Volume 61 — Maine Reports

ON REPORT. This action of assumpsit was originally brought in the names of Ammon Platt and Peter O. Strang, as surviving partners of the firm of George W. Ryley & Co., by writ dated July 12, 1869. Subsequently to that date, Platt died, and his death was suggested on the docket of January term, 1871. The cause came on for trial at the April term, 1871.

ON REPORT. This is an action of assumpsit, commenced by writ dated Dec. 15, 1870, containing two counts ; the first special, declaring upon votes of the town of Durham, the effect of which was that $500 was voted to be paid to each man mustered into the service of the United States, and credited upon the town’s quota, for three years, the selectmen to hire the money to pay this bounty upon the credit of the town; the second count was for money had and received.

<p>ON EXCEPTIONS.</p> <p>Assumpsit. The action was commenced Dec. 1, 1871, by writ issued out of the municipal court for the city of Lewiston, returnable to its January, 1872, term, and was then entered therein. The plaintiff resided in Lisbon, Androscoggin county, and White at Topsham, in Sagadahoc county. The ad damnum was thirty dollars. The balance claimed as due on the account annexed was $17.93. The action was tried before that court, and judgment rendered for the defendant for $17.38, upon a set-off filed by him. The plaintiff appealed to this court and obtained a verdict for $16.43. The defendant then claimed that only quarter costs should be taxed, but the presiding justice ruled otherwise, and defendant excepted.</p> <p>The municipal court for the city of Lewiston was established by act approved February 17, 1871, Private and Special Laws of 1871, c. 636. It was granted concurrent jurisdiction with the supreme judicial court over all civil actions where the debt or damages demanded did not exceed $100, and either party resided in Androscoggin county. The plaintiff claimed a less sum than $20, as debt, although his ad damnum was set at $30. This was done to oust the jurisdiction of the courts of Sagadahoc county, in which it should have been brought. The verdict settles the amount for which the suit was brought. Ilervey v. Bangs, 53 Maine, 514. This did not result from the set-off, for the plaintiff claimed less than twenty dollars as due him. Hence, only entitled to one-quarter costs. R. S., c. 82, § 107. By laws of 1872, c. 157, the jurisdiction of the municipal court was confined to Androscoggin county ; there is no exception of pending cases. This act coming between the taking of the appeal and its entry in the appellate court, abates the action. Nor does it make any difference that the cause went to trial in the supreme court, since “ consent cannot give jurisdiction.” Hatch v. Allen, 27 Maine, 95 ; Clark v. Connecticut, 1 Munf. 160; Fitzgerald v. Beebe, 2 Eng. 305.</p>

ON EXCEPTIONS. This is a complaint for flowage of complainant’s land in Webster, caused by the erection of a dam, in 1869, by the defendants, on Sabattus river.

ON EXCEPTIONS. Debt on poor debtor’s bond. Plea, the general issue, with a brief statement of performance of conditions, according to Chap. 113 of the Revised Statutes, and a counter brief statement denying such performance. Betsy Lane seasonably cited the plaintiff to attend her disclosure, and procured the attendance of a magistrate. Hackett was present at the time and place designated, but declined to select any justice to act in the premises.

Bill IN equity to obtain an adjustment of partnership accounts. First heard on demurrer; see 53 Maine, 110. Subsequently all the defendants appeared, and all but Rokes allowed the bill to be taken fro confesso. He filed his answer, and the cause was heard on bill, answer, and replication. The facts are stated in the opinion. submitted to the bill, filing no answer.

Motion foii new teial and Exception. Assumpsit on an account for hay ; plea, the general issue. The plaintiff testified that he met Mr. Libby on board of the cars and agreed to sell him this hay ; that the plaintiff was to haul the hay to Freeport depot and get twenty-five dollars a ton for it; “ he (Libby) was to press the hay, and furnish press, and pay me twenty-five dollars a ton, and I was to haul it to Freeport.

Bill in equity, beard on bill, answer and proofs. The bill alleges substantially, that on Nov. 5, 1850, the complainant was married to Lewis Dela, who died June 12, 1861; that at the time of marriage her husband owned the right in equity to redeem certain land on the north-westerly corner of Fore and India streets, in Portland, from a mortgage of one-half of said land in common and undivided, given by his father, John Dela, to Josiah Pennell, Oct. 23, 1844, to secure a note…

Ok EXCEPTIONS to the ruling of Goddard, J., of the superior court. The respondent was indicted for the murder of one Patrick Murray, at Portland, on the third day of September, 1869, by throwing him down the stairs of the defenclfin^s hotel, where the deceased had created a disturbance, persisting in attempts to enter the rooms of some female guests of the house and resisting removal.

Bill IN equity. Heard on bill, answer and proofs. The complainant, as appears from1 the statement of facts contained in the opinion, was the beneficiary of trust funds under a marriage settlement, the terms of which, so far as necessary to an understanding of the issue, are stated by the court.

MotioN por NEW trial, because the verdict for the plaintiff was against law and evidence and the weight of evidence in the cause. The amount of the verdict was $1,202.48.

<p> Poor debtor’s bond. </p> <p>A poor debtor’s bond, approved by two justices not selected agreeably to B. S., c. 113, §§ 24, 42, is only good at common law.</p> <p>It is a compliance with the conditions of such a bond to take the oath mentioned therein, though this differ from the one that poor debtors are required to take under the statutes in force at the time it is administered.</p> <p>If such bond provide for notice to the creditors of debtor’s disclosure, but fail to state how it shall be given, service upon one of the creditors is sufficient.</p> <p>No appraisal of demands, disclosed upon a disclosure under a common-law bond, is necessary, unless required by the terms of the obligation.</p> <p>The record of the justices hearing such a disclosure held sufficient, though not showing that they were disinterested, or why the creditor did not select one of them, nor where they met, nor that any disclosure wras had.</p>

On REPORT from the superior court of Cumberland county. As this court declined to act upon the report, any statement of facts other than that contained in the dissenting opinion is unnecessary.

<p> Will, construction of. When real estate is to he applied inpayment of debts. </p> <p>Ordinarily, the personal estate of a decedent is to be first applied in payment of his debts before resort is had to the realty; but real estate may be sold for this purpose without having used any part of the personal, where this course is evidently necessary in order to carry out the intent of' the testator, as gathered from the whole of his will, though such sale be not expressly directed by any of its particular provisions.</p>

O.N EXCEPTIONS to tho ruling of Goddard, J., of the superior court of this county. Assumpsit, to recover $872 paid defendant under mistake of facts. Plaintiffs were indorsers of a note by them transferred to defendant, which, at the time of such transfer was signed thus: “ John T. Hull, Treasurer of St. Paul’s Parish.” Some time after its purchase by defendant, but before its maturity, Mr. Hull called at defendant’s office and asked to see the note, which was handed him.

Bill in equity. This is an amicable bill brought to obtain a construction of the will of late J. Ignatius Stevens, by his widow and administra-trix, with the will annexed, the executor named therein… Held: the court will advise and instruct her how much may be so applied, and what part of the capital of the estate may be set aside and held as a trust fund to supply the means of defraying such charges ? 6.

On report. Asscjmpsit, to which the general issue was pleaded, on a contract of which the following is a copy: “ Whereas, Stephen A. Emery and Frederic H. Prince have this day conveyed to Thomas Richardson two third parts, being all their remaining interest in a certain invention, entitled ‘A Safety Switch for preventing Railroad Cars and Engines from running off their tracks,’ and in and to the letters patent issued therefor, dated (No. 53,593) the third day of April, a. D.…

<p> Costs. </p> <p>An heir-at-law appealing from the allowance of a claim by commissioners of insolvency, nncler R. S., c. 66, § 11, is liable to have costs awarded against him if the creditor recover, though the amount finally allowed may be less than that awarded by the commissioners.</p> <p>In such case the claimant is the prevailing party.</p>

ON exception»- to the ruling of the justice of the superior court for this county-. This is an action of trespass quare clausum, commenced by writ dated June 13,1871. Plea, general issue., with a brief statement of justification and title in the defendant. The plaintiff put in a deed of the locus in quo, dated and recorded Nov. 19,1866, proved the acts alleged to be trespass, and stopped.

On exceptions to the ruling of the justice. This was an action against the defendant, a deputy sheriff, for trespass in so negligently caring for certain plants attached by him upon a writ in favor of Warren Sparrow, that they were greatly injured. Sparrow had a mortgage of part of the plaintiff’s stock of plants and shrubs, etc., in his green-house, and one Deer-ing also had a mortgage of a portion of the same property.

