Volume 55 — Maine Reports

<p>The defendant town, at a legal meeting held in August, 1864, voted,— “to raise $300, to each volunteer,” and in addition “ to pay such volunteer $16 per month,” specifying the time of service essential to entitle the volunteer to such “bounty and pay, to be one year.” In an action by one who volunteered upon the defendants’ quota for one year and served until honorably discharged at the close of the rebellion; Held, —</p> <p>1. That this vote was a promise to pay such volunteer the sums named;</p> <p>2. That such volunteer was entitled to the full amount, although he served but nine months, he having been discharged by act of the government, before the year expired; and</p> <p>3. That the vote was ratified and made valid by c. 298* of the Public Laws of 1865, notwithstanding that, when passed, it was expressly prohibited by c. 227* of the Public Laws of 1864.</p> <p>The Legislature has power to confer the authority upon towns to offer or pay bounties, and to ratify votes offering bounties by .subsequent enactment.</p>

<p>Bill in Equity.</p>

<p>On Exceptions.</p> <p>Libel for Divorce for impotence and insanity.</p>

On Exceptions. Case for malicious suit. After introducing original writ, Young v. Morton, .returnable before a trial justice in this county, G. S. Bean, called by the plaintiff, testified, substantially, that, as deputy sheriff, he arrested the plaintiff by virtue of the writ here introduced, Eeb. 20, 1865, about one o’clock, p. m., and kept him under arrest until nearly evening, when the plaintiff paid $15, alleging at the same time that he owed the defendant nothing, but…

<p>On Report.</p> <p>Scire Facias brought under R. S., c. 76, § 18, requiring the defendant "to show cause why an alias execution should not be issued on” a judgment in favor of the plaintiff against the defendant, recovered before the S. J. Court for this county, at the January term, 1864. On Feb. 20, 1864, the first execution was levied upon a lot of land owned by the defendant and was returned by the officer as satisfied in full. The execution, together with the return thereon, was duly recorded within the time prescribed by the statute.</p> <p>The plaintiff introduced a mortgage of the same premises levied on, from the defendant to one Shaw, dated Dec. 1, 1855, and recorded same month, together with evidence tending to show that the sum due on the mortgage was greater than the value of the land at the time of the levy, and that the plaintiff had no actual knowledge of the existence of the mortgage until a year after the levy. It also appeared that the mortgage was never foreclosed, but that possession under the same had been taken by the mortgagee, or one claiming under him.</p> <p>The case was withdrawn from the jury and reported to the full Court, who were to render judgment according to the legal rights of the parties.</p> <p>A creditor may waive his levy when the estate taken was not the debtor’s property or it could not be holden by the levy. B. S., c. 76, § 18. In the case at bar, the debtor owned the land, though under mortgage.</p> <p>The mortgager is considered thé owner against every body except the mortgagee until actual entry under the mortgage. Goodwin v. Richardson, 11 Mass., 473. "Actual entry” evidently means entry to foreclose. As between debtor and creditor, the land was the property of the former when levied upon ; and, by B. S., c. 76, § 27, the creditor had the right to make his levy by appraisement whether the existence of the mortgage was known or unknown to the creditor at the time of the levy. Brown v. Clifford, 38 Maine, 212.</p> <p>The creditor cannot be evicted, if he choose to protect it by redemption. The fact that he may have to pay the full value of the land to redeem does not change the law. He only pays for his negligence in not examining the record previous to his levy; but can recover the amount paid for redemption of the debtor, § 27. This levy is valid, § 27; and binds both creditor and debtor.</p>

On Exceptions. The case is stated in the opinion. 1. Plaintiff was not defendant’s lessee. He was sub-teiiant without defendant’s knowledge and assent, and was never recognized as his tenant by defendant. Plaintiff paid nothing until fourteen days after he was ejected. Defendant claimed the lessee as the only responsible tenant. The suit, after eviction, cannot be construed into an assent. Taylor on Landlord and Tenant, § 497; Doe v. Meux, 2 I-Iar. Dig., 3603. 2.

On Exceptions. Assumpsit eor money had and received, to recover a balance due on a note for $2215, dated Oct. 15, 1858, signed by one Augustus W. Pratt, made payable to the order of the defendant and by him indorsed in blank.

On Exceptions. Case eor Slander. The presiding Judge overruled the defendant’s demurrer and sustained the demurrer of the plaintiff, and the defendant alleged exceptions. The remainder of the case is sufficiently stated in the opinion.

<p>Towns are not liable for injuries occasioned by such obstructions as aro necessarily created in highways in order to repair them, provided reasonable measures are taken to notify travellers of their existence.</p> <p>Such obstructions are not, in any proper sense, defects.</p> <p>What are reasonable measures.</p>

On Beport. Writ op Entry. The plaintiff claimed under a levy in his favor against the defendant, made Nov. 16, 1858, and recorded Jan. 6, 1859-. The defendant was in possession at the time of the levy and has continued in possession ever since. It was agreed that the defendant owned at the time of the levy only two-thirds undivided of the lot levied upon.

On Beport. Assumpsit for supplies furnished a pauper who was non compos mentis from her birth. The only question was as to the settlement of the pauper. The facts are sufficiently stated in the opinion. 1.

Bill in Equity brought under the Public Laws of 1864, c. 239, § 1,* by the complainants, ten taxable inhabitants” of the town of Frankfort, to enjoin the selectmen, collector and treasurer of said town from paying, or receiving in payment of taxes, certain town orders therein mentioned, drawn in pursuance of a vote of the town, to pay bounties to certain persons named.

<p>Section 1, c. 298 of the Public Laws of 1865, did not ratify the rote of a town whereby it voted to pay a bounty to drafted “ non-combatants” who were credited upon such town’s quota, but were discharged under § 17, c. 13 of Act of Congress approved Feb. 24, 1864.</p>

<p>By virtue of the constitution of the United States, Congress has the exclusive power to provide where the evidences of title of registered and enrolled vessels, in certain cases, shall be recorded.</p> <p>The State Legislature has no authority, directly or indirectly, to add to or dispense .with the requirements of section one of the Act of Congress of July 29, 1850, entitled an “Act to provide for recording the conveyances of vessels.”</p> <p>R. S., c. 91, § 1, providing for the registration of chattel mortgages, does not apply to property in vessels which are duly registered or enrolled according to the laws of the United States.</p> <p>The plaintiff, as mortgagee of one-eighth of a vessel, demanded it of the assignee of the mortgager, who refused to comply, denying title in the plaintiff and claiming title in himself. The defendant, both before and after the demand, received one-eighth of the net earnings and had paid one-eighth of the repairs. In trover, — Held,</p> <p>1. That the foregoing facts constitute a conversion.</p> <p>2. That the amount paid for repairs should not he deducted in mitigation of damages.</p>

<p>The respondent contracted in writing to convey to the complainant certain land, provided the latter should pay to the former a certain note, (dated Dec. 20, 1864, and payable in one year with interest,) “ according to its tenor and date.” On the 20th December, 1865, the complainant tendered the amount of the note to and demanded a deed of the respondent, who, without malting any objection to the tender, replied he would never deliver a deed according to the terms of the contract, but would give one with a certain reservation, if the complainant would receive it in fulfilment of the contract. In a bill in equity to compel specific performance; Held, —that the tender was waived; and whether the parties, by the language in their contract, intended the money should be payable at the end of the year or three days later, quere.</p>

On Report. Case to recover a bounty claimed to be voted by the defendants to such then as should be drafted to fill the town’s quota, under call of July, 1864.

<p>By the Public Laws of 1867, c. 130, § 1, a person convicted of selling intoxicating liquors, in violation of § 7, c. 33, of the Public Laws of 1858, shall not only be punished by fine, “but, in addition thereto, shall be imprisoned,” &c.</p> <p>Where, upon the trial of a complaint under § 1, c. 130, the plaintiff was only sentenced to pay the statute fine, he cannot, after payment thereof, recover the same from the magistrate who sentenced him, and to whom he paid it.</p>

On Report. Assumpsit for supplies furnished to certain paupers whose settlement was alleged to be in the defendant town. The only question was that of settlement. The pauper, called by the plaintiffs, testified: — I was born in Plantation No. 7, in Hancock county, in 1819, where my father was born and lived until about 14 years ago. Resided in No. 7 until eight years ago. Removed to Ellsworth in 1862, where I and family have resided ever since.

<p>On pacts agreed.</p> <p>Assumpsit against the owners of the schooner " Barnard” for the value of certain merchandize, alleged to have been shipped on board the " Barnard” and lost on a voyage from Boston to Ellsworth.</p> <p>The question was whether the owners or master were liable.</p>

<p>Where an administrator of the estate of a defendant, who died during the pendency of the suit, after having represented the estate as insolvent, has appeared in the suit as the representative of the deceased party, it is his duty to have the proceedings in insolvency made to appear upon the record in this Court, in order that the proper judgment maybe entered up.</p> <p>But, if no suggestion of the insolvency or prayer for the stay of execution be made, and a judgment be awarded against the estate of the intestate in the hands of the administrator, and execution be issued in due course, the receipter for the property attached in the original suit, cannot impeach the correctness of such judgment in an action against him upon the receipt.</p>

<p>Possession alone, although for a less terra than twenty years, is sufficient to maintain an action of trespass quare clausum against every body who has not the legal title or who has not the permission of the legal owner.</p>

On Report. Assumpsit to recover back money paid on a verbal contract for the purchase and sale of a lot of land. After the evidence was all in, the case was continued on report, the full Court to draw such inferences as a jury might, and to enter judgment by nonsuit or default as the law should require. Richardson v. Allen, 17 Maine, 296 ; Gammon v. Butler, 48 Maine, 344; Coughlin v. Knowles, 7 Met., 57; Parker v. Parker, 1 Cray, 409.

On Exceptions. Trespass for taking and converting a colt two years old in the spring before the same was taken. The defendant justified as a deputy sheriff holding an execution against the plaintiff. The plaintiff proved that, at the time of the taking, he owned neither oxen nor horses. The presiding Judge ruled that the colt was exempt from attachment, and the defendant alleged exceptions.

On Exceptions. Writ oe Entry. One Isaac Yiolette owned the demanded premises in 1846, when a writ was sued out of the clerk’s office of the Eastern District Court, in the name of James S. Sigee and John O. Bustin, for the benefit of E. W. Hathaway.” On this writ, a judgment was recovered in September, 1846, and, in January, 1847, an execution issued declaring that, whereas James S. Sigee and John O. Bustin, of, &c., for the benefit of F. W. Hathaway, of, &c., by the…

<p>On Report.</p> <p>Replevin for a riding wagon.</p> <p>Plea, general issue, with brief statement alleging property and right of possession in the defendant and not in the plaintiff.</p> <p>Plaintiff testified : — That he resided in Yan Burén Plantation and was the owner of the wagon in controversy; that Francis H. Yiolette took the wagon from plaintiff’s possession, Oct., 23, 1865, and sold it at auction 25th same Oct.</p> <p>On cross-examination, he testified : — That Yiolette acted as collector of taxes in the plantation; that A. S. Richards and E. Parde acted as assessors of taxes in the plantation that year. Yiolette demanded payment of my taxes before selling the wagon. Yiolette returned to me the surplus for which the wagon sold above my taxes and costs.</p> <p>The warrant and tax list signed by Richards and Parde, as assessors, was put in and their signatures proved.</p> <p>The collector Yiolette testified to all the facts in detail of demanding taxes, taking of the wagon,' posting notices of sale, sale, and of returning to plaintiff an account of sale with the surplus proceeds of the sale.</p> <p>The case was submitted to the full Court with jury powers, who were to render such judgment as the law and facts might warrant.</p> <p>Proof that a person acted as a public officer is prima facie evidence of his official character. 1 Greenl. on Ev., Ill, 121; Hutchings v. Van Bohkelen, 34 Maine, 126.</p> <p>Plaintiff, a resident of Y. B. Plantation was to be taxed there. If tax was illegally assessed, his remedy was against the plantation. A. <$> W. Ootton Man. Co. v. Amesbury, 17 Mass., 460; 8 Maine, 278. Or trespass against the assessors. The collector, and a fortiori, an innocent purchaser would not be respo nsible for any irregularities on the part of others. Holden v. Eaton, 8 Pick., 436.</p> <p>Collector made statute account of sales and paid surplus to plaintiff who received it.</p> <p>A sale of personal property by a public officer, at public auction, he being authorized by law and having an official jurisdiction over the procedings, transfers the debtor’s title to a bona fide purchaser, although the officer may not have conformed to the requirements of the statute in making the sale. Tuttle v. Gates, 24 Maine, 395 ; May v. Thomas, 48 Maine, 397; Ludden v. Kincaid, 45 Maine, 411.</p> <p>It is for the interest of the debtor that his property should bring the highest price and not be sacrificed. If a sale could be avoided by some irregularity, his property would only bring a nominal price. There would be no bidders.</p> <p>This plaintiff has already sued collectors for the wagon. If he succeeds in present suit,</p> <p>1. He will receive benefit of payment of his tax, $16,93 ;</p> <p>2. Surplus paid to him by collector, $35,87, making $52,80;</p> <p>3. Would keep wagon from an innocent purchaser; and</p> <p>4. Recover value of wagon of collector.</p>

On Exceptions. Replevin for a colt. Writ dated October 2, 1865. Plea, general issue, with a brief statement denying title of the plaintiff and claiming property in the defendant. The plaintiff introduced a writing signed by the defendant and duly stamped, of which the following is a copy:— Maysville, Sept. 19, 1864.

On Exceptions. Replevin for a colt. Writ dated Oct. 4, 1865. Plea, general issue with brief statement, claiming title in the defendant and denying, title in the plaintiff. It appeared that, on Oct. 2, 1865, the defendant replevied the same colt from one Delano and received possession of the colt from the officer, whereupon Delano, owing the plaintiff $42, sold the colt to the plaintiff for a fair value, and thereupon the plaintiff instituted this suit.

On facts agreed. Assumpsit for supplies furnished a pauper whose settlement was alleged to be in the defendant town. The only question was that of settlement.

<p>On Report.</p> <p>Assumpsit by the executors of the last will and testament of the late Nathaniel Gilman, upon a written memorandum of the following tenor:— " Waterville, Aug. 17, 1855. "Received of Nathaniel Gilman, nine hundred dollars, payable on demand with interest.”</p> <p>(Signed,) " W. H. Healy.”</p> <p>On the memorandum were the following indorsements :— "Jan. 18, 1862, received $100; May 12, received $300; Aug. 22, received $426.”</p> <p>Defendant read in evidence a paper of the following tenor :</p> <p>"Received of Wm. H. Healy twelve hundred and seventy-five dollars and fifty-six cents, in full discharge, award and satisfaction of two notes of hand now in suit against him, in the name of Charles B. Gilman and Anna K. Gil-man, ex’rs on the estate of Nathaniel Gilman, late of Water-ville, deceased, one note dated Nov. 1, 1855, for $1,945,38, given by said Healy to N. Gilman & Son, the other dated Aug. 17, 1855, for $900, given by said Healy to said N. Gilman, each note having been in part paid by said Healy, said sum being the amount due on said notes after allowing said Healy certain sums claimed- by him as payments on said notes, by way of settlement and compromise, in accord-’ anee with a decree of the Probate Court for Kennebec county, authorizing such settlement and compromise of said notes and claims.</p> <p>" Chas. B. Gilman, Ex’r on the estate of</p> <p> Nathaniel Gilman, deceased. </p> <p>" Witness, Rob’t B. Woodward.”</p> <p>Defendant also read from the probate records of the county of Kennebec as follows : —</p> <p>" To H. K. Baker, Judge of Probate for Kennebec county :</p> <p>"We have a suit against Wm. H. Healy, on a note given by him to N. Gilman & Son, for $1,945,38, dated Nov. 1, 1855, and also a note given by said Healy to N. Gilman, deceased, for $900, dated August 17, 1855, and said Healy defends said suit and claims to have a defence to said notes, but, for the purpose of a settlement and by way of compromise, said Healy offers to pay the balance on said notes, deducting from the note in favor of N. Gilman & Son, as of its date, the sum of $500, claimed as paid by him, and from the note to N. Gilman, $318, claimed as a payment by him, computing the interest on the balance annually, and said Healy to pay one-third of the costs of suit. And we ask the authority of the Court to compromise said suit as above. "Joseph Baker, Att’y for Kx’rs of</p> <p> JST, Gilman’s estate. </p> <p>"Augusta,- 13, 1867.”</p> <p>"Kennebec county. — In, Probate Court, held at Augusta, on the second Monday of May, 1867.</p> <p>" On the foregoing petition,</p> <p>" Ordered, — That the said executors have authority to compromise the claims of said estate against Wm. H. Healy, as requested therein. "H. K. Baker, Judge.”</p> <p>J. Baker, Att’y for the plaintiffs, testified: — This petition is in the handwriting of Mr. Libbey, signed by me, as it appears, as attorney for the executors of Nathaniel Gil-man, deceased. My present impression is, I had no communication with Charles B. Gilman in relation to this compromise, but of that I am not certain. I took the statement from Mr. Libbey; he and I had an understanding that such was the arrangement. I had no authority from Anna K. Gil-man to act in relation to the compromise in any way, and, when it came to her knowledge, she repudiated the whole thing. She did not assent, but objected to it. I mean to say I had no authority from her to originate this proceeding in the Probate Court. The first communication I had with her was after I understood that the matter had been settled, and she then refused to give her assent to the settlement. '</p> <p>A. Libbey, Att'y for the defendant, testified: — I never had any communication with Charles B. Gilman in regard to the settlement of this estate. Gen. Moor, who acted as counsel for the executors in the settlement of their matters, communicated to me the fact that an agreement had been made by the executors for the settlement of this action. My client also communicated the same information. The latter part of April or the first of May, Anna K. Gilman sent a note to me, requesting me to meet her at the Augusta House, for consultation on some business. I went there and met her. We consulted first in regard to an equity suit by her mother against her and Charles, as executors. After we got through with that, I said to her that I understood an agreement had been entered into for a settlement with Mr. Healy. She said there had been negotiations between Mr. Healy, Gen. Moor and Charles, and that one time she assented to it, but on inflection she did not feel quite satisfied to have it settled by the allowance of $818 on the $900 note, which Mr. Healy alleged was in the hands of her father, coming from her grandmother’s estate to him, and which her father, Nathaniel Gilman, had agreed, as Heaiy alleged, to allow on the $900 note. She said there were several grandchildren who would claim the same sum if they allowed that to Healy on that ground, and that was the objection she had to the settlement. I said to her, if that was her objection, I thought it could be obviated by allowing it to Mr. Healy as a payment on the $900 •note, without its appearing from what source it came. Then ■she said her counsel in New York had said to her that there might be another objection ; it was doubtful whether they, as executors, had authority to compromise a suit by allowing sums in payment which were not really payments, and it might interfere with the settlement of the estate in New York. I told her we had a statute authorizing Probate Courts to pass decrees authorizing a compromise and settlement of controverted claims, and that a petition might be made to the Court, and the decree of the Court would be full authority for the executors to settle. She stated, if that could be done and done so that it would not appear that the $318 came from her grandmother’s estate, she would assent to it, and that the petition might be made to the Probate Court for that purpose. She stated that Mr. Baker was her attorney, and that he could sign it. That was all, in substance, that passed between us in regard to the settlement of the action. I mentioned to Mr. Baker the fact, and, at his suggestion, I drew up the petition and he signed it, relying, I suppose, upon the statement I made to him. When I next saw Miss Gilman, which I think was in July, she informed me she had changed her mind and would not assent to that settlement.</p> <p>By agreement of parties, the case was withdrawn from the jury and submitted to the full Court, upon so much of the foregoing evidence as is competent and admissible, the Court to render such judgment as the legal rights of the parties may require.</p> <p>1. One of two joint executors, who have given one joint bond and are therefore each liable joe?’ my et per tout, cannot compro mise for less than the face a debt due the estate, and allow disputed offsets and give a valid discharge, without the consent and against the protestations of the other.</p> <p>2. Probate Court granted a power to the two plaintiffs jointly, pendente lite, to compromise the suit. It was a trust conferred upon two, relying upon their united judgment. One cannot execute the joint trust when the other refuses.</p> <p>3. The discharge is not under seal, and it was not given for any new consideration. Bunt v. Stevens, 24 Maine, 532.</p> <p>4. The discharge is not admissible under the general issue, but is matter in defence, arising ''puis darrein continuance.” Rowell v. Hayden, 40 Maine, 582; Fiske v. Holmes, 41 Maine, 441-5; McKeen v. Parker, 51 Maine, 389.</p>

On Report. Writ op Entry. Writ dated July 18, 1865. Plea, general issue, with, brief statement averring the title to the demanded premises to be in the defendant Reuben Weeks, and that the defendant Bassett was in possession under him. The deed from Moses Bassett to Reuben Weeks, covering the premises, was duly executed, delivered, acknowledged and recorded, June 21, 1865. The remaining facts sufficiently appear in the opinion.

