v. Butler, xlii. 83. 
 
 (d) Beturning to court, and action thereon. 
 
 54. The one who alleges that all matters in controversy have not been 
 decided, must make it appear, that such matters were made known to the 
 referees, and that they have not been decided. Hayes v. Forsholl, xxxi. 
 112. 
 
 , 55. Where a referee submitted, in an alternative award, not the facts, but 
 the evidence, the award was recommitted. Kempton v. Stewart, xxxi. 566. 
 
 56. On motion to reject an award of referees, the affidavit of the defend- 
 ant is not evidence that he was fraudulently induced to enter into the submis- 
 sion. Smith V. Smith, xxxii. 23. 
 
 57. An award, omitting a statement of the referees' fees, may, perhaps, be 
 recommitted for that reason. Smith v. Smith, xxxii. 23. 
 
ARBITRATION. 31 
 
 58. Upon motion to accept an award of referees, the onus is upon the 
 opposing party to impeach it ; and in the absence of such impeachment, the 
 award will be accepted. Atkinson v. Crooker, xxxv. 135. 
 
 59. An award, which had been recommitted for correction in form only, 
 may be returned in a new draft. And the presumption in such case is, that 
 the referees conformed to the direction of the court. Atkinson v. Crooker, 
 xxxv. 135. 
 
 60. Upon the abolishment of the District Court, awards, which had been 
 made returnable to that Court, might be returned to this Court, at any term 
 prior to the period limited in the submission. Kendall v. Lewiston W. P. 
 Co., XXXVI. 19. . 
 
 61. Interest on the amount awarded by referees cannot be included in the 
 judgment upon the award. Kendall v. Lewiston W. P. Co., xxxvi. 19. 
 
 62. The discretionary power of the court, to accept, reject, or recommit a 
 report of referees, is oidy a judicial one, to be exercised upon consideration 
 of the facts and circumstances of the case. Long v. Rhodes, xxxvi. 108. 
 
 63. Where no new evidence is offered, and no prejudice, bias or mistake, 
 on the part of referees established, their award must.be accepted. Long 
 V. Rhodes, XXXVI. 108. 
 
 64. When a report of referees is made after the period limited in the sub- 
 mission, though it has been recommitted to the referees by the presiding 
 judge, for want of sufficient notice to one of the parties, it is inoperative ; 
 and the recommitment will not give the referees subsequent jurisdiction. 
 Field V. Bissell, xxxvi. 593. 
 
 65. No exception to the misjoinder of parties can be taken advantage of 
 on the acceptance of the report, unless the objection is specially set forth and 
 submitted to the court. Smith v. Gorman, xli. 405. 
 
 66. It is within the discretion of the presiding judge to grant delay, on 
 the acceptance of the report of referees. Smith v. Gorman, xli. 405. 
 
 rv. EFFECT OF AN AWARD, AND HOW ENFORCED OR AVOIDED. 
 
 67. A judgment upon a report of referees, who have adjudicated matters 
 legally submitted to their determination, is' equally valid as when founded 
 upon a verdict. Pease v. Whitten, xxxi. 117. • 
 
 68. An award of referees upon a parol submission, is of no eifect against 
 a party, who had no notice of the time or place of their meeting, or of the 
 decision which they made. Cobb v. Wood, xxxii. 455. 
 
 69. An action pending in court, is discontinued by a submission of it at 
 common law. Mooers v. Allen, xxxv. 276. Crooker v. Buck, xli. 355. 
 
 70. When referees have fully heard the parties ; have made up and signed 
 their award ; and have communicated its contents to the parties, their duties 
 are closed ; and they have no power to alter it or to destroy its effect by a 
 refusal to deliver it, or by an attempt to recall it. Thompson v. Mitchell, 
 xxxv. 281. 
 
 71. An acceptance of an award that one of the parties shall convey to the 
 other real estate, the ownership of which had been in dispute between them, 
 constitutes a valid judgment. Buck v. Spofford, xxxv. 526. 
 
 72. A party, in whose favor an award is made under a rule of court, is 
 entitled to a judgment thereon, notwithstanding his creditor may have attached 
 
32 ARREST. 
 
 the same, after the acceptance of the award, by a trustee process. Holt v. 
 Kvrby, xxxix. 164. 
 
 73. Whether a statute submission operates as a discontinuance of the 
 pending suit, either before or after judgment thereon, qucere. Grooher v. 
 BikIc, xli. 355. 
 
 74. No valid judgment can be rendered on the report of referees in a 
 statute submission, except by consent, without allowing to the aggrieved 
 party the time prescribed by statute, in which to present exceptions. Grooher 
 V. Buck, XLI. 355. 
 
 ARREST. 
 
 1. To authorize the arrest of the body under R. S., 1841, c. 148, § 2, the 
 certificate must set forth that the debtor has or owns property or means 
 exceeding the amount required for his own immediate support, and that he is 
 about to take with him such property or means, and reside beyond the limits 
 of the State. Branhall v. Seavey, xxviii. 45. Furlish v. Boherts, xxxix. 
 104. Shaw V. Usher, xli. 102. 
 
 2. The certificate for arrest on mesne process must be made before a 
 magistrate of this State. Bramhall v. Seavey, xxtiii. 45. 
 
 3. In an affidavit to justify the arrest of joint debtors on mesne process, it 
 is not necessary to allege the belief that each one is about to depart, &c. 
 An allegation that they are about to do it, is sufficient. Gates v. Nolle, 
 xxxiii. 258. 
 
 4. An arrest on mesne process, upon contract, is allowed only where the 
 creditor, his agent or attorney, shall have previously made oath for the pur- 
 pose, according to the requirements of R. S., c. 148, § 2, 1841. Hence, 
 unless it show that the debtor was " about to depart and' reside beyond the 
 limits of the State;" — and to "take with him property or means exceeding 
 the amount required for his own immediate support;" — and that the sum 
 due the plaintiff amounted to " at least ten dollars," it is insufficient. Saw- 
 telle V. Jewell, xxxiv. 543. 
 
 5. It seems, that by the common law an officer has authority to make an 
 arrest upon reasonable ground of suspicion, without warrant ; and if his 
 suspicions vanish he may discharge the person arrested without bringing him 
 before a magistrate. But he cannot lawfully detain him without warrant any 
 longer than a reasonable time for bringing him before a magistrate. Burke 
 v. Bell, xxxYi. 317. 
 
 6. An attachment of property and an arrest of the body are unauthorized 
 by the same -svrit. And when a return of an attachment has been made upon 
 the ■vvrit, the officer cannot justify a subsequent arrest of the defendant, by 
 showing that the defendant did not own the property attached, or that the 
 attachment was ineffectual. Trafton v. Gardner, xxxix. 501. 
 
 See Ori-icEB, 39, 40, 41. 
 
ASSAULT AND BATTERY.— ASSESSORS. 33 
 
 ARREST OF JUDGMENT. 
 
 See Judgment. 
 
 ASSAULT AND BATTERY. 
 
 1. The force which an officer or his aid may apply, to .enable them to serve 
 a legal precept, must be no greater than is necessary for the accomplishment 
 of that purpose. Murdoch v. Ripley, xxxv. 472. 
 
 2. It is for the jury to -decide whether the degree of force used in such 
 case, was unnecessary ; hence, his own judgment, though honestly formed, 
 and though he had no purpose to transcend his authority, is not conclusive as 
 to the degree of force which was necessary ; and for any excess he is respon- 
 sible in damages in a suit at law. And though the plaintiff's resistance 
 contributed to the injury, that resistance would not justify unnecessary vio- 
 lence. Murdoch v. Ripley, xxxv. 472. 
 
 3. In R. S., c. 154, § 29, the Legislature have recognized as distinct 
 offences, an assault with intent to murder, and an assault with intent to kiU, 
 unknown to the common law, the former being the greater crime and in- 
 cluding the latter. And where a party is accused of the greater, the jury 
 are authorized to find him guilty of the lesser offence. State v. Waters, 
 XXXIX. 54. 
 
 ASSESSORS. 
 
 1. By c. 14, § 56, as amended, the assessors of a town, who are required 
 to assess a tax upon a school district, are exempted from any personal liability, 
 when they act with faithfulnes? and integrity; and any further liability is to 
 rest solely upon the district. Powers v. Sanford, xxxix. 183. Trim v. 
 Charleston, xii. 504. 
 
 2. An oath, taken by assessors, that they will "faithfully and impartially 
 perform the duties assigned them," answers the requirement of the statute. 
 Patterson v. Oreighton, xlii. 367. 
 
 3. Assessors are required by statute, to ascertain from the lists of high- 
 way surveyors of the preceding year, who had not discharged their highway 
 taxes for that year, and to place the amounts found due from such persons 
 in a separate column of the money tax assessed by themselves. Patterson v. 
 Creighton, xlii. 367. 
 
 4. "A list of the persons and the sums" required by statute to be 
 delivered by the assessors to highway surveyors, may not properly be denomi- 
 nated a warrant. Patterson v. Creighton, xlii. 367, 
 
 5. Assessors, in the assessment of a tax, are liable only for "personal 
 faithfulness or integrity." Patterson v. Creighton, xlii. 367. 
 
34 ASSIGNMENT. 
 
 6. R. S. of 1841, c. 14, § 56, affords no protection to assessors in assess- 
 ing a tax which they were not obliged by law to assess; e. g., in assessing a 
 tax against an inhabitant of another town. Herrinan v. Slower s, xliii. 
 497. 
 
 ASSIGNMENT. 
 
 I. OF CHOSES IN ACTION AND OTHER RIGHTS. 
 II. EFFECT OF AN ASSIGNMENT OF A CHOSE IN ACTION. 
 III. ASSIGNMENT FOR THE BENEFIT OF CREDITORS." 
 
 I. ASSIGNMENT OF CHOSES IN ACTION, AND OTHER EIGHTS. 
 
 1. The interest of a mortgagee of land cannot, at law, pass to a third per- 
 son, without an assignment, in some form, in writing, under seal, although the 
 contract secured by the mortgage has been assigned by writing, without seal. 
 Smith V. Kelley, xxvii. 237. 
 
 2. An assignment of the debtor's interest by virtue of a contract for the 
 conveyance of land, made and received for the purpose of defrauding the cred- 
 itors of the assignor, is void against creditors, subsequent as well as prior to 
 the assignment. WMtmore v. Woodward, xxviii. 392. 
 
 3. Where mutual dealings in account exist, the balance due may be assign- 
 ed ; and, after notice of the assignment, the assignee has an equitable right, 
 which the court will prptect, to the balance due at the time of the notice, 
 which cannot be diminished by any claim of the other party, accruing or pro- 
 cured subsequently. Wells, J., dissenting. Bartlett v. Pearson, xxix. 9. 
 
 4. A note made payable to a bankrupt, after petition filed, and before the 
 decree, passed to the assignee by operation of law. Carr v. Lord, xxix. 51. 
 
 5. The assignment of a mere expectation of earning money, if there be no 
 contract on which to found the expectation, is of no effect ; but it may be 
 made valid by a ratification of it, after the money has been earned. Farns- 
 luortli V. Jackson, xxxii. 419. 
 
 6. The delivery to the plaintiff of a receipt, approved by him, of property 
 attached by an ofiacer, is entitled to be protected, as an equitable assignment. 
 Jewett V. Doclcray, xxxiv. 45. 
 
 7. One of the partners may lawfully assign to a creditor thereof, a demand 
 due to the partnership, after its dissolution. Milliken v Loring, xxxvii. 408. 
 
 8. A., being indebted to C, thereafter delivered a note to him, against a 
 third person, and took a receipt, whereby C. promised to account for it, when 
 called for, or to return it ; — Held, that the transaction was a valid assignment, 
 and, being bona fide, could not be defeated by trustee process. Hardy v. 
 Golly, xLii. 381. 
 
ASSIGNMENT. 35 
 
 II. EFFECT OF AN ASSIGNMENT OF A CHOSE IN- ACTION. 
 
 (a) Eights op the assiqnee. 
 
 (b) Payments to, or a kelease from, the assignok. 
 (o) Set-opp, and other matters. 
 
 (d) Pleadings and evidence. 
 
 (a) Bights of the assignee. 
 
 9. Where the holder of the equity of redemption, paid the amount secured 
 by a mortgage of the land, and no intention of keeping the mortgage in force 
 was disclosed at the time, and there was then no contract for the assignment 
 thereof; and where, many years afterwards, the mortgagee made an assign- 
 ment of the mortgage, and of the notes secured by it, to the holder of the 
 equity, so paying the notes ; — Held, that the mortgage was to be considered 
 as discharged. Given v. Marr, xxvii. 212. 
 
 10. Where a suit pending in court and the contract, upon which it ^yas found- 
 ed, were assigned ; and afterwards the assignor died, and the action was pro- 
 secuted to judgment by the administrator ; and the execution issued upon the 
 judgment was satisfied by a levy upon land; — Held, that a bill in equity, 
 praying for a decree that the land thus levied upon should be conveyed to the 
 assignee, should be against the heirs. Simmons v. Moulton, xxtii. 496. 
 
 11. If an assignee purchase a mortgage by the payment of a sum less than 
 the amount actually due, the mortgager or his assignee will not be entitled to 
 redeem without payment of the fuU amount due upon the mortgage. Pease v. 
 Benson, xxviii, 336. 
 
 12. If the fraudulent grantee has paid part consideration, and the plaintiff 
 in equity is willing to admit that the grantee holds in trust, and to convey to 
 the plaintiff upon receiving such sum as was paid by him, no objection can 
 arise to such an adjustment. WUtmore v. Woodward, xxtiii. 392. 
 
 13. If the assignee bring an action, in the name of the assignor, for the 
 whole amount of his account against the other party, and the defendant bring 
 a cross-action, also, for the fuU amount of his account, and both actions pro- 
 ceed to judgment; under R. S., 1841, c. 115, the judgment debt in the lesser 
 claim, by leave of court, may be set off in payment of so much of the larger ; 
 but the costs of that suit cannot be set off in further payment of the balance 
 of the larger judgment, without the consent of the assignee. Wells, J., 
 dissenting. Bartlett v. Pearson, xxix. 9. 
 
 14. If, pending a suit in which land had been attached, the plaintiff assign 
 the demand for value, the equitable estate, after the levy, is in the assignee, 
 as a resulting trust ; and if the assignment be stated in the appraisers' cer- 
 tificate, such statement is notice of the trust to any attaching creditor of the 
 assignor. Warren v. Ireland, xxix. 62. 
 
 15. An assignment by the debtor to the creditor, of goods attached, or the 
 proceeds of the same, includes the principal and interest, collected by an 
 officer on a note taken for the sale of such goods on mesne process under the 
 statute, although the note was made payable to such officer. Gannett v. 
 Cunningham, xxxiv. 56. 
 
 16. The assignee of a debt and of the mortgage of personal property, by 
 which the debt was secured, though the assignment was by delivery only, has 
 the same right to possession of the property as the mortgagee would have had 
 bmith V. Porter, xxxt. 287. 
 
36 ASSIGNMENT. 
 
 17, An assigned note, belonging jointly to two or more assignees, may 
 be released by either of them ; and an action upon such note, brought in the 
 name of one of the assignees, may be discharged by either of the co-assignees. 
 Weston V. Weston, xxxt. 360. 
 
 18. Courts of law, in all cases, will uphold and protect the equitable in- 
 terests of assignees. And an assignee cannot discharge such interests. Pol- 
 lard V. Ins. Co. XXII. 221. 
 
 See Action, 84. 
 
 MOBTGAGE, 52. 
 
 (b) Payments to, or a release from, the assignor. 
 
 19. After the assignment of a bond by an obligee, it cannot be revoked by 
 the assignor without the consent of the assignee. Beed v. Nevins, xxxYlii. 
 193. Pollard v. Ins. Go. xlii. 221. 
 
 (c) Set-off and other matters. 
 
 20. If the assignee bring an action in the name of the assignor for the 
 whole amount of his account against the other party, and the defendant bring 
 a cross-action for the full amount of his account, and both proceed to judg- 
 ment; under R. S., 1841, c. 115, the" judgment debt in the lesser claim, by 
 leave of Court, may be set off in payment of so much of the larger ; but the 
 costs of that suit cannot be set off in further payment of the balance of the 
 larger judgment, without the consent of the assignee. Wells, J., dissent- 
 ing. Bartlett v. Pearson, xxix. 9. 
 
 21. If one, summoned as trustee, is notified, that the debt by him owing, 
 has been assigned to a third person, and he neglects to disclose such assign- 
 ment, the trustee judgment and payment of it on a legal demand, furnish to 
 him no protection against the claims of the assignee. Millihen v. Loring, 
 XXXVII. 408. 
 
 (d) Pleadings and evidence. 
 
 22. After the assignment of all interest in a chose in action, upon which 
 a claim in equity is founded, the bUl must be brought in the name of the 
 assignee ; and the assignor need not be a party. Hashell v. Hilton, xxx. 
 419. 
 
 23. And a total want of legal or equitable interest in the plaintiff in a suit 
 in equity, is fatal to the bill ; and the objection may be taken by demurrer, 
 or at the hearing. Haskell -v. Hilton, xxx. 419. 
 
 24. If a father, after making an assignment of the services or society of 
 his minor child, have retaken the chUd into his own keeping, the remedy of 
 the assignee (if he have any) is not by replevin, but by an action on the 
 contract. Farnsworth v. Richardson, xxxv. 267. 
 
 25. The obligee in a bond, after he has assigned the same, can maintain 
 no action upon it, without the consent or request of the party in interest. 
 Reed v. Nevins, xxxviii. 193. 
 
ASSIGNMENT. 37 
 
 III. ASSIGNMENT FOE THE BENEFIT OF CREDITORS. 
 
 (a) Under siatdte. 
 
 (b) Gbneballtt. 
 
 (a) Under statute. 
 
 26. An assignment by a debtor, (made while the Act of April 1, 1836, 
 was in force and unamended,) of his. property for the benefit of his creditors, 
 was void, if it required, from the creditors becoming parties thereto, a release 
 from their demands, except so far as provided for in the assignment. Vose v. 
 Holcomh, XXXI. 407. 
 
 27. Such a release, embodied in such an assignment, was inoperative and 
 void; and a creditor, having made such a release in such an assignment, is 
 not estopped or precluded from repudiating it, though he may have received 
 several partial payments under the assignment. Vose v. Holcomh, xxxi. 407. 
 
 27. An assignment of a debtor's property, made for the benefit of his cred- 
 itors, and containing a provision by which the subscribing creditors released 
 all claims except under the assignment, and having been subscribed by a part 
 only of the creditors, will not be defeated, as to other creditors, by a counter 
 release, subsequently made by the debtor, discharging such subscribing cred- 
 itors from the obligation of their release contained in the assignment. Howe 
 V. Newhegin, xxxiv. 15. 
 
 28. An assignment under Act of 1844, c. 112, is not void, in consequence 
 of a clause providing, that the subscribing creditors, " for the consideration 
 aforesaid, do severally, for themselves, release all manner of actions, debts, 
 demands and claims whatsoever, which they have against the assigning debt- 
 or." And, by signing such assignment, the creditor releases no claim, which 
 does not come within the first section of the Act. Boe v. Scribner, xli. 277. 
 
 29. If a debtor, contemplating an assignment, convey his property, with an 
 intention to delay, &c., his creditors, the assignment wUl not bar an action 
 against him by a creditor, who had become a party to it. The assignment 
 may be valid for some purposes and as to some parties, and invalid as to oth- 
 ers. Doe V. Scribner, xli. 277. 
 
 30. An assignment for the benefit of creditors, wherein the substantial re- 
 quirements of the statute are not complied with, is void. Simmons v. Gurtis, 
 XII. 373. 
 
 31. The object of the Act of 1844, c. 112, relating to assignments, was to 
 secure the equal distribution of insolvent debtors' effects not exempt from at- 
 tachment, among all their creditors, who, after notice, shoiJd become parties 
 to the assignment, in proportion to their respective claims. ^Berry v. Cutis, 
 XLii. 445. 
 
 32. Preferences, given by an assignment, or by the transaction to effect such 
 distribution, of which an assignment is a part, render the assignment void ; 
 and that, too, whether they appear in the assignment itself, or by evidence 
 aliunde. Berry v. GuUs, xiii. 445. 
 
 33. An insolvent debtor, contemplating an assignment for the benefit of his 
 creditors, under the above Act, ti-ansferred portions of his estate to secure cer- 
 tain honorary liabilities, and shortly, thereafter, executed an assignment of his 
 remaining property : — Held, that the transfers and the assignment were to be 
 regarded as parts of one transaction ; and, that inasmuch as the assignment 
 did not provide for the equal distribution of the debtor's estate, it was fraudu- 
 lent and void ; and that the assignee was chargeable as trustee of the debtor. 
 Berry v. Cutis, xiii. 445. 
 
38 ASSUMPSIT. 
 
 (b) Generally. 
 
 34. Where the general partner, (in a special partnership, subsisting and 
 conducted in his name,) makes a general assignment of his property for the 
 benefit of his creditors, without using any words to show that the partnership 
 property was intended to be assigned, the partnership property is not thereby 
 transferred ; and the assignee can give no title to such partnership property 
 as against the creditors of the co-partners. Merrill v. Wilson, xxix. 58. 
 
 35. In an assignment of a debtor's property in trust, for the benefit of cred- 
 itors, the trustees covenanted, under seal, that they would pay proportionate 
 dividends to such creditors as should sign the instrument of assignment, as- 
 senting thereto and stipulating that they would release certain claims : — Held, 
 that a creditor whose name had been signed thereto, under proper authority, ■ 
 by an agent, who, at the same time, without authority, annexed a seal to the 
 signature, was not so a party to the instrument as to maintain covenant brok- 
 en against the assignees for his proportion of the dividends. Baher v. Free- 
 man, XXXV. 485. 
 
 ASSUMPSIT. 
 
 1. If a conveyance of an interest in land be made in the common form of 
 a quitclaim deed, containing this stipulation; — "provided said grantee shall 
 pay said grantor, or his assigns, twenty-two dollars annually from this date on 
 demand" — until the happening of a certain event; and the grantee holds 
 under the deed, but fails to make the annual payments when demanded ; the 
 grantor may recover the money by assumpsit. Suff v. Nickerson, XXTII. 
 106. 
 
 2. Where a railroad passes over parts of two counties, the raiboad corpor- 
 ation may maintain an action of assumpsit in that county wherein they have 
 an office which is " made the depository of the books and records of the com- 
 pany by a vote of the directors, and a place where a large share of the busi- 
 ness is transacted ;" although the company may at the same time have anoth- 
 er office in the other county, where the residue of their business is transacted, 
 and in which the treasurer and clerk reside. A. & K. R. R. Go. v. Stevens, 
 
 XXVIII. 434. 
 
 3. Any person injured by the misconduct of an officer may waive the tort 
 and recover by an action of assumpsit, any money in the hands of a tort-fea- 
 zor as the fruits derived from the wrongful act. Richardson v. Kimball, xxviii. 
 463. 
 
 4. The plaintiff, with others, were guarantors for the purchase of goods by 
 A. of B. Afterwards, C. purchased A's stock, and informed one of the guar- 
 antors that he had assumed the debt due B. under the guaranty. Subsequently, 
 the guarantors were called on for payment, and, on informing C, he repeated- 
 ly promised one of them, and also the attorney who had the demand for col- 
 lection, that it should be paid. The guarantors paid B's claim, and the plain- 
 tiff paid his portion thereof and charged the same to C. who did not object 
 to its justice. — Held, that C's undertaking was not within the statute of 
 frauds, and that indebitatus assumpsit might be maintained. Todd v. Tobey, 
 
 XXIX. 219. 
 
 5. One of four owners of a vessel, cannot maintain assumpsit for the use 
 
ASSUMPSIT. 39 
 
 and charter of it, against the other three jointly. Sturdivant v. Smith, 
 XXIX. 387. 
 
 6. A creditor may maintain assumpsit on an implied promise, to recover of 
 his debtor the amount he has paid the jailer for the debtor's board while 
 imprisoned on the creditor's execution. Plummer v. Sherman, xxix. 555. 
 
 7. Where one tenant in common has received the rents and profits of the 
 common property, he is accountable, in assumpsit, to a co-tenant for his share. 
 Buck V. Spofford, xxxi. 34. 
 
 8. If, after pursuing the mode of the procedure prescribed by the statute, 
 a part owner of a gristmiU have made repairs beyond what was necessary to 
 render the property serviceable, his lien will be good upon the profits for such 
 part of the repairs as were necessary for that purpose ; and if he have been 
 reimbursed to that extent out of the joint profits, he wiU be accountable in 
 assumpsit to his co-tenant for his share of the surplus, if any. Buch v. 
 Spofford, XXXI. 34. 
 
 9. If a surety send his own money, by the debtor, to the oificer who holds 
 a precept upon the note, and the officer misappropriate the money, the surety, 
 after having paid the debt to the creditor, may maintain assumpsit against 
 the officer, and without a special demand, although the officer, when he 
 received the money, was not notified to whom it belonged. Stetson v. Howe, 
 XXXI. 353. 
 
 10. The law will not imply a contract, where an express contract is proved; 
 nor where the parties cannot legally make an express contract. Simpson v. 
 Bowden, xxxiii. 549. 
 
 11. Where an assignment, by the debtor to the creditor, of goods attached, 
 (which had been sold by the officer on mesne process, and a note payable to 
 himself on interest had been received in payment,) or the proceeds of the 
 same, was accompanied by an order, directing the officer to deliver the goods 
 or pay the avails of them to the assignee, from a payment of the principal 
 according to order, it may be inferred that the officer accepted the order, 
 though he at the same time refused to pay over the interest money, and 
 claimed it for his own benefit ; and upon such implied acceptance, the officer 
 is liable to the creditor in assumpsit, for the interest money. Gannett v. 
 Cunningham, xxxiv. 56. 
 
 12. Assumpsit for use and occupation, although the plaintiflF's title be 
 established, cannot be sustained, except upon proof, express or implied, that 
 the defendant recognized such title and occupied under it. Sogers v. Lilley, 
 XXXV. 200. Howe v. Russell, xii. 446. 
 
 \2. If an imprisoned debtor assert his inability to support himself in 
 prison, and that the creditor will be obliged to pay for his board, and the 
 creditor does it, it is inferrable that the debtor assented to such payment, and 
 promised. the creditor to refund the same. Spring v. Davis, xxxvi. 399. 
 Willis V. Hohson, xxxvii. 403. 
 
 13. Assumpsit cannot be maintained upon the contract of a corporation, 
 who, through an agent, puts to it a seal. Porter v. A. & K. B. B. Go! 
 xxxTii. 349. ' " '' 
 
 14. An agreement signed by defendant to take and fill one share in the 
 capital stock of a raihoad company, renders him liable in assumpsit, to pay 
 the assessments legally made upon that share. B. B. B. B. Co. v. Irish 
 XXXIX. 44. ' 
 
 15. If an agent, acting under the direction of his principal, cuts timber by 
 mistake partly upon the wrong township, which his principal receives and 
 
40 ASSUMPSIT. 
 
 disposes of, he can recover in assumpsit, of his principal, what he has been 
 obliged to pay for damages in a suit for that trespass. Drwmmond v. 
 Humphreys, xxxix. 347. 
 
 16. Assumpsit, by one tenant in common against his co-tenant, for use 
 and occupation of the common property, will not lie on an implied promise ; 
 but when a tenant in common has received more than his share of the rents of 
 the common property in money, or as bailiff of the other, assumpsit to recover 
 his share may be maintained by his co-tenant. Gowen v. Shaw, XL. 56. 
 
 17. For a creditor's proportion of a sum of money found due from an ex- 
 ecutor, on the settlement of his account with the Judge of Probate, under the 
 decree of that court, assumpsit wiU not lie. Wass v. Buchnam, xl. 289. 
 
 18. It seems a party cannot waive a tort and maintain assumpsit against 
 the tort-feazor, except when the property has been converted into money or 
 its equivalent. Emerson v. McNamara, xii. 565. 
 
 19. To maintain assumpsit on the money counts, proof, that any thing has 
 been received by defendant as payment in lieu of money, as negotiable notes, 
 specific articles, and even real estate, is sufficient. Hall v. Huckins, xm. 574. 
 
 20. A., owning a " claim" in C, agreed with B. to work it with him, and 
 divide equally what should be taken therefrom. After having received a cer- 
 tain amount from the claim, B. left the country, without any settlement be- 
 tween the parties : — Held, that assumpsit for money had and received, would 
 lie to recover of B. A's share of the gold, or its proceeds. — Held, also, evi- 
 dence of the customs or usages among persons mining in company, in C, and 
 also as to the reputation of a place, as being dangerous and unsafe for per- 
 sons known to have money, was inadmissible. Appieton, J., dissenting. 
 Oilman v. Cunningham, xlii. 98. 
 
 21. Where goods have been purchased and delivered, under an agreement 
 to pay for them by a note with a surety, payable at a future time, if the note 
 be not seasonably furnished, the seller may have an action of assumpsit im- 
 mediately for the money. Bice y. McLarren, xlii. 157. 
 
 22. Money, paid by mutual mistake of fact, may be recovered back. Star- 
 hird V. Curtis, xliii. 352. 
 
 23. A mortgagee of goods agreed with the creditor of the mortgager, that 
 he might attach and sell the goods, upon condition that the mortgage debt be 
 first paid from the proceeds of the sale. Accordingly the goods were attach- 
 ed and sold by an officer : — Held, that assumpsit would lie against the 
 officer to the amount of the debt. Stevens v. Whittier, xliii. 376. 
 
 24. Where one performs labor for the benefit of another, under his over- 
 sight and direction, the one who receives the benefit of the labor should pay 
 for it, and a promise to do so may be inferred. Goodenow^, J., dissenting as 
 to the application. True v. McOilvery, xliii. 485. 
 
 25. Where, by the fault of the plaintiffs, they failed to obtaiin timber 
 enough to pay notes given by them for a " permit," they cannot set up the 
 deficiency against the payment of the notes or recover it on the money counts, 
 either jointly or severally. Taylor v. Pierce, xliii. 530. 
 
 26. A lien upon the timber cut, having been agreed upon to secure the 
 payment of the notes, no action for money had and received can be main- 
 tained while they remain unpaid in the hands of the payee. Taylor v. 
 Pierce, xliii. 530. 
 
 See Action, 10, 11, 12, 50, 64, 66. 
 Bills, &c. 114. 
 Trusts, 29. 
 
ATLANTIC & ST. LAWRENCE E. R. CO. -ATTACHMENT. 41 
 
 ATLANTIC AND ST. LAWKENCE E. R. CO. 
 
 1 THs company, by its charter, is not exempted from the operation of the 
 Act' of 1842, c. 9. Pratt v. A. & St. L. B. B. Co., xlii. 579. 
 
 2 Section 18, of the charter of this company, looks only to the future, 
 and has no effect to annul or modify any thing contained in the Act of 1842, 
 c. 9. Pratt V. A. & St. L. B. B. Co., xlii. 579. 
 
 See CoiTNTT COMMISSIONEES, 1. 
 
 ATTACHMENT. 
 
 I. WHAT PROPERTY IS ATTACHABLE, AND WHEN, 
 n. VALIDITY OF AN ATTACHMENT. 
 HI. HOW DEFEATED OR DISSOLVED. 
 IV. PRIORITY OF ATTACHMENT. 
 V. EFFECT, RIGHTS AND LIABILITIES, RESULTING FROM AN 
 ATfACHMENT. 
 
 L WHAT IS ATTACHABLE, AND WHEN. 
 
 1. By the Act of 1829, c. 431, "the estate, right, title and interest which 
 any person has by virtue of a bond or contract in writing, to a conveyance of 
 real estate upon condition to be by him performed," is liable to be attached 
 and held after, as weU as before, the condition has been performed, where 
 no deed was given prior to the attachment. Whittier v. Vaughan, xxvii. 
 301. Whitmore v. Woodward, xxviii. 392. Houston v. Jordan, xxxv. 
 520. 
 
 2. Articles correctly designated as machines, in popular language, cannot 
 be considered as exempted by the words of the statute, "the tools of any 
 debtor ;" hence, a peg machine is not exempted from attachment, or sale on 
 execution. Knox v. Ghadborne, xxviii. 160. 
 
 3. The mortgagee of personal property, who has taken possession of the 
 property, may, before foreclosure, waive his lien under his mortgage and 
 attach the same upon the debt secured by it. LMy v. Cusliman, xxix. 
 429. 
 
 4. The interest of a mortgagee in land, prior to foreclosure, is not attach- 
 able. Lincoln v. White, xxx. 291. McLaughlin v. Shepherd, xxxii. 143. 
 Thornton v. Wood, xlii. 282. 
 
 5. An officer may attach an indivisible article of property, though it far ex- 
 ceed the value he was directed by his precept to attach, and though the debt- 
 or had other descriptions of personal property liable to attachment, of a large 
 amount. Moulton v. Ghadborne, xxxi. 152. 
 
 6. A creditor acquires no title by an attachment and connected levy of land, 
 of which, at the time of the attachment, the debtor had no title, but of which 
 he had given a warranty deed to a third person, though the debtor, after the 
 attachment and before the levy, obtained the title ; said deed having been re- 
 
 6 
 
42 ATTACHMENT. 
 
 corded prior to the levy, but subsequent to the attachment. Crocker v. Pierce, 
 
 XXXI. 177. 
 
 7. An attaching creditor is chargeable with notice in the same manner, and 
 with like effect, as a subsequent purchaser. McLaughlin v. Shepherd, 
 
 XXXII. 143. 
 
 8. If the law prohibits the sale of any specific description of articles, they 
 cannot be attached by judicial process. Such were spirituous or intoxicating 
 liquors, under Act of 1851, c. 211. Nichols v. Valentine, xxxvi. 322. 
 
 9. Thirty hundred of hay for the use of a cow, and two tons for the use of 
 ten sheep, are exempted, unrestrictedly as to time, from attachment and exe- 
 cution. Kennedy v. Philbrick, xxxviii. 135. ' 
 
 10. An attachment by virtue of a writ against an administrator, upon a 
 claim disallowed^by the commissioners of an insolvent estate, is Ulegal. Thay- 
 er V. Comstock, XXXIX. 140. 
 
 11. The interest acquired by a judgment creditor in his levy on land, is 
 not attachable during the year allowed by law for its redemption ; nor will a 
 levy of it as his property, during that time, prove available, although it may 
 not be redeemed. Kidder v. Orcutt, xt. 589. 
 
 12. If the debtor is unmarried, or has no family depending on him for 
 support, but is a boarder, or in such a situation that he can have no design 
 to use " corn or grain" as food for himself or his fainily, these articles are 
 not exempt from attachment. Blake v. Baker, xti. 78. 
 
 13.' The exemption from attachment of "com and grain," does not include 
 those species of grain, which, by sales or exchanges, may indirectly contribute 
 to the same end, when they are, by their nature and the general custom of 
 the community, not suitable to be used in the making of bread, and are not 
 so designed by the owner. Blahe v. Baker, xli. 78. 
 
 14. A., on different days, executed three mortgages of a vessel to B. 
 The first two were executed before the registry or enrollment of the vessel, 
 and were duly recorded by the town clerk. Before the vessel was registered 
 or enrolled, and the third mortgage executed and recorded in the collector's 
 office, the vessel was attached: — Held, that the first two mortgages were 
 valid, and that the vessel could not be legally attached upon mesne process, 
 without first having paid or tendered the amount of the mortgage debts. 
 Foster V. Perkins, xlii. 168. 
 
 15. The purchaser of an equity of redemption, sold on execution, has no 
 attachable interest in the premises, during the year within which it may be 
 redeemed. Thornton v. Wood, xlii. 282. 
 
 16. A right, acquired in any legal mode, to the conveyance of real estate, 
 though resting entirely in contract, is attachable, and may be taken and sold 
 on execution. Neil 'v. Tenney, xlii. 322. 
 
 17. An officer returned on a ^vrit: — "By virtue of this precept, I have 
 attached all the right, title, interest, estate, claim and demand of every name 
 and nature that the within named defendant has to any and all real estate in 
 the county of L. ; and within five days, I put into the postoffice at B., directed 
 to the register of deeds, at W., an attested copy of so much of this return 
 as relates to said attachment, with the names of the parties in the vrrit, the 
 sum sued for, the date of the ^vrit, and the court to which the same is re- 
 turnable," &c. : — Held, that the return was in its form sufficient. Kendall v. 
 Irving, xlii. 339. 
 
 18. It is not necessary for the officer personally to carry the copy of his 
 
ATTACHMENT. 43 
 
 return to the register's office; but it must be ." lodged" there, or the attach- 
 ment is not perfected. Kendall v. Irving, xlii. 339. 
 
 II. VALIDITY OF AN ATTACHMENT. 
 
 (a) General pkinoiples. 
 
 (b) Personal estate, 
 
 (c) Real estate. 
 
 (a) General principles. 
 
 19. Where an officer made a return of an attachment upon a writ, against 
 three defendants, in the following words: — "Penobscot, Dec. 28, 1836, at 
 eleven o'clock, A. M., I have attached all the right, title and interest the de- 
 fendant .has, in and to any real estate in the county of Penobscot ;" — Held, 
 that the language was too vague and uncertain to create a lien by attachment, 
 in the estate of either defendant. Hathaway v. Larrabee, xxvii. 449. 
 
 20. In determining what shall constitute an attachment, regard must be 
 had to the nature of the property, its situation, the expenses of removal, and 
 to the kind of possession which the owner retains of it. Bichnell v. Trickey, 
 XXXIV. 273. 
 
 21. If, after an attachment of an equity of redemption, the mortgager con- 
 vey the premises to the mortgagee by an absolute deed, in consideration of 
 the notes secured by the mortgage and other land, such grantee cannot hold 
 the estate which may be duly levied on by virtue of the attachment, against 
 such attaching creditor of the mortgager. Whitcomh v. Simpson, xxxix. 21. 
 
 22. Such attachment, after the mortgage has been thus canceled, is made 
 available only by a levy upon the land. Whitcomh v. Simpson, xxxix. 21. 
 
 (b) Personal estate. 
 
 23. It is the duty of an officer to be present at the place where wood is 
 situated, and take it into his possession, in order to justify bin; to return that 
 it has been attached. Darling v. Dodge, xxxvi. 370. 
 
 24. Where every thing is done to constitute and to show an attachment, 
 and the property is of such a character, that it cannot be removed immedi- 
 ately, it may be left where taken, and the attachment will continde effectual 
 and valid, by filing the copy and certificate required by the statute at the town 
 clerk's office. Darling v. Dodge, xxxvi. 370. 
 
 See Attachment, 14. 
 
 (c) Beal estate. 
 
 25. An attachment of real estate, by virtue of a writ containing the general 
 money counts, together with a count on an account annexed, which account 
 annexed was expressed as foUows : — " S. W. to J. W., Dr. To balance 
 due on account, and interest, $1500. Apr. 1, 1841,"— with no specifica- 
 tions annexed at the time of the attachment, is invalid. Saco v. HovJdnton, 
 XXIX. 268. ^ 
 
 26. Technical accuracy or the most appropriate phraseology is not to be 
 expected in officers' returns. They will be sufficient if the purpose be clearly 
 made known by the language used. Lambar'd v. Fike, xxxiii. 141. 
 
44 ATTACHMENT. 
 
 27. An officer returned that he had attached " as property of the defend- 
 ants, all the right, title and interest that they have to a grist miU, standing 
 in the town of M." — Held, if it appear that the defendants had any interest 
 in one grist mill in that town, the attachment was valid to hold that mill, 
 unless it appear, that they had also an interest in some other grist mill in the 
 same town. Lanibard v. Pike, xxxiii. 141. 
 
 28. An attachment of land creates no lien, as against a subsequent .pur- 
 chaser, unless the attaching officer certify to the register of deeds, all the 
 sums sued for and included in the creditor's judgment. Bacon v. Denning, 
 XXXIII. 171. 
 
 29. An officer's certificate, filed in the registry of deeds, stating the ad 
 damnum, mentioned in the writ, instead of the " sum sued for," creates no 
 lien ; nor unless it mentions the Court to which the ■writ is returnable. Nash 
 V. Whitney, xxxix. 341. 
 
 See Action, 19, 20. 
 
 Attachment, 17, 19. 
 Execution, 53. 
 
 in. HOW DEFEATED OR DISSOLVED. 
 
 (a). Negligence ok misdoings of the oppicee. 
 
 (b) Amendments. 
 
 (c) Otherwise. 
 
 (d) Lapse op time. 
 
 (a) Negligence or misdoings of the officer. 
 
 30. An officer's certificate, filed in the registry of deeds, stating the ad 
 damnum, instead of the "sum sued for" in the writ, creates no lien; nor 
 unless it mentions the court to which the writ is returnable. Nash v. Whit- 
 ney, xxxix. 341. 
 
 (b) Amendments. 
 
 31. If, in an action of assumpsit, another person be made a co-plaintiff, 
 by amendment of the writ by leave of court, the attachment of property 
 upon the writ is thereby dissolved. Moulton v. Ghapin, xxviii. 505. 
 
 32. Bail taken on mesne process is discharged by a subsequent increase of 
 the ad damnum, Langley v. Adams, xx. 125. 
 
 (c) Otherwise. 
 
 33. Where a creditor attaches the estate of his debtor held in common with 
 others, that cannot prevent the other part owners from procuring a legal par- 
 tition of the estate. Nor will such partition vacate or destroy the attachment, 
 which will remain as a lien on that part of it set off to the debtor. Argyle v. 
 Dwinel, XXIX. 29. 
 
 34. The attachment of property upon mesne process is not dissolved by the 
 death of the debtor, unless his estate shall be represented insolvent by the 
 executor or administrator. Hapgood v. Fisher, xxx. 502. 
 
 35. If- the attorney abandons the suit in which an attachment is made, the 
 attachment is necessarily vacated. Wheeler v. Nichols, xxxii. 233. 
 
ATTACHMENT. 45 
 
 36. Where goods have been attached, and put into the charge of a keeper 
 by the oiBcer, and the keeper abandons the possession, the attachment is 
 dissolved. Wheeler v. Nichols, xxxii. 233. 
 
 37. Upon property attached, and delivered by the officer into the possession 
 of receiptors, who promised to pay a sum certam or re-deliver to him the pro- 
 perty, the officer's lien is dissolved ; and the property is liable to be attached 
 at the suit of another creditor of the owner. Waterhouse v. Bird, xxxTll. 
 826. Stanley v. DrinJcivater, xiili. 468. 
 
 38. A. attached B's real estate, afterwards, B. obtained his discharge in 
 bankruptcy, under the Act of 1841. A. duly filed, in the Court against said 
 bankrupt, one of the notes declared on; — Held, that this should be regarded 
 as an abandonment or waiver of the attachment. Bowley v. Bowley, xii. 
 542. 
 
 39. So, too, the purchase of property by the attaching creditor, taking a 
 bill of sale for it from the debtor, dissolves the attachment. Stanley v. 
 Drinkwater, xiiii. 468. 
 
 See Bankbuptct, 40. 
 
 (d) Lapse of time. 
 
 40. Where an attachment was made on mesne process, the action duly 
 prosecuted to judgment and execution ; and where, at the next succeeding 
 term of the court, " on motion of the plaintiff, it was ordered, that the judg- 
 ment and execution aforesaid be annulled, and that the execution aforesaid 
 be returned into the clerk's office ; and the action was thereupon brought for- 
 ward to" that term: — Held, that the attachment was dissolved. Leighton v. 
 Beed, xxviir. 87. 
 
 IV. PRIOEITY OF ATTACHMENT. 
 
 41 . Where an attachment was made on mesne process, the action duly 
 prosecuted to judgment and execution ; and where, at the next succeeding 
 term of the court, " on motion of the plaintiff, it was ordered, that the 
 judgment and execution aforesaid be aimuUed, and that the execution afore- 
 said be returned into the clerk's office ; and the action was therefore brought 
 to" that term; — Held, that the attachment was dissolved; and that another 
 attachment, made after the time when the first suit was brought forward, and 
 before the last judgment, had the priority. Leighton v. Beed, xxviii. 87. 
 
 V. EFFECT, RIGHTS AND LIABILITIES, RESULTING FROM AN 
 ATTACHMENT. 
 
 (a) Interest op the debtok. 
 
 (b) Rights and duties op the opficeb. 
 
 (c) Powers and liabilities op a bailee or beceibtoe. 
 
 (d) In general. 
 
 (a) Interest of the debtor. 
 
 42. If the property attached by an officer has gone back into the hands of 
 the debtor, he has no claim upon the officer for it. Moulton v. Chapin, 
 XXVIII. 505. 
 
46 ATTACHMENT. 
 
 43. After a seizure of the vessel and cargo for a supposed breach of the 
 law, and after confession by the owner, and while the property is in ctfstody 
 of the law under the seizure, he stiU has such an interest as would enable 
 him to mortgage the same to some of his creditors, as against others, who 
 should attach after final restoration by the government. Mitchell v. Cunning- 
 ham, XXIX. 376. 
 
 44. After an attachment of an equity of redeeming mortgaged land, no 
 conveyance made by the debtor can lessen the creditor's rights. Abbott v. 
 Sturtevant, xxx. 40. 
 
 45. An attachment does not interrupt the seizin of the debtor. Brown v. 
 Williams, xxxr. 403. 
 
 46. The owner of personal property, attached upon a writ against him, 
 and actually retained by the oificer or his baUee, may transfer his- interest 
 therein either absolutely or in mortgage, subject to the attachment-lien. 
 Wheeler v. Nichols, xxxii. 233. 
 
 47. Articles, attached on a writ, which are liable to perish or waste or be 
 greatly reduced in value by keeping, or which cannot be kept without great 
 expense, may be restored to the debtor, upon his giving bond in compliance 
 with 114th c. R. S., 1841. Snow v. Cunningham, xxxti. 161. 
 
 (b) Bights and duties of the officer. 
 
 48. If neither creditor nor debtor has any claim upon an officer for property 
 attached by him, which has gone back into the hands of the debtor, the 
 officer cannot maintain any action upon the receipt. Moulton v. Chapin, 
 xxTiii. 505. 
 
 49. It is not indispensable that the officer's deed of an equity of redemp- 
 tion should be dehvered on the day of sale. Abbott v. Sturtevant, xxx. 40. 
 
 50. If it be delivered so soon afterward, that it may be regarded as a part 
 of the sale-transaction, the deed, and the purchaser's right under it, wiU have 
 relation back and take effect from the time of sale. Abbott v. Sturtevant, 
 xxx. 40. 
 
 51. An officer is not bound to take a receipt for property attached ; and if 
 he should do it, without consent of the creditor, he would be liable, at all 
 events, for the property. Moulton v. Chadborne, xxxi. 152. 
 
 52. Neither the request of the debtor, that the officer will attach other 
 property, instead of that abeady attached ; nor the offer of a third person to 
 deposit money, for the officer's security, as an inducement to discharge the 
 property attached ; nor the mere offer of the debtor to have an appraisement of 
 the attached property, imposes any duty upon the officer. But it is his duty 
 to attach personal instead of real estate, if so directed. Moulton v. Chad- 
 borne, XXXI. 152. 
 
 53. A vessel, in good repair, at the port of the owner's residence, is not 
 property, of which an appraisal may be had, under R. S., 1841, c. 114, § § 53 
 to 57. Moulton v. Chadborne, xxxi. 152. 
 
 54. If an officer, having a writ for service, offer the summons to the de- 
 fendant, who refuses to receive it, and the officer thereupon throws it down, 
 he may rightfully return that he delivered the summons, or he may return the 
 facts specifically, and they will be held as a delivery. Fuller v. Kenney, 
 xxxii. 334. 
 
 55. The approval by the plaintiff, as to the ability of the person taken as 
 
ATTACHMENT. 47 
 
 receiptor, does not exonerate the officer from effort to find the property, or 
 from the duty of bringing a suit upon the receipt. Allen v. Doyle, xxxiii. 
 420. 
 
 56. Where certain articles, which are liable to perish, &c., are attached on 
 a writ, and are subsequently attached, together with additional articles, by the 
 same officer, upon a writ in favor of another creditor, such additional articles, 
 before they can be restored to the debtor, must be appraised and bonded sep- 
 arately from those attached on the first writ. Snow v. Cunningham, xxxvi. 
 161. 
 
 57. The property in goods, acquired by the officer attaching them on mesne 
 process, is merely a special one. Nichols v. Valentine, xxxvi. 322. Fuller 
 v. Loring, xlii. 481. 
 
 58. An attachment of liquors, the sale of which is prohibited by law, 
 confers no special property upon the officer ; and he can maintain no action 
 for a forcible taking them from his possession, even against one having no 
 right or authority. Nichols v. Valentine, xxxvi. 322. 
 
 59. The inability of an officer to deliver property which he had attached 
 on a writ, does not dispense with the rule, that a demand of the property 
 should be made within thirty days from the judgment by an officer holding 
 the execution. Pearsons v. Tincker, xxxvi. 384. 
 
 60. An officer is not bound to attach the goods of a debtor, out of his 
 possession, unless specially ordered. And if specially ordered to attach spe- 
 cific property of a debtor not in his possession, his duty is to do so, although 
 he held in his hands older precepts against the same debtor, with general 
 orders to attach all his property. Weld v. Chadhourne, xxxvii. 221. 
 
 61. The law wiU imply no indemnity to an officer for attaching goods not 
 in the possession of the debtor, without special orders. But he is required to 
 use diligence and good faith ; and if he knows of property belonging to the 
 debtor, but not in his possession, he is bound to attach it under general 
 orders. Weld v. Chadhourne, xxxvii. 221. 
 
 62. An officer who sells property on mesne process, without the consent 
 of the creditor and debtor, or otherwise than by the method prescribed in 
 c. 114, § 53, R. S., 1841, becomes a trespasser ab initio. Eoss v. Fhilbrich, 
 xxxix. 29. 
 
 63. And the pendency of the action, on which such property was attached, 
 interposes no obstacle to an immediate suit by the owner. Boss v. Fhilbrick, 
 XXXIX. 29. 
 
 64. It is the official duty of an officer, to keep the property attached for 
 thirty days after judgment, and to deliver it upon demand to any officer 
 having the execution with authority to receive it, although he did not continue 
 to be aa officer. Smith v. Bodfish, xxxix. 136. 
 
 (c) Powers and liabilities of a bailee or receiptor. 
 
 65. As a general rule, the receiptor of property attached, may be discharg- 
 ed from his liability, by proof that the property, when attached, was not 
 owned by the debtor, but by a third person into whose hands it has been 
 delivered. Pen. B. Corp. v. Willdns, xxvii. 345. Drew v. Livermore 
 XL. 266. 
 
 _ 66. But where the receipt stipulated, that " this receipt shall be conclu- 
 sive evidence against me, as to the receipt of said property, its value and my 
 
48 ATTACHMENT. 
 
 liability under all circumstances, to said officer," the receiptor is estopped to 
 deny that it was the property of the debtor ; and the officer cannot set up 
 the defence, that the property did not belong to the debtor but to the re- 
 ceiptor. Pen. B. Corp. v. Wilhins, xxxvn. 345. Drew v. lAvermore, 
 XL. 266. 
 
 67. If an attaching officer be under no liability to the creditor for the 
 appropriation of the property attached to the payment of the debt, the re- 
 ceiptor will be discharged. JPen. B. Corp. v. Wilkms, xxtii. 345. 
 
 68. If a part of a vessel be attached, and the officer takes a receipt 
 therefor, and she is sent to sea, the receiptor is not liable to the officer for 
 any earnings of the vessel. Bichardson v. Kimball, xxviii. 463. 
 
 69. If there be good cause of action against a receiptor when the action 
 was commenced, but the right of action had ceased with the preservation of 
 the attachment afterwards, nominal damages may be recovered ; but where 
 no cause of action existed against the receiptor when the suit was commenced, 
 the suit must fail. Moulton v. Chapin, xxviii. 505. 
 
 70. It is no defence to an action upon a receipt for property attached, that 
 subsequently to the expiration of the thirty days after judgment, the original 
 debtor died, unless, in the probate court, his estate was represented insolvent. 
 Eapgood v. Fisher, xxx. 502. 
 
 71. And although such receipt was taken by direction of the creditor, and 
 the officer's liability discharged, the creditor is equitable owner of the receipt 
 and can enforce it in the name of the officer. Hapgood v. Fisher, xxx. 502. 
 
 72. If a receiptor of attached goods give his written contract to pay the 
 officer a specified sum or restore the articles, therein expressly admitting the 
 goods to be of that value, in an action upon the contract, he will not be 
 pennitted to prove, that the goods were therein overvalued ; or that such 
 property had greatly depreciated in price ; or that he offered other goods of 
 the same denomination. Smith v. Mitchell, xxxi. 287. 
 
 73. Receiptors for property attached in a suit, wherein judgment has been 
 rendered against the defendant, cannot impeach it. Even if there were no 
 judgment, the officer is accountable for the property; and the receiptors, 
 being merely his bailees, are accountable to him. Brown v. Atwell, xxxi. 
 351. Drew v. Livermore, XL. 266. 
 
 74. It is not legally inconsistent that the same baUee should act to keep 
 possession, both for the attaching officer and for a purchaser under the owner. 
 Wheeler v. Nichols, xxxii. 233. 
 
 75. When the promise contained in a receipt for property attached is, that 
 the property shall be delivered " on demand," the demand is a condition 
 precedent. And the inability of the receiptor to redeliver the property, does 
 not waive the necessity for a demand, in order to fix his liability. Bichnell 
 V. Hill, xxxiii. 297. 
 
 76. A commission merchant may maintain replevin against an attaching 
 officer, although he may have consented to become keeper of the goods for 
 the officer. Seioall v. Nichols, xxxiv. 582. 
 
 77. Where property is seized on execution, and the officer returns that 
 further service of the execution is suspended by reason of a former attach- 
 ment when no such attachment is in force ; and afterwards takes a receipt for 
 such property, to be re-delivered on demand, or within thirty days from the 
 rendition of judgment in the first suit, no action can be maintained on such 
 receipt. Stanley v. Drinhwater, xliii. 468. 
 
ATTORNEY. 49 
 
 (d) Jn general. 
 
 78. A levy of an execution, seasonably made after judgment, has relation 
 to the time of the attachment. Brown v. Williams, xxxi. 403. . 
 
 79. The lien, created by an attachment of real estate, is not limited to the 
 amount of the ad damnum ; hut is for the security of the final judgment 
 which may be recovered, and legal costs, incident to its enforcement and col- 
 lection. Searle v. Preston, xxxiii. 214. 
 
 80. Prior to the Act of 1847, c. 21, the interest which an obligee or his 
 assignee has in a conditional bond for the conveyance of land, was to be made 
 available to creditors by a sale of it on execution. Houston v. Jordan, xxxv. 
 520. 
 
 81. If, after an attachment made in a suit against the obligee or his assignee, 
 a conveyance pursuant to the bond shall have been made to the person whose 
 interest is attached, then, by the Act of 1847, aforesaid, the creditor may 
 levy and retain the validity of the attachment ; but otherwise, if the convey- 
 ance shall have been made to a third person. And whatever rights, under 
 such an attachment, are acquired by an auction purchase, can be vindicated 
 only by process in equity. Houston v. Jordan, xxxv. 520. 
 
 82. The right of a plaintiff, arising from an attachment, is not an absolute 
 right. Bowley v. Bowley, xli. 542. 
 
 83. If an attachment be dissolved by the acts of the parties, without the 
 knowledge of the attaching officer, who makes a seizure upon an execution 
 subject to the attachment, and suspends further service for that cause, no 
 rights wiU be secured to the creditor under R. S. of 1841, c. 117, § § 33 and 
 34, beyond those which would have existed had the officer known, when he 
 made the seizure, that the attachment had been dissolved. Stanley v. Drinh- 
 water, xliii. 468. 
 
 ATTORNEY. 
 
 1 . Verbal directions from the constituent to the attorney can confer no new 
 authority, nor enlarge that contained in the power of attorney. Spofford v. 
 Holhs, XXIX. 148. 
 
 2. A ratification of an unauthorized conveyance of land by a proprietor's 
 attorney, must be by an instrument under seal. The taking back of a mort- 
 gage and notes by the proprietor, without the mortgage referring specifically 
 to the deed of the same premises, or containing any thing inconsistent with the 
 attorney's want of authority, is not a ratification ; nor does it estop the mort- 
 gagee from denying that the title passed to the mortgager, by the attorney's 
 deed. Spofford v. Hohhs, xxix. 148. 
 
 3. Where a power of attorney authorized the attorney to sell certain lands, 
 " for the purpose of making actual settlements thereon," and to sign, seal and 
 deliver " legal and sufficient deeds, with the several covenants, and a general 
 warranty," and in "fee simple;"— jHeZd, that the attorney was clothed with 
 discretion to judge, whether the purchaser intended to purchase for purposes 
 of settlement ; and there being no fraud, a conveyance made under the power 
 was valid, although the land was purchased on speculation. Spofford v. Hohls, 
 XXIX. 148. 
 
50 ATTORNEYS AND COUNSELORS. 
 
 4. Where a proprietor, who had sold certain lots, and contracted to sell 
 some other lots, granted a power, authorizing his attorney to " collect and re- 
 ceive all sums of money due to him for said lands from purchasers, and to ex- 
 ecute all such contracts as the sales may require :" — Held, that the power 
 did not authorize the attorney to make new contracts for the sale of other 
 lands. Galef v. Foster, xxxii. 92. 
 
 5. A power of attorney ceases at the death of the principal. Wheeler v. 
 XLi. 432. 
 
 ATTOKNEYS AND COUNSELORS. 
 
 * 
 
 I. AUTHORITY OF AN ATTORNEY, 
 n. DUTY AND LIABILITY OE AN ATTORNEY, 
 in. LIEN OF AN ATTORNEY. 
 
 I. AUTHORITY OF AN ATTORNEY. 
 
 1. Where a practising attorney, in the transaction of business, takes a 
 negotiable note to his principal, and it is suffered to remain in the possession 
 of the attorney many years, the law presumes that he has authority to receive 
 payments on it. Patten v. Fullerton, xxvii. 58. 
 
 2. And if the consideration of the ntTte to the principal was property sold, 
 belonging to an infant to whom he was guardian, the power of the attorney 
 to receive payments on the note would not cease with the guardianship of the 
 principal. Patten v. Fullerton, XXTII. 58. 
 
 3. And were the principal an unmarried female at the time the note was 
 made, and she afterwards married, the authority of her attorney would he 
 continued with the assent of her husband. Patten v. Fullerton, xxvii. 58. 
 
 4. Generally, payments made on such note to the attorney in specific 
 articles, woidd not bind the principal. But if one of several payments in 
 specific articles to the attorney, be received by the principal, and the note is 
 still sufiered to remain in the possession of the attorney, and no objection is 
 made to the attorney or the debtor, such payments would go in discharge of 
 the note, the same as if they had been money. Patten v. Fullerton, xxvii. 
 68. 
 
 5. An attorney at law, unless specially authorized, cannot discharge an 
 execution in favor of his client, without pajonent of the whole amount. 
 Jewett v. Wadleigh, xxxii. 110. 
 
 6. The execution creditor would be entitled to collect of the debtor at least 
 that portion of an execution thus not paid. Jewett v. Wadleigh, xxxil. 110. 
 
 7. Where an execution debtor, having made an agreement with the credi- 
 tor's attorney to pay certain securities lodged in the attorney's possession, as 
 a full discharge of the execution, though amounting to a part only of the sum 
 due, contracted to pay the balance of the execution thus uncovered by securi- 
 ties, in case they were not punctually met at their respective pay-days, such 
 a contract is nudum pactum. Jewett v. Wadleigh, xxxii. 110. 
 
 8. The remarks of counsel, in the progress of a cause, are not to be view- 
 
ATTOENEYS AND COUNSELOES. 51 
 
 ed as an admission or agreed statement, by which the rights of his client 
 should he determined. McKeen v. Gammon, xxxiii. 187. 
 
 9. The making of a contract, in behalf of the creditor, for extending the 
 time, for a principal in a poor debtor's bond, to make his disclosure, beyond 
 the six months, is within the powers pertaining to his attorney, appointed to 
 act for him at the disclosure. Phillips v. Rounds, xxxiii. 357. 
 
 10. A party will not be bound by a contract, entered into on his behalf, by 
 his attorney at law, without previous authority or subsequent ratification. 
 Ireland v. Todd, xxxvi. 149. 
 
 11. Thus, where an attorney obtained possession of mortgaged premises, 
 but, before foreclosure expired, the money due was paid, without deducting 
 the rents and profits, and the attorney gave an obligation in the name of the 
 mortgagee to repay that amount, when ascertained by referees agreed upon ; 
 ia an action on the award, — Held, that the mortgagee was not bound. Ire- 
 land V. Todd, xxxTi. 149. 
 
 12. An attorney at law, in virtue of " his general authority as an attorney 
 at law, to collect stumpage for the plaintifls," cannot execute a replevin bond 
 in their name. Nar. L. Propr's v. Wentworth, xxxvi. 339. 
 
 13. But a prosecution, by the plaintiffs, of the replevin suit, constitutes a 
 ratification, and discharges the interest of the attorney. Nar. L. Propr's v. 
 Wentworth, xxxvi. 339. 
 
 14. Where an attorney at law agreed with the plaintiff, that if he would 
 permit him to commence a suit in his name and the action failed, he, the 
 attorney, would pay aU costs thereon ; and such suit was commenced and the 
 plaintiff was compelled to pay the bUl of costs : — Held, that the agreement 
 was illegal, and could not be enforced. Whether compensation for services 
 rendered under such agreement is recoverable, qucere. Low v. Hutchinson, 
 xxxvii. 196. 
 
 15. It is a general rule, that special authority to bring a suit must be 
 shown by an attorney. Prentiss v. Kelley, xli. 436. 
 
 16. Where the plaintiff's appearance is seasonably called for, the attorney's 
 employment jnust be shown; but if not called for at the first term, his 
 employment will be presumed. Prentiss v. Kelley, xli. 436. 
 
 n. DUTY AND LIABILITY OF AN ATTORNEY. 
 
 17. Attorneys, counselors and solicitors are not at liberty to divulge com- 
 munications made to them, in reference to their professional employment, 
 without the assent of their clients. The law will not compel, and the courts 
 will not permit it. McLellan v. Longfellow, xxxii. 494. Sargent v. 
 Hampden, xxxviii. 581. 
 
 18. To entitle a communication to this privilege, it is not essential that it 
 should be made under any special injunction of secresy, or that the client 
 should understand the extent of the privilege ; but it extends to aU communi- 
 cations made with a view to professional employment. McLellan v. Lonq- 
 fellow, XXXII. 494. 
 
 19. Declarations made to any attorney with reference to his employment 
 are privHeged, although the attorney declines the engagement. Sarqent v' 
 Hampden, xxxviii. 581. . 
 
52 AUCTION AND AUCTIONEEE. 
 
 m. LIEN OF AN ATTOENEY. 
 
 20. The attorney of the creditor, who recovers a judgment, has a lien upon 
 it, and upon the execution, which may issue thereon, for his fees and dis- 
 bursements in the suit ; but such lien does not attach until final judgment. 
 Gammon v. Chandler, xxx. 152. Eohson v. Watson, xxxiv. 20. 
 
 21. Such a lien is effectual, though the debtor had no notice that the at- 
 torney relies upon it, or even that an attorney had been employed, and it can- 
 not be defeated by the client. Gam/mon v. Chandler, xxx. 152. Hohson 
 V. Watson, xxxiv. 20. 
 
 22. The attorney's lien is an ownership in the property of the judgment, 
 and of the same efficiency, as would be created by an assignment of the judg- 
 ment for collateral security, and entitles him to the same remedies for its en- 
 forcement. Sobson V. Watson, xxxiv. 20. 
 
 23. The lien, which an attorney had upon the original judgment, attaches to 
 a relief bond given by the debtor, and it cannot be defeated by the creditor's 
 discharge of the bond. Hohson v. Watson, xxxiv. 20. 
 
 24. The property in a relief bond belongs to the several owners of the 
 judgment, and any such owner may use the name of an obligee for the 
 collection of it. Sohson v. Watson, xxxiv. 20. , 
 
 25. In order that the surety in a poor debtor's relief bond should be held 
 liable for the attorney's lien on the judgment and execution, upon which the 
 bond arose, notwithstanding a discharge by the judgment creditor, if it be 
 necessary that the siirety have knowledge of the lien, it seems, that such 
 knowledge, acquired pending the suit, is sufficient. Hohson v. Watson, 
 XXXIV. 20. 
 
 26. Upon a judgment vacated by a judgment in review, no action can be 
 maintained to secure a lien for his costs, by the attorney who obtained it. 
 Dunlap V. Burnham, xxxviii. 112. 
 
 AUCTION AND AUCTIONEER. 
 
 1 . Where a corporation is authorized by law to sell logs for the toUs at 
 public auction, on grounds of public policy, such a sale will pass a valid title 
 to the purchaser, although the proceedings of the officers of the corporation, 
 in relation to the custody of the articles and to the sale, are irregular and 
 defective. Hunter v. Perry, xxxiii. 159. 
 
 2. A boom corporation having such powers, collected logs, and after those 
 belonging to certain owners had been redeemed and taken away, proceeded 
 to sell at auction all the residue, comprising logs of divers marks and values 
 and ovmerships : — 
 
 Held, that a valid title passed to the purchaser, although the proceedings 
 of the officers of the corporation, pertaining to the taking and keeping of the 
 logs and to the sale were irregular ; and although they sold more of the logs 
 of each owner than were necessary to pay the tolls and expenses due upon 
 the logs of such owner ; and although the sale was made collectively of all 
 the logs in the boom, without any regard to ownership, or to the respective 
 
BAIL. — BAILMENT. 5 3 
 
 amounts due upon them ; and although the sal* was had, not on the day 
 prescribed in the charter, but on a subsequent day, by an adjournment not 
 proTid'ed fol: in the charter. Hunter tt. Perry, xxxiii. 169. 
 
 3. Auction sales are within the statute of frauds. But the auctioneer is 
 the agent of both parties, and is bound to act for them both, with equal 
 fidelity ; and his entry of the name of the purchaser on his book or memoran- 
 dum 6oiitaintog the particulars of the contract, is a sufficient signing within 
 the statute. Pihe v. Balch, xxxViii, 302. O'Donnell v. Leemcm, xxiii. 
 iSS. 
 
 4. Property exposed at auction sale does not become vested in the highest 
 bidder by being fairly knocked off to him, until the requirements of the 
 statute are fulfilled. Pihe v. Balch, xxxTiil. 302. 
 
 5. An auctioneer, after he has knocked off property, may re-open the sale, 
 if he recognizes a higher bid. Pike v. Balch, xxxviii. 302. 
 
 See Action, 82. 
 
 KoTICE, &c., 6. 
 
 AUDITOES. 
 See Account, 3. 
 
 AWARD. 
 
 See Aebitkation. 
 
 BAIL. 
 
 Bail taken on mesne process is discharged by a subsequent increase of the 
 i damnum. Langley v. Adams, XL. 125. 
 
 BAILMENT. 
 
 1. The owners of steamboats, as common carriers, are bound not only to 
 the highest degree of care and dUigence, but as insurers against every peril, 
 not arising from the act of God, as tempests, storms, lightning and exteaot^ 
 dmary convulsions of the elements, or acts of a public enemy. Hence, the 
 ^^^ a ,',^Tment at sea, by coUision, is not excusable. Plaisted v. B. & 
 Ken. S. Nav. Co., xxtii. 132. 
 
54 BAIL.— BAILMENT. 
 
 2. The common law liability of a common carrier, may be restricted by a 
 notice from him brought home to the knowledge of the customer, as to the 
 extent of the liability to be borne by the carrier. But no notice or contract 
 can exonerate a .common carrier from liability for damage, occasioned by his 
 negligence or misconduct. Sager v. P. S. & P. & E. B. B. Co., xxxi. 228. 
 
 3. Such notices wiU not exempt carriers from responsibility for losses 
 occasioned by a defect in the vehicle or machinery used for transportation. 
 Sager v. P. S.& P. & E. B. B. Co., xxxi. 228. 
 
 4. A carrier will be liable for disobedience of directions given and assented 
 to respecting the mode of conveyance. Sager v. P. S. & P. & E. B. B. Go., 
 XXXI. 228. 
 
 5. If the owner stipulate with the carrier to take upon himself the risk of 
 " all damages that may happen" to the goods in the course of transportation, 
 such stipulation wiU. not exonerate the bailee from losses resulting from his 
 negligence or misconduct. Such stipulation, however, would cast upon the 
 owner the burden of proving that the damage was so occasioned. Sager v. 
 P. S.& P. & E. B:B. Go., xxxi. 228. 
 
 6. The risk of a common carrier terminates as soon as the goods have 
 arrived at their place of destination, and are deposited, and no further duty 
 remains to be done under the contract to carry them. Stone v. Waitt, xxxi. 
 409. 
 
 7. When the transit is ended, and the delivery is either completed, or waiv- 
 ed by the owner ; or if the consignee take charge of the goods before they 
 have arrived at the extreme or ultimate place of delivery, the carrier's risk 
 wiU then terminate. Stone v. Waitt, xxxi. 409. 
 
 8. An inn-keeper's liability for goods and chattels, stolen or injured at 
 his inn, extends beyond his own fidelity and that of his servants. Shaw v. 
 Berry, xxxi. 478. 
 
 9. He is responsible for well and safe keeping, and is bound to keep the 
 goods and chattels, so that they shall be actually safe, except against inevita- 
 ble accidents, and the acts of public enemies, and of the owners of the pro- 
 perty or their servants. Shaw v. Berry, xxxi. 478. 
 
 10. A bailee of personal property, injuredwhile in his possession, may re- 
 cover the amount of the injury, in an action in his own name, against a wrong- 
 doer, and hold the balance beyond his own interest, in trust for the general 
 owner. Little v. Fossett, xxxit. 545. 
 
 11. The special owner of property, having it in his possession, may re- 
 cover its value in a suit against a common carrier by whose negligence it has 
 been lost. Moran v. Port. S. P. Go., xxxv. 55. 
 
 12. A bailee without reward is answerable only for fraud, or that gross 
 neglect which is evidence of fraud. ' But where the bailor knows the habits 
 of the baUee and the place and the manner in which the goods are to be kept, 
 the law presumes his assent that his goods shall be thus treated, and if lost 
 or damaged, he can maintain no action therefor. Knowles v. A. & St. L. 
 B, B. Go. xxxviii. 55. 
 
 13. A bailee of goods upon which labor is to be performed for a sum of 
 money, and they are not to be changed into something essentially different in 
 their character, has only a special property in them, which is terminated by 
 the performance of his labor, and a delivery to the general owner. Morse v. 
 And. B. B. Go., xxxix. 285. 
 
 14. And when such bailee has completed his work, and delivered the 
 
BANK. 55 
 
 soods to a common carrier for tlie general owner, and paid for their carriage, 
 tnd the goods are lost or damaged, he can maintain no action against the 
 carrier therefor. Morse v. And. B. B. Co., xxxix. 285. 
 
 15 Common carriers by stage are responsible for the safety of their pas- 
 sengers, when an injury occiirs by their neglect, such passengers being in 
 the exercise of ordinary care, and in no way contributing to the injury. Keith, 
 V. Pinkham, xiiil. 501. 
 
 16 If an agent of a stage line requests a passenger to take an inside seat, 
 or he will remain outside at his peril ; this does not excuse the driver from the 
 use of ordinary care. Such passenger assumes only the pecuhar risk of his 
 exposed situation, but not that resulting from the negUgence of the driver. 
 Keith V. Pinkham, xiiii. 501. 
 
 BANK. 
 
 1. The directors of a bank, having the control of its financial affairs, may 
 direct the assignment or transfer of a note belonging to the bank. Stevens 
 V. Hill, XXIX. 133. ' 
 
 2. Where the directors of a bank, just before the expiration of its charter, 
 transfer property to trustees for the benefit of the stockholders, all interest 
 which the corporation had in the property terminates, the legal interest vests 
 in the trustees, and the beneficial interest in the stockholders. Stevens v. 
 Hill, XXIX. 133. Cooper v. Curtis, xxx. 488. 
 
 3. The assent of a bank, that a note may be sued in its pame for the 
 benefit of a third person, may be inferred from the acts of its officers, and 
 without a vote of its directors. Lime Bock Sank v. Maeomber, xxix. 564. 
 
 4. Where the charter of a bank is surrendered and accepted, but its 
 corporate power is continued for a limited time, for the purpose of closing 
 its affairs, the directors may appoint a cashier under the general banking law. 
 Cooper V. Curtis, xxx. 488. 
 
 5. If the directors were chosen and recognized by the proprietors of the 
 bank as the only board, and they appointed the cashier, who acted under that 
 appointment by their direction, it is not competent for the debtors of the 
 bank to avoid their contracts, on the ground that the directors were not 
 chosen strictly according to the provisions of the statute. Cooper v. Curtis, 
 xxx. 488. 
 
 6. A trustee, created by a bank, may maintain a suit in his own name on 
 a note payable to the bank and indorsed to him while the corporate capacity 
 existed, though the action iriay not be commenced till afterward. Cooper v. 
 Curtis, xxx. 488. 
 
 7. The dissolution of a corporation, by Act of the Legislature, deprives it 
 of its corporate existence. And a judgment rendered against it, after such 
 dissolution is erroneous. Merrill v. Suffolk Bank, xxxi. 57. Banhin v. 
 Sherwood, xxxiii. 509. 
 
 8. The taking of interest in advance upon loans made by a, bank, is within 
 the weU established rules of banking. But after a note given to the bank 
 has become payable, and in no maimer taken up or renewed, the bank can- 
 
56 BASK. 
 
 not lawfully take upon it a rate of interest exceeding six per cent, per annum. 
 Ticonic Bank v. Johnson, xxxi. 414. 
 
 9. Where, in discharge of a pre-existing debt, several notes are given, con- 
 taining a usurious rate of interest, reckoned upon the amount of the debt, 
 each note is held to contain its proportional share of the illegal interest. 
 Ticonic Bank v. Johnson, xxxi. 414. 
 
 10. Upon such notes, payments were made, partly in cash, and partly in 
 notes given in substitution: — Held, that each of the substituted notes con- 
 tained a portion of the usurious interest. Ticonic Bank v. Johnson, xxxi. 414. 
 
 1 1 . And where the final balance of all the notes was paid by a new note, 
 wbich also reserved usurious interest; — Held, that the last note did not 
 reserve within itself, the amount of the illegal interest which had been in- 
 cluded in all the preceding notes, and that such amount could not legally be 
 deducted from it. Ticonic Bank v. Johnson, xxxi. 414. 
 
 12. Upon the failure of any bank of this State to pay its bUls on demand, 
 the private property of each shareholder, to the amount of his stock, is liable 
 to be levied upon the execution recovered against the bank. But the judg- 
 ment must have been recovered while the bank had a legal existence. Ban- 
 kin V. Sherwood, xxxiii. 509. 
 
 13. The official bond, given by a bank cashier, with the condition requir- 
 ed by the statute for his doings, and with condition for additional acts, though 
 invalid as a statute bond, is valid at common law, if such additions require 
 no immoral or unlawful act. Franklin Bank v. Cooper, xxxvi. 179. 
 
 14. The official bond of a cashier, does not become valid until accepted. 
 Though the law provides, that in no case shall such a bond be signed by a 
 director, yet such a bond, signed by one as surety while he was a director, 
 will be valid against him, if it was not accepted until after he had ceased to 
 be a director. Franklin Bank v. Cooper, xxxvi. 179. 
 
 .15. The bond of a bank cashier, framed to cover past as well as future 
 delinquencies, will be invalid against a surety, if his name was procured at 
 the desire of the directors, they knowing that past defalcations existed, of 
 which he was ignorant, and withholding the knowledge from him, though 
 with a suitable opportunity to communicate it. Franklin Bank v. Cooper, 
 XXXVI. 179. Same v. Stevens, xxxix. 632. Same v. Cooper, xxxix. 542. 
 
 16. The capital stock of a bank can only be assessed once, and that upon 
 the stockholders to the value of their shares ; but property composing no 
 part of its capital, so held by a bank, that no other person or corporation 
 could be legally taxed for it, as owner, is liable to be assessed to such bank. 
 Augusta Bank v. Augusta, xxxvi. 255. 
 
 17. Shares of a railroad corporation, which it may hold by an absdute 
 title, may rightfully be assessed to the bank ; and parol evidence is inadmis- 
 sible to prove that the absolute title was intended to be a conditional one. 
 Augusta Bank v. Augusta, xxxvi. 255. 
 
 18. The declarations of the cashier, giving information as to a past trans- 
 action of the bank, though such transaction pertained to his own department 
 of the business of the bank, are not admissible against the bank. — Hence, 
 where a surety on a note to the bank, having in his possession the property 
 of the principal, with which he might have secured himself by attachment, 
 sent his agent, after the pay-day, to inquire of the bank whether the note had 
 been paid ; to which inquiry, the cashier, in the banking room, declared that 
 it had been paid ; whereupon the surety, relying upon that information, sax- 
 
BANK. 57 
 
 rendered the property to the principal, who soon afterwards failed, and 
 continued to be insolvent : In a suit by the bank against the surety ; — Held, 
 that the declaration made by the cashier was inadmissible as evidence, against 
 the bank. Per Shepley, C. J., and Tbnnby and Howakd, J. J. — Rice 
 and AppiiETON, J. J., dissenting. Franldin Bank v. Steward, xxxTil. 519. 
 
 19. An individual stockholder has no authority to defend an action against 
 a banking corporation, after the charter has been repealed and the eifects have 
 gone into the hands of receivers. Merrill v. Shaw, xxxviii. 267. 
 
 20. A covenant by the vendee of certain bank shares, that he would in- 
 demnify and save harmless his vendor from any and all liabilities he may have 
 incurred as stockholder, or from any loss or damage he may sustain from or on 
 account of that capacity, except the depreciation of stock, is limited to such 
 legal liabilities which he had incurred, or the loss and damage which he might 
 sustain, growing legitimately out of his capacity as stockholder. Merrill v. 
 Shaw, XXXVIII. 267. 
 
 21. For payments made by their cashier on checks overdrawn, the bank 
 may maintain an action against the drawer. Franklin Bank v. Byram, 
 XXXIX. 489. 
 
 22. By § 49 of Bank Act, passed in 1841, no bank in this State is per- 
 mitted to take any greater rate of interest or discount, on any note, draft or 
 security, than at the rate of six per cent, a year. And banking corporations 
 are within the provisions of the statute against usury ; and when, in dis- 
 counting paper, a greater rate than the legal interest is taken or reserved, 
 such excess only can be avoided. Veazie Bank v. Paulh, xl. 109. 
 
 23. No action can be maintained by a creditor against a bank, after its 
 effects have been placed in the hands of receivers. Leathers v. Shipbuilders' 
 Bank, xl. 386. 
 
 24. Section 8, c. 164, of Act of 1855, is constitutional. Leathers v. 
 Shipbuilders' Bank, xl. 386. 
 
 25. Under R. S. of 1841, c. 69, banking corporations are liable to the 
 same penalties as individuals for taking usurious interest. Lumberman's 
 Bank v. Bearce, xii. 505. 
 
 26. The receivers of a bank, have no rights superior to those which the 
 bank had by its directors ; and the liabilities of third parties to the bank are 
 not varied by the appointment of receivers. Lincoln v. Fitch, xlii. 456. 
 
 _ 27. The president, with the knowledge of the directors, obtained a draft 
 signed in blank, and entrusted to a third party for another purpose, without 
 consideration, and without the knowledge of the drawers, and used it to 
 increase the apparent assets of the hank; — Held, that the bank stood in no 
 better condition than the person who had been entrusted with it. Lincoln v 
 Fitch, xiii. 456. 
 
 28. Notes or other securities, discounted in violation of the Act of 1841 
 c. 77, and like prohibitory provisions of statute, cannot be enforced Bich- 
 mond Bank v. Robinson, xlii. 589. 
 
 29 The violation of certain other provisions of the law, designed to regu- 
 late the general business of banks, does not affect the validity of contracts 
 between the bank and its ordinary customers. It may afford ground for an 
 injunction or work a forfeiture of the charter. Richmond Bank v. Robinson 
 XLII. 589, ' 
 
 30 A director in a bank indorsed a note which was discounted at his bank, 
 he, at the time, being liable to the bank for a greater amount than was au- 
 
58 BANKRUPTCY. 
 
 thorized by the Act of 1841, c. 77, § 19 : — Held, that, as to him, the viola- 
 tion of that provision was entirely collateral ; it did not enter into or affect 
 his contract. Bichmond Bank v. Robinson, xiii. 589. 
 
 BANKRUPTCY. 
 
 1 . In an action against husband and wife for goods sold to her before 
 marriage, where the wife, while sole, had been duly declared a bankrupt, 
 under the U. S. Act of 1841, and had petitioned for her discharge, and then 
 intermarried with the other defendant ; and, subsequently to the marriage, a 
 certificate of discharge, under a decree of the Court, was issued to her in 
 her maiden name: — Held, that such certificate was a good defence to such 
 suit. Ghadwich v. Starrett, xxvii. 138. 
 
 2. To impeach a certificate in bankruptcy on account of " some fraud or 
 willful concealment by him of his property," the " prior reasonable notice, 
 specifying in writing such fraud or concealment," required by the bankrupt 
 Act, should be by replication to the defendant's plea, seasonably filed, or by 
 written notice seasonably given, setting forth specifically, the fraud and con- 
 cealment, and wherein it consisted, as if it were a special declaration in an 
 action of the case. Chad-wide v. Starrett, xxvii. 138. Humphreys v. 
 Swett, XXXI. 192. 
 
 ■3. Where one was declared a bankrupt under the U. S. bankrupt Act of 
 1841, the personal property of the bankrupt, whether inserted in his schedule 
 of efiects or not, vested in his assignee on his appointment. And upon the 
 assignee's sale, pursuant to a decree of the Court, the property vests in the 
 purchaser. Jewett v. Preston, xxvii. 400. 
 
 4. If, during the pendency of an action, the plaintiff became a banlaupt, 
 under the U. S. bankrupt Act of 1841, and afterwards failed to support his 
 action, and judgment was rendered against him for costs of suit, his bank- 
 ruptcy, not having been interposed by him as an objection, furnishes him no 
 defence in an action upon that judgment. WilJcins v. Warren, xxvii. 438. 
 
 5. A judgment having been recovered after the debtor had filed his petition 
 and had been declared a bankrupt, under the U. S. bankrupt Act of 1841, 
 could not have been proved in bankruptcy against him, and is not discharged 
 by a certificate, obtained after the judgment was recovered. Holhrook v. 
 Foss, XXVII. 441. Hllis v. Ham, xxviii. 385. Fisher v. Foss, xxx. 459. 
 Pike V. McDonald, xxxii. 418. Leighton v. Atkins, xxxv. 118. Uran 
 V. Houdlette, xxxvi. 15. Bowley y. Bowley, xli. 542. 
 
 6. The lien preserved by the second section of the U. S.. bankrupt Act, of 
 1841, cannot exist, after the debt, judgment or other instrument, by which it 
 was upheld, has been discharged or annulled. Howe v. Handley, xxviii. 
 241. 
 
 7. But where the lien by virtue of an attachment of chattels, is discharged 
 by proceedings in bankruptcy during the pendenc}' of an action of replevin 
 of the property attached, the creditor, by R. S., c. 130, § 14, is entitled to 
 receive, from the ofiicer, interest, at the rate of twelve per cent, per annum, 
 on the value of the property for so long a time as the service of his execution 
 was delayed ; to be retained for his own use, and not applied to the discharge 
 of his judgment. Howe v. Handley, xxviii. 241. 
 
BANKRUPTCY. 59 
 
 8. Where the purchaser of the debtor's right to property attached, at a 
 sale in hankruptoy, has released to the attaching officer all claim thereto, the 
 officer cannot recover any thing on the replevin bond for the use of such debtor 
 or his assignee, although it did not appear that the assignee had observed all 
 the rules prescribed in making the sale. Howe v. Handley, xxviii. 241. 
 
 9. The simple omission of certain items, the property of the bankrupt, in 
 his schedule of assets, is not alone sufficient to sustain the allegation, " that 
 the defendant fraudulently omitted in his schedule of assets," that property. 
 Grooker v. Trevett, XXTIII. 271. 
 
 10. If, in regard to a replication to a plea in bankruptcy, that the defend- 
 ant fraudulently omitted certain property belonging to him, in his schedule, 
 the jury be instructed that if they believed the defendant " considered" this 
 property, to be the property of another person named, then they should find 
 a verdict for the defendant, is erroneous, as it might mislead the jury. Grook- 
 er V. Trevett, xxTiii. 271. 
 
 1 1 . Where the claim against a bankrupt, at the time of filing his petition, 
 was a contingency, or possibility that a claim or debt might exist, it could 
 not be proved as a claim against the bankrupt's effects, and is not discharged 
 by his certificate. Hence, if one become surety on a constable's bond, the 
 surety had no claim which could be proved under the bankrupt Act, until he 
 had sufiered an injury in consequence of so becoming surety. JElUs v. Ham, 
 XXVIII. 385. Dole v. Warren, xxxii. 94. Beed v. Pierce, xxxti. 455. 
 Lewis V. Brown, xii. 448. 
 
 12. A claim to recover damages for official neglect of duty as a constable, 
 is in form ex delicto, and is not discharged by a certificate in bankruptcy, 
 unless a judgment had been obtained upon it before the petition was filed. 
 Ellis V. Ham, xxviii. 385. 
 
 13. A debt discharged under the U. S. bankrupt Act, of 1841, is a suf- 
 ficient consideration for a promise, made after the decree of bankruptcy, to 
 pay the same demand. Gorliss v. Shepherd, xxviii. 550. Spooner v. Bus- 
 sell, XXX. 454. 
 
 14. A new promise to pay a debt, which otherwise would have been 
 discharged by proceedings in bankruptcy, made after the decree of bank- 
 ruptcy, and before the certificate of discharge, is valid and binding upon the 
 party making it. Gorliss v. Shepherd, xxvm. 550. Spooner v. Bussell 
 XXX. 454. ' 
 
 15. By the latter clause of the 8th § of the U. S. bankrupt law of 1841 
 declarmg that certain actions should not be maintained, " unless the same 
 shall be brought within two years after the declaration and decree in bank- 
 ruptcy, or after the cause of action shall first have accrued," is intended 
 merely, that no suit by or against the assignee, claiming an adverse interest 
 in any property or right of property, trdnsferrable to, or vested in, such as- 
 signee,_and no suit by or against any other person claiming an adverse in- 
 terest m the same, should be maintained, unless brought within two years 
 iierelore, an action upon a note, given by a person to a bankrupt, before the 
 decree of bankruptcy, is not barred by such limitation. Garr v. Lord, xxix. 
 
 l.vlt' ^i T f *i°! \ ^T^^*' '"^ ^^^ ""^"^^ °f ^'^ assignee, on a note given 
 by the defendant to the bankrupt, without the knowledge or consent of the 
 assignee, and before he had actual possession of such note, he may after- 
 wards ratify the act, and proceed to judgment in the same manner as if the 
 
60 BANKRUPTCY. 
 
 suit had been originally commenced by his direction. Garr v. Lord, xxix. 
 51. 
 
 17. Though a petitioner in bankruptcy may have had an equitable interest 
 in land, which had been sold by the legal owner, who had taken a note pay- 
 able to himself for the purchase money, it would not follow that the peti- 
 tioner in bankruptcy had any interest in the note ; nor would an omission to 
 specify the note in his schedule, be conclusive evidence of fraud on his part, 
 such as to invalidate his discharge. Carey v. Esty, xxix. 154. 
 
 18. The bankrupt laws of another country cannot govern our courts in 
 regard to contracts made there, excepting from a principle of comity, extend- 
 ing the right to other nations, which it demands and exercises for itself. Very 
 V. McHenry, xxix. 206. Long v. Hammond, xl. 204. 
 
 19. A discharge in bankruptcy, from the contract, according to the law of 
 the place where it is made and to be performed, is a legal bar. everywhere, 
 and extinguishes the contract. Very v. McHenry, xxix. 206. Long v. 
 Hammond, xl. 204. Mansfield v. Andrews, xii. 591. 
 
 20. The D. C. of the U. S. had no jurisdiction of a petition, filed after 
 the repeal of the bankrupt Act, although it had been made, signed and sworn 
 to, prior to said repeal, for the purpose of being filed ; and a discharge 
 granted upon such petition, is no bar to a contract due before the signing of 
 such petition. Wells v. Brackett, xxx. 61. 
 
 21. The purchaser of a bankrupt's right in a tract of land, if he never 
 was a creditor of the bankrupt, nor if he represents any creditor, takes only 
 the rights in law and equity, which the bankrupt had at the time of his 
 bankruptcy. Baker v. Vining, xxx. 121. Kittredge v. McLaughlin, xxxiii. 
 327. 
 
 22. A plea of bankruptcy to an action on a promissory note, is bad, if it 
 do not allege, that the debt sued for was not of the classes excepted in the 
 first section of the bankrupt Act. Frost v. Tihbets, xxx. 188. 
 
 23. A discharge in bankruptcy, operates not to suspend, but to annul, the 
 validity of a promissory note, due from a bankrupt. The. indorsement of 
 such a note, after discharge, is of no efifect. And a new promise by the 
 bankrupt to the payee, after the discharge, cannot be enforced by the 
 indorsee. White v. Gushing, xxx. 267. Porter v. Porter, xxxi. 169. 
 Wardwell v. Foster, xxxi. 558. 
 
 24. A new promise to pay a debt proveable in bankruptcy, after the filing 
 of the petition of the defendant, and before the enactment of the statute of 
 1848, c. 52, was binding. That statute is prospective only. Spooner v. 
 Russell, xxx. 454. Otis v. GazUn, xxxi. 567. Williams v. Bohiins, 
 XXXII. 181. 
 
 25. A promise, by a bankrupt, to give a new note for a debt which has 
 been discharged in laankruptcy, is not an express promise to pay the debt, 
 but a mere recognition or acknowledgment of the debt, and creates no legal 
 liability to pay the same. Porter v. Porter, xxxi. 169. 
 
 26. If a creditor, whose claim has been proved and allowed in bankruptcy, 
 would avail himself of any fraud or willful concealment or unlawful preference 
 of creditors on the part of the bankrupt, he can do it only by objecting to the 
 granting of a discharge to the bankrupt, in the court of bankruptcy. And 
 he is precluded from maintaining a suit upon any claim thus proved and 
 allowed. Humphreys v. Swett, xxxi. 192. 
 
BANKRUPTCY. 61 
 
 27. A new promise made by a bankrupt revives the debt. It need not be 
 declared upon as the cause of action, but may be proved as a bar to the 
 operation of the discharge. Otis v. Oazlin, xxxi. 567. 
 
 28. The following language spoken by a bankrupt to his creditor; — "as 
 you have used me well, you shall not lose a cent by my going into bankruptcy. 
 I expect to get through this season, and wiU pay a part of it next fall, and 
 the rest as fast as I can." — And, in a subsequent conversation, defendant 
 told plaintiff; — " I have got through, cannot pay now, wUl pay as soon as I 
 can;" — constitute conditional promises; and in order to recover, plaintiff 
 must show defendant's ability to pay. Patten v. Ellingwood, xxxii. 163. 
 
 29. The purchaser of a bankrupt's interest in land, at an authorized sale 
 by the assignee, takes the land freed from any incumbrances thereon, made 
 by the bankrupt, in fraud of his creditors, although the license authorized 
 the assignee to sell an equity, and although there is no evidence that the 
 assignee gave the notice required except what is contained in the deed. 
 Dwinel V. Perley, xxxil. 197. 
 
 30. The limitation in the bankrupt Act of the U. S., § 8, applies to actions 
 in the name of the assignee, though brought wholly for the benefit of a third 
 party. Pihe v. Lowell, xxxii. 245. 
 
 31. Sales of a bankrupt's estate, by his assignee in bankruptcy, under the 
 U. S. bankrupt Act of 1841, were valid, only when authorized by the court. 
 And the transfer of a mortgage must recite the decree of bankruptcy and the 
 appointment of the assignee. Warren v. Homestead, xxxiii. 256. 
 
 32. A right which may be yielded to the bankrupt by the waiver of a pre- 
 vious forfeiture, after the filing of a petition to be decreed a bankrupt, does 
 not pass by an assignee's sale. And the defendant, not being a creditor, can- 
 not assume that character to resist his title. Kittredge v. McLaughlin, 
 XXXIII. 327. 
 
 33. If a bankrupt, since his application in bankruptcy, have purchased an 
 equity of redeeming mortgaged land, the mortgagee, (though he have also 
 bought the bankrupt's right to the land by a sale in bankruptcy,) cannot bar 
 the bankrupt's right to redeem, by merely showing, that, at the time of such 
 application, the bankrupt had a conditional bond for a conveyance to him of 
 the equity, unless the mortgagee shall have performed the condition of the 
 bond. Before the purchaser could become the owner of the land subject to 
 the mortgage, he must, by a suit in equity, in which all opposing interest 
 could be examined, obtain a conveyance of it. Kittredge v. McLaughlin, 
 XXXIII. 327. 
 
 34. A discharge in bankruptcy is no bar to the creditor's right of action 
 against the debtor, on a covenant of warranty, when the breach occurs after 
 such discharge. Beed v. Pierce, xxxvi. 455. 
 
 35. An outstanding mortgage constitutes a breach of the covenant of free- 
 dom from incumbrances, immediately after the delivery of the deed ; and if 
 such delivery be prior to an application in bankruptcy, it is a proveable claim 
 against him. Peed v. Pierce, xxxvi. 455. 
 
 36. Sect. 8, of the bankrupt Act of the U. S., passed 1841, does not ap- 
 ply to conveyances of real estate. Warren v. Miller, xxxYiii. 108. 
 
 37. Payment for work done for another, under a parol promise that it 
 should go in payment of a debt from which he had been discharged in bank- 
 ruptcy, cannot be recovered, although no settlement has been made and the 
 accounts of the parties remain unliquidated, notwithstanding the Act of 1848, 
 c. 52. Sampson v. Curtis, xxxix. 398. 
 
62 BASTARDY. 
 
 38. When a foreign court of bankruptcy has jurisdiction of the^ person 
 applying for the benefit of the bankrupt Act of that country, and a decree is 
 made in conformity with the requirements of the law of that country, it 
 operates to discharge the contracts of the applicant, and cannot be impeached 
 in a subsequent action upon such contracts prosecuted in this State by a 
 citizen of that country. Long v. Hammond, xi. 204. 
 
 39. Bankruptcy rightfully pleaded in a suit, commenced prior to the pro- 
 ceedings in bankruptcy, operates to dissolve any attachment made in the suit. 
 Bowley v. Bowley, xli. 542. 
 
 40. When the protection of the bankrupt Act is invoked, the defendant 
 must show that he is within its provisions. Mansfield v. Andrews, xii. 591. 
 
 41. A. entrusted B. with his money to take to a distant place to pay A.'s 
 note, which money B. appropriated to his own use, after which B. obtained 
 his discharge under U. S. bankrupt Act : — Held, that B. did not act in the 
 " fiduciary capacity" contemplated by that Act ; and that his discharge was a 
 bar to an action for the money. Phillips v. Bussell, xlii. 360. 
 
 See Action, 46, 74. 
 
 FoKEiGN Laws, 1, 2. 
 
 BARGAIN AND SALE. 
 
 See CONTETANCE. 
 
 Sale. 
 
 BASTARDY. 
 
 1 . Where a mother has recovered judgment upon a previous adjudication, 
 that the putative father of her illegitimate child should pay to her a sum of 
 money, she is entitled to have the execution running against his body; 
 notwithstanding he may have been discharged, on taking the poor debtor's 
 oath, fi-om an imprisonment, which had been ordered upon his refusal to 
 give bond for the performance of the original adjudication. McLaughlin v. 
 Whitten, xxxii. 21. 
 
 2. In a bastardy process, in order to authorize the admission of the com- 
 plainant as a witness, it is not indispensable that she make her complaint 
 before a magistrate prior to the birth of the child. Siveft v. Stubbs, xxxiii. 
 481. Beals v. Furbish, xxxix. 469. 
 
 3. It is indispensable to the success of a complaint under the bastardy Act, 
 that the complainant be admitted and testify, as a witness. Blake v. Junkins, 
 xxxiv. 237. 
 
 4. In order to entitle the complainant to be a witness in her own cause, it 
 must be proved, that she accused the respondent as the father of the child 
 of which she is about to be delivered, at the time of her travail, and remain 
 constant in such accusation. Such an accusation is too late, if not made 
 until the child has been expelled from the body of the mother, though made 
 
BETTERMENTS. 63 
 
 before the connecting cord is severed and before tbe child has breathed. 
 Blake v. Junkms, xxxy. 433. Beah v. Furbish, xxxix. 469. 
 
 5. A bastardy process pertains to the civil and not to the criminal depart- 
 ment of the law. Hence, a term of the court, held for the transaction of 
 criminal business, has no jurisdiction, and its proceedings thereon are merely 
 void. Mahoney v. Crowley, xxxvi. 486. Smith v. Lint, xxxvil. 546. 
 
 6. If, pending a complaint under the bastardy Act, and before trial, the 
 child dies, the putative father is, nevertheless, chargeable with the expenses 
 from its birth. Smith v. Lint, xxxvii. 546. 
 
 7. The accusation and examination of the complainant under the bastardy 
 Act, are not required to contain allegations of an accusation in the time of 
 her travail, or of constancy therein, nor is it necessary to state the precise 
 time when the child was begotten ; but if charged as having transpired be- 
 tween the first and fifteenth of the month recited, it is sufficient. Beats v. 
 Furbish, xxxix. 469. 
 
 8. The requirement of " accusing" at the time of her travail is satisfied, 
 if her accusation is made during the interval of her pains. Beats v. Furbish, 
 XXXIX. 469. 
 
 9. If, in her declaration, she allege the child was begotten on or about a 
 certain day, it is a compliance with the statute. The certainty in criminal 
 matters is not required in these proceedings. Beats v. Furbish, xxxix. 
 469. 
 
 10. After a verdict against the respondent in a bastardy process, it is no 
 ground for a new trial, that the jury found the child was begotten at a later 
 time than that charged in the complaint and declaration. Beats v. Furbish, 
 XXXIX. 469 
 
 BETTERMENTS. 
 
 1. In a writ of entry, by a party to whom a portion of land had been set off 
 in severalty, it was held, if the tenant should prove, that, for more than six 
 years prior to the filing of such petition for partition, he, and those under whom 
 he claimed, had been occupying and improving the same portion of land, his 
 right to betterments would not be afi"ected by the partition. Tilton v. Palm- 
 er, XXXI. 486. 
 
 2. The occupation by an administratrix cannot be added to that of an in- 
 testate, to make up the six years necessary to give a right to betterments. 
 In order that two occupations be united for that purpose, the title must pass 
 by some contract from the former to the latter. Bulten v. Arnold, xxxi; 583. 
 _ 3. To entitle a tenant to betterments under R. S., of 1841, c. 145, § 23, 
 his possession must be open, notorious, exclusive and adverse. Pratt v' 
 Churchill, xlii. 471. 
 
 4. The Act of 1844, c. 6, § 1, providing, that the tenant for years may 
 recover betterments against the owners of the expectant estate, does not affect 
 any made prior to the passage of the Act. Pratt v. Churchill, xm. 471. 
 See Revbksionek, &c. 
 
64 BILLS OF EXCHANGE AND PEOMISSOBT NOTES. 
 
 BILLS OF EXCHANGE AND PROMISSORY NOTES. 
 
 L FORM, CONSTRUCTION, AND VALIDITY. 
 
 II. NEGOTIABILITY AND TRANSFER. 
 
 III. ACCEPTANCE. 
 
 rv. PRESENTMENT, DEMAND AND NOTICE. 
 
 V. LIABILITIES AND REMEDIES OF THE DIFFERENT PARTIES. 
 
 VI. ACTIONS ON BILLS AND NOTES. 
 
 VII. PLEADINGS AND EVIDENCE. 
 
 I. FORM, CONSTRUCTION, AND VALIDITY. 
 
 (a) GENEBA.L BEaTIISIIES. 
 
 (b) CONSTKUOTION, 
 
 (c) Consideration. 
 
 (d) When a disohaege op the qeisinal cause op action. 
 
 (e) When not valid. 
 
 (f) Notes payable in specipic articles. 
 
 (a) General requisites. 
 
 1 . A promissory note must contain a promise to pay money absolutely and 
 unconditionally ; and if it provides for the performance of some other act, 
 or in the alternative, it loses a distinctive quality of a promissory note. Den- 
 nett V. Goodwin, xxxii. 44. Bunker v. Athern, xxxt. 364. 
 
 2. And it must be for a fixed and certain, and not a variable amount. 
 Dodge v. Emerson, xxxiv. 96. 
 
 3. It is essential to a bill of exchange or note, that it should be payable in 
 money, absolutely, and without any contingency which would embarrass its 
 circulation. Contingencies as to the amount, the event, the fund, or the 
 person, render them invalid for commercial purposes. Byram v. Hunier, 
 xxxTi. 217. 
 
 4. Drafts drawn in this State, and payable in other States, are foreign bills 
 of exchange. Ticonic Banh v. StacJcpole, xn. 302. 
 
 5. A note payable in another State, may be treated as a foreign bill so far 
 as to admit the protest of a foreign notary as evidence in a suit against the 
 indorser. Ticonic Banh v. StacJcpole, xli. 302. 
 
 (b) Construction. 
 
 6. A paper given by defendant to plaintiff, promising to pay him " one 
 hundred and twenty-three and 6-100, on demand and interest, with the figures 
 $123,06, in the margin, is a note payable in money, and for a sum certain. 
 Goolbroth V. Purinton, xxix. 469. 
 
 7. Promissory notes, made payable at a time and place certain, and not 
 payable at a place certain, on demand at or after the expiration of a time 
 specified, are not affected by the Act of 1846, c. 218. Stovie v. Golhurn, 
 XXX. 32. Patterson v. Vose, xliii. 552. 
 
 8. The words, "property of A. B." written in pencil upon the margin of 
 an indorsed negotiable note, are not, of themselves, proof that A. B., at the 
 
BILLS OF EXCHANGE AND PROMISSORY NOTES. 65 
 
 time of the trial, in a suit upon the note, had any interest in it. Sibley v. 
 Lumhert, xxx. 253. 
 
 9. When a person, not the payee, writes his name in blank upon the back 
 of a negotiable promissory note, at its inception, it is to be regarded as done 
 for the same consideration with the expressed contract, and he will be holden 
 as a surety and an original promisor; but if done subsequent to the date of 
 the note, and without a prior indorsement by the payee, it is presumed to 
 have been done for a different consideration, and the party will be regarded 
 as a guarantor ; but if affixed after an indorsement by the payee, the party 
 will be treated as a subsequent indorser. If made without date it is presumed 
 to have been done at inception. Golburn v. Averill, xxx. 310. Irish v. 
 Cutter, XXXI. 536. Adams v. Hardy, xxxii. 339. Malbon v. Southard, 
 XXXVI. 147. Lowell v. Gage, xxxviii. 35. 
 
 10. By the common law, a note made. payable to a married woman belongs 
 to her husband. Greenleaf v. Hill, xxxi. 562. 
 
 11. The day of the date of a promissory note, payable in a specified time 
 after date, is to be excluded. Ammidown v. Woodman, xxxi. 580. 
 
 12. If there be several notes of the same date, payable in six months, six 
 months from date, and six months after date, they aU have the same pay-day. 
 Ammidown v. Woodman, xxxi. 580. 
 
 13. Upon a note payable in such articles as the creditor shall select from 
 those which the debtor is manufacturing at a specified place, a legal infer- 
 ence arises, that the payment is to be made at that place. Dunn v. Marston, 
 XXXIV. 379. 
 
 14. An instrument in writing, acknowledging the receipt of money from 
 the plaintiff, and promising to pay it upon a note due from him to a third 
 person, and cause it to be indorsed thereon, requires no more than that the 
 promisor should cause the indorsement to be made ; and as he might do this 
 without the payment of money, his promise does not constitute a promissory 
 note. Bunker v. Athearn, xxxv. 364. 
 
 15. Where one, not otherwise a party to a note, puts his name upon the 
 back before it is delivered to the payee, at the request of the maker, he 
 thereby becomes an original promisor, although he adds to his name 'the 
 words, "responsible without demand or notice." Malbon v. Southard, 
 xxxvi. 147. Lowell v. Gage, xxxviii. .35. 
 
 16. Or if done at a subsequent time, in pursuance of an agreement made 
 with the payees at the time the contract, out of which it originated, was 
 made, he is chargeable as an original promisor. Leonard v. Wildes, xxxti 
 265. 
 
 17. A memorandum and promise in writing, by the makers of a note to 
 pay it " in any time within six years" from the date of the writing, is, in law 
 a promise to pay on demand. And such new promise, although attested by a 
 witness, 18 not a promissory note, but is subject to the limitation bar of six 
 years. Young v. Weston, xxxix. 492. 
 
 18. The character in which the parties to a note sign the same, is presum- 
 ed to be correctly exhibited by the writing itself, until the contrary be proved 
 Lord V. Moody, xli. 127. J if ■ 
 
 (c) Consideration. 
 
 19. The conveyance of land, subject to a mortgage made by a former own- 
 
 9 
 
66- BILLS OF EXCHANGE AND PKOMISSOEY NOTES. 
 
 er, on condition that certain personal services should be performed by the 
 mortgager, is a sufficient consideration for the purchase money. Hoyt v. Brad- 
 ley, XXVII. 242. 
 
 20. A partial failure of consideration of a note, given in payment for land 
 sold, not arising out of a failure of title, but out of fraudulent misrepresenta- 
 tions respecting the quantity of timber trees then upon it, may be given in 
 evidence, in defence, in a suit upon such note, while it remains in the hands 
 of the seller, or of one having no superior rights. Hammatt v. Emerson, 
 XXVII. 308. 
 
 21. And if the purchaser contracts to sell a portion of the land to another, 
 and gives to the seller in part payment, a note, signed by such other, as prin- 
 cipal, and by the purchaser as surety, this does not affect the relations between 
 the seller and purchaser, nor take away the right of the latter to set up fraud 
 in the contract, as a defence. Hammatt v. Emerson, xxvil. 308. 
 
 22. Between the original parties, a partial failure of consideration, though 
 the amount of it be unliquidated, may be proved by the defendant in mitiga- 
 tion of damages ; and the jury, upon the evidence, may determine the amount 
 of failure. Herbert v. Ford, xxix. 546. 
 
 23. Ordinarily, a promissory no'te, given for a mere quitclaim deed of land, ' 
 cannot be avoided for defect in the grantor's title ; but where the parties have 
 stipulated in ^vriting, that the note is not to be paid, unless a title was convey- 
 ed, it is otherwise. Bean v. Flint, xxx. 224. 
 
 24. When a note, payable on time, is given for the amount of one over-due 
 against the same maker, no principle of law is violated by an agreement of 
 the parties, that the old note should be holden by the payee as collateral to 
 the new one. And the extension of the pay-day is a sufficient consideration 
 to uphold a new note. And an agreement to cancel the old note upon the 
 payment of the new one, is a sufficient consideration. Langley v. Bartlett, 
 xxxiii. 477. 
 
 26. A partial failure of title to land conveyed, constitutes no defence to a 
 note given in payment for it. Morrison v. Jewell, xxxiv. 146. 
 
 27. A note, given to discharge all claims of a creditor under levies upon 
 the interest of a mortgagee in mortgaged land, after the time of redemption 
 had expired, is not void for want of consideration. BandaM v. Farnham, 
 xxxvi. 86. 
 
 28. A negotiable note given by defendant, for which he received one of the 
 same amount, is made upon good consideration, and its payment cannot be 
 avoided, though it came into the hands of the plaintiff after its maturity. 
 Dockray v. Dunn-, xxxvii. 442. 
 
 29. A note, given in renewal of one already paid, is without consideration. 
 Smith V. Taylor, xxxix. 242. 
 
 30. The relinquishment of an attachment is a sufficient consideration. 
 Smith V. Taylor, xxxix. 242. 
 
 31. A note, given for interest above the rate of six per cent, per annum, 
 for the forbearance of payment of a sum of money, is without legal consider- 
 ation. Goodrich V. Buzzell, XL. 500. 
 
 (d) Wheji a discharge of the original cause of action, 
 
 32. There is no presumption in law, that an unnegotiable note, of the same 
 amount as a pre-existing debt, is payment of it. Bartlett v. Mayo, xxxiii. 
 518. 
 
BILLS OF EXCHANGE AND PROMISSORY NOTES. 67 
 
 33. Negotiable paper, taken for a prior debt, is presumed to be taken as 
 payment. Bangor v. Warren, xxxiv. 324. Fowler v. Ludwig, xxxiv. 455. 
 Shumway v. Beed, xxxiv. 560. Gooding v. Morgan, xxxTll. 419. 
 
 34. But it is not conclusive, and may be rebutted by proof of circumstances 
 showing that it was not the creditor's intention so to receive it. Fowler v. 
 Ludwig, XXXIV. 455. Shumway v. JReed, xxxiv. 560. 
 
 35. If negotiable paper be accepted in ignorance of the facts or under a 
 misapprehension of the rights of the parties, the presumption might be con- 
 sidered as rebutted. Fowler v. Ludwig, xxxiv. 455. 
 
 36. If the negotiable paper accepted is not binding upon all the parties 
 previously liable, the presumption of payment may be considered as repelled. 
 Fowler V. Ludwig, xxxiv. 455. 
 
 37. Or if the paper of a third person be received not expressly in payment, 
 the presumption may be considered as repelled. Fowler v. Ludwig, xxxiv. 
 455. 
 
 (e) When not valid. 
 
 38. If one, without the consent of the maker, affix his name as subscribing 
 witness to a note which had been executed without attestation, it is a material 
 alteration of the note, and will vitiate it ; unless it be done without intention 
 to defraud. Thornton v. Appleton, xxix. 298. 
 
 39. An attestation to a note, at the time of its inception, and in the pres- 
 ence of the maker, though unrequested to do so, gives it the legal qualities of 
 a witnessed note. Farnsworth v. Rowe, xxxiii. 263. 
 
 40. A name, written at the place commonly used for attestations, is pre- 
 sumed to be so done as a subscribing witness ; it not being necessary for the 
 subscribing witness to a note to write thereon for what purpose he affixes his 
 signature. Farnsworth v. Rowe, xxxiii. 263. 
 
 41. If one of two joint debtors, though not co-partners, give a note for a 
 debt, signed in their joint names as co-partners, a subsequent promise by such 
 other debtor to pay the note, made with a full knowledge of the facts, renders 
 the note valid against both. Waite v. Foster, xxxiii. 424. 
 
 42. At common law, the promissory note of a married woman, as a general 
 proposition, was absolutely void ; and that rule was not changed by statute 
 of 1844. Sowe v. Wildes, xxxiv. 566. 
 
 43. The principal of a note, already bearing the signatures of the sureties, 
 put his own name upon it, above the names of the sureties, in the presence of 
 A., who then wrote his name upon it as subscribing witness, in the absence of 
 
 the sureties, and without limitation, which note was delivered the next day: 
 
 Held, that such attestation was not a material alteration of the note, and the 
 attestation did not affect the sureties. Hilton v. Houghton, xxxv. 143. 
 
 44. A promissory note given to their treasurer, for the penalties belonging 
 to a town upon the conviction of the defendant, for a violation of § 6, c. 205, 
 of the Acts of 1846, is for an illegal consideration and void. Kendrick v! 
 Crowell, XXXVIII. 42. 
 
 45. No action can be maintained against a surety upon a promissory note, 
 made payable to a bank or order, which was never discounted or negotiated 
 by the bank, but which was sold by the principal to a third person, although 
 the bank authorize a suit to be prosecuted in their name. Manufacturers' 
 Bank v. Cole, xxxix. 188. 
 
68 BILLS OF EXCHANGE AND PROMISSORY NOTES. 
 
 46. A note, taken by an agent from his principal, for money advanced by 
 him in payment for liquors purchased for his principal, does not come within 
 the prohibition of the statute of 1851, c. 211, § 16. Parker v. Tuttle, xli. 
 349. 
 
 (f) Notes 'payable in specific articles. 
 
 47. Notes payable in money or other things, in the alternative, are barred by 
 the statute of limitations, although attested. Dennett v. Goodwin, xxxii. 44. 
 
 48. Upon a note payable in such articles as the creditor shall select from 
 those -which the debtor is manufacturing at a specified mill, a legal inference 
 arises that the payment is to be made at that mill. Dunn v. Marston, 
 XXXIV. 379. 
 
 49. Upon a note payable in specific articles, on demand, the defendants are 
 bound to have, at all times at the place of delivery, enough articles of the kind 
 mentioned to enable them to comply with their stipulation ; and when the de- 
 mand is made at a reasonable hour and at the proper place, it will be equally 
 available whether the defendants are present or absent. Dunn v. Marston, 
 xxxiT. 379. 
 
 50. An action on a note, payable in "legal services on demand," cannot be 
 maintained, without proof of a demand, and the services desired of the 
 promisor made known to him ; unless it is shown that he is disabled or dis- 
 qualified to perform the contract. Haskell v. Matthews, xxxTii. 541. 
 
 51. The promisee has a reasonable time in which he may require such 
 services to be performed, without unexpected expense or inconvenience ; but 
 the promisor is not bound to remain in the place or vicinity for any period it 
 might please the promisee to wait before he made a demand for its perform- 
 ance. Haskell V. Matthews, xxxvii. 541. 
 
 52. A promisor's removal out of the State, after a reasonable time has 
 elapsed, will not render him liable, unless an occasion for such services be 
 proved. Haskell v. Mathews, xxxtii. 541. 
 
 II. NEGOTIABILITY AND TRANSFER. 
 
 53. A blank indorsement is sufficient of itself to transfer the right of 
 action to any lona fide holder of a negotiable note. Myrick v. Hasey, 
 xxvii. 9. 
 
 54. The words, " I hereby guaranty the payment of the within note, K. 
 D. H.," written by the payee upon the back of a negotiable note, is a sufficient 
 indorsement thereof, though the guaranty is not negotiable. Myrick v. Hasey, 
 
 XXTII. 9. 
 
 55. Any illegality in the transfer of a note negotiable, will vitiate the title 
 of one who derives it through a violation of law to which he was a party ; 
 although one not a party to such violation, and holding it hona fide, may 
 recover it. Sproule v. Merrill, xxix. 260. 
 
 56. The indorsement of a note made by a bankrupt, after his discharge, is 
 of no effect ; and a new promise to the payee after the indorsement, is not 
 negotiable. White v. Gushing, xxx. 267. 
 
 57. A negotiable note, payable to a co-partnership firm, may be transferred 
 by indorsement made by one of the co-partners, in the name of the firm, after 
 a dissolution of the co-partnership, if such dissolution was unknown to the 
 indorsee. Cony v. Wheelock, xxxiii. 366. 
 
BILLS OF EXCHANGE AND PROMISSORY NOTES. 69 
 
 58. An indorsement " without recourse" of a promissory note, creates no 
 liability upon the indorser, and operates only as a transfer of the note. Waite 
 V. Foster, XXXIII. 424. » 
 
 59. The propert)' in notes secured by a mortgage would pass by delivery 
 and without any indorsement, the mortgage having been assigned. Coombs 
 V. Warrm, xxxiv. 89. 
 
 60. A -vvritten promise, though in terms payable to order, is to be regarded 
 as a simple contract and not negotiable, unless it be for a fixed sum of money, 
 and not for a variable amount. Hence, a promise for a certain sum and for 
 another sum is not negotiable. Dodge v. Emerson, xxxiv. 96. 
 
 61. A bill or note may be negotiated after it has been paid, if no person 
 would thereby be made liable upon it, who would otherwise be discharged. 
 Eaton V. McKown, xxxiv. 510. 
 
 62. Whoever indorses a bill to another and comes again into the possession 
 of it, may be regarded as the owner, and recover it with or without striking 
 any special indorsement. Eaton v. McKown, xxxiv. 510. 
 
 63. An indorsement of a note to a bank, without specifying the particular 
 bank, (there being a blank place in which to insert the name,) is a blank in- 
 dorsement, which any lawful holder of the note may so alter as to insert his 
 own name. Adams v. Smith, xxxt. 324. 
 
 64. The indorsement of a note by a payee, "on account of the payee," 
 made to a bank not specified, is not restrictive. Adams v. Smith, xxxv. 324. 
 
 65. A negotiable note transferred by delivery only, before it became payable, 
 may be indorsed by the administratrix of the deceased payee, with the same 
 efiect as if done by the payee personally. Malbon v. Southard, xxxvi. 147. 
 
 66. An order for a specified sum, drawn upon an incorporated company, 
 and payable to order, is not deprived of its negotiability by a statement truly 
 contained therein, that it was drawn in compliance with a vote of the company. 
 Byram v. Hunter, xxxvi. 217. 
 
 67. A negotiable promissory note is none the less assignable, because its 
 transfer by indorsement so vests the title in the assignee as to enable him to 
 maintain an action upon it in his own name. Fogg v. Babcock, XLi. 347. 
 
 68. The indorsement of a note by the payee, is presumed to have been made 
 at the date of the note, in the absence of proof. But proof that it was not 
 then made, throws the onus upon the indorsee to show that the indorsement 
 is genuine, and that it was made prior to the commencement of the action. 
 Parker v. Tuttle, xii. 349. 
 
 See AcTiojT, 15. 
 
 Bankeuptct, 23. 
 
 in. ACCEPTANCE. 
 
 69. It is not necessary to the validity of an acceptance, that the name of 
 the acceptor should appear. Any language indicating the acceptance written 
 by him is suificient. Phillips v. Frost, xxix. 77. 
 
 70. A verbal acceptance is valid ; and the holder may take a special accept- 
 ance. Phillips V. Frost, xxix. 77. 
 
 71. As between drawer and drawee, a promise or agreement to accept a bill 
 which should afterwards be drawn, has never been deemed an acceptance. 
 But, as between the drawee and a third person who has taken a bill upon the 
 
70 BILLS OF EXCHANGE AND PROMISSORY NOTES. 
 
 faith of a promise to accept, it has been held an. acceptance ; but in such 
 case, when the promise is in writing, it should describe the bill to be drawn 
 in terms not to be mistaken, so as to identify and distinguish it from all others ; 
 and that it should be received by the person taking it upon the faith of such 
 promised acceptance. Mercantile Bank v. Cox, xxxviii. 500. 
 
 rv. PRESENTMENT, DEMAND AND NOTICE. 
 
 (a) When necessary. 
 
 (b) By whom and when to be made. 
 
 (c) At what time and place. 
 
 (d) Waiter and modification op, by agreement oe usaoe. 
 
 (e) Protest. 
 
 (a) When necessary. 
 
 72. A letter addressed by the maker to the holder of a promissory note, 
 informing him that he should not be able to pay it at maturity, and requesting 
 an extension, will not excuse a presentment at the maker's place of residence, 
 at its maturity. Pierce v. Whitney, xxix. 188. 
 
 (b) By whom and when to he made. 
 
 73. Verbal notice to an indorser, residing in the town where the note is 
 payable, is sufficient. Ticonic Bank v. Stackpole, xli. 321. 
 
 74. In Massachusetts, a demand of payment, of an indorser of a promis- 
 sory note, must convey information of its dishonor, and should be made before 
 the fourth .day after the last day of grace. Littlehale v. Mdberry, xliii. 264. 
 
 (c) At what time and place. 
 
 75. A demand at either bank, in a specified city or town, is sufficient to 
 charge the indorser of a note, made payable at any bank in said place. No 
 previous notice need be given to him, at what bank the holder will make the 
 demand. Langley v. Palmer, xxx. 467. 
 
 (d) Waiver or modification of, hy agreement or usage. 
 
 76. "Where a note on demand, having thereon a blank indorsement by the 
 payee, was received of him by the holder, with the understanding, of which the 
 indorser was perfectly conusant, that demand on the maker and notice to the 
 
 ' indorser were not intended to form a condition upon which alone the indorser 
 should become liable : — Held, that demand and notice were thereby waived. 
 Fullerton v. Eundlett, xxvii. 31. 
 
 77. The parties to a note, deposited in a bank in Boston for collection, 
 cannot be affected by a usage in the other banks, which has no existence in 
 the bank where it is lodged. Pierce v. Whitney, xxix. 188. 
 
 78. A promise to pay, with a knowledge of the facts, would bind the in- 
 dorser, although there had been no legal demand or notice. McPhetres v. 
 Malley, xxxii. 72. Townssnd v. Wells, xxxii. 416. Byram v. Hunter, 
 xxxvi. 217. Patterson v. Vose, xliii. 552. 
 
 79. Proof that the indorser had received property of the maker for security, 
 
BILLS or EXCHANGE AND PROMISSORY NOTES. 71 
 
 will not excuse the indorsee from showing demand and notice, unless the 
 property, so taken, was sufficient, or was all that the maker owned. Mar- 
 shall V. Mitchell, xxxiv. 227. Marshall v. Mitchell, xxxv. 221. 
 
 80. If security is taken before the maturity of the note, it is not material 
 whether it was before or after its negotiation. In either case it furnishes an 
 indemnity. Marshall v. Mitchell, xxxv. 221. 
 
 81. The payee of a note, after having indorsed and negotiated it, waives 
 demand and notice, by agreeing with the maker to pay it and take it back 
 into his own hands. And such agreement enures to the benefit of the indorser. 
 Marshall v. Mitchell, xxxv. 221. Patterson v. Vose, xiiii. 552. 
 
 (e) Protest. 
 
 82. The word "certificate" in the sixth section of the Act of 1841, c. 44, 
 § 12, is equivalent to the word "protest" in the twelfth section, when it is 
 under the hand and seal of the notary. Ticonic Banh v. Stachpole, xli. 302. 
 
 83. By the common and commercial law, the certificate of a foreign notary, 
 under his hand and notarial seal, of the presentment of a foreign bill for ac- 
 ceptance or payment, and of his protest, is received in all courts. Such pro- 
 tests prove themselves. Ticonic Bank v. Staclcpole, xli. 321. 
 
 84. A notary's certificate of protest, certified, " I duly notified I. S., indorser 
 of said note, of said non-payment:" — Held, that it must have been verbal. 
 Ticonic Bank v. Stackpole, xli. 321. 
 
 85. If, from the whole protest, it appear, that notice was legally given, the 
 insertion of the word " duly," cannot impair its eflfect. Ticonic Banh v. 
 Stackpole, xli. 321. 
 
 86. A notarial certificate, that he "exhibited the note at the place of busi- 
 ness of the promisors, and demanded payment thereof, was answered by the 
 person in charge, that the promisors had left no funds there to pay said note, 
 and that, said note remaining unpaid, he duly notified the indorsers by -written 
 notices sent them by mail, and that this was done at the request of proper 
 authority, the time limited and grace having expired," afibrd reasonable infer- 
 ence that he stated substantially these facts in the written notices. Lewiston 
 Falls Bank v. Leonard, xliit. 144. 
 
 87. Notarial protests, relied on by the plaintiff' and testified tb by the notary 
 as genuine, corresponding with his notarial record and descriptive of the notes 
 in suit, are sufficient evidence to charge the indorser ; and the production by 
 the defendant of other and like notices, can have no tendency to invalidate 
 those relied upon, or to show the want of legal notice. Gummings v. Mer- 
 rick, XLiii. 203. 
 
 V. LIABILITIES AND KEMEDIES OF THE DIFFERENT PARTIES. 
 
 88. If a note be indorsed, after it has become over-due, thus : — " indorser 
 not holden, D. S." — the indorser is nevertheless liable therefor,~if a pay- 
 ment had been made upon the note, or a set-off can be claimed, when the note 
 exhibits no indication of them, and the indorser leaves the indorsee in entire 
 ignorance of them. Ticonic Bank y.'- Smiley, xxvii. 225. 
 
 89. If the indorser of a note has paid to the indorsee a part thereof, he 
 may recover the amount so paid of the maker, in an action for money paid, 
 although a part of the money still remains unpaid. And it is wholly im- 
 
72 BILLS OF EXCHANGE AND PROMISSORY NOTES. 
 
 material whether such payment be made in money or other property, if it be 
 received as a payment of so much. Garnsey v. Allen, xxvii. 366. 
 
 90. If the legal interest is in the payee of a negotiable note, he can au- 
 thorize an action to be brought by an indorsee, in the name of the latter, for 
 his benefit. Southard v. Wilson, xxix. 56. 
 
 91. The legal inference is, that the title to a note is in the holder of it, or 
 in some person, under whose authority, and for whose benefit he acts. South- 
 ard V. Wilson, XXIX. 56. 
 
 92. The drawee of an order of $55, paid $34,75, and indorsed upon it that 
 the payee had received that sum, " it being aU that the drawee agrees to pay, 
 unless the drawer intended the order to be exclusive of $20,25, which the 
 drawee had previously paid without order." It was afterwards ascertained 
 that the drawer intended the whole $55 should be paid by the drawee, of 
 which the drawee was notified by a new request from the drawer : — Held, the 
 drawee was liable for the balance. Phillips v. Frost, xxix. 77. 
 
 93. The maker of a note, sued by one having a legal interest in it, has no 
 right to inquire into the disposition of the proceeds of it ; but if the plaintiff 
 can lawfully receive payment, the defendant is protected in making it, what- 
 ever may become of the proceeds. Stevens v. Hill, xxix. 133. 
 
 94. One who sells a promissory note by delivery, upon which the names of 
 indorsers have been forged, is not liable upon an implied promise, to refund 
 the money received therefor, if he sold the same as property, and not in pay- 
 ment of a debt, and if he did not know of the forgery. But if it was sold in 
 payment of a debt due, or then created, the debt, not being paid by it, may 
 be recovered. Baxter v. Duren, xxix. 434. 
 
 95. In an action by the purchaser against the seller of such a note, so sold, 
 the broker, through whom the sale was negotiated, is a competent witness for 
 the plaintiff if he was ignorant of the forgery, and .if he did not make him- 
 self liable by any promise or representation concerning the note. For, in such 
 case he would not be liable to the plaintiff, and would have no interest that 
 the plaintiff should recover. Baxter v. Duren, xxix. 434. 
 
 96. Any one dealing with a person whom he knows to be a broker, may be 
 presumed to know, from the nature of a broker's business, that he is acting 
 as agent of some person unknown. Baxter v. Duren, xxix. 434. 
 
 97. When a mortgagee acknowledges payment by the mortgagers, upon the 
 margin of the record, and discharges the mortgage given to secure a note 
 against joint promisors, the acts and declarations of one of the promisors 
 may control and overcome the evidence of payment, so that an action may be 
 maintained upon the note against the other promisor. Patch v. King, xxix. 
 448. Per Tenney, J., Sheplet, C. J., dissenting. 
 
 98. A new promise made by one of two joint promisors, before the R. S. 
 of 1841, would take the case out of the statute of limitations. Patch v. 
 King, XXIX. 448. 
 
 99. The holder of a note is not restricted in his rights by any arrange- 
 ments of the makers among themselves, made after the note has passed from 
 their hands, when he was not a party thereto. Patch v. King, xxix. 448. 
 
 100. If it can be shown that a note of two joint promisors is paid, one of 
 the makers cannot revive it, so as to create any liability in the other. Patch 
 V. King, XXIX. 448. 
 
 101. A payment made upon a witnessed note, gives it new life for the next 
 twenty years. Estes v. Blake, xxx. 164. 
 
BILLS OF EXCHANGE AND PROMISSORY NOTES. 73 
 
 102. In a suit by an indorsee against the maker of a note, barred by bank- 
 ruptcy, the plaintiff cannot avail himself of a parol promise, made by the 
 maker to the payee, to pay the note. Wardwell v. Foster, xxxi. 558. 
 
 103. A promise to pay, -vs^ith a knowledge of all the facts, would bind the 
 indorser, although there had been no legal demand or notice. McPhetres v. 
 Halley, xxxii. 72. Byram v. Hunter, xxxvi. 217. Patterson v. Vose, 
 XLiii. 552. 
 
 104. In computing the' four years, in which suits may be brought against 
 the executor, the period during which his official action is suspended by an 
 appeal from the decree appointing him' to that office, is not to be reckoned. 
 McPhetres v. Halley, xxxii. 72. 
 
 105. An action upon a negotiated note cannot be brought in the name of a 
 person having no interest in it, except by his consent. Franklin Bank v. 
 Lawrence, xxxii. 586. Skowhegan Bank v. Baker, xxxvi. 154. Golder 
 V. Foss, XLIII. 364. 
 
 106. A negotiable note in the hands of an indorsee, "to whom it came 
 before the pay-day, for a valuable consideration, without notice that the maker 
 had any objection to the payment of it," is good against the maker, although 
 it was obtained from the payee and put into circulation by fraud. Fletcher 
 V. Gushee, xxxii. 587. 
 
 107. A person, who indorses a bill to another and comes again into the 
 possession of it, may be regarded as the owner of it, unless there be opposing 
 proof, and as such may recover with or without striking out any special in- 
 dorsement. Eaton V. McKown, xxxir. 510. 
 
 108. If the owner of paper negotiated in blank, deposit it for collection, 
 and the depositary transfer it as his own property, the owner, after having 
 paid the amount to the transferee, may maintain suit upon it against the 
 parties previously personally liable, such payment not being a discharge to 
 them. Eaton v. IfcKown, xxxiv. 510. 
 
 109. In a suit, by the indorsee against the drawer, it will avail nothing to 
 the defendant, that the paper does not, on its face, admit that it was drawn 
 for value. Byram v. Hunter, xxxvi. 217. 
 
 110. Where a note is given for personal property to which the vendor had 
 no title, assumpsit, to recover back the agreed price, is not maintainable in 
 the absence of proof, either that the note was negotiable, or that it had been 
 paid. Huntingdon v. Hall, xxxvi. 501. 
 
 . 111. If the payee of a negotiable note indorse it " not holden," when over- 
 due, but, at the time of the transfer for full value, represents that all the sio'n- 
 ers thereto are holden to pay it, when in fact, by some act of his, one or more 
 of them had been discharged ; he may still be liable upon the note, but not as 
 indorser. Hankerson v. Emery, xxxvii. 16. 
 
 112. Although two persons are partners, doing business under the name of 
 one of them only, a bill of exchange, drawn on him and accepted, is presum- 
 ed by law to belong to the individual to pay, and not to the partners. 3Ier- 
 cantile Bank v. Cox, xxxviii. 500. 
 
 113. G. W. C. & Co. were building a barque, which was mortgaged to F 
 C. and W. B. V., and drew their bill of exchange on F. C, which was dis 
 counted by plaintiffs, and most of the money was paid out for work done on 
 the barque. F. C. refused to accept. On the return of the bill to plaintiffs, 
 W. B. y promised that F. C. should accept and pay it:— Held, that plain- 
 tills could maintain no action on the bill against F. C. and W B V iointlv 
 nor severally against either. Mercantile Bank v. Cox, xxxviii. 500. 
 
 10 
 
74 BILLS OF EXCHANGE AND PROMISSORY NOTES. 
 
 114. Nor, under the money counts, could a recovery be had against either, 
 as the loan was made to others. Mercantile Bank v. Cox, xxxviii. 500. 
 
 115. Upon a promissory note, made payable to a bank named, or order, 
 which was never discounted or negotiated by the bank, but which was sold 
 by the principal to a third person, no action can be maintained by the holder 
 against the surety thereon, although the bank authorized a suit to be prose- 
 cuted in their name. Manufacturers' Bank v. Cole, xxxix. 188. 
 
 See Action, 69, 70. 
 EauiTY, 142, 143. 
 
 VL ACTIONS ON BILLS AND NOTES. 
 
 (a) When, and by whom, an action is maintainable. 
 
 (b) When subject to equities between other pakties. 
 
 (c) Defences. 
 
 (a) When, and by whom, an action is maintainable. 
 
 116. One who purchases an unindorsed negotiable note, and afterwards 
 writes his name, with the word " holden," upon the back of it, and sells it 
 for value, may be held as guarantor. But such contract of guaranty is not 
 negotiable, and does not pass to subsequent holders. Irish v. Cutter, xxxi. 
 536. 
 
 117. Where A. has obligated himself to pay money to another, so soon as 
 paid to him by a third person, the taking by him of a new note of such third 
 person, upon an extended pay-day, is to be regarded as a payment received 
 by A. Oreenleaf v. Hill, xxxi. 562. 
 
 118. In a note, payable in a specified time after date, the day of the date 
 is to be excluded. A demand was made upon such a note, in a town where 
 there is no bank, at three o'clock in the afternoon of the last day of grace, 
 to which the maker replied, that he never would pay it, and thereupon a suit 
 was immediately commenced : — fieZcZ, the suit was not premature. Ammi- 
 down V. Woodman, xxxi. 580. 
 
 119. A note for a sum certain, and for another sum, the amount of which 
 is contingent, though made payable to order, is not negotiable, and no action 
 can be maintained upon it in the name of an indorser. Dodge v. Emerson, 
 xxxiv. 96. 
 
 120. The indorsee of a negotiable note, purchasing it for value before lis 
 pay-day, may recover in an action against the maker, though, when taking 
 the note, he knew, that, between the maker and payee, there was a written 
 stipulation, that on a specified contingency, the note was not to be paid, and 
 although, before the pay-day, such contingency actually occurred. Adams v. 
 Smith, xxxT. 324. 
 
 121. It is not necessary, in order to maintain an action, that a party should 
 have an interest in the demand, if the suit is commenced in his name, with 
 his consent, and by the authority of those interested. Whitcomb v. Smart, 
 xxxTiii. 264. Golder v. Foss, xliii. 364. Granite Bank v. Ullis, xliii. 
 367. 
 
 122. A loan, made to some individual members of an Odd Fellows' Lodge, 
 for which a note was given to E. W., " P. S. of Lodge," may be re- 
 covered by a suit upon the note, in the name of the payee, when he is author- 
 ized to commence it by the members of the Lodge, notwithstanding he may 
 
BILLS OF EXCHANGE AND PROMISSORY NOTES. 75 
 
 not then hold that office, and notwithstanding he may be a co-member with 
 defendants. Whitcomh v. Smart, xxxviii. 264. 
 
 123. An indorsee of a note, made by a firm to one of its members, may 
 maintain an action thereon against the makers. Davis v. Briggs, xxxix. 
 304. 
 
 124. Where a partnership has been dissolved, and one of the partners has 
 assigned all his interest in the book debts and demands of the firm to the 
 other, with power to collect them for his own benefit, he cannot afterwards 
 exercise any control over such debts, although one of them is against himself. 
 Davis V. Briggs, xxxix. 304. 
 
 125. An indorsee of a witnessed note, made before the passage of the Act 
 of 1838, c. 343, may maintain an action after that Act was passed, although 
 more than six years elapsed between the date of the note and the commence- 
 ment of the suit. Reed v. Wilson, xxxix. 585. 
 
 126. An action, against the maker of a note payable at a bank, commenc- 
 ed on the last day of grace, without evidence of 'a prior demand at a reasona- 
 ble hour on that day, or that the suit was commenced after banking hours, is 
 premature. Veazie Bank v. Winn, XL. 62. 
 
 127. An indorsee may maintain an action against the indorser (payee) of a 
 promissory note, without notice of its dishonor, where the note was made for 
 the accommodation of the payee, and he agreed to take care of it, although, 
 at the time it was made and when it feU due, the maker was indebted to the 
 payee. Torrey v. Foss, XL. 74. 
 
 128. Upon a lost note the owner may maintain an action at law, without 
 furnishing indemnity to the defendant, if it appear at the time of trial that 
 the limitation bar may be interposed to prevent a recovery by any hona fide 
 holder. Torrey v. Foss, XL. 74. Moore v. Fall, xlii. 450. 
 
 129. An indorsee of a note, given for interest above the rate of six per 
 cent, per annum, for the forbearance of the payment of a sum of money, can- 
 not claim the character of an innocent purchaser, whose agent was cognizant 
 of all the circumstances under which the note originated. Goodrich v. Buz- 
 zell, XL. 500. 
 
 130. Subsequent to the Act of 1824, c. 272, and prior to April 1, 1841, 
 the maker of a promissory note, not discounted at any bank nor left for col- 
 lection therein, was not entitled to grace. Bowley v. Bowley, xli. 542. 
 
 131. A recovery may be had on a lost note, which is not negotiable ; or 
 which had not been negotiated ; or which had been specially indorsed to the 
 plaintiff, to whom it is exclusively payable. .Moore v. Fall, xlii. 450. 
 
 132. If a note be destroyed, the plaintiff, upon proof thereof, may recover 
 in a suit at law. Moore v. Fall, xlii. 450. 
 
 133. An action upon a note, indorsed in blank, may be maintained in the 
 name of any person who subsequently ratifies the act, although he has no in- 
 terest in the note or knowledge of the commencement of the action, or of the 
 existence of the note, where there is no fraud, oppression, or corrupt or im- 
 proper motive ; or, although he had stated to the defendant, in writing, that 
 he had no interest in the suit and had never authorized it. Golder v 'Foss 
 XLiii. 364. ■ ' 
 
 134. If the principal maker of a note transfer it to one not the payee, for 
 a good consideration, such lona fide holder may maintain an action against 
 such maker, in the name of the payee, with his consent. Granite Bank v. 
 Flits, xLiii. 367. 
 
76 BILLS OF EXCHANGE AND PROMISSORY NOTES. 
 
 135. A., B. and C, tenants in common of timber lands, in consideration of 
 a permit to D. and E., to cut timber thereon, received severally the notes of 
 said D. and E., each in proportion to his interest in the lands. D. and E. 
 brought an action against A., B. and C, jointly, alleging a partial failure of 
 the consideration of the notes, and claiming to recover back a portion of the 
 amount: — Held, that such joint action could not be maintained. Taylor v. 
 Pierce, xliii. 530. 
 
 See Action, 60. 
 
 (b) When subject to equities between other parties. 
 
 136. Where one brings a suit in the name of another person, the same de- 
 fence may be made, as if he were a party to the record. Sproule v. Merrill, 
 XXIX. 260. Herbert v. Ford, xxix. 546. 
 
 137. In action upon a note between the original parties, a partial failure of 
 consideration, though the amount of it be unliquidated, may be proved in 
 mitigation ; and the jury, upon the evidence, may determine the amount of 
 the failure. Herbert v. Ford, xxix. 546. Hammatt v. Emerson, xxvii. 308. 
 Coburn v. Ware, xxx. 202. Bramhall v. Beckett, xxxi. 205. 
 
 138. It is not necessary to restore what he had received under the contract, 
 to enable the party to set up such defence. Herbert v. Ford, xxix. 546. 
 
 139. If an accommodation note be negotiated bona fide, for a valuable 
 consideration, to one who is not apprized of any facts or circumstances which 
 would discredit it, the accommodation party cannot open the consideration. 
 Bramhall v. Bechet, xxxi. 205. Malbon v. Southard, xxxvi. 147. 
 
 140. But where the indorsee receives a biU or note as collateral security 
 merely, for a pre-existing debt, without parting with any right, extending any 
 forbearance, or giving any other consideration, he cannot be regarded as the 
 holder for a valuable consideration. Bramhall v. Beckett, xxxi. 205. 
 
 141. A negotiable note in the hands of an indorsee, " to whom it came be- 
 fore the pay-day, for a valuable consideration, without notice that the maker 
 had any objections to paying it," is good against the maker, although it was 
 obtained from the payee and put into circulation by fraud. Fletcher v; 
 Gushee, xxxii. 587. Walker v. Davis, xxxiii. 516. Drake v. Sogers, 
 XXXII. 524. 
 
 142. An indorsee who purchases a note with knowledge of its infirmities, 
 takes it subject to the equities. Morrison v. Jewell, xxxiv. 146. 
 
 143. A note indorsed and transferred, before its pay-day, by the payee to 
 his creditor, in discharge of a debt, is to be considered a note transferred in 
 the ordinary course of business, and, in a suit by the indorsee against the 
 maker, will be protected against any equitable defences, which might have 
 prevailed in a suit by the payee against the maker. Adams v. Smith, xxxT. 
 324. 
 
 1 44. The indorsee of a negotiable note, purchasing it for value before its 
 pay-day, may recover in an action against the maker, though, when taking 
 the note, he knew, that between the maker and the payee, there was a written 
 stipulation, that on a specified contingency, the note was not to be paid, and 
 although before the pay-day, such contingency actually occurred. Adams v. 
 Smith, XXXV. 324. 
 
 145. An indorsee of a note, given for interest above the rate of six per 
 cent, per annum, cannot claim the character of an innocent purchaser, whose 
 
BILLS OF EXCHANGE AND PROMISSORY NOTES. 77 
 
 agent was cognizant of all the circumstances under which the note originated. 
 Goodrich v. Buzzell, xx. 500. 
 
 (c) Defences. 
 
 146. A partial failure of consideration for a note, given in payment for 
 land sold, not arising out of a failure of title, but out of fraudulent represent- 
 ations respecting the quantity of timber trees then upon it, may be given in 
 evidence in defence in a suit upon such note, while it remains in the hands of 
 the seller, or in the hands of one having no superior rights. Eammatt v. 
 Emerson, xxvii. 308. 
 
 Ii7. And if the purchaser makes a contract to sell a portion of the land to 
 another, and gives to the seller in part payment, a note, signed by such other, 
 as principal, and the purchaser, as surety, this does not affect the relations 
 between the seller and purchaser, nor take away the right of the latter to set 
 up fraud in the contract, as a defence. Hammatt-y. Emerson, xxvii. 308. 
 
 148. A partial failure of consideration of a note in an action between the 
 original parties, though the amount be unliquidated, may be proved in mitiga- 
 tion. Herhert v. Ford, xxix. 546. 
 
 148. It is no defence to an action on a joint note, that one of the pro- 
 misors has been defaulted as trustee of the payee, and has paid the judgment 
 thus recovered, there being no evidence to show that he was adjudged trustee 
 on account of the note. Hutchinson v. Eddy, xxix. 91. 
 
 149. A discharge in bankruptcy annuls the validity of a note due from the 
 bankrupt. White v. Gushing, xxx. 267. 
 
 150. To discharge a note for merchantable boards and clapboards, the arti- 
 cles set out and tendered must be proved to be of such quality and condition, 
 as, under the statute, might lawfully be ''offered" or "exposed for sale," or 
 " delivered on sale." Jones v. Knowles, xxx. 402. 
 
 151. In a suit upon a promissory note, if the defence be that the consider- 
 ation was illegal, the burden of proof is on the defendant. Emery v. Estes, 
 XXXI. 155. 
 
 152. The statute of limitations is a good defence to notes made payable 
 in any thing else than money, although witnessed. Dennett v. Goodwin, 
 xxxir. 44. 
 
 153. A receipt in full of all demands, given by the plaintiff to the defend- 
 ant, if unexplained or uncontradicted, wiU defeat the action upon a promissory 
 note. Cunningham v. Bachelder, xxxii. 316. 
 
 154. No action upon a promissory note can be maintained by an indorsee 
 who took it, knowing it to have been obtained by fraud. Bryant v. Gouillard, 
 XXXII. 520. 
 
 155. In an action against the maker of a note, payable at a specified length 
 of time after its date, brought by a hona fide indorsee, who obtained it before 
 its apparent pay-day, and without knowledge of mistake in its date, the 
 maker, in order to establish a defence that the action was prematurely brought, 
 cannot_ prove, that, by mistake, the note bore a date earlier than the day upon 
 which it was actually made. Huston v. Young, xxxiii. 85. 
 
 156. Upon a verbal agreement between A., B. and C, that a note due from 
 B. to A. shall be paid by C, at a future day, the promise of C. to pay accord- 
 ingly, is but executory, and does not of itself operate a payment of the note. 
 And if the promise of C. be that he will make the payment in services, (the 
 
78 BILLS OF EXCHANGE AND PROMISSORY NOTES. 
 
 promise being an entirety,) it cannot be claimed, as against the holder, that 
 any part of the note is paid by the performance of only a part of the services. 
 Weeks V. Elliot, xxxiii. 488. 
 
 157. The recovery and payment of a judgment upon an account for which 
 an unnegotiable note vias given, wiU bar an action upon the note. Bartlett 
 V. Mayo, XXXIII. 518. 
 
 158. A partial failure alone of title to land conveyed, constitutes in this 
 State no defence to a note given in payment for it. Morrison v. Jewell, 
 XXXIV. 146. Thompson v. Mansfield, xi-lll. 490. 
 
 159. But, after the death of the payee and insolvency of his estate, the 
 maker of the note, in a suit against him by the administrator, is entitled, 
 under the insolvency laws, to set oiT the breach of covenant against the note, 
 although his claim may not have been filed before the commissioners of in- 
 solvency. Morrison v. Jewell, xxxiv. 146. 
 
 160. In a suit by the indorsee against the drawer, it will avail nothing to 
 the defendant, that the paper does not, on its face, admit that it was drawn 
 for value. Byram v. Hunter, xxxvi. 217. 
 
 161. In actions on promissory notes, orders and bills of exchange, counsel 
 of the defendant will not be permitted to deny, at the trial, the genuineness of 
 the defendant's signature, except under the 33d rule of the Court. Libhy v. 
 Cowan, XXXVI. 264. 
 
 162. No action can be maintained upon a note given under duress by im- 
 prisonment ; but such duress must be an unlawful restraint of the person. 
 Soule V. Bonney, xxxvii. 128. 
 
 163. It is no defence to a note, that it was given for the suppression of a 
 prosecution, criminal merely in form, but involving no criminal offence. Soule 
 V. Bonney, xxxvii. 128. 
 
 164. In a suit upon a joint and several promissory note, commenced against 
 the principal alone, and amended by making the surety a party after six years 
 from the time the cause of action accrued ; such surety may interpose the 
 limitation bar to prevent a recovery against him. Woodward v. Ware, 
 XXXVII. 563. 
 
 165. The alteration of a note by the maker after it is indorsed, by adding 
 " with interest," is material ; and if made without the consent of the indorser, 
 he is not liable as such, although the alteration be made before delivery. 
 
 Waterman v. Vose, xliii. 504. 
 
 See Action, 54. 
 
 VII. PLEADINGS AND EVIDENCE. 
 
 166. It is not necessary to aver and prove the presentment of a promissory 
 note, at the time and place named therein, to enable the plaintiff to maintain 
 his action. Lyon v. Williamson, xxvii. 149. Dockray v. Dunn, xxxvii. 
 442. Patterson v. Vose, xliii. 552. 
 
 167. If the maker was there prepared to pay it, that is matter in defence, 
 to be pleaded and established by him. Lyon v. Williamson, xxvii, 149. 
 
 168. Although the maker was at the place of payment, at the time named, 
 prepared to make payment of the note, and the holder was not there to re- 
 ceive the money, yet if he subsequently demand payment there, and cannot 
 obtain it, he may maintain an action against the maker to recover the amount. 
 Lyon v. Williamson, xxvii. 149. 
 
BILLS OF EXCHANGE AND PKOMISSOBY NOTES. 79 
 
 169. The plea in such case, to be good, must state, that the maker was 
 ready to pay the money at the time and place named, that he has ever since 
 heen ready there to pay the same, and that he brings the money into Court 
 for the plaintiff. Lyon v. Williamaon, xxvii. 149. 
 
 170. Counsel will not be permitted to argue to the jury, that the note be- 
 fore them was payable, according to the agreement of the maker, at a differ- 
 ent place than is indicated by the note itself. Fierce v. Whitney, xxix. 188. 
 
 171. The remedy of the holder of a note upon which there is an indorse- 
 ment which takes it out of the statute of limitations, is upon the note itself, 
 and not upon any implied promise, supposed to arise from partial pajnnent. 
 Estes V. Blake, xxx. 164. 
 
 172. If the defence to a note be that it was given in part for spirituous 
 liquors sold, the burden of proof is upon the defendant. Emery v. Estes, 
 XXXI. 155. 
 
 173. The party who would establish title in her to a note given payable to 
 a married woman, since the statute of 1844, takes the burden of proving that 
 it did not, in any way come from the husband. Clarh v. Viles, xxxii. 32. 
 
 174. In an action by the indorsee of a negotiable note, if the plaintiff 
 allege the indorsement, he need not allege a promise to himself. By opera- 
 tion of law, the original promise was to him. Ware v. Webb, xxxii. 41. 
 
 175. The statute of limitations does not, of its own force, cut off claims, 
 unless it be presented to the Court, as a defence. Hence, it is not necessary 
 to allege in the declaration, that the cause of action accrued within six years, 
 or that the note was witnessefl. Ware v. Webb, xxxii. 41. 
 
 176. A co-defendant may be cited anew, and proceeded against, although 
 the suit had been previously discontinued as to him, on an agreement for a 
 valuable consideration. Neither is it competent for another defendant to ob- 
 ject to such a proceeding. Brahe v. Rogers, xxxii. 524. 
 
 177. Such a discontinuance does not, of itself, discharge the other defend- 
 ants. Drake v. Rogers, xxxii. 524. 
 
 178. The indorsee, in a suit against the maker, may prove, that there was 
 a mistake in the date of a note, although by such proof, the pay-day of the 
 note would be extended, whereby to cut off a defence, which would be good 
 in a suit brought by the payee. Drake v. Rogers, xxxii. 524. 
 
 1 79. In a suit by an indorsee of a note, if there be no evidence of the 
 time or circumstances of the indorsement, or of knowledge by the indorsee of 
 any infirmity in the note, the presumption of law is, that the indorsement 
 was made prior to the pay-day, and in the regular course of business, and 
 without knowledge on the part of the indorsee, that the note was subject to 
 any pre-existing equities." Walker v. Davis, xxxiii. 516. 
 
 180. In an action by the payee against the drawer of a draft, it is not ad- 
 missible to prove, that when taking the draft, the plaintiff admitted the debt, 
 for which it was given, to have been contracted by the drawer as agent of the 
 drawee, and thereupon promised, that the drawer should never be held ac- 
 countable. Neither could the drawer, after judgment against him in such 
 suit, succeed in a special action upon such promise against the payee. Fair- 
 field V. Hancock, xxxiv. 93. 
 
 181. The presumption, that the giving of a negotiable note, for a simple 
 contract, was intended for payment, may be overcome by testimony. Shum- 
 way V. Reed, xxxiv. 560. 
 
 182. The authority of one who indorses a note, as the secretary of a cor- 
 
80 BILL OF SALE. 
 
 poration, need not be proved by any record or usage. It is sufficiently shown 
 by the uncontradicted testimony from a witness, that such person was the 
 secretary and had authority. Adams v. Smith, xxxv. 324. 
 
 183. In a suit upon a promissory note, the plea of the general issue, will 
 not require the 'plaintiff to prove the signature, unless it is denied according 
 to the 33d Rule of Court. lAhby v. Cowan, xxxTl. 264. 
 
 184. One, who puts his name upon the back of a note, when it is made, 
 or at a subsequent time, in pursuance of an agreement made with the payees 
 at the time the contract, out of which it originated, was made, is chargeable 
 as an original promisor ; and such note is legal evidence to support a count 
 for money had and received. Leonard v. Wildes, xxxvi. 265. 
 
 185. When the only member of a firm entitled to complain, that the note 
 had been improperly negotiated, or that it had been negotiated for a purpose 
 not within the scope of the partnership, had been examined as a witness in 
 the case, without making any objection to its negotiation, the jury would be 
 authorized to infer, that it had been done with his consent, or that he had 
 subsequently approved of it. Leonard v. Wildes, xxxvi. 265. 
 
 186. G. W. C. & Co. were building a barque, which was mortgaged to F. 
 C. and W. B. V., and drew their bill of exchange on F. C, which was dis- 
 counted by plaintiffs, and most of the money was paid out for work done on 
 the barque. F. C. refused to accept. On the return of the bill to plaintiiFs, 
 W. B. V. promised, that F. C. should accept and pay it : — Held, that plain- 
 tiffs could maintain no action on the bill, against F. C. and W. B. V., jointly, 
 or severally, against either. Nor under the money counts, as the loan was 
 made to others. Mercantile Bank v. Cox, xxxviii. 500. 
 
 187. In an action, by the indorsee of a promissory note, where it is prov- 
 ed that the note was fraudulently put into circulation, the burden of proof is 
 upon the plaintiff to show that he came by it fairly, in the due course of busi- 
 ness, unattended with circumstances justly calculated to awaken suspicion. 
 Perrin v. Noyes, xxxix. 384. 
 
 188. In an action by the drawee against the acceptor of a bill of exchange, 
 evidence, that the conditions upon which it was agreed to be accepted were 
 not fulfilled, is admissible to show a want of consideration. Wise v. Neal, 
 XXXIX. 422. 
 
 189. Parol evidence is admissible to show a waiver of demand and notice 
 at the time of the indorsement of the note ; and such waiver may be inferred 
 from the circumstances and facts of the transaction. Patterson v. Vose, 
 XLiii. 552. 
 
 BILL OF SALE. 
 
 1. A bill of sale made in good faith, for a valuable consideration, of a cer- 
 tain quantity of pickets, a portion of which were manufactured and delivered, 
 and the remainder to be manufactured, and a place fixed for their delivery, 
 and a delivery made accordingly, vests the title of such pickets, so set apart, 
 in the vendee, as against the creditors of the vendor. Veazie v. Holmes, 
 XI. 69. 
 
 2. A. executed to B. a bill of sale with covenants of warranty, of three- 
 
BOND. 81 
 
 eiglxths of a vessel, and C. and D. executed to him a like bill of sale of four- 
 eiSths of the same vessel :-aeZ<^, that B. would have a remedy upon the 
 covenants in his bills of sale, for money paid to discharge an incumbrance 
 upon the vessel, at the time of the sale. Stoddard v. Gage, xli. 287. 
 
 3 But no action can be maintained as upon a joint promise againstthe 
 three, although one of them, without the authority of the others, promised 
 him, that if he would pay off the incumbrance, " they would settle with him. 
 Stoddard v. Gage, xli. 287. 
 
 4 A conveyed a vessel to B. by bill of sale, upon an agreement, that B. 
 should appropriate the proceeds of the vessel to the discharge of A. s debts 
 for which B. was smety -. — Held, that this agreement was a suificient consid- 
 eration for the conveyance. Stedman v. Vickery, xlii. 132. 
 
 See CoNTKACT, 96, 97. 
 
 BOND. 
 
 I. IN GENEEAL. 
 
 II. CONSTRUCTION AND BREACH. 
 III. PLEADINGS AND EVIDENCE. 
 
 Of Probate Bonds, Replevin Bonds, Poor Debtor s Bonds, Bastardy Bonds, 
 
 See THEIK APPKOPKIATE TITLES. 
 
 I. IN GENERAL. 
 
 •1. A bond, given for the 1-e-conveyance of land, though unrecorded, wiU be 
 operative against an attaching creditor of the grantor, who attached prior to 
 the R. S. of 1841, and who, at the time of the attachment, had notice, either 
 expressed or implied, of such a bond. McLaughlin v. Shepherd, xxxii. 143. 
 
 2. A bond, given to two persons, is not rendered inoperative by the pre- 
 vious death of one of them ; but it is available to the survivor. Pettingill v. 
 Patterson, xxxii. 569. 
 
 3. A bond given to husband and wife for their maintenance during each of 
 their lives, belongs to the wife, if she survive the husband, unless reduced to 
 possession by him. Pike v. Collins, xxxiii. 38. 
 
 4. To reduce it to possession, the husband must do some act, indicating an 
 appropriation to himself or disaffirming her right. But the recovery of a 
 judgment by him in the name of both, upon such a bond, without taking out 
 execution, shows a disposition not to appropriate it. Pike v. Collins, 
 XXXIII. 38. 
 
 5. The interest which an obligee or his assignee has in a conditional bond 
 for the conveyance of real estate, is attachable by his creditors. Huston v. 
 Jordan, xxxv. 520. 
 
 6. A bond, given under the requirements of § 6, c. 211, of the Acts of 
 1851, is contrary to the provisions of the constitution, and void. Saco v. 
 Wentworih, xxxvii. 165. Saco v. Woodsum, xxxix. 258. 
 
 7. Where a bond owned by the intestate, had been assigned by him as 
 
 11 
 
82 BOND. 
 
 security to Ms creditor, but was inventoried among the assets of his estate, 
 and the obligor presented and was allowed a much larger sum against the 
 estate, before the commissioners of insolvency, the bond is not affected by 
 such proceedings ; the commissioners having had no authority over the bond. 
 Ellis V. Smith, xxxTiii. 114. 
 
 8. Where such bond was assigned to several creditors of the intestate, but 
 only one of the assignees knew of its transfer, or accepted of its provisions ; 
 as to all who had not previously assented to it, the assignment was revoked 
 by the death of the assignor. Ullis v. Smith, xxxviii. 114. 
 
 9. After an assignment of a bond has been made, it cannot be revoked by 
 the assignor without the consent of the assignee. Seed v. Nevins, xxxviii. 
 193. 
 
 10. Before acting as pound-keeper, the person chosen, must give a bond 
 with suiRcient sureties, approved by the aldermen, or selectmen, for the faith- 
 ful performance of his duties. And in a suit against him, without showing 
 that his bond was approved, before the acts complained of were done, he can- 
 not justify as pound-keeper. Bounds v. Mansfield, xxxviii. 586. 
 
 11. A bond, given under the provisions of the 13th § of c. 48 of the Acts 
 of 1853, is void; and any sale of spirituous or intoxicating liquors by the 
 principal obligor, during the pendency of the appeal, in connection with which 
 such bond was given, creates no liability on the part of the obligors. But 
 where an action is commenced upon such bond, and the selectmen of the town 
 interested indorsed upon it their approval of the suit, no costs are recoverable 
 by the defendants. Saco v. Woodsum, xxxix. 258. 
 
 12. Where a bond or other contract has been settled and surrendered as 
 satisfied by reason of mistake or fraud, it may be treated as a valid and sub- 
 sisting instrument. Chapman v. Lothrop, xxxix. 431. 
 
 13. But when, through negligence, inattention or ignorance, the plaintiif 
 allows his bond to be discharged by his attorney, without claiming a full per- 
 formance of its conditions, and* after full knowledge of the mode in which the 
 settlement of it was made, he acquiesces in it for a long time, he cannot after- 
 wards treat the bond as subsisting and recover a further sum, although such 
 claim was contemplated in its original provisions. Chapman v. Lothrop, 
 XXXIX. 431. 
 
 14. A bond binding the obligor not to exercise a trade, is void. But where 
 the inhibition is for a limited time, and within certain limits, it maybe obliga- 
 tory. And the exceptions to the ancient rule of the common law should re- 
 ceive a liberal construction in this country. Whitney v. Slayton, XL. 224. 
 
 15. Thus, where the defendant sold plaintiff an iron foundry, in Calais, and 
 agreed not to engage in the business of iron-casting within sixty miles of that 
 place for ten years, it not being a part of the State densely inhabited, and 
 containing but few places of much business : — Held, that the agreement was 
 binding. Whitney v. Slayton, XL. 224. 
 
 16. A bond for the conveyance of real estate, on the conditions being per- 
 formed within ten days, which provides that it shall be void in case of the 
 accidental non-reception of the deed of the premises from certain persons in 
 whom the title is supposed to be, is binding, although at the time of its ex- 
 ecution, the title to the land is not held by the persons supposed. Haynes v. 
 Fuller, XL. 162. 
 
 17. And such a bond is valid, although the agent of the obligors, holding 
 the title, is unable to make the conveyance to the defendants, within the time 
 allowed, through pressure of business. Haynes v. Fuller, xl. 162. 
 
BOND. 83 
 
 18. The performance of a contract under seal, cannot be waived by a parol 
 executory agreement. Eaynes v. Fuller, XL. 162. 
 
 II. CONSTRUCTION AND BREACH. 
 
 19. In a bond conditioned to convey land upon the pa5mient of a note, 
 time is not considered, in equity, to be of the essence of the contract, unless 
 the parties have expressly agreed that it shall be so regarded, or unless it 
 follows from the nature and purposes of the contract. Jones v. Bobbins, 
 XXIX. 351. 
 
 20. Generally, in such contracts, the time of payment is regarded, in equity, 
 as formal and as meaning only that the purchase shall be completed within a 
 reasonable time, and substantially according to the contract, regard being had 
 to aU the circumstances. And time is not of the essence of the contract, 
 containing the clause, that " in case the obligee shall neglect or refuse to pay 
 the note according to its tenor, the bond shall be void. Jones v. Bobbins, 
 XXIX. 351. 
 
 21. The obligor in a bond for the conveyance of real estate, after demand 
 for a deed, is entitled to a reasonable time to prepare it. And when the note, 
 on the payment of which the conveyance is to be made, is paid to an indorsee, 
 the obligor is entitled to reasonable notice that the condition is fulfilled before 
 he makes the deed ; but it is not necessary that the note should be exhibited 
 to him. Bussell v. Oopeland, xxx. 332. 
 
 22. Where a bond, among other things, stipulates that the obligee shall 
 pay aU taxes upon the land: — Held, that the payment of the taxes was not 
 a condition precedent to the conveyance. Bussell v. Copeland, xxx. 332. 
 
 23. A conveyance of land, and a bond, made at the same time, by the 
 grantee, to re-convey upon the performance of certain conditions, constitute a 
 mortgage. ^ And an offer to perform the conditions defeats the conveyance. 
 McLaughlin v. Shepherd, xxxii. 143. 
 
 24. Upon a bond conditioned to pay an outstanding mortgage upon land 
 purchased by the obligee, the right of action accrues at the expiration of a 
 reasonable time after the mortgagee would have been compellable to receive 
 payment of the mortgage. Gennings v. Norton, xxxv. 308. 
 
 _ 25. Upon a bond, conditioned to save harmless from such a mortgage, no 
 right of action accrues, until the obligee had been subjected to some injury. 
 And a liability to injury, if attended with inconvenience to the obligee, con- 
 stitutes a breach, and gives an immediate right of action. Gennings v. Nor- 
 ton, xxxv. 308. 
 
 26. A bond, given to obtain release from an arrest made by the collector of 
 taxes, must run to the assessors of the town and not to the inhabitants • 
 though a bond running to the inhabitants is good at common law. Athens v' 
 
 Ware, xxxix. 345. 
 
 27. A bond, conditioned, that if mthin one year upon request and pay- 
 ment of a certain sum, the obligor shaU make and execute a vaHd deed of a 
 piece of land, is forfeited, by a refusal to convey on such request and payment 
 at any time withm the year. Brown v. Glough, xxxix. 566. 
 
 28. Where, from the conditions of a bond, the obligee was to receive the 
 sums then due, or what might be due from the settlers on their contracts ; and 
 also that one of the settlers owed about $130, when in fact he owed only 
 *dO: — ifeZrf, m an action to recover the difference, that the bond showed no 
 
84 BOND. 
 
 undertaking on tlie part of the defendant that such sum should be collected, 
 but that the parties left the sum due from settlers as uncertain, and that no 
 action would lie against . defendant for money received by him before the con- 
 tract. Larrabee v. Woodman, xi. 120. 
 
 29. A bond containing the stipulation, that the obligor would not engage 
 in the business of iron-casting within sixty miles of a place named, for ten 
 years, is broken, if the obligor become a stockholder in an incorporated com- 
 pany, carrying on that business within those limits, or an employee of such 
 corporation. Whitney v. Slayton, XL. 224. 
 
 30. When the performance of the condition of a bond is limited to ten 
 days, by the instrument, and an agreement made on good consideration to 
 waive the performance as to time, is proved, but no time fixed for the per- 
 formance, in determining what is a reasonable time, regard must be had to the 
 original contract, and forty days would be too late. Haynes v. Fuller, XL. 
 162. 
 
 31. A. conveyed to B. certain real estate subject to a mortgage given by 
 himself to a third person. B. gave back a bond conditioned to re-convey to 
 A., by quit claim deed, a certain portion of the premises, whenever the latter 
 should clear the remainder from incumbrance. B., afterwards, obtained an 
 assignment of the mortgage to himself: — Held, that the bond created no 
 obligation on the part of B. to discharge the mortgage, and that it did not 
 preclude him from subsequently acquiring any additional title. Fisher v. 
 Shaw, XLii. 32. 
 
 III. PLEADINGS AND EVIDENCE. 
 
 32. Where a bond for the conveyance of land was given upon the payment 
 of a note described in such bond, a delay to pay the note was excused, in 
 equity, by proof that the obligee was intending to pay it, but that before, and 
 at, and a few weeks after the pay-day, he was prevented by sickness from at- 
 tending to any business affairs, and that, upon his recovery, he sought per- 
 mission of the obligor to pay it. Jones v. Bobbins, xxix. 351. 
 
 33. In such case, it having appeared that the obligor had determined to 
 insist upon the forfeiture, as soon as the pay-day of the note had expired, and 
 that, therefore, no subsequent tender would have been accepted, it was decreed 
 that he should convey the land, a tender having been made prior to the suit. 
 Jones V. Bobbins, xxix. 351. 
 
 34. The obligor cannot set up in defence, that the obligee had not in readi- 
 ness a mortgage deed of the same premises, provided in the condition to be 
 given on receiving the conveyance, to secure the balance of the purchase 
 money. Bussell v. Gopeland, xxx. 332. 
 
 35. The obligee's right of recovery cannot be defeated by a tender of a 
 deed after action brought ; and the damages in such action, are the value of 
 the land, at the time it should have been conveyed. Bussell v. Gopeland, 
 xxx. 332. 
 
 36. An action upon a bond, brought in the name of thd joint obligees, by 
 an assignee of one of them, may be discharged by the other. Shaw v. 
 Keep, XXXIV. 199. 
 
 37. In a suit upon a bond, conditioned to save harmless from an outstand- 
 ing mortgage, commenced after a breach, the damage occurring during its pen- 
 dency m?iy be included in the judgment; including the amount paid to ex- 
 
BOOM. g5 
 
 tinguish the mortgage ; counsel fees in the action against himself; the amount 
 paid witnesses, and for taking depositions ; and a reasonable sum for his per- 
 sonal expenses and time. Gennings v. Norton, xxxt. 308. 
 
 38. "Where, in such a case, the conditional judgment upon the mortgage 
 has been recovered against one to whom the obligee had, without covenants 
 of warranty, conveyed a part of the land, and the obligee has paid the amount 
 of the judgment : — Held, that as such payment lifted the mortgage from his 
 own part of the land as well as from that of his grantee, he may recover for 
 the amount due on the mortgage, in a suit upon the bond ; but not for the 
 cost in that judgment, the payment of the same having been voluntary. Gen- 
 nings V. Norton, XXXV. 308. 
 
 39. The obligee in a Dond, after he has assigned the same, can maintain no 
 action upon it, without the consent or request of the party in interest. Beed 
 V. Nevins, xxxviii. 193. 
 
 40. Where an action is commenced upon a bond given under the require- 
 ments of § 13 of c. 48, of Acts of 1853, and the selectmen of the town in- 
 terested indorsed upon it their approval of the suit, no costs are recoverable 
 by the defendants. Saco v. Woodsum, xxxix. 258. 
 
 41. In a suit upon a bond, stipulating not to engage in the iron-casting 
 business within sixty miles of a place named, damages are recoverable, up to 
 the time of trial. Whitney v. Slayton, xl. 224. 
 
 See Attoenets, &c., 24. 
 
 BOOK ACCOUNT. 
 See Evidence, 103, 108, 294, 310. 
 
 BOOM. 
 
 A sale of the " boom and piers" of a corporation, on execution against the 
 company having authority to maintain it, passes nothing but the piers, logs 
 and chains, and the purchaser takes no right in the lease-hold of some flats 
 and shore, used by the company.. Bollins v. Clay, xxxiii 132 
 
 BOUNDARIES OF LAND. 
 See Deed. 
 
 BOWLING ALLEY. 
 See Indictment, 51, 52. 
 
86 BRIDGES. 
 
 BRIDGES. 
 
 1 . If a grant of a cliarter te made, authorizing the building of a bridge, 
 and there is contained in it a reservation or condition, with a view to the par- 
 ticular interest of an individual, such as exhibiting in view the rates of toll, 
 he may avail himself of the omission, in defence of a suit against him to re- 
 cover the penalty incurred by passing the bridge with the intent to avoid the 
 payment of toll. Propr's of S. W. B. Bridge v. Hahn, xxviii. 300. 
 
 2. But if such grant be made on conditions which would not be for the 
 particular benefit or accommodation of an individi^l, such as building the 
 bridge in a difierent manner from that stipulated in the charter, the Legisla- 
 ture alone can interfere and inquire whether the condition has been perform- 
 ed ; and an omission to comply strictly with the condition, cannot be set up 
 by an individual, as an excuse for his own violation of the provisions of the 
 Act. Fropr's of S. W. B. Bridge v. Hahn, xxtiii. 300. [Per Whitman, 
 C. J., Wells, J., dissenting."] 
 
 3. When one acts as toll-gatherer, and, as such, demands toll of a person 
 passing the bridge, and his acts are adopted by the corporation, such person 
 passing the bridge, with the intent to avoid the toU, cannot object in defence 
 that the toU-gatherer was not legally chosen or appointed. Projar's of S. 
 W. B. Bridge v. Hahn, xxviii. 300. 
 
 4. A charter authorizing defendants to build a bridge over tide waters, re- 
 quired them to build it of suitable materials, at least twenty-two feet wide, 
 with a draw of sufficient width for vessels to pass through, &c., &c., and the 
 whole shoiild be kept in good and safe repair : — Held, — 
 
 1st. That the corporators were bound to provide all necessary apparatus for 
 raising the draw : — 
 
 2d. That they were bound to raise the draw for the passage of vessels 
 through it : — 
 
 3d. That for any neglect or unnecessary delay in so doing, they were liable 
 to pay the damages sustained. Patterson v. Propr's of E. Bridge, xl. 404. 
 
 See Aquatic Rights, 12. 
 
 BRIEF STATEMENT. 
 See Abatement. Pleading. 
 
 BUCKFIELD B. RAILROAD. 
 
 See Constitutional Law. 
 
BUBGLABY.— BY-LAWS. 87 
 
 BURGLARY. 
 
 That the acts, necessary to constitute the crime of burglary, were com- 
 mitted in the night time, is sufficiently stated by an averment in the indict- 
 ment, that they were committed on a specified day, about the hour of twelve 
 in the night of the same day. State v. Seymour, xxxyi. 225. 
 
 BURTHEN OF PROOF. 
 See EviBENCE. 
 
 BY-LAWS. 
 
 1. A by-law of a town is invalid, if it be repugnant to the general law of 
 the State. Burke v. Bell, xxxti. 317. 
 
 2. No by-law of a corporation can enlarge its corporate powers. Andrews 
 v. W. M. F. Ins. Co., xxxTii. 256. 
 
 3. The establishment of a by-law, imposing a penalty for mutilating any 
 ornamental tree planted in any of the streets or public places of the city of 
 Portland, is within the authority granted by its charter. State v. Merrill, 
 xxxYii. 829. 
 
 4. The by-laws of a corporation, not repugnant to the laws of the land, are 
 obligatory. Game v. Brigham, xxxix. 35. 
 
 See Instjkance. 
 
 CARRIER. 
 See Bailment. 
 
 CASE. 
 See Maliciotjs Peosectjtion. 
 
 CERTIFICATE. 
 See Aekest. Deed. 
 
88 CEBTIOKAEI. 
 
 CERTIORARI. 
 
 1 . "Wliere part of the proceedings is so independent and disconnected with 
 the residue, that it may be quashed, and leave the remainder an available 
 judgment to the purposes for which it was intended, the Court may quash what 
 is erroneous, and aifiim the remainder. Minot v. Cumberland Go. Com., 
 XXVIII. 121. 
 
 2. A certiorari will not be granted to quash the proceedings of the County 
 Commissioners relative to the assessment of damages in the laying out of a 
 town way, because the application was not filed in the Clerk's office within 
 one year, where the application was found on the Clerk's files, without any 
 entry of the time of filing, but dated before the expiration of the year, and 
 no objection is made on that ground to the appointment of the committee, 
 or to their proceeding to act in the matter. Minot v. Cumberland Co. Com., 
 XXTIII. 121. 
 
 3. Nor where, there being no town agent, the selectmen agreed upon a com- 
 mittee instead of a jury, and the town appeared by attorney before the com- 
 mittee and before the commissioners on the return of the report, without 
 making that, ground of objection. Minot v. Cumberland Co. Com., xxviii. 
 121. 
 
 4. A general allegation in a petition for certiorari, that the committee were 
 actuated by motives of gross partiality, is too uncertain and indefinite to re- 
 quire the consideration of the Court. Minot v. Cumberland Co. Com., 
 xxviii. 121. 
 
 5. If there are important irregularities in the location of a road, or in the 
 assessment of taxes to build it, they can be taken advantage of only by cer- 
 tiorari. Longfellow v. Quinby, xxix. 196. Banks v. Co. Com. of Cum- 
 berland and York, xxix. 288. 
 
 6. Applications for vreits of certiorari are addressed to the discretion of the 
 Court ; and if the alleged errors are found to be such as aff'ect the forms, and 
 not the substantial merits of a case, the writs will be refused, otherwise wiU 
 be granted. Lewiston v. Cumberland Co. Com., xxx. 19. Inhab. of Water- 
 ville, Fet'rs, xxxi. 506. Cornville v. Co. Com., xxxiii. 237. Dyer v. 
 Lowell, XXXIII. 260. Detroit v. Co. Com. xxxv. 373. Oxford v. Co. Com., 
 xtiii. 257. Smith v. Co. Com., xlii. 395. Wayne v. Co. Com., xxxvii. 
 558. W. Bath, Pet'rs, xxxvi. 74. 
 
 7. If the adjudication of the County Commissioners does not contain a 
 description of the road, so that it may be ascertained from the record, a -writ 
 of certiorari wUl be granted. Lewiston v. Cumberland Co. Com., xxx. 19. 
 
 8. Certiorari is the proper remedy for the party injured, when there are 
 errors in the proceedings of commissioners in setting off lands under. a petition 
 for partition. Dyer v. Lowell, jlxjl. 217. 
 
 9. It is not necessary that a petitioner for certiorari should be a party to 
 the record, but only interested in the subject matter, upon which the record 
 acts. Dyer v. Lowell, xxx. 217. 
 
 10. Certiorari cannot be refused where County Commissioners have ren- 
 dered a judgment in a matter of which they had no jurisdiction, even if no 
 injustice was done. Bangor v. Penobscot Co. Com., xxx. 270. 
 
 11. Certiorari can be issued only for the relief of some injured party. 
 Pingree v. Co. Com., xxx. 351. Strong v. Co. Com., xxxi. 578. Band 
 V. Tobie, xxxii. 450. W. Bath, Pet'rs. xxxvi. 74. 
 
CEBTIOEARI. 89 
 
 12. When County Commissioners, having located a highway upon a 
 petition, close their proceedings earlier than is by law allowed, certiorari will 
 be granted. Windham, Pet'rs, xxxil. 452. 
 
 13. When a return of the doings of the County Commissioners, in locating 
 a highway, has not been recorded until the third ensuing term, certiorari will 
 be granted, to quash the whole proceedings. Gornville v. Go. Com., xxxiii. 
 237. 
 
 14. When certiorari is allowed and issued, the Court no longer has any 
 discretionary power over the record brought under revision ; and if material 
 errors are found in it, it must be quashed. If errors were assigned in the 
 petition, there need be no new assignment in the \r»it. Dyer v. Lowell, 
 XXXIII. 260. 
 
 1 5. The record may be adjudged of, and acted upon by the examination of 
 a copy, as well as of the original. Dyer v. Lowell, xxxiii. 260. 
 
 16. Grrantees of land, who purchase, pending the petition for a ^vrit of 
 certiorari, are bound by the final adjudication of the process. Dyer v. Lowell, 
 XXXIII. 260. 
 
 17. Certiorari will not be granted to quash County Commissioners' pro- 
 ceedings, if the Commissioners had jurisdiction, and if substantial justice 
 were done by their action ; although their record may not show, in all partic- 
 ulars, an exact compliance with the statute requirements. W. Bath, Pet'rs, 
 XXXVI. 74. 
 
 18. That there was, in fact, such a compliance, may be proved aliunde the 
 records. Such evidence, however, cannot be heard by the S. J. Court of the 
 District, but must be presented to the S. J. Court for the county. W. Bath, 
 Pet'rs, XXXVI. 74. Smith v. Go. Gom., xlii. 395. 
 
 19. To obtain a decision, whether the proceedings in establishing streets, 
 have been legal, the process is by certiorari. Upon a bill in equity, praying 
 an injunction, the proceedings will not be examined. Baldwin v. Bangor, 
 XXXVI. 518. 
 
 20. Irregularities in the proceedings of County Commissioners, which will 
 not prevent one, supposing himself to be aggrieved, from obtaining redress 
 according to the course prescribed by law, furnish no authority for issuing a 
 writ of certiorari. Sumner v. Go. Com. xxxvii. 112. 
 
 21. Although the Commissioners make an abatement, without authority, 
 still the writ of certiorari will be denied, when it appears, from the whole case," 
 that no injury has been done to the town by their proceedings. Winslow' 
 Pet'rs, XXXVII. 561. jr o , 
 
 22. An omission to give notice of the time and place appointed to consider 
 and adjudicate upon a petition for the location of a road across lands, not sit- 
 uated within an organized plantation or incorporated to^, is sufficient cause 
 for granting the ivrit of certiorari against County Commissioners. Ware v 
 Co. Gom. XXXVIII. 492. 
 
 23. If the presiding officer of a jury, empaneUed to view and award dam- 
 ages for land taken by raiboad companies, gives en-oneous instructions to such 
 jury, whether the party, suifering thereby without fault, may not have certio- 
 rari, quere. But if he was not aggrieved by instructions given or withheld, 
 the writ will be denied. McKenney v. Go. Com. XL. 136. 
 
 24. The omission of the records of County Commissioners to state that 
 their return, pending proceedings, remained on file for the inspection of inter- 
 
 12 
 
90 CHEATIXG tY FALSE PRETENCES. 
 
 ested parties, is not a sufficient defect to authorize the issuing of a writ of 
 certiorari. Smith v. Go. Com. xlii. 395. 
 
 25. Nor, where the record omits to state, that a committee, appointed by 
 S. J. Court, to report upon the doings of County Commissioners, were disin- 
 terested men. Smith v. Co. Com. xlii. 395. 
 
 26. The hearing and determination upon a petition for a writ of certiorari, 
 must be had at nisi prius. Oxford v. Co. Com. xliii. 257. 
 
 CHALLENGE. 
 See JritT. 
 
 CHANCERY RULES. 
 See Vol. xxxYir. 596. 
 
 CHARGE ON REAL ESTATE. 
 
 See MOKTGAGE. 
 
 CHEATING BY FALSE PRETENCES. 
 
 1 . An indictment for obtaining property by false pretences, is defective un- 
 less it set forth the sale or exchange, and that the false pretences were made 
 with a view to effect such a sale or exchange, and that by reason thereof, the 
 party was induced to part with his property. State v. Philhrick, xxxi. 401. 
 
 2. Where a party falsely and fraudulently pretends that the property which 
 he is parting with, belongs to himself and is unincumbered, and, at the same 
 time, affirms that he will warrant it against incumbrances, an indictment may 
 be sustained against him, if the false pretence, and not the warranty was the 
 inducement which operated upon the other party. State v. Dorr, xxxili. 498. 
 
 3. And the indictment need not allege, that the property parted with by 
 the defendant, was of any value. State v. Dorr, xxxiii. 498. 
 
 See Actios, 21. 
 
CHECKS. — CITY OF PORTLAND. gx 
 
 CHECKS. 
 
 1. To charge an indorser of a check drawn upon a bank, it must be pre- 
 sented within a reasonable time ; and the holder is allowed until the next day 
 after having received it, for that purpose. Vea,zie Bank v. Winn, xi. 60. 
 
 2. Where a check is dated at, and drawn upon a bank in Boston, and there 
 is no evidence in the case, that before presentment it was held by any one 
 residing out of that city, a presentment of it for payment, three days after it 
 was drawn, is too late to charge the indorser. Veazie Bank v. Winn, XL. 60. 
 
 3. If a check on a banker be delivered to a person distant from the place 
 where it is payable, it will suffice to forward it by post or otherwise, to some 
 person residing in the latter, on the day after it is received ; and it will suffice 
 for him to present it on the third day. Veazie Bank v. Winn, xi. 60. 
 
 4. Bank checks, in form and effect, are bUls of exchange. As between 
 the holder and drawer, on failure of the drawee to pay, a demand at any time 
 before the action is commenced will be sufficient, unless it appear that the 
 drawer has sustained an. injury. Foster v. Paulk, xii. 425. 
 
 5. The indorser may be holden on proper notice, after the drawee upon 
 legal demand has refused payment, or in any state of facts which amounts to 
 a dishonor of the check. Foster v. Paulk, xli. 425. 
 
 6. A check drawn on a bank in which the drawer has no funds, need not 
 be presented at all, in order that an action may be maintained upon it. Fos- 
 ter V. Faulk, XII. 425. 
 
 7. The holder of a check is prima facie the rightful owner of ft ; and he 
 need not prove a consideration for it, unless he possesses it under suspicious 
 circumstances. And an exchange of checks constitutes a good consideration 
 in each case. Foster v. Paulk, xii. 425. 
 
 8. A check is transferable by delivery. Foster v. Paulk, xti. 425. 
 
 CITY OF PORTLAND. 
 
 1. Sect 3, c. 24, of the ordinances of the city of Portland, relating to 
 bowlmg alleys, is legal and valid. State v. Hay, xxix. 457. 
 v^'iJ^^ ^1f for committing persons to the house of correction in Portland, 
 should be allowed by the County Commissioners, and paid out of the county 
 treasury. And no action can be maintained to coUect them, until they have 
 been so audited and found due. Huse v. Cumberland, xxix. 467. 
 
 3 The licensing of an individual to occupy a part of a public street 
 exc usively for his own benefit by erecting and using a railroad for the trans- 
 portation of rocks and gravel, is not among the powers granted to the city 
 
 rZ °7°^, ^"''i' ^y '^' ^'\ ^^-^ti"^ °f its charter, or by any other statute^ 
 trreen v. Portland, xxxii. 431. 
 
 4. No action lies against the city for a person suffering special damage in 
 his comfort and business, by means of a railroad, so licensed, although the 
 
92 CITIZENSHIP. — CLAMS. 
 
 party licensed may have given a bond to indemnify the city against liability 
 for such damages. Green v. Portland, xxxii. 431. 
 
 5. The charter of the city of Portland authorized the city to establish such 
 by-laws and regulations, not inconsistent with the constitution or laws of the 
 State, as might be needful for the good order of the city? State v. Merrill, 
 XXXVII. 329. 
 
 CITIZENSHIP. 
 
 1. A residence by a father, within the United States, and an adherence to 
 its government from the commencement of the Revolutionary war until after 
 the definitive treaty of peace of 1783, conferred all the rights of citizenship 
 both upon himself and upon his minor child residing in his family. Calais 
 V. Marshfield, xxx. 511. 
 
 2. By the common law, allegiance is not a matter of individual choice. It 
 attaches at the time and on account of birth, under circumstances in which 
 the family owes allegiance, and is entitled to protection. Calais v. Marsh- 
 field, xxx. 511. 
 
 3. Although the child, whose citizenship is thus established, may have re- 
 moved immediately after coming of age to act for himself, into a British 
 province, and adhered to its government, he is, on his return to the United 
 States, entitled to the rights of citizenship. Calais v. Marshfield, xxx. 511. 
 
 CLAMS. 
 
 1. The general term " piscaria,". includes all fisheries without any regard 
 to their distinctive character, or to the method of taking the fish. Moulton 
 V. Libby, xxxvii. 472. 
 
 2. Shell fisheries, including the digging of clams, are embraced in the com- 
 mon right of the people to fish in the sea, creeks and arms thereof. Moulton 
 V. Libby, xxxvii. 472. 
 
 3. One accustomed to dig clams for sixty years in pertain flats, subject to 
 the flux and reflux of the tide, cannot set up such acts as evidence of an exclu- 
 sive right within such limits. Moulton v. Libby, xxxvii. 472. 
 
 CLERICAL ERRORS. 
 
 See Replevin. 
 
COLLECTOR.— COLONIAL ORDINANCE. 93 
 
 COLLECTOR. 
 
 1 To the validity of a sale of real estate, made by a collector, it is indis- 
 pensable that he tstke the oath of office before acting therein. Payson v. 
 Hdl, XXX. 319. 
 
 2 The coUector of taxes of a town has the same powers, and is under the 
 same obligations, to collect school district taxes, as in cases of town taxes. 
 Smyth V. Titcomh, xxxi. 272. 
 
 3 A collector of taxes, who receives a surplus of money upon the sale of 
 property for a tax, and who omits to render to the owner, " an account in 
 writing of the sale and charges ;" is a trespasser ab xmUo. Blanchard v. 
 Dow, XXXII. 557. 
 
 4. A collector of taxes is liable in trespass, if he sell upon his warrant a 
 greater number of the chattels than sufficient to pay the tax, with the fees 
 and charges. Williamson v. Dow, xxxii. 559. 
 
 5. A sale, made by a collector for payment of an illegal tax, gives no title. 
 Coombs v. Warren, xxxiv. 89. 
 
 6. A collector is authorized to receive payment for land sold to collect the 
 taxes assessed upon it, in cash only, and he becomes accountable to the town 
 for cash. Packard v. New Limerick, xxxiT. 266. 
 
 7. The risk of title in a collector's sale, is upon the collector and purchaser, 
 and not upon the town. Packard v. New Limerick, xxxiv. 266. 
 
 8. A collector of taxes legally qualified, acting within the scope of his 
 powers, under a warrant from competent authority ,_ is protected against all 
 illegality but his own ; and his return is prima facie evidence in his favor of 
 the facts therein stated. Caldwell v. Hawkins, xi. 526. 
 
 9. No recovery can be had upon the bond of a collector for a failure to 
 collect taxes committed to him by a warrant, which, in terms, gives no au- 
 thority to distrain or commit. Frankfort v. White, xxi. 537. 
 
 10. A clause in such warrant, purporting to extend to it the powers granted 
 in a previous one to the same person in due form, would not make it valid. 
 Frankfort v. White, xli. 537. 
 
 COLONIAL OEDINANCE. 
 
 By virtue of the proviso contained in the Colonial Ordinance of 1641, per- 
 sons had a right to use the shore of the Penobscot river, including the right 
 of mooring their vessels thereon, and of discharging and taking in their car- 
 goes. State V. Wilson, Xili. 9. 
 
 See Flats, 1, 2. 
 
94 COMMERCE.— COMMITTEE. 
 
 COMMERCE. 
 
 1 . The power given to Congress, to regulate commerce with foreign nations 
 and among the States, includes the power to regulate navigation with foreign 
 nations and among the States, and extends both to salt and fresh waters, and 
 beyond, as weU as within, the ebb and flow of tides. Moor v. Veazie, xxxir. 
 343. 
 
 2. It is however restricted to such waters as can be employed in commerce 
 between a State and foreign na:tions, or some other State ; and does not extend 
 to those waters within a State, from which a vessel cannot be navigated to a 
 foreign port or to another State. Moor v. Veazie, xxxii. 343. 
 
 3. The power given to Congress to regulate commerce with Indian tribes 
 does not include navigation with the Penobscot Indians, or with any of the 
 Indian tribes whatever. It is confined to that sort of trade, of which navi- 
 gation constitutes no part. Moor v. Veazie, xxxii. 343. 
 
 4. A coasting license, granted to a, vessel, plying upon the interior waters, 
 from which it could not reach another State or a foreign nation, is unauthor- 
 ized and inoperative. Moor v.. Veazie, xxxii. 343. 
 
 COMMISSIONERS. 
 
 See Insolvency. Petition fok Paktition. 
 
 COMMITTEE. 
 
 To bind a town by the doings of one of its committees, a majority of 
 the committee must concur. If, within the scope of a committee's appoint- 
 ment, a minority authorize a deviation from the contract, and the majority 
 direct a return to the original, promising verbally to pay the contractor what 
 was right for his loss, in consequence of his alteration, it is a ratification, and 
 will bind the town. Sanson v. Dexter, xxxvi. 516. 
 
 COMMON SELLER. 
 See LiQtroK. 
 
 COMMON VICTUALER. 
 
 See Inn-holdek and Common Victualek. 
 
COMPLAINT. 95 
 
 COMPLAINT. 
 
 1. If, under c. 205, of the Acts of 1846, a complaint allege a sale to ha,ve 
 been in a less quantity than is allowed to be imported, it need not specify 
 whether the liquor was or was not imported. State v. Crowell, xxx. 115. 
 
 2. Nor is it necessary to allege by whom the defendant made the sale. 
 State V. Stewart, xxxi. 515. State v. Brown, xxxi. 520. 
 
 3. The exception, in c. 205, § 1, of the Act of 1846, is suificiently 
 negatived by an averment that the liquor was not imported into the U. S. from 
 any foreign port or place. And it is sufficient to aver that the liquor was 
 sold to Mrs. B., without giving the christian name. State v. Brown, xxxi. 
 522. 
 
 4. An allegation in a complaint, that it was sworn to before the justice of 
 a town court, and within the proper county, is, in the absence of other proof, 
 sufficiently evidential of the justice's jurisdiction. State v. Coombs, xxxii. 
 526. 
 
 5. A complaint merely charging " the crime of having sold a quantity of 
 spirituous liquors," charges no offence. The Court will not assume, that acts, 
 which may be consistent with innocence, and are not charged to be in viola- 
 tion of law, are criminal, merely because they are so denominated by the 
 magistrate. State v. Lane, xxxiii. 536. 
 
 6. To obtain a forfeiture under c. 211, of the Acts of 1851, the complaint 
 should distinctly aver, that the liquors are intended for sale in the city, town 
 or place, in which they are kept or deposited, and by some person not au- 
 thorized to sell the same in such city, town or place, under the provisions of 
 the Act. It need not aver, however, that they were intended for sale in the 
 shop or other building, wherein they were kept or deposited. State v. Bob- 
 inson, xxxiii. 564. 
 
 7. No person can be put on trial for an offence without any written com- 
 plaint or charge made against him. Where the complaint names no person as 
 the owner, keeper or claimant of the liquors, the swearing of a jury in the 
 form as of a criminal trial, is irregular ; and their finding the defendant guilty, 
 would be merely void. State v. Robinson, xxxiii. 564. 
 
 8. A complaint must allege with certainty the time when the offence was 
 committed ; but the proof need not be confined to that time. An allegation, 
 that the offence was committed " on or about" a specified day, is not sufficient. 
 State v. Baker, xxxiv. 52. 
 
 9. A complaint, employing Arabic numerals, or long used and well under- 
 stood abbreviations, to express the time when an offence was committed, or 
 when the complaint was made and sworn to, is good. State v. Beed, xxxv. 
 489. 
 
 10. " One glass of spirituous liquor" is a sufficient description in a com- 
 plaint for the quantity sold. State v. Beed, xxxr. 489. 
 
 11. In a complaint for violating c. 211, § 4, of the Acts of 1851, it is 
 lawful to insert two or more offences of the same nature, in different counts. 
 Lord V. State, xxxvii. 177. 
 
 12. And where a complaint under that section contained several counts for 
 apparently distinct offences, and on one only was the respondent convicted 
 before the justice, and fined ten dollars, from which judgment he appealed, 
 and in the appellate court was convicted, according to the record, of the 
 matters set forth in the complaint, and fined twenty dollars ; the record shows 
 
96 COMPLAINT.— COMPOSITION OF CLAIMS. 
 
 no error, even if a double penalty could not lawfully be imposed. Lord v. 
 State, XXXVII. 177. 
 
 13. In a complaint, under a by-law, imposing a penalty for mutilating any 
 ornamental tree, planted in any of the streets or public places of the city of 
 Portland, it is not necessary to allege, that the mutilation was malicious, care- 
 less or wanton. State v. Merrill, xxxvii. 329. 
 
 14. Before a magistrate can issue a warrant to search for spirituous liquors, 
 a luilding, part of which is used as a store and part for a dwellinghouse, it 
 should first be sho^vn to him, by the testimony of witnesses, that there was 
 reasonable ground for believing that such liquors were kept in such dwelling- 
 house, or its appurtenances, for illegal sale. Without such preliminary testi- 
 mony, the warrant and proceedings are void. State v. Spencer, xxxvili. 30. 
 
 15. On a complaint under c. 48, of the Acts of 1853, praying for a war- 
 rant to search for spirituous liquors, where the name of the person by whom 
 the liquors are alleged to be deposited, is stated, the warrant issued thereon 
 must require the officer to arrest such person, and have him forthwith before 
 the justice issuing it. State v. Leach', xxxviii. 432. 
 
 16. If the warrant in such case only require the respondent to be summon- 
 ed, and such is the prayer of the complaint, they are unauthorized, and in 
 violation of the law. State v. Leach, xxxviii. 432. 
 
 17. Where such complaint and warrant, by leave of the. justice, were 
 amended, and it then appeared that the complaint was made and warrant 
 issued on the fifth, commanding the officer to arrest the respondent and have 
 him before the justice on the eighteenth of the same month: — -HeM, the 
 complaint and warrant were illegal and void. State v. Leach, xxxviii. 432. 
 
 18. If a positive charge, verified by the complainant's oath, according to 
 the best of his knowledge and belief, is made in a complaint before a magis- 
 trate, it will authorize him to issue his warrant to arrest thereon. State v. 
 Hobhs, XXXIX. 212. 
 
 19. The facts disclosed on oath, by a complainant to the magistrate, to sat- 
 isfy him that a warrant should be issued, need not be stated in the complaint 
 or warrant, excepting in those cases specially required by the statute. Staie 
 V. Hohhs, XXXIX. 212. 
 
 20. The offence to which the accused, in a criminal proceeding, is called to 
 answer, must be distinctly alleged. But a complaint, that the respondent 
 kept or deposited certain intoxicating liquors, intended for unlawful sale, in 
 a certain place, or said liquors were kept or deposited, &c., by some other 
 person with his consent, is insufficient for uncertainty. State v. Moran, XL. 
 129. 
 
 COMPOSITION OF CLAIMS. 
 
 1. The term "settled" as used in c. 213, of the Acts of 1851, means an 
 intention to extinguish the claim, and not a liquidation or adjustment of the 
 amount due upon it. Austin v. Smith, xxxix. 203. 
 
 2. Where payment of part only of an acknowledged debt is made, and no 
 consideration is disclosed for an agreement to forbear to collect the amount 
 not paid, an action lies to recover such balance ; an agreement not to sue or 
 
CONDITION. 97 
 
 for delay of payment not being embraced by the statute provisions. Austin 
 
 V SimitK. -iflfXTX. 203. 
 
 V. Smith, XXXIX. 203 
 
 See Action, 77 
 
 CONDITION. 
 
 I. WHEN PRECEDENT, OR SUBSEQUENT. 
 II. GENERALLY. 
 
 I. WHEN PRECEDENT, OR SUBSEQUENT. 
 
 1. The title to lands, granted by the Sovereign Power, upon a condition to 
 be subsequently performed mthia a limited time, wiU remain valid, untU such 
 grantor, by some Legislative Act, shall avail itself of a forfeiture. Little v. 
 
 Watson, XXXII. 214. 
 
 2. The time allowed for performing such a condition, prescribed in a grant, 
 made by Massachusetts prior to the separation, of lands situated in this State, 
 may be extended by the Legislature of that Commonwealth, notwithstanding 
 the separation. Little v. Watson, xxxii. 214. 
 
 3. A grant of land, conditioned for a subsequent payment to be made there- 
 for, though it reserves, toward such payment, a lien upon the lumber which the 
 grantee, may take therefrom, is a grant upon a condition subsequent. Until 
 an entry for condition broken, the land continues vested in the grantee. 
 Spofford V. True, xxxiii. 283. Hall v. Pickering, xl. 548. 
 
 4. In a promise by a creditor to his debtor, that he would relinquish a part 
 of the debt, upon payment of the residue at a specified time, satisfactory se- 
 curity being furnished, there is a condition precedent to be performed by the 
 debtor. Little v. Hohbs, xxxiv. 357. 
 
 5. Such a condition is not fulfilled by a tender, though seasonable, of the 
 security, as a payment. A neglect by the debtor to pay the agreed part at 
 the pay-day, absolves the creditor from his promise to relinquish the residue. 
 Little V. Hobbs, xxxiv. 357. 
 
 6. In a deed conveying land with a right to immediate possession, a con- 
 dition that a third person shall be allowed to have the use and occupation of 
 it for life, if he shall request it, is a condition subsequent. And in order to 
 revest the estate, after breach of a condition subsequent, an entry by the 
 grantor or his assigns, is indispensable. Tallman v. Snow, xxxv. 342. 
 Hall V. Pickering, XL. 548. 
 
 7. An unsealed agreement to convey land to the plaintiff at a special day, 
 and reciting that it was in consideration of a sum of money paid by the plain- 
 tiff and of another sum to be paid by a third person, (who in fact had never 
 agreed to pay it,) is upon a condition that the latter sum be paid before the 
 conveyance. Oilman v. Schwartz, xxxvi. 541. 
 
 II. GENERALLY. 
 
 8. A party, for whose benefit a condition subsequent is attached to a devise 
 
 13 
 
98 CONFUSION OF GOODS.— CONSPIEACY. 
 
 of real estate, being in possession at the time of the breach, is presumed to 
 hold for the purpose of enforcing the forfeiture. Such party may waive the 
 forfeiture ; and acts, inconsistent with the claim of forfeiture, may sufficiently 
 evidence such waiver. Andrews v. Senter, xxxii. 394. 
 
 9. It is a general rule in a conveyance of real estate on certain conditions, 
 that any one interested in the conditions or in the land, may perform them. 
 Wilson V. Wilson, xxxviii. 18. 
 
 10. Where the condition of a grant of land is, that the grantee shall main- 
 tain and support in a comfortable manner, persons therein named, no personal 
 trust is charged upon him, and the support may be furnished by others. 
 Wilson V. Wilson, xxxviii. 18. 
 
 CONFUSION OF GOODS. 
 
 1. The doctrine of " confusion of goods," may apply to mill-logs and other 
 lumber. Hesseltine v. Stochwell, xxx. 237. Bryant v. Ware, xxx. 295. 
 
 2. Confusion of goods has occurred when the intermixture is such that each 
 one's property can no longer be distinguished. Hesseltine v. Stochwell, xxx. 
 237. 
 
 3. When there has been a confusion of goods, the common law assigns the 
 whole property to the innocent party, without liability to account, except in 
 certain cases or conditions of the property. Hesseltine v. Stochwell, xxx. 237. 
 
 4. There is no forfeiture, if the goods have been intermixed without fraud. 
 And even in cases of fraudulent intermixture, there is no forfeiture if the 
 goods be of equal value. Jlach owner is entitled to his proportion of the 
 whole. Hesseltine v. Stochwell, xxx. 237. 
 
 CONSIDERATION. 
 See Bills, &c. Contract, 31, 37. 
 
 CONSIGNMENT. 
 See Bailment. Shipping, 64-67. 
 
 CONSPIRACY. 
 
 1 . In a charge for a conspiracy, if the act to be done is in itself illegal, the 
 indictment need not set forth the means by which it was to be accomplished. 
 
CONSTABLE. 99 
 
 But if the act is not in itself unlawful, but becomes so from the purposes for 
 which, and the means by which, it is to be done, the indictment must set out 
 enough to show the illegality. State v. Bartlett, xxx. 132. State v. Bipley, 
 XXXI. 386. 
 
 2. The crime of conspiracy to obstruct, hinder and injure the administra- 
 tion of public justice consists in the unlawful purpose, and not by illegal and 
 criminal means to effect a purpose, not unlawful. State v. Bartlett, xxx. 132. 
 
 3. An indictment, charging a conspiracy to hinder and injure the adminis- 
 tration of public justice, by obtaining a counterfeit bill from the hands of a 
 person to whom it had been uttered, so that it could not be had as evidence 
 upon a criminal prosecution, is sufficient. It need not allege the means 
 used, nor that the bill was in the hands of the person named, nor need the 
 bill be 'described, nor need it be alleged that the defendants knew that it had 
 been uttered wilfully. State v. Bartlett, xxx. 132. 
 
 4. A conspiracy unlawfully to do an injury to the person of an individual, 
 or to do any unlawful act, injurious to the administration of public justice, is 
 a statute offence ; and no overt act is necessary to constitute the crime, for it 
 is a complete and consummate offence, of itself. State v. Bipley, xxxi. 386. 
 
 5. In conspiracy, acts maybe evidence of the combination, and if the com- 
 bination be unlawful, the acts need not be set forth for any other purpose. 
 State V. Bipley, xxxi. 386. 
 
 6. In an indictment for a conspiracy, if the means, by which the alleged 
 purpose was to be accomplished, be not set out, the purpose itself should ap- 
 pear to have been unequivocally Ulegal and forbidden by law. It is not 
 enough, that it sufficiently describe the crime attempted to be charged ; but it 
 should also state the facts necessary to constitute the offence. State v. Hew- 
 ett, XXXI. 396. 
 
 7. Where such facts are not stated, the indictment does not sufficiently 
 charge an offence at common law. State v. Hewett, xxxi. 396. 
 
 8. To conspire to " injure the property" of an individual, is a crime against 
 the statute. But it must be an injury to the property m rem, by which it is 
 destroyed, or its value diminished ; and not such as might tend to lessen the 
 general property of another. State v. Hewett, xxxi. 396. 
 
 See Action, 67, 69. 
 
 CONSTABLE. 
 
 1. Neither by the common law, nor by § 18 of c. 104, of R. S. of 1841 
 do actions of tort for the misfeasances of sheriffs or constables survive against 
 their legal representatives. Gent v. Gray, xxix. 462. 
 
 2. By R. S. of 1841, c. 104, a constable is authorized to serve "writs and 
 precepts, m personal actions, wherein the sum demanded does not exceed one 
 hundred doUars. And the word "precept" includes executions. Morrell v 
 Cook, XXXI. 120. Berry v. Staples, xxxm. 494. Morrell v. Cook, xxxt. 
 
 3. A constable may attach real estate upon a writ in such action, and in 
 the ser.T_ce of the execution he may levy real estate. Morrell v. Cook, xxxi. 
 120. Morrell v. Cook, xxxv. 207. 
 
100 CONSTITUTIONAL LAW. 
 
 4. The duty and authority of constables in levying executions, within their 
 jurisdiction, upon real estate, are co-extensive with those of sheriffs and their 
 deputies. Morrell v. Gooh, xxxi. 120. 
 
 5. Any writ or precept in a personal action, wherein the damages demand- 
 ed do not exceed one hundred dollars, may be served by the constable of a 
 town, upon any person within that town, though such person may be an in- 
 habitant of another town. Blanchard v. Bay, xxxi. 494. 
 
 6. A constable may make a legal service of a writ within his jurisdiction, 
 though it is not directed to him. The direction, being matter of form, can- 
 not be necessary to give it validity. Morrell v. Cook, xxxv. 207. 
 
 7. Constables can only be chosen by a major vote of the votes cast at the 
 meeting. And to constitute an election to such office, it is essential that the 
 person claiming to be chosen, should at the time he was voted for be present- 
 ed distinctly to the mind of each elector. Crowell v. Whittier, xxxix. 530. 
 
 8. The vote of a town, that whoever should make the lowest bid for col- 
 lecting the taxes, should be the constable, will not authorize the person mak- 
 ing such bid to perform the duties of that office. Crowell v. Whittier, 
 XXXIX. 530. 
 
 CONSTITUTIONAL LAW. 
 
 I. OEGANIZATION OF THE DEPARTMENTS OF GOVERNMENT. 
 
 n. LAWS AFEECTING CONTRACTS OR VESTED RIGHTS, 
 
 ni. EX POST FACTOy. AND RETROSPECTIVE LAWS. 
 
 IV. LAWS TO TAKE PRIVATE PROPERTY FOR PUBLIC USES. 
 
 V. LAWS AFFECTED BY THE DECLARATION OF RIGHTS. 
 
 VI. OTHER LAWS AND GENERAL PRINCIPLES. 
 
 I. ORGANIZATION OF THE DEPARTMENTS OF GOVERNMENT. 
 
 1. The provisions of sect. 5, Art. 4, part 2d, of the constitution, require 
 the Senate to determine who are elected Senators in a district, before other 
 persons can, by joint ballot, be elected Senators for such district. Opinion 
 of Judges, xxxv. 563. 
 
 2. Said section contemplates that the Senate shall determine who are 
 elected Senators in all the districts, and that all existing vacancies should be 
 ascertained and declared before proceeding to such election. Opinion of 
 Judges, xxxv. 563. 
 
 3. Each House may rightfully refuse to meet the other to make such 
 elections by joint ballot, until all existing vacancies have been so ascertained 
 and declared ; whUe this mode is not . regarded as so essential, that Senators 
 could not, by the agreement of both Houses, be legally elected before all 
 existing vacancies had been so ascertained and declared. Opinion of the 
 Judges, Rice, J., dissenting, xxxv. 563. 
 
 4. The provisions of that section do not contemplate a meeting of the 
 members of the two Houses, to make such elections by joint ballot, for the 
 purpose of filling a part only of the vacancies existing in the Senate on the 
 
CONSTITUTIONAL LAW. 101 
 
 first Wednesday of January. Those provisions are not regarded as forbidding 
 such a course, when adopted by the agreement of both Houses. Opinion of 
 Judges, Rice, J., dissenting, xxxv. 563. 
 
 5. A Senator, elected by the members of the House of Representatives, 
 and such Senators as shall have been elected, to fill a vacancy existing on the 
 first Wednesday of January, is not entitled to vote in a meeting or convention 
 of the members of the two Houses, held for the purpose of filling vacancies 
 in the Senate, existing on the first Wednesday of January. Opinion of 
 Judges, Rice, J., dissenting, xxxv. 563. 
 
 6. When less than a majority of the whole number of Senators, required 
 by law, appear, by the lists returned to the office of the Secretary of State, 
 to be elected, such Senators, less than a majority, constitute " the Senate," 
 in the sense in which that term is used in the constitution. Opinion of 
 Judges, xxxv. 563. 
 
 7. Such Senators, less than a majority, can exercise the powers, and per- 
 form all the duties, required by the constitution to be exercised by the Senate 
 to procure an organization of that House. Opinion of Judges, xxxv. 563. 
 
 8. Such Senators, less than a majority, can decide upon the legality of 
 election returns, as shown by the lists returned to the Secretary's office, re- 
 ceive evidence of election other than is contained in such lists, and determine 
 elections upon such evidence. Opinion of Judges, XXXT. 563. 
 
 9. Such Senators can declare vacancies in the Senate, and determine who 
 are constitutional candidates. And they may also determine upon what evi- 
 dence they will do it. Opinion of Judges, xxxt. 563. 
 
 10. When the House of Representatives has been duly organized, and a 
 minority only of the whole number of Senators, required by law, appear to be 
 elected, the members of the House, and a minority of such Senators as ap- 
 pear to be elected, cannot legally form a conveiition for filling vacancies in 
 the Senate, all of such Senators being duly notified, but a majority refusing 
 to act. Opinion of Judges, xxxv. 563. 
 
 n. LAWS AFFECTING CONTRACTS OR VESTED RIGHTS. 
 
 11. Chapter 72, of the Acts of 1848, creating a lien on lumber, dec, is no 
 abridgment of the rights of the citizen, secured to him by § 1, art. 1, of 
 " acquiring, possessing and protecting property." Spofford v. True, xxxiii. 
 283. 
 
 See CoNTSACT, 8. 
 
 in. EX POST FACTO, AND RETROSPECTIVE LAWS. 
 
 12 If § 10, of c. 144, of R. S. of 1841, had been clearly retrospective, it 
 would have been unconstitutional ; but it was prospective only, and hence 
 constitutional. Given v. Marr, xxvii. 212. 
 
 13. The Legislature has power to pass laws altering, modifying or even 
 taking away remedies for the recovery of debts, without incurring a violation 
 ^ the provisions of the constitution, relating to ex post facto laws. Lord v. 
 Vhadhourne, xlii. 429. 
 
102 CONSTITUTIONAL LAW. 
 
 rV. LAWS TO TAKE PRIVATE PROPERTY FOR PUBLIC USES. 
 
 14. An article in the constitution provides, that " private property shall not 
 be taken for public use, without just compensation. By the " taking," with- 
 in the scope of that provision, is meant such an appropriation as deprives the 
 owner of his title or a part of his title. Cushman v. Smith, xxxiv. 247. 
 Jordan v. Woodward, XL. 317. Nichols v. 8. & K. B. B. Co., XLiii. 356. 
 
 15. That provision, when applied to real estate, prevents the acquisition of 
 any title or easement or permanent appropriation without the actual payment 
 or tender of a just compensation. Cushman v. Smith, xxxiv. 247. Nich- 
 ols V. S. & K. B. B. Go.. XMii. 356. 
 
 16. It does not prohibit the legislative department from authorizing an ex- 
 clusive occupation of private property temporarily, as an incipient proceeding 
 to the acquisition of a title to it or to an easement in it. Cushman v. Smith, 
 xxxiT. 247. Nichols v. S. & E. B. B. Co., xiiii. 356. 
 
 1 7. The right to such temporary occupation as an incipient proceeding, will 
 become extinct by an unreasonable delay to perfect proceedings, including the 
 actual payment or tender of compensation to acquire a title to the land or of 
 an easement in it. Cushman v. Smith, xxxiv. 247. Nichols v. S. & K. 
 B. B. Co., XLIII. 356. 
 
