Volume 58 — Maine Reports

On Exceptions. Case against a stockholder of the Portland Shovel Manufacturing Company, chartered Feb. 28, 1868, to recover the amount of his individual liability under R. S. of 1857, c. 48, § 9.

Petition for mandamus. The petitioners alleged, substantially,— That at a legal meeting of the inhabitants of Hartford, held Sept. 12, 1868, under Public Laws of 1867, c. 119, two-thirds of the legal voters present and voting, voted, “ That the town loan its credit to the Portland & Oxford Railroad Company, for the sum of six thousand five hundred dollars, to aid in the extension of said road from Hartford Center to Canton Mills, said loan to be issued to said company, in…

On EXCEPTIONS. Trespass de bonis asportatis against tlie defendant as deputyslieriff of tlie county of Cumberland, for attaching a stock of goods as the property of one Charles Nichols. The plaintiff claimed the goods by virtue of a mortgage from Charles Nichols to him, dated April 13, 1868, and duly recorded the next day. The attachment was made May 11, 1868, on a writ against Charles Nichols.

On exceptions to the ruling of Goddard, J., of the superior court, for the county of Cumberland. Assumpsit on account annexed for three hundred and thirty-nine dollars. Ezra Carter, summoned as trustee, after pleading and putting in his genera] denial, disclosed as follows: Interrogatory 1.

On Exceptions to rulings of Gfoddard, J., of the superior court, for ■the county of Cumberland. Assumpsit on an account annexed, tried by the justice without the intervention of a jury, subject to exceptions in matters of law. At the-March term, 1869, J. O’Donnell, Esq., the attorney who had previously appeared for both defendants, having withdrawn his farther appearance for B. B. Miller, one of the defendants, the latter was defaulted.

On exceptions to the ruling of Groddard, J., of the superior court, for the county of Cumberland. ■ Assumpsit on an account annexed for fifteen barrels medium beans.

<p>Railroad crossing — when a nuisance — indictment.</p> <p>By virtue of R. S. of 1857, c. 51, § 15 (R. S., c. 51, § 13), a railroad crossing not made in the “ manner ” “ determined in writing by the county commissioners,” is to he regarded as a nuisance.</p> <p>An indictment founded on R. S., c. 51, § 13, is fatally defective unless it allege substantially that the railroad crosses the highway in a manner not determined in writing by the county commissioners.</p> <p>An allegation that the defendants “ did unlawfully and injuriously lay, place, and put down, and cause to he laid, placed, and put down three certain tracks with iron rails in, upon, across, and over said highway,” is not sufficient.</p>

<p>On exceptions to the ruling of Goddard, Jof the superior court of the county of Cumberland.</p> <p>Tlie declaration, omitting the description of the land, was as follows:</p> <p>In a plea of the case ; for that the said defendant, on the 6th day of March, 1868, with intent, then and there, to cheat and defraud the plaintiff, together with one George W. Reed, induced the plaintiff to convey to them, the defendant and said Reed, certain real estate of the property of the plaintiff, and of the value of fifteen hundred dollars, described in tlie plaintiff’s deed to tlie defendant and said Reed, as follows: ... by then and there lending to the plaintiff a certain sum of money, to wit, the sum of two hundred and thirty-six dollars, to be repaid to them, the defendant and said Reed, with interest in two years from said 6th day of March, 1868, and by promising and cáusing the plaintiff to believe that they, the defendant and Reed, would then and there, as a part of the same transaction, make, execute, and deliver to the plaintiff, a good and sufficient bond or obligation, stipulating that they, the defendant and said Reed, would reconvey to the plaintiff said real estate upon the payment by him, to them, of said sum of two hundred and thirty-six dollars and interest, at or before the expiration of said two years; whereupon the plaintiff made, executed, and delivered to the defendant and said George W. Reed, a good and sufficient warrantee deed of said real estate, describing it as herein before recited; said deed being made “ subject to two mortgages, given by said Joseph Reed, and George W. Reed, to William H. Baxter,” which mortgages, since said sixth day of‘March, A. d. 1868, to wit, on the twenty-first day of August, A. D. 1869, have been paid and satisfied by the mortgagers; yet the said defendant intending wickedly and fraudulently to cheat, deceive, and defraud the plaintiff at the time of said conveyance to him and said George W. Reed, after obtaining said deed from the plaintiff, as aforesaid, refused then and there to make, execute, and deliver such bond or obligation, and ever since has refused, though then, immediately thereafter, and frequently since thereto, requested by the plaintiff; and on the first day of May, a. d. 1868, he, the said defendant, and said George W. Reed, conveyed to Nathan M. Woodman, by quitclaim deed, one undivided third part of said real estate, and on the seventeenth day of September, a. d. 1868, said George W. Reed conveyed to defendant all his right, title, and interest in said property, and the said defendant, on said sixth day of March, a. d. 1868, refused and still refuses to reconvey said real estate to the plaintiff, although the plaintiff was ready, and on the fifth day of March, a. d. 1870, offered to pay and tendered to defendant the sum of three hundred and fifty dollars, being said sum of two hundred and thirty-six dollars and interest thereon, and all charges and expenses to which defendant had been put on account of said property, including taxes, and all other sums due from plaintiff to defendant, and thereupon requested the defendant to release and reconvey said premises to him, the plaintiff, which the defendant, with the same intent to cheat and defraud the plaintiff thereof, refused to do.</p> <p>To this declaration the defendant specially demurred, and the plaintiff joined the demurrer. The presiding judge sustained the demurrer and adjudged the declai’ation defective; and the plaintiff alleged exceptions.</p> <p>cited Towle v. Lovett, 6 Mass. 394; Sorties v. Brewer, 2 Pick. 184; Dreen v. Tanner, 8 Met. 411; Blood v. Dayman, 13 Met. 231.</p> <p>cited 1 Chitty’s PI. 229; Gould’s PL, c. 4, § 12; Fuerstone v. Miles, 6 Johns. 141; Bayard v. Malcomí, 1 Jolms. 461; Tryon v. Whitmarsh, 1 Met. 5, 6 ; Coffin v. Coffin, 2 Mass. 363; Reed v. Smith, 1 Allen, 520; 1 Hill, on Torts, 11, 12 ; Cunningham v. Kimlall, 7 Mass. 65; Danson v. Bdgerly, 9 Foster (N. IL), 358; Pace v. Parker, 40 N. H. 70; Petigrew v. Chillis, 41 N. H. 102; Weeks v. Barton, 7 Yerm. 70; Lde v. Derry, 11 V erin. 617; Young v. Covill, 8 J ohms. 25; Hazard v. Irvin, 18 Pick. 96 ; Pedrick v. Porter, 5 Allen, 327; Fuller v. Hodgdon, 25 Maine, 248; Collins v. Denison, 12 Met. 549; Larrábee v. Larralee, 34 Maine. 483.</p>

On exceptions to the rulings of Gfoddard, J., of the superior court for the county of Cumberland. Case, for injury to a horse occasioned solely by a defect in a highway, which the defendants were bound to keep in repair. The case was tried by the justice without the intervention of a jury, subject to exceptions in matters of law.

<p>On facts agreed.</p> <p>Trespass for damage to personal property.</p> <p>The case came to this court by appeal from a judgment of the municipal court of Portland.</p> <p>Commercial street, in Portland, extending from the depot of the Atlantic & St. Lawrence Railroad Company, on India street, southwesterly, along the head of wharves, across the city to the depot of the Portland, Saco & Portsmouth Railroad Company, was laid out in 1850 by the city authorities.</p> <p>The plaintiffs’ store is upon the north-westerly side of Commercial street, where, at the time of the alleged trespass, they were carrying on business as wholesale flour dealers. In 1850, the Atlantic & St. Lawrence Railroad Company duly, located their railroad along Commercial street, between the two depots.</p> <p>The street is one hundred feet wide, and the track is laid on the extreme north-westerly side of the location. The distance from the plaintiffs’ store to the nearest rail is fifty feet, and the distance from the other rail, to the opposite side of the street, is forty-four feet. The track is planked between the rails, and that portion of the railroad location outside of the track is wrought for a street like the remainder of it.</p> <p>Since the construction of the railroad along the street, it has been customary for merchants, having flour arrive by the railroad, to have the car placed on the track opposite their store, and to place skids elevated above the ground some three feet, and extending from the car to the store, and upon them to roll the barrels of flour from the car to the store. When the skids are up, they prevent the passage of teams between the car and the store.</p> <p>On the day of the alleged trespass, the plaintiffs had a car of flour arrive in front of tlieir store, and thereupon put up their skids and commenced unloading the flour in the customary manner. Some teams came along, among them the defendant’s, and the plaintiffs took down the skids and let them pass. The defendant went down street a few rods and returned, driving his team to the skids, then up, and requesting the plaintiffs’ agent to remove the skids, which he refused to do; whereupon the defendant threw them down, drove his team through, thereby breaking down a wooden horse of the plaintiffs, which supported the skids, and the skid between the horse and the car.</p> <p>The street between the car and the opposite side of the street was unobstructed, and there was nothing to prevent the defendant’s , team, which was not loaded, from crossing the railroad track and passing along on the other side.</p> <p>It takes from ten to fifteen minutes to unload a car of flour by using skids; and from an hour and a half to two hours, to unload one and remove the flour from the street into the store, without skids.</p> <p>If the plaintiff's were entitled to recover, judgment to be entered for one dollar damages and costs, as provided in the report.</p>

<p>Payment — appropriation of.</p> <p>If enough of the payments made on an account be subsequently applied by tbe creditor to liquidate tbe items consisting of liquors sold in violation of law ; and a statement of the account, omitting therefrom the liquor items, and their equivalent in credits be sent to the debtor, who thereupon replies that he will pay the same — the appropriations will be deemed made by mutual assent, and they cannot be revoked without such assent.</p>

