Volume 64 — Maine Reports

On exceptions and motion for a new trial. Action on the case for two libellous articles published by the defendant concerning the plaintiff. The report of the evidence and the exceptions make a book of 218 pages.

Bill in equity to obtain account and conveyance of one-half of certain lands, the legal title to which was in the late James White, but in which the complainant claimed an equitable interest under the circumstances sufficiently stated in the opinion.

<p>On exceptions.</p> <p>Upon the petition of Edward Wiggin and others, the county commissioners located a road running from the plantation of Seven Islands to the west line of the State, in Aroostook county; from which location the appellants above named appealed, and the appeal was heard and tried at the February term, 1875, under the provisions of R. S., c. 18, § 35. The respondents at the hearing made a motion in writing to dismiss the appeal on the ground that said section was repealed; which motion was overruled by the presiding judge, and the respondents excepted.</p> <p>The legislative action which was claimed tohave repealed R. S., c. 18, § 35, and the positions taken in support of the exceptions appear by the opinion.</p> <p>Unless you concede to chapter 171. an existence for an instant, there was nothing for chapter 263 to operate upon, or repeal.</p>

On exceptions. Debt to recover the statute penalty provided by B. S., e. 80, § 43, for serving as constable a writ of replevin in favor of Olive Oyr against John B. Fournier, without having given the bond required by that section. The action was referred to Hon. II. B. Downes wbo made an alternative award, as the court should find the law upon tlie facts stated.

On exceptions. Assumpsit upon a promissory note, which is recited in the opinion. The declaration was as follows ; “In a plea of the case, for that the defendant, at Fort Fairfield, on the 24th day of June, 1869, by his promissory note of that date, by him signed, for value received promised the Joseph Chandler to pay him or order, the sum of $90, half in March next, the dollars balance in September next, and cents, with interest.

Bill in equity, brought to compel the performance of a written contract, dated May 18, 1865, for the sale and conveyance by Mr. Black to the complainants of certain timber lands, therein particularly described, upon payment of two notes dated December 20, 1864, for $907.50 each, one payable on demand and the other in one year with interest annually.

<p>On report.</p> <p>Assumpsit, on a count for money had and received, to recover •the amount assessed upon the plaintiff by the assessors of Brooks-ville, in 1872, in behalf of school district No. 1, in that town, and paid by him under protest, January 27, 1873. The writ was dated March 6, 1873, and the money was actually paid over by the collector to the town treasurer on that day, some hours after the writ was filled.</p> <p>At their annual meeting in March, 1872, the inhabitants of Brooksville passed the vote mentioned in the syllabus and in the opinion, basing this action upon the following “statement of facts in regard"to school district No. 2 in the town of Brooksville,” which was signed by the school committee and a majority of the selectmen : “Having been requested to approve a request to divide and discontinue school district No. 2, and annex it to districts Nos. 1 and 3; we do hereby approve, and give the following statement of facts. The school house has become entirely unfit to keep a school in, and the number of scholars in the district at present, and the prospect for the future do not seem to warrant the building of a new house, or repairing the old one.” The article in the warrant calling the meeting having reference to this subject was couched in the same phraseology as the vote upon it. This cause was submitted upon the facts to the disposition of the court.</p> <p>Mark H. Grindle also brought suit against Mr. Hawes, the collector, for proceedings to enforce payment of the tax assessed upon him in the district to which he was attached by this vote; in which action a nonsuit was ordered upon the ground that the warrant under which the defendant acted was his protection, he having acted in strict conformity to it; according to Nowell v. Tripp, 61 Maine, 426. Other objections made by Jerry F. Grindle to the action of the town, in assuming to divide up the old school district No. 2, are noticed in the opinion.</p> <p>I. The statute contemplates that the municipal officers and school committee shall mature some particular mode of division and submit it to the action of the town, for approval or rejection; not that merely a division shall be recommended, the details of which are to be determined in a tumultuous annual town meeting. The town cannot adopt a division differing from the one proposed. It cannot be seen here whether the town made such a division as the proper authorities approved, or not.</p> <p>II. There were no conditions, proper or otherwise, annexed to this division. Nothing done about the school house.</p> <p>III. The vote was ineffectual. WorthingtonY. Eveleth, 7 Pick., 106 ; Nye v. Marion, 7 Gray, 244.</p> <p>IV. The money was in the hands of the town’s agent, whether it was collector or treasurer.</p> <p>When this suit was brought, the defendants had none of the plaintiff’s money. Smith v. Readfield, 27 Maine, 145; Haynes v. School District, 41 Maine, 246 ; Starbird v. School District, 51 Maine, 101; looJc v. Industry, Id., 375.</p>

<p> Trespass lies for the entry of a mortgagee of improvements. </p> <p>The owner of the fee in possession can recover in trespass for grass and trees cut by the assignee of a mortgage of the possession and improvements made by the party from whom the plaintiff derives his title before such party acquired the title to the land.</p> <p>Such mortgage, purporting only to convey the right which the mortgagor then had by possession and improvement, passes to the mortgagee no interest in the land itself, but only (at best) a right to the improvements placed thereon by the mortgagor, or the equitable right to compensation for those improvements when dispossessed by the owner; nor will the subsequently acquired title of the mortgagor enure to the benefit of the mortgagee.</p> <p>And the conveyance from such mortgagor, after he has acquired the title, will give to his grantee a superior title to the soil and its products, as against the assignee of the mortgagee. A recovery by the defendant in such trespass suit in a real action for the locus, against a party through whom the plaintiff derives his title, will not avail the defendant, if his suit is not commenced until after such third party has parted with the title and possession. Nor will the fact that the defendant was formally put in possession of the locus by an officer, upon a writ of possession in his favor, against the plaintiff’s grantor, prevent the plaintiff from maintaining his action of trespass, if he was not put out of the possession, and had no knowledge of the suit or its result.</p>

On exceptions. This was an action for damages from an injury alleged to have been caused by a delect in a highway in Bucksport.

<p>On exceptions.</p> <p>Writ of entry to recover land the title to which was formerly in William Murch, who conveyed it on the fourth day of May, 1863, to the demandant, then Drusilla G. Sadler, by deed of that date, in which he gives, grants, bargains, sells and conveys the same to her “during her natural life and to hold in trust for her son, Charles A. Sadler,” and for the ten children of John L. Murch, who are mentioned by name, “any other children that may be born to her and said Murch, and for the support of said Murch, the heirs and assigns forever.” Then follows the description at the close of which is this clause : “meaning and intending hereby to convey to the said Drusilla, for her own and the support of John L. Murch during their natural lives, the two first parcels of land conveyed to me by the said John L. Murch, November 1, 1856, and to descend in equal shares to all the children said Drusilla and said Murch shall leave at their decease of the said John, and in such case said Drusilla is to have her thirds only. To have and to hold the aforementioned premises,” &c. . . . “to the said Drusilla G. Sadler, for herself, and in trust as aforesaid, and to her heirs and assigns, their use and behoof forever.”</p> <p>There was no issue of the marriage between the demandant and John L. Murch, who died two years before the commencement of this action. The tenant claimed possession as guardian of some of the children mentioned in the deed. The cause was referred to the presiding justice, who ordered judgment for the demandant, to which the tenant excepted, the right to except having been reserved.</p>

On exceptions. Case for personal injury from an alleged defect in the highway.

<p>On report.</p> <p>This is an action brought by the widow of the late Richard Richardson to recover treble damages for injuries said to have been done to a quarry owned by the decedent and the defendant in common at the time of the former’s death. The heirs of Richard conveyed to his widow by deed all the rents, profits and income arising or accruing from the estate of her late husband, “including the due proportion of the stone quarry,” during her natural life. The question was whether this gave her such title as to enable her to maintain this suit under R. S., c. 95, § 5 ; the disposition of the cause to be according to the construction given this statute.</p>

<p>On report.</p> <p>Assumpsit to recover moneys advanced to ‘pay commutations, under the circumstances stated in the opinion.</p>

On report. Appear by Egery and others from the below stated decree of the judge of probate of Penobscot county. Upon the death of the senior partner of the firm of William Howard & Son, the junior partner, George W. Howard, at the August term 1869, of the probate court, was appointed administrator of bis father’s estate and also gave the requisite bond as surviving partner.

On exceptions. Trespass de bonis asportatis, for taking and carrying away a quantity of manure. Plea, tbe general issue with brief statement of title in the defendant.

On motion and exceptions. Assumpsit upon an account annexed, for the support of William Hurd from December 7, 1871, to May 1, 1872. It was not denied that all proper statute notices and replies were given.

On report. Assumpsit upon this note : “Bangor, April 26, 1870.” “$1,001. Eight months after date we promise to pay to the order of the Maine Mutual Marine Insurance Company one thou - sand and one dollars, payable at Bangor, Maine. Value received. Palmer & Johnson.” This insurance company was incorporated by Special Laws of 1870, c. 470, and became insolvent, was enjoined, and the present plaintiffs appointed receivers under the statute in May, 1873.

On report. Assumpsit upon defendants’ note for $1,001, dated January 2, 1871, payable in twelve months from date to the order of the Maine Mutual Marine Insurance Company. A note of like amount was given by the defendants to the insurance company April 26, 1870, when they received an open policy for it.

<p>On report.</p> <p>Assumpsit upon note given by the defendants to the plaintiffs dated January 1, 1872, for $637.35, and payable to the plaintiffs’ order in twelve months from date. There was also a count upon an account annexed for $212.24, being amount of premiums for insurance effected by Blunt & Co. between January 1, 1872, and May 1873, when the company was declared insolvent, and not indorsed on any note. Blunt, Hinman & Co. gave note for $1,001, dated April 26, 1870, for open policy No. 10, and were parties to the agreement mentioned in previous eases of Howard v. Palmer, and Same v. Hinckley, ante. In January 1871, that firm took up that note, paid the premiums of the year in cash, and took a new open policy. In January 1872, the present defendants who had succeeded to the business of Blunt, Hinman & Co. took up the note then maturing, and gave this note in suit which was for the sum remaining after deducting the premiums of the year from the $1,001 note. The defendants offered to pay the $212.24, and the plaintiffs claimed that sum in addition to the note, because not indorsed thereon. The other facts appear in the preceding cases and in the opinion.</p>

On exceptions. Petition for partition. The petitioner asks to have set off to her one-half of lot number ten on the west side of the Bennock road in the town of Alton, particularly described in her petition owned by her, and previously undivided and occupied in common with the proprietor of the other half, but which she now desired to possess in severalty. The respondent claimed to be sole seized of the whole lot.

On exceptions. Trover for the conversion of plaintiff’s horse by the defendant. April 23, 1873, Mathews bought of Fisk a horse for $125 paying twenty-five dollars in cash and giving his note on seven months for the hundred dollars.

On report. Assumpsit upon a note dated February 15, 1871, for a thousand dollars, signed by the defendant and payable to his order in six months from its date and indorsed by him in blank. No other name was upon it. The defendant alleged that the note was obtained from him by the fraud of Smith and of Leavitt, so that neither of them could recover the amount if suit had been brought in the name of either of them.

<p>On exceptions.</p> <p>Assumpsit to recover for professional services rendered in attendance as a physician upon small-pox patients in Bangor during the winter of-1872-3. Being called by the plaintiff, Hon. J. S. Wheelwright testified that as mayor he took general charge of the cases of infectious diseases in 1872-3, and employed nurses, physicians and assistants to attend. The plaintiff testifying in his own behalf said Mr. Wheelwright employed him, that he (witness) told Mr. W. when the application was first made that he was lame and wished to go to Boston, that after his return from Massachusetts the health officer reported a case to him and he again saw Mr. Wheelwright and asked if he (plaintiff) was expected to attend these cases as city physician and the mayor told him “no,” but that it was customary first to offer them to the person holding that position. Mr. Wheelwright was recalled by the defence and stated that he went to Dr. Preble only because of his being city physician and applied to him to act in that capacity.</p> <p>The defendants put in the city charter and the ordinance relating to the election and duties of city physician containing eight sections, the first of which was this: “Sec. 1. There shall annually be elected on the fourth Monday of March, a city physician, whose duty it shall be to attend under the direction of the overseers of the poor upon all paupers of the city, when in need of medical aid including all the inmates of the alms-house, workhouse and house of correction.”</p> <p>The seventh section requires the city physician to furnish at his own expense “all necessary medicines for the paupers of the city, other than inmates of” the institutions above-mentioned and provides that “he shall receive from the city treasury for his services including medicines to be furnished as aforesaid, such sum as the city council shall annually determine.”</p> <p>The eighth section quoted in the opinion provides for additional compensation for attendance in case of infectious diseases to be also determined by the city council. Upon the sixth day of March 1873, that body ordered the mayor to draw his warrant in favor of Dr. Preble for eight hundred dollars, upon the doctor’s giving his receipt in full for extra services in small-pox cases.</p> <p>The plaintiff declined to accept that sum upon these terms and on the eighth day of August 1873, brought this action upon an account annexed amounting to $1981, and obtained a verdict for $1701.</p> <p>The defendants requested the presiding judge to instruct the jury that the plaintiff must be presumed to know the provisions of the ordinance under which he was elected prescribing the duties of city physician, and in accepting the office he became bound to perform all the duties of the office including attendance upon cases of small-pox and other infectious diseases, and to accept therefor such compensation as the city council should deem just and proper, and in order to maintain a suit therefor he must allege in his writ and prove that said council have voted to allow said sum and that the city have refused to pay, it.</p> <p>“That if the jury are satisfied that the plaintiff was city physician at the time he attended to the cases of small-pox charged in his writ arid was called upon by tbe mayor to attend the cases and did attend them, or if he did attend them without being called upon by the mayor he was bound by the provisions of the ordinance under which he was elected regulating the compensation of the city physician and the mode of payment for his attending upon small-pox cases, and that in order to be able to maintain an action therefor he must allege in his writ and prove that he has complied with the provisions of said ordinance,fand that as one of the provisions of said ordinance is that ‘In cases of small-pox or other infectious diseases, the city physician shall receive such compensation in addition to his annual salary, as the city council may deem just and proper; ’ he is not entitled to any other or greater compensation for his services in attending upon these cases than were allowed by the city council, and in order to maintain his action he must allege in his writ and prove that the city council have voted the sum claimed and that the city has refused to pay it.”</p> <p>“That if the jury are satisfied that plaintiff was city physician at the time he performed the alleged services and that the city council passed an order on the sixth day of March 1873, to allow him eight hundred dollars in full for said services, he is not entitled to any greater sum for said services, and as he has not alleged in his writ that said council have passed said order or that the city have refused to pay it, he cannot maintain this action.”</p> <p>“That the city charter makes it the duty of the mayor to exercise a general supervision over the conduct of all subordinate officers including the city physician, and that the only authority of the mayor over his conduct is limited to the supervision of his duties as prescribed by the ordinance on that subject and that he cannot as mayor excuse him from the performance of the duties of his office, and that the municipal officrs alone cannot excuse him from the duties required of him by said ordinance.”</p> <p>“That the mayor had no authority to employ the plaintiff to attend to the small-pox cases alleged in his writ, and to make the city of Bangor liable to pay for the services alleged in plaintiff’s writ; that it is the duty of the municipal officers of the city to provide nurses, physicians and whatever is necessary in cases of small-pox, that in the discharge of these duties the mayor had not authority to make contracts binding the city or to employ physicians and nurses at the expense of the city, without the consent or confirmation of the board of aldermen or some members of the board, and if the mayor had such authority and employed the plaintiff or if the mayor and aldermen had employed him whether as city physician in his official capacity or in his private professional capacity simply; if he was city physician at the time he performed the alleged services, he is bound by the provisions of the city ordinance regulating and limiting the compensation of the city physician for such services, and that any agreement of the mayor or of the municipal officers if any was made to pay him for his services other than is provided by said ordinance, would not bind the city.”</p> <p>“That if the jury are satisfied that plaintiff was city physician at the time he attended the small-pox eases alleged in his writ and was not bound by the provisions of the ordinance under which he was elected to attend to them, yet if he did attend to them he would be governed and bound by the provisions of said ordinance on that subject in the amount and mode of compensation therefor, and as the ordinance provides that he shall receive such compensation for such services in addition to his annual salary as the city council should deem just and proper, he is not entitled to recover any greater compensation for his services than said council should allow whether he was employed by the mayor or the municipal officers of the city.”</p> <p>The judge declined to give any of the requested instructions, but for the purposes of this trial instructed the jury that the city physician was not bound to attend the small-pox cases sued for ; that if he did attend to them his compensation therefor was not regulated and limited by the city ordinance on that subject; that the mayor had authority to employ him at the 'expense of the city, and that he was not limited to receive for said services such compensation as the council under the provisions of said ordinance should deem just and proper, but was entitled to receive such sum as his services were reasonably worth and that was a question of fact for their determination upon the evidence and the instructions given them.</p> <p>The defendants excepted.</p>

On motion for a new trial, because the verdict for the plaintiff for $35 was against law and evidence. There were exceptions filed to the ruling that the action (trespass quare clausum) could be maintained although the locus in quo was in the occupation of a tenant at will by whose license the defendant entered ; but as the court declares the law well settled on this point no further statement of it is necessary. The facts all appear by the opinion.