On Exceptions, ancl motion to set aside the verdict as being against evidence, and because of the alleged excessive amount of damages. Assumpsit to recover the value of certain real estate alleged to have been conveyed by the plaintiff to his father, the defendant. The writ was dated July 14, 1865.

On Report. Debt on a judgment of the late District Court, Middle District, recovered in favor of Julia Macomber, the plaintiff’s intestate, at the August term, 1844, against the defendant for one year’s alimony of §44. Writ dated Eeb. 19, 1866. Plea general issue.

<p>The right to impress property to he used for the taking care of persons infected with sickness dangerous to the public health, can .only he exercised when expressly granted.</p> <p>Chapter H of R. S. does not authorize the impressment of a stagecoach for the removal of a person thus infected.</p>

On Eeport. Assumpsit upon a negotiable promissory note against the second indorser. The facts sufficiently appear in the opinion.

On Report. Assumpsit, to recover damages for an alleged breach of promise to marry. The action was commenced by the plaintiff’s intestate, in her lifetime ; but, she having deceased, it is now being prosecuted by her administrator. The defendant contended that the action did not survive.

On Exceptions. The trustee disclosed that, on the 15th of Dec., 1865, he purchased a horse of the principal defendant, for which the former agreed to pay the latter $45, in five months from the day of sale, and gave him his negotiable promissory note on five months; that, on Jan. 1, 1866, the promisor paid to the promisee’s wife, $10, tobe indorsed on said note; that, on April 17, 1866, he was served with the writ in this action ; that, about two weeks thereafter ward, one…

On Report. Trover for the conversion of four hundred dollars of U. S. 7-30 treasury notos, Nos. 54,969, 73,089, and 73,090, each of the denomination of $100, with interest coupons attached, and Nos. 44,434 and 44,435, of the denomination of $50, with interest coupons attached. Writ dated May 12, 1864. Plea general issue. William H. Kimball* called by the plaintiff, testified : — ■ Lived with the plaintiff, my mother, in Gardiner, in 1862, 3 and 4.

<p>Bill in Equity, heard on demurrer.</p>

On Exceptions. Dower unde nihil habet, the declaration being same as in Freeman v. Freeman, 39 Maine, 426. The remaining facts are sufficiently stated in the opinion.

<p>On Exceptions.</p> <p>The facts sufficiently appear in the opinion.</p>

<p>When a call in a deed hounds one side of the land therein conveyed “ by the new county road leading from” a place named “ to” another place named, and the road as located hy the commissioners, and that as actually wrought and travelled, are not identical, the latter alone will answer the call.</p>

On Exceptions and motion to set aside the verdict as being against the weight of evidence. Real Action. The parties derive their title from one William M. Mann, the plaintiff claiming under a deed given by the guardian of the children of said Mann, and the defendants under a deed from said Mann to Obadiah Mann, dated July 28,1853, and various mesne conveyances. The defendants introduced and read in evidence the deed of John Gr.

<p>In assumpsit by one town against another for supplies furnished an alleged pauper, parol evidence that certain persons (named) were acting overseers of the poor of the plaintiff town, when the supplies were furnished, is admissible.</p> <p>So is the testimony that the pauper, at the time it is stated he fell into distress, called at the residence of one of the overseers, and, inquiring for him, sat down and cried while waiting for the overseer’s return from his field.</p> <p>So is the testimony of a physician, descriptive of a disease upon the pauper, unfitting him for labor.</p> <p>Where, upon the issue of the alleged pauper’s “need of relief,” the testimony of several witnesses, called by the plaintiffs, tended to establish the affirmative, while that of C. T., introduced by the defendants, tended to prove the contrary, it is competent for the plaintiffs, without first interrogating C. T. as to the subject matter, to prove that C. T. had, when speaking of the action, declared “ she would do all she could to help the defendants, she’d be damned if she would’nt.”</p> <p>The defendants had introduced testimony tending to prove that the supplies furnished by the plaintiffs, May 1,1861, were collusively furnished; —Held, that the presiding Judge properly instructed the jury — that, as the plaintiffs’ testimony showed that the alleged paupers had had their home in the plaintiff town, since Hay, 1856, the burden of proof was on the plaintiffs to show that, before the lapse of five years from that time, they had become destitute and in need of relief, and had received necessary supplies as paupers; otherwise their settlement would be in the plaintiff town; that» if the plaintiffs had satisfied the jury of these facts, and that such supplies were furnished and received, the presumption was, in the absence of evidence to the contrary, that the transaction was in good faith; and that, if the defendants claimed that there was bad faith on the part of the overseers of the plaintiffs, and that the supplies were furnished eollusively and by the contrivance of the overseers to prevent their gaining a settlement in the plaintiff town, the burden of proof was upon the defendants to show it.</p>

On Exceptions Trespass for taking a pair of oxen, cart, yoke, bows, ring and staple. Writ dated Aug. 11, 1865. The plaintiff introduced a bill of sale of the property sued for, with other property, from one Albert Williams to himself dated Aug. 2d and 3d, 1865. The defence was that the sale from Williams to the plaintiff was fraudulent as to creditors and subsequent bona fide purchasers, the defendants claiming to be in a condition to raise that question.

<p>On Report.</p> <p>Case, under R. S., c. 113, § 47, for aiding in the fraudulent concealment of the property of Albert Williams.</p> <p>The testimony is sufficiently stated in the opinion.</p> <p>The defendant’s counsel contended that tiiis action cannot be maintained by the plaintiffs jointly; and that the plaintiffs were not creditors within the meaning of § 47.' Thereupon the case was continued on report, with the agreement that if, in the opinion of the full Court, the action can be maintained, it is to stand for trial; otherwise the plaintiffs to be nonsuit.</p> <p>1. Plaintiffs were creditors of Williams within the purview of § 47. Howe v. Ward, 4 Maine, 195; Thompson v. Thompson, 19 Maine, 244; Sargent v. Salmond, 27 Maine, 539; Thatcher v. Jones, 31 Maine, 528.</p> <p>2. Statute is remedial and to be construed liberally. Quimby v. Carter, 20 Maine, 218. A surety. paying the debt of the principal is subrogated to the rights of the creditor. Norton v. Soule, 2 Maine, 341; Olosson v. Morris, 10 Johns., 524.</p> <p>3. The interest of the sureties in the property fraudulently conveyed is a joint interest. Every dollar fraudulently conveyed increased the risk of each equally. The property of the principal debtor constitutes a joint fund out of which they are jointly to be relieved. Flwood v. Deifendorf, 5 Barb., 398.</p> <p>4. Plaintiffs should join. 1 Chit. PI., 63, 64, 65 and 66; Medbury v. Watson, 6 Met., 246; 1V. Y. & 8. L. C. Co. v. Fulton Bank, 7 Wend., 412; Jackson v. Sidney, 12 Johns., 185; Pickering v. Pickering, 11 N. H., 141; Oilman v. Wilbur, 12 Pick., 120.</p> <p>cited Pullen v. Hutchinson, 25 Maine, 249 ; Craig v. Webber, 36 Maine, 507; Bovey. Wilson, 1 Jones, (N..C.,) 182; Quimby v. Carter, 20 Maine, 218; Ingalls v. Dennett, 6 Greenl., 79; Woodward v. Herbert, 24 Maine, 358; Filis v. Ham, 28 Maine, 387; Huzzey v. Collins, 30 Maine, 190; Dole v. Warren, 32 Maine, 94; Peed v. Pierce, 36 Maine, 461; Hoyt y. Wilkinson, lOJPick., 30; Wood v. Deland, 1 Met., 387.</p>

<p>By the laws of this State, a husband acquires no right to control the personal property of his wife, by virtue of the marriage relation.</p> <p>Whether such property consist of household furniture kept in her husband’s house, or of stock kept on his farm, the wife is deemed to be in possession of it, in the same manner that the husband is of his property kept in the same manner.</p> <p>The natural increase of a mare, while thus owned and possessed by a married woman, belongs to the wife.</p> <p>Delivery is an essential element to be proved in establishing a title by gift. The naked declarations of the husband, as to the ownership of personal property claimed by the wife, are inadmissible. '</p>

<p>Where a public law has, in accordance with its provisions, been legally adopted by a city council, such an adoption of a subsequent Act amendatory of the former, is not essential, unless its provisions expressly require it.</p> <p>The provisions of c. 177 of the Public Laws of 1860, abating nuisances, as amended by c. 187 of the Public Laws of 1863, requiring the notice therein provided to be published “three weeks successively” in a certain newspaper, is complied with, when such notice was- published in the weekly issue of such paper, dated the 15th, 22d and 29th, respectively, of the same month, although the hearing under such notice was to take place on the 30th.</p> <p>The order of notice provided by this statute, passed at a legal meeting of the mayor and aldermen, is legal when the record shows that the mayor was present and participated in the proceedings; no separate action of the may- or being necessary.</p> <p>This statute requires no complaint to be made, but it is competent for the mayor and aldermen to act upon their own previous observation and knowledge of the unsafe condition of the building.</p> <p>And, if the notice ordered at the time of adjudication fails of service, a new notice may be ordered and served, without commencing proceedings anew.</p> <p>Chapter 177 of the Public Laws of 1860, and c. 187 of the Public Laws of 1863, are constitutional.</p>

<p>To render the votes of a town meeting legal, it must appear, from the return upon the warrant, that the places where the attested copies thereof were posted were public and conspicuous places.</p> <p>The vote of a town, at a legal meeting, adopting or ratifying the proceedings of a prior illegal meeting, can be regarded as adopting or ratifying such proceedings only to the precise extent indicated by such vote.</p>

Bill in Equity, heard on bill, answer and proof. The prayer of the bill was for a decree of conveyance in fee, free from all incumbrances, for process to enforce the same, and for injunction against other conveyance and incumbrance during the pendency of the bill. The facts sufficiently appear in the opinion.

On Exceptions. Indictment, the material portions of which are as follows : — Sagadahoc, ss. — At the Supreme Judicial Court, begun and holden at Bath, within and for the county of Sagadahoc, on the first Tuesday of April, in the year of our Lord one thousand eight hundred, and sixty-seven— The jurors for said State upon their oath present, that David Bartlett alias Pitz Erald alias J. Dunbar, Orrin Syms alias Orrin Burns alias Rory Syms alias Rory Burns, and Edward Maguire,…

Bill in Equity, heard on demurrer. The bill substantially alleges that the complainant and the defendant Noble, on March 20, 1863, by parol agreement, entered into a co-partnership in the clothing business, each contributing same amount of capital; that, in the prosecution of their business, the complainant, from time to time, advanced of his private funds for the purposes of the firm various sums, amounting in all to $5000, which have never been repaid, but remain due; that…

<p>On Report.</p> <p>Assumpsit upon an unindorsed negotiable promissory note, dated July 27, 1858, signed by the principal defendant and made payable to J. W. L. Brown. Writ dated July 3, 1865.</p> <p>The plaintiff alleges herself "of the city, county and State of New York, administratrix of the estate of J. W. L. Brown, late of Dubuque, in the State of Iowa, deceased,” and the principal defendant as resident in the " State of Nevada.”</p> <p>The action was duly entered at the October term, 1865, when the trustees, residing in Portland, were charged upon their disclosure, and notice ordered upon the principal defendant.</p> <p>At the following (April) term, the notice ordered having been complied with, the principal defendant appeared by his counsel and filed a plea in abatement, alleging therein that the plaintiff " is not now and never has been the administratrix of the goods and estate of J. W. L. Brown, late of Dubuque, &c., deceased, in and for the State of Maine;” to which plea the plaintiff filed a general demurrer.</p> <p>At the January term, 1867, the case came on for trial, when the defendant moved for leave to amend his plea in abatement by verifying it by affidavit; but the motion being resisted, was denied by the presiding Judge. Whereupon the defendant joined the demurrer, which was sustained and the plea adjudged bad.</p> <p>The defendant then pleaded the general issue together with a brief statement, alleging in bar that the plaintiff " was never duly appointed administratrix of the goods and estate of her said alleged intestate, within and for this State, and has not so alleged herself in her said writ,” Ac., and also setting up the statute of limitations.</p> <p>At the same term, the plaintiff moved for leave, and was allowed, to make upon her writ the following indorsement: " The promissory note within described, is the property of the plaintiff in her individual right and capacity, and this suit is in the name of the plaintiff, as administratrix, for her benefit individually, and not as administratrix.”</p> <p>After reading the note declared on, the plaintiff put in, subject to objection, certain evidence tending to show that the note was her individual property by virtue of a written adjustment between herself and the heirs of her deceased husband, the payee.</p> <p>It was in evidence that the plaintiff had been appointed administratrix of her husband’s estate in this State since the commencement of this action; that previous thereto she was such administratrix in Iowa. It was also proved that the defendant had not resided within this State since the date of the note.</p> <p>After the evidence was all in, the case was marked law and continued on report, — the full Court to draw such infereuces as a jury might, and to enter judgment according to the rights of the parties.</p> <p>An administrator, appointed and commissioned under the authority of another State, eanuot maintain an action in this State upon any contract made with his intestate.</p> <p>The plaintiff’s allegation of the capacity in which she sues is equivalent to an allegation that she holds her letters of administration under the authority of another State. She being a foreign administratrix, the plea in abatement need not be verified.</p> <p>This defence may be pleaded in bar as well as in abatement. Lang Aon v. Potter, 11 Mass., 315.</p> <p>Pacts in Ciarle v. Pishon, 31 Maine, 501, very different from these.</p> <p>The general issue or plea in bar admits nothing not set out in the declaration. Plaintiff does not allege herself to be administratrix of her intestate within this State, and she was not.</p> <p>Counsel also elaborately argued the effect of plaintiff’s subsequent appointment.</p>

<p>If, upon citation, the surviving partner of a firm decline to give the hond provided in R. S., e. 69, § 2, the administrator of the deceased partner, on giving the bond prescribed for him, is entitled to the possession of the partnership estate for administration; and may maintain replevin therefor against an officer who has attached such estate in an action by a creditor of the firm, against the surviving partner.</p>

<p>In the trial of a real action between tenants in common, the defendant, under the general issue alone pleaded, cannot give in evidence that he “ had never ousted the plaintiff of his portion of the demanded premises, nor in any way hindered his taking possession, but had only been in possession of the same as tenant in common with the demandant.”</p>

