Volume 59 — Maine Reports

Bill in equity against the Portland & Kennebec Railroad Company, John Patten and Marshal S. Hagar, trustees, Richard D. Rice, George P. Patten, William D. Sewall, Darius Alden, N. M. Whitmore, Geo. F. Shepley, J. B. Brown, and Horatio N. Jose. Case heard on bill, answer and proofs.

On report. Petition for a writ of prohibition. The petition, signed by the town agent and selectmen of the town of Waterville, specially instructed thereto by a, vote of the town, alleged substantially, that in February 1870, a notice from the county commissioners, dated Feb. 9,1870, upon a petition (representing that public convenience and necessity demanded a bridge across Kennebec river, near Ticonic Falls, between tbe towns of Waterville and Winslow, and praying that a…

<p>ON Report.</p> <p>Assumpsit, tlie declaration containing tbe following counts:</p> <p>1. “For that said defendant, at Portland, on the 29th day of August', a. d. 1863, by his note of hand of that date, by him signed, for value received, promised the plaintiffs to pay them, or their' order, four hundred and forty-four dollars and twenty-nine cents, in one' month after date; yet though often requested, he has not paid the same.</p> <p>2. “Also, for that said defendant, at Augusta, on the day of the date hereof, being indebted to the plaintiffs in the sum of three hundred and fifty dollars, for so much money "before that time, had and received by the defendant to the use of the plaintiffs, and for the same sum paid, laid out and expended by the plaintiffs, at the request and for the benefit of the defendant, then and there, in consideration thereof, promised the plaintiffs to pay them the same sum on demand; yet, though often requested, he has not paid it, but neglects and refuses to do so.</p> <p>3. “Also, for that the defendant and the Augusta Shovel Company at Portland, on the 29th day of August, 1863, by their promissory note of that date, by them signed, for value received, jointly and severally promised the plaintiffs to pay them or their order, four hundred and forty-four dollars and twenty-nine cents, in one month after date ; yet though often requested, neither the defendant nor the Augusta Shovel Company has ever paid the same, but neglects and refuses so to do.</p> <p>The note declared on and produced as evidence to support the first and third counts, was of the following tenor:</p> <p>“$444.29. PORTLAND, Aug. 29* 1863.</p> <p>One month after date, we promise" to pay to the order of E. Atkins & Co. four hundred and forty-four dollars and twenty-nine cents. Value received. Augusta Shovel Co.</p> <p>A. D. BeowN, Pm.”</p> <p>It appeared that the note was given by the defendant to the plaintiffs, for the debt of the company, and discounted at Freeman’s Bank.</p> <p>Oct. 29, 1863, the defendant wrote the plaintiffs, “I will take care of note in a few days.”</p> <p>Dec. 1, 1863, he wrote to them, “I paid in at Freeman’s Bank on our note the day I was there.”</p> <p>Dec. 18,1863, he wrote them, “I paid $100 on the note, when at Augusta, to the cashier. Will you collect the balance of Baker & Co. (suppose you are one), and take up the note, and we can, arrange the balance when I see you. I have written the cashier you will take care of the note. Amount of note $444, — cash of A D. B., $100 = 1344 — $153 (you owe me) = $191 balance to pay.”</p> <p>There was a memorandum on the note as follows: “ Bal. paid by E. Atkins, Dec. 24, $350.47.”</p> <p>It appears that the plaintiffs paid tbe note the latter part of December or fore part of January, and that the defendant repeatedly promised to pay the balance paid by the plaintiffs after deducting the amount of shafting which Brown sold to the plaintiffs, and formerly belonging to the Shovel Company, amounting to $146.72.</p> <p>On the part of the defense it appeared that the Augusta Shovel Company was organized Oct. 18, 1860; that Brown was president, owning three-fifths of the stock; that as president he was chief manager, and was authorized to sign notes and negotiate its business ; and that the defendant, some time after 1862, bought in all the stock. ■</p> <p>The case was withdrawn from the jury and reported to the full court, who were to render judgment for the plaintiffs or defendant, as the law required.</p> <p>applying the test laid down in Brad-lee -v. Boston Cflass Go., 16 Pick. 347, contended that the note was that- of the company and cited R. S. c. 1, Rule XXI, § 4; Andrews v. Estes, 11 Me. 267; Byer v. Burnham, 25 Me. 1; Rogers v. March, 83 Me. 106; Kidder v. Knox, 48 Me. 551.</p>

. Case to recover damages for a personal injury received by the plaintiff by falling into a “roll-way” leading to the basement of defendant’s block of stores, by reason of alleged negligence of the defendant in leaving the roll-way unfenced and unprotected. The u defendant was the owner of the block of stores on the west side of State street, in Augusta, opposite the court-house, known as Concert Hall block, and consisting of four stores.

Bill isr Equity beard on bill, answer, and proofs. The bill alleges, substantially, that on May 13, 1856, the plaintiff was creditor of one Amos Wyman, deceased, whose estate was rendered insolvent; that he recovered judgment and execution against the estate of the deceased at the March term, 1865; that he duly levied his execution on two parcels of land described on May 25, 1865; that on May 13, 1856, said Amos owned said pieces of land and conveyed the same to his wife…

ON REPORT. Assumpsit to recover three hundred dollars, money received by the defendant from the town of China as the bounty for the enlistment upon China’s quota into the military service of the United States, of the plaintiff’s intestate. The writ was dated Feb. 10,1869, and it contained one count on an account annexed, and another for money had and received on January 9, 1864.

<p>ON REPORT.</p> <p>Trespass to recover damages for carrying away eartli and grass from the west side of tlie center of the road leading from Sidney to Winthrop, near to the pair of bars as represented on the diagram.</p> <p>The plaintiff claimed to own to the center of the road. His title is set out in the premises of the two deeds described in the opinion.</p> <p>The defendant’s title was derived from one Shedd, whoso deed described the premises as follows: “ Beginning in the north-west corner of lot numbered 10,7, thence south south-west by Bernsly Caldwell’s land, to land lately owned by Otis Follett; thence east south-east by said Follett’s land, and across lots No. 107 and 105 ; thence to the north-east corner of lot No. 105; thence by a road west north-west to lot No. 107, and on the same course to the first bound, —excepting a piece of land conveyed by Robert Brinley to Bernsly Caldwell.”</p> <p>The piece of land conveyed by Brinley to Caldwell, and comprising the foregoing exception, is described as follows:</p> <p>“ Beginning at the nortli-west corner of lot No. 107, thence southerly the course of said lot, to land owned by Otis Follett; thence east south-east by said Follett’s land, to a road leading from Sidney to Winthrop ; thence northerly in the course of said road, to the north end of lot 107; thence westerly to the first bound.”</p> <p>The defendant offered to prove that he had had the undisputed privilege of cutting the grass on the spot in dispute for thirty years, but the presiding judge excluded it.</p> <p>The case was then reported to the full court, with the agreement that if the plaintiff was entitled to hold to the center of the road leading from Sidney to Winthrop, the defendant was to be defaulted, and damages assessed by the clerk, unless the evidence offered and excluded should have been admitted.</p> <p>Snell owned the land conveyed by Brinley to Caldwell, when he convej'ed to plaintiff, and his east line was to the center of the road. Snell intended to convey all and not reserve the strip lying between center of the road and the west line of the road. If he did not convey then he owns it now. Same may be said of his deed to Packard, and Packard to plaintiff.</p> <p>Snell’s deed to the plaintiff, conveying to the center of the road, the place of beginning in Packard’s deed to Cottle being the “southeast corner of said Cottle’s south line;” would be the center of the road. Washb. on Real Prop. ed. 1862, 635.</p> <p>On the reservation “ to the public,” counsel cited Pihev. Monroe, 36 Maine, 309; Brackett v. Persons Unknown, 53 Maine, 238.</p>

On exceptions. Replevin for two steers. Plea non cepit, and brief statement tliat tlie defendant purchased the steers at a public auction, held by a deputy-slierifF for this county, on a writ in favor of B. F. Butler against F. L. Wentworth. All the proceedings relating to the sale were regular.

<p>Torts — executors as such not liable for.</p> <p>Case will not lie against executors as such for damages caused by tlieir raising the dam on a stream, whereby the plaintiff’s mill was flowed, when the dam ' and the lands on which it is situated had, under the will of their testator, become vested in the executors and others.</p>

<p>Mortgage — foreclosure of — waived by receipt of part-payment.</p> <p>The receipt, after foreclosure, of a part of the debt secured by a mortgage of real estate, under an express understanding that the foreclosure was opened, will be deemed a waiver of the foreclosure.</p>

<p>ON EXCEPTIONS.</p> <p>The parties submitted, under R. S. c. 108, tlie following demand, signed by the plaintiff and annexed to the submission:</p> <p>“I claim that I am one of the copartners in the firm of N. O-Mitchell & Co., in an ice operation, and as such am entitled to one-sixteenth of all the property and profits of said firm, and that said profits amount to five thousánd dollars, with interest on the same, from the several times when the dividends were made or the money received by said Mitchell on said one-sixteenth.</p> <p>“ I also claim damages of said Mitchell, because he has restrained me,' by his actions, from disposing of my interest in said partnership property.”</p> <p>After a hearing, the referees reported that they find “ that said I. A. Stanwood was and is a member of the copartnership of N. O. Mitchell & Co., concerned in an ice operation; that he did not put in any capital of his own toward paying the expenses of their operations last winter, but that said Nathan O. Mitchell did pay for him the sum of twelve hundred and fifty dollars; and we allow said Mitchell to retain, on that account, the ¿first dividend of twelve hundred and fifty dollars, made to the members of the copartner^ ship, Aug. 10, 1870, and also allow him, as interest and bonus for advancing the same, the sum of eighty-seven dollars and fifty cents. We also find that said Stanwood was and is the owner of one-sixteenth of all the property of the copartnership as fully paid up. We also find that the net profits of said one-sixteenth arising from the operations of last winter, already divided and received by said Mitchell, were three thousand two hundred and eighty dollars and seventy-eight cents; that interest added thereto, from the times when received, make it amount to 13,322.82; that from this we deduct, as aforesaid, the eighty-seven dollars and fifty cents, interest and bonus for Mitchell’s advancement, leaving a balance of $3,235.78 now due from said Mitchell to said Stanwood; and we, therefore, determine and award, and this is our final determination and award in the premises, that said Stanwood shall recover of said Mitchell, three thousand two hundred and thirty-five dollars and seventy-eight cents, as debt, with interest thereon from Dec. 28, 1870, to the rendition of judgment.”</p> <p>The defendant filed the following objections to the acceptance of the report: “ That N. O. Mitchell, Enoch Miller, C. A. and J. D. White, John T. Richards, William F. Richards, I. A. Stanwood,” and Josiali Maxcy, of Gardiner, Benjamin Clark, of Pittston, and James S. Barker, of Lynn, Massachusetts, formed a copartnership on the 22d day of January, A. D. 1870, under the firm name of N. O. Mitchell & Co., for the purpose of carrying on the business of procuring ice in the town of Dresden, on premises leased to said Mitchell and one Charles W. Waitt, by Warren Hathorn, for the term of ten years, said Waitt having assigned his interest in said lease to said Mitchell, and said Mitchell having assigned the same to said company; and the said members of said firm severally signed articles of copartnership of that date, in which it was stipulated that in case any of the persons belonging to said company should fail to advance their proportion of the necessary expenses of carrying on the business, then they should be entitled to the profits of the business, only in proportion to what they had paid.</p> <p>“ The company built houses, and carried on the business as proposed, and assessments were made upon the members according to their several shares. But the said Stanwood failed to pay any portion of the expenses or assessments made upon his share, whereupon a contention arose as to said Stanwood’s rights and interests in the copartnership and its property; he contending that said Mitchell agreed to advance his assessments for him, and had advanced them; said Mitchell contending that such advancements as he had made, were made for his own interests; that Stanwood had ceased to be a member' of said company; that he had forfeited all right to the copartnership property, and that said Stanwood’s interest in the copartnership and its property had become the property of said. Mitchell by reason of his advancementswhile other members of the company contended that if any forfeiture had occurred, it would inure to the benefit of the company.</p> <p>“ Said Mitchell acted as the agent or business manager of said company, received all assessments paid in, made all purchases and all sales, and received the pay from all sales.</p> <p>“ Prior to the submission, said Mitchell had, at different times, apportioned and paid over to members of the company, portions of the profits accrued, according to their several shares, retaining and claiming as bis own tbe share which would have been apportioned to said Stanwood, but for said controversy as to his forfeiture ; but no such division or apportionment of profits had been made by action of the company, nor had said Mitchell ever promised to pay said Stanwood any portion of the money so retained in his hands. The affairs of the company had not been fully settled, and have not been yet; there still being undivided funds in the hands of said Mitchell belonging to the company, aside from funds retained on the said disputed Stanwood share, and there still remains other undivided property belonging to the company, and unadjusted matters.”</p> <p>Wherefore he contends:</p> <p>1. That the claim made by Stanwood and annexed to the submission, that he was one of the copartners of the firm of N. O. Mitchell & Co., was a question between him and the said firm; that . the parties to this submission had no authority to submit that question, and that the referees had no authority under the submission to determine it.</p> <p>2. That the claim made by said Stanwood and annexed to said submission, that he, as a member of said copartnership, was entitled to one-sixteenth of all the property and profits of said company, was a claim against said company, which could not be valid unless he was a member of said copartnership, and therefore the parties to this submission had no authority to submit that question, and the referees had no authority under the submission to determine it.</p> <p>8. That said referees had no authority under said submission to determine what interests and rights the said Stanwood had or has in or unto any of the copartnership property of the said firm of N. O. Mitchell & Co.</p> <p>4. That the referees, in determining that said Stanwood is the owner of one-sixteenth of all the property of the copartnership, undertake to determine the title to real estate which they had no authority under the submission to do.</p> <p>The presiding judge overruled the objections; whereupon the defendant alleged exceptions.</p> <p>Unless tlie controversy submitted is one wliicli may be tlie subject of a personal action between tlie parties, tlie submission was unauthorized.</p> <p>The statute in Massachusetts, providing for the reference of disputes by consent of parties, provides for referring an additional class of cases, namely, such as may be the subject of suits in equity. It. S. Mass. c. 114, § 1.</p> <p>“ The power of arbitrators to make an award upon which a judgment of the court can be rendered, depends wholly on the statute. The jurisdiction of the arbitrators is a special jurisdiction, created entirely by statute, and can be sustained only when the proceedings are within the provisions of the statute.” Henderson v. Adams, 5 Cush. G10.</p> <p>Claims which can be enforced only by proceedings in equity, cannot be subiects of statute submission. Butler v. Mace, 47 Me. 423.</p> <p>Partners can enforce demands against copartners originating on partnership account, only by bill in equity filed for an account. R. S. 1857, c. 77, § 8, clause 6th; Collyer on Partnership, 143-7, 153; Fanning v. Ohadwick, 3 Pick. 423 ; Holyoke v. Mayo, 50 Me. 385.</p> <p>The only exception to this rule is in regard to the recovery of balances due upon a full and final settlement, and balances upon special items admitted correct and payment promised.</p> <p>' Final balances agreed upon, the copartnership having been dissolved, its accounts and liabilities settled and discharged, and where the judgment will be an entire settlement of the partnership transactions, may be recovered by action in form of contract. Fanning v. Chadwich, 3 Pick. 423 ; Haskell v. Adams, 7 Pick. 59; Williams v. Hens'haw, 11 Pick. 79; Ohase v. G-arvin, 19 Me. 211; Holyoke v. Mayo, 50 Me. 385.</p> <p>When partners have separated one partnership transaction from the rest and adjusted it, and thereupon a sum be found due from one to the other, a promise to pay it will be binding, and an action will lie thereupon, although the rest of the affairs remain unadjusted; but “ no promise is implied between partners to pay each other in a partnership transaction,” and “no action lies by either in such a case, unless the transaction has been settled and a promise of payment made.” Holyoke v. Mayo, 50 Maine, 385 ; CHbson v. Moore, 6 N. H. 547; Wright v. Cobleigh, 1 Foster, 339.</p> <p>When this submission was made there had been no final adjustment -of the affairs of the copartnership; no dissolution of the co-partnership, nor any “final balance” found due to any members of it. Nor had the members of the company made any separation of any one partnership transaction or item, and adjusted it and found a balance due to any member. Mitchell had apportioned and paid over to members, at different times, portions of the profits accrued, except Stanwood; but it was upon his own individual responsibility, and subject to revision and change by the company. Practically it was the same as if he had loaned certain amounts of money to some of the members of the company until a final adjustment of the company accounts. He was responsible to the company for every dollar he received of its funds, and not to individual members of it. Suppose he had made advance payment to but one or two of the members and claimed to hold all the remainder as his own; would that have authorized the other individual members to maintain personal actions against him for their shares ? Retaining the funds of the company, and claiming it as his own, could not change the company’s rights nor his liability to it. “No such division or apportionment of profits had been made by action of the company,” and hence, no admission of its correctness, and no adjustment by the company.</p> <p>Mitchell’s action in withholding payments to Stanwood was equally the action of the company, and Stanwood’s claim would be against the company still, and not Mitchell. But the company had not made any such division of profits. Again, Mitchell had never promised to pay any portion of the money in his hands to Stanwood, and as no promise can be implied between partners in a partnership, transaction, Stanwood’s claim at the time of submission could not have been the subject of a personal action. His only remedy was by bill in equity, not against Mitchell, but against the company.</p> <p>He could not have maintained such an action against Mitchell if he and Mitchell had constituted the entire company. How much less the right to do so when he and Mitchell are but two members of a copartnership consisting of ten.</p> <p>All moneys collected by Mitchell in the company operation belonged to the company. He was merely the pocket of the company, so far as holding the money was concerned. The company had a right to control the money, revise his action, and adjust all matters between the company and its individual members and outside persons or parties.</p> <p>Two of the ten members of the copartnership could not refer such a question. Mitchell does not sign the submission as agent of the company, but as an individual. Stanwood claims to be a member of the copartnership, and, “ as such,” to be entitled to one-sixteenth of the “ property and profits of said firm,” and he and another individual member of the firm submit that question to referees. The company cannot be bound by any such action. The submission embraces and the award embraces “ all the property ” as well as profits of the firm, including, of course, the tools, lumber, materials, implements for cutting ice, etc. Mitchell had not appropriated or interfered with it in any manner other than to put it to its appropriate use for the company, as the company’s agent.</p> <p>An award to be valid must make a final disposition of the matters embraced in the submission. Colcord v. Fletcher, 50 Maine, 398; Camochan v. Christie, 11 Wheat. 446; Akely v. Ahely, 16 Yt. 450.</p> <p>A judgment upon this award would not be a bar to a suit in equity, by any member of the company, upon all the matters embraced in this submission. The case shows that other members of the company claimed that if Stanwood had forfeited his interests in the copartnership, the forfeiture inured to the benefit of the company ; and the case further shows that no final settlement of the affairs of the company has been made, no action of the company apportioning dividends, no company indorsement of Mitchell’s apportionment, and no action of the company participating in this submission. The company may be able to show that Stanwood’s assessments were not advanced at all. If it should be determined in a court of equity that Stanwood had forfeited his interest, and that it inured to the benefit of the company, Mitchell would be obliged to pay over to the company, and payment of this award would be no protection to him.</p> <p>It may turn out, upon final settlement of the affairs of the company, that there are outstanding debts unpaid, and that Mitchell’s apportionment was more than the profits really were.</p> <p>A judgment upon this award would not be a final disposition of the matters embraced in the submission. It would not even bar Stanwood himself from sustaining a bill in equity against his co-partners, to adjust all the affairs of the copartnership, and to account to him for his legal interest in all its property and profits.</p> <p>The company held a lease of real estate for ten 'yeai’s. The claim submitted was for one-sixteenth of “ all the property,” and the award determines that Stanwood “ was and is the owner of one-sixteenth of all the property of the copartnership, as fully paid -up.” This embraces the interest in real estate. All the property of the company must include the whole. It does not name personal property any more than it does the real, and there is as much propriety in contending that the term “ all the property of the copartnership ” does not embrace the personal, as there is in contending that it does not embrace the real estate.</p> <p>It is the settled construction of the statute under which this submission was made, that a submission under it cannot authorize a decision upon the title to real estate. McNear v. Bailey, 18 Maine, 251.</p>

