Volume 60 — Maine Reports

On facts agreed in the superior court for this county. On January 12, 1870, the plaintiffs received a telegram, at Portland, from Messrs. Radeliff & P itterson, of Baltimore, offering to sell them a cargo of corn, at ninety cents per bushel.

On exceptions to the ruling of Lane, J., of the superior court for this county. Assumpsit to recover $117.16, loss on flour, sold by the plaintiffs on commission. The defendants appeared at the return term, and, within the time prescribed by the rules, filed their plea of the general issue, and indorsed thereon the words, ‘Defendants demand jury trial,’ at the same time saying to the clerk that the defendants had no money, and should not pay the jury fee of seven dollars.

On report from the superior court for this county. Replevin for one hundred barrels of flour, which the defendant as sheriff of this county had attached as the property of Alonzo Butler, of Portland. Writ dated July 11, 1871.

<p>On exceptions.</p> <p>Petition for a review of a judgment rendered in the superior court, at the December term thereof, 1871, against the petitioner, on a report of referees in an action referred to them by rule of the superior court, no other matters in dispute between the parties being included in the rule.</p> <p>The respondent contended that no existing statute authorized the review; but the presiding justice ruled otherwise, and granted the review, and the respondent alleged exceptions.</p>

On report. Appeal from the decision of the city council of the city of Portland in relation to damages for land taken for a street. The facts sufficiently appear in the opinion, only one question being raised, to wit, how shall the damage be assessed.

On exceptions to the ruling of Goddard, J., of the superior court for this county. Indictment founded upon R. S. of 1857, c. 7, § 18 (R. S., c. 7, § 12), consisting of five counts, respectively alleging substantially, 1.

On report. Assumpsit upon a policy of insurance dated March 23, 1864. The ship ‘ O. S. Pennell,’ being at New York, obtained a charter from New York to San Francisco, and effected an insurance thereon in the Washington Insurance Company. Subsequently on Jan. 30, 1864, she obtained another charter from the Chincha Islands to Hamburg or Rotterdam. The case has been before the court before. 59 Maine, 217. The remaining facts sufficiently appear in the opinion.

<p> Pleading. General demurrer. Conversion. </p> <p>Under a general demurrer no advantage can be taken of purely formal defects in pleading.</p> <p>'Thus, in trover for a promissory note signed by the plaintiff and made payable by its terms to the defendant, the objection that the declaration does not allege that the plaintiff was possessed of the note as of his own proper goods and chattels; or that it does not allege the value,of the note, being purely formal, cannot be taken advantage of by general demurrer.</p> <p>The abuse of a lawful possession may constitute a conversion.</p>

On exceptions to the rulings of Goddard, J., of the superior court for this county. Case against the defendant as sheriff of the county of Waldo, for the delinquency of his deputy in not surrendering property attached on a writ in favor of the plaintiffs, against James Treat and William Treat. It appeared that the Westbrook Manufacturing Company sued' out a writ in assumpsit against the Treats from the supreme judicial court of this county, on March 6, 1867. Ad damnum $4,000.

On exceptions to the ruling of Lane, J., of the superior court for this county. Debt on a bond dated March 16, 1871, given by the defendants to the plaintiff, to obtain the discharge of an action pending against the P. & O. C. Railroad Company, in favor of the plaintiff, for his services.

On exceptions. Report of referees under a statute submission.

<p>On exceptions to the ruling of Gfoddard, J., of the superior court for this county.</p> <p>The superior,court having been established in 1868, Pub. Laws of 1868, c. 216, § 1, provided that at the end of the then next succeeding July term of the supreme judicial court, all original and appellate jurisdiction in criminal business vested in that court should be transferred to the superior court.</p> <p>Scire-facias on a recognizance entered into at the July term, 1868, of the supreme judicial court for this county, in the sum of five hundred dollars, as provided in Pub. Laws of 1867, c. 180, § 6. The condition of the recognizance was of the following tenor:</p> <p>‘ That if the said David Crowley shall personally appear before the superior court, to be liolden at Portland, within and for the. county aforesaid, on the first Tuesday of January next, to answer to all such matters and things as may be objected against him in behalf of the State, relative to an complaint found against him, now-pending in said court, for keeping and depositing liquors" at Portland aforesaid, in the shop kept by him and said Patrick, on the northerly side of Commercial street, being the third building westerly of India street, with intent to sell the same in violation of law,, and shall abide and perform the order and judgment of the court that may be rendered therein, and shall not depart without license, then this recognizance to be void, otherwise to be in force.’</p> <p>The defendants pleaded nul tiel record, with a brief statement alleging that the recognizance was void.</p> <p>The prosecutor replied that there was such a record, and prayed inquiry by view and inspection.</p> <p>• On the third day of the May term, 1869, the sureties surrendered the principal defendant into court, and moved that they be discharged upon payment of costs; and the principal defendant prayed that the penalty of the recognizance be remitted.</p> <p>But the presiding justice ruled, that § 24, c. 33 of Pub. Laws of 1858, applied to the recognizance, and denied the motion upon that ground. Thereupon the case went to trial.</p> <p>The defendants claimed that the recognizance was void because the condition thereof was not authorized by law. But the court ruled otherwise, and rendered judgment for the State in the sum of five hundred dollars and costs; and the defendants alleged exceptions.</p> <p>So much of the statutes as is essential will be found in the opinion.</p>

On exceptions to the ruling of Groddard, J., of the superior court for this county. Assumpsit on an account annexed. After the contraction of the alleged indebtedness of the defendant to the plaintiff, the latter filed his petition in bankruptcy and received his discharge under the provisions of the U. S. bankrupt act of 1867, prior to the commencement of this action.

On facts agreed in the superior court for this county. Assumpsit.

On exceptions. Assumpsit for pauper supplies furnished by the plaintiffs to one Geo. A. Jones, a pauper found in need of relief in the plaintiff town. The only question raised was that of settlement.

On exceptions to the rulings of Groddard, J., of the superior court for this county, who reported the case as follows: Trover for two horses. Plea, general issue. Plaintiffs claim as mortgagees, by virtue of a mortgage dated Dec. 3, 1870. Defendant claims by purchase from the mortgagors, made after recording of the mortgage, he being ignorant of its existence. And it was shown as follows: Mortgagees never took actual possession of the mortgaged property.

On report from the superior court of this county. Assumpsit on the following note indorsed by the payee to the plaintiff. ‘ For value received by the town of Raymond, and pursuant to a vote passed by said town at a legal meeting of the inhabitants thereof, holden at the town-house in said Raymond on the third day of August, a. d. 1863, and which vote is made a part of these presents, the inhabitants of said town, in their corporate capacity, promise to pay Barn.

On exceptions. The plaintiff in her writ described herself as Charity Griffin, to wit, Charity Pinkham. The defendant appeared at the return term and filed a plea in abatement seasonably to the effect that the plaintiff could not hold and sue by two names, at the same time ; the plaintiff asked leave to amend by striking out the words 'to wit, Charity Pinkham,’ and prosecuting her suit in the name of Charity Griffin, to which the defendant objected.

