Volume 63 — Maine Reports

On facts agreed. The plaintiff, on the sixth day of January, 1874, instituted this action, declaring in his first count, that John W. McDuffee, at Lewiston, on the twentieth day of July, 1872, made a bet with the defendant upon the result of two races to be run against each other by their respective horses, “King William” and “Phil Sheridan,” which was' won by the latter on the twenty-eighth day of August, 1872, and on the thirtieth of that month, the stakeholder, by…

On exceptions. Case for deceit on the sale of the right to make and vend a patented crank churn for the States of Kentucky and West Yirginia, for which plaintiff and one Eaton paid the defendant $7000, being induced to do so by certain false and fraudulent representations made to them by Small, which are sufficiently stated in the opinion.

On exceptions. Assumpsit to recover under a count for money bad and received, ten dollars and eighty-five cents, declared in the plaintiff’s specification of claim to be made up of $8.61 illegally assessed as a tax against him, and two dollars and twenty-one cents as the costs and charges of the officer collecting the tax, which was enforced by a seizure of personal property, and paid by Mr. Donnell under written, protest.

On exceptions and motion for a new trial by the defendant. Assumpsit. The exceptions were to the allowance of an amendment. The writ originally contained a count upon an account annexed, and a general money count.

<p>On exceptions.</p> <p>Assumpsit upon a note of this tenor:</p> <p>• “Waterville, June 14, 1870.</p> <p>Two years after date I promise to pay to the order of A. M. Capen, fourteen hundred and nineteen dollars, at Ticonic National Bank, value received, with interest at the rate of two and half per cent each month after due until paid.</p> <p>A. C. Crowell.”</p> <p>The issue of fact was whether or not the clause italicized above had been inserted after the delivery of the note to the payee, and without the maker’s consent; the latter affirming that it was so added and the former denying it. Mr. Plaisted, the cashier of the Ticonic National Bank, called by the plaintiff, testified that he received from Mr. Capen, in July, 1870, these two letters :</p> <p>“Waterville, July 5,1870.</p> <p>A. M. Capen : • I send you to-day eighty dozen socks by Eastern express. Please return my note by mail. I have a chance to sell all the stockings I take this fall on three and four months. If you like, you can return the other note you hold against me for socks by express, and I will give you a cash note payable in three months. Respectfully, A. C. Crowell.”</p> <p>“New York, July 7,1870.</p> <p>Mr. A. Plaisted, — Dear Sir: I enclose you some notes to collect against A. C. Crowell, which please do, and remit me, less your charges and commissions. The one at thirty days you may deliver to Mr. Crowell, on his paying yon $7.20, being the amount of express charges which I had to pay on the eighty dozen stockings I have just now received from him. The note at sixty days, as you see, he says he prefers to give a three months’ note for, and to this I accede, if he means three months from June 14, which I presume he does; and you may take such a note, and give him his sixty day note in exchange, but please insert in the note you take the two and one-half per cent, penalty- clause which you will observe in the others. I guess he will pay me this time. I have had trouble enough and much expense with him.</p> <p>A. M. Capen.”</p> <p>This second letter was excluded by the presiding judge, upon defendant’s objection, and the plaintiff excepted, the verdict being against him. He also filed a motion for a new trial, but no question of law arose under it.</p> <p>It is in proof that four other notes were given to Mr. Capen by Mr. Crowell at the same time and place as the one in suit; two of them being for $390 each, payable in socks in thirty and sixty days at the Ticonic National Bank. The bank, then, was the place of delivery of the socks. Before the earlier note matured, or reached the bank, Crowell sent the socks to New York by express, to pay it, requesting Mr. Capen, by the foregoing letter, to return the, note by mail, and, if he chose, to exchange the second one for a cash note. In furtherance of this arrangement,Mr. Capen sent these letters to Mr. Plaisted, the cashier, who swears he always observes the directions of those doing business at the bank, as to the disposition of notes left for collection, though he has no particular recollection what was done in the present instance, except that he did take a hew note of Mr. Crowell for that drawn on sixty days. The' defendant refused to comply with our. notice to produce all the notes given by him to Mr. Capen. The cashier said that the note in renewal of the sixty days’ note was in Crowell’s own handwriting, and was taken up by him at maturity, at the bank. Evidently, then, this last note was made in conformity with the instructions contained in this letter to Mr. Plaisted, which must, therefore, have been communicated to Mr. Crowell, and was thus rendered admissible. It was part of the res gestae, peculiar to this case.</p>

On exceptions. Trespass de bonis. To establish her title to the property in question, which had been attached by the de fendant, as an officer, upon a writ against the plaintiff’s husband, Mrs. Sawyer was called as a witness in her own behalf. To affect her credibility, the defendant then offered to read in evidence the record of her conviction of and sentence for larceny, upon a plea of guilty, at the September term of this court for this county.

On exceptions. Appeal from the decision of the county commissioners granting the petition of O. D. Potter and others for the location of a county way across the town of Webster.

On exceptions. Assumpsit for money had and received. No service was made on the principal defendant who is a resident of Boston, Mass. Patrick Tobin, the alleged trustee, disclosed that his only indebtmerit to Mr. Winchell was for liquors purchased in Boston and intended for illegal sale in this State. Having been charged upon this disclosure, he excepted.

On exceptions. Assumpsit upon a count for money had and received under which the plaintiff offered the defendant’s check for $6000, dated June 11, 1870, payable to F. O. L. Hobson and by him endorsed. It was not presented to the bank upon which it was drawn until the fourteenth day of July, 1871, and upon the sixth day of that month the defendant had wholly withdrawn his deposit.

On exceptions. Assumpsit. The declaration contained only the count for money had and received.

On exceptions and motions foe a new teial. This action was to recover for the support of a pauper alleged to be chargeable to the defendant town. The main issue was whether or not Alexander Pride, the father of Joshua T. Pride, the pauper’s husband, — her settlement being derivative — haid resided in Windham the five years next preceding the time when Joshua became twenty-one years old; this issue toning upon the controverted question of the date of Joshua’s birth.

On exceptions. As originally brought, this was an action on the ease under R. S., c. 26, § 10, to recover the value of a building torn down to stay the progress of the great fire in Portland, July fourth and fifth, 1866. At the April term, 1873, when the cause came on for trial, the plaintiff moved to amend his declaration by adding a count under R. S., c. 123, § 8, relating to the liability of municipalities for three-quarters of the value of buildings destroyed by mobs.

<p> What justifies arrest on mesne process for debt. </p> <p>In an action for false imprisonment of tbe plaintiff, procured by the defendant’s affidavit that he believed the plaintiff was about to leave the State, &e., (under B. S., c. 113, § 2,) a verdict for the plaintiff will not be set aside as against the weight of evidence, if it be apparent that the defendant did actually believe these statements in his affidavit, unless it be also evident that he had reason so to believe-.</p> <p>A verdict of $600 held not plainly excessive in this case.</p>

On exceptions to rulings in the superior court. The plaintiff (the verdict being against him) excepts to the admission in evidence of the deposition of John T. Hayslett, taken .in New Bedford, Mass., before a justice of the peace there, on the twenty-fourth day of September, 1872, at the request of the plaintiff, upon notice served upon the defendant’s attorney in Portland on the fourteenth day of the same month, the distance between these two places being 166 miles.

<p> Damages upon location of way. </p> <p>Damages awarded by a committee for tbe location of a drain are to be only those resulting from its proper construction. If injury arises by reason of an improper construction of the drain, the remedy, if any there is, must be sought in some other form.</p>

On REPORT. Petition por mandamus, commanding the respondent, in his official capacity, as judge of the municipal court of Portland, to issue an execution upon a judgment in favor of Patrick Kelley against Edwin C. Greely, running against the body of the latter. Judge Morris declined to do so, unless so ordered by this court, but tendered one running against the goods and chattels of the debtor, upon the state of facts set forth in the opinion.

On report. Immediately after the great fire of 1866 in Portland, Charles M. Brainard commenced the marble and stone business there and continued it alone, by the aid of Sumner Adams and Thomas H. Weston till the fall of 1868, when, finding himself lacking in capital, it was proposed by him that Mr. Weston should join him and one Winslow Baker, the copartnership to carry on the marble and freestone business in Portland.

On exceptions to a ruling of the justice of the superior court. Trespass for on assault upon the plaintiff and expelling him from a train running over the defendants’ road. It appeared that the road was then operated by the Grand Trunk Railway Company of Canada, under a lease from the defendant corporation.

