Volume 54 — Maine Reports

ON Report from JSTisi Prius, Bab,rows, J., presiding. Assumpsit for money bad. and received, by the executors of the last will and testament of Samuel Chadwick, to recover one-quarter of the earning's of the ship Catherine.” It was admitted that the defendant received the earnings from the ship’s husband, and that a due demand for the same was made prior to the commencement of the suit.

Oh Report from Nisi Prius. Assumpsit upon an account annexed consisting of items running from March 1, 1850, to June 13, 1858, and amounting to $758,17. There was also a credit by pew rent, from 1851 to 1854, of $30, and by two notes given by the defendant to the plaintiff of $100 each, dated May 19, and Sept. 15, 1856. Writ was dated June 9, 1862. Plea general issue and the statute of limitations.

Indictment for a violation of c. 4, of the Public Laws of 1861. The case came before the full Court on demurrer to the evidence.

On facts agreed. Writ of Review. The facts were reported with an agreement that, if the effect of the judgment in New Brunswick between the parties concluded the defendant from maintaining his original action against the plaintiffs, the Court were to render the proper judgment for the plaintiffs; otherwise the case was to stand for trial. The record of the foreign judgment was set forth in ex-tenso in the agreed statement.

ON Exceptions and Motion to set aside the verdict as being against the evidence, and to quash proceedings under the complaint. Libel filed under c. 33 of the Public Laws of 1858. The facts sufficiently appear in the opinion. The statute requires three witnesses to make the oath. The jurat shew but one. The complaint being thus defective, the warrant was illegally issued, and offered no justification for the seizure.

On Eepoet from Nisi Prius, the full Court to render judgment by nonsuit or default, according to the legal rights of the parties. Case, for obstructing an alleged right of way.

On Report. Case to recover amouut paid out by the plaintiffs on a judgment recovered against them by one Partridge. These defendants were verbally notified of the peudency of the former suit, and were present as witnesses and otherwise aiding at the trial of the former suit. The excavation was made in the sidewalk on Silver street, in front of the defendants’ buildings.

<p>On Report from Nisi Prius, Walton, J., presiding.</p> <p>Assumpsit for money paid.</p> <p>The plaintiff introduced three notes, signed by the treasurer of the York and Cumberland Railroad Company, payable to Daniel Hayes, and indorsed by the latter, plaintiff, defendant and others. It was proved that one Williams recovered, at a previous term, several judgments on said notes against the several indorsors, and collected the whole amount of the plaintiff. The plaintiff claimed to recover of the defendant contribution, upon the ground that the indorsers were joint and not several, and offered to prove that it was " verbally, agreed by and between all the indorsers, previous to indorsing, that their indorsements should be joint and not several; and that, in the event of liability thereon, and the payment thereof by either, of the whole amount of said notes, each should pay to the one thus paying his equal proportion of the amount thus paid, as joint indorsers and not as several.”</p> <p>The case was withdrawn from the jury and submitted to the full Court, with the agreement that, if the evidence offered was admissible, the case was to stand for trial.</p>

On Exceptions and motion to set aside the verdict as being against law, and manifestly against the weight of evidence. Assumpsit on a policy of insurance, dated Dec. 16, 1861, causing' Stephenson & Co. * * to be insured * * for whom it concerns, loss, if any, payable to Stephenson & Co., in the sum of seven hundred dollars, on schooner ' Arbutus’ of,” &c., at and from Portland, Me., to Cardenas, and at and from thence back to a port of discharge in tlie United States.

ON Exceptions from Nisi JPrius. Special assumpsit by one of three tenants in common against the administratrix of the estate of one of the other co-tenants for the plaintiff’s share of the rents, profits and income of the joint estate, which accrued between June, 1853, and Oct., 1859, when the defendant’s intestate deceased. It appeared that William Currier died March 7, 1847, leaving certain real estate including that described in the writ.

ON BxceptioNS, from Nisi Prius, Babeows, J., presiding. Case, for damages caused by a defect in a highway. The verdict was for the plaintiff. The facts appear in the opinion.

<p>ON EXCEPTIONS from Nisi Prius, Danfoiíth, J., presiding.</p> <p>Petition for Mandamus.</p> <p>The presiding Judge overruled the demurrer and ordered the peremptory writ to issue. The writ, return and other facts sufficiently appear in the opinion.</p> <p>The demurrer admits the facts stated in the alternative writ. The writ once issued stands by itself, independent of the other papers. The relator must set forth in the alternative writ the facts upon which he relies for relief. Angel & Ames on Corp., (6th ed.,) § 720.</p> <p>The facts stated in the writ are such by law as entitle the relators to the peremptory writ. The facts alleged and admitted by the demurrer are sufficient to establish the proposition that the respondents were not duly elected. As to the effect of votes illegally received, counsel cited Angel & Ames on Corp., § 136 ; as to the effect of the improper rejection of legal votes, Angel & Ames on Corp., § 138. The writ alleged sufficient to bring this case within the authorities cited.</p> <p>Mandamus is the proper remedy. Rex v. Barker, 3 Burrows, 1267; Baker'v. Johnson, 41 Maine, 20; Tapping on Mandamus, 19; Angel & Ames on Corp., § 700; Rex v. St. Margaret, 4Maul. & Sel., 250; Rex v. Damarest, 5 A. & E., 584; Tap. on Maud., 257, 258, 308, 314, 19; Rex v. Mayor of Cambridge, 4 Bur., 2008; Borough of Bof-fing, 2 Strange, 1003.</p> <p>The relators’ interest is sufficient to entitle them to this remedy. Wellington, pet’r, 16 Pick., 105 ; Angel & Ames on Corp., § 698.</p> <p>The petitioners have no remedy under R. S., c. 3, § 4.' This statute does not apply to meetings for the election of officers, but to such as1 relate to ordinary business. This appears from the clause requiring the selectmen to insert the article " in the next warrant,” &c. Preceding sections provide for meetings affecting organizations of towns.</p> <p>Quo warranto is not the remedy. That remedy relates to persons seeking an office upon the ground that some other person had usurped the office that the relators were entitled to. Relators here contend that the respondents were not elected, and they call for a new election, which is not within the scope of quo warranto. Strong, pet’r, 20 Pick., 496; Howard v. Gage, 6 Mass., 462; Woodbury, petitioner, 40 Maine, 304.</p> <p>The clerk and treasurer need not have notice. They could not have been joined as parties. Tapping’s Mandamus, 357; 3 Bacon’s Abr., 540-1; Pease v. Mayor of Leeds, 2 Str., 640; Hex v. Mayor of Abington, 2 Salk., 431; Regina v. Mayor of Hereford, 2 Salk., 699, 701.</p> <p>The answer was waived when the demurrer was joined. If not, the return is insufficient in law, inasmuch as the respondents were estopped to set up such facts to sustain their election. The return shows'they were the very board of selectmen who held the judicial session to adjudge upon the qualifications of voters at their election. They are estopped to deny their own finding in this respect. The names of these voters named in the return, — "Linscott, Conant and Smith,” — as non-residents, were placed upon the lists by the respondents, and necessarily remained there when they voted. For the moderator cannot receive a vote until he has found the voter’s name and marked it. R. S., o. 4, § 21. For the legal effect of the adjudication of the selectmen, Harris v. Whitcomb, 4 Gray, 433. Relators are not estopped by selectmen’s finding as to the qualification of the minor’s right to vote.</p>

On Exceptions from Nisi JPrius, Walton, J., presiding. Trustee Process. The alleged trustee disclosed — that he contracted with the principal defendant to repair the sills of a store on Main street, in Lewiston, and remove it to a lot on Lisbon street, place it in its proper position, and to level and plumb it; for which the defendant was to receive $300 when the work was completed and not before.