 18. The mill Act, c. 126, of R. S. of 1841, is constitutional. Though, if 
 it were a new question, its constitutionality might well be doubted. It pushes 
 the power of eminent domain to the very verge of constitutional inhibition. 
 Jordan v. Woodward, XL. 317. 
 
 19. The reasons for the policy of such legislation have long since ceased 
 to be potential, and the extension of the rights of mill-owners over private 
 property cannot be allowed by implication: — Hence, the riparian proprietor 
 of lands overflowed by means of a dam, may occupy the land so overflowed, 
 by erecting piers thereon and constructing booms, and thereby exclude the 
 lumber of the mUl-owner. Jordan v. Woodward, XL. 317. 
 
 V. LAWS AFPECTED BY THE DECLARATION OF EIGHTS. 
 
 20. The constitutional requirement, that " a special designation of the 
 place to be searched" shall be made, is not answered by words, which, if 
 used in a conveyance, would not convey it, and which would not confine the 
 search to one building or place. State v. Bohinson, xxxiii. 564. 
 
 21. Under that provision, an article to be searched for, may be described 
 by its generic name, if it have no peculiar marks or qualities by which it can 
 be distinguished from other articles of the same general name. State v. 
 Bohinson, xxxiii. 564. 
 
 22. " The law of the laM," as used in the Constitution, does not mean an 
 Act of the Legislature ; but afiirms the right of trial according to the pro- 
 cess and proceedings of the common law. Saco v. Wentworth, xxxvii. 165. 
 
 24. An Act of the Legislature, which renders it difiicult for the accused to 
 obtain the privilege of a trial by jury, beyond what public necessity requires, 
 ii^airs individual rights, and is inconsistent with the Constitution. Saco v. 
 
 Wentworth, xxxvii. 165. 
 
 25. An Act which requires conditions, for the purpose of preventing a 
 trial by jury, is opposed to the spirit of the constitution, and so far as it 
 
CONSTITUTIONAL LAW. 103 
 
 deprives one of this means of protection, is void. Saoo v. WentwortJi, 
 xxxTii. 165. . 
 
 26 That part of § 6, of c. 211, of the Acts of 1851, which requires that 
 a bond shall be given to the town, &c., impairs the right secured to the 
 accused, hy Art. 1, § 6, of the constitution, and is inoperative and void. 
 8aco V. Wentworih, xxxvii. 165. 
 
 27 A law is not unconstitutional, because it may prohibit what one niay 
 conscientiously think right, or require what he may conscientiously think 
 wrong. Bonahoe v. Bichards, xxxviii. 379. 
 
 28. A requirement by the Sup. School Committee, that the Protestant 
 version of the Bible shall be read in the public schools of their town, bythe 
 scholars who are able to read, is in violation of no constitutional provision, 
 and is binding upon all the members of the schools, although composed of 
 divers religious sects. Donalwe v. Bichards, xxxYlli. 379. 
 
 29. Art. 1, § 6, which secures to the accused the right to have compulsory 
 process for obtaining witnesses in his favor, does not authorize the accused 
 to require of the State, payment of the fees of the witnesses necessary in the 
 defence ; it is only for the process by which they may be summoned. State 
 V. Waters, xxxix. 54. 
 
 30. The Act of 1853, c. 48, for the "suppression of drinking-houses," &c., 
 does not violate any of the principles in the declaration of rights. Gray v. 
 Kimhall, xlii. 299. 
 
 VI. OTHER LAWS AND GENERAL PRINCIPLES. 
 
 31. The Legislature may authorize the construction of a bridge across nav- 
 igable or tide waters, although the navigation may thereby be impaired or in- 
 jured. Broion V. Chadhourne, xxxi. 9. Bogers v. K. & P. B. B. Co., 
 xxxY. 319. Moor v. Veazie, xxxi. 360. Knox v. Chaloner, xxil. 150. 
 State V. Freeport, xiiii. 198. 
 
 32. Upon a bill in equity, praying for an injunction, an Act of the Legis- 
 lature ought not to be adjudged unconstitutional, on a preliminary hearing for 
 the injunction, and before an examination into the general merits of the bUl. 
 Deering v. Y. & G. B. B. Go., xxxi. 172. 
 
 33. A prayer for an injunction, grounded upon an allegation, that the pow- 
 ers granted by the charter, were in violation of the constitution, must be de- 
 niedv until the general merits of the bill should be examined. Deering v. 
 Y. & G. B. B. Go., XXXI. 172. 
 
 34. An action to recover damage for destroying communication between 
 parts of land which lie upon the opposite sides of a railroad ti-ack, either by 
 taking the strip of land for the site of the road, or by the erection thereon of 
 an embankment, proceeds, not upon the ground that the land was illegally 
 taken, but that the power, granted by the charter, had been transcended or 
 abused. It therefore presents no basis for a decision as to the constitutional- 
 ity of that power. Mason v. Ken. & P. B. B. Co., xxxi. 215. 
 
 35. On a summary hearing, upon a petition for a mandamus, the Court 
 will not determine the constitutionality of a law, involving merely the rights 
 of third persons. Smyth v. Titcomb, xxxi. 272. 
 
 36. An Act of the Legislature granting to certain persons the exclusive right 
 to navigate certain portions of the Penobscot river, above tide waters, for a 
 
104 CONSTITUTIONAL LAW. 
 
 certain time, is constitutional. Moor v. Veazie, xxxi. 360. Moor v. Veazie, 
 
 XXXII. 343. 
 
 37. The constitution of this State invests the Legislature with "full power 
 to make and establish all reasonable laws and regulations for the defence and 
 benefit of the people, not repugnant to said constitution or that of the U. S." 
 Moor V. Veazie, xxxii. 343. 
 
 38. Whether an enactment is reasonable, or for the benefit of the people, 
 it is for the Legislature alone to decide. Moor v. Veazie, xxxii. 343. 
 
 39. It is not violative of any constitutional provision : — 
 
 1st. That one of the justices of the peace resident in a certain town should 
 be selected to exercise, exclusively, the powers of that office within the town : 
 2d. That such selection should be made by the voters of the town : or, 
 3d. That the one so selected should be vested with some superadded pow- 
 ers, by an Act of the Legislature of which he was a member. State v. 
 Coomhs, XXXII. 526. 
 
 40. It is competent for the State, by legislative enactment, operating pros- 
 pectively, to determine, that articles, which are injurious to the public health 
 or morals, shall not constitute property within its jurisdiction. Preston v. 
 Drew, XXXIII. 558. State v. Ourney, xxxvii. 156. Oray v. Kimball, 
 XLll. 299. 
 
 41. If it so conclude in relation to spirituous and intoxicating liquors, when 
 designed to be used as a beverage, the conclusion would be justified by the 
 experience and history of man, and would furnish no occasion to complain 
 that any provision of the constitution had been violated. Preston v. Drew, 
 
 XXXIII. 558. 
 
 42. The Legislature has not constitutional power, after a general represen- 
 tative apportionment has been made, in conformity with the constitution, to 
 alter the Representative Districts so established, until the next general ap- 
 portionment. Opinion of Judges, xxxiii. 587. 
 
 43. It was not competent for the Legislature of 1850, to incorporate the 
 town of Kennebec, in the County of Kennebec, from parts of five difierent 
 Representative Districts, as established by the last general apportionment, 
 and annex said town to the Representative District of Readfield and Fayette, 
 so as to give the inhabitants of said town of Kennebec the right to vote in 
 the election of representatives to the Legislature, with the inhabitants of 
 Readfield and Fayette. Opinion of Judges, xxxiii. 587. 
 
 44. When the Governor and Council, whose duty it is to open and compare 
 the copies of the records of votes given for County Commissioners, under the 
 Act of Feb. 22d, 1842, have performed that duty, and have ascertained and 
 determined who have been elected, and have duly commissioned the persons so 
 ascertained and determined to be elected, their proceedings cannot be revised 
 by a subsequent Governor and Council. Opinion of Judges, xxxvili. 597. 
 
 45. If the Governor and Council, so opening and comparing the votes, as- 
 certain that one A. C. D. is elected, and a commission issue accordingly ; and 
 a subsequent Executive find there is no such man, but that the voters intend- 
 ed their votes for A. E. D., it is not competent for them to issue a new com- 
 mission to A. E, D., nor to throw out the votes for A. C. D. and issue a new 
 commission to such person who is eligible to said office, as shall appear to have 
 the highest number of votes ; but under that state of facts, there is a vacancy 
 which the subsequent Executive may fill by appointment. Opinion of Judges, 
 xxxviii. 597. 
 
CONTAGIOUS SICKNESS. -CONTEMPT OF COUET. -CONTRACT. 105 
 
 46 So much of the 13th § of c. 48, of the Acts of 1853, as requires the 
 giving of the bond provided for in § 6, of c. 211, of the Acts of 1851, is 
 unconstitutional and void. Saco v. Woodsum, xxxix. 258. 
 
 47. A judicial tribunal cannot declare void, a law passed by the Legisla- 
 ture and clearly within the scope of its constitutional powers, because the 
 law, in the opinion of the Court, is contrary to the principles of natural 
 justice. Lord v. Chadhourne, xlii. 429. 
 See Bank, 24. 
 
 CONTAGIOUS SICKNESS. 
 
 A town is not liable to pay a physician for his services, in attending upon 
 persons sick with a contagious disease, without his being employed by the 
 selectmen of the town; although they have taken measures, under c. 21, of 
 the R. S. of 1841, to prevent the access of others to the place, and have ap- 
 pointed a person to superintend the house and take care of its inmates. The 
 knowledge of, and assent to, his performing his services, is not enough. Kel- 
 log v. St. George, xxviii. 255. 
 
 CONTEMPT OF COURT. 
 
 A party to a bill, who, in his answer, professes himself ready to pay a note 
 which he had given, when it could be done with safety to himself; and, after 
 the decree that the same should be paid to a receiver appointed by the Court, 
 sets up a prior part payment of the note, and refuses to pay the full amount, 
 is liable and punishable for a contempt of Court. Gilmore v. Gilmore, XL. 
 50. 
 
 CONTINGENT REMAINDER. 
 See Waste. 
 
 CONTRACT. 
 
 I. WHAT WILL CONSTITUTE OR PROVE A CONTRACT. 
 
 IL VALIDITY OF. 
 
 in. CONSIDERATION. 
 
 IV. RECISION. 
 
 V. WAIVER, MERGER OR DISCHARGE. 
 
 VI. PERFORMANCE AND BREACH. 
 
 VII. CONSTRUCTION. 
 
 14 
 
106 CONTRACT. 
 
 I. WHAT WILL CONSTITUTE OR PROVE A CONTRACT. 
 
 1. From the mere occupation of the plaintiflF's land, (no permission, or 
 recognition of his title being shown,) the law implies no promise to pay him 
 for the use of it. Eastman v. Howard, xxx. 58. 
 
 2. A written agreement by a debtor, that in consideration of his indebted- 
 ness he will let his creditor have certain specified articles at a time and place 
 specified, at market price, is a valid contract, and imposing on the debtor the 
 duty to set out the articles at the time and place agreed. Bates v. Churchill, 
 
 XXXII. 31. 
 
 3. A promise, not in writing, made by a debtor, in consideration of a pay- 
 day extended, that he will not take advantage of the statute of limitations, 
 wUl not support an action. Hodgdon v. Chase, xxxii. 169. 
 
 4. A promise by a debtor, made without legal consideration, that before 
 the pay-day of his debt arrives, he will make a partial payment, does not ex. 
 pedite the creditor's right of action. Young v. Ward, xxxiii. 359. 
 
 5. Neither wUl a partial payment in advance, expedite the right of action 
 for the balance. Young v. Ward, xxxiii. 359. 
 
 6. Where a written instrument, intended as an agreement to be signed by 
 both parties, shows that services were to be rendered by the plaintifi, for 
 which he was to be paid at a future day, the term of credit is binding upon 
 him, if he admit the services to have been performed under that agreement, 
 although the instrument was signed by himself only. Young v. Ward, 
 
 XXXIII. 359. 
 
 7. The law will not raise an implied contract, when there existed no legal 
 - right to make an express contract. Simpson v. Bowden, xxxiii. 549. 
 
 8. Private corporations exist by legislative grants, conferring powers, rights 
 and privileges, for special purposes ; and these grants are essentially contracts, 
 which the Legislature cannot impair or change without the consent of the 
 corporation. Yarmouth v. North Yarmouth, xxxiv. 411. 
 
 9. A party in interest, for whose benefit a promise has been made in the 
 name of his agent, may maintain a suit thereon in his own name ; but only 
 when there was a consideration derived by one party from another party to 
 the suit. M. H. Co. v. Coyle, xxxv. 405. 
 
 10. One, uniting with others in a joint stock association for a business 
 enterprise, by signing a general subscription-promise, but making no provision 
 for becoming a corporation, cannot be held by the mere force of the subscrip- 
 tion to pay his shares, in a suit by the corporation, afterwards created for 
 completing the enterprise, and consisting of some or all of the other associ- 
 ates, there being no privity. Machias H. Co. v. Coyle, xxxv. 405. 
 
 11. In such a suit, no liability can be deduced from expenditures made by 
 the unincorporated association ; there being no privity ; nor from expend- 
 itures made by the corporation itself, there being no consideration. Machias 
 H, Co. V. Coyle, xxxv. 405. 
 
 12. A person entering a manufacturing establishment, as an operative, with 
 a knowledge that its regulations provide for a forfeiture of wages, in case of 
 willful non-compliance, is considered to have assented to such provision, 
 though he have not signed it ; and such an assent constitutes a valid contract. 
 Harmon v. S. F. Manuf'g Co., xxxv. 447. 
 
 13. Where the parties to a suit pending in court, agree in writing to refer 
 it, with stipulations that it shall be withdrawn, each party to pay hia own 
 
CONTRACT. 107 
 
 cost ; if one of the referees declines to act, the agreement becomes inopera- 
 tive,'and the action may stand for trial. Chapman v. Seccomh, xxxvi. 102. 
 
 II. VALIDITY OF A CONTRACT. 
 
 14. Where one had not acquired a lawful right to float his logs over the 
 land of another, without his consent, through an artificial channel made by 
 the owner, and is resisted and obstructed in the use of such channel, and 
 makes a contract with him to pay a sum of money for the permission to float 
 his logs, such contract is valid. Dwinel v. Barnard, xxviii. 554. Wells, 
 J., dissenting. 
 
 15. A contract may be avoided by proof of defendant's insanity at the 
 time of contracting. Thornton v. Appleton, xxix. 298. 
 
 16. A promise, made in consideration that the promisee would procure the 
 discontinuance of an indictment, in which he was prosecutor, is invalid. 
 Shaw V. Seed, xxx. 105. 
 
 17. A contract in violation of a statute, when introduced as evidence of a 
 right to recover thereon, may be effectually resisted by a party to it, or by 
 one in legal privity, but not by a mere stranger. Ellsworth v. Mitchell, 
 XXXI. 247. 
 
 18. Where a contract not malum in se, made in violation of a statute, has 
 been executed, a party cannot recover it back, unless he can show, that it 
 was not paid for value actually received, but was obtained wrongfully or by 
 undue advantage ; or unless he can exhibit a statute expressly authorizing 
 such a recovery. Ellsworth v. Mitchell, xxxi. 247. 
 
 19. A contract for the sale and purchase of pressed hay, to be performed 
 at a future day, upon which the delivery is to be made, cannot be enforced 
 by the seller, if the hay at the time of delivery was not branded. Buxton v. 
 Hamblen, xxxii. 448. 
 
 20. No action can be maintained for the breach of a contract to employ 
 the plaintiff, at stipulated wages, unless there was some stipulation as to the 
 length of time, for which the employment was to continue. Blaisdell v. 
 Lewis, XXXII. 515. 
 
 21. A contract obtained by fraudulent representations cannot be sustained 
 by the fraudulent party to the injury of the party imposed upon. Pratt v. 
 Philhrook, xxxiii. 17. Pratt v. Phillrooh, xli. 132. 
 
 22. To avoid a contract, for misrepresentation, it must appear, that a de- 
 ception was intended, that it was successful, and that it was a damage to the 
 party deceived. Pratt v. Philhrook, xxxiii. 17. Pratt v. Phillrooh. XLI 
 132. 
 
 23. Though a party may have been deceived by fraudulent representations. 
 It IS not usual for courts to interfere in his behalf, if he had full means of 
 ascertammg the truth and detecting the fraud, and yet neglected to do so 
 Pratt V. PUlhroolc, xxxiii. 17. Pratt v. Philhrook, xii. 132. 
 
 24. An agreement, by the principal, made after having paid his note, that 
 It should rest, for his benefit, in the hands of a third person, in order that the 
 prmcipal might thereby coerce the surety to relinquish some right in another 
 matter, was without consideration and void. Andrews v. Andrews xxxiii. 
 178. ' 
 
 25. A promise made to the principal by the surety, after such payment. 
 
108 CONTKACT. 
 
 that, for the sake of having it. canceled, he would relinquish his right in the 
 other matter, and that the note might lie in the hands of such third person, 
 for the benefit of the principal, could impart no validity to the note. Andrews 
 V. Andrews, xxxiii. 178. 
 
 26. A parol agreement, made by the grantee at the time of the sale and 
 conveyance of land, to pay a sum additional to that expressed in the deed, is 
 valid, though such additional sum rests in contingency. Nicherson v. Saun- 
 ders, XXXVI. 413. 
 
 27. A contract between an attorney and the plaintiff, that if the latter 
 would permit the former to commence a suit in his name, and the action failed, 
 he would pay aU costs, is illegal. Low v. Hutchinson, xxxvii. 196. 
 
 28. A ^vritten contract, by the owner of a quantity of hay, with the tenant 
 of a farm, that he may use the hay, the same to remain the property of the 
 original owner, and the manure made therefrom to be and remain also his 
 property as it is made, is lawful and valid. Moore v. Holland, xxxix. 307. 
 
 29. A contract to sell, and a delivery of, a quantity of boards, sufficient to 
 make a certain number of sugar box shooks, is legal, though no survey was 
 ever made. Rogers v. Humphrey, xxxix. 382. 
 
 30. The absence of previous or contemporaneous assent to a transaction, 
 renders its ultimate validity contingent ; and a subsequent assent does not re- 
 late back, to the prejudice of a party whose conduct has been guided by the 
 actual transaction ; especially, if, when the act was first communicated, he 
 disaffirmed it. Fiske v. Holmes, xli. 441. 
 
 See Attoeneys, &c., 7, 14. 
 
 CoNTKACT, 2, 12. 
 
 ni. CONSIDERATION. 
 
 (a) In General. 
 
 (b) Want ok failuke op consideration. 
 
 (a) In general. 
 
 31. A parol contract to discharge one of two joint debtors, if made with- 
 out consideration, cannot be enforced. Chase v. Vaughan, xxx. 412. 
 
 32. A written agreement by a debtor, that, in consideration of his indebt- 
 edness, he will let his creditor have certain specified articles, at a time and 
 place specified, at the market price, evidences a sufficient consideration, and 
 imposes on the debtor the duty to set out the articles for the creditor at the 
 time and place assigned. Bates v. Churchill, xxxii. 31. 
 
 33. An agreement by a creditor to discharge a debt, upon receiving a less 
 sum than is due to him, is no consideration for the agreement to relinquish 
 the balance. Lee v. Oppenheimer, xxxii. 253. 
 
 34. The right of holding shares, and the privileges of a stockholder, are a 
 sufficient consideration for a promise to the corporation to take such shares 
 and pay for them. K. & P. E. R. Co. v. Jarvis, xxxiv. 360. 
 
 35. The inconvenience to a debtor of procuring security for a part of the 
 debt, is a sufficient consideration to support a promise by the creditor, to re- 
 linquish the residue. Little v. Hobls, xxxiv. 357. 
 
 36. The sealing of a contract implies and carries with it internal evidence 
 of a consideration. Wing v. Chase, xxxv. 260. Augusta Bank v. Hamblet, 
 XXXT. 491. Neil v. Tenney, xiii. 322. 
 
CONTRACT. 109 
 
 37. Labor performed under a contract made -with a minority of a committee 
 of a town, but afterwards ratified by a majority acting within the scope of 
 their authority, though performed prior to the ratification, and though it was 
 of no value to the town, is a sufficient consideration on which to maintain a 
 suit against the town upon the contract. Hanson v. Dexter, xxxvi. 516. 
 
 See' Bankruptcy, 13, 14. 
 
 (b) Want or failure of consideration, 
 
 38. At common law, the payment of a part only of a sum due, at the time 
 and place of payment on a promise to cancel the whole claim, discharges the 
 indebtedness to the amount of the sum paid and nothing more, there being 
 no valid consideration for the promise to discharge. But the least considera- 
 tion in such a case is sufficient. Hinckley v. Arey, xxvii. 362. White v. 
 Jordan, xxvii. 370. Lee v. Oppenheimi&r, xxxii. 253. 
 
 39. Thus, where the defendant contemplated taking the benefit of the 
 bankrupt Act, which was then in force, of which the plaintiff was informed, 
 and thereupon accepted the terms of composition ofiered, and the defendant 
 took no further steps to obtain relief under the bankrupt Act, it was held 
 sufficient. Hinckley v. Arey, xxvii. 362. 
 
 40. So where the acknowledgment of satisfaction is by deed ; or any other 
 articles than money ; or the note of a third person for a smaller sum than the 
 amount of the debt ; or a less sum than is due, before the day of payment, 
 or paid at another place than that limited by the contract are accepted by the 
 creditor in full satisfaction of the debt. Lee v. Oppenheimer, xxxii. 253. 
 
 41. So the inconvenience to a debtor of procuring security for a part of the 
 debt, is sufficient. Little v. Hohbs, xxxiv. 357. 
 
 IV. RESCISSION. 
 
 42. Where a purchase has been made of a commodity, to be received at a 
 future day, at a fixed price payable at a specified, time, the seller may rescind 
 the contract, after a failure by the purchaser to pay the fuU purchase money, 
 at the stipulated time. Dwinel v. Howard, xxx. 258. 
 
 43. And if the purchaser receives a part of the commodity, and pays to 
 the seller a greater sum than that part, at the agreed rates, would amount to ; 
 yet, if he fail to pay the residue, at the stipulated time, the seller may rescind 
 the contract as to the residue, and without liability to pay back any pait of 
 the amount which he had received. Dwinel v. Howard, xxx. 258. 
 
 44. It is a general rule, that where there is a special contract, it must be 
 observed, and a party cannot resort to an implied one. But fraud and 
 imposition constitute an exception ; and the party defrauded has a right to 
 rescind the special contract, and he is then remitted to the implied one. 
 Jenhs v. Matthews, xxxi. 318. 
 
 45. Ignorance of the law, with a full knowledge of the facts, furnishes no 
 ground to rescind agreements, or to set aside solemn acts of the parties. 
 Jenhs V. Matthews, xxxi. 318. 
 
 46. An agreement under seal to withdraw an action from the Court, is not 
 rescmdable by one of the parties alone. Hatchings v. Buck, xxxii. 277. 
 
 47. A contract for the sale and purchase of property, though founded upon 
 
110 COlfTKACT. 
 
 the misrepresentations of the seller, cannot be wholly rescinded therefor, if, 
 prior to the completion of the sale, the purchaser had become acquainted 
 with the whole facts, and yet confirmed the bargain. PrcM v. Philbrook, 
 xxxm. 17. Pratt v. Philhrooh, xii. 132. 
 
 48. Where a party to a contract, obtained by fraud, would rescind it, he 
 must restore whatever he has obtained by it, within a reasonable time. 
 Tisdale v. Buckmore, xxxiii. 461. Herrin y.Lihhey, xxxvi. 350. Gushing 
 V. Wyman, xxxvill. 589. Emerson v. McNamara, xli. 565. 
 
 49. A contract, obtained through false and fraudulent representations, may 
 be rescinded or affirmed at the election of the party defrauded. Herrin v. 
 Libhey, xxxvi. 350. Emerson v. McNamara, xli. 565. 
 
 50. Such party, in order to rescind a contract, must make known his 
 election to rescind and restore the other party to his former condition, (unless 
 payment was made by the note of the vendee,) in a reasonable time after 
 discovering the fraud. Herrin v. Libhey, xxxvi. 350. Gushing v. Wyman, 
 XXXYIII. 589.* Emerson v. McNamara, xli. 565. 
 
 51. A contract for the sale and purchase of property, obtained by the 
 concealment of material facts, going to the essence of the contract, and 
 affecting the whole bargain, will be rescinded, whether such concealment was 
 the result of forgetfulness or intention. Pratt v. Philbrook, xli. 132. 
 
 52. Although the party who seeks to rescind such contract, may have 
 confirmed it after a knowledge of some of the facts, yet, if sufficient facts 
 were unknown to him, at the time of confirmation, to authorize a rescission, 
 such confirmation cannot effectually prevent it. Pratt v. Philbrook, xli. 132. 
 
 See Fkattd, 36, 37, 38. 
 
 V, WAIVER, MERGER OR DISCHARGE. 
 
 53. In an action for a breach of promise of marriage, the fact that the 
 female plaintiff had committed fornication with other men is no defence, if, 
 at the time of making the contract, the defendant had knowledge of the mis- 
 conduct ; nor if such contract, made before, but continued by him as a sub- 
 sisting contract after he had knowledge of it. Snowman v. Wardwell, 
 xxxii. 275. 
 
 54. A contract, made by a citizen of Massachusetts with a citizen of this 
 State to pay a sum of money, is not discharged by proceedings under the in- 
 solvent Act of that State. Palmer v. Goodwin, xxxii. 535. 
 
 54. The violation of a contract by a party to it, which will discharge 
 another party, must consist of some omission of an act required, or commis- 
 sion of one forbidden, by it and essential to the continued performance of the 
 contract. N. E. Mut. Fire Ins. Go. v. Butler, xxxiv. 451. 
 
 55. But a declaration that a party wUl not do a future act, which it has not 
 and may not become his duty to perform ; or a mere denial, that upon a future 
 contingency, the other party shall not have any benefit from the contract, is 
 not such a violation of it as wiU destroy its efficacy, without the assent of 
 the other. N. E. Mut. Fire Ins. Co. v. Butler, xxxiv. 451. 
 
 56. There can be no recovery under a contract for labor, when not rendered 
 in conformity to it, unless there has been some acceptance of it, or unless an 
 exact performance has been waived, or unless the non-conformity was occa- 
 sioned by the contractee. Andrews v. Portland, xxxt. 475. 
 
CONTRACT. Ill 
 
 57. A payment in part of the contract price for having done a job of work, 
 is not a waiver of an exact performance of the contract, if, when making such 
 payment, the party did not know that there was an insufficiency m the work. 
 Andrews v. Portland, xxxv. 47 5 1 
 
 58. Upon the erection of a building under a special contract, the contractor, 
 though he may have departed from the contract as to the size of the building 
 and quality of the work, yet if the building have been accepted, is entitled to 
 recover for the labor and materials at the contract price, deducting so much 
 as they are worth less on account of the departures. White v. Oliver, 
 XXXVI. 92. 
 
 59. A waiver of the conditions, in a poor debtor's bond, by the obligee, 
 before the time appointed for a disclosure, is effectual without a consideration. 
 Burrill V. Saunders, xxxvi. 409. 
 
 60. By § 20, of c. 66, of R. S. of 1841, any person selling and delivering 
 any boards, plank, timber or slitwork, before they are surveyed, shall forfeit 
 two dollars per thousand. Yet, where the defendant contracted with the 
 plaintiff for a quantity of joists, and received them without objection at his 
 own survey, he is bound to pay the price agreed upon, although they were not 
 surveyed by any sworn surveyor. Abbott v. Ooodwin, xxxvii. 203. 
 
 VI. PERFORMANCE AND BREACH. 
 
 (a) Wh.1T will excuse PERrORMANCE. 
 
 (b) What will ooxstitute a pebeokmancb oe breach op a contract. 
 
 (a) What will excuse performance. 
 
 61. In an action by a female for a breach of promise of marriage, the fact 
 that she had committed fornication with other men, is no defence, if, at the 
 time of making the contract, the defendant had knowledge of the misconduct. 
 Snowman v. Wardwell, xxxil. 275. 
 
 62. Where, from the prevalence of a fatal disease, in the vicinity of the 
 place where one had contracted to labor for a specified time, the danger was 
 such as to render it unsafe and unreasonable for men of ordinary care and 
 common prudence to remain there, it is sufficient cause for non-fulfilling the 
 contract. Lakeman v. Pollard, xiiii. 463. 
 
 63. If a party was prevented by sickness, or similar inability, to perform a 
 contract, he may recover on a quantum meruit for what he did. Lakeman v. 
 Pollard, xiiii. 463. 
 
 See Action, 26. 
 Lease, 8. 
 
 (b) What will constitute a performance or breach of a contract. 
 
 64. Acts, intended for a performance, if they involve a violation of law, 
 are void. Jones v. Knowles, xxx. 402. 
 
 65. Hence to discharge a note for merchantable boards and clapboards, the 
 articles set out and tendered must be of such quality and condition, as, under 
 the statute, might lawfully be " offered" or " exposed for sale," or " delivered 
 on sale." Jones v. Knoioles, xxx. 402. 
 
 66. Plaintiff held a lien contract for the delivery of lumber, which contract 
 
112 CONTEACT. 
 
 lie assigned to A., to secure him for signing an accommodation note of 
 which the plaintiff negotiated and sold. The assignment authorized A. to 
 use the contract for making the money to pay the note, if he, the plaintiff, 
 should not supply the funds. Afterwards, the defendant purchased the plain- 
 tiff's remaining rights in the contract, subject to that lien ; and indorsed upon 
 the contract, an agreement, that from the proceeds of the lumber, then in 
 A.'s hands, the amount of the note should be deducted, for its payment ; and 
 for that purpose the defendant supplied some funds to A. which A. paid to the 
 holder. A. afterwards failed ; and the defendant paid to his assignees the 
 balance of the note, but they did not appropriate it to the payment of the note ; 
 and the plaintiff was obliged, as indorser, to pay that balance, for which this 
 suit is brought: — Held, that the defendant, by furnishing the funds to A.'s 
 assignees, had fulfilled his contract, and was not bound to see to the appro- 
 priation of the money. Jenness v. True, xxx. 438. 
 
 67. The treasurer of a corporation, having obtained permission to borrow 
 the funds in his hands, upon giving his note with a mortgage, is not exoner- 
 ated from liability as treasurer for the amount by the giving of his note with- 
 out the mortgage. Bluehill Acad. v. Ellis, xxxii. 260. 
 
 68. In a contract dated November 25, 1848, conditioned to pay a sum of 
 money to the plaintiff, if, at the expiration of one year from the date of a 
 deed from defendants to plaintiff, dated Nov. 6, but aclmoiuledged Nov. 25, 
 1848, the plaintiff should prefer to re-convey and shall offer to do so, a tender 
 of a deed to one of the defendants, on the 26th day of Nov. 1849, is a full 
 and seasonable performance. Oatman v. Walker, xxxiii. 67. 
 
 , 69. A joint covenant by two or more persons, that they will not do a 
 specified act, which it was lawful for either of them to do alone, is broken 
 whenever the act is done by either of them. Wing v. Chase, xxxt. 260. 
 
 70. An obligation to draw logs, into a stream, is complied with, by drawing 
 into the stream, without regard to the question whether they could not be run, 
 as the stream then was, the obligor not being required to inform himself from 
 what points in the stream timber could not be run. Palmer v. Fogg, xxxv. 
 368. 
 
 71. A dentist is required to use a reasonable degree of care and skUl in the 
 manufacture and fitting of artificial teeth. The exercise of the highest per- 
 fection to which the art, at the time, had advanced, is not implied in his pro- 
 fessional contract. Simonds v. Henry, xxxix. 155. 
 
 72. The defendant agreed to purchase lumber at a certain price per M., and 
 pay the freight ; when it was delivered, he refused to pay the freight, and 
 the plaintiffs told him, that if he took it, he should pay $40, per M., unless 
 he paid the freight: — Held, that the defendant repudiated the contract, and, 
 by keeping the lumber, was chargeable at the price fixed. Patten v. Hood, 
 XL. 457. 
 
 Vn. CONSTETTCTION. 
 
 (a) Dependent and independent stipulations. 
 
 (b) Particular agreements. 
 
 (c) In general. 
 
 (a) Dependent and independent stipulations. 
 
 73. An agreement to give up a demand against a corporate company, in 
 case the property of the company "is redeemed of the mortgagee, the refusal 
 
CONTRACT. 113 
 
 of which is given till the first of January next," is no bar to the demand, if 
 the property be not redeemed until after said day. Howard, J., dissenting. 
 Patterson v. A. W. P. Co., xxx. 91. 
 
 74. One who furnishes mourning apparel, believing the estate of the de- 
 ceased to be liable for it, and expressly stipulating that he would resort only 
 to the estate for his pay, cannot maintain an action therefor against any of the 
 family upon an implied promise. Jenhs v. Matthews, xxxi. 318. 
 
 75. In a conditional agreement, if there be a failure to perform by one of 
 the parties, the other may retract. And such condition m.ay be implied from 
 the nature of the transaction. Dodge v. Greeley, xxxi. 343. 
 
 76. Thus, a writ from the D. C. having been issued on a note of more than 
 twenty dollars, the plaintiff received, and indorsed, a sum which would reduce 
 the debt to less than twenty dollars, upon a condition that the balance should 
 be paid before the return day of the writ, but such balance was not paid : — 
 Held, the plaintiff might lawfully erase the indorsement. Dodge v. Greeley, 
 XXXI. 343. 
 
 77. In a, contract of service, at stipulated wages, for a specified time, " if 
 the parties can agree," either party may terminate it at pleasure, and without 
 showing any reasonable cause. Durgin v. Baker, xxxii. 273. 
 
 78. A written agreement, made by the payee when taking a promissory 
 note, that the amount of an account previously due from him to the maker, 
 " shall go to reduce the note," is executory, and does not convert the account 
 into a payment upon the note. And, if, upon the bankruptcy of the maker, 
 such account be sold by his assignee and paid to the purchaser by the payee, 
 the agreement will not preclude the payee from recovering the whole amount 
 of the note against the maker. Merrill v. Mowry, xxxiil. 455. 
 
 79. There are cases in which the time agreed upon for the payment of 
 money, is not of the essence of the contract, and, in such cases, the party 
 aggrieved may obtain redress by process in equity. Hill v. Fisher, xxxiv. 
 143. 
 
 80. Where the plaintiff stipulated in ^vriting, that he would discharge the 
 debt against the defendant " upon payment of fifty per cent, of its amount, 
 in four quarter-yearly payments, satisfactory security to be given, the first of 
 said payments to be made May 1, 1850 :" — Held, — 
 
 1st. That no time being stipulated within which to furnish such security, it 
 is to be done in a reasonable time : — 
 
 2d. That a tender of such security, though seasonable, is not sufficient : 
 
 3d. But that a neglect to pay the installment at the pay-day absolves the 
 creditor from his promise. Little v. Holhs, xxxiv. 357. 
 _ 81. A policy, issued by a mutual insurance company, and a premium note, 
 given at the same time for the payment of assessments, are independent con- 
 tracts. N. E. Mut. Fire Ins. Go. v. Butler, xxxiv. 451. 
 
 82. When mutual contracts are independent, the neglect of one party to 
 perform wiU not absolve the other. A contract "made by an insurance com- 
 pany with one of its members, is equally binding as if made with a stranger 
 N. E. Mut. Fire Ins. Go. v. Butler, xxxiv. 451. 
 
 83. Bonds given between the parties, both being a part of the same trans- 
 action, the one to sell and the other to purchase land at a stipulated price are 
 not dependent, if they fix the time and place at which the purchaser is to 
 make the payment. Augusta Bank y. Hamblet,-s.s:x.y. '^n. Allard y Bel- 
 fast, XL. 369. 
 
 15 
 
114 CONTRACT. 
 
 84. The plaintiff gave defendants a bond, in which was recited a contract, 
 wherein plaintiff agreed to keep amended and repaired, agreeably to c. 25, 
 K. S. of 1841, certain roads, &c., as laid out on a plan in the city of Belfast, 
 for the term of four years, together with all new highways which, within the 
 time, might be built by defendants, at and for the sum of $2250, per year, 
 payably in equal quarterly payments ; and that if the plaintiff should perform 
 said contract according to the statute, for the time specified, and to the ac- 
 ceptance of the road commissioners for the time being, and should save the 
 defendants harmless from all claims for damages and costs arising from any 
 obstruction or want of repair of any of the roads or bridges therein, then the 
 bond to be void ; otherwise, to remain in full force. The bond further provided, 
 that if the plaintiff should, at any time, faU to perform his contract to the 
 satisfaction, approval and acceptance of the commissioners, it should be in 
 their power and at their option to put an end to said contract by giving plain- 
 tiff written notice of their decision, and allowing him pro rata pay, as above, 
 to the time of said notice, and saving to defendants all rights and remedies 
 by virtue of the condition of the bond : — 
 
 The commissioners would not approve of the plaintiff's alleged performance 
 of his contract for one year of its continuance, and defendants refused to pay 
 him for that time. In an action to recover for such quarterly payments, and 
 for extra repairs on new roads, not properly completed : — Held, — 
 
 1st. That the mutual stipulations in this contract were independent: — 
 
 2d. That for any failure of plaintiff to comply with his contract, the defend- 
 ants' remedy was upon his bond : — and, — 
 
 3d, That the plaintiff was entitled to no extra allowance for new roads not 
 properly constructed, if they had been accepted by the selectmen. Allard 
 V. Belfast, XL. 369. 
 
 85. A. contracted to sell B. all the logs cut and hauled, during a lumbering 
 season, into a certain stream, by A.'s agents, at a stipulated price per M., 
 based upon the scale of G., whose certificate of quantity was to be conclusive ; 
 with a further provision, that B. was to pay A. fifty cents per M. for driving 
 the logs to a point named: — Held, that A. sold the logs when they were 
 landed ; and the agreement to drive was an independent branch of the con- 
 tract ; and that A. could not recover for, without proof of, the driving ; but 
 that he could recover for the value of the logs if not driven to the point 
 named. — Held, also, that G.'s s'^ale bill, annexed to his deposition and verified 
 by oath, was evidence of the quantity of lumber. Haynes v. Hayward, xii. 
 488. 
 
 (b) Particular agreements. 
 
 '86. Where the plaintiff, "being about to set up a steam engine and plan- 
 ing machine, to be connected therewith, agreed with the defendant, being a 
 house-carpenter, to take charge of and oversee the work, which was making 
 drums, machinery and other geering necessary to connect the same, and to re- 
 ceive one dollar and fifty cents per day for his services ;" and where " it was 
 proved, that he so worked there, overseeing the work and directing, untU he 
 pronounced the machinery to be in running order, and then left : — Held, that 
 the defendant was not thereby bound, by a special agreement, to do the work 
 in any manner ; and that he was entitled to be paid for his own labor. Haskell 
 V. Sawyer, xxvii. 234. 
 
 87. Where a conveyance of land is made, by an absolute deed, and the 
 grantee gives back to the grantor a written contract, promising to sell the 
 
CONTEACT. 115 
 
 land at a certain time, and pay two notes with the proceeds, and pay the bal- 
 ance to the gx'antor ; such grantee holds the land in trust, and is hound to sell 
 and appropriate as stated in his contract. Pratt T. Thornton, xxvili. 355. 
 
 88. To ascertain the true construction of a written contract, the situation 
 of the parties, the acts to be performed under it, and the time, place and man- 
 ner of performance, may be considered. The intention of the parties is to 
 be ascertained by an examination of the instrument, and of its effect upon 
 any proposed construction ; and such a construction should be adopted as will 
 carry that intention into effect, although a single clause, alone considered, 
 would lead to a different construction. Merrill v. Oori, xxix. 346. 
 
 89. Thus, where the plaintiff agreed to procure for defendant a ship frame, 
 " the timber to be of good quality and hewn to the moulds in a workmanlike 
 manner," and to the acceptance of a master builder appointed by the defend- 
 ants, and at the expense of the plaintiff, the defendants paying $16 per ton, 
 of 40 feet measured, to be surveyed by a sworn or competent surveyor; and 
 the timber was accepted by the master builder, but a portion of it was con- 
 demned as refusfe by the surveyor at the place of delivery : — Held, that if the 
 master builder decided honestly upon the quality of the timber, his decision 
 would be conclusive. Merrill v. Oore, xxix. 346. 
 
 90. A co-partnership was dissolved, with an agreement, that one of the 
 members should assume and pay the company debts. A creditor, on being 
 informed of the arrangement, by one of the firm, replied, that he was satis- 
 fied with it : — Held, that the reply did not discharge the other member of the 
 firm. Chase v. Vaughan, xxx. 412. 
 
 91. Where one owed the plaintiff, upon a ^vritten contract, and a guaranty 
 that he should perform was indorsed on it by the defendant, the law pre- 
 sumes the plaintiff to have been the party to whom the guaranty was made, 
 though not named in it. Jenness v. True, xxx. 438. 
 
 92. The plaintiffs contracted to build certain sections of defendants' rail- 
 road, at agreed prices. While the work was progressing, defendants desired 
 a suspension, with a view to some change in location. Thereupon, the con- 
 tract was modified by the parties. For an agreed compensation, the work 
 was to cease, till the further order of the defendants ; and, if the work should 
 be resumed within two years, defendants were to pay plaintiffs $750 ; if re- 
 sumed within that time, the former contract was to apply to a residue part 
 only of said sections ; and, upon such resumption, the plaintiffs, upon notice, 
 were to proceed with the work upon said residue sections, in the manner and 
 at rates of price originally agreed. In the modified contract, a quantity of 
 stones for the road, which plaintiffs had procured, were purchased by defend- 
 ants, upon a stipulation, that if such a resumption should take place, the 
 stones should be re-purchased by plaintiffs. 
 
 The location of some sections having been altered, defendants, within the 
 two years, recommenced operating upon some of its unchanged sections, no 
 notice of their intention having been given to the plaintiffs, but employed an- 
 other company to do their work : — Held, that, as the work was resumed with- 
 in the two years, plaintiffs could not recover the $750 ; but that they were 
 entitled to do the work when resumed, and to recover damages for not being 
 called upon and employed to do it. Fowler v. K. & P. R. R. Co., xxxi. 
 197. 
 
 93. A transfer of corporation stock, made to fulfil a contract, is not inef- 
 fectual on account of its having been made two days earlier than the stipulat- 
 ed day. Dodge v. Barnes, xxxi. 290. 
 
116 CONTRACT. 
 
 94. Defendant conveyed a dwellinghouse, which was partly finished, and 
 gave an obligation to finish it. There was an erection, one and one-half sto- 
 ry high, with rooms for the family. In the rear, and annexed to it, was an 
 erection, one story high, designed for a kitchen. Annexed to that was an- 
 other unfinished erection, designed for a wash room and other appendages : — 
 Held, that this last erection was a part of the dwellinghouse, and that the 
 obligation required the defendant to finish it for the uses originally designed, 
 and in an appropriate workmanship. Ebvey v. Luce, xxxi. 346. 
 
 95. Where, by written contract, the defendants were to pay, in addition to 
 a certain amount for every M. feet of their timber " run through the plaintiff's 
 cut," "one-half of all expenses incurred by said" plaintiff "in bringing up 
 to said cut, from B., about fifty men to protect and guard said cut, and all 
 expenses in connection therewith," the wages and expenses of the men while 
 returning, are within the contract. Dioinel v. Barnard, xxxil. 116. 
 
 96. If a grantor, after deeding his land, make a bill of sale of certain 
 trees standing on the land to a third person, in pursuance of -a verbal contract 
 entered into before the deed, the vendee of the trees take's nothing by his 
 purchase, although the grantee of the land knew of such conti-act before he 
 took his deed. Brown v. Dodge, xxxri. 167. 
 
 97. B. verbally agreed to sell certain trees on his land to the defendant. 
 C, knowing of that agreement, purchased the land of B. by deed. B. then 
 gave defendant a bill of sale of the trees, pursuant to said agreement: — 
 Held, that the agreement was verbal, unexecuted and without consideration. 
 Brown v. Dodge, xxxii. 167. 
 
 98. Where a party has contracted with another to do a particular work, 
 either at its cost or at a fixed price, a sub-contractor cannot resort to the 
 principal for his compensation, but must look to his immediate employer. 
 Cleaves v. Stockwell, xxxiii. 341. 
 
 99. Upon a verbal agreement between A., B. and C, that a note due from 
 B. to A. shall be paid by C. at a future day, the promise of C. to pay accord- 
 ingly, is but executory, and does not operate as payment. Weelcs v. Elliott, 
 XXXIII. 488. 
 
 100. Upon such an agreement, if the promise of C. be, that he will make 
 the payment in services, (it being in solido,) it cannot be claimed, as against 
 the holder, that any part of the note is paid by the performance of only a 
 part of the services. WeeJcs v. Elliott, xxxiii. 488. 
 
 101. Where one has contracted to labor in the service of another during a 
 given time, at a specified rate of wages, if he be discharged by his employer, 
 before the expiration of the time, without justifiable cause, he is entitled to 
 recover damages. Miller v. Goddard, xxxiv. 102. 
 
 102. But if he voluntarily quits the service before the expiration of the 
 time, without justifiable cause, he can recover nothing for his previous labor. 
 Miller V. Goddard, xxxiv. 102. 
 
 103. G. contracted to drive the defendants' logs at a fixed price per M. feet. 
 The plaintiff, however, was compelled to drive a large part of them with his 
 own, in consequence of an intermixture with his ; and, after the driving, he 
 stipulated with the defendants, that they should not be required to pay him, for 
 driving, more than $200 in addition to the price which G. was to have had : 
 Meld, that this stipulation did not bind the plaintiff to perform all the duties 
 in driving, which G. had^agreed to perform. Dow v. Huchins, xxxiT. 110. 
 
 104. One, contracting to pay money, upon receiving a payment to himself 
 
CONTRACT. 117 
 
 from a third person, does not defeat or diminish his liahility by a surrender of 
 his authority to receive such payment to himself. Bead v. Davis, xxxt. 379. 
 
 105. His liability, however, is at an end, if, by means of the insolvency of 
 such third person, or for any other cause, the contractee could not be damni- 
 fied by the surrender. Bead v. Davis, xxxY. 379. 
 
 106. Where one person engages to support another without designating any 
 place where such support should be furnished, the election of the place is with 
 the person to be supported. Norton v. Weih, xxxvi. 270. 
 
 107. But after this election is once made, he cannot revoke or change it. 
 Norton V. Webh, xxxTi. 270. 
 
 108. A contract, signed by a party upon receiving the possession of person- 
 al property, and containing his promise to pay for the same ; and also an 
 agreement that the property shall remain the property of the other party till 
 the payment should be made, is not a bailment, but a conditional sale. Bryant 
 V. Crosby, xxxvi. 562. 
 
 109. If such contract, though not signed by the vendor, describe the pro- 
 perty as "in good order and condition," such description is equivalent to a 
 representation ; and if he knew it to be untrue, would vacate the contract, 
 but not otherwise. Bryant v. Crosly, xxxvi. 562. 
 
 110. Where a written agreement is entered into respecting a particular 
 transaction, the parties to it are regarded as intending to secure to each other 
 their entire rights. Jeffrey v. Grant', xxxyii. 236. 
 
 111. Thus, where a fisherman agreed in writing, that, for his services for 
 the season, he should have his share of one half the fish, he is not entitled to 
 any portion of the bounty. Jeffrey v. Grant, xxxyii. 236. 
 
 112. The statute of the U. S. allowing fishermen a share of the bounty, has 
 no operation, when an agreement between them and the owners stipulates for 
 a compensation without reference to it. Jeffrey v. Grant, xxxyii. 236. 
 
 113. The fact that one contract is recited as the occasion for making another 
 to enable a party to perform it, does not make a party to the latter a party to 
 the former. He could not become so without the consent of all the parties to 
 it. Bridges v. Stickney, xxxyiii. 361. 
 
 114. Nor can any such recital make him a party to it in any sense, or to 
 any person further than he, by his own contract, engages to perform, or to 
 aid another in the performance of the prior contract. Bridges v. Stickney, 
 XXXYIII. 361. 
 
 115. One who takes an assignment of a contract between other parties as 
 security, can only be held responsible for its loss, by reason of some neglect 
 of duty or misconduct respecting it. Bridges v. Stickney, xxxyiii. 361. 
 
 116. Where, in ' consideration of a sum advanced to defendant, he agreed 
 to go^ to California, and give the plaintiif one half of the "proceeds of his 
 labor" there, for one year, no deductions are to be made fi:om such proceeds, 
 by reason of expenses paid for sickness during the year. Staples v. Wheeler 
 xxxyiii. 372, ' 
 
 117. Although the name of one of the parties is omitted in that part of 
 the contract describing the persons composing the party of the first part ; yet 
 if it appears that the one so omitted made a part of the advancement' and 
 signed the contract before it was signed by the other party, he became a par- 
 ty to it, de facto and de jure. Staples v. Wheeler, xxxyiii. 372. 
 
 118. Where the plaintifi' contracted to labor for another for a stipulated 
 
118 CONTRACT. 
 
 time and at stipulated wages, and, before his time expired, was rightfully dis- 
 charged on account of his bad conduct, he is entitled to recover the value of 
 his services, not exceeding the contract price. Lawrence v. Oullifer, xxxviii. 
 532. 
 
 119. And in such case, he will not be liable for any damages the other 
 party may suffer, unless the laborer has intentionally and wilfully conducted in 
 such a manner as to render it necessary that he should be discharged. Law- 
 rence V. Gullifer, xxxviii. 532. 
 
 120. Where a railroad company agreed to pay a contractor 90 per cent, 
 monthly, of the estimated amount of work done and materials procured in the 
 construction of their road, under the report of their engineer, and another 
 clause in the contract authorized the engineer to declare the contract abandon- 
 ed, any sum due the contractor to be forfeited to the company, whenever he 
 should find that the covenants of the contractor were not performed: — Held, 
 that where the engineer had put an end to such contract, it did not operate to 
 discharge the company from the payment of the 90 per cent, found to be due 
 from them, prior to such determination. Richer v. Fairlanhs, XL. 43. 
 
 121. A distinction between "masts" and "logs" is recognized by the laws 
 of this State ; but under some circumstances the latter term may include the 
 former. Haynes v. Mayward, XL. 145. 
 
 122. Where a contract in writing is made to sell certain " logs," and the 
 scale of a designated surveyor is agreed upon as the basis of the settlement 
 between the parties, the " logs" described in the scale-bill are the only arti- 
 cles sold, notwithstanding the surveyor enumerates a "mast" as scaled in the 
 same bill. Haynes v. Hayward, XL. 145. 
 
 123. A. purchased a lot of demands of B., and gave his notes therefor, 
 with an agreement, on his part, to use all proper exertions to collect them 
 without cost to B. ; A. being at liberty to return the demands, with an account 
 at the end of two years to B., who was to repay to A. the balance of purchase 
 money not collected: — Held, that the recovery of such balance by A. did 
 not depend upon his using proper exertions in collecting the demands ; and 
 that in such a transaction, there was a perpetual trust reposed in A., which 
 could not be executed after his death by his representative. Otis v. Adams, 
 XLi. 258. 
 
 124. A. contracted with B., to deliver him, at a time and place specified, 
 certain mill machinery, a part of which is iron castings, and which, it was 
 agreed by the parties, should be made by D. : — Held, that A., having con- 
 tracted to deliver them, would be responsible for the non-delivery of them, 
 although prevented from so doing by D's failure to have them ready. Free- 
 man v. Morey, xli. 588. 
 
 125. A. offered to sell his interest in a vessel to B., for a given price. B. 
 accepted the proposition, took possession of the vessel, loaded and sent her 
 on a voyage. Two days out she was lost. B. had received no bill of sale of 
 her, and the terms of payment had not been definitely agreed upon: — Held, 
 that A. might recover the agreed price. Appleton, J., dissenting. Bice v. 
 McLarren, xlii. 157. 
 
 126. Where the price of land in question was to be determined by arbitra- 
 tors, and the plaintiffs agreed to release their claim to the same, and the de- 
 fendant was to pay therefor the sum fixed as the value of the land, the release 
 to the defendant, and the payment therefor, are to be concurrent acts. Port- 
 land V. Brown, xliii. 223. 
 
CONTRACT. 119 
 
 127. To entitle the plaintiffs to recover in such case, they must aver and 
 prove an offer to release, upon payment by the defendant. Portland v. Brown, 
 xLiii. 223. 
 
 (c) In general. 
 
 128. Where A., an inhabitant of this State, performed labor in Neve 
 Brunswick, for B., who was an inhabitant of that Province, and C, who was 
 an inhabitant of that Province also, received means from B. for the purpose 
 of paying the claims of A. and others ; his undertaking is to be performed in 
 that Province. Very v. McEenry, xxix. 206. 
 
 129. Where contracts are made and to be performed in a foreign country, 
 their legal effect must be determined according to the laws of that country. 
 Maguire v. Pingree, xxx. 508. 
 
 130. If one part of a commercial contract, upon a literal construction, be 
 found at variance with another part, the part which contributes more essen- 
 tially to the contract and becomes the more material, will be entitled to more 
 consideration than the part which is less so. Smith v. Davenport, xxxiv. 
 520. 
 
 131. An authority, given by the vote of a corporation to sell and convey 
 its real estate, may be reasonably construed to include a right to make a bind- 
 ing contract to convey at a future day. Augusta Bank v. Hamhlet, xxxv. 
 491. 
 
 132. After an award, that one of the parties shall convey to the other real 
 estate, and judgment be rendered by an acceptance of such an award, both 
 parties continue to claim the land, whereupon the land was sold, and its avaUs 
 lodged with a depositary, and the parties agreed, in writing, that the title 
 should be litigated in an assumpsit suit between themselves ; the defendant 
 consenting to have the money considered as if in his hands : — Held, that the 
 agreement did not preclude the defendant from relying upon the former judg- 
 ment : — and that a decision, giving effect to that judgment, as a bar to tie 
 suit, is a decision upon the " merits" of the case. Buck v. Spofford, xxxv. 
 526. 
 
 133. A written contract is to be construed, and the meaning of the parties 
 ascertained, from an examination of all its parts. If some part appear at 
 variance with another, it must receive such a construction that the whole may 
 operate harmoniously together. Metcalf v. Taylor, xxxvi. 28. Chapman 
 V. Seccomb, xxxvi. 102. Bicker v. Fairbanks, XL. 43. Portland v. Brown, 
 XLIII. 223. 
 
 134. Where the parties to a suit pending in court, agree in writing to refer 
 it, with stipulations that it shall be withdrawn, each to pay his own cost ; if 
 one of the referees declines to act, the agreement becomes inoperative, and 
 the action may stand for trial. Chapman v. Seccomb, xxxvi. 102. 
 
 135. A creditor brought two separate suits against different persons, in one 
 of virhich he summoned trustees. He then proposed in writing to another 
 creditor of the same defendants, that he would discharge his said claims, upon 
 receiving, inter alia, " an obligation from the adverse parties to forbear any 
 suit or trouble to him on account of his proceedings against them :" .^ Held, 
 that an instrument, signed by the defendant in one of said suits, containing, 
 first,^ a formal receipt in full of all demands, and secondly, an agreement, that 
 " neither party" should be entered in a suit against the other defendant and 
 
120 CONTRIBUTION. 
 
 trustees, does not constitute the obligation contemplated in the plaintiffs' 
 written proposal. Dennison v. Benner, xxxvi. 227. 
 
 136. "Where the contents of a written contract, which is lost, is proved by 
 parol, without any copy, its construction must be determined by the jury. 
 Moore v. Holland, xxxix. 307. 
 
 137. The difficulty of ascertaining the construction of a contract is no 
 reason for making it nugatory. Such a consequence is to be avoided if 
 possible. Bice v. McLarren, xlii. 157. 
 
 138. No word in a contract is to be treated as a redundancy, if any mean- 
 ing, reasonable and consistent with other parts, can be given it. Heywood 
 V. Heywood, xiii. 229. 
 
 139. When the sum in dollars and cents is expressed in a contract, to be 
 paid by one to the other, it is not to be rejected for a more uncertain standard. 
 Heywood v. Heywood, ■sjai. 229. 
 
 140. A. agreed to pay B. forty dollars a year, rent, for a farm, the payment 
 to be made in specific articles, at prices and in quantities specified, with the 
 balance in cash, or country produce at cash price : — Held, that if A. failed 
 to deliver them as agreed, B. cannot recover them, but must take the forty 
 dollars. Rice, J., dissenting. Heywood v. Heywood, xlii. 229. 
 
 141. Where no time of payment is stated in a (Contract, it must be paid 
 within a reasonable time ; but money payable in a reasonable time cannot be 
 divided, at the election of the party paying, so as to make it payable at differ- 
 ent times and in different sums. O'Donnell v. Leeman, XLiii. 158. 
 
 See Assignment, 34, 35. 
 ' Payment, 24. 
 
 CONTRIBUTION. 
 
 1 . One joint maker of a promissory note can maintain no action for con- 
 tribution, unless he has paid upon the note more than the defendant has ; 
 even though there are other joint makers, who are insolvent. Powers v. 
 Gowen, xxxii. 381. 
 
 2. A. and B. gave a joint and several note, which A. paid at maturity, B. 
 having deceased: — Held, that the note, having been paid by A., and being 
 in his possession, was evidence of his claim against the estate of his co- 
 promisor for contribution. Hardy v. Colby, xlii. 381. 
 
 See Action, 46. 
 
 CONVERSION. 
 See Tkotek. 
 
COEPOBATION. 121 
 
 CONVEYANCE. 
 See Deed. 
 
 CO-PARTNERSHIP. 
 See Paktnekship. 
 
 CORPORATION. 
 
 I. HOW CREATED, ORGANIZED AND DISSOLVED. 
 
 II. TRANSFER OF SHARES. 
 
 HI. CORPORATE POWERS, RIGHTS AND LIABILITIES. 
 
 rV. RIGHTS AND LIABILITIES OF OFFICERS AND MEMBERS. 
 
 V. PLEADINGS AND EVIDENCE. 
 
 I. HOW CREATED, ORGANIZED AND DISSOLVED. 
 
 1. It is not necessary that the records of a corporation should exhibit a legal 
 organization and acceptance of the Act of incorporation. The existence of 
 the corporation may be inferred from the exercise of its corporate powers. So. 
 B. M. Dam Co. v. Oray, xxx. 547. Sampson v. B. S. M. Co., xxxvi. 78. 
 
 2. The dissolution of a corporation, by an Act of the Legislature, deprives 
 it of its corporate existence. Merrill v. Suffolk Bank, xxxi. 57. 
 
 3. A corporation is not dissolved by ceasing to exercise its powers. Nor 
 because its stockholders and directors may consider it to be defunct. Rollins 
 V. Clay, XXXIII. 132. 
 
 4. Private corporations exist by legislative grants, conferring rights and 
 powers for special purposes. Yarmouth v. North Yarmouth, xxxiv. 411. 
 
 5. A company, incorporated as trustees of a fund, with the power and duty 
 of investing it and appropriating its income to the public schools of a to^vn, 
 is a private and not a public corporation. Yarmouth v. North Yarmouth, 
 XXXIV. 411. 
 
 6. "When, by a by-law, the officers of a corporation are to hold office for a 
 year, and until others are chosen in their room, it seems unnecessary to insert 
 in the warrant calling the annual meeting, " that officers are to be chosen ;" 
 although another by-law prescribes that such warrant shall " specify the busi- 
 ness to be transacted." Sampson v. B. S. M. Co., xxxvi. 78. 
 
 7. Where the prescribed officers are elected without such specification, and 
 the corporation recognizes the existence and authority of such officers, by its 
 acts, the'election will be deemed valid. Sampson v. B. S. M. Co., xxxvi. 78. 
 
 8. No legal organization by the corporators, under a charter granted by this 
 State, can be effected by their action in another State. Freeman v. MacMas 
 W. P. & Mill Go., XXXVIII. 343. 
 
 16 
 
122 CORPORATION. 
 
 II. TRANSFER OF SHARES. 
 
 9. A transfer of corporation stock, made to fulfil a contract, is not ineffec- 
 tual on account of its being made two days earlier than the stipulated day. 
 Dodge v. Barnes, xxxr. 290. 
 
 10. Where the by-laws of a corporation required the transfer of stock to 
 be made by the treasurer, and not by the owner, the treasurer thereby became 
 the agent of the owner for that purpose. Dodge v. Barnes, xxxi. 290. ' 
 
 See CoKPOKATioN, 64. 
 
 III. CORPORATE POWERS, RIGHTS AND LIABILITIES. 
 
 11. All votes and proceedings of persons, professing to act in the capacity 
 of corporators, when assembled beyond the bounds of the State granting the 
 charter of the corporation, are wholly void. Miller v. Ewer, xxvii. 509. 
 
 12. A corporation, duly organized and acting within the limits of the State 
 granting the charter, by a vote transmitted elsewhere, or by an agent duly 
 constituted, may act and contract beyond the limits of the State. Miller v. 
 Ewer, xxvir. 509. 
 
 13. Where the authority given to a corporation is to boom lumber and 
 receive toll therefor, it is not entitled to demand toll for driving lumber. 
 Bangor B. Corp. v. Whiting, xxix. 123. 
 
 14. Payments to a person, acting as agent for such corporation, made partly 
 to pay for driving and partly for booming, are to be applied to each, according 
 to the intent of the parties when the payments were made. Bangor B. Corp. 
 V. Whiting, xxix. 123. 
 
 15. If the doings of an agent of a corporation are some of them within 
 and some beyond the corporate powers, the corporation may ratify his acts so 
 far as they were within its powers, but no further. Bangor B. Corp. v. 
 Whiting, xxix. 123. 
 
 16. A corporation, authorized to hold real and personal estate, each to a 
 limited amount, may lawfully make assessments upon its members to an 
 amount exceeding the personal estate it was authorized to hold. So. B. M. 
 Dam Co. V. Gray, xxx. 547. 
 
 17. Where a corporation, at its first meeting, voted the amount of each 
 share in its stock, and that one of its members should solicit subscriptions, 
 and the defendant subscribed for stock the same day, and there appeared to 
 be no other subscription paper : — Held, that there was a proper authorization 
 of the subscription. So. B. M. Dam Go. v. Gray, xxx. 547. 
 
 18. Although the share of a member may be liable to be sold by the 
 company, for the non-payment of assessments due upon it, an action may be 
 maintained where there is an express promise to pay. So. B. M. Dam Go. 
 v. Gray, xxx. 547. E. & P. B. B. Co. v. Eendall, xxxi. 470. 
 
 19. Where a charter gave authority to erect dams, sluices and looks, at 
 different places on a stream, and made provisions for compensating for land 
 taken therefor, which dams, sluices and locks they proceeded to erect, and 
 for the location of one of the dams, with its sluice and lock, they took a lease 
 of the land and occupied under it for thirty-one years ; (no compensation 
 therefor, under the provisions of the charter, having been claimed or made,) 
 it is to be considered, that the works upon the land leased, were erected in 
 virtue of the right given by the charter, and not by the lease ; and that, 
 therefore, at the end of the leasehold, they belong to the company, with a 
 right to be permanently maintained by them. Ginn v. Hancock, xxxr. 42. 
 
COBPOBATION. 123 
 
 20. The right, so acquired by the company, extends no further than to 
 maintain their works, and give them the exclusive right of so much of tlie 
 water as is necessary for the sluiceway. The residue of the water, belongs 
 in equal parts, to the riparian proprietor on each side of the stream. Oinn 
 V. Hancock, xxxi. 42. 
 
 21. Where a power has been given to corporations to collect their assess- 
 ments on the shares, by,a sale of the stock, an inference is not readily drawn, 
 that the Legislature, without any express enactment to that effect, designed 
 to create a personal liability on the share-holder. K. & P. B. M. Go. v. 
 Kendall, xxxi. 470. 
 
 22. A statute authority " to make and collect such assessments on the 
 shares," " as may be deemed expedient, in such manner as should be pre- 
 scribed in their by-laws," does not confer, nor does any statute of the State 
 confer, upon the corporation, the power to create a personal liability upon the 
 stock-holder, to pay for his shares. E. & P. B. B. Co. v. Kendall, xxxi. 
 470. 
 
 23. Where, neither by contract nor by statute enactment, there is any per- 
 sonal obligation upon a stockholder to pay for his shares, such obligation 
 cannot be created by any by-law or vote of the corporation. K. &. P. B. B. 
 Co. V. Kendall, xxxi. 470. 
 
 24. A by-law, providing that " if the shares of any such delinquent stock- 
 holder shall not sell for a sum sufficient to pay his assessments, with interest 
 and charges of sale, he shall be liable to the corporation for any deficiency," 
 will not sustain an action at law for such deficiency. K. & P. B. B. Co. v. 
 Kendall, xxxi. 470. 
 
 25. A by-law of a corporation, though made in pursuance of an express 
 power to make such laws, must be lawful and reasonable, in order to be valid. 
 If contrary to the common or statute law, it is void. K. & P. B. B. Co. v. 
 Kendall, xxxi. 470. Jay Bridge v. Woodman, xxxi. 573. Game v. Briq- 
 ham, xxxix. 35. 
 
 26. Where the amount of stock is not fixed in the charter of a corporation, 
 and the corporation has voted what the amount should be, it is not requisite 
 in order to a valid assessment upon the shares of a number, that the whole of 
 that amount should have been subscribed for, although his subscription was 
 made after the vote was passed. K. &. P. B. B. Go. v. Jarvis, xxxiv. 360. 
 
 27. The trustees of a school fund, holding the fund as a private corporation, 
 tor the use of schools, under a legislative contract, cannot be divested of it or 
 ot any part of it, by any legislative action. Yarmouth v. North Yarmouth, 
 XXXIV. 411. '■""■<'", 
 
 28 A statute, which should assume to distribute the fund between the 
 schools of a town and those of another town, would be inoperative, although 
 the latter town be created by a division of the former. Yarmouth v. North 
 Yarmouth, xxxiv. 411. 
 
 29. An authority given by the vote of a corporation, to seU and convev 
 Its real estate may be reasonably construed to include a right to make a bind- 
 mg contract at a future day. Augusta Bank v. -ffamS^ei, xxxt. 491 
 
 30. The powers of a corporation are derived from the law and its charter 
 
 v^jrsrir^?rxtii.T5r^^^ ''- -''-''- ^— • ^^^- 
 
 fer^ed ^T^^^ '^v^'' °°^^ authorized insurance against fire, a by-law, re- 
 lerred to m the policy, recognizes damages by lightning as o^e of the I'isks 
 
124 CORPORATION. 
 
 assumed, imposes no obligation upon the company to pay ior losses other than 
 by fire. Andrews v. Union M. F. Ins. Co., xxxvii. 256. 
 
 32. By c. 91, § 14, R. S., 1841, " all deeds and contracts, executed by an 
 authorized agent, for an individual or corporation, either in the name of the 
 principal, by such agent, or in the name of such agent, for the principal, shall 
 be considered the deed of such principal. Porter v. A. & K. B. B. Co., xxxvii. 
 349. 
 
 33. Where a corporation makes a contract through an agent, who puts to 
 it a seal, it becomes, by law, the deed of the corporation, though it has not 
 their common seal. Porter v. A. & K. B. B. Co., xxxvii. 349. 
 
 34. The by-laws of a corporation, not repugnant to the laws of the land, 
 are obligatory upon all its members. And it may lawfully make and utter its 
 promissory notes, in accordance with such by-laws. Gamie v. Brigham, 
 XXXIX. 35. 
 
 35. A judgment against a corporation, cannot be impeached for any de- 
 fect in the service of the original process, by any party privy to it. To such 
 it is valid until reversed. Game v. Brigham, xxxix, 35. 
 
 36. All creditors, whether so originally, or by indorsement or assignment, 
 are within the beneficial provisions of c. 76, of R. S., 1841. Game v. Brigham, 
 XXXIX. 35. 
 
 37. An agent, lawfully authorized to "purchase stock and make sales for 
 the corporation, to hire and discharge help, and manage the concerns of the 
 corporation, being subject at all times to the direction of the board of direc- 
 tors," gives sufficiently extensive power to embrace all transactions necessary 
 for the management of them in the usual manner. Whitney v. South Paris 
 M. Go., XXXIX. 316. 
 
 38. And, in his dealings with others, his powers would not be restricted 
 by his being subjected to the direction of the board of directors, unless they 
 interposed to limit them. Whitney v. South Paris M. Go., xxxix. 316. 
 
 39. An agent, with such authority, may waive demand and notice on a note 
 indorsed by such company, even after the note has been negotiated, and to 
 procure delay of payment, and, although in procuring delay, he may also act 
 as agent of the maker. Whitney v. South Paris M. Go., xxxix. 316. 
 
 40. Nor will the fact, that he agreed to pay more than the legal rate of in- 
 terest for such delay, prevent a recovery against the company, of the amount 
 legally due. Whitney v. South Paris M. Co., x:kkts.. 316. 
 
 41. Where the charter requires the capital stock to consist of not less than 
 a given number of shares, no assessments can be made upon subscriptions to 
 such stock before the required number is taken ; neither will the subscriptions 
 be binding. 0. & L. B. B. Go. v. Veazie, x^xx^isi. 571. P. & K. B. B. Go. 
 V. Dunn, xxxix. 587. Penobscot B. B. Go. v. Dummsr, xl. 172. 
 
 42. A subscription for a certain portion of stock, on condition that a pro- 
 position made by the subscriber shall be accepted, which in fact was but the 
 basis of a contract, but when drawn in form was repudiated by the subscriber 
 as variant, is invalid, though accepted by the corporation. 0. & L.B. B, 
 Go. V. Veazie, xxxix. 571. 
 
 43. The alteration of the charter, requiring a less amount of capital stock, 
 whereby the amount required is subscribed for, cannot make previous sub- 
 scribers liable as share-holders, who were not such before the alteration. 0. 
 & L. B. B. Go. V. Veazie, xxxix. 471. 
 
 44. Thus, where the defendant subscribed for 1000 shares in the plaintiff 
 
CORPORATION. 125 
 
 corporation, where the charter required 11,000 shares to be the minimum, and 
 a less number were subscribed, when the company was organized, the sub- 
 scriptions accepted and assessments made ; and thereafterwards an Act re- 
 ducing the minimum of the stock below the number subscribed, was accepted 
 by the corporation : — Meld, — 
 
 1st. That the minimum number of shares required by the charter, at the 
 time the subscription was made, was a condition precedent to be fulfilled be- 
 fore the subscriptions can be collected or assessed. 
 
 2d. That the alteration and acceptance of the charter as amended, would 
 not authorize the corporation to assess a subscription, made under the original 
 charter. 
 
 3d. Nor will the defendant be estopped to set up the original conditions of 
 his subscriptions, although he may have exhibited himself as share-holder and 
 officer of the corporation, and had contributed towards payment of the ex- 
 penses of the corporation. The requirements of the charter cannot be waived. 
 
 4th. That corporators cannot relieve the corporation from its obligation to 
 possess the capital stock required by its charter, by any acts or declarations. 
 0. S L. B. B. Go. V. Veazie, xxxix. 571. 
 
 45. Where one condition of subscription to stock was, that not more than 
 five dollars on a share should be assessed at one time, and two or more were 
 laid at the same time, but payment was not required upon but one at the same 
 time, such assessments are binding. P. & K. B. B. Go. v, Dunn, xxxix. 
 587. Fenobscot B. B. Go. v. Dumrner, XL. 172. 
 
 46. Whether directors of a corporation have power to release a subscrip- 
 tion to the capital stock, without consideration, quere ? But, if they possessed 
 that power, and the release be optional with the subscriber, he must elect 
 within a reasonable time. Pen. & Ken,. B. B. Go. v. Dunn, xxxix. 587. 
 
 47. A recognition and claim of representing such shares, long after such 
 action of the directors, may well be considered an election to retain the shares 
 subscribed for. Pen. S Ken. B. B. Co. v. Dunn, xxxix. 587. 
 
 48. Where the terms of subscription required, that seventy-five per cent, 
 of the estimated cost of any sections of the railroad should be subscribed for 
 by responsible persons, before commencing its construction, if the subscrip- 
 tion is obtained in good faith, assessments will be valid, although some of 
 the subscriptions, to make up that amount, should turn out to be worthless. 
 Penobscot B. B. Go. v. Dummer, xl. 172. 
 
 49. Where, on failiire of share-holders to pay the legal assessments upon 
 them, the statute authorized a sale of the shares at auction, under an order 
 from the directors to the treasurer, and a right to recover of the corporators 
 the balance remaining unpaid, a sale, made by the treasurer under the au. 
 thority of a committee appointed by the durectors, is illegal. The directors 
 cannot delegate their powers in such cases. Y. & G. B. B. Go. v. Bitchie 
 XL. 425. ' 
 
 50. Nor can such a sale be upheld under an order from the directors in the 
 alternative. It must be absolute. Y. & G. B. B. Go. v. Bitchie, xi. 425. 
 
 51. As a general rule, corporations are not responsible for the unautiiorizecl 
 or unlawful acts of its officers. Mitchell v. Bockland, xx,i. 363. 
 
 52. Where the charter requires notice of the time and place for opening 
 books of subscription to the capital stock to be given under the direction of 
 the persons named in its first section, a majority of the persons thus named, 
 may lawfully give such notice. Penobscot B. B. Co. v. WhUe, xli. 512, 
 
 53. The right to make assessments cannot be made to depend upon any 
 
126 COEPORATION. 
 
 actual indebtedness existing at the time, nor can it be defeated by any appa- 
 rent indebtedness incurred under an invalid contract. Penobscot B. B. Co. 
 V. White, XLi. 512. 
 
 54. In an action by a railroad corporation to recover assessments, made 
 for the general and legitimate purposes of the corporation, the plaintiffs need 
 not shove a compliance with its charter requiring that the company shall not 
 engage in, nor commence the construction of, any section or sections of the 
 road, until seventy-five per cent, of the estimated cost thereof shall have been 
 subscribed for by responsible persons. Penohscot B. B. Go. v. White, xli. 
 512. 
 
 55. A corporation, empowered to make contracts in writing, are not thereby 
 authorized to confer that power upon one of their officers to contract in their 
 behalf. Female 0. Asylum v. Johnson, xliii. 180. 
 
 56. By special Act of 1841, c. 105, the Female Orphan Asylum of Port- 
 land, by their managers, were authorized to bind to service children under 
 their control: — Held, that a contract, signed by defendant on his part, and 
 M. B. S., "in behalf of the Female Orphan Asylum of Portland," was not 
 authorized by the Act. Female 0. Asylum v. Johnson, xliii. 180. 
 
 See Contract, 8. 
 Parish. 
 Railroad. 
 
 IV. RIGHTS AND LIABILITIES OF OFFICEES AND MEMBERS. 
 
 57. All votes and proceedings of persons professing to act in the capacity 
 of corporators, when assembled beyond the limits of the State granting the 
 charter, are void. Miller v. Ewer, xxvii. 509. 
 
 58. In a suit under c. 76, of R. S. of 1841, by a creditor against a stock- 
 holder, the defendant cannot protect himself by proof that he has paid to the 
 corporation, the whole amount to which the statute made him liable, (being 
 100 per cent, upon his stock,) towards the payment of the corporation debts. 
 Fowler v. Bohinson, xxxi. 189. 
 
 59. A corporation, being indebted to the amount of seventy-five per cent, 
 of its stock, voted, that each stockholder should pay to the treasurer, that 
 proportion, in order to discharge the debts. The plaintiff and defendant were 
 both stockholders. Though many failed to make such payment, the defend- 
 ant paid to the treasurer, 100 per cent. But, as the vote contained no stipu- 
 lation that a stockholder, on making the payment, as voted, should be released 
 from the claims of creditors: — Held, that the plaintiff, being a creditor of 
 the corporation, was not barred by his concurring in the vote, from recovering 
 against the defendant. Fowler v. Bohinson, xxxi. 189. 
 
 60. A corporation cannot recover, in an action at law, for its shares or 
 assessments upon them, unless the holder has made an express agreement to 
 pay for them ; or unless, by its charter or other statute provision, a personal 
 obligation is imposed upon the holder, to make such payment. K. & P. R. B. 
 Go. V. Kendall, xxxi. 470. 
 
 61. An agreement in writing to subscribe a specified number of shares to 
 the stock of a corporation, is not an express promise to pay for them. K. & 
 P. R. B. Go. V. Kendall, xxxi. 470. 
 
 62. The directors of a bank have authority, in behalf of the corporation. 
 
COEPOEATION. 127 
 
 to release a person whom they propose to call as a witness. Lewis v. Eastern 
 Bank, xxxii. 90. 
 
 63. Directors of a corporation, unless specially empowered, have no au- 
 thority to sell any portion of its estate, essentially necessary for the transac- 
 tion of its customary business. Rollins v. Clay, xxxii. 132. 
 
 64. The by-laws of a corporation required that transfers of shares in its 
 capital stock should be "noted and subscribed in a book, kept for the ^wc- 
 ■pose:" — Held, that the sale of a stockholder's share would not exonerate him 
 from individual liability upon corporation debts, contracted prior to the time 
 of noting and subscribing the sale upon the transfer book. Fowler v. Lud- 
 wig, XXXIV. 455. 
 
 65. Under c. 76, § § 18, 19, and 20, R. S. of 1841, the obligation of a 
 stockholder to pay corporation debts, is made to depend upon the officer's cer- 
 tificate upon the execution, that he could not find corporate property. Grose 
 V. Silt, XXXVI. 22. 
 
 66. Before the existence of such execution and certificate, payments made 
 by a stockholder upon any debt of the corporation, though it might give, him 
 a claim against the corporation, will constitute no defence to a suit by a judg- 
 ment creditor, upon whose execution the prescribed certificate has been made. 
 Grose v. Hilt, xxxvi. 22. 
 
 67. The Act of 1851, c. 10, in relation to the liability of stockholders for 
 corporation debts, was merely prospective. Grose v. Hilt, xxxvi. 22. 
 
 68. Where an organization of a corporation was attempted in another State, 
 and shares under it were taken by plaintifi", which were afterwards sold by the 
 corportion for non-payment of assessments ; and subsequently an organization 
 was completed in this State, and all the prior proceedings were confirmed : — 
 Held, that if the plaintiff, by the new organization, became the lawful owner of 
 the shares, by the same act he was deprived of them, and could maintain no 
 action upon them for dividends. Freeman v. M. W. P. & M. Co., xxxviii. 
 343. 
 
 69. The individual members of railroad corporations are subjected to the 
 special liabilities imposed by c. 76, of R. S., of 1841, unless specially ex- 
 empted therefrom by their charter. Game v. Brigham, xxxix. 35. 
 
 70. In an action against a stockholder, for the neglect of a corporation to 
 pay a judgment against them, he cannot interpose the defence, that there was 
 a variance in the original suit between the proof and declaration. It is enough 
 that the record shows a good cause of action, and that no such objection was 
 made by the corporation. Came v. Brigham, xxxix. 35. Cole v. Butler, 
 XLiii. 401. 
 
 71. The stockholders of a corporation, for an unsatisfied judgment against 
 it, are liable to such judgment creditor, although he is an assignee of the debt 
 
 . against it. Came v. Brigham, xxxix. 35. 
 
 72. A subscription for a certain portion of the capital stock of a corpora- 
 tion, on condition that a proposition, made by the subscriber shall be accept- 
 ed, which was in fact but the basis of a contract, but when drawn in form 
 was repudiated by the subscriber as being variant from the proposition, is 
 invalid, although the proposition may have been accepted by the corporation. 
 0. & L. 11. R. Co. V. Veazie, xxxix. 570. 
 
 73. An agreement to take and fill a given number of shares, in an incor- 
 porated company, is equivalent to a promise to take and pay for such shares. 
 Buckfield B. R. R. Co. v. Irish, xxxix. 44. Pen. & Ken. R. R. Co. v. 
 
128 CORPORATION. 
 
 Dunn, XXXIX. 587. Pen. R. R. Co. v. Dummer, xx. 172. Y. & G. R. R. 
 
 Go. V. Pratt, XL. 447. 
 
 74. When a corporation has proceeded regularly to ascertain its corporators 
 and the owners of shares in its capital, and has entered them in its records, 
 aU parties become thereby prima facie entitled to the rights thus secured to 
 them. Pen. R. R. Co. v. Dummer, xi. 172. 
 
 75. For the official misconduct of the directors of an incorporated company, 
 and fraud in the discharge of their duties, they are responsible to the corpor- 
 ation. Smith V. Poor, XL. 415. 
 
 76. An individual corporator, who has suffered damage in a contract made 
 with an incorporated company, through the fraudulent acts and votes of its 
 directors, under color of their office, can maintain no action against them to 
 recover compensation, his remedy being against the company. Smith v. 
 Poor, XL. 415. 
 
 77. By c. 369, § 5, of special laws of 1846, delinquent subscribers or 
 stockholders in the York & Cumberland R. R. Co., were made accountable 
 for the balance, if their shares should sell for less than the assessments due 
 thereon, with the interest and cost of sale. Y. & G. R. R. Go. v. Pratt, 
 XL. 447. 
 
 78. The defendant subscribed for two shares in the stock of the plaintiff 
 corporation, on certain conditions named therein, none of which had refer- 
 ence to the number of shares to be subscribed for, and paid three assessments 
 thereon. Afterwards more assessments were made, their payment by him re- 
 fused, and the shares were sold in accordance with the charter and by-laws, 
 for a less sum than the amount assessed : — Held, that defendant was liable 
 for the balance, although the minimum number of shares had not been sub- 
 scribed. Y. & G. R. R. Go. v. Pratt, xl. 447. 
 
 79. Prior to the organization of a railroad corporation, the defendant, by 
 his subscription, agreed to become holder of twenty-five shares in the capital 
 stock, upon the condition, that not less than the least sum required by the 
 charter should be subscribed: — Held, that it was not competent for a sub- 
 scriber to show, that the shares subscribed for, and recorded in the books of 
 the corporation, were subscribed for by persons of no actual pecuniary re- 
 sponsibility, and reputed not to be responsible for the amount subscribed for 
 by them, with the qualification, however, that the defendant might introduce 
 any testimony tending to show that the subscriptions were not made and ac- 
 cepted in good faith. Penobscot R. R. Go. v. White, xli. 512. 
 
 80. From the nature of the contract of subscription, it must be within the 
 contemplation of the parties, that the share-holders, or corporators, should de- 
 termine who were apparently responsible as subscribers ; and, when they have 
 done so in good faith, the subscribers to the stock must be regarded as bound 
 by such decision. Penobscot R. R. Co. v. White, xli. 512. 
 
 81. The treasurer of a corporation, who purchases stock in its behalf, and 
 by direction of its authorized officers, does not render himself personally lia- 
 ble to pay therefor ; aliter, if he really acts for himself, or without authority 
 from the corporation, though purporting to act as its agent and in its behalf. 
 Haynes v. Hunnewell, xlii. 276. 
 
 82. The by-laws of a corporation, made in pursuance of its charter, are 
 equally binding on all the members and others acquainted with their method 
 of business, as any public law of the State. Gummings v. Webster, xliii. 
 192. 
 
CORPORATION. 129 
 
 83. A corporation creditor, who first moves in conformity to law, acquires 
 a priority of right to recover against a stockholder, under R. S. of 1841, ,c. 
 76, § § 18, 19, and 20, with which no other creditor subsequently moving can 
 interfere. Nor can the rights of the first he affected, although the second, by 
 pursuing the shorter remedy, may fail to obtain satisfaction of his judgment. 
 Cole V. Butler, xliii. 401. 
 
 84. Any payment made to a subsequently moving creditor by such stock- 
 holder must be regarded as a payment in his own wrong. Cole v. Butler, 
 xini. 401. 
 
 85. The stockholder is liable only for the amount of his stock without 
 interest thereon. Cole v. Butler, xliii. 401. 
 
 See Agency, 10, 11, 20. 
 
 COKTEACT, 10, 11. 
 
 V. PLEADINGS AND EVIDENCE. 
 
 86. It is incumbent on one claiming title under a deed from a corporation, 
 executed by one in the character of an agent, to prove that the corporation, 
 by a legal vote, had authorized such- person to make the conveyance. Miller 
 V. Ewer, xxvii. 509. 
 
 87. Where a railroad passes over parts of two counties, the corporation 
 may maintain an action in that county wherein they have an office which is 
 " made the depositary of the books and records of the company, by a vote of 
 the directors, and a place where a large share of their business is transacted ;" 
 although the company may have, at the same time, another office in the other 
 county, where the residue of their business is transacted, and in which the 
 treasurer and clerk reside. A. & K. R. R. Co. v. Stevens, xxviii. 434. 
 
 88. In a suit by a corporation, upon an account annexed for driving and 
 looming, lumber, (the charter only authorizing them to hoom lumber,) it is 
 rightfu.1 to allow the plaintifis to amend by withdrawing the charge for the 
 driving. Bangor B. Corp. v. Whiting, xxix. 123. 
 
 89. An action may be maintained, in the courts of this State, against a 
 corporation established by the Legislature of another State. R. S. of 1841, 
 c. 76, § 31. Williams v. N. E. Mut. Fire Ins. Co., :x.:xlix. 465. 
 
 90. In such action, jurisdiction is conferred upon the Courts of this State, 
 in behalf of a citizen of this State, by an attachment of defendant's property 
 under our trustee process. Williams v. N. E. Mut. Fire Ins. Co., xxix. 465. 
 
 91. Where, by the charter of a foreign insurance company, claimants were 
 to bring their suits in that State, in cases in which, after notice of loss, " the 
 directors, upon view of the same, or in such manner as they may deem proper, 
 shall ascertain and determine the amount of loss," &c. : — Held, that that 
 provision does not preclude the courts of this State from holding jurisdiction 
 of actions brought to recover for losses, in cases where no such determination 
 Vas made by the company. Williams v. N. E. Mut. Fire Ins. Co xxix 
 465. 
 
 92. The plea of general issue, to an action by a corporation, admits only 
 their power to sue and be sued. Trustees of P. F. School v. Fisher, xxx. 
 523. Freeman v. M. W. P. & M. Co., xxxviii. 343. 0. & L R R Co 
 V. Veazie, xxxix. 571. Pen. & K. R. R. Go. v. Dunn, xxxix. 587. ' 
 
 93. It is not necessary that the records of a corporation should, exhibit a 
 
 17 
 
130 CORPORATION. 
 
 legal organization and acceptance of the Act of incorporation. Tlie existence 
 of the corporation may be inferred from the exercise of its corporate powers. 
 So. Bay M. Dam Co. v. Gray, xxx. 547. Sampson v. B. S. M. Corp., 
 XXXVI. 78. 
 
 94. It is not essential to the existence of a corporation, or to its right to 
 maintain suits at law, that its clerk should have been sworn, or that he should 
 have filed in the office of the register of deeds a certificate of his appoint- 
 ment. So. Bay M. Dam Co. v. Gray, xxx. 547. Hudson v. Carman, 
 XLi. 84. 
 
 95. Where there is nothing in the laws of the State, or in the by-laws of 
 the corporation, to limit the continuance in office of its clerk, the one properly 
 chosen remains in office until another is chosen. So. Bay M. Dam Co. v. 
 Gray, xxx. 547. 
 
 96. Where, in a suit upon a contract relative to certain corporation stock, 
 the contract, offered in evidence, disagreed with the declaration as to the 
 plaintiff's christian name, and also as to the name of the corporation; but 
 the identities were apparent from the recital in the contract, and from the 
 corporation records, to which the contract referred : — Held, that the variances 
 constituted no defence. Dodge v. Barnes, xxxi. 290. 
 
 97. Upon a subscription, promising a corporation to take and pay for shares 
 in its stock, assumpsit may be maintained, although the corporation has not 
 exercised its chartered authority to seU the shares for the delinquency of pay- 
 ment. Ken. & P. R. R. Co. v. Jarvis, xxxiv. 360. 
 
 98. The right acquired by holding shares, is a sufficient consideration for a 
 promise to the corporation to take such shares and pay for them. Ken. &. 
 P. R. R. Co. V. Jarvis, xxxiv. 360. 
 
 99. The agreement to associate together under an Act to accomplish the 
 purposes designed, would seem to be a sufficient consideration to sustain a 
 suit by a corporation upon a subscription to stock. Ken. & P. R. R. Co. v. 
 Palmer, xxxiv. 366. 
 
 100. In a suit by a corporation against a subscriber to its capital stock, to 
 recover assessments, made upon the shares, it is not competent for the defend- 
 ant to show, by parol evidence, that his subscription was upon a condition, 
 not expressed in -writing. Ken. & P. R. R. Co. v. Waters, xxxiv. 369. 
 
 101. The treasurer's certificate of a payment made by a stockholder towards 
 corporation debts, is explainable by parol, especially to show the time of the 
 payment, if in that respect the certificate be silent. Grose v. Hilt, xxxvi. 22. 
 
 102. In a suit against a stockholder liable for corporation debts, the judg- 
 ment against him may include the cost of suit, in addition to the amount of 
 his stock. Grose v. Hilt, xxxvi. 22. 
 
 103. The by-laws of a corporation authorized its directors to manage all its 
 prudential concerns ; and they certified, by a document signed by them in that 
 capacity, that the plaintiff had previously advanced a specified sum for the 
 corporation, wrhioh sum, with its interest, was still due to him : — Held, that 
 upon such certificate, an action may be maintained. Sampson v. B. S. M. 
 Corp., XXXVI. 78. 
 
 104. Such certificate is to have fuU effect as the foundation of a suit, not- 
 withstanding the existence of a by-law, prescribing that the directors shall 
 hold stated meetings and keep a record of their votes and doings. Sampson 
 V. B. S. M. Corp. XXXVI. 78. 
 
 105. Assumpsit cannot be maintained upon the contract of a corporation 
 
CORPORATION. 131 
 
 made through an agent, who puts to it a seal, though it has not their common 
 seal. PoHer v. A. & K. R. R. Co., xxxvii. 349. 
 
 106 In an action against a stockholder, for the neglect of the corporation 
 to pay a judgment against them, he cannot interpose the defence that there 
 was a variance in the original suit between the proof and declaration. _ It is 
 enough that the record shows a good cause of action. Came v. Bngtiam, 
 XXXIX. 35. Cole v. Butler, xiiii. 401. 
 
 107. The return of an officer, upon an execution, is sufficient evidence that 
 he held it for the purpose of collection. Came v. Brigham, xxxix. 35. 
 
 108. When a subscription is made on condition, that a certain number of 
 shares shall be subscribed for before the corporation shall be organized, the 
 records of its proceedings showing that the required number had been taken, 
 are competent and prima facie evidence that the condition has been performed. 
 Pen. & Ken. R. R. Co. v. Dunn, xxxix. 587. Fen. R. R. Co. v. Bummer, 
 XL. 172. Pen. R. R. Co. v. White, xli. 512. 
 
 109. And where a sub'scription is based on a further condition, that the 
 company is not to enter into any contracts for the construction of itsroad, 
 until a given number of shares are taken, the books of the directors, in the 
 absence of countervailing evidence, are competent to show the fulfillment of 
 the condition, if the directors had authority to act. Pen. &. Ken. R. R. Co. 
 v. Dunn, xxxix. 587. 
 
 110. And the corporation records are competent to show its corporators, in 
 the absence of countervailing evidence. Pen. & Ken. R. R. Co. v. Dum- 
 mer, xi. 172. Pen. R. R. Co. v. White, xli. 512. 
 
 111. No other demand, for payment of assessments to maintain an action, 
 is necessary, than that prescribed in the by-laws of the corporation. Pen. & 
 Ken. R. R. Co. v. Dummer, XL. 172. 
 
 112. To maintain an action under a special statute authority, its terms 
 must have been strictly complied with. Y. & C. R. R. Co. v. Ritchie, xi. 
 425. 
 
 113. The acceptance of a charter creating a company must be proved by 
 the best evidence in the power of the party relying upon it. The records of a 
 corporation are the regular evidence of its acts. Hudson v. Carman, xli. 
 84. 
 
 114. If its records cannot be produced, an accfeptance of the charter may 
 be proved by implication 6om the acts of the company. Hudson v. Carman, 
 XLI. 84. 
 
 115. In an action to recover from an individual stockholder the amount of 
 a creditor's judgment against the corporation, the organization and existence 
 of the corporation, if denied, must be proved. The judgment obtained is 
 not conclusive evidence of these facts. Hudson v. Carman, xli. 84. 
 
 116. In an action by a railroad corporation to recover assessments, made 
 for the general and legitimate purposes of the corporation, it is not necessary 
 for the plaintiffs to show a compliance with the provision of its charter, re- 
 quiring that the company shall not engage in, nor commence, the construc- 
 tion of any section of its road, until seventy-five per cent, of the estimated 
 cost thereof shall have been subscribed for by responsible persons. Pen. 
 R. R. Co. V. White, xli. 512. 
 
 117. Prior to the organization of the corporation, the defendant, by his 
 subscription, agreed to become the holder of twenty-five shares in the capital 
 stock, upon the condition, that not less than the least sum required by the 
 
132 COSTS. 
 
 charter should be subscribed : — Held, that it was not competent for a sub- 
 scriber to show, that the shares subscribed for and recorded, were subscribed 
 for by persons of no actual pecuniary responsibility, and reputed not to be 
 responsible for the amount subscribed for by them, with this qualification : 
 that the defendant might introduce any testimony tending to show that the 
 subscriptions were not made and accepted in good faith. Pen. R. R. Co. v. 
 White, XLi. 512. 
 
 118. The declarations of a subscriber, made, long after the organization, 
 in relation to his subscription, are not admissible to show that the corppra- 
 tors did not act in good faith in receiving his subscription. Pen. R. R. Go. 
 V. White, XM. 512. 
 
 119. It is immaterial with what motives, and under what circumstances, 
 the defendant acted in signing a paper calling, and in attending, a meeting of 
 the directors, at which certain assessments were made ; and evidence offered 
 upon these points is inadmissible. Penobscot R. R. Co. v. White, xli. 512. 
 
 See Evidence, 275 — 279. 
 
 COSTS. 
 
 I. RECOVERY OF COSTS. , 
 
 II. COSTS IN PARTICULAR CASES. 
 
 III. "WHEN AFFECTED BY THE AMOUNT OF DAMAGES. 
 
 IV. TAXATION OF COSTS. 
 
 I. RECOVERY OF COSTS. 
 
 (a) In what oases a paktt will, or will not eecovek costs. 
 
 (b) Who is liable for costs, as party to the suit. 
 
 (a) In what cases a party will, or will not recover costs. 
 
 1. A trustee, who does not disclose at the first term, is not entitled to cost 
 arising at any subsequent stage of the case. Warren v. Gihhs, xxix. 464. 
 
 2. Where a defendant complains for costs, because the action against him 
 has not been entered in Court, he is bound to prove that the writ was served 
 upon him ; otherwise, costs wiU be allowed against him, as a matter of course. 
 Hodge v. Swazey, xxx. 162. 
 
 3. Where an action is entered at the proper term, and the defendant ap- 
 pears by his attorney, and enters his appearance upon the docket, the Court 
 cannot take away the defendant's right to costs, by ordering a mis-entry, on 
 motion of the plaintiff. Whitney v. Brown, xxx. 557. 
 
 4. When an action, brought into this Court by exceptions from the District 
 Court, is dismissed because irregularly brought here, no costs are allowed, 
 unless the case be such that the dismissal of it puts an end to the whole con- 
 troversy. When an action, thus dismissed, is to go back to the District Court 
 for further proceedings, neither party can claim costs. Sweetser v. KeHney, 
 XXXI. 288. Turner v. Putnam, xxxi. 557. 
 
 5. Where, in assumpsit, an offer tq be defaulted for a specified sum is made. 
 
COSTS. 133 
 
 and not accepted, and, on trial, no larger sum is recovered, the defendant's 
 cost, arising subsequent to the filing of the offer, will be allowed and set off 
 against the sum offered; and judgment will be for .the plamtiff, for the bal- 
 anee, with his costs to the time when the offer was entered. Stone -w. Wmtt, 
 XXXI. 409. 
 
 6. In a suit upon a note, or mortgage to secure it, if the plaintiff has 
 received more than the legal rate of interest, and the consequent reduction^ of 
 damages have been procured by proof introduced by the defendant, the plain- 
 tiff is not, but the defendant is, entitled to costs, by the Act of 1846, c. 192. 
 Larrabee v. Lumhert, xxxil. 97. 
 
 7. In a suit upon a six months relief-bond, the defendants cannot recover 
 costs, unless the condition of the bond has been performed, under Act of 1848. 
 Hathaway v. Stone, xxxiii. 500. Warren v. Davis, xiii. 343. 
 
 8. An unqualified repeal of a penal statute, or Legislative Resolve, upon 
 which a pending action was founded, extinguishes the suit ; and no costs are 
 recoverable by either party. Saco v. Gurney, xxxiT. 14. Dudley v. 
 Greene, xxxv.'14. 
 
 9. When a creditor's demand is partly upon a lien claim, and partly upon 
 a non-lien claim, he may maintain separate actions, with a recovery of costs 
 in each, notwithstanding the general rule. Bicknell v. Tricksy, xxxiv. 273. 
 
 10. The provision of R. S., of 1841, c. 115, § 56, giving costs to the 
 prevailing party, applies in all cases, except when limited or restricted by 
 some other statute. Mlis v. Whittier, xxxvii. 548. Mudgett v. Emery, 
 XXXVIII. 255. 
 
 1 1 . And the costs in an action are controlled by the laws in force when the 
 judgment is rendered, and not by those in force when the action was com- 
 menced. Ellis V. Whittier, xxxvii. 548. Cole v. Sprowl, xxxyiii. 190. 
 
 12. In a real, action, where, by- brief statement, a portion of the demanded 
 premises is disclaimed, and such part is accepted by the demandant in satis- 
 
 , faction of his claim, a judgment in his favor for costs is erroneous. Mudgett 
 V. Emery, xxxviil. 255. 
 
 13. Under the provisions of R. S. of 1841, c. 125, § 16, when the re- 
 spondent renders an account of the money due, and of the rents and profits in 
 a reasonable time after demand, the complainant can recover no costs. Kit- 
 tredge v. McLaughlin, xxxviii. 513. 
 
 14. And although the respondent has complied with the demand in render- 
 ing the account, yet, if he denies the right of the complainant to redeem when 
 he is entitled to, he can recover no costs. Kittredge v. McLauqhlin, xxxviii. 
 513. 
 
 15. Where an action is commenced upon a bond prescribed in § 6, c. 211, 
 of Acts of 1851, and the selectmen of the town interested indorsed upon it 
 their approval of the suit, no costs are recoverable by the defendants. Saco 
 V. Woodsum, XXXIX. 258. 
 
 16. In a suit against the principal and sureties in a poor debtor's bond, 
 where a tender covers the joint lialility, no costs can be recovered by plain- 
 tiff, though he is entitled to a separate judgment against the principal for 
 twenty per cent, interest on the amount due, beyond the amount tendered. 
 Call V. Lothrop, xxxix. 434. 
 
 17-_-'^though the trial of an action before a magistrate is a nullity for want 
 of jurisdiction, and on appeal the action is dismissed, the prevailing party is 
 still entitled to costs. Call v. Mitchell, xxxix. 465. 
 
134 COSTS. 
 
 18. In an action of replevin, where there is a judgment for a return of a 
 part of the property replevied, and a judgment for plaintiff for the remaining 
 property replevied, both, parties recovered costs. McLarren v. Thompson, 
 XL. 284. 
 
 19. Even under the Act of 1848, c. 73, the husband is not liable to the suit 
 of the wife, and cannot recover costs against her. Smith v. Gorman, xli. 
 405. 
 
 See Opteb, &c. 
 
 Recognizance, 15. 
 
 (b) Who is liable for costs as a party to the suit. 
 
 20. A party who comes into a court of equity to redeem a mortgage, 
 although entitled to redeem, must pay costs to a defendant who is not in fault. 
 Bourne v. Littlefield, xxix. 302. 
 
 21. In order for one to be a party, he must present himself on the docket 
 of the Court, and be subject to costs on trial, if there should be one. Moore 
 V. Mann, xxix. 559, 
 
 22. In a petition for partition, where commissioners are appointed upon a 
 default, and make a return, which is resisted by a written motion, this pro- 
 ceeding does not make those who file the motion parties, or subject them to 
 costs. Moore v. Mann, xxix. 559. 
 
 23. A prochein ami, under bur statutes, is not a party to the suit in such a 
 sense as to make him responsible for costs. Leavitt v. Bangor, xli. 458. 
 
 II. COSTS IN PARTICULAB, CASES. 
 
 24. Under R. S., of 1841, c. 69, § 7, and c. 192 of the Acts of 1846, 
 where the damages, in an action on a usurious note, are not reduced by the 
 oath of the defendant, but by the voluntary act of the plaintiff, in indorsing 
 the amount received as usurious on his note after the commencement of the 
 suit, the defendant is not entitled to costs. Oummings v. Blake, xxix. 105. 
 Hankerson v. Emery, xxxvii. 16. Lumberman's Bank v. Bearce, xli. 505. 
 
 25. A trustee, who does not disclose at the first term, is not entitled to 
 costs arising at any subsequent stage of the case. Warren v. Gibbs, xxix. 
 464. 
 
 26. One who resists, by written motion, the return of commissioners ap- 
 pointed on a petition for partition, is not subject to costs. Moore v. Mann, 
 XXIX. 559. 
 
 27. Upon a defendant's complaint for costs, when the action against him 
 has not been entered in Court, costs will be allowed against him, if he does 
 not prove a service of a writ upon him. Hodge v. Stoazey, xxx. 162. 
 
 28. Costs for defendants in chancery cases, except for special reasons, must 
 be taxed within one year from the judgment. Allen v. Haskell, xxxi. 589. 
 
 29. In addition to the penalty for unlawfully selling spirituous liquor, costs 
 may be awarded by a magistrate. Bicker, pet'r, xxxii. 37. 
 
 30. The proof, mentioned in the Act of 1846, c. 192, which entitles a 
 defendant to costs, in cases of usury, may be that of his own affidavit alone, 
 when not controlled by the oath of the creditor. Bradford v. Fuller, xxxiii. 
 176. 
 
COSTS. 135 
 
 31. In an action, founded upon a judgment, and commenced within the 
 time when an execution might have been issued thereon, but prior to R. S. 
 of 1841, it was not erroneous to allow costs, although such action did not 
 come to judgment till after the K. S. took effect. Withee v. Preston, xxxiii. 
 211. 
 
 32. When an appeal from the judgment of the District Court, sustaining 
 a demurrer to a scire facias upon a recognizance for the appearance of a per- 
 son charged with crime, is dismissed, the defendant is entitled to costs. State 
 V. Jackson, xxxiil. 259. 
 
 33. In an action appealed from the District Court, the plaintiff, if he re- 
 cover in this Court more than twenty dollars, as damages, is entitled to full 
 costs in the District Court, although the verdict there in his favor was for less 
 than twenty dollars. Moore v. Thompson, xxxiT. 207. 
 
 34. In adjudging upon the question of cost, in an equity suit, the conduct 
 of the parties toward each other, in relation to the whole subject, may be 
 taken into consideration. Eohy v. Skinner, xxxiv. 270. 
 
 35. One, holding guaranty against the arrest of his person, after being ar- 
 rested, can recover, upon the guaranty, none of the costs or expenses arising 
 subsequently to the arrest. Howakd, J., dissenting. Wing v. Chase, 
 XXXV. 260. 
 
 36. Where a surveyor was appointed on motion of defendants, and against 
 the wishes of the plaintiff, and the defendants prevailed finally in the suit, 
 the cost of the survey was taxed against the plaintiff. Wesley v. Sargent, 
 xxxviii. 315. 
 
 37. A mortgagee in possession for foreclosure, who neglects to render an 
 account of rents and profits on lawful demand, and claims a greater sum than 
 is due upon the mortgage, is liable for costs in the suit to redeem. Sprague 
 V. Graham, xxxviii. 328. 
 
 38. Under the provision of c. 125, § 16, when the respondent renders an 
 account of the money due, and the rents and profits, in a reasonable time after 
 demand, the complainant can recover no costs. Kittredge v. McLaughlin, 
 XXXVIII. 513. 
 
 39. Though the respondent has complied with the demand in rendering the 
 account, yet, if he denies the right of the complainant to redeem when he is 
 entitled to, he can recover no costs. Kittredge v. McLaughlin, xxxviii. 513. 
 
 40. In a submission at common law, containing no stipulation as to costs, 
 the referees cannot award costs. Hanson v. Webber, xl. 194. 
 
 41. In an action of replevin, where there is a judgment for a return of a part 
 of the property replevied, and a' judgment for the plaintiff for the remaining 
 property replevied, both parties recovered costs. McLarren v. Thompson, 
 XL. 284. 
 
 42. In a suit upon a usurious note by a bank, the damages must be re- 
 duced by the oath of the defendant by reason of such usurious interest, in 
 order to recover costs against the plaintiff. Lumberman's Bank v. Bearce 
 xii. 505. ' 
 
 43. A stockholder in a corporation is liable to costs in a suit by a creditor 
 of the corporation against him, notwithstanding the amount of his stock may 
 have been exhausted by the damage in said suit. Cole v. Butler xliii 
 401. ' 
 
136 COSTS. 
 
 44. After interlocutory judgment for partition, no costs can be taxed for the 
 petitioner against the respondent. Ham v. Ham, xliii. 285. 
 
 See COTJNTT COMMISSIONESS, 29. 
 
 in. WHEN AFFECTED BY THE AMOUNT OF DAMAGES. 
 
 45. Where the plaintiff obtained a verdict in the District Court for eighty 
 dollars as damages, and the defendant appealed, and the plaintiff obtained a 
 verdict for only twenty dollars as damages in this Court, and, exceptions hav- 
 ing been filed, the cause was continued: — Held, that the plaintiff must be 
 restricted to the recovery of costs equal to one-quarter part only, of the 
 amount of damages found by the jury. Shbpley, J., dissenting. Forbes v. 
 Bethel, XXVIII. 2Q4. 
 
 46. Where, in assumpsit, a set-off is filed, and evidence is introduced by 
 the parties in support of their respective claims, and the plaintiff obtains a 
 verdict of less than twenty dollars, he is entitled to quarter costs only, unless 
 the jury certify, in their verdict, that the damages were so reduced, by means 
 of the set-off allowed to the defendant. Thompson v. Torrvpson, xxxi. 130. 
 
 47. In an action of case for obstructing a passage way, the defendant, 
 by his pleadings, may bring the plaintiff's title into question. Such action, 
 therefore, may be brought originally in the District Court, with a recovery of 
 full costs, though the damage recovered should not exceed twenty dollars. 
 Sutherland v. Jackson, xxxii. 80. 
 
 48. So, in an action for breach of warranty, in the conveyance of land. 
 Morrison v. Kittredge, xxxii. 100. 
 
 49. If, in an action appealed from the District Court, the plaintiff recover 
 in this Court more than twenty dollars, as damages, he is entitled to full costs 
 in the District Court, although the verdict there was for less than twenty dol- 
 lars. Moore V. Thompson, xxxiv. 207. 
 
 50. Full costs cannot be recovered in an action where the judgment is 
 twenty dollars or less, notwithstanding such action is against a town for sup- 
 plies furnished a pauper of that town, when the plaintiff claims under a con- 
 tract with the overseers of the poor ; notwithstanding the Act of 1842, c. 3'12, 
 § 20. Rawson v. New Sharon, xliii. 318. 
 
 IV. TAXATION OF COSTS. 
 
 51. Costs for defendants, in chancery cases, except for special reasons, must 
 be taxed within one year from the judgment. Allen v. Haskell, xxxi. 589. 
 
 52. Leave is properly given, at Nisi Prius, to file items of cost after the 
 expiration of a year from the rendition of judgment, in equity, it being shown 
 that the party has exercised due diligence. Farley v. Bryant, xli. 400. 
 
 COUNTERFEITING. 
 See Indictment, 70. 
 
COUPONS. - COUNTY. - COUNTY COMMISSIONERS. 137 
 
 COUPONS. 
 
 1. A coupon is an interest certificate, printed at the bottom of transferable 
 bonds, given for a term of years. Myers v. Y. & G. B. R. Co., xliii. 232. 
 
 2. In the absence of proof of custom as to the negotiability of coupons, 
 disconnected from the bonds with which they were issued, an independent 
 negotiable character cannot be given them without the interposition of the 
 Legislature, unless the intention of the party issuing them, distinctly so ap- 
 pears upon the face of the coupon itself. Myers v. T. & C. B. B. Co., 
 XLiii. 232. 
 
 CO-TENANTS. 
 
 See Joint-tenants and Tenants in Common. 
 
 COUNTY. 
 
 1. Before an action can be maintained against the county to collect fees for 
 committing persons to the house of correction, in Portland, such fees must 
 be audited by the County Commissioners, and found to be due. Huse v. 
 Cumberland, xxix. 467. 
 
 2. The county treasurer is imperatively bound to pay the fees of the sheriff 
 and other executive and ministerial officers in attendance at Court, when tax- 
 ed by the Court. Baker v. Johnson, xii. 15. 
 
 3. The law gives no remedy, by action against the county, for claims of this 
 nature, neither is there any specific or adequate remedy against the treasurer, 
 or upon his official bond, when he improperly withholds payment ordered by 
 the Court. Under such circumstances, a mandamus may be sustained. Ba- 
 ker V. Johnson, xli. 15. 
 
 COUNTY COMMISSIONERS. 
 
 1. There is no provision of law, by which the Atlantic & St. LawTence 
 Railroad Company can be compelled, by an order of the County Commis- 
 sioners, to pay for the " services of the Commissioners and for their expenses, 
 incurred while they were employed on petitions presented by the company to 
 have the damages assessed, sustained by persons, by the location of that rail- 
 road over their lands. A. & St. L. B. B. Co. v. C. Co. Com. xxviii. 112. 
 _ 2. The interest of the petitioner, claiming damages occasioned by the loca- 
 tion of a town way, is one of the questions to be submitted to the jury or 
 committee. Minot v. G. Co. Com., xxviii. 121. 
 
 18 
 
138 COUNTY COMMISSIONERS. 
 
 3. The power which. County Commissioners exercise over roads, under the 
 statute, is a judicial one ; and the records of their proceeding and judgments, 
 so long as they act within the sphere of their duty, cannot be incidentally 
 impeached. Longfellow v. Quinhy, xxix. 196. Small v. Fennell, xxxi. 
 267. Plummer v. Waterville, xxxii. 566. 
 
 4. Exceptions do not lie to the rulings of the District Court, in cases ap- 
 pealed from a decision of County Commissioners. Banks v. Y. & G. Co. 
 Com., XXIX. 288. 
 
 5. There is no right of appeal from a joint decision of County Commission- 
 ers. Banks V. Y. & G. Go. Gam., xxix. 288. 
 
 6. Unfinished processes, commenced by the County Commissioners, for 
 setting off the public lots in unincorporated places, under the Act of 1842, 
 were defeated by the Act of 1848, transferring the care of the public lots to 
 agents, appointed by the Governor and Council. Go. Com. Pet'rs, xxx. 221. 
 
 7. Such processes are not embraced in the clause of the latter act, " sav- 
 ing all actions now pending and causes of action already accrued." Go. 
 Com. Pet'rs, xxx. 221. 
 
 8. Where a city charter gives an appeal to the District Court, to persons 
 aggrieved by the doings of the city authorities as to damages done by the 
 location of streets and ways, the appellate jurisdiction, given by the general 
 law to County Commissioners, upon that subject is taken away. Bangor v. 
 P. Go. Com. xxx. 270. 
 
 9. The authority, given to County Commissioners, R. S. of 1841, c. 25, § 
 31, relative to the assessment of damages created by the location of roads, is 
 limited to roads established under the provisions of that chapter. Bangor v. 
 P. Co. Com. xxx. 270. 
 
 10. County Commissioners are not bound to fix on the time and place for 
 hearing parties, in their order of notice in relation to the alteration, location 
 or discontinuance of a highway. An appointment for that purpose may be 
 conveniently made at the close of the view. Orono v. P. Go. Com. xxx. 
 302. 
 
 11. Where the record of the County Commissioners, of their December 
 term, 1844, states, that the petition for the road was presented at the preced- 
 ing August term, 1844, and the survey and location of the road made in 
 November ; the inference is irresistible, that the location was made in Novem- 
 ber, 1844. Orono v. P. Go. Com. xxx. 302. 
 
 12. County Commissioners are not bound to adopt the language of the 
 petition in their return ; and where the courses and distances are given from 
 one known terminus in the petition, though the other terminus may not have 
 the same description as is in the petition, it is sufficient, if the record does 
 not show any want of identity. Orono v. P. Go. Gom. xxx. 302. 
 
 13. Where a highway is located by the Commissioners, and there are no 
 applications for damages, a continuance of the petition to the then third regu- 
 lar session after their report was made, accepted and recorded, does not im- 
 pair the legality of their proceedings. Orono v. P. Go. Com., xxx. 302. 
 Detroit v. S. Go. Com., xxxv. 373. 
 
 14. Where the County Commissioners caused the reserved land to be set 
 out by an actual location upon the earth, duly entered in the records of the 
 District Court, the boundaries, thus fixed, are conclusive upon the puHic, 
 whether .they include one thousand acres or not. And the grantees of the 
 township cannot object, that the land set out, does not contain one thousand 
 
COUNTY COMMISSIONERS. 139 
 
 acres ; for they may safely convey and warrant the adjoining lands, by such 
 boundaries. Neither is the location invalidated by being taken in two lots, 
 instead of one. Dillingham v. Smith, xxx. 370. 
 
 15. Where lumber had been cut upon the reserved lots, set out as above 
 mentioned, and had been seized and sold by persons claiming to act for the 
 public, it is competent for the purchaser to prove, by parol, that such persons 
 were the acting County Commissioners. Dillingham v. Smith, xxx. 370. 
 
 16. Where County Commissioners have undertaken to locate a public way, 
 their proceedings, until reversed, are valid, if they had jurisdiction to com- 
 mence them, though their subsequent acts may have been erroneous. Small 
 V. Pennell, xxxi. 267. Plummer v. Waterville, xxxii. 566. 
 
 17. Unless they had such jurisdiction, their doings are ineffectual, and may 
 be avoided, even coUateraUy. Small v. Pennell, xxxi. 267. Scarborough 
 V. C. Go. Com., XLi. 604. 
 
 18. A general jurisdiction over the subject matter is not, of itself, sufRoient 
 to give validity to their proceedings. Small v. Pennell, xxxi. 267. 
 
 19. A sufficient jurisdiction can be conferred, (in any case in which they 
 may be called to act,) only by the preliminary measures prescribed therefor 
 by law. Small v. Pennell, xxxi. 267. Phimmer v. Waterville, xxxii. 566. 
 
 20. Where County Commissioners undertake to establish a town way, up- 
 on the reasonable neglect or refusal of the selectmen to locate it, their records, 
 in order to be effectual, must disclose the facts upon which their jurisdiction 
 is founded. Small v. Pennell, xxxi. 267. 
 
 21. In the establishment, by the Commissioners,- of such a way: — Held, 
 they had no jurisdiction in a case, where their records show neither a request 
 made to the selectmen nor one made to the Commissioners ; nor that any of 
 the original petitioners had applied in writing to the Commissioners, nor that 
 application, by any one, had been made to them, within a year from the 
 neglect or refusal of the selectmen. Small v. Pennell, xxxi. 267. 
 
 22. Parol testimony, offered, not to prove a lost record of County Commis- 
 sioners, but as a substitute for such a record, is inadmissible. Small v. Pen- 
 nell, XXXI. 267. 
 
 23. An appeal from County Commissioners, on a petition for the establish- 
 ment of a highway, opens to the consideration of the committee the whole 
 proceedings under the petition. Window v. K. Co. Com., xxxi. 444. 
 
 24. If the Commissioners established a portion of the road prayed for, and 
 refused to establish the other portion, the committee may establish the whole 
 road. Winslow v. K. Co. Com., xxxi. 444. 
 
 25. Where the Commissioners have established one portion of the road 
 prayed for, and, in their report, made no mention of the remaining portion, 
 their silence, in that respect, is to be considered a refusal by them to estab- 
 lish such remaining part. Winslow v. K. Co. Com., xxxi. 444. 
 
 26. The statute of 1847, c. 28, § 3, requires the report of committees, ap- 
 pointed upon appeal from County Commissioners, to be made at the term of 
 the District Court, " next after their appointment." Windham, pet'rs, xxxii. 
 
 27. Unless such report be made at such " next term," a subsequent accept- 
 ance of then: report, by the District Court, is irregular and void. Windham, 
 pet rs, XXXII. 452. 
 
 28. When County Commissioners close their proceedings earlier than is al- 
 lowed by law, their proceedings are irregular. Windham, pefrs, xxxii. 452. 
 
140 COUNTY COMMISSIONERS. 
 
 29. The District Court, on an appeal from County Commissioners, as to 
 highways, have no authority to award costs against the cfriginal petitioners. 
 Jordan, pet'r, xxxil. 472. 
 
 30. Whether an appeal can lie to the District Court from the County Com- 
 missioners, in the matter of a town way ; quere. Jordan, pet'r, xxxii, 472. 
 
 31. Whether, in rendering a judgment, the County Commissioners had ju- 
 risdiction, must appear from their records. Plummer v. Waterville, xxxii. 
 566. Scarhorough v. G. Co. Gom., xli. 604. 
 
 32. A petition to the County Commissioners, placed upon their records, 
 stating certain facts, and invoking their action, in a matter within the scope 
 of their duty, growing out of such facts, gives them jurisdiction. Plummer 
 V. Waterville, xxxii. 566. 
 
 33. Although the statute remedy, authorizing a jury to assess damages in 
 behalf of one over whose land a town road had been located, is called an 
 " appeal," still, it is an appeal to no other extent than that it allows the same 
 question to be examined by another tribunal. Plummer v. Waterville, xxxii. 
 566. 
 
 34. K. S. of 1841, c. 25, § 3, requires that the return by the County Com- 
 missioners, of a location of a highway, shall be recorded at the next term 
 after their proceedings shall have been finished. Gornville v. S. Go. Com., 
 XXXIII. 237. 
 
 35. A \vritten petition to the County Commissioners for the establishment 
 of a county road, gives jurisdiction to them. Waldo v. Moore, xxxiil. 511. 
 
 36. -When the county has incurred expense by the proceedings upon such 
 a petition, the prayer of which is denied, the County is entitled to an adjudi- 
 cation by the Commissioners, that the same be repaid by the petitioners. 
 Waldo V. Moore, xxxiii. 511. 
 
 37. In order to the maintenance of a suit by the County, upon such an 
 adjudication, the record ought to show a party in whose favor, as well as one 
 against whom, it is rendered. Waldo v. Moore, xxxiii. 511. 
 
 38. In such a case, if the record did show to whom the money was to be 
 paid, or if the declaration did specially set forth the facts upon which they 
 claim to have been entitled to it, together with all the necessary averments, 
 although the action might be maintained under § 21, of c. 99, of R. S. of 
 1841, still'the question might arise whether the plaintiffs were entitled, by 
 law, to the money. Waldo v. Moore, xxxiii. 511. 
 
 39. County Commissioners, designated eo nomine to audit bills of expendi- 
 ture in the improvements of a river to facilitate the driving of lumber, act, 
 when auditing such bills, as individuals, and not as a judicial court. And 
 no entry of their doings need be recorded on their records, although the rate 
 of toll for the use of the improvements be made to depend upon the amount 
 of expenditure, as thus ascertained. Machias R. Go. v. Pope, xxxv. 19. 
 
 40. County Commissioners' appraisement of the damage done to an indi- 
 vidual by the location of a railroad across his land, may be revised by a jury, 
 as well upon the application of the railroad corporation, as upon that of the 
 land owner. Kimball v. K. & P. R. R. Go., XXXY. 255. 
 
 41. Natural objects are " durable monuments to be erected at the angles'' 
 of a location of a highway by the County Commissioners, within § 4, of c. 
 25, of R. S. of 1841. Detroit v. 8. Go. Gom., xxxv. 373. 
 
 42. " The top of a narrow horseback,'' on which a location is made, ex- 
 tending through many courses and distances, may be adopted as furnishing a 
 
COUNTY COMMISSIONERS. 141 
 
 sufficient monument at each of the angles. Detroit v. S. Co. Com., xxxt. 
 
 373 
 
 43 The Act of 1845, authorizing the County Commissioners to grant per- 
 mits for the cutting of timber upon the public lots, was repealed in 1848, and 
 the repeal terminated the Commissioners' authority to grant such permits. 
 Small V. Small, xxxv. 400. 
 
 44. Permits, under the Act of 1845, could only be operative for one year. 
 Small V. Small, xxxt. 400. 
 
 45 Thus, a permit for cutting all the timber upon a public lot, though to 
 be cut in such quantities yearly as the Act allowed, was held to be inopera- 
 tive at the end of one year, and to furnish no protection to the purchaser to 
 cut after that time. Small v. Small, xxxv. 400. 
 
 46. The court of County Commissioners is not a court of record. Wood- 
 man v. Somerset, xxxvil. 29. 
 
 47 The statute of limitations may legally be interposed to actions com- 
 menced on the judgments of County Commissioners' Court, after six years. 
 Woodman v. Somerset, xxxvii. 29. 
 
 48. A petition for the location of a county road is sufficiently definite, if it 
 sets forth its termini, and the general course between them. Sumner v. Ox- 
 ford Co. Com., XXXVII. 112. 
 
 49. So, if a petition presents alternative places, each accurately described, 
 for the commencement of a way, it is sufficient. Sumner v. Oxford Co. 
 Com., XXXVII. 112. 
 
 50. Where actual notice has been given to parties interested in the loca- 
 tion of a county road, the want of the statute notice will not avail to quash 
 proceedings, unless some right has been lost or some injury suffered by reason 
 of the omission. Sumner v. Oxford Co. Com., xxxvil. 112. 
 
 51. Parties, interested in the settlement of an agent's account for opening 
 a county road, may be cited to appear at an adjourned term of the Commis- 
 sioner's Court. Sumner v. Oxford Go. Com., xxxvii. 112. 
 
 52. An agent's account for opening a county road, may lawfully be allowed 
 at such adjourned term. , Sumner v. Oxford Co. Com., xxxvil. 112. 
 
 53. If no formal judgment is found upon the County Commissioners' re- 
 cords, of the amount of a distress warrant, by them issued, and the sum for 
 which it is issued is properly ascertained, it wiU not impair their proceedings. 
 Sumner v. Oxford Go. Com., xxxvii. 112. 
 
 54. The warrant of distress, issued by County Commissioners, is no part 
 of the record to be presented in a writ of certiorari. Sumner v. Oxford Co. 
 Com., XXXVII. 112. 
 
 55. The authority of this Court over appeals from County Commissioners, 
 under c. 28, of the statutes of 1847, is limited to the appointment of a com- 
 mittee, action upon their report, and upon its acceptance, entering judgment 
 and forthwith certifying the same to the Commissioners. Brunswick v. O. 
 Co. Com., XXXVII. 446. 
 
 56. The report of such committee can only be impeached for error, fraud 
 or gross partiality. Brunswick v. C. Co. Com. xxxvii. 446. 
 
 57. The Commissioners are not required to follow minutely the line indi- 
 cated in the petition ; but a substantial observance of the route indicated in 
 the petition is aU that is required. Wayne v. K. Co. Com. xxxvii. 558. 
 
 58. Where neither public nor private injury appears to have been sustain- 
 
142 COUNTY COMMISSIONERS. 
 
 ed, by a slight deviation in the road as located, from that prayed for, the 
 Court, in the exercise of its discretionary power, will not interpose to vacate 
 the proceedings. Wayne v. K. Co. Com., xjfxvii. 558. 
 
 59. By c. 196, § 1, of statutes of 1841, before a road can be located across 
 lands not situated within an organized plantation or incorporated town, notice 
 must be given of the pendency of the petition, and of the time and place ap- 
 pointed to consider the same and adjudicate thereon. Ware v. P. Go. Com., 
 xxxviii. 492. 
 
 60. A determination, by the Commissioners, at whose expense the way is 
 to be made, is essential to the validity of their proceedings. Ware v. P. Go. 
 Com., XXXVIII. 492. 
 
 61. None but parties to the record, in an appeal from the County Commis- 
 sioners, can take exceptions to the rulings of this Court. Bipley v. S. Co. 
 Com., XXXIX. 350. 
 
 62. County Commissioners are not parties in an appeal from their decision. 
 Ripley V. S. Co. Com., xxxix. 350. 
 
 63. County Commissioners are authorized by law to lay out a way wholly 
 within the limits of a town. Sermon v. P. Co. Com., xxxix. 583. Smith 
 V. C. Co. Com., XLii. 395. 
 
 64. To entitle the County Commissioners to their appellate jurisdiction, it 
 must appear that the town had the opportunity of knowing fully upon what 
 it was called upon to act, in its corporate capacity, touching the acceptance 
 of the way in question ; and that, with such knowledge, they unreasonably 
 refused to approve and allow the town way or private way laid out by the 
 selectmen. Guilford v. P. Co. Com., XL. 296. 
 
 65. The proceedings of the Commissioners will be void, in allowing and 
 approving such town way, unless the petition or record shows, that the laying 
 out of the town way, with " the boundaries and admeasurements" of the same, 
 was reported to the town, and the location filed with the town clerk seven 
 days at least before the meeting for acceptance. Guilford v. P. Co. Com., 
 XL. 296. 
 
 66. County Commissioners have no power to locate highways over creeks 
 or arms of the sea which are navigable, and construct bridges so as to impede 
 their use for the purposes of navigation. State v. Anthoine, XL. 435. 
 
 67. And bridges, constructed over such waters by their authority, may be 
 removed by any person impeded thereby. State v. Anthoine, XL. 435. 
 
 68. County Commissioners have not jurisdiction in all cases of refusal by 
 towns to approve and allow of ways laid out by their selectmen. Scarborough 
 v. C. Co. Com., XLi. 604. 
 
 69. The Commissioners obtain jurisdiction only when the petition on re- 
 cord presents a case within the provisions of statute. Scarborough v. C. 
 Co. Com., XLI. 604. 
 
 70. Thus,' under R. S. of 1841, c. 25, § 34, County Commissioners can act 
 only upon a petition of some person aggrieved by such refusal or delay, " if 
 such way lead from land under his possession and improvement to any highway 
 or town way." Scarborough v. C. Co. Com., xli. 604. 
 
 71. The Act of 1853, c. 26, amending the Act of 1852, c. 221, was pro- 
 spective in its operation. Smith v. C. Co. Com., xlii. 395. 
 
 72. When an appeal is taken from County Commissioners, in reference to 
 the location, &c., of a highway, all further proceedings by the Commissioners 
 
COURT MARTIAL. — COURTS IN GENERAL. 143 
 
 are suspended If the appeUate court decide wholly against the doings of the 
 ComZsToner;, it ends thL; if it wholly affirm them, they wdl Foceed from 
 the point which they had reached when the appeal was taken ; if it affirm 
 them^in part only, they will complete their work in conformity with the judg- 
 ment of the appeUate court. Smith v. C. Co. Com., xlii. 395. 
 
 See Action, 18. 
 
 Amendment, 25. 
 
 COURT MARTIAL. 
 
 Where a captain in the militia was deposed by the sentence of a court 
 martial, and afterwards was prosecutedby the ensign for not performing mili- 
 tary duty, he has a right to inquire into the legality of the proceedings of the 
 court martial. Crawford v. Howard, xxx. 422. 
 
 COURT AND JURY. 
 See Law and Fact. 
 
 COURTS IN GENERAL. 
 
 1. Where it appears from the docket, that a party with his surety recog- 
 nized to prosecute an appeal from the District Court to this Court, and the 
 clerk died before the recognizance was extended upon the record, a subsequent 
 clerk, by direction of the Court, may complete the imperfect record. But the 
 new clerk has no authority to do it without such direction. Longley v. Vose, 
 XXVII. 179. 
 
 2. Courts of record have control over its own records and proceedings, as 
 long as they remain incomplete, and until final judgment has been rendered ; 
 and until then, it is the established practice in such Courts to regard all 
 actions, whether on the docket of the existing or a former term, as within the 
 jurisdiction and control of the Court. Woodcoch v. Parker, xxxv. 138. 
 Lewis V. Boss, XXXVII. 230. 
 
 3. Thus, a Court may bring forward, from a previous term, any uncom- 
 pleted action, and alter the docket entry pertaining to it. Woodcock v. 
 Parker, xxxv. 138. 
 
 4. If the record of a judgment of a Court of record is incomplete, through 
 the mistake of its clerk, it may be corrected, after any lapse of time, by the 
 Court. Lewis v. Boss, xxxvii. 230. 
 
144 COURT OF RECORD. — COVENANT. 
 
 COUET OF KECOKD. 
 
 1. Whether a court be a court of record, does not depend upon the fact, 
 that it does or does not keep a record of its proceedings, or that it is or is 
 not required by law to do so. Woodman v. Somerset, xxxvii. 29. 
 
 2. After final judgment in a court of record, proceeding according to the 
 common law, the only remedy for a correction of its errors is a writ of error. 
 When it is not a court of record, or does not proceed according to the com- 
 mon law, certiorari and not error, is the remedy. Woodman v. Somerset, 
 XXXVII. 29. 
 
 3. A court of record is one, which has jurisdiction to fine or imprison, or 
 one having jurisdiction of civil cases above forty shillings, and proceeding ac- 
 cording to the course of the common law. Woodman v. Somerset, xxxvii. 
 29. 
 
 4. The Court of County Commissioners is not a court of record. Wood- 
 man V. Somerset, xxxvii. 29. 
 
 COVENANT. 
 
 I. COVENANT REAL. 
 
 II. CONSTRUCTION, PERFORMANCE, AND BREACH, 
 III. GENERALLY. 
 
 I. COVENANT REAL. 
 
 1. When a grantee has been evicted by virtue of a judgment against him, 
 that judgment is admissible, in an action upon the covenants of the deed, to 
 prove eviction, but not without notice, to prove the superior title of the 
 recovering party. But if the grantor had notice of, and an opportunity to 
 defend, that suit, it is evidence of the title of the party recovering. Hardy 
 V. Nelson, xxvii. 525. 
 
 2. Upon the breach of warranty in a deed of land, where the grantor was 
 seized when he made the conveyance, and the grantee entered and continued 
 in possession until evicted, the measure of damages is the value of the prem- 
 ises, at the time of eviction, with interest, and the expenses reasonably and 
 actually incurred in the defence of the suit. Hardy v. Nelson, xxvii. 525. 
 
 3. By the common law, the covenant of warranty in a deed of land, if not 
 released or annulled, ordinarily runs with the land to the last purchaser, even 
 by a deed of release. Brown v. Staples, xxviii. 497. Crooker v. Jewell, 
 XXIX. 527. 
 
 4. Where land is conveyed by deed of warranty, and the same premises, at 
 the same time, are conveyed in mortgage, with like covenants, the covenants 
 in the mortgage deed will not operate to preclude the maintenance of an ac- 
 tion on the covenants of the absolute deed. Brown v. Staples, xxviil. 497. 
 
 5. The warrantee of land, while he continues the owner, may release or 
 annul the covenants. But if the covenants be not discharged or annulled, 
 
COVENANT. 145 
 
 and pass witli the land by another conveyance, the first grantee cannot annul 
 them, unless he has been called upon and has paid damages to his grantee for 
 a breach of his own covenants. Brown v. Staples, xxviil. 497. Crooher v. 
 Jeivell, XXIX. 527. 
 
 6. When the warrantee, who has given to his grantor a bond covenanting 
 to discharge a mortgage thereon, has deceased, and his estate is insolvent, all 
 claims existing between the estate and obligee, must be settled before the 
 commissioners of insolvency ; and the covenants of warranty in the deed will 
 be thereby rendered insolvent. Brown v. Staples, xxviii. 497. 
 
 7. Where a covenant which runs with the land, is broken, he in whose 
 time it is broken, whether the grantee or any one who claims and holds under 
 him, may maintain an action for the breach. Crooher v. Jewell, xxix. 527. 
 Allen V. Little, xxxvi. 170. 
 
 8. One of the grantees in a. series of conveyances with warranty, can have 
 no action against his grantor for breach of warranty, occurring after having 
 himself conveyed the land. Crooher v. Jewell, xxix. 527. 
 
 ' 9. The act of the tenant, in vouching his immediate warrantors, does not 
 impair his remedy against a previous warrantor. Crooher v. Jewell, xxix. 
 527. 
 
 10. But covenants of seizin and freedom from incumbrances, are personal 
 covenants in presenti, at common law, and unassignable. And by R. S. of 
 1841, c. 115, § § 16 and 17, such covenants may pass to the grantee's assignee, 
 with a right to maintain a suit in his own name for their breach : — Provided, 
 he shall file in court, at the first term, for the use of his grantor, a release of 
 the covenants in his grantor's deed, and all causes of action on any such 
 covenants. Prescott v. Hohhs, xxx. 345. Allen v. Little, xxxvi. 170. 
 
 11. Where a second mortgagee of land, ignorant of a prior mortgage, dis- 
 charged the second mortgage, in consideration of a quitclaim deed of the 
 land from the mortgager, with covenants of warranty against all claims under 
 or through him ; said grantee, after purchasing the outstanding mortgage and 
 debt secured by it, may recover upon said covenants, the amount paid for the 
 purchase: — Provided, it does not exceed the amount due upon the mortgage 
 note. Cole v. Lee, xxx. 392. 
 
 12. The law has not prescribed any particular form of words necessary to 
 constitute a covenant. Cole v. Lee, xxx. 392. 
 
 13. A prior mortgage is a legal claim, in the nature of an incumbrance 
 Cole V. Lee, xxx. 392. 
 
 14. A subsequent grantee may at any time discharge a prior mortgao'e and 
 resort to his covenants for redress, though no measures have been taken to 
 deprive him of the possession of the land. Gole v. Lee, :^xx. 392. 
 
 15. In a suit upon the covenants in a warranty deed, nominal damages 
 only will be recovered, unless the incumbrances have been discharged, althouo-h 
 the plaintiff has yielded to an entry and possession by the incumbrancer 
 Copeland v. Copeland, xxx. 446. Stowell v. Bennett, xxxiv 422 Peed 
 V. Pierce, xxxvi. 455. 
 
 16. Where one grants land, which was incumbe;red by an outstandlno- 
 mortgage, and the mortgagS is afterwards foreclosed, the measure of damao-es 
 to be recovered by such grantee, on the covenant of warranty, is the value'' of 
 the land at the time of eviction, with interest from that time, together with 
 the value of such improvements as the covenantee has made. Slder v True 
 
 XXXII. 104. J^ntc/ V. J. rue, 
 
 19 
 
146 COVENANT. 
 
 17. An inctoate right of dower is an existing incumbrance on the land, 
 within the meaning of the covenant against incumbrances. Smith v. Can- 
 nell, XXXII. 123. 
 
 18. Where land is conveyed with covenants of general warranty, and, at 
 the same time, is re-conveyed in mortgage, with like covenants, no action 
 upon the mortgage covenants can be maintained by the mortgagee or his as- 
 signee. Smith V. Cannell, xxxii. 123. 
 
 19. As between the parties in such a transaction, the purchaser really 
 pledges nothing but the interest, which he obtained under the deed to him, 
 and is answerable to his grantor for no imperfection existing in the title before 
 the conveyance. Smith v. Cannell, xxxii. 123. 
 
 20. If the owner of land have released • the covenants in the deed of his 
 grantor, no action can be maintained thereon by any subsequent assignee of 
 the land. Littlefield v. Qetchell, xxxii. 390, 
 
 21. In order to protect the grantor against such an action, it is not neces- 
 sary that the release be recorded. Littlefield v. Getchell, xxxii. 390. 
 
 22. A covenant against incumbrances by a grantor in a deed of land, does 
 not estop him from setting up a subsequently acquired title. Sweetser v. 
 
 ■ Lowell, xxxiii. 446. 
 
 23. The covenants, " that the grantor will never make any claim to the 
 land, and that he will warrant and defend the same free from all incumbrances 
 by him made," will not estop him from claiming the land under a title suhse- 
 quently acquired by him. Welis, J., dissenting. Partridge v. Patten, 
 xxxiii. 483. 
 
 24. A covenant, in a deed of land, which is broken at the moment of its 
 execution, does not run with the land, and, at common law, no action upon it 
 can be maintained by an assignee. Ballard v. Child, xxxiv. 355. 
 
 25. R. S. of 1841, c. 115, § § 16 and 17, giving to assignees the right 
 of action upon such covenants, extends only to cases in which an eviction 
 had occurred. Ballard v. Child, xxxiv. 355. 
 
 26. Where no seizin passes by the conveyance, and no possession is taken, 
 there can be no eviction. Ballard v. Child, xxxiv. 355. 
 
 27. General covenants of warranty, in a deed of lands, are prospective, 
 and run with the estate, and vest in assignees and descend to heirs. Allen 
 V. Little, XXXVI. 170. 
 
 28. AVhen there has been a severance of a joint estate, and the legal in- 
 terest is several, each must sue separately for his damages for breach of the 
 covenants which run with the estate. Allen v. Little, xxxvi. 170. 
 
 29. In this State, an intermediate covenantee cannot maintain an action 
 against a prior covenantor, until he has suffered damage. Allen v. Little, 
 xxxvi. 170. 
 
 II. CONSTRUCTION, PERFORMANCE AND BREACH. 
 
 30. If the buildings only, and not the land on which they stand, are con- 
 veyed by deed, the covenant therein, that the grantor will not claim " any 
 right or title to the aforesaid premises," applies only to the buildings, and 
 can have no influence upon any title to the land subsequently acquired by the 
 grantor. Derby v. Jones, xxvii. 357. 
 
COVENANT. 147 
 
 31.' Covenants, that premises, described by metes and bounds, without re- 
 servation or exception, are " free of all incumbrances, except the dower of 
 J. S.," and that the grantor "will warrant and defend the same against the 
 lawful claims and demands of all persons, except the claim of the aforesaid 
 dower," are so restricted, that they will not bind the grantor to warrant or de- 
 fend against the life-estate, assigned as dower. Hardy v. Nelson, xxvii. 525. 
 
 32. A covenant of warranty does not include an incumbrance which the 
 grantee, by an instrument of as high a nature as the deed, has engaged to 
 discharge ; and the grantee, or a second grantee with notice, cannot enforce 
 such covenant as an estoppel, against a covenant of warranty, by himself, of 
 the same premises to his grantor. Brown v. Staples, xxviii. 497. 
 
 33. A covenant, that shares in a manufacturing corporation are free froni 
 all incumbrance, is broken, if the shares of the stockholders were made lia- 
 ble for the debts of the corporation, and if, at the time of the sale, the assets 
 of the corporation are not equal to its liabilities. Clarh v. Perry, xxx. 148. 
 
 34. A prior mortgage is a legal claim, in the nature of an incumbrance. 
 And a subsequent grantee has a right, at any time, to discharge it, and resort 
 to his covenants for redress, though no measures have been taken to deprive 
 
 ■ him of possession. Cole v. Lee, xxx. 392. 
 
 35. Where a warranty deed of land is given, subject to a lien claim, and 
 the grantee agrees in writing, as a part of the consideration, that he will ex- 
 tinguish the lien, such lien is not a breach of the covenants in the deed, up- 
 on which the grantee may maintain an action, to be indemnified for loss by 
 such lien. Copeland v. Copeland, xxx. 446. 
 
 36. The covenant of seizin, in a deed of conveyance, is not broken, where 
 the grantor's lessee has had exclusive occupation of the land, for the next 
 preceding thirty-one years. Ginn v. Haneock, xxxi. 42. 
 
 : 37. The right of a corporation to maintain permanently upon the land of 
 a covenantor, dams, sluices and locks, is an incumbrance within the import 
 of a warranty against incumbrances, in his deed to a third person. Ginn v. 
 Hancock, xxxi. 42. 
 
 38. A joint covenant by two or more persons, that they wiU not do a 
 specified act, which it was lawful for either of them to do alone, is broken 
 whenever the act is done by either of then^. Wing v. Chase, xxxv. 260. 
 
 39. An outstanding, unpaid mortgage, constitutes a breach of the covenant 
 against incumbrances. Beed v. Bierce, xxxvi. 455. 
 
 40. For such a breach, a right of action accrues immediately. Beed v 
 Bierce, xxxvi. 455. 
 
 41. In such an action, if the plaintiff had extinguished the mortgage, the 
 measure of damage would be the sum rightfuUy paid thereon; but if he had 
 not extinguished it, the damage would be nominal. Beed v. Pierce, xxxvi. 
 455. 
 
 42. The covenant of warranty against the lawful claims of all persons is 
 not_ broken untd eviction by paramount title. Beed v. Pierce, xxxvi. 455 
 
 43. Until such eviction, therefore, no right of action arises upon such a 
 covenant. Beed v. P%erce, xxxvi. 455. . 
 
 \Jli t r^^'° ''°^\ \ ^'i ^^f'^^''^' ^^^ existence of which over a part of a 
 
 ii;Lfv''s;!xx?v?5i7!' """'^^^' ^^ ^ '^^^"^^ °^ *^°^^ ~-^- 
 
 indetnlrrr* ^ *^' T*^'' "i ''f '"^" ^"'^'^ '^'"'^'^ that he would 
 mdemnify and save harmless his vendor from any and all liabilities he may 
 
148 COVENANT. 
 
 ' have incurred as stockholder, or from any loss or damage he may sustain from 
 or on account of that capacity, is limited to such liabilities for damages as 
 are recoverable by law of his vendor. Merrill v. Shaw, xxxviii. 267. 
 
 47. Where plaintiff had sold to defendant certain shares in the F. bank, 
 and took his covenant against loss or damage on account of having once 
 owned them ; and, when the charter was repealed, was appointed, and he 
 acted, as one of the receivers of the bank ; and in a suit against it, after 
 such appointment, had wrongfully agreed to a judgment against the bank, 
 upon which judgment his own property was taken in part satisfaction for 
 having owned such shares ; for all expenses by him incurred in obtaining a 
 reversal of such judgment, and expenses and time in defending judicial pro- 
 ceedings growing out of such illegal judgment, he has no claim upon the 
 covenant. Merrill v. Shaw, xxxviii. 267. 
 
 48. A covenant, that one is seized in fee of an undivided portion of the 
 premises conveyed, when partition had previously been made among the 
 several owners, of which he was ignorant, is broken by such partition. 
 Morrison v. McArthur, xliii. 567. 
 
 III. GENERALLY. 
 
 49. A receipt not under seal, cannot be regarded as a release of the cove- 
 nants in a deed, which is not apparently referred to in the receipt; for 
 " covenant by deed must be discharged by deed." Heath v. Whidden, xxix. 
 108. 
 
 50. The act of the tenant, in vouching his immediate warrantors, does not 
 impair his remedy against a previous warrantor. Crooker v. Jewell, xxix. 
 527. 
 
 51. A covenant, that the lessee shall pay the rent and peaceably give up 
 the possession at the end of the term, " and for such further time as the 
 lessees may hold the same," is a security both for the surrender of the estate, 
 and for the rent during the occupation. Kendall v. Moore, xxx. 327. 
 
 52. Where the owner of a miU-dam stipulated under seal, that he would 
 reduce the height of his dam to a specified point, and forever keep it reduced 
 to that point ; and the owner of land, flowed by said dam, granted a right to 
 flow his land by the dam, while it continued reduced to the stipulated point, 
 reserving, however, the right to annul the grant, whenever the dam should be 
 raised above that point : — Held, — 
 
 1st. That the covenant of the owner of the dam to keep its height reduced, 
 was an independent covenant : — 
 
 2d. That the contingent reservation by the land-owner, to annul his grant, 
 gave no election to the owner of the dam to raise it, after having once reduc- 
 ed it to the stipulated point : — 
 
 3d. That such a reservation furnished no protection to the dam-owner, in 
 a suit upon his covenant to keep the dam reduced : — and — 
 
 4th. That, whatever previously acquired right of maintaining the dam at 
 its original height, may have vested in the owner, he is precluded, by his 
 covenant, from setting up such previous right as a defence. Stinson v. Gar- 
 diner, xxxiii. 94. 
 
 53. A. executed a bill of sale to B., vrith covenants of warranty, of three- 
 eighths of a vessel, and C. and D. executed to him a like biU of sale of four- 
 eighths of the same vessel: — Held, that B. would have a remedy upon the 
 covenants in the bills of sale, for the money paid by him to discharge an in- 
 
CREDITOR AND DEBTOR. -CRIMINAL LAW.-CrRTILAGE. 149 
 
 cumbrance upon the vessel, existing at the time of sale. Stoddard v. Gage, 
 
 XLI. 287. , , 
 
 54. Covenants in a deed are qualified and limited by the grant, and cannot 
 enlarge it. Coe v. persons unJcnown, xliii. 432. 
 
 COVERTURE. 
 See Husband and Wife. 
 
 CREDITOR AND DEBTOR. 
 
 If the oiRcer wastes the goods seized, or misappropriates the money deriv- 
 ed from their sale, or fails to return the execution, the debtor is thereby dis- 
 charged. Fuller V. Loring, xlii. 481. 
 
 See Fraud and Fsaudtjient Contetance. 
 PooK Debtoks. 
 
 CRIMINAL LAW. 
 
 1. Where a jury has been empanelled and have rendered a verdict of ac- 
 quittal, and judgment has been entered thereon, though there has been no ev- 
 idence adduced against the accused, he cannot again be put upon trial for the 
 same oifence. Stevens v. Fassett, xxvii. 266. 
 
 2. Where proceedings are upon a complaint and warrant, before a justice of 
 the peace, in a matter where he has final jurisdiction, the prisoner has been 
 arraigned, and tried, discharged as not guilty, and judgment entered, he can- 
 not again be put upon trial under another similar complaint and warrant for 
 the same offence. Stevens v. Fassett, xxvii. 266. 
 
 See CoMPiAiNT. 
 Indictment. 
 
 CURTILAGE. 
 
 1. The curtilage of a dwellinghouse is a space necessary and convenient, 
 and habitually used for family purposes, for the carrying on of domestic em- 
 ployments. It includes the garden, if there be one. It need not be separat- 
 ed from the other lands by fences. State v. Shaw, xxxi. 523. 
 
 2. To constitute a curtilage, there must be an actual occupation of the 
 
150 CUSTOM.— DAMAGES. 
 
 dwellinghouse, by some person or persons. It is not sufficient that it was 
 designed to be, and capable of being occupied for a dwellinghouse. State v. 
 Warren, xxxiii. 30. 
 
 CUSTOM. 
 
 1. Upon a dispute' as to the contract upon which a ship-master sailed a 
 vessel, evidence of custom is admissible. Perkins v. Jordan, xxxt. 23. 
 
 See AssTJMPSiT, 20. 
 Easement. 
 Peesceiption. 
 
 DAMAGES. 
 
 I. IN ACTIONS ON TORTS. 
 II. IN ACTIONS ON CONTRACTS, 
 in, UNDER STATUTES. 
 
 For Damages in Dower, See Doweb, 57. 
 
 I. IN ACTIONS ON TORTS. 
 
 (a) Against Opficeks. 
 
 (b) Replevin. 
 
 (c) Libel and Slander. 
 
 (d) Trespass. 
 
 (e) Tboveb. 
 
 (f ) OlHEE Injueies. 
 
 (a) Against Officers. 
 
 1 . In a suit against an officer, who had taken a receipt for property attach- 
 ed upon a writ, for not delivering the property or the receipt, the defendant 
 cannot show, in mitigation of damages, that the property was of a value less 
 than that alleged in his return upon the writ. Allen v. Doyle, xxxiii. 420. 
 
 2. An officer, who, having authority to remove from the street the building 
 of another person, sells part of its materials, wiU be deemed a trespasser ah 
 initio, and held chargeable for the whole value of the building. Muzzey v. 
 Cahoon, xxxiv. 74. 
 
 3. If an officer, before replevying property, do not take a bond in double 
 its true value, and the defendant in replevin suffer damage thereby, the officer 
 is liable to the amount of injury thereby occasioned ; provided, it do not 
 exceed the amount of the true penalty of such bond. Kimball v. True, 
 xxxiT. 84. 
 
 4. By statute of 1848, c. 71, § 2, if an officer " shall detain any offender, 
 without warrant, longer than such time as was necessary to procure a legal 
 
DAMAGES. 151 
 
 warrant, such officer shaU be liable to pay all such damages as the person 
 detained shall suffer thereby." Burle v. Bell, xxxvi, 317. 
 
 5 An officer who seizes and sells goods as the property of a debtor, which 
 do not belong to such debtor, is a joint trespasser with the purchaser ; and 
 both will be held responsible to the owner for damages accruing to him Irom 
 such sale. Symonds v. Eall, xxxvii. 354. 
 
 6 An officer who attaches property on mesne process and sells it thereon, 
 without the consent of the creditor and owner, or otherwise than by the mode 
 prescribed in K. S. of 1841, c. 114, § 53, becomes a trespasser ai initio, 
 and liable for the value of the property so sold, and interest since the sale. 
 Boss V. PUlhrick, xxxix. 29. 
 
 7. An officer must account for the value of goods sold by him not in 
 accordance with law ; and for those sold according to law, he is liable for the 
 amount of the sales, with interest from the time of sale, deducting the 
 expenses of keeping and selling the same. Lovett v. Pike, xli. 340. 
 
 8. If a deputy sheriff purchase a portion of goods attached by him, and 
 sold at auction, the purchase is a conversion, foT which an action of trover 
 wiU lie ; but the amount paid therefor, if allowed in the execution, may be 
 shown in reduction of damages. If the sale was for a fair price, and the 
 proceeds accounted for to the creditor, he has no just cause of complaint. 
 Lovett V. Pike, xli. 340. 
 
 (b) Replevin. 
 
 9. The damages recovered by the attaching officer in an action of replevin, 
 being recovered in trust, are not conclusive upon the parties in a suit upon 
 the replevin bond. Howe v. Handley, xxTlil. 241. 
 
 10. Where the value of the property replevied might be expected to be 
 diminished by the use of it, and by lapse of time, the obligors in the replevin 
 bond should be bound by the value of the property named in the bond. 
 Howe V. Handley, xxviii. 241. 
 
 11. When the original debtor has received a discharge- in bankruptcy, and 
 his assignee has discharged all claim against the officer for the property at- 
 tached, the damages to be recovered in an action upon the replevin bond, to 
 be retained for the plaintiff's own use, are the amount of the judgment for 
 costs recovered in the action of replevin, with interest from the time of judg- 
 ment, his reasonable expenses incurred in that action, and interest for the 
 same time, and his reasonable expenses incurred in the suit upon the bond ; 
 and also, to recover, for the use of the creditor, interest at the rate of twelve 
 per cent, per annum on the value of the goods, as alleged in the bonds, from 
 the time of the recovery of his judgment to the time when the attachment 
 was dissolved. Howe v. Handley, xxviii. 241. 
 
 12. In replevin, submitted for decision on questions of law, without any 
 stipulation as to the allowance of damages, the Court, at another term, after 
 judgment of nonsuit and return, has no power to assess the defendant's dam- 
 ages, or to submit that question to a jury. Dillingham v. Smith, :kxxii. 182. 
 
 13. If, in a judgment for return in a replevin suit, there be no assessment 
 of damages occasioned by the detention, and if, upon the restitution writ, no 
 return of the goods was obtained, the damage for the detention, computed 
 from the original taking, may be assessed and allowed in an action upon the 
 replevin bond. Smith v. Dillingham, xxxiii. 384. 
 
152 DAMAGES. 
 
 (c) Libel and Slander. 
 
 14. The amount of damages recoverable in an action of slander, for words 
 actionable in themselves, is to be computed by the jury. Newhit v. Shatuck, 
 xxxv. 315. 
 
 15. For words, actionable in themselves, the law implies malice, and that 
 some damages arises therefrom. And in addition to implied malice, plaintiff 
 may prove express malice, to increase damages. True v. Plumley, xxxvi. 
 466. 
 
 16. In slander, brought by a married female, one count charged adultery, 
 and another, that she was a whore : — Held, that proof of adultery would de- 
 feat a recovery upon the first count, and would mitigate, but not defeat, a 
 recovery of damage upon the other. True v. Plumley, xxxvi. 466. 
 
 17. In such an action, it is proper that the jury, in assessing the damage, 
 should regard the probable future as well as the actual past. True v. Plum- 
 ley, xxxTi. 466. 
 
 See Libel and Slandek. 
 
 (d) Trespass. 
 
 18. In trespass, damages are given as compensation, recompense or satis- 
 faction to the plaintiff for the injury actually received by him from the 
 defendant ; and they must be the natural and proximate consequence of the 
 act complained of. Longfellow v. Quimby, xx.is.. 196. 
 
 19. The trouble of looking after trespassers is not of this character. Long- 
 fellow V. Quimby, xxix. 196. 
 
 20. The law does not recognize interest as the exact measure of damages 
 for the detention of property taken in trespass in addition to its value. 
 Longfellow v. Quimby, xxix. 196. 
 
 21. In an action of trespass by an execution creditor, (who had set off by 
 levy his debtor's life estate in land belonging to the debtor's wife,) against 
 the debtor for entering and cutting trees upon such land, the damage which 
 the creditor is entitled to recover, will not extend to trees belonging to the 
 inheritance, the cutting of which by the creditor would be waste. McEeen 
 V. Gammon, xxxiii. 187. 
 
 22. In trespass, by a proprietor of land, for cutting and carrying away 
 growing trees, the plaintiff is entitled to recover for the value of the trees, 
 and for the injury occasioned by cutting them prematurely, and for the injury 
 done to the land, with damages at the rate of six per cent, per annum. 
 Longfellow v. Quimby, xxxiii. 457. 
 
 23. In trespass for injury to personal property, owned by plaintiffs jointly 
 with other co-tenants, damages may be recovered in proportion to the plain- 
 tiff's ownership. Jones v. Lowell, xxxv. 538. 
 
 24. The only criterion for damages in trespass for taking and carrying 
 away personal property, is the value of the property when taken. Sam v. 
 Sawyer, xxxviii. 37. 
 
 25. But where a collector of taxes had seized and sold plaintiff's house, for 
 a void tax, and had refunded the overplus, in an action of trespass, such over- 
 plus was deducted from the value of the house. Ham v. Sawyer, xxxvili. 
 37. 
 
 26. In trespass, for assault and battery, where the act was wantonly done. 
 
DAMAGES. 153 
 
 the plaintiff may recover for the mental anxiety, public degradation and 
 wounded sensibility which an honorable man would feel, and which he suff'ered 
 under such a violation of the sacredness of his person. Wadsworth v. Treat, 
 XLiii. 163. 
 
 27. "Where the defendant co-operated with the co-tenants of the plaintiff' 
 wrongfully, in tearing down an old mill and erecting a new one, at large ex- 
 pense, the plaintiff can recover but nominal damages. Jewett v. Whiting, 
 XLIII. 242. 
 
 28. When damage is caused by the flow of water from a dam, the owners 
 thereof are liable to the full amount of the injury, where there is no negli- 
 gence on the part of the plaintiff, notwithstanding the injury might have been 
 prevented by an expenditure less than the amount of the damage. Reynolds 
 V. C. River Co., xiiii* 513. 
 
 (e) Trover. 
 
 29. Where one, having tortiously cut and carried away trees from the land 
 of another, sells a part of them to a third person, who had no knowledge of 
 the wrong, the owner, even if he can maintain an action of trover against 
 them jointly, can recover of the vendee only the value of the part purchased. 
 Moody V. Whitney, xxxiv. 563. 
 
 30. Ordinarily, the measure of damages in trover for unrestored property, 
 is the value of it at the time of its conversion, with interest. Hayden v. 
 Bartlett, xxxv. 203. 
 
 31. In an action of trover for the conversion of timber, which defendants 
 had cut on plaintiff's land, hauled three mUes and deposited on another piece 
 of land belonging to plaintiff, and near his miU, the measure of damages is its 
 value when first separated from the freehold. Moody v. Whitney, xxxviii. 
 174. 
 
 32. If a deputy sheriff purchase a portion of the goods attached by him, 
 and sold at auction, the purchase is a conversion, for which an action of trover 
 wUl lie ; but the amount paid therefor, if allowed on the execution, may be 
 shown in reduction of damages. Lovett v. Fike, xli. 340. 
 
 (f) Other Injuries. 
 
 33.^ Damages are given as compensation, recompense or satisfaction to the 
 plaintiff for the injury actually received ; and they must be the natural and 
 proximate consequence of the act complained of. Longfellow v. Quimhur 
 XXIX. 196. Worcester v. G. F. M. Go., xli. 159. 
 
 34. Damages are recoverable for an injury to a mill lawfully existing, oc- 
 casioned by the erection of any dam, unless the right to maintain such 'mill 
 shall have been lost or defeated. Thomas v. Hill, xxxi. 252. 
 
 35. In a suit to recover'for an injury done to the plaintiff's horse, through 
 theunskillfuhiess of the defendant, the expenses of doctoring and taking care 
 of it cannot be recovered, unless declared for specially. Patten v Liblev 
 XXXII. 378. ■*' 
 
 36. In trespass for a horse iUegaUy sold by a collector of taxes, the plaintiff 
 having received the surplus of the sale above the tax and costs, damat^es are 
 to be entered up for the value of the horse, less such surplus. Ham v" Saw- 
 yer, XXXVIII. 37. 
 
 20 
 
154 DAMAGES. 
 
 37. In an action on a warranty for the soundness of a horse, the measure 
 of damages is the difference in the value of what the horse was warranted to 
 be, and what it actually was at the time of the sale ; and the jury cannot add 
 interest from the date of the writ, or its equivalent. Moulton v. Scruton, 
 XXXIX. 287. 
 
 38. The general rule would seem to be, that the jury cannot allow interest 
 in actions for unliquidated and contested claims, sounding in damages ; but 
 it is within the discretion of a jury to give interest, in such cases, in the 
 name of damages. Appibton, J., non-concurring. Moulton v. Scruton, 
 XXXIX. 287. 
 
 39. In actions ex delicto, all damages must be the result of the injury com- 
 plained of. Worcester v. G. F. M. Co., xii. 159. 
 
 40. Hence a party cannot recover damages for being deprived of the use 
 of his real estate, so that he could not appropriate it for an imaginary purpose, 
 for which he did not design to use it. Worcester v. O. F. M. Co., xli. 159. 
 
 See Action, 17. ^ 
 
 II. IN ACTIONS ON CONTRACTS. 
 
 (a) On simple contracts. 
 
 (b) On covenants real. 
 
 (g) On other covenants and bonds. 
 
 (a) On simple contracts. 
 
 41. Where the plaintiff, "being about to set up a steam engine and 
 planing machine, agreed with the defendant — a house carpenter — to take 
 charge of, and oversee the work, (which was making drums, machinery and 
 other gearing necessary to connect them,) and to receive one dollar and fifty 
 cents per day for his services ; and where he so worked there, until he pro- 
 nounced the machinery to be in running order, and then left: — ifeZd, that 
 the defendant was not thereby bound by a special agreement to do the work 
 in any manner ; and that the defendant was entitled to be paid for his own 
 labor. Hashell v. Sawyer, xxvii. 234. 
 
 42. Usually, the damages recoverable at law are limited to the natural 
 and proximate consequences of the act complained of. Furlong v. Polleys, 
 XXX. 491. Bridges v. Stichney, xxxviii. 361. 
 
 43. If the damages sustained are not the necessary consequence of it, 
 they can be recovered only when specially set forth in the declaration. Fwr- 
 long V. Polleys, xxx. 491. 
 
 44. The measure of damages for the neglect or refusal to deliver goods, 
 purchased or agreed for, is determined by law to be the difference between 
 the price paid or agreed to be paid, and the market price of the like goods at 
 the time and place of delivery. Furlong v. Polleys, xxx. 491. 
 
 45. The essence of the rule being to place the party injured in the same 
 situation, by allowing him to supply himself, as he would have been, if the 
 goods had been delivered. Furlong v. Polleys, xxx. 491. 
 
 46. Thus, where hay of a certain quality, and at a fixed price, paid by 
 note, was to be delivered in the forest, for lumbering operations, and on a 
 specified day ; and hay was furnished, but it was deficient in quality, and was 
 not accepted: — Held, the measure of damages to be the difference between 
 the priqe j)aid by the note, and the market price of the agreed sort of hay, at 
 
DAMAGES. 155 
 
 the nearest and most suitable place where it could be purchased, together with 
 the necessary cost of transportation therefrom. Furlong v. Polleys, xxx. 491. 
 
 47. When parties each have a real, though distinct interest in an enterprize, 
 and one agrees to pay the other a proportion of the expenses incurred by the 
 other in sending a number of men to a distant point to protect the enterprize, 
 " and all expenses in connection therewith ;" the wages and expenses of the 
 men, while returning, (if they return immediately after having performed the 
 service,) are within the contract. And the plaintiff's liability to pay, is a 
 sufficient ground of action against the defendant. Dwinel v. Barnard, 
 XXXII. 116. 
 
 48. When a party has obligated himself to receive a deed of land and pay 
 therefor a stipulated sum, and the deed, though refused, was duly tendered 
 and placed in a position to await the call of the obligor, the damage to be 
 recovered, is the contract price and interest. Oatman v. TFaWcer, xxxiii. 67. 
 
 49. Where one had contracted to labor in the service of another, during a 
 given time, at a specified rate of wages, he is entitled to recover all the damage 
 he has sustained, by having been discharged by his employer, before the expir- 
 ation of the time, without justifiable cause. Miller v. Ooddard, xxxiv. 102. 
 
 50. One, holding a guaranty against the arrest of his person, cannot re- 
 cover upon the guaranty, after having been arrested, any of the costs or ex- 
 penses, arising subsequently to the arrest. Howakd, J., dissenting. Wing 
 V. Ghase, xxxv. 260. 
 
 51. Upon the erection of a building under a special contract, the contract- 
 or, though he may have departed from the contract, yet if the building have 
 been accepted, is entitled to recover for the labor and materials at the contract 
 price, deducting so much as they are worth less on account of the departures. 
 White V. • Oliver, xxxvi. 92. 
 
 52. Where a sealed lease of land was obtained by false and fraudulent rep- 
 resentations, and the lessee, after having discovered the fraud, did not rescind 
 the _ contract, but continued to occupy the land, in an action by the lessor 
 against the lessee: — BeM, that the amount of damages occasioned to the 
 lessee by the fraud may be deducted from the amount of the rent. Herrin v. 
 Libbey, xxxvi. 350. 
 
 53. Where the defendant contracted for a quantity of joists,, and received 
 them without objection, at his own survey, he is bound to pay the price agi-eed, 
 although they were not. surveyed by any sworn surveyor. Abbott v Good- 
 Win, xxxTii. 203. 
 
 54. Where a seaman agi'eed in writing, with the owners and skipper of a 
 hshmg vessel, that he should have his share of one half of the fish for his 
 services for the season, he is not entitled to any portion of the bounty earned 
 by the vessel. Jeffrey v. Grant, xxxvii. 236. 
 
 55. Where in consideration of a sum advanced to defendant, he agreed to 
 go to the gold diggmgs of California, and give the plaintifi' one half of the 
 proceeds of labor there for one year, no deductions are to be made from 
 such proceeds, by reason of expenses paid for sickness during the year. Sta- 
 ples V. Wheeler, xxxviix. 372. . 
 
 56. Where the plaintiff had contracted to labor in the service of another 
 vZlf F'"" *™'' "-^ ^ '^'"^f '^'^ °^ ^^S«^' ^' '' ^'ititled to recover the 
 Pi ed LllTu^'r'.'T'^^f '^' '=°"'^^'=* ^''''' ^^' ^'^°^' l>i« time ex- 
 
156' DAMAGES. 
 
 57. And, in such case, he will not be liable for any damages the other par- 
 ty may suffer by employing another. Lawrence v. GulUfer, xxxviii. 532. 
 
 58. In an action on a warranty for the soundness of a horse, the measure 
 of damages is the difference in value of what the horse was warranted to be, 
 and what it actually was, at the time of the sale. Moulton v. Scruton, 
 XXXIX. 287. 
 
 59. The general rule would seem to be, that it is not in conformity with 
 legal principles, to allow interest in actions for unliquidated and contested 
 claims, sounding in damages ; but it is within the discretion of a jury to give 
 interest in such cases in the name of damages. Moulton v. Scruton, xxxix. 
 287. 
 
 60. Where a railroad company agreed to pay a contractor ninety per cent, 
 monthly, of the estimated amount of the work done and materials procured, 
 in the construction of their road, under the report of their engineer, and 
 authorized the engineer to declare the contract abandoned, and any sum due 
 the contractor to be forfeited to the company, whenever he should show that 
 the covenants of the contractor were not performed: — Held, that where the 
 engineer had put an end to such contract, it did not operate to discharge the 
 company from the payment of the ninety per cent, found to be due from them,- 
 prior to such determination. Bicker v. Fairhanhs, XL. 43. 
 
 61. The defendant agreed to purchase a cargo of southern pine lumber, at 
 a certain price per M., and pay the freight. When it was delivered, he 
 refused to pay the freight ; and the plaintiffs told him, that if he took it, he 
 should pay $40 per M., unless he paid the freight: — Held, that defendant 
 repudiated the contract, by his refusal; and by keeping the lumber, he was 
 chargeable for it at the price fixed by plaintiffs. Patten v. Hood, XL. 457. 
 
 See Attachment, 69. 
 Bills, &c., 22. 
 
 (b) On covenants real. 
 
 62. Upon the breach of the covenant of warranty in a deed of land, where 
 the grantor was seized when he conveyed, and the grantee entered, and con- 
 tinued in possession until evicted, the measure of damages is the value of 
 the premises, at the time of the eviction, with interest, and the expenses 
 reasonably and actually incurred in the defence of the former suit, and, the 
 value of improvements, made since the conveyance. Hardy v. Nelson, xxvil. 
 525. aider v. True, xxxii. 104. 
 
 63. Upon a breach of the covenant against incumbrances, the covenantee 
 is entitled to recover against the covenantor, the amount paid in discharging 
 the incumbrance. Cole v. Lee, xxx. 392. Seed v. Pierce, xxxti. 455. 
 
 64. Upon a breach of the covenant against incumbrances, if the plaintiff 
 has not been evicted, or has not removed the incumbrance, he can recover 
 nominal damages only. Copeland v. Copeland, xxx. 446. Stowell v. Ben- 
 nett, xxxiv. 422. Beed v. Pierce, xxxvi. 455. 
 
 65. Upon a breach of the covenant against incumbrances, nominal damages 
 only will be recovered, unless the incumbrance have been discharged, although 
 the plaintiff has yielded to an entry and possession by the incumbrancer. 
 Stowell V. Bennett, xxxiy. 422. 
 
DAMAGES. 157 
 
 (c) On other covenants and bonds. 
 
 66. In a suit upon a poor debtor's bond, since the Act of 1842, c. 31, was 
 in force, if the condition has not been performed, the damages are to be as- 
 sessed by the Court, and not by the jury. Call v. Barker, xxvii. 97. 
 
 67. Where a law question, in a suit upon a poor debtor's bond, was pend- 
 ing, at the time that the Act of 1848, c. 85, went into effect, arising on an 
 agreed statement of facts, the Court will give "an opportunity for the defend- 
 ant to have the damages estimated by a jury, if the condition of the bond be 
 forfeited. Robinson v. Barker, xxvill. 310. 
 
 68. If the condition of a poor debtor's bond be broken, and he has taken 
 the oath under Act of 1848, c. 85, § 2, the amount of damages would be 
 estimated by the ability of the debtor to have made payment of the debt, or 
 some portion of it. Call v. Barlcer, xxviii. 317. Bard v. Wood, xxx. 155. 
 
 69. In such case, the actual damage is the loss suffered by the non-per- 
 formance of the condition of the bond, and not the damages occasioned by 
 the particular cause which produced a breach of the condition. Call y. 
 Barker, xxtiii. 317. Torrey v. Berry, xxxvi. 589. 
 
 70. In all cases upon the breach of a poor debtor's bond, where the debtor 
 has been permitted to take, and has taken, the oath prescribed in the 148th 
 c. of R. S., of 1841, and whether the justices had jurisdiction or not, dam- 
 ages must be assessed according to the Act of 1848, c. 85, § 2. Bard v. 
 Wood, xxx. 155. Baker v. Carleton, xxxii. 335. Hathaway v. Stone, 
 XXXIII, 500. Winsor v. Clark, xxxvi. 110. Torrey v. Berry, xxxTi. 589. 
 Bray v. Eelley, xxxyiii. 595. Houghton v. Lyford, xxxix. 267. Nash v. 
 Babb, XI. 126. 
 
 71. In an action upon the breach of a bond for the conveyance of real 
 estate, the damages to be assessed, are the value of the land, at the time it 
 should have been conveyed. Bussell v. Copeland, xxx. 332. 
 
 72. In a suit for the breach of a bond, given to procure the release of a 
 debtor from arrest on mesne process, the penal sum may be chancered to the 
 amount of the actual damages. Sargent v. Pomroy, xxxiii. 388. Clifford 
 V. Kimball, xxxix. 413. 
 
 73. In the absence of proof upon the point, the sum due ox; the execution 
 recovered in the suit, will be considered the actual damage. Sargent v. 
 Pomroy, xxxiii. 388. 
 
 74. That rule will not be varied by proof that the debtor was without 
 attachable property at a period several months later than the breach of the 
 bond. Sargent v. Pomroy, xxxiii. 388. ^ 
 
 75. In a suit upon a bond, conditioned to pay an outstanding mortgage 
 upon land purchased by the obligee, commenced after a breach, the damage 
 occurrmg durmg its pendency may be included in the judgment. Genninqs 
 V. Norton, xxxT. 308. 
 
 76. Where, in such a case, judgment upon the mortgage has been recov- 
 ered agamst one to whom the obligee had conveyed a part of the land without 
 covenants of warranty, and the obligee has paid the amount of the judgment : 
 Meld, thAt as such payment lifted the mortgage from his own part of the land 
 as weU as from that of the grantee, he may recover for the amount due on 
 me mortgage ; but not for the cost in that judgment, the payment of the 
 same bavmg been voluntary. Gennings v. Norton, xxxY. 308. 
 
 77. For necessary services rendered and expenses paid in defending a suit. 
 
158 DAMAGES. 
 
 brought upon such mortgage against the obligee, he is entitled to recover 
 compensation in his suit upon the bond. Gennings v. Norton, xxxv. 308. 
 
 78. Where, in an action of tort, the defendant, after having been arrested, 
 was released upon giving bond to the plaintiff, in accordance vcith R. S. of 
 1841, c. 148, § 17 ; and, after judgment was recovered, he neglected to fulfill 
 the conditions of the bond: — Seld, that such bond was obligatory as a 
 statute bond ; and that the damages would be the amount of the judgment 
 and costs of the action in which it was given, with interest thereon. Bich- 
 ards V. Morse, xxxvi. 240. 
 
 79. A joint relief bond, given by two or more execution-debtors, as prin- 
 cipals, is not a statute bond, but is good at common law, if voluntarily given. 
 And where, in an action upon such a bond, one of the principals had been 
 discharged upon taking the poor debtors' oath, and the other was proved to 
 be without property, judgment was rendered for the penalty of the bond and 
 full costs, and execution issued for one cent, as damages. Hatch v. Norris, 
 xxxTi. 419. 
 
 80. Upon an action for breach of a poor debtor's bond, for not delivering 
 property disclosed, the obligee is entitled to recover the real and actual 
 damage upon all the evidence submitted, though no evidence is offered of the 
 value of the property disclosed. Torrey v. Berry, xxxvi. 419. Nash v. 
 Ball, xi. 126. 
 
 81. Where the plaintiff had sold to the defendant certain shares in a bank, 
 and took his covenant against loss or damage on account of having once own- 
 ed them ; and, when the charter was repealed, he was appointed, and acted 
 as, one of the receivers of the bank ; and, in a suit against the bank, after 
 such appointment, he had wrongfully agreed to a judgment against the bank, 
 upon which judgment his o^vn property was taken in part satisfaction for hav- 
 ing owned such shares : — Held, that for all expenses by him incurred in ob- 
 taining a reversal of such judgment, and expenses and time in defending ju- 
 dicial proceedings growing out of such illegal judgment, he cannot recover. 
 Merrill v. Shaw, xxxviii. 267. 
 
 82. Damages, in such case, are limited to such liabilities as legitimately 
 grow out of his capacity as a stockholder. Merrill v. Shaw, xxxviil. 267. 
 
 83. In a suit upon a bond, given under § 17, of c. 148, of R. S. of 1841, 
 damages are to be assessed by the Court, and not by the jury, and the amount 
 is the actual damages sustained. Clifford v. Kimball, xxxix. 413. 
 
 84. No allegation of a fraudulent concealment of property, in such case, 
 whereby the debtor would be prevented from taking the statute oath, will en- 
 title the obligee to a hearing before the jury. Neither will Art. 1, § 20, of 
 the constitution, give any such right. Clifford v. Kimball, xxxix. 413. 
 
 85. In a suit on a bond, stipulating that defendant will not engage in the 
 business of iron casting, within a certain distance of a certain place, for a 
 fixed time, damages, which were sustained after the date of the writ, and up 
 to the time of trial, are recoverable. Whitney v. Slayton, xL. 224. 
 
 86. If the oath be not administered to a poor debtor before a breach of the 
 conditions of the bond, the plaintiff will be entitled, as damages, to the whole 
 amount due on his execution, with interest and costs. Newton v. Nevibegin, 
 XLiii. 293. 1 
 
 See Bond, 35, 37, 38, 41. 
 
BEST. 159 
 
 , III. UNDER STATUTES. 
 
 87. On complaint to recover damage for injury done to plaintiff's land, by 
 flo-wing the same for the support of mills, the jury may include compensation 
 for the injury done to the plaintiff's fences, and for the annual expense of 
 maintaining fences for the future. Jones v. Phillips, xxx. 455. 
 
 88. Under the Act of 1848, c. 71, § 2, if an officer "shall detain any of- 
 fender, without warr-ant, longer than such time as was necessary to procure a 
 legal warrant, such officer shall be liable to pay all such damages as the per- 
 son detained shall suffer thereby. Burlce v. Bell, xxxvi. 317. 
 
 89. On complaint for flowing land, damages can only be awarded for the 
 effects of the dam described in the complaint. And damages, arising from 
 other dams, although auxiliary to the one complained of, cannot be considered 
 by the jury. Underwood v. N. W. S. Co., xxxviii. 75. 
 
 90. By R. S. of 1841, c. 154, § 23, every master of a vessel, who shall 
 knowingly transport out of the State, any person under the age of twenty- 
 one years, without the consent of his parent, master and guardian, &c., shall 
 be liable to such parent, &c., for all damages sustained, in an action on the 
 case. Nickerson v. Harriman, xxxviii. 277. 
 
 91. No vindictive damages are contemplated by said statute, but the 
 measure of damages is compensation for the pecuniary injury or loss resulting 
 from such transportation. And it is for the direct consequences of his own 
 act, and not for the act of God, that such master is responsible. Nickerson 
 V. Harriman, xxxviii. 277. 
 
 92. Thus, if the minor, who is transported, dies at the termination of the 
 outward voyage, no damages can be recovered by his father, of the master, 
 for the loss of his son's services, after his death. Nickerson v. Harriman, 
 XXXVIII. 277. 
 
 See DowEE, 57. 
 Mills, 70,-75. 
 
 DEBT. 
 
 An action of debt can be maintained on a recognizance, taken in the 
 District Court, conditioned to enter and prosecute an appeal to this Court, on 
 a failure to perform the condition. Longley v. Vose, xxvii. 179. 
 See AcTioif, 38. 
 Amendment, 7. 
 
 DEBTOR AND CREDITOR. 
 See Feaitd and FaAXTDULENi Conveyances. Poob Debtoes. 
 
160 DEED. 
 
 DECLARATION. 
 
 See Amendment, 6-19. Writs. 
 
 DECLARATIONS. 
 
 See Etidence, 321-346. 
 
 DEDICATION. 
 See Wats. 
 
 DEED. 
 
 I. PARTIES. ' 
 
 II. EXECUTION, DELIVERY AND ACCEPTANCE, 
 
 in. ACKNOWLEDGMENT AND REGISTRATION. 
 
 IV. WANT OF TITLE, AND ERRORS IN DEEDS. 
 
 V. VALIDITY AND EFFICACY. 
 
 VI. CONSTRUCTION. 
 
 I. PARTIES. 
 
 (a) Deeds made by agents, ob undee authority op law. 
 
 (b) Parties geneeally, and theik duties. 
 
 (a) Deeds made by agents, or under authority of law. 
 
 1. Where a power of attorney has been given, authorizing the conveyance 
 of land, verbal directions from the constituent to the attorney can confer no 
 new authority, nor enlarge- that contained in the power of attorney. Sf afford 
 V. Sohbs, XXIX. 148. 
 
 2. A ratification by the proprietor of land, of an unauthorized' conveyance 
 by an attorney, must be by an instrument under seal, in order to be effectual. 
 Spofford V. Soils, XXIX. 148. 
 
 3. The taking back a mortgage and notes by the proprietor, the mortgage 
 not referring specifically to the deed, and not containing any thing inconsistent 
 with the attorney's want of authority, is not a ratification. Spofford v. Hohbs, 
 XXIX. 148. 
 
 4. Where one holding office, has authority, in the exercise of such office, 
 to convey real estate for the benefit of others, his deed is void, if it purport 
 to have been executed, not in the exercise of that office, but of some other 
 office. Warren v. Stetson, xxx. 231. 
 
DEED. 161 
 
 5. Where the selectmen, treasurer and clerk of a town are authorized to 
 convey the ministerial and school lands, it is essential that the clerk, as a 
 distinct branch of the board, should join in the deed. Warren v. Stetson, 
 XXX. 231. 
 
 6. A conveyance of land by an administrator, under a license from the 
 Probate Court, after the time limited by law for the operation of the license, 
 is void. Chadbourne v. Mackliff, xxx. 354. 
 
 7. Where executors have power to sell real estate, coupled with an interest 
 in trust, a conveyance by survivors or by those who alone accept the trust, 
 will lie good. Put. F. School v. Fisher, xxx. 523. 
 
 8. A conveyance by a devisee under a foreign will, made before the will is 
 filed and recorded in this State, is nevertheless good, as his title commences 
 upon the death of the testator. Put. F. School v. Fisher, xxx. 523. 
 
 8. By R. S. of 1841, c. 91, § 14, " all deeds and contracts, executed by an 
 authorized agent for an individual or corporation, either in the name of the 
 principal, by such agent, or in the name of such agent, for the principal, shall 
 be considered the deed or contract of such principal." Porter v. A. & K. 
 R. R. Co., xxxYii. 349. 
 
 (b) Parties generally, and their duties. 
 
 9. One claiming title under a deed from a corporation, executed by its agent, 
 must prove that the corporation, by a legal vote, had authorized such person 
 to make the conveyance. Miller v. Ewer, xxvii. 509. 
 
 10. A husband may lawfully convey the freehold, which he takes by his 
 marriage, in the lands of his wife. Trash v. Patterson, xxix. 499. 
 
 11. A creditor to whom the debtor has made a conveyance of land, abso- 
 lute in its terms, is not bound to account for its value toward the debt, if, at 
 the time of the conveyance, it was intended as collateral security. Whitney 
 V. Batchelder, xxxii. 313. 
 
 12. The common law, that a disseizee of land cannot convey, has been 
 abrogated by R. S. of 1841, c. 91, § 1 ; by which provision, a disseizee may 
 convey, if he have a right of entry. Pratt v. Pierce, xxxvi. 448. Buck v. 
 Balcoch, XXXVI. 491. 
 
 II. EXECUTION, DELIVERY AND ACCEPTANCE. 
 
 13. To constitute an effective delivery of a deed, it must have come into 
 the possession of the grantee, with the consent of the grantor as a convey- 
 ance. Rhodes v. Gardiner, xxx. 110. 
 
 14. If a deed he placed in the hands of the grantee, not for the purpose of 
 having it take efiect as a deed, but for some other purpose, it is no delivery, 
 and no title will be conveyed. Rhodes v. Gardiner, xxx. 110. 
 
 15. A committee of three was appointed by a school district to procure a 
 deed of land. The deed was made and deposited with one of the committee, 
 with directions to deliver it upon payment of a certain sum of money. The 
 district received the deed, and voted to accept it, but made no payment : — 
 Seld, the deed was not delivered. Rhodes v. Gardiner, xxx. 110. 
 
 16. The day upon which a deed is delivered, may be properly referred to, 
 as the day of its date. Oatman v. Walher, xxxiii. 67. 
 
 21 
 
162 DEED. 
 
 17. The date of a deed is not intended to express the hour and minute, 
 when it was executed; but rather the time of its delivery. Oatman v. 
 Walker, xxxiii. 67. 
 
 18. In order to transfer the title of land by deed, it is essential that the 
 deed be expressly or impliedly accepted by the grantee. Dwinal v. Holmes, 
 XXXIII. 172. 
 
 19. The tender of a deed, and continued readiness to deliver it, by one 
 who had given a bond to convey it, will transfer no title, although the grantee 
 had paid for it, and occupied it nineteen years. Dwinal v. Holmes, xxxiii. 
 172. 
 
 20. A deed has no effect until its delivery. The date is prima facie evi- 
 dence, that it was then delivered ; but the actual time of delivery may be 
 proved by parol. Sweetser v. Lowell, xxxiii. 446. 
 
 21. It may be presumed, notwithstanding the form of words as to the at- 
 testation, that deeds were in fact delivered on the day they were acknowledg- 
 ed, and in such order of time as to make them effectual to carry out the 
 intention of the parties. Loomis v. Pingree, xiiii. 299. 
 
 III. ACKNOWLEDGMENT AND REGISTRATION. 
 
 22. The record of a deed, or deed itself, left in the registry for record, was 
 the only legal notice by registry of the conveyance of real estate, recognized 
 by our statutes, prior to the enactment of the R. 8. of 1841, c. 91, § 25. 
 Stevens v. Bachelder, xxviii. 218. 
 
 23. If, therefore, the deed or levy was left with the register, and he made 
 a certificate thereon, that it had been recorded, and it was then withdrawn 
 and taken from the office by the grantee or creditor before any record thereof 
 was actually made, it furnishes no legal notice to subsequent purchasers or 
 creditors of such conveyance. Stevens v. Bachelder, xxviii. 218. 
 
 24. The record of the return of an officer of a levy of an execution on real 
 estate, without his Signature to the return, is not such a record as the statute 
 requires against subsequent purchasers. Stevens v. Bachelder, xxviii. 218. 
 
 25. R. S. of 1841, c. 91, § 26, has abrogated the law by which implied or 
 constructive notice of a prior unregistered deed would avoid a subsequent 
 one from the same grantor. The grantee, in the subsequent deed, must have 
 " actual notice," of the prior one, otherwise his title is valid. Spofford v. 
 Weston, XXIX. 140. Hanley v. Morse, xxxii. 287. 
 
 26. The registry of a deed, from one stranger to another, does not indicate 
 that the grantor in said deed had a conveyance from the actual owner, no 
 such deed appearing on the record ; nor can any information, derived by the 
 grantee from those who obtained their knowledge from such registry, have 
 such effect. Spofford v. Weston, xxix. 140. 
 
 27. It is for the party relying on an unregistered deed, against a subse- 
 quent purchaser, or attaching creditor, to prove that the latter had actual 
 knowledge or notice of such deed. He is not bound to inquire. Spofford v. 
 
 Weston, XXIX. 140. 
 
 28. Where the declarations of a subsequent purchaser indicate his disbelief 
 that any prior deed had been given by his grantor, although admitting his 
 knowledge of a claim that such deed existed, by those who professed to hold 
 under it, there can arise no presumption that he had actual notice of the ex- 
 istence of such deed. Spofford v. Weston, xxix. 140. 
 
DEED. 163 
 
 29 A bond for a re-conveyance of land, upon the performance of condi- 
 tions' though unrecorded, will be effectual as against the grantor's creditors 
 who attached prior to R. S. of 1841, and who, at the time of the attachment, 
 had notice, either expressed or implied, of such a bond. McLaugMm v. 
 Mepherd, xxxii. 143. 
 
 30. An attaching creditor is chargeable with notice in the same manner 
 and with the same effect, as a subsequent purchaser. McLaughlin v. Shep- 
 herd, XXXII. 143. 
 
 31. Prior to R. S. of 1841, c. 91, § 26, a visible possession of land under 
 a deed, though unrecorded, was constructive notice of title, and equivalent to 
 registration. Hanley v. Morse, xxxii. 287. 
 
 32. This rule of constructive notice is still in force, as to deeds made prior 
 to R. S. of 1841, even against conveyances made since. Tennet, J., dis- 
 senting. Eanley v. Morse, xxxii. 287. 
 
 33. And the possession of the representatives of the grantee of such un- 
 recorded deed, whether as tenants, grantees, or heirs, has the same effect 
 upon a subsequent conveyance, as if he were personally in possession, when 
 such subsequent grant was made. Hanley v. Morse, xxxii. 287. 
 
 34. The deeds of defeasance required to be recorded by R. S. of 1841, c. 
 91, § 27, are such as operate upon the title, and not such as operate only 
 upon covenants, upon which personal actions may be maintained. Littlefield 
 V. Getchell, xxxii. 390. 
 
 35. A deed of land, though not acknowledged or recorded, conveys the 
 title as against the grantor and his heirs. Buck v. Balcock, xxxvi. 491. 
 
 36. By R. S. of 1841, c. 91, before a deed can be recorded, it must be 
 acknowledged before a justice of the peace, and his certificate of that fact 
 indorsed thereon. Brown v. Lunt, xxxvii. 423. 
 
 37. Without this pre-requisite, the record of it is unauthorized, and is not 
 notice of a conveyance of the land. Brown v. Lunt, xxxvii. 423. 
 
 38. But such certificate, if made by a justice of the peace, de facto, merely, 
 is sufficient. Brown v. Lunt, xxxvii. 423. 
 
 39. Where a deed was acknowledged before one who had held commissions 
 of justice of the peace, for a long series of years, but, at the time of such 
 acknowledgment, his last commission had expired, but without his knowl- 
 edge ; and he had constantly and frequently acted as a justice of the peace, 
 after his commission had expired, until after he took said acknowledgment, 
 believing that he was a justice of the peace ; and the parties to the deed well 
 knew that he so acted : — Held, that such acknowledgment was good. Brown 
 v. Lunt, XXXVII. 423. 
 
 40. The official acts of such justice, within the jurisdiction of a justice of 
 the peace de facto, are valid, as they affect third parties, and cannot be in- 
 quired into collaterally. Brown v. Lunt, xxxvii. 423. 
 
 41. Where one, in possession, conveys premises, and declares in his deed 
 that "the said land is under an incumbrance of $200, and interest from 
 September last," and furthermore informs the grantee, that they were under 
 an incumbrance to J. L., which would be payable in September next, and 
 interest: — Held, that this was sufficient notice to give effect, as against said 
 grantee, to the prior unrecorded deed to J. L. Merrill v. Ireland, XL. 569. 
 
 42. And where such grantee, not being in possession, assigned the deed to 
 the demandant, and, in fact, he was acting for him in the negotiation, the de- 
 
164 DEED. 
 
 mandant can claim no rights as against the unrecorded deed. Merrill v. 
 Ireland, XL. 569. 
 
 43. Notice of a prior conveyance should be so express and satisfactory to 
 the party, that it would be a fraud in him subsequently to purchase, attach, 
 or levy upon the land to the prejudice of the first grantee. E. S. of 1841, c. 
 91, § 26, controls the construction, that the possession of the grantee alone, 
 if open, continued and exclusive, would be sufficient inference in law of notice. 
 Porter v. Sevey, xliii. 519. Goodwin v. Cloudman, XLlii. 577. 
 
 44. The evidence, from all the circumstances, must be such as to give the 
 jury reasonable satisfaction, that the second purchaser had notice of the prior 
 deed, before he purchased. Porter v. Sevey, XLiii. 519. Goodwin v. Cloud- 
 man, XLiii. 577. 
 
 IV. WANT OF TITLE, AND ERRORS, IN DEEDS. 
 
 45. Where, upon a purchase of real estate by a quitclaim deed, both parties 
 suppose the title to be good, a failure in the title, of itself, will not entitle 
 the vendee to reclaim the purchase money. Butman v. Huzzey, xxx. 263. 
 Sullen V. Arnold, xxxi. 583. 
 
 46. Relief is not given in equity, even in cases of mistake falling within 
 its rules, when the party seeking it could have discovered the fact which 
 caused the injury, by reasonable diligence. Butman v. Huzzey, xxx. 263. 
 
 47. A deed of land will not be reformed, (upon a bill in equity,) for a mis- 
 take in its boundaries, to the injury of one who has purchased of the grantee 
 in good faith, and without notice of the mistake. Whitman v. Weston, 
 xxx. 285. 
 
 V. VALIDITY AND EFFICACY. 
 
 48. It is not indispensable that the officer's deed, of an equity of redeeming 
 real estate, should be made, executed and delivered on the day of sale. If 
 made so soon afterwards, that the whole proceedings will vest a title in the pur- 
 chaser, the deed and the purchaser's right under it will have relation back and 
 take effect from the time of the sale. Abbott v. Sturtevant, xxx. 40. 
 
 49. Where one holding office, has authority, in the exercise of such office, 
 to convey real estate for the benefit of others, his deed is void, if it purport 
 to have been executed, not in the exercise of that office, but of some other 
 office. Warren v. Stetson, xxx. 231. 
 
 50. Where the selectmen, treasurer and clerk of a town are authorized to 
 convey the ministerial and school lands, it is essential that the clerk, as a 
 distinct branch of the board, should join in the deed. Warren v. Stetson, 
 xxx. 231. 
 
 51. A conveyance of land by an administrator, under a license firom the 
 Probate Court, after the time limited by law for the operation of the license, 
 is void. Chadbourne v. Backliff, xxx. 354. 
 
 52. Where executors of a will have power to sell real estate, coupled with 
 an interest in trust, a conveyance by the survivors, or by those who alone accept 
 the trust, is valid. Put. F. S. v. Fisher, xxx. 523. 
 
 53. A conveyance by a devisee under a foreign wiU, made before the will 
 
DEED. 165 
 
 is filed and recorded in this State, is valid, as Ms title commences upon the 
 death of the testator. Put. F. 8. v. Fisher, xxx. 523. 
 
 54. The obtaining of a conveyance of land, upon a verbal promise that the 
 purchaser would subsequently secure the purchase money by a mortgage, and 
 a refusal afterwards to give such mortgage, do not constitute sufficient ground 
 for enjoining the purchaser from selling the land, unless some fraudulent or 
 deceptive practice was used to obtain the conveyance. Ellsworth v. Starbird, 
 XXXII. 176. 
 
 55. A bargain and sale of a fee-simple estate, to take effect in fuiuro, is 
 inoperative and void. Harden v. Chase, xxxii. 329. 
 
 56. That result, however, is not to be admitted, if it can be preventedby a 
 construction, which will carry into effect the intention of the parties, and that 
 their designs shall not be defeated. Harden v. Chase, xxxii. 329. 
 
 57. A deed, showing that the grantor lived upon the land, and reserving 
 " the use, occupation and control of it, during the lives of the grantor and hia 
 wife, for their support and maintenance," is not void as creating a fee to take 
 effect in futuro. Harden v. Chase, xxxii. 329. 
 
 58. Fraud, in the procurement of a deed of land, can be established only 
 upon proof, that the grantee or his agent performed some act or made some 
 representation which was deceptive or false, knowing it to be so. Larrabee 
 V. Larrabee, xxxiv. 477. 
 
 59. A deed, conveying land, may be valid between the parties to it, with- 
 out consideration. Larrabee v. Larrabee, xxxiv. 477. 
 
 60. An agreement, made by the devisee of the reversion, that he would 
 assent to the disallowance of the will by the Judge of Probate, and would 
 withdraw the testimony already laid before the Judge in support of it, is a 
 sufficient consideration, (if it need any,) for a grant, by an heir at law, of a 
 reversionary interest in land, authorizing the grantee to take possession at the 
 termination of the life estate. Larrabee v. Larrabee, xxxiv. 477. 
 
 61. A conveyance of land to a married woman, in consideration of her 
 promissory note for the purchase money, is without consideration, and, as to 
 the then existing creditors of the grant, void. Howe v. Wildes, xxxiT. 566. 
 Brown V. Lunt, xxxvii. 423. Newbegin v. Langley, xxxix. 200. 
 
 62. As against such creditors, the punctual payment of such note cannot 
 impart any new vitality or strength to such conveyance, Howe v. Wildes, 
 xxxiv. 566. 
 
 63. The common law doctrine, that a disseizee of land cannot convey, has 
 been abrogated byR. S. of 1841, c. 91, § 1; by which, he may convey,. if he 
 have the right of entry. Pratt v. Pierce, xxxvi. 448. Buck \. Babcock, 
 XXXVI. 491. 
 
 64. If the notes, given by a married woman for a conveyance of land to 
 her, be indorsed by her husband, the deed is valid, although the indorsement 
 was after the conveyance, if made in pursuance of an agreement when the 
 deed was executed. Brown v. Lv,nt, xxxvii. 423. 
 
 65. Where C. conveyed to G. land, and G. took the deed for the purpose 
 of obtaining security, for what was due him ; but nothing was paid therefor, 
 and no security surrendered or discharged ; and where the creditors of C. at- 
 tached his real estate, and were informed by G. that he had no claim upon it, 
 and was subsequently appointed and acted as an appraiser for one of the 
 creditors ; and where G. afterwards levied his execution upon the land em- 
 braced m the deed: — Held, that the conveyance was voluntary, and void aa 
 to creditors. Wellington v. Fuller, xxxTili. 61. 
 
166 DEED. 
 
 66. As a general rule, deeds of married women are void. Newhegin v. 
 Langley, xxxix. 200. 
 
 67. A deed to a married woman and her note secured by a mortgage of the 
 same premises to secure its payment, are void, together with the mortgage. 
 Newhegin v. Langley, xxxix. 200. 
 
 68. Where several join in a deed, by signing, sealing and delivering the 
 same, a subsequent insertion in the body of the deed, of the names of two 
 who had executed it, but who were not present at the delivery, without the 
 knowledge and consent of the parties, will not affect its validity as to those 
 whose names were in the body of the deed as grantors. Bird v. Bird, xl. 398. 
 
 69. Whether any title from persons whose names are thus inserted, is 
 passed; quere. Bird y. Bird, 'XJj. 398. 
 
 70. To invalidate a deed at common law, on the ground of insanity of the 
 grantor, an entire loss of the understanding must be shown. While a man is 
 legally compos mentis, though of weak mind, he has the right of disposing of 
 
 ' his property ; and neither courts of law nor of equity will inquire into his wis- 
 dom, or want of it, in the disposition of it. Hill v. Nash, xli. 585. 
 
 VI. CONSTRUCTION. 
 
 (a) Conditions, Reservations and Exceptions. 
 
 (b) Boundaries. 
 
 (c) Generally. 
 
 (a) Conditions, Beservations and Exceptions, 
 
 71. A conveyance of land upon condition, that unless the grantee should 
 make certain payments, the deed shaU be " void, so far as to make good any 
 non-fulfilment of said conditions," will entitle the grantor to recover posses- 
 sion, after a breach of the condition, and to hold the property as a pledge or 
 mortgage, until the condition be performed. Fisk v. Chandler, xxx. 79. 
 
 72. A deed, showing that the bargainor lived upon the land, and reserving 
 the " use, occupation and control of it, during the lives of the grantor and 
 his wife, for their support and maintenance," intends that the reservation 
 should be restricted to the measure of relief which the grantor and wife might 
 actually need for their support and maintenance. Marden v. Chase, xxxil. 
 329. 
 
 73. The following words, inserted at the close of the covenants in a war- 
 ranty deed : — " Provided that the grantor shall pay to" A. " a note" [describ- 
 ed] " signed by the grantee," are unmeaning and inoperative. Abbott v. 
 Pike, XXXIII. 204. 
 
 74. In a conve3'ance of house lots, on a street, not yet made or accepted, 
 but existing only upon a plan, the words with a "reserve of the street," may 
 be construed as words of grant, when such was the obvious meaning of the 
 parties. Palmer v. Dougherty, xxxiii. 502. 
 
 75. A right of re-entry for a breach of condition in a conveyance of land, 
 pertains only to the grantor and his legal representatives. It is not included 
 among the rights mentioned in R. S. of 1841, c. 94, § 1, and cannot be taken 
 on execution. Bangor v. Warren, xxxiv. 324. 
 
 76. Every exception or reservation in deeds of conveyance are to be con- 
 strued most strictly against the grantor, and most beneficially for the grantee. 
 Wyman v. Farrar, xxxv. 64. 
 
DEED. 167 
 
 77. F. owned a water privilege and dam, by which the wheels of his tan- 
 nery were worked. He conveyed part of the land, with a right to take water 
 for machinery from his dam, reserving " sufficient water, at all times, to work" 
 the tannery wheels, " as now used :" — Held, that he reserved no more water 
 than was actually used by the tannery, at the time when the deed was given, 
 Wyman v. Farrar, xxxt. 64. 
 
 78. A condition in a deed, that a third person shall be allowed to have 
 the use and occupation of it for life, if he shall request it, is a condition sub- 
 sequent. And an entry, after breach of such condition, is indispensable to 
 re-vest the estate. Tollman v. Snow, xxxt. 342. 
 
 79. A restriction may take effect as a reservation, if it do not necessarily 
 deprive the grantee of essential benefits from the grant. Oay v. Walker, 
 xxxvi. 54. 
 
 80. A reservation cannot be regarded as repugnant, if, notwithstanding it, 
 the grantee acquire a valuable interest in the thing granted. Oay v. Walker, 
 XXXVI. 54. 
 
 81. A grant to one, who already owns adjoining land, though it provide that 
 the land granted shall remain " common and unoccupied," may nevertheless 
 convey a valuable interest, by securing a right of passage, and a free flow of 
 light and air to his other land, with an unobstructed prospect from it. Gay 
 \. Walker, xxxvi. 54. 
 
 82. A right of way, reserved in a grant of land, is, by legal intendment, a 
 new thing derived from the land, and is not repugnant to the grant. Oay v. 
 TFaZ/cer, xxxvi. 54. 
 
 83. A free flow of light and air to, or an unobstructed prospect from, the 
 grantor's dwellinghouse, may be secured by a reservation in a grant made by 
 him of adjoining land. Oay v. Walker, xxxvi. 54. 
 
 84. Thus, language requiring the granted land " to be common and unoc- 
 cupied," may take efi'ect as a valid reservation. Gay v. Walker, xxxti. 54. 
 
 85. It is a general rule, in a conveyance of real estate on certain conditions, 
 that any one interested in the conditions or in the land, may perform them. 
 Wilson V. Wilson, xxxviii. 18. 
 
 86. A condition of a grant of land, that the grantee shall maintain and 
 support in a comfortable manner the persons therein named, charges no per- 
 sonal trust upon him, and the support may' be furnished by others. Wilson v. 
 Wilson, XXXVIII. 18. 
 
 87. In the deed of the Land Agent was this reservation: — "Reserving, 
 however, to actual settlers thereon, the right to perfect their titles to such 
 
 lands in the same manner as if this conveyance had not been made :" Held, 
 
 that such reservation was designed only for those who had contracts in writing 
 by which titles could be perfected. Rogers v. McPheters, xi. 114. 
 
 88. A manufacturing corporation conveyed certain property to A., " except- 
 ing and reserving the right, at all times, to take and use water sufiicient to 
 drive the factory and machinery attached," &c. Afterwards, the corporation 
 conveyed to B., certain other real estate, with their factory, machinery &c 
 m which conveyance, A. joined by separate deed. A. had attached, to the 
 factory flume, spouts through which he drew water to run his own mills, which 
 B. cut off: — Held, that the reservation in the deed to A., of the right " at 
 all times, to take and use water sufficient to di-ive the factory and the 
 machmery attached," as between the parties thereto, is as effectual' to secure 
 to the company the right reserved, together with the easement and servitude. 
 
168 DEED. 
 
 so as to charge the lands of A., as by a deed from the owner of the land to 
 be charged, granting the same as appurtenant to other estate of the grantee. 
 And especially when A. himself conveys by his own deed the whole interest 
 reserved. Hammond v. IFbodman, xLi. 177. 
 
 89. And if the attachment of spouts to the factory flume, disturbed the 
 right of B. " at all times, to take and use water sufficient to drive the facto- 
 ry," &c., then he had authority to cut them off. Hammond v. Woodman, 
 XLi. 177. 
 
 90. A reservation in a deed is for the benefit of the grantor and his succes- 
 sors, and not for that of persons claiming title to property not conveyed by 
 deed, and derived from other sources. Oay v. Walker, xxxvi. 54. Moul- 
 ton V. Faught, xli. 298. 
 
 91. An exception in a deed is always a part of the thing granted and of a 
 thing in being. Winthrop v. Fairbanks, xli. 307. State v. Wilson, xlii. 9. 
 Brown V. Allen, xliii. 590. 
 
 92. A reservation is of a thing not in being, but is newly created out of 
 lands and tenements demised. Gay v. Walker, xxxvi. 54. Winthrop v. 
 Fairbanks, xli. 307. State v. Wilson, xlii. 9. 
 
 93. But exception and reservation have often been used in4iscriminately, 
 and the difference between them is so obscure in many cases, that it has not 
 been observed. That, which in terms, is a reservation in a deed, is often con- 
 strued to be a good exception, in order that the object designed to be secured 
 may hot be lost. Winthrop v. Fairbanks, xli. 307. State v. Wilson, 
 xlii. 9. 
 
 94. When a reservation is construed to be an exception, no words of in- 
 heritance are necessary, in order that the rights reserved or excepted may go 
 to the heirs or assigns of the grantor. Winthrop v. Fairbanks, xli. 307. 
 Smith V. Ladd, xli. 314. 
 
 95. The words, "reserving forever, for myself, the privilege of passing 
 with teams, &c., across the same in suitable places, to land I own to the 
 south of the premises," confer the benefit of an exception in favor of the 
 grantor, his heirs and assigns, as occupants of the remaining lands belonging 
 to him, " south of the premises,'' the privilege reserved being appurtenant to 
 such lands. Winthrop v. Fairbanks, xli. 307. 
 
 96. In two deeds, made at different periods to one grantee, the following 
 reservations were included, viz. : — In the first deed, " I do reserve a driftway 
 from the county road, on to the east end of said lot, &c., and another drift- 
 way on to the west end of said lot, where it will best convene me ;" and in 
 the second deed, " I do reserve a county road across, &c., and a driftwayfrom 
 that county road to get on to the west end of said lot, in the most convenient 
 place to accommodate me," &c. : — Held, — 
 
 That the reservation in each deed should be treated as an exception, and as 
 appurtenant to that portion of the lot remaining to the grantor ; and — 
 
 The right of way thus reserved was not limited to foot passengers, but ex- 
 tended to passage for teams and all such uses as might be convenient in the 
 occupa'^ion and improvement of the land. Smith v. Ladd, xli. 314. 
 
 98. A way had been laid out and used by the public for nearly twenty 
 years, across the land of A., when he conveyed it to B. After the descrip- 
 tion in his deed, is the following language : — " reserving to the public the use 
 of the way laid across the same, from the county road to the river :" — Held, 
 that this saving clause applied to " the way" then in existence, and should be 
 treated as an exception. State v. Wilson, xlii. 9. 
 
DEED. 169 
 
 99 A deed conveying the grantor's rigM, title, interest and estate, and ex- 
 cepting therefrom certain public lots, and two parcels, of a given number of 
 acres, each parcel under mortgage to different individuals, conveys the inter- 
 est in the grantors to the lands mortgaged, and also whatever right they had 
 in the public lots ; the exception being only an exception as to all legal in- 
 cumbrances. Loomis V. Pingree, XLlli. 299. 
 
 (b) Boundaries. 
 
 100. Where land is described as containing two and an half acres of salt 
 marsh, and as being within the following bounds, beginning at a corner by the 
 beach, and running by a given line to a creek, and by the creek to a certain 
 marsh, and then by the marsh to a ditch, and then by the ditch to the beach, 
 and by the beach to the place begun at; the land granted adjoins the land 
 washed by the waves of the sea, although the quantity of land within the 
 boundaries may exceed that named in the deed, and may not be wholly salt 
 marsh, and although the ditch may not extend the whole distance to the beach. 
 LiUlefield v. Littlefield, xxviii. 180. 
 
 101. If fixed and permanent monuments are given for the boundary of land, 
 whatever the kind or quality is described to be, such monuments must have 
 the controlling effect. Littlefield v. Littlefield, xxviii. 180. Eaynes v. 
 Young, xxxvi. 557. Emery v. Foiuler, xxxviii. 99. Chandler v. McGard, 
 xxxviii. 564. Melcher v. Merryman, xtl. 601. 
 
 , 102. The extent of line, described as running from a known bound, a 
 specified number of rods, to a stake, is to be ascertained, in the absence of all 
 satisfactory proof of the position of that stake in the earth, by measuring, 
 from the known boundary, the number of rods named in the deed. Lincoln 
 V. Edgecorab, xxviii. 275. 
 
 103. "Where the same grantor conveys to each of two persons, a lot of land, 
 limiting each to a certain number of rods from opposite known bounds, run- 
 ning in a direction to meet, if extended far enough ; and by admeasurement 
 the lots do not adjoin, when it appears from the same deeds that it was the 
 intention that they should ; a rule should be applied, which will divide the 
 surplus, over the admeasurement named in the deeds, ascertained to exist, by 
 actual admeasurement upon the earth, between the grantees, in proportion to 
 the length of their respective lines as stated in their deeds. Lincoln v. Edge- 
 conib, XXVIII. 275. 
 
 104. Certain upland was conveyed adjoining easterly upon a river where 
 the tide ebbed and flowed, one of the side lines running at right angles with 
 the river, and the other so as to leave the end toward the river of less extent 
 than at the other end, the bank of the river, at that place, being convex, — 
 " together with all the flats and water privileges adjoining to, being at and 
 having the. width of the easterly end of the said land, as bounded by the river 
 aforesaid ;" the extent and position of the flats are to be determined by draw- 
 ing a straight line from the south-east and north-east corners of the land at 
 high water mark, and extending lines from the ends of that line and at right 
 angles with it from high to low water mark. Ken. F. Go. v. Bradstreet, 
 xxviii. 374. 
 
 105. Where a plan is made intending to delineate a previous survey, and 
 there is a variance between the survey and the plan, and a conveyance is 
 made, containing a reference to the plan, the grantee wiU hold according to 
 the survey. W^lliams v. Spaulding, xxix. 112. 
 
 22 
 
1 70 DEED. 
 
 106. Where a tract of land is bounded "partly on a stream, as the said 
 lot was surveyed by L. L., reference being had to the plan," and the plan 
 shows a straight line along the stream, but crossing the stream at a curvature, 
 and embracing land on the other side, and within the curvature of the stream ; 
 and the lines named in the deed do not entirely surround the tract ; but the 
 straight line does : — Held, that the straight line is the true boundary. Eaton 
 V. Knapp, XXIX. 120. 
 
 107. Where land is conveyed according to a plan, to which reference is 
 made in the conveyance, it becomes a part of it ; and if the plan bounds the 
 lot by a fresh water stream, the lot extends to the centre of the stream. Lin- 
 coln V. Wilder, xxix. 169. Pike v. Munroe, xxxvi. 309. 
 
 108. Where two monuments are referred to in a deed, incompatible with 
 each other, that which is the more certain and the more prominent must pre- 
 vail over the other. Lincoln v. Wilder, xxix. 169. 
 
 109. Thus, where the shore and a plan are referred to, and are incompatible, 
 the plan will be considered the more certain, and will control. Lincoln v. 
 Wilder, xxix. 169. 
 
 110. A tract was wider at that end bounded on a river, than on the other. 
 The north half was conveyed, separated from the other half by a line begin- 
 ning at the river and running to the back end of the lot, " holding its width 
 equally alike," the whole length of the farm: — Held, that the grantee was 
 entitled to a strip of equal width throughout ; and that its width, at the river, 
 must be so much less than one-half the width at that end as to give to each 
 of the parties an equal number of acres. Patterson v. Trash, xxx. 28, 
 
 111. In a conveyance of land, bounded on a fresh water pond, which had 
 been permanently enlarged by means of a dam at its mouth, the title extends to 
 the low water mark of the pond, in its enlarged state. Wood v. Kelley, 
 xxx. 47. 
 
 112. If land, lying between certain boundaries, is conveyed to grantees in 
 severalty, by distances, and in different proportions, without intermediate 
 monuments or other means of ascertaining the location, and the distances do 
 not correspond with those named in the deeds, they will hold in proportion to 
 their respective grants, whether there be an excess or deficiency in the dis- 
 tance. Masher v. Berry, xxx. 83. 
 
 113. A deed of land will not be reformed by bill in equity, for a mistake 
 in its boundaries, to the injury of one who has purchased of the grantee in 
 good faith, and without notice of the mistake. Whitman v. Weston, xxx. 
 285. 
 