<p>On report.</p> <p>Petition for partition.</p> <p>The material facts are all stated in the opinion.</p> <p>If Reuel S. Leighton took under his father’s will a vested mainder, then the petitioners’ share in the estate is one-fifth; if a contingent remainder, their share is one-fourth. rebut</p> <p>I. Reuel’s interest under tbe will was a contingent remainder,— dependent upon the contingency (1) that be survived bis mother, and (2) that be paid tbe legacies to tbe other heirs named in tbe will. These were conditions precedent; and bis own death happening before the termination of tbe life-estate of bis mother rendered their performance impossible; that in consequence of tbe non-performance of tbe conditions, and tbe occurrence of an event that rendered their performance an impossibility, tbe devise over to Reuel never vested m him, but lapsed into tbe undcvised estate, and descended to tbe heirs at law of tbe testator (the two petitioners and tbe two respondents) in equal shares of one quarter each, in tbe same manner as if tbe will bad made no mention of the remainder. Varney v. Stevens, 22 Maine, 231.</p> <p>“ Tbe intention of tbe testator is tbe great and governing guide for tbe construction of wills.” Morton v. Barrett, 22 Maine, 265 ; Fish v. Keene, 35 Maine, 354. “ After the death of my beloved wife Jane, it is my will that my son, Reuel S. Leighton, have all tbe property, both real and personal, which may then remain, by paying out the following bequests,” is tbe language of the will. Tbe testator manifestly never intended that Reuel should have tbe whole property, “ both real and personal,” without paying “ tbe bequests,” or be would not have imposed tbe conditions. It was only upon tbe contingency that Reuel should survive bis mother, combined with tbe condition that be should pay tbe bequests, that he was to take tbe estate at all. Tbe happening of the contingency " was just as effectual to render tbe remainder a contingent one, as if it bad been to pay the bequests after bis “return from Rome.” Non constat that be would survive bis mother, so be could pay.</p> <p>If tbe remainder never vested in Reuel, it never descended from him.</p> <p>II. If the intention of tbe testator was otherwise, the will failed to express it, and tbe court will not supply omissions for such a purpose. Pickering v. Bangdon, 22 Maine, 429, 43Í.</p> <p>III. There is no second devise over to meet tbe contingency of tbe first, to wit, of Reuel’s not surviving bis mother. And the occurrence of his death before his mother changed the contingency into a certainty that payment was an impossibility, and the devise to him lapsed, and the remainder descended to the heirs at law of his father. Redfield on Wills, part II, §§ 50, 505, 506 ; §§ 64, 694, 695; §§ 57, 631; §§ 65, 649, 663, 664.</p> <p>IV. A contingent remainder is limited so as to depend on an event which is dubious or uncertain, and may never happen or be performed, or not until the determination of the particular estate. It is not the uncertainty of enjoyment in the future, but the uncertainty of the right to that enjoyment, which marks the difference between a vested and contingent remainder. 4 Kent’s Com. 206 ; 2 Black. Com. 169. The event of Reuel’s surviving his mother was “ dubious and uncertain,” and might never happen. If it did not happen, the condition could never be performed, and hence the “ right to the enjoyment ” was “ uncertain.” The uncertainty of survivorship, accompanied by the possible impossibility of performing the condition, rendered the “ right to the enjoyment” of the estate dubious and uncertain, and hence the remainder contingent. The contingency could not cease until he had survived his mother, and the remainder could not vest while liis mother lived. Olney v. Hull, 21 Pick. 311; Hunt v. Hall, 37 Maine, 363.</p> <p>V. Although the law favors vested rather than contingent remainders, yet®“this preference is not to be so pressed as to defeat the intention of the testator.” Hurlburt v. Bmerson, 16 Mass. 244; Bichardson v. Wheatland, 7 Met. 171. Stark v. Smiley, 25 Maine, 201, is not in point; for there was no life-estate, and consequently no question of vested or contingent remainder.</p> <p>VI. The devise to Reuel being upon condition, could not vest until he accepted the condition ; and the acceptance evidenced by some positive, affirmative act or declaration, for it cannot be presumed or inferred in the absence of proof. Redfield on Wills, §§ 67, 686; Boivker v. Bowker, 9 Cush. 524; Marwick v. Andrews, 25 Maine, 529.</p> <p>Even if the condition were subsequent (which is not admitted), it must be accepted before it can vest in Reuel; for until accepted, the legatees would have no lien on the estate for the payment of the legacies; and if it vested without such acceptance, he could devise or convey it, and thus defraud the legatees of the legacies.</p> <p>VII. The widow had the power to dispose of the whole estate for her own support, had she found it necessary; for Reuel was to have “ after the death ” of his mother all the property “ which may then remain.” Mon constat that any would remain, so that he would ever have the “ right to the enjoyment ” of any of the estate. His “ right to the enjoyment ” was rendered uncertain by this power of disposal by his mother. What the first taken has the power to dispose of at will, or on a certain event, or for a certain purpose, is contingent. The widow had the power of disposal. Karris v. Knapp, 21 Pick. 416; JRamsdell v. JRamsdell, 21 Maine, 288.</p>

<p>Bill in equity, heard on "bill, answer and proofs.</p> <p>The prayer of the bill was, that if the mortgage should be found to be wholly paid, that the respondent be compelled by a decree to release to the complainant.</p> <p>The case is sufficiently stated in the opinion.</p>

On REPORT. Trespass quare clausum, for breaking and entering a parcel of land conveyed by tbe father of the plaintiffs, by his deed of June 19, 1845, to the “ Proprietors of the South Chapel in Fryeburg.” .

On exceptions. Case under R. S. of 1857, c. 51, § 38 (R. S., c. 51, § 31), to recover the value of a building destroyed by fire communicated, as alleged, by a locomotive engine of the defendants.

<p> Bond for conveyance of land. Promissory note. </p> <p>■ Where the obligor of a bond, for the conveyance of certain land to the obligee, upon the latter’s payment of certain notes, at maturity, conveys away the land, upon the failure of the obligee to pay the notes according to their tenor, the administrator of the estate of the obligor cannot enforce payment of them.</p>

On exceptions. Assumpsit. “ For that the said plaintiffs, by an act of the legislature of the State of Maine, approved on the eighth day of February, in the year of our Lord one thousand eight hundred and sixty-six, were made and constituted a corporation, or body corporate, by the name of ‘ The Bethel & Hanover Toll-bridge Company,’ for the purpose of erecting and keeping in repair a bridge over the Androscoggin river at Hemlock Island, between the towns of Bethel and…

On report. Action to enforce a lien for a balance due for labor, performed while in the employ of the defendant, on the ship Empire. The vessel was launched Dec. 4, 1869, at eleven, a. m. The writ was dated December 9th, and the attachment was made on the same day. Nathaniel L. Thompson appeared as owner, and defended so far as it related to the validity of the lien claimed by the plaintiff.

On pacts agreed. Real action to recover a tract of land in Lebanon, in this county, the plaintiff claiming in his writ an estate in fee-simple. He claims title under and by virtue of the will of Jonathan Hamilton, his great grandfather. Rufus Hamilton died May 30, 1865. The defendant pleaded the general issue and statute of limitations. If the plaintiff has no title or right to recover in this action, he is to become nonsuit.

<p>On report.</p> <p>Assumpsit on a promissory note payable to one William Bedell or order, on demand, with interest annually, and by him indorsed to the plaintiff. Several payments had been made at different times, and indorsed.</p> <p>The note was executed and delivered by the defendant, in the State of New Hampshire, at the defendant’s place of business there, he having then, and ever since, resided in Maine, but had an office, as a place of business, hi New Hampshire. The payee, at the time the note was given, was, and ever since has been, a resident of New Hampshire. The plaintiff, at the time the note was indorsed to him, was, and ever since has been, a resident of New Hampshire. And the payments were made there.</p> <p>Plaintiff claimed that interest should be cast, and the payments appropriated according to the rule adopted by the courts of New Hampshire; and the defendant contended that 'interest should be cast according to the law of this State.</p> <p>The court to decide which mode of computing interest should be adopted, and render judgment according to law.</p>

On exceptions. Scire-facias, dated Eeb. 19, 1869, against the defendant, as trustee of one Staples, brought under R. S., c. 86, § 67.

On exceptions. Assumpsit on account annexed for the labor and services of the plaintiff’s intestate, amounting to $263.82, with an item of credit of “cash and sundries at sundry times,” $156. The defendant filed an account in set-off, comprising an item of “ cash, goods, and merchandise delivered and paid in settlement of” the intestate’s account, to Dec. 2, 1863, $95.88, and three other items amounting to $7.17.

Bill in equity, heard on bill, answer, and proofs. The bill is against the administrator of the estate of the plaintiff’s husband and his only child and heir at law, and, after setting out the death of her husband and the appointment of the defendant, Holden, alleges substantially: That in November, 1866, Charles Trowbridge, who was then, and for more than thirty years had been her husband, owning certain land (described), and buildings thereon, situate in Portland, conveyed…

<p>Bond of treasurer of State — pleading—replication—judgment.</p> <p>A bond in a penal sum, given by the treasurer of State, with sureties, to the State, conditioned for the faithful performance of the official duties of the treasurer; that ho will render an account, when required by the legislature, of all sums of money he shall receive into the treasury, and pay to liis successor, or any other person appointed by the legislature to receive the same, all such sums of money and property upon settlement of his accounts as shall be found due from him, as treasurer, to the State; “ that during his continuance in office, he will not engage in any business of trade or commerce, or as a broker, nor as agent or factor for any merchant or trader;” “that he will render a true account... to the legislature ... on the first Wednesday of .1 anuary ” following the date of such bond, and faithfully and without delay deliver to his successor all the moneys, books, property, and appurtenances of said office remaining in his hands, and pay over all such balances as shall appear due, etc., is a “ contract in a penal sum for the performance of covenants or agreements” within R. S., c. 82, § 1(1.</p> <p>To a plea of general performance of the conditions of the bond of the treasurer of State, the plaintiff replied that the principal defendant “ continued to hold and exercise tlio office of treasurer of State, to which he was chosen, as in said condition of said writing obligatory mentioned, . . . from Jan. 13,1858, to Feb. 4,1859; that during said time,... on Jan. 14, 1858, and on divers other days and times between that day and the said Feb. 4, 1859, at,” etc., the principal defendant, “as such treasurer, had and received divers sums of money amounting in the whole to the sum of thirty-nin e thousand, two hundred and thirty-one dollars and nineteen cents, belonging to the. State, and hath not accounted for or paid to the State the same, or any part thereof, although often requested so to do, but hath therein wholly failed, and made default; ” “ and that the same is still wholly unpaid and unsatisfied, contrary to the form and effect of the said condition of the said writing obligatory.” On special demurrer, Held, that the replication sets out the breach with sufficient particularity and precision.</p> <p>In such cases, general pleading is allowable w hen the facts constituting the breach lie more in the knowledge of the opposite party than of the party pleading.</p> <p>Where the aggregate amount of thebreaches is set out in the replication, and the replication is adjudged good on demurrer, judgment must go for the amount thus claimed, unless the demurrer is, with the consent of the other party, and by leave of the court, withdrawn under R. S., c. 82, § 19.</p>

<p>Bill in equity — fraud.</p> <p>A bill alleged, substantially, that the respondent, with intent to defraud the complainant, willfully and knowingly made to him a series of false and fraudulent representations, specifically set out, as to matters of fact relating to the “ McKay Sole Sewing Machine,” and the “ Foreign Sole Sewing Machine Company;” and, that by means of such representations, he induced the complainant to purchase of him a large number of worthless shares in a mock company, and to give him in exchange therefor, a conveyance of several lots of land situate in this State, praying that the conveyance be decreed void and the respondent ordered to reconvey to the complainant. On demurrer, Held, that the bill be sustained.</p>

<p>On exceptions to the ruling of Goddard, J., of the superior court for the county of Cumberland.</p> <p>Assumpsit on a promissory note, dated Jan. 22, 1861, “ signed in the presence of an attesting witness,” and given by the defendant to the plaintiff, for fifty dollars and interest.</p> <p>The action was tried by the justice without the intervention of a jury, subject to exceptions.</p> <p>The justice found, as fact, that at the time of making the note, the defendant was the husband of the plaintiff, cohabiting as husband and wife ; that he borrowed and received the sum for which' the note was given from his wife at its date; that the money was. hers, being the proceeds of property belonging to her at the time of their intermarriage; that they continued to live together until March 27, 1869; that at the October term, 1869, of this court, and before the commencement of this suit, the plaintiff Avas divorced from the bonds of matrimony between her and the defendant, on a libel filed by her at that term, and that nothing has been paid on the note.</p> <p>The presiding justice ruled as matter of law:</p> <p>“ That a woman after divorce may commence and maintain a suit against her former husband, on a note given by him to her during coverture, for money borrowed of her and unpaid.”</p> <p>To this ruling the defendant alleged exceptions.</p> <p>1. At common law, husband and wife are not competent parties to a contract; and the promise of either to the other for payment of m'oney is a nullity. Lewis v. Lee, 3 B. & C. 291; 2 Kent, 107, 109; Jackson v. Parks, 10 Cush. 550; Sweat v. Sail, 8 Verm. 187; Davis v. Millet, 34 Maine, 429; Patterson v. Patterson, 45 N. H. 164.</p> <p>2. The contract, or note, in this suit is void, and cannot be enforced in law. Lord v. Parker, 3 Allen, 127; Ingham v. White, 4 Allen, 412; Smith v. Grorman, 41 Maine, 405; Crowiher v. Cfrowther, 55 Maine, 358; Edwards v. Stevens, 3 Allen, 315; Turner v. Eye, 7 Allen, 176; Phillips v. Erye, 14 Allen, 36.</p>

<p>Receipt — construction of. Certificate — construction of. Practice.</p> <p>A writing acknowledging that the subscriber had received the promissory note of another “for five shares of stock in the M. T. Co., and certificates of stock are to issue to ” the maker of the note for the same, when ready for issue, — is not a contract for the future sale of the shares, but a recognition that the shares themselves were the consideration of the note.</p> <p>A certificate that a certain person named “is the owner of five fortieth parts of the letters-patent and property of the M. T. Co.,” ... and stipulating “that whenever an incorporated company shall be organized .. . the holder hereof shall be entitled to receive its equivalent value in the certificate of shares in the capital stock of such company,” does not operate as an assignment to the holder of any interest in the letters-patent.</p> <p>The fact that the jury were unable to agree upon one of four questions submitted to them, cannot be presented to the full court upon a motion to set aside the verdict as being against the evidence.</p>

<p>Execution — set-off of. Assault — assignment of.</p> <p>The creditor in an execution issued on a judgment in which the debt or damage recovered is for rent, “ became entitled to the sum due thereon,” within the meaning of R. S., c. 84, § 27, when his cause of action accrued.</p> <p>He is not so entitled to costs until he has obtained a judgment therefor.</p> <p>“ The first execution ” in the same section is the one issued upon the judgment in the action which was first commenced.</p> <p>No effectual assignment of a sum that may be recovered in an action of trespass for a personal assault can be made before final judgment.</p>

On exceptions. Libel for divorce a vinculo, dated Feb. 20,1868. At the May term, 1869, the libelee requested a trial by jury, and at the January term, 1870, waived it, when the case proceeded before tbe presiding judge. At the trial, after the reading of the libel, the counsel for the libelee read the answer, and introduced in evidence, without objection, a transcript of the judgment therein referred to. The identity of the parties was admitted.