On report. Assumpsit upon a promissory note dated October 17, 1872, for three Imndred and twenty-six dollars, signed by Arnold Greenleaf, and payable to the order of the National Insurance Company of Bangor in t-welve months after date, a copy of which is given in the opinion. The note was given for the premium on a policy of marine insurance issued by the National Insurance Company for one year from October 17, 1872.

On exceptions. This was amotion to set aside the verdict of a sheriff’s jury rendered upon the hearing of an appeal from an award of the county commissioners of Penobscot county of the damages done to the petitioners’ land in Brewer in the construction of the respondents’ railroad. The motion alleged the verdict to be contrary to law and evidence, that the damages were excessive and that new and important testimony had been discovered.

<p>Construction of B. 8., c. 1, § 3, and Acts of 1874, c. 215, relating ionotice of injury.</p> <p>Public Laws of 1874, c. 215, approved March 3, 1874, requiring notice to the selectmen of the nature and attendant circumstances of an injury caused by a defective way within sixty days of the occurrence of the accident, (excepting in cases of injuries “already sustained”) took effect at the expiration of thirty days after the adjournment of the legislature that enacted it and consequently has no application to the case of an injury received March 7, 1874.</p> <p>The words “already sustained,” in the Act of 1874, c. 215, must be referred to the time when the act took effect and not to its date. In legal contemplation the words are spoken when it becomes the law.</p> <p>B. S., c. 1, § 3, fixing the time when enactments become laws is a general law of the state affecting all subsequent legislation unless there be some indication of a contrary purpose. Though no legislature is bound by its provisions acquiescence will be presumed unless dissent bo shown.</p>

On report. Assumpsit on a promissory note, executed and delivered on the Lord’s day, given in settlement of a book account which the plaintiff had against the defendant. When the action came on for trial the plaintiff’s counsel asked leave to amend his writ, by inserting a count upon an account annexed in the usual form, to recover for the items on his books for which this note was given.

On exceptions. Eeal action submitted to tbe court with the right to except. The title involved, after the filing of a disclaimer as to the residue, was a strip of land in Bangor a yard wide and about thirty-five feet long. The demandant owned a lot on French street and the tenant one on Broadway situated so that the line in question was the boundary between them. The distance across these lots from one street to the other was greater than the deeds called for.

On report. This was a motion presented by Hon. A. Sanborn in behalf of the bar of Penobscot county, for the removal of Benjamin Kim-ball from the office of an attorney and counsellor at law.

<p>On motion eor new trial.</p> <p>Assumpsit upon the following agreement. No action has been commenced by the plaintiffs against Eben Thissell on the contract therein mentioned, which is also below stated.</p> <p>A demand upon the defendants and upon Eben Thissell for payment, was duly made before this action was brought. The only question presented to the court for decision was whether or not this suit can be maintained by the plaintiffs against the defendants without any previous action brought by the plaintiff’s against Eben Thissell. It is admitted that this question was not raised at the trial of the ease.</p> <p>The writings referred to were these:</p> <p>“Bangor, June 14, 1872.</p> <p>Prentiss Brothers hereby agree with Eben Thissell to drive his logs from the head of 2d Lake, taking them as he left them about a week ago, to the Penobscot boom, and to drive all above, for which said Thissell agrees to pay them one dollar twenty-five cents per thousand feet stumpage, scale as soon as the logs arrive at the Penobscot boom; said Thissell also agrees to pay them two dollars a thousand feet for driving the twenty-seven thousand feet, E. Clements’ scale, landed on Telos Lake, to the Penobscot boom, mark jet, mark of other logs mentioned above, tet jet.</p> <p>Prentiss Brothers.</p> <p>Eben Thissell.</p> <p>We hereby agree that the said'Eben Thissell shall make the payment as per the.above contract, promptly, when the logs are driven as above specified, to the Penobscot boom.</p> <p>D. W. Garland & Co.”</p>

<p>On exceptions.</p> <p>Indictment for falsely representing an unsound liorse to be sound, whereby the purchaser was defrauded.</p> <p>The defendant demurred generally to the indictment and excepted to the overruling of his demurrer.</p> <p>This was a mere warranty of soundness, for the breach of which an action lies; but it is not an indictable offence under R. S., c. 126, § 1.</p> <p>It was a false representation as to the quality of the article sold; hence indictable. 2 Bishop Or. Law, §§ 367, 369; People v. Haynes, 14 Wend., 546; People v. Orissie, 4 Denio, 525 ; Peg. v. Heighley, Dean & B., 145; 26 Eng. L. & Eq., 631; Peg. v. Abbott, 2 Carr. & Kir, 629; Peg. v. PemicJc, 48 Eng. Com. L., 48 ; Com. v. Stone, 4 Mete., 43.</p>

Bill in equity, to redeem from a mortgage, claimed in defence to have been legally foreclosed agreeably to the provisions of the E. S. of 1857, c. 90, § 3, as appears by the opinion, which fully states all the facts essential to an understanding of the legal questions determined.

On exceptions. Case for a nuisance occasioned by casting out of the defendant’s saw-mill and into tbe Piscataquis river refuse stuff, which was floated by a freshet in the spring of 1871, upon the interval land of the plain tiff,, situated below the mill, upon the same stream, so that great injury was thereby caused and considerable expense in removing the same.

<p> Bight to me of water. Sic tuo, &c. </p> <p>A mill owner has no right to unnecessarily and unreasonably detain water from those who have a right to use it subsequent to his own; and he will be liable in damages for doing so.</p> <p>What is a reasonable use, and what an unreasonable detention, are questions of fact for the jury.</p>

On exceptions. Assumpsit for breach of warranty of a pair of steers. The defence was that the sale was made by defendant’s minor son, Herbert, to whom they belonged.

On REPORT. Assumpsit upon an account annexed and the money counts, based upon the following facts, as stated to the court for the sole purpose of determining whether or not the action could be maintained upon proof of them. “The plaintiff and defendant intermarried July 20, 1869, and lived together as man and wife up to October 30, 1871, and then parted.

On report. Debt upon the bond of Martin L. Robinson and his sureties, for the faithful performance by him of the duties of collector of taxes. The defence was that the penal sum -was altered after delivery by erasing the word “hundred” and inserting “thousand,” without the knowledge or consent of the sureties.

<p>On report.</p> <p>Trespass de bonis for taking and carrying away a quantity of cedar and other shingle timber. The defendant pleaded the general issue and a brief statement that the plaintiff was tax-collector of Orneville for 1869, and gave bond for that year and also for the collection of the uncollected balance of the taxes- of 1868, but failed to collect and pay these taxes to the defendant, who was treasurer of the town, and the defendant thereupon issued his warrant of distress to the proper officer, upon which the property mentioned in the writ was taken and sold; and this was the trespass complained of.</p> <p>Among other objections to the sufficiency of the proceedings, the defendant suggested that the warrant issued to him was not such as to enable him to collect the taxes, because it directed him to seize only such property as was not exempt from attachment, as appears by the report of the case of Orneville v. Pearson, 61 Maine, 552; and also that the list of taxes committed to him was not under the hands of the assessors.</p> <p>The cause was submitted to the court in banc to enter such judgment, and for such damages as the law and facts might seem to require.</p> <p>argued that Mr. Canney issued the distress warrant for too largo a sum ; and cited cases to show that this rendered it void; that no such commitment as it alleged was ever made; and that the warrant given Mr. Pearson was not such that he coixld enforce payment of taxes under it.</p> <p>The distress warrant was good as to such sums as Pearson had actually received as collector, Prescott v. Moan, 50 Maine, 347; Johnson v. Goodridge, 15 Maine, 29.'</p>

<p>Amendment. Assumpsit — when not maintainable.</p> <p>A grantor verbally bargained certain land for a specified consideration, and, either by mistake or fraud, the premises conveyed did not include a parcel of ten acres embraced in the verbal agreement; whereupon, without rescinding the contract, the plaintiff brought assumpsit to recover the value of the lot thus omitted, or a proportional part of the consideration paid: held that the action would not lie.</p> <p>The plaintiff had her election to have the deed reformed in equity, if the omission was by mutual mistake; or to bring an action of deceit for damages, if the lot was fraudulently omitted; or seasonably to rescind the whole contract and recover the entire consideration, if fully paid; or could defend against the notes given for the purchase (if any were outstanding) by way of recoupment, to the extent of the injury sustained; but could not retain that portion of the land covered by the deed and sue for the value of the portion omitted. The rescission must be total to maintain assumpsit, in which the whole consideration (if anything) would be recoverable.</p> <p>The plaintiff originally declared in a special count setting out the bargain and alleging the broach to he the omission of ten acres mentioned; she after-wards added the money counts. She is now permitted, upon terms, to further amend so as to change the action into one for deceit, in order to save her claim from being barred by the statute of limitations.</p>

On report. Trespass vi et armis, for an assault upon the plaintiff' by the defendant and for an imprisonment by causing ber to be committed to and detained in the coxmty jail at Bangor for six months. Upon the eighth day of May, 1866, the governor and council commissioned Lyman Lee as a trial justice of Piscataquis county,. and he qualified himself by taking the requisite oaths, on the twenty-ninth day of the same month.

On report. Debt to recover a poll tax assessed in due form against the defendant in Dexter for the year 1871; submitted to the presiding judge who found that, though working in Dexter (where he had resided in former years) upon an engagement for a year’s work, on the first day of April, 1871, the'defendant was then a resident of Eoxcroft.

<p>Deed — construction of.</p> <p>The plaintiff took conveyance of a parcel of land described as “being the most northerly fifty acres of lot number forty-two, according to Norcross’ survey.” A county road previously constructed, was laid along the east line of lot No. 42, one-half of its width being upon said lot, and the other on the lot next easterly of it. The court held that, to obtain his fifty acres, the plaintiff must go to the east line of lot No. 42, which was the centre of the road aforesaid; and that resort could not be had to the covenants of the deed (especially to that warranting the land to be free from incumbrances) in order to change his line, so as to run it along the westerly side of the road,</p>

On report. This was a petition by Amos Tracy of Abbott, in this county, ■under E. S., c. 24, § 13, for an alteration of the assessment made upon him to relieve his mother under a judgment of this court made upon complaint of the defendants under said chapter, at its December term, 1871, in Somerset county. There was no motion tiled to dismiss the petition.

On exceptions and motion foe a new trial. Appeal from tlie decree of the judge of probate of Waldo county, allowing the account of Edward L. Bradstreot, the appellee, as guardian of the appellant, while Anna Morrison, the wardship, being terminated in February, 1870, by her marriage to Charles L. Bradstreet.

On motion for a new trial. Assumpsit. Upon the tenth day of December, 1872, Mrs. Greeley held a note for $1,121.30, dated August 27, 1866, payable on demand with interest, to her order, signed by James White, and having indorsed upon it one payment of four hundred dollars, made September 24, 1868.

<p>On exceptions.</p> <p>Assumpsit upon an account annexed for a balance of $2,802.95, brought by a son against the father to recover for services rendered for the fifteen years next after minority had ceased, and for some other items. There were exceptions taken to the rulings of the court upon the subject, but the only one that need be noticed was to the exclusion by the court, upon defendant’s objection, of cumulative' testimony which the plaintiff proposed to put in after the defendant had closed his evidence. The jury rendered a verdict for only $62.35, and the plaintiff excepted.</p>

On exceptions. Assumpsit. The defendant owned and occupied real estate in Liberty, which he mortgaged to one Peavey, who assigned the mortgage and the notes thereby secured to the plaintiff. Mr. Collins, upon the twenty-fifth day of June, 1870, insured the buildings upon said land, and their contents, with the Connecticut Fire Insurance Company, for eleven hundred dollars.

On report. Real action, commenced September 14, 1871, “wherein the said Moulton demands against the said Trafton one messuage in Unity, in said county, bounded and described as follows, to wit:— a saw mill and shingle machine, known as the Trafton mills, and the land upon which they stand, and the land around said mill and used in operating the same in the manufacture of lumber, together with the water privilege used in operating, said mills, and the road or private way…

On facts agreed. This case, as made by the parties, was submitted to the whole court, under the provisions of R. S., c. 77, § 14. The writ is dated August 12, 1874. The plaintiff declares against the defendant as indorser of a certain promissory note dated April 12, 1859, payable to the order of the defendant, in six months, and by him indorsed to the plaintiff. To the signature of the maker, there was an attesting witness.