ON Exceptions from JSfisi Frius. Assumpsit for two hundred and fifty cords of wood at $2,25 per cord. General issue and statute of frauds pleaded.

On Exceptions from Nisi Prius. Assumpsit on a promissory note, brought by the payee against the principal and surety. The verdict was for the defendants and the plaintiff alleged exceptions. The remaining material facts appear in the opinion.

<p>A roploYin bond, in less than “ double the value of the goods to be replevi-ed,” is good at common law.</p> <p>If a plaintiff in replevin neglects to comply with the judgment for return, following an abatement of the writ, because of such defective bond, the defendant in replevin may maintain an action thereon, notwithstanding the writ was abated upon his motion.</p>

<p>On Exceptions, from Nisi Prius, Dickerson, J., presiding.</p>

Bill in Equity. The allegations of the bill and answer, and the material facts in the proofs, sufficiently appear in the opinion.

ON Eepoet from Nisi Prius, Babbows, J., presiding. Assumpsit oil the following receipt:— Sagadahoc ss. — Bath, May 12th, 1862.

<p>On ExoeptiÓNS from Nisi JPrius.</p> <p>Assumpsit for hay sold, and for money had and delivered.</p> <p>It appeared from the testimony of the plaintilf that he had about sixteen tons of hay, of two qualities, in his barn, where about all of it could be seen; that the defendant came, and after examining it, bought it for $14 per ton for the second quality, and $17 for the first, the plaintiff to deliver it on board the defendant’s vessel. Four loads were unloaded without objections by the defendant, but while unloading the fifth load the defendant found fault with the quality, and said he would not have the remainder of that load consisting of three bundles, nor the sixth load then present but unloaded. Plaintiff told the defendant he must take all or none. Defendant said it was not good hay nor the hay he had bought, and he would not have it. He, however, agreed to refer it to one Greenleaf, to which the plaintiff assented. Greenleaf said he called it a fair lot of hay, and that it was the same hay that ho saw at plaintiff’s barn, and that, if the defendant would not take it, he, (Greenleaf,) would, at an agreed price.</p> <p>When Greenleaf went away, the defendant told the plaintiff he would not have the hay. Plaintiff replied he should not pick it, but he must have all or none.</p> <p>The plaintiff, hauled the balance to- Greenleaf, intending to haul the whole to him. While plaintiff was making arrangements to take the hay delivered to defendant, the vessel of the latter sailed to Boston — sailed on Sunday.</p> <p>Defendant sold the hay, about 32 bales, — 5 tons, — in Boston, at $23 per ton. Upon arrival home, defendant told the plaintiff he had sold the hay and would pay him, but never did.</p> <p>Plaintiff told the defendant same day that Greenleaf had bought all the hay. Greenleaf paid for all the hay delivered to him. Plaintiff never went to the wharf after the hay, after defendant’s vessel sailed. The hay was not branded.</p> <p>Defendant moved for a nonsuit.</p> <p>The plaintiff contended that the contract of sale was rescinded- by mutual consent, and that the hay, thus remaining his property, it was taken away without his consent and converted into money, and, under the circumstances, the count for money had and received could be maintained. Also that, as there was no lawful sale, there was no sale; and the property remaining the plaintiff’s, and it having been taken to Boston and sold for money, the count for money had and received was maintainable.</p> <p>But the presiding Judge sustained the defendant’s motion and ordered a nonsuit and the plaintiff alleged exceptions.</p> <p>1. The hay did not cease to be the plaintiff’s property because it was not branded. If the plaintiff had offered the hay for sale or shipment without the brand, it would then only become a subject of forfeiture, but not forfeited. It would not cease to be plaintiff’s property until libelled, tried and condemned by a competent court. It would be subject of larceny. Plaintiff might maintain trespass or waive the tort and bring assumpsit. A fortiori, be may recover the proceeds received for it.</p> <p>2. Defendant’s promise after receiving the money will support the money count.</p> <p>3. If the contract had not been rescinded, it was void. Plaintiff could not recover the price agreed, as for goods sold, because contract is forbidden by statute. But the hay remained plaintiff’s property to feed his stock or to use in unforbidden way, and, while plaintiff’s, defendant took it to Boston and sold it. Defendant violated no law there ; and, if taken there and sold with consent of plaintiff, the latter would not violate the statute which provides that that hay shall be branded which is " pressed and put up in bundles for sale in this State.” 2 Greenl. on Ev., § 117.</p> <p>Pickard v. Bailey, 46 Maine, 200, and Buxton v. Hamlin, 32 Maine, 448, do not apply. This action is not brought to enforce a contract forbidden by statute. First count is for value of hay taken without consent, and second count for money realized out of plaintiff’s hay. The sale of unbranded hay is simply malum prohibitum. Faikney v. Renores, 4 Burrows, 2069 ; Pepper v. Haight, 20 Barb., 429 ; Curtis v. Leavitt, 15 N. Y., (1 Smith,) 9.</p>

Upon the facts as agreed by the parties, which the opinion renders it unnecessary to report, the case was submitted, with an agreement that the action upon the appellant’s administration bond should abide the opinion of the Court in this case.'

<p>If the plaintiff, (one of the members of a firm including the defendant and others, each of ■which purchased and held lands for the general objects of the co-partnership,) sell his entire interest in the partnership property, including the lands, to the defendant, taking back a bond reciting the sale and conditioned .to “.save the.plaintiflf harmless from all the liabilities of said firm and growing out of said firm;” a judgment rendered against all the members of the firm, on a petition for partition of one not a member 'thereof, commenced before, but determined after, such sale, and defended by an attorney retained, by the defendant, in the name of all the members, is covered by the bond; and, if the plaintiff pay such judgment, he will be entitled to recover the amount thus paid, in an action upon said bond.</p>

<p>On Exceptions from FTisi Prius, Dickerson, J., presiding.</p> <p>Case for malicious prosecution.</p> <p>Positive proof of marriage essential. 2 Greenl. on Ev., §§ 461-2-3. Dilatory pleas to be construed most strongly against defendant. 1 Chit, on PI., 544, Stoi'y’s PL, title Pleas in abatement. Husband need not join, when he has no personal interest, or is out of the jurisdiction. 1 Chit. on PL, 541-2; JSTye v. Spencer, 41 Maine, 272; K. S., c. 61; Pub. Laws of 1862, c. 148; Oliver’s Prec., 70; Gregory v. Paul, 15 Mass., 30; Walford v. Duchess of Pienne, 2 Esp. R., 554; Oarroll v. Blencow, 4 Esp. R., 27 ; Rangier v. ITummell, 37 Penn., 130; 3 & 4 Will., c. 42, §11; Stephen’s PL, 49 — 50.</p>