<p>On report.</p> <p>Debt on an instrument, signed and sealed by the defendant, of the following tenor:</p> <p>“ Know all men by these presents, that I, Phineas F. Johnson, of Biddeford, in the county of York, and State of Maine, am holden, and stand firmly bound and obliged unto Richard S. Cas-Avell, of said Biddeford, in the sum of five hundred dollars, to be paid to said Richard S. Caswell, his executors, administrators, or assigns. To the which payment, well and truly to be made, I bind myself, heirs, executors, and administrators, firmly by these presents, sealed with my seal, dated the nineteenth day of December, anno domini, one thousand eight hundred and sixty-seven.</p> <p>“ The condition of the above obligation is such, that, whereas said Johnson has this day sold to said Caswell the stock and fixtures in the store occupied by him on Main street, in said Biddeford, and in part consideration of said, sale, has agreed with said Caswell not to engage in the retail sale of fish, within said Biddeford, so long as said Caswell shall remain in the business. Now, therefore, if the said Johnson shall not, directly or indirectly, engage in such retail trade while said Caswell shall be engaged therein, then this obligation shall be void, — otherwise shall be and remain in full force.”</p> <p>There w'as evidence on the part of the plaintiff tending to prove that the defendant sold oysters at retail, in Biddeford, after the execution and delivery of the foregoing instrument.</p>

<p>Parol demise. Flowage — what title essential to complainant. Grant of right of flowage — construction of.</p> <p>Where one of three joint grantees paid no part of the purchase-money, and claimed neither possession nor title under the deed, nor exercised any control over the premises, he may he considered as having made a parol demise of his interest to the other grantees; and such a transfer, followed by more than forty years exclusive possession on the part of his co-grantees and their assigns, would bar any claim which he might thereafter assert,</p> <p>The fact that a fee, of which a complainant is sole seized, is liable to he defeated by the non-performance of some condition subsequent hy some former owner, will not preclude the complainant from recovering of a stranger to the title the damages sustained by flowage while he is in possession, no one having entered to claim a forfeiture for condition broken.</p> <p>The grant by deed of “ a full and perfect right to flow all land belonging to ” the grantors, “ situated in” a certain town, “ and adjoining the Brown brook, so-called, meaning, nevertheless, to grant no right of flowage which would injure of effect the privilege of the Philpot mill, so-called,” — conveyed the right to flow such only of the grantors’ lands there as would be flowed by a dam, so constructed as not to interfere with the Philpot mill-privilege as it existed at the date of the grant.</p>

<p>On report.</p> <p>Writ oe entry.</p> <p>Case is fully stated in the opinion.</p> <p>cited Wiswell v. Marston, 54 Maine, 270.</p>

On exceptions to the rulings of Gfoddard, J., of the superior court for the county of Cumberland. Indictment founded on R. S., c. 51, § 36, alleging, substantially, that the defendants, at Yarmouth, ou Aug. 2,1869, negligently and carelessly run their locomotive against one David P. Pullen, then and there in the exercise of due care and diligence, by means whereof he was killed.

On exceptions to the rulings of Gfoddard, J., of the superior court for the county of Cumberland. Held: notwithstanding the payment, as taking upon himself the consequences of his unlawful act.

<p>On exceptions.</p> <p>Case, for an injury occasioned by a defective highway.</p> <p>There are two actions, — one for injury to Henry Baker’s wife, and the other to himself.</p> <p>The defendants put into the case the following city ordinance:</p> <p>“No person having for the time being the care or use of any horse or other beast of burden, carriage, or draught, shall ride or drive, or cause the same to be driven through any part of the city at a faster rate than six miles an hour, under a penalty of not less than five dollars, nor more than twenty dollars for each offense.”</p> <p>The presiding judge instructed the jury, that, “ if the plaintiff was driving at a faster rate than six miles an hour, at the time he and his wife were thrown from the carriage, yet if such driving did not in any degree contribute to produce the injuries complained of, it would be no bar to their right to recover.”</p> <p>The defendants filed a motion to set aside the verdict as being against law and evidence.</p> <p>The case is stated in the opinion.</p> <p>Within the limits of the city, the ordinance is law, having all the force of a statute, and binding citizens and strangers alike. Pierce v. Bartrum, Cowp. 269; Gilmore v. Holt, 4 Pick. 257; Commonwealth v. Worcester, 3 Pick. 462; Vandine’s Case, 6 Pick. 187; State v. Merrill, 37 Maine, 329; Nightingale’s Case, 11 Pick. 168 ; Lowell v. Hadley, 8 Met. 180; Pedriclc v. Bailey, 12 Gray, 161; Commonwealth v. Bean, 14 Gray, 52; State v. Freeman, 38 N. H. 626; Commonwealth v. Curtis, 9 Allen, 266; Angelí & Ames on Corp., §§ 325, 336 ; Comyn’s Dig., By-laws A. & B.</p> <p>The plaintiff was a citizen of Portland, and had constructive notice of this ordinance. Every person subject to the action of a by-law is presumed to know its import as is his duty.' Angelí & Ames on Corp., § 366; Heland v. Lowell, 3 Allen, 407.</p> <p>A person driving on Sunday, in violation of law, cannot recover, though exercising the highest degree of care, and the injury result solely from the defect in the way. The simple fact that he is in the act of violating the law at the time of the injury, is a bar to the right of recovery. Hinckley v. Penobscot, 42 Maine, 89; Bosworth v. Swansey, 10 Met. 363. Same principle involved in case at bar.</p> <p>The courts are not inclined to extend the obligation imposed by ■ statute upon towns to keep their roads safe and convenient, to cases in which travellers are violating the law at the time of the injury. The city of Portland finds it unsafe for vehicles to be driven through the streets at a faster rate than six miles an hour, unsafe for persons driving, and unsafe for foot passengers, and, acting within the authority conferred by the legislature, they forbid it. Upon what principle can they be held liable in damages for an injury sustained by the plaintiff, while in the act of violating that law ?</p> <p>The question whether the plaintiff in this case was or was not driving at a faster rate than six miles an hour was submitted to the jury, and they could not agree upon an answer. At the time of making up the exceptions, it was thought unnecessary that it should appear, the presiding justice stating that, upon suggestion of it in argument, the defendants should have full benefit of the fact.</p> <p>Suppose the testimony in regard to the day on which an injury was received should be so conflicting that the jury could not determine whether it was on Sunday or another day of the week, could they render a verdict for the plaintiff?</p> <p>That he was not driving in violation of law was a fact which the plaintiff was bound to prove. As in Hinclcley v. Penobscot, it was held that the burden of proof was upon the plaintiff, who was traveling on Sunday, to prove that it was a work of charity or necessity. In repeated instances it has been held that the burden of proof is on the plaintiff in these cases to prove that he was not at fault at the time of the injury; that there was no negligence on his part; that he was driving according to law, and that no other cause combined with the defect to produce the injury. It was, therefore, not for the city to prove that he was driving faster than six miles an hour, but for the plaintiff to prove that he was not. This he did not do to the satisfaction of the jury.</p> <p>The fact of the violation of the law by the plaintiff is a bar to such action as the one at bar. Heland v. Lowell, 3 Allen, 407, and cases cited; Worcester v. jEssex Bridge dorp., 7 Gray, 459.</p> <p>The jury must find that the plaintiff was not violating the law before they can find a verdict in his favor; and the question whether or not such a violation of law contributed_to the injury is immaterial.</p> <p>How are the jury to determine that the illegal driving did not contribute to produce the injury ? The testimony as to speed was so conflicting, that the jury could not agree. Every reduction of speed would evidently diminish the probability of the plaintiff’s being thrown out; and if he had not been thrown out, and had been able to hold the reins, there would have been no injury.</p> <p>A change in the rate of speed must by natural law increase or diminish the danger, while the verdict practically holds that the danger would be the same at a rate of less than six miles as it would be at a rate of more than six miles.</p> <p>Defendants therefore insist that the finding of the jury, that the illegal driving did not contribute to the injury, was unwarranted by the testimony, and as the burden of proof on this point was on the plaintiff, that the verdict, even under the instructions of the court, was against evidence and the weight of evidence. It was not competent for the jury to find without evidence a fact which the plaintiff was bound to prove.</p> <p>Or if the jury found their verdict, without finding that the rate of speed in no degree contributed to the injury, then the verdict is directly against the charge of the presiding judge.</p>

On exceptions. Au action for pauper supplies. The only question in dispute was whether the pauper, John Johnson, had resided in West Gardiner for five successive years.

On exceptions. Assumpsit upon an account annexed for 25i days’ work, at $1.25 =$31.87, ending June 29, 1869. The case was referred to the presiding judge, with the light of alleging exceptions.

On exceptions. Case to recover damages for an injury claimed to have been sustained by reason of alleged defects in the highway.

In July, 185T, Vesta A. Perley, the plaintiff’s intestate, died a widow and without issue in the State of Ohio.

<p> Creditor of husband seeking to hold land conveyed to wife. Practice. </p> <p>If the creditor of a husband would hold land conveyed to the wife by a bona fide grantee of the husband, and paid for out of the property of the husband, he must do it by a hill in equity and not by a levy.</p> <p>And it makes no difference that the husband’s conveyance was made with a design, on his part, to defraud his creditors, and that the wife participated in such design, and joined in the deed for the purpose of releasing her right in dower.</p> <p>The question of the admissibilitj' in evidence, of certain answers in a deposition, , cannot he presented to the full court unless the bill of exceptions contains a copy of such answers.</p> <p>A provision, in the bill of exceptions, that the depositions “may be referred to, but not copied,” is not sufficient.</p> <p> Webster, pro se. </p> <p>E. Kempton, for the defendants.</p>

On exceptions. ■ Scire-facias to revive a judgment satisfied by a defective levy. The writ was dated Feb. 12, 1869, returnable at the March term, 1869, in this county.