On petition by Joshua Allen and nine other taxable inhabitants of the town of Jay, against the inhabitants of the town, and Rodolphus P. Thompson, John Hanson, and Warren Leland, selectmen of the town.

<p>Infant — services—how estimated.</p> <p>An infant may repudiate his contract and recover from his employer what his services were reasonably worth under all the circumstances of the case.</p> <p>Thus, in assumpsit for the recovery of such services, where it appeared that the plaintiff, contrary to orders, harnessed the defendant’s colt to the defendant’s wagon whereupon the hit broke, the colt became unmanageable and the wagon was injured, the jury may consider those circumstances in estimating the value of the plaintiff’s services.</p>

On exceptions. Indictment founded on R. S., c. 51, § 36. ‘ That the Grand Trunk Railway Company of Canada, a corporation established by law, and having an office for the transaction of its business at Portland, in the county of Cumberland, and State of Maine, on the first day of August, in the year of our Lord one thousand eight hundred and seventy-one, and within one year from the day of finding this indictment, at Greenwood, in the county of Oxford, were the occupants and…

On report. Assumpsit for pauper supplies. The facts appear in the opinion. contended. 1. That each town is required to relieve all of its paupers within its own limits. 2. That each town is required to relieve all paupers found within its limits. 8.

<p>Equalization statute — construction of.</p> <p>None of ‘the soldiers who enlisted or were drafted and went any time during the war’* are entitled to any of the surplus reimbursed by the State,.' above the amount paid out by the town in which they resided, unless they represented their town in the army.</p>

<p> Descent of property. </p> <p>By virtue of K. S. of 1857, c. 75, § 1, cl. 6, when a minor dies without having been married, the property which he inherited from his father descends in equal shares to his father’s other surviving children, and to the issue of deceased children by right of representation.</p> <p>Thus a father died leaving a widow and one child by a former wife. Thirteen days after his death, a posthumous child was born and died twenty-four days after its birth. Held, that the real estate which the deceased infant inherited from his father, descended to the surviving child to the exclusion of the mother.</p> <p>®. S. 1857, c. 75, § 1, cl. 6, is not restricted to those cases only where the parent ‘leaves a child or children and the issue of one or more deceased children.’</p>

On exceptions. Replevin for two cows and one calf which the defendant, as deputy-sheriff, had attached on a writ in favor of one Davis v. Simeon Nichols f John McKee, the latter being the husband of the plaintiff in this action. The case showed that the cattle replevied, with others, were purchased by the plaintiff’s husband with money which the plaintiff lent him for that purpose from her own earnings before her marriage, which took place in 1864.

Assumpsit for $421. On facts agreed. The parties were joint owners of a parcel of real estate, and agreed to cut the wood and timber on the same, pay each his half of the expense of the operation, and divide equally the proceeds of the sale of the wood and timber so cut. Holt had the general charge of the business, employing the most of the laborers, and paying most of the bills, amounting to $3,033.58.

Scire facias against the defendant as trustee of the Piscataqua Fire and Marine Insurance Company. The plaintiff discontinued as to Ricker. The facts sufficiently appear in the opinion. Contended (inter alia), that, as the attachment was dissolved in the original action before judgment, there was no necessity for any disclosure, and the defendant is not liable to costs on soire famas, but is entitled to recover costs.

<p>On Report.</p> <p>Facts appear in the opinion.</p>

Bill in equity by the Piscataqua Fire and Marine Insurance Company, and the trustees appointed under c. 384 of the Special Laws of 1867 against the defendant, heard on demurrer to the bill. The bill purports to be brought by the plaintiffs in behalf of the creditors, and in their capacity as trustees.

On exceptions. Writ oe entry. It was agreed that on July 8, 1868, the defendant being seized in fee of the demanded premises, conveyed them in mortgage to one Thompson, who on April 30, 1869, assigned and transferred the mortgage and note thereby secured to the plaintiff; that on Jan. 16, 1869, the equity of redeeming the premises from said mortgage was duly seized, notified, and sold by one Mitchell, a deputy-sheriff of this county, on an execution 'against the defendant,…

<p>Bill in equity.</p> <p>Heard on demurrer.</p> <p>The case is sufficiently stated in the opinion.</p>

<p>Bill in equity heard on demurrer to the bill.</p> <p>The case is stated in the opinion.</p>

On report. Assumpsit to recover amount of taxes assessed for the year 1866, and paid under protest Sept. 23, 1867. The amount of the inventory of real estate upon which the tax was assessed was $3,420, including depot buildings at $2,000. The inventory of personal estate was 100 cords of wood at $4 per cord. The aggregate tax $84.04.

<p>Declaration — amendment of. Mew cause — what is.</p> <p>In assumpsit on an account annexed for á certain number of tons of liay at a specified rate per ton, wherein the only dispute relates to the quantity, an amendment adding a count on a parol submission and award, of the specific question in controversy introduces no new cause of action, and is allowable.</p> <p>But an amendment, adding a count on a parol submission and award, not of the quantity of hay, but ‘ of divers controversies ’ between the parties, does introduce a new cause of action; and still if it is certain that no testimony was introduced in support of such an amendment, and the jury only considered the testimony under the other counts, exceptions will not be sustained for allowing the amendment.</p> <p>And it seems such an amendment may, under such circumstances, be stricken out after verdict.</p>

On report. Trespass for taking and carrying away personal property of the plaintiff, value $76.75. The defendant justified the taking as a deputy-sheriff, having seized the property as belonging to the plaintiff and sold it by virtue of an execution issued upon a judgment recovered in favor of one Eaton against the plaintiff. The writ, judgment, and execution and officer’s return on the execution were introduced subject to objection.

<p>On report.</p> <p>Trover.</p> <p>The writ, in the usual form, commanded the officer to summon the defendant to appear and ‘answer unto James C. Ayer and -, of,’ etc., ‘ copartners in trade and doing business under the style and firm name of James C. Ayer & Co.,’ etc.</p> <p>At the March term, 1872, the plaintiff asked leave to insert the names of F. K. Ayer, A. G. Cook, and H. Ely, the other members of the firm, which was granted upon terms.</p> <p>If this amendment was allowable, the case to stand for trial, otherwise plaintiff be nonsuit.</p>

On exceptions. Case for slander, charging that the defendant accused the plaintiff with the crime of adultery. Plea, general issue, with justification. The defendant testified that he saw the plaintiff in the act of adultery with a certain woman. This the plaintiff denied by his own testimony, and introduced the deposition of the particeps criminis, which also denied the charge.

On report. Assumpsit for money had and received. Writ dated Sept. 20, 1870.

On REPORT. Assumpsit for money had and received. Writ dated Dec. 11, 1861. The plaintiff put in a witnessed note dated ‘ Chelsea, Oct. 15, 1858,’ signed by Augustus W. Pratt, payable to the defendant, or order, in three years, with interest semi-annually, indorsed by the defendant to Bragg and Patten and by them indorsed to the plaintiff.