<p>Bill in equity, inserted in a writ, dated March 28, 1873, brought to redeem, from a mortgage thereon, certain described premises.</p> <p>The bill, brought by five complainants, Wallace, Sanborn, Wyman, Kimball and Fogler, against Alfred W. Stevens, Harrison Stevens, Gould and Chapman, alleged that Harrison Stevens was seized in fee or otherwise of about one hundred and twenty-six. acres of land in Jackson on the twenty-ninth day of July, 1867, and on that day mortgaged it to Alfred W. Stevens, and on the twenty-eighth day of October, 1869, conveyed twenty-five acres of it by deed of warranty, to Gould and Chapman; and on the second day of November, 1871, mortgaged about seventy-five acres of it (lying in two lots) to David Lincoln; that on the twenty-second day of December, 1871, all the right which said Harrison had, on the tenth day of November, 1871, (when the same was seized upon a warrant of distress) to redeem this last named parcel of seventy-five acres was sold to George E. Wallace; that Alfred W. Stevens, on the twenty-sixth day of December, 1871, took possession of the premises to foreclose his mortgage of July 29, 1867, and has since continued in possession; that on the twenty-eighth day of December, 1872, the said Harrison’s right to redeem above twenty-five acres of the original tract, not conveyed by him except in mortgage to said Alfred (as aforesaid) was sold to the four complainants, Sanborn, Wyman, Kimball and Fogler* at sheriff’s sale; that on the twenty-sixth day of December, 1871, the complainant, Wallace, demanded an account of the sum due of said Alfred, vrlio refused to give it, claiming his whole note and interest, which the bill alleges is more than was then really due; but it appeared by evidence that this demand and refusal were some hours before the Lincoln mortgage was assigned to said Alfred. The bill further averred that Gould and Chapman pretended that Alfred W. Stevens conveyed to them, for $200, all his interest in the parcel of twenty-five acres bought by them of said Harrison, but that no such deed was ever recorded.</p> <p>The complainants prayed for an account and to be admitted to redeem.</p> <p>We are entitled, not only to relief but to costs against Alfred W. Stevens for his refusal to account on demand. Roby v. Skinner, 34 Maine, 270; Pease v. Benson, 28 Maine, 336.</p> <p>Harrison Stevens, Gould and Chapman are rightfully made parties. Lovell v. Farrington, 50 Maine, 239 ; Stone v. Bartlett, 46 Maine, 438.</p> <p>Gould and Chapman should contribute proportionally, to the cost of redemption. Bailey v. Myrick, 50 Maine, 171.</p> <p>Wallace’s demand, a year before the others had any interest, cannot avail to support this bill, even had it been made at a proper time and place, which it was not, having been made at a store, two miles from the mortgagee’s residence. Brown v. Snell, 46 Maine, 490 ; Róby v. Skinner, 34 Maine, 270 ; Putnam v Putnam, 13 Pick., 129 ; Willard v. Fiske, 2 Pick., 540.</p> <p>Complainants cannot have costs in this case, where the debt exceeds the value of the land held by Alfred W. Stevens. They should be deducted from the debt. Battle v. Griffin, 5 Pick., 167.</p>

On REPORT. Assumpsit, to recover a tax assessed - by the town of Frankfort upon property situated in that part of Winterport which was set off to it from Frankfort, under act of 1867, c. 291; paid under protest to avoid a distraint of property. The grounds upon which the tax was claimed to be illegal are stated in the opinion. The act of division provides that the indebtedness of Frankfort shall be determined, and Mr. Woodman was appointed to determine it.

On report. Debt upon a bond for $316.32, given to obtain a review of a real action originally brought against one Benjamin Brown, now deceased, whose estate Mrs. Berry, the defendant, represents, and in which a judgment was obtained October 26, 1866, against him for $158.16 ; of which $21.24 were the damages or mesne profits, and $136.92 were costs, and twenty-five cents more for a writ of possession.

On report. Beat, action to recover possession of certain premises in Winter-port, conveyed by William Mugridge to Daniel Ward, December 8, 1866, for $1200, and mortgaged back the same day to secure one-half of the purchase money; which mortgage was discharged November 30, 1869.

<p>On REPORT.</p> <p>Action of dower, in which, by agreement, the question of damages only was submitted to tbe jury, the facts upon which a legal issue was made being reported for the action of the court.</p> <p>The verdict was for $55.60, damages for the detention. The only question was as to the sufficiency of the demand of dower. Hotchkiss Brothers & Company, the tenants, reside and do business in New Haven, Connecticut. In January, 1862, they recovered judgment against the firm of W. R. and W. H. Hunt, doing business in Maine, the senior member of which resided in Liberty in tins county, and was the demandant’s husband. An execution for $2679.34-, issued upon this judgment, was levied upon the premises in question then in the possession of W. R. Hunt, and a writ of entry was brought to recover the same of him, by the judgment creditors, in which they prevailed, in 1869. William R. Hunt died June 20, 1872, upon the estate, having paid rent therefor to Joseph Williamson, Esq., who was the attorney of Hotchkiss Brothers & Company in the litigation aforesaid and their agent to take care of the property, and collect tbe rents,— from the date of the levy. After her husband’s death, Mrs. Hunt, his widow, continued to reside in the same place, paying rent to Mr. "Williamson as before, till May 17th, 1873, when he notified her to vacate the premises.</p> <p>The demand of dower was served upon Mr. Williamson a seasonable time before this suit was commenced, the writ in which was also served upon him. The demand was made some time in September, 1872, while Mrs. Hunt was still in occupation of the property, and the writ dated September 4, 1873.</p>

<p>On motions eor a new trial.</p> <p>Assumpsit, to recover for supplies furnished under the pauper act to George and Martha, minor children of Reuben Lyons, whose legal settlement was the only question for the jury, the defendants denying that it was in their town and claiming it to be in Pembroke. Reuben Lyons was born in 1817 in Lubec, where his father and grandfather resided before him. November 27, 1837, Reuben Lyons was married to Martha Leighton who died in December, 1852, having borne him seven children of whom the oldest was named Frances. Within a year after his said marriage he moved from Lnbec to Pembroke, where he remained but a few months, and then moved from one place to another, returning occasionally to reside in Pembroke, Lnbec, and neighboring towns. Upon the twenty fourth day of April, 1853, he was again married, at Lnbec, where he was then living, to Martha A. Case. In the July following they moved to Eastport, where they staid till the next October, when they went to Pembroke. From this time, October 18, 1853, till some time in the last of August, 1859, the defendants claimed, and Mr. Lyons testified, (upon Their motion for a new trial on account of newly discovered evidence,) that his residence was in Pembroke, though it was admitted that he was actually living with his family in Perry, a few rods from the line dividing those towns, from April to September of the year 1854, during which season he worked in Pembroke, and built himself a house upon the land there for which he had bargained, and moved into this house in September, 1854. His second wife bore him six children, of whom the youngest two were Martha and George, to whom the supplies were furnished for which a recovery was sought in this action. Late in the fall of 1854, after his second marriage, his oldest child, Frances, then fourteen years of age, left the house (in Pembroke) and went to her maternal grandfather’s, George Leighton, in Pembroke, where she resided most of the time after that, except that she was for some weeks at her uncle’s, Robinson Leighton’s, in Pembroke. The plaintiffs sought to defeat the alleged settlement of Reuben Lyons in Pembroke, by claiming that the removal to Perry was an interruption of his residence, and was of like character with his other removals; and also by testimony that while his daughter was at her grandfather’s she was sick, and again while at her uncle’s, and that, on each occasion, she was upon the application of those relatives, supplied by the town of Pembroke with medical services and necessaries, the bill for which was subsequently paid by Lnbec. It was also asserted that the whole family was „ twice aided in the absence of Mr. Lyons. There was much conflict upon the fact of assistance being rendered, which was recognized and paid for by Lubec; and it became an important issue whether or not Frances was helped as stated. The jury gave their verdict in favor of the plaintiffs and the defendants moved to set it aside as against the law and the weight of evidence; and subsequently filed another motion for a new trial upon the ground of newly discovered evidence, consisting mainly of the denial by the gentleman who was said, while an overseer of Lubec, to have paid for the aid afforded Frances by Pembroke, and of Frances’ deposition that she never asked for nor received such aid, and of her father that it was not rendered with his knowledge or consent. Upon cross-examination these witnesses all admitted that an overseer from each of these towns did visit Frances while sick at her grandfather’s and uncle’s, and that they did tell Eeuben that application for relief had been made; to which he replied that he would take care of her if she would stay at home, but that he could not afford to board her out. And he made no attempt to take her home.</p>

On report. Assumpsit, by writ dated August 17, 1871, declaring upon a count for money had and received, with a specification of the demand to be proved under it, as $1304.03, received of the State of Maine, as found due from the state to the city of Calais, less $15.58, leaving a balance of $1288.45 and interest thereon from its reception by the defendant due from him to said city.

On report. Assumpsit, upon an account annexed, for money had and received, and special counts to recover $122.54, the amount of twenty interest coupons of six dollars each attached to bonds issued by the defendants under the legislation, votes and acts referred to in the opinion, with the interest upon them after maturity.

<p>Organization of plantation — how effected.</p> <p>The county commissioner, to whom application is made for the organization of a plantation under acts of 1870, c. 121, is alone authorized to fix the place of meeting for that purpose.</p> <p>He cannot delegate this power to the person to whom his warrant is addressed.</p> <p>The officer’s return must show that the notices of the meeting were posted in two conspicuous (as well as public) places.</p>