 114. A lot of land was included in a deed to defendant's grantor, by mis- 
 take in the description of the boundaries, and the defendant purchased the 
 same in good faith and without notice of the mistake : — Held, the equity 
 would not disturb his title, although plaintiff was in possession when defend- 
 ant purchased. Whitman v. Weston, xxx. 285. 
 
 115. A grantor of land, bounded on a street, according to a plan, retains 
 the fee in the soil upon which the street is represented in the plan. Suther- 
 land v. Jackson, xxx. 462. Sutherland v. Jackson, xxxii. 80. Bangor 
 
 House v. Brown, xxxiii. 309. 
 
 116. The north line of B. and D.'s land is one hundred rods and six inches 
 north from the public road. A levy, described to lie north of B. and D. s 
 land, and commencing at a tree eighty-five and one-half rods north from the 
 road ; thence northwardly seventy-two and one-half rods ; thence east four 
 
DEED. 171 
 
 rods- thence south seventy-two ■ and one-half rods to the north-east corner of 
 B. a^dD.'sland; thence west on their north line to said teee; which tree 
 was not iouni: — Eeld, that the south line of the levy is at B. and U. s north 
 line. Alden v. Noonen, xxxii. 113. 
 
 117 In determining the boundaries of land conveyed by deed, if any of 
 the abuttals or, calls of the deed are found, they cannot be disregarded, al- 
 though the others may not be found. Talbot v. Copeland, xxxii. 251. 
 
 118. Those which are found, if not inconsistent with each other, are ele- 
 ments in the rights of the parties, and cannot be departed from to substitute 
 courses and distances. Talbot v. Copeland, xxxii. 251. 
 
 119. If a proprietor of land grant the right of a private way across it, of 
 a specified direction and width, and afterwards convey the land on one side of 
 such way, bounding it by the line of the way;— ii! seems, the grantee of such 
 land takes no fee in any part of the land covered by the way ; nor, by virtue 
 of his deed, does he take any easement or right of way, in such land, by ne- 
 cessity. State V. Clements, xxxii. 279. 
 
 120. A true and certain description in a grant of land, is not invalidated 
 by the insertion of a falsity in the description, when, by rejecting the errone- 
 ous part, the conveyance can be supported, according to the intention of the 
 parties. Abbott v. Pike, xxxiii. 204. 
 
 121. A deed, by its description, conveyed lot No. 3, " being the same farm 
 that P. "W. now lives on." In fact, the farm occupied by P. W. was on lot 
 No. 1 : — Reld, that the description by the number of the lot, was less cer- 
 tain than that by the word farm ; and that the farm, (and not No. 3,) passed 
 by the deed. Abbott v. Fike, xxxiii. 204. 
 
 122. When land is conveyed as bounded by a street, represented on a plan, 
 but not made, the soil of the contemplated street, though owned by the gran- 
 tor, does not pass. Palmer v. Dougherty, xxxiii. 502. 
 
 123. But if he bound the grant by a highway, generally, it will carry the 
 fee ad medium filum vice, if his title extended so far. Palmer v. Dougherty, 
 XXXIII. 502. Hunt V. Bich, xxxviii. 195. 
 
 124. The purchaser of upland, adjoining navigable tide waters, takes the 
 shore to low water mark,, where the ebb and flow of the sea does not extend 
 more than one hundred rods. Winslow v. Patten, xxxiv. 25. Pike v. 
 Munroe, xxxvi. 309. 
 
 125. A grantor conveyed a square of land, bounded by an arm of the sea, 
 " reserving a street through the square, [of a described width and location,] 
 together with the flats, viz. ; " aU my right to the same, in front of said square, 
 to the channel:" — Held, that the flats were not included in the reservation, 
 but passed by the deed. Winslow v. Patten, xxxiv. 25. 
 
 126. Where one purchased land, bounded on the east by land of L., and 
 on the south by land of D., and the land of L. extended a part only of the 
 distance to D's land, but the course of L's line, if continued, would strike 
 D's land: — Held, that the land is bounded on that continuation-line. Bicker 
 V. Barry, xxxit. 116. 
 
 127. If boundary descriptions disagree, and one of them is expressed as 
 being certain and the other as uncertain, the former must prevail, in the ab- 
 sence of controlling circumstances. Bicker v. Barry, xxxiv. 116. 
 
 128. In the construction of such a deed, however, a long occupation, pur- 
 suant to the uncertainly expressed boundary, would have much influence. 
 Bicker v. Barry, xxxiT. 116. 
 
1 72 DEED. 
 
 129. In the construction of deeds, the course is not always to be regarded 
 as more satisfactory than the distance. Richer v. Barry, xxxiv. 116. 
 
 130. "Where land is conveyed, to be afterwards located within specified 
 limits, the first rightful location on the earth, determines forever its bounds. 
 Farrar v. Cooper, xxxiv. 394. Hall v. Pickering, XL. 548. 
 
 131. Though the lease of a factory, usually moved by water power, should 
 not contain, in express terms, a grant of the water power, such grant would 
 result by implication of law. But it will not extend beyond the lessors' 
 rights. Wyman v. Farrar, xxxv. 64. 
 
 132. A conveyance of land, bounding it on a fresh water stream, extends 
 to the centre or thread of the main channel of the stream. Filce v. Munroe, 
 XXXVI. 309. Rohinson v. White, xlii. 209. 
 
 133. A grant conveying land, bounded at a monument, at high water mark, 
 thence running down river to another monument, being a short distance hack 
 from the edge of the bank ; and extending back between parallel lines from 
 said river, far enough to embrace a specified number of acres, conveys, not 
 only the upland but the flats to the distance of one hundred rods, if they 
 extend so far. Pihe v. Munroe, xxxvi. 309. 
 
 134. In the construction of deeds, monuments control courses and dis- 
 tances. Haynes v. Young, xxxvi. 557. Chandler v. McCard, xxxtiii. 
 564. Melcher v. Merryman, xli. 601. Rohinson v. Whke, xlii. 209. 
 
 135. And where a line is described as a monument, the course and distance 
 'given must yield to the line. Haynes v. Young, xxxvi. 557. 
 
 136. A definite boundary by monuments, courses and distances, wiU limit 
 the generality of a term previously used in the deed. Haynes v. Young, 
 XXXVI. 557. 
 
 137. The quantity of land named governs the construction of a deed, in 
 the absence of a reference to monuments, or of other more definite descrip- 
 tion. Pierce v. Faunce, xxxvii. 63. 
 
 138. The terms "more or less," neither limit nor extend the grant; hut 
 are used, in the absence of definite knowledge of the boundaries and extent 
 of the land intended to be conveyed, to exclude a construction, that the 
 quantity named in the conveyance should be conclusive upon the parties. 
 Pierce v. Faunce, xxxvii. 63. 
 
 139. A. conveyed to the tenant one undivided quarter part of a lot of land, 
 which he purchased of B., bounded by certain flats on the east. Fore street 
 on the north. Commercial on the south, and extending westerly, eight rods. 
 Subsequently, they made partition of a strip on Fore street, fifty feet wide, 
 A. taking eighty-four feet on Fore street, and the tenant the remainder, both 
 agreeing that the remainder of the lot should be held in common and undi- 
 vided. Upon that part of the lot held in severalty, five brick stores were 
 erected, one of which was upon the land of the tenant, who afterwa(ds 
 acquired a title to the store standing in west corner of A.'s part, and an 
 undivided half of the store in the east corner of the same. Still later, the 
 tenant obtained another undivided quarter of the common estate, upon which 
 were a distillery and two stores, when A. conveyed to the tenant " one half 
 part in common and undivided of a certain lot, &c., and one moiety of the 
 buildings, consisting of a distillery and two stores, situated on the southerly 
 side of Fore street, being part of same land I purchased of B.," referring to 
 his deed: — Held, that the deed conveyed a moiety of the estate held in 
 common and undivided only, and did not include any portion of the strip, of 
 which partition had been made. Jordan v. Muzzey, xxxyii. 376. 
 
DEED. 173 
 
 140. Orie portion of the Deering wharf, so called, was owned by N. D. & 
 J. H. I. and others, and the other portion by P. & J., on which the owners 
 erected stores. The owners, and other associates, proposed to build a wharf 
 to the channel, divide it into shares, and widen the Deering wharf; and that 
 the owners should keep the new part open, and that width be continued to 
 the end of said wharf for a passage-way forever. The associates purchased 
 the flats on which to build, and for a dock, to be held by them as tenants Ln 
 common. The owners covenanted with the associates, to enlarge their wharf 
 to the width specified, each owner building according to his ownership. The 
 deed of D., I. and others, of certain flats to the associates, covenanted, that 
 so much of the Deering wharf as they widened and built, " should remain 
 open, and to be used as a free passage and way for all the said associates and 
 their assigns to pass to, from and upon the intended wharf and transact any 
 business in common forever." The deed of P. & J. to the associates, con- 
 tains this clause, " to the end that the said part of said wharf now owned by 
 us, may not obstruct or impede the free passage to, from and upon the said 
 intended wharf, we covenant that" (the widened part of Deering's wharf,) 
 " shall remain open as a free passage and way for them, their heirs and 
 assigns, to pass to and from and upon the wharf intended to be built fi-om 
 the end of Deering's wharf as aforesaid, and transact any business forever." 
 The wharf was built. In an action to recover wharfage ; — Held, — 
 
 1st. That the Deering wharf remained the property, in severalty, of the 
 original owners or their grantees : — 
 
 2d. That the part added thereto, by widening, remained for use as a wharf 
 and passage-way, and was an estate in common with the associates: — and — 
 
 3d. That the proprietors of the common estate were authorized to collect 
 all wharfage accruing from any portion of the wharf. Prop'rs of Long Wharf 
 V. Palmer, xxxvii. 379. 
 
 141. Where A. made a voluntary conveyance to G., which was void as to 
 creditors, and the demandant derived his title to a portion of the premises 
 through P. who had made a levy thereon, and, subsequently, G. levied upon 
 all that part of A.'s land not levied upon by P., and then conveyed to the 
 tenant, bounding him by the land of the demandant ;— ^eZti, that G. did 
 not intend to convey any land not embraced in his levy. Wellington v. 
 Fuller, xxxYiii. 61. 
 
 142. Whether monuments are erected upon the face of the earth, by agree- 
 ment of parties, and a deed is given intended to conform thereto, or whether 
 they are subsequently erected with intent to conform to a deed already given, 
 those monuments must control the quantity of land named in the deed. Emery 
 V. Fowler, XXXYIII. 99. 
 
 143. Where a lot of land is conveyed, within which is fenced a portion of 
 the street, and the monument caUed for by the deed is described as standing 
 m the Ime of the street, there being no uncertainty in the location of the 
 monument or street, which is another monument referred to, and no reference 
 made to the fence, no part of the street is embraced in the deed. Walker v 
 Pearson, XL. 152. ■ ' 
 
 144. A deed purporting to convey all the grantors' real estate in a certain 
 town named, and particularly all that belongs to them as the representatives 
 ot a certam person named, deceased, is effectual to pass their title to any 
 lands there situated. Bird v. Bird, xl. 398. 
 
 ^^ 145. A deed describing the land conveyed therein by numbers and range, 
 according to the new survey," will not authorize the use of &plan, proved 
 
174 DEED. 
 
 to have been made according to what was called the new survey, to establish 
 the extent of the lots so conveyed. Ghesley v. Holmes, XL. 536. 
 
 146. Where the limits, by numbers only, are thus left uncertain, reference 
 must be had to other parts of the deed. And where a part of the description 
 is, " being the farm now occupied by the S. B., in said O.," such description 
 is more certain and will determine the extent of the lots conveyed. Ghesley 
 V. Holmes, xl. 536. 
 
 147. A company was allowed five years to construct their railroad, by 
 making and filing their location, &c., on or before a certain time. After they 
 had made a survey, and staked out the track across plaintifi"s land, but he- 
 fore it was accepted and filed, the company purchased of him six rods in 
 width of his land, and took a deed, describing it as " covered by the location 
 of their railroad, or that may finally be covered by such location." After- 
 wards, the Legislature extended the time for filing their location, and they 
 made a diflerent one across the plaintifi"'s land, on which the road was finally 
 constructed : — Held, that the company obtained no rights in such new loca- 
 tion under the deed. Hall v. Pickering, XL. 548. 
 
 148. A. purchased two lots of land by one of two plans which represented 
 them differently, and then sold one of the lots to B. by the other plan: — 
 Held, that the latter plan must govern in ascertaining B.'s rights. Wellington 
 V. Murdough, xli. 281. 
 
 149. An original location, if shown to have been run and marked, is to be 
 ascertained by tracing it from monuments established, or places where monu- 
 ments were proved to have been placed or found in such location, in direct 
 
 ■ lines, whether such monuments were more or less distant from each other. 
 Melcher v. Merryman, XLI. 601. 
 
 150. A person's possession is presumed to be co-extensive with his grant, 
 where there is no adverse possession. Melcher v. Merryman, XLi. 601. 
 
 151. It seems, that land bounded on a natural lake or pond, extends only to 
 the margin ; aliter, if the pond be artificial. Bobinson v. White, xlii. 209. 
 
 152. A deed described the boundary of certain land as running " to the 
 pond to a stake and stones :" — Held, that this restricted the grantee to the 
 " stake and stones," if they or their original location could be ascertained; if 
 not, his grant extended " to the pond." Bobinson v. White, xlii. 209. 
 
 (c) Generally. 
 
 153. If two grantors make a joint deed of a certain tract of land, the land 
 may pass by such deed, if owned by either of the grantors, when such can be 
 seen to have been the intention of the parties. Vose v. Bradstreet, xxxvil. 
 156. 
 
 154. When buildings are conveyed, and are described as standing on a lot 
 of land, it is usually apparent that it was not the intention to convey the land. 
 In such case, the superstructure only passes. Derby v. Jones, xxvii. 357. 
 
 155. When it is apparent that the language is used only to describe the 
 place where they are situated, as if the deed had stated that they stood on a 
 certain square or street, no inference can be justly drawn, that it was not the 
 intention that the land on which they stand, but not the lot named, should 
 pass by the conveyance. Derby v. Jones, xxvii. 357. 
 
 156. By a devise or grant of a messuage or house, the land on which it 
 
DEED. 175 
 
 Stands will pass with it, unless there be something to indicate that such was 
 not the intention. Derby v. Jones, xxtii. 357. 
 
 157. But where the facts and circumstances clearly indicate that the inten- 
 tion of the parties was that the land should not pass, it is otherwise. Derby 
 V. Jones, xxvii. 357. 
 
 158. The conveyance of a portion of the common estate by metes and 
 bounds, by a tenant in common, will not necessarily be inoperative upon the 
 rights of himself or others. The law will give effect to such conveyance, so 
 far as it may do so consistently with the preservation of the entire rights of 
 the co-tenant, and no further. If the estate so conveyed, or any part of it, 
 shall be assigned upon partition of the premises, to the right of the grantor 
 or his assignee, the conveyance embracing it may operate and convey the title 
 from the grantor to the grantee. Sautter v. Porter, xxvil. 405. 
 
 159. Such a conveyance cannot operate contrary to the expressed declara- 
 tions and intentions of the parties, to convey an estate in common instead of 
 an estate in severalty. Sautter v. Porter, xxvii. 405. 
 
 160. The law will give such a construction to a deed, that it may convey, 
 if possible, by any legal mode, the estate intended to be conveyed ; but it 
 will not permit such a construction, as would convey a different estate from 
 that intended. Sautter v. Porter, xxvii. 405. Siggins v. Wasgatt, xxxiv. 
 305. 
 
 161. Deeds, which have been executed between the same parties, at the 
 same time, cannot be construed together, so that one should be limited by 
 the provisions contained in the other, unless they relate to the same subject 
 matter. Allen v. Parker, xxvii. 531. 
 
 162. The word " beach," must be deemed to designate land washed by 
 the sea and its waves ; and to be sjTionymous with shore. Littlefield v. 
 Littlefield, xxvin. 180. ^ 
 
 163. The intention of the grantor, if it can be ascertained, is to be carried 
 into efifeot. Lincoln v. Wilder, xxix. 169. 
 
 164. But if the expressions of a deed are contradictory, and it cannot be 
 known what is the true meaning, the deed is to be construed most favorably 
 for the grantee. Lincoln v. Wilder, xxix. 169. Winslow v. Patten, xxxit. 
 25. Pike v. Munroe, xxxvi. 309. Pierce v. Faunae, xxxvii. 63. Jordan 
 V. Mayo, xii. 552. 
 
 165. "Where monuments are referred to in a deed, incompatible with each 
 other, that which is the more certain and the more prominent must control. 
 Lincoln v. Wilder, xxix. 169. 
 
 166. Apian is more certain than the shore. Lincoln v. Wilder xxix 
 169. 
 
 167. Where one has made a conveyance of land, by a deed containing a 
 covenant of warranty, a title, subsequently acquired, will enure and be trans- 
 ferred to the grantee. Pike v. Galvin, xxix. 183. Cracker v. Pierce 
 XXXI. 177. ' 
 
 168. But if the deed contain no covenant of warranty, it is otherwise. 
 Pxke V. Qalvin, xxix. 183. 
 
 169. Where an estate is conveyed, all the rents and income, which have 
 accumulated, and which have not been so disconnected with it as to become 
 personal property, wiU pass by the conveyance. Winslow v. Band, xxix. 
 
 170. Thus, where a dividend upon the share in a wharf had been declared, 
 
176 DEED. 
 
 a month after the conveyance, and it did not appear that the earnings had 
 been disconnected -with the estate, before the conveyance, as rent in arrear, 
 or otherwise, such dividend passed with the conveyance. Winslow v. Band, 
 XXIX. 362. 
 
 171. An absolute deed, which purports to be given for a good and valuable 
 consideration, carries with it the presumption, that the grantee holds the land 
 conveyed to his own use. Philbrook v. Delano, xxix. 410. 
 
 172. Where A. and the wife of B., are co-tenants of land, division deeds, 
 made by A. -and B., do not destroy the co-tenancy. Trash v. Patterson, 
 XXIX. 499. 
 
 173. Under R. S. of 1841, a husband obtained by his marriage only a 
 freehold estate in the Ifernds then o^vned by his wife ; and a quitclaim deed of 
 such lands, by the husband, would convey the sole use and occupancy of the 
 same during his life. Trash v. Patterson, xxix. 499. 
 
 174. Where one conveys land wholly surrounded by his own, or inaccessi- 
 ble except through his own land, he is considered as granting, by implication, 
 a right of way to and from it. Trash v. Patterson, xxix. 499. 
 
 175. One claiming under a conveyance of an equity of redemption by an 
 officer, does not hold by a seizin adverse to that of the debtor. Ahbott v. 
 Sturtevant, xxx. 40. 
 
 176. If a proprietor in a tract of undivided land convey any number of 
 acres thereof in common and undivided, the grantee is entitled to that num- 
 ber of acres of average quality and value with the rest of the tract. Dyer v. 
 Lowell, xxx. 217. 
 
 177. If one, by deed of warranty, grant land to which he then had no title, 
 and afterwards acquired a title, it enures, eo instanti, to the benefit of such 
 grantee, or the one, if any, to whom the latter, prior to such acquisition of 
 the title, may have conveyed it, with like covenants of warranty. Croclcer v. 
 Pierce, xxxi. 177. 
 
 178. Such a conveyance, in its effect, has priority to one, made to another 
 person, after the title vested in the grantor. Crocker v. Pierce, xxxi. 
 177. 
 
 179. To constitute several conveyances parts of the same transaction, it is 
 ■ not necessary that the deeds bear the same date ; nor that the parties should 
 
 be the same persons in each of the deeds ; but it will be sufficient if the deeds 
 are delivered at the same time to accomplish the agreed purpose. Gammon 
 V. Freeman, xxxi. 243. 
 
 180. A debtor, by whom a conveyance, absolute in its terms, has been 
 made to his creditor, cannot sustain it as a payment, when it was intended to 
 operate merely as collateral security. Whitney v. Batchelder, xxxii. 313. 
 
 181. An unsealed instrument, in form of a deed of conveyance of land, is 
 not a deed. Manning v. Laioree, xxxiii. 343. 
 
 182. A deed, "demising and granting" land to A. B., "his heirs and as- 
 signs," with habendum for his natural life, will be held to convey a life estate 
 only, if, from other parts of the deed, it appears that such was the intent of 
 the parties. Eiggins v. WasgaM, xxxiv. 305. 
 
 183. A conveyance of " the use of land forever," is equivalent to a convey- 
 ance of the land. Farrar v. Cooper, xxxiv. 394. 
 
 184. In a deed, granting a part of a mill and of a mill site, within specified 
 boundaries, an authorization to the grantee, in concurrence with the other 
 part owners, to remove the mill and maintain it at any other spot within the 
 
DEED. 177 
 
 boundaries, does not limit the grant to that of an easement only. Farrar v. 
 Coo'per, xxxiY. 394. , t, ., 
 
 185 A deed of land in trust, for the purpose of making sales, though it 
 contain no words of inheritance, wiU convey a fee ; and such a construction 
 will be given, whenever it is necessary for effectuating the purposes ol the 
 trust. North v. PUlbrooh, xxxiv. 532. 
 
 186 The legal rule is, to give effect to the intention of the parties, if prac- 
 ticable", when no principle of law is thereby violated. Pilce v. Munroe, 
 xxxYi. 309. 
 
 187. Such intention is to be ascertained by taking into consideration all 
 the provisions of the dped, as well as the situation of the parties to it. Pike 
 V. Munroe, xxxvi. 309. Prop'rs Long Wharf v. Palmer, xxxvii. 379. 
 
 188. Whatever, in a conveyance, is expressly granted, cannot be diminish- 
 ed by subsequent restrictions. But general or doubtful clauses may be ex- 
 plained by subsequent words, or clauses, not repugnant to the express grant. 
 Pike v. Munroe, xxxvi. 309. 
 
 189. The grant of a water privilege cannot be modified by any of the rules 
 of construction, where the intention of the parties is clearly expressed in the 
 deed. Beshon v. Porter, xxxviii. 289. 
 
 190. A grant of a water privilege, for a specific purpose, will restrict the 
 grantee, or those claiming under him, to its use for that purpose alone. JDe- 
 shon V. Porter, xxxviii. 289. 
 
 191. A provision in the grant of a water power, that the plaintiff was to 
 keep in repair a specified proportion of the dam, cannot restrict him to the 
 use of that proportion of the water, such construction being repugnant to the 
 language used in the grant. Deshon v. Porter, xxxviii. 289. 
 
 192. A deed of a saw-mill, the sills of a part of which rest upon another 
 mill owned by the same grantors, transfers to the grantee, the right to con- 
 tinue that connection during the existence of his mill, and while such con- 
 necting timbers last. Jordan v. Otis, xxxviii. 429. 
 
 193. Whether any title is passed by merely signing, sealing and delivering 
 a deed, without the insertion of a name as grantor, in the body of the deed, 
 quere. Bird v. Bird, xl. 398. 
 
 194. The grant of a principal thing carries with it all that is necessary for 
 the beneficial enjoyment of the grant, which the grantor can convey. Ham- 
 mond V. Woodman, xli. 177. 
 
 195. Where the grantor conveyed, by deed of warranty, " all the fishing 
 rights, rights to the ' sand,' and all useful things that may drift upon the 
 beach ;" and the deed also contained a description of the land that constitut- 
 ed the beach, and words of inheritance ; — Held, that " sand" meant " land," 
 and the deed conveyed the fee. Spinney v. Marr, xli. 352. 
 
 196. The grant, by the owner of the whole stream of water, sufficient for 
 a given purpose, precludes the grantor and his assigns from dlminishiho- or 
 defeating, in any way, what he has thus conveyed. Jordan v. Mayo, xli. 
 552. 
 
 197. The owner of the whole stream, with the dam and different erections 
 thereon, conveyed certain portions of the premises, " with the privilege of 
 drawing water from the flume connected with said building, sufficient for all 
 the purposes of clothing and carding, and when there shall not be sufficient 
 water for all the mills erected on said flume and privilege," the property thus 
 
 23 
 
178 DEFAULT.— DEPOSITARY. 
 
 conveyed "is in all cases to have the preference:" — Seld, that the ■words 
 " erected on said flume and privilege," did not restrain those of the preceding 
 clause, so as to enable the grantor, or his assigns, to draw as much water for 
 the mills on the other side of the stream and not through the same flume, as 
 they might choose. Jordan v. Mayo, xzi. 5.52. 
 
 198. A conveyance of all the right, title and interest, which the grantor has 
 in and to the land described in his deed, conveys only the right, title and in- 
 terest, which he actually has at the time of the conveyance. Goe v. persons 
 unhnown, xliii. 432. 
 
 See AciiON, 1. 
 Heir, 13. 
 
 DEFAULT. 
 
 By a default, the declaration is to be taken as true, and regarded the same 
 as it would have been if a verdict had been given. Heath v. Whidden, 
 XXIX. 108. 
 
 DELIVERY. 
 See Sale. Deed. 
 
 DEMURRER. 
 
 See Pleading. 
 
 DEPOSITARY. 
 
 1 . A depositary, with whom money has been lodged, to be paid to a third 
 person, when the depositor " shall have satisfied himself" of a fact connected 
 with the deposit, is not bound to inquire whether the fact has occurred. 
 Carle v. Bearce, xxxiii. 337. 
 
 2. An indorsed note, lodged with a depositary, to be delivered to the bene- 
 ficiary when a specified incumbrance shall be removed from the property for 
 which it was given, becomes the absolute property of the beneficiary, upon 
 the removal of the incumbrance ; and the beneficiary may maintain an action 
 on the same, although the depositary wrongfully refuses to surrender the 
 possession of it. Chase v. Gates, xxxiii. 363. 
 
DEPOSITION. 179 
 
 DEPOSITION. 
 
 I. WHEN ADMISSIBLE IN EVIDENCE. 
 
 II. CAPTION, NOTICE, TAKING, KETURNING, OPENING AND PIL- 
 ING DEPOSITIONS. 
 
 I. WHEN ADMISSIBLE IN EVIDENCE. 
 
 1. Wtere a deposition of a party to the suit, taken to be used in another 
 Court in a case between other parties, is oifered in evidence in this Court by 
 the opposing party, the whole deposition becomes evidence in the case. 
 Eammatt v. Emerson, xxvii. 308. 
 
 2. A deposition, taken in conformity to statute of 1842, c. 1, is admissible, 
 unless the adverse party shall show that the cause for taking such deposition 
 has ceased to exist, and that the deponent is within thirty miles of the place 
 of trial, and able to attend. Brown v. Burnham, xxviii. 38. 
 
 3. Depositions taken out of the State, by 'persons duly authorized, may be 
 admitted or rejected at the discretion of the Court, although the oath was not 
 administered to deponent before giving his deposition. Wight v. Stiles, 
 XXIX. 164. Clarh v. Pishon, xxxi. 503. George v. Nicliols, xxxii. 179. 
 Freeland v. Prince, xli. 105. 
 
 4. So much of a deposition as contains the answer to an interrogatory, 
 leading in its nature, and the interrogatory itself, propounded to a deponent 
 in his direct examination, and objected to at the time, must be stricken out. 
 Cleaves v. StocJcwell, xxxiii. 341. 
 
 5. A deposition, impeaching the general reputation of an opposing witness 
 for truth, cannot be excluded, although it also shows that the reputation was 
 founded upon the witness' neglect to fulfil his agreements. Mapgood v. 
 Fisher, xxxiv. 407. 
 
 6. A deposition, taken before a discontinuance as to one of joint defend- 
 ants, to be used against all the original defendants, is admissible against 
 the remaining defendants, after such discontinuance. Medcalf v. Seccomh, 
 xxxvi. 71. 
 
 7. Section 20, c. 133, of R. S. of 1841, in regard to depositions taken on 
 written interrogatories, has reference to such as may be taken before a magis- 
 trate on notice, as well as to those taken under a commission. Lord v. 
 Moore, xxxvii. 208. 
 
 8. When a deposition is taken on written interrogatories, and incompetent 
 testimony is drawn out in response, such testimony may be excluded, although 
 not objected to at the time of taking. Lord v. Moore, xxxvii. 208. 
 
 9. If irrelevant declarations are so intermingled by the deponent with mat- 
 ters pertinent to the issue, that they cannot be separated without modifying 
 the pertinent matter or rendering its meaning obscure, then the whole of his 
 declarations become admissible. Lord v. Moore, xxxvii. 208. 
 
 10. Where the trustee claims to hold defendants' property by virtue of an 
 assignment for the benefit of their creditors, and an issue is made up alleging 
 the assignment to be fraudulent, a deposition duly taken, on notice given to 
 the trustee, is admissible. Totman v. Sawyer, xxxix. 528. 
 
 11. If a witness be disqualified, by reason of interest, at the time of giving 
 
180 DEPOSITION. 
 
 his deposition, and at the time of trial that disqualification is removed by 
 statute, the deposition is admissible. Haynes v. Howe, XL. 181. 
 
 12. An agreement of parties, that a deposition may be used by either side 
 in the trial of a cause, and not in terms limited to the trial at a particular 
 term of the Court, is admissible at a subsequent trial ; especially where it 
 does not appear that the party objecting is taken by surprise, or that he asks 
 for a continuance, in consequence of its admission by the presiding Judge, 
 Haynes v. Hayward, xli. 488. 
 
 II. CAPTION, NOTICE, TAKING, RETURNING, OPENING AND FIL- 
 ING DEPOSITIONS. 
 
 13. It is not necessary that the caption of a deposition should specify the 
 kind of action in reference to which it was taken, if it otherwise sufficiently 
 apprise the adverse party of the particular cause in which it is intended to be 
 used. Scott V. Perkins, xxTiii. 22. Knight v. Nichols, xxxiv. 208. 
 
 14. A deposition was taken by defendant, after service but before the entry 
 of the writ. By the caption, notice was served upon " G. B. M., plaintiff's 
 attorney." The only indorsement upon the writ was " from G. B. M.'s 
 office," in the handwriting of G. B. M., who afterwards entered the action and 
 appeared as the plaintiff's attorney in Court: — Meld, the notice was insuf- 
 ficient. Pierce v. Pierce, xxix. 69. 
 
 15. Where a deposition purports, in its caption, to have been taken and 
 subscribed by a magistrate or commissioner, his official character and the 
 genuineness of his signature, in the absence of controling proof, are presumed. 
 Bullen V. Arnbld, xxxi. 583. Palmer v. Fogg, xxxv. 368. 
 
 16. In a notice for the taking of a deposition, if there be a defect as to the 
 place of the taking, it is waived by the attendance of the party notified. 
 George v. Nichols, xxxii. 179. 
 
 17. In depositions taken out of the State, it is not essential that the mag- 
 istrate be a commissioner. George v. Nichols, xxxii. 179. 
 
 18. The magistrate's certificate, as to facts which he is required to state in 
 the caption of a deposition, within this State, is conclusive evidence of the 
 facts certified, and cannot be controlled aliunde. Cooper v. Baheman, xxxiil. 
 376. Norris v. Vinal, xxxiii. 581. True v. Plumley, xxxvi. 466. 
 
 19. In order to the taking of a deposition, the adverse party or his attorney 
 must have notice to attend. Allen v. Doyle, xxxiii. 420. 
 
 20. Though a practising attorney-at-law be notified to attend, and do at- 
 tend and act at the taking, as the attorney of the adverse party, the deposi- 
 tion is not thereby rendered admissible, unless he had indorsed the writ or 
 summons, or had appeared in the cause, or had given notice in writing that 
 he was the attorney of the adverse party. Allen v. Doyle, xxxiii. 420. 
 
 21. The statute, requiring the caption of a deposition to certify that the 
 deponent was sworn " according to law," may be complied with by the 
 certificate in the words of the statute ; or by a specification therein of the 
 language used in administering the oath ; and if the latter appears to have 
 been what the law requires, it is sufficient. Bachelder v. Merriman, xxxrv. 
 69. Parsons v. Huff, xxxviii. 137. 
 
 22. A certificate, that " the deponent was first sworn and was examined 
 according to law," is insufficient. Baeheldir v. Merriman, xxxit. 69. 
 
DEPOSITION. 181 
 
 23. The statute does not require the caption to state at whose request the 
 deposition was taken. Enight v. Nichols, xxxiv. 208. 
 
 24. The caption of a deposition sufficiently states the cause in which it is 
 to be used, if it name the parties and the Court in which the trial is to be 
 had. Knight v. Nichols, xxxiv. 208. 
 
 25. A deponent, before giving his deposition, is to be sworn to testify the 
 truth, the whole truth and nothing but the truth, relating to the cause or 
 matter for which the deposition is to be taken. R. S., 1841, c. 133, § 15. 
 Brighton v. Walker, xxxv. 132. 
 
 26. A caption, which certifies that " the deponent was first sworn accord- 
 ing to law, to the deposition by him subscribed, is insufficient. Rice, J. ; 
 HowABD and Hathaway, J. J., dissenting. Brighton v. Walker, xxxv. 
 132. Erskine v. Boyd, XXXT. 511. 
 
 27. Where, after the taking of a deposition, the terra of the Court at 
 which it was returnable has been abolished, and its business transferred to a 
 subsequent term, the deposition may be rightfully opened and filed at such 
 subsequent term. Palmer v. Fogg, xxxt. 368. 
 
 28. Unless referred to in the caption, neither the original citation, nor the 
 officer's return upon it can be received to control the magistrate'^ certificate, 
 even though they be annexed. Medcalf \. Seccomb, xxxti. 71. Norris v. 
 Vinal, xxxiii. 581. 
 
 29. A certificate that " the adverse party was duly notified to attend, as 
 will appear by the notice annexed," makes the notice part of the certificate, 
 and re-examinable by the Court. Porter r. Pillslury, xxxvi. 278. 
 
 30. The time allowed on citation to take depositions has relation to the 
 distance firom the usual place of abode of th^ party cited, to the place of cap- 
 tion, and not from the place where he may happen to be found. Porter v. 
 Pillsbury, xxxvi. 278. 
 
 31. Notice to the adverse party's attorney of record is sufficient, although 
 the party taking the deposition had been informed, prior to such notice, that 
 said attorney had retired from the action. Eerrin v. Lihbey, xxxti. 350. 
 
 32. The magistrate's certificate to a deposition is evidence only of such 
 facts as the statute requires him to certify. Hall v. Houghton, xxxvii. 411. 
 
 33. Depositions, taken without notice to the adverse party, as required 
 by law, cannot be used, except by consent of parties. Hall v. Houghton, 
 XXXYII. 411. 
 
 _ 34. Although the " adverse party" was present at the taking of the depo- 
 sition, this fact is not evidence that he had the legal notice, or that he waived 
 it. Hall V. Houghton, xxxvii. 411. 
 
 35. All objections to the technicality or formality of interrogatories in dep- 
 ositions must be specifically made, at the time of the caption ; but objections 
 to matters of substance need not be made until trial. Parsons v. Huff, 
 xxxYiii. 137. 
 
 36. The statute requires the deponent to be sworn but once, and that be- 
 fore gmng the deposition. Parsons v. Huff, -xxxviii. 137. 
 
 37. If the certificate states that the deponent, after giving his deposition, 
 was duly sworn according to law, it wiU not remedy any omission in cOmply- 
 mg with the statute requirement. Parsons v. Huff, xxxtiii. 137. 
 
 38. The caption must show that, before giving his deposition, the depon- 
 ent was sworn to testify the truth, &c., "relating to the cause for Mich 
 
182 DESERTER.— DEVISE AND LEGACY. 
 
 the deposition is to he taken" or it ■will be insufficient. Parsons v. Huff, 
 XXXYIII. 137. 
 
 39. The discretion of the Court in admitting or rejecting depositions, tak- 
 en out of the State, has never been defined ; but the practice has been to ad- 
 mit them when the Judge is satisfied that there has been a substantial com- 
 pliance with the statute. Freeland v. Prince, xli. 105. 
 
 40. The certificate that the deponent " being first duly sworn, gave his 
 aforesaid deposition," imports that he was sworn according to law, before 
 giving it. Dennison v. Benner, xli. 332. 
 
 41. A justice of the peace is not authorized, by the statute, to take depo- 
 sitions in cases where he is, or has been, counsel or attorney. Cutler v. 
 Maker, xli. 594. 
 
 42. But such justice may issue notices to the adverse party, returnable be- 
 fore another magistrate. Cutler v. Maker, xli. 594. 
 
 DESERTER. 
 
 1. A deserter, from the army of the United States, maybe arrested and 
 confined for trial by his appropriate officers, without a warrant. Hutchinga 
 V. Van Bokkelen, xxxiT. 126. 
 
 2. It is no infraction of the deserter's rights, that the county jail is used as 
 the place of his confinement. Sutchings v. Van Bokkelen, xxxiv. 126. 
 
 3. Such confinement, for the space of ten days, is not unjustifiable, unless 
 it appear that a court martial could have been convened for his trial within 
 that period. Sutchings v. Van Bokkelen, xxxiv. 126. 
 
 DEVISE AND LEGACY. 
 
 I. OF LEGATEES AND DEVISEES, AND THEIR SEIZIN. 
 II. WHEN A DEVISE IS IN FEE, FOR LIFE, IN TAIL, OR OTHER- 
 WISE. 
 nL WHETHER A DEVISE OR LEGACY IS SPECIFIC, ABSOLUTE, 
 
 CONDITIONAL, CONTINGENT, OR EXECUTORY. 
 IV. REMEDIES, FOR AND AGAINST. 
 
 L OF LEGATEES AND DEVISEES, AND THEIR SEIZIN. 
 
 1. The title of a devisee, under a foreign wiU, commences upon the death 
 of the testator. Put. F. School v. Fisher, xxx. 523. 
 
 2. A devise of real estate to T. L. with the proviso, that if he is not then 
 living or should not live to claim and receive the same, then to go to J. S. L., 
 vests the title in T. L., at the death of the testator. Eawson v. Clark, 
 XXXVIII. 223. 
 
DEVISE AND LEGACY. 183 
 
 3. A general devise, of all the testator's real estate, will include estate held 
 in trust, unless it clearly appear in the will that such was not the testator's 
 intention. Bichardson v. Woodhwy, xliii. 206. 
 
 ' See AcTioK, 22. 
 DowEB, 37. 
 
 n. WHEN A DEVISE IS IN FEE, EOR LIEE, IN TAIL, OB, OTHER- 
 WISE. 
 
 4. A devise of the income of land to the use of the devisee during his life, 
 confers upon him a life estate in the land. Butterfield v. SasJcins, xxxiil. 
 392. Harl v. Rowe, xxxv. 414. Stone v. North, xli. 265. 
 
 5. A devise of the care and management of land and of the disposition of 
 its income, during the life of the devisee, for the benefit of another, confers 
 upon the devisee a life estate, in trust. Butterfield v. Hashing, xxxiil. 392. 
 
 6. A devise to a person and his heirs, with a devise over, in case he should 
 die without issue, vests in the first devisee an estate in fee tail, and a remain- 
 der in the second devisee. Fisk v. Keene, xxxv. 349. 
 
 7. Land was devised to M., his heirs and assigns, with devise over, (in 
 case he should die without " heirs,") to his wife during life or widowhood ; 
 and, at the termination of her estate, to the devisor's surviving children or 
 their heirs : — Held, that the devise to M. was not limited to a life estate in 
 him ; — that it could not take efiect as an executory devise ; — that it did not 
 vest in M. a fee simple conditional, but a fee tail general. Fisk v. Keene, 
 xxxv. 349. 
 
 8. A direction, by the testator, that A. B. " shall receive fbr his support 
 the net profits of the land," is a devise of the land itself. Earl v. Bowe, 
 xxxv. 414. 
 
 9. "I give and bequeath unto my son, 0. P., the land he is now in posses- 
 sion of, also one-half of lot No. 5, to him during his natural life to improve, 
 and then to his heirs after him for their sole right," devises only a life estate 
 to O. P., where the other clauses in the will furnished no evidence of an in- 
 tention to devise an inheritance. Pratt v. Leadbetter, xxxviii. 9. 
 
 10. A. devised the "use, income or interest," of certain personal estate, 
 to his wife during her natural life : — Held, that the devise was not an annui- 
 ty, but a life estate. Stone v. North, xli. 265. 
 
 _ 11. A devise of land to another generally or indefinitely, with a power of 
 disposing of it, is a devise in fee". Shaw v. Huzzey, xli. 495. 
 
 12. Such a devise, without words of inheritance, is treated as equivalent 
 to a devise with words of inheritance. Shaw v. Huzzey, xli. 495. 
 
 13_. "When the testator gives to the first taker an estate for life only, by 
 certain and express words, and annexes a power of disposal, the fee does not 
 vest in the legatee. Shaw v. Huzzey, xli. 495. 
 
 14. A testator, in the first item of his will, " gave and bequeathed to his 
 wife all his estate, real and personal, during her natural life," &c. In the 
 sixth item, he wiUed, " that, at the decease of his wife, aU his real estate; 
 that may remain unexpended by her, be divided in equal shares between," 
 &c. -.—Held, that this being in express terms a devise for life only, the wife 
 did not take an estate in fee ; but the power of disposal being given her by 
 implication, in the words, " that muy remain unexpended by her," she could 
 seU the lands at her discretion. Shaw v. Huzzey, xli. 495. 
 
184 DEVISE AND LEGACY. 
 
 III. WHETHER A DEVISE OR LEGACY IS SPECIFIC, ABSOLUTE, 
 CONDITIONAL, CONTINGENT, OR EXECUTORY. 
 
 15. Where a testator provided that any of his children, after they should 
 come of age*, should have the privilege of continuing at home in pursuit of 
 the common business of the family, and to receive for their labor, at the rate 
 of $130 a year, for the boys, and 75 cents per week, for the girls ; it seems, 
 that the services rendered were conditions upon which, they should receive 
 said sums, and that they were legacies, which might be recovered against the 
 executor. Mayall, appellant, xxix. 474. 
 
 16. A different rule prevails in relation to devises, than that in convey, 
 ances ; and after-born children may take in such cases by way of executory 
 devise. Butterfield v. Hashins, xxxiii. 392. 
 
 17. A devise over, after a devise in fee, cannot take effect as an executory 
 devise, unless the event upon which it is to vest must necessarily happen with- 
 in the prescribed period of a life or lives in being, and twenty-one years, and 
 the period of gestation thereafter. Fisk v. Keene, xxxv. 349. 
 
 18. As it is not matter of necessity that an indefinite failure of issue will 
 happen within the prescribed period, a devise to a person and his heirs, with 
 a devise over in case of his " dying without issue," cannot operate as an ex- 
 ecutory devise. Fish v. Keene, xxxv. 349. 
 
 IV. REMEDIES, EOR AND AGAINST. 
 
 19. Where an estate is devised on condition of, or subject to, the payment 
 of a sum of money, or where the intention of a testator to make an estate, 
 specifically devised, the fund for the payment of the legacy is clearly exhibited, 
 such legacy is a charge upon the estate ; and a court of equity may decree 
 that the person in whom the estate is vested shall execute the trust. Hughee 
 V. Sargent, xxvii, 338. 
 
 20. Where a testator provided, that any of his children, after they should 
 come of age, should have the privilege of ■ continuing at home in pursuit of 
 the common business of the family, and to receive for their labor at the rate 
 of $130 a year for the boys, and 75 cents per week for the girls; it seems, 
 that the services rendered were conditions upon which they should receive said 
 sums, and that they were legacies, which might be recovered in an action at 
 law against the executor. And that such legacies might accumulate until the 
 division of the estate fixed by another clause in the will. Mayall, appellant, 
 XXIX. 474. 
 
 21. After the lapse of a year, an action for a legacy may be maintained 
 by a residuary legatee against the executor, before- a final settlement of the 
 estate, if there are assets in the hands of the executor, upon which there are 
 no superior claims. Smith v. Lambert, xxx. 137. 
 
 22. If there appear superior claims upon the assets, to their full amount, 
 the residuary legatee must be postponed. Smith v. Lambert, xxx. 137. 
 
 23. Where the testator has mistaken the christian name of a legatee, the 
 error may be corrected, as to its effect, on a bill in equity. Wood v. White, 
 xxxii. 340. 
 
 24. If, under the will, the devisee take an estate in fee, subject to life 
 trust, his creditor, by a levy of his estate in remainder, can take no enjoy- 
 ment of the income, until the death of the devisee. Butterfield v. Hashins, 
 XXXIII. 392. 
 
DISTRIBUTION OF ESTATES.— DISTRICT COURT. 185 
 
 DISCLAIMEK. 
 See Real Action. 
 
 DISSEIZIN. 
 See Seizin and Disseizin. 
 
 DISTRIBUTION OF ESTATES. 
 
 1. Tne estate of an intestate must be distributed according to the laws in 
 force at the time of his death. Hughes v. Decker, xxxviii. 153. 
 
 2. If, after the death of the intestate, and before the sum to be distributed 
 is collected, the law as to the distribution of the estate is changed, such 
 change cannot affect the rights of the distributees at the time of the death. 
 Hughes v. Decker, xxxtiii. 153. 
 
 3. Section 19, e. 38, of the laws of 1821, providing "that if there be no 
 kindred to the intestate, then the widow shall be entitled to the whole of said 
 residue," meant lawful kindred only. Decker v. Hughes, xxxviii. 153. 
 
 4. Under that statute, the mother of an illegitimate child cannot claim to 
 be of lawful kindred with her child. Decker v. Hughes, xxxviii. 153. 
 
 5. The division of an estate in the Probate Court, in which a parcel is set 
 out to an heir long before dead, is invalid. Wass v. Bucknam, xxxviii. 356. 
 
 6. If the owner of land execute a lease of it for a series of years and die, 
 the accruing rents, after his decfth, descend to his heirs. Stinson v. Stinson, 
 xxxviii. 593. 
 
 DISTRICT COURT. 
 
 1. By E. S. of 1841, the District Court has power, after verdict and before 
 judgment, on motion and without any additional evidence, to set aside the 
 verdict of a jury in a bastardy process, because, in the opinion of the Court, 
 against evidence, and grant a new trial. Eaton v. Elliott, xxviii. 436. 
 
 2. The Act establishing town courts, in the county of Waldo, did not im- 
 pair or diminish any of the existing powers of the District Court. Ahhott v. 
 Knowlton, xxxi. 77. 
 
 _ 3. After that Act, as well as before, the District Court had original juris- 
 diction of all civil suits, wherein the sum demanded was between twenty and 
 two hundred dollars. Ahbott v. Knowlton, xxxi. 77. 
 
 24 
 
186 DIVORCE. 
 
 4. The District Court has authority to correct mistakes in its records and 
 processes. Morrell v. Cook, xxxi. 120. 
 
 5. In a personal action, the writ was directed to a constable, who attached 
 real estate thereon. The execution, which issued thereon from the District 
 Court, was not so directed ; but the constable levied upon the real estate, 
 within thirty days from judgment : — Eeld, that the District Court might 
 allow the amendment, by inserting a direction to the constable, although the 
 levy had been previously recorded, and the land conveyed by the debtor to a 
 third person, after the attachment and before the levy. Morrell v. Gooh, 
 XXXI. 120. 
 
 6. When, by a statute, jurisdiction of an offence is given to a Justine of 
 the peace, or a police or municipal court, but is not declared to be exclusive, 
 the District Court has concurrent jurisdiction of the same offence. State v. 
 Billington, xxxiii. 146. 
 
 DIVORCE. 
 
 1. The Act of 1829, c. 440, permitting divorces to be decreed, for deser- 
 tion, for the term of five years, without reasonable cause, is not retrospective. 
 Given V. Marr, xxvil. 212. 
 
 2. The Act of 1847, c. 13, did not repeal the laws relating to divorce then 
 in force ; but merely gave further power to the Court, " to decree a divorce" 
 a vinculo, in cases not then " provided for by law." Anonymous, xxvil. 563. 
 Bicker v. Bicker, xxix. 281. 
 
 3. The Court, therefore, could not decree a divorce, under the third pro- 
 vision of R. S. of 1841, c. 89, § 2, nor under Act of 1847, c. 13, for deser- 
 tion of one of the parties for a time less than " the term of five successive 
 years." Anonymous, xxvii. 563. Bicker v. Richer, xxix. 281. Small y. 
 Small, XXXI. 493. 
 
 4. Where a wife deserted her husband without cause, for a few months, 
 but went back, confessed to him the wrong and promised a return to duty, 
 and requested admission again into his family, and he refused to receive her, 
 and for five years neglected to provide for her support, such refusal constitutes 
 a desertion on his part, for which she may maintain a libel. Fellows v. Fel- 
 lows, XXXI. 342. 
 
 5. The provisions of R. S. of 1841, which prescribe the causes for which 
 divorce may be decreed, are not repealed by the Act of 1849, c. 116. Motley 
 V. Motley, xxxi. 490. Small v. Small, xxxi. 493. Elwell v. Elwell, 
 XXXII. 337. 
 
 6. Under the former, the party injured could claim a divorce as matter of 
 right ; while under the latter, the appeal can be made merely to the discretion 
 of the Court. Both are in harmony, and both in force. Motley v. Motley, 
 XXXI. 490. Elwell v. Elwell, xxxii. 337. 
 
 7. The discretionary power, conferred upon the Court by the Act of 1849, 
 is applicable only to causes not provided for in R. S. Motley v. Motley, 
 XXXI. 490. 
 
 8. A combination of such wrongs as might, each, become, by a sufficient 
 length of continuance, a ground of divorce, falls within the provisions of the 
 
DONATIO CAUSA MOETIS, ET INTER VIVOS. 187 
 
 Act of 1849, and may be ground for immediate divorce. Motley v. Motley, 
 XXXI. 490. 
 
 9 Under the Act of 1849, a divorce, a vinculo, will not be granted for such 
 cause only, as under R. S., 1841, c. 89, gave a right to a divorce a mensa et 
 thoro. Elwell v. Elwell, xxxii. 337. 
 
 10. If a husband or wife, from whom the other party has procured a di- 
 vorce', would seek relief from the disabilities imposed by the statute, upon 
 the decree of such a divorce, the application must be returnable in the county 
 in which the applicant resides. Tarlell, Pet'r, xxxii. 589. 
 
 11. A divorce, a vinculo, effectually and fully abrogates the marriage con- 
 tract and sets the parties free from their marital relations to each otlier. State 
 V. Weatherly, xliii. 258. 
 
 DONATIO CAUSA MORTIS, ET INTER A^VOS. 
 
 1. A promissory note, made by a third person, is a proper subject of a 
 donation causa mortis. Parker v. Marston, xxvil. 196. 
 
 2. If a promissory note be given and delivered by the payee to a third 
 person, because the donee expects soon to die of the disorder then upon him, 
 it is revocable at any time during the donor's life ; and the same may after- 
 wards be given to any one else. Parker v. Marston, xxvii. 196. 
 
 3. To constitute a donation inter vivos, there must be a gift absolute and 
 irrevocable, without reference to its taking effect at some future time. The 
 donor must deliver the property, and part with all present and future domin- 
 ion over it. ■ Bole v. Lincoln, xxxi. 422. Allen v. Polereczky, xxxi. 338. 
 
 4. To constitute a donatio causa mortis, the gift must be made in contempla- 
 tion of the near approach of death, and to take effect absolutely, only upon 
 the death of the donor. There must be a delivery of the property .to the 
 donee, or to some other person for his use. The donor must part with all 
 dominion over it, so that no further act of him, or of his personal representa- 
 tives, is necessary to vest the title perfectly in the donee, should it not be 
 reclaimed by the donor during his life. Dole v. Lincoln, xxxi. 422. 
 
 5. The donor must part with all dominion over the property to the donee, 
 to belong to him presently, as his own property, in case the donor should die 
 without making any change in relation to it. Dole v. Lincoln, xxxi. 422. 
 
 6. If the property be intended, not for the benefit of the donee, but, as a 
 trust fund, to be dispensed for benevolent uses, at the entire and unlimited 
 discretion of the donee, the alienation cannot be sustained. Bole v. Lincoln, 
 XXXI. 422. 
 
 7. Donations, not made in conformity to the statutes of wills and frauds, 
 but rather suited to contravene them, are not favored by the law. Bole v. 
 Lincoln, xxxi. 422. 
 
188 DOWER. 
 
 DOWER. 
 
 I. WHO IS ENTITLED TO DOWER, AND NATURE OF THE RIGHT. 
 
 II. OF WHAT A WIDOW IS DOW ABLE. 
 
 III. BAR OF HOWER. 
 
 IV. HOW DOWER IS RECOVERABLE. 
 
 I. WHO IS ENTITLED TO DOWER, AND NATURE OF THE RIGHT. 
 
 1. An inchoate right of dower is an existing incumbrance, within the mean- 
 ing of the covenant against incumbrances. Smith v. Cannell, xxxii. 123. 
 
 2. By R. S. of 1841, c. 95, a widow who elects to take the provisions 
 made for her, in her husband's will, has no right to dower also in his estate, 
 unless it plainly appear by the wiU to have been the testator's intention. 
 Hastings v. Clifford, xxxii. 132. 
 
 3. When not entitled to both, she will be considered as accepting the pro- 
 vision in the will, unless, within six months from the probate of the will, she 
 waives such provision. Hastings v. Clifford, xxxii. 132. 
 
 4. But if the widow " be deprived of the provision," or a substantial part 
 of it, " made for her by the will," she is entitled to dower, as if no provision 
 had been made. R. S., 1841, c. 95, § 14. Hastings y. Clifford, -xxxii. 132. 
 
 5. But whether, in case of failure in the provision made for her by the 
 will, she be entitled to dower, if, before the expiration of said six months, 
 she knew of such failure, and made no election to claim dower, quere. Hast- 
 ings V. Clifford, XXXII. 132. 
 
 6. A widow's right of dower, before it is assigned to her, rests only in 
 action. Johnson v. Shields, xxxii. 424. Bolster v. Cushman, xxxiv. 428. 
 
 7. A widow may redeem real estate, mortgaged by her husband during 
 coverture, although the rights of the mortgagee and mortgager have both come 
 by assignments to the defendant, and although, in the mortgage deed, she 
 relinquished her right of dower. Simonton v. Gray, xxxiv. 50. 
 
 8. It is only when the husband dies seized, that the R. S. of 1841, c. 95, 
 § 6, secures to the widow, prior to the assignment of dower, a third of the 
 rents and profits of his land. Bolster v. Cushman, xxxiv. 428. 
 
 9. The word " dower," both technically, and in popular acceptation, has 
 reference to real estate exclusively. How v. Dow, xxxvi. 211. 
 
 n. OF WHAT A WIDOW IS DOWABLE. 
 
 (a) What seizin op the husband is neobssaky. 
 
 (b) Of what lands, and op what poetion teebeof, a widow is dowable. 
 
 (a) What seizin of the husband is necessary. 
 
 10. The wife is not entitled to dower, during the life of her husband, in 
 lands of which he had been seized during coverture, and had conveyed prior 
 to the Act of 1829, c. 440, or the Act of 1838, c. 342, although she sub- 
 sequently obtained a divorce under said Acts. Given v. Marr, xxvii. 212. 
 Curtis v. Hohart, xli. 230. 
 
 11. If the grantee, upon receiving a conveyance of land, as a mere instru- 
 
DOWEE. 189 
 
 ment, conveys it to another, without receiving any beneficial interest in it 
 himself, he has no such seizin as will entitle his widow to dower. Gammon 
 V. Freeman, xxxi. 243. 
 
 12. If his conveyance be by mortgage, and the estate be forfeited and held 
 by virtue of the mortgage, his interest as mortgager is not such a beneficial 
 interest as to he the foundation of a claim of dower. Gammon v. Freeman, 
 XXXI. 243. 
 
 13. A widow will not be entitled to dower, when it appears that the seizin 
 of her husband has been defeated by an elder and better title. Brown v. 
 Williams, xxxi. 403. 
 
 14. If a debtor intermarry after an attachment of his real estate, and dies 
 subsequent to the levy, made within thirty days after judgment and duly re- 
 corded, he has no such seizin as will entitle his widow to dower. Brown v. 
 Williams, xxxi. 403. 
 
 15. Nor where land is mortgaged by the grantee to the grantor, at the same 
 time he receives his deed, or to a third person, to secure him for making a 
 payment for the land. Smith v. Stanley, xxxTii. 11. Grant v. Dodge, 
 XLiii. 489. 
 
 16. But if the mortgagee discharge the mortgage, or the debt thereby be 
 ' paid, the seizin of the mortgager takes efiect from the time of the original 
 
 deed, and his widow will be dowable therein. Smith v. Stanley, xxxvii. 11. 
 
 1 7. If the mortgagee subsequently release to a third person his lien to one- 
 half of the land, and receive new notes for the amount due' him, and take a 
 new mortgage from the original mortgager and such third person ; this will 
 not discharge the prior mortgage, so, as to establish the seizin of the prior 
 mortgager to more than the one-half released. Smith v. Stanley, xxxtii. 11. 
 
 18. Where land was conveyed to the demandant's husband, and he mort- 
 gaged it back at the same time to secure the purchase money, the demandant, 
 as against the mortgagee or assignee, is dowable of only an equity of redemp- 
 tion ; but against all others, she has a right of dower in the land. Young v. 
 Tarbell, xxxvii. 509. 
 
 19. The husband of a demandant in dower must have had an actual or 
 corporeal seizin, or a right to such seizin. Mann v. Edson, xxxix. 25. 
 
 20. But possession is indicative of seizin until rebutted by evidence of a 
 paramount title. Mann v. Edson, xxxix. 25. 
 
 21. If the husband paid the money for the land, and the deed was made 
 to another in fraud of creditors, and the husband received a life lease and 
 continued in possession till his death, this is no such seizin as will entitle 
 his wife to dower. Mann v. Edson, xxxix. 25. 
 
 22. The widow shaU not be endowed when her husband was seized but for 
 an instant, though a continued seizin, however short, entitles her to dower. 
 (xrant v. Dodge, xliii. 489. 
 
 23. If the tenant would defeat the demandant's claim of dower, he must 
 prove that the deed and mortgage relied on, constituted one transaction. 
 APPLETON, J., non-concurring. Grant v. Dodge, xliii. 489. 
 
 (b) Of what lands, and of what portion thereof, a widow is dowable. 
 
 onT'thM ''^^'^T 'T'^ i*"' assignment of dower, a widow is entitled to 
 one third out of each tract or parcel of the land; which endowment is 
 denommated " according to common right." French v. FraU, xxyTsSl. 
 
190 DOWER. 
 
 25. Where dower is assigned by the heir, he may assign the whole of one 
 or more of the several tracts in lieu of a third of each one, which will be a 
 good assignment if accepted by the widow ; which endowment is " against 
 common right." French v. Pratt, xxvii. 381. French v. Peters, xxxiii. 
 396. 
 
 26. If dower be assigned " according to common right," and the widow be 
 evicted, by a paramount title, of the third assigned to her in one parcel, she 
 is entitled to be endowed anew in the remainder of that parcel. French v. 
 Pratt, XXVII. 381. 
 
 27. But if the widow be endowed " against common right," and be evicted 
 of a part of the land assigned to her, she can have no new assignment, by 
 reason thereof, in lands in which dower was not assigned. French v. Pratt, 
 xxTii. 381. 
 
 28. Such is the law, whether the assignment was made under probate or 
 common law jurisdiction ; c. 95, § 14, being but an aifirmance of the common 
 law. French v. Pratt, xxvii. 381. 
 
 29. An acceptance by the Probate Court of an assignment " against common 
 right," is an acceptance by the widow, she having the right to be heard. 
 French v. Pratt, xxvii. 381. 
 
 30. The widow is entitled to have such a part of the land set out to her as 
 dower, as will produce an income equal to one-third part of the income which 
 the whole estate would now produce, if no improvements had been made 
 upon it since it was conveyed by the husband. Oarter v. Parker, xxviii. 
 509. 
 
 31. Where a simple partition of a common estate is made, the right of the 
 widow of each tenant to claim dower is restricted to the share assigned or 
 conveyed to the husband. Mosher v. Mosher, xxxii. 412. 
 
 32. Where partition be not made by assigning to each his own share, hut 
 in unequal shares and of unequal values, and especially for other considera- 
 tions than an equal division, the widow's right is not so restricted. Mosher 
 T. Mosher, xxxii. 412. 
 
 33. A widow is dowable in an equity of redemption, as against the mort- 
 gagee or assignee ; but against all others, in the land. Manning v. Lahoree, 
 XXXIII. 343. Simonton v. Gray, xxxiv. 50. Young v. Tarbell, xxxvii. 
 509. 
 
 34. In an action of dower, against the heir, the increased value of the land, 
 independent of the labor and expenditiu-es of the tenant, is subject to the 
 widow's dower. Manning v. Lahoree, xxxiii. 343. 
 
 35. Where an assignment, made " against common right," has been avoid- 
 ed in a portion of the land assigned, by virtue of a foreclosed mortgage given 
 by the husband, the widow is restored to her original right of dower in such 
 portion, French v. Peters, xxxiii. 396. 
 
 36. The annual value of a widow's dower, in a mortgaged estate, is found 
 by deducting, from one-third of the net annual income of the whole estate, 
 one-third of the annual interest on the amount of the mortgage debt due. 
 Simonton v. Gray, xxxiv. 50. 
 
 37. A testator devised one undivided fourth part of his mills and real estate 
 connected therewith, to his executors, in trust for S. W. D., during her natural 
 life, on condition that they would retain and pay over the income of that part 
 towards removing the incumbrances, and towards the consideration for it, 
 until one-fourth of the incumbrance and consideration, remaining unpaid, were 
 discharged ; subject also to its proportion of the repairs : — 
 
DOWER. 191 
 
 He also devised to his executors all his real and personal estate, excepting 
 said fourth part, to he held in trust for the payment of his debts, legacies and 
 bequests ; and to pay the increase thereof, subject to the support of his tamily, 
 towards said debts, &c., when said trust was to cease : — 
 
 He also bequeathed aU the residue of his estate to his three children, bav- 
 ins made no provision in his will for his wife : — , . , „ , , , 
 
 The dower in the mills was determined to be one-third of the rents and 
 profits And after the proportional part of incumbrances and consideration 
 were discharged, the executors withheld one-third of the net income of said 
 fourth to discharge the widow's claim for dower : — _ 
 
 Held, that such specific devise was subject to dower, without contribution 
 or remuneration from the residuary estate. Drummond v. Drummond, xi. 35. 
 
 III. BAR OF DOWER. 
 
 38. A married woman, who joins her present husband in a conveyance of 
 real estate, by relinquishing her right of dower therein, is estopped to claim 
 dower under her former husband. TJsher v. Bichardson, xxix. 415. 
 
 39. In a suit for dower, against the assignee of a mortgagee, the demand- 
 ant is not barred, by having joined with her husband, for the purpose of re- 
 leasing dower, in his conveyance of the equity of redemption to a third person. 
 Littlefidd V. Crocker, xxx. 192. 
 
 40. A delay of more than six months to make the election, whether she 
 will waive the provisions of the will, is considered an acceptance of the same, 
 and bars a widow's dower. Hastings v. Clifford, xxxii. 132. 
 
 41. A widow's release or conveyance 6f her right of dower, except to a 
 party in possession or in privity of the estate, from which it accrued, is with- 
 out effect. Johnson v. Shields, xxxii. 424. 
 
 42. An unsealed instrument, in form of a deed, signed by husband and 
 wife, though containing a formal relinquishment of her dower, is no bar to 
 her right. Manning v. Lahoree, xxxiii. 343. 
 
 43. It is not a bar to an action of dower, that the widow of an earlier 
 proprietor has already recovered dower against the tenant. In such case, her 
 right is one-third of the remaining two-thirds, together with the contingent 
 right to an endowment in the first third, whenever the first endowment should 
 be extinguished. Manning v. Laboree, xxxiii. 343. 
 
 44. The Act of 1821, relating to the mode of relinquishing a right of dower, 
 superseded all former ordinances, acts and usages on that subject. French 
 V. Peters, xxxiii. 396. 
 
 45. The Act of 1821, c. 40, § 6, gave no efficacy to a widow's relinquish- 
 ment of her right of dower, unless her husband joined in its execution. 
 French v. Peters, xxxiii. 396. 
 
 46. A release, by a married woman, executed while that statute was in 
 force, in which the husband did not join, though indorsed upon his convey- 
 ance, and alleged to be in consideration of the sum mentioned in his convey- 
 ance, constitutes no bar. French v. Peters, xxxiii. 396. 
 
 47. An unsealed agreement by a dowress, (after having recovered judg- 
 ment for her dower,) made with the warrantor of the judgment-tenant, that 
 she would receive a specified sum yearly, during life, in lieu of dower, is not 
 a release of dower. Sargent v. Roherts, xxxiv. 135. 
 
192 DOWER. 
 
 IV. HOW DOWER IS RECOVERABLE. 
 
 (a) Demand and assignment. 
 
 (b) Action op dowee, pleadings, evidence and damages. 
 
 (a) Demand and assignment. 
 
 48. Tte demand of dower must be made " of the person who is seized of 
 the freehold, at the time of making the demand, if he be in this State, 
 otherwise, of the tenant in possession. Luce v. Stubbs, xxxv. 92. 
 
 49. So it may be made by parol, and by one authorized by paroL Luce 
 V. Stubhs, xxxv. 92. Curtis v. Hohart, xli. 230. 
 
 50. It need not be made upon the land in which dower is cla;imed. Luce 
 V. Stubbs, xxxv. 92. 
 
 51. A paper, addressed to the tenant and subscribed by the widow, con- 
 taining in proper form a demand of dower, if seasonably received by him, 
 will constitute a sufficient demand. And although not proved to have been 
 originally made upon him in person. Luce v. Stubbs, xxxv. 92. 
 
 52. A demand, for dower in land owned by minor children, made on them 
 and their guardian, is sufficient, although the person is not described as 
 guardian. Young v. Tarhell, xxxvii. 509. 
 
 53. Dower may be assigned by parol. And by a guardian. Curtis v. 
 HobaH, XLI. 230. 
 
 (b) Action of dower, pleadings, evidence and damages. 
 
 54. In an action of dower, the thirty-fourth rule does not authorize the 
 admission of an office copy of a deed, acknowledged by her husband, though 
 not by her, and recorded, purporting to be a conveyance of the premises by 
 the husband, and a relinquishment, by her of her right to dower, without the 
 proper proof of the loss of the original. Sellars v. Carpenter, xxvii. 497. 
 
 55. In dower, the marriage of the demandant may be inferred from proof 
 of long cohabitation, continued until the death of the alleged husband, being 
 received and treated as his wife, and their having brought up and educated a 
 family of children as their own. Carter v. Parker, xxviii. 509. 
 
 56. Conveyance of the premises, wherein dower is claimed, to the husband 
 by deed of warranty, and his conveying the same to another or to the tenant, 
 during coverture, is sufficient proof of seizin, in the absence of evidence to the 
 contrary. Carter v. Parker, xxviii. 509. Thorndike v. Spear, xxxi. 91. 
 
 57. Damages recoverable in an action of dower are one-third of the value 
 of the income of the premises per annum, from one month after the time of 
 demand to the time of judgment. Carter v. Parker, xxviii. 509. 
 
 58. Where the demandant, to prove her husband's seizin, introduced a 
 deed to him, another from himself to another, and from such third person to 
 the tenant: — Held, that the effect of such proof is not repelled by proof 
 that the husband, at the time of his conveyance, had recovered judgment 
 against a third person for the land, in a writ of entry upon his own seizin, 
 but had not paid to the tenant the amount assessed by the jury for better- 
 ments, but did pay the same within the year allowed by the statute. Thorn- 
 dike V. Spear, xxxi. 91. 
 
 59. Though one, claiming land under a conveyance from the husband of a 
 demandant in dower, be estopped to deny the seizin of the husband, he is 
 
DOWEE. 193 
 
 entitled to show, that the seizin was not of such a character as to confer a 
 right of dower. Gammon v. Freeman, xxxi. 243. 
 
 60. To an action of dower, non-tenure can be pleaded in abatement only. 
 Manning v. Laboree, xxxiii. 343. Young v. Tarbell, xxxvii. 509. 
 
 61. A demand in dower may be proved by admissions of the tenant, or it 
 may be inferred from facts and circumstances proved. Luce v. Stuihs, 
 xxxT. 92. 
 
 62. Proof, that a paper, addressed to the tenant and signed by the demand- 
 ant, containing in rightful form a demand of her dower, was seasonably left 
 at the dwellinghouse of the tenant, where it was read by some of the inmates, 
 taken in connection with the admission that dower had been demanded of 
 him, will authorize the jury to infer that the paper was received and under- 
 stood by him. Luce v. Stulibs, xxxv. 92. 
 
 63. It is no defence to an action of dower, that dower has been assigned in 
 the premises to a widow, whose right was subsequent to that of the demand- 
 ant. Young V. Tarbell, xxxvil. 509. 
 
 64. If an administrator, whose intestate owned land incumbered by a mort- 
 gage, which land is not needed to pay the debts of the intestate, or charges 
 of administration, purchase such mortgage, the heirs cannot set it up in his 
 hands to defeat the widow of the mortgager of her dower. Young v. Tar- 
 hell, XXXVII. 509. 
 
 65. The legality of the proceedings, in the assignment of dower, cannot be 
 contested by one having no interest to be affected thereby. Bawson v. Clark, 
 XXXVIII. 223. 
 
 66. Possession is indicative of seizin, until rebutted by evidence of a para- 
 mount title in the tenant. Mann v. Edson, xxxix. 25. 
 
 67. In dower, the declarations of demandant's husband as to his equitable 
 title are immaterial and inadmissible. Mann v. Edson, xxxix. 25. 
 
 68. In dower, if the plea ne ungues accouple conclude by tendering an 
 issue to the country, it is bad on demurrer. Freeman v. Freeman, xxxix. 
 426. 
 
 69. But if the declaration be bad also, the judgment must be against the 
 party committing the first fault in pleading. Freeman v. Freeman, xxxix. 
 426. 
 
 70. Unless the declaration allege a seizin of the husband, of an estate of 
 which by law his widow is dowable, it is defective and insufficient. Freeman 
 V. Freeman, xxxix. 426. 
 
 71. So it must also show, that the demand was made on the one then 
 seized of the freehold, if within the State ; otherwise on the tenant in pos- 
 session. Freeman v. Freeman, xxxix. 426. 
 
 72. The demandant in dower, having recovered judgment for her dower, 
 and damages for detention thereof, cannot maintain a separate action against 
 the tenant for the use of the premises, from the date of the verdict, to the 
 time of the actual assignment. Purrington v. Pierce, xli. 529. 
 
 25 
 
194 DURESS.— EASEMENT. 
 
 DURESS. 
 
 1. By duress, is meant that degree of severity, either threatened or impend- 
 ing, or actually inflicted, which is suiRcient to overcome the mind and will 
 of a person of ordinary firmness. Fellows v. Fayette, xxxix. 559. 
 
 2. Duress per minas is restricted to the fear of remediless harm to the per- 
 son. Fellows v. Fayette, xxxix. 559. 
 
 3. The plea of duress of imprisonment is supported by any evidence, that 
 the party was unlawfully restrained of his liberty, until he would execute the 
 instrument. Fellows v. Fayette, xxxix. 559. 
 
 See Bills, &e., 162, 163. 
 
 DWELLINGHOUSE. 
 See Curtilage. Contract, 94. 
 
 EASEMENT. 
 
 1 . An easement may be extinguished. Ballard v. Butler, xxx. 94. 
 
 2. An easement, created by reservation in a deed, and consisting in a right 
 to take water from a well, imposes upon the owners of the servient estate the 
 obligation to keep the well in repair, or in a condition to be used. Such a 
 reservation does not assure the right in the well as a permanency, but only so 
 long as it existed in a suitable state for use. Ballard v. Butler, xxx. 94. 
 
 3. Such an easement is destroyed by erecting buildings of a permanent 
 character over and upon the well. Ballard v. Butler, xxx. 94. 
 
 4. For the wilful destruction of the easement by the erection of such build- 
 ings by the owner of the servient estate, damages may be recovered. Ballard 
 V. Butler, xxx. 94. 
 
 5. One who purchases the dominant estate, after the extinguishment of the 
 easement, can have no remedy against one who has purchased the servient 
 estate, after such extinguishment. Ballard v. Butler, xxx. 94. 
 
 6. Easements, in another's land, may be acquired by prescription, either 
 by communities or individuals. Easements, so acquired, are, in legal intend- 
 ment, without profit. Littlefield v. Maxiuell, xxxi. 134. 
 
 7. Until an easement in a street has been acquired by the public, any 
 erection made upon the street, by which the use of it as a passage way is ob- 
 structed, the owner of the soil adjoining may treat as a private nuisance, and 
 recover damages. Sutherland v. Jackson, xxxii. 80. 
 
 8. The reservation of a right to pass upon an old pathway to one lot of 
 land, may not confer the right to pass further upon the same pathway to 
 another lot. Farley v. Bryant, xxxii. 474. 
 
EMANCIPATION. 195 
 
 9 A public road is an easement. Haynes v. Young, xxxvi. 557. Vas- 
 salboro' V. S. & K. B. B. Co., xliii. 337. 
 
 10 Merely abutting one's miU-dam upon the opposite shore, without claim 
 of risht may create an easement after its continuance for twenty years, but 
 will not'divest the owner of the shore of his title. Traslc v. Ford, xxxix. 
 
 437. 
 
 11 Such acts are assumed to be in submission to the title of the owner, 
 unless they appear to be adverse. Trask v. Ford, xxxix. 437. 
 
 12 When such dam is joined to the opposite shore by consent of the 
 owner, its materials belong to the builder of the dam. Trask v. Ford, xxxix. 
 437. 
 
 13. And while the dam remains, the owner of the shore may so interfere 
 with it as to enjoy his rights, but not to appropriate any of the materials to 
 his individual use. Trask v. Ford, xxxix. 437. 
 
 14. An easement may be extinguished by the lawful location and construc- 
 tion of a street, with its embankments and walls. Muzzey v. Union Wharf, 
 XLi. 34. 
 
 15. No right can be acquired to an easement merely as appurtenant to 
 land, the existence of which easement is suspended at the time the title to 
 the land is acquired.. Muzzey v. Union Wharf, xli. 34. 
 
 16. At common law, an easement may be acquired upon the land of anoth- 
 er, without proof that the owner has sustained damage. Underwood v. JV. 
 W. S. Co., XLI. 291. 
 
 See AQT7ATIC Rights, 4. 
 Pbesceiption. 
 
 EMANCIPATION. 
 
 1. A minor's desertion of her father's home, does not constitute emancipa- 
 tion, so long as the father has not relinquished his right of control, nor con- 
 sented that she should act for herself independently of the father. Bangor v. 
 Beadfield, xxxii. 60. 
 
 2. An arrival at the age of twenty-one years does not emancipate a child 
 resident in his father's family, and non compos mentis. Tremont v. Mt. 
 Desert, xxxvi. 390. 
 
 3. A minor son, allowed by his father to leave him and work for his own 
 support, and contract for himself without interference, may acquire and hold 
 property in his own right, and maintain actions at law respecting it, although 
 he has never been emancipated. Boohier v. Boobier, xxxix. 406. 
 
 4. A minor child, of parents who are paupers, bound to service, by over- 
 seers of the poor, by written indentures, until twenty-one years of age, is not 
 thereby emancipated. Oldtown v. Falmouth, XL. 106. 
 
 See Pauper, 2, 3, 5, 42, 43, 54, 56. 
 
196 EMBEZZLEMENT.— EQUITY. 
 
 EMBEZZLEMENT. 
 
 By R. S. of 1841, c. 156, § 7, it is an offence, punishable in this State, if 
 a person to whom property is intrusted, to be by him carried for hire and 
 delivered in another State, shall fraudulently convert the same to his own use, 
 before such delivery, whether the act of conversion be in this State or in 
 another. State v. Haskell, xxxiii. 127. 
 
 ENTAILED ESTATES. 
 See Devise, &c. 
 
 EQUITY. 
 
 I, JURISDICTION. 
 
 n. PRACTICE, 
 
 m. PLEADINGS. 
 
 IV. EVIDENCE. 
 
 V. GENERAL PRINCIPLES. 
 
 X. JURISDICTION. 
 
 1. Where an estate is devised on condition of, or subject to, the payment 
 of a sum of money, or where it was the testator's intention to make a specific 
 devise a fund for the payment of a legacy, such legacy is a charge upon the 
 devise ; and a court of equity may decree, that the person in whom the estate is 
 vested shall execute the trust. Bughee v. Sargent, xxvii. 338. 
 
 2. A court of equity, will assist a judgment creditor to discover and reach 
 the property of his debtor, fraudulently transferred, although not liable to be 
 attached upon a writ, or seized on execution, when the creditor has exhausted 
 his remedy at law, without having recovered his debt. Sargent v. Salmond, 
 xxTii. 539. 
 
 3. If one has received a conveyance fraudulent as to creditors, and the 
 creditor takes a judgment for double the amount justly due to him, equity will 
 not interfere to assist him in obtaining satisfaction of such judgment. Sar- 
 gent V. Salmond, xxvii. 539. 
 
 4. Nor wUl the Court interfere where land has been fraudulently conveyed, 
 if the grantee has received no benefit therefrom, and the title is still a matter 
 of controversy, and of litigation between such grantee and a claimant of the 
 property. Sargent v. Salmond, xxvii. 539. 
 
 5. This Court, as a court of equity, has power to compel the execution of 
 any trust, whenever equity requires it. Morton v. Souihgate, xxviii. 41. 
 Pratt. V. Thornton, xxviii. 355. 
 
EQUITY. 197 
 
 6. But in the case of testamentary trusts, the action of the Court is to be 
 .< subject to any provisions contained in the will •' and itis forb Jden to re^ 
 strain the exercise of any powers, given by the terms of the will. Morton 
 V. Southgate, xxviii. 41. , , x_ ^ 
 
 7 Where, by the will, a discretion is left to the judgment of the trustee, 
 it is' doubtful whether the Court can substitute its own judgment for that ot 
 the trustee. If it has the power, the proof should be of the fullest and clear- 
 est character. Morton v. Southgate, xxviii. 41. 
 
 8 A court of equity wiU aid an administrator of an insolvent estate, to 
 obtain property conveyed by the intestate to defraud his creditors, for the 
 purpose of appropriating the same to the payment of the debts of the estate; 
 but it will not aid one or more creditors of said estate. Caswell v. Caswell, 
 XXVIII. 232. Fletcher v. Holmes, xl. 364. 
 
 9. The plaintiff in equity must exhaust his legal remedies to obtain his 
 object, before equity can aid him. Caswell v. Caswell, xxviil. 232. Flach- 
 er V. Holmes, xi. 364. 
 
 10. To reach property fraudulently conveyed, by a process in equity, it 
 should appear that a judgment has been obtained, which cannot be impeach- 
 ed by the party to be affected by the relief sought ; and that every lawful ex- 
 pedient has been done to obtain satisfaction of the same. Caswell v. Gas- 
 well, xxTiii. 232. Fletcher v. Holmes, XL. 364. 
 
 11. When a party has materially improved an estate, under a belief, rea- 
 sonably entertained, that he is the owner of the land, equity will aid the true 
 owner to enforce his title, only on condition that such innocent person shall 
 be fully compensated for the benefit conferred upon the owner. But it cannot 
 be done to the prejudice of the owner. Pratt v. Thornton, xxvili. 355. 
 
 12. If the owner of land contracted to be conveyed, without fraudulent in- 
 tent, after an attachment thereof, conveys the same to a third person, who 
 takes it to defraud creditors of the debtor, a bill in equity may be maintained 
 by the purchaser of the debtor's interest against the ftaudulent grantee, to 
 
 obtain a conveyance, without joining the original owner. Whitmore v. 
 
 Woodward, xxtiii. 392. 
 
 13. The authority of this Court to issue writs of injunction, ia limited to 
 the equity jurisdiction, given by the statute. Smith v. Ellis, xxix. 422. 
 
 14. While, between the joint owners of a vessel, no settlement has been 
 made of her disbursements and earnings, and no balances have been ascertained 
 and agreed upon, one part owner cannot maintain against another an action 
 for his proportion of the net avails, although the vessel has been lost at sea. 
 The usual process for such an adjustment is at equity. Maguire v. Pingree, 
 
 XXX. 508. 
 
 15. If one purchases land, having knowledge of a previous contract by the 
 grantor, to convey the same land to another, equity wUl compel the purchaser 
 to convey the land in the same manner as would be required of his grantor. 
 Foss V. Haynes, xxxi. 81. 
 
 16. If the design of such purchase was to place the land beyond the reach 
 of the person entitled to the conveyance, and thereby to defeat his rights, a 
 court of equity has jurisdiction on the ground of fraud. Foss v. Haynes, 
 
 XXXI. 81. 
 
 17. The Court has jurisdiction, in equity, brought by a judgment creditor, 
 which charges that the judgment debtor, one of the defendants, had fraudu- 
 
198 EQUITY. 
 
 lently, and without consideration, transferred his property to the other, under 
 an agreed purpose to defraud the plaintiff. Hartshorn v. Eames, xxxi. 93. 
 
 18. If personal property has been conveyed for the purpose of deterring 
 creditors of the vendor from attaching it, and concurred in by the vendee, it 
 is a fraud, the remedy for vyhich is equity. Hartshorn v. Eames, xxxi. 93. 
 
 19. If a person purchases land from one who had previously conveyed the 
 same in mortgage, and then sells the same at different times, in separate par- 
 cels, to several purchasers, the portion last conveyed, if of sufficient value, 
 may become chargeable, in equity, with the whole mortgage debt. Sheperd 
 v. Adams, xxxii. 63. 
 
 20. And where, in such case, the last sold portion was of sufficient value 
 to discharge the mortgage, and the purchaser thereof bought in the mortgage 
 debt, took an assignment of the mortgage, and foreclosed the same ; and then, 
 under a claim of title to the whole tract, released to the purchaser of the first 
 sold portion the assignee's right in this portion, upon being paid a sum of 
 money : — Held, that said releasee could not recover back, in an action at law, 
 the money, though paid under a belief that the releasor, when giving the re- 
 lease, had title to the whole tract ; but that his remedy was in equity. Shep- 
 erd V. Adams, xxxii. 63. 
 
 21. The equity powers of this Court extend to the correction of mistakes 
 in the christian names of legatees in a will. Wood v. White, xxxii. 340. 
 
 22. And in cases of waste, is confined to. cases of technical waste; cases 
 in which there is a privity of estate. Leighton v. Leighton, xxxii. 399. 
 
 23. Rights, claimed in cases in which'the time agreed upon for the pay- 
 ment of money is not of the essence of the contract, can be enforced only in 
 equity. Hill v. Fisher, xxxiv. 143. 
 
 24. Whatever rights are acquired by an auction purchase, under an attach- 
 ment of an obligee's or his assignee's interest in a conditional bond for the 
 conveyance of real estate, can be vindicated only by process in equity. 
 Houston v. Jordan, xxxv. 520. 
 
 25. The grantor and grantee of land by a deed in form of a warranty, hut 
 by legal intendment merely an equitable mortgage, after the discharge of the 
 mortgage, may be" compelled in equity to release the estate to a person who 
 had derived, under the grantor, a title legally subordinated only to such 
 mortgage. Howe v. Bussdl, xxxvi. 115. But vide Eqtjity, 40. 
 
 26. A biU in equity is not the proper process to bring the proceedings of 
 selectmen, city councils, or county commissioners, in laying out streets, &c., 
 before this Court, to obtain a decision whether such proceedings are in con- 
 formity to law. Baldwin v. Bangor, xxxvi. 518. 
 
 27. Where a party, in possession of land under a contract with the owner, 
 has paid the purchase money, the land is held in trust for the benefit of the 
 party in interest, and his rights may be obtained by proceedings in equity. 
 Eoxhury v. Huston, xxxvii. 42. 
 
 28. A second assignee, of an equitable title to real estate, is authorized to 
 maintain a bill of equity in his own name, against one holding the same by a 
 fraudulent title, to compel a conveyance. Freeman v. Weld, xxxTlll. 813. 
 
 29. Where such assignee derives his interest by virtue of a levy, a deed to 
 him of the land levied on, from the one holding the equitable title under such 
 levy, is sufficient, without an assignment of the judgment. Freeman v. Weld, 
 xxxTiii. 313. 
 
EQUITY. 199 
 
 30 Upon the refusal of the promisor to fulfil a written agreement to convey 
 real estate, the administratrix of the promisee may maintain a bill in equity 
 for specific performance, or an action at law for damages. Godfrey v. Vwi- 
 nell, XL. 94. 
 
 31 This Court has not general chancery powers. It has power, underthe 
 statute, to compel the specific performance of contracts in witing, made since 
 Feb. 10, 1818. Eayford v. Dyer, xl. 245. 
 
 32. A bill not falling within the provisions of the statute, must be dis- 
 missed. Eayford v. Dyer, xl. 245. Woodward v. Cowing, xli. 9. Y. & 
 G. B. B. Co. V. Myers, xli. 109. 
 
 33. Where an administrator attempts, through equity, to reach the avails 
 of property belonging to the estate, fraudulently conveyed, it must appear : — 
 
 1st. That the suit is for the benefit of all the creditors whose claims are 
 established : — 
 
 2d. That the creditors have obtained judgment, or that their claims have 
 been allowed by the commissioners of insolvency, and not objected to by the 
 administrator : — 
 
 3d. That the administrator has availed himself of the provisions of the law 
 for citing before the Probate Court, the suspected parties : — 
 
 4th. That he has brought a suit at law for the recovery of the property so 
 conveyed : — and — 
 
 5th. That he, or those whom he represents, has exhausted their remedy 
 against the parties for aiding or assisting in fraudulently concealing the pro- 
 perty of the estate. Fletcher v. Holmes, xl. 364. 
 
 34. The power of this Court to hear and determine in equity all cases of 
 partnership, where the parties have not a plain and adequate remedy at law, 
 is conferred by statute, and to that alone, the Court must look for its authori- 
 ty. Woodward v. Cowing, xii. 9. 
 
 36. If a person, having a claim to land, and, with a full knowledge of his 
 rights, suffers another in his presence, without making known his claim, to 
 purchase of a third party, and expend money on the land, under an errone- 
 ous impression that he is acquiring a good title, he cannot, afterwards, in equi- 
 ty, enforce his legal rights against such purchaser. Dixfield v. Newton, xli. 
 221. 
 
 37. WhUe a man is legally compos mentis, though of weak mind, neither 
 courts of law or equity will inquire into his wisdom, or want of it, in dispos- 
 ing of his property. Sill v. Nash, xli. 585. 
 
 38. Where the parties in a bond, for the conveyance of real estate, agreed 
 with the defendant, by parol, that he might have an interest in one-half of 
 the bond, by making the fii-st payment, and also to hold the title of the other 
 half of the land, for security for money loaned them to make the payments 
 for their moiety, by giving a bond to each of them to convey, by deed, one 
 quarter of the premises on being reimbursed for his advances ; and such pay- 
 ment was made, and the title to the land transferred to the defendant ; in a 
 suit in equity, to compel performance of said contract : — Held, that this 
 Court had no jurisdiction to enforce it. Hunt v. Boherts, xl. 187. 
 
 39. A written contract, by which one agrees to do a certain act for the 
 benefit of another, or to pay a certain sum, as he may elect, is not a case 
 within the jurisdiction of this Court, as a court of equity ; there being an 
 adequate remedy at law. Fisher v. Shaw, xlii. 32. 
 
 40. From the limited equity powers of this Court, a deed, absolute and 
 unconditional in its terms, cannot be regarded as a mortgage, although, in 
 
200 EQUITY. 
 
 fact, made to secure the payment of a loan. Bichardson v. Woodbury, xliii. 
 206. 
 
 41. Bills whicli seek a discovery only, in aid of an action at law, cannot 
 be entertained by this Court, as its jurisdiction is limited by statute to cases 
 in which it can give relief, and to those in which the power to require a 
 discovery is specially given. Appleton, J., non-concurring. Warren v. 
 Baker, xliii. 570. 
 
 42. It is well settled, that relief consequent upon discovery ought not to 
 be given, when the most appropriate proceeding to ascertain the extent of the 
 relief is by the verdict of a jury. Warren v. Baker, xliii. 570. 
 
 II. PRACTICE. 
 
 43. The rules of set-off, in courts of general chancery jurisdiction, cannot 
 prevail in this State, when at variance with our statute provisions on that 
 subject. Smith v. Ellis, xxix. 422. 
 
 44. A compensation in damages, for the breach of an agreement to convey 
 real estate, is not regarded as adequate relief; but the Court will universally 
 decree a specific performance. Foss v. Haynes, xxxi. 81. 
 
 45. Though a defendant in equity is not bound to criminate himself, or 
 furnish evidence, by which a criminal accusation can be sustained, he may 
 be compelled to make a discovery of any act, which does not amount to a 
 public offence, or an indictable crime, although it may be one of great moral 
 turpitude. Foss v. Haynes, xxxi. 81. 
 
 46. Where real estate, to -W^hich the fraudulent debtor had only an equita- 
 ble title, is transferred by his procurement to another, cognizant of the design, 
 it cannot be levied by a creditor. But, if the creditor's execution is returned 
 nulla hona, a suit in equity, against the fraudulent grantee, will give him a lien 
 upon the avaUs of it. Hartshorn v. Fames, xxxi. 93. 
 
 47. Upon a bill in equity, praying for an injunction, an Act of-*he Legis- 
 lature will not be adjudged unconstitutional, on the preliminary hearing, and ■ 
 before an examination into the general merits of the bill. And it was held 
 that, until the general merits should be examined, the injunction must be 
 denied. Deering v. T. & G. R. R. Co., xxxi. 172. 
 
 48. The obtaining of a conveyance of land upon a verbal promise, that the 
 purchaser would subsequently secure the purchase money by a mortgage, and 
 a refusal so to do, are not sufficient for enjoining the purchaser from selling 
 the land, unless some fraudulent or deceptive practice were used to obtain the 
 conveyance. Ellsworth v. Starbird, xxxii. 176. 
 
 49. Where, in a conveyance of land, a boundary is described in the lan- 
 guage intended to be used, though under a misapprehension as to its con- 
 struction and effect, a court of equity can make no correction. Farley v. 
 Bryant, xxxii. 474. 
 
 50. When a plaintiff in equity, to obtain relief, must have a decree against 
 a defendant, he cannot use the testimony of that defendant, against the other 
 defendants. Farley v. Bryant, xxxii. 474. 
 
 51. A defendant in equity cannot use a co-defendant as a witness, to 
 prevent the obtaining of a decree against them both. Farley v. Bryani, 
 XXXII. 474. 
 
 52. To a bill in equity, setting forth the facts upon which the plaintiffs 
 relied, together with the law, three of the defendants did not appear ; three 
 
EQUITY. 201 
 
 others made no answer ; and the remaining thirteen filed their answers, and 
 agreed with the plaintiffs to submit the action, with its subject matter, to 
 referees. On motion to accept the award : — Held, — 
 
 That those who agreed to the submission and were heard, knowing that 
 others had not concurred, waived their objection to the non-concurrence ; — 
 and — 
 
 That it was competent for the referees to attach to the facts proved their 
 legal consequences, although at variance with the law alleged in the bill. 
 Smith V. Virgin, xxxiii. 148. 
 
 54. In equity, all persons in interest, and within the jurisdiction, and capa- 
 ble of being parties, must be made such, before the decree. Miller v. Whit- 
 tier, XXXIII. 521. Bailey v. Myrich, xxxvi. 50. 
 
 55. At the hearing upon bill, answer and proof, one in interest, who has 
 never appeared or been cited to appear, may be summoned in and made a 
 party, upon motion, and without a supplemental bill. And the terms, upon 
 which such motion wUl be granted, may be adjudged at a subsequent stage. 
 Miller v. Whittier, xxxiil. 521. 
 
 56. If the answer of the mortgagee shows information to have been re- 
 ceived by him from the mortgager, that the right of redemption has been 
 assigned to a third person, such third person must be made a party. Bailey 
 v. Myrich, xxxvi. 50. 
 
 57. In cases of exceptions to a master's report on a bill in equity, it belongs 
 to the excepting party to open and close.' Howe v. Russell, xxxvi. 115. 
 
 58. It is unusual to allow an amendment to the defendant's answer ; and 
 such amendment will not be allowed, if it introduce new ground of defence, 
 existing and known to the defendant, when he filed his answer. Howe v. 
 Bussell, XXXVI. 115. 
 
 59. A party claiming land under a tax title, must prove the facts necessary 
 to establish its validity in equity as well as at law. Howe v. Bussell, xxxvi. 
 115. 
 
 60. A master in chancery, commissioned to ascertain the amount due upon 
 an outstanding mortgage of land, has no jurisdiction to adjudicate upon the 
 titles to the estate mortgaged. Howe v. Bussell, xxxvi. 115. 
 
 61. His adjudication, upon facts submitted to' him, is presumed to be cor- 
 rect. And to set it aside, or reconsider it, for an alleged mistake or abuse of 
 authority, it must be clearly shown that such wrong existed, and that equity 
 requires its correction. Howe v. Bussell, xxxvi. 115; 
 
 . _ 62. He is not bound to report the evidence. And his errors of computa- 
 tion may be corrected by the Court, without a re-commitment, either before 
 or after the confirmation of his report. Howe y. Bussell, xxxvi. 115. 
 
 63. The adjudication of the Judge, at the Nisi Prius hearing, as to the facts, 
 is conclusive. Gilmore v. Patterson, xxxvi. 544. Morris v. Day, xxxvii! 
 386. Dwinel v. Perley, xxxviii. 509. 
 
 64. Exceptions to the report of a master, to avail, must either be supported 
 by the special statements in the report, or by the production of the evidence 
 on which they rest. Miller v. Whittier, xxxvi. 577. 
 
 65. When an agent, in the possession and improvement of an estate, neg- 
 lects to keep an accurate account of the income and expenditures thereof the 
 mastermay reject the account presented by the trustee, and exercise a sound 
 discretion upon the whole evidence before him, in charging the trustee with 
 
 26 
 
202 EQUITY. 
 
 the income, and allowing him such charges and disbursements, as shall appear 
 reasonable. Miller v. Whittier, xxxvi. 577. 
 
 66. Where parties to a bill, at the time of making their contract, recog- 
 nized the existence of a debt due fi:om one to the other, the consideration of 
 that debt cannot afterwards be a subject of inquiry. Miller v. Whittier, 
 XXXVI. 577. 
 
 67. In equity, the facts proved, the questions of law arising thereon, the 
 decision of the same, and the decree of the presiding Judge, must all be re- 
 ported. Morris v. Day, xxxvii. 386. 
 
 68. No question of law, not arising out of the facts proved and reported, 
 can be argued or decided by the Court. And whether the decree of the pre- 
 siding Judge shall be affirmed, or any different order made, must be deter- 
 mined from the facts proved and reported. Morris v. Day, xxxvii. 386. 
 Dwinel v. Perley, xxxyiii. 509. 
 
 69. When the respondent is attempting to enforce the rights of an owner 
 of the land in controversy, he may be required to release all his claims thereto, 
 although he may have previously conveyed them to a third person. Dwinel 
 V. Perley, xxxviii. 509. 
 
 70. Where the claims set up by one party are resisted on the ground of 
 fraud, and the Court judicially determine in favor of such claims, and the 
 case is sent to a master to find the amount due, he cannot reexamine the 
 question of fraud. Gilmore v. Gilmore, XL. 50. 
 
 71. He can only consider such legal evidence, had at the hearing, as is 
 material to the question submitted to him. Gilmore v. Gilmore, xx. 50. 
 
 72. Before a court of equity will interfere to afford relief, as by declaring a 
 conveyance void for fraud, plaintiff must show that he has an interest in the 
 estate conveyed, by levy or otherwise, or in other subject matter to which the 
 bill relates. Dana v. Haskell, xxi. 25. 
 
 73. A bill in equity will not be dismissed for want of prosecution, where 
 the delay occurs after the appointment of a master to take the testimony, and 
 before his report, when the party complaining has made no effort to obtain an 
 earlier publication of the proofs. Warren v. Shaw, xliii. 429. 
 
 74. During such time, the case is suspended in Court ; and if the master 
 improperly delays to report, it is no more the fault of the plaintiff than of 
 the defendant. Warren v. Shaw, xliii. 429. 
 
 75. And where the defendant filed a rule to show cause why the bill should 
 not be dismissed for want of prosecution, it may well be doubted, whether 
 the subsequent prosecution of the suit, without objection, may not be consid- 
 ered a waiver. Warren v. Shaw, xliii. 429. 
 
 See MOETGAGE, 10. 
 
 in. PLEADINGS. 
 
 76. A demurrer cannot be good as to a part which it covers, and bad as 
 to the rest ; the whole must stand or faU. Burns v. Hobhs, xxix. 273. 
 
 77. In a bill for discovery and to set -aside a mortgage, which the plaintiff 
 alleges was taken by the defendant with intent to defraud the plaintiff, the 
 defendant cannot, by demurring to the bill, avoid answering and disclosing 
 the time when his mortgage was executed ; whether he claims to hold the 
 
EQUITY. 203 
 
 land by virtue of it ; or disclosing, and, if in his power, producing the note 
 secured by the mortgage ; or from stating when, where, and in whose presence 
 and for what, the note was given; or from whom the consideration was 
 received, and to whom paid. Burns v. Holls, xxix. 273. 
 
 78. It seems, a bill, which alleges that land conveyed by a deed without 
 consideration was taken in trust by the grantee, need not set forth the manner 
 in which the trust is to be proved ; and that, therefore, a demurrer on such 
 grounds may be set aside to let in proofs of the trust. Philbrooh v. Delano, 
 XXIX. 410. 
 
 79. After the assignment of all interest in a chose in action, upon which a 
 claim in equity is founded, the bill must be brought in the name of the 
 assignee ; and the assignor need not be a party. Sashell v. Hilton, xxx. 
 419. Miller v. Whittier, xxxii. 203. Moor v. Veazie, xxxii. 343. 
 
 80. A total want of legal or equitable interest in the plaintiff in equity, is 
 fatal to the bill; and the objection may be taken by demurrer, or at the 
 hearing. Haskell v. Hilton, xxx. 419. 
 
 81. "Where an assignment of real estate has been made for the benefit of 
 creditors, it is not requisite, in a biU in equity against the assignee relative 
 to the property assigned, that the creditors should be made parties. Johnson 
 V. Gandage, xxxi. 28. 
 
 82. A bill is not rendered midtifarious, by joining two good causes of 
 complaint, growing out of the same transaction, when all the defendants are 
 interested in the same claim of right, and when the relief asked for, in relation 
 to each, is of the same general character. Foss v. Haynes, xxxi. 81. 
 
 83. A bill, which charges that the judgment debtor, one of the defendants, 
 had fraudulently, and without a valuable consideration, transferred his pro- 
 perty to the other, under an agreed purpose between them to defraud the 
 plaintiflf, is not demurrable. Hartshorn v. Eames, xxxi. 93. 
 
 84. Where a fraudulent transfer is alleged to havfe taken place at a partic- 
 ular time, it is unnecessary to aver, that the fraud continued and existed at 
 the time of filing the biU ; but if the property, subsequently to the fraud, 
 went into the hands of lona fide creditors, that must appear in defence. 
 Hartshorn v. Eames, xxxi. 93. 
 
 85. Whether a fraud can be so purged, in that way, as to deprive a credi- 
 tor of his remedy; quere. Hartshorn v. Eames, xxxi. 93. 
 
 86. To authorize the Court to reform a deed upon the allegation of a mis- 
 take, the mistake must be precisely alleged and clearly proved. Farley v. 
 Bryant, xxxri. 474. 
 
 87. A tenant of one who holds land subject to the maintenance of a per- 
 son, in accordance with a bond, is properly made a party to a bill, brought by 
 such person to enforce her claim. Pike v. Collins, xxxiii. 38. 
 
 88. In a bill to reform a conveyance, for accident or mistake, the persons, 
 under whom the defendant claims by deeds of warranty, made since the acci- 
 dent or mistake is alleged to have occurred, must be made parties. Davis v. 
 Sogers, xxxiii. 222. 
 
 89. The bill is defective, unless it contain an allegation that the grantees 
 m such deeds purchased with notice of the mistake or accident. Davis v. 
 Bogers, xxxiii. 222. 
 
 90. Where the plaintifl" was jointly interested with another in a bond for 
 the conveyance of real estate, the conditions of which had been fulfilled, and 
 his assignee in bankruptcy, under a Hcense, had sold his interest to defend- 
 
204 EQUITY. 
 
 ant, who had obtained a deed from the obligors, and plaintiff claimed that 
 his interest in the bond had been previously assigned as security to a creditor, 
 (from whom he derived a subsequent title,) and that no right had vested in 
 his assignee in bankruptcy : — Held, that unless his bill, seeking to compel a 
 conveyance of such half, sets forth the assignment to his creditor to have 
 been perfected lefore his petition to be decreed a bankrupt, it cannot be 
 maintained. Perley v. Dole, xxxviii. 558. 
 
 91. The rules of this Court, in chancery practice, require the bill to set 
 forth clearly, succinctly and precisely, the facts and causes of complaint. But 
 amendments may be allowed on terms. Boynton v. Brastow, xxxviii. 577. 
 
 92. The general rule in equity is, that all persons legally or beneficially 
 interested in the subject matter of a suit, should be made parties thereto. 
 Morse v. M. W. P. & M. Go., xlii. 119. 
 
 See Action, 6. 
 
 Assignment, 10. 
 EariTT, 94, 95, 96. 
 
 IV. EVIDENCE. 
 
 93. Where, by the will, a discretion and option is given, to be exercised ac- 
 cording to the judgment of a trustee, it is very doubtful whether the Court can 
 substitute its own judgment for that of the trustee. If it can, the proof should 
 be of the fullest and clearest character. Morton v. Southgate, xxviii. 41. 
 
 94. In a suit in equity, for the purpose of avoiding a conveyance by the 
 deceased debtor, the grantee may impeach the judgment, which is the founda- 
 tion of the suit, if such judgment was unlawfully obtained ; and this may he 
 done by plea and proof. Caswell v. Casivell, xxtiii. 232. 
 
 95. And if the judgment has been laid before the commissioners of insol- 
 vency and allowed, and their report has been accepted, such report may be 
 impeached in the same manner. Caswell v. Caswell, xxviii. 232. 
 
 96. Where an action was demurred from the District Court to this Court, 
 and an erroneous judgment was entered for the plaintiff by consent, when on 
 the pleadings, which by agreement might be waived, the defendant was enti- 
 tled to judgment ; and it was entered in this Court, and the action continued, 
 and then dismissed because no legal recognizance had been taken, and there- 
 upon judgment was rendered in the District Court for the plaintifi', without 
 any appearance for, or notice to, the defendant, or any change in the plead- 
 ings : — Held, such judgment might be impeached by one injuriously affected 
 thereby, and not a party or privy thereto. Caswell v. Caswell, xxviii. 232. 
 
 97. The lapse of many years between a conveyance of improved land, and 
 an application to have the deed reformed, for an alleged mistake in the de- 
 scription of the land, would impose a serious dissuasive upon the Court. But 
 in relation to unimproved lands, and especially where the occupation of the 
 grantee and his assigns has indicated no claim under the description, it would 
 be otherwise. Farley v. Bryant, xxxii. 474. 
 
 98. Proofs of mistakes in deeds may be established by parol. Farley v. 
 Bryant, xxxii. 474. 
 
 99. In such cases, the evidence from applying the description in the deed 
 to the marks, monuments and reservations upon the face of the earth, thereby 
 to discover its agreement or disagreement therewith, is entitled to great con- 
 sideration. Farley v. Bryant, xxxii. 474. 
 
EQUITY. 205 
 
 100. So is the fact whether the grantees and their assigns have or have 
 not, in their management of the land, conducted as if considering the dis- 
 puted land to have been yet unconveyed ' by the deed to them. Farley v. 
 Bryant, xxxii. 474. 
 
 101. Though the proof, to overcome an answer in chancery, must be equiv- 
 alent to the testimony of two credible witnesses, yet it need not be direct 
 and positive. Farley v. Bryant, xxxii. 474. 
 
 102. Allegations, in an answer to a bill in equity, are not of themselves 
 evidence, unless responsive to the biU. Bucli v. Stoazey, xxxv. 41. Gil- 
 more V. Patterson, xxxvi. 544. 
 
 103. A party, claiming land under a tax title must prove the facts neces- 
 sary to establish its validity in equity as weU as law. Howe v. Bussell, 
 XXXVI. 115. 
 
 104. So far as a defendant's answer is responsive to the bill, or explanatory 
 of the responsive matter in the biU, it is evidence. Gilmore v. Patterson, 
 XXXVI. 544. 
 
 105. It is a general rule, that the answer of one defendant is not evidence 
 for his co-defendant. Gilmore v. Patterson, xxxvi. 544. 
 
 106. The admissions of one co-partner, with reference to the legitimate 
 business of the co-partnership, are deemed to be the admissions of each and 
 all of its members, even when found in an answer to the bill under con- 
 sideration by the Court. Gilmore v. Patterson, xxxvi. 544. 
 
 V. GENERAL PRINCIPLES. 
 
 (a) Tkust. 
 
 (b) Ekatjd. 
 
 (c) Bills for specipio PEBPOKMiNOE, 
 (d^ Bills to bedeem. 
 
 (e) OlHEE CASES. 
 
 (a) Trust. 
 
 107. No trust, of which a court of equity can take cognizance, results 
 merely from the want of consideration for a deed. Philbrook v. Delano, 
 XXIX. 410. 
 
 108. Mere want of consideration will not create a resulting trust. Phil- 
 Irooh V. Delano, xxix. 410. 
 
 109. Where the several debts, secured by a mortgage, have become the 
 property of different persons, and the assignee of the mortgage has foreclosed, 
 he holds the property, with the rents and profits thereof, in trust for the 
 holders of the debts, according to their respective amounts. Johnson v. 
 Vandage, xxxi. 28. 
 
 110. Such a mortgage, and a part of the notes secured by it, were assigned 
 to the defendant, who foreclosed. When taking the assignment, he knew 
 that one of the notes was held by s.not\ist:—Held, that such holder could 
 recover, m equity, his proportionate part of the mortgaged property, and of 
 Its rents and profits. Johnson v. Candage, xxxi. 28. 
 
 111. The execution of such a mortgage, and notes, is a sufficient compli- 
 ance with c. 91, § 31, R. S., 1841, that trusts concerning lands shaU be 
 created and manifested in writing. Johnson v. Candage, xxxi. 28 
 
206 EQUITY. 
 
 112. After the death of the husband, and a foreclosure, by the administrator 
 of the mortgage, given to secure a bond to the husband and wife for main- 
 tenance, the administrator, and those holding by purchase under him, will 
 hold the land, charged with the maintenance of the widow, in proportion to 
 their respective parts. The liabilities of such holders commence from the 
 time of their respective purchases. Pike v. Collins, xxxiii. 38. 
 
 113. The husband may be trustee of the wife, and the trust may be en- 
 forced, as if he were a stranger ; and his representatives are subject to the 
 same liability. Pike v. Collins, xxxiii. 38. 
 
 114. If part of a debt, secured by mortgage of land, be held in trust, the 
 trust will not be dislodged, by a written agreement of the trustee " to account 
 and pay over, to the cestui que trust, his proportion of any moneys which may 
 be received upon the debt." And such teust is assignable, and may be en- 
 forced in equity by the assignee. Buck v. Stuazey,'^:&.:K.Y. 41. 
 
 115. Where one having, as cestui que trust, the right to compel a conveyance 
 of land to him by his trustee, becomes himself by contract the trustee of 
 another in the same land, he is compellable to convey to his cestui que trust, 
 as soon as he shaU obtain a conveyance. Buck v. Swazey, xxxv. 41. 
 
 116. To avoid circuity of action, the &st trustee maybe compelled to con- 
 vey directly to the last cestui que trust. And such a conveyance will protect 
 the first trustee from the claims of his immediate cestui que trust. Buck v. 
 Swazey, xxxv. 41. 
 
 117. A trustee of real estate, when required by a court of equity to convey 
 to the cestui que trust, is bound to insert a covenant of warranty against per- 
 sons claiming under himself. Dwinel v. Veam,e, xxxti. 509. 
 
 118. Where there is a fault on the part of the owner in not complying 
 with his contract, although no proper account has been kept by the trustee, 
 he is not chargeable with the utmost that might have been made out of the 
 estate. Miller v. Whittier, xxxti. 577. 
 
 119. Upon the sum acknowledged to be due at a time specified, between 
 the cestui que trust and trustee, interest may legally be allowed. Miller v. 
 Whittier, xxxvi. 577. 
 
 See MoBTGAGE, 132. 
 Tbtjsxs. 
 
 (b) Fraud. 
 
 120. Although one of the defendants, when purchasing property, was a 
 iona fide creditor of the other defendant, from whom he purchased it, yet, if 
 bis real object was, not to obtain payment of his debt, but to give the color- 
 able appearance of a sale, the purchase would be fraudulent in equity, as 
 against creditors. Hartshorn v. Eames, xxxi. 93. 
 
 121. If personal property has been conveyed for the purpose, concurred m 
 by the vendee, of deterring creditors of the vendor from attaching it, such 
 conveyance is fraudulent, and the remedy is in equity. Hartshorn v. Ewmes, 
 XXXI. 93. 
 
 122. Any one of the purchasers of land by the same deed, though in un- 
 eq\ial proportions, who have given their several notes for each one's share of 
 the purchase money secured by a joint mortgage of the tract, without the con- 
 currence of the others, may set aside the mortgage as to himself, by bill m 
 
EQUITY. 207 
 
 equity, if the purchase of the land was procured by fraudulent representations 
 of the' grantor. Moulton v. Low, xxxii. 466. 
 
 123 But the relations between him and the other purchasers could not au- 
 thorize him to prosecute biUs in their names, and without their consent, to 
 rescind the trade as to them. Moulton v. Low, xxxii. 466. 
 
 See MoETGABE, 132. 
 Feaud. 
 
 (c) Bills for specific performance. 
 
 124. Where, in a bond, conditioned to convey land upon the payment of a 
 note, there was inserted the clause : — " in case the obligee shall neglect or 
 refuse to pay the note according to its tenor, the bond shall be void ;" and it 
 was proved that the obligee was intending to pay it, but, that before, and at, 
 and a few weeks after, the pay-day, sickness prevented his attending to any 
 business affairs, and that, upon his recovery, he sought permission of the 
 obligor to pay it; — Meld, a specific performance should be decreed, a tender 
 having been made prior to the suit. Jones v. Bobbins, xxix. 351. 
 
 125. A compensation in damages, for the breach of an agreement to convey 
 real estate, is not regarded as adequate relief ; but the Court will universally 
 decree a specific performance. Foss v. Haynes, xxxi. 81. 
 
 126. One, bound to convey land upon the performance by another of 
 certain precedent conditions, exonerates the obligee from the performance, 
 prior to instituting a bill for relief, by purposely incapacitating himself to 
 make the conveyance. Miller v. Whittier, xxxii. 203. 
 
 127. If a person, after having purchased a mortgage debt, receive funds 
 from another person, and contract in vsriting to pay him a specified part of 
 the proceeds of the debt when received, and in manner as received, a specific 
 performance may be enforced in equity, although there may be a remedy at 
 law. Buck V. Swazey, xxxv. 41. 
 
 128. An agreement in writing, to procure for the plaintiff a good and suffi- 
 cient deed of land, the title of which is not in the respondent, which was 
 known to the plaintiff, lays no foundation for the Court to decree a specific 
 performance. Hill v. Fisk, xxxviii. 520. 
 
 129. Nor in such case will a court of equity retain jurisdiction to give 
 compensation in damages for the breach. Hill v. Fisk, xxxvill. 520. 
 
 130. The specific performance of a written contract, concerning land, 
 cannot be decreed in a court of equity, if the description of the land is so 
 vague and uncertain as to require parol evidence to ascertain its boundaries. 
 Jordan v. Fay, xi. 130. 
 
 131. A written agreement to sell certain tracts of land, signed by each 
 party thereto, remaining in the hands of the vendor, with a further agreement 
 by him to deliver to the other a duplicate, on payment of a certain sum, at a 
 fixed time, is valid in equity, on payment thereof according to the terms ; and 
 on fulfillment of its conditions by the vendee, specific performance may be 
 required. Hull v. Nolle, XL. 459. 
 
 132. This Court has equity jurisdiction in all suits to compel the specific 
 performance of contracts in writing, &c., when the parties have not a plain 
 and adequate remedy at law. Fisher v. Shaw, xlii. 32. 
 
 133. If the contract appears only in the condition of a bond secured by a 
 
208 EQUITY. 
 
 penalty, the Court will act upon it as an agreement, and wiU not suffer the 
 party to escape from a specific performance by offering to pay the penalty. 
 Fisher v. Shaw, XLir. 32. 
 
 134. A bond for the payment of money, conditioned to be void on the pay- 
 ment of land, will be treated as an agreement to convey, and wUl be specific- 
 ally enforced as against the obligor. Fisher v. Shaw, xlii. 32. 
 
 135. A., having become the assignee of a mortgage, and, by foreclosure 
 thereof, the sole owner of the mortgaged premises, agreed, by contract under 
 seal, to relinquish to B. all his title thereto, upon payment by B. of a certain 
 sum. No actual consideration was paid for the agreement, and it was after- 
 wards voluntarily surrendered to A. by B., for the reason that the latter was 
 notable to pay the amount required: — SeM, that the voluntary surrender 
 was void as against creditors, B. being at the time insolvent; and C, by the 
 seizure and sale of B.'s interest after such surrender, acquired a right to the 
 conveyance from A., which this Court, as a court of equity, will compel after 
 a proper tender. Neil v. Tenney, xlii. 322. 
 
 136. Where the prayer in a bill is, that reconveyance be ordered and de- 
 creed, although there may have been concealment and fraudulent representa- 
 tions on the part of the respondent in obtaining a conveyance ; yet, while the 
 complainants hold a bond, given in consideration of the same, they caniiot 
 sustain a bill for such reconveyance without having discharged, or having 
 offered to discharge, such bond. Nor until all the parties interested in the 
 estate and bond have been notified, and become parties to the suit. DocJcray 
 V. Thurston, xliii. 216. 
 
 137. A division of an estate, according to the hereditary rights of the heirs, 
 cannot be made in the absence of those whose rights are to be determined by 
 such division. Dockray v. Thurston, xliii. 216. 
 
 (d) Bills to redeem. 
 
 138. A bill in equity to redeem real estate, levied on execution, must be 
 commenced in season to have the amount ascertained and brought into Court, 
 before the year, allowed for the redemption, has expired. Boothhy v. B. C. 
 Bank, xxx. 361. 
 
 See MoKTGAGE, 94-110. 
 
 (e) Other cases. 
 
 139. In a bond or written agreement to convey land upon the payment of 
 a note, time is not considered, in equity, to be of the essence of the contract, 
 unless it is so expressly agreed, or it follow from the nature and purposes of the 
 contract. Jones v. Bobbins, xxix. 351. Hull v. Noble, XL. 459. 
 
 140. Generally, in such contracts, the time of payment is regarded as 
 formal, and as meaning only that the purchase shall be made within a reason- 
 able time, and substantially according to the contract, regard being had to all 
 the circumstances. Jones v. Bobbins, xxix. 351. Hull v. Noble, XL. 459. 
 
 141. The clause: — " in case the obligee shall neglect or refuse to pay the 
 note according to its tenor, the bond shall be void," does not make time the 
 essence of the bond. Jones v. Bobbins, xxix. 351. 
 
 142. One, seeking relief from a forfeiture, must show, that circumstances, 
 
EQUITY. 209 
 
 ■whicli exclude the idea of willful neglect or of gross carelessness, have pre- 
 vented a strict compliance, or that it has been occasioned by the fault of the 
 other party, or that a strict compliance has been waived. Jones v. Bobbins, 
 XXIX. 351. Hull V. Noble, xi. 459. 
 
 143. Thus, proof of an intention to pay the note at its maturity, but the 
 sickness of the obligee, before, at, and a few weeks after, the pay-day, which 
 prevented his attending to any business, and that upon his recovery, he sought 
 permission of the obligor to pay it, was held sufficient excuse. Jones v. 
 Bobbins, xxix. 351. 
 
 144. A deed of land will not be reformed, upon a bill in equity, for a mis- 
 take in its boundaries, to the injury of one who has purchased of the grantee 
 in good faith, and without notice. Whitman v. Weston, xxx. 285. 
 
 145. If a person purchases land from one who had previously conveyed 
 the same in mortgage, and then sells the same, at different times, in separate 
 parcels to several purchasers, equity may charge the portion last conveyed, if 
 of sufficient value, with the whole mortgage debt. Sheperd v. Adams, 
 xxxii. 63. 
 
 146. One, bound to convey land upon certain conditions precedent, ex- 
 onerates the obligee from their performance, prior to instituting a biU for 
 relief, by purposely incapacitating himself td make the conveyance. Miller 
 V. Whittier, xxxii. 203. 
 
 147. By articles of agreement between members of an unincorporated as- 
 sociation, it was stipulated, that the capital stock should be divided into 
 shares ; that the shares should be transferable ; and that trustees should be 
 appointed, in whom all the property should vest in trust. Accordingly, trustees 
 were appointed ; purchased real and personal estate, and proceeded to the 
 transaction of business. Shares were from time to time transferred, until 
 twenty-nine-fortieths of them were held by one person: — Seld',tha.t a sale 
 by him, not of his shares, but of twenty-nine-fortieths of all the land and 
 property which had belonged to the company, was a dissolution of the associa- 
 tion ; and that those, who owned the shares at the time of the dissolution, 
 were entitled, according to the number of their shares, to aU the avails and 
 assets of the company, and liable to contribute, in the same proportions, to 
 all the debts of the company. Smith v. Virgin, xxxiii. 148. 
 
 148. After the payment is made to entitle the party to a duplicate, no de- 
 mand of it is essential to vindicate his rights under it. Hull v. Noble, XL 
 459. 
 
 149. It is a reasonable excuse for not fulfilling the conditions of a sale of real 
 estate, as to the time of payment, by the party seeking a specific perform- 
 ance, that a duplicate of the written contract was withheld from him by the 
 other party, after he was entitled to its possession. Hull v. Noble, xt. 459. 
 
 150. In equity, where there is a tenant in possession under a lease or 
 agi-eement, a person purchasing part of the estate must be bound to inquire 
 on what terms that person is in possession. Hull v. Noble, xl. 459. 
 
 151. To reform a levy duly recorded, and deeds consequent on the levy 
 thereby changing existing titles, would render the registry of deeds of little 
 value, and it cannot be done. Lumbert v. Hill, xli. 475. 
 
 152. In cases of relief, by correcting mistakes in the execution of instru- 
 ments, the party asking relief must stand upon some equity superior to that 
 ot the other party. If the equities are .equal, a court of equity is silent and 
 passive. Lumbert v. Hill, xli. 475. 
 
 27 
 
210 ERROR. 
 
 153. If a party trusts to an invalid contract, a court of equity can grant 
 him no relief against the other party for treating the contract as the law re- 
 gards it. Fisher v. Shaw, xiii. 32. 
 
 ERROR. 
 
 I. IN WHAT CASES IT WILL LIE. 
 n. PROCEEDINGS. 
 
 I. IN WHAT CASES IT WILL LIE. 
 
 1 . It is generally true that an erroneous judgment is to be avoided only by 
 a Virrit of error. Caswell v. Caswell, xxviii. 232. 
 
 2. Where an error is manifest upon the face of the proceedings, the judg- 
 ment is erroneous in law ; an error in law must appear by the record itself. 
 Smith V. Bhodes, xxix. 360. Valentine v. Norton, xxx. 194. McArthw 
 V. Starret, xiill. 345. 
 
 3. A judgment rendered against an administrator, within twelve months 
 from his assuming his trust, foi:. demands affected by the insolvency of the 
 estate, and not by way of appeal from the decision of the commissioners of 
 insolvency, is erroneous, and may be reversed. Smith v. Bhodes, xxix. 360. 
 
 4. Error wiE not lie to obtain relief from an illegal taxation of costs, when 
 assigned as error in law. Valentine v. Norton, xxx. 194. Mc Arthur v. 
 Starret, xiiii. 345. 
 
 5. When error is not apparent upon the record, it is one of fact. Valen- 
 tine V. Norton, xxx. 194. McArthur v. Starret, xliii. 345. 
 
 6. A judgment recovered by an administratrix, for the misfeasance of a 
 sheriff or his deputy, committed in the lifetime of her intestate, is reversible 
 on error. Valentine v. Norton, xxx. 194. 
 
 7. Where, upon a writ of error, it does not appear, but that the original 
 action might have been maintained, though there is error in the proceedings, 
 the judgment must be reversed, but a new trial will be ordered. Crawford 
 v. Howard, xxx. 422. 
 
 8. A judgment rendered against a corporation, after a dissolution of it by 
 an Act of the Legislature, is erroneous. Merrill v. Suffolk Bank, xxxi. 57. 
 Bankin v. Sherwood, xxxiii. 509. 
 
 9. Error does not lie to reverse a judgment of a justice of the peace, if 
 the plaintiff in error had an opportunity to appeal if he had jurisdiction. 
 Howard v. Hill, xxxi. 420. Jewell v. Brown, xxxiii. 250. 
 
 10. A denial to allow costs to the exact amount claimed, when some 
 amount is allowed, is not error in law. Beed v. Tay, xxxii. l73. 
 
 11. Want of legal service of the writ, is a sufficient cause for reversing a 
 judgment recovered on default. Wilton M. Co. v. Woodman, xxxii. 185. 
 
 12. Chapter 115, § 96, of R. S. of 1841, being prospective only, it was 
 not erroneous to allow cost in an action upon a judgment, commenced withm 
 the time when an execution might have been issued thereon, although such 
 
ERKOE, 
 
 211 
 
 action did not come to judgment untH after tte R. S. had taken effect. 
 TFit/iee V. Preston, XXXIII. 211. _ _ 
 
 13 A iudement may be reversed, when rendered by a justice of the peace, 
 of oneiunty^he defendant's residence being iix another county of the State. 
 Jewdl V. Brown, xxxni. 250. 
 
 14. lnindeUtatusa,svmp^it^yvo^ an account annexed, if the accoui^ an- 
 nexed is against a third person, and not against the defendant, it is error. 
 Jewell V. Brown, xxxiii. 250. . „ , j j 
 
 15 Error does not lie to reverse a judgment of the District Court, rendered 
 uiDon'default, if the action was in its nature appealable, and if no cause be 
 shown why the defendant did not appear and answer. Lord v. Fierce, 
 XXXIII. 350. 
 
 16 Since K. S. of 1841, have been in force, no judgment can be ' reversed 
 for any want of form which might have been amended. Lord v. i-ierce, 
 XXXIII. 350. 
 
 17 A judgment, rendered by a justice of the peace before the day at which 
 the defendant was summoned to attend, is erroneous and reversible. Lrosby 
 V. Boyden, xxxiii. 368. 
 
 18. A judgment against the accused under Act of 1851, c. 11, § 11, is re- 
 versible for error, if neither the complaint nor the judgment shows, that the 
 liquors were intended for sale in the city, town or place where they were kept 
 or deposited. Barnett v. State, xxxvi. 198. 
 
 19. The rule that a writ of error will not lie where an appeal might have 
 been taken without laches, does not apply to criminal cases. Barnett v. 
 State, XXXVI. 198. 
 
 20. A judgment may be reversed on writ of error, for an error of law or 
 fact ; but in either case, it must be shown that it was such an error as existed 
 without the fault, or legal capacity of the party injuriously aifected by it, to 
 prevent it. McArthur v. Starret, XLiii. 345. 
 
 II. PROCEEDINGS. 
 
 21. When errors of fact are assigned for the reversal of a judgment, a plea 
 of "in nulla est erratum," admits the truth of the facts assigned. Smith v. 
 Bhodes, xxix. 360. 
 
 22. When the error assigned is one of law, there is nothing upon which 
 the Court can act, except the transcript of the record. Documents and papers 
 filed in the case form no part of the record, unless incorporated into it. Val- 
 entine V. Norton, XXX. 194. Paul v. Hussey, xxxv. 97. Starhird v. Eaton, 
 xiil. 569. 
 
 23. If a judgment, recovered against a corporation, after its dissolution, has 
 been satisfied out of the estate of one who had been a stockholder in the cor- 
 poration, he is a privy in law to the judgment ; and, without joining the co- 
 stockholders, may bring a writ of error in his own name. Merrill v. Suffolk 
 Bank, xxxi. 57. Bankin v. SAerwood, xxxiii. 509. 
 
 24. Nothing which contradicts the record can be alleged as error. King 
 V. Bolinson, xxxiii. 114. Paul v. Hussey, XXXT. 97. 
 
 25. When, from the usual course of proceeding in court, the law allows a 
 departure under a prescribed condition, an assignment of errors, based upon 
 
212 ESTOPPEL. 
 
 the departure, must negative tlie performance of the condition. Dunlap v. 
 Atkinson, xxxiii. 265. 
 
 26. Proof that the condition was not performed, will not aid the defective 
 assignment. Dunlap v. Athinson, xxxiii. 265. 
 
 27. At common law, the joinder of errors of law and fact was not per- 
 mitted; but such joinder is now authorized by the Act of 1852, c. 269, § 3. 
 Starhird v. Eaton, xiii. 569. 
 
 ESTATES ON CONDITION. 
 See Grants by the sovekeign powee. 
 
 ESTATES TAIL. 
 
 See Devise. 
 
 ESTOPPEL. 
 
 I. BY DEED OB, OTHER SPECIALTY. 
 11. BY PAKOL, OR IN PAIS. 
 
 I. BY DEED OR OTHER SPECIALTY. 
 
 1. Where a mortgage of lands, of which the mortgager has no recorded 
 title, is made (and recorded) to him who is the absolute owner thereof by the 
 records, and the mortgagee assigns to another " all his right, title and inter- 
 est in and to the within mortgaged premises," and this assignment is also re- 
 corded ; such record must be regarded as notice of such assignment ; and 
 such mortgagee, and those under him, as after attaching creditors or purchas- 
 ers, are estopped to deny the title of the assignee by virtue of the mortgage. 
 Pierce v. Odlin, xxvii. 341. 
 
 2. Where land is conveyed by defendant to plaintiff, by deed of warrant)-, 
 and, at the same time, reconveyed in mortgage, with like covenants, to secure 
 the whole or a part of the purchase money ; and, afterwards, the plaintiff, 
 being evicted of a portion of the premises, sues the defendant upon his cov- 
 enant of warranty, the money secured by the mortgage stiU. remaining un- 
 paid : — Held, that the plaintiif is not estopped by the covenants in his mort- 
 gage from showing a defect in the defendant's title, or precluded thereby from 
 maintaining the action. Hardy v. Nelson, xxvii. 525. Brovm v. Staples, 
 XXVIII. 497. 
 
 3. Where two grantors conveyed land, by deed of warranty, without de- 
 
ESTOPPEL. 213 
 
 signating the manner in which it was held by them, and, one of the grantors 
 having died, his widow brought her action of dower in one half of the prem- 
 ises granted: — Held, that the grantee was estopped from denying, that the 
 living grantor was seized in severalty of a larger proportion, and the deceased 
 of a less one, than an undivided moiety. Stimpson v. Thomaston Bank, 
 xxviii. 259. 
 
 4. A covenant of warranty does not include an incumbrance which the 
 grantee, by an instrument of as high a nature as the deed, has engaged to 
 discharge ; and the grantee, cannot therefore, nor can a second grantee with 
 notice, enforce such covenant as an estoppel, against a covenant of war- 
 ranty, by himself, of the same premises to his grantor. Brown v. Staples, 
 XXVIII. 497. 
 
 5. Where a deed was made by an attorney, and the proprietor took back a 
 mortgage and notes, and the mortgage and notes did not refer specifically to 
 the deed, and contained nothing inconsistent with the attorney's want of au- 
 thority : — Held, that the mortgagee was not estopped to deny that the title 
 passed to the mortgager, by the attorney's deed. Spofford v. Hobbs, xxix. 
 148. 
 
 6. Where one has conveyed land by deed of warranty, a subsequently ac- 
 quired title will enure to the grantee ; and the grantor, and those claiming 
 under him, will be estopped to deny it. Pike v. Oalvin, xxix. 183. Crock- 
 er v. Pierce, xxxi. 177. Hill v. More, xi. 515. 
 
 7. If, however, the deed contain no covenant of warranty, it is otherwise, 
 unless by so doing, he is obliged to deny or contradict some fact alleged in 
 his former conveyance. Wems, J., dissenting. Pike v. Oalvin, xxix. 183. 
 Crocker v. Pierce, xxxi, 177. 
 
 8. Where the creditor levies upon land to which his judgment debtor had 
 no title, the debtor is not estopped to assert a subsequently acquired title. 
 Freeman v. Thayer, xxix. 369. Crocker V. Pierce, xxxi. 177. 
 
 9. A married woman, who joins her present husband in a conveyance of 
 real estate, by relinquishing her right of dower therein, is estopped to claim 
 dower in the same, under her former husband. Usher v. Bichardson, xxix. 
 415. 
 
 10. Soon after the giving of a mortgage of land, one B. claimed some in- 
 terest m the land, and conveyed to certain purchasers a few small pieces of 
 it. Some of his execution creditors, (whose rights the plaintiffs have,) levi- 
 ed his supposed life estate in the premises, and then recovered a judgment 
 for possession and mesne profits : — 
 
 While that suit was pending, the mortgager conveyed to said purchasers, 
 the smaU pieces above named ; and conveyed to B. the whole premises, taking 
 back from B. a mortgage. In a biU against the original mortgagees, and 
 against B., and also the mortgager and the persons who claimed the smaU lots 
 under B. : — Held, that the defendants were not estopped to deny that C. had 
 any interest m the land, when the first suit was commenced. Jackson v. 
 Mynck, xxix. 490. 
 
 12. Pending the action for possession and mesne profits, N. conveyed the 
 ne^thel°Tr';ri^° ^ mortgage. In a suit by the same plaintiffs, 
 
 thnTB h'A ^., nor persons claimmg under them, are estopped to den^ 
 
 r.i ^^w '^"".^^^ ^^'"^ ^* *^^ commencement of the first suit. 
 Jackson v. Mynck, xxix. 490. 
 
 demand^nnf r' '^^^""^"f land under a conveyance from the husband of a 
 demandant m dower, be estopped to deny the seizin of the husband, he may 
 
214 ESTOPPEL. 
 
 show, that the seizin was aot such as to confer a right of dower. Gammon 
 V. Freeman, xxxi. 243. 
 
 14. In an assignment by a debtor, under Act of April 1, 1836, a creditor 
 made a release of his demands beyond what was provided for in the assign- 
 ment : — Meld, that such creditor is not estopped to repudiate it, though he 
 may have received several partial payments under the assignment. Vose v. 
 Holcomh, XXXI. 407. 
 
 15. The record of a suit, in which a plaintiff had recovered judgment, can- 
 not be used against him as an estoppel in a subsequent suit between him and 
 one not a party or privy to the first suit. Parsons v. Copeland, xxxiii. 370. 
 
 16. Although it may appear of record that an occupant of land obtained 
 his title through a succession of o^vners, the earliest of which conveyances 
 recited that the title was derived under the lottery Act, such occupant is not 
 estopped by such recital in his title deed, unless it appear, by legal testimony, 
 that title was acquired under the lottery Act, and that the occupant claims, 
 absolutely under that title. Hovey v. Woodward; xxxiii. 470. 
 
 17: Where land is conveyed with a covenant of non-claim, and " that he 
 wUl warrant and defend the same free from aU incumbrances by him made," 
 he is not estopped to claim the land under a title subsequently acquired by 
 Mm. Wells, J., dissenting. Partridge v. Patten, xxxiii. 483. 
 
 18. An estoppel is commensurate only with the covenant out of which it 
 springs. Kinnear v. Lowell, xxxiv. 299. 
 
 1;9. The acceptance, within twenty years, of a deed granting a mill site, 
 and reciting the existence of another mill site above it, does not estop the 
 grantee from asserting the abandonment, by non-user, of the upper site, un- 
 less the deed shows that the upper site had a right of priority iii the use of 
 the water. Farrar v. Cooper, xxxiv. 394. 
 
 20. If one accepts a beneficial interest under a wUl, he is precluded from 
 setting up any title', or claim in himself whereby to defeat the will in any of 
 its provisions. Smith v. Guild, xxxiv. 443. 
 
 21. A judgment upon default, in trespass quare clausum, is no estoppel to 
 the defendant, in a subsequent suit, to assert title in himself or in another. 
 Dunlap V. Glidden, xxxiv. 517. 
 
 22. A former judgment estops a party to deny in a second suit what was 
 directly decided in the former. Sogers v. Lilly, xxxv. 200. Halls v. 
 Parker, xxxi. 143. 
 
 23. In a sealed obligation to pay the purchase money of land, a recital that 
 the obligee had, by a "bond, bound himself" to convey, estops the pmchaser 
 to deny the authority of the agent by whom the seller's bond purports to have 
 been executed, if the seller have not repudiated it. Augusta Bank v. Haml- 
 7et, XXXV. 491. 
 
 24. A grantor is not permitted to prove that his solemn declarations, in 
 covenants of warranty in the deed given by him, are false ; no person having 
 asserted any claim to the premises, which, if valid, would constitute an in- 
 cumbrance. Temple v. Partridge, xlii. 56. 
 
 25. A., for a valuable consideration, agreed to convey to B., certain pre- 
 mises within two years, provided B. paid a stipulated sum within that time to 
 A., and also all taxes that might be levied on the premises, and an agreed 
 sum annually for rent. B. failed to perform the conditions, allowed the pro- 
 perty to be sold for taxes, purchased the tax title and defended against A. by 
 force of that title : — Held, that it was the duty of B. to pay the taxes ; and 
 
ESTOPPEL. 215 
 
 that he cannot set up, as against A., a title which he obtained in violation of 
 that duty. HasMl v. Putnam, xiii. 244. 
 
 26. "Where a tract of land is granted in clear and unmistakable terms, the 
 grantor and those claiming under him, are estopped to say that the land thus 
 described in the deed was inserted by mistake, and that another piece of land 
 was intended. Brown v. Allen, xiiii. 590. 
 
 See AcTioif, 41. 
 Bank, 5. 
 PArPEK, 71. 
 
 Peopsietoks op xand. 
 
 II. BY PAROL, OB, IN PAIS. 
 
 27. At law, as well as in equity, where one by words and acts willfully 
 causes another to believe certain things, and induces him to act on that be- 
 lief, so as to alter his own previous position, the former is concluded from 
 averring against the latter, a different state of things, as existing at the same 
 time. Gcypeland v. Copeland, xxviii. 525. Stevens v. MeNamara, xxxTl. 
 176. Gummings v. Webster, xliii. 192. 
 
 28. Where the plaintiff to^vn notified the defendant town, that J. C, his 
 wife and their seven children, naming' them all, had fallen into distress, &c., 
 and the defendants acknowledged the receipt of the notice " touching the C. 
 family," and denied that " J. C." had a settlement in the defendant town : — 
 Seld, that the defendants were not estopped to deny the settlement of the 
 family in their town. Pahnyra v. Prospect, xxx. 211. 
 
 29. In a suit brought in the name by which certain persons were incorpor- 
 ated into a company, the defendant may be estopped, by his own acts, to 
 deny the legal existence of the company. So. Bay M. D. Co. v. Gray, 
 xxx. 547. 
 
 30. An owner's disavowal of any title to personal property, wiU not pre- 
 clude him from setting up his ownership, even as against the party to whom 
 the disavowal was made, unless the conduct of such party was influenced by 
 it, and unless it was made for the purpose of having such influence. Morton 
 V. Modgdon, xxxii. 127. 
 
 31. If one, having title to land by an unrecorded deed, make himself 
 instrumental in causing another to purchase the same from a third person, 
 such owner will not be permitted to set up his title as against such pui-chaser! 
 Matthews V. Light, xxxii. 305. Dixfield v. Newton, xli. 221. 
 
 32. The declarations of a party which should estop him, as to a third 
 person, must be made to one who has a right to know the relations of the 
 party to the property in question ; if made to one having no such right, they 
 would not necessarily create an estoppel. Sullivan v. Park, xxxiii. 438. 
 
 33. One of the claimants to disputed land, permitted a third person to 
 occupy, upon a stipulation that if his title should prove to be good, he would 
 sell it to such occupant, but no price was agreed ui^on: — Held, that the oc- 
 cupant was not estopped to deny the title of such claimant. Frye v. Oragg, 
 
 4-\, ^t ?^ ^ dedication of land for a highway, the owner is estopped to reclaim 
 the land, to the mjury of those who have in good faith acquired rights de- 
 
216 EVIDENCE. 
 
 pendent upon its enjojTnent. Cole v. Sprowl, xxxT. 161. State v. Wilson, 
 XLII. 9. 
 
 35. An allegation in a writ cannot operate as an estoppel, when the judg- 
 ment recovered is no muniment of title, and the party insisting is no party to 
 the judgment. Sheldon v. White, xxxv. 233. 
 
 36. A purchase of land, for value, made by the advice and assistance of a 
 third person, wiU not estop such third person from setting up a title suhse- 
 quently acquired by him. Stevens v. McNamara, xxxvi. 176. 
 
 37. Where one enters on land to which he has no title, nor justifies such 
 entry under one claiming title, he cannot controvert the right of the party in 
 possession. Bigelow v. Hillman, xxxvii. 52. 
 
 38. Where an administrator sells at auction his intestate's right to two con- 
 tiguous lots of land, and a third person, at his request, points out the line be- 
 tween them, to which boundary no objection is made by the purchasers; one 
 of them is not estopped thereby from claiming to the true line of his lot, 
 beyond the one thus pointed out, unless, at the time of the sale, he knew 
 where the true line was, and the other purchaser was induced to, and did 
 purchase in consequence of his silence or some acts by him done. Titus 
 V. Morse, XL. 348. 
 
 39. Notwithstanding the actual residence of the indorser of a note when 
 he indorsed it and when it became due, was in a place other than that to 
 which notice of dishonor was sent ; yet, if he held himself out to the public 
 as a resident of the latter place, and thereby deceived the holder, and led him 
 to change his course and send the notice to that place, he is estopped to deny 
 the fact. Lewiston F. Bank v. Leonard, xiiii. 144. 
 
 40. A party will not be estopped by formal statements and admissions, un- 
 important, and by which no one is deceived, and when the facts are within 
 his own knowledge. Cummings v. Webster, xliii. 192. 
 
 See Attachment, 72. 
 Bills, &c. 155. 
 
 EVIDENCE. 
 
 I. PRODUCTION OF THE BEST EVIDENCE. 
 
 II. ADMISSIBILITY OF EVIDENCE, AS IT RESPECTS ITS QUALITY, 
 m. ADMISSIBILITY OF PAROL EVIDENCE, TO AFFECT THE CON- 
 STRUCTION OJ' WRITINGS. 
 IV. PRESUMPTIVE EVIDENCE. 
 V. BURTHEN OF PROOF. 
 VI. EVIDENCE, AS APPLICABLE TO PARTICULAR SUBJECTS AND 
 
 ISSUES. 
 Vn. DECLARATIONS AND ADMISSIONS. 
 Vni. OTHER PRINCIPLES. 
 
 For Evidence appropriate to particular subjects. See appkopeiate titles. 
 
EVIDENCE. 217 
 
 I. PRODUCTION OF THE BEST EVIDENCE. 
 
 (a) In oasb of instkcments oe keoouds lost, oe not peoduoed. 
 
 (b) Attesting -witnesses. 
 (o) Copies. 
 
 (d) Genekalltt. 
 
 (a) In case of instruments or records lost, or not produced. 
 
 1. If the record of a judgment of a justice of the peace has been lost, a 
 party must show that he has exhausted, in a reasonable degree, aU the sources 
 of information and means of discovery, which the nature of the case would 
 naturally suggest, and which were accessible to him, before other evidence can 
 be admissible. Wing v. Abbott, xxtiii. 367. Hanson v. Kelley, xxxviii. 
 456. 
 
 2. Where lumber had been cut on reserved lots, set out by the County 
 Commissioners, and had been seized and sold by persons claiming to act for 
 the public, parol evidence is admissible to prove that the persons acting as 
 County Commissioners were such de facto. Dillingham V. Smith, xxx. 370. 
 
 3. Parol testimony, offered, not to prove a lost record of County Commis- 
 sioners, but as a substitute for such a record, is inadmissible. Small v. 
 Pennell, xxxi. 267. 
 
 4. The 34th Eule of the Court does not justify the introduction of any 
 papers touching the realty, except deeds. Dunlof v. Olidden, xxxi. 510. 
 Hutchinson v. Ghadbourne, xxxv. 189. 
 
 5. Neither can a conveyance of land be proved by parol evidence of the 
 contents of a lost paper, unless it be proved that the paper was a dfeed legally 
 executed. Dunlap v. Olidden, xxxi. 510. 
 
 6. Parol evidence is inadmissible to prove the contents of the declaration 
 in a writ, sued out by another party, unconnected with the action on trial, 
 and which had been settled before Court, and yet remains in the hands of the 
 attorney by whom drawn. Baker v. Pike, xxxiii. 213. 
 
 7. And notice, to the opposing counsel, to produce a written paper, is 
 ineffectual, if the paper be held by him as the counsel of some person uncon- 
 nected with the action on trial. Baker v. Pike, xxxiii. 213. 
 
 8. In order to the introduction of secondary evidence, to prove the contents 
 of a document, alleged to have been lost, generally, it is necessary to show 
 that search has been made among the papers of the person to whom its 
 custody belonged. Sellers v. Uarpenter, xxxiii. 485. 
 
 9. A party may sometimes show the loss of a paper, to the Court, by his 
 own affidavit, in order to the introduction of secondary evidence. Mason v 
 Tollman, xxxiv. 472. 
 
 11. As a general principle, a party offering to prove a fact, by a deed, must 
 produce, and prove the execution of the deed. Hutchinson v. Ghadbourne 
 xxxv. 189. ' 
 
 12. To this principle, in certain classes of cases "touching the realty" 
 the 34th Rule of the Court has created an exception ; but that Rule does not 
 authorize the introduction of copies as evidence, when the " realty" is not 
 the subject matter of the suit. Hutchinson v. Ghadbourne, xxxv. 189. 
 
 13. Without proof of its loss, or a foundation laid for secondary evidence 
 
 xxxTnr372 ^ ''""^^ '^''''°* ^' ^'"^'^ ''^ P"'°^- ^^"^^'^ ^- ^^'''^''^ 
 28 
 
218 EVIDENCE. 
 
 14. Secondary evidence of the contents of a paper, alleged to be lost, is not 
 admissible, upon the testimony of a witness that he was the clerk of the 
 party and had the oversight and filing of his papers, and had made thorough 
 search with the party among them, but could not find it, and believed it to he 
 lost. Hanson v. Kelley, xxxtiii. 456. 
 
 15. When a disclosure of a poor debtor is made in writing, parol evidence 
 of its contents is inadmissible, unless it be shown that the original or a duly 
 certified copy is unattainable. Winsor v. Clark, xxxix. 428. 
 
 16. An oifice cdpy of the plaintiff's title deed is not admissible, on proof 
 that the original, was in the hands of the defendant's attorney. It must he 
 proved to have been lost. Bird v. Bird, xl. 392. 
 
 17. The acceptance of a charter, creating a company, must be proved by 
 the best evidence in the power of the party relying upon it. The books of a 
 corporation are the regular evidence of its doings. Hudson v. Carman, 
 XLi. 84. 
 
 18. If its records cannot be produced, the acceptance may be proved by 
 implication from the acts of the company. Hudson v. Carman, xii. 84. 
 
 (b) Attesting witnesses. 
 
 19. A party, having called the subscribing witness to prove the execution 
 of an instrument, may prove, by other persons, that such witness had else- 
 where made statements at variance with his testimony. Shorey v. Hussey, 
 XXXII. 579. 
 
 (c) Copies. 
 
 20. A deed of the grantee of the State cannot be considered as belonging 
 to the archives of the State, and it cannot be proved by a copy made by the 
 Land Agent. Hammatt v. Emerson, xxtii. 308. 
 
 21. A paper, belonging to the archives of the State, may be proved by a 
 duly authenticated copy. Hammatt v. Emerson, xxvii. 308. 
 
 22. Letters addressed to a public officer, in his official capacity, when 
 received, become public documents, and may be proved ia like manner. But 
 extracts and portions cannot. Hammatt v. Emerson, xxvii. 308. 
 
 23. Letters written by the agents of the seller, whose contents have been 
 made known to the purchaser as an inducement to the purchase, are the only 
 evidence of their contents, unless their loss is proved. Hammatt v. Emerson, 
 xxvii. 308. 
 
 24. A copy of the decree of the Circuit Court of the United States, although 
 not made in a case between the parties, is the'only legal evidence of the facts 
 stated therein. Ham/matt v. Emerson, xxvii. 308. 
 
 25. The 34th Rule of the Court does not authorize the admission, in evi- 
 dence, against a demandant in dower, without the proper proof of loss of the 
 original, of an office copy of a deed, acknowledged by her husband, though 
 not by her, and recorded, purporting to be a conveyance of the premises by 
 the husband, and a relinquishment by her of her claim to dower therein. 
 Sellars v. Carpenter, xxvil. 497. 
 
 26. In an action to recover a tax, where the defence is, that the defendant 
 had removed from the town prior to May first, of that year, a copy of the 
 
EVIDENCE. 219 
 
 record of an assignment of a mortgage to him, from the registry of deeds, 
 wherein he was described as of the town assessing the tax, with no other 
 evidence connecting the defendant with such assignment, is inadmissible. 
 Bennett v. Treat, xxTlii. 212. 
 
 27. A copy of the debtor's application for a citation to the creditor, certi- 
 fied by one of the said justices in his capacity of justice of the peace, is 
 inadmissible to invalidate the certificate of the two justices. Ayer v. Fowler, 
 XXX. 347. 
 
 28. Neither, for that purpose, can the plaintiff introduce a copy, certified as 
 above, of the citation, officer's return upon it, or of the officer's statement of 
 his mode of appointing one of the justices. Ayer v. Fowler, xxx. 347. 
 
 29. Nor, for that purpose, is a copy of the disclosure a(!missible, unless 
 certified by both. Ayer v. Fowler, xxx. 347. 
 
 30. When the book of original assessments is lost, a proved copy, as 
 secondary evidence, may be used. Freeman v. Thayer, xxxili. 76. 
 
 31. An heir, claiming real estate under a deed to his ancestor, cannot prove 
 the genuineness of such deed by an office copy, although the persons, pur- 
 porting to have been the parties, and the subscribing witnesses and the 
 register, are all dead. White v. Dioinel, xxxiii. 320. 
 
 32. Under the 34th Rule of the Court, office copies of deeds are admissible 
 in cases " touching the realty," and in no other. Hutchinson v. Ghadbourne, 
 xxxT. 189. Boe v. Scriiner, xxxTi. 168. 
 
 33. To show that a debtor obtained a discharge of the debt fraudulently, 
 copies of original deeds of conveyance, made by him about the same time, 
 are inadmissible, unless . the originals are lost. Doe v. Scribner, xxxvi. 
 168. 
 
 34. Office copies of deeds, purporting to show that the title of the land 
 was not in the judgment debtor, at the time of the levy, are inadmissible, for 
 the purpose of showing a levy invalid, in order to revive the judgment once 
 satisfied by such levy. Jackson v. Nason, xxxviii. 85. 
 
 35. On the trial ol an appeal from a justice of the peace, copies of the 
 record- and of all other papers filed in the case, excepting such as were used 
 in evidence, are the legal and best evidence of the record, and cannot be ex- 
 plained or contradicted by parol evidence or original documents. Holden v. 
 Barrows, xxxix. 135. 
 
 36. A certified copy by the town clerk of the appointment of an agent to 
 sell liquors under c. 211, of Act of 1851, is not sufficient evidence of agency. 
 State V. Gra^, xxxix. 353. 
 
 37. To authorize the use of the copy of the plaintifif's title deed, the orig- 
 inal must he proved to be lost. Bird v. Bird, xi. 392. 
 
 38. Copies of all the papers made by the applicant in bankruptcy, to the 
 District Court of Massachusetts, were ofl'ered ; the orders and decrees of the 
 Court, appointment, bond and account of the assignee, and the marshal's 
 certificate, tacked together by a ribbon, to which was prefixed the certificate 
 of the clerk of that Court, that it contained the copies of the whole record in 
 that case, with the seal of the Court affixed ; but on several of the papers, 
 thus tacked together, was his certificate that they were true copies - — ITeZd' 
 that the documents thus offered were not duly authenticated, and, hence, were 
 inadmissible. Pilce v. Grehore, xi. 503. 
 
 ,39. An agreement to allow secondary evidence, in regard to the contents of 
 a paper aUeged to be lost, cannot be construed as an agreement to dispense 
 
220 EVIDENCE. 
 
 with proof of its execution. There being no proof of the genuineness of the 
 signature, a copy of it, proved to be a correct one, is not legally admissible. 
 Moor V. Carey, XLii. 29. 
 
 (d) Oenerally. 
 
 40. The receipt of the indorsee to the indorser is admissible in evidence, 
 to shov(r payment. Garnsey v. Allen, xxvii. 366. 
 
 41. The minutes of the proceedings of two justices of the peace and of the 
 quorum, informal as a record, but containing sufficient memoranda from which 
 the record in extenso may be lAade, are admissible in evidence, untU the record 
 is completed. Chamberlain v. Sands, xxvii. 458. 
 
 42. Where the settlement of paupers is in controversy, it is not necessary 
 to prove, by the record, that the persons acting as overseers of the poor were 
 legally chosen and qualified. It is sufiicient to show that they acted as such. 
 Brewer v. Machias, xxtii. 489. 
 
 43. In an action against the defendant, for commencing a suit against the 
 plaintiff, in the name, and without the consent, of a third person, parol evi- 
 dence of the arrest and commitment is admissible, where the writ is lost. 
 Foster V. Dow, xxix. 442. 
 
 44. Where the quantity of lumber is in question, though the witness, at 
 first, testify from his recollection of the scale biU, yet, if he have knowledge 
 of the quantity, irrespective of the scale bUl, he may testify to the quantity, 
 without the production of the scale bill. Mudge v. Pierce, xxxii. 165. 
 
 45. Deeds, having been rejected for not having been recorded, were offered 
 again on the same day, having been recorded in the intervening time : — Held, 
 they were admissible. McDonald v. Philbrooh, xxxiii. 366. 
 
 46. In an action upon a collector's bond, parol evidence is admissible to 
 show, that bills of assessments with legal warrant were committed to the 
 collector. Brighton v. Walker, xxxT. 132. 
 
 47. The original commission, authorizing clergymen to solemnize marriages, 
 or an authenticated copy of the record of it, and not a certificate, under the 
 hand of the Governor and the seal of State, attested by the Secretary, that 
 the person had been appointed and qualified to solemnize marriages, and that 
 he continues to hold the office, is legal evidence of the person's authority. 
 State V. Hasty, xiii. 287. 
 
 II. ADMISSIBILITY OF EVIDENCE, AS RESPECTS ITS QUALITY. 
 
 (a) Cektaintt. 
 
 (b) Relevancy, and hebein of usage. 
 
 (c) Matekialitt. 
 
 (d) Hearsay, and kes intek alios. 
 
 (e) Entkies. 
 
 (f ) Opinion and eepuiation. 
 
 (a) Certainty. 
 
 48. In debt, on a judgment recovered in another court, if there be intro- 
 duced two copies of the record duly authenticated, variant from each other, 
 it seems, that the plaintifi" must fail for uncertainty. Tihhetts v. Baker, 
 XXXII. 25. 
 
EVIDENCE. 221 
 
 49. But, in such case, any person who has compared the copies with the 
 original may testify which is the true copy. Tibhetts v. Balcer, xxxii. 25. 
 
 50. To invalidate the evidence of a witness, regarding a note he had testi- 
 fied about, defendant showed that he " manifested surprise at finding such a 
 note in his papers, but could not recollect what he said:" — Held, that such 
 testimony was too indefinite and uncertain to be admissible. Smith v. 
 Morgan, xxxvili. 468. 
 
 51. Between principal and agent, receipts, taken by the latter for the pay- 
 ment of money to tjiird persons on account of his principal, are admissible in 
 evidence to support an account in set-ofi' for such disbursements, without 
 proof of their actual payment. Given v. Gould, xxxix. 410. 
 
 52. In a suit upon a note, given for the conveyance of a patent right, proof 
 that such patent was void, for being an infringement of a prior one, is not ad- 
 missible, without that fact has been determined by the Circuit Court of the 
 United States. Elmer v. Pennell, XL. 430. 
 
 (b) Relevancy, and herein of usage. 
 
 53. In case against the defendant, for a conspiracy between him and a 
 deputy sheriff to defraud the plaintiff, by means of making a false return 
 upon a ^vrit in the defendant's favor, evidence that the defendant had applied 
 to another deputy, to do a similar act in another suit, is inadmissible. 
 Handley v. Gall, xxvii. 35. 
 
 54. If the debtor was not legally entitled to take the poor debtor's oath, 
 within the time limited in his bond, and a suit is brought upon it, it is not 
 competent to show that evidence might have been introduced which would 
 have authorized the taking of the oath. Rolinson v. Barker, xxviii. 310. 
 
 65. The parties to a note, deposited in a bank in Boston, for collection, 
 cannot be affected by a usage in the other banks, which does not exist in the 
 bank where it is lodged. Pierce v. Whitney,, xxix. 188. 
 _ 56. In trespass quare clausum, evidence of acts of trespass upon other 
 lands of plaintiff, than those described in his writ, is inadmissible. Long- 
 fellow V. Quimhy, xxix. 196. 
 
 57. In an action by one town against another, for the expense of a pauper, 
 whose settlement is contested, evidence of a former suit, for previous expenses 
 of the same pauper, and of payment of the same by the overseers of the 
 defendant town, is admissible. Harpswell v. Phipshurg, xxix. 313. 
 
 ^.^■.^.^^ ^°*^™ against the defendant, for commencing a suit against the 
 plamtiff, m the name, and without the consent, of a third person, the defend- 
 ant, m order to show authority, wiU not be aUowed to prove, that the person, 
 in whose name it was brought, suffered himself to be defaulted in an action, 
 Drougiit tor services, m commencing and prosecuting it. Foster v. Dow, 
 XXIX. 442. ' i o ' jvi^K/, 
 
 59 One holding under a warranty deed fi-om a mortgager has a right, in 
 a smt against him by the mortgagee, to prove the payment made by the 
 
 SwcfX'xxxf 392. """ "'^'"'^ *^°"^ '^' "'"^'S'S^- ^^^^*'«^* ^• 
 
 Jau \ ^'^^f'f^^'^l^''^^'^l^ ^ conspiracy to prosecute one who was not 
 S'utedoftl'^''' ^'f**"' government to prove that the defendants 
 prosecuted other persons who were guilty. State v. Walh&r, xxxii 195 
 
 61. In an action agamst the editor of a newspaper, for a libeUous pubUca- 
 
222 EVIDENCE. 
 
 tion, it is admissible for tte plaintiff to show articles, in subsequent numbers 
 of the same paper, for the purpose of proving that the plaintiff was the per- 
 son intended to be defamed. White v. Sayward, xxxiii. 322. 
 
 62. Testimony that the witness, upon reading the libellous article, consid- 
 ered the plaintiff as the person intended to be defamed, is inadmissible. White 
 V. Sayward, xxxiii. 322. 
 
 63. Testimony is relevant, which has a tendency, however remote, to 
 establish the probability, or improbability of the fact in controversy. Trull 
 V. True, XXXIII. 367. 
 
 64. A testator devised land. The heir resisted the probate of the will, 
 alleging the insanity of the testator. Upon a promise by the devisee, that 
 the evidence before the Judge of Probate in favor of the will should be with- 
 drawn, and the will disallowed, the heir conveyed a part of the land to the 
 devisee : — Held, that, to avoid the deed as fraudulent, proof of the insanity 
 is not admissible, unless connected with evidence tending to prove, or with an 
 offer to prove, that the insanity was known to the devisee or his agent, prior 
 to the taking of the deed. Larrahee v. Larrabee, xxxit. 477. 
 
 65. Upon such an investigation, evidence is admissible to show what testi- 
 mony, prior to the execution of the deed, was given of the insanity, in the 
 presence of the grantee, in the Probate Co^irt. Larrabee v. Larrabee, 
 XXXIT. 477. 
 
 66. In a suit for an injury, occasioned through a defect in a highway, evi- 
 dence, that on former occasions, the driver had " appeared to be a competent 
 driver," seems to be inadmissible. Lawrence v. Mt. Vernon, xxxT. 100. I 
 
 67. A question in cross-examination may be precluded, if its relevancy to 
 the issue be not made known to the Court. Rumsey v. Bragg, xxxv. 116. 
 
 68. A written memorandum by one of the parties to a contract, in which 
 they had been jointly interested, that he would equalize the expenses, does not 
 tend to prove that there had been any modification of it. But such memo- 
 randum might show that such modification was not considered to be unreason- 
 able. Palmer v. Fogg, xxxv. 368. 
 
 69. Where, in an action for services, a common law award is put in in de- 
 fence, the plaintiff will not be allowed to introduce evidence, that the services 
 were rendered at an agreed price and upon contract, and that an account in 
 favor of the plaintiff and his co-partner, for similar services, were not laid be- 
 fore the arbitrators. Johnson v. Knowlton, xxxv. 467. 
 
 70., Plaintiff submitted his claims, and he and his co-partner submitted 
 their joint claims, against the defendants to arbitrators, who heard and acted 
 upon both cases at the same time. The defendants introduced a receipt and 
 an order against the plaintiff: — Seld, that testimony, offered by the plaintiff 
 to show, that to himself and partner there was due a large sum from the de- 
 fendants, was inadmissible. Johnson v. Knowlton, xxxv. 467. 
 
 71. In an action against an ofiicer for not attaching certain goods, not m 
 the possession of the debtor, evidence that subsequently he did attach those 
 goods, upon another writ, by special request, and that they were afterwards 
 appropriated to the payment of the latter claim, is irrelevant. Weld v. Chad- 
 bourne, xxxvii. 221. 
 
 72. Where another bond and note were made in lieu of former ones, in an 
 action on the latter note, it is proper for the jury to examine both bonds, to 
 ascertain whether the interest had been paid otherwise than by the note. 
 Smith V. Taylor, xxxix. 242. 
 
EyiDENCE. 223 
 
 73. In an action for damages against the defendants, for the bad condition 
 in which they left the passage-way from the highway to his tavern stand, the 
 plaintiff cannot show that the carriages of travelers were upset by reason of 
 defendants' omission. Eulha/rd v. A. & E. B. B. Go., xxxix. 506.- 
 
 74. The indemnity made by the counsel may be read to the jury, when 
 the issue before them is whether the instructions of a client authorized his 
 counsel to indemnify an officer in the client's name. Nutt v. Merrill, XL. 237. 
 
 75. In ejectment for a lot of land, called the " Gore," bounded by a lot be- 
 longing to the tenant, the only question being as to the true original location 
 
 -of the north line of the " Gore," the tenant introduced a deed of his lot from 
 his original grantors, who were also the original grantors of the demandant, 
 dated subsequently to that under which the demandant claimed, and intro- 
 duced testimony tending to prove, that the original location of the north line 
 of the " Gore" was in accordance with his claim : — Held, that the testimony 
 was admissible in connection with the other testimony of the case. Chase 
 V. White, XLI. 228. 
 
 76. In an action upon a note, to which defendant's name had been signed 
 by a third person, other notes, signed in the same manner, either dated 
 subsequent to the inception of the one in suit, or the existence of them not 
 known to the defendant until after that time, and which the defendant had 
 paid or promised to pay, are not admissible to show original implied authority 
 of such third person to sign the note in suit. Forsyth v. Bay, xxi. 382. 
 
 77. Neither are they competent to establish the ratification or adoption by 
 the defendant of the act of such third person in signing his name to the note. 
 Forsyth v. Bay, xli. 382. 
 
 78. Proof that the plaintiff had entered into a contract with A., similar to 
 that made by the former with the latter ; that he had received of A., a note 
 similar to the one in suit, for a similar part performance, and then had neg- 
 lected to fulfil its other stipulations, is not competent evidence to show, that 
 the consideration of the note in suit grew out of the contract between the 
 plaintiff and defendant. Eall v. Tribou, xlii. 192. 
 
 79. A defendant cannot introduce evidence in support of an issue which 
 he has not presented by his pleadings. Lincoln v. Fitch, xlii. 456. 
 
 _ 80. Usage may be general and still confined to a particular city, town or 
 village. When men are hired with no special agreement as to the time they 
 are to work, evidence of what the usage in that particular employment is, as 
 to time, is admissible. Gleason v. Walsh, xiiii. 397. . 
 
 (o) Materiality. 
 
 81. In an action by the indorser against the maker, for a payment made to 
 the mdorsee, evidence offered by the maker, that the property received by the 
 indorsee was in fact of less value than the amount for which it was received, 
 IS immaterial and inadmissible. Garnsey v. Allen, xxvii. 366. 
 
 82. Whether any of the facts connected with arrangements made prepara- 
 tory to the commission of a crime, can be deemed collateral or immaterial 
 quere. Staie v. Sargent, xxxii. 429. ' 
 
 83. In an action by an innocent indorsee, against the maker of a note to 
 whom It came before pay-day, for a valuable consideration, and without notice 
 of objection, the defendant wiU not be allowed to prove, that it was an ac- 
 
224 EVIDENgE. 
 
 coramodation note, without value, and obtained by fraud. Fletcher v. Gushee, 
 xxxii. 587. 
 
 84. Nor, that by mistake the note bore date earlier than the day upon which 
 it was actually made, for the purpose of showing that the suit was prematurely 
 brought. Huston v. Young, xxxiii. 85. 
 
 85. In such action, evidence to prove any fact which might have defeated 
 the suit, between the original parties, is immaterial. Walker v. Davis, 
 XXXIII. 516. 
 
 86. Where the tenant claims by adverse possession, evidence as to the 
 manner in which the land was run out and monuments established, when he 
 entered upon it under contract with the owners, is immaterial. Gray v. 
 JButchins, xxxTi. 142. 
 
 87. In an action on a poor debtor's bond, good at common law, but not a 
 statute bond, evidence that the debtor disclosed notes of hand, which were 
 not appraised, is not admissible. Glark v. Metcalf, xxxviii. 122. 
 
 88. In dower, the declarations of demandant's husband, as to his equitable 
 title, are immaterial. Mann v. Edson, xxxix. 25. 
 
 89. In an action against the acceptor by the drawee of a bill of exchange, 
 who procured its acceptance, evidence that the conditions upon which it 
 was agreed to be accepted were not fulfilled, is admissible. Wise v. Neal, 
 XXXIX. 422. 
 
 90. In an action against an officer for attaching goods claimed by plaintiff 
 by sale from the debtor, the officer alleging the sale to be fraudulent as to 
 creditors, the declarations and acts of the plaintiff's vendor are admissible; 
 and it is immaterial whether the vendee is present or absent when such 
 declarations were made. White v. Ghadbourne, xli. 149. 
 
 91. Prior to the organization of a railroad corporation, the defendant, by 
 his subscription, agreed to become the holder of twenty-five shares in the 
 capital stock, upon the condition, that not less than the least sum required 
 by the charter should be subscribed : — Held, that it was not competent for 
 a subscriber to show that the shares, subscribed and recorded, were by per- 
 sons of no pecuniary responsibility, with the qualification, that the defendant 
 might introduce any testimony tending to show that the subscriptions were 
 not made in good faith. Pen. B. R. Go. v. White, xli. 512. 
 
 92. It is immaterial with what motives and under what circumstances the 
 defendant acted, in signing a paper caUing, and in attending, a meeting of the 
 directors at which certain assessments were made. Pen. B. B. Go. v. White, 
 XLI. 512. 
 
 93. In trespass quare clausum, deeds, not shown to afibrd either material 
 or competent evidence, are inadmissible. Melcher v. Merryman, xli; 601. 
 
 94. A. brought his action against B. for causing back water at the wheels 
 of his miU, by obstructing the race-way. B. offered to prove that the back 
 water was caused by a wing dam : — Held, that this testimony was admissible. 
 Monroe v. Gates, xLii. 178. 
 
 95. In trespass, to recover the value of certain liquors, which had been 
 seized upon a warrant, and for which a writ of restitution had issued, proof, 
 that at the time of seizure, and for a considerable time previous, intoxicating 
 liquors had been kept for sale by the plaintiff, and that he had been in the 
 habit of selling them in violation of law, is material to prove their status at 
 the time of the seizure. Lord v. Ghadbourne, xlii. 429. 
 
EYIDENCE. 225 
 
 95. A party plaintiff, purchaser of goods, alleged to have been made in 
 fraud of creditors, being a witness, may well testify concerning his motives 
 and purposes in reference to the purchase of the goods. Edwards v. Currier, 
 XLiii. 474. 
 
 (d) Hearsay, and res inter alios. 
 
 96. An inference, founded upon hearsay, is no more admissible in evidence, 
 than a fact obtained in like manner. Mason v. Tollman, xxxiv. 472. 
 
 97. Hearsay is never admissible, if, from the nature of the case, it is appar- 
 ent that better evidence is attainable. Gould v. Smith, xxxv. 513. 
 
 98. Facts, within the personal knowledge of a deponent, tending to show 
 an intention of the pauper to change his residence, may be given in evidence ; 
 but when, from the whole answer, it is manifest that the facts stated were 
 merely communicated by the pauper to the deponent, they must be excluded. 
 Richmond v. Thomaston, xxxviii. 232. 
 
 99. The declarations of a person, competent to be a witness, assigning the 
 reasons for not doing a certain act, are res inter alios, and inadmissible. Sar- 
 gent V. Hampden, xxxviii. 581. 
 
 100. An agent's recital of a past transaction of the business of his princi- 
 pal is regarded as hearsay testimony and inadmissible. Burnham v. Ellis, 
 XXXIX. 319. 
 
 101. The covenants in a collector's deed, of land sold for taxes, are not 
 evidence that the necessary preliminary steps were taken to pass the title to 
 the grantee, against one in possession under a recorded deed. Phillips v. 
 Phillips, XL. 160. 
 
 102. The declarations of the plaintiff's vendor, made long after a sale, the 
 validity of which is in issue, are not admissible. White v. Ghadbourne, 
 XLi. 149. 
 
 (e) Entries. 
 
 103. Cotemporaneous entries, made by third persons, in their own books, 
 in the ordinary course of business, the matter being within the knowledge of 
 the partymaking the entry, and there being no apparent motive to pervert 
 the fact, it seems, are admissible. Bow v. Sawyer, xxix. 117. 
 
 104. Books of a deceased agent, in his own handwriting, are admissible for 
 his principals, if, on inspection, they appear to have been fairly kept, and the 
 entries made in due course of his agency business. Dow v. Sawyer, xxi:^. 
 
 105. The partnership book, containing charges against one of the partners 
 for moneys paid by him upon his private debts, is receivable in evidence for 
 the defendant, to prove that the other partner.must have known of such pay- 
 ments although some other payments may have been made, and not entered 
 upon the book. Foster v. Fifield, xxix. 136. 
 
 106._ A manuscript book cannot be received to decide, between witnesses 
 respecting the date of an occurrence, if none of the entries of the book were 
 made by either of the witnesses. Gornville v. Brighton, xxxv. 141. 
 
 }..T.' f "'"'•' T^l ^y ^'^^''^""^ P'"^'""'' ^""i «°"'^ of them unknown, in 
 books of a private character, are not admissible. Lord v. Ifoore, xxxyii. 
 
 29 
 
226 EVIDENCE. 
 
 108. Entries in the books of a bank, made by the cashier, deceased, in the 
 ordinary course of his business, tending to prove any material fact in an issue, 
 are admissible. Pike v. Grehore, xl. 503. 
 
 See Evidence, 294-310. 
 
 (f) Opinion and reputation. 
 
 109. In the trial on indictment for murder by procuring abortion, an ex- 
 perienced physician, after having made a post mortem examination, may offer 
 his opinion as an expert, whether the female had been pregnant, and as to 
 what caused her death. State v. Smith, xxxii. 369. 
 
 110. Testimony of witnesses, that, upon reading the libellous article, they 
 considered the plaintiff as the person intended to be defamed, is not admissi- 
 ble. White V. Sayward, xxxiir. 322. 
 
 111. That the employments of a witness have not been such as to require 
 Tiim to distinguish between true and simulated handwritings, is not, of itself, 
 sufficient reason to preclude him from giving an opinion as to the genuineness 
 of a disputed signature, though the opinion be founded merely upon a com- 
 parison of writings. Sweetser v. Lowell, xxxiil. 446. 
 
 112. The subscribing witnesses to a will, though not experts, may give opin- 
 ions as to the sanity of the testator, when the facts are stated upon which 
 their opinions are founded. Gilley v. Cilley, xxxiv. 162. 
 
 113. A deposition, impeaching the general reputation of an opposing wit- 
 ness, for truth, cannot be excluded, although it also shows that the reputa- 
 tion was founded upon the witness' neglect to perform his agreement. Hap- 
 good V. Fisher, xxxiv. 407. 
 
 114. In an action on a warranty for the soundness of a horse, a witness 
 who testifies for plaintiff as to the appearance and action of the horse, but 
 who is not an expert, cannot be asked, on cross-examination, whether he had 
 observed the same appearances in horses who had been hard driven and then 
 exposed. Moulton v. Scruton, xxxix. 287. 
 
 115. Persons, who have been many years engaged in building and carrying 
 on mills, are experts in their business, and their testimony as such is admissi- 
 ble. Hammond v. Woodman, xii. 177. 
 
 116. In general, the opinion of a witness is not evidence. He must speak 
 of facts ; for his opinion may be arrived at by some unwarrantable deduction, 
 01* premises not well established. Lewis v. Brown, XLi. 448. 
 
 117. It is proper for a surgical expert, who examined a wound, to give his 
 opinion of the character of the instrument that produced it. State v. Knight, 
 
 XLIII. 11. 
 
 118. A witness, possessing scientific skill, may properly be inquired of 
 whether there be a distinction, chemical, physical, or microscopic, between the 
 qualities of human blood and that of any animal. State v. Knight, xtiii. H- 
 
 ni. ADMISSIBILITY OF PAROL EVIDENCE, TO AFFECT THE CON- 
 STRUCTION OF WRITINGS. 
 
 (a) GENERALLY. 
 
 (b) Evidence of the situation ok acts op the paeties. 
 
 (c) In case op keceifts. 
 
 (d) To control oe explain eecokds and judgments. 
 
EVIDENCE. 227 
 
 (a) Oenerally. 
 
 119. Parol evidence is not admissible to vary the meaning of a promissory 
 note. If the promise is jointly and severally to pay, it cannot be shown to be 
 otherwise. Manner's Bank v. Ahhott, XXTIII. 280. 
 
 120. It IS competent, however, for one or more signers to prove by parol, 
 that he or they are sureties merely. Manner's Bank v. Ablott, xxtiii. 280. 
 
 121. So, that, at the time of making a mortgage of personal property, the 
 parties agreed that the possession should remain with the mortgager ; such 
 evidence not contradicting the mortgage. Pierce v. Stevens, xxx. 184. 
 
 122. Parol evidence is inadmissible to control the legal effect of bills of 
 exchange. Hancock v. Fairfield, xxx. 299. 
 
 123. And, to prove that a deed, absolute and unrestricted on its face, was 
 intended merely to convey an estate in trust ; and, to reduce such a deed to a 
 conditional one. Ellis v. Higgins, xxxii. 34. Augusta Bank v. Augusta, 
 XXXVI. 255. 
 
 124. To authorize the Court to reform a deed for mistake, the mistake may 
 be established by parol. Farley v. Bryant, xxxii. 474. 
 
 125. Parol evidence is inadmissible to show that the grantor, in describing 
 the boundaries, supposed that the words used would have an effect different 
 from that which the law affixes. Farley v. Bryant, xxxii. 474. 
 
 126. And, to show that a written mortgage of a chattel was intended to 
 constitute a mere pledge. Whitney \. Loivell, xxxiii. 318. 
 
 127. The recitals in the treasurer's deed, are not conclusive, as evidence of 
 the facts therein stated. Longfellow v. Quimhy, xxxiii. 457. 
 
 128. Evidence is admissible, that the third referee agreed to sign the award, 
 which was signed by two only. Anderson v. Farnham, xxxiv. 161. 
 
 129. In an action against a subscriber to capital stock, to recover assess- 
 ments on the shares, parol evidence is not admissible to show that the sub- 
 scription was upon a condition, not expressed in the writing. K. S P. B. E. 
 Go. V. Waters, xxxiv. 369. 
 
 130. Parol evidence is admissible to show whether a deed conveying a farm 
 included a fenced lot, belonging to the grantor, upon which he had erected a 
 tenement to let. Morrell v. Gook, xxxT. 207. 
 
 131. The reduction to writing, of a business contract, precludes each party 
 from proving its particular provisions, by showing what the negotiation was, 
 which terminated in the writing. Palmer v. Fogg, xxxv. 368. 
 
 132. Neither a ivritten submission, nor an award, can be explained or 
 varied by parol. Buck v. Spofford, xxxv. 626. 
 
 133. But a party may show, by parol, what controverted matters were laid 
 before the referees and acted upon by them. Buck v. Spofford, xxxv. 526. 
 
 134. A grantor cannot limit the effect of his deed, by his testimony. Gray 
 V. Sutchins, xxxvi. 142. 
 
 135. The consideration of a written release, not under seal, may be proved 
 though none be mentioned. Burrill v. Saunders, xxxvi. 409. ' 
 
 136. Parol testimony cannot be received to give the effect of a mortgage to 
 a bill of sale, absolute in its form, though not under seal. Bryant v. Crosby, 
 
 137. But where a bill of sale purports to be for a cash consideration 
 
228 EVIDENCE. 
 
 abeady paid, it may be shown by parol that the payment was not made in 
 cash, and also in what manner it was made. Bryant v. Crosby, xxxvi. 562. 
 
 138. Where a poor debtor disclosed attachable property, which was duly 
 demanded, but the ofificer's return of the demand was dated, by mistake, one 
 year too early, the creditor may prove the facts by parol. Torrey v. Berry, 
 XXXVI. 589. 
 
 139. A tract of land, conveyed by courses and distances, without referring 
 to monuments or other locations, cannot be enlarged by proof, that the owners 
 of the adjoining lands had concurred, at a former period, with the grantor, 
 in establishing one of its side lines upon a course variant from that in the 
 deed. Bohinson v. Miller, xxxvii. 312. 
 
 140. In an action upon vsritten orders for the delivery of goods, which do 
 not refer to any prior negotiation, parol evidence is inadmissible to prove a 
 previous agreement for a longer time of credit than that expressed by the 
 orders. Chase v. Jewett, xxxvii. 351. 
 
 141. Considerations, additional to those mentioned in a deed, when not in- 
 consistent therewith, are provable by parol. Brown v. Lunt, xxxvri. 423. 
 Niclcerson v. Saunders, xxxvi. 413. Eersey v. Verrill, xxxix. 271. 
 
 142. Parol evidence, that the delivery of a deed was to be void, upon the 
 fulfillment of a verbal condition, is inadmissible. Warren v. Miller, xxxvili. 
 108. 
 
 143. A deed, free from ambiguity, cannot be limited in its legal effect by 
 parol ; neither can the intention of the parties be proved by parol. Jordan 
 V. Otis, xxxviii. 429. Sogers v. McPheters, XL. 114. Emery v. Webster, 
 XLii. 204. 
 
 144. In a suit on a poor debtor's bond, the disclosure by him made, signed 
 and sworn to, is admissible ; but his statements, made at the same time, are 
 inadmissible. Jewett v. Rines, xxxix. 9. 
 
 ' 145. Where the plaintiff conveyed to defendant, a house, by deed with a 
 covenant against incumbrances, and occupied it afterwards for a certain time, 
 parol evidence, that the plaintiff was to possess it rent free, and that the de- 
 fendant agreed to pay the taxes assessed before the conveyance, is admissible. 
 Hersey v. Verrill, xxxix. 271. 
 
 146. Parol evidence is admissible to correct an error in the name of the 
 payee of a written order, when it is so connected with the testimony, that the 
 real owner may be clearly ascertained ; and that such order was accepted for 
 tha benefit of the plaintiff. Jacobs v. Benson, xxxix. 132. 
 
 147. But parol evidence is not admissible to change or vary the meaning of 
 a contract set forth in the condition of a bond. Whitney v. Slayton, xi. 
 224. 
 
 148. A., in an action against B., cannot be permitted to prove that his own 
 deed to B. was without consideration, when it purports to be for considera- 
 tion. Hammond v. Woodman, xli. 177. 
 
 149. Evidence, with reference to the plan by which a purchase is made, in 
 confiict with the language of the deed itself, is inadmissible. Wellington v. 
 Murdough, xli. 281. 
 
 150. Where a deputy sheriff sold property on an execution, indorsed his 
 doings thereon in his handwriting, and died before having signed the same, 
 and an action is brought against the sheriff, for a wrongful disposition of the 
 property attached, as weU as for loss or injury consequent upon a partial non- 
 
EVIDENCE. 229 
 
 compliance with the law : -EeU, that evidence may be received touching the 
 premises, no return having been completed by signature. Loveitt v. Filce, 
 XLi. 340. 
 
 151. The description in a deed contained the following :—" All that part 
 of lot 87, &c., lying westerly of the centre of the old channel," &c. : — Held, 
 that parol evidence was admissible to explain the phrase " old channel." An 
 instruction, limiting the application of the evidence, by the jury, simply to the 
 question of the antiquity of the channel, was erroneous. Appleton, J., 
 dissenting. Emery v. Webster, XLii. 204. 
 
 152. The identical monument referred to in a deed may always be shown 
 by parol. Emery v. Webster, xiii. 204. 
 
 153. Parol evidence is admissible to prove the payment of a debt secured 
 by a mortgage, and also the sum to redeem an equity of redemption sold~on 
 execution. Thornton v. Wood, XLii. 282. 
 
 (b) Evidence of the situation or acts of the 'parties. 
 
 -154. In determining the place where a monument, described in a deed, 
 stood, the acts of the proprietors of the adjoining lots, in ascertaining and 
 establishing the old boundary, many years before a question concerning its 
 location arose, are admissible. Gilbert v. Curtis, xxxtii. 45. 
 
 155. Where no practical construction of a conveyance is given by the 
 parties, by establishing monuments or boundaries, their acts upon the land 
 and declarations concerning it are not admissible to affect its legal construc- 
 tion. Pierce v. Faunae, xxxvii. 63. Chandler v. McCard, xxxviii. 564. 
 Wellington v. Murdough, xii. 281. 
 
 156. Any obscurity in the meaning of contracts may be removed by refer- 
 ence to the situation of the parties. Folsom v. Mer. Mut. M. Insurance Co., 
 xxxTiii. 414. Emery v. Webster, xiii. 204. 
 
 (c) In case of receipts. 
 
 157. A receipt, signed by the plaintiff, acknowledging the payment of the 
 judgment in issue, is prima facie evidence, though not under seal. Clark v. 
 Mann, xxxiii. 268. 
 
 158. So far as a bill of lading is a receipt, it may be controlled by parol 
 proof, in a suit between the parties to it. O'Brien v. Gilchrist, xxxiv. 554. 
 
 159. Parol evidence is admissible to vary or contradict a written receipt. 
 Bichardson v. Beede, xliii. 161. 
 
 (d) To control or explain records and judgments. 
 
 160. Where a creditor has a note against joint promisors, secured by mort- 
 gage upon real estate, and he acknowledges payment upon the margin of the 
 record, from the promisors, and discharges the mortgage, the acts and declara- 
 tions of one of the promisors may control and overcome the evidence of pay- 
 ment from the margin of the record. Patch v. King, xxix. 448. 
 
 161. Where the officer's return, upon a warrant for a town meeting, did not 
 show that the copies were attested, or that they were posted in conspicuous 
 places, evidence that the copies were attested, and posted in public and con- 
 spicuous places in the town, will not cure the defect. And it is only admissi- 
 
230 evid:ence. 
 
 ble for the purpose of showing that the officer ought to be permitted to amend 
 his return, and when it appears he is willing to amend it. Fossett v. Bearce, 
 XXIX. 523. 
 
 162. Whether an appeal has been taken from a judgment of a justice of 
 t}ie peace must be determined from the record. Parol evidence is inadmis- 
 sible upon that point. Gammon v. Chandler, xxx. 152. 
 
 163. In a suit upon a poor debtor's bond, parol testimony is inadmissible 
 for the plaintiflF, to show that one of the justices was appointed by the 
 officer, before the hour appointed for the disclosure ; or, that the debtor dis- 
 closed a note which was not appraised ; or, that the debtor had conveyed his 
 property in fraud of his creditors. Ayer v. Fowler, xxx. 347. 
 
 164. An officer, by his testimony as a witness, cannot contradict his re- 
 turn, that, upon a levy of land, he had delivered seizin to the judgment 
 creditor. Cowan v. Wheeler, xxxi. 439. 
 
 165. An officer's return cannot be explained or varied by parol. Orover 
 V. Howard, xxxi. 546. Huntress v. Tiney, xxxix. 237. 
 
 166. Parol testimony is inadmissible to prove the allegation of a plea in 
 abatement, that, after an appeal had been taken, the writ had been altered 
 without leave of Court. Levant \. Rogers, xxxii. 159. 
 
 167. In a suit against an officer, (who had attached property, and taken a 
 receipt for the same,) for not delivering either the property or the receipt, 
 it is not competent for the defendant to show, in mitigation, that the pro- 
 perty was of a value less than was stated in the return. Allen v. Doyle,- 
 XXXIII. 420. 
 
 168. In an action upon a judgment, it is inadmissible to prove, that prior 
 to its rendition, a part of the claim, upon which it was founded, had been 
 paid. Bird v. Smith, xxxiv. 63. 
 
 169. So, in an action upon a security, given in satisfaction of a judgment, 
 whether the payment had been made to the nominal plaintiff or to a party 
 having an equitable interest therein. Bird v. Srmth, xxxiv. 63. 
 
 170. If the ground of a judgment be not shown by the record, it may be 
 shown by parol. Dunlap v. Olidden, xxxiY. 517. Bogers v. Lihhey, xxxv. 
 200. Emery v. Fowler, xxxix. 326. 
 
 171. Copies of the record of a justice of the peace cannot be explained 
 or controlled by parol or extraneous evidence. Even the original writ can- 
 not be admitted to contradict the copy. Holden v. Barrows, xxxix. 135. 
 
 172. Where an execution appears to be satisfied in part, by a levy, evi- 
 dence is inadmissible to show that sucb property did not, in fact, belong to 
 the debtor, and that the value of it had been refunded by the plaintiff to the 
 real owner. Sawyer v. Lawrence, XL. 256. 
 
 See Bills, &c., 97. 
 Evidence, 386. 
 
 IV. PRESUMPTIVE EVIDENCE. 
 
 173. R. S. of 1841, c. 146, § 25, does not create a bar, but only a pre- 
 sumption of payment of a judgment, which presumption may be rebutted. 
 Brewer v. Thames, xxviii. 81. Jackson v. Nason, xxxviii. 85. 
 
 174. The poverty of the debtor, a demand by the creditor, and a i;eply by 
 
EVIDENCE. 231 
 
 the debtor, " that he would come up soon, and do something about it," are 
 sufficient to repel the presumption. Brewer v. Thames, xxviil. 81. 
 
 175. Parties to contracts are presumed to know and use language legiti- 
 mately, and parol evidence, that language is used in a different sense, is 
 inadmissible. Littlefield v. Littlefield, xxtiii. 180. 
 
 lie. Cattle are not presumed to be lawfully going at large. There must be 
 proof that the town gave permission. Perkins v. B. B. Co., xxix. 307. 
 
 177. An absolute deed, for a good and valuable consideration, carries with 
 it the presumption, that the grantee holds the land conveyed to his own use ; 
 and this presumption cannot be rebutted by parol. Philhrook v. Delano, 
 XXIX. 410. 
 
 178. Any one dealing with a person whom he knows to be a broker, may 
 be presumed to know, from the nature of a broker's business, that he is act- 
 ing as agent for some third person. Baxter v. Duren, xxix. 434. 
 
 • 179. A conveyance of land, belonging to a co-partnership firm, in which 
 all the co-partners join, carries with it a presumption, in the absence of proof, 
 that the consideration money went to the benefit of the firm. Lincoln v. 
 White, XXX. 291. 
 
 180. Where evidence was admitted for defendant, upon condition, that he 
 would prove another material and connected fact, which he was unable to do, 
 the proceedings having transpired in the presence of the jury, the Court wiU 
 presume they disregarded the evidence, though not expressly instructed so to 
 do. Bangor v. Brunswick, xxx. 398. 
 
 181. If a paper, without being submitted to the Court, be handed to the 
 witness, as a release, and he is allowed to testify without objection to its 
 sufficiency, it is to be presumed the opposing party waived all objections to it. 
 Bullen V. Arnold, xxxi. 583. 
 
 182. In a trial involving the validity of a collector's sale, for taxes, though 
 a part only of the requisite proofs be positive and direct, yet, if the suit be 
 brought more than thirty years after the sale, the jury may presume that the 
 tax was duly authorized and assessed, and that all other proceedings requisite 
 to the validity of the sale, were properly had. Freeman v. Thayer, xxxiii. 
 76. 
 
 183. If a party does not present his objection to a witness' testifying, at 
 the earliest opportunity, it is to be presumed that the objection is waived. 
 Stuart V. Lake, xxxiii. 87. 
 
 184. The lapse of twenty years furnishes a legal presumption, that a debt, 
 though secured by a mortgage of land, has been paid ; but such presumption 
 may be rebutted by parol. Sweetser v. Lowell, xxxiii. 446. 
 
 185. If there be no evidence of the time or circumstances of the indorse- 
 ment of a negotiable note, or of any knowledge by the indorsee of any infirm- 
 ity in the note, the presumption of law is, that the indorsement was made 
 prior to the pay-day, and in the regular course of business, and without 
 knowledge on the part of the indorsee, that the note was subject to any pre- 
 existing equities. Walker v. Davis, xxxiii. 516. 
 
 186. There is no presumption in law, that an unnegotiable note, of the 
 same amount of a pre-existing book debt, was taken as payment of the debt 
 Bartlett v. Mayo, xxxiii. 518. 
 
 187. Where the grantor of land remains in possession after the conveyance, 
 a legal presumption arises that he is tenant to the grantee ; but it may be 
 repelled by parol. Larrabee v. Lumbert, xxxiv. 79. 
 
232 EVIDENCE. 
 
 188. In the absence of controlling proof, the legal presumption is, that by 
 a deed of conveyance duly executed and recorded, the title passes ; that the 
 grantor had sufficient seizin to enable him to convey ; and that the seizin and 
 title correspond with each other. ' Bleihen \. Dwinel, xxxiv. 133. Bolster 
 V. Gushman, xxxit. 428. 
 
 189. On the question, whether a will shall be established, there is no legal 
 presumption of the testator's sanity. Cilley v. Gilley, xxxiv. 162. 
 
 190. A non-user of a right for twenty years, acquired by use to maintain a 
 dam, unimpeded by any dam below it on the same stream, furnishes presump- 
 tive evidence of an extinction of the right by abandonment ; but it may be 
 rebutted. Farrar v. Cooper, xxxiv. 394. 
 
 191. A servitude is presumed to be extinguished, when the proprietor of 
 an estate, charged with it, is permitted, for a sufficient length of time, to 
 manage it in such manner as to preclude the exercise of the rights arising 
 out of that servitude. Farrar v. Cooper, xxxiv. 394. 
 
 192. Where there appeared to have been a material alteration in an officer's 
 return upon a legal precept, and no suggestion was offered, that the alteration 
 was not made by the officer conformably to the facts : — Held, that the pre- 
 sumption was, not that a fraud had been committed, but that the alteration 
 was rightfully made before the signing of the return. Bootliby v. Stanley, 
 XXXIV. 515. 
 
 193. The giving of a negotiable note for a simple contract, raises a pre- 
 sumption of payment ; but such presumption may be overcome by testimony. 
 Shumway v. Seed, xxxiv. 560. 
 
 194. Proof that prohibited sales were made at the store bf a trader, of 
 articles belonging to him, by a clerk in his employ, does not alone create a 
 legal presumption of guilt in such trader, though he have knowledge of such 
 sales and receive the pay for the articles sold. State v. Tibbetts, xxxv. 81. 
 
 195. Possession of personal property is sufficient evidence of ownership, 
 until controlled by evidence of a superior title. Millay v. Butts, xxxv. 139. 
 Linscott V. Trash, xxxv. 150. 
 
 196. Possession of land, for twenty years, by a mortgagee, without any 
 payment of principal or interest by the mortgager or any other negotiations, 
 in regard to the land, is presumptive evidence of foreclosure. Blethen v. 
 Dwinel, xxxv. 556. 
 
 197. Possession of the land by the mortgager, for twenty years, is pre- 
 sumptive evidence that the mortage debt has been paid. Blethen v. Dwinal, 
 xxxv. 556. ' 
 
 197. Until the expiration of twenty years from the recovery of a judgment, 
 there arises, from lapse of time, no degree of presumption, that the judgment 
 has been paid. Thayer v. Mowry, xxxvi. 287. 
 
 198. A conveyance is not presumed to have been made to one in possession 
 of land for maiiy years, against his express admissions, that no such convey- 
 ance has been made. Boxbury v. Huston, xxxvii. 42. 
 
 199. Where no objections are made to the legality of the records of a pro- 
 prietary, it is a presumption of law, that they have been ihade conformably to 
 the requirements of the statutes in force at the time of the transactions there- 
 in recorded. Propi-'s of Long Wharf v. Palmer, xxxvii. 379. 
 
 200. If the presumption of payment of a judgment be attempted to he 
 overcome by evidence of the continued insolvency of the judgment debtor, 
 from the fact, that soon after its recovery, he failed in business, no legal in- 
 
EVIDENCE. 233 
 
 ference will arise, that his insolvency continued afterwards. Jackson v. 
 Nason, xxxviii. 85. 
 
 201. If a person on trial for an alleged offence, offer no evidence of his 
 good character, no legal inference can arise, from such omission, that he is 
 guilty of the offence charged, or that his character is bad. State v. Upham, 
 XXXVIII. 261. 
 
 202. "Where, by the records, the school district officers appear to have been 
 qualified by a magistrate, the presumption is, in the absence of aU testimony, 
 that they were made by the proper recording officer. Tozier v. S. D. No. 
 2, Vienna, xxxix. 556. 
 
 203. The effect of deeds and contracts, made in a foreign country, without 
 any evidence before the Court of what it may be, is presumed to be the same 
 as if made within our own jurisdiction. Whidden v. Seelye, xl. 247. 
 
 204. In an action upon a mortgage, (which was given to secure three notes, 
 the two having the longest pay-day having been paid shortly after maturity,) 
 the note first due was not produced, nor any evidence given of its loss, or 
 that it remained unpaid: — Held, that, after a lapse of thirty years, payment 
 may be presumed. Mathews v. Light, xi. 394. 
 
 205. The character in which the parties to a note sign the same is presum- 
 ed to be correctly exhibited by the writing itself, untU the contrary be prov- 
 ed. Lord V. Moody, XLI. 127. 
 
 206. An indorsement of a note by the payee, is presumed to have been 
 made at the date of the note, in the absence of proof to the contrary. 
 Parker v. Tuttle, xli. 349. 
 
 207. Ownership is not established by a deed to the defendants from a 
 party not shown by the evidence to have had title in him, while it does 
 appear from the evidence, that a third party has in himself an older and ap- 
 parently, a perfect outstanding title ; and the presumption, in the absence of 
 proof in such case, is, that the possession follows the superior title. Side- 
 linger V. Hagar, xn. 415. 
 
 208. The Court cannot presume that he, who assumes to convey as owner, 
 is such in fact, or undertake to supply a link in the chain of title, whose ex- 
 istence is rendered probable, but which is not in the case. Sidelinger v. 
 Hagar, xli. 415. 
 
 See Evidence, 223. 
 Pkbsumption. 
 
 V. BURTHEN OF PROOF. 
 
 209. It is incumbent on the demandant, claiming title under a deed from a 
 corporation, executed by one in the character of its agent, to prove that the 
 corporation, by a legal vote, had authorized such person to make the convey- 
 ance. Miller V. Uwer, xxvii. 509. 
 
 210. To discharge a note for merchantable boards and clapboards, the 
 burthen is upon the maker, to show that the articles set out and tendered, • 
 were of such quality and condition, as, under the statute, might be " offered" 
 or " exposed for sale," or " delivered on sale." Jones w. Knowles, xxx. 402. 
 
 211. If the defence to a promissory note be the illegality of consideration, 
 the onus is on the defendant. Emery v. Estes, xxxi. 155. 
 
 30 
 
234 EVIDENCE. 
 
 212. When the plaintiff's book and oath have proved the charges sued, if 
 the defendant rely upon payment made, the onus is on him to prove it, either 
 by cross-examination of the plaintiff, or from other sources. Witherell v. 
 Swan, xxxii. 247. 
 
 213. In an action of covenant broken, for not delivering articles according 
 to the obligation, a traverse of the plea, "that the defendant had not broken 
 his covenant," places the onus upon the plaintiff to prove negatively, that the 
 articles had not been delivered. Sawtelle v. Sawtelle, xxxiv. 228. 
 
 214. In some cases, a trustee may be discharged, if his disclosure show his 
 liability to be doubtful. In cases of prima facie liability, dependent upon 
 the facts put in issue, the burthen of f^ proof is upon the trustee. Butman 
 V. Halls, XXXV. 227. 
 
 215. Although one, contracting to pay money upon receiving a payment to 
 himself from a third person, does not defeat or diminish his liability by a 
 surrender of his authority to receive such payment ; still, his liability ceases, 
 if, by means of the insolvency of such third person, or for any other cause, 
 the contractee could not be damnified by the surrender. In which case, the 
 onus prolandi, that the contractee could receive no damage, is on the con- 
 tractor. Bead v. Davis, xxxv. 379. 
 
 216. When regulations, known to an operative, provided for a forfeiture of 
 wages, provided he left the service without having given previous notice, if 
 he would rely on the employer's consent, or upon having fulfilled the term of 
 labor contracted, the onus prolandi is on him. Harmon v. 8. F. Man. Co., 
 xxxv. 447. 
 
 217. Proof of the consideration, required to sustain a written contract 
 against an executor, must be furnished by the party enforcing it. Walker v. 
 Patterson, xxxvi. 273. 
 
 218. In an action, by an indorsee of a witnessed note, made before Act of 
 1838, c. 343, took effect, which action was commenced after six years from 
 the inception of the note, the burden is on the plaintiff to prove that the note 
 was witnessed, and, if the witness be absent from the State, the genuineness 
 of his signature. Beed v. Wilson, xxxix. 585. 
 
 219. When the defendant justifies his acts, as having been done in the per- 
 formance of his duty, in removing obstructions in the highway, which acts 
 would otherwise have been a trespass on the rights of the plaintiff, the burden 
 is on him, to show that the highway, where the acts were done, was buUt 
 upon its location. Weed v. Silley, XL. 356. 
 
 220. In trespass quare clausum', the onus is upon the plaintiff to show af- 
 firmatively, the location of the monuments named in his deed, and that they 
 include the locus in quo. Bohinson v. White, XLli. 209. 
 
 See Akbitration, 54. 
 
 BiLM, 6z:c. 151, 172, 173. 
 Peesxtmption. 
 
EVIDENCE. 235 
 
 VI. EVIDENCE. AS APPLICABLE TO PARTICULAR SUBJECTS AND 
 
 ISSUES. 
 
 (a) Insanity. 
 
 (b) Usage. 
 
 (c) Fbaud. 
 
 (d) Handwkitino. 
 
 (e) Judgments and recohds. 
 
 (f) Ofpioeks' ketuhns. 
 
 (g) Records op Corpokations. 
 
 (h) Public eecobds, documents, oppiciai. acts, and certificates. 
 (i) Ancient books and deeds. 
 (j) ^ooK accounts. 
 
 (a) Insanity. 
 
 221. Insanity, occurring after a residence has been established, will not 
 prevent the acquisition of a settlement, if the residence be continued five 
 years without the ' receiving of pauper supplies. Machias y. East Mdchias, 
 XXXIII. 427. 
 
 222. The selectmen are empowered to adjudicate upon the question of in- 
 sanity, when applied to for warrant to send a person to the insane hospital for 
 that cause. Eastport v. East Machias, xxxv. 402. 
 
 223. A person, proved to be insane, would be presumed to continue so, 
 until the- contrary appeared, unless the want of mental soundness arises from 
 causes which are temporary only, in their influence. Weston v. Siggins, 
 XL. 102. 
 
 224. To invalidate a deed at common law, for the insanity of one of the 
 parties to it, an entire loss of the understanding must be shown. Hill v. 
 Nash, xLi. 585. 
 
 225. But weakness of intellect is a fact to be weighed by the jury, in 
 determining whether the conveyance was fraudulent. Sill v. Nash, xli. 585. 
 
 226. Where there is conflicting evidence on the question of insanity, the 
 jury must settle the question as one of fact. Hill v. Nash, xli. 585. 
 
 See Insane Persons. 
 
 (b) Usage. 
 
 227. When a usage, which may affect the rights of the parties, is present- 
 ed by the testimony, it becomes the duty of the Court to determine whether, 
 if proved to the satisfaction of the jury, it be reasonable and operative. God- 
 man V. Armstrong, xxtiii. 91. 
 
 228. Parties to a note, deposited in a bank in Boston, for collection, can- 
 not be afiected by a usage in the other banks, which has no existence in the 
 bank where it is lodged. Pierce v. Whitney, xxix. 188. 
 
 229. Upon a dispute, as to the contract upon which a shipmaster sailed a 
 vessel, evidence is admissible to prove the custom in such business. Perldns 
 V. Jordan, xxxv. 23. 
 
 230. If, after the commencement of a voyage, the vessel stops at a neigh- 
 boring port for additional men, under the plea of usage, such a usage must be 
 proved, as would show that the parties had reference to it when the insurance 
 was obtained. Folsom v. Mer. Mut. M. I. Co., xxxviii. 414 
 
236 EVIDENCE. 
 
 231. Usage, to be binding, must be uniform and universal. Folsom v. Mer. 
 Mut. M. I. Co., xxxYiii. 414. 
 
 (c) Fraud. 
 
 232. A partial failure of consideration of a note, arising out of fraudulent 
 misrepresentations respecting the quantity of timber trees then upon it, is 
 admissible while in the hands of the seller, or of one having no superior rights. 
 Hammatt v. Emerson, xxvii. 308. Coburn v. Ware, xxx. 202. 
 
 233. And, if the purchaser sells a portion of the land to another, and gives 
 to the seller, in part payment, a note signed by such other as principal, and 
 the purchaser as surety, the latter may set up fraud. HarXmatt v. Emerson, 
 XXVII. 308. 
 
 234. To make a party liable, the representation must have been false, 
 fraudulently made, and have occasioned damage. Haw/matt v. Emerson, 
 XXVII. 308. 
 
 235. Where one has made a positive representation, or professed to speak 
 from his own knowledge, vpithout having had any knowledge on the subject, 
 the falsehood is disclosed, and the intention to deceive inferred. Hammatt v. 
 Emerson, xxvii. 308. 
 
 236. The representations made by plaintiff's agent to defendant, are ad- 
 missible on the question of fraud. But the inducements which operated on 
 the mind of the agent are inadmissible. Hammatt v. Emerson, xxvil. 308. 
 
 237. The fact, that the assured, in his affidavit, estimated the value of his 
 goods at $2800, and the jury returned a verdict of $1853 only, is not such 
 evidence of fraud and false swearing as would justify the Court in granting a 
 new trial. Moore v. Pro. Ins. Co., xxix. 97. * 
 
 238. On motion to reject an award, the affidavit of the party is not evi- 
 dence that he was fraudulently induced to enter into the submission. Smith 
 V. Smith, xxxii. 23. 
 
 239. When goods have been obtained by false representations, it is allow- 
 able, in order to establish the fraudulent intent, to prove that false represen- 
 tations, with the fraudulent intent, were made by the defendant, about the 
 same time to other persons. Cragin v. Tarr, xxxii. 55. 
 
 240. Declarations of a party, made more than two years prior to a convey- 
 ance of land to him, and not connected with it, are inadmissible as evidence 
 to prove fraud in the conveyance. Littlefield v. Oetchell, xxxii. 390. 
 
 241. Fraud, in the procurement of a deed of land, can be established only 
 upon proof that the grantee, or his agent, did some act or made some repre- 
 sentation, which was deceptive or false, knowing it to be' so. Larrabee v. 
 Larrdbee, xxxiv. 477. 
 
 242. It is fraud in a person to acquiesce in the use of his name, by another, 
 without authority, to the injury of innocent parties ; and the law wiU not 
 permit him to deny the authority of the assumed agent. Forsyth v. Bay, 
 XII. 382. 
 
 See 'Fs.A.VD. 
 
 (d) Handwriting: 
 
 243. Upon the question of the genuineness of a signature, evidence as to 
 
EVIDENCE. 237 
 
 it, resemblinff the writing of the party may be given by a witness who has 
 feen himS • and su/witness may state his belief as to its genuineness. 
 Eophins V. Megquire, xxxv. 78. . ^ j j;„f 
 
 244 Upon such evidence, it is competent for the jury to find a verdict 
 that the signature is genuine. EopJciks v. Megquire, xxxY. 78. 
 
 (e) Judgments and records. 
 
 245 When a grantee has been evicted by virtue of a judgment recovered 
 against him, that judgment is legally admissible, in an action on the cove- 
 nLts of the deed, to prove eviction. And, if the grantor had notice of, and 
 an opportunity to appear and defend that suit, it is evidence against him, to 
 prove the title of the party recovering, but not otherwise. Hardy v. Nelson, 
 XXVII. 525. 
 
 246 A judgment is evidence of the amount of indebtedness between the 
 parties to it ; but not as to third persons, not privies t\iex&io S argent j.ba^ 
 mond, xxvii: 539. Parsons v. Gopeland, xxxiii. 370. Trustees of P. J!. 
 School V. Fisher, xxxiv. 172. Glass v. Nichols, xxxv. 328. 
 
 247. If it appear by the record of a judgment, rendered in another State, 
 that the Court had no jurisdiction of the parties, such judgment will not be 
 received here as having any force or validity whatever. Middlesex Bank v. 
 Butman, xxix. 19. 
 
 248. A written statement, made and signed by the justices before whom 
 a poor debtor disclosed, not purporting to be a record of their proceedings, is 
 not admissible as evidence. Bandall v. Bradbury, xxx. 256. 
 
 249. A certified copy, by a justice of the peace, of a record of a judgment 
 rendered by him, is the proper evidence, on a plea of nul tiel record, to sup- 
 port an action of debt on the judgment. Wentworth v. Keazer, xxx. 336. 
 
 250. But it is competent for the defendants to prove, by parol, that what 
 purports to be such a certified copy was not authentic. Wentworth v. Keazer, 
 xxx. 336. 
 
 251. One, who has been a justice of the peace, has no authority to certify 
 copies after two years from the expiration of his commission. Authentica- 
 tions by him, after that time, are merely void. Wentworth v. Keazer, xxx. 
 336. 
 
 252. In a suit against one as indorser of a writ, the docket entry, together 
 with the extended record of the original action, both stating that the defend- 
 ant indorsed the writ, is not sufficient evidence of that fact. Wilson v. Soils, 
 xxxii. 85. 
 
 253. The writ itself, if to be found, is the only evidence in such case. 
 Wilson V. Soils, xxxii. 85. 
 
 254. In a suit upon a judgment, recovered before a justice of the peace, 
 the plaintiff is bound to establish the existence of the record. It is not suf- 
 ficient to introduce a book, alleged to contain the record, without some proof 
 of its authenticity. Wentworth v. Keazer, xxxiii. 367. 
 
 255. The allegations of a former writ, in which the present defendant had 
 recovered judgment, as plaintiff, may be used as evidence of his admissions, 
 although the present plaintiff was neither party nor privy to such suit. And 
 the record of the former suit is evidence of such allegations. Parsons v. 
 Gopeland, xxxiii. 370. 
 
238 EVIDENCE. 
 
 256. A writ of entry had been brought against two persons jointly. They 
 united in the defence, which prevailed in this Court, upon a report of certain 
 facts agreed, and of certain testimony introduced. In a suit by one of the 
 defendants against the other, for the same land: — Held, that the demandant 
 could not use that report in evidence. 'Frye v. Gragg, xxxt. 29. 
 
 25J. An officer, who has attached goods by order of the plaintiff, when 
 sued by one who has been adjudged trustee, because he held those goods 
 under a fraudulent sale, may use in evidence, as privy to the attaching plain- 
 tiff, the record of the judgment against the trustee. Glass v. Nichols, xxxv. 
 328. 
 
 258. Where the owners of adjoining lots agreed, in writing, to submit a 
 disputed line to referees, and subsequently, but before the decision of the 
 referees, one of the parties conveyed his lot to a third person, having no 
 notice of the agreement ; an award, afterwards made, is not admissible in a 
 suit involving the same line, between one of the parties to the agreement and 
 the grantee of the other. Emery v. Fowler, xxxviii. 99. 
 
 259. Where the amount of damages in a suit pending, with other matters, 
 between the parties, is submitted to arbitrators, their award of the amount 
 for which the defendant shall be defaulted is admissible and conclusive. 
 CusMng v. Babcock, xxxviii. 452. 
 
 260. In debt upon the judgment of a justice of the peace, whose commis- 
 sion had expired more than two years before this trial, if the minutes upon 
 the justice's docket are such as to enable the Court to perceive that they 
 would authorize an extended record, they wiU be sufficient. Grosvenor v. 
 Tarhox, xxxix. 129. 
 
 261. A copy of the record of an adjudication by selectmen upon the ques- 
 tion of insanity, when acting within their jurisdiction, is the legal evidence of 
 their judgment. Fastport v. Belfast, XL. 262. 
 
 262. Such judgment cannot be impeached by parol. If erroneous, it may 
 be reversed. Eastport v. Belfast, xi. 262. 
 
 263. In a suit upon a note, given for a patent right, proof that such patent 
 was void for being an infringement of a prior one is not admissible, unless 
 that fact has been determined by the Circuit Court of the United States. 
 Elmer v. Pennell, XL. 430. 
 
 264. Whether the defendant is as weU known by the name in the indict- 
 ment as by another, a former indictment against her by the same name, to 
 which she pleaded not guilty, is competent evidence. 'State v. Homer, Xt. 
 438. 
 
 265. In an action to recover, from a stockholder, the amount of a creditors 
 execution against a corporation, the organization and existence of the corpor- 
 ation must be proved, if denied. The former judgment obtained may not be 
 conclusive of these facts. Hudson v. Carman, xli. 84. 
 
 (f ) Officers^ returns. 
 
 266. In case, against the present defendant, for the rescue of a debtor of 
 the plaintiff from an officer, the return of the officer, on the writ, that he had 
 arrested the body of the debtor, and that he was rescued by the present de- 
 fendant, is not conclusive. Francis v. Wood, xxvili. 69. 
 
 267. Title, by levy, must appear by the officer's return. The creditor's 
 declarations are not evidence. Jackson v. Woodman, xxlx. 266. 
 
EVIDENCE. 239 
 
 268. The return of the officer, in a levy of real estate, that the appraisers 
 were discreet and disinterested men, is conlusive of that fact. Orover v. How- 
 ard, XXXI. 546. 
 
 269. In a suit, by an officer, upon a receipt given for property attached, the 
 officer's return, upon the execution, that he seasonably made a demand upon 
 the receiptor, is not an act required in his official duty, and therefore not evi- 
 dence. Bicknell v. Hill, xxxiii. 297. 
 
 270. An officer's return, upon a writ of attachment, is conclusive that the 
 property therein described has been attached. Barling v. Dodge, xxxvi. 
 370. 
 
 271. The return of an officer, upon an execution against a corporation, is 
 sufficient evidence that he held the execution for the purpose of collecting it. 
 Came v. Bridgham, xxxix. 35. 
 
 272. Where the same person, who made an attachment as deputy, had ceas- 
 ed to be a deputy, but was a coroner when the execution was put into his 
 hands, with orders to satisfy it from the property attached, and he did not so 
 apply the property ; in an action against the sheriff for such neglect, his re- 
 turn upon the execution is admissible so far as it relates to the demand. 
 Smith V. Bodfish, xxxix. 136. 
 
 273. A collector's return of his doings, upon his warrant to collect taxes, 
 is prima facie evidence of the facts therein stated, in an action against him 
 by a person assessed. Caldwell v. Hawkins, xi. 526. 
 
 274. The certificate of appraisers of property attached on mesne process, 
 upon the back of a writ, and adopted by the officer as a part of his return, 
 together with the latter, is competent evidence as to the disposition of the 
 property sold. Kennedy v. Pike, xliii. 423. 
 
 See Officek, 21-28. 
 
 ExEcriiON, 62, 82, 90. 
 
 (g) Records of corporations. 
 
 275. When a subscription of capital stock is made, on condition that a 
 certain number of shares shall be subscribed for before the corporation shall 
 be organized, the records of its proceedings, showing that the required num- 
 ber had been taken, are competent evidence. Fen. & Ken. JR. B. Co. v. 
 Dunn, XXXIX. 587. 
 