<p>On report.</p> <p>Assumpsit for labor of the plaintiff and his apprentice in erecting certain buildings upon land in Stetson owned by certain minor children, of whom the defendant was the legal guardian.</p> <p>The plaintiff claimed a lien on the buildings on which the work, was done, and offered a schedule and statement filed in the office-of the town clerk of Stetson, Feb. 24, 1871.</p> <p>The plaintiff testified to the performance of the work charged in-the account; that the balance was due, and unpaid; that he made-contract for labor with the defendant, who did not inform him, and the plaintiff did not know, that the defendant did not own the land on which the buildings were erected; that he did not know the contrary until after the work was done; that the defendant told the plaintiff while the work was progressing, that he thought he had money enough to finish the buildings, but did not state whose-money it was.</p> <p>The defendant controverted these facts, and claimed that he-did not notify the plaintiff that the land belonged to the wards, and that he was acting as their guardian.</p> <p>The plaintiff contended that judgment should be entered against the property specifically.</p> <p>The defendant contended that no such judgment should be entered.</p> <p>Thereupon the case was reported to the full court; and if, in the opinion of the court, the fact that the plaintiff knew the defendant was acting as guardian, in making the contract, and knew also when it was made, and while erecting the building, that the land belonged to the defendant’s wards is material, the action to stand for trial.</p>

On report. Case founded on R. S., c. 113, § 51. Writ dated Dec. 14, 1869. Plea, general issue.

Bill in equity heard on demurrer. The bill is brought in the name of the complainant administrator of the estate and heir of Geo.

On exceptions. Trespass for negligently killing one steer, and injuring another Aug. 11, 1870; and killing an ox Sept. 21, 1870, by the defendants’ locomotive engine. The plaintiff’s land, and the adjoining lot on the north owned by James Page, and adjoining lot on the south owned by Samuel Page, are bounded on the east by the Penobscot river, and crossed .by the defendants’ railroad.

<p>On report.</p> <p>Assumpsit on account annexed ; money had and received; and for use and occupation.</p> <p>The defendant conveyed a farm to the plaintiff April 23, 1866, by his deed duly acknowledged and recorded. The deed contained this condition: The condition of this deed is such that if the said Denman Bartlett or his heirs shall pay to the said Philip C. Jones three notes of hand, each at maturity, bearing even date with the instrument, of one hundred dollars each, and payable in one, two, and three years from January, 1867, this deed shall become of full force, otherwise shall be null and void and of no force or effect. The first note was not paid at maturity and Jones thereupon entered upon the land; took possession of it as his own property, for breach of this condition, and let it to a tenant for a compensation ; that is, for one-half of the crops, a part of which he had sold and got his pay. About a year after the expiration of the lease to Jones’s tenant, Bartlett paid Jones the notes and brought this action to recover of Jones what he received from his tenant for the use of the land. If the action cannot be maintained a nonsuit to be entered.</p> <p>The defendant received the payment of the notes, and thus treated plaintiff’s estate in the farm as not at an end.</p> <p>Defendant cannot treat plaintiff’s title at an end for the purpose of taking the income, and as continuing for the purpose of collecting the notes.</p> <p>Bartlett’s estate in the farm continued the same as if the notes had been paid at maturity. Gfuild v. Richards, 16 Gray, 309; Stone v. Ellis, 9 Cush. 103, 97 Mass. 192, 193.</p> <p>The entry was not for condition broken.</p> <p>The condition in the deed is a condition precedent; and the estate did not vest in the plaintiff by the deed. 1 Black. Com. 154, 155; 4 Kent’s Com., 125; Rollins v. Gleason, 47 Maine, 273.</p> <p>The condition was not performed and the deed was null and void by its express terms. '</p> <p>The plaintiff, who had no interest in, no title to, and no possession of, the land, claims to recover for the use and occupation of the land of defendant in whom both the title and possession were united.</p> <p>The acceptance of payment of the notes did not operate as a waiver so as to vest the title in the plaintiff. 1 Black. Com., 155, 156; 4 Kent’s Com., 128; 2 Greenl. Cruise, Title 13, 29 and note; Ghalker v. Ghalher, 1 Conn. 79. .</p> <p>But if it did, it could only operate to vest it in him at, and not before the time of acceptance, because, by the terms of the condition, it would not vest till all of the notes were paid. And he could not, therefore, legally claim to recover for the use and occupation before that time, of defendant.</p>

<p>On facts agreed.</p> <p>Writ of entry. The only question was the validity of an attachment made on a writ, the declaration in which was simply a count for money had and received, with no specification.</p>

On REPORT. Assumpsit to recover a bounty of 1-300 as per votes of the defendant town, at a meeting held Jan. 21,1865, and Feb. 10, 1865, for enlisting as a naval recruit and being counted on the quota of the defendants under the call of Dec. 19, 1864.

On report. Assumpsit by Russel A. Treat, in the name of the plaintiff, on a vote of the defendant town, passed at a legal meeting held on Jan. 28, 1865, whereby they voted: ‘ That the selectmen are hereby authorized and empowered to pay an enlistment bounty of three hundred dollars in addition to any bounty the State or United States may pay, to each and every person who shall be regularly mustered into the military or naval service of the United States as a volunteer, or as…

On report. Debt on a judgment recovered before a justice of the peace within and for the county of Waldo, April 29, 1854. Payment of the judgment had never been demanded of the judgment debtor. If the interest is allowable, the plaintiff to have judgment accordingly. The powers and duties of justices of the peace are derived from the statute. Certain courts are declared to be courts of record ; but justice’s courts are not included. E. S., c. 81, §§ 79, 97.

<p>Intoxicating liquors sold by one not licensed — money paid for not recoverable back.</p> <p>Neither by the common law, nor by any statute in this State, can a person who has purchased intoxicating liquors of one not licensed to sell them, and who has paid for and received them, recover back the money paid therefor, when no element of oppression or deceit enters into the case.</p>

On report. ‘ In a plea of the case for that whereas the plaintiff is a good and faithful citizen of the State of Maine, and has never been guilty of the crime of false swearing and perjury; nevertheless, the said defendant in nowise ignorant of the premises, but contriving falsely, maliciously, and fraudulently to injure and defame the plaintiff in his good character, and to expose him to the penalties of the law against perjury, to wit, on the thirteenth day of December, a.…

On exceptions. Petition for a writ of certiorari to quasb the record of the proceedings in the disclosure of Asaph A. Carleton as a poor debtor. It appeared that Carleton was arrested on an execution issued July 28, 1871, on a judgment recovered in favor of this plaintiff, and committed to jail in this county; that afterwards, on the 81st of said July, Carleton was released from imprisonment by giving a bond with two sureties approved in writing, as follows : ‘Waldo, ss.

<p>In trespass quare clausum — possession presumed in real owner. land sold for taxes — to be accurately described.</p> <p>In trespass quare clausum, the possession is presumed to be in the owner of the legal title, in the absence of all other evidence.</p> <p>In the sale of land for non-payment of taxes, the land assessed and sold must be accurately described.</p> <p>Thus in the notice of the State treasurer’s annual sale of lands in places not incorporated, and forfeited for state and county taxes, certain land, situated in township No. 8, South Division, in Hancock county, consisting of twenty thousand acres, was advertised and described as follows : ‘ Track No. 8, S. D. Advertised 4197; Held, That the description was too vague to pass the title.</p>

<p>On report.</p> <p>The pacts are sufficiently stated in the opinion.</p>

On exceptions. Petition by the school agent of district No. 18, in Ellsworth, for mandamus against the defendants, as assessors of Ellsworth.

