The Portland daily press., 1881-04-06

The following decisions and rescripts have been
received from the law court in cases pending on
the docket of the Superior Court for Cumberland
county.
, Jesse Dyer VS., Norris G. Curtis and al
Rescript by Symonds, j. To close by means of
dam, a creek Oh arm of the again the ordina-
ry ebb and flow of the tide, make it pool
of fresh water for the formation of ice for the
ket, without either the direct authority of the Leg
islature, or the delegated action of the harbor
commssioners-if the case falls within their juris
dction-is in the same sense public nuisance as it
--would be 10 build wall across road or street.
The main consideration for the covenants of the
defendants contained in the lease from the plain
tiff was an agreement on the part of the latter to
keep up, during the term-from the first of Novem-
Der in each year till the twentieth of the following
March-this permanent obstruction of public
right If this was not DONE there was no ice to be
cut. 1t follows that the lease was an illegal con-
tract AID void. 1t imposed no obligation upon the
plaintiff to maintain the dam in the manner stipu-
latsi-l Iisan,e which exposed him constantly
10 indictment. and which anybody having lawful
occasion to exercise the public right of .ssage upon
the creek might abate, committing no breach OF
the peace and doing no damage to such private es-
tate of The halloween as might exist consistently
with the public right 1t created no liability against
the defendants as tenants of the ice-feld thereby
formed
The plaintiffs deed gave him no right to thu ice
cutting and no title to the lee. He shows right
of his deed. There was no actual custer of the
defendants from that part of the pond where they
cut the 5000 tons of ice mentioned in the declara-
tio1. The right of the plaintiff to exclude Them if
they did not interfere with his mill privilege does
not appear They remained in possession and took
the ice. If either party has derived an advantage
from the lease. the law leaves them as they stand
Judgment tor defendants.
George Hearn VS.. Thomas Shaw ct ais.
This was an action to recover damages for an al
legged malicious suit and prosecution and for abuse
OF legal process. The verdict was for the defend
ants and the plaintiff filed exceptions
lescript by Symonds, il. Whatever may be
the fact regard to the correctness and pertnency
s.1.a ru1 of N thp hrSt fad
ruling. the exceptions as presented do not show an
error in refusing to adopt it in terms part of
the charge Appropriate instructions the exceptions
state we're given as to what constitutes probable
cause for commencing an action. The jury were
also told they might infer malice from the want OF
it, then, the facts supposed in the request were
such as leave reasonable probable cause for
bringing the original action-aud it is on this
ground that malice is to be implied from them, if
atall-it follows that the jury told in effect,
that they might infer malice from them and the
ruling requested must have been substantially in
cluded in those given.
IL The second ruling requested was refused
except given in the charge. No part of the charge
which includes the same subject as reported. The
exceptions therefore fail to show error, if one
a ruling that the facts stated were evidence OF
want of good cause and of malice in continuing
the attachment but referred 70 their effect in evi-
dence upon the character of the suit az its iucep-
ton. If the question were before this Court, it is
by means clear that the holding of the attach
rnent, after the discovery of such new fact, woulJ
be evidence that the action groundless end ma
'eious at the start.
NJ. With reference to the full extent of the
claim alleged in the declaration-that the actor
was be, -un maiciously and without cause.-the rul
ines were correct. 1t was for the plaintiff to re
n,,sst rul 'og that would enable him to OF
proof of part Of bis case namely, on proof OF thu
abuse of procesS properly issued AT least it shoult
arnrar that The teotion of the Court called t.
This minor cause of sc,ion as distinct grouud o
liability included in ne declaration. otnerWise
it was not error to treat the entire cause OF actor
as the one before the Cour:j and to give the rule
of law relating to it.
Executions oVerrued.