Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1882-06-02

Dseaaasas II x4w.
The following decisions lave b-en received
y A. c. Otis, Esq, Clerk of the Middle Law
1 District:
kESHEsEc COUNTY CAsEs.
Chmena n. Pike W. Sarah Neal ct al.
Liooey for ptff; Baker and Baker for def.
Re'eript.-No recovery can be had upon
recoRnizance taken in . suit or proceeding,
90 tne SUBJECT matter Of which the court to
~rlcn 1t 10 returnable has no Jurisdiction.
David Colder ct al. in ca. ". Henry Fetch
| er ct Al. Robinson and Fogg for Diff;
Heath for def.
| hescrtpf-Thie is q bill in equity to enforce
the collection Of an execution against one of
the respondents from q debt alleged to be dine
nim from the estate of Joshua Berry deceased.
~ appears that Berry devised all his property
after the payment of his debts to the other
respondent, and it does not appear that she
| mas any other connection with the subject
matter Of the suit, or has received any person
al property. She therefore has covered no
property, nor does she owe any debt to her
| hnshand No claim can therefore be entered
sgainst her.
The other defendant is the debtor himself
tie was appointed executor of Berry's will.
but never qualified. There is therefore no
legal representative of Berry Who is claimed
to be the debtor of this defendant This debt
cannot be legally established until such rem
resentative is appointed, and until that is
done there is no fund upon which the COM
plainants debt can be levied. II the com.
piainants have an assignment of the alleged
debt they have an adequate remedy in the
Probate court. But in any event this bill
cannot be sustained until such representative
is appointed for want of parties
Bill dismissed wlthou: prejudice.
Herbert N. Heath, assignee for part. VS.. S.
;. Brooks. Heath for pltf: Brooks pro Sc.
Reseript.-This case is submitted without
argument, and the only point presented is,
whether a lien claim for materials furnished
in the erection of q dwelling house shall pre-
vail over mortgage claim upon the same
premises, existing prior to the date when the
materials were contracted for. BY section %
CHI. 81, r. s., the lien attaches if the articles
were furnished under q contract with or by
consent Of the owner. There is no evidence
IN this case, one way or the other, whether
the mortgage consented to the furnishing or
| not. or whether he knew about it or not The
consent being condition of the liability
must be proved and is not to be assumed
BY 1928 of the same chapter. as amended by
Sh' AIp, VI lCbu, tuc Wv anu mere the
mortgage appears as Owner), may prevent
such lien by giving written notice that he will
not be responsible for materials or labor to
be furnished. But what is ''such lien?" 1t
must be that referred to in section 81 and
none by that section can exist unless there is
consent at least of the owner. That con-
sent must somehow be shown. Here there is
no evidence of it directly or indirectly The
late case Of Morse VS.. Dole settles the ques-
ton adversely to the petitioner.
Petition denied.
Mary l.. Bush VS.. Cyrus B. Collins ct al
Clay and Blake for plff Farr and Potter
for deft.
Reseyipt.-lst. THE designation and loca-
ton and the appraisement of said lot BY the
selectmen" must be shown by the record
There being none, their place cannot be sup
piled by parol evidence.
I'd. There being no records to show a s.des-
ignation and location of the lot," such as
there are relating to the subject matter can
not be a justification for taking any particu-
lar lot.
Sd. The definition of license given in the
BILE to such cases.
4th. The requested instruction was proper
ly refused. for, among other reasons, it does
not yet appear that the school house does or
will belong to the plaintiff.
Motion and exceptions Overruled.
Susan Baker VS.. Belden Bessey ct al. Baker
and Baker; Webb.
Rescript.-A declaration in writ of entry
is not defective because it alleges the de-
mandant's ownership in the demanded
premises to be fee, instead of a fee-simple;
nor because the premises are described, with
out metes and bounds as ''the mill and dam.
with the appurtenances. and the land under
and adjoining them and used Herewith" a
general description of the locality of the
premises being added.
The same description, being the language
of the statute, is sufficient in a deed from an
officer who sold the premises under a lien
obtained thereon by judgment in a complaint
for flOwage.
There are two dams across a stream
running from a pond, upon which stream q
mill is situated, one at the mill, the other
half mile above the mill, and within mile
of the outlet of the pond. The lower dam
flows to the upper. The upper is a reservoir
dam used to preserve head of water for the
mill below. The same person owned the
mill and both dams, but not all the land upon
the stream between the dams, using them for
many years in conjunction with each other.
Held. that an officer deed of the mill-property
describing it as "the mill and dam, with the
appurtenances." carries, by express terms,
the mill dam below, and by implication, an
easement in the dam above. The conveyance
gives the grantee a right to use the upper
dam to maintain head of water for the mill
below.
The defendant is sued as Belden Bessey,
while his true name is Jonathan Belden
Bessey. An objection therefor does not lie
to this action, there being no plea in abate-
ment. Nor does an objection lie to a sale of
defendants property upon judgment against
him in which he was sued as Belden Bessey,
he having appeared and contested the suit
under that name.
Judgment for plaintiffs for $40 and
interest from date of writ.
MONMOUTH.