On REPORT. Assumpsit on a promissory note of the following tenor: ‘11,000. Calais, October 18, 1869. Sixty days after date I promise to pay, to the order of Z. Chip-man, one thousand dollars at St. Stephen’s Bank, N. B., in U. S. currency, value received. J. M. Hall.’ On the back of the note were the names, Rufus Ham and Seth M. Todd. Writ dated Sept. 29, 1870. The plaintiff read the note and rested his case.

<p>On facts agreed.</p> <p>The petitioners made written application to the county commissioners, to estimate the defendant’s damages for land taken for the location of the petitioners’ railroad; and after due proceedings, the commissioners estimated them at the sum of six hundred and fifty dollars, and made their return thereof in July, 1871. Thereupon the petitioners appealed. And after due proceedings, the jury estimated the damages at §485, and rendered their verdict accordingly, which was duly returned and confirmed.</p> <p>Neither party made any objections to the acceptance of the report of the person who presided at the hearing before the jury, nor • to the acceptance of the verdict.</p> <p>Both parties claimed costs, and reported the case to the full court to determine which was the losing party.</p>

<p>On report.</p> <p>Trespass quare clausum.</p> <p>The case is sufficiently stated in the opinion.</p>

On exceptions and motion. Petition for diminution of damages, allowed by the county commissioners for this county to the respondent, for land duly taken by the petitioners for the location of their railroad, and on appeal heard and tried before a sheriff’s jury, summoned and impanelled for that purpose on Jan. 23, 1872.

On exceptions and motion. On petition for increase of damages assessed against the respondents by the county commissioners, for land of the petitioners taken by the respondents for the location of their road, and for a jury, on appeal, to estimate the damages. The jurors summoned duly appeared on Jan. 24, 1872.

<p>Trusts — discharge of. How enforced by cestui que trust, using the name of the trustee.</p> <p>If a cestui que trust be induced by fraud to discharge the trust, it must be considered as extinguished so far as an innocent purchaser of the trust-property, who buys relying upon the discharge, is concerned.</p> <p>But if a person whose own note is deposited in trust for others, among whom its . proceeds are to be divided, obtain possession of it without the consent of the cestuis que trust, an action for money had and received brought against him, in the name of the depositary, by and for the benefit of one of those entitled to a share of the amount due on the note, is maintainable ; nor can the suit be discontinued by the nominal plaintiff, or his assignee without the assent of the party in interest.</p>

465 of the Special Laws of 1870. The only contest was, whether nominal or substantial damages should have been awarded upon the following facts, proved or admitted, viz.: Kenduskeag stream is a navigable stream, the tide usually flowing from fifteen to twenty feet at the point in controversy ; the street as now laid out extends from high-water mark, over the flats, to the wharf line established by the city under the authority of the legislature.

<p>Vessel — sale of by master — notice to owners. Trover.</p> <p>The sale, by the master, of such parts of a vessel as belong to part-owners who were not, but might have been, notified by telegraph in season .to act in the premises before the sale, is void.</p> <p>Thus a vessel went ashore on one of the ‘ Wolves’ in the Province of New Brunswick, on the morning of July 6, and the master, leaving her in charge of the mate, arrived at noon of the same day in Bastport. Between Eastport and New York there was constant telegraphic communication, and a telegram sent by the master on his arrival in Bastport, to the plaintiffs resident in New York, would, in the usual course of business, have received an answer several hours before the sale, which took place in the afternoon of the next day. Held, that the sale was void.</p> <p>One of the defendants bid off a vessel at a sale thereof by the master, which was void for want of notice of the disaster to the plaintiffs who were part-owners. The other defendant paid part of the purchase-money, the expenses of fitting her for sea, insured her in his own name, participated in her earnings, and refused. to recognize the plaintiffs as owners of any part of her. Held, that trower would lie.</p>

On REPORT. Assumpsit on an award made upon a submission at common law, which may be found in the opinion.

<p>On exceptions.</p> <p>At a court of county commissioners for the county of Sagadahoc, on the first Tuesday of March, 1871, held by adjournment on the second Tuesday of May, 1871, a petition, signed by Aaron II. Goodwin and tw'enty-four others, was entered, alleging — ‘ that a town-way from or near the residence and land under the improvement of Charles L. Doughty and Aaron H. Goodwin, to the river road leading from Lisbon to Topsham village, in said town, would be of great public convenience ; that the selectmen of said towns, after notice and petition being presented to them, refused to act on said petition, but recommend said petitioners to petition the county commissioners. ‘ Wherefore,’ the petitioners prayed that the county commissioners ‘ would, agreeably to law, lay out said town-way.’</p> <p>Thereupon, the commissioners ordered notice upon the petition ; and afterwards, pursuant to the notice, met the parties, viewed the route and roads connected therewith, heard the parties, and at their July term, 1871, adjudged and determined ‘That common convenience and necessity do not require the establishing of the road prayed for in the foregoing petition.’ Thereupon Aaron H. Goodwin and Charles L. Doughty appealed from the decision of the county commissioners to the succeeding August term of the supreme judicial court for the county of Sagadahoc, which appeal was duly entered at the August term of the appellate court, when J. L. Swift, Lemuel H. Storer, and Charles C. Humphreys were appointed a committee, who, upon due notice, viewed the premises, heard the parties, and made their report to the April term, 1872, of the supreme judicial court, reciting therein</p> <p>‘ That the judgment of the county commissioners, in refusing to lay out a way as prayed for, ought to be reversed in whole; that public convenience and necessity do require that a town-way, as prayed for, be laid out by the county commissioners over the route viewed by the committee, three rods wide.’ Then followed the several courses and distances of the proposed road. The report was signed by two only of the committee.</p> <p>At the April term, 1872, the inhabitants of Topsham appeared by their attorney, and filed a motion that the report be set aside, and that the petition and all proceedings thereunder be quashed,</p> <p>1. Because neither the county commissioners nor this court had, or has any jurisdiction of the matter embraced therein; and . . .</p> <p>14. Because there has been no adjudication that the municipal officers of Topsham ‘ unreasonably refused ’ to lay out the way prayed for.</p> <p>The presiding judge ruled the objections well taken, and rejected the report of the committee ; and the appellants alleged exceptions.</p> <p>contended</p> <p>That the objection to the jurisdiction came too late, and cited Brunswick v. Go. Com. of Qumb. Go., 37 Maine, 446; and that Small v. Pennell, 31 Maine, 267, was between persons not parties to the record — collateral parties — and not applicable to this case, which is between the immediate parties.</p>

Petition by Benjamin F. Marble and nine others, taxable inhabitants of School District No. 1, in Woolwich, under Pub. Laws of 1864, c. 239, against the town treasurer. The case is stated in the opinion. cited Soper y. School District in Livermore, 28 Maine, 193; Collins v. School District in Liberty, 52 Maine, 522; R. S. of 1857, c. 11, §§ 27, 28, 29.