<p>Bill in Equity to redeem certain real estate frc a mortgage.</p> <p>The bill substantially alleges that on June 28, 1853, ■. 3 John B. Jones, being the owner of certain land (descril i of the value of $7000, mortgaged the same to one Chand ' since deceased, to secure said Jones’ notes for $2000 ; tl on May 5, 1856, the right of redemption still remaining . said Jones, one Lincoln, a creditor of said Jones, attach » said Jones’ right in equity on a writ against him; that, on May 6, 1856, one Longfellow, (one of the respondents,) also attached said right in equity on a writ against the said Jones; that said writs were duly served, returned and entered, and judgments rendered thereon at Augusta, at the November term, 1857, in favor of said Lincoln, for the sum of $1164,18, and in favor of said Longfellow, in the sum of $1144,43 : that executions were duly issued on said judgments on January 8, 1858, which were duly delivered to one Clark, then sheriff of Androscoggin county, who then and there, within thirty days after the rendition of said judgments, duly seized, advertised and sold at public auction, all of the right of redeeming said premises which said Jones had at the time of said attachments, to said Longfellow, for the sum of $2500, or thereabouts, he being the highest bidder at said sale, in full satisfaction of said executions, as by said Clark’s return thereon; that, on March 15, 1858, said Clark, by his deed duly executed, conveyed said Jones’ right to redeem said promises to said Longfellow; that, on April 30, 1859, said Longfellow conveyed one undivided half of said premises to one Edward T. Chapman, for a valuable consideration, which deeds were duly and seasonably recorded; that the complainants, (the heirs of said Chapman,) are informed and believe that the heirs and legal representatives of said Chandler duly assigned said notes and mortgage to the defendant, Abial M. Jones, who afterwards assigned the same to the defendant railway company, and that, long after said attachments, said John B. Jones conveyed said premises to said Abial M. Jones; that, on Sept. 26, 1864, said Abial M. Jones duly conveyed said premises to said railroad company, who have ever since been in possession thereof, taking, the rent and profits, amounting to $1200, besides the sum expended for repairs, &c.</p> <p>The bill further alleges a demand and refusal to account, a tender of the amount due on said mortgage, a demand of a conveyance of the premises, and that the complainants are the legal representatives and heirs at law of the said Chapman. The prayer is, that the respondents may answer, come to a joint account, and that the complainants be let in to redeem, &o. '</p> <p>The bill was returnable at Nov. term, 1865. The answer denied the right of the complainants to redeem the mortgage, because, among other things, the attempted sale of said equity of redemption was made by a single sale on two executions jointly. The answer contained numerous other averments, which the view, taken by the Court, renders it unnecessary to report.</p>

On Exceptions from Nisi Prius, Dickerson, J., presiding. Case against the defendant, as sheriff, for the default of his deputy, Josephus Stevens, for not applying and paying over to the plaintiffs money received from the sale of goods attached. Plaintiff introduced the record of a suit Wm. II. Baldwin & al. v. B. II.

On ExceptioNS from Nisi Prius, Walton, J., presiding. In the application, the question was asked — by whom are the premises occupied, and for what use?” The answer was — self and family for farm use.” James M. Qarpenter, called by plaintiff, testified : — I have been agent of the defendants for nearly seven years. I took the application of the plaintiff for this policy of insurance. I filled it myself. I inspected the premises and wrote it out from what I saw.

Bill IN Equity. The case was heard on demurrer. The bill substantially alleges, that the Kennebec and Portland Railroad Company, a corporation, &c., and certain others named, stockholders and bondholders therein, complain against the Portland and Kennebec Railroad Company, a corporation, &c., Richard D. Rice, Darius Alden, Nathaniel M. Whitmore, Sarah Hagar, administratrix of the estate of Marshall S. Hagar, deceased, Geo. F. Patten, John Patton, Wm. D. Sewall, Jos.

<p>An answer to a bill in equity, complete in every respect, cannot be treated as an answer until the party has filed it.</p> <p>If he died before filing the same, it cannot be filed as an answer by the solicitor.</p> <p>His executors may, however, consider how far and to what extent they can properly incorporate into their answer the facts set forth in the unfilled answer.</p>

ON Exceptions from Nisi Prius. Assumpsit for $250, for so much money had and received, with a specification of two hundred dollars and interest, delivered July 14, 1862, to the defendant, then cashier of the Bank of Somerset, with directions to appropriate the same to the payment of a note on four months, for that amount, dated April 19, 1862, and payable to said bank, which money the defendant refused and neglected to so appropriate.

<p>By virtue of K. S., c. 131, § i,* a person substantially charged in an indictment -with the commission of an assault and battery, as well as of a riot, may be convicted of the former and acquitted of the latter.</p>

<p>An oral agreement to execute and deliver a writing obligatory to convey real estate, upon the terms and conditions therein mentioned, is within the fourth clause of the statute of frauds.</p> <p>If the defendant would taire advantage of that statute, in an action for the breach of such an agreement, he must do so by some proper plea.</p> <p>The plaintiff conveyed her farm to one AY., receiving hack a writing obligatory to reconvey upon the conditions therein specified, which obligation she assigned to the defendant in consideration of Ms oral agreement to redeem and take a deed of the farm from AY., and then execute and deliver her a similar writing to reconvey to her whenever, within three years, she should pay him whatever should be reasonably due for services and expenditures. The defendant redeemed and took a deed of the farm from AY., but refused to execute and deliver said obligation, and conveyed away the farm to D. In assumpsit, for breach of the agreement, — Held, that, under the general issue, the damages were the actual value of the farm, after deducting the amount actually paid by the defendant to redeem, and such other sums paid out and for services rendered by him at her request, as she had agreed to allow.</p> <p>The bill of exceptions must show upon what ground a request for an instruction to the jury, that the action on trial cannot be maintained, was ’ based, in order to render the refusal exceptionable.</p> <p>A defect as to the time and place, at and to which a writ is made returnable, may be amended on motion, after a general appearance by the defendant and the expiration of the time for filing pleas in abatement.</p>

<p>By virtue of the Public Acts of tlie third session of the Thirty-seventh Congress. c. 4, § 5, a poor debtor’s bond, executed Peb. 9, 1863, without being stamped, may be used in evidence in an action upon it, provided it be duly stamped in presence of the Court.</p> <p>So, by virtue of the Public Acts of the first session of the Thirty-eightli Congress, c. 173, § 163,* a magistrate’s certificate of the administration of the poor debtor’s oath, dated Aug. 8, 1863, maybe given in evidence in defence of such action, provided it be duly stamped in presence of the Court.</p> <p>An officer may serve a citation upon the creditor, and, upon the latter’s neglect or unreasonable refusal, the former may appoint one of the justices to hear the disclosure of the debtor, although such officer be one of the sureties in such debtor’s bond.</p>

Bill in Equity, by the receivers of the Shipbuilders’ Bank, against certain persons alleged to be stockholders therein. The case has been before the Court on demurrer. See 50 Maine, 271. The case was heard on bill, answer and proofs. On Dec. 28, 1854, Thomas Jewett and James Hovey, Bank Commissioners, complained to Bice, J., in vacation, that the Shipbuilders’ Bank was insolvent, and prayed for a temporary injunction and the appointment of a time and place for a hearing.