<p>ON EXCEPTIONS.</p> <p>Real action to recover possession of about one hundred and fifty acres of land in Madison, together with, the rents and profits.</p> <p>The writ was dated Oct. 29,1869. The declaration alleged that the plaintiff was seized of the land with the appurtenances in his demesne as of fee, and that the defendant disseised him. Plea, general issue.</p> <p>The remaining material facts sufficiently appear in the opinion.</p> <p>cited R. S. c. 90, § 6; AtJcins v. Sawyer, 1 Pick. 851; Washburn v. Cfoodwin, 17 Pick. 187; Smith v. Dow, 51 Maine, 21; Stone v. Bartlett, 46 Maine, 439; Fletcher v. Stone, 3 Pick. 250; Campbell v. Knight,, 24 Maine, 332; White v. Loring, 24 Pick. 319; Jackson v. Ogden, 4 Johns. 140; Jackson v. Scissam, 3 Johns. 499.</p>

<p>Accommodation indorser — when he may me maker.</p> <p>An accommodation indorser of a ‘negotiable promissory note cannot recover of the maker the amount of the note, on the ground of payment thereof by another note, unless it appear that the second note was given under such circumstances as to constitute it a payment by the plaintiff.</p> <p>Thus the plaintiff, at the request and for the accommodation of the defendant, became second indorser of a promissory note made payable to the order of, and signed and indorsed by the defendant. At maturity the note was taken up by one of like tenor, signed and indorsed by one Thompson, and further indorsed by the plaintiff and one Sumner. When the second note matured, it was taken up by a note of like tenor, signed and indorsed by Sumner, and further indorsed by the plaintiff who paid it at maturity. While the second note was outstanding, and before its maturity, the plaintiff sued the defendant, claiming to recover for payment of the'latter’s note, and interest on the money paid; Held, that the action could not be maintained, in the absence of proof, that the second note was given as payment by the plaintiff.</p>

<p>ON EXCEPTIONS.</p> <p>The defendant was charged with committing perjury by an indictment of the following tenor, omitting the simply formal parts:</p> <p>“ The jurors for the State aforesaid, upon their oaths present, tbat David H. Corson, of Athens, in the county of Somerset, and State of Maine, at Norridgewock, in the said county of Somerset, on the twenty-fourth day of September, in the year of our Lord, eighteen hundred and seventy, appeared as a witness in a proceeding in which Timothy Eaton and David H. Corson were parties, then and there being heard before a tribunal of competent jurisdiction, and committed the crime of perjury, by testifying as follows: I (meaning the said David H. Corson), gave the note on which this suit was brought (meaning the suit or proceeding in which the said David H. Corson was then testifying), to Caroline Noyes, for two hundred dollars, on Sunday. I (meaning the said David H. Corson), executed and delivered the note (meaning the note above described), and received said money on Sunday. The note (meaning the note above described), was not dated the day I (meaning the said David H. Corson), executed and delivered it (meaning said note), to Caroline Noyes. There was no person or persons in: the room when I (meaning the said David H. Corson), gave Caroline Noyes the note,I (meaning the said David H. Corson), am testifying concerning excepting myself (meaning the said David H. Corson), Cyrus Corson my son, and Caroline Noyes; which said testimony was material to the issue then and there pending in said 'proceeding, against the peace of said State,” etc.</p> <p>The deféndant having first obtained leave to plead anew, demurred to the indictment, and the demurrer was joined. The presiding judge overruled the demurrer and adjudged the indictment sufficient; whereupon the defendant alleged exceptions.</p> <p>contended that the statute, on which the indictment was based, is in contravention of the common law, and should not be extended by construction.</p> <p>By the common law every material fact which serves to constitute the offense charged should be alleged, with precision and certainty, as to time and place. State v. Thurston, 35 Maine, 205; State v. Baker, 34 Maine, 52 ; State v. Ranson, 39 Maine, 337; State v. Plummer, 50 Maine, 217.</p> <p>“ Alleged to be false ” require that the testimony set out be alleged to be false. It was necessary at common law, and the statute does not do away with the necessity. Arclib. Cr. PI. 570, 571.</p> <p>Every allegation may be true and no crime committed.</p> <p>It is not alleged that any oath was administered. The form requires that there should be “ set out the matter sworn to.”</p> <p>An allegation that the defendant “ willfully and corruptly” swore falsely, R. S. c. 122, § 1; for although the testimony was on oath and false, yet, if not willful and corrupt, perjury was not committed. 1 Hawk. 669, § 2.</p>

<p>Fences — removal of by surveyor — trespass for.</p> <p>An action of trespass cannot ho maintained against a surveyor of highways for removing fences standing within the limits of the location of a highway in his district, when their continuance has been less than forty years next after the location of the highway.</p> <p>It is not essential that the unlawful existence of such fences should he established on indictment and conviction under B. S. c. 18, § 76, prior to such removal.</p>

<p>Writ of error to reverse a decree of tbe court against tbe plaintiff in a libel for divorce a vinculo, wherein the defendant was libel-ant. The writ was dated Nov. 9,1868. The errors assigned were</p> <p>1. “In making a decree in and by which the said Joseph Prescott was ordered and required to pay to the said Rebecca E. Prescott the sum of six hundred dollars instead of alimony; and also in entering up of judgment against the said Joseph for said sum of six hundred dollars in pursuance of said decree, there being no prayer, claim, or demand for alimony, or for a specific sum of money in lieu thereof, set forth or contained in said libel, or in any other proper plaint, process, or proceeding upon which such decree and judgment.could be founded or predicated.</p> <p>2. “ Because the court ordered that said libelant be allowed her taxable costs, under which -order costs were taxed at one hundred and twenty-one dollars and seventy-five cents, for which sum judgment was entered up as' costs, and for which a writ of execution issued.</p> <p>3. “ For that no deduction from the libelant’s costs (as taxed) was made of the several sums, amounting in all to forty-five dollars, paid by said Joseph, under orders of court, on the application of said libelant, as suitable sums to defray her expenses in the prosecution of her said libel.</p> <p>4. “ And for that the court ordered also that execution issue for the amount of such monthly installments, ordered to be paid by said libelee, as have accrued since his commitment to jail, and that in pursuance of said order, judgment was rendered against him, for for the sum of eighty dollars in addition to the sum of six hundred dollai’s allowed in lieu of alimony as aforesaid, and execution for said sums amounting to six hundred and eighty dollars and costs as. aforesaid, was issued and levied upon the real estate of said Joseph in full satisfaction of said execution and all fees that accrued thereon while the said Joseph was imprisoned for the non-payment of said sum of eighty dollars.”</p> <p>The defendant pleaded the general issue.</p> <p>It appeared from the record that the plaintiff in error was, at the April term, 1868, committed to jail by virtue of a warrant of commitment for not complying with the order of court requiring him to pay to the clerk the sum of twenty dollars on the last day of each and every month for the use of the defendant in error, etc.j and was confined in jail until discharged on habeas corpus at the following October term.</p> <p>The concluding prayer of the libel was,—</p> <p>“ Your libelant prays that your honors will further decree that she may have the care and custody of her said children, with suitable provisions for their support; and that pending this, her libel, suitable decrees may be made that the said Joseph furnish a proper sum of money to enable her to prosecute the same, and for her separate support, and for the custody and support of the said children, and that such other orders and decrees may be made as to law and justice shall appertain.”</p> <p>The remaining essential facts as they appear by the record will be found in the opinion. '</p> <p>• R. S. c. 60, § 6, does not contemplate a decree of “reasonable alimony out of his (husband’s) estate, having regard to his ability” or “ instead of alimony a specific sum ” without its being claimed in the libel and due notice given to the husband, that he may be prepared to show what would be reasonable, etc. The statute gives the power on suitable process and notice.</p> <p>By R. S. c. 104, § 11, “when a.demandant recovers judgment in a writ of entry, he may therein recover damages for the rents and profits,” and “ for any destruction and waste.” But “ may ” he do it without declaring for it ? Or if he claim “ rents and profits ” in his writ, may testimony be received to prove “ destruction and waste.”</p> <p>There is no claim in the libel for any alimony or specific sum instead of alimony.</p> <p>Other orders and decrees are prayed for for support, etc., “pending the libel,” under § 5.</p> <p>All the orders “ pending the trial ” had been complied with. All ■matters which the respondent had been summoned to answer to had been fully adjudicated on and judgment rendered. The case was improperly continued thereafter. Judgment had been rendered and should have been recorded as of that term. The defendant was no longer in court by counsel, and himself in prison., The decree was made ex-parte.</p> <p>A claim for alimony would not authorize the court to decree a specific sum instead of alimony. They are entirely different propositions.</p> <p>The closing sentence in the prayer of the libel has reference to decrees incidental to the other decrees prayed for. “ With other due damages ” in a writ of entry would not authorize judgment for rents and profits.</p> <p>The libelant should have filed a petition and had it served upon the libelee at least.</p> <p>Formerly no costs were allowed or taxed in libels for divorce. Hence Pub. Laws of 1858, c. 80, conferred authority to order the husband to pay a suitable sum to the wife, etc., “ for her defense or prosecution.”</p> <p>Husband is not obliged to advance “suitable sum ” for her defense and prosecution to pay her costs and then her costs to be taxed and paid by him again after suit is no longer pending. Otherwise the statute would have provided for a deduction of the money already paid.</p>

<p> Petition for review. Writ of review. Practice. </p> <p>A petition for the review of an action is to Re served and entered as an independent proceeding.</p> <p>If a writ of review be granted, the order is entered under the entry of the petition, and all further proceedings under the petition are ended.</p> <p>No final judgment can be rendered under the petition so long as it is continued. A writ of review cannot be sued out until final judgment on the petition.</p> <p>A writ of review may be sued out at the next term after final judgment on the petition.</p> <p>A writ of review must bo made a new entry, and it cannot be entered, heard, or determined under th’e petition.</p>

On REPORT. Covenant broken. In support of the action, the plaintiff put into the case a deed of warranty, with the usual covenants from-the defendant to the plaintiff, dated Nov. 21,1853, duly acknowledged and recorded, of which the part material to an understanding of this case was as follow's: “ Know all men by these presents.

<p>Mortgage on real estate — action — declarations of benefieiai'y admissible. Estoppel.</p> <p>If tlie only surviving beneficiary named in a mortgage of real estate actively aid. and assist the mortgager in selling and conveying by deed of warranty the mortgaged premises to a third person without mentioning her own claim, and such third person, relying upon the joint representations of the mortgager and such beneficiary, and without suspecting that theie was any incumbrance upon, the premises, thereupon purchased the same for their full value, she is thereby estopped to set up any claim under the mortgage.</p> <p>Nor can such estoppel be avoided by the fact, that the plaintiff of record is prosecuting the suit as the administrator of the estate of the mortgager, who stood in the relation of trustee of the other beneficiary.</p> <p>The declarations of the real party in interest, though his name does not appear as the party of record, are competent evidence against him.</p> <p>Thus, in the trial of a real action, brought for the sole purpose of enforcing a claim for the life-maintenance of the surviving widow of the mortgagee, in the name of the administrator of the mortgager, on a mortgage conditioned for the maintenance of the mortgagee and his wife, her acts and declarations tending to show, that, at the time of the mortgager’s conveyance of the mortgaged premises by deed of warranty to the defendant’s grantor since the death of her husband, she knew the sale was contemplated, and actively aided and assisted in bringing about the sale of the premises at their full value, and urged the mortgager’s grantee to purchase without mentioning her claim, and relying upon the joint representations of the mortgager and the widow, he did purchase without suspecting there was any incumbrance upon the premises. Held. that the facts constitute a defense, and that they are admissible in evidence.</p>

Bill in equity brought by Nathaniel Bryant, jr., as administrator of the estate of Nathaniel Bryant, deceased, against Christopher Erskine, Joseph Erskine, Jason M. Carleton, and Jane Linscott, to redeem certain land therein described, from a mortgage given by Charles H. Linscott to Ephraim Linscott and his wife Jane, for life maintenance, April 22, 1861.