<p>On report.</p> <p>Assumpsit to recover balance due for twenty shares of the stock of the Second National Bank of Portland, borrowed by the defendant of the plaintiff, June 5,1869, upon an agreement to return them on demand, and in the meantime to pay to Mr. McKenney all the dividends declared upon them. To secure performance of this agreement the defendant conveyed to the plaintiff real estate in Portland. Circumstances rendering it impossible for Mr. Haines to return the shares when demanded, and the property taken as collateral being insufficient security, it was agreed that Mr. McKenney should take the land at an appraisal, and Mr. Haines be hold-en to him for the balance: this case is reported to determine what that balance is, and the legal principles upon which it is to be ascertained. The demand for a return of the stock was made in August, 1872, when it was selling at $125 per share. The land was appraised October 22, 1872, at $1,394. The bank subsequently closed up its business and paid $145 per share to each stockholder.</p>

On exceptions. The writ by which this action was commenced bore date the tenth day of October, 1871, and was returnable to the January term, 1872, of this court for this county. The plea was the genral issue and the statute of limitations.

On REPORT'. Assumpsit upon four promissory notes given by the defendant’s testator to the plaintiff. The cause was referred by rule of court to Hon. William L. Putnam with no special limitation of his power as referee.

On exceptions, to the ruling of the present justice of the superior court.

<p>Contract — construction of — when equity will decree performance of residue of one partly abandoned.</p> <p>The stipulation for the erection of a central passenger station found in the contract of April 23d, 1850, between the plaintiffs and the Atlantic & St. Lawrence Railroad Company has been abandoned by mutual consent. o</p> <p>All the other work contemplated in the contract having been performed with the exception of this item, and this being abandoned, the plaintiffs have the same rights in the works actually constructed at the joint expense, and the same right to an irrevocable lease óf the western portion of the tracks laid down in pursuance of the contract, as they would have had if the proposed central depot had been constructed within a reasonable time. The territorial division of the tracks heretofore made for the purpose of repairs indicates the part to be leased.</p> <p>Until such lease is made the plaintiffs have a right in common to the use and occupancy of the tracks throughout, for the purpose of transporting and delivering at any point between the original termini of the roads, as they existed on April 23d, 1850, all freight and cars which they are hauling in pursuit of their business as common carriers, whether their own cars or the cars of connecting roads, and whether they receive them at their general station in Portland or elsewhere.</p> <p>After such lease both parties shall enjoy their rights in that portion of their new tracks which is in the possession and under the immediate control of the other party, under such rules and regulations as may be mutually beneficial.</p> <p>The non-fulfilment by mutual consent of one item in a contract embracing the performance of several pieces of work, will not defeat the right of a party who is not in default to require a substantial performance of the remainder of the contract, when such non-fulfilment does not affect the essential rights and interests of the contracting parties with regard to those parts of the work' which are actually performed.</p>

On report. Petition kor certiorari, to quash the proceedings of the county commissioners of Cumberland county, in laying out a town way in Pownal, which had been previously laid out by the selectmen of that town; but the town had refused to accept it, whereupon application had been made to the county commissioners, who adjudged the way to be of common convenience and necessity and established it.

On exceptions. Writ of entry demanding possession of certain premises in Cape Elizabeth, described in the declaration by metes and bounds, and then further specified as lots numbered 27 and 28 on a plan of Woodbury Dyer’s land, made by Wm. Anson, June 29, 1847, and recorded in the Cumberland Registry of Deeds, book No. 1, page 15, being same premises conveyed to the demandant by George S. Hay, by deed of March 29,1871, recorded in said registry, book 383, page 421.

On exceptions by the plaintiffs to instructions of tbe justice of the superior court. The facts and rulings are given, sufficiently for an understanding of the case, in the opinion. The verdict was for the defendant.

<p>On exceptions.</p> <p>The appellants appealed to this court from the decision of the county commissioners of this county making certain alterations in the highway leading from Webb’s Mills in Casco through Raymond, upon petition of S. S. Brown and fifty-two others, which is recited in the next reported case, upon another issue between these same parties. A committee was appointed who reported that the judgment of the commissioners should be affirmed. The appellants objected to this report because the committee were not sworn until the time arrived which they had designated for hearing the parties. The presiding justice overruled this objection and ordered an acceptance of the report, to which' the appellants excepted.</p> <p>cited, R. S., c. 18, § 38; Assessors of Glifton, petitioners, &c., 33 Maine, 369 ; Commonwealth v. Goombs, 2 Mass., 189.</p>

On report. This was a petition for a writ of certiorari to quash the proceedings of the county commissioners of this county in locating or altering a certain highway or highways in Raymond, upon the petition of Samuel S. Brown and others, referred to in the preceding case.

On exceptions. Trover, brought by the plaintiff as administrator to recover for a counter, of the alleged value of ten dollars, belonging to the estate of his intestate, and taken and converted by the defendant, who justified his possession and detention of it under a claim of lien upon it for two years’ storage of it.

■ On report. Petition for review of an action of assumpsit, brought by Mr. Thompson against Alvah and Sylvan Shurtleff.

<p>On exceptions and motion for a new trial, oil the ground that the verdict rendered for the State upon the trial of this case at the January term, 1873, of the superior court for this county was against the law and the weight of evidence. The facts and rulings are indicated in the opinion.</p>

On exceptions. The city marshal of Portland, on the twenty-third day of January, 1873, made complaint to the municipal court, that Charles Pettis, on the second day of the same month, “one cradle, of the value of two dollars, of the goods, chattels and property of Charles A. Dalton, in the possession of said Dalton being found, feloniously did steal, &c.” At the trial before the superior court the government called but two witnesses ; Eliza J. Googins who said that the…

On exceptions to the ruling of the justice of the superior court for this county. The respondent was charged with stealing twenty-five pounds of lead, valued at two dollars and three-quarters, Nov. 4, 1872, at Portland.

On exceptions to the ruling of the justice of the superior court for this county. Indictment for arson in setting fire to the barn of the defendant, in Scarborough, on the night of the twentieth of January, 1873, whereby it and his adjoining dwelling-house were consumed. The ownership of these buildings is thus stated in the first count and that the barn was set on fire for the purpose of destroying the house in which certain persons then lawfully were.

<p>On report.</p> <p>Assumpsit upon a promissory note, defended upon the ground of want, or failure, of consideration. The terms and tenor of the note, and the circumstances under which it was given, appear in the opinion.</p> <p>Though the machine he expected never was delivered to the defendant, so that he never received the anticipated benefit, yet he gave the note to the Irving Bark Extract Co., making it at their request, run to the South Boston Iron Co., (which had no dealings with Brown) and the Extract Co., according to their original intention, as indicated by the very tenor of the note, passed it to tbe plaintiffs for a fall and valuable consideration between these parties. As the Irving Bark Extract Co., received from the Iron Co., the full value of the note for it, it is immaterial whether or not Brown ever received any equivalent for his note. 1 Parsons on Notes, 183, 199, and cases there cited.</p> <p>It appears by Mr. Johnson’s testimony that in taking this note, which was delivered to the plaintiffs at the same time with the order for the machine, for which it was part payment, he acted for, and as the agent of the South Boston Iron Co., who were authorized to manufacture machines for the licensees of the Irving Bark Extract Co., the proprietors of the patent. His agreement with Mr. Brown was never carried out by the company he represented in making it, who never made any machine for Mr. Brown, and therefore he was fairly entitled (as Mr. Reed, the company’s agent at its Boston office, told him) to have his note returned to him, since the consideration for it had utterly failed.</p>

On exceptions and motion eoe a new trial. Trover, originally brought in the superior court and subsequently transferred to this court, to recover the amount of three promissory notes made by the defendant, payable to the plaintiff; one dated January 3, 1870, for $125 and interest; another, of the same date, for $66.86, with interest, and a third dated January 8, 1870, for twenty-three dollars ; all of which the plaintiff says the defendant wrongfnlly obtained possession of…

On exceptions. The claimant’s appeal was referred by agreement of parties to Nathan Webb, Frederic Fox and Ezra Carter, who reported that she had no title to the land taken for public use. She objected to the report upon the ground that they were not authorized to pass upon the question of title. The court sustained the objection, and rejected the report, and the city excepted.

On exceptions. The plaintiffs sold the defendant goods from time to time, for part of which they held his draft on A. S. Greeley for $275, dated August 3, 1872, payable on sixty days to his own order and by him indorsed. It was dishonored and protested.

