Volume 65 — Maine Reports

On motions. Trespass for breaking and entering the plaintiff’s barn in Auburn, December 7, 1872, and taking and carrying away twenty tons of hay and two tons of corn fodder, valued in all at $380. At the trial, at nisi prius, it appeared that the plaintiff was, at the time of the trespass complained of, and had been for about two years, mortgageor in possession, and the defendant, mortgagee of the premises.

On exceptions. Assumpsit. The defendant contracted in the winter of 1865-6, with Bobishaux and Dussault to cut and haul at Gorham, New Hampshire, a quantity of wood at a price agreed per cord. Bobishaux and Dussault obtained their supplies for their men and camps, of the plaintiff, who brought this action to recover for the same of the defendant.

<p> Practice. Fraud. Trespass on the case. </p> <p>When a case is before the law court on exceptions the only questions open for consideration are those presented in the hill of exceptions.</p> <p>Where a woman is led into a void marriage with a married man, under his false pretense that he is a single man, he being at the time, a married man and having a lawful wife alive, held, that an action for deceit therefor is an action of trespass on the case within the meaning of R. S.,c. 87, § 9, which declares among other things that actions of trespass on the case survive; and held further, that in case of his death, the right of action survives against his personal representative.</p> <p>An action on the case is maintainable by a woman against a man for his deceit by which she is led into a void marriage with him; and such action survives against his administrator under R. S., c. 87, § 9.</p>

On exceptions. Keplevin for seven bales of California wool, valued at $1227.

On report. Assumpsit on a promissory note. The defendant, in the lifetime of Robert H. Randall, being indebted to him, to secure the debt, conveyed to him a parcel of land in Wales, giving him at the same time a note for the amount of the debt. Randall, at the same time and as a part of the same transaction, gave Arno a bond to reconvey the premises on payment of the note.

<p>On exceptions.</p> <p>Indictment, alleging adultery on'November 21, 1873.</p> <p>The female defendant was legally married to George W. Hussey, April 30, 1861, at Turner, where they subsequently cohabited as husband and wife. They afterwards separated; and October 15,1865, the defendants were united in marriage by one Isaac I. York, a justice of the peace, and they ever after cohabited as husband and wife. There was evidence that December 14, 1873, George W. Hussey, was alive at Byron, Michigan, (the evidence being that his mother received a letter of that date purporting to come thence from him by due course of mail,) and that no divorce had ever been decreed between George W. Hussey and Lydia Hussey by the courts of this state.</p> <p>The defendants offered to prove that prior to June, 1865, George W. Hussey had deserted and abandoned the said Lydia, and that in June, 1865, he married another woman from Toronto, Ganada, and introduced her to several persons in Portland,in this state, as his wife and exhibited to them a certificate of the last named marriage; that he soon after left this state and had not returned ; that October 16, 1865, the defendants exhibited to said York affidavits from various parties that George W. Hussey had married another woman; that they were thereupon advised by said York that they could legally intermarry; and that they did so intermarry in good faith; all of which the presiding judge excluded, and the defendants, the verdict being guilty, excepted.</p> <p>I. To sustain an indictment for adultery, three particulars must be proved: the corpus delicti ; that one of the parties had been previously married to some other person, and that such person was alive at the time of the acts of adultery complained of. 3 Greenl. Ev., §§ 201, 207; 2 Whart. Grim. Law., §§ 2651-2; 13 Maine, 258.</p> <p>These must each be proved. As regards the third, the mere presumption of the continuation of life is not sufficient. 3 Greenl. Ev., § 207.</p> <p>In the present case, the only evidence tending to show that the former husband of Mrs. Hussey was alive at the time alleged in the indictment, was a letter purporting to have come from him to his mother. The handwriting of the letter was not even identified ; and this evidence is, we contend, clearly insufficient to send a man and woman to state prison upon.</p> <p>II. The defendants appear to have acted, in entire good faith. They sought and acted upon the advice of the officiating magistrate, who was presumably qualified to give them proper advice.</p> <p>There are numberless instances where parties are relieved from the consequences of their acts, done in accordance with the advice of those whom they may reasonably suppose to be qualified to give the same, including magistrates and such; much more, they should not be condemned.</p> <p>The evidence offered by the defendants, and excluded by the presiding justice, shows that there was no knowledge or intent of committing any wrong, much less a crime.</p> <p>Knowledge and intent where material must be shown by the prosecutor. 1 Whart. Crim. Law,' § 631. Wright v. State, 6 Yerger, 345.</p> <p>The evidence offered and excluded, shows that the defendants acted in good faith, and that the best meaning person by a mistake may be thrust into prison for a term of years.</p> <p>cited, as directly in point, Commonwealth v. Mash, 7 Mete., 472 ; Same v. Thompson, 6 Allen, 591, and same parties, 11 Allen, 23.</p>