On exceptions. Assumpsit on a promissory note, commenced by trustee process, in which William Yannah was summoned as trustee of the principal defendant. The trustee disclosed that on the fourth day of October, 1869, and before the service of the writ in this action on him, he delivered to the said Winslow, to whom he was indebted on account, a writing, of which the following is a copy: “Nobleboeo, Oct. 4, 1869. Nathaniel O. Winslow Cr.

<p>Promissory note — construction of — evidence in action on.</p> <p>The liability of the defendant, as the maker of a negotiable promissory note, must be determined by the instrument alone.</p> <p>X note of the tenor: “Portland, Deo. 20,1869. Pour months after date, I promise to pay to the order of Sturdivant & Co., two hundred and twenty-five dollars. Value received. John T. Hull, Treas. St. Paul’s Parish,” binds Hull, personally; and it cannot be shown, by parol, that the intention of both parties, at the .time of giving the note, was that the parish and not Hull should be bound.</p> <p>Neither K. S. c. 1, § i, clause xxr., nor c. 73, § 15 is applicable to such note.</p>

<p>Witness — husband and wife — competency of.</p> <p>Under the provisions of K. S. o. 82, in the trial of an action hy a married Woman against the administrator of the estate of a deceased person, the husband of the plaintiff cannot testify to facts happening before the death of the defendant’s intestate, unless the latter had testified in the case, or the administrator offers his own testimony.</p>

Ox exceptions to the ruling of Goddard, J., of the superior court for the county of Cumberland. Assumpsit on account annexed, for $51 for services rendered the defendants’ intestate, at his special request, by the plaintiff as a clairvoyant.

On exceptions to the rulings of Cfoddard, J., of the superior court for this county. Case for damages occasioned by an alleged defect in a plank sidewalk or platform outside the defendants’ station in Portland.

<p>■ ON exceptions to tbc rulings of Gcoddard, J., of the superior court for this county.</p> <p>On an indictment alleging: “ That the Grand Trunk Railway-Company of Canada, a corporation established by law, and whose office and place of business is in Portland, in the county of Cumberland, on the first day of September, in the year of our Lord one thousand eight hundred and sixty-nine, at Falmouth, in said county of Cumberland, and on divers other days and times between that day and the day of finding this indictment, at said Falmouth, in a certain common highway leading from Falmouth post-office to the foreside road, so called, then and there used by all the good people of the said State, with their horses, teams, and carriages, to go and return, pass and repass at their free will and pleasure freely, without obstruction or hindrance, unlawfully did put and place locomotive engines and a great number of empty cars, to wit, five empty cars and railroad trains, and did then and there, and on said divers other days and times there, unlawfully and injuriously permit and suffer the said locomotive engines, empty cars, and railroad trains, respectively to be and remain in, upon, and across. thej common highway aforesaid, for a long space of time, to wit, for the space of one hour on each of said days and times, whereby the common highway, aforesaid, then and on said divers other days and times there, for and during all the times aforesaid on each of the said days, respectively, was unreasonably and negligently obstructed, straitened, and closed, so that the good people of the said State could not then, and on said divers other days and times there, go and return, pass and repass, drive with their horses, teams, and carriages in, through, and along said highway, as they ought and were accustomed so to do, to the great damage and common nuisance of all the citizens of said State, going, returning, passing, and repassing, in, through, along, and upon said highway, against the peace of said State, and contrary to the form of the statute in such case made and provided,” the jury returned a verdict of guilty.</p> <p>Thereupon the defendants moved in arrest of judgment, because</p> <p>1. There is no offense alleged in the indictment.</p> <p>2. The indictment is bad in law, and no valid judgment or sentence can be rendered thereon.</p> <p>8. An indictment will not lie for the acts and doings therein set forth.</p> <p>4. The remedy, if any, is by an action of debt to recover the penalty prescribed by E. S. c. 51, § 40.</p> <p>The presiding judge overruled the motion, and the defendants alleged exceptions.</p>

<p>Bankruptcy — discharge in — when not avoided.</p> <p>In order to avoid a defendant’s discharge under the United States bankrupt Act of 1867, on the ground that the schedule verified by oath did not contain a statement of his debt to the plaintiff, and that the latter had no notice of the proceedings in bankruptcy, and did not prove his claim, it must appear that the omission was fraudulent and the affidavit willfully false.</p>

ON EXCEPTIONS. Assumpsit on account annexed, the last five items of which were for milk, delivered in quantities varying from sixty-two to one hundred and ten gallons per month, in the months of May, June, July, and August, 1864. The action was tried at the October term, 1866, and again at the October term, 1867, at both of which trials the plaintiff’s intestate was a witness and testified in his own behalf.

On exceptions to the ruling of Goddard, J., of the superior court for this county, in charging the trustee for forty-seven dollars and eighty cents. The action was assumpsit on account annexed. The action was tried by the judge, without the intervention of the jury, and he rendered judgment for tlie plaintiff for the sum of sixty-eight dollars and twelve cents, debt or damage.

ON REPORT. ' Writ of entry dated Oct. 4, 1869. Plea, general issue.

<p>ON EXCEPTIONS to the rulings of Gfoddard, J., of the superior court for this county.</p> <p>Assumpsit on an account annexed, wherein are charged various .items, from Nov. 80, 1868, to Jan. 1, 1871, comprising bills for rent, furniture, carpets, gas, and fuel, and credited various subscriptions and contributions from several of tbe members of tbe association, and sums of money for use of tbe ball by several persons other than members, leaving a balance due of $300.30.</p> <p>It appeared that tbe plaintiff and six others were appointed “a committee on opening the new ball; ” that at the time of tbe appointment of tbe committee there was no furniture, carpets, settees, or heating apparatus in the ball; that the committee purchased them and submitted the report to the officers of the association, who constituted tbe “ government;” that these purchases were kept separate from tbe treasurer’s account; that the purchases were made on tbe credit of tbe association; if the association did not pay, tbe committee expected to, and became responsible ; tbe directors made tbe arrangement that tbe committee were to own the property purchased, until paid for by tbe association; and the bills, in some instances, were made to the association.</p> <p>Tbe plaintiff testified, substantially, that the account, as sued, was presented to the whole committee, who examined it and said it was satisfactory; that it was afterwards submitted to the association at a meeting thereof; that be did not know as be was one of tbe committee, as such, but that bis connection with the committee, so far as the bill in suit was concerned, was as treasurer of the committee.</p> <p>That tbe association was unable to furnish the hall, and it was agreed that contributions and advances should be made, and that the money so raised should be held first to pay the rent, and next any expenses that might grow out of furnishing the hall; that until the association was able to pay for it, all the property upon which advances were made should be held and owned by tbe parties who made the advances; and that the plaintiff made all the disbursements stated in tbe bill.</p> <p>On cross-examination, he testified that he sold the settees after they were taken from the hall.</p> <p>Tbe following extracts from the constitution of the association were put in.</p> <p>“ ÁRT. 6. The officers of this association shall consist of a president, vice-president, corresponding secretary, recording secretary, treasurer, and a committee of four, all of whom shall constitute a board of government for the association, and shall be chosen by ballot, if it is requested by any member. Vacancies in the government shall be filled at the next business meeting of the association.</p> <p>“ART. 10. The treasurer shall have charge of the property and funds of the association, and shall have charge of the collection of subscriptions, and of any other debts due the corporation, and shall pay such bills of the association as may be ordered by the government, and shall make a full report at the annual meetings, and exhibit his accounts when required by the government of the association.</p> <p>“ He shall give a bond with sureties when required by the government.”</p> <p>At a regular meeting of the association held Jan. 9, 1870, “the corresponding secretary, treasurer, and hall committee made their reports, which reports were accepted.”</p>

On exceptions to the ruling of Lane, J., of the superior' court for this county, at the February term, 1872.

ON exceptions to the ruling of Goddard, J., of the superior court for this .county. Covenant broken to recover the amount which was paid by the plaintiff to discharge the taxes for 1868, assessed on land conveyed by the defendant to the plaintiff by her deed of warranty, dated April 7, 1868.

ON EXCEPTIONS to tbe ruling of Groddard, J., of tbe superior court for this county. Covenant. BROKEN on tbe covenants of a lease of tbe “Portland House,” from tbe defendant to tbe plaintiff, for tbe term of three years from May 6, 1865.

On report. Writ of entry wherein the plaintiffs demand one-sixth part of the premises referred to in the writ. .The premises were owned by one Isaiah Smith at the time of his death, intestate, April 14, 1846. The defendant is one of six children left by said Isaiah, and was in possession of the premises, claiming title to so much as he had not disclaimed.

<p>Marine policy — construction of. Latent ambiguity.</p> <p>■Where tlie property insured in a policy of marine insurance was described as “Sixty-five hundred and fifty dollars on charter, twenty-six hundred and fifty dollars on primage, and also fifteen hundred dollars on property on board ship ' Charles S. Pennell,’ at and from New York to San Francisco,” Held, that the phrase “at and from New York to San Francisco,” is not descriptive of any por_ tion of the property insured, but simply of the voyage during which the risk was to continue.</p> <p>And where it appeared that the vessel was sailing under two charters, either of which answered the call in the policy, parol evidence is admissible to prove which of the charters was insured.</p>

ON EXCEPTIONS to the ruling of Gfoddard, J., of tlie superior court for this county. Assumpsit on account annexed to the writ, tlie items were as follows : 1860, Oct. To one white mare, sold and delivered to him, to be paid for in wood, in 1861, §85.00 1867, Nov. 20. To 4 feet of wood, 4.00 $89.00 CONTRA, CR. 1862.

<p>ON REPORT.</p> <p>Assumpsit on an award made and published Aug. 9,1870. The second count in the writ was as follows :</p> <p>“ Also, for that the defendants, on the second day of July, A. d. 1870, being indebted to the plaintiff in a large sum for labor and materials furnished for erecting the dwelling-house upon the real estate aforesaid, and a controversy having arisen between him and the defendants, it was then and there agreed to appoint, and they did appoint Charles H. Stuart and Daniel A. Booker to determine for tjjein the amount due the plaintiff from the defendants, and they mutually promised each other to stand to and abide by the award of the said Stuart and Booker thereon; and the said Stuart and Booker afterwards, to wit, on the ninth day of August, a. d. 1870, heard the plaintiff and defendants, and adjudged upon the premises, and awarded that the defendants should pay the plaintiff three. thousand and sixty dollars and eight cents on demand, and notified the plaintiff and defendants thereof, and thereafterwards, on the same day, the plaintiff demanded payment of said sum, which the defendants then and there refused ;• and the plaintiff avers that said sum was due for labor and materials furnished for erecting said dwelling-house, by virtue of a contract with the owners thereof, whereby and by force of the statute in such case made and provided, the plaintiff has a lien upon the interest of the defendants in said real estate, on the first day of June last past, and he brings this action to enforce the same.”</p> <p>It appeared that on Aug. 15,1870, the referees went to the office of the counsel for the plaintiff and showed them a paper, dated Aug. 9, 1870, containing a detailed statement of an account, in which the mutual claims of the parties litigant were set down with the referees’ finding on each, with a net balance of $8060.08, and asked if it. was in the usual form of an award. Upon being answered in the negative, they requested the counsel to give them a form. But upon the counsel’s suggesting that the parties would probably settle without a formal award when they knew the result, they signed the paper, handed it, with a duplicate thereof, enclosed in an envelope addressed to the defendant, to the counsel, who agreed to and did hand the envelope to the defendant. The arbitrators at the same time stated that the paper showed the result to which they had arrived; but if the parties desired a formal award, they would make one, and did so a few days - afterwards, as follows:</p> <p>“ Pursuant to a submission made to us, dated the second day of July, A. D. 1870, to which reference is made by Francis -O. J. Bodge, of Westbrook, of the first part, and John T. Hull, of Portland, in behalf of himself and the Hull heirs, of the second jpart, we have met the said, parties, heard their allegations and proofs in the premises', and this is our final determination and award in the premises, that there is due from the said John T. Hull, in behalf of himself and the Hull heirs, the sum of three thousand and sixty dollars and eight cents, to be paid to said Francis O. J. -Bodge by said Hull and the Hull heirs, on demand, -which is in full of matters submitted to us by the parties, a memorandum of which, of even date herewith, we have already given to said parties.</p> <p>PORTLAND, Aug. 9, 1870.”</p> <p>The remaining facts appear in the opinion.</p>

<p>ON REPORT.</p> <p>AssuMpsxt upon a promissory note of the following tenor:</p> <p>“11,500. Damariscotta, Jan. 5, 1866.</p> <p>For value received, we jointly and severally promise to pay Edward S. Tobey, or order, fifteen hundred dollars in three months from date. Signed, Joseph Day,</p> <p>E. W. StetsoN.”</p> <p>The action was brought in the name of the plaintiff for the benefit of Tobey.</p> <p>The facts sufficiently appear in the opinion.</p>