On Exceptions. There was also a motion to set aside the verdict as against evidence, but no question of law was raised in connection with it.

Assumpsit by the owners of a schooner against its master for certain alleged earnings. The defendant produced a release from one of the plaintiffs — his brother. All the plaintiffs, excepting the brother, alleged that the release was given collusively to defraud them.

<p>After making certain specific "bequests, the will proceeds as follows : — “I give and bequeath all my property, which shall remain, to the sons and daughters of my brothers William, Mark, John, George and Horatio, equally, and to the heirs of their bodies respectively; and, in case of the failure of the heirs of the body of any or either of them, it is my wish that the share of such deceased one, without issue, should be divided among those who shall survive, and the heirs of their bodies respectively, share and share alike.” In an action by one of the children of a daughter of the testator’s brother Mark, to recover a distributive share under the will; — Held, 1. That the gift to “ the heirs of the body” of the “ sons and daughters” of the testator’s brothers, was original and independent, and not sub-stitutionary; and . ,</p> <p>2, That the children of a nephew or niece, who was dead at the date of the will, are collectively entitled to a share in the residuary estate in like manner as the nephews and nieces themselves, or the heirs of the bodies of those who may have died since the will was made.</p>

On Report. Assumpsit by Rowena Longfellow, Emma D. Smith, Amanda L. Longfellow, Arethusa B. Longfellow, Rowena H. Longfellow, Eliza G. Longfellow, Jacob Longfellow and Henry A. Longfellow, widow and all the surviving children and heirs at law of Daniel Longfellow, deceased, against the defendant, for the use and occupation of certain laud, from April.1, 1856, to September 18, 1862.

<p>On Facts Agreed.</p> <p>Assumpsit, to recover certain sums of money, under Special Laws of 1860, c. 422, § 2.</p>

Ok Keport. Assumpsit, for supplies furnished by the plaintiffs to a pauper, who, at the time of the passage of c. 226 of the Special Laws of 1863, was residing on the territory set off from Frankfort to Monroe, and there supported as a pauper by the defendants. The only question was the construction of § 3, of said chapter 226. The full Court were to render judgment upon nonsuit or default, as the rights of the parties required.

ON ExcbptioNS from Nisi Prius, DickersoN, J., presiding. Case, for damages caused by a fire, kindled upon the defendant’s land, for the purposes of husbandry, which spread upon the plaintiff’s woodland.

On Pacts Agreed. Trover, for twenty-three-sixtieths of the specific materials of a marine railway formerly built on land, twenty-three-sixtieths of which belonged to one J. P. Plardy, and the remainder to Theophilus Cushing and others. The plaintiffs attached and levied upon Hardy’s interest in the real estate, including the railway and its appurtenances. The several owners of the land built their respective proportions of the railway.

On Exceptions from Nisi Prius, Cutting, J,, presiding. Trespass. The plaintiff and defendant occupied lands adjoining, and, as the plaintiff contended, separated by a fence on the true line, which the defendant removed. The removal of the fence was the cause of this action.

On Report. Writ oe Entry. It appeared that the house was built about the year 1833, and the brick stable, ten feet of which was within the limits of Bridge street, a few years later; that, whilst Samuel Farrar lived there, he used the southerly side of Bridge street as a passage way to the rear of his buildings; that there was a stone monument still standing at north corner of Bridge and Court streets, and an old fence extending down near the middle of Bridge street, a short…

<p>Where a bequest is made subject to a condition precedent, and n'o time is fixed for the performance of the condition, and its performance is wholly dependent on the will of the grantee, the law gives a reasonable time to perform it.</p> <p>What is an unreasonable time.</p> <p>Effect of It. S., c. 74, § 17, limiting the time of performing a condition precedent in case of bequests, ux>on a will probated before such statute went into operation.</p> <p>Where a. trust is ineffectually declared, or fails, or becomes incapable of taking effect, the party taking it shall be deemed a trustee for other trusts in the will, or for those who are to take under the dispositions of law.</p> <p>When a bequest of personal proparty becomes ineffectual for any cause, residuary legatees take it by virtue of the residuary clause.</p> <p>The common law distinction between a lapsed devise and a lapsed legacy, has been abolished by JR.. S. of 1841, c. 92, § 13, (R. S., c. 74, § o,) by which a devise wall pass subsequently acquired real estate.</p> <p>Contingent interests, not previously devised, will go by a general residuary clause to the residuary devisee, unless the will contains special indications of a contrary intention on the part of the testator.</p> <p>Stat. 43 Eliz., c. 4, relating to charitable gifts and uses, is a part of the common law of this State.</p> <p>Notwithstanding a trust for charitable uses may be somewhat vague and indefinite, a court of equity may enforce its execution.</p> <p>When a bequest is to relations, the next of kin are entitled to the bequest, unless, from its nature, or the testator having authorized a power of selection, a different construction is allowed.</p> <p>When a fund is bequeathed to executors or trustees upon trust, to distribute among the testator’s relations, or apply to any other specific purpose, in such manner as they may think fit, the executors or trustees, if willing to execute the trust, will not, on a bill being filed for carrying the trusts into execution, bo deprived of their discretionary power, but they may propose a scheme before the master for the approbation of the Court.</p> <p>It ma.y well be presumed to be in accordance with the intentions of a testator that, in the distribution of his estate, his “ deserving relations” should be preferred to “ indigent persons” not of kin.</p> <p>Where the testator had given a deed of land, with restrictions, to a certain son, and, by will, had removed the restrictions, adding “ said farm is given to Mm in full for Ms share of my estateand certain devises had lapsed and gone, by a general residuary clause, to certain trustees named, to he distributed among the testator’s “ deserving relations, in such manner as the trustees may tMnk proper,” — such son may become the object of Ms father’s bounty within the discretion vested in such trustees.</p> <p>Reasonable costs and charges may be allowed to both parties to a bill in equity, brought to obtain a construction of a will.</p>

On Report. Writ op Entry to recover a piece of land alleged to have been set off on an execution in favor of the plaintiff against the defendant.

ON Kepoet. Assumpsit on account annexed, for §60, for money paid by the plaintiff to the defendant, for logs and down timber, the title to which, the plaintiff alleged, was not in the defendant at the time of sale. The writ also contained a count for money had and received for same amount.