 276. And where a subscription is based on a further condition, that the 
 company is not to contract for the construction of its road until a given num- 
 ber of shares are taken, the books of the directors, in the absence of coun- 
 tervailmg evidence, are competent to show a fulfillment of the condition if 
 the directors had authority to act. Pen. & Ken. B. B. Co. v. Dunn, xxxix. 
 587. 
 
 277. And the doings of directors, de facto, whose acts have been ratified 
 by the corporation, are not objectionable, although the records show another 
 board to have been previously elected, but no evidence of their having ac- 
 cepted the trust. Pen. & Ken. B. B. Co. v. Dunn, xxxix. 587. 
 
 278. The records of a corporation regularly kept, without any proof to 
 aestroy their efi-ect, are competent to show its corporators, and whether the 
 required number of shares were taken. Pen. B. R. Co. v. Dummer, xi. 
 17i. ren. R. B. Co. v. W7l^te, xli. 512. 
 
 279. The acceptance of a charter, creating a corporation, must be proved 
 
240 EVIDENCE. 
 
 by the best evidence in the power of the party relying upon it. The books 
 of a corporation are the regular evidence of its doings. Hudson v. Carman, 
 XLI. 84. 
 
 See CoEPOEATioNS, 86 — 119. 
 
 (h) Public records, documents, official acts, and certificates. 
 
 280. Letters, addressed to a public officer in his official capacity, when 
 received, become public documents, and may be proved in like manner. But 
 extracts or portions of them are inadmissible. Hammatt v. Emerson, xxvii. 
 308. 
 
 281. Inquisitions, examinations, depositions, affidavits and other -written 
 papers, when they have become proofs of its proceedings, and are found re- 
 maining on the files of a judicial Court, are judicial documents. Hammatt 
 V. Emerson, xxvir. 308. 
 
 282. Where an indictment alleges the person, deceased, to be late of B., 
 in the County of P., the right of the administrator, to prosecute the indict- 
 ment, may be proved by letters of administration, granted by the Probate 
 Court of another County. State v. Bangor, xxx. 341. 
 
 283. In ascertaining whether a State, tax of an earlier year was or was not 
 piid, the books kept by the State Treasurer may be received in evidence, 
 Hodgdon v. Wight, xxxvi. 326. 
 
 284. A statute, passed several years after a forfeiture of taxes had accrued, 
 allowing the land to be redeemed within a limited time, may be taken into 
 account, to show that the State never intended to preclude the proprietor from 
 redeeming. Hodgdon v. Wight, xxxvi. 326. 
 
 285. No objections can be made against the admissibility of proprietary 
 records, by one claiming title from grantors, who were members of such pro- 
 prietary during the time the records were made. Fropr's of Long Wharf v. 
 Palmer, xxxvii. 379. 
 
 286. By the R. S. of 1841, c. 44, § 12, the protest of any foreign or inland 
 bill of exchange, or promissory note or order, duly certified, by any notary 
 public, under his hand and official seal, is made legal evidence of the facts 
 stated in such protest, as to th? same, and also as to the notice given to the 
 drawer or indorser, in any court of law. Ticonic Bank v. Stackpole, xli. 
 302. 
 
 287. The word " certificate" in the 6th section of said chapter, is equiva- 
 lent to the word " protest" in the 12th section, when it is under the hand 
 and seal of the notary. Ticonic Bank v. Stackpole, xli. 302. 
 
 288. By common and commercial law, the certificate of a foreign notary, 
 under his hq,nd and notarial seal, of the presentment of a foreign biU for ac- 
 ceptance or payment, and of his protest, is received in all Courts. Such pro- 
 tests prove themselves. Ticonic Bank v. Stackpole, xli. 302. 
 
 289. A note payable in another State may be treated as a foreign bill, 
 so far as to admit the protest of a foreign notary as evidence in a suit against 
 the indorser. Ticonic Bank v. Stackpole, xli. 302. 
 
 290. The certificate of protest, by a notary public, of a dishonored note, 
 contained these words: — "I duly notified J. S., indorser of said note, of 
 said non-payment;" — Held, tha,t it was a verbal notice. Ticonic Bank T. 
 Stackpole, xli. 321. 
 
EVIDENCE. 241 
 
 291. Where the acts of assessors are ma,terial, they may be established by 
 tbe evidence of their books of assessments. Milo v. Gardiner, xli. 549. 
 
 See Identitt. 
 
 Impounding, 1. 
 
 (i) Ancient dates and coeval fads. 
 
 292. The Court permits a departure from the strict rules of evidence, in the 
 use of papers, private memoranda, deeds, wills and other solemn instruments 
 in writing, of an ancient date, to prove the existence of coeval facts. Old- 
 town v. Shapleigh, xxxiii. 278. 
 
 293. In order to prove in what town the residence of a pauper was on a 
 particular day, twenty-two years before the trial, a writ drawn and dated on 
 that day, in which he was plaintiff, and his residence was named, was allowed 
 to be read in evidence, although it was never served, and although the attorney 
 who drew it had no knowledge of the residence, except as stated to him by 
 the pauper when it was drawn. Oldtown v. Shapleigh, xxxiii. 278. 
 
 (j) Book accounts. 
 
 294. Where a party relies upon his own book and suppletory oath, it is 
 indispensable that he should testify that the services were performed or the 
 articles delivered. Dwinel v. Pottle, xxxi. 167. 
 
 295. An attorney at law, by his book and suppletory oath, may prove his 
 retainer and his services rendered in court. Codman v. Caldwell, x:kjli. 560. 
 
 296. When the plaintiff, in aid of his book account, testifies that the article 
 was delivered, not to the defendant, but to another person for the defendant's 
 use, the book is to be excluded, unless there be other proof that such third 
 person was defendant's agent. Soper v. Veazie, xxxii. 122. 
 
 297. A plaintiff's book is not competent evidence to prove a sale of goods, 
 unless he can testify, or prove aliunde, a delivery. Godfrey v. Codman, 
 XXXII. 162. 
 
 298. A book, kept by a surveyor of lumber, in which are entered the names 
 of the buyer and seller, the quantity surveyed and time when, if it be the 
 only book kept by him, from which he draws off the charges for his services, 
 IS admissible, with his suppletory oath, in a suit by himself for his fees. 
 Witherell v. Swan, xxxii. 247. 
 
 299. A book must contain the original entry, made at the time, which is to 
 be proved by the party. It must be in his handwriting, and show the amount 
 of the claim. Wttherell v. Swan, xxxii. 247. Towle v. Blake, xxxviii. 
 95. Hooper v. Taylor, xxxix. 224. 
 
 300. No particular form of a book is necessary ; neither is its construction, 
 or the material of which it is made, material; but it must appear to have 
 been kept intelligibly, fairly and truthfully. Witherell v. Swan, xxxii. 247 
 Hooper v. Taylor, xxxix. 224. 
 
 301. The shop books of the plaintiff, with his suppletory oath, are admissi- 
 ble to show sale and delivery to defendant's wife. Furlong v. Hysom, xxxv. 
 o32. ^ 
 
 302. In an action for services rendered, if better evidence than a book 
 cnarge may reasonably be supposed to exist from the nature of the services, 
 
 31 
 
242 EVIDENCE. 
 
 the book, with the suppletory oath, is inadmissible. Towle v. Baker, 
 XXXVIII. 95. 
 
 303. So it is inadmissible to prove price of services. Towle v. Baker, 
 XXXVIII. 95. 
 
 304. To support a charge against the defendant for procuring a writ in the 
 name of a third person, the plaintiff's book, with his suppletory oath, is ad- 
 missible. Waterhouse v. Fogg, xxxviii. 425. 
 
 305. A book, in which the entries were made by plaintiff's wife by his 
 direction, and when the plaintiff could not write, is not admissible. Luce v. 
 Doane, xxxviii. 478. 
 
 306. A wife, who thus keeps her husband's book, is incompetent to sus- 
 tain the charges therein, by her suppletory oath. Luce v. Doane, xxxviii. 
 478. 
 
 307. Testimony, as to the habits of the party, in having his accounts thus 
 kept by his wife, after his return from his work, is inadmissible. Luce v. 
 Doane, xxxviii. 478. 
 
 308. It is not an insuperable objection to a book charge, that the quantity 
 or weight of the articles charged, are omitted. Hooper v. Taylor, xxxix. 
 224. 
 
 309. No charges for cash, above forty shillings, can be proved by book and 
 suppletory oath. Hooper v. Taylor, xxxix. 224. 
 
 310. Where charges are made from day to day, upon a slate, and then 
 transcribed, as often as from two to four weeks, upon his book, such hook, 
 with suppletory oath, is admissible. Hall V. Glidden, xxxix. 445. 
 
 See Evidence, 103 — 108. 
 
 VII. ADMISSIONS, DECLAHATIONS AND CONPESSIONS. 
 
 (a) Res gestae. 
 
 (b) Admissions and declarations op parties. 
 
 (c) Declarations of privies and agents. 
 
 (d) Declarations of third persons. 
 
 (a) Ses gestae. 
 
 311. The declarations of a party to a third person, and not appearing to 
 be a part of any business transaction, cannot be introduced by him as testi- 
 mony in his own favor. Handly v. Gall, xxx. 9. 
 
 312. Declarations, made by a third person, when in the performance of an 
 act, and illustrative of its purpose, are admissible as part of the act. Corinth 
 V. Lincoln, xxxiv. 310. Stewart v. Hanson, xxxv. 506. 
 
 313. In order to the admission of declarations as part of an act, the act 
 must have a tendency to establish the allegations which the party undertakes 
 to sustain. Corinth v. Lincoln, xxxiv. 310. 
 
 314. Evidence, that a person, after having performed various jobs of labor 
 in the line of his business, in the same and in neighboring towns, occasion- 
 ally returned to the house of a particular family, where he stayed while out 
 of employment, has no tendency to prove his residence in that family. His 
 declarations, therefore, while going to, and returning from, that house, are in- 
 admissible. Corinth v. Lincoln, xxxiv. 310. 
 
EVIDENCE. 243 
 
 315. Where a person, when delivering an article to the defendant, declared 
 the reason to be! that, by a previous bargain, the article was to remain he 
 defendants property, udess paid 'for, which had not been done i-^e?^, the 
 declaration was a part of the delivery, and therefore admissible m evidence. 
 Stewart v. Hanson, xxxv. 506. 
 
 316 Bes gestae, of which declarations may constitute a part, are sucti 
 transactions only as the parties were connected with while the negotiation be- 
 tween them was incomplete. WUson v. Sherlock, xxxvi. 295. 
 
 317 Where the defendant claims title to property, under a third person, 
 bv certain acts between that third person and the plaintiff, a letter ^vritten by 
 such third person, and delivered to the plaintiff at the time of such acts, is 
 admissible in evidence, as against the defendant, as part of the res gestae. 
 Beach V. Learned, xxxvii. 110. 
 
 318 The declarations oif a person, competent to be a witness, assigning 
 the reasons for not doing a certain act, are no part of the res gestae. Sargent 
 V. Hampden, xxxviii. 581. 
 
 319. After a transaction is closed, and the parties to it have separated, the 
 declarations of others having no connection with it, though relating to it, 
 are not admissible in evidence, as part of the res gestae. Battles v. Batchel- 
 der, XXXIX. 19. 
 
 320 In a suit upon a note, the plaintiff having shown that the defendant's 
 signature was made by his wife in his absence, and that the note was gven 
 by her in exchange for another note of the defendant, of like amount : — Held, 
 that the cotemporaneous conversation in regard to the transaction, was part 
 of the res gestae, although he could not show a ratification by the husband. 
 Shaw V. Emery, xxii. 59. 
 
 (b) Admissions and declarations of parties. 
 
 321. Evidence of the declarations of the indorser, as to the contract, prior 
 to the indorsement of the note and in reference to it, showing the terms upon 
 which it was received, is admissible. Fullerton v. Bundlett, xxvii. 31. 
 
 322. Parol proof of admissions, made in conversations or declarations, is 
 limited to what was said or done at the same time, relative to the same sub- 
 ject. Hammatt v. Emerson, xxvii. 308. 
 
 323. Where proof is introduced respecting admissions made in and proved 
 by biUs and answers in chancery, letters and other documents, the whole bill, 
 answer, letter or other document, become testimony in the case. Hammatt 
 V. Emerson, xxtii. 308. 
 
 324. The declarations of the defendant that he had kept and would keep 
 spirituous liquors for sale, although they did not immediately accompany the 
 act of selling, as proved, are admissible. New Gloucester .y. Bridgham, 
 xxviii. 60. 
 
 325. The affidavit of the assured, made in accordance with the policy, and 
 his examination before the company's agent, after having been introduced 
 without objection, are competent evidence as to the amount of the loss. 
 Moore V. Pro. Ins. Co., xxix. 97. 
 
 326. Where one partner has assigned his interest in the partnership effects 
 to the other, to secure the latter for debts due him from the former, but re- 
 mains liable for the debts, and entitled to his share of the surplus of the firm, 
 his declarations are evidence against the fiim, in an action in the name of the 
 
244 EVIDENCE. 
 
 firm, brought for the benefit of the assignee alone. Foster v. Fifield, xxix. 
 136. 
 
 327. In a prosecution for an illegal sale of intoxicating liquors, the declara- 
 tions subsequently made by the defendant, as to his intentions, are inadmissi- 
 ble. State V. Greenleaf, xxxi. 517. 
 
 328. The declarations of a party, made more than two years prior to a 
 conveyance of land to him, and having no connection with it, are not admissi- 
 ble to prove fraud. Littlefield v. Getchell, xxxii. 390. 
 
 329. The allegations of a former writ, in which the present defendant had 
 recovered judgment as plaintifi", may be used as evidence of his admissions, 
 although the present plaintiif was neither party nor privy to such suit. Par- 
 sons V. Copeland, xxxiii. 370. 
 
 330. Offers made by a party in a negotiation for a compromise, are not ad- 
 missible against him. But his statement of facts concerning the subject of 
 the negotiation may be proved, though made during the negotiation. Cole v. 
 Cole, XXXIII. 542. 
 
 331. The previous declarations of a plaintiff, that he supposed he should 
 have to commence a suit against the defendant for the benefit of a third person, 
 and that if such third person should bring a suit, he should not object, will 
 not preclude the plaintiff from using such third person as a witness, in a suit 
 against such defendant, unless it be proved that the suit is, in fact, for the 
 benefit of the witness, or that he will have some benefit from it, or be injuri- 
 ously affected if the defendant recover. Cole v. Cole, xxxiir. 542. 
 
 332. In an action by the payee of a draft against the drawer, it is not 
 admissible to prove, that when taking the draft, the plaintiff admitted the 
 debt to have been . contracted by the drawer as agent of the drawee, and 
 thereupon promised that the drawer should never be held accountable. Fair- 
 field V. Hancock, xxxiv. 93. 
 
 333. The declarations of one co-partner, made after the dissolution, con- 
 cerning transactions prior to the dissolution, are admissible to charge the 
 co-partnership. Hinckley v. Oilligan, xxxiv. 101. 
 
 334. Declarations by the vendor of property, made in disparagement of his 
 title, and while he was in possession of the property, are admissible to dis- 
 prove such title ; and it is not necessary that at the time of making them, the 
 property should be exhibited, or that any act should be done in relation to it. 
 Parker v. Marston, xxxiv. 386. 
 
 335. Declarations, made by one part owner or tenant in common, admitting 
 a joint liability of aU the owners, are not admissible against the others. 
 McLellan v. Cox, xxxti. 95. Page v. Swanton, xxxix. 400. 
 
 336; It is a joint interest, and not a community of interest, .that renders 
 the declarations of one part owner evidence against the others. McLellan 
 V. Cox, XXXVI. 95. 
 
 337. It is a general rule, that the admissions of one co-partner, with 
 reference to the legitimate business of the co-partnership, are deemed the ad- 
 missions of each and all its members. Oilmore v. Patterson, xxxvi. 544. 
 
 338. Declarations of the defendant in no wise relating to the issue, are 
 not admissible in evidence ; yet, if such declarations are so intermingled by 
 him with matters pertinent to the issue, that they cannot be separated with- 
 out modifying the pertinent matter, or rendering it obscure, then the whole 
 of his declarations are admissible. Lord v. Moore, xxxyii. 208. 
 
EVIDENCE. 245 
 
 339 In an action against an officer, for not attaching certain goods of the 
 debtor, not in his posLsion, declarations of the plaintiff, tending o show 
 that he had released all claim by attachment to any personal estate of the 
 original debtor, are admissible. Weld v. Chadbourne, xxxvii. 221. _ 
 
 340 In a suit for money paid for defendant, as his surety on a note, sign- 
 ed at the request of a member of his family, which note plaintiff was coni- 
 
 pelled to pay Eeld, the declarations of the defendant of his dissent to 
 
 what the plaintiff had done, uncommunicated to the plaintiff or to the payee 
 of the note, are inadmissible. Powers v. Nash, xxxvil. 322. 
 
 341 In an action against an officer for levying an execution against a 
 debtor, upon property claimed by the plaintiff, the debtor's declarations, not 
 made in the presence of the plaintiff, are inadmissible. Bussell v. Clark, 
 xxxTili. 332. 
 
 342. Where a sale of property is alleged to have been fraudulent, the 
 vendee cannot give in evidence the declarations of the vendor in previously 
 offering to sell the same to other persons. Fisher v. True, xxxviii. 534. 
 
 343. But one having a right to impeach the sale may prove the declara- 
 tions of the vendor, tending to show a fraudulent intent, made before the 
 sale. Fisher v. 2V«e, xxxtiii. 534. 
 
 344. Declarations of the vendor of personal property, while claiming title 
 in the whole or in part, and while in possession, are admissible to affect the 
 title of those claiming under him. McLanathan v. Patten, xxxix. 142. 
 
 345. Representations by the vendor as to the condition of personal proper- 
 ty, made a month before the sale was consummated, are too remote to be 
 admitted in evidence. Bryant v. Crosby, XL. 9. 
 
 346. The declarations of a party to the record, or of one identified in 
 interest with him, are admissible, as against such party. Fickett v. Swift, 
 XLI. 65. 
 
 (c) Declarations of privies and agents. 
 
 347. Where plaintiff claimed a note Under a gift, made by the dopor two 
 days before his death ; and the defendant claimed it under a gift from the 
 same person, made seven days prior to his decease : — Held, that the declara- 
 tions of the donor, as well as the gifts under which the parties claimed, made 
 during the sickness of which he died, and prior to the time of the gift under 
 which the defendant claimed, and within two months next before the decease, 
 tending to show that his intention was to give this note to the plaintiff, are 
 inadmissible by the plaintiff. Parker v. Marston, xxvii. 196. 
 
 348. Representations, made to the defendant by the plaintiff's agent, are 
 admissible on the question of fraud. But the inducements which operated on 
 the mind of the agent are inadmissible. Ham/matt v. Eijnerson, xxvii. 308. 
 
 349. In an action against the indorser, a letter of the maker addressed to 
 the holder, informing him that he should not be able to pay it at maturity, 
 and requesting an extension, is not admissible to excuse presentment. Pierce 
 V. Whitney, xxix. 188. 
 
 350. Conversation by the moderator and others, in town meeting, relating 
 to a subject legally under its consideration, cannot be proved, as evidence 
 against the town. Morrill v. Dixfield, xxx. 157. 
 
 351. In a suit against a depositary, to recover a fund lodged with him, to 
 be paid to the plaintiff, when the depositor should have satisfied himself of a 
 
246 EVIDENCE. 
 
 fact connected with the deposit, evidence that the depositor had declared him- 
 self satisfied of the fact, is inadmissible, unless made known to the defendant 
 before the suit. Carle v. Bearce, xxxiir. 337. 
 
 352. In a suit in the name of the assignor for the benefit of the assignee, 
 the defendant cannot prove the assignor's declarations, made subsequenfly to 
 the assignment. Gillighan v. Tebhetts, xxxiir. 360. 
 
 353. The declarations of a corporation director, respecting past transac- 
 tions, are not admissible against the corporation. Franldin Bank v. Cooler, 
 xxxvi. 179. Franklin Bank v. Cooper, xxxix. 542. 
 
 354. The declarations of a trustee, in whom is the legal interest, though 
 acting whoUy for the benefit of another, are admissible, though they affect 
 the interest of the cestui que trust alone. Franklin Bank v. Cooper, xxxvi. 
 179. 
 
 355. The declarations, representations or admissions of an agent, author- 
 ized to make a contract, made as inducements to, or while making, the con- 
 tract ; or when made by the agent, accompanying the performance of any act 
 done for the principal, are admissible against the principal. Franklin Bank 
 V. Steward, xxxvii. 519. 
 
 356. When otherwise made, or when made at a subsequent time, they are 
 inadmissible. Franklin Bank v. Steward, xxxvii. 519. 
 
 357. The declarations of the cashier, giving information as to a past trans- 
 action of the bank, though such transaction pertained to his own department 
 of the business of the bank, are inadmissible against the bank. Franklin 
 Bank v. Steward, xxxvii. 519. Burnham v. Ellis, xxxix. 319. 
 
 358. A surety on a note to the bank, having in his possession the property 
 of his principal, with which he might have secured himself by attachment, 
 sent his agent, after the pay-day, to inquire of the bank whether the note had 
 been paid. To that inquiry, the cashier, in the banking room, declared that 
 it had been paid ; whereupon, the surety, relying upon that information, sm- 
 rendered the property to the principal, who, soon afterwards, became and 
 continued to be insolvent. In a suit by the bank against the surety : — Heli, 
 that the declaration of the cashier was inadmissible against the bank. Per 
 Shepley, C. J., and Tennet, and Howakd, J. J., — Rice, and Appleton, 
 J. J., dissenting. Franklin Bank v. Steward, xxxvii. 519. 
 
 359. Upon the issue whether the money claimed in the suit, belonged to 
 the plaintiff or her late husband, after evidence by defendant, showing that 
 the plaintiff had no money or property at the time of her husband's death, or 
 for some year or two previous, the declarations of her husband within that 
 period to the contrary, and in regard to the management of the property, are 
 admissible. Linscott v. Trask, xxxviii. 188. 
 
 360. Upon a question of settlement, the declarations of a pauper while in 
 the act of removing, or while acting with reference to removing from one town 
 to another, are admissible. Richmond v. Thomaston, xxxviii. 232. 
 
 361. But his declarations, whUe about his ordinary business, as to his 
 future intentions or expectations, are inadmissible. Richmond v. Thomaston, 
 XXXVIII. 232. 
 
 362. Where plaintiff claims title to personal property under a mortgage, 
 and introduces the mortgager to sustain it, the defendant may prove his declara- 
 tions, made subsequent to the mortgage, to contradict his testimony ; and the 
 jury may determine, from the whole testimony, whether the mortgage was 
 fraudulent. Stone v. Redman, xxxviii. 578. 
 
EVIBENCE. 247 
 
 363. The acts and declarations of a deputy sheriff, after his official term 
 had ceased, are not admissible in an action against the sheriff for his depug s 
 neglect, unless they refer solely to the official duty remaining upon him. His 
 declarations or letters as coroner, respecting his past acts as deputy, are in- 
 admissible. Smith V. Bodfish, xxxix. 136. 
 
 364. The declarations of an agent, while in the transaction of the business 
 confided to him, or of officers of a bank, made to one transacting business 
 with them in their official capacity, are binding upon his principal. Burn- 
 ham V. Ellis, XXXIX. 319. Franhlin Bank v. Cooper, xxxix. 542. 
 
 365. But his recital of a past transaction of the business of his principal, 
 although at the time of such recital, his agency continued, is inadmissible. 
 Burnham v. Ellis, xxxix. 319. 
 
 366. Declarations and acts of a debtor, respecting property, alleged by an 
 attaching creditor thereof, or one representing him, to have been fraudulently 
 conveyed to the party claiming it, made or done before the supposed sale, are 
 admissible if they tend to prove the fraudulent design. White v. Chadbourne, 
 xii. 149. 
 
 367. The presence of the vendor in court, when such evidence is offered, is 
 no objection to the testimony ; nor is it to be excluded by the subsequent call 
 of the vendor as witness by the defendant. White v. Chadbourne, xli. 149. 
 
 368. The acts or declarations of a vendor, made after other persons have 
 acquired separate rights in the same subject matter, are inadmissible to dis- 
 parage then- title. Dennison v. Benner, XLI. 332. 
 
 369. The declarations of a subscriber to capital stock in a railroad copora- 
 tion, made long after the organization, in relation to his subscription, are not 
 admissible to show that the corporators did not act in good faith in receiving 
 such subscription. Pen. B. B. Co. v. White, xli. 512. 
 
 (d) Declarations of third persons. 
 
 370. Where settlement is the subject of controversy, the declarations of 
 the pauper respecting his intentions, in going from one place to another, made 
 days before he left, and unaccompanied by any acts, are not admissible. Ban- 
 gor V. Brunswick, xxvii. 351. Corinth v. Lincoln, xxxiv. 310. Rich- 
 mond V. Thomaston, xxxviii. 232. 
 
 371. A party cannot prove, by his own witness, what that witness has said, 
 or what his mind had been, on former occasions. Law v. Payson, xxxii. 
 521. 
 
 372. Declarations by a third person, when in the performance of the act, 
 and illustrative of its purpose, are admissible as a part of the act. Corinth 
 V. Lincoln, xxxiv. 310. 
 
 373. So where they accompany an act, and exhibit the reason or purpose 
 of the act, as where they specify a past transaction as the reason of the 
 present act. Stewart v. Hanson, xxxv. 506. 
 
 374. Where the plaintiff referred to a third person to show the corner 
 boundary of his land, and such third person pointed out a stump as such 
 corner, the act is admissible. Chapman v. Twitchell, xxxvii. 59. 
 
 375. Neither the declarations nor certificates of a deceased person, con- 
 cerning the lots and boundaries of lots between individuals, of which he was 
 never owner nor possessor, are admissible. Chapman v. Twitchell. xxxvii. 
 59. 
 
248 EVIDENCE. 
 
 . 376. Upon a question of settlement, the declarations of the pauper while 
 in the act of removing, or while doing an act with reference to removing, 
 from one town to another, are admissible to show his intention. Bichmond v. 
 Thomaston, xxxviii. 232. 
 
 377. The general rule is, that the declarations of one, who may be a wit- 
 ness, are inadmissible. Fisher v. True, xxxviii. 534. 
 
 378. The plaintiff sent money to defendant by mail, which he denied ever 
 having received, and the plaintiff afterwards paid the debt. Subsequently, 
 the plaintiff brought a suit to recover the money. Defendant offered to prove, 
 that in 1836, there were found, in the house where the mail-carrier of the sup- 
 posed letter lived in 1834, a number of letters secreted in the wall and under 
 the floors of the house, broken open, bearing date in 1834, post-marked at 
 other places than where found, and directed to persons in another town; — 
 Held, that this evidence or any declarations by such mail carrier, unaccom- 
 panied by any acts, was inadmissible. Fihe v. Crehore, xi. 503, 
 
 See Paitpek, 48, 74, 75. 
 
 Vni. OTHER PRINCIPLES. 
 
 379. Under R. S. of 1841, c. 69, the defendant being the maker of a 
 negotiable note, cannot prove usury by his own oath in defence, where the 
 plaintiff is indorsee. Myrich v. Hasey, xxvii. 9. 
 
 380. The mere fact that the taxes were paid to a collector, who had a 
 warrant for their collection, affords no satisfactory proof of payment by duress. 
 Smith V. Readfield, xxvii. 145. 
 
 381. Where evidence is introduced by letters or documents, the whole, and 
 not extracts or portions of them, are received. Hammatt v. Emerson, xxvii. 
 308. 
 
 382. If a paper be recognized by a witness as containing a correct state- 
 ment of the facts as they were known to him at the time, when it was first 
 presented to him, he may be permitted to use it for the purpose of refreshing 
 his recollection, although it had been drawn up by another person more than 
 twenty years after the events transpired. Chamberlain v. Sands, xxvii. 458. 
 
 383. A party cannot discredit his own witness, except when he is obliged 
 to call him as an attesting witness. Chamberlain v. Sands, xxvil. 458. 
 
 384. The mere receipt of interest for a stipulated time, from the principal 
 by the creditor, after the maturity of the note, is not sufficient evidence of an 
 agreement to give further credit. Mariner's Bank v. Abbott, xxviii. 280. 
 
 385. In an action upon a poor debtor's bond, any legal proof showing the 
 debtor's ability to pay the debt, or some part thereof, is admissible. Call v. 
 Barker, xxviil. 317. 
 
 386. Parol evidence is admissible to show that a note of $500, payable on 
 demand with interest, was the one secured by said mortgage, although such a 
 note does not correspond with the one described in the mortgage. Bourne v. 
 Littlefield, xxix. 302. Sweetser v. Lowell, xxxiii. 446. 
 
 387. A memorandum upon the margin of an indorsed negotiable note, 
 representing it to be the "property of A. B.," is not, of itself, proof that A. 
 B. had any interest in it at the time of the trial. Sibley v. Lumbert, xxx. 
 253. 
 
EVIDENCE. 249 
 
 388. A partial payment of a note, to avoid the statute of limitations, may 
 be proved by parol. Sihley v. Lumhert, xxx. 253. 
 
 389. A firm was dissolved, upon an agreement that one of the members 
 should assume and pay the company debts. A creditor, upon being informed 
 of the facts, replied that he was satisfied with it: — Held, that such reply 
 was not evidence, from which a jiiry could find that he had discharged the 
 other member of the firm. Chase v. Vaughan, xxx. 412. 
 
 390. On motion to set aside a verdict for excessive damages, it is not 
 competent to prove, ly the jurors, their mode of computation. Eovey v. 
 Luce, xxxr. 346. 
 
 391. There is no positive rule of law, which prohibits a jury, in a criminal 
 case, from convicting upon the unsupported testimony of a particeps criminis. 
 State V. Cunningham, xxxi. 355. 
 
 392. The memoranda of a surveyor of lumber are not of themselves evi- 
 dence. Ayer v. Sawyer, xxxii. 163. 
 
 393. The rule, that testimony collateral to the issue cannot be contradicted, 
 is confined to testimony introduced in cross-examination, by the party who 
 purposes to contradict it ; and does not apply to testimony introduced by the 
 other party. State v. Sargent, xxxii. 429. 
 
 394. Where a charter authorized the erection of a dam, subject to the 
 duties enumerated in the charter ; and the selectmen of the town were con- 
 stituted the exclusive judges, (in controversies between the corporation and 
 other parties,) of the performance of such duties ; in an action to recover 
 damages for the insufficiency of the sluice, dsc, testimony tending to prove 
 matters within the jurisdiction of the selectmen as judges, is inadmissible. 
 Bassett v. Carleton, xxxii. 553. 
 
 395. A witness will not be permitted to testify what course of action he 
 should have pursued, if certain specified acts had not occurred. Palmer v. 
 Pinkham, xxxiii. 32. 
 
 396. In an action against the maker of a note, payable on time, brought by 
 an indorsee, who obtained it for value, and before maturity, and without 
 knowledge of mistake in its date, evidence that the note bore date, by mistake, 
 earlier than the day upon which it was actually made, is inadmissible to 
 establish a defence that the action was prematurely brought. Huston v. 
 Young, XXXIII. 85. 
 
 397. It is not competent for an objecting party, in order to exclude a wit- 
 ness, to prove that the witness has made admissions of his interest in the 
 case. Stuart v. Lake, xxxiii. 87. 
 
 398. In the defence of a criminal prosecution, for a defect in a highway, 
 established by the County Commissioners, it is not competent to prove irreg- 
 ularities in their preliminary proceedings, even by their own records. State 
 V. Madison, xxxiii. 267. 
 
 399. Where testimony is confiicting, the rule is not to be prescribed to the 
 jury, that a fact is to be considered unproved, when the opposing witnesses 
 are equal in number, means of knowledge, capacity and credit. Sweetser v. 
 Lowell, XXXIII. 446. 
 
 400. A party may introduce a paper, draivn up in the hand^vriting of the 
 other though not signed, with a view to connect it with other evidence, to 
 estahhsh a disputed fact. Bartlett v. Mayo, xxxiii. 518. 
 
 401. Leading questions to a witness are such as suggest answers favorable 
 
 32 
 
250 EVIDENCE. 
 
 to the party asking them ; and the Court will, in some cases, allow them. 
 Parsons v. Bridgham, xxxiv. 240. 
 
 402. In some cases, a party may show, by his own affidavit, the loss of a 
 paper, in order to the introduction of secondary evidence. Mason v. Tall- 
 man, XXXIV. 472. 
 
 403. Such affidavit is not admissible as evidence of any fact for the con- 
 sideration of the jury. Mason v. Tallman, xxxiv. 472. 
 
 404. When a question, put by one party, has been but partly answered' 
 by the witness, the residue of the answer may be elicited by the other party. 
 Mason v. Tallman, xxxiv. 472. 
 
 405. If one party introduce a mutilated paper, the other party is not bound 
 to explain the mutilation. Booihhy v. Stanley, xxxiv. 515. 
 
 406. If one of the conditions in a mortgage be, that the mortgager shall 
 maintain the mortgagee at a house upon the land, and the mortgagee have 
 the right of electing to be maintained upon the land, such election may be 
 proved by parol. Norton v. Webh, xxxv. 218. 
 
 407. Where the plaintiff referred to a third person, to show the comer 
 boundary of his land, and such third person pointed out a stump as such cor- 
 ner, the act is in the nature of an admission, and admissible in evidence 
 against the plaintiff. Chapman v. Twitchell, xxxvii. 59. 
 
 408. Traditionary evidence, in relation to the boundaries of a private estate, 
 when not identical with one of a public nature, is inadmissible. Chapman v. 
 Twitchell, XXXVII. 59. 
 
 409. The authenticity of a plan cannot be established by certificates made 
 upon it by one deceased, who was not the surveyor. Chapman v. Twitchell, 
 XXXVII. 59. 
 
 410. Rules of evidence may be changed by the Legislature without violat- 
 ing any of the provisions of the constitution. State v. Day, xxxvii. 244. 
 
 411. The Act of 1853, c. 49, § 9, making proof of a delivery of intoxicating 
 liquors sufficient evidence of sale, when an unlawful sale is alleged, is apph- 
 cable to support an indictment' for being a common seller under c. 211, § 8, 
 of the Act of 1851. State v. Day, xxxvii. 244. 
 
 412. On the trial of an indictment for larceny from a store, the goods 
 alleged to have been stolen may be exhibited to the witness, the supposed 
 owner, before he is required to describe the goods he has lost. State v. 
 Lull, XXXVII. 246. 
 
 413. And such witness may use a schedule, prepared by his clerk, under 
 his direction and inspection, by which to refresh his recollection as to the 
 prices of the goods stolen. State v. Lull, xxxvii. 246. 
 
 414. Where evidence tends to show that a trunk, containing stolen goods, 
 is the property of the defendant, and in it are found envelopes directed to him, 
 together with a pardon, purporting to come from the Governor of another 
 State: — Held, such envelopes and pardon are admissible. ^ State v. Lull, 
 XXXVII. 246. 
 
 415. In a writ, containing only the money counts, the proofs are limited to 
 the bill of particulars. Gooding v. Morgan, xxxvii. 419. 
 
 416. To show charges, made against him within six years from the com- 
 mencement of his action upon an account, the plaintiff cannot give in evi- 
 dence a set-off made and filed by the attorney of defendant, which was with- 
 drawn by leave of Court before trial. Theobald v. Stinson, xxxviii. 149. 
 
EVIDENCE. 251 
 
 417. But if such set-off had been personally filed by defendant, or the 
 items had been made in his handwriting, the act, and contents of the paper, 
 may be admissible. Theobald v. Stinson, xxxviii. 149. 
 
 418. The mere fact, that the existence of a road is proved to the jury, will 
 not authorize them to infer that it was of such width as to make it safe and 
 convenient. Eunt v. Bich, xxxviii. 195. 
 
 419. If a person, on trial for an alleged offence, offer no evidence of his 
 good character, no legal inference can arise, from such omission, that he is 
 guilty of the offence charged, or that his character is bad. Nor will such 
 omission authorize an argument against his general character. State v. Up- 
 ham, XXXVIII. 261. 
 
 420. Notice to the drawer, of the non-payment of a draft, cannot be prov- 
 ed by the affidavit of an attorney at law, who afterwards deceased, without 
 evidence that the act was in discharge of some official duty, and in the ordi- 
 nary course of business. Bradbury v. Bridges, xxxviii. 346. 
 
 421. A party, who uses a deposition in a trial, cannot corroborate it by 
 the disclosure of the same witness, made and sworn to before two justices of 
 the peace and quorum. Smith v. Morgan, xxxviii. 468. 
 
 422. Where personal property was leased to the defendant, and persons 
 agreed upon to appraise a portion of it, their appraisal of the whole of it, 
 without other proof, is not evidence in an action against him, although it is 
 stipulated that the whole shall be appraised. Great Pond M. & A. Co. v. 
 Buzzell, XXXIX. 173. 
 
 423. A judgment against a principal in trespass for the act of the servant, 
 rendered after the pleading of the general issue in the action against the 
 servant, is admissible under that plea. Emery v. Fowler, xxxix. 326. 
 
 424. The testimony of a deceased witness is receivable, when the witness 
 can state the substance of the whole testimony relating to the issue, but not 
 otherwise. 'Emery v. Fowler, xxxix. 326. 
 
 425. The certificate of two justices of the peace and quorum, is evidence 
 only of the facts required to be inserted therein by R. S., 1841, c. 148, § 31. 
 Winsor v. Clark, xxxix. 428. 
 
 426. A witness, employed by a creditor to appear at the time of the dis- 
 closure of his debtor, cannot testify as to his intentions, of bringing a suit 
 upon the bond, formed at the time of the hearing. Winsor v. Clark xxxix 
 428. 
 
 427. "Wilfully corrupt and false testimony on a material point, does not so 
 absolutely discredit the witness as to any other fact to which he may testify, 
 that, as matter of law, the jury are bound to disregard his testimony Parsons 
 V. Muff, XLi. 410. Merrill v. Whitefield, xii. 414. 
 
 _ 428. A question, which may be answered in a manner to disclose evidence 
 given before a grand jury, is inadmissible. State v. Knight, xiiii. 11. 
 
 429. A witness cannot be called upon to state his testimony, given on a 
 former occasion, m a trial where the same evidence is relevant State v 
 Kmght, xliii. 11, 
 
 430. The result of scientific knowledge and experience is proper for the 
 consideration of the jury. The Court will not determine the truth or ab- 
 surdity of such facts. State v. Knight, xiiii. 11. 
 
 431. A diagram, approximating a perfect representation, when exhibited by 
 
252 EXCEPTIONS. 
 
 a witness qualified to give explanation, may be used to illustrate his meaning. 
 State V. Knight, xiiii. 11. 
 
 See Akbitbation, 56. 
 Notice, &c., 6. 
 
 EXCEPTIONS. 
 
 I. IN WHAT CASES EXCEPTIONS LIE, AND WHAT ARE GROUNDS 
 
 OF EXCEPTIONS. 
 II. IN OTHER RESPECTS. 
 
 I. IN WHAT CASES EXCEPTIONS LIE, AND WHAT ARE GROUNDS 
 OF EXCEPTIONS. 
 
 1 . Exceptions will not be sustained on the ground that the presiding Judge 
 erred in declining to give a certain instruction to the jury, on request, unless 
 the exceptions show that the instruction requested was applicable to the case. 
 Thomaston v. Warren, xxviii. 289. 
 
 2. If part of an instruction requested be correct, and a part erroneous, the 
 whole request may be declined. Thomaston v. Warren, xxviii. 289. Tib- 
 hetts V. Baker, xxxii. 25. Bryant v. Crosby, xi,. 9. 
 
 3. Where the exceptions state, merely, that the " witness was objected to," 
 and admitted, without stating any cause of objection, no question is presented 
 for the consideration of this Court. Glidden v. Dunlap, xxviii. 379. 
 
 4. Where the instructions to the jury are too general, but the party is not 
 aggrieved thereby, this furnishes no sufficient cause for exceptions. Cope- 
 land V. Gopeland, xxviii. 525. 
 
 5. The District Court may exercise a discretionary power, in ordering or 
 refusing to order judgments of the Court to be set off, when it can be done 
 without a violation of the legal rights of parties. But when a set-off is not 
 authorized by law, and when it would deprive a party of any of his legal 
 rights, exceptions will lie. Bartlett v. Pearson, xxix. 9. 
 
 6. An amendment of a writ, by striking out of the account annexed a part 
 of the charges and credits, is within the discretion of the Court, and not 
 ground flf exceptions. Wight v. Stiles, xxix. 164. 
 
 7. Exceptions do not lie to the rulings of the District Court, in cases ap- 
 pealed from a decision of the County Commissioners. Banks v. Co. Com. 
 of Y. & G., XXIX. 288. 
 
 8. An omission of the presiding Judge to charge the jury in relation to 
 certain principles, not then brought to his consideration, and no request hav- 
 ing been made for such instruction, forms no ground for exception. Hatpt- 
 well V. Phipsburg, xxix. 313. State v. Gotdey, xxxix. 78. 
 
 9. The adjudication of the Judge of the District Court as to the facts in a 
 trustee disclosure, is conclusive. And exceptions can be sustained only when 
 it appears from the exceptions themselves, that he misapprehended or mis- 
 
EXCEPTIONS. 253 
 
 applied the law upon the facts as he had adjudged them to be, Fletcher v. 
 Clark, XXIX. 485. 
 
 10. When a party has pleaded, and a verdict has been found against him, 
 a motion to quash the indictment is not regularly before the Court, and the 
 overruling it is not subject to exceptions. State v. Barnes, xxix. 561. 
 
 1 1 . When the presiding Judge instructs the jury in a manner appropriate 
 to the facts of the case, and correctly as to the law, though not in terms as 
 requested, there is no cause for exceptions. State v. Barnes, xxix. 561. 
 
 ISJ. If a Judge rule, as matter of law, that a specified amendment cannot 
 be allowed, it is ground of exceptions. Rowell v. Small, xxx. 30. 
 
 13. Where a part of the testimony introduced was relevant and a part 
 irrelevant : — Held, that although the irrelevant part was seasonably objected 
 to, exceptions to the admission of it could not be sustained. Whitney v. 
 Cottle, xxx. 31. 
 
 14. Instructions to the jury cannot be excepted to by the party in whose 
 favor they were given. Rice v. Wallace, xxx. 252. Dunn v. Moody, xii. 
 239. RoUnson v. White, xill. 209. 
 
 15. Where the ruling of the Judge is, in itself, correct, it will be sustained, 
 although the reason he gave for it be incorrect. Prescott v. Hohbs, xxx. 345. 
 
 16. Exceptions from the District Court, upon proceedings under a petition 
 by the County Commissioners, for the location of lots, cannot be sustained. 
 County Gomm'rs v. Spofford, xxx. 456. 
 
 1 7. Though an inadmissible deposition may have been received, yet, if its 
 contents be not of a character to operate against the excepting party, the 
 verdict will not be disturbed. Bodge v. Greeley, xxxi. 343. 
 
 18. Positions of law, which a party may contend for at the trial, if not 
 presented as requests for instruction, do not furnish matter of exception, 
 unless they were directly noticed by the Court. Stowell v. Goodenow, xxxi. 
 538. Osgood v. Lansil, xxxiii. 360. State v. Straw, xxxiri. 554. Rog- 
 ers V. Ken. & Pen. B. R. Co., xxxviii. 227. Purrington v. Pierce, xxxviii. 
 447. Stone v. Redman, xxxviii. 578. 
 
 19. If the defendant, in offering to introduce an authenticated copy of a 
 judgment of a justice of the peace, also embrace proof of facts extraneous to 
 the record, the whole may be rejected. Tibhetts v. Baker, xxxii. 25. 
 
 20. If the defendant propose to read a letter addressed to himself from the 
 plaintiff, and one from himself in reply, it is no ground of exception, that 
 he was required first to read the one written by himself. Mudqe v. Pierce 
 xxxii. 165. J > 
 
 21. Exceptions to an instruction given to the jury, on the ground that there 
 was no evidence calling for such instruction, must show that fact, in order to 
 be sustamed. Bryant v. Couillard, xxxii. 520. 
 
 22. Where the Judge refers to the jury a question of law, there is no 
 ground for exceptions, if it clearly appears that the jury decided it correctly. 
 Osgood V. Lansil, xxxiii. 360. Woodman v. Ghesley, xxxix. 45. 
 
 23. Every position, respecting the admissibility of testimony, should be 
 distmctly presented to the presiding Judge for decision, before it can be made 
 the subject of exceptions. Lee v. Oppenheimer, xxxiy. 181 White v 
 Chadbourne, xli. 149. 
 
 r,nM; J° m" f^'^'Z' °^?' "^"'^^^' '" '"^*'^'"' ^* ^'^ discretion, exceptions do 
 not lie. Moody v. Emchley, xxxiv. 200. Rumsey y. Bragg, xxxT. 116. 
 
254 EXCEPTIONS. 
 
 Cummings v. BuckfieldB. B, B., xxxy. 478. Thornton v. Blaisdell, xxxvii. 
 190. State V. Lull, xxxvii. 246. Achorn v. Mattheivs, xxxviii. 173. 
 State V. Gonley, xxxix. 78. G. P. M. & Agri. Co. v. Buzzell, xxxix. 173. 
 Franldin Bank v. Stevens, xxxix. 532. Emerson v. McNamafa, xii. 565. 
 Smith V. Gorman, xxi. 405. 
 
 25. If answers are rejected by a Judge, because given in answer to ques- 
 tions which he supposed to be leading, it is ground of exceptions, if, in fact, 
 the questions were not leading. Parsons \. Bridgham, xxxiT. 240. 
 
 26. Exceptions cannot be sustained for the wrongful admission of testimo- 
 ny explaining a written contract, if the explanation shows nothing different 
 from the legal import of the contract itself. Ladd v. Dillingham, xxxit, 
 316. 
 
 27. Where an instruction assumes a fact, which was issuable and in dis- 
 pute upon the evidence, and material to a right decision of the question be- 
 fore the jury, exceptions are sustainable. Linscott v. Trash, xxxv. 150. 
 Whipple V. Wing, xxxix. 424. 
 
 28. Instructions, however erroneous, can form no available ground of ex- 
 ceptions, if, in fact, the excepting party sustained no injury. Neal v. Paine, 
 XXXY. 158. Beeman v. Lawton, xxxvii. 543. Whidden v. Seelye, xi. 
 247. 
 
 29. Exceptions do not lie to a statement, made by the Judge to the jury, 
 of what facts, in his view, the evidence proved. Hayden v. Bartlett, xxxv. 
 203. 
 
 30. Where an insurer, summoned as trustee of the insured, pleaded that 
 the burning was by design or gross carelessness, and the trustee's counsel ad- 
 mitted the burden of proof to be on him, as in criminal cases : — Held, to be 
 no ground for exception, that the instruction to the jury required the matter 
 relied on in defence to be proved beyond any reasonable doubt. Butman v. 
 JEohbs, XXXY. 227. 
 
 31. Exceptions lie to the erroneous rulings of the presiding Judge ; and 
 that is the only relief provided for. Palmer v. Pinhharfi, xxxvii. 252. 
 
 32. When it appears, from the finding of the jury, that the plaintiffs have 
 no title to the property sued for in trover, their requested instructions become 
 immaterial. Walker v. Blake, xxxvii. 373. 
 
 33. On a preliminary question to the Court, whether or not the action is 
 rightfully prosecuted in the name of the city, the admission of illegal testi- 
 mony furnishes no ground of exception, if there was sufficient legal proof to 
 warrant the decision given. Portland v. Bolfe, xxxvii. 400. 
 
 34. In an action, where the plaintiff's right to recover rests on the ground 
 that the defendant had violated his special agreement, the refusal to instruct 
 the jury that a committee, representing the plaintiffs, were competent to com- 
 plain of the infraction of the contract, is not open to exceptions, inasmuch as 
 it is immaterial. Ken. & P. B. B. Go. v. White, xxxviii. 63. 
 
 35. A party who is not allowed to prove a fact which could have no in- 
 fluence on the determination of the cause, or aid the party proposing such 
 proof, has no grounds of exception. Leisherness v. Berry, xxxviil. 80. 
 Hanson v. Kelley, xxxviii. 456. 
 
 36. In bastardy process, the question of the competency of the complain- 
 ant, as a witness, is one of fact to be determined by the Judge, and no excep- 
 tions lie to his determination. Jackson v. Jones, xxxviii. 185. 
 
EXCEPTIONS. 255 
 
 37. If a Judge omits to give instructions upon tlie effect of testimony, to 
 which his attention was not called, such omission is no ground of exceptions, 
 Purrington v. Pierce, xxxviii. 447. Stone v. Redman, xxxtiii. 578. 
 
 38. Under c. 246, § 12, of Act^ of 1852, the decisions of the presiding 
 Judge, of cases withdrawn from the jury by consent, in aU matters of law, are 
 open to exceptions only when such right is reserved. Andover v. Reed, 
 XXXIX. 41. Hersey v. Verrill, xxxix. 271. Roxhury v. Huston, xxxix. 
 312. Dunn v. Hutchinson, xxxix. 367. Mason v. Currier, xliii. 355. 
 
 39. A part of an instruction, thoiigh in itself erroneous, which, when con- 
 nected with the remainder, leaves no ground for supposing the jury were mis- 
 led by it, and other instructions on the same point, clearly proper, furnish no 
 ground of exceptions. Oxnard v. Swanton, xxxix. 125. 
 
 40. Whether exceptions lie to an order of the Judge, directing a re-com- 
 mitment of the report of commissioners, in partition ; quere. Ham v. Ham, 
 XXXIX. 216. 
 
 41. Objections to the allowance of amendments of writs, unauthorized by 
 law, can only be made available by exceptions. Herrich v. Oshorne, xxxix. 
 231. 
 
 42. By c. 246, § 13, of the Acts of 1852, all petitions for review may be 
 heard and determined by the presiding Justice, at any term held for the trial 
 of jury cases, " subject to exceptions to any matter of law by him so decided 
 and determined." Moody v. Larrahee, xxxix. 282. 
 
 43. The facts established by the testimony on such petition, and the ascer- 
 tainment of those facts, are solely for the determination of the presiding 
 Justice, to which exceptions do not lie. Moody v. Larrahee, xxxix. 282. 
 
 44. To the answer responsive to a question put without objection, no ex- 
 ceptions can be taken. State v. Nutting, xxxix. 359. 
 
 45. Inferences from the testimony are for the jury ; and the Court is not 
 authorized to instruct the jury that the evidence is insufficient. Cook v. 
 Brown, xxxix. 443. 
 
 46. Suggestions made by the presiding Judge, in the course of his charge 
 to the jury, as to any facts in the case, but which are left to their determina- 
 tion, are not open to exceptions. Phillips v. Veazey, xl. 96. 
 
 47. Although auditors neglect and refuse to report the facts by them found, 
 when requested by one of the parties, no exceptions lie. Closson v. Means 
 Xl. 337. ' 
 
 48. Exceptions cannot be sustained to a refusal to give instructions which 
 have already been substantially given. Dunn v. Moody, xii. 239. 
 
 49. Whether a party has used such due diligence as will entitle him to file 
 Items of cost, after the expiration of a year from the rendition of judgment, is 
 a question of fact, to be determined by the Judge at Nisi Prius, whose 
 decision is not open to exceptions. Farley v. Bryant, xli. 400. 
 
 50. If there is not sufficient evidence in a case to authorize a jury to find 
 the fact upon which a request for an instruction is based, the Judge is not 
 bound to give the instruction, whether in itself correct or not Pen R R 
 Co. V. White, XLI. 512. " ' " 
 
 51. When a Judge at Nisi Prius denies a petition for review, solely on 
 the ground that the facts presented would not, as matter of law entitle the 
 petitioner to retain a verdict, should one be found for him by the jury this 
 Court wiU determine the question raised by exceptions taken to such ruline 
 -t^merson v. McNamara, xli. 565. 
 
256 EXCEPTIONS. 
 
 52. A deed, having been once properly rejected, cannot be regarded as be- 
 fore the Court for admission, at a subsequent stage of the proceedings, when, 
 by the introduction of other testimony, the foundation had been laid for its 
 reception, unless it is again oflered in evidence ; and no exceptions can lie in 
 such case. Melcher v. Merryman, xii. 601. 
 
 53. Unless evidence is before the jury, which, with that offered and ex- 
 cluded, may be sufficient, if found true and viewed in the most favorable light, 
 to establish the proposition for which it was offered, the party offering it can- 
 not be regarded as prejudiced by the exclusion. Temple v. Partridge, 
 XLii. 56. 
 
 54. A party has no cause of exception to instructions given at his own re- 
 quest. Bohinson v. White, xlii. 209. 
 
 55. The refusal of the Court to order a nonsuit, on motion of the defend- 
 ant, is not subject to exception ; aliter, in regard to a ruling of the Court 
 ordering a nonsuit. Bragdon v. Insurance Co., xlii. 259. 
 
 U. IN OTHER RESPECTS. 
 
 56. No question, which is not presented by the bill of exceptions, is open 
 for the consideration of this Court. The legal conclusion is, that all other 
 necessary instructions were correctly given. White v. Jordan, xxvii. 370. 
 Moody V. Clark, xxvii. 551. Woodman v. Sheetup, xxxv. 464. 
 
 57. In the determination of a question, presented by a bill of exceptions, 
 the Court can consider only the testimony stated in the exceptions. Brewer 
 V. E. Machids, xxvii. 489. 
 
 58. This Court must consider the rulings or instructions of the Judge at 
 Nisi Prius, to be correctly presented by the bill of exceptions ; and ,must give 
 effect to the plain and obvious meaning of the language used. Codman v. 
 Armstrong, xxvni. 91. 
 
 59. When exceptions have been filed and allowed in the District Court, tp 
 any of its preliminary, collateral or interlocutory judgments, directions or 
 opinions, the exceptions must remain among the proceedings of that Court, 
 without being entered in this Court, until the action shall have been prepared, 
 by nonsuit, default or verdict, for its final disposition between the parties, in 
 that Court. Daggett v. Chase, xxix. 356. Witherell V. Bandall, xxx. 168. 
 Abbott V. Knowlton, xxxi. 77. 
 
 60. Exceptions cannot be sustained from the District Court, if no recogniz- 
 ance was entered into in that Court. And sureties cannot be waived. Hil- 
 ton V. Longley, xxx. 220. 
 
 61. Where an action was commenced for the support of a pauper, and a 
 verdict returned for the plaintiffs, and while that action was pending, on a mo- 
 tion for a new trial, the parties instituted another suit for the support of the 
 same pauper, and a verdict was returned for the defendants, and exceptions 
 filed, and, afterwards, the verdict in the first action was set aside ; — Held, 
 that the Court could only render such judgment in the latter action, as the 
 exceptions authorized. Bangor v. Brunswick, xxx. 398. 
 
 62. When an action, brought into this Court by exceptions from the Dis- 
 trict Court, is dismissed because irregularly here, no cost is allowed, unless 
 such dismissal ends the whole controversy. Sweetser v. Kenney, xxxi. 288. 
 
 63. A motion, made and persisted in, to have the verdict set aside, waives 
 
EXCEPTIONS. 257 
 
 exceptions to the rulings of the Judge. Cole v. Bruce, xxxii. 512. Ettis v. 
 Warren, xxxv. 125. 
 
 64. Although exceptions from the District Court may have been sustained, 
 yet, if it appear, that there are no facts in the case to be settled by a jury, such 
 final judgment may be entered by this Court as law may require. Waldo v. 
 Moore, xxxiii. 511. 
 
 65. In a case presented on exceptions, it is the province of the Court to 
 decide, merely, upon the legal correctness of the proceedings excepted to. 
 Miller v. Goddard, xxxiv. 102. 
 
 66. In this Court, when acting upon exceptions, it is too late to object to 
 the appearance in the Court below, of the attorney who filed the exceptions. 
 Wilson V. Wood, xxxiv. 123. 
 
 67. After exceptions have been filed and overruled, the prevailing party is 
 entitled to judgment. Swett v. Stuhhs, xxxiv. 178. 
 
 68. Where the respondent alleged inconstancy as an objection to the com- 
 plainant's being sworn in a bastardy process, and after hearing the proof, the 
 Judge excluded the complainant, it not being stated whether he considered 
 the fact of inconstancy proved or not ; exceptions, reciting the evidence, im- 
 pose upon this Court the duty of deciding the question of fact, and of adjudg- 
 ing thereon whether the exclusion was rightful or not. Murphy v. Glidden, 
 XXXIV. 196. 
 
 69. Exceptions, though not signed or written out before the rendition of the 
 verdict, are constructively taken and allowed in the progress of the trial, be- 
 fore the jury retire for consultation. Ellis v. Warren, xxxv. 125. 
 
 70. When afterwards filed and certified, it is done as of the times, (during 
 the trial and before the verdict,) when the respective occasions for taking them 
 occurred. Ellis v. Warren, xxxv. 125. 
 
 71. The excepting party is bound to produce the documents, which were 
 made a part of the case ; and, if a part of them are missing, he cannot com- 
 plain that a decision should be made upon the case as presented.- Woodman 
 V. Skeetup, xxxv. 464. 
 
 72. Until it be shown, that instructions, given to the jury, upon the 
 evidence, were erroneous, exceptions thereto must be overruled. Barling v. 
 Dodge, XXXVI. 370. 
 
 73. If, in a biU of exceptions, presented at Nisi Prius for allowance, the 
 Judge make wrongful alterations to the injury of the excepting party, a cor- 
 rection can only be had by mandamus. True v. Plumley, xxxvi. 466. 
 
 74. Exceptions to the report of a master, to avail, must either ie supported 
 by the special statements in that report, or by the production of the evidence 
 on which they rest. Miller v. Whittier, xxxvi. 577. 
 
 75. In a cause to be heard on exceptions, a motion made and filed at the 
 hearing, as to the amount of the judgment for costs, is irregular and cannot 
 be determined. Bradbury v. Andrews, xxxvii. 199. 
 
 76. Instructions, requested upon a branch of the defence which is contro- 
 verted, and which assume, that it is not so controverted, are properly rejected. 
 McGrillis V. Hawes, xxxvill. 566. 
 
 77. So, where the instructions are immaterial. McCrillis v Halves 
 XXXVIII. 566. ' 
 
 _ 78. More than one suit, where the parties are not the same, cannot be heard 
 m one bill of exceptions. Mayherry v. Morse, xxxix. 105. 
 
 33 
 
258 EXECUTIONS. 
 
 79. If evidence is admitted against the objection of one of the parties, and 
 subsequently the cause is left to the determination of the presiding Judge, 
 such objections must be considered as waived. Hersey v. FerriZ?, xxxix. 271. 
 
 80. County Commissioners, not being parties to the record, in an appeal 
 from their decision, cannot take exceptions to the rulings of the Court. Rip. 
 ley V. Go. Gomm'rs, xxxix. 350. 
 
 81. A party excepting to the exclusion of testimony offered by him, must 
 produce it to this Court, or it will be presumed that he has no just cause of 
 complaint. Small v. Sac. N. & Min. Co., XL. 274. 
 
 82. There are three parties to a bill of exceptions ; the parties to the suit 
 and the presiding Judge. After a bill of exceptions has been completed by 
 the allowance and signature of the presiding Judge, it is not competent for 
 him to make material alterations. Goodenow, J., dissenting. Nor can the 
 parties to the suit, or their counsel, by agreement, make alterations without 
 the assent of the Judge thereto. SheparcL v. Hull, xlii. 577. 
 
 83. If it appear to the Court that such material alterations have been made 
 by one party, with the assent of the Judge, they will be disregarded, and the 
 cause heard upon the bill as it originally stood. Shepard v. Hull, xlii. 577. 
 
 See COTJNTT COMMISSIONEBS, 62. 
 
 EXECUTIONS'. 
 
 I. OF ISSUING EXECUTIONS. AND THEIK VALIDITY, 
 
 n. LEVIES UPON REAL ESTATE. 
 
 III. LEVIES ON PERSONAL PROPERTY. 
 
 IV. BY WHOM DISCHARGED. 
 
 I. OF ISSUING EXECUTIONS, AND THEIR VALIDITY. 
 
 1 . If an execution be executed by one having authority, an omission of the 
 direction to the officer may be supplied under leave of Court. And, if there 
 be an unauthorized erasure of the direction, and a new and different one be 
 inserted, the precept may be restored. Itollins v. Rich, xxvii. 557. 
 
 2. But bona fide purchasers having no notice of the fraud, could not be 
 affected by such correction, made after their right accrued, unless the correc- 
 tion can be made from the record. If the record indicate facts which render 
 it probable that every thing has been done necessary to secure the object 
 attempted, and it can be shown that the law was complied with, a purchaser 
 cannot, with such notice, supplant the other party. Rollins v. Bich, xxvil. 
 557. 
 
 3. If an execution has been returned satisfied by a levy upon property, 
 which did not belong to the debtor, the creditor's remedy may be by action of 
 debt upon the judgment. Parlin v. Churchill, xxx. 187. 
 
 4. Where a mother has recovered judgment upon a previous adjudication 
 against the putative father of her illegitimate child, for a sum of money, she 
 may have the execution running against his body ; notwithstanding he may 
 have been discharged, upon taking the poor debtor's oath, upon his refusal to 
 
EXECUTIONS. 259 
 
 give bond for the performance of the original adjudication. McLaughlin v. 
 Whitteti, XXXII. 21. 
 
 5. The adjudication of the commissioners, appointed by the Court to de- 
 termine, upon an examination of a debtor's affairs, whether the execution 
 should or should not run against his body, as well as against his property, has 
 the character of a judgment, and cannot be set aside on motion to the Court. 
 Howe V. Newbegin, xxxiv. 15. 
 
 6. A justice of the peace has authority to renew an execution, at any time 
 within two years from the expiration of his commission, although, at the time 
 of doing it, he may be rightfully exercising the duties of an executive officer. 
 Jones V. Elliott, xxxv. 137. 
 
 II. LEVIES UPON REAL ESTATE. 
 
 (a) Generally. 
 
 (b) Appbaisers, and the appraisement. 
 
 (c) Return of the opficer. 
 
 (d) Retdbnino and recording the execution. 
 
 (e) Delivert op seizin. 
 
 (f ) Levies on equities op redemption, life estates, and interest 
 
 BY BONDS. 
 
 (g) Redemption, after an extent, or sale on execution. 
 
 (a) Generally. 
 
 7. Where one tenant in common conveys a portion only of the common 
 property by metes and bounds, a creditor of the grantee, who levies his execu- 
 tion upon an undivided share of the whole common estate, takes nothing by 
 his levy. Soutter v. Porter, xxvii. 405. 
 
 8. The levy of an execution upon an undivided portion of a part of a farm, 
 such part being specified by metes and bounds, the whole of which farm was 
 holden by the debtor as tenant in common with another, will be considered 
 valid, it seems, until the co-tenant has obtained partition and ousted the cred- 
 itor from the part so levied upon ; and until then, an action cannot be main- 
 tained on the judgment. Godwin v. Gregg, xxviii. 188. 
 
 9. And if the officer making the levy, as a coroner, held at the time one 
 commission as a coroner, and another as a justice of the peace, that wUl not 
 render the levy void. Godwin v. Gregg, xxviii. 188. 
 
 10. A " clapboard machine and a shingle machine," fastened into a saw 
 mUl, to be there used, wiU pass to the creditor or purchaser, by a levy upon 
 the real estate, or a sale thereof. Trull v. Fuller, xxvni. 545. 
 
 11. So, if such machines, thus situated and used, are mortgaged to another, 
 and the mortgage is recorded in the town clerk's office, and not in the county 
 registry, a levy upon the land, mill and appurtenances, wiU pass the machines. 
 Trull V. Fuller, xxviii. 545. 
 
 12. An attachment of a debtor's real estate, held in common with others, 
 will not prevent a partition by the others. And if such attachment be follow- 
 ed by levy, after the partition, it must be made upon the estate set out to the 
 debtor by the partition. Argyle v. Dwinel, xxix. 29. 
 
 _ 13. Under R. S. of 1841, c. 114, § 33, a levy of real estate, made upon a 
 judgment in a suit, wherein the declaration contained a common money count, 
 
260 EXECUTIONS. 
 
 and a count upon an account annexed, ■which account merely charged balance 
 due on an account and interest, is invalid as against a prior conveyance, 
 although the pai-ty claiming under the levy, offered to prove that the convey- 
 ance was fraudulent and void. Saco v. EopJdnton, xxix. 268. 
 
 14. Neither is the levy aided by a bill of particulars, and not attached to 
 the writ, though placed and continued within its folds. Saco v. Hopkinton 
 XXIX. 268. 
 
 15. Where a judgment in a writ of entry had been recovered, and the de- 
 mandant had paid the betterments allowed by the jury, if afterwards, an 
 execution against the defendant, and in favor of a third person, be levied by 
 a sale of his right in the land, in virtue of possession and improvement, the 
 sale conveys no right in the land, or money with the clerk, for betterments, 
 Parlin v. Churchill, xxx. 187. 
 
 16. A levy upon real estate is void, if it embrace more of the debtor's land 
 than was sufficient, at the appraisal, to satisfy the execution and the officer's 
 charges for his fees, and the expenses of the levy. Boyd v. Page, xxx. 460. 
 
 17. A levy, seasonably made after judgment, has relation to the time of the 
 attachment. Brown v. Williams xxxi. 403. 
 
 18. A levy of land by the number of its lot, and by reference to the deed 
 from the debtor's grantor, is a sufficient description by metes and bounds. 
 Goivan v. Wheeler, xxxi. 439. 
 
 19. A levy, which, with the debtor's land, also embraces a portion of 
 another's, will pass the debtor's land. Grover v. Howard, xxxi. 546. 
 
 20. Where one erected buildings upon another's land, and with his permis- 
 sion, and the owner afterwards conveyed to him by deed, the land and build- 
 ings, the grantee cannot claim against a levying creditor of the grantor, that 
 his erection of the buildings made them personal property. Orover v. How- 
 ard, XXXI. 546. 
 
 21. In a levy, an exception of " the buildings," will exclude from the levy 
 the land under them, and so much adjacent land as is necessary for their use. 
 Grover v. Howard, xxxi. 546. 
 
 22. In a levy, the taking of land to an amount greater, by one cent and 
 three miUs, than the creditor was entitled to^ will not vacate the levy ; for de 
 minimis lex non curat. Dwinel v. Soper, xxxii. 119. 
 
 23. A levy of land, to which the execution debtor, at the time of the levy, 
 had no title, gives to the creditor no rights in the land which the debtor may 
 subsequently acquire. Freeman v. Thayer, xxxiii, 76. 
 
 24. A debtor's life estate in land belonging to his wife, passes to the 
 creditor, by a levy of the fee. McKeen v. Gammon, xxxiii. 187. 
 
 25. If, under a wUl, a devisee take an estate in fee, subject to a life trust 
 for the benefit of another, his creditor, by a levy of his estate in remainder, 
 can take no enjoyment of the income, until the death of the devisee. Butter- 
 field V. Haskins, xxxiii. 392. 
 
 26. A levy of mortgaged land on execution against the mortgagee, who is 
 not in possession, and has never entered to foreclose, passes no title. Coomls 
 V. Warren, xxxiv. 89. Bandall v. Farnham, xxxvi. 86. McLaughlin 
 V. Shepherd, xxxii. 143. 
 
 27. A levy, " reserving and excepting such incumbrances and conveyan- 
 ces as have been made prior to the levy," is too indefinite and uncertain. 
 Thayer v. Mayo, xxxit. 139. 
 
EXECUTIONS. 261 
 
 28. A levy of land, appraised at an amount, exceeding the sum to be col- 
 lected by fifty-two cents, is void. Thayer v. Mayo, xxxiv. 139. 
 
 29. The levy of an execution against the husband, upon his life estate in 
 the land of his wife, was not defeated by the Act of 1844, unless the wife 
 prove, " that [the title did not in any way come to her from the husband 
 during coverture. Mdridge v. Preble, xxxiY. 148. 
 
 30. A levy of the undivided part of the interest, which the execution 
 debtor held in a tract of land jointly with others, is void, unless it specify 
 what the debtor's interest was. Rawson ^.Lowell, xxxiv. 201. 
 
 31. The right of re-entry for a breach of condition in a conveyance of 
 land, pertains only to the grantor and his legal representatives ; and it is not 
 included among the rights mentioned in K. S. of 1841, c. 94, § 1, and can- 
 not be taken on execution. Bangor v. Warren, xxxiv. 324. 
 
 32. No particular ceremony is required in seizing real estate. It is not 
 essential that an officer should enter upon the land during any stage of the 
 proceedings in a levy. Fitch v. Tyler, xxxiv. 463. 
 
 33. The R. S. of 1841, c. 94, § 11, applies when the debtor's apparent 
 or known title extends only to an undivided part of the estate. Howe v, 
 Wildes, xxxi-v. 566. 
 
 34. Where the record shows that the debtor's title covers the whole land 
 in fee, a levy of the whole wiU transfer whatever title he may have, though 
 it be but a life estate in an undivided part. Howe v. Wildes, xxxiT. 566. 
 
 35. A lev)', appraised at an amount, exceeding the sum to be collected, by 
 fourteen cents, is void. Glidden v. Chase, xxxv. 90. 
 
 36. It seems, that a levy is unsustainable, if the excess in value of the land 
 taken be more than the value of any coin, which, by statute, is a legal tender. 
 Glidden v. Chase, xxxv. 90. 
 
 37. The judgment of a Court having general jurisdiction of the subject 
 matter of the suit, and purporting to be recovered against an inhabitant of 
 the county where it is rendered, is a sufficient foundation for a levy, although 
 there may have been some error in the date of the writ, the service thereon 
 and the term of the Court, at which the action should have been entered. 
 Woodman v. Smith, xxxvii. 21. 
 
 38. An execution against a railroad corporation, may be levied upon the 
 property of a stockholder, to the amount of his stock, for debts contracted 
 during the time he was a stockholder. Chaffin v. Cummings, xxxvii. 76. 
 
 39. To the validity of a levy made on such an execution upon the property 
 of an individual, it must appear : — 
 
 1st. That he was a shareholder to the amount levied. And, it is not essen- 
 tial, that such fact be shown by the corporation records, or by the officer's re- 
 turn ; but it may be shown by parol. 
 
 2d. That the levying officer, forty-eight hours before the levy, gave him 
 notice of the amount of the debt and of an intention to make the levy. It is 
 not essential, however, that the levy be made at the end of the forty-eight 
 hours ; but, if made twenty-four hours after, it is sufficient. Neither will the 
 notice become ineffectual by an intermediate payment of a part of the debt. 
 
 3d. That there was no attachable property of the corporation. Of which 
 fact, the levying officer's return upon the execution, that he cannot find such 
 property, is conclusive between the parties. Chaffin v. Cummings, xxxvii. 
 
262 EXECUTIONS. 
 
 40. In a controversy, as to the validity of such a levy, the stockholder can- 
 not object, that the creditor had reserved and secured usurious interest in his 
 contract with the corporation. Ghaffin v. Gumminga, xxxvii. 76. 
 
 41. AU the proceedings in the levy of an execution have reference to the 
 time when the land was taken ; and interest on the debt of the judgment 
 creditor can only be computed to that time. Brown v. Lunt, xxxvii. 423. 
 
 42. A levy of the debt, including the interest on the execution to the time 
 of its completion, which was two days after the land was taken, is invalid. 
 Brown v. Lunt, xxxtii. 423. 
 
 43. A levy, made for one dollar more than the amount of the debt, costs, 
 interest, fees for executions, and costs of levy, is invalid. Wehster v. Bill, 
 XXXVIII. 78. 
 
 44. Where a judgment debtor exclusively owns a parcel of land, a levy by 
 his creditor upon an undivided portion of it, is invalid. Brown v. Clifford, 
 XXXVIII. 210. 
 
 45. But a levy upon a less proportionate undivided portion of a debtor's 
 land, than he owns, will divest his title to the part levied on. Brown v, 
 Clifford, XXXVIII. 210. Bawson v. GlarTc, xxxviii. 223. 
 
 46. The validity of a levy, as between the debtor and creditor, is not 
 impaired by the omission to have the incumbrance of a mortgage, known to 
 be existing, deducted" from the appraised value of the land. Brown v. 
 Clifford, XXXVIII. 210. 
 
 47. It is not essential that the appraisers' certificate or the officer's return 
 should state the amount of the debt, fees and charges, of the execution levied. 
 This may be made certain on inspection ; and unless more land is taken than 
 enough to satisfy the debt and costs, as taxed, the levy is valid. Bawson v. 
 Clark, XXXVIII. 223. 
 
 48. Where the share of an heir's estate was levied on by the administratrix, 
 a subsequent partition among aU the heirs, by the Judge of Probate, is not 
 a waiver of the levy. The heirs had no legal interest in the land levied on 
 that could be waived. Furlong v. Soule, xxxix. 122. 
 
 49. A creditor who blends his claims accruing before and after a voluntary 
 conveyance of his debtor, and levies on the estate conveyed, has only the 
 rights of a subsequent creditor. Quimhy v. Dill, XL. 528. 
 
 50. The interest acquired by a judgment creditor in his levy on land, is 
 not attachable, during the year allowed by law for its redemption ; nor will a 
 levy of it as his property, during that time, prove available, although it may 
 not be redeemed. Kidder v. Orcutt, XL. 589. 
 
 51. In a levy on the rents and profits of a life estate, under R. S. of 1841, 
 c. 94, § 14, the debtor is entitled to a specific statement of what has been 
 done, in order that he may see whether more of his property has been taken, 
 than an amount equal to the debt and costs. Bachelder v. Thompson, XLI. 
 539. 
 
 52. If the amount exceeds by only a few cents the exact sum required, the 
 levy will be void. So, also, when the return is so indefinite, that the amount 
 cannot be computed. Bachelder v. Thompson, xli. 539. 
 
 53. An attachment on mesne process, of a right and equity of redemption, 
 is sufiicient to sustain a levy upon the estate in fee, if, at the time of the 
 levy, the incumbrance created by the mortgage had been relieved. Jewett v. 
 Whitney, xliii. 242. 
 
EXECUTIONS. 263 
 
 54. A levy, reserving an estate less than a fee, of a part of the premises 
 set off, is void in relation to the particular tract, from vrhich the reservation 
 is made. Jewett v. Whitney, xliii. 242. 
 
 55. Where an execution was extended upon a lot of land, upon which was 
 a grist-mill and privilege, and the appraisers, after having described said 
 premises in their return, used the words "exclusive of the grist-mill now 
 standing on said premises," the levy cannot be upheld ; whether it was the 
 intention of the appraisers to exclude the grist-mill as personal estate, or to 
 reserve the miU and land under the same for the debtor, as an estate in fee 
 defeasible by the destruction of the mill. Jeivett v. Whitney, XLiii. 242. 
 
 See Attachment, 22. 
 
 (b) Appraisers, and the appraisement. 
 
 56. Where it appeared in a levy, that the names of the persons sworn as 
 appraisers, and the names signed as appraisers to the certificate of appraisal, 
 were identical; and where the officer's return named the same persons as ap- 
 praisers, with the exception of an initial letter, for a middle name in one, and 
 expressly referred to the certificate of the oath and the signatures of the 
 appraisers, as the same persons named in their return: — Held, that the 
 evidence of identity was sufficient. Rollins v. Rich, xxvii. 557. 
 
 57. In a levy, in which the levying officer was a deputy sheriff, one, who is 
 also a deputy of the same sheriff, is competent as an appraiser. Orover v. 
 Howard, xxxi. 546. 
 
 58. In levying an executionagainst two joint debtors upon real estate, held 
 by them in common, it is not necessary to appraise each one's share separately. 
 Dwinel v. Soper, xxxii. 119. 
 
 59. The requirements of R. S. of 1841, c. 94, § § 6 and 24, are complied 
 with, if the appraisers' certificate shows that they viewed the land, and ap- 
 praised and set it off, and if the officer's return refer to the appraisers' cer- 
 tificate, and state that they " appraised" the same "as therein appears" 
 Fitch V. Tyler, xxxiv. 463. 
 
 60. It is not requisite that the appraisers should be residents of the county 
 in which the land lies. Fitch v. Tyler, xxxiy. 463. Woodman v. Smith, 
 
 XXXTII. 21. 
 
 61. The appraisers' certificate need not state the amount of tlie debt, and 
 fees and charges of the execution levied. Bawson v. Clarh, xxxYiii. 223. 
 
 (c) Return of the officer. 
 
 62. Where the officer's return, after stating the necessary facts in regard to 
 a levy, also states that two of the appraisers signed their certificate "the 
 other declining to sign the same," it need not state the cause of the refusal of 
 such appraiser. McLellan v. Nelson, xxvii. 129. 
 
 63. In making sale of an interest in virtue of a bond, under Act of 1829 
 c. 431, It IS not necessary for the officer to return, that he had given a deed 
 to the vendee under his sale. It is sufficient, that it appears he had done so 
 by the production of the deed. WhUtier v. Vaughan, xxTii. 301. 
 
 64. Amendments of his return, in such case, may be made by an officer, 
 by leave of Court, no rights of third persons intervening, if, before they were 
 
264 EXECUTIONS. 
 
 made, the party, on looking at the return, could not have misunderstood, that 
 the proceedings had been substantially what the amended return shows them 
 to have been. Whittier v. Vaughan, xxvii. 301. 
 
 65. The title by levy, must be proved by the return of the officer. Jack- 
 son V. Woodman, xxix. 266. Lumbert v. Hill, xii. 475. 
 
 66. A return of satisfaction, made upon an execution, by an officer, will 
 not bar an action of debt on the judgment, if it be proved, that in fact, no 
 such satisfaction was made. Parlin v. Churchill, xxx. 187. Sutchinson v. 
 Oreenhush, xxx. 450. 
 
 67. The return of the officer, in a levy of real estate, that the appraisers 
 were discreet and disinterested men, is conclusive of that fact. Orover v. 
 Howard, xxxi. 546. 
 
 68. Where one of the joint execution debtors lived upon the land, owned 
 in common with the other, who lived within half a mile of it, and the officer, 
 in his return of the levy, certified, that at ten o'clock in the forenoon, he left 
 at the dwellinghouse of each, a written notice, stating that he had seized the 
 land, and requesting them to choose an appraiser, to assist in the appraise- 
 ment to be made at five o'clock in the afternoon of the same day, and that it 
 was a reasonable notice: — Held, that the Court could not decide that the 
 time was not sufficient. Dwinel v. Soper, xxxii. 119. 
 
 69. The officer's return that the appraisers were disinterested, is, in legal 
 effect, an affirmation that they were not within the sixth degree of relation- 
 ship to either of the parties ; and is conclusive between the parties. McEeen 
 V. Gammon, xxxiii. 187. 
 
 70. The officer's return that the appraisers were sworn, is sufficient, if 
 it refer to indorsements, made upon the execution by the magistrate and 
 by the appraisers, containing certificates that the requisite oath was taken. 
 Fitch V. Tyler, xxxiv. 463. 
 
 71. The " specified time" to be given by an officer to the debtor, in which 
 to appoint an appraiser, is to be mentioned in the notice, but need not be 
 stated in the return. Fitch v. Tyler, xxxiv. 463. 
 
 72. What is a " reasonable" time to be allowed to the debtor, in which to 
 choose an appraiser, is submitted to the judgment of the officer. Fitch v. 
 Tyler, xxxiT. 463. Howe v. Wildes, xxxiv. 566. 
 
 73. A return, that the debtor "refused" to appoint an appraiser, is a suf- 
 ficient substitute for an allegation that any notice was given to the debtor. 
 Fitch V. Tyler, xxxiv. 463. Howe v. Wildes, xxxiv. 566. 
 
 74. If the return does not state by whom one of the appraisers was ap- 
 pointed, the omission is fatal, unless supplied. And the person who was the 
 levying officer, on motion to the Court, may supply the omission, though not 
 in office. Fitch v. Tyler, xxxiv. 463. 
 
 75. Where the return upon an execution, issued upon a judgment recovered 
 against a husband and wife, for the debt of the wife before her marriage, 
 describes the real property levied on, as " the property of said" judgment 
 debtors, " being her right of inheritance ;" the levy embraces the husbands 
 freehold and the wife's reversion, and is a valid transfer of her land. Moore 
 V. Bichardson, xxxvil. 438. 
 
 76. A return by the officer, that the debtor was out of the State, and that 
 he had left a notice at his last and usual place of abode within the county, 
 his family still residing there, confers no authority upon the officer to choose 
 an appraiser for him. Wellington v. Fuller, xxxviii. 61. 
 
EXECUTIONS. 265 
 
 77. The officer's return need not state the amount of the debt and fees 
 and charges of the execution levied. Bawson v. Glarlc, xxxviii. 223. 
 
 78. The time of the completion of a levy of land, is shown in the return 
 of the officer by the date of his acts and doings in relation thereto. Balch v. 
 Pattee, xxxviil. 353. 
 
 79. And although he certifies that the levy was completed at a subsequent 
 time, such certificate is nugatory, when nothing was done or necessary to be 
 done by him to complete it. Balch v. Pattee, xxxviii. 353. 
 
 79. Although the return does not contain the words " after viewing the 
 same," yet, if it appears that the premises were shown to the appraisers, the 
 statute is satisfied. Huntress v. Tiney, xxxix. 237. 
 
 80. A statute title, by levy, must always be perfect ; that is, every thing 
 made necessary by the statute to pass the property, must appear by the return 
 of the officer and the record thereof, to have been done. Lumbert v. Hill, 
 XII. 475. 
 
 81. Where an execution is levied on the rents and profits of a life estate, 
 under R. S. of 1841, c. 94, § 14, the return should either state, in dollars and 
 cents, the precise value of the rents and profits set ofi', or else there should be 
 a reference to other papers that will make the amount certain. Bachelder v. 
 Thompson, xli. 539. 
 
 82. The statement in the return, that the rents and profits set ofi" for a 
 certain time will be sufficient, in the estimation of the appraisers, to satisfy 
 the execution and aU fees, is not sufficiently definite. Bachelder v. Thomp- 
 son, XLI. 539. 
 
 See Offices, 42. 
 
 (d) Beturning and recording the execution. 
 
 83. A levy of an execution on real estate, not recorded within three months, 
 will be invalid, except against the debtor and his heirs, and those having 
 actual knowledge thereof. Stevens v. Bachelder, xxviii. 218. Balch v. 
 Pattee, xxxviii. 353. 
 
 84. The record of the return of the officer, of the levy of an execution on 
 real estate, without his signature to the return, is not such a record as will 
 make the levy eff'ectual against subsequent purchasers. Stevens v. Bachelder, 
 XXVIII. 218. 
 
 85. The register of deeds is the proper officer to certify the copy of the 
 records of a levy on execution. Gray v. Garnsey, xxxii. 180. 
 
 86. When an execution and levy thereof have been returned and recorded, 
 there can be no other notice of the previous proceedings by which subsequent 
 attachmg creditors or purchasers can be affected. Lumbert v. Hill, xli. 475. 
 
 (e) Delivery of seizin. 
 
 87. In a levy of execution on real estate, a delivery of seizin to the creditor 
 alter the appraisement, is essential to the passing of the title. Jackson v' 
 Woodman, xxix. 266. 
 
 88 If the creditor refuse to receive seizin, the previous proceedings have 
 no eflect toward satisfying the execution. Jackson v. Woodman, xxix. 266. 
 89. The receiving of seizin, if ratified by the judgment creditor, is efi-ectual, 
 34 
 
266 EXECUTIONS. 
 
 although the person receiving it had no previous authorization. Cowan v. 
 Wheeler, xxxi. 439. 
 
 (f) Levies on equities of redemption, life estaies, and interests in virtue of 
 
 bonds. 
 
 90. In making sale of an interest by virtue of a bond, under Act of 1829, 
 c. 431, it is not necessary for the officer to return that he had given a deed to 
 the vendee. It is sufficient that it appears by the production of the deed. 
 Whittier v. Vaughan, xxvii. 301. 
 
 91. By an officer's sale of an equity of redemption, the purchaser takes a 
 right to the immediate possession of the land, except as against the mortgagee. 
 Ahhott V. Sturtevant, xxx. 40. 
 
 92. It is not indispensable that the officer's deed of an equity of redemp- 
 tion should be made on the day of the sale. If made so soon afterwards, 
 that it may be regarded as a part of the sale transaction, the deed, and the 
 purchaser's right under it, will have relation back and take effect from the 
 time of the sale. Abbott v. Sturtevant, xxx. 40. 
 
 93. Prior to the Act of 1847, c. 21, the interest which an obligee or his 
 assignee has in a conditional bond for the conveyance of real estate, was to 
 be made available to creditors by a sale on execution. Houston v. Jordan, 
 XXXV. 520. 
 
 94. If, after an attachment in a suit against an obligee or his assignee, the 
 defendant therein shall have obtained a conveyance pursuant to the bond, the 
 title by the Act of 1847 may be transferred by a levy, to which the previous 
 attachment shall impart its usual validity. Houston v. Jordan, xxxt. 520. 
 
 95. Such an attachment, however, can give no validity to a levy, if the 
 conveyance have been made, not to the execution debtor, but to some other 
 person. Houston v. Jordan, xxxv. 520. 
 
 96. Where an execution is levied on the rents and profits of a life estate, 
 under R. S. of 1841, c. 94, § 14, the debtor is entitled to a specific state- 
 ment of what has been done, in order that he may see whether more of his 
 property has been taken than an amount equal to the debt and c6sts. Bach- 
 elder V. Thompson, xli. 539. 
 
 (g) Redemption, after an~ extent or sale on execution. 
 
 97. The right to redeem real estate, levied on execution, is limited to one 
 year from the levy. Boothby v. Bangor Com. Bank, xxx. 361. 
 
 98. R. S. of 1841, c. 94, § 28, merely provides an additional mode of as- 
 certaining the amount ; which is by equity. And such process must have the 
 amount ascertained, and brought into Court, before the year for redemption 
 has expired. Boothby v. Bangor Com. Bank, xxx. 361. 
 
 99. The right which a mortgager has to redeem, against an execution sale 
 of his right of redemption, is limited to one year from the sale. Gushing v. 
 Thompson, xxxiv. 496. 
 
 100. Where the mortgager and his tenants have retained the possession, 
 without paying any rent to the purchaser, though it was demanded of them, 
 the mortgager, when redeeming, cannot require of the purchaser an account 
 for rents. Gushing v. Thompson, xxxit. 496. 
 
EXECUTORS AND ADMINISTRATOES. 267 
 
 101. If the purchaser, for his own benefit, obtained a policy of insurance 
 upon a building standing on the land, and within the year received the insur- 
 ance money, the building having been burnt: — Held, that in redeeming the 
 sale, the mortgager was not entitled to the insurance. Gushing v. Thompson, 
 XXXIV. 496 
 
 102. The receipt, by a levying creditor, of the amount of his claim, though 
 after the expiration of the year allowed for redemption, vacates the title 
 derived from the levy. Bandall v. Farnham, xxxyi. 86. 
 
 III. LEVIES ON PERSONAL PROPERTY. 
 
 103. Personal property having been duly advertised for sale on execution, 
 and a postponement for two days having been made by proclamation, without 
 the posting of advertisements, the officer would not be liable in trespass to 
 the debtor for selling the property at the postponed time, if the postponement, 
 both as to mode and time, was made at his request. Wilton M. Go. v. 
 Butler, xxxiv. 431. 
 
 104. An omission, by the officer, to affix his signature to the return of a 
 sale of property on execution, may be amended, on proof to the Court, that 
 the return was according to the truth. Wilton M. Go. v. Butler, xxxiv. 
 431. 
 
 rv. HOW, AND BY WHOM DISCHARGED, 
 
 105. An attorney at law has no authority, in virtue of his general employ- 
 ment, to discharge an execution, unless upon payment of its whole amount. 
 Jewett v. Wadleigh, xxxii. 110. 
 
 EXECUTORS AND ADMINISTRATORS. 
 
 I. APPOINTMENT, POWERS, DUTIES AND LIABILITIES. 
 II. SUITS BY AND AGAINST. 
 
 IIL EXECUTORS DE SON TORT, AND FOREIGN EXECUTORS AND 
 ADMINISTRATORS. 
 
 I. APPOINTMENT, POWERS, DUTIES AND LIABILITIES. 
 
 (a) Intebest in, and authority ovek, the estate, and sales thebeop. 
 
 (b) Repbesentation op insolvency, and peoceedings, 
 
 (c) Generally. 
 
 (a) Interest in, and authority over, the estate, and sales thereof. 
 1. Where an administrator de bonis non, with the will annexed, is appoint- 
 ed upon the death of an executor, who was also appointed by the wiU trustee 
 of a fund ansmg out of the estate of the testator, such administrator does not 
 
268 EXECUTORS AND ADMINISTRATORS. 
 
 2. A conveyance of land by an administrator, under a license, after the ' 
 time limited by law for the operation of the license, is void. Chadbourne v. 
 BacMiff, XXX. 354. Mason v. Sam, xxxvi. 573. 
 
 3. To such a conveyance, the limitation of five years, provided in c. 52 of 
 the Acts of 1836, does not apply. Chadbourne v. BacMiff, xxx. 354. 
 
 4. Where an estate is devised to executors eo nomine, in trust, the devise 
 is made to the official, not to the individual person ; and the whole trust vests 
 in those who accept the office and become executors of the wiU. Put. F. 
 School v. Fisher, xxx. 523. 
 
 5. "Where an estate is so devised, or where the executors, by the will, have 
 a power 'to sell, coupled with an interest in trust, a conveyance by survivors 
 or by those who alone accept the trust, is valid. Put. F. School v. Fisher, 
 xxx. 523. 
 
 6 By a devise to the executor, of the testator's property, real and personal, 
 in trust, for the purpose of creating a cash fund, he takes a fee in trust in 
 the real estate. But if he did not take the fee, he would stUl have an im- 
 plied power to execute the trust. Put. F. School y. Fisher, xxx. 523. 
 
 7. One died intestate, leaving children, of whom J. was one. J. died in- 
 testate, of adult age, never having been married, and never having received 
 his distributive share in his father's estate; — Seld, that share was payable 
 to J's administrator, and not to his brothers and sisters. Storer v. Blake, 
 XXXI. 289. 
 
 8. By the Act of 1789, an administrator of a mortgagee had authority to 
 assign the mortgage ; and it could be done by a quitclaim deed, if the intent 
 thereby to convey the title be apparent. Grooher v. Jewell, xxxi. 306. 
 
 9. A decree of the Probate Court, appointing an administrator, is conclu- 
 sive, unless appealed from. Clarh v. Pishon, xxxi. 503. 
 
 10. A person to whose order money, belonging to an estate, was paid be- 
 fore an administrator was appointed, is accountable, without previous de- 
 mand, to the administrator, although the money or the avails of it never 
 came to his actual use. Clarh v. Pishon, xxxi. 503. 
 
 11. The administrator of a widow, when a pension, under the Act of Con- 
 gress of June 19, 1842, is paid to him, receives it merely in trust for her. 
 ■Shirley v. Walker, xxxi. 541. 
 
 12. If the owner of a building, erected upon the land bf another by con- 
 sent, have conveyed it in fraud of creditors, the right of his administrator is 
 simply that of selling it. Bullen v. Arnold, xxxi. 583. 
 
 13. To make up the six years, necessary to give a right to betterments, the 
 occupation by the administratrix cannot be added to that of the intestate. 
 Bullen V. Arnold, xxxi. 583. 
 
 14. If an intestate have conveyed land, without any consideration, in trust, 
 for his own benefit, the administrator is not entitled to a re-conveyance. 
 Crocker v. Smith, xxxii. 244. 
 
 15. The law gives an administrator no title to the land of his intestate, 
 but merely a right to sell the same in a prescribed mode and for specified 
 purposes. Crocker v. Smith, xxxii. 244. 
 
 16. Administrators have authority to submit to referees any controverted 
 personal claims, afiecting the estates under their care. Kendall v. Bates, 
 XXXT. 357. 
 
 17. Under R. S., of 1841, c. 107, the executor or administrator of a de- 
 
EXECUTORS AND ADMINISTRATOKS. 269 
 
 ceased co-partner, is bound to include in his inventory the co-partnership 
 estate for distribution. Gooh v. Lewis, xxxvi. 340. 
 
 18 The prior right of administering upon a co-partnership estate be- 
 longs to the survivor, upon his giving bond according to the statute. Until 
 he have given such bond, he cannot dispose of any part of the company 
 estate. Gooh v. Lewis, xxxvi. 340. 
 
 19 If he decline to give such bond, the executor or administrator of the 
 deceased partner, on giving the prescribed bond, is to take the partnership 
 estate iiito his own possession for administration. Cook v. Lewis, xxxYl. 
 340. 
 
 20. In such case, a sale of partnership goods, by the survivor, is unauthor- 
 ized and void ; and notes given therefor are without consideration. Cook v. 
 Le-iois, XXXVI. 340. 
 
 21. Of such goods the administrator is entitled to the immediate posses- 
 sion; and the purchaser, therefore, is not chargeable as trustee in any suit 
 against the surviving partner. Cook v. Leiois, xxxvi. 340. 
 
 22. A bond, given by one in his capacity as administrator, to convey land 
 of his intestate by warranty deed, is unauthorized, and will not bind the 
 estate. Mason v. Sam, xxxvi. 573. 
 
 23. The provision of the will, that the personal estate should remain in 
 the hands of executors, only interposed a trustee in whom the legal estate 
 vested ; but did not affect the duration and magnitude of the estate. Stone 
 V. FoHh, XLi. 265. 
 
 See Will, 25, 30. 
 
 (b) Bepresentation of insolvency and proceedings. 
 
 24. Where a claim, not belonging to the contingent class, is disallowed by 
 commissioners of insolvency, and is thereupon prosecuted and recovered in a 
 suit at law, the creditor is not barred by any 'statute of limitation from having 
 it, at any time afterwards, added to tlae list of allowed claims. Greene v. 
 Dyer, xxxii. 460. 
 
 25. His right to have it so added does not depend upon any reservation of 
 funds, ordered by the Judge of Probate for contingent claims. Greene v. 
 l>yer, xxxii. 460. 
 
 26. Neither is that right impaired by a distribution of the surplus assets, 
 without any order from the Probate Court, among the heirs and legal repre- 
 sentatives of the deceased, the estate, though represented insolvent, having 
 proved to be solvent. Greene v. Dyer, xxxii. 460. 
 
 See Insolvent Estates. 
 
 (c) Generally. 
 
 27. The four years limitation mentioned in R. S. of 1841, c. 146, § 29, 
 applies only to suits brought, and not to proceedings in the Probate Court. 
 Greene v. Dyer, xxxii. 460. 
 
 28. The contingent claims, for which, by R. S. of 1841, c. 109, § 13, 
 funds are to be reserved by order of the Judge of Probate, are those con- 
 cerning which it is uncertain whether they wiU ever be converted into debts. 
 Greene v. Dyer, xxxii. 460. 
 
270 EXECUTORS AND ADMINISTRATORS. 
 
 29. Where the commissioners of insolvency disallow a claim, and a judg- 
 ment is afterwards obtained for the same, the administrator may be compelled 
 to add it to the list of debts. Greene v. Dyer, xxxil. 460. 
 
 30. Although it is proper for an administrator to charge himself for the 
 amount at which debts, due to the intestate, were appraised, such charge is 
 not conclusive of his liability for that amount. Weed v. Lermond, xxxiii. 
 492. 
 
 31. An administrator is not authorized to take such debts to his own use 
 at the appraisal, nor bound to account for them at the appraisal. His" 
 responsibility is that of reasonable diligence in the collection of them. Weed, 
 V. Lermond, xxxiii. 492. 
 
 32. One, having been appointed as executor and also as trustee, by a will, 
 and having given bond as executor, wiU be deemed to have declined the 
 appointment as trustee, unless he give bond in that capacity also. Williams 
 V. Gushing, xxxit. 370. Deering v. Adams, xxxvii. 264. 
 
 33. Where a testamentary .trustee of the residuum of the testator's estate 
 has declined to act in that capacity, another person may be appointed by the 
 Judge of Probate. And the person so appointed will have the rights of a 
 residuary trustee, in relation to suits upon probate bonds. Williams v. 
 Gushing, xxxiv. 370. Deering v. Adams, xxxvii. 264. 
 
 34. If there be a residuary trustee, the executor is to pay the residuary 
 fiind to him. Williams v. Gushing, xxxiv. 370. 
 
 35. If the executor, instead of paying such fund to the trustee, have paid 
 it, as executor, to one having no just claim to it, there is no jurisdiction in 
 the Judge of Probate to allow for such payment in settling the executor's 
 administration account. Williams v. Gushing, xxxiv. 370. 
 
 36. Such allowance will not preclude the trustee from receiving the amount 
 of the fund, in a suit upon the executor's bond. Williams v. Gushing, 
 XXXIT. 370. 
 
 37. An administrator, whose intestate owned land incumbered by a mort- 
 gage, but which land is not needed to pay debts of the intestate or charges of 
 administration, has no authority to purchase the mortgage ; and cannot make 
 it a charge upon the estate. Young v. Tarlell, xxxvii. 509. 
 
 38. An administrator who sells the real estate of his intestate, under a 
 license, for the payment of debts and incidental charges, and makes use of 
 the avails thereof in his business, is chargeable with lawful interest thereon 
 while thus using it. Paine v. Paulh, xxxix. 15. 
 
 39. By the Act of Feb. 11, 1789, § 3, all lands levied on by an adminis- 
 trator were held to the sole use and behoof of the widow and heirs of the 
 deceased ; and could only be distributed by the Judge of Probate as personal 
 estate. Furlong v. Soule, xxxix. 122. 
 
 40. Moneys, collected by an executor, for alleged claims of his testator 
 against a foreign government, through the medium of a treaty, are assets in 
 his hands, belonging to the estate. Thurston v. Lowder, XL. 197. 
 
EXECUTORS AND ADMINISTEATOES. 271 
 
 n. SUITS BY AND AGAINST. 
 
 (a) When maintainable. 
 
 (b) Pleadings, pbaotioe, evidence and costs. 
 
 (a) When maintainable. 
 
 41. An action, upon a probate bond, against an administrator, brought by 
 the heirs at law for their own benefit, in the name of the Judge, without an 
 allegation that special leave was granted, cannot be maintained, under R. S. of 
 1841, c. 113, without proof of a decree ascertaining the amount due to such 
 heirs. Groton v. Tallman, xxvii. 68. 
 
 42. But such action may be maintained, for the general benefit' of the estate, 
 in certain cases, if it be alleged and proved that it was " commenced by the 
 express authority of the Judge of Probate." Groton v. Tallman, xxyii. 68. 
 
 43. The Judge cannot maintain such suit, on his own motion ; but can 
 only authorize it where his consent is necessary. Groton v. Tallman, xxvil. 
 68. 
 
 44. After the lapse of a year, an action for a legacy may be maintained by 
 a residuary legatee, against the executor, before a final settlement, if it ap- 
 pear that there are assets in the hands of the executor, to which there are no 
 other and superior claims to their fuU amount. Smith v. Lambert, xxx. 137. 
 
 45. And it is not essential that the probate records should show such as- 
 sets ; though such proof would be conclusive upon the executor. After the 
 lapse of a year, there is a presumption that the debts have all been paid. 
 Smith V. Lambert, xxx. 137. 
 
 46. Any action which survives, against the personal representatives of one 
 party, must be considered as surviving in favor of the legal representatives of 
 the other party. Valentine v. Norton, xxx. 194. 
 
 _ 47. An action, for the misfeazance of a sheriff or his deputy, does not sur- 
 vive against or in favor of either party. Valentine v. Norton, xxx. 194. 
 
 48. A testator bequeathed to S. W. $1700, in trust, to be put at interest, 
 the interest to be paid annually to the plaintiff, and required that S. W. 
 should give " a special bond for the discharge of the trust." S. W. was ap- 
 pointed, and gave bond as executor, but gave no special bond as to the trust 
 fund. He settled all the estate except the $1700, the interest of which he 
 duly paid to the plaintifi". At his decease, the defendant was appointed ad- 
 ministrator de bonis non, and gave bond, and charged himself, in his probate 
 account, with $1700, received of the estate of S. W.:—Eeld, that the de- 
 fendant did not become trustee of the fund, and had no right to invest the 
 money at interest, and that the plaintifi" could not recover of him the annual 
 interest provided in the will. Knight v. Loomis, xxx. 204. 
 
 49. Where an administrator of a widow, (prior to the Act of March 22d, 
 1844,) had received pension money, under Act of Congress, June 19, 1842' 
 in trust for a feme covert, she and her husband may maintain an action'jointly 
 agamst him, to recover the same. Shirley v. Walker, xxxi. 541. 
 
 50. Administrators de bonis non cannot maintain a real action in that 
 capacity. Brown v. Stricldand, xxxii. 174. 
 
 51. To maintain an action, disallowed by the commissioners on an insolvent 
 estate, notice must be given of the appeal at the Probate office, after the 
 return ot the report of the commissioners, and the action must be commenced 
 within three months from such return. Pattee v. Lowe, xxxvi. 138. 
 
 52. To charge an executor, on a written contract, to pay a debt due from 
 
272 EXECTJTOKS AND ADMINISTRATOBS. 
 
 his testator, it must be founded upon a sufficient consideration ; when the 
 action will lie against him personally, although it was signed in his represen- 
 tative capacity. Walker v. Patterson, xxxvi. 273. 
 
 53. Where an executor referred a co-partnership matter in dispute, and the 
 balance of the indebtedness of the company beyond its assets was found by the 
 referee, one-third of which the executor agreed, in -writing, to pay to a cred- 
 itor of the company, but did not secure the estate from any further or other 
 liability for the partnership debts : — Held, that no action could be maintained 
 on the contract, for want of consideration. "Walker v. Patterson, xxxvi. 273. 
 
 54. After an estate has been represented insolvent, a creditor cannot main- 
 tain an action against the administrator, unless his claim has been filed before 
 the commissioners, though the estate should prove to be solvent. McNally 
 V. Kerswell, xxxvii. 550. 
 
 55. An administrator, whose intestate gave a negotiable promissory note 
 to defendant, is not chargeable as his trustee, though the note may have been 
 presented against the estate by the promisee. Commercial Bank v. Neally, 
 XXXIX. 402. 
 
 56. If, when service of the writ is made upon an administrator as trustee 
 of defendant, the latter was surety on sundry notes of the intestate, but had 
 paid nothing, it is no indebtment, and the trustee process is unavailing. Com- 
 mercial Bank V. Neally, xxxix. 402. 
 
 57. Even an attachment of defendant's property, on suits against him as 
 such surety, would not constitute a debt, either absolute or contingent. Com- 
 mercial Bank V. Neally, xxxix. 402. 
 
 58. Suits against executors or administrators must be commenced within 
 four years, from the time they gave bond and notice of their appointment, 
 except in certain cases specified in the statute. Pettingill v. Patterson, xxxix. 
 498. Thurston v. Lowder, xi. 197. 
 
 59. A creditor, having a claim against an estate which is not due until 
 the four years have expired, can have no remedy against an executor, unless 
 it has been filed in the Probate office within that period. Pettingill v. Patter- 
 son, xxxix. 498. 
 
 60. Hence, where an obligee in a bond, given by the testator, has recovered 
 judgment for its penalty and execution for such sum as was due within the 
 four years from the time he accepted the trust, scire facias will not lie after 
 the four years have elapsed, to obtain execution for subsequent installments. 
 Pettingill v. Patterson, xxxix. 498. 
 
 61. Upon the refusal of the promisor to fulfil an agreement in writing, for 
 a valuable consideration, to convey real estate, the administratrix of the 
 promisee may maintain either a bill in equity for specific performance, or an 
 action at common law, to recover damages for its breach. Godfrey v. Pwinel, 
 XL. 94. 
 
 62. Where an executor received moneys through claims against a foreign 
 government, within foui* years from his appointment, a part of which was 
 claimed by plaintiflf, and that it never was the property of the testator : — 
 Held, that an action against the executor therefor, commenced after four years 
 from his appointment, could not be maintained. Thurston v. Lowder, xi. 
 197. 
 
 63. An administrator of an insolvent estate is entitled to the aid of the 
 equity powers of the Court, to obtain property, belonging to the intestate, 
 which creditors may lawfully claim in satisfaction of their debts, when the 
 
EXECUTORS AND ADMINISTEATORS. 273 
 
 same is held in fraud; but his remedies at law must first be exhausted. 
 Fletcher v. Holmes, xi. 364. 
 
 64. By the Act of 1850, c. 159, an action commenced before the expiration 
 of a lien, and brought to enforce it, may be prosecuted to judgment and exe- 
 cution against an administrator or executor, notwithstanding the death and 
 insolvency of the debtor. Pratt v. Seavy, xli. 370. 
 
 65. An agent of another to sell real estate, must account to the adminis- 
 tratrix of his principal, on demand, for the proceeds of the sale ; otherwise, 
 he is liable in damages. Wheeler v. Haskins, xii. 432. 
 
 (b) Pleadings, practice, evidence and costs. 
 
 66. There were annuitants and residuary legatees under a will. One of 
 the legatees, being indebted to the estate, gave his note therefor to the execu- 
 tor ; and afterwards ti-ansferred all his interest in the estate to one of the an- 
 nuitants, who soon afterwards purchased in all the rights of the other annuitants 
 and legatees. In &,n action upon the note, by the administrator de bonis non, 
 for the use of such purchaser : — Held, that said pvirchases were no defence. 
 Wilkins V. Patten, xxx. 429. 
 
 67. In an action by an administrator, the general issue, or plea in bar, ad- 
 mits him to be administrator. If the defendant would deny that the plaintiff 
 is administrator, he must plead in abatement. Clarh v. Pishon, xxxi. 503. 
 
 68. In such action, the general issue may be rejected, if it purport to re- 
 serve to the defendant a right of denying that the plaintiff is administrator. 
 Clark V. Pishon, xxxi. 503. 
 
 69. Under the general issue, the defendant cannot introduce the probate 
 records, for the purpose of showing that there were such irregularities in the 
 probate proceedings as would vacate the plaintiff's appointment. Clark v. 
 Pishon, XXXI. 503. 
 
 70. Scire facias, and not debt, is the remedy for an administrator de honis 
 non, upon an unsatisfied judgment, recovered by the original administrator. 
 Paine v. Mclntire, xxxii. 131. 
 
 71. An inventory of real property, duly returned to the probate office, is 
 prima facie proof that no other land belonged to the estate. Reed t. Gilbert, 
 XXXII. 519. 
 
 72. Eights to a set-off in a suit, wherein an executor or administrator is a 
 party, are the same that would have existed, if all the parties interested had 
 continued in life. Adam^ v. Ware, xxxiii. 228. 
 
 73. Joint executors or administrators, representing the testator or the in- 
 testate, are one person in law. And an act by one of them, relating to the 
 goods of the estate, is the act of all. Shaw v. Berry, xxxv. 279. 
 
 74. An administrator is bound by the admissions which his intestate has 
 made. Weston v. Weston, xxxv. 360. 
 
 75. Proofs of waste and mal- administration are not competent to sustain 
 an action under either of the exceptions mentioned in R. S. of 1841, c. 109 
 § 28, in regard to estates represented insolvent. Pattee v. Lowe, xxxvi". 138* 
 
 76. By R S. of 1841, c. 113, § 16, whenever it shall appear, in any suit 
 against an admmistrator, that he has neglected or refused to account, upon 
 oath for such property of his intestate as he has received, after he has been 
 cited by the Judge of Probate for that purpose, execution shall be awarded 
 
 35 
 
274 EXECUTORS AND ADMINISTRATORS. 
 
 against him for the fuU value of whatever personal property of the deceased 
 has come to his hands, without any discount, abatement or allowance for 
 charges of administration or debts paid. Williams v. Esty, xxxvi. 243. 
 
 77,. Whenever such default has been committed by an administrator, a suit 
 is maintainable against his sureties upon the administration bond. Williams 
 v. Usty, xxxTi. 243. 
 
 78. And the amount of the inventory of the personal property is prima 
 facie evidence of the sum for which execution shall be awarded against him. 
 
 Williams v. Esty, xxxvi. 243. 
 
 79. If the sureties for sjich default are prosecuted in separate suits, execu- 
 tion will be issued for the full ampunt of the personal estate in each ; but one 
 only can be satisfied. Williams v. Esty, xxxvi. 243. 
 
 80. To charge an executor, on a written contract, to pay a debt due from 
 his testator, it must be founded upon a sufficient consideration ; when an ac- 
 tion will lie against him personally. Proof of the consideration must be furn- 
 ished by the party who would enforce it. Walker v. Patterson, xxxvi. 273. 
 
 81. The joint liability of partners is severed by their death; and a claim 
 against their estate cannot be prosecuted against their administrator, in one 
 action, although the same individual should administer on both estates. 
 McNally -v.' Eerswell, xxxvii. 550. 
 
 82. Where the creditor would enforce a lien claim on logs, by an attach- 
 ment under the provisions of c. 216 of the Acts of 1851, against the admin- 
 istrator of an estate represented insolvent, the nature of the claim must 
 appear in the writ. McNally v. Kerswell, xxxvii. 550. 
 
 83. As an answer to a plea of statute of limitations, an offer to prove that 
 the cause of action was fraudulently concealed, must appear, in the report of 
 it to the Court, to have embraced all the requirements of the statute in that 
 particular. The time when the fraudulent concealment was discovered must 
 not be left in doubt. " Thurston v. Lowder, xl. 197. 
 
 84. For a creditor's proportion of a sum of money, found due from an 
 executor on settlement of his account with the Judge of Probate, under the 
 decree of that Court, an action on the executor's bond is the remedy, and 
 not assumpsit. Waas v. Bucknam, xi. 289. 
 
 85. Where the administrator of an insolvent estate attempts, through equity, 
 to reach the avails of property belonging to the estate fraudulently conveyed, 
 it must appear : — 
 
 1st. That the suit is for the benefit of aU the creditors whose claims are 
 established : — 
 
 2d. That the creditors have obtained judgment, or that their claims have 
 been allowed by the commissioners of insolvency, and not objected to by the 
 administrator : — 
 
 3d. That the administrator has availed himself of the provision of law for 
 citing before the Probate Court the suspected parties : — 
 
 4th. That he has brought a suit at law for the recovery of the property so 
 conveyed: — and 
 
 5th. That he, or those whom he represents, has exhausted the remedies 
 at law against the parties for aiding or assisting in fraudulently concealing the 
 property of the estate. Fletcher v. Holmes, xe. 364. 
 
EXECXJTORS AND ADMINISTEATOBS. 275 
 
 m. EXECTJTORS DE SON TORT, AND FOREIGN EXECUTORS AND 
 ADMINISTRATORS. 
 
 86. Letters of administration, granted in another State, give no power of 
 administering property of the deceased in this State. Smith v. Guild, 
 XXXIV. 443. 
 
 87. The taking of property into possession, under a just claim of right, 
 ■will not charge upon a person any Kability as executor de son tort. Smith v. 
 Porter, xxxv. 287. 
 
 88. A purchase from an executor de son tort, knowing him to be such, will 
 not charge the purchaser as an executor de son tort. Smith v. Forter, xxxv. 
 287. 
 
 EXEMPTION OF PKOPEETY. 
 See Attachment, 2, 9, 12, 13. 
 
 EXPERTS. 
 See Evidence, 109 — 118. 
 
 EX POST FACTO LAWS. 
 See CoNSTiTTTxioNAL Lavt, 12 — 19. 
 
 EXTENT. 
 See Execution. 
 
 FALSE PRETENCES. 
 See Cheating by False Peetences. 
 
 FEES. 
 See Officee. CoNSTiximoNAL Law, 29. 
 
276 FELONY. — FENCE. 
 
 FELONY. 
 
 1. R. 8. of 1841, c. 167, § 4, providing that an accessory before the fact 
 "may be indicted and convicted of a substantive felony, whether the principal 
 felon shall or shall not have been convicted, or shall or shall not be amenable 
 to justice," does not abrogate the distinction between principal and accessory, 
 but clearly preserves it. State v. Bicker, xxix. 84. 
 
 2. A " substantive felony'' is that vs'hich depends on itself, and is not de- 
 pendent on another felony, which can only be established by the conviction of 
 the one who committed it. State v. Bicker, xxix. 84. 
 
 3. Whether such intended offence be a felony or misdemeanor, is not to be 
 ascertained by the common law classification of crimes, but by our statute 
 classification. State v. Smith, xxxii. 369. 
 
 4. Where death ensues by the act of one in the pursuit of an unlawful 
 design, without intent to kill, it is murder or manslaughter, as the intended 
 offence was felony or a misdemeanor. State v. Smith, xxxii. 369. Smith 
 V. State, XXXIII. 48. 
 
 5. Any crime, liable to be punished in the State prison, is a felony. It 
 belongs to the class of felonies, although by statute made punishable in the 
 alternative, either in State prison, or the County jail, or by fine. State v. 
 Smith, XXXII. 369. Smith v. State, xxxiii. 48. 
 
 6. The using of any means, with intent to destroy the child of which a 
 female is pregnant, and the destroying the child thereby, before its birth, un- 
 less done to preserve the life of the mother, constitute a felony. Smith v. 
 State, xxxiii. 48. 
 
 FEME COVERT. 
 See Makeied Woman. 
 
 FENCE. 
 
 1. A man's cattle are not lawfully upon another man's land, unless by con- 
 sent of its owner or some one having an interest in it, though unfenced, and 
 they pass there directly from the highway, upon which they were permitted to 
 go at large by vote of the town. Lord v. Wormwood, xxix. 282. 
 
 2. Although the owner of unfenced land, adjoining a highway, may not re- 
 cover damages for cattle passing from such highway, upon which they were 
 permitted to go by a vote of the town, stUl, he may remove them and guard 
 against their ingress. Lord v. Wormwood, xxix. 282. 
 
 3. The latter part of the provision of R. S. of 1841, c. 30, §6, applies to 
 those cases, where there had been a division of the fence between owners of 
 adjoining lands ; and, until a division takes place, there cannot be said to be 
 any neglect. Lord v. Wormwood, xxix. 2^2. Sturtevant y. Merrill, xxsii. 
 62. Wehher v. Glosson, xxxt. 26. 
 
FENCE. 277 
 
 4. If cattle, being thus wrongfully upon land, pass therefrom, to and upon 
 the plaintiff's adjoining unfenced lot, not bordering upon the highway, he may 
 maintain trespass therefor against their owner ; for he was under no obliga- 
 tion to fence against them. Lord v. Wormwood, xxix. 282. 
 
 4. By the common law, every man is bound, at his peril, to keep his cattle 
 on his own land. Lord v. Wormwood, xxix. 282. WeUer v. Closson, 
 XXXV. 26. 
 
 5. By the Act of 1842, c. 9, § 6, a railroad company is not bound to main- 
 tain fences on the lines of their road, except where the same passes through 
 " inclosed or improved land." Perkins v. Eastern R. B. Co., xxix. 307. 
 
 6. If an injury to another's cattle happen, through want of such fences upon 
 such lands, it is not legally imputable to the negligence of the company. 
 PerMns v. Eastern R. B. Co., xxix. 307. 
 
 7. If cattle escape from an adjoining close or highway, (upon which they 
 were not lawfully,) to the railroad and are injured, the company is not 
 liable. PerMns v. Eastern B. B. Co., xxix. 307. 
 
 8. If there has been no obligatory division fence between adjoining lots of 
 land, the owner of each lot is bound to keep his cattle from crossing the line, 
 or he will be liable in trespass. Sturtevant v. Merrill, xxxiii. 62. 
 
 9. And, though the owners of the lands may have maintained a line-fence, 
 by severally building such parts as were satisfactory to each other. Sturte- 
 vant V. Merrill, xxxiii. 62. 
 
 10. The plaintiff's wrongful removal of fence, built by the defendant, will 
 not constitute a license for defendant's cattle to cross the undivided line, after 
 there has been such a lapse of time as to give the defendant a reasonable op- 
 portunity of rebuilding. Sturtevant v. Merrill, xxxiii. 62. 
 
 11. From the maintenance of a partition fence, jointly, by the owmers of 
 adjoining lands, for however long a, period, there can arise no prescriptive 
 obligation upon either of them to maintain any separate and distinct part of 
 it. ' Wehler v. Closson, xxxv. 26. 
 
 12. Therefore, if, through a defect in such joint fence, sheep, rightfully up- 
 on one side of it, escape into the field upon the other side, and do damage, 
 they are liable to be impounded. Wehher v. Closson, xxxv. 26. 
 
 13. Railroad corporations, required by their charter to keep and maintain 
 legal and sufficient fences on the exterior lines of their road, for neglecting 
 that duty are liable to a forfeiture of a hundred dollars per month, by c. 41, 
 of Acts of 1853. Norris v. Androscoggin B: B. Co., xxxix. 273. 
 
 14. And they are also liable in an action at common law, to any person 
 suffering injury in his property thereby. Norris v. Androscoggin R. B. Co., 
 XXXIX. 273. 
 
 15. And said Act, being remedial and for the protection of property peculiar- 
 ly exposed by the introduction of locomotive engines, applies to corporations 
 existing before its passage. Norris v. Androscoggin B. B. Co., xxxix. 273. 
 
 16. Plaintiff's horse, by reason of a defective fence, well known to the com- 
 pany, escaped fi-om his pasture upon the track, and was injured by the engine : 
 Held, the raikoad company were responsible, notwithstanding the engineer 
 was in the exercise of due care, and that the fence was originally imperfectly 
 built by the plaintiff for the company. Norris v. And/roscogqin B. B Go , 
 XXXIX. 273. 
 
278 FENCE VIEWERS. — FEBEY. 
 
 FENCE VIEWERS. 
 
 1 . The adjudication of fence viewers, as to the sufficiency and value of a 
 fence built by one party, is invalid, unless previous notice of the time and 
 place of their meeting had been given to the other party. Harris v. Stur- 
 devant, xxix. 366. 
 
 2. Without proof of a legal adjudication by the fence viewers, no action 
 can be maintained under K. S. of 1841, c. 29, § 9, to recover double the 
 value of a partition fence assigned to the defendant, but for his neglect built 
 by the plaintiff. Harris v. Sturdevant, xxix. 366. 
 
 3. In relation to partition fences, the power of the fence viewers extends 
 only to the assignment of the respective portions of the dividing line, and 
 the fixing of the time within which to build the fence. Longley v. EUton, 
 xxxiv. 332. 
 
 4. An order, that one of the adjoining owners should build a fence upon 
 a portion of the line assigned to the other, and exonerating the latter from 
 building upon such portion, is unauthorized ; and neither obligates the former 
 to perform, nor relieves the latter from the duty to build the portion upon 
 that portion of the line. Longley v. Hilton, xxxit. 332. 
 
 5. Such an order, though incorporated into the original assignment, is 
 merely void, and cannot vitiate the assignment itself. Shepiet, C. J., dis- 
 senting. Longley v. HUton, xxxit. 332. 
 
 6. An assignment of partition fence, by fence viewers, must be recorded 
 in the town clerk's office of the town where the land is situated, or a neg- 
 lect by one of the co-terminous proprietors, to build the part assigned him, 
 will not render him liable to the other in double the expense of building. 
 Ellis V. Ellis, XXXIX. 526. 
 
 FERRY. 
 
 1. A ferry is a liberty to have a boat upon a river for the carriage of men 
 and horses for a reasonable toU. Its limits are high water mark upon either 
 shore. State v. Wilson, xiii. 9. 
 
 2. It necessarily requires such privileges as will make it effectual. Pas- 
 sengers may be received and landed at the margin of the water upon the 
 shore, at all times of tide, and in all states of the river. When the space 
 between high and low water marks is in part or wholly bare, passengers may 
 pass over the shore without hindrance, and without liability to the riparian 
 proprietor. State v. Wilson, xlii. 9. 
 
 3. An establishment of a ferry on the Penobscot river in 1798, by the 
 Court of Sessions, was neither an enlargement nor a restriction of the right 
 to use the shore of said river, including the right of mooring vessels thereon, 
 and of discharging and taking in their cargoes, under the proviso of the 
 Colonial Ordinance of 1641. State v.. Wilson, xiii. 9. 
 
FIREWARDS. -FIREWOOD. -FISHERIES. 2 79 
 
 FINES. 
 See JrsTicE op the Peace. 
 
 FIREWARDS. 
 
 Under R. S. of 1841, c. 33, § 11, in the absence of any firewards, if one 
 only of the selectmen is present at a fire, he is vested with the authority to 
 direct any building to be pulled down or demolished, as he may judge neces- 
 sary, to prevent the spreading of the fire. Frankfort v. County Gomrms- 
 sioners, XL. 389. 
 
 FIREWOOD. 
 
 In the business of buying or selling firewood, one class is denominated 
 hard wood and another soft wood. And the jury are to determine to which 
 class a particular species belongs. Darling v. Dodge, xxxTi. 370. 
 
 FISHERIES. 
 
 1. By special Act, of March 4th, 1826, " to regulate the alewive fishery in 
 Bristol," the fish committee chosen by the town are to decide and determine 
 whether the sluice-ways are good and convenient ; and so long as they act 
 within the sphere of their duty they are not trespassers. No one has the right 
 to oppose them in the performance of their duties ; and their decision is con- 
 clusive, unless they are guilty of corruption, or palpably mistake their duties. 
 Fossett V. Bearce, xxvii. 117. 
 
 2. The Act of Massachusetts, of March 6th, 1802, "to regulate the shad 
 and alewive fishery in the town of Warren," is in force, so far as to authorize 
 the choice of a fish committee with power to recover forfeitures under the 
 second section thereof. Spear v. Robinson, xxix. 531. 
 
 3. Under an article in a warrant, at a legal meeting in the town of Warren, 
 " to choose selectmen, assessors and all other ofiicers that the law requires, 
 or may be thought necessary," a fish committee may be legally chosen. 
 Spear v. Eolinson, xxix. 531. 
 
 4. The choice of one who was not a freeholder is merely void. Spear v. 
 Robinson, xxix. 531. 
 
 5. The Act of 1826, regulating the alewive fishery in Bristol, repealed aU 
 the Acts then in force on the same subject, so far as operative in that town. 
 Bearce v. Fossett, xxxiv. 575. 
 
280 FIXTtTRES. 
 
 6. Under that Act, the town was annually to choose a fish committee, whose 
 right and duty it should be to keep open, in the dams upon the stream, proper 
 and sufficient sluice-ways for the passage of alewives. Bearce v. Fossett, 
 XXXIV. 575. 
 
 7. Since that Act, no other persons than the fish committee can adjudicate 
 upon the sufficiency of any sluice-way, or open any sluice-way in another's 
 dam, or abatp any dam as a nuisance for the absence or insufficiency of a 
 sluice-way, in that town. Bearce v. Fossett, xxxiT. 575. 
 
 8. By the common law, the people have the right of fishing in the sea, 
 creeks or arms thereof, as a public piscary, and may not be restrained, unless 
 in such places, creeks or navigable rivers, where either the king or some par- 
 ticular subject hath acquired a propriety exclusive of that common liberty. 
 Moulton V. Libhey, xxxvii. 472. 
 
 9. The shores of the sea and navigable rivers, within the flux and reflux of 
 the tide, belong prima facie to the king, and may belong to a subject. But 
 the jus privatum, of the owner or proprietor, is charged with and subject to 
 the jus publicum, which belongs to the king's subjects. Moulton v. Lihley, 
 XXXVII. 472. 
 
 10. The grant from Charles I., to Ferdinando Georges, of the Province of 
 Maine, without the proviso, would not necessarily be construed as impairing 
 the common right of piscary. But if any doubt might arise upon this point, 
 there can be none when the saving clause is considered as a part of the in- 
 strument, the common right of fishing in the sea and creeks of the Province 
 being expressly saved. Moulton v. Libbey, xxxvii. 472. 
 
 11. The saving clause is not restricted to the taking of such fish as maybe 
 and usually are dried upon the shore ; but the words " and drying of their 
 fish and nets ashore" confer a right additional to their common law right. 
 Moulton V. Libbey, xxxvii. 472. 
 
 12. The common right of fishing is in subordination to the right of naviga- 
 tion ; and any wharves or buildings upon flats, consistent with the latter, toII 
 be allowed by the latter. Moulton v. Libbey, xxxvii. 472. 
 
 13. The general term " piscaria" includes all fisheries, regardless of their 
 distinctive character or the method of taking them. Moulton v. Libhey, 
 XXXVII. 472. 
 
 14. The Legislature have the right to regulate the common rights and priv- 
 ileges of fishing ; and R. S. of 1841, c. 61, is designed for the protection and 
 furtherance of the common right, and is valid. Moulton v. Libbey, xxxvii. 
 472. 
 
 FIXTURES. 
 
 1. If a mortgager of a mill, after making the mortgage, put into it a shingle 
 machine and apparatus attached to it, it becomes a part of the freehold and 
 passes to the mortgagee after foreclosure. Corliss v. McLagin, xxix. 115. 
 
 2. Things, personal in their nature, such as belts, looms, carding machines, 
 pickers, jacks, spoolers and dressers, suited and designed for a woolen facto- 
 ry, and placed therein by the owners, although they may be taken away with- 
 out detriment to the freehold, are fixtures, and, in a partition, ordered among 
 
FLATS. 281 
 
 tenants in common, may be divided as real estate. Parsons v. Copeland, 
 xxxYiii. 537. 
 
 3. By the common law, fixtures and permanent improvements of the free- 
 hold, made by a tenant for life, or years, descend to the heirs of the owner. 
 But where made by a tenant at will, or for a term certain, and for his own 
 use, by consent of the landlord, they remain the personal property of the 
 tenant, and, upon his decease, constitute a part of his estate. jDoak v. 
 Wiswell, XXXVIII. 569. • 
 
 4. A husband's interest in the real estate of his wife is acquired by opera- 
 tion of law; and no buildings erected by him upon the estate, by consent of 
 his wife, will thereby become personal property. The Acts of 1844, 1847, 
 1848 and 1852, do not conflict with the above principle. Doak v. Wiswell, 
 XXXVIII. 569. 
 
 5. A wooden cistern, standing on blocks in the cellar, and in use ; and 
 air-tight stoves, standing in the place where they are used for warming the 
 house, partake of the realty, and the title to them passes by a levy on the 
 house in which they are used. Bleihen v. Towle, xl. 310. 
 
 6. But such stoves not standing in the place where they are used, but 
 stowed away like other movable property, at the time of the levy, do not 
 pass under it. Bleihen v. Towle, xl. 310. 
 
 FLATS. 
 
 1. The ordinance of 1641 provided that the proprietor of land adjoining 
 on the sea or salt water should hold to low water, where the tide does not 
 ebb more than one hundred rods. Though that ordinance was vacated by 
 the abrogation of the Colonial charter, it has by long usage become the law 
 of the State. Winslow v. Patten, xxxiy. 25. Partridge v. Luce, xxxvi. 
 16. Clancey v. Houdlette, xxxix. 451. 
 
 2. The Colonial Ordinance of 1641 presents no rule for apportioning flats 
 to the owners of adjoining uplands. Treat v. Ghipman, xxxv. 34. 
 
 3. The decided cases have not entirely agreed in furnishing a rule for that 
 purpose ; but there has been found no serious difficulty in extending the 
 rule laid down in Emerson v. Taylor, 9 Greenl. 42, to the flats in the larger 
 rivers and coves of this State. Treat v. Ghipman, xxxv. 34. 
 
 4. It seems,^ that a title to flats may be acquired by an occupation of them 
 by one of the owners of the adjacent lands, if continued fifty years, adverse' 
 exclusive, open and notorious, although commenced regardless of any fixed 
 rule of apportionment. Treat v. Ghipman, xxxv. 34. 
 
 _ 5. Such an occupation, with the knowledge of the other o%vner, may fur- 
 nish a presumption, that the flats had been apportioned by such owners in 
 accordance with such occupation. Treat v. Ghipman, xxxt. 34. 
 
 6. Fences of stakes or twigs, erected for fish weirs upon flats covered by 
 water, though used only part of each year, may sufiiciently evidence an oc- 
 
 rTted"' S?/'"^;' °"""^''P "' '^^ ^''' "P"'^ ^^-^ ^-l' f^'ce" 1 
 erectea. ireat v. (Jhipman, xxxv. 34. 
 
 7. A petition for partition of land bounded on the sea, or bay of the sea, 
 
 36 
 
282 FORCIBLE ENTRY AND DETAINER. 
 
 is a petition for a partition of the flats as well as of the upland. Partridge v. 
 Luce, xxxTi. 16. 
 
 8. If, in such case, the commissioners have left the flats undivided, their 
 report will be re-committed, for the purpose of having the flats divided, un- 
 less it appear to the Court that they are incapable of division. Partridge 
 V. Luce, XXXTI. 16. 
 
 9. The owners of flats beyond one hundred rods, which are subject to the 
 - flux or reflux of the tide, are liable to be disseized by an exclusive and ad- 
 verse possession. Glancey v. Houdlette, xxxix. 451. 
 
 10. And such disseizin, continued for twenty years, will divest the owner 
 of his title. Glancey v. Houdlette, xxxix. 451. 
 
 1 1 . Where upland is conveyed by deed, and by verbal agreement the pos- 
 session of the flats adjoining is transmitted to the grantee, such possession 
 for twenty years will become a perfect title ; and if for less than twenty years, 
 a stranger to the title cannot intermeddle with the possession. Glancey v. 
 Houdlette, xxxix. 451. 
 
 12. Where upland, on the shore of a river, subject to the flux and reflux of 
 the tide, has been run out into lots, the flats appurtenant, when not otherwise 
 settled by the owners, must be divided, under the Colonial Ordinance of 1641, 
 according to the principle recognized in Emerson v. " Taylor, 9 Qreenl. 42. 
 Call V. Garroll, XL. 31. 
 
 13. Where such original lots are subdivided, without any stipulations as to 
 the flats, the division of the latter, as between vendor and vendee, must be 
 governed by the same rule ; but, in no event, to affect the flats of adjacent 
 proprietors. Gall v. Garroll, XL. 31. 
 
 14. The proprietor of lands adjoining flats, upon or about tide waters, is 
 not precluded from erecting wharves and piers on his own flats, thus prevent- 
 ing the passage of vessels over flats covered by such erections, provided he 
 did not thereby materially interrupt general navigation. State v. Wilson, 
 
 XLII. 9. 
 
 15. By the erection of such permanent structures as he may thus lawfully 
 place upon his own premises, he acquires no exclusive right to those portions 
 remaining open. The public have still, in common with him, the right to 
 use the open space, provided they do not interfere with his erections. Staie 
 V. Wilson, XLii. 9. 
 
 FLOWAGE. 
 
 See Mills, &c. 
 
 FORCIBLE ENTRY AND DETAINER. 
 
 l.'This process cannot be sustained, under c. 128, of R. S. of 1841, 
 unless the complaint allege that the relation of landlord and tenant had 
 subsisted between the parties ; or unless either the entry or detainer, or both, 
 was forcible. Woodman v. Ranger, xxx. 180. 
 
FOREIGN LAWS. 283 
 
 2. If the tenant held over, the thirty days notice to quit, upon which to 
 found a process of forcible entry, &c., cannot be given until the tenancy has 
 been fully terminated ; and it must be distinct from, and subsequent to, that 
 by which the tenancy is determined. Smith v. Howe, xxxi. 212. Button 
 V. Colby, xxxT. 505. 
 
 3. It is not necessary to state in the warrant, that the complaint was made 
 on oath. Lithgow v. Moody, xxxv. 214. 
 
 4. Under the statute giving the process of forcible entry and detainer of 
 " lands and tenements," a tenement includes, as one of its essential elements, 
 an interest in real estate. Field v. Higgins, xxxt. 339. 
 
 5. For the recovery of a building, standing upon the land of another, by 
 his consent, the process of forcible entry and detainer will not lie. Field v. 
 Higgins, xxxv. 339. 
 
 6. On an appeal by a respondent from a judgment on process of forcible 
 entry and detainer, the statute requires him to recognize to pay such costs as 
 may be adjudged against him, and such reasonable intervening rent as the 
 justice shall adjudge, in case his judgment shall not be reversed on the appeal. 
 Dennison v. Mason, xxxvi. 431. 
 
 7. If the recognizance require the appellant to prosecute his appeal with 
 effect ; or to pay all costs that may arise in the suit after the appeal ; or to 
 pay the intervening rent, it is void. Dennison v. Mason, xxxvi. 431. 
 
 8. Under c. 128, § § 1 and 2, of R. S. of 1841, a magistrate has no authori- 
 ty to issue a warrant, unless he receives the complaint on oath. Labaree v. 
 Broivn, xxxviii. 482. 
 
 9. "Where the judge of a police court issued a warrant, under this chapter, 
 upon a complaint directed to him, but sworn to before a justice of the peace 
 and of the quorum, of another county, his proceedings are void. Labaree v. 
 Brown, xxxviii. 482. 
 
 FORECLOSURE. 
 See MoETGAGE. 
 
 FOREIGN ATTACHMENT. 
 See Tetjsiee Peocess. 
 
 FOREIGN LAWS. 
 
 <3f,V.^/°!?'^*'* ""^^^ ^y ^ "'^^^^"^ °^ Massachusetts, with a citizen of this 
 
 ste^Jlitrntl'^rV'' ^^VT^ by ; discharge ^^1-- 
 solvent laws ot that State. Falmer v. Goodwin, xxxii. 535. 
 
284 FKAUD AND FRAITDULENT CONVEYANCES. 
 
 2. A discharge under the insolvency la,ws of Massachusetts, by a debtor 
 resident there, is no bar to a debt due from him to a person who had never 
 resided there, or to a person, who, at the time of becoming a creditor, was 
 not, and has not since been a resident there. Bancher v. Fisk, xxxiii. 316. 
 
 3. A contract, legally made in another State, may be enforced in this State, 
 although such a contract would have been illegal in this State. Torrey v. 
 Corliss, XXXIII. 333. 
 
 4. A statute is not to have a retroactive effect, unless it clearly express 
 that intention. Torrey v. Corliss, xxxiii. 333. 
 
 See Bankktjptct, 19. 
 
 EXECUTOE, &Ci 
 
 FOEFEITURE. 
 See Bond, 24, 25, 27, 28. Exectjtiok. Pekaltt. Taxes. 
 
 FORGERY. 
 
 See Evidence. 
 
 FRAUD AKD FRAUDULENT CONVEYANCES. 
 
 I. FRAUD IN GENERAL AND ACTIONS THEREFOR, 
 n. FRAUDULENT CONTRACTS. 
 III. FRAUDULENT CONVEYANCES, 
 rv. FRAUDULENT SALES OF PERSONAL PROPERTY. 
 
 I. FRAUD IN GENERAL AND ACTIONS THEREFOR. 
 
 1. To inake a statement of what was contained in a deed of conveyance, 
 and express an opinion of its effect, furnishes no proof that he knowingly 
 made such representations as would make him liable. Sbyt v. Bradley, xxvii. 
 242. 
 
 2. It is not necessary that the creditor should first have obtained judgment 
 against his debtor, in order to maintain an action on § 49 of c. 148, of R. S. 
 of 1841. Aihen v. Kilbourne, xxvii. 252. 
 
 3. It need not appear that the person who knowingly aids a debtor in the 
 fraudulent concealment or transfer of his property, should derive a benefit 
 therefrom to make him liable. Aihen v. Kilbourne, xxvii. 252. 
 
 4. The rules of law respecting fraudulent conveyances are applicable to 
 mortgages. Aiken v. Kilbourne, xxvii. 253. 
 
FRAUD AND FRAUDULENT CONVEYANCES. 285 
 
 5. The conduct of a subsequent purchaser or attaching creditor, who has 
 knowledge or notice of a prior conveyance, and afterwards attempts to acquire 
 a title to himself, is fraudulent. Spofford v. Weston, xxix. 140. McLaughlin 
 V. Shepherd, xxxii. 143. 
 
 6. Where the declarations of a subsequent purchaser indicate his disbelief 
 that any prior deed had been given by his grantor, although admitting that 
 such a claim existed by those who professed to hold under it, actual notice 
 cannot be presumed ; nor can his conduct, in taking a conveyance to himself, 
 be considered fraudulent. Spofford v. Weston, xxix. 140. 
 
 7. If, without the consent of the maker, one affix his name as subscribing 
 witness to a note which had been executed without attestation, it will vitiate 
 the note, unless done without an intention to defraud. Thornton v. Appleton, 
 XXIX. 298. 
 
 8. In a suit upon a contract, the plaintiff may be relieved from the statute 
 of limitations, by plea and proof, that the defendant fraudulently concealed 
 from him knowledge of the cause of action ; unless he had direct and ample 
 means, in the exercise of ordinary prudence, to detect the fraud. McKown 
 V. Whitmore, xxxi. 448. 
 
 9. In an action on the 49th § of c. 148 of R. S. of 1841, it must appear 
 that the plaintiff was a creditor at the time of the fraudulent concealment, 
 and of the commencement of the action, and also that he continued to be so 
 between those periods. A continuing conditional liability, however, is suf- 
 ficient. Thacher v. Jones, xxxi. 528. 
 
 10. When proposing to purchase land, of which some person, other than 
 the grantor, is in possession, it is the purchaser's duty to inquire into the^state 
 of the title. And upon such inquiry, the presumption is, that he ascertains 
 the truth. McLaughlin v. Shepherd, xxxii. 143. 
 
 11. Fraud cannot be purged by subsequent honesties. Law v. Pavson, 
 XXXII. 521. ^ 
 
 12. Fraud, in the procurement of a deed of land, can be established only 
 upon proof that the grantee or his agent performed some act, or made some 
 representation which was false or deceptive, knowing it to be so. Larrabee 
 V. Larrabee, xxxiv. 477. 
 
 _ 13. The remedy given by R. S. of 1841, c. 148, § 49, is aUowed to cred- 
 itors only. Craig v. Webber, xxxvi. 504. 
 
 14, During the pendency of an action of tort, sounding in damages, the 
 ^\3.mtiS s right to recover does not con'stitute him a creditor; but when he 
 recovers judgment in such suit, it is otherwise. Craig v. Webber, xxxTl. 
 
 15. It is fraud in a person to acquiesce in tEe use of his name by another, 
 without authority, to the injury of innocent parties; and the law wiU not 
 permit him to deny the authority. Forsyth v. Day, xii. 382. 
 
 See Equity, 120 — 123. 
 Evidence, 232 — 242. 
 
 11. FRAUDULENT CONTRACTS. 
 
 nf ^1^' /" ^^^ipi'^ent of the debtor's interest in a contract for the conveyance 
 of land, made and received for the purpose of defrauding the creditors o^he 
 
286 FRAUD AND FRAUDULENT CONVEYANCES. 
 
 assignor, is void against creditors, subsequent, as well as prior, to the assign- 
 ment. Whitmore v. Woodward, xxviii. 392. 
 
 17. A contract, obtained by fraudulent representations, cannot be sustain- 
 ed by the fraudulent party, to the injury of the party imposed upon. Pratt 
 V. Philbrook, xxxiii. 17. 
 
 18. To avoid a contract for misrepresentations, it must appear that a de- 
 ception was intended and practiced ; that it was successful, and operated a 
 damage to the party deceived. Pratt v. Philbrook, xxxiii. 1 7. 
 
 19. But Courts will not interfere in his behalf, if he had full means of de- 
 tecting the fraud, but neglected to do it. Pratt v. Philbrooh, xxxiii. 17. 
 
 20. Neither can such a contract be wholly rescinded, if, prior to the com- 
 pletion of the sale, the purchaser learned the facts and confii-med the bargain. 
 Pratt V. Philbrook, xxxiii. 17. Herrin v. Libbey, XXXTI. 350., 
 
 21. If a party would rescind a contract, obtained by fraudulent representa- 
 tions, he must restore whatever he received under it, within a reasonable time. 
 Tisdale v. Buckmore, xxxiii. 461. Herrin v. Libbey, xxxvi. 350. Ci(s/j- 
 ing V. Wyman, xxxviii. 589. Emerson v. McNamara, xxi. 565. 
 
 22. But the rescision is at the option of the person defrauded. Herrin v. 
 Libbey, xxxvi. 350. 
 
 23. A lease, obtained by fraudulent representations, will be deemed to be 
 affirmed, if, after having discovered the fraud, he continues to occupy the land ; 
 and his only right is to recover the damage occasioned by the fraud. Herrin 
 V. Libbey, xxxvi. 350. 
 
 24. Where the plaintiflF sold property to defendants, for an unnegotiable 
 note against third persons, negotiated under fraudulent representations, the 
 party is liable on an implied guaranty. Gushing v. Wyman, xxxviii. 589. 
 
 See Evidence, 232 — 242. 
 
 III. FRAUDULENT CONVEYANCES. 
 
 25. "Where a fraudulent conveyance is made with the intent to defraud 
 creditors, an action on the case to recover damages for that cause, by one or 
 more of the creditors, cannot be maintained against the parties to such con- 
 veyance. Moody V. Burton, xxtii. 427. 
 
 26. R. S. of 1841, c. 161, § 2^ imposing a penalty upon parties to a 
 fraudulent conveyance, has not rendered such a conveyance void, as between 
 parties. Ellis v. Higgins, xxxii. 34. 
 
 27. A deed of land for a valuable consideration, intended to be absolute, 
 made and received with intent to hinder and delay creditors, is not void as to 
 subsequent creditors, unless some secret trust was reserved for the benefit of 
 the grantor. Bangor v. Warren, xxxiv. 324. 
 
 28. A sale of property by a debtor is not necessarily to be held fraudulent 
 and void as to creditors, although a contract for his own future support be a 
 part consideration of the sale. Hafgood v. Fisher, xxxiv. 407. 
 
 29. Such a sale will be sustained, if the vendor retained other property 
 sufficient for the payment of his debts. Hapgood v. Fisher, xxxiv. 407. 
 
 30. A. took from B. a deed, (which was duly recorded,) to secure a debt, 
 but neither surrendered nor discharged any security. In extending a levy 
 upon the same premises by the creditors of B., A. acted as an appraiser for 
 
FRAUD AND FRAUDULENT CONVEYANCES. 287 
 
 the creditors ; and subsequently levied an execution in his own favor upon 
 the same premises; — Held, the conveyance was void. Wellington y. Ful- 
 ler, XXXTIII. 61. 
 
 31. A conveyance, either by deed or mortgage, made by the grantor with 
 intent to defraud his creditors, but without that knowledge on the part of the 
 grantee, is valid. Davis v. Tihbets, xxxix. 279. McLarren v. Thompson, 
 XL. 284. 
 
 32. And, although the grantee conveys to a third person, and the considera- 
 tion is paid in fact by the original fraudulent grantor, the legal title passes. 
 Davis V. Tibhets, xxxix. 279. 
 
 33. A purchaser of land, for a full consideration, of one who has the record- 
 ed title, without knowledge of its being fraudulent, will be protected in his 
 title against the creditors of the fraudulent grantor. Ershine v. Decker, 
 XXXIX. 467. 
 
 34. A conveyance in trust, either secret or expressed, of real estate, made 
 or procured to be made by one deeply insolvent, for the purpose of defrauding 
 creditors, is void both as to existing and subsequent creditors. Smith v. 
 Parker, XLi. 452. 
 
 35. A. mortgaged real estate to B.'s assignor, which mortgage was fore- 
 closed by B., with the understanding that A. might redeem after the foreclos- 
 ure. A. then, with the design of defrauding his creditors, procured B. to 
 convey to C, in trust for A.'s wife and children, and, in certain contingencies, 
 for his own benefit : — Held, that the transaction was void as to creditors. 
 Smith V. Parker, xli. 452. 
 
 36. Parties to a contract, made in fraud of creditors, may subsequently 
 rescind such contract before the rights of creditors or purchasers have inter- 
 vened, and where not afiected thereby. Matthews v. Buck, xliii. 265. 
 
 37. Where such contract is voluntarily rescinded, no disability will attach, 
 by reason of any previous fraud, to any subsequent arrangement in regard to 
 the same property with other persons, or between themselves when third 
 parties have acquired no rights. Matthews v. Buck, Xiiii. 265. 
 
 38. A transfer of real and personal property, absolute in terms, in consid- 
 eration of a preexisting debt, and for security of other notes of the grantor, 
 upon which the grantee was liable as surety, and for other debts of the 
 grantor which the grantee promised to pay, may be valid if not designed to 
 defraud or delay creditors by both parties ; and it is not within the statute of 
 frauds. Stevens v. Hinckley, xxiii. 440. 
 
 See Evidence, 232 — 242. 
 Feattd, &c., 4. 
 
 rv. PEAUDULENT SALES OF PERSONAL PROPERTY. 
 
 39. If personal property has been conveyed for the purpose of deterring 
 creditors of the vendor from attaching it, and concurred in by the vendee 
 such conveyance is a fraud, the remedy for which may be sought in equity' 
 Hartshorn v. Eames, xxxi. 93. 
 
 40. Fraud practiced by the vendee of a chattel, whereby he obtained the 
 sale and delivery of it to himself, will not authorize the vendor to retake it 
 from one who had subsequently purchased it for value, and without knowleee 
 of the fraud. Ditson v. Randall, xxxiii. 202. 
 
 41. A sale of goods may be valid between the vendor and vendee, though 
 
288 FEATJDS, STATUTE OF. 
 
 made with a design by both of them to defraud the creditors of the vendor. 
 Thompson v. Moore, xxxti. 47. 
 
 42. In a suit by the vendee, for the value of the goods, against a third 
 person who had appropriated them to his own use, the plaintiff's fraudulent 
 design in the purchase is no defence. Thompson v. Moore, xxxvi. 47. 
 
 43. Upon the party alleging fraud is the burden of proving it. Bartlett v. 
 Blake, xxxTii. 124. 
 
 44. A sale of personal property in exchange for that which is stolen is not 
 'ipso facto void, but is voidable at the option of the vendor, as between him 
 and the fraudulent vendee, and those claiming under him with notice. Titcomb 
 V. Wood, xxxTiii. 561. 
 
 45. When such fraudulent vendee has transferred the property to a lonafde 
 purchaser for a lawful consideration, the vendor cannot reclaim it, or its value, 
 from such innocent purchaser. Titcomb v. Wood, xxxyiii. 561. 
 
 46. When the consideration of such subsequent sale was in part for a pre- 
 existing debt, and in part for the value of property which had been previously 
 stolen by the fraudvdent vendor, it cannot be impeached. Titcomb v. Wood, 
 XXXTIII. 561. 
 
 47. Where personal property is mortgaged to secure a debt, the intention 
 of the mortgager to delay creditors, as well as to secure this debt, will not 
 vitiate the mortgage, unless the mortgagee is connusant of, and participant in 
 the design. McLarren v. Thompson, xi. 284. 
 
 . 48. A vendor, who has been induced to part with his property by the fraud 
 of another, may rescind the contract and reclaim his property, if, within a 
 reasonable time, he tenders what he received in payment therefor, unless pay- 
 ment was made by the note of the vendee. Emerson v. McNamara, xli. 
 565. 
 
 49. Such tender must be made before action brought. Emerson v. 
 McNamara, xli. 565. 
 
 See Etidence, 232 — 242. 
 
 FRAUDS, STATUTE OF. 
 
 I. TO ANSWER FOR THE DEBT, «5C., OF ANOTHER. 
 
 II. FOR THE SALE OF LANDS, &o. 
 
 III. FOR THE SALE OF GOODS, &c. 
 
 IV. UPON AN AGREEMENT, NOT TO BE PERFORMED WITHIN A 
 
 YEAR. 
 
 I. TO ANSWER FOR THE DEBT, &o., OF ANOTHER. 
 
 1. To support an action upon a written agreement to pay the debt of 
 another, a consideration must be proved. Cutler v. Everett, xxxiii. 201. 
 
 2. No inference of a consideration is to be drawn from an agreement, on a 
 separate paper, to be responsible for the payment of a note, of the same 
 date, described as having been given by a third person. Cutler v. Everett, 
 xxxiii. 201. 
 
FRAUDS, STATUTE OF. 289 
 
 S The mother of defendants was occupying plaintiff's house, at an agreed 
 annual rent, which defendants, by parol, agreed to pay, so long as she should 
 occupy it:— Held, that it was collateral and void. Moses v. Norton, xxxvi. 
 113. . 
 
 4. The promise to answer for the debt or default of another must be in 
 writing ; but when a person originally undertakes to pay for services perform- 
 ed for, or goods furnished to, another, the promise need not be in writing. 
 Sanborn v. Merrill, xli. 467. 
 
 5. A. sold to B. certain goods, for which B. promised to pay a bill due 
 from A. to C. Afterwards C. presented his bill to B., who said it was 
 good, that he had agreed with A. to pay it, and that he would pay it soon : — 
 Held, that the promise was not within the statute of frauds. Maxwell v. 
 Saynes, xli. 559. 
 
 See AsstTMPSiT, 4. 
 
 II. FOB, THE SALE OF LANDS, &o. 
 
 6. A contract, divesting a mortgagee of land, of the right of possession, 
 before breach' of condition, must be in writing. Norton v. Webh, xxxv. 218. 
 
 7. It is sufficient, however, if it be expressed in the mortgage, that the 
 mortgager should maintain the mortgagee at a house upon the land. Norton 
 V. Webb, XXXV. 218. 
 
 8. No permanent interest in real estate can be acquired by parol agreement. 
 Pitman v. Poor, xxxviii. 237. 
 
 9. The right to abut and erect a dam upon the land of another for a per- 
 manent purpose must be granted by writing. Moulton v. Faught, xii. 298. 
 
 III. FOE, THE SALE OF GOODS, &c. 
 
 9. A contract to furnish an article to be manufactured or prepared in a 
 prescribed manner is not affected by the statute of frauds. Abbott v. 
 Gilchrist, xxxviii. 260. 
 
 10. Such as an agreement, to procure and deliver at a time and place fixed 
 a vessel frame, to be hewn and prepared according to certain moulds. Abbott 
 V. Gilchrist, xxxviii. 260. 
 
 11. Defendant verbally agreed for a cargo of coal of a certain kind, at a 
 fixed price per ton, the plaintiffs to procure a vessel for its transportation. 
 But the coal was not received on account of the vessel's having been wreck- 
 ed : — Held, in a suit for the price, that, under the statute of frauds, there 
 must be an acceptance as well as a delivery. Maxwell v. Brown, xxxix. 98. 
 
 12.^ A. agreed to pay B. a given sum for a quantity of bank bills, which 
 were in the hands of C, subjett to the order of D. — B. procured and deliv- 
 ered to A. the order of D. on C. for the bills, and A. received the order, but 
 never presented it, nor received the bills: — BeM, that the transaction was 
 only a contract for sale, and, not having been in writing, was void. Gooch v. 
 Holmes, xli. 523. 
 
 13. A contract for the delivery, and not for the manufacture and delivery, of 
 blocks which may have been manufactured at the time, is within the statute 
 of frauds. Fichett v. Swift, xli. 65. 
 
 37 
 
290 GEORGES CANAL CO. — GOVERNOR AND COUNCIL. 
 
 rv. "[JPON AN AGEEEMENT, NOT TO BE PERFORMED WITHIN A 
 YEAR. 
 
 14. A contract to employ a laborer for three years, at specified wages per 
 day, is within the statute of frauds, unless the contract be in writing. Tuttle 
 V. Swett, XXXI. 555. 
 
 See Aebitbatiok, 34. 
 
 FUNDS FOR PIOUS AND CHARITABLE PURPOSES. 
 See Will. 
 
 GEORGES CANAL COMPANY. 
 
 1. Chapter 564, Special Laws of 1839, provides, "that the property and 
 afiairs of" the Georges Canal Company " shall be managed by a board of 
 directors," and the " treasurer is authorized to receive the assessments due 
 from stockholders." Brown v. Weymouth, xxxyi. 414. 
 
 2. The treasurer has no authority to pay the debts of the company without 
 the order of the directors, or to set-off the debts due from, by those due to, 
 the company. Brown v. Weymouth, xxxvi. 414. 
 
 3. A note given by a debtor to a creditor of the company, by an agreement 
 with the treasurer to cancel the indebtment of the one by the credit of 
 the other, (the act having been done without the authority or ratification 
 of the directors,) is without legal consideration. Brown v. Weymouth, xxxTl. 
 414. 
 
 GIFT. 
 See Donatio intee titos. 
 
 GOVERNOR AND COUNCIL. 
 
 1 . The duty of opening and comparing votes for certain officers is imposed 
 by law upon the Governor and Council, eo nomine. Dennett, pet'r, xxxil. 
 508. 
 
 2. The performance of a duty, so imposed, is not an act of the individuals 
 who may hold the offices of Governor and Council, but is an official act of the 
 Executive department. Dennett, pet'r, xxxii. 508. 
 
GRAND JUEY. — GRANTS. 291 
 
 3. Nor is such performance any the less an official act of that department, 
 though the Legislature might have devolved it upon any other class of per- 
 sons, instead of the Governor and Council. Dennett, pet'r, xxxii. 508. 
 
 4. For a correct performance of such official acts, the Governor and Council 
 are not responsible to the judicial department ; and the latter has no authority, 
 by mandamus, to control the official doings of the former. Dennett, pet'r, 
 XXXII. 508. 
 
 5. The Executive has no power to give a practical interpretation to laws, 
 in conflict with legal opinions properly given by the Judiciary. Davis, ex 
 parte, xli. 38. 
 
 GRAND JURY. 
 
 1. Grand jurors are drawn, summoned and returned by the mandate of the 
 statute, and not by order of the Court. State v. Symonds, xxxvi. 128. 
 
 2. In case of the deficiency in the number of grand jurors, the Court has 
 no such authority, as in case of traverse jurors, to cause them to be returned 
 de talibus circumstantihus, or in any other manner. State v. Symonds, xxxvi. 
 128. 
 
 3. And persons added to the grand jury, by virtue of a venire facias, is- 
 sued by order of Court, in term time, are not legally members of such jury. 
 State V. Symonds, xxxvi. 128. 
 
 4. Persons selected as grand jurors, by ^vrits of venire facias, without 
 seal, have no authority to act in that capacity, although empaneled and sworn 
 in Court without objection. State v. Lightbody, xxxviii. 200. 
 
 GRANTS. 
 
 1. Where the proprietors of the Kennebec Purchase, in their grants, bound- 
 ed their grantees at high water, their subsequent vote to extend such grants to 
 low water, did not enlarge their original grant. Clancey v. Eoudlette, xxxix. 
 451. 
 
 2. The grant of James I., of England, of all the territory of New England, 
 to the Council of Plymouth, also included all the soils, grounds, creeks, seas,' 
 rivers, islands, waters, and all and singular the commodities and jurisdictions, 
 both within the said tract of land lying upon the main, as also within the said 
 islands and seas adjoining. Clancey v. Houdlette, xxxix. 451. 
 
 3. No surrender of the subject of that grant, or any part thereof, was after- 
 wards made to the sovereign authority. Clancey v. Houdlette, xxxix. 451. 
 
292 GRANTS BY THE SOVEREIGN POWER. — GUARANTY. 
 
 GRANTS BY THE SOVEREIGN POWER. 
 
 1 . The title to lands granted by the sovereign power, upon a condition to 
 be subsequently performed within a limited time, will remain valid, until such 
 grantor, by Legislative Act, shall avail itself of a forfeiture. Little v, Wat. 
 son, XXXII. 214. 
 
 2. The time for performing such condition, prescribed in a grant made 
 by Massachusetts, prior to the separation of that State from Maine, of lands 
 in this State, may yet be extended by the Legislature of that Commonwealth, 
 notwithstanding the separation. Little v. Watson, xxxii. 214. 
 
 3. The State, by virtue of its sovereignty or right of eminent domain, may 
 abridge, control or destroy a public easement in a stream within its limits ; 
 but, until it does so by positive legislation, all persons may lawfully enjoy such 
 easement in common with the State. Aliter, in regard to public lands. Treat 
 V. Lord, XLii. 552. 
 
 4. A conveyance by the State of all its right, title and interest, in and to 
 the lands over which a navigable stream flows, does not authorize the grantee, 
 or those claiming under him, to use exclusively or to destroy the public ease- 
 ment in said stream. Treat v. Lord, xlii. 552. 
 
 See Lands Resekted, &c. 
 
 GUARANTY. 
 
 1. An agreement, containing a guaranty that there is a certain quantity of 
 timber upon a tract of land, does not necessarily authorize the inference that 
 the grantor knew the fact to be, as the guaranty stipulates, that it shall be for 
 the foundation upon which business is to be transacted. Hammatt v. Emer- 
 son, xxvii. 308. 
 
 2. Where one transfers a note, and, at the same time, guarantees its pay- 
 ment, the consideration of the transfer is sufficient consideration for the guar- 
 anty. OilligJian v. Bdardman, xxix. 79. , 
 
 3. A guaranty to pay a note after the grantee has obtained execution, if it 
 cannot be collected of the maker, is valid, although the execution be obtained 
 in the name of an indorsee of the guarantee. Gillighan v. JBoardman, xxix. 
 79. 
 
 4. In such case, the grantor would not be discharged by want of notice, 
 (before suit against him,) that the note could not be collected of the maker, 
 or by any other laches of the guarantee, unless such want of notice or such 
 laches, in case of his liability, would be the occasion to him of some loss or 
 injury. Gillighan v. Boardman, xxix. 79. 
 
 5. Where one owed the plaintiff upon a written contract, and a guaranty, 
 that he should perform, was indorsed on it by the defendant, the law presumes 
 the plaintiff to have been the party to whom the guaranty was made, though 
 not named in it. Jenness v. True, xxx. 438. 
 
 6. One who purchases an unindorsed negotiable note, and afterwards writes 
 his name with the word " holden" upon the back of it, and sells it for value, 
 
GUARDIAN AND WARD. 293 
 
 may be holden as guarantor to whomsoever lie sells the note ; but to no other 
 person. Irish v. Gutter, xxxi. 536. 
 See BiLis, &c., 9. 
 
 GUAEDIAN AND WARD. 
 
 1. If a guardian, in the settlement of his account, omit to charge himself 
 with what he was required by law to account for, that settlement will not pro- 
 tect him from liability in his next settlement. Starrett v. Jameson, xxrx. 504. 
 
 2. A guardian is accountable for interest moneys due on notes 'to his ward, 
 whether he collect such moneys, or whether they be lost by his neglect. Star- 
 reU V. Jameson, xxix. 504. 
 
 8. A guardian is not entitled to any compensation for services, if he neglect 
 to settle a guardianship account once In every three years, unless prevented 
 by sickness or unavoidable accident, although he was never cited to make 
 such settlement. Starrett v. Jameson, xxix. 504. 
 
 4. Of a child, having no father or mother, the guardian is entitled to the 
 custody, as against a relative, to whom its father, a few days before his death, 
 and in view of that event, had made a verbal gift of the child, " to take care 
 of, have and keep, as his own child." Coltman v. Hall, xxxi. 196. 
 
 5. A guardianship account may be settled by the Judge of Probate, after 
 the minority of the ward has expired. Pierce v. Irish, xxxi. 254. 
 
 6. In a guardianship account, the guardian's negotiable note, given to the 
 ward for a specified sum, is viewed, not as a decree that such sum is money 
 still due to the ward, in the hands of the guardian, but as payment to the 
 ward. Pierce v. Irish, xxxi. 254. 
 
 7. Such a charge may be allowed when the Judge of Probate is satisfied it 
 was the intention of the ward' to receive the note as payment. Pierce v. Irish, 
 XXXI. 254. 
 
 8. Where a ward, after having arrived at full age, has examined the guar- 
 dianship account, and certified thereon its correctness, and his assent to its 
 allowance, the Judge of Probate may allow the account without notice to the 
 ward. Pierce v. Irish, xxxi. 254. 
 
 9. A neglect, for three years, to settle a guardianship account, (except in 
 certain cases,) is a breach of the bond. But if the ward examine the final 
 account, and discharge the balance, by taking a negotiable note for its amount, 
 and the account be accordingly settled in the Probate Court, the damages for 
 the breach of the bond wiU be considered as included in the settlement, or 
 waived. Pierce v. Irish, xxxi. 254. 
 
 *i, ^1' ^ S'**^<^i^'»ship, for the cause of insanity, cannot be established over 
 the husband, upon the application of his wife. Eoward, pet'r, xxxi. 552. 
 
 _ 11. The statute has not fixed the highest rate of compensation for the ser- 
 vices of a guardian ; and it may be much beyond the amount of commissions. 
 £jmerson, appellant, xxxii. 159. 
 
 rn!,!; ^^^.^PP^iJit^ent of a guardian ad litem is at the- discretion of the 
 »^ourt. Kimg v. Uolxnson, xxxiii. 114. 
 
294 GUARDIAN AND -WARD. 
 
 13. The plaintiff is not bound to ascertain the mental capacity of a defend- 
 ant and bring it before the Court, in order that a guardian ad litem may be 
 appointed. King v. Robinson, xxxiii. 114. 
 
 14. A defendant, who becomes non compos mentis, if of full age, must ap- 
 pear by attorney and not by guardian. King v. Eohinson, xxxill. 114. 
 
 15. The appointment of an administrator to be guardian of minor children 
 interested in the estate is merely void. Sawyer v. Knowles, xxxiii. 208. 
 
 16. Nor would such an appointment furnish any legal inference that he 
 had been previously discharged from the administratorship. Sawyer v. 
 Knowles, xxxiii. 208. 
 
 17. Proof, that one has been legally appointed to an office or place, furn- 
 ishes a presumption that he continues to hold it during the term prescribed by 
 law, or until he has been legally discharged. Sawyer v. Knowles, xxxiii. 
 208. 
 
 18. The first three years, within which a guardian is bound to settle a 
 guardianship account, dd not commence until assets shall have come into his 
 hands. Hudson v. Martin, xxxit. 339. 
 
 19. In settling a guardianship account with a minor, in the Probate Court, 
 no previous notice is requisite, except in cases where new guardians may have 
 been appointed. Hudson v. Martin, xxxit. 339. 
 
 20. The expenses for the education of a minor, who has a father living, 
 must be paid out of such father's property, when they are not greater than the 
 father can afford, regard being had to the situation of the father's family, and 
 to all the circumstances of the case. Hudson v. Martin, xxxiv. 339. 
 
 21. No fees for travel and attendance at Probate Court can be allowed in 
 the settlement of a guardianship account, except for such as were actually 
 performed and necessary. Hudson v. Martin, xxxiv. 339. 
 
 22. Where the guardian had made specific charges for all his services, his 
 commissions were reduced to two and one-half per cent, upon the moneys in 
 his hands. Hudson v. Martin, xxxiv. 339. , 
 
 23. The property in a judgment recovered by a guardian, in the name of the 
 ward, rests in the ward ; and the guardian has no lien thereon for advances 
 made in its recovery. Lang v. Whitney, xxxvi. 155. 
 
 24. Nor can he maintain any action, after the death of his ward, against an 
 officer, for the money collected on such judgment. Lang v. Whitney, xxxvi. 
 155. 
 
 25. A creditor of a person under guardianship can maintain no action 
 against the guardian. But a refusal to pay the just debts of his ward wiU 
 constitute a breach of the guardian's bond, and the creditor may resort to a 
 suit upon it for indemnity. Raymond v. Sawyer, xxxvii. 406. 
 
 26. A sale of real estate by a guardian, under a license of the Probate 
 Court, without having given the bond for such sale, will vest no title in the 
 grantee ; and the consideration money may be recovered back upon the cove- 
 nants of the deed, or for money had and received. Williams v. Morton, 
 
 XXXTIII. 47. 
 
 27. The bond given by a guardian on his appointment, for the faithful per- 
 formance of his duties, is no security for the sale and avails of real estate 
 sold under license ; nor will the omission to give a bond under such license 
 constitute a breach of his general bond. Williams v. Morton, xxxviii. 47. 
 
HABEAS CORPUS.— HAY. 295 
 
 28. Neither could such a conveyance be considered a release under K. S. 
 of 1841, c. 81, § 7, which relates to corporations taking any real estate, &c. 
 Williams v. Morton, xxxviii. 47. 
 
 29. No person can legally claim to be appointed as the guardian of an- 
 other ; but, with the exceptions of certain legal disqualifications, the appoint- 
 ment is left to the discretion of the Judge of Probate. Lunt v. Auhens, 
 XXXIX. 392. 
 
 30. But the statute authorizes an appeal from his decree by any one 
 aggrieved. The next of kin, or heir presumptive of the ward, may be ag- 
 grieved within the purview of the statute, and can appeal. Lunt v. Auhens, 
 XXXIX. 392. 
 
 31. Whether an appointment of guardian was of a suitable person for the 
 trust, is a fact to be determined by the presiding Judge in the appellate Court, 
 upon the evidence before him, and cannot be re-examined in a Court of law. 
 Lunt V. Aubens, xxxix. 392. 
 
 32. Dower may be assigned by a guardian. Curtis v. Holart, xli. 230. 
 
 HABEAS CORPUS. 
 
 1. To justify the discharge, upon Habeas Corpus, of a respondent, impris- 
 oned by a justice's mittimus, to enforce the payment of a fine for unlawfully 
 selling spirituous liquors, it i^ not sufficient that the mittimus fails to state 
 the name of the purchaser, or the quantity sold, or the time and place of sale, 
 or that there was a prosecutor ; provided, the mittimus shows the offence to 
 be one for which the justice has jurisdiction to impose a fine. Phinney, pefr, 
 xxxii. 440. 
 
 2. Neither, to justify such discharge, is it sufficient that the justice errone- 
 ously ordered the fine to be paid to the State. Phinney, peCr, xxxii. 440. 
 
 3. Where the penalty, for illegally selling spirituous liquors, is recovered by 
 an action of debt, before a justice of the peace, the judgment is to beenforc- 
 ed by execution and not by mittimus ; and a person, imprisoned by virtue of 
 a mittimus in such case, may be discharged by writ of Habeas Corpus. Han- 
 son, pet'r, xxxvi. 425. 
 
 HANDWRITING. 
 See Evidence, 243, 244. 
 
 HAY. 
 
 1. R. S. of 1841, c. 64, by necessary inference, prohibits the sale or pur- 
 chase of hay, unless branded as is prescribed in the first section. Buxton v. 
 Hamblen, xxxii. 448. 
 
296 HEIRS. 
 
 2. A contract to pvir chase hay, in violation of that law, cannot be enforced. 
 Buxton V. Hamblen, xxxii. 448. 
 
 3. A contract for the sale and purchase of pressed hay, to be performed at 
 a future day, upon which the delivery was to be made, cannot be enforced by 
 the seller, if, at the time of delivery, it was not duly branded. Buxton v. Hanib- 
 len, XXXII. 448. 
 
 HEALTH OFFICERS. 
 
 See QlTAKANTINE. 
 
 HEIRS. 
 
 1. Land was conveyed in trust, to the use of G., one of the grantor's sons, 
 for his life, and then to descend and vest in the heirs of the grantor. G. died 
 subsequently to the death of the grantor, leaving one child : — Held, that, if 
 it was at the death of the grantor, that the remainder, subject to the life 
 estate, became vested in his heirs, G. being one of them, might convey his 
 vested remainder, leaving to his child no inheritance in the land, — also, that, 
 if the remainder was contingent until the death of G., and then vested in the 
 heirs of the grantor, G., not being then in life, could not inherit, and his child 
 could take nothing in the land. North v. Philhrooh, xxxiv. 532. 
 
 2. By R. S. of 1841, c. 93, § 3, every illegitimate child shaU be considered 
 as an heir of the person who shall, in writing, signed in the presence of a 
 competent witness, have acknowledged himself to be the father of such child, 
 and shall, in all cases, be considered as heir of his mother, and shall inherit his 
 or her estate ; but he shall not be allowed to claim, as representing his father 
 or mother, any part of the estate of bis or her kindred, either lineal or collat- 
 eral ; unless, before his death, his parents shall have intermarried and had 
 other children, and his father, after such marriage, shall have acknowledged 
 him as aforesaid, or adopted him into his family. Hunt v. Hunt, xxxvil. 
 333. 
 
 2. On a petition for partition of the father's estate, it was held, that the 
 facts essential to be proved to allow an illegitimate child to inherit his father's 
 estate, under this statute, were entirely distinct from such as would authorize 
 him to inherit, by representation of his father or mother, from his lineal and 
 collateral kindred ; and, — 
 
 1st. That no illegitimate child could inherit the estate of his father as heir, 
 unless the written acknowledgment required by this statute had been properly 
 executed. Per Shepley, C. J., and Tennet and Howabd, J. J. — Appm- 
 TON, J., dissenting. 
 
 2d. But that such chUd might inherit, by representation of his father or 
 mother, from his lineal and collateral kindred, without such acknowledgment, 
 if the parents had intermarried and had other children, and the father, after 
 such marriage, had adopted the child into his family. Hunt v. Hunt, xxxTil. 
 333. 
 
HEIRS. 297 
 
 3. The rights to an estate, vested before the Act of 1852, c. 266, must be 
 determined by a legal and judicial, not legislative, construction of the laws in 
 force at the time ; and said Act cannot alter them. Hunt v. Hunt, xxxvii. 
 333. 
 
 4. Where a husband effects an insurance on his life " for the sole and sep- 
 arate use and benefit of his wife," if she dies before her husband, the property 
 in the contract of insurance vests in her heirs ; and the children of a former 
 wife can take no portion of such insurance by inheritance, while any issue of 
 the second wife survives. Lilly v. Lilly, xxxvii. 359. 
 
 5. But, if the wife and her children die before the assured, the beneficial 
 interest is in him, and his administrator can receive the insurance. And the 
 children of a former wife, by the Act of 1844, c. 114, wiU inherit the insur- 
 ance, less the amount of the premium and interest thereon, without being 
 subject to administration. Lilly v. Lilly, xxxvii. 359. 
 
 6. The estate of an intestate must be distributed according to the laws in 
 force at the time of the death. Hughes v. Decker, xxxviii. 153. 
 
 7. If, after the death of the intestate, and before the sum to be distributed 
 is collected, the law as to distribution is changed, such change cannot affect 
 the rights of the distributees at the time of the death. Hughes v. Decker, 
 XXXVIII. 153. 
 
 8. The mother of an illegitimate child is not kindred with her child, under 
 § 19, of c. 38, of Stat. 1821. Hughes v. Decker, xxxviii. 153. 
 
 9. The division of an estate in Probate Court, in which a parcel is set 
 out to an heir long before dead, is invalid. Wass v. Bucknam, xxxvill. 
 356. 
 
 ^ 10. If the owner of land executes a lease of it, for a series of years, and 
 die, the accruing rents, after his death, descend to his heirs. Stinson v. 
 Stinson, xxxviii. 593. 
 
 11. A.n heir apparent, who released all his present and future claim and 
 interest in his_ father's estate, with a covenant, that neither he, nor any one 
 claiming by him, shall ever claim any right to the same, which release was 
 made with the knowledge and consent of his father, is precluded from after- 
 wards setting up title to any pait of the estate,' either as heir or devisee. 
 Curtis V. Curtis, xi. 24. 
 
 12. Lands held in trust, unless generally or specifically devised by the tes- 
 tator, descend to his heirs, and they only can release it. Richardson v 
 Woodbury, xLiii. 206. 
 
 13. Where one, by inheritance, may be entitled to a portion of an estate 
 but had been hopelessly insane for twenty years, and the other heirs covenant 
 that they are solely entitled to represent said part, and that they wUl war- 
 rant and defend the same against all persons claiming under their ancestor 
 the grantees are entitled to hold the whole estate against aU who do not claim 
 under the insane heir. Loomis v. Pingree, xiiii. 299. 
 
 38 
 
298 HUSBAND AND -WIFE. 
 
 HUSBAND AND WIFE. 
 
 I. BIGHTS AND LIABILITIES OF THE HUSBAND, 
 
 II. EIGHTS AND LIABILITIES OF THE WIFE. 
 
 III. THEIR RESPECTIVE RIGHTS IN StER PROPERTY. 
 
 IV. ACTIONS BY AND AGAINST HUSBAND AND WIFE. 
 
 L RIGHTS AND LIABILITIES OF THE HUSBAND. 
 
 1. For articles furnished a married woman residing with her husband, 
 necessary and proper for her, though charged to her, the husband is liable. 
 Furlong v. Hysom, xxxv. 332. 
 
 2. Cohabitation, of itself, furnishes a presumption of the husband's assent 
 to contracts made by the wife for necessaries, suitable to his degree and estate ; 
 and the jury may infer authority. Furlong v. Hysom, xxxv. 332. 
 
 3. Under the Act of 1847, c. 27, the husband may lawfully transfer a 
 promissory note to his wife, although the maker is his creditor ; and inade- 
 quacy of consideration is not sufficient to defeat such transfer. There must 
 be also an intent to defraud existing creditors. Motley v. Sawyer, xxxviii. 
 68. 
 
 4. But inadequacy of consideration may be submitted to the jury, for the 
 sole purpose of ascertaining the intent of the parties. Motley v. Sawyer, 
 xxxTiii. 68. 
 
 5. No action can be maintained against the husband for purchases of per- 
 sonal estate, made by his wife, in carrying on business on her own account, 
 although made with his knowledge and consent. Colby v. Lamson, xxxix. 
 119. 
 
 6. And although she appropriated a portion of the proceeds of such pur- 
 chases for the benefit of her husband and family. Golly v. Lamson, xxxix. 
 119. Oxriard v. Swanton, xxxix. 125. 
 
 7. But, where the husband knowingly participated in the profits of the sale, 
 and that she professed to act for him, a jury may infer from such facts, that 
 the purchases were made upon his credit. Oxnard v. Swanton, xxxix. 125. 
 
 8. The wife of A., in his absence and by his authority, having accepted a 
 draft for him in her own name, the rights of the parties are to be determined 
 by the rules of common law, which are not afiected in their application to this 
 case by the statutes of this State. Such indorsement, therefore, will bind the 
 iusband. Hancock Bank v. Joy, xxr. 568. 
 
 9. The wife of A., in default of payment of fine and costs, duly imposed 
 itipon conviction of a statute offence, was committed to prison. Under R. S. 
 of 1841, c. 175, she gave her negotiable promissory note, payable to County 
 Treasurer, &c., for the amount of the fine and costs, and for her board while 
 in prison. In an action by the indorsee of said note against the husband : — 
 Held, that he was not liable. Bates v. Enright, xlii. 105. 
 
 See Maekied Woman. 
 
HUSBAND AND WIFE. 299 
 
 n. EIGHTS AND LIABILITIES OF THE WIFE. 
 
 10. The Act of 1844, c. 117, has not so altered the common law, as to 
 enable a /erne covert to sell her personal property, without the assent of her 
 husband. Suiift v. Luce, xxvii. 285. 
 
 11. Neither at law or equity,'can the widow maintain process against an 
 authorized agent, for moneys received for lands belonging to her and sold dur- 
 ing coverture. Crosby v. Otis, xxxii. 256. 
 
 12. A bond, given to husband and wife for their maintenance during each 
 of their lives, belongs to the wife, if she survive the husband, unless reduced 
 to possession by him ; to do which, he must do some act indicating an ap- 
 propriation of it, or disaffirming her right. Fike v. Collins, xxxiii. 38. 
 
 13. Under the recent statutes, the property in a negotiable note may pass 
 from the husband to the wife, during coverture, by his indorsement and 
 delivery. And, after dissolution of the marriage, such indorsee may maintain 
 suit upon it in her name. Motley v. Sawyer, xxxiv. 540. 
 
 14. The wife, as such, has no authority to put her husband's name to a 
 contract. Shaio v. Emery, xxxviii. 484. 
 
 15. But where a promissory note, against the defendant, was canceled and 
 given up to his wife, for which she gate another similar note, changing the 
 word " order" to " bearer," and signed the defendant's hame thereto, which he 
 subsequently ratified ; such note is sufficient to establish a prima facie case, 
 in an action by the party lawfully holding it. Shaw v. Emery, xxxviii. 484. 
 
 16. A wife cannot maintain an action against her husband ; and, if, in such 
 action, he faUs properly to plead the coverture in bar, and the case is deter- 
 mined in his favor, he is not entitled to costs. Smith v. Gorman, xli. 405. 
 
 17. A gold watch, given by a debtor to his wife before marriage, in 1844, 
 and while they were residing in the State of New York, and still in her pos- 
 session, is liable to attachment here for the debts of her husband. Tllexan v. 
 Wilson, xiiii. 186. 
 
 18. But property, conveyed to the wife by her father, since 1844, and while 
 residing in this State, is not thus liable. Tllexan v. Wilson, xxiii. 186. 
 
 See Mabkied Woman. 
 
 ni. THEIR KESPECTIVE RIGHTS IN HER PROPERTY. 
 
 19. The Act of 1844, c. 117, is prospective merely. The interest which 
 the husband acquired in the real estate of the wife, by a marriage prior to 
 that Act, IS not afi'ected by it. McLellan v. Nelson, xxvii. 129. Greenleaf 
 V. Hill, XXXI. 562. •' 
 
 20 A husband, by his marriage, becomes entitled to a freehold estate in 
 the lands then owned by the wife, and that estate he can lawfuUy convey 
 Irash V. Patterson, xxix. 499. Eldridge v. Preble, xxxiv. 148. 
 
 21 By the common law, a note made payable to a mai-ried woman, in- 
 stantly belongs to her husband. Greenleaf v. Eill, xxxi. 562. Eancoch 
 Hank V. Joy, xli. 568. 
 
 22 When lands, belonging to the wife, have been sold by an authorized 
 agent, the money received therefor, in the hands of the agent, belongs to the 
 J."S?xxxn.l56 '"''' ™'^ '' """^'^ '^ ""'' admiisteatir ' cLt 
 
300 HUSBAND AND WIFE. 
 
 23. Under the Act of 1844, c. 117, the life estate of the husband in the 
 lands of his wife, was divested from him, in behalf of his wife, only upon 
 condition that she proved the title not to have come to her from their after 
 coverture. Eldridge v. Preble, xxxiv. 148. 
 
 24. The amendatory Act of 1847, and the additional Act of 1848, were 
 prospective only. Eldridge v. Preble, xxxiv. 148. 
 
 25. The common law principle, that the income from the labor of the wife 
 enures to the benefit of the husband, has not been impaired by the laws of 
 this State. Bradbury v. Andrews, xxxtii. 199. Merrill v. Smith, xxxvii. 
 394. 
 
 26. To become the owner by "purchase," under Act of 1847, c. 27, 
 the wife must make it from her own property, or that of others, by their 
 consent, for her use. Merrill v. Smith, xxxtii. 394. 
 
 27. But a " purchase," made on the credit, or from the means of the hus- 
 band, or from the avails of her labor, belongs to the husband. Merrill v. 
 Smith, xxxvii. 394. 
 
 28. A seizin by a married woman in her own right, without seizin in fad, 
 will entitle her husband at her death to become tenant by curtesy. Wass v. 
 Bucknam, xxxviii. 356. 
 
 29. The indorsement of a note, made payable to a married woman, transfers 
 no property in it, at common law. Hancock Bank v. Joy, xii. 568. 
 
 See Mabkied Woman. 
 
 IV. ACTIONS BY, AND AGAINST, HTJSBAND AND WIFE. 
 
 30. In an action against husband and wife, for goods sold to her before 
 marriage, where she, while sole, on petition, had been duly declared a bank- 
 rupt under U. S. Bankrupt Act of 1841, and had presented a petition for her 
 discharge, and then intermarried with the defendant ; and, subsequently to 
 the marriage, a certificate of discharge, under a decree of the Court, was 
 issued to her in her maiden name : — Held, that such certificate was available 
 to her and her husband in such suit. Chadwick v. Starrett, XXTII. 138. 
 
 31. A suit by husband and wife, to. recover land which she had deeded 
 when an infant, is a disaffirmance of her act of sale. Ghadbourne V. BacUiff, 
 XXX. 354. 
 
 32. In a suit by husband and wife, the defendant, under the general issue, 
 cannot prove that she was lawfully married to a former husband, who was 
 living at the time of her second marriage. Benner v. Fowles, xxxi. 305. 
 
 33. It seems, that a marriage de facto, whether legal or not, is sufiicient 
 for the maintenance of such an action. Benner v. Fowles, xxxi. 305. 
 
 34. The recovery of an action in the name of both, upon a bond, given 
 for their maintenance, without taking out execution, shows a disposition not 
 to appropriate such bond to the husband. Pike v. Collins, xxxiii. 38. 
 
 35. The statutes, enlarging the rights of married women, as to property, 
 do not extend to rights of action for tort. Ballard v. Bussell, xxxiii. 196. 
 
 36. To recover for an injury sustained by a married woman through mal- 
 practice of a surgeon, the husband must be a party to the suit, although he 
 may have previously deserted her. Ballard v. Bussell, xxxiii. 196. 
 
 37. And a discharge of the cause of such action will bar any suit upon it. 
 Ballard v. Bussell, xxxiii. 196. 
 
XDENTITY.— IMPOUNDING. 301 
 
 38. Neither, by the common law, nor by any statute, can an action on a 
 contract be maintained against husband and wife jointly. Davis v. Millett, 
 XXXIV. 429. 
 
 39. Neither can the wife become a party to a contract of purchase, solely, 
 or jointly with her husband, by the common law or statute law. Davis v. 
 Millett, xxxiT. 429. 
 
 40. For an injury done to the wife through a defect in the highway, the 
 husband and wife must join in an action. Sanford v. Augusta, xxxiT. 
 536. Starhird v. Frankfort, xxxT. 89. 
 
 41. Where the lessee of real estate which is manifestly beneficial, is a 
 married woman, one, entitled to dower in the premises, may enforce it against 
 both husband and wife. Libhey v. Staples, xxxix. 166. 
 
 See Costs, 19. 
 
 MiKKiED Woman. 
 
 MOEIGAGE, 7. 
 
 IDENTITY. 
 
 The certificate of two justices, of the peace, discharging a poor debtor 
 from arrest on execution, erroneously stated the date of the judgment ; but 
 in every other particular conformed to the facts: — Held, that the record evi- 
 dence preponderated in favor of the identity of the judgment. Hathaway v. 
 Stone, XXXIII. 500. Warren v. Davis, xxii. 343. 
 
 See Evidence, 280—291. 
 
 ILLEGITIMATE CHILDREN. 
 See Heies, 2, 8. Patjpee, 6. 
 
 IMPEACHMENT. 
 See Judgment. Mills, &c. 
 
 IMPOUNDING. 
 
 1. The certificate, left with the pound-keeper, should state the town in 
 which the impounder resided, and his name, the owner of the inclosure and 
 the town m which it is located; or it wiU not be a justification. Morse v. 
 lieed, xxvin. 481. 
 
302 INDIANS.— INDICTMENT. 
 
 2. And the advertisements should state the " time and cause of impound- 
 ing;" the date of the advertisement not being sufficient. Morse v. Reed, 
 XXVIII. 481. 
 
 3. By the R. S. of 1841, sheep, found doing damage upon the land of any 
 person, may be impounded, as a remedy to recover such damage, unless, 
 being rightfully upon the adjoining land, they escaped therefrom through a 
 defect in that distinct part of the division fence, which he, suffering the 
 damage, was bound, by prescription or otherwise, to maintain. Webber v. 
 Closson, XXXV. 26. 
 
 4. In a penal action upon R. S. of 1841, c. 30, an allegation that the act 
 complained of was contrary to an Act of the State, entitled, " of pounds and 
 impounding beasts," is equivalent to an allegation that it was contra formam 
 statuti. Cleaves v. Jordan, xxxv. 429. 
 
 5. Sect. 4 of c. 17, of the Act of 1853, provides that each city or town 
 shall be responsible in damages to the party injured, for all Ulegal doings or 
 defaults of its pound-keeper ; notwithstanding which, the pound-keeper is 
 also liable. Sounds v. Mansfield, xxxviii. 586. 
 
 6. In a suit against him, he cannot justify as pound-keeper, without show- 
 ing that his bond was approved before the acts complained of were done. 
 Bounds V. Mansfield, xxxviii. 586. 
 
 See Bond, 10. 
 
 INDIANS. 
 
 The power given to Congress to regulate commerce with the Indian tribes, 
 does not include navigation with the Penobscot Indians, or, as it seems, with 
 any of the Indian tribes whatever. Moor v. Veazie, xxxii. 343. 
 
 INDICTMENT. 
 
 I. WHAT IS INDICTABLE. 
 II. PLEADING. 
 III. PRACTICE AND EVIDENCE. 
 
 I. WHAT IS INDICTABLE. 
 
 1. Since the enactment of R. S. of 1841, c. 25, § 57, the obligation of 
 towns to keep in repair their highways and bridges, has been absolute and 
 unqualified ; and, for neglect of that duty, they are liable to indictment. State 
 V. Gorham, xxxvii. 451. 
 
 2. And all such bridges and abutriients as are constructed by railroad com- 
 panies, to enable their road to pass over or under any turnpike, road, &c., 
 are parts of the highway which the town is bound to maintain, and for the 
 neglect of which they are indictable. State v. Gorham, xxxvii. 451. 
 
INDICTMENT. 303 
 
 II. PLEADING. 
 
 (a) FlNDINQ OF THE INDICTMENT. 
 
 (b) Caption. 
 
 (c) Conclusion. 
 
 (d) Parties. 
 
 (e) Avehking a negative. 
 
 (f) Time and place. 
 
 (g) SOKPLUSAGE AND CERTAINTY. 
 
 (h) Duplicity and kepugnancy. 
 (i) Other poiiSts. 
 (j) Under statutes. 
 
 (a) Finding of the indictment. 
 
 3. An indictment cannot lawfully be found in the District Court for an 
 offence, which can be tried in this Court only, unless the accused had been 
 previously committed or bound over to the District Court upon recognizance. 
 State V. Jackson, xxxii. 40. 
 
 4. Where such an indictment had been found against two jointly, one of 
 whom had neither been committed nor recognized, while the other had been 
 bound over: — Held, that the indictment was irregular as to the former, but 
 that that circumstance did not impair its validity as to the latter. State v. 
 Jackson, xxxii. 40. 
 
 5. Such an indictment is not invalidated, merely because the recognizance, 
 which preceded it, did not specify the offence, charged in the indictment. 
 State V. Jackson, xxxii. 40. 
 
 6. An indictment found by twelve persons acting as grand jurors, some of 
 whom were added to the panel by virtue of a venire, issued by order of the 
 Court in term time, is void." State v. S'ymonds, xxxvi. 128. 
 
 7. Such an objection, made on motion in writing, in the nature of a plea 
 in-abatement, is fatal, though not taken till the arraignment. State v. Sy- 
 monds, xxxvi. 128. 
 
 8. An indictment, found by persons selected as grand jurors, under writs 
 of venire facias, without seal, may be quashed on motion, Staie v. Light- 
 hody, xxxviii. 200. 
 
 9. An indictment is properly certified by the foreman of the grand jury, 
 although it bear only the initials of his christian name. State v. Taqaart 
 xxxTiii. 298. ^^ ' 
 
 (b) Caption. 
 10. An indictment, commencing " State of Maine, Cumberland, ss At 
 the Supreme Judicial Court, begun and holden at Portland, within and for 
 the County of Cumberland," is sufficient to show that the Court, at which it 
 was found, was holden for that county in the State of Maine. State v Con- 
 ley, XXXIX. 78. 
 
 (c) Conclusion. 
 
 r..lh^^ indictment for keeping a house of ill fame, being a statute offence, 
 need not conclude that the act was to the common nuisance of the public 
 otate V. atevens, xl. 559. ^ 
 
304 INDICTMENT. 
 
 (d) Parties. 
 
 12. If an indictment against a feme covert describes her as "matron," the 
 error, if it be one, is not sufficient cause for quashing the indictment or arrest- 
 ing the judgment. State v. Nelson, xxix. 329. 
 
 13. The forfeiture, incurred by a town for a defect in its highways, whereby 
 a loss of life occurred, may be recovered by the administrator or executor by 
 indictment. State v. Bangor, xxx. 341. 
 
 (e) Averring a negative. 
 
 14. In an indictment' against a feme covert, for receiving stolen goods, it is 
 unnecessary to allege that the offence was not committed by the coercion of 
 the husband. State v. Nelson, xxix. 329. 
 
 15. Allegations in an indictment, suited only to negative an anticipated de- 
 fence, need not be proved. State v. Bangor, xxx. 341. 
 
 16. The exceptions in the enacting clause of -a penal statute are -to be 
 negatived in the indictment. State v. Keen, xxxiv. 500. State v. Ourney, 
 xxxvii. 149. Hinckley v. Penobscot, xlii. 89. 
 
 ' 17. Any words excluding the exceptions of the statute with certainty are 
 sufficient. State v. Keen, xxxiT. 500. 
 
 17. Under the Act of 1851, an indictment, charging that the accused 
 was a common seller of intoxicating liquors, "without any lawful authority, 
 license or permission," is sufficient. State v. Keen, xxxiv. 500. 
 
 18. It is not necessary that the indictment should negative any clause 
 subsequent to the enacting clause. They are to be pleaded and proved by 
 the defendant. State v. Gurney, xxxtii. 149. Hinckley v. Penohscot, 
 XLII. 89. 
 
 19. Thus, in an indictment charging that the defendant is a common sel- 
 ler of prohibited liquors, it is not necessary to aver that they were not import- 
 ed from any foreign place or sold by him in the importation packages. State 
 V. Gurney, xxxYii. 149. 
 
 See Indictment, 60. 
 
 (f) Time and place. 
 
 20. In an indictment, every material fact necessary to constitute the offence 
 charged must be set forth with certainty as to the time. State v. Thurston, 
 xxxT. 205. 
 
 21. An indictment, found in October, 1852, charging that the defendant 
 on the 25th March, 1851, committed adultery with E. W., the wife of S. H. 
 W., she being a married woman and the lawful wife of S. H. W., does not 
 sufficiently allege that she was a married woman when the alleged offence was 
 committed. State v. Thurston, xxxT. 205. State v. Hutchinson, xxxvi. 
 261. 
 
 22. But an allegation that the defendant, on the 1st of Nov., 1852, and 
 on divers other days and times, &c., did commit the crime of adultery with 
 L. H., the wife of one M. iH., he, the said defendant, being then and there 
 a married man, &c., sufficiently declares the defendant to have been married 
 to some other person than L. H., at the time of the alleged offence. State v. 
 Hutchinson, xxxti. 261. 
 
INDICTMENT. 305 
 
 23. In an indictment for murder, the time of the mortal stroke and death 
 should be alleged ; but the old form " did suffer and languish, and languish- 
 ing did live," may be omitted. State v. Oonley, xxxix. 78. 
 
 24. An indictment, in which two distinct times and places have been men- 
 tioned, in, and at, which the substantive offence has been committed, and 
 reference thereto is afterwards made by the words " then and there," is de- 
 fective ; but when one of the places previously mentioned is merely descriptio 
 personae, it is unexceptionable. State v. Jackson, xxxix. 291. 
 
 25. In an indictment for keeping a. house of ill fame, it is unnecessary to 
 describe the street where it is situated. State v. Stevens, XL. 559. 
 
 (g) Surplusage and certainty. 
 
 26. In a charge for a conspiracy, if the act to be done is in itself ille- 
 gal, the indictment need not set forth the means by which it was to be ac- 
 complished. State V. Bartlett, xxx. 132. State v. Bipley, xxxi. 386. 
 
 27. If the act to be done is not in itself unlawful, but becomes so from the 
 purposes for which, and the means hy which, it is to be done, the indictment 
 must set out enough to show the illegality. State v. Bartlett, xxx; 132. 
 Stale V. Bipley, xxxi. 386. 
 
 28. In conspiracy, acts need not be set forth or proved, except as evidence 
 of the combination. Staie v. Bipley, xxxi. 386. 
 
 29. In conspiracy, if the means, by which the alleged purpose was to be 
 accomplished, be not set out, the purpose itself should appear to have been 
 unequivocally illegal and forbidden by law. State v. Hewett, xxxi. 396. 
 State V. Boherts, xxxiv. 320. 
 
 30. It is not enough, that it sufficiently describe the crime attempted to be 
 charged ; it should also state the facts necessary to constitute it. State v. 
 Hewett, XXXI. 396. State v. Boberts, xxxiv. 320. 
 
 _ 31. An indictment against a town, cannot be maintained upon an allega- 
 tion, that there is a highway extending into several towns, and that the " said 
 road or that part of it in" the defendant town, is out of repair, &c. State v. 
 Milo, xxxii. 55. 
 
 32. In an indictment, alleging that a pregnant female was murdered by the 
 defendant, by his attempt to procure abortion, and that " she was quick with 
 child," the latter clause may be rejected as surplusage. State v. Smith 
 XXXII. 369. ' 
 
 33. An indictment charged, that the defendant, in the exercise of his trade 
 collected and kept certain (specified) articles in a corrupted state, " and in 
 manner aforesaid," coUected and kept other (specified) ofi'ensive matters and 
 " that by reason of the premises," &c. : —Held, that the indictment sufficient- 
 ly aUeged, that It was m the exercise of the trade, that the last mentioned 
 off-ensive matters were collected and kept; and that the term " premises" 
 included both the exercise of the trade and the accummulation of the mate- 
 rials m that exercise, &c. State v. Hart, xxxiv. 36. 
 
 34. An indictment charging a conspiracy to defraud a person of his monev 
 goods or es ate ; or to cheat and defraud him of his money, goods, or Estate • 
 or wrongfully and wickedly to obtain his money and other p opertv designed^ 
 and with intent to defraud, without particularizing the o^ct to be acco"^^^ 
 phshed or the means to be used, is insufficient. State v. Bolerts xxxiT 320. 
 
 39 
 
306 INDICTMENT. 
 
 35. An allegation in such an indictment, that the purpose was to he ac- 
 complished by " false pretences," is not sufficiently descriptive of the means. 
 State V. Boberts, xxxiT. 320. 
 
 36. In an indictment for murder by the infliction of wounds, their length, 
 breadth and depth may be omitted, {f it is alleged they were mortal. State 
 V. Gonley, xxxix. 78. 
 
 37. Where it is alleged, that the defendants, with a dangerous weapon, 
 struck and beat, giving mortal wounds of which the person died, it is un- 
 necessary to add the words " by the stroke or strokes aforesaid." State v. 
 Gonley, xxxix. 78. 
 
 38. An averment, that the liquors were sold " by retail and in less quanti- 
 ties than the revenue laws of the United States prescribe for the importation 
 thereof into this country," may be regarded as surplusage. State v. Robinson, 
 XXXIX. 150. 
 
 (h) Duplicity and repugnancy. 
 
 39. More than one offence of the same nature may be embraced in one in- 
 dictment. State V. Nelson, xxix. 329. State v. Burke, xxxviii. 574. 
 
 40. In an indictment for receiving stolen goods, where the goods of several 
 persons are received at the same time, so that the transaction is the same, one 
 count may embrace the whole. State v. Nelson, xxix. 329. 
 
 41. The buying, receiving and aiding in concealing stolen goods, under 
 R. S. of 1841, c. 156, § 10, constitute but one offence, which maybe com- 
 mitted in three different modes. State v. Nelson, xxix. 329. 
 
 42. An indictment under R. S. of 1841, c. 162, "of malicious mischief," 
 &c., may be maintained, althoughvthe facts proved might have supported an 
 indictment under c. 155, for arson. Thayer v. Boyle, xxx. 475. 
 
 43. An indictment for malicious mischief will not necessarily be defeated, 
 merely because the acts proved might have supported a charge for larceny. 
 State V. Leavitt, xxxii. 183. 
 
 44. In an indictment, a count sufficiently charging two distinct offences, is 
 bad for duplicity. State v. Palmer, xxxv. 9. 
 
 45. But a count describing one offence with sufficient accuracy, is not 
 rendered bad by the addition of averments insufficiently setting forth another 
 offence. State v. Palmer, xxxv. 9. 
 
 46. An objection to an indictment for duplicity should be taken, it seems, 
 by demurrer or on motion to quash. State v. Palmer, xxxv. 9. 
 
 47. An indictment does not contain two offences in orit count which alleges 
 a nuisance and describes the place of its existence. State v. Payson, xxxvii. 
 361. 
 
 48. One good count is sufficient to support a general verdict of guilty, 
 however defective the others may be. State v. Burke, xxxviil. 574. 
 
 49. An indictment under § 2, c. 162 of R. S. of 1841, charging, that the 
 act was done maliciously and wantonly, describes but one offence ; and is 
 supported by proof that the act was done maliciously or wontonly. State v. 
 Burgess, XL. 592. 
 
INDICTMENT. 307 
 
 (i) Other joints. 
 
 50. In an indictment, one count may refer to another, to save unnecessary- 
 repetition. State V. Nelson, xxix. ,329. 
 
 51. It seems, an indictment is good at common law, which charges that the 
 defendant did unlawfully keep and maintain, for his own lucre, a common and 
 disorderly room, called a bowling alley, and did unlawfully procure and per- 
 mit divers persons to frequent and come together at said alley for the purpose 
 of bowling, and being so together, there to play at bowls in the day time and 
 in the night time, to the great annoyance, damage and common nuisance of 
 all the citizens of the State. State v. Haines, xxx. 65. 
 
 52. So is an indictment, which alleges that the defendant " with force and 
 arms, near the dwellinghouses of divers citizens, and near divers streets and 
 common highways, did unlawfully erect and continue and use a certain build- 
 ing as a place for bowling ; and, being so there, to play at bowls in the day 
 time, &c., thereby occasioning great noises, damage and other annoyances, 
 and becoming injurious and dangerous to the comfort of divers individuals 
 and the public, and to the common nuisance, &c. Stale v. Haines, xxx. 65. 
 
 53. An indictment must allege all the material facts, necessary to be prov- 
 ed to procure a conviction. State v. Fhilbrick, xxxi. 401. 
 
 54. An indictment for obtaining property by false .pretences, is defective, 
 unless it set forth the sale or exchange, and that the false pretences were made 
 with a view to effect such a sale or exchange, and that, by reason thereof, the 
 party was induced to part with his property. State v. Fhilbrick, xxxi. 401. 
 
 55. An indictment against a town, for not maintaining a bridge upon one of 
 its highways, need not allege that the .highway had been opened for travel ; 
 or that the time for opening it had expired ; or that it was practicable or 
 necessary to build the bridge ; or that the safety and convenience of travelers 
 required the bridge. State v. Milo, xxxii. 57. 
 
 56. An indictment, alleging the breaking into and stealing within " a build- 
 ing," (without stating that it was a building in which goods, merchandize or 
 any valuable thing was kept for use, sale or deposit,) charges a simple larce- 
 ny only. State v. Savage, xxxii. 583. 
 
 57. In an indictment under R. S. of 1841, c. 161, § 1, it is not necessary 
 to allege that the property parted with by the defendant was of any value. 
 State V. Dorr, xxxiii. 498. 
 
 58. An indictment for forgery or counterfeiting, or for having counterfeit 
 bills m possession, should set forth the forged or counterfeit instruments by 
 
 fac simile, or copy, whenever practicable. It must set forth the tenor of the 
 instruments, and not their purpoH and effect. State v. Bonney, xxxiv. 383. 
 
 59. The crime of adultery is well laid, if one only of the parties is alleged 
 to be married at the time of the commission of the offence. State v Hutch 
 mson, XXXVI. 261. 
 
 60. The aUegations of an indictment in this Court are to regard the laws 
 ot tins State only. State v. Gurney, xxxvii. 149. 
 
 61. An indictment, charging a person as a common seUer, includes the 
 charge of making actual sales. State v. Day, xxxvii. 244. 
 
 62. In criminal pleading, the venue must appear to be within the iurisdic- 
 tion of the Court. State v. Gonley, xxix. 78. State v. /ac/^son, ''xxxix. 
 
 63. Thus, where the material facts are aUeged to have taken place "in 
 
308 INDICTMENT. 
 
 said county of" C, being the same county named in the margin, it is suffi. 
 cient. State y. Gonley, xxxix. 78. 
 
 64. An indictment, alleging an offence to have been committed in a town 
 named, and that it belonged to the county at the finding of the bill, without 
 describing in what county it was when the offence was committed, is valid. 
 State V. Jackson, xxxix. 291. 
 
 65. An indictment against a receiver of stolen goods, knowing them to be 
 stolen, which contains no allegation of the ownership of the property, or 
 that the principal has been duly convicted, is fatally defective. State v. 
 McAlvon, XI. 133. 
 
 (j) Under statutes. 
 
 66. A conspiracy unlawfully to do an injury to the person of an individual, 
 or to do any unlawful act, injurious to the administration of public justice, 
 is a statute offence. State v. Rvpley, xxxi. 386. 
 
 67. To conspire to "injure the property" of an individual, is a crime 
 against the statute. State v. Hewett, xxxi. 396. 
 
 68. By the " injury" thus prohibited, is meant an injury to the property 
 in rem, by which it is destroyed, or its value diminished. State v. Hewett, 
 XXXI. 396. 
 
 69. The allegations of an indictment, framed on a penal statute, must 
 charge all the elements of the offence, so as to bring the case of the ac- 
 cused precisely within that described in the statute. State v. McKenzie, 
 XLii. 392. 
 
 70. An indictment, under R. S. of 1841, c. 157, § 5, charged the defend- 
 ant with having, " in his custody and possession, at the same time, ten simi- 
 lar false, forged and counterfeit bank bills," &c. ; — Held, that the allega- 
 tion was insufficient. The word " similar" is not equivalent to the phrase, 
 " in the similitude of," and cannot be substituted for it. The word " simili- 
 tude" was designed to be used in the statute as synonymous with " forged" 
 or " counterfeit." State v. McKenzie, xlii. 392. 
 
 III. PRACTICE AND EVIDENCE. 
 
 71. If the counts in an indictment are so numerous as to embarrass the de- 
 fence, the Court, in its discretion, may compel the prosecutor to elect on which 
 charge he will proceed. State v. Nelson, xxix. 329. 
 
 72. In an indictment, one count may refer to another, to save unnecessary 
 repetition. State v. Nelson, xxix. 329. 
 
 73. A motion to quash an indictment is addressed to the discretion of the 
 Court. State v. Barnes, xxix. 561. State v. Haines, xxx. 65. State v. 
 Futnam, xxxviii. 296. State v. Taggart, xxxviii. 298. State v. Burhe, 
 XXXVIII. 574. 
 
 73. And, after verdict, such a motion is irregularly before the Court. State 
 V. Barnes, xxix. 561. 
 
 74. Where an indictment for larceny contains any particulars descriptive of 
 the property stolen, though not necessary to be inserted, they must be proved. 
 State V. Jackson, xxx. 29. 
 
INDICTMENT. 309 
 
 75. Demurrer, or motion in arrest of judgment, is the proper remedy against 
 a defective indictment. State v. Haines, xxx. 65. State v. Putnam, xxxtiii. 
 296. State v. Taggart, xxxviii. 298. State v. BurJce, xxxviir. 574. 
 
 76. Upon conviction of a nuisance, the Court may punish by fine only. Or 
 they may cause the nuisance to he abated. But they will not abate, when 
 strangers to the proceedings might be improperly affected. State v. Haines, 
 xxx. 65. 
 
 77. An indictment for maliciously breaking down a dam, belonging to a 
 person named, cannot be sustained except upon proof that such person had 
 some interest in the dam. State v. Weeks, xxx. 182. 
 
 78. The right of an administrator to prosecute an indictment may be proved , 
 by letters of administration, gi-anted by the Probate Court of another county. 
 State V. Bangor, xxx. 341. 
 
 79. Where several defendants are jointly indicted for a misdemeanor, and 
 one is put on trial alone, he may introduce, as a witness, the wife of a co- 
 defendant, who stands defaulted on his recognizance. State v. Worthing, 
 XXXI. 62. 
 
 80. "Under the Act of 1842, c. 27, for matters which can be tried in the 
 Supreme Judicial Court alone, the grand jury of the District Court cannot 
 indict, unless the accused has been committed or bound over to the District 
 Court. State v. Jackson, xxxii. 40. 
 
 81. And where two were thus jointly indicted, only one of whom was 
 bound over or committed, the indictment is good as to him alone. State v. 
 Jackson, XXXII. 40. 
 
 82. And although the recognizance of such one did not specify for what 
 offence-he was to answer, the indictment is valid. State v. JacJcson, xxxii. 40. 
 
 83. In the trial of an indictment, charging a conspiracy to prosecute a per- 
 son who was not guilty, the government cannot prove that the defendants 
 prosecuted other persons who were guilty. State v. Walker, xxxil. 195. 
 
 84. In the trial of an indictment for murder, alleging the act to have been 
 done with a specified instrument, it need not be proved to have been done 
 with that particular instrument. But will be sufficient if proved to have been 
 done with some other instrument, if the nature of the violence, and the kind 
 of death occasioned by it, be the same. State v. Smith, xxxil. 369. 
 
 85. Upon a conviction on an indictment, charging an attempt to commit a 
 rape, without alleging the age of the female upon whom the assault was made, 
 the milder punishment only will be awarded. State v. 'Fielding, xxxil. 585. 
 
 86. In the trial of an indictment, concluding against the peace and contra 
 formam statuti, the Judge, though requested, need not instruct the jury 
 whether the indictment is, or is not, good at common law. State v. Hart, 
 xxxiv. 36. 
 
 87. It is no defence to an indictment, for exercising a noxious trade in a 
 public locality, that the municipal authorities have omitted to assign any place 
 for the exercise of such a trade. State v. Hart, xxxiv. 36. 
 
 88. Judgment upon a verdict in the Supreme Judicial Court, on an indict- 
 ment found in the District Court, for an offence of which that Court had ex- 
 clusive jurisdiction, wiU be arrested, if the case was erroneously transferred 
 to the Supreme Judicial Court for trial, whHe the District Court was in exist- 
 ence. Slate V. Bonney, xixxiv. 223. 
 
 89. An indictment for obstructing a "public street" is sustained by proof 
 ot obstruction to a town way. State v. Beeman, xxxt. 242. 
 
310 INDICTMENT. 
 
 90. If, on -written motion, or plea in abatement it appear that, in finding 
 the bill of indictment, there could not have been a concurrence of twelve law- 
 ful grand jurors, the accused cannot lawfully be required to plead to the in- 
 dictment, or be put upon trial, though the objection be not taken until the 
 arraignment. State v. Symonds, xxxvi. 128. State v. Lightbody., xxxyiii. 
 200. 
 
 91. Upon the overruling of a demurrer to a complaint or indictment, judg- 
 ment is peremptory. State v. Merrill, xxxvii. 329. 
 
 92. If the defendant is found guilty of a part only of the offence charged, 
 he is legally acquitted of the rest of the indictment. State v. Payson, 
 xxxTii. 361. 
 
 93. Where an indictment alleges that the property embezzeled was posr 
 sessed by C. P. B., and by him delivered to the defendant, proof that it was 
 delivered by C. P. B., to some one acting for and by the latter to the defend- 
 ant, -will support the allegation. Stq^te v. Hinckley, xxxviii. 21. 
 
 94. The fact that one is the duly appointed agent of the town furnishes 
 him no protection for selling liquor, if the property and the profits of selling 
 it are his. State v. Putnam, xxxviii. 296. 
 
 95. After verdict, a nol. pros, may be entered as to any part of the count 
 in an indictment, vi'hereby the charge is rendered less criminal. State v. 
 Burke, XXXVIII. 574. 
 
 96. Judgment will not be arrested because some of the counts are bad for 
 duplicity. State v. Burke, xxxviii. 574. 
 
 97. In the trial upon an indictment, for an assault with a dangerous weapon 
 with intent A. B. to kill and murder, a verdict that the accused was guilty 
 of being accessory before the fact, of an assault with intent to kill A. B., can- 
 not be sustained. State v. Scannell, xxxix. 68. 
 
 98. "Where a party is accused of the greater, the jury may find him guilty 
 of the lesser offence. State v. Waters, xxxix. 54. 
 
 99. On an indictment for an assault with a dangerous weapon upon A. B., 
 with intent to kill and murder, a general verdict of guilty is sustainable. 
 State V. Waters, xxxix. 70. 
 
 100. In criminal cases, the jurisdiction of the Supreme Judicial Court 
 extends over offences committed within the territorial limits of the county, 
 whether before or after its incorporation. State v. Jackson, xxxix. 291. 
 
 101. A motion to quash an indictment, based upon proof to be produced, 
 is unavailable without its production. State v. Nutting, xxxix. 359. 
 
 102. If, during the trial, the Attorney for the State obtains leave of the 
 Court to enter a nol. pros, to a portion of the indictment, he may, at the same 
 trial, if the rights of the respondent are not prejudiced by his dismissal of any 
 witnesses, by leave of the Court, withdraw the entry, and proceed upon the 
 whole indictment. State v. Nutting, xxxix. 359. 
 
 103. In criminal cases, the facts must have been settled before the case is 
 presented to the fuU Court. State v. Moran, xi,. 129. 
 
 104. A. was convicted of the crime of forgery. He excepted to certain 
 instructions of the Court, which exceptions were withdrawn at the succeeding 
 term ; whereupon, at the suggestion of the County Attorney, the indictment 
 was dismissed, and the defendant discharged without day. A year afterwards, 
 he was again indicted for forgery, and the allegations were in all respects sim- 
 ilar to those in the first indictment, to which he pleaded autre-fois convict : — 
 Held, that such plea was good. State v. Elden, xli. 165. 
 