<p>ON EXCEPTIONS</p> <p>Case by Ammon Platt and Peter O. Strong, surviving partners of the lato firm of George W. Ryley & Co., the said George W. Ryley being deceased.'</p> <p>“ For that the said plaintiffs aver that they the said plaintiffs, and the said George W. Ryley, who was then alive, but since deceased, and whom the plaintiffs have survived, had prior to the twenty-third day of January, in the year of our Lord one thousand eight hundred and sixty-nine,.sold and delivered to one James F. Hirst, of said Webster, at his request, divers goods, wares, and merchandise, of them the said plaintiffs, and the said George W. Ryley since deceased as aforesaid, in payment of which the said Hirst drew two certain orders of the following purport, viz., one as follows: “ Boston, Feb. 9, 1865. Sixty days after date, pay to the order of myself, nineteen hundred and forty and dollars, value received, and charge the same to account of James F. Hirst. To Messrs. H. J. Libby & Co., Portland, Maine.” The other as follows: “Boston, Feb. 9, 1865. Four months after date, pay to the order of myself, nine thousand eight hundred eighty-six and xVo' dollars, value received, and charge the same to the account of James F. Hirst. To Messrs. II. J. Libby & Co., Portland, Maine.” And thereafterwards, on the same day, said Hirst indorsed and delivered said orders to the said plaintiffs and said Ryley. And,the plaintiffs aver that on the said twenty-third day of January, a. d. 1869, said sums of money, as mentioned in said orders, were due the said plaintiffs and unpaid, in all amounting to the sum of eleven thousand eight hundred and twenty-seven dollars and fifty-five cents, with interest on said sums, respectively, from April 13, a. n. 1865, and June 12, a. d. 1865, from the said James F. Hirst, which said sums and interest still remain justly due and unpaid to the said plaintiff surviving partners as aforesaid.</p> <p>“ And the said plaintiffs aver that the said Retiah D. Jones, contriving to wrong and defraud the creditors of the said Hirst, and especially the said plaintiff surviving partners as aforesaid, did, on or about the twenty-third day of January, a. d. 1869, at said Webster, to wit, at said Auburn, knowingly aid and assist said James F. Hirst, in a fraudulent sale and transfer to him, the said Retiah D. Jones, of certain property then belonging to said James E. Hirst, to secure the same from the creditors of said James F. Hirst, and prevent its attachment or seizure on execution by receiving from said James F. Hirst, a sale, conveyance, and transfer of said property so belonging to said James F. Hirst, to wit, two pairs of steers,' four years old, one white cow, one red cow, with star in face, one red and white cow, one red cow with. white face, one dark red cow, two Jreifers, two years old, one yearling, one red three year old heifer, with star in face, ten-sheep, all of which property was of great value, to wit, the sum of five hundred eight-five dollars.</p> <p>“ And the plaintiffs further aver, that on or about the sixteenth day of February, a. d. 1869, at said Webster, to wit, at said Auburn, the said Retiah D. Jones contriving to wrong and defraud the creditors of said Hirst, and especially the said plaintiff surviving partners as aforesaid, did knowingly aid and assist said James F. Hirst in a fraudulent sale and transfer to him, the said Retiah D. Jones, of certain property then belonging to said James F. Hirst, to secure the same from the creditors of said Hirst, and prevent its attachment or seizure on execution, by receiving from said James F. Hirst'and Ruth E. Hirst, wife of said James F. Hirst, a certain sale, conveyance, and transfer to said property so belonging to said James F. Hirst, being a certain piece or parcel of land situated in said Webster, and the same then and now occupied by said James F. Hirst, and the same described in a certain deed from said James F. Hirst and Ruth E. Hirst, to said Retiah D. Jones, dated Feb. 16, 1869, and recorded in the Androscoggin Registry of Deeds, book 57, p. 228, all of which real estate was of great value, to wit, the sum of twenty-five hundred dollars.</p> <p>“ And the plaintiffs further aver? that the said Retiah D. Jones, contriving to wrong and defraud the creditors of said James F. Hirst, and especially the said plaintiff surviving partners as aforesaid, did, on or about the second day of August, a. d. 1809, at said Webster, to wit, at said Auburn, knowingly aid and assist said James F. Hirst in a fraudulent sale and transfer to him, the said Jones, of certain property then belonging to said James F. Hirst, to secure the same from the creditors of said James F. Hirst, and prevent its attachment or seizure on execution, by receiving from said Ruth E. Hirst, a sale, conveyance, and transfer of said property so belonging to said James F. Hirst, to wit, a certain brick mill building, situated in said Webster, on land bonded to said Ruth E. Hirst, by John Lombard, Thomas J. Foss, and S. L. Hill, Feb. 15, a. d. 1869, which said bond is recorded in the Androscoggin Registry of Deeds, book 56, p. 343, all of which property was of great value, to wit, the sum of six thousand dollars.</p> <p>“And the plaintiffs further aver, that the said Retiah D. Jones, contriving to wrong and defraud the creditors of the said James F. Hirst, and especially the said plaintiff surviving partners as aforesaid, did, on or about the fourteenth day of April, A. d. 1869, at said Webster, to wit, at said Auburn, knowingly aid and assist said J ames F. Hirst in a fraudulent sale and transfer to him, the said Retiah D. Jones, of certain property then belonging to said James F. Hirst, to secure the same from the creditors of said James F. Hirst, and prevent its attachment or seizure on execution, by receiving from one Stetson L. Hill, a sale conveyance, and transfer of certain real estate then belonging to said James F. Hirst, to wit, a certain parcel of real estate situated in said Webster, and known as the Tobias Weymouth farm, all of which property was of great value, to wit, the sum of two thousand dollars.</p> <p>“ And the plaintiffs aver, that the said several parcels of property, so fraudulently conveyed, sold, and transferred were in the whole of great value, to wit, the sum of eleven thousand and eighty-five dollars; and the plaintiffs further aver, that the said defendant thereupon fraudulently took said property into his possession and control, claiming the same by virtue of said several fraudulent sales, conveyances, and transfers, whereby the said plaintiffs were prevented from attaching said several parcels of property or seizing the same on executioh.</p> <p>“ So that the said defendant defrauded the said plaintiffs contrary to the form of the statute in such cases made and provided ; whereby and by force of the said statute an action hath accrued to the said plaintiffs to have and recover of the said defendants double the amount of the said property so fraudulently sold, conveyed, and transferred, not exceeding double the amount of said plaintiffs’ claim.”</p> <p>To the foregoing declaration the defendant filed a special demurrer showing the following causes:</p> <p>1. Because the declaration does not set out affirmatively that said James E. Hirst was indebted to the plaintiffs upon the bills of exchange therein referred to or otherwise, at the dates of the alleged fraudulent sales, and transfers therein mentioned.</p> <p>2. Because said declaration does not allege that said bills of exchange, or either of them, were presented to the drawers for acceptance or payment, or that said bills of exchange or either of them were duly presented for non-acceptance or non-payment, or that the same were not paid by the drawees, or that, if not paid by the drawers, any proper steps were taken by the holders thereof to have the said James E. Hirst charged either as drawer or indorser thereof.</p> <p>3. Because said declaration contains but one count, and the said count embraces allegations or averments of several distinct, independent causes of action, to wit, the first, second, third, and fourth alleged fraudulent sales, conveyances, and transfers therein named, each being entirely separate from, and disconnected with either of the other alleged causes of action, and said declaration is, therefore, bad for duplicity.</p> <p>4. Because the second alleged fraudulent sale, conveyance, and transfer named in said declaration is not alleged to have been from James F. Hirst alone, but from Jamos F. Hirst and Rutli E. Hirst, jointly, to said Jones, and because it is not alleged that James F. Hirst and Ruth E. Hirst were jointly indebted to the plaintiffs at the date thereof; and that said Jones knowingly aided and assisted them in said sale, conveyance, and transfer of their joint property, to secure it from their joint creditors and prevent its attachment and seizure on the execution of their joint creditors.</p> <p>5. Because the third and fourth alleged fraudulent sales, conveyances, and transfers named in said declaration, are not of property of which said Jamos F. Hirst is alleged to have had the legal title at the dates of said sales, conveyances, and transfers; but, on the contrary are of property of which other parties than James F.» Hirst are alleged to have had the legal title at the dates of said conveyances, so that the same could not then, at the time of said last-named sales, conveyances, and transfers have been attached, seized, or taken on the execution of the creditors of J ames F. Hirst, as his property.</p> <p>6. Because said declaration is otherwise bad in substance and bad in form.</p> <p>The demurrer after joinder was overruled, pro forma, and the declaration adjudged good ; whereupon the defendant alleged exceptions.</p> <p>I. The declaration does not set out in proper form that the plaintiffs were the creditors of Hirst. No promise on the part of Hirst to the plaintiffs is alleged. The ground of the indebtedness is not set out. It is not enough to aver that a sum of money is due and unpaid. The particular transaction or promise out of which the indebtedness arose should bo set out in order that the court may determine whether the facts thus alleged would establish the relation of creditor and debtor.</p> <p>If the action were assumpsit, and the declaration simply averred that certain, sums of money were due from the debtor to the plaintiffs, without stating for what, it would be clearly bad. Brown v. Webber, 6 Cush. 560.</p> <p>Although it is alleged that the money, “ as mentioned in said orders,” was due the plaintiffs, and unpaid from Hirst, on Jan. 23, 1869, and the first alleged fraudulent sale and transfer is laid “ on or about ” that day, the declaration does not aver that the plaintiffs were creditors of Hirst at the time of the first alleged fraudulent transfer, or either of them, and is therein defective. Herrick v. Osborne, 39 Maine, 231.</p> <p>II. It does not appear that the bills of exchange drawn by Hirst on Libby, payable to his own order and indorsed and delivered by Hirst to the plaintiffs, were ever presented for acceptance or payment ; whether accepted or paid; whether ever protested for nonacceptance on non-payment; or whether Hirst was notified that they looked to him for payment. No cause of action by plaintiffs against Hirst is set out, and hence no allegation that the plaintiffs were his creditors. Bushion v. Aspinwall, Douglass, 680; Chit, on Bills, 373.</p> <p>The cause of action, plaintiffs against Hirst, should be as distinctly set out in this declaration as if they were prosecuting a suit directly against him thereon. Herrick v. Osborne, ubi sup.; Thacher v. Jones, 31 Maine, 528.</p> <p>III. The declaration contains but one count, but embraces allegations of four several independent causes of action against Jones. If the several grounds were separately set out, the defendant might plead to some and demur to others. Now such right is taken away. Such defects are bad on special demurrer. Gould’s PI. c. 9, § 16. If the several alleged fraudulent conveyances would each, independent of the others, be sufficient to sustain the action, the declaration must be bad for duplicity. Gould’s PI. c. 4, § 99; Patterson v. Wilkinson, 55 Maine, 42.</p> <p>IY. Hirst could have made no fraudulent sale and conveyance as against his creditors, of any land the legal title to which did not vest in him at the time. In Spaulding v. Fisher, 57 Maine, 411, the declaration traced the debtor’s interest in tlie house conveyed to Fisher. In case at bar there is nothing to show that Hirst over invested anything in the Weymouth farm or brick mill, or that it could be attached or seized on execution as Hirst’s. Quimby v. Carter, 20 Maine, 219; Herrick v. Osborne, ubi sup.; Skowhegan Bank v. Cutler, 49 Maine, 315.</p> <p>A debtor who joins in. a conveyance of land the legal title of which is vested in himself and another, cannot be charged with committing a fraud upon liis creditors. But if otherwise, nothing beyond the debtor’s interest could be held.</p> <p>V. Involves same law substantially. Neither the third or fourth parcels of property, alleged as fraudulent conveyances, is alleged to bo the property of which Hirst was ever seized or possessed, or which was ever liable to be attached and taken on execution at the suit of his creditor for satisfaction of his debts. Herrick v. Osborne, supra.</p> <p>All objections to matters of substance are open whether assigned or not. Gould’s PI. c. 9, part I. § 20.</p> <p>VI. Surviving partners cannot m'eddle with partnership property until they have filed the bond prescribed in R. S. e. 69, §§ 1 and 2.</p> <p>Their power to sue in their capacity of surviving partners extends to nothing but assets of the firm. 1 Pars, on Cont. 173, note b.</p> <p>Their qualification must affirmatively appear in the declaration. Blower v. O' Conner, 7 La. 194; Connelly v. Cheevers, 16 Curry (La.), 30.</p> <p>When one describes himself as executor or administrator, he virtually says he has filed his bond. He would not be executor or administrator without this. Not so of a plaintiff who describes himself as surviving partner. The objection is open under demurrer ; abatement to the disability of the plaintiffs not being necessary until they first allege and show themselves persons of ability to sue.</p> <p>Similar statute in Louisiana. La. Code, Art. 1131 and 1132; Crozier v. Hodge, 3 La. 358.</p> <p>The indebtedness to the firm was to them jointly. And the injury must be to the plaintiffs jointly, with the deceased partner’s heirs or representatives, and they all must join in the action. 1 Chit, on PL 54 and 572.</p> <p>The right of action does not accrue to surviving partners, as such, when the indebtedness is alleged to be to the firm, and the injury complained of is alleged to have been done after the dissolution to the surviving partners. Surviving partners’ right of recovery is limited to assets of the firm. -Here the tort occurred after the dissolution, and which, if done at all, must have been done jointly to all the joint owners of the alleged debt.</p>

ON REPORT. Trespass for breaking and entering the plaintiff’s close and breaking and opening their meeting-house, in Leeds, on Aug. 14, 1870.

<p>Pleading. Description of land in writ of entry — what is sufficient.</p> <p>The declaration in a writ of entry should describe the demanded premises clearly, and without reference to papers or records, dehors the writ; but such a reference will not vitiate the declaration if the description is complete without it.</p> <p>A description of the demanded premises in a writ of entry is sufficient if it gives the number of the lot., when the lot has been actually run out and numbered, the number of the lot in such case becoming, for the purpose of identification its name.</p> <p>“ So much of the Hunnewell farm, so called,” in a town and county named, “ as is contained in lots two, three, and four, according to the division of said farm made by commissioners of partition, appointed by the supreme judicial court, on the petition of B. P. Hunnewell; said lots are adjoining each other, and containing in all eighty acres, more or less; said lot two being the same set off by said commissioners to Jonas Hunnewell; said lot three the same set off to Eliza Willey; and said lot four the same set off to Bethana Bruce,” is a sufficient description of the premises demanded in a writ of entry.</p>

<p>ON EXCEPTIONS.</p> <p>Complaint eor elowage.</p>

ON EXCEPTIONS. Assumpsit to recover for service rendered by Joseph Thompson, since deceased, the plaintiff’s intestate. The writ is dated May 14, 1867, and the suit, was instituted by the present plaintiff as administrator of the estate of Joseph Thompson. At tlie trial the plaintiff did not offer to testify, and neither was he called or sworn as a witness.

On exceptions. Appeal from the decision of the county commissioners of this county, whereby they refused to locate a highway in Newfield, Limerick, and Waterbofough, on the petition of the appellants. The appeal was entered at January term, 1871, of this court, in the absence of the counsel for the town of Limerick, respondent, and at the suggestion of petitioners’ counsel, who was one of the petitioners, a committee was 'appointed.

On REPORT. Writ of entry to recover a parcel of land in Shapleigb, in this county. The plaintiff put in, as evidence of his'title, a deed of warranty of the demanded premises, from Greenleaf Webber, of Sliapleigh, to him, not dated, but acknowledged September 16th, and recorded September 18, 1865. The defendant put in, as evidence of his title, copy of a writ in his favor against said Webber, bearing date, Sept. 15,1865, returnable to the January term, 1866, of this court.

<p> Waiver. </p> <p>Upon oross-examination of the defendant it appeared, that he, being in attendance upon the court as a juror as well as a party, conversed with several of his associates in relation to his case, prior to its coming on for trial. The plaintiff (lid not then choose to insist upon the objection, but went on and closed the trial, when a verdict was found against him. Held, that the objection was waived.</p>

