Volume 62 — Maine Reports

<p>Costs. Pleading. Practice. Pelease. P. 8., c. 82, § 115.</p> <p>A discharge under seal, not fraudulently obtained, by which a verdict for §350 is released for $67, during the pendency of a motion for a new trial of the action, cannot be regarded as invalid for inadequacy of consideration.</p> <p>A plaintiff, who has released a cause of action, and agreed to enter a discontinuance as soon as may be without costs to the defendant, will be liable to the releasee for any costs that may be subsequently occasioned by his ineffectual resistance to the execution of his agreement.</p> <p>The liability of an assignee under E. S., c. 82, § 115, for the costs of an action prosecuted for his benefit, is not confined to cases in which the assignment is made before action brought.</p>

Bill in equity. Upon tbe twenty-second day of November, 1851, tbe late Shepard Cary mortgaged to Nelson Herrin certain real estate in Houlton and vicinity, to secure anote for $1,500 payable in six months with interest.

On motion for a new trial. Trespass guare clausum against Narcisse Dufour and ten others for breaking and entering the plaintiff’s close on the seventeenth day of July, 1871, and on divers days between that day and the date of the writ, July 27, 1871, breaking fences, destroying trees, digging up soil, &c., &c. The ad damnum was $500.

On report. These two cases, requiring but one statement of facts, were submitted to the' court together, to render judgment for the defendants if the actions were not legally sustain able; otherwise, to stand for trial upon the question of damages. The writs in both suits were issued the same day, Feb. 7, 1872, and ran against Mr. Burleigh, land agent of the State, and Lewis B. Johnson, sheriff of the county of Aroostook.

On report. Trespass guare clausum for depositing logs upon the plaintiffs’ lots, which they claimed extended to the centre of the Meduxnekeag stream in Houlton, where a mill-pond had been formed by the dam connected with the Kelleran Mill (so called), in that town.

Bill in equity. The complainant seeks to obtain a conveyance of certain land described in his bill, which is brought against the administrator and a minor lieir at law of the late James White, in whose name the record-title to the premises stood at the time of his death.

On report. Trespass guaro clausum for breaking and entering a close in Franklin, in the possession of the plaintiff and cutting trees thereon. The defendants claimed the right to cut where they did under a deed, expressed in the language quoted in the opinion, which purported to convey three hundred and twenty acres of land, but referred' to the running out of the lot by John Black, according to whose plan it contained but two hundred and eighty-five acres.

On eepoet. Assumpsit upou an award of referees under a statute submission, N. S., c. 108 ; the subject of which and all the facts necessary to an understanding of the case, are sufficiently stated in the opinion of the court. Such judgment as the law and evidence required was to be-ordered.

<p> Burden of proof. Demand. Interest. Promissory Note. </p> <p>Where the holder of a note, given for spirituous liquors, shows that he purchased the same for value, in due course of business and under circumstances not calculated to awaken suspicion, it will be presumed that he had no notice of the illegality till the contrary is shown.</p> <p>A demand is not necessary to enable the holder of a note, payable on a certain time, to recover interest thereon from the maturity thereof, although it is not upon interest before that time.</p>

Bill in equity. Upon an execution in favor of one Pinkham against James McGown, the lot marked B. in the accompanying plan was seized, but, owing to the mistaken supposition that the estate which actually belonged to Edward McGown — though in the occupancy of Peter McGown, and • known as “the Peter McGown lot,” being under contract for a purchase by said Peter — was the property of Peter McGown, the appraisers’ certificate was made applicable only to the lot marked A. on the…

On facts agreed. Assumpsit to recover $309.79 paid by the plaintiffs under protest, on the twelfth day of March, 1873, as the tax for the year 1872, upon their buildings, machinery and property used in their manufacturing establishment in Brewer.

On exceptions. Trover for the conversion of a specified number of bars of railroad iron of various lengths, valued at $2,500, alleged to have been taken July 17, 1871, in Brooks. Wilson, Tennant & Co. were contractors for building the Belfast and Moosehead Lake Railroad, furnishing the iron themselves. November 1, 1870, they delivered the road to the company.

<p>'On exceptions and motion por a new trial.</p> <p>Trespass, commenced by writ dated Sept. 1,1871, for injuries received March 22,1871, by the plaintiff at the hands of William Eoster, then a brakeman in the employ of the defendants. Ad damnnm, $10,000. The plaintiff, a man forty-three years old, a lumberman, and proprietor of the Mansion House in Bangor, left his lumbering-camp to come to that city, upon the twenty-second day of March, 1871, over the European and North American Hailway, intending that “his faithful dog shall bear him company.” He testified that he took the train at Mattawamkeag about four o’clock in the morning, his dog entering the passenger car with him without caution or objection from anybody as to the animal going in there; that soon after the cars started, the brakeman, Foster, came in, and as he stooped to put some wood in the stove, discovered the dog lying under a seat, and after inquiring whose it was, said it was no place for him, and he “must go off this carat the same time taking hold of him and dragging him out into the alley; that the plaintiff thereupon, said if he would wait till they arrived at Winn, he would take the dog off himself, but that he could not let the dog be put off while the train was in motion ; that when he first addressed Foster, he clapped his hand on F.’s shoulder saying, “my friend, what is the trouble ? to which F. replied, “the dog must go offj” that, upon the plaintiff’s repeating that the dog could not be removed while the train was moving, Foster rose right up and grabbed Hanson by the breast; whereupon he took F. by the shoulder and set him down on a seat running parallel with the side of the car, and told him to sit there ; that F. drew his feet up and kicked plaintiff, breaking the pane of glass behind him in doing so, but not releasing himself; that F. asked who was going to pay for that glass, and H. said F. should; that F. then asked H. to let him up, and plaintiff said he would if F. would behave himself; and on his saying he would, the plaintiff permitted him to rise, and turned round to go and resume his own seat; when, while his back was towards F., he suddenly received severe blows with a poker, (which F. had taken from the other side of the car, where it lay by the stove) about the head and shoulders, one being directly over the eye; — which blows constituted the assault and battery, for which this suit was brought.</p> <p>The medical testimony was that Mr. Hanson had a severe wound upon the temple, and two more upon the top of his head, the ■external table of the skull was cracked, and his eyes badly affected, indicating danger of palsy of the optic nerve and entire loss of its functions.</p> <p>The poker was of iron, about two feet long, and a half-inch in •diameter. The whole occurrence did not occupy more than five minutes. The court stenographer, J. D. Pulsifer, Esq., who was in the car returning home with Judge Dickerson and others, from the term at Houlton, which had adjourned the day before, was ■called as a witness and corroborated the plaintiff as to the fact of his having turned and entered the aisle to resume his seat, when he was struck from behind by the brakemaD.</p> <p>Mr. Poster, as witness for the defendant, testified that he asked for the owner of the dog, and that he (the owner) should remove •the animal, but nobody answered, so he (witness) was about to ■take him into the baggage car, when Hanson came up and told 'him to let the dog alone; that the dog should not go out of the car, and Foster said he should go; whereupon (he said) Hanson caught and twitched him over a seat and jammed his head through -the window; that H. had unbuttoned his coat, adding that “his (H.’s) hand was going into bis breast, and I (E.) thought I would •not let him shoot me if I could help myself, and I jumped right back to the stove and picked up the poker and hit him over the 'head with it.” He swore, also, that he “told him (H.) the rules ■and spoke up loud enough for him to hear;” that the superintend- • ent discharged him (E.) the next day; but on cross-examination stated that he was, at the time of trial, employed “way up on the line of the railroad” by Charles Sawyer of Bangor, who -was cutting .wood for the defendants, and that the defendants paid him (E.) his wages monthly. It further appeared that the only “rules” by which he was governed, upon the subject of dogs, was that “most generally” whenever the conductor saw a dog in the passenger car .he would tell Poster to take him into the baggage-car.</p> <p>Kent, J., presiding at the trial, instructed the jury that “if Poster was acting in the performance of his duty as a hrakeman, he would be justified in using a reasonable degree of force, necessary and proper to accomplish the removal of the dog from the car, but if he used more violence than was necessary, and inflicted upon Mr. Hanson blows that were unnecessary to perform his duty, the company would be liable, and the jury may, in that ease, award punitive or exemplary damages.”</p> <p>The defendants requested an instruction that they were not liable if Hanson’s conduct materially contributed to the injury; also that they were not liable if, while Poster was in performance of his duty, he was interrupted or resisted or assaulted by Hanson and afterwards a personal quarrel ensued between Poster 'and Hanson in which Poster inflicted the injury complained of.</p> <p>The judge did not comply with these requests in the form proposed, but instructed the jury, that a passenger has a duty to perform as well as the company; he is bound to conduct in such a way as not to give excuse for violence to his person; that a person cannot go into the cars and violate the reasonable rules and regulations of the company or of propriety or decency. If he does so he cannot complain of the company for enforcing their regulations, because he himself is the party that has been guilty of wrong, and the company has done what it had a right to do. The obligations are not all on one side, but are mutual. If Poster was acting in performance of his duty as hrakeman he would be justified in using a reasonable degree of force, necessary or proper to perform the act. But if he used more violence and inflicted blows that were unnecessary to perform that duty, the company would he liable.’ Was it necessary for him to use the poker in putting out the dog ? The question is, during the whole matter, did he use violence more than was necessary ?</p> <p>No further instructions were given. The verdict was for four thousand dollars and the defendants excepted, and moved to have it set aside as against law and evidence and because the damages were excessive.</p> <p>I. The quarrel was personal, after the attempt to remove the dog had ceased. The assault was not within the scope of his duty; hence the defendants are not liable. McManus v. Crickett, 1 East, 106 ; Wright v. Wilcox, 19 Wend, 343 ; Marlow v. Mumiston, 6 Cowen, 189 ; Richmond v. Vanderbilt, 1 Hill, 480 and 2 Comst.R., 482; Thames v. Mousatonic R. R. Co., 20 Conn., 40; Isaacs v. ZdAv. R. R. Co., 47 N. Y., 122; Roe v. Birkenhead Co., 6 Railway & Canal Cases, 795; Poulton v. London Co., 2 Law R., 534; Eastn. Co. v. Brown, 6 Exch., 314; Edwards v. London, 5 Law R., (Com. Pleas) 545 ; Walker v. South, Id., 640; Little Miami Co. v. Wetmore, 18 Ohio St., 110 and 9 Am. Law Reg., 621, which is a parallel case.</p> <p>II. The jury should have been told that if Hanson’s conduct or want of ordinary care contributed to the injury, he was not entitled to recover. Murphy v. Deane, 101 Mass., 466; Mickey v. B. dc L. R. R. Co., 14 Allen, 429; Todd v. O. C. R. R., 7 Allen, 207; Lucas v. M. B. Co., 6 Gray, 64; Cavett v. M. dé L. Co., 16 Gray, 501; Gonzales v. M. Y. Co., 38 N. Y., 440 ; Bancroft v. B. <& W. Co., 97 Mass., 275; Michols v. Middlesex Co., 106 Mass., 463 ; Forsyth v. B. <& A. Co., 103 Mass., 510 ; R. R. Co. v. Aspell, 23 Penn. St. R., 147; P., Ft. W. <£¡. C. R. Co. v. Minds, 53 Penn. St. R., 512.</p> <p>This is not a case for vindictive damages, as against the corporation.</p>

On facts agreed. Assumpsit to recover one hundred dollars paid under protest, November 9,1871, for taxes assessed that year upon the plaintiffs’ tannery in Lincoln.

On motion por a new trial, upon the ground that the verdict was against the law and the evidence, and the weight of the evidence.