On EXCEPTIONS. Assumpsit to recover for land sold by defendant, the title to which he held in trust for plaintiff. That the defendant originally acquired an interest in the premises, to be held for some period in trust, either for the plaintiff or for his father (Bradbury Rand), was not denied, though it was contended the trust had determined and the estate become absolute in Nesmith.

<p>Indictment against defendant corporation for causing the death of one David P. Pullen. The only essential fact is stated in the opinion. A verdict had been rendered against the company and a motion for new trial filed.</p>

On Exceptions to the rulings of Symonds, J., of the superior court.

On report. The plaintiff sues the defendants to'recover pay for building a meeting-house in Phillips, under a contract executed by him and them, entitled, “ Agreement between Enoch Winship, contractor, and the building committee.” The opening clause is: “ I, Enoch Winship, of Phillips, do hereby agree, covenant, and bargain with the trustees and building committee of the new Methodist church society of Phillips, viz.: That I will construct and complete a meeting-house for…

ON DEMURRER. Action on the case, alleging that the plaintiff had a large number of logs in Mooselukmaguntic and Richardson lakes and waters connected therewith, which were to be driven across those lakes and into the Androscoggin river; that he had arranged with the Richardson Lake Dam Company to hold back sufficient water to enable him to conveniently float his drive until it should reach the dams of that company at the outlets of these lakes; and that the defendant…

<p>Bond on review — forfeiture of.</p> <p>After denial of a petition for review, suit can be maintained on a bond filed with such petition, given to obtain stay of execution on the judgment recovered in the action sought to be reviewed; although, before suit brought, a new petition to review such action, and a new bond for the same purpose as the previous one had been filed, and 'a stay of execution ordered.</p>

On exceptions. Action of debt upon a judgment of the superior court of Middle-sex county, Massachusetts, in favor of McKenzie against Ward-well, for $21.50 debt and $14.84 costs, entered up October 21, 1861.

ON EXCEPTIONS. The case sufficiently appears by the opinions. The building is personal property, for which trover is maintainable. Osgood v. Howard, 6 Maine, 452; Bussell v. Richards, 10 Maine, 429, and 11 Maine, 371; Hillborn v. Brown, 12 Maine, 162. There was an absolute sale of the property, and the provision- for its removal was an independent stipulation. Haines v. Hayward, 41 Maine, 488. Title did not revest after time fixed for removal expired.

This was an action of trespass against the sheriff of Cumberland county for the alleged misfeasance of his deputy in attaching twenty tons of superphosphate as the property of the firm of Whitehouse & Goodwin, July 22, 1869, on a writ in favor of Wattson and Clark, sued out upon an indebtedness of $0,833.00, of which $5,200.00 were due upon a note given'to Wattson & Clark, which matured upon the 18th day of June, 1869.

Bill in equity, heard on bill, answers and proof. The bill is brought to obtain a conveyance of certain property in York in which Mclntire claims to have an equitable interest; the record title being in Joseph S. Grant, one of the defendants, who received it from Bowden and Francis Plaisted, the other defendants.

<p> Liability of stockholders. </p> <p>Holders of stock in a bank 'when its charter expires, are liable, under, B. S. of 1857, c. 47, § 46, to contribute for the redemption and payment of all bills issued by the bank,’ and remaining unpaid, in the proportion that the number of shares 'held by them respectively bears to the aggregate number of shares held by all the stockholders.</p> <p>Under that statute the charter of a bank expires by operation of law when an injunction restraining it from doing business is made perpetual.</p> <p>A provision in the by-laws of a bank that its “shares shall be transferable by in-dorsement in writing by the holder in presence of the cashier or two other witnesses,” requires that the cashier or two other witnesses shall in writing attest the signature of the holder in order to render the transfer valid between the parties.</p> <p>Such provision is consistent with the laws of the State and the charter of the Sanford Bank.</p>

ON EXCEPTIONS. Tlie facts sufficiently appear in the opinion. I. The record was inadmissible, because : 1. There must be antecedent proof of the identity of the parties and of the examination. 1 Greenl. on Ev. §§ 520, 224; Com. v. French, Thacker’s Grim. Cases, 82; Starkie on Ev. 3,24 (Sharswood) ; 2 Russ, on Crimes, 659; Com. v. Briggs, 5 Pick. 429 ; 3 Dane’s Ab. 388. Identity of parties must be proved to render even a marriage record admissible. Reg. v. Hawes, 1 Den. Grim.

ON EXCEPTIONS. IndictmeNT for tbe murder of Anethe M. Christensen, on the sixth day of March, 1872, “at an island called ‘Smutty Nose,’ a place within the county of York.” This island is one of the cluster of islets known as the Isles of Shoals ; part of the group lying in Maine, and part in New Hampshire.

<p> Evidence as to damages to horse by~ defective way. </p> <p>In an action for injury to plaintiff’s horse t>y reason of defect in a way the defendants are hound to keep in repair, testimony as to the value of the horse Reforo and after the accident is admissible.</p> <p>If the injury is alleged to have caused lameness, the condition of the horse and of his logs within a week after the occurrence is material, and testimony relative thereto should be admitted.</p> <p>Where it is alleged that a horse, sound, safe, and kind before receiving an injury by breaking through a bridge, was by that accident rendered unsound and so timid as to be unsafe and unkind, testimony as to the conduct of the horse in crossing bridges immediately before and after the accident — and any other direct evidence of the facts alleged — is admissible.</p>

<p>ON REPORT.</p> <p>February 10, 1869, the plaintiff brought this action to recover certain land in Augusta, claimed by the defendant under a tax-deed from the city. She derived her title thus : Elias Craig, then owning the estate, conveyed it Nov. 4, 1861, to Louisa Emerson, who, by her last will executed March 27, 1866, and admitted to probate the fourth Tuesday of the following May, devised it, under the residuary clause of that instrument, in these . words : “ I give and bequeath all the residue of my property both real and personal to Orrin Emerson, jr., of Bath, in the county of Sagada-hoc, and his heirs, in trust for my husband and his father, Orrin Emerson, senior, during his life, remainder to my children in equal proportions. It is my wish that my said husband should have the management and control of all my said property while he lives, the title in the meantime to be in the said trustee as before provided. I also give power and authority to said trustee to sell any and all of said property at such times and prices as his father may deem best, and to give good and sufficient conveyances, the proceeds to go to my said husband for the benefit of himself and my children, — to be used by him for their benefit.” . . . “ I appoint the said Orrin Emerson, jr., sole executor of this will.”</p> <p>Orrin Emerson, jr., accepted this trust and gave bond for its .faithful discharge, but did not give the bond required of testamentary trustees. Sept. 24, 1867, Orrin Emerson, senior, the cestui que trust under the will, and Orrin Emerson, junior, reciting that he was acting in his capacity of executor, conveyed the demanded premises to Lorena Emerson French, the plaintiff; and this was the title upon which she rested her claim thereto. To overcome it the defendant put in deeds from Louisa Emerson to Henry K. Chadwick of fifteen acres, and from her to Oliver Chase of another small lot, both these pieces of land being parcel of the tract conveyed to her by Craig; but Patterson derived no title to himself from Chadwick or Chase. He introduced, however, as covering the rest of the Craig lot, and all of the demanded premises-, the records of the assessment of a tax thereon for the year 1864, and of the proceedings for its collection by a sale of the land. The only objections.to these proceedings considered by the court were to the descriptions of the assessed land in the assessment list, advertisement and deed thereof, and to the course pursued by the .treasurer in making sale of it; and it will be unnecessary to make a statement of the other papers connected with the case. In the list of “non-resident taxes in Augusta for 1866,” under the proper columns for the “ names of the persons taxed, No. of lot, No. of range, school-district, No. of division, or description of range, etc., if known, value, amount of tax,” appeared this entry: “ Orrin Emerson of Pittston, or owner unknown, range 4, school-district 17, about 175 acres land, part of Craig lot, value $875, amount of tax, $15.98.” In the advertisement the lot was described as owned by “ Orrin Emerson or unknown, about 175 acres, part of Craig lot,” with the value and tax as stated in the assessment. The treasurer advertised that he should sell “ so much' of the real estate taxed as will be sufficient to pay the amount 'due therefor including interest and charges.” In his record of the sale he says : “ I proceeded to sell, according to the tenor of the advertisement the estates upon which the taxes so assessed remained unpaid, and in the schedule following is set forth each parcel of the estate so. offered for sale and the amount of the taxes, interest, and charges for which it was sold, the'quantity sold and the names of the purchasers. The city authorized Charles E. Hayward to bid the amount due for taxes, etc., upon the lands sold, and its treasurer for this sum conveyed it to the city of Augusta and the city subsequently conveyed it to the defendant. The description in the deed from the treasurer to the city was: “About 175 acres of land in 4th range east of river, being a part of Craig lot south of Thomas-ton road.” The court was authorized to enter such judgment as the nature of the case required.</p> <p>Our title of record is perfect. The tax-title set up in defense must fail because the description in the assessment is insufficient; altogether too indefinite and uncertain. Craig’s deed conveyed to Louisa Emerson more than three hundred acres; one parcel containing that number and the other an unmentioned quantity. The fifteen acres she sold to Chadwick, as appears by the deeds put in by defendant, were south of the Thomaston road, and those sold to Chase were north of that road. It is impossible, then, to tell what part of the Craig lot was embraced in the lands advertised and sold. The record of sale does not show that the land was sold to the highest bidder or to him who would pay the tax, interest, and charges for the least quantity of land. This defect is fatal. Lovejoy v. hunt, 48 Maine, 377. The advertisement, the only notice given the owner and the public of what was to be sold, was not like the record of sale or the deed, in its description of the premises.</p> <p>The deed of Orrin Emerson, senior, if executed by him alone, would convey his right to manage and control the estate and his life.interest therein and be sufficient to enable the plaintiff to maintain this suit. Orrin Emerson, jr., held a mere dry, naked trust with no interest in the property. Then under the Statutes of Uses, 27 Henry VIII, c. 10, which is part of our common law, the legal estate was transferred to the cestui que use the instant the will was approved, and vested the whole estate in him. 1 Green-leaf’s Cruise (ed. of 1849), 349, Tit. 11, c. 3; Hayes v. Tabor, 41 N. H. 521; Northampton Bit v. Whiting, 12 Mass. 108; Thatcher v. Omans, 3 Pick. 521; Morgan v. Moore, 3 Gray, 323; Johnson v. Johnson, 7 Allen, 197; 4 Kent’s Com. 294; Bowman v. Long, 26 Geo. 142 ; Adams v. Guerard, 29 Geo. 651; Saunders on Uses, 85, 98.</p> <p>The description of the property in the assessment roll was all that could be reasonably required and was sufficient; and it agrees substantially with that in the subsequent documents. There has been no suqh tender of the taxes, &c., due as the law requires; the one made was not by nor to the proper person, nor of a sufficient sum.</p> <p>Orrin Emerson, jr., had no right to convey. He had obtained no license from probate court to do so, nor was this sale necessary to pay debts; nor could he convey as testamentary trustee, since he had given no bond in that capacity. Groton, Judge v. Buggies, 17 Maine, 137 ; R. S. c. 68, § 1.</p>