On Exceptions from Nisi Prius, D-aneorth, J., presiding. Teustee Process. The plaintiff, both of the defendants, and Benjamin -Harris, one of the alleged trustees, were described in the wrijj as residents in certain towns in Aroostook county, whyjfl ■the writ was made returnable, and Samuel H. Dalo,’flH -other trustee, was described as of Bangor, in the county •of Penobscot.” The residences of all the parties were thus -truly described.

On Exceptions, by the defendant, to the ruling of Cut- ' ting, J., and on motion to set aside the verdict as against evidence. Real Action. The facts are sufficiently stated in the opinion. The following is a. diagram, taken from Burleigh’s plan of the premises.

In 1842, William Woodbury was appointed and qualified as guardian of the defendant, who lived in his family until she attained her majority. The guardian duly gave bond for the faithful performance of his duties, and also a bond to account for the sale of the real estate of his ward, the appellant being one of the sureties in each.

ON Facts Agreed. Assumpsit, commenced during his lifetime, against John M. Wood, (now deceased, and upon whose estate the defendant is administrator,) for labor done and performed, and for materials furnished by the plaintiffs for said Wood, at his request, in the erection of a hotel on Middle, Silver and Willow streets, in Portland, for which labor and materials, so performed and furnished, the plaintiffs claim and have a lien upon the said building, and to enforce which…

Writ oe Error. The error principally relied upon was : 2d. Because said declaration contains no allegation or averment that notice of said loss, aud of the destruction of the propety described in said policy by said fire, was given by the insured to said company, in accordance with the provisions of the statute of this State in such case made and provided.

ON Report. Case, to recover §111,21, money alleged to have been received by the defendant as usurious interest. The writ was dated September 16, 1865. It appeared in evidence, that the plaintiff received from the defendant the following sums of money, for which the former gave the latter six negotiable promissory notes, as follows : — Not. 11, 1862, cash $200, note $208,60, payable in two months without int.

On PACTS AGREED. Trespass de bonis asportatis for sundry curbstones.

Libel eor Divorce. The only question was as to the jurisdiction of the cause. Cohabitation” does not include the idea of residence” or domicil,” in their legal acceptation, but means living together as husband and wife.” Webster’s Diet. It expresses the relation of the parties to each other. They may cohabit in a place without residing there. These parties lived together in this State as husband and wife.” Sexual intercourse is not an essential element in cohabitation.

On Report. Assumpsit to recover a town bounty for enlistment into the service of the United States, April 12, 1865. The town, at a regular meeting, among other things, chose an agent to fill the quota, and fully empowered him to make contracts with any and all persons for the purpose of filling the quota, and to procure men to be credited on said quota,” &c. The remaining essential facts appear in the opinion.

<p>Where it is necessary to determine the date of a promissory note in suit, and offered in evidence, and the name of the month is so inartifieially written that, upon inspection, the presiding Judge cannot determine whether it should he read June or January, extraneous evidence is admissible to show the true date.</p> <p>And the question is a proper one to he submitted to a jury.</p>

ON EXCEPTIONS. Case, for damages for an alleged unjustifiable delay in the transportation of flour. The defendants filed a general demurrer at the first term, which the presiding Judge sustained, and the plaintiff's alleged exceptions. , No briefs came into the hands of the Reporter.

On Exceptions. Case, to recover damages for alleged unjustifiable delay in the transportation of flour.

<p>On Exceptions.</p> <p>cited R. S., c. 81, § 18.</p>

INDICTMENTS, one charging the defendant with being a common seller of intoxicating liquors,” &c., and the other with keeping and maintaining a nuisance by reason of the illegal keeping and sale of intoxicating liquor, &c. The defendant was brought in upon a capias, when he pleaded not guilty.

On Report. Writ oe Entry. Both parties claim under one Kelley, — the plaintiff by virtue of a levy made July, 1856, and duly recorded, and the defendant by a deed of warranty, made, executed and recorded subsequent to the record of the levy. The judgment, upon which the levy was based, was recovered April, 1856, and was for $72,92 debt, $17,73 cost, making in all, $90,65.

<p>ON Report.</p> <p>Debt on a poor debtor’s bond, dated May 25, 1865, given by the defendant York, to procure his release from arrest, supon an execution issued upon 9 judgment duly recovered. Within the time mentioned in the bond, York applied under R. S., c. 113, § 23, to Enoch Foster, ,Tr., a justice of the peace and quorum within and for the county of Oxford, (where the arrest was made,) who duly appointed a time and place for the examination of York, and issued a citation to the creditor, which was duly served. At the time and place appointed in the citation, York appeared and selected the said Foster, who, it was admitted, was a disinterested justice of the peace and quorum as aforesaid, ” except so far as the fact that he issued the citation, and is counsel in this action, may render him interested.” The creditor appeared by his counsel, selected a justice, and filed a written protest against the said Foster’s acting in the premises, because he issued the citation.</p> <p>The disclosure was perfected, the oath prescribed in § 28 administered, and the certificate provided for in § 31 was duly made and delivered to the said York, within the six months mentioned in the bond. The bond was admitted to be a statute bond. It also appeared that the same justice was counsel for the defendants in this action.</p> <p>The full Court were to render such judgment as the legal rights of the parties entitled them to.</p> <p>The bond being a statute bond, a strict compliance with the statute Is essential.</p> <p>The Court, before which the debtor disclosed, was not " disinterested” and legally competent as required by R. S., c. 113, § 25. Objection was seasonably filed. Foster was legally incompetent under R. S., c. 83, § 22. Proceedings had under R. S., c. 113, constitute "civil proceedings;” and the issuing of a citation is a " commencement of a civil action,” a "civil action” being a "legal demand of one’s rights.”</p> <p>The case of Lovering v. Lamson, 50 Maine, 334, relates particularly to the point of disinterestedness, and does not settle the question of abatement provided in c. 83.</p> <p>■The Legislature had in view the fact that a justice commencing.an action would be interested, and they, by force of c. 83, § 22, intended that any interest of that kind should operate as a disqualification. He is interested in sustaining papers drawn by him.</p> <p>The first act of the justices of a poor debtor’s court is to pass upon the sufficiency of the citation.</p> <p>Lovering v. Lamson came before the Court upon exceptions, this case on report. The Court has the " power” desired in the former.</p>

ON EXCEPTIONS. Case, for publishing a libel against the plaintiff.