Bill in equity. Amos Riñes represents that May 7, 1855, Haven Rundlett owned certain real estate in Athens known as “the Davis farm,” and on that day conveyed it to Charles F. H. Greenp to hold in trust for Riñes, who paid the whole consideration therefor and entered upon and occupied the estate, taking all its rents and profits till Nov. 26, 1856, when, at Riñes’ request, Greene conveyed it to Samuel Pratt, a brother-in-law of Riñes, and father of Lucy A. Bachelder and…

<p>On exceptions.</p> <p>Trespass on the case to recover amount of damage sustained by plaintiff through the over-setting and breaking of his sleigh in a snow-drift, upon the highway leading from Corinna through Newport to Stetson. The location of the way, notice of its condition, such as it was, and the injury were admitted ,• but it was denied that there was any defect in the road, or that the plaintiff exercised due and ordinary care in driving. It appeared that there was a pile of cedar lying outside of the wrought portion of the road, but within its limits as fenced out, and a range of cord-wood, about fifty feet long, piled upon “the shoulder of the turnpiked road,” extending its length four feet into that portion of the public way lying between the ditches, and dedicated to public travel. These two piles were about a rod apart. Before or since that time no drifting of snow had ever been known at that point. The accident happened on Monday. The first of the, previous week there had been a snow-storm, prior to which this road had been safe and convenient, and much travelled.</p> <p>The wood had been hauled and piled there within a week or two before the storm, forming a drift extending in width from the cedar to the wood-pile, and lengthwise across the whole road. The snow had not drifted for a long distance in either direction from this spot. On the next day after the storm, the highway surveyor of that district broke out the road with a common wood-sled turned over, and a log eight feet long lashed to it. "When the sled struck this drift it slewed, making a curve in the travelled path around the end of the drift as left; thus, though the road was made passable for the width of eight or ten feet around this drift, it changed the direction of the travel, crowding it to the opposite side of the way.</p> <p>"Upon the day of the accident, Mr. Bogers was driving along southward, at a rate of about five miles an hour, in a north-east hail storm, a friend with him holding an umbrella so as to protect them. The plaintiff did not see the drift; whether prevented by the umbrella or not he did not know. He sat upon the right side of the sleigh and the drift was on his left, extending four or five feet by the wood-pile into the road, and its end toward the road was six or eight feet wide and two feet high, by a perpendicular embankment. The sleigh-runner hit this embankment, about six inches from the edge or end, thus tipping the sleigh over, and causing the injury. From the end toward the opposite side, there was a passable road, broken out from eight to ten feet, with nothing to prevent the travel from going close to the wood the whole length of the pile. After passing this drift there was no obstruction within that portion of the road dedicated to public travel.</p> <p>The plaintiff desired to have the jury instructed, that if these deposits of wood and cedar caused the drift, and the drift caused the injury, then the wood and cedar were defects for which the town would be liable, and that the road must be safe and convenient for the public travel; this instruction was refused, and the jury were told, that if the drift alone directly caused the injury, and the wood and cedar merely contributed to the formation of the drift, the week before, they should not consider the wood and cedar as in the case; and that the town would not be responsible in this action for their being there. The judge read to the jury the forty-sixth section of the eighteenth chapter of the Bevised Statutes, and instructed them, that if the defendants had complied with the provisions of that section, they were not liable under the fortieth section of that chapter. To the instruction given and that refused, the plaintiff excepted.</p> <p>cited Moulton v. Sanford, 51 Maine, 127; Marble v. Worcester, é Gray, 395 ; Jenks v. Wilbraham, 11 Gray, 112; McDonald v. Snelling, 11 Allen, 290.</p>

<p>On exceptions.</p> <p>Indictment alleging that the defendant, on the first day of December, 1871, was a public officer, to wit, the collector of taxes of the town of Alton, and that, by virtue of and while employed in that office, he received and had in his possession and control, nine hundred dollars of the property of the inhabitants of Alton, and fraudulently embezzled and converted it to his own use; the 8econd count averred that the defendant not being an apprentice, nor below the age of sixteen years, having in his possession and under his care by virtue of his employment, bank-bills, the property of said inhabitants, of the value of one thousand dollars, did embezzle and convert the same to his own use, and took and secreted these bills with the intent to embezzle them and convert them to his own use. The first count concluded with an averment that by such embezzlement the defendant did feloniously steal, take and carry away the money so in his custody as collector. A demurrer filed by the defendant was overruled, and he excepted. It was agreed that, if his exceptions were overruled, he might plead anew.</p> <p>K. S., c. 120,- § 7, does not mention a collector of taxes eo nomine ; nor does such an officer come within the spirit of the act, or the mischief which the act was designed to prevent.</p> <p>The money though held by him in consequence of his official position, was his own and not the property of the town of Alton, though it might be expected to become so by payment into its treasury; and to secure such payment the defendant had given bond satisfactory to the town.</p> <p>A tax is not a debt; hence, cannot be offset against a claim of the person assessed against the town. Pierce v. Boston, 3 Mete., 520. It is sui generis. If not a debt due the town from the individuals assessed, then it is not one when collected and in the hands of the collector.</p> <p>The only exception is that by 11. S., c. 6, § 113, in certain cases it is made a debt to the collector, and not to the town, and he is authorized to sue for and recover it in his own name. His collections, then, are his own, — like those of an auctioneer, or any other bill-collector — so long as they are in his hands. Com. v. Stearns, 2 Mete., 343; Oolerain v. Bell, 9 Mete., 499 ; Hancock v. Hazzard, 12 Cush., 112; Packard v. Stinger, 36 Ind., in Am. Law Keg. for June, 1873, page 406 ; Look v. Industry, 51 Maine, 375.</p> <p>The tax-payer, illegally assessed or distrained, in order to recover, must prove the money paid into the treasury of the town. Lincoln v. Worcester, 8 Cush., 59.</p> <p>It is manifestly unjust to say that the collector is liable for the money, though lost, because it is his money, and liable as an embezzler, if he does not pay it over promptly, because it is the town’s.</p>

<p>Partition. B. S., c. 88, § 17.</p> <p>On a petition for partition the law does not authorize the commissioners to set off to one of the land owners, against his will, more than his proportionate share of the land, and require him to pay the difference in value in money to the other owners.</p>

<p>Landlord and tenant — liow relation is terminated.</p> <p>A lease at will may be determined by either party by a thirty days’ notice in writing, terminating on a pay-day of rent; but a landlord may terminate the same by a notice irrespective of pay-day, provided that when the notice expires any rent due before that time then remains unpaid.</p> <p>Where a tenant who terminates a lease at will by the statutory notice leaves rubbish upon the premises, he will be liable for any damages occasioned thereby; but such act will not necessarily amount to a waiver of the notice, or to a continued use and occupation of the estate.</p>

On exceptions. Reference is made to tbe opinion for tbe facts bearing upon tbe issues determined in tbis case, wbicb is brought bere upon exceptions by tbe defendants. It should have been made to appear that Mr. Hodgkins beard tbe testimony against him, fully understood, and did not deny it. 1 Greenl. on Ev., §§ 193, 196, 197; Ware v. Ware, 8 Maine, 42 ; Com. v. Kinney, 12 Mete., 237.

On exceptions. Assumpsit on five notes dated January 17, 1871, given by the defendant to Margaret Paine, formerly his wife, the plaintiff's intestate. In November, 1870, she libelled her husband for divorce on the ground of cruelty and entered her libel at the January term, 1871, of this court for this county. Upon the twelfth day of the return term, which was January 21, 1871, the defendant was defaulted and the decree of divorce granted as prayed for in the libel.

<p>Trustee process. B. S., c. 86, § 64 Set off and recoupment.</p> <p>In a process of foreign attachment, when the amount attached arises from a contract which has been broken by the principal defendant, the trustees, if liable at all, are only liable for the sum due under the contract after deducting the amount of damages suffered in consequence of the breach of it, by way of recoupment.</p> <p>The provision of E. S., c. 86, § 64, excepting from the right of set-off - by trustees, claims for “unliquidated damages for wrongs and injuries,” refers to independent claims and not to those accruing from the contract itself, which are, technically, matters of recoupment only.</p>

On motion eor a new trial. Trover against John Trickey and Gilman Cram for 2373 feet of hard wood plank alleged in one count to have been taken July 3, and in the other Nov. 25, 1872, the writ bearing date Nov. 26, 1872.

<p>Motion for new trial by plaintiffs on the ground that the ver-, diet for the defendants was against evidence.</p>

On exceptions. Indictment for the murder of John Ray, who left his house in Medway Plantation about six o’clock in the afternoon of the twentieth day of September, 1870, to search for a missing cow that was pastured near Reed’s premises, and never returned alive.

On report. Assumpsit on an alleged promise by tbe defendants to take three hundred shares of the non-preferred stock of the Bailroad Company, and to pay for them at their par value of one hundred dollars per share, made at Unity, February 19, 1868, in consideration of the plaintiffs’ promise to sell such shares for said sum of $30,000, to the defendants.

On exceptions. Assumpsit for money liad and réceived, brought under H. S., c. 66, § 13, upon a claim disallowed hy the commissioners of insolvency upon the estate of the late William Clewley, deceased, of whose will the defendant is executrix.

On pacts agreed, presented under R. S., c. 77, § 14. The plaintiffs, at London, Eng., procured the defendant’s vessel to be chartered for a round voyage at $33,300 to be paid in hard Spanish dollars, for which it is conceded that they are entitled to a commission of five per cent, on that amount, the only question being whether this $1665 should be paid in currency or in hard Spanish dollars, or their equivalent. cited Adams v. Cordis, 8 Pick., 260 ; Lodge v. Spooner, 8…

On eaots agreed. Debt on an administration bond, brought for the benefit of Ansel Lathrop, who recovered judgment by default against Sharon W. Kendall, as adminstrator of the estate of the late Waterman B. Kendall. Payment of the execution issued upon that judgment was demanded and refused, and the officer made his return of nulla bona thereon.

On exceptions and motion eor a new trial. Assumpsit upon an account annexed for cutting and hauling logs, the number and measurements of which were the matters in dispute ; the defendant conceding an indebtedness and offering to be defaulted for $77o, and the plaintiff claiming $1,171.61.

On report. Case against the defendant for digging a well on his own land whereby the waters of a living spring upon that of the plaintiff were diverted. Neither party supposed the well would have that effect when it was dug. The plaintiff supplied his house and barn by pipes from his spring, the water flowing naturally into tanks.

<p>Contract — rescission of. Exceptions. Payment absolute and conditional.</p> <p>If a creditor takes unconditionally a cash order drawn upon him, in satisfaction of his deht, the debt is thereby paid; if the order be taken conditionally the debt will be paid so soon as the condition is performed. Thus, where the condition is that the amount of the order is due one on account of whose labor it is drawn, and that sum is in fact then due him, performance of the condition and payment of the debt are simultaneous and instantaneous, although the fact that the amount was then due the laborer is not ascertained till some time after. It is the fact and not the ascertainment of it that constitutes performance of the condition and makes the payment absolute.</p> <p>Exceptions will not lie for a refusal to give instructions so abstract as not to plainly indicate their applicability to the circumstances of the case, and which, therefore, would afford no aid to the jury in coming to a correct conclusion.</p> <p>After a refusal by the plaintiffs to carry out an alleged agreement to allow upon the account in suit an order drawn upon them, the defendant took the order from them and carried it to an attorney for advice ; held, that an instruction that this constituted a rescission of the agreement was properly refused.</p>

On exceptions. Petition eor review of the action of Zachariah Ohipman v. Seth M. Todd, in which the then plaintiff recovered judgment at the October term, 1872, of this court for Washington County, upon a promissory note for one thousand dollars, dated October 18, 1869, payable in sixty days after its date to the order of Mr. Ohipman, signed by J ames M. Hall, and endorsed first by Rufus Ham and then by Seth M. Todd.

On report. Writ op entry for a lot of land in Hallowell. The tenant did not disclaim, but set up a title derived by deed from tbe demand-ant, as stated in the opinion.

On exceptions. Assumpsit on a promissory note purporting to be signed by the defendant, dated March 26, 1869, for fifty dollars.