<p>On exceptions.</p> <p>Action.</p> <p>“ In a plea of the case for that the defendant company, before the 14th day of March, 1866, had entered into a contract with one George H. Pierce and one Albert Blaisdell for the construction of the railway of said company, to be paid for in cash, to the said Pierce and Blaisdell, at certain rates therein stipulated, under which -contract payments were then due and in arrears from said company to said contractors, and the said company was not able to pay the same, and the said contractors were not bound to proceed in said work, and had suspended the same, and, therefore, the said contractors, on the 11th day of March, 1866, proposed to said company, to continue their work under said contract, upon that part of the line, extending from the city of Bangor to the town of Winn, in this State, notwithstanding such arrears, upon the condition, amongst other things, that a major part of the stock of said company should be put into the hands of said contractors and their associates, as security for the money which they should advance in doing said continued work, and afterwards, on the 21st day of the same month, the company accepted said proposition, in the terms thereof, upon the condition that stockholders of the company should make such disposition of the stock as was required by the terms of said proposition, and such as would place in the hands of the said contractors and their associates a majority of the stock of the company. And the plaintiff avers that he was then a stockholder in said company, owning four hundred and sixty-six shares of the paid-up capital stock of the same, and for the purpose 'of carrying into effect the said proposition of the contractors and the acceptance thereof, under the conditions aforesaid, the said company then and there requested the plaintiff and other stockholders, severally, to transfer to the said contractors such number of shares belonging to them respectively, as should be a majority of all the paid up capital stock of the company, and voted that any further issue of stock for the payment of land damages, or other needful expenses of the company or for the completion of the line to the town of Winn, should he authorized only on the written consent of the said contractors. And, therefore, the plaintiff, in pursuance of said request, and confiding in the vote so passed, on the day following transferred to the said Pierce and Blaisdell 373 shares in the said capital stock; and other stockholders at the same time, in pursuance of said request, and confiding in said vote, also transferred other and further shares in said capital stock, to said Pierce and Blaisdell in such number, to wit, 574 shares, as made and consti-tutecl a majority of all the paid-up capital stock of said company, and tbe said transfers were received by tbe said Pierce and Blais-dell in fulfillment of the terms of their proposition aforesaid, — and the said company had the benefit of the same for the purpose of carrying the said proposition and the acceptance thereof into effect. And the said Pierce and Blaisdell, at the request of said company, and for the purpose of effecting the object of said transfer and securing the rights of the plaintiff, and said other stockholders in the stock so transferred, then ánd there gave to the plaintiff and said other stockholders severally, accountable receipts for the same, engaging and assuring that when they should have completed the said railway from Bangor to Winn aforesaid in pursuance of their contract aforesaid, and the same should have been paid for according to the terms of said contract, as modified by the proposition hereinbefore recited, and the acceptance thereof, they would transfer and return the said stock to the plaintiff and said other stockholders, or to their order, and not otherwise. And the plaintiff avers that by all the several acts, requests, and votes of the said company herein recited and set forth as aforesaid, and the compliance of the plaintiff with such request to transfer his stock as aforesaid, the said company was bound and obliged in good faith to observe the trust so created in respect to the plaintiff’s stock and his rights therein, and was bound to do no act which should impair the value of the plaintiff’s intei-est in the stock so transferred by him, or the other stock belonging to him, and was bound and obliged not to make any further issue of stock of the company by the transferring for the completion of the line to Winn, without the written consent of-the said contractors. And the plaintiff furthér avers that no such consent was ever given by said contractors at any time after said 21st day of March, 1866, before the time of the acts and votes of said company hereinafter recited. Yet the said company, unmindful of its said obligations, and contriving and intending to injure and defraud the plaintiff and to violate the trust which the said company had entered into and undertaken in respect to the plaintiff’s said shares, and contriving and intending to destroy tlie value of tlie same and all tlie plaintiff’s rights therein ; afterwards, on the 23d day of December, 1867, at Bangor aforesaid, by the action and vote of the directors of said company, voted to issue other and further stock of said company, and other and further certificates of shares in the same, on paid-up stock, to a large amount, namely, twelve hundred and fifty shares of the par value of #125,000, to a certain person or persons who claimed to have performed work under said construction contract, in the construction of a small part of said railway from Bangor to Winn, and to issue tlie same in payment for such work claimed to be of that value, and afterwards, within one month thereafter, actually issued and delivered such further certificates of stock to the person or persons aforesaid, although the said contractors did not give their consent thereto, and although the said work from Bangor to Winn was not completed, but remained to a large extent unfinished and incomplete, and although no provision whatever was made in said construction contract or otherwise for payment for any such work in stock of the company.</p> <p>“ Whereby and by reason of this said wrongful and fraudulent acts, contrivances, and intents of said company, the plaintiff has been greatly damnified, and his interests in the stock so placed by him in trust as aforesaid, and the value thereof has been greatly impaired, diminished, and destroyed. And by the same wrongful, fraudulent acts, contrivances, and intents, the value of plaintiff’s other stock in said company has also been greatly impaired, diminished, and destroyed. To the damage of said plaintiff (as he says), the sum of forty thousand dollars.”</p> <p>PLT5A.</p> <p>“And the said defendant corporation comes, etc., when, etc., and prays judgment if the plaintiff, his action aforesaid thereof against it, ought to have or maintain because it says that after the making of the contract for the construction of its railroad as alleged in the declaration, and after the making and acceptance of the proposition recited in the declaration as therein alleged on the twenty-first day of March, a’, n. 1866, and before the issue of capital stock in the declaration complained of, to wit, on the eighth day of May, a. d. 1866, the said -Pierce and Blaisdell made an agreement in writing between themselves of the first part, and John Ii. Wiggins, Philander ,C. Brink, J. Edgar Thompson, John H. Bradley, Benj. E. Smith, and Thomas W. Pierce, and such other persons as should be selected by said Wiggins, Brink, Thompson, Bradley, Smith, and Thomas W. Pierce, and should sign said agreement, provided that the whole number should not exceed ten, eqtially interested, of the'second part; by which agreement the said Pierce and Blais-dell for a valuable consideration therein expressed, did sell, assign, and transfer so much of said ‘contract for the construction of the defendants’ railroad to the parties of the second part as gave and secured to each of them, the following interests, to wit, to said Wiggins, Pierce, Blaisdell, Brink, Thompson, Bradley, Smith, and Thomas W. Pierce, each one-tenth, and to such persons as should thereafter be selected and sign said agreement as aforesaid, two-tenths ; and thereafterwards, to wit, on the tenth day of said May, William G. Case and William Dennison were selected as aforesaid, and did sign said agreement, and thereby became parties thereto, and owners of one-tenth each of said contract, and the signing of said agreement by said Case and Dennison, was on the same day ratified and confirmed by all the other'parties thereto; and it was further stipulated in said agreement that the assignment of said contract should include and carry with it the said supplemental contract of March 21, 1866, for the control of said company; and it was further provided, by said agreement, that said parties of the first and second part should together constitute a board of control, and should manage all the affairs of said company, and might act by committee, agent, or proxies, and might compose or select the board of directors of the defendant corporation; that afterwards, to wit, on the first day- of J-iine, a. d. 1866, with the consent of all the parties to said agreement, said Thomas W. Pierce sold and assigned all his interest in said contracts and agreement, to said Pierce and Blaisdell; that afterwards, to wit, on the eighth day of October, A. n. 1867, with the consent of all the parties to said agreement, said Blaisdell sold and assigned to said Case all his interests in said contracts and agreements, that by virtue of said agreements, transfers, and assignments, the interest in all the contracts in plaintiff’s declaration mentioned before the issuing of said stock, to wit, on the ninth day of October, a. d. 1867, the right of control of the construction of said railroad under said contracts in the declaration mentioned, became and was vested in the said Pierce, Wiggins, Brink, Thompson, Dennison, Smith, Bradley, and Case, as a board of control; that the defendant, from and after the said eighth day of October, till the date of the plaintiff’s writ, recognized the said board of control as the contractors under the contracts in the declaration mentioned, and treated and dealt with them as such, thereby consenting to and ratifying the transfers and assignments as aforesaid; that by virtue of the premises the right under the contracts in the declaration mentioned became, long prior to the issue of said stock, vested in said Wiggins, Pierce, Brink, Case, Thompson, Bradley, Smith, and Dennison, in the same manner and to the same extent as it was originally vested in said Pierce and Blaisdell; that the said board of control, to wit, said Wiggins, Pierce, Brink, Case, Thompson, Bradley, Smith, and Dennison, before the issue of the stock complained of in the declaration, to wit, on the twentieth day of December, A. d. 1867, did consent in ■writing to said issue of said stock by said defendants; and that it is ready to. verify.</p> <p>“Wherefore it prays judgment, if said plaintilf his action aforesaid against it ought to have or maintain, and for his costs.”</p> <p>To this plea the plaintiff filed a general demurrer, which was joined.</p> <p>The presiding jndge, fro forma, sustained the demurrer and adjudged the declaration bad; afid the plaintiff alleged exceptions.</p>

<p>Contract — interest of parties to, incompatible.</p> <p>The interests of the parties to a contract, whether of purchase or sale, or for ■work or labor, are adverse and inconsistent with each other.</p> <p>If a director of a railroad corporation enter into a contract for the construction of the road of his corporation, he cannot then, nor subsequently, personally derive any benefit from such contract.</p>

ON EXCEPTIONS, Submission of all claims between the parties, under R. S. c. 108.

Facts agreed. Assumpsit for money bad and received, to recover twenty dollars and seventeen cents. The writ was dated Nov. 17, 1870. The plaintiff is a resident of Bangor, in this county, and senior member of the firm of D. R. Stoekwell & Co., lumber dealers, having their counting-room and only place of business in Bangor.

On report. . Debt, brought under Public Laws of 1869, c. 86, §§ 3 and 4, to recover the penalty provided in § 1, of the same chapter.

On REPORT. Action founded on R. S. c. 24, § 24, for tlie recovery of supplies alleged to have been furnished by the plaintiff’s to a pauper whose legal settlement was in the town of Lee. On the bill of particulars were found, among others, the following items: 1869.

ON REPORT. Trespass for taking a colt from the plaintiff. The defendant justified as collector of taxes of the town of Surry. It appeared that the defendant was collector of Surry for the years 1865, 1866, and 1867 ; that he seized the colt for the plaintiff’s taxes for those years; that his proceedings in taking, advertising, and selling the distress were regular.

ON EXCEPTIONS. Ihdictment against the defendant, a married woman, for being a common-seller of intoxicating liquors.

ON REPORT. INDICTMENT against Parmenas Dyer and Benjamin F. Morrill, under R. S. c. 124, § 8, for maliciously and without lawful justification using an instrument by forcing, thrusting, and inserting it into the body and womb of tlie wife of Morrill, with intent thereby to procure her miscarriage, she being pregnant with child. There was another count alleging that the use of the instrument was not necessary for the preservation of the life of the woman.

ON REPORT. Assuhpsit, — ’One count for money bad and received, and one for $2;712.91 laid out and expended for the use of the defendant. The writ was dated Nov. 1, 1870. Butler & Co., Bartlett’s indorsees, paid the note to the holder, aind on March 17, 1863, commenced an action against Bartlett as them indorser on the note. The action was entered at the April term, 1863.

ON REPORT. Assumpsit upon a town order payable to A. F. Gerrish or bearer, for $50, dated March 22, 1865, given to refund to the payee his subscription, voluntarily made without expectation of repayment, to aid in procuring soldiers for the war of the rebellion. It appeared that the money was not borrowed, nor obtained by any officer of the town, but was subscribed and paid to aid the town in procuring men to fill the quota of troops under the call of the president.

<p>Vessel — mortgage of, where to he recorded.</p> <p>Before a vessel is registered or enrolled, a mortgage of it will "be valid if recorded agreeably to tbe laws of tbe State.</p> <p>After it is registered or enrolled, a mortgage of it will not be valid against any person oilier than tbe mortgager, his heirs and devisees, and persons having actual notice thereof, unless recorded as required by the laws of tbe United States.</p>

ON' REPORT. CovenaNt broken. Writ dated March 11, 1870. On the 12th December, a. d. 1865, the defendant, by his deed of warranty with the usual covenants, conveyed to the plaintiff and one John Lamb certain real estate therein described, situate in the town of Argyle, in this county.

Bill IN equity brought under R. S. c. 77, § 5, clause yii, to determine the construction of the last will and testament of Rufus Dwinel, late of Bangor, deceased. The bill is in the name of all the persons who can be interested in the provisions of the will or in the estate of the deceased, as executors, trustees, legatees, annuitants, and other beneficiaries, or as next of ldn, except the respondent, who is named as legatee therein.

ON REPORT. Trespass guare clausum for breaking and. entering the plaintiff’s close in Dixmont, and cutting and carrying away the grass, and carrying away the apples growing in said close. Plea, general issue.' . . On September 17, 1844, Nathaniel Randall conveyed by deed of quit claim to John J. Bickford, the west half of his farm described by metes and bounds.

<p>Statute — construction of. Trespass — against several defendants when one dies.</p> <p>By Pub. Laws of 1870, c. 128, when either of several plaintiffs or defendants in an action that survives, dies, the action may be further prosecuted or defended by the survivors and the executor or administrator of such deceased party jointly.</p> <p>By Pub. Laws of 1870, c. 109, actions pending at the time of the passage or repeal of an act, shall not be affected thereby.</p> <p>Hence, an action of trespass against several defendants brought to recover treble damages for the destruction of personal property, pending -when c. 128 took effect, cannot be prosecuted against the representative of one of the deceased defendants jointly with the survivors.</p> <p>But in such case, the plaintiff may, under B. S. c. 82 § 11, discontinue against the survivors, and proceed against the representative of the deceased defendant, or proceed against any or all of the survivors upon discontinuing against the representative party, and such of the survivors as the plaintiff may elect not to proceed against, subject to the provision relating to cost.</p>

<p>Trespass guare clausum — what title will enable plaintiff to sustain. Tax title.</p> <p>As the law in this State was in 1835, in order to sustain a title under the tax-deed from a county treasurer, it must affirmatively axipear that the provisions of law preparatory to and authorizing a sale of land for taxes had heeu strictly complied with.</p> <p>To sustain an action of trespass guare clausum against one having no right to he upon the premises, the plaintiff put in evidence a deed of quitclaim to himself from one who never had either title or possession. The deed was never recorded until after the trespass complained of, and it did not appear that the j)laintiff ever had possession under it. Held, insufficient.</p> <p>In Nov., 1845, neither the common law nor the statutes of this State authorized a married woman to take a conveyance of real estate,and give hack a mortgage to secure the purchase-money ; hut such a mortgage and deed were void.</p> <p>A certified copy of a certificate of the entry hy the mortgagee of such a mortgage, on June 4, 1847, for the purpose of foreclosing it, in the absence of any evidence that such possession was continued, would not he sufficient evidence of possession to enable him to maintain trespass for acts happening twenty years thereafter.</p>

ON REPORT. Trespass for entering and cutting and carrying away grass from a certain close described in the writ as follows: “ Bounded on the north by land of Edward McGown ; on the east by land of the defendant; on the south by land of the defendant; on the west by county road leading to Bangor; and being the same premises set off on execution to one V. D. Pinkham, from land of James Mc-Gown.” The entering and cutting were admitted.

On Repokt. Trespass quare clausum, and de bonis, .and waste, set forth in four counts, alleging the trespass on Dec. 2, 1867, and divers other succeeding days. Writ dated Aug. 13, 1868. Plea, general issue and brief statement. 1.

<p>Contract — consideration — mutuality. Statute — construction of.</p> <p>In. the trial of an action of assumpsit, on an account annexed, the defendant offered in evidence an unsealed, written agreement, signed by the plaintiffs and five other creditors of the defendant, therein Stipulating to “take fifty per cent of the amount due us in full, for account against ” him; and oral evidence that the defendant, prior to the commencement of this suit,presen ted to the plaintiffs the draft of a third person, of an amount equal to fifty per per cent of the account in suit, and claimed a receipt in full; but that the plaintiffs refused to accept the draft and give the receipt; Held, (1) That the evidence disclosed no consideration for or a mutuality in the written agreement; and (2) That the defense was not within K. S. c. 82, § 38.</p>

ON FACTS AGREED. AssuMRSiT on the following writing, signed by the defendant. “ Boston, Oct. 14, 1860. Messrs. Reed, Cutler & Co. Please let the bearer, Mr. W. P. Mansfield, buy merchandise to the amount of two or three hundred dollars, on six months, and I will see that you have your pay.” The writ was dated Sept. 25, 1861. Plea, general issue.

ON EXCEPTIONS. Bill in equity by the plaintiffs, as heirs at law of Shepard Cary, late of Houlton, in this county, deceased, to redeem a mortgage of certain lands dated Nov. 22, 1854, and given by Shepard Cary to the defendant. The case was given to C. P. Stetson, Esq., master, who, after hearing the parties, made his report to the court at the February term, 1871.

ON EXCEPTIONS. CompeaiNT under R. S. of 1857, c. 17, § 1 (R. S. c. 17, § 5), for erecting and continuing a certain fence upon “ a certain public highway and traveled road ” (or, as it is expressed in the second count, a “ certain street ”) in Cranberry Isles, in this county, whereby it was obstructed and incumbered, to tlie common nuisance of all tlie citizens of this State passing tliereon. The complaint came up by appeal from tlie police court of Ells-worth.

<p>Chattel mortgage with sealed writing on hack — construction of. Unstamped instrument — when not invalid.</p> <p>In January, 1869, McNeill and Swett gave the plaintiff tlieir note secured hy a mortgage of all the stock in trade, in the store occupied by the mortgagers on Point street, in Calais/ “ also, any and all additions that may, from time to time, be made to said stock by” the mortgagers. In May, 1869, the unsold original stock, together with additions theretofore made and remaining unsold, was removed to another store by the mortgagers, who executed under their hands and seals on the back of the mortgage a writing duly recorded, therein agreeing that the “ mortgage, with this indorsement thereon, shall cover the portion of said stock removed, the same as though it had remained in the former store, and that it shall hold and cover any and all additions that have been or may be made to the same, as though the stock had remained and been put into the former store.” In trespass hy the mortgagee, against an officer for attaching the goods in July, 1869, as the property of the mortgagers, Held, that the mortgage, with the indorsement thereon, gave to the plaintiff a title to the stock in the second store at the time of the indorsement.</p> <p>To authorize the court to declare an unstamped recorded indorsement on a chattel mortgage to he “ invalid and of no effect,” it must affirmatively appear that the omission of the stamp was the result of an attempt to evade the statute.</p>

ON REPORT. Assumpsit on a written agreement on tbe part of the defendants as executors of the last will and testament of Rufus Dwinel, late deceased.

<p>Intoxicating liquors — seizure of without a warrant — form of complaint. Evidence.</p> <p>Where an officer on the 30th of April, in accordance with R. SC c. 27, § 3i, seized intoxicating liquors without a warrant, and kept them until May 2, following, and then made a complaint therein alleging that, on the 30th April, the liquors were unlawfully deposited and kept, etc. IMd, that the complaint was for a past offense which was consummated on the 30th of April and was rightly described; and that the complaint should not allege that the liquors were still kept and deposited, etc.</p> <p>At the trial of the respondent on such complaint, it is competent to ask the officer who made it, on what day he made tho seizure, notwithstanding the constable had returned on the warrant that ho made the seizure on the 2d of May.</p>

<p>ON REPORT.</p> <p>Trespass, quake clausum.</p>

<p>Petition for certiorari to quash proceedings of the county commissioners of this county in laying out and establishing a highway in the town of Montieello.</p> <p>The case is sufficiently stated in the opinion.</p>

ON FACTS AGREED. RepleviN of two horses, two stage-harnesses, and a covered two-liorse wagon. Writ dated July 30, 1870. The defendant, being a deputy-sheriff, attached the property on a writ dated May 10, 1870, in favor of one Corthell against Edward L. Philbrick, and justified the taking upon the ground that the horses, harnesses, and wagon were,, at the time of the attachment, liable to be attached as the property of Philbrick, and pleaded accordingly.