On exceptions. Assumpsit to recover two and one-half per cent commissions for chartering two ships belonging to the defendant, of 889 and 756-nnr tons respectively, to the U. S. government, in Dec. 1864, for the transportation of hay.

<p>Disclosure of trustee. Personal wages — exemption. Payment — how appropriated.</p> <p>R. S., o. 86, § 55, exempting from the process of foreign attachment a sum not exceeding twenty dollars as wages for personal labor, does not apply to that which is due from the alleged trustee, for the wages or work of other men employed by the principal defendant, or due to him upon jobs into which other matters besides his personal labor, not capable of being distinguished from it, enter to prove the price he is to receive, even though the amount thus due at the time of the service of the process does not exceed the amount of his wages for his personal labor during the month next preceding.</p> <p>It must appear by the disclosure, that the money is due as the wages of personal labor in order to bring it within the statute exemption.</p> <p>Under a bona fide contract that the principal defendant, in a process of foreign attachment was to receive a certain sum per diem for his own wages, and pay for the work of others employed by him at a fixed rate, the wages of the principal defendant’s personal labor, so far as can be ascertained from the accounts, not exceeding the statute amount during the preceding month, may be exempted.</p> <p>Payments under such a contract, in the absence of any specific appropriation by the parties, would be appropriated to the earliest items of debit in the account.</p> <p>In a disclosure on scire facias, all doubtful or uncertain statements aTe construed against the trustee having it in his power to make them positive.</p> <p>Thus, where a trustee disclosed that at a time specified, the principal defendant in the original action was ‘ nearly paid up,’ it is incumbent upon the trustee to show how nearly, and why any portion of the balance should be taken as due for personal wages, if he would have a further deduction upon that score.</p> <p>Where in scire facias against a trustee, the exceptions state that the trustee was discharged on said disclosure, it cannot be contended that he was discharged because of the failure on the part of the plaintiff to exhibit the record alleged in the writ, unless such failure appear in the disclosure.</p> <p>A respondent in scire facias against a trustee, will not be relieved from the payment of costs under R. S., c. 86, § 78, on the ground that the officer who served the original writ upon him, told him in the street that he had such a writ, but did not read it to him, or give him a copy, and that he did not know that it was necessary for him to appear and disclose, especially when the officer made return of legal service.</p>

On exceptions. Replevin of six oxen, property of the plaintiff, taken upon the defendant’s land, to which they had escaped from the plaintiff’s adjoining land, and by the defendant impounded.

<p> Practice. Amendment by summoning additional defendants. </p> <p>In an action founded on contract against a sole defendant, the plaintiff cannot, under E. S., c. 82, § 11, summon in, as additional defendants, joint promisors unless he intends to prosecute his action against the party originally sued, or in case of his death, then against his personal representative.</p> <p>If the original party sued die before the joint promisors are summoned in, the plaintiff may, under E. S., c. 82, § 23, pursue his remedy either again'st the survivors, or the estate of the deceased, or against both, in separate suits. Prior to the passage of Pub. Laws of 1870, c. 128, there could be no summoning in any surviving joint promisors as additional defendants, when the only original defendant was the personal representative of a deceased party.</p> <p>Since the passage of that statute, re-enacted in E. S., c. 87, § 10, the summoning in of survivors, with the personal representative of a deceased joint promisors is not authorized, except in cases where, if the plaintiff prevail, a joint execution can issue without violating other statute provisions.</p> <p>A joint execution cannot issue without contravening E. S. c. 66, §§ 16, 17, when the estate of the deceased defendant is represented insolvent.</p>

On exceptions. Petition for a writ of prohibition against the county commissioners for this county.

On report. Replevin. Writ dated Aug. 2, 1870. Plea, general issue, and brief statement that the stones were the property of one Andrews, and that the defendant held them as an officer by virtue of an attachment made Feb. 23, 1870, on a writ Joseph It. Bodwell v. Ira Andrews.

On Exceptions. Assumpsit to recover pauper supplies. The declaration contained a special count only, as follows: For that one John Washburn, a person having his legal settlement in the town of Hebron, fell into distress in said town of Ripley on Dec. 2,1867, and then and there stood in need of immediate support and relief; and the plaintiffs, by their overseers of the poor, then and there, and from that time to Nov. 24, 1869, furnished and continued to furnish the said John…

<p>Judgment — when it may he pleaded in bar.</p> <p>A judgment in an action of trover against the defendants’ warrantee, rendered upon a trial involving only the defendants’ title to chattels as against that of the plaintiff, is a har to an action hy the plaintiff against the defendants themselves, involving the same issue, and to he supported hy the same testimony.</p> <p>Thus, the owner of a lot of logs conveyed them to the defendants hy a mortgage, hill of sale, and subsequently, hy an absolute hill of sale, to the plaintiff’s intestate. Still later, the defendants sold a portion of the logs and warranted the title to one Conner, who converted them; whereupon the plaintiff sued him in trover for their value. At the trial, the only question tried was the strength of the defendants’ title under the mortgage as against that of the plaintiff’s intestate under the absolute hill, and the defendant recovered judgment. In this action, involving precisely the same question, and depending upon the same testimony; Seld, That the judgment in favor of Conner was a har.</p>

On report. Trespass quare clausum. It was admitted that a trespass was committed,by the defendants [a building committee] as alleged in the writ, unless they show that the premises had been legally designated, laid out, and taken for a school-house lot for school district No. 2, in Mercer. The view taken by the court, renders a report of the following facts' only, necessary.

On exceptions. Assumpsit, on an instrument of the following tenor: ‘Policy No. 4,838. 3-4 Sch. Justiana. Rockland, May 21st, 1853. For value received, we promise to pay the Lime Rock Insurance Co. or order, fourteen months from date with interest after, the sum of two hundred and twenty-five dollars, and such other sums as may arise as additional Premium on said Policy. P. A. Hewett. Benj. Crandon. Attest: — C. R. Mallard.’ Plea, general issue and statute of limitations.

<p> Criminal law—pleading. </p> <p>An indictment should charge an offense in the words of the statute or in language equivalent thereto.</p> <p>Thus ‘unlawfully and maliciously’ throwing down a gate, is not equivalent to ‘wilfully and maliciously’ doing it.</p>

On report. Appeal from the decree of the judge of probate for the county of Kennebec, in allowing the account of Howard Pettingill, executor of the last will and testament of Howard Pettingill, deceased March 28, 1840. So much of the will of the testator as is essential appears in the opinion.

On exceptions. Debt on judgment. Plea, nul tiel record. Plaintiff put in a copy of the record of a judgment between the parties. Defendant suggested an alteration of the record, and proved, subject to plaintiff’s objection, that the sums, indicating the amounts of debt and costs recovered, were inserted by the present clerk of courts in blanks left with the rest of the record which was filled out by the gentleman who filled that office in 1862.

On motion to set aside a verdict as being against law and the weight of evidence. Assumpsit. For that the said defendant at said Gardiner, to wit, at said Augusta, on the day of the purchase of this writ, being indebted to the plaintiff in the sum of five thousand and five hundred dollars, according to the account annexed, then and there in consideration thereof, promised the said plaintiff to pay him that sum on demand.