INFANT. 311 
 
 105. A. was aiTaigned upon an indictment containing four counts ; the first 
 two charged an assault in different forms, with intent to murder ; the last two, 
 an assault with intent to kill : — Held, that all the counts charged but one 
 substantive offence, and the jury may find him guilty of an assault merely, or 
 of an assault with intent to kill, or of an assault with intent to murder. State 
 V. Phinney, xiii. 384. 
 
 106. The accused is entitled to a verdict upon each and every substantive 
 charge in the indictment ; and it is the duty of the Court to require the jury 
 to respond distinctly to the several counts contained therein. Stale v. Phin- 
 ney, xiii. 384. 
 
 107. When there are several counts, and the jury find the defendant guilty 
 on one count, and are silent as to the rest, the legal effect of the verdict is an 
 acquittal as to the others. State v. Phinney, xiii. 384. 
 
 108. Defects in some of the counts of an indictment will not affect the 
 validity of the remainder. Slate v. Hadloch, xiiii. 282. 
 
 INDORSEE. 
 
 See Bills, &o., 9, 73, 74, 76, 79, 81, 84, 86, 88, 90, 127. 
 Checks, 1, 2, 5. Writs, 6 — 8. 
 
 INFANT. 
 
 1. A suit by husband and wife, to recover land, which she had conveyed 
 when an mfant, is a disaffirmance of the conveyance. Chadhourne v Back- 
 Kff, XXX. 354. Webh v. Hall, xxxv. 336. 
 
 2. A deed, executed jointly by husband and wife, is not void as to her 
 though done during her minority, but only voidable. Wehh v. Hall xxxy! 
 336. ' 
 
 3. An infant promisee of a negotiable note may transfer the same by in- 
 dorsement; and the act of transfer is voidable only by himself, his heir or 
 personal representative. Hardy v. Waters, xxxviii. 450. ' 
 
 4. And such infant promisee, though under guardianship, may authorize, 
 by parol, another infant to transfer such note by indorsement for him • and 
 t^he^ transfer, so made, is valid until avoided. Hardy v. Waters, xxiTiii. 
 
 Jk\ 'il"°'' '^^° ^°l™*,^!"i^y abandons his father's house without the fault 
 of the latter, carries with him no credit on his father's account, not even for 
 necessaries. Weeks v. Merrow, XL. 151. 
 
 6. Partial payments, made by one of full age, upon a runninff account 
 commencing before, and terminating after, the debtor's majority Ire to bl 
 
 repl"ir?f'amm'lwt''* *'P'^^°' ^'^°' '""^ ™^'^"^1^' ^^^^^^^^ ^r the 
 repair ot a miU, which a minor was operating, and continued to operate after 
 
312 INJUNCTION. 
 
 he became of age, is not a contract for real' estate within the Act of 1845, 
 c. 166. French v. Moulton, xliii. 370. 
 
 INJUNCTION. 
 
 1. Where one claimed to exercise a right granted by an Act of the Legis- 
 lature, clearly unconstitutional, an injunction will not be granted in his favor ; 
 but, if nothing appeared prima facie, against its constitutionality, an injunc- 
 tion will not be denied on that ground. Moor v. Veazie, xxxi. 360. 
 
 2. An injunction may issue where there has been a long continued and 
 uninterrupted possession and enjojonent of a right, without a trial at law. 
 Moor V. Veazie, xxxi. 360. 
 
 3. So, where a State has constitutionally granted a right, and the grant is 
 made upon conditions which have been complied with. The only reason, 
 under such circumstances, for refusing an injunction, would be the unconstitu- 
 tionality of the grant. Moor v. Veazie, xxxi. 360. 
 
 4. On a question between owners of a water privilege, as to the alleged 
 use by one of them of a larger share than he is entitled to, an injunction will 
 not be issued, unless the right has been established by law, or been long 
 enjoyed without interruption, or there exists an imperious necessity for it. 
 Jordan v. Woodward, xxxviii. 423. Morse v. M. W. P. & M. Co., xiil. 
 119. 
 
 5. Where a mortgagee proposes to sell and convey the mortgaged property, 
 " to the full extent of the powers derived to or by him, and by virtue of said 
 deed, and not otherwise ;" an injunction will not be granted to restrain the 
 mortgagee. T. & G. B. B. Go. v. Myers, xli. 109. 
 
 6. If it shall appear to the Court, when an injunction is asked, that other 
 parties are interested in the result, the Court itself may state the objection 
 and refuse to make a decree ; or, if a decree be made, it may be reversed, for 
 this defect, on a rehearing or on an appeal ; or, if it be not Reversed, it will 
 bind none but the parties to the suit and those claiming under them. Mom 
 V. M. W. P. S M. Go., XLii. 119. 
 
 See CoNsiiTTTTioNAi, Law, 32, 33. 
 Eqttitt, 13, 48. 
 
 INJURY TO ANOTHER'S PROPERTY. 
 
 1 . In protecting his own property, every person is bound to use ordinary 
 care not to injure the property of others. Noyes v. Shepherd, xxx. 173. 
 
 2. Imminent danger from fire or flood cannot exempt a person from the 
 use of ordinary care to prevent unnecessary injury to property of others. 
 Noyes v. Shepherd, xxx. 173. 
 
 3. Ordinary care, under such circumstances, might differ from that degree 
 of caution and prudence, which would be required when no immediate danger 
 was impending. Noyes v. Shepherd, xxx. 173. 
 
INSANE PERSONS. 313 
 
 4 In attempting to rescue his own property from suet imminent danger, 
 if one shall injure another's property, the absence of all malicious or evil 
 design and of all such gross carelessness as would authorize an inference ot 
 bad intention, will not protect him from liability. Noyes v. Shepherd, xxx. 
 173. 
 
 5. If the party, whose rights or property have been injured, has contributed, 
 by the want of ordinary care, to occasion the injury, he will not be entitled 
 to damages resulting from it. Noyes v. Shepherd, xxx. 173. 
 
 INNKEEPER. 
 See Bailment, 8, 9. Lien. 
 
 INNHOLDERS, RETAILERS, AND COMMON VICTUALERS. 
 See LiQuoES. 
 
 INSANE PERSONS. 
 
 1. By the Act of 1847, c. 33, the selectmen are empowered to adjudi- 
 cate upon the question of insanity, when applied to for a warrant to send a 
 person to the Insane Hospital for that cause, and also upon the residence of 
 such person. And they are also required to keep a record of their doings in 
 such cases, and to furnish copies of the same to any person, &c. Eastfort v. 
 East Machias, xxxv. 402. 
 
 2. In a suit brought by the town, adjudged by the selectmen to be the 
 residence of such insane person, to recover expenses incurred at the Hospital, 
 an attested copy of such reqord is admissible. Easfport v. East Machias, 
 XXXV. 402. Eastport v. Belfast, XL. 262. 
 
 3. The Act of 1847, c. 33, for the government of the Insane Hospital, au- 
 thorizes two justices of the peace, quorum unus, to decide upon questions of 
 insanity, when the selectmen, upon a written complaint, shall have refused or 
 neglected so to do. Insane Sospital v. Belgrade, xxxt. 497. 
 
 4. The justices' jurisdiction is to be settled, before the justices have power 
 to proceed ; and their adjudication upon their jurisdiction is conclusive, so far 
 as relates to the person alleged to be insane. Insane Hospital v. Belgrade, 
 XXXV. 497. 
 
 5. In a suit by the Hospital, to recover the expenses of a person committed 
 as insane by such justices, their jurisdiction is sufficiently established, by their 
 record's declaring that the selectmen had neglected, &c., after a " due appli- 
 cation in writing, &c. Insane Hospital v. Belgrade, xxxv. 497. 
 
 6. It is not necessary to show that the defendants had notice of the pro- 
 ceedings before the justices. Insane Hospital v. Belgrade, xxxt. 497. 
 
 40 
 
314 INSOLVENT ESTATES. 
 
 7. A complaint in writing, made by the wife of a person alleged to be 
 insane, is sufficient; she being a. " relative" vnthia the intendment of the 
 statute. Insane Hospital v. Belgrade, xxxv. 497. 
 
 8. A judgment of the selectmen, adjudicating upon the insanity of a person, 
 cannot be impeached by parol evidence. If erroneous, it may be reversed. 
 Uastport V. Belfast, xl. 262. 
 
 See Etidence, 221 — 226. 
 Heiss, 13. 
 Patjpek, 31, 47, 73. 
 
 INSANE HOSPITAL. 
 See Insane Peksons. 
 
 INSANITY. 
 See Evidence, 221 — 226. Heiks, 13. Paupee, 31. Pkesumption, 8, 9. 
 
 INSOLVENT ESTATES, 
 
 1. Where a claim, founded upon a judgment unlavrfully obtained, against 
 an insolvent estate, has been allowed by the commissioners of insolvency, 
 and their report has been accepted, a stranger grantee of the deceased may 
 impeach, by plea and proof, such report and acceptance. Caswell v. Caswell, 
 xxTiii. 232. 
 
 2. When the grantee in a warranty deed, who has given his grantor a bond 
 covenanting to remove a mortgage thereon, has deceased, and his estate has 
 been rendered insolvent, all the claims between the estate and the obligee in 
 the bond must be settled before the commissioners of insolvency ; and the 
 covenants of warranty in the deed will be thereby rendered inoperative. 
 Brown v. Staples, xxtiii. 497. 
 
 3. A person entitled to a lien upon a house, building or land, under R. S. 
 of 1841, c. 125, is not entitled to a preference over genera;l creditors, when 
 the debtor has deceased, and his estate has been rendered insolvent within 
 one year from the time of granting administration. Weils, J., dissenting. 
 Severance v. Hammatt, xxviil. 611. 
 
 4. The treasurer of a corporation, having obtained permission to borrow 
 funds in his hands, upon giving his note secured by a mortgage, took the 
 funds, gave his note, but did not execute the mortgage. He died insolvent ; 
 and the corporation presented his note to the commissioners, with the usual 
 oath : — Held, that the corporation would not thereby be precluded from 
 abandoning the note, and claiming upon the account, as due from the treasurer 
 
INSPECTORS. 315 
 
 in his official capacity ; and, in the action for money had and received, the 
 plaintiffs might add a count upon the original account. BlueMll Academy 
 V. mUs, XXXII. 260. 
 
 5. After the death, and insolvency of the estate, of the payee of a note, 
 given for land conveyed by a warranty deed, and the title to the land had 
 partially failed, the maker of the note, in a suit against him by the adminis- 
 trator, is entitled, under the insolvency lavs^s, to set off the breach of cove- 
 nant against the note, although his claim may not have been filed before the 
 commissioners. Morrison v. Jewell, xxxiv. 146. 
 
 6. An appeal may be taken by a claimant, from the decision of commis- 
 sioners of insolvency, if the appeal be claimed and notice of it given in writ- 
 ing, at the probate office, within twenty days after the return of the commis- 
 sioners, and his action be commenced within three months from such return. 
 Pattee v. Lowe, xxxv. 121. Fattee v. Lowe, xxxvi. 138. 
 
 7. There is no prescribed form in which such notice is to be given ; and' 
 it is not rendered invalid by being addressed only to the register of probate. 
 Fattee v. Lowe, xxxv. 121. 
 
 8. Proofs of waste and mal-administration are not competent to sustain an 
 action under either of the exceptions, mentioned in R. S. of 1841, c. 109, 
 § 28. Fattee v. Lowe, xxxvi. 138. 
 
 9. Under Act of 1850, c. 159, an action, commenced before the expiration 
 of a lien, and for the purpose of enforcing it, may be prosecuted to judgment 
 and execution against an administrator or executor, notwithstanding the 
 death and insolvency of the debtor. Fratt v. Seavey, xil. 370. 
 
 10. So also, in case of a defendant under guardianship by reason of insanity, 
 whose estate has been duly rendered insolvent. Fratt v. Seavey, xli. 370. 
 
 11. Any defect in the return of commissioners may be c\ired by an amend- 
 ment according to the facts ; but, if one of the commissioners was not notified 
 nor was present, the report should be re-committed. Crocker v. Crocker, 
 xiiii. 561. 
 
 See Action-, 65. 
 
 EXECTTTORS, &c., 24 — 26. 
 
 INSPECTORS. 
 
 _ 1. An inspector of fish is bound to become satisfied, that the article 
 inspected is of the quality and condition required by law, and designated by 
 ms brand. Nickerson v. Thompson, xxxiii. 433. 
 
 1, ^'j^l '! ^°^- ^^^PO'isil'Je, as upon a warranty, for the correctness of the 
 brand; but he is responsible for the possession and exercise of skOl and care 
 sufficient for performing the duty required by the statute. McJcerson v' 
 i Aompson, XXXIII. 433. 
 
 3. If an inspector affix his brand to an article, without knowing its condi 
 tion, he IS responsible for all injury occasioned thereby to a person purchasins 
 upon the credit of the brand. Nickersor, v. Thompson, xxxiii. 43^ ^ 
 
 4. In a suit for an unskilful and unfaithful performance of inspection 
 fha it t' Zafr '^^^^^^'r^l the customaxy mode of other insert or 
 that It IS usual for mspectors to take a bond of indemnity against a de- 
 
316 INSURANCE. 
 
 ficiency in the quality or condition of the article branded. Nickerson v, 
 Thompson, xxxiii. 433. 
 
 INSTRUCTIONS TO THE JURY. 
 See Pkactice, 62 — 98. 
 
 INSURANCE. 
 
 I. POLICY. 
 II. LOSSES. 
 in. PLEADINGS AND EVIDENCE. 
 
 I. POLICY. 
 
 (a) Insiteable interest. 
 
 (b) Validity. 
 
 (c) What ■vtii.l defeat. 
 
 (d) Geneeallt. 
 
 (a) Insurable interest. 
 
 1 . One part owner of a vessel has no authority, as such, to procure insur- 
 ance thereon for the other owners. And where several owners claim payment 
 for a loss, where the insurance was thus procured, his authority, or a subse- 
 quent ratification of his acts, must be shown. Blanchard v. Waite, xxviii. 
 51. Sawyer v. Freeman, xxxt. 542. 
 
 2. A feme covert was tenant for life in one-third of a lot of land, and 
 tenant for years of the other two-thirds. Her husband erected a house on 
 the land, and caused it to be insured as his property, by the defendants, for 
 four years. One of the defendants' by-laws provided that the policy should 
 be void, if the assured should sell or alienate the property, in whole or in part, 
 without their consent. During the life of the policy, the plaintiff and his 
 wife conveyed to the reversioner her life estate, on condition that the grantee 
 should pay her a fixed sum annually, during her life. The plaintiff, at the 
 same time, conveyed to said reversioner all his interest in the other two-thirds, 
 and took back a mortgage upon the whole estate to secure the payment of 
 several sums in yearly installments. The mortgager entered into possession. 
 The house was afterwards destroyed by fire, before any of the abovementioned 
 sums had become payable: — Seld, that the plaintiff, at the date of the 
 policy, had an insurable interest in the house ; that by said conveyances, the 
 house became a part of the realty ; and that said conveyances constituted 
 such an alienation as defeated the policy. Abbott v. Mut. Fire Ins. Co., xxx. 
 414. 
 
 3. One who charters a vessel is not thereby authorized to insure for the 
 owner. Sawyer v. Freeman, xxxT. 542. 
 
INSURANCE. 317 
 
 4. After outfits of a vessel for a fishing voyage have gone into the entire 
 possession of the buyer, the seller has no insurable interest therein, although 
 a lien upon them for his security was agreed between them. Folsom v. 
 Mer. Mut. Mar. Ins. Co., xxxviii. 414. 
 
 (b) Validity. 
 
 5. A contract of insurance is completed, when there is an assent to the 
 terms of it, by the parties, upon a valuable consideration. Neither the giv- 
 ing of the premium note, nor the reception of the policy, are prerequisites. 
 Blanchard v. Waite, xxviii. 51. 
 
 6. Where a mutual fire insurance company were entitled to a lien on all 
 property insured by them, and where one condition of the insurance was, that 
 if the representation made by the applicant for insurance was materially false, 
 the policy should be void ; and, where the insured, in his application, stated 
 that he was the owner of the building insured, when he had only a bond for 
 a deed of it, upon the performance of certain conditions, which have never 
 been performed : — Seld, that the policy was not obligatory upon the com- 
 pany. Brown V. Williams, xxviii. 252. Pinlcham v. Morang, xi. 587. 
 Battles V. York Go. M. F. Ins. Co., xxi. 208. 
 
 7. Where, by its charter, a company is prohibited to insure property to an 
 amount exceeding two-thirds of its value, and they voluntarily insure to a 
 greater amount, without any fraud or misrepresentation on the part of the 
 insured, the policy is not thereby annulled. Williams v. N. E. M. F. Ins. ' 
 Co., XXXI. 219. 
 
 8. A vote by a mutual insurance company that, if the assessments upon its 
 premium notes should not be punctually paid, the policy should be suspended, 
 is Of no validity, unless assented to by the insured. N. E. M. F. Ins. Co. 
 V. Butler, XXXIV. 451. 
 
 9. No by-law of an insurance company can enlarge its corporate powers. 
 Andrews v. Union M. F. Ins. Co., xxxvii. 256. 
 
 10. Where the charter only authorized insurance against fire, a by-law 
 referred to in the policy, recognizing damages by lightning as one of the risks 
 assumed, imposes no obligation upon the company to pay for losses other than 
 by fire. Andrews v. Union M. F. Ins. Co., xxxvii. 256. 
 
 11. A policy will not be invalid, although the commencement and termina- 
 tion of the risk are not distinctly stated, if the intention of the parties can be 
 gathered from its provisions. And any obscurity in its meaning may be re- 
 moved by reference to the situation of the parties. Folsom v. Mer. Mut. 
 Mar. Ins. Co., xxxviii. 414. 
 
 12. A warranty by the assured, in relation to the existence of a particular 
 fact, must be strictly true, or the policy wUl be void; and that, too, whether 
 material or not. BaUles v. York Co. Mut. Fire Ins. Co., xli. 208. 
 
 13. When a policy has been executed, and notice thereof given to the 
 assured. Its actual delivery is not necessary to complete the contract. Braa- 
 don V. Applelon Mut. Fire Ins. Co., xlii. 259. 
 
 See INSTJKA.NCE, 79. 
 
318 rNSUKANCE. 
 
 (c) What will defeat. 
 
 14. Where one condition in a policy was, tliat in case of loss, the assur- 
 ed, if required, shall submit to an examination under oath, and answer all 
 questions relating -to such loss, or to their claim therefor, and subscribe the 
 same ; and where such examination was once made and completed, the assur- 
 ed cannot be required to submit to a further examination under oath, although 
 he may have agreed to. Moore v. Protection Ins. Co., xxix. 97. 
 
 15. Where the policy provides, that it shall be void, if the risk shall be 
 increased by any means whatsoever within the control of the assured; or 
 if such premises, with the assent of the assured, shall be occupied in any 
 way so as to render the risk more hazardous than at the time of insuring ; 
 and among the articles denominated hazardous, was cotton in bales ; yet, if 
 the cotton in bales was merely kept for sale as a part of the stock of dry 
 goods, it would not vitiate the policy, unless the jury should find that the 
 keeping of such cotton increased the risk. Moore v. Protection Ins. Go. 
 XXIX. 97. 
 
 16. And where one of tbe conditions protected the insurers against the 
 appropriating, applying or using the store for keeping or storing goods of a 
 hazardous character: — Held, that the keeping of a hazardous article among 
 the other goods was not an infraction of that condition. Moore v. Protection 
 Ins. Co., XXIX. 97. 
 
 17. The charter of an insurance company provided, that if the insured 
 should alienate the property the policy should be void: — Held, that evidence 
 of bankruptcy was an alienation. Adams v. Rockingham M. F. Ins. Co., 
 XXIX. 292. 
 
 18. Also a conveyance by an absolute deed, though the grantor received 
 back an unsealed agreement to re-convey upon -the payment of a specified 
 sum. Adams v. Bockingham, M. F. Ins. Co., xxix. 292. 
 
 19. A violation of a warranty by the insured will defeat the policy. Bich- 
 ards V. Protection Ins. Co., xxx. 273. 
 
 20. Thus, where a policy was taken upon a stock, consisting of not haz- 
 ardous merchandize, and the insured' kept, among other goods, for sale, oil 
 and glass, which, in the "conditions," were denominated " hazardous," the 
 policy was thereby vacated. Weils, J., dissenting. Richards v. Protec- 
 tion Ins. Co., xxx. 273. 
 
 21. To constitute an alienation, it is not necessary that there should he an 
 absolute transfer of the whole or any distinct portion of the property. Such 
 a disposition of it, as that any property has been passed to another, is suf- 
 ficient. Allott V. M. F. Ins. Co. xxx. 414. Vide, Insubance, 29. 
 
 22. Though representations be untrue, yet, if not fraudulently made, and 
 if they are immaterial, and produce no injury to the defendant, they will not 
 vacate the policy. Williams v. N. E. Mut. Fire Ins. Co., xxxi. 219. Battles 
 V. York Co. Mut. Fire Ins. Co., xei. 208. 
 
 23. A vote, by a mutual insurance company, that, if the assessments upon 
 its premium notes should not be punctually paid, the insurance should be 
 suspended, if unassented to, will not impair the force of the policy. N. E. 
 Mut. Fire Ins. Co. v. Butler, xxxiv. 451. 
 
 24. Neither will a neglect or refusal to pay such assessments excuse the 
 insurers from paying the insurance. N. E. Mut. Fire Ins. Co. v. Butler, 
 xxxiT. 451. 
 
INSURANCE. 319 
 
 25 If a policy is to be vacated by a subsequently acquired insurance nn- 
 assented to by the first insurers, yet, if the second policy be void, it wJl not 
 defeat ttforLr one, even though the subsequent insurers may J-e P-d ^h^ 
 amount they insured. PhUhrook v. N. E. Mut. Fire Ins. Co., xxxvii. 137. 
 
 26 ThouKh a by-law of an insurance company provides that any of its 
 poUcies upon property j)rewo«sZ2/ insured shall be void, unless such previous 
 insurance be indorsed on the policy at the time of its bemg issued ; still, such 
 by-law is inoperative, if, in the policy itself, such previous insurance be 
 recognized and approved. PhUbroolc v. N. E. Mut. Fwe Ins. Go., xxxvil. 
 
 137. 
 
 27 Two policies upon property, issued from different companies, but both 
 did not exceed three-fourths in value of the property :—-H-e?d, that the above 
 mentioned by-law would not vacate the last policy, which gave leave to keep 
 insured, in other companies, an additional sum, provided all the sums insured 
 should not exceed in value, three-fourths of the property insured. PHlbrook, 
 V. N. E. Mut. Fire Ins. Go., xxxvil. 137. 
 
 28. Where the policy required the assured to notify the company of any 
 increase to the risk of property insured, or the policy would be void, a neg- 
 lect to give such notice renders the policy absolutely void. And a subsequent 
 assessment for losses upon such policy will not revive it. Gardiner v. Piscata- 
 quis Mut. Fire Ins. Co. xxxviii. 439. 
 
 29. The charter of an insurance company provided " that, when the pro- 
 perty insured shall be alienated, by sale or otherwise, the policy shall there- 
 upon be Yoid -." — Eeld, that a mortgage of the insured property is not an 
 alienation, within the meaning of the Act. Pollard v. Som. Mut. Fire Ins. 
 Co., XMi. 221. 
 
 30. Where a policy of insurance, upon a vessel, provides that the insurers 
 shall not be answerable for any loss which may arise in consequence of 
 seizure for or on account of illicit or prohibited trade, or trade in articles 
 contraband of war, but the judgment of a foreign colonial court shall not be 
 conclusive of those facts ; such judgment is prima facie evidence of the 
 facts, and must be held conclusive in the absence of proof to impeach it. 
 Decrow v. Waldo Mut. Ins. Go. xliii. 460. 
 
 31. An attempt to trade in violation of law is within the provisions of 
 such policy. Decrow v. Waldo Mut. Ins. Go., xliii. 460. 
 
 (d) Generally. 
 
 32. In a contract of insurance upon time, the time is to be reckoned ac- 
 cording to the longitude of the place where the contract was made and is to be 
 performed. Walker v. Protection Ins. Go., xxix. 317. 
 
 33. The description of property insured in the body of the policy, when the 
 rate of premium is thereby affected, operates as a warranty, that all the' pro- 
 perty was of the class described, not only at the time of the taking the policy, 
 but that it shaU continue to be of that description during the continuance of 
 the policy. Richards v. Protection Ins. Go. xxx. 273. 
 
 34. Warranties are a part of a completed contract. Representations are a 
 part of the preliminary proceedings, which propose the making of a contract. 
 
 Williams v. New England M. F. Ins. Co., xxxi. 219. 
 
 35. Representations, in an application for insurance, become warranties, if 
 referred to in the policy, and are expressly made a part of it. Williams v. 
 New England M. F. Ins. Co., xxxi. 219. 
 
320 INSUKANCE. 
 
 36. When, by the terms of the policy, the application is made part of the 
 policy, such application is as much a part of the contract as though it were 
 incorporated into the policy itself. Williams v. New England M. F. Ins. Co., 
 XXXI. 219. Philhrook v. New England M. F. Ins. Co., xxxtii. 137. 
 
 37. It seems, a warranty that there are no stoves in the building insured, 
 is a warranty that stoves are not to be permanently used in it. Williams t. 
 New England M. F. Ins. Go., xxxi. 219. 
 
 38. In the insurance of a dwellinghouse in the process of being finished, a 
 warranty that there are to be no stoves in it, means that no stove is to be 
 habitually kept and used in it. The use of a stove for a few days, for a pur- 
 pose connected with the finishing of the house, is not a violation of such a 
 warranty. Williams v. New England M. F. Ins. Co., xxxi. 219. 
 
 39. The statements made in an application merely for leave to obtain an 
 additional insurance, in another office, are representations and not warranties. 
 Williams v. New England M. F. Ins. Co., xxxi. 219. 
 
 40. A policy, issued by a mutual insurance company, and a premium note, 
 given at the same time, are independent contracts ; and the neglect of one 
 party to perform will not absolve the other party from performance. N. E. 
 Mut. Fire Ins. Co. v. Butler, xxxit. 451. 
 
 41. A vote by such company, that, if its assessments shall not be punctu- 
 ally paid, the insurance should be suspended, is invalid if unassented to ; and 
 wUl not relieve either the insurer or the insured from theirrespective liabilities. 
 N. E. Mut. Fire Ins. Go. v. Butler, xxxiv. 451. 
 
 42. The collection of an assessment, ordered by a company, after a forfeit- 
 ure of the policy by the act of the insured, will not revive the policy. Phil- 
 Irook V. N. E. Mut. Fire Ins. Go., xxxvii. 137. Gardiner v. Piscalaquk 
 Mut. Fire Ins. Co., xxxviii. 439. 
 
 43. In the construction of written policies, it is competent to take into 
 consideration the subject matter, and the obvious scope and design, and even 
 the situation of the parties. Phillrooh v. N. E. Mut. Fire Ins. Go., xxxvii. 
 137. Folsom v. Mer. Mut. Mar. Ins. Go., xxxviii. 414. 
 
 44. When the place from which a voyage is to be made is not stated in 
 the policy, evidence that the vessel was at a certain port when the poUcy was 
 executed, and there received the cargo insured, and sailed thence on the voy- 
 age, determines the risk to commence from that place. Folsom v. Mer. Mut. 
 Mar. Ins. Go., xxxTlii. 414. 
 
 45. In an application, the words " for the benefit of captain and owners,' 
 and in a policy, " on account of whom it may concern," do not necessarily 
 secure insurance, in case of loss, to one having an interest in the property 
 insured. Haynes v. Rowe, XL. 181. 
 
 46. Where the owner, and master who sails a vessel on shares, direct a 
 person to procure an insurance on freight, it may well be presumed that they 
 are alike interested in the policy. Haynes v. Rowe, xt. 181. 
 
 47. And where the owner became bound for the master for supplies, and, by 
 consent of the master, his security was to be the insurance on the freight, 
 such owner is entitled to indemnity from the insurance, although the master 
 never assigned the policy. Haynes v. Rowe, XL. 181. 
 
 48. The insured is bound to make a true and full representation concerning 
 aU matters deemed material to the risk, or which may afiect the amount of 
 premium, if inquired of by the company. Battles v. York Go. Mut. Fifi, 
 Ins. Go., XII. 208. 
 
INSURANCE. 321 
 
 49 Where the by-laws of a company stipulate that the risk upon their 
 policy shall be suspended, if the insured shall neglect for a given time, when 
 personaUy called upon, to pay any assessment duly made, the defendant com- 
 pany cannot be considered as having waived their right to be exempted Irpm 
 liability for the plaintiff's loss, by their subsequent assessment and collection 
 to cover it. Nash v. Union Mut. Ins. Co., XLili. 343. 
 
 50. A demand, made by one having a recept in full from the proper author- 
 ity, in discharge of the liability, is as' much a personal demand as though 
 made by the one who signed the receipt. Nash v. Union Mut. Ins. Co., 
 XLlii. 343. 
 
 II. LOSSES. 
 
 51. An actual total loss is a destruction of the property insured, so that 
 nothing valuable would remain upon abandonment. In such case, no aban- 
 donment is necessary. Walker v. Protection Ins. Co., xxix. 317. 
 
 52. A constructive total loss is where part of the property survives the 
 peril, without a total destruction of the thing insured, or where rights or 
 claims remain to the insured as owner. In such case, abandonment is neces- 
 sary. Walher v. Protection Ins. Co., xxix. 317. 
 
 53. Where, by reason of winds and waves, a vessel upon the high seas has 
 become a wreck, incapable of being brought into port, she is considered an 
 actual total loss. Walker v. Protection Ins. Co., xxix. 317. 
 
 54. Under a marine policy, if the disaster was such as to render a sale by 
 the master necessary, it constituted a constructive total loss. Fuller v. Ken- 
 nebec Mut. Ins. Co., xxxi. 325. 
 
 55. If the sale by the master was necessary, and warranted by law, it 
 would constitute a constructive total loss, even without an abandonment. 
 Fuller V. Kennebec Mut. Ins. Co., xxxi. 325. 
 
 56. A formal offer to abandon, made after such sale, cannot impair the 
 right of sale which the master previously had. Fuller v. Kennebec Mut. Ins. 
 Co., XXXI. 325. 
 
 57. The right to sell, as well as the right to abandon, is to be determined 
 by the state of facts existing at the time. In either case, the rights of the 
 parties become vested, when the sale or abandonment is properly made. 
 Fuller V. Kennebec Mut. Ins. Co., xxxi. 325. 
 
 58. Though, immediately after the sale, the vessel was repaired by the 
 purchaser, at the port of disaster, that fact does, not prove the sale to have 
 been unnecessary. Fuller v. Kennebec Mut. Ins. Co., xxxi. 325. 
 
 59. The right to abandon is not necessarily lost by an unwarranted and 
 therefore ineffectual sale by the master. Fuller v. Kennebec Mut. Ins. Co., 
 XXXI. 325. 
 
 60. It is not indispensable that a plaintiff, in order to recover for a total 
 loss, should furnish an adjustment as of a partial loss. Fuller v. Kennebec 
 Mut. Ins. Co., XXXI. 325. 
 
 61. If any part of a perishable article, shipped, arrives in specie, at its 
 port of destination, or, by the exercise of reasonable care and diligence, can 
 be carried there in that condition, there can be no total loss, although it may 
 be worthless there. Williams v. Kennebec Mut. Ins. Co., xxxi. 455. 
 
 41 
 
322 INSURANCE. 
 
 62. If, by reason of the perils insured against, no part of it Cfin be carried 
 there, in specie, the loss is total. Williams v. Kennebec Mut. Ins. Co., 
 XXXI. 455. 
 
 63. In such case, abandonment is not necessary, though a portion of the 
 article was in such condition as to be sold by the master for a sum certain, at 
 the port of disaster. Williams v. Kennebec Mut. Ins. Co., xxxi. 455. 
 
 64. Where there is such a total loss of the cargo, the insured is entitled to 
 recover, as for a total loss of the freight. Williams v. Kennebec Mut. Ins. 
 Co., XXXI. 455. 
 
 65. If the expense of sending the cargo to the port of destination, by an- 
 other vessel, -will exceed a moiety of the stipulated freight, the insured may 
 abandon, and then recover for a total loss. Williams v. Kennebec Mut. Ins. 
 Co., XXXI. 455. 
 
 66. Whether the master has authority to sell a disabled vessel, is to be de- 
 termined by the circumstances, at the time and place of sale. Prince v. Ocean 
 Ins. Co., XL. 481. 
 
 67. A survey is presumed to be correct, but is not conclusive. It cannot 
 control the rights of parties, but is important evidence, designed to protect 
 the rights of all concerned. Prince v. Ocean Ins. Co., XL. 481. 
 
 68. In the sale of a vessel injured, by a master, he must show that he pro- 
 ceeded correctly, and from justifiable necessity. Prince v. Ocean Ins. Co., 
 XL. 481. 
 
 69. No qualification to intensify the term necessity, in instructions to the 
 jury, in such case, is necessary. Prince v. Ocean Ins. Co., XL. 481. 
 
 70. A master, owning a part of a vessel thus sold, is justifiable under the 
 same circumstances as if he were not a part owner. Prince v. Ocean Ins. 
 Co., XL. 481. 
 
 71. Where a sale is thus made of a vessel insured, no abandonment is re- 
 quired for the assured to recover for a total loss. Prince v. Ocean Ins. Co., 
 XL. 481. 
 
 III. PLEADINGS AND EVIDENCE. 
 
 72. The affidavit of the assured, made in pursuance of the policy, and his 
 examination before the company's agent, after having been introduced with- 
 out objection, are admissible as to the amount of the loss. Moore v. Pro- 
 tection Ins. Co., XXIX. 97. 
 
 73. It seems, that the opinions of experienced masters of vessels are ad- 
 missible, as to the probable expense of repairing a vraecked vessel, and the 
 mode of making them. Walker v. Protection Ins. Co., xxix. 317. 
 
 74. If one, having an interest in mortgaged property, procure insurance 
 in his own name, with the stipulation that the loss shall be paid to the 
 mortgagee, a suit may be maintained by the mortgagee. Motley v. Manu- 
 facturers' Ins. Co. XXIX. 337. 
 
 75. The bringing of such a suit is a ratification of the procuring of the in- 
 surance for his benefit. Motley v. Manufacturers' Ins. Co., xxix. 337. 
 
 76. An action may be maintained in this State, against an insurance cor- 
 poration, established by the Legislature of another State, if, by its charter, 
 jurisdiction is not expressly limited to its own State. Williams v. New 
 England Mutual Fire Ins. Co., xxix. 465. 
 
INSUEANCE. 323 
 
 77. The description of property in the policy, when the rate of premium 
 is thereby affected, operates as a warranty, and is in the nature of a condi- 
 tion precedent, a performance of which must be shown prior to recovery. 
 Richards v. Protection Ins. Co., xxx. 273. 
 
 78. Where the conditions annexed to a policy divided insurable articles 
 into several classes, some as being more hazardous, and therefore requiring a 
 higher rate of premium than others, parties cannot prove such classification 
 inaccurate. Richards v. Protection Ins. Co. xxx. 273. 
 
 79. A policy, insuring $1700, upon a mill and fixed machinery, and $150, 
 upon movable machinery, proceeded in written words : — "said insured being 
 the lessee of said mill for one year from, &c., and having paid the rent there- 
 for, of, &c., which interest, diminishing, day by day, in proportion to the 
 whole rent for the year, is hereby insured:" — Held, that the policy was a 
 valued one, although, in the printed part of it, there was a provision that 
 the " loss or damage should be estimated according to the true and actual 
 cash value, at the time such loss or damage shall happen :" — 
 
 That the manuscript provision was the agreed basis, upon which to ascertain 
 the true and just value : — and 
 
 That it is not competent for the defendant, (except for the purpose of prov- 
 ing fraud,) to show that the rent, paid by the insured for the mill, was less 
 than the sum stated in the policy. Cushman v. North Western Ins. Co., 
 XXXIV. 487. 
 
 80. No action can be maintained upon a policy where the assured had no 
 interest in the property insured, when the policy was executed or the property 
 was lost. Folsom v. Mer. Mut. Mar. Ins. Co., xxxviii. 414. 
 
 81. If, after the commencement of a voyage, the vessel stops at a neigh- 
 boring port for additional men, under the plea of usage, such an usage must 
 be proved as would show that the parties had reference to it when the insur- 
 ance was obtained. Folsom v. Mer. Mut. Mar. Ins. Co., xxxviii. 414. 
 
 82. Where, by the terms of a policy, it is to be void in case of an increase 
 to the risk, wj.thout notice to the officers of the company, no action can be 
 maintained on such policy, when the risk was increased without notice, 
 although the loss did not happen in consequence of such increased risk. 
 Gardiner v. Piscataquis Mut. Fire Ins. Co., xxxTili. 439. 
 
 83. To maintain an action for an assessment, upon a premium note, a 
 mutual insurance company must show such assessment to have been legally 
 made. Augusta Mut. Fire Ins. Co. v. French, xxxix. 522. 
 
 84. The right of one to recover upon a policy must depend upon his in- 
 terest acquired as a party to the contract. Haynes v. Rowe, XL. 181. 
 
 85. The assignee of a policy, transferred with the assent of the company, 
 may maintain an action, in case of a loss, in the name of the assignor for the 
 amount insured ; and no subsequent act of the assignor can prejudice the 
 assignee's rights. Pollard v. Somerset Mut. Fire Ins. Co., xlii. 221. 
 
 86. The assured having mortgaged his property and assigned his policy, 
 the assignee must bring his action in the name of the assignor, although the 
 assignment was made with the consent of the insurers, unless they have made 
 an express promise to the assignee. Pollard v. Somerset Mut. Fire Ins Co 
 XLII. 221. ■ ■' 
 
324 INTEREST. 
 
 INTEREST. 
 
 1. Interest, on the balance of an account stated, is recoverable from the 
 date of the settlement. Crosby v. Otis, xxxii. 256. 
 
 2. When a note is made " with interest to be paid annually,'' whether 
 payable by installments or not, the interest which may have accrued in any 
 year may be recovered, if sued for before the whole of the principal becomes 
 payable. Bannister v. Roberts, xxxv. 75. 
 
 3. If no suit be commenced for that purpose, until after that time, interest 
 upon the interest, not paid from the time when it should have been paid, can- 
 not be recovered in a suit for the principal and interest due upon the note. 
 Bannister v. Roberts, xxxv. 75. 
 
 4. In making up judgment upon an award, interest on the amount awarded 
 cannot be included. Kendall v. W. P. Co., xxxyi. 19. 
 
 5. Upon money in the hands of an adjudged trustee, interest is taxable 
 against him after demand. Williams v. A. & K. R. R. Co, xxxvi. 201. 
 
 6. Where partial payments, (whether voluntary or otherwise,) have been 
 made on a note, the rule is to compute interest on the principal, from the time 
 when the interest commenced to the first time when a payment was made, 
 which exceeds, either alone or in conjunction with 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 preceding 
 payments, if any, and the remainder forms a new principal, on which compute 
 and subtract the interest as upon the first principal, and proceed in this man- 
 ner to the time of the judgment. Leonard v. Wildes, xxxvi. 265. 
 
 7. Upon a sum acknowledged to be due at a time specified, between the 
 cestui que trust and the trustee, interest may legally be allowed. Miller v. 
 Whittier, xxxvi. 577. 
 
 8. On a bill in equity to redeem land mortgaged, the master's report shew 
 the debt secured to be a note, dated Aug. 1838, payable with interest semi- 
 annually, upon which a payment of $190 was made April, 1845. In Feb., 
 1848, the parties were together, when they computed and compounded the 
 interest semi-annually, from the date of the note to that time, for which sura 
 the mortgager gave his note, which the mortgagee collected, the $190 having 
 been wholly unnoticed. The mortgager also made two other payments on the 
 note, in Jan., 1851, and Jan., 1852, of $50 each. 
 
 The master computed and compounded the interest semi-annually from the 
 date of the note to April, 1845, and deducted the $190 from the amount. 
 The balance was made a new principal, upon which the interest was com- 
 pounded semi-annually until Feb. 1848. Upon that balance, simple interest 
 was computed to the payment in Jan., 1851, which overpaid the note by 
 $21,26. Upon that sum, simple interest to Jan., 1852, when the second 
 payment of $50 increased the overpayment to $72,55 ; upon which sum 
 simple interest was computed to the time of the decree: — Held, tha-t by 
 giving the note of Feb., 1848, the mortgager agreed to pay interest reckoned 
 in that mode ; and that the decree did justice to both parties, without violat- 
 ing the statutes of usury. Farwell v. Sturdivant, xxxvii. 308. 
 
 9. Interest on the debt of a judgment creditor can be computed only to the 
 time when the land was taken, in making the levy. Brown v. Lunt, xxxvii. 
 423. 
 
JOINT STOCK ASSOCIATIONS. 325 
 
 10. Upon proceedings in equity to redeem a mortgage to secure notes on 
 annual interest, in estimating tlie amount due compound interest cannot be 
 reckoned. Hathaway, J., dissenting. Eittredge v. McLaughhn, xxxviii. 
 513. . 
 
 11 In an action against a to^vn for an injury, caused by a defective high- 
 way, no interest can be added by the jury to the sum found as damages. 
 Sargent T. Hampden, xxxviii. 581. 
 
 12 An administrator, who, under license, sells his intestate's real estate, 
 and uses the avaUs thereof in his business, is chargeable with lawful interest 
 thereon, while using it. Paine v. Faulk, xxxix. 15. 
 
 13. The defendant agreed to purchase lumber at a certain price per M., 
 and pay the freight. When it was delivered, he refused to pay the freight, 
 and plaintiff told him he must pay $40 per M., unless he paid the freight : — 
 Eeld, that the defendant, by his refusal, repudiated the contract, and by keep- 
 ing the lumber he was chargeable at the price last fixed ; but with interest 
 only from the date of the writ. Patten v. Hood, XL. 457. 
 
 14. It seems, that the true principle, upon which to base the allowance of 
 interest in the absence of express stipulation, is to charge it upon the party 
 who is in fault. Hall v. Huckins, xli. 574. 
 
 INTOXICATING LIQUORS. 
 See LiQTJOKS. 
 
 JOINT STOCK ASSOCIATIONS. 
 
 1. Articles of agreement between members of an unincorporated associa- 
 tion, stipulated that the capital stock should be divided into shares, which 
 should be transferrable ; that trustees should be appointed to manage the af- 
 fairs, in whom all the property should vest in trust. Accordingly, trustees 
 were appointed, who purchased real and personal estate and proceeded to the 
 transaction of business. Shares were transferred from time to time, untU 
 twenty-nine fortieths were held by one person : — Held, that a sale by him of 
 twenty-nine fortieths of all the land and property which belonged to the asso- 
 ciation dissolved it ; and the persons who owned the shares, at the time of 
 the dissolution, were entitled, according to their number of shares, to all the 
 avails of the company, and liable to contribute, in the same proportions, to 
 aU the debts of the company. Smith v. Virgin, xxxiii. 148. ■ 
 
 2. Joint stock associations, though with a common object, and for the pur- 
 pose of dealing exclusively in personal property, and with a community of 
 profit or loss, are not necessarily co-partnerships. Cox v. Bodfish, xxxt. 302. 
 
 3. In a suit against the depositary of such an association, by one of its 
 members, to recover his aliquot part of the joint fund, it is no defence that 
 available debts are yet due to the company. Cox v. Bodfish, xxxv. 302. 
 
 4. An association was formed to operate by trade and labor in a distant 
 state. Its constitution divided the stock into shares of f 500, and provided 
 
326 JOINT TENANTS AND TENANTS IN COMMON. 
 
 that each member, by subscribing to render his personal labor, should be en- 
 titled to another share, but that desertion from the service should forfeit all 
 his interest in the association. C. became a stockholder, but did not sub- 
 scribe for personal services. He, however, authorized W., as his substitute, 
 to labor and vote as representing his share abroad, and W. was permitted to 
 act and vote accordingly, though he had never subscribed for stock. W. 
 afterwards deserted the employment: — Held, that the substitution confened 
 upon W. no share in the stock, and that C's interest in the association was 
 not forfeited by the desertion, although such a forfeiture had been declared by 
 the unanimous vote of the company. Cox v. Bodfish, xxxv. 302. 
 
 JOINT TENANTS AND TENANTS IN COMMON. 
 
 I. CREATION, AND SEVERANCE OF SUCH ESTATES. 
 II. RIGHTS AND LIABILITIES. 
 III. REMEDIES. 
 
 I. CREATION, AND SEVERANCE OF SUCH ESTATES. 
 
 1. Where A. and the wife of B. are co-tenants of land, division deeds 
 made by A. and B. do not destroy the co-tenancy. Trask v. Patterson, 
 XXIX. 499. 
 
 2. The sale of personal property by one tenant in common does not vest 
 the property in the vendee, as against another tenant in common. Wheeler 
 Y. Wheeler, xxxiii. 347. 
 
 3. Of lands held by tenants in common, a conveyance by one of them of a 
 part, by metes and bounds, is inoperative, as against the others. Sautter v. 
 Atwood, xxxiT. 153. 
 
 4. Two persons owned land as tenants in common. One of them conveyed 
 his undivided half to M., taking back a mortgage to secure the purchase 
 money. The other conveyed his undivided half to G. M. and G. divided the 
 land, to M. the north half and to G. the south half, by deeds. G. then con- 
 veyed the south half by metes and bounds, which became vested in the 
 plaintiff, who afterwards took from G. a deed of an undivided half of the 
 whole land. The defendants hold undes the mortgage, which was foreclosed, 
 but have occupied both halves, by their lessees, and have received the rents 
 therefor : — Held, — 
 
 That the title of G., by his division deed, became limited to the south half; 
 and that his subsequent conveyance to the plaintiffs of the undivided half was 
 inoperative : — 
 
 That, as the title of the plaintiff extended only to the south half, he could 
 maintain no process for partition of the whole : — 
 
 And that, in a suit at equity, the defendants could not be coerced to convey 
 to the plaintiff any portion of their interest in the tract ; nor to apply for a 
 partition of it ; nor to account to the plaintiff for any portion of the rents. 
 Sautter v. Atwood, xxxiv. 153. 
 
 5. Mere possession of the common property by one tenant is not evidence 
 of an ouster of his co-tenants. SttmU v. Clifford, xxxtiii. 213. 
 Buchnam, xxxrui. 356. 
 
JOINT TENANTS AND TENANTS IN COMMON. 327 
 
 6. But a notorious claim by one tenant of exclusive right in connection 
 ■with exclusive possession of the common property, is an actual ousler of the 
 other tenants. Small v. Clifford, xxxviii. 213. 
 
 n. EIGHTS AND LIABILITIES. 
 
 7. The conveyance of a tenant in common, attempting to convey by metes 
 and bounds a portion of the common estate, cannot impair or vary the rights 
 of a co-tenant. SouUer v. Porter, xxvii. 405. 
 
 8. Such conveyance will not necessarily be inoperative upon his own rights 
 or the rights of others. The law will give effect to such conveyance, so far 
 as it may do so consistently with the preservation of the entire rights of the 
 co-tenant, and no further. SouUer v. Porter, xxvii. 405. 
 
 9. If the estate so conveyed, or any part of it, shall be assigned, upon 
 partition, to the right of the grantor or his assignee, the conveyance embrac- 
 ing it may operate' and convey the title to the grantee. Sputter v. Porter, 
 XXVII. 405. 
 
 10. It cannot operate, however, contrary to the expressed declarations and 
 intentions of the parties, to convey an estate in common instead of an estate 
 in severalty. Soulier v. Porter, xxvii. 405. 
 
 1 1 . Where trespass has been committed upon land, of which the plaintiff 
 is part owner, his right of action cannot be defeated by a subsequent pay- 
 ment to his co-tenants. Longfellow v. Quiniby, xxix. 196. 
 
 12. Land owned in common by different proprietors, which has been taxed 
 and sold at auction, in solido, for the payment of county taxes, may be re- 
 deemed by any one of the co-tenants. Watkins v. Eaton, xxx. 529. Loomis 
 V. Pingree, xliii. 299. 
 
 13. The purchaser may refuse to receive any part, without the whole, of 
 the amount for which he is entitled to hold the land. Watkins v. Eaton 
 xxx. 529. 
 
 14. When one of the proprietors has redeemed his own part and also the 
 part of another co-tenant, and taken the purchaser's release thereof, a subse- 
 quent tender to the purchaser, by such co-tenant, of his proportion of the 
 amount for which the land had been holden, though made within the time 
 allowed for redeeming, is of no effect. Watkins v. Eaton, xxx. 529. 
 
 _ 15. Such redemption of another's share, by one co-tenant, will transfer to 
 him a lien thereon for a reimbursement, though it wiU give to him no right of 
 action. Watkins v. Eaton, xxx. 529. 
 
 16. Until such reimbursement has been made or tendered to the co-tenant 
 who redeemed, or to the owner holding under him, no action can be main- 
 tamed, by the delinquent co-tenant, against either of them for the recovery of 
 the land. Watkins v. Eaton, xxx. 529. 
 
 17. If after the time of redemption had expired, the auction purchaser 
 should sell and convey the land to one of the co-tenants, the other co-tenants 
 could derive no rights therefrom. Watkins v. Eaton, xxx. 529. 
 
 18. Where one tenant in common has received the rents and profits of the 
 common property he is accountable, in assumpsit, to a co-tenant, for his 
 share. Buck v. Spofford, xxxi. 34. 
 
 19. In such action, it is no defence in whole or in part, that the defendant 
 
328 JOINT TENANTS AND TENANTS IN COMMON. 
 
 has incurred expense in repairs upon the mill, unless such repairs were made 
 pursuant to R. S. of 1841, c. 86. Buck v. Spofford, xxxi. 34. 
 
 20. The law will justify no repair, wherehy to charge one of the part own- 
 ers against his consent, except so far as to make the property " serviceable." 
 Buch V. Spofford, xxxi. 34. 
 
 21. But if, after having pursued the statute procedure, a part owner has 
 made repairs beyond what was necessary to render the property " serviceahle," 
 his lien will be good for such part of them as were necessary for that purpose. 
 Buch V. Spofford, xxxi. 34. 
 
 22. If he has been reimbursed to that extent out of the joint profits, he 
 will be accountable in assumpsit to his co-tenant, for his share of the surplus, 
 if any. Buck v. Spofford, xxxi. 34. 
 
 23. In tenancy in common, each party has a separate and distinct, although 
 an undivided, interest, and possesses the whole of an undivided moiety of the 
 property, and not an undivided moiety of the whole property. Knowlton v. 
 Beed, XXXVIII. 246. 
 
 24. A tenant in common can sell only his undivided right. KnowUon v. 
 Beed, XXXVIII. 246. 
 
 25. One sole seized of a parcel of land, with mill privileges attached, has 
 no power to convey, with such land, the right of flowing lands above, held 
 by him in common with another. Hutchinson v. Chase, xxxix. 508. 
 
 26. When a mill-dam, owned by tenants in common, flows their common 
 lands above, a release by one to the other of the mill sites, and all the privi- 
 leges and appurtenances thereto belonging, will authorize the grantee to 
 continue the flowing of the lands above, and to transmit that right to his 
 grantees without being liable in damages. JButchinson ,y. Chase, xxxix. 
 508. 
 
 27. The possession of the common property, by one of the tenants, will not 
 prevent his co-tenants from making an efiectual transfer to another, of their 
 rights therein. Bird v. Bird, XL. 398. 
 
 28. The possession of one tenant in common is the possession of another, 
 which each has a right to for himself and all others, against strangers. Loomis 
 V. Pingree, xliii. 299. 
 
 ni. REMEDIES. 
 
 29. If, in tort, the plaintiff be but a tenant in common with others, of the 
 property taken or injured, the objection is available only in abatement, or by 
 an apportionment of damage. Molmes v. Sprowl, xxxi. 73. 
 
 30. One co-tenant may recover against another, by action of trespass, 
 treble damages for strip and waste committed by him during the pendency of 
 a petition for partition, though the defendant be petitioner. Maxwell v. Max- 
 well, XXXI. 184. 
 
 31. In such action, as well as in assumpsit, if the whole of an averment 
 might be stricken out, and yet leave sufficient allegations upon which to 
 support an action, such averment need not be proved. Maxwell v. Maxwell, 
 XXXI. 184. 
 
 32. The declaration, in such suit, need not name the other co-tenants. 
 In suits against strangers to the common property, the names must be stated, 
 if known. Maxivell v. Maxwell, xxxi. 184. 
 
TODGMENT. 329 
 
 33. A tenant in common with others, of a meeting-house, may maintain 
 trespass for injuring one of the pews, against a person having no title either 
 in the pew or the house. Murray v. CargilU xxxii. 517. 
 
 34. Tenants in common may join or sever in personal actions for injuries 
 to their land. Palmer v. Dougherty, xxxiii. 502. 
 
 35. When there are unadjusted claims between several part owners of a 
 vessel, growing out of the employment of the joint property, no action lies 
 by one against the other for contribution toward any particular expense, 
 or for a share of any particular item of profit. Hardy v. S'protol, xxxiil. 
 508. 
 
 36. No action by one part owner against another, relative to such'expenses 
 or profits, can be sustained, except such as shall adjust all their respective 
 claims together. If no other mode can be agreed upon, the remedy is by 
 action of account. Hardy v. Sprowl, xxxiii. 508. 
 
 37. In trespass for injury to personal property, owned by the plaintifis 
 jointly with other co-tenants, damages may be recovered in proportion to the 
 plaintiff's ownership. Jones v. Lowell, xxxv. 538. 
 
 38. AIL the co-tenants must join in a complaint for flowing land, owned by 
 tenants in common, by means of a mUl-dam. Tucker v. Campbell, xxxTi. 
 346. 
 
 39. In an action by one tenant in common against another, for selling 
 stumpage from the common land without authority, it is no defence that the 
 plaintiff, previously, had wrongfujly sold stumpage from the same land. 
 Dwinell v. Larrabee, xxxviri. 464. 
 
 40. One of the owners of chattels, held by tenants in common, may main- 
 tain an action, for the value of his property, against any one who appropriates 
 the whole to the exclusion of his possession in common. Boohier v. Boohier, 
 xxxix. 406. 
 
 41. Assumpsit, by one tenant in common, against his co-tenant, for use 
 and occupation of the common property, wUl not lie on an implied promise. 
 Oowen V. Shaw, xl. 56. Moses v. Ross, xli. 360. 
 
 42. But, when a tenant in common has received more than his share of the 
 rents of the common property in money, or as bailiff of the other, assumpsit 
 will lie. Gowen v. Shaw, xt. 56. Moses v. Moss, xxi. 360. 
 
 43. In a suit by one co-tenant against another, based on the Act of 
 1848, c. 61, it must be alleged and proved that the joint estate has yielded 
 " rents, profits or income," and that the defendant has taken the common 
 property " without the consent of his co-tenant. Moses v. Boss, XLI. 360. 
 
 JUDGMENT. 
 
 I. RENDITION AND ENTERING OF JUDGMENT. 
 
 II. ARREST OF. 
 in. EFFECT OF. 
 IV. ACTIONS ON, AND SATISFACTION OF. 
 
 V. JUDGMENTS OF COURTS OF OTHER STATES. 
 
 42 
 
330 JUDGMENT. 
 
 I. RENDITION AND ENTERING OF JUDGMENT. 
 
 1 . No valid judgment can be rendered on the report of referees under a 
 statute submission, except by consent, -witliout allowing to the aggrieved party 
 the time prescribed by statute, in which to present exceptions. CrooJcer v. 
 Buck, XXI. 355. 
 
 See Ekeok. 
 
 Jtjstice of the Peace, 25. 
 
 n. ARREST OF JUDGMENT. 
 
 2. On motion in arrest of judgment for selling spirituous liquor by retail, 
 the rights of an importer to sell foreign liquor cannot be called in aid of the 
 defendant. State v. Gurney, xxxtii. 156. 
 
 3. Judgment will not be arrested because some of the counts are bad for 
 duplicity. State v. Burlce, xxxviii. 574. 
 
 4. A motion in arrest of judgment can only be entertained for matters 
 apparent on inspection of the record. Where proof is required to support 
 such motion, it cannot prevail. State v. Bangor, xxxTiii. 592. 
 
 5. The 26th rule of the Court, promulgated in 1820, in regard to the time 
 for filing motions in arrest of judgment, had reference only to civil cases. 
 State V. Soils, xxxix. 212. State v. McAlvon, XL. 133. 
 
 6. The principle upon which a judgment on penal statutes in behalf of 
 the State is arrested, is that all which has been alleged in the complaint or 
 indictment may be true, and yet the person convicted may not have com- 
 mitted any offence. State v. Holhs, xxxix. 212. 
 
 in. EFFECT OF A JUDGMENT. 
 
 (a) As TO PAETIE3. 
 
 (b) Generally. 
 
 (a) As to 'parties. 
 
 7. A judgment is evidence of the amount of indebtedness between the 
 parties to it ; but is not binding as to third persons, not parties or privies 
 thereto. Sargent v. Salmond, xxvii. 539. 
 
 8. The adjudication of commissioners, to determine whether an execution 
 should or should not run against the body of a debtor, &c., has the character 
 of a judgment, and cannot be set aside on motion. How v. Newhegin, 
 xxxiv. 15. 
 
 9. One, against whom judgments have been obtained, can maintain no 
 action on the case against the parties who obtained them, the attorney who 
 .prosecuted and the officer who served the writ, for fraudulently conspiring 
 together to injure and defraud him in those proceedings, while the judgments 
 remain unreversed. Dunlap v. Glidden, xxxi. 435. Smith v. Albott, XL. 
 442. 
 
 10. A judgment cannot be impeached directly, indirectly or collaterally. 
 While it remains unreversed, it is conclusive upon the parties in every respect. 
 Pease v. Whitten, xxxi. 117. Footman v. Stetson, xxxii. 17. Wood- 
 man V. Smith, XXXVII. 21. Smith v. Abhott, xx. 442. 
 
JUDGMENT. 331 
 
 11. Judgment in a suit, wherein a set-off account had been filed, is con- 
 clusive upon that account, unless some of its items had been withdrawn, 
 which can be done in writing by the parties. Smith v. Berry, xxxyii. 298. 
 
 12. A judgment against a corporation is conclusive upon parties and privies. 
 Came v. Brigham, xxxix. 35. 
 
 13. Judgments are conclusive upon the parties to them, in reference only 
 to such matters as were directly in issue in the case. Lord v. Ghadbourne, 
 XIII. 429. 
 
 14. When the proceedings are in rem, the decree of the Court is an ad- 
 judication upon the status of some particular subject, and is binding upon all 
 the parties. Lord v. Ghadbourne, xlii. 429. 
 
 15. Judgments are binding upon aU parties and privies thereto, untU re- 
 versed. Cole V. Butler, xliii. 401. 
 
 See Akbitkation, 67, 71, 72. 
 
 (b) Generally. 
 
 16. The contract, upon which a judgment at law has been recovered, is 
 merged and extinguished by the judgment, which constitutes a new debt, hav- 
 ing its first existence at the time of the recovery. Solbrook v. Foss, xxvii. 
 441. 
 
 17. It is generally true, that an erroneous judgment is to be avoided only 
 by a writ of error ; but this rule does not apply to cases where a party has a 
 right to impeach a judgment illegally rendered, and yet has no right to re- 
 verse it. Caswell v. Caswell, xxviii. 232. 
 
 18. In equity, to avoid a conveyance by a deceased debtor, the grantee may 
 impeach the judgnaent, which is the foundation of the suit, if such judgment 
 be unlawfully obtained ; and this may be done by plea and proof. Caswell v. 
 Caswell, xxTiii. 232. 
 
 19. Where an action was intended to be carried by demurrer to the S. J. 
 Court, and an erroneous judgment was entered in the District Court, for the 
 plaintifi', by consent, when, upon the pleadings, which by agreement might 
 be waived, the defendant was entitled to judgment ; and the appeal was en- 
 tered and continued, and then dismissed for want of a legal recognizance, and 
 judgment was rendered in the District Court for the plaintiff, without any ap- 
 pearance for the defendant, or any notice to him, or any change in the plead- 
 ings : — Eeld, that such judgment might be impeached by one injuriously af- 
 fected thereby, not a party or privy thereto. Caswell v. Caswell, xxviii. 
 232, 
 
 20 A judgment upon a report of referees, who have adjudicated matters 
 legally submitted to them, is equaUy valid as when founded upon a verdict 
 Pease v. Whitfen, xxxi. 117. 
 
 21 A judgment is a debt of a higher order than was the contract upon 
 which It IS founded. Pihe-y. McDonald, xxxii. 418. Uran v. Houdlette, 
 
 22. A judgment against a trustee wiU not bar an action against him by the 
 prmcipal, unless a demand had been made within thirty days from the iude- 
 ment, by an ofiicer holding the execution. Bachelder y. Merriman, xxxiv. 
 
 23. Neither will such judgment operate as such bar, unless the trustee 
 
332 JUDGMENT. 
 
 had delivered or accounted for the goods, effects and credits upon the judg- 
 ment. Bachelder v. Merriman, xxxiv. 69. 
 
 24. Judgments of Courts, having competent jurisdiction, are presumed in 
 law to have been rendered upon the appropriate preliminary proceedings. 
 Eldridge v. Preble, xxxiv. 148. 
 
 25. A judgment is a sufficient foundation for a levy, although t)iere may 
 have been some error in the date of the writ, the service thereon, and the 
 term of the Court at which the action should have been entered. Woodman 
 V. Smith, xxxYii. 21. 
 
 26. Upon the overruling of a demurrer to a complaint or indictment for a 
 misdemeanor, the judgment against the defendant is not a respondeas ouster, 
 but is peremptory. State v. Merrill, xxxvii. 329. 
 
 27. A judgment in a writ of entry for the premises, and possession under 
 it against the person apparently holding title, though he may have conveyed 
 it by an unrecorded deed, but unknown to the levying creditor, is evidence of 
 title against which such grantee can interpose no defence. Spaulding v. 
 Goodspead, xxxix. 564. 
 
 28. Nor can the claimants under such grantee set up any title anterior to 
 the judgment, and which, if pleaded, might have defeated it. Spaulding v. 
 Goodspead, xxxix. 564. 
 
 IV. ACTIONS ON, AND SATISFACTION OP, JUDGMENTS. 
 
 29. Where the judgment of a court of limited and special jurisdiction is 
 sought to be enforced, its organization is open to inquiry, and its jurisdiction 
 must be established by the party seeking to enforce the judgment. Crawford 
 V. Howard, xxx. 422. 
 
 30. In an action upon a judgment, defendant cannot pirove that, prior to 
 its rendition, a part of the claim upon which it was founded had been paid. 
 Bird V. Smith, xxxiT. 63. 
 
 31. So, in an action upon a security given in satisfaction of a judgment. 
 Bird V. Smith, xxxiv. 63. 
 
 32. Until the expiration of twenty years from the recovery of a judgment, 
 there arises, from lapse of time, no degree of presumption that the judgment 
 has been paid. Thayer v. Mowry, xxxvi. 287. 
 
 33. For an agreement by a judgment creditor that he would allow, upon 
 the judgment, the amount which he had received towards the debt, prior 
 to the judgment, such receipt of the amount is a sufficient consideration. 
 Thayer v. Mowry, xxxvi. 287. 
 
 34. In 'a suit upon such judgment, if the receipt of the money and the 
 agreement be proved, the jury may treat the amount received as a payment 
 upon the judgment. Thayer v. Mowry, xxxvi. 287. 
 
 35. In such case, the defendant may introduce evidence of the plaintiff s 
 agreement ; of their dealings previous to the judgment ; and of any facts 
 which could justify the jury in finding that the money had been received by 
 the plaintiff, together with the amount. And such evidence has no tendency 
 to impeach the judgment. Thayer v. Mowry, xxxvi. 287. 
 
 36. After the lapse of twenty years from the rendition of a judgment, the 
 law presumes it to be satisfied. Jackson v. Nason, xxxviii. 85. 
 
JUDGMENT. 333 
 
 37 If that presumption is attempted to be overcome by evidence of the 
 continued insolvency of the judgment debtor and it is proved ha soon afte 
 its recovery he failed in business, no legal inference will arise that his msol 
 vency continued afterwards. Jackson v. Nason, xxxviii. 85. 
 
 38 If the creditor in an execution would revive a judgment, once satished 
 by a levy, it must be legally proved that the levy was invalid. Jackson v. 
 Nason, xxxYiii. 85. 
 
 39 For this purpose, office copies of deeds, purporting to show that the 
 title of the land was not in the judgment debtor, at the time of the levy, are 
 not admissible. Jackson v. Nason, xxxviil. 85. 
 
 40 An action upon a judgment may be maintained, although an aJias exe- 
 cution was subsequently issued thereon, on which the debtor was arrested and 
 committed. Moor v. Towle, xxxviii. 133. 
 
 41 In debt upon the judgment of a justice of the peace, whose commis- 
 sion had expired more than two years before this trial, if the minutes upon 
 the justice's docket are such as to enable the Court to perceive that they 
 would authorize an extended record, they will be sufficient. Grosvenor v. 
 Tarbox, xxxix. 129. 
 
 See Costs, 31. 
 
 V. JUDGMENTS OF COURTS OF OTHER STATES. 
 
 42. If it appears, by the record of a judgment rendered in another State, 
 that the Court had no jurisdiction of the parties, such judgment has no force 
 or validity whatever, here. Middlesex Bank v. Butmah, xxix. 19. Long 
 V. Hammond, XL. 204. 
 
 43. No action can be maintained in this State, upon a judgment recovered 
 in another State, against a defendant, of whose person the Courts of that 
 State had no jurisdiction. McVicker \. Beedy, xxxi. 314. 
 
 44. The ownership of property, situated within a State, does not, of itself, 
 give to the Courts of that State jurisdiction of the owner's person. Jfc Vicker 
 V. Beedy, xxxi. 314. 
 
 45. The fact that a part of such judgment had been collected, under the 
 process of the Court in that State, wUl not aid an action brought upon the 
 judgment here. McVicker v. Beedy, xxxi. 314. 
 
 46. Where a person, residing in this State, obtains a discharge from all 
 his debts, by a Court of Bankruptcy in another government, such discharge 
 can have no eifect upon a contract entered into, in such government. Long 
 V. Hammond, xi. 204. 
 
 47. A judgment rendered in another State, upon a writ served upon a de- 
 fendant personally in that jurisdiction, and in which he appeared and plead- 
 ed to the merits, is entitled to the same faith and credit as if rendered here ; 
 although, at the time of the service of the writ, on which there was no attach- 
 ment, both parties were, and they still are citizens of this State. Cleaves v. 
 Lord, XLiii. 290. 
 
 See Bankkitptct, 19. 
 Foreign Laws. 
 
334 JURISDICTION. 
 
 JURISDICTION. 
 
 1 . To enable the Court to decide an action upon an agreed statement of 
 facts, the statement must appear to have been made in a case legally before 
 the Court. Hatch v. Allen, xxtii. 85. 
 
 2. The parties cannot present a case by agreement, in a manner not author- 
 ized by law. Hatch v. Allen, xxvii. 85. 
 
 3. If the Court, from which an action is appealed, has no jurisdiction of 
 the action, the appellate Court can obtain none by virtue of the appeal. 
 Hatch V. Allen, xxvii. 85. 
 
 4. The title to real estate cannot be considered as brought in question, 
 under R. S. of 1841, c. 116, when it is not put in issue by the pleadings or 
 brief statement, and cannot be affected by the judgment. Hatch v. Allen, 
 XXTII. 85. 
 
 5. Courts of justice can give effect to Legislative enactments, only to the 
 extent to which they may be made to operate by a fair and liberal construc- 
 tion of the language used. It is not their province to supply defective enact- 
 ments, by an attempt to carry out fully the purposes which may be supposed 
 to have occasioned those enactments. Swift v. Luce, xxtii. 285. 
 
 6. By R. S. of 1841, c. 156, § 7, it is an offence, punishable in this State, 
 if a person, to whom property to be by him carried for hire and delivered in 
 another State, shall fraudulently convert the same to his o^vn use, before such 
 delivery, whether the act of conversion be in this State or another. Staie v. 
 Haskell, XXXIII. 127. 
 
 7. When, by a statute, the jurisdiction of an offence is given to a justice 
 of the peace, or a police or municipal court, but is not declared to be exclu- 
 sive, the District Court has concurrent jurisdiction of the same offence. Staie 
 v. Billington, xxxiii. 146. 
 
 8. The Courts of a country or State have no jurisdiction beyond its sove- 
 reignty. Lovejoy v. Albee, xxxiii. 414. 
 
 9. Judgments, rendered by Courts not having jurisdiction, are void. Love- 
 joy T. Albee, XXXIII. 414. 
 
 10. When property of a person is within the State, he not being present, 
 a judgment against him will be effectual only as a judgment in rem. Love- 
 joy V. Albee, xxxiii. 414. 
 
 1 1 . No judgment can be rendered against one as trustee, either at common 
 law, or under our statute, if neither he nor the principal defendant resides 
 within the jurisdiction, and if no tangible property of such defendant has 
 been found here. Lovejoy v. Albee, xxxiii. 414. Smith v. Satan, xxxTI. 
 298. 
 
 12. Jurisdiction cannot be imparted to the Court by the consent of parties. 
 State v. Bonney, xxxit. 223. 
 
 13. There is no presumption in favor of the jurisdiction of a justice of the 
 peace. State v. Hartwell, xxxv. 129. Hersom's case, xxxix. 476. Lane 
 V. Crosby, xlii. 327. Wat. I. Manuf'g Co. v. Goodwin, xliti. 431. 
 
 14. The S. J. Court, at a term held for the transaction of criminal business, 
 has no jurisdiction of processes under the Bastardy Act. Mahoney v. Crow- 
 ley, XXXTI. 486. 
 
JURY. — JUSTICE OF THE PEACE. 335 
 
 15 The jurisdiction of the Court extends over oflfences committed within 
 the territorial limits of the county, whether before or after its incorporation. 
 State V. Jackson, xxxix. 291. 
 
 16. The S. J. Court, by the Act of 1852, c. 241, while sitting as a Law 
 Court, is not a court of original jurisdiction. Baker v. Johnspn, xli. 15. 
 
 17. The Court has no jurisdiction of a mere memorial, alleging that the 
 acts of co-ordinate branches of the government are irregular, unlawful and 
 unconstitutional, and praying judgment of the Court thereupon ; especially 
 when no process has been served upon any one adversely interested, and no 
 department of the government, or officer thereof, has appeared voluntarily and 
 claimed to be heard. Davis, ex parte, xii. 38. 
 
 See Action, 36. 
 
 BANKErPTCT, 20. 
 
 Insane Peesons, 3, 4. 
 
 JURY. 
 
 1 . A juror, belonging to the town, whose books of records were alleged to 
 have been secreted by defendant, was rightfully excluded from the panel on 
 the trial for the offence. State v. Williams, xxx. 484. 
 
 2. A jury has the right to decline the finding of any other than a general 
 verdict. Fuller v. Kennebec Mutual Ins. Co., xxxi. 325. 
 
 3. A person related to another by affinity in the fourth degree, according 
 to the civil law, cannot act as a juror in a suit, to which such other person is 
 a party, except by consent. Hardy v. Sprowl, xxxii. 310. 
 
 4. A juror, whose brother is joined in marriage with a sister of one of the 
 parties, is not disqualified to sit in the trial. Chase v. Jennings, xxxtiii. 
 44. 
 
 5. In all challenges to the jury for cause, the ground of challenge must be 
 distinctly stated and entered upon the record. State v. Knight, xiiii. 11. 
 
 6. The common law practice in England, in relation to triers in a chal- 
 lenge to the jury for favor, has been superseded by satisfactory provisions of 
 statutes under the different forms of government in Massachusetts. State v. 
 Knight, xiiii. 11. 
 
 7. Challenges of jurors are allowed in criminal as in civil causes, and for 
 similar reasons ; and the Court is the only tribunal which the statute has 
 provided for their trial, whether they be principal challenges or challenges to 
 the favor. State v. Knight, xliii. 11. 
 
 JUSTICE OF THE PEACE. 
 
 I. JURISDICTION, 
 n. MINISTERIAL ACTS, 
 m. IN GENERAL. 
 
336 JUSTICE OF THE PEACE. 
 
 I. JURISDICTION. 
 
 (a) In personal matters. 
 
 (b) Where title to real estate is in ouestion. 
 
 (c) In criminal matters. 
 
 (a) In •personal matters. 
 
 1. A justice of the peace has no jurisdiction o^ an action, if he were once 
 married to a sister of the plaintiff, whether, at the time of the suit, she were 
 living or not ; and whether the suit were for his own benefit, or for the benefit 
 of others. Spear v. Robinson, xxix. 531. 
 
 2. There is no presumption in favor of the jurisdiction of a justice of the 
 peace. State v. Hartwell, xxxv. 129. Hersom's case, xxxix. 476. Lane 
 V. Crosby, xlii. 327. Wat. I. Manuf'g Co. v. Goodwin, xiiii. 431. 
 
 3. Whether justices of the peace and quorum, living in another county 
 than that in which they were appointed, may exercise jurisdiction under 
 their commissions, before they have expired, quere. Houghton v. Lyford, 
 XXXIX. 267. 
 
 4. Jurisdiction of magistrates cannot be conferred by consent of parties. 
 It is merely a statute regulation. Call v. Mitchell, xxxix. 465. 
 
 (b) Where title to real estate is in question. 
 
 5. The title to real estate cannot be brought in question, under R. S. of 
 1841, c. 116, §§1 and 3, when it is not put in issue by the pleadings or 
 brief statement, and cannot be affected by the judgment. Hatch v. Allen, 
 XXVII. 85. 
 
 6. In assumpsit to recover compensation for the use of certain real estate, 
 brought before a justice of the peace, if the defendant pleads the general 
 issue, and files a brief statement, in which he denies the plaintiff's title to the 
 premises, and alleges that he occupied under one who had title, such brief 
 statement does not, under the statute, authorize the removal of the action to 
 the District Court, without any trial or judgment by the justice of the peace. 
 Hatch V. Allen, xxvii. 85. 
 
 (c) In criminal matters. 
 
 7. In a mittimus, it is not necessary to copy the complaint, or to state the 
 proofs before the justice. Bicker, pet'r, xxxii. 37. 
 
 8. A magistrate's warrant must show his jurisdiction to issue it. Gwney 
 V. Tufts, xxxvii. 130. Vinton v. Weaver, xli. 430. 
 
 9. A magistrate has no authority to issue a warrant to search a dwelling- 
 house, for intoxicating liquors, alleged to be kept for illegal sale, on the 
 complaint of three persons competent to be witnesses, unless it shall first 
 be shown to him, by the testimony of witnesses reduced to writing and 
 verified by oath, that they have reasonable ground for believing that such 
 liquors are there kept for illegal sale. State v. Staples, xxxvii. 228. 
 
 10. By R. S. of 1841, c. 170, justices of the peace are authorized to 
 punish by fine, not exceeding ten dollars, persons convicted of certain offen- 
 ces, and to try all offences within their jurisdiction, and to sentence those 
 convicted according to law ; but are not authorized to imprison. Hersom s 
 case, XXXIX. 476. 
 
JUSTICE OF THE PEACE. 337 
 
 11. The punishment for a violation of § 2, c. 166, of the Act of 1855, being 
 
 by fine of twenty dollars, and imprisonment of the ofi'ender, puts the offence 
 
 out of the jurisdiction of a justice of the peace, without some express pro- 
 
 ■vision giving them jurisdiction, which the Act does not contain. Hersom's 
 
 >case, XXXIX. 476. 
 
 See Wakkant. 
 
 n. MINISTERIAL ACTS. 
 
 12. A magistrate, in taking a deposition, acts in a ministerial and not in a 
 judicial capacity. Cooper v. Baheman, xxxiii. 376. 
 
 13. If, in the caption, he certify falsely, he is accountable to the party 
 injured. Cooper v. Bakeman, xxxiii. 376. 
 
 14. In the renewal of on execution, a magistrate acts ministerially. Jones 
 V. Elliott, XXXV. 137. 
 
 15. A justice of the peace may renew an execution at any time, within 
 two years from the expiration of his commission, although, at the time of do- 
 ing it, he may be rightfully exercising the duties of an executive officer. Jones 
 
 V. Elliott, ILTilLV. 137. 
 
 16. A justice of the peace, for any act done in his judicial capacity, is not 
 liable in a civil action ; but, if he act corruptly in his ministerial duties, he is 
 liable to the party injured. Tyler v. Alford, xxxviii. 530. 
 
 17. An arrest on an execution, issued upon a judgment lawfully rendered 
 by a magistrate, will not support an action for assault and battery and false 
 imprisonment, against the magistrate, by evidence that he refused to allow an 
 appeal claimed from such judgment, when sufficient sureties were offered and 
 his fees paid. Tyler v. Alford, xxxviii. 530. 
 
 18. A justice of the peace is not authorized by the statute to take deposi- 
 tions in cases where he is, or has been, counsel or attorney. Cutler v. Maker, 
 xii. 594. 
 
 19. But such justice may issue notices to the adverse party, returnable 
 before another magistrate. Cutler v. Maker, xii. 594. 
 
 III. IN GENERAL. 
 
 20. A certified copy by a magistrate, of a record of a judgment rendered 
 by him, is the proper evidence to support an action upon such judgment. 
 Wentworth v. Keazer, xxx. 336. English v. Sprague, xxxiii. 440. 
 
 21. But defendant may prove that what purported to be a certified copy 
 was not authentic. Wentworth v. Keen, xxx. 336. 
 
 22. One who has been a magistrate has no authority to certify copies, 
 after two years from the expiration of his commission. Wentworth v Keazer 
 xxx. 336. ' ' 
 
 23. Under R. S. of 1841, c. 116, § 14, a justice is authorized to grant one 
 continuance, m a suit brought before another justice, either at the return day 
 ot the writ, or on a day to which the cause had been legaUy adjourned. Tyler 
 V. ij6(iij XXXI. 336, 
 
 43 
 
338 LACHES. — LANDING. 
 
 24. A magisfxate's certificate, alleging what facts appear by the record, is 
 not admissible. English v. Sprague, xxxiii. 440. 
 
 25. A second continuance for the same cause, under K. S. of 1841, c. 116, 
 § 14, or a trial of an action after thirty days, by a justice other than the one 
 before whom the writ is made returnable, is illegal ; and the judgment ren- 
 dered thereafter, invalid. Call v. Mitchell, xxxix. 465. 
 
 See Insane Peksons, 3, 4. 
 
 JUSTICE OF THE PEACE DE FACTO. 
 See Deed, 38, 39, 40. 
 
 LACHES. 
 
 No laches are imputable to a party who suffers a default in an action where 
 a defence would be unavailing. Roxhury v. Huston, xxxix. 312. 
 
 See GuAKANTT, 4. 
 
 LANDING. 
 
 1 . A landing, though for the purpose of direct transit, is more than a high- 
 way. The public have no right to use and occupy the soil of an individual 
 adjoining navigable waters, as a public landing and place of deposit for pro- 
 perty in its transit, against the wUl of the owner, although such user has been 
 continued for more than twenty years. State v. Wilson, xxii. 9. 
 
 2. Such user affords no foundation for the presumption of a grant, nor 
 evidence of a dedication. Prescription will give no right to the exclusive 
 occupation of another's land, for such purpose, as it may give the traveler the 
 right to pass over it without the power of halting thereon ; and any such use 
 of it, amounting to an invasion of the rights of the proprietor, would be 
 similar to a trespass upon upland, and the remedy would be the same. State 
 V. Wilson, XXII. 9. 
 
LANDLORD AND TENANT. 339 
 
 LANDLORD AND TENANT. 
 
 I. WHAT CONSTITUTES THE RELATION. 
 
 II. TENANCIES AT SUFFERANCE, AT WILL, AND BY CURTESY. 
 in. RIGHTS AND REMEDIES. 
 
 I. WHAT CONSTITUTES THE RELATION. 
 
 1. Where a person entered upon land by license of one of the owners in 
 common, and erected and occupied a building upon it, he is considered as 
 holding in submission to the title of such owner, until the contrary is proved. 
 Bucknam v. Bucknam, xxx. 494. 
 
 2. Where the grantor of land remains in possession after the conveyance, 
 a legal presumption arises that he is tenant to the grantee. Larrabee v. 
 Lumbert, xxxiv. 79. 
 
 3. That presumption may be repelled by proof. Larrabee v. Lumbert, 
 XXXIV. 79. 
 
 4. After notice to quit, the grantee may elect to treat the grantor, if in 
 possession, as holding by wrong, and not as tenant. Larrabee v. Lumbert, 
 XXXIV. 79. 
 
 5. Where one occupies and improves real estate which is manifestly bene- 
 ficial, and a lease to such occupant for a nominal rent, from the owner, is 
 found on record, in the absence of testimony, it is presumed the occupant 
 holds under the lease. Libbey v. Staples, xxxix. 166. 
 
 n. TENANCIES AT SUFFERANCE, AT WILL, AND BY CURTESY. 
 
 ^ 6. At common law, a holding over by the consent of parties was a renova- 
 tion of the contract. Kendall v. Moore, xxx. 327. 
 
 7. But under R. S. of 1841, c. 91, § 30, c. 95, § 19, and c. 128, § 5, a 
 tenant holding over by consent, after the expiration of the term, is considered 
 a tenant at will only, and is entitled to notice. Kendall v. Moore, xxx. 327. 
 Toung V. Toung, xxxvi. 133. 
 
 8. From the mere continuance of occupation by the lessee, after the expir- 
 ation of a written lease, there arises no legal presumption of a tenancy at wUl. 
 Lithgow V. Moody, xxxv. 214. 
 
 9. A conveyance of the estate by the landlord wiU not impair the right 
 secured by the statute to a tenant at will. Young v. Toung, xxxvi. 133. 
 
 10. An estate at will, under our statute, gives to the tenant rights for a 
 period after notice, of equal validity with those under a written lease for a 
 like period. Toung v. Toung, xxxvi. 133. 
 
 11. If a tenant continues in possession after the expiration of his lease, the 
 onus probandi is upon him to show the acquiescence of the landlord. Cheslev 
 V. Welch, XXXVII. 106. ^ 
 
 12. A tenant holding under a lease for a definite time, by a delay of a lessor 
 to enter after its termination, may acquire the rights of a tenant at will, upon 
 106 P"^^™?*'"'' °^ ^'^^ ^^^^""^'^ acquiescence. Chesley v. Welch xxxvii 
 
340 LANDLOKD AND TENANT. 
 
 13. A seizin by a married woman in her own right, without a seizin in fact, 
 wUl entitle her husband, at her death, to become tenant by curtesy. 
 V. Buchnam, xxxviii. 356. 
 
 III. RIGHTS AND REMEDIES. 
 
 (a) Against each otiiek. 
 
 (b) Emblements. 
 
 (c) Notice to quit, -and detekmination of tenancies. 
 
 (d) Action pok use and occupation. 
 
 (a) Against each other. 
 
 14. The lessors of a farm, adjoining a river, have no right to the drift-wood 
 which the lessee takes from the river, unless it is derived from the terms of 
 the lease. Dyer v. Haley, xxix. 277. 
 
 15. Lessees for a time fixed, who hold over, are not liable for rent longer 
 than for the time of their occupation. Kendall v. Moore, xxx. 327. 
 
 16. In a tenancy at sufierance, of a house and lot, the landlord is charge- 
 able in trespass quare clausum, if he enter by force to the injury of the ten- 
 ant or his family, even after two months verbal notice to quit. Brock v. 
 Berry, xxxi. 293. 
 
 17. After notice to quit to a grantor, remaining in possession after a con- 
 veyance, the grantee may elect to treat the grantor as holding by wrong, and 
 not as tenant ; and the bringing of a writ of entry is such an election. Lar- 
 ralee v. Lumbert, xxxiv. 79. 
 
 18. Until a tenancy at will is terminated, trespass quare clausum cannot be 
 maintained by the owner against the tenant. Young v. Young, XXXTI. 133. 
 
 19. The legal liability of a lessee, to pay rent to his lessor, continues until 
 their relation of landlord and tenant ceases, notwithstanding notice by the 
 landlord to the tenant that he was to pay the rent to a third party. Fox v. 
 Corey, xli. 81. 
 
 20. Whether the provisions of the statute, 4th Anne, c. 16, by which a 
 tenant, having notice of a conveyance of the premises to a third party, is liable 
 to pay rent to the latter without attornment, have been adopted in this State, 
 quere. Fox y. Corey, xli. 81. 
 
 21. Trespass on the case is maintainable by the owners of the fee, against 
 a tenant at wiU, for acts prejudicial to the inheritance. Files v. Magoon, 
 XLI. 104. 
 
 (b) Emblements. 
 
 22. From a proviso in a lease, that the crops raised on the land shall be 
 considered and remain the property of the lessor, till the rents should be paid, 
 there arises no presumption that the rents were in fact paid by the crops. 
 Lithgow V. Moody, xxxv. 214. 
 
 23. If the lessor enters immediately upon the termination of the lease, the 
 lessee can have no rights to the emblements, though he stiU remains on the 
 premises. Chesley v. Welch, xxxvii. 106. 
 
LANDLORD AND TENANT. 341 
 
 (c) iTotice to quit, and determination of tenancies. 
 
 24. Upon neglect to pay the rent due on a lease at will, thirty days notice, 
 given in writing, by the landlord to the tenant, will determine the lease. 
 Smith V. Bowe, xxxi. 212. Button v. Colby, xxxv. 505. 
 
 25. Until the end of that time, the tenant's possession is lawful, and the 
 lease is not determined. Smith v. Rowe, xxxi. 212. 
 
 26. The thirty days notice m. writing, upon which the process of forcible 
 entry and detainer may be maintained, cannot be given until the tenancy is 
 determined. Smith v. Rowe, xxxr. 212. Button v. Colby, xxxv. 505. 
 
 27. Such notice must be distinct from, and subsequent to, that by which 
 the tenancy is to be determined. Smith v. Rowe, xxxi. 212. 
 
 28. After the expiration of a viritten lease, no notice to the tenant is 
 necessary for the purpose of terminating the tenancy. Preble v. Say, xxxii. 
 456. Lithgow v. Moody, xxxt. 214. 
 
 29. In a tenancy at will, a vreitten notice to the tenant, to remove the 
 buildings which he had erected, and to surrender the land to the landlord, 
 will operate as a notice to terminate the tenancy. Preble v. Hay, xxxii. 456. 
 
 30. No act upon the part of the lessor is necessary to be done, to termi- 
 nate a written lease for a specified time. Lithgow v. Moody, xxxv. 214. 
 
 31. The lessee of a farm, by parol, where the rent is payable yearly, must 
 have three months notice, to determine his tenancy. Young v. Young, xxxvi. 
 133. 
 
 32. A conveyance of the estate, by the landlord, will not impair the right 
 thus secured by the statute to the tenant. Young v. Young, xxxvi. 133. 
 
 33. Nor will the commission of waste terminate his tenancy. Young v. 
 Young, XXXVI. 133. 
 
 _ 34. An estate at will, under the statutes of this State, gives to the tenant 
 rights, for a period after a written notice to quit, of equal validity with those 
 acquured under a written lease for a like period. Young v. Young, xxxvi. 
 lo3. 
 
 (d) Action for use and occupation. 
 
 35. mere a creditor, holding land by levy of an execution, subject to the 
 debtor s right of redemption, has leased the same, the debtor, after having 
 redeemed cannot recover of the lessee for the use and occupation prior 
 to the redemption. Bakin v. Goddard, xxxii. 138. 
 
 36. Where the grantor of land remains in possession after the conveyance, 
 such a presumption arises that he is tenant to the grantee, as, if uncontrolled 
 wdl support assumpsit for use and occupation. Larrahee v. Lumbert, xxxiv. 
 
 r,Jl'/''* *^^ ^"°^'°/ "^ ^ ^^^ °^ ^""^^ ^^^'^ possession thereby obtained, 
 precludes a recovery for use and occupation. Larrahee v. Lumlrt, xxxiv. 
 
 J^\I° maintain assumpsit for use and occupation, the relation of landlord' 
 press orTmXd T "1 '''T f' P^^'^^^' ^"""-^^^ '^^ ^^ agreement ex- 
 
 lor Tar;-v.^cs^ i^^^ris: ^-Too^ ^sf ^^^' -- 
 
 disseize? the w ^"'''"^ !'ite'^f >to possession of premises under one who 
 disseized the true owner, is not bable to the latter in an action for use and 
 
342 LANDS RESERVED FOR PUBLIC USES. — LAW AND FACT. 
 
 occupation, (though he may have promised by parol to pay the rent,) unless 
 an entry has been made to purge the disseizin. Soxhury v. Huston, xxxix 
 312. 
 
 See Action, 7. 
 Assumpsit, 16. 
 
 LANDS RESEKVED FOR PUBLIC USES. 
 
 1. A resolve of the Legislature, authorizing the assessors of a plantation, 
 in their own names and for the use of schools, to recover the value of timber 
 and grass wrongfully taken from lands reserved for public uses, is not a grant 
 of the avails. Dudley v. Oreen, xxxv. 14. 
 
 2. Such a resolve is merely an appointment of agents for the public. Such 
 agency may be lawfully revoked, at any time, by a repeal of the resolve. 
 Dudley v. Green, xxxt. 14. 
 
 3. The Act of 1845, authorizing County Commissioners to grant permits 
 for the cutting of timber upon the public lots, was repealed in 1848, which 
 terminated the Commissioner's authority. Small v. Small, xxxv. 400. 
 
 4. Such permits could operate only for one year. Hence a permit for cut- 
 ting all the timber upon a public lot, though to be cut in such quantities 
 yearly as the Act allowed, was held to be inoperative at the end of one year, 
 and to furnish no protection to the purchaser to cut after that time. Small 
 V. Small, xxxv. 400. 
 
 LARCENY. 
 See Indictment, 56, 57. 
 
 LAW AND FACT. 
 
 I. WHAT ARE QUESTIONS OF LAW. 
 II. WHAT ARE QUESTIONS OF FACT. 
 
 I. WHAT ARE QUESTIONS OF LAW. 
 
 1. In an action to recover damages for a malicious prosecution, the question 
 of probable cause, upon established facts, is a question of law. Stevens v. 
 Fassett, xxTii. 266. Maries v. Gray, xi.ii. 86. 
 
 2. The jury are to decide matters of fact, and those only. And when the 
 facts are found by uncontradicted testimony, or by agreement, or by special 
 Terdiet, their legal effect is matter of law. Todd v. Whitney, xxvii. 480. 
 
LAW AND FACT. 
 
 343 
 
 3. When the intention of the parties is clearly and fully disclosed, neither 
 the Court nor jury can disregard them, and infer and substitute other and 
 different intentions. Todd v. Whitney, xxyii. 480. 
 
 4. When a usage, which may affect the rights of the parties, is presented 
 by the testimony, it becomes the duty of the Court to determine whether, if 
 proved to the satisfaction of the jury, it is reasonable and operative. Godman 
 V. Armstrong, xxviil. 91. 
 
 5. It is the duty of the Court to define the meaning of words used in 
 written contracts. Herbert v. Ford, xxxiii. 90. Brown v. Orland, XXXTI. 
 376. Randall v. Thornton, xliii. 226. 
 
 6. Where a case is submitted upon a statement of facts, and the statement 
 shows that an act was done either "feloniously or fraudulently," the Court 
 are not at liberty to infer that the act was felonious, but wiU consider it as 
 merely fraudulent. Bitson v. Randall, xxxiii. 202. 
 
 7. Where evidence is introduced, without objection, as to the terms of a 
 vote passed by a proprietary, and no question is raised concerning them, the 
 Court may instruct the jury as to the effect of such vote. Yeaton v. Yeaton, 
 xxxYl. 248. 
 
 8. Whether a party is entitled to damages for the loss of a contract, recited 
 in the one broken, is a question of law. Bridges v. Stichney, xxxviii. 361. 
 
 9. A contract in vnriting is to he construed by the Court, and not by the 
 jury. Randall v. Thornton, xliii. 226. 
 
 10. The Court will not determine the truth or absurdity of facts which are 
 the result of scientific knowledge and experience, testified to by experts. If 
 untrue, their fallacy is to be shown by evidence of other experts. State v. 
 
 t, XIIII. 11. 
 
 II. WHAT AHE QTJESTIONS OF FACT. 
 
 11. The Court cannot imply a promise, so as to take the contract from the 
 statute of limitations, as an inference of law, from the payment of a part of 
 the debt ; but the evidence should be submitted to the jury with proper 
 instructions, to enable them to do it. White v. Jordan, xxvii. 370. 
 
 12. Where the intention of parties is not clearly or necessarily disclosed 
 by the facts, it is a matter of fact for the jury, in order that the Court may 
 determine the legal effect of the facts coupled with the intention. Todd v. 
 Whitney, xxTii. 480. 
 
 13. The law having been stated to the jury, they may judge, in all cases, 
 of the reasonableness of charges, made in an account. When an agreed 
 price is proved, or a usage which might affect it, or evidence from which an 
 agreement might be inferred, they cannot judge of the reasonableness of the 
 charges, irrespective of such agreement or usage. Godman v. Armstrong, 
 xxviii. 91. 
 
 14. Whether the testimony of certain witnesses, if believed, would prove 
 that certain property had been delivered up to the plaintiff prior to the acts 
 complained of, or whether it still remained in the possession, and at the risk 
 of the defendant, is a matter of fact. Alley v. Blen, xxviii. 308. 
 
 15. Not only the words, but the meaning of words, used orally between 
 parties, are matters of fact. Copeland v. Eall, xxix. 93. Herbert v. Ford, 
 XXXIII. 90. Broion v. Orland, xxxTi. 376. Houghton v. Houghton, xxxvii. 
 72. Ctttiing, J., dissenting. 
 
344 LAW AND FACT. 
 
 16. In actions of libel, the question of malice is a question of fact. Lan- 
 cey V. Bryant, xxx. 466. 
 
 17. Where one witness testifies positively to a fact, and another -witness of 
 equal credibility contradicts it, and testifies to facts inconsistent with its 
 truth ; whether the main fact be proved or not is a question for the jury. 
 Johnson v. Whidden, xxxii. 230. Sweetser v. Lowell, xxxiii. 446. 
 
 18. Whether a master of a vessel exercises reason, skill, prudence and care 
 to give all others their just rights in navigating a river, is a question of fact. 
 Knowlton v. Sandford, xxxii. 148. 
 
 19. So, whether a certain degree of force was necessary to defend one's 
 property, and therefore justifiable. State v. Clements, xxxii. 279. 
 
 20. An insurance was effected upon a mill for the manufacture of starch, 
 upon a representation that the business had been completed for the season. 
 In fact, a quantity of starch was then lodged in the drying room ; and, for the 
 purpose of expelling the moisture from it, a fire was made in the mill, after 
 the policy had been effected: — Held, that whether such drying was, or was 
 not part of the manufacturing process ; and, therefore, whether the represen- 
 tation was, or was not true, that the business of manufacturing was completed 
 when the insurance was effected, are matters of fact. Percival v. Maine M. 
 M. Ins. Co., XXXIII. 242. 
 
 21. So what, under the circumstances, would be a suitable watch, when an 
 insurance was effected upon a building, upon a warranty that a " suitable 
 watch" would be kept. Percival v. Maine M. M. Ins. Co., xxxiii. 242. 
 
 22. So, also, whether the article sold, was or was not of the prohibited 
 class, in a prosecution for the unlawful sale of spirituous or intoxicating 
 liquors. State v. Wall, xxxiv. 165. 
 
 23. So, whether the corporation were the party to a judgment, recovered 
 under a name variant from their corporate name ; and upon which parol evi- 
 dence is admissible. Wilton Manufg Co. v. Butler, xxxit. 431. 
 
 24. So, whether the user of a road, whereby it has become a public way, 
 extended to the whole space between the fences, or only to the wrought part 
 between the gutters. Lawrence v. Mt. Vernon, xxxv. 100. 
 
 25. So, as to what, in truth, were the terms of a vote passed by a pro- 
 prietary, where evidence to that point is introduced without objection. Yeaion 
 V. Yeaion, xxxvi. 248. 
 
 26. And, as to which class of wood, whether hard or soft, a particular 
 species belongs. Darling v. Dodge, xxxvi. 370. 
 
 27. And, whether the master, under all the circumstances, exercised a 
 sound judgment and discretion, in selling the cargo of a vessel. Pilie y. 
 Balch, xxxviii. 302. 
 
 28. And, whether alleged obstructions or defects in a highway render it 
 unsafe, although not in the traveled part of it. And whether, in some par- 
 ticular localities, the highway should not be made safe and convenient for its 
 entire width. Bryant v. Biddeford, xxxix. 193. 
 
 29. And, the construction of a written contract, where the contents of it is 
 proved by parol, without any copy, the original having been lost. Moor v. 
 Holland, xxxix. 307. 
 
 30. And, whether a note has been altered or not, since it passed out of the 
 hands of the promisor. Shapleigh v. Abbott, XLI. 173. 
 
 31. And, whether a delivery of a part was for the whole. Pratt v. Chase, 
 XL. 269. 
 
LEASE. 345 
 
 82. The credit of a witness is a matter entirely for a, jury, as to which no 
 invariable rules of law can be given. The maxim, "/a?SMS in uno, falsus in 
 omnibus," is qualified by circumstances. Parsons v. Huff, xli. 410. Mer- 
 rill V. Whitefield, xil. 414. 
 
 33. And, whether, under the Act of 1851, c. .211, § 16, spirituous or in- 
 toxicating liquors are so sold as to be liable to seizure or forfeiture, or are 
 intended for sale in violation of law. Dolan v. Buzzell, xli. 473. 
 
 34. The report of commissioners, in a process of partition, contained the 
 following clause, descriptive of a portion of the estate : " Also the water 
 privilege now occupied by the saw-mill called Franklin:" — Held, that the 
 extent of that privilege was matter of fact for the jury. Munroe v. Gates, 
 XLii. 178. 
 
 35. So, whether a stream is capable of being used as a passage way for the 
 purposes of commerce. Treat v. Lord, xlii. 552. 
 
 LEASE. 
 
 1. A lease for a stipulated time, covenanting that the lessee shall pay the 
 rent and peaceably give up the possession at the end of the term, " and for 
 such further time as the lessee shall hold the same," is a security both for the 
 surrender of the estate and for rent during the occupation. Kendall v. Moore, 
 XXX. 327. 
 
 2. Under the lease of a farm and stock of cattle, with stipulation that the 
 rent should consist of a specified part of the products, except the hay, " all 
 of which was to be used on the farm for the stock :" — Held, that the tenant 
 had no attachable interest in the hay. Potter v. Cunningham, xxxit. 192. 
 
 3. The lessee, who stipulates that one half of the hay shall be consumed 
 on the farm, and the other half divided between the lessor and lessee, has the 
 entire property, until division be made. Symonds v. Hall, xxxvii. 354. 
 
 4. Such division vests the portions divided, separately, in the lessor and 
 lessee ; but the undivided half to be consumed on the farm remains the pro- 
 perty of the lessee, without a delivery be made to the lessor. Symonds v. 
 Hall, XXXVII. 354. 
 
 5. If the owner of land execute a lease of it for a series pf years and die, 
 the accruing rents, after his death, descend to his heirs. Stinson v. Stinson, 
 xxxYiii. 593. 
 
 6. N. let certain land and buildings to F., for six years, and gave him a 
 permit to detach some of the buildings and erect others, and to take away 
 such new erections or sell them upon the premises, at the determination of 
 the lease, after the buildings had been restored to their original position, and 
 not before. The change was made and a new building erected. After such 
 erection, and before the expiration of the lease, it was surrendered and ac- 
 cepted. After such surrender, the lessee sold the new building to the plain- 
 tiff, who, at a place distant from the premises, and before the six years had 
 expired, notified the lessor that he wished to take off the building, and was 
 ready to comply with all the conditions of the permit. The lessor claimed 
 the building as his own, and said he should hold it by force, if there should 
 be any attempt to remove it. In trover, for the building : — Held, — 
 
 44 
 
346 LEASE. 
 
 1st. That, for the purpose of complying with the conditions of the permit, 
 no demand by the lessee was necessary, and his rights could not be changed 
 or enlarged by making such demand ; — 
 
 2d. That the obligations of the parties under the permit were not mutual 
 and dependent, but to entitle him to the building, all that was to be done, 
 was to be done by the lessee ; — 
 
 3d. That, if the lessee was rightfully on the premises at the proper time, 
 and in the act of performing or attempting to perform his stipiJations men- 
 tioned in the permit, and had then been refused, or resisted, it might have 
 been evidence of a conversion ; but — 
 
 4th. The claim to the building, under the circumstances and nature of the 
 demand, was no evidence of conversion. The lessee was bound to restore 
 the buildings to their original position, before he could take them away. 
 Parker v. Goddwrd, xxxix. 144. 
 
 7. The owner of real estate may transfer his land by a lease, executed by 
 him unconditionally, and the lease wiU be effectual, although it contains 
 covenants intended for the execution of the lessee by signing and sealing, 
 but was not in fact signed and sealed by the latter.' The lessor may waive 
 the covenants on the part of the lessee ; and the putting them on record by 
 the lessor is a waiver. Libhey v. Staples, xxxix. 166. 
 
 8. A levy upon property leased, for the debts of the lessor, contracted 
 prior to the lease, without the agency of the lessee, or any agreement on his 
 part to pay such debts, will excuse the latter from performance of his cove- 
 nants to manage such property, afterwards, so far as the omission was the 
 consequence of the property passing from his control. Oreat P. Mining Go. 
 V. Buzzell, XXXIX. 173. 
 
 9. The lessee of real property, when establishing title, may use as evidence 
 an office copy of the recorded title deed of his lessor. Trask v. Ford, xxxix. 
 437. 
 
 10. A lease to one during his life, with the privilege of furnishing his 
 daughters a home, so long as they remain unmarried, gives to them no rights 
 as tenants of the freehold. Quimby v. DUl, XL. 528. 
 
 LEGACY. 
 
 See Devise and Legacy. 
 
 LEVY ON REAL ESTATE. 
 See Execution, 7 — 102. 
 
 LIBEL FOR FORFEITURE. 
 See Loos. Shipping, 49, 50. 
 
LIBEL AND SLANDER. 347 
 
 LIBEL AND .SLANDER. 
 
 I. THE CBIMINAL OFFENCE, 
 n. THE CIVIL ACTION. 
 
 I. THE CRIMINAL OFFENCE. 
 
 1. In an indictment for a libel, an allegation that the defendant sent the 
 same to several specified persons, and thereby published the same, is a suf- 
 ficient averment of publication. State v. Barnes, xxxii. 530. 
 
 2. Such an allegation is not a mere allegation of law. It is sustained by- 
 proof that the defendant sent the libel to one only of the persons specified. 
 State V. Barnes, xxxii. 530. 
 
 3. An allegation, that the defendant wrote and printed a libel, may be treat- 
 ed as an allegation that he wrote and printed a false and defamatory publica- 
 tion. The whole words need not be set out. State v. Barnes, xxxii. 530. 
 
 4. In such indictment, it is not necessary to set out the residence and ad- 
 dition of the person libeled. State v. Barnes, xxxir. 530. 
 
 5. Where several modes of publication are mentioned, it is not fatal that 
 they are alleged in the disjunctive. State v. Barnes, xxxii. 530. 
 
 6. A former conviction, for the same offence, cannot avail in arrest of judg- 
 ment. It should be specially pleaded. State v. Barnes, xxxii. 530. 
 
 .II. THE CIVIL ACTION. 
 
 (a) What is libellous, or actionable. 
 
 (b) "VVhAT may be shown in justification OB DEFENCE. 
 
 (c) Pleadin&s. 
 
 (d) Generallt. 
 
 (a) What is libellous, or actionable. 
 
 7. The repetition of slanderous words, spoken by another at the request of 
 the plaintiff', wiU not sustain an action. Haynes v. Leland, xxix. 233. 
 
 8. Words spoken of another, in themselves actionable, but under such cir- 
 cumstances as would not lead the persons present to believe they were spoken 
 as truth, cannot support an action. Whitman, C. J., dissenting. Eaynes 
 V. Haynes, xxix. 247. 
 
 9. Words, not in themselves actionable, may be the foundation of an 
 action, by reason of some special damage, occasioned by them. Barnes v. 
 Trundy, xxxi. 321. 
 
 10. To charge one with drunkenness is not of itself actionable; for the 
 law does not inflict upon that offence an infamous punishment. Buck v 
 Mersey, xxxi. 558. 
 
 11. A witness, testifying in the regular course of legal proceedings, and 
 under the direction of the Court, is not liable in an action of slander for the 
 answers he may make to questions put to him by the Court or counsel, pro- 
 vided such answers are pertinent and responsive to the questions. Barnes v. 
 McVrate, xxxii. 442. 
 
348 LIBEL AND SLANDER. 
 
 12. Words, imputing the crime of perjury, are actionable in themselves. 
 Newhit V. Statuck, xxxv. 315. 
 
 13. To assert that A. B. " committed the crime, or he ■would not have done 
 that other act," is a charge that A. B. committed the crime. True v. Plum- 
 ley, XXXVI. 466. 
 
 14. A charge that a married female is a " bad woman, and has dealings 
 with other men besides her husband, and is not very particular with whom," 
 does not amount to the charge that she " is a whore." True v. Plumley, 
 XXXVI. 466. 
 
 (b) What may he shown in justification, or defence. 
 
 15. It is a good defence, that the words spoken were but the repetition of 
 what was uttered by some other person, whose name was given at the time, 
 unless it be proved that the repetition was malicious. Whitman, C. J., 
 dissenting. Haynes v. Leland, xxix. 233. 
 
 16. Where one justifies, that the words were but the repetition of what 
 was uttered by another, whose name was given at the time, the onus is upon 
 the defendant, whether the defence be presented under the general issue, or 
 by a special plea. Haynes v. Leland, xxix. 233. 
 
 17. For words charging the crime of perjury, a justification by the defend- 
 ant, that the charge was true, can be established only by evidence as strong 
 as would have been necessary to convict the plaintifi" of perjury. Newhit v. 
 Statuck, xxxv. 315. 
 
 18. In such a suit, therefore, the testimony which the plaintifi' gave upon 
 the previous trial is to be considered by the jury, in connection with the 
 other evidence in the case. Newhit v. Statuch, xxxv. 315. 
 
 19. An unlawful intermeddling with the defendant, or an unlawful attempt 
 to search his person, wiU not authorize him to suppose such person may have 
 taken his money, or excuse him for uttering such a charge. Kent v. Bon- 
 zey, xxxviii. 435. 
 
 20. Where it is shown that the words were spoken as privileged commu- 
 nications, so that there was no legal malice, it is^ a full justification. Jetti- 
 son V. Ooodiovn, XLiii. 287. 
 
 (c) Pleadings. 
 
 21. The defendant cannot give the truth in evidence, under the general 
 issue, either as a defence or in mitigation. Neither can he make a defence 
 under a brief statement, which was inadmissible under a special plea. Taylor 
 V. Eohinson, xxix. 323. 
 
 22. Where the defendant uttered actionable words without a lawful object, 
 and there are no pleadings under which their truth may be given in evidence, 
 he caimot show the misconduct of the plaintifi' to rebut the presumption of 
 malice ; nor, unless the misconduct gave rise to the charge, and led the de- 
 fendant to believe him guilty, could it be given in evidence in mitigation. 
 Taylor v. Rohinson, xxix. 323. 
 
 23. No action can be maintained for words not in themselves actionable, 
 unless the declaration contain a distinct averment that they were spoken of 
 and concerning the plaintiff, and of and concerning his occupation. Barnes 
 v. Trundy, xxxi. 321. 
 
LIBEL AND SLANDER. 349 
 
 24. So, when such words become actionable by reason of some special 
 damage occasioned by them, such damage must be specially alleged and 
 proved. Barnes v. Tmndy, xxxi. 321. Buck v. Eersey, xxxi. 558. 
 
 35. A count, setting forth that the defendant had charged the plaintiff with 
 the commission of a crime, by its general designation, is sustainable, though 
 specially demurred to. True v. Plumley, xxxTl. 466. 
 
 26. Under such general count, the Court, on motion, may order a specifica- 
 tion of the words which the plaintiff proposes to prove. True v. Plumley, 
 XXXVI. 466. 
 
 27. The time when the words were uttered may be alleged with a con- 
 tinuando. Burhanh v. Som, xxxix. 233. 
 
 28. And the place, when alleged with a videlicet, is sufficient ; and its 
 omission would be only a fault in form. Burhanh v. Horn, xxxix. 233. 
 
 29. The allegation that the slander was uttered in the presence and hearing 
 of divers persons, or in the hearing of certain persons, (by name,) sufficiently 
 sets forth its publication. Burhanh v. Horn, xxxix. 233. 
 
 30. To charge a person with having " stolen boards," without any qualifica- 
 tion, implies the crime of larceny, and no innuendo is necessary to explain its 
 meaning. Burhanh v. Horn, xxxix. 233. 
 
 31. When the libel or slander does not affect the plaintiff's moral character, 
 but merely imputes insolvency or incapacity in the way of his trade, &c., the 
 inducement of good character is inapplicable, and the declaration should com- 
 mence with an inducement respecting his trade, &c. Burbank v. Horn, 
 XXXIX. 233. 
 
 32. When the slander is prima facie actionable, a declaration stating the 
 defendant's malicious intent, and the slander concerning the plaintiff, is suf- 
 ficient without any prefatory inducement. Burhanh v, Horn, xxxix. 233. 
 
 (d) Generally. 
 
 33. In actions of libel, the question of malice is to be determined by the 
 jury. Lancey v. Bryant, xxx. 466. 
 
 34. In an action against the editor of a newspaper, for a libellous publica- 
 tion, it is admissible for the plaintiff to show articles in subsequent numbers 
 of the same paper, for the purpose of proving that the plaintiff was the per- 
 son intended to be defamed. White v. Sayward, xxxiii. 322. 
 
 35. Testimony of witnesses is not receivable to show that, on reading the 
 libellous article, they considered the plaintiff as the person intended to be de- 
 famed. White V. Sayward, xxxiri. 322. 
 
 36. From words, in themselves actionable, the law implies malice, and that 
 some damage arises therefrom. True v. Plumley, xxxvi. 466. Jellison v. 
 Ooodwin, xiiii. 287. 
 
 37. In addition to the implication of malice, a plaintiff may prove express 
 mahce, for the purpose of increasing the amount of damages. True v. Plum- 
 ley, XXXVI. 466. Jellison v. Goodwin, xiiii. 287. 
 
 38. For this purpose, he may prove that the defendant repeated the slan- 
 der, after action brought. The repetition is not to be viewed as a substan- 
 tive ground of recovery ; but only to iUustrate the motive of the former speak- 
 ing. True v. Plumley, xxxvi. 466. ^ 
 
 39. In a subsequent suit for such repetition, it is no defence that the repe. 
 
350 LICENSE.— LIENS. 
 
 tition was proved in the former suit; if it was so done for the sole purpose of 
 showing malice in the original speaking. True v. Plumley, xxxvi. 466. 
 
 40. One count charged a married female with the crime of adultery, and 
 another that she was a whore : — Held, that proof of the adultery would de- 
 feat a recovery upon the first count, and would mitigate, hut not defeat, a re- 
 covery upon the other. True v. Plumley, xxxvi. 466. 
 
 41. In an action of slander, it is^ indispensable that the Judge present to 
 the jury the rule of the law by which their assessment of damage should be 
 made. True v. Plumley, xxxvi. 466. 
 
 42. And it is proper that the jury, in assessing the damage, should regard 
 the probable future, as well as the actual past. True v. Plumley, xxxvi. 
 466. 
 
 43. In order that a recantation of the slanderous charge may be admissible 
 in mitigation, it should be made in public, or in a mode to qualify the slan- 
 der ; or it should be made known to the party defamed, or to those who had 
 been apprized of it. A retraction in the defendant's family merely would not 
 avail him. Kent v. Bonzey, xxxviii. 435. 
 
 44. In slander, malice in fact implies a desire and intention to injure ; but 
 malice in law is not necessarily inconsistent with an honest or even a laudable 
 purpose. Jellison v. Goodmn, xliii. 287. 
 
 45. Whether, upon the evidence, legal malice exists, is a question of law. 
 Jellison v. Ooodwin, xxiii. 287. 
 
 LICENSE. 
 
 1 . A person who rightfully obtained a license to peddle is not liable to a 
 penalty for not having one, although the County Commissioners had omitted 
 to complete their records concerning it. Foster v. Dow, xxix. 442. 
 
 2. Unexpired licenses, under an Act which is repealed, are not annulled 
 by the repeal, when in conformity with existing laws. Foster v. Dow, xxix. 
 442. 
 
 LIENS. 
 
 L LIENS GENERALLY, AND THE MODE OF SECURING THEM. 
 n. WAIVER OR EXTINGUISHMENT OP LIENS. 
 
 L LIENS GENERALLY. 
 
 1. The lien preserved by the Bankrupt Act of 1841 cannot exist after the 
 debt, judgment, or other instrument, by which it was upheld, has been dis- 
 charged. Howe V. Handley, xxviii. 241. 
 
 2. But where the lien, by virtue of an attachment of chattels, is discharged 
 by proceedings in bankruptcy, during the pendency of an action of replevin 
 
LIENS. 351 
 
 of the property attached, the creditor, by E. S. of 1841 c. 130, § 14, is en- 
 titled to receive, from the officer, interest at the rate of twelve per cent per 
 annum, on the value of the property, for so long a time as the service of his 
 execution was delayed; to be returned for his own use, and not applied to 
 the discharge of his judgment. Howe v. Handley, xxvili. 241. 
 
 3. Any person entitled to a lien upon a house, building or land, under 
 E S of 1841, c. 125, § 37, is not entitled to a preference over the general 
 creditors, when the debtor has deceased and his estate has been rendered in- 
 solvent within one year from the time of granting administration. Wells, 
 J., dissenting. Severance v. Hammatt, xxviii. 511. 
 
 4. The English doctrine of a lien upon an estate, for the payment of the 
 purchase money, has never been admitted in this State; Philbrook v. De- 
 lano, xiix. 410. 
 
 5. "When one of the proprietors in common of land has redeemed his own 
 part, and also the part of another co-tenant, from a sale for taxes, and taken 
 the purchaser's release thereof, such redemption transfers to him a lien there- 
 on for a reimbursement, though it wUl give him no right of action to, enforce 
 it. WatUns v. Eaton, xxx. 529. 
 
 6. The statute invalidating unrecorded mortgages of personal property 
 does not extend to liens. Sawyer v. Fisher, xxxii. 28. 
 
 7. Where the common law itself raises a lien, the possession must be con- 
 tinued. Sawyer v. Fisher, xxxii. 28. 
 
 8. Liens may be created by contract ; and the mode, in which it shall be 
 effectuated, continued or rescinded. Sawyer v. Fisher, xxxii. 28. 
 
 9. If it appear in a written contract that the parties intended to establish 
 a lien, that intent must prevail, unless in conflict with the rules of law. 
 Sawyer v. Fisher, xxxii. 28. 
 
 10. When it is stipulated, in the contract of sale of personal property, 
 that the vendor shall retain a lien until payment, no rule of law conflicts with 
 it. Sawyer v. Fisher, xxxii. 28. 
 
 11. A stove, with its funnel, cannot be considered as materials for the re- 
 pair of a building, within the meaning of the statutes of lien. Lambard v. 
 Fike, xxxiii. 141. 
 
 12. The lien, created by an attachment of real estate, is not limited to the 
 amount which the officer was commanded, in the writ, to attach, but is com- 
 mensurate with the judgment and costs of the levy. Searle v. Preston, 
 XXXIII. 214. 
 
 13. A lien, reserved in a grant of land, upon the lumber which the grantee 
 may take therefrom, is postponed to the lien given by the Act of 1848 to 
 laborers. Spofford v. True, xxxiii. 283. 
 
 14. When a grant of land, upon a condition subsequent, authorizes the 
 grantee to take lumber therefrom, subject to lien for the purchase money, and 
 several distinct quantities or lots of lumber are cut and driven to the boom 
 by the grantee, (the persons employed in getting one of the lots having no 
 connection with those who get another of the lots,) the lien of each laborer 
 is upon the lot upon which he worked. Spofford v. True, xxxiii. 283. 
 
 15. But, if, by the negligence or carelessness of the grantee in such deed, 
 such several lots of lumber become intermixed, so that the respective lots 
 upon which the several laborers worked cannot be distinguished, their respec- 
 tive liens are upon the whole mass. Spofford v. True, xxxiii. 283. 
 
352 LIENS. 
 
 16. In actions by the laborers to establish their lien claims, such an inter- 
 mixture, if it occurred without their fault, is evidence of negligence or care- 
 lessness in the grantee, unless it was produced by some iraud or accident. 
 Spofford T. True, xxxiii. 283. 
 
 17. So far as relates to the lien claims of the laborers, the grantee in the deed 
 is to be treated as the agent of the grantors, and they are responsible for the 
 consequences of his negligence or carelessness. Stafford v. True, xxxiii. 
 283. 
 
 18. The general rule, that titles and interests in real estate are to appear 
 of record, has been controlled, to some extent, by the statute of liens. Con- 
 tracts for labor or materials, and the furnishing the same under that stat- 
 ute, are proveable by parol. Parsons v. Gopeland, xxxiii. 370. 
 
 19. Generally, it is only by the act of the owner, that a contract-lien upon 
 property can be created. That rule was changed by the Act of 1848, creating 
 a lien in behalf of laborers upon logs, &c. Doe v. Monson, xxxiii. 430. 
 
 20. An owner of logs employed a contractor to drive them at a stipulated 
 price per thousand feet. The contractor employed assistants : — Held, that 
 the assistants acquired a lien upon the logs. Doe v. Monson, xxxiii. 430. 
 
 21. Such owner, being summoned as trustee of the contractor, was allow- 
 ed to discharge the laborers' liens out of the stipulated price. Doe v. Mon- 
 son, XXXIII. 430. 
 
 22. When, in the same stream, there are logs of different owners, and 
 each owner h^s employed sufficient laborers to drive his own logs, the lien of 
 such laborers is solely upon the logs they were employed to drive ; although 
 the logs, being intermixed, are driven collectively by all the laborers of all 
 the owners. Doe v. Monson, xxxiii. 430. Hamilton v. Buck, xxxvi. 536. 
 Doyle V. True, xxxvi. 542. 
 
 23. The lien of a common carrier, for the freight of goods, transported by 
 sea from a port of one nation to that of another, does not authorize him, of 
 itself, to sell the goods for the payment of the freight. The usual remedy is by 
 a libel. Sullivan v. Park, xxxiii. 438. 
 
 24. A mechanic employed to work upon a vessel, not by the owner, but by 
 a contractor for a specified price, cannot enforce a lien upon the vessel by an 
 action against the owner ; but if he have such a lien, his remedy is by ■attach- 
 ing the vessel, in a suit against his employer. Ames v. Swett, xxxiii. 479. 
 Atwood V. Williams, XL. 409. 
 
 25. The Act of 1850, c. 159, enlarging liens upon buildings, was prospec- 
 tive only, and cannot aid a plaintiff, who, prior to its enactment, had attached 
 to seQure his lien. Kendall v. Folsom, xxxiv. 198. 
 
 26. A part owner of a vessel, who pays money to discharge liens for the 
 expenses of building her, has no right to contribution from the other part 
 owners, if the liens arose wholly from the delinquency of his vendor , to pay 
 his proportion of the building expenses. Beed v. Bachelder, xxxiv. 205. 
 
 27. The "personal" service embraces the time during which the laborer is 
 detained at the employer's request, while the business is getting into a con- 
 dition for the labor to be resumed. McCrillis v. Wilson, xxxiv. 286. 
 
 28. Where laborers, in separate crews and in separate places, work for the 
 same employer in cutting and hauling lumber in the woods : it seems, that 
 each one of them has a lien on any pieces of the lumber when at the place of 
 manufacture, though without showing that he, or the crew with which he 
 labored, worked upon such pieces. McCrillis v. Wilson, xxxiv. 286. 
 
LIENS. 353 
 
 29. A commission merchant, who has sold part of the goods left with him 
 for sale, has a lien upon the residue for his commissions and for freight paid 
 and other advances. Sewall v. Nichols, xxxiv. 582. 
 
 30. To secure his lien, he may maintain replevin for the goods, even against 
 an officer who has attached them on a precept against the owner. Sewall v. 
 Nichols, XXXIV. 582. 
 
 31. His consent to become the keeper of the goods for the attaching offi- 
 cer does not defeat his right to maintain such action. Sewall v. Nichols, 
 xxxiT. 582. 
 
 32. Any owner, who is compelled, by such an " intermixture" of logs as is 
 contemplated under E. S. of 1841, c. 67, § 9, to drive the logs of other per- 
 sons as well as his own, is bound, in selecting the time for driving, and in aU 
 other particulars, in which the rights of such others are involved, to exercise 
 good faith, sound discretion and prudent management. Foster v. Gushing, 
 XXXV. 60. 
 
 33. Then, there arises to him a claim to recover of the others a reasonable 
 compensation ; and it is no defence, that they had formed the purpose, 
 and made ample provision to drive their own logs. Foster v. Gushing, 
 XXXV. 60. 
 
 34. The statute, giving to laborers a lien upon lumber, extends only to 
 the security of payment for their " personal services," and does not include 
 the use of teams and their needful apparatus, fiohurn v. Kerswell, xxxv. 
 126. 
 
 35. The lien on lumber does not extend to the hire of teams, though em- 
 ployed upon the same lumber, McGrillis v. Wilson, xxxiv. 286. Coburn v. 
 Kerswell, xxxv. 126. 
 
 36. The law furnishes to the keeper of a livery stable no lien for the 
 boarding or doctoring of horses at his stable. Miller v. Marston, xxxv. 153. 
 Vide Lien, 56. 
 
 ' 37. By K. S. of 1841, c. 125, § 37, lien for erecting or repairing build- 
 ings extended only to contracts made by the owners or mortgagers of land, 
 or by persons who had contracted with them. Hence, an obligee in a bond, 
 for conveyance of the land, cannot subject it to a lien for such a cause. John- 
 son V. Pihe, xxxv. 291. 
 
 38. The owner of land may expose it to a lien-claim, in favor of a person 
 who may make erections thereon, pursuant to a sub-contract between himself 
 and the principal contractor, whom the owner had employed to do the work. 
 Johnson v. Fike, xxxv. 291. 
 
 39. In such case, the sub-contractor may perfect his lien by levy under the 
 judgment, which he may have recovered against the principal contractor. 
 Johnson v. Fike, xxxv. 291. 
 
 40. In a subsequent suit, involving title to the land, such owner is not a 
 party or privy to that judgment, and is not estopped by it, or by any allega- 
 tions in the writ upon which it was obtained, to show that no lien right had 
 existed. Johnson v. Pike, xxxv. 291. 
 
 41 The lien under R. S. of 1841, c. 125, § 37, gives no protection to one 
 who builds for himself, under a verbal arrangement that he should purchase 
 the land at an agreed price. Gray v. Garleton, xxxv. 481. 
 _ 42. The amendatory Act of 1850 extended to suits pending at the time of 
 its enactment. Gray v. Garleton, xxxv. 481. 
 
 45 
 
354 LIENS. 
 
 43. A guardian tas no lien upon a judgment, recovered in the name of his 
 ward, for advances made in its recovery. Lang v. Whitney, xxxvi. 155. 
 
 44. A party, who, at the request of the debtor, advances money to pay a 
 third person his lien-claim for services, in building a vessel, does not thereby 
 acquire a right to enforce the lien, in his own name, for a reimbursement. A 
 lien-claim for such services cannot be enforced in the name of an assignee. 
 Pearsons v. Tincker, xxxvi. 384. 
 
 45. The Penobscot Boom Corporation has a lien upon logs caught and raft- 
 ed in the boom for toll or boomage. Suckins v. Gushing, xxxvi. 423. 
 
 46. To enforce a lien-claim on logs, against an administrator of an estate 
 represented insolvent, under the Act of 1851, c. 216, the nature of the claim 
 must appear in the writ. McNally v. Kerswell, xxxvii. 550. 
 
 47. Where the defendant purchased a lot of logs, lying in a distant place, 
 took a bill of sale, and, under it, obtained possession of a part, and designed 
 to secure the residue, in an action against him by one having a lien : — Held, 
 that he was liable for the value of those only, which he had actually received, 
 Leisherness v. Berry, xxxviii. 80. 
 
 48. A lien upon logs or vessels may be secured by an attachment of them. 
 But when judgment has been rendered upon such claim, and the attachment 
 lost by lapse of time, no lien-claim can be enforced by an alias execution 
 issued thereon. Robinson v. i^Mnter, ■ xxxviii. 130. Clapp v. Glidden, 
 XXXIX. 448. 
 
 49. An inn-holder has a lien for the entertainment of his guest, upon his 
 property committed to his charge. Stanwood v. Woodivard, xxxviii. 192. 
 
 60. But before such lien can be established, he must prove that he is an 
 inn-holder according to the R. S. of 1841, c. 36. Stanwood v. Woodward, 
 XXXVIII. 192. 
 
 51. The right of lien under R. S. of 1841, c. 125, § 35, extends to the 
 employee of a contractor with the owner of the vessel, although the contractor 
 has received his pay in full. Atwood v. Williams, xi. 409. 
 
 52. An action, commenced before the expiration of a lien, and to enforce 
 it, may be prosecuted to judgment and execution, against an administrator or 
 executor, notwithstanding the death and insolvency of the debtor. Pratt v. 
 Seavey, xii. 370. 
 
 53. So, also, in case of a defendant under guardianship by reason of in- 
 sanity, whose estate has been duly represented insolvent. Pratt v. Seavey, 
 XLi. 370. 
 
 54. The plan of a house, the model of a ship, or the mould by which a 
 ship's timbers are formed, cannot be regarded as within the statutes of lien. 
 Ames V. Dyer, xii. 397. 
 
 55. "Under the Act of 1855, c. 144, owners of logs, attached under the lien 
 law, "may come into Court and defend" the suit. But they cannot try the 
 question of lien. McPheters v. Lumbert, xli. 469. 
 
 56. An inn-keeper, to whom a horse is committed to be doctored, has a 
 lien thereon, either as an inn-keeper or farrier, for his reasonable charges ; 
 and until such lien be discharged, replevin by the owner is not maintainable. 
 Danforth v. Pratt, xlii. 50. Vide Lien, 36. 
 
 57. A general lien, at common law, is the right to retain the property of 
 another, to secure a general balance of accounts. Taggard v. Buclcmon, 
 XIII. 77. 
 
LIENS. 355 
 
 58. The lien provided in K. S. of 1841, c. 125, § 35 extends no further 
 than to he security for the price of the labor and materials actuaUy expended 
 upon the property to which it attaches. Taggard v. Buckmore, XLii. 77. 
 
 59. Materials, sold under the representation that they would he mought 
 into a certain vessel, but which, in fact, were incorporated into a vesse 
 other than that designated, create a lien only on the vessel in which they 
 were used. Taggard v. Buchmore, xlii. 77. 
 
 60 A lien is not secured by attachment in the usual form; but the nature 
 of the claim must appear in the writ. Otherwise, it confers on the attaching 
 creditor no rights superior to any other creditor. Perkins v. Pike, xlii. 141. 
 Stedman v. Perkins, xlii. 130. 
 
 61. The general owner of a vessel by mortgage holds it equitably, sub- 
 ject to a lien for what, by accession, has vested in himself, and enhanced the 
 value of his interest in that of which it has become a part. Perkins v. Pike, 
 XLII. 141. 
 
 62. The lien of a common carrier, does not deprive the owner of the 
 goods of his right to immediate possession, as against a tort feazor. Ames 
 V. Palmer, xlii. 197. 
 
 63. A common carrier has the right to retain possession of the goods trans- 
 ported by him, until his reasonable charges are paid. Ames v. Palmer, xlii. 
 197. 
 
 ' 64. R. S. of 1841, c. 67, § 9, is not applicable to the case of a part/ 
 who aids in driving the intermingled logs of himself and another. It gives 
 no lien for such service. Lord v. Woodward, xlii. 497. 
 
 65. When the driving is the joint work of two or more owners, each may 
 recover of the other compensation for any excess of service beyond his equi- 
 table share ; but neither has a lien for such excess. Lord v. Woodward, 
 XLII. 497. 
 
 66. Under the Act of 1848, c. 72, the proceedings in regard to the debtor 
 are in personam ; but in regard to the general owner, when the laborer has 
 contracted with another person, the proceedings are strictly in rem. Bicknell 
 V. Trickey, xxxiv. 273. Bedington v. Frye, xliii. 578. 
 
 67. In order to secure a lien upon logs, under the Act of 1848, c. 72, the 
 attachment must be made by virtue of a legal precept, conferring the requi- 
 site authority upon the officer. Cunningham v. Buck, xliii. 455. Beding- 
 ton V. Frye, xliii. 578. 
 
 68. A declaration in common form on an account containing no allegation 
 of any claim upon the logs, in a precept not authorizing the officer to attach 
 the logs only, with a judgment and execution corresponding, will not author- 
 ize a sale of the logs upon such execution to satisfy a lien-claim. Cunning- 
 ham V. Buck, xliii. 455. Bedington v. Frye, xliii. 578. 
 
 69. To enforce a lien for services on logs., the property on which the labor 
 was performed should be specifically inserted in the writ, as the property to 
 be attached, and the officer therein ordered to attach it. Bedington v. Frye, 
 xliii. 578. 
 
 70. An ofiicer cannot regard the averments in the declaration, or the in- 
 dorsement of the attorney on the back of the writ, when inconsistent with 
 the express commands to him within directed. Bedington v. Frye, xliii. 
 578. 
 
 71. Until the Act of 1855, c. 144, the res could not be legally represent- 
 ed in Court. Under that Act, in order to preserve the lien on logs attached, 
 
356 LIENS. 
 
 the owners must have due notice of the pendency of the suit. Bedington 
 V. Frye, xliii. 578. 
 
 See Assumpsit, 8. 
 
 BANKKtrPTCT, 6, 7. 
 
 Iksoltent Estates, 3. 
 
 II. WAIVER OR EXTINGUISHMENT OF LIENS. 
 
 72. A lien, created hy contract, is not discharged by permitting the general 
 owner or his assignee to take possession of the property, if consistent with 
 the contract, course of business and intention of the parties. Spaulding v. 
 Adams, XXXII. 211. 
 
 73. Where one, entitled to a lien on property, acts inconsistently with the 
 preservation of his lien, the presumption is, that he has waived or abandoned 
 it, unless such acts be satisfactorily explained. Spaulding v. Adams, xxxii. 
 211. 
 
 74. If a creditor, in taking judgment for a lien-claim, include with it in the 
 judgment another claim to which no lien attached, the lien is thereby 
 waived and defeated. Lamhard v. Pike, xxxiii. 141. Spofford v. True, 
 xxxiii. 283. Bicknell v. Triclcey, xxxiv. 273. McGrillis v. Wilson, 
 ^:xxiT. 286. Johnson v. Pilce, xxxv. 291. Pearsons v. Tincher, xxxvi. 
 384. Bolinson v. Bunker, xxxtiii. 130. Perkins v. Pike, xiii. 141. 
 
 75. The consent of a commission merchant to become keeper, for the at- 
 taching officer, of the goods left with him for sale, does not defeat his right to 
 maintain replevin against such officer to secure his lien. Sewall v. Nichols, 
 xxxiT. 582. 
 
 76. The repeal of a statute, giving a lien on property, defeats the lien 
 remedy, although, at the time of the repeal, the statute proceedings for en- 
 forcing the lien had been instituted and were rightfully pending in Court. 
 Bangor v. Ooding, xxxv. 73. 
 
 77. Prior to the enactment of the Act of 1851, the acceptance of a nego- 
 tiable note for the amount of one's personal labor upon lumber, discharged 
 the lien. Gohurn v. Kerswell, xxxv. 126. 
 
 78. A lien for erecting or repairing buildings is lost, unless secured by at- 
 tachment within ninety days from the pay-day. Johnson v. Pihe, xxxv. 291. 
 
 79. The lien, for toll or boomage, given to the Penobscot Boom Corpora- 
 tion, is dissolved by a voluntary and unconditional delivery of the logs to the 
 owner. Huckins v. Gushing, xxxvi. 423. 
 
 80. Any lien for his advances, which may be given to the merchant upon 
 the outfits of a vessel for a fishing voyage, by him sold unconditionally to the 
 owner, is dissolved, when he parts with the possession of the property sold. 
 Folsom V. Mer. Mut. Mar. Ins. Go., xxxviii. 414. 
 
 81. For materials furnished under K. S. of 1841, c. 125, § 35, when sold 
 on time, which had not elapsed -vyhen the " four days after the vessel is 
 launched" have expired, the lien is waived. Scudder v. Balkam, xi. 291. 
 
 82. A lien may be waived or lost by voluntarily parting with the possession 
 of the goods. Danforth v. Pratt, xlii. 50. 
 
 83. It may be surrendered by agreement between the parties founded upon 
 valuable consideration. Danforth v. Pratt, xiii. 50. 
 
LIFE.— LIMITATIONS, STATUTE OF. 357 
 
 84. The verbal agreement, not executed, of an inn-keeper, to send home a 
 horse which he has kept and doctored, in consideration of an umvritten pro- 
 mise of a third party to pay the amount necessary to discharge the lien, is 
 not a waiver of his lien. Danforih v. Pratt, xiii. 50. 
 
 85. A. sold a quantity of iron to B., part of which was incorporated into a 
 vessel and the balance otherwise appropriated. A. afterwards recovered judg- 
 ment for the whole of the iron: — Held, that this was a waiver of the lien. 
 Taggard v. Buckmore, xiii. 77. 
 
 86. Where materials are furnished for the construction of a vessel, but be- 
 fore its completion, and before all of such materials have been wrought into 
 said vessel, the material man sues the vendee for the whole of said materi- 
 als : — Held, that the lien was waived. Perkins v. Pike, xlii. 141. 
 
 LIFE. 
 
 1. Ordinarily, in absence of evidence to the contrary, the continuance of 
 the life of an individual to the common age of man, will be assumed by pre- 
 sumption of law. Stevens v. McNamara, xxxyi. 176. 
 
 2. But, after an absence from his home, or place of residence, seven years, 
 without intelligence respecting him, the presumption of life will cease. Ste- 
 vens V. McNamara, xxxvi. 176. 
 
 3. These presumptions may be repelled; and the burthen of proof is -upon 
 the party asserting the facts. Stevens v. McNamara, xxxvi. 176. 
 
 LIMITATIONS, STATUTE OF. 
 
 I. IN GENERAL. 
 IL EXCEPTIONS, AND AVOIDANCE. 
 
 I. IN GENERAL. 
 
 (a) Peksokal actions. 
 
 (b) Actions against Executors and Adminisiratoes. 
 
 (c) Actions against Sheeipps. 
 
 (d) Penal actions. 
 
 (e) Computation op time. 
 
 (a) Personal actions. 
 
 judUt ^'Si;;? a?at"iSi4t ''''' '° '''^' '"' '°-^^ -^^' ^ 
 
 hiiwm^wWwV"' a forfeiture, incurred by a town for a defect in its 
 mghways whereby loss of hfe occurred, is not barred by R. S. of 1841, c. 
 
 limi'tiL ft to? "^ '' *° r ^'^'' ""' ^y *^^ letJ^ § °f the same hapter 
 limiting It to two years. State v. Bangor, xxx. 341. 
 
358 LIMITATIONS, STATUTE OF. 
 
 3. Though an action upon a note against the principal would be barred by 
 the statute, that limitation would be no bar to a suit against the principal for 
 reimbursement, brought by the surety, who had paid the note before the hm- 
 itation attached. Odell v. Dana, xxxiii. 182. 
 
 4. Actions on judgments of the County Commissioners are limited to six 
 years. Woodman v. Somerset Go. Com., xxxtii. 29. 
 
 5. In a suit upon a joint and several note, against the principal, and 
 amended under K. S. of 1841, c. 115, § 12, by making the surety a party 
 after six years from the time the cause of action accrued ; the surety may 
 interpose the statute of limitations as to himself. Woodward v. Ware, xxxtii. 
 563. 
 
 6. Whether such could be done had the contract been incapable of being 
 severed, quere. Woodward v. Ware, xxxvii. 563. 
 
 7. An indorsee of a witnessed note, made prior to the passage of the Act 
 of 1838, c. 343, may maintain an action after the passage of the Act, although 
 more than six years elapsed between the date of the note and the commence- 
 ment of the suit. Reed v. Wilson, xxxix. 585. 
 
 8. Towns may recover for supplies furnished a pauper, in an action com- 
 menced within two years after the expiration of two months from the giving 
 of the notice, wjiere no answer is returned. Bobbinston v. Lisbon, XL. 287. 
 Vide Limitation, 12. 
 
 9. But if an answer be returned within the time prescribed by the statute, 
 denying their liability, the action must be commenced within two years from 
 the return of the answer, or it is barred. Bobbinston v. Lisbon, xi. 287. 
 Vide Limitation, 12. 
 
 10. If one tenant in common, by agreement with a party having a claim 
 against owners of the common property, assumes the sole liability, and thereby 
 his co-tenants are discharged by such party, on the principle of novation, his 
 right to recover their proportion from his co-tenants is limited to six years from 
 the time they were discharged from the original claim, although he did not in 
 fact pay it then. Buck v. Spofford, xl. 328. 
 
 11. The payment of such claim by one tenant in common, after the statute 
 bar has attached, will not revive it against his co-tenant. Buck v. Spofford, 
 XL. 328. 
 
 12. The cause of action by one town against another, for the support of a 
 pauper, accrues at the time of the delivery of notice ; and the statute limita- 
 tion of two years begins then. Cutler v. Maker, xli. 594. Vide Limita- 
 tion, 8, 9. 
 
 See Action, 43. 
 
 Amendment, 33. 
 Bankeitptct, 15. 
 
 (b) Actions against executors and administrators. 
 
 13. Where a suit, commenced against an executor within four years of his 
 appointment, and, by mistake, the action is not entered, the party cannot 
 avail himself of R. S. of 1841, c. 146, § 12, and maintain a new suit, after 
 the four years. Packard v. Swallow, xxix. 458. 
 
 14. The four years limitation, mentioned in K. S. of 1841, § 29, applies 
 only to " suits brought," and not to proceedings in the Probate Court. Greene 
 V. Byer, xxxii. 460. 
 
LIMITATIONS, STATUTE OF. 369 
 
 15 Where an executor received moneys within four years from his appoint- 
 ment; coUected of the U. S. for aUeged claims of his testator against a for- 
 eien govemment, a part of which was claimed by the plamtiff, and that it 
 never was the property of the testator : -Held, that an action agamst the ex- 
 ecutor therefor could not be brought after the lapse of four years. Thurston 
 V. Lowder, XL. 197. 
 
 (c) Actions against sheriffs. 
 16. Where a sheriff served a replevin wit without having first taken a re- 
 plevin bond, and was afterwards sued for such deiault : — Seld, that the ac- 
 tion was barred by statute of 1821, c. 52, § 16, unless commenced within 
 four years from the time of the alleged service. Garlin v. Strickland, xxvii. 
 443. 
 
 (d) Penal actions. 
 
 17. R. S. of 1841, c. 146, limiting penal actions to one year, does not ap- 
 ply to suits, brought under c. 148, § 49, for aiding a debtor in the fraudulent 
 concealment of his property. Thacher v. Jones, xxxi. 528. 
 
 18. Prosecutions on penal statutes, in behalf of the State, are limited to 
 two years after the ofi'ence has been committed, where no exception is found 
 in the statute. State v. Hobls, xxxix. 212. 
 
 19. The time in which the offence of being a common seller, under Act of 
 1851, c. 211, may be prosecuted by indictment, is limited to two years. State 
 V. Gray, xxxix. 353. 
 
 (e) Computation of time. 
 
 20. F. conveyed land to S., and gave him an obligation, that if, at the end 
 of a year, the land should not be worth the money received therefor, with in- 
 terest, he would make up the deficiency, " or otherwise pay that amount up- 
 on receiving a re-conveyance." S., at the same time, gave F. a bond, that, 
 on being paid the said amount, at any time within the year, he would re-con- 
 vey the land: — Held, that, during the first year, S. could have no right of 
 action against P. on the obligation, because F. had the election to redeem 
 within the year ; but, at the end of the year, his right of action accrued, 
 and, therefore, the statute of limitations began from that period. Smith v. 
 Fishe, XXXI. 512. 
 
 21. In computing the four years, in which suits may be brought against 
 an executor, the period is not to be reckoned during which his ofiicial action 
 is suspended by an appeal from the decree appointing him to office. McPheters 
 V. Halley, xxxii. 72. 
 
 22. A memorandum and promise, in writing, by the makers of a note, to 
 pay it " in any time within six years" from the date of the writing, though 
 attested, is not a witnessed note, but is subject to the limitation bar of six 
 years. Young v. Weston, xxxix. 492. 
 
 23. Where a lunatic, taken up in a town in which he has no legal settle- 
 ment, is committed to the hospital, under the statute, the cause of action for 
 his _ support originates at the time payment is made to the hospital ; and the 
 limitation bar begins then. Hastport v. Machias, xi. 280. 
 
360 LIMITATIONS, STATUTE OF. 
 
 (f) Mortgages. 
 
 24. Twenty years undisturbed possession, by a mortgagee or his assignee, 
 operates as a bar to the right of redemption, unless the mortgager can bring 
 himself within the exception of the statute. Surd v. Coleman, xlii. 182. 
 
 n. EXCEPTIONS AND AVOIDANCE. 
 
 (a) Parties abroad. 
 
 (b) Attested note. 
 
 (c) Accounts. 
 
 (d) Concealment op cause op action. 
 
 (e) Commencement op Action. 
 
 (f ) Acknowledqment, waiver, or promise. 
 
 (g) Payment. 
 
 (h) Other things. 
 
 (a) Parties abroad. 
 
 25. To a note of hand, made in New Brunswick, to the plaintiff, who has 
 ever resided there, the maker, though having lived in this State eleven years, 
 cannot set up the statute of limitations. McMillan v. Wood, xxix. 217. 
 
 26. By the statute of limitations, a plaintiff may consider himself under a 
 disability to sue, while he is " without the limits of the U. S;" the statute, 
 therefore, makes an exception in his favor. Varney v. Grows, xxxvii. 306. 
 
 27. That disability ceases, however, upon his return to any port of the 
 U. S., however distant from the State of his domicil. Varney v. Grows, 
 xxxvii. 306. 
 
 28. The residence contemplated by R. S. of 1841, c. 146, § 28, is 
 synonymous with dwelling place or home. Drew v. Drew, xxxvii. 389, 
 Warren v. Thomaston, xliii. 406. 
 
 29. An absence from the State, though long continued, without evidence 
 of an abandonment of his home within it, will not prevent the attachment of 
 the statute. Drew v. Drew, xxxvii. 389. 
 
 30. The residence without the State must be an " established residence or 
 home." Bucknam v. Thompson, xxxviii. 171. 
 
 31. If, at the time a cause of action accrues against a debtor, he has a 
 home in this State, it remains such, though he is absent for special purposes, 
 and for periods which were definite as to time or purpose, so long as there 
 should remain the intention to return. Bucknam v. Thompson, xxxviil. 171. 
 
 (b) Attested note. 
 
 32. The statute of limitations is no bar to an action, brought in the name 
 of an indorsee, upon a witnessed negotiable promissory note. Stanley v. 
 Kempton, xxx. 118. 
 
 33. A payment, made upon a witnessed note, gives It new life for the next 
 twenty years. Estes v. Blake, xxx. 164. Howe v. Saunders, xxxviii. 350. 
 
 34. The remedy of the holder, in such case, is upon the note itself, and 
 not upon any implied promise, supposed to arise from such payment. Estes 
 V. Blake, xxx. 164. Vide Limitation, 3.8. 
 
LIMITATIONS, STATUTE OF. 361 
 
 q"; The exceDtion, in the statute of limitations, in favor of witnessed notes, 
 appfi;s oX toCos'e made payable in money unconditionaUy. Benn.U v. 
 
 Goodivin, XXXII. 44. . . -, j. r. , f 
 
 36 On a witnessed note, an action cannot he mamtained after the lapse ot 
 twenty years from the time it was made payable. Howe v. Saunders, 
 
 XXXVIII. 350. , ^^ J 1, 
 
 37 The presumption of payment after twenty years, may be rebutted by 
 any acts within that time. Sowe v. Saunders, xxxtiii. 350. 
 
 38 When the new promise is made or arises, after the right to maintain 
 a suit upon the original cause of action has been entirely extinguished, or 
 when the new promise varies from the original, there should be a count upon 
 the new promise ; and in other cases, the declaration may be upon the origmal 
 promise only. Howe v. Saunders, xxxviii. 350. 
 
 (c) Accounts. 
 
 39. In a suit upon a witnessed note, an account, barred by the statute, but 
 of about the' same date with the note, and larger in its amount, was filed in 
 &et-oS-— Held, that, as a set-off, the law would not sustain it, nor allow so 
 much of it to be proved as to balance the note. Neither will the law ap- 
 propriate the account to the payment of the note, nor presume, after any 
 lapse of time, that the plaintiff had so appropriated it. Nason v. McGulloch, 
 XXXI. 158. 
 
 40. The plaintiff cannot give in evidence a set-off, made and filed by the 
 attorney of the defendant, which was withdrawn by leave of Court, before 
 trial, for the purpose of showing charges made against him within six years 
 from the commencement of his action upon an account. Theobald v. Stinson, 
 XXXVIII. 149. 
 
 41. But, it seems, that if such set-off had been personally filed by the 
 defendant, or had been in his handwriting, the act done, and the contents of 
 the paper might be admissible. Theobald v. Stinson, xxxviii. 149. 
 
 42. Where the limitation has attached to all the items of the plaintiff's 
 account, he cannot revive it by showing ' some acts of labor performed by 
 defendant for him, within six years from the commencement of his action, un- 
 less there was some account made of it. Theobald v. Stinson, xxxviil. 149. 
 
 (d) Concealment of cause of action. 
 
 43. In a suit upon a contract, the plaintiff may be relieved from the statute 
 of limitations, by plea and proof, that the defendant fraudulently concealed 
 from him, the knowledge of the cause of action. McKown v. Whitmore, 
 XXXI. 448. 
 
 44. But that relief cannot extend to a plaintiff, who had direct and ample 
 means, in the exercise of ordinary prudence, to detect the fraud. McKown 
 V. Whitmore, xxxi. 448. 
 
 45. The adjustment of mutual accounts on settlement between the parties, 
 according to the book kept by plaintiff, in whjch, by mistake, an article had 
 been Avrongfully credited to the defendant, would not show such a fraud or 
 fraudulent concealment of the cause of action, as to avoid the statute. Brown 
 V. Edes, xxxvii. 318. 
 
 46. A portion of an account which had accrued more than six years prior 
 
 46 
 
362 LIMITATIONS, STATUTE OF. 
 
 to the commencement of the suit, was presented by plaintiff, a part owner of 
 a vessel, to the defendant, another part owner, for pajTnent ; when the latter 
 denied any o^vnership in the vessel: — Held, such denial not to be a fraudu- 
 lent concealment of the cause of action. Bouse v. Southard, xxxix. 404. 
 
 47. "Where a party relies upon an offer to prove a fraudulent concealment 
 of the cause of action, to avoid the limitation bar, such offer, in the report of 
 the Court, must clearly appear to have embraced all the statute requirements 
 in that particular. The time when the concealment was discovered must not 
 be left in doubt. Thurston v. Lowder, XL. 197. 
 
 (e) Commencement of Action. 
 
 48. The limitation bar is not suspended for six months, where the writ was 
 abated by reason of being brought in the vnrong county. Donnell v. Oatchell, 
 XXXVIII. 217. 
 
 See AciiONS, &c., 87 — 90. 
 Bond, 24. 
 
 (f ) Achnowledgment, waiver, or promise. 
 
 49. An agreement by the defendant, made since R. S. of 1841, c. 146, has 
 been in force, " to waive any defence he might have had by virtue of the 
 statute of limitations, and take no advantage of the same," will not take the 
 contract out of the statute, unless the . agreement be in writing and signed 
 " by the party chargeable thereby." JBodgdon v. Chase, xxix. 47. 
 
 50. A verbal promise, made by a debtor, in consideration of a pay-day ex- 
 tended, that he will not take advantage of the statute of limitations, will not 
 support an action brought upon the breach of such promise. Hodgdon v. 
 Chase, XXXII. 169. 
 
 51. Charges, made, annually by the treasurer against himself, in the cor- 
 poration books, for annual interest on funds borrowed, brought down to a pe- 
 riod within six years from the date of the writ, are recognitions of the debt, by 
 which the limitation bar is removed. Bluehill Academy v. Ellis, xxxii. 260. 
 
 52. The statute of limitations provides, that if there be two or more joint 
 contractors, no one of them shall be chargeable by reason only of any ac- 
 knowledgment or promise made by any other of them. Odell v. Dana, xxxiii. 
 182. Wellman v. Southard, xxx. 425. 
 
 53. And this applies to a note given by co-partners. True v. Andrews, 
 xxxv. 183. Wellman v. Southard, xxx. 425. 
 
 53. Neither wiU it make any difference, if the note was made prior to R. S. 
 of 1841, and the promise since. Wellman v. Southard, xxx. 425. 
 
 54. The statute bar will not be dislodged against the defendant, one of two 
 joint promisors, by proof, that he, within the last six years, included the note 
 in an unsigned schedule of his indebtedness, made by himself for his own use. 
 Neither would it affect any thing had it been signed. Wellman v. Southard, 
 xxx. 425. 
 
 55. E. and S., while co-partners, gave a joint and several note in their 
 individual capacities, for a partnership debt. E. sold all his interest in the 
 concern to N., who was to pay E.'s half of the debts. Within the last six 
 years, S. notified N., that the note in suit was justly due, and N. consented 
 it should be paid ; and, afterwards, S. collected sufficient of the company 
 
LIMITATIONS, STATUTE OF. 363 
 
 claims to pay the note and all other company debts : — Held, that these facts 
 removed the statute bar. Wellman v. Southard, xxx. 425. 
 
 56. A mere acknowledgment, made by an administrator of the intestate's 
 indebtedness, ■wiU not remove the statute bar. Bunker v. Athearn, xxxv. 
 364. 
 
 57. Neither will a written admission by the defendant, that " he does not 
 claim," and " never did own or claim" an article credited to him by mistake, 
 and that "he had never claimed any exemption from liability on account of 
 time." Brown v. Edes, xxxni. 318. 
 
 See Bills, &c., 98, 164. 
 
 (g) Payments. 
 
 58. Under R. S. of 1841, c. 146, § 24, a payment, made by one of two 
 joint promisors, in the presence of the other, is not evidence of a new promise 
 by both. Quimly v. Putnam, xxviii. 419. 
 
 59. But, before the enactment of that statute, it was otherwise. Patch v. 
 King, xxix. 448. 
 
 60. Upon a witnessed note, on ■which a partial payment has been made 
 "within twenty years, there arises no presumption of payment, from mere lapse 
 of time. Estes v. Blake, xxx. 164. 
 
 61. Since, as weU as before the R. S. of 1841, a new promise may be 
 implied from a partial payment upon a note. Sibley v. Lumbert, xxx. 253. 
 
 62. Such a payment, made within six years before the commencement of 
 the suit, will avoid the statute of limitations ; and it may be proved by parol. 
 Sibley v. Lumbert, xxx. 253. Evans v. Smith, xxxit. 33. 
 
 63. A partial payment of a witnessed note, by a co-promisor, before the 
 enactment of R. S. of 1841, removed the statute bar as to aU the makers, 
 and renewed it for twenty years after such payment. Ctjtiing, J., dissenting. 
 lAn. Academy v. Newhall, xxxviii. 179. 
 
 (h) Other things. 
 
 64. R. S. of 1841, c. 146, § 25, does not make the twenty years a bar, 
 but creates a presumption of payment, which may be rebutted. Brewer v. 
 Thames, xxviii. 81. 
 
 65. Evidence of the poverty of the debtor, a demand of payment by the 
 creditor, and an answer by the debtor, "that he would come up soon and do 
 somethmg about it," is sufficient to repel such presumption. Brewer v. 
 Thames, xxviii. 81. 
 
 66. An action upon a note, given by a person to the bankrupt, before the 
 decree of bankruptcy, is not limited by the eighth section of United States 
 Bankrupt Act of 1841, to two years. Carr v. Lord, xxix. 51. 
 
 67. The statute of limitations, of its own force, does not cut off claims, 
 unless It be presented to the Court as a defence. Ware v. Webb, xxxii. 41. 
 
 68. It is not necessary to allege in the declaration that the cause of action 
 accrued withm six years ; or that the note -was witnessed. Ware v Webb 
 xxxii. 41. 
 
 69 The limitation in section eight, of the Bankrupt Law of 1841, applies 
 to actions m the name of an assignee in bankruptcy, though brought whoUy 
 for the benefit of a third party. Pike v. Lowell, xxxii. 245. 
 
364 LIQUOR, SPIRITUOUS AND INTOXICATING. 
 
 70. It is the lex fori, and not tlie lex loci contractus, by which the plea of 
 a limitation-bar is to be adjudicated upon. Thibodeau v. Levassuer, xxxvi. 
 362. 
 
 71. Section eight of the Bankrupt Act of 1841, does not limit the assignee 
 to two years, in which to make conveyances of the real estate. Warren v. 
 Miller, XXXVIII. 108. 
 
 LIQUOK, SPIEITUOUS AND INTOXICATING. 
 
 I. CONTRACTS IN REGARD TO, AND CIVIL ACTIONS. 
 II. CRIMINAL PROCESSES, 
 ni. LICENSES AND AGENCIES TO SELL. 
 
 L CONTRACTS IN REGARD TO, AND CIVIL ACTIONS. 
 
 1. In an action of debt, under the Act of 1846, c. 205, in the name of the 
 inhabitants of a town, to recover a penalty for selling spirituous liquors, with- 
 out license, the selectmen's, clerk's and treasurer's approval, indorsed upon 
 the writ, and their personal presence at the trial, are sufficient authority to the 
 attorney to prosecute the suit. New Gloucester v. Bridgham, xxviii. 60. 
 
 2. The declaration is sufficiently specific as to time, if it allege that the 
 sale took place on the day named in a certain month ; and it is not necessary 
 that the act proved should be on the precise day alleged. New Gloucester 
 V. Bridgham, xxvili. 60. 
 
 3. If the declaration alleges that the defendant "did sell a quantity of 
 spirituous liquors, to wit ; one glass of rum," &c., enumerating one glass of 
 the several kinds of liquors, " and one glass of spirituous liquor, or a part 
 of which was spirituous, to certain persons unknown," and the proof was the 
 sale of one glass of gin, to a certain person named, an objection on this 
 ground can be taken advantage of only by demurrer. New Gloucester v. 
 Bridgham, xxviii. 60. 
 
 4. Where the statute penalty is from one to twenty dollars, and the parties 
 agree that the jury shall ascertain the amount to be recovered, and the Judge 
 admits evidence of other sales, with a view to enhance the penalty, against de- 
 fendant's objection, the defendant cannot be considered as aggrieved by the 
 admission of such evidence. New Gloucester v. Bridgham, xxviii. 60. 
 
 5. On cross-examination by the defendant, the Judge, in the exercise of a 
 sound discretion, may rigntly permit an inquiry to a witness for his reasons 
 why he did certain acts, to test the accuracy of his recollection, or to affect 
 his credibility, although it may have no direct tendency to support or disprove 
 the issue. New Gloucester v. Bridgham, xxviii. 60. 
 
 6. Where the declaration alleges that the plaintifis, being inhabitants of a 
 town, " prosecute this action by" certain persons named, one of the persons 
 so named does not thereby become a party to the suit, and, hence, incompe- 
 tent as a witness. And, if he did, he is rendered competent by the statute. 
 New Gloucester v. Bridgham, xxviii. 60. 
 
 7. The declarations of the defendant, that he had kept and would keep 
 spirituous liquors for sale, although they did not immediately accompany the 
 
'LIQUOK, SPIRITUOUS AND INTOXICATING. 365 
 
 act of sale, as proved, are admissible. New Gloucester v. Bridgham, xxyiii. 
 60. 
 
 8. A contract, in violation of a statute, when introduced as evidence of 
 a right to recover thereon, may be effectually resisted by a party or privy to 
 it, but not by a stranger. Elhworih v. Mitchell, xxxi. 247. 
 
 9. Where a mortgage is made to secure a claim, void by statute, and a 
 subsequent mortgage is made to another person, to secure a lawful debt, the 
 receiving of the money by the first mortgagee, for his claim, wiU not subject 
 him to an action by the subsequent mortgagee to recover such money. Ells- 
 worth V. Mitchell, XXXI. 247'. 
 
 10. A prosecution for unlawfully selling spirituous liquor may be by civil 
 action or by complaint. Bicker, pet'r, xxxii. 37. Hanson, petW, xxxti. 
 425. 
 
 11. The Act of 1846, c. 205, § 2, does not prohibit actions of trover for 
 the unlawful conversion of liquor. Sullivan v. Park, xxxrii. 438. 
 
 12. The fact, that the defendant made the sale as the servant of another 
 person, is no defence to a suit to recover a penalty incurred under that Act. 
 Bolerts V. 0' Conner, xxxiii. 496. 
 
 13. A contract, legally made in another State, may be enforced in this State, 
 when, by its laws, it would have been illegal. Torrey v. Corliss, xxxiii. 333. 
 
 14. The Act of 1851, c. 211, is prospective only, because it does not con- 
 tain any clearly expressed intention that it shall be retroactive. Torrey v. 
 Corliss, XXXIII. 333. 
 
 15. In an action under the Act of 1846, c. 205, originated before a magis- 
 trate, no appeal lies from the District Court to this Court. Boherts v. 0' Con- 
 ner, XXXIII. 496. 
 
 16. Notwithstanding the Act of 1851, c. 211, § 16, an action at law may 
 be maintained for liquors, when not liable to seizure and forfeiture, or intend- 
 ed for sale in violation of law. Preston v. Drew, xxxiii. 558. Nichols v. 
 Valentine, xxxvi. 322. Jones v. Fletcher, xxi. 254. Bolan v. Buzzell, 
 XLi. 473. Lord V. Chadhourne, xlii. 429. 
 
 17. In a written contract for the sale of all the stock of goods in an apothe- 
 cary's store, the spirituous liquors within the store and belonging to the vend- 
 or, are, ex vi terminorum, included. Ladd y. Dillingham, xxxiv. 316. 
 
 18. If the vendor had no license to sell such liquors, the contract caimot be 
 enforced against the vendee. Ladd v. Dillingham, xxxit. 316. 
 
 19. The making of a separate schedule of the liquors, by direction of both 
 parties, if designed as an evasion of the statute, cannot make the contract 
 effectual as to the other goods. Ladd v. Dillingham, xxxiv. 316. 
 
 20. The law prohibits a sale of spirituous liquors at auction, and hence they 
 cannot be attached. Nichols v. Valentine, xxxvi. 322. 
 
 21 When a penalty is recovered by an action before a magistrate, under 
 the Act of 1851, c. 211, the judgment is to be enforced by execution. Han- 
 son, pet r, XXXVI. 425. 
 
 22. In such case, the issuing of a mittimus for commitment is unauthorized. 
 Hanson, pet r, xxxvi. 425. 
 
 23. In a suit against a co-partnership, to recover back money paid for 
 liquors lUegaUy sold, the proof of the illegal sale is insufficient, if one of the 
 co-partners had hcense to seU, unless it be shown that the sale was made by 
 
366 LIQXJOE, SPIRITUOUS AND INTOXICATING. • 
 
 the other. Rice and Hathaway, J. J., dissenting. Wehher v, WilUami, 
 xxxTi. 512. 
 
 24. In such case, the presumption of law is, that the sale was made hy the 
 co-partner who had a right to make it. Webber v. Williams, xxxvi. 512, 
 
 25. By the Act of 1846, c. 205, § 10, no action could be maintained upon 
 any claim or demand in whole or in part for spirituous liquors, sold in viola- 
 tion of law. Cochrane v. Glough, xxxviii. 25. 
 
 26. Where some of the items of an account in suit were for such liquors, 
 and, on trial, hy leave of Court, were stricken out, and no exceptions taken 
 to such amendment, a legal judgment may be rendered for the remainder. 
 Cochrane v. Clough, xxxTiii. 25. 
 
 27. Under the last mentioned Act, no warrant can issue for the seizure of 
 the vessels containing liquors designed for illegal sale. Blade v. McGilvery, 
 XXXVIII. 287. 
 
 28. Where a town, under Act of 1851, c. 211, institutes a suit to recover 
 the value of liquors sold by their agent, it is essential that they show, hy legal 
 evidence, that he was their legal agent. Foxcroft v. Crooher, XL. 308. 
 
 29. The original bond and certificate or a properly certified record are the 
 legal evidence required. Foxcroft v. Groolcer, XL. 308. 
 
 30. An action cannot be maintained in this State, under the Act of 1851, 
 0. 211, for the price of intoxicating liquors. Dearborn v. Soit, XLI. 120. 
 
 31. The appointment of the plaintifi', as agent of the town to sellliquors, 
 gives him no rights in the maintenance of an action against an officer for 
 seizing such liquors, so long as the latter, being an officer, was bound to exe- 
 cute the warrant and was protected therein. Gray v. Kimball, xlii. 299. 
 
 See Attachment, 8. 
 
 Constitutional Law, 22, 24, 25, 26, 30, 37, 40, 41. 
 
 n. CRIMINAL PROCESSES. 
 
 (a) 
 
 Acts op 18i6 & 1848. 
 
 W 
 
 Act- OP 1851. 
 
 (c) 
 
 Act op 1853. 
 
 (d) 
 
 Act op 1855. 
 
 (e) 
 
 Act op 1856. 
 
 (a) Acts of 1846 d; 1848. 
 
 32. A warrant, under Act of 1846, c. 205, may be lawfully executed on 
 the Lord's day, although, perhaps, subject to the limitation, that it should not 
 be an unnecessary act, to be done on that day. Keith v. Tuttle, xxviii. 
 326. 
 
 33. Such persons as were called by him, to aid and assist him in the service 
 of such warrant, might, nevertheless, be excusable, whether the act was 
 unnecessary or not. Keith v. Tuttle, xxvill. 326. 
 
 34. The intention of the Act of 1846, c. 205, is to forbid the sale, 
 •without a license, of domestic spirituous liquors, in any quantity; and of 
 foreign spirituous liquors, in any less quantity than is allowed to be imported 
 by the laws of the U. S. State v. Crowell, xxx. 115. 
 
 35. If, therefore, a complaint allege a sale in a less quantity than the 
 
LIQTJOB, SPIRITUOUS AND INTOXICATING. 367 
 
 revenue laws prescribe, it need not specify whether the liquor was or was not 
 imported. State v. Crowell, xxx. 115. 
 
 36 Under this Act, it is not necessary to allege in the complaint, nor 
 prove by whom the defendant made the sale. State v. Stewart, xxxi. 515. 
 State V. Brown, xxxi. 520. 
 
 37 Whether wine be a spirituous liquor is a question of fact, unless the 
 Act was designed to include it among spirituous liquors. Of which, quere. 
 State V. Stewart, xxxi. 515. 
 
 38. When intoxicating liquor is furnished by one party to another, it is 
 the province of the jury to find whether there was a sale. State v. Green- 
 leaf, XXXI. 517. 
 
 39. In a prosecution for such sale, the declarations of the defendant, sub- 
 sequently made, as to his intentions, are not admissible. State v. Greenleaf, 
 XXXI. 517. 
 
 40. The legal principle, that pay for such liquors, sold in violation of the 
 statute, cannot be collected by law, furnishes no defence, in such a prosecu- 
 tion. State V. Oreenleaf, xxxi. 517. Emerson v. Nolle, xxxii. 380. 
 
 41. Nor the fact, that the liquor was sold and used solely for medicinal 
 purposes, if the defendant had no license. State v. Brown, xxxi. 522. 
 
 42. The exception, in the first section of this Act, is sufficiently negatived 
 by an averment that the liquor was not imported into the United States from 
 any foreign port or place. State v. Brown, xxxi. 522. 
 
 43. A prosecution for unlawfully selling spirituous liquor may be by civil 
 action or by complaint. Richer, pet'r, xxxii. 37. Hanson, petW, xxxvi. 
 425. 
 
 44. In case of conviction, it is not necessary that the magistrate wait 
 forty-eight hours to give opportunity of appeal. It may be made after com- 
 mitment. Eicher, pet'r, xxxii. 37. 
 
 45. The penalty for a second ofi'ence belongs to the State. That the mag- 
 istrate awarded one-half of it to the prosecutor, furnishes to the ofiender no 
 just ground of complaint. Bicker, petW, xxxii. 37. 
 
 46. Costs may be awarded, in addition to the penalty, in such cases. Bick- 
 er, pet'r, xxxii. 37. 
 
 47. The penalty for selling prohibited liquor, without license, may be in- 
 curred, although the sale was upon credit, and although the law furnishes to 
 the seller no means of enforcing payment. Emerson v. Nohle, xxxii. 380. 
 
 48. A conviction for presuming to be a common seller of intoxicating 
 liquors,, within a specified period, is not a bar to a prosecution for a single 
 sale within the same period. State v. Coombs, xxxii. 529. State v. Maher, 
 XXXV. 225. 
 
 49. Where the appropriate record shows that the authorities have licensed 
 the maximum number of persons allowed by law for selling intoxicating 
 liquors, and does not show that any additional number has been licensed, the 
 defendant's production of an unrecorded license is no defence. State v. 
 Shaw, XXXII. 570. 
 
 50. By the Act of 1846, c. 205, the sale of "spirituous" liquors was re- 
 stricted. By the Act of 1848, the sale of " intoxicating" liquors was restrict- 
 ed. The repeal of the Act of 1848, by that of 1851, c. 211, § 18, does not 
 defeat prosecutions under the Act of 1846, for the sale of spirituous liquors. 
 Parsons v. Bridgham, xxxjv. 240. 
 
 See Bills, &c., 44. 
 
368 LIQUOR, SPIRITUOUS AND INTOXICATING. 
 
 (b) Act 0/1851. 
 
 51. To obtain a forfeiture under the Act of 1851, c. 211, it must be alleged 
 in the complaint and proved, that the liquors were intended for sale in the 
 city or town in which they were kept or deposited, and by some person not 
 authorized so to do. State v. Gurney, xxxiii. 527. State v. Bohinson, 
 XXXIII. 564. McGlinchy v. Barrows, xli. 74. 
 
 52. A complaint, charging the crime of having sold a quantity of spirituous 
 liquor at S., in the county of Y., on a certain day named, to wit, one glass of 
 brandy to one M. L., of said S., charges no offence. State v. Lane, xxxiii 
 536. 
 
 53. The Act of 1851, though it provides for the seizure and forfeiture of 
 liquors when designed for sale, does not enact that no property can be acquir- 
 ed in them when not designed for unlawful sale ; but recognizes them as sub- 
 jects of property, wheij kept for certain purposes. Preston v. Drew, xxxiii. 
 558. 
 
 54. The prohibition to sell such liquors does not prevent the acquisition of 
 property in them, or the transport of them through the State, when not de- 
 signed for unlawful sale. Preston y. Brew, xxxiii. 558. 
 
 - 55. It is not necessary, under this Act, to aver or prove that liquors were 
 intended for sale in the shop, or other building, wherein they were kept or 
 deposited. State v. Rolinson, xxxiii. 564. 
 
 56. The requirement of the Constitution in reference to search-warrants, 
 that " a special designation of the place to be searched" shall he made, is 
 not answered by words, which, if used in a conveyance, would not convey it, 
 and which would not confine the search to one building or place. State v. 
 Bohinson, xxxiii. 564. Jones v. Fletcher, xli. 254. 
 
 57. An article to be searched for may be described in the warrant, simply 
 by its generic name, if it be destitute of any peculiar and known marks or 
 qualities, by which it can be distinguished. State v. Bohinson, xxxiii. 564. 
 
 58. The officer's return, which omits to state how long the liquors had 
 been advertised, or that the notice posted contained the number or any de- 
 scription of the packages, is too defective to authorize a decree of forfeiture. 
 Staie V. Bohinson, xxxiii. 564. 
 
 ' 59. Where a claimant appears, legal proof that the liquors were kept for 
 sale by the owner or keeper is an essential prerequisite to a decree of for- 
 feiture, and to the imposition of a fine. And neither the afiidavit in the 
 complaint, nor the recitals in the warrant, nor the officer's return, can be 
 taken as evidence upon that point. State v. Bohinson, xxxiii. 564. 
 
 60. When the complaint names no person as the owner, keeper or claim- 
 ant of the liquors, the swearing of the jury in the form of a criminal trial is 
 irregular. The finding that the defendant is guilty would be merely void, 
 there being no issue upon which it could rest. State v. Bohinson, xxxiii. 
 564. 
 
 61. In a prosecution by the State, an inhabitant of the to^vn to which the 
 law appropriates the penalty, if recovered, is a competent witness for the 
 State. State v. Woodward, xxxiv. 293. 
 
 62. In such prosecution, if the defendant relies on a license for the sale, 
 the onus is upon him. State v. Woodward, xxxit. 293. 
 
 63. In a criminal prosecution for presuming to be a common seller, proof 
 that the defendant had a license as an inn-holder, and as a common victualer, 
 establishes no defence. State v. Woodivard, xxxit. 293. 
 
LIQUOR, SPIRITUOUS AND INTOXICATING. 369 
 
 64. An indictment, charging that the accused was a common seller, &c., 
 " without any lawful authority, license or permission," sufficiently negatives 
 the exception in the statute. State v. Keen, xxxiv. 500. 
 
 65. The liability of an agent to a revocation of his appointment, and to a 
 suit upon his bond, would constitute no protection from the penalty of the 
 8th sect, of the Act, if he should wilfully become a common seller. State v. 
 Keen, xxxiv. 500. 
 
 66. It is not a fatal objection to a complaint, that it employs Arabic nume- 
 rals, or long used and well understood abbreviations, to express the time when 
 the offence was committed, or the complaint made and sworn to. State v. 
 Beed, xxxv. 489. 
 
 67. The term " one glass" is a sufficient designation of the quantity sold. 
 State V. Beed, xxxv. 489. 
 
 68. A judgment under this Act is reversable for error, if neither the com- 
 plaint nor the judgment shows that the liquors were intended for sale in the 
 city, town or place where they were kept or deposited. Barnett v. State, 
 XXXVI. 198. 
 
 69. In this State, an indictment regards only the laws of the State, against 
 which the oifence is committed. It is not necessary to negative possible and 
 contingent defences, which may arise under the statutes of the U. S. or under 
 its treaties. These are matters of defence. State v. Gurney, xxxvii. 149. 
 State V. Bohinson, xxxix. 150. 
 
 70. A magistrate might sentence the owner or keeper of liquors " to stand 
 committed for thirty days in default of payment" of the fine imposed, but not 
 to be " imprisoned until he pay the fine or be otherwise discharged by due 
 course of law." Gurney v. Tufts, xxxvii. 130. 
 
 71. So much of § 6, c. 211, of Act of 1851, as requires the respondent to 
 give bond, &c., " before his appeal shall be allowed," is unconstitutional. 
 Saco V. Wentworth, xxxvir. 165. 
 
 72. Hence the bond is void. Saco v. Wentioorth, xxxvii. 165. 
 
 73. In an indictment, charging the defendant as a common seller, it is not 
 necessary to aver that they were not imported, &c., or sold in the importation 
 packages. State v. Gurney, xxxvii. 149. 
 
 74. It is competent for the Legislature to regulate the sale of an article, of 
 which the use would be detrimental to the morals of the people. State y. 
 Gurney, xxxvii. 156. Preston v. JDreiv, xxxiii. 558. 
 
 75. On an appeal from the sentence of a magistrate, imposing a lawful 
 penalty for a specified offence, it is not competent for the Legislature to re- 
 quire any increase of the penalty to be imposed by the appellate court after 
 conviction by the jury. State v. Gurney, xxxvii. 156. 
 
 76. So much of the sixth section of the Act of 1851 as requires such increase 
 is unconstitutional and void. State v. Gurney, xxxvii. 156. 
 
 77. If, however, the defendant, in taking an appeal, acquiesce in the re- 
 quirements of that Act, he cannot afterwards avail himself of their uncon- 
 stitutionality, or deny the validity of the appeal. State v. Gurney, xxxvii. 
 156. 
 
 78. Such increase of the penalty being unconstitutional and void, the 
 appellate Court, after conviction, may rightfully enforce the appropriate penal- 
 ty, which the magistrate imposed. State v. Gurney, jlxxyu. 156. 
 
 79. The requirement, that the appellant from a justice of the peace, on con- 
 
 47 
 
310 LIQUOR, SPIEITtJOUS AND INTOXICATING. 
 
 viction in the higher Court, shall pay and suffer double the amount of fines, 
 penalties and imprisonment awarded against him by the former tribunal, has 
 no reference to the costs of the prosecution taxed before such justice. Lord 
 V. State, XXXVII. 177. 
 
 80. In a complaint for violating section four, it is lawful to insert two or 
 more offences of the same nature, in different counts. Lord v. State, xxxvii 
 177. 
 
 81. The Act of 1851, c. 211, § 5, makes it the duty of the mayor and 
 aldermen of a city to commence suits in behalf of the city against any per- 
 sons guilty of violating any of the provisions of that Act, " on being informed 
 of the same, and being furnished with proof of the act." Such acts, as 
 authorized the commencement of the suit, are not required to be proved to 
 the Court before the suit can be prosecuted in the name of the city. Portland 
 V. Bolfe, XXXVII. 400. 
 
 82. Neither a physician nor an apothecary, unless appointed by the town 
 as an agent, under this Act, was authorized to sell spirituous liquors for 
 mixture with medicinal ingredients by the purchaser, although the medicines 
 were purchased at the same time with the liquor. State v. Hall, xxxix. 107. 
 
 83. This Act forbids the sale of spirituous and intoxicating liquors in any 
 quantity, whether imported or domestic, without license. State v. Mohimon, 
 XXXIX. 150. 
 
 84. In an indictment against a common seller, averments that the liquors 
 were sold " by retail and in less quantities than the revenue laws prescribe," 
 &c., may be rejected as surplusage. State v. Bohinson, xxxix. 150. 
 
 85. Without proof direct or tending to establish that the sales were by the 
 importer, or of imported liquors in the original packages, the Judge may with- 
 hold instructions as to the law in that particular. State v. Bohinson, xxxix. 
 150. 
 
 86. Section sixteen of this Act, providing that no action of any kind shall 
 be maintained in this State "for recovery or possession of spirituous liquors 
 or the value thereof," the same being kept for sale in violation of law, is con- 
 stitutional. Thurston v. Adams, xli. 419. 
 
 87. A mere intent to sell property in violation of law, which may be law- 
 fully used, does not subject the property to forfeiture, at common law, nor 
 deprive the owner of his proper remedy against persons illegally interfering 
 "with it. Dolan v. Buzzell, xli. 473. 
 
 88. Section sixteen of this Act, so far as it applied to actions for the re- 
 covery of liquors, or the value of liquors, not liable to seizure or forfeiture, or 
 not intended for sale in violation of law, was unconstitutional. Dolan v. 
 Buzzell, XLI. 473. 
 
 See Bills, 65c., 46. 
 
 (c) Act of 1853. 
 
 89. It is no defence to a prosecution, under this Act, against an agent for 
 selling to a minor, that the liquor was sent for with the money, by a third 
 person, to whom it might lawfully have been sold, and that the agent was so 
 informed when he delivered it to the minor. State v. Fairfield, xxxvii. 517. 
 
 90. A magistrate has no authority to issue a warrant to search a dwelling- 
 house, for liquors alleged to be kept for illegal sale, unless it shall first be 
 shown to him by the testimony of witnesses, reduced to writing and verified 
 
LIQUOB, SPIRITUOUS AND INTOXICATING. 371 
 
 by oath, that they have reasonable ground for believing that such liquors are 
 there kept for illegal sale. And such must appear from the complaint or war- 
 rant. State V. Staples, xxxvii. 228. State v. Carter, xxxix. 262. Jones 
 V. Fletcher, xii. 254. 
 
 91. Delivery of the article is sufficient evidence of sale. State v. Favrfleld, 
 xxxYii. 517. 
 
 92. Under section eleven of this Act, it must appear that a shop or other 
 place is kept for the sale of liquors " in" that part of the building used as a 
 dwellinghouse, vfithout which allegation no warrant could be issued to search 
 the dwellinghouse, without the preliminary testimony having first been taken 
 as prescribed in said section. State v. Spencer, xxxviii. 30. McQUnchy 
 V. Barrows, xli. 74. 
 
 93. It is unnecessary to set forth in the indictment the record in full of a 
 previous conviction for a similar offence. It maybe briefly stated, and the 
 identity of the respondent with the one formerly convicted is a matter for the 
 jury. State v. Boiinson, xxxix. 150. 
 
 94. And if the former conviction was upon the plea of nolo contendere, it 
 is sufficient. State v. Bohinson, xxxix. 150. 
 
 95. So much of the thirteenth section of this Act as requires the giving of 
 a bond, as therein provided, is unconstitutional and void. Saco v. Woodsum, 
 XXXIX. 258. I 
 
 96. And any sale of spirituous or intoxicating liquors by the principal, 
 during the pendency of the appeal, creates no liability on the part of the 
 obligors. Saco v. Woodsum, xxxix. 258. 
 
 97. But where an action is commenced upon such bond, and the selectmen 
 of the town interested indorsed upon it their approval of the suit, no costs 
 are recoverable by the defendants. Saco v. Woodsum, xxxix. 258. 
 
 98. The owner of spirituous liquors, seized by virtue of a warrant, in due 
 form, against him, under this Act, cannot replevy them from the possession 
 of the officer who executed it. Musgrave v. Hall, XL. 498. 
 
 99. A warrant to search the dwellinghouse of a person only authorizes the 
 officer to search the house in which such person lives ; and, if he searches a 
 house, hired and occupied by another, though owned by such person, he is 
 guUty of trespass. McGlinchy v. Barrows, xii. 74. 
 
 100. An officer, acting under a proper warrant for the search of liquors, is 
 justified in forcibly breaking and opening the depot of a railroad, in which 
 the liquors are stored, after the usual time for receiving and delivering goods 
 at the depot, if necessary to the execution of the warrant. Androscoggin B. 
 B. Go. V. Bichards, xli. 233. 
 
 101. Neither is it necessary for the officer first to ask permission, of the 
 person having charge of the depot, to enter and search it. Androscoggin B. 
 B. Go. V. Bichards, xli. 233. 
 
 102. Liquors, though belonging to a town, are not protected against seizure 
 and forfeiture, under this Act, unless the casks and vessels in which they are 
 contained are plainly and conspicuously marked with the name of the town 
 and its agent. Androscoggin B. B. Co. v. Bichards, xli. 233. 
 
 103. A warrant, commanding an officer to search for liquor in a dwelling- 
 house, does not authorize him to search in a barn. Jones v. Fletcher, xli. 
 254. 
 
 104. There may be cases in which one may be prosecuted and tried for 
 acts which he never committed, but which were done by another. And laws 
 
372 LIQUOE, SPIRITUOUS AND INTOXICATING. 
 
 authorizing proceedings in rem may be enforced against the.property seized, 
 without the knowledge of the real owner. Gray v. Kiniball, xlii. 299. 
 
 105. For form of complaint sufficient to authorize subsequent proceedings 
 under this Act, see xlii. 301. 
 
 (d) Act of 1855. 
 
 106. The repeal of this Act takes from the Court all power to render 
 judgment, or to pass sentence, against any one charged with an offence under 
 it. State V. Boies, xxi. 344. 
 
 107. But where one had appealed from a decision rendered under it, and 
 had recognized, he is liable if the appeal be not en^tered ; the forfeiture claim- 
 ed under the recognizance being no part of the punishment for the offence. 
 State V. Boies, xil. 344. 
 
 108. The right to enforce the recognizance does not depend upon the guilt 
 or innocence of the accused. State v. Boies, xli. 344. 
 
 109. The remedy authorized by this statute, for a breach of the condition 
 of the recognizance, is cumulative. State v. Boies, xli. 344. 
 
 110. The Act of 1855, c. 166, does not expressly give justices of the 
 peace jurisdiction to convict and sentence offenders under the 2d section of 
 the Act. And such jurisdiction cannot be implied. Sersom, pet'r, xxxix. 
 476. 
 
 111. The general jurisdiction of justices of the peace, in criminal prose- 
 cutions, is to impose a fine not exceeding ten dollars, but they have no au- 
 thority to imprison. Sersom, pet'r, xxxix. 476. 
 
 112. A provision authorizing an appeal from the decision of a Court, in 
 criminal cases, cannot give the tribunal from which the appeal is allowed to 
 be made, jurisdiction in all such cases. Sersom, peCr, xxxix. 476. 
 
 113. By § 14, c. 167, of R. S. of 1841, all fines and forfeitures given or 
 limited by law, in whole or in part, to the use of the State, may be recovered 
 by indictment in the District Court, " when no other mode is expressly pro- 
 vided." Sersom, pet'r, xxxix. 476. 
 
 114. Actions, indictments and processes pending at the time of the pas- 
 sage of this Act, are clearly saved from the operation of the repeal of former 
 Acts therein specified. Gray v. Kimball, xlii. 299. 
 
 (e) Act of 1856. 
 
 115. The allegations in an indictment, that the defendant, not being 
 licensed to sell intoxicating liquors, nor to keep an inn, did sell intoxicating 
 liquors, and allowed the same to be drank within the place where the same 
 was sold, which place was at the time under his fcontrol, necessarily import a 
 violation of the Act of 1856, c. 255, § 16. State v. Badlock, xliii. 282. 
 
 ni. AGENTS AND AGENCIES TO SELL. 
 
 116. Under the Act of 1846, a license to sell liquor is of no validity if 
 granted before the delivery, to the town treasurer, of the bond prescribed by 
 law. Staie v. Shaw, xxxii. 570. 
 
 117. The licensing board, in absence of the clerk, chose one of the select- 
 
LOGS AND LUMBER. 373 
 
 men clerk, pro tempore, by whom a record was kept, when they issued a 
 license: — Held, that the board, so composed, was not competent to issue a 
 license. State v. Shaw, xxxil. 570. 
 
 118. An agent, duly appointed under the Act of 1851, whose agency con- 
 tinued after the Act of 1853 took effect, is subject to the limitations of the 
 latter Act. State v. Fairfield, xxxvii. 517. 
 
 119. Such agent is liable to the penalty therein imposed, for selling liquors 
 to a minor, knowing him to be such, without the written order of his parent 
 or guardian. Staie v. Fairfield, xxxvii. 517. 
 
 120. Under the Act of 1853, the fact that one is the duly appointed agent 
 of the town furnishes no protection against prosecutions for selling liquor, if 
 the property and the profits of selling it are his. State v. Putnam, xxxTlll. 
 296. 
 
 121. Under the Act of 1851, c. 211, neither a physician nor an apothecary 
 was authorized to seR spirituous liquors for mixture with medicinal ingredients 
 by the purchaser, although the medicines were purchased at the same time 
 with the liquor, unless appointed by the town as an agent. State v. Sail, 
 XXXIX. 107. 
 
 122. To constitute a person an agent of a town for selling intoxicating 
 liquors, under the Act of 1851, c. 211, it must be shown that the requisite 
 bond has been given, and that he has received a certificate of his appoint- 
 ment fi-om the proper authorities. Foxcroft v. Crooker, xx. 308. 
 
 123. The appointment of the plaintiff as agent of the town to sell liquors, 
 gives him no rights in the maintenance of an action against an officer for 
 seizing such liquors, so long as the latter, being an officer, was bound to 
 execute the warrant, and was protected therein. Gray \. Kimball, xlii. 
 299. 
 
 LIVEKY STABLE KEEPER. 
 See Lien, 36. • 
 
 LOGS AND LUMBER. 
 
 1. Logs, owned by one person, cannot be seized, libeled and sold, under 
 R, S. of 1841, c. 67, § 9, to pay, not only the expense incurred in driving 
 them, but also the expense of driving, at the same time, the logs owned by 
 another person. If the owner cannot be ascertained, the whole of the logs, 
 on which the expense has been incurred, is to be seized and libeled. There- 
 fore, when different lots of logs, designated by different marks, appear by the 
 libel to have been driven together, and a portion only appears to have been 
 seized and libeled, without any designation of the lot, or lots, from which it 
 was selected, to pay the whole expense, such libel is bad on demurrer. Marsh 
 V. Flint, XXVII. 475, 
 
374 LOGS AND LUMBER. 
 
 2. So is the libel bad, if it merely allege " that the o-svners of said marks 
 of logs, &c., are unknoiim," instead of, that the " owners of such logs cannot 
 be ascertained." Marsh v. Flint, xxvii. 475. 
 
 3. So, also, if there be an omission to allege, in substance, that the libelant 
 had caused " an inventory and appraisement of the same to be made by three 
 disinterested persons, under oath, appointed by a justice of the peace of the 
 same county." Marsh v. Flint, xxvii. 475. 
 
 4. The doctrine of " confusion of goods" may apply to mill logs, lumber, 
 shingles, rails or ship knees. Sesaeltine v. Stockwell, xxx. 237. Bryant 
 V. Ware, xxx. 295. 
 
 5. As, when the intermixture is such that each one's property can no longer 
 be distinguished. Hesseltine v. Stockwell, xxx. 237. Bryant v. Wan, 
 xxx. 295. 
 
 6. When there has been a confusion of goods, the common law assigns the 
 ■whole property to the innocent party, without liability to account, except in 
 certain cases and conditions of the property. Hesseltine v. Stockwell, xxx, 
 237. Bryant v. Ware, xxx. 295. 
 
 7. There is no forfeiture, if the goods have been intermixed without fraud. 
 Hesseltine v. Stockwell, xxx. 237. Bryant v. Ware, xxx. 295. 
 
 8. And, even-in cases of fraudulent intermixture, there is no forfeiture, if 
 the goods be of equal value. Each owner is entitled to his proportion of 
 the whole. Hesseltine v. Stockwell, xxx. 237. 
 
 9. If logs, belonging to the plaintiff, have been wrongfully intermixed with 
 those belonging to another person, so as to form an aggregate lot, in which 
 the logs of the plaintiff cannot be distinguished from the others ; and if a 
 detached parcel of such aggregate lot have afterwards come into the hands 
 of a third person, it cannot be laid down, as matter of law, that a confusion 
 of goods has not occurred, or that the plaintiff, in order to recover against 
 such third person in trover, is bound to prove his original ownership in any 
 of the logs constituting such detached parcel. Hesseltine v. Stockwell, xxx. 
 237. 
 
 10. Where lumber was cut, upon two tracts of adjoining lands of different 
 owners, by a trespasser, and the whole was so intermixed, by him or persons 
 claiming under him, that the part belonging to each owner could not be dis- 
 tinguished, and the owner of one tract seized and took possession of the 
 whole: — Held, ihsX one claiming under the wrongdoer could not maintain- 
 an action of trespass against him for such taking. Bryant v. Ware, xxx. 
 295. 
 
 11. Any owner who is compelled, under R. S. of 1841, c. 67, § 9, to drive 
 the logs of other persons, as well as his own, is bound, in selecting the time 
 for driving, and in all other particulars in which the rights of others are in- 
 volved, to exercise good faith, sound discretion and prudent management. 
 Foster v. Gushing, xxxv. 60. 
 
 12. Having thus proceeded, he may recover of the others a reasonable 
 compensation ; and it is no defence that they had formed the purpose and 
 made ample provision to drive their own logs. Foster v. Gushing, xxxv. 
 60. 
 
 13. After logs from the Penobscot Boom had been unconditionally de- 
 livered to the owner and by him sold, and to whom, among other compen- 
 sations, the vendee gave a note to pay him, the amount of the boomage, 
 in a suit by the vendor upon the note : — Held, that a payment of the boomage 
 
LORD'S DAT.— LOTTEBY LANDS. 375 
 
 ty the vendee to the Boom Corporation, without request of the vendor, was 
 a voluntary act, and constituted no defence. Hucldns v. Gushing, xxxvi. 
 423. 
 
 See Atjction, &c., 1, 2. 
 Contract, 121. 
 Lien. 
 
 LOKD'S DAY. 
 
 1. There is no prohibition, either at common law or by statute, of the ser- 
 vice of process, in criminal cases, on the Lord's day, except in so far as the 
 service of the same might be unnecessary on that day. Keith v. Tuttle, 
 xxviil. 326. 
 
 2. A recognizance, taken between midnight preceding, and sunset of the 
 Lord's day, to prosecute an appeal in a criminal prosecution, is void. State 
 V. Suhur, xxxili. 539. 
 
 3. A contract thus made is also void. Nason v. Dinsmore, xxxiT. 391. 
 Hilton V. Houghton, xxxv. 143. 
 
 4. Upon a contract dated on the Lord's day, no presumption arises that it 
 was made before sunset ; but, to render it invalid, it must be proved to have 
 been made before sunset. Nason v. Dinsmore, xxxit. 391. 
 
 5. So is a note, signed and delivered on the Lord's day, void. But, by the 
 signing of such a note on the Lord's day, its validity is not impaired, if it be 
 not delivered on that day. Hilton v. Houghton, xxxv. 143. 
 
 6. In a civil suit, on an issue received and discussed by the jury on Satur- 
 day, their verdict may be affirmed and recorded on the next court day, though 
 it was finally agreed upon and sealed up on the morning of Sunday. True v. 
 Plumley, xxivi. 466. 
 
 V. The Sabbath commences at midnight preceding, and ends at sunset, on 
 the Lord's day. Traveling after sunset, on that day, is not illegal. Bryant 
 V. Biddeford, xxxix. 193. 
 
 8. It is no defence to an action for damages against a town, for injuries to 
 plaintiif's horse, by a defect in the highway, received after sunset on the 
 Lord's day, that the plaintiff let his horse on that day, and that, at the time 
 of the injury, the horse was being used under such contract. Bryant v. Bid- 
 deford, XXXIX. 193. 
 
 9. AH business, traveling, and recreation, on the Lord's day, "works of 
 necessity or charity excepted," are, under K. S. of 1841, c. 160, § 26, ofien- 
 ces punishable by fine. Hinchley v. Penobscot, xili. 89. 
 
 See Wat, 49. 
 
 LOTTEKY LANDS. 
 
 1. Under a statute of 1786, the Legislature of Massachusetts granted, by 
 a lottery, a large number of lots in fifty townships of land in Maine. The 
 
376 LUNATIC— MAINTENANCE.— MALICIOUS MISCHIEF. 
 
 Act required a plan of each, township, -with the number of the lot drawn and 
 of the ticket which drew it, to be inserted in a book, which should be au- 
 thenticated by the signatures and seals of the managers :" — Held, that a copy 
 of their proceedings, showing no such authentication, is not sufficient evidence 
 to maintain a title under the Act. Hovey v. Woodward, xxxiii. 470. 
 
 2. The result is not varied by the fact that, in the public offices where the 
 documents should be kept, no higher evidence of title to any lot under the 
 Act can be found than that of the original, from which such a copy was 
 taken. Hovey v. Woodward, xxxiii. 470. 
 
 LUNATIC. 
 
 1. Where a lunatic, taken up in a town in which he has no legal settlement, 
 is committed to the hospital according to the statute, the town is responsible 
 for the expenses of his support. Eastport v. East Machias, XL. 280. 
 
 2. But such expenses, on due notice given, may be collected of the town 
 in which such lunatic has a legal settlement. Eastport v. East Machias, xl. 
 280. 
 
 See Insane Persons. 
 
 MAGISTRATE. 
 See Justice of the Peace. 
 
 MAINTENANCE. 
 
 Maintenance is commonly taken in an ill sense, and, in general, seemeth to 
 signify an unlawful taking in hand, or upholding of quarrels or sides, to the 
 disturbance or hindrance of common right. Falmer v. Dougherty, xxxiii. 
 502. 
 
 MALICIOUS MISCHIEF. 
 
 1. An indictment for maliciously breaking down a dam, belonging to a 
 person named, cannot be sustained unless the ownership be proved as alleged. 
 State V. Weeks, xxx. 182. 
 
 2. An indictment under the statute " of malicious mischief" may be main- 
 tained, although the facts proved might have supported an indictment for 
 arson. Thayer v. Boyle, xxx. 475. 
 
MALICIOUS PBOSECUTION. 377 
 
 3 In such case, it is not necessary that the offender should be prosecuted 
 CTiminaliter, prior to the commencement of a civil action by the party injured. 
 Thayer v. Boyle, xxx. 475. State t. Pike, xxxiii. 361. 
 
 4 In such action, evidence of the.general good character of the defendant 
 is inadmissible ; as is also the evidence that the plaintiff's witness was habit- 
 ually intemperate. Thayer v. Boyle, xxx. 475. 
 
 5 In trespass for wilfuUy and maliciously setting fire to, &c., and destroy- 
 ing "plaintiff's bam, &c., the jury should not decide upon the balance of testi- 
 mony as in other civil cases ; but the defendant is entitled to a verdict m his 
 favor, upon merely raising a reasonable doubt. Wells, J., dissenting. 
 Thayer v. Boyle, xxx. 475. 
 
 6. The knowledge of some of the inhabitants of a town that a book of 
 the "town's records was left with the defendant,, is not a defence to the charge 
 of subsequently secreting it.. State v. Williams, xxx. 484. 
 
 7. Where one knowingly has an article belonging to another, and, being 
 called on for it, asserts that it is not in his possession, and denies all knowl- 
 edge of it, this is competent evidence in a trial against him for secreting such 
 article. State v. Williams, xxx. 484. 
 
 8. And if kept openly with his own articles of the same kind, that would 
 not necessarily determine that it was not secreted from its .owners. State v. 
 WilKams, xxx. 484. 
 
 9. In a criminal prosecution, under R. S. of 1841, c._162, § 13, for wilfully 
 destroying property, the party injured may be a witness. State v. Fike, 
 XXXIII. 361. 
 
 10. In such prosecution, it is immaterial whether the property came right- 
 fully or wrongfully into possession of the defendant. State v. Pike, xxxiii. 
 361. 
 
 11. A wrongful taking is not an essential ingredient in this class of offen- 
 ces. State V. Pike, xxxiii. 361. 
 
 MALICIOUS PROSECUTION. 
 
 1. In an action to recover damages for a malicious prosecution, the ques- 
 tion of probable cause, upon established facts, is a question of law. Stevens 
 V. Fassett, xxvii. 266. Taylor v. Godfrey, xxxvi. 525. 
 
 2. If one, with an honest wish to ascertain whether certain facts will au- 
 thorize a criminal prosecution, lays all such facts before one learned in the 
 law, and solicits his deliberate opinion thereon, and the advice obtained is 
 favorable to the prosecution, which is thereupon commenced, it will go far, 
 in the absence of other facts, to show probable cause, and to negative malice. 
 Stevens v. Fassett, xxvii. 266. 
 
 3. But, if he withheld material facts, within his knowledge, or which, in 
 the exercise of common prudence, he might have knovm ; or, if he was influ- 
 eftced by passion, or desire to injure the other party ; and, especially, if he 
 received from his counsel advice of a contrary character, upon the same ques- 
 tion, such opinion wiU not avail him, and cannot protect him. Stevens v. 
 Fassett, xxtii. 266. 
 
 48 
 
378 MALICIOUS PROSECUTION. 
 
 4. The elements of " probable cause" should be such as to warrant an 
 impartial and reasonable mind, in the exercise of ordinary care and caution, 
 in the belief of the guilt of the accused. McGum v. Brackett, xxxiii 
 331. 
 
 5. One may " rashly and hastily cause the arrest and prosecution of an- 
 other, for a crime which has not been committed, and which, by the use of 
 proper deliberation, care, and inquiry, be could have ascertained had not been 
 committed," and yet have probable cause for the prosecution. McGurn y. 
 Brackett, xxxiii. 331. 
 
 6. "The want of due care, and a recHess design to accomplish an object, 
 regardless of the rights of others," do not necessarily constitute mEdice. 
 McGurn v. Brackett, xxxiii. 331. 
 
 7. In an action for malicious prosecution, if there be no testimony that the 
 accused committed the crime, or that the prosecutor had been informed or 
 knew of any fact inducing a belief that he had, the law itself pronounces 
 that there was no probable cause, and leaves nothing for the jury. Taylor 
 V. Godfrey, xxxvi. 525. 
 
 8. Evidence that damages have been suffered by a malicious prosecution 
 by defendants, without probable cause, is sufficient to support an action for 
 conspiracy in instituting such prosecution. Page v. Gushing, xxxviii. 528. 
 
 9. Unlawful acts, wilfully done, are malicious as to those who are injured 
 thereby. Page v. Cushing, xxxviii. 523. 
 
 10. There cannot be probable cause for a prosecution to accomplish a 
 purpose, known by the prosecutor to be unlawful. Page v. Gushing, xxxviii. 
 523. 
 
 11. In an action for the abuse of legal process, it is unnecessary to allege 
 or prove that it was sued out maliciously or without probable cause, or that 
 it had terminated. Page v. Gushing, xxxviii. 523. 
 
 12. An act may be malicious in a legal Sense, which is not prompted or 
 characterized by malevolence or corrupt design. Page v. Cushing, xxxviii. 
 523. 
 
 13. A. sued B. and others in trespass. " Neither party" was entered by 
 agreement, on payment, by defendants, of a certain sum of money. B. then 
 sued A. for malicious prosecution: — Held, that there was probable cause. 
 Marks v. Gray, sxii. 86. 
 
 14. Information, received from a reliable source, may well be acted upon 
 in a prosecution for a criminal offence ; and it amounts to probable cause, 
 when given positively and unequivocally. Fitzgihhon v. Brown, xliii. 169. 
 
 15. Probable cause does not depend entirely upon the actual state of the 
 facts, but upon the honest and reasonable belief of the prosecutor. FUzgibbon 
 V. Brown, xiiii. 169. 
 
 16. In an action for malicious prosecution, evidence of the general bad rep- 
 utation of the plaintiff is admissible. Fitzgihhon v. Brown, xiiii. 169. 
 
MANDAMUS. 379 
 
 MANDAMUS. 
 
 1. The Court is authorized, both by the common law and by the statute, to 
 issue writs of mandamus to courts of inferior jurisdiction, to corporations and 
 individuals, only when necessary for the furtherance of justice and the due 
 execution of the laws. Smyth v. TUcomb, xxxi. 272. Dennett, pet'r, xxxii. 
 508. 
 
 2. This process cannot be used for the review or correction of judicial 
 errors. Smyth v, Titcomb, xxxi. 272. 
 
 3. On a summary hearing, upon a petition for mandamus, the Court will 
 not determine the constitutionality of a law involving merely the rights of 
 third persons. Smyth v. Titeomh, xxxj. 272. 
 
 4. This Court has no authority, by mandamus, to control the official doings 
 of the Governor and CouncU. Dennett, pet'r, xxxii. 508. 
 
 5. To an application for a mandamus to the treasurer of a town to issue 
 his warrant of distress against the collector of taxes, for neglecting to collect 
 a school district tax, it is no defence that there were illegalities in the assess- 
 ment, if the warrant was issued by legal assessors. Tremont v. Glarh, 
 xxxiii. 482. 
 
 6. A writ of mandamus wiE not be granted when a compliance with it 
 will be unavailing in its effects. Williams, pefr, xxxT. 345. Woodbury, 
 pet'r, XL. 304. 
 
 7. Mandamus extends to all cases of neglect to perform a legal duty where 
 there is no other adequate remedy. Williams, pet'r, xxxy. 345. Baher v. 
 Johnson, xli. 15. 
 
 8. It applies to judicial as well as ministerial acts. Williams, vet'r, xxxv. 
 345. -^ 
 
 9. If judicial, the mandate will be to the officers to exercise their official 
 discretion or judgment, without any direction as to the modus operandi. 
 WUliams, pet'r, xxxt. 345. 
 
 10. If ministerial, the mandate will direct the specific act to be performed. 
 Williams, pet'r, xxxt. 345. 
 
 11. If, in a bill of exceptions, the Judge, at Nisi Prius, make wrongful 
 alterations to the injury of the excepting party, a correction cannot be had by 
 motion, but by a writ of mandamus, only. True v. Plumley, xxxti. 466. 
 
 12. By mandanms, towns may compel railroad corporations to keep in 
 repair such bridges as the law requires them to maintain. State v. Gorham 
 xxxTii. 451. ' 
 
 13. Petitions for writs of mandamus are addressed to the judicial discretion 
 of the Court. Woodbury, pet'r, xi. 304. 
 
 «i/l J* ^""^ ^^ '^^'^'^ *° ^"^ applicant for this writ to place him in an office, 
 Wled by an amiual election, to which he alleges he was duly chosen, but 
 UlegaUy counted out. Woodbury, pefr, xi. 304. 
 
 15. Mandamus is not grantable of right, but by prerogative, and it is the 
 absence of a specific legal remedy which gives fhe Court jurisdiction to dis- 
 pense it. Baker v. Johnson, xii. 15. 
 
 ^at v.Tw!Sfl1.'°'"^^'^'^ ^""^ ""'"^^ expeditious remedy. 
 17. It wiU be granted, if it be doubtful whether there be another effectual 
 
380 MARRIAGE. 
 
 remedy, or if the Court does not dearly see its way to one. Baker v. John- 
 son, sxi. 15. 
 
 18. There ought to be, in all cases, a specific legal right, as well as a want 
 of a specific legal remedy, in order to lay the foundation for a mandamus. 
 Baker v. Johnson, xii. 15. 
 
 19. The law gives no remedy, hy action, against the county, for the pay 
 of sheriff's, and other executive and ministerial officers, for attending Court; 
 neither is there any specific or adequate remedy against a county treasurer, or 
 upon his official bond, when he improperly withholds payment ordered hy the 
 Court. Under such circumstances, a mandamus may be sustained. Baker v. 
 Johnson, xli. 15. 
 
 20. The writs of certiorari, prohibition, mandamus and quo warranto, and 
 many other processes at common law, have undergone no material change ; and 
 when they are respectively the appropriate remedies for wrongful acts and 
 neglects, all their peculiar characteristics must be retained. Davis, ex parte, 
 XLI, 38. 
 
 MANSLAUGHTER. 
 
 See MuEDEK. 
 
 MANURE. 
 See CoNTBACT, 28. 
 
 MARRIAGE. 
 
 1 . In dower, marriage of the demandant may be inferred firom long co-hab- 
 itation as husband and wife, continued until the death of the alleged husband, 
 being received and treated as his wife, and their bringing up and educating a 
 family of children as their own. Garter v. Parker, xxviii. 509. 
 
 2. In all civil actions, excepting actions of crim. con., general reputation 
 and co-habitation are sufficient evidence of marriage. Taylor v. Bohinson, 
 XXIX. 323. Pratt v. Pierce, xxxvi. 448. 
 
 3. Within the import of the Massachusetts Act of 1786, prohibiting the 
 marriage of a white person with any negro, Indian or mulatto, a person but 
 one-sixteenth of the colored blood is a white person. The marriage of such 
 person with a mulatto was void, and the children of such marriage could not 
 inherit their father's land. Bailey v. Fisk, xxxit. 77. 
 
 4. In proving title to real estate by descent, a legal marriage may be estab- 
 lished by proof of facts fi:om which it may reasonably be inferred. Pratt v. 
 Pierce, xxxti. 448. 
 
MAEBIED WOMAN. 381 
 
 5. When the fact of a marriage is proved to have been solemnized by a set- 
 tled, ordained minister of the gospel, the legal presumption is, that it viras 
 done in accordance with the law. Pratt v. Pierce, xxxvi. 448. 
 
 MARRIED WOMAN. 
 
 1. The Act of 1844, c. 117, is prospective merely, and does not affect 
 the interest which the husband acquired in. the real estate of his wife, by a 
 marriage prior to that Act. McLellan v. Nelson, xxvii. 129. Greenleaf y. 
 Hill, xxxr. 562. 
 
 2. Neither has that statute so altered the common law, as to enable a /ewe 
 covert to sell her personal property without the assent of her husband. Swift 
 V. Luce, xxvii. 285. 
 
 3. By the common law, a note made payable to a married woman belongs 
 to her husband. Greenleaf v. Bill, xxxi. 562. Glaric v. Viles, xxxii. 32. 
 Sancoch Bank v. Joy, xli. 568. 
 
 4. The party, who would establish title in a married woman, to a note 
 made since that statute, and payable to her, must prove that it did not, in any 
 way, come from her husband. Glai-h v. Viles, xxxii. 32. 
 
 5. When lands of a wife have been sold by an authorized agent, the money 
 received therefor, in the hands of the agent, belongs to the husband, and, 
 after his death, may be received by his administrator. Groshy v. Otis, xxxil. 
 256. 
 
 6. Neither at law nor in equity can the widow maintain process against the 
 agent to recover such money. Groshy v. Otis, xxxii. 256. 
 
 7. The statutes enlarging the rights of married women, as to property, do 
 not extend to rights of action for tort. Ballard v. Russell, xxxiii. 196. 
 
 8. Under the Act of 1844, the life estate of the husband in land owned 
 by his wife was divested from the husband, in behalf of the wife, only 
 upon condition that she proved the title not to have come to her from the 
 husband after coverture. JEldridge v. Preble, xxxit. 148. 
 
 9. The Acts of 1847 and 1848 were prospective only, in their operation. 
 Eldridge v. Preble, xxxit. 148. 
 
 10. The levy of an execution, against the husband, upon his life estate in 
 the land of his wife, was not defeated by the Act of 1844, unless the wife 
 prove that " the title did not, in any way, come from the husband during 
 coverture." Eldridge v. Preble, xxxit. 148. 
 
 11. The introduction of her title deed, from a third person, is not sufficient 
 proof of that fact. Eldridge y. Preble, xxxit. 148. 
 
 12. Neither the common law nor the statute authorizes an action on con- 
 tract to be maintained against husband and wife jointly. Davis v. Millett, 
 XXXIT. 429. 
 
 13. Under the recent statutes, the property in a negotiable note may pass 
 from the husband to the wife during coverture, by his indorsement and de- 
 livery. Motley V. Sawyer, xxxit. 540. 
 
 14. And after a dissolution of the marriage, she may maintain suit upon 
 the note in her own name. Motley v. Sawyer, xxxit. 540. 
 
382 MAKEIED ■WOMAN. 
 
 15. The promissory note of a married woman, being uncollectable at law, 
 is of no value. Soiue v. Wildes, xxxiv. 566. 
 
 16. That principle was not changed by Act of 1844. Eowe v. Wildet, 
 xxxiT. 566. 
 
 17. Hence, a conveyance of land to a married woman, in consideration of 
 her promissory note, is void. And the punctual payment of the note cannot 
 impart any new vitality to the conveyance, as against creditors. Howe \, 
 Wildes, xxxiv. 566. Brown, v. Lunt, xxxvii. 423. Newbegin v. Langley, 
 XXXIX. 200. 
 
 18. A married woman may maintain a suit in her own name alone, to re- 
 cover possession of land belonging to her. Webb v. Hall, xxxT. 336. 
 
 19. Land belonging to a married woman may be conveyed by a deed, 
 executed jointly by herself and husband. Webb v. Ball, xxxt. 336. 
 
 20. And if she be under twenty-one years of age, it is voidable ; and she 
 may avoid it, after coming of age, by bringing a suit for the land. Webb v. 
 Hall, XXXT. 336. 
 
 21. The tenant in such suit, claiming under such deed, will not he ac- 
 countable for any rents and profits which accrued prior to notice that the 
 wife intended to avoid the deed. Webb v. Hall, xxxt. 336. 
 
 22. By the Act of 1847, a subsequent conveyance of land by a husband 
 directly to his wife is made effectual to pass the title, except as against 
 creditors. Johnson v. Stillings, xxxv. 427. 
 
 23. Since the Act of 1844, the right to the exclusive possession and 
 control of property, which, at the time of the marriage, belonged to the wife, 
 remains to her after the marriage as fuUy as before. Southard v. Plumm&r, 
 xxxTi. 64. 
 
 24. Since the Act of 1847, a woman, during coverture, may acquire 
 property by purchase in her own exclusive right. Southard v. Piper, xxxvi. 
 84. 
 
 25. The common law principle, that the income from the labor of the 
 wife enures to the benefit of the husband, has not been impaired by the laws 
 of the State. Bradbury v. Andrews, xxxvii. 199. Merrill v. Smith, xxxvii, 
 394. 
 
 26. For a married woman to " purchase" property, under the Act of 1847, 
 she must make it from her own property, or that of others, by their consent, 
 for her use. Merrill v. Smith, xxxvii. 394. 
 
 27. Property purchased by a feme covert, on the credit, or from the means 
 of her husband, or by the avails of her labor, belongs to the husband. Mer- 
 rill V. Smith, XXXVII. 394. 
 
 28. A feme covert may maintain an action in her own name, to protect her 
 own property. Davis v, Herrich, xxxTii. 397. 
 
 29. And she may hold property, without paying for it an adequate consid- 
 eration, by direct or indirect conveyance from her husband, against his subse- 
 quent creditors. Davis v. Herrich, xxxtii. 397. 
 