ON REPORT. Debt on a probate bond given by Henry A. Arey, executor of tho last will and testament of James Arey, as principal, and the defendants as sureties. The principal died before the suit was. brought. The action was brought in the, name of Joseph W. Knowlton, Judge of Probate, and now in the name of Asa Thur-low, his successor. The case came before the foil court (vol. 66 Maine, 228) on facts agreed, which were also made a part of' this case.

<p>ON EXCEPTIONS.</p> <p>Assumpsit on account annexed, for money bad and received and money paid out for defendant’s use.</p> <p>The account was items of casli beginning January 15, 1864, and ending April 29 following. In tlie specification in tbe writ, under the count for money had and received, the plaintiffs claim “ to prove and recover of said defendant the sum of sixteen thousand dollars, that amount of money delivered him on the 15th of January, a. k. 1864, and since according to account annexed.”</p> <p>The plaintiffs offered to amend by adding :</p> <p>“ Also, for that the said defendant having, from time to time, on and since the first day of January, 1863, to the 15th day of March, 1869, acting in the capacity of agent for the inhabitants of Parkman, as aforesaid, to hire and procure for them soldiers to fill and make up the several quotas of the said town, under the several calls of the President of the United States, to suppress the late rebellion, received into his hands the money and property, orders and scrip of the said inhabitants in their corporate capacity to a large amount, to wit, to the amount of thirty thousand dollars, with which to hire and procure soldiers for the purpose aforesaid. The said defendant then and there promised the plaintiffs, that he would faithfully, diligently, and properly discharge said duty, and expend the funds aforesaid, or so much thereof as might be necessary for the purpose aforesaid, under the laws and regulations of the United States and of the State of Maine, and under the several votes of the town of Parkman in relation thereto, and return the balance thereof, if any, to the said inhabitants, — yet regardless of his said several promises and undertakings, as aforesaid,</p> <p>“ The plaintiffs aver that said defendant has appropriated to his own use large sums of said money, to wit, the sum of five thousand dollars, without the order and direction of the plaintiffs, and without authority of law, and against such authority and direction.</p> <p>“ And plaintiffs further aver that said defendant has misappropriated other large sums of money and property aforesaid, to wit, the sum of three thousand dollars, without the order and direction of said plaintiffs, and against said orders and directions, and against sucli authority.</p> <p>“And plaintiffs further aver that said defendant, during said times, paid out, without authority of plaintiffs, and without authority of law, .other large sums of said money and property, to wit, the sum of three thousand dollars, to parties not entitled to the same by any vote of said town or by authority of law; whereby and in consideration thereof the defendant becomes liable, and promised the plaintiffs to pay them the aforesaid sums on demand.”</p> <p>The plaintiffs offered to prove that the defendant from time to time, since the first day of Jauuary, a. d. 1863, up to the 16th day of March, a. d. 1869, acting for the plaintiff town, to hire and procure for them soldiers to fill and make up the several quotas of the said town, under the several calls of the President of the United States to suppress the late rebellion, received into his hands the money orders and scrip and property, all being the property of said' plaintiff town, to a large amount, to wit, to the amount of thirty thousand dollars, with which to hire and procure soldiers for the purpose aforesaid. And that the said defendant, in consideration thereof, impliedly promised the plaintiffs that he would faithfully and diligently and properly discharge his duty in relation thereto, and expend the funds aforesaid, or so much thereof as might be necessary for the purposes aforesaid, under the laws and regulations of the United States and of the State of Maine, and under the several votes of the plaintiff town in relation thereto, — and would return the balance thereof, if any, to the plaintiffs, upon demand.</p> <p>That said defendant, having received the funds as aforesaid, appropriated to his own use large sums of said money and ftuids, to wit, the sum of five thousand dollars, without the authority of the law, and without the consent of said inhabitants, a*id against their consent, and against their recorded votes and in violation of the same.</p> <p>That defendant, during said time, misappropriated other large sums of said money and property, to wit, the sum of three thousand dollars, without the order and direction of said plaintiffs, and against such order and direction and without the authority of law, and against the authority of law.</p> <p>That during said times, the defendant, without the authority of plaintiffs and without authority of law, paid out other large sums of said money and property, to parties not entitled thereto by any vote of said town, or by law, and against law.</p> <p>That E. F. Harvey, town agent of said plaintiff town, duly authorized by the inhabitants of plaintiff town in their corporate capacity,</p> <p>1. As town agent as aforesaid, and as auditor;</p> <p>2. By any votes of the town, — copies of which either party may annex;</p> <p>3. By the authority of the selectmen, and by the acts of the town;</p> <p>4. By bringing this suit;</p> <p>5. By subsequent vote of ratification of the bringing of the suit since the date of the writ, on the 1st day of July, 1870, and before the date of this writ made due demand on the said defendant to pay over to him, as agent aforesaid, all said money, property, and balance in his hands and belonging to said town, growing out of the transactions aforesaid. And made the further demand that he,' at the same time, should account to him as agent as aforesaid, for misappropriations and unauthorized payments as aforesaid, and that defendant refused to account or pay over any sum whatever.</p> <p>It was admitted that defendant was one of the selectmen of said town, from March, a. d. 1859, to March, a. d. 1869, and was chairman of the board of selectmen during all that time.</p> <p>The presiding judge declined to allow the amendment, on the ground that it contained a now cause of action, and was riot legally allowable, and excluded the offered evidence ; whereupon the plaintiffs alleged exceptions.</p> <p>Under the liberal rules adopted by the courts, guided by the liberal statutes requiring only that the person and case may be understood, the amendment is legal.</p> <p>It is for no new cause of action, but only a more formal way of setting out the same claim. Brewer v. Bast Machias, 27 Maine, 489; Selden v. Beale, 3 Greenl. 178; Ball v. Claflin, 5 Pick. 303 ; Jenney y. Bierce, 4 Pick. 385; Benobscot Boom Corp. v. Baker, 16 Maine, 439; Young v. Garland, 18 Maine, 409; Bussell v. Small, 30 Maine, 30; Knapp v. Ciarle, 30 Maine, 244.</p> <p>Every one of the three counts in the writ, as well as the specification in the writ annexed to the counts, claims $16,000, while, al though the amendment alleges that defendant, in the course of the business of hiring soldiers, received $30,000, yet it charges him with only $11,000 in the aggregate, and really only $8,000 as the total of his liability, $5,000 of which he appropriated to his own use, and $3,000 he paid ¡¡¿way in an unauthorized manner. This lacks $5,000 or $8,000, of being equal to the sum named in each count of plaintiffs’ writ'. So instead of enlarging plaintiffs’ claim, the amendment reálly would limit and curtail' it. The third count in the writ is for $16,000, without any specification or limitation.</p> <p>The special count proposed, only covers a claim of $8,000, while the several counts in the writ each cover twice that sum, and the items in the account annexed amount to some $3,000 more than the $8,000, while the count itself covers $16,000. This count is for the same cause of action. Is there any difficulty in “understanding the person and case ? ”</p> <p>A declaration so defective, that it would exhibit no sufficient cause of action, may be amended without introducing any new cause of action. Bullen v. Butchinson, 25 Maine, 249.</p> <p>A declaration, upon an agreement to insure, may be amended so as to declare upon a policy of insurance. Boring v. Broctor, 26 Maine, 18.</p> <p>When a count in a writ names any sum, items not to exceed that sum may be supplied. Butler v. Millett, 47 Maine, 492.</p> <p>This amendment is clearly within the discretion of the court. Brewer v. Bast Machias, 27 Maine, 489. This court has repeatedly declared, that amendments may be allowed at the discretion of the court, .when the cause of action can be perceived and understood, although the declaration is defectively and inartificially drawn. State v. Burnham, 44 Maine, 278 ; Simpson v. Norton, 45 Maine, 381; Page v. Banforth, 53 Maine, 493.</p> <p>Courts are liberal in allowing amendments when the person and case can be rightly understood. Solon v. Perry, 54 Maine, 498 ; Harvey v. Outts, 51 Maine, 604.</p> <p>In a case like this, where there can be no possible doubt, or misunderstanding of the parties, as to wliat plaintiifs claim to recover, _ and after so much expense as lias already been incurred, why should not the court exercise their discretion in favor of the amendments, if they think them necessary, rather than to drive the parties out of court to commence anew to litigate the same matters, which would, in a new suit, be no better understood than they now are ? “ Interest Republics ut sit finis litium</p>

<p>ON REPORT.</p> <p>Debt on a bond, dated Sept. 22,1868, wherein Hiram C. Brewster, as- principal, and the defendants, as sureties, “ are holden and stand firmly bound and obliged unto Hanson Andrews, deputy-sheriff of the ■ county of Knox, in the full and just sum of five thousand dollars to be paid unto Clara C. Packard, her heirs or assigns, to which payment,” etc.</p> <p>The condition of the obligation is,</p> <p>■ “ That whereas the above-bounden Hiram C. Brewster has been arrested at the suit of Clara C. Packard, in the county of Knox, on a plea of the case by the said Clara C. Packard, commenced to be board and tried before the supreme judicial court to be holden at Rockland, in and for the county of Knox, on the second Tuesday of Marcli, 1869, as by the original writ or process bearing date the eighteenth day of September (reference thereunto being had), more fully appears. If, therefore, the above-bounden Hiram C. Brewster shall appear and answer unto said writ or process, and shall abide, do, and perform the judgment of the said court, or the judgment of any other court before whom the said process shall, in due course of law, be finally determined, and shall not depart without license, then the above-written obligation to be void; otherwise to remain in full force and virtue.”</p> <p>It appeared that on Sept. 18, 1868, the plaintiff sued, out a special writ against Brewster, founded upon an alleged contract of marriage. An affidavit required by R. S. c. 118, § 2, authorizing the arrest of a debtor about to leave the State, was made and properly certified upon the writ on which also the plaintiff’s attorney indorsed the order to the sheriff, “Mr. Laughton, arrest the defendant forthwith.” On the next day the officer, having the writ for service, made the return:</p> <p>“ By virtue of this writ, I arrested the body of the within-named, Hiram C. Brewster, who rendered to me the bond which is herewith returned,” etc. The bond mentioned in the return was the one in suit.</p> <p>Judgment was recovered on the original action of Packard v. Brewster, at September term, 1869, and execution issued thereon, Oct. 16,1869, on which an officer made return, Jan. 16, 1870, of diligent search for the body of Brewster, inability to find him and a demand on the sheriff who made the arrest, and his refusal.</p> <p>Plea, non est factum.</p> <p>The action was reported to full court with a stipulation, that, if the action was not maintainable, the plaintiff to be nonsuit.</p> <p>This is a good bond to the plaintiff. 2 Pars, on Cont. (1st Ed.) 24. Such a construction as will make it valid and not void will be given if possible. Qlezen v. Hood, 2 Met. 494. If it be construed as a bond to the sheriff, it is void. Gonant v. Sheldon, 4 Gray, 300; Smith v. Adams, 12 Met. 564.'</p> <p>If construed to be a bond to the plaintiff, it is good at common law. B.'oxie y. Weston, 19 Maine, 322; Athens v.Wdre, 39 Maine, 345; 'Morse v. jKodsdon, 5 Mass. 314; Freeman v. Fa-vis, 7 Mass. 200; Arnold v. Allen, 8 Mass. 147; Glap v. Gofran, 7 Mass. 98; Gall v. Foster, 49 Maine, 452.</p> <p>It was voluntarily entered into for the benefit of the principal, for his relaxation from lawful arrest. Accepted by the obligee, who is now entitled to judgment. Winthrop v. FoeJcendorf,. 3 Maine, 156-164. Burroughs v. Lowder, 8 Mass. 373, 381; GlarTc v. Met-calf, 38 Maine, 125, 126 ; Koward v. Brown, 21 Maine, 388.</p> <p>The promise is directly to the plaintiff. Privity of contract. The defendants acknowledge the indebtedness of $5,000, to be “paid to the plaintiff,” “to which payment” they “bind” themselves and representatives.</p> <p>• B may maintain an action on á promise to A to pay money to B. Felton v. Ficherson, 10 Mass. 290; Gabot v. KasJdns, 3 Pick. 92.</p> <p>Hanson Andrews’ name ivas put in the bond by mistake. Gle-zen v. Food, supra. If not, it is void. The presumption is in favor of sustaining the bond.</p> <p>His name may be struck out as surplusage, and then a good bond be left. 2 Pars, on Cont. 26 and 27.</p> <p>Clara C. Packard is the obligee.</p> <p>1. The bond does not run to the sheriff, and is, therefore, void as a statute bond. R. S. c. 85, § 1; Smith v. Adams, 12 Met. 564; Gonant v. Sheldon, 4 Cray, 300; R. S. of Mass., c. 91, § 1. The' insertion of the name of the plaintiff, as the person to whom the penalty is to be paid, is a clerical error, and does not affect the bond. Glezen v. Hood, 2 Met. 490; 2 Pars, on Cont. 26; Shep. Touch. 368.</p> <p>2. Debt cannot be maintained upon a bail-bond. Grane v. Keat-ing, 13 Pick. 339; Niles v. Brake, 17 Pick. 516; Glezen v. Rood, 2 Met. 494; Kale v. Buss, 1 Greenl. 336. • .</p> <p>3. Tlie statute duties of the officer holding the execution, not haying been performed, the action must fail. B,. S. c. 85, §§ 6, 8j 9 ; Kidder v. Parlin, 7 Greenl. 81; Holmes v. Chadbourne, 4 Maine, 13.</p> <p>4. The bond is void at common law. The rule is, if the obligee has authority to take the bond, it is good at common law, although the condition varies from the requirements of the statute. Purple y. Purple, 5 Pick. 226. The following cases exhibit the application of this principle; Clap v. Qofran, 7 Mass. 78; Freeman y. Pavis, 7 Mass. 200 ; Burroughs y. Powder, 8 Mass. 373 ; Morse y. Hodsdon, 5 Mass. 314 ; Winthrop v. Bockendorf, 3 Greenl. 156; Kavanagh y. Saunders, 8 Greenl. 430; Huntress v. Wheeler, 16 Maine, 290; Wallace y. Carlisle, 20 Maine, 374; Barrows v. Bridge, 21 Maine, 398; Ware v. Jackson, 24 Maine, 166 ; Pales y. Bow, 24 Maine 211; Hovey v. Hamilton, 24 Maine, 251; Clark v. Met-calf, 88 Maine, 122; Baker y. Healey, 5 Greenl. 240; Pease v. Norton, 6 Greenl. 229; Wilson y. CHllis, 15 Maine, 55, The case of Hoxie v. Weston, 19 Maine, 322 cited in Athens v. TPare, 29 Maine, 345, which .conflicts with this rule, cannot be sustained by-authority, or by the principles of the common law. Purple y. Purple, 5 Pick. 226; Baker v. Haley, 5 Greenl. 240; Anderson v. Longden, 1 Wheat. 85; 2 Pars, on Cont. 86, 89; Crane v. Keat-ing, 13 Pick. 339; Niles v. Brake, 17 Pick. 516. But, if sustained, is not analogous to, and cannot control this case, which is sui generis, and governed by the provisions of the Statute 23 Henry VI, c. 10; Bean v. Parker, 17 Mass. 591; Howard v. Brown, 21 Maine, 388; Conant y. Sheldon, 4 Gray, 300; 2 Pars, on Cont. 22, o; Champion v. Noyes, 2 Mass. 481; Kavanagh v. Saunders, 8 Greenl. 429; Long v. Billings, 9 Mass. 481; Crane v. Keating, 13 Pick. 340; Shep. Touch. 373, 374.</p>

ON exceptions to tlie ruling of Goddard, J., of tbe superior court for tbe county of Cumberland.

ON REPORT. Assumpsit for money bad and received. Writ dated May 31, 1870. Tbe plaintiff, during no part oí tbe last twenty years, bas been a resident of Bangor or bad any property taxed there, except in 1867, when, without bis consent, be was in due and legal form, assessed there upon bis shares of stock in tbe First National Bank, a banking institution established under tbe laws of tbe United States, located in Bangor.