<p>Parol evidence is inadmissible to prove that an award, upon which a judgment was rendered, was founded upon matters not presented by the pleadings.</p> <p>The parties exchanged horses, and agreed that, if the horse which the defendant let the plaintiff have, did not recover of his lameness within six months, defendant should pay plaintiff ten dollars. Subsequently the plaintiff brought an action against the defendant for deceit, which was referred, and a judgment for ten dollars damages rendered upon the awar d. The horse did not recover, and this suit was brought to recover the boot money, —• Held, that the defendant could not be allowed to prove by one of the referees that their award was for the boot money.</p>

<p>On Exceptions.</p> <p>The writ described the defendant as of Sparta, in the State of Wisconsin, and real and personal estate were attached upon it in this county.</p> <p>Notice was ordered and complied with, and, at the second term, the defendant appeared personally and by counsel, and, upon trial, the plaintiffs became nonsuited.</p> <p>The defendant made affidavit that his place of residence was seventeen hundred miles from the place of trial, and that he came to this county for the sole purpose of attending to this suit.</p> <p>He claimed costs for actual travel, which the clerk allowed. From this. taxation the plaintiffs appealed, and the presiding Judge sustained, pro forma, the decision of the clerk, and the plaintiffs alleged exceptions.</p> <p>cited</p> <p>R. S., c. 116, § 14; Mass. R. S., c. 156, § 27; White v. Judd, 1 Met., 293; Melvin v. Whiting, 13 Pick., 184.</p>

<p>A waiver of demand and notice may be proved by parol, or may be inferred from acts and circumstances, in an action against the indorser of a negotiable promissory note.</p> <p>Defendant, ai>j>lying to the plaintiff for a loan of money, was informed by the latter that, if he would get, and indorse in blank, defendant’s brother’s note, and give his word upon honor that, if his brother did not pay it he would, he -would loan him the money. Defendant replied that he was willing to give his word, and that he expected to be holden, if he got the money ; adding, that he desired the plaintiff to wait as long as lie could for his pay, and, if his brother did not pay, he (defendant) would. In an action • upon such a note, given the next day; — -Held, that there was a waiver of demand and notice.</p>

Bill IN Equity. The bill substantially charges that the complainants are owners of certain mills for manufacturing purposes, and of certain water rights in the Androscoggin river, therewith connected for the operation of the same, subject, however, to certain limitations, conditions and restrictions contained in the several deeds under which they claim; that the respondents are part owners of the water and privileges of said river, the same having been conveyed to them long…

Bill IN Equity. The case was heard on bill, answer and proofs.

<p>The second clause of § 6, of art. 1, of the constitution of this State requires simply, that all the elements of, or acts necessary to, the crime charged in an indictment, shall be fully and clearly set out.</p> <p>An indictment for murder need not set out the “ manner in which and the moans by -which” the killing was perpetrated.</p> <p>An indictment, alleging that the accused, on a day, and at a placo named, in and upon the body of a person named, “ feloniously, wilfully and of his malice aforethought, did make an assault, and her, the said” person named, “ then and there feloniously and of his malice aforethought, did kill and murder,” &c., will sustain a verdict of guilty of murder in the first degree under the statutes of this State.</p>

<p>‘The object of the statute, requiring specifications, is, that notice may be giren of the nature and demand of the claim on which the action is based.</p> <p>The specifications will not be held insufficient as against a subsequent purchaser where a judgment has been regularly obtained, unless it appears certain that no judgment could be legally giren on the money counts for the causes or claims stated in the specifications.</p> <p>An attachment of real estate, made on a writ specifying that “ the claims intended to be proved under the foregoing money counts, are money obtained of plaintiffs by defendant, on notes” specifically described, may be valid as against a subsequent purchaser, although neither of the notes mentioned was due at the time the writ issued.</p>

<p>If a debtor, having funds’ in the hands of his agent, verbally orders him to pay a creditor,- and the agent promises to execute the order, and the creditor accepts and relies upon the agent’s promise, the debtor’s power to control so much of -the funds as is-necessary to redeem such promise is gone.</p> <p>In such case, the agent’s promise becomes an original undertaking, and the funds in his hands are a sufficient-consideration for his engagement.</p>

<p>If an attempted attachment of real estate he void, but the succeeding" levy valid, the creditor’s title will, in the absence of intervening claims, take date from the time of the levy;, and the officer’s reference to the attachment, in his return upon the execution, will not affect the validity of the levy.</p> <p>The title of a tenant in a real action cannot he affected by “ aetual notice” of a prior unregistered deed, on the part of any of his predecessors in title, if the former he an innocent purchaser for value, without actual notice of said deed.</p> <p>When the term “fee simple” is used in the appraisers’ certificate as descriptive of the nature of the debtor’s estate appraised by them, it means that the estate was owned by the debtor “ in severalty,” and that it was an estate “ in possessionand is a sufficient compliance in this particular with R. S., c. 76, § 3.</p> <p>In the absence of satisfactory proof to the contrary, the Court sitting in banc will presume that the officer and appraisers making a levy made their return upon the “hack of the execution.” The mere fact that copies produced are not thus made, is not satisfactory, especially when they speak of the “within named creditor” and of “this execution.”</p>

On Exceptions from Nisi Prius. Appeal from the judgment of a trial justice. After being opened to the jury, the action was, on motion of the plain tiff, dismissed from this Court, because the recognizance contained a condition unauthorized by the statute. Whereupon, the plaintiff claimed costs accrued here for the travel and attendance of his witnesses, which the presiding Judge disallowed, and the plaintiff alleged exceptions. 1. The case shows no error.

<p>On Repoiít.</p> <p>Assumpsit against the defendant as' indorser of a promissory note. The plaintiffs introduced note and protest. Thereupon the defendant introduced the petition for an injunction upon the plaintiff bank, dated Sept. 6, 1865 ; the injunction, dated Sept. 12, 1865; the stockholders’ vote to surrender their charter, dated Dec. 26, 1864; copy of the certificate of surrender, filed with the Secretary of State Jan. 5, 1865 ; and the Boston Advertiser, containing notice of the surrender.</p> <p>Plaintiffs then put in the appointment of l’eceivers, dated Sept. 1865 ; an application by the receivers, dated March, 1866, for an extension of time for converting the assets of the bank and making their final report; and an order extending the time one year from Sept. 12, 1866.</p> <p>II. K. Baker, called by the plaintiffs, testified that he was one of the receivers of the American Bank, and that this suit is prosecuted by the receivers for the benefit of the bank. It was admitted that the receivers were not sworn. The Court to enter such judgment as the law and evidence required.</p> <p>A corporation’s right to sue and be sued ceases when the corporate rights are extinguished by repeal of their charter or otherwise. Orease v. Babcock, 23 Pick., 334; Read v. Frankfort Bank, 23 Maine, 318; Whitman v. Cox, 26 Maine, 335.</p> <p>Plaintiffs’ power ceased when its liabilities ceased, which was two years from the time certificate of surrender was •filed with Secretary of State, i. e. Jan. 5, 1867.</p> <p>The injunction could in no sense prevent the operative force of the surrender. Surrender of a charter is a statute mode of repealing it.</p> <p>The legislative extension of time excepts " such as were in the hands of receivers.”</p> <p>The receivers should have been sworn. Laws of 1858, c. 24; R. S., c. 2, § 46 ; Const., Art. 9, § 1; 3 Greenl., 872. Spec. Laws of 1866, c. 37, does not affect the exception mentioned in the Act of 1863.</p>

ON Exceptions. Indictment, alleging that Charles H. Dearborn of Winthrop, in said county of Kennebec, on the twelfth day of October in the year of our Lord one thousand eight hundred and sixty-six, with force and arms, at Readfiold, in the county of Kennebec aforesaid, in and upon the body of one Josephus Stevens, the said Stevens being then and there a deputy sheriff within and for said county of Kennebec, legally authorized and duly qualified to discharge and perform the…

ON EXCEPTIONS from JSRsi JPrius. Trover for tho value of numerous articles of household furniture and dress, including a brass fire-set belonging to the plaintiff and borrowed of her by the defendant’s former wife in her lifetime.