<p>On exceptions.</p> <p>Assumpsit by the plaintiff, who is under the age of twenty-one years, by his mother and next friend, to recover for four months’ and seventeen days’ labor.</p> <p>There was evidence on the part of the plaintiff tending to show that he contracted with the defendant to labor for him six months for fifty dollars and board; that he labored from May 7th to Sept. 24, 1866, and then left because the defendant required him to work on the Sabbath ; that the plaintiff’s father was deceased at the time he made the contract, and his mother resided in Massachusetts; that he was sixteen years of age; that the plaintiff had paid him twelve dollars and thirty cents; and that he called for his pay when he quit, but the defendant refused to pay. It also appeared that the plaintiff was never emancipated.</p> <p>On the part of the defendant there was evidence tending to show that the contract was that the plaintiff was to stay with the defendant one year for fifty dollars, with the privilege of going to school four months; that the defendant did not require the plaintiff to work on the Sabbath, and that the plaintiff’s mother had a husband living.</p> <p>The case was taken from the jury and referred to the presiding judge, with right to allege exceptions in matters oí law.</p> <p>After the evidence was all in, the defendant moved for, and the presiding judge ordered a nonsuit, for the reason that the action could not be maintained in the name of the plaintiff. Whereupon the plaintiff alleged exceptions.</p>

On exceptions, and motion for new trial because of disqualification of two of the jurors. Indictment under R. S., c. 119, § 3. The facts sufficiently appear in the opinion.

<p> Pleading. Abatement. </p> <p>A plea in abatement must be direct and positive, and not argumentative.</p> <p>Thus, in an action against a sheriff for the wrongful official acts of his deputy, a plea in abatement alleging substantially that the alleged trespass accrued to the plaintiff by reason of the official acts of the defendant’s deputy, for which the defendant was legally responsible; that the plaintiff had his election to bring his action therefor directly against the deputy or the defendant; that he elected to and did bring it against the deputy, and the same is still pending and undetermined; and “ that by bringing his said suit directly against said deputy, the plaintiff elected to release and did thereby release this defendant from all further liability for the supposed trespasses,” etc., is bad.</p> <p>The pendency of an action of trespass against a deputy-sheriff for his wrongful acts done under color of his office, cannot be pleaded in abatement in an action against the sheriff for the same cause.</p> <p>The pendency of such a suit against a deputy when an action against the sheriff for the same cause is entered, is not a release of the latter action.</p>

On report. Assumpsit to recover the amount of a note for $450, and an order for $50, given by the defendant to the plaintiff's intestate on Dec. 80, 1847. The writ was dated March 28, 1864, and contained counts on the note and order, and one for money had and received.

<p>Life-estate. Lease — construction of.</p> <p>If a lease of land be made to a person, “ to bold for tbe term of tbe life of tbe said” lessee, “ and tbe life of ber husband” named, “ and tbe life of” another person named, the estate is not terminated with tbe death of tbe lessee.</p>

<p>Conveyance of land in consideration of service to be rendered by grantee. Reforming deed — mistake of law — qff'ect of deed.</p> <p>M. L. conveyed land, by deed of warranty, to his father, S. L., conditioned that, if the grantor “ maintained and supported ” S. L. and wife, and paid his sister S. three hundred dollars, the deed should be void. Subsequently, M. L. having died without issue, the land descended to S. L., who thereupon conveyed it to his other son, M., by deed of quitclaim, “ in consideration of the conditions to be performed for me and mine by” M., “ agreeably to the deed of the late M. L. to me; ” the acceptance of the latter deed rendered M. personally liable to perform the conditions mentioned, but created no lien upon the land.</p> <p>In such case, the deed having been made as the parties intended, without any wrongful insertions or negligent omissions, a court of equity will not after twenty years, interfere to reform it, so that it will have the legal effect expected.</p> <p>Nor to cancel a deed, alleged to be fraudulent, on the prayer of one having no interest in the land thus conveyed.</p>

<p>Privileged communications — telegrams not. Operator bound to disclose as witness. Notice to produce — when seasonable. Credibility of an accomplice.</p> <p>Telegraphic communications are not privileged.</p> <p>A telegraphic operator is bound, as a witness, to disclose them.</p> <p>Notice to a person receiving a telegram to produce it is seasonable, if given before tlxe trial commences.</p> <p>The degree of credit to be given to any witness, including an accomplice, is to bo determined by the jury.</p>

<p>Conveyance subject to mortgage — payment of mortgage debt — -dower.</p> <p>Where a mortgager of real estate, in Ms lifetime, assigned his property for the benefit of his creditors, and his assignees sold the equity of redemption to the tenants, making the conveyance “ subject to a mortgage ... to be provided for by the purchasers,” a payment of the amount due on the mortgage, by the tenants, and an assignment thereof to themselves, operate as an extinguishment of the mortgage; and the mortgager’s widow, if she did not join in the deed, may recover dower in the premises, notwithstanding she joined in the mortgage for the purpose of releasing her dower.</p>

<p>Trover — bailee. Evidence of inconsistent propositions. Demand— conversion.</p> <p>Trover cannot be maintained against a bank for United States bonds deposited therein, but which have been either lost or stolen therefrom.</p> <p>When the evidence equally sustains each of the ju-opositions, that bonds deposited in a bank were either lost, stolen, or misdelivered, neither of them can be regarded as established.</p> <p>Demand and refusal will not be sufficient evidence of conversion, when it also appears that the property demanded was not at the time in the possession or control of the person on whom the demand was made, but that it had been previously lost, or stolen, or misdelivered.</p>

On report. Assumpsit ou a receipt, a copy of which may be seen in the opinion. The time of payment of the note was extended by the defendant to Jan. 12, 1867, upon payment of $11.16 interest for the extension; and on the latter day the note was paid, and a return of the bonds demanded and refused. The remaining facts appear in the opinion.

Bill in equity, heard on demurrer. The bill alleged, substantially, that the Kennebec & Portland Railroad Company was duly incorporated and authorized to construct a railroad from Augusta to Portland, in 1849; that they took a parcel of the complainant’s real estate described ; that for the land taken, the county commissioners, upon due proceedings, awarded him his damages; that being dissatisfied with the award and determination of the county commissioners, a jury, upon…

On exceptions. iScire-facias, for that whereas Noah Woods, of Bangor, in the county of Penobscot, before our justice of our supreme judicial court, holden within and for our said county of Kennebec, at Augusta, on the first Tuesday of March, a. d. 1869, by the consideration of our said justice, recovered judgment against Barker A. Neal, of Gardiner, in our said county of Kennebec, and also against the goods, effects, and credits of said Barker A. Neal, in the hands and…

On RETORT. Writ oe entry, whereby the plaintiff claims to recover possession of premises described in the writ by virtue of a sale of the defendant’s right in equity to redeem them from a mortgage held by the plaintiff as assignee.

Report. Assumpsit on account annexed, and special counts for forty-four months’ service in United States army, at $5 per month, from Dec. 21,1861, to June IT, 1865, $220; and interest 2 years and 6 months, $33; and balance of $300 bounty, $100 = $353. The remaining facts appear in the opinion.

<p> Pleading. Variance. </p> <p>A.declaration setting out an unconditional promise to pay a specified sum in money, is not supported by proof of a promise to pay partly in certain notes of a third person at fifty cents on the dollar, and the balance in money.</p>

On exceptions. Debt on a judgment commenced by trustee process. The facts all appear in the opinion. The motion was seasonably filed. It would not be in accordance with a fair construction of the rule of court to require a person, against whom an action is pending, to file a plea or motion in abatement prior to the term at which he is obliged to appear.

On exceptions. Trustee process against James Hogan, as principal defendant, and S. S. Thompson and J. G. Larry, alleged trustees of Hogan.

On report. The writ was dated Dec. 20, 1866, and was served on Frank Davis only, who alone appeared.

<p>On exceptions.</p> <p>Debt on a judgment, commenced by trustee process against the principal defendant and Joseph Spaulding and Charles B. Foster, and one Titcomb. The trustee, Foster, before a commissioner appointed for that purpose, disclosed, substantially, that he and Spaulding had been partners for many years, under the style of Foster & Spaulding; that on Nov. 30, 1858, the firm made a written contract with the principal defendant, wherein Adams agreed to put one good six-ox team, and one good four-horse, the next logging season, upon the certain specified township of Foster & Spaulding, and cut and haul, mark and land on the Churchill stream all the pine and spruce said teams could haul that season; that Foster & Spaulding agreed to pay Adams three dollars per thousand, to be surveyed as therein stipulated; that the amount due for the lumber hauled, pursuant to the contract, was $1957.12; that they had paid him, as by the exhibit annexed to their disclosure, $1968.92, together with an additional sum of $700 as by his receipt; and that Adams was further indebted to Foster & Spaulding for a balance due on an operation of 1859-60, of $198.45, and for a horse of the value of $75.</p> <p>Upon the filing of the disclosure at the March term, 1868, the plaintiff, under R. S., c. 86, § 29, filed certain allegations, and among them, that Adams 'cut and hauled under the contract a larger quantity of lumber than that disclosed; that the horse was , delivered in 1866, in part-payment of the sum due on this operation, but was worth much less than the sum stated; that the sum said to be due on the operatioiüfor 1859-60 had been settled; and that the amount named in the receipt is covered by the exhibit. Thereupon the trustees had leave to disclose further.</p> <p>On March 1, 1867, the principal defendant, Adams, sued Foster & Spaulding on the written contract mentioned in their disclosure, claiming to recover $3000 for the logging operation of 1858-9, after deducting therefrom certain items of credit amounting to $1900. This latter action was duly entered, tried, and a judgment therein entered in favor of the defendants therein, in May, 1869.</p> <p>The alleged trustees, Foster & Spaulding, thereupon claimed in this action that the judgment in the action, Adams v. Foster, constituted a bar to any further proceedings by this plaintiff against them in this action, and that they were under no obligation to disclose further, and moved their discharge upon that ground.</p> <p>The presiding judge held the judgment conclusive upon the plaintiff and, proforma, ordered the trustees, Foster & Spaulding, to be discharged; and the plaintiff alleged exceptions.</p>

On REPORT. Assumpsit, for that said defendant, at said Rockland, in said Knox comity, on the day of the purchase of this writ, being indebted to the plaintiff, as such administratrix, in the sum of five hundred dollars, for so much money before that time paid, laid out, and expended, by the plaintiff, as such administratrix, for the usq of the said defendant, at his request, in consideration thereof, then and there promised the plaintiff to pay him the same sum on demand;…

On report. Assumpsit by merchants residing in Rockland, upon a policy of insurance upon the schooner Republic, issued April 4,1861, by the defendant company established in Rockland. The policy contained ■the following clause: “ Prohibited from the River and Gulf of St. Lawrence between September first and May first.” The schooner sailed from St. Johns, Newfoundland, to Pictou, N. S., in December, 1861, where she took on a cargo of coal and then sailed for Boston.

On report. Writ of entry, in which the plaintiff sought to recover one undivided fifth part of certain premises situated on Owl’s Head Harbor, and described in the writ, dated Ang. 12, I860. Plea, nul disseisin, with brief statements of denial of the plaintiff’s title and allegation of seisin in the defendant; also alleging that if the title be not in the defendant, it is in one Joseph Jackson, alleged to be seized. The case is sufficiently stated in the opinion.

<p>Equity — pleading and practice in.</p> <p>A suit in equity cannot be maintained by one who has assigned all his interest in the subject-matter of the suit.</p> <p>The plaintiff’s want of equitable interest need not be taken advantage of by demurrer, but the objection may be taken at the hearing on the merits.</p> <p>"When the sole surviving defendant in a bill in equity has no interest in the subject-matter of the suit, the bill will be dismissed.</p> <p>A bill in equity cannot be maintained when its only object is to recover a sum of money alleged to be in the hands of the defendant, inasmuch as the plaintiff has a plain, adequate, and complete remedy at law therefor, in an action for money had and received.</p>

On report. Action to recover a bounty provided in the following resolve, passed by the municipal government of the city of Bangor, Feb-7, 1865: ' That for the purpose of promoting enlistments to fill this city’s quota under the call of the president of the United States, of Dec. 19, 1864, for three hundred thousand men for the military and naval service of the United States, the following sums be paid to each man who has volunteered, or who shall volunteer, or to each…

On exceptions. Case to recover damages for an alleged injury received by the wife, by reason of a defect in Front street, in Bangor, in November, 1868. It was admitted that Front street was legally laid out and established, and the city was bound to keep it in repair.