<p>On Exceptions.</p> <p>Debt on a judgment for flowing the plaintiff’s lands in Raymond.</p> <p>The writ is dated May 9, 1864, and substantially alleges that the defendant and one William S. Douglass, on and after April 1, 1856, built and maintained a dam across "Duran’s brook,’’ whereby plaintiff’s lands were flowed; that, on April 1, 1859, plaintiff made complaint to the S. J. Court for the injury; that the respondents did not appear, but made default, whereupon one Jordan, Brown and Baker were duly appointed commissioners to determine the matter of said complaint ; that a warrant was duly issued July 13, 1859, to said commissioners, who, after being duly sworn, notified and heard the parties, viewed the premises, estimated the yearly damage at $15, and made due return of their report Oct. 19,.1859 ; that said report was duly accepted at the October term, 1859, and judgment rendered thereon; that, on the day of the purchase of this writ, the defendant (Getehell) was owner and occupant of the mill and dam; that the said dam was and had been maintained to its original height by the defendant; and that said Getehell and Douglass had paid but $30 damages for two years, and no more.</p> <p>The defendant admitted the facts set out in the declaration, and pleaded in bar an arbitration and award between the parties, since the rendition of the judgment, of the subject matter in controversy and all other matters in dispute between them, setting out the agreement for arbitration and the award, together with a profert of the award itself, and averring a tender of performance on Sept. 1, 1860, and a continued readiness to perform.</p> <p>To this plea the plaintiff demurred, alleging that said judgment still subsists and remains unsatisfied;-that said. reference and award were not legal and binding; that, at the time they were made, the plaintiff was and still is the wife of Samuel Duren, then living, who did not join with her in said reference, and that said reference was a contract which she, as a married woman, was incompetent to make, and on which she is not liable; that said defendant and Douglass did not comply with the conditions of said award by paying or offering to pay the sum therein awarded when the same became due and payable, according to the terms of said award; that one Brown, one of said referees, was also one of said commissioners; that the yearly damflge for flowage was assessed by said commissioners on October 19, 1859, at $15, and the damage for the perpetual right of flow-age, on May 1, 1860, as awarded by said referees, was $50, the said Brown concurring therein ; that said reference was prospective merely, and did not embrace and include the unpaid yearly damage assessed by said commissioners ; that said award was unfair and unjust, illegal in form and intent, and insufficient to bind the parties thereto.</p> <p>The defendant joined the demurrer, whereupon it was overruled by the presiding Judge and the plea in bar adjudged good ; to which ruling and decision the plaintiff alleged exceptions.</p> <p>So much of the submission as is essential to an understanding of this case is as follow: —</p> <p>" The undersigned hereby enter into an agreement as follows, to wit:—</p> <p>"They select the following named persons as referees, to wit: — Samuel S. Brown and William Nason, (and, in case they cannot agree, said Brown and Nason shall choose a third,) and agree to submit to their arbitration all claims and demands between them, of every name and nature, embracing, among other things, * *</p> <p>"All questions as to damages for flowing land by said Gfetchell and Douglass, claimed by Hannah Duren, giving said referees power to fix and award a sum in full for said flowage, instead of the yearly damages now established by report of commissioners. Also, giving said referees full power and authority to make and establish a line, now in dispute, between lands owned and claimed by said Getchell and Douglass and said Hannah Duren.</p> <p>"The parties to this agreement are said Getchell and Douglass on one part, and Samuel Duren and Samuel Duren, jr., on the other part, as to all matters and claims between them, — and said Getchell and Douglass on the one part, and said Hannah Duren on the other part, as to all claims, matters and difficulties between them.</p> <p>" Said referees shall have power to award costs to either party. Said parties agree to abide by and perform the award of said referees, which they shall make in writing, and said award shall be a final settlement of all matters and claims as above referred.</p> <p>"Feb. 16, 1860. — Signed, sealed and delivered in presence of,” &e. (Duly signed, sealed and witnessed.)</p> <p>So much of the award as is pertinent, omitting formal parts, is as follows : * * — "Having viewed the premises when flowed, also when the water was entirely off the same, we award to said Hannah Duren the sum of $50, in full, for damages by flowing any and all land now in her possession, lying, &a.; and that she shall accept said sum, and, upon the payment of which, she shall relinquish and totally abandon all claim to the yearly amount of damage before established by report of commissioners, for flowing her said land; which sum shall be due on the first day of September, A. D. 1860, the payment of which, by said Getchell and Douglass, shall entitle them, their heirs, or any persons legally claiming under them, forever to flow said Hannah Duren’s land, as aforesaid, at any and all times a year, so much as the present dam will raise the water.”</p> <p>citing, upon the point of the plaintiff’s inability to enter into the submission, the following authorities. Ex parte Thomas, 3 Maine, 50; Lane v. McKeen, 15 Maine, 304; Davis v. Millett, 34 Maine, 429; Ayer v. Warren,, 47 Maine, 217; Howe v. Wildes, 34 Maine, 566.</p> <p>cited Story’s Plead., 165; Knapp v. Ciarle, 30 Maine, 244; R. S.,“ c. 61, §§ 1 and 3 ; Springer v. JBerry, 47 Maine, 330 and 337 ; Smith v. Sweeny, 35 N. Y., cited in Law Register for April, 1867; 1 Chitty’s Plead., 928, note W, and cases cited infra.</p>

<p>A judgment against two or more defendants jointly is an entirety, and must stand or fall as a -whole.</p> <p>Such a judgment is erroneous and will not sustain a levy made upon the real estate of the other, if one of the defendants was not an inhabitant of this State, and no personal service of the writ was made upon him.</p> <p>When a bill in equity is brought to redeem a mortgage, and the complainant bases his right to redeem upon a levy made upon the mortgager’s equity of redemption, the respondent, not being a party or privy to the judgment, may prove it erroneous and void for want of jurisdiction of the parties.</p>

<p>The presiding Judge cannot be required to rule upon the force and effect of testimony upon the position as it is produced; and neither is he under any obligation .to make known his views of the relative condition of parties as to the burden of proof at every stage of a trial.</p> <p>A new trial will not be granted on account of the permission of an improper question, when it is manifest that the answer could not have prejudiced the excepting party.</p> <p>Where, in the trial of a writ of entry, the validity of a deed under which the defendant holds is attacked upon the ground of the mental incapacity of the grantor at the time of its execution, a paper purporting to be the last will and testament of said grantor, wherein he makes his nephew. instead of his daughter residuary legatee, is too remote and uncertain in its character, and opens too many collateral issues to be admissible.</p> <p>So is a trust deed of certain stocks and notes from said grantor to his former guardian, made for the avowed purpose of carrying into effect the sundry provisions of said will.</p> <p>A letter, dated a few days before such deed, written by a relative to the former guardian of such grantor, advising the sale of the land described in such deed, and the mode of securing payment to the grantor’s wife, is no part of the res gestae, and is not admissible as an ancient contemporaneous document.</p> <p>To sustain an exception to the admission of testimony, it is incumbent upon the excepting party to make it apparent that there was no phase of the case as presented at nisi prius which authorized the admission.</p> <p>A party cannot be considered as aggrieved by the omission to instruct in form as requested, if the rule, which ought, of right, to govern the decision of the case, was clearly and intelligibly given.</p> <p>Where, in the trial of a writ of entry, the validity of the deed under which the defendant claims is controverted upon the ground of the incapacity of the grantor, by reason of mental disease, the presiding Judge submitted to the jury certain written questions embracing the substance of the issue, with such instructions as could not fail to give the jury to understand that, upon their answers or some of them at least, the rights of the parties must depend, reserving his instructions as to the legal effect of the answers until these questions were settled: — Held, that there was no error in such a proceeding.</p> <p>Thus, where the questions submitted to the jury were, — (1,) was the grant- or, at the time of executing and delivering the deed in controversy, of sound mind? accompanied with the instruction substantially, that he presented no inquiry but simply that of absolute.soundness of mind; to which the jury answered that they were unable to agree upon a direct answer: — and (2,) did tlie grantor execute and deliver said deed at, or about its date, understanding and comprehending the nature of his act, the consideration to be paid, and that he was thus transferring -the title of the property therein described to the grantee, and the consideration to himself? accompanied by proper instructions; to which they answered, “ he did;” and thereupon the presiding Judge instructed the jury that, upon their finding, the defendant was entitled to their verdict: — JEteld, that those proceedings were unexceptionable; the ruling in substance being that ability to execute and deliver a deed, understanding and comprehending the nature of the act, the consideration to be paid, and that he was thereby transferring the title to his property to the grantee and the consideration to himself, indicates sufficient soundness of intellect in the grantor to make the conveyance valid, though it be uncertain whether his was in all respects and absolutely sound.</p>

<p>In a bill in equity, brought to give construction to a will, which, after providing for the payment of all debts and certain specific legacies, and appointing the executors as trustees, further provided, that the remainder of her whole estate, real, personal and mixed, should remain and be kept, for the full period of twenty years from the date of said will, under the care and management of said trustees, for the benefit of certain grandchildren named; that so much of the income of said estate as might be deemed necessary by said trustees, should be applied to the education and support of said grandchildren, and for a suitable provision for them in case of marriage, * * “ before said period shall elapse,” and the remainder thereof to be judiciously invested until said grandchildren should become entitled to receive their respective proportions; that, at the expiration of said period, the “ whole of the” testator’s “ estate and property” should be equally divided among those of said grandchildren then surviving, and the lawful issue of such as had deceased : — Seld,—</p> <p>1. That the trusts were determined at the expiration of the period named; 2. That the devisees, without regard to sex, were to receive equal proportions of the realty in fee simple.</p> <p>A provision in a will, restricting tlie riglits of tlie devisees in the control and disposition of estates therein devised to them in fee, is void for repugnancy.</p> <p>Where a will devised an estate in fee to the testator’s grand-daughters, to vest in them at the expiration of twenty years from the date of the will, and provided that said estate should “ he so received” (by the trustees having its care and management prior to the expiration of such period,) “ for the use and benefit” of said grand-daughters, “ as not to be subject to the control and disposition of their or either of their husbands — Meld, — That the last clause was not in limitation but in furtherance of the rights of the devisees.</p>

<p>The judgment of another State, decreeing a dissolution, and appointing receivers to wind up the concerns, of a corporation created by its laws, will not prevent an action commenced against such corporation here, prior to such dissolution, from proceeding to judgment, unless it be shown that the corporation is utterly extinct.</p> <p>It is not sufficient to show that, by the law and usage in the Court of the State where such decree of dissolution is passed, such corporation is permanently dissolved, although it still has a qualified existence, capable of being a party to a judgment there.</p> <p>The legal authority of receivers, duly appointed in another State, is co-extensive with the jurisdiction of the Court by which they were appointed.</p> <p>Comity does not require the S. J. Court of this State to permit receivers appointed by the Court of another State to exercise privileges detrimental to our own citizens, while pursuing appropriate legal remedies here.</p>