<p>On exceptions.</p> <p>Indictment, charging that Benner, in the night time of the eighteenth of September, 1873, set fire to and consumed the dwelling house, owned and then occupied by Charles P. Holland, in Pembroke, in said county. The family then being in the house, this was a capital ofíence, under our statutes. The respondent was convicted. Numerous exceptions to the rulings at the trial, and to the charge to the jury, were taken. Fully to understand the first two it is necessary to transcribe a large portion of the direct examination of Henry J. Motz, called as a witness by the government. It must first be premised, however, that the respondent’s wife left him and took refuge at Holland’s, within a week of the fire ; and that, when Benner went after her, Mrs. Holland remonstrated against Mrs. Benner returning with Mr. Benner, who became very much excited and enraged, and so conducted himself that a warrant was issued against him and one of two men who accompanied him and they were tried before Mr. Bailey, a trial justice, on the seventeenth day of September, 1873, and the prisoner’s comrade (Bela Anthony,) was sentenced to pay a fine, but it was paid by Benner, who immediately signed a complaint against Holland for an illegal sale of intoxicating liquors; but after the warrant against Holland had been put into a constable’s hands, and before it was served, Benner came to Mr. Bailey, paid for it and procured its recall, saying : “Perhaps you may want to know why I wish to withdraw the warrant. I wish to punish him more than this.” He inquired what the punishment would be, and on being told a fine of thirty dollars and costs, said, “it will not be enough,” and asked “if he could not punish him more by getting him indicted.” Being told he might, if he could get Holland convicted as a common seller or for keeping a tippling shop, but that it was doubtful if the facts would sustain either of those charges, he exclaimed: “Damn him, I want to punish him more !” The magistrate expostulated with him, telling him that Holland was a simple sort of a man, of no great information, an innocent fellow, and that he had better let it drop; but Benner said : “By God, I will have revenge for what he has done to me.” Finding remonstrance useless, Mr. Bailey said no more, and Mr. Benner (and a man with him whom Bailey did not recognize) left Mr. Bailey’s house, distant two or three miles from Holland’s, at just fifteen minutes before nine o’clock as that gentleman (Bailey) no-cited when he passed through his dining-room after closing the door behind them. Mr. Holland's house was discovered to be on fire between ten and eleven o’clock of that same night. Among the last articles carried out by Mr. Holland was his pendulum clock, which he laid down upon the grass, and it was stopped at five minutes of eleven. The precise moment of Benner’s leaving Mr. Bailey’s was impressed upon that gentleman’s mind when he heard of the fire the next day. Mrs. Holland and a Mrs. Carter who was visiting her at the time of the fire swore to seeing Benner looking into the window of Mr. Holland’s house about ten o’clock, just before they retired. Mrs. Carter first saw him and called Mrs. Holland’s attention to him. Directly after this Mrs. Holland went up stairs to bed and told her husband that Benner was round the house, to which he replied she was always surmising something. Her last act before going up stairs was to wind the clock, and she noticed it was ten o’clock.</p> <p>While Mr. Motz, the witness before mentioned, was under examination by the state attorney he was asked if he was at the trial of Benner before Mr. Bailey on the seventeenth of September, 1873, and if he saw the prisoner there. He replied affirmatively, and that he had a conversation with Benner, because he (witness) always talked with everybody he met. He was then interrogated as to whether or not the conversation was respecting Holland’s wife, and responded that something was said by Benner; that she swore to a lie; should not come upon his premises ; and if she came into his house he would kick her out of doors, “or something like that.” He then testified to meeting the prisoner at a Mr. Anthony’s in the evening after the trial, and to the conversation had there, in which Benner told about his going to Holland’s after his (Benner’s) wife and child, and having borrowed a revolver of Jim Eobinson to carry with him there. The following colloquy then ensued:</p> <p>Q. “Bo you remember anything that he said about Mr. Holland, there at Anthony’s?” Ans. “Yes. He said he thought Charles Holland told the truth as near as he (Benner) could tell it himself. He said he found no fault with him, and he never paid any money with so good a heart as he paid that fine.”</p> <p>Q. “What did he say about. Mrs. Holland ?” Ans. “I don’t remember what he did say ; but he did not like her so well as he did Charley, I can tell you that.”</p> <p>Q. “Bid he make any threats against the Hollands ?” Ans. “He made none against Charley Holland. He said Mrs. Holland should not come into his house.”</p> <p>Q. “Bid he say anything about their buildings at Anthony’s ?” Ans. “I don’t think he did say anything about his buildings.”</p> <p>Q. “Bon’t you remember anything he said about Mrs. Holland at that place?” Ans. “I don’t remember the words, but he didn’t like her very well. It has been so long I can’t remember the words.”</p> <p>Q. “Tell it as near as you can, Mr. Motz.” Ans. “About as much as I heard him say was that she swore to a lie, and she should not come to his house again ; if she did, he would kick her out.”</p> <p>Q. “Bid he say anything about burning ?” Ans. “Well”— [Objection interposed by Mr. McNiehol, who said to the court: “Does your honor admit that ?” and the judge replied: “Yes, to this witness. He is an unwilling witness.”] The question was then repeated, in the same words. Ans. “Well, my memory is so poor I don’t want to say anything about it. We talked there a good deal, one way and another. I don’t know”—</p> <p>Q. “What did he say, if anything, about burning ? Give the substance.” Ans. “I think he did not say nothing about burning the house.”</p> <p>Q. “Well, about burning Mrs. Holland then ?” [Objection interposed.] Ans. “I don’t think he said anything about that.”</p> <p>Q. “Did he say anything about burning anything connected with the Hollands?” Ans. “Well, not really; I don’t think he did. He kind o’laughed and said, ‘Bela, if they did take $15 out of us, we will live on roast beef the rest of the winter;’ or something like that.”</p> <p>Q. “Can you recollect anything that was said about burning ?” Ans. “I don’t think I can. I don’t seem to recollect.”</p> <p>Q. “Was nothing said about burning there by him that night?” [Objected to.] Ans. “I don’t know but he might have said it was no matter if the damned old coop was burned up, but I did not hear him say that he would burn it up. I guess that was about all that was said.”</p> <p>Q. [By the court.] “Do you know that he did say that about the old coop ?” Ans. “Well, I should say that he did. I guess he did.”</p> <p>Q. “Now, what else did he say about the coop, or burning Mrs. Holland ?” Ans. “I did not hear him say anything about burning Mrs. Holland.”</p> <p>Q. “Did he say, ‘damn her, he wished she was burned up ?’ ” Ans. “Well, it was said there, but I don’t remember of him saying it. There was something of that kind said there. That comes pretty nigh to it. The prisoner did not say it. The prisoner was present.”</p> <p>Q. “Did he say it would be better for her, or the world, if she was burned up ?” Ans. “No, sir.”</p> <p>Q. “Did he say what he would do if hig wife went there again ?” Ans. “He said she should not go there. I don’t know as I can tell you what was said. There was a good deal said.”</p> <p>Q: “I am only asking what he said upon that point?” Ans. “He said she should not go there again.”</p> <p>Q. “Did he say what he would do, if she did ?” [Objection made.] Ans. “I want to think — I have nothing against anybody. I think there was something said about burning the damned old coop up, but I don’t know who said it. I don’t think I heard him say so.”</p> <p>Q. “Did he say, ‘Susie, if you go there again, I will burn the damned old coop up ?’ ” [Objection noted.] Ans. “Well, I think he did.”</p> <p>The direct examination was pursued till it was drawn out that the witness went straight from the trial at Bailey’s to Eben Anthony’s, where Bela Anthony and his wife lived, and was there two hours, during which the talk he heard was had; and that the next morning he went half a 'mile, to the place where he supposed Holland would be at work, and failing to find him went again in the evening and staid till nine o’clock, but he did not come. The following questions were then put to the witness :</p> <p>Q. “What did you go to see him for ?” Ans. “I wanted to have a little talk with him.”</p> <p>Q. “Eor what purpose ?” [Objected to and excluded, unless connected with the case.]</p> <p>Q. “Did you go to see Charles Holland in consequence of what you heard Benner say the night before at Eben Anthony’s ?” Ans. “Yes, I did.”</p> <p>Q. “Did you go to see him in consequence of what you heard the prisoner say about burning ?” [Objected.] Ans. “No, sir, I did not hear him say anything but — Did you want me to tell you what I went for ? I went up the next morning, and he was not there ; and I went the next night, the night the house was burned, to tell him that if I was him, I would get my hay and barn insured.”</p> <p>Q. “And was that what you went in the morning for V’ A.ns. “ Yes ; and I went at night for that purpose.”</p> <p>To the overruling of their objections to the foregoing interrogatories the respondent’s counsel excepted.</p> <p>From the testimony of John H. Benner, brother to the defendant, and summoned by him, it appeared that it was he who called with the respondent at Mr. Bailey’s upon the night of the fire; and he swore that he took Oris, (the defendant) to Pembroke and carried him nearly home; and that, from his statement, they must have been several miles distant when the fire was set, and that they did not pass Holland’s house that night, reforming home (as they came) by a shorter road. In the course of his testimony he volunteered a remark as to what it was before the grand jury; and at a later stage of the trial, Charles Cary, foreman of the grand jury which found the indictment, was called to prove that John H. Benner and Bela Anthony made statements before the grand jury very materially different from, and entirely irreconcilable with, those made when testifying for the defence upon the trial. To the admission of the testimony of Mr. Cary, as to what transpired before the grand jury, the defendant’s counsel strenuously objected, but it was received.</p> <p>It came out in evidence that a civil action had been commenced by Charles P. Holland against Amos 0. Benner, to recover the value of the property destroyed by this fire. On cross-examination, Holland was asked if he did not tell Mr. Lincoln that he did not direct these proceedings, and that he was going down to stop them. His reply was that he did not say so ; and the defendant while putting in his testimony on his part, called Mr. Lincoln, and proposed to showr by him that Holland did say this to Lincoln; but the court excluded it; saying to counsel that the inquiry was collateral, and the answer obtained binding.</p> <p>Emilus W. Carter, a neighbor of Holland’s, called in defence, testified to being at the fire till the house burned down. He was asked if anything was said there that night about seeing Benner there; but the state attorney objecting, he was not permitted to answer. He was then asked if he heard anything said about seeing anybody there ; and no objection being interposed, replied that he did not. The defence excepted to the exclusion of the former question.</p> <p>Jacob R. Sinclair, called in rebuttal by the government, testified to fishing at a designated bridge on the night of September 18, 1873, with other persons, so that he could have seen Benner had he passed that way, as claimed by him and his brother John. One of the two persons who were with Mr. Sinclair testified to seeing and talking with Benner upon that bridge about ten o’clock that night, but Mr. Sinclair and his other comrade denied it. The defence, to show Sinclair might have been mistaken as to the night, asked him if he did not go to his home, some distance oif, after the mill in which he worked was closed in August, and he said that he went home on Saturdays and returned to work in the mill on Monday. The question was then put: “Didn’t you come back and go into that mill Tuesday ?” Ans. “If they sent word for me to come I did.”</p> <p>Q. “You didn’t come till they sent for you?” Ans. “If I was fishing” — Here the court interposed with the remark that it was no matter where he was at any other time if he was there on the night of the eighteenth of September; to which exclusion and remark the defendant excepted.</p> <p>Exceptions were also taken to the following passages of the charge to the jury: “Now, gentlemen, it is contended here that if the prisoner is convicted he goes to the gallows. Well, it is only one step in that direction, and that step may be retraced. It does not follow that he will be hung if your verdict should be against him, therefore your responsibility is not so great as contended. Other tribunals have responsibilities. The court, yourselves, and the chief executive of the state, all share the responsibilities ; because if your verdict should be guilty, this may come before the court, and the whole of the evidence be reviewed, and if they are satisfied your verdict is wrong they will set it aside. But if not so satisfied, then the sentence prescribed by law is pronounced, and that is that he shall be hung. But the responsibility does not stop there. The whole of the evidence, according to the law of Maine, has to be reported to the governor and council. Every particle of the evidence must be reported and examined, and if the governor is satisfied that the verdict is not right, or not clearly right, he is authorized — and the statute says after the person has been imprisoned for one year — that he shall,; after revising the evidence, then either pardon, or commute, or execute the sentence. One of these three things it is his imperative duty to do. He may pardon, if he thinks the testimony not sufficient to warrant a verdict; or may commute to imprisonment for life; or issue his warrant for execution, as prescribed for this offence. Now, gentlemen, we know, notwithstanding that imperative declaration of the statute, that statute has been disregarded for a sei’ies of years. Why it has been so, it is not for me to say. There are a number of individuals in the state prison, who have been there for years, under the sentence of death, and there has been no pardon, no commutation, and no execution. . .</p> <p>. . Sd, gentlemen, you see you are only one of the co-ordinate tribunals, sitting in the administration of justice. Now, gentlemen, these remarks are. general, and have no particular application to this case, only to show that your jurisdiction is in aid of the other tribunals of the state, and that if you make a mistake it can be remedied; and that the individual, if convicted, does not go directly to the gallows ; it is a step in that direction which may be retraced.”........•........................................ “It seems that on the evening of the eighteenth of September last he (the prisoner) was seen at Mr. Bailey’s, the magistrate’s, and you recollect the circumstances why he was there. Now, at the time he started from that place, Mr. Bailey says it was fifteen minutes before nine in the evening. Where did he go ? Hid he take the route passing by Holland’s and fire the house, and then go in a direct course home, or did he take another route ? Now, the theory of the government is, and they have introduced testimony tending to show it, that he took the route passing by Hoiland’s house, fired the building, and arrived home after the building was in flames. On the other hand, it is contended in the defence, that he took another route, which did not pass that house, and was seen at various places, at particular times, and arrived home about ten o’clock, before the house was seen to be on fire. There is the question ; and after all, it depends principally upon the question of time. If he arrived home at ten o’clock, and before this house was consumed, or in flames, of course it is not contended that he can be the guilty party. On the other hand, if he has falsified, and it follows from the testimony that he arrived home long after the house was consumed, it is a circumstance and strong evidence of his guilt, because it is a fact that if a man undertakes to prove that*he was in a different place, and the testimony shows to the contrary, it is a circumstance, though not conclusive of his guilt. Then, gentlemen, consider the testimony in relation to those two theories, that on the part of the government and on the part of the defence. Look at all of the testimony, and scrutinize it carefully. It is conflicting. Witnesses upon the stand make certain statements, and other witnesses are called to* swear that they made other statements at other times, which goes to discredit their statements. The prisoner and his brother John are introduced. If the prisoner is guilty, you must come to the conclusion that his brother John was a confederate. You see, therefore, how they are situated, and the motive to falsify, if he is guilty. The prisoner is a competent witness, made so by the law; still, the force and effect of his testimony is wholly for your consideration. You may disregard it entirely, or you may give it full weight. It is altogether a subject for your own consideration.</p> <p>Then, gentlemen, there is another question, and that is whether the fire was accidental. If it was an accident, why then the prisoner could not have set it......Then, it is contended that there were two individuals who saw Renner there before the fire on this evening, and you have heard the testimony and the arguments in relation to that. If you believe that he was there, then perhaps you would not hesitate to believe that he was the perpetrator of this crime. Then, it is said that he made threats to burn the building. When he was at Bailey’s, he swore, by God, that he would have revenge, on the same night that the building was burned, and it is contended that he carried the threat into execution. You have hoard the testimony and the arguments, and judge you whether that threat was executed or not. The defence then introduced the prisoner’s good character. You have heard that, and there was no controversy about it,” &c., &e.......</p> <p>The counsel argued in support of their exceptions to the leading questions asked Mote by the state attorney, and the inquiry as to the purpose for which that witness tried to find Holland; to the introduction of Cary’s testimony as t’o what was stated before the grand jury, citing 1 Greenl. on Ev., § 252; Boscoe’s Grim. Ev., 150; 2 Starkie on Ev., 232; Bishop’s Crim. Proc., § 738; McLellan v. Richardson, 13 Maine, 82, and State v. Knight, 43 Maine, 11 and 128; to the exclusion of Lincoln’s statement of what Holland told him about seeing Benner, and of Hobart and Gardner’s testimony as to what Holland said about suspecting anybody of being the incendiary — (which the judge excluded with the remark, “That is not material”); — and of Carter’s statement whether or not anything was said at Holland’s at or after the fire (on that night) about seeing Benner there; to the exclusion of and comment upon question proposed to Sinclair ; to so much of the charge as tended to diminish the juror’s sense of responsibility; to the reference to the statement of the time, as fixed by Bailey; to the assumption by the court that the government had a theory which the testimony tended to prove; to the statement that, after all, it wras principally a question of time; (as it was claimed these last two matters were questions of fact to be submitted to the jury without comment, under the act of 1874, c. 212); to the instruction as to the effect of its being satisfactorily proved that Benner lied about his whereabouts and the time of his arrival home; to that saying that if the prisoner was guilty, his brother John must have been his confederate, &c.; to that stating that a belief that Benner was seen at Holland’s that night. might lead to a conclusion of his guilt; and to the assumption, as an undisputed fact, that the prisoner did say at Bailey’s that by God, he would have revenge, &c.</p> <p>The attorney general argued ably and elaborately in support of the rulings and instructions of the court; citing in support of his method of examining the government witness, Motz ; 1 Starkie on Ev., 132; 1 Philips on Ev., 205; 2 Graham & Waterman on New Trials, 694; Stratford v. Sanford, 9 Conn., 275.</p> <p>As to the right to introduce Cary’s testimony as to the evidence before the grand jury he cited; Commonwealth v. Rill, 11 Cush., 137; Commonwealth v. Mead, 12 Gray, 167, and eases there cited ; Burnham v. Hatfield, 5 Blackf., (Ind.,) 21; State v. Broughton, 7 Iredell, (No. Car.,) 96; Sands v. Bobinson, 12 Smedes & Marshall, (Miss.,) 704; Low’s case, 4 Maine, 440; 1 Bishop’s Grim. Proe., § 859, 729; 1 Archbold’s Grim. Brae. & Plead., 488, and note.</p> <p>To the propriety of the exclusion of testimony to contradict upon collateral matters, elicited by cross-examination; Ware v. Ware, 8 Maine, 42; Page v. Homans, 14 Maine, 478; People v. McGinnis, 1 Parker’s Grim. Rep. 387; Seavey v. Washburn, 19 N. H., 351; State v. Theban, 30 Vt., 100.</p> <p>The respondent was not injured by the exclusion of the question put to Carter about Benner being seen at Holland’s upon the night of the fire, since it was embraced in the next question asked and answered without objection. Fogg v. Babcock, 41 Maine, 347; Pope v. Machias Water Power Co., 52 Maine, 535.</p> <p>The remarks of the judge in his charge, as to the divided responsibility of the jury were of same purport as those of Judge Bigelow, in the Hersey trial, and of Judge Walton in the Lowell case, and no stronger in expression.</p>

.On report. Trespass quare clausum,, commenced by writ dated December 16, 1854, for breaking and entering the plaintiff’s close in Bailey-ville, in said county, “being an island in the St. Croix river call-' ed and known as Grass Island, part of lot number fourteen in Paileyville, according to the survey of B. R. Jones,” and cutting and carrying off the grass, &c. The trespass was alleged to have been committed on the sixteenth day of December, 1848, and on divers days…

On exceptions and motion eor a new trial. Trespass de bonis against the sheriff of Kennebec county for tbe tort of bis deputy in attaching and selling as tbe property of Orrin Emerson, senior, a stock of fancy goods, claimed to belong to the plaintiff in bis capacity as executor of tbe will of his deceased mother, Louisa Emerson.

<p> Physician’s duty to patient. Burden of proof. </p> <p>Though the language used and the effect of it are questions of fact for the' jury, in controversies relating to a contract by parol, yet it is also true that in many cases the law will infer a definite, though perhaps implied contract from certain admitted facts. At least it will infer certain elements as belonging to particular contracts, or impose specific duties in connection with, and growing out of special undertakings, although these are entered into by parol.</p> <p>Especially is this true of contracts growing out of an employment.giiasi public in its nature, like that of a professional man.</p> <p>Thus, the care and skill which a professional man guarantees to his employer are elements of the contract into which he enters by accepting a proffered engagement. So, continued attention to the undertaking, so long as attention is required, in the absence of any stipulation to the contrary, is equally an inference of the law.</p> <p>While it is competent for a physician and his x>atient to enter into such a contract as they think fit, limiting the attendance to a longer or shorter period, or to a single visit, if they please; and while, if there be no such limitation, the physician can discontinue his attendance at his election, after giving reasonable notice of his intention to do so; yet, if he be sent for at the time of an injury by one whose family physician he has been for years, the effect of his responding to the call will be an engagement to 'attend to the case, so long as it requires attention, unless he gives notice to the contrary, or is discharged by the patient; and he is bound to use ordinary care and skill, not'only in his attendance but in determining when it may be safely and properly discontinued.</p> <p>If a surgeon, called to attend one who has long been his employer, leaves his patient before he has been properly cared for professionally, or while he needs further attention, and relies upon an alleged discharge by the patient as a defence to a suit brought for the abandonment; this being a new substantive matter of defence, the burden of proving it is upon the defendant.</p>

On exceptions. Replevin of a wagon. The defendant pleaded the general issue with a brief statement, denying the plaintiff’s title, possession, or right of possession, at the time the writ was brought, June 3, 1872, and alleging the same then to be in Jason M. Carleton. It seemed by the plaintiff’s testimony that he once owned the new wagon this writ was brought to recover, and in May, 1872, swapped it with Weston Cunningham for another wagon and fifty dollars in money.