<p>On Report from Nisi Prius,</p> <p>Replevin. Flea non cepit, with specifications of defence.</p> <p>The defendant testified, that he was never agent of the Eastern Express Company, but was in the employment of one Williams, who was depot master and express agent at Monmouth. When bills were forwarded with goods the instructions were to collect on delivery, and he had no other authority to deliver goods. Told the plaintiff he could not deliver her trunks and chest until the full bill of §41,25 was paid. She demanded the goods of him at the depot, in the Eastern Express Company’s office, where they were deposited, after having tendered him §18,50. Williams was commissioner of enrollment, spent his time at Augusta in summer of 1864, and defendant acted for him in his absence; acted for Williams from June, 1863, till October following; then absent two months ; resumed in Jan., 1864, and continued till July, 1865. No other agent from Jan., 1864, to Nov., 1864. When goods came by express, the defendant received them, and had the custody and control of them until they were delivered.</p> <p>The sum of $41,25 claimed, was made, up of $13, as freight by Turner’s Express, $5,50 as freight by the Eastern Express Company, and sundry other charges for storage, cartage, &c., making the balance. There was testimony tending to show that the plaintiff agreed that the company should retain a lien upon her goods for the other items, but this was denied by the plaintiff.</p> <p>The remaining facts, so far as they are essential to an understanding of the law herein settled, are stated in 'the opinion.</p> <p>The defendant exercised no act of ownership, nor any act tending to show a claim of ownership in himself which can be construed into a conversion. He had no such possession as would enable him to intermeddle only upon-the condition that the owner should first pay the whole bills which were forwarded with the property. Otherwise, intermeddling would have rendered him liable to the Express Company. The office in which the property was deposited was not the defendant’s, but the company’s. He was not authorized to accept less than the whole bill, although the whole bill may not have been due. If the amount claimed was not paid, his duty was to keep the property in the custody of the company until the plaintiff’ adjusted the matter with the company. Such detention is no act of ownership on his part, neither shows any intention of conversion. 2 Hilliard on Torts, c. 25, § 9.</p> <p>If the action is maintainable against any one, it is against the Express Company alone, which had actual possession through the defendant as servant. The defendant had the mere care of the property while in the actual possession of the company. Even if he was a depositary of the property, the action is not maintainable. 2 Hilliard on Torts, 583, and the cases cited in the note ; Miller v. Blake, 21 Pick., 318. Defendant did not prevent plaintiff from taking the goods from the possession of the company ; he merely told her he could not deliver except upon payment of the amount claimed. He did not touch the goods, but merely declined to do what he was forbidden to do by the company, which is not conversion. Band v. Bargeanl, 23 Maine, 326. Neither trover nor replevin can be maintained against defendant, because he never had personal possession.</p> <p>Absolute refusal to deliver goods is not always evidence of conversion, as where a servant having the custody of goods, apparently his master’s, refuses to deliver them without an order from his master. 2 Grcoul. on Ev., 526. Servant’s possession or detention is that of his master. His care of the goods is in effect like the possession of a railroad station agent of the moneys and other property in his hands. Eor the same reasons this action cannot be maintained. Pettingill v. And. R. R. Go., 51 Maine, 370. Counsel also cited 1 Hilliard on Torts, 593 ; Matterman v. Bently, 13 Barbour, 641; Fernald v. Chase, 37 Maine, 289. '</p>

<p>A plea in abatement, alleging tlio non-joinder of the complainants’ co-executors in a bill in equity, brought against a residuary legatee, avowedly to compel him to make an election under the will, is bad, unless it aver that the persons named as co-executors in the plea have given the bond required by the E. S., c. G4, § 5.*</p> <p>Election defined.</p> <p>Where such a bill alleges that the respondent is, by the will, made a residuary legatee and devisee of the estate, and that, by said will, the testator directs that the resx>ondent “have no portion of the estate until he has fairly accounted for and settled the amount charged against him on my (testator’s) books, for money advanced by me for him, with interest thereon;” and it then sets forth specifically the items of debit and credit as they appear on the testator’s books containing the memorandum — “ the balance, if not settled for, to come out or affect liis part of my estate, with all the interest;”— Meld, on demurrer, that the bill is really one of inquiry, only, to ascertain whether a legatee or devisee will or will not accept a legacy or devise, — and not one to compel an election; and is not maintainable.</p> <p>An executor, though qualified as such by the laws of another State, has no authority by reason of such qualification to act as such in this.</p>

On Exceptions. Trespass to recover damages to plaintiff’s horse and wagon. It appeared that the plaintiff started with his brother to drive two heifers, from his stable, in Waterville, to another town. As they were passing defendant’s premises, leading plaintiff’s horse attached to his wagon, and driving the heifers, one of the latter turned and ran back.

<p>The validity of a levy having been once tried and determined by a court of competent jurisdiction, the unreversed judgment thereon is conclusive between the parties and their privies.</p> <p>Where a mortgage of real estate was given to secure' the fulfilment of a bond of defeasance, conditioned for the support and maintenance of the mortgagee, and the mortgager’s assignee in possession paid and satisfied, within the time limited therein, a conditional judgment rendered upon such mortgage: — Held,</p> <p>1. That the bond and mortgage were thereby completely satisfied;</p> <p>2. That no action could thereafterwards be maintained upon either;</p> <p>3. That such payment was equivalent to a redemption;</p> <p>4. That the legal title thereby became vested in such mortgager’s assignee, leaving no equitable rights to be adjusted between the parties ; and,</p> <p>5. That he could maintain a writ of entry against the assignee of the mortgagee in possession.</p>

On Beport. Assumpsit for the recovery of liquidated damages arising from the non-performance of the defendant’s agreement to put teams upon the plaintiff’s land and carry on a lumbering operation thereon, and pay an agreed amount for stumpage. The writ is dated Jan. 6, 1865. The plaintiff introduced the permit or contract signed by the parties, dated Oct. 10, 1860.

<p>On Facts Agreed.</p>

On Exceptions. Verdicts of a jury summoned to assess damages sustained by the plaintiffs, by the location of a town way in the city of Gardiner. The proceedings were under R. S., c. 18, § 12, as amended by c. 39* of the Public Laws of 1866. Numerous objections' were urged by the respondents against the verdicts, but the presiding Judge overruled the several points taken, and confirmed the verdicts, and the respondents alleged exceptions.

<p>In trover by the rightful administrator of an intestate’s estate to recover the value of the goods and effects of the estate taken by an executor de son tort, the defendant cannot file an account in set-off for the intestate’s debts, paid by him since the decease.</p> <p>But,.by virtue of R. S., c. 64, § 32, he may “retain” whatever sums actually paid him, which, if withdrawn from his hands, the rightful administrator or executor would be compelled to pay.</p>

On Retort. Case against the defendant, as sheriff of the comity of Lincoln, for the default of his deputy, in not keeping property attached, so that it might be seized and sold on execution.