<p>On Exceptions and Motion to set aside the verdict as against the law, the evidence and the charge of the presiding Judge.</p> <p>Case, under c. 136 of the Public Laws of 1862, to recover back usurious interest.</p> <p>The writ was dated May 20, 1865. The presiding Judge, against the defendant’s objection, permitted the plaintiff to amend the eleventh count alleging that, — "Whereas the said defendant, prior to the fifth day of July last, had at various times loaned to the plaintiff large sums of money, amounting in the whole to a large amount, viz., three thousand one hundred dollars, and the said' defendant, at said Portland, on the fifth day of July last past, in violation of law, and contrary to the provisions of the statute in such case made and provided, did demand, take and receive of the said plaintiff a large sum of money, as excessive and usurious interest on said loans, to wit, the sum of twenty-five hundred dollars, and the plaintiff did then and there, as a consideration for said loans and the use of said money, pay to said defendant, in lawful money, said sum of $2500 over and beyond the legal interest on said loans, and in excess of the legal interest thereon, whereby and by force of the statute, an action hath accrued to the plaintiff to have and recover of said defendant said sum of $2500, with legal interest thereon from said fifth day of July last past,” by alleging as follows : —</p> <p>"That the said defendant, at said Portland, on the twenty-fifth day of April, A. D. 1856, having loaned and advanced the plaintiff money on that date, upon a certain contract or promissory note of that date, for the sum of five hundred dollars, signed by one Hiram H. Dow, for that purpose, at the special instance and request of the plaintiff, and of which request said defendant then and there had notice, did then and there take and reserve upon said contract or note, of and from the plaintiff, a rate of interest exceeding that established by law, amounting to the sum of thirty-four dollars, and in violation of law and contrary to the statute in such case made and provided, and, on the seventeenth day of August, A. D. 1856, at said Portland, in a contract made between plaintiff and defendant, of and on three certain contracts or promissory notes of that date, each signed by said Dow, for that purpose, at the special instance and request of the plaintiff, and of which said defendant had then and there notice, one of said notes amounting to the sum of six hundred and twenty-three dollars, payable in three months, and one of said botes, amounting to the sum of six hundred dollars, payable in three months, and one of said notes, amounting to the sum of six hundred dollars, payable in four months, — and all of said notes being made and given as aforesaid, and received by said defendant oí said plaintiff in substitution and renewal of said first described contract and promissory note, and on certain other money then and there loaned and advanced by said defendant to the plaintiff, said defendant did then and there take and reserve, in said last named contract and three promissory notes, a rate of interest exceeding that established by law, amounting to the sum of eighty-five dollars, fifty-nine cents, in violation of law, and contrary to said statute;* and, on the 13th day of November, A. D. 1856, in a certain other contract of loan of money, made by the plaintiff with the defendant upon two other certain promissory notes of that date, signed by said Dow at the special instance and request of the plaintiff, for that purpose, and of all which said defendant had notice,— one of which said notes being for the sum of six hundred and twenty-three dollars, payable in four months, and one of said notes being for the sum oí seven hundred dollars, payable in four months, and given by the plaintiff to said defendant in renewal and substitution of and for his last previously named contract with the defendant, and of and for two of said last three named notes, to wit, of said notes given as aforesaid, for the sums of $623 aud $600, each payable in three months from date, did then and there take aud receive of said plaintiff on said contract, and in said two notes, bearing date as aforesaid on said 13th day of November, 1856, a rate of interest exceeding that established by law, amounting to the sum of seventy-four dollars aud fifty-four cents, in violation of law and contrary to said statute, — the same sum being in addition to the unlawful interest previously reserved as aforesaid; and did, on the twentieth day of December, 1856, then and there at said Portland, in a certain contract made by the plaintiff with the defendant, and upon a certain other promissory note, bearing said last named date, for the sum of six hundred and forty-eight dollars, signed by said Dow at the request of the said Myers, for said purpose, and of all which said defendant had notice, and in renewal of said note for six hundred dollars, dated August 19th, 1856, as aforesaid, aud payable in four months from date, to be and recover of said defendant a rate of interest exceeding that established by law, amounting to the sum of thirty-six dollars, in addition to unlawful interest received as aforesaid, and in violation of law and the statute aforesaid; and did, at said Portland, on the eighteenth day of March, A. D, 1857, in a certain other contract made by and between the plaintiff and said defendant, of and on three other certain promissory notes, signed by said Dow at the request of the said defendant, for that purpose, — and all of which the defendant then and there had notice, — bearing said date and given and received of said plaintiff by said defendant, in renewal and substitution of and for the last previously named contract with the plaintiff, and of said three notes last described above, to wit, for the sums of $623 and $700 and $648, aud which said notes, so substituted and renewed, were each and respectively for the sum of $709,56, did take and receive of the plaintiff a rate of interest exceeding that established by law, amounting to the sum of one hundred eighteen dollars and twenty-six cents, in violation of law and of the statute aforesaid, in addition to the said several sums of unlawful interest aforesaid, and said defendant, at said Portland, on the eighteenth day of July, 1857, by and in another contract made by and between said plaintiff and said defendant, and of and on three other certain promissory notes bearing said date, and signed by said Dow at the request of the plaintiff, for said purpose, and of all which said defendant had notice, received by said defendant, in renewal and substitution of the three last described contract and promissory notes, and being respectively for the sum of eight hundred and nine dollars, did take and reserve of and from the plaintiff a rate of interest exceeding that established by law, amounting to the sum of two hundred and twenty-five dollars, in violation of law and contrary to the statute aforesaid, in addition to the sevei-al sums of unlawful interest above named.</p> <p>" And said defendant, on the eighteenth day of August, A. D. 1861, at said Portland, in and by a certain other contract made and entered into by said defendant with the plaintiff, for the amount of four thousand one hundred and eighty dollars, partly in renewal and substitution of and for said last above described contract and said three promissory notes, so signed by said Dow, and for and in renewal of another certain promissory note for five hundred dollars, dated the twenty-seventh day of June, A. D. 1857, signed by said Hiram H. Dow and indorsed by one John Gr. Myers, and payable in sixty days from date, and paid by said defendant at the request of the plaintiff, did take and reserve a rate of' interest of and from the plaintiff exceeding that established by law, amounting to the sum of six hundred and twenty-five dollars and fifty-three cents, in violation of law and contrary to said statute, and in addition to the several sums of unlawful interest beforementioued.</p> <p>"And that said defendant, on the fifth day of July, A. D. 1864, at said Portland, in a certain other contract for and amounting to the sum of six thousand dollars, then and there made by and between the plaintiff and said defendant, in substitution and renewal of, and to carry out the aforesaid last named contract of loan, and for money advanced by said defendant to the plaintiff as aforesaid, did then and there take and reserve and receive in money from the plaintiff, to wit, in the sum of six thousand dollars on said last previously described contract, dated the eighteenth da}"- of August, A. D. 1861, a rate of interest exceeding that established by law, amounting to the sum of three hundred and seventy-five dollars and ninety-eight cents, in violation of law and of the statute aforesaid, and in addition to the several sums of unlawful interest previously named, making in all of said several sums of interest so taken and received of the plaintiff by said defendant, and in said several times, and in said renewals and substitutions of said several loans and contracts aforesaid, a rate of interest exceeding that established by law, amounting in the aggregate, as aforesaid, to the sum of fifteen hundred and seventy-four dollars and ninety cents, whereby and by force of the statute in such case made and provided, an action hath accrued to the plaintiff, to have and recover of said defendant said sum of fifteen hundred and seventy-four dollars and ninety-eight cents, together with lawful interest thereon from said fifth day of July, A. D. 1864, on which day, as the plaintiff’ avers, he paid said sum of money on the contracts aforesaid, for unlawful interest, to the defendant.”</p> <p>Hiram H. Dow, called by the plaintiff, testified: — I have known Mr. Holmes thirty or forty years; he is a brother-in-law of mine. I have known Mr. Gerry a dozen or fifteen years. I gave a note April 25, 1856, of $500, for four months, for the benefit of Mr. Holmes, at his request. I did not see any money pass; I only know I signed the note for his- benefit. The rate of interest was talked over; Mr. Gerry generally figured it at two per cent, a month. On August 19, I gave notes, at the request of Holmes, payable to Mr. Gerry; I gave a note on three months for $623, another on three months for $600, and on four months for $600, — the three of the same date. I have no recollection about the money. I cannot explain them in any other way than that they were for the benefit of John, to go to Mr. Gerry; two per cent, a month was the interest upon these notes taken and reserved. On Nov. 13, 185ó, I renewed the note of $623, on four months, and gave another $700 note, for four months; these were given on renewal of two of the three months notes, dated Aug. 19, 1856. In December 20, I signed a note to renew the $600; I signed a note for $648, on four months ; I did not see any money paid when those notes were renewed ; the interest was added to the notes that were renewed. In the year 1857, March 18,1 signed three notes on four months, to renew the old ones to Mr. Gerry, of $709,56, each, amounting to $2128,68, dated March 18, on four months, all of them. I have no doubt that these notes were given for the renewal of the notes of Nov. 13 and Dec. 20. When the notes matured, I gave a new one with the interest added. In July, 1857, I gave three notes, of $809 each, on seven months, all the same amount, same date, same time; I have no doubt they were given to renew the notes of March 18. When these notes were given, Gerry wanted a mortgage, — the notes were increasing very fast; I did so at John’s request. It was property I took from him to save me harmless for indorsing for him. My name was upon another note, — a $500 note, called the Porter note. Mr. Porter held it; it was negotiated to a broker, dated June 24, 1857, on sixty days ; that note was not given to Mr. Gerry. When the notes became due, Mr. Gerry said if I would give him the deed outright of the property, (he had then only a mortgage,) he would take up that note, and release me; he did so ; I never heard from it afterwards. The property that I was to give him a right-out deed of, was John Holmes’ homestead, on Stevens’ Plains, — the same property that I had previously mortgaged to Mr. Gerry. Mr. Gerry would do that if I would give him the deed; and he wmuld give back John a writing that, when he paid what was due, he would give a deed to him; he said he should prefer not to do it then, as that would give it the form of a mortgage, but, after a short time, he would give him a writing that he would do that. It was a part of the arrangement between Gerry, Holmes and myself, that Gerry should take that note up, and hold it as a claim against Mr. Holmes, secured by this real estate. All these notes were given by me ; all the transactions about these notes were performed by me solely for Holmes’ beuefit. John G. Myers did not request me to sign any papers for him, and I did not sign any at his request. During this period I had frequent interviews with Mr. Gerry, at his office and other places, and frequently conversed in reference to these matters between himself and Mr.-Holmes; we talked as friends, very freely; he often said to me he did not think I would lose anything, — that Myers was likely to be successful, and, if Myers was successful, he thought John would get his pay from Myers, for the matters between us. Mr. Gerry certainly knew that I was doing all this for Mr. Holmes, and not for my own account. He and John fixed up the matters; I used to go there, and fix up the notes.</p> <p>Oross-examined. — I was the promisor in all these notes I have spoken of, —they were all made payable to Elbridge Gerry; I am not positive that John Holmes’ name was on any of these notes ; I should say it was not; I am very sure it was not on; he might put his name on after I signed it. This paper, dated April 19, 1860, has my signature. I should doubt if I was present at any negotiation between Mr. Holmes and Mr. Gerry. I could not say what the bargain was. I know I went at his request; I think I was not present at any of the negotiations of any of these notes. I heard the rate of interest talked over, at the time the notes were cast; I was present at the signing of the notes. Mr. Holmes would ask me to go into Mr. Gerry’s; he supposed we should have to renew. I signed them all at his request. I never did anything in reference to the notes except to sign them. How I know that it was two per cent, per month is, that I saw them make the figures. I can’t state what was said about it; I can’t remember the particulars. I did not have my own notes out except for him. When this note came due, in August, I presume it was renewed; I know they were renewed; my book says they were. When I gave new notes in August, they were computed at two per cent, per month. My book says that I signed three notes in August, for $623, $600 and $600. I signed for renewal. I believe these notes were ultimately paid in 1864; I know something about it. It strikes me that in 1857 we settled with him, and he looked to the property and John; they were paid when the quit-claim deed was given, so far as I was concerned. I think John did it all before I saw Mr. Gerry; I went to see Mr. Gerry about it afterwards. The Porter note was $500; no interest. Mr. Gerry took a deed of the property, and looked to the property and John for the pay ; I understood Gerry took up that note ; he promised to; I did not see it. That Porter note was made payable to Myers, and Rich negotiated it. I don’t know anything about Porter. Ilsley presented it to me for payment; I don’t know who was the owner of it; it was at L. Cummings’ office. I don’t know that there was any name on the notes to Gerry but mine. I had a place of business in Portland street, in this city, at that time, where I made my stopping place. I think Gerry did not come to my stopping place to get these notes renewed; I think I invariably went to his place of business. I think we never signed any of them out of his office. I suppose the money to pay the Porter note came from Mr. Gerry. When this Porter note was payable I lived in -Westbrook, about a mile from Deering’s house, out on the Saccarappa road.</p> <p>Re-direct. — You are right in understanding me to say that the Porter note was signed by me at the request of Mr. Holmes, and for his benefit; that Holmes negotiated with Gerry for the arrangement of that note; Mr. Holmes requested me to go to Gerry’s office; it was there said that Gerry would take care of it if I would give him a right-out deed of that property; he said he had made such an arrangement with John; it was made by him; I am not positive whether Holmes was there. I wanted Mr. Gerry to give me up my notes; Mr. Gerry said he would make a memorandum, and, if anything should happen to him, it will be understood what was the condition of the notes; at any time John and I would come'in, he would settle it up, but he would prefer to have Myers come in also; he said he had some matters with Myers; he would prefer all three together ; he would settle up and give up the notes; I never got those notes ; Mr. Gerry told me he had lost them, and gave me a memorandum. Subsequently to the time of giving this, mortgage, Mr. Gerry once, or more than once, anticipated me in making a request for those notes, and said he would give them up ; I did' subsequently ask him to give them up in 1863 or 1864; I was at his house; he 'gave me something to cut the notes. I have no recollection of ever seeing Myers at Gerry’s office, at any of the conversations between Gerry, Holmes and myself. At the request of Mr. Holmes, I signed the note for $2426,49, — about the same amount as the three notes that I gave Mr. Gerry, combined; it was signed by John G. Myers, and I indorsed it, at the request of Mr. Holmes; it was dated the 18th of July, 1857 ; it was given for $2426,49. I think Mr. Holmes gave Mr. Gerry $4000 of York and Cumberland bonds, as collateral; I don’t remember all the particulars. Mr. Myers gave the collaterals. Holmes and Gerry had talked over matters about Myers’ inability to pay ; I heard the conversation between them and participated in it, — that they should have something tangible from Myers to show that he was indebted so much; they thought they better make up a note of .that kind; Myers would be likely to sigu it. This arrangement was exclusively for the benefit of Holmes, to get security for him. I so understood it from Gerry and Holmes, both.</p> <p>To the Court. — This is to show the amount of Myers’ liability to Holmes. According to that agreement, that note was given for the special benefit and security of Holmes. I I so understood from Gerry and Holmes, both; we were all present. Sometime in the summer of 1864, I went with Holmes to Gerry’s house. The substance of the conversation was, Holmes offered to pay Gerry what Gerry claimed he owed him; Gerry had already fixed upon the sum. Holmes paid him $6000, — both appeared to be satisfied. There was no conversation about the amount to be paid. It had been previously arranged. Gerry delivered him a deed of his estate in Westbrook, — the same property I had previously conveyed Gerry. I have no doubt that the paper shown me is the paper; it is dated July 5; I think that was the date of the paper. 'Received of Hiram H. Dow one dollar, in full of all demands, notes and accounts.’ It was on that date that the $6000 payment was made. The $6000 was paid in a certified bank check.</p> <p>Oross-examined. — On the 18th of July, in which Myers gave his note for $2426,49, about the samo time that I gave the three notes for $809 each, it was a part of the same transaction; his note was for $2426,49; my three notes for $809 each, would come to $2427". I don’t know where the discrepancy is. It was outside of Holmes’ and my notes that we had arranged with Gerry; it was connected with it. I could not say about the precise date ; I don’t remember these were the precise notes. I should not have stated yesterday that it was for these particular notes; it was given to secure whatever indebtedness I was under to Gerry,— whether $2427, I don’t remember. I think the deed was made; I saw the check given and the deed delivered; he wanted me to see that he paid it, and I did so. I don’t recollect that I signed any other papers; I don’t recollect that I gave Gerry any paper. [Paper shown.] I signed that paper, dated July 5, 1864; I presume it was signed at the time, — it was dated Portland, July 5, 1864, — a receipt in full of all demands, and especially for discharge of Y. and C. bonds, — said bonds having been held by him as collateral, and sold by public auction, by H. Bailey. I have no doubt I gave that paper at that time; I have no recollection about it. To the question, whether I recollect that, at the same time, a duplicate receipt precisely like this, was written and handed to Holmes for him to get John Or. Myers to sign, and bring back to Gerry, — I answer, it may be so, but/1 have no recollection of it;'it was a matter I never expected to hear from again, and I did not pay attention to it. In relation to this $2426,49 note that I said I signed, I indorsed it; I could not say where it was left; the arrangement was, that Gerry was to have possession of it; I don’t know what was done; it was indorsed in Gerry’s office. If I indorsed one, I could not’say that it was secured by those $4000 Y. and C. bonds, — if secured by collaterals, it was by these bonds. Bobinson, clerk to Myers, brought those' bonds there. I understood them to be Myer’s bonds ; I suppose Myers had the money. So far as I was concerned, I looked to nobody but Holmes. I never saw the money; I heard Holmes say that Myers had the money; he raised the money for Myers as I understood it. The understanding was, that Holmes was holden to pay the money to Gerry. I think he did not give him any paper of that kind. It might have been obtained at the bank on Gerry’s indorsement ; I do not distinctly remember. I did not intend to state yesterday that they were renewed three or four days before they fell due; I had the impression that sometimes they run past a little. Gerry spoke to me several times about having these notes renewed to get money to pay the other notes. It may be, that Gerry told me where he got the money from, but I don’t remember; I could not say that he told me how he obtained it.</p> <p>When the quit-claim deed was given, it was only to be for security to Gerry for the amount due; I was to be released. I understand that Gerry took the property to secui’e him and agreed to give Holmes a deed back when he paid him what was due. I don’t i’ecollect that Gerry had any claim against John A. Holmes, except these notes. I recollect that we had a conversation at Gerry’s house, in 1860, in the spring, between Holmes, Gerry and myself. Gerry said that he did not consider that I was released from obligation from that arrangement; he wanted me to take up the notes and take back the property. I think that, in 1860, Gerry wanted me to take these notes, pay him back his money and take back the property; I refused; Holmes was present. I refused, because we made an arrangement that I was to be clear from it. John 0. Gerry was there. [Note of April 25 shown.] I wrote it myself, as well as signed it.</p> <p>Direct. — He retained all the notes*; he said he would keep them till he and I and John made a settlement; he said he would give them up at any time when John and I would come in and end matters. I was acquainted with the value of the property described in the mortgage and quit-claim deeds from me to Gerry; the fair value, at the time I made the conveyance to him by quit-claim, was four or five thous- and dollars; it was rated at $10,000; it was talked of as a hotel stand, and rated pretty high; they called it $10,000.</p> <p>[A receipt, signed by witness July 5, 1864, was put in.] I did not claim an interest in the York and Cumberland consolidation bonds, referred to in this receipt; I did not own them ; I never held them as security. I had no conversation with Myers at all; Johu Holmes made the arrangement. The bonds were never in my hands or in my control, and I never had anything to do with them, — that fact was known to Gerry.</p> <p>Gross-examined. — $4000 in bonds was deposited for the 2400 (and odd dollars.) I suppose the other thousand dollars came from Myers; I don’t know what note it was connected with. I gave the Porter note running to Myers.</p> <p>John A. Holmes, plaintiff, testified : — Mr. Gerry was my counsel in 1853. The account that I settled with him for professional services commenced in 1853. The first negotiation with Gerry for the loaning of money was in the Spring of 185.6; it was made for Myers’ accommodation. Myers owed me a large amount and he wanted me to help him to money to carry on his lawsuit; and, if he succeeded in that he would pay me up my claim. I asked Gerry at his office about it. No one was present when I made the arrangement with Gerry in reference to the loan of April 25, 1858, the $500 note. I was to give him Hiram H. Dow’s note. I had $25,000 or $30,000 in there; to nurse that along I wanted to help 'Myers to some money to carry on his suit. My credit was not good. I gave Dow a deed to indorse my notes for that purpose. In pursuance of the agreement between myself and Gerry, I procured Dow’s note and delivered it to Gerry; the interest discounted on that note was two per cent, per month or more; I think it was more. At a subsequent time in that year, I negotiated a further loan of Gerry. I think this first note was running three or four months, and that, on or before that time, we arranged that note and got two other loans. The amount of the notes was a good deal more than the money we got. The notes, I think, were $600 apiece, two of them; the other one, more than that. One was to renew the $500 note ; the other, two new loans. He never let me have any moneyless than two per cent., and sometimes more. These notes were renewed again at or about their maturity. There never was any more money paid after the first three notes were given, Aug. 19, until they resulted in the three notes amounting to $2427. The three notes were renewed in 1857, about the 18th of March, for $709,56 each. . They were renewed whenever it was necessary. About July 18, 1857. when these notes were renewed for the last time, Gerry did not want to advance any more money, unless Dow would give him some security. It was my property; nobody else .had any claim on it but Dow, and that was for being bondsman for me. A mortgage was made to Gerry at my request. Myers wanted more money. I got Dow to give John (Myers) his note for $500, for him to go into the market. Myers gave Rich his brother-in-law, the. $1000 Y. & C. bond as collateral, for my benefit, and it was negotiated. Cummings afterwards had this note. I wanted Gerry to take it up; he said if I would get Dow to give Mm a right-out deed of the place, he would take this note up; I got Dow to do it. This was my property that had been mortgaged prior. Gerry agreed that he would take up the note, and would give me a writing back to release the property to me again, by my paying him the amount due. In connection with this settlement, one inducement I had to let Dow quit-claim to Gerry was, that he should release Dow from all his liabilities ; upon that, I consented to do it, upon Gerry giving me a bond to release the property upon my paying the debts. I expected he would release Dow and then give me a bond, but he said it would make it the game as a mortgage; he said he would give it at some subsequent time, some future day; so that he refused to give me a bond at that time, and never did give me one.</p> <p>[Paper shown witness, marked " A,” dated August 18, 1861.] " It was signed by Elbridge Gerry and myself, and was taken up July 5, 1864.” [The paper x'ead.] "My impressioxx is, that the $4180 took in these three notes of $809 each; it took in the $500 Porter note; two per cent, per month iuterest was included upon these notes; we made that settlement and agreed to call it twelve per cent, per annum. Previous to this, the interest on the notes was two per cent, per month.</p> <p>That xxote dated Portland, May 22, 1863, for $732, on six months from date and intex’est, was given in the settlement of his accounts against me for professional services. There was a compromise, deductions made, and some other little matters settled. He took my note for the $732 ; $632 was the result of the settlement.</p> <p>Gerry & Robinson’s bill, commencing 1859 and extending down to June 15, 1861, for $145, receipted by Gerry & Robinson; this bill was in addition to the other. I never-gave any note on that. I think it must have been settled in 1864.</p> <p>Gerry, kept hurrying me up about the matter; he told me if I would give him $6000 in cash, he would release my property and give me ixp these notes against Myers and the ■ rest of us; that was prior to the 5th of July, 1864. I had an interview with Gerry previous to July 5, 1864, and he told me he would release my property and give up all these documents if I would pay him $6000, and nothing less. I went and made arrangements to get my money. I gave the check to Gerry and got a deed of the property. I got a certified check that he had deposited for his credit, $6000, in cash. I carried that check to Gerry myself; Dow went with me. I received paper 'A,’ Dow’s three $809 notes, and mine of $672, the same day that I paid him $6000. He gave me a deed that day. The history of the transaction {ibout a note for $2426,49, signed by Myers and indorsed by Dow, as between me and Gerry, is this : — I had been advancing Myers this money and had got nothing from him to show for it. I wanted to get Gerry’s advice how to get something. He told me he would help me do it. I got Myers to go to Gerry’s. We got Myers to leave $4000, in bonds. We got Dow to indorse the note, so as to make John more anxious to pay it when it was out, and he did so. It was not for Gerry’s benefit at all; it was for my own entirely. He had ample security for his money three times over. Before doing this I had conversations with Gerry upon the subject. I got it upon his recommendation and advice. The note was given for my own benefit and nobody’s else, and the bonds were pledged for my particular benefit. Gerry never asked me for any more security for the loans he had made, than my property, which he held through Dow’s convej^auce. I never saw the time that I would take less than $10,000 for that property. Myers never paid a cent of his indebtedness to me. From the best information I can get he is dead.</p> <p>Cross-examined. — I think I was not liable for any of the April or August, 1856, uotes, through my name on the notes, but I had given security for these notes. My impression is that 1 did not sign any of the notes that have been testified to. I got Dow to sign them for me; he gave his notes for me. My name was not on the $2426,49. That note was made payable to Gerry. I did not say Dow indorsed it. Previously I got Dow to indorse the John Myers note for $2400. I think it was made payable to Gerry. Dow did indorse it at my particular request for my benefit, with the bonds, to make Myers more certain to pay it. I think he did. [Note shown, $2426_,49, July, 1857, payable to Elbridge Gerry.] I think that is the note. I say I don’t recollect that I saw him indorse it; it was my request that he should do it, and that was the understanding that he should, because we wanted to make Myers more sure to pay •it. The bond was left for my special benefit. Gerry had nothing to do with the note or bond. It was made payable to Gerry because Gerry advised me so. He advised me to let it be payable to himself and let Hiram H. Dow indorse it. I could not get a settlement with Myers, because Gerry would not give me up the note. I got Myers to sign it aiid carried it to Gerry. F. W. Robinson wrote the note. I think ho carried it to Gerry with the bonds. It was understood by Robinson, Gerry and Dow, that that was for me. I had Gerry’s honor to show that the $2426,49 was mine and not his. He was my adviser and counsellor. It was left in Gerry’s hands so that Myers would pay it to him. I don’t know about the few cents difference in the two notes. That note was given for the amount I owed Gerry. I had given him a deed of my property to secure him. The note was written by Robinson at my request. I directed him how to write it. I directed him to make it payable to Elbridge Gerry; I am not positive. I supposed Gerry would give it to me, but he did’nt. The $2426,49 was all that Myers owed me on lids matter, but it was not all he owed me by $30,000. He took Gerry’s receipt for the bonds and gave it running to Myers and Myers gave it to me. I have got the receipt here.</p> <p>That matter has not been adjusted.</p> <p>That $6000, or more, is behind yet. Dow gave his note for $2427. I would not say it was the same time. It was for the same debt and about the same time. I got all this money for myself to loan to Myers. When I applied to Gerry for this money I told him it was for Myers. E. O. J. Smith was one of the counsel; I don’t know but what he was the only one.</p> <p>As to what it was that Dow indorsed for Myers, when, at the same time, he gave his own.note for the same : — I got Myers to give his own note for the amount of money that I let him have, and got him to put up $4000 bonds as collateral ; got Dow to indorse, so as to make Myers more sure to pay it for my benefit. Myers gave his note for the same amount, because it was the amount of Myers’ indebtedness to me. Myers gave his note for what I owed Gerry; he gave his note for more money than he received. I raised this money for Myers at Myers’ request. The notes were signed by Hiram H. Dow, because Gerry would not take my notes, and would take Dow’s. Dow and I are cousins, and married sisters; he has indorsed for me more than $200,000. He had nothing but my word; he called it good, and it is now. I had his honor to deed back to roe if I cleared it. The Porter note I got 'Dow to sign; he never signed any note for Myers.</p> <p>Gross-examined by Mr. Gerry. — I should think very likely that I applied to you several times before you consented to take that $500 note; I do not recollect anything definite about it. You gave me the money for that note in your office. After the first note I recollect there was something said about a widow woman furnishing money. I afterwards learned it was Luther B. Dow’s widow. I was sometimes present at the renewal of the notes and sometimes not; they were sometimes renewed a few days before payable, to please you. I never knew you to indorse Dow’s note in my life. I could not recollect that you refused Dow’s note; I thought you were rather fast to get it. In case of renewals you always spoke to me invariably. I always went to Dow and he renewed them at my request, and nobody’s else. I don’t know how much< money I obtained on the 18th of August, 1856.</p> <p>I conveyed this property to Hiram H. Dow a year or two before these notes were given. I think it was not till 1855 or 1856 that Dow began to sign notes at my request, for Myers’ benefit. I sold it out-right to Mr. Smith, for $6000, because I was obliged to pay you the money. I could sell it to-day, if I* owned it, for a good deal more than that.</p> <p>Direct. — I myself received the money of Gerry, at the different times the loans were made. Myers had never anything to do with it. I never had a cent security from Myers for any money that I loaned him, until he gave these notes secured by the consolidation bonds.</p> <p>Dibridge Gerry, the defendant, called for the defence, testified: — Sometime just prior to June, 1855, Holmes came into my office with John G. Myers, and introduced him to me. . Myers stated at that time, that he wished to procure a loan of money, and desired me to assist him in procuring that loan of money; he wished to procure the loan of money upon a claim that he then had against the York & Cumberland Railroad. After conversing with him, I told him I was willing to assist him, aud asked him what he desired me to do ; he requested me to go to Portsmouth and Boston and see if I could raise some money on this security. I went to Portsmouth and Boston for the purpose of trying to negotiate a loan for him. I failed to get any money, and frequently from that time to the 25th day of April, 1856, Myers, and Holmes for Myers, made application to me to assist them in some way to get some money. Finally, about the 25th day of April, 1856, Holmes ánd Myers, or Myers alone, came to me and made a very urgent request that I should do something by which they could obtain a small amount of money for the purpose of a railroad lawsuit, his lawsuit with the St. Andrews Railroad. The particulars were stated to ihe at the time, and they made the case a matter of such necessity, and Holmes so pressed the matter, as a friend of Myers, that I understood it to be a great accommodation if they could get some money. Finally, I consented to indorse a note for $500. I so told them, that I would indorse a note for them and see if the money could be obtained at the bank. I indorsed the note. I think I carried it to the bank myself, but I am not certain about that, at any rate, it was carried to the bank and the money was obtained at the bank on that note. The note was discounted at the bank, and, from the money that was obtained at the bank, I deducted one per cent, for my indorsement of that note, and this was assented to by Myers and Holmes, and they were very much pleased to obtain the money on these terms. I told Holmes and Myers both, that I had no money of my own, that I could possibly loan or furnish.</p> <p>The money was obtained at the bank and delivered to these parties after a deduction. I don’t know to whom. I don’t recollect. It was delivered either to Holmes or Myers. I don’t know which of the men, but know they were both together. Just before this note became due Myers applied to me again and wanted some more money, and wished me to indorse Dow’s note again and get some more money. I finally indorsed three notes of Dow, two for $600 each, and one for $623 ; these notes, two of them, were indorsed by me and the money obtained out of the bank, as before, the other was indorsed and delivered to Mrs. Luther B. Dow and the money obtained of her; a part of that money was appropriated to pay the note that had previously been given, when it matured, the note of April 25 ; the balance I delivered to Myers himself, in my office. One per cent, for my indorsement was -assented to and was agreed to, which made the interest on the note, so far, about 1£ per cent, on the notes. The note which was delivered to Mrs. Dow, was i-enewed from time to time, with my indorsement, up to July 18, 1857. Mr. Dow made a new note, I indorsed it, handed it over to Mrs. Dow, and she gave me up the old note. I do not distinctly recollect how often these notes were renewed. I have no minutes of these notes, they were renewed on all occasions just, before they became due; I state the renewal was procured just before due, with the view that they might be negotiated to meet the payment of these notes. The reason why the old notes were left in my hands is that I had not the notes at the times the renewals were made, that I obtained the notes after the renewals were made. I can-celled them and laid them away, that’s the reason they were left in my possession and not given up to Mr. Dow; he never called for them, if he had, I should have given them up to him.</p> <p>The $600 notes of August, 1856,'were discounted at the bank. After that time they would not take Dow’s note at the bank at all. I failed to get Dow’s note discounted at the bank. The other two notes I got Mr. J. J. Brown to negotiate with my indorsement upon them, and he carried those notes along by renewals up to July, 1857, the time the mortgage deed was given, at any rate, with my indorsement.</p> <p>I paid Mr. Brown one per cent, for the money. I took one per cent, for my indorsement. I never charged a cent over that; sometimes I think it was less, but never in no instance whatever did I charge over that.</p> <p>Previous to July, 1857, I began to feel very uneasy in regard to Dow’s notes ; they Avere very difficult to negotiate at that time, and I called upon Dow and Myers to tell them that these notes must be settled up in some way, that I wanted to get my name off from them, or have them secured. I saw Myers and Doav in regard to the matter, and have no doubt that I talked to Holmes in relation to it. Finally, Myers and Dow, and Holmes,-perhaps. I did not call upon any of them except Dow, because he was the only man I had any legal claim against up to that time.</p> <p>Finally, it was proposed that Myers should give his note for the money that had been procured on the previous note, and was to pledge, as collateral to his notes, $-4000 of York and Cumberland bonds, and that, also, Dow should give his notes for the same amount, and give a mortgage deed of the place that he then owned in Westbrook, and, that the mortgage and the notes should be held as collateral to Myers’ note and bonds.</p> <p>That arrangement was carried out, that was about July 18, 1857. Both of those notes were left in my possession; Doth notes were given to me and I was to hold them as security for the debt, but, of course, if Myers’ note was paid that relieved the other notes; there was a slight discrepancy between these notes. I recollect distinctly the difference was, that I paid for the recording of the mortgage deed, and that was added into Dow’s notes. This note embraced all the money that had been obtained for Myers up to that time, but I want to state here in connection with this, that sometime between the first loan and the last, I had let Myers on his own note have some small amount of money. It was in the neighborhood of $200, and I think it was $250. The amount I have not got. It was in the note of July 18, 1857. That was also embraced in the Myers’ note. It was lent money with no interest of any kind charged. Nothing was embraced in that settlement except what was against Dow and Myers.</p> <p>Soon after this transaction of July 18, 1857, Dow told me he had been sued on one of these Myers’ notes, as he called them, and he wanted I should settle it. In the first place he wanted me to pay that note and another note of some $300 or $400, I do not recollect the precise amount. I declined to pay the other note, but finally told him, if he would give me a quit-claim deed of the property, I would pay this note and interest and cost upon it. That was the deed of the place in Westbrook that I had a mortgage on. The deed was made, delivered to me, and I paid the note, interest and cost, to E. L. Cummings, who had the note in his office and sued it. About the notes in the mortgage, — nothing was said about them, one way or the other. I told Dow, at the time, that I did not want the property, at any rate whatever, nor at any price; it was not property that I wanted. I told Dow that the reason that I wanted a quitclaim deed, was to prevent this from being a mortgage. Either at that time, or subsequently, I told him that I was ready, at any time, to give any third person a writing or bond, any oue he might suggest, to convey the property on payment to me for what I had already procured for him on the notes. For the amount of the notes and the money I had paid out.</p> <p>Holmes and Dow came to my house, into my room where I was confined, and my brother, John C. Gerry, was there with me. Dow remarked, when he came in, that he had come up to see about our affairs. He replied that the notes had been paid by the quit-claim deed. I told him I did not so understand it, that I supposed he was to take up the old notes by payment, or else, if they were not taken up, there were to be new notes, and I was to give a bond to some third person that, when these notes were paid, the property should be conveyed. I mean the mortgage notes and the $500 Porter note.</p> <p>Mr. Dow repeated, in words, that the notes were paid, that the property was mine, and, not only that, but the bonds that I had as collateral; that was really what the controversy was about, that was spoken of here, by Holmes, yesterday. The bonds were relieved and he wanted the bonds. Said I, Mr. Dow, you consider this property unconditionally miue. He said yes. I asked him who was to pay me rent of the property since the quit-claim deed had been given. Holmes was present in the room and heard the conversation. Dow replied, he supposed the man who occupied it, aud looked to Holmes and smiled. I then turned to Holmes directly, and asked him if he so understood this transaction, that he was to pay me rent, or the property was mine. He said he did, and replied that he was ready to quit the premises at an hour’s notice. I then said, Mr. Holmes, I then notify you on the spot to quit those premises forthwith, and immediately Dow and Holmes left, and, from that time forward, I treated that property as my own, and in no other way.</p> <p>A few days after that, I saw Myers and Holmes together, and then I communicated to Holmes that Myers had proposed .to me that, if I would lot him remain there on the place, not turn him off, as I had notified him to quit, that the bonds should remain as collateral security for the rent, that he would allow his bonds to remain as collateral security for the rent. We did agree to that arrangement until I returned, until some future arrangement was made between Holmes and myself. Holmes and I then agreed that the rent should be $300 per year. That is the reason why the rent runs back a year behind the paper. It goes back to the time that Holmes and I agreed upon the price of rent. It was agreed to be $300 per year.</p> <p>I went to Virginia and was gone some months. I returned in the fall of the. same year, 1860. Matters remained in this state until August 18, 1861. Holmes came to me and proposed to buy the place of me, and I was exceedingly anxious to sell it to him or anybody else.</p> <p>We subsequently made a contract in writing; that’s the contract of August 18, 1861. Holmes and Dow stated that contract was given up; there was no giving up about it, he had one and I had one, the amount named in that is the consideration, the amount to be paid was made by adding the rent of the property, from the time of the quit-claim deed up tq that time, and I made Holmes a liberal discount from the rent at that time.</p> <p>The next transaction that I had with Holmes occurred in May, 1863. I had several small notes against Holmes and an unsettled account against him for professional services, and I had also a $500 York and Cumberland bond,, which he had left with me as collateral on these small notes, my accounts were getting outlawed and the notes were getting outlawed, and I called upon Holmes to come and settle them up. We settled the professional account, we cast the interest upon the small notes, and the amount of the notes and interest was added to what I agreed to take for the professional account, and the two sums together, the notes and the professional account, was put into a new note of $732. The account was $500, and the notes and interest must have been $232. All the demands and claims Holmes then had against me were settled and cancelled, of every name and nature, and a receipt in full of all demands, was taken at that time. I have one somewhere. "Portland, May 22, 1863. Received of Elbridge Gerry one dollar, in full of all demands. John A. Holmes.” This $500 bond was to be mine. I was to sell and dispose of it, at my own election. I was to appropriate the proceeds of it upon the payment of this $700 note. The bond was pledged to secure the small notes, collateral to the small notes which were put •into the $700 note.</p> <p>At this time it was agreed between us, that I was to sell the $5000 bonds just when I pleased, and as I thought best,, and, whenever I did sell them, the proceeds of them was to go towards the rent on that place. In pursuance of the original agreement of Myers, to apply the proceeds to the rent. It was left entirely with me. Holmes stated, over and over again, that I could dispose of the bonds whenever I pleased, and as I pleased, without any sort of reference, one way or the other, to Myers or himself. I did’nt choose to do that way; I wanted to avoid any question, but, for the purpose of settling all the difficulties in regard to what the bonds might be worth, I caused them to be advertised and sold at public auction, giving thirty days notice, or more, in the newspapers of this city.</p> <p>I caused them to be sold, and authorized Robinson, who was a broker, if the bonds went less than a certain sum, it was less than twenty per cent, some eighteen per cent, on the bonds, that if he would buy them in and did’nt want to keep them at that price, I would take them off his hands. I think it was eighteen per cent. They sold for less than the sum named, consequently he bid them in. He bid them off at any rate. Robinson bid off the bonds, and kept them until this assessment was made a year ago last October, I think, and then turned them back upon my hands.</p> <p>I showed Holmes the account of Bailey’s sales. Some days previous to July 5, 1864, Holmes came to me and said he wanted to buy that property out there, and square all the claims that I had against him. I told him I would sell it to him and should be very glad to settle up with him. In a day or two he called, and I had in the mean time taken the rent on the place, at $300 a year, and cast the interest on it at six per cent, at the end of each year in succession.</p> <p>I have the original paper, upon which the final settlement was made; the rent and the interest, from the date of the quit-claim deed, to the day I sold it to Holmes, amounted to $2517,40. I called the insurance during that time $100 for seven years, for what I paid out. The $732 note was computed at six per cent, and no more, and amounted to $783,67, and Gerry and Robinson’s bill for professional services was $208,81. The items amounted to $3609,88. From this $3609,88, $757,73 was deducted, which was the proceeds of the sale of all these bonds, $5500 of them. After deducting $757,73, it left a balance duo me of $2852,15, that was the amount due from Holmes. That $100 was put in as a basis of the sale, but it was not an indebtedness from him to me.</p> <p>Now add the real estate to it, $3147,85, that’s what I called the real estate at the time, and that makes an aggregate of $6000. T had previously offered to sell this to Holmes for just what it cost me, but I told Holmes at that time, that I could not then sell him that property so cheap as I could years ago, for the reason, that the horse railroad had made it more valuable, and also, if I took my pay in currency, that I could not take the money and invest it in any other property without a great loss. This property, at the time it came into my hands, at the price it cost me, at $3000, was property that I did not want at that price. I have called it in round numbers $3000.</p> <p>He looked the figures over; he looked them all over at the time and never made the slightest objection to the amount of the sale of these bonds, but what it was all right, acquiesced in the manner in which it was made, as being in conformity with our original agreement, and in pursuance of that, Dow gave that receipt which was shown here yesterday, in full. As one of the bonds came directly through 'him (Dow) and my wife wrote a duplicate receipt for Myers to sign, of precisely the same character. When he did that the thing might be closed up. He took that receipt and promised when he went away to get Myers to sign it or return the receipt to me. Upon that condition I was to give him up the Myers note. The reason why that note was not given up at the time, was because he had no orders from Myers for it; I was not authorized to do it, that was the reason the note was not given up at that time. He never brought me the order nor never brought me the receipt back. Hiram H. Dow was with him when the sale was consummated. The payment was made by a certificate from the cashier of the Mechanics’ Bank, that Hiram H. Dow had deposited $6000 to my credit. John Holmes’ name was not mentioned in it.</p> <p>At the time I took the mortgage, July 18, 1857, I was on the $809 notes. I procured the money to take them up of Richard Jenness, of Portsmouth, N. H. I borrowed the money of him, every dollar of it; with the exception of the small notes that I have testified about. I have never loaned any money to John A. Holmes during‘the periods of time that have been testified to. I might have let him $10, $20 or $40 for a few days. From April 25, 1856, to July 5, 1864, I have no recollection of loaning him any money where I had any security. I lent him no money, that has been mentioned in this transaction, during this period of time except the small notes.</p> <p>I will state as a fact that occurs to me, that, when the deed was made to Holmes, the deed of July 5, 1864, he wanted me to put the consideration at $10,000. I told him it was absurd and I would not do it, but I finally consented to call it $5000 and the consideration was merely arbitrary, without any reference to what was paid.</p> <p>John A. Holmes’ name I never had on one of the notes from April, 1856, to July, 1857. I never knew him in the transaction except as a friend to Myers and Dow. At the time this conveyance was made, this account of Gerry and Robinson, was settled. The $732 note was given up/ Hiram H. Dow’s receipt was given at that time, when the deed was given, in Holmes’ presence.</p> <p>Much other evidence was put in. Agreement " A.” was as follows: —</p> <p>"I, Elbridge Gerry, hereby agree to release to John A. Holmes, all my title and interest in and to the real estate conveyed to me by H. IT. Dow’s deed, dated Aug. 8, 1857. Also deliver up to him three several notes signed by said Dow, dated July 18, 1857. Also deliver up to him, on the order of John G. Myers, and the surrender of a certain receipt given by said Gerry to said Myers, for certain York & Cumberland Railroad bonds, the note of said Myers, dated July 18, 1857, and four bonds of $1000 each, of the York & Cumberland Railroad, called consolidated bonds. Also give up to said Holmes one other note signed by said Dow, dated June 27, 1857, and a $1000 York & Cumberland consolidated bond, upon the following conditions: — Provided always, that the said Holmes shall pay to said Gerry $1180 and interest, within six months from the date hereof, and also all' taxes now assessed or that may be hereafter assessed on said premises, and all money paid hereafter by said Gerry for keeping the buildings insured on said premises, and also produce the order of the said Myers for the note of the said Myers before mentioned, and also for the four one thousand dollar bonds before mentioned, and cause to be surrendered to the said Gerry the receipt before mentioned, given by the said Gerry to the said Myers, for four of the bonds aforesaid, all of which conditions the said Holmes hereby promises and agrees to perform and fulfil, as conditions on his part.</p> <p>" And it is further agreed and understood by and between the said Gerry and said Holmes, that in case the said Holmes shall fail to pay the money as aforesaid, and perform the conditions as aforesaid, that the said-Holmes shall pay as rent for the use and occupation of the premises aforesaid, at the rate of three hundred dollars per annum, said rent to be paid from and after the first day of May, A. D. 1860, so long as the said Holmes shall continue to occupy the said premises, and the tenancy of the said Holmes shall be regarded as terminated on the performance of the conditions or the failure to perform the conditions to be performed on his part, as before mentioned.</p> <p>"Portland, Aug. 18th, 1861.</p> <p>"Elbridge Gerry,</p> <p>"John A. Holmes.”</p> <p>The verdict was for the plaintiff, for more than was claimed, whereupon the plaintiff filed a remittitur for the excess.</p> <p>The defendant alleged exceptions to the ruling allowing the amendment.</p>