<p>Defence by subsequent plaintiff, under ft. S., c• 82, § 39.</p> <p>Leave will not be granted under e. 82, § 39, to a plaintiff in a subsequent suit to defend a prior suit, the same property being attached in both, unless both suits are pending.</p> <p>The statute does not apply to a subsequently attaching creditor, who has obtained a judgment, which has been satisfied.</p>

On report. Trespass, for breaking and entering the plaintiff’s close in Waterville, being their town poor farm, and taking and carrying away certain animals. The third count was de bonis, for taking and carrying off the beasts.

<p>On exceptions.</p> <p>Real action to determine the title to certain land in China. It was formerly owned by Samuel II. Worthing who died in 1869, leaving a widow, Sally Worthing, aud one son, Ensign L. Worthing, the demandant. To maintain his action the demandant introduced a deed of the premises in question to him from his father, dated November 21, 1821. The tenant put in a deed from his brother, the late Samuel H. Worthing, to him, of the same property, dated October 23, 1838. Each of these deeds was recorded upon the day of its respective date. The tenant also introduced, subject to the demandant’s objection, a deed of the same land from said Samuel H. Worthing to Hillman Worthing, (another brother) dated December 24, 1839, and recorded March 24,1840, in which Sally Worthing joined to bar her dower. The demandant was but six years old when the deed to him was made. The tenant denied that the deed was ever delivered and the demandant claimed to have proved by his mother, Sally Worthing, that Samuel H. Worthing delivered it to her for him. . Several exceptions were taken during the trial and to the charge, but tlie opinion of tbe court indicates those upon which the verdict, which was for the tenant, is set aside.</p> <p>The deed to Hillman Worthing, made twelve years after that to Ensign, and nine years after the delivery of the latter to his mother for him, was improperly admitted, because it was simply a subsequent declaration of the grantor. Baker v. Haskell, 4t1 N. H., 479; Bartlett v. Delprat, 4 Mass., 702; Aldrich v. Earle, 13 Gray, 578; Gates v. Mowry, 15 Gray, 564; Taylor v. Robinson, 2 Allen, 562; Lynde v. McGregor, 13 Allen, 175; Rivard v. Walker, 39 111., 413; 1 Greenl. on Ev., § 180 and cases there cited. The reason is that the later acts or declarations are no evidence of the intention that existed when the deed was delivered.</p> <p>The deed was admitted generally, and not for any special purpose, as plainly appears from the language of the charge.</p> <p>The deed to Hillman Worthing was one of warranty signed by Sally Worthing with her husband, and was admissible to contradict her. Being properly admitted, the demandant should have asked specifically to have its effect limited, had he desired this. He did not do so, nor does he base his exceptions upon the failure thus to limit it.</p>

On report. Assumpsit. The declaration contained a special count as follows : “In a plea of the case for that the plaintiff, on the fourteenth day of June, A. D. 1867, was the master and had the sole possession, management and control of the schooner Mabel Hall, of 240 tons capacity, and on said day the defendants, in consideration that the plaintiff, at the special request of the defendants, undertook and promised to carry in said schooner from Yinalhaven, in Maine, to the…

On report. Assumpsit for damages for the detention of the scliooner Leonessa, in the nature of demurrage. The declaration, bill of lading and voyage in this case, were the same as in the preceding one of Hail v. Barker, names and dates only being changed. Both suits were commenced ’May 17, 1873, and the general issue was pleaded in defence to them.

On report. The defendant was administrator of the estate of the late Stephen Ladd, against which the plaintiff' had a claim for labor, which was submitted to referees, who awarded her five hundred and / twenty-five dollars. December 9, 1871, the defendant paid her four hundred dollars in money and gave her his note for one hundied and twenty-five dollars payable to her on demand with interest. It was not negotiable in form.

<p>On report.</p> <p>This was a second hearing upon the appeal taken by Susan Pettingill, widow and devisee of the late Benjamin Pettingill, from the decree of the judge of probate of Kennebec county, allowing the account of Howard Pettingill, as executor of the will of his father, also named Howard Pettingill, deceased March 28, 1840. The reasons for the appeal, and the relations of the parties can be ascertained by reference to the report of the case Pettingill, appellant, v. Pettingill, 60 Maine, 411. By the terms of the will of which the appellee is executor the five children of the decedent by his wife, Amy Pettingill, were required to and did give bond for the support of their mother during her life, the expense to be borne equally according to the condition of the bond, though not precisely so expressed in the will, by the terms of which the lands devised to the testator’s children were charged with the performanee of the stipulations of the bond, which was not in fact executed till two months after the death of the father. See 60 Maine, 411, and Pettingill v. Patterson, executor, 32 Maine, 569.</p> <p>The executor’s account as originally filed, was “for the maintenance of Amy Pettingill, widow of Howard Pettingill, deceased,”</p> <p>viz :—</p> <p>Prom March 28, 1840, to March 28, 1861, at $110. per year, $2,310</p> <p>To interest on twenty instalments, 2,706</p> <p>To continuing maintenance from March 28, 1861, to March 28, 1871, at $220 per year, 2,200</p> <p>To interest on nine instalments, 594</p> <p>$7,810</p> <p>Less one-fifth, [the executor’s one proportion, he being a son,] 1,562</p> <p>Balance, $6,248</p> <p>The judge of probate allowed this account, exclusive of interest, as is stated in 60 Maine, 414; but the supreme court of probate directed its allowance for the six years next preceding the filing of the account, and that credit should be given the several devisees for the sums paid by each for the mother’s maintenance and for such sum (if any) as she earned by her labor in the accountant’s family. 60 Maine, 424 and 425.</p> <p>To ascertain these items, the cause was sent by the judge at nisi jorius to an auditor, (Hon. James W. Bradbury,) who made this report at the March term, 1875:</p> <p>“After a protracted hearing of the parties, their evidence and the arguments of their counsel, and a careful consideration of the same. I have come to the following conclusion, viz:—</p> <p>That for a period of six years from November 20, 1852, to November 20,1858, a fair and just compensation for the support and maintenance of Mrs.. Amy Pettingill, according to the bond, was $110 per year, making for the six years, $660.00</p> <p>And for the period of six years from November 20,1858, to November 20, 1864, $3.50 per week, or $182 per year making for the six years, 1,092.00</p> <p>And for the period from November 20, 1864, to March 28, 1871, $6.50 per week, or $338 per year, making for the period of six years, eighteen weeks, 2,145.00</p> <p>$3,897.00</p> <p>To which amount I add interest upon the six annual instalments next before filing the account, 30400</p> <p>$4,201.00</p> <p>Interest from the filing the account March 28, 1871, to March 28, 1875, is added, 1,008.00</p> <p>Making, $5,209.00</p> <p>Of this one-fifth is to be borne by the executor, 1,041.80</p> <p>$4,168.20</p> <p>And said Howard Pettingill is not in my judgment entitled upon the evidence to recover anything on this account for the maintenance of his mother prior to November 20, 1852. At that time, in a settlement of certain matters made between him and Benjamin, it was the understanding of both that all past liability of every kind from Benjamin to Howard was cancelled.</p> <p>All the other parties liable for the support of the old lady having settled, I find that said Howard is not entitled to recover anything in this account for charges prior to November 20, 1852.</p> <p>Mrs. Mary A. Kent, an obligor in the bond, testified to her care of the mother and attendance upon her since the fall of 1864; and that she has in addition, paid Howard $1200 on account of her liability to bear her fifth part of the expense incurred under the bond. This, in my judgment, is sufficient and more than sufficient to discharge her appropriate share of the liability.</p> <p>But I have not felt at liberty to deduct the excess so as to reduce the amount due from Benjamin. All the other obligors have respectively discharged their share of the obligation under the bond, either by settlement or adequate service.</p> <p>The services of the mother were of value to Howard prior to his marriage in the fall of 1848. Since her illness in 1858, her kindly efforts at labor have been of no substantial value.</p> <p>I find, in conclusion, that there is due to Howard Pettingill from the estate of said Benjamin chargeable upon the land decreed to him by his father, including interest upon the last annual instalments up to March 28, 1875, the sum of ($1,041.80) ten hundred forty-one dollars eighty cents.</p> <p>Exception was taken by the counsel for the appellant to my allowance of a larger amount per annum for the maintenance of the mother than that charged in the original account filed in the probate office, and by the counsel of the appellee to my allowance of any payment to Howard in the transactions of November 20,1852, as not being embraced in the ‘reasons of appeal.’</p> <p>J. W. Bradbury.”</p> <p>The said Susan Pettingill, appellant, filed the following objections to the acceptance of the foregoing report of the commissioner in this case.</p> <p>I. The executor claimed but two hundred and twenty dollars per year and interest thereon as appears in report of the case, from March 28,1861, to March 28,1871, in his account filed in the probate court, but the commissioner in his report allows him from November 20, 1864, to March 28, 1871, $6.50 per week, or $338 per year, and interest upon the last six instalments. His allowance of more than that claimed by the executor in his account and interest upon the same was unauthorized.</p> <p>II. The commissioner finds that Mrs. Mary A. Kent, one of the obligors in the bond, paid more than her one-fifth for the support of Amy Pettingill to Howard Pettingill, the executor, but does not deduct the amount so overpaid from the executor’s claim, but allows his claim for the same amount as if he had not received such over payment. The amount so over-paid by Mary A. Kent should have been deducted from the executor’s claim.</p> <p>The facts set forth in the report of this case in the sixtieth volume of Maine reports, page 411, were made a part of the case.</p> <p>The presiding judge, pro forma, accepted the report and awarded costs to the appellee, to which acceptance and award of costs the appellant excepted.</p> <p>The commissioner- allows $72 a year from November 20, 1858, to November 20, 1864, six years, — $432—more than was charged in the executor’s account originally filed in the ease. 60 Maine, 414.</p> <p>Also $118 a year from November 20,1864, to March 28,1871, six years and eighteen weeks, more than was charged in the account; amounting to about $750, and interest upon this over-allowance for six years to the time of filing the account, March 28, 1871, equals $270. These over-allowances and interest on the same to March 28,1871, equals $1450. Then he allows interest upon this over-allowance from the time of filing the account March 28, 1871, to March 28, 1875, four years, being about $350 more, making in all an over-allowance of about $1800, one-fifth of this is $360, allowed against the widow of Benjamin Pettingill more than charged in the executor’s account.</p> <p>It may be claimed that the amount allowed does not exceed the amount charged including interest, but the greater part of the over-allowance is upon that part of the account on which interest is allowed. The charge in the account is $220 per year with interest, and the allowance is $338 per year with interest.</p> <p>If it is claimed that this extra allowance may stand because the whole amount allowed on all the items does not exceed the whole amount charged in all the items, including interest, the answer is that the court has expressly found that interest shall be allowed only on the last six instalments. 60 Maine, 425.</p> <p>What propriety in cutting off the interest prior to the six years if the other items are to be increased to offset the interest cut off?</p> <p>Can $338 and interest be allowed on a charge of $220 a year and interest ?</p> <p>Suppose this question of fact as to the worth of supporting the old lady had been submitted to a jury, ,as it might have been under B. S., c. 63, § 26, could the jury in that case, render a verdict for more than was charged in the account as first filed? No more than they could upon an account in a writ.</p> <p>The amount overpaid by Mary A. Hunt, to*the executor should have been deducted from his claim against the estate for supporting the old lady. The over-payment by Mrs. Kent may be and is in fact barred from being recovered back by her and in so far as she has over-paid Howard will be twice paid if he can recover it again in this manner.</p> <p>Suppose the other three obligors had supported their mother entirely. Could the executor compel Benjamin’s estate to pay one-fifth of it to him? If one has contributed mqre than her share is it to be paid to Howard again ?</p> <p>The court say in this case, the acountant should charge himself with all that either of the legatees has paid, as well as his own fifth. 60 Maine, 424. This report only charges him with a part of what Mrs. Kent paid and leaves him to be paid twice.</p> <p>If the account as originally filed was based on a judgment in the case of Pettingill v. Patterson, 32 Maine, 569, as claimed by appellee’s attorney, it is an additional reason why it should not be increased.</p> <p>In the original bill filed in the probate court, Howard Pettingill as executor, claimed to be allowed what the judgment in Pet tin-gill v. Patterson, 32 Maine, 569, would give him, and made his bill for the first twenty years, upon the basis of that judgment; then for the next ten years, the yearly sum was doubled, to meet the increased cost of living, but interest was claimed and reckoned on the yearly instalments, in accordance with the judgment in that case, and just as much claimed as the yearly instalments themselves.</p> <p>See the bill in 60 Maine, 414.</p> <p>One-fiftli part of it is $1,502.00</p> <p>Interest from March 28, 1871, to March 28, 1875, 374.88</p> <p>Amounting March 28, 1875, to $1,936.88</p> <p>But the court in their decision in this case, reported in 60 Maine,. 411, not having adopted the judgment in the case first cited as the method of making up the executor’s account, and having decided, that he was “to be allowed the cost of maintenance,” at the hear^ ing before Mr. Bradbury, the executor was called upon by Mr. Bradbury, to make up his account according to the above directions, and he made it up as follows:</p> <p>Prom March 28,1840, to March 28,1848, 416 weeks at $3 per week, $1,248.00</p> <p>Prom March 28,1848, to March 28, 1857, 468 weeks at $5 per week, 2,340.00</p> <p>Prom March 28, 1857, to March 28, 1871, 728 weeks at $8 per week, 5,824.00</p> <p>Interest on six last annual instalments, 519,30</p> <p>Amounting to $9,931.30</p> <p>One-fifth of which, being Benjamin’s part is $1,986.20</p> <p>It is true that Mr. Bradbury divided the whole time into periods as the case seemed to require, and allowed according to the circumstances of each particular period, up to 1848 allowing nothing, and without saying what he allowed from 1848 to November 20,. 1852, considering everything up to that time, embraced in a private settlement, then made, between Howard and Benjamin, after that allowing according to the circumstances of the ease, amounting in the aggregate to the said sum of $1,041.80.</p> <p>Now the executor says that the appellant is not aggrieved at this, but that he is the aggrieved party, because Mr. Bradbury allowed the appellant to go outside of the reasons of appeal, and offer proof of claims never thought of while Benjamin lived, nor at the time the reasons of appeal were made and filed. This the executor considers entirely illegal, and that whatever was allowed by Mr. Bradbury for the use of the place and for twelve acres of land, was wholly outside of the case and unauthorized, but having consented that Mr. Bradbury might make up the account he proposes to abide by Mr. Bradbury’s decision.</p> <p>Upon the whole the case stands thus, Mr. Bradbury has apportioned the sum he allowed, to the different periods, in a manner different from what the executor claimed, in some allowing nothing, in others more, but not so much as was charged on the bill used at the trial, nor in the aggregate, so much as the original account, by some eight or nine hundred dollars.</p>

On exceptions. Case, to recover for damage done by tbe defendants to the plaintiff’s mills. The plaintiff had his mills, known as the Hoe and Pork Factories, upon a little stream, known as Purgatory stream, running from Purgatory pond and emptying into the Cobbosseecontee. The defendants had mills and a dam upon the Cobbosseecontee, at Gardiner, fourteen miles from those of the plaintiff.

On exceptions. Mr. Quinn claimed that his land had been overflowed and damaged by means of a dam erected by Mr. Besse upon his own land. They agreed to refer the claim to three persons, agreeably to R. S., c. 108, and a submission in the form there indicated was entered into, signed and acknowledged by the parties, October 6, 1873.