<p>On exceptions.</p> <p>Replevin of four cows which, claiming to act in the capacity of field-driver iu Brunswick, the defendant took up as estrays in that town on the third day of July, 1872, and committed to the town’s pound, giving the pound-keeper a certificate of committal, describing the cows, and then saying that they were “taken up as estrays in the highway of said town, and as being found at large by me, the subscriber, without a keeper in the highways of said town, and in the inclosure of Bowdoin College in said town, which are the causes for impounding the same, and the said Henry M. Bowker demands three dollars for forfeiture by law, and the unpaid fees and charges for impounding the same,” &c. The beasts' were taken by the defendant at eight o’clock in the morning, put into the pound that forenoon, and replevied at nine o’clock that evening before any advertisement of them had been posted.</p> <p>For these reasons, the defendant alleged, in his brief statement, that the cattle were not in his possession when the writ was served on him, nor were they impounded so as to authorize a resort to this process; but the judge of the superior court, before whom the matter came by appeal of the plaintiff from the municipal court of Brunswick, ruled that the writ was not prematurely sued out, and that it properly ran against the defendant, whose certificate he held to be defective, in stating two causes of commitment and in leaving it uncertain what number of the cows were in the highway and what were in the college grounds; and therefore, that it afforded no justification to the defendant. He awarded the plaintiff nominal damages, and the defendant excepted.</p> <p>These beasts were taken up as estrays, under R. S., c. 23, § 11, wandering part of the time in the highway and part of the time upon the college grounds, which he mentions as descriptive of the places where they were unlawfully roaming without a keeper, but not as the reason for impounding them. That was done because they were estrays, which is a sufficient legal cause.</p>

On exceptions. Debt, upon the bond of the executor of the will of the late John P. McGlinchy, who died at Portland, February 2, 1869, leaving his widow, enciente, and his father, surviving him. Two months after her father’s death, Gertrude, the child for whose benefit this suit is brought, was born.

<p>On exceptions.</p> <p>Covenant broken by alleged non-fulfilment of a written contract entered into November 7, 1871, whereby, in consideration of a conveyance to him of all the plaintiff’s interest in a patent churn and meat-chopper, the defendant agreed and bound himself to “forthwith undertake the manufacture of the said patented invention, and the introduction of the same into the market,” and to use all due diligence in doing so and to pay Mr. Winslow $5000 from the net profits “arising from the sale and manufacture” of these articles as soon and as rapidly as said profits are realized, and in case 'of failure to use such diligence the assignment and agreement were to be null and void. In ease of disagreement, as to whether or not a proper degree of diligence had been used, there was a provision for a reference. The general issue was pleaded in defence with a brief statement of performance, the use of due diligence, a failure to realize any profits, and that no suit was contemplated, or authorized by the agreement, but submission to referees with I1 penalty of forfeiture of all right to the patent and not of pecuniary damages. The plaintiff introduced testimony to show a lack of the requisite diligence on the part of the defendant, his abandonment of the manufacture, a refusal to refer the question, and a rejection of an offer of $5000 for the right to make and sell the churn and chopper in Illinois; but did not show the realization of any profits.</p> <p>A nonsuit was ordered, to which the plajqtiff excepted.</p>

On exceptions. Debt on a bond given to obtain Pinkliam’s release from arrest on an execution against him in favor of the plaintiff issued by the superior court upon a judgment entered up November 29, 1872, for $144.66 debt, and $13.03 costs. He was arrested January 10, 1873, on the first execution, and the officer charged his fees for service at $2.90, which was included in the amount doubled to arrive at the penalty of the bond which was thus fixed at $321.48.

On report. Assumpsit upon an agreement said to have been entered into on the third day of May, 1870, at Cape Elizabeth, between these two corporations, there located, the plaintiffs being engaged in the preparation of superphosphate of lime, in the course of which they had occasion to use large quantities of sulphuric acid, the making of which was part of the defendants’ business.

<p>On report.</p> <p>Assumpsit, submitted upon the report of an auditor. The facts are given in the opinion.</p>

On .exceptions. Assumpsit to recover a hundred dollars said to have been collected by the defendant for the plaintiff, but retained by the latter, contrary to the terms of a bill of lading, executed in duplicate by the plaintiff and the owners of a brig of which the defendant was master. Having introduced testimony tending to show the loss of the bill of lading delivered to him, the plaintiff was allowed to prove its contents by parol.

On exceptions from the superior court. Debt on a judgment of the superior court, to which the defendant pleaded that he did not owe, and filed a brief statement of payment and fraud. The plaintiff demurred’ to the plea. The demurrer was joined and sustained, and the plea adjudged bad ; to which the defendant excepted.

On report from the superior court. Assumpsit upon an account annexed for repairs made by the plaintiff for the defendants upon two bleaches, which were originally manufactured for the paper company by the firm of Charles Staples and Son, in which firm Mr. Fessenden was then a partner, succeeding to its business upon the dissolution of the partnership.

On exceptions. Assumpsit to recover the amount of a judgment recovered by David W. Benson and wife against the Grand Trunk Railway Company, together with the costs and expenses of the corporation in defending against that suit, which was brought to obtain damages for the maltreatment of the female plaintiff, and the misconduct of the defendant’s intestate, Addison A. Latham, then a conductor upon said railroad, having charge of its train upon which Mrs. Benson was a…

On report. Assumpsit on account annexed, amounting to $95.83, of which $75 were for professional services rendered by tbe plaintiff, as an attorney at law, to the defendant in bis suit against one Bruce, and tbe balance for disbursements in tbe same case. Tbe defence was that Mr. Perkins agreed to make no charge unless successful, and that Bruce was tbe prevailing party.

On exceptions. The respondent demurred to the libel for divorce given below. His demurrer was joined and overruled, and he excepted. “To the Honorable Justice of the supreme judicial court, next to be holden at Portland, within and for the county of Cumberland, on the second Tuesday of April, A. D. 1874.

<p>On exceptions to a ruling in the superior court. The facts are fully stated in the rescript.</p>

Bill in equity, brought by .Enos L. Jordan and Clement Jordan, junior, against the respondents, who were the selectmen of Cape Elizabeth at the date of filing the bill, setting out that their predecessors in that office in 1870, acting as selectmen, made and located some alterations in a way known as “the Fowler road” in Cape Elizabeth, which changes the town voted to accept only upon conditions that were never performed, so that the original laying out of that road in fact…

On pacts agreed. Trespass quare clausum for the removal of a school house, belonging to district No. 8, in Cape Elizabeth, to and upon a lot of land of the plaintiff’, which had been located and… Held: and its action void, because it was called by a justice of the peace, while the district had a clerk to whom no application to call it was made.

On exceptions. Trover for the alleged conversion of a note, dated August 20, 1870, given by the plaintiffs, through their treasurer, promising to pay Sumner Burnham or bearer. $600, on demand with interest.

<p> Replevin may be maintained without demand against one having no title. </p> <p>No previous demand upon a bona fide purchaser of a chattel from one who had no authority to sell it is necessary to enable the true owner to maintain replevin.</p> <p>Such purchaser is not lawfully in possession as against the owner.</p>

On report. Trespass guare clausum, brought March 17, 1873, for continuing upon the plaintiff’s land a wall nine inches wide and one hundred and six feet long. The declaration was in the usual form, alleging a breach and entry, &c., to which the defendant pleaded in bar a former judgment, recovered for building the wall, and satisfaction, as fully appears in the opinion.

On exceptions. Trover to recover the value of four bonds of the Portland & Oxford Central Railroad Company, held by Paddock, one of the defendants, as collateral security for a loan to the plaintiff, still unpaid. After maturity of the note given for this loan, a judgment and execution were obtained upon it, the debtor arrested, and gave the six months’ bond authorized by R. S., c. 113.

On exceptions, taken in the superior court. This was an action for false imprisonment of the plaintiff by an arrest upon a prosecution for larceny of defendant’s property. Mr. Speck had been in the employ of the Prairie Scout Company, of which Mr. Judson was manager, and had charge of the stage property.

On exceptions. In this action, for slander in falsely charging plaintiff with forgery, the defendant excepts to a ruling, made in the superior court, requiring him to answer an inquiry as to his wealth, which the justice told thq. jury they might consider.

On exceptions. The prisoner was convicted of rape upon a child less than ten years old. Against his objection, his wife testified as a witness for the prosecution. To the ruling admitting her his counsel excepted, as well as to the refusal of the justice of the superior court, before whom the cause was tried, to instruct the jury that they were at liberty to find the respondent guilty of assault and battery.

On exceptions. The defendant was arraigned upon a warrant issued by the judge of the municipal court of Portland on complaint made to that magistrate under R. S., c. 27, that intoxicating liquors were there kept by Cornelius Connelly, in a place described, he “not being then and there authorized to sell said liquors within said Portland,” and that the same were “intended for sale in this State in violation of law,” &c. Liquors were stated in the officer’s return to have been…

On exceptions. Indictments under R. S., c. 17, § 1, which provides that, “all places used as houses of ill fame, resorted to for lewdness or gambling, for the illegal sale or keeping of intoxicating liquors, are common nuisances,” alleging that the respondent on the twelfth day of October, 1873, and on divers other days and times between that day and the day of the finding of this indictment, at Portland, &c., did knowingly and unlawfully keep and maintain a certain shop,…

On exceptions to the ruling of the justice of the superior court. Search and seizure process upon which certain liquors were returned as taken, and McCafferty arrested. It was brought before the superior court by appeal from the municipal court of Portland.