<p>On motion to set aside the verdict as being against law and evidence.</p>

<p>ON EXCEPTIONS to the ruling of Goddard, 'J., of the superior court, in and for the county of' Cumberland.</p>

Oh exceptions to tlie ruling of Gfocldard, J., of the superior court for this county.

ON EXCEPTIONS. Assumpsit by trustee process against De Forest Weld, Sylvester H. Kneeland and Wesley R. Andrews, copartners under the firm name of Weld, Kneeland & Andrew, as principal defendants, and A. M. Pulsifer & Clarence C. Frost, a law firm, as trustees.

ON exceptions by the defendant. COMPLAINT for costs. The written notice signed by the attorneys of the original plaintiff (present defendant) and served upon the alleged trustees (present plaintiffs) was dated Jan. 2, 1870, and was of the following' tenor: “ You are hereby notified that the suit Oliver Dow v. E. B. Seavey, and Continental Mills, trustees, returnable at the supreme judicial court, Androscoggin county, January term, 1871, has been withdrawn, and you are,…

<p>ON REPORT.</p> <p>AssüMPSit upon a receipt signed by Joseph Moore, promising to “ pay Joseph Gr. Harmon, deputy-sheriff, on his order, one hundred dollars, on demand, or to re-deliver the goods and chattels following, viz.; one mail-wagon, and two dark-brown horses,” etc.</p> <p>It appeared that the plaintiff, as deputy-sheriff in and for this county, on the 25th Aug'., 1866, having a writ in favor of one lingers, against one Marston, attached the property mentioned in the receipt, standing in front of the post-office at N. Wakefield, on a regular mail-route in charge of Marston, who was the mail-carrier then waiting for the mail. The possession of the team was obtained by Marston after the attachment, by obtaining the receipt of Moore for the plaintiff, having been detained one-half hour.</p> <p>The writ, return thereon of the attachment, judgment, execution and return thereon of demand, etc., vmre put into the case. And the court to render judgment on nonsuit or defaidt.</p>

ON EXCEPTIONS, and Motion to sot aside the verdict as being against law and the-weight of evidence. Assumpsit on a fire policy, the principal parts of which may be found in tbe opinion. The policy bore the name of no one as agent of the company, but was simply signed by the president and countersigned by the secretary.

<p>Beal estate — attachment of— officer's return must shoi« filing attested copy of return.</p> <p>To constitute a valid attachment of real estate under R. S. of 1841, c. 114,’§ 32 (R. S. c. 81, § 56), the officer's return on the -writ must show that the “ attested copy,” required to he filed in the office of the register of deeds, was in fact filed.</p>

ON EXCEPTIONS. We.it of ENTRY. Writ dated Feb. 21, 1870. ’ The demanded premises, consisting of a small dot and dwelling-house thereon, were owned by one Ephraim A. Estes, husband of the defendant, on Jan. 9, 1867, when he mortgaged them to one W. L. Chapman, who, on March 1, 1867, assigned the mortgage to Robert C. Kimball, who, on Jan. 19, 1870, assigned the same to plaintiff.

<p>Intoxicating liquors — promissory note given therefor — what is not a defense to. Burden of proof.</p> <p>It is no defense to an action on a negotiable promissory note, that it was given in whole or in part for intoxicating liquors sold in violation of law, when the action is brought by an indorsee, who is the holder of the note for a valuable consideration, and without notice of the illegality of the contract.</p> <p>If in the trial of an action on a negotiable promissory note, brought by an in-dorsee against tlie maker, the defendant avers that the note was given in whole or in part for intoxicating liquors sold in violation oflaw, the burden of proof is upon him.</p> <p>If the plaintiff replies that he is a holder for a valuable consideration, the burden is Upon him.</p> <p>If the defendant would avail himself of the fact that the plaintiff had notice of the illegality of the consideration when he took it, the defendant must prove it.</p>

Action for the value of a liorse sold by the defendant to the plaintiff. One Nichols, of Hereford, Canada, in the fall of 1865, bought the horse in Canada, where the same was raised, and kept him there until the following October, when he sold him to one Blodg-itt, who duly entered him at U. S. custom-house in January, 1866, and took him to Canaan, in the State of Vermont.

<p>On REPORT.</p> <p>Petition for partition.</p>

<p>Petition for certiorari.</p> <p>The case is sufficiently stated in the opinion,</p>

<p> Distraining beasts. Lien by trespass. JSstray. </p> <p>A person injured in bis lands by neat-cattle, may distrain and impound tlie animals doing the mischief; or he may hayo an action of trespass.</p> <p>The lien given by Ti. S. c. 23, § 4, in the action of trespass is not one that gives the right of possession to the party injured; but it can only be enforced by attachment.</p> <p>A person taking up an estray forfeits all claim for keeping the same unless he commits it to the pound-keeper within ten days.</p> <p>Thus the plaintiff’s bull broke and entered the barn of the defendant, who immediately posted notices thereof in three public places, and advertised the same in a daily paper. Within ten days the plaintiff called and saw the bull, but was doubtful of the bull’s identity. After ten days, the defendant offered to deliver the bull to the plaintiff on proof of property and payment of five dollars for keeping, and indemnity against the claim of any other owner, but the plaintiff did not comply with the conditions. In thirty days the plaintiff demanded the bull and offered the defendant ten dollars for keeping, but the defendant refused to deliver him, whereupon the plaintiff replevied him. Held, that the defendant had no right to possession of the bull, nor any lien upon him which would authorize a judgment in his favor for the expense of keeping or for his damage.</p>

<p> Time policy of insurance. </p> <p>In tlie case of a time policy of marine insurance, it is immaterial where the vessel may he at the inception or termination of the risk, especially if no mention thereof is made in the policy.</p> <p>Thus, where the agent of the insurance company, for receiving and forwarding applications, in his letter to the company requesting an insurance on a vessel “for a year from March 14,1866, at noon,” added, “she was at Gibraltar on that date.” Held, That the representation of her whereabouts was not material.</p>

On report. Assumpsit on a policy issued to the plaintiff, by the defendants, on ship “Ida Lilly,” for one year from January 5, 1866, for the sum of eight thousand dollars, the insurers not to be “ liable for any partial loss on the vessel unless it amount to live per cent, exclusive of all charges and expenses incurred for the purpose of ascertaining and proving the loss.” There was evidence tending to show that the “ Ida Lilly,” then in good condition, tight and strong,…

ON EXCEPTIONS. Assumpsit to recover the sum of five hundred and ninety-four dollars given by the plaintiff to his father, the defendant, Aug. 28, 1864. This money was received by the plaintiff as a bounty for enlistment, with the written consent of his father, into the U. S. military service for three years, he being then a minor seventeen years of age.

<p>On REPORT..</p> <p>Assumpsit on a promissory note, given Feb. 26, 1869, by the defendants to the plaintiff payable in two months, “with interest at the rate of seven and one-half per cent.”</p> <p>The writ contained one count on the note as payable with interest; and the other with a literal description of the note. The defendant pleaded to the former and demurred to the latter which were joined.</p> <p>If the plaintiff could maintain the action for the amount of the note and legal interest on either of the counts, the defendants were to be defaulted for the amount and costs.</p> <p>on the question of severance, cited Met. on Cont. 246, 247; Chamberlain v. Goldsmith, 2 Brownl. 282; Norton v. Syms, Moore, 856; Wood v. Benson, 2 Tyrw. & G. 93.</p> <p>contended, among other things, that the contract is an entirety and not separable, and cited Story on Cont. §§ 21, 22; 1 Pars, on Cont. (2ded.), *30; 1 Bouv. Diet. 269, § 694. After an enforcement of the principal, the interest cannot be collected. Tillotson v. Preston, 3 Johns. 229.</p> <p>A promise to pay a sum certain, and also “ all lines according to rule ; ” or “ also all other sums that may be due ; ” or with “ the current rate of exchange to be added,” cannot be enforced as a note for the sum certain, because it is an entire contract. Arey v. Beam-side, 4 M. & W. 168; Smith v. Nightingale, 2 Stark. 375; Bolton v. Dugdale, 4 B. & A. 619.</p> <p>If the jiromise to pay interest be in the note and not in the count which declares upon it, the note cannot be read in evidence. Gragg v. Erye, 32 Maine, 283. The same must be true as to the statement of the rate.</p> <p>So where there was a promise to pay interest alleged and none proved, the court deemed it a variance. JJappan x. Austin, 1 Mass. 31.</p> <p>A promise to pay interest independently of the rate is inconceivable. If the rate be not expressed, the legal rate is conclusively presumed ; if expressed, it may or not conform to the statute rate ; but in either case it is a part and qualification of the promise to pay interest. So that if any part of the contract be rejected, it must be the whole promise to pay interest, and hence the note would no longer correspond with the declaration.</p> <p>When part of note has been for liquors unlawfully sold, although the amount charged for liquors was well known, definite, and easily ascertainable, the courts have declared the note wholly void. Ladd v. Dillingham, 34 Maine, 316; Nay v. Parker, 55 Maine, 355; Carlton v. Bailey, 7 Foster, 230; Boby v. West, 4 N. II. 285. So of other contracts on similar considerations. Shaw v. Spooner, 9 N. H. 197’; Ciarle v. Richer, 14 N. H. 44; Perkins v. Cummings, .2 Gray, 258. And this independent of any statute making such botes void. Peering v. Chapman, 22 Maine, 488.</p> <p>The plaintiff can recover upon nothing but the contract declared on. And if any part of the contract proved should vary materially from that stated in the pleadings, it will prove fatal; for a contract is indivisible. “ The entire consideration must be stated, and the entire act to be done in virtue of such consideration, together with the time, manner, and circumstances; and with all parts of the proposition, as thus stated, the proof must agree.” 1 Greenl. on Ev. § 66; Robbins v. Otis, 1 Pick. 368; Goulding v. Skinner, 1 Pick. 162; Baylies v. Fettyplace, 7 Mass. 325 ; Bridge v. Austin, 4 Mass. 116; Bouquet v. Headley, 3 Conn. 534; Miles v. Roberts;, 34 N. H. 245; Kidder v. Flagg, 28 Maine, 477; Grant v. Nay-lor, 4 Cranch, 224.</p> <p>“ A note payable at sixty days cannot be given in evidence to support a count which does not state when the note is payable. The variance is fatal. Nor can plaintiff prove this was his attorney’s mistake, and that the note produced is that intended by the declaration.” Sheehy v. Mandeville, 7 Cranch, 208.</p> <p>In the cause at bar there is no “ mistake ” on anybody’s part. The difficulty arises from the plaintiff’s deliberate disregard and defiance of the law; and he cannot complain if he suffer from it.</p> <p>A variance similar to that in Sheehy v. Mandeville was again declared fatal by the United States supreme court in Page v. Bank of Alexandria, 7 Wheat. 35. So in Morris v. Fort, 2 McCord, 397; Coller v. Boykin, Minor, 206.</p> <p>So is a misstatement of date. Carlisle v. Trears, Cowp. 672; Stephens v. Graham, 7 S. & R. 405; Bank v. Allen, 11 Yt. 302; Fallís v. Howarth, Wright, 303.</p> <p>Or even statement of a date when the note has none. Atlantic, c., Co. v. Sanders, 36 N. EL 252.</p> <p>The words “ for value received ” are descriptive and cannot be rejected, nor can note not containing them be read under a decía-ration which contains them. Saxton v. Johnson, 10 Johns. 418; liossiter y. Marsh, 4 Conn. 196.</p> <p>Note was declared upon as payable at the house of B. & Co.; proved that that was a mere memorandum at foot of note. Held a variance. Ezron v. Bussell, 4 Maulé & Selw. 505.</p> <p>If payable at any place, that must be truly stated. Puckett v. King, 2 Ala. 570; Murphee v. State Bank, 4 Pike, 448.</p> <p>That the whole note should have been set out in effect; see Whitaker v. Smith, 4 Pick. 88 ; Stanwood v. Scovil, lb. 422; Hart v. Tyler, 15 Pick. 171; Leach v. Blow, 8 S. & M. 221; Woodstock Bank v. Bowner, 1 Wins. Yt. 482; Boylston v. Sherran, 31 Ala. 538; Shaw v. Nolle, 15 La. Ah. 305.</p> <p>So where a promise ‘‘ to give a note for $24” is alleged, and one proved to give a note for that sum “ payable in plank and a gun,” the variance is fatal. Gowry v. Ward, 25 Yt. 217; Titus v. Ash, 4 Foster, 319.</p> <p>So is the omission of a stipulation for “ interest from date.” Sawyer v. Patterson, 11 Ala. 523; Gragg v. Frye, 32 Maine, 283.</p> <p>Or of the words “ or discount.” Addio v. Vanbuskirk, 4 Zab. (N. J.), 218.</p> <p>It is of no consequence that the proof is of a larger sum or quantity than alleged; it is yet a variance. Foster v. Pennington, 32 Maine, 178; Crawford v. Morrell, 8 Johns. 253.</p> <p>A complaint upon a promissory note is not sufficient unless it contain averments by which Identity of paper filed with that sue.d is made apparent upon the record. Bennett v. Wainwright, 16 Ind. 211.</p> <p>Where an instrument is not truly described in its material parts, it cannot be read in evidence under a special count upon it. Higgins v. Lea, 16 Ill. 495; Cunningham v. Hobart, 7 Gray, 423; Chittenden v. Stevenson, 26 Conn. 442; Scott v. Ham, 9 Barr. (Pa.), 407.</p> <p>And the law of variance is the same even as to contracts not in writing. Leery v. Goodson, 4 D. & E. 687; Bobertson v. Lynch,, 18 Johns. 451; Bending v. Manning, 2 N. H. 289.</p> <p>The general principle, in short, is that the omission or misstatement of any limitation, qualification, or term of the contract, whether it be written or verbal, is fatal. If the full promise be not stated there is a variance. Penny v. Porter, 2 East, 2; Wheelwright v. Moore, 1 Hall, N. Y. Sup. Ct. 20; Snell v. Moses, 1 Johns. 105.; Stone v. Knowlton, 3 Wend. 374 ; Pope v. Barrett, 1 Mason, 123; Silt v. Campbell, 6 Greenl. 109; Symonds v. Carr, 1 Campb. 361; Thomas v. Williams, 10 B. & C. 664; Snow v. Winters, 7 Cowen, 263 ; Close v. Miller, 10 Johns. 90.</p> <p>Suppose two notes, both bearing the date and for the amount mentioned in plaintiff’s first count, and payable to the person, and at the time and place there stated, were produced and were found to differ only in regard to interest; one reading, simply, “ with interest,” and the other having the additional clause, “ at the rate of 7$ per cent; ” which would the court receive as conforming to the declaration ? the former or the latter ? Could it be, then, said that the latter corresponded with the declaration? If not, does the mere fact that the plaintiff has not offered any such note make the one he does produce to correspond with the declaration ?</p> <p>The declaration omits to state the rate of interest upon which the loan was effected and credit given, while it is stated in the note ; was the rate a material portion ?</p> <p>The rate was the inducement for the plaintiff to enter into the contract.</p> <p>• If the contract he illegal, will the court'frame for them one which they did not make, and then adjudge damages for breach of it.</p> <p>Where there is an entire contract, or even a severable one, and the whole contract is set out and sought to be recovered upon, if any part of the contract' be against the law the plaintiff must fail entirely. Lord Lexington v. Clarice, 2 Vent. 223 ; Thomas v. Williams, 10 B. & C. 664, cited ante; Chater v. Beehett, 7 T. R. 201.</p> <p>See Bailey, B., opinion in Wood v. Benson, 2 Tyr. & Gr. 99; 6 Cush. 508-513; Lea v. Barber, 2 Anst. 425, note.</p> <p>The trouble is that in the written, express contract, illegality was stipulated for in, and so pervaded and was interwoven with the whole agreement, that when that is removed the whole is destroyed. Irvine v. Stone, 6 Cush. 512.</p> <p>“ The end accomplished is not the test by which we are to judge of the validity of the contract, but rather the end aimed at by the parties. That this end was a violation of the spirit [and letter] of the law . . . would seem to be too clear to admit of a doubt. . . . By all the authorities, as well as upon sound principle, such a contract cannot be sustained.” Weld v. Lancaster, 56 Maine, 458.</p>

<p>On exceptions.</p>

<p>Corporation — withdrawal of stock therefrom.</p> <p>In 1863', a voluntary association was established, by the name of the “ Lewiston Equitable Co-operative Society ” for the buying and selling to shareholders and others groceries, etc., and its constitution provided that members might “ withdraw their funds by giving ” certain notices, and its by-laws that when amotice to withdraw is given, his “ membership ceases.” In January, 1867, a corporation by the same name and for the same pturpose, was organized under an act of the legislature. In September following, the agent and salesman of the corporation handed to the plaintiff a printed copy of the “ constitution and by-laws of the Lewiston Equitable Co-operative Society, established December-, 1863," informing him it was the constitution and by-laws of the defendant corporation, and thereupon the plaintiff purchased fifty shares of the stock, became a member, attended its meetings, had opportunity at all times to examine its constitution, by-laws, and records, and purchased goods of its agents, and received one dividend. By the by-laws of the corporation, members might, by giving notice, surrender their certificates of stock, and receive therefor its fair and equitable value, to be determined by the managers, — “ in-ovided that the assets shall be in excess of its liabilities, and not otherwise.” The corporation became insolvent in December, 1868, and has continued so. In January, 1869, the pfiaintiff gave notice, as by the constitution' and by-laws of the voluntary association, of his withdrawal of funds and membership, and brought this action to recover back his money. Held, (1) That the defendants were not bound by tberules of the association by estoppel; and (2) That this corporation is subject to E. S. c.46, § 33. <.</p>

ON EXCEPTIONS. Assumpsit for money had and received. The writ was dated Aug. 13, 1870.

