who subsequently obtained judgment in his suit, could not take the land for his debt, there having been no entry to foreclose the mortgage; and that a deed of release and quitclaim, afterwards given by the original debtor to the purchaser of the equity of redemption, vested in the latter the title to the whole fee. Bullard v. Hinkley, 5 Greenl. 272. 8. A deed of quitclaim from the mortgagee to the mortgager does not operate to extinguish the mortgage till it is delivered, although it may previously have been put on record by the mortgagee. Ib. See DEED, 6; ESTATE, 2; REAL ACTIONS, 1; DISSEIZIN, 2. MORTGAGE OF CHATTELS. 1. Where both parties proved that a bill of sale, though absolute in its terms, was intended only as collateral security for a debt due, and this done with good faith; the transfer was holden valid as a mortgage. Read v. Jewett, 5 Greenl. 96. 2. If a bill of sale absolute on its face, be in truth made for collateral security only; or if the possession of a chattel remains in the vendor, after sale;-neither of these circumstances is conclusive evidence of fraud, per se; but is only a fact to be considered by the jury in determining the question of fraud. Ib. 3. The possession of a personal chattel, by the mortgager, is not inconsistent with the mortgage, and furnishes, of itself, no conclusive evidence of fraud. Holbrook v. Baker, 5 Greenl. 309. 4. Nor is it a valid objection, by a creditor, against a mortgage of personal chattels, that it is made to cover future advances, if it is also made to secure an existing debt. Ib. 5. On a mortgage of a chattel, the mortgagee's putting his hand on it, and the vendor's saying that he delivered it, were held to be a delivery, though the chattel was not removed from its place, and was left in the possession of the mortgager. Holbrook v. Baker, 5 Greenl. 309. NONSUIT. A decision of the court in favor of the defendant, upon an agreed statement of facts, and a nonsuit of the plaintiff entered, and judgment thereon for the defendant for his costs, pursuant to such agreement, constitute no bar to a subsequent action for the same cause. Knox v. Waldoborough, 5 Greenl. 185. NUISANCE. 1. The defendant dug a ditch whereby water was conducted from his brewery to an old clay-pit in the plaintiff's brick-yard; where the water became stagnant and so offensive that the board of health ordered the plaintiff to fill the pit, which she caused to be done at her own expense. It was held— That an an action on the case for a nuisance lay against the defendant: That the plaintiff might bring such action, notwithstanding she had made a contract with a third person whereby he was authorized to dig and manufacture into bricks in the yard as much clay as he pleased at a certain price per thousand, and to have such use of the yard as was necessary and convenient, and he did accordingly use part of the yard for that purpose:That if filling the pit was necessary, the expense of filling it should be included in the assessment of damages;— And that as the filling of it was ordered by the board of health, it should be presumed to have been necessary, unless the contrary were shown. Shaw v. Kummiskey, 7 Pick. 76. PARISH. 1. Where a town had become a congregational parish, by building a meeting-house for that denomination, and settling a minister; and afterwards an act was passed incorporating certain individuals by name, with their families, having B. R. for their pastor, with their associates and such others as might afterwards associate with them, as the congregational society in the same town of P.;-it was held that this act did not create a new corporation, but only recognised and confirmed the rights of the parish already existing and entitled to the parish funds, and to the lands reserved for the use of the ministry in the town. Parsonsfield v. Dalton, 5 Greenl. 217. 2. The legislature having incorporated certain persons with their families' into a religious society, it was held that the minor sons, as members of the father's family, became members of the corporation; and continued such after arriving at full age, until they changed their membership in some mode provided by statute. Bradford v. Cary, 5 Greenl. 339. See MEETING-HOUSE. PARTNERSHIP. 1. Where several of the partners in a company consisting of a number of persons, at a meeting of the company gave their note, by discounting which, money was raised with which the debts of the company were paid; it was held, that the partners who gave the note could not maintain assumpsit against another partner for a contribution for his proportion of the note, even after the company had ceased to do business, no settlement between the partners having been made, and debts still remaining due from the company. Haskell v. Adams, 7 Pick. 59. 2. Where a partnership for the purpose of running stage-coaches, issued to its members certificates of their shares in the joint stock, containing a provision that the shares should not be transferred without the consent of the directors and treasurer, and the plaintiff, to whom a share had been assigned without such consent, brought a bill in equity to compel the company to account, alleging himself to be a partner, it was held, that he was not a partner, and that the bill could not be sustained. Kingman v. Spurr, 7 Pick. 235. 3. One partner cannot render another liable for his fraud, without an actual participation. Sherwood v. Marwick, 5 Greenl. 295. PARTY TO SUIT. See WITNESS; ANNUITY. PLEADINGS. 1. Whether, in an action upon a statute, the omission of the words contra formam statuti, can be supplied by any other words of equivalent import; quære. Barter v. Martin, 5 Greenl. 76. 2. In an action against two of four joint and several promisers, if it is stated in the writ that four promised, it is material also to allege that the other two are dead, or otherwise incapable of being sued; or it will be bad, and may be reversed on error. Harwood v. Roberts, 5 Greenl. 441. See TAX, 3; REAL ACTIONS, 2. POOR DEBTORS. A debtor, committed by his bail after a return of non est inventus, and before scire facias, is entitled to the prison limits in the same manner as if committed by order of court, upon a surrender before judgment in the original suit. And if the creditor does not charge him in execution within fifteen days after such commitment, he may lawfully go at large, the bond for the prison limits having done its office. Thayer v. Minchin, 5 Greenl. 