On exceptions. The respondent, indicted for maintaining a nuisance, under R. S., c. 17, § 1, plead in abatement errors in the drawing of sixteen of the grand jurors by whom the indictment was found, coming from various towns and summoned by different officers and venires. The county attorney demurred specially to the plea and his demurrer was sustained by the judge of the superior court, and the respondent excepted.

Assumpsit. Motion for a new trial by tbe plaintiff, upon tbe ground tbat tbe verdict against bim, rendered at tbe April term, 1874, of tbe superior court for Cumberland county, was contrary to tbe law, and the evidence, and the weight of tbe evidence. At the May term, 1874, of tbat court tbe plaintiff filed another motion to set aside the verdict on account of newly discovered evidence relative to the matters at issue between these parties. .

On report. Assumpsit upon a note given by the defendant to the plaintiff for $190, dated August 17, 1872.

<p> Town cannot vote money to oppose its division. Inability after division. </p> <p>A town cannot incur expenses in opposing, before a legislative committee, a division of its territorial limits.</p> <p>The vote of Westbrook passed March 20, 1871, to build a bridge, and appointing their selectmen agents for that purpose, did not create any debt, liability, or cause of action, against the town. The contract for the bridge, first creating such liability, having been made after the act dividing the town took effect, the new town of Deering cannot be held to contribute to the expense of it.</p>

On report. Assumpsit to recover fifteen dollars, being three-tenths of the sum earned by the plaintiff in teaching a school in the Union School District at Farmington Falls, lying partly in Farmington and partly in Chesterville, the amount claimed being the latter town’s proportion, the former having paid the thirty-five dollars belonging to that town to pay.

On report. Writ of entry to recover an undivided two-thirds of township No. 3, range three, in Franklin county, to which both parties lay claim under Rufus Davenport, who bought it of the Commonwealth of Massachusetts, in 1805. April 30, 1836, Davenport mortgaged a fraction of the land to the Commonwealth to secure his note of that date for $900 payable to its treasurer June 1, 1837, with interest. Davenport died in 1839, intestate, at Boston, leaving this note unpaid.

On agreed pacts. The plaintiffs’ petitions made part of these cases and it was agreed that the statements therein contained were true. Mutato nomine, they were all alike, and the two last named were submitted to abide the result of the first.

<p>On exceptions.</p> <p>Assumpsit to recover the amount of two promissory notes given' by the defendant to Olney & Greene, payable to them or bearer.</p> <p>The plaintiff proved, by his own deposition, that he became the holder of said notes in the due course of business before the notes were due, without any knowledge of the consideration for which they were given, and that he paid a valuable consideration for the notes.</p> <p>The defendant offered a writing given to him by the payees, Olney & Greene, at the same time the notes were given, and as a part of the consideration and contract, that the defendant was not to pay said notes until he could realize from the sale of a certain patent hay-fork, money sufficient to pay said notes, and offered to prove that said notes were obtained by fraudulent representations, and that he had been unable to realize anything from the sale of the hay-forks.</p> <p>The presiding justice found, as matter of fact, that the plaintiff was a bona fide holder of the notes in suit, and ruled, as matter of law, that the writing and evidence offered were inadmissible as against the plaintiff, without notice of its existence at the time he bought, and ordered judgment for the plaintiff.</p> <p>To the ruling of the court the defendant excepts.</p>

On report. Assumpsit to recover an amount paid by plaintiff to support the defendant in jail, when held under surrender duly made to save the condition of a poor debtor’s bond given under the provisions of R. S.j c. 113, applicable to arrests on execution.

On report. Assumpsit to enforce a lien claim for labor and materials furnished by the plaintiff to the defendants, in repairing their school house, under the circumstances indicated in the opinion.

<p>On facts agreed.</p> <p>Complaint was made, on the tenth day of May, 1873, to a trial justice of this county, that the respondent on the seventh day of the preceding month, at Weld, in said county, “did take and capture fourteen fish, to wit, trout and pickerel, on hooks set through the ice at Webb’s Fond, in said Weld, the way and manner of taking said fish not being then and there the ordinary process of angling with single bait hook and line or artificial fly,” &c. Mr. Skolfield was convicted and appealed to this court. He admitted that he caught fish as charged in the complaint, by cutting a number of holes through the ice of Webb’s Fond and dropping several baited hooks attached to lines through said holes at once, there being a line to each hole, and all the lines were supported by sticks or brush on the ice. If this constituted an offence under the statute, the case is to stand for trial; otherwise, a nol 'pros is to be entered.</p>

<p>On exceptions.</p> <p>Case for nuisance to the dwelling house of the plaintiff in Farmington, declared to be owned and occupied by him, by the erection of a privy in proximity thereto, which was allowed to remain'in an offensive condition. At the September term, 1873, a verdict was rendered for the plaintiff, assessing damages at ten dollars and fifty-two cents. Upon appeal to him from the clerk’s taxation, the justice presiding ruled that full costs, amounting to thirty-three dollars and thirteen cents, were properly allowed. The defendant excepted.</p>

On exceptions. Daniel Parsons and other, responsible citizens of Hartford, in this county, on the fifteenth day of May, 1871, applied to the railroad commissioners of this State, agreeably to the provisions of the Public Laws of that year, c. 204, representing that public convenience and necessity required that a depot be established at Hartford Centre, upon the line of the Portland and Oxford Central Railroad.

On report. Trespass guare clausum, for cutting and carrying away grass from lot numbered thirteen in the sixth range of lots in Hartford, in this county, “on the flat or meadow land.” The defendant justified under a claim of title in himself to this land, derived from Harvey Fuller through Silas McKenney.’ The sufficiency of this justification depended entirely upon the construction to be given to this language in the descriptive part of the deed from Fuller to McKenney,…

On pacts agreed. Assumpsit to recover $52.83, the amount of an order drawn by the assessors' of defendant plantation upon its treasurer, and accepted by him June 13, 1870, in favor of Jonathan Eumball or bearer, purchased by the plaintiff of the original payee, to whom it was given on account of the military services of his son, a citizen of that plantation, who enlisted prior to July 2, 1862, and died within six weeks after joining the army, leaving his father as his sole…

<p>On exceptions.</p> <p>Case to recover for the destruction by fire, communicated from a locomotive engine used upon the defendants’ track, of the plaintiff’s store and contents situated in Bethel, near said track. The defence was, that the defendants were not using the locomotive which occasioned the injury, and they asked to have the jury told that, for that reason, they were not liable in this action, but this instruction was refused and a verdict rendered against them.</p>

On exceptions. Upon the sixteenth day of February, 1871, the plaintiff, then a student of Dartmouth College, left his home in Norway to return to Hanover, purposing to take the train that day at South Paris station, upon the defendants’ railroad, go to Gorham, N. H. that night and thence to Northumberland and Lancaster the next day.

<p>On report.</p> <p>Tbe opinion contains a statement of all the facts necessary for an understanding of the case.</p>

On exceptions. All the facts necessary to an understanding of the questions determined by the court are stated in the opinion.

On report. Writ oe entry, originally brought against George W. Lunt, who died during the pendency of the action, and his daughter and sole heir at law, Mrs. Walker, appeared in response to a citation and assumed its defence.

On agreed facts. Petition for certiorari, to bring up and quash the proceedings in the location of a way in Hebron, on account of the alleged errors in the record noticed in the opinion. Our only remedy is certiorari, which must be granted if the county commissioners had not jurisdiction. Longfellow v. Quimhy, 29 Maine, 196; Banks v. Go. Commissioners, Id., 288; Bangor v. Go. Commissioners, 30 Maine, 270. The record does not disclose jurisdiction.

Bill in equity, brought under R. S., c. 61, § 1, by a judgment creditor of William Farris, to subject property conveyed by John J. Ferry to Mrs. Farris to the payment of the execution issued on such judgment, upon the ground that the consideration for the conveyance was paid by William Farris from his own means. It is unnecessary to recapitulate the evidence by which it was claimed this fact was proved, as the case was decided upon another ground, fully stated in the opinion.