Ok exceptions. Upon the petition of Edward Peacock of Farmingdale, in Ken-nebec county, uncle of Mary E. Peacock, who was stated in the petition to be “ aged two years, now resident of Farmingdale, in said county, minor child of Solomon E. Peacock late of the city of New York, deceased, and of Evelyn C. Peacock, now of said city of New York,” that gentleman, signing as “ nearest of kin in this State,” was appointed guardian of said Mary by the judge of probate of Kennebec…

ON REPORT. Scire facias against Lorenzo D. Cooke as trustee of Barker A. Neal. The disclosure of this defendant shows that he and Barker A. Neal made, some time before, a joint purchase of $7,000 worth of cigars, for which they paid down $1,000 each, and gave a note for $5,000, of which Cooke afterward paid the whole, thus leaving an indebtedness from Neal to him of $2,500.

<p> License to cut growth may he inferred. Evidence. </p> <p>License to cut wood and timber may be-verbal or it may be inferred from circumstances.</p> <p>The defendant in an action of trespass guare clausum relied upon a power of attorney given him by plaintiff. The plaintiff claimed that a previous power to his brother had been revoked and this one given to his father (the defendant) by reason of false representations contained in letters from several persons, to the effect that his brother was trying to swindle his father out of all his property: that Ms father was destitute, and that plaintiff had better put the real estate into Ms father’s hands; held, that testimony relative to the peeuniary circumstances of the father at the time these letters were written was properly rejected.</p> <p>“On exceptions, the court will not consider the findings of the jury as to whether the verdict is or is not against the weight of evidence.”</p>

ON EXCEPTIONS. Assumpsit to recover fifty dollars, alleged to have been paid under threats of personal injury and of criminal prosecution. The parties formerly owned a mill together, the plaintiff owning three-fourths and the defendant one-fourth. In the fall of 1869 the mill was burned, and the plaintiff collected $800.00, insured thereon ; of this sum the defendant claimed one-quarter as being upon his interest.

On exceptions. The libel in this case was filed at the October term, 1870, and thence continued to the October term, 1872, when it was dismissed on motion of the libelant’s attorney, no decree for costs being made. The libelee’s attorney claimed costs and presented his taxation, but the clerk refused to allow them, and on appeal to the presiding justice he also held that the libelee was not entitled to costs under these circumstances. The libelee excepted.

ON EXCEPTIONS. The writ in this case, dated June 20, ] 871, contained two counts upon slanderous words, alleged to have been spoken by the defendant concerning the female plaintiff. Those specified as intended to be covered by the second count, which was general, are all to which the exceptions relate.

<p>Commissioners under R. S., c. 64 § 54 — report of.</p> <p>It is a sufficient compliance with the provisions of R. S., c. 82, § 131, requiring a certified copy of the commissioner’s report to be filed before making an applies tion for execution, if the order of acceptance by the probate court, referring to and making the report a part of the order, be certified.</p> <p>If the report of commissioners under R. S., c. 64, § 51, declares that they acted “pursuant to the annexed commission,” it need not appear affirmatively that they notified the parties, or otherwise complied with the directions contained in the commission, or required by statute.</p> <p>If such requirements were in fact complied with, and the report omitted to show it, the defect might be cured by amendment The phrase “after their report is made ” used in R. S., c. 66, § 11, means after their report has been returned and finally accepted, as in R. S., c. 82, § 131.</p> <p>The creditor can resort to the process provided in R. S., c. 82, § 131, when an executor has entered an appeal from the report of the commissioners, but has failed to complete it by giving the requisite notice.</p>

On PACTS AGREED. Assumpsit against tbe defendant as indorser of the following promissory note, his signature admitted to be genuine. “ $150.00. April 8, 1871. Four months after date I promise to pay to the order of A. J. Crowell one hundred and fifty dollars. Value received. H. E. Morton.” Endorsed, “ A. J. Crowell, Jeremiah Glidden, C. H. Glidden.” Writ dated Feb. 17, 1872. Plea, general issue.

ON REPORT. ACTION on account annexed for board of defendant’s wife for the thirty-eight weeks next preceding the rendition of a decree of divorce obtained, upon her libel against him, on the twelfth day of March, 1869. It was agreed to reckon it at $3.00 per week, and that if the plaintiff, upon the evidence, was entitled to recover at all, judgment was to be entered in bis favor for $114.00 and interest from tbe date of the writ.

ON exceptions and motion to set aside the verdict as against the law and the evidence. This was an action of trover, tried at the September term,T871. Plea, not guilty, with a brief statement denying plaintiff’s ownership of the chattels named in the writ, and setting up a conveyance of them long before suit brought to Joseph Candage & Company.

<p>ON exceptions and motion for new trial.</p> <p>Cáse for injury received by the plaintiff March 19, 1872, by reason of a defective highway in Camden, which the defendants were bound to keep in repair. The defect consisted of snowdrifts that had blown in and filled the road, and had become compact and dangerous. The plaintiff vras driving a hearse along this way when the fore part of the vehicle settled and pitched him out into the snow in such a manner as to severely strain his right leg and knee and otherwise injure him. The declaration contained no allegation that the carriage was suitable and safe, and it was not specifically stated, in terms, that the accident was solely occasioned by the want of repair of the.way. The defendants went to trial on the general issue, and after the testimony was closed contended that the declaration was insufficient to sustain a verdict for the reasons above stated; but the justice presiding ruled that the objection was not made in the proper time and manner to avail the defendants. The evidence relating to the other point determined in the case is sufficiently stated in the opinion. The testimony was voluminous and other objections were made during the trial, but the foregoing are all which the decision of the court fully discusses. The jury rendered a verdict of $425.83 for the plaintiff, and the defendants excepted.</p>

On EXCEPTIONS. This action is based upon a policy of insurance upon schooner Abby Brackett, issued by the defendant company to one E. K. Alexander, “ on account of whom it may concern,” loss (if any) payable to him. The plaintiff claimed that the policy was procured by Alexander for bis (Sleeper’s) benefit.