 30. And, even if the conveyance was made to defraud existing creditors, 
 whose debts were subsequently paid. Davis v. Herrich, xxxvii. 397. 
 
 31. A conveyance made to a married woman, in consideration of her pro- 
 missory notes, indorsed by her husband, is valid ; although the indorsement 
 was after the conveyance, if made in pursuance of an agreement when the 
 deed was executed. Brown v. Lunt, xxxtii. 423. 
 
MERGER. 383 
 
 32. Under the Act of 1821, c. 60, § 1, the reversion of a feme covert was 
 liable to be levied on for her debts, contracted "before coverture. Moore v. 
 Bichardson, xxxvii. 438. 
 
 33. For an injury to the property of the wife, although the control of it 
 might have been released to her husband under the 3d section of c. 117, of 
 the Act of 1844, the action must be brought in the name of the wife. Col- 
 len V. Kelsey, xxxix. 298. 
 
 34. In a suit against a married woman, upon a contract entered into by 
 her during coverture, having a husband residing in this State, but accustom- 
 ed to trade and do business as a feme sole, and living separate from her hus- 
 band, the coverture is a perfect defence. Fuller v. Bartlett, xli. 241. 
 
 35. And may be proved under the general issue. Fuller v. Bartlett, xli. 
 241. 
 
 36. A wife cannot maintain an action against her husband. Smith v. Gor- 
 man, XLI. 405. 
 
 37. If, in an action against him by his wife, he fails properly to plead the 
 coverture in bar, he is not entitled to costs, if he prevail. Smith v. Gorman, 
 XLI. 405. 
 
 38. The wife of A., in his absence, having accepted a draft in her own 
 name, the rights of the parties are to be determined by the rules of the com- 
 mon law, which are not affected by the statutes of this State. Such indorse- 
 ment will bind the husband. Hancock Bank v. Joy, xli. 568. 
 
 See Paitpee, 12. 
 
 MASTER IN CHANCERY. 
 See Eqtjiiy, 60 — 62, 64, 70, 71. Intesest, 
 
 MECHANIC'S LIEN. 
 See LiEJT. 
 
 MERGER. 
 Mergers are not favored in courts of law or equity. Simonton v. Gray 
 
 XXIT. 50. ri J . ^i^y. 
 
 XXXIT. 50. 
 
 MESNE PROFITS. 
 See Real Action, 7. 
 
384 MILITIA.— MILLS. 
 
 MILITIA. 
 
 1 . An order from the commanding officer of a military company, addressed 
 to a private in the company, directing him to warn the persons therein named, 
 (his own name being on the list with the others,) to attend at a company train- 
 ing, is a sufficient warning to him. Farrington v. Howard, xxx. 235. 
 
 2. "Where one, who was a captain, was deposed by the sentence of a court 
 martial, and afterwards was prosecuted by the ensign for not performing 
 military duty, he has a right to inquire into the legality of the proceedings of 
 the court martial. Crawford v. Hoioard, xxx. 422. 
 
 MILLS. 
 
 I. RIGHTS AND LIABILITIES OF THE DIFFERENT PARTIES. 
 II. FLOWAGE, AND COMPLAINTS THEREFOR. 
 in. DAMAGES. 
 
 I. RIGHTS AND LIABILITIES OF THE DIFFERENT PARTIES. 
 
 1. A grant to the defendant to have, in his own flume, (whi^ch is supplied 
 with water from the plaintiff's dam,) " a gate of twelve inches square, or 
 equal to that," will not justify the use, within the flume, of a horizontal 
 wheel, propelled on the reaction principle, by the escape of water, through 
 the wheel by twelve apertures, distributed over an area equal to several square 
 feet, although the areas of all the apertures do not amount to more than 
 twelve inches square in the aggregate. Drummond v. Hinclcley, xxx. 433. 
 
 2. The grantee is not authorized to apply water upon a wheel revolving 
 within the flume ; nor in any way, except outside of the flume and through 
 an orifice or orifices in the flume. Drummond v. Hinclcley, xxx. 433. 
 
 3. Whether the amount of water can be taKen through more than one 
 oriflce, quere ; but if so, it must all be taken through a gate or space not 
 containing a superficies of more than twelve inches square. Drummond v. 
 Hinclcley, xxx. 433. 
 
 4. In an action to recover plaintiff's share of the avails received by de- 
 fendant, for the use of a grist-mill, in which both parties, and a third per- 
 son were co-tenants, it is no defence, in whole or in part, that the defend- 
 ant has incurred expense in repairs upon the miU, unless such repairs were 
 made pursuant to R. S., 1841, c. 86. Buck v. Spofford, xxxi. 34. 
 
 5. The notice for calling a meeting of the niill owners must be ^vena 
 reasonable time before the meeting, there being no statute prescription in this 
 particular. Buclc v. Spofford, xxxi. 34. 
 
 6. The decision of the mill owners need not be by vote, neither is any 
 record of it necessary. Buclc v. Spofford, X3;xi. 34. 
 
 7. The law will justify no repaii;, whereby to charge one part owner 
 against his consent, except so far as to make the property serviceable. Buck 
 v. Spofford, XXXI. 34. 
 
MILLS. 386 
 
 8. But, if repairs have been made under the statute beyond what was neces- 
 sary, his lien will be good for such part of them as were necessary. And if 
 he has been reimbursed to that extent, out of the joint profits, he will be 
 accountable, in assumpsit, to his co-tenant, for his share of the surplus, if 
 any. Buck v. Spofford, xxxi. 34. 
 
 9. In such an action, by one co-tenant against the other, the defendant, in 
 order to prove the legality of the mill owners' meeting, may use another of 
 the co-tenants as a witness. Buck v. Spofford, xxxr. 34. 
 
 10. Damages are recoverable for an injury to a mill, lawfully existing, 
 occasioned by the erection of any dam, unless the right to maintain such mill 
 shall have been lost or defeated. Thomas v. Sill, xxxi. 252. 
 
 11. The grant of a " miU site" conveys a water power, together with the 
 right to maintain a dam wherever such dam would be suitable for the con- 
 venient and beneficial appropriation of the water power. Stackpole v. Curtis, 
 XXXII. 383. 
 
 12. To establish a prescriptive right of flowing water, by a dam, for the 
 use of a mill, it is not necessary that the dam should have been maintained, 
 for the whole period, upon the same spot ; it is sufficient, if it has been main- 
 tained upon the same mill site, though removed, from time to time, to difler- 
 ent places upon ^uch site. Stackpole v. Curtis, xxxii. 383. 
 
 13. Aright, acquired by use, to maintain a dam, unimpeded by any dam 
 below it on the same stream, may be lost by non-user. Farrar v. Cooper, 
 XXXIV. 394. 
 
 14. Though, from the time of ceasing to use a mill privilege, twenty years 
 may not have elapsed prior to its being overflowed and destroyed by a dam 
 below, stiU an abandonment of the privilege may be presumed, if its pro- 
 prietor, witnessing the erection of the dam and of expensive works upon it, 
 and knowing that it must destroy his privilege above, makes no efibrt or re- 
 monstrance to prevent it, or claim of remuneration for it, within the residue of 
 the twenty years. Farrar v. Cooper, xxxiv. 394. 
 
 15. The statute, giving protection to mill-dams, extends only to such streams 
 as are not navigable. Bryant v. Olidden, xxxvi. 36. Knox v. Chaloner, 
 xiii. 150. 
 
 16. Where the plaintifl'''s grantor, being owner of a water privilege, con- 
 veyed to the defendant one-half the flume connected with the grist-mill, with 
 the privilege of drawing water from the mill-dam to carry certain machinery 
 when the water was not needed for the grist-miU : — Seld, that the plaintifi"s 
 were restricted to the use of the same power required to drive the grist-mill at 
 the time of the defendant's grant, if necessary to the enjoyment of his rights ; 
 that they might use another kind of wheel or wheels, but no more water in 
 quantity could be used or lost thi-ough the newly constructed wheels than was 
 required for the use of the mill, at the time of the grant. Davis v. Muncey, 
 XXXVIII. 90. 
 
 17. But the plaintifi"s right to recover damages of defendant, for using the 
 water when wanted for the grist-mill, and while the water was running over 
 the dam, cannot be defeated, by showing leakage in another flume connected 
 with the same head, but not connected with the grist-mill flume, although one 
 of the plaintifis had actual control over it. Davis v. Muncey, xxxviii. 90. 
 
 18. A parol license that the plaintiff or his grantor may build a dam on the 
 land of another, to raise a reservoir of water for the use of his mill, will con- 
 fer no right upon the plaintiflf to maintain such dam after it is built, 'or control 
 
 49 
 
386 MILLS. 
 
 the water raised by means of it. Pitman v. Poor, xxxviii. 237. Moulton 
 V. Faught, xli. 298. 
 
 19. Nor can the owner of such reservoir dam use the water raised thereby, 
 for a mill subsequently erected, to the detriment of the earlier mill, for the 
 reason that it was the oldest dam. Pitman v. Poor, xxxviii. 237. 
 
 20. In regard to the owner of the soil, it may be considered as erected 
 when he first appropriated it to his own use. Pitman v. Poor, xxxviii. 
 237. 
 
 21. The owner of the first mill is entitled to the beneficial use of the water, 
 as though no reservoir dam existed. Pitman v. Poor, xxxviii. 237. 
 
 22. The owner of a mill, erected subsequently to one lawfully existing upon 
 the same stream, is liable in damages, if, by his mode of using the water, 
 the first mill is rendered less beneficial and profitable than it was before. 
 Wentworth v. Poor, xxxviii. 243. 
 
 23. And this liability is not lessened although the damages arise from the 
 use of improved machinery by the owner of the second mill. Wentworth v. 
 Poor, XXXVIII. 243. 
 
 24. The authority to flow lands by maintaining a water-mill, under the 
 mill Act, if it were a new question, might well be doubted, as conflicting 
 with~Art. 1, § 21, of the Constitution. Jordan v. Woodward, xl. 317. 
 
 25. From its great antiquity, and the long acquiescence in its provisions, 
 it must be deemed to be the settled law of the State. Yet its peculiar pro- 
 visions cannot be further extended by implication. Jordan v. Woodward, 
 XL. 317. 
 
 26. Hence, the riparian proprietor of lands overflowed by means of a dam, 
 may occupy the land so overflowed, by erecting piers thereon and construct- 
 ing booms, and thereby exclude the mill-owner from making it a depositary 
 of lumber for his mills. Jordan v. Woodward, xi. 317. 
 
 27. In an action by A., owner of a saw-mill, to recover damages of B., 
 alleged owner or occupant of another mill, situated on the opposite side of 
 the same river, and Supplied with water from the same source, for divert- 
 ing water iirom the mill of A., the ownership or actual occupancy of B. 
 must be proved, or the suit cannot be maintained. Sidelinger v. Sagar, 
 XLI. 415. 
 
 28. Such ownership is not established by a deed to the defendants, from a 
 party not shown by the evidence to have had the title in him, while it does 
 appear, that a third party has an older, and, apparently, perfect outstanding 
 title ; and the presumption, in the absence of proof, in such case, is, that the 
 possession follows the superior title. Sidelinger v. Hagar, xli. 415. 
 
 29. The Court cannot presume, that he, who assumes to convey as owner, 
 is such in fact, or undertake to supply a link in the chain of title, the ex- 
 istence of which is rendered probable, but is not in the case. Sidelinger v. 
 Hagar, xli. 415. 
 
 30. The mill Act of R. S. of 1841, c, 126, is subject to the paramount 
 right of passage of the public, across and upon streams, in all cases where 
 the streams in their natural state are capable of floating boats or logs. Knoa 
 V. Ghaloner, xlii. 150. Treat t. Lord, xlii. 552. 
 
MILLS. 387 
 
 II. FLOWAGE, AND COMPLAINTS THEREFOR. 
 
 31. By our statute, the remedy for damages occasioned by flowage is 
 abolished, except .under particular circumstances. Hill v. Bolter, xxTiil. 9. 
 Monmouth v. Gardiner, xxxt. 247. Underwood v. North Wayne Scythe 
 Co., XLi. 291. 
 
 32. AH the owners of the dam complained of must be joined in the com- 
 plaint, or it will abate, if the non-joinder be pleaded. Hill v. Baker, 
 XXVIII. 9. 
 
 33. A lease of so much land adjoining a stream, as shall be necessary and 
 convenient for making and using a canal to "slip lumber" from an upper to 
 a lower pond, does not by implication grant any right to flow the lessor's land 
 by the erection of a dam. Davis v. Brigham, xxix. 391. 
 
 34. A complaint for flowing will lie against the occupant, as really as 
 against the owner, of a dam. Davis v. Brigham, xxix. 391. 
 
 35. A right to flow lands for a mill may be acquired by prescription, 
 although the flowing was occasioned by difi'erent dams, owned by different 
 persons. Davis v. Brigham, xxix. 391. 
 
 36. To establish a right by user, to flow complainant's land, in a case 
 where the defendant's proof showed that the only interruption to the flowing 
 was during the rebuilding or repairing of the dam, it must be proved, that 
 damage was done thereby to the owner ; that it must have been such as would 
 enable him to maintain a process to prevent such flowing, or to recover for it; 
 that it should be of yearly occurrence ; that he knew or had the means of 
 knowing of such flowing ; that it must have been continued for twenty years, 
 and, for that period, it was flowed as high or higher than during the three 
 years next before filing the complaint, with the qualification, however, that 
 the omission to flow during the rebuilding or repairing of the dam should not 
 prevent the acquisition of such right. Wood v. Kelley, xxx. 47. Underwood 
 V. North Wayne Scythe Go., xli. 291. 
 
 37. In a complaint for flowing, one of the respondents, after having been 
 defaulted, cannot be a witness for his co-defendant. Wood v. Kelley, xxx. 
 47.' 
 
 38. Where a judgment for yearly damages has been recovered, it is a 
 charge upon the estate complained of ; and the owner or occupier of the miU 
 and dam is liable in debt, not only for what may fall due while he is owner, 
 but for all that was in arrear before his title commenced. Knapp v. Clark, 
 xxx. 244. 
 
 39. In an action on such judgment, an amendment, stating the time and 
 mode of the acquirement of defendant's title, (it having been already alleged 
 that the defendant owned and occupied the same,) introduces no new cause 
 of action. Knapp v. Clark, xxx. 244. 
 
 40. In a complaint for flowing land, claimed to be the complainant's, it is 
 to be so considered, if the defendant does not controvert it. Benson v. Soule, 
 XXXII. 39. 
 
 41. Though a dam may have flowed land more than twenty years, a pre- 
 scriptive right, set up by the defendant, is not established, unless the occupa- 
 tion was by himself or some one under whom he claims. Benson v. Soule, 
 XXXII. 39. 
 
 42. Flowing, occasioned by a reservoir dam, distant from the mill, will not 
 support a complaint, alleging the flowing to be occasioned by the dam at the 
 
388 MILLS. 
 
 mill, though the fonner is maintained merely to supply water for the mill. 
 Whitney v. Oilman, xxxiil. 273. 
 
 43. Such complaint may be amended, on terms, however. Whitney v. 
 Oilman, xxxiii. 273. 
 
 44. To a complaint for flowing, against the owner of a dam, it is no defence 
 that his ownership had ceased prior to the instituting of the complaint. Bean 
 V. Hinman, xxxiii. 480. 
 
 45. For damage done within three years before commencing the suit, and 
 before he had ceased to own the dam, he is responsible. Bean v. Hinman, 
 XXXIII. 480. 
 
 46. Under the statute, a right by prescription to flow land to a given height, 
 by means of a mill-dam, cannot be sustained, unless the flowing had caused 
 damage to the owner of the land. Wentworth v. Sanford Manuf'g Co., 
 XXXIII. 547. Underwood v. North Wayne Scythe Co., xli. 291. Prescott 
 V. Curtis, XLil. 64. 
 
 47. A remedy lies in favor of a town for damages sustained by flowing the 
 banks of its public highway, by means of a mill-dam, though the owner of the 
 dam may have obtained the permission of the proprietor to flow the land ; and 
 though the town, at a reasonable expense, might have prevented the damage ; 
 and though other causes, jointly with the dam, contributed to occasion the 
 damage ; and though the dam was not the principal cause of it. Monmouth 
 V. Gardiner, xxxv. 247. 
 
 48. When such an action, commenced in the District Court, came by ap- 
 peal to this Court, and the verdict was less than twenty dollars, full costs must 
 be allowed the plaintifis. Monmouth v. Oardiner, xxxv. 247. 
 
 49. A complaint for flowing land, by means of a mill-dam, should allege it 
 to have been erected on a stream not navigable. Bryant v. Olidden, xxxvi. 
 36. 
 
 50. The omission of such an allegation should be taken advantage of before 
 verdict, as no arrest of judgment can be allowed in a civil suit. Bryant v. 
 Olidden, xxxvi. 36. 
 
 51. Though such a defect might have proved fatal, if seasonably objected 
 to, a writ of certiorari would not be granted, probably, if, in point of fact, 
 the stream was not a navigable one. Bryant v. Olidden, xxxvi. 36. 
 
 52. Upon the return of the commissioners' report, the case is to be tried by 
 jury in Court, at the request of either party. Upon this trial, the report is to 
 " be given in evidence, subject to be impeached by evidence from either 
 party." Bryant v. Olidden, xxxvi. 36. 
 
 53. Such report is conclusive until impeached. And it can be impeached 
 only by showing partiality, bias, prejudice or inattention to, or unfaithfulness 
 in, the discharge of the trust ; or that it was based upon such error that the 
 existence of such influences may be justly inferred from the extraordinary 
 character or grossness of that error. Bryant v. Olidden, xxxvi. 36. 
 
 54. The verdict, after the report has been returned, is defective, if it do 
 not find the yearly damage ; or " what portion of the year the land ought not 
 to be flowed ;" or if it assess, in one aggregate sum, the damage which ac- 
 crued before, and also that which accrued after, the complaint was filed. 
 And, unless the verdict flnds the two former points, no judgment can be ren- 
 dered, and a new trial must be granted. Bryant v. Glidden, xxxvi. 36. 
 
 55. A subsequent purchaser of the dam will be liable for the yearly dam- 
 
MILLS. 389 
 
 age, upon the expiration of each year, reckoning from the filing of the com- 
 plaint. Bryant v. Olidden, xxxti. 36. 
 
 56. In a complaint for flowing land, owned by tenants in common, by 
 means of a mill-dam, all the co-tenants must join, or the process cannot be 
 maintained. Tucker v. Campbell, xxxti. 346. 
 
 57. To entitle the owners of a dam and mill to the benefits of c. 126, R. S. 
 of 1841, the mill, as well as the dam, must be situated within the limits of 
 the State. Wooster v. G. F. Manufg Co., xxxix. 246.' 
 
 58. But, where the mill is situated in another State, across a river, the 
 boundary of the two States, they may maintain an action for indemnity at 
 common law. Wooster v. G. F. Manuf'g Go., xxxix. 246. 
 
 59. In the trial of a complaint for flowing lands by means of a mill-dam, 
 after the commissioners have reported the damages, such commissioners can- 
 not be interrogated whether they exercised great care in their proceedings, 
 and in arriving at their conclusion. Bryant v. Glidden, xxxix. 458, 
 
 60. Where such report is impeached by the verdict, merely showing that 
 the verdict is erroneous is not sufficient cause to set it aside ; but it must ap- 
 pear that the jury acted under improper influences, or were affected by som« 
 bias, or misconceived some of the essential facts of the case. Bryant v. 
 Glidden, xxxix. 458. 
 
 61. If the owner of land, flowed by means of a mill-dam, has not been in- 
 jured thereby, he cannot maintain an action therefor under the statute ,- and, 
 ia such case, no prescriptive right to flow, without the payment of damages, 
 can be acquired. Underwood v. North Wayne Scythe Co., xii. 291. 
 
 62. But, if he has been injured, so as to enable him to maintain a com- 
 plaint against the owner of the mUl, such prescriptive right may be acquired. 
 Underwood v. North Wayne Scythe Co., xii. 291. 
 
 63. In order to maintain such prescriptive right, it must be shown that the 
 flowing for the twenty years and upwards has been an injury to the owner of 
 the land. Underwood v. North Wayne Scythe Co., xxi. 291. 
 
 64. The exposition by this Court, in its various decisions, of the statutes 
 of 1821, 1824 and 1840, on the subject of flowing lands by the operation of 
 mills, is correct in the doctrines established, although remarks may have been 
 made, in reference to particular facts of the respective cases, probably not 
 understood in some respects as they were intended, Und'erwood v. North 
 Wayne Scythe Co., xli, 29i, 
 
 65. A complaint under R, S. of 1841, c. 126, § 6, need not contain an 
 allegation that the lands were overflowed by reason of the head of watei: made 
 necessary for the mills of the respondents ; nor that the respondents built 
 their dams and mills upon their own land, or upon the land of another with 
 his consent. Prescott v. Curtis, xlii. 64, 
 
 66. The respondent cannot plead in bar, that the land is not injured by 
 the dam ; but he may plead any other matter which may show that the com- 
 plainant cannot maintain the suit. Prescott v. Curtis, XLii. 64, 
 
 67. The issue, whether he has sufl'ered injury or not, must first be made 
 before the commissioners ; and if their report be impeached, then this ques- 
 tion, with others, if they exist, may be regularly presented to a jury. And 
 the issue presented by a plea in bar, that the lands were not overflowed by 
 reason of the head of water raised by the dam, is virtually the issue, whether 
 the complainant has or not suffered injury, Prescott v. Curtis, xlii, 64. 
 
390 MINISTERIAL FUND. 
 
 68. A plea by respondents, that^ they had flowed the lands more than 
 twenty years prior to complaint, doing the same damage, if any, as during 
 the period covered by the complaint, is peculiar, and embraces an issue to be 
 tried by the commissioners in the first instance. Prescott v. Curtis, xxii. 64. 
 
 69. For a legal complaint under this Act, see Prescott v. Curtis, xxii. 64. 
 
 See Amendment, 9. 
 
 ni. DAMAGES. 
 
 70. Upon complaint for flowing, it is competent for the jury to include 
 compensation for injury to plaintiff''s fences, and for the annual expense of 
 maintaining fences for the future. Jones v. Phillips^ xxx. 455. 
 
 71. The statute does not authorize a recovery for damage done by flowing 
 more than three years before the complaint. Jones v. Phillips, xxx. 455. 
 
 72. Whether a prescriptive right to flow land to a given height can be 
 proved, in order to reduce the damage occasioned by the dam when elevated 
 above that height, quere. Wentworth v. Sanford Manuf'g Co., xxxiii. 547. 
 
 73. In a complaint for flowing land, damages can only be awarded for the 
 efiects of the dam described in the complaint. Damages arising from other 
 dams, although auxiliary to the one complained of, cannot be considered by 
 the jury. Underwood v. North Wayne Scythe Co., xxxviii. 75. 
 
 74. Damages form the basis of the complaint for flowing, but the question 
 of injury or no injury is not an issue to be made and tried in court, before 
 the appointment of commissioners. Underwood v. North Wayne Scythe Co., 
 XLi. 291. 
 
 75. The power given to the jury by the statute of Massachusetts, of Feb. 
 28, 1798, to try the issue on the complaint as to damages, was abrogated by 
 the statute of 1821, c. 45, and given to the con;miissioners. Underwood v. 
 North Wayne Scythe Co., xli. 291. 
 
 MINISTERIAL FUND. 
 
 1. Property, held by a religious society as a ministerial fund, is to be 
 assessed to the treasurer. Hunt v. Perley, xxxiv. 29. 
 
 2. A fund was vested in a board of trustees, under charge that its interest 
 should be annually paid to support a minister, of certain specified qualifica- 
 tions, statedly preaching in a house of public worship to be located in a pre- 
 scribed portion of the town, which, together with another portion of the town, 
 was afterwards incorporated into a parish, and the parish settled a minister 
 who statedly preached in a house of public worship in the prescribed locaUty : 
 Seld, that the fund in the hands of the trustees was not property held by the 
 parish as a ministerial fund ; and that the treasurer of the board is not, ex 
 officio, the treasurer of the parish; and that taxes upon the fund cannot be 
 assessed to him. Sunt v. Perley, xxxiv. 29. 
 
MINOR.— MITTIMUS. — MORTGAGE. $Ql 
 
 MINOR. 
 
 1. A minor son, allowed by Ms father to leave him and work for his own 
 support, and make contracts for himself without interference, may acquire and 
 hold property in his own right, and maintain actions at law respecting it, 
 although he has never been emancipated. Boohier v. Boobier, xxxix. 406. 
 
 2. Minors, under the age of fourteen years, may be bound as {ipprentices 
 until that age, without their consent, by their father, if living ; and if not, by 
 their mother or legal guardian ; and above that age in the same manner, with 
 their consent. Whitmore v. Whitcomb, xliii. 458. 
 
 3. The indentures should be made by the father or mother, the minor, if 
 above the age of fourteen years, consenting ; and not by the latter with the 
 consent of the former. Whitmore v. WMtcomb, XLiir. 458. 
 
 See Infakt. 
 Patjpeb, 41. 
 
 MISDEMEANOR. 
 See Feiont, 3, 4. iNDiciMEifi, 7, 9. 
 
 MISNOMER. 
 See Abatement, 14. Law and Fact, 23. Tbespass, 12. 
 
 MITTIMUS. 
 
 In a mittimus, it is not necessary to copy the complaint, or state the proofs 
 before the justice. Richer, pet'r, xxxii. 37. 
 
 MORTGAGE. 
 
 I. WHAT CONSTITUTES A MORTGAGE. 
 
 II. RIGHTS AND INTERESTS OF THE PARTIES. 
 
 III. TRANSFER OF RIGHTS IN MORTGAGED ESTATES. 
 
 IV. DISCHARGE OR EXTINGUISHMENT OF A MORTGAGE 
 V. REDEMPTION. 
 
 VI. FORECLOSURE. 
 
 Vn. ACTIONS AT LAW, AND JUDGMENTS THEREON 
 
 Vin. MORTGAGE OF CHATTELS. 
 
392 MORTGAGE. 
 
 I. WHAT CONSTITUTES A MORTGAGE. 
 
 1. Where the owners of an unfinished vessel, on the stocks, agree in writ- 
 ing to " finish and fit it ready for sea with all reasonable dispatch," &c., and 
 " have granted, bargained and sold unto" certain persons named, " one- 
 third part of said vessel, for and in consideration of one dollar, the receipt 
 whereof is acknowledged ;" and then stipulate that the condition of this 
 agreement is, that " the vendees named " shall pay unto" the owners, $3000, 
 (one-half in cash and one-half in six month's notes,) when said vessel shall 
 have been launched five days and clear of lien claims. " And" the owners, 
 " on the payment of said $3000, make and convey a clear bill of sale of one- 
 third part of said vessel," &c. ; — Held, that the agreement was an executory 
 contract for a future purchase and sale of one-third of the vessel, and not a 
 contract, by which that part was then purchased and sold, either absolutely 
 or conditionally, or in mortgage. Metcalf v. Taylor, xxxvi. 28. 
 
 2. When a bill, answer and proof, each shows that a deed of conveyance, 
 though absolute in its form, was intended merely to secure a debt or to in- 
 demnify against liabilities, it wUl be treated, in equity, as a mortgage. Howe 
 •V. Bussell, XXXVI. 115. 
 
 3. A deed of land and bond for re-conveyance, on conditions, executed at 
 the same time, constitute a mortgage. McLaughlin v. Shepherd, xxxii. 143. 
 Purrington v. Pierce, xxxviii. 447. 
 
 4. An offer to perform the conditions defeats the conveyance. McLaughlin 
 v. Shepherd, xxxil. 143. 
 
 5. But the bond must be recorded, to become operative as against subse- 
 quent purchasers, unless they are chargeable with notice. McLaughlin, v. 
 Shepherd, xxxii. 143. Purrington v. Pierce, xxxviii. 447. 
 
 6. An obligation under seal, given by the grantee of real estate at the time 
 of his deed, to re-convey on the payment of a certain sum of money, operates 
 as a deed of defeasance between the parties, though not recorded ; and, in an 
 action by such grantee to recover the premises after the forfeiture of the 
 obligation, he wiU be entitled to a conditional judgment only, but for no rents. 
 Jackson v. Ford, XL. 381. Shaw v. Ershine, xliii. 371. Mills v. Barl- 
 ing, XLiii. 565. 
 
 7. A conveyance, by husband and wife, of real estate belonging to the wife, 
 and a bond to re-convey, given to the wife alone, constitute a mortgage ; al- 
 though the wife gave no personal security for the money to be paid as specified 
 in the bond. Mills v. Darling, xliii. 565. 
 
 8. A defeasance is a collateral deed, and, to be valid, must be made between 
 the same persons who were parties to the first deed, and not prior in point of 
 time. Shaw v. Ershine, xliii. 371. 
 
 II. RIGHTS AND INTERESTS OF THE PARTIES. 
 
 9. Rules of law respecting fraudulent conveyances, are applicable to mort- 
 gages. Aiken v. Kilbourne, xxvii. 252. 
 
 10. Where the only condition of a mortgage was, that the mortgager should 
 " support the said" mortgagee " with suitable meat and drink, and all neces- 
 saries, and pay all doctor's bills," &c. ; and where an agreement, under seal, 
 was made between the parties, at the same time, containing stipulations on 
 the part of each, whereby it appeared that the mortgagee should reside upon 
 
MORTGAGE. 393 
 
 the premises, in order to be entitled to her support:— fleZd, that the con- 
 dition of the mortgage could not be limited by the terms of the agreement. 
 Allen V. Parker, xxvil. 531. 
 
 11. Where a mortgage was made by a husband and wife, of four separate 
 parcels of land, of which three were the property of the wife, and the other 
 of the husband, to secure a debt before due from him ; and where an entry 
 for condition broken was made by an attorney of the mortgagee, by entering 
 upon one of the parcels belonging to the wife, having in his possession the 
 mortgage deed, and stating in the presence and hearing of the husband and 
 of two witnesses, that "he entered for condition broken;" and where after- 
 wards there was a waiver of the entry thus made, by the mortgagee ; and 
 where, after the expiration of three years from the time of such entry, the 
 mortgagee, with the assent and at the request of the husband, but without 
 the knowledge of the wife, made a quitclaim deed of the premises to the 
 demandant, he, however not being present at the time, wherein it was said, 
 " do hereby remise, release, bargain, sell and convey and forever quitclaim 
 unto said (demandant,) the land described in said mortgage, entry having been 
 made to foreclose, and the right of redemption having expired, and the said 
 (demandant) having, at said (husband's) request, paid the amount which 
 would be due on said mortgage. This release is made to said (demandant) 
 at the request of said (mortgagers) and is intended to discharge all title 
 acquired by said (mortgagee):" — Seld, in a real action, brought by the 
 grantee of the mortgagee against the male mortgager, that, as between them, 
 the demandant was entitled to recover. Tennet, J., dissenting. Eangely 
 V. Spring, xxviii. 127. 
 
 12. If a mortgager of a mill, (after making the mortgage,) put into it a 
 shingle-mill and apparatus, it becomes a part of the freehold and passes to 
 the mortgagee after foreclosure. Corliss v. McLagin, xxix. 115. 
 
 13. Notes secured by a mortgage, void as to creditors, are valid in the 
 hands of one to whom they have been indorsed and assigned without knowl- 
 edge of the fraud ; but, if indorsed when over due, they are subject to equities 
 to the same extent as if not thus secured. Sjprague v. Graham, xxix. 160. 
 
 14. When the condition of a mortgage has been performed, it cannot be 
 set up to defeat the title of the mortgager. Ghadlourne v. Rachliff, xxx. 
 354. 
 
 15. An assignment of a satisfied mortgage conveys no interest in the estate. 
 Ghadbourne v. SacMiff, xxx. 354. 
 
 16. If the mortgagee enter upon the premises, and require the mortgager's 
 tenant at will to attorn to him, or surrender to him the possession, the ten- 
 ancy is determined. And if the tenant refuse to attorn or quit, the mortgagee 
 may maintain trespass against him for subsequently accruing rents. Sill v. 
 Jordan, xxx. 367. 
 
 17. Mortgagees, or their assignees, hold the mortgaged property, for the 
 benefit of the owners of the debts secured by the mortgage. Johnson v. Gan- 
 dage, xxxi. 28. Moore v. Ware, xxxviii. 496. 
 
 18. And such owners are- entitled, at equity, to recover their proportionate 
 part of the mortgaged property, and of its rents and profits, of him who per- 
 fected the foreclosure. Johnson v. Gandage, xxxi. 28. 
 
 19. Where a mortgage is made to secure a claim, void by statute, and 
 a subsequent mortgage is made to another person, to secure a lawful debt, the 
 receiving of the money by the first mortgagee, to discharge his mortgage, will 
 
 50 
 
394 MORTGAGE. 
 
 not subject him to an action by the subsequent mortgagee, to recover the 
 money, there being no privity. Ellsworth v. Mitchell, xxxi. 247. 
 
 20. Lapse of time furnishes no presumption, that a debt, secured by a 
 mortgage, has been paid, if the possession has been constantly in the mortga- 
 gee. GrooTter v. Jewell, xxxi. 306. Sweetser v. Lowell, xxxiii. 446. 
 
 21. One holding under a warranty deed from a mortgager, has a right, in a 
 suit against him by the mortgagee, to prove the payment made by the mortga- 
 ger, by which the land was relieved from the mortgage. Williams v. Thur- 
 low, XXXI. 392. 
 
 22. If one purchases land, (from one who had previously conveyed the 
 same in mortgage,) and then sells the same at different times, in separate par- 
 cels, to several purchasers, it may be, that, in equity, the portion last con- 
 veyed, if of sufficient value, will be chargeable with the whole mortgage debt. 
 Sheperd v. Adams, xxxil. 63. 
 
 23. In this case, it was of sufficient value; and the purchaser thereof 
 bought in the mortgage debt, took an assignment of the mortgage and fore- 
 closed it. He then, under a claim of title to the whole tract, released to the 
 purchaser of the first sold portion his (assignee's) right in this portion, 
 upon being paid a sum of money : — Held, that said releasee, in an action at 
 law against the releasor, could not recover back the money, though paid 
 under a belief that the releasor had title to the whole tract. But, that what- 
 ever his right may be, his remedy is in equity alone. Sheperd v. Adams, 
 
 XXXII. 63. 
 
 24. If a mortgage be made, in fraud of creditors, and the mortgager after- 
 wards become a bankrupt, the purchaser of the assignee's rights holds the 
 fee, unincumbered by the mortgage. Dwinel y. Perley, xxxii. 197. 
 
 25. A mortgager, whose right of redeeming has been sold on execution, 
 has no rights in the land, until redeemed ; and his acts upon it may be treated 
 as trespass. Smith v. Sweetser, xxxii. 246. 
 
 26. Before redemption, whether he be in possession or not, he cannot 
 maintain trespass quare clausum, against the purchaser for acts done upon 
 the land. Smith v. Sweetser, xxxii. 246. 
 
 27. In a mortgage, made to the husband alone, to secure a bond for the 
 maintenance of himself and wife, she has a sustainable interest. Pike v. 
 Collins, xxxiiJ^ 38. 
 
 28. After the death of the husband, and a foreclosure of the mortgage by 
 the administrator, the administrator, and those holding under him by the pur- 
 chase, hold the land, charged with the maintenance of the widow, in propor- 
 tion to the value of their respective parts. The liability of such holders 
 commences from the time of thar respective purchases. Pike v. Collins, 
 
 XXXIII. 38. 
 
 29. Where a registered mortgage deed of land mentions the bond secured 
 thereby, without specifying its contents, subsequent purchasers are charge- 
 able with notice of its provisions. Pike v. Collins, xxxiii. 38. 
 
 30. The possession of land by the mortgager, though continued for more 
 than twenty years, is not to be regarded as adverse to the mortgagee, while 
 the debt remains unpaid. Sweetser v. Lowell, xxxiii. 446. 
 
 31. The sum to be paid to a widow, for the release of her dower in mort- 
 gaged real estate, is the present worth of an annuity during her life, equal to 
 the net annual value of such estate. Simonton v. Gray, xxxiv. 50. 
 
MOETGAGE. 395 
 
 32. A town or city tax cannot lawfully be assessed to the mortgagee of 
 land, not in possession, and who has never entered to foreclose. Coombs v. 
 Warren, xxxiy. 89. 
 
 33. While the mortgager is in possession, it is his duty to pay the taxes 
 upon the land. Williams' y. Hilton, xxxv. 547. 
 
 34. The grantor and grantee of land by a deed in form of warranty, but 
 by legal intendment merely an equitable mortgage, may be compelled in equity, 
 after the discharge of the mortgage, to release the estate to a person who had 
 derived, under the grantor, a title legally subordinated only to such mortgage. 
 Howe V. Russell, xxxvi. 115. 
 
 35. The holder of a personal claim, with a mortgage of land as collateral, 
 may recover the balance due on the debt, in a suit at law, after foreclosure, 
 deducting the value of the land at the time of the foreclosure. Porter v. 
 Pillsbury, xxxvi. 278. 
 
 36. A mortgagee of land, even before condition broken, may take the 
 same into possession, if he have made no stipulation to the contrary. Allen 
 V. Bicknell, xxxti. 436. 
 
 37. Even if he enter forcibly, and under circumstances which might render 
 him liable for a breach. of the peace, such entry will be rightful against the 
 mortgager ; and he may retain the rents and profits equally, as if his entry 
 had been peaceable and under legal process. Allen v. Bicknell, xxxvi. 436. 
 
 38. If the mortgager have personal property upon the land, the mortgagee, 
 in order to perfect his entry, may remove the same, upon the mortgager's 
 neglect, after reasonable notice, provided the removal be made in a careful 
 manner, and to a safe and convenient place. Allen v. Bicknell, xxxvi. 436. 
 
 39. Where a person takes a mortgage to secure advances and credits, to be 
 made to the mortgager within a time limited therein, no advances or credits 
 after the time so limited will be secured by that mortgage. Miller v. Whit- 
 tier, XXXVI. 577. 
 
 40. The mortgage is in itself notice to the assignee of the trust chargeable 
 upon it, notwithstanding he may not know to whom the other notes have 
 been assigned. Moore v. Ware, xxxviii. 496. 
 
 41. If, after an attachment of an equity of redemption, the mortgager 
 convey the premises by an absolute deed, for the consideration of the notes 
 secured by the mortgage and other land, such grantee cannot hold the estate, 
 which_ may be duly levied on by virtue of the attachment, against such 
 attaching creditor of the mortgager. Whitcomb v. Simpson, xxxix. 21. 
 
 42. Such attachment is available only by levy. Whitcomb v. Simpson, 
 XXXIX. 21. 
 
 43. And no fraudulent intent, in the creditor making the attachment, wiU 
 authorize the original mortgagee to revive his title under the mortgage, after 
 it has been once canceled. Whitcomb v. Simpson, xxxix. 21. 
 
 44. A mortgagee in possession, for condition broken, cannot be dispossessed 
 thereof by the mortgager, in a suit at law, even after payment of the mortgage 
 debt. The remedy is in equity. Wilson v. Bing, xi. 116. Hill \. More, 
 XI. 515. 
 
 45. A mortgagee of a vessel, who gives an accountable receipt therefor to 
 a,n officer attaching it as the property of the mortgager, cannot avoid his 
 liability by showing that his claims exceeded the value of the vessel. Drew 
 V. Livermore, xl. 266. 
 
 46. A mortgager in possession may maintain trover against a stranger who 
 
396 MORTGAGE. 
 
 cuts trees upon his premises and caxries them away. Whidden v. Seelye, 
 XL. 247. 
 
 47. And, in an action on such receipt, he is precluded from showing any 
 informality or invalidity in the attachment or judgment, while the latter is in 
 fSarce. Dreiv v. Livermore, xi. 266. 
 
 48. Where a mortgagee advertises to sell and convey the mortgaged pro- 
 perty, " to the full extent of the powers derived to or by him under and by 
 virtue of said deed, and not otherwise," he proposes only to exercise a leg^ 
 right ; and Jf his deed does not authorize him to sell, then he can convey 
 nothing, and no injury could be sustained by the mortgagers. Y. & G. B, B. 
 Co. v. Myers, xii. 109. 
 
 49. If a mortgager suffer a sale of the mortgaged premises in his presence, 
 under a reasonable misapprehension that there had been a foreclosure, and 
 that his right of redemption had expired, he does not thereby lose his rights. 
 Dixfield V. Newton, xii. 221. 
 
 50. L., upon dissolution of a co-partnership with A., received, as the consid- 
 eration for his interest in the concern, the notes of the latter, with a mortgage 
 on the late co-partnership property, " to secure L. for his liability on the part- 
 nership debts, for his liability to pay any other debts of A., and for the ulti- 
 mate, pajonent of the notes." Afterwards, the property was sold, with the 
 consent of the mortgagee, and a portion of the proceeds came into his hands, 
 with which he paid the co-partnership liabilities : — Held, that the avails of 
 the property were to be appropriated, first, to indemnify the mortgagee against 
 his company liabilities, and, then, the balance should be applied to the notes. 
 Low V. Allen, sxi. 248. 
 
 51. The lien of a mortgagee attaches equally for the debt and for the costs 
 necessarily incurred in the enforcement of his rights. Hurd v. Cole/man, 
 XIII. 182. 
 
 52. An assignee of a mortgage and the notes secured thereby may prose- 
 cute suits pending thereon, in the name of the assignor, to final judgment, for 
 his own benefit, and derive all the resulting rights that would have accrued to 
 the assignor. Hurd v. Coleman, xiii. 182. 
 
 Ill, TRANSFER OF RIGHTS IN MORTGAGED ESTATES. 
 
 (a) By conibaci. 
 
 (b) TJndeb legal pboobss. 
 
 (c) Geneeallt. 
 
 (a) By contract. 
 
 53. The interest of a mortgagee cannot pass at law, to a third person, 
 without an assignment, in some form, under seal, although the contract secured 
 by the mortgage has been assigned by vsriting without seal. Smith v. KeUey, 
 xxvii. 237. Dwinel v. Ferley, xxxii. 197. 
 
 54. A mortgagee's interest, after entry to foreclose, may be conveyed by 
 warranty deed. Lincoln v. White, xxx. 291. Hill v. More, XL. 515. 
 
 55. A quitclaim deed, purporting to convey lands, may operate as an as- 
 signment of a mortgage of them. Crooher v. Jewell, xxxi. 306. Diafidd 
 V. Newton, XLi. 221. 
 
 56. By the Act of 1789, an administrator of a mortgagee had authority to 
 assign the mortgage. Grooker v. Jewell, xxxi. 306. 
 
MORTGAGE. 397 
 
 57. At law, the transfer of the note, secured by a mortgage, does not 
 assign the mortgage. Bvnnel v. Ferley, xxxn. 197. 
 
 58 Where a mortgage was given to secure the performance of a bond, 
 conditioned for the support of the obligee and wife, and the mortgagee entered 
 for breach of condition of the mortgage and for foreclosure ; and a few months 
 afterwards conveyed the mortgaged property to the tenant, by an absolute 
 deed, with covenants of general warranty, but retainmg the bond himselt, and 
 took from the tenant a new bond, conditioned for the support of himself and 
 wife, and a new mortgage from the tenant to secure the fulfilment of said new 
 
 bond: — Held, — . , , , • i ^t. ^ 
 
 1st. That said warranty deed conveyed all the right which the mortgagee 
 had in the property mortgaged, to wit : a conditional fee with legal possession, 
 and also an equitable right to the original bond ; and — 
 
 2d. That said warranty deed did not interrupt the proceedings for fore- 
 closure. Bill V. More, XL. 515. 
 
 59. A quitclaim deed by a mortgagee, and the delivery of the notes secured 
 by the mortgagee, to those to whom the deed is made, operate as an assign- 
 ment of the mortgage. Dixfield v. Neivton, xli. 221. 
 
 (b) Under legal process. 
 
 60. The interest of a mortgagee in land, prior to foreclosure, is not at- 
 tachable. Lincoln v. White, xxx. 291. McLaughlin v. Shepherd, xxxil. 
 143. 
 
 61. Nor subject to a levy as his property. McLaughlin v. Shepherd, 
 XXXII. 143. Goomhs v. Warren, xxxiv. 89. Eandall v. Farnham, xxxti. 
 86. 
 
 (c) Generally. 
 
 62. Where a mortgage of lands, of which the mortgager has no recorded 
 title, is made (and duly recorded,) to him who is the absolute owner thereof 
 by the records, and the mortgagee assigns to another " all his right, title and 
 interest in and to the within mortgaged premises," and this assignment is 
 also recorded, such record must be regarded as notice of such assignment, to 
 after attaching creditors and purchasers of the mortgagee. Pierce v. OdUn, 
 XXTII. 341. 
 
 63. And such mortgagee, making such assignment, and those claiming 
 under him, as after attaching creditors and purchasers, are estopped to deny 
 the title of the assignee by virtue of the mortgage. Fierce v. Odlin, xxvn. 
 341. 
 
 64. If the purchaser had notice of an existing unrecorded mortgage, as 
 between him and the mortgagee, it is the same as if it had been recorded. 
 Gopeland v. Gopeland, xxtiii. 525. 
 
 IV. DISCHAKGE AND EXTINGUISHMENT OF A MORTGAGE. 
 
 65. The holder of an equity of redemption paid the amount secured by a 
 mortgage, without disclosing any intention of keeping the mortgage in force, 
 or taking any assignment of the same. Years afterwards, the mortgagee 
 assigned the mortgage and notes to the holder of the equity, so paying the 
 
398 MORTGAGE. 
 
 notes: — Held, that the mortgage was discharged. Given v. Marr, xxvii. 
 212. 
 
 66. A mortgage has, for its basis, the contract, the obligation of which is 
 intended to be secured ; and it ceases to have validity by the discharge of 
 that contract. Patch v. King, xxix. 448. 
 
 67. The parties may annul the collateral security -without aflFecting the 
 debt. Patch v. King, xxix. 448. 
 
 68. A mortgage of land can be discharged only by payment of the debt 
 secured by it, or by a release. Ellsworth v. Mitchell, xxxi. 247. Smith v. 
 Stanley, xxxvii. 11. 
 
 69. A renewal of the note, secured by such mortgage, is not such a pay- 
 ment as will discharge the mortgage, unless so' intended by the parties. 
 Ellsworth V. Mitchell, xxxi. 247. 
 
 70. Where the mortgagee takes, for the amount due upon the mortgage, 
 the note of the assignee of the mortgager, including annual interest, and gives 
 up to such assignee the notes of the mortgager, this, unexplained, is not to 
 be considered as a mere renewal of the mortgager's notes, but as a substitute 
 of a new security ; and will discharge the mortgage. Ellsworth v. Mitchell, 
 XXXI. 247. 
 
 71. When the purchaser of an equity of redeeming mortgaged land he- 
 comes also the assignee of the mortgage, there is not necessarily an extin- 
 guishment of either estate. Simonton v. Gray, xxxiT. 50. 
 
 72. If substantial justice may be promoted, the mortgage may be upheld 
 by the assignee, according to his intention or his interest. Simonton v. Gray, 
 XXXIT. 50. Kinnear v. Lowell, xxxiv. 299. 
 
 73. A mortgage is not discharged, under all circumstances, by a payment 
 of the debt secured, if made by one not at the time owner of the equity, 
 even if he were the mortgager. Kennear v. Lowell, xxxiv. 299. 
 
 74. Thus, such a payment coerced from the mortgager, who had previously 
 conveyed the land by deed of warranty, subject to the mortgage, is not a 
 discharge. Kinnear v. Lowell, xxxiv. 299. 
 
 75. And if, after such payment, the mortgager obtain an assignment of the 
 mortgage, he may be considered the assignee of the mortgage and compel a 
 re-payment from his grantee. Kinnear v. Lowell, xxxiv. 299. 
 
 76. If notes, secured by mortgage on land, are paid when or before they 
 are due, by an absolute deed of the land mortgaged and other land, the title 
 under the mortgage is extinguished. Whitcomb v. Simpson, xxxix. 21. 
 
 V. REDEMPTION. 
 
 (a) Who mat sedeem, wheit, prom whom and how. 
 
 (b) Adjustment op accounts. 
 
 (c) Bills in equity to eedeem. 
 
 (a) Who may redeem, when, from whom and how. 
 
 77. A grantee of a part of mortgaged premises can redeem his interest, 
 only by payment of the whole amount due on the mortgage. Smith v. Kelley, 
 xxvii. 237. 
 
 78. Though a conveyance of land by A. be fraudulent and void as to cred- 
 itors, and notes be taken therefor, secured by a mortgage of the same land. 
 
MORTGAGE. 399 ' 
 
 the assignee of the mortgager is entitled to redeem as against any holder of 
 the mortgage not claiming as a creditor of A., or standing in a relation which 
 would entitle him to such an objection as a creditor might make, bprague 
 V. Graham, xxix. 160. 
 
 79. In such case, (except as to creditors or parties having the rights of 
 creditors of A.,) the notes and mortgage are valid in the hands of an innocent 
 indorsee and assignee, but are subject to equities if indorsed when over due. 
 Sprague v. Oraham, xxix. 160. 
 
 80. If the mortgager of land, or his assignee, convey the same by deed of 
 warranty, he is no longer entitled to redeem against the mortgage. Elder v. 
 True, XXXII. 104. 
 
 81. His grantee is under no obligation to redeem. Elder v. True, xxxii. 
 104. 
 
 82. A widow has the right to redeem real estate, mortgaged by her husband 
 during coverture, although the rights of the mortgagee and also of the mort- 
 gager have both come by assignment to the defendant, and although, in the 
 mortgage deed, she relinquished her right of dower. Simonton v. Gray, 
 XXXIV. 50. 
 
 83. Several conveyances by a mortgager of distinct parts of the land give 
 to each of the grantees, and persons claiming under them respectively, the 
 right of redeeming ; though not without paying the whole amount due on the 
 mortgage. Bailey v. Myrick, xxxvi. 50. 
 
 84. The mortgager has three years from the time of the last publication in 
 which to redeem his mortgage, when the foreclosure has been effected by 
 publishing notice in a newspaper under the statute. Eolbrook v. Thomas, 
 xxxviii. 256. 
 
 85. If a mortgager suffer a sale of the mortgaged premises, in his pres- 
 ence, without making known his claim, but under a reasonable apprehension 
 that there had been a foreclosure, and that his right of redemption had expir- . 
 ed, he 'does not thereby lose hie rights. Dixfield v. Newton, xii. 221. 
 
 86. Such a conveyance was made to a town by deed, and the notes secured 
 by mortgage transferred, the mortgager being present and assenting, under a 
 misunderstanding of his rights. The mortgager released certain claims he 
 had against the town, and the town contracted to convey the premises to his 
 son-in-law, on condition that he should support the mortgager and wife : — 
 Held, that this arrangement did not change the position of parties in relation 
 to the title to the land. Dixfield v. Newton, xii. 221. 
 
 87. After the notes and deed were delivered to the committee of the town, 
 the notes were passed into the hands of the mortgager : — Held, that such de- 
 livery did not constitute a redemption of the mortgage, no value having been 
 paid by him therefor. Dixfield v. Newton, xli. 221. 
 
 (b) Adjustment of accounts. 
 
 88. If an assignee purchase the mortgage by the payment of a sum less 
 than the amount actually due, still the mortgager or his assignee will not be 
 entitled to redeem without payment of the full amount. Pease v. Benson, 
 XXVIII. 336. 
 
 89. The net avails of timber, taken by a third person, from mortgaged 
 land, must be appropriated toward the extinction of the mortgage, if such 
 
' 400 MORTGAGE. 
 
 taking was witli the approbation of tie mortgager and mortgagee, upon an 
 understanding that such third person should thus appropriate it. Howe v. 
 Bussell, xxxTi. 115. 
 
 90. This rule is not affected by the existence of a prior outstanding 
 mortgage, if the prior mortgagee do not claim the appropriation. Howe v. 
 Bussell, XXXVI. 115. 
 
 91. The holder of a personal claim, with a mortgage of land as collateral, 
 may recover the balance due on the debt, after foreclosure, by a suit at law. 
 And, by permitting the foreclosure, the mortgager waives all claim to be al- 
 lowed in such suit for the net income which accrued to the mortgagee from the 
 land during the three years of foreclosure. Porter v. Pillshury, xxxvi. 278. 
 
 92. In redeeming land, of which the mortgagee had taken possession for a 
 foreclosure, if he account for the net incomes actually received, the burden is 
 upon the mortgager to show a want of ordinary care in its management. Por- 
 ter V. Pillsbury, xxxvi. 278. 
 
 (c) Bills in equity to redeem. 
 
 93. If a mortgager, or his assignee, would enable himself to maintain a 
 bill in equity to redeem the premises from the mortgage by means of a tender 
 of the amount due, he must make the tender to the mortgagee or person 
 claiming under him, and not to an assignee of the contract secured by the 
 mortgage. Smith v. Kelley, xxvii. 237. 
 
 94. It was the design of R. S. of 1841, c. 125, § 16, to enable the mort- 
 gager, in certain cases, to maintain a bill in equity to redeem a mortgage, 
 without the performance, or tender of performance, of the condition ; but not 
 to authorize him to recover costs, unless prevented from doing it by some act 
 of the mortgagee or his assignee. Pease v. Benson, xxviii. 336. Bourne 
 v. Littlefield, xxix. 302. Sprague v. Graham, xxxviii. 328. 
 
 95. The mere denial of the right of the mortgager to redeem will not pre- 
 vent his tendering performance, and, of itself, will not authorize the awarding 
 of costs to the complainant. Pease v. Benson, xxviii. 336. 
 
 96. And any failure to afford information of the exact amount claimed to 
 be due upon the mortgage, to the party seeking to redeem, and within a 
 reasonable time alter request, is an unreasonable neglect and refusal under the 
 statute. Pease v. Benson, xxviii. 336. 
 
 97. A party who comes into a court of equity to redeem a mortgage, al- 
 though entitled to redeem, must pay cost to a defendant who is not in fault. 
 Bourne v. Littlefield, xxix. 302. 
 
 98. A biU in equity to redeem cannot be maintained, when the mortgagee 
 is not in possession, and when the condition of the mortgage has been fulfilled. 
 Chadiourne v. Backliff, xxx. 354. 
 
 99. A bill for redemption may be maintained without a previous payment 
 or tender, if the mortgagee, or person claiming under him, shall have neglected 
 on request to render, before the commencement of the suit, a true account of 
 the sum due and secured by the mortgage. Boby v. Skinner, xxxiv. 270. 
 
 100. After such request, the mortgagee is to be the moving party, not only 
 in making up the account, Ijut also in rendering it to the mortgager ; for which 
 a reasonable time is allowed. Bohy v. Skinner, xxxiv. 270. 
 
 101. Though the mortgager, in demanding the account, may have prescribed 
 
MORTGAGE. 401 
 
 a time unreasonably short, in which it should be rendered, that will not excuse 
 a neglect to do it in a reasonable time. Bohy v. Skinner, xxxiT. 270. Far- 
 well V. Sturdivant, xxxTil. 308. 
 
 102. Where a mortgager had made several conveyances of distinct parts of 
 the mortgaged land, in a bill in equity to redeem, by one of such grantees, or 
 any person claiming under him, it is requisite that all other persons holding 
 under any of such conveyances should be made parties to the bill. Bailey 
 V. Myrick, xxxvi. 50. 
 
 103. If the answer of the mortgagee shows information to have been re- 
 ceived by him from the mortgager, that the right of redemption has been as- 
 signed to a third person, such third person must be made a party. Bailey v. 
 Myrick, xxxvi. 50. 
 
 104. In a bill to redeem, by the assignee of the mortgager, the latter need 
 not be made a party, if he have transferred all his interest in the subject mat- 
 ter. Bailey v. Myrick, xxxvi. 50. 
 
 105. A master in chancery, commissioned to ascertain the aniount due up- 
 on an outstanding mortgage, has no jurisdiction to adjudicate upon the titles 
 to the estate mortgaged. Howe v. Eussell, xxxvi. 115. 
 
 106. A court of equity, having jurisdiction of a suit for the redemption of 
 mortgaged lan^, upon payment of the mortgage debt, may require, in such 
 suit, that any over payment, made to the mortgagee upon such debt, shall 
 be refunded, without resort to an action at law. Farwell v. Sturdivant, 
 XXXVII. 308. ' • 
 
 107. A written notice upon a mortgagee, for an exhibit of the amount due, 
 is not necessarily to be delivered by the mortgager personally ; but a service 
 of it by an officer is sufficient. Farwell v. Sturdivant, xxxvii. 308. ' 
 
 108. A mortgagee in possession for foreclosure, who neglects to render an 
 account of rents and profits on lawful demand, and claims a greater sum than 
 is due upon the mortgage, is liable for costs in the suit to redeem. Sprague 
 V. Graham, xxxviii. 328. 
 
 109. A failure to pay the debt secured by a mortgage, at the time it is due, 
 will interpose no obstruction, .in a suit in equity, to a redemption by the mort- 
 gager, although a provision is incorporated into the mortgage that the mort- 
 gagee shall hold the land free from the right of redemption, if the debt is not 
 paid at maturity. Baxter v. Child, xxxix. 110. 
 
 110. It is not for the Court, in a suit in equity, brought to redeem mort- 
 gaged premises, to ascertain the amount due, upon the payment of which the 
 plaintiff is entitled to a conveyance ; that is for the master. Jewett v. Guild, 
 xiii. 246. 
 
 VI. FORECLOSURE. 
 
 111. Under the statute of 1821, c. 39, the foreclosure of a mortgage can- 
 not be made " by written consent of the mortgager," without an actual entry 
 by the mortgagee, or person claiming under him, for condition broken. Pease 
 V. Benson, xxviii. 336. Storer v. Little, xli. 69. 
 
 112. It cannot be caused by the viritten admission of parties, in a manner 
 not authorized by the statute. Pease v. Benson, xxviii. 336. 
 
 113. Under the Act of 1839, c. 372, a written surrender of possession of 
 mortgaged land, by the mortgager to the mortgagee, for the purpose of fore- 
 
 51 
 
402 MORTGAGE. 
 
 closure, is ineffectual unless recorded within thirty days from its date. South- 
 ard V. Wilson, XXIX. 56. 
 
 114. Under statute of 1821, c. 39, § 1, when the mortgager has conveyed 
 the right of redemption, the consent to an entry for foreclosure must be ob- 
 tained from the party " claiming under him." Chase v. Gates, xxxin. 
 363. 
 
 115. If one, to whom such right of redemption has been transferred, shall 
 convey the same, taking back a mortgage, the entry to foreclose the first 
 mortgage must be by consent of the same mortgagee. Chase v. Gates, 
 XXXIII. 363. 
 
 116. Possession of land for twenty years, by a mortgagee, without any 
 payment of principal or interest by the mortgager, or any dealings between 
 him and the mortgagee in relation to the land, is presumptive evidence of a 
 foreclosure. Blethen v. Bwinal, xxxv. 556. 
 
 117. The intention of the mortgagee, however clearly expressed, without 
 showing he has performed the acts necessary to that purpose, will be ineffec- 
 tual to establish a foreclosure. Morris v. Day, xxxvii. 386. 
 
 118. To effect a foreclosure by " taking peaceable and open possession in 
 presence of two witnesses," &c., the certificate by them signed and recorded 
 must contain all the facts essential to that purpose. Morris v. Day, xxxvii. 
 386. 
 
 119. Hence, the certificate must state that an entry was made for breach 
 of the condition of the mortgage, and the time when it was made. Morris 
 V. Day, XXXVII. 386. 
 
 120. And such witnesses cannot testify to any facts not contained in their 
 certificate. Morris v. Day, xxxvii. 386. 
 
 121. To render a foreclosure under the second mode provided in R. S. of 
 1841, c. 125, effectual, an entry must be proved. A written consent to enter 
 is not evidence of an entry. Chamberlain v. Gardiner, xxxviii. 548. 
 Storer v. Little, xli. 69. 
 
 122. The possession required to be held by the mortgagee is equivalent to 
 an actual possession. Chamberlain v. Gardiner, xxxviii. 548. 
 
 123. Such possession is not provable from the consent in writing by the 
 mortgager, that he may enter, and that possession is thereby given. Chamber- 
 lain V. Gardiner, xxxviil. 548. 
 
 124. Neither will an admission by the mortgager that the " foreclosure was 
 out," have any effect, the legal steps to effect a foreclosure not having been 
 taken. Chamberlain v. Gardiner, xxxviii. 548. 
 
 125. Under a mortgage of real estate to secure a bond with certain con- 
 ditions, in which was also this stipulation: — "that should either party be 
 dissatisfied with the fulfilling of the above bond, it shall be submitted to" 
 certain persons named, " and their decision to be final," the mortgagee may 
 enter for breach of condition, without resorting to the opinions of the arbi- 
 trators named in the bond. Hill v. More, XL. 515. 
 
 126. And, in an action involving the legality of the foreclosure, other 
 evidence of the breach of the bond is admissible. Hill v. More, XL. 515. 
 
 127. Act of 1839, c. 372, additional, makes provision only as to the man- 
 ner of authenticating notice of such entry and its registry. Storer v. Little, 
 xli. 69. 
 
 128. A mortgage can be kept open by the express agreement of the parties, 
 
MORTGAGE. 403 
 
 or by facts from which an agreement may be satisfactorily infen-ed ; but, in 
 order to be effectual, it must be made by the mortgagee, or some one having 
 an interest under him at the time. Fisher v. Shaw, xlii. 32. 
 
 129. The assignment of a mortgage, after an entry for a foreclosure, will 
 not of itself stay the foreclosure. Hill v. More, xl. 515. Hurd v. Cole- 
 man, XLII. 182. 
 
 130. The assignee of a mortgage, after having recovered judgment in the 
 name of the assignor, but for his own benefit, and before the writ of posses- 
 sion issued, entered into the premises, openly, peaceably, and with the assent 
 of the mortgager, and continued in possession after the writ issued : — Held, 
 that, from the time the -writ of possession issued, the assignee could protect 
 and justify his possession, under the statute of 1821, by "process of law," 
 and that the foreclosure commenced at the date of such writ, and it was com- 
 pleted in three years thereafter. Hurd v. Goleman, xlii. 182. 
 
 131. An entry by the mortgagee, without force, after the writ of possession 
 had issued, or after the time within which by law it should have issued, would 
 be an entry " by process of law," and would as effectually foreclose the mort- 
 gage as if he had been put in possession by an officer having the writ. Hurd 
 V. Goleman, xlii. 182. 
 
 132. A. conveyed to B. certain real estate, subject to a mortgage given by 
 himself to a third person, and took back a bond conditioned to re-convey by 
 quitclaim deed a certain portion of the premises, whenever A. should clear the 
 remainder from incumbrance. C. agreed verbally with A., to take up this 
 mortgage and assign it to the latter, on payment of the amount by him within 
 a specified time. C. obtained an assignment of the mortgage to himself, and 
 before the expiration of the time agreed upon with A., assigned it to B. : — 
 Held, — 
 
 1st. That the contract was for the sale of an interest in lands, and, not 
 being in ^vTiting, no action could be maintained thereon : — 
 
 2d. That being without consideration, it was not a waiver of the right to 
 a re-payment of the mortgage within the time required by law to prevent a 
 foreclosure : — 
 
 3d. That as A. did not furnish the consideration paid for the assignment, 
 there was no foundation for a trust in C. by implication: — and, — 
 
 4th. That the non-fulfillment by C, or his assigns, furnished no basis for a 
 suit under the head of fraud. Fisher v. Shaw, xlii. 32. 
 
 See Payment, 6. 
 
 Va. ACTIONS AT LAW, AND JUDGMENTS THEREON. 
 
 133. The commencement and prosecution of an action upon a mortgage, 
 amounts to a waiver of any prior entry to foreclose the same. Smith v. Kel- 
 ley, xxvii. 237. 
 
 134. The mortgagee may maintain an action to recover the possession, 
 without proof that the condition has been broken, unless there is a stipula- 
 tion in the mortgage to the contrary. Allen -f. Parker, xxvii. 531. Clay 
 V. Wren, xxxiv. 187. Brown v. Leach, xxxv. 39. Norton v Well 
 XXXV. 218. ' 
 
 135 If the mortgage debt has been paid, no action can be maintained 
 upon the mortgage, though it has not been formally discharged. Ellsworth 
 V. Mitchell, XXXI. 247. Williams v. Thurlow; xxxi 392 
 
404 MORTGAGE. 
 
 136. One who holds a mortgage of land made to a third person, together 
 with the notes secured by it, can maintain no action upon the mortgage, 
 unless the same had been assigned in writing. Lyford v. Ross, xxxiii. 
 197. 
 
 137. An agreement, forbidding a mortgagee from maintaining an action 
 upon the mortgage before condition broken, may arise by implication from 
 the mortgage and the written instruments executed with it, and intended to 
 carry into effect the purposes of the parties. Clay v. Wren, xxxiT. 187. 
 
 138. Thus, where a mortgage, given to secure the price of a farm, was 
 conditioned for the delivery, at the mortgager's barn, of a specified quantity 
 of hay, for ten successive years, of an average quality with that cut by the 
 mortgager upon the farm, the Court will infer that the hay was to be cut by 
 the mortgager on the farm, and that in order to do so, he was to retain pos- 
 session, until a breach of the condition. Glay V. TFrera, xxxiT. 187. 
 
 139. Where the condition of the mortgage was merely for the delivery of 
 the hay, but a note was given by the mortgager to the mortgagee at the same 
 time for the same quantity of hay, deliverable at times and places specified 
 in the mortgage, and also stating the quality and value of the hay, the Court 
 will consider that the mortgage was intended to secure the note, although 
 no note be referred to in the mortgage. Glay v. Wren, xxxiv. 187. 
 
 140. Such an agreement is also contained in the mortgage, "that the 
 mortgager should fulfill a bond which he had given to maintain the mortgagee 
 upon the farm, and to keep the farm in good order." Brown v. Leach, xxxT. 
 39. Norton v. Well, xxxv. 218. 
 
 141. An agreement, forbidding the mortgagee to obtain possession before 
 breach of the condition, must be in writing. Norton v. Webb, xxxv. 218. 
 
 142. An action upon a mortgage, to obtain a foreclosure, may be brought 
 and maintained by the surviving mortgagee. Williams v. Hilton, xixv. 547. 
 
 143. In the conditional judgment in favor of a mortgagee, there may be in- 
 cluded sums paid by him for taxes, though assessed while out of his posses- 
 sion. Williams v. Hilton, xxxv. 547. 
 
 144. If, in addition to the mortgaged land, the mortgager be also in posses- 
 sion of adjoining land, it is his duty to cause the tax upon the mortgaged part 
 to be separately assessed. And, if he omit that duty, and the tax be assess- 
 ed on both lots collectively, without showing how much of it was upon the 
 mortgaged part, the mortgagee, in order to prevent a forfeiture, may pay the 
 whole tax, and include its amount in his conditional judgment upon the 
 mortgage. Williams v. Hilton, xxxv. 547. 
 
 145. No conditional judgment can be rendered in behalf of a mortgagee or 
 his assignee, unless he prove both an indebtment and its amount. Blethen v. 
 Dwinal, xxxv. 556. 
 
 146. An obligation under seal, given by the grantee at the time of his deed, 
 to re-convey on the payment of a certain sum of money, operates as a deed of 
 defeasance between the parties, though unrecorded. And, in an action by 
 such grantee to recover the premises after forfeiture of the obligation, he will 
 be entitled to a conditional judgment only, but for no rents. Jackson v. 
 Ford, XL. 381. 
 
MORTGAGE. 405 
 
 VIII. MORTGAGE OF CHATTELS. 
 
 147. A mortgage of personal property passes no title until delivery of the 
 mortgage ; a delivery of the property therein described not being sufficient 
 proof of the delivery of the mortgage. Jewett v. Preston, xxvii. 400. Fos- 
 ter V. Perkins, xlii. 168. 
 
 148. If a mortgage of personal property stipulate that it shall become void 
 upon the payment of two notes, particularly described by their amounts and 
 dates, and the mortgagee never had any notes of such description, the mort- 
 gagee acquires nothing by his mortgage, although, at the time, he held three 
 other notes against the mortgager for different sums, and with different dates. 
 Jewett v. Preston, xxvii. 400. 
 
 149. The mortgagee of personal property, even after he has taken posses- 
 sion, but before foreclosiire, may waive his lien under his mortgage and attach 
 the same upon the debt secured by it. Libhy v. Gushman, xxix. 429. 
 
 150. A mortgagee, who thus waives his mortgage lien, has no longer a title 
 to the property as owner, and consequently is not obliged to account for its 
 value. Libhy v. Gushman, xxix. 429. 
 
 151. The right of possession in such mortgage is in the mortgagee, before 
 as well as after a breach of condition, unless controlled by some agreement 
 between the parties. Lihhy v. Gushman, xxix. 429. Pierce v. Stevens, 
 
 XXX. 184. Stewart v. Hanson, xxxt. 506. Foster v. Perkins, xiil. 168. 
 
 152. A mortgage of personal property, given to sureties to protect them 
 against their suretyship, is not in force after the creditor has discharged the 
 sureties. Sumner v. Bachelder, xxx. 35. 
 
 153. Thus, where a debtor gave to his sureties such a mortgage to secure 
 them against their suretyship upon a note, and they assigned the mortgage to 
 the creditor for his security, taking from him a discharge, under seal, of their 
 liability on the note, the mortgage is thereby discharged. Sumner v. Bach- 
 elder, xxx. 35. 
 
 154. Parol evidence is admissible to prove, that, at the time of making a 
 mortgage of personal property, the parties agreed that the possession should 
 remain with the mortgager. Pierce v. Stevens, xxx. 184. 
 
 155. If a town clerk omit to note the time when he received a mortgage of 
 personal property to be registered, the mortgage wiU take effect from the time 
 when it was actually recorded. Holmes v. Sprowl, xxxi. 73. Head v. Good- 
 win, XXXVII. 181. 
 
 156. The right of possession of personal property mortgaged, is presumed 
 to be in the mortgagee, unless it appear that the mortgager retained the right. 
 Holmes v. Sprowl, xxxi. 73. 
 
 157. Although the mortgagee of personal property may have taken posses- 
 sion for condition broken, the law does not appropriate the property to the 
 payment of the debt, until the expiration of the sixty days foreclosure. Go- 
 veil V. Dolloff, XXXI. 104. 
 
 158. And, while thus in possession, he is bound only to ordinary diligence 
 for the preservation, while the right of redemption exists. Govell v. Dolloff, 
 
 XXXI. 104. ■" 
 
 159. If the property be destroyed, without his fault, while thus holding it 
 for security of his debt, he is not bound to account for its value. Govell v 
 Dolloff, XXXI. 104. 
 
 160. A mortgage of personal property, given to secure the mortgagee from 
 
406 MORTGAGE. 
 
 a contingent liability as an indorser, or surety, upon negotiable paper, is dis- 
 charged by a payment of such paper. FranJdin Bank v. Pratt, xxxi. 501. 
 
 161. Where a mortgager of personal property, (made to the defendant to 
 secure him as indorser of a note and acceptor of a draft,) was released by the 
 defendant for the purpose of using him as a witness, in an action against such 
 indorser and acceptor, such release is a discharge of the mortgage. Frank- 
 lin Banh v. Pratt, xxxi. 501. 
 
 162. Personal property, under mortgage, and remaining by its terms in pos- 
 session of the mortgager, is not attachable as the property of the mortgagee. 
 Morton v. Modgdon, xxxii. 127. 
 
 163. If mortgagees of personal property, when summoned as trustees af 
 the mortgager, would rely upon the foreclosure, they must state the conditions 
 of the mortgage, and that a foreclosure had occurred. Dexter v. Field, xxxii. 
 174. 
 
 164. A mortgage of personal property, made to a number of persons to se- 
 cure them against their liabilities, as indorsers for the mortgager, is not inval- 
 idated by the fact that no two of the mortgagees were liable upon any one 
 paper. Wheeler v. Nichols, xxxii. 233. 
 
 165. Should any trespass be committed upon the rights derived under the 
 mortgage, the action for redress may be brought jointly by all the mortgagees. 
 Wheeler v. Nichols, xxxii. 233. 
 
 166. The owner of personal property, attached and retained by the officer 
 or his bailee, may transfer his interest therein either absolutely or in mort- 
 gage, subject to the attachment lien, Wheeler v. Nichols, xxxii. 233. 
 
 167. When such a mortgage has been made, and the bailee of the attach- 
 ing officer consents to hold the goods as servant of the mortgagee, and actu- 
 ally holds for him, there is such a taking of delivery and retaining posses- 
 sion by the mortgagee as to render the record of the mortgage unnecessary, 
 although the debt secured thereby exceeds thirty dollars. Wheeler v. Nichols, 
 XXXII. 233. 
 
 168. In trover for an article mortgaged to the plaintiff, the mortgage alone 
 is prima facie evidence of property in him, as against a subsequent vendee 
 of the mortgager. Brooks v. Briggs, xxxii. 447. 
 
 169. And if the defence be set up that the mortgage debt has been paid, 
 the onus is on the defendant. Brooks v. Briggs, xxxii. 447. 
 
 170. Though a mortgager of a chattel, by the terms of the mortgage, 
 should be entitled to possession of the property mortgaged, till the pay-day of 
 the debt, yet an unconditional sale of it by the mortgager will authorize the 
 mortgagee to take immediate possession. Whitney v. Lowell, .xxxiii. 318. 
 
 171. A conveyance of chattels, unconditional in its form, need not be re- 
 corded, although intended merely for security, and although the chattels are 
 permitted to remain in possession of the vendor, and the debt thereby secur- 
 ed is more than thirty dollars. Knight v. Nichols, xxxiv. 208. 
 
 172. Whether the adoption of that form would be indicative of a fraudu- 
 lent intent, as against creditors, would be for the jury. Knight v. Nichols, 
 XXXiT. 208. 
 
 173. A mortgage of chattels transfers to the mortgagee the legal title, 
 subject to be defeated upon a redemption within the stipulated time. Stewart 
 V. Hanson, xxxT. 506. 
 
 174. If mortgaged personal property is not redeemed within sixty 
 
MOETGAGE. 407 
 
 after breach of the condition, the title of the mortgagee becomes absolute by 
 operation of law. Thompson v. Moore, xxxti. 47. Glapp v. Glidden, 
 XXXIX. 448. 
 
 175. But he may extend the time of performance and waive the forfeiture. 
 Thompson v. Moore, xxxyi. 47. 
 
 176. And a sale by the mortgagee of a part of the goods, before the time 
 of foreclosure had expired, implied an understanding that a disposition should 
 be made of the property different from that prescribed by law. Thompson v. 
 Moore, XXXTI. 47. 
 
 177. In such case, the mortgager may recover the surplus avails over the 
 amount due upon the mortgage. Thompson v. Moore, xxxvi. 47. 
 
 178. The validity of a mortgage of chattels is not impaired, from the fact 
 that it is recorded upon a book of town records. Head v. Goodwin, xxxvii. 
 181. 
 
 179. A certificate of the town clerk on the back of such mortgage, as' to 
 when it was received, is legal evidence of the fact so certified. Mead v. 
 Goodwin, XXXVII. 181. Stevens v. Whittier, xliii. 376. 
 
 180. And when he further certifies that he has recorded it, without other 
 date than that of its reception, that is to be taken as the time it was recorded. 
 Head v. Goodwin, xxxvii. 181. Stevens v. Whittier, xiiii. 376. 
 
 181. The recording of such a mortgage supersedes the necessity of noting, 
 in the book of records, the time when it was received. Head v. Goodwin, 
 XXXVII. 181. McLarren v. Thompson, xi.. 284. 
 
 182. A mortgage of personal property, to be valid against others than the 
 parties to it, must be recorded, or the possession of the property taken and 
 retained by the mortgagee. Beeman v. Lawton, xxxvii. 543. 
 
 183. A delivery of personal property for security is not a transfer on con- 
 dition, and does not constitute a mortgage thereof, but a pledge merely. 
 Beeman v. Lawton, xxxvii. 543. 
 
 184. A promissory note, given for a specific sum for a cow, in which it is 
 stipulated that the cow shall remain the property of the promisee until the 
 note is^ fully paid, is in the nature of a mortgage, and the promisee, where 
 there is no stipulation to the contrary, is entitled to the possession of the 
 property until the note is paid. Woodman v. Ghesley, xxxix. 45. 
 
 185. And where such a note and contract were made for security only of 
 the payment of another note by the same maker, for a yoke of oxen, con- 
 taining a similar provision as to the oxen, the taking possession of the oxen 
 by the promisee, before their maturity, although they were of the fuU value of 
 the note, will not impair his right to the cow, before their maturity. Wood- 
 man V. Ghesley, xxxix. 45. 
 
 186. Such contracts are valid both before and after assignment. Wood- 
 man V. Ghesley, xxxix. 45. 
 
 187. To avoid a mortgage as fraudulent as against creditors the mortgagee 
 must be connusant of, and participant in, the fraudulent design. McLarren 
 V. Thompson, xl. 284. 
 
 188. A note, given by two persons as part payment for a mare, containing 
 these words:— "said mare to be holden to J. S. G., (one of the signers,) for 
 the amount he may pay for the same," is not a mortgage, and need not be 
 recorded. Gushee v. Bobinson, xl. 412. 
 
 189. It is not essential, to the validity of a mortgage of personal property. 
 
408 MTIMCIPAL COURT.— MUBDEE. 
 
 that a schedule of the goods therein referred to, but not made a part of it, 
 should be recorded. Chajoin v. Cram, XL. 561. 
 
 190. A mortgage of a stock of 'goods, containing a clause that goods which 
 might thereafter be purchased by the mortgager, to replace those enumerated, 
 as also all additions to the stock, should be held for the payment of the notes 
 recited, will not transfer to the mortgagee goods afterwards purchased and put 
 in with the stock by the mortgager. Chapin v. Cram, xi. 561. 
 
 191. A mortgage of chattels dated Nov. 9, 1854, but recorded as dated 
 March 29, 1854, is not valid as against attaching creditors. Stedman v. 
 Perkins, xiii. 130. 
 
 192. The delivery of a mortgage to the register, and its subsequent' pos- 
 session by the mortgagee, in the absence of other proof, are sufficient evidence 
 of its delivery. The date of a mortgage is prima facie evidence that it was 
 then delivered. Foster v. Perkins, xtil. 168. 
 
 193. The statute makes no distinction between resident and non-resident 
 mortgagees. Foster v. Perkins, xlii. 168. 
 
 194. The Act of United States of July 29, 1850, relating to the record of 
 mortgages, &c., of vessels, applies only to vessels which have been registered 
 or enrolled at the time the mortgage is made. Before such registry or enroll- 
 ment, mortgages upon vessels are governed by the statutes of the State, 
 relating to mortgages of personal property. Foster v. Perkins, XLir. 168. 
 
 195. A. mortgaged a vessel to B., conditioned that A. should retain posses- 
 sion of, and keep the vessel in N. Y., for a certain period for the purpose of 
 selling her to liquidate the mortgage debt : — Held, that the right of possession 
 by the mortgager was not such as to deprive the mortgagee of the right to 
 take actual possession as against a tort feazor ; and that the mortgager was 
 the agent of the mortgagee, and that he had a qualified possession for the 
 mortgagee's benefit. Foster v. Perkins, xlii. 168. 
 
 See Attachment, 3, 14. 
 
 MUNICIPAL COURT. 
 
 1. The Act incorporating the city of Augusta provided for the establish- 
 ment of a Municipal Court, consisting of one Judge who should have " concur- 
 rent jurisdiction with justices of the peace in aE matters, civil and criminal, 
 within the county of Kennebec. Hersom, pet'r, xxxix. 476. 
 
 2. A conviction, under the Act of 1855, c. 166, § 2, of a violation of its 
 provisions, before such Judge, and sentence thereon, are illegal and void. 
 Hersom, pefr, xxxix. 476. 
 
 MURDER. 
 
 1. The rule of common law is in force in this State, that, when the death 
 of a human being occurs by the act of one, who is in pursuit of an unlawful 
 design, without any intention to kill, it will be either murder or manslaughter, 
 
MUEDEE. 409 
 
 according as the intended offence is a felony or misdemeanor. State v. Smith, 
 XXXII. 369. Smith v. State, xxxiii. 48. 
 
 2. Whether such intended offence be a felony or misdemeanor is to be as- 
 certained by our statute classification. State v. Smith, xxxii. 369. 
 
 3. Any crime Ualle to be punished by imprisonment in the State prison 
 is a felony ; although, by statute,' made punishable in the alternative, either in 
 the State prison, or the county jail, or by a fine. State v. Smith, xxxii. 
 369. Smith v. State, xxxiii. 48. 
 
 4. In an indictment for murder, alleging the act to have been done with a 
 specified instrument, it is not necessary to be proved that the act was done 
 ■with that particular instrument, if the nature of the violence and the kind of 
 death occasioned by the means proved, be the same. State v. Smith, xxxii. 
 369. 
 
 5. The using of any means, with intent to " destroy" the child of which a 
 female is pregnant, and the destroying of the child thereby before its birth, 
 unless done to preserve the life of the mother, constitute a felony. And if, by 
 the use of such means and with such intent, the death of the mother be oc- 
 casioned, it is murder. Smith v. State, xxxiii. 48. 
 
 6. The using of means, with intent to procure the miscarriage of a preg- 
 nant female, and the procuring the miscarriage thereby, unless done to pre- 
 serve the life of the mother, is a misdemeanor. And if, by the use of such 
 means and with such intent, the death of the mother be occasioned, it is 
 manslaughter. Smith v. State, xxxiii. 48. 
 
 7. If, upon such a charge in an indictment, a verdict of murder be rendered, 
 it will be reversed for error. Smith v. State, xxxiii. 48. 
 
 8. To convict one of a felonious assault, with intent of his malice afore- 
 thought to kiU and murder, the evidence must be such that if death had 
 ensued he would have been guilty of murder. State v. Neal, xxxvii. 468. 
 
 9. At common law, express malice is where one, with a sedate and liberal 
 mind, and formed design, does kill another, which formed design is evidenced 
 by external circumstances, discovering the inward intention. State v. Neal, 
 XXXVII. 468. 
 
 10. Malice is implied by law from any deliberate, cruel act^ committed by 
 one person against another, suddenly, Avithout any or without considerable 
 provocation. State v. Neal, xxxvii. 468. 
 
 11. Chapter 154, § 29 of R. S. of 1841, recognizes, as distinct offences, an 
 assault with intent to murder, and an assault with intent to kill, unknown to 
 the common law. State v. Waters, xxxix. 54. 
 
 12. An assault, with intent to murder, necessarily involves an assault with 
 intent to kill ; and where a party is accused of the greater, the jury are au- 
 thorized to find him guilty of the lesser offence. State v. Waters, xxxix. 54. 
 
 13. Murder is the unlawful killing of a human being with malice afore- 
 thought, either expressed or implied. State v. Gonley, xxxix. 78. 
 
 14. Murder of the first degree is the unlawful killing of a human being, 
 with express malice aforethought, or in perpetrating or attempting to perpe- 
 trate any crime punishable with death, or imprisonment in the State prison 
 for life, or for an unlimited term of years. State v. Gonley, xxxix. 78. 
 
 15. Murder of the second degree is any murder, committed otherwise than 
 set forth in the preceding paragraph. State v. Gonley, xxxix. 78. 
 
 See PuBSUMPTioN, 10. 
 52 
 
410 NEW TRIAL. 
 
 NEW TRIAL. 
 
 I. GENERALLY. 
 II. NEWLY DISCOVERED EVIDENCE, 
 in. MISTAKE OR FAULT OF JURORS. 
 IV. ERRORS OF THE COURT. 
 
 I. GENERALLY. 
 
 1. The fact that the assured, in his affidavit, estimated the value of the 
 goods consumed at $2800, and the jury returned a verdict for $1853 only, 
 is not such evidence of fraud and false swearing as, will justify the Court in 
 granting a new trial. Moore v. Protection Ins. Co., xxix. 97. 
 
 2. Where, upon a writ of error, it does not appear but that the original 
 action might have been maintained, though there is error in the proceedings, 
 the judgment must be reversed and a new trial be granted. Crawford v. 
 Howard, xxx. 422. 
 
 3. A motion to set aside a verdict, on proof that a juror was related to 
 one of the parties, cannot prevail, if, at the opening of the case to the jury, 
 the party making the motion was present and knew of the disqualification, 
 and did not object, Dolloff v. Btwipson, xxxiii. 546. Goodwin v. Cloud- 
 man, sxiii. 577. 
 
 4. The motion wiU not be aided by proof, that the party making it was, 
 at the time of the trial, ignorant of the law creating the disqua,lification. 
 Dolloff V. Stimpson, xxxiii. 546. 
 
 5. A verdict will not be set aside, upon proof of the existence of evidence 
 which was previously known to the party making the motion. Mam v. JScm, 
 XXXIX. 263. 
 
 6. Where a conviction was obtained of being a common seller, under Act 
 of 1851, c. 211, more than two years after the acts complained of, the re- 
 spondent is entitled to a new trial. State v. Gray, xxxix. 353. 
 
 7. After verdict against the respondent in a bastardy process, a new trial 
 will not be granted because the jury found that the child was begotten at a 
 later time than that charged in the complaint and declaration. Heals v. Fur- 
 lish, XXXIX. 469. 
 
 8. Where the jury adopted the true measure of damages, when they should 
 have been assessed by the Court, the verdict will not be set aside on that ac- 
 count. Newton v. Newhegin, xxiii. 293. 
 
 9. In order to set aside a verdict because a juror was related to the pre- 
 vailing party, the proof should exclude the reasonable possibility of knowl- 
 edge of this fact on the part of the party making the motion, a,nd of his 
 counsel. Goodwin v. Cloud/nan, xliii. 577. 
 
 n. NEWLY DISCOVERED EVIDENCE. 
 
 10. A new trial wiU not be granted, merely because the party has newly 
 discovered evidence to prove a certain fact, unknown to him at the trial, if, by 
 the use of ordinary diligence, he could have ascertained the fact before trial. 
 Howard v. Grover, xxtiii. 97. 
 
NEW TEIAL. 411 
 
 11, On the ground of newly discovered evidence, a new trial should only 
 be granted, where such testimony is not cumulative, and where there is reason 
 to believe that it would change the verdict. Eandly v. Gall, xxx. 9. 
 Snowman v. Wardwell, xxxii. 275. Ham v. Ham, xxxix. 263. 
 
 12. A new trial will not be granted upon that ground, if, at the trial, the 
 proposed witness was precluded on account of interest in behalf of the party 
 moving for the new trial, although that interest has since been removed. 
 Franklin Banh v. Pratt, xxxi. 501. 
 
 III. MISTAKE OR FAULT OF JURORS. 
 
 (a) MlSBEHAYIOE OK MISTAKE OP JUEORS. 
 
 (b) Vekdiot against law oh evidence. 
 
 (c) Excessive or iNADEauATE damages. 
 
 (a) Misbehavior or mistake of jurors. 
 
 13. A person, drawn as juror, and also summoned as witness for the pre- 
 vailing party, cannot receive fees as a witness during the time he was sitting 
 as a juror to try the cause. But, if neither the juror nor the party prevailing 
 knew it to be incorrect, and if there be no evidence of corrupt intention, the 
 verdict will not be set aside. Handly v. Call, xxx. 9. 
 
 14. It is misconduct for one or more jurors to leave their room without 
 leave of the Court. But if it do not appear that some injury to either party 
 could have resulted from it, it is not sufficient ground for a new trial. Newell 
 V. Ayer, xxxii. 334. Parsons v. Huff, xxxviii. 137. 
 
 15. Where, from the evidence and verdict, it is plain that the jury have 
 mistaken their duty, a new trial will be granted. Eveleth v. Harmon, 
 XXXIII. 275. 
 
 16. Where conflicting testimony upon the question at issue is submitted to 
 the jury, the Court have no authority to set aside the verdict, unless it 
 manifestly was found from prejudice, bias or improper influence, or by a 
 mistake of the law or facts of the case. Gardiner v. Farmingdale, xxxvi. 
 252. 
 
 1 7. If one of the jurors, without being in charge of an ofiicer, be permit- 
 ted by the Court, when not in session, to absent himself temporarily from the 
 panel, before verdict was agreed upon, the verdict will not be set aside, unless 
 some prejudice appears to have been sufifered by the moving party. Parsons 
 V. Huff, XXXVIII. 137. 
 
 18. If such permission be objectionable, a party with knowledge of the 
 proceeding, who waits for the verdict to be rendered lefore making his objec- 
 tions, will be considered to have waived them. Parsons v. Huff, xxxviii. 
 137. 
 
 (b) Verdict against law or evidence. 
 
 19. A motion for a new trial, because the verdict was against the evidence, 
 is grantable in some measure at discretion. And where the Court is satisfied 
 that injustice has not been done, a new trial should not be granted, ordinarily. 
 Handly v. Gall, xxvii. 35. 
 
 20. For this reason, it is sufficient to authorize the granting of a new trial. 
 
412 NEW TRIAL. 
 
 if the Court are satisfied that the facts of the case were not fully understood. 
 Bangor v. Brunstvich, xxYii. 351. Edwards v. Currier, XLiir. 474. 
 
 21. The District Court, after verdict and before judgment, on motion and 
 without any additional evidence, may set aside the verdict in a bastardy pro- 
 cess, because in its opinion it is against evidence, and grant a new trial. 
 Eaton V. Elliott, xxviii. 436. 
 
 22. Where the declaration is on a special contract, the contract must be 
 proved as set forth. And where the evidence, in reference to the contract and 
 its breach, is altogether variant from the declaration, a verdict for the plaintifi, 
 not warranted by the evidence, must be set aside. Kidder v. Flagg, xxvin, 
 477. 
 
 23. If, from the testimony presented, the Court does not find itself author- 
 ized to conclude that the jury acted under the infl.uence of passion, bias or 
 prejudice or mistake, it cannot set aside the verdict as against the weight of 
 evidence. Olidden v. Bunlap, xxviii. 379. Handly v. Gall, xxx. 9. 
 FranlcUn Bank v. Pratt, xxxi. 501. Gardiner v. Farmingdale, xxxvr. 
 252. Weld v. Chadbourne, xxxTii. 221. Coombs v. Topsham, xxxviri. 
 204. Bryant v. Glidden, xxxix. 458. Hunnewell v. Hohart, XL. 28. 
 Sawyer v. Nichols, XL. 212. Milo v. Gardiner, xli. 549. Hill v. Nash, 
 XLi. 585. Beal v. Cunningham, xlii. 362. 
 
 24. Where the only ground of recovery was, that he represented himself to 
 one to be a partner with another, who bought merchandize of the plaintiffs ; 
 a verdict for the defendant will not be set aside when it did not appear, from 
 the evidence at the trial, that such representation was communicated to the 
 plaintiffs before the delivery of the goods. Palmer v. Pinhham, xxxvii. 252. 
 
 25. A motion to set aside a verdict, as against evidence, must be sustained 
 with a report of the whole evidence submitted to the jury. Sogers v. Ken. 
 & Port. R. B. Co. xxxTiii. 227. Nutt v. Merrill, XL. 237. Bradbury v. 
 Saco W. P. Co., XLI. 155. Freeman v. Morey, xli. 588. Laheman v. 
 Pollard, XLill. 463. 
 
 26. Where a disclaimer was incorporated into the general issue, and the 
 demandant recovered the value of more land, without improvements, than he 
 owned, a new trial could not avail the tenant, as the cause must be tried again 
 upon the same pleadings. Put. F. School v. Fisher, xxxviii. 324. 
 
 27. Unless the jury are instructed to ascertain and determine the use or 
 want of " ordinary care," under the condition of things at the time of the 
 accident, as disclosed by the testimony, it is good cause for setting aside the 
 verdict. Garmon v. Bangor, xxxtiii. 443. 
 
 28. When jurors have had an opportunity to examine for themselves in 
 regard to matters testified to by witnesses, their verdict will not be set aside 
 on motion, because it differs from the testimony. Brown v. Moran, xlii. 44. 
 
 (c) Excessive or inadequate damages. 
 
 29. Damages, awarded by a jury, may have been greater than the Court 
 would have awarded upon the evidence. But Courts will not set aside ver- 
 dicts on the ground that damages are either excessive or inadequate, unless 
 it is apparent that the jury acted under some bias, prejudice or improper in- 
 fluence, or have made some mistake of law or fact. Kimball T. Bath, 
 xxxviii. 219. 
 
 30. The jury having, by misapprehension, found a verdict for $317,46, 
 
NEW TRIAL. 413 
 
 when by the evidence the plaintiff was entitled to recover no more than $150: 
 Held, that a new trial must be granted, unless the excess and interest there- 
 on from the date of the writ be remitted by the original plaintiff. Jewell v. 
 Qage, xlii. 247. 
 
 IV. ERRORS OF THE COTJRT. 
 
 (a) Misstatement or the law. 
 
 (b) Admission of improper evidence. 
 
 (a) Misstatement of the law. 
 
 31. The Court may decline to set aside a verdict, when rightfully found, 
 though under erroneous instructions, only when it can perceive that, under 
 correct instructions, a different verdict could not have been rightfully found. 
 Noyes V. Shepherd, xxx. 173. 
 
 32. If the instructions of the Judge are such as to withdraw a question 
 from the jury which belonged exclusively to them to decide, still, if, in the 
 opinion of the Court, there was no evidence from which the jury would have 
 been authorized to decide the question in favor of the party complaining, 
 such erroneous instruction will furnish no suiRcient cause for granting a new 
 trial. Gopeland v. Gopeland, xxviii. 525. 
 
 33. Though the construction of a paper be erroneously submitted to the 
 decision of the jury, yet, if their decision be correct,, such submission is not 
 sufficient ground for a new trial. Milliken v. Tufts, xxxi. 497. 
 
 34. Immaterial instructions furnish no ground for disturbing the verdict. 
 McCrilUs V. Hawes, xxxviii. 566. Hardy v. Colby, xiii. 381. 
 
 (b) Admission of improper testimony. 
 
 35. If it be reasonable to believe that the jury could have been unduly in- 
 fluenced by improperly admitted testimony, or if it be doubtful whether they 
 would otherwise have determined as they have done, a new trial should be 
 granted. Eandly v. Gall, xxyii. 35. 
 
 36. Where the plaintiff was allowed to read to the jury an attested copy 
 of a registered deed, " provided he should file an affidavit, in the course of 
 the trial, of the loss of the original," and the case was submitted to the jury, 
 without any objection that the condition had not been performed: — Held, 
 that it may be considered as waived ; and that, if that omission to file the affi- 
 davit did no injury to the defendant, the verdict would not be disturbed. 
 Handly v. Gall, xxx. 9. 
 
 37. Certain facts having been proved by the plaintiff, by competent evi- 
 dence, a new trial will not be granted because the Court had improperly al- 
 lowed a witness for the defence to testify to the same facts, at an earlier stage 
 of the trial. Fogg v. Babcock, xli. 347. 
 
414 NONSUIT.— NOTICE AND NOTIFICATIONS. 
 
 NONSUIT. 
 
 1. After tlie nonsuit of an action, a second suit upon the cause may be 
 stayed under R. S. of 1841, c. 115, § 89, until the defendant's costs in the 
 former action be paid, notwithstanding the second suit is brought by an 
 assignee, who, when purchasing the demand, had no knowledge that it had 
 previously been put in suit. Warren v. Homested, xxxii. 36. 
 
 2. The Judge may order a nonsuit, after the plaintiff's testimony shall have 
 all been introduced, if he deem it incompetent to maintain the suit ; but it is 
 otherwise, after evidence has been introduced by both parties. Lyon v. 
 Sibley, xxxii. 576. Emerson v. Joy, xxxit. 347. Brandon v. Appleton 
 Mut. Fire Ins. Co., xlii. 259. Ctttting, J., dissenting. 
 
 3. But where a plaintiff has examined one of his witnesses solely to prove 
 the execution of papers used on the trial, an examination of him by the 
 defendant on other and distinct matters, immaterial to the issue, will not take 
 from the Judge the power to order a nonsuit. Frye v. Gragg, xxxv. 29. 
 
 4. In an action upon an order drawn upon a company and purporting to 
 be accepted by the directors thereof, where its execution is denied, without 
 proof of the handwriting of the acceptors, and that they were directors, a 
 nonsuit may be properly ordered. Small v. Sacramento N. & M. Co., xi, 
 274. 
 
 5. When a nonsuit has been ordered, because the declaration set forth no 
 legal cause of action, the Court wiU not set it aside on the ground of con- 
 venience, it being clear that the plaintiff cannot sustain a judgment upon 
 such defective declaration. Smith v. Abbott, xi. 442. 
 
 6. A nonsuit ought not to be ordered, though the presiding Judge may 
 have drawn proper inferences from the testimony, and arrived at a correct 
 result, if the facts were such as might justify a jury in coming to a different 
 conclusion, without danger of their verdict being set aside, as against the 
 weight of evidence. Fichett v. Swift, xir. 65. 
 
 NOTICE AND NOTIFICATIONS. 
 
 1. When persons, appointed to decide upon the property rights of others, 
 are required by law to give previous notice of the time or place of their pro- 
 ceeding, the giving of such notice is not an outside act, but is one embraced 
 in the trust to them committed. Clifton, pefrs, xxxiil. 369. 
 
 2. If the law require that such persons, before acting under their appoint- 
 ment, shall take an oath of faithfulness, they must take the oath before 
 designating, by notification, the time and place of their proceeding. Clifton, 
 pet'rs, xxxiii. 369. 
 
 3. Otherwise, their proceedings cannot be- sustained. Clifton, petrs, 
 XXXIII." 369. 
 
 4. Thus, commissioners appointed under R. S. of 1841, c. 122, to locate 
 public lots, in lands granted by the State, must be sworn before giving to 
 parties the notice to which they are entitled, or their doings, under their war- 
 rant, cannot be accepted. Clifton, pet'rs, xxxiii. 369. 
 
NUISANCE. 415 
 
 5. In an action for damages from a defect in a highway, counsel for the 
 defendants admitted " notice," but argued to the jury that he did not admit 
 "reasonable notice:'' — Held, that " notice" and "reasonable notice" mean 
 the same thing, and is conclusive upon the party. Larrahee v. Searsport, 
 XIII. 202. 
 
 6. Handbills and newspaper notices, signed by the defendant, and published 
 by him just before the sale, and exhibited at the time, in which the terms of 
 sale are fully stated, cannot be received as evidence in aid or explanation of 
 an imperfect memorandum. O'Donnel v. Leeman, xxiii. 158. 
 
 See Attachment, 7. 
 Bailment, 2, 3. 
 Bond, 1. 
 Deed, 43. 
 Evidence, 420. 
 Officek, 42. 
 Pauper, 73, 81, 84. 
 Pleading, 19, 20, 21. 
 Tax, 12. 
 
 NUISANCE. 
 
 1 . There is nothing which can be regarded as a nuisance, when considered 
 by itself alone, and separate from its use. It is the improper use or employ- 
 ment of a thing which causes it to become a nuisance. Preston v. Drew, 
 xxxiii. 558. 
 
 2. Although a public nuisance is to be prosecuted for by the public, yet if 
 it have occasioned to an individual any special damage, not common to others, 
 he may maintain a suit for the injury. Cole v. Sprowl, xxxt. 161. 
 
 3. All hindrances or obstructions to navigation, without direct authority 
 from the Legislature, are public nuisances. Knox v. Ghaloner, XMi. 150. 
 State V. Freeport, xliii. 198. 
 
 4. A dam or bridge erected over navigable waters, under authority from 
 the Legislature, in such a manner as to impede navigation beyond what the 
 Act authorizes, is pro tanto a nuisance ; which principle is applicable to 
 streams capable in their natural state of floating boats and logs. Enox v 
 Ghaloner, xlii. 150. State y- Freeport, xliii. 198. 
 
 5. A public nuisance can never be legitimated by the lapse of time ; and 
 the remedy against it by abatement is in all respects concurrent with that by 
 mdictment. Knox v. Ghaloner, xlii. 150. Brotvn v. Black, xliii 443 
 
 See Easement, 7. 
 Towns, 22. 
 
416 OATH. — OFFER TO BE DEFAULTED. 
 
 OATH. 
 
 The words " duly sworn," or " sworn according to law," when applied to 
 any officer who is required to take and subscribe the oath prescribed in the 
 constitution, are to be construed to mean, that he has taken the oath as 
 required ; and when applied to any other person, that such person has taken 
 oath faithfully and impartially to perform the duties assigned to him in the 
 case specified. Bennett v. Treat, xli. 226. 
 
 See AssEssoBS, 2. 
 
 NoiicE, &c., 2, 4. 
 Town, 35. 
 
 OFFER TO BE DEFAULTED. 
 
 1. An offer to be defaulted admits nothing except that the defendant is 
 willing to pay the sum offered, and no more. Avery v. Straw, xxx. 458. 
 Boynton v. Frye, xxxiii. 216. 
 
 2. Where, in assumpsit, an offer to be defaulted for a specified sum is 
 made, and not accepted, and, on the trial, no larger sum is recovered by the 
 plaintiff, costs are to be allowed to the defendant from the time the offer was 
 filed and set off against the sum offered, and the judgment will be rendered 
 for the balance in favor of the plaintiff, with his costs to the time when the 
 offer was entered. Stone v. Waitt, xxxi. 409. 
 
 3. An offer to be defaulted for a specified amount authorizes the plaintiff to 
 take judgment for that amount, although he may fail to establish any claim. 
 Boynton v. Frye, xxxill. 216. 
 
 4. By Act of 1847, an offer to be defaulted for a sum certain, unaccepted, 
 is no admission of the cause of action or of any indebtment of the defend- 
 ant ; nor shall such offer be used as evidence before the jury in the trial. > 
 Wentioorth v. Lord, xxxix. 71. Gowdy v. Farrow, xxxix. 474. ' 
 
 5. If, when such offer has been made, the plaintiff proceeds to trial, the 
 judgment in the case must depend on the verdict rendered. The offer will 
 affect the costs only. Sheplet, C. J., dissenting. Wentworih v. Lord, 
 XXXIX. 71. 
 
 6. Thus, when, after such offer, the action proceeded to trial, and a verdict 
 was rendered for defendant: — Held, that the plaintiff is not entitled to judg- 
 ment for the offer. Wentworth v. Lord, xxxix. 71. 
 
 7. An offer in writing, made by the defendant's attorney in these words: — 
 " and now on this third day of the term, the defendant, by his attorney, comes 
 and offers to be defaulted for the sum of seventy dollars damages in said 
 action," is a compliance with R. S. of 1841, c. 115, § 22. Gowdy v. Far- 
 row, XXXIX. 474. 
 
 8. In order to give a defendant, who has filed his offer to be defaulted, a 
 right to costs under the R. S. of 1841, c. 115, § 22, the plaintiff must, — 
 
 1st. "Proceed to actual trial:" — and — 
 
 2d. Fail to recover a "greater sum for his debt or damage" than that for 
 which the defendant offered to be defaulted. Per Tenney, C. J., and Apple- 
 
OFFICER. 41 7 
 
 TON, Cutting, Davis, and Hathaway, J. J., and May and Goodenow, 
 J. J., dissenting. Pingree v. Snell, xLii. 53. Mercer v. Bingham, xlii. 
 289. 
 
 9. If there has been no trial, the defendant is neither entitled to costs by 
 reason of his oflFer, nor thereby relieved from the payment of costs to the 
 plaintiff. Pingree v. Snell, XLii. 53. Mercer v. Bingham, xLir. 289. 
 
 OFFICER. 
 
 I. 
 
 AUTHORITY AND DUTY. 
 
 n. 
 
 LIABILITIES. 
 
 ni. 
 
 JUSTIFICATION. 
 
 IV. 
 
 INDEMNITY. 
 
 I. 
 
 AUTHORITY AND DUTY. 
 
 
 (a) Who may serve. 
 
 
 (b) How IT MAT BE SESTED. 
 
 
 (c) Specific instrhotions. 
 
 
 (d) Return. 
 
 
 (e) In other respects. 
 
 (a) Who may serve. 
 
 1. By R. S. of 1841, c. 104, a constable is authorized to serve " writs and 
 precepts," in personal actions wherein the sum demanded does not exceed one 
 hundred dollars. Morrell v. Cooh, xxxi. 120. Morrell v. Cooh, xxxv. 207. 
 
 2. That authority includes the, service of executions issued on judgments in 
 such action. Morrell v. Cook, xxxi. 120. 
 
 3. In the service of such writ, he may attach, arid in the service of the 
 execution, he may levy real estate. Morrell v. Cook, xxxi. 120. Morrell v. 
 Cook, xxxv. 207. 
 
 4. A justice's writ may be served by the constable of a town, upon any 
 person within that town, though such person may be an inhabitant of another 
 town. Blanchard v. Day, xxxi. 494. 
 
 5. For an act affecting another's rights, and done by a person under claim 
 of authority as a public officer, the authority may be established by proof, 
 that such person had acted as such public officer, on other occasions. Mutch- 
 ings V. Van Bokelen, xxxiv. 126. 
 
 6. A warrant, which the statute authorizes " any sheriff, city marshal or 
 deputy" to serve, may be executed by a deputy of the sheriff, as well as by a 
 deputy of the marshal. State v. McNally, xxxiv. 210. 
 
 7. The service of a writ by a constable, though it had not been directed 
 to him, is valid and effectual, unless objected to pending the suit. Mor- 
 rell V. Cook, xxxv. 207. 
 
 See Sheeiff. 
 
 53 
 
418 OFFICER. 
 
 (b) Sow it may be served. 
 
 8. An officer may attach an indivisible article of property, though far be- 
 yond the value he was directed by his precept to attach. Moulton v. Chad- 
 bourne, XXXI. 152. 
 
 9. In serving a ^VTit, -which directs the officer to attach the property of the 
 defendant, and to summon him, there should be a separate summons, even 
 though no actual attachment be made. In such a case, the service ought ' 
 not to be made by a copy or by reading the original. Blanchard v. Bay, 
 XXXI. 494. 
 
 10. If an officer, having a vsrit for service, oifer the summons to the de- 
 fendant, who refuses to receive it, he may rightfully return that he deliver- 
 ed the summons, or he may return the facts specially, and they will be 
 held as delivery. Fuller v. Kenney, xxxii. 334. 
 
 11. No particular ceremony is required in seizing real estate on execution 
 by an officer. He need not enter upon the land during any stage of the 
 proceedings of a levy. Fitch v. Tyler, xxxiv. 463. 
 
 12. Though personal property be of such character, that it cannot be re- 
 moved immediately, an attachment of it cannot be made by a mere indorse- 
 ment upon the writ. But the officer must be present and take the articles 
 into his possession. Darling v. Dodge xxxti. 370. 
 
 13. An attachment of property and an arrest of the body are unauthoriz- 
 ed by the same writ. Trafton v. Gardiner, xxxix. 501. 
 
 14. When a return of an attachment has been made upon the writ, the 
 officer cannot justify a subsequent arrest of the defendant, by showing that 
 he did not own the property attached, or that it was ineffectual. Trafton 
 V. Gardiner, xxxix. 501. 
 
 See Attachment, 23. 
 
 (c) Specific instructions. 
 
 15. A request, by the debtor, that the officer will attach other property, in- 
 stead of that which he has aheady attached, imposes no duty upon the officer. 
 Neither does the offer of a third person to deposit money, for the officer's se- 
 curity, to induce him to discharge the property attached, impose any duty. 
 Moulton V. Chadbourne, xxxr. 152. 
 
 16. It is the officer's duty to attach personal property instead of real, if so 
 directed. Moulton v. Chadbourne, xxxi. 152. 
 
 17. The mere offer, by the debtor, to have an appraisement of attached 
 property, without any further steps taken by him, imposes no dufty upon the 
 officer. Moulton v. Chadbourne, xxxi. 152. 
 
 18. An officer is not bound to attach the goods of a debtor, out of his pos- 
 session, unless specially ordered. Weld v. Chadbourne, xxxvii. 221. 
 
 19. If a creditor specially directs an officer to attach specific property of 
 his debtor, not in his possession, he is required to do so, although he held 
 older precepts against the same debtor with general orders to attach all his 
 property. Weld v. Chadbourne, xxxtii. 221. 
 
 20. Whether, after such property has been attached under special direc- 
 tions, the officer is not excused from attaching the same on the older ^vrits in 
 his hands, from well grounded suspicions and reasonable grounds to believe 
 
OFFICER. 419 
 
 that the title might be in controversy, is a question for the jury. Weld v. 
 Chadbourne, xxxTll. 221. 
 
 (d) Return. 
 
 21. Courts will give effect to the returns made by officers, although informal, 
 when the intention is sufficiently disclosed by the language used to be clearly 
 discernible ; but not otherwise. Hathaway v. Larrahee, xxvii. 449. 
 
 22. Thus, where an officer made a return on a writ as follows, against three 
 defendants: — "Penobscot, December 28, 1836, at 11 o'clock, A. M., I have 
 attached all the right, title and interest the defendant has, in and to any real 
 estate in the county of Penobscot:" — Held, that the language was too vague 
 and uncertain to create a lien by attachment on the estate of either one of 
 those defendants. Hathaway v. Larrahee, xxtii. 449. 
 
 23. An officer cannot contradict, as a witness, his return that, upon a levy 
 of land, he had delivered seizin to the judgment creditor. Coioan v. Wheeler, 
 XXXI. 439. 
 
 24. An officer's return, " that he gave the defendant the summons for his 
 appearance at court," is sufficient evidence that he delivered to the defendant 
 a separate summons, in form by law prescribed. Blanchard v. Day, xxxi. 
 494. ■ 
 
 25. The return of the officer, in a levy, that the appraisers were discreet 
 and disinterested men, is conclusive of that fact. Grover v. Howard, xxxi. 
 546. 
 
 26. An officer's return, of the attachment of personal property, is conclu- 
 sive that the property therein described has been attached. Darling v. 
 Dodge, xxxvi. 370. 
 
 27. So the return of an officer, upon an execution, is sufficient evidence that 
 he held the execution for the purpose of collecting it. Came v. Brigham, 
 xxxix. 35. 
 
 28. The return of an officer, as to the time of serving the writ upon the 
 trustee, cannot be contradicted by the disclosure of such trustee. Bunker v. 
 Gilmore, xi. 88. 
 
 See Evidence, 266 — 274. 
 Execution, 62 — 82, 90. 
 
 (e) In other respects. 
 
 29. For Jjhe keeping of property attached by an officer, no person is bound 
 to render his services without present pay. Kendrich v. Smith, xxxi. 162. 
 
 30. Property, which the officer had no right to attach, cannot be retained 
 by him for the purpose of enforcing a reimbursement of money, which he may 
 have paid to discharge a prior lien upon it. Morton v. Hodgdon, xxxii. 127. 
 
 31. It is not lawful for an officer, in the discharge of an official duty, to 
 make gain out of property entrusted by the law to his custody for the benefit 
 of others. Gannett v. Cunningham, xxxiv. 56. 
 
 32. Hence, where an officer had sold upon mesne process, under R. S. of 
 1841, c. 114, the goods attached thereon, and taken a note to himself therefor, 
 approved by the attaching creditor, he has no right to retain, for his own use, 
 the interest accruing upon such note. Gannett v. Cunningham, xxxit. 56. 
 
420 OFFICER. 
 
 33. An officer's authority to receive the attorney's costs of a -writ may be 
 inferred from their previous course of conduct. Lee v. Oppenheimer, xxxit. 
 181. 
 
 34. The force which an officer may apply, to enable him to serve a legal 
 precept, must be no greater than is necessary for the accomplishment of that 
 purpose. Murdoch v. Bipley, xxxv. 472. 
 
 35. Whether the degree of force used was unnecessary is for the jury. 
 Murdoch V. Bipley, xxxT. 472. 
 
 36. His own judgment, though honestly formed, and though he had no 
 purpose to transcend his authority, is not conclusive as to the degree of force 
 necessary. Murdoch v. JRipley, xxxv. -472. 
 
 37. By the common law, an officer has authority to make an arrest upon 
 reasonable ground of suspicion, without a warrant ; and, if his suspicion 
 vanishes, he may discharge the person arrested without returning him before 
 a magistrate. Burhe v. Bell, xxxvi. 317. 
 
 38. A deputy sheriff, who attaches personal property on mesne process, is 
 bound to keep it thirty days after judgment, and deliver it on demand to any 
 officer having the execution, and authorized to receive it, notwithstanding he 
 ceased to be a, deputy before the judgment. Smith v. Bodfish, xxxix. 136. 
 
 39. An officer, when making an arrest, is bound, on demand, to make , 
 known his authority. State v. Phinney, XLii. 384. 
 
 40. But his omission to do so only deprives him of the protection which 
 the law would otherwise throw around him in the rightful discharge of his 
 official duty. State v. Phinney, xlii. 384. 
 
 41. If a person, having been arrested, escapes, without questioning the au- 
 thority of the officer, he is not, to the same extent, entitled to demand his 
 authority upon a re-arrest as he was before. /State v. Phinney, xiii. 384. 
 
 42. A deputy sheriff, assuming'to act under R. S. of 1841, seized, as a 
 whole, the property of a Eailroad Corporation which extended into an adjoin- 
 ing county, in which he was not commissioned to act. After notice of sale 
 had been given, and within ten days of the legal expiration of it, the Act of 
 January 28, 1852, was passed, authorizing officers to seize and sell, as a 
 whole, property so situated, without changing the requirement in regard to 
 notice: — Held, that the notice of sale, having been given under a statute 
 which did not fiuthorize the seizure, was no notice, and the sale was void ; 
 and also, that a notice, under the Act of 1852, must be given thirty days 
 previous to sale, and also, that the Act of 1852 does not dispense with any 
 proceedings previously necessary to make a valid sale. Benson v. Smith, 
 XLII. 414. 
 
 n. LIABILITIES. 
 
 (a) Op shebipfs, fob acts op their deputies. 
 
 (b) To cbeditobs. 
 
 (c) To DEBT0B8. 
 
 (d) To -OTHERS. 
 
 (e) Liability op deputies. 
 
 (a) Of sheriffs, for acts of their deputies. 
 43. A contract between a deputy sheriff and a third person, for the keep- 
 
OFFICER. 421 
 
 ing of property attached, is a personal one ; and the sheriff is not liable 
 upon it. Eendriclc v. Smith, xxxi. 162. 
 
 44. Though the service of such keeper was taxed by the deputy in the 
 ■writ, and included in the judgment, and though the execution had been col- 
 lected by the sheriff, the keeper can maintain therefor no action against the 
 sheriff, after the latter has paid the taxed costs to the attorney upon his 
 claim of lien for fees and disbursements. Kendrich v. Smith, xxxi. 162. 
 
 45. An omission by the deputy to pay for the services of the keeper is not 
 such an omission as gives a remedy, under the statute, against the sheriff. 
 Kendrich v. Smith, xxxi. 162. 
 
 46. A sheriff is not accountable in trespass for the act of C, his deputy, 
 in serving an execution, although C. committed a fraud in the serving of the 
 writ on which the judgment and execution were obtained, if, when serving 
 such writ, C. was the deputy of another sheriff, and not of the defendant. 
 Wilton Manuf'g Co. v. Butler, xxxiT. 431. 
 
 47. A sheriff is not liable on a contract, made by his deputy in his private 
 and unofficial capacity, though such contract may have arisen out of some 
 official act performed by his deputy. Smith v. Berry, xxxvii. 298. 
 
 (b) To creditors. 
 
 48. "Where the lien, by virtue of an attachment of chattels, is discharged 
 by proceedings in bankruptcy, during the pendency of an action of replevin 
 of the property attached, the creditor, by R. S. of 1841, c. 130, § 14, is en- 
 titled to receive from the officer interest at twelve per cent, per annum, on 
 the value of the property, for so long as the service of his execution was de- 
 layed, for his own use. Howe v. Handley, xxviii. 241. 
 
 49. An officer is liable for taking an insufficient replevin bond, if the only 
 surety never resided in this State. Wilhins v. Dinghy, xxix. 73. 
 
 50. Neither by the common law, nor by R. S. of 1841, c. 104, § § 18 and 
 36, do actions of tort for the misfeasance of sheriffs or constables survive, as 
 against their legal representatives. Gent v. Gray, xxix. 462. Valentine 
 V. Norton, xxx. 194. 
 
 51. Nor do they survive in favor of the representatives of the party injured. 
 Valentine v. Norton, xxx. 194. 
 
 52. Even if there were no judgment, the officer is accountable for property 
 attached. Brown v. Atwell, xxxi. 351. 
 
 53. The approval by a plaintiff, as to the ability of the person taken as 
 receipter, does not exonerate the officer from effort to find the property that it 
 may be sold on the execution, or from bringing a suit upon the receipt. Allen 
 V. Boyle, xxxiii. 420. 
 
 54. A written approval, by a plaintiff or his attorney, of a receipt taken 
 by the officer, and a delivery of it to the plaintiff, discharges the officer from 
 liability to him for the goods. Jewett v. Bockray, xxxiv. 45. 
 
 55. Where one of two sureties upon a replevin bond was sufficient at the 
 time of giving it, and is not shown to have since become irresponsible, an 
 action cannot be maintained against the officer for taking an insufficient bond, 
 although the other was insolvent when he signed the bond, and although they 
 both moved out of the State before judgment was obtained. Lord v. Bick- 
 nell, XXXV. 53. 
 
 56. Where a laborer, having a lien for assisting to drive intermingled logs 
 
422 OFFICER. 
 
 of different ownerships, in order to enforce his lien, rightfully and seasonably 
 attached a part of the logs ; if the officer, seasonably having the execution, 
 refuse to sell the logs thereon, he will be liable for such refusal, unless he 
 show that such sale would take more in value of the logs of some one of the 
 owners than his indebtedness under the lien amounted to. Doyle v. True 
 XXXVI. 542. 
 
 57. An action against an officer for neglecting to serve a writ cannot he 
 supported without proof of loss sustained by such omission. McNally v. 
 Kerswell, xxxvii. 550. 
 
 58. If it does not appear by the writ, against the administrator of an insol- 
 vent estate, that a lien-claim is sued for, no action can be maintained against 
 the officer for neglecting to serve it. McNally v. Kerswell, xxxvii. 550. 
 
 59. Where property is sold under mesne process, under E. S. of 1841, 
 c. 114, § 52, the payment of the proceeds, by the officer, to the attaching 
 creditor's attorney, before judgment, will protect him against any suit by the 
 creditor for a failure to apply the same to the execution issued on such judg- 
 ment. The payment to the attorney is payment to the principal. Ducett v. 
 Cunningham, xxxix. 386. 
 
 60. The law requires no useless ceremony. An officer is not liable, as for 
 an omission of duty, for neglect to deliver an article which had been attached 
 in the suit, but which could not legally be sold on the execution. Taggard v. 
 Buchmore, xxii. 77. 
 
 See Assumpsit, 11. 
 
 (c) To debtors. 
 
 61. Though a debt, for which property has been attached, may have been 
 paid, yet the attaching officer cannot be charged as a wrongdoer for retaining 
 the possession, until satisfactory evidence be given of the fact. Wheder v. 
 Nichols, XXXII. 233. 
 
 62. The officer is not liable to the judgment debtor for selling property at 
 a postponed time, made by proclamation, without the posting of advertise- 
 ments, if the postponement, both as to the time and mode of it, was made at 
 the debtor's request. Wilton Manuf'g Co. v. Butler, xxxiv. 431. 
 
 (d) To others. 
 
 63. An officer is not authorized, by a precept against one person, to take 
 the property of another. But a previous demand upon the officer may be 
 necessary, before an action can be maintained, when the goods of the plaintiff, 
 taken by the officer were so intermingled with those of the debtor as not to 
 be distinguishable therefrom. It is not necessary that the property should be 
 so distinctly marked, that an officer, by his own observation, would be able 
 to perceive that it did not belong to the same individual, in order to make 
 him liable. Wells, J., dissenting. Tufts v. McClintock, xxvni. 424. 
 
 64. The purchaser of personal property under attachment may maintain 
 an action against the attaching officer, for an injury done by him to it after 
 the purchase. Richardson v. Kimball, xxviii. 463. 
 
 65. If a surety, to pay the debt of his principal, send his money therefor, 
 by the debtor, to the officer who holds a precept upon the demand, and the 
 officer misappropriate the money, the surety, after having paid the debt to 
 
OFFICER. 423 
 
 the creditor, may maintain assumpsit against the officer, and without a special 
 demand, although the officer, when he received the money, was not notified 
 to whom it belonged. Stetson v. Howe, xxxi. 353. 
 
 66. Although the unlawful excess of fees, charged by an officer for serving 
 the writ of a prior attaching creditor, has absorbed the debtor's property, to 
 the injury of a subsequent attaching creditor, the latter cannot maintain an 
 action against the officer for" the injury. Turner v. Norris, xxxt. 112. 
 
 67. A town by-law, authorizing an officer .to arrest and detain without 
 warrant for the space of forty-eight hours, is repugnant to the Act of 1848, 
 c. 71, § 2, and is no defence to an action against an officer for such unlawful 
 detention. Burke v. Bell, xxxvi. 317. 
 
 68. To maintain an action for a false return, special damages sustained 
 thereby must be shown. Nash v. Whitney, xxxix. 341. 
 
 See Action, 9. 
 
 (e) Liability of Deputies to Sheriffs. 
 
 69. For the expenses of defending a suit brought against a sheriff upon a 
 personal contract of his deputy, the former has no remedy on the deputy or 
 his sureties. Smith v. Berry, xxxvii. 298. 
 
 70. To suits brought against the sheriff for official acts of his deputy, it is 
 proper that the sheriff should take care that no judgment be obtained wrong- 
 fully. For the expenses of so doing, if judiciously incurred in good faith, he 
 has a remedy on the deputy's bond. Smith v. Berry, xxxvii. 298. 
 
 71. For such expenses, incurred before the suit upon the deputy's bond, 
 the sheriff may recover, though in fact not paid by him until after bringing 
 the suit. Smith v. Berry, xxxvii. 298. 
 
 71. For damages recovered against a sheriff and counsel fees by him in- 
 curred, on account of the misdoings of his deputy, he can only obtain indemni- 
 ty by suit on the latter's bond. Nutt -v. Merrill, xi. 237. 
 
 ni. JUSTIFICATION. 
 
 72. A precept or process, though voidable for irregularity and mistake, is 
 a protection to the officer who serves it, if the magistrate, by whom it was 
 issued, had jurisdiction of the subject matter. State v. McNally, xxxiv. 
 210. Gurney y. Tufts, ■s.-Kxm.lZO. Thurston \. Adams, xi,i. 4\ 9. Gray 
 V. Kimball, xlii. 299. 
 
 73. An officer may be protected in the service of an execution, although 
 there were such irregularities in the writ and in the .service of it, as, if plead- 
 ed, would have abated the suit ; and although, for such irregularities, the 
 judgment was afterwards reversed on writ of error. Wilton Manuf'g Go. 
 V. Butler, xxxit. 431. 
 
 74. If a magistrate's warrant show a want of jurisdiction, it can give no 
 protection to the officer who serves it. Gurney v. Tufts, xxxvii. 130. 
 Thurston v. Adams, xli. 419. Vinton v. Weaver, xli. 430. 
 
 75. An officer is not justified in entering a dwellinghouse for the purpose 
 of seizing liquors, by a warrant under Act of 1853, c. 48, § 11, unless it 
 is alleged in the warrant, either that the shop, for the sale of such liquors, is 
 kept in the house, or a part of it ; or that the preliminary testimony, pre- 
 
424 ORDER. 
 
 scribed in said section, has been taken. McOlinchy v. Barrows, xii. 74. 
 Jones V. Fletcher, xxi. 254. 
 
 76. It must also be alleged that the liquors were intended by the owner for 
 unlawful sale. McGlinchy v. Barrows, xli. 74. 
 
 77. A warrant to search the dwellinghouse of a person only authorizes a 
 search of the house in Avhich such person lives ; and not a house owned by 
 such person, but occupied by another. McGlinchy v. Barrows, xli. 74. 
 
 78. Under a warrant for the search of intoxicating liquors, an officer is 
 justified in forcibly breaking and opening a railroad depot in which the 
 liquors are stored, after the usual time for receiving and delivering goods at 
 the depot, if such forcible entry is necessary to the execution of the warrant; 
 and that, too, without first asking permission of the person in charge of the 
 depot, to enter and search it. Androscoggin Railroad Go. v. Richards, xli. 
 233. 
 
 79. A warrant commanding a searcli of a " dwellinghouse" will not au- 
 thorize the search of a ham. Jones v. Fletcher, xli. 254. 
 
 80. An officer is not liable for his official acts under a sufficient warrant, 
 because the prosecution fails by reason of the repeal of the Act by virtue of 
 which the warrant was issued. Gray v. Kimball, xiil. 299. 
 
 See Waeeani. 
 
 rv. INDEMNITY. 
 
 81. In a suit by a deputy, against a party who directed him to attach cer- 
 tain property, for which acts the sheriff was sued and held responsible, the 
 deputy may recover the damages assessed against the sheriff, and the counsel 
 fees incurred, although they are outstanding against him. Nutt v. Merrill, 
 XL. 237. 
 
 OFFICER DE FACTO. 
 See Deed, 38, 39, 40. 
 
 ORDER. 
 
 1. When a person draws an order in favor of another, it is a presumption 
 of law that the consideration for it was paid or secured at the time the order 
 was drawn. Smith v. Poor, xxxvii. 462. 
 
 2. Hence, proof that the plaintiff drew an order in favor of the defendant, 
 and that it was charged to the drawer and credited to the drawee, will not 
 sustain either of the money counts. Smith v. Poor, xxxvii. 462. 
 
 3. An accepted unnegotiable order on a third person, given by a debtor 
 to his creditor, for a precedent debt, is no defence to an action on such in- 
 debtment, although the debtor has the original bill receipted, as paid by such 
 order. Jose v. Baker, xxxtii. 465. 
 
OVERSEEES OF THE POOR. — PAREXT AND CHILD. 42 5 
 
 4. Payment of such a debt, by such an order, can only be proved by a 
 special agreement to that effect. Jose v. Baker, xxxtii. 465. 
 
 OUSTER. 
 
 See Joint Tenants, &c., 5, 6. 
 
 OVERSEERS OF THE POOR. 
 
 1. Courts of law are alone authorized to determine the amount of damage 
 which a minor, apprenticed by the overseers of the poor, is entitled to recover 
 for ill-treatment suffered from his master. Vinalhaven v. Ames, xxxii. 299. 
 
 2. The overseers, in fixing the amount, would transcend their authority. 
 Vinalhaven v. Ames, xxxii. 299. 
 
 3. A payment made to them, unless its amount had been settled in a suit 
 at law, would not bar a claim against the master, made by the apprentice, 
 when arrived at age. Vinalhaven v. Ames, xxxii. 299. 
 
 4. A note, given by the master and payable to the treasurer of the town, 
 on an adjustment made by the overseers, in discharge of such claim, is with- 
 out consideration. Vinalhaven v. Ames, xxxii. 299. 
 
 5. The overseers of the poor of Portland committed certain persons to the 
 workhouse by a warrant which described them as persons, who, being " able 
 of body to work, and not having estate or means otherwise to maintain them- 
 selves, refuse or neglect so to do, live a vagrant, dissolute life and exercise no 
 ordinary calling or lawful business sufficient to gain an honest livelihood :" — 
 Held, that the causes alleged in their warrant were sufficient to give the over- 
 seers jurisdiction and authorized the commitment; and that to\vns, where 
 persons so committed have their legal settlement, are liable for their support 
 as paupers. Rice, J., dissenting. Portland v. Bangor, xlii. 403. 
 
 6. Overseers, being under oath, are presumed to act with integrity until 
 the contrary is shown. Portland v. Bangor, xlii. 403. 
 
 See Paitpee, 85 — 88. 
 
 PARENT AND CHILD. 
 
 1. A mother, after the death of her husband, has no authority to assign, 
 by parol, the services of her minor child, for the period of its minority, even 
 though, by the contract, the compensation for services be made payable to 
 the child. Pray v. Gorham, xxxi. 240. 
 
 2. Notwithstanding such contract, even made with the assent of the child,, 
 the child may leave the service of his employer, at any time, and recover 
 
 54 
 
426 PARISH.— PAROL REPRESENTATIONS.— PARTITION. 
 
 from him what his past services were reasonably worth. Pray v. Gorham, 
 XXXI. 240. 
 
 3. In such a case, there is no validity in the ground, taken in defence, that 
 it is not the chUd, but the mother, who is entitled to the wages. Pray v. 
 Gorham, xxxi. 240. 
 
 PARISH. 
 
 1. While a town constitutes but one parish, it may administer its munici- 
 pal and parochial aifairs under one organization ; and while acting in this 
 double capacity, it may appropriate any of its property to objects of a paro- 
 chial or municipal character, which, after the dissolution of that union, by 
 the constitution of a new parish, cannot be changed by one alone. Booth- 
 lay v. Wylie, xiiir. 387. 
 
 2. Such appropriation, when distinctly made, is equivalent to a grant of 
 the property to a specific use. And, where no such appropriation is made of 
 the whole estate, the residue belongs to the town, and the parish can have 
 title to no more than has been appropriated to their use. Booihbay v. Wylie, 
 xiiii. 387. 
 
 PAROL REPRESENTATION. 
 
 A verbal representation or assurance concerning the character, credit, 
 ability, trade or dealings of another, will not subject the party making it to 
 , an action for damages suffered thereby ; the common law having been chang- 
 ed by R. S. of 1841, c. 136, § 3. Hearn v. Waterhouse, xxxix. 96. 
 
 PARTITION. 
 
 I. BY WHOM, AND OF WHAT, PARTITION MAY BE HAD. 
 
 11. WHO MAY RESIST, AND ON WHAT GROUNDS. 
 
 III. PROCEEDINGS, 
 
 rv. EFFECT. 
 
 I. BY WHOM, AND OF WHAT, PARTITION MAY BE HAD. 
 
 1. A right to partition is incident to all real estate, held in joint tenancy 
 or tenancy in common. Wood v. Little, xxxv. 107. 
 
 2. In a petition for partition, a sole seizing in the respondent may be es- 
 tablished by a possession commenced twenty years before the trial, though 
 less than twenty years before the commencement of the process. Saco W. 
 P. Co. V. Goldthwaite, xxxt. 456. 
 
PARTITION. 427 
 
 3, A petition for partition of land, described as bounded on the sea, or on 
 a bay of the sea, is a petition for a division of the flats as well as of the 
 upland. Partridge v. Luce, xxxti. 16. 
 
 4. Where a division among the heirs of the realty had been made by parol, 
 and they had subsequently occupied in severalty, an heir, who has sold and 
 conveyed her part of the estate, so assigned by parol, may maintain this pro- 
 cess for her share, after the title has re-vested in her. Ghenery v. Dole, 
 XXXIX. 162. 
 
 n. WHO MAY RESIST, AND ON "WHAT GROUNDS. 
 
 5. A creditor's attachment of the estate of his debtor, held in common 
 with others, cannot prevent the other part owners from procuring a partition 
 of the estate. Nor wUl such partition vacate the attachment. Argyle v. 
 Dwinel, xxix. 29. 
 
 6. A partition cannot be resisted on the ground, that the principal part of 
 the estate, (as for instance a cotton factory,) is not divisible into the parts 
 prayed for, without destroying it for the purposes for which it had been erected 
 and maintained. Wood v. Little, xxxt. 107. 
 
 7. Where a co-tenant of land, after petitioning for partition, and prior to 
 the interlocutory judgment of fiat partitio, has conveyed his interest, advant- 
 age can be taken only by plea in bar. Partridge v. Luce, xxxvi. 16. 
 
 8. But a sale, made after such interlocutory judgment, furnishes no objec- 
 tion to the partitioner's title. Partridge v. Luce, xxxvi. 16. 
 
 9. A division of the realty, by parol, among the heirs, and a subsequent 
 occupation in severalty, interpose no obstacles to this process by either of the 
 heirs. Ghenery v. Dole, xxxix. 162. 
 
 10. And one who has conveyed aU his interest, excepting his right in the 
 dower, is rightfully made a party. Ghenery v. Bole, xxxix. 162. 
 
 m. PROCEEDINGS. 
 
 11. In a petition for partition, where commissioners are appointed before a 
 default, and they make a return, which is resisted by a vyritten motion, those 
 who file the motion are not parties or subject to costs. Moore v. Mann, 
 XXIX. 559. 
 
 12. If there be error in the proceedings of commissioners under this pro- 
 cess, in setting off lands, the remedy is by certiorari, and not by writ of 
 error. Dyer v. Lowell, xxx. 217. 
 
 13. A co-tenant, thus injured, is not precluded from such remedy merely 
 because he was not named in the petition for partition. Dyer v. Lowell, 
 
 14. The commissioners cannot assign to a petitioner, a right of hauling 
 lumber across the land assigned to his co-tenants ; or of driving lumber on the 
 stream through such land; or prescribe in what proportions, among the 
 parties, the expense of maintaining the dam shall be paid ; or that a dam 
 shall be maintained at all. Dyer \. Lowell, xxx. 217. 
 
 15. If the estate be incapable of partition, the whole should be assigned 
 to one of the co-tenants, upon the payment of money, as provided in R. S. 
 of 1841, c. 121, § 25. Dyer v. Lowell, xxx. 217. 
 
428 PARTITION. 
 
 16. The proceedings of commissioners are erroneous, if they show merely 
 an assignment to the petitioner of the number of acres he was entitled to, 
 without showing in substance, that they were of average quality and value 
 with the residue of the tract. Dyer v. Lowell, xxx. 217. 
 
 17. The commissioners' return, that they have given sufficient notice of 
 the time and place, <Stc., to all concerned, &c., is not conclusive upon the 
 Court ; but it should state what they have done, and whether any, and what 
 persons, (if any,) were known to them to be concerned, and resident within 
 the State, and what notice was given to each. Hathaway v. Persons un- 
 known, XXXII. 136. 
 
 18. When, in this process, a person interested is not named, and has had 
 no notice or opportunity to appear and answer, he may be allowed, on motion, 
 at any time before final judgment, to appear and defend, under R. S. of 1841, 
 c. 121, § 9. Field v. Persons unknown, xxxiv. 35. 
 
 19. The granting of such motion is at the discretion of the Court; and, in 
 the exercise of its discretion, it will refuse to grant the motion, unless 
 made prior to the interlocutory judgment of fiat partitio. Field v. Persons 
 unknown, xxxit. 35. 
 
 20. Upon a divison, it is not necessary that the parts be made equal in 
 size or value, inasmuch as the party whose share is less in value may be com- 
 pensated in money, under the award of the commissioners. Wood v. Little, 
 XXXT. 107. 
 
 21. Under K. S. of 1841, c. 108, § 1, the Probate Court may make parti- 
 tion of real estate among heirs and devisees, though many years after the 
 estate has been settled. Earl v. Bowe, xxxv. 414. 
 
 22. Where no dispute has been raised respecting the proportion, if any, to 
 which an heir or devisee is entitled, partition may be made by the Judge of 
 Probate, unless such proportion appear to him to be uncertain. And, if his 
 opinion be erroneous, the remedy is by appeal. Farl v. Bowe, xxxv. 414. 
 
 23. On a petition for partition of land, described as bounded on the sea, or 
 on a bay of the sea, it is the duty of the commissioners to divide the flats as 
 well as the upland. And, unless they do so, their report wUl be re-commit- 
 ted for the purpose of having it done, unless it appear to the Court, that they 
 are incapable of division. Partridge v. Luce, xxxvi. 16. 
 
 24. This process, not being a personal action, does not come within the 
 provisions of E. S. of 1841, c. 120, § § 10 and 15 ; and, not being a process 
 to demand possession of land, is not embraced in c. 145, § 19 ; nor can the 
 heirs or devisees of a sole petitioner for partition, after his decease be com- 
 pelled to come into Court and prosecute the suit ; but, unless they volunta- 
 rily appear after the death of the petitioner, the process must abate. Dvii- 
 nal V. Solmes, xxxvii. 97. 
 
 25. In a petition for partition, if an issue is presented as to a piece of land, 
 and the presiding Judge is unable to determine whether it is included in the 
 petition or not he may authorize such an amendment or variance of the 
 pleadings, as wiU prevent the jury from finding upon an immaterial issue. 
 Ham V. Ham, xxxvii. 261. 
 
 26. Such amendmehts are allowed without costs to either party. Ham v. 
 Ham, XXXVII. 261. 
 
 27. If parties to a suit put in issue a matter, which is incapable of being 
 legally made so, the Court may direct the pleadings respecting it to be struck 
 out or disregarded. Ham v. Ham, xxxyii. 261. 
 
PARTITION. 429 
 
 28. Where one of the commissioners in a warrant for partition, after it 
 issued, declined to act, the appointment of another by the Court, with the 
 certificate of the clerk, on such warrant, will authorize the substitute to act. 
 Parsons v. Copeland, xxxviii. 537. 
 
 29. The interlocutory judgment affects only the common property, as it ex- 
 isted when the petition was filed. Parsons v. Copeland, xxxtiii. 537. 
 
 30. Buildings, rightfully erected upon the common property, by one of the 
 tenants in possession, for his own use, after a co-tenant has filed his petition 
 for a partition, cannot be appraised, in estimating the value of the entire 
 property, and thereby give to the petitioner a share of their value. And 
 such an appraisal will render the proceedings erroneous. Parsons v. Cope- 
 land, XXXVIII. 537. 
 
 31. In such petitions, a review may be granted by law, whenever the 
 Court deem it reasonable and for the advancement of justice. Wilhur v. 
 Dyer, xxxix. 169. 
 
 32. Where, after final judgment, a mistake in the proceedings of the com- 
 missioners was discovered, it was held to he reasonable that a review should 
 be granted. Wilbur v. Dyer, xxxix. 169. 
 
 33. Commissioners have no power to determine any question of title to 
 any of the property embraced in their warrant ; and where they have ex- 
 ceeded their authority, their report should be re-committed. Ham v. Ham, 
 XXXIX. 216. 
 
 34. After the interlocutory judgment has been entered, no questions can be 
 raised by any of the tenants, as to any betterments in the common property, 
 while that judgment remains in force. Ham v. Ham, xxxix. 216. 
 
 35. Neither has the Act of 1855, c. 157, changed the law in that particu- 
 lar. Ham V. Ham, xxxix. 216. 
 
 See Cbbtioeaki, 12, 13. 
 Costs, 22. 
 
 IV. EFFECT. 
 
 36. By R. S. of 1841, c. 121, § § 33, 37, the judgment, 'in this process, is 
 not conclusive upon an elder and better title than that of the person holding 
 by virtue of the partition, unless against one who appeared and answered to 
 the petition. Argyle v. Dwinel, xxix. 29. 
 
 37. Where a person is the owner of an undivided portion of lands holden 
 in common, which portion is severed and set out under proceedings for parti- 
 tion, his title adheres to and follows the estate, and becomes limited by it. 
 Argyle v. Bwinel, xxix. 29. 
 
 38. A judgment upon a verdict rendered in favor of petitioners for parti- 
 tion against persons unknown, is conclusive, so far as concerns the rights of 
 those who did not appear and become parties to the proceedings, although 
 the finding of the jury did not conform to the issue, and, by inadvertence, 
 was not written out in form, before it was affirmed. Foxcroft v. Barnes, 
 XXIX. 128. 
 
 39. A judgment establishing the partition of lands, bars the legal possessory 
 title of all who did become, or might have become, respondents. Foxcroft v. 
 Barnes, xxix. 128. 
 
430 PARTNERSHIP. 
 
 40. A judgment under this process, cannot in any way prejudice the rights 
 of strangers in other lands. Hohls y. Parker, xxxi. 143. 
 
 41. A. owned land, and was also tenant in common with others, in adjoin- 
 ing land. The co-tenants instituted a process for partition, descrihing the 
 common land by its true boundary. By mistake in the plan taken by order 
 of the Court, the divisional line between the two lots was laid down errone- 
 ously, and, by means of that error, a part of A.'s own lot was assigned to one 
 of the petitioners. In a real action, by such petitioner to recover said part, 
 it is no answer to the title set up by A., that, by the erroneous line, a larger 
 portion of the common land would fall to A. Holbs v. Parker, xxxi. 143. 
 
 42. The whole object legally sought by this process, is a division of the 
 land, between those who have title as tenants in common. Tilton v. Palmer, 
 XXXI. 486. 
 
 43. To such processes, persons in possession by disseizin, (unless their 
 occupation has ripened into a title) are not parties, and their equitable rights 
 are not aifected by the proceedings. Tilton v. Palmer, xxxi. 486. 
 
 44. An entry on the docket by such a disseizor, in such a process for 
 partition, could not impair his equitable rights. Tilton v. Palmer, xxxi. 
 486. 
 
 45. In a writ of entry by the party to whom a portion of land had been 
 setoff in severalty: — Held, that if the tenant should prove that for more 
 than six years prior to the filing of such petition for partition, he and those 
 under whom he claimed had been occupying and improving the same portion 
 of land, his right to betterments therein, would not be abridged by the 
 partition. Tilton v. Palmer, xxxi. 486. 
 
 46. R. S. of 1841, c. 121, § 33, exempts from the operation of a judgment 
 for partition, any person who did not appear and answer to the petition upon 
 which the partition was ordered. Larrabee v. iarratee,, xxxiii. 100. 
 
 47. The name of an attorney, placed " for special purpose" under the name 
 of a respondent in the docket entry of such a petition, does not constitute 
 either an answer or an appearance, within the meaning of the statute. Lar- 
 rabee v. Larrabee, xxxiii. 100. 
 
 PARTNEESHIP. 
 
 I. WHAT CONSTITUTES A PARTNERSHIP. 
 
 II. WHAT WILL DISSOLATE A PARTNERSHIP, 
 
 ni. POWERS AND LIABILITIES OP PARTNERS. 
 
 IV. PLEADINGS. 
 
 V. EVIDENCE. 
 
 I. WHAT WILL CONSTITUTE A PARTNERSHIP. 
 
 1. Whether a partnership existed, is an inference of law from the facts 
 shown to have existed. Dioinel v. Stone, xxx. 384. 
 
 2. A mere participation in profit and loss, in the transactions of business, 
 does not necessarily constitute a partnership. Dwinel v. Stone, xxx. 384. 
 Banchor v. Cilley, xxxyiii. 553. 
 
PARTNERSHIP. 431 
 
 3. It is essential, that there be a community of interest in the subject mat- 
 ter. Tenet totum in communi et nihil separatim per se. Dwinel v. Stone, 
 XXX. 384. Knowlton v. Reed, xxxviii. 246. Banchor v. Gilley, xxxviii. 
 553. Woodward v. Cowing, xli. 9. 
 
 4. Also, that upon its dissolution by the death of one of the partners, the 
 survivors become entitled to retain and dispose of the company effects for a 
 settlement of its affairs. Dwinel v. Stone, xxx. 384; Knowlton v. Heed, 
 XXXVIII. 246. 
 
 5. Every community of interest does not constitute a partnership. Knowl- 
 ton V. Beed, xxxviii. 246. Woodward v. Cowing, xli. 9. 
 
 6. Part owners or builders of ships are not from that fact, to be regarded 
 as partners. Mercantile Banlc v. Cox, xxxviii. 500. 
 
 7. Neither are co-mortgagees of ships to be any more treated or held as 
 partners from holding security upon a part than if they owned the whole. 
 Mercantile Bank v. Gox, xxxviii. 500. 
 
 8. Two persons keeping a public house together, making bills and pur- 
 chases in the management of their house in the name of both, are not neces- 
 sarily partners. Banchor v. Gilley, xxxviii. 553. 
 
 9. An association, each member of which agrees in ^vriting to pay the sum 
 subscribed by him for the purpose of building a meeting house, which, when 
 completed, is to be the property of the subscribers in the proportions of the 
 amounts invested respectively, is not a partnership. Woodward v. Cowing, 
 xli. 9. 
 
 10. If parties have a distinct or independent, though undivided interest in 
 the property, and neither can dispose of the whole property or act for the 
 others in relation thereto, but only for his own share, they are not co-partners, 
 and this Court has no equity power in such case. Woodward v. Cowing, 
 XLI. 9. 
 
 11. If one person advances funds and another furnishes his personal ser- 
 vices, or skill in carrying on a trade or operation, and is to share in the profits, 
 it amounts to a partnership. Bearce v. Washburn, xliii. 564. 
 
 n. WHAT WILL DISSOLVE A PARTNERSHIP. 
 
 12. The death of one partner will operate at common law, as a dissolution 
 of the partnership, however numerous the association may be, not only as to 
 the deceased partner, but as between all the survivors. Knowlton v. Beed, 
 XXXVIII. 246. 
 
 13. A valid assignment of all the partnership estate, for the benefit of 
 creditors of the firm, is ipso facto, a dissolution. Simmons v. Curtis xli 
 373. 
 
 rn. POWERS AND LIABILITIES OF PARTNERS. 
 
 (a) As IT RESPECTS THE PARTNERSHIP PROPERTY. 
 
 (b) As IT RESPECTS EACH OTHER. 
 
 (O) How FAB ONE CAN BIND THE FIRM. 
 
 (a) As it respects the partnership property. 
 14. Where one of two partners has assigned his interest in the partnership 
 
432 PARTNERSHIP. 
 
 effects to his co-partner to secure the latter for debts due him from the former, 
 but remains liable for the debts of the firm, and entitled to his share of any 
 surplus, in an action in the name of the firm, brought for the benefit of the 
 assignee alone: — Held, that, as against the assignee, the defendant cannot 
 retain money paid to him, out of the partnership funds, upon a debt due to 
 him from the other partner, if, at the time of receiving it, he knew the money 
 belonged to the companj', unless the assignee, at or before the payment, had 
 assented thereto. Foster v. Fifisld, xxix. 136. 
 
 15. After the dissolution of a co-partnership, it is regarded as continuing 
 for the settlement of its affairs ; and each partner, for that purpose, retains 
 his former powers, unless a different agreement be made. Gannett v. Cun- 
 ningham, xxxiv. 56. MilUken v. Loring, xxxvil. 408. 
 
 16. For an invasion of such property, an action may be maintained in the 
 name of all the members of the firm. Gannett v. Cunningham, xxxiv. 56. 
 
 17. A note made payable to a partnership firm, for property belonging to 
 the firm, is the property of the firm, though given after the death of one of 
 the partners, upon a purchase from the survivor. Thompson v. Lewis, 
 XXXIV. 167. 
 
 18. The share or aliquot part which a judgment debtor may have in the 
 goods of a firm, of which he is the surviving partner, may be sold on execu- 
 tion against him ; unless some interposing claim be made, in behalf of the 
 firm, either by a creditor, or by the administrator of the deceased partner. 
 Thompson, v. Lewis, xxxiv. 167. 
 
 19. Unless such interposition be made, the sale need not be confined to 
 the mere surplus interest, which the surviving partner might have in the 
 goods after payment of all the partnership debts. Thompson v. Lewis, 
 XXXIV. 167. 
 
 20. Of the methods by which such interposition, in behalf of the firm, 
 may' be effectually made, to prevent the surviving partner's share of the 
 estate from being held for his private debt, either upon trustee process or 
 upon execution. Thompson v. Lewis, xxxiv. 167. 
 
 (b) As it respects each other. 
 
 21. In a submission, by parties who had been co-partners, of all demands 
 of every description, whether arising out of their business, as partners, or out 
 of any other transactions, it does not belong to the referees to adjudicate upon 
 the property belonging to the firm, or the debts due from the firm. Hayes v. 
 Forskoll, XXXI. 112. 
 
 22. The interest, which the members of the company have in such matters, 
 is not a demand by one against the other. Hayes v. Forsholl, xxxi. 112. 
 
 23. Although one of a firm, to whom a note, signed by the firm, is made 
 payable, cannot maintain an action upon it against the makers, an indorsee 
 may. Davis v. Briggs, xxxix. 304. 
 
 24. Under the equity jurisdiction of the Supreme Judicial Court may be 
 brought all cases of partnership. Knowlton v. Reed, xxxviii. 246. Wood- 
 ward V. Cowing, XLi. 9. 
 
 25. In an action by a partner, as indorsee of notes given to another partner, 
 upon a sale, by such other partner to the maker, of partnership property, the 
 plaintiff stands in no better position to resist a claim of set-off, than the 
 payee of the note himself would, if the action had been in his name. Otis 
 V. Adams, xli. 258. 
 
PARTNERSHIP. 433 
 
 (c) Hoxo far one can hind the firm. 
 
 26. Where the general partner, (in a special partnership, subsisting and 
 conducted in his name,) makes a general assignment of his property, for the 
 benefit of creditors, without using any words to show that the partnership 
 property was intended to be assigned, the partnership property is not thereby 
 transferred. Merrill v. Wilson, xxix. 58. 
 
 27. In such case, one taking the property by purchase from the assignee, 
 cannot hold it as against the creditors of the co-partners. Merrill v. Wilson, 
 XXIX. 58. 
 
 28. The indorsement of a vnit by a co-partnership company, in the name 
 of their firm, is sufficient to hold the persons composing the co-partnership. 
 Fisher v. Foss, xxx. 459. 
 
 29. One partner has no authority to use the name of the firm, out of the 
 scope of the co-partnership business, xmless the consent or subsequent ratifi- 
 cation of the other is obtained. Bollins v. Stevens, xxxi. 454. 
 
 30. Hence, one partner cannot bind the company as sureties, upon the 
 paper of other persons. Bollins v. Stevens, xxxi. 454. 
 
 31. A valid title to a negotiable promissory note, payable to a co-partner- 
 ship firm, may be transferred by an indorsement made in. the name of the 
 firm, by one of the co-partners, though after a dissolution of the co-partner- 
 ship, if such dissolution was unknown to the indorsee. Cony v. Wheeloch, 
 xxxiii. 366. 
 
 32. A conveyance to one member of a co-partnership, made after the 
 dissolution, in payment of a debt due to the firm, will enure to the benefit of 
 the firm. Gannett v. Cunningham, xxxiv. 56. 
 
 33. Of two joint debtors, though not co-partners, if one give a note for 
 the debt, signed in their joint names as co-partners, a ratification by the other 
 gives validity to the note against both. Waite v. Foster, xxxiii. 424. 
 
 34. A subsequent promise by such other debtor to pay the note, made with 
 a full knowledge of all the facts, is a ratification. Waite t. Foster, xxxiii. 
 424. 
 
 35. If one of the payees of a note, being partners, negotiated it, after the 
 dissolution of the firm, without authority from his co-partners, their subse- 
 quent ratification will make the transfer valid, although indorsed for a pur- 
 pose foreign to the business of the firm. Leonard v. Wildes, xxxvi.'265. 
 
 36. One of the partners may lawfully assign to a creditor of the firm, a 
 demand due to the partnership, even after dissolution. Millihen v. Loring, 
 XXXVII. 408. 
 
 37. After dissolution, each member has the same power as before, to collect 
 debts, liquidate and settle accounts, and to apply the funds and eflfects to the 
 payment of debts ; and for that purpose the powers and duties of the partner- 
 ship continue until the concerns of the association are closed up. Millilcen 
 V. Loring, xxxvii. 408. Knowlton v. Beed, xxxviii. 246. 
 
 M,38. The act of each partner in transactions relating to the partnership, is 
 the act of all. Knowlton v. 'Beed, xxxviii. 246. 
 
 ' 39. In ordinary cases, and in the absence of fraud on the part of the pur- 
 chaser, each partner has the complete jus disponendi of the whole partner- 
 ship interests, and is considered to be the authorized agent of the firm. 
 Knowlton y. Beed, xxxvm. 246. Woodward v. Cowing, xi.i. 9. 
 
 40. Where property was wrongfully taken by partners and sold, a subse- 
 
 55 
 
434 PABTNEESHIP. 
 
 quent settlement with the owner for one-half, by one, will interpose no defence 
 for the remaining value, in an action against the other. McGrillis v. Hawea, 
 xxxTiii. 566. 
 
 41. When a partnership has been dissolved and one of the partners has 
 assigned all his interest in the book debts and demands of the firm to the 
 other, with power to collect them for his own benefit, he cannot afterwards 
 exercise any control over such debts, although one of them is against himself. 
 Davis v. Briggs, xxxix. 304. 
 
 42. One partner, after the dissolution, has no power to make new contracts, 
 or create new liabilities to bind the firm, without special authority to do so. 
 Such authority may be inferred from all the circumstances of the case. Sim- 
 mons V. Curtis, XLi. 373. 
 
 IV. PLEADINGS. 
 
 43. The same person cannot be a plaintiff and defendant, at the same time, 
 in a suit at law, where a contract is to be enforced. Denny v. Metcalf, 
 xxTiii. 389. 
 
 44. If an action be brought against two persons as partners, and one of the 
 defendants and two others as partners in another concern, are summoned as 
 trustees, they cannot he holden and must be discharged. Denny v. Metcalf, 
 XXTIII. 389. 
 
 45. For an invasion of partnership property, after a dissolution, an aotioa 
 may be maintained in the name of all the members of the firm. Gannett v. 
 Cunningham, xxxiT. 56. 
 
 46. In an action of tort, wherein the defendants are described, and the 
 wrongful act is alleged to have been done by them, as partners, and they 
 severally plead the general issue, the allegation regarding the partnership is 
 immaterial and need not be proved. Sead v. Goodwin, XXXTII. 181. 
 
 47. The joint liability of partners is severed by their death, and a claim 
 against their estate cannot be prosecuted against their administrator, in one 
 action, although the same individual should administer on both estates. 
 McNally v. Kerswell, xxxvii. 550. 
 
 V. ETIDENCE. 
 
 48. Where one of two partners has assigned his interest in the partnership 
 effects to his co-partner to secure him for debts due him bom the former, hut 
 remains liable for the debts of the firm, and entitled to his share of any sur- 
 plus, his declarations are evidence against the firm, in an action in the name 
 of the partnership, brought for the benefit of the assignee alone. Foster v. 
 Fifield, XXIX. 136. 
 
 49. In such suit, the partnership book, containing charges against one of 
 the partners, for moneys paid by him upon his private debts, is admissible 
 for the defendant, to prove that the other partner must have known of such 
 payments, although some other payments may have been made, which were 
 not entered on the book. Foster v. Fifield, xxix. 136. 
 
 50. A conveyance of land, belonging to a partnership, in which all the 
 partners join, carries with it a presumption, in the absence of any proof, that 
 
PART OWNERS. 435 
 
 the consideration money went to the 'benefit of the firm. Lincoln v. White, 
 XXX. 291. 
 
 51. A partnership was dissolved, upon an agreement, that one of the 
 members should assume and pay the company debts. A creditor, upon being 
 afterwards informed of the arrangement, replied that he was satisfied with 
 it: — Held, that reply was not evidence, from which the jury could find 
 that he had discharged the other member. Chase v. Vaughan, xxx. 412. 
 
 52. The declarations of one co-partner, made after the dissolution, con- 
 cerning facts that had occurred prior to the dissolution, may be received in 
 evidence to charge the partnership. Hinldey v. GiUigan, xxxiv. 101. 
 
 53. A suit by a surviving partner, for money paid upon a liability for the 
 defendant, is not supported by proof, that the survivor paid the money, after 
 the death of his partner, without also proving, that he paid it in behalf of 
 the partnership. Stevens v. BoUins, xxxiv. 226. 
 
 54. It is a general rule, that the admissions of one co-partner, concerning 
 the legitimate business of the co-partnership, are deemed the admission of 
 each and all of its members. Gilmore v. Patterson, xxxvi. 544. Fiohett v. 
 Sioift, XLi. 65. 
 
 55. Such are not the less evidence, because found in answer to a bill in 
 equity then before the Court. Gilmore v. Patterson, xxxvi. 544. 
 
 56. Evidence, that the defendants were doing business together as railroad 
 contractors, under the firm and style of a partnership name ; that they sign- 
 
 ' ed contracts, and notes and receipts by that name ; that those notes were 
 paid by them, unexplained, and unaccompanied by counter proof, is sufficient 
 proof of a partnership. Holmes v. Porter, xxxix. 157. 
 
 57. Where the relation of partners is proved, although limited to a particu- 
 lar business, a note made in the name, of the firm by one of the partners, 
 ii •prima facie, for the debt of the firm. Holmes v. Porter, xxxix. 157. 
 
 58. A. and B., as counselors at law, commenced, at the request of D., and 
 prosecuted to judgment, an action in which C. and D., alleged co-partners, 
 were plaintiffs. They afterwards sued the latter for their fees, D. was de- 
 faulted; and C. denied that he was ever the partner of D., or authorized or 
 was interested in the original suit: — Held, that the acts and doings of the 
 plaintiffs in Court, without other proof of notice to defendant C. than arose 
 merely from the long continuance of the suit in Court in the name of C. and 
 D., were not sufficient evidence of partnership, or of promise on the part of 
 C. to entitle the plaintiffs to recover. Prentiss v. Kelley, xli. 436. 
 
 PART OWNERS. 
 
 Part owners are either joint owners or tenants in common, having a distinct, 
 or at least an independent, although an undivided interest in the property, 
 and can neitheV transfer or dispose of the whole property, or act for the others 
 in relation thereto. They difi'er from partners in several respects. Knowlton 
 V. Beed, xxxviii. 246. 
 
 See Joint Tenants. 
 Paktnekship. 
 
436 PATENT. — PAUPER. 
 
 PATENT. 
 
 1. The power of determining the validity of a patent is exclusively con- 
 fided to the Circuit Courts of the United States. Elmer v. Pennell, XL. 430. 
 
 2. In a suit upon a note given for the conveyance of a patent right, proof 
 that such patent was void for being an infringement of a prior one, is not 
 admissible, unless that fact has been determined by a Court of competent 
 jurisdiction. Elmer v. Pennell, xl. 430. 
 
 3. Nor, in defence of such suit, can a mere hypothetical proposition, con- 
 taining no issuable fact, be allowed to be proved. Elmer v. Pennell, xl. 430. 
 
 PAUPER. 
 
 I. SETTLEMENT. 
 II. LIABILITIES OF TOWNS. 
 III. ACTIONS. 
 
 I. SETTLEMENT. 
 
 (a) By derivation. 
 
 (b) Inooeporation, or division, or annexation op towns. 
 (o) Kesidbnce hve years. 
 
 (d) DoMICIL. 
 
 (e) When prevented by receiving reliep as a pauper. 
 
 (f ) Generally. 
 
 (a) By derivation. 
 
 1. Legitimate children shall follow and have the settlement of their father, 
 if he have one within the State, until they gain one of their own. Brewer 
 V. East Machias, xxvii. 489. Augusta v. Kingfield, xxxti. 235. Old- 
 town V. Falmouth, xl. 106. Mile v. Gardiner, xli. 549. 
 
 2. They cannot gain one of their own, while minors, unless they have been 
 emancipated. Brewer v. East Machias, xxvii. 489. 
 
 3. If a father, having a legal settlement in a town, remove therefrom, leav- 
 ing there a legitimate minor son, who remains there until of full age, such 
 son will not thereby become emancipated, or acquire a settlement in that town 
 during the time, in his own right. Brewer v. East Machias, xxvii. 489. 
 
 4. If the father have no settlement within the State, legitimate children 
 follow that of their mother. Dennysville v. Trescott, xxx. 470. Augusta 
 V. Kingfield, xxxvi. 235. Eddington v. Breiuer, xli. 462. 
 
 5. A minor chUd, who has been emancipated, gains no settlement from its 
 mother, acquired after such emancipation. Dennysville v. ■Trescott, xxx. 
 470. 
 
 6. The Act of Feb'y 11, 1794, continued in force until 1821 ; and, under 
 the former, no illegitimate child could have a derivative settlement, unless the 
 mother herself, at the time of its birth, had a settlement. Houlton v. Luhec, 
 XXXT. 411. 
 
PAUPER. 437 
 
 7. No settlement, acquired by the mother, after that time, could be impart- 
 ed to such child. Eoulton v. Lubec, xxxy. 411. 
 
 8. If the father of a pauper never had any settlement in the State, and has 
 voluntarily and absolutely abandoned and deserted his wife and left the State ; 
 while he is living, she can gain no settlement independent of her husband, in 
 her own right. Augusta v. Kingfield, xxxvi. 235. 
 
 9. And, if she many another illegally, while her first husband is living, she 
 can acquire no rights by residence under that association. Augusta v. King- 
 field, XXXVI. 235. 
 
 10. Neither is her settlement, at the time of her marriage, lost or suspend- 
 ed by marrying one having no settlement in the State. Augusta v. Kingfield, 
 XXXVI. 235. Eddinglon v. Brewer, xli. 462. 
 
 11. Where the mother of the pauper, at the time of her marriage, lived 
 with her father, who had a settlement where they lived, the Court will not in- 
 fer that the mother had a derivative settlement from her father. . Augusta v. 
 Kingfield, xxxvi. 235. 
 
 12. A married woman follows and has the settlement of her husband, if he 
 has one within the State. Eddington v. Brewer, xli. 462. 
 
 (b) Incorporation, or division, or annexation of towns. 
 
 13. By the statute of 1826, dividing the town of Machias into several 
 towns, a person born within its territorial limits-, though prior to its incorpor- 
 ation, and removed therefrom at the time of said division, is held to have a 
 settlement in that one of the towns, within the territorial limits of which he 
 was horn. And this rule applies to persons whose settlement was merely 
 derivative. Calais v. Marshfield, xxx. 511. 
 
 14. By the special Act of 1842, c. 9, § 3, by which the town of Auburn 
 was incorporated wholly from a portion of Minot, a person, whose settlement 
 in Minot had been gained by a residence in that part of it, made into the 
 new town, has his settlement in Auburn, if he have not gained a new one 
 elsewhere. Winthrop v. Auburn, xxxi. 465. 
 
 15. The Act of 1842, annexing a part of Berlin to Phillips, and annulling 
 the incorporation of the residue of Berlin, so far as affects the settlement of 
 persons who had resided in Berlin, is to be considered as a division of it, and 
 not as an annexation of a part of it. Livermore v. Phillips, xxxv. 184. 
 
 16. It seems, that " annexation," in its legal sense, is where the town, 
 from which the part annexed was taken, was left as an existing corporation. 
 A "division" is otherwise. Livermore v. Phillips, xxxv. 184. 
 
 1 7. The settlement of persons residing on territory set off from one town, 
 and not " incorporated into another," is not changed by such dismemberment. 
 Weld V. Carthage, xxxvii. 39. 
 
 18. .Where an Act, for the division of a town and incorporation of a new 
 one, authorized the County Commissioners to appoint a committee to deter- 
 mine the value.of certain property named, &c., &c., and also, " to determine 
 all privileges and burdens, that justice may be done between said towns :" — 
 Held, that the committee had no power to decide respecting the support or 
 settlement of paupers. Holden v. Brewer, xxxviii. 472. 
 
 19.^ When a town is divided by a Legislative Act, a pauper residing there- 
 in, without any settlement in this State, must be supported by that town in 
 
438 PAUPER. 
 
 which his residence may be established at the time of the division, ffolden 
 V. Brewer, xxxviii. 472. 
 
 20. The annexation of a small portion of the territory, (containing fifteen 
 polls,) of one town to another adjoining, is not such a division (is is con- 
 templated by the E.. S. of 1841, c. 32, part 4, § 1. And such annexation 
 transfers the settlement of no persons, unless they have a settlement in the 
 town from which the territory is taken, and actually dwell on the territory 
 at the time of its separation. Appleton, J., dissenting. Starhs v. New 
 Sharon, xxxix. 368. Brewer v. Eddington, xlii. 541. 
 
 21. A., before her marriage, had a settlement in the westerly part of a 
 town. Immediately after her marriage, (which was with an alien, having no 
 settlement in the State,) they removed to, and resided in the easterly part of 
 the town ; while residing there, that portion of the town was incorporated 
 into a new town : — Held, that her settlement was in the new town. Edding- 
 ton V. Brewer, xii. 462. 
 
 22. The incorporation of a new town from parts of other towns, " with 
 all the persons having a legal settlement therein," includes all who had ac- 
 quired their settlement in the territory of which the new town is composed, 
 although removed therefrom at the time of the incorporation. Bipley v. 
 Levant, xlii. 308. 
 
 23. To set off a part of one town and annex it to another, has the same 
 effect in regard to the legal settlement of persons residing on the territory 
 annexed, as to incorporate a new to^vn. Ripley v. Levant, xiii. 308. 
 
 24. By R. S. of 1841, c. 32, a manifest distinction exists between the 
 division of a town and the incorporation of a new town from parts of other 
 towns, in regard to the rights of settlement of the inhabitants, under certain 
 circumstances. The division fixes the settlement of persons, absent at the 
 time, in that part in which was their last dwelling-place. The incorporation 
 places in the new town, the settlement of ,those who actually dwelt and had 
 their homes within its limits at the time of incorporation. Appleion, 
 J., dissenting. Ripley v. Levant, xlii. 308. 
 
 25. A. had his settlement in the town of B., and removed therefrom after 
 having resided for a few weeks in a portion of the town which was subse- 
 quently annexed to other territory and incorporated into a new town: — Held, 
 that A., having acquired his settlement in that part which remained the town 
 of B., and having had no dwelling-place and home within the bounds of the 
 new town when incorporated, his legal settlement was in B. Ripley v. Le- 
 vant, xlii. 308. 
 
 26. D. being without family and having no legal settlement in this State, 
 commenced work for A., as a laborer, on his farm, in the town of B., where 
 he continued for the space of six years, after which he was supported during 
 the ten succeeding years by the town at its poor-house. A portion of B., 
 including the site of its poor-house, but not including the residence of A., 
 was then incorporated into a new town. Subsequently, another portion of B,, 
 including the residence of A., was annexed to E. : — Held, that the pauper, 
 by living in the poor-house, did not have such a home in the new town 
 as to fix his settlement therein ; and that he did not actually dwell and 
 have his home in that part of B. which was annexed to E. in any such sense 
 as to transfer his settlement to that town. It therefore remained in B. 
 Brewer v. Eddington, xlii. 541. 
 
 27. Under the latter clause of the fourth mode of gaining a settlement in a 
 town, the question of settlement in the new town, depends upon the fact of 
 
. PAUPER. 439 
 
 an adual home. A poor-house cannot be regarded as having the character- 
 istics of a statute home. Brewer v. JEddington, xlii. 541. 
 
 28. It is competent for the Legislature, in annexing a part of one town to 
 another, to provide that persons, having a legal settlement therein, but absent 
 or residing elsewhere at the time, shall there-afterwards have their settlement in 
 the town to which such part is annexed. Wilton v. New Vineyard, xliii. 315. 
 
 29. By special Act of 1856, c. 503, persons, then having a legal settle- 
 ment in that part of Strong set off to New Vineyard, absent or residing else- 
 where at the time, acquired their settlement in the latter town. Wilton v. 
 New Vineyard, xltii. 315. ^ 
 
 (c) Besidence five years. 
 
 30. Supplies furnished a minor child, without the knowledge or consent of 
 the father, while the father is of ability to support the child, will not prevent 
 the father from gaining a settlement by five years residence. Bangor v. 
 Beadfield, xxxii. 60. 
 
 31. Insanity, occurring after a residence has been established, will not 
 prevent the acquisition of a settlement, if the residence be continued five 
 years without the receiving of pauper supplies. Machias v. East Machias, 
 XXXIII. 427. 
 
 32. A residence of five years together, of a person twenty-one years of age, 
 is required to gain a settlement. Brewer v. Linnaeus, xxxvi. 428. 
 
 (d) Domicil. 
 
 33. A domicil, being once fixed, continues until proved to have been actu- 
 ally changed. Brewer v. Linnaeus, xxxvi. 428. 
 
 34. The residence of the wife, (her husband being of full age,) is prima 
 facie evidence of his domicU. Brewer v. Linnaeus^ xxxvi. 428. 
 
 35. Absences, for longer or shorter periods, for temporary purposes, do not 
 change the domicil. Brewer v. Linnaeus, xxxvi. 428. 
 
 36. An enlistment and service for five years in the army, do not necessarily 
 show a change of domicil. Brewer v. Linnaeus, xxxvi. 428. 
 
 37. To establish a residence within the meaning of the statute, there must 
 be personal presence without any present intention to depart ; and to break 
 up such residence when once established, there must be departure with inten- 
 tion to abandon. Warren v. Thomaston, xiiii. 406. 
 
 38. The fact of abandonment depends upon the intention of the pauper 
 when he departs ; and whether his anticipations of business fail, so that he 
 returns sooner or later, is wholly immaterial. Warren v. Thomaston, xliii. 
 406. 
 
 39. The word " domicil" is not used in the statute, but, when used, is 
 synonymous with residence and home ; and a difi'erent meaning is unauthor- 
 ized. Warren v. Thomaston, xliii. 406. 
 
 40. To acquire and maintain a residence or home, it is not necessary that 
 a person be at all times personally present in such place, or have a particular 
 house to which he may resort as matter of right. Warren v. Thomaston, 
 sxiii. 406. 
 
 See Pattpee, 9. 
 
440 PAUPEE. 
 
 (e) When prevented hy receiving relief as a pauper. 
 
 41. Supplies, furnished to a minor child, without the knowledge or consent 
 of the father, while he is of ability to support the child, will not prevent the 
 father from gaining a settlement by five years residence. Bangor v. Bead- 
 field, XXXII. 60. 
 
 (f) Generally, and herein of emancipation. 
 
 42. A mother, who has entered into a second marriage, has power, with 
 the consent of her husband, to emancipate a minor child of her first marriage. 
 Dennysville v. Trescott, xxx. 470. 
 
 43. Such emancipation may be inferred from the conduct of the parties. 
 Dennysville v. Trescott, xxx. 470. 
 
 44. An alien, according to our statute, may gain, a settlement in this State. 
 Calais V. Marshfield, xxx. 511. 
 
 45. When minor children are separated from their father and maintained 
 by the town of their legal settlement, by reason of his inability to support 
 them, such separation is not to be considered as an abandonment of them or 
 him. Such support of his children is supplies indirectly furnished him within 
 the sixth clause of R. S. of 1841, c. 32, § 1. Sanford v. Lebanon, xxxi. 
 124. 
 
 46. Desertion by a minor child from his father's home, with vagrancy and 
 crime, does not constitute emancipation, so long as the father has not relin- 
 quished his right of control, nor consented that he should act for himself in- 
 dependently of the father. Bangor v. Beadfield, xxxii. 60. 
 
 47. Under the statute, an insane person may gain a settlement in any town, 
 in his own right, though carried to such town while insane, and without the 
 concurrence of a guardian. New Vineyard v. Harpswell, xxxiii. 193. 
 
 48. No acts or admissions of the overseers of the poor of a town can 
 change the legal settlement of a pauper. New Vineyard v. Harpswell, xxxiii. 
 193. 
 
 49. Evidence, that a person, after performing various jobs of labor in 
 the line of his business, in the same and neighboring towns, occasionally re- 
 turned to the house of a particular family, where he stayed whUe out of em- 
 ployment, has no tendency to prove that he had acquired a residence in that 
 family. Corinth v. Lincoln, xxxiv. 310. 
 
 50. Where the only evidence to establish the residence of a pauper, showed 
 that his home was in a particular family, it is not erroneous for the Judge to 
 instruct the jury, that, in order to justify them in finding a residence, it must 
 be proved that he was a member of that family. Corinth v. Lincoln, xxxiT. 
 310. 
 
 51. No one can become a member of another's family, so as thereby to 
 gain a residence under the pauper laws, unless voluntarily, and by consent of 
 the family. Corinth v. Lincoln, xxxiT. 310. 
 
 52. If, while a member of such family, pauper supplies are furnished to the 
 family, it will be considered they are furnished him, though of full age, and 
 not subject to the control of any of the family. Corinth v. Lincoln, xxxiv. 
 310. 
 
 53. Where the only evidence of supplies having been furnished to one who 
 had called for relief, was, that such articles were sent by the overseers, it is 
 
PAUPEE. 441 
 
 for the jury to decide whether they were received. Corinth v. Lincoln, 
 XXXIV. 310. 
 
 54. An arrival at the age of twenty-one years does not emancipate a child, 
 resident in his father's family, and nan compos mentis. Tremont v. Mt. 
 Desert, xxxvi. 390. 
 
 55. Supplies furnished by a town for the support of such child, though 
 more than twenty-one years of age, render the father constructively a pauper. 
 Tremont v. Mt. Desert, xxxvi. 390. 
 
 56. A minor child, of parents who are paupers, bound to service by the 
 selectmen, by written -indentures, until twenty-one years of age, is not thereby 
 emancipated. Oldtown v. Falmouth, XL. 106. 
 
 See OvEESEEEs, &c., 5. 
 
 II. LIABILITIES OF TOWNS. 
 
 57. In each town, it is the duty of the overseers to provide for the immedi- 
 ate comfort and relief of all persons residing or found therein and falling into 
 distress and needing immediate relief there, though having a lawful settle- 
 ment in another place. Brown v. Orland, xxxvi. 376. 
 
 58. Towns are required to relieve and support persons who are in need, 
 residing therein, and having no settlement in this State. Holden v. Brewer, 
 XXXVIII. 472. 
 
 59. When such persons remove into another town and fall into distress, no 
 further obligation . is imposed upon the town who first furnished the relief. 
 Holden v. Brewer, xxxviii. 472. 
 
 60. Where a pauper, whose settlement is in another town, is adjudged 
 insane and sent to the hospital, notice given of the expenses of commitment 
 and payment thereof, will render the town where he has his settlement liable 
 to reimburse them a,s for any other supplies. Eastport v. Belfast, xl. 262. 
 
 m. . ACTIONS. 
 
 (a) Between towns. 
 
 (b) Notice. 
 
 (C) ISTDIVIDTJAIS AGAINST TOWNS, 
 
 (d) Towns against individuals. 
 
 (a) Between towns. 
 
 61. At a trial, between towns, of the settlement of a pauper, the declara- 
 tions of the pauper respecting his intention, in going from one place to another, 
 made days before he left, unaccompanied by any acts, are inadmissible. Ban- 
 gor V. Brunswick, xxvii. 351. 
 
 62. In such trial, it is not necessary to prove by the record, that the per- 
 sons acting as overseers were legally such. It is sufficient to show that they 
 acted as such. Brewer v. East Machias, xxvil. 489. 
 
 63. The opinion or adjudication of overseers that the supplies, furnished by 
 them to an aUeged pauper of another town, were necessary, although made in 
 good faith, is not conclusive of that fact in a suit for their recovery. Thom- 
 aston V. Warren, xxviii. 289. 
 
 56 
 
442 PAUPER. 
 
 64. It is within the scope of the official powers of overseers, to adjust and 
 pay claims against their town, made for supporting any of their paupers by 
 another town. Harpswell v. Phipsburg, xxix. 313. 
 
 65. In an action between towns for the expense of a pauper, evidence of a 
 former suit, for previous expenses of the same pauper, and of payment of the 
 same by the overseers of the defendant town, is admissible. Harpswell v. 
 Phipsburg, xxix. 313. 
 
 66. Where an action was commenced between towns for the support of a 
 pauper, and a verdict was returned for plaintiffs ; and while that action was 
 pending, on a motion for a new trial, another suit was instituted between the 
 same parties, for the support of the same pauper, in which was a verdict for 
 the defendants, and exceptions were filed ; and afterwards the first verdict 
 was set aside : — Held, that however the first action might be decided, the 
 Court could only render such judgment in the latter action, as the exceptions 
 authorized. Bangor v. Brunswick, xxx. 398. 
 
 67. Whether, on the new trial in the first suit, the question of the settle- 
 ment of the pauper can be raised, quere-. Bangor v. Brunswick, xxx. 398. 
 
 68. Proof that a person was residing in a certain town a few months before, 
 and a few months after, its incorporation, is not prima facie proof that he was 
 resident there upon the day of its incorporation. Kirkland v. Bradford, 
 xxx. 452. 
 
 69. Where a pauper, belonging to another place, is supplied within and at 
 the expense of the plaintiff town, under a contract with an individual to 
 support all such paupers as the town should be obliged to support, such sup- 
 plies are furnished by the town ; and the plaintiff town may recover them 
 against defendant town, although the recovery is for the benefit of the con- 
 tractor. Calais 'V. Marshfield, xxx. 511. 
 
 70. In an action between towns for supplies furnished a married woman, 
 it is no defence, that the notice merely alleged that the wife of A. B. had 
 become chargeable, without stating that A. B. had become chargeable. 
 Sanford v. Lebanon, xxxi. 124. 
 
 71. K. S. of 1841, c. 32, § 30, provides that, in a suit between towns for the 
 support of a pauper, a " recovery" shall bar the town against which it was 
 had, from disputing the settlement of the same pauper with the prevailing 
 town in any future action brought for his support: — Held, — 
 
 1st. That the obtaining judgment by the defendant town against the plain- 
 tiff town in such action is a recovery against the plaintiff town ; — 
 
 2d. That each party is bound by such recovery, from further contesting the 
 pauper's settlement with the other; and — 
 
 3d. That such recovery estops the plaintiffs as well in a second suit 
 brought before the decision of the first suit, as in any other subsequent suit. 
 Oxford V. Paris, xxxiil. 179. Bangor v. Brunswick, xxxiii. 352. 
 
 72. In the action last tried, though first commenced, the record of such 
 judgment cannot be excluded by an agreement in writing, (made when the 
 last commenced action was under advisement upon exceptions,) that the first 
 commenced action should stand on as favorable grounds as if tried at the term 
 when such agreement was made. Bangor v. Brunswick, xxxiil. 352. 
 
 73. When a town, in which an insane person was resident, has incurred 
 expense in maintaining him at the Insane Hospital, such town, in order , to 
 recover for such expenses against the town of the pauper's settlement, must 
 notify the defendant town in the mode prescribed in the general pauper law. 
 Cooper V. Alexander, xxxiii. 453. 
 
PAUPER. 443 
 
 74. In a question as to the settlement of a pauper, his declarations are 
 admissible in evidence, to illustrate any acts by him done, tending to establish 
 the issue. Gornville v. Brighton, xxxix. 333. 
 
 75. Thus, when about going from the town where he was at work, to the 
 town where his former settlement was established, his declarations of his 
 purpose in that journey are admissible. Gornville v. Brighton, xxxix. 333. 
 
 76. And although the interrogatories drawing out his declarations may be 
 general, and when standing alone appear to refer to any departure of the 
 pauper, and therefore in itself inadmissible, yet, if it appears fi'om the answer 
 and from the proceedings, to have had reference only to a journey to the tovni 
 interested in the question, it furnishes no ground for exceptions. Gornville 
 V. Brighton, xxxix. 333. 
 
 77. A. and his wife and children, while residing in Bangor, were furnished 
 with supplies as paupers, the husband having no settlement in the State, and 
 the wife and children having their settlement in the town of Hampden : — 
 Held, that the latter town was liable for such part of the supplies as were 
 used by the wife and children, but not for such as were used for the husband. 
 Bangor v. Hampden, xli. 484. 
 
 78. In order for one town to recover in an action against another, for sup- 
 plies to paupers, the jury must be satisfied that the alleged paupers had fallen 
 into distress, and needed immediate relief, and that the supplies were neces- 
 sary. Bangor v. Hampden, xii. 484. 
 
 79. What may have been the cause of their distress and want in such case, 
 is immaterial. Bangor v. Hampden, xii. 484. 
 
 80. The cause of action by one town against another, for the support of a 
 pauper, accrues at the time of the delivery of the notice, that the expenses 
 have been incurred- And the statute of limitation begins then. Gutler v. 
 Maker, xli. 594. Vide LiMiTATiojsr, 8, 9. 
 
 (b) Notice. 
 
 81. In a claim by one town against another for supplying certain paupers^ 
 the plaintiiFs notified the defendants, that J. C, wife, and their seven child- 
 ren, naming them all, had fallen into distress, &c. Defendants replied, ac- 
 knowledging the receipt of the notice " touching the C. family," and denying 
 that"C. had a settlement in the defendant town : — Held, that the defend- 
 ants were not estopped to deny the settlement of the wife and children in 
 their town. Palmyra v. Prospect, xxx. ^11. 
 
 82. A notice, Talid as to one pauper, is not rendered invalid by being 
 united with a defective notice respecting other paupers. Sanford v. Leba- 
 non, XXXI. 124. 
 
 83. Under the general pauper law, the notice must be signed in the name 
 of the overseers, or of some one of them in their behalf. A notice, signed 
 in the name of some other person in their behalf, is not sufficient. Gooper 
 V. Alexander, xxxiii. 453. 
 
 84. "Selectmens' office, K., Feb. 1, 1857. — Gents., L. S. of B., has be- 
 come chargeable in this town as a pauper. You are hereby notified, that 
 we are supporting her at your expense and shall continue to do so, until she 
 is removed or otherwise provided for. — Per order of the board of overseers 
 of the poor of the tovm of K., J. H., chairman. To the overseers of the 
 poor of B.," is a sufficient notice. Gutler v. Maker, xii. 594. 
 
444 PAYMENT. 
 
 (c) Individuals against toivns. 
 
 85. If the overseers of the poor' do not provide for the immediate comfort 
 and relief of all persons residing in their town, or found therein and falling 
 into distress and needing immediate relief there, after notice that immediate 
 relief is needed, any person may furnish such relief and recover for the same 
 in an action against the town, although the plaintiflF knew that the town, or 
 an individual, bound to support the pauper, had made at another place, suit- 
 able provision for that purpose, if the pauper, while supported by such per- 
 son, was too sick to bear removal. Brown v. Orland, xxxYi. 376. Gross 
 V. Jay, xxxvii. 9. 
 
 86. An indebtment by the plaintiff to the pauper, will not defeat a recovery 
 in such action against the town. Brown t. Orland, xxxvi. 376. 
 
 87. When provision is made upon notice and request to the overseers, the 
 liability of the town to pay such person ceases. Gross v. Jay, xxxvii. 9. 
 
 88. If the person, making the request, is employed by the overseers to 
 keep the pauper for a limited time, and he continues to support the pauper 
 after the time agreed upon has elapsed ; the town will not be liable for such 
 support after the termination of their contract, without a new notice and 
 request, although the overseers knew the alleged pauper was unable to sup- 
 port himself. Gross v. Jay, xxxtii. 9. 
 
 . (d) Towns against individuals. 
 
 89. When persons, having settlements in other towns, fall into distress 
 and heed immediate relief, the overseers of the poor are not under the neces- 
 sity of inquiring or considering whether such persons have or have not pro- 
 perty, for any other purpose than to enable them to determine whether they 
 have actually fallen into distress, and need immediate relief. It is the design 
 of the law, that relief should be rendered those found in that condition ; and 
 if they have property, the amount expended for their relief may be recovered 
 of them, by the towns in which they have their legal settlement. Brewer v. 
 East Machdas, xxTii. 489. 
 
 PAYMENT. 
 
 I. WHAT IS A PAYMENT. AND ITS EFFECT. 
 n. APPROPRIATION OF PAYMENT. 
 
 See VoiuNTAKT Payment. 
 
 I. WHAT IS A PAYMENT, AND ITS EFFECT. 
 
 1. Payment, made before a note has become payable, to the only authorized 
 agent of the holder, has the same effect as if made to the holder personally. 
 Patten v. Fullerton, xxvii. 58. 
 
 2. Where a practising attorney, in the transaction of business, takes a 
 negotiable note to his principal, payments made on such note to the attorney 
 in specific articles instead of money, would not bind the principal, as a general 
 
PAYMENT. 445 
 
 rule. But, if one such payment be received by the principal, and the note is 
 stlU suffered to remain in the attorney's possession, without objection to the 
 attorney or debtor, such payments would discharge the note the same, as if 
 made in money. Patten v. Fullerton, xxvii. 58. 
 
 3. The payment of a part only of a sum due, at the time and place of 
 payment, on a promise to cancel the whole claim, discharges the indebtedness 
 to the amount of the sum paid ,and nothing more, there being no considera- 
 tion for the promise. The least consideration, however, in such case, is suf- 
 ficient. Einkley v. Arey, xxvn. 362. White v. Jordan, xxvii. 370. 
 
 4. The receiving of a town order by the collector in payment of taxes, is 
 not of itself, a payment of the order. Willey v. Greenfield, xxx. 452. 
 
 5. Upon the settlement of an account, the allowance of an item of charge 
 by the guardian, for his negotiable note, given to the ward for a specified sum, 
 is a payment made to the w^rd. Pierce v. Irish, xxxi. 254. 
 
 6. Such a charge is lawfully allowed, when the Judge of Probate is satisfied 
 it was the intention of the ward to receive the note as a payment. Pierce v. 
 Irish, XXXI. 254. 
 
 7. Where the amount of a note has been lodged by a debtor in the hands 
 of a third person, upon a stipulation by the latter that he would therewith 
 pay the note, and he afterwards purchased the note,, the transaction constitutes 
 a payment. Williams, v. Thurlow, xxxi. 392. 
 
 8. And it is equally a payment, whether the said amount had been received 
 by such purchaser in cash or real estate at a stipulated price. Williams v. 
 Thurlow, XXXI. 392. 
 
 9. Where A. obligated himself to pay money to another, so soon as paid 
 to him by a third person, the taking by him of a new note, of such third per- 
 son, upon an extended pay-day, is a payment received by A. Greenleaf v. 
 EUl, XXXI. 562. 
 
 10. A creditor of an intestate, who has received for his debt, a negotiable 
 note against a third person, of the same amount, secured by a mortgage of 
 land, has no further interest in the estate, although the maker became insol- 
 vent, and the mortgage was valueless. Bawson v. Piper, xxxiv. 98. 
 
 11. Where money for the payment of a debt had been left with a deposi- 
 tary for the creditor, and the debtor, with a full knowledge of all the circum- 
 stances, had ratified the act of deposit, it will be deemed a payment. Ingalls 
 V. Fiske, XXXIV. 232. 
 
 12. If negotiable paper be received for an existing debt, the presumption 
 is, that it was taken as a payment of the debt. Fowler v. Ludwig, xxxiv. 
 455. 
 
 13. This presumption may be rebutted by proof of circumstances, showing 
 that it was not the creditor's intention to receive it as payment. Fowler v. 
 Ludwig, xxxiv. 455. 
 
 14. Such a misapprehension, by a creditor, of his rights, as would repel 
 the presumption of payment, must be a misapprehension arising from a want 
 of full knowledge of the/ac4s. Fowler v. Ludwig, xxxit. 455. 
 
 15. If the negotiable paper accepted is not binding upon aU the parties 
 under previous absolute liability, the presumption may be considered as re- 
 pelled. Fowler v. Ludwig, xxxiT. 455. 
 
 16. A negotiable order, accepted by the creditor of a corporation for a 
 previous debt, is presumed to be payment, although drawn by the prudential 
 
446 PAYMENT. 
 
 officers of the corporation upon its own treasurer. Fowler v. Ludwig, 
 XXXIV. 455. 
 
 17. Where plaintiff's claim, in assumpsit, is reduced below twenty dollars, 
 by evidence in payment 'pro tanto, and not in set-off, he is restricted to quar- 
 ter costs. Dodge v. Swazey, xxxv. 535. 
 
 18. Until the expiration of twenty years from the recovery of a judgment, 
 there arises, from lapse of time, no degree of presumption of payment. 
 Thayer v. Mowry, xxxvi. 287. 
 
 19. For an agreement by a judgment creditor, that he would allow, upon 
 the judgment, the amount, which, prior to the judgment, he had received 
 toward the debt, such receipt of the money is a sufficient consideration. 
 And in a suit upon the judgment, the jury may treat the amount received as 
 a payment upon the judgment. Thayer v. Mowry, xxxvi. 287. 
 
 20. If a surety, when paying the debt of another, shall receive from a 
 third person a note or contract to pay him the amount so paid, such note or 
 contract is presumed to have been a payment. Parhhurst v. Jackson, xxxvi. 
 404. 
 
 21. The absence of previous or contemporaneous assent to a transaction, 
 renders its ultimate validity contingent, it being doubtful whether the neces- 
 sary ratification will ever be given. Fish v. Holmes, xli. 441. 
 
 22. A subsequent assent does not relate back so as. to prejudice a party, 
 whose conduct has been guided by the transaction as it actually occurred. 
 Still less, will a party be injuriously affected by a subsequent assent to, or 
 affirmation of an act, if the party assenting or affirming had dis-affirmed and 
 repudiated it, when th'e act was first communicated. Fisk v. Holmes, xli. 
 441. 
 
 23. When a foreclosure is perfected, and the mortgaged. premises exceed 
 in value the notes secured, they must be deemed to have been paid; and 
 no action can be maintained upon them. Hurd v. Goleman, xlii. 182. 
 
 24. Several persons paid for a mercantile adventure, by a draft on time, 
 to which draft all were parties. Subsequently, by written contract, each 
 agreed to pay his proportion of the draft at maturity, in consideration of 
 being entitled to an equal share of the profits. The adventure was not 
 successful. The draft was not paid at maturity, and suit was brought by 
 the indorsers, who had been obliged to- take it up, against the acceptors. 
 Both plaintiffs and defendants were parties to the adventure: — £'eM, that 
 the contract was neither payment of the draft nor a discharge of the parties 
 to it ; and that the action could be maintained, as also an action upon the 
 contract. — Held aZso, that the contract is evidence of what each agreed to 
 pay in the adventure, and is equivalent to a receipt from the plaintiffs for their 
 proportion of the drafts, and reduces, by so much, the amount to be recover- 
 ed by them. Grooker v. Tallman, xiii. 329. 
 
 See Bills, &c. 32, 37, 116, 156. 
 
 n. APPROPEIATION OF PAYMENT. 
 
 25. In an action by two counselors and attorneys, as partners, they cannot 
 change the appropriation of money paid to them after the partnership existed, 
 and credited at the time on the partnership account, after the lapse of years, 
 
PAYMENT. 447 
 
 to an appropriation to the payment of a prior claim of one of the partners, 
 rendered in the same suit. Godman v. Armstrong, xxviii. 91. 
 
 26. In a suit upon a witnessed note, an account barred by the statute of 
 limitations, but of about the same date with the note, and larger in its amount, 
 was filed in set-off: — Meld, that, as a set-off, the law would not sustain it, 
 nor allow so much of it to be proved as to balance the note. Neither will 
 the law appropriate the account to the payment of the note, nor presume, 
 after any lapse of years, that the plaintiff had so appropriated it. Nason v. 
 McOuUock, XXXI. 158. 
 
 27. Where a debtor, owing several debts to the same person, pays him 
 money, and neither of the parties make any appropriation of it, the law 
 applies it to the oldest debt. Milliken v. Tufts, xxxi. 497. 
 
 28. A creditor cannot make a valid appropriation of a pa3rment, at a time 
 when a controversy there.on has arisen between himself and the debtor. 
 Milliken v. Tufts, xxxi. 497. 
 
 29. Where an insurance has been effected upon real estate mortgaged to 
 secure several notes, and the mortgagee has received money for a loss by fire, 
 such money is to be appropriated first to the interest on all the notes overdue, 
 and the surplus to the principal of the notes, in the order of their respective 
 pay-days. Larrabee v. Lumhert, xxxii. 97. 
 
 30. A partial payment, made by a party who was indebted severally and 
 also jointly with another, to the same creditor, for items of book charges, is 
 to be applied upon the several debt, unless a different appropriation was 
 intended at the time of the payment. Livermore v. Claridge, xxxiii. 428. 
 
 31. Though the creditor, in such case, have credited the money to the joint 
 account, he is not thereby precluded to transfer it to the several debt, by 
 proving, that, as to a part of the items, he, by the unauthorized pretensions 
 of the party paying the money, was deceptively led to charge the joint, 
 instead of the several account. Livermore v. Claridge, xxxiii. 428. 
 
 32. A debtor, when paying money, has the right to appropriate it to any 
 one of the creditor's demands. Treadwell v. Moore, xxxiv. 112. Witherell 
 V. Joy, XL. 325. 
 
 33. If he appropriate it, though to a claim arising for a violation of law, 
 the Court cannot afterwards transfer its appropriation to a debt lawfully ex- 
 isting. Treadwell v. Moore, xxxiv. 112. 
 
 34. But, if no appropriation be made, the law will apply it to that one of 
 the creditor's claim which is legal. Treadwell v. Moore, xxxiv. 112. 
 
 35. Partial payments on a running account, without special appropriation, 
 are to be applied in discharge of the earliest items. Thurlow v. Gilmore, 
 XL. 378. 
 
 36. And this rule is applicable where such payments are made by one of 
 full age, upon an account, commencing before and terminating after, the 
 debtor's majority. Thurlow v. Gilmore, XL. 378. 
 
448 PEDDLING AND PEDDLERS. — PENALTY. 
 
 PEDDLING AND PEDDLERS. 
 
 1. A person, ^vho rightfully obtained a license to peddle, is not liable to a 
 penalty for not having one, thougli the commissioners had omitted to complete 
 their records of it. Foster v. Dow, xxix. 442. 
 
 2. Unexpired licenses, under an Act which is repealed, are not annulled by 
 the repeal, when in conformity with existing laws. Foster v. Dow, xXix. 
 442. 
 
 3. The traveling from place to place, though within the same town, for the 
 purpose of vending goods, wares and merchandize, without having obtained 
 license therefor, is a violation of the Acts of 1846, c. 200, and of 1848, c. 63. 
 Andrews v. White, xxxii. 388. 
 
 PENALTY. 
 
 1. Chapter 148, § 49, of R. S. of 1841, is a remedial and not a- penal 
 statute. PhilbrooTc v. Handley, xxvii. 53. Thatcher v. Jones, xxxi. 528. 
 Frohock V. Pattee, xxxviii. 103. 
 
 2. Where the selectmen omit to perform an official duty, and from the facts 
 presented, their motives are so explained, as to show that it was neither un- 
 reasonable, corrupt, nor wilfully oppressive, no penalty will be incurred. 
 Barlow v. Young, xxxvii. 88. 
 
 3. Thus, where the selectmen omitted to appoint a sealer of weights and 
 measures, and it appeared that the inhabitants, by their vote, did not wish 
 any appointed ; and the treasurer of the tovm had never provided any weights 
 or measures, no penalty is incurred. Harloiv v. Young, xxxvii. 88. 
 
 4. A penal statute is such only as would authorize the commencement of a 
 suit, indictment or information, in the name and for the use of the State, at 
 any time within two years, unless previously a prosecution had been com- 
 menced within one year by an individual. Frohoclc v. Pattee, xxxviil. 103. 
 
 5. In a penal action, one offence is punishable only by one suit, and, there- 
 fore barred by a former verdict. Frohock v. Pattee, xxxviii. 103. 
 
 6. R. S. of 1841, c. 158, § 17, imposes a penalty of not more than $30, 
 for falsely and corruptly certifying as a witness, to more travel and attendance 
 than there had really been. Kennedy v. Wright, xxxiv. 351. 
 
 7. Such certificate is presumed to be true, till disproved, when it is pre- 
 sumed to have been made corruptly. Kennedy v. Wright, xxxiT. 351. 
 
 8. It is for the jury to assess the damages under this statute. Kennedy v. 
 Wright, xxxiv. 351. 
 
 9. To justify one in certifying his travel and attendance as a witness, he 
 must have been in actual attendance at the court house. Though not con- 
 stantly in the house, he must be within call, at his perU. Kennedy v. Wright, 
 XXXIV. 351. 
 
PENSION.— PERJURY. — PERSONAL PROPERTY. 449 
 
 PENOBSCOT RIVER. 
 See Colonial Ordinance. 
 
 PENSION. 
 
 1. By the Act of Congress of June 19, 1842, the children of a widow, to 
 whom, at the time of her death, any amount of pension was due from the 
 United States, are entitled to their equal portion thereof, free from all claims 
 by the creditors or legal representatives of their mother. Shirley v. Walker, 
 XXXI. 541. 
 
 2. The administrator of the mother, receives such pension merely in trust 
 for her children. Shirley v. Walher, xxxi. 541. 
 
 3. Where such administrator, (prior to the Act of 1844,) has received such 
 pension money, in trust for a feme covert, an action against him to recover 
 the same, may be brought jcrintly by her husband and herself. Shirley v. 
 Walker, xxxi. 541. 
 
 PERJURY. 
 
 1. In an indictment for perjury, the falsity of the testimony, given by the 
 accused, cannot be proved, except by something more than the testimony of 
 one witness. Newhit v. Statuck, xxxv. .315. 
 
 2. It is not enough to aver in an indictment for perjury, that the perjury 
 was committed in a proceeding in a Court of justice. State v. Sanson, 
 xxxix. 337. 
 
 3. Where the perjury is predicated upon answers made by the respondent 
 to certain interrogatories, propounded to him on a vrrit of scire facias, it 
 will be invalid, unless the indictment alleges the entry or pendency of such 
 writ in court. State v. Sanson, xxxix. 337. 
 
 4. Designating the term of the court, at which the offence charged occurred, 
 is not a sufficient averment of the time required to be stated. State v. San- 
 son, XXXIX. 337. 
 
 PERSONAL PROPERTY. 
 
 _ 1. By the Act of February 11, 1789, § 3, all lands levied on by an admin- 
 istrator, were held to the sole use and behoof of the widow and heirs of the 
 deceased, and could only be distributed by the Judge of Probate as personal 
 estate. Furlong v. Soule, xxxix. 122. 
 
 57 
 
450 PLANTATION.— PLEADIKG. 
 
 2. A dwelUnghouse, erected on the land of another, with the previous 
 knowledge and consent of the owner of the land, remains the personal pro- 
 perty of the builder. Fuller v. Tabor, xxxix. 519. 
 
 3. And if so erected without such knowledge and consent, the owner's sub- 
 sequent assent that it may remain, will make it equally personal property. 
 Fuller V. Tabor, xxxix. 519. 
 
 4. If, under a parol agreement to purchase land, one goes on and erects a 
 dwellinghouse, but leaves it unfinished and not underpinned, such house is 
 personal estate. Pullen v. Bell, xl. 314. 
 
 PLANTATION. 
 
 1. The Act of 1850, c. 196, § 1, authorized assessors of plantations organ- 
 ized for election purposes, and comprised within the limits of a single town- 
 ship or half a township, to prosecute, " in the name of the plantation," for 
 trespass upon the public reserved lots. Plantation v. Hutchinson, xxxvi. 
 374. 
 
 2. But, in case of a plantation, comprised of more than a whole township 
 of territory, that Act gave no rights of action either to the plantation, or to 
 its assessors. Plantation v. Hutchinson, xxxvi. 374. 
 
 3. When a plantation claims to support an action as a corporation duly 
 organized under the Act in relation to elections, they must show a compliance 
 with the provisions of the Act. Plantation v. Bean, xl. 218. 
 
 4. Without a return by the assessors, to the office of Secretary of State, of 
 certain and definite limits of the plantation, the organization is defective and 
 of no validity. Plantation v. Bean, xl. 218. 
 
 See Agency, 3. 
 
 PLEADING. 
 
 I. PARTIES. 
 
 n. DECLARATION, 
 
 m. RESULTS OF PLEADINGS. 
 
 IV. GENERAL REQUISITES OF PLEADINGS. 
 
 V. SPECIAL PLEADING GENERALLY. 
 
 VI. PLEADING DOUBLE. 
 
 Vn. DEFECTS IN PLEADING, WHEN CURED. 
 
 Vin. ADMISSIONS BY PLEADING. 
 
 IX. BRIEF STATEMENTS, COUNTER BRIEF STATEMENTS, AND 
 SPECIFICATIONS OF DEFENCE. 
 
 For Pleading in particular subjects, See appkopbiate titles. 
 
PLEADING. 451 
 
 I. PASTIES. 
 
 (a) Genebahy. 
 
 (b) JOINDEB OP PLADfTIFPS. 
 
 (c) Joinder op defendanis. . 
 
 (a) Generally. 
 
 1. In an action of tort, wherein the defendants are described, and the 
 ■wrongful act is alleged to have been done by them, as partners, and they 
 severally plead the general issue, the allegation of partnership is immaterial. 
 Head v. Goodwin, xxxvii. 181. 
 
 (b) Joinder of 'plaintiffs. 
 
 2. A person, who has assigned aU his interest in a contract made to him, 
 need not join with the assignee as a plaintiff, in a bUl of performance. Mil- 
 ler V. WhiUier, xxxii. 203. 
 
 3. For an injury done to a wife through a defect in the highway, the hus- 
 band and wife must join in the suit. Starhird v. Franhfort, xxxT. 89. 
 
 4. To maintain assumpsit against one, who, after the loss of a vessel at 
 sea, has received the insurance money upon her freight, aU the part owners 
 must join, as co-plaintiffs. White v. Curtis, xxxv. 534. 
 
 6. Advantage of a non-joinder may be taken on the general issue. White 
 V. Curtis, XXXV. 534. Jones v. Lowell, xxxv. 538. 
 
 6. In trespass, the exception is only available by plea in abatement. Jones 
 V. Lowell, xxxv. 538. 
 
 (c) Joinder of defendants. 
 
 7. The non-joinder of a co-promissor can be taken advantage of only by 
 plea in abatement. White v. Gushing, xxx. 267. 
 
 8. After pleading the general issue, no objection can be taken by the de- 
 fendant, to the non-joinder of his joint co-promisor. Beed v. Wilson, xxxix. 
 585. 
 
 n. DECLAEATIOCN. 
 
 (a) General rules. 
 
 (b) Declarations in particular actions. 
 
 (c) Variance. 
 
 (d) Joinder op counib. 
 
 (e) "Wrong venue. 
 
 (a) General rules. 
 
 9. The second count in a writ need not allege, that it is for a cause of 
 action "other" than that of the first count. Ware v. Webb, xxxii. 41. 
 
 10. It is not a rule of law, that all the points, which may be raised by the 
 pleadings in a case, are necessarily involved in the decision. Lunlap v. 
 Glidden, xxxiv. 517. 
 
 11. A general demurrer to a declaration containing several counts, is un- 
 sustainable, if any of the counts are good. Blanchard v. Hoxie, xxxit. 376. 
 
452 PLEADING. 
 
 (b) Declarations in particular actions. 
 
 12. In an action upon a promissory note, payable at a particular time and 
 place, it is not necessary to aver or prove its presentment then and there. If 
 the maker was there, prepared to pay it, that is a matter of defence to be 
 pleaded and proved. Lyon v. Williamson, xxvii. 149. 
 
 13. And, although the maker was then and there prepared to pay the note, 
 and the holder was not there to receive it, yet, if he subsequently demand 
 payment there, and cannot obtain it, he may maintain an action for it. Lyon 
 V. Williamson, xxvii. 149. 
 
 14. A declaration charging trespass upon the plaintiff's close is bad, on 
 general demurrer, if it do not describe the close or allege the venue. Moody 
 V. Hinchley, xxxiv. 200. 
 
 15. In a declaration upon the covenants of seizin and of right to sell, in a 
 deed, the breaches are sufficiently set forth by negativing the words of the 
 covenant. Blanchard v. Hoxie, xxxiv. 376. 
 
 16. But, in a declaration upon the covenants of freedom from incumbrances, 
 and for quiet enjoyment, the breaches must be specially set forth. Blanchard 
 V. Hoxie, XXXIV. 376. 
 
 17. In a count for covenant broken, alleging several breaches, there maybe 
 a recovery for such breaches as are well assigned, although others may be 
 fatally defective. Blanchard v. Hoxie, xxxiv. 376. 
 
 18. A declaration negativing the words of the covenant of seizin, is not 
 defeasible on general demurrer, although it proceed to allege, that the defend- 
 ant's seizin did not extend to a described part of the land. Blanchard v. 
 Hoxie, xxxiT. 376. 
 
 19. In an action for services rendered, no damages can be recovered for the 
 violation of a contract. Lvfldn v. Patterson, xxxTiil. 282. 
 
 20. When the new promise is made or arises, after the right to maintain 
 a suit upon the original cause of action has been entirely extinguished, or 
 when the new promise varies from the original, there should be a count upon 
 the new promise. In other cases, the declaration may be upon the original 
 note. Howe v. Saunders, xxxviii. 350. 
 
 21. In an action for abuse of legal process, it is not necessary to aver or 
 prove, that the process is at an end, or that it was sued out maliciously, or 
 without probable cause. Page v. Gushing, xxxviil. 523. 
 
 22. In dower, unless the declaration alleges a seizin of the husband of an 
 estate of which by law, his widow is dowable, it is defective and insufficient. 
 Freeman v. Freeman, xxxix. 426. 
 
 23. So it must also show, that the demand for dower was of the one then 
 seized of the freehold, if within the State, otherwise of the tenant in posses- 
 sion. Freeman v. Freeman, xxxix. 426. 
 
 24. In writs founded upon R. S. of 1841, c. 148, § 49, all the material 
 elements necessary to give the plaintiff a right of action, must be affirmatively 
 and distinctly alleged. And, unless the defendant is charged with knowingly 
 aiding and assisting the debtor in the fraudulent concealment or transfer of 
 property, liable to seizure by attachment or levy, the declaration is insufficient. 
 Herrichv. Osborne, xxxix. 231. 
 
PLEADING, 453 
 
 (c) Variance. 
 
 25. A declaration upon a contract for a specified quantity of an article, 
 though laid under a videlicet, is not sustained by proof of a contract for a 
 larger quantity. Foster v. Pennington, xxxii. 178. 
 
 26. Upon a count on a note, not alleged to be on interest, a note drawing 
 interest, though agreeing in aU other respects with the count, cannot be read 
 in evidence. Oragg v. Frye, xxxii. 283. 
 
 27. Such a count, in a suit previously commenced, and yet pending, can- 
 not be pleaded in abatement, in an action upon a note drawing interest, as 
 being for the same cause of action. Oragg v. Frye, xxxii. 283. 
 
 (d) Joinder of counts. 
 
 28. It is no valid objection to a declaration, that it contains one count in 
 case and another of trespass de bonis asportatis. Moulton v. Smith, xxxii. 
 406. 
 
 29. It is only in the form of declaring, and not in any matter of substance, 
 that R. S., of 1841, c. 115, § 13, has abolished the distinction between tres- 
 pass and case. Sawyer v. Goodwin, xxxit. 419. 
 
 30. An allegation of breaking and entering into land, is of substance ; and 
 a count, containing no such allegation, but framed technically in case, for in- 
 juries done to land, or in trespass de bonis, for goods taken from it, cannot be 
 sustained by an unlawful entry. Sawyer v. Goodwin, xxxiT. 419. 
 
 31. Nor can a declaration in trespass quare clausum, alleging immediate 
 acts of injury to land, be sustained by merely proving an injury consequen- 
 tially resulting from acts done upon the land. Sawyer v. Goodwin, xxxit. 
 419. 
 
 32. To such a declaration, an amendment, introducing a count framed as 
 in case, alleging the damages to have been consequential, is not allowable. 
 Sawyer v. Goodwin, xxxit. 419. 
 
 33. It is not objectionable, that the plaintiff has claimed more in his 
 declaration than he has proved, or more than he could rightfully demand ; or 
 that he has presented his claim on different grounds in different counts. 
 Cole V. Sprowl, xxxt. 161. 
 
 (e) Wrong venue. 
 
 34. In local actions, if the venue be in the wrong count}'', and it appear on 
 the record, advantage should be taken by demurrer. After pleading to the 
 merits, and after verdict, the objection comes too late. .Heath v. Whidden, 
 XXIX. 108. 
 
 III. EESXTLTS OF PLEADINGS. 
 
 35. Defendants, having pleaded the general issue, have a right to a trial 
 thereon; and special pleas in justification are not a waiver of that right. 
 Nye V. Spencer, xli. 272. 
 
 36. Every plea must stand or fall by itself; and the language of one plea 
 cannot be taken advantage of to support or vitiate another. Nye v. Spencer, 
 
 XLI, A I Jim 
 
454 PLEADING. 
 
 37. After an issue of law is raised upon a demurrer to a plea in bar, the 
 case comes properly before the law court for its determination of that ques- 
 tion ; and if decided in favor of the plaintiff, the case goes back for trial 
 upon the issue of fact. Nye v. Spencer, xxi. 272. 
 
 38. When, in compliance with the Act of 1852, c. 246, § 8, the judg- 
 ment rendered in the law court is certified to the clerk of the county where 
 the action is pending, its effect is limited to the question presented. Nye t. 
 Spencer, xli. 272. 
 
 rv. GENERAL REQtnSITES OF PLEADINGS. 
 
 (a) Certainty and paeticulaeity. 
 
 (b) Mateeialitt. 
 
 (c) FoBMINQ AN ISSUE, AND CONCLUSION OP PLEAS. 
 
 (d) Vaeiance. 
 
 (a) Certainty and particularity. 
 
 39. When the defence to a note, is a readiness of the defendant to pay 
 it according ,to its tenor, the plea must state, that he was ready to pay the 
 money at the time and place named; that he has ever since been ready there 
 to pay the same ; and that he brings the money into Court for the plaintiff. 
 Lyon V. Williamson, xxtii. 149. 
 
 40. Where a plea in bar to the further maintenance of the suit, sets forth 
 a conveyance by demandant of the premises, by a deed duly executed, ac- 
 knowledged and recprded, it is sufficient, though it does not allege that the 
 deed was delivered. Rowell v. Hayden, xi. 582. 
 
 See Bankbtjpict, 22. 
 
 (b) Materiality. 
 
 41. To an action on promises, a special plea in bankruptcy is bad on gen- 
 eral demurrer, if it do not allege that the debt sued was not of the classes 
 excepted in the first section of the bankrupt law. Frost v. Tibletts, xxx. 
 188. 
 