<p>Bill in Equity, heard on bill, answer and proof.</p> <p>The bill substantially alleged that, in April, 1863, the complainant recovered judgment against one Seward W. Porter for §8452,23 and costs, for a debt which accrued prior to Jan. 12, 1855; that, on Jan. 12, 1855, the judgment debtor was seized in fee and severalty of certain parcels of land, described in a deed from said Seward to the respondent, dated Jan. 12, 1855, and by said deed he conveyed said laud to the respondent, for the nominal consideration of $10,000; that said conveyance was made by said Seward for the purpose and with the intention, on his part, of defrauding and delaying the complainant and other creditors, and to secure said property from attachment and execution, and that -the respondent, in receiving the conveyance and continuing to hold the same, combined and confederated with said Seward in his said purpose and intention; and that said conveyance was without any valuable consideration.</p> <p>The bill further alleged that, on Jan. 12, 1865, the complainant duly extended his execution upon a certain portion of the premises, and the levy was duly recorded; and that the respondent has never surrendered possession of the land levied on, but unjustly withholds the same.</p> <p>That, at the time of said conveyance, said Seward was insolvent, and his insolvency known to the respondent; that, about the same time, said Seward, with the knowledge of the respondent, conveyed away all his attachable property; that the conveyance to the respondent was made to, and accepted by him, with the understanding that he should hold the same by secret trust for the use, and subject to the direction of said Seward; that, pursuant to such understanding, the respondent did, on Nov. 27, 1861, by deed duly acknowledged, &c., in accordance with the direction of said Seward, and without any valuable consideration, convey a portion of said real estate, other than that levied upon, to the wife of said Seward.</p> <p>The prayer of the bill is, that the respondent be compelled to convey to the complainant in fee, the legal title of the real estate levied upon; and for general relief.</p> <p>In his answer the respondent denied all knowledge of the complainant’s claim against said Seward, the judgment and levy, and prays that the complainant be required to set forth the origin and nature of the claim and establish its validity as well as that of the judgment and levy.</p> <p>The answer further alleges that the premises upon which the alleged levy was made, was formerly the homestead of Nehemiah Porter, respondent’s father, which, through divers conveyances, had come to Seward W. Porter, respondent’s brother; that the respondent, a farmer, having been reared upon the premises, was strongly attached thereto; that, while the same was held by said Seward, the respondent .repeatedly tried to purchase it, and finally succeeded Jan. 12, 1855, giving his notes therefor.</p> <p>That, at the time of such purchase, said Seward was a merchant in Portland, engaged in an extensive wholesale West India business, and the respondent believed him worth $50,000 above his liabilities, and had never heard any rumor to the contrary; that he did not purchase the premises with the intent charged, nor did he suspect that Seward had any such intention; that he purchased the same in good faith, having no suspicion of said Seward’s pecuniary embarrassments ; that he had no knowledge of other conveyances, as alleged in the bill; that the conveyance was not made or accepted by him to hold by secret trust, for the use and subject to the directions of said Seward, but that the respondent purchased said estate unconditionally, and for his own exclusive use and benefit.</p> <p>That, at the time of the conveyance to the respondent, by said Seward, the said premises were in the occupation and improvement of their brother, Rufus Porter, who was formerly the owner thereof, and who had conveyed to said Seward in Dec., 1853, remaining, however, all the time in possession thereof; that, previous to his purchase, the respondent was never informed of the nature and purpose of the conveyance by said Rufus to said Seward; that, at the time of his purchase, the respondent supposed and believed that said Seward was the real sole and actual owner of said estate, free and unencumbered by any trust, either secret or express, and, so believing, he purchased it in good faith; that, soon afterwards, he informed Rufus of his purchase and payment therefor, and desired him to surrender possession of the premises; that Rufus then, for the first time, informed him that said estate was conveyed to said Seward in trust, to hold as security for his certain claims and demands, and his liabilities on account of said Rufus, and that the same was to be reconveyed by said Seward on discharge of such indebtment and release from such liabilities; that said Rufus was exceedingly angry with said Seward, charging him with a violation of his agreement in relation to the estate, and absolutely refusing to yield possession thereof to the respondent, or to recognize him as the owner thereof, alleging a readiness to pay all Seward’s claims against him, and demanding of the respondent a conveyance of the pi’emises; that, being unwilling to become involved in a family quarrel with his brother, the respondent did not take legal measures to obtain possession of the premises, but trusted that some satisfactory arrangement could be made by which the rights of said Rufus could be protected.</p> <p>That, after the conveyance by said Seward, he removed out of the State, so that the respondent was unable to have any personal interview with him touching the premises, and he has never seen him since; that said Rufus persisted in retaining possession, claiming to have the better equitable right, and offering to pay the respondent the amount he agreed to pay to Seward, and procure the respondent’s said notes; that, believing Rufus’ statements to be true, and that the estate was held by said Seward in trust and as security only, the respondent was unwilling to oust said Rufus, or deprive him of his beneficial interest; that, although at the time of his purchase, the respondent was desirous of occupying said estate, yet within a short time afterwards, by the illness and decease of his wife and the marriage of his only daughter to a resident in Camden, with whom he was desirous of living, he was ready and willing to release to said Rufus all his interest in the estate, oh being paid the amount paid by him and for his time and expenses about said estate, and so informed said Rufus.</p> <p>That he is informed and believes, that said Seward and Rufus adjusted all matters between them, and thereby said Rufus obtained the respondent’s notes, and, at the request of both, the respondent conveyed a small portion of said estate to said Seward’s wife, and, on Nov. 24, 1857, the remainder thereof to the said Rufus, receiving therefor his said notes, and the agreement of said Rufus to pay him for time and expenses aforesaid, which agreement not being fulfilled, the respondent sued therefor and the suit was settled in June, 1863, by said Rufus’ note for $1044, and secured by mortgage on said premises.</p> <p>That, prior to said mortgage, said Rufus mortgaged the premises to J. O’Donnell, and thereafter, to wit, on June 22, 1863, convoyed said premises, subject to said mortgages, to one Nehemiah Porter, who has ever since been in possession.</p> <p>The proof tended to establish the material allegations in the answer.</p> <p>The claim that Seward held the property as collateral security cannot affect the case. The legal title being in Seward was subject to the claims of his creditors. The assignment by which he held it in trust, if any existed, was but verbal, and not binding upon Seward or his creditors, and the conveyance to Stephen shows he did not recognize it. Had Stephen conveyed directly to Rufus, in consequence of any trust, it might have been valid; or, if Stephen’s deed to Rufus had been recorded prior to our levy, it might have purged the fraud; but such were not the facts.</p>