<p>Banks — insolvent. Equity pleading. B. S. c. 47, § 74.</p> <p>A bill in equity brought under R. S., c. 47, § 74, maybe inserted in a writ of attachment.</p> <p>Where neither discovery nor an injunction is sought, the bill need not be signed nor verified by the complainant’s oath.</p> <p>A bill is not demurrable for want of parties, which states good reasons for not joining those, the omission of whom is assigned as a ground of demurrer.</p> <p>A stockholder in an insolvent bank, made respondent to a billin equity brought under R. S., c. 47, § 74, to enforce.payment of a fixed sum assessed upon each share of stock, is not injured by the non-joinder of any other stockholder; and, therefore, cannot sustain a demurrer to the bill for that cause.</p> <p>When the total sum to be raised by an assessment upon the stockholders of an insolvent bank has been determined by an adjudication of court, no errors in the computation of that sum can be taken advantage of upon a demurrer to a bill in equity brought to enforce payment of the assessment.</p> <p>If such a bill does not state that the notice mentioned in R. S., c. 47, § 45, has been given, a respondent cannot, by demurrer, avail himself of the limitation mentioned in that section.</p>

On report. Case submitted to the determination of the court, as the law and facts might require, and to award the damages, if any, to which the plaintiffs might be found entitled. July 12, 1870, Bartlett & Wood of Cardiner, Maine, (the plaintiffs) telegraphed to their correspondents at Chicago, 111., Hobbs & Co., to buy corn of a certain quality for them.

. Motion roe a new tbial by the demandants on the ground that the verdict against them was obtained by the effect of improper influences, brought to bear upon the minds of the jurors rendering it. The issue between the parties was as to the true location of the line dividing ■ their conterminous estates, and the testimony as to an alleged set-off in the wall between their respective buildings was conflicting.

On exceptions and motion for a new triad by the defendants to set aside a verdict rendered in favor of the plaintiffs for $120.17 for supplies furnished by contract to a pauper with whose support the defendants were chargeable. The facts and the law as stated at the trial sufficiently appear in the opinion.

<p>On exceptions.</p> <p>Debt on a bond given to the plaintiff, as sheriff of the county, in order to obtain the release of Currier from arrest upon a writ in favor of Silas Burbank. Submitted to the presiding justice with leave to except. A nonsuit was ordered upon the ground that this was a bail bond and scire facias the exclusive remedy upon it. The plaintiff excepted. He contended that debt in the name of the officer, and scire facias by the creditor were concurrent remedies; also that this was not a statute bail bond because it was conditioned that “Rufus O. Currier shall appear and answer unto said writ or process, and shall abide, do and perform the judgment of the said Supreme Judicial Court or the judgment of any other court before whom the said process shall in due course of law be finally determined, and shall not avoid, then the above obligation to be void : otherwise to remain in full force.”</p>

On exceptions. Case for so negligently placing boards in the highway, that the plaintiff, passing along the same in the exercise of the requisite degree of care, had his horse frightened by a rattling noise occasioned by a load of .barrels being driven over these boards, whereby he was thrown out and severely injured; as is more fully stated in the opinion. The presiding judge ordered a nonsuit and the plaintiff excepted.

On exceptions and motion for a new trial. In August, 1865, William Rollins, the plaintiff, agreed with Isaac Crocker, then the husband of the defendant, but since deceased, to put up a barn upon land belonging to Mrs. Crocker, for $125, the house in which Mr. and Mrs. Crocker lived, being upon a neighboring lot owned by Mr. Rollins. Twenty-five dollars were paid Rollins in advance by Isaac Crocker.

On report. Assumpsit for support in the Insane Hospital, furnished by West Gardiner, to a person whose settlement was asserted to be in Hart-land, on the twenty-first day of April, 1869, when the writ alleged that she fell into distress, and was committed to the Hospital. She was in fact committed there July 20, 1868, but the first board paid by the plaintiffs was from April 21,1869, which was paid Sept. 27, 1869.

<p>On report.</p> <p>In a real action brought by the present plaintiff against Samuel Morrill, the demandant recovered a small strip of land in Winthrop Village, as appears by the statement of that case and the plan in 52 Maine, 252, where the initial of Mr. Bonney’s middle name is erroneously printed H. The two feet claimed in that action were occupied by the underpinning of a building afterward erected by Loring Foss, with the pecuniary assistance of his wife, under authority from Morrill, which when built covered a little more of Bonney’s land. When it was determined by the result of the real action that Bonney had the better title, a compromise was effected, as stated in 57 Maine, 369, whereby Foss and his wife took a lease of so much of Bonney’s land as was covered by Foss’ building for a term of three years from Dec. 1, 1864, paying six dollars and twenty-five cents per quarter, with a proviso “that the' said Foss and his said wife may at any time while they continue to pay me the rent as aforesaid, remove so much of said building as now stands on my land at their own expense, and for their own use and benefit at any time during the three years aforesaid, and not afterwards without my consent.” This lease commenced with an acknowledgment of the receipt of the stipulated sum for one quarter’s rent of the land “and also for rent of so much of said building as is my [Bonney’s] property and standing on my land.” It was executed by Bonney alone and left with, tbe late F. E. Webb, Esq., for tbe benefit of both parties, the rent being paid to Mr. Webb, and by him passed over to Mr. Bonney. Erom tbe expiration of tbe lease Foss refused to pay any more rent, claiming that be notified Mr. Webb, at tbe time of paying it for tbe quarter ending Dec. 1, 1867, that be should make no more payments ; and this action upon an account annexed, for money bad and received, and for use and occupation of tbe premises was instituted to compel tbe payment of tbe subsequently accruing rent, at the same rate as previously paid.</p> <p>All other facts essential to an understanding of tbe matter are given in tbe opinion of tbe court.</p> <p>Boring Foss, though he bad not then tbe record title, was tbe party in interest to tbe former litigation, directed it, and is bound thereby. See Mr. Bibbey’s testimony, 87 Maine, 370. Pease v. Whitten, 31 Maine, 117; Footman v. Stetson, 32 Maine, 17. Mr. Morrill has since quitclaimed tbe premises up to Bonney’s line, to Foss; but that does not give him tbe legal title to so much of this block as is upon Bonney’s land; this still remains Morrill’s, unless it has become Bonney’s property by accession, and operation of law. In any event it does not belong to Foss.</p> <p>The defendant never having surrendered tbe premises nor been evicted therefrom, but continuing in tbe undisturbed occupancy of them cannot dispute our title. Longfellow v. Longfellow, 84 Maine, 240, and 61 Maine, 890.</p> <p>Though tbe result of tbe former litigation precludes us from claiming tbe strip of land then in dispute, we are not estopped to set up ownership of tbe building, tbe easterly end of which was in good faith, and under an honest belief that Morrill’s title covered this spot, placed a few feet over Bonney’s fine. If put there by a willful trespasser, or with intent to defraud Bonney of bis land, tbe building would become parcel of tbe realty; on tbe contrary, if put there by consent of the land-owner it would remain the property of Eoss. This is neither extreme, but between them; an honest supposition of title to the locus in quo and yet no actual right to it, the dispute arising from the plaintiff’s neglect to record his deed. Ronney v. Morrill, 52 Maine, 252. "We can find no adjudicated case identical with this; those most nearly analogous are Ryder v. Hathaway, 21 Pick., 298, and Smith v. Sanborn, 6 Gray, 134.</p> <p>If, as counsel say, this end of the building is still Morrill’s, Eoss is not bound to pay rent because of Morrill’s store being on Bonney’s land. There is no express promise to pay it, and no proof that anybody has actually occupied this segment of the building; and Mr. "Webb, who received the rents of Eoss for Bonney, was explicitly notified that the defendant would pay no more, which operated as a determination of the tenancy at the expiration of the lease.</p>

On report. Replevin of a wagon, which was sold by the plaintiff to Den-ham Campbell March 28, 1812, for ninety dollars, of which $25 were paid at the time the trade was made, and it was verbally agreed that the wagon should remain the property of Boynton, till the rest of the price was paid. The bargain and the $25 payment were made in the road at a distance from the place where the wagon was.

On exceptions. Debt, in which the county of Kennebec is summoned as the trustee of the principal defendant, who served at the October term, 1873, of said court for this county, as a juror fifty-four days and travelled thirty-two miles; for which he was found entitled to receive, under B. S., c. 116, § 11, (apcording to the report of the case) $112.52; and, on the nineteenth day of December, 1873, the last day of that term, the court ordered that sum to be paid Mr. Henry…

On report. Trespass for taking and carrying away sixteen casks of cider, a pitcher, tunnel, jar, gallon measure, tumblers, faucets and strainer.

<p>Bill in equity to subject property conveyed by debtor to his wife to the payment of his debt — under B. S., c. 61, § 1.</p> <p>A demurrer to a bill in equity brought by a judgment creditor under B. S., c. 61, § 1, to obtain payment of his debt from property conveyed to the debtor’s wife by direction of her husband (who paid the consideration therefor) in order to keep it from his creditors, will not be sustained, even though the bill contain no direct allegation of fraud.</p> <p>It is sufficient if the allegations of the bill meet the requirements of B. S., c. 61, § 1, last clause; setting forth the fact that payment was made for the property conveyed to her from the property of her husband, and that the creditor’s claim accrued before such conveyance.</p> <p>If an officer return upon the creditor’s execution that he could find no money, goods or chattels; wherewith to satisfy it, and therefore returns it wholly unsatisfied, this will be a sufficient return of nulla bona, without any statement that no real estate could be found upon which to extend it, .or that the debtor was arrested thereon to obtain a disclosure.</p> <p>In case of land paid for -by tbe busband, but tbe title taken by tbe wife, a creditor of tbe former, desiring to take tbe land in satisfaction of bis debt, can resort to equity, even tbougb be bas a remedy at law; and is not obliged to levy bis execution, if tbe busband never beld tbe legal title to tbe estate.</p> <p>Where sucb a bill, wliicb is not a bill of discovery, is inserted in a writ of 'attachment, tbe summons served on tbe respondents, is to be considered as a general interrogatory under our rules; and tbe respondents are entitled to answer all tbe material allegations of tbe bill.</p>

<p>On exceptions.</p> <p>The whole river front of the petitioner’s estate was more or less used and occupied, for a longer or shorter period, by the respondent corporation for the purposes for which it was chartered by Special Laws of 1859, c. 352, which are sufficiently apparent from its name. The petition, filed at the August term, 1870, of this court, represented that the company had, on the tenth day of March, 1868, taken and used the shore, flats and land adjacent of the petitioner for the erection of their boom which they had ever since maintained, and continued to use. the shore, &c., as aforesaid: that he could not agree with the company as to the damages that should be paid and asked for a committee to determine the amount, &c. At the August term, 1872, such committee were appointed and met the parties on the third day of September, 1873, when, according to their report'made to the October term, 1873, it appearing by the records of the Kennebec Log Driving Company, the defendants, and being admitted by them, that there had been no vote of the corporation, or its directors, to take any portion of the shore, flats or lands of the complainant for the purpose specified in the charter of the corporation, bnt the company’s servants had merely entered npon and used the same to some not certain and defined extent for these purposes; we are, therefore, of the opinion that we have no jurisdiction to appraise the damages and therefore return this commission to the court issuing it, and respectfully decline to serve further on said committee.” The defendants moved to have the report recommitted, alleging that at a meeting of the corporation held March 7,1867, it was “voted, that the directors be authorized to build the Brown’s Island boom the present season,” which was accordingly done; and, as a necessary consequence, when the logs filled the boom they rested upon and covered the petitioner’s shore so far as high water mark; and such occupation has ever since continued ; which is a sufficient taking within the meaning of the charter. The petitioner claimed to have his petition dismissed, and it was dismissed accordingly; and the respondents excepted.</p>

On report. Beplevxn of a chain cable, to which both parties claimed the title by having found it in the Kennebec river, near the dam, in July, 1870. When the plaintiffs discovered it, the chain lay coiled up in a little pile near a place which is dry when the dam is out, as it then was, the end of the cable running off toward the dam, in water about a foot or eighteen inches deep.

On exceptions. Trespass under R. S., c. 30, § 1, for injuries to the person of the plaintiff’s intestate by the defendant’s dog. The writ was sued out August 5, 1871, returnable tó and entered at the ensuing October term of this court for this county.