<p>Will — construction of — court’s opinion — when a party is entitled to.</p> <p>R. S. o. 77, § 5, authorizing this court, as a court of equity, to determine the construction of wills, secures to the parties in interest the right, in all cases of douht, to have the opinion of the court as to the legal effect of a will, whether any actual controversy in relation thereto has arisen or not.</p> <p>The only item in the testator’s will was of the following tenor: “First and final, I give and bequeath to my beloved wife, ” naming her, “ all the real and personal estate of which I may die seized and possessed, after payment of all my . just debts.” Held, that there being nothing in the will indicating that the testator intended to devise a less estate, his wife, by.virtue of It. S. c. 74, § 1C, took an estate in fee-simple.</p>

<p>Practice. Authority — delegation of.</p> <p>When a report of referees itself presents a question of law, upon the determination of which the result is made to depend, and judgment is to be entered up for one party or the other, according to the decision of the legal point involved, the xxrst rule of court requiring parties, objecting to the acceptance of a report, to file their objections in writing, does not apply.</p> <p>To make a written contract between contractors and the committee on streets binding on the city, it must be signed by at least a majority of the committee; and they cannot give their chairman authority to execute it without this.</p> <p>■Tims, under an order of the common council of the city of Portland, the committee on streets, having advertised for bids for grading a certain street, accepted the plaintiffs’ bid, which was the lowest, and thereupon the chairman of the committee, acting for them and with their consent in behalf of the city, and the plainti£fs,in their own behalf, executed a written contract embodying therein the details of the agreements of the respective parties in relation to the premises. In an action on the contract, Held, that the city was not thereby bound.</p>

ON REPORT. COVENANT BROKEN to recover damages for a breach of a covenant against incumbrances. The defendant executed and delivered his deed of warranty to the plaintiff, Nov. 18, 1865, when one Mary A. Webber was the lawful wife of the defendant, but did not release her right of dower in the premises ‘conveyed by the deed.

ON REPORT. Assumpsit for money bad and received to recover twenty-six ' hundred and eighty-three dollars and sixty-four cents, “being money collected of the plaintiff by the defendants under duress, and paid by him under protest, for taxes illegally assessed or collected during the years 1864-1869.” At the annual meeting of the town in March, 1864, the town “ Voted, to raise the sum of four thousand dollars, and that the same be appropriated for the purpose of making that…

<p>ON REPORT.</p> <p>Wkit OK ENTRY claiming to tlie center of the partition or dividing wall between the plaintiffs’ block and the Cony House, owned by the defendant. The defendant claimed the dividing line to be the south side of the wall, and disclaimed all of the demanded premises, except that portion between the center of the wall and the south side of the same.</p> <p>The plaintiffs, after introducing their title-deeds, with evidence tending to show that the demanded premises are the same as described in their deeds, put in an agreement, award, and receipt of the following tenor respectively, omitting the signatures :</p> <p>“ It is agreed between George Cony on the one part, and James W. Bradbury, jr., in behalf of himself and the other owners of the Bradbury & Smith block on the other part, to submit the claim made by said Cony against said Bradbury and other owners of said Bradbury & Smith block, for pay for building a part of the brick partition wall, the center line of which is the dividing line between said blocks, to the determination of Artemas Libbey, of Augusta, and Walson E. Ilallett, of Augusta, whose decision shall bo final in the case, and each party binds itself to abide thereby.”</p> <p>“ We, the undersigned, referees appointed by the agreement of the parties as above, having given the parties duo notice of the time and place of a hearing, met them at the office of A. Libbey, in Augusta, on the 8th day of November, 1867, and after hearing their proofs and arguments touching the claims submitted to us, and fully considering the same, award and determine, and this is our final award and determination in the premises, that the said Bradbury and others, owners, pay to said Coney the sum of two hundred and twenty-five dollars and nine cents in full for the claim submitted to us.”</p> <p>“ Received of James W. Bradbury, jr., two hundred and twenty-five and nine one-liundredths dollars in full payment of the within award.”</p> <p>There was annexed to the agreement an account comprising the items of the expense of constructing the wall, amounting to $622.78, one-lialf of which the defendant claimed of the plaintiffs.</p> <p>The defendant offered evidence tending to show that the south line of the wall was the true line between the lots; but the presiding judge intimated that the agreement and the action of the parties under it estopped the defendant from showing that the center of the wall was not the true line; and thereupon this case was taken from the jury and reported to the full court.</p> <p>If the defendant was not estopped from showing that the center of the wall was not the true line, the case to stand for trial.</p> <p>On the nature of estoppel. 2 Pars, on Cont. 787, 793 ; Piper v. Gilman, 49 Maine, 149; 1 Greenl. on Ev., § 207 ; Kinney v. Farnsiuorth, 17 Conn. 356; Wallis v. Truesdale, 6 Pick. 455; Freeman v. Ooolce, 21 H. & G. 653; Piper v. Gilman, 49 Maine, 149; Wood v. Pennell, 51 Maine, 52 ; Stanwood v. McLellan, 48 Maine, 275 ; 2 Smith’s Lead. Cas. 531, 532; Hatch v. Kimball, 16 Maine, 146 ; Colby v. Horton, 29 Maine, 412 ; Copeland v. Copeland, 28 Maine, 539; Rangely v. Spring, 28 Maine, 135.</p> <p>It applies to real estate. Brown v. Wheeler, 17 Conn. 345; Lindsey v. Springer, 4 Han. 547; 2 Pars, on Cont. 796 n.</p> <p>The written agreement fixed the division line. It is certain, definite. The parties acted on the agreement. Plaintiffs paid, defendant received the amount awarded.</p> <p>The items of the account, exclude all idea of the defendant’s claim of the whole wall or of land under it. They are a clear recognition of the plaintiffs’ right to the center of the wall.</p> <p>That it was solely the brick' wall that was submitted, and the referees’ award relates to that only. No element of land was in contemplation. By the reference, award, payment, and receipt, the plaintiffs purchased half the brick wall, and the defendant is estopped to deny it. Thus far his acts and admission go and no further. As incident to the wall, the plaintiffs also acquired an irrevocable license for the wall to rest on the defendant’s cellar wall and land, so long as the wall shall stand, and may be protected by injunction. 2 Pars, oil Cont. 796, note q; 1 Story’s Eq. Jur. § 388 ; Miller v. Platt, 5 Duer, 272; JBatchelder y. Sanborn, 4 Foster, 480 ; 77. <7. Co. v. Vincent, 2 Atk. 83.</p> <p>•The recital was not in a deed. Nor was tbe land tlie subject-matter of tbe reference, and could bave bad no influence on tbe plaintiffs. It is but a parol admission, open to explanation on tbe question of title.</p> <p>It is no estoppel, as both parties liad some means of knowing tbe true line.</p> <p>To constitute an estoppel there must be some secret knowledge on tbe part of the defendant, not known to tbe plaintiffs, and not open to them with reasonable diligence, willfully withheld by tbe defendant, so as to amount to a deception and fraud on bis part. Gray v. Bartlett, 20 Pick. 186,193 ; 2 Washb. on Real Prop. 460, 461; Wilton v. Harwood, 23 Maine, 131; Titus v. Morse, 40 Maine, 348, 353, 354, 355 ; Angel y. Martin, 7 Barb. 409.</p> <p>Nor is there any evidence from tbe papers that tbe defendant knew that bis land extended beyond tbe centre of tbe wall. If be understood tbe meaning of tbe language in tbe submission, be supposed tbe center was bis line. If tbe defendant acted under a misapprehension, and has inadvertently and innocently made an admission prejudicial to bis rights, be shall not be estopped thereby. Tolman v. SparhawJc, 5 Met. 475, 476, 477; Brewer v. B. $ W. B. B. Co., 5 Met.. 478, 483 ; 1 Story’s Eq. Jur. §§ 386, 388.</p> <p>But if tbe papers and proceedings constitute an estoppel, tbe plaintiffs are not entitled to judgment, but tbe case must be remitted for trial.</p> <p>For by an estoppel, the legal title does not pass from tbe original owner to tbe party claiming tbe estoppel, but it remains in the former.</p> <p>Tbe legal title is not lost, but a court of equity will not permit tbe owner to prejudice an innocent party by asserting it. 2 Pars, on Cont. 796, note q; Miller v. Platt, 5 Duer, 272; Baichelder v. Sanborn, sup.; J7. J. Co. v. Vincent, sup.</p>

On EXCEPTIONS to the rulings of Gcoddard, J., of the superior court for this county. ■ The case was reported by Justice Goddard as follows : “Assumpsit, commenced June 26, 1869, entered at the September term, and tried by the justice, without the intervention of a jury, at the November term, subject to exceptions in matters of law. Ad damnum $3,000.

<p>On REPORT.</p> <p>The case is sufficiently stated in the opinion.</p>

Ob' REPORT. Assumpsit on a promissory note, signed by Joshua G. Andrews and Marcellus Steward, surety, of the following tenor: “ 1300.00. North ANSoh, Maine, Aug. 10, 1863. For value received, I promised to pay Jabez Wing, or order, three hundred dollars, in one year from date, and interest.” The note bore the following indorsement: “ Joshua Wing, administrator of estate of Jabez Wing.” Joshua Wing was administrator on the estate of Jabez Wing, and was his father.

<p>ON EXCEPTIONS.</p> <p>The case is stated in the opinion.</p>

<p>Committee of appeal — Duty of.</p> <p>When the committee of appeal reverse the decision of county commissioners, it is no part of the duty of the committee to lay out the way or assess the land damages.</p>

ON EXCEPTIONS. On the petition of George W. Parks and others, the selectmen of Richmond widened a town way in their town which was duly accepted by the town, and the selectmen assessed damages in behalf of the owners of the land taken.

ON REPORT. Teespass to recover damages for breaking and entering township number ten, range three, in this county, owned by the plaintiffs and others, across which the defendants’ railroad was located. There was also a count in case for kindling fires on the township, and negligently permitting them to spread and burn and destroy the plaintiffs’ timber. Also a count under R. S. of 1857, c. 51, § 25.

<p>Franchise — who can interpose. Chartered rights — waiver of — evidence of. Location — errors in — no defense to indictment for bad road. Special findings of a jury conclusive.</p> <p>In the trial of a town on an indictment for not keeping in repair a highway extending from the end of a toll-bridge at the side of an island, thence across the island and the lesser channel of the river to the main shore, the objection that the location by the commissioners is within the chartered limits of the toll-bridge corporation is not open to the town.</p> <p>When a corporation is chartered to erect a toll-bridge across a river, and they erect one across the main channel to an island, they may waive whatever rights they have for erecting a bridge across the lesser channel. And evidence that the treasurer of the corporation procured the location of a highway from the end of the toll-bridge, across the island and the small channel to a way on the main shore, and caused the town to he indicted for not keeping such way in repair, is sufficient evidence of such waiver.</p> <p>The opening of a specific part of a highway, within six years from the time allowed therefor, prevents the discontinuance of that part,notwithstanding another portion of the same location has not been seasonably opened, and has thereby been discontinued.</p> <p>The fact, that the record of the county commissioners shows that the return of their doings was not recorded when it should have been, is fatal to their proceedings when presented by certiorari-, hut it cannot be taken advantage of by the town in defense of an indictment for not keeping the way in repair.</p> <p>The special finding of a jury is conclusive on the parties in the absence of any motion to set it aside, and of exceptions to the rulings in relation thereto.</p>

ON EXCEPTIONS. Assumpsit to recover of tlie defendant town three hundred dollars, alleged to be due to the plaintiff by virtue of votes passed at a meeting held on July 20, 1863, of the following tenor: “ Voted, that every man drafted in the town of Pittston on the sixteenth day of July (inst.), as the quota of said town, and held to serve in the service of the United States and considered liable to go and serve, shall be paid and receive three hundred dollars from said town…

On Pacts found by a referee. The case is stated in the opinion. That if during his stay in the army, the alleged pauper formed an intention of going to Wintcrport to live after his return, this would not affect his settlement in Hampden, until that intention ■was carried into effect.

OjN EXCEPTIONS. Account against the defendant as “ receiver of moneys of the plaintiffs.” The plaintiffs proved that in the winter and spring of 1867, they and the defendant were partners in the hunting business, each being entitled to the profits and liable to the losses; that they killed several moose, some of which the defendant sold and received the money for; that the defendant collected an order of $ 108 and various other moneys belonging to tbe firm, amount not known…

ON EXCEPTIONS. Trover wherein the plaintiff claims to recover the value of a stock of goods in Brunswick, in the county of Cumberland. The plaintiff claimed to hold by virtue of a mortgage from one Strout to him, dated Dec. 29, 1868, to secure $700 and interest. The defendant claimed, by virtue of a mortgage from said Strout, to one Thompson, deceased, to secure $300 and interest, dated April 8, 1864.

<p>Audita querela — when and by whom maintainable.</p> <p>■ A j udgment debtor, wbo was absent from the State and not served with process, may maintain audita querela, to set aside an execution issued on a judgment rendered on default, in a personal action, within one year thereafter, without first giving the bond prescribed in R. S. c. 82, § 4, notwithstanding the execution has been returned satisfied by a levy on the debtor’s real estate.</p>

ON exceptions, and motton to set aside the verdict as being against law. TRESPASS. The writ contained three counts; one for breaking and entering the plaintiffs’ close and carrying away the household furniture; the second, for taking and carrying away the household furniture of the wife; and the third, for assault on the wife.

ON exceptions and motion to set aside the verdict as being against law and evidence. Real action. The verdict was for the plaintiff. Thereupon the defendant, under Public Laws of 1872, c. 83, moved that the verdict be set aside, which the presiding justice overruled, and the defendant alleged exceptions. The& defendant also, under R. S. c. 77, § 13, filed a motion to set aside the verdict, and accompanied the motion with a report of the evidence signed by the presiding judge.

<p>Policy of insurance — construction of . Condition — what within Public Laws of 1861, c. 8f. Evidence.</p> <p>A change from occupancy to disuse of a building insured, is a change in “ its use and occupation,” within the meaning of the remedial statute of 1861, e. 34, §4.</p> <p>In a fire policy running hy its terms “ from the 6th day of October, 1866, at noon, to the 6th day of October, 1870, at noon,” the stipulation that if the premises insured “ become vacant and unoccupied for a period of more than thirty days, the policy shall he void,” is not a limitation of the time of the'insurance, hut is in form and substance a condition of the contract, within the scope of Pub. Laws of 1861, c. 34.</p> <p>The breach of such a condition hy the insured does not, in the absence of fraud, affect the contract of insurance, unless the risk is thereby materially increased.</p> <p>The question, whether an unoccupied building is a more hazardous risk than one occupied, does not relate to matters of science or skill, and the opinion of a witness is not admissible.</p>