 42. If a replication to a special plea in bari which presents new matter, 
 should conclude with tendering an issue, and the issue is joined, its material- 
 ity is then to be determined. FroJioch v. Fattee, xxxviii. 103. 
 
 (c) Forming an issue and conclusion of pleas. 
 
 43. If the parties put in issue a matter, which is incapable of being legally 
 made so, the Court may direct the pleadings respecting it to be struck out or 
 disregarded. Ham v. Ham, xxxtii. 261. 
 
 44. A replication to a special plea in bar, which presents new matter, 
 should conclude with a verification. Frohock v. Pattee, xxxviii. 103. 
 Wilton Manuf'g Co, v. Woodman, xxxii. 185. 
 
 45. In dower, the plea we ungues accovple, should conclude with a verifica- 
 tion ; but, if it should conclude by tendering an issue to the country, though 
 bad on demurrer, still, if the declaration be bad also, judgment must be 
 against the party committing the first fault in pleading. Freeman v. Freeman, 
 XXXIX. 426. 
 
PLEADING. 455 
 
 (d) Variance. 
 
 46. A reference, made by a party in pleading, to documents concerning a 
 point not in controversy, will not invalidate his proceedings, although such 
 documents contain representations at variance -with, the allegations of the par- 
 ty making the reference. Sohhs v. Parker, xxxi. 143. 
 
 47. In such case, he may show the documents to be erroneous. Hobbs v. 
 Parker, xxxi. 143. 
 
 V. SPECIAL PLEADING GENERALLY. 
 
 48. In a suit in error, a plea of accord and satisfaction is not appropriate. 
 But a release of errors is a perfect defence. Wilton Manuf'g Co. v. Wood- 
 man, XXXII. 185. 
 
 49. In a complaint, charging a misdemeanor, the defendant is not preclud- 
 ed from traversing any material allegation, though made under a videlicet. 
 State v. Phinney, xxxii. 439. 
 
 50. A former conviction for the same oifence, cannot avail in arrest of 
 judgment. It should be specially pleaded. State v. Barnes, xxxii, 530. 
 
 51. A general demurrer to a declaration containing several counts, is un- 
 sustainable, if any of the counts are good. Blanchard v. Hoxie, xxxiv., 376. 
 
 52. Matters in defence, arising after the commencement of the suit, and 
 before issue joined, cannot be pleaded in bar generally, but may be as to the 
 further maintenance of the suit. Powell v. Hayden, XL. 582. 
 
 53. If the demandant in a real action, after the commencement of his suit 
 conveys the demanded premises to a third person, the tenant may successfully 
 interpose a plea in bar to the further maintenance of the suit. Powell v. 
 Hayden, xl. 582. 
 
 54. Objection to the time of filing a plea pwis darrein continuance, cannot 
 be made upon demurrer, but through a motion to set aside the plea. Powell 
 v. Hayden, XL. 582. 
 
 55. Whether the payment of a debt, after it has been put in suit, must be 
 specially pleaded in bar to its further maintenance, giiere. Fish v. Holmes, 
 xii. 441. 
 
 VI. PLEADING DOUBLE. 
 
 56. Double pleading is at the discretion of the Court, and will be allowed 
 only when there is reasonable ground for believing it will be for the further- 
 ance of justice. Wilton Manuf'g Go. v. Woodman, xxxii. 185. 
 
 YII. DEFECTS IN PLEADING, WHEN CTJRED. 
 
 57. After pleading in bar to an action, advantage of the non-joinder of a 
 co-promisor, cannot be taken advantage of. White v. Gushing, xxx. 267. 
 
 58. So of an insufficient service of '^he writ, a general appearance and con- 
 tinuance waives the objection. Shaw v. Usher, xli. 102. 
 
456 PLEADING. 
 
 Vin. ADMISSIONS, BY PLEADING. 
 
 59. When errors of fact are assigned for the reversal of a judgment, a 
 plea of "in nullo est erratum," admits the truth of the facts assigned. Smith 
 V. Bhodes, xxix. 360. 
 
 60. In a suit brought in the name of a corporation, the plea of general 
 issue admits the existence of the corporation. Put. F. School v. Fisher, 
 XXX. 523. 0. & L. B. B. Co. v. Veazie, xxxix. 571. P. & K. B. B. Go. 
 V. Dunn, xxxix. 587. 
 
 61. In an action, by one who sues as administrator, the general issue or 
 plea in bar admits him to be an administrator. Clark v. Pishon, xxxi. 503. 
 
 62; In such an action, the general issue may be rejected, if it purport to 
 reserve to the defendant a right of denying that the plaintiff is administrator. 
 Clarh V. Pishon, xxxi. 503. 
 
 63. The demurring to a bad plea does not have the effect of admitting as 
 true the facts therein alleged, to be used in the trial of other issues. Stinson 
 V. Gardiner, xxxill. 94. 
 
 64. The pleading of the general issue admits the competency of the de- 
 fendants to be sued by the name given them in the writ. Moran v. P. S. & 
 P. B. B. Co., XXXV. 55. 0. & L. B. B. Go. v. Veazie, xxxix. 571. 
 
 65. So is the corporate character of a plaintiff proprietary admitted by 
 pleading the general issue. Boxbury v. Huston, xxxvii. 42. 
 
 66. So is the disseizin by the tenant admitted, by pleading the general 
 issue only to a writ of entry, and under it the tenant cannot prove a personal 
 title in a third person, superior to the demandant's. Warren v. Miller, 
 
 XXXTIII. 108. 
 
 67. The plea of general issue admits the defendant corporation's capability 
 of being sued where the action was commenced. Freeman v. M. W. P. & 
 M. Co., XXXVIII. 343. 
 
 68. It does not admit that a plaintiff corporation has performed conditions 
 by which contracts made with it have become binding. Freeman v. M. ■ W. 
 P. & M. Co., XXXTIII. 343. 0. & L. B. B. Co. v. Veazie, xxxix. 571. 
 P. & K. B. B. Co. V. Dunn, xxxix. 587. 
 
 IX. BRIEF STATEMENTS, COUNTER BRIEF STATEMENTS AND SPECI- 
 FICATIONS OF DEFENCE. 
 
 69. A plaintiff is under no necessity of filing a counter brief statement, 
 unless ordered by the Court. Pratt v. Knight, xxix. 471. 
 
 70. Brief statements cannot prevent the admission of testimony, pertinent 
 under the general issue. Trash v. Patterson, xxix. 499. 
 
 71. The omission, in a counter brief statement, to deny any allegation pf 
 the brief statement, cannot destroy or control the effect of testimony properly 
 received under the former. Trask v. Patterson, xxix. 499. 
 
 72. To an action of dower, non-tenure cannot be proved under a brief 
 statement ; it must be pleaded in abatement. Manning v. Lahoree, xxxiii. 
 343. 
 
 73. A counter brief statement made by the plaintiff's counsel and read to 
 the Court during the trial, but which was not signed by the plaintiff or his 
 
POOR DEBTOR. 457 
 
 counsel, forms no part of the proceedings, and may be withdrawn. Blaisdell 
 y. Boherts, xxxvil. 239. 
 
 74. Under K. S. of 1841, brief statements of matters of defence, aside 
 from such as would come under the general issue, must be certain to a com- 
 mon intent, as much as if stated in a special plea. Day v. Frye, xxi. 326. 
 
 75. A notice of special matter to be given in evidence, in defence, under the 
 general issue, must contain as distinct an allegation of the grounds of defence 
 as would be required in a special plea, though not set forth with the same 
 technicality. Bay v. Frye, xli. 326. 
 
 76. But the rules of special pleading can rarely be applied to brief state- 
 ments and counter brief statements. The object of allowing these was to 
 obviate that exactness of allegation and denial, by which parties were some- 
 times so entangled as to prevent a trial upon the merits. Day v. Frye, xii . 
 326. 
 
 77. In specifications of defence, under the Act of 1855, c. 174, § 4, it is 
 not sufficient for the defendant to aver, generally, that the plaintiff has no 
 claim whatever against him. Sart v. Hardy, xlii. 196. 
 
 78. The specifications must be more than a plea of the general issue, and 
 sufficient to apprise the plaintiff' of the obstacles that would be presented to 
 the maintenance of his suit. Hart v. Hardy, xxii. 196. 
 
 POOR DEBTOR. 
 
 I. ARREST ON MESNE PROCESS. 
 II. PROCEEDINGS IN OBTAINING DISCHARGE. 
 
 III. BONDS. 
 
 IV. FALSE DISCLOSURE. 
 
 ARREST ON MESNE PROCESS. 
 See Aebest. 
 
 n. PROCEEDINGS IN OBTAINING DISCHARGE. 
 
 (a) Application and notice to ckeditoks. 
 
 (b) Justices, and their selection. 
 
 (c) Examination and proceedings. 
 
 (d) Appkaisal and assignment op peoperty disclosed. 
 
 (e) Record and cektipioate op discharge, and its -eppect. 
 
 (a) Application and notice to creditors. 
 
 1. The adjudication of a tribunal duly organized, for taking the disclosure 
 of a poor debtor, upon the legality of the notice given to the creditor, is con- 
 clusive. Baker v. Holmes, xxviii. 153. Lowe v. Dore, xxxii. 27. Neal 
 V. Paine, xxxv. 158. Waterhouse v. Cousins, XL. 333. Pike v. Herri- 
 man, xxxix. 62. 
 
 2. The citation need not mention the date of the judgment, or date of the 
 execution. Band v. Tohie, xxxii. 450. 
 
 58 
 
458 POOR DEBTOR. 
 
 3. Where the citation is directed to the creditor individually, and not as 
 administrator, but his representative character sufficiently appears in the ap- 
 plication which is annexed to and referred to in the citation, it is sufficient. 
 Band V. Tohie, xxxii. 450. 
 
 4. The application must be made in ■writing and signed by the debtor be- 
 fore being served. Neal v. Paine, xxxv. 158. 
 
 (b) Justices, and their selection. 
 
 5. It was the duty of the creditor selecting a justice, under R. S. of 1841, 
 c. 148, § 46, as well as under the Act of 1848, c. 85, § 1, to procure the 
 attendance of the justice, selected by him, at the time and place appointed 
 in the citation for the disclosure. Stanley v. Reed, xxviii. 458. 
 
 6. Where " there were two citations by the same debtors to the same 
 creditor on different bonds made at the same time and returnable at the same 
 time ;" and the minutes of the justices state that the plaintiff's attorney 
 appointed "one of the justices to act on each citation;" and where each 
 citation contained a notice to the creditor, that aU the debtors were to dis- 
 close at the same time; — Held, that such justice was authorized to act 
 upon all the cases named in it, and to do every thing respecting it, which the 
 law required. Chamberlain v. Sands, xxvii. 458. 
 
 7. Under R. S. of 1841, c. 148, the debtor may select one of the justices, 
 at any time after the citation has been prepared and before the tribunal has 
 been organized. Chamberlain v. SandiS, xxtii. 458. 
 
 8. If the record shows that two justices, duly selected, " are unable to 
 agree as to the sufficiency of the notice," and " do not agree upon the selec- 
 tion of the third justice," and thereupon an officer makes the selection ; this 
 is sufficient to justify such third selection. Moody v. Clark, xxvii. 551. 
 
 9. When the third justice has been legally called in to act by reason of 
 the disagreement of the others, he should act until the final decision is made. 
 Moody V. Clark, xxvii. 551. 
 
 10. If a person, who is a constable, appoint one of the justices, the pro- 
 ceedings wUl be invalid, unless it be shown that he made the appointment as 
 constable. And this is provable by parol. Gillighan v. Spiller, xxix. 107. 
 
 11. Under the statute of 1844, c. 88, an appointment of a justice may be 
 made by a constable of the town in which the disclosure is to be made, and 
 in which the debtor is present, although neither of the parties reside there, 
 and although the execution be not directed to a constable, if the damages 
 therein recovered are less than $100. Worthen v. Hanson, xxx. 101. 
 
 12. A person, who is uncle to both creditor and debtor, is disqualified from 
 acting as a magistrate in a poor debtor's disclosure, except by consent. Bard 
 V. Wood, xxx. 155. 
 
 13. So is a person who is father to one of the parties. Bdker v. Garleton, 
 XXXII. 335. 
 
 14. The debtor, whose residence was in one of two adjoining towns, hav- 
 ing been arrested upon an execution, by a constable of the same to^vn : — 
 Held, that the appointment of a justice resident in the adjoining town might 
 be made by a constable of that town, although the disclosure was to be had 
 in the first. Daggett v. Bakeman, xxxiii. 382. 
 
 15. A surety upon a poor debtor's bond is incompetent to hear the dis- 
 closureas one of the justices. Winsor v. Clark, xxxti. 110. 
 
POOE DEBTOR. 459 
 
 (c) Examination and proceedings, 
 
 16. If the debtor discloses a note against another, and adds,— -"it is of 
 little or no value, and I hereby offer to assign the same to the creditor, if he 
 deems it to be of any value," the creditor is under no obligation to accept it. 
 The debtor is not made the judge of its value ; others are to be selected 
 under the statute. Call v. Barker, xxvir. 97. 
 
 17. If the justices adjudged property disclosed not subject to the creditor's 
 lien ; or omitted to do that which was required in order to make it available 
 to the creditor, when, by the disclosure, it was clearly liable to be taken on 
 execution, such adjudication is not conclusive, but is subject to revision in a 
 suit upon the bond. Butman v. Holbrooh, xxtii. 419. Jewett v. Bines, 
 XXXIX. 9. 
 
 18. If there be no agreement between the creditor and debtor to have the 
 value of demands disclosed applied in discharge of the debt, the demand 
 should be disposed of according to the 148th chapter of K. S. of 1841, § 29. 
 Gall V. Barker, xxvii. 97. 
 
 19. If the creditor, or his attorney, does not lead the debtor or the justices 
 into an illegal course of proceeding, but merely sits in silence, the rights of 
 the creditor cannot be considered as waived or forfeited. Call v. Barker, 
 XXVII. 97. 
 
 20. The justices are not authorized, by c. 148, § 31, to make out a certifi- 
 cate of discharge, until the property disclosed by the debtor, being choses in 
 action, has been disposed of or secured according to the statute. And if the 
 oath be administered without such disposal, it can furnish no defence. Call 
 V. Barker, xxvii. 97. Wingate v. Leeman, xxtii. 174. 
 
 21. Justices appointed to hear a disclosure under R. S. of 1841, c. 148, 
 have no authority to act as appraisers of the property disclosed. Wingate v. 
 Leeman, xxvii. 174. 
 
 22. Where the justices had been duly selected by the parties, and were at 
 the place designated, " within the time mentioned in the citation ;" and one 
 of three debtors was also there, and the creditor's attorney, the justices have 
 jurisdiction, and may adjourn to a different hour of the same day, and take 
 the disclosures and administer the oath to all the debtors. Chamberlain v. 
 Sands, xxvii. 458. 
 
 23. Although two of the debtors did not personally appear until the ad- 
 journment, that fact did not take from the justices their jurisdiction, nor au- 
 thorize the creditor's attorney to withdraw the authority vested in one of the 
 justices by his appointment. Chamberlain v. Sands, xxvii. 458. 
 
 24. The provisions of § 27, c. 148 of R. S. of 1841, are merely directory, 
 and a compliance with them need not appear of record. Clement v. Wyman, 
 XXXI. 50. 
 
 25. The provisions of section 29, requiring property disclosed to be " set off," 
 is required, only when the debtor discloses more than enough to satisfy the 
 creditor. Clement v. Wyman, xxxi. 50. 
 
 26. Sect. 33, requiring the justices to give a certificate of the real estate 
 disclosed, applies only when there is some person present, at the hearing, 
 authorized to receive it, or application is subsequently made for it. Clement 
 V. Wyman, xxxi. 50. 
 
 27. In a disclosure, no inquiries as to his property or his disposition of it, 
 prior to the contraction of the debt on which he is disclosing, are pertinent or 
 allowable. Ledden v. Hanson, xxxix. 355. 
 
460 POOR DEBTOE. 
 
 28. Whether the facts stated in the disclosure are true, or consistent with 
 the oath, are matters entirely within the jurisdiction of the magistrates, and 
 cannot be revised by this Court. Ledden v. Hanson, xxxix. 355. 
 
 29. There is no limit, during the examination, beyond which the creditor 
 cannot proceed to reduce to writing the interrogatories and answers, where no 
 objection is interposed, but the request is granted. Jewett v. Bines, xxxix. 9. 
 
 30. The proceedings of magistrates in taking a disclosure may become 
 invalid on account of fraud ; but evidence that they knew that the judgment 
 creditor was dead is not sufficient to show that they acted fraudulently. 
 Waterhoiise v. Cousins, xi. 333. 
 
 (d) Appraisal and assignment of property disclosed. 
 
 31. The term "accounts," in § 29 of c. 148 of R. S. of 1841, means such 
 claims as the debtor might have against other persons which were the proper 
 subjects of charge as book debts, and for the pa3Tnent of which no written 
 contract or security had been taken ; and the terms " notes, bonds or other 
 contracts," include all other securities and evidences of debts due. Bobinson 
 V. Barker, xxtiii. 310. 
 
 32. That could not properly be denominated an account, upon which 
 nothing was due. Bohinson v. Barker, xxviii. 310. 
 
 33. When the debtor discloses accounts or claims to a considerable amount, 
 and states that they have not been settled; that he does not know their 
 amount, or the amount of the counter claims ; but that he thinks there is 
 nothing due to him ; he must have them appraised according to the statute. 
 Bolinson v. Barker, xxtiii. 310. Fessenden v. Ghesley, xxix. 368. Bach- 
 elder v. Sanborn, xxxit. 230. Patten v. Kelley, xxxTiii. 215. 
 
 34. The assignment, provided for in § 29 of c. 148, must not be qualified 
 by conditions not required by the statute. Patten v. Kelley, xxxvm. 215. 
 
 (e) Becord and certificate of discharge, and its effect. 
 
 35. The certificate of justices in a disclosure of a poor debtor, that he 
 " caused the creditor to be notified according to law," is conclusive. Baker 
 V. Holmes, xxvii. 153. 
 
 36. The discharge will not be defeated by a mistake, honestly made, in the 
 quantity of one of the items of property disclosed, provided he delivers all 
 there was of it for the benefit of the creditor. Collins v. Lambert, xxx. 185. 
 
 37. A certificate of the justices, that they had seasonably administered the 
 poor debtor's oath, specifying the mode of their appointments and proceedings, 
 and showing that the same were in compliance with the statutes, unless in- 
 validated, is a bar to an action upon the relief bond. Ayer v. Fowler, xxx. 
 347. 
 
 38. A certificate of the oath administered to a poor debtor by two justices 
 of the peace and quorum, stating that the service of the citation was made 
 upon the attorney of record of the creditors, is not invalidated by another 
 statement therein, reciting that A. B. was one of the creditors, when in fact 
 he was not. And such certificate is conclusive, unless its effect be destroyed 
 by an agreed statement of facts, or by a voluntary admission of testimony 
 which might have been excluded. Clement v. Wyman, xxxi. 50. 
 
 39. A certificate of discharge is not good, unless it specify the date of the 
 
POOK DEBTOR. 461 
 
 execution and the amount of the judgment on which it was issued. Hathaway 
 V. Stone, XXXIII. 500. 
 
 40. Neither is the record of the proceedings of the justices sufficient proof 
 of the .performance of the conditions of a relief bond, unless it specify the 
 same facts. Hathaway v. Stone, xxxiii. 500. 
 
 41. A certificate of discharge furnishes prima facie evidence that the justi- 
 ces were duly selected and qualified to act in granting the certificate. Bach- 
 elder V. Sanborn, xxxiv. 230. 
 
 42. The record of the justices, as to hearing the disclosure of, and admin- 
 istering the oath to a poor debtor, is not afiected by the granting merely of a 
 writ of certiorari to bring it before the Court. Clark v. Metcalf, xxxviii. 
 122. 
 
 43. A certificate of two justices, that a poor debtor made a disclosure and 
 they administered to him the oath required, on a day named, and that such 
 hearing before them was in pursuance of a previous adjournment, without 
 certifying any time from which such adjournment was had, is invalid. Bowher 
 V. Porter, xxxix. 504. 
 
 UI. BONDS. 
 
 (a) FOEM, AND 10 WHOM GIVEN. 
 
 (b) When good at common law. 
 (o) On mesne process. 
 
 (d) Ton DiscLosuKE ON execution. 
 
 (e) When the condition is bboken, and when not. 
 
 (f) Damages. 
 
 (a) Form, and to whom, given. 
 
 44. If a poor debtor's bond be conditioned that he will " deliver himself 
 and go into close confinement," instead of that he " will deliver himself into 
 the custody of the keeper of the jail," &c., it is nevertheless a statute bond. 
 Hatch V. Lawrence, xxix. 480. 
 
 45. If the officer include doUarage in the penal sum of a relief bond, under 
 a belief that it is allowable, the bond is protected as a statute bond under 
 R. S. of 1841, c. 148, § 43. Lambard v. Sogers, xxxi. 350. 
 
 46. A " fifteen days" bond may be given for a release from arrest, whether 
 the action be in tort or assumpsit. Bichards v. Morse, xxxti. 240. 
 
 47. It is not a joint relief bond, given by all the execution debtors, as 
 principals, but it is a separate bond given by each, which, under the statute, 
 entitles to a release from arrest. Hatch v. Norris, xxxti. 419. 
 
 48. A bond, given to obtain release from an arrest, made by the collector 
 of taxes, must run to the assessors of the town and not to the inhabitants. 
 Athens V. Ware, xxxix. 345. 
 
 (b) When good at common law. 
 
 49. A joint relief bond, given by all the execution debtors, is valid at 
 common law. Hatch v. Norris, xxxvi. 419. 
 
 50. So is a relief bond, given subsequently to the Acts of 1835, c. 195, 
 and of 1836, c. 250, in which the interest due upon the debt formed no part 
 of the penal sum of the bond. Clark v. Metcalf, xxxtiii. 122. 
 
462 POOR DEBTOR. 
 
 51. In Mfllling the conditions of such a bond, the debtor is to perfonn no 
 other statute provisions in relation to poor debtors, than are recited in the 
 bond. Glarh v. Metcalf, xxxviii. 122. 
 
 52. Evidence that, on such bond, the debtor disclosed notes of hand which 
 were not appraised, is not a breach of its conditions, and is inadmissible. 
 Glarh V. Metcalf, xxxtiii. 122. 
 
 53. A bond, given to obtain release from an arrest made by the collector 
 of taxes, running to the inhabitants of a town, is good at common law. Ath- 
 ens V. Ware, xxxix. 345. 
 
 (c) On mesne process. 
 
 54. A bond, given to procure a release from an arrest on mesne process, 
 where the affidavit was made before a justice of the peace of another State, 
 is void. Branihall v. Seavey, xxviii. 45. 
 
 55. In a suit upon a bond, given to procure a release from arrest upon 
 mesne process, the penal sum may be chancered to the amount of the actual 
 damage. Sargent v. Pomroy, xxxiii. 388. 
 
 56. In a suit upon such a bond, given by force of an affidavit that the 
 debtor is about to depart and reside beyond the limits of the State, &c., in 
 the absence of fraud, it cannot be avoided by showing that the debtor was not 
 in fact about to depart and reside, &c. Marston v. Savage, xxxviii. 128. 
 
 (d) For disclosure on execution. 
 
 57. If a debtor would prevent a forfeiture of a relief bond, he must show, 
 affirmatively, a performance of- one of the conditions of his bond. GilUghan 
 V. Spiller, XXIX. 107. 
 
 58. In a suit upon such a bond, parol testimony is inadmissible for the 
 plaintiff, to show that one of the justices was appointed for the creditor, by 
 the officer, before the hour appointed for the disclosure ; or to show that the 
 debtor disclosed a note due to him, which was not appraised ; or that the 
 debtor had conveyed his property in fraud of his creditors. Ayer v. Fowler, 
 XXX. 347. 
 
 59. Under the Act of 1848, c. 85, no action can be maintained upon a 
 poor debtor's bond, if the creditor suffered no damage by the brejich of it. 
 Sanborn v. Keazer, xxx. 457. Hathaway v. Stone, xxxiii. 500. Warren 
 V. Davis, XLii. 343. 
 
 60. Though there was a breach by reason of the irregular organization of 
 the justices' court, yet, if they actually administered the oath, and the breach 
 occasioned no damage, the action must fail. Sanborn v. Keazer, xxx. 457. 
 
 61. The breach of such a bond is of no damage to the creditor, if the 
 debtor had no attachable property. Sanborn v. Keazer, xxx. 457. Hatha- 
 way V. Stone, XXXIII. 500. Bailey v. Mclntire, xxxt. 106. 
 
 62. The surety in a relief bond is discharged, if, without his consent, the 
 obligee, for a valuable consideration, extend the time of the principal to make 
 his disclosure beyond the six months. Phillips v. Bounds, xxxiii. 357. 
 
 63. A consent by the principal, at the request of the creditor, to delay the 
 making such disclosure, is a valuable consideration. And such contract made 
 with the creditor's attorney, appointed to act for him at the disclosure, is 
 sufficient. Phillips v. Bounds, xxxiii. 357. 
 
POOR DEBTOR. 463 
 
 64. So is the surety discharged, if the creditor and principal, without the 
 kno^yledge of the surety, make a contract that the bond shall be discharged, 
 if the principal, at a time beyond six months, shall pay a specified part of 
 the amount due. Thomas v. Bow, xxxiii. 390. 
 
 65. A bond, given pursuant to the statute, for a release from arrest on 
 execution, is a substitute for the custody of the debtor. Hobson v. Watson, 
 
 XXXIV. 20. 
 
 66. The property in the bond belongs to the several owners of the judg- 
 ment, and any such owner may use the name of the obligee for the collection 
 of it. Hobson v. Watson, xxxiv. 20. 
 
 67. A judgment upon such a bond operates, to the amount recovered, as a 
 discharge of the original judgment. Hobson v. Watson, xxxiv. 20. 
 
 68. In a suit brought before a justice of the peace upon a poor debtor's 
 relief bond, the plaintiff cannot recover, if it appear that, subsequent to the 
 breach, he received and indorsed upon the execution all the means of pay- 
 ment which the debtor had when the bond expired. Bailey v. Mclntire, 
 
 XXXV. 106. 
 
 69. A relief bond, given by an arrested execution debtor, does not oper- 
 ate to discharge the judgment, but is merely a collateral security. Bates v. 
 Tollman, xxxv. 274. 
 
 70. The discharge of such a bond, upon the payment of a part of the exe- 
 cution, there being no stipulation that such payment of a part should be ac- 
 cepted as a release from the whole, will not bar a suit upon the judgment to 
 recover the balance. Bates v. Tollman, xxxv. 274. 
 
 71. The discharging of such a bond, under such circumstances, given by the 
 maker of a note, will not defeat a suit against, the indorser to recover the 
 unpaid part of the judgment. Bates v. Tollman, xxxv. 274. 
 
 72. If the obligee, in a poor debtor's bond, release the sureties and dis- 
 charge the bond, by a writing in his hand, not under seal, a consideration 
 may be proved aliunde. And evidence that such obligee said the bond was 
 "settled" or "arranged," imports a valid transaction. Burrill v. Saunders, 
 
 XXXVI. 409. 
 
 73. So a waiver of the conditions in such bond by the obligee,' before the 
 time appointed for a disclosure, is effectual without a consideration. Bur- 
 rill V. Saunders, ■K.'K.s.Yi. 409. 
 
 74. Each principal obligor, in a joint bond, is a surety for his co-obligor. 
 Hatch V. Norris, xxxvi. 419. 
 
 75. After the giving of a relief bond upon an execution, no action can be 
 commenced upon the judgment, before the expiration of the six months. 
 Rollins V. Richards, xxxvi. 485. 
 
 76. In an action upon a relief bond, the creditor is not restricted to the 
 oificer's return on the execution, for proof of a demand and refusal to de- 
 liver property disclosed, but may show those facts by parol ; or correct any 
 mistake in the officer's return by parol. Torrey v. Berry, xxxvi. 589. 
 
 (e) Whan the condition is broken, and when not. 
 
 ■ 77. The disclosure of a note or account, without an appraisal and assign- 
 ment, there being no agjreement between the creditor and debtor, that the 
 same shall be applied in discharge of the debt, is a breach of the bond, 
 although they may be worthless. Call v. Barker, xxTii. 97. Wingate v. 
 
464 POOR DEBTOR. 
 
 Leeman, xxtii. 174. Robinson v. Barker, xxtiii. 310. Fessenden v. 
 Chesley, xxix. 368. Bemich v. Brown, xxxii. 458. Baldwin v. Doe, 
 xxxTi. 494. Bray v. Kelley, xxxyiii. 595. Jewett v. Bines, xxxix. 9. 
 
 78. And where a five dollar bank bill and a dollar in specie were disclosed, 
 and, before the oath was administered, he paid over three dollars to his at- 
 torney and three dollars to the justices, as their fees, which were exacted before 
 allowing the oath: — Held, that such a disposition of the property on which 
 the creditor had a lien, forfeited the bond. Butman v. Solhrook, xxvii. 419. 
 Jewett V. Bines, xxxix. 9. 
 
 79. So also when the debtor refuses to deliver to the ofiicer holding the ex- 
 ecution, within thirty days after disclosure, the property by him disclosed. 
 Hatch V. Lawrence, xxix. 480. Nash v. Bahh, xl. 126. 
 
 80. If a debtor paid in advance to the justices, for their fees, a greater sum 
 than they were allowed by law, the bond is forfeited, unless he causes his 
 claim against them for reimbursement to be appraised. Baldwin v. Doe, 
 XXXTI. 494. 
 
 81. It is no answer, in such case, that the creditor might have recovered 
 the surplus in a suit against the justices as trustees of the debtor. Baldwin 
 v. Doe, xxxvi, 494. 
 
 82. In fulfilling the conditions of a common law bond, given by a poor 
 debtor, he is to perform no other statute provisions in relation to poor debtors, 
 than are recited in the bond. Clarh v. Metcalf, xxxTlii. 122. 
 
 83. If there is any omission of acts of the debtor, or of the justices, in the 
 examination and proceedings, essential to the rights of the creditor, so that 
 he fails to be benefited by the property disclosed, upon which he has a lien, 
 a breach of the bond will take place, Jewett v. Bines, xxxix. 9. 
 
 84. The disclosure must be had before justices of the peace and quorum of 
 that county in which the arrest was made, in order to prevent a forfeiture by 
 disclosure. Houghton v. Lyford, xxxix. 267. 
 
 85. The condition in a " fifteen days bond" is sayed by a notice, within 
 fifteen days after the last day of the term at which judgment is rendered, 
 although there had been an adjournment of the Court, and a special judg- 
 ment had been entered up prior to such adjournment. Parsons v. Hatha- 
 way, XL. 132. 
 
 86. Where a creditor has done no act to excuse or waive a full compli- 
 ance with the conditions of a poor debtor's bond, within the six months, and 
 where no act of God, nor of the law, has rendered performance impossible ; 
 the debtor must satisfy the justices, within that time, that he is entitled to 
 the benefit of the oath, in order to free himself from that condition of the 
 bond. Newton v. Newhegin, xiiii. 293. 
 
 (f) Damages. 
 
 87. In a suit upon a poor debtor's bond, since the Act of 1842, c. 31, 
 has been in force, if the condition has not been performed, the damages are 
 to be assessed by the Court. Gall v. Barker, xxvii. 97. Sargent v. 
 Pomroy, xxxiii. 388. Clifford v. Eimlall, xxxix. 413. 
 
 88. If the oath be administered without a disposal of property disclosed 
 under R. S. of 1841, c. 148, § 29, it can furnish no defence; and the plain- 
 tiff is entitled to have his damages assessed according to the provisions ol 
 § 39. Gall V. Barker, xxvii. 97. 
 
POOR DEBTOR. 465 
 
 89. Where a law question, in a suit upon a poor debtor's bond, was pend- 
 ing at the time of the Act of August 11, 1848, arising upon an agreed state- 
 ment of facts, the Court will give an opportunity, if the condition of the' 
 bond be forfeited, for the defendant to have the damages estimated by the 
 jury. Bohinson v. Barker, xxviii. 310. 
 
 90. If a breach of the bond be caused by the omission to appraise a note 
 disclosed, damages, under Act of 1848, c. 85, § 2, are not limited to the 
 value of the note ; but any legal proof, showing the ability of the debtor to 
 have paid the debt or some part thereof, is admissible. Call v. Barker, 
 XXVIII. 317. 
 
 91. When a debtor, after having duly cited his creditor, shall have taken 
 the poor debtor's oath, although before magistrates not having jurisdiction, 
 the damages are to be assessed according to the Act of 1848, c. 85. Bard 
 V. Wood, XXX. 155. Sanborn v. Keazer, xxx. 457. Baker v. Carleton, 
 XXXII. 335. Winson v. Clark, xxxvi. 110. Hatch v. Norris, xxxvi. 419. 
 Houghton V. Lyford, xxxix. 267. 
 
 92. So, where the bond has been forfeited for any irregularity in the pro- 
 ceedings, and the oath has been administered. Bemick v. Brown, xxxii. 458. 
 Bachelder v. Sanborn, xxxiv. 230. Hatch v. Norris, xxxvi. 419. Bray 
 V. Kelley, xxxviii. 595. 
 
 93. Where an execution debtor has mortgaged a chose in action for the 
 security of one of his creditors, and it \Yas not of sufficient value to secure 
 such creditor, an omission to cause the same to be appraised, before taking 
 the poor debtor's oath, will be considered of no actual damage to the creditor. 
 Bemick v. Brown, xxxii. 458. 
 
 94. In chancering a bond, given to procure a release from an arrest upon 
 mesne process, in the absence of proof, the sum due on the execution wUl be 
 considered the actual damage. Sargent v. Pomroy, xxxiii. 388. 
 
 95. And that rule will not be varied by proof that the debtor was without 
 attachable property at a period several months later than the breach of the 
 bond. Sargent v. Pomroy, xxxiii. 388. 
 
 96. Where a "fifteen days" bond was given to procure a release from an 
 arrest in an action of tort, and the condition was broken, the damages will 
 he the amount of the judgment and costs of the action in tort with interest. 
 Bichards v. Morse, xxxvi. 240. 
 
 97. If a breach of a poor debtor's bond in any case is proved, when there 
 has been a disclosure, the damages are not restricted necessarily to the value 
 of the property disclosed, but the creditor is entitled to recover the real and 
 actual damage, upon aU the evidence submitted. Torrey v. Berry, xxxvi. 
 589. Nash v. Babh, XL. 126. 
 
 98. In a suit upon a bond, given under R. S. of 1841, c. 148, § 17, for a 
 breach, and a default is submitted to, the damages are to be assessed by the 
 Court, and not by the jury ; and the amount is the actual damage sustained. 
 And no allegation against the fraudulent concealment of his property, where- 
 by he would be prevented from taking the statute oath upon a disclosure, 
 wiU entitle the obligee to a hearing in damages before the jury. Clifford v. 
 Kimball, xxxix. 413. 
 
 See Costs, 16. 
 59 
 
466 PEACTICK. 
 
 rv. FALSE DISCLOSUEE. 
 
 99. Under the R. S. of 1841, c. 148, § 47, whenever a debtor shall wU- 
 fully make a false disclosure, or withhold or suppress the truth, the creditor 
 may commence a special action of the case against him, particularly alleging 
 the false oath, and fraudulent concealment of such debtor's estate, or property, 
 and, on oath, before some justice of the peace, may declare his belief of the 
 truth of the allegations in the writ and declaration ; and the justice adminis- 
 tering the oath shaU certify the same on the writ. The debtor shall therevfon 
 be held to bail. Dyer v. Burnham, xii. 89. 
 
 100. This remedy has its foundation in the statute alone. And the required 
 oath, and certificate thereof by a justice of the peace, are necessary, to make 
 the allegations in the writ and declaration effectual under the statute. Good- 
 enow, J., dissenting. Dyer v. Burnham, xxi. 89. 
 
 PRACTICE. 
 
 I. APPEARANCE. 
 
 II. AGREED STATEMENT OF FACTS, REPORT AND EXCEPTIONS. 
 m. MOTIONS AND PROCEEDINGS IN COURT BEFORE TRIAL. 
 IV. TRIAL. 
 
 I. APPEARANCE. 
 
 1 . Where an action is entered at the proper term, and the defendant ap- 
 pears by his attorney, and enters his appearance upon the docket, the Court 
 cannot take away the defendant's right to costs by ordering a misentry. 
 Whitney v. Brown, xxx. 557. 
 
 2. The name of an attorney, placed " for special purpose" under the name 
 of a respondent, in the docket entry of petition for partition, does not con- 
 stitute an " answer" or " appearance." Larrabee v. Larrabee, xxxiii. 100. 
 
 3. Where the plaintiff's appearance is seasonably called for, the attorney's 
 employment must be shown ; but, if not called for at the first term, it will be 
 presumed. Prentiss v. Kelley, xii. 436. 
 
 U. AGREED STATEMENT OF FACTS, REPORT AND EXCEPTIONS. 
 
 4. To enable the Court to decide an action upon an agreed statement of 
 facts, the statement must have been made in a case legally before the Court 
 for its decision. Parties, by their agreement, cannot present a case to'the 
 Court in a manner not authorized by law. Hatch v. Allen, xxvii. 85. 
 
 5. The report of a case by a Judge of the District Court, under Act of 
 1845, c. 172, must be drawn up with the consent of the parties thereto ; and 
 the facts thus reported are the only ones that can be disclosed to the Court, 
 not excepting the -writ and pleadings, unless made a part of the case. Lyon 
 V. Williamson, xxvii. 149. Gardiner v. Piscata. Hut. F. Ins. Co., xxxtiii. 
 439. 
 
PBACTICE. 467 
 
 6. But the stipulations of such reports must be such as to provide that 
 the final disposition of the action shall be dependent upon the decision of 
 the questions of law thus presented. Randall v. Haines, xxxi. 418. 
 
 7. Hence, a stiJ)ulation, that, if the decision of the questions of law be in 
 favor of one of the parties, the other shall have a right to a jury trial, will 
 he dismissed for irregularity. Bandall v. Haines, xxxi. 418. 
 
 .8. In a case presented upon a statement of facts, without any stipulation 
 that the decision should be influenced by the pleadings, the defendant is 
 to have judgment, if the facts would verify any plea ; and the pleadings need 
 not be examined. Moore v. Fhilhrick, xxxii. 102. 
 
 9. An action, originating before a magistrate, cannot be brought into this 
 Court by appeal from the District Court, upon an agreed statement of 
 facts, ilnglish v. Sprague, xxxii. 243. Giles v. Vigereaux, xxxil. 565. 
 
 10. The report of a case, from Nisi Priiis, will be dismissed, though signed 
 by the Judge, if it be found defective in any essential particulars. Porter v. 
 B. B. B. R. Co., XXXII. 539. 
 
 11. In a case submitted to the Court, upon facts agreed, the Court has 
 power to infer other facts, though such power be not expressly given. Spring 
 V. Davis, xxxvi. 399. 
 
 12. Where exceptions only are taken, the cause must be determined by the 
 points thus presented ; and any questions, not thus saved, cannot be consid- 
 ered. State V. Hinckley, xxxviii. 21. 
 
 13. Where a party relies upon an offer to prove that the cause of action 
 was fraudulently concealed, as an answer to a plea of limitations, such offer, 
 in the report, must clearly appear to have embraced all the requirements of 
 thte statute in that particular. The time when the fraudulent concealment 
 was discovered must not be left in doubt. Thurston v. Lowder, XL. 197. 
 
 m. MOTIONS AND PROCEEDINGS IN COURT BEFORE TRIAL. 
 
 (a) Motions in abatement. 
 
 (b) Notice to peoduoe papers. 
 
 (c) Generally. 
 
 (a) Motions in alatement. 
 
 14. In replevin, after issue joined upon the merits, it is too late to move 
 the dismissal of the action, because no replevin bond was returned. Wilson 
 V. Nichols, XXIX. 566. 
 
 15. A writ may be quashed, upon motion, for an insufficient service ; but it 
 must he made within the time allowed for pleading in abatement. Shorey v. 
 Euzzey, xxxii. 579. Nicherson v. NicJcerson, xxxvi. 417. 
 
 1,7. When there is no return day, or an erroneous one, in a writ, the omis- 
 sion or error can be taken advantage of only on plea or motion in abatement. 
 Pattee v. Lowe, xxxv. 121. 
 
 18. If a defect in mesne process be apparent upon the record, it may be 
 abated on motion. Chamlerlain v. Lake, xxxti. 388. 
 
 See Abatement. 
 
468 PEACTICE. 
 
 (b) Notice to produce papers. 
 
 19. Notice, given to the opposing counsel, to produce a ^vritte^ paper, is 
 ineffectual, if the paper be held by him merely as the counsel of some person 
 unconnected with the action on trial. Baker v. Pike, xxxiii. 213. 
 
 20. Where a party is duly notified to produce any specified books or papers, 
 and he does so, and they are examined by the party calling for them, who 
 does not introduce them, they may be used as evidence by the party produc- 
 ing them. Blake v. Buss, xxxiii. 360. 
 
 21. The 35th rule of this Court, requiring notice to produce %\Titten evidence 
 in his possession, &c., is dispensed with, by the voluntary offer of the party 
 to produce it. Dwinell v. Larrahee, xxxyiii. 464. 
 
 (c) Generally. 
 
 22. It is not contemplated, in the constitution or laws, that a party can save 
 the expense of counsel and assistance, go on, as it were, blindfold, and, if he 
 becomes the victim of his own rashness and indiscretion, make them the basis 
 of a claim to be restored to his original condition in the suit, especially where 
 he produces no evidence that he suffered any loss on the merits. Wood, v. 
 Noyes, XXVII. 230. / 
 
 23. No precise form of words is necessary in a notice to account, &c. It 
 is enough, if it be such that it cannot mislead the party, or leave him in any 
 doubt of the object of it. Wliittier v. Vaughan, xxvii. 301. 
 
 24. In local actions, if the venue be in the wrong county, and the objec- 
 tion appear on the record, it should be taken advantage of on demurrer. Af- 
 ter pleading to the merits, and after verdict, it is too late to raise the objec- 
 tion. Heath v. Whidden, xxix. 108. 
 
 25. When exceptions have been filed and allowed in the District Court, to 
 any of its preliminary, collateral or interlocutory judgments, directions or 
 opinions, the exceptions must remain among the proceedings of that Court, 
 without being entered in this Court, until the action shall have been prepared, 
 by nonsuit, default or verdict, for its final disposition in that Court. Daggett 
 V. Chase, xxix. 356. 
 
 26. A trustee disclosed, in the District Court, and filed exceptions to its 
 rulings, and entered the exceptions in this Court, before service upon the prin- 
 cipal: — Held, the exceptions must be dismissed, as prematurely entered. 
 Weils, J., dissenting. Daggett v. Chase, xxix. 356. 
 
 27. It is not strictly legal for a defendant, in a criminal suit in the District 
 Court, to file exceptions, both to the rulings of the Judge at the trial, and to 
 his rulings upon a motion in arrest of judgment. In such case, this Court 
 will hold the former exceptions to have been withdrawn or waived, and will 
 act only upon the latter. State v. Wing, xxxii. 581. 
 
 28. In a motion in arrest, it is requisite that the causes for the arresfrhe 
 specified. State v. Wing, xxxii. 581. 
 
 29. By filing a motion in the District Court for a new trial after verdict, a 
 party waives the right of excepting to the rulings of the Judge at the trial. 
 Dinsmore v. Weston, xxxiii. 256. 
 
 30. On the trial of an appeal from a justice of the peace, copies of the 
 record and of all the papers filed in the case, excepting papers used as evi- 
 dence, are required to be produced by the appellant. Holden v. Barrows, 
 XXXIX. 135. 
 
PEACTICB. 469 
 
 31. A motion to set aside the verdict as against evidence, without a full 
 report of the evidence, certified by the Judge presiding at the trial, cannot be 
 considered. Nutt v. Merrill, XL. 237. Lakeman v. Pollard, xliii. 463. 
 Taylor v. Pierce, xliii. 530. 
 
 rV. TRIAL. 
 
 (a) Loss OF PAPEKS. 
 
 (b) Eight to open and close. 
 
 (c) Depositions. 
 
 (d) Examination op witnesses. 
 
 (e) Mode of conddcting trials and aegdmenis. 
 
 (f) Issue to be tried. 
 
 (g) Agreements op parties. 
 
 (h) Ordering a nonsuit, default or other judgment. 
 (i) 'Power of the Court to direct the course of trial. 
 (j) Instructions to the jury. 
 (k) Assessment op damages. 
 (1) Rules of court. 
 (m) Generally. 
 
 (a) Loss of papers. 
 
 32. A conveyance of land cannot be proved by parol evidence of the con- 
 tents of a lost paper, unless it be proved that the paper was a deed legally 
 executed. Dunlap v. Olidden, xxxi. 510. 
 
 (b) Bight to open and close. 
 
 33. On an appeal from a decree of the Judge of Probate, the right in this 
 court to open and close belongs to the appellant. Deering v. Adams, xxxiv. 
 41. 
 
 (c) Depositions. 
 
 34. Depositions taken out of the State, by persons duly authorized, may be 
 admitted or rejected, at the discretion of the Court, notwithstanding any irreg- 
 ularity in the taking of them. Wight v. Stiles, xxix. 164. Glarh v. Pishon, 
 XXXI. 503. George v. Nichols, xxxii. 179. Freeland v. Prince, xli. 105. 
 
 See Deposition. 
 
 (d) Examination of witnesses. 
 
 85. In order to discredit an opposing witness, by proving that he had 
 made declarations in conflict with his testimony, it is not requisite that he 
 should be previously interrogated as to such declarations. Wilkins v. Bab- 
 lershall, xxxii. 184. 
 
 36. The objection to the competency of a witness, on the ground of inter- 
 est, must be taken, if known, before the testimony is given. Bumsey v. 
 Bragg, xxxv. 116. Stuart v. Lake, xxxiii. 87. 
 
 37. In such case, it is too late to interpose the objection upon a recall of 
 the witness to testify further. Bumsey v. Bragg, xxxv. 116. 
 
470 PRACTICE. 
 
 38. A question to a witness, in cross-examination, may be precluded, if its 
 relevancy to the issue be not made known to the Court. Bumsey v. Bragg, 
 XXXT. 116. 
 
 39. If, during a trial, evidence is admitted against the objections of one of 
 the parties, and, subsequently, the cause is left to the determination of the 
 presiding Judge, such objections must be considered as waived. Hersey v. 
 Verrill, xxxix. 271. 
 
 40. The party objecting to the competency of a witness is limited to those 
 objections only which were presented at the trial. Bunher v. Gilmore, xi. 88, 
 
 (e) Mode of conducting trials and arguments. 
 
 41. Counsel will not be permitted to argue to the jury, that the note before 
 them was payable, according to the agreement of the maker, at a different 
 place than is indicated by the note itself. Pierce v. Whitney, xxix. 188. 
 
 42. The judge has the right to direct in what stage of the case a party 
 shall introduce his testimony ; and to enforce a notice upon him, that if he 
 stop, he wiU. be precluded from afterwards presenting further evidence of a 
 cumulative character. Dane v. Treat, xxxt. 198. 
 
 43. But, unless such notice be given, he may introduce cumulative evidence 
 in any subsequent stage of the case, though having once stopped. Dane v. 
 Treat, xxxt. 198. Moore v. Holland, xxxti. 14. 
 
 44. If a person, on trial for an alleged offence, offer no evidence of his good 
 character, it wiE not authorize counsel to argue to the jury against his general 
 good character. State v. Upham, xxxviii. 261. 
 
 (f) Issue to he tried'. 
 
 45. If, after a question of law has been presented on report, a motion he 
 made to amend the pleadings, for the purpose of introducing a new matter of 
 defence, it will not be granted, if the proposed defence would not be a valid 
 one. Hardy v. Nelson, xxvii. 525. 
 
 46. Questions raised by pleading, and issues taken thereupon, followed by 
 a verdict and judgment, cannot be agitated, in another suit between the same 
 parties or their privies, concerning the same subject matter. Hohls v. Parker, 
 
 XXXI, 143. 
 
 (g) Agreements of parties. 
 
 47. An agreement under seal, to withdraw an action from the court, is not 
 rescindable by one of the parties alone. Hutchings v. Buch, xxxii. 277. 
 
 48. Where, in pursuance of such an agreement, the entry of " neither 
 party" has been made, the suit is discontinued, and the jurisdiction of the 
 Court at an end. Hutchings v. BucTc, xxxii. 277. 
 
 49. Though the same agreement also contains a submission of the action, 
 and the referee afterwards dies, before having acted upon the matter, still 
 there is no authority in the Court to restore the action. Hutchings v. Buck, 
 
 XXXII. 277. 
 
 50. A co-defendant maybe cited anew, and proceeded against, although 
 the suit had been previously discontinued as to him, on an agreement for a 
 valuable consideration. Drake v. Bogers, xxxii. 524. 
 
PBACTICB. 471 
 
 51. It is not competent for another defendant to object to such a proceed- 
 ing. Brake v. Bogers, xxxii. 524. 
 
 52. A discontinuance does not of itself discharge the debt sued for. Drake 
 V. Bogers, xxxii. 524. 
 
 53. The Act of 1852, c. 246, § 8, for the disposition of " all the questions 
 of law arising on reports of evidence," has reference only to cases submitted 
 on the evidence, by agreement of the parties, to the decision of the Court, 
 without being passed upon by the jury. Palmer v. Pinkham, xxxvii. 
 252. 
 
 (h) Ordering a nonsuit or default, or other judgment. 
 
 54. In directing a nonsuit, the Court may consider the testimony drawn 
 out in the cross-examination of the plaintiff's witnesses, as .well as that pre- 
 sented in chief. Eastman v. Howard, xxx. 58. 
 
 55. Although exceptions from the District Court may have been sustained, 
 yet, if it appear that there are no facts in the case to be settled by the jury, 
 such final judgment may be entered by this Court as the principles of law 
 require. Waldo v. Moore, xxxiii. 511. 
 
 56. After evidence has been introduced by both parties, a nonsuit cannot 
 rightfully be ordered, except by consent. Lyon v. Sibley, xxxii. 576. 
 Emerson v. Joy, xxxiv. 347. 
 
 57. Where a plaintiff has examined one of his witnesses solely to prove 
 the execution of papers used on the trial, an examination of him by the 
 defendant on other and distinct matters, immaterial to the issue, will not 
 prevent the Judge from ordering a nonsuit. Frye v. Gragg, xxxv. 29. 
 
 58. A case marked " law," on the county docket, should be transferred to 
 the next law term ; and, if not done so, the Judge afterwards presiding at the 
 county court may enter a nonsuit, default or judgment on the verdict, though 
 it is suggested that the omission occurred through mistake or inadvertence. 
 Farrin v. K. & P. B. B. Go., xxxvi. 34. 
 
 See NoKSTJiT. 
 
 (i) Power of the court to direct the course of trial. 
 
 59. Where the writ alleges the indebtment of the defendant to be according 
 to the account annexed, and for services performed for defendant, at his re- 
 quest, and the account annexed is " for your proportion of costs and expenses 
 of suit W. V. N.," the plaintiff may recover under that count for the service 
 of the writ. And, although the plaintiff omitted to state such a claim in his 
 opening, it is within the discretionary power of the Court to allow him to 
 claim it, where the writ and return have been used in the trial, even after the 
 evidence is all out, and defendant's counsel is about addressing the jury. 
 Nutt V. Merrill, XL. 237. 
 
 60. It is not competent for a Judge at Nisi Prius to order the evidence to 
 be reported, or to order the parties to agree upon a statement of facts. If 
 the parties cannot agree to raise questions of law, the cause must be heard 
 and determined at Nisi Prius, and the party aggrieved may allege his excep- 
 tions. Baher v. Johnson, xli. 15. 
 
 61. It is within the discretion of the presiding Judge to grant delay, on 
 the acceptance of the report of referees. Smith v. Gorman, xxi. 405. 
 
472 PRACTICE. 
 
 ( j) Instructions to the jury, and sending them out. 
 
 62. A party has no right to request instructions upon the effect a por- 
 tion of the evidence introduced should or might have upon the minds of the 
 jurors, when examined separately from the other evidence applicable to the 
 same point. White v. Jordan, xxvii. 370. 
 
 63. The law having been stated to the jury, they may in all cases judge 
 of the reasonableness of charges made in an account. When there is proof of 
 an agreed price or compensation, or of an usage which might affect it, or 
 from which an agreement might be inferred, it would not be correct to au- 
 thorize them to judge of the reasonableness of the charges, irrespective of 
 such agreement or usage. Codman \. Armstrong, xxviii, 91. 
 
 64. If part of a requested instruction be correct, and a part en'one- 
 ous, the whole request may be declined. Thomaston v. Warren, xxviii. 
 289. Atkinson y. Snow, xxx. 364. Bryant v. Crosby, xi. 9. 
 
 65. An omission of the presiding Judge to charge the jury in relation to 
 certain principles, not brought to his consideration, and no request being 
 made for such instruction, forms no ground of exception. Earpswell v. 
 Fhipshurg, xxix. 313. State v. Knight, xliii. 11. 
 
 66. It is not erroneous for the presiding Judge to instruct the jury upon a 
 supposed case wherein actionable words might be spoken with propriety, and, 
 to prevent misapprehension, remark that the supposed case was not intended 
 to be represented as the one before them. Taylor v. Robinson, xxix. 323. 
 
 67. Where the presiding Judge instructs the jury appropriately as to the 
 facts, and correctly as to the law, though not in terms as requested, there is 
 no cause for exception. State v.' Barnes, xxix. 561. Porter v. Sevey, 
 XLIII. 519. 
 
 68. AVhere the ruling of the Judge is, in itself, correct, it will be sustained, 
 although the reason he gave for it be incorrect. Prescott v. Hohbs, xxx. 345. 
 
 69. Where evidence was admitted upon condition that the party introduc- 
 ing it would prove another material and connected fact, which he was unable 
 to prove i—^-HeM, that the jury should disregard such evidence; and, though 
 they were not expressly instructed so to do, yet, as the proceedings were had 
 in their presence, the Court will presume they did disregard it. Bangor v. 
 Brunswick, xxx. 398. 
 
 70. In charging the jury, it is within the province of the Judge to arrange 
 and comment upon the evidence, though it may have the appearance of an 
 argument. Emery v. Estes, xxxi. 155. 
 
 71. Where the jury returns into court without permission, the Judge's 
 direction that they withdraw to their room, is not a sending them out, within 
 the meaning of the statute. Emery v. Estes, xxxi. 155. 
 
 72. Though one witness testify positively, to a fact, and another of equal 
 credibility contradict it, the jury are not to be instructed, as jnatter of law, 
 that the fact is not proved. Johnson v. Whidden, xxxii. 230. Sweetser v. 
 Lowell, xxxiii. 446. 
 
 73. The contending by counsel, in argument to the jury, that a certain 
 position is a principle of law, does not of itself require the Judge to instruct 
 the jury upon that point. Tenney v. Butler, xxxii. 269. State v. Straw, 
 xxxiii. 554. Bird v. Bird, xi. 398. 
 
 74. In. the charge to the jury, the Judge's remark, that, in relation to a 
 position taken by one of the parties, he had not perceived any evidence in 
 
PRACTICE. 473 
 
 support of that position, but still referring it to the jury to settle the case 
 upon the evidence, is not such an interference, with the province of the jury, 
 as to sustain exceptions. Cunningham v. Batchelder, xxxii. 316. 
 
 75. A request, by a defendant in a criminal pi:osecution, that the Court 
 would instruct the jury upon a legal point, relied on in defence, precludes 
 him from objecting to the right of the Court to instrtict the jury, though un- 
 favorably to him, upon that point. State v. Madison, xxxiii. 267. 
 
 76. Whether it is the right of a party, after the jury has once retired with 
 the cause, to request new instructions, quere. Weeks v. Elliott, xxxiii. 
 488. 
 
 77. A Judge cannot be required to instruct the jury that they may infer 
 any matter of fact involved in the issue, from a selected part of the evidence. 
 Johnson v. Knowlton, xxxv. 467. 
 
 78. A jury, after having sealed up their verdict and separated, cannot be 
 sent back to reconsider it, except by consent of parties. True v. Plumley, 
 xxxvi. 466. 
 
 79. When a document is read to a jury for a specific, lawful purpose, 
 which is also evidence of facts not admissible, it is the duty of the Court to 
 instruct them to disregard every other consideration than the one for which it 
 was admitted. State v. Lull, xxxvii. 246. 
 
 80. Instructions to the jury, when matter of exception in law, may properly 
 be considered in connection with the evidence reported, bearing upon the 
 point on which the instructions were given. Boohier v. Boohier, xxxix. 406. 
 
 81. A request for an instruction, that has no application to the issue may 
 be refused. State v. Hall, xxxix. 107. Treat v. Lord, xiii. 552. Hun- 
 neioell v. Eohart, xlii. 565. State v. Knight, xliii. 11. 
 
 82. Without proof tending to establish that the sales of liquor were by the 
 importer, or of imported liquors in the original packages, the Judge may with- 
 hold instructions as to the law in that ' contingency. State v. Bohinson, 
 XXXIX. 150. 
 
 83. When, to support his claim before the jury, the plaintiff is sworn and 
 produces his book and reads the entry of his charges therein, and testifies 
 that the articles were delivered to the defendant, without objection ; the 
 Court are not authorized to instruct the jury that the evidence is insufficient. 
 Gooh V. Brown, xxxix. 443. 
 
 84. A request for instructions, which assumes a ground of defence to the suit 
 which is not taken, may be refused. FranJdin Bank v. Cooper, xxxix. 
 542. 
 
 85. Thus, a request for an instruction, that defendant is not permitted to 
 avoid his liability by proof that he did not understand the import of the bond, 
 unless he was induced by the plaintifis or their agents to suppose it was 
 diiferent from what it really was, may be refused, when the defence is, not 
 that he did not know the import of the bond, but that facts material to the 
 risk were concealed from him. Franklin Bank v. Cooper, xxxix. 542. 
 
 86. Instructions, though true as abstract propositions, which have no 
 foundation in the evidence in the case, but which may have had a tendency to 
 mislead the jury, cannot be sustained. Shepley, C. J., non-concurring., Hop- 
 kins V. Fowler, xxxix. 568, Weston v. Higgins, xl. 102. 
 
 87. In instructing the jury as to the necessity under which a sale of a vessel 
 and cargo may be effected by the master, no term to intensify the word 
 "necessity" is necessary. Prince v. Ocean Ins. Co., xl. 481. 
 
 60 
 
474 PRACTICE. 
 
 88. The maxim ^'■fahus in uno,falsus in omnibus^' is qualified by circum- 
 stances. Parsons v. Huff, xli. 410. Merrill v. Whitefield, xli. 414. 
 
 89. Instructions, asking the consideration of evidence introduced without 
 ohjection, are no cause for exceptions, though inadmissible. Brown v. Moran, 
 XLii. 44. 
 
 90. A refusal to instruct the jury, that it was not competent for the plain- 
 tiif to have recovered, in assumpsit, for the articles declared for in the present 
 suit, (trespass,) is not erroneous, although it might have been proper in the 
 action of assumpsit. Brown v. Moran, xlii. 44. 
 
 91. The report of commissioners described certain estate set off, as "the 
 water privilege now occupied by the saw-mill F. : — Held, that an instruction, 
 that, by the partition, the owners of the F. mill had no right to any more 
 water than was necessary to the full enjoyment thereof, with all its machinery, 
 at the time of the partition, was too restricted. Monroe v. Gales, xlii. 178. 
 
 92. Rulings, allowing evidence of damages, sustained by the defendant for 
 a partial non-fulfillment of the contract on the part of the plaintiff, to go to 
 the jury to prevent a recovery, pro tanto, on the note, without any limitation 
 as to whether the consideration of the note grew out of that contract, were 
 erroneous. Hall v. Tribou, xlii. 192. 
 
 94. The fact of notice having been admitted, in an action against a town 
 for a defect in a highway, that question should not be . submitted to the jury. 
 Larrabee v. Searsport, xlii. 202. 
 
 95. Evidence, tending to show that a certain " stake" is the monument 
 referred to in a deed, is admissible ; but from the facts thus proved, and in the 
 absence of all counter proof, instructions, that there was any presumption of 
 law that it was such monument, are erroneous. Robinson v. White, xlii. 209. 
 
 96. The presiding Judge is not bound to give an instruction in the language 
 of a request nor as a requested instruction. Anderson v. Bath, xlii. 346. 
 Treat v. Lord, xlii. 552. State v. Knight, xliii. 11. 
 
 97. The Judge may properly refuse to give a requested instruction involving 
 no question of law. State v. Knight, xliii. 11. 
 
 98. An instruction, that if the jury should find, that by the description of 
 the note in a notice to the indorsers, of its dishonor, the indorsers might 
 reasonably be presumed to know it referred to the note in suit, they might 
 find the notice to be sufficient ; is correct. Waterman v. Vose, xliii. 504. 
 
 See Paupes, 50. 
 
 (k) Assessment of damages. 
 
 99. In a case brought from the District Court by exceptions, this Court 
 cannot authorize the remittitur of any excess of interest allowed by the jury 
 in the verdict. Greenleaf v. Hill, xxx. 165. 
 
 100. In replevin, submitted on questioiis of law, without any stipulation 
 as to damages, the Court, at another term after judgment of nonsuit and 
 return, has no power to assess the defendant's damages or to submit that 
 question to a jury. Dillingham v. Smith, xxxii. 182. 
 
 101. Where a party seeks to recover payment for articles delivered, under a 
 special contract which he has not fully performed, the damages suffered by 
 reason of such breach may legally be deducted in the same suit. Rogers v. 
 Humphrey, xxxix. 382. 
 
 See Damages. 
 
PEESCEIPTION. 475 
 
 (1) Bules of court. 
 
 102. The Supreme Judicial Court had authority to make and establish the 
 34th Rule of practice, adopted in 1822, respecting the addition of office 
 copies. Sellars v. Carpenter, xxvii. 497. 
 
 103. That Rule does not justify the introduction of any papers touching 
 the realty, except deeds. Dunlap v. GUdden, xxxr. 510. - 
 
 104. The 33d Rule is neither repugnant to law, nor against sound policy, 
 and may rightfully be enforced. Libly v. Cowan, xxxvi. 264. 
 
 105. The 9th Rule, requiring specifications to be filed, &c., in accordance 
 with the Act of 1855, c. 174 ; that the defence shall in all cases be confined 
 to the grounds therein set forth ; and that all the allegations in the writ and 
 declaration, not therein specifically deaied, shall be regarded as admitted for 
 the purposes of the trial, is not repugnant to R. S. of 1841, c. 115, § 18, abol- 
 ishing special pleading, but is in strict harmony therewith and adapted to 
 give it force and effect. Day v. Frye, xli. 326. 
 
 (m) Generally. 
 
 106. By a default, the declaration is to be taken as true, and regarded the 
 same as if a verdict had been taken. Heath v. WMdden, xxix. 108. 
 
 107. After the nonsuit of an action, a second suit, for the same cause, may 
 be stayed by the Court, until the defendant's cost in the former action be 
 paid ; notwithstanding the second suit is brought by an assignee, who, when 
 purchasing the demand, had no knowledge that it had previously been put in 
 suit. Warren v. JSbmested, xxxii. 36'. 
 
 108. The 7th section of the Act of 1846, for restricting the sale of intoxicat- 
 ing liquors, requires the defendant appellant to " advance the jury fee, and all 
 other fees that may arise after the appeal." By the " other fees," are meant 
 only such fees as arise for the services of the clerk of the Court. Levant v. 
 Varney, xxxii. 180. 
 
 109. By sufiering default, the defendant does not admit the jurisdiction of 
 the Court, nor the correctness of the proceedings in the suit. Jewell v. 
 Brown, xxxiil. 250. 
 
 110. It is not irregular to refuse a motion for leave to summon in additional 
 joint promisors, while an issue is pending upon a plea in abatement for the 
 non-joinder. Mahan v. Myers, xxxit. 34. 
 
 111. Where the parties agree that the case shall be decided upon the de- 
 claration and the pleadings, the Court must determine it upon the actual 
 pleadings as they appear in the case. Gray v. Kirnball, XLil. 299. 
 
 112. When an action is properly pending, the Court cannot dismiss it, on 
 motion, because the plaintiff has not tendered a bond of indemnity. Moore 
 V. Fall, XLii. 450. 
 
 PRESCRIPTION. 
 
 1. A right to fiow lands for the working of a mill may be acquired by pre- 
 scription, although the flowing was occasioned by different dams, owned by 
 different persons, and for different purposes. Davis v. Brigham, xxix. 391. 
 
476 PRESCRIPTION. 
 
 2. Prescription rests upon the presumption of a grant which has been lost. 
 Davis V. Brigham, xxix. 391. 
 
 3. The word " exclusive," when used with reference to the acquisition of a' 
 prescriptive right, can only mean that the enjoyment of the easement as 
 claimed, whether it be a limited or more general enjoyment, should exclude 
 others, strangers to them and to their claims, from a participation of it. Davis 
 V. Brigham, xxix. 391. 
 
 4. Though a dam may have flowed land more than twenty years, a pre- 
 scriptive right is not established, unless the occupation was by the one setting 
 it up, or some person under whom he claims. Benson v. Soule, xxxii. 39. 
 
 5. A continued occupation of land for twenty years, personally or by agent, 
 gives title to the occupant, unless such occupation has been in subserviency 
 to another's title. Goodwin v. Sawyer, xxxiii. 541. Glancey v. Houdletle, 
 XXXIX. 451. 
 
 6. A right by prescription to flow land to a given height, by means of a 
 miU-dam, cannot be sustained, unless the flowing had caused damage to the 
 owner. Wentworih v. Sanford Manuf'g Co., xxxiii. 547. 
 
 7. Whether a prescriptive right to flow land to a given height can be 
 proved, in order to reduce the damage occasioned by the dam when elevated 
 above that height, quere. Wentworth v. Sanford Manuf'g Co., xxxiii. 547. 
 
 8. A non-user of twenty years of a right, acquired by use to maintain a 
 dam, furnishes presumptive evidence of an extinction of the right by aban- 
 donment. Farrar v. Cooper, xxxiv. 394. 
 
 9. A servitude is presumed to be extinguished, when the proprietor of the 
 estate, charged with it, is permitted, for a sufiicient length of time, to man- 
 age it in such manner as to preclude the exercise of the rights arisiijg out of 
 that servitude. Farrar v. Cooper, xxxiv. 394. 
 
 10. The occupation of land twenty years, as a mill-yard for piling logs, 
 timber and boards, is sufficient evidence of title as against one who, subse- 
 quently, without title, takes the occupation of it to himself. Saco W. P. Go. 
 V. Goldihwaite, xxxv. 456. 
 
 11. In a writ of entry, adverse possession will not establish title in the 
 tenant, unless commenced twenty years before the suit. In petition for 
 partition it is otherwise. Saco W. P. Co. v. Goldthwaite, xxxv. 456. 
 
 12. No prescriptive rights can be claimed against existing statutes de- 
 fining the boundaries of towns. Ham v. Sawyer, xxxTiii. 37. 
 
 13. One claiming by possession the prescriptive right to abut his mill-dam 
 upon the opposite shore must show such possession adverse and exclusive 
 twenty years prior to the commencement of the action. Trash v. Ford, 
 XXXIX. 437. 
 
 14. Merely abutting one's mill-dam upon the opposite shore, without the 
 claim of right, may create an easement after its continuance for twenty years, 
 but wiU not divest the owner of the shore of his title. Trash v. Ford, 
 XXXIX. 437. 
 
 15. Such acts are assumed to be in submission to the title of the owner, 
 unless adverse. Trash v. Ford, xxxix. 437. 
 
 16. The rights of the public, in a navigable river, cannot be acquired or 
 lost by prescription. Knox v. Chaloner, xiii. 150. 
 
 See Easement. 
 Nuisance, 5. 
 
paEsuMPTiON. 477 
 
 PRESUMPTION. 
 
 1. When an officer of a corporation ia required to be chosen by ballot, and 
 the record does not specify the mode of his election, the legal presumption is 
 that he was chosen by ballot. Blanchard v. Dow, xxxii. 557. 
 
 2. Proof, that a person has been legally appointed to an office or place, 
 furnishes a presumption that he continues to hold it during the term prescrib- 
 ed by law, or until he has been legally discharged. Sawyer v. Knowles, 
 xxxiii. 208. 
 
 3. The lapse of twenty years furnishes a legal presumption that a debt, 
 though secured by a mortgage of land, has been paid. S%ueetser v. Lowell, 
 xxxm. 446. 
 
 4. Proof, that prohibited sales were made at the store of a trader, of arti- 
 cles belonging to him, by a clerk in his employ, does not alone create a legal 
 presumption of guilt in such trader, though having knowledge of such sales 
 and receiving the pay for the articles sold. State v. Tibhetts, xxxv. 81. 
 
 5. Such proof would authorize a jury to infer that the trader either direct- 
 ed or assented to the sales ; but would not justify the Court in deciding, as 
 matter of law, that, unless there should be some opposing proof, he would be 
 equally responsible for the sales as if made by himself. State v. Tibhetts, 
 xxxv. 81. 
 
 6. Until the expiration of twenty years from the recovery of a judgment, 
 there arises, from lapse of time, no degree of presumption that the judgment 
 has been paid. Thayer v. Mowry, xxxvi. 287. 
 
 7. If, from the payment of State taxes for a succession of years, there arises 
 a presumption that the tax of an earlier year had been paid, that presump- 
 tion may be repelled by proof. Hodgdon v. Wight, xxxvi. 326. 
 
 8. A person, proved to be insane, is presumed to continue so until the con- 
 trary appears. Weston v. Higgins, xi. 102. 
 
 9. Th« presumption of sanity continues until insanity is proved. Weston 
 T. Higgins, xi. 102. 
 
 10. Where the unlawful killing is proved, and there is nothing to explain, 
 qualify or palliate the act, the law presumes it to have been done maliciously, 
 and the onus is upon the accused to rebut the presumption. State v. Knight, 
 SXIII. 11. 
 
 11. In the trial of actions here, the common law of New York may pro- 
 perly be presumed to be similar to that of this State, in the absence of proof 
 to the contrary. Tllexan v. Wilson, xliii. 186. 
 
 12. Where parties have not entered into any express and specific contract, 
 a presumption arises that they intended to contract according to the general 
 usage, practice and understanding in relation to the subject matter. Gleason 
 V. Walsh, xiiii. 397. 
 
 See Bills, &c., 18, 32, 68, 91, 112, 179. 
 Evidence, 175 — 208. 
 Landloed and Tenant, 3. 
 
478 PRIVITY or INTEREST.— PROBATE ACCOUNT. 
 
 PRIVITY OF INTEREST. 
 
 1. In the trial of an action, the record of a former judgment between the 
 same parties or those in privity with them may be used as evidence. Glass 
 V. Nichols, XXXV. 328. 
 
 2. One who has been adjudged trustee, because holding goods under a sale 
 fraudulent as against creditors of the principal defendant, is in privity with 
 him ; and so is the officer who has attached goods by order of a plaintiff in 
 privity with him. Glass v. Nichols, xxxv. 328. 
 
 3. Hence, such officer, when sued by such a trustee for having attached 
 the goods pursuant to such order, as a privy to the attaching plaintiff, may 
 use in evidence the record of the judgment against the trustee. Glass v. 
 Nichols, xxxT. 328. 
 
 PROBABLE CAUSE. 
 See Maliciotts Pbosectjtion. 
 
 PROBATE ACCOUNT. 
 
 1. Where the decree of the Probate Court appealed from embraces only 
 the settlement and allowance of a second account of administration, with 
 no reference to the first account, or to any item in it, unless by crediting the 
 balance due on settlement ; the appellate court, on such appeal, cannot 
 reexamine and adjust the first account. Sturtevant v. Tollman, xxvii. 78. 
 
 2. But the administrator may be required, on the settlement of a second 
 account, to charge .himself with any proper items, not contained in the first ; 
 and to correct any errors found in the first account. But, when this is not 
 done, nor refused to be done in the Probate Court, it cannot be required to 
 be done on the appeal. Sturtevant v. Tallman, xxvii. 78. 
 
 3. A guardianship account may be settled by the Judge of Probate, after 
 the minority of the ward has expired. Pierce v. Irish, xxxi. 254. 
 
 4. Upon such settlement, the allowance of an item of charge by the guard- 
 ian, for his negotiable note, given to the ward for a specified sum, is to be 
 viewed, not as a decree of the Court that such sum is money still due to the 
 ward, in the hands of the guardian ; but as a payment made to the ward. 
 Pierce v. Irish, xxxi. 254. 
 
 5. Such a charge is lawfully allowed, when the Judge of Probate is satis- 
 fied it was the intention of the ward to receive the note as a payment. Pierce 
 V. Irish, XXXI. 254. 
 
 6. Where a ward, after arriving at full age, has examined the guardianship 
 account, and certified thereon its correctness and his assent to its allowance, 
 the Judge may allow the account, although no notice be given to the ward to 
 attend at the settlement. Pierce v. Irish, xxxi. 254. 
 
 See Pbobate CotrnT. 
 
PROBATE BONDS. — PEOBATE COURT. 479 
 
 PROBATE BONDS. 
 
 1. A neglect for three years to settle a guardianship account, (except in 
 certain cases,) is a breach of the bond. But if the ward examine the final 
 account, and discharge the balance, by taking a negotiable note for its amount, 
 and afterwards the account be accordingly settled in the Probate Court, the 
 damages accruing to the ward, from the breach of the bond, will be considered 
 as included in the settlement, or waived. Pierce v. Irish, xxxi. 254. 
 
 2. A suit upon an administration bond can be brought for the benefit of 
 those only who are interested in the estate. Rawson v. Piper, xxxiv. 98. 
 
 3. A creditor of an estate, who has received for his debt a negotiable note 
 against a third person, of the same amount, secured by a mortgage of land, 
 has no further interest in the estate, although the maker of the note became 
 insolvent and the mortgage was valueless. Rawson v. Piper, xxxiv. 98. 
 
 4. It is a general rule that suits upon probate bonds are not maintainable, 
 unless authorized by the Judge of Probate, or unless the amount due from the 
 obligor has been ascertained by a judgment of Court. This rule, however, 
 does not apply to suits brought by residuary legatees, whether the legacies be 
 for their own benefit, or in trust for others. Williams v. Gushing, xxxiv. 
 370. 
 
 5. A person, appointed in the place of a testamentary trustee of the resi- 
 duum of the estate who had declined, has the rights of a residuary trustee, in 
 relation to suits upon probate bonds. Williams v. Gushing, xxxiv. 370. 
 
 6. If there be a residuary trustee, the executor is to pay to him the residu- 
 ary fund. But if the executor, as such, have paid it to some person having 
 no claim to it, the Judge of Probate cannot allow such payment in settling 
 the executor's account. And a decree, making such allowance, being void, 
 will not preclude the trustee from recovering the amount of the fund in a suit 
 upon the executor's bond; Williams v. Gushing, xxxiv. 370. 
 
 7. A refusal to pay the just debts of his ward will constitute a breach of 
 the guardian's bond, and the creditor may resort to a suit upon it for in- 
 demnity. Raymond v. Sawyer, xxxtii. 406. 
 
 8. Each probate bond must be specifically approved by the Judge, to be 
 valid, including the bpnd filed for an appeal from a Judge of Probate. Matthews 
 V. Patterson, xiii. 257. 
 
 See ExEcriOB, &c., 18, 19, 22, 32, 36, 41, 42, 43, 48. 
 
 GlTABDIAN, &c., 25, 27. 
 
 Pkobate Coukt, 2. 
 
 PROBATE COURT. 
 
 1. Under R. S. of 1841, c. 105, " any person aggrieved by any order, sen- 
 tence, decree or denial of a Judge of Probate, may appeal therefrom to the 
 Supreme Court of Probate," although he was not a party to the proceedings 
 before the Probate Court. Sturtevant v. Tollman, xxvii. 78. 
 
 2. The Court of Probate can be deprived of its jurisdiction, in the settle- 
 ment of administrators' accounts, only by some proceeding which would 
 
480 PROBATE COUBT. 
 
 legally remove tlie settlement to another tribunal. Its jurisdiction remains, 
 although, the administrator had before been cited to settle his account, had 
 neglected to do so, and leave had been granted to the persons interested to 
 commence a suit upon his bond, if no suit be commenced. Sturtevant v. 
 Tollman, xxvii. 78. 
 
 3. A Judge of Probate cannot hold a Court, for the hearing of a particular 
 case, at any other time or place than those fixed by law, or under R. S. of 
 1841, c. 105, § 8 ; and any decree passed in such case wiU be void. White 
 V. Biggs, xxvir. 114. 
 
 4. If one of several persons, equally interested, should appear at the hear- 
 ing of such case, the others, not all appearing, and he, alone, should appeal, 
 still, as the Probate Court had no jurisdiction, the appeal wUl be dismissed. 
 White V. Biggs, xxtii. 114. 
 
 ■ 5. The power of the Judge of Probate does not extend to an assignment 
 of dower in lands of which the husband was not seized at the time of his 
 death ; or of lands of which the husband was so seized, when the right of 
 dower is disputed by the heirs or devisees. French v. Pratt, xxvil. 381. 
 
 6. Where the Judge refuses a license to sell real estate, to pay debts and 
 charges of administration, and an appeal is taken ; and there is no exhibition 
 in the decree, nor in the reasons for the appeal, of the evidence presented to 
 the Judge of Probate ; nor does it appear that there was satisfactory proof 
 that the services had been performed, for which the claim was made ; nor 
 that the personal property was inadequate to meet what was required, the 
 decrees must be affirmed. May all, pet'r., xxix. 474. 
 
 7. It is not within the jurisdiction of the Probate Court to decide who are 
 entitled, as legatees, under a will ; or to decree to whom, or at what time, 
 legacies or distributive shares shall be paid. The allowance to an executor, 
 for money paid to a legatee, beyond his just proportion, is no protection to 
 the executor. Smith v. Lambert, xxx. 137. 
 
 8. A decree, granting leave to a creditor of an insolvent estate to institute 
 a suit at common law, under R. S. of 1841, c. 123, § 9, is subject to the 
 right of appeal. Leighton v. Chapman, xxx. 538. 
 
 9. But the right and power to give such leave is limited to four years 
 from the time administration was granted. Leighton v. Chapman, xxx. 
 638. 
 
 10. By the statute of 1821, c. 51, the Court of Probate was empowered, 
 through the agency of commissioners, to divide the estate of an intestate 
 among his heirs at law. Dean v. Hooper, xxxi. 107; 
 
 11. If the estate were held as a tenancy in common with any other per- 
 son, the commissioners were to be authorized to make partition between the 
 heirs and such co-tenant ; but the co-tenant must have notice of the pro- 
 ceedings, prior to the decree of partition. Dean v. Hooper, xxxi. 107. 
 
 12. The omission to give such notice was not cured by the attendance of 
 the co-tenant before the commissioners. Dean v. Hooper, xxxi. 107. 
 
 13. An adjudication by the Judge of Probate, upon a matter over which 
 he has general jurisdiction, unless appealed from, is conclusive, until revers- 
 ed. Pierce v. Irish, xxxi. 254. Glarh v. Pishon, xxxi. 503. 
 
 14. The Judge of Probate of one county has no jurisdiction to grant ad- 
 ministration upon the estate of a person, whose domicil, at the time of his 
 decease, was within the State, but not within such county. Moore v. Phil- 
 irick, XXXII. 102. 
 
PROCHEIN AMI. 481 
 
 15. Such want of jurisdiction, if it appear in the same record which ex- 
 hibits the grant of administration, is decisive against the validity of the grant. 
 Moore V. PKilbrick, xxxil. 102. 
 
 16. A testamentary trustee had it in pharge, by the will, to appropriate the 
 income of the estate to the widow of the testator, as she should " require," 
 for the support of herself and children: — Held, that the Court of Probate 
 had not jurisdiction to direct what amount the trustee should appropriate for 
 such support. Littlejield v. Cole, xxxiii. 552. 
 
 17. On an appeal from a decree of the Judge of Probate, the right to open 
 and close in this Court belongs to the appellant. Deering v. Adams, xxxiv. 
 41. 
 
 18. Under E. S. of 1841, c. 105, § 25, a party is "aggrieved" only when 
 the decree opwates on his rights of property, or bears directly upon his inter- 
 est. Deering v. Adams, xxxiT. 41. 
 
 19. From a decree appointing a guardian to a minor child, the trustees of 
 a fund bequeathed for the benefit of such child have no authority to appeal. 
 Beering v. AdaTns, xxxit. 41. 
 
 20. Where a testamentary trustee of the residuum of the testator's estate 
 has declined to act in that capacity, another person may be appointed by the 
 Judge, in his stead. Williams v. Gushing, xxxiv. 370. Deering v. Adams, 
 XXXVII. 264. 
 
 21. The Probate Court has authority to make partition of real estate, many 
 years after the estate has been settled. Earl v. Rowe, xxxy. 414. 
 
 22. Where no dispute has been raised respecting the proportion, if any, 
 to which an heir or devisee is entitled, partition may be made by the Judge, 
 unless such proportion appear to him uncertain. If his opinion as to such pro- 
 portion be erroneous, the remedy is by appeal. Earl v. Rowe, xxxv. 414. 
 
 23. Under Act of 1817, c. 190, the Judge of Probate had full power to 
 make a division of real estate among the heirs. Furlong v. Soule, xxxix. 
 122. 
 
 24. Under Act of February 11, 1789, all lands levied on by the adminis- 
 trator were held to the sole use and behoof of the widow and heirs of the 
 deceased, and could only be distributed by the Judge as personal estate. 
 Furlong v. Soule, xxxix. 122. 
 
 See Appeal, 13, 14. 
 
 GtTAKDIAN AND WaED. 
 
 Heik, 9. 
 
 Phobate Accoxtnt. 
 
 Peobate Bond, 
 
 PROCHEIN AMI. 
 
 1. Aprochein ami is not necessarily one of kin, but may be "any one who 
 will undertake the infant's cause," and, according to the theory of the law, is 
 appointed by the Court. Leavitt v. Bangor, xii. 458. 
 
 2. A prochein ami is not, under our statutes, a party to the suit in such a 
 sense as to make him liable for costs. Leavitt v. Bangor, xli. 458. San- 
 lorn V. Merrill, XLi. 467. 
 
 61 
 
482 PEOPRIETORS OF LANDS.— PUBLIC LOTS. 
 
 3. Neither is he so a party as to have rendered either himself or his wife 
 incompetent witnesses, prior to the passage of the Act of 1856, c. 266. 
 Leavitt V. Bangor, xii. 458. 
 
 PROPRIETORS OF LANDS. 
 
 Where the plaintiifs organized themselves into a proprietary, and claimed 
 and exercised control over a township, making sales of the land, holding pos- 
 session of the contracts made by their agents, and of the notes given on such 
 contracts, and have received payments for the land: — Held, that the tenants, 
 holding under one who had recognized their rights, could not dispute their 
 title. Boxbury v. Huston, xxxtii. 42. 
 
 PUBLIC ACTS. 
 See Statutes, 15. 
 
 PUBLIC LOTS. 
 
 1. The fact that the lands in a town, reserved for public uses, had been 
 sold; and conveyed, could not prevent their legal location. Argyle v. Dwinel, 
 XXIX. 29. 
 
 2. If the treasurer of a town be authorized to convey lands reserved for 
 public uses, on certain conditions, under the statute, a conveyance thereof, 
 without performance of the conditions, is void ; and acts of the board of 
 trustees, performed afterwards, which might otherwise amount to a ratification 
 of the treasurer's doings, would be inoperative. Argyle v. Dwinel, xxix. 29. 
 
 3. The effect of the Act incorporating a part of the plantation of Argyle 
 into a town by the same name was to sanction the location of the public or 
 reserved lands within the plantation, and to assign to the town of Argyle the 
 benefit of those lots which had been located within its corporate bounds. 
 Argyle v. Dwinel, xxix. 29. 
 
 4. Unfinished processes, commenced by the County Commissioners, for 
 setting off public lots in unincorporated places, under the Act of 1842, were 
 defeated by the Act of 1848, transferring the care of public lots to agents, 
 &c. ; and such processes are not embraced in the clause of the latter Act, 
 " saving all actions now pending and causes of action already accrued. Go. 
 Commissioners, pefrs, xxx. 221. 
 
 5. Where, in a grant by the State, of a tovmship of land, there are reserv- 
 ed one thousand acres for public uses, according to Act of 1828, c. 393, the 
 fee does not vest in the grantees, upon any condition, limitation or trust what- 
 ever, even if no plantation should ever be established there. Dillingham v. 
 Smith, xxx. 370. 
 
PUBLIC LOTS. 483 
 
 6. The State has constituted itself the trustee, for the future town or 
 jplantation. Dillingham v. Smith, xxx. 370. 
 
 7. Where the County Commissioners set out the reserved land by an actual 
 location upon the earth, duly entered in the records of the District Court, the 
 boundaries, thus fixed, are conclusive upon the public, whether they include 
 one thousand acres or less ; and the grantees cannot object that the land set 
 out does not contain one thousand acres ; for they may safely convey and 
 warrant the adjoining lands, by such boundaries. Neither is the location in- 
 validated by being taken in two lots, instead of one. Dillingham v. Smith, 
 xxx. 370. 
 
 8. Where lumber had been cut upon the reserved lots, thus set out, and 
 had been seized and sold by persons claiming to act for the public, it is com- 
 petent for the purchaser to prove, by parol, that such persons were the acting 
 County Commissioners. Dillingham v. Smith, xxx. 370. 
 
 9. When a grant of land, made jointly by Maine and Massachusetts, con- 
 tains a reservation for the support of schools and of public worship within 
 the tract, the right and duty of protecting the reserved part against trespassers 
 belong exclusively to this State, until the beneficiaries shall come into being. 
 Hammond v. Morrell, xxxiii. 300. 
 
 10. The fee of one-half of such reserved land is held by the State in trust. 
 Hammond v. Morrell, xxxiii. 300. 
 
 11. The State has the right of causing the reserved part of the tract to be 
 severed from the residue, by a course of prescribed proceedings, and to be 
 set ofi' into lots, for the purposes specified in the grant. Hammond v. Mor- 
 rell, XXXIII. 300. 
 
 12. By the prescribed notice given to the grantees of the residue, and by 
 the opportunity given them to be heard in the proceedings for the separation, 
 they are bound by the proceedings in the process. Hammond v. Morrell, 
 XXXIII. 300. 
 
 13. It is not competent for such grantees, after the separation of the lots, 
 to object that Massachusetts was not a party to the process. Hammond v. 
 Morrell, xxxiii. 300. 
 
 14i The lots, when thus set off, are deemed to be in the legal possession of 
 the State, until vested in those for whose benefit they were reserved. Ham- 
 mond V. Morrell, xxxiii. 300. 
 
 15. In action, brought by the State, for trespass upon such lots, the whole 
 damage may be recovered ; and it is no defence, in whole or in part, that 
 Massachusetts has not joined in the suit, or interposed any claim. Hammond 
 V. Morrell, xxxiii. 300. 
 
 16. Of land reserved and set ofi' for the gospel ministry, &c., in townships 
 not yet incorporated, the county in which it is situated, by the Act of 1842, 
 holds the place of trustee to the parties for whose benefit the reservation was 
 made. Washington v. Brown, xxxiii. 442. 
 
 17. Upon a bond given to the county, to pay for timber taken from such 
 land, the county maj' maintain suit, though having no beneficial interest in 
 the avails. Washington v. Brown, xxxiii. 442. 
 
 18. The Act of 1845, authorizing County Commissioners to grant penmits 
 for cutting timber upon the public lots, was repealed by Act of 1848 ; and 
 the authority of the Commissioners terminated. Small v. Small, xxxt. 400. 
 
 19. Such permits could operate for no longer time than one year. Small 
 V. Small, xxxY. 400. 
 
484 QUARANTINE.— BAILBOADS. 
 
 QUARANTINE. 
 
 1. Health officers are not authorized to take vessels, in quarantine, into 
 their own possession and control, to the exclusion of the owner, or those 
 whom he has put in charge. Mitchell v. Rocldand, XLi. 363. 
 
 2. And where such possession and control are taken by health officers or 
 their servants, the town is not responsible. Mitchell v. Rockland, xli. 363. 
 
 3. The original legal signification of quarantine, was the term of forty days, 
 during which persons who came from foreign ports with the plague were not 
 permitted to go on shore ; but the signification of the term has been enlarged 
 and modified by the statute, so as to represent the restriction against vessels 
 having on board other contagious diseases than that of the plague. Mitchell 
 V. Bockland, xli. 363. 
 
 QUO WAREANTO. 
 See Wkits, 6sc., 5. 
 
 RAILROADS. 
 
 1 . A railroad company is not bound to maintain fences on the lines of their 
 roads, except where the same passes through enclosed or improved land. 
 Perkins t. E. B. B. Co., xxix. 307. 
 
 2. If injury to another's cattle happen, (through want of such fences,) upon 
 common and unenclosed land, it is not legally imputable to the negligence of 
 the company. Perkins v. E. B. B. Co., xxix. 307. 
 
 3. If cattle are wrongfully upon the adjoining close, and escape therefirom 
 upon the railroad and are injured, the railroad company are not liable. 
 Perkins v. E. B. B. Co., xxix. 307. 
 
 4. Cattle are not presumed as lawfully going at large. There must be 
 proof that the town gave permission. Perkins v. E. B. R. Co., xxix. 307. 
 
 5. Under a charter authorizing the construction of a railroad " to the place 
 of shipping lumber," on a tide- water river, the right of location is not limited 
 to the upland or to the shore, but it may be extended across the flats and over 
 tide- water, to a point at which lumber may be conveniently shipped. Peavey 
 V. C. B. B. Co., XXX. 498. 
 
 6. After the time has expired, within which a railroad company; by their 
 charter, were to complete their road, they have no authority to take additional 
 lands for the extension of their road, except by consent of the owner. Peavey 
 V. C. R. B. Co., XXX. 498. 
 
 7. The charter of the K. & P. Railroad Company provides a remedy for the 
 land owner, to recover damage for the location and construction of the track 
 across his land ; and the remedy, thus provided, is in exclusion of the com- 
 mon law remedy. Mason v. K. & P. R. R. Co., xxxi. 215. 
 
BAILEOADS. 485 
 
 8. The injury, done to the owner, by the erection of an embankment upon 
 the site of the road, whereby the communication is destroyed between parts 
 of his land which lie upon opposite sides of the track, is to be included in the 
 damages. Mason v. K. & P. R. R. Co., xxxi. 215. 
 
 9. An action to recover damage for destroying such communication, either 
 by taking the strip of the land for the site of the road, or by the erection of 
 such embankment, proceeds, not upon the ground that the land for the road 
 was illegally taken, but that the power, granted by the charter, had been 
 transcended or abused. It therefore presents no basis for a decision as to the 
 constitutionality of that power. Mason v. K. & P. R. R. Go., xxxi. 215. 
 
 10. County Commissioners' appraisement of the damage done to an individ- 
 ual, by the location of a railroad across his land, may be revised by a jury, as 
 well upon the application of the railroad corporation, as upon that of the land 
 owner. Kimball v. K. & P. R. R. Co., xxxv. 255. 
 
 11. The compensation, provided by statute for damages occasioned by 
 the .location and construction of railroads, extends only to real estate and 
 materials taken. Rogers v. K. & P. R. R. Co., xxxv. 319. 
 
 12. For damages, indirectly resulting from the lawful acts of a chartered 
 corporation, the law affords no remedy. Rogers v. K. & P. R. B. Go., 
 xxxv. 319. Whittieer v. K. & P. R. R. Go., xxxviii. 26. 
 
 13. It is competent for the Legislature to authorize permanent erections 
 across tide waters or any other navigable waters, although the navigation may 
 thereby be impaired. Rogers v. K. & P. R. R. Go., xxxv. 319. 
 
 14. The charter of the K. & P. R. R. Company, with its additional enact- 
 ments, authorizes the erection of bridges and causeways across navigable 
 water, but' requires them not to be built in such a manner as to prevent the 
 navigation of such water, or to occasion unreasonable detention thereon. 
 Rogers v. K. & P. R. R. Go., xxxv. 319. 
 
 15. For the damage occasioned by so erecting the structures as to prevent 
 such navigation, or to occasion such detention, the remedy is not by applica- 
 tion to the County Commissioners, but by an action at law. Rogers v. K. 
 & P. R. R. Go., xxxv. 319. 
 
 16. By Act of 1842, c. 9, railroad companies are made liable for injuries 
 by fire, communicated by their locomotives, to buildings or other property, 
 and may effect insurance thereon in their own behalf. Ghapman v. A. & 
 St. L. R. R. Co., xxxvii. 92. 
 
 17. This statute liability is limited to property of a permanent nature, and 
 on which insurance may be effected. Ghapman v. A. S St. L. R. R. Go., 
 XXXVII. 92. Pratt v. A. & St. L. R. R. Go. xlii. 579. 
 
 18. For injuries to other property, by fire, they will only be responsible in 
 consequence of negligence, unskilfulness or imprudence in running or con- 
 ducting their locomotives. Chapman v. A. & St. L. R. R. Co., xxxvii. 
 92. 
 
 19. If land of the plaintiff, over which there is an established highway, is 
 taken by a railroad company under their charter, no action at law is maintain- 
 able. Whittieer v. E. & P. R. R. Go., xxxvm. 26. 
 
 20. Where a railroad company constructs its track across a highway, in 
 accordance with the directions and orders of the County Commissioners, no 
 action can be sustained against such company, for damages suffered in con- 
 sequence of their excavations, by the- owner of the adjoining land. Nor wiU 
 they be liable for any damages to such owner by the necessary acts of the 
 
486 EAILROADS. 
 
 officers of the town in grading down the highway in consequence of the con- 
 struction of their railroad across it. Whittieer v. K. & P. R. JR. Co., xxxvin. 
 26. 
 
 21. The provisions of E,. S. of 1841, c. 76, attach to all railroad corpora- 
 tions, unless specially exempted therefrom by their charter. Game v. Brig- 
 ham, XXXIX. 35. 
 
 22. By Act of 1853, c. 41, railroad corporations, required by their charter 
 to keep and maintain legal and sufficient fences on the exterior lines of their 
 roads, are made liable to a forfeiture of one hundred dollars per month, for 
 neglecting that duty. Norris v. A. R. R. Co., xxxix. 273. 
 
 23. This Act, being remedial and for the protection of property peculiarly 
 exposed by the introduction of locomotive engines, applies to corporations 
 existing before its passage. Norris v. A. R. R. Co., xxxix. 273. 
 
 24. A neglect by the corporation, to erect or maintain such a fence, renders 
 them liable to reimburse any person suifering injury in his property thereby, 
 in an action at common law. Norris v. A. R. R. Go., xxxix. 273. 
 
 25. Thus, where the plaintiff's horse, by reason of a defective fence upon 
 the line of a railroad, well known to the company, escaped from his pasture 
 upon the track, and was injured by the engine, the company are responsible 
 for the damages, notwithstanding the engineer was in the exercise of due care, 
 and the fence was originally imperfectly built by the plaintiff for the company. 
 Norris v. A. R. R. Co., xxxix. 273. 
 
 26. An omission, on the part of the owner of the land, over which a rail- 
 road has been located, to call on the County Commissioners to assess his com- 
 pensation, will not preclude him from maintaining trespass quare clausum 
 against the company, after they have taken his land without making compen- 
 sation. Hall V. Pickering, xl. 548. 
 
 27. Nor will an omission, by the corporation, to make the compensation in 
 the way provided by statute, after having taken possession of an individ- 
 ual's land, work a forfeiture of their rights under their charter, to enter upon 
 the land, and have an exclusive occupation, temporarily, as an incipient pro- 
 ceeding to the acquisition of title to, or an easement in it. Hall v. Picker- 
 ing, XL. 548. 
 
 28. While the law, under this constitutional provision, allows a reasonable 
 time to the raiboad company to make the compensation, after such an exclu- 
 sive occupation, still, when the company takes this exclusive occupation un- 
 der a claim of right in fee, as by a deed from the owner, when, in fact, no 
 such right exists, no reasonable time is allowed for making the compensation; 
 and an action of trespass lies against them, b)' the owner, for all the damages 
 suffered by it. Sail v. Pickering, xr. 548. 
 
 29. A railroad corporation was authorized by its charter to purchase, or 
 take and hold, so much land of private persons or other corporations, as might 
 be necessary for its corporate use, and, also to take, remove and use, for cer- 
 tain specified purposes, any earth, gravel, stone, timber or other materials, on 
 or from the land so taken: — Held, that this did not authorize the servants of 
 the corporation to go upon lands not taken under the charter, and take mate- 
 rials therefrom, against the will and without the consent of the owners of the 
 land. Parsons v. Howe, xxi. 218. 
 
 30. The liability of a railroad company, under the Act of 1842, c. 9, § 5, 
 is not confined either to real or personal estate ; but it exists in reference to 
 both. Pratt v. A. & St. L. R. R. Co., xiii. 579. 
 
RAPE.— EEAL ACTION. 487 
 
 31. It is liable for damages to growing timber " along its route." Pratt v. 
 A. & St. L. R. R. Co., xiii. 579. 
 
 32. The language, " along the route," applies to property near and adjacent 
 to the railroad, so as to be exposed to the danger of fire from the engines. 
 Pratt V. A. & St. L. B. B. Co., xiii. 579. 
 
 33. The growing trees of A. stood about three hundred feet from the line 
 of the railroad. Fire from the locomotive engine communicated to materials 
 growing and naturally lying between the premises of A. and the railroad, and 
 extended to and damaged A.'s growing timber : — Held, that the company 
 was liable for the damage. Pratt v. A. & St. L. B. B. Co., xlii. 579. 
 
 34. The time of taking real estate, under R. S. of 1841, c. 81, § 4, must 
 be the time of entering into the occupation of the land ; and there may be 
 cases where a reasonable time, after a temporary occupation, will not expire 
 before three years. Nichols v. S. & K. B. B. Co., xliii. 356. 
 
 See Assumpsit, 2. 
 Certiokabi, 23. 
 cottittt commissionebs, 40. 
 coepoeation. 
 
 RAPE. 
 
 1. By the law of this State, rape consists in a man's ravishing and carnally 
 knowing any female of the age of ten years or more, by force and against her 
 wUl. State V. Blake, xxxix. 322. 
 
 2. The acts necessary to constitute this crime must be done "by force;" 
 and these words, or some equally significant, in addition to the other language 
 used in the statute, cannot be dispensed with in an indictment founded 
 thereon. State v. Blake, xxxix. 322. 
 
 3. The word " violently," substituted instead of "by force," is not suffi- 
 cient. Staie V. Blake, xxxix. 332. 
 
 REAL ACTION. 
 
 I. WHEN MAINTAINABLE. 
 
 II. PLEADINGS BY THE PLAINTIFF. 
 
 III. PLEADINGS BY THE DEFENDANT, 
 
 rv. EVIDENCE. 
 
 V. JUDGMENT, AND ITS EFFECT. 
 
 I. WHEN MAINTAINABLE. 
 
 1. If the demandant, in a writ of entry, shows no title in himself to the 
 real estate demanded, he cannot recover, although it should appear that the 
 tenant also had no title. Derby v. Jones, xxvii. 357. 
 
488 KEAL ACTION. 
 
 2. The demandant introduced a series of deeds from 1786, under which the 
 title was traced to himself. One of the deeds was made in 1807, the grantor 
 being then disseized. The tenant made title in himself under a different 
 source, as shown by a series of deeds from 1804, under which possession had 
 been held from that to the present time: — Held, iiie demandant was not 
 entitled to recover. Crooker v. Jewell, xxxi. 306. 
 
 3. The owner of land, though disseized in 1804, conveyed the same by 
 deed, in 1807, to the demandant, who entered into possession: — Held, that 
 the demandant's action is not maintainable, if the subsequent acts of OAvner- 
 ship, exercised by the disseizor, were of as important a character, and of as 
 long a continuance, as those of the demandant. Crooker v. Jewell, xxxi. 
 306. 
 
 4. A real action upon a mortgage cannot be sustained after the debt se- 
 cured by it has been paid. Williams v. Thurlow, xxxi. 392. 
 
 5. Administrators de bonis non cannot maintain a real action, in that 
 capacity. Brown v. Strickland, xxxii. 174. 
 
 6. At common law, an action for real estate was abated by the death of the 
 tenant. By our statute, it may be continued by notice to the legal represen- 
 tatives of the tenant, and to all others interested as heirs, &c. And, upon the 
 death of the tenant in a real action, no further proceedings can be had in the 
 suit until the appearance of the heirs or notice to them. Bridgham v. Prince, 
 XXXIII. 174. 
 
 7. An unsealed agreement by a doweress, (after having recovered judg- 
 ment for dower,) made with the warrantor of the judgment-tenant, that she 
 would receive a specified sum yearly during life, in lieu of dower, will not 
 bar her right to receive possession by writ of entry, after a neglect of pay- 
 ment. But it reserves to her the right of rescinding when the payments fail; 
 and, unless there be such a rescission, her right to recover mesne profits in a 
 writ of entry does not arise. Sargent v. Roberts, xxxit. 135. 
 
 8. A writ of entry is maintainable by a mortgager, except against the 
 mortgagee and those claiming under him, notwithstanding the tenant, by 
 long occupation, has become entitled to betterments. Huckins v. Straw, 
 xxxit. 166. 
 
 9. The demandant in a real action, of property in the possession of another, 
 can only recover on the strength of his own title, and not on the weakness of 
 the tenant's. Webster v. HUl, xxxviii. 78. 
 
 See DowEK. 
 
 mobtgage, 11. 
 Seizin & Disseizin. 
 
 n. PLEADINGS BY THE PLAINTIFF. 
 
 10. If, pending a writ of entry by several demandants, the tenant purchase 
 the share of one of them, the writ may be amended by striking out that 
 one's name. Chadbourne v. Rackliff, xxx. 354. 
 
 1 1 . After notice to quit, the grantee may elect to treat the grantor, if in 
 possession, as holding by wrong, and not as tenant ; aild the bringing of a 
 writ of entry is such an election. Such vn-it, with the possession thereby 
 obtained, precludes a recovery for use and occupation. Larrabee v. Lum- 
 lert, xxxit. 79. 
 
REAL ACTION. 489 
 
 12. To entitle a demandant to recover for rents and profits, in a writ of 
 entry, he must set forth a claim for them in his declaration. And, though 
 specially declared for, rents and profits are recoverable only up to the date of 
 the writ. Larrabee v. Lumhert, xxxvi. 440. 
 
 13. Kents and profits, accruing before that date, cannot be recovered in any 
 subsequent action of any form ; but those accruing subsequently, and prior to 
 the time when possession is taken by the demandant, may be recovered in 
 trespass for mesne profits. Larrabee v. Lumbert, xxxvi. 440. 
 
 See Amendment, 8, 14. 
 
 m. PLEADINGS BY THE DEFENDANT. 
 
 14. Questions raised by pleading, and issues taken thereupon, followed by 
 a verdict and judgment, cannot be agitated in another suit between the same 
 parties or their privies, concerning the same subject matter. Hobbs v. Parker, 
 XXXI. 143. 
 
 15. A reference, made by a party in pleading, to documents concerning a 
 point not in controversy, will not invalidate his proceedings, although such 
 document contain representations at variance with the allegations of the 
 party making the reference. Hobbs v. Farher, xxxi. 143. 
 
 16. Thus, in a real action, if a party, in order to elucidate his case, refer 
 in his plea to a plan of land not in controversy, his rights are not concluded 
 by the reference, although the plan present views in confiict with the allega- 
 tions of the plea. In such case he may show the plan to be erroneous. Hobbs 
 v. ParJcer, xxxi. 143. 
 
 17. To a writ of entry, the tenant pleaded in abatement, that, since the 
 last continuance, a deputy sheriff for the county, having in his hands, for ser- 
 vice, an execution against the demandant, in favor of a third person, in virtue 
 thereof ousted and disseized the tenant, and set off to the creditor the de- 
 manded premises, and delivered to him the seizin and possession thereof, 
 which the creditor has ever since held, and still holds; — on demurrer, the 
 plea was held to be bad. Burnham v. Howard, xxxi. 569. 
 
 18. It is no defence to a writ of entry, that the tenant owns a building 
 upon the land, which he had erected by the landlord's consent ; for, even after 
 a recovery against him, he is entitled to a reasonable time in which to remove 
 it. Sullen v. Arnold, xxxi. 583. 
 
 19. Upon a plea of disclaimer, if the tenant, at the commencement of the 
 suit, was in possession of any part of the land disclaimed, the demandant 
 must he the prevailing party. Put. F. School v. Fisher, xxxiT. 172. 
 
 20. When the tenant would disclaim a portion of the premises, it must be 
 made up and filed according to law, or it cannot be available. Such dis- 
 claimer cannot be incorporated into the general issue. Put. F. School v. 
 Fisher, xxxviii. 324. 
 
 21. The general issue admits the tenant to be in possession of all the land 
 not specially disclaimed. Perkins v. Baitt, xliii. 280. 
 
 22. Where the disclaimer does not extend to the whole of the demandant's 
 land, the tenant is guilty of disseizin, and has no right to retain the posses- 
 sion of any portion of it, however minute, which is capable of admeasure- 
 ment. Perkins v. Baitt, xliii. 280. 
 
 See Abatement, 5, 18. 
 
 62 
 
490 REAL ACTION. 
 
 rV. EVIDENCE. 
 
 (a) On the part op the DBMANDAirr. 
 
 (b) On the part op the tenant. 
 
 (a) On the part of the demandant, 
 
 23. Where a deed of a townsHp of land has been made, and there are ex- 
 cepted tracts therein, amountuig to half of the whole township, it is incum- 
 bent on the grantee, claiming title to a particular lot under such deed, to show 
 that such lot is not includedin the excepted tracts. Smith v. Bodfkh, xxyii. 
 289. 
 
 24. It is incumbent on the demandant, claiming title under a deed from a 
 corporation executed by one in the character of its agent, to prove that the 
 corporation, by a legal vote, had authorized such person to make the convey- 
 ance. Miller v. Ewer, xxtii. 509. 
 
 25. Where the deed, under which the demandant claims title, is introduced 
 by him without objection, this furnishes prima facie evidence of its execution 
 and delivery on the day of its date. Woodman v. Smith, xxxtii. 21. 
 
 26. When a demandant claims title by a mortgage, and the tenant, by a 
 later quitclaim deed from the same grantor, and earliest on record, on proof 
 that the latter had notice of the mortgage prior to the delivery of his deed, 
 the demandant must recover ; and the common grantor is a competent wit- 
 ness of the fact without a release. Paul v. Frost, xx. 293. 
 
 (b) On the part of the tenant. 
 
 27. In a writ of entry, adverse possession will not establish title in the 
 tenant, unless commenced twenty years before the suit. Saco W. P. Go. v. 
 Ooldihwaite, xxxt. 456. 
 
 28. Under a plea of disclaimer, title in a third person cannot be proved. 
 Put. F. School V. Fisher, xxxiv. 172. 
 
 29. Under the general issue, the tenant cannot give in evidence a convey- 
 ance by the demandant of any portion of the premises, to one under whom he 
 does not claim ; and which does not show that the demandant was not seized 
 according to his writ. Put. F, School v. Fisher, xxxviii. 324. 
 
 See Bexteements, 1. 
 
 V. JUDGMENT AND ITS EFFECT. 
 
 30. A writ of entry by heirs, to recover land which belonged to their an- 
 cestor, is not barred by the pendency, in the Court of Probate, of a petition 
 by the administrator for license to seU the same for the payment of debts. 
 Such license, if obtained, will not be defeated by a judgment in favor of the 
 heirs. Chadbourne v. Rackliff, xxx. 354. 
 
 31. A judgment for the demandant in a real action, with possession taken 
 under it, wiU preclude the tenant in that action from afterwards asserting, 
 against such demandant, any personal property in the buUdings which he had 
 erected on the land. Doah v. Wiswell, xxxrii. 355, 
 
RECEIPT.— BECOGNIZANCE. 491 
 
 KECEIPT. 
 
 1. In action upon a promissory note, a receipt in full of all demands, given 
 ty the plaintiff to the defendant, if unexplained or uncontradicted, will defeat 
 the action. Gunningham v. Batchelder, xxxii. 316. 
 
 2. A receipt in full of all demands, though purporting to be for a sum 
 merely nominal, if unexplained, will discharge all debts then existing, even 
 such as are not payable until a subsequent day. Cash v. Freeman, xxxv. 
 483. 
 
 See Etidence, 157 — 159. 
 
 EECEIVER OF STOLEN GOODS. 
 See Indictment, 40, 41, 65. 
 
 RECOGNITION OF TITLE. 
 See Peopkietoes of Land. 
 
 RECOGNIZANCE. 
 
 I. IN CRIMINAL CASES. 
 n. ON APPEAL IN CIVIL ACTIONS. 
 in. ACTIONS UPON RECOGNIZANCES. 
 
 I. IN CRIMINAL CASES. 
 
 1. In a recognizance, taken by a magistrate, for the prosecution of an ap- 
 peal to the District Court, in a criminal prosecution, his jurisdiction should 
 appear in the proceedings. State v. Magrath, xxxi. 469. State v. Wormell, 
 XXXIII. 200. State v. Sartwell, xxxT. 129. 
 
 2. That jurisdiction does not appear, if the recognizance fails to show in 
 what county the supposed offence was committed. State v. Magratli, xxxi. 
 469. 
 
 3. The penal sum of a recognizance of a witness in a criminal case, condi- 
 tioned for his appearance, &c., is limited by the statute to twenty dollars, 
 when taken by a magistrate. State v. Wormell, xxxiii. 200. 
 
 4. A recognizance taken on the Lord's day, " between the midnight pre- 
 ceding and the sunsetting of the same day," to prosecute an appeal in a 
 criminal prosecution, is void. State v. Suhur, xxxiii. 539. 
 
492 RECOGNIZANCE. 
 
 5. A recognizance, taken before a magistrate, must show his jurisdiction. 
 State V. Hartwell, xxxv. 129. 
 
 6. Where, upon an examination before a magistrate, the defendant recog- 
 nized for his appearance, &c., the recognizance must show that the offence 
 had been committed, and that there is probable cause for believing the accused 
 to be guilty of it. State v. Hartwell, xxxt. 129. 
 
 7. If it show merely that " there is good cause to suspect" the accused to 
 be guilty, the recognizance is void. State v. Hartwell, xxxt. 129. 
 
 8. Where the statute requires a defendant to enter into a recognizance to 
 " prosecute" his appeal, and the condition is to " enter" his appeal, the latter 
 term is included in the former. State v. Boies, xli. 344. 
 
 9. A recognizance should recite the cause of caption. State v. Brown, 
 XLi. 535. 
 
 See Justice or the Peace, 2. 
 
 n. ON APPEAL IN CIVIL ACTIONS. 
 
 10. A recognizance, taken in the District Court, conditioned to enter and 
 prosecute an appeal made to the Supreme Judicial Court, in a civU action, 
 becomes a part of the record in the District Court ; and an action of debt 
 can be maintained thereon, as a record, on a failure to perform the condition. 
 Longley v. Vose, xxtii. 179. 
 
 1 1 . A recognizance, entered into upon the filing of exceptions in the Dis- 
 trict Court, and reciting the filing of the exceptions, is not rendered void by 
 further reciting that the excepting party " appealed," and by being condi- 
 tioned that he should prosecute the appeal. Merrick v. Farwell, xxxiii. 
 253. 
 
 12. A recognizance, given upon an appeal from a judgment on process of 
 forcible entry, &c., is void, if it be conditioned for any performance or pay- 
 ment not prescribed by statute. Dennison v. Mason, xxxvi. 431. 
 
 13. Thus, it is void, if it require the appellant to prosecute his appeal 
 with effect ; or to pay all costs that may arise in the suit after the appeal ; 
 or to pay the intervening rent. Dennison v. Mason, xxxti. 431. 
 
 14. Where a recognizance is entered into, on an appeal from a judgment 
 of a justice of the peace in a civU action, conditioned that the appellant 
 should "personally appear" at the appellate Court, and pay " all intervening 
 damages and costs," the recognizance is void, as weU as the appeal. French 
 v. Snell, xxxvii. 100. Lane v. Crosby, xiii. 327. 
 
 See Justice oe the Peace, 2, 3. 
 
 ni. ACTIONS UPON EECOGNIZANCES. 
 
 15. Costs, due on a recognizance to prosecute an appeal, &c., are payable 
 as soon as a taxation of them is made. And a tender of such costs, made 
 subsequently to such taxation, is without legal effect. Merrick v. Farwell, 
 XXXIII. 253. 
 
 16. In scire facias, upon a recognizance to the State, in a prosecution for 
 crime, the Court, in order to discover what crime is charged, can look only to 
 the recognizance. State v. Lane, xxxiii. 536. 
 
RE-COMMITMENT OF REPORTS.— EECORD. 493 
 
 17. The Court cannot assume that acts, which may be consistent with 
 innocence, and are not charged to be in violation of law, are criminal, merely 
 by reason of their being so denominated by the magistrate. State v. Lane, 
 XXXIII. 536. 
 
 18. Where a defendant had appealed from a decision rendered under the 
 Act of 1855, c. 166, and had recognized in the usual form, he is liable if the 
 appeal is not entered, notwithstanding the repeal of the Act ; the forfeiture 
 claimed under the recognizance being no part of the punishment for the 
 offence. State v. Boies, xli. 344. 
 
 19. The right to enforce a recognizance does not depend upon the guilt or 
 innocence of the accused. State v. Boies, xli. 344. 
 
 20. The remedy authorized by the Act of 1855, c. 166, for a breach of the 
 condition of a recognizance, is only cumulative. State v. Boies, xli. 344. 
 
 ■ 21. A writ of scire facias, on a recognizance, referring to no charge against 
 the defendant, and containing no reference to any charge against him in any 
 complaint or indictment, is bad, and insufficient to authorize proceeding to 
 trial. State \. Brown, xli. 535. 
 
 22. A recognizance, conditioned that the defendant should appear in Court 
 from " day to day during the term," does not furnish a foundation for a writ 
 of scire facias. State v. Brown, xli. 535. 
 
 23. A party cannot be required to come into Court actually in session, to 
 answer " such matters and things as shall be objected against him," without 
 any specific charge being alleged or set forth. State v. Brown, xli. 535. 
 
 24. Scire facias upon a recognizance, taken before the Supreme Judicial 
 Court in a criminal prosecution, may properly be made returnable to a term 
 of the Court holden for the transaction of criminal business. State v. Brown, 
 XII. 535. 
 
 KE-COMMITMENT OF KEPORTS. 
 
 1. After a report of referees has been accepted, and before judgment, the 
 presiding Judge, for good cause, has power to order the re-commitment of the 
 report to the same referees. Mayberry v. Morse, xxxix. 105. 
 
 2. The same causes which would suffice for the ordering of a new trial 
 might ordinarily require a re-commitment. Mayierry v. Morse, xxxix. 105. 
 
 See Aebitbation, 14, 28, 55, 59, 62, 64. 
 Petition fob Paetition, 23, 33. 
 
 RECORD. 
 
 1. Where the record to be proved is a record of the Court before which 
 the proof is to be made, a production and inspection of the record is the 
 proper mode of proof. Longley v. Vose, xxvii. 179. 
 
 2. Where the docket shows that a party recognized with his surety to 
 prosecute an appeal ftom the District Court to the Supreme Judicial Court, 
 
494 EECOED. 
 
 and the clerk died before the recognizance was extended upon the record, it 
 is competent for a subsequent clerk, by direction of the Court, (but not other- 
 wise,) to complete the record. Longley v. Vose, xxvii. 179. 
 
 3. The memoranda of the clerk upon the docket must stand as the record, 
 until a more extended one can be made therefrom. Longley v. Vose, xxvii. 
 179. 
 
 4. In debt on a judgment in another Court, if there be introduced two 
 copies of the record duly authenticated, and yet variant from each other ; it 
 seems, the plaintiff must fail because of uncertainty in his proof. Tibbets v. 
 Baker, xxxir. 25. 
 
 5. In such case, it seems, the certifying officer, or any person who has 
 compared the copies with the original, may testify which is the true copy. 
 Tibbets v. Baker, xxxii. 25. 
 
 6. In a suit upon a judgment, recovered before a justice of the peace, the 
 plaintiff is bound to establish the existence of the record. For that purpose, 
 it is not sufficient to introduce a book, alleged to contain the record, without 
 some proof of its authenticity. Wentworth v. Keizer, xxxiii. 367. 
 
 7. The contents of a justice's record are to be proved by an authenticated 
 copy. His certificate, alleging what facts appear by the record, is not re- 
 ceivable as proof. English v. Sprague, xxxiii. 440. 
 
 8. In a suit between individuals, the public, records of a city, of the loca- 
 tion or alteration of its streets, are admissible. Barker v. Fogg, xxxiv. 
 392. 
 
 9. Thus, where it became material for a party to show at what time a 
 public street was actually widened : — Held, competent to introduce the re- 
 cords of the city to prove at what time the widening was authorized. Bar- 
 ker V. Fogg, xxxiT. 392. 
 
 10. In such case, in the absence of opposing evidence, it is allowable for 
 the jury to infer, that the actual widening was not made until after the same 
 was duly authorized. Barker v. Fogg, xxxiv. 392. 
 
 11. Papers and documents, used and filed in a case, if not incorporated 
 into the record, constitute no part of it. -Paul v. Hussey, xxxv. 97. Star- 
 bird V. Eaton, xlii. 569. Valentine v. Norton, xxx. 194. McArthur v. 
 Starret, xliii. 345. Game v. Bridgham, xxxix. 35. Buck. B. B. B. Co. v. 
 Benson, xliii. 374. 
 
 12. The allegations of a justice's record, in matters within his jurisdiction, 
 are entitled to the same credit as are allegations contained in the records of 
 the higher tribunals. Paul v. Hussey, xxxv. 97. 
 
 13. Courts have control over their own records of a suit, untU final judg- 
 ment be rendered ; and they may bring forward, from a previous term, any 
 uncompleted action, and alter the docket entry pertaining to it, as justice may 
 require. Woodcock v. Parker, xxxv. 138. 
 
 14. A magistrate, who has certified his record in an incomplete form, is 
 bound, under leave of Coiu't, to complete the record, and to amend the cer- 
 tificate accordingly. State v. Maker, xxxv. 225. 
 
 15. The record of a magistrate cannot be impeached by parol testimony. 
 Dolloff V. Hartwell, xxxviii. 54. 
 
 16. Notes, filed in a case, constitute no part of the record, and although 
 not corresponding with those described in the declaration, cannot be regarded 
 as error. Game v. Bridgham,, xxxix. 35. Buck. B. B. B. Co. v. Benson, 
 XLIII. 374. 
 
REFEREES. —REGISTER. —REGULATIONS. 495 
 
 17. Papers, presented to a common law court, and acted on as evidence, 
 constitute no part of the record. Starlird v, Eaton, xiii. 569. 
 
 See Ekkoe. 
 
 Evidence, 280 — 291. 
 
 RECORD OF BIRTHS AND DEATHS. 
 See Town Clekk. 
 
 REFEREES . 
 
 An appointment of a person " to see whether" certain work was accord- 
 ing to previous contract does not confer the powers of a referee ; and his 
 opinion may be controlled by evidence. McKinney v. Page, xxxii. 513. 
 
 See Akbitkation. 
 
 REGISTER, AND REGISTRY OF DEEDS. 
 
 1. The register of deeds is the proper officer to certify the copy of the 
 records of a levy on execution. Oray v. Garnsey, xxxii. 180. 
 
 2. The general rule, that titles and interests in real estate are to appear of 
 record, has been controlled, to some extent, by the statute, which gives a lien 
 upon land, for labor, &c., furnished in the erection or repair of buildings 
 thereon. Parsons v. Copeland, xxxiii. 370. 
 
 3. By R. S. of 1841, c. 91, § 26, the notice, by force of which a prior 
 unregistered deed may prevail against a subseqiient conveyance, must be 
 actual. Prior to that statute, implied or constructive notice might have that 
 effect. Blethen v. Dwinal, xxxt. 556. 
 
 4. The certificate of the register of deeds, in these words: — "Writ — 
 Samuel Kendall v. Richard Look; dated Nov. 21st, 1850. Attachment dated 
 Nov. 30, 1850. Recorded, Dec. 30, 1850." — is not sufficient proof that the 
 copy of the return of an attachment of real estate was " lodged" in the 
 register's office. Kendall v. Irving, xlii. 339. 
 
 See Deed, 22 — 44. 
 
 REGULATIONS IN MANUFACTURING ESTABLISHMENTS. 
 
 1. In manufacturing establishments, the employers may introduce pruden- 
 tial and effective regulations to be observed by the operatives. Harmon t. 
 Salmon Falls Manuf'g Co., xxxt. 447. 
 
496 EELATIONSHIP.— RELEASE. 
 
 2. SucH regulations may provide, in themselves, for a forfeiture of wages, 
 in case of a willful non-compliance. Harmon v. Salmon Falls Manufg Go., 
 XXXV. 447. 
 
 3. A person entering such establishment, as an operative, with knowledge 
 of such regulations, is considered as having .assented to them, though he may 
 not have signed them ; and such assent constitutes a valid contract. Harmon 
 V. Salmon Falls Manufg Co., xxxt. 447. 
 
 4. No suit in law or equity can be maintained against the employer to re- 
 cover the wages forfeited under such contract. Harmon v. Salmon Falls 
 Manufg Co., xxxv. 447. 
 
 5. That such operative had knowledge of such a provision in the regula- 
 tions, may be inferred from the employer's having delivered to him a printed 
 copy of them. Harmon v. Salmon Falls Manufg Co., xxxv. 447. 
 
 6. When the regulations, known to the operative, provided for a forfeiture 
 of wages, in case of his leaving the service without having given previous 
 notice, if he would rely upon having quit by the employer's consent, or upon 
 having fulfilled the term for which he had contracted to labor, the onus is 
 upon him. Harmon v. Salmon Falls Manufg Co., xxxv. 447. 
 
 RELATIONSHIP. 
 
 By intendment of R. S. of 1841, c. 1, § 3, rule 22, relationship, within 
 the sixth degree, is an interest which disqualifies a person for deciding upon 
 rights wherein he is so related to one of the parties. McKeen v. Gammon, 
 XXXIII. 187. 
 
 RELEASE. 
 
 1. In assumpsit against joint debtors, it is no defence that one of them 
 has been discharged from his share of the debt by an unsealed instrument 
 in ^vriting, although upon good consideration. McAllister v. Sprague, xxxiv. 
 296. 
 
 2. Should the discharged debtor be molested on account of the debt, his 
 remedy is by special action on the discharge. McAllister v. Sprague, xxxiT. 
 296. 
 
 3. An heir apparent, who releases, with his father's knowledge and consent, 
 all his present and future interest in his father's estate, with a covenant that 
 neither he, nor any one through him, shall ever claim any right to the same, 
 and there is no fraud on the part of the grantee, is precluded from sub- 
 sequently setting up title to any part of the estate, either as heir or de- 
 visee. Curtis V. Curtis, xi. 24. 
 
 See Dower, 1, 41, 46, 47. 
 Witness, 39, 42, 43, 47. 
 
KEPLEVIN. 497 
 
 RENTS AND PROFITS. 
 
 See ExECTTTiON, 51. Real Action, 12, 13. 
 
 REPEAL. 
 See Statutes, 16 — 21, 23, 24. 
 
 REPLEVIN. 
 
 I. WHO MAY MAINTAIN REPLEVIN. 
 
 n. WHEN MAINTAINABLE. 
 HI. BOND. 
 IV. JUDGMENT POK RETURN. 
 
 V. PLEADINGS, EVIDENCE AND PRACTICE. 
 VI. SERVICE. 
 
 L WHO MAY MAINTAIN REPLEVIN. 
 
 1 . Replevin can be maintained only by one having the right to possession. 
 Fierce v. Stevens, xxx. 184. 
 
 2. As a general rule, a chattel cannot be replevied from one part owner by 
 another part owner. Hardy v. Sprowle, xxxii. 322. 
 
 3. But it seems, after a delivery to the applicant, under R. S. of 1841, c, 
 114, § § 65 and 66, he may replevy the property, even from his co-tenant, if 
 it be taken or detained by him. Hardy v. Sprowle, xxxii. 322. 
 
 4. But such delivery must give to the applicant actual custody of the pro- 
 perty. And untU such delivery, the bond given by the applicant has not 
 become operative. Hardy v. Sprowle, xxxii. 322. 
 
 5. A commission merchant, who has sold a part of the goods left with him 
 for sale, may maintain replevin for the residue of the goods, even against an 
 officer who has attached them against the general owner. Sewall v. Nichols, 
 XXXIV. 582. 
 
 6. And his consent to become keeper of the goods for the attaching officer 
 does not defeat his right to maintain replevin. Sewall v. Nichols, xxxiv. 582, 
 
 7. Where property attached has been receipted for, with a promise to pay 
 a sum certain or re-deliver the property, and the same property is subsequent- 
 ly attached by another officer, the former attaching officer cannot maintain 
 replevin against the latter for such property. Waterhouse v. Bird, xxxyii. 
 326. 
 
 8. Goods, seized upon a warrant issued in due form, against their owner, by 
 a magistrate having jurisdiction under a valid statute, cannot be replevied by 
 him. Musgrave v. Hall, xl. 498. 
 
 63 
 
498 REPLEVIN. 
 
 9. A sale of goods, even on credit, if effected through false representations 
 of the vendee, may be treated as void by the vendor, who may maintain re- 
 plevin therefor -without any previous demand. Hall v. Gilmore, xl. 578. 
 
 n. WHEN MAINTAINABLE. 
 
 10. Replevin may be maintained against one who has wrongfully taken the 
 property of the plaintiff, and, for a time, detained it, but who has sold and 
 delivered it to another, prior to the commencement of the suit. Sayward v. 
 Warren, xxvil. 453. 
 
 11. S. delivered to W. a quantity of hides for his note on eight months. 
 At the same time W. gave to S. a ■written agreement, that, if his note should 
 not be paid at maturity, he would return the leather made from the hides, to 
 S., to be sold by him, and the surplus proceeds, after payment of the note, 
 to be paid to W. : — Held, that the property in the hides passed to W., and 
 that S. could not maintain replevin for them. Souihwick v. Smith, xxix. 
 228. 
 
 12. Where defendant had mill logs on the landing, and the plaintiff volun- 
 tarily drew other logs into the same pile, marked the same as the former, and 
 the defendant took them all into possession : — Held, that the plaintiff could 
 not maintain replevin for his proportion of the logs, but only for such of them 
 as he could identify as his. Dillingham v. Smith, xxx. 370. . 
 
 13. If, in replevin, the same writ is used in different counties to reclaim 
 the plaintiff's goo'ds, the error, to be available, 'must be shown in abatement. 
 Hall V. Gilmore, XL. 578. 
 
 m. BOND. 
 
 14. If the name of the plaintiff be put upon the replevin bond by one 
 without any authority therefor, it is not good, though signed by two sureties. 
 Oarlin v. Strickland, xxvil. 443. 
 
 15. "Where the purchaser of the debtor's right to the property attached, at 
 a sale in bankruptcy, has released to the attaching officer aU claim thereto, 
 the latter cannot recover any thing on the replevin bond for the use of such 
 debtor or his assignee, although it did not appear that the assignee had ob- 
 served aU the rules prescribed in making the sale. Howe v. Handley, xxviii. 
 241. 
 
 16. Under the R. S. of 1841, c. 130, it is not necessary that the plaintiff 
 in replevin should sign the bond, or that it should appear, on the bond, that it 
 was given in his behalf. Hoxoe v. Handley, xxtiii. 241. 
 
 17. The damages, recovered by the attaching officer in the action of re- 
 plevin, being recovered in trust, are not conclusive upon the parties in a suit 
 upon the replevin bond. Howe v. Handley, xxviii. 241. 
 
 18. Where the value of the property replevied might be expected to be di- 
 minished by the use of it, and by lapse of time, the obligors in the replevin 
 bond are bound by the value of the property named in the bond. Howe v. 
 Handley, xxviii. 241. 
 
 19. When the original debtor has received a discharge in bankruptcy, and 
 his assignee has discharged all claim against the officer, for property attached, 
 the damages to be recovered upon the replevin bond, to be retained for the 
 
REPLEVIN. 499 
 
 plaintifF's own use, are the amount of the judgment for costs recovered in the 
 action of replevin, -with interest from the time of the judgment ; his reasonable 
 expenses incurred in that action, and interest for the same time ; and his 
 reasonable expenses incurred in the suit upon the bond ; and, also, to recover, 
 for the use of the creditor, interest at the rate of twelve per cent, per annum, 
 on the value of the goods, as alleged in the bonds, from the time of his judg- 
 ment to the time when the attachment was dissolved. Howe v. Handley, 
 XXVIII. 241. 
 
 20. The bond to be taken by an officer, before replevying property, is to 
 be in double its true value. Kimball v. True, xxxiv. 84. 
 
 21. For his failure to take such "bond, it is no defence that, in the writ, 
 the property is stated to be of a value less than its true value ; or that the 
 writ prescribes, as the amount of the bond to be taken, a sum less than double 
 the toue value. And the damage, for such failure, is the amount of the in- 
 jury thereby occasioned. Kimball v. True, xxxiv. 84. 
 
 22. In construing a replevin bond, the intention of the parties must govern. 
 If the intention be in doubt, regard must be had to the general purpose and 
 object of the instrument. And, upon the assumption that the parties acted 
 in good faith, the construction should be such as to render the instrument 
 available for its purpose, rather than such an one as will defeat it. Green v. 
 Walker, xxxvil. 25. 
 
 23. Thus, in an instrument intended and used as a replevin bond, a con- 
 dition, by which the plaintiff obligor is bound to pay to himself, instead of 
 the defendant, the damages and costs, &c., will be deemed a clerical error, 
 and will not defeat the efficiency of the bond. Green v. WalJcer, xxxvil. 
 25. 
 
 24. A replevin bond with only one surety is fatally defective, if objected 
 to by plea in abatement, or by motion seasonably filed. Greeley v. Gurrier, 
 XXXIX. 516. 
 
 rv. JUDGMENT POE, A RETtrHN. 
 
 25. Upon the plea of non cepit, with brief statement that the special pro- 
 perty and the right of possession are in the defendant and not in the plaintiff, 
 if there be a verdict of non cepit, the defendant is entitled to a judgment for 
 return. Moulton v. Bird, xxxi. 296. 
 
 26. In replevin, a verdict of non cepit and a judgment for return are not 
 conclusive upon the question of property. They only show that, for some 
 cause, the defendant is entitled to possession. Moulton v. Smith, xxxii. 
 406. 
 
 27. A judgment for return, founded upon a verdict of non cepit, is not a 
 bar to a suit involving the question of property. Moulton v. Smith, xxxii. 
 406. 
 
 28. If, in judgment for return, there be no assessment of damages occasion- 
 ed by the detention, and if, upon the restitution writ no return of the goods 
 was obtained, the damage for detention may be assessed and allowed in an 
 action upon the replevin bond. And damages will be computed from the time 
 of the original taking. Smith v. Dillingham, xxxiii. 384. 
 
 29. When proceedings in replevin are quashed for defect in the bond, the 
 plamtiff cannot contest, by testimony, the right of the defendant to a retui-n 
 of the property. By the illegality of the proceeding, it is " made to appear" 
 
500 REPLEVIN. 
 
 to the Court, on motion, that the property should be returned. Greeley v. 
 Currier, xxxix. 516. 
 
 30. Where there is a judgment for return of a part of the goods replevied, 
 and a judgment for the plaintiff as to the remainder, both parties are entitled 
 to costs. McLarren v. Thompson, xi. 284. 
 
 V. PLEADINGS. EVIDENCE AND PEACTICE. 
 
 31. In replevin, a plea or brief statement, alleging that the defendant was 
 not in possession of the property when replevied, nbr claimed to own it, is 
 bad in substance. Sayward v. Warren, XXTII. 453. 
 
 32. In replevin for cattle impounded, when the defendant justifies the tak- 
 ing, he must show a fuU and entire compliance with the statute, or he becomes 
 a trespasser ab initio. Morse. \. Reed, xxviii. 481. 
 
 33. In replevin, after issue joined upon the merits, it is too late to move 
 a dismissal of the action, because no replevin bond was returned. Wilson v. 
 Nichols, XXIX. 566. 
 
 34. The plea of non cepit does not admit the property to be in the plaintiff 
 ■when accompanied by a brief statement denying the fact. Dillingham v. 
 Smith, XXX. 370. Moulton v. Bird, xxxi. 296. Cooper v. Baheman, 
 XXXII. 192. 
 
 35. When the pleadings do not admit the property to be in the plaintiff, or 
 do not present merely an issue upon its being the property of the defendant, 
 replevin cannot be maintained without proof of property in the plaintiff. 
 Dillingham v. Smith, xxx. 370. 
 
 36. If neither of the parties request instruction that the jury should find 
 the value of the property, they are presumed to have acquiesced in the valua- 
 tion contained in the writ. Heald v. Cushman, xxx. 461. 
 
 37. The defendant, with a plea of non cepit, may file a brief statement 
 that the property is in himself, or in a stranger, and that it is not in the plain- 
 tiff. Moulton V. Bird, xxxi. 296. 
 
 38. In a sale of chattels for ready ^ay, the vendor may waive the condition 
 of ready pay, and, by delivery to the purchaser, part with the property. After 
 such waiver and delivery, the vendor, in replevin for the goods, cannot avail 
 himself of a fraud between the purchaser and the vendee of the purchaser. 
 Mixer V. Cook, xxxi. 340. 
 
 39. In a case of replevin, submitted on questions of law, without any 
 stipulation as to the allowance of damages, the Court, at another term, after 
 judgment of nonsuit and return, cannot assess the defendant's damages, or 
 submit that question to a jury. Dillingham v. Smith, xxxil. 182. 
 
 40. Damages, in such a case, are recoverable in a suit upon the replevin 
 bond. Per Sheplet, C. J. Dillingham v. Smith, xxxii. 182. 
 
 41. Upon a plea of non cepit with brief statement that the property is in 
 the defendant, and not in the plaintiff, it is incumbent on the plaintiff to prove 
 property in himself. Cooper v. Baheman, xxxii. 192. 
 
 42. If the brief statement merely aUege property in the defendant, without 
 denying it to be in the plaintiff, the burden of proving ownership is on the 
 defendant. Per Wells, J. Cooper v. ^aAieman, xxxii. 192. 
 
 See Abatement, 6, 19. 
 Costs, 18. 
 Ketievst, 16. 
 
REPLEVIN OF A PERSON.— KESCUE. 501 
 
 VI. SERVICE. 
 
 43. An officer has no authority to serve a writ of replevin, without first 
 having taken such bond as the law requires. Garlin v. Strickland, xxvii. 
 443. Greeley v. Currier, xxxix. 516. 
 
 44. If an officer have served a replevin writ, the legal presumption is, that 
 he complied with the law by taking a replevin bond, although his return does 
 not expressly state that fact. Shorey v. Hussey, xxxii. 579. 
 
 KEPLEVIN OF A PERSON. 
 
 1. The writ de Jiomine replegiando lies only in favor of a person unlawfully 
 deprived of his liberty. , Bichardson v. Richardson, xxxii. 560. Hutchings 
 V. Van Bokkelen, xxxit. 126. Farnsworih v. Richardson, xxxt. 267. 
 Gurney v; Tufts, xxxyii. 130. 
 
 2. It can be brought in his name only, though it may be at the procure- 
 ment of another. Richardson v. Richardson, xxxii. 560. 
 
 3. It cannot be used for the benefit of another person, although such other 
 person, by contract, may have a lawful claim to his services or to the custody 
 of his person. Richardson v. Richardson, xxxil. 560. Farnsworth v. Rich- 
 ardson, XXXT. 267. 
 
 4. A female infant, of the age of seventeen months, residing with her 
 father, and under his care and protection, is not so restrained of liberty by 
 him as to authorize any one to replevy her person ; even if the father had 
 previously assigned to such person the care and education of the child. And, 
 whether such an assignment can be lawfully made, nan dicitur. Richardson 
 v. Richardson, xxxii. 560. 
 
 5. From the Act, granting the writ de homine replegiando, it is inferrable 
 that one person may be entitled to the custody of another, although without 
 a civil or criminal process. Hutchings v. Van Bohkelen, xxxit. 126. 
 
 6. If a father, after having made an assignment of the services or society 
 of his minor child, have re-taken the child into his own keeping, the remedy 
 of the assignee, (if any he have,) is not by replevin, but by action on the 
 contract. Farnsworth v. Richardson, xxxt. 267. 
 
 7. Whether such assignment can be valid, quere. Farnsworth v. Richard- 
 son, XXXT. 267. 
 
 EESCUE. 
 
 1. In an action to recover the statute penalty for rescuing animals to pre- 
 vent an impounding, an allegation that they were found in the highway cannot 
 he treated as surplusage. It is material, and must be proTed as laid. Cleaves 
 V. Jordan, xxxit. 9. 
 
 2. Such an averment is not supported by proof that the animals were found 
 upon a town way. Cleaves v. Jordan, xxxit. 9. 
 
502 EESERVATION. — REVENUE LAWS.— EE VERSION. 
 
 reservation; 
 
 A reservation in a deed is for the benefit of the grantor and his successors, 
 and not for that of persons claiming title to property not conveyed by the 
 deed, and derived from other sources. Moulton v. Faught, XLI. 298. 
 
 See Deed, 71 — 99. 
 
 RESERVED LANDS. 
 See Public Lots. 
 
 RESIDUARY LEGATEE. 
 See ExECTJTOKS, &o., 44, 66. 
 
 REVENUE LAWS. 
 
 1 . When property has been seized and libeled by a collector of customs, 
 for a breach of the IJ. S. revenue laws, it is to be considered in the custody 
 of the law, until the claimant obtains the possession by order of the Court. 
 Barnes v. Taylor, xxix. 514. 
 
 2. Therefore, a demand made upon the collector, by the marshal holding 
 an order of restoration, and a refusal by the collector to deliver the property, 
 would not prove a conversion. Barnes v. Taylor, xxix. 514. 
 
 3. In such case, a portion of the property was abstracted, while thus in the 
 custody of the law, and the claimant obtained an order for the restoration of 
 the whole, and actually received possession of the part which remained : — 
 Held, he could not maintain trover against the collector for the abstracted 
 part ; but his remedy should be sought in the same Court which ordered the 
 restoration. Barnes v. Taylor, xxix. 514. 
 
 REVERSION AND REVERSIONERS. 
 
 1. Though the reversioner regained possession, by wrong, of land which was 
 under lease, yet, he may maintain trespass against a mere stranger to the 
 lease who has invaded his possession. Bollins v. Clay, xxxiii. 132. 
 
 2. Reversioners, entitled to land only upon the determination of a life 
 estate, have no right to authorize the cutting, (during the life estate^) of trees 
 standing upon the land. Simpson v. Bowden, xxxiii. 549. 
 
EEVIEW. 503 
 
 3. A., having an estate for life in certain premises, conveyed them, by deed 
 of warranty, to B., who continued in possession over twenty years : — Held, 
 that, at common law, the remainder man or reversioner, having no right to 
 immediate possession, cannot lose his title by adverse possession ; and that, 
 during the continuance of the particular estate, he is not bound to enter to 
 defeat a wrongful possession ; also, that the statute is in accordance with 
 the common law in this respect ; and also, that the estate of the tenant, un- 
 der the deed, is a life estate ; and that he would not, by the common law, be 
 entitled to compensation for any improvements. Pratt v. Churchill, xiii. 
 471. 
 
 4. Where the reversioner or remainder man has no right of entry or pos- 
 session, the seizin of the tenant, while a particular estate continues, is not 
 adverse. Pratt v. Churchill, XLii. 471. 
 
 , REVIEW. 
 
 1. A review of the judginent and proceedings on a petition for partition 
 can be granted only upon the application of a party to the former process, or 
 of one representing the interest of a party. A person, interested in the estate 
 divided, cannot become a party to the proceedings after the partition has been 
 ordered, and the proceedings have been finally closed. Elwell v. Sylvester, 
 XXVII. 536. 
 
 2. Where a petition for a review of the judgment and proceedings on a 
 petition for partition has been presented in the name of one as guardian, and 
 in behalf of certain minors, and notice has been ordered thereon, and the 
 opposing party has appeared, it cannot be amended so as to make the minors 
 the petitioners by such person, as their guardian. Eliuell v. Sylvester, xxvii. 
 536. 
 
 3. A review wUl be granted where a judgment has been recovered in viola- 
 tion of a contract between the parties. Hohbs v. Burns, xxxiii. 233. 
 
 4. But where a judgment creditor will remit so much of the judgment as 
 he ought to have credited in payment, or will indorse that amount as paid 
 upon the execution, there will be no occasion to grant a review. Hobbs v. 
 Burns, XXXIII. 233. 
 
 5. Where a petition for review alleged that the judgment was obtained by 
 default, which was occasioned by mistake, and without fault of the petitioner, 
 and also stated the circumstances under which it took place, without mention- 
 ing the names of the witnesses, by whom the petitioner expected to prove the 
 circumstances, the petitioner was permitted to amend his petition, against 
 objection, by inserting the names of such witnesses. Hashell v. Hazzard, 
 XXXIII. 585. 
 
 6. Under R. S. of 1841, c. 123, § 4, a notice, allowing such time as the 
 law prescribes for parties in other cases, and returnable when the respondent 
 may be heard, whether at the same time or another, is sufficient. Colby v. 
 Dennis, xxxti. 9. 
 
 7. Under the Act of 1852, the granting of writs to review judgments 
 against certificated bankrupts is not at the discretion of the Court ; but the 
 statute is imperative as to all cases coming within its purview. Colby v. 
 Dennis, xxxti. 9. 
 
504 REWARD. 
 
 8. It operates on remedies only and not on rights, and is, therefore, not 
 liable to the charge of unconstitutionality. Colby v. Dennis, xxxvi. 9. 
 
 9. It allows no limitation to the time within which the review may be 
 sought. (Jolly V. Dennis, xxxvi. 9. 
 
 10. It was repealed by the Act of 1853, but the repeal excepted all actions 
 pending, within which were embraced petitions for review. Golly v. Dennis, 
 XXXVI. 9. 
 
 11. Judgment on a review will be rendered, as the merits of the case, upon 
 law and evidence, may require, without any regard to the former judgment, 
 except as provided in R. S. of 1841, c. 124, § § 12 and 13. Dunlap v. 
 Burnham, xxxvill. 112. 
 
 12. Where the party against whom a judgment has been rendered, on 
 review obtains a verdict, the judgment rendered on that verdict is a substitute 
 for the former judgment, and thereby makes the latter a nullity. Dunlap v. 
 Burnham, xxxviii. 112. 
 
 13. Where the defence to an action failed because evidence of the contents 
 of a document was admitted, the loss of the original not having been properly 
 established, the fact that the document was subsequently found is not a suf- 
 ficient cause for a review. Carpenter v. Sellers, xxxviii. 427. 
 
 14. In petitions for partition, a review may be granted by law, whenever 
 the Court deem it reasonable and for the advancement of justice. Willur v. 
 
 ' Dyer, xxxix. 169. 
 
 15. Where, in such process after final judgment, it was discovered that the 
 commissioners had made a mistake in their division: — SeZci, that a review 
 should be granted. Wilbur v. Dyer, xxxix. 169. 
 
 16. If, in replevin, the defendant reviews the action, and reduces the dam- 
 ages recovered against him, he is the prevailing party and entitled to costs of 
 review. Dodge v. Beed, XL. 331. 
 
 17. The remedy for a mistake, in casting interest upon a note, is by peti- 
 tion for review. Starbird v. Eaton, xiri. 569. 
 
 18. A part}', who sufiered judgment by default in the original suit, cannot 
 have judgment reversed by vreit of error, upon the ground that the notes, on 
 which the judgment was based, were fraudulently attested, after having been 
 delivered to the payee. His remedy, if any he has, is by review. Starbird 
 V. Eaton, xlii. 569. 
 
 See Amendment, 28. 
 Exceptions, 42. 
 
 REWARD. 
 
 A reward, promised by a jailer for information whereby a prisoner, who had 
 escaped from his custody, might be re-captured, cannot be recovered by one 
 who gave the required information, but assisted in the escape, and withheld 
 this fact at the time the reward was ofiered. Hassan v. Doe, xxxviii. 45. 
 
BIGHT OF ENTRY.— EIOT.—EIPAEIAN BIGHTS. 505 
 
 RIGHT OF ENTRY AND RE-ENTRY. 
 
 The right of re-entry for a breach of condition in a conveyance of land 
 pertains only to the grantor and his legal representatives. It is not included 
 among the rights mentioned in R. S. of 1841, c. 94, § 1, and cannot be taken 
 on execution. Bangor v. Warren, xxxiv. 324. 
 
 See Deed, 12. 
 
 Seizin, &c., 1. 
 
 RIOT. 
 
 1. In a criminal prosecution for a riot, it is no defence that two persons 
 only were engaged in the illegal physical fact, if a third person was aiding 
 and abetting them at the time, by his presence. State v. Straw, xxxiii. 
 554. 
 
 2. An allegation that the defendant and others, being assembled, did per- 
 form a described unlawful act, in a violent, tumultuous and riotous manner, 
 to the terror and disturbance of the people, sufficiently charges a riot. State 
 V. Boies, xxxiv. 235. 
 
 3. To obstruct and break up a justice's court, in a violent and tumultuous 
 manner, to the disturbance and terror of the people, is an unlawful act, 
 whether the person acting as justice was or not commissioned. State v. Boies, 
 XXXIV. 235. 
 
 RIPARIAN RIGHTS. 
 
 1. If one person had acquired lawful right to float his logs over the land of 
 another, without his consent, through an artificial channel made by the latter, 
 and is resisted and obstructed in the use of it, by the owner of the land, and 
 contracts to pay him a sum of money for the removal of such obstruction, 
 and for the permission to float his logs, such contract is unlawful and void. 
 Dwinel v. Barnard, xxviii. 554. 
 
 2. Should a person obstruct the flow of the waters of a river or stream 
 over their accustomed bed, so that they could not be used as formerly, for 
 boating, floating logs, &c., and should turn them into a new channel, he would 
 thereby authorize the public to use them in the new channel, a^sithey had 
 used them in their former channel. Dwinel v. Barnard, xxTlli. 554. 
 
 3. But if a person without right should open a sluice or channel, on his own 
 land, and thereby divert the waters of a stream, river or lake, from their 
 natural and accustomed course, without causing any obstruction elsewhere, 
 the public would not thereby become entitled to their use over his land. The 
 public would not be entitled to enter upon his land, and to use the waters in 
 his channel, canal, or sluice, made, perhaps, for the purpose of operating 
 machinery, because some other person had obstructed the flow and egress of 
 
 64 
 
506 RULES OF COURT. 
 
 the waters, from a distant point of such, stream, river or lake. Dwinel v. 
 Barnard, xxtiii. 554. 
 
 4. Although the law may not require the lapse of any particular time, to 
 authorize the inference of a dedication to the public for use, there must be 
 evidence that the owner offered it, and designed to do so, for public or com- 
 mon use. Divinel v. Barnard, xxviii. 554. 
 
 5. To establish a toll, the channel, way, passage, or other easement, must 
 be exposed and offered for the use of all who may have occasion to use it, for 
 a settled and established compensation. It must have become such a common 
 channel, way, or passage, by the consent or act of the owner, that he cannot 
 maintain trespass against any person, who may use it, paying the established 
 toU. Dwinel v. Barnard, xxviii. 554. 
 
 6. Riparian proprietors do not have the entire interest in the waters of a 
 river, but the whole community have rights therein, which entitle them to reg- 
 ulate its public use ; and these rights may be exercised by the Legislature as 
 the agents of the public. Moor v. Veazie, xxxi. 360. 
 
 7. If, in improving the navigation of the Penobscot river, under the Act of 
 July 30, 1846, it becomes necessary to build a dam, which will have the 
 effect of preventing the passage of boats, rafts, &c., no damages can be re- 
 covered against the grantee, except by riparian proprietors upon whose land 
 the dam is actually constructed. The presumptions will always be, that such 
 dams are necessary, and that they were erected in good faith. Moor v. Veazie, 
 XXXI. 360. 
 
 8. When the space between high and low water is in part or wholly hare, 
 passengers may pass over the shore without hindrance, and without liability 
 for damages to the riparian proprietor. State v. Wilson, xlii. 9. 
 
 9. The occupation of a navigable river with logs can give no rights against 
 the riparian proprietors, unless such occupation, during its continuance, oc- 
 casioned injury or damage. Brown v. Blade, xliii. 443. 
 
 See Aquatic Rights. 
 
 COKPOBAIION, 20. 
 
 RULES OF COURT. 
 
 1 . The present rules of the Court, and for chancery practice are found in 
 Vol. XXXVII. 567, et seq. 
 
 2. The 34th rule of the Supreme Judicial Court does not authorize the in- 
 troduction of office copies of deeds as evidence, when " the realty" is not the 
 subject matter of the suit. Hutchinson v. Ghadbourne, xxxv. 189. 
 
 3. The :26th rule of the Court is applicable to civil cases only. State v. 
 McAloon, XL. 133. State v. Holhs, xxxix. 212. 
 
 4. By the 21st rule, all objections to a report of referees.are required to be 
 in writing ; without which, the Court is precluded from considering them. 
 Mayberry v. Morse, xliii. 176. 
 
 See Abatement, 28. Evidence, 25. 
 
 Bills, &c., 161. Pleading, 21. 
 
 DowEE, 54. Pbactice, 102 — 105. 
 
SALE. 507 
 
 RISK. 
 See Sale, 25. 
 
 SABBATH. 
 See Lobd's Day. 
 
 SALE. 
 
 I. DELIVERY. 
 
 IL CONSTRUCTION AND TERMS OF SALE. 
 
 III. WHEN VOIDABLE. 
 
 IV. SPECIAL SALES. 
 
 V. SALE UNDER LEGAL PROCESS. 
 VL EVIDENCE. 
 
 For Sales for Taxes, See Tax. 
 
 L DELIVERY. 
 
 1. An absolute sale of personal property cannot be legally proved in a 
 court of law to have been made only to secure the purchaser for liabilities 
 assumed, and be good against the creditors of the vendor. Richardson v. 
 Kimball, xxviii. 463. 
 
 2. Such sale will transfer all the right and interest of the vendor to the 
 purchaser, although the property was under attachment at the time of the 
 sale. Richardson v. Kiinball, xxviil. 463. 
 
 3. If, by reason of an attachment of personal property, a purchaser of it 
 from the debtor cannot receive an actual possession, a symbolical delivery of 
 it will be sufficient. Wheeler v. Nichols, xxxii. 233. Vining v. Gilbreth, 
 xxxix. 496. 
 
 4. A purchase of personal property, made by a debtor with his own money 
 and for his own benefit, exposes the property to his creditors, although the 
 bill of sale may have been made to a third person, for whom he pretended to 
 purchase, and although the vendor may have supposed that he was selling to 
 such third person. Godding v. Brackett, xxxiv. 27. 
 
 5. One, having purchased and paid for a specified quantity of an article, 
 acquires no title to it, until separated from the residue. Stone v. Peacock, 
 XXXV. 385. 
 
 6. Until a delivery, actual or constructive, the claim of a vendee rests in 
 contract, for the breach of which the remedy is by action. Stone v. Peacock, 
 XXXV. 385. 
 
 7. In the sale of personal property, delivery is essential to its validity, as 
 against every one but the vendee. Vining v. Gilbreth, xxxix. 496. 
 
508 SALE. 
 
 8. But where the article is ponderous, a symbolical or constructive delivery 
 will be sufficient. Vining v. Gilbreth, xxxix. 496. 
 
 9. Thus, the sale of a shop will be effectual against creditors by the deliv- 
 ery of its key, and that, too, at a place distant from the' shop sold. Vining 
 V. Gilbreth, xxxix. 496. 
 
 n. CONSTKUCTION AJSTD TERMS OF SALE. 
 
 (a) Upon condition. 
 
 (b) When peopebxy passes. 
 
 (c) yALIDITY OP SAIiE, AND LIAEILITT OP PARTIES. 
 
 (d) Wakeantt. 
 
 (a) Upon condition. 
 
 10. A contract, signed by a party upon receiving the possession of personal 
 property, and containing his promise to pay for the same, and also an agree- 
 ment that the property shaU remain the property of the other party till the 
 payment should be made, is not a baUment, but a conditional sale. Bryant v. 
 Crosby, xxxvi. 562. 
 
 (b) When property passes, 
 
 11. To convey that which constitutes a part of the real estate, but which, 
 by a severance may become a chattel, so as to be effectual against those who 
 are not excepted in the statute, the same formalities are required as to convey 
 land, unless a severance first takes place. Trull v. Fuller, xxTiii. 545. 
 
 12. In a sale of chattels for ready pay, the seller may waive the ready pay, 
 and, by delivery to the purchaser, part with the property. Mixer v. Gooh, 
 XXXI. 340. 
 
 13. Testimony, that the plaintiff made a sale of goods to the defendant, at 
 a stipulated price, and charged them, (in his presence,) in account ; that noth- 
 ing was said as to the length of the credit ; that defendant did not take the 
 goods, nor order them to be forwarded, will not sustain an action for the price 
 of the goods, although the plaintiff forwarded them by express to the city of 
 the defendant's residence ; there being no proof that he received them. Sack' 
 ett V. Lowell, xxxii. 164. 
 
 14. The title to goods will pass by a sale, without delivery from the true 
 owner, though, at the time of the sale, they are in the tortious possession of 
 a third person claiming them. Gartland v. Morrison, xxxii. 190. 
 
 15. The manufacture of an article, pursuant to the order of a customer, 
 does not transfer the title. Moody v. Brown, xxxiv. 107. 
 
 16. Neither does the tender of the article, when so manufactured. Nor 
 leaving it with the customer, against his will. But there must be an accept- 
 ance, either express or implied. Moody v. Brown, xxxiv. 107. 
 
 17. If it be not shown that it was the intention of the parties to make the 
 sale absolute and complete, the property does not pass, so long as any act up- 
 on it remains to be done by them. Stone v. Peacock, xxxv. 385. 
 
 18. A purchase of growing crops, though paid for, passes no title against 
 the creditors of the vendor, until possession or delivery be had. Stone v. 
 Peacock, xxxv. 385. 
 
SALE. 509 
 
 19. Unless such possession and delivery be had, prior to the death of the 
 vendor, and to the issuing of a commission of insolvency upon his estate, the 
 title is in the administrator in trust for creditors. Stone v. Peacoch, xxxv. 
 385. 
 
 20. The sale and delivery of a chattel in an unfinished state, but which, by 
 agreement of parties, is left in the control of the vendor to finish, is sufficient 
 to vest the property, after its completion, in the vendee, as against creditors. 
 Bartlett v. Blake, xxxvii. 124. 
 
 21. A bargain for personal property of more value than thirty dollars, vs^ith- 
 out any delivery, or any thing in earnest to bind it, or part payment, or some 
 sort of memorandum of it, in -writing, signed by the party with whom the 
 bargain was made, does not afiect the title. Head v. Ooodioin, xxxyii. 181. 
 
 22. A grant of goods, which do not belong to the grantor, at the time of 
 the ^ant, is void. And, if the grantor subsequently acquire title, it requires 
 some new act on his part, evidential of executing the sale, to transfer the 
 title to the grantee. Head v. Goodwin, xxxvii. 181. Pratt v. Chase, xi. 
 269. 
 
 23. Where A. sold one-half of a chaise to which he had no title, and after- 
 wards purchased the chaise, and the same night delivered it to the custody of 
 him to whom he had sold one-half of it, without any avowal that the delivery 
 was to effectuate the former sale, this was not such a new act as to transfer 
 the property. Head v. Goodwin, xxxvii. 181. 
 
 24. Where the owner of a large quantity of corn in bulk sells a certain 
 number of bushels therefrom and receives his pay, and the vendee takes away 
 a part, the property in the part sold vests in the vendee, although it is jiot 
 measured or separated from the heap. Waldron v. Chase, xxxvii. 414. 
 
 25. Such property, left in the charge of the vendor, remains at the risk of 
 the vendee. Waldron v. Chase, xxxvii. 414. 
 
 26. Where the heap, in which such property was left, was mostly destroyed 
 by fire, the owner is not liable for any part of that saved, in assumpsit by the 
 vendee, without some evidence from which a promise may be implied. Wald- 
 ron V. Chase, xxxTll. 414. 
 
 27. Where the owner of goods, living and having his place of business in 
 Massachusetts, sends his clerk into this State to obtain orders, and a memo- 
 randum is here given to him for goods of a greater value than thirty dollars, 
 which he agrees shall be supplied, and which are subsequently sent by the 
 owner, the sale is not perfected until the owner has put them up and actually 
 parted with their possession. Banehor v. Gilley, xxxviii. 553. 
 
 28. Under such circumstances the sale is in Massachusetts ; and whether 
 the articles could be lawfully sold must depend upon the laws of that State. 
 Banehor v. Cilley, xxxviii. 553. 
 
 29. A sale' of personal property and a receipt acknowledging payment, 
 with delivery of a portion, do not necessarily transfer the title to the whole 
 property sold. The intention of the parties in the delivery is to govern, which 
 question is for the jury. Pratt v. Chase, xl. 269. 
 
 (c) Validity of sale, and liability of parties. 
 
 30. If a bill of sale is in its form absolute, and is made without any other 
 consideration than to secure the purchaser for liabilities assumed, it is still 
 valid except as to the creditors of the vendor. And such sale will transfer 
 
510 SALE. 
 
 all the right and interest of the vendor to the purchaser, although the property 
 was under attachment at the time of sale. Richardson v. Kimball, xxvm. 
 463. 
 
 31. Although a bill of sale he made on the Lord's day, one not a party to 
 the sale, and who has no interest in the property, cannot prevent a recovery 
 by the purchaser, by showing that he violated the statute in acquiring the 
 title. Richardson v. Kimball, xxvm. 463. 
 
 32. If one wrongfully sell the plaintiff's goods, the receipt of money from 
 him by the plaintiff, on account of such goods, would not be a ratification of 
 the sale, if the plaintiff would have had a right, without ratifying the sale, to 
 receive the money. White v. Sanders, xxxii. 188. 
 
 33. The sale of an article, delivered and carried away, may be valid, although 
 the price remains to be ascertained by an admeasurement at another stipulated 
 time and place. And the admeasurement, when so made, although differing 
 from one made at the time and place of delivery, will control in determining 
 the price. Gushman v. Holyolte, xxxiv. 289. 
 
 34. Where the qiiantity of logs sold was to be ascertained by the survey of 
 an agreed surveyor, if the purchaser should desire it, such desire may he 
 inferred from the fact that the purchaser procured such survey, although 
 without notifying the seller. Gushman v. Holyolte, xxxit. 289. 
 
 35. Where saw-logs were purchased, to be driven to the boom by the 
 purchaser, and to be paid for at the scale there made, and a part of the logs 
 was left by the way upon the intervales and shoals: — Held, that the pur- 
 chaser was not chargeable for any logs so left, if, in the driving, he used such 
 care and diligence as prudent men ordinarily use in their own affairs. Gush- 
 man V. Holyolce, xxxiv. 289. 
 
 36. A sale of goods may be valid between the vendor and vendee, though 
 made with a design by both of them to defraud the creditors of the vendor. 
 Thompson v. Moore, xxxvi. 47. 
 
 37. In a suit by the vendee, for the value of the goods, against a third 
 person who had appropriated them to his own use, the plaintiff's fraudulent 
 design in the purchase cannot be set up in defence. Thompson v. Moore, 
 
 XXXVI. 47. 
 
 38. The insolvency of the vendor at the time of the sale of a chattel in an 
 unfinished state, his treatment of the property as his own, in completing it 
 after such sale, do not furnish conclusive evidence of a fraudulent sale ; but 
 those indicia of fraud may be explained so as to make the sale valid as 
 against the creditors of the vendor. Bartlett v. Blake, xxxvii. 124. 
 
 39. To render a sale of personal property valid without a written contract, 
 where nothing is paid, there must be a legal delivery. Means v. Williamson, 
 
 XXXVII. 556. 
 
 40. But it is not necessary for such delivery, that the property should pass 
 into the hands of the vendee ; if it is so situated, that he is entitled to, and 
 can rightfully take possession of it at his pleasure, it is suflacient, although, 
 by his request, it may have continued in the custody of the vendor. Means 
 v. Williamson, xxxvii. 556. 
 
 41. A sale and delivery of a quantity of boards sufficient to make a cer- 
 tain number of sugar box shooks, is valid, although no survey was ever made. 
 Rogers v. Humphrey, xxxix. 382. 
 
SALE. 511 
 
 (d) Warranty, and liability of parties. 
 
 42.' A vendor of personal property is not liable for defects of any kind, in 
 the thing sold, unless there be fraud or an express warranty on his part. 
 Kingsbury v. Taylor, xxix. 508. 
 
 43. Where the defendant sold winter rye for seed spring rye, and the plain- 
 tiff thereby lost his crop, an action of deceit will not lie, unless the defendant 
 knew it to be winter rye. Kingsbury v. Taylor, xxix. 508. 
 
 44. An affirmation or representation in relation to the quality of a chattel, 
 at the time of sale or exchange, is considered a warranty, when it is so in- 
 tended by the parties, and is not mere matter of opinion. Sillman v. Wilcox, 
 XXX. 170. Bryant v. Crosby, xi. 9. Bandall v. Thornton, xiiii. 226. 
 
 45. If the seller represent the article to be sound, when he knows that it is 
 unsound, and the parties rely on that representation as a warranty, the seller 
 is liable. And the purchaser may elect to pursue his remedy, either in tort 
 or assumpsit. Hillman v. Wilcox, xxx. 170. 
 
 46. The sale of personal property, in the possession of the vendor, at a 
 fair price, raises a warranty of title. Huntingdon v. Hall, xxxvi. 501. 
 
 47. Aliter, if the property be not in possession of the vendor ; when, if 
 there be no assertion of ownership in him, no implied warranty of title arises. 
 In such case, the maxim, caveat emptor, applies. Huntingdon v. Hall, 
 XXXVI. 501. 
 
 48. A warranty, to be effectual, must be intended as such by the parties ; 
 hut it is sufficient, if the words used implied an undertaking, on the part of 
 the owner, that the thing sold was what it was represented to be. Bryant 
 V. Crosby, xi. 9. Bandall v. Thornton, xliii. 226. 
 
 49. No expression of opinion, however strong, would import a warranty. 
 Bryant v. Crosby, XL. 9. 
 
 50. It is not essential that the word "warrant," or any precise form of ex- 
 pression be used to create an express warranty ; but if the vendor, at the 
 time of the sale, affirm a fact as to the essential qualities of his goods, as an- 
 inducement to the sale, in clear and distinct terms, and the vendee purchases 
 on the faith of such affirmation, that wiU. constitute an express warranty. 
 Bandall v. Thornton, xliii. 226. 
 
 51. The certificate of a master carpenter, as to the capacities of the ship, 
 is to be taken as matter of description, and not a warranty, unless so intended 
 by the parties. Bandall v. Thornton, xliii. 226. 
 
 ni. WHEN VOIDABLE. 
 
 (a) By vendor. 
 
 (b) By vendee. 
 
 (a) By vendor. 
 
 52. A vendor, who, by the fraud of the other party, has been induced to 
 part with his property, may rescind the contract within a reasonable time, and 
 reclaim his property. Emerson v. McNamara, xli. 565. 
 
 53. Such contract is voidable only ; and, in order that the vendor may re- 
 claim his property, or recover its value, he must first return, or tender, what 
 he received in payment therefor, unless payment was made by the note of the 
 vendee. Emerson v. McNamara, xli. 565. 
 
512 SALE. 
 
 54. And the return, or tender, must be made before the commencement of 
 the suit. Emerson v. McNamara, xxi. 565. 
 
 See CoNTKACT, 42 — 52. 
 
 fb) By the vendee. 
 
 54. Where one, though without fraud, sells propertywith a warranty of itsi 
 quality, the vendee may rescind the contract, if the property be not of the 
 quality warranted. Marston v. Knight, xxix. 341. 
 
 55. If a party would rescind a contract, obtained by fraudulent representa- 
 tions, he must restore whatever he received under it. Tisdcde v. BucJcmore, 
 XXXIII. 461. » 
 
 56. If a contract, though not signed by the vendor, describe the property 
 as "in good order and condition," such description is equivalent to a repre- 
 sentation; and, if he knew it to be untrue, at the time of making it, wUl 
 vacate the contract. Bryant v. Crosby, xxxvi. 562. 
 
 IV. SPECIAL SALES. 
 
 57. In relation to a sale by the Land Agent, of property belonging to the 
 State, which he was authorized to make only upon certain prescribed public 
 notifications, the Legislature may ratify the sale and confirm the conveyance, 
 although the prescribed notifications had not been given. Hodgdon v. Wight, 
 XXXVI.. 326. 
 
 58. Where, on failure of the shareholders in an incorporated company to 
 pay the legal assessments upon them, the statute authorized a sale of the 
 shares at auction, under an order from the directors to the treasurer, upon his 
 giving the notices required, and a right to recover of the corporators the 
 balance of assessment which may remain unpaid, a sale made by the treasurer, 
 under the authority of a committee appointed by the directors, is illegal and 
 void. York & G. B. B. Go. v. Bitchie, xl. 425. 
 
 59. The directors cannot delegate their powers in such cases. York & G. 
 B. B. Go. V. Bitchie, xl. 4^5. 
 
 60. Nor can such a sale be upheld under an order from the directors in the 
 alternative. It must be absolute. York & G. B. B. Go, v. Bitchie, xi. 425. 
 
 Y. SALE UNDER LEGAL PROCESS. 
 
 61". A sale of goods, made by an oificer on execution, must be regarded as 
 a legal transfer of the property, although he may not have kept it four days 
 after the taking, and before the sale. Bichardson v. Kimball, xxvili. 463. 
 
 62. A sale of a vessel by an officer, on execution, conveys nothing but the 
 vessel as it existed at the time of the sale. Bichardson v. Kimball, xxviii. 
 463. 
 
 63. No title to personal property can be acquired by the purchaser, at a 
 sale on execution, subject to a prior attachment. Fuller v. Field, xxxix. 
 297. 
 
 See Execution, 103, 104. 
 
SALVAGE. — SCHOOLS. 513 
 
 VI. EVIDENCE. 
 
 64. In an action for goods sold and delivered, proof that the goods were 
 purchased by defendant of the plaintiffs, as a partnership, known by their 
 style and name ; that a bill of goods was made and delivered to the defend- 
 ant, who fully examined it, and made no objection thereto ; and that the 
 goods were delivered on board a vessel by him designated ; is sufficient to 
 authorize a verdict for the plaintiff. Wight v. Stiles, xxix. 164. 
 
 65. If a ^VTitten contract, for the bailment of property, contain a recital 
 that the same, for a valuable consideration, was previously sold, transferred 
 and delivered by him to the bailor, it is evidence that such previous contract 
 was executed, and the title to the property passed to the bailor, although por- 
 tions of it were crops not harvested. Bryant v. Crosby, xx. 9. 
 
 SALVAGE. 
 
 1. Salvage can only be obtained in courts of admiralty jurisdiction. Pike 
 V. Balch, XXXVIII. 302. 
 
 2. Where one claims title to property under an unlawful sale, he cannot 
 afterwards claim possession against the owner for disbursements made and 
 services rendered in saving the property. Pilie v. Balch, xxxviil. 302. 
 
 SCHOOLS. 
 
 1. The certificate of a majority of the superintending school committee, 
 produced by the school teacher to the agent employing him, is valid under 
 R. S. of 1841, c. 17, although that majority did not act together in the ex- 
 amination. Stevens v. Fassett, xxvii. 266. 
 
 2. If one, over twenty-one years of age, voluntarily attends a town school, 
 and is received as a scholar by the instructor, he has the same rights and 
 duties, and is under the same restrictions and liabilities, as if under that age. 
 Stevens v. Fassett, xxvii. 266. 
 
 3. When a scholar, in school hours, intrudes himself into the instructor's 
 desk, and refuses to leave it on the request of the instructor, such scholar 
 may be lawfully removed by the instructor. And, for that purpose, he may 
 immediately use such force, and call to his assistance such aid from any other 
 person, as is necessary to accomplish the object, without the direction or 
 knowledge of the superintending school committee. Stevens v: Fassett, 
 xxvii. 266. 
 
 4. The penal statute of 185,0, c. 159, art. 10, § 13, for the protection of 
 schools, is applicable to private schools regularly established and in operation 
 for instruction in the art of writing. State v. Leighton, xxxt. 195. 
 
 See CoNSTiTiTTioNAL Law, 27, 28. 
 65 
 
514 SCHOOL DISTRICT. 
 
 SCHOOL DISTKICT. 
 
 1. It is not essential that the application for a warrant from the selectmen 
 to call a school district meeting, should be recorded or produced ; or that the 
 application should be recited in the warrant. That such application had been 
 made, may be proved by parol. Soper v. Livermore, xxviii. 193. 
 
 2. Where it appeared that there was no school house in the district, a re- 
 turn, upon the warrant to call the meeting, made by the proper person, that 
 he had notified, &c., " by posting up four copies of this warrant, one on the 
 sign post at the confluence of B. and F. roads, one on the corner of the black- 
 smith shop, one on the Methodist meeting house, and one in the post office, 
 all of which places are in said district," is sufficient under E,. S. of 1841, c. 
 17, § 24. Soper v. Livermore, xxvill. 193. 
 
 3. Where, at a legal school meeting, the district, after having voted to 
 build a school house, and having chosen a building committee to build the 
 house, andi" ascertain the probable sum of money that such a house can be 
 built for," &c., voted to "raise a sufficient sum to defray all the expenses in- 
 cident to the building of the house ;" and subsequently, after having buUt the 
 house, reported, at an adjourned meeting, the amount expended, which report 
 was accepted ; and thereupon the clerk certified to the assessors the amount 
 reported: — Held, it was sufficient to authorize the assessment and collection 
 of the amount. Soper v. Livermore, XXTIII. 193. 
 
 4. A scrupulous observance of the most approved formalities, in the pro- 
 ceedings of our numerous and various municipal corporations, is not to be 
 expected. Per Whitman, C. J. Soper v. Livermore, xxtiii. 193. 
 
 5. The collector of taxes of a town has the same powers, and is under the 
 same obligations, to collect school district taxes, as in case of town taxes. 
 Smyth V. Titcomb, xxxi. 272. 
 
 6. And the town treasurer, to enforce their collection. Smyth, v. Titcomb, 
 xxxr. 272. 
 
 7. In discontinuing and re-constructing its school districts, a town may 
 make its action to be conditional, dependent upon the consent of the districts 
 to be afiected. Smyth v. Titcomb, xxxi. 272. 
 
 8. And such conditional action is not a delegation of authority. Smyth v. 
 Titcomb, XXXI. 272. 
 
 9. By the Special Act of 1848, c. 140, the village school district in Bruns- 
 wick was confirmed and legalized. Smyth v. Titcomb, xxxi. 272. 
 
 10. If a school district have legally voted to raise a sum of money, for 
 purposes within their authority, and the assessors assess the tax, such assess- 
 ment is not rendered inoperative by the omission of the clerk to certify the 
 vote to the assessors. Smyth v. Titcomb, xxxi. 272. 
 
 11. A school district has no authority to raise money for fuel, or to make 
 itself liable for it. Estes v. Bethel, xxxiii. 170. 
 
 12. A vote to hire money, passed by a school district at a meeting of 
 which no pi'evious notice had been given, creates no liability upon the district 
 to repay money borrowed in pursuance of such vote. Lander v. Smithfield, 
 XXXIII. 239. 
 
 13. A vote subsequently passed, at a legal meeting, "to pay the debts due 
 from the district," is no admission of indebtedness for money hired under the 
 vote of the unauthorized meeting. Lander v. Smithfield, xxxiii. 239. 
 
SCHOOL DISTRICT. 515 
 
 14. A school district, not formed by the town in pursuance of statutoiy 
 provisions, has no corporate powers. Tucker v. Werdioorih, xxxv. 393. 
 
 15. The appointment of an agent, by the town, for a school district which 
 has no existence, will not create one. Tucker v. Wentworth, xxxv. 393. 
 
 16. An assessment of taxes, by the assessors of a town, pursuant to the 
 vote of such a district, raising money for any purpose, is illegal. Tucker v. 
 Wentworth, xxxv. 393. 
 
 17. Any inhabitant of such a district, whose property shall be distrained 
 by virtue of the assessors' warrant to collect such tax, may recover its value 
 of the assessors. Tucker v. Wentworth, xxxv. 393. 
 
 18. Two or more districts uniting, according to the provisions of the Act of 
 1847, c. 25, § 3, do not thereby abolish the original districts, or create a new 
 one. It merely authorizes the several districts to use a portion of their school 
 money, in concert, for greater facility in the instruction of their more advanc- 
 ed scholars, without impairing the rights or obligations of the original dis- 
 tricts to maintain their own schools. Tucker v. Wentworth, xxxv. 393. 
 
 19. A school district is not divested of its property in its school house, by 
 an alteration, by the town, of the lines of such district, though, by such alter- 
 ation, their school house is left within the limits of another district. Whit- 
 tier V. Sanborn, xxxviii. 32. 
 
 20. For the removal of such a house, built, under a license, upon the land 
 of another, the owner of the land can maintain no action of trespass, when 
 no unnecessary damage is done to the freehold. And the district, when in 
 actual possession, can authorize a third person to make such removal. Whit- 
 tier V. Sanborn, xxxviil. 32. 
 
 21. But the district, unless its meeting is legally notified, can confer, by its 
 vote, no authority upon a third person to enter on the land of another and re- 
 move a school house therefrom, although they were the owners of the house. 
 Whittier v. Sanborn, xxxviii. 32. 
 
 22. School district meetings must be notified, in accordance with the Act 
 of 1850, c. 193, art. 2, § 5, or in accordance with the vote of the district, at 
 a legal meeting, under § 7, of the same article, to make their proceedings 
 binding. Jordan v. Lisbon, xxxviii. 164. 
 
 23. Whether, after a district, at a legal meeting, authorizes future meet- 
 ings to be called under a notice difi'ering from that required by § 5, a legal 
 meeting might not be called in accordance with § 5, quere. Jordan v. Lis- 
 bon, XXXVIII. 164. 
 
 24. A school district, at a legal meeting, may ratify and confirm proceed- 
 ings of previous meetings, which were not strictly legal. Jordan v. Lisbon, 
 XXXVIII. 164. 
 
 25. A committee chosen at an illegal meeting, by their acts in superintend- 
 ing the building of a school house, cannot make the district liable to pay for 
 it. Jordan v. Lisbon, xxxviii. 164. 
 
 26. Where there is no legal contract on the part of a district to buUd a 
 school house, nor any acceptance of the house, the building of such a house 
 within the limits of the district imposes no legal obligation upon its mem- 
 bers to pay for it. Jordan v. Lisbon, xxxviii. 164. 
 
 27. The proceedings of school districts can be proved only by the record, 
 or a copy thereof, properly authenticated. Parol proof of them is incompe- 
 tent. Jordan v. Lisbon, xxxviii. 164. 
 
516 SCHOOL DISTRICT. 
 
 28. Unless it appears, (under the Act of 1850, c. 193, art. 2, § 12,) that 
 the majority were opposed to raising any sum, or a less sum. than that pro- 
 posed, there is no such " disagreement" as will authorize the town to assess 
 a tax upon the district for the purpose designated. The mere refusal to vote 
 for one sum named will not confer jurisdiction upon the town. Powers v. 
 Sanford, xxxix. 183. 
 
 29. A member of such district, whose property is taken to pay a tax assess- 
 ed by authority of the town, where no " such disagreement" appeared, may 
 recover it back of the town. Powers v. Sanford, xxxix. 183. 
 
 30. Such action would only lie against the district, where it was proved 
 that the tax had been received and applied to the use of its members. Pow- 
 ers V. Sanford, xxxix. 183. 
 
 31. By R. S. of 1841, c. 14, § 56, as amended, the assessors of towns, 
 who are required to assess any tax upon a school district, are liable only for 
 their own personal faithfulness and integrity ; and further liabilities, if any, 
 shall rest solely with such school district. This imposes no responsibility 
 upon the district for errors committed by the town. Powers v. Sanford, 
 XXXIX. 183. Trim v. Charleston, xil. 504. 
 
 32. _A committee of three or more persons, duly appointed by a school 
 district, to superintend the erection of a school house, and laying out and ex- 
 pending the money of the district, if they employ another person to build 
 the house, need not maintain an action in their own names for such services, 
 but it may be brought in his own name. Junkins v. U. S. District, xxxix. 
 220. 
 
 33. A majority of such committee may employ one of their own number for 
 such service, and, unless there is a fraudulent or corrupt dealing, such person 
 may recover, in bis own name, the amount of his claims against the district. 
 Junkins v. U. S. District, xxxix. 220. 
 
 34. Where the district raised a certain sum towards purchasing land and 
 erecting a school house of prescribed dimensions, they can interpose no ob- 
 jection, to a claim made against them under a contract with their committee, 
 that a larger sum was expended by the committee, than that named in the 
 vote. Junkins v. U. S. Di^strict, xxxix. 220. 
 
 35. Nor is it any defence to such claim, that the school house was worth 
 no more than the money voted. Junkins v. U. S. District, xxxix. 220. 
 
 36. Such contractor can only recover for his own services, not for what he 
 has paid to another for his bill against the district. Junkins v. U. S. Dis- 
 trict, XXXIX. 220. 
 
 37. The statute does not prescribe the place where a school house may be 
 purchased, nor the manner in which it ma}' be removed or repaired. Tozier 
 V. Vienna, xxxix. 556. 
 
 38. Where, by the records, the school district officers appear to have been 
 qualified by a magistrate, the presumption is, in the absence of all testimony, 
 that they were made by the proper recording officer. Tozier v. Vienna, 
 XXXIX. 556. 
 
 39. When, by a vote of a district, the selectmen are requested to locate 
 their school house, their acts, under such vote, are recommendatory only. 
 Tozier v. Vienna, xxxix. 556. 
 
 40. A vote to raise money to build a school house is void, if not passed at 
 a legzd meeting of the district. Haines v. Beadfield, xii. 246. 
 
SCHOOL TEACHEE. — SCIRE FACIAS. 517 
 
 41. A tax, based on such illegal vote, and paid under protest, may be re- 
 covered back in an action at law against the school district, to vi^hose benefit 
 it enured. Haines v. Readfield, xli. 246. 
 
 42. A collector's warrant, signed by two selectmen, is illegal. Haines v. 
 Beadfield, xli. 246. 
 
 43. A town is not legally responsible for improper proceedings, willful or 
 otherwise, by the majority of a school district. Trim v. Charleston, H-hi. 
 504. 
 
 44. The provisions of R. S. of 1841, c. 14, § 88, are not applicable to 
 school districts. Trim v. Charleston, xii. 504. 
 
 SCHOOL FUND. 
 See CoEPOEATioN, 5j 27, 28. Tktjstee. 
 
 SCHOOL TEACHER. 
 
 1. A person who instructs a town school, without the statute certificate 
 from the superintending school committee, cannot recover his wages against 
 the town. Jose v. Moulton, xxxvii. 367. 
 
 2. And if, for the year in which such school is kept, no superintending 
 school committee has been chosen, such omission of the town will not aid the 
 plaintiff to recover. Jose v. Moulton, xxxvii. 367. 
 
 3. Nor can such teacher collect his wages from the agent who employed 
 him, although the district itself might not have been originally legally estab- 
 lished in all respects, or such agent might not have been sworn. Jose v. 
 Moulton, xxxvii. 367. 
 
 See ScHoois. 
 
 SCIRE FACIAS. 
 
 1. The remedy for an administrator de bonis non, upon an unsatisfied 
 judgment, recovered by the original administrator, is by scire facias. Debt 
 win not lie. Paine v. Mclntire, xxxii. 131. 
 
 2. It is a general rule, that no defence which he might have taken in the 
 original suit is open to a defendant in scire facias. Smith v. Eaton, xxxYi. 
 298. 
 
 3. Where the obligee in a bond given by the testator has recovered judg- 
 ment for its penalty and execution for such sum as was due, against the 
 executor, within the four years from the time he accepted his, trust, scire 
 facias will not lie after four years, to obtain execution for subsequent install- 
 ments. Pettingill v. Pattarson, xxxix. 498. 
 
518 SEAL AND SEALED INSTRUMENTS. 
 
 4. Scire facias can issue from no Court but the one having possession of 
 the record upon which it is issued. State v. Brown, xli. 535. 
 
 5. It may properly be made returnable to a term of the court holden for 
 the transaction of criminal business. State v. Brown, XLI. 535. 
 
 6. A writ of scire facias on a recognizance, referring to no charge against 
 the defendant, and containing no reference to any charge against him in any 
 complaint or indictment, is bad, and insufficient to authorize proceeding to 
 trial. State v. Brown, xli. 535. 
 
 7. A recognizance, conditioned that the defendant should appear in court 
 "from day to day during the term," does not furnish a foundation for a writ 
 of scire facias. State v. Brown, xli. 535. 
 
 8. A party cannot be required to come into court, actually in session, to 
 answer " such matters and things as shall be objected against him," without 
 any specific charge being alleged or set forth. State v. Brown, xli. 535. 
 
 See Recognizance, 16, 24. 
 TarsTEE Pkocess, 8, 9, 70. 
 
 SEAL AND SEALED INSTRUMENTS. 
 
 1. It is not necessary that a magistrate's warrant, issued upon a penal 
 statute, should be under seal, unless the statute expressly require it. State 
 V. McNally, xxxit. 210. 
 
 2. The affixing of a seal, though it be not mentioned in the instrument, 
 constitutes a deed. Wing v. Chase, xxxT. 260. 
 
 3. The sealing of a contract furnishes of itself sufficient evidence of a 
 consideration. Wing v. Chase, xxxv. 260. Augusta Bank v. JSamllet, 
 XXXV. 491. 
 
 4. A seal has the effect to overcome and control statements, expressly made 
 in the contract itself, that there was no legal consideration. Wing v. Chase, 
 xxxv. 260. 
 
 5. In a criminal prosecution, a warrant, issued by a magistrate, without a 
 seal, is void. State v. Drake, xxxvi. 366. 
 
 6. Where a corporation makes a contract through an agent, who puts to it 
 a seal, it becomes by law the deed of the corporation, though it is not their 
 common seal. Porter v. A. & E. B. B. Co., xxxvii. 349. 
 
 SEARCH WARRANT. 
 
 •See Wakkant. 
 
SEIZIN AND DISSEIZIN. 519 
 
 SEIZIN AND DISSEIZIN. 
 
 I. WHAT IS A GOOD SEIZIN. 
 II. DISSEIZIN, 
 in. EVIDENCE. 
 
 I. WHAT IS A GOOD SEIZIN. 
 
 1. A right of entry is made, by statute a sufficient seizin upon which to 
 maintain a writ of entry. Sargent v. Boberts, xxxiv. 135. 
 
 2. There cannot be two distinct and independent seizins of the same land 
 at the same time. Fut. F. School v. Fisher, xxxiv. 1 72. 
 
 See DowEB, 16, 17, 19, 20, 21, 22, 56, 58, 66. 
 Execution, 87 — 89. 
 Flats, 9, 10. 
 Landlobd and Tenant, 13. 
 
 II. DISSEIZIN. 
 
 (a) What is. 
 
 (b) Who mat be disseized. 
 
 (o) Bights op the disseizob and disseizee. 
 (d) Effect of a disseizin. 
 
 (a) What is. 
 
 3. Disseizin, in order to defeat the operation of the proprietor's deed, must 
 be by occupancy of a part, under a deed of conveyance recorded, or such an 
 open and visible occupancy, that the proprietor may at once be presumed to 
 know the extent of the disseizor's claim and occupation. Foxcroft v. Barnes, 
 
 XXIX. 128. 
 
 4. An occupation according to the provisions of Act of 1821, c. 62, § 6, 
 or R. S. of 1841, c. 147, § 11, does not constitute such a disseizin as would 
 prevent the owner from conveying his land, although, if continued twenty 
 years, it might bar a writ of entry, brought by the owner for possession. 
 Foxaroft v. Barnes, xxix. 128. 
 
 5. Persons, claiming under an officer's sale of an equity of redemption, do 
 not hold by a seizin adverse to that of the debtor. Abbott v. Sturtevant, 
 
 XXX. 40. 
 
 6. The enclosing of land by a fence, though erected beyond the true 
 divisional line, is not a disseizin of the adjoining owner, if it was done through 
 a mistake as to the true line, and if there was no claim to title beyond that 
 line, and if the true owner has not been prevented from occupying his whole 
 land. Lincoln v. Edgecomb, xxxi. 345. 
 
 7. A possession of land, open, notorious, adverse and exclusive, indicates 
 a claim of right, and will constitute a disseizin,*unless controlled or explained 
 by other testimony. Winthrop v. Benson, xxxi. 381. Chadbourne v. Swan, 
 XL. 260. 
 
 8. If one be seized of a tract of land, and another, claiming the same by 
 a registered deed, enters upon a part thereof, his entry does not constitute a 
 
520 SEIZIN AND DISSEIZIN. 
 
 disseizin of the whole, at his election, unless the part so entered upon be con- 
 tinued in his possession. Bohinson v. Brown, xxxii. 578. 
 
 9. By an entry into land and a visible possession of a part of it, by one 
 claiming the same under a registered deed, the true owner is constructively 
 disseized of the whole tract described in the deed. Put. F. School v. Fisher, 
 xxxiT. 172. 
 
 10. But such constructive disseizin would not extend to any part of the 
 land, of which some other person was seized and possessed at the time. Put. 
 F. School V. Fisher, xxxiv. 172. 
 
 11. An open, exclusive and adverse possession of a tract of land by a 
 demandant is not established by proof that no other person than such de- 
 mandant had occupied it for thirty years, and that he had cut wood upon it, 
 and had always fenced portions of it. Frye v. Gragg, xxxv. 29. 
 
 12. Occupation of land by a demandant, in submission to the title of 
 another, will not authorize him to assert a title by disseizin and possession. 
 Frye v. Gragg, xxxy. 29. Gray v. Hutchins, xxxvi. 142. 
 
 13. Before the enactment of R. S. of 1841, a disseizin of the owner of 
 land could only be effected by one holding it adversely to his title. Gray v. 
 Hutchins, xxxvi. 142. 
 
 14. Without actual occupation of some portion of the premises by the 
 grantee under a registered deed, the real owner is not disseized thereby. 
 Put. F. School v. Fisher, xxxviii. 324. 
 
 15. To acquire a title by disseizin, the possession of the tenant or of those 
 under whom he claims, must be proved to have been open, notorious, exclu- 
 sive and adverse to the true owner for twenty years. Ghadhourne v. Swan, 
 XL. 260. 
 
 (b) Who may he disseised, and of what. 
 
 16. The owners of flats beyond one hundred rods, which are subject to the 
 flux and fe-flux of the tide, are liable to be disseized by an exclusive and ad- 
 verse possession, which, continued for twenty years, divests the owner of his 
 title. Glancey v. Houdlette, xxxix. 451. 
 
 1 7. Such rights as are a part of the State sovereignty, conferred for the 
 public good, cannot be lost by disseizin. Treat v. Lord, xiil. 552. Brown 
 v. Black, xiili. 443. 
 
 (c) Bights of the disseizor and disseizee. 
 
 18. A disseizor may surrender his possession to the disseizee, at any time 
 before his disseizin has ripened into a title, and thus end his claim. Win- 
 throp V. Benson, xxxi. 381. 
 
 19. When the title has been perfected, it cannot be conveyed by a parol 
 abandonment or relinquishment. Winihrop v. Benson, xxxi. 381. 
 
 20. Under E. S. of 1841, c. 91, § 1, the title of a grantor to land will 
 pass, though he may be disseized at the time of his conveyance, if he have a 
 right of entry. Put. F. School v. Fisher, xxxiv. 172. Pratt v. Pierce, 
 XXXVI. 448. 
 
 21. The owner of lands, in possession of another, before R. S. of 1841, 
 might make an effectual conveyance of the land, when such possession was 
 not adverse. Gray v. Hutchins, xxxvi. 142. 
 
SET-OFF. 521 
 
 22. Prior to R. S. of 1841, a disseizee of land could make no valid convey- 
 ance. Buclt V. Babcoch, xxxvi. 491. 
 
 23. To a deed, made prior to the R. S. of 1841, by a disseizee, these 
 statutes imparted no new efficiency. Buch v. Babcoch, xxxvi. 491. 
 
 24. A possession open, notorious and exclusive, such as the character of 
 flats will admit, showing a disseizin of the true owner, if less than twenty 
 years, will authorize the disseizor to maintain trespass against a wrongdoer. 
 Glancey v. Sbudlette, xxxix. 451. 
 
 (d) Effect of a disseizin. 
 
 25. A disseizin continued twenty years, uncontrolled or unexplained, is as 
 eifectual to pass the title as a deed would be. Winihrop v. Benson, xxxi. 
 381. Glancey v. Soudlette, xxxix. 451. Ohadbourne v. Swan, xi. 260. 
 
 26. The tenant, having entered under one who disseized the true owner, is 
 not liable to the latter in an action for use and occupation, though he may 
 have promised by parol to pay the rent, unless an entry has been made to 
 purge the seizin. Roxbury v. Huston, xxxix. 312. 
 
 ni. EVIDENCE. 
 
 27. Where the tenant claims title by adverse possession, evidence how the 
 land was run out and monuments established, when he entered upon it under a 
 contract with the owner, is immaterial. Gray v. HutcTiins, xxxvi. 142. 
 
 SERVICE. 
 See WsiTS, &c. 9 — 13. 
 
 SET-OFF. 
 
 I. WHAT CLAIMS MAY BE SET OFF, AND WHEN. 
 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. Repairs made upon a vessel by the owner, after he became the purchaser, 
 cannot be set off against her earnings prior to the purchase. Richardson v. 
 Kimball, xxtiii. 463. 
 
 2. A defendant cannot set off the plaintiff's demand, against a note indors- 
 ed to the defendant, unless the plaintiff had agreed with the defendant to pay 
 him such note, or to receive it upon such demand. Smith v. Ellis, xxix. 
 422. 
 
 66 
 
522 SET-OFF. 
 
 3. Where the plaintiff becomes non-suit, no judgment can be rendered 
 against him upon an account in set-off. Bewail v. Tarbox, xxx. 27. 
 
 4. An account in set-off cannot be allowed, unless the clerk have noted 
 thereon the day upon which it was received and filed. Pond v. Niles, xxxi. 
 131. 
 
 5. In a suit upon a witnessed note, an account, barred by the statute of 
 limitations, but of about the same date with the note, and larger in its amount, 
 cannot be sustained in set-off. Nason v. McGulloch, xxxi. 158. 
 
 6. A note for money, given by the plaintiff to the defendant, may be prov- 
 ed under an account filed in set-off, for money had and received. For that 
 purpose, no amendment of the set-off claim is necessary, though it is allowa- 
 ble. Gragg v. Frye, xxxir. 283. 
 
 7. A debt, due to the defendant from the plaintiff jointly with others, can- 
 not be set off. Adams v. Ware, xxxiii. 228. 
 
 8. Eights to a set-off, in a suit wherein an executor or administrator is a 
 party, are the same that would have existed if all the parties interested had 
 continued in life. Adams v. Ware, xxxiii. 228. 
 
 9. After the death, and insolvency of the estate, of the payee of a note 
 given for land conveyed by a warranty deed, the title to which land had par- 
 tially failed, the maker of the note, in a suit against him by the administrator, 
 is entitled, under the insolvency laws, to set off the breach of the covenant 
 against the note. Morrison v. Jewell, xxxiv. 146. 
 
 ' 10. And that, too, although his claim may not have been filed before the 
 commissioners of insolvency. Morrison v. Jewell, xxxiT. 146. 
 
 11. An indorsee who purchases the note with knowledge of the partial 
 failure of its consideration takes it subject to the same right of set-off. 
 Morrison v. Jewell, xxxiT. 146. 
 
 12. In a trustee process, co-partners, summoned as trustees, and indebted 
 to the principal defendant, may set off a claim due from him to one of the 
 co-partners. Robinson v. Furhush, xxxiv. 509. 
 
 13. For goods belonging to the defendant, but tortiously taken and de- 
 tained by the plaintiff, an account filed in set-off by the defendant^ to the 
 plaintiff's demand, cannot be sustained. Hopkins v. Megquire, xxxv. 78. 
 
 14. In a suit by the indorsee against the maker of a note, a note given by 
 the indorser to the defendant cannot be allowed in set-off, if not mentioned 
 in the defendant's statement of his set-off demands. Hopkins v. Megquire, 
 xxxT. 78. 
 
 15. Where plaintiff received $10, in cash, and it was proved that the 
 defendant paid an order drawn by plaintiff on W. for $26, in favor of P., 
 which order W. refused to accept ; and the plaintiff afterwards, upon learning 
 the fact of payment of the order by defendant, replied " that it was all right ;" 
 Held, that the above items were intended by the parties as payment pro tanto, 
 and not as evidence of set-off. Dodge v. Swazey, xxxv. 535. 
 
 16. A claim in set-off, to be available, must be due and payable at the 
 time of the commencement of the plaintiff's action. Houghton v. Houghton, 
 xxxvii. 72. 
 
 17. But a mere liability as surety, existing at the time, but not discharged 
 till after commencement of the plaintiff's action, cannot be allowed in set-off. 
 Houghton v. Houghton, xxxvii. 72. 
 
 18. In a suit by the administrator of an insolvent estate, a note against 
 
SET-OFF. 523 
 
 the intestate, held by the defendant as indorsee, may be allowed in set-off. 
 Chanter 115 of R. S. of 1841, does not apply in such cases. Ullis v. Smith, 
 XXXVIII. 114. 
 
 19. To an action by an administrator of an insolvent estate, upon a judg- 
 ment which had been assigned by the intestate for security to a creditor, any 
 lawful claims against the intestate, which defendant had at the time of the 
 intestate's death, may be allowed in set-off, after the debt for which the 
 judgment was assigned has been first paid and the costs of the suit. And if 
 the amount in set-off exceeds the balance due in the suit, the defendant is 
 entitled to a judgment for the excess, and to have the same certified to the 
 Probate Court as his claim against the estate. UlKs v. Smith, xxxviii. 114. 
 
 20. An account in set-off must be of such a character, that the record will 
 protect the party against an action relating to the same matter. Stevens v. 
 Blen, XXXIX. 420. 
 
 21 . Where defendant took back a horse he had sold to plaintiff, upon his 
 saying that he would do what was right about it, or would leave it to a third 
 person, and the plaintiff had in fact damaged the horse while thus owning it, 
 in an action between them, such claim for use and damage is not a matter in 
 set-off. Stevens v. Blen, xxxix. 420. 
 
 22. A charge for rent of real estate, where there is no contract as to the 
 price, cannot be sustained in set-off. Sail v. Olidden, xxxix. 445. 
 
 23. A. purchased a lot of demands of B., and gave his notes therefor, with 
 an agreement on his part to use aU proper exertions to collect them without 
 cost to B. ; A. being at liberty to return the demands, with an account at the 
 end of two years to B., who was to repay to A. the balance of purchase 
 money not collected. In an action upon B.'s notes, against B.'s administrator : 
 Held, that the administrator might sustain, in set-off, the claim for the un- 
 collected balance of the demands. Otis v. Ada/ms, xli. 258. 
 
 II. HOW AND WHEN TO BE PRESENTED AND ALLOWED. 
 
 24. The defendant has a right at law, to withdraw an account which he 
 may have filed in set-off, although the putting the set-off before the jury might 
 prove the existence of mutual and open accounts between the parties, and 
 though the withdrawal of it would expose the plaintiff's claim to the statute 
 of limitations. Theobald v. Colby, xxxv. 179. 
 
 25. "Where, in a suit upon several distinct indebtments, a set-off claim is 
 allowed by the jury, the law presumes the amount to have been allowed rata- 
 bly upon each of the indebtments. Franklin Bank v. Cooper, xxxvi. 221. 
 
 26. A surety upon one of such indebtments, has no right to claim that such 
 set-off be applied, by priority, upon that particular indebtment. Franklin 
 Bank V. Cooper, xxxvi. 221. 
 
 27. A defendant, living out of the State, upon whom service is made, after 
 the entry of the action, may seasonably file his claim in set-off on the first 
 day of the term next succeeding the service. Otis v. Adams, xxi. 258. 
 
 m. SET-OFF OF JUDGMENTS AND EXECUTIONS. 
 
 28. If the assignee of an account bring an action in the name of the as- 
 signor, for the whole amount of the account, and the defendant bring a cross 
 
524 SHERIFF. 
 
 action, also, for the full amount of his account, and both actions proceed to 
 judgment ; under R. S. of 1841, c. 115, the judgment debt in the lesser claim, 
 by leave of Court, may be set off pro tanto against the larger ; but the costs 
 of the lesser judgment cannot be set off in further pajTnent of the balance of 
 the larger judgment, without the consent of the assignee. Weils, J., dis- 
 senting. Bartlett v. Pearson, xxix. 9. 
 
 29. The District Court may exercise a discretionary power by ordering or 
 refusing to order judgments of the Court to be set off, when it can be done 
 without a violation of the rights of either party. Bartlett v. Pearson, 
 XXIX. 9. 
 
 30. Where judgments are recovered at the same term, one in favor of A. 
 against B. and sureties, and the other in favor of B. against A., the Court, on 
 motion of B., wUl set off the one against the other. Prince v. Fuller, 
 xxxiT. 122. 
 
 SETTLEMENT. 
 See Paupee. 
 
 SHERIFF. 
 
 1. The law, in many instances, recognizes sheriffs as officers of the Court, 
 and establishes their compensation and that of their deputies, when in attend- 
 ance at its sfissions. Baker v. Johnson, xli. 15. 
 
 2. There is, however, no statute, which, in terms, requires such attendance 
 of the sheriff; and yet, so long and so universally has the custom prevailed for 
 him thus to attend Court, that an omission to do so, without sufficient excuse, 
 would be deemed an absolute dereliction of duty. Baker v. Johnson, xli. 15. 
 
 3. The fees of the sheriff and other executive and ministerial officers in at- 
 tendance, are taxed by the Court. Baker v. Johnson, xli. 15. 
 
 4. The power of sheriffs and their deputies, to serve and execute precepts, 
 is derived from the statute alone. Benson v. Smith, xlii. 414. 
 
 5. Prior to the Act of January 28, 1852, sheriffs and their deputies had no 
 authority to seize and sell mortgaged property as a whole, when a part of it 
 was in a county to which their authority did not extend. Benson v. Smith, 
 XLII. 414. 
 
SHIPPING. 525 
 
 SHIPPING. 
 
 I. 
 
 TITLE. 
 
 11. 
 
 MASTER AND SEAMEN. 
 
 in. 
 
 EIGHTS AND LIABILITIES OF OWNERS, 
 
 IV. 
 
 BILLS OF LADING. 
 
 T. 
 
 CONSIGNMENTS. 
 
 VI. 
 
 FREIGHT, AND CHARTER PARTIES. 
 
 VII. 
 
 IN OTHER RESPECTS. 
 
 I. 
 
 TITLE. 
 
 1. The property in a vessel may be legally transferred -without a bill of sale 
 or other written evidence of it. Richardson v. Kimball, xxtiii. 463. Met- 
 calf V. Taylor, xxxvi. 28. Ghadbourne v. Duncan, xxxvi. 89. Bice v. 
 McLarren, xlii. 157. 
 
 2. But there must be proof of an agreement to sell and purchase, and of a 
 valuable consideration also, when the title is asserted against creditors of the 
 vendor. Richardson v. Kimball, xxtiii. 463. 
 
 3. A delivery of a vessel, in port at the time of sale, is as necessary to 
 perfect the title against creditors, as it is when any other description of per- 
 sonal property is sold. Richardson v. Kimball, xxviii. 463. 
 
 4. Upon the sale or transfer of a vessel from one person to another, the 
 certificates of the registry or enrollment pass to the purchaser. Barnes v. 
 Taylor, xxxi. 329. 
 
 5. They are of no further value to the seller, and, in trover against a third 
 person in whose hands they may be found, he can recover nothing for them. 
 Barnes v. Taylor, xxxi. 329. Mitchell v. Taylor, xxxii. 434. 
 
 6. The property of a vessel passes without the recital of the certificate of 
 her registry or enrollment in the instrument of conveyance. Mitchell v. 
 Taylor, xxxii. 434. 
 
 7. But, unless the instrument of conveyance contain such a recital, no new 
 certificate of registry or enrollment can issue to the purchaser. Mitchell v. 
 Taylor, xxxii. 434. 
 
 8. In the certificate of registry or enrollment, surrendered to the collector 
 of customs, upon the sale of a vessel, the purchaser has no interest. And 
 such papers are of no value to either party. Mitchell v. Taylor, xxxii. 434. 
 
 9. Enrollment at the custom house is evidence, though not conclusive, to 
 show who is the owner and who is the master of the vessel, Jordan v. 
 Young, xxxvii. 276. 
 
 10. The register of a vessel is not of itself evidence of title, except as it 
 is confirmed by auxiliary circumstances, showing that it was made by the 
 authority or assent of the one who is sought to be charged as owner. Brad- 
 bury V. Johnson, xii. 582. 
 
 11. Without such connecting proof, it is not even prima facie evidence to 
 charge a person as owner; and is not conclusive, even with such proof. 
 Bradbury v. Johnson, XLI. 582. 
 
 12. The register is no evidence in favor of a person claiming as owner, and 
 is not legally admissible for that purpose. Bradbury v. Johnson, xii. 582. 
 
526 SHIPPING. 
 
 13. In an action against a person as owner of a vessel, the register, if the 
 oath of ownership was made by himself, is treated as an admission, which 
 may be given in evidence to charge him. Aliter, if the oath was made by 
 another, without his assent. Bradbury v. Johnson, xli. 582. 
 
 See MoBTGAGE, 194, 195. 
 
 II. MASTER AND SEAMEN. 
 
 (a) Of the duty and authobitt op the master as aoent. 
 
 (b) Wages op seamen. 
 
 (c) In other respects. 
 
 (a) Of the duty and authority of the master as agent. 
 
 14. The master of a vessel is the general agent of the owner for certain 
 purposes, but not for selling her, except in case of wreck or other extreme 
 necessity. Johnson v. Wingate, xxix. 404. 
 
 15. When a master of a vessel, in selling it under instructions, exceeds 
 his authority, the principal is not bound. Johnson v. Wingate, xxix. 404. 
 
 16. The master is agent of the owners only so long as he acts for them; 
 and they can discharge him at any time, and put an end to his authority. 
 Jordan v. Young, xxxvii. 276. 
 
 17. Where a voyage is broken up by ungovernable circumstances, the 
 master, acting in good faith for all concerned, and under supreme necessity, is 
 authorized to sell the ship and cargo. Pike v. Balch, xxxviii. 302. 
 
 18. But the master acts for the owners or insurers only because they can- 
 not act for themselves ; and his acts wiU be valid to the extent of their ex- 
 treme necessity. Pike v. Balch, xxxviii. 302. 
 
 19. Before selling the cargo, if its situation wiU admit of it before it will 
 probably be lost, he should communicate with the owners ; and to effect such 
 communication, he is bound to use any available means within his power. 
 Pike V. Balch, xxxviii. 302. 
 
 20. Masters are the general agents of the owners of a ship, so far as re- 
 spects acts necessary to the successful prosecution of the voyage. Duncan 
 V. Reed, xxxix. 415. 
 
 21. In case of the loss of a vessel, the master is bound to dispose of the 
 wreck to the best advantage of the o^vners, and his duties do not cease until 
 the proceeds which may be saved are placed at their disposal. Duncan v. 
 Beed, xxxix. 415. 
 
 22. While so employed in their interests, he is entitled to reasonable com- 
 pensation and necessary incidental expenses. Duncan v. Reed, xxxix. 415. 
 
 23. Whether the master of a disabled vessel has authority to sell her, for 
 the benefit of those concerned, is to be alone determined by the circumstances 
 and condition of the vessel, at the time and place where the sale is made. 
 Prince v. Ocean Ins. Go., xi. 481. 
 
 24. When a survey is called upon a disabled vessel, it is presumed to be 
 correct, but is not conclusive ; it cannot control the rights of the parties, but 
 is important evidence, designed generally to protect the rights of all concerned. 
 Prince v. Ocean Ins. Co., XL. 481. 
 
 25. Where the master, as such,«sells his vessel on account of its injury, he 
 must show that he proceeded correctly, and that the sale was justifiable. To 
 
SHIPPING. 527 
 
 establish this, it must have arisen from necessity. Prince v. Ocean Ins. Go., 
 XL. 481. 
 
 26. A master, owning a part of the vessel thus sold, is justifiable under the 
 same circumstances as if he were not a part owner. Prince v. Ocean Ins. 
 Co., XL. 481. 
 
 27. The authority of the master of a ship in a foreign port, is restricted to 
 such repairs and supplies as are in a just sense necessary for the ship under 
 the actual circumstances of the voyage ; and a suit against the owner for 
 their value cannot be maintained without .proof that such repairs and supplies 
 were necessary. Goodenow, J., non-concurring. Whitten v. Tisdale, xiili. 
 451. 
 
 See Agenct, 4, 6. 
 
 (b) Wages of seamen. 
 
 28. A part owner of a vessel is not relieved from his joint liability for the 
 wages of a seaman, who was employed on credit of the owners by the master, 
 although the master was appointed by the other part Owner, and although he 
 forbade both the master and other part owner to employ the vessel at all, 
 unless such prohibition was known to the seaman. Hardy v. Sprowl, xxix. 
 
 "258. 
 
 29. The hirer of a vessel on shares, while using and controlling her under 
 the contract, is to be considered the owner, acting for himself in procuring 
 seamen and supplies. Giles v. Vigoreux, xxxv. 300. 
 
 30. The enrollment or registry of a vessel is not conclusive evidence against 
 the general owner, in a suit against him for sailors' wages. Giles v. Vigo- 
 reux, xxxv. 300. 
 
 31. No promise, upon which a sailor can maintain a suit for wages, is de- 
 ducible from his right to collect them by process in rem. Giles v. Vigoreux, 
 xxxv. 300. 
 
 32. Against the general owner of a vessel, chartered on shares, no action 
 for wages can be maintained by a seaman, who was employed by the hirer, 
 while using and controlling the vessel under the charter party. Giles v. Vig- 
 oreux, xxxv. 300. 
 
 33. Where the contract is for a general voyage, with no limitation, except 
 as to time, it will be construed as a contract for service for the time named in 
 the articles, to be employed between such ports as the master may elect. 
 Nolle V. Steele, xiii. 518. 
 
 34. Under such contract, if a seaman, without adequate cause, leave the 
 vessel before the expiration of the time specified, he will forfeit his wages 
 earned prior to the desertion. Noble v. Steele, xlii. 518. 
 
 (c) In other respects. 
 
 35. Where, through absolute necessity, a vessel has anchored upon a 
 common and known passage-way to a wharf, it is the master's duty to exer- 
 cise reasonable skill, prudence and care, to give all others their just rights of 
 navigating the river. Knowlton v. Sanford, xxxii. 148. 
 
 36. No vindictive damages were intended to be given to the father of a 
 person under twenty-one years of age, by R. S. of 1841, c. 154, § 23; but 
 
528 SHIPPING. 
 
 the measure of damages is compensation for the pecuniary injury or loss 
 resulting from such transportation. Nickerson v. Earriman, xxxviii. 277. 
 
 37. If the minor, who is transported, dies at the termination of the outward 
 voyage, no damages can be recovered by his father, of the master, for the loss 
 of the son's services, after his death. Nickerson v. JBarriman, xxxviii. 277. 
 
 38. Where a voyage is broken up by shipwreck, the wages of the master 
 terminate when the vessel and cargo pass out of his control. McGilvery v. 
 Stackpole, xxxviii. 283. Duncan v. Beed, xxxix. 415. 
 
 39. For any subsequent services and expenses in securing and transmitting 
 the funds belonging to the owners, he is entitled, as agent, to reasonable 
 compensation and necessary incidental expenses ; but such services must be 
 in the implied employment of the owners, and not merely for himself. Mc- 
 Gilvery V. Stackpole, xxxviii. 283. 
 
 40. For expenses and board, and medical services in his behalf, the owners 
 are liable. Nor can they refuse the allowance of expenses which have been 
 included in the general average, and of which they have received the benefit. 
 Duncan v. Beed, xxxix. 415. 
 
 41. But, for errors committed by the master, through his own fault only, 
 the owners are not responsible to him. Duncan v. Reed, xxxix. 415. 
 
 in. EIGHTS AND LIABILITIES OF OWNERS. 
 
 (a) For supplies and repairs. 
 
 (b) In other respecis, and in general. 
 
 (a) For supplies and repairs. 
 
 42. One part owner of a ship cannot recover of the other any portion of 
 the expense for repairs in a home port, without any authority from, or knowl- 
 edge and consent of, such other. Benson v. Thompson, xxvii. -470. Hardy 
 v. Sprowl, XXXI. 71. 
 