On report. An action to recover damages done to a horse hired by the defendant of the plaintiff.

<p>On facts agreed.</p> <p>Action for supplies furnished by the plaintiff town to James Walker, as a pauper, who fell into distress in that town, June 22, 1868.</p> <p>Seasonable notice and denial were given.</p> <p>George Walker, father of the pauper, was born a British subject, in Ireland; came to Bangor in October, 1827, where he was naturalized in January, 1834; resided in Bangor, exercising the rights of a citizen, until July, 1841, when he moved with his family into the province of New Brunswick, where he went into business, and has ever since resided, exercising the rights of a citizen of that Province; on April 14, 1842, while George Walker was residing in and exercising the rights of a citizen of that Province, the pauper, the legitimate son of George Walker, was born; he resided with his father in the Province until the spring of 1858, when, being sixteen years of age, with the consent of his father, he went to Iloulton, in this State, to learn a trade ; in August, 1861, the pauper enlisted into the army of the United States as of Woodstock, N. B.; remained in the army until 1865; was married in Iloulton in July, 1865; went into business in Woodstock, N. B.; thence he went with his wife and lived with his father, where he remained in business a short time and then moved with his wife to Houlton and resided there till June 22, 1868, when, on his way to Lewiston for labor, he received an injury in the plaintiff town, fell into distress there, and received the aid sued for.</p> <p>James Walker never resided in Bangor, and never gained a legal settlement in any town in this State in his own right, and he has never been naturalized under our naturalization laws.</p> <p>If, upon these facts, James Walker had a legal settlement in • Bangor, the defendants to be defaulted.</p> <p>A citizen of the United States, by becoming a citizen of another country, does not thereby cease to be a citizen of the United States. 3 Dali. 133; 7 Wheat. 548; 3 Pet. 161; Case of Martin Coszta.</p> <p>The pauper, though born in a foreign government, is a citizen. 10 U. S Stat. 604.</p> <p>No person can by any act of his own, without the consent of his government, put off his allegiance and become an alien. Shanks v. Dupont, 3 Pet. 246.</p> <p>Allegiance attaches at the time of birth, under circumstances in which the family owes allegiance, and is entitled to protection, and no act of the citizen can relieve him from it. Calais v. Marshfield, 30 Maine, 511.</p> <p>Expatriation, and domicil under a foreign government, animo manendi; furnish no evidence of an intention to renounce allegiance, however long the residence is continued. I/udlam v. I/udlam, 26 N. Y. 356.</p> <p>Counsel also elaborately argued, that even if James Walker was born an alien in a foreign jurisdiction, it would constitute no defense to this action, inasmuch as the pauper statute of this State makes no distinction between a citizen and an alien, citing Landaff v. Atkinson, 8 N. H. 535; Townsend v. Billerica, 10 Mass. 411; Canton v. Bentley, 11 Mass. 441; Wilbraham v. Sturbridge, 6 Cush. 61; Payne v. Dunham, 29 111. 125; Knox v. Waldoboro, 3 Greenl. 455; Calais v. Marshfield, 30 Maine, 520.</p> <p>cited Lyndon v. Danville, 28 Verm. 809; Albany v. Derby, 30 Verm. 718; West-ford v. Essex, 31 Verm. 459; Elmer v. Calais, 33 Verm. 468; Calais v. Marshfield, 30 Maine, 511.</p>

On REPORT. Writ oe entry for a triangular lot of land in Bangor, on the ..west side of Essex street,.as delineated on tbe clialk. The only question in the case was the true line of division between the parties arising under the construction of the deeds. The defendant’s deed bounds his land on the south by the plaintiff’s land, as conveyed to him by Fellows & Laughton. The plaintiff claimed under a deed from Fellows & Laughton, dated March 18, 1868.

Bill in equity, to redeem mortgaged land situated in the counties of Piscataquis and Somerset, and made returnable in this county of Penobscot, in which the respondent resides.

On exceptions. Assumpsit for two hundred and fifty dollars for so much money had and received. Writ dated Sept. 27, 1869.

<p>Child — care and prudence of. Railroad — liability of. Nonsuit — when proper.</p> <p>A child of nine years, who, in the daytime, jumps from a sidewalk, lawfully constructed by a railroad company on the side of its railway-bridge, upon the * properly constructed draw, while the same is being lawfully closed, is so wanting in ordinary care and prudence as not to be entitled to maintain an action for the injury resulting therefrom.</p> <p>When the facts are not controverted, a nonsuit may properly be granted, if a verdict in favor of the plaintiff upon the proofs offered by him would be set aside as being against evidence.</p>

On report. Assumpsit for money had and received, whereby the plaintiff, a resident of the defendant town, claims to recover back money paid to redeem land, situated in said town, sold for taxes. The plaintiff paid the money to the collector, “ at the time protesting against said taxes.” He was not arrested, nor were his goods seized, but á portion of said lands were sold, and he redeemed them to save forfeiture.

On eacts agreed. Assumpsit. Writ dated March 2, 1868. The action is brought under R. S. of 1857, § 146, to recover back money paid for taxes assessed upon lands in Greenbush and owned by Josiah Rogers, now deceased, father of the plaintiff, he and they being then residents in Massachusetts. The taxes were assessed for different years prior to 1868.

On exceptions. Case, to recover damages for an injury to the plaintiffs’ stagecoach, caused March 20, 1868, by being upset on account of an alleged defect in Harlow street, in Bangor, in front of the plaintiffs’ public house. It was in evidence, on the part of the plaintiffs, that, on the day alleged, their coach upon wheels was driven by their servant up to the door of their house, and then stopped to take in passengers from their house.

<p>Exception in a deed — construction of. Government title superior to that of aborigines. In real action plaintiff must recover on strength of his own title.</p> <p>In a deed from tbe Penobscot Indians, to tbe Commonwealth of Massachusetts, releasing all right, title, and interest to the lands lying on each side of the Penobscot river, commencing at Nichols Rock and extending up the river thirty miles, was the following clause: “ Excepting and reserving to the said tribe all the islands in said river above Oldtown, including said Oldtown Island, within the limits of the said thirty miles^” Held, that five islands lying along side of Oldtown Island, were not embraced within the exception.</p> <p>The title of the government is superior to that of the aborigines.</p> <p>Where the State conveyed land to the grantor of the defendants’ ancestor, more than thirty years ago, and the defendants, and those under whom they claim, have held the possession and claimed to be the owners of the land during all that time, it is not competent for a tribe of Indians, who do not appear to have any title to the premises, to question the regularity of the sale by the State.</p>

<p>Trespass quare clausum, — cost of survey taxable in.</p> <p>The prevailing plaintiff, in an action of trespass quare clausum, is entitled to have the reasonable costs of a survey made hy order of court included in tlie taxation of his costs.</p>

<p>On report.</p> <p>Assumpsit for money had and received.</p> <p>The money sued for is one-fourth of a sum collected by the defendants for stumpage of logs cut on township No. 5, range 8, west from the east line of the State in Penobscot county, and in the winter of 1868 and 1869. The defendants admitted that they have the money, and are ready to pay it to the rightful owner.</p> <p>The money sued for was claimed by one Lane, who is the owner of the one-fourth township, unless the plaintiff owns it by virtue of a tax-title. Both Lane and the plaintiff claim the fund, and both have demanded it of the defendants. . '</p> <p>The title set up by the plaintiff is under proceedings for the collection of the State tax upon said township for the year 1864, for the non-payment of which sale was made Sept. 19, 1866. The defendants claimed that without any evidence on their part the plaintiff could not maintain this suit, because of the insufficiency of the description in the deed of the treasurer of State, even if all the preliminary proceedings were regular.</p> <p>The description of the premises in the deed of the treasurer of State was simply, “one-fourth, No. 5, R. 8, W. E. L. S.”</p> <p>If the action could not be maintained, the plaintiff was to become nonsuit.</p> <p>Same description used for years — well understood — common language of conveyances. Common in the tax acts. Held good in Adams v. Larrabee, 46 Maine, 519.</p> <p>Tax-title was sustained in llodgdon v. Wright, 36 Maine, 326. The assessment (as see tax act in the laws of that year), was “ B. R. Y. W. of E. line of State.”</p> <p>One-quarter means undivided quarter; such is the natural and ordinary meaning of the term.</p> <p>The description in the deed in llodgdon v. Wright, supra, was “14,593 acres in township B.”</p> <p>The law has been changed since the decision in GlarTee v. Striclcland,> 2 Curtis, 439.</p> <p>on the vagueness of the description in the deed, cited Harvey v. Mitchell, 31 N. II. 575; Smith v. Bodjish, 27 Maine, 289-94; Baymond v. Longworth, 14 How. 76; BonTeendorff v. Taylor’s Lessee, 4 Pet. 362.</p>

On report. Assumpsit on a promissory note signed E. P. Treat & Co., and on the original account for which the note was given, which bore date more than six years earlier than the date of the writ.

<p>On report.</p> <p>Trespass de bonis asportatis, for taking and carrying away a yoke of oxen on the second day of November, 1867. Writ dated Nov. 2, 1867.</p> <p>Plea, general issue, with a brief statement justifying the taking, by his deputy, one Phipps, on a writ dated Nov. 1, 1867, in favor of one Mayo and against one Abner D. Colson, and alleging that the oxen were at the time Abner D. Colson’s property.</p> <p>Phipps’ return upon the writ, Mayo v. Abner D. Colson, bore date “ Nov. 12, 1867, at ten and a half o’clock a. m.,” and was of the following tenor; “ By virtue of the within writ, I have attached one yoke of oxen, the property of the within-named Abner D. Colson, said to be subject to a mortgage to one Benjamin J. Col-son ; whereupon I notified said Benjamin J. Colson of said attachment, and demanded an account in writing of the amount due upon the debt secured by said mortgage; and such account not being given within ten days of said attachment, I retain said oxen under attachment.” The writ was duly entered, and the action is still pending.</p> <p>The plaintiff claimed to hold the oxen by virtue of a mortgage of the same, dated April 26, 1866, and duly recorded, from Abner D. Colson, to secure a note of same date for fifty dollars. Mortgage and note were put into the case.</p> <p>It appeared from the evidence in the case that Abner D. Colson had a mare, and colt three or four months old, at the time the oxen were attached; that when the attachment was made, he did not claim to hold them exempted from attachment, but first declared they were not his, and then said they belonged to his brother Benjamin.</p> <p>The court were to render judgment by nonsuit or default, according to the legal rights of the parties.</p>

<p>On motion to set aside tbe verdict as being against law and against the weight of evidence.</p> <p>Assumpsit upon a written instrument, dated Nov. 19, 1866, signed by the parties, and of the following tenor;</p> <p>It is hereby agreed between Daniel Meservey, of the first, and V. B. Paul, of the second part, as follows: said Daniel Meservey hereby agrees to let said Paul have the colt that comes of the mare; that the said Paul lets the said Meservey have next spring the said mare, to be well used and kept in good condition, and the colt at the said Meservey’s risk until it is four months old. If said Meservey wants to take the colt at fifty dollars, he has the privilege, said colt to be delivered in a good and sound condition, if not, Meservey is to pay said Paul fifty dollars.</p> <p>It appeared that the original trade was made and the mare delivered to the defendant.about the 17th day of September, but the contract was not put in writing until the day of its date, November 19th, following; that neither when the trade was made, nor when the written contract was executed, was anything said between the parties in relation to trading back.</p> <p>That shortly after the contract in" suit was executed, the defendant let the plaintiff have the mare back for a two years old colt, and gave him thirty-seven and one-half dollars to boot; that the written agreement was not given up or mentioned by either party at the time of the making and executing of the second trade.</p> <p>That about two months after the execution of the second trade, the plaintiff sold the mare to one Ordway, and was to have the colt when four months old, or sixty dollars; that the mare foaled the spring following, but the colt died when ten days old.</p> <p>The jury found a verdict for the plaintiff.</p>

<p>On report.</p> <p>Writ of review of a real action not on a mortgage.</p> <p>The original action was a writ of entry, in which Benjamin B. Whitaker (present defendant) was plaintiff, and Benjamin Brown (plaintiff’s intestate) defendant; and was ■ tried ‘at the October term, 1863, when a verdict was rendered for Whitaker, but judgment was not rendered thereon until the October term, 1866, prior to which time, to wit, on the 28th June, 1864, Whitaker conveyed the premises in controversy to his mother.</p> <p>The petition for review was entered by the original defendant (Brown), at the January term, 1867, and the writ of review granted to the administratrix on his estate, at the January term, 1869.</p> <p>The court to enter proper judgment.</p> <p>cited Derby v. Jones, 27 Maine, 857; Pres., etc., Williams' Coll. v. Mallett, 16 Maine, 84.</p>

On exceptions. Debt on a poor debtor’s bond, dated March 5, 1864. The defendants offered parol evidence of a certificate of discharge of the principal, alleged to have been given by two disinterested justices of the peace and of the quorum, within and for this county, the original of which was alleged to have been lost. It was in evidence that the certificate, if any issued, was dated Sept. 8, 1864.