TRESPASS quare clausum. MotioN for new TRIAL by the plaintiff, who alleges that the verdict against him was not in accordance with the law and the evidence.

On exceptions. The facts sufficiently appear in the opinion. 1. A plea of tender is an issuable plea in bar, and may be pleaded after a general imparlance. Kilwieh v. Maidman, 1 Burrows, 59; Moore v. Smith, 1 H. B. 869; 3 Cliitty on PI. 922 ; 2 H. B. 442. , In this State there is no distinction as to time of pleading a tender and any other plea in bar; but subject to Rule VII, it may be pleaded at any time before trial. II. S. of 1871, c. 77, § 3; Hule VIII.

<p>Voluntary conveyance by intestate — void as to amount of debts due from Mm,</p> <p>The administrator o£ an insolvent estate, in an action for money had and received, may recover for money given by Ms intestate after he became insolvent without a valuable consideration.</p> <p>As such gift is valid as against the heirs of the giver, the donee is entitled to alt over the amount required for the payment of debts and expenses of administration.</p> <p>It is for the administrator to show the amount of such debts and expenses, and ho is entitled to recover only that amount.</p> <p>Plaintiffs attorney may administer the oath required by K. S., c. 113, § 2, to authorize the arrest of the defendant.</p>

On exceptions. This was a petition for an increase of damages in the form and words following; “ To the court of county commissioners for the county of Lincoln : Your petitioner respectfully represents, that he is aggrieved by your estimation of damages for his real estate taken by the Knox & Lincoln Railroad Company, as reported at your September session, 1870.

ON EXCEPTIONS. Each of these petitions were for an increase of the sums allowed to the respective petitioners, by the county commissioners, as damages for their lands taken for the location of the Knox & Lincoln Railroad, upon which a hearing was had before a jury, agreeably to R. S., c. 18.

On exceptions. This is an action for the recovery of damages for an injury to the female plaintiff, Amanda M. Colby, wife of the other plaintiff, occasioned by want of repair in a public highway in the town of Wiscasset, sustained February 17,1871.

<p> Trespass de bonis by executor. JSoidence. </p> <p>An action of trepass de bonis to recover for timber and trees cut from land mortgaged is properly brought by the executor of the deceased mortgagee for the benefit of the person beneficially interested under the "will, if the severance was before the death of the mortgagee.</p> <p>The defendants in this action justified the removal of the growth from the real estate mortgaged, by virtue of an alleged parol license from the deceased mortgagee, and called a witness who testified to two conversations in the course of which such license was given. Upon cross-examination this witness added that she made a memorandum of those conversations at the time each occurred and produced them, and they were put into the case by the plaintiffs: held, that they were properly received as tests of the accuracy of the witness’ recollection of the conversations, and of the degree of credibility to be attached to her testimony.</p> <p>To afford ground of exception the testimony admitted must be of such a nature as to work prejudice to the excepting party.</p> <p>Exceptions will not lie to the admission of a written memorandum of a conversation which the witness has detailed upon direct examination, when such memorandum is elicited and introduced upon cross-examination.</p> <p>In this action the executor not becoming a witness, the defendants were precluded from testifying.</p> <p>Declarations of the plaintiff, made before bis appointment as executor, held inadmissible.</p> <p>Evidence of the entry of “neither party” in a suit between the plaintiff, in his fiduciary capacity, and the person under whom defendants claim, and that such suit was for the same cause of action as the present, is inadmissible.</p>

<p>Bill IN equity.</p> <p>This was a bill of complaint in equity, brought by Elias Milli-ken, of Augusta, to redeem certain real estate in Phipsburg from a mortgage thereof, and for an account of tbe sum actually and justly due under sucli mortgage. The cause was heard upon bill, answers, and proof, from which it appeared that the land was formerly owned by one Samuel D. Reed who, on the ninth day of June, 1864, mortgaged it in the sum of $500 to Mrs. Sarah J. B. Davis, one of the defendants; from which mortgage the complainant desired to redeem the estate by these proceedings. On tlie last day of December, 1868, Mrs. Davis sold, transferred, and assigned this mortgage to her father, Bernard C. Bailey, the other respondent. Before making this assignment, however, to wit, on the fourth day of June, 1868, Mrs. Davis had entered peaceably and taken possession of the premises in order to foreclose her mortgage for breach of its condition. Upon the seventh day of June, 1867, the complainant purchased at a sheriff’s sale thereof, on an execution in favor of Elbridge Berry and another against Samuel D- Reed, all said Reed’s right to redeem the premises; and upon the fifth day of July, 1869, in accordance with the requirements of the statute in this behalf, demanded of these defendants an account of the balance justly due upon this mortgage after deducting the rents and profits. Deeming the account rendered him incorrect he brought this bill to redeem, filed Nov. 17, 1869. In describing the real estate in his hill the complainant followed the language of the sheriff’s return on the execution aforesaid, and of the sheriff’s deed to him; in which there were mistakes in the names of two of the proprietors of premises adjoining the land in question; and omitted to state the easterly boundary of one of the parcels; but there appeared to be no doubt what land was intended to be designated.</p> <p>Reed’s equity of redemption was taken upon said execution on the tenth day of April, 1867, and advertised to be sold on the first day of the following June, but on the day last-named the sale was adjourned, as the officer "stated in his original return, “ for the want of bidders, to the seventh day of June then current, at the same place ; ” but no hour was specified, nor did he say that he gave any notice or public proclamation of such adjournment; nor that the same was had because it was for the interest of all concerned, unless that may be inferred from “ the want of bidders.” This original return began thus: “ Sagadahoc, ss. April 10, a. d. 1867. By virtue of the within execution I have taken all the right in equity that the within-named debtor had on the twentieth day of' September, 1866, at nine o’clock in the forenoon, being the ■time of the attachment of the same on the original writ, to redeem a certain tract of land,” etc., etc. The attachment on said writ was, in fact, made September 28,1864, which was the day the writ bore date; and on the twelfth day of October, 1864, Reed made a second mortgage of the property for $1,000, to Samuel I. Robinson, whose representative sold, transferred, and assigned the same to B. C. Bailey,, the defendant, on the twenty-seventh day of May, 1868; and Bailey entered to foreclose this mortgage on the fourth day of June, 1868, — the same day his daughter entered to foreclose the one to her.</p> <p>Subsequently to the filing of the general replication in this cause the deputy-sheriff who sold Reed’s equity of redemption as aforesaid, petitioned for leave to amend his return as to the year of the attachment on the original writ, and the facts relative to the adjournment of the sale ; and on the eighteenth day of August, 1870, by the supreme judicial court then sitting in Sagadahoc county, “ permission is granted to the petitioning officer to amend his return according to the facts, saving all rights of intervening third partiés.” Accordingly the officer did amend by inserting 1864 instead of 1866, as the year of the original attachment on the writ, but did not change the day of the month from the twentieth to the twenty-eighth; this error remained uncorrected. He also stated the hour to which he adjourned the sale, and that the adjournment was made by public proclamation. Though the return upon the original writ was entitled as of Sagadahoc county, it slated that the deputy had attached all the defendant’s interest in any and all real estate in the county of Kennebec. This error arose from the suit of Berry v. Meed being brought in the latter county, while Reed resided in the former. This error was never corrected. In the account of the expenses and charges arising under the Davis mortgage, was an item for advertising foreclosure and the taxes for 1868 and 1869, which are estimated t» be the same as previous years. These taxes, for the two years specified, the mortgagee says have not been paid but will have to be to prevent a sale of the land. The respondent, Bailey, claimed to hold the estate under both of the mortgages assigned to him, and denied complainant’s right to redeem from the Davis mortgage, which was all that he sought by his bill, without also redeeming from the Robinson mortgage. Mrs. Davis denied that any account had ever been demanded of her or that she was liable to account, since she had assigned all her interest as aforesaid, Dec. 31, 1868, before said alleged demand. The defendants also denied complainant’s right to redeem said estate at all, claiming that he derived no title under his deed from the sheriff and the proceedings upon the Berry execution.</p> <p>The officer’s return, if originally defective, was amendable and has been amended ; this amendment cannot prejudice the defendants, since it can make no difference to them whether the right oi redeeming is in Milliken or Reed.</p> <p>The defendants deny the complainant’s right to redeem from this mortgage; or that he can maintain this bill even if he have the right of redemption. The bill was served Nov. 20, 1869; the answers denying his title were filed Feb. 9,1870; and the general replication at the April term, 1870. The plaintiff then had no title, because in the officer’s sale to him, the requirements of the statute, which should be strictly followed, were utterly disregarded. Pratt v. Sholfield, 45 Maine, 386; Stinson v. Boss, 51 Maine, 556. .</p> <p>All the officer pretended to sell was Reed’s right taken by attachment Sept. 20, 1866 ; if none were then attached; still more, if it were never attached, he sold and conveyed nothing to Milli-ken. The officer’s return on the Berry execution is grossly defective. If the amendment has any force against us, it is not retroactive. If Mr. Millikan had no title till after he brought his bill, then his prior demand was nugatory because made by one having then no interest in the estate, and it cannot support this proceeding.</p> <p>Certainly, the amendment cannot affect the Robinson mortgage now held by Mr. Bailey.</p> <p>When this bill was brought against her, Mrs. Davis had no interest in the estate. Hilton v. Lothrop, 46 Maine, 297.</p> <p>She denies that any demand was ever made on her, and such is the proof. The' mere fact that she had taken formal possession in order to foreclose does not imply that she received anything from the land. Bailey v. Myrick, 52 Maine, 132.</p> <p>The complainant must redeem both mortgages, if either. If he only redeem the Davis mortgage the foreclosure under the Robinson mortgage will be perfected.</p> <p>At the time of the sale on execution, June 7, 1869, Mr. Reed had no right to redeem from the Davis mortgage, since he had already sold that right to Mr. Robinson by his mortgage to that gentleman. His right at the time of that sale was simply of redeeming from the Robinson mortgage; and that was all that passed by the sale.' Thompson v. Chandler, 7 Maine, 377. But this right was neither attached nor sold. Palmer v. Fowler, 5 Gray, 545. In fact, there was no legal sale of any right. Smith v. Bow, 51 Maine, 21. And no interest to authorize any demand for an account.</p> <p>The Robinson mortgage has nothing to do with this case ; we do not now ask to redeem from that.</p> <p>The amendment takes effect from the date of the original proceedings.</p>