<p>On facts agreed.</p> <p>Assumpsit. At a meeting held December 8, 1863, under an appropriate article in the warrant calling it, the defendants “voted to pay $300 to each volunteer man to fill the town’s quota for the present call of three years’ men, or during the war.” The plaintiff’s intestate, Elisha T. Preble, first enlisted, for three years, December 12,1861, and re-enlisted, for a similar term, February 1, 1864. Tbe call referred to in tbe vote aforesaid was that of October 17, 1863, and the town’s quota under it was four. The fourth man, to fill this quota, was mustered into service January 4, 1864.</p> <p>Under Public Laws of 1868, c. 225, to equalize bounties, the municipal officers presented to the commissioners upon the equalization of bounties a claim for soldiers furnished by their town, among whom they enumerated Elisha T. Preble, and a hundred dollars were paid them by the State on account of his services. In a second count the plaintiff claimed to recover this $100, as received to his use. The town expended more than was reimbursed.</p>

On exceptions and motion eor a new trial. Trespass guare clausum against Alonzo B. Swan, (xaius Swan, Lawson C. Bryant and Lorenzo Cole, for breaking and entering the plaintiff’s dwelling, at Bryant’s Pond, on the fourth day of July, 1872, maiding a noise and disturbance therein, assaulting the plaintiff there, and pushing him down stairs and out of the house. The plea was the general issue only.

Bill in equity, brought under R. S., c. 61, § 1, by an execution creditor of George H. Motley to compel the payment of the debt out of land conveyed by Seth H. Faunce to Mrs. Motley, upon the ground that the property was purchased by the husband and paid for with his earnings and labor, and that the wife paid no part of the consideration for it.

On pacts agreed. Assumpsit upon a note of this tenor: “Hartford, Me., March 31, 1861. “For value received of Moses Sampson, I promise to pay him, or bearer, one thousand dollars, to be paid as follows; one third part in one year, one third part in two years, one third part in three years from the death of the said Moses Sampson, reserving the right of paying in advance upon the following conditions; — interest to be paid or allowed on all sums paid before the death of said…

<p> Deceit. Exceptions. Practice. </p> <p>Exceptions will not be sustained because tbe presiding judge declines to adopt tbe precise language of a requested instruction, tbougb it be pertinent and correct, if instructions substantially equivalent and equally intelligible are given.</p> <p>Wben tbe testimony does not exhibit any want of ordinary care on tbe part of tbe plaintiff in an action of deceit, but tbe reverse, tbe jury may properly be instructed tbat it will not relieve tbe .defendant from liability to come into court now, and say to tbe plaintiff “if you bad exercised more diligence and circumspection, it would have frustrated my plan for deceiving you, and therefore you cannot recover.”</p> <p>And in such a case it is not necessary to instruct tbe jury tbougb requested thereto, tbat tbe plaintiff was bound to use ordinary diligence and care to ascertain the truth independently of the defendant’s representations, for tbe reason tbat wben tbe statement of an abstract rule, however correct, is not pertinent to tbe case presented by tbe testimony, it ought to be withheld as tending only to mislead and confuse.</p>

On report. Assumpsit upon a note dated October 12,1868, for $500, signed by Isaac Dyer, payable in four months from date, at either bank in Saco, to the order of Ephraim Sanborn, by whom it was indorsed before being sent to the Saco National Bank, where it was discounted in renewal of a note of the same parties then overdue there. The first note fell due October 12, 1868, and this one, given a few days after that, was dated back to that time.

<p>On exceptions.</p> <p>The plaintiff was arrested upon a warrant issued upon a complaint for larceny against him, made to the municipal court of Portland, by the defendant, as city marshal of that city, upon information furnished by the person whose property had been stolen and by the city marshal of Biddeford and others. After a return of, and hearing upon the warrant, the defendant was discharged. Upon the question of malice the jury were instructed that, “there is another element which it is conceded by both parties must enter into the proceedings, in order to entitle the plaintiff to recover, and that is the prosecution must have been instituted from malicious motives. Both parties concede that it must be malice in fact as contra-distinguished from malice in law. It sometimes becomes a little difficult to draw the exact dividing line between the two. 'Wilfully doing an unlawful act is malice in law, as to the man whose rights are invaded; but it does not always follow that it is malice in fact, which has the ordinary signification attached to it; it is the entertaining of some hostile feeling- towards an individual, and not simply doing an unlawful act knowing it to be unlawful, but it is the entertaining of some hostile feeling towards some individual, and doing the act in that hostility toward him.”</p> <p>The jury were then referred to the evidence to ascertain whether or not there was this malice in fact; and were directed to consider the fact that there was no previous acquaintance between these parties, or knowledge of each other’s existence; the defendant’s official capacity; his reason for making the complaint; whether or not he had any selfish end to answer, or any possible motive to punish the plaintiff; very pertinent questions in determining whether or not there was malice in fact. To the foregoing instruction and remarks the plaintiff excepted. It appears by the exceptions that the jury were also told that malice in fact might be inferred; might be proved as conclusively from facts and circumstances as from declarations; that the prosecution of a charge without any knowledge of its truth, or of the person accused, or any evidence of his guilt, though made by one having no acquaintance or dealings with the accused, and, therefore, not supposed to have any particular enmity against him, might, under some circumstances, justify a jury in finding there was malice in fact, because the law presumes a man to intend the natural consequences of his act. At the plaintiff’s request, the presiding justice further instructed the jury “that if a party proceed against another without any probable cause, except the knowledge that an offence had been committed, from that fact, if I were a juryman, I should feel at liberty to infer actual malice, because the law presumes that a man intends the natural consequences that flow from his acts.” The verdict was for the defendant.'</p> <p>cited Humphries v. Parker, 52 Maine, 507; Parker v. Farley, 10 Cush., 281; Mitchell v. Jenkins, 5 B. & A., 594, and 1 Hilliard on Torts, 464, 465.</p>

On exceptions. The defendant was summoned to answer to the plaintiff “in a plea of debt,” stated in four counts, the first of which was upon a judgment recovered in BJiode Island; the second upon the same judgment together with the costs of levying the execution which issued thereon; the third on the note upon which the judgment was founded, alleging its transfer to the plaintiff, as indorsee, and the fourth, the ordinary form of the general omnibus count.

<p> Devise. Emblements. Executor. Will, construction of. </p> <p>Unharvested crops go to the devisee of the land, and not to the executor. As against the heirs at law they go to the executor; hut as against a devisee they do not, unless it appear by the will that the testator so intended.</p> <p>Hay in a barn passes under a bequest of “all the household furniture and other articles of personal property in and about the buildings.”</p>

On report. Writ oe entry to recover certain land in Lebanon, in this county, of which James 0. Blaisdell was the owner in fee, on the twenty-third day of March, 1869, on which day it was attached upon a writ in favor of Samuel Tompson against him, dated March 22, 1869, returnable to and entered at the May term, 1869, of this court.

On exceptions. Assumpsit upon a note for $215, dated May 12, 1869, signed on its face by James E. Hasty, and bearing upon the back the names of Oliver S. Hasty, Ezra B. Seavey and James M. Burbank, payable to the plaintiff or order in three months from date. Oliver S. Hasty denied the genuineness of his signature, which was the sole issue in the case.

On exceptions. The petitioner appealed from the award of the county commissioners assessing the damages for land taken by the defendants’ location over his farm, and the jury returned a verdict at the September term, 1872, which was rejected upon the respondents’ motion, and a new jury impaneled. This second jury returned their verdict to the January term, 1873, for a less sum than the county commissioners awarded. Both parties claimed costs.