<p>Conditional deed — liability of the grantee incurred by acceptance of.</p> <p>By accepting a deed of real estate “ subject to all the ” grantor’s “ liabilities ” to the assignee of the grantor’s lessee, the grantee assumes the performance of the condition, from which the law will imply a promise on which an action of assumpsit will lie.</p> <p>Thus, in December, 1850, the owner of a two-story building, by a lease under seal demised to the treasurer of a lodge of Odd Fellows the upper room, with the right to assign the same, for the term of ninety-nine years, covenanting in the lease that the lessor’s “ administrators and assigns shall, at their own cost, at all times during said term, well and sufficiently repair, maintain, and keep the outside of said building with diligence and in good and proper order and condition, ... and all the grants, covenants, and conditions herein contained, shall extend to and be binding on the parties and their legal representatives respectively." In April, 1861, the said treasurer assigned the lease to the plaintiffs. In January, 1866, the owner of the building conveyed it to the defendant, “ subject to all” the grantor’s “ liabilities to the ” plaintiffs “ for the hall.” Subsequently, upon being notified by the plaintiffs that the roof was out of repair, the defendant neglected to make the necessary repairs, whereupon the plaintiffs made them and brought indebitatus assumpsit to recover compensation for the same; Held, that the action was maintainable.</p>

On REPORT. Assumpsit on an account annexed for “ labor in taking care ” of the defendant “144 weeks, to March, 1859, at $1.50 per week.” The credit side of the account consisted of items of cash, from $4 to $20 each, commencing July, 1856, and purporting to have been received from Valentine Lufkin and Mark Lufkin. The last item was a credit of $40 cash, dated January, 1860, and was paid by Mark Lufkin. The writ was dated Dec. 18, 1865.

On report. Assumpsit to recover one-third of twenty-five hundred dollars paid, after the death of A. J. Lee (plaintiff’s husband), by the Connecticut Life Insurance Company to the defendant, on a policy of insurance issued by the company on the life of Lee, in his lifetime. The writ was dated Jan. 25, 1869.

On REPORT. Assumpsit to recover the amount paid by the plaintiff to the defendant for a negotiable promissory note, dated June 11, 1855, for $85, payable in one year, given by one Durnin to the defendant and by the latter indorsed, “ without recourse,” to the plaintiff; and for costs and expenses paid on a judgment recovered in February, 1865, against the plaintiff, by Durnin, in an action • against him on the note by the plaintiff. The writ was dated Sept. 14, 1866.

<p>On report.</p> <p>Assumpsit on an account.annexed, of the following tenor:</p> <p>1861, Oct. 20. To amount which you agreed to pay me for Alfred Sprowl, if he would not sue his account and lien-claim on schooner “ Campbell,” $21.50. 1867, Oct. 1. Interest to date, 07.70. Making a total of 029.20.</p> <p>There was also a special count for the same sum.</p> <p>It appeared from the deposition of Alfred Sprowl,</p> <p>That he worked on the schooner “ Campbell ” for Amos Dyer, in the spring of 1861; that when the schooner was launched, Dyer owed him about $40; that in May deponent purchased a cook-stove of the plaintiff for $21.50, promising to pay him when the “Campbell ” should be launched; that Dyer agreed to pay the plaintiff for the stove, but about the time the vessel was launched Dyer left for New York.</p> <p>That within four days after the schooner was launched, the deponent notified the defendants that he had a lien-claim against the vessel; that Dyer had agreed tp pay a bill at the plaintiff’s, and had not done it, and that if it was not paid, the deponent would take advantage of the lien-claim on the vessel; that defendants said they did not want the vessel stopped for that amount, and that they would fix the bill at plaintiff’s; that the Campbells said they had not settled with Dyer, but supposed they owed him $300; that they then went to plaintiff’s store, and Stewart took Campbell for pay for the stove.</p> <p>That in consequence of the foregoing arrangement of Campbell to satisfy plaintiff for his claim against the deponent, the deponent forbore to sue his lien-claim upon the vessel; and that he never received the balance from Dyer or any othpp person.</p> <p>It appeared from the plaintiff’s deposition,</p> <p>That he sold Sprowl a cook-stove to do cooking for the men whom he employed on the “ Campbell; ” that when the time for payment had expired, Sprowl desired the plaintiff to give up the security on the stove and take his lien-claim on the vessel.</p> <p>That when the vessel was launched, Dyer came with Sprowl and agreed to pay the amount Sprowl owed the plaintiff, and the same night Dyer returned and said he could not pay as agreed, because he could not get the money; that plaintiff told Sprowl of Dyer’s retraction, and Sprowl said plaintiff should have to use the lien-claim to make the money out of it; that Sprowl, after going to see the Campbells, wanted to know if plaintiff would give up the lien-claim if they would become responsible ; that the plaintiff responded he would; that D. W. Campbell and Sprowl came, and the plaintiff thinks the first words Mr. Campbell said were, that Sprowl had told him that the plaintiff was going to stop the vessel; that Campbell said they had built a large interest in the vessel, and did not want her stopped for so small a bill, for they had paid too much in to have the vessel detained; that Dyer was away, and that if he, Dyer, did not pay the money, as he had told Sprowl and Campbell he would, they would see it paid; that plaintiff asked Campbell if they wanted it charged to the company, and he said he did not, for he knew Mr. Dyer would pay the money.</p> <p>The defendant’s evidence sufficiently appears in the opinion.</p> <p>The court to give judgment as the law and facts required.</p> <p>cited Cabot v. Haskins, 3 Pick. 93; Sumner v. Williams, 8 Mass. 200; Lent v. Padelford, 10 Mass. 230; Leonard v. Verdenburg, 8 Johns. 29; Farly v. Cleave-land, 4 Cow. 432; 1 Pars, on Con. 357; Babcock v. Wilson, 37 Maine, 376; Bussell v. Babcock, 14 Maine, 138; Davenport v. Mason, 15 Mass. 15; Qoodspeed v. Fuller, 46 Maine, 144; Bowe v. Whittier, 21 Maine, 545; Sanborn v. Morrill, 41 Maine, 467; Nelson v. Boynton, 3 Met. 396.</p>

On REPORT. Case under R. S. of 1857, c. 22, §§ 4, 5, 6, to recover double the value of a fence built by the plaintiff after an alleged assignment by fence-viewers. It appeared that one of the fence-viewers who acted in making the alleged assignment, was the brother-in-law of the plaintiff, who offered no evidence of consent and waiver of this objection on the part of the defendant.

On exceptions. Assumpsit on a special contract for tbe payment of an alleged bounty as a volunteer in tbe United States army. At tbe February term, 1867, tbe action was tried, and tbe jury returned a verdict for tbe plaintiff; whereupon tbe defendant filed a motion to set aside tbe verdict, and tbe action was continued.

On RETORT. Debt on a replevin bond, dated Dec. 16, 1862, given by the city of Bath as principal, and Oliver Moses and others as sureties, and conditioned as follows: “ Whereas, the said city of Bath has this day sued out of the clerk’s office of the supreme judicial court for the county of Franklin, a writ of replevin against A. T. Tuck, for nine hundred and fifty-two cords of wood, attached on sundry writs against the Androscoggin Railroad Company, of the value of…

<p>On report.</p> <p>Writ of entry, dated Nov. 19, 1867. Plea, general issue, with brief statement and a disclaimer as to the lower story of the meeting-house.</p> <p>The case is sufficiently stated in the opinion.</p> <p>1. That under the original deed from John Church to David Moors, dated July 18, 1802, said Moors took the legal estate of the premises therein described, in trust for the use and purpose therein named, subject only to said Church’s contingent right of reversion.</p> <p>2. That the legal estate in the premises, subject to said contingent right of reversion, passed, by virtue of the act of incorporation, from David Moors through his successors down to the plaintiff as his last successor in the office of treasurer.</p> <p>3. That the legal estate never reverted to the original grantor or his heirs by reason of any neglect of the proprietors to choose a treasurer during those years in which no records of the transactions of the proprietors are found; for it is a well-settled principle in equity that “ a trust shall never fail for want of a trustee.” 2 Story’s Eq. Jur., § 976.</p> <p>4. That by the act of incorporation of 1822, neither the proprietors nor their treasurer were authorized to take and hold any other rights, title, or interest in land, except such as were conveyed by the original deed from John Church to David Moors in 1802; hence the proprietors took nothing by the deed of quitclaim from said John Church to them, dated Feb. 7, 1838.</p> <p>5. That neither the proprietors nor their treasurer were authorized by the act of incorporation, or by law, to convey the premises at all, or to divert them in any way from the purpose named in the original deed; nor could they do so except by authority from the legislature, which they never had. Hence the proprietors conveyed nothing to the county by their deed given by John Church, treasurer, dated June 24, 1839.</p> <p>6. That if the deeds of 1838 and 1839 were operative to convey any title to or interest in land, the defendants, before they can claim title by virtue of the deed to them, must show affirmatively that prior to the delivery of their deed, the $200 had been paid to ( Captain Henry Stewart for the use of John Church’s wife, as it was only upon the condition of such payment -that John Church authorized the delivery of his deed to the proprietors. The evidence in the case wholly fails to show that said payment was prior to the deed to the county.</p> <p>7. That the deed from Church to the proprietors, dated Feb. 7, 1838, being only a deed of release and quitclaim, if its delivery was subsequent to the deed from the proprietors to the county, nothing would thereby enure to the county. Pike v. Calvin, 29 Maine, 183; Miller v. Pkuing, 6 Cush. 40.</p> <p>8. That if any rights whatever in the premises could have passed to the county by virtue of their deed from the proprietors, of June 24, 1839, the only rights which the county could by possibility have taken were such contingent reversionary rights as the proprietors had then acquired, if any, from John Church, sr., by virtue of his deed to them, dated Feb. 7, 1838; because the legal estate in the premises, which had previously vested in Moors and his successors in the office of treasurer, in trust for the use and purpose named in the original deed, could never be conveyed by a deed executed in the name of “ The Proprietors of the Center Meeting-house in Farmington, by John Church, their treasurer;” nor does John Church, treasurer, undertake by said deed to convey the legal estate vested in him as treasurer, nor can said deed by legal construction have any such effect.</p> <p>9. That no possession of lands under a claim of title based upon a conditional grant, like the deed of June 24, 1839, from the proprietors by John Church, treasurer, to the county, containing conditions and reservations, will work a disseisin, however long-continued. The deed contains reservations, and is conditioned that the grant “ shall be void whenever a court-house for the use of said county be erected on any other site.” Parker v. Proprietors of Looks and Canals, 3 Met. 101.</p> <p>10. That if the defendants and the proprietors have had a joint or common possession of tliat part of the demanded premises now claimed by the county, so that neither party has been dispossessed, the seisin still remains in the party who has the true or actual title. Brimmer v. Proprietors of Long Wharf, 5 Pick. 131. The evidence shows that the proprietors and defendants have both occupied the court-room, each party claiming to do so as matter of right.</p>

On exceptions, and motion to set aside the verdict for the plaintiff, as being against the weight of evidence. Debt on an administrator’s bond, brought by special leave of the judge of probate for this county. Plea, non est factum, with brief statement alleging full performance on the part of the defendant, Stevenson.