<p> Sale. </p> <p>The plaintiff caused to he attached certain cigars and tobacco upon two suits against one Tinker, and was made keeper.of the goods by the defendant, who was the officer making the attachment. It was after-ward agreed between Tinker and the plaintiff that plaintiff should have the property and that Tinker should act as his agent and sell it on plaintiff’s account. The cigars were not counted, nor the tobacco weighed, nor any price for them fixed upon, nor any credit given Tinker for them upon his debts to plaintiff. The plaintiff discontinued his suits, whereupon the property was attached as Tinker’s at the suit of other parties. Held, that the transaction did not constitute a sale, and that plaintiff could not maintain replevin against the attaching officer.</p>

<p>On REPORT.</p> <p>Assumpsit on account annexed for $74.18, commissions on renewals of insurance policies from July 3, 1870, to September 18th of the same year. On the 27th day of July, 1866, the plaintiff received an appointment as agent of the defendant company. The agency was terminated on the first day of July, 1870, and the plaintiff brings this action to recover for commissions, upon renewals paid after the termination of his cured by him while acting as agent. The plaintiff did not collect nor remit the premiums upon which he seeks to recover commissions.</p> <p>Among the rules of the company are the following :</p> <p>“ 10. The commission to agents is 10 per cent on first year’s premium and 5 per cent on each renewal collected and remitted by them. This applies to business procured by the agent under this appointment. Upon the collection of other premiums (the risk being originally obtained by other parties) and upon interest, the commission is 2i per cent. . . .”</p> <p>“ 21. This appointment is revocable at the pleasure of the company, and can be terminated in like manner by the agent.”</p> <p>J. R. Dean, a witness called by the plaintiff, testified that he was General Agent of the Continental Life Insurance Co. ; that so far as he knew it was the usual custom, if agents receive a commission upon premiums after the first year, they receive it ever after, as long as the renewals are paid, unless they are discharged for misconduct.</p> <p>M. L. Stevens, also called by the plaintiff, testified that he was General Agent of the North American Life Insurance Co.; that in all general contracts it was understood that a commission upon future premiums was a part of the compensation for doing the work, and that so far as his knowledge, observation, and experience went, agents had always received that renewal commission as long as the policies were in existence.</p> <p>Win. H. Beers, Vice-president and Actuary of the defendant company, stated in his deposition that agents were to receive five per cent for collecting and remitting renewals only during the continuance of the agency.</p> <p>The defendant corporation agreed to a default, which was to stand, and plaintiff to have judgment for the amount of his bill, if the action was maintainable; otherwise, the default to be taken noff and the plaintiff to become nonsuit.</p>

<p> Practice. Seview. Writ not to be sued out till after final judgment upon the petition. </p> <p>The writ of review should not he sued out until the record upon the petition therefor is closed.</p> <p>Case between same parties, 59 Maine Reports, 155, affirmed.</p>

Bill IN review IN equity. At the December term of court in this county, in 1857, this complainant commenced proceedings by bill in equity against William D. Crooker and others, alleging in the bill that in the year 1826 lie formed an equal partnership with William D. Crook-er, under the name and style of C. & W. D. Crooker; that until the dissolution of this partnership on the 19th day of June, 1864, they were from time to time engaged in the buying and selling of…

Ox EXCEPTIONS and motion for a new trial, on the ground that the verdict was against the evidence and the law, and that the jury were influenced by partiality and prejudice against the plaintiff. This was assumpsit upon an alleged guaranty for the payment of five notes dated New York, February 18, 1869, payable in four, five, six, seven, and eight months, respectively, signed by H. H. Thompson, payable to his order and indorsed by him.

On REPORT. The agreement was that upon tlie report tlie court sliould make such disposition of the case as law and evidence required.

On exceptions. This was an action of forcible entry and detainer, which was originally commenced before the municipal court for the city of -Bath. The defendant appeared and filed a brief statement, alleging title to the premises described in the plaintiff’s writ in one Urana F. Bailey, the present wife of the defendant, whereupon the case was transferred to this court according to the statute. The writ was dated May 21, 1872.

ON EXCEPTIONS and MOTION to set aside the verdict as against the law and the evidence. Wbit oe entry, returnable to the supreme judicial court for this county, August term, A. 1). 1871. At the trial, had at the August term, 1872, the tenant pleaded the general issue with a brief statement of a proscriptive right of way over a portion of the demanded premises, and also another brief statement disclaiming any title to soil and freehold in the land in controversy.

On EXCEPTIONS and motion for new trial. Assumpsit to recover the value of one $500 and two $100 “five-twenty U. S. bonds of the issue of 1862.” The writ is dated February 19, 1872. The declaration contains four counts.

<p>Bower — in what wife is entitled after divorce. Estoppel of tenant to deny his grantor’s seisin. Abatement.</p> <p>'When a divorce has been decreed to the wife for the fault of her husband for any other cause than impotence, she is entitled to dower in all real estate owned by him at any time during the coverture, if she has not barred her right thereto by joining in a deed or otherwise.</p> <p>In an action for dower in such real estate, the tenant having received her title by warranty deed from the demandant’s husband after the marriage and before the divorce, cannot deny the seisin of her grantor.</p> <p>The objection that it does not appear that the defendant was tenant of the freehold when the action was commenced can be taken advantage of only by plea in abatement.</p>