<p>Judgment including items previously paid — remedy—review. Limitations— statute of.</p> <p>Where a debtor has paid certain items of Ms creditor’s account, and the creditor subsequently takes judgment for the full amount of the original account, the debtor cannot recover back the anumnt thus paid and wrongfully included in the judgment, his remedy being review.</p> <p>No verbal acknowledgment or promise on the part of a debtor can take the items, of an account out of the operation of the statute of limitations.</p>

On report. Scire-facias requiring the defendant to show cause why an alias execution should not be issued upon a judgment recovered by the plaintiff against the defendant at the September term, 1867, of this court, upon which judgment execution issued Oct. 17, 1867,, and was returned satisfied by a levy upon certain real estate in Pittsfield, because, as the plaintiff alleged, the title to the land levied on, at the time of the levy, was not in the defendant, but in one…

On exceptions. In a plea of dower, wherein the plaintiff demands against the defendant, her dower or just third part of and in a certain piece of land, with the buildings thereon, situated in Dresden, in said county of Lincoln, and bounded as described in a deed from Francis Stilphen to the defendant, dated the 4th day of October, a. d. 1864.

On report. Assumpsit to recover the price of certain stumpage of timber, cut by the defendant on the N. W. & S. E. quarters of T. No. 8, R. 4, W.¿E. S. L., in the county of Aroostook, in the winter of 1870-71. Writ dated Sept. 25, 1871. The liability of the defendant was admitted; the only question being as to the right of the plaintiffs to receive the money. The title of the land was admitted to have been in the State under whom both parties claimed.

<p>On exceptions to the ruling of Symonds, J., of the superior court for this county.</p> <p>Assumpsit on a promissory note, dated May 1,1871, for $2,500, given by the defendant to the plaintiff, payable in one year, with interest at ten per cent.</p> <p>The writ was dated August 3, 1872, ad damnum, four thousand dollars.</p> <p>The defendant filed a general demurrer, and the plaintiff joined the demurrer.</p> <p>The presiding justice overruled the demurrer and adjudged the declaration good ; thereupon the defendant alleged exceptions.</p> <p>The presiding justice, deeming the exceptions, frivolous and intended for delay, on motion of plaintiff, so certified, and transmitted them at once to the chief justice and directed them-to be argued in writing on both sides within thirty days, in accordance with R. S.. c. 77, § 21.</p>

On exceptions to the rulings of Lane, J., of the superior court. Assumpsit for labor and materials; tried by the justice without the intervention of a jury, subject to exceptions in matters of law. Plea, the general issue, with brief statement that the question at issue was whether there was a contract between the plaintiff and defendants to do the work and furnish the materials sued for in the writ.

On exceptions. Assumpsit upon an account annexed for labor and materials furnished the New England Express Company, an unincorporated, joint-stock association. Upon one of the original subscription papers to its stock were the names of the defendants; but, as to several of them, there was no direct proof of genuineness, nor how they came there. It was shown, however, that they subsequently paid assessments upon the number of shares set against their respective names.

On report. Debt on bond given by Leonard Keith, as treasurer of the town of Farmington, for the year 1863-4, with the defendants as sureties, conditioned that he ‘ shall faithfully discharge all the duties of said office.’ Keith’s actual receipts as treasurer, during the municipal year aforesaid, were $12,320.85 ; but, from an error in adding up the items, the footing up on the books was only $10,230.85, being $2,090 less than the true amount.

<p>Carriers — liability of beyond their route.</p> <p>A carrier is not liable for goods lost beyond tbe end of Ms route, unless by special contract.</p>

<p> Life-estate. Contingent remainder. JEstoppel. Seal action. </p> <p>A father, by deed of -warranty, conveyed certain land to his daughter by name, 'for her use and benefit during her lifetime, and after her decease, to her legal heirs, to them and their heirs and assigns forever.’ Held, That the daughter named took (by R. S., c. 73, § 6), a life-estate in the premises, the remainder in which was contingent until her death, when it vested in those who were then her heirs at law.</p> <p>Where the contingent remainder man, prior to the decease of the tenant for life, conveyed the estate by deed of general warranty; Held, That the title which vested when the contingency ceased, enured to the benefit of such grantee, and the grantor was estopped by his deed.</p> <p>Where the contingent remainder man, prior to the decease of the tenant for life, conveys his right, title,' and interest to the estate, by deed of quit-claim, with the only covenant that the will ‘warrant and defend the premises to the granter, his heirs and assigns against the lawful claims of all persons claiming by, through, or under ’ the grantor, the remainder vesting at the decease of the tenant for life, will not enure to the benefit of the grantor, nor will the grantor be estopped from maintaining a real action therefor.</p> <p>A joint real action cannot be maintained when one of the plaintiffs is estopped by his deed to set up the title.</p>

On exceptions. Assumpsit to recover for the labor and materials, amounting to $1,599.28, expended by the plaintiff in repairing the ‘ Ware Tannery ’ in Athens in this State. The writ was dated Aug. 80, 1869, and contained a special count, count on an account annexed, count for money laid out and expended, and a count for labor and materials .furnished. Plea general issue.

On report. Assumpsit against the indorser of a negotiable promissory note, of the following tenor: 11,650. . Bath, April 1, 1867. Four months after date, I promise to pay to the order of Washington Gilbert, sixteen hundred and fifty dollars, value received, payable at my counting-room, in Bath. (Signed) B. C. Sewall. Indorsed: W. Gilbert. Protested for non-payment. Notice to indorser, Aug. 3, 1867.

<p>Indictment alleging that the Maine Central Railroad Company, a corporation duly and legally established in this State, in said county of Kennebec, on the 27th day of June, a. d. 1871, at Earrningdale, in said county, over, upon, and along a certain railroad called the Portland & Kennebec Railroad, managed, operated, and controlled by said Maine Central Railroad Company, running and extending from Augusta, in said county, to Portland, in the county of Cumberland, did, by their agents and servants, run, conduct, and drive a certain locomotive steam-engine and train of cars attached, and by their agents and servants, then and there had the care, custody, management, and control of said engine and cars ; upon which said engine was one Wilson Cavill, a servant of said’ company, then and there acting in the capacity of fireman, and being then in the exercise of due care and diligence; that by the gross negligence and carelessness of the agents and servants of said Maine Central Railroad Company, other than the said Wilson Cavill, the said locomotive steam engine, with train of cars attached, was then and there permitted and suffered to strike and run into and against, and to be with great force and violence-driven and dashed into, upon, and against a certain other locomotive steam-engine, and one car attached, called the Gardiner and Augusta accommodation train, which said accommodation train was then and there lawfully traveling and being propelled on and along said railroad, by means of which the aforesaid engine, upon which was the said Wilson Cavill, was thrown with great violence from the track of said railroad and broken in pieces; whereby divers mortal injuries, bruises, scalds and wounds were inflicted upon the head, body, and limbs of the said Wilson Cavill, of which said mortal injuries, bruises, scalds, and wounds the said Wilson Cavill, on the twenty-ninth day of said June, a. d. one thousand eight hundred and seventy-one, at said Augusta, died.</p> <p>And so the jurors aforesaid upon their oaths aforesaid, do say that the life of said Wilson Cavill, he being then and there a person in the exercise of due care and diligence, was then and there lost by reason of the gross negligence and carelessness of the aforesaid agents and servants of said company, other than the said Wilson Cavill, in manner and form aforesaid; whereby the said Maine Central Railroad Company have become liable to forfeit not less than five hundred nor more than five thousand dollars, to be recovered by indictment, wholly to the use of, etc.</p> <p>To this indictment the defendants filed a demurrer, which was joined.</p>

On excextions. This case came before this court on the return of the proceedings had before a jury impannelled to assess damages for land taken by the defendants for their railroad, with the report of the evidence and the verdict of the jury. • ' The report, .signed by the presiding officer, certifies no party requested him to certify any rulings made by him.