<p>Dower — widow’s claim not barred by a deed set aside as fraudulent.</p> <p>The dower of a surviving wife is not barred by a conveyance executed by the husband and wife which is set aside as fraudulent as against the creditors of the husband.</p> <p>Where a creditor avoids a deed from the husband to his wife on the ground that it is fraudulent and void as to him, the wife is nevertheless entitled to dower.</p>

On exceptions. Indictment alleging that John Stevens of Augusta, &c., on the twenty-third day of August, A. D., 1873, at Gardiner, &c, “seven national bank-bills, each of tbe denomination of twenty dollars and of tbe value of twenty dollars, of tbe lawful currency of the United States; six national bank-bills each of the denomination of ten dollars and of the value of ten dollars, of the lawful money of the United States; one pocket book of the value of one dollar, and one…

On exceptions. Debt upon a judgment in favor of the plaintiff’s intestate, H. Stratton, against Charles ~W. Hussey, recovered at the October term, 1868, of this court, for this county, for $109.43 debt, and $23.68 costs, with fifteen cents for the execution, entered up December 23, 1868. In the taxation of costs, $3.51 were allowed for the writ, and $5.25 for the service of it. The rest of these costs were for entry and continuance, travel and attendance.

On exceptions and motion eor new triad. Case, alleging that the defendant carelessly set fire to a pile of brush on. his own land and so negligently managed and kept the same that it escaped upon the contiguous wood lot of the plaintiff and did him great damage. The declaration contained, in one count, an averment that the acts of the defendant were done with an intent thereby to injure the plaintiff.

<p>Lowress — rights of. Levy of execution — effect of. Pleading.</p> <p>By a levy upon the real estate of his debtor, which has been fraudulently conveyed, a judgment creditor acquires the legal title to it, and can then maintain a bill in equity to remove the cloud which the fraudulent deed casts upon his title.</p> <p>A widow is entitled to a third of the rents and profits of real estate prior to the assignment of her dower therein, under R. S., c. 103, § 4, only when her husband died seized.</p> <p>Though entitled to dower, she has no claim to occupy any portion of the estate until it has been duly assigned.</p> <p>The plea of nul disseizin admits possession of the premises to be in the tenant, claiming a freehold therein.</p>

On facts a&reed. Assumpsit to recover a balance alleged to be due Mr. Farwell Upon his salary as judge of the police court of Rockland, for the term of four years from March 7, 1866. This power to fix the annual salary of this office was given by the act creating the court (Special Laws of 1861, c. 78, § 13) to the mayor and board of aldermen of Rockland, who on the twenty-fifth day of July, 1865, established it at $500 per annum, instead of its previous rate of $300.

<p> New trial for misconduct of juror. </p> <p>While an action against a town to recover damages for an injury occasioned by a defect in a highway is on trial, it is gross misconduct for one of the jurymen engaged in trying the case to visit the place where the accident occurred; to hold conversations with the inhabitants as to the condition of the road, where such injury was received, and of the changes since made in it, and with their aid to make measurements of the same.</p> <p>When the juryman so misconducting testifies that what he then and there saw and heard had great influence upon him in forming his opinion, it is good cause for setting the verdict aside.</p> <p>So, if he communicated to members of his panel what he saw and heard, who testify that they were influenced by what was thus communicated in forming their opinion of the merits of the cause.</p> <p>So, when the inhabitants, while the cause is on trial, hold conversations with one of the panel trying it, in relation to the merits of the case and calculated to influence his judgment, well knowing him to be one of such panel.</p>

On report. Assumpsit upon a count for money had and received, witb a count in case, charging the defendants as bailiffs and receivers of the plaintiffs.

<p>On exceptions.</p> <p>Case, ip which the plaintiff alleged himself to be the owner of real estate in Camden, • and that he is entitled by prescription to have access thereto by a way across the adjoining land of the defendants ; but that the defendants, on the fifth day of October, 1871, for the purpose of depriving him of its use, stopped up said way with posts and beams. The defendants denied the existence of the right claimed. The defendants obtained a verdict in their favor, which the plaintiff moved to set aside as against the weight of evidence, and upon newly discovered evidence; and also filed numerous exceptions to the rulings, instructions and refusals of the judge; but the only two points upon which his exceptions were sustained are so apparent from the opinion that no detailed statement of the facts is necessary. There was a conflict as to whether the use of the way and the building of the lime kilns to which it afforded access, were commenced in 1832 or in 1836; and there was testimony tending to show that it was originally used by license of Ebenezer Thorndike, senior, whose son (Ebenezer, junior) was a witness for the defendants, and testified to this fact. By. direction of Ebenezer, junior, the way was obstructed by timber for a while in 1851.</p>

<p> Probate law and practice. Administrator's compensation. Evidence. Exceptions. Onus probandi. </p> <p>The amount of compensation received by a special administrator upon an estate cannot affect the amount to 'which the administrators upon the same estate, subsequently appointed, are entitled; hence, the inventory returned and the account rendered by such special administrator are not admissible, upon the hearing of an appeal from a decree of the judge of probate allowing a certain sum by way of compensation to the administrators.</p> <p>Upon an appeal from such allowance in a second account of administration, the compensation allowed in their first account is not properly subject to revision; and exceptions to a ruling that such first account, having been passed upon by the judge of probate and not appealed from, could not properly be reviewed, with a view to fixing the compensation of the administrar tors in the second account, cannot be sustained when neither of the accounts is brought up with the exceptions, and there is nothing tending to show that the excepting party was injured thereby.</p> <p>If the word “reviewed” is to he understood in a technical sense the ruling is correct; hut such first account may and should he referred to, and it is competent evidence between the parties upon such hearing so far as the facts exhibited therein have a hearing upon the questions raised by the reasons of appeal.</p> <p>The burden of proof is upon the administrators, upon such an appeal, to establish their claim to the amount allowed therein as compensation by the judge of probate, and they have the right to open and close.</p>

<p> Equity practice upon exceptions to answer. </p> <p>Matter in an answer in equity may be generally regarded as impertinent, which cannot be put in issue, or given in evidence between the parties.</p> <p>The decision of a member of the court, under the eighth rule in chancery, whether allegations in an answer are impertinent or not, cannot be revised before final hearing, unless the decision is made in open court in term time as a part of the proceedings of the case, for the purpose of presenting important questions in a summary manner.</p>

On exceptions. Petition for an increase of the damages awarded to Mr. Lennox for land taken by the location of the defendants’ railroad.

<p>Distinction between town and private ways. S. S., c. 18, § 18.</p> <p>A town way may be laid out on the petition of an inhabitant, whether he is an owner or occupier of land or not; but a private way can only be laid out either for residents who occupy, or non-residents who own, cultivated land which such way will connect with a town or county road.</p>

<p>On exceptions to the acceptance of a report of a master in chancery.</p>

On exceptions and motion for new trial. Assumpsit upon a policy of fire insurance on a school-house, dated March 1, 1860 ; and a renewal thereof April 1, 1861, for one year. The writ is dated November 23, 1861. This case has been before considered by the court, on other questions raised by it. 54 Maine, 505. It was admitted, that proof of loss on May 11, 1861, was duly given and received, and that the house was of the value alleged in the writ.

On report. Replevin of four thousand tons of ice stored in the defendant’s ice-house at Boothbay, in this county, which the plaintiff company claimed had been sold by him to them, but that he refused to ship it in accordance with the terms of their contract.

On exceptions. Petition for certiorari to quash the proceedings of the respondents in laying out a town way in Dresden, which the selectmen of that town had refused to locate.

On exceptions and motion foe a new teial on tbe ground that the verdict and special findings of the jury were against law and evidence. This was an appeal from the decree of the probate court of this. county at its November Term, 1867, approving, allowing and admitting to probate certain instruments purporting to be tbe last will and testament of the late Mary W. Green, and a codicil thereto.

On exceptions. Trespass quare clausum for breaking and entering the plaintiff’s close in Topsham and cutting down a tree. The real purpose of the suit was to determine thé location of the plaintiff’s line between himself and Mr. Joseph L. Jack, father of the defendants, who admitted the cutting and justified it as done by the direction of said Joseph, as the owner of the premises.

On exceptions. Trespass de bonis for taking and carrying away twenty bottles of ale belonging to tbe plaintiff, and taken by the defendants from her father’s cellar. The defendants justified under a search warrant, the essential portions of which, together with the other facts necessary to an understanding of the question presented, are fully stated in the opinion.

<p>On exceptions.</p> <p>The plaintiff was a farmer with considerable money at interest, and the defendant, who was also accustomed to let out quite large sums of money, was professedly a friend of Mr. Hunter, in whom Hunter placed great confidence in regard to the investment of his surplus funds. Ezekiel Oliver, who, for several years prior to the transactions out of which the present litigation originated, had borrowed frequently of Randall, at high rates of interest, and was largely indebted to Randall and others, beyond his ability to pay, in 1868, built a mill upon leased land, at Parker’s Head. At the time he first thought of building, he was unacquainted with Daniel Hunter; but in June of that year the defendant introduced these gentlemen, carrying Oliver to Mr. Hunter’s house, and recommending him, (Oliver) as the plaintiff and his witnesses testified, as a very honest man, deacon of the church, and abundantly able to meet all of his liabilities. By these means he then procured a loan of $500 for Oliver, and by similar representations, upon several other occasions' afterwards, Hunter was induced to lend Oliver other sums, amounting in the aggregate to about three thousand dollars. All of these loans, part of which were in notes and bonds that could be, and were, turned into money, passed from Hunter, through Randall’s hands, into Oliver’s, and were, in part, subsequently applied upon Mr. Oliver’s indebtedness to Mr. Randall. The only security Mr. Hunter had was a mortgage upon the mill built with part of his money, which his witnesses swore was ntterly worthless as a mill, and that it would cost all the timber was worth to move it away. There was some testimony relative to statements made by Randall to Hunter as to the value of the mill, and of other property, which he said Oliver owned'at Parker’s Head; affirming that the mill was a good investment, sufficient security, &c. He charged Oliver for his services in procuring these loans of Mr. Hunter. The plaintiff had fallen into intemperate habits to an extent that impaired his capacity to look carefully after his property and investments.</p> <p>Upon these facts the plaintiff based this action for money had and received.</p> <p>In the course of his charge the judge said: “So, in this case, if this defendant has wrongfully or fraudulently induced this plaintiff to loan this money, and obtained it by this means, it is immaterial to the plaintiff whether he afterwards paid it over to another person, for whom he obtained it. It is immaterial to the plaintiff that he told him, at the time, that he obtained it for another.” * *</p> <p>“It would not relieve him, that he gave it to another person, that he spent it, or that he devoted it to the purpose for which he obtained it, though it might not be for any purpose of his own.” * * * “They must satisfy you, in short, of the representations, the falsehood of them; that the defendant knew they were false when he made them, and made them for the purpose of obtaining money; and that the plaintiff, in the exercise of such prudence, care and discretion as his capacity would enable him to use, relied upon them, and parted with his money in consequence of them ; in other words, that the money was obtained from him by the defendant by false representations, which were material to enable him to make up his mind, and come to a conclusion as to whether it was safe to loan the money to Mr. Oliver.” * * * “If he has thus dealt dishonestly with this man, the law requires that he should make amends.” “ * * “But if there was a fraud, and the plaintiff was in consequence induced to part with his money, then the plaintiff would have a claim upon him.” * * *</p> <p>“If then, upon these principles, you come to the conclusion that he is liable, the next question is as to the amount; and all I have to say upon this point is, simply, that he is liable for such amounts of money, or its equivalent, as he has obtained by means of this fraud, with interest on the same from the date when the defendant received it.”</p> <p>There was nothing in the rest of the charge to modify the instructions thus given.</p> <p>The plaintiff obtained a verdict for $3,503.50.</p> <p>To the instructions which we have quoted, the defendant took exceptions.</p>

On report. Writ of entry to recover a parcel of land, with the dwelling-house thereon, in the city of Bath. The demandant claims title under a levy of a writ of execution issued upon the judgment sought to be reversed in the case of Prescott v. Prescott, 59 Maine, 146.