<p>ON REPORT.</p> <p>This case was submitted to the court to be determined upon such of the evidence adduced as is found legally admissible, and such judgment to be entered thereon as the court may think the rights of the parties require.</p> <p>This suit was brought to recover 13,960 and interest, as the unpaid balance due upon several assessments on four thousand dollars of stock in the plaintiff corporation, at a par value of $100 per share. The defendant’s subscription was expressed in dollars and not in a specified number of shares. The writ alleged a subscription by him in April, 1868, “ to be paid at sucb times, in such in-stalments, and to such persons as thereafter required by a vote of the company; ” that no assessment was to be made till a bona fide subscription of $300,000 had been obtained, and certain other conditions were affixed, all of which it was claimed had been complied with by the corporation; but that the defendant refused to pay any of his subscription,- in consequence of which refusal his forty shares had been sold at public auction, agreeably to the charter and -by-laws of the company, for one dollar per share; and that this action was brought to recover the balance aforesaid, and interest on each instalment from the time it became payable.</p> <p>The defendant contended that there was an agreement for the company to take his $4,000 in railroad sleepers, which he was always ready and willing to deliver when the corporation fulfilled its part of the contract; but he further objected that all of the assessments were void for numerous reasons; those considered and acted upon by the court, and the facts upon which they rest, are fully stated in the opinion.</p> <p>Though the defendant’s subscription was made prior to the organization of the company, yet in the organization and subsequently, he was recognized as the ow-ner of forty shares, whidh was an acceptance of his proposal and a completion of the contract. It appears by the report of the committee, made April 18, 1868, that $3Í6,500 had been bona fide subscribed and the condition of Clarke’s subscription complied with; and it was then voted that all persons who had subscribed to the stock be admitted as members of the company. That completed the contract, so as to bind both parties to its fulfillment. Penobscot R. R. Oo. v. Rummer, 40 Maine, 172; K. §■ P. R. R. Oo. v. Palmer, 34 Maine, 366;. Atlantic Mills v. Abbott, 9 Cush. 423; Ladies' Institute v. French, 16 Gray, 196.</p> <p>By the charter, § 4, a personal obligation is imposed on the subscriber, to pay any balance due after the sale of his shares fin-non-payment of assessments thereon. K. P. R. R. Oo. v. Kendall, 31 Maine, 470.</p> <p>From tlie course pursued by defendant’s counsel at the trial, we presume be will contend that the amount of tlie capital stock and the number of shares have never been fixed, and several Massachusetts cases will be cited upon this point, especially Troy Greenfield R. R. Oo. v. Newton, 8 Gray, 596.</p> <p>No provision of the Revised Statutes of Maine requires that this should be done before any assessment can be made. In the charters of the several Massachusetts companies was a requirement that the number of shares should be fixed. Lexington R. R. Oo. v. Chandler, 13 Met. 312; 8 Gray, 596; Worcester R. R. Oo. v. Hinds, 8 Cush. 110.</p> <p>The minimum number of shares authorized by the charter of our company was one thousand; the maximum was six thousand. A subscription of one thousand shares would bind the subscribers. Oldtown R. R. Oo. v. Veazie, 39 Maine, 571; 40 Maine, 172; Renobscot R. R. Oo. v. White, 41 Maine, 512; L&wey's Island R. R. Oo. v. Bolton, 48 Maine, 451.</p> <p>But if this were necessary, the vote of May 12, 1868, accepting the subscription of the towns did fix the capital at $500,000, as much as the vote in the Massachusetts case “ to close the books.” 13 Met. 311.</p> <p>The paper signed by Clarke is identical. in its terms with that which was declared sufficient, to hold the defendant in K. P. R. R. Oo. v. Jarvis, 34 Maine, 360.</p> <p>There was obtained a Iona fide subscription to the stock of more than $300,000. This is sufficiently proved by the records, which are unimpeached. P. K. B. R. Co. v. Dunn, 39 Maine, 598 ; 40 Maine, 172; 41 Maine, 512.</p> <p>If any verbal agreement to take sleepers was ever made it was waived by Clarke’s unconditional subscription. K. Se P. R. R. Oo. v. Waters, 34 Maine, 369. The arrangement for Thompson, the contractor, to take $40,000 in stock, half of which was to be paid to the Maine Cent. R. R. Co., did not make his subscription conditional, the case of the Troy $ Greenfield R. R. Oo. v. Newton, 8 Gray, 596, to the contrary notwithstanding. In that case the stock was delivered at less than par. The transaction with the Maine Central was between Thompson and that company, and nothing to us. We could take needed work instead of cash. Chester Class Co. v. Dewey, 16 Mass. 94. So we could, and would, have taken defendant’s sleepers, but they were never offered us. Therefore, we have a right now to demand a payment in money. Indeed, we always had this right, because the subscription on its face is unconditional.</p> <p>The proceedings under which the plaintiffs claim to hold the defendant are based upon statute provisions exclusively. These provisions must be strictly complied with. York $ Cumberland It. It. v. Ritchie, 40 Maine, 425.</p> <p>An examination of the proceedings shows that these provisions as well as the conditions of the defendant’s contract, have been totally disregarded.</p> <p>' The charter of the Somerset R. R. Co. provides that its capital stock “shall consist of not less than one thousand, nor more than six thousand shares.” Special Laws of 1860, c. 465, § 2.</p> <p>Before any assessment could be legally made it was indispensable that the number of shares should be determined by a vote of the stockholders, or by the directors. Somerset Kennebec R. R. v. Cushing, 45 Maine, 524.</p> <p>Without this the president and directors could not make an equal assessment on all the shares, as the charter required.</p> <p>It is not a little curious that the learned counsel for the plaintiffs should have so totally forgotten his own able argument in Som. Sg Ken. R. R. v. Cushing, cited above, and the decision of our court which closely followed that argument and fully sustained it. It need only be referred to as a complete and perfect answer to his argument in the present case.</p> <p>All the alleged assessments were made before the number of shares, fixed by the vote of the stockholders, was subscribed for. No assessment could be lawfully made till the whole number of shares bad been taken. Stoneham Branch R. R. Go. v. Gould, 2 Gray, 278; Worcester §- Nash. R. R. Go. v. Hinds, 8 Cush. 110; Atlantic Gotton Milis v. Abbott, 9 Cush. 426; Troy Sf Greenfield R. R. Go. v. Neioton, 8 Gray, 596.</p> <p>The proposition of the defendant to fix the number of shares at 8,000, and the proposition of the several towns to fix it at 5,000, were deliberately rejected, and the clerk was directed to keep the books open until subscriptions to the amount of 6,000 shares had been received. This was exactly equivalent to a vote “ to close the subscription books ” when 6,000 should be subscribed.</p> <p>The defendant’s subscription was made subject to the condition that the plaintiffs should obtain 1300,000 by bona fide subscriptions. The case falls directly within the principle laid down in Troy $ Greenfield R. R. v. Newton, — that the subscriptions of the towns were “ upon other terms, and the defendant is not bound to treat such subscriptions as legal subscriptions in making up the required number of shares.”</p> <p>The $300,000 required as the condition of the defendant’s subscription could not be made up without counting the subscriptions of the towns. These required that $500,000 should be obtained. The subsequent subscriptions making up this amount are not bona fide.</p> <p>By § 4 of the charter, the president and directors are authorized to make assessments. No such power is conferred upon the treasurer, yet they were made by him, as treasurer. It does not appear that the president and directors gave any instructions to him in the matter, and they could not, if they wished, delegate their power. Stoughton v. Baker, 4 Mass. 530; Brewster v. Hobart, 15 Pick. 307 ; Female Orphan Asylum v. Johann, 48 Maine, 185.</p> <p>If one of several assessments, for which stock is sold, is invalid, the sale is void. Lewey's Island R. R. v. Bolton, 48 Maine, 454</p>

ON EXCEPTIONS. .Two indictments under R. S., c. 27, § 20. The first indictment contained two counts; one alleging that the respondent, on the 16th day of June, 1871, at New Portland, “ did travel from place to place in said town of New Portland, carrying for sale, and offering for sale, and offering to obtain, and obtaining orders for the sale and delivery of spirituous, intoxicating, and fermented liquors in this State; ” and the other containing the same allegations with…

ON REPORT. Tbespass for the unlawful conversion of four hundred and thirty-two shares of Maine Central Railroad stock, belonging to the plaintiff, by causing them to he taken and sold to pay a tax assessed by the defendants, in tlieir official capacity as assessors of Watcrville, in 1865, against said Ware, who was not an inhabitant of that town on the first day of April in that year.

ON REPORT. ActioN oe dower wherein the plaintiff claims dower in land owned by her former husband, the defendant, during their covert-ure, and now owned by him. She had obtained a divorce upon her libel at December term, 1869, of this court, upon allegations of infidelity and other improper conduct on his part.

ON REPORT. Trespass for the unlawful conversion of five pieces of cloth, valued at $75.00. The defendant justified the taking under a brief statement that the goods were seized bj him in his capacity of collector of taxes in Hartland, and sold by him to satisfy a tax assessed upon the plaintiff in Hartland for the year 1870. The tax was poll-tax $3.00, and tax on personal property $21.78; the expenses of sale, etc., were $1.62.

On exceptions. Complaint under the Bastardy Act. Proceedings were instituted before the magistrate, April 19th, 1871, and the respondent furnished the requisite bond for bis appearance at the September term of court following.

On REPORT. Nine cases, each entitled as above, were submitted to the consideration of this court at the same time. They were petitions for partition. The first is for partition of Township No. 14, R. 14, which is situate within the limits of the Northern Registry District of Aroostook County.

On Repoet. This suit was brought upon a policy of insurance upon the house and furniture of the plaintiff, issued by the defendant company to the plaintiff February 5, 1867. The property insured was burned on the night of September 1, 1868. Mr. Bellatty showed title to the house by deed, dated April 12, 1858, to him from his father-in-law, Edward Beal.