<p>On exceptions and motion.</p> <p>Case for an injury to the plaintiff’s right hand and arm received on Bridge street, Lewiston. The defect was a loose plank in the sidewalk, one end of which would tip up when the opposite end was pressed down. The plaintiff testified that on Sunday, March 22, 1874, in the afternoon before sunset, she went from her home to her aunt’s house about one-fourth of a mile to get her cousin Nellie Nelligan, about the same age as herself (14), to go to walk with her; that she remained at her aunt’s about fifteen minutes while her cousin was putting on her things to go with her, that they then went out to walk and walked down Bridge street and onward to the bridge across the river between Lewiston and Auburn and then went back home; that while they were going down Bridge street her cousin being in advance of her stepped upon the end of the loose plank farther from her and raised the end next to her so that she hit her toe against it and fell and received the injury named. Distance walked after she fell to the bridge is about three fourths of a mile.</p> <p>The defendants requested the presiding judge to instruct the jury that traveling on Sunday except from necessity or charity is prohibited by law;. that the presumption of law is that traveling on the Lord’s day is unlawful; that in order for a person to recover damages for an injury sustained while traveling on the ■ Lord’s day it is incumbent upon such person to satisfy the jury that the traveling was from necessity or charity; that walking out upon the street or sidewalk in company with an invited friend for the purpose of recreation, a walk or pleasure, is not an act of necessity or charity and is not authorized by law; and, that if the plaintiff was thus walking and received the injury complained of from the alleged defective sidewalk, she cannot recover from the city bound by law to keep the sidewalk in repair.</p> <p>These instructions were refused; but the judge instructed the jury that traveling for the purpose of making a call or visit for pleasure would be unlawful; that a distinction was raised not very obvious but sustained by law; that while traveling for the purpose of making a visit to a friend merely for the purpose of spending the evening in company, was not lawful, traveling on Sunday for the purpose of exercise, gentle exercise in the open air, intending to make no call at any house, but, after taking the walk, returning home, would not be unlawful; that the distinction was, in one case the traveling was for visiting, and in the other, for no such purpose, but simply a walk in the open air without any object of pleasure.</p> <p>There was no other evidence relating to the traveling or its purposes, or the cause of the injury. The plea was the general issue. The verdict was for the plaintiff for $1800.</p> <p>The defendants excepted.</p> <p>The statute provides, c. 124, § 20, that whoever on the Lord’s day, travels, or does any work, labor, or business, shall be punished by a fine; and by § 22, the Lord’s day includes the time between twelve o’clock Saturday night and twelve o’clock Sunday night. There is no doubt about the intention of the legislature. There are the plain, simple words of the statute, “travels, or does any work, labor or business.” This word “travels,” is not obscure, nor is it susceptible of a two fold interpretation.</p> <p>It is only when a statute is ambiguous in its terms, that courts may rightfully exercise the power of controlling its language, so as to give effect to what they may suppose to have been the intention of the law-makers. Wood v. Adams, 35 N. II., 36.</p> <p>A person traveling on the Lord’s day, unless for charity or necessity, cannot maintain an action, for injuries by a defect of the way. Oratty v. Bangor, 57 Maine, 423. Hinckly v. Penobscot, 42 Maine, 89,</p> <p>No distinction is made between those who travel, in town, and those who travel from town to town. The former are as much violators of the law as the latter. Tillock v. Webb, 56 Maine, 100.</p> <p>The statute makes no distinction between those who travel on foot and those who travel in carriages. “It is the traveling’ which is prohibited.” Oratty v. Bangor, ubi supra.</p> <p>The fact of traveling on the Lord’s day as defined by our statutes, • prima facie, makes a violation of the statute by which such traveling is prohibited. The burden was on the plaintiff to show the act within the exceptions provided by the statute.</p> <p>Against this view the plaintiff relies upon the case of Hamilton v. Boston, 14 Allen, 475. That case is no more an authority in this case than it was in Oratty v. Bangor. In that case the plaintiff had been sick during the day, Sunday, of the accident, and being invited by a friend to walk, went for benefit to himself and for exercise.</p> <p>In the case at bar the plaintiff was -not sick, nor is there any testimony going to show what she went out to walk for, whether for health or pleasure. If the purpose in Hamilton v. Boston, was lawful, this case discloses