On exceptions. Indictment charging that Albert E. Clary, Ford B. Curtis and George Elwell unlawfully conspired among themselves, at Gardiner, «fee., with the fraudulent intent, &c., “by divers false pretences and subtle means and devices to obtain and acquire to themselves a certain horse, the property of one Erastus Littlefield, which the said Littlefield, by his agent, one George E. Spaulding, had previously received from the said Clary in exchange for a certain black…

<p>On exceptions.</p> <p>Complaint in bastardy made June 15, 1872, before one E. G. Webber, a trial justice of Knox county, wlio issued his warrant upon which the respondent was brought before Charles E. Blake, Esq., another trial justice of the county, who required him to give bond for his appearance at the next term of this court. At the trial copies of the complaint and warrant, certified by Mr. Blake, were permitted to be used as pleadings and as proof that the complainant had made the requisite accusation, &c., although the respondent objected to their use. The complainant testified that she signed such an accusation.</p> <p>The complainant’s mother, summoned by her, testified that the complainant told her who was the 'father of the child in May, 1872. The same witness was asked : “since the making of her accusation in writing, whom has she accused of being the father of the child ?” and was allowed to answer: “Moses R. Bucklin.” This witness then stated that her daughter had always accused the defendant of being the father of the child ever since that time, whenever she conversed with her on the subject.</p> <p>Complainant’s counsel argued to the jury that this was evidence of her truthfulness, as well as of her constancy.</p> <p>The defendant offered to prove that the complainant had the general reputation of being a prostitute for the past three years, but the judge excluded it.</p> <p>To these rulings, admitting the papers and testimony and excluding that offered by him, the respondent excepted, the verdict being against him.</p>

On exceptions. Writ of entry, originally commenced by Joseph Tolman upon a mortgage conditioned for his support by the respondents, as is stated in the opinion. This action was instituted June 20, 1867, upon said mortgage, dated March 28, 1866, given to secure the performance of an obligation of even date for the mortgagee’s comfortable maintenance.

On report. Case, brought under the provisions of R. S., c. 48, by the plaintiffs as creditors of the Rockland Shoe Company against the defendant as one of its stockholders. Held: having paid for it in full, and no part of said capital stock so paid in has ever been withdrawn, and he has ever since its commencement been, and still is the holder of said share.

On exceptions. Assumpsit, originally brought November 23, 1874, by Israel Snow, Joseph L. Farwell and Israel L. Snow, copartners. The senior member of the firm died and at the next term (March, 1875) his death was suggested on the docket, and the defendant moved that the plaintiffs be required to elect by the middle of the ensuing vacation whether they would prosecute as survivors, or summon in the administrator of the deceased partner to join with them.

On exceptions. Indictment, presenting that the respondent, upon the sixth day of July, 1874, entered into a recognizance before Hiram Bass, a trial justice of Knox county, for his appearance at the then next ensuing term of this court, to answer to a complaint charging him with the offence of being a common seller of intoxicating liquors; that one William H. Trim was, at the same time, recognized to appear as a witness in that case for the state; “and the jurors aforesaid,…

<p>On exceptions and motion for a new trial.</p> <p>Assumpsit, commenced the twenty-fifth day of October, 1862. A nonsuit had been ordered in this case at its first trial, in 1866, which the full court decidéd to be improper; and that if his evidence was not rebutted, the plaintiff could recover upon the facts proved by him. Foye v. Southard, 51 Maine, 117.</p> <p>The declaration contained two' counts. The first was upon an account annexed “for 9759 lbs. of hay taken from Whaleship wharf in Wiscasset and carried to Boston and sold for twenty-three dollars a ton, $112.22,</p> <p>and for interest thereon 17.73</p> <p>$129.95”</p> <p>with a credit of $9.75 for freight.</p> <p>» The bill was dated May 22, 1860, when the transaction took place.</p> <p>The second count was for money had and received, with this specification: “For balance of money and interest thereon received for the hay sold in Boston.”</p> <p>In May, 1860, this hay was baled but not branded, and, in that condition, was in the plaintiff’s barn, when the defendant, — who then had command of the coasting schooner Coquette, lying at Whaleship wharf in Wiscasset, and who desired to purchase enough pressed hay to finish out a deck-load for his vessel,— went up to see it. Terms of purchase were agreed upon, $17 for the superior and $11 for the inferior quality. The hay was to be delivered along side of the schooner. Several loads were hauled to the wharf, with the first four or five of which no fault was found; but with some of the later loads Captain Southard was dissatisfied, saying it was not such as he purchased and he would not take it. Mr. Foye told him he must take the whole lot or none. Finally, a Mr. Greenleaf, who was called to examine the hay, and pass upon its quality, declared it to be a good average lot, and that he would take it if Southard would not. Thereupon Foye said he sold the whole lot, including that already on board the Coquette, to Greenleaf. The defendant’s version of this part of the transaction, and the conversation relative thereto was this: “The third time he came, there were five or six bales of the poor hay and I told him that would not do, and he said he would take off what I wanted, and Greenleaf would take the rest. We put that on again, and when he came again he drove up to Mr. Green-leaf’s store-house. I asked him what that meant. He said I should not have it in that way. I told him I did not buy damaged hay. He said I should not have any of it, unless I took the whole. I told him again I did not buy damaged hay. The reply he made was : ‘You take what you have got, and go to hell with it.’ I did not know the way to hell, and so I went to Boston with it.” He was then asked whether he carried the hay to sell for Foye, or whether it was sold to him, and whether or not Foye ever demanded a re-delivery of it, and replied, “It was sold to me,” and that no re-delivery was ever asked for, adding: “When I got back from Boston, I met Foye at Stacy’s corner. 1 said if you will stop a few moments, I will pay you for that hay; and he said, ‘what in hell did you go off, and not pay me for ? ’ I said, Mr. Foye, I never saw you; you did not present any bill, but if you. will stop here five minutes till I go to the house to get the money, I will settle with you.’ I went to the house and got my papers and came right back. I was not gone over five minutes. I hunted all over town for him. I was in a hurry to go up the river. There was a fair wind. I went up to Mr. Elmes’ shop, and left the money with him,” &c., &c.</p> <p>June 1, 1860, the plaintiff brought trover against the defendant for the conversion of the same hay that is mentioned in the account annexed to the writ in the present action. This trover suit was referred and the referees reported in favor of the defendant on the ground of the sale to him, which prevented the taking from being tortious, and judgment was entered upon the report, on the second Tuesday of Jamiary, 1862.</p> <p>The defendant requested the judge to give these instructions to the jury:</p> <p>“I. That if the hay was sold by the plaintiff» to the defendant in the market, for shipping, without being branded with the first letter of the Christian and the whole of the surname of the person putting up the same, with the name and state where such person lives, the sale was in violation of law, and the plaintiff cannot recover the price agreed to be paid.</p> <p>II. That if the hay was so sold by the plaintiff to the defendant, and delivered to the defendant the title passed to the defendant; and if the defendant sold the hay in Boston and afterwards promised the plaintiff to pay him without any new consideration, such promise is void, and no action can be maintained for the price of the hay.</p> <p>III. That if the plaintiff rescinded the contract of sale to the defendant on the ground that he would not accept the whole of the hay, so that the title did not pass to the defendant, and there-, upon sold the whole lot, including the portion hauled to the defendant, to Mr. Greenleaf, for a price agreed upon by the parties, and agreed to deliver the hay to hixn, and did deliver to said Greenleaf, on that day, a portion of the lot of hay under the contract, the title to the whole, including the portion hauled to the defendant would pass to Greenleaf, and the plaintiff cannot maintain this action for the hay or the money received by the defendant for it.</p> <p>The first request was given. The other requests were not given, except as modified in the charge. The presiding judge instructed the jury as follows :</p> <p>“By the statute of this state all hay pressed and put up for sale in this state is required to be branded upon the boards or bands which contain it, with the first letter of the Christian name and the whole surname of the person who puts it up, together with the name of the state and the town where the party resides. And if any such hay, not thus branded, is offered for sale, or shipping, it is liable to forfeiture, and may be forfeited, one-half going to the party complaining and the other half to the benefit of the town where the transaction takes place. And if any shipmaster shall take on board any>pressed hay not thus branded, he shall be liable to a penalty of two dollars for every such bundle taken on board his vessel for that purpose.</p> <p>“The plaintiff brings this action for the purpose of recovering compensation for a certain amount of hay which he delivered to the defendant, many years ago. ILis action contains two counts: the first is a count on an account annexed to the writ, and the next is a count for money had and received by the defendant for the benefit of the plaintiff. Although some suggestion was made at the opening of the plaintiff’s case in regard to the first count in the writ, I understand that now upon looking the whole matter over, the plaintiff expects yon to consider whether or not under the rule of law applicable to the case, he is entitled to recover upon that count in the writ; and whether entitled to recover under that count or not, he claims that he is entitled to recover upon the second count.</p> <p>“There is no question between these parties but that the defendant did receive a quantity of hay from the plaintiff, whether there was a contract for sale or otherwise. And there is no question that the hay thus delivered was pressed hay and not branded. The question arises as to the effect of any contract for sale, the parties may have made: Is it one that can be enforced by the courts ■of this state ? This sale is an illegal one, if such one was made, and being illegal in its character, will the courts in this state, established and ordained for the purpose of executing the laws, lend its aid in violation of those very laws? The simple inquiry suggests an answer in the negative. The courts will not aid parties in enforcing contracts when made in plain violation of the law of the land. This statute was passed, undoubtedly, from motives of public policy, for the protection of honest purchasers ; to enable the purchaser of an article which did not prove to be what it appeared to be, to trace the hay back to the guilty party, and to enable him to punish such party.</p> <p>“Now, I have to say to you gentlemen, that if these parties entered into a contract, the plaintiff to sell, and the defendant to buy this hay, unbranded, that that was a contract made in violation of the law and the law will not aid either party in enforcing it, and that the plaintiff, if such was the contract between the parties, cannot recover from the defendant for the price under the first count in the writ. Can he recover under the second count ? I propose principally to direct your attention to the principles of law, without recapitulating the testimony or any considerable portion of it before you. Tou will undoubtedly recollect all that is material in the case. There has been some testimony tending to show, or by which, it is claimed by one. side, or perhaps both sides, that this pretended contract was rescinded by the plaintiff in consequence of a refusal by the defendant to receive certain objectionable bundles, as not conforming to the quality which he had agreed to deliver. It is claimed by the counsel for the defendant that if this was done by the plaintiff — that if he then and there stated that if he did not take the whole of the hay as it was, it being precisely the quality stipulated for, that he should not have any of it, that the contract was up, and that he did then and there negotiate with one Greenleaf and did sell all to him, delivering a portion to him, that then the plaintiff parted with the property to Greenleaf, and having parted with his interest in the property to Greenleaf, he cannot maintain this action against the defendant. Now, gentlemen, how was this, and what is the rule of law applicable to such cases ? The original contract, if a contract was made, between the plaintiff and the defendant, was an illegal one and conferred no right of property in the hay not delivered, upon the defendant — no right that he could enforce at law. If, for instance, the parties had entered into this contract and a part was delivered to the defendant and a part remained in the plaintiff’s possession, think you that if the plaintiff refused to deliver the balance, the law could compel him to deliver it ? Certainly not. So that if the illegitimate conti'act was undertaken on the part of the plaintiff to be rescinded by him, the advantage that he undertook to confer upon Greenleaf would confer no greater rights than he had conferred upon the defendant. The contract with Greenleaf would be equally illegal, and therefore I do not give you the instruction requested by the defendant.</p> <p>“Now it is claimed further, on the part of the counsel for the plaintiff, that this hay, whatever may have been the original contract or arrangements between these parties, actually went into the possession of the defendant with the plaintiff’s consent and knowledge, after the rescission of the contract and that it was taken to Boston by him, with the consent and knowledge of the plaintiff, and that having been thus taken, and having been sold by him in Boston, and having upon his return to Wiscasset promised the plaintiff that he would pay him the amount that he had received for the sale of the hay, deducting the freight; and therefore from this circumstance the plaintiff is entitled to recover upon the second count in the writ. In other words, that the defendant now has money in his possession which, in equity and good conscience belongs to the plaintiff, and that he is bound to pay over the money to the plaintiff. Now, gentlemen, how was that? I instruct you that if this hay did thus go into the possession of the defendant, with the consent of the plaintiff, and did leave Wiscasset in the defendant’s vessel with the plaintiff' ’s knowledge and consent, and the defendant did take it to Boston, and did.sell it and come home, and promised to pay the proceeds to the plaintiff — deducting the freight, that the plaintiff is entitled to recover the amount of the sales of the hay, deducting the amount of the freight. So it will be important for you to consider the taking of the hay with respect to the knowledge and consent of this plaintiff, and whether upon his return he offered to pay the amount to the plaintiff, deducting the amount of the freight. For if he did, then I instruct you that the plaintiff is entitled to recover.</p> <p>“But if the defendant took the hay without the consent of the plaintiff, if he took it tortiously, and took it to Boston, and there sold it, and then came home and offered to pay the plaintiff the amount of the proceeds, that he would not be entitled to maintain this action, for the reason the question of tortious taking has been once solemnly adjudicated between the parties, and it is not competent to have that matter adjudicated upon again.</p> <p>“These are the principles of law, as I understand, which are involved in this case; and it is for you to apply the testimony upon these principles.”</p> <p>The verdict was for the plaintiff, and to the foregoing instructions and refusals to instruct, the defendant excepted.</p> <p>The plaintiff cannot recover on the contract of sale, because the hay was not branded ; on this point the charge of the presiding judge is correet. Foye v. Southard, 51 Maine, 117; Buxton v. Hamblen, 32 Maine, 118.</p> <p>The second and third requested instructions should have been given.</p> <p>By the sale to Greenleaf of the whole of the plaintiff’s hay, including what he had hauled to the defendant, and a delivery of part,1 the title to the whole, as between the parties, passed to Greenleaf. A sale by the owner of property in the hands of one wrongfully holding it, will pass the title to purchaser without delivery, and the purchaser may maintain trover for it. Lanfear v. Sumner, 17 Mass., 110 ; Parsons v. Dickinson, 11 Pick., 352.</p> <p>The title to property sold on the Lord’s day, passes to the purchaser. Richardson v. Kimball, 28 Maine, 163 ; Myers v. Meinrath, 101 Mass., 366.</p> <p>The plaintiff never rescinded the contract of sale with Green-leaf, and if the defendant did not purchase the hay of Poye, he is liable in trover to Greenleaf.</p> <p>The instruction “that if this hay did thus go into the possession of the defendant, with the consent of the plaintiff, and did leave Wiscasset in defendant’s vessel with plaintiff’s knowledge and consent, and the defendant did take it to Boston, and did sell it aqd come home, and promised to pay the proceeds to the plaintiff, deducting the freight, then the plaintiff is entitled to recover the amount of sales of the hay deducting the amount of freight,” as applied to the evidence in the case,- is erroneous. Though correct as an abstract proposition there was no evidence in the case to authorize it. Hopkins v. Fowler, 39 Maine, 568 ; Wright v. Old Colony R. R. Co., 9 Gray, 113.</p> <p>The verdict is clearly against the evidence. If it was a sale, the plaintiff cannot recover. If a conversion, he cannot recover, for he brought his suit for that cause, and defendant recovered judgment against him.</p> <p>There is no evidence that the defendant took the hay of the plaintiff to carry to'Boston and sell for him, on freight. The plaintiff’s own evidence and that of his brother also, is against it. The plaintiff says lie sold all the hay to Greenleaf.</p> <p>The averment in the plaintiff’s first writ that the defendant wrongfully took and converted the hay, is evidence he did not take it by plaintiff’s request, to sell for him.</p> <p>Having once elected to rely upon a tort, he cannot now waive it and bring assumpsit. Ware v. Percival, 61 Maine, 391.</p>

On report. Debt, upon three bonds, given by Mr. Giles as collector of Boothbay for 1866, 1867, and 1868, and the other defendants as his sureties. A separate action was commenced upon each bond, but they were all submitted upon one report, as the legal questions raised in each case were identical.