<p>Bail — how reduced. New trial. Adverse possession.</p> <p>The court will not set aside a verdict establishing a title by disseizin whon there is evidence on hoth sides, and no exceptions are taken to the rulings oí the presiding justice, and there is nothing indicating misconduct or gross partiality on the part of the jury.</p> <p>The court will not quash a capias writ, on which a defendant has been held to bail, on the ground that the ad damnum is evidently excessive.</p> <p>Conceding a right to betterments is an admission that the possession, during the time in which this right was acquired, was adverse.</p>

On motion eoe new TRIAL. Assumpsit to recover for breach of a contract entered into October 20, 1867, between the plaintiff and defendants’ intestate to sell the plaintiff a stock of goods “ at the prices of said goods now in Boston, price to be settled and delivery given on or before the tenth of November,” 1867.

On exceptions. Assumpsit for the balance due for a stove furnished by the plaintiffs to the schooner Golden Rule, Nov. 17, 1868, .while in the port of Bangor. The case was referred to the court reserving the right to except.

ON EXCEPTIONS. Teespass against the defendant for arresting the plaintiff at Kennebunkport, October 27, 1869, and holding him in custody.

On AGREED STATEMENT OF- FACTS. Writ of entry to recover the possession of certain real estate in Orono, which originally belonged to the defendant and still belongs to him if it did not become the property of the plaintiffs under certain sales to them by the treasurer of their town lor non-payment of taxes assessed on said premises as the property of the defendant, a non-resident, for the years 1857, 1858, 1859, and 1868.

On AGREED STATEMENT OF FACTS. This was a petition for a writ of certiorari to bring before this court the record of the proceedings of the city council of Bangor in widening Pickering square and Independent street in that city, setting out the facts that, on the fifth day of May, 1870, ■ Charles Hayward and other citizens presented to the city council a petition to have Union and Fore streets and Pickering square widened in a manner particularly specified; that on the ninth…

On. report. Replevin for certain logs cut in the winter of 1869 on the public lots reserved by the State in the east half of township No. 2, Range 5, W. E. L. S. The writ was dated June 11, 1869.

Bill in equity. George M. Weston complains in this bill that he has been for many years largely engaged in the purchase and ownership of timber lands and other real estate, severally and jointly with Dudley F. Leavitt, one of the defendants, employing more capital than was possessed by himself and Leavitt, obtaining such additional means of Blake, the other defendant, a capitalist, whose business it was to make loans on security; that Blake’s loans to him, individually and…

<p>ON REPORT.</p> <p>AssuMPSIT for money bad and received to recover a poll and personal tax amounting to $489.80, assessed to tlie plaintiff by the .defendant, for the year 1867, and paid by plaintiff on arrest therefor.</p> <p>The facts are fully stated in the opinion.</p>

<p> Exceptions. Demand. </p> <p>In order to sustain an exception to a refusal to give a requested instruction the bill of exceptions must show enough of the evidence to establish, as a positive fact, that the excepting party really was aggrieved by the refusal; it is not suf- • ficient to show inferentially, by a forced and unnatural construction of the statements of the exceptions, and in an improbable contingency, that he may possibly have been injured.</p> <p>Where the requested instruction assumed that property received in adjustment of taxes was not equivalent in money value to the amount of those taxes, and that it was taken as a compromise settlement between the taxing town and the tax-payer, and the bill of exceptions did not state facts sufficient to support the proposed instruction, it was held that an exception to a refusal to give it must. he overruled.'</p> <p>No demand is necessary before commencing suit to recover money paid under duress and protest.</p>

Bill in equity. This was an amicable bill in equity brought by the widow of late James W. Hathaway, by the guardians of his children, and by his sister, Mrs. Dillingham, for and in behalf of her children, as complainants, against the administrator with the will annexed of said James’ estate and the residuary legatee named in the will in order . to obtain a construction of that instrument, which (omitting the attesting clause and execution, in ordinary form) was as follows :…

ON REPORT. Assumpsit to recover $190.75, balance of an account, the first item of which was “two hales of hay,” delivered Nov. 1, 1869, to Albert Perkins.

ON EXCEPTIONS. Trover. The facts are sufficiently stated in the opinion.

On AGREED STATEMENT OE FACTS. This was an action of assumpsit to enforce a lien for labor upon a quantity of logs in Penobscot river, marked N, cross, V, two notches, cross, notch (NXVIIXI), and against Daniel E. Ireland, as employer and principal defendant,- upon an account annexed, for cutting and hauling the logs, seventy-six days’ work at a dollar per diem, $76.00, which labor was the basis of the lien claimed. These facts were admitted to be truly stated in the writ.

On exceptions. This was assumpsit upon an account annexed for labor, rendered by the plaintiff to the defendant, upon certain logs in the Penob-scot river, marked cross, W, A, cross, notch (XWAXI). At the return term of the writ notice by publication was ordered.

On REPORT. This was an action of assumpsit in which the plaintiff, who enlisted and served three years in the rebellion without having received any bounty, claims to recover his proportion of the money paid the defendant town under the Act of 1868, c. 225.

<p>On report.</p> <p>Dower for certain land on Exchange Street, Bangor. Demand was made November 21, 1872, and the writ dated December 22, 1872. It was admitted that demandant was married to George S. French in 1832 and that he died in 1849 : that Zadoc French was seized of the premises, in which dower was demanded, at the time of his death in 1830, and that Ebenezer, Frederick F., and George S. French were his only heirs.</p> <p>The demandant introduced a levy in favor of James Crosby-against George S. French, made July 3, 1888, upon one-seventh of one-tliird of the premises in which Mrs. French claimed dower. The attachment was made September 27, 1886. Also, a levy in favor of E. H. Sleeper against the same, dated February 8, 1842, the attachment having been made September 20, 1886, upon one-fifth of one-third, and a deed from Sleeper to Crosby, thus giving James Crosby title to four thirty-fifths of the whole lot. There was a partition by which the premises in which dower is demanded were set off in severalty to said Crosby, who died leaving the tenants his heirs at law.</p> <p>The tenants introduced a deed from George S. French to Eben French of his one-third of the premises, dated September 28,1886, in which the plaintiff released her dower; also, a deed from Frederick F. to Eben French, dated May 24, 1886, whereby Eben became possessed of the whole estate subject to the attachments mentioned above. The tenants also introduced eight levies, made on executions against Eben French, the attachments upon which were made after the deed of George S. French to him, covering his whole title in the estate.</p> <p>The tenants requested the presiding justice to rule that the de-mandant, having released her dower as aforesaid, could not maintain this suit. This ruling was refused and the court, on the contrary, instructed that, inasmuch as tenants did not claim under the deed from George S. French, demandant’s release of dower did not affect her right to recover in this action.</p> <p>The tenants submitted to a default which was to be stricken off and a nonsuit entered if the rulings were erroneous. An agreement was also made as to the assessment of damages in case the default should stand.</p>

ON REPOST. Assumpsit apon the following note : Pittsfield, December 29, 1869, Four months after date we promise to pay to the order of the Treasurer of the Newport Savings Bank, three hundred dollars at the Newport Savings Bank, value received. DaNiel W. Simons, HeNry M. Simons. Going Hathorn, Surety. On the back of the note was indorsed, “ Waiving demand and notice, John E. Simons.

<p> Equity. Power of court to reform, deed of real estate. </p> <p>■Where the complainant Bargained one parcel of land, and, by a mistake of both parties, conveyed another parcel to the respondent, the equitable jurisdiction of this court ■will authorize it to reform such deed according to the intention of the parties, and, by decree, to protect the interests of such persons as may legally claim to hold the correct premises through and under the respondent.</p>

On EXCEPTIONS. Case against the defendants, who are doing business under tbc firm name and style of the Eastern Express Company, for neglecting to deliver to plaintiffs a package of money intrusted to the defendants as common carriers. The verdict was for the plaintiffs, and the defendants excepted to certain rulings and instructions, the facts in relation to which are sufficiently stated in the opinion.

<p>Sale — evidence of. Intoxicating liquors —claimant can set up no right not specified in his claim.</p> <p>■When goods have been sold and delivered and are in the vendee’s possession, the same evidence is necessary to show a sale to the original vendor as would have been required to establish a sale from him.</p> <p>The claimant of spirituous and intoxicating liquors seized under the search and seizure section of R. S., c. 27, can assert no right to the liquors seized except that specifically set forth in his written claim filed with the magistrate before whom the proceedings arc pending. v</p>

ON EXCEPTIONS. Assumpsit for groceries furnished to llie defendant or his order, and which, it is admitted, had not been paid for. The trustee, George VY. Ladd, disclosed an amount due the principal defendant, less than twenty dollars, for personal services performed within a month prior to the service of the writ upon him. At the time the groceries were sold to defendant he was an unmarried man and boarded with his mother.