<p>Bill iN equity, brought by Harriet Hill and Isabella Stevenson against the latter’s husband, as administrator of the estate of the late Alice Murch, who was the complainants’ mother, setting out that, at the decease of Mrs. Murch, there was a sum of money deposited by her in the Saco and Biddeford Savings Institution, and then standing in her name, which she had given to these two daughters, and had delivered the bank book to Nehemiah Hill, the husband of one of them, at the time of such gift, which was established by the testimony of Capt. Hill, who said he had the custody of the book from November, 1862, when the donation was made, till and after the death of Mrs. Murch in September, 1867. Capt. Hill thus described the donation; “She handed me that book —put it into my hand — and said that she gave the money in that bank — on that book — to my wife and Isabella Stevenson. She said, £I give that to Harriet and Isabella.’ - She said she wanted me to take the book, and take care of it, and, after her decease, to divide the money equally between Harriet and Isabella. She said this money was her own private property, and no part of her husband’s estate; that her husband gave each of the boys a homestead and about $1000, but didn’t give the girls anything. I took the book and have held it ever since till last January, when it was used in evidence in a case tried before the supreme court at Saco, and left with the clerk of the court with the papers in that case.”</p> <p>The depositions of the complainants, tending to support this statement, were also put in as proof. The bill complained that, knowing these facts, the respondent refused to draw the funds from the savings bank or to give the complainants the book and an order for payment of the money to them; and prayed for a decree requiring him to do one or the other of these things.</p> <p>The answer admitted the truth of the statements of the bill, according to the belief of the respondent, who further replied that because of such knowledge, information and belief, he omitted to mention this deposit in the inventory of his intestate’s estate, regarding it as the property of these complainants; that, upon petition of the heirs of Alice Murch — other than Mrs. Hill and Mrs. Stevenson — he was cited before the judge of probate to show cause why this sum should not be included in his inventory and accounted for by him in his official capacity; and, upon appeal' taken by the heirs from the decree of the judge, the supreme court of probate ordered and decreed that he return an additional inventory of this money and charge himself with the same, in his capacity of administrator, and with the interest accrued thereon, though he represented to said court the claim of these complainants to this property; that, in accordance with said decree, he inventoried said sum and charged himself in his administration account with its amount, $1078.96 ; that suit was commenced, in the name of the judge.of probate, upon his official bond, for the benefit of the heirs (except these complainants) the breach alleged being the failure to return a true and perfect inventory, in that this deposit was not inventoried; that the jury returned a verdict for the plaintiff, on which — the exceptions taken being overruled —judgment was rendered. See the report of this ease, Bourne v. Stevenson, 58 Maine, 499.</p> <p>For these reasons, the respondent averred that his refusal to draw the money, or to aid the complainants in doing so, was proper and reasonable.</p> <p>The fact of a gift will not be disputed ; still, Alice Murch was the legal creditor, in whom alone a right of action for the money vested. Tillinghast v. Wheaton, 8 R. I., 536. Thereafterwards she and her legal representative became the trustee of the plaintiffs, to uphold their legal right of action.</p> <p>The refusal of the trustee to execute his trust entitles the beneficiaries to this process, to compel performance. Hill on Trustees, part II, c. 4, § 1, and part III, c. 2, § 1; Trowbridge v. Holden, 58 Maine, 117.</p> <p>The probate appeal and decree, and the judgment at law, so far as these complainants are concerned, were res inter alios. Lewis v. Bolithc, 6 Gray, 137. We are entitled to a decree. Johnson v. Ames, 11 Pick., 181.</p> <p>relied upon Bourne v. Stevenson, 58 Maine, 499, and the facts ascertained by the verdict in that case and the decree in the probate appeal.. The rules of , the savings bank, printed in the book, and constituting part of the > contract between it and the depositor, provided for a withdrawal or transfer of the funds, or any part of them, only by the depositor dr upon a written and attested order. •</p>

Bill in equity brought by tbe widow of the late Capt. Thomas Lord, who died, testate, in December, 1861, leaving no issue. The defendants were designated by him, and appointed by the probate court as executors of his will, which was dated December 19, 1857, by the second clause of which he gave to his wife, Lucy Lord, $1,000 in money, all the household furniture, plate, &c., &c., absolutely, and the use of the homestead, and the interest or income of $6,000, during her life.

On report. Writ oe entry to recover possession of land in Lyman, conveyed to the demandant by Cyrus K. Conant, and which the tenant claimed under a tax deed from the treasurer of that town, who sold it for non-payment of a tax there assessed against said Conant, as a non-resident, in 1862. The taxes for subsequent years were paid by the demandant, who tendered ten dollars in full for the tax, expenses and charges of 1862.

On exceptions. Assumpsit upon a promissory note, brought originally in the municipal court of Saco, in which city the plaintiff resided, the defendant living in Scarborough, in Cumberland county.

<p>On exceptions.</p> <p>Hearing upon a motion, filed by the petitioner, to set aside the verdict of a sheriff’s jury, assessing the damages done to the petitioner’s land by the location over it of the respondents’ railroad. The ground of the motion was that the person appointed to preside at the hearing instructed the jury that, in making a view of the premises damaged, they had no right to go outside of the exterior limits of the railroad location, nor to go upon the remaining parts of the tract of land, through which* said location runs; and, at that view, the jury were prevented.by the presiding officer from going upon, or examining the remaining-parts of the injured premises, except so far as they could be seen by standing upon the location, although the petitioner’s counsel requested that-the jury be taken around and over the remaining portions cut off by the location, and part of the jurors started to go off the location for that purpose, when they were recalled by the presiding officer, who then instructed them that they must keep within the location lines.</p> <p>The premises were a field of twenty-two acres of such nature that it was impossible to see the whole tract from the location limits.</p> <p>The justice presiding at nisi prius ruled pro forma, in order , to present the question arising upon these exceptions, that the verdict be accepted and confirmed, and the petitioners excepted.</p>

On report. Assumpsit upon a note dated February 21,1871, for $800, given to the plaintiff by the defendant in payment for the former’s interest in the assets of a partnership previously existing between them. The defendant filed a small note of the plaintiff, and an account, in set-off. The plaintiff, after reading the note in suit, admitted his liability for the $75 note filed in set-off and $60.40 of the account, and rested his case.

On exceptíons and motion eor a new trial. Case, for injuries occasioned by defective highway. While riding in the defendant town, the plaintiff’s wagon struct against some “raised logs” in the travelled part of the road, on account of which his horse became uncontrollable, ran an hundred and twenty-five feet or more, when plaintiff was thrown out and injured.

Petition for mandamus. In the spring of 1871 the county commissioners of York county located a way partly over the land of Thomas M. Davis, and awarded him sixty dollars as damages. Being aggrieved by this estimate, Mr. Davis presented his prayer to have it increased at the April term, 1872, of the court of county commissioners.

<p>Bill in equity.</p> <p>April 8,1845, Robert Moon owned land bordering upon the Monsam river in Sanford, at a point where it was supposed a dam and mills could be profitably erected. To facilitate á sale of it for this improvement, Moon conveyed an undivided half of it, on that day, to the late Ichabod Erost since deceased, taking back the bond of the same date, the condition of which is recited in the opinion. Just before the expiration of the ten years within which the power of sale was intrusted to said Frost, he went to Saco and there made a conveyance of the half of the premises deeded to him by Moon to one Boyd who, at the same time and as part of the same transaction, reeonveyed it, by deed of warranty, to Frost, who put his deed to Boyd upon record soon after, but retained the one from Boyd to him for more than a year before recording it.</p> <p>Robert Moon conveyed his interest in this property to his son, Duxbury Moon, who transferred it to the complainant. The respondents are the widow and children of Ichabod Frost and hold whatever title he had.</p> <p>A demurrer was filed by all the defendants, and they all answered, and documentary proofs and depositions were put in on both sides. The questions presented and decided appear by the opinion.</p>

<p> Assignment, delivery and indorsement of a promissory note by a married woman. Amendment. </p> <p>Where a woman assigns by delivery a note payable to her order and after-wards marries the maker, her indorsement after such marriage transfers tbe legal title.</p> <p>The return day of a writ may be amended according to the evident original intention.</p>

On exceptions. Writ oe entrt demanding possession of certain premises in Sanford, in this county. There was no derivation of title in the declaration but the demandants filed the “informal statement” provided for by E. S., c. 104, § 3, in. which they named Stephen Willard as the original holder of their title, and thence traced it through Morse & Mayberry, Thomas Hobbs and Ira T. Drew to themselves.

On exceptions. TMs was a petition to have a decree of divorce between these parties, procured in this court in York county, in 1871, upon the husband’s libel, set aside for fraud. The facts upon which this petition is based are stated in the opinion. The prayer of the petition was granted at nisi prius and the respondent excepted. Oases cited from other States do not affect proceedings in this State, where the whole matter is regulated by statute.

On motion rob a new trial. This action was brought against a recent sheriff of York county, for an alleged neglect of his deputy, in not leaving for record with, the register of deeds, within three months after the levy, an execution and extent made thereof by the deputy, whereby the plaintiffs lost the benefit of the levy.

On report. Debt, brought in the name of the judge of probate for this county, for the benefit of Mark E. Wentworth, upon a bond given by the defendants for the faithful performance by Abby M. Todd of her official duties as administratrix of the estate of the late Nathaniel Todd, deceased. The bond was dated August 6, 1867, the day upon which she became administratrix.

On exceptions. The plaintiffs sued the defendants for obstructing with a building a way leading from the highway to the formers’ buildings. It was asserted that the way originated in necessity, the premises to which it was appurtenant being carved out of the estate of the plaintiffs’ grantor ; and a claim to it by prescription was also set up.

On exceptions and motion eor a new trial. Assumpsit on a contract for the maintenance of the plaintiff and Ms wife during their lives, in consideration of the conveyance to the defendant of a farm owned by the plaintiff.

<p> Rescission of settlement obtained by fraud essential to a recovery. </p> <p>Where an. insurance company show, in defence to a suit upon a policy, that the plaintiff has accepted a specific sum in adjustment of his loss and the assured replies that the settlement was procured by fraud practiced upon him by the defendants, it will be necessary for him to prove that he has returned the money received upon such settlement before commencing his action ; otherwise it cannot be maintained.</p>

On report. Debt, brought February 12, 1872, in the name of the judge of probate for the benefit of a judgment creditor, upon the bond of the executors of the estate of the late Nathaniel Oilman. The defendant’s intestate was one of the sureties upon the bond.