 43. In a suit for a share of the supplies furnished to a vessel, of which 
 the plaintiff and defendant were part owners, an admission by the defendant, 
 (after having alienated his part,) that the claim was justly due, in the absence 
 of proof or pretence of other outstanding bills, is an admission, that, upon a 
 final adjustment of all liabilities by the joint owners, such balance was due 
 the plaintiff, and upon such admission the suit is maintainable. McLellan 
 v. Longfellow, xxxiv. 552. 
 
 44. If a vessel be let on hire to be used and sailed without charge for re- 
 pair or other expense to the owner, he wiU not be liable for supplies and out- 
 fits procured by the hirer. And this, too, whether the contract be or be not 
 known to the party furnishing the articles ; and whether the person letting the 
 vessel be owner of the whole or of an undivided part. McLellan v. Beed, 
 xxxT. 172. Swanton v. Reed, xxxv. 176. 
 
 45. Neither will he be liable for materials used in the repair of a vessel, 
 though the contract for such letting be by parol, and though it be unknown to 
 the material man, and though the repair be of a permanent character. Swan- 
 ton V. Beed, xxxv. 176. 
 
 46. The master of a vessel, merely as such, has no authority to order re- 
 pairs in the home port. And a vessel, moored at the wharf, in a town ad- 
 joining that in which the owner resides, is at her home port. Jordan v. 
 
 Young, xxxvii. 276. 
 
SHIPPING. 529 
 
 47. The owners of a vessel are not liable for repairs, unless they were 
 made by their order, or by the direction of some one who has a right to act 
 for them. Jordan v. Young, xxxvii. 276. 
 
 48. Where the owner of a vessel contracted, in writing, to sell and convey 
 her to certain persons, upon the payinent'of a sum stipulated, and, thereupon, 
 ceased to exercise any control over her, in the appointment of a master, or in 
 directing her employment, and did not receive her earnings ; he is not liable 
 for money advanced on the request of the master, to pay for necessary repairs. 
 Tyler v. Holmes, xxxviii. 258. Nash v. Parker, xxxviii. 489. 
 
 (b) In other respects, and in general. 
 
 49. Confession, made by the owner, upon record in the U. S. Courts, that 
 the vessel has been forfeited for a breach of the navigation laws, is not con- 
 clusive against him ; for it may have been made under a mistake of the facts 
 or of the law. Mitchell v. Cunningham, xxix. 376. 
 
 50. After seizure of a vessel and cargo, for such supposed breach of the 
 law, and after such confession, and while the property is in the custody of 
 the law under the seizure, the owner still has such an interest as would ena- 
 ble him to make a valid mortgage to some of his creditors, as against others, 
 who should attach after final restoration by the government.' Mitchell v. Cun- 
 ningham, XXIX. 376. 
 
 51. One of four owners of a vessel cannot maintain an action of assumpsit 
 for the use and charter of it, against the other three jointly. Sturdivant v. 
 Smith, XXIX. 387. 
 
 52. While, between the joint owners of a vessel, no settlement has been 
 made of her disbursements and earnings, and no balances have been agreed 
 upon, one part owner cannot sustain an action against another for his propor- 
 tion of the net avails, although the vessel has been lost at sea. The usual 
 process for such adjustment is at equity. Maguire v. Pingree, xxx. 508. 
 Hardy v. Sprawl, xxxiii. 508. Dodge v. Hooper, xxxv. 536. 
 
 53. Even if, without necessity, a vessel have anchored in a common and 
 known passage way to a wharf, that would not excuse neglect in any other 
 vessel, attempting to pass upon such passage way. Such vessel is bound to 
 the use of ordinary care and skill. If, through want of such care and skill, 
 on the part of the vessel attempting to pass, a collision should occur, her 
 owners would be liable to the owners or shippers of the anchored vessel, for 
 their damages. Knowlton v. Sanford, xxxii. 148. 
 
 54. Owners of vessels are responsible for the negligence and want of skill 
 of masters, while acting within the sphere of their employment. Knowlton 
 V. Sanford, xxxii. 148. 
 
 55. No action can be maintained by one part owner against another, rela- 
 tive to her earnings and disbursements, even after the defendant sold his part 
 of the vessel ; and even though, while part owner, he had control of the 
 vessel, sailing her on shares. Dodge v. Hooper, xxxv. 536. 
 
 56. One who charters a vessel is not thereby authorized to insure for the 
 owner. Neither has one part owner, as such, a right to insure for another. 
 Sawyer v. Freeman, xxxv. 542. Chadbourne v. Duncan, xxxvi. 89. 
 
 57. If, between part owners, the respective claims growing out of her em- 
 ployment have been liquidated, the balance due either may be recovered by 
 an action at law. Chadbourne v. Duncan, xxxvi. 89. 
 
 67 
 
530 SHIPPING. 
 
 58. Persons, severally owning distinct fractional paits of a vessel, are 
 merely tenants in common ; and a declaration by one will not bind another. 
 McLellan v. Cox, xxxvi. 95. 
 
 IV. BILLS OF LADING. 
 
 59. Bills of lading are transferrable by indorsement ; and when thus trans- 
 ferred by the consignee, to a hona fide purchaser, without notice of adverse 
 claims, they pass the legal title. Winslow v. Norton, xxix. 419. 
 
 60. Where no laches are imputable to the indorsee, in taking possession of 
 the property as soon as its arrival from sea, the sale to him cannot be de- 
 feated. Winslow V. Norton, xxix. 419. 
 
 61. A bill of lading, in the usual formi is a receipt for the quantity of 
 goods shipped, and also a promise to transport and deliver the same. O'Brien 
 V. Gilchrist, xxxiT. 554. 
 
 62. So far as such a bill is a receipt, it may be controlled by parol proof, 
 in a suit between the parties to it. As that the quantity of goods received 
 was less than that acknowledged in the bill. O'Brien v. Gilchriit, xxxiv. 
 554. 
 
 63. "Where a bill stated a specified number of sticks of timber, containing 
 a specified number of tons "more or less," in a suit upon the biU, the defend- 
 ant was not allowed to prove, by parol, an agreement by the shipper that the 
 words "more or less" should apply equally to the number of sticks as to the 
 number of tons. O'Brien v. Gilchrist, xxxiv. 554. 
 
 V CONSIGNMENTS. 
 
 64. When goods on shipboard are consigned to the captain for sale, his 
 power to sell at the port of destination is not revoked by a sale made while 
 the goods are at sea, and of which he had received no notice. The purchaser, 
 in such case, adopts the captain as his consignee, until he appoints another. 
 Smith V. Davenport, xxxiY. 520. 
 
 65. If the goods, thus sold, were by the contract of sale to be delivered to 
 the purchaser on their arrival, and he have no one there to receive them, the 
 captain, when unlading them, is the agent of the seller in delivering, and of 
 the purchaser in receiving them. Smith v. Davenport, xxxit. 520. 
 
 66. The consignee, or the party receiving the goods, is, in all cases, re- 
 sponsible for the freight. Sill v. Leadhetter, xlii. 572. 
 
 67. A. contracted to transport certain goods for B., which he delivered ac- 
 cordingly, save a portion, which he converted to his own use on the route ; 
 and for these, B. brought his action, and A. suffered a default therein. A. 
 then sued B. for his freight, and B. made no claim to recoup the damages so 
 sustained: — Held, that the freight was earned, and no deduction having been 
 claimed, the plaintiff was entitled to judgment for the agreed price. Rill v. 
 Leadhetter, xlii. 572. 
 
 See Bailment, 7. 
 
SKILL, PROFESSIONAL. 531 
 
 VI. TREIGHT, AND CHARTER PARTIES. 
 
 68. One who charters a vessel is not thereby authorized to insure her for 
 the owner. Sawyer v. Freeman, xxxt. 542. 
 
 69. An authority in the master of a vessel, to receive a partial payment in 
 advance for the freight, may be inferred from subsequent payments to him on 
 that account, with the approbation of the owner. Drummond v. Winslow, 
 xxxvnr. 208. 
 
 70. And money thus found in the hands of the owner, belonging of right 
 to the charterer, may be recovered in an action for money had and received. 
 Drummond v. Winslow, xxxviii. 208. 
 
 71. Where the master saUs the vessel on shares, but it does not appear that 
 he had control over her, the owners may recover for her freight, in their own 
 name. /Sims v. Howard, XL. 276. 
 
 See Shipping, 66, 67. 
 
 ATI. IN OTHER RESPECTS. 
 
 72. If, in a river, there be a common and known passage way for vessels 
 to a wharf, there is, ordinarily, no right in any person to anchor a vessel upon 
 it, or so near it as to expose another vessel to danger, by compelling her to 
 depart from the passage way. Knowlton v. Sanford, xxxii. 148. 
 
 73. In case of absolute necessity, however, a vessel may anchor upon such 
 passage way, remaining no longer than the necessity exists. Knowlton v. 
 Sanford, xxxii. 148. 
 
 74. Where a steamer, by user, has acquired the right to pass upon a par- 
 ticular passage way to a wharf, it is for the jury to decide whether other nav- 
 igators are bound, under the circumstances, to know that there is such a pas- 
 sage way, and where it is. Knowlton v. Sanford, xxxil. 148. 
 
 SKILL, PROFESSIONAL. 
 
 1. It is not a rule of law that a more skUlful and learned person is entitled 
 to a greater compensation, for the performance of a professional service, than 
 one competent, but less skillful and learned, who should perform the service 
 as well. Stockbridge v. Grooker, xxxiT. 349. 
 
 2. In awarding a reasonable compensation for a professional service, the 
 jury may take into consideration the degree of skiU exhibited, and of respon- 
 sibility incurred, in its performance ; but are not bound to award a sum " com- 
 mensurate" with such skill and responsibility. Stoclebridge v. GrooTcer, xxxiv. 
 349. 
 
532 SOM. AND KEN. B. E. CO. — STATUTES. 
 
 SOMERSET AND KENNEBEC RAILROAD COMPANY. 
 
 The reservations in the fourteenth section of the charter of this company 
 are remedial only, and contain no power to change an absolute grant to a con- 
 ditional one. Nor is the requirement of erecting and maintaining fences, a 
 condition upon which the rights granted by their charter were made to de- 
 pend. Nichols V. S. & K. B. R. Go., xliii. 356. 
 
 SPECIFICATIONS OF DEFENCE. 
 See Pleading. 
 
 STATUTES. 
 
 I. CONSTRUCTION. 
 
 11. WHAT ABE PUBLIC STATUTES, 
 
 m. REPEAL AND REVIVOR. 
 
 IV. GENERALLY. 
 
 I. CONSTRUCTION. 
 
 1. Where a statute has received a judicial construction, and is afterwards 
 reenacted in the same terms, it is to be understood that the Legislature hare 
 adopted the construction given it. Myriclc v. Hasey, xxvii. 9. 
 
 2. No statute is to be held retrospective, or in violation of any constitu- 
 tional provisions, where it affects rights, unless such shall be the necessary 
 construction. Given v. Marr, xxvii. 212. 
 
 3. The Act of 1829, c. 440, permitting divorces to be decreed for deser- 
 tion, &c., is not retrospective. Given v. Marr, xxvil. 212. 
 
 4. Courts of justice can give effect to Legislative enactments, only to the 
 extent to which they may be made to operate by a fair and liberal construc- 
 tion. Swift V. Luce, XXVII. 285. 
 
 5. A charter, authorizing the erection of a toll-bridge, required it to be at 
 least twenty-four feet wide, with sufficient rails on each side. It was con- 
 structed twenty-four feet wide between the rails, but with a central frame 
 work, the thickness of which, if deducted from the width of the bridge, left 
 the traveling pathway less than twenty-four feet : — Held, that that reduction 
 in the width of the pathway did not impair the right to receive toll. Dam. 
 T. Bridge v. Cotter, xxxi. 357. 
 
 6. If a statute, which confers a special privilege, also imposes specified 
 duties, and provides a remedy for the neglect of them, that remedy alone must 
 be pursued. Bassett v. Carleton, xxxii. 553. 
 
 7. In the charter of a private corporation, the Legislature may establish a 
 new tribunal, with exclusive 'power to decide whether the corporation shall 
 have failed to perform its charter duties. Bassett v. Carleton, xxxii. 553. 
 
STATUTES. 
 
 533 
 
 8. In a charter authorizing the erection of a dam, subject to the duty of 
 turning logs over the dam, and of supplying water for the driving of them, 
 the selectmen of the town may rightfully be constituted the exclusive judges, 
 (in controversies between the corporation and other parties,) to decide whether 
 a sufficiency of water had been furnished, and whether the logs were seasona- 
 bly turned over. Bassett v. Garleton, xxxii. 553. 
 
 9. In such controversies, testimony that the logs were not seasonably turn- 
 ed over, and that the supply of water was insufficient, cannot be received in 
 a court of law, even though the selectmen were never called, by either party, 
 to act upon the subject. Bassett v. Carleton, xxxii. 553. 
 
 10. The expiring of the time allowed by an Act for finishing the proceed- 
 ings invalidates them, if unfinished, at whatever stage they had arrived. 
 Williams v. Lincoln Go. Com., xxxv. 345. 
 
 11. Chapter 148, § 49, of R. S. of 1841, is a remedial and not a penal 
 enactment. Frohock y.Pattee, xxxviir. 103. Thatcher v. Jones, xxxi. 528. 
 
 12. Chapter 98, of the Act of 1854, is prospective in its operation. Ullis 
 V. Smith, xxxYiii. 114. 
 
 13. An Act should not be construed as 
 fringement of existing privileges and rights. 
 
 See Action, 71, 78, 85. 
 
 Amendment, 4, 7, 19. 
 
 Appeal, 7. 
 
 Akbitkation, 14, 22, 35. 
 
 Akkest, 1 — 4. 
 
 Assessors. 
 
 Assignment, 13, 26 — 33. 
 
 A. & St. L. R. R. Co. 
 
 Attachment, 1, 2, 9, 12, 13, 
 
 15, 24, 47, 53, 56, 62, 80, 
 
 81, 83. 
 Bank, 22. 
 Bankhuptct. 
 Bastabdy. 
 Betteements, 3, 4. 
 Bills, &c., 7, 44, 82, 125, 130, 
 
 173. 
 Bond, 11. 
 City op Poetland. 
 Citizenship, 1. 
 Constable, 2. 
 Constittttional Law. 
 CoNTAGiors Sickness. 
 Contempt op Cotjbt. 
 contsact, 60, 112. 
 Coepoeation, 28, 32, 56, 58, 
 
 77. 
 Costs, 6, 7, 10, 13, 15, 19, 24, 
 
 30. 
 County Commissionees. 
 Damages, 4, 6, 78,>83, 90, 91. 
 Deed, 43. 
 Deposition, 7, 13. 
 
 authorizing any unnecessary in- 
 State V. Freeport, xliii. 198. 
 
 Disteibution, &c., 34. 
 
 DiSTEICT COTTET, 1. 
 DiVOECE. 
 
 DowEB, 2, 44, 45. 
 
 Eeeoe, 16. 
 
 Evidence, 173. 
 
 Execution, 13, 14, 29, 33, 51, 
 
 59,90,93,94,98. 
 Exegutoes, &c., 8, 17, 27, 28, 
 
 39, 64, 75, 76. 
 Felony, 1. 
 Fence, 3, 5, 6. 
 Fence Viewees, 2. 
 
 FlEEWAEDS. 
 
 FisHEEiES, 1, 2, 5, 6, 7, 10, 14. 
 Flats, 1, 2. 
 
 FOECIBLE EnTEY & DeTAINEE. 
 
 Fbaud, 26, 50, 64. 
 
 goteenoe and council. 
 
 Geants. 
 
 Hay, 1. 
 
 Heies, 8. 
 
 Husband and Wipe. 
 
 Impounding, 3, 4, 5, 6. 
 
 Indictment. 
 
 Infant, 7. 
 
 Insane Peesons. 
 
 Insolvent Estates, 3, 8. 
 
 jueisdiction, 4, 6. 
 
 Justices op the Peace, 10, 
 
 11, 23, 25. 
 Landloed and Tenant, 7. 
 Lands, &c., 1,2, 3. 
 
534 STATUTES. 
 
 See Lien. Pbobate Account. 
 
 Limitation, 17. Pbobate Bond. 
 
 Logs, &c. Pbobate Coubt. 
 
 Mills. RailboXd. 
 
 MoKTGAGE. Rape. 
 
 Notice, &c., 4. Recognizance, 18, 20. 
 
 Oeeeb, &e. Relationship. 
 
 Pabol Repbesentation. Replevin, 16. 
 
 Paupeb, 6, 13, 14, 15, 20, 29, Review, 6, 7, 10, 11. 
 
 71. Right or Entet. 
 
 Penalty, 1, 3, 6, School Disibict. 
 
 Pension, 1. Seizin, &c. 
 
 Pebsonal Pbopeett, 1. Swine. 
 
 Petition eob Paetition, 21, Tax. 
 
 24, 35, 36, 46. Teitstee Peocess. 
 
 Plantation. Tbttsts. 
 
 Pleading, 24, 74, 77, 78. Ustjbt. 
 
 PooB Debtob. Way. 
 
 Peactice, 53. Weit. 
 
 n. WHAT AKE PUBLIC STATUTES. 
 
 14. Each chapter of the Revised Statutes is itself a statute. Cleaves v. 
 Jordan, xxxv. 429. 
 
 15. Acts prescribing the limits of towns and counties are public Acts, of 
 which the Court are bound to take notice. State v. Jackson, xxxix. 291. 
 
 III. REPEAL AND EEVrVOR. 
 
 16. An unqualified repeal of a penal statute extinguishes all pending suits 
 founded upon it ; and no costs are recoverable by either party. Saco v. 
 Gurney, xxxiv. 14. Heald v. State, xxxvi. 62. 
 
 17. The repeal of an Act which authorized a course of proceedings by a 
 public ofiicer invalidates the proceedings, if unfinished, at whatever stage 
 they had arrived. Williams v. Lincoln Go. GommCrs, xxxv. 345. 
 
 18. A repeal of a penal statute precludes the rendition of a judgment, 
 although a nolo contendere had been pleaded prior to the repeal. Heald v. 
 State, XXXVI. 62. 
 
 19. An action properly commenced under the Act of 1850, c. 196, § 7, 
 and pending at the time of the enactment of the Act of 1853, c. 29, is 
 maintainable, notwithstanding the said 7th section was repealed by the Act 
 of 1852, c. 284. RicE, J., dissenting. Plantation No. 9 v. Bean, xxxvi. 
 359. 
 
 20. An action, commenced by authority merely of a statute, cannot be 
 maintained, if, at the time it comes on for trial, the statute has been repealed, 
 without any saving clause. Macnawhoc Plantation v. Thompson, xxxvi. 
 365. 
 
 21. In deciding a question at the trial of an action, reference can only be 
 had to the law as then existing ; and no subsequent Act can have any efiect 
 upon its determinaiion. Macnawhoc Plantation v. Thompson, xxxvi. 365. 
 
STREETS. 535 
 
 22. When a statute is revised and parts are omitted in the revision, those 
 provisions are not to be revived by construction. Pingree v. Snell, xiii. 53. 
 
 23. Provisions of a statute, absolutely inconsistent with those of another 
 statute subsequently enacted, are ordinarily regarded as repealed ; but statutes 
 cannot be repealed by implication, if the implication does not necessarily 
 follow from the language used. Pratt v. At. & St. L. R. B. Co., xlii. 579. 
 
 24. The simple incorporation, into a private statute, of a portion of the- 
 provisions of a general public statute, cannot be treated as a repeal of its 
 other provisions which are omitted therefrom ; nor can such omission exon- 
 erate the corporation from the duties, liabilities and obligations imposed upon 
 similar corporations by the general statute. Pratt v. At. & St. L. B. R. Co., 
 XLII. 579. 
 
 25. The Act of 1842, c. 9, is remedial in its nature, and applies to corpo- 
 rations which obtained their charters prior to its enactment. Pratt v. At. & 
 St. L. B. R. Co., XLII. 579. 
 
 IV. GENEEALLY. 
 
 26. R. S. of 1841, c. 1, § 1, providing when statutes shall take effect, ap- 
 plies to private as well as public statutes. Cooper v. Gurtis, xxx. 488. 
 
 STOCKHOLDERS. 
 
 See CoEPOEATiON, 23, 24, 43, 44, 59, 64, 70, 71, 78, 79, 80, 82, 83, 84, 85. 
 
 STOLEN PROPERTY. 
 See rEAirDULE3<rT Sales of Pehsonal Peopeety, 44. 
 
 STREETS. 
 
 1. In the assessment of damage done to an individual by the establish- 
 ment of a city street, requiring a removal of his building, a provision that he 
 should not be required to move it, until necessary for the opening of the street, 
 requires no special notice to him of the time for the removal. But that time 
 would be sufficiently indicated to him by the progress made in the formation 
 of the street. Ifussey v. Gahoon, xxxiy. 74. 
 
 2. The proper width of a street must depend upon the amount of travel 
 passing over it, upon the business transacted in it, and upon the comfort of 
 those residing or doing business upon it. Baldwin v. Bangor, xxxvi. 518. 
 
 3. With a view to such uses, the authorities may rightfully locate streets 
 
536 SUP. SCHOOL COMMITTEE. — S. J. COUKT. 
 
 in different parts of the city, varying much in their widths and consequent 
 accommodations. Baldwin v. Bangor, xxxvi. 518. 
 
 4. The Act of 1845, c. 256, does not apply to the establishment of public 
 streets. Baldwin v. Bangor, xxxti. 518. 
 
 See Deed, 115, 119, 122, 123. 
 Ways, 83. 
 
 SUNDAY. 
 See Loed's Day. 
 
 SUPERCAKGO. 
 
 See Agency, 7. 
 
 SUPERINTENDING SCHOOL COMMITTEE. 
 
 1. The parent of a child expelled from a public school, by order of the su- 
 perintending school committee, can maintain no action against them for such 
 expulsion. JDonahoe v. Richards, xxxtiii. 376. 
 
 2. The duties of such committee, as to the expulsion of scholars from a 
 public school, partake of a judicial character ; and, for an honest, though er- 
 roneous discharge of them, they are not liable in damages to the person ex- 
 pelled. Donahoe v. Eichards, xxxtiii. 379. 
 
 3. Such committee may rightfully enforce obedience to all the regulations 
 by them made, within the sphere of their authority ; and for a refusal to read 
 from a book by them prescribed, they may expel such disobedient scholar. 
 Donahoe v. Richards, xxxviii. 379. 
 
 4. No scholar can evade such requirement of the committee, under the plea 
 that his conscience will not allow the reading of such book ; nor because the 
 church, of which the scholar is a member, hold, and have so instructed its 
 members, that it is a sin to read the book prescribed. Donahoe v. Richards, 
 XXXVIII. 379. 
 
 See Schools. 
 
 SUPREME JUDICIAL COURT. 
 
 1. The Supreme Judicial Court, by the Act of 1852, e. 241, while sitting 
 as a law court, is not a court of original jurisdiction. Baker v. Johnson, 
 XLI. 15. 
 
SURETY. 537 
 
 2. This court is clothed with plenary power to maintain order and decorum 
 while in session ; and may employ, for this purpose, such subordinate minis- 
 terial and executive officers as may be deemed necessary. Baker v. Johnson, 
 XLi, 15. 
 
 3. The Governor, with the advice of the Council, on the address of both 
 branches of the Legislature, having removed from office one of the Justices 
 of this Court, it is the imperative duty of the Court, the question being legally 
 presented, not only to consider the proceedings preliminary to the address, 
 and to decide upon their validity, but also to pass upon the question, whether 
 such removal was in conformity with the constitution, and has the effect to 
 disqualify such Justice, and to deprive him of the right to receive the com- 
 pensation established by law. Davis, ex parte, xii. 38. 
 
 4. The right and the duty of this Court to consider and decide questions 
 regularly presented at its bar are inseparable. Davis, ex parte, xli. 38. 
 
 5. Whenever, if ever, the executive or the legislative department exercises, 
 in any respect, a power not conferred by the constitution, the judiciary, on a 
 proper submission of the questions arising therefrom, is not only permitted, 
 hut compelled to sit in judgment upon such acts, and to pronounce them valid 
 or otherwise. Davis, ex parte, xil. 38. 
 
 . See COTJNTY COMMISSIONEES, 55, 56. 
 
 SURETY. 
 
 I. LIABILITY. 
 IL WHEN DISCHAHGED. 
 IIL KEMEDIES. 
 
 I. LIABILITY. 
 
 1. It is a fair presumption, that one, becoming a surety, does it upon a 
 belief that the principal parties are conducting in the usual course of business, 
 subjecting him only to the ordinary risks attending it. Franklin Bank v. 
 Cooper, xxxYi. 179. 
 
 2. To accept a surety, known to be acting upon a belief that there are no 
 unusual circumstances by which his risk will be materially increased, while 
 the party, thus accepting, knows that there are such circumstances, and with- 
 holds the knowledge of them from the surety, though having a suitable op- 
 portunity to communicate them, is a legal fraud, which discharges the surety. 
 
 •Franklin Bank v. Gooper, xxxvi. 179. Franklin Bank v. Gooper, xxxix. 
 542. 
 
 3. The bond of a bank cashier, framed to cover past as well as future 
 delinquencies, will be invalid against a surety, if his name was procured at 
 the desire of the directors, they knowing that past defalcations existed, of 
 which he was ignorant, and withholding the knowledge from him, though with 
 a suitable opportunity to communicate it. Franklin Bank v. Gooper, xxxvi. 
 179. 
 
 4. A surety cannot be discharged on the ground of fraudulent representa- 
 
 68 
 
538 SURETY. 
 
 tions made to his principal, except when the principal ■would be. Bryant v. 
 Crosby, xxxvi. 562. 
 
 5. A concealment, which entirely discharges a suretj', is one of facts known 
 to the other party, and not known to him ; and known to be of a character to 
 materially increase the risk beyond that assumed in the usual course of busi- 
 ness of that kind, having a suitable opportunity to make them kno^vn to the 
 surety. Bryant v. Crosby, xxxvi. 562. 
 
 6. After chattels have been delivered by the principal in part payment of 
 his note, he may adjust their value with the payee ; and his vsritten admis- 
 sion upon the contract of the amount due will bind his surety, in the absence 
 of fraud. Bryant v. Crosby, xxxvi. 562. 
 
 7. Upon a note payable to a bank or order, which was never discounted or 
 negotiated by the bank, but which was sold by the principal to a third person, 
 no action can be maintained by the holder against the surety thereon, although 
 the suit is in the name of the bank by authority. Manufacturers' Bank v. 
 Cole, XXXIX. 188. 
 
 8. If, in a contract of suretyship, there is any misrepresentation or conceal- 
 ment as to any material part of the transaction to induce the surety to become 
 a party, it is void. But, to be material, it must be some fact or circumstance 
 immediately affecting the liability of the surety, and bearing directly .upon 
 the particular transaction to which the suretyship attaches. Franklin Bank 
 V. Stevens, xxxix. 532. 
 
 9. Thus, in regard to a cashier's bond, conditioned that he should account 
 for the money and property which had come into his hands as such cashier, 
 prior, as well as subsequent to the date of the bond, the knowledge of the 
 agents of the bank, that the books of the bank had been badly kept ; that 
 bonds had not been given in previous years ; that the Bank Commissioners 
 had omitted to perform their duties ; that the directors had been negligent ; 
 and the concealment of these facts from the surety, are not material to the 
 risk assumed, and wUl not relieve him from liability ; but a knowledge by 
 such agents of the bank, that, at the time of taking such bond, the cashier 
 was a defaulter, and a concealment thereof from the surety, will avoid the 
 bond. Franklin Bank v. Stevens, xxxix. 532. 
 
 10. A surety cannot interpose as a defence, that the name of another surety 
 upon the same instrument was obtained by fraud, unless the signature of the 
 latter was a condition by which to obtain that of the former.' Franklin Bank 
 V. Stevens, xxxix. 532. 
 
 10. A creditor, holding a demand against a principal debtor and surety, 
 may attach the property of either. He is hot bound to resort to the debtor's 
 property first, in order to collect the debt. Fuller v. Loring, xlii. 481. 
 
 11. A. recovered judgment against B. and C, principal and surety upon a 
 note. By the direction of A.'s attorney, an officer seized and advertised for 
 sale, by virtue of the execution, certain property of B. Afterwards, anoth- 
 er officer, in another county, by direction of A.'s attorney, seized and sold, on 
 the same execution, certain property of the surety C. Subsequently to this, 
 the said property of B. was sold as advertised. C. then brought his action of 
 trespass against A., claiming that the seizure and advertisement of B.'s pro- 
 perty, followed by its sale on the execution, protected his own, B.'s property 
 having been shown to be ample to satisfy the execution: — ^eM, that the 
 property of C. was legally sold, and that he could not maintain his action 
 against A. Teitnet, C. J., dissenting. Fuller v. Loring, xlii. 481. Vide 
 SUKEIT, 14, 15. 
 
SURETY. 539 
 
 12. If the principal sells the note to a third person, not the payee, without 
 the express or implied consent of the sureties, they are not liable. Granite 
 Bank V. MUs, xliii. 367. 
 
 13. Whatever will discharge a surety, in equity, will be a good defence in 
 law. Springer v. Toothaker, xliii. 381. 
 
 14. A creditor who holds the personal contract of his debtor, with a surety, 
 and has, or receives subsequently, property from the principal as security for 
 his debt, must appropriate it fairly for the payment of the debt, or he will 
 lose his claim against the surety to the amount of the property. Springer 
 V. Toothaker, xiiii. 381. 
 
 15. In a suit against the principal upon a promissory note, where property 
 is attached, the plaintiff has no equitable or legal right to surrender or aban- 
 don it to the injury of the surety without his consent. Springer v. Toothaker, 
 XLIII. 381. Vide Subett, 11. 
 
 See Action, 46, 47. Bills, &c., 45, 115, 164. 
 
 BaNKBUPICT, 11. EXECUTOBS, &c., 79. 
 
 n. WHEN DISCHARGED. 
 
 16. Where the creditor, by a contract with the principal, extends the time 
 of payment, upon a sufficient consideration, without the consent of the sure- 
 ty, the latter is discharged. Mariners' Bank v. Abbott, xxTiii. 280. Lime 
 Rock Bank v. Mallett, xxxiv. 547. Chute v. Fattee, xxxvii. 102. Lime 
 Bock Bank v. Mallett, xlii. 349. Dunn v. Spaulding, XLill. 336. 
 
 17. The mere receipt of interest for a stipulated time, after the note has 
 become payable, is not sufficient evidence of an agreement to give further 
 credit. Mariners' Bank v. Abbott, xxtiii. 280. 
 
 18. Such a contract, between the holder of a note and the principal there- 
 on, as would discharge the surety, if made prior to the pay-day, would have 
 the same effect, though made subsequently to the pay-day. Stowell v. Good- 
 novi, XXXI. 538. 
 
 19. Wliere the holder, in such case, relies upon the assent given to such 
 contract by the surety, the onus probandi is upon the holder. Stowell v. 
 Goodnow, XXXI. 538. 
 
 20. The surety in a debtor's relief bond is discharged, if, without his con- 
 sent, the obligee, for a valuable consideration, extend the time for the princi- 
 pal to disclose, beyond the six months prescribed in the bond. Phillips v. 
 Bounds, XXXIII. 357. 
 
 21. A consent by the principal, at the request of the creditor or his attor- 
 ney, to delay the making of his disclosure, is a valuable consideration. Phil- 
 lips V. Rounds, XXXIII. 357. 
 
 22. So, a contract between the creditor and principal in such bond, for a 
 valuable consideration, without the knowledge of the surety, that the bond 
 should be discharged, if the principal, at a time beyond six months, shall pay 
 a specified part of the amount due, will discharge the surety. Thomas v. 
 Dow, xxxm. 390. 
 
 23. When the holder of a note has extended the time of payment, without 
 the knowledge of the surety, the surety's defence wiU not be defeated by proof 
 of an earlier contract of the same kind, made with the consent of the surety. 
 Lime Rock Bank v. Mallett, xxxiv. 547. 
 
540 SURETY. 
 
 24. The receiving of interest in advance is a Valuable consideration iot en- 
 larging the time of payment. Lime Rock Bank v. Mallett, xxxiv. 547. 
 Chute V. Fattee, xxxvir. 102. Lime Bock Bank v. Mallett, xlii. 349. 
 
 25. Upon such a note, the holder had made several successive indorsements 
 of the words " Received, Renewed," to each of which was prefixed a date 
 subsequent to the pay-day of the note: — Held, that each indorsement was 
 equivdent to the words " Received the interest for a renewal." And, that the 
 word " Renewed," might be regarded as an agreement to consider the note to 
 be the same, as if made in the same terms, anew from that date. Lime Bock 
 Bank v. Mallett, xxxiv. 547. 
 
 26. A person, whose name appears as maker upon a note, but who is in 
 fact a surety only, and is known to be such by the payee, may avail himself 
 of the defence that the time of payment has been enlarged without his know- 
 ledge or consent ; even if the payee be a bank, whose rule and usage, well 
 knovra to the surety, were to take no accommodation notes, so written, but, 
 that it required all notes to be joint and several, and regarded all the pro- 
 misors as principals, so far as the bank was concerned. Lime Bock Bank v. 
 Mallett, XLII. 349. 
 
 27. The part payment of a note, by the surety, after his liability is thus 
 terminated, with money belonging to his principal, will not revive his liability 
 for the balance,, although, at the time of such payment, he gave no intimation 
 that the money was not his own. And he must show that the money thus 
 paid belonged to the principal. Lime Bock Bank v. Mallett, xlii. 349. 
 
 See SxTEETT, 11, 14, 15. 
 
 ni. REMEDIES. 
 
 28. The liability of the principal in a promissory note, to reimburse his 
 surety for any payment made by the latter, in consequence of his suretyship, 
 commences when the note is delivered to the payee ; and, whenever payment 
 may be made by the surety, he is considered a creditor of his principal, from 
 the time the note was delivered. Sargent v. Salmond, xxvii. 539. 
 
 29. In a suit to recover money paid by the plaintiff, as surety to the de- 
 fendant in a replevin bond, it is no defence that the plaintiff, when he signed 
 the bond, knew that the replevin suit was groundless and malicious. Smith 
 v. Bines, xxxii. 177. 
 
 30. If the maker assents to the alteration of his note by the substitution 
 of another surety, who pays the note, the former is liable to reimburse him. 
 Powers V. Nash, xxxvii. 322. 
 
 31. And such assent may be presumed from his subsequent acts in relation 
 to it, though he was not present when the substitution was made. Powers v. 
 Nash, XXXVII. 322. 
 
 32. Whether the defendant would not be Kable, after having received the 
 benefit of plaintiff's name and having been relieved of his obligations, even 
 without his assent, quere. Powers v. Nash, xxxvii. 322. 
 
 33. From the equitable obligation between the principal and surety, the 
 legal liability arises that the surety shall be saved harmless ; and a promise is 
 implied from their relations, where none in fact existed. Powers v. Nash, 
 XxxTii. 322. 
 
 See Assumpsit, 9. 
 
SURGEON. — SURVEY. — SWINE. 541 
 
 SURGEON. 
 
 A surgeon is only liable for the want of ordinary skiU, and for the want of 
 ordinary care and judgment. Howard v. Grover, xxviii. 97. 
 
 SUKVEY, AND SUEVEYOR OF LUMBER. 
 
 1. A surveyor of lumber is not bound to keep a record of his surveys. 
 His minutes are not of themselves evidence. Ayer v. Sawyer, xxxii. 163. 
 
 2. R. S. of 1841, c. 66, requiring staves to be surveyed, &c., does not apply 
 to pine staves made for fish barrels, but only to certain descriptions of oak 
 staves. Hence, an action may be maintained for the price of such pine staves 
 sold to the defendant, though not culled or surveyed. Oilman v. Perkins, 
 XXXII. 320. 
 
 8. Under a defence that lumber sold and delivered was not legally surveyed, 
 ii a suit to recover the price of it, the onus is upon the defendant. Nutter 
 V. Bailey, xxxii. 504. 
 
 4. If the seller have authorized the purchaser to select a surveyor, the 
 presumption is, that a surveyor was intended by whom the survey could legally 
 be made. Nutter v. Bailey, xxxii. 504. 
 
 See CoNTBACT, 29, 60. 
 
 SURVIVING PARTNER. 
 See ExECTJTOE, 17 — 21. 
 
 SWINE. 
 
 The statute subjects the owner to a penalty, whose swine are found going 
 at large without a keepef, on the highways or town ways. Cleaves v. Jordan, 
 
 xxxiv. 
 
542 TAX. 
 
 TAX. 
 
 I. ASSESSMENT. 
 
 II. ABATEMENT. 
 
 III. SALES OF LAND FOR TAXES. 
 
 IV. REMEDY FOR ILLEGAL ASSESSMENT. 
 V. REDEMPTION AND FORFEITURE. 
 
 VI. EVIDENCE. 
 
 I. ASSESSMENT. 
 
 (a) Upon -what assessment mat be made. 
 
 (b) "Where, and to whom, pkoperty is to be assessed. 
 (o) Making assessments. 
 
 (a) Upon what assessments may he made. 
 
 1 . The Act, incorporating the Cumberland Marine Eailway, authorized the 
 company to hold personal and real estate, and required that the whole pro- 
 perty should be divided into shares, and that such shares should be considered 
 in all respects as personal estate : — Held, that under R. S. of 1841, c. 14, 
 § 51, and Act of 1845, c. 159, § 10, the real estate belonging to the company 
 is liable, as such, to taxation. Gumb. M. Railway v. Portland, xxxvii. 444. 
 
 (b) Where, and to whom, 'property is to be assessed. 
 
 2. The hiring of logs to be sawed does not constitute the owner of them, if 
 non-resident, such an " occupant" of the saw-miU, as to subject the logs to 
 taxation in the town wherein the mill is situated. Camphell v. Machias, 
 xxxiii. 419. 
 
 3. Neither does the payment by him of wharfage for manufactured lumber 
 constitute him such an " occupant" of the wharf, as to subject the lumber to 
 taxation in the town wherein the wharf is situated. Campbell v. Machias, 
 XXXIII. 419. 
 
 4. A town or city tax cannot lawfully be assessed to the mortgagee of land, 
 who is not in possession, and who has never entered to foreclose. Coombs v. 
 Warren, xxxiv. 89. 
 
 5. The capital stock of a bank can only be assessed once, and that upon 
 the stockholders, to the value of their shares. Augusta Bank v. Augusta, 
 xxxvi. 255. 
 
 6. But property composing no part of its capital, so held by a bank, that 
 no other person or corporation could be legally taxed for it, as owner, is lia- 
 ble to be assessed to such bank. Augusta BanTc v. Augusta, xxxvi. 255. 
 
 7. Thus, shares of a railroad corporation, which it may hold by an absolute 
 title, may rightfully be assessed to the bank. Augusta Bank v. Augusta, 
 xxxTi. 255. 
 
 8. A corporation, owning personal property, not composing a part of its 
 capital, may be taxed for it in the town of its established place of business. 
 Augusta Bank v. Augusta, xxxvi. 255. 
 
 9. The term " inhabitants," as used in the E. S. of 1841, embraces bodies 
 corporate, as well as individuals. The property of corporations, when not oth- 
 
TAX. 543 
 
 envise subjected to assessment to the shareholders, is taxable to such corpora- 
 tion. And it is enough to incur such liability, that the corporation shall 
 have the legal ownership. Baldwin v. 2V's Min. Fund of Baldwin, xxxvii. 
 369. 
 
 10. Thus, the trustees of a ministerial fund, though living in different 
 towns, are liable to be assessed for such fund in the town where the income is 
 to be applied. Baldwin v. Tr's Min. Fund of Baldwin, xxxvii. 369. 
 
 (c) Making assessments. 
 
 11. Taxes upon land, having been once paid by the money received upon an 
 illegal sale, cannot be re-assessed, although, through illegality in the proceed- 
 ings, either of the assessors or of the collector, the title of the owner was 
 not impaired. Packard v. New Limerick, xxxit. 266. 
 
 12. A tax cannot be assessed as delinquent highway tax, when the list re- 
 turned by the highway surveyor does not bear his signature ; nor unless the 
 surveyor has given the notice and made the demand for services required by 
 the statute. Patterson v. Creighton, xlii. 367. 
 
 n. ABATEMENT. 
 
 13. Before the provisions of K. S. of 1841, c. 14, § 18, can be made 
 available by any inhabitant, he must personally carry in such list to the as- 
 sessors, and make oath to its correctness, if required ; or show to the commis- 
 sioners that he was unable to offer such list at the time appointed. Winsloiu 
 V. Co. Com., xxxTii. 561. 
 
 ni. SALES OE LAND EOE, TAXES. 
 
 14. In trespass quare clausum, a mere stranger, without semblance of title, 
 cannot object, under the general issue, to the plaintiff's deed, coming from the 
 County Treasurer, purporting -to convey the land for the payment of taxes 
 assessed thereon, because the treasurer had not observed the rules of law, in 
 making the sale. Smith v. Bodfish, xxtii. 289. 
 
 15. But, if the defendant produces a prima facie title to the land, the plain- 
 tiff, to support his tax title, must show that the provisions of the law, authoriz- 
 ing such sale, have been strictly complied with. Smith v. Bodfish, xxvii. 289., 
 
 16. The County Treasurer, in selling a, township of unincorporated land 
 for taxes assessed thereon by the Commissioners, for the purpose of making 
 a road through the same, cannot exempt any portion of the township, except 
 the reserved public lots, from its liability for the tax, unless owned by indi- 
 viduals who have paid their proportions of the tax ; and, in order to authorize 
 a sale of the residue, it should appear, by the recitals in the deed, who had so 
 paid previously to the sale, the amount paid by each, and the quantity of 
 land on which each payment had been made. Smith v. Bodfish, xxtii. 289. 
 
 17. Where a lot of unimproved land is taxed as the " real estate of a non- 
 resident proprietor, whose name is unknown," described in the assessment 
 only as a certain lot On a certain plan of lots in the town,. and is advertised 
 and sold as such for taxes, when in fact, at the time of the assessment and 
 long before and afterwards, the owner, deriving his title of the lot under a 
 deed duly recorded, resided in the same town wherein the land is situated, 
 
544 TAX. 
 
 such sale is illegal, although the collector confonned to the law in all respects 
 in selling. Barker v. Hesseltine, xxvii. 354. 
 
 18. In a County Treasurer's sale of land for taxes, where there is no stipu- 
 lation before the sale that a credit is to be given, and the treasurer receives a 
 note for a part of the purchase money, this does not invalidate the sale. 
 Longfellow v. Quimly, xxix. 196. 
 
 19. The title arising to a town, by a forfeiture of non-resident lands, for 
 the non-payment of town taxes, is not perfected, unless nine months fully expire 
 after the date of the assessment, and before the collector makes to the treas- 
 urer a certificate of the delinquency, to pay the tax ; nor unless the treasurer 
 authenticate, as true, the copy of his printed advertisement, lodged with the 
 clerk ; nor unless it appear that the collector had a warrant from the assessors 
 to collect the tax. Flint v. Saivyer, xxx. 226. 
 
 20. Where the assessment was made August 14, and the collector's return 
 was made May 13, following: — Held, that the collector should have waited 
 during aU the business hours of May 14, before he made his certificate. Flint 
 V. Sawyer, xxx. 226, 
 
 21. Sales of the land of resident proprietors, for the non-payment of taxes, 
 are invalid, unless it appears, from the advertisements for the sale, that nine 
 months from the date of the assessment had already elapsed. Soils v. 
 Clements, xxxii. 67. 
 
 22. Where lands, belonging to a non-resident, are taxed to the tenant in 
 possession, though the tax may rightfully be collected of the tenant, yet, 
 whether, for the collection of the tax, the land can be sold, as land of a resi- 
 dent owner, quere. Holls v. Clements, xxxii. 67. 
 
 23. An agent employed by the owner of land, to bid off the same, when 
 sold at auction for taxes, cannot acquire title to himself, by taking the deed 
 in his own name. Matthews v. Light, xxxii. 305. 
 
 24. In order that a collector's deed of land, sold by him for taxes, shall 
 convey title, it must appear that the provisions of. law, preparatory to and au- 
 thoritative of, such sale, have been strictly complied with. Matthews v. 
 Light, XXXII. 305. Stevens v. McNamara, xxxvi. 176. Phillips v. Phil- 
 lips, XL. 160. 
 
 25. Several lots of land, belonging to a non-resident, were inventoried and 
 valued separately by the assessors. They were taxed in an aggregate sum, 
 and advertised as separate lots, specifying a tax on each: — Held, that a sale 
 of them all, in solido, for a gross sum, for payment of the tax, conveyed no 
 title. Andrews v. Senter, xxxil. 394. 
 
 26. In tax sales under the Act of 1826, e. 337, unless the coUeotor 
 " record and return to the treasurer his particular doings," within thirty days, 
 as required by the eighth section, the sale is void. Andrews v. Senter, 
 XXXII. 394. . 
 
 27. So also it is void, unless the return designate or describe the land sold. 
 Andrews v. Senter, xxxii. 394. 
 
 28. A collector's sale of land for the payment of taxes, under the Act of 
 1821, c. 116, is void, if made more than two years from the date of his tax 
 warrant, although the land was duly seized and advertised within the two 
 years. Usher v. Taft, xxxili. 199. 
 
 29. The recitals in a County Treasurer's deed for the conveyance of land 
 for taxes are not conclusive, as evidence of the facts therein stated. Long- 
 fellow v. Quimly, xxxiii. 457. 
 
TAX. 545 
 
 30. A sale of land, by the County Treasurer, for taxes to build a road in 
 an unincorporated township, was not rendered void under the Act of 1821, 
 c. 118, because .the land did not bring price enough to pay the whole assess- 
 ment ; nor because the assessing oilieers, in computing the number of acres 
 to be assessed, excluded that portion of the tract which was covered by water. 
 Longfellow v. Quiniby, xxxiii. 457. 
 
 31. A party claiming to hold land under a tax title must prove the facts 
 necessary to establish its validity in equity as well as in law. Howe v. Bus- 
 sell, XXXVI. 115. 
 
 32. A sale of land for the non-payment^ of a tax upon an inhabitant, in 
 which he was assessed not only for his own land, but for land which he never 
 owned, or occupied, or claimed, is void. Barker v. Blake, xxxyi. 433. 
 
 33. Where the statute required that the sheriff proceed to sell so much of 
 said land as will discharge said taxes and reasonable expenses, a sale of the 
 whole tract to the highest bidder is invalid. Loomis v. Pingree, XLiii. 299. 
 
 IV. REMEDY FOR ILLEGAL ASSESSMENTS. 
 
 34. Where a person has paid taxes illegally assessed upon him, he cannot 
 recover back the amount, unless he paid them under duress of his person, or 
 seizure of his property, or under protest. Smith v. Beadjield, xxvii. 145. 
 
 35. The mere fact that the taxes were paid to a collector, who had a war- 
 rant for the collection, affords no satisfactory proof of payment by duress. 
 Smiih V. Beadfield, xxvii. 145. • 
 
 36. Neither can he recover them of the town, without proof of payment to 
 some legal officer or agent of the town, authorized to receive the money. 
 Smith V. Beadfield, xxvii. 145. 
 
 37. Where a person has been compelled to pay a town tax, wrongfully as- 
 sessed upon him, he may recover it back from the town in an action for money 
 had and received. Briggs v. Lewiston, xxix. 472. 
 
 38. But the charges for officer's fees and for commitment, cannot be recov- 
 ered from the town. Briggs v. Lewiston, xxix. 472. 
 
 39. If the assessors, through an error in judgment, make an over-valuation 
 of one's property, and thereby assess him too much, or tax him for property 
 not belonging to him, his remedy is not by an action of law, but by an appeal 
 to the County Commissioners. Stickney v. Bangor, xxx. 404. Hemingway 
 V. Machias, xxxiii. 445. 
 
 40. The right of action against a town, under R. S. of 1841, c. 14, § 88, 
 does not extend to errors in judgment respecting the value of personal pro- 
 perty, liable to be assessed. Stickney v. Bangor, xxx. 404. 
 
 V. REDEMPTION AND FORFEITURE. 
 
 41. The assessment and collection of State taxes, for several successive 
 years, after a forfeiture to the State had accrued for the non-payment of a 
 previous year, are not deemed a waiver of the forfeiture. They might be con- 
 sidered a pledge, that the State would still allow the proprietor to redeem 
 against the forfeiture. Hodgdon v. Wight, xxxvi. 326. 
 
 42. A statute, passed several years after such forfeiture had accrued, and 
 allowing the land to be redeemed within a limited time, may be taken into 
 
 69 
 
546 TAX. 
 
 account to show that the State never intended to preclude the proprietor from 
 redeeming. But, under the lights of such a statute, the State, hy continuing 
 to assess and collect the subsequent taxes, cannot be considered to have waiv- 
 ed its claim to the forfeiture, further than it has manifested its intention to do 
 so by its enactments. JSodgdon v. Wight, xxxti. 326. 
 
 43. R. S. of 1841, c. 14, § 87, is still in force, excepting as modified by 
 c. 123, of the Acts of 1844. Hill v. Mason, xxxviii. 461. 
 
 44. To wqrk a forfeiture of lands owned by non-residents, it must appear 
 that the collector certified to the treasurer the delinquencies of the payment 
 of taxes upon such real estate, and that they were advertised within three 
 months. And the party claiming such forfeiture must show that a copy of 
 the delinquencies was lodged with the clerk of the town in which the lands 
 are situated. Sill v. Mason, xxxviii. 461. 
 
 45. An ofier of payment, within the time allowed by law, for the purpose 
 of saving a forfeiture, must be regarded, for that purpose, as equivalent to an 
 actual payment made at the time of the offer, and the money need not be 
 brought into court. Loomis v. Pingree, xliii. 299. 
 
 VI. EVIDENCE. 
 
 46. The Act of 1844, c. 123, § 16, prescribing the evidence necessary to 
 sustain a town-coUector's sale of land for taxes, is applicable to sales made 
 previously, as well as to sales made subsequently to that statute. Freeman 
 v. Thayer^ xxxiii. 76. 
 
 47. The covenants in a collector's deed of land, sold for taxes, that the 
 proceedings, the assessment and sale, were according to law, are not evidence 
 that the necessary steps were taken to pass the title to the grantee, in an 
 action against one in possession under a recorded deed. Phillijos v. Phillips, 
 XL. 160. 
 
 TELEGRAPH. 
 See Wat, 60. 
 
 TENANTS IN COMMON 
 See Joint Tenants, &c. 
 
 TENANT BY CURTESY. 
 See Htjsband and WrpE, 28. 
 
TENDER. 547 
 
 TENANT AT WILL. 
 See Landlokd and Tenant, 7, 8, 9, 10, 12. 
 
 TENDER. 
 
 1. When a contract is made by several persons jointly, and the act to be 
 done by the contractee is that of offering a deed of conveyance, it is not 
 necessary to make the offer to more than one of them. Oatman v. Walher, 
 XXXIII. 67. 
 
 2. When a party has obligated himself to receive a deed of land, and to 
 pay therefor a stipulated sum, and the deed, though refused, was duly tender- 
 ed and placed in a position to await the call of the obligor, the damage to be 
 recovered, in a suit upon the obligation, is the contract price and interest. 
 Oatman v. Walher, xxxiii. 67. 
 
 3. The tender of a deed, and continued readiness to deliver it, by one who 
 had given bond to convey, will transfer no title. Dwinel v. Holmes, xxxiii. 
 172. 
 
 4. A tender of costs, (due on a recognizance to prosecute an appeal,) if not 
 made until after taxation of the costs, is without legal effect. Merrick v. 
 Farwell, xxxiii. 253. 
 
 5. Whether such a tender, though made at the time of the taxation, would 
 be available, non dicitur. Merrick v. Farwell, xxxiii. 253. 
 
 6. For a party who claims under a tender, made after the agreed pay-day, 
 and relies upon circumstances to justify the delay, a suit at law is not an 
 available remedy, although the time of payment was not of the essence of the 
 contract. Hill v. Fisher, xxxiT. 143. 
 
 7. Chapter 115, § 22, of R. S. of 1841, as amended by the Act of amend- 
 ment, authorizing a tender of amends, &c., has reference to the act of tres- 
 pass, and not to the reasons or motives of the trespasser. Hathaway, J., 
 dissenting. Brown v. Neal, xxxvi. 407. 
 
 8. A tender may be made after action brought and before entry, with the 
 same effect as before the commencement of the suit. Gall v. Loihrop, xxxix. 
 434. 
 
 9. Where the principal and sureties on a poor debtor's bond are sued, but 
 no service made, a tender of the amount of the joint liability, including the 
 cost of the virrit, will be sufficient, although the writ may have been sent away 
 to be served, if there is time to have it recalled before it is actually served. 
 Gall V. Loihrop, xxxix. 434. 
 
 10. In such suit, where the tender covers the joint liability, no costs can be 
 recovered by the plaintiff, though he is entitled to a separate judgment against 
 the principal fot twenty per cent, interest on the amount due, beyond the 
 amount tendered. Gall v. Loihrop, xxxix. 434. 
 
 See Tax, 45. 
 
548 TIME.— TITLE TO REAL ESTATE. — TOWN. 
 
 TESTAMENTARY TRUSTEES. 
 
 See PXOBATE COTJET, 16, 20. 
 
 TIME. 
 
 When a statute requires an act to be performed in a certain time from the 
 date of some transaction, the day of such date is excluded, in the computa- 
 tion of the time. Flint v. Sawyer, xxx. 226. 
 
 See Bills, &c. 11, 104, 118. Equity, 139, 140. 
 
 Bond, 30. Limitation, 20 — 23. 
 
 contbact, 68, 79. 
 
 TITLE TO REAL ESTATE. 
 
 1. Where a party claims title to real estate by statute provisions, he must 
 show a strict compliance with such provisions. Storer v. Little, xli. 69. 
 Lumhert T. Hill, xli. 475. Scammon v. Scammon, xli. 561. Benson v. 
 Smith, xLii. 414. 
 
 2. A title cannot be acquired by a location of a lot reserved for public uses, 
 under R. S. of 1841, c. 122, § 4, unless the return of the committee, after 
 having been accepted by the Court, is recorded in the registry of deeds with- 
 in six months. Scammon v. Scammon, xli. 561. 
 
 3. Under an article in a warrant for a tovni meeting, " to see if the town 
 will relinquish their right to any part of the eight rod allowance on lot No. 
 63, to E. S., as a compensation for land had of E. S., on said lot No. 63, for 
 a road for a landing, or act thereon as they may think proper ;" it was voted 
 to relinquish to E. S. two rods of the eight rod allowance, &c. : — Held, that 
 in the absence of evidence showing the mode in which the town " had the 
 land of E. S., the language of the warrant and votes cannot be treated as suf- 
 ficient proof of title. Vassalborough v. S. & K. B. B. Go., xliii. 337. 
 
 TOWN. 
 
 I. POWERS AND LIABILITIES. 
 
 II. MEETINGS, "WARRANT AND RETURN FOR. 
 
 III. TOWN OFEICERS. 
 
 IT. DIVISION or TOWNS. 
 
TOWN. 549 
 
 I. POWERS AND LIABILITIES. 
 
 1. A surveyor of highways, who, after having expended the assessments 
 comniitted to him, is directed by the selectmen to proceed and expend a 
 further sum, has no remedy against the town for remuneration of such sum, 
 unless such direction was in writing. Morrell v. Dixfield, xxx. 157. Field 
 V. Towle, XXXIV. 405. 
 
 2. The plaintiff and another made separate claims against a town, growing 
 out of a connected transaction. The town voted to allow the plaintiff $700, 
 provided the other person would accept $200, for his claim, which he refused 
 to do : — Held, the town had the right to affix the condition ; that it was not 
 of that class which is void because impossible to be performed ; and that it 
 would not support an action for the plaintiff. Morrell v. Dixfield, xxx. 
 157. 
 
 3. A town is not responsible for the failure of the title to land sold and 
 conveyed by their collector for town taxes. Packard v. New Limerick, 
 xxxiv. 266. 
 
 4. The statute imposes no liability upon a town for any defect, or want of 
 repair in its public roads, so long as they are kept in a condition safe and con- 
 venient for travelers. Feck v. Ellsworth, xxxvi. 393. 
 
 5. Sections 57 and 89, of R. S. of 1841, c. 25, entitled " of ways," are 
 in harmony and are counterparts of each other. Peck v. Ellsworth, xxxti. 
 393. 
 
 6. If, from an omission on the part of a town to keep in repair its culvert 
 under one of its public roads, an injury occur to the neighboring land from a 
 flowing back of the water, the remedy, if any, against the town, is only at 
 common law. Peck v. Ellsworth, xxxvi. 393. 
 
 7. When such back-flowing arises from an obstruction placed in the culvert 
 by a mere wrongdoer, the town is not liable either by the statute or common 
 law. Peck v. Ellsworth, xxxvi. 393. 
 
 8. In an action against a town for injury from a defective highway, proof 
 that it was suffered on the precise day alleged in the writ is not required. 
 Tripp T. Lyman, xxxvii. 250. 
 
 9. Towns are bound to make and keep their highways " safe and conven- 
 ient" for travelers. Tripp v. Lyman, xxxvii. 250. 
 
 10. For an injury received by a defect occasioned by the freezing and thaw- 
 ing of the road, towns are liable to the party injured, if they have reasonable 
 notice. Tripp v. Lyman, xxxvii. 250. 
 
 11. But evidence, that a greater portion of the ways in the same town 
 was defective for the same cause only, is inadmissible. Tripp v. Lyman, 
 XXXVII. 250. 
 
 12. The provisions of the common law and of the statute of 22 Henry 
 viii., as to the parties required to keep in repair highways and bridges, have 
 been superseded by R. S. of 1841, c. 25, § 57; since which, the obligations 
 of towns in the premises is absolute and unqualified ; and, for neglect of this 
 duty, they are liable to indictment. State v. Gorham, xxxvii. 451. 
 
 13. Towns may compel the party bound to maintain railroad bridges, built 
 to en,able the railroad to pass over or under .any way, dsc, to make any reason- 
 able repairs, by the writ of mandamus ; or, if they have made any expenditures 
 thereon, may reimburse themselves by an action on the case. State v. Gor- 
 ham, XXXVII. 451. 
 
550 TOWN. 
 
 14. Where a town neglects to open and build a legal road, laid out by the 
 commissioners, within the time limited for that purpose, the town becomes 
 liable at that time to pay the expenses consequent on such neglect. Page, 
 pet'r, xxxTli. 553. 
 
 15. And that, too, although the territory over which the road was laid was 
 incorporated into another town before the road was opened and completed by 
 the agent. Page, pet'r, xxxvii. 553. 
 
 16. Towns, in making necessary repairs upon their streets and sidewalks, 
 may obstruct them and interrupt the public travel, without incurring any 
 liability therefor, if they are not left in the night time without precautionary 
 means for warning travelers of their danger ; in which latter case, towns are 
 liable. Kimball v. Path, xxxviii. 219. 
 
 17. For injuries occasioned by a necessary alteration of an highway through 
 want of sufficient notice or warning of such change, the town is primarily 
 liable, although such alteration is being effected by a railroad company, under 
 authority of their charter. Phillips v. Veazie, xl. 96. 
 
 18. When, by reason of snow drifts, that part of a highway prepared for 
 travel becomes impassable, and a passage way outside and over the gutter of 
 the road is used instead of it, the town is liable for damages sustained by 
 travelers over such passage way. And if a thaw and rain occur prior to the 
 accident, it is sufficient notice to the town that such passage way is unsafe. 
 Savage v. Bangor, xl. 176. 
 
 19. A town can maintain no action against an individual for destroying a 
 bridge, being part of one of their highways which they were bound to keep 
 in repair, until they have repaired it or incurred some expense in consequence 
 of the wrongful act. Freedom v. Weed, XL. 383. 
 
 20. As a general rule, corporations are not responsible for the unauthorized 
 or unlawful acts of its officers. Mitchell v. BocJdand, xli. 363. 
 
 21. A town is not legally responsible for improper proceedings, willful or 
 otherwise, by the majority of a school district. Trim v. Charleston, xli. 
 504. 
 
 22. Towns are not responsible for nuisances arising from the unlawful use 
 of the highway without their knowledge or assent, the road, as a road, being 
 safe and convenient. Davis v. Bangor, XLil. 522. 
 
 23. A city is not liable for an injury occasioned by teams standing on a 
 bridge or street for market, and waiting for purchasers under the care of their 
 drivers. Davis v. Bangor, xlii. 522. 
 
 24. While A. was driving his horse, harnessed to a chaise, over a bridge, 
 the horse took fright at a tree on a wagon which was standing there tempo- 
 rarily, in charge of the driver, ran away, overturned the chaise and injured 
 A.: — Held, that the town was not liable therefor, either civilly or criminally. 
 Davis V. Bangor, xlii. 522. 
 
 25. Municipal officers cannot bind their town or city by their individual 
 assent to the wrongful acts of others. Davis v. Bangor, xlii. 522. 
 
 See Committee. 
 
 CoNTAGiotrs Sickness. 
 Ways. 
 
TOWN. 551 
 
 n. MEETINGS, WARRANT AND RETURN FOR. 
 
 26. Under an article in a warrant, " to choose selectmen, assessors and all 
 other officers that the law requires or may be thought necessary," a fish com- 
 mittee may be legally chosen. Spear v. Robinson, xxix. 531. 
 
 27. Where the return upon a warrant for a town meeting did not show that 
 the copies posted were attested, or that they were posted in conspicuous 
 places, evidence to these points will not cure the defect, in a penal action. 
 Fossett V. Bearce, xxix. 523. 
 
 28. An officer's return that he posted the notices in a "public" place, 
 without saying in a " public and conspicuous" place, is insufficient. Bearce 
 V. Fossett, xxxiT. 575. 
 
 29. In a warrant calling a town meeting to act upon the acceptance of a 
 town way, a general description of the way is sufficient. State v. Beeman, 
 XXXV. 242. 
 
 30. Where it was required by a town, that notice of its meetings should 
 be posted at the town-house on a specified street, posting at "the town-house" 
 was held sufficient, it not being shown that more than one town-house ex- 
 isted. State V. Beeman, xxxv. 242. 
 
 ni. TOWN OFFICERS. 
 
 (a) Election and auALiFicATioN. 
 
 (b) POWEKS AND DUTIES. 
 
 (a) Election and qualification. 
 
 31. Where the statute requires that certain town officers shall be freehold- 
 ers, the choice of a person who is not a freeholder is merely void. Spear v. 
 Bolinson, xxix. 531. 
 
 32. At a meeting insufficiently called, no officer can be legally chosen. 
 Bearce v. Fossett, xxxiv. 575. 
 
 33. A person elected at such meeting, though sworn into office, can draw, 
 from such an election, no justification for acts done under color of the office. 
 Bearce v. Fossett, xxxiv. 575. 
 
 34. Where one, justifying as a town officer, has read the record of his elec- 
 tion, it is competent for the other party to show the illegality of the election, 
 by reading from the record a copy of the return upon the warrant calling the 
 meeting. Bearce v. Fossett, xxxiv. 575. 
 
 35. The words " duly sworn," or " sworn according to law," when applied 
 to any officer who is required to take and subscribe the oath prescribed in the 
 constitution, are to be construed to mean, that he has taken the oath as re- 
 quired ; and, when applied to any other person, that such person has taken 
 an oath faithfully and impartially to perform the duties assigned to him in the 
 case specified. Bennett v. Treat, xii. 226. 
 
 (b) Powers and duties. 
 
 36. In drawing an order upon the treasurer, in payment of a debt due 
 from the town, the selectmen have authority to make it negotiable in its form. 
 Willey v. Greenfield, xxx. 452. 
 
552 TOWN CLEEK.— TREATIES. 
 
 37. There is no law requiring city or town officers to know the contents of 
 all the corporation records. Lancey v. Bryant, xxx. 466. 
 
 38. Diligence and care, in ascertaining the contents of corporation records 
 upon a specified subject, cannot be required of the corporation officers, while 
 it is not shown, that they knew of the existence of such records. Lancey 
 V. Bryant, xxx. 466. ' 
 
 IV. DIVISION or TOWNS. 
 
 39. The boundaries of towns are created, and may be changed by Legis- 
 lative enactments ; but no corporate acts by the inhabitants thereof can alter 
 them. Mam v. Sawyer, xxxviii. 37. 
 
 40. All that part of the town of Monmouth which was excluded therefrom, 
 by the new western boundary established by the Act of March 3, 1809, was. 
 included in, and became a part of the town of Leeds. Ham v. Sawyer, 
 XXXVIII. 37. 
 
 TOWN CLERK. 
 
 1 . Town clerks are not restricted in making the records of the births and 
 deaths, which occur during their continuance in office, and they are not for- 
 bidden to record births and deaths, even a longer time than six months after 
 their occurrence. Lake v. Ellsworth, XL. 343. 
 
 2. But, when the record is once made, the loss or destruction of it will not 
 authorize the clerk to demand remuneration for making a new one, without 
 authority from the town. Lake v. Ellsworth, xi. 343. 
 
 3. For recording all births and deaths in the town, which have come to Ms 
 knowledge, and which had not been previously recorded, the clerk is entitled 
 to the statute remuneration from the town. Lake v. Ellsworth, XL. 343. 
 
 TREATIES. 
 
 1. Although the preamble to a treaty does not form a part of the contract, 
 its averments are to be regarded as admitted truths. Little v. Watson, xxxii. 
 214. 
 
 2. When the language used clearly declares a fact, or grants, confirms or 
 defines a right, it must be efiectual, even if inconsistent with the purpose 
 disclosed by the correspondence which preceded it. Little v. Watson, xxxii. 
 214. 
 
 3. The treaty of Washington, of 1842, asserts, that that part of the line 
 dividing the United States from New Brunswick, between the monument at 
 the source of St. Croix and St. John rivers, was never ascertained and de- 
 
TREES.— TRESPASS. 553 
 
 termined; and the fact thus asserted is not to be brought into question. 
 Little V. Watson, xxxii. 214. 
 
 4. This treaty established, between said monument and the St. John river, 
 a new conventional line of boundary between this State and New Brunswick, 
 irrespective of the one provided for by the treaty of Paris, in 1783. Little v. 
 Watson, XXXII. 214. ' 
 
 5. One, who, at the time of the ratification of the treaty of Washington, 
 was, and for several years, had been in possession of land under a grant from 
 New Brunswick, has a title, which, by the 4th article of said treaty, is "held 
 valid, ratified and confirmed" to him, although said land in fact lies within the 
 limits of the United States, as established conventionally by the same treaty. 
 And that provision is binding upon this Court, without the interposition of 
 any legislative action. Little v. Watson, xxxii. 214. 
 
 6. Grants of land made by the British government, within the scope of 
 that provision, cannot be vacated, even in a suit for the same land brought by 
 a grantee of the State, within whose territory it is found to belong. Little v. 
 Watson, XXXII. 214. 
 
 TREES. 
 
 Trees, so soon as severed from the soU, become personal property. Moody 
 V. Whitney, xxxiv. 563. Whidden v. Seelye, xx. 247. 
 
 TRESPASS. 
 
 I. WHEN THE ACTION "WILL LIE, AND FOR WHOM, 
 n. PLEADINGS, JUDGMENT AND EVIDENCE. 
 
 I. WHEN THE ACTION WILL LIE, AND FOR WHOM. 
 
 (a) Fob injukies to beal estate. 
 
 (b) Fob injuries to pebsonal estate. 
 
 (c) Fob injukies ttnbeb process op law. 
 
 (a) For injuries to real estate. 
 
 1. Where a trespass has been committed upon land, of which the plaintiff 
 is part owner, it cannot be defeated by a subsequent paynient to his co-tenant. 
 Longfellow v. Quimby, xxix. 196. 
 
 2. Nor is the trespass a wanton one, as a matter of law, though committed 
 without license from any owner of the land. Longfellow v. .Quimby, xxix. 
 
 3._ If cattle, being wrongfully upon land, pass therefrom upon the plaintiff's 
 adjoining unfenced lot, not bordering upon the highway, he may maintain 
 trespass therefor against their owner. Lord v. Wormwood, xxix. 282. 
 
 4. If a mortgager's tenant at will refuse to attorn to the mortgagee, (after 
 70 
 
554 TRESPASS. 
 
 having entered to foreclose,) or to quit the premises, the mortgagee may main- 
 tain trespass against him, for the subsequently accruing rents. Sill v. Jor- 
 dan, XXX. 367. 
 
 5. One co-tenant may recover, by trespass against another, treble damages 
 for strip and waste committed by him, during the pendency of a petition for 
 partition, though the defendant be the petitioner. Maxwell v. Maxwell, 
 XXXI. 184. 
 
 6. In a tenancy at sufferance, of a house and lot, the landlord is chargeable 
 in trespass quare clausum, for entering by force to the injury of the tenant or 
 his family, even after two months verbal notice. Brock v. Berry, xxxi. 293. 
 
 7. Trespass quare clausum may be maintained by the owner of land, 
 for an injury to the freehold, though it be in the occupation of his tenant at 
 will. Davis v. Mash, xxxii. 411. Jewett v. Whitney, xliii. 242. 
 
 8. A tenant in common of a meeting-house may maintain trespass for 
 injury to one of the pews, against a stranger to both the pew and meeting- 
 house. Murray v. Gargill, xxxil. 517. 
 
 9. Where there has been no legal division fence between adjoining lots, it 
 is trespass, if the cattle of the owner of one cross upon the land of the other. 
 Sturtevant v. Merrill, xxxiii. 62. 
 
 10. A reversioner, though wrongfully in possession, may maintain trespass 
 against a mere stranger to the title. Rollins v. Clay, xxxiii. 132.- 
 
 11. An action of trespass quare clausum may be maintained against the 
 mortgagee of a railroad corporation, (who had entered to foreclose his mort- 
 gage,) for a continuance of the occupation of the land taken under the rail- 
 road charter, unless, within a reasonable time after the commencement of such 
 occupation, compensation be made or tendered. And, under such circum- 
 stances, the plaintiff may recover for all the injuries, occasioned by the prior 
 occilpation. Cushman v. Smith, xxxir. 247. 
 
 12. The levy of an execution upon the property of a corporation is not a 
 trespass, though, both in the judgment and in the execution, their name is 
 variant from that given by their charter. Wilton Manuf'g Go. v. Butler, 
 XXXIV. 431. 
 
 13. In trespass quare clausum, an absolute title is not essential. Dunlap 
 V. Olidden, xxxiv. 517. Hunt v. Rich, xxxviii. 195. 
 
 14. Against an occupant of land, whose' possession has been of such a 
 character and continuance as to entitle him to betterments, trespass quare 
 clausum will not lie for acts done during such possession. Paine v. Marr, 
 xxxv. 181. 
 
 15. Until a tenancy at will is terminated, trespass quare clausum, by the 
 owner against the tenant, cannot be maintained. Young v. Young, xxxvi. 
 133. 
 
 16. Where contractors with a town to open a county road invited another 
 individual to pass over the road while in process of construction, to test its 
 efficiency, such person is not liable in trespass to the owner of the soil. 
 Wight v. Phillips, xxxvi. 551. 
 
 17. A recorded'deed of real estate is sufficient authority for the holder to 
 maintain trespass for a wrong to the estate ; and the defendant cannot con- 
 trovert the plaintiff's title of record, unless his acts were authorized by one 
 having title or right thereto. Wentworth v. Blanchard, xxxvii. 14. 
 
 18. One, without lawful authority from the town obligated to keep it in 
 repair, cannot reconstruct one of its highways, and make it safe and conve- 
 
TRESPASS. 555 
 
 nient in parts of it not previously actually used by travelers. For such acts 
 he is liable in trespass to the owner ; and. possession is sufficient title in such 
 case. Hunt v. Rich, xxxviil. 195. 
 
 19. Trespass quare clausum cannot be maintained by the owner of land, 
 for an injury to the grass only, while in the occupation of his tenant at will. 
 Lyford v. Toothaker, xxxix. 28. 
 
 20. A conveyance of land, for a valuable consideration, was made by a 
 debtor, with the intent to defraud his creditors, but without that knowledge 
 on the part of the grantee, who afterwards conveyed it to a third person, the 
 original fraudulent grantor paying the consideration therefor ; whereupon a 
 prior creditor levied upon said land: — Held, that no title passed by the ]e%7 ; 
 and that, for any acts of ownership upon such land, under such levy, the 
 creditor is liable in trespass to the legal owner. Bavis v, Tihhets, xxxix. 
 279. 
 
 21. An action of trespass on the case is maintainable by the owners of the 
 fee, against a tenant at will, for acts prejudicial to the inheritance. Files v. 
 Magoon, xii. 104. 
 
 22. The wrongful possession and conversion of the property of a corpora- 
 tion does not differ fcom any other trespass or tort, for which the sufferer has 
 a remedy at law. York & G. R. B. Go. v. Myers, xm. 109. 
 
 23. A -person's possession is presumed to be co-extensive with his grant, 
 where there is no adverse possession ; and that is sufficient to enable him to 
 maintain trespass quare clausum. Melcher v. Merryman, XLi. 601. 
 
 24. Where an entry is made under authority or license given to the party 
 by law, and he abuses it, he becomes a trespasser ah initio. Hunnewell v. 
 Eohart, xiii. 565. 
 
 25. Where an entry is made by the authority or license of the party in pos- 
 session, and the person so entering abuses the privilege, he is liable for such 
 abuse, but is not a trespasser ab initio. Hunnewell v. Hobart, xiii. 565. 
 
 26. A co-tenant in possession may maintain trespass quare clausum, against 
 a stranger for an injury to the freehold. Jeweit v. Whitney, xiiii. 242. 
 
 27. Trespass is the proper form of action to recover damages arising frpm 
 the building of a dam, whereby the plaintiff's hay was injured. Reynolds v.* 
 Ghandl. River Go., xiiii. 513. 
 
 (b) For injuries to personal estate. 
 
 28. Where timber was cut, upon two tracts of adjoining lands of different 
 owners, by a trespasser, and the whole was so intermixed by him, or persons 
 claiming under him, that the part belonging to each owner could not be dis- 
 tinguished ; and the owner of one tract seized and took possession of the 
 whole: — Held, ttat one claiming under the wroijgdoer could not maintain 
 trespass against him for such taking. Bryant v. Ware, xxx. 295. 
 
 29. An officer who seizes goods as the property of a debtor, which do not 
 belong to him, is a trespasser ; and no subsequent disposition of the property 
 can deprive the true owner of his rights thereto. Symonds v. Hall, xxxvii. 
 354. 
 
 30. A purchaser of such goods, at a public sale, acquires no title to the 
 property as against the owner ; and,' if he remove them, he is liable in tres- 
 pass. And the officer and purchaser may be joined in one action. But 
 
556 TBESPASS. 
 
 damages for the separate trespass of one of the defendants cannot be included 
 in a judgment against both. Symonds v. Hall, xxxvii. 354. 
 
 31. A settlement by one of two joint trespassers, for one-half of the pro- 
 perty taken, wiU not preclude the owner from maintaining trespass against 
 the other to recover the balance ; and though the trespassers were partners. 
 McCrilUs V. Eawes, xxxtiii. 566. 
 
 (c) Under process of law. 
 
 32. A collector of taxes, who receives a surplus of money upon the sale of 
 property for a tax, and omits to render to the owner " an account in writing," 
 of the sale and charges, is a trespasser ab initio. Blanchard v. Dow, xxxii. 
 557. 
 
 33. An officer, who had authority to remove from the street the building of 
 another person, and made sale of a part of its materials after such removal, is 
 a trespasser ah initio ; and is chargeable for the whole value of the building. 
 Mussey v. Gahoon, xxxiv. 74. 
 
 34. Trespass cannot be maintained against an officer for selling, on execu- 
 tion, by virtue of an attachment on the writ, property which the debtor claim- 
 ed to hold exempt from liability for debt, unless it was exempt when attached. 
 Greaton v. Fike, xxxiv. 233. 
 
 35. An officer who attaches property on mesne process, and sells it thereon, 
 without the consent of the creditor or owner, or otherwise than by the mode 
 prescribed in E.. S. of 1841, c. 114, § 53, becomes a trespasser ah initio ; and 
 the pendency of the action, on which such property was attached, interposes 
 no obstacle to an immediate suit by the owner. Boss v. Philhrich, xxxix. 29. 
 
 36. The rights of a plaintiff, in trespass, are not enlarged by the fact that 
 the defendant seized the property sued for under an Ulegal warrant, if, at the 
 time of the seizure, the plaintiff held the property in disregard of law. Lord 
 V. Chadbourne, xlii. 429. 
 
 II. JUDGMENT, PLEADING AND EVIDENCE. 
 
 37. In trespass quare clausum, evidence of acts upon other lands of the 
 plaintiff, than those described in the writ, is inadmissible. Longfellow v. 
 Quimhy, xxix. 196. 
 
 38. In trespass for strip and waste, by one co-tenant against another, if the 
 whole of an averment might be stricken out, and yet leave sufficient allega- 
 tions upon which to support the action, such averment need not be proved. 
 Maxwell V. Maxwell, xxxi. 184. 
 
 39. The declaration need not name the other co-tenants. Aliter, in suits 
 against strangers to the common property. Maxwell v. Maxwell, xxxi.. 184. 
 
 40. In trespass quare clausum, no one can justify under another's title, ex- 
 cept by showing that the acts were done by his authority. Dunlap v. Olid- 
 den, XXXI. 510. Wentworth v. Blanchard, xxxtii. 14. Blaisdell v. Roh- 
 erts, XXXVII. 239. 
 
 41. It is sufficient to sustain trespass for cutting trees upon the land of the 
 plaintiff, where the line is in dispute, if the jury are satisfied that the defend- 
 ant cut them, and they believe that the evidence in relation to the land clearly 
 preponderated in favor of the plaintiff. Moulton v. Powers, xxxii. 375. 
 
TRESPASS. 557 
 
 42. A recovery and satisfaction of a judgment, against one of several joint 
 trespassers upon land, wiU discharge an action by the same plaintiff, previous- 
 ly commenced against another joint trespasser for the same act. Mitchell v. 
 Libbey, xxxiii. 74. 
 
 43. To trespass for breaking and entering a building, it is no defence that 
 an article, belonging to the defendant, had been deposited, by his consent, 
 within the building, and that the breaking and entering were for the purpose 
 of taking it away. Orocher v. Carson, xxxiii. 436. 
 
 44. In trespass quare clausum, if the defendant plead not guilty to the 
 whole trespass alleged, with or without a brief statement, the plaintiff has no 
 occasion to make a new assignment. Palmer v. Dougherty, xxxiii. 502. 
 
 45. Tenants in common may join or sever in personal actions for injuries to 
 their land. Palmer v. Dougherty, xxxiii. 502. 
 
 46. An allegation for breaking and entering into land is of substance ; and 
 a count, containing no such allegation, but framed technically in case, for in- 
 juries to land, or in trespass de bonis, for goods taken from it, cannot be sus- 
 tained by proof merely of an unlawful entry. Sawyer v. Goodwin, xxxiv. 
 419. 
 
 47. Nor can a declaration in trespass quare clausum, alleging immediate 
 acts of injury to land, be sustained by proof of an injury consequentially 
 resulting from acts done on the land. To such a declaration, an amendment, 
 introducing a count in case, is not allowable. Sawyer v. Goodwin, xxxit. 
 419. 
 
 48. To support trespass, for an injury done by a party in the exercise of his 
 lawful rights, it must appear that no neglect or want of care on the part of 
 the plaintiff co-operated in producing the injury. Waldron v. P. 8. S P. 
 B. E. Co., XXXV. 422. 
 
 49. In such a suit, the plaintiff must show the exercise of ordinary care on 
 his part, and the omission of some duty or the commission of some wrong 
 on the part of the defendant, by which the injury was produced. Waldron 
 V. P. S. & P. B. B. Co., XXXV. 422. 
 
 50. If the injury be such as must have occurred wholly from the careless- 
 ness of one of the parties only, the plaintiff must show that it was on the 
 part of the defendant. Waldron v. P. S. & P. B. B. Co., xxxv. 422. 
 
 51. A judgment in trespass against the principal for the act of his servant, 
 rendered upon a trial of the merits of the case, is a bar to a suit against the 
 servant for the same act ; and parol evidence is admissible to show that the 
 same matter was directly in issue in the two suits. Emery v. Fowler, 
 XXXIX. 326. 
 
 52. And, where such judgment was rendered after the pleading of the 
 general issue in the action against the servant, it is admissible under that 
 plea. Emery v. Fowler, xxxix. 326. 
 
 53. To maintain trespass quare clausum, against the owner of the opposite 
 shore for intermeddling with his dam, the owner of the dam must show his 
 prescriptive right by adverse occupation twenty years. Trash v. Ford, 
 XXXIX. 437. 
 
 See Amendment, 17. 
 
558 TROVER. 
 
 TROVER. 
 
 I. WHEN IT LIES. 
 
 II. PARTIES. 
 
 III. CONVERSION. 
 
 IV. PLEADINGS. 
 
 I. WHEN IT LIES. 
 
 1. Where goods were sold while in the tortious possession of a third per- 
 son claiming them, the purchaser, after demand, may maintain trover for them 
 against such third person, though they were never delivered. Cartland v. 
 Morrison, xxxii. 190. 
 
 2. Trover is a transitory action ; and it lies for a conversion of property, 
 committed within the limits of a foreign jurisdiction. Rohinson v. Arm- 
 strong, XXXIV. 145. Whidden v. Seelye, XL. 247. 
 
 3. A person who has no possession, actual or constructive, of property, at 
 the time of a demand by the owner, nor has previously wrongfully possessed 
 or withheld it, cannot be made liable in trover for refusal to deliver it, al- 
 though he may have withstood the efforts of the owner to obtain possession, 
 or prevented him by force. Boohier v. Boohier, xxxix. 406. 
 
 4. In trover, the action may be defeated by showing that the plaintiff had 
 no title at the commencement of the suit. Glapp v. Glidden, xxxix. 448. 
 
 5. In trover, when the property of plaintiff is once established, possession 
 by the defendant wUl not draw after it that presumptive evidence of owner- 
 ship which will excuse him from proving title. Weston v. JSiggins, xi. 102. 
 
 6. The plaintiff, being a bankrupt, deposited certain negotiable and nego- 
 tiated notes with the executor of his father's wUl, and afterwards procured 
 them, by giving a bond of indemnity to secure the executor against any lia- 
 bility to the creditors and legatees of the estate, and also against the plain- 
 tiff's assignee in bankruptcy, or the assigns of such assignee ; at the same 
 time, he passed over the notes to his surety on the bond, to indemnify him for 
 signing it. The surety transferred the same notes to the defendant, and took 
 a bond from him against his said liability. Afterwards, the plaintiff's as- 
 signee in bankruptcy sold his right in this and other property, and the pur- 
 chaser, in an action of trover against the executor, obtained a judgment for 
 the value of the notes : — Held, that the defendant had a right to withhold 
 the notes from the plaintiff; and that trover would not lie. Perley v. Dole, 
 XL. 139. 
 
 7. A mortgagee in possession may maintain trover against a stranger who 
 cuts trees upon the mortgaged premises and takes them away. Whidden v. 
 Seelye, xl. 247. 
 
 8. The owner of land, refusing to deliver to the purchaser a dwellinghouse 
 erected upon such land by the owner's consent, and, by his acts, showing an 
 appropriation of it to his own use, is liable in trover. Pullen v. Bell, xl. 314. 
 
 9. Trover will not lie against a depositary, who sells goods in his charge at 
 a price less than the one fixed by the owner. It is a breach of duty, rather 
 than an unlawful conversion. Marr v. Barrett, XM. 403. 
 
 10. M. instructed B., his factor, to sell a quantity of hay in W. But B., 
 without authority, and having made no advances whereby he could have a 
 
TROVER. 559 
 
 lien thereon, sent it to B. and sold it there : — Held, that this was a tortious 
 conversion; and that trover vcould lie. Marr v. Barrett, xli. 403. 
 
 11. Trover will not lie without proof of property and the right of immedi- 
 ate possession in the plaintiff. Ames v. Palmer, xlii. 197. 
 
 See Eevenue Laws. 
 
 II. PARTIES. 
 
 12. One co-tenant may maintain trover against another who has assumed 
 to own and sell the whole of the common property, such assumption being 
 sufficient evidence of conversion. Wheeler v. Wheeler, xxxiir. 347. 
 
 13. Where the consignee of goods sells them with intent to defraud his 
 consignor, and this intent is known to the vendee, it is a simultaneous joint 
 conversion, for which trover will lie by the consignor against both. White 
 V. Wall, XL. 574. 
 
 III. CONVERSION. 
 
 14. Where the defendant knew of the wrong of S., and undertook to aid 
 him in secreting the plaintiff's sheep, and keep them from the true owner ; 
 or when- the defendant had been indemnified, before the suit was commenc- 
 ed, for withholding the sheep from the true owner, and prevented her from 
 enjoying her property ; or when he confederated with P. & S. for that pur- 
 pose, and did withhold the sheep, it is a conversion. Scott v. Perkins, 
 XXVIII. 22. 
 
 15. Conversion is sufficiently established by proof that the defendant had 
 claimed the property as his own, and attempted to dispose of it for his own 
 benefit. Dickey v. Franklin Bank, Xxxii. 572. 
 
 16. A wrongful assumption of dominion over trees, severed from the soil, 
 is a conversion of them. Moody v. Whitney, xxxiv. 563. 
 
 17. So is a tortious taking. Moody v. Whitney, xxxit. 563. 
 
 18. Property may be wrongfully converted by two or more persons jointly, 
 although the acts of one may have followed the acts of the other at succes- 
 sive periods of time, in producing the result. Gram v. Thissell, xxxv. 86. 
 
 19. Thus, where one unlawfully put his mark upon saw-logs, not belonging 
 to himself, to aid another person in appropriating them wrongfully, and such 
 other person, knovying that purpose, accordingly, at a subsequent time, took 
 and used them, the conversion was held to be joint. Cram v. Thissell, 
 xxxv. 86. 
 
 20. Where the defendants in troTer set up title to the property by purchase, 
 and fail to establish it, the conversion takes place when they received it and 
 claimed it. Bead v. Goodiuin, xxxvii. 181. 
 
 21. There can be no conversion of property without an actual possession 
 of it, or the exercise of such a claim of right or of dominion over it, as 
 assumes a right to hold the possession or to deprive the other party of it. 
 Fernald v. Chase, xxxvii. 289. 
 
 ^ 22. To make out a conversion, there must be proof of a wrongful posses- 
 sion, or of the exercise of a dominion in exclusion or defiance of the owner's 
 right, or of an unauthorized and injurious use, or of a wrongful detention after 
 demand. Fernald v. Chase, xxxvii. 289. Fuller v. Tahor, xxxix. 519. 
 
660 TRUSTEE PROCESS. 
 
 23. A mere declaration of ownership, witliout the taking of any possession 
 or the exercise of any dominion, does not constitute a conversion. Fernald 
 V. Chase, xxxvii. 289. 
 
 24. Thus, a declaration by an officer that he has attached personal property, 
 •without proof that he has taken possession or exercised any dominion or 
 control of it, is not a conversion. Fernald v. Chase, xxxvii. 289. 
 
 25. Neither will such a declaration, made when in contact with the pro- 
 perty, counting it, followed by a return of an attachment on the Avrit, and by 
 certifying a copy of such return to the town clerk, and by the taking of an 
 accountable receipt for it as property attached, justify a ruling, as matter of 
 law, that there has been a conversion. Fernald v. Chase, xxxvii. 289. 
 
 26. The taking a quitclaim deed of a house and lot, and causing it to be 
 recorded, is not of itself sufficient evidence of a conversion of the house, 
 which was personal property. Fuller v. Tabor, xxxix. 519. 
 
 27. The law recognizes no distinction between an unlawful transportation 
 and a tortious conversion. Marr v. Barrett, xli. 403. 
 
 rv. PLEADING. 
 
 28. Where one, having tortiously cut and carried away trees from the land 
 of another, sells a part of them to a person having no knowledge of the 
 ■wrong, the owner, though he can maintain trover against them jointly, can 
 recover of the vendee only the value of the part which he purchased. Moody 
 v. Whitney, xxxiv. 563. 
 
 29. An action of trover, in the form of an original summons, will be main- 
 tainable, unless the objection be taken seasonably in abatement or by motion; 
 otherwise, it wUl be considered as waived. White v. Wall, xe. 574. 
 
 See Amendment, 12. 
 
 TRUSTEE PROCESS. 
 
 I. PEOCESS. 
 
 II. DISCLOSURE. 
 
 in. WHEN THE TRUSTEE WILL BE CHARGED. 
 
 IV. WHEN DISCHARGED. 
 
 V. EFFECT AS BETWEEN THE PRINCIPAL AND TRUSTEE. 
 
 VI. PRACTICE. 
 
 Vn. GENERALLY. 
 
 I. PROCESS. 
 
 (a) When maiktainable. 
 
 (b) Where, and against whom. 
 
 (a) When maintainable. 
 
 1. If no tangible property of the principal defendant has been attached, 
 and if neither he nor the supposed trustee reside within this State, the Court 
 
TRUSTEE PROCESS. 561 
 
 has no jurisdiction. And a judgment, rendered against the trustee in such 
 suit, is void. Golumbus Ins. Go. v. Eaton, xxxv. 391. Smith v. Eaton, 
 XXXVI. 298. 
 
 2. Such a suit, if the objection be seasonably taken, wUl abate. Smith v. 
 Eaton, XXXVI. 298. 
 
 (b) Where, and against whom. 
 
 3. A trustee process, wherein the only trustees are a corporation aggregate, 
 must be brought in the county in which they have their established and usual 
 place of business, and held their last annual meeting. And if not there 
 brought, the principal defendant, as well as the trustee, may abate the pro- 
 cess by seasonably pleading the objection. Scudder v. Davis, xxxiii. 575. 
 
 II. DISCLOSURE. 
 
 4. If mortgagees of personal property, when summoned as trustees of the 
 mortgager, would rely upon a foreclosure, they must disclose the conditions 
 of the mortgage, and state that a foreclosure had occurred. Dexter v. Field, 
 XXXII. 174. 
 
 5. A corporation, summoned as trustees, may disclose by attorney, who 
 need not be a member of the corporation or their general business agent. 
 Head v. Merrill, xxxiv. 586. 
 
 6. The answers, made by such attorney, are to be considered true, until 
 disproved. Head v. Merrill, xxxit. 586. 
 
 ' 7. When such attorney shall have answered all interrogatories put to him, 
 according to his best information and belief, if his statements show that the 
 corporation had no goods, eifects or credits of the defendant, and if no oppos- 
 ing proof be introduced, the supposed trustees are to be discharged, although 
 the disclosing attorney had no personal knowledge of the dealings between 
 them and the defendant, but derived his knowledge wholly from the books 
 of the corporation and the statements of their officers. Head v. Merrill, 
 XXXIT. 586. 
 
 8. It is no valid objection to a trustee's disclosure on scire facias, that it 
 was made before a justice of the peace. Smith v. Eaton, xxxvi. 298. 
 
 9. Whether a trustee, who has suffered a default in the original suit, can, 
 by a disclosure on scire facias, take objection to the jurisdiction, quere. 
 Smith V. Eaton, xxxvi. 298. 
 
 10. A trustee, indebted to the principal defendant for his "personal labor,'' 
 is bound to disclose not only the indebtedness, but also that it accrued for 
 such labor. And if he do not so disclose, a judgment against him, as trustee, 
 wUl furnish no protection in an action against him by the principal for the 
 services. Loch v. Johnson, xxxvi. 464. 
 
 11. A corporation, in making a disclosure by their agent in a trustee pro- 
 cess, is not concluded by the entries upon their books ; if the agent discloses 
 there was a mistake or fraud in the amount of credit reported, and no facts 
 were disclosed showing the contrary, .and the debt is larger than the credit as 
 disclosed, the corporation is not chargeable. Bigelow v. York & G. R. B. 
 Co., xxxvii. 320. 
 
 12. If one, summoned as trustee, is notified that the debt by him owing 
 has been assigned to a third person, and he neglects to disclose such assign- 
 
 71 
 
562 TRUSTEE PROCESS. 
 
 ment, the trustee judgment, and payment of it on a legal demand, furnish to 
 him no protection against the claims of the assignee. Milliken v. Loring, 
 XXXVII. 408. Bunker v. Gilmore, xl. 88. 
 
 13. A supposed trustee is under no obligation to disclose transactions dis- 
 paraging his title to real estate. Moor v. Toivle, xxxviii. 133. 
 
 14. By R. S. of 1841, c. 119, § 79, the Court, in its discretion, for good 
 cause shown, may permit or require a trustee, who has been examined in the 
 original suit, to be examined anew in a suit of scire facias. McMillan v. 
 Hohson, XLX. 131. 
 
 15. A trustee, by his disclosure, must distinctly and unequivocally negative 
 the idea that he had funds of the principal defendant in his possession, or he 
 wUl be charged. Toothaher v. Allen, xii. 324. 
 
 16. If the trustee, in his disclosure of fabts, is vague and unsatisfactory; 
 or if, keeping accounts with the principal defendant, he fails to state them ; or 
 if, doing business with him, and not keeping such accounts, he fails to assign 
 a sufficient reason for the neglect, he must be charged. Toothaher v. Allen, 
 XLI. 324. 
 
 17. The general denial of liability by a trustee is in the nature of a plea, 
 and subject to a full svibsequent investigation by question and answer. Tooih- 
 aker v. Allen, xli. 324. 
 
 in. WHEN THE TRUSTEE WILL BE CHARGED. 
 
 (a) Foe specific propekty in his hands. 
 
 (b) EoE INDEBTEDNESS OR OTHER LIABILITY. 
 
 (a) For specific property in his hands. 
 
 18. One, having a lien upon goods with power to sell, and, before they 
 came to his actual possession, being summoned as trustee of the-general own- 
 er, (the right to take possession having been postponed for a limited period 
 by the lien contract,) will be charged as trustee, if he afterwards take and 
 sell the goods, at a price more than enough to discharge the lien ; even though 
 he took negotiable notes for the goods, and held the same unpaid at the time 
 of the disclosure. Brunswick Bank v. Sewall, xxxiv. 202. 
 
 19. A. placed goods in the hands of B., as collateral security, with power 
 to sell, the surplus avails to be accounted for to A., who then, for the purpose 
 of securing C, in the sum of $75, gave to C. a draft upon B. for the surplus. 
 B. accepted the draft, and was immediately afterwards summoned as trustee 
 in this suit. He afterwards sold the property, and found the surplus to be 
 $243,33. He paid the $75 to C, who, for the benefit of A., the drawer, 
 assigned the balance due on the draft to a third creditor. This third creditor 
 drew an order upon B. for $125, " to be paid out of the avails of the sale," 
 which B. accepted, " to pay when in funds :" — Held, that, upon the payment 
 of the $75, the draft had fulfilled its office ; and that B. was chargeable, as 
 trustee, without the right of deducting for his acceptance of the $125 order. 
 Brunswick Bank v. Sewall, xxxiv. 202. 
 
 20. In a suit against joint defendants, ^ person holduig goods, efiects or cred- 
 its of either of them, may be held as trustee. Smith v. Cahoon, xxxvil. 281. 
 
 21. One, who had received personal property from the defendant, giving 
 therefor his obligation to pay a stipulated price or return the property within 
 a prescribed period, is chargeable as trustee, although, when served with the 
 
TRUSTEE PROCESS. 563 
 
 process, the time for making tlie election had not expired, and the election 
 had not been made. There is the same liability of the trustee, though the 
 property was but an undivided part of an indivisible article. Smith v. 
 Gahoon, xxxvii. 281. 
 
 22. An indebtment to the principal defendant as surviving partner will 
 subject the debtor as trustee, though the suit is against the defendant in his 
 individual character ; unless it appears either that the fund is needed for the 
 partnership debts, or that the partnership creditors have taken measures to 
 secure its appropriation. Smith v. Cahoon, xxxyii. 281. 
 
 23. A trustee is entitled to deduct from the property in his hands, or the 
 proceeds thereof, all sums which he had paid for the principal, and to hold 
 the balance as security for all his outstanding liabilities on the principal's ac- 
 count, and for all his demands against him of which he could avail himself 
 had he not been summoned. He is to be charged only for the balance after 
 an adjustment of their mutual demands. Stedman v. VicJcery, xiii. 132. 
 
 See Assignment, 33. 
 
 (b) For indebtedness or other liability. 
 
 24. If a supposed trustee holds goods, effects or credits of the principal 
 defendant, under a conveyance from him which is fraudulent as to creditors, 
 he will be charged, if the fraud was actual, whether the plaintiff was a 
 prior or subsequent creditor. But if the fraud was merely a legal one, he 
 wQl be discharged unless the plaintiff was a prior creditor. Fletcher v. 
 Clarke, xxix. 485. 
 
 25. Previous to the Act of 1854, c. 85, the wife's earnings were liable to 
 be reached by the trustee process, in a suit by a creditor of her husband. 
 Bradbury v. Andrews, xxxvii. 199. 
 
 26. Whether a Railroad Corporation, who have contracted to issue stock 
 certificates to the principal defendant, is chargeable as trustee, quere. Bigelow 
 V. York & Cumberland E. E. Co., xxxtii. 320. 
 
 27. Although one, summoned as trustee, may declare that he has no goods, 
 &c., of the principal in his hands, yet, if he state facts which are inconsis- 
 tent with the truth of that declaration and which outweigh it, he is lawfully 
 chargeable. Moor v. Towle, xxxviii. 133. 
 
 rv. WHEN DISCHARGED. 
 
 28. Where the principal in a trustee process had purchased land and given 
 back a mortgage to secure his notes for the consideration, and then conveyed 
 one-half of the same, by deed of warranty, to one summoned as the trustee, 
 and received the consideration therefor ; and afterwards, (the notes secured by 
 the mortgage remaining wholly unpaid,) the principal conveyed the other half 
 of the land to the supposed trustee, who contracted with his gi-antor, as the 
 consideration for this conveyance, to pay the notes secured by the mortgage, 
 being then to the full amount of the value of the land, but, at the time of the 
 service of the trustee process, no' part of said notes had been paid : — Held, 
 that the trustee must be discharged. Lyford v. Holway, xxvil. 296. 
 
 29. If an action be brought against two persons as partners, and one of 
 the defendants, and two others, as partners in another concern, be summoned 
 as trustees, the latter must be discharged. Denny v. Metcalf, xxviii. 389. 
 
564 TRUSTEE PEOCESS. 
 
 30. The contingency wMch, by the statute, exonerates one from being 
 charged as trustee, is not a mere uncertainty as to how the balance may stand 
 between the principal and the supposed trustee ; but is such a contingency as 
 may preclude the principal from any right to call the supposed trustee to set- 
 tle or account. Dwinel v. Stone, xxx. 384. Williams v. A. & Ken. B. 
 B. Co., XXXVI. 201. 
 
 31. The holding of a chose in action, belonging to the defendant, will not 
 charge the holder as trustee. Clark v. Viles, xxxii. 32. Wilson v. Wood, 
 xxxiT. 123. 
 
 32. When the party summoned as trustee has pleaded that he has no 
 goods, &c., unless, &c., his refusal to answer an interrogatory, (the Court 
 having neither ordered, nor having been called upon to order, that he should 
 answer it,) will not charge him as trustee, unless the question have a tenden- 
 cy to elicit some fact relative to the issue. Lyman v. Parker, xxxiii. 31. 
 
 33. One holding an indorsed promissory note, under an obligation to the 
 principal defendant to account for it, when collected, is not chargeable. Wil- 
 son y. Wood, xxxiv. 123. 
 
 34. Unless a mortgagee of chattels had actual possession of the property, 
 when served with trustee process, he must be discharged. Pierce v. Henries, 
 XXXV. 57. Wood V. Ustes, xxxv. 145. Mace v. Eeald, xxxvi. 136. Beg- 
 gio V. Day, xxxvil. 314. Stedman v. Vickery, xlii. 132. 
 
 35. Neither wUl he be charged, if, prior to service upon him, he had made 
 a sale and transfer of the debt and mortgage. Wood v. Ustes, xxxv. 145. 
 
 36. Nor if, having had possession, the mortgagee, prior to service upon 
 him, surrendered the property to the mortgager. Wood v. Estes, xxxv. 
 145. 
 
 37. Though a person may have received the goods of a co-partnership in 
 payment of an individual debt, he will not be held as trustee, in a suit 
 against the firm, unless it appears that the debt was not jointly due from the 
 co-partnership. Wood v. Estes, xxxv. 145. 
 
 38. One member of a co-partnership cannot truly declare that Jie had no 
 goods, &c., of the defendant, if the co-partnership had any; but one having 
 so declared, and no interrogatories having been put to him, he must be dis- 
 charged. Macomber v. Wright, xxxv. 156. 
 
 39. When one, residing out of the county, is summoned as trustee, and he 
 appears by attorney, and files a declaration that he had not any goods, &c., 
 the declaration, though not sworn to, is to be considered as true, and he will 
 be discharged, unless the plaintiff chooses to proceed further in the examina- 
 tion. Macomber v. Wright, xxxv. 156. 
 
 40. In certain cases, a trustee may be discharged, if his disclosure show 
 his liability to be doubtful. In cases of prima facie liability, dependent 
 upon the facts put in issue, the burden of fuU proof is upon the trustee. 
 Butman v. Hobhs, xxxv. 227. 
 
 41. Whether one summoned as trustee is to be charged must depend upon 
 the state of facts existing at the time of service of the trustee process. Mace 
 V. Heald, xxxvi. 136. Williams v. A. & K. B. B. Co., xxxvi. 201. 
 
 42. A party summoned as trustee, while it is contingent whether he will 
 be indebted to the principal defendant, wUl be discharged. Willia/ms v. A. 
 & K. B. B. Co., XXXVI. 201. 
 
 43., A corporation had contracted to pay, on a specified day of each month, 
 seventy-five per cent, of the work done by the employee in the preceding 
 
TRUSTEE PROCESS. 565 
 
 month, upon a stipulation that the balan.ce should be retained as a forfeiture, 
 if the employee should fail to fulfil his part of the contract: — Held, that 
 whUe the employee's part of the contract remains unfulfilled, the contingent 
 twenty-five per cent, is not attachable by trustee process. Williams v. A. & 
 K. B. R. Co., XXXVI. 201. 
 
 44. Where, by such contract, the value of the whole month's work is to be 
 estimated and certified after the end of the month, before any payment is to be 
 made, no indebtment for any part of it arises before the month has expired ; 
 and, therefore, no part of such value can be secured by trustee process until 
 the expiration of the month. Williams v. A. & K. B. B. Co., xxxvi. 
 201. 
 
 45. Property belonging to a resident of N. Brunswick, and there situated, 
 upon his obtaining a certificate of bankruptcy under the laws there, is thereby 
 transferred to his assignee. And, after such transfer, one who had been 
 indebted to the bankrupt cannot be charged as trustee in a suit against him. 
 Smith V. Eaton, xxxvi. 298. 
 
 46. The holding a mortgage of personal property to secure the mortgagee 
 against a claim for which he is not liable, as well as upon one upon which he 
 is liable, for the mortgager, will not constitute the mortgagee the trustee of 
 the mortgager. Beggio v. Day, xxxvii. 314. 
 
 47. Where an award has been accepted, and afterwards the party against 
 whom the award was made was summoned as the trustee of the other party 
 to the award; — Held, that he must be discharged. Holt v. Kirby, xxxix. 
 164. 
 
 48. An administrator, whose intestate gave a negotiable note to defendant, 
 is not chargeable as trustee, though the note may have been presented by the 
 promisee for allowance against the estate. Gommercidl Bank v. Neally, 
 XXXIX. 402. 
 
 49. If, when service of the writ is made upon an administrator as trustee 
 of the defendant, the latter was surety on sundry notes of the intestate, but 
 had paid nothing, there is no indebtment of the estate, and the trustee must 
 be discharged. Commercial Bank v. Neally, xxxix. 402. 
 
 50. Not even an attachment of defendant's property, on suits against him 
 as such surety, would constitute a debt either absolute or contingent against 
 the estate. Commercial Bank v. Neally, xxxix. 402. 
 
 51. A trustee disclosed that, having become liable for the principal to a 
 large amount, he took, as security, a mortgage of his house and an absolute 
 conveyance of his store, giving back a memorandum to reconvey upon being 
 indemnified: — Held, he was not trustee. Stedman v. Vickery, xiii. 132. 
 
 52. A sale between a supposed trustee and the principal, being -without 
 fraudulent intent and valid between the parties, the fact that some of the 
 parties may have incurred penal liabilities for infractions of the revenue laws 
 cannot have the efiect to charge the trustee. And even, if the conveyance 
 were fraudulent, the trustee might hold the property to secure his bona fide 
 liabilities. Stedman v. Vickery, XLii. 132. 
 
 53. A supposed trustee is not chargeable for real estate in his possession, 
 the property of the principal debtor. Plummer v. Bundlett, XLii. 365. 
 
 54. A., summoned as trustee of B., disclosed, that, prior to the service 
 upon him, he had sent B., (his son-in-law,) a check for $500, and had after- 
 wards taken a note therefor ; but that he intended it as a gift to his daughter, 
 and had never designed to call for the payment of the note: — Held, that. 
 
566 TRUSTEE PROCESS. 
 
 having been intended as a gift, and, having been so regarded by the parties at 
 the time, they could not afterwards ehange the nature of the transaction so as 
 to affect the rights of third parties. Plummer v. Bundlett, XLil. 365. 
 
 55. A.'s wife tendered to B. a sum of money, to redeem real estate which 
 the latter held by mortgage, as security for certain notes given by A., the wife 
 claiming that the money was the fruits of her earnings. It not having been 
 accepted, it was deposited by her in the hands of C, subject to the order of 
 the mortgagee, or herself, in which condition it remained at the time C. was 
 summoned as trustee of A. : — Held, that C. must be discharged. Mayhew v. 
 Paine, xlii. 296. 
 
 See Assignment, 8. 
 
 V. EFFECT, AS BETWEEN THE PRINCIPAL AND TRUSTEE. 
 
 56. A judgment against a trustee will not operate as a bar against an ac- 
 tion by the principal defendant, unless a demand for the goods, &c., had been 
 made, within thirty days, from the judgment, by an officer holding the execu- 
 tion. Nor unless the trustee had delivered or accounted for the goods, &c., 
 upon the judgment. Bachelder v. Merriman, xxxit. 69. 
 
 VI. PRACTICE. 
 
 57. It seems, that, where a debtor holds a joint contract against two or 
 more, and his creditor would attach it by trustee process, he must summon 
 all the parties liable by law to discharge it, who reside in this State. Hutch- 
 inson V. Eddy, XXIX. 91. 
 
 58. A trustee, who does not disclose at the first term, is not entitled to 
 costs arising at any subsequent stage of the case. Warren v. Gihhs, xxix. 
 464. 
 
 59. The adjudication of the Judge of the District Court, as to the facts in 
 a trustee process, is conclusive. Fletcher v. Clarice, xxix. 485. 
 
 60. But the adjudication of such Judge, upon the answers of one summon- 
 ed as trustee, respecting the deposit with him by the principal defendant, of 
 a negotiable note, and of his liability to account for the same, is not of that 
 class, in which his adjudication is conclusive. Wilson v. Wood, xxxit. 
 123. 
 
 61. In this process, upon exceptions to the rulings as to the supposed trus- 
 tee's chargeability, this Court must examine the disclosure, in order to de- 
 cide the preliminary statute question, whether " justice requires a revision." 
 Head v. Merrill, xxxiv. 586. 
 
 62. The Act of 1849, c. 117, does not authorize the introduction of new 
 testimony, in this Court, in trustee processes brought here by exceptions from 
 the District Court. It was designed merely to test the correctness of the Dis- 
 trict Judge, in his adjudications as to matters of fact, upon the evidence be- 
 fore him. Wood v. Estes, xxxv. 145. 
 
 63. When one, who resides out of the county, is summoned as trustee, he 
 is entitled to the benefit of R. S. of 1841, c. 119, § 27, although he is a 
 member of a co-partnership whose place of business is within the county, 
 and although all its members were summoned as trustees. Macomber v. 
 Wright, xxxv. 156. 
 
TRUSTEE PKOCESS. 5 6 7 
 
 64. In this process, an issue of fact for the jury may be formed tinder 
 some circumstances, between the plaintiff and the trustee. And, in the 
 pleadings, forming such an issue, the granting of amendments is at the judi- 
 cial discretion of the Court. Butman v. Hobhs, xxxt. 227. 
 
 65. If an insurer, after a loss of the property by fire, be summoned as 
 trustee of the insured, and he plead that the property was burnt by design, 
 or gross carelessness, the evidence to establish the burning by design must 
 satisfy the jury beyond reasonable doubt ; and to establish the burning by 
 gross negligence, there would be stronger reason, requiring full proof. But- 
 man V. Hobbs, XXXV. 227. 
 
 66. Upon money in the hands of one adjudged trustee, interest is taxable 
 against him from the time of demand upon him. Williams v. A. & K. B. 
 R. Co., XXXVI. 201. 
 
 67. In some cases, a defendant in one suit may be sued in another suit as 
 trustee of the person who was plaintiff in the former suit. McAllister v. 
 Furlong, xxxvi. 307. 
 
 68. Such suit, against the defendant as trustee, operates as an attachment 
 of the fund in his hands ; and, after such attachment has expired, the trustee 
 suit cannot delay or impair the right of the plaintiff in the original suit in 
 obtaining judgment and execution against the defendant. And such an at- 
 tachment expires, unless, within thirty days from the judgment, a demand on 
 the execution be made upon the trustee. McAllister v. Furlong, xxxti. 307. 
 
 69. There is no statute or rule of practice which prescribes what interroga- 
 tories shall be propounded to one summoned as trustee, or what shall be an- 
 swered. The trustee, in refusing to answer, acts at his peril. Per Sheplet, 
 C. J. Smith V. Cahoon, xxxvii. 281. 
 
 70. In scire facias against a trustee, the plaintiff cannot recover judgment 
 for more than appears to be due on the execution issued on the original judg- 
 ment. And where such execution appears to be satisfied in part, by a levy 
 upon the property of the debtor, evidence is inadmissible to show that such 
 property did not in fact, belong to the debtor, and that the value of it had 
 been refunded to the real owner. Sawyer v. Lawrence, xl. 256. 
 
 71. The Court, in its discretion,' may allow a supposed trustee to withdraw 
 a bill of exceptions, filed at a previous term, to the ruling of the Court ad- 
 judging him trustee, and give him leave to disclose further. Stedman v. 
 
 Vickery, XLII. 132. 
 
 72. The question, whether the conveyances disclosed are void for any 
 cause, cannot be determined upon exceptions to the judgment of the Court 
 upon the disclosure. Stedman v. Vickery, xiii. 132. 
 
 _ 73. Under R. S. of 1841, c. 119, § 33, the allegations must be clear and 
 distinct, setting forth the " other facts" to be proved. An allegation that a 
 certain sale by the principal to the trustee was fraudulent or without consid- 
 eration, when the trustee has disclosed the circumstances and the considera- 
 tion, and when no " facts" to be proved by the plaintiff are disclosed, is 
 insuificient. Stedman v. Vickery, xlii. 132. 
 
 74. If the plaintiff would avail himself of goods mortgaged to the supposed 
 trustee, he must apply to the Court for an " order and decree," in accordance 
 with R. S. of 1841, c. 119, § 58. These provisions are not applicable, how- 
 ever, to such goods as have been sold by trustee. Stedman v. Vickery, xiii. 
 
 75. The disclosure of a trustee is to be taken as true by the Court ; and 
 
568 TRUSTS. 
 
 the affirmative statements therein are to receive full credit, unless other facts 
 and circumstances disclosed are inconsistent therewith. Stedman v. Vickery, 
 XLii. 132. Plummer v. Rundlett, xux. 365. 
 
 See Abatement, 1. 
 Pleading, 26. 
 
 VII. GENERALLY. 
 
 76. Persons summoned as trustees of the principal defendant are parties 
 to the suit ; and adverse to the plaintiff. Denison v. Benner, xxxvi. 227. . 
 
 TRUSTS. 
 
 1. Where a conveyance of land is made hy absolute deed, with a written 
 contract back, promising to sell the land at a certain time, and pay two notes 
 with the proceeds, and return the surplus to the grantor, the grantee holds the 
 land in trust ; and it is his duty to sell at the time specified, and appropriate 
 the proceeds as agreed. Fratt v. Thornton, xxviii. 355. 
 
 2. And if a third person be a surety on one of the notes, although he knew 
 not of the trust when it was undertaken, yet, when he was informed of it and 
 could enforce its execution, the original parties cannot annul it. Pratt v, 
 Thornton, xxyiii. 355. 
 
 3. If there should, be a mortgage upon the estate, the trustee may pay it 
 off, and the amount paid will be a charge upon the estate. Pratt v. Thorn- 
 ton, xxTiii. 355. 
 
 4. The trustee cannot become the purchaser of the trust estate in equity ; 
 and the cestui que trust may avoid any purchase of the trust estate, made hy 
 the trustee. Pratt v. Thornton, xxviii. 355. 
 
 5. If, pending a suit, in which land has been attached, the plaintiff assign 
 the demand for value, the equitable estate, after the levy, is in the assignee, 
 as a resulting trust. And, if the assignment be stated in the appraiser's cer- 
 tificate, it is notice of the trust to any attaching creditor. Warren v. Ireland, 
 XXIX. 62. 
 
 6. Whether such creditor, without notice, actual or implied, could hold the 
 land discharged of the trust, by levying it as the property of the assignor, 
 quere. But, with such notice, he could hold only subject to the trust, and 
 could not maintain a writ of entry against the grantees of the cestui que trust. 
 Warren v. Ireland, xxix. 62. 
 
 7. If one purchases an estate with his own money, and the deed be taken 
 in the name of another, a trust results by presumption of law, in favor of him 
 paying the money. Baker v. Vining, xxx. 121. Buck v. Swazey, xxxT. 
 41. Dwinel v. Veazie, xxxvi. 509. 
 
 8. Such payment may be proved by parol ; but the Court will require the 
 proof to be fuU, clear and convincing. Baker v. Vining, xxx. 121. Rich- 
 ardson V. Woodbury, XLiii. 206. 
 
 9. Where money has been paid by two or more, and the proportion of each 
 is uncertain, no trust can be established. Baker v. Vining, xxx. 121. 
 
TRUSTS. 569 
 
 10. The presumption of a resulting trust may be rebutted by parol testi- 
 mony. Baker v. Vining, xxx. 121. 
 
 11. A devise of the care and management of land and of the disposition 
 of its income, during the life of the devisee, for the benefit of another, confers 
 upon the devisee a life-estate, in trust. Butterfield v. EasJdns, xxxiii. 392. 
 
 12. In equity, contracts for the sale of land are treated as executed. The 
 purchaser is regarded as ov^ning the land, and the vendor, the purchase money, 
 and as seized of the land in trust for, the purchaser. And such a trust at- 
 taches to the land, and binds every one claiming through the vendor with 
 notice. Linscott v. Buck, xxxiii. 530. 
 
 13. In the creation of a trust, no exact form of words is requisite. Buch 
 V. Swazey, xxxt. 41. Bragg v. Paulh, xiii. 502. 
 
 14. Lands conveyed to one, but purchased with funds belonging jointly to 
 himself and another, are held by the grantee in trust for the other, to the 
 extent of his part of such funds. Buck v. Swazey, xxxv. 41. 
 
 15. In order to create a trust by the purchase of lands with the funds of 
 another, they must have been advanced and invested at the time of the pur- 
 chase. Buck V. Swazey, xxxt. 41. 
 
 16. Where one, as cestui que trust, having the right to compel a convey- 
 ance of land to him by his trustee, becomes himself, by contract, the trustee 
 of another in the same land, he is compellable to convey to his lestui que 
 trust, so soon as he shall obtain a conveyance. Buck v. Swazey, xxxv. 41.. 
 
 17. A testator gave to his wife certain property for her own use ; also his 
 homestead farm, for her natural life, " as a home for herself and their chil- 
 dren ;" also, the income of all his estates, to be paid to her, as she should 
 require, for her support and the support and education of their minor children, 
 with a further direction, that if there should be a surplus of income for any 
 year, after supplying the wants of his wife, it should be invested by his 
 trustee as a fund, from which to make up the deficiency of income of any 
 subsequent year, and the residue of the fund to be distributed among the 
 children after coming of age : — Held, that it is for the wife to adjudge how 
 much of the income is requisite for the support of herself and children ; and 
 that the trustee is bound to pay to her the whole income if she request it ; 
 and held, also, that she is to hold such income in trust, and that the guardian 
 of the children, by application to the equitable jurisdiction of the Court, may 
 prevent any waste or misapplication by her. Cole v. Littlefield, xxxv. 439. 
 
 18. It ia not material in what manner payment was made to the grantor 
 for an estate conveyed in tfust, if it was sufficient to induce him to convey. 
 Bwinel v. Veazie, xxxti. 509. 
 
 19. A trust, though secret, is not conclusive evidence of fraud, as to the 
 creditors of either grantor or grantee. It is open to explanation. Brown v. 
 Lunt, xxxTii. 423. 
 
 20. Although a party cannot be compelled to execute a parol trust, he may 
 do it voluntarily, and his creditors cannot object. And when a deed, executed 
 in part fulfillment of a parol trust, and in part for a valuable consideration, 
 good upon its face, is attempted to be impeached, parol evidence is admissible 
 to show the real consideration on which it was executed. Brown v. Inmt, 
 XXXVII. 423. 
 
 21. "Whatever righrf: the king had, by royal prerogative, in the shores of the 
 sea or navigable rivers, he held as a jus publicum, in trust for the benefit of 
 the people, for the purposes of navigation and of fishery. Moulton v. Lihhey, 
 XXXVII. 472. 
 
 72 
 
570 TRUSTS. 
 
 22. Where the funds of a voluntary association are put under the control 
 and management of trustees, and loaned to some of its members, an action 
 may be maintained in the name of the trustees, though aU the parties of 
 record are members of the same association. Pierce v. Bobie, xxxix. 205. 
 
 23. And where the trustees, who had taken a note as such, for such a loan, 
 had been superseded by others, the latter may prosecute a suit on such 
 note, at the request of the association, in the name of the former ; and the 
 plaintiffs of record cannot release or control it. But they may require in- 
 demnity against costs. Pierce v. Rdbie, xxxix. 205. 
 
 24. When the grantee takes a conveyance of the land which an obligor 
 has bound himself by bond to convey to another, -with notice, he will be re- 
 garded as holdiog the same in trust for such obligee. Bragg v. Paulk, xlii. 
 502. 
 
 25. A declaration in writing, under seal, that A. has purchased a tract of 
 land, subject to mortgage, for the joint and equal benefit of himself and B. ; 
 that he has advanced the purchase money and taken a conveyance to himself 
 of the same, as security for his advances and interest therein ; that he will 
 apply all the profits of the same to the payment of his advances and of the 
 mortgage of the land ; and that, upon payment of the same, he wUl convey to 
 B. half of the land thus purchased, and equally divide the profits, if any, 
 with him, is a declaration of trust. Bragg v. Paulk, xlii. 502. 
 
 26. Tiese facts, appearing in the conditions of a bond between the parties, 
 constitute a declaration of trust, in which the obligor is trustee and the 
 obligee the cestui que trust. Bragg v. Paulk, xiii. 502. 
 
 27. By R. S. of 1841, c. 91, § 33, such a declaration of trust is to be 
 recorded in the registry of deeds of the district where the land is ; and the 
 record is " equal to actual notice thereof to aU persons claiming under a 
 conveyance, attachment or execution, made or levied after such recording." 
 Bragg v. Paulk, xxii. 502. 
 
 28. When the grantor in a deed, absolute in its terms, makes the convey- 
 ance to secure a debt due fi*om him to the grantee, a resulting trust arises by 
 implication of law. And if, when the debt becomes due, or within a reason- 
 able time thereafter, the amount is paid or tendered in payment, the grantee 
 tnay be compelled to reconvey. Richardson v. Woodbury, xiiii. 206. 
 
 29. Or if, before the debt becomes due, the grantee sells the estate for 
 more than the sum due him, the excess may be recovered in assumpsit. 
 Richardson v. Woodbury, xxiii. 206. 
 
 30. But when the time specified for the payment of the whole debt secured 
 by the conveyance has expired, or a reasonable time, where no specific time 
 is named, the estate becomes absolute in the grantee discharged of the trust. 
 Richardson v. Woodbury, xxiii. 206. 
 
 See Bailment, 10. 
 Bank, 2. 
 EdtriTT, 107 — 119. 
 
 USAGE. 
 See Bills, 77. Evidence, 227 — 231. Insueance, 81. Pbactice, 63. 
 
USURY. 571 
 
 USE AND OCCUPATION. 
 See Landioed and Tenant, 35 — 39. 
 
 USER. 
 See Easement. Peesceiption. Wat. 
 
 USURY. 
 
 I. WHAT IS USURY, AND ITS EFFECTS UPON CONTRACTS. 
 n. REMEDY. 
 m. EVIDENCE. 
 
 I. WHAT IS USURY, AND ITS EFFECTS UPON CONTRACTS. 
 
 1 . If the maker of an usurious note procure a third person, having no con- 
 nection with it, to give his note for the amount, in payment of the usurious 
 note, such third person cannot avoid his note, on account of the usury between 
 the former parties. Stanley v. Kempton, xxx. 118. 
 
 2. But aliter, if it had been given in renewal or substitution of the original. 
 Stanley v. Kempton, xxx. 118. 
 
 3. A note given for interest above the rate of six per cent, per annum, for 
 the forbearance of payment of a sum of money, is without legal consideration. 
 Goodrich v. Buzzell, XL. 500. 
 
 H. REMEDY. 
 
 4. Debt is a proper form of action to recover back money paid as usurious 
 interest. Houghton v. Stowell, xxviii. 215. 
 
 5. Under R. S. of 1841, c. 69, the person paying usurious interest may 
 recover it back. Houghton v. Stowell, xxviii. 215. 
 
 6. To a promissory note, the defence of usury, by the oath of the defend- 
 ant, can only be made in a suit brought in the name of the payee. The 
 plaintifl', who is the indorsee of the note declared on, cannot be called by the 
 defendant to testify, though he was the subscribing witness. Cushman v. 
 Dovming, xxix. 459. 
 
 7. Where a judgment has been recovered upon a note, for its fuU amount, 
 the debtor, after having paid the execution, is precluded by the judgment 
 from recovering back the illegal interest included in the note. Footman v. 
 Stetson, XXXII. 17. / 
 
 _8. Where, upon a promissory note, the plaintifif has received from the de- 
 fendant interest above the rate of six per cent, per annum, the defendant, in 
 
572 VARIANCE.— VENUE. 
 
 a suit upon the note, or upon the mortgage to secure the note, may have such 
 excess deducted. Larrahee v. Lumlert, xxxii, 97. 
 
 9. The privilege of swearing to usury in a contract is personal to the party 
 who alleges it. Hence, where one of two defendants in a suit upon a note is 
 defaulted, he cannot be a witness to prove usury in the contract. Thornton 
 V. Blaiadell, xxxvii. 190. 
 
 10. Banking corporations are subject to the general statute as to usury, as 
 modified by the Act relating to Banks ; and when, in discounting paper, a 
 greater rate than the legal interest is taken or reserved by the bank, such ex- 
 cess only can be avoided in an action by it upon the paper. And when the 
 paper, on which illegal interest is taken, was made for the accommodation of 
 the borrower, and this was known to the bank, the defence of usury is avail- 
 able to the parties to the paper, as to such excess. Veazie Bank v. Faulk, 
 XL. 109. 
 
 1 1 . Banking corporations are liable to the same penalties as individuals for 
 taking usurious interest. Lumherman's Bank v. Bearce, xti. 505. 
 
 m. EVIDENCE. 
 
 12. The defendant, being the maker of a negotiable note, *iU not be per- 
 mitted to prove usury by his own oath in defence, where the suit is brought 
 by an indorsee. Myrick v. Sasey, xxvii. 9. Gushman v. Downmg, xxix. 
 459. 
 
 13. Under Act of 1846, c. 192, the proof of usurious interest, which 
 afiects the costs in a suit, must be adduced at the trial. Hankerson v. Emery, 
 XXXTII. 16. 
 
 VARIANCE. 
 
 When the defendant omits to plead abatement for the omission of a de- 
 fendant, who ought to have been joined, in an action founded on a joint con- 
 tract, though the obligation be in writing, and the declaration show it to have 
 been made by a party not joined, it is no variance at the trial. Reed v. Wil- 
 son, XXXIX. 585. 
 
 See Pleading, 25, 26, 27, 46, 47. 
 
 VENUE. 
 
 1 . In local actions, if the venue be in the wrong county, and the objection 
 appear on the record, it should be taken advantage of on demurrer. After 
 pleading to the merits, and after verdict, it is too late to raise the objection. 
 Heath v. Whidden, xxix. 108. 
 
 2. In criminal pleading, the venue must appear to be within the jurisdic- 
 tion of the Court. State v. Gonley, xxxix. 78. 
 
VEEDICT. 573" 
 
 VERDICT. 
 
 I. WHEN IT MAY BE AFFIRMED, AND WHAT MAY BE SUSTAINED. 
 II. WHEN IT MAY BE AMENDED. 
 
 ni. WHEN IT MAY BE SET ASIDE FOR ERROR OR MISCONDUCT 
 OF JURY. 
 
 I. WHEN IT MAY BE AFFIRMED, AND WHAT MAY BE SUSTAINED. 
 
 1. In tort, wherein the defendants have severally, pleaded the general issue, 
 a verdict which finds one of them to be "not guilty," and is silent as to the 
 others, may be received and affirmed. Thacher v. Jones, xxxi. 528. • 
 
 2. In a civil suit, on an issue received and discussed by the jury on Satur- 
 day, their verdict may be affirmed and recorded on the next Court day, though 
 it was finally agreed upon and sealed up on the morning of Sunday. True v. 
 Plumley, xxxvi. 466. 
 
 3. On an indictment for an assault with a dangerous weapon, A. B., with 
 intent to kill and murder, a general verdict of " guilty" is sustainable. State 
 V. Waters, xxxix. 70. 
 
 4. A verdict in favor of one of two defendants, and silent as to the other, 
 may be received and affirmed, in assumpsit as well as in tort. Shapleigh v. 
 AbhoU, XLi. 173. 
 
 5. When there are several counts, and the jury find the defendant guilty on 
 one count, and are silent as to the rest, the legal efiect of the verdict is an 
 acquittal as to the other counts. State v. Phinney, xiii. 384. 
 
 n. WHEN IT MAY BE AMENDED. 
 
 6. When a verdict has been returned, affirmed and constructively, recorded, 
 the jury's power and duties in relation to it, have been fully performed and 
 exhausted. And any re-consideration by the jury, of such a verdict, though 
 by order of the Court, is inoperative ; and any alteration in it, made upon 
 such re-consideration, is void. Snell v. Bangor S. N. Co., xxX. 337. 
 
 7. Where, in a verdict, the jury accidentally omitted to insert the amount 
 of damages which they had agreed upon: — Held, that the Court might au- 
 thorize the jury to insert the amount, though, after having sealed it up, they 
 had separated for the night by leave of the Court. Doe v. Scribner, xxxvi. 
 168. 
 
 8. A verdict will not be set aside because the jury, by consent of parties, 
 having sealed up their verdict and separated for the night, were allowed, after 
 the same was read by the clerk on the following morning, to amend it so as 
 to conform to the real finding ; although, by so doing, the verdict became one 
 against instead of in favor of the plaintiff. Beal v. Gunningham, xlii. 362. 
 
 III. WHEN IT MAY BE SET ASIDE. 
 
 9. Where the defendant pleads the general issue with a brief statement, 
 and both are signed by his counsel, and the plaintiff's counsel makes and 
 signs a counter brief statement, but accidentally omits to join the general 
 
574 VOLUNTARY PAYMENT. 
 
 issue, the verdict will not be set aside for this reason. Stevens v. Bachel- 
 der, XXVIII. 218. 
 
 10. Jurors are not allowed to testify as to their mode of computation, for 
 the purpose of setting aside the verdict, when misconduct is not alleged. 
 Hovey v. Luce, xxxi. 346. 
 
 11. A verdict will not be set aside, because one of the jurors, without be- 
 ing in the charge of an officer, was permitted by the Court, when not in 
 session, to absent himself temporarily from the panel, before the verdict was 
 agreed upon, unless some prejudice appears to have been suffered by the 
 moving party. Parsons \. Suff, s.:sxYiii. 137. 
 
 12. Nor because of the temporary absence of a juror from the jury room, 
 without permission of the dourt, when there is no proof of misconduct on 
 his part with reference to the cause on trial. Milo v. Gardiner, XLi. 549. 
 
 See AccEssoRT, 4. 
 New Teiax. 
 
 VESSELS. 
 See Shipj-ing. 
 
 VOLUNTARY ASSOCIATION. 
 See Partneeship, 9. Tkusis, 22, 23. 
 
 VOLUNTARY PAYMENT. 
 
 1. When money claimed as rightfully due is paid voluntarily and with a 
 full knowledge of the facts, or with the means of knowledge, it cannot be 
 recovered back, if the party to whom it has been paid may conscientiously 
 retain it. Smith v. Beadfield, xxvii. 145. Gooding v. Morgan, xxxvii. 
 419. Fellows V. Fayette, xxxix. 559. 
 
 2. The payment of a tax, which may conscientiously be retained, with a 
 full knowledge of all the facts, after one has been arrested for its non-payment 
 and discharged on his promise to pay it, is voluntary, and cannot be recovered 
 back, notvidthstanding informalities in its assessment.' Fellows v. Fayette, 
 XXXIX. 559. 
 
 WAGES. 
 See Regulations, &c. Shipping, 28 — 34. 
 
WAIVEK, 575 
 
 "WAIVER. 
 
 1. Wten a party has voluntarily surrendered a right which he could have 
 asserted, he shall not avail himself of it afterwards, to the prejudice of his 
 adversary. Knowlton v. Homer, xxx. 552. 
 
 2. Where defendant told the plaintiff to " call on me on Thursday, and if I 
 find there is no claim on the vessel, I will pay you then ;" and the plaintiff 
 did not call, and there was no evidence that the defendant had found that 
 there was no claim on the vessel: — Held, this could not be considered a 
 waiver on the part of the defendant. Carle v. Bearce, xxxiii. 337. 
 
 3. The defendant's taking depositions in vacation to prove the defence, 
 pending a motion by him to dismiss the action, is not an abandonment of the 
 motion, or a waiver of the ground upon which it had been presented. Briggs 
 V. Davis, xxxiT. 158. 
 
 4. By pleading the general issue to the declaration, the defendant waives 
 all benefit of a demurrer previously filed. True v. Plumley, xxxvi. 466. 
 
 5. So, where he appears and pleads to the merits of a suit, he thereby 
 waives any objections to the want of service of the writ. Woodman v. Smith, 
 XXXVII. 21. 
 
 6. So, also, he waives any technical objections that may exist to the main- 
 tenance of the action, by an agreement in writing with the plaintiff in interest, 
 as to the final disposition of the suit against him in court. Gushing v. 
 Bdbcock, xxxviii. 452. 
 
 7. A motion to quash a petition for review, for want of an indorser, must be 
 made within the first two days of the term next after notice to the respondent, 
 or such an objection will be considered as waived. Smith v. Davis, xxxviii. 
 459. 
 
 8. A release under seal by the judgment debtor, of land set off on execu- 
 tion to the judgment creditor, is a waiver of any defects in the levy, and 
 confirms the title in the land to the creditor. Freese v. Mclntire, XL. 148. 
 
 9. A waiver in writing of strict performance of a specialty must clearly 
 appear. It must be the act of the party having something to waive, and not 
 of the party pleading it. Haynes v. Fuller,- xj,. 162. 
 
 10. The performance of a contract under seal cannot be waived by a parol 
 executory agreement. Haynes \. Fuller, 11.!,. 162. 
 
 11. But, where the performance of the condition of a bond is limited to ten 
 days, by the instrument, and an agreement made on good consideration to 
 waivp the performance as to time is proved, but no time fixed for the per- 
 formance ; in determining what is a reasonable time, regard must be had to 
 the original contract ; and forty days delay would be too late. Haynes v. 
 Fuller, XL. 162. 
 
 12. When a plea jn abatement is overruled by the presiding Judge, the 
 general issue pleaded, and the cause subsequently reported for the considera- 
 tion of the whole Court upon the evidence, without any stipulation as to the 
 preliminary plea, it is considered as waived. Plantation No. 9 v. Bean, xl. 
 218. 
 
 13. A waiver, subsisting entirely in contract, cannot be available if the 
 contract is invalid. Fisher v. Shaw, xlii. 32. 
 
 14. Property, agreed to be paid for on delivery, having been delivered 
 
576 WAKRANT AND SEARCH WARRANT. 
 
 ■without requiring payment, the right to payment at the time of delivery must 
 be taken to he waived, and the time of payment left to be arranged by the 
 parties. Bice\. McLarren, xlii. 157. 
 
 15. The objection that the docket entry is received, instead of a copy of 
 the judgment, must be specifically made when ofiered, or it will be regarded 
 as waived. Fitzgibhon v. Brown, xliii. 169. 
 
 See Abatement, 22 — 26. Contkact, 53, 57. 
 
 Action, 11. Deposition, 16, 34 — 42. 
 
 Akbitkation, 3, Pleading, 27. 
 Bills, &c., 76, 81. 
 
 WAED. 
 
 See GtTAEDiAN AND Waed. 
 
 WARRANT AND SEARCH WARRANT. 
 
 1. A warrant, issued by one as a justice of the peace, purporting to he 
 founded on a complaint sworn to before him, furnishes of itself a legal pre- 
 sumption of his authority. State v. McNally, xxxiT. 210. 
 
 2. A magistrate's warrant of commitment must show his jurisdiction to 
 issue it. Gurney v. Tufts, xx'xvil. 130. 
 
 3. Under the Acts of 1851 and 1853, unless a magistrate's search warrant 
 to search a dwellinghouse, for liquors alleged to be kept for illegal sale, shows 
 that, before issuing such warrant, the testimony of three witnesses, &c., was 
 taken in writing and verified by oath, declaring that they had reasonable 
 ground, &c., it is void. State v. Staples, xxxTll. 228. State v. Garter, 
 xxxrx. 262. 
 
 3. And it must show that the witnesses swore that they had reasonable 
 ground to believe that such liquors were kept in such dwellinghouse for illegal 
 sale, or it wiU be void. State v. Spencer, xxxviii. 30. 
 
 4. When no cause for issuing the warrant is expressed therein, there is no 
 question as to the want of jurisdiction, whether it is in personam or in-rem. 
 Thurston v. Adams, xli. 419. 
 
 See CoLLECTOK, 10. 
 
 OVESSEEBS, &C. 5. 
 
 WARRANTY. 
 
 See Sale, 42 — 51. 
 
■WASTE. — WATER POWER. 577 
 
 WASTE. 
 
 1. By R. S. of 1841, c. 129, one, having the next immediate estate of in- 
 heritance, may maintain an action of waste, against a tenant for life, who 
 suffers or commits any waste on the premises. Hunt v. Hall, xxxvir. 363. 
 
 2. No such action can be maintained by one having only a contingent re- 
 mainder. Hunt V. Hall, xxxvii. 363. 
 
 3. A testator devised land to his wife during her life, and, at her decease, 
 to be divided among his children, and the heirs of such as may be deceased : 
 Held, that the remainder, after the termination of the wife's life estate, was 
 contingent until her death. Hunt v. Hall, xxxvii. 363. 
 
 4. In a writ of entry, the question whether a life estate in the premises has 
 been forfeited on account of waste cannot be considered. Quimhy v. Dill, 
 XL. 528. 
 
 See Landlord and Tenant, 33. 
 
 WATER POWER. 
 
 1. In an action by A., owner of a saw-mLll, to recover damages of B. 
 alleged owner or occupant of another mill, situated on the opposite side of 
 the same river,- and supplied with water from the same source, for divert- 
 ing water from the mill of A., the ownership or actual occupancy of B., 
 must be proved, or the suit cannot be maintained. Sidelinger v. Hagar, 
 XLi. 415. 
 
 2. When hydraulic works are erected on both banks of a private stream, 
 if there is not sufficient water to afford a full supply for all, each riparian 
 proprietor is entitled to an undivided half, or other proportion, of the whole 
 bulk of the stream. Jordan v. Mayo, xli. 552. 
 
 3. The owner of an entire water power on the falls of a river not navi- 
 gable, with the dam and the different erections dependent thereon, having 
 conveyed certain portions of the premises, to wit, the carding and clothing 
 building, and the land upon which they stood, " with the privilege of draw- 
 ing water from the flume connected with said building, sufficient for all the 
 purposes of clothing and carding; and when there shall not be sufficient 
 water for all the mills erected, or to be erected on said flume and privilege, 
 the said clothing and carding privilege is in all cases to have the prefer- 
 ence ; " — Held that, neither the owner, nor any person claiming under him 
 by subsequent grant, by virtue of ownership of the shorq opposite the prem- 
 ises first granted, could draw off the water so that there should not be suffi- 
 cient to meet the purposes of the grant ; and also held, that the words in the 
 grant, " erected on said flume and privilege," did not restrain those of the 
 preceding clause, so as to enable the grantor, or his assigns, to draw as 
 much water for the mills on the other side of the stream, and not through 
 the same flume, as they might choose. Jordan v. Mayo, xli. 552. 
 
 _ 4. The grant by the owner of the whole stream of water, sufficient for a 
 given purpose, precludes the grantor and his assigns from diminishing or de- 
 feating in any way what he has thus conveyed. Jordan v. Mayo, xli. 552. 
 
 73 
 
578 WAY. 
 
 WAY. 
 
 I. GENERALLY, AND HEREIN OF RIVERS AND STREAMS. 
 
 II. COUNTY ROADS OR HIGHWAYS. 
 
 ni. TOWN OR PRIVATE WAYS, 
 
 rv. DAMAGES FOR LAYING OUT AND ALTERING. 
 
 V. DISCONTINUANCE. 
 
 VI. MAKING. 
 
 VIL DEFECTS AND OBSTRUCTIONS. 
 
 Vni. LAW OF ROAD. 
 
 IX. WAYS OTHER THAN BY STATUTE, AND RIGHT OF WAY. 
 
 X. WAYS IN UNINCORPORATED PLACES. 
 
 XI. SURVEYORS OF HIGHWAYS. 
 
 I. GENERALLY, AND HEREIN OF RIVERS AND STREAMS. 
 
 1. The fee in lands, reserved for public range ways, remains in the original 
 proprietors, until they part with it. Small v. Fennell, xxxi. 267. 
 
 2. In trespass for opening a road over the plaintiff's land, proof of the 
 reservation of such range way over the locus in quo furnishes no defence. 
 Small V. Fennell, xxxi. 267. 
 
 3. Over such range ways, an easement may be acquired by ways, legally 
 laid out, or by long user. Such range ways, as to the right of the public to 
 the use of them,'are to be viewed as any other lands. Small v. Fennell, 
 XXXI. 267. 
 
 4. In a public highway, located, but not finally established, individuals can 
 have no vested rights, however advantageous to them such a way might be. 
 Williams v. Lincoln Co. Gomm'rs, xxxv. 345. 
 
 5. The use of the shore of the Penobscot river, as a way for travel, is the 
 exercise of a right which the owner of the shore cannot abridge or restrict. 
 When the river is covered with ice, his rights and those of the public remain 
 unchanged. Citizens may still traverse the river at pleasure. State v. Wilson, 
 XIII. 9. 
 
 6. The public, as foot passengers, have the right to use the carriage way 
 as well as the sidewalks. Walking in the carriage way is not of itself prima 
 facie evidence of want of ordinary care ; nor from that fact alone will the law 
 infer negligence. Goorribs v. Purrington, xlii. 332. 
 
 n. COUNTY ROADS OR HIGHWAYS. 
 
 (a) AOTHOBITT XO LAY OUT. 
 
 (b) Pbeliminakt proceedings. 
 
 (c) Pkoceedings in laying out. 
 
 (d) Appeal. 
 
 (a) Authority to lay out. 
 See County Commissionees, 63, 66. 
 
WAY. 579 
 
 (b) Preliminary proceedings. 
 
 7. A petition for the location of a county road is sufficiently definite, if it 
 sets forth its termini, and the general course between them. And where 
 alternative places are described, it furnishes no valid objection. Sumner v. 
 Oxford Co. Comm'rs, xxxvii. 112. 
 
 See Ceetioraki, 7. 
 
 County Commissioneks, 10, 19, 41, 42, 48, 49. 
 
 (c) Proceedings in laying out. 
 
 8. The Commissioners are not required to follow minutely the line indicated 
 in the petition ; but a substantial compliance with it, under the exercise of a 
 sound discretion, is sufficient. Wayne v. Kennebec Co. CommWs, xxxtii. 
 558. 
 
 See Cestiokabi, 24, 25. 
 
 County Commissionees, 11, 13, 16, 28, 34, 57. 
 
 (d) Appeal and proceedings. 
 
 9. The Act of 1847, c. 28, § 3, requires the report of committees to be 
 made at the term of the District Court next after their appointment. And, 
 unless made then, a subsequent acceptance of their report will be void. 
 Windham, petr's., xxxil. 452. 
 
 See CoTTNTY Commissioners, 23, 24, 26, 55, 56, 72. 
 
 m. TOWN OR PKIVATE "WAYS. 
 
 (a) PaOCEEDIKQS AND KETUHN OP SEIECTMEN. 
 
 (b) AOOEPTANOE. 
 
 (c) Appeal and pkoceedings. 
 
 (a) Proceedings and return of selectmen. 
 
 10. Proof that a part of the proceedings, for the establishment of a town 
 road, were legally conducted, will authorize a jury, after the lapse of thirty 
 years, to infer that all the other requisites of the law were complied with. 
 State V. Bigelow, xxxit. 243. Bigelow v. Hillman, xxxvil. 52. Gihhs v. 
 Larrabee, xxxvii. 506. Broclc v. Chase, xxxix. 300. 
 
 11. That a land owner had due notice of the selectmen's meeting to locate 
 a town way, may be inferred from a notification seasonably inserted in a news- 
 paper published in his neighborhood. State v. Beeman, xxxT. 242. 
 
 12. If the return of the selectmen omit to state that their notices were 
 posted " in the vicinity of the proposed route," the Court cannot determine 
 the road to have been legally established. Southard v. Bicker, xliii. 575. 
 
 (b) Acceptance. 
 
 13. A way, by dedication of the owner of the land, does not become a 
 
580 WAY. 
 
 public highway, without user for twenty years, or an acceptance on the part 
 of the town. State v. 'Bradbury, XL. 154. 
 
 14. Eepairs made upon it, by a surveyor of highways, do not constitute 
 such acceptance. He has no authority to bind the town. State v. Bradbury, 
 XL. 154. 
 
 (c) Appeal and proceedings. 
 
 15. A town cannot be adjudged to have delayed or refused to approve 
 and allow a supposed way, where there had been no proper return or report 
 of the laying of such way by the selectmen. Lewiston v. Lincoln County 
 Commissioners, xxx. 19. 
 
 16. County Commissioners cannot act on a petition, representing that a 
 town has unreasonably refused or delayed to allow and approve a town way 
 legally laid out, and praying that the commissioners accept and approve it, 
 unless the petition or the record of the Court shows that the application was 
 seasonably made to them. Bethel v. Oxford Co. Commissioners, xlii. 478. 
 
 See County Commissionees, 20, 21, 64, 65, 68, 69, 70. 
 
 IV. DAMAGES POR LAYING OUT AND ALTERING. 
 
 17. Whether the applicant for damages, occasioned by the location of a 
 town way, is or is not the owner of the land, is one of the questions to be 
 determined by the jury or committee on the hearing of the parties on such 
 application. Minot v. Cumberland Co. Commissioners, xxviii. 121. 
 
 18. Where an existing street or road is dug down to the injury of the owner 
 of land adjoining, it is not an alteration within the meaning of the statute, 
 which wiU entitle him to damage. Hovey v. Mayo, XLlll. 322. 
 
 See Cektioeabi, 2. 
 
 CoTJNTT Commissionees, 2, 9, 33. 
 
 V. DISCONTINUANCE. 
 
 19. The mere use by the public of a town way, for many years, will not 
 divest the town of its jurisdiction over it. Bigelow v. Hillman, xxxyii. 52. 
 Larry v. Lunt, xxxTll. 69. 
 
 20. An unrestricted vote to discontinue a town way takes eflFect from its 
 passage ; though the meeting, at which it passed, may be adjourned to a sub- 
 sequent day. Bigelow v. Hillman, xxxvii. 52. 
 
 21. Whether such vote can be reconsidered, after the rights of third parties 
 have intervened, quere. Bigelow v. Hillman, xxxtii. 52. 
 
 22. A town way, which had its origin and continuance by virtue of a legal 
 location, may be discontinued, although used for more than twenty years. 
 Larry v. Lunt, xxxtii. 69. 
 
 23. It is not necessary, in order to prevent the discontinuance of a highway 
 by operation of R. S. of 1841, c. 25, § 42, that it should be in such a state 
 of repair as not to be subject to indictment. State v. Cornville, xliii. 427. 
 
WAY. 581 
 
 VI. MAKING. 
 
 24. The contractors with a town to make and open a county road, which it 
 is obligatory upon the town to build, are not restricted in reference to suitable 
 means in which to effect their object, provided opportunity is given to the 
 owner of land over which it passes, to take from the land such things as he 
 has a legal right to. Wight v. Phillips, xxxvi. 551. 
 
 25. A road cannot be said to be " opened," when nothing has been done to 
 a large portion of it, and the remainder was a road open and used as such 
 before. State v. Gornville, XMii. 427. 
 
 26. A highway located, and no work done on a large portion thereof, and 
 having been put to no use as a way, for more than six years after it should 
 have been m^de passable, cannot be treated as opened. State v. Gornville, 
 XLiii. 427. 
 
 See CorNTT Commissionebs, 52. 
 
 VII. DEFECTS AND OBSTRUCTIONS. 
 
 (a) Damaoes to peksons and property injuked. 
 
 (b) Indictment. 
 
 (c) Obstbuctionb by individuals. 
 
 (a) Damages to persons and property injured. 
 
 27. The plaintiff, traveling with a hired horse, which was entirely ruined 
 through a defect in the highway, paid its value to the owner. In his damages 
 recovered of the town, it was held, that the value of the horse was rightfully 
 included. Littlefield v. Biddeford, xxix. 310. 
 
 28. In a suit against a town for damage through a defect in the road, the 
 plaintiff, to account for the violence of his horse, may show that near the 
 defect where the injury occurred was another defect in the road, which he 
 had just passed without injury. Verrill v. Minot, xxxi. 299. 
 
 29. If a traveler's horse, without fault of the town, should be running 
 violently upon the road, it cannot be ruled, as a matter of law, that the town 
 is not responsible for an injury sustained by the traveler, through a defect in 
 the road, though it might not have occurred but for such running. Verrill v. 
 Minot, XXXI. 299. 
 
 30. In such action, bodily pain is a part of the injury for which damage 
 may be recovered. Verrill v. Minot, xxxi. 299. Mason v. Ellsworth, xxxii. 
 271. 
 
 31. To maintain such a suit against a town, it must be proved that the high- 
 way was not safe and convenient ; that the plaintiff exercised ordinary care ; 
 and that the injury was occasioned by the defect alone. Moore v. AVbott, 
 xxxii. 46. Farrar v. Greene, xxxii. 674. Coombs v. Topsham, xxxviii. 
 204. 
 
 32. When an injury is occasioned by the united effect of a defect in the 
 way and any other cause, the party bound to keep the road in repair is not 
 liable. Moore v. Abbott, xxxii. 46. Farrar v. Oreene, xxxil. 574. 
 Coombs V. Topsham, xxxyiii. 204. Anderson v. Bath, xiii. 346. 
 
 33. In such action, notice to the town, that such defect existed, is sufficient- 
 ly proved, when it appears that the same was known to two of its inhabitants 
 capable to commimicate information of it, if they were not of the principal 
 
582 WAY. 
 
 men of the town, or were not assessed for public taxes. Mason v. Ellsworth, 
 
 XXXII. 271. 
 
 34. And the jury may allow compensation for loss of time resulting from 
 the injury, and for expenses suitably incurred to obtain a cure. Sanford v. 
 Augusta, XXXII. 536. 
 
 35. And where the action is in the name of the husband and wife, to re- 
 cover for "bodily injury" suffered by the wife, the loss of her labor resulting 
 from the injury, as also the expense of a cure, may be included in the dam- 
 age ; that common law rule not being in force, which required that compen- 
 sation for such loss of service and for such expenses could be recovered only 
 in a suit brought by the husband alone. Sanford v. Augusta, xxxii. 536. 
 
 36. The standard of care required of travelers upon the highway is such 
 care as persons of common prudence generally exercise. Farrar v. Greene, 
 xxxii. 574. 
 
 37. By " damage in one's property" through a defect in a highway, ■within 
 the meaning of R. S. of 1841, c. 25, § 89, is intended some injury in rem, 
 by which the value is destroyed or diminished, as distinct from mere loss of 
 time, or addition to one's expenses. Weeks v. Shirley, xxxili. 271. 
 
 38. In suits for injuries sustained by alleged defects in the highways, the 
 jury may consider the nature of the business in the town, " but such busi- 
 ness forms only one of the facts to be considered in connection with the others, 
 and with the obligation of the town to keep the way in a safe and convenient 
 state of repair for the inhabitants of other towns, as well as of its own in- 
 habitants. Church V. Cherryfield, xxxiii. 460. 
 
 39. The jury are not to infer a defect in a highway at a particular time 
 and place, simply because an injury was sustained at that time and place ; 
 but they are to consider that in connection with the other facts in the case. 
 Church V. Cherryfield, xxxiii. 460. 
 
 40. The terms " safe and convenient," as used in the statute in relation 
 to roads, do not mean entirely safe and entirely convenient, but are to be con- 
 sidered by the jury in a particular sense, according to their knowledge and 
 experience in the ordinary transactions of men. Church v. Cherryfield, 
 
 XXXIII. 460. 
 
 41. In communicating the rule, the words are employed in their usually 
 accepted meaning. Church v. Cherryfield, xxxiii. 460. 
 
 42. In a suit for an injury, sustained by the upsetting of a carriage through 
 a defect in the highway, evidence that, on former occasions, the driver had 
 " appeared to be a competent driver," seems to be inadmissible. Lawrence 
 v. Mt. Vernon, xxxT. 100. 
 
 43. In such actions, towns are not liable, unless the person in charge of the 
 property injured was in the exercise of ordinary care at the time of the in- 
 jury ; and what is " ordinary care" must be determined by the circumstances 
 of the case presented to the jury. Garmon v. Bangor, xxxtiii. 443. 
 
 44. The Judge instructed the jury, upon the question of due care, &c., 
 in driving, that the knowledge of the plaintiff, of the defect in the way, was 
 not the knowledge of the son, who was driving the team: — Meld, such to be 
 good law. Garmon v. Bangor, xxxviii. 443. 
 
 45. Where two persons were passing in the same direction with a horse 
 and sleigh, while the driver of the plaintiff's team was trying to pass them, 
 as he was about to meet other teams, traveling on the same side of the way, 
 in an opposite direction, at the time of the injury ; it is not correct, as a mat- 
 
WAY. 583 
 
 ter of law, to instruct the jury that " he had a right to pass one side or the 
 other ; and that the jury should consider, whether, if the road was clear, 
 there was any want of ordinary care and diligence, in driving on one side of 
 the road rather than the other, or in the manner of his driving ; if so, the 
 plaintiff was not entitled to recover." Wells, J., dissenting. Garmon v. 
 Bangor, xxxtiii. 443. 
 
 46. Towns, having reasonable notice of a defect in one of their highways, 
 are liable for an injury arising therefrom, after it is constructed and opened 
 for travelers, although the time in which they were allowed to build it had 
 not elapsed. Blaisdell v. Portland, xxxix. 113. 
 
 47. Under R. S. of 1841, c. 25, § 89, subjecting the party obliged to re- 
 pair certain ways, &c., to fine for injuries resulting from defects therein, the 
 amount of forfeiture, within the limits of the statute, may be fixed by the 
 Court, in thfe exercise of its discretion. State v. Bangor, xli. 533. 
 
 48. And the Judge, at Nisi Prius, having imposed such forfeiture, his de- 
 cision is final. State v. Bangor, xli. 533. 
 
 49. In an action against a town for injury to a horse, in consequence of a 
 defective highway, it being shown that it occurred on the Lord's day, before 
 sun down, the onus is upon the plaintiff to show that the traveling was a work 
 of charity or necessity. SinoJdey v. Penohscot, xlii. 89. 
 
 50. When children use a part of the public road for their sports, the town 
 or city through which the way passes, is not responsible for injuries received 
 by any of the children so engaged, though the injuries may result from a de- 
 fect in the road. Goodenow, J., dissenting. Stinson v. Gardiner, XLli. 
 248. 
 
 51. Safety and convenience for travelers and their horses and teams is the 
 rule by which to judge whether there be any defect or want of repair, or 
 sufficient railing upon the highways. Stinson v. Gardiner, xlii. 248. 
 
 52. The liability of a town for damages arising from a defective highway 
 depends upon proof of the same facts that would render it liable to indict- 
 ment ; and, in all cases where it may be held for damages, it may be indicted. 
 Davis V. Bangor, xlii. 522. 
 
 53. A defect or want of repair is either inert matter incumbering the 
 highway, upon or over it, or structural defects endangering public travel. 
 Davis V. Bangor, xlii. 522. 
 
 54. Hence, a team temporarily stationary in a street or road, under the 
 charge of the owner or driver, is not a defect or want of repair to be amended, 
 nor an obstruction to be removed, and the town or city is not liable for injuries 
 occasioned thereby. Tennet, J., dissenting. Davis v. Bangor, xlii. 522. 
 
 See Notice, &c., 5. 
 Tow^ns, 1 — 25. 
 
 (b) Indictment. 
 
 55. An indictment against a town cannot be maintained upon an allega- 
 tion that there is a highway extending into several towns, and that the same 
 or that part of it which lies within the defendant town is defective. State 
 V. Milo, xxxii. 55. 
 
 56. An indictment for obstructing a " public street" is sustained upon 
 proof of obstruction to a " town way." State v. Beeman, xxxv. 242. 
 
 57. An indictment for a nuisance, by erecting and maintaining a building 
 
584 "w-AY. 
 
 ■upon a " common highway ," is not sustained by proof of such erection, &c., 
 upon a "town way." State v. Bradbury, xi. 154. 
 
 See Inbicxment, 1. 
 Wat, 52. 
 
 (c) Obstructions hy individuals. 
 
 58. A remedy by action lies in favor of a town for damage sustained by 
 flowing back the water upon the banks of its public highway by a dam, 
 though erected for mill purposes only. Monmouth v. Gardiner, xxxv. 247. 
 
 59. And that, too, though the owner of the dam may have obtained the 
 permission of the proprietor to flow the land ; and though the town at a 
 reasonable expense, might have prevented the damage ; and though other 
 causes, jointly with the dam, contributed to occasion the damage ; and though 
 the dam was not the principal part of the damage. Monmouth v. Gardiner, 
 xxxv. 247. 
 
 60. An accident having occurred by contact with a telegraphic wire across 
 a highway, the plaintiff' must not only prove that the injury was occasioned 
 by the fault of the defendant, but that there was no neglect or want of 
 ordinary care contributing, on his part, to the injury. Dickey v. Maine 
 Telegraph Co., xliii. 492. 
 
 VIII. LAW OF THE ROAD. 
 
 61. A traveler, with his horse and carriage, where the highway is unob- 
 structed, without notice of a carriage behind him, may use any part of it 
 Avrought for the public accommodation. Foster v. Goddard, XL. 64. 
 
 62. And such traveler will be entitled to recover damage for an injury done 
 to him, by the collision of another's carriage with his own, on the highway, if 
 he shows that he was in the exercise of ordinary care at the time ; or if not, 
 and the want thereof in no wise contributed to produce the injury ; and if it 
 was occasioned by the want of ordinary care in the other party. Foster v, 
 Goddard, xi. 64. 
 
 IX. WAYS OTHER THAN BY STATUTE, AND RIGHT OF WAY. 
 
 63. A dedication of land, by the proprietor, for a highway, can be shown 
 only by clear indications that he intended to surrender it, not for the benefit 
 of certain persons only, but for the public ; and the public must have adopted 
 it as such, which may be inferred from a common use of the land as a high- 
 way. Bangor House v. Brown, xxxiil. 309. Cole v. Sprowt, xxxv. 161. 
 State V. Bradbury, XL. 1 54. 
 
 64. Where, by one of the persons having a right of passage, an action is 
 brought against another of them for obstructing it, no defence is established 
 by proof that the plaintifi' has obstructed it at its termination adjoining his 
 own land. Bicker v. Barry, xxxiT. 116. 
 
 65. Proof that a space had been fenced out more than twenty years, and 
 that a strip, occupying a part of that space, had been wrought by the town 
 for more than twenty years, and traveled by the public as a road, will not 
 
WAY. 585 
 
 show, as matter of law, that the whole space had become, by user, a public 
 highway. 'Lawrence v. Mt. Vernon, xxxt. 100. 
 
 66. No particular ceremony is required to make a dedication, nor is any 
 time prescribed by law as essential to secure the enjoyment. They may be 
 presumed from facts and circumstances proved. Cole v. Sprawl, xxxT. 161. 
 State V. Wilson, xlii. 9. 
 
 67. If one grant a right of passage in an existing road over his own land, 
 and the limits of the road are not defined in the grant, its locality, as estab- 
 lished and traveled prior to the grant, may be established by parol. Cole v. 
 Sprawl, XXXV. 161. 
 
 68. The existence of a pile of lumber upon a particular spot, at the time 
 of such grant, does not necessarily determine that the road had not previously 
 been established over that spot. Gale v. Sprawl, xxxv. 161. 
 
 69. If, by a grant of land, hounded on a road, there is conveyed a right of 
 passage upon such road, it is not law, to be laid down by the Court, that the 
 grantee can use the way for no other purposes than it had been used for by 
 the grantor. Cole v. Sprawl, xxxv. 161. 
 
 70. For obstructing the plaintiff's right of way, or for unlawfully exclud- 
 ing the light from his doors and windows, the damages are to be assessed to 
 the date of the writ only. Cole v. Sprawl, xxxv. 161. 
 
 71. A right of way cannot be established by user, when such use arose by 
 reason of a legal location. Larry v. Lunt, xxxvii. 69. State v. Wilson, 
 
 XLII. 9. 
 
 72. Public ways may have a legal existence by dedication to the general 
 public, and limited only by the wants of the community. But to constitute 
 a dedication, the act of dedication and the acceptance of it by the public, are 
 essential. State v. Wilson, xlii. 9. 
 
 73.. Highways may have a legal existence from immemorial usage. Long 
 occupation and enjoyment, unexplained, will raise a presumption of a grant, 
 even of the land itself, and of acts of legislation and of matters of record. 
 State V. Wilson, xiil. 9. 
 
 X. WAYS EST UNINCORPORATED PLACES. 
 
 74. The statute of 1821, c. 118, authorized the establishment of highways 
 in unincorporated townships, at the expense of the owners. Longfellow v. 
 Quimby, xxxiii. 457. 
 
 75. By the Act of 1841, c. 196, § 1, before a road is located across lands 
 not situated within an organized plantation or incorporated town, notice must 
 be given of the pendency of the petition, and of the time and place appointed 
 to consider the same and adjudicate thereon.. Ware v. Penobscot Co. Com- 
 missioners, xxxviii. 492. 
 
 76. It is essential, in laying out a way across a township, that the com- 
 missioners determine at whose expense the way is to be made. Ware v. 
 Penobscot Co. Commissioners, xxxviii. 492. 
 
 See County Commissioneks, 59, 60. 
 74 
 
586 WAY. 
 
 XI. SURVEYORS or HIGHWAYS. 
 
 77. A surveyor of highways has no authority to subject to a public ease- 
 ment any land not lying within the limits of the road. Plummer v. Sturte- 
 vant, XXXII. 325. 
 
 78. However important it may be to the public to have the water turned 
 off from the highway, the surveyor has no authority to make a ditch for that 
 purpose through adjoining lands. And, for such an act, trespass may be 
 maintained by the owner of the land. Plummer v. Sturtevant, xxxii. 325. 
 
 79. For labor done upon the highway, under the surveyor's express promise 
 to pay for it, an action may be maintained against him, although the jury 
 were not satisfied that the defendant intended to render himself personally 
 liable. Field v. Towle, xxxiv. 405. 
 
 80. The list of delinquent persons, with the amounts of the deficiency of 
 each, which it is the duty of highway surveyors to render to assessors, 
 cannot be legally rendered, unless the surveyor has given the notice and 
 made the demand required by statute. Patterson v. Greighton, xxii. 367. 
 
 81. A return of such list, without such previous compliance with the stat- 
 utes, would render the surveyor liable to the aggrieved party Patterson v. 
 Greighton, XLll. 367. 
 
 82. The records, in the offices of the clerks and assessors, should show 
 that the surveyors' duties have been properly discharged. Patterson v. 
 Greighton, xlii. 367. 
 
 82. A surveyor will not be allowed to perfect his list, if his own evidence 
 shows that his preliminary proceedings would not justify it. Patterson v. 
 Greighton, xlii. 367. 
 
 83. If a surveyor of highways dig down a street or road with discretion, 
 and liot wantonly, he is not liable, either at common law or by statute, when 
 acting under legal authority. Hovey v. Mayo, xliii. 322. 
 
 84. Where a new power is given by statute, and the means of executing it 
 prescribed therein, the power must be executed accordingly. And this prin- 
 ciple is applicable to the Act of 1846, c. 216. Hovey v. Mayo, xliii. 322. 
 
 85. A corporation, having power to raise money for the repair of highways, 
 may make compensation therefor, in the material taken from the same in the 
 process of making the improvement. But, whether they can do so to the 
 injury of the owner of adjoining land, where the record, conferring the power, 
 shows the sole purpose to be for the benefit of the individual making the re- 
 moval, may well be doubted. Hovey v. Mayo, xliii. 322. 
 
 86. A corporation, having the power to determine what repairs should be 
 made in its roads and streets, may exercise, through its officers, acting within 
 the scope of their authority, its own judgment, which cannot be set aside by 
 a jury in a suit at law. Hovey v. Mayo, xliii. 322. 
 
 87. A street commissioner, or one acting under him, cannot be made liable 
 for the purposes of the city council, while acting under an order passed within 
 the scope of their authority, or for his own purposes in the proper execution 
 of the order. Hovey v. Mayo, xliii. 322. 
 
WIDOW.— WILL. 587 
 
 WHARF. 
 See Deed, 140. 
 
 WIDOW, AND WIDOW'S ALLOWANCE. 
 
 1. Where a widow waives the provision made for her by her husband's will, 
 and claims dower, she is entitled to the same allowance out of the personal 
 estate as if he had died intestate. Brown v. Hodgdon, xxxi. 65. 
 
 2. And that too, whether the estate be solvent or insolvent ; and although 
 all the personal estate was specifically bequeathed. Brown v. Hodgdon, 
 XXXI. 65. 
 
 8. If an insane \vidow waives a provision made for her in her husband's 
 will, and, at no lucid interval, evinces a disposition to avoid the waiver, and 
 if the waiver is confirmed by the guardian, it cannot be objected that the 
 waiver was inoperative. Brown v. Hodgdon, xxxi. 65. 
 
 4. A contract by a widow with the heirs and legatees, that, (although she 
 had previously waived the provision made for her in her husband's wUl,) she 
 would accept that provision, and make no other claim upon the estate, can 
 have no efiect upon the action of the Probate Court. Gowen, appel't, xxxil. 
 516. 
 
 5. An allowance to a widow can only be discharged from the proceeds of 
 the personal estate. And, if the allowance exceeds the value of such estate, 
 it cannot be sustained for such excess. Paine v. Baulk, xxxix. 15. 
 
 WILL. 
 / 
 
 I. PROBATE. 
 II. CONSTRUCTION, 
 
 I. PROBATE. 
 
 1. If a will has been duly approved and allowed by a Probate Court, 
 having jurisdiction, its validity cannot be called in question by a Court of 
 common law, except by appeal. Batten v. TaUman, xxvil. 17. 
 
 2. The mere fact that the Judge of Probate had attested the will as one of 
 the subscribing witnesses thereto, does n(rt deprive him of jurisdiction. Pat- 
 ten V. Tollman, xxvir. 17. 
 
 3. The competency of an attesting witness to a will is to be determined 
 upon the state of facts existing at the time of attestation. Patten v. Tall- 
 man, XXVII. 17. 
 
 4. If it be impossible, upon legal principles, to present the testimony of 
 one of the thrpe attesting witnesses to a will, it may be approved without his 
 testimony. Patten v. Tallman, xxTil. 17. 
 
588 WILL. 
 
 5. If one of the attesting witnesses to a will be otherwise competent, he 
 is not rendered incompetent, because, at the time of its attestation and ap- 
 proval and allowance, he was Judge of Probate for that county. Fatten v. 
 Tollman, xxtii. 17. 
 
 6. Although a testator omit to make, in his will, any provision for one of 
 his children, and it does not appear that it was intentional, the will may be 
 approved without any condition or restriction. And the remedy of the child 
 is by subsequent proceedings in the Probate Court or otherwise. Doane v. 
 Lake, XXXII. 268. 
 
 7. On the question whether a will shall be established, there is no legal 
 presumption of the testator's sanity ; that is a fact to be proved. Cilley v. 
 alley, xxxiT. 162. 
 
 8. The subscribing witnesses to a will, though not experts, may give 
 opinions as to the sanity of the testator, when the facts are stated upon 
 which their opinions are founded ; but the facts are more important than the 
 opinions. Cilley v. Cilley, xxxiv. 162. 
 
 9. It is not essential that any of the subscribing witnesses should testify 
 to any opinion respecting the sanity of the testator. Cilley v. Cilley, xxxit. 
 162. 
 
 10. To the publication of a will no prescribed form of words is requisite. 
 No other publication is necessary than that the testator, when executing the 
 instrument, was apprised of its contents, and knew and intended it to be his 
 will. Cilley v. Cilley, xxxiv. 162. 
 
 11. A will, to be effectual, must be executed in conformity with the re- 
 quirements of the statute. Interlineations, made by the testator without a 
 new attestation, would be to disregard the statute requirement. Such inter- 
 lineations are therefore disregarded, and the will approved according to the 
 original draft. Doane v. Radlock, xlii. 72. 
 
 12. So, with interlineations made by a stranger. Interlineations, made by 
 the legatee himself, will, at most, only avoid the legacy so altered. The other 
 bequests will not be destroyed thereby. Doane v. Hadloclc, xlii. 72. 
 
 II. CONSTRUCTION. 
 
 13. The testator provided in his will, that if his two sons, J. and H., or 
 either of them, after his decease, should become surety for any person or per- 
 sons, "they shall, in such case, forfeit all bequests, (fee, given them in this 
 will;" and afterwards, by a codicil to the same will, he devised " to my son 
 H. in trust for my son J., during the natural life of the said J., the G. farm :" 
 Held, that the estate so devised in trust was not forfeited, if J. and H. had 
 become sureties for others. Patten v. Tollman, xxvii. 17. 
 
 14. The testator provided by wUl, that " all my property, real and personal, 
 in the town of M., and the income of the same, be given to my wife E., to be 
 used and disposed of by her for her "convenience and comfort during her life ; 
 and what may remain after the decease of my wife E. be distributed equally 
 to my children who survive, and the legal representatives of such as have 
 deceased:" — Held, that E. had the power to sell and dispose of such per- 
 sonal estate. Scott v. Perkins, xxviii. 22. 
 
 1 5. A testator is presumed to use words in their ordinary meaning, if such 
 a construction would not be in conflict with his manifest meaning. Osgood 
 V, Lovering, xxxiii. 464. Shaio v. Mussey, xxi. 495. 
 
WILL. 589 
 
 16. The use of the word "children" does not necessarily, and under all 
 circumstances, exclude a grand-child. But a grand-child will not be consid- 
 ered as included, unless such intention is clearly exhibited, or the word ap- 
 pears to have been used as synonymous with issue or descendants. Osgood 
 V. hovering, xxxiii. 464. 
 
 17. A testator, having five children, after making certain legacies, be- 
 queathed the residue of his personal property to four of his children, one 
 fifth part each, and, of the other fifth, one-half to a daughter, and the other 
 half to a son of that daughter, to be paid to him when of age, with interest. 
 Afterwards, by a codicil, he bequeathed, " for the benefit of his family," 
 for the term of ten years, all that residue, which, in the wiU, he had directed 
 to be divided "among his children ;" after which term it was to be divided as 
 by the will : — Held, that the codicil merely postponed the distribution for the 
 term of ten years ; and that the interest upon the grand-son's legacy was not 
 to commence until the expiration of that term. Osgood v. Lovering, xxxiii. 
 464. 
 
 19. In the construction of a wiU, the intention of the testator, as clearly 
 discoverable from the whole will, is to be effectuated, if it can be done con- 
 sistently with the established rules of law. Fisk v. Keene, xxxT. 349. 
 Leering v. Adanfis, xxxvii. 264. Shaw v. Hussey, xil. 495. Doane v. 
 Eadlock, xlii. 72. 
 
 20. In a devise to a person and his heirs, with a devise over in case of his 
 dying without issue, the words " dying without issue" are construed to mean 
 an indefinite failure of issue ; and the word " heirs" to mean heirs of his 
 body. Fish v. Keene, xxxY. 349. 
 
 21. The testator bequeathed his personal property, to his wife, and the will 
 also provided, she should have the " sole management and control of, and re- 
 ceive all the rents, &c., of all his real estate at the time of his decease, ex- 
 cepting what is herein bequeathed, so long as she shall remain his widow, or 
 until their youngest surviving child shall be of lawful age." He also devised 
 some of his real estate to his children ; and added : — " It is to be distinctly 
 understood, that it is not my wish or intention, in any event, to deprive my 
 said wife of the right of dower in any of my said estate, except as above ex- 
 cepted. He also provided in the next clause, that, when his youngest surviv- 
 ing child should become of age, all his " estate then remaining, excepting the 
 dower as aforesaid, and that, at the decease of my said wife, should be equally 
 divided," &c. : — Held, that the testator intended that his widow should not 
 be barred of her claim of dower in his lands not devised ; and that he used 
 the word "bequeath" as synonymous with "devised," and that it must be so 
 interpreted. Dow v. Dow, xxxyi. 211. 
 
 22. The intention of the testator is to be ascertained by comparing all 
 parts of the will together ; and that construction is to be given which wiR 
 best comport with the general objects, and least conflict with particular pro- 
 visions of the wiU. Deering v. Adams, xxxvii. 264. Shaw v. Hussey, 
 XXI. 495. 
 
 23. Although a will may not contain any express words of grant to execu- 
 tors, or any technical words of limitation to them, yet, by implication, a fee 
 will vest in them, if, upon a view of the whole will, such fee be indispensable 
 for effectuating the objects of the testator. Deering v. Adams, xxxtii. 264. 
 
590 WITNESS. 
 
 24. When a ■will creates trusts, which require, for their effectual execution, 
 an estate in fee, such estate wUl be implied. . Deering v. AduTns, xxxvii. 
 264. Richardson v. Woodbury, xliii. 206. 
 
 25. A will prohibited the vesting of real estate in the heirs at law, for 
 twenty years, who were the minor grand-children of the testatrix, and gave 
 to the executors the entire care and management of it during that period ; — 
 required that, from the income, the grand-children should be supported and 
 educated, and the surplus invested by the executors ; — that, during the twen- 
 ty years, the estate should remain undivided, and immediately afterwards 
 should vest in the grand-children ; — prohibited any sale of it by the executors, 
 but authorized them to lease it and exchange a specified part of it for other 
 land, and to execute deeds therefor ; — required that, upon the marriage of the 
 female grand-children, the executors should protect the portion of each one of 
 them from the control of their respective husbands; — and provided that, if 
 within the twenty years the grand-children should all die without issue, the 
 estate should be appropriated for relieving the poor, &c., in such manner as 
 the executors should prescribe :—jBeZd, that, by construction, the executors 
 took a fee simple in trust, defeasible at the end of twenty years, or when the 
 trust created by the will should have been accomplished. Deering v. Adams^ 
 XXXVII. 264. Bichardson v. Woodbury, xliii. 206. 
 
 26. In determining the meaning of a particular devise, reference may be 
 had to the other provisions of the wiU. Pfatt v. Leadbetter, xxxviii. 9. 
 
 27. That a devisee may have an estate of inheritance, it must appear to 
 have been the intention of the testator, by the words used in the devise, or 
 clearly implied from the entire instrument. Pratt v. Leadbetter, xxxviil. 9. 
 
 28. A testator made the following devise: — "I give and bequeath unto 
 my son, O. P., the land he is now in possession of, to him, during his natural 
 life, to improve, and then to his heirs after him, for their sole right:" — Beld, 
 that, as the remainder of the will evidenced no intention to give the devisee 
 an estate of inheritance, he took thereby only an estate for life. Pratt v. 
 Leadbetter, xxxviii. 9. 
 
 29. The provisions of a will, that the personal estate should remain in the 
 hands of executors, only interposed a trustee in whom the legal estate vested, 
 but did not affect the duration or magnitude of the estate. Stone v. North, 
 XLi. 265. 
 
 30. Where an executor is invested by implication with the title to real 
 estate, he does not thereby derive any title to property held by the testator in 
 trust. Bichardson v. Woodbury, xmii. 206. 
 
 See EarriTT, 21. 
 
 WITNESS. 
 
 I. COMPETENCY. 
 II. EXAMINATION. 
 
 For witness' certifying travel, d;c.. See Penalty, 6 — 9. 
 
WITNESS. 591 
 
 I. COMPETENCY. 
 
 (a) Pabties to the note or secphitt. 
 
 (b) Pakties to the suit. 
 
 (o) Interest EauALLT balanced. 
 
 (d) When excluded pob intebest. 
 
 (e) When not excluded fob intebest. 
 
 (f) Bestokation of competency. 
 
 (g) Agents and attoeneys. 
 (h) Genebally. 
 
 (a) Parties to the note or security. 
 
 1. In an action for aiding a debtor in the fraudulent concealment or transfer 
 of his property, under R. S. of 1841, c. 148, § 49, the debtor is a competent 
 witness to prove that a note or account produced, and purporting to be due 
 from him, was in fact due. Aiken v. Kilburne, xxvii. 252. 
 
 2. In a suit by the indorsee of a note against the maker, the payee is a 
 competent witness, as to occurrences subsequent to its inception, to prove 
 sudi facts as would defeat the note. Davis v. Sawtelle, xxx. 389. Smith 
 V. Morgan, xxxviii. 468. Lincoln v. Fitch, xlii. 456. 
 
 3. The Court wiU therefore examine the deposition of such a witness, to 
 ascertain the admissibility of the facts therein stated. Davis v. Sawtelle, 
 xxx. 389. 
 
 4. In a suit by the indorsee against the maker,' upon a note indorsed by 
 the payee " without recourse," the payee is a competent witness to prove any 
 facts which would not impeach its original validity, or impair the credit and 
 character which his indorsement has given to it. Davis v. Sawtelle, xxx. 
 389. Berry v. Sail, xxxiii. 493. Goodwin v. Ghadwich, xxxv. 193. 
 Lincoln v. Fitch, xlii. 456. 
 
 5. In a suit upon a negotiable note which came into the possession of the 
 plaititiff after its maturity, the payee is a competent witness to prove its 
 payment by the maker, while in his hands. Smith v. Morgan, xxxviii. 
 468. 
 
 6. An assignee of an unnegotiable note, who has commenced a suit thereon, 
 but subsequently assigned his interest to a third person, not having indorsed 
 the writ, and no proceedings having been had to require it of him, is a com- 
 petent witness in such suit. Bunker v. Oilmore, xi. 88. 
 
 7. Facts may be so interwoven with each other that a person who is a 
 competent witness as to some of them, and wholly incompetent as to others, 
 cannot testify to those for which he would otherwise be a competent witness. 
 Lincoln v. Fitch, xiii. 456. 
 
 (b) Parties to the suit. 
 
 8. If a plaintiff offer himself as a witness, and be sworn on the voir dire, 
 and then be rejected as a witness, and the defendant then propose to him any 
 inquiries pertaining to the cause, he is not thereby made a general witness to 
 other facts. Bobbins v. Merritt, xxxi. 451. 
 
 9. From the making of any such inquiry, no inference can be rightfully 
 drawn that the defendant consents to the statement, by the plaintiff, of any 
 facts, except the facts thus inquired of. To such inquiries, the plaintiff is' 
 
592 ■WITNESS. 
 
 not bound to answer. And though, he should answer some, he is not com- 
 pellable to answer others. Robhins v. Merritt, xxxi. 451. 
 
 10. Where one of two defendants in a suit upon a note is defaulted, he 
 cannot be a witness to prove usury in the contract. Thornton v. Blaisdell, 
 XXXVII. 190. 
 
 1 1 . The trustees of a ministerial and school fund, in an action in the name 
 of the corporation, are competent witnesses, if they are not personally named 
 as plaintiffs. Andover v. Beed, xxxix. 41. 
 
 12. A negotiable note is assignable. The assignor, having been examined 
 as a witness, by the plaintiff, " deriving title through and from the witness," 
 it is within the letter and spirit of the Act of 1855, c. 181, § 3, to admit the 
 defendant, as the "adverse party," to testify " to the same matter, in his own 
 behalf," which the assignor had covered by his testimony in the direct ex- 
 amination. Fogg V. Bdbcock, xli. 347. 
 
 (c) Interest equally halanced. 
 
 13. In a suit between the vendee of a chattel and an attaching officer, 
 upon the question whether the sale was fraudulent as against the creditors of 
 the vendor, the interest of the vendor is a balanced interest, and he is there- 
 fore a competent witness for either party. Ward v. Chase, xxxt. 515. 
 
 14. In trespass, for injury to personal property, the person who committed 
 the act complained of is competent as a witness for the plaintiff, to prove 
 that the act was done by direction of the defendant. Jones v. Lowell, xxxv. 
 538. 
 
 15. "Where the parties to a suit claim title to the premises from the same 
 grantor, the demandant, by a mortgage, and the tenant, by a later quit-claim 
 deed earliest on the record, the common grantor is a competent witness to 
 prove that the tenant, prior to the delivery of his deed, had notice of the ex- 
 istence of the former title. Faul v. Frost, XL. 293. 
 
 (d) When excluded for interest. 
 
 16. In an action for land, by one claiming under a paramount title, if the 
 tenant vouch his immediate warrantors, who take upon themselves the de- 
 fence, their release of a previous warrantor will not render the latter a compe- 
 tent witness for the defence. Crooker v. Jewell, xxix. 527. 
 
 17. When the immediate effect of a judgment in favor of one of the par- 
 ties, is to confirm a third person in the enjoyment of an interest in possession, 
 such third person is not competent as a witness for that party. Atkinson v. 
 Snow, XXX. 364. 
 
 18. As a general rule, a vendor of personal property is not a competent 
 witness, in support of a suit in which his vendee is attempting to recover for 
 the value of the property against a third person. Thompson v. Towle, xxxii. 
 87. 
 
 19. His interest is not balanced, although such third person, in a suit by 
 himself against the witness, had given credit for the property, without the 
 consent of the witness, and taken his judgment only for the balance of his 
 claim. Thompson v. Towle, xxxii. 87. 
 
 20. A surety, by making a partial payment on the note, had extended its 
 vitality against himself. After the limitation bar upon the note had attached 
 
WITNESS. 593 
 
 as to the principal, but within six years from the time of the partial payment, 
 a s\iit was brought upon the note against the surety for the balance: — Seld, 
 the principal was not a competent witness for the surety, because of his ac- 
 countability over to the surety, notwithstanding the statute of limitations. 
 Odell V. Dana, xxxiii. 182. 
 
 21. A surety on a bond, given by a debtor to procure his release from 
 arrest on mesne process, is not competent as a witness for the defendant on 
 the trial. Gates v. Noble, xxxiii. 258. Stuart v. MoDougald, xxxt. 398. 
 
 22. The mere proof that the master sailed a vessel " on shares'' will not 
 authorize one of the part owners to be a witness for the master, in a suit 
 against him for wages of one of the crew. ~ Lufkin v. Patterson, xxxviii. 
 282. 
 
 23. A receipter for goods attached on writs, in which receipt was the 
 stipulation, " that they are not to be demanded except on the executions 
 which may be recovered in said suits," is not a competent witness for the 
 defendant in the trial of the same actions. Oxnard v. Swanton, xxxix. 
 125. 
 
 (e) When not excluded for interest. 
 
 24. In an action by a creditor, under R. S. of 1841, c. 148, § 49, the 
 debtor is a competent witness for the plaintiff.' Philhrooh v. Handley, xxvii. 
 53. Aiken v. Eilburne, xxvii. 252. 
 
 25. Nor is he incompetent because he appeared to have been the principal 
 actor in the fraudulent transfer of his property ; nor because he had given an 
 entirely different account of the transaction between himself and the defend- 
 ant, under oath, in his petition to be declared a bankrupt. Aiken v. Kil- 
 lurne, xxvii. 252. 
 
 26. In an action by the purchaser against the seller of a note upon which 
 the names of indoisers have been forged, the broker, through whom the sale 
 was negotiated, is a competent witness for the plaintiff, if he was ignorant of 
 the forgery, and if he made no promise or representation concerning the note. 
 Baxter v. Duren, xxix. 434. 
 
 27. In an action by one of the co-tenants of a grist-mill against another 
 for his share of the rents and profits, a third co-tenant is a competent witness 
 for the defendant to prove the legality, of the mill-owners meeting. Buck v. 
 Stafford, XXXI. 34. 
 
 28. In the trial of an action, in which property has been attached on the 
 writ, a surety upon a repleyin bond, by virtue of which the same property 
 was replevied from the attaching officer at the suit of a third person, is a com- 
 petent witness for the defendant. Johnson v. Whidden, xxxii. 230. 
 
 29. That the witness, in such a suit, was the defendant's grantee of land 
 attached on the writ, will not exclude his testimony, unless it appear that the 
 conveyance was subsequent to the attachment. Johnson v. Whidden, xxxii. 
 230. 
 
 30. One summoned as a trustee, and not having yet disclosed or been de- 
 faulted, is a competent witness for the defendant. White v. Means, xxxni. 
 495. 
 
 31. The previous declarations of the plaintiff, that he supposed he should 
 have to sue the defendant for the benefit of a third person, and that, if such 
 third person should sue the defendant, he (plaintiff) should not object to it, 
 
 75 
 
594 WITNESS. 
 
 ■will not preclude the plaintiff from using such third person as a witness in the 
 suit against the defendant, unless it be proved that the suit is for the benefit 
 of the witness, or that the witness will have some legal right in the avails of 
 the suit, should the plaintiff recover, or that he will be injuriously affected if 
 the defendant recover. Gole v. Cole, xxxm. 542. 
 
 32. In a prosecution by the State, an inhabitant of the town to which the 
 law appropriates the penalty, if recovered, is a competent witness. State v. 
 Woodward, xxxit. 293. 
 
 33. In a -(vrit of entry against an alleged disseizor, brought by one who 
 had mortgaged the land, before the commencement of the suit, to secure a 
 note, the mortgagee is a competent witness for the demandant. Woodman v. 
 Skeetup, XXXV. 464. 
 
 34. In a suit by the vendee of a chattel against an officer, by whom it had 
 been attached in an action against the vendor and his co-partner, such co- 
 partner is competent as a witness for the officer ; although, should the officer 
 recover, the avails of the property would probably go to reduce the witnesses' 
 liability upon the partnership debt. Ward v. Chase, xxxv. 515. 
 
 35. A stockholder in a corporation has no such interest as to prevent him 
 from testifying to his official acts in such company. York & G. B. B. Co. v. 
 Fratt, XL. 447. 
 
 (f ) Bestoration of competency. 
 
 36. The interest of a witness is not removed by a receipt, unsealed, in full 
 of all demands made by the party calling him. Dennett v. Lamson, xxx. 223. 
 
 37. In an action by an indorsee of a note against the indorser, the maker, 
 when released by the defendant, is a competent witness for him. Franklin 
 Bank v. Pratt, xxxi. 501. 
 
 38. In an action by the holder of a draft against the acceptor, the drawer, 
 when released by the defendant, is a competent witness for him. Franklin 
 Bank V. Pratt, xxxi. 501. 
 
 39. The cashier of a bank, being released by the directors, is a competent 
 witness for the bank to prove that, through a mistake, he had given too large 
 a credit to a depositor, in the bank book, made for him by the cashier. Lewis 
 V. Eastern Bank, xxxii. 90. 
 
 40. One of several heirs, to whom land and personal estate descended, may 
 be a witness for the administrator, after having conveyed his interest in the 
 land and released to the administrator, as such, his interest in the personal 
 property. Beed v. Gilbert, xxxii. 519. 
 
 41. In a replevin suit, the interest of a surety on the replevin bond is re- 
 moved by a deposit for his use, made with the clerk of the court, by the 
 plaintiff, of an amount equal to the penalty of the bond. And such deposit 
 is subject to the control of the Court, until accepted by the party for whose 
 use it was made. Cooper v. Bakeman, xxxiii. 376. 
 
 42. A release by the officer, delivered to a receiptor, after notice to the 
 latter of an assignment of the receipt to the plaintiff, wiU not qualify the 
 receiptor to be a witness for the defendant in the action in which the receipt 
 was taken. Jewett v. Dochray, xxxiv. 45. 
 
 43. In a suit by the special owner of property against a common carrier, to 
 recover its value, the same having been lost by such carrier, the general owner. 
 
WITNESS. 595 
 
 after having released the plaintiff, is competent to testify for the latter the loss 
 and the value. Mbran y.^ Portland Steam, Fachet Co., xxxt. 65. 
 
 44. A witness' liability to an estate may be released by one alone of several 
 joint administrators. Shaw v. Berry, xxxv. 279. 
 
 45. The interest of a surety on a bail bond may be discharged by a de- 
 posit withthe clerk, for the benefit of the witness, if the judgment should be 
 against the defendant ; and may be made by any person, of his own money ; 
 and when thus made by a third person, the plaintiff, even after judgment in 
 his favor, has no right to the money ; neither can the Court order it to be 
 applied in payment of the judgment. Stuart v. McDougald, xxxv. 398. 
 Jordan V. Young, xxxtii. 276. 
 
 46. Where a note is payable to partners, and by them negotiated, the in- 
 dorsee, after releasing the partners, may use them as witnesses in an action 
 against such makers. Leonard v. Wildes, xxxvi. 265. 
 
 47. A release to a payee under seal, as to all liability on the note, for a 
 consideration less than the amount due thereon, renders him a competent 
 witness for the holder. Manherson v. Emery, xxxvii. 16. 
 
 48. In an action involving the boundaries of the land, the grantor is a com- 
 petent witness for the grantee, after a release from his covenants of warranty ; 
 notwithstanding he has reserved in his deed the right to re-take possession, 
 and have the use of the same during his life, should he need it for his sup- 
 port. Gilbert v. Curtis, xxxvii. 45. 
 
 49. The interest of a receiptor for property attached, may be released by 
 a deposit made with him of money sufficient for his indemnity, with authority 
 to appropriate it for that purpose : even if such deposit be made by the at- 
 torney, of his own money, and without authority from the defendant. Jor- 
 dan V. Young, xxxvii. 276. 
 
 50. A physician, who has contracted with a town to furnish the necessary 
 medical services for their poor, at a stipulated price, with such additional 
 sum as they should recover for his services rendered to paupers chargeable 
 to other towns, in a suit by the town to recover for such services and other 
 supplies, is a competent witness, after his portion embraced in the suit has 
 been paid by the town. Bichmond v. Thomaston, xxxtiii. 232. 
 
 51. "Whether a surety on an executor's bond can be discharged, so as to 
 make him a competent witness for the executor, without notice given by the 
 Probate Court, quere. Franldin Bank v. Cooper, xxxix. 542. 
 
 (g) Agents and attorneys, 
 
 52. "Where an attorney executed a replevin bond in the name of his clients, 
 a prosecution of the replevin suit by them is a ratification, and will discharge 
 the attorney's interest in the suit, which will render him a competent witness 
 for the plaintiffs. Nara. L. Prop'rs v. Wentworth, xxxvi. 339. 
 
 53. In trespass against an officer, for taking a chattel on an execution, the 
 creditor's attorney, who was directed by the creditor to cause the chattel to 
 be seized, if he thought it advisable, thereupon directed the officer to take 
 the chattel, and informed him that the creditor would indemnify him : — Held, 
 that the attorney is a' competent witness for the defendant. Foord v. Sains, 
 xxTii. 207. 
 
596 "WITNESS. 
 
 (h) Generallif. 
 
 54. That the employments of a witness have not been such as to require 
 him to distinguish between true and simula;ted handwritings is not, of itself, 
 a sufficient reason to preclude him from giving an opinion as to the genuine- 
 ness of a disputed signature, though the opinion be founded nlerely upon a 
 comparison of writings. Sweetser v. Lowell, xxxiii. 446. 
 
 55. The Act of 1856, "in relation to witnesses," was not intended to ex- 
 clude the complainant in a bastardy process, " until the defendant shall iirst 
 offer himself as a witness," on the ground of an implied offence against the 
 criminal law. Dyer v. Huff, xliii. 255. 
 
 n. EXAMINATION. 
 
 (a) What a witness is exctised prom testiptinq to. 
 
 (b) Contradiction and impeachment. 
 
 (c) Voir dire. 
 
 (a) What a witness is excused from testifying to. 
 
 56. In a criminal trial, the complainant is not compellable to state, as a 
 witness, the reason which induced him to believe the charge made in the com- 
 plaint. State V. McNally, xxxiv. 210. 
 
 (b) Contradiction and impeachment. 
 
 57. In order to discredit an opposing witness, by proving that he had made 
 declarations in conflict with his testimony, it is not requisite that he should 
 be previously interrogated as to such declarations. Wilhi/as v. Babhershall, 
 XXXII. 184. 
 
 58. Where A. had testified for the State, both ttpoii' gt former and upon the 
 present; trial, and B., for the defendant, had testified to a conflict in the testi- 
 mony of A., as given at the different trials, the State, in ord«r to impeach the 
 testimony of B., cannot use the bill of exceptions, taken in the former trial, 
 unless the same had been signed or written or assented to by B. State v. 
 Bonneyj xxxv. 105. 
 
 59. A party, having called the subscribing witness to prove the execu- 
 tion of an instrument, is not thereby precluded from proving, by other persons, 
 that such witness had elsewhere made statements in conflict with his testi- 
 mony. Shorey v. Hussey, xxxii. 579. 
 
 60. A party, calling a witness who misstates a particular fact, is not pre- 
 cluded from showing by other competent evidence the truth of the fact, in 
 contradiction to the testimony of his own witness* Hall v. Houghton, 
 XXXTII. 411. 
 
 61. Wilfully corrupt and false testimony, on a material point, does not so 
 absolutely discredit the witness as to any other fact testified to by him, that, 
 as matter of law, the jury are bound to disregard his testimony. Parsons v. 
 Huff, XLi. 410. Merrill v. Whitefield, xli. 414. 
 
 62. Evidence to impugn the character of a witness is commonly to be con- 
 fined to his character for truth. Testimony to show the improbability of a 
 
•WRITS AND PROCESSES. 597 
 
 transaction a® stated by a -witness, but having no tendency to show that he 
 had gi-ven a different account of it, is not a mode of impeachment known to 
 the law. Shmv v. Emery, xlii. 59. 
 
 63. Testimony collateral and irrelevant to the issue cannot properly be 
 offered to contradict or impeach a witness. Brackett v. Weeks, xliii. 291. 
 
 64. A party calling a witness cannot impeach his competency or credibili- 
 ty ; but he may show that he was mistaken, and his counsel may argue such 
 mistake to the jury. State v. Knight, xliii. 9. 
 
 (c) Voir dire. 
 
 65. The interest of a witness may be shown from, his own examination, or 
 by evidence aliunde ; but the adoption of either of these modes precludes a 
 resort to the other. LeBarron v. Redman^ xxx. 536. Stuart v. Lake, 
 XXXIII. 87. 
 
 66. After an unsuccessfbl attempt to exclude a witness upon tha voir dire,. 
 his testimony in chief may be stricken out upon a discovery of his interest. 
 LeBarron v. Bedman, xxx. 536. 
 
 67. If a party would exclude an interested witness, his objection must be 
 presented at the earliest opportunity. If not so presented, a presumption 
 arises that the objection is waived. Stuart v. Lake, xxxiii. 87. 
 
 68. It is not competent for an objecting party, in order to exclude a wit- 
 ness, to prove that the witness has made admissions of his interest in the 
 case. Stuart v. Lake, xxxiii. 87. 
 
 WRITS AND PROCESSES. 
 
 I. POEM AND VALIBITY. 
 n. INDORSEMENT, 
 m. SERVICE. 
 
 I. EORM AND VALIDITY. 
 
 1. A writ may kwfuUy be framed as an original summons, with or without 
 an order to attach property ; or, (excepting as to contracts and judgments on 
 contracts,) it may be framed to attach the property, and for want of it to 
 arrest the body ; or to attach the property without any order to arrest the 
 body. Cleaves v. Jordan, xxxiv. 9. 
 
 2. The date of a writ is prima facie evidence of the time it was actually 
 made. Sargent v. Hampden, xxxviii. 581. 
 
 3. When an action is brought against an administrator, upon a claim dis- 
 allowed by the commissioners, after the estate is rendered insolvent, the 
 writ should contain no order to attach the goods of the intestate. An at- 
 tachment made by such writ is illegal. Thayer v. Gomstoch, xxxix. 140. 
 
 4. In trover, the writ should run against the body. White v. Wall, XL. 
 574. 
 
598 WKITS Ain) PROCESSES. 
 
 5. The writs of certiorari, prohibition, mandamus, and quo warranto, and 
 many other processes at common law, have undergone no material change ; 
 and when they aj-e respectively the appropriate remedies for wrongful acts and 
 neglects, all their peculiar characteristics must be retained. Dams, ex parte, 
 sxi. 38. 
 
 See Abatement, 4, 16. 
 
 n. INDORSEMENT. 
 
 6. The writ, in which the plaintiff lives out of the State, is required hy 
 the statute to be indorsed by a sufficient person, an inhabitant of this State, 
 before entry of the action. Stone v. McLanathan, xxxix. 131. 
 
 7. Such requirement is satisfied by the indorsement thereon of the name of 
 the attorney, being a sufficient person, although, over his name, the words 
 "from the office of," were previously printed by the clerk. Stone v. McLan- 
 athan, XXXIX. 131. Richards v. McKenney, xliii. 177. 
 
 8. And extraneous proof is not admissible to show that it was not the in- 
 tention of such attorney to indorse said writ. Bichards v. McKenney, xxiii. 
 177. 
 
 rn. SERVICE. 
 
 9. Though an attachment may have been made upon a writ, if a summons 
 te not served, the defendant is not bound to appear, even though he procured 
 from the officer, (upon tender of his fees,) an attested copy of the writ. Such 
 an attachment, with such copy, thus obtained, is not a legal service. Hodge 
 v. Swazey, xxx. 162. 
 
 10. In serving a writ, which directs the officer to attach the property of 
 the defendant, and to summon hini, there should be a separate summons, 
 even though no attachment be made. In such case, a service by copy or by 
 reading the original is not good. Blanchard v. Day, xxxi. 494. 
 
 11. R. S. of 1841, c. 114, § 48, authorizing a new summons to be issued 
 and served in certain cases, does not extend to a case in which no summons 
 had been delivered to the defendant or left at any place or with any person. 
 Briggs v. Davis, xxxiv. 158. 
 
 12. In a suit brought in a common law court, a service upon a party ad- 
 versely interested is essential. And a judgment rendered without such ser- 
 vice would be a nullity. Davis, ex parte, xxi. 38. 
 
 13. When an arrest has been made on an insufficient oath, the action 
 should be dismissed for want of legal service. Shaw v. Usher, XLi. 102. 
 
 See Abatement, 2, 3, 9. 
 Constable, 2 — 6. 
 
APPENDIX. 
 
 ATTOENEY AND COUNSELOE. 
 
 1. An attorney, in virtue of his general employment to prosecute a suit, has 
 no authority to discharge the execution which he may recover, unless upon 
 the payment of the amount due. Wilson v. Wadleigh, xxxvi. 496. 
 
 2. Nor has he authority to assign the judgment or execution. And a dis- 
 charge of the execution by such an assignee can impair none of the rights of the 
 plaintiff in whose behalf the judgment was recovered. Wilson v. Wadleighy 
 XXXVI. 496. 
 
 BOUNDAEIES OF LAND. 
 
 1. Land, held in co-tenancy and lying between known monuments, was 
 divided into lots upon a plan exhibiting the width of each lot ; and an assign- 
 ment of the lots among the co-tenants was made according to the plan. The 
 plan was erroneous, the distance betweeen the exterior sides being greater 
 than it represented : — Held, that the surplus was to be divided among the 
 several lots, in proportion to their respective widths. Whitten v. Hanson, 
 XXXV. 435. 
 
 2. In determining the true location of a line by a survey and plan, the less 
 certain must yield. Thus, ■where, upon a division line, the bounds of the 
 adjoining townships are all determined by admeasurement, the plan must be 
 controlled by the admeasurement. Wesley v. Sargent, xxxviii. 315. 
 
 3. A direction to a surveyor, by the proprietors of land, to ascertain and 
 determine certain lines of their townships, will not authorize him to establish 
 a new line or change the true orie ; and, if he returns an erroneous location, 
 and they act upon it without a knowledge of the error, they are not bound by 
 it. Wesley v. Sargent, xxxviii. 315. 
 
 4. The act of incorporation of a township into a town, by its number, has 
 reference to the true lines of such township, although an erroneous line is the 
 only one actually indicated upon the earth. Wesley v. Sargent, xxxviii. 315. 
 
 5. The location of the dividing line -between townships, made by the owner 
 of one, cannot affect the rights of the owner of the other, unless he was a 
 party to such location. Talbot v. Gopeland, xxxviii. 333. 
 
 6. Where the same proprietors owned several townships, acts done by them 
 on one, showing its boundary with reference to a psirticular purpose, can have 
 no controlling influence in determining the boundaries of an adjoining town- 
 
600 APPENDIX. 
 
 ship. Nor, if such, owners established the comer bound of one of their 
 townships, can the corner of the adjoining township be necessarily determined 
 by the distance therefrom represented on their plan. Talbot v. Gopeland, 
 xxxTiii. 333. 
 
 7. That a plan may be admissible to show the boundaries of a deed, it 
 must be referred to as a part of its description. Without such reference, it 
 cannot be protracted upon the earth to show the location. Talbot v. C(^e- 
 land, XXXTIII. 333. 
 
 8. The actual running of one of the lines of a township by the owner, and 
 a reference thereto by the grantor, may be conclusive upon the grantee ; but, 
 without reference to a plan, it caimot affect the other boundaries of the 
 township. Talbot v. Gopeland, xxxtiii. 333. 
 
 9. Where the dividing ILae was not originally run, and no monuments set 
 up indicating it, its location is to be determined by measure according to the 
 deed ; and the owner of the township having the older title will first receive 
 his quantity by admeasurement. Talbot v. Gopeland, xxxviii. 333. 
 
 BAILMENT. 
 
 To charge a carrier with the loss of personal ornaments packed in a trunk 
 with the baggage of the owner, it must satisfactorily appear that the trunk 
 was not rifled after it was so packed and before it reached the possession of 
 the carrier. McQuesten v. Sanford, XL. 117. 
 
 CASE. 
 
 An action of the case, charging that the defendant's act was done mali- 
 ciously, may be maintained by proof that it was done negligently. For. 
 keeping a deleterious article so negligently as thereby to occasion damage to 
 another, an action is maintainable, although from such keeping no damage 
 would have accrued, except for the extraordinary, but not very uncommon, 
 action of the elements. Woodward v. Aborn, xxxv. 271. 
 
 COMMON VICTUALLER. 
 
 So much of § 17, of c. 36, R. S. of 1841, as prohibits any one from being 
 a common victualler without a license, is not affected by the Acts of 1846, 
 c. 205, and of 1851, c. 211. State v. Tibbetts, xxxvi. 553. 
 
APPENDIX. 601 
 
 COSTS. 
 
 A party, who, on tlie trial of a writ of review, obtains a reversal, in effect, 
 of the original judgment against him, by means of a certificate in bankruptcy, 
 is not entitled to costs under our statute. Foster v. Hinclcley, xl. 54. 
 
 COVENANT. 
 
 In an action of covenant under a quitclaim deed, in which are no covenants 
 against incumbrances, save those which may originate under the grantor, if 
 the declaration does not allege the incumbrances complained of, at the time of 
 executing the deed, to have originated from, by, or under the grantor, it will 
 be bad on demurrer. Mayo v. Babcock, xl. 142. 
 
 DEPOSITION. 
 
 In order to prove, by a deposition, the contents of a paper in the hands of 
 the adverse party, it is not requisite that notice to produce should be given 
 prior to the taking of the deposition. If the notice to produce be given a 
 reasonable time before trial, the deposition will be admissible. Harris v. 
 Sturtevant, xxxiv. 63. 
 
 EQUITY. 
 
 The statute authority to insert a bill in equity in a writ of attachment 
 does not enlarge the equity jurisdiction of this Court in matters of fraud. A 
 bin against several, alleging that one of them was indebted to the plaintifi', 
 and that such debtor, by a confederacy with the others, had fraudulently 
 transferred property to them for the purpose of hindering the collection of the 
 debt, cannot be sustained, unless the indebtment had previously been estab- 
 lished by a judgment at law. Sheele v. Stanwood, xxxiii. 307. 
 
 FRAUD. 
 
 1. The fraudulent vendor or grantor parts with all his interest in the pro- 
 perty ; and the law aifords him no aid, and equity, no relief in reclaiming it. 
 Andrews v. Marshall, XLlii. 272. 
 
 _ 2. Property, conveyed in fraud of creditors, is not liable to be seized and 
 disposed of by such creditors or by an officer, otherwise than by authority of 
 law. Andrews v. Marshall, xiiii. 272. 
 
 16 
 
602 APPENDIX. 
 
 FRAUDS, STATUTE OF. 
 
 A. agreed to do a piece of work for L., and employed laborers on his own 
 credit. That the work might not stop, L., with A.'s consent, promised the 
 laborers that, if they would continue to labor, he would pay their wages for 
 the past as well as for the future, provided the funds in his hands, belonging 
 to A., should be sufficient : — Held, the promise was not within the statute of 
 frauds, or without legal consideration. McKeenan v. Thissel, xxxiii. 368. 
 
 HOMESTEAD EXEMPTION. 
 
 1. To secure the benefits of the Act of 1850, c. 207, a certificate, as indi- 
 cated in § 4, should be filed with the register of deeds in the county where 
 the land lies ; and, unless the certificate clearly claims exemption from the 
 debts mentioned in § 1 , it will only be efiectual against such as accrue after 
 its record. Lawton v. Bruce, xxxix. 484. 
 
 2. And, to be efiectual against debts mentioned in § 1, the debtor must 
 have been the owner at the time of the contracting of such debt, and con- 
 tinued such at the time of filing the certificate. Lawton v. Bruce, xxxix. 484. 
 
 JUSTICE OF THE PEACE. 
 
 A complaint and warrant was made by a magistrate on the same page ; and 
 opposite his signature, upon the complaint, was a seal, but there was none 
 upon the margin of the warrant, if the complaint and warrant should be 
 separated by a straight line: — Held, the warrant was suf&ciently sealed. 
 State V. Goyle, xxxiii. 427. 
 
 LEVY. 
 
 1. A levy cannot be sustained, by proof that the judgment debtor had 
 executed and acknowledged a lease of the land prior to the attachment, to 
 another for life, and in the lease was a recital that the lessee had that day 
 conveyed the same to the lessor by deed, against the tenant claiming by an 
 absolute conveyance from thelessee, who is shown to have been the former 
 owner. From such recital no satisfactory evidence is furnished of the real 
 character of the conveyance. Parlin v. Ware, xxxix. 363. 
 
 2. A levy, under c. 94, § 11, of R. S. of 1841, in which the description of 
 the common estate exceeds its real limits, and the shares of the debtor levied 
 on are greater than he owns, will be eflfectual to vest his real proportion in the 
 judgment creditor. This provision relates merely to the mode of levying on 
 such estates. Burnham -v. persons unhnown, xl. 565. 
 
 3. After such levy, the judgment creditor holds in common with the co- 
 tenants. Burnham v. persons unknown, xl. 565. 
 
APPENDIX. 603 
 
 MILLS. 
 
 1. Though a mill-dam have occasioned land to be flowed more than twenty 
 years, yet, if the damage occasioned thereby commenced within that period, 
 a claim to continue flowing without compensation carmot be maintained upon 
 prescription. Burleigh v. Lumbert, xxxiT. 322. 
 
 2. The three years " before the commencement of the action," during which 
 a proprietor of land, flowed by a mill-dam, has a lien upon the miUs, mean 
 the three years before the institution of the complaint. And a judgment 
 recovered upon such complaint is a charge upon the estate running with the 
 land, and may be recovered against an assignee of the estate. Pierce v. 
 Kna'pp, xxxiT. 402. 
 
 MORTGAGE. 
 
 If a mortgage, (which was made to secure the performance of a bond,) be 
 assigned, the mortgagee can maintain no action upon it, unless he have also 
 some interest in the bond; for he could have no conditional judgment. Wehh 
 V. Flanders, xxxii. 175. 
 
 PAUPER. 
 
 A special Act dividing towns, and providing as to the duty of supporting 
 paupers as between such towns, passed since the R. S., will govern them. 
 Thus, by the special Act of Feb. 24, 1842, incorporating the town of Au- 
 burn, the town of Minot is bound to maintain persons, becoming chargeable 
 after that day, whose residence was in Minot, by residing on that part of it 
 which was not incorporated into the town of Auburn, although, at the incor- 
 poration of Auburn, residing on the territory incorporated into the new town. 
 Lewiston v. Auburn, xxxii. 492. 
 
 REAL ACTION. 
 
 A person in possession of lands cannot be ousted except by one having a 
 better title. And evidence that demandant's grantor had title to only a por- 
 tion of the premises sought to be recovered, and included in his deed, is 
 material, and wiU so far bar his recovery, although the tenant set up no title. 
 Bruce v. Mitchell, xxxix. 390. 
 
 SHIPPING. 
 
 1. In all cases where goods are shipped by a consignor under a contract or 
 for his benefit he is originally liable for freight. Holt v. Weatcott, xiiii. 445. 
 
604 APPENDIX. 
 
 2. The insertion in a bill of lading of a provision that the goods are to be 
 delivered to the consignee, " he paying freight," will not necessarily relieve 
 the consignor from liability. If he were the owner of the goods, he may, 
 notwithstanding, be liable. Holt v. Westcott, xliii. 445. 
 
 WATCH. 
 
 A watch, which the testator has been in the habit of carrying upon his 
 person, does not pass by a bequest of his "wearing apparel;" nor by a be- 
 quest of his "household furniture." Oooch v. Gooch, xxxiii. 535. 
 
 WAY. 
 
 To recover for damage done to a land holder, by the location of a town 
 road, he must pursue the mode prescribed by R. S., of 1841, c. 25, § 31. 
 Such recovery cannot be had by a statute submission of the claim to referees. 
 Eastman v. Stowe, xxxvn. 86. 
 
 WILL. 
 
 A testator appropriated and bequeathed a sum of mone)', of which the in- 
 terest was to be annually applied toward the support of " Universalist preach- 
 ing," and directed his executors to pay the fund to the trustees of a Univer- 
 salist society in S., provided one should be formed within two years from the 
 testator's death, and provided also, that an additional annual specified sum 
 should be raised and applied from other sources toward the support of such 
 preaching ; and, upon a failure of the foregoing conditions, the fund should go 
 to another Universalist society, upon certain prescribed conditions ; and that, 
 if the last mentioned condition should fail to be performed, the fund should be 
 paid by the executors to the heirs of the testator : — Held, — 
 
 1st. That the bequest, being for charitable or pious uses, was sufficiently 
 certain in its purposes to be upheld : — 
 
 2d. That the society, if formed within the two years, would be competent, 
 as cestuis que trust, to receive the benefit of the fund : — 
 
 3d. That the trustees, whom the society should appoint, and not the 
 society itself, were the legatees ; that they alone could maintain an action 
 for the fund : — and — 
 
 4th. That the requirement to raise and apply the prescribed additional 
 sum annually was a condition precedent to any claim by the trustees against 
 the executors. Universalist Society in Sweden v. Kimhall, xxxiv. 424. 
 
 WITNESS. 
 
 Where both parties to a replevin suit claim the property by purchase from 
 the same vendor, his interest is balanced ; and he may impeach one of the 
 sales, without a release. Nut& v. Bryant, xxxi. 553. 
 
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