On exceptions. Writ of entry referred by rule of court to Hon. Charles Dan-forth, who reported, at the August term, 1872, “that the blue line ■ as marked on Hayden’s plan of November 21,1869, is the true line between the parties, and that the plaintiff is entitled to judgment for the land claimed by him in his writ.” To the acceptance of this report the tenant objected, on account of its containing this statement, as assuming to decide a question not embraced in the…

On report. Trespass guars clausum. By agreement of parties the case was submitted to the determination of the presiding justice without the intervention of a jury, the defendants reserving the right to have a single question of law arising in the case determined by tiie full court.

On exceptions. Case, brought under R. S., c. 51, § 22, to recover for injuries done to the plaintiff’s land and buildings by rocks thrown by blasts out of excavations made in the course of the construction of the defendant’s road-bed.

<p> What demand and refusal are evidence of conversion. </p> <p>Refusal to comply with a premature demand of an article is no evidence of an intention to convert it.</p> <p>A second demand tends to prove a waiver of the prior one.</p> <p>To have the effect of a proof of conversion, the refusal to deliver upon demand must be such as to amount to a denial of the plaintiff’s right, and he made by one who has it in his power to make delivery of the article demanded.</p>

On exceptions. At tbe December term, 1871, tbis action, brought to recover possession of certain premises in Bath, was referred to Hon. Bufas P. Tapley, the justice presiding, who heard the parties and permitted the tenant to file a paper' in the nature of a disclaimer.

On motion for a new trial. Case, alleging that Andrew Morse and his predecessors in title to the premises described in the writ, for more than forty years prior to the first day of July, 1871, had and enjoyed a certain aqueduct, and the right to the water flowing therein, from a spring upon the defendant’s land; but that on the sixth day of July, 1871, said Williams deprived the plaintiff of the aqueduct, and of the use and benefit thereof, by plugging up the pipes, and…

<p>Action of Assumpsit — when it lies for a legacy.</p> <p>One to whom a bequest of $200 had been made in his father’s will, — the fund to be placed in the hands of the executor for the use and benefit of the legatee as he may need it, he not to receive any more than was necessary for his benefit at the time — died before any part of his legacy had been paid him, and his administrator brought this action at law to recover the amount and interest of the estate of the'executor, who had also given bond as testamentary trustee, and had commingled this money with his own personalty instead of keeping it separately invested as a trust fund; held, that the plaintiff was entitled to recover, and neednotresort to proceedings in equity.</p>

On pacts agreed. The town of Lisbon, at a legal meeting, holden March 7, 1864, voted to exempt the plaintiff corporation, by name, from taxation, for the term of ten years, agreeably to the provisions of the act approved April 1,1859, c. 91; but in 1869 the assessors of Lisbon assessed a tax of $1404.20 upon the property of the plaintiffs, which they paid under duress and protest, and then brought this suit for its recovery, submitting the question of the legality of its…

On exceptions. Assumpsit to recover for use of office furnished by the plaintiff for the Auburn Police Court for the city of Auburn, during the years of 1869 and 1870, he being the judge of that court from June 7, 1869, to March 20, 1871.

On exceptions. The respondents demurred to the complaint because it contained no allegation of the respondents’ ownership of the land upon which the dam which caused the fiowage was erected and maintained. The demurrer was overruled and the respondents excepted.

<p> Promissory note. Indorser, demand on. Nvidence, notice to 'produce. Notice. </p> <p>The presentment and demand of payment of a promissory note at a former place of business, or former residence of the maker, are not sufficient to charge the indorser.</p> <p>But presentment and demand of payment at the maker’s residence on the day the note falls due, is a sufficient presentment and demand, though he is not found at home.</p> <p>It is competent for the notary who protests the note to testify to the contents of the notice, sent by him to the indorser, though no notice has been given to the indorser to produce such notice at the trial.</p> <p>It is not necessary to name the payee of the note in the notice to an indorser who is himself the payee, provided it contains other matters descriptive of the note, sufficient to identify it and to charge the indorser.</p>

On exceptions. Trespass de bonis brought by a citizen of Lewiston against one claiming to act as collector of the taxes of the town of Greene for the year 1870, who, in that capacity, distrained a pair of steers and a cow belonging to Mr. Carville, in order to obtain payment of a tax of $25.50 assessed upon land of that gentleman lying in the town of Greene.

On exceptions. 'This was an action on the case for injuries received while employed by the defendant corporation in repairing its track-bed under the supervision of its road-master. The defendants filed a demurrer which was sustained, and the plaintiff excepted.

On exceptions. Trespass on the case for an injury received on tbe night of December 10, 1871, through a defect in Horton street, Lewiston, a way which the city was bound to keep in repair. The plaintiff and her twin sister, then twelve years of age, had been passing the afternoon with a sick friend, and returned home to their father’s house on said street, at about seven o’clock, it being a very dark evening, and went into the front entry.

On motion for a new trial, upon the ground that the verdict for the defendants was against law and evidence. The plaintiff was an itinerant vender of millinery goods which, for several years, he has been accustomed to sell throughout this State.

<p> Parol testimony inadmissible to show written instrument incomplete. Only a party injured can except. </p> <p>Parol evidence is inadmissible to prove a contemporaneous agreement that a written instrument, which appears upon its face to be (July executed, intelligible, unambiguous, reasonable and complete, should be considered only as the basis or outline of a contract to be subsequently filled out with stipulations other than those contained in the writing.</p> <p>Though incompetent testimony be admitted at the trial, exceptions will not lie, if it is apparent from the nature of the testimony itself that the excepting party was not injured thereby.</p>

On exceptions. Writ of entry to recover possession of one half of the southerly quarter of the Witham farm in Auburn, claimed by the demand-ant by inheritance, as sole heir of her deceased mother, who was one of the four heirs of the late Ezra Witham, who died, seized and possessed of this farm, in 1825. The town of Auburn was then part of Cumberland county.

<p> Practice upon the death of a party after verdict. </p> <p>An action on the case brought by husband and wife for a personal injury to the wife, cannot proceed after the death of the wife except in the name of her legal representative. The husband should withdraw as an original party; but when appointed administrator of the wife’s estate may come in and prosecute in that capacity.</p> <p>Where, after verdict for the plaintiffs in such case, and pending the hearing and decision upon the defendant’s exceptions in the Law Court, the wife dies, and her death is not suggested upon the docket, and the clerk, upon the overruling of the exceptions, enters up, and. records a judgment as of a term subsequent to the death of the wife in the names of the original plaintiffs, such judgment and record are irregular and null; and the court, upon a written motion, of which the defendant has notice, will order the action brought forward upon the docket in order that a proper judgment may be entered in the manner above stated.</p> <p>When no proceedings have been had upon the former irregular judgment, and justice requires it, and third parties are not affected thereby, upon the appearance of the husband as administrator, the court will order judgment upon the verdict in the action thus brought forward.</p>

<p>On exceptions and motion for a new trial, because the verdict is against the law and evidence.</p> <p>The action was case for a short delivery of corn sent over the Grand Trank Railway on its way from Chicago to the plaintiffs, at Auburn, Maine, the deficiency alleged being little over eight thousand pounds, worth about a hundred and sixty dollars. The defence was that the defendants’ bill of lading, or railway receipt, given to the plaintiffs, contained an express condition, or notice, that the company would “not be responsible for any deficiency in weight or measure of grain, &c., in bags or in bulk,” which the defendants’ counsel (substantially) requested the court to instruct the jury was a bar to this suit, but the presiding justice held the contrary, and the defendants excepted. The verdict was for $179.86.</p>

On exceptions and motion for a new trial. Trover for a taking by the defendant of thirty-two cords of wood, cut upon land owned by one Martin, who bought the farm of Jordan, and mortgaged it back to secure the purchase-money. After the wood was cut, and before its removal from the land, Mr. Jordan took possession to foreclose his mortgage, Martin having before then sold the wood to one Leonard, who subsequently sold it to the plaintiff.

On exceptions. Complaint for flowage under R. S., c. 92, entered at September term, 1868, and verdict rendered for the complainant at the January term, 1870. The defendant took exceptions which were overruled; 59 Maine, 256.

On facts agreed. Assumpsit upon an order, copied into the opinion, one of several drawn by James Hibbard upon the defendants. The company acknowledged the reception of this order in two letters, one of which appears in the opinion, both promising, in effect, to pay, upon final settlement, whatever balance was found due Hibbard, so far as necessary to cancel his orders. The defendants kept this order in their possession.

<p>On agreed facts.</p> <p>Assumpsit to enforce a lien. Writ dated Not. 6, 1866. June 1, 1866, Thos. Doughty was the owner of the real estate mentioned in the writ, and then contracted with the plaintiff to repair the house standing on the premises, which he accordingly did. Not being paid for the labor and material furnished he brings the present action to recover their value, and claims a lien upon the property to secure this indebtedness to him. On the fourth day of July, 1866, the defendant conveyed the estate to one Franklin, who conveyed it Sept. 6, 1866, to Almira W. Davis, by deed of warranty duly recorded before the date of the writ. ■ The defendant removed from this State before suit brought, so no personal service could be made upon him, but notice of the pendency of the action was given by publication, to which he did not respond. At the January term, 1870, of this court, upon plaintiff’s motion, a summons issued to Almira W. Davis, who ever since its conveyance to her has continued to own this real estate, to appear at the April term, 1870, of this court and show cause why a judgment for lien upon said building and lot, as claimed in the writ, should not be entered in the case. At the term last named, she appeared specially and protested that no law authorized the plaintiff to so summon her in, and that she can not legally be made a party to this action. Thereupon it was agreed to submit the ease to the law court upon the following questions:</p> <p>“I. Is the said Almira W. Davis legally made a party to this suit by the proceedings above recited ?</p> <p>II. If not, if she voluntarily appears and contests the existence of the alleged lien, will the judgment of the court in respect to such lien be binding upon her and the plaintiff ?</p> <p>If either of these questions is answered in the affirmative, the case is to stand for trial; but if both are answered negatively, the case is to be dismissed as to Almira W. Davis, Avithout prejudice to either party.”</p> <p>These proceedings are under Public Laws of 1862, c. 131, § 2, the phraseology of which is different from that employed in the former or present revision.</p> <p>This is purely a statutory proceeding and must be carried on in strict conformity thereto. It contains no provision for citing in any present owner of the estate; so my client, properly, is neither compelled to appear on summons, nor authorized to appear voluntarily.</p>

On exceptions. Case, for a nuisance committed by the defendants in filling up the bed of the plaintiffs’ canal. The writ was dated December 9, 1870, returnable to the January term, 1871, of this court for Cumberland county.

On exceptions to the ruling of Goddard, J., of the superior court. Indictment for an alleged libel. In the progress of the trial the prisoner’s counsel formally admitted the publication complained of to be a libel, but denied that it was malicious.

Bill in equity. This bill of complaint was brought under the Public Laws of 1864, c. 239, § 1, by ten taxable inhabitants of the old school district No. 5 in Harpswell, which they claimed still existed as originally established, against the three defendants, selectmen of the town, alleging that these officers should have apportioned a due proportion of the school money of the town to this district, but that they refused to do so upon the ground that it had been legally…

<p>Equity. Mistake — what is sufficient proof to authorize the court to reform an instrument.</p> <p>When an insurance company undertakes to insure the charter of a vessel after being informed that no copy of the charter has been received, and it is not known how many ports she will be required to use, and through mistake the policy is so written as to limit the vessel to the use of one port, when in fact her charter requires her to use two, a court of equity will order the policy reformed so as to describe the voyage correctly.</p>

On exceptions to the ruling of Lane, late justice of the superior court. Debt on a judgment in favor of the plaintiff, as surviving partner of the late firm of James Bailey & Company, dissolved by the death of the other member, William Bailey.

On exceptions to the ruling of the justice of the superior court. Assumpsit to recover $57.90 for labor performed by plaintiff for the defendants in their grist mill.