325. PRACTICE. 1. Where a writ of entry brought by the grantee in the name of the grantor to recover land of which the grantor was disseized at the time of the conveyance, was commenced without the knowledge of the grantor, but was prosecuted with his consent, the court refused to order a nonsuit. Cleverly v. Whitney, 7 Pick. 36. 2. If, pending an action brought by the trustees of a charity, one of the plaintiffs resigns the trust, it defeats the action; and when a suggestion of the resignation is filed in the case by the plaintiffs themselves, the defendants may take advantage of it without pleading it in abatement. Adams v. Leland, 7 Pick. 62. 3. A motion for a venire de novo comes too late, if not made till after judgment is arrested, though it be made in the same term. Gibson v. Waterhouse, 5 Greenl. 19. 4. If a case is referred to the decision of the court, upon a statement of facts agreed, without special limitation, the course is to enter judgment for the defendant, if the facts would verify, any plea which would be a bar to the action. Gardiner v Nutting, 5 Greenl. 140. See WILL; AMENDMENT. PRINCIPAL AND AGENT. 1. If a factor, having sold goods and received the price, unreasonably neglects to render an account of sales, an action may be maintained against him for the proceeds, without a previous demand, and notwithstanding he may have rendered an account before the action was commenced. Langley v. Sturtevant, 7 Pick. 214. 2. Where the consignor of the goods lived in Massachusetts, and the factor in Alabama, the omission to render, within two years, an account of sales, was held to be unreasonable neglect. Ib. 3. The liability of a factor to his principal for the proceeds of sales made by him under a del credere commission, is not affected by the statute of frauds, and therefore may be proved by parol evidence. Swan v. Nesmith, 7 Pick. 220. 4. A proprietors' committee having in their behalf entered into a submission of demands to referees, under the statute, representing themselves as duly authorized so to do, and the proprietors having been heard upon the merits before the referees, making no objection to the submission ;-upon error brought by them to reverse a judgment rendered upon the award, the court presumed that the committee had due authority, though the want of it was assigned for error. Fryeburg Canal v. Frye, 5 Greenl. 38. 5. The land agent in Maine cannot maintain an action in his own name, upon a promissory note not negotiable, given to him in his official capacity, for timber belonging to the state. Irish v. Webster, 5 Greenl. 171. 6. The doctrine that a principal is answerable for the fraud of his agent or factor, does not apply to special agents. Sherwood v. Marwick, 5 Greenl. 295. See ASSUMPSIT, 4; RELEASE. PROFESSOR, Removal of. See CORPORATION. PROMISSORY NOTE. See BILL OF EXCHANGE AND PROMISSORY NOTE. PUBLIC AGENT. See PRINCIPAL AND AGENT, 5; ASSUMPSIT, 4. REAL ACTIONS. 1. In an action brought by a mortgagee, against a stranger, to recover possession of the lands mortgaged, the fact that the demandant had assigned his interest to a third person, cannot be given in evidence under the general issue, but must be specially pleaded in bar. Howard v. Chadbourne, 5 Greenl. 15. 2. If the tenant in a writ of entry, after action brought, purchase of a third person an outstanding title derived from the demandant himself, this cannot be pleaded in bar of the action. Aliter, if the title was purchased directly from the demandant. lin v. Haynes, 5 Greenl. 178. Par 3. In a writ of entry it is competent for the tenant, under the general issue, to disprove the seizin of the demandant, as alleged in the writ, by showing that his grantor had previously conveyed the title to a third person; even though the tenant does not claim under such grantee. Stanley v. Perley, 5" Greenl. 369. 4. In a writ of entry, to a plea that the tenant was not tenant of the freehold, with a disclaimer, the demandant replied that, at the time when, &c. the tenant was in possession of the demanded premises, claiming to hold the same as his own, concluding to the country; and the replication, on special demurrer, was held good. Parlin v. Macomber, 5 Greeni. 413. RELEASE. Where a factor, having sold goods of his principal, took a negotiable note in his own name for the price, and before the same became due, the purchaser failed and assigned his property by an indenture, which contained a release of all debts due to the creditors who executed the same, among whom was the factor, who had several demands of his own against the purchaser, it was held, in an action by the factor to recover back money advanced to the principal, that parol evidence was not admissible to show that the factor intended to release only the debts due to himself; and that as the purchaser was discharged from the note in question, the principal might avail himself of that fact in defence to the action. Deland v. The Amesbury Woollen and Cotton Man. Com. 7 Pick. 244. See BILL OF EXCHANGE AND PROMISSORY NOTE, 6. SALE OF CHATTELS. 1. Where D. contracted to build certain machinery for S. and to deliver it at a certain time, and F. contracted with D. to build the machinery and deliver it to S. at the time agreed, for which D. contracted to pay F. a certain price, and the machinery was delivered by F. to S. after the time stipulated, the delivery having been delayed at S's. request; it was held, that D. was liable to F. for the price, if D. assented to the delay of delivery, or if, knowing S's. request to have it delayed, D. did not signify his dissent. Flagg v. Dryden, 7 Pick. 52. 2. Where in such a case F. had given a bill of parcels of the machinery, to one of his creditors, as security for his debt, but did not deliver the machinery, it was held, that no property in it passed to the creditor; and therefore that the bill of parcels did not impair F's. claim for the price against D., after the machinery was delivered to S. Ib. 3. The machinery after the delivery to S. having been levied or |