<p>On exceptions and motion.</p> <p>Trespass.</p> <p>cited Smith v. Morrill, 56 Maine, 564, 568; Hesseltine v. Stoclcwell, 30 Maine, 23T ; Bryant v. Ware, 30 Maine, 295.</p>

On exceptions. Debt on the official bond of Benjamin D. Peck, treasurer of the State of Maine, dated Jan. 28, 1858. Writ dated March 28, 1861. At the April term, 1868, the defendants pleaded full performance of the covenants and condition of the bond.

<p>On report.</p> <p>Indictment for maintaining a nuisance.</p> <p>The respondent submitted the following motion in writing, verified by oath.</p> <p>That the grand jurors by whom the indictment was found and returned, were not lawfully selected, impaneled, and sworn, and duly qualified to act as such grand jurors in this.</p> <p>That chapter 216 of the Pub. Laws of the State of Maine, of the year 1868, entitled ‘ an act to enlarge the jurisdiction of the superior court in the county of Cumberland,’ which said act was the only law that conferred criminal jurisdiction upon said superior court, prior to Jan. 13, 1872, was repealed by act of the legislature of said State of Maine, approved March 24, 1870, entitled ‘ an act to repeal the acts consolidated in the Revised Statutes of the year one thousand eight hundred and seventywhich said last-named act took effect on and after Feb. 1, 1871, prior to the day when the only pretended venires for said grand jurors, issued out of the clerk’s office of said superior court, and prior to the term of said superior court, which was held on the first Tuesday of September, 1871. At which said September term of said court, all the pretended venires for said grand jurors were returnable, and said grand jurors were pretended to be impaneled and sworn, and have not been impaneled and sworn from that day hitherto. And during all the said time, from said first day of February, 1871, to the thirteenth day of January, 1872, said superior court had no criminal jurisdiction, and no lawful authority to issue venires, for said grand jurors, and impanel and swear said pretended grand jury, nor have any other venires, issued from said superior court for grand jurors, nor has any other grand jury been impaneled and sworn from said first day of February, 1871, hitherto.</p> <p>And it was by a pretended grand jury, thus selected, impaneled, and sworn at said September term of said superior court, that said indictment was found.</p> <p>And the act of the legislature of said State approved Jan. 13, 1872, entitled ‘an act relating to the superior court for Cumberland county,’ so far as it was intended to apply to said jurors, was in violation of § 7, Art. I, of the constitution of Maine, and of other provisions of said constitution.</p> <p>And said act of Jan. 13, 1872, so far as it was intended to legalize and make valid the selection, impaneling and swearing said grand jurors, and doings of said pretended grand jury, was in violation of the constitution of the United States, Art. 1, § 9, p. 3, and Art. of Amendment XIY, p. 1, and further provisions of said constitution.</p> <p>And this he is ready to verify, by the record of this court, and by a certified copy of said act of the legislature.</p> <p>To sustain the allegation that c. 216 of the Pub. Laws of 1868, which conferred criminal jurisdiction upon superior court, was repealed, the respondent introduced, without objection, a copy, certified by the secretary of State, of ‘ an act to repeal the acts consolidated in the Revised Statutes of the year 1870,’ the essential part of which was as follows :</p> <p>‘1868. Chapters numbered 159 to 226, inclusive, except chapters 170, 173, 195, and 225.’</p> <p>It appeared that all the venires for the grand jurors, who found the indictment, were issued from the office of the clerk of said court, July 22, 1871, returnable to the next September' term of said court. That at said September term, 1871, said grand jurors were sworn and impaneled, and have never been sworn and impaneled at any other time or term of said court; that it was by this grand jury, thus selected, sworn, and impaneled, that said indictment was found at this term of said court.</p> <p>The question raised and submitted to the law court for decision is as follows:</p> <p>Shall said indictment be quashed for the reasons set forth in said motion, or shall it stand for trial ?</p> <p>Deeming it important that this question of law should be determined before the action is tried, it is reserved for the consideration of the full court, as provided in R. S., c. 134, § 26, at the request of the county-attorney, and on motion of the respondent’s counsel.</p> <p>cited State v. Maher, 49 Maine, 569; R. S., c. 134, § 26; Pub. Laws, 1868, c. 216; Pub. Laws, 1870, c. 174; Pub. Laws, 1872, c. 1; State v. Symonds, 36 Maine, 128; State v. Lightbody, 38 Maine, 200; Const, of Maine, Art. I, § 7; Const. U. S., Art. XIV. § 1; Taylor v. Porter, 4 Hill, 147 ; Green v. Briggs, 1 Curtis C. C. 311; 18 How. 272; 4 Dev. N. C. 15; 5 Watts & Sergt. 193; 2 Kent’s Com. 13; 13 N.T. 393.</p> <p>in addition to the statutes, cite'd Walter v. Bacon, 8 Mass. 472; Loche v. Bane, 9 Mass. 363; Bavidson v. Johannot, 7 Met. 388, 396; Underwood v. Libby, 10 Serg. & Rawle, 97, 106.</p>

On facts agreed. Writ dated March 16, 1871. Plea, general issue and joinder.

Writ of error, dated May 6,1871. In a plea of error, whereas the said A. T. Denison alleges that in the process, proceedings, and judgment had before the superior court of the county of Cumberland, and held at Portland on the first Tuesday of April, A. d. 1871, wherein the said Portland Company were plaintiffs, and the said A. T. Denison, defendant, there occurred the errors hereinafter specified, by which the present plaintiff was injured, and for which he therefore seeks…

On facts agreed in the superior court for this county. Assumpsit on a promissory note given by the defendant to the plaintiffs. Just before Aug. 19, 1871, the plaintiffs, resident in Portland, sent the defendant, residing in Springvale, in the county of York, a statement showing $236.44 due them.