On exceptions. Complaint for flowage of the plaintiff’s meadow by the defendants’ dam, between the middle of May and the first of September of 1867, and of each year since 1867, when the dam was repaired and rebuilt. The defendants claimed that they did not then raise the dam any higher than the old dams were, and that they had a right to build and maintain it as they did under their deeds.

On exceptions. Assumpsit upon a note dated June 14,1870, for $557.58, payable at tbe Tieonic National Bank of Water ville, in four months from date. Tbe defence was that it bad been altered by adding a penalty clause, for tbe payment of interest at tbe rate of two and a balf per cent a month after maturity. Tbe facts relative to tbe series of notes, of which this was one, partially appear in tbe opinion, and in tbe similar case of Pulsifer v. Orowell, ante, page 22.

<p>Pledge — created by delivery and preserved by possession.</p> <p>To constitute a pledge, there must be a delivery and retention by the pledgee of the thing pledged.</p> <p>The lien created by a pledge can be maintained only by a continued possession of the property pledged.</p>

On -exceptions and motion eor a new trial. Replevin of a sled, harness and rope, which had been attached by William H. Libby, a deputy of the sheriff of this county, upon a writ in favor of Alonzo P. Gardner against Donham Campbell, and placed by the officer in Mr. Gardner’s hands for safe keeping. They were taken from his possession, upon this writ of replevin, by George Wheeler, another deputy of the same sheriff, on the seventeenth day of September, 1871.

On exceptions. Case for a nuisance by closing the navigation of the Kennebec river, to the special injury of the plaintiff, under, the circumstances stated in the opinion. A nonsuit was ordered, upon proof of the facts alleged, and the plaintiff excepted. cited Knox, v. Chaloner, 42 Maine, 150, and cases there cited; Cole v. Sprowl, 35 Maine, 161; Browns.

On exceptions and motion foe a new teial. Case for. injuries from defective highway. The plaintiff, the owner of a mare and colt, turned them ont to water, one Sabbath afternoon, upon the highway in the defendant town. The colt started into a trot and ran away, when the plaintiff caught the mare, took a “turn in the halter around her nose,” mounted upon her back, and started in pursuit.

<p>Capacity to sue admitted by general issue. Landlord and tenant — how that relation arises.</p> <p>That one who sues as surviving partner has not given the bond required by law must be pleaded in abatement, to defeat the action, since a plea of the general issue admits the plaintiff’s right to sue in the capacity stated in his writ.</p> <p>The father of the defendants, for several years preceding his death, used a water power under a lease from the plaintiff, and the defendants continued their father’s business after his death, and to use this water power therein in the same manner he did; held, there being nothing to repel the presumption thence naturally arising, that a jury would be justified in finding that the defendants went into possession under the letting to the father, and kept it as his successors or assigns, by permission of the plaintiff; and that a nonsuit, upon this state of the facts, was improperly ordered.</p> <p>The law refers a possession rather to a rightful than to a wrongful title; hence, in the absence of evidence to the contrary, it will presume in a case like the present, that the defendants are privy to the term granted to their father; if their possession was referable to some other title, it was for them to show it, for this must be a matter lying within their own knowledge.</p> <p>The correct doctrine seems to be that, in such cases, a contract may be implied, so long as it is left to mere implication to determine whether the occupation is with or without the assent of the owner, and whether it is in submission to his title or adverse.</p> <p>It was competent for the plaintiff to introduce in evidence the lease to the father, to explain the use and occupation of the defendants upon some other theory than that of disseizin.</p>

On report. Case, to recover for injuries sustained by the plaintiff upon Windsor street in Pittston, a way which that town was bound to keep in repair, but which the declaration alleged to be defective and that the plaintiff suffered an injury, while lawfully and carefully travelling over and along said street, by reason of such defect.

On report. Assdmpsit to recover four assessments of twenty-five per cent, each, upon ten shares of the stock of the plaintiff corporation, which they… Held: that this change of directors could not be accomplished, and therefore the proxy was destroyed without being ,used. The court were to render such judgment as the evidence ,and law required. .After Thomas S. Lang knew of the subscription, he availed 'himself of it by giving a proxy to change the directors to suit himself.

Bill in equity. The facts upon which it is based, and the end sought to be accomplished by it, are fully stated in the opinion.

<p>What is sufficient notice under B. S., c. 24, § 32.</p> <p>A notice and request delivered to one member of tbe board of overseers of the poor is a sufficient compliance with the requirements of R. S., c. 24, § 32, to enable an inhabitant, who is not liable for the support of a pauper, to recover expenses which he has necessarily incurred for the relief of such pauper, after giving such notice.</p>

<p>On exceptions.</p> <p>This was an action for money had and received to recover sixty-five dollars, paid for a certain patent right, the plaintiff claiming that he had rescinded the contract for fraud of the defendant, and also contending that the contract was only a conditional one, and that the money was recoverable back because the condition had not been performed.'</p> <p>The case was committed to the jury just before adjournment at night, with authority to seal the verdict after adjournment of court for the day, and return the same to court upon the following morning. In the morning the sealed verdict was opened, declared and affirmed by the jury for the sum of nine dollars thirty-one cents, and the clerk minuted the figures of it in pencil upon the docket. This was done by eleven of the jurors, by the consent of counsel on both sides, the twelfth juror not being in his seat. Some time afterwards, but before the jury had separated or left their seats, and before the succeeding cause was called for trial, the foreman called the plaintiff’s counsel to him and asked if it would be improper to inform the court that there was a mistake in the verdict; and thereupon the said counsel informed the court, and upon inquiry by the court, all of the eleven jurors affirmed to the conrt that the nine dollars thirty-one cents was the sum by them ascertained to be due as interest upon the $65 claimed, and that they intended to render a verdict for a sum equal to said sum of $65 and nine dollars thirty-one cents added together.</p> <p>Whereupon counsel for defendant was requested to allow the eleven jurors to retire for the purpose of correcting their verdict, subject to the same objections that would exist against the twelve jurors doing so, but he refused, upon which the jury were kept in their seats, while another cause was on trial before another jury, and for several hours till the other juror returned in court, when he made the same statement as to the error, which his fellows had; and the court then ordered the jury to rétire and correct their verdict, by making it what they intended to make it. The jury did so, returning a verdict for seventy-four dollars and thirty-one cents, which was accepted and affirmed as the verdict in the case. The twelfth juror had gone home on business, the clerk obtaining consent for him, after counsel had consented to take the verdict in his absence.</p> <p>To this order and direction of the court the defendant excepted.</p>

On exceptions. Assumpsit to recover sums paid at various times between June 21, 1871, and November 9,1872, the date of the writ, for the support of Rebecca J. Stackpole, wife of Joshua B. Stackpole, in the insane hospital. The first notice given by the overseers of the poor of Bowdoinham to those rof Phippsburg was dated June 9, 1871, when the first bill from the hospital was received by the former.

On exceptions and motion eor a new trial. Assumpsit upon an insurance policy issued by the defendants upon the plaintiff’s ship, Ida Lilly, claimed to have been injured in Charleston harbor, S. C., in the summer of 1866, during the life of the policy, and by a peril of the seas therein insured against. Suits were instituted, at the same time with this, against three other companies, upon as many policies, covering the same risk.

<p>O . FACTS AGREED.</p> <p>íSsumpsit upon an account annexed, brought October 31,1867. Tne statute of limitations was pleaded in defence, as appears by the opinion in which the facts are stated.</p> <p>A witness, called by the plaintiff, testified that Mr. Springer examined the books and pronounced the account upon them correct ; but added that the last four items of the account annexed to the writ were not then upon the books.</p> <p>This case has been brought into the law court before. See 60 Maine, 436.</p>

On facts agreed. Assumpsit to recover dividends declared by the defendants upon forty-five shares of their capital stock, owned by the plaintiff on the first day of January, 1872, and ever since; and, during all that time, standing in his name upon the books of the bank. July 1, 1872, a semi-annual dividend of three per cent, was declared, and the plaintiff demanded the $135 thus accruing upon his shares, on the thirteenth day of August, 1872.

On report. Assumpsit to recover two and a half per cent, commissions for services in procuring charters from the government, in December, 1864, for the defendant’s two ships, the Mayflower and the Ida Lilly, for the transportation of hay.