<p>Upon the condition that his bounty money should be deposited for his benefit in the Portland Savings Bank, the trustees of the State Reform School permitted one of its inmates to enlist as a volunteer in the military service of the United States, and thereupon they deposited his bounty money in the bank, in his own name, upon the following special condition prescribed in all such cases, and entered upon the books of the bank, viz.: — “ All bounty money received by said boys, shall be deposited in the Portland Savings Bank, and there remain * * till they have severally reached the age of twenty-one years, and no part of said deposits is to be withdrawn without the consent of the trustees of the State Reform School.” In a trustee process, brought by a creditor against such volunteer, for necessaries purchased after his discharge from the service and before he had . attained his majority: — Held, —</p> <p>1. That the money is due absolutely to the defendant and is payable to him or his order on his reaching the age of twenty-one years, without the consent of the trustees of the Reform School; — and</p> <p>2. That the bank is chargeable as trustee, and .will be compelled to pay the amount charged, when the same is payable according to the terms of the deposit.</p>

<p>A mortgage of an apothecary’s stock, consisting in part of intoxicating liquors, is a sale upon condition of such liquors, and a violation both of the spirit and letter of § X, c. 33, of the Public Lavs of 1858.</p> <p>The mortgagee in such a mortgage cannot maintain an action of trespass de bonis against an officer for attaching the stock covered by'the mortgage, as the. property of the mortgager, unless the latter vas duly licensed under c. 33.</p>

On Facts agreed. Assumpsit upon two promissory notes, signed by the defendant and payable to the' plaiutiff; one dated Dec. 22, 1859, for $375, and the other May 12, 1860, for $700, payable on demand with interest. Writ dated May 10, .1866. Plea, general issue, with specifications of defence.

<p>The complainant in a bastardy process need not state during travail the time . and place when and where the child was begotten.</p>

On Report. Libel to annul a marriage between the parties under R. S., c. 60, §§14 and 16. The respondent seasonably claimed a trial by jury, which the libellant resisted on the ground that there is no authority in the constitution or statute for a trial by jury in this case.

<p>On Exceptions.</p> <p>Trespass de bonis, tried in the Superior Court for this county, at the September term thereof, 1868.</p> <p>The case was tried by Goddard, J., without the intervention of a jury.</p> <p>The bond in the replevin suit mentioned, was made to Jonathan Dow instead of George W. Parker.</p> <p>The Judge ruled that this action is maintainable, and ordered judgment for the plaintiff for the value of the piano and costs; and the defendant alleged exceptions, and thereupon the case was duly certified to the Chief Justice of this Court, in accordance with c. 151, of Public Laws of 1868.</p> <p>The remaining facts sufficiently appear in the opinion.</p> <p>This action is maintainable. R. S., c. 96, § 18 ; Parker v. Bimonds, 8 Met., 209 ; Simmons v. Bradford, 15 Mass., 82; Heppel v. King, 7 Term R., 370; Tuck v. Moses, 54 Maine, 120.</p>

<p>Under R. S., c. 119, § 1, when arson is committed by setting fire directly to the dwellinghouse of another, the indictment need not expressly allege the intent.</p> <p>Aliter, when the crime is committed by setting fire to any building adjoining the dwellinghouse, or to any building owned by the accused or another.</p>

<p>On Report.</p> <p>Dower, by the'demandant, who had been legally divorced from the bonds of matrimony between her and the defendant, Nov., 1862.</p> <p>The three following letters from F. O. J. Smith, demand-ant’s attorney, to the defendant, were read as evidence of a demand: —</p> <p>"Aug. 21, 1863. — Can we agree on either three of the following persons, as appraisers to set off dower in the severa! parcels of real estate, to which your former wife is entitled.” [Here follow the names of seven persons.] "If so, please inform me. If not, say on what names will you agree, and save proceedings in Court on the subject.”</p> <p>"Sept. 18, 1863. — In lieu of other proceedings for setting off the dower in your several parcels of property in favor of your former wife, can we agree on either of the three following persons as appraisers ?” [Here follow the names of fifteen persons.] "It seems as if,from these we can agree on three and proceed immediately to a set-off. And what can we do respecting the property in Massachusetts, and in Ohio? Can we «agree amicably for set-offs there ?”</p> <p>" March 19, 1864. —I find a writing of reference between you and Mrs. Cynthia J. Merrill, for setting off dower, and met with an entirely new proposal, to which we cannot consent, viz., the set-off to be either in separate parcels, or in one parcel. This we cannot consent to, and if you insist on it, that ends a reference. Please inform me before Monday noon of your decision.”</p> <p>Also a letter from Shattuck to Smith as follows :</p> <p>"Oct. 17, 1863.</p> <p>"Your note of the 18th ult. did not reach me until the 13th inst. I respectfully beg to say, I will agree that John Read, Jonas Raymond and Hosea Kendall, (of Portland,) may act as appraisers, or commissioners, in setting out her dower to my former wife in my estate in Maine, and am ready to complete the arrangement at any time. In regard to your proceedings in other States, I have nothing to suggest.”</p> <p>It appeared from evidence introduced by the demandant,, that there were several personal interviews between her attorney and the defendant concerning the matter of setting off her dower, but as to the demand the attorney testified : " The demand I made of dower for the demandant was in the form of a letter. Cannot state what description of the lands there was in my letters to Shattuck, if any, but he understood what lands were referred to.”</p> <p>After the testimony was all in, the case was withdrawn from the jury and submitted to the full Court.</p> <p>1st. Demand of dower may be made by parole. True v. Stubbs, 35 Maine, 92; Curtis v. Hobard, 41 Maine, 230. It may be proved by admissions of the tenant, or it may be inferred from facts and circumstances. True v. Stubbs, above.</p> <p>2nd. A request or demand for dower may be laid at one time, and proved at another time. 1 Esp. N. P., 137.</p> <p>3d. In case of decree of dower by the Court, conjunctively with a decree of divorce, no demand subsequently is necessary to support, an action for dower.</p> <p>"No notice or special demand is necessary,' where the thing to be done rests equally in the knowledge of the defendant as of the plaintiff.” Farwell v. Smith, 12 Pick., 83 ; Hobard v. Hilliard, 11 Pick., 143 ; Lent v. Paddelford, 10 Mass., 230.</p> <p>4th. The demand in this case, although not needed, is proved in the testimony submitted, both in writing and by parole.</p> <p>5th. The demand, if needed, is proved to have been made within the year preceding the date of the writ, and so seasonably under the statute.</p>

On Exceptions. Petition for a new trial in respect to the specific sum decreed to the petitioner instead of alimony.

On Exceptions. Assumpsit to secure a mechanic’s lien, reported 54 Maine, 345.

On Exceptions. An action for a personal injury received from certain malefactors, while aiding the police officers of the city in arresting them. The officers being unable to arrest the offenders, requested the plaintiff, by virtue of a city ordinance, to aid them. While complying with such request, the plaintiff received a severe injury in his side, by a kick from one of the party sought to be arrested.

<p>A stipulation, that the conveyance is to be void upon payment of the sum due thereon, is one of the essential elements of a mortgage.</p> <p>By a sealed instrument, signed by both parties, the plaintiff conveyed to the defendant’s testate, certain timber as security for the former’s indebtedness to the latter, and stipulated that, if the plaintiff paid such indebtedness according to its terms, the defendants’ testate would “transfer” said timber and “whatever proceeds thereof” he might thereafter receive to the plaintiff, discharged of all claims; that, if the indebtedness was not paid as stipulated, the defendants’ testate might “ sell and dispose of so much of said timber as shall pay and reimburse himthat, when paid by a sale of a portion of the timber, the defendants’ testate was to “transfer to the plaintiff all the timber undisposed of, free from all claims.” In trover for selling more of the timber than was necessary to discharge the plaintiff’s indebtedness : — Held, —</p> <p>1. That the contract was not a mortgage;</p> <p>2. That trover would not lie;</p> <p>3. That an action on the contract is the proper remedy.</p>

On Exceptions. Ou Dec. 20, 1855, the defendant, a citizen of this State, at St. John, in the Province of New Brunswick, sold to the plaintiffs, citizens of the latter place, 800 tons of merchantable white pine timber, to be delivered by one Josiah Adams, receiving therefor the plaintiffs’ acceptance, for £1790, on three months,'which was duly paid at maturity.

On Exceptions to the ruling of Goddard, J., of the Superior Court. Assumpsit by the payee against the alleged maker of a promissory note. Plea, general issue, with an affidavit denying the signature. The plaintiff testified that he saw the defendant write the signature to the note in suit, and that he did it by copying his name from a signature written by the plaintiff on another piece of paper, as a copy.

Bill in Equity, commenced by Ether Shepley, John Rand and George F. Shepley, trustees under a mortgage executed by the Atlantic & St. Lawrence Railroad Co., on the first day of April, 1851, a copy of which was annexed to the bill.

<p>On Exceptions.</p> <p>Indebitatus assumpsit on account annexed, as follows: "1865, Oct. 17. To advertising taxes, 2£sq., 18 w. $14,37.”</p> <p>The writ contained also a count for money had and received, and quantum meruit, for services, &c.</p> <p>At the trial at nisi prius, it appeared that one Perkins was duly elected treasurer and collector of Saco for the year 1865 ; that, at the annual meeting, the town voted an abatement to those who should voluntarily pay their taxes on or before certain specified days, and that notifications of this vote and of the time when the tax-bills were committed to him, were duly posted up in post-bills, by the treasurer, the expense of printing and posting which was paid by orders drawn upon the selectmen.</p> <p>It also appeared that, in October, 1865, after the expiration of the time for the allowance of such abatements, Perkins appointed the defendant assistant collector; that the defendant was duly qualified, and he gave bond for the faithful discharge of his duties; whereupon the tax bills of the unpaid taxes, amounting to between $17,000 and $18,000', were committed to him. The defendant then prepared a notice of his appointment, with a request that all who' had not paid their taxes would forthwith make payment thereof at his office ; and requested the plaintiffs to print a certain number of copies thereof in 'the' form of post-bills, and to insert the same as an advertisement in the newspaper published by them in Saco till otherwise ordered, and to charge' it to the town. And the plaintiffs did as requested.</p> <p>In March or April following, the plaintiffs presented a bill for printing done for the town, including the charges for the printing .ordered by the defendant, to the selectmen .of Saco; but they refused to allow the items ordered by the defendant, denying his authority to order the work done at the town’s expense. Subsequently, however, they drew an order for the post-bills, but refused to allow the charge for publishing the advertisement, although it was the usual price. The defendant also refused to pay the same.</p> <p>It also appeared that, when the printing was ordered by the defendant, he did not intimate in anywise that he would pay therefor. It was charged to the town.</p> <p>' The presiding Judge instructed the jury that the action was upon a contract. That to support the action a contract must be proved. That a contract consists of mutual promises ; that two kinds of promises are recognized in proof of contracts, one is a special promise and the other an implied promise. That the special promise is shown whei’e the parties definitely and specifically fix the terms and conditions of their contract. The implied promise is a promise implied and arising from the acts and circumstances proved in a case where no special promise is proved. They consist of such acts and circumstances as raise in law an implication of those promises necessary to complete a contract.</p> <p>That, where there is a special contract founded upon special promises, the law does not imply promises inconsistent with those. The special promise excludes the idea of an implied one. The parties having seeu fit to make their own terms and engagements, the law leaves them upon those terms.</p> <p>That, in this case, the contract being an oral contract, if any were made, it is a question for the jury to find what that contract was. That, if there was a special contract to do the work and look to the town for pay, the parties, being legally competent to make a contract, must abide by the terms of it.</p> <p>That, if there was a special contract in this case, the fact that the services rendered may have operated to the benefit of the defendant does not relieve the parties from the legal, effect of their special contract. They were competent to make it as they did, and must abide by it.</p> <p>That, if the defendant represented himself as an agent of the town and authorized to contract for them, and did so contract, and was not so authorized, he might be liable in another form of action to the plaintiffs, but not in this action, for any damage resulting therefrom to the plaintiffs.</p> <p>The verdict was for the defendant, and the plaintiffs alleged exceptions.</p> <p>Philip Eastman & Son, for the plaintiffs, contended that the instructions relative to special and implied contracts, were inapplicable, and misled the jury. Counsel cited Jefts v. York, 10 Cush., 392 ; Folsom v. Skofield, 53 Maine, 171. To the point that the action was maintainable under the count for services done, 1 Parsons on Contracts, c. 3, § 7.</p>

On Exceptions. The writ contained a count upon an account annexed for $20, without any' account; a count for same sum for money had and received; and a count in case, under R. S., c. 22, § 4, for double the value of a line fence built by the plaintiff, and the fees of the fence viewers, and it was returnable before a trial justice for this county. At the trial before the justice, the plaintiff recovered judgment, and the defendant appealed.

On Exceptions. Trespass de bonis, for taking and carrying away 515 gallons of ‘whiskey belonging to the plaintiff and stored in Biddeford, in this county.

On Report. Assumpsit, on an account annexed, for the labor of the plaintiff, and for money paid by him to several persons employed by him in January and February, 1861, in removing the snow from the highways within the limits of a certain highway district in the defendant town, of which the plaintiff had been previously duly appointed highway surveyor by the selectmen of the defendant town.

On Exceptions and Motion to set aside the verdict as being against law and evidence. Case, for personal injury to the plaintiff in consequence of his horse becoming frightened by the loud and sudden blowing of defendants’ locomotive whistle, at a railroad crossing near th'e Buxton station. The verdict was for the plaintiff, and the defendants alleged exceptions.

On Exceptions. Assumpsit for money had and received. After the plaintiff had put in all his testimony, the presiding Judge, upon motion of the plaintiff’s counsel, ordered a nonsuit, and the defendant alleged exceptions. The remaining facts sufficiently appear in the opinion.

On facts agreed. Real action. Writ dated April 15, 1868. The facts are sufficiently stated in the opinion. When an amendment has been properly made and is for the same cause of action origiually embraced in the writ, the amended writ is treated as it would have been if so made when the suit was commenced. Heath v. Whidden, 29 Maine, 108 ; Prescott v. Tufts, 4 Mass., 146.

On Exceptions. In 1864, one Lord bought two negotiable promissory notes, given by the defendants, one payable to one Wake-field, or order, and the other to the plaintiff, or order, both of which were duly indorsed by their respective payees.