On report. William Benner of Waldoboro, in this county, was chosen collector of taxes by that town, in 1861, and qualified for and entered upon the duties of that position. Among the taxes committed to him were those against Evarts Bulfinoh, a resident of Waldoboro, amounting in all (state, county, town and school district) to forty-nine dollars and fifty-seven cents. The regularity of the assessment, and the liability of the citizen to taxation there, were not denied.

On exceptions. Appeal by Mr. Ford from an award of the county commissioners in estimating the damages sustained by him in having certain land of his taken in the alteration of the course of a highway in Whitefield.

On -exceptions. Trespass de bonis asportatis, for taking and carrying away thirty-five tons of ballast stones from the bank of the Cathance river, in Bowdoinham, in the summer of 1873.

<p>Pauper supplies — furnished by one overseer.</p> <p>United action upon the part of overseers of the poor in furnishing supplies' to one falling into distress in their town is not necessary to the'interruption of the running of the time in which a settlement will he gained, provided a majority of the hoard, upon learning the facts, ratify the action of their colleague in affording the relief.</p> <p>A verdict will not he set aside on account of the reception of testimony legally inadmissible, if it he immaterial and entirely harmless.</p>

<p> When decree for alimony can be reviewed. </p> <p>Where a husband obtained a divorce upon his own libel, which contained no mention of his wife’s dower or alimony, and no decree was made on that subject, it was held that the wife could not review the proceedings so far as alimony and dower were concerned. If any decree can be made as to either while the decree obtained by the husband stands unreversed, it must be upon an independent libel praying for it, filed by the wife.</p>

<p>On report.</p> <p>Assumpsit, for a legacy given the plaintiff’s intestate by the will of Willoughby Prescott.</p> <p>Upon the twenty-ninth day of March, 1854, this will was executed and the maker died in January, 1859, and it was admitted to probate March 1,1859. The second bequest was the one under consideration, and read thus : “I give and bequeath to my son, George Prescott, the sum of two hundred dollars, placing it in the hands of the executor for his use and benefit as he may need it, and not receiving any more at any time than what is necessary for his benefit at the time.” George Prescott survived his father, but died before being paid the legacy, and the plaintiff was appointed his administrator. Charles Morse was made executor of the will of Willoughby Prescott, and accepted that trust, but did not give any bond as trustee, as was understood to be the fact when this matter was previously before this court. See Prescott v. Morse, 62 Maine, 447, 450.</p> <p>Charles Morse, executor of Willoughby Prescott, died in February, 1864. His son, of the same name, the present defendant, be.came executor of his will, and is sued here, in that capacity for said legacy.</p>

On exceptions. Indictment, presenting that the respondent, “on the eighth day of May, A. D., 1873, at a plantation called Highland, &c., did travel from place to place in said Highland, and did then and there represent himself to one Joshua R. Howard, of said Highland, to be the agent of James Patten & Company, of said Boston, for the purpose of procuring orders for the sale of intoxicating liquors, and did then and there obtain of the said Joshua R. Howard an order on said…

On exceptions. Trespass de bonis, for taking three cows. The plaintiff claimed title to the property by virtue of a bill of sale signed by one Frances A. Sawyer, wife of Charles E. Sawyer, which bill of sale was executed at the plaintiff’s house in Lisbon, April 11,1871, and a delivery of the property to the plaintiff by Mrs. Sawyer, about two or three weeks afterwards, on the Getchell place in Webster, where Mr. and Mrs. Sawyer then lived.

On exceptions. Trespass vi et armis, for an alleged assault and battery.

On exceptions. The facts in this case are substantially the same as those set forth in the case of Webster v. County Commissioners, 63 Maine, 27. The commissioners.filed their return, locating a way, at their October term, 1870, and the case was thence continued from term to term, till their October term, 1872. At this last term, but on the fifth day of March, 1873, their proceedings were closed and recorded.

On exceptions. This is an appeal from a decree of the county commissioners of Androscoggin county, on a petition of the inhabitants of Webster, asking the discontinuance of a certain road in Webster, the decision being against the petitioners; which petition was entered in the supreme judicial court for Androscoggin county, at the January term, 1873; being the next term of said court after the proceedings were closed and recorded by the county commissioners.

On exceptions. Assumpsit, to recover a balance due the plaintiff for logs furnished the defendant company, and for the driving of the same down the Androscoggin river during the spring of 1872. To sustain his claim, the plaintiff offered in evidence a contract for two million feet of logs, dated September 28,1871, and another contract of that date for driving the logs; also an additional contract for one million feet more of logs, dated the following November.

On exceptions. Debt, under E. S., c. 42, § 3, brought July 24, 1874, to recover twice the value of the plaintiffs’ logs alleged to have been taken by the defendants.

<p> Practice in a real action ~by a mortgagee. </p> <p>The mortgagee has the legal title to the mortgaged premises, and the right to possession as against the mortgagor, when not otherwise agreed, both before and after condition broken. In a writ of entry wherein he declares generally on his own seisin, upon proof of title, he may have judgment at common law, unless the defendant having the rights of the mortgagor, claims a conditional judgment according to the statute.</p> <p>In such writ, originally brought for two parcels of land, he may, with leave of court, amend by striking out his claim for one of the parcels, and have judgment at common law for the other, if the defendant does not desire a conditional judgment.</p> <p>In any such suit the court will render judgment as at common law when neither party claims the conditional judgment.</p>

On exceptions to the ruling of the justice of the superior court. Assumpsit upon a parol contract for the manufacture of staves. The case was tried by the justice of the superior court without the intervention of a jury, at the March term, 1873, subject to exceptions in matters of law.

On report. Real action in which the demandant demands two parcels of land situate upon Market, Exchange and Congress streets in Portland. The lot described in his first count he claims by virtue of a levy of an execution thereon in his favor against the defendant; that described in his second count he purchased at a sale thereof to satisfy a tax assessed upon it and against said Smith as its nonresident owner.

On agreed facts. Petition fox’ certiorari to bring up the proceedings of the county commissioners of Cumbexdand county in locating a certain way, and to quash the same.

<p> Copyright. Equity, jurisdiction. </p> <p>An owner in common of a copyright, who has, at his own expense, printed, published, and sold the book copyrighted, is not liable, in the absence of any agreement inter sese, to account to his co-owner.</p> <p>This court sitting in equity will not entertain jurisdiction of a bill between owners in common of stereotype plates, seeking for an account for the use and income of the common property, when no diseevery is sought, and the accounts are simple and can be properly and conveniently adjusted in an action at law.</p>

On report. Assumpsit, to recover for a loss by fire of a quantity of fish scrap alleged to be the property of the plaintiffs, stored in the building at Boothbay, Maine, known as the Atlantic Oil Company’s Works, upon which the defendants issued a policy insuring it to the amount of two thousand dollars, from the eleventh day of March to the first day of June, 1872. The fire occurred April 18, 1872.

On exceptions. There is no occasion for any statement of the facts of this case, nor of the issues of law presented by the exceptions. It was agreed that the cause should be submitted in writing within a limited period after the adjournment of the July law term. The time elapsed without any arguments being forwarded to the chief justice.

On exceptions. Assumpsit, upon a promissory note of this tenor:— S100.00. “April 13, 1871. On demand, for value received, I promise to pay to the order of either Eliza C. Durgin, Almyra H. Durgin, or Eliza C. Durgin, 2d, one hundred dollars with interest. Benjamin W. Bartol.” The three persons named in the body of the note brought this suit jointly thereon, there being no indorsement upon the back of the note.

<p> Amendment. Pleading. Practice. </p> <p>A count for a balance of account, or for the amount due, is amendable by adding a bill of particulars.</p> <p>If the defendant neglects to demur and proceeds to trial without a bill of particulars, it is too late for him to object for the want of such bill.</p>

On exceptions. Replevin of about twelve hundred dollars’ worth of goods, which were purchased originally by the defendant of the plaintiffs, who now claimed the right to replevy them because of the insolvency of the vendee and of fraudulent representations by him as to his solvency and business standing and prospects which induced them to make the sale.

On report. Real action to recover an undivided seventh of three parcels of land, each parcel being described in a separate count. The parties are children of the late James B. Thornton of Scarborough, deceased, who died February 13, 1873, leaving seven heirs.

On pacts agreed. Debt upon a bond signed by the defendant with one Nathaniel J. Miller, deceased.

<p>Bill in equity.</p> <p>This is an amicable bill brought, under R. S., c. 77, § 5, by the executor of the will of Isaiah Yickery, late of Cape Elizabeth, deceased. The testator made his will on the twenty-third day of October, 1873, and died the following day. Thirty-one persons, supposed to be immediately or contingently interested, were made parties defendant to the bill, the purpose of which was to obtain a construction of the second, third and seventh clauses of the will aforesaid, which are recited in the opinion. The second clause gave an annuity to the testator’s wife, during her life. By the third, $1200 were given to his sister, Sally McKenney, who had died about six months before. The seventh was the residuary clause, giving the residue of the estate, after the payment of debts, legacies and annuity “to the lawful heirs of Sally McKenney, Mary Hanscom, George W. Yickery and Louisa Bradman, equally.”</p> <p>The complainant desired this court, sitting in equity, to inform him whether or not he was to be considered as trustee of the residuary estate for the purpose of raising and paying the annuity to the widow, no trustee being specifically designated by the will; and if the executor was to be held as trustee, what amount he should hold in trust for the purposes aforesaid; and if not trustee to whom should he turn over the property. As to the third clause he asked whether or not it reverted to the general estate, by reason of the death of the legatee before the will was executed, or if it should be paid to her heirs; and for instructions as to the mode of distributing the residuary estate under the seventh clause, and what persons were entitled thereto, and in what proportions.</p> <p>Upon the question whether or not the executor was trustee, Mr. Locke cited R. S., c. 77, § 5, item seventh; Howard v. American Peace Society, 49 Maine, 288 ; Baldwin v. Bean, 59 Maine, 481.</p> <p>As to the amount to be retained, Orr v. Moses, 52 Maine, 287. Whether the devise to Sally McKenney lapsed or not, she having left lineal descendants, R. S., c. 74, § 10; Snow v. Snow, 49 Maine, 159. The court must determine the testator’s intention in view of the fact that he then knew, when he executed the will, that Mrs. McKenney was dead.</p> <p>Under the residuary clause, does the word heirs mean children or issue, said George W. Yickery being alive, and what proportion does each child receive, and what do the three Jordan children take who are children of Susan D. Jordan, who was a daughter of Sally McKenney ?</p> <p>The question that concerns our clients is whether the twelve hundred dollars bequeathed by the third clause is to be treated as a lapsed legacy, or whether it descends to the children of the person named as legatee, under E. S., c. 74, § 10. This statute is substantially as first enacted February 6, 1784. 1 Laws of Mass., Ill. Other states have similar statutes and such a one was passed in England in 1838. It is to be construed liberally. Paine v. Prentice, 5 Mete., 396. Ordinarily, the question arises as to the effect of the death of a person made a legatee, who dies after the execution of the will; but the principle is the same, and the sense of justice as strong, in the case of one dying before its execution. Martin's Appeal, 40 Penn., Ill; Winter v. Winter, 5 Hare, 306 ; Mower v. Orr, 7 Hare, 473. The gift of the residuum “to the legal heirs,” &c., must be taken as a word of purchase — designatio personarum — and signifying children. Else the gift to the heirs of the living brother would be void, since no one is heir to the living. B[ead v. Horton, 1 Denio, 165 ; Otis v. Prince, 10 Gray, 581; Morton v. Barrett, 22 Maine, 257; Mace v. Oushman, 45 Maine, 250.</p> <p>The executor cannot purchase an annuity. Everett v. Oarr, 59 Maine, 325. The legacy to one already dead is void. 1 Jarman on Wills, 311, 312, and notes. And E. S., c. 74, § 10, does not reach such a case.</p> <p>The residue is to be distributed “equally” among the children and grand-children of the persons named in the seventh item. Wheeler v. Allen, 54 Maine, 232.</p>

On report. Assumpsit, upon a policy of insurance issued by tbe defendant company to Patterson & Haines of Saco, Me., upon a quantity of ice, estimated at seven thousand tons, stored in tbeir ice houses upon the banks of the Saco river, in Saco. The policy was issued July 3, 1872, for thirty-five hundred dollars.

On exceptions. Petition for a writ of certiorari to bring up and quash the pro ceedings of the county commissioners relative to a petition of the Portland and Ogdensburg Railroad Company-for a diminution of the damages awarded by the county commissioners to James Norton for his land taken for the use of said corporation, and in ordering the dismissal of such petition, as fully appears by the opinion.

On exceptions. Indictment for an assault with intent to murder. The respondent was convicted. The name of the person assaulted mentioned in the indictment was Annie Maria St. John, which she when called as a witness for the prosecution testified to be her name. Upon her cross-examination, it appeared that she had been married prior to the time named in the indictment, to a man named Penney, and had been known by the name of Penney and of St. John.