On exceptions. Forcible entry and detainer to obtain possession of certain premises devised to the complainant by her late father, Crispus Graves, by a will executed June 5, 1837, by which he gave the use and income thereof for life, to Jenny Graves, his wife, who died in December, 1866 ; and also bequeathed to said Jenny, certain personal property, and then provided that all the rest and residue of his estate “should descend and be distributed agreeably to the laws of this…

<p>On exceptions.</p> <p>Assumpsit upon this receipt; “Received of Patrick K. Millay, three hundred and twelve tons of ice, the property of the Great Palls Ice Company of Washington, D. C., and which was attached by him on a wilt in favor of Edward K. Harding against said Great Palls Ice Company, and which we promise to return to the said Millay or to the officer holding the execution, within thirty days after judgment, without demand. Liability on this receipt limited to three hundred and twelve dollars. November 12,1872.</p> <p>C. G. Underwood by Otis Whitney.</p> <p>Otis Whitney.”</p> <p>The occasion of the giving of this receipt, which was written by J. W. Spaulding, Esq., after he had been consulted by Whitney, was that the ice mentioned had been attached upon Mr. Harding’s writ against the Great Palls Ice Company. The testimony showed that the ice belonged to Mr. Underwood, who was then shipping it to that corporation.</p> <p>The defendant Underwood contended that Whitney had no authority for such a use of his name, and objected to its reception in evidence against him. The only authority shown for so executing it was the telegram recited in the head-note and opinion, and the advice of Mr. Spaulding. After the introduction of the despatch, the presiding justice admitted the receipt and the defendants excepted, the plaintiff having obtained a verdict for $312.</p>

On exceptions. Assumpsit upon a note for $320, dated July 13, 1872, payable in sixty days from date with interest at eight per cent. There were two counts, one declaring on the note as if signed by the defendant alone, and the other stating that it was a joint and several note, executed by the defendant and two others.

On exceptions. Replevin of a mare and two colts foaled by her. The writ was dated October 12, 1872, and the animals were taken upon it October 11, 1872, while the defendant was in New York, and service was made upon him November 19, 1872, after his return home. The defendant pleaded the general issue, and a right to the possession of the property replevied at the time they were' taken.

On exceptions. Petition, under Public Laws of 1872, c. 27, as amended by those of 1873, c. 125, to enforce a lien upon the stallion “Joe Hooker,” under the circumstances stated in the opinion. The respondent demurred to the petition, for the reasons considered by the court; and excepted to the overruling of his demurrer. The petitioner had no lien at common law.

<p> Devisee personally liable for legacy upon land accepted by him. </p> <p>The bequest to the plaintiff is a charge upon the land devised to the defendant; but the provision for its payment out of the proceeds of the sale of the lot is merely directory, and not mandatory. .</p> <p>The defendant having taken possession of “the plains lot” devised to him, immediately after the will was probated, and being sole legatee of all the testator’s estate, both real and personal, subject to the charges upon the plains lot, thereby accepted the bequest, and, after this lapse of time, is liar . ble to pay the plaintiff’s legacy, whether he has sold the plains lot or not.</p>

<p>Deed — construction of. Mortgager and mortgagee — rights of.</p> <p>The description in a deed — “The farm on which I now live in Pittsfield, being lot No. 9, in the second range of lots in said town, according to D. Stewart’s plan and survey — ” conveys only so much of the “farm” as is within “lot 9.”</p> <p>When those holding under the mortgager have entered and ousted the mortgagee in possession, he may maintain against them a writ of entry declaring on his own seizin generally, have a judgment as at common law, and claim and recover rents and profits proved.</p> <p>Such a judgment will not be deemed a waiver of a prior foreclosure commenced by publication; nor will it interfere with the right of redemption.</p>

On exceptions. Indictment for a defective highway. The alleged defect was admitted, the defendants contending that they were not liable to maintain and keep in repair the way in question. February 9th, 1827, the proprietors of Norridgewock Falls Bridge were incorporated and authorized to erect a toll bridge “across the Kennebec River between Madison and Anson,” at some suitable place between Weston’s Ferry and Norridgewock Falls.

Trover for the conversion of fourteen tons of coal. In the summer of 1869, Mr. Morrison wrote from Skowhegan to Wallace & Co., coal merchants of Boston, for a small cargo, of one hundred and twenty-five gross tons, of Cumberland coal. Not readily finding a vessel of suitable size for this quantity, they shipped from Baltimore to Gardiner, per brig Waredale, July 8, 1869, two hundred and fifty tons of that coal, consigned to their own order.

<p>On exceptions.</p> <p>Assumpsit to recover for labor in cutting and hauling certain spruce and cedar logs.</p> <p>The declaration contained a countin the ordinary form of assumpsit upon account annexed — the account being for a “balance due for labor in winter of 1871-2, in cutting and hauling spruce and cedar logs .... upon which logs the plaintiff claims a lien for the balance due him as aforesaidalso, two other indebitatus assumpsit counts for the same services with similar averments of a claim for lien.</p> <p>Notice was ordered by the court upon J. B. Foster and’William P. Hubbard, claimants and owners of the logs, who appeared and filed a general demurrer to the declaration, the grounds relied upon in support of which are given in the opinion. The demurrer was sustained and the plaintiff excepted.</p>

On exceptions. The declaration in this case was similar to that in the preceding case of Getchell v. Gooden. At the return term personal notice was ordered upon William H. Smith as owner and claimant of the logs upon which plaintiff sought judgment for a lien. Mr. Smith appeared and filed a general demurrer to the declaration ; whereupon such proceedings were had as are stated in the opinion.

On exceptions. Debt to recover for services and expenses in conveying Charles McCann to Augusta and committing him to theAnsane hospital, he having been adjudged insane by two justices of the peace and quorum, by virtue of R. S., c. 148, § 15.

On pacts agreed. Assumpsit to recover a tax assessed to repair a road, under R. S., c. 6, § 53, five twelfths of the expense being assessed upon the easterly and the rest upon the westerly half of an unincorporated township. The way lay entirely within the limits of the westerly half of said township, while the plaintiff’s land, assessed for this tax, lay wholly in the easterly half.

On exceptions. The county commissioners of this county on November 23, 1870, on petition of Caldwell et als., laid out a certain road, commencing in Macwahoe plantation and running through certain other unincorporated plantations to the mills in the town of Sherman. Proceedings were closed at their July term, 1871. At January term, 1873, B. P. Coburn et als., petitioned to have the road discontinued.

On report. Trespass guare clausum, for breaking and entering a lot ot land, and a blacksmith’s shop thereon, on the bank of the west branch of the Mednxnekeag river in Honlton, and between that stream and the military roads and the road to Porter settlement. The entry was made November 20, 1872, simply for the purpose of asserting title, and it was agreed that if the defendant had not the legal right to enter, the damages should be assessed at one dollar.

On exeoption. Assumpsit to recover one thousand dollars, paid by plaintiff for a horse under the circumstances stated in the opinion. The presiding justice ordered a nonsuit and the plaintiff excepted.

On report. Assumpsit to recover for pauper supplies, alleged to have been furnished to Samuel Staples and his family, between the tenth day of April, 1872, and the seventeenth day of May, 1873, the day of the purchase of the writ. The notice, omitting the names and ages of the children, was as follows: “Holden, July 10th, 1872.

<p>■ Notice under B. S., c. 24, § 27 — effect of misstatement in.</p> <p>A notice under R, S., c. 24, § 27, containing a misstatement as to material facts is not a compliance with that statute.</p>

On report. Assumpsit by Dennis O’Leary and his wife. The declaration alleged that in consideration of the payment of eight dollars per month by Dennis, the defendant promised that Dennis and Ids family should occupy a certain tenement, and that he would keep in repair the premises, including an elevated foot walk leading to the wood house connected with the tenement.

On exceptions and motion eor a new trial. Assumpsit upon a promissory note, payable to the plaintiff’s order in three months from its date. The defendant was administratrix of her husband’s estate and the note in suit was given by her for the balance due from the estate to the plaintiff upon a grocery bill. The estate was insolvent and it was contended that there was no consideration for the note.

On report. Assumpsit upon account annexed for board of the defendant’s minor child. The report briefly states that “the daughter of the defendant, a child ten years of age, went to live with plaintiff under the verbal agreement that she was to stay till of age, for her board, clothing and schooling, and she left at thirteen years of age.” If upon these facts the action cannot be maintained, the plaintiff to be nonsuited, otherwise the action to stand for trial.

<p> Practice. Verdict. </p> <p>In any criminal case, (except capital eases and cases wlxere tlie punishment is imprisonment for life,) any presiding judge may, at his discretion, authorize a jury, when they agree during an adjournment of the court, to seal up their verdict and separate, and have it opened, read and affirmed when the court comes in, with the same effect as if pronounced orally.</p>

At the time the report in this case was prepared — see page 173, ante, the reporter had not received the following opinion by Judge Barrows, which subsequently' came to his hands from another justice.