ON EXCEPTIONS. Assumpsit for certain logs sold and delivered. The facts in relation to the case, and the grounds of exception are fully stated in the opinion. The testimony admitted, subject to objection, was not simply res inter alios, an agreement between strangers to the suit, but between one of the litigating parties and another member of the firm, all of whose interests were directly adverse to plaintiffs.

ON REPORT. Trespass against the sheriff of Penobscot county for the act of his deputy in taking a quantity of cedar rails, posts, stakes, and shingle timber, the property of the plaintiff, and selling them upon a writ in favor of Orimel Rogers et al. against Elisha Sawyer. The timber was cut under a permit given by Henry E. Prentiss to Elisha Sawyer and John Sutherland.

<p>Charter — construction of.</p> <p>The defendants are the lessees of the plaintiff’s boom and appurtenances at tlie rent of nine cents for each and every thousand feet of logs and other lumber passing through the same. This rent is the equivalent, by statute, for the use of the booms and appurtenances, and is not to be increased, though under some circumstances a portion of the logs may be twice rafted before they pass through the plaintiffs booms.</p>

On REPORT. Assumpsit on an open policy of insurance or on a certificate issued under such policy, tlie terms of which and all material facts are stated in the opinion. contended that the instructions sent Hopkins with the open policy restricted him to coastwise risks between parts of the United States exclusively; also, that no insurance could be effected till the risk was accepted by the company, and that this one was promptly declined.

ON EXCEPTIONS. The facts in this case were reported by Mr. Chief Justice Appleton, to whom the action was referred under an agreement that he should “report facts upon any question of law ” that either party might require. The referee determined that the plaintiff should recover the amount of the note in suit and costs unless, upon the statement of facts, the opinion of the court should be otherwise.

ON EXCEPTIONS. Debt by the plaintiff, as collector of taxes of the town of Milo, for the year 1866, to recover the sum of $147.50, the amount of a supplemental assessment upon the poll and personal estate of the defendant. The plaintiff cjaimed that the defendant was an 'inhabitant of Brownville at the time of the commencement of this action, but concerning this and the liability of the defendant to taxation in Milo in 1866 there was conflicting testimony.

On report. Complaint for flowage of part of lot No. 13, Range 5, in Monson. Plea, general issue with a brief statement denying the ownership of the complainant as alleged in the complaint, and claiming a prescriptive right of flowage in the respondents. The evidence first introduced in the case, by both parties, showed that the plaintiff was owner of ail undivided two-thirds part of lot No. 13.

On REPORT. This was an action of debt upon a bond given by Uriah T. Pearson, as collector of the town of Orneville, for the year 1869, to the plaintiffs, and signed by the other defendants as sureties.

On EXCEPTIONS. This was an action to recover for supplies furnished one Millet and his family as paupers. It was admitted that the settlement of the alleged pauper at the time the supplies were furnished was in Corinth, and it was admitted or proved that Millet had resided in the plaintiff town four years and about eight months without having received pauper supplies wjthin that time.

On report. Assumpsit to recover $35.30 as the balance due on account. The plaintiffs sold the defendant $70 worth of flour in 1867. In 1869 the defendant paid $35 on this indebtedness with the agreement that the defendant should have his own time to pay the balance.

<p>On agreed statement of facts.'</p> <p>Debt on a poor debtor's bond.</p> <p>This action was' submitted to this 'court on the following agreed statement of facts;</p> <p>The writ in the suit in which the execution issued, upon which the debtor was arrested, was returnable before Edwin Small, Esq., a trial justice for the county of Kennebec, at China, in that county, on the fourth day of May, 1868, at which time and place the defendant, Levi Joy, was defaulted and judgment rendered against him for the sum of eighteen dollars, debt, and four dollars, cost of' suit. This judgment was properly recorded and signed by the justice. On the 6th day of May, 1868 said Justice issued execution on the judgment which was returned in no part satisfied, and an alias execution was issued by said Small on the 6th day of September, 1869, which was also returned in no part satisfied. In January, 1870, Mr. Small died, and on the 1st day of February, 1870, his records, containing the record of the judgment and proceedings aforesaid, were delivered to one James Brainerd, Esq., another trial justice for the county of Kennebec, agreeably to R. S., 1857, c. 83, § 17 (same as R. S. of 1871, c. 83, § 25) who transcribed the same upon his book of records, agreeably to said section, and on the second day of the same month issued execution on such transcribed record under section 18 of the same chapter, on which last-named execution the debtor (Joy) was arrested, and was released by giving the bond provided for by R. S., 1857, c. 113, § 22, which bond is the one in suit here.</p> <p>None of the conditions of said bond having been performed, this action was seasonably commenced.</p> <p>It was agreed that if the execution issued by James Brainerd, Esq., was legally issued, the defendants were to be defaulted; otherwise, a judgment was to be entered in their favor.</p> <p>The point at issue is whether the words “ such first execution,” mean the first execution issued by the transcribing justice, or the first execution issued on the judgment. He succeeds to all the powers of the deceased magistrate ; and the clause in question was inserted to place the same restriction upon his power as upon that of the original justice as to the first execution issued on the judgment. The execution issued by Brainerd was not a first execution but a pluries. R. S., c. 82, §§ 126, 127.</p> <p>Originally the transcribing justice could not issue any execution from the transcribed record, but must issue scire facias. Laws of 1821, c. 76, § 15. By R. S. of 1841, c. 116, § 22, he could issue no execution after one year after judgment had expired except upon scire facias. R. S. of 1857, c. 83, § 17, go one step further, that his first execution cannot issue after the lapse of that period, except upon scire facias. If the intention were to give the same power that the original magistrate possessed, this last clause would have been omitted.</p>

<p>ON REPORT.</p> <p>The facts are stated in the opinion.</p>

ON exceptions and a motion to set aside tbe verdict as being against the law and the evidence, and “ because the jury made up their verdict by rendering the twelfth part of eleven sums chalked by eleven of the jury, one of the jury chalking nothing, thus showing that the verdict was the verdict of eleven members of the panel only,” and a motion for a new trial on the ground of newly discovered evidence.

Hannah F. Belcher of Winterport applies to this court for a writ of mandamus to issue to Upton Treat, Esq., one of the trial justices of Waldo county, commanding him to make out and deliver to her an execution in her favor against one Sewall Simpson, and Eli C. West, as Simpson’s trustee, upon a judgment which she claims to have recovered under these circumstances, as stated by her in her petition.

On exceptions. Assumpsit to recover the balance clue upon an account annexed for medical services and medicine furnished by the plaintiff, a physician, to the defendant and to the defendant’s son, at the father’s request, amounting to $43.

On REPORT. The court to render such judgment as the law and the evidence required. The opinion contains a statement of the case.

This action, for money had and received, commenced December 6, 1871, to recover $21.26 paid to the collector of the town of Brooks for taxes for the years 1868, 1869, and 1870, alleged to have been assessed upon the plaintiffs and paid under protest, was submitted upon facts agreed for this court “ to enter such judgment as law and justice demanded.’’ Regular proceedings were had in May and June, I860, to form the persons composing this lodge into a corporation by the name…

On REPORT. This is an action to enforce a lien for labor and materials furnished for repairing the schooner Daniel Webster, to the amount of $2,346.11; brought under R. S., c. 91, § 9.

On REPORT. The facts necessary to an understanding of the issue determined by the court are sufficiently stated in the opinion. If upon the facts the tenant is estopped to deny the demandant’s title, or to set up title in himself, or if his notice to them and the subsequent acts of the parties did not terminate the tenancy, then a default is to be entered; otherwise, the action is to stand for trial.

<p> Adverse possession. Administrator cannot, without a consideration, bind his intestate’s estate, or release easement. </p> <p>Where one has a right to use land for certain purposes Ms occupation of it must he presumed, prima facie, to he in accordance with Ms legal right.</p> <p>A voluntary release of an easement hy an administrator does not hind the estate, nor the heirs of the intestate.</p>

ON motion by the defendant to set aside a verdict rendered for the plaintiffs, on the ground that it was contrary to the law and the evidence. This was an action of trover to recover the value of a lighter, or small vessel, her chain and anchor.

Under the provisions of the Constitution, Art. YI, § 3, His Excellency, the Governor, asked the opinion of the court as to the ’ true construction to be given to § 7 of that article as amended. The facts upon which the question arose appear in the subjoined correspondence.