On report. David Owen, the defendant’s intestate, was a member of the firm of Owen & Company, doing business at Bath, in December, 1865, and the plaintiff 'was the deputy at Brunswick of George W. Parker, Esq., then sheriff of Cumberland county.

<p>On exceptions.</p> <p>July 16, 1872, the complainant, as deputy of the sheriff of this county, seized thirty-four casks of intoxicating liquors, of the value of fifteen hundred dollars, upon a complaint made to the municipal court of the city of Portland, under R. S., c. 27, § 35, and warrant issued thereon, alleging that they were deposited and kept for the purposes of unlawful sale, by James McGlinchy and John JEL. McOue, in the basement of the store numbered 118 on Fore street, in said Portland. The liquors were, on the eighteenth day of July, 1872, libelled by the seizing officer, and a monition issued for any person interested to appear and claim them on the thirty-first day of that month, at nine o’clock in the forenoon; no one then appearing to claim them they were adjudged to be forfeited; but, prior to this date, to wit, on the twenty-seventh day of July, 1872, they had been taken from the possession of Mr. Adams, by Charles H. Hall, a coroner, upon a writ of replevin, sued out by McGlinchy against Adams, dated July 27, 1872, returnable to the term of this court, holden at Portland, on the second Tuesday of October, 1872; but, after the liquors were replevied, it was discovered that the replevin bond was for only $1500, the single, and not the double, value of the liquors ; therefore, no personal service was made upon Adams, nor was the writ ever entered in court. Thereupon, at the return term of the replevin writ, (October term, 1872,) Adams made this complaint, stating these facts, that the coroner had not possession of the writ, but had given it to Mc-Glinchy’s attorney ; and praying that McGrlinchy might be required to file a copy of it, to pay the costs, and to return the property replevied, and pay the damages occasioned by its taking and detention. The court ordered a return of the liquors and decreed costs, and the respondent excepted.</p> <p>The practice exists where writs are served and not entered, to file a complaint and obtain judgment for costs; but there is no precedent for attempting to try, on such complaint, the issues of the original action. How could the court order a return ? The petitioner filed no copy of the replevin writ; moved for no rule upon the officer to return it; but merely prayed this court, sitting as a court of law, to order McGrlinchy to file a copy ! a thing not within the common law jurisdiction of this court to decree.</p> <p>The complainant has an ample remedy at law. Since the writ was not returned, the officer cannot justify under it, and he and McGlinchy are both liable, unless they can show that Mr. Adams had no title to the liquors, and that one of them had.</p> <p>R. S., c. 96, § 19, recognizes this mode of procedure. This remedy is peculiarly appropriate in a case like the present, where a return of the specific articles should be compelled, that they may be properly dealt with by the municipal court, from whose custody they were taken.</p>

<p> Evidence. </p> <p>A physician who leaves a patient, at a critical stage of the disease, without reason, or sufficient notice to enable the party to procure another medical attendant, is guilty of a culpable dereliction of duty; hence, it cannot be said, in an action against a physician for such alleged misconduct, that a conversation between the patient and a third person, which tended to show the former’s ignorance of the doctor’s absence from town, is so irrelevant as to make it immaterial whether the exclusion of part of that conversation was proper or improper.</p> <p>Where a witness, called by the defence, relates a portion of a conversation, stating that he heard no more because he then left the room, the plaintiff cannot properly be prevented from introducing other witnesses to prove the whole conversation, including that which occurred after, as well as before, the first witness left the room.</p>

<p>Bill in equity, under R. S., c. 77, § 5, item seventh, to obtain a construction of the will of the late Sarah K. L. Baxter, who died January 12, 1872, leaving six children, the eldest of whom was seventeen at that time. The youngest, Alba, was three years old when her mother died, and this child also died on the twelfth day of February, 1873. The decedent constituted her husband, James P. Baxter, executor of her will, but he subsequently resigned that trust, and became guardian of his surviving children. In his answer to the bill, individually and officially, he submitted to the determination of the court as to the real meaning of the will, and represented that the farm in Gorham was bought in May, 1871, for $6000, and that over $15,000 had been afterward expended in buildings and improvements upon it, making it very valuable; but that it had become necessary for his own' welfare, and that of his wards, in the prosecution of his business, that they should remove into Portland, where he had purchased a homestead; that the farm could neither be leased nor carried on by him, to advantage, so as to derive any profit or income therefrom, but would greatly depreciate in value in his absence ; that it was his desire and purpose to sell it, which he could readily do but for the cloud which the dubious provisions of the will cast upon the title.</p> <p>These proceedings were of an amicable nature, the Association of the New Jerusalem church in the State of Maine, (called by a slightly different name in the will) also appeared and submitted to the jurisdiction of the court. The provisions of the will which ' the court were asked to construe are stated in the opinion.</p>

On exceptions. Assumpsit upon an account annexed. The count in the writ was in the common form, but the account' referred to as annexed thereto was this: “George Davis to Andrew Bennett, Dr.” “To groceries as per bill of particulars rendered, $28.52.” At the entry term of the action, the defendant filed a demurrer which was joined by the plaintiff and overruled by the justice presiding, and the defendant excepted.

On exceptions and motion por a new trial, by the defendant because the verdict for the plaintiff was rendered against law and evidence, and for an excessive amount, $400. The action was trespass quare clausum, instituted by a lessee against his lessor for an entry upon and injury to premises, to the use of which the former had a right under a covenant in his lease.

On exceptions to rulings in the superior court. Assumpsit for rent from July 1 to August 26, 1872, at fourteen dollars a month, amounting to twenty-six dollars and thirteen cents. The defendant hired the leased premises of the plaintiff just before the first of June, 1872, at the rental above stated, payable.monthly. The month’s rent due July 1,1872, ($14,) was paid on that day.

On exceptions to the ruling of the justice of the superior court. There was also a motion for a new trial filed by the defendants, upon the ground that the verdict for the plaintilf was against law and the weight of evidence; also, because the damages, assessed by the jury, at $9,500, were excessive. The plaintifi’s injuries were of a very severe and painful nature, and at the first trial of the cause the verdict was for $8,166.

On facts agreed. Assumpsit upon a promissory note for $5000, dated August 31, 1866, made by Bradley, Coolidge & Rogers, payable in four months from date, at any bank in Portland, to. the order of Edwin R. Wiggin, indorsed by him, by Jane M. Bradley, and by Jefferson Coolidge & Company (the plaintiffs) in the Order named.

<p> Mortgagee must account to dowressfor all profits received while in possession. </p> <p>Where the widow of a mortgagor institutes proceedings in equity to redeem the mortgage, in order that she may be let in to her dower, the mortgagee is liable to account to her for the rents and profits received from the date of his entry into the possession of tbe premises under the mortgage sought to be redeemed; not merely from the time that an account is first demanded of him by the dowress.</p>