<p>On REPORT.</p> <p>Trover, brought September 13, 1873, to recover the value of two $500 bonds of the issue of May 20,1863, by the Portland and Oxford Central Railroad Company, payable in ten years from date to the trustees therein named or bearer having three interest coupons attached to each bond. These coupons all fell due after the bonds were bought by Mr. Harlow, not being dishonored at the date of his purchase. The facts are indicated in the syllabus and are stated more fully in the opinion. Due demand before suit was admitted.</p> <p>Upon so much of the evidence as was admissible, this cause was submitted to this court with jury powers. The bonds were placed in the hands of the court as evidence and in case of judgment for the plaintiff were to be delivered to him in satisfaction thereof; otherwise to be returned to Mr. Harlow; and no costs to be claimed in either event.</p> <p>The case establishes that these bonds were fraudulently put into circulation, which throws the burden upon the defendants that they obtained possession of them fairly, without any knowledge of Le fraud, in the ordinary course of business, unattended with any ciieumstances justly calculated to arouse suspicion. Aldrich v. Wxrren, 16 Maine, 465; Perrin v. Noyes, 39 Maine, 384; Munroey. Cooper, 5 Pick., 412, and cases there collected.</p> <p>Ahnitting that the defendants had no actual knowledge of the theftof these bonds, did they come into their hands in the ordinary c(urse of business ? Evidently not. Gould, the cashier of a leading bank, familiar with business, makes no inquiry how these bonds, not often found in the market, came into the hands of a broker three hundred and fifty miles oif, who is understood to be so solicitous to sell^ that Gould thinks (correctly as the result shows) he will take ten per cent, or less for them. Harlow does not even ask this New-Yorker’s name, and Gould retains no recollection of it, and. will not refresh his memory.</p> <p>They had notice of these and other suspicious circumstances. “Notice or knowledge does not mean express notice, but the means of knowledge,” which is “equivalent to notice.” May v. Chapman, 16 Mees. & Weis., 360; Goodman v. Simonds, 20 Howard, 367; Kimball v. Billings, 55 Maine, 147; <Lawrence v. Norton, 4 Esp., 56 ; Murray v. Lardner, 2 Wallace, 119; Anderson v. Nicholas, 28 N. Y., 604.</p> <p>The bonds were payable to bearer, not over-due, and nothing upon their face to excite suspicion. This case is to be decided then upon the facts after applying to them the mercantile law and usage relating to this class of paper. Goodman v. Simonds, 20 Howard, 367.</p> <p>There was nothing unusual in the purchase; no suspicious circumstances, unless it be my- payment of $100 in good money for the paper of that corporation ! Mr. Gould is not liable in any event, the sale was by the New York broker directly to me. Mr. Gould being merely the medium of communication.</p>

On motion for a new trial. Case, for a malicious prosecution, in instituting an action which purported to be brought by Samuel Winslow, as next friend of Harrison Joy, a minor, to recover from Mr. Soule the boy’s wages for two months’ labor performed under an agreement for a longer term of service which was not binding upon the boy on account of his minority. Mr. Soule tendered seventeen dollars and the amount recovered in that suit did not exceed this sum.

On exceptions to the rulings of the justice of the superior court. Complaint and search and seizure process made to and issued by the municipal court of the city of Portland, against the present respondent and her husband, William Corkrey. Mr. Corkrey was discharged by that court, but his wife was convicted and sen-fenced to pay a fine of fifty dollars and costs, from which judgment she appealed to the superior court.

On exceptions. Indictment found at the January term, 1874, of the superior court for this county, under R. S., c. 17, § 1, for maintaining a nuisance, charging that the respondent on the first day of January, 1873, at Decring, &c., and on divers other days and times between that day and the day of finding of the indictment “did keep a certain house of ill-fame, then and there resorted to for the purpose of prostitution and lewdness, by the consent and with the knowledge of…

<p>On exceptions to the rulings of the justice of the superior court.</p> <p>Complaint and process of search and seizure coming by appeal from the municipal court of Portland to the superior court.</p> <p>The jury rendered a general verdict of guilty, and after verdict and before sentence, the defendant moved in arrest of judgment for the following reasons:</p> <p>First. That the verdict should have been special under the direction of the court on all facts necessary to determine the adjudication of the court.</p> <p>Second. Because the complaint does not allege that the complainant had probable cause to believe that intoxicating liquors were kept and deposited by the defendant and intended for sale by him.</p> <p>Third. Because for lack of sufficient allegation in said complaint the whole proceedings are void.</p> <p>This motion was overruled ; to which ruling the defendant excepted.</p> <p>The complaint and warrant were in the form given in the R. S., page 315.</p> <p>R. S., c. 27, § 47, expressly requires that “the jury shall find specially, under the direction of the court, on all facts necessary to determine the adjudication of the court.” .</p> <p>The fourth amendment to the constitution of the United States requires that process for search shall only issue upon probable cause, supported by oath or affirmation.</p> <p>Our state constitution is to the same effect. Art. 1, § 5. There fore, the existence of probable cause should be stated or shown by the complaint.</p>

On exceptions. Indictment under R. S., c. 27, for being a common seller of intoxicating liquors. The respondent filed a plea that the person who signed the bill as foreman of the grand jury was not legally occupying that position because voted for and elected by three men, assuming to act as members of the panel, who were not properly so, becau.se the meeting at which they were drawn was notified August 14, 1873, and holden on the eighteenth day of the same month.

On exceptions. Search and seizure process, under R. S., c. 27, § 35, issued September 25, 1873, upon complaint of the sheriff, in the form prescribed by law, that he believed “that on the twenty-fourth day of that month, and on the day of the complaint, intoxicating liquors were kept in Portland by Patrick Plunkett in the dwelling-house and its appurtenances situated on the southerly side of Adams street, and numbered two on said street; a part of which said dwelling house…

On exceptions. Real action. Both parties claim under William B. Freeman, a former owner of the demanded premises; the demandant by virtue of a levy made December 12, 1872, and the tenant under a deed from Freeman to him dated and delivered March 29, 1871, but not recorded till August 12, 1872.

<p> Defective way; evidence of. </p> <p>At the foot of a hill a highway became comparatively level and the travel passed, for several rods, upon each side of the middle track, as well as in it, the side tracks being largely used. In October, 1870, the town constructed a culvert across the centre of the located way, about eighteen feet long, with the surface of the covering stones about six feet wide and eighteen inches above the general level of the ground. Earth was carted in to make the grade on each approach to the culvert for a distance of six to fifteen feet, hut the stones of one side of the culvert were exposed. The culvert, thus constructed, left ample space for teams to pass along the easterly side of it, in the old side track. The earth used to fill the approaches became very muddy with the fall rains, and was then trodden up and frozen in a very rough condition. The embankment of the culvert was not railed or guarded. To avoid the had place in the middle of the road, thus caused, teams used to sheer to the east, pass the end of the culvert and then re-enter the main road. After the snow came the wind swept it from the culvert and, to avoid the bare place, teams continued to follow the side track. The plaintiff was familiar with the road before the building of the culvert but had not passed it afterwards until the time of the injury, which happened about ten o’clock of the night of the fifteenth of February, 1871, and was caused by his driving along the eastern side track so near to the culvert that one runner of the sleigh struck the exposed stones, whereby he was thrown out and injured. Under these circumstances a finding by the jury that the way was so defective as to make the town liable for the injury was not so clearly unsupported by the evidence as to justify setting aside the verdict.</p> <p>Upon this state of facts, the defendants asked to have the jury instructed that “if Whitney was driving at the rate of five or six miles an hour, as he testitifies, in as dark a night as ho describes that of the accident, then he was not in the exercise of due care.” This instruction was properly refused, the question of ordinary care having been left to the jury under correct Instructions.</p>

On exceptions. Indictment under B. S., c. 27, for violation of the liquor law. There were seven of these cases in which the pleadings were the same as in the case of Ward. In each the respondent seasonably filed a plea in abatement alleging the disqualification of a grand juror from Portland, one of the panel by which the indictment was found. To this plea the county attorney filed a special demurrer for the state, which was joined by the respondent.

On exceptions. Real action, brought to recover land in Casco, thus described in the original writ, dated the eighth day of October, 1874 : “a certain piece of land in said Casco, being a part of lot numbered fourteen in the seventh range, containing about one hundred acres, being the north-easterly half of said lot and the south-easterly part of the other half, adjoining land sold by William Decker to Aaron B. Holden; whereupon the plaintiff saith that she was seized of the…

<p>Assault — punitive damages in; evidence of defendant’s poverty admissible.</p> <p>In caso of a gross and malicious assault, the jury may, in their discretion, allow exemplary damages. .</p> <p>In cases where it is competent for the plaintiff to prove the wealth of the defendant to increase the damages, it is equally competent for the defendant to show a want of it, to diminish them. Nor can he be deprived of this right by the omission of the plaintiff to offer any proof on that point or make any claim for damages on that ground.</p>

<p>Contract — conditional, effect of.</p> <p>The plaintiff and defendants made a special contract by which the former became master of the latters’ ship, and as such earned wages and made certain disbursements. At the same time he contracted with one of the defendants for a portion of his interest in the vessel and from that time received the earnings of such portion, but was to have a bill of sale only when he had paid the price. The vessel was lost before the bill of sale was given. Held, that this was a conditional sale only and would not take away the plaintiff’s right to maintain a suit at law to recover his wages and disbursements.</p> <p>As the ship earned freights, the plaintiff from time to time appropriated a part thereof toward the payment of his wages, Held, that under his contract he had a legal right to do this, and on such payments, the law in the absence of any agreement to the contrary requires him to account only for the legal value of the coin received, whether foreign or domestic, whatever may have been its market value at home.</p> <p>Owners of vessels are not liable for wages earned before they became owners. The action is therefore defaulted and to stand for the assessment of damages, which are to be for the amount of wages earned and disbursements made after these defendants became owners, with interest from the date of a demand therefor.</p>

On exceptions. Assumpsit on an accepted draft. After the plaintiff had made out a case, the defendant offered to prove an agreement made under the hand and seal of the plaintiff with the defendant, after maturity of the draft, to accept a certain percentage less than the whole amount of the draft in payment thereof; and to transfer to some third party his debt on receipt of the percentage within a certain space of time; and that the said percentage was tendered him within…

On exceptions and motion eor a new trial. Assumpsit upon a promissory note for $37.50, dated June 9, 1863, payable to the plaintiff or order in one year with interest. Writ dated May 27, 1870. In the first count the note was stated as above, as if to be paid in money. The second count was the money counts.

On exceptions. Assumpsit on a promissory note bearing date January 3, 1866, made payable to the plaintiff’s testator. The defence was payment of the note, and to prove such payment the defendant called her husband, James Lowell, who was husband of the defendant at the time the note was given and has been such ever since, but the court ruled he could not testify to any fact which happened in the life time of the plaintiff’s testator, and his testimony was therefore excluded.

<p>On report.</p> <p>Debt, to recover $150 awarded to the plaintiff by the county commissioners as damages occasioned by the location of a way over his land in the manner and under the circumstances intimated in the syllabus and fully stated in the opinion.</p> <p>The full court to enter such judg’ment upon the evidence as the legal rights of the parties required.</p> <p>The location of the town way over the route of the bridle road was a discontinuance of the latter. Commonwealth v. West-borough, 3 Mass., 406 ; Sprague v Waite, 17 Pick., 309.</p> <p>Then the plaintiff’s right to damages was perfected by the taking of his land. The acts of the workmen upon this newly located road, done under the supervision of the surveyor, were his acts as a representative and agent of the town in that matter. Elder v. Bemis, 2 Mete., 599. And the location became a highway for genera] and unobstructed travel from the time it was turnpiked, the gate, sills, &c., thus removed by the surveyor and his men. Loiter v. Damon, 17 Pick., 284.</p> <p>Although the town was opposed to the location originally, and protested against it, yet if, instead of seeking to quash it for alleged errors, or to close it up by bars or indications that it is not open for general travel, its officers apparently acquiesce in establishing it, removing the bars already across it, and fitting it for use, the town will.be held to all just responsibilities for all land or other damages accruing from the construction and maintenance of the way. Dewey v. Worcester, 21 Pick., 449 ; Bliss v. Deer-field, 13 Pick., 102.</p> <p>Interest should be allowed from the time the damages were payable under the judgment of the county commissioners ; i. e., from the time the gate, sills, &c., were removed and the way made public, in May or June, 1871. Gay v. City of Gardiner, 54 Maine, 479.</p> <p>In the petition to the county commissioners, the jurisdictional facts were sufficiently set out. Goodwin v. County Commissioners, 60 Maine, 328 ; North Berwick v. County Commissioners, 25 Maine, 69. The fact that the few rods where' the location of the county commissioners deviated from that of the municipal officers was not built by the town, cannot prevent the way from being considered as opened. Baker v Bunnels, 12 Maine, 235.</p> <p>Being interested in the result, of course the plaintiff attended the hearings before the board of which he was a member, but, for the same reason, lie did not take any part in its action, and his colleagues have joined him in a statement upon the record to that effect. State v. Delesdernier, 11 Maine, 473.</p> <p>It is sufficient that the ultimate location corresponds substantially with that petitioned for. Slight deviations do not affect it. Orringt07i v. County Commissioners, 51 Maine, 570.</p> <p>This same case answers the objection that the record does not show that the petitioners to the selectman were inhabitants, &c. That is immaterial, since their location was not accepted. 51 Maine, 571.</p> <p>But it does appear that it started from the dwelling house of said True in Freeman, and that he was a petitioner. Plummer v. Waterville, 32 Maine, 566.</p> <p>The proceedings of the county commissioners were void, because it does not appear from the record that the selectmen ever reported the way, as laid out by them to the town — but the implication is to the contrary. Small v. Pennell, 31 Maine, 267; Guilford v. County Commissioners, 40 Maine, 296; Goodwin v. County Commissioners, 60 Maine, 330, and cases there cited.</p> <p>Other necessary jurisdictional facts are not stated. Bee cases above cited.</p> <p>As the way never has been opened by municipal authority, but only the same repairs as were previously made were continued upon the old bridle road^ and the gate and sill were removed by some unauthorized person, the time appointed by the county commissioners for the payment of the damages has not arrived; and this action, even if one can ever be maintained, was prematurely commenced.</p> <p>The plaintiff’s name is affixed to the record of the proceedings of the county commissioners, as one of that board, in a case in which he is a party interested.</p>

<p>On exceptions.</p> <p>Appeal from the decision of the county commissioners refusing to discontinue a certain way in Oxford, established by them, known as “the Hackett road.” The petition for its discontinuance was filed with the commissioners on the twenty-third day of Eebruary, 1874, while a motion for the appointment of an agent to build it was pending before the board. A hearing was had on the nineteenth day of May, 1874, and upon the tenth day of June following the appellant’s counsel was notified that the commissioners had decided not to discontinue the road, but would appoint an agent to open it. An adjourned session of the May term of the court of county commissioners was held the next day (June 11, 1874,) at which the appellants appeared and filed a notice of an appeal. The county commissioners hold but two terms of court in each year in Oxford county; on the second Tuesday of May, and the first Tuesday of September annually. At the term of the supreme judicial court holden at Paris, for Oxford county, on-the third Tuesday of September, 1874, being its next session after said proceedings of June 10 and 11,1874, were had — the appellants entered this appeal and moved for a committee. The respondents claimed that the return of the county commissioners had not been placed on file when the appeal was claimed and that it was therefore premature and the notice defective, and moved to dismiss the appeal. Without acting upon either motion the presiding justice directed a continuance of the case without its being requested by either party. At the ensuing December term the case was further continued to the March term, 1875, when both parties called up their respective motions and renewed them. The justice holding that term ruled that the appeal must be dismissed, and the appellants excepted.</p> <p>The county commissioners inform us explicitly that they “decide” not to discontinue the road. This was a declaration of a present determination of the matter and not an intimation of a purpose to be subsequently executed. Russell v. County Commissioners, 51 Maine, 384. No notice of appeal is required by statute. All that is necessary is to enter it at the next term of the supreme court. R. S., c. 18, § 37.</p> <p>The expression “not afterwards” in the statute, § 38, refers to the entry of the appeal and not to the appointment of the committee ; and so the judge understood when he ordered it to be continued.</p> <p>The law, R. S., c. 18, § 5, was sufficient to inform the petitioners and their counsel that the return of the county commissioners could not be placed on file till their next September term; and that an appeal taken June 11 was premature.</p> <p>The case of Friend, appellant, v. County Commissioners of Penobscot County, 56 Maine, 262, is conclusive that this appeal was rightly dismissed by reason of the failure to appoint a committee at the September term, 1874, when it was entered.</p>