On Report. Case, for building a dam across the Sebasticook river, in the town of Benton, whereby the plaintiff alleged he was prevented from floating his logs to market.

On Pacts agreed. Assumpsit by a town, in which a poor debtor in jail on execution had his legal settlement, against the creditor, at whose suit the debtor was committed, to recover for the board of the debtor during his confinement. The writ originally contained a count of indebitatus assump-sit on an account annexed, and another for money paid by the plaintiffs for the use of the defendant, at his request.

<p>On Exceptions from Nisi Prius.</p> <p>The material facts appear in the opinion.</p> <p>The law will not appropriate independent claims in payment of each other. Nason v. McCulloch, 31 Maine, 158. To allow plaintiff to file and prove his account against defendant, in order to rebut defendant’s evidence that plaintiff agreed to allow defendant's account in payment of the note declared on, would admit evidence too i’emote. The most that could be said of it would be, that it might tend to show that it was not for plaintiff’s interest so to agree. Parties are judges of their interests and of their inducements to make agreements. Hilton v. Scarborough, 5 Gray, 422; Aldrich v. Pelham, 1 Gray, 510; 1 Greenl. on Ev., §§ 52, 448; Low v. Worcester, 3 Pick., 462; Ellis v. Short, 21 Pick., 142; 1 Starkie on Ev., 40.</p>

ON EXCEPTIONS. PETITION, under R. S., c. 63, §§ 19 & 21, by-the heirs of Joseph Foster, for leave to enter and prosecute an appeal from a decree of the Judge of Probate for the county of Sagadahoc, accepting the report of commissioners appointed Tinder c. 115 of tire Public Laws of 1859, allowing a claim against the estate of said Poster, under administration.

ON Exceptions. Indictment for being a common seller of intoxicating liquors. Respondent put in his license to sell. Plea not guilty. The jury found a general verdict of guilty, and specially that the ale and whiskey sold by the respondent were manufactured in the United States, and that the U. S. revenue tax had been paid on them.” The presiding Judge held that the license and payment of the revenue tax constituted no defence, and the defendant alleged exceptions.

<p>ON Exceptions.</p> <p>Bill in Equity inserted in a trustee process, in which several persons therein named were summoned to answer as being trustees of the principal defendants.</p> <p>On the eighth day of the second term, the principal defendants, by their attorney, appeared and filed a written motion praying that the "bill be dismissed as to said trustees,” or "that said trustees be discharged from said process,” for the reasons therein set forth. The presiding Judge inquired of the moving counsel if he appeared as the attorney of the alleged trustees. He answered, that he had no authority from the alleged trustees themselves to answer for them. Whereupon the presiding Judge ruled, as matter of law, that the motion could not be entertained.</p> <p>It appearing that one 'of the alleged trustees had appeared and filed his disclosure, disclosing his indebtedness to the principal defendants severally, in several sums, amounting to more than $6000, without asking to be discharged, or making any defence, the same counsel moved that said alleged trustee be discharged on his disclosure, which motion the presiding Judge declined to entertain for the same reason.</p> <p>It appeared thatE. Wilson, a counsellor of this county, had appeared for the alleged trustee and filed his disclosure, but was not present when the above motion was made.</p> <p>The defendants excepted.</p>

On Exceptions. Assumpsit upon a policy of insurance against fire. A few years prior to March, 1860, school districts numbered three and six, in Dresden, united under the statute and formed the plaintiff district, when it became designated as school district number six.

On Report. Assumpsit for supplies, medical assistance, nursing, &c., furnished to James H. Erskine and his wife and child, and burial expenses of Erskine and child. On December 31, 1863, Erskine, being then an inhabitant of and having his legal settlement in the defendant town, reenlisted in the U. S. service.

Bill in Equity by the widow of the late Nathaniel Gil-man, against the executors of his last will and testament, alleging substantially, — That, as such executors, the respondents returned an inventory of such property belonging to the estate of the testator as was found within this State; that, among such property was a promissory note [described] ; that the respondents, as such executors, commenced a suit upon this note in the county of Kennebec, recovered judgment…

On Exceptions to the ruling of Walton, J., charging the alleged trustee upon the following disclosure : — Answer. Said Company held against me, at time of the service of the writ upon me, a premium note, of which the annexed is a true copy.

<p>The statutes of this State, as they existed in 1866 and 1866, taken in connection with the Act of Congress of Juno 3, 1864, c. 106, §§ 40 and 41, did not authorize the assessors of a city or town, in which a National Bank was located, to assess taxes for State, county and municipal purposes, upon the stocks of such bank owned by non-residents.</p>

<p>Replevin is maintainable only against a person having possession or control of the chattels to be replevied.</p> <p>Sayward y. Warren, 27 Maine, 453.^ overruled.</p>

<p>In 1859, the plaintiff and son, residing in one family, gave their joint and several note for a wagon, which was to remain the property of the former until the note was paid by the son. The wagon was used by the family until August, 1862, when the son took the wagon by force, and sold it to the defendant. In July and Dec., 1862, the plaintiff and son passed mutual receipts “in full of all indebtedness.” It was in evidence that the parties to the latter receipt expressly agreed that the matters in relation to the wagon were not included in the receipt. In replevin for the wagon: — Held, that the presiding Judge properly declined to instruct the jury that, if the father was to hold title to the wagon as security for signing the note till paid for l>y the son, and signed as surety and afterwards gave the receipt of July, 1862, such receipt, if uncontradicted, would be a discharge of the sums so paid and the plaintiff would no longer be entitled to hold the wagon.</p>

ON EXCEPTIONS. Tit over by the mortgager against the mortgagee for a maro and three cows. Writ dated Oct. 16, 1864. The plaintiff introduced a mortgage from himself to the defendant, covering the mare aud two of the cows sued for, dated April 24, 1860, given to secure a note for s$300, payable in seven mouths, on the back of which were two in-dorsements; the latter bearing date January 16, 1862.

<p>Exceptions do not lie to the refusal of the presiding Judge to quash an indictment</p> <p>Section 32, c. 33 of the Public Lairs of 1858, providing that “ whenever an unlawful sale” of intoxicating liquor “is alleged, and a delivery proved, it shall not bo necessary to prove a payment, but such delivery shall be sufficient evidence of sale,” is constitutional.</p>

On Exceptions. The facts appear in the opinion. The principal question was whether the Judge of the Police Court of Bangor had jurisdiction to decree intoxicating liquors forfeited to the city of which he was an inhabitant, that being the place in which they were seized. The police judge, being a resident of Bangor, was directly interested in the result of the trial. Such interest disqualified him from trying the case.

ON Exceptions. Indictment fob Larceny. Defendant seasonably filed a plea in abatement, alleging that his name was David D. Dresser, and not David Dresser, and that be has never been called or known as well by the. latter as by the former. To this plea, the attorney for the State replied, that the defendant was known as well by the one name as the other. Thereupon the issue was submitted- to the jury.