<p>The word “ placo,” as used in the proviso in § 41, c. 106, of the Act of Congress of June 3, 1864, refers to the location of the bank and not to the State authority under which the tax is to be assessed.</p> <p>Such part only of a statute, as is repugnant to an Act of Congress, will be adjudged void.</p> <p>Section 2, c. 126, of the Public Laws of 1867, is consistent with' § 41, c. 106, of the Act of Congress of June 3, 1864, and must govern in this State, so far as place is concerned, in the assessment of taxes on shares in National banks.</p> <p>Sections 3, 4 and 5, being inconsistent therewith, are void.</p>

On Report. Case, to recover for the loss of 100 empty barrels delivered to the defendants as common carriers, at Detroit, Michigan, to be transported to Utica.

On Report. Assumpsit, for money had and received. The last item in the first bill of supplies was dated March 18, 1862. The Court to render such judgment as the legal rights of the parties required. The case is fully stated in the opinion. Reuel Washburn, and with him B. T. Luce, for the plaintiffs, contended that, — 1.

On Exceptions. Indictment for the larceny of a horse, sleigh, harness, and three robes. The complainant testified that the defendant hired the team to go to Minot Corner, and promised to return it within four or five hours; that, instead of going to the place to which he hired it to go, the defendant went to other places, and finally sold the property without the complainant’s consent.

<p>Prior to R. S. of 1841, actual, visible possession of land by a grantee thereof under his unrecorded deed, was constructive notice to all subsequent purchasers, equivalent to a registry of such deed; and this rule is still in force as to deeds made prior, even against conveyances made since those statutes vent into effect.</p> <p>What is sufficient evidence that land vas conveyed by a deed never recorded, and subsequently lost.</p> <p>Proof that the defendant in trespass quare clausum, and his predecessors in title, possessed, occupied and improved the land openly, notoriously and in a manner comporting with the ordinary management of a farm for more than twenty years, uninterrupted except by counter verbal assertion of title, constitutes sufficient evidence of such disseizin as will carry title.</p> <p>In the description of land in a deed, monuments govern courses.</p> <p>Repugnant calls in a deed may he rejected, when the remaining calls are sufficient and consistent with the intention of the parties to uphold the deed.</p>

On Eeport. Indebitatus Assumpsit on account annexed for seven and ffths bushels of herdsgrass seed, and money counts. It appeared that one of the plaintiffs (co-partners and merchants,) being about to go to Boston iu the winter of 1866-7, to purchase grass seed, was asked by the defendant to invest $200 of the latter’s money in hordsgrass seed, at not exceeding $4,50 per bushel, and clover seed, at not exceeding one shilling per pound.

On Exceptions. Trespass quare clausum, alleging that the defendant broke and entered the plaintiff’s close and set fire to and destroyed his barn and its contents. Trial was in March, 1867. The testimony of the plaintiff and his wife was admitted against the seasonable objections of the defendant; and the latter thereupon alleged exceptions.

On Exceptions. Assumpsit on a promissory note, brought by the payee against the makers, payable on demand and interest at nine per cent.” The action was referred to the Court, reserving the right to except. It was admitted by the plaintiff that the words at nine per cent.” were written by him upon the note after it had been executed and delivered to him by the defendants, and without their consent.

<p>The purchaser of stumpage from a mortgager in possession is liable therefor to the mortgager, when the rights of the mortgagee to the timber severed have been waived or extinguished.</p> <p>When the mortgagee, as the agent and at the request of the mortgager, undertakes to collect the pay for such stumpage, he thereby ratifies the act of the mortgager in disposing of the timber, and waives his own right to pursue it as mortgagee-of the land on which it grew.</p> <p>When the mortgagee has received the full amount of the mortgage debt, and assigned the mortgage, making no mention of any right of action on account of what had been previously severed from the realty, his rights thereto have thereby become extinguished; and no legal claim therefor can be subsequently asserted under the mortgage.</p>

<p>On Report.</p> <p>Debt on a collector’s bond.</p> <p>The principal defendant, at the annual meeting, bid off the collection of taxes for 1863, at four mills on the dollar. The town having neglected to choose him collector, he contended that his bid was not binding upon him, and claimed five per cent. The remaining facts are sufficiently stated in the opinion.</p> <p>cited Ketlar v. Savage, 20 Maine, 199 ; R. S., c. 6, § 56 ; Lowe v. Weld, 52 Maine, 588; Trescott v. Moan, 50 Maine, 347 ; Scarborough v. Parker, 53 Maine, 252.</p> <p>cited R. S., c. 6, §§ 86 and 56; Foxcroft v. JSTevins, 4 Maine, 72; Johnson v. Ooolidge, 15 Maine, 29; Golby v. Russell, 3 Maine, 227.</p>

<p>A levy upon real estate will be sustained so far as the return of the officer upon the back of the execution is concerned, if it import by necessary intendment the actual performance of all the statute requisites.</p> <p>A certificate, that the appraisers “ made oath in due form of law that they would faithfully and impartially appraise such real estate of the within named” debtor “as should be shown them to satisfy the within execution and all fees, shows a sufficient compliance with the oath required in R. S. of 1841, c. 94, § 4.</p> <p>To “ set off,” as used in R. S. of 1841, c. 94, § 24, simply means to separate or assign for the purpose of satisfying the execution and officer’s fees so far as the appraised value of the land will go.</p> <p>The return of appraisers, duly signed and indorsed upon an execution extended upon land, minutely described by metes and bounds the various parcels of land which they had examined, and specified their estimate of its value to each, concluding: “ all of the above mentioned lots, amounting to the sum” named, “the same having been shown to us by the within named” creditor, “ to satisfy the within execution in full and all fees for levying same.” The officer’s return thereon, adopted that of the appraisers, and alleged that he had seized, on this execution, the real estate above described;” that, after being duly sworn, the appraisers, “upon oath appraised the same as above appears and each lot separately, the whole amounting to the sum” named, “in full satisfaction of the within execution and all fees;” that “ the premises are correctly described;” that “ I have this day agreeably to law delivered seizin and possession of the same premises to the within named” creditor, “ to have and to hold the same to the said” creditor, “his heirs and assigns forever;” and that “I therefore return this execution fully satisfied— Held, that the officer’s return substantially states that the appraisers “ appraised and set oft' the premises, after viewing the same, at the price specified,” as required by R. S., c. 94, § 24, clause 4.</p>

On Facts agreed. Action for a breach of the covenant of freedom from incumbrances, contained in a deed of warranty from the defendants to the plaintiffs, dated March 23, 1856. Writ dated October 31, 1866.

<p>On Exceptions.</p> <p>The defendant, in his capacity of administrator of the estate of Samuel B. Cottle, late of Windsor, in the county of Kennebec, on the fourth Monday of June, A. D., 1865, appealed from the decision of the commissioners of insolvency on said estate, allowing certain claims -presented to them by the plaintiff against the estate. The commissioners were appointed by the Judge of Probate for the county of Kennebec, where administration was granted, and where all proceedings in probate relating thereto have been had, except that the commissioners were, and still are, inhabitants of Whitefield, in this county, in which latter named town the commissioners held all their official meetings.</p> <p>On September 1, 1865, the plaintiff sued out the writ in this action, from the clerk’s office for this county, declaring for money had and received, claiming $1118,80, with interest thereon from the 26th (Monday) of June, 1865, and annexing thereto the followingspecification of his claims : — " Schedule of the plaintiff’s claims sued in this action and allowed by the commissioners of insolvency June 26, 1865, viz. : — "For five promissory notes, each dated Oct. 8, 1849, signed by Samuel R. Cottle, and payable to one John Cottle, or his order, as follows : — One for $118, payable in one year from date with interest; one other for $105, payable in six months ; one other for $100, payable in one year with .interest; one other for $77, payable in ten months with interest; one other for $70, and payable in three months; on which there was due on said 26th of June, the sum of $888,54.”</p> <p>"Also an account which is as follows : —</p> <p>" Samuel R. Cottle to Bartlett Gould, Dr.</p> <p>1860. Dec. 23. To 240 lbs. of beef at 5 cts. per lb., $12 00</p> <p>Dec. 27. To 2J months labor of my son at $15 per month, 37 50</p> <p>1861. Mar. 28. To cash paid you, ten doilars, 10 00</p> <p>April 9. To 48 lbs. of corned beef at 6 cts. per lb., 2 88</p> <p>" To 11£ lbs. of tallow at 12 cts. per lb., 1 32 April 15 to</p> <p>June 28, 1862. To 2J months labor of my son, 40 00</p> <p>To eleven months and ten days labor of my son, from April 5th, to July 28th, and Aug. 9th, to March 28th, 170 70</p> <p>June 30, 1862. To labor done by my wife, to Dec. 6, 46 00</p> <p>Dec. 20, 1862. To labor done by my wife, to March 5, 1863, 25 00</p> <p>To service of my horse and wagon conveying my wife from my house to John Cottle’s, 28 50</p> <p>" On which account was allowed the plaintiff, by said commissioners of insolvency, on said 26th day of June, the sum of $230,26.”</p> <p>The defendant pleaded the general issue; but before pleading, he objected, that the action should not have been brought and prosecuted in the county of Lincoln, but in the county of Kennebec, where administration on said estate was granted. The Court ruled that the action was rightly commenced and prosecuted, the administrator being an inhabitant of this county; and overruled the defendant’s objection.</p> <p>There was evidence tending to show that the five notes, which are specified in the plaintiff’s schedule of claims, and which are not indorsed by the payee of them, were given to the plaintiff by the payee, on July 21, 1862, the promissor being then alive, in discharge of an account which plaintiff claimed he theu had against said payee. The defendant contended that there being no indorsement of the notes, and no evidence of any express promise on the part of defendant’s intestate to pay either of them to the plaintiff, the mere delivery of them to the plaintiff by the payee, under such circumstances, would not authorize this action upon them, in the plaintiff’s name; but the Coui't l-uled otherwise, and so instructed the jury.</p> <p>It appeared that defendant’s intestate died in the month of February, 1864, and said John Cottle, his father and sole heir at law, iu March following.</p> <p>The defendant neither testified in the case nor was he offered as a witness; but, against the defendant’s objection, the plaintiff was admitted as a witness generally, and, inter alia, testified (defendant objecting) as to the settlement of his account with John Cottle, the giving of the notes to him by said John, in discharge of an account of about $200,00, which he claimed was due to him from said John Cottle; and as to the services of his son and of his wife, as specified in his account, and as to the value of their services.</p> <p>The plaintiff’s wife, who is a daughter of said John Cot-tie, was admitted to testify and did testify generally in the case, against the defendant’s objection, seasonably made.</p> <p>The defendant further contended that, for the personal services of the plaintiff’s wife, the plaintiff was not entitled to recover in this action, but for such services the action should be in the name of his wife. — The Court ruled and instructed the jury otherwise.</p> <p>The verdict was for the plaintiff for $1118,80, and the defendant alleged exceptions.</p>

On Exceptions. Assumpsit on a promissory note, dated May 17, 1862, signed by a Warren Merrill and his wife Martha M. A. Merrill. The writ was dated May 21, 1866. It appeared that, at the time of the making of the note, Martha M. A. Merrill was and is still the wife of Warren Merrill, then and now living with her husband in this State.

<p>On Facts agreed.</p> <p>The plaintiffs, Moses Call and B. D. Metcalf, claimed, as joint owners of one-fourth part of brig Galena, to recover from the defendant one-fourth of the net earnings of the brig, from March, 1855, to June, 1856, while the defendant was master thereof, to wit, the sum of $337,24, the defendant having made up his accounts to the latter date, «which show $1348,96, due in all.</p> <p>The defendant did not admit the plaintiffs to be owners, unless they became such previous to che time when he became master, by reason of the following facts : —</p> <p>On Jan. 22, 1850, the brig was attached on several writs, duly sued out by his creditors, against one Isaac Taylor, of Boston, Call then orvuing one-half, Metcalf one-fourth, and Taylor the remaining one-fourth of the brig. The attaching officer took possession of the brig, and Taylor, though requested by the plaintiffs, neglected to relieve the brig from the attachments; whereupon the plaintiffs, then part-owners, gave the bond provided by R. S. of 1841, c. 114, §§ 65 & 66, in the sum of $1200, and took possession of the brig. The suits against Taylor went to judgment, and, on demand by the officer holding the executions thereon, the plaintiffs paid equally, in satisfaction of the judgments, the sum of $1200.</p> <p>Subsequently, and before the defendant became master, the plaintiffs sold their original shares, to wit, one-half and one-fourth, to Chamberlain & Foster, Miller & Hatch, and William A. Keagan. From that time to the time when the defendant left the brig, the ownership was as follows: — Chamberlain & Foster four-eighths, Miller & Hatch one-eighth, William A. Keagan one-eighth ; and, by the eustom house records, one-fourth remained, during this time, ás at the time of the attachments, in the name of Taylor; and, after the defendant left the brig, the plaintiffs sold said one-fourth for $1000.</p> <p>From the date of the bond to the time of the last sale by the plaintiffs, they claimed property in said one-fourth, under and by virtue of the bond, claiming to hold that share as security for the amount paid by them in satisfaction of the judgments against Taylor, never having any other title thereto. Their names were never in the papers as owners, nor was there any record in the custom house showing them to be such, prior to the sale of the Taylor one-fourth.</p> <p>Chamberlain & Foster were ship’s husband in 1855 and 1856, and the defendant rendered to them his account with the brig by him stated, in June 1856, in which he made due to the owners $1348,96.</p> <p>In the summer of 1856, the defendant told Call that $337,24 were due to the one-fourth claimed by the plaintiffs, that he had adjusted the whole account with Chamberlain & Foster, and promised Call to pay it soon. The defendant told his father, James Perkins, to tell Call that he had done nothing with the brig, and was unable to pay him, but that he would pay him when he got able; that he settled with Miller & Hatch, paying Hatch what money he had and giving his note for the remainder.</p> <p>If the plaintiffs were entitled to recover, the defendant was to be defaulted.</p>

<p>Tlie interest of a mortgagee of lands cannot, before foreclosure, be attached or sold on execution.</p> <p>A conveyance in mortgage to two or more persons to secure their several debts creates an estate in common, and renders the mortgagees tenants in comiruih, and not joint tenants.</p> <p>The assignee of three out of four such mortgagees may maintain a writ of entry for the possession of the mortgaged premises, against the mortgager and all claiming under him, if the interest of the fourth mortgagee has not been legally assigned to the party defendant, but remains vested in some third party.</p> <p>Judgment rendered in such case.</p>

<p>Sections 13 & 43 of c. 76 of the R. S., contain no exception in favor of insolvent estates.</p> <p>Hence, if an administrator of an estate represented insolvent assume the defence of an action pending against his intestate, and neglect to suggest the insolvency upon the record, the execution issued upon the judgment recovered against the administrator may be legally levied on the real estate of the intestate fraudulently conveyed by him.</p>

<p>Upon a contract, made with his father’s consent, between a minor and the defendant, to enlist as a substitute, the father cannot maintain an action in his own name.</p> <p>Money paid as a bounty for enlistment into the military or naval service of the United States, is a gift to the person enlisting, and not wages.</p> <p>Bounty money, to which a minor becomes entitled upon his enlistment as a soldier, belongs to him and not to his father or master.</p>

On Report. Assumpsit against the owners of the steamboat Star of the East,” to recover money alleged to have been stolen from the pocket of the plaintiff while he was a passenger. It appeared that the plaintiff took passage on the defendants’ boat on June 29, 1866 ; and during the night $197,56 were stolen from his pocket by some person unknown.

On Exceptions. Assumpsit. On the first day of the return term, the defendant, in writing entered of record with its date, offered to be defaulted for a specified sum, but had no time fixed for its acceptance. On the 12th day of the term, the plaintiff accepted the sum offered and caused the defendant to be defaulted therefor.

<p>On Report.</p> <p>Writ op Entry for a lot of land in Sidney.</p> <p>It appeared that the parties, owning adjoining lots, having disputed about the dividing line, referred the settlement of the dispute, in 1860, to one M. B. Bliss, a surveyor, who made a survey and an award establishing the line. Aftérwards; the parties disagreeing about the line, entered into a submission, declaring that, — "not being able to agree as to the dividing line, * * they submit the question of the said dividing line to John A. Pettingill, and agree to meet on the premises on August 2, 1864, and submit the whole question to the said Pettingill, and to furnish such assistance as the said Pettingill may require. And it is agreed by the parties that the said Pettingill is to run said line agreeable to Moses B. Bliss’ decision in 1860, according to said Pettingill’s best judgment.” In August, 1864, Pettingill made an award, (omitting formal parts,) that, "upon due consideration,” &c., he is "of the opinion that the line in dispute between the contending parties should be according to an old and well marked line, traced by me, Aug. 9, 1864, which line-runs from,” &c. Here follows a description of the line established by Pettingill, by courses, distances and monuments.</p> <p>The plaintiff offered to prove that, when Pettingill heard the parties and made the survey, the plaintiff did not know' where the Bliss line was and had no one to point it out to him; that it was not shown to Pettingill; that the line established by Pettingill is thirty rods from the Bliss line ; that Bliss subsequently pointed it out to him ; that he called upon Pettingill, before he made his award, made known the facts and requested a rehearing; but that Pettingill refused to grant it; and that the line established by Pettingill was not the true line. But the defendant contended, and the presiding Judge ruled, that the award was conclusive. Thereupon the case was reported to the full Court, with an agreement that, if the award was not conclusive, the action to stand for trial.</p> <p>Olemenl v. Craigin, 1 Maine, 300; Hayes v. Trash, 31 Maine, 112; Sawyer v. Freeman, 35 Maine, 542; Merrill v. Gold, 1 Cush., 457; Bean v. Farnham, 6 Pick., 269; Strong v. Strong, 9 Cush., 561.</p> <p>S. Titcomb, for the defendant, cited</p> <p>Sweeney v. Miller, 34 Maine, 390; Randall v. LaFleur, 6 Allen, 482; Cushing v. Babcock, 38 Maine, 456 ; Forth Yarmouth v. Cumberland,, 6 Maine, 21; Drane v. Coffin, 17 Maine, 52 ; Watson on Awards, 161; Tyler v. Dyer, 13 Maine, 47; Munday v. Black, 9 Com. B., N. S., 557.</p>

On Exceptions. Case, for an injury to tke plaintiff’s wagon and minor daughter, by reason of his horse taking fright at the defendant’s hog, which was lying by the side of the highway in Benton, without a keeper. The plaintiff asked one of his witnesses if he had seen the hog at large in the road, before the d'ay of the accident, to which the defendant’s counsel objected.

On Report. Assumpsit on an account annexed, which was as follows : 1864, Dec. 2, J. E. & E. Gray to T. J. Meservey & Co., Dr. To balance of acc’t, $224,00 Int. on same to date, 6,00 230,00 The plaintiffs introduced the following order, signed by the defendants. Skowhegan, July 14, 1864. T. J. Meservey & Co. Please send us a Bbl. of Whiskey and 15 galls. Gin.” Also a bill as follows :— Messrs.