<p>On report from the superior court for this county.</p> <p>Case in tort, to recover damages to the plaintiff*s horse and carriage, by the careless, negligent, and unskilful driving of the defendant, while in possession of them under a contract for a pleasure drive on Sunday, to the Atlantic House, Scarborough, the injury complained of having occurred on Sunday, during such drive.</p> <p>The substantive allegations in the declaration were:</p> <p>For that the said defendant, at said Portland, on the twenty-fifth day of June, a. d. 1871, being in the lawful possession of the plaintiff’s horse, carriage, and harness, then and there negligently and carelessly drove the said horse, by reason whereof the said carriage was overturned, the top thereof torn and destroyed, the body of said carriage completely broken to pieces, the springs thereof broken, and said carriage otherwise greatly damaged and injured, the said harness broken aiid damaged, the said horse bruised, strained, and lamed, etc.</p> <p>The defendant claimed, as matter of law, that the plaintiff could not recover upon proof of all the facts alleged, because the damages resulted from the letting of the horse on Sunday.</p> <p>Thereupon the parties submitted the case to the full court; and if, upon proof of the allegations, he was not entitled to recover, he was to be nonsuit.</p> <p>contended that the plaintiff did not invoke aid from the contract of bailment to establish his case and could recover, and cited Morton v. Gloucester, 46 Maine, 520; Gregg v. Wyman, 4 Cush. 822; Woodman v. Subbard, 5 Foster (N. H.), 67; Tillock v. Webb, 56 Maine, 100.</p>

On exceptions. Case, for deceit in the sale of a farm. The verdict was for the plaintiff. The case is stated in the opinion.

<p>Certiorari — when not issued. Regular session of county commissioners.</p> <p>The selectmen of a town, after dxxe proceedings, laid oxxt a town way, and awarded to one of the land-owners an under-pass for Ms cattle, in addition to a specific sum as damages, and the town refxxsedto accept the road. Thereupon the coxxnty commissioners, upon petition seasonably presented, laid oxxt the road, omitting the xxnder-pass. Held, That a writ of certiorari will not be granted to a petition of the town to quash the proceedings of the commissioners.</p> <p>A petition presented at a session of the county commissioners held by adjournment from a regular session, is a presentation ‘at aregular session’ -within the meaning of R. S., c. 18, §§ 23 and 24, although the cause of action set forth in the petition did not occur until after the time fixed by the statute for the commencement of the regular session.</p> <p>A petition to the county commissioners setting forth all the essential jurisdictional facts, but addressed to a court of county commissioners ‘next to be holden on the-day of November, 1866, by adjournment from,’ etc., was entered at a session held on a certain day in the succeeding March, by adjournment from the regular session of the previous September, and was acted upon. Held, That jurisdiction attached.</p> <p>Where it appears by the record that the selectmen filed on Sept. 1st, a return of their proceedings in laying out the way, and on the same day issued their warrant for a town meeting, containing an article to see if the town will accept the ‘road as laid out’ by them, — a writ of certiorari will not he issued to quash the proceedings of the commissioners in a subsequent laying out by them, on the ground that it does not appear that the warrant for town meeting was issued after the filing of the return of the selectmen.</p>

On exceptions. Motion to set aside the verdict of a jury summoned under R. S., c. 11, § 34, by the petitioner, upon the alleged ground that he was aggrieved on account of the location of a school-house upon his land in school-district, No. 8, in Cape Elizabeth, by the municipal officers of Cape Elizabeth, and on account of the damages awarded therefor.

On exceptions. Assumpsit on an account annexed. At the September term, 1872, the defendant filed a motion to stay the proceedings (under R. S., c. 82, § 111), upon the ground that in Coos county, New Hampshire, in an action for the same cause, brought by the plaintiff against the defendant, the latter recovered judgment against the former on nonsuit, for costs which had never been paid.

<p>Evidence — hearsay.</p> <p>In. the trial of one Reed for the murder of one John Ray, it became a material question, as to the manner in which the defendant hurt Ms hand, wMeh was found swollen on the morning after the murder. The defendant testified that he hurt it in a fall while getting over a pair of bars with a bunch of shingles on Ms shoulder, and that it was an old sprain and had swollen several times. One Vance, called by the defendant, to impeach certain government witnesses, testified on cross-examination, that the defendant told him what the defendant told one Elder Ray about injuring his hand, — that he could not testify, positively, what it was, it was so long ago, — that it was something about ‘ getting over a pair of bars,’ but whether it happened when the defendant was' after a cow, he did not know. Subsequently one Hale, called by the government, was permitted to testify against seasonable objection, that Vance told witness that defendant told Elder Ray that he hurt his hand ‘ when after a cow, and struck his hand against a log, or something;’ Held, That the testimony of Hale had no tendency to impeach the testimony of Vance upon anything material to the issue, and was not admissible.</p>

On report. Case to recover double the value of thirty-eight rods of partition fence assigned to the defendant by the fence-viewers, and upon his neglect to build the same, built by the plaintiff, with the fees of the fence-viewers and interest at the rate of one per cent a month, under R. S., c. 22, § 4. The court to enter the legal judgment. The case is stated in the opinion.

On report. Assumpsit to recover assessments on five shares of the plaintiff company, amounting in all to the par value — $500. The subscription contract was as follows: 1.

<p>Warrant for town-meeting — sufficient article in. Selectmen — authority of under vote. Condition subsequent — subscription of stock on. Assessment on stock —when valid.</p> <p>An article in a warrant for a town-meeting is sufficient, if it gives notice, with reasonable certainty, of the subject-matter to be acted upon.</p> <p>Thus, where the only mode provided in the charter of a railroad, by which towns interested therein may aid in its construction, is a subscription for its stock, an article in a warrant for a town-meeting ‘ to see if the town will loan its credit to aid in the construction of the ’ railroad named, gives reasonable notice, that a proposition to subscribe for stock will be acted upon, and will authorize such action.</p> <p>Where, under such an article, the town authorized its selectmen to subscribe, in behalf of the town, for stock in the railroad named to the amount of sum specified, without designating the kind of stock, and the selectmen subscribe for the ‘non-preferred stock,’ the town is bound by the selection made.</p> <p>Where the persons who subscribed for the stock, signed the subscription as selectmen, therein referring to the vote under which they acted, and were the same persons who called the town-meeting at which the vote was passed, it will be presumed, in the absence of any evidence, that any other persons had been elected or had acted as selectmen, that they were the selectmen.</p> <p>"Where railroad stock is subscribed for, in behalf of a town, upon the condition that the road shall be built through the town on the line as run by the engineer, with a suitable depot for the convenience of the public,’ — such a condition is a condition subsequent, and will not defeat an action for the amount subscribed, although the condition had not been performed when the action was commenced.</p> <p>The by-laws of a railroad company provided that no assessment shall be made upon any shares until the full amount of the estimated cost of the road shall first have been subscribed by responsible parties. It appeared that the estimated cost was subscribed; and the directors, acting in good faith, decided that the estimated cost had been subscribed by responsible parties, and thereupon proceeded to make the assessments; Held, That the assessments were valid; and that they could not be rendered invalid by showing, as matter of fact, that some of the subscribers were not responsible.</p>

On exceptions and motion to set aside the verdict as against law, and the weight of evidence, and because the allegations do not support it. Case for deceit in the sale of land. The defendant Lancey, claimed to be the owner of two hundred acres of land in Canada. The other defendant, acting as the agent of Lancey, came to Maine for the purpose of getting up an association of individuals to whom he might sell the land for the purpose of manufacturing oil.

On report. The case is sufficiently stated in the opinion. The ‘ return ’ mentioned in R. S. of 1847, c. 46, § 25, is not the same as the return in cases of trustee and bail.