On exceptions to the ruling of Goddard, J., of the superior court for the county of Cumberland. Debt, “ for that the said defendant, at said Portland, on the 30th day of May, a. d. 1870, by his writing obligatory of that date, sealed with his seal and here in court to be produced, therein sold to the plaintiff the good-will of his business, and therein agreed not to carry on the boot and shoe business in the city of Portland for one year from the date thereof.

On exceptions. Libel por a divorce a vinculo. The libel was dated Sept. 22, 1864, and entered at the October term following. At the following January term personal notice was ordered upon' the libelant, and on Feb. 25, 1865, complied ■with. At the October term, 1867, the libelee filed a motion to dismiss upoii the ground that the bonds of matrimony between him and the libelant had been dissolved upon his libel; but the presiding judge overruled the motion.

<p>Oath of town cleric — record of certificate of. Taxes — assessment and collection of. Land assessed — what is and is not a sufficient description of.</p> <p>The'record, “ Oxford, ss., March 3,1862, personally appeared William Woodsum, and took the oath necessary to qualify him to discharge the duties of clerk of the town of Peru for the ensuing year, according to law, before me, Samuel Holmes, moderator. A true copy of certificate, William Woodsum, 'town clerk,” is sufficient evidence of a compliance with R. S., c. 3, § 17 ; and that the oath prescribed in § 14 was administered.</p> <p>The certificate duly assigned by the assessors, “ that the foregoing pages contain an inventory of polls and estate, real and personal, liable to be taxed in ” a ' town named, sufficiently indicates that the real estate described above lay in such town.</p> <p>In the assessment of taxes on land of resident owners, the parcels taxed must be definitely and distinctly described, or no lien will attach.</p> <p>Thus, neither of the following descriptions is sufficient: “Part of the two river lots joining N. Walker’s and Pettingill farm, lots 1 and 2, range 1,100 acres;” “ A piece of land nortli-westerly of and adjoining S. G. Wait’s land, lot 5, range 3, 6 acres; ” “ One-half of lot north-westerly of Luther Jackson’s farm, lot 2, range 2, 50 acres; ” “ The lot joining B. Walton’s farm,lot 1, range 2,85 acres; ’ ‘ ‘ A piece of land "between A. J. Churchill and J. H. Weymoutli, part of lot 7, range 3, 27 acres; ” “ One-half island opposite S. Holmes’, 15 acres;” “A part of E. A. Pollard’s farm, lot 6, range 5, 25 acres;” “ Part of lot joining Josiah Hall’s, lot 1,range 5,40 acres;” “The lot being southerly and joining J. P. Hopkins’ and S. JR. Newell’s wood-land, lot 3, range 4, 60 acres; ” “ Half of lot westerly of J. S. Holmes’ farm and adjoining it, lot 4, range 2, 50 acres; ” “A piece of land easterly of Worthly Pond, joining W. Karlen's- farm, lot 7, range 5, 8 acres.”</p> <p>But each of the following is sufficient: “The island opposite N. Walker’s, and above Alden’s Perry; ” “ Second lot from S. Holmes’,lot4, range 3,100 acres; ” “ Second lot from I>. L. Conant’s land, lot 3, range 3, 85 acres; ” “ Larry Parrn on the hill formerly owned by S. Roberts, being part of lot 1, in ranges 3 and 4, 75 acres; ” and “ Second lot from J. Lunt’s, lot 6, range 3,100 acres.”</p> <p>The sale of land for taxes will not be illegal, because the lists of assessments upon the polls and estates required by R. S., c. 0, § 56, contain no description of the lands assessed other than the number of acres and the numbers of the lots and ranges in which they are situated.</p> <p>Nor because it does not affirmatively appear that “ai-eeord of the assessment and of the invoice and valuation from which it was made,” “ or a copy of it,” was deposited in the assessors’ or clerk’s office, “before the taxes were committed to the proper officer for collection.”</p> <p>Nor because the warrant to the collector for the collection of State, county, and town taxes also contained a direction to collect a certain “ sum voted by the inhabitants of school district, No. 9,” when it did not appear that the provisions of R. S., c. 11, § 39, had been complied with.</p> <p>Nor because it contained a direction to collect a deficient high way-tax when it did not appear that the highway surveyor gave the statute notice to the delinquent tax-payer, or returned to the assessors the lists required by R. S., c. 18, §45.</p> <p>Nor because it does not appear that prior to the notice of sale, the collector made a demand on the owner for the tax on the land advertised.</p> <p>Nor because the collector’s notice of sale did not designate the owner’s “ right,” or contain any such description of the land “ as is necessary to render it certain and plain,” other than the number of acres and the number of lot and range.</p> <p>Nor because the collector’s cei-tificate upon the notice filed with the town clerk did not specify what notice was given.</p> <p>Nor because there was no evidence that the owner was notified of the sale as required by § 151, except so far as it appeared from the collector’s return upon the back of the notice, and in his “return with a particular statement of his doings in making the sale,” that he has “ given the notice of said intended sale as required by law.”</p> <p>Nor because the collector’s return to the town treasurer was not made within four days of the time notified for the sale, but was made within four days of the time to which the sale was adjourned and actually made.</p>

On exceptions. Case to recover damages for an injury caused on the 17th October, 1866, to the plaintiff’s leg by an alleged defect in a highway in the defendant town. The alleged defect consisted of a guide-board, painted white with black letters upon it, which bad fallen from the post, and had been placed upon a hemlock bush, four feet high, near the traveled part of the road.

<p>Voluntary association — nonjoinder of all the members must be pleaded in abatement.</p> <p>In an action on a promissory note, signed by the defendants as directors, wlierein a voluntary association, called “ the Machias Mining Company, promise to pay Ellis M. Smith or order” the sum named at the time specified; Held, (1) That all the members of the association, if any, being liable, the action should be against all; but (2) That the action against the defendants alone is maintainable, unless they plead in abatement the non-joinder of their associates.</p>

On report from the superior court. Assumpsit on a promissory note of the following tenor: “ $3000. Portland, Oct. 22, 1866. Six months after date, for value received, I promise to pay Emery Andrews three thousand dollars. [Stamp.] James E. Fernald. (On the back.) Otis Cutler, Jas. J. Marrett.” The remaining facts are sufficiently stated in the opinion.