<p>Immediately: following the record of a notice for the foreclosure of a mortgage was the following certificate, signed by the register of deeds : — “ Somerset, Feb. 15, 7 1-2 A. M., 1859. Received and copied the above notice of foreclosure from the Republican Clarion, a weekly newspaper printed at Skowhegan, in said county, bearing date Jan. 19, 1859, vol. 18, No. 32, having been published in said paper three'weeks successively, as appears by papers shown at this office.” In a bill in equity to redeem the mortgage :— Held, that the certificate of the register sufficiently indicated “the name and date of the newspaper in which” the notice “ was last published.”</p> <p>The record of the notice of a foreclosure of a mortgage is the only proper evidence of the time when the ‘ ‘ right of redemption will be forever foreclosed ;” and a person seeking to redeem a mortgage trusts to other sources for such information at his peril.</p>

<p>Under R. S. of 1841, c. 104, § 21, a levy upon land was valid if the sheriff simply seized the land while in office, and completed it after his official term had expired.</p> <p>By the levy of an execution upon the land of a judgment debtor and the delivery of seizin to the creditor, the possession of the tenant, even if adverse to the creditor, thereby became interrupted.</p> <p>The seizin of the creditor, thus obtained, will be presumed to continue in him until proof to the contrary is shown.</p> <p>Under the general issue, the defendant, in a real action, cannot give in evidence an outstanding title acquired by Mm from a tMrd person since the date of the writ.</p>

<p>Bill in Equity, heard on demurrer.</p> <p>The bill was inserted in a writ of attachment, dated Dec. 18, 1865, and served by copy and summons, Deo. 19, 1865, on Charles P. Stetson, Esq., the alleged attorney of the respondent. The bill was entered at the January term, 1866, for this county. At the succeeding April term, the Court ordered that service be made on the respondent, in California, by giving him an attested copy of the bill. At the succeeding January term, the notice as ordei’ed was proved ; and there being no appearance for the respondent, the Court ordered that said Low be enjoined from prosecuting his suit at law against the complainant then in said Court, for this county, and from conveying the premises described in said bill until further order. At the succeeding October term, 1867, the complainant’s counsel moved that the injunction be made perpetual, whereupon said Stetson suggested as amicus curies, the want of jurisdiction. The presiding Judge suggested that the suit would be defaulted and the bill taken pro confesso, unless an appearance was entered for the respondent, and thereupon the said Stetson appeared to object to the jurisdiction, and filed a demurrer, therein alleging that it appeared by the complainant’s bill that the respondent is not, and, at the time of filing said bill, was not within the jurisdiction of this Court, but then was and now is a citizen of the State of California, and that no process had been served on the respondent within the jurisdiction of this Court.</p> <p>It was admitted that, in the fall of 1864, six months after the commencement of the action at law, (Low v. Marco,) the respondent moved from this State to the State of California, and has ever since resided in and been a citizen of California, and at the date of the bill or writ in this suit had no property in this State except the premises described in this bill and in controversy in Low v. Marco.</p> <p>A bill in equity must be dismissed when persons who are necessary parties refuse to appear and the Court has no power to reach them. Adam’s Eq., § 323 ; Picquet v. Swan, 5 Mason, C. C. R., 561; Mallon v. Hinds, 12 Wheat., 193; AEquitas agit in personam, Story’s Eq. PL, § 489 ; Spurr v. Scoville, 3 Cush., 578. In all suits in equity, the primary decree is in personam, 2 Story’s Eq. Juris., §§ 743, 744. Jurisdiction of equity in granting injunctions either to restrain proceedings at law, or for any other purpose, is necessarily subject to the rules defining and restraining its general jurisdiction. 3 Lead’g Cases in Eq., 201. An injunction to restrain a judgment acts on the parties. 2 Story’s Eq. Juris., § 875 ; 3 Lead’g Cases in Eq., 201; Porter v. Vaughan, 24 Vermont, 211, 216; Dehon v. Foster, 4 Allen, 550. Service in California was not valid. Spurr v. Scoville, ubi sup.</p> <p>Service upon the attorney is valid only so far as to make good a judgment against the property attached. It has no effect in personam. Lovejoy v. Albee, 33 Maine, 414; Spurr v. Scoville, supra.</p> <p>The attorney in a suit at law is not necessarily attorney for the same party in a suit in equity. The bill in equity should have been brought when levy was made, vigilantibus et non dormientibus, &c. Cartwright v. Ciarlo, 4 Met., 105. Complainant may enforce his equitable rights in California. Dehon v. Foster, ubi supra. It is no farther from here to California than from California here. Counsel also cited Beals v. Cobb, 51 Maine, 348.</p>

<p>On Report.</p> <p>Assumpsit, brought in the name of one other than the payee or owner, but for the benefit of the owner and indorsee of a negotiable promissory note, dated Nov. 7, 1865, payable " within three months,” and indorsed by the payee " without recourse.” ■ ■</p> <p>When the action was commenced, the note was the property of one Chase, and brought in the plaintiff’s name by his special permission.</p> <p>A few days after its date, the payee sold and delivered the note to one Hall for the full amount due thereon, but did not then indorse it. Still, subsequently, but before maturity, Hall sold and delivered the note to said Chase tor the amount due on it. A short time after its maturity, Chase then being the owner of the note, called at the office of the payee, on Sunday afternoon, about four o’clock, and requested him to indorse the note; and thereupon the payee wrote his name upon its back, adding thereto the words "without recourse.” Neither of the sales or deliveries was made on Sunday.</p> <p>If the action could not be maintained, a nonsuit was to be entered.</p> <p>It does not follow that everything done on the Lord’s day, in contravention of the statute, is void. Money paid and accepted on Sunday discharges the debt. Johnson v. Willis, 7 Gray, 164. Personal property sold and delivered on Sunday, will vest in the purchaser. Ellis v. Higgins, 32 Maine, 34; Richardson v. Kimball, 28 Maine, 463. The indorsement was a clerical act and related back to the time of sale and delivery to Hall. Ranger v. Gary, 1 Met., 369; Breen v. Seward, 11 Gray, 121. If the note had been indorsed on Sunday, and the note sold and delivered on the next Monday, the action would be maintainable. Hilton v. Houghton, 35 Maine, 145. The contract of indorsement, if a contract, was executed not executory and not rescindable, unless malum in se. Ellsworth v. Mitchell, 31 Maine, 251. It was but a direction to the maker. Indorsement " without recourse” simply transfers the property in the note. Waite v. Foster, 33 Maine, 424. If a contract between payee and indorsee, the maker is not in a position to avail himself of any defence which the payee might have in a suit against him as indorser. The maker is not prejudiced. He was a stranger to the transaction, and has no interest in it so long as it does not affect him. Richardson v. Kimball, ubi sup.</p> <p>Sproule v. Merrill, 29 Maine, 260; R. S., c. 124, § 20; Towle v. Larrabee, 26 Maine, 464; Ladd v. Rogers, 11 Allen, 210; Hay v. McAllister, 15 Gray, 433; State v. Suhur, 33 Maine, 539; Gregg v. Wyman, 4 Cush., 329 ; . Woodman v. Hubbard, 5 Poster, 67; Morton v. Glosler, 46 Maine, 521; Wheeler v. Russell, 17 Mass., 258; Pattee v. Greely, 13 Met., 286 ; Holman v. Johnson, 1 Cowp.,--; Babcock v. Thompson, SPick., 449; Worcester v. Eaton, 11 Mass., 281; Dwight v. Brewster, 1 Pick., 50; Spring-held Bank v. Merrick, 14 Mass., 322; 2 Parsons on Notes and Bills, 5; Rand v. Hubbard., 4 Met., 252; Malbon v. Southard, 36 Maine, 147; Peaslee v. Robbins, 3 Met., 164; 2 Pars, on Notes and Bills, 485 ; Blalcely v. Grant, 6 Mass., 386; Cabot v. Given, 45 Maine, 144.</p>

<p>The bargainee agreed to pay a specified price for certain chattels then in his possession, belonging to the bargainor, and also to pay for certain supplies to be furnished in a lumbering operation, by cutting and hauling logs from certain lands of the bargainor at a stated price per M. feet, the bargainor “to retain entire ownership of the chattels until he received entire payment of the same.” Upon a settlement of the lumbering operation, made by deducting the aggregate price of the chattels and supplies from that for cutting and hauling the lumber, a balance of $634 was found against the bargainor, which he paid. Subsequently it was discovered that the balance thus found and paid was $250 too much. In an action of replevin for the chattels brought by the bargainee’s vendees against the bargainor’s agent who had taken possession of them: — Held, that the bargainor could not apply the amount of the error to the non-payment of the price of the chattels, and thereby retain ownership of them.</p>

<p>On motion.</p> <p>The verdict having been for the plaintiff, for nominal damages only, the plaintiff filed a motion to set it aside, alleging substantially, that, after the evidence was closed but before argument, and during an adjournment of the Court from evening to morning, the defendant delivered to H. W. Briggs, a member of the jury before which the trial was had, a printed pamphlet purporting to be a report of all the evidence given at a former trial of the cause, for the purpose of influencing the juror; that Briggs received the pamphlet without the authority of the Court, and, without disclosing the fact to the Court, read a portion of it, and disclosed the contents thereof before the finding of the verdict to the other members of the jury, for the purpose of improperly influencing them in their decision.</p> <p>In support of the motion, the plaintiff filed the depositions of Briggs and six other jurors.</p> <p>The defendant’s counsel admitted that, without the previous knowledge or solicitation of the defendant, Briggs called at his door in the evening and requested the loan of the printed copy; that the defendant did not at the time recognize, him as a juror, and went to his. office and got a copy, and on returning to the door did recognize him as such, and hesitating to give it to him, the juror remarked that it was nothing wrong, or something to that effect, when the defendant delivered the printed testimony to him. The printed document- had been constantly referred to in the progress of the trial; the testimony of several witnesses had been read from it by agreement, as testimony in the latter trial.</p> <p>The juror Briggs deposed that he received the printed pamphlet from the defendant during the trial, in the evening after the evidence was closed, at the defendant’s house; that he read it in part, and noticed that the testimony of Drs. Brown and Coe, as printed, was somewhat different from their testimony on the stand; and so stated in the jury room; that one other juror saw the pamphlet, but did not read it.</p> <p>Benson v. Fish, 6 Maine, 141; Whitney v. Whitman, 4 Mass., 405; Sargent v. Roberts, 1 Pick., 337; Alger v. Thompson, 1 Allen, 403; Six v. Drury, 5 Pick., 302; Commonwealth v. Robie, 12 Pick., 519; State v. Hascall, 6 N. H., 352, 363; Perkins v. Knight, 2 N. II., 474; Knight v. Freeport, 13 Mass., 218, 220; Co. Litt., 227; Durfee v. Fveland, 8 Barb., 46; E. S., c. 122, § 8.</p> <p>It must appear that the misconduct has influenced the jury so as to render it very probable that it affected their verdict; and that they have been influenced corruptly. Shea v. Lawrence, 1 Allen, 167.</p> <p>If no injury is caused thereby, no interference with the verdict will be allowed. Tripp v. Go. Corn’s, 2 Allen, 557 ; Parsons v. Huff, 38 Maine, 137; Newell v. Ayer, 32 Maine, 334.</p> <p>When it does not affect the impartiality of the jury, the motion will not avail. The onus is upon the mover to show the effect affirmatively. Oom. v. Roby, 12 Pick., 520.</p> <p>It must appear to have been fraudulently done or with a design to influence the jury improperly. Harriman v. Wilkins, 20 Maine, 93.</p> <p>Juror’s testimony not .admissible to sustain, the motion. Ohadbourne v. Franklin, 5 Gray, 315; Hannum v. Belchertown, 19 Pick., 313; Murdoch v. Sumner, 22 Pick., 156; Oook v. Castner, 9 Cush., 278 ; Folsom v. Manchester, 11 Cush., 337; Graham on New Trials, 111; Clossin v. Smith, 5 Hill, 560; B. & W. R. R. Go. v. Dana, 1 Gray, 105; Dorr v. Fenno, 12 Pick., 525; Little v. Larrabee, 2 Greenl., 40; 1 Greenl. on Ev., § 252; State v. Freeman, 5 Conn., 348; Meade v. Smith, 16 Conn., 346; Dana v. Tucker, 4 Johns., 487.</p>

On Report. Trover for timber cut on certain public lots. The State of Maine conveyed certain public lots of land which were located, to one Charles Crosby, who conveyed them to Horace Jenness. While Jenness owned them, the plaintiff sued out a writ against Jenness upon a promissory note, which writ contained a count upon the note and also a general money count, without any specification of the nature of the demand under the latter count.

<p>On Report.</p> <p>The case is stated in the opinion.</p> <p>The vote of the town ratified the promise made by the selectmen. Lowell v. Oliver, 8 Allen, 247; Freeland v.. Hastings, 10 Allen, 570; Pottle v. Maidstone, 39 Vt., 70; Blodgett v. Holbrook, 39 Vt., 336.</p> <p>The vote was justified by the warrant. R. S., c. 3, § 5 ; Cornish v. Pease, 19 Maine, 184; Ford v. Olough, 8 Greenl., 334; Davis V. Hilliard, 1 Fairf., 317; Spear y. jRobinson, 29 Maine, 531; Avery v. Stewart, 1 Cush., 496 ; Blaekburne v. Walpole, 9 Pick., 101; Haven v. Lowell, 5 Met., 35; Hudwell v. Hancock, 3 Gray, 526; Grover v. Pembroke, 11 Allen, 89 ; Black v. Colchester, 39 Vt., 193; Pottle v. Maidstone, 39 Vt., 70. The vote embraced the plaintiff. Pottle v. Maidstone, ubi sup. The town counted him by filling the remainder of the quota. Tarbell v. Plymouth, 39 Vt., 429. The "purpose, occasion and circumstances of the proceedings,” indicate such to have been the intention. Upon the construction of the vote, counsel also cited Green v. Kemp, 13 Mass., 518; Gom. v. Weiher, 3 Met., 448 ; Pierce v. Atwood, 13 Mass., 324; Shackfleld v. Newington, 46 N. H., 420; Holbrook v. Holbrook, 1 Pick.,. 250; Staniels v. Raymond, 4 Cush., 316; Winslow v. Kimball, 25 Maine, 493; Gushing v. Worrich, 9 Gray, 382 ; Atwood v. Gobb, 16 Pick., 227 ; Barney v. Newcomb, 9 Cush., 56. The language of the vote " who volunteers” is in the present tense, not in the future more than past form. Common use of language allows the present tense to express both past and future action. So used by best authors. See also Bible, Revised Statutes. "Has been, is now and ever shall be” is not found outside of the Episcopal altar.</p> <p>1. The vote is prospective.</p> <p>2. Service of warrant not sufficient.</p> <p>3. The latter vote was without consideration. It was to raise money. No contract implied.</p> <p>Counsel cited, Fowler v. Danvers, 8 Allen, 80; Lowell v. Oliver, 8 Allen, 247; Alley v. Fdgecomb, 53 Maine, 446.</p>

<p>Assumpsit for use and occupation can only be maintained by proof of a promise, express or implied.</p> <p>It cannot be maintained against a disseizor.</p> <p>A judgment upon a writ of entry negatives the existence of the relation of landlord and tenant between the parties.</p>

<p>On June 20, 1825, Theodore Jones, by deed of warranty, duly executed and recorded, conveyed to Leonard Jarvis certain real estate situated in Ells-worth, in trust, and subject to certain mutual covenants and agreements contained in a written declaration of trust, of even date with the deed, signed by the parties and recorded. In accordance with one of the covenants, Leonard Jarvis, five days thereafterwax'ds, by his xvill, appointed Charles Jarvis to be his successor as trustee, and devised to him, in trust, the premises specifically described in the abovenamed deed. On Sept. 11, 1840, Tlxeo. Jones, by deed of warranty, duly executed and recorded, conveyed to Leonard Jarvis, “ in tx-ust, for the purposes mentioned in the”fox-mer deed, certain other described premises, in Ellsworth, “ to have and to hold in trust as aforesaid, with all the privileges and appurtenances thereof to the said Leonard, his heirs and assigxxs forever.” On Aug. 29, 1854, Leonard Jarvis, by deed of warranty, in consideration of one dollar, conveyed to Charles Jarvis, “ all his [my] right, title and interest in and uxxto any lands in Ellsworth,” and sevex-al other towns mentioned. On Nov. 14, 1863, Leonard Jarvis having deceased, Charles Jarvis, “in his own right and as executor of and trustee under the xvill of Leonard Jarvis,” conveyed the premises mentioned in the deed of June, 1825, to Munroe Young. On Peb. 1, 1864, Charles Jarvis, by deed of release, conveyed to said Young “all the right, title and interest he [I] may haxrn in his [nxy] oxvn right, or as devisee, trustee or heir under the xvill of Leonard Jaxwis, to the” premises described in the deed of Sept. 11, 1840, “ not meaning to prejudice any right or interest which the heirs of Leonax-d Jarvis, or the heirs of Theo. Jones may have in the premises,” “meaning to convey all the right, * * if any, I ma.y have in my oxvn right, as trustee as aforesaid — Held,</p> <p>1. That, by accepting the deed of Sept. 11, 1840, Leonard Jarvis held the estate therein described as trustee;</p> <p>2. That, neither by the will of Leonard Jarvis, nor by the deed of Aug. 29, 1854, did Charles Jarvis receive any title to the trust estate described in the deed of Sept. 11, 1S40;</p> <p>3. That the trust estate described in the deed of Sept. 11, 1840, remained in Leonard Jarvis until his death, when it descended to his heirs at law, subject to the same trusts as when the fee was in their ancestor;</p> <p>4. That if the heirs holding the fee neglect or refuse to execute the trusts, they may, it seems, with the assent of the cestuis que trust and others interested, convey the trust estate to a new trustee mutually agreed upon, subject to the original trusts; and,</p> <p>5. That the estate of Leonard Jarvis would be entitled to all its rights under the declaration of trust; and,</p> <p>6. That all the persons interested must be made parties to a petition for the appointment of a new trustee.</p> <p>After describing in his will the trust estate, and the covenants and agreements of the trust, one of which stipulated that the said Leonard may retain, out of the sales of the trust estate, a reasonable compensation for services and for all advances, Leonard Jarvis devised to Charles Jarvis, his successor, the trust property “ as it may be at my decease, upon the aforesaid terms and conditions, and for the aforesaid purposes, — he paying or causing to be paid unto my heirs * * the sum, if any, due my estate from the” trust estate : — Eeld, that by accepting the trust under the will, Charles Jarvis was not bound to pay whatever sum the trust estate owed the estate of the testate; but that he should see that such of the trust funds as came into his possession should be appropriated to the payment of such sum.</p>