<p>On facts agreed.</p> <p>Assumpsit. Tbe writ, dated March 21, 1872, contained only this count: “in a plea of the case, for that the said defendant, at said Portland, on the day of the purchase of this writ, being indebted to the plaintiff in the sum of six thousand dollars, for so much money before that time paid and expended by the plaintiff to the use of the defendant, and at the defendant’s request, and interest thereon, from June 11, 1870, in consideration thereof, then and there promised the plaintiff to pay him said sum on demand.” Below the count was this specification:</p> <p>“Mem. The claim on which this suit is based, is a check of Joseph Hobson, dated June 11, 1870, for $6000, to order of defendant, and by him indorsed to plaintiff, on First National Bank of Portland, indorsed waiving demand and notice, payment of which has been refused. W. L. Putnam, plaintiff’s attorney.”</p> <p>To support his declaration, the plaintiff offered the check named in his specification. It was given under these circumstances: The maker, Joseph Hobson, desiring to obtain a loan from Mr. Emery, went to that gentleman’s office for that purpose, on the eleventh day of June, 1870. Emery agreed to lend the money, but required to have Joseph Hobson’s check for the amount made payable to the defendant’s order, and indorsed by him; accordingly it was so written, and signed by Joseph Hobson, as evidence of the loan, in Mr. Emery’s office; and in exchange for it, at the same time and place, and upon Joseph Hobson’s agreement that Frank should indorse as required, the check of Mr. Emery, payable to Joseph Hobson, was delivered to the latter, who carried it immediately to the First National Bank of Portland, where it was deposited, and credited to Joseph Hobson’s account. Mr. Joseph Hobson then went to his own office, where he saw his son, the defendant, and told him he had obtained this loan of Mr. Emery, and given this check payable to Frank’s order, agreeing with Emery that Frank should indorse it, and requested that he should go to Mr. Emery’s office and do so.</p> <p>This was the first knowledge Frank O. L. Hobson had of the matter, or of the check in suit. He acceded, however, to his father’s request, went to Mr. Emery’s office, and there indorsed the check. Immediately after Frank made his indorsement, Emery asked him to put over his name the words “waiving demand and notice;” this he also did, which was all that was ever said by any party to the paper about the nature of the indorsement.</p> <p>Frank O. L. Hobson had no pecuniary interest in the check, but indorsed it solely for his father’s accommodation and upon his request, as aforesaid, as the plaintiff well knew.</p> <p>The check was never presented to the bank upon which it was drawn till July 14, 1871, when its payment was there demanded by the plaintiff’s attorney and payment refused. In the mean time Joseph Hobson had failed, and been obliged to compromise with his creditors; the plaintiff and some others refusing to enter into such compromise, and still holding their claims against him.</p> <p>The defendant objected to the admission of the check in evidence ; but it was agreed that if it were admissible to support the plaintiff’s declaration, and the action could be maintained upon the facts above stated, and the inferences a jury might properly deduce therefrom, the defendant is to be defaulted; otherwise, judgment was to be entered in his favor and for his costs.</p> <p>I. Joseph Hobson obtained money for this check upon consideration that the defendant was to indorse it; and, for this reason, it was made payable to the order of the defendant, who was fully informed that it was part of the consideration that he should indorse it. He assented and did indorse it. It might have been shown that if he had not done so, the plaintiff woukj have been entitled to return the check to Joseph Hobson, and demand the money paid for it; and that, probably relying upon the defendant’s assent to the arrangement, he did not do this. So, the defendant is estopped.</p> <p>This, however, is not necessary; as in law, this was all one transaction, and is of the same effect as though all parties were actually present, and the indorsement completed simultaneously with the rest of the transaction.</p> <p>H. The delay in demand of payment was expressly waived by defendant; and was clearly the desire of all concerned. While parol evidence may not be admissible to turn this check into a note, yet the fact that it was regarded as a loan by all the parties, is admissible to shut the mouth of a surety on the question of laches, even had there not been an express waiver:</p> <p>III. The form of action is proper. The defendant, being an accommodation indorser, the check is evidence of money paid at the joint request of the maker and of the indorser. Independently of this, while the early practice in relation to the money counts was to regard the letter of the pleadings, lately the money counts are used indiscriminately in suits upon negotiable paper. Chitty on Bills, (eleventh Am. Ed.,) *579 — *582; Wild v. Fisher, 4 Pick., 421; Cole v. Cushing, 8 Pick., 48.</p> <p>Upon the facts stated, two questions present themselves :</p> <p>First. Is the evidence offered by the plaintiff admissible under this form of declaration ?</p> <p>Second. If admitted, is the defendant liable under the circumstances of this case, as reported ?</p> <p>I.</p> <p>I. If the check be not admissible, ordinarily, to support this count, the specification cannot make it so, any more than if a judgment, or claim for unliquidated damages, were specified.</p> <p>“Although a specification, when it describes a cause of action consistent with the declaration, and one that can properly be proved under it, becomes and is treated as part of the declaration, yet a specification cannot enlarge, alter, or amend a declaration.” Pickering' v. PeRochemont, 45 N. H., 67.</p> <p>It limits the proof to the cause of action specified, Id., Parker v. Emery, 28 Maine, 492 ; Gooding v. Morgan, 37 Maine, 423 ; Butler v. Millett, 47 Maine, 492; Bapham v. Briggs, 1 Wins. (Vt.) 26; McQuestin v. Young, 19 N. H., 307; Man. da Bmw. P. P. v. Fisk, 33 N. H., 297; Starkweather v. Kittle, 17Wend., 20; Bowman v. Earle, 3 Duer., (N. Y.) 691.</p> <p>But while it indicates the particular claim to be proved, it does not enlarge the class to which such claim must belong.</p> <p>II. To recover, the plaintiff must establish his cause secundem allegata etprobata. 1 Greenl. on Ev., § 78. Smith v. Wheeler, 29 N. H., 334; OoTburn v. Pomeroy, 44 N. H., 19; Matthewson v. Eureka Works, Id., 291; Child v. Eureka Works, Id., 358 ; Young v. Woodward, Id., 250.</p> <p>As said in Smith v. Wheeler, “the consideration of the contract must be truly stated and proved as laid.” 29 N. H., 334. Same language in 44 N. H.; 19.</p> <p>The count here is “for money paid,” &c.; what does this legally import ? The essential elements are : (1) a payment, (2) of money, (3) by the plaintiff/(4) for (or at request of) the defendant.</p> <p>I. It must be money that is paid; otherwise this count will not lie. 2 Bouv. Law Diet., 185, citing Morrison v. JBerlcey, 7 S'. & R.,246; Slaymaker v. Gundacker, 10 S. & R., 75 ; Doubler v. Fisher, 14 S. & R., 179; Taylor v. Higgins, 3 East, 169.</p> <p>We do not contend that Emery’s check was not the same as money; we admit it was; but we only wish to show what must be proved under this declaration, and the strictness of proof required.</p> <p>II. There must be a payment of money.</p> <p>So, while we concede the check given by Emery to be equivalent to money, we say it was delivered as a loan to Joseph Hob-son, and not as a fayment on account of this defendant.</p> <p>What is a payment ? Webster defines “to pay” thus: “1, To discharge a debt; to deliver to a creditor the value of a debt, either in money or goods to his acceptance or satisfaction, by which the obligation of the debtor is discharged.” Webst. Diet., h. t. Bouvier says, 2 Law Diet., 820, (1 Inst., 313, § 807,) “By payment, is understood, every way by which the creditor is satisfied, or ought to be, and the debtor liberated.”</p> <p>There must have been a liability on the part of the defendant to the recipient of the money, existing prior to its delivery to sustain this action. Spencer v. Parry, 3 Ad. & El., 331 — S. C., 4 N. & M., 771, cited infra ; 1 Stephn’s N. P., 317, citing Alcinbrook v. Hall, 2 Wils., 309; Moore v. Pyrke, 11 East, 53; Power v. Hutcher, 10 B. & C., 346; 1 Chit, on PL, *350 ; Taylor v. Higgins, 3 East, 1.69.</p> <p>It must have been a payment by plaintiff to cancel a debt of the defendant’s, and have this effect. See authorities supra and passim. So, “where the sum which plaintiff has paid is in the nature of unliquidated damages or costs, and cannot be considered as strictly paid in discharge of a debt due from the defendant,” &c., &c., the declaration must be special. 1 Stephn’s N. P., *317.</p> <p>III. Such payment must have been made not only “to the defendant’s use,” but “at his request.” “Assumpsit lies to recover money paid for another at his request.” 1 Stephn’s N. P., *317, citing 2 Wils., 309. The next sentence is, “To sustain the com-mon count for money paid by the plaintiff to the defendant’s use, and at his request, it is essential that the plaintiff should have paid his money for the defendant.” 3 Stephn’s N. P., *317, citing 11 East, 53, &c., &c.</p> <p>Chitty, to the same effect, says: “If money be lent to a third person at defendant’s request, and both be liable to repay it, the one on a loan, and the other in respect of his collateral engagement, which must be in writing, the count against the latter must be special.” 1 Chitty on PL, *350, citing 1 Saund., 211, b, &c., &c.</p> <p>Mr. Chitty continues, in the next succeeding paragraph: “To sustain the common count for money paid by the plaintiff for the defendant’s use and at his request, it is essential, first, that the plaintiff should have paid money for the defendant; and secondly, that such payment should have been made at the defendant’s request, express or implied.” Id., citing 10 B. & C., 346, and other cases cited supra.</p> <p>In Spencer v. Parry, 3 A. & E., 331, before mentioned, the defendant took a house from the plaintiff agreeing to pay certain taxes for which the landlord was liable by statute; the plaintiff having been obliged to pay those taxes through defendant’s default, sued him for “money paid.” It was held that the action could not be maintained, bnt should have been upon the special agreement. “The plaintiff’s payment,” (said the Lord Ch. Just., in the opinion,) “delivered the defendant from no liability except what arose from the contract between them.” [Here defendant was delivered from no liability.] “The tax remained due by his default, which would give a remedy upon the agreement, but it was paid to one who had no claim upon him, and, therefore, not to his use.'” [Mem. The words italicised here are italicised in 1 Smith’s Lead. Oas., 534 — *74]</p> <p>To the same effect is the case of Lubbock v. Tribe, 3 M. & "W., 607. Tribe gave his check for money due from him to the K. Co., the plaintiffs receiving it as the company’s agents. It was afterward lost, and the plaintiffs agreed with the defendant that he should give a new check, on their indemnifying him. No new check was given, but the plaintiffs, having been obliged to pay the amount, brought this action for money paid, which was held not sustainable. “On the special agreement,” (said Parke, Baron) “I think an action might be maintained, but not for money paid, because the payment of-the money did not exonerate the defendant from any liability at all. It is not money paid to his use,” &c., &c., in 1 Smith’s Lead. Cas., 234. Here, it was merely a loan for Joseph Hobson’s use.</p> <p>Where the plaintiff, a broker, agreeing to buy stock for an undisclosed principal — who, owing to a rise, refused to complete the bargain — paid the difference, it was held he could not recover it as money paid. Child v. Morley, 8 T. R., 610.</p> <p>The American cases of similar purport are numerous.</p> <p>“Assumpsit for money paid does not lie for moneys paid by plaintiff to remove an incumbrance upon land which defendant has represented and undertaken to be free from incumbrance.” Conant v. Dewey, 21 N. H, 353.</p> <p>A. promised B. to pay part of expenses of suit against B.; held, that B. could not recover for moneys advanced in defence as paid to A.’s use. Knox v. Martin, 8 N. H., 154.</p> <p>A. and B. were bound, as principal and surety, to C. B. married C.’s daughter, and C. gave B. the bond. Held, B. could not maintain assumpsit for money paid, against A. Butterworth v. Ellis, 6 Leigh., 106.</p> <p>S. acted with B. and F., as trustee, but no part of the trust-moneys ever actually came into S.’s hands; held, not liable under count for money had and received. Stowe v. Bowen, 99 Mass., 194.</p> <p>In Mariot v. Lister12 Wills., 141, cited in 1 Dane’s Ab., ch. 9, art. 18, § 1, it is said: “The word “lent” is a technical term, and can only be for money lent to the defendant himself, and not for money loaned to a third person. If it be advanced or paid to a third person, it is not money lent.” The word “paid” is equally technical, and the argument the same.</p> <p>Unless the defendant’s request be alleged, the declaration is demurrable. Burdick v. Glass Go., 11 Vermont, 19; Wharton v. Franks, 9 Porter, (Ala.) 232. Not only ought the request “to be averred in terms, but proved.” Victors v. Davies, 12 M. & W., 758.</p> <p>The necessity of a request is recognized in those cases which hold that all volunteer payments of one man’s debts by another, have been held to create no liability, and to imply no promise of repayment. Jones v. Wilson, 3 Johns., 434; Menderback v. Hopkins, 8 Johns., 436; Beach v. Vandenburgh, 10 Johns., 361; Wallkill v. Mamakating, 14 Johns., 87.</p> <p>Though the action for money had and received has been declared to be in effect a bill in equity, (2 Greenl. on Ev., § 117; Moses v. McFarland, 2 Burr., 1012,) yet it will not lie in favor of a surety who has been compelled to pay the debt of his principal. Of course, money paid will lie in such case. This shows the distinction to be observed. Ford v. Keith, 1 Mass., 139. To same effect, Child v. Eureka, dec., 44 N. H., 354, cited ante.</p> <p>We think no case can be found where a promissory note has been introduced under the count for “money paid,” even against the maker; for though it can be introduced to show that the defendant has “had and received” money which he should equitably refund to the plaintiff under a count of that description, yet it is only so admissible against some person who has actually received the money the note represents. Indeed, many cases restrict it to immediate parties between whom money actually passes. Per Lord Ellenborongh, in Waynamv. Bend, 1 Camp., 175; Thompson v. Morgan, 3 Camp., 101.</p> <p>Where the defendant signed as surety for the other maker, the ' plaintiff cannot resort to the money counts. Wells v. Girling, 3 Moore, 79; same case, 8 Taunt., 737.</p> <p>Nor is a note admissible under them if it express no consideration. Saxton v. Johnson, 10 Johns., 418. Nor a premium note. Atlantic dee. Co. v. Sanders, 36 N. H., 252, 270.</p> <p>Accordingly, the supreme court of the United States held that, ' “'Though an indorser of a negotiable note may ordinarily be declared against in an action for money had and.received, yet if the plaintiff’s evidence shows that he was a mere accommodation indorser, this action will not lie; he can be charged only upon a special count on the note.” Page’s Admrs. v. Bank of Alexandria, 7 Wheat., 35.</p> <p>If onr court assent to the samo reasoning which convinced the minds of Marshall and Story, Washington and Livingston, then the defendant’s objection must be held fatal to the maintenance of this action.</p> <p>To hold differently would be an abuse of language, and do violence to common sense.