<p>On REPORT.</p> <p>Writs op entry for four lots adjoining of land witb stores and wharves thereon respectively, situate in Bangor, on the west side of Exchange, formerly Poplar street.</p> <p>The land in controversy was formerly the property of Zadoc French (under whom both parties in each suit claim), who died intestate in the spring of 1831, leaving three sons, Ebenezer, Frederic F., and George S. French, his only heirs.</p> <p>On Aug. 29,1831, through proceedings in the probate court for this county, the lots in controversy with others were assigned to Bulah French, widow of Zadoc, as her dower “ against common right,” She died April 18, 1863.</p> <p>April 3, 1833, Frederic conveyed all his interest in his father’s estate to his brothers Eben and George; but the deed was not delivered until March 23, 1836, when it was recorded. It contained the clause “ providing that said (gran tees) are to save said Frederic free from all claims harmless, on any deeds or conveyances which he may have signed, and acknowledged to convey any of said real estate mentioned in this deed.”</p> <p>On Aug. 14, 1837, one A. G. Brown, on a writ in his favor against Ebenezer French, caused the latter’s real estate to be attached. The writ was entered at the October term, 1837, and continued till the June term, 1843, when it was defaulted and continued for judgment till June term, 1845, when judgment was rendered, and within thirty days thereafter the execution issued upon the judgment was levied upon Ebenezer French’s undivided half of the demanded premises. The writ contained a count on a note and a general money count, without any specification of claim to be proved under it.</p> <p>On Oct. 10, 1837, one Wiggins Hill sued out a writ in his own favor, upon a note against George S. French, which was duly entered and continued from term to term till Juno term, 1838, when it was defaulted and continued for judgment to October term, 1842, when judgment was rendered; and within thirty days thereafter the execution issued upon the judgment was levied upon George S. French’s undivided half of the demanded premises.</p> <p>On July 25, 1843, Brown conveyed the land levied upon by virtue of his execution to one of the plaintiffs (George Stetson), who, on July 18,1843, conveyed one-half of his interest to the other plaintiff (Poor) ; and, on April 13,1843, Hill conveyed his levy to said Poor, all of which deeds were seasonably recorded.</p> <p>Ebenezer French was appointed administrator of his father’s estate, and at the June term, 1831, of this court, he was duly licensed to sell real estate of his intestate at auction, sufficient to pay the sum of $25,000 of the just debts and incidental charges, his whole real estate being inventoried at about $60,000. The court at that term adjourned, finally, on June 18,1831. Before acting under the license, the administrator gave the bond, took the oath and gave the notice prescribed by the statute, and sold the lots in controversy at public auction, on June 14, 1832.</p> <p>The defendants, severally, offer the following described deeds, given by the administrator, viz.,</p> <p>1. Deed “A.” to Frederic F. French, of the “Kimball lot,’’ dated June 29, 1832, and acknowledged next day.</p> <p>2. Deeds “ B.” and “ C. s ” the former to the defendant Larrabee, and the latter to D. E. Wadleigh, of the lots claimed in the Larrabee suit, both dated June 14, 1832, and acknowledged July 16, 1832.</p> <p>3. Deed “ D.” to D. E. Wadleigh, of the Hinckley & Egery lot, dated June 14, 1832, acknowledged Jan. 22, 1833.</p> <p>F. F. French conveyed the “ Kimball ” lot (conveyed to him by deed “ A.”) to Pillsbury & Davis, by warranty deed, dated and recorded J une 17, 1833, and it is admitted that this title is now held by Kimball’s landlord, under whom Kimball holds the premises as tenant for years; also, that the premises in deed “ C.” have since been conveyed to Larrabee, and those in deed “ D.” to Hinckley & Egery, tenants in the suit at bar.</p> <p>After receiving their respective deeds, the grantees, in 1832, severally entered upon the lots in question, and, during that or the next year, erected a block of brick stores on the lots, and made other improvements, and have continued to occupy the same until the present time, and for these improvements and erections a claim was filed for betterments. Some improvements were also claimed to have been made on the lots since the statute of March 4, 1843, went into force. The demandants also filed request for estimation of value of the land, without the improvements, agreeably to statute.</p> <p>The tenants offered the following facts in evidence, all which are objected to as irrelevant, viz.,</p> <p>Ebenezer and George S. French were both bankrupts under the United States Statute of 1841. Their petitions were both dated Feb. 21, 1842, filed Feb. 25, 1842, decreed bankrupts April 5, 1842, and both were discharged; Ebenezer by decree dated Jan. 30, 1844, and George by decree dated Aug. 6, 1842.</p> <p>Defendants offer to prove farther that the deeds were all made out by Wm. Abbot, Esq. The one to F. F. French was originally dated June 149 1832, and the consideration was paid on that day, but George B. Moody altered the date to the 29th to make it accord with the date of release of dower annexed to the deed. Plaintiffs object to the admission of the testimony as irrelevant.</p> <p>The defendants also alleged that certain facts have a tendency to show frauds in the levies, as follows, viz., that George’s interest in the Kimball store was set off for $450, Eben’s interest in same for $300, George’s interest in the Larrabee corner store was set off for $450, Eben’s for $375.</p> <p>That George’s interest in the other Larrabee store was set off for $450. Eben’s for $300.</p> <p>And similar- facts respecting the Hinckley & Egery store. That the Kimball store was worth at that time, in cash, $3,000. Larrabee corner store $3,500, and the other $3,000, and so of the Hinckley & Egery store, and that they have been worth those sums ever since.</p> <p>That the appraisers were induced by the creditors, or their attorney, through misrepresentation, that they should not include in the valuation any buildings, or erections, in their estimate of the value of the land; that none of the defendants or persons under whom they claim were present at the levies, or had any knowledge of the same ; that said appraisers were also induced to appraise said property lower than their value, by a representation that there was doubt whether the debtors had any interest in the property. Plaintiffs denied all said allegations, and on the contrary averred that at the time of said levies the property, and all property, was greatly depreciated in value, and that the valuation was made fairly, and without any improper influence from the creditors, or their attorney, and object to the admission of all the testimony.</p> <p>If these facts are admissible, and have any tendency, such as could authorize a verdict, if proved, to show fraud so as to affect the levies or avoid them, then the cases to stand for trial.</p> <p>The cases were submitted to the full court for decision, according to the legal rights of the parties, the court to draw conclusions of fact from the evidence or case reported as a jury might do. If the actions cannot be sustained, a nonsuit to be entered, otherwise a default, except as.above agreed, and in the case of a default to decide if the tenants are entitled to betterments, if so, the question of their value and of the value of the land without the improvements, is to be submitted to a jury, unless the parties agree on some other mode of adjustment.</p> <p>■ The administrator’s deeds were all in common form, — made on same kind of blank.</p> <p>Annexed to deed “ A.,” after the certificate of acknowledgment of the grantor, Ebenezer French, was the following:</p> <p>“And I, Bulah French, widow of the aforesaid Zadoc French, for the consideration aforesaid, do hereby remise, release, and relinquish to the said Frederick F. French, and his heirs and assigns forever, all my right and title to dower, in and to the aforegranted premises.</p> <p>“ In witness whereof, I, the said Bulah French, have also hereunto set my hand ¡and seal, this twenty-ninth day of June, in the year of our Lord, one thousand eight hundred and thirty-two.</p> <p>Bulah French. [Seal.}</p> <p>In presence of</p> <p>Geo. B. Moody.</p> <p>“ I certify that this deed of release was annexed to the foregoing instrument of conveyance from said Ebenezer French to said Frederick F. French, before either of said instruments were 'signed.</p> <p>(Signed) Geo. B. Moody, Justice Peace.”</p> <p>Recorded July 5, 1882.</p> <p>The attestation clause of deed “ B.” was as follows:</p> <p>“ In witness whereof, I, the said Ebenezer French, administrator as aforesaid, have' hereunto set my hand and seal, this fourteenth day of June, in the year of our Lord, one thousand eight hundred and thirty-two. And Bulah French, relict of the said Zadoc French, in consideration of one dollar paid by said Samuel Larrabee, doth hereby sell and release to him her dower and all the interest which she hath in the premises.”</p> <p>The attestation clauses of deeds “ C.” and “ D.” were the same mutatis mutandis.</p> <p>in addition to many propositions sustained by the court, contended,</p> <p>That the administrator’s deeds were not fully executed during the life of his license; that the license expired June 18, 1832; that the deeds of the Larrabee and Hinldey lots were not acknowledged until the year had expired. The acknowledgment is part of the deed, and is so regarded by the courts and legislature. An express provision requires it. Without it, the deed is only provissionally or partially good, — good only against parties and persons having notice. The deed conveys the title, absolutely, only when acknowledged. Without acknowledgment the deeds could not have been recorded, and the land would have then been exposed to attachments. Pole v. Thurlow, 12 Met. 157-162 ; Gaily. Buttrick, 4 Cush. 345; Gfibbs v. Sivift, 12 Cush. 393.</p> <p>If it be part of the deed, it can be performed by the administrator only while his license lasts.</p> <p>It is the administrator under his license who acknowledged, and no other acknowledgment is good.</p> <p>Being no legal acknowledgment there can be no legal record, for a deed not properly acknowledged cannot be properly recorded.</p> <p>But if acknowledgment be not part of the deed, the deed must be signed, sealed, and delivered within the year. Wellman v. Lawrence, 15 Mass. 326; Macy v. Raymond, 9 Pick. 285; Jewett v. Jewett, 10 Gray, 32; Marr v. Boothby, 19 Maine, 573; Marr v. Hobson, 22 Maine, 321.</p> <p>In Massachusetts, by the express provision of the statute, deeds made after the year has expired to perfect a sale made before are good. Stat. of Mass., 1840, c. 97; R. S. Mass., 1860, c. 102, § 47.</p> <p>Maine has no such statute. A similar statute, covering some defects incident to administrator’s deeds, was enacted, but does not embrace the defect in question. R. S. of 1841, c. 112, § 35; R. S. of 1857, c. 71, § 29.</p> <p>Under these statutes Marr v. Boothby, supra, and Mason y. Ham, 36 Maine, 573, were decided. These statutes could not affect case at bar, inasmuch as the statute was not enacted until long after the deeds were made.</p> <p>Where a deed is completed, bearing date even with its acknowledgment, there would seem to be no doubt that in the absence of all evidence, the deed was delivered on the day of its date or execution. The presumption fails when it is apparent from the face of the deed that it was not completed at the time of its date. Thus where it refers to one of a later date, the presumption could not prevail. Sweetsir v. Lowell, 33 Maine, 446. See also, Smith v. Porter, 10 Gray, 68 ; Jackson v. Bill, 5 Wend. 532-3; 2 Waslib. on Real Prop. 578.</p> <p>The presumption does not prevail in respect to deeds not acknowledged. JElsy v. Metcalf, 1 Den. 323; Jackson v. Stevens, 16 Johns. 110; Poe v. Boivland, 8 Cow. 277; Osterhart v. Shoemaker, 3 Hill, 513; Brown v. Burton, 5 Dowl. & L. 289, 2 B. C. 220.</p> <p>Where a deed is acknowledged by several grantors, on different days, all subsequent to the date, the presumption that it was delivered on the day of its date is destroyed. Henderson v. Baltimore, 8 Md. 352; Loomis v. Pingree, 43 Maine, 299. The date indicating the day of completion must represent the day of delivery; but when on its face it shows itself incomplete on the day of its date, the presumption of delivery then fails.</p> <p>Acknowledgment is one of the essentials required by the statute. It is the means necessary for its preservation and protection of the title. It is so essential that the statute carefully provides a remedy for the defect. R. S., c. 73, §§ 17 to 23 inclusive.</p> <p>The defendants have all the means of proof, and if the delivery did actually take place before acknowledgment, they can show it and overcome the presumption.</p> <p>after elaborately discussing the point concerning the delivery of the deeds sustained by the court, contended,</p> <p>That as to deed (C A.” the defendant must recover upon adverse possession; that Mrs. French did not convey any dower, but merely relinquished her right which was a waiver only; that the defendant was not under any life-estate, because there was none, and he had purchased none.</p> <p>Plaintiffs cannot recover because of disseisin in all the cases. It is no answer to say that any of the defendants held a life-estate, for they claimed under administrator’s deeds ; that the plaintiffs are estopped from denying such a seisin as would entitle them to an action, because in their levies they acknowledged a seisin in each case, instead of accepting the assignment of a remainder, as by statute. So they could have sued within the assumed life-estate, or else their levies were void.</p> <p>Defendants hold by disseisin because they are not the direct grantees of the administrator and his mother; and because the tenants supposed and believed that they were absolute owners against all the world, and always acted as such. Will the court decide that we were in law conscious of having a life-estate, and that we were putting an immense value, by way of improvement, upon that estate, of a permanent character? We maintain that if a person holds land for twenty years, believing himself an absolute owner, and in all respects acting as such, that a disseisin is obtained, no matter how much or how little title he has, or how he got it. The very object of the law is to make even his mistakes a protection to him. The tenants would naturally have supposed that Mrs. Frerich merely released a right of dower. Most professional men would have supposed the same thing. Mrs. French nowhere appears in the body of the deed. Her act was in fact merely a waiver. It so resulted. See 23 Maine, 276 ; 27 Maine, 381; 33 Maine, 396.</p> <p>Plaintiffs’ levies were void because attachments lost by the bankruptcy of the French’s. Bowley v. Bowley, 41 Maine, 543; Stone v. Everett, 3 Story, 446.</p> <p>If, notwithstanding the bankruptcy, the plaintiffs had a lien by attachment, it was only for what existed at the time of the bankruptcy, for the debt and not the subsequent costs; and the lien was drowned by levying for both debt and costs. The debts could have been proved in bankruptcy. Haggerty v. Amory, 7 Allen, 458.</p> <p>The attachments were lost by a want of continuance of the action at the June term, 1842. There was a break which will make void the attachments, even though judgment was made up regularly. This is settled precisely in the case of Leighton v. Reed, 28 Maine, 87.</p> <p>Though the judgment may be good, the attachment became void. The copy of the docket, which may be found herewith, will show, that while other actions, standing for judgment, were continued (a few put into a copy as a sample), these cases were not, unless included in the order. First, before final order, which is copied. These actions which had been defaulted, and were ready for judgment, could not be included in the general continuance.</p> <p>Dower was not correctly set out to Mrs. French.</p> <p>The attachment void, the writ containing money count without any specification.</p> <p>Levies erroneous, being for too much by seventeen cents. Brown v. Bunt, 37 Maine, 423 ; Oatman v. Walker, 33 Maine, 71; (Hidden v. Chase, 35 Maine, 90. His return of items when he makes them is conclusive. Boyd v. Page, 30 Maine, 460.</p> <p>The remedial act, R. S., c. 76, §§ 20, 21, so far as these levies are concerned, would be retrospective and unconstitutional.</p> <p>In neither of the levies was the dower of Mrs. French noticed so far as the locus in quo is concerned. A seisin instead of assignment was given.</p> <p>One-third of lot in deed “ A.” was not reached by the plaintiifs’ attachments, because F. F. French’s deed of June 17, 1833, conveyed it to Pillsbury and Davis under whom defendant now claims.</p> <p>Defendants entitled, to betterments made since March 4, 1843. Act of that year. ■</p> <p>Why does not the five years’ limitation apply here ? See that and other provisions in R. S., c. 71, §§ 28, 29. This would apply to all the cases. The retrospective part of this act is constitutional. .Beal v. Nason, 14 Maine R. 344.</p> <p>There was fraud in the levies; 'and if all else fails in respect to any portion of the estate sued for, then a jury must pass upon the question. Hilton v. Hanson, 18 Maine, 397.</p> <p>The case shows deceit, and circumvention practiced upon the appraisers. If such conduct as is offered to be shown here does not amount to enough to submit a question of fraud to a jury, then there is no remedy for extraordinary cheating, when done by attorneys and officials.</p>

At the February term of the supreme judicial court holden at Bangor, in Penobscot county, on the first Tuesday of February, A. d. 1869, the grand jury found the… Held: that when the indictment charged the prisoner with murder in the first degree, that a verdict finding him “guilty in manner and form as he stands charged in the indictment,” is a finding of guilty of murder in the first degree. The court say, “ the jury find him guilty in manner and form as he stands charged.