</p> <p>After reading the agreed statement of facts, can anybody say that Daniel F. Emery really paid and expended any money for the use of Frank O. L. Hobson; when the evidence is undisputed that there was no payment at all, but merely'a loan; that it was lent to Joseph Hobson and never benefited this defendant in any way; and all was done before he ever knew of the loan; so he did not request it. To say that this declaration satisfies that rule in assumpsit on a contract, which the New Hampshire court declares has no exception, that “the consideration must be truly stated and proved as laid,” would be to make the truth a lie.</p> <p>Equity does not require this distortion of the facts into a falsehood.</p> <p>Frank Hobson never had a dollar of this money. It was never understood by anybody that he was to derive any benefit from the loan of it. Nor is it true that plaintiff let it go upon the credit of Frank’s name, for Emery had delivered his check to Joseph Hobson, who had cashed it before Frank ever knew of the existence of the check in controversy. At most, Emery only let his money go in the faith that Frank would indorse if asked to do so by Joseph Hobson. It is not the case of a man lending a friend his name that he may obtain credit; but Emery leads this young man into assuming the indorsement of this check. There is no reason, then, why the defendant should be held beyond the fair limits of the legal responsibility he was thus induced to incur — the letter of his bond. That he must and will meet, whatever it may be, but does object to its being extended, by strained inferences, the perversion of plain terms, or a legal construction contradictory to conceded facts.</p> <p>II.</p> <p>If the check supports this declaration yet we claim that no recovery can be had upon it against Frank Hobson, since the loan by Emery to Joseph Hobson had been effected prior to the indorsement, which, therefore, was based upon a past consideration.</p> <p>If the consideration had passed, the act must have been done at the request of the defendant in order to hold him. Comstock v. Smith,7 Johns., 87; Hicks v. Burhans, 10 Johns., 243; Parker v. Crane, 6 Wend., 647; Chaffee v. Thomas, 7 Cow., 358.</p> <p>An executed consideration will support no other promise than that implied by law, viz: that he for whom it is executed will pay on request. Bailey v. Bussing, 29 Conn., 1.</p> <p>There is an obvious and recognized distinction- between motive and consideration. Philpot v. Gruninger, 14 Wall., 570, 576 & 7. The court there say that the defendant’s agreement “was the consideration, — not its performance.” So here, Emery’s reliance upon Joseph Hobson’s promise that Frank would indorse, and his expectation that the latter would do so — and not the indorsement itself — was really the consideration for the loan. The indorsement was not the consideration of the loan, for it had been made before the defendant knew of it; nor, then, could the loan in law, be the consideration of the indorsement, though it might be a motive for making it. The real motive, or inducement, no doubt, was to gratify Joseph Hobson by complying with his request, without particular inquiry about reasons for asking it, or thought about results.</p> <p>Suppose the defendant had refused to sign; Joseph Hobson would have had the loan all the same, and the plaintiff would have hold this check as evidence of it. It was problematical whether he would indorse or not; if he consented or refused Joseph Hobson’s legal liability remained unchanged. Frank Hobson was under no obligation, legal or moral, to affix his name to this paper. No money was parted with by reason of any promise of his; and any promise to assume a legal liability for a loan already perfected and past, (as much so as if made a year before), without any new consideration therefor, was nudum pactum, and void. '</p> <p>If the transaction between the parties had been put in writing would it not have read, substantially, thus:</p> <p>“Whereas, Daniel F. Emery has heretofore lent Joseph Hob-son six thousand dollars, in the expectation that I would become surety therefor, (led so to believe by Joseph Hobson’s promise that I should do so), I now hereby guarantee payment to said Emery of that loan, in case Joseph Hobson’s check given therefor be not paid by him, or at the bank on which it is drawn.”</p> <p>Would not this show the guarantee to be based upon a previous, and not a contemporaneous, loan? Can there be any true statement of the transaction that does not disclose the promise of the defendants to be founded upon a past and fully executed consideration.</p> <p>• Then compare it with adjudicated cases !</p> <p>Where the defendant gave the plaintiffs a writing to this effect: “In consideration of your having indorsed the undermentioned notes drawn by S. & Co., in your favor, we hereby hold ourselves accountable to you for them in the same manner as though said notes were drawn by us,” it was held nudum pactum, as stating a past consideration. JBulkley v. landon, 2 Conn., é04.</p> <p>In a suit to recover the purchase money of a farm, the declaration based the promise upon the “consideration that the plaintiff had there, before that time, sold &c., unto the defendants a certain farm” &a; held, bad as stating a past consideration, and judgment was arrested. Comstock v. Smith, 7 Johns., 87.</p> <p>The only exception is where the past consideration was executed at the defendant’s previous request, or where it placed him under some moral obligation; neither of which exceptions applies in the present instance. Frank Hobson, so far from making a prior request, had no previous knowledge of the loan to Joseph, derived no benefit whatever from it, and was not placed under any moral obligation with relation to it.</p> <p>Comstock v. Smith was the case of land conveyed directly by the plaintiff to the defendant.</p> <p>In Chaffee v. Thomas, 7 Cowen, 358, the same court made a similar decision upon a written promise of the defendant to pay for land previously conveyed by the plaintiff to a third person.</p> <p>Where A., after drawing a bill of exchange on B., who accepted it, indorsed it to C., who re-indorsed it to A., in pursuance of an agreement (without consideration) that he should do so as a security for the payment of it by the acceptor and to add to its negotiability; on demurrer to a declaration against C., upon the bill, stating these special circumstances under which the defendant became indorser; held, that the indorsement was void for want of consideration. Britten v. Webb, 2 B. & C., 483.</p> <p>The previous indebtedness of A. to B., is not sufficient to support C.’s promise to pay the debt. Bingham v. Kimball, 17 Ind., 396.</p> <p>Where a consideration is past and executed, it is essential to its validity that it arose at the request of the defendant. Hatch v. Purcell, 21 N. H., 544.</p> <p>Nor will subsequent assent bind a party unless upon a consideration beneficial to him. Id., 546. Doty v. Wilson, 14 Johns., 378.</p> <p>Even where the. defendant was under a moral obligation, if there never existed any legal liability antecedent to the promise. Mills v. Wyman, 3 Pick., 207; Dodge-v. Adams, 19 Pick., 429; Shepherd v. Toung, 8 Gray, 152; Cook v. Bradley, 7 Conn., 57.</p> <p>In the famous old case oí.Hayes v. Warren, Strange’s Reports, 933, where the declaration alleged that the plaintiff had worked for the defendant who, in consideration thereof, afterwards promised, &c., a judgment rendered thereon upon default was held erroneous.</p> <p>, This case has been much criticised, but Judge Metcalf says: “It will be found, however, upon an examination of the history of the doctrine in question, that there has been no relaxation of it; and that the ease of Hayes v. Warren, stands on precisely the same grounds as the other cases, and could not have been decided differently without violating long established principles.” And a comparatively recent case in New Hampshire is precisely similar in its decision and results to Hayes v. Warren.</p> <p>The declaration setting out that the defendant on the day of the purchase of the writ, being indebted, &c., after, to wit, on the same day, promised to pay, was held bad, as basing the promise upon a past consideration. The judgment rendered on default (as in the case in Strange) was reversed and it was held no new judgment could be given thereon. Johnson v. Greenough, 33 N. H., 396. The same form of declaration was held bad in Livingston v. Rogers, 1 Caines, 583.</p> <p>If it be fatal to allege the promise to be subsequent to the consideration, can it be any less fatal to prove it so?</p> <p>Chitty, treating “of the consideration in regard to time,” says: “In respect of time, a consideration is either: 1st, executed, or something done before the making of defendant’s promise; 2d, executory, or something to be done after such promise; 3d, concurrent, as in the case of mutual promises; and 4th, continuing.” Chitty on Cont., (6 Am. Ed.), *61.</p> <p>As to executed considerations, he then goes on to state the necessity for a precedent request, and an allegation of it, and to lay down the law as established by multitudinous cases.</p> <p>Now, was not all done, by way of consideration therefor, that ever was done, before Frank O. L. Hobson made any promise?</p> <p>Judge Metcalf, (in his essay in the Am. Jur., No. xxii, page 271) says: “When a promise is made to pay the already existing debt of another, there must be some new consideration, or the promise will be void. The original consideration, which supports the principal’s contract, cannot be made to operate upon the new promise. Such promise is nudum pactum.”</p> <p>That such is the case where one not party to a note, after its delivery, puts his name upon the back, see Tenney v. Prince, 4 Pick., 385; Courtney v. Doyle, 10 Allen, 122; Greene v. Shepherd, 5 Allen, 589.</p> <p>How does the case of this check differ from such an one?</p> <p>The plaintiff will probably say that it was originally agreed that the defendant should indorse the check.</p> <p>But Frank Hobson was not party to such original agreement, if made; nor was Joseph Hobson his agent in making it, nor did he profess to be, or to have any authority from Frank.</p> <p>The agreement was completed, executed and delivered before Frank saw it: all the difference his indorsement made was that it enabled Emery to sue the maker in his own name.</p> <p>At all events, the consideration was fully executed and past before the indorsement.</p> <p>III.</p> <p>The plaintiff’s laches is sufficient to discharge the defendant, even if originally liable. No “grace” is allowed on cheeks. R. S., c. 32, § 9; Lead. Cas. on Bills, &c., 716; Morrison v. Dailey, 5 Ohio St. R., 13.</p> <p>So that, to hold an indorser, it must be presented on the day of its date; Id.'; or next succeeding day. Smith v. Jones, 20 Wend., 192; Mohawk Bank v. Broderick, 13 Wend., 133, note; Gough v. Staats, 13 Wend., 519; Veazie Bank v. Winn, 40 Maine, 60; Down v. Hailing, 4 B. & C., 330.</p> <p>The words “waiving demand and notice,” on an instrument of this kind are senseless, and must be wholly disregarded.</p> <p>A check, as to its negotiability and some other incidents, is similar to a bill of exchange; so that some courts, when treating of them with reference to particulars wherein they, agree, have carelessly spoken of them as the same; but Judge Story quotes, “nullum simile est idem” and clearly distinguishes them. In re Brown, 2 Story’s Reports, 502, citing 4 Kent’s Com., 549, note,* 4 Ed.</p> <p>It is an instrument sui generis, appropriating the amount in the hands of the bank to the holder of the check; while a note or bill' of exchange does not charge any particular fund. 2 Story’s Reports, 516, 517.</p> <p>There is no express promise to pay. Joseph Hobson directs the First National Bank, out of his funds there deposited, to pay six thousand dollars ; the law therefore implies a promise on his part to pay if the bank does not pay; but certainly, he would not be liable to a suit upon this promise, until the check had been presented at the bank and payment refused, and he notified of the refusal. Can it be that the indorser is subject to a greater liability than his principal ? Can Frank Hobson be held when, upon the same state of facts, Joseph Hobson would not be ?</p> <p>Is there a particle of evidence in this case to show that Joseph Hobson (or this defendant either, for that matter,) was informed of the bank’s refusal before the bringing of this action ? and without such proof how can the plaintiff expect to recover ?</p> <p>“Waiving demand and notice” upon a note has a fixed meaning. It is an agreement to dispense with a “demand upon the maker of the note at the time and place where he (and not another) undertakes to pay it personally, and “notice” of his failure to do so.</p> <p>Either these words must be treated as surplusage in their present use, (as they were in Malbon v. Southard, 36 Maine, 147; Lowell v. Gage, 38 Maine, 35,) or else the phrase is to be taken in its ordinary acceptation, and the demand upon the maker, after the bank’s refusal, and notice of his delinquency, were all that were waived.</p> <p>Presentment of the check at the bank for payment was not waived. As above remarked, Joseph Hobson never became liable himself, till after presentment at the bank; then presentment was not waived by the defendant, and by reason of non-presentment he is released. “Waiver of notice is not waiver of demand.” B. S., c. 32, § 10. . Drinkwater v. Tebbetts, 17 Maine, 16; even if preceded by the words, “I hold myself accountable,” &c. Burn-ham, v. Webster, 17 Maine, 50 ; Bank v. Jones, 6 Mass., 524.</p> <p>Nor does it make any difference that this was an accommodation indorsement; nor would it even if Joseph Hobson had no funds at the bank, (though he evidently had.) Warder v. Tucker, 7 Mass., 449. . .</p> <p>Mr. Parsons, in 1 Parsons on Notes, 569, notek, says that, prior to being fixed by demand and notice, an indorser is only an indorser ; by these steps, (or by a waiver of them, we say,) “he becomes a surety.” Then he is entitled to the usual rights of sureties, and ean claim that the creditors shall use “due diligence” in applying the designated funds to the satisfaction of the debt, the check putting them entirely at the holder’s disposal for this purpose ; therefore, he cannot sleep over it, and, through gross laches, allow them to be taken out of his reach and charge the surety. Down v. Hailing, 4 B. & 0., 330, 333, cited supra.</p> <p>To maintain an action on the guaranty of a note, the plaintiff must show the use of due diligence. Isett v. Hoge, 2 "Watts, (PeDn.) 128; Oxford Bank v. Haynes, 8 Pick., 423, 430, note 1.</p> <p>It will be noticed this is the case of a guarantor, (in 8 Pick.,) and not of an indorser. If strict punctuality were waived by the indorsement on this check, yet (we say) it'cannot be pretended that a presentment at the bank was dispensed with entirely. This would be to make the instrument felo de se ; and Frank Hobson assuming for Joseph a greater responsibility than the latter did for himself. If these words had any relation at all to presentation at the bank — which we deny — they could only be construed as a consent to its being made at a later date than June 11, or 13, 1870, without fixing any other day for it, but leaving it to be done within a “reasonable time.”</p> <p>The twelfth day of June, 1870, was Sunday; it is probable that it was past the bank hours of Saturday, the eleventh, when the indorsement was made, and that suggested this waiver to Mr. Emery’s mind.</p> <p>Where there is no express contract as to the time wherein an act is to be done, it must be in a reasonable time. Atwood v. Clark, 2 Maine, 249.</p> <p>Thirteen months was not a reasonable time for presentment of the check. In the interim, Joseph Hobson, from having sufficient funds in the bank to meet it, had come to have no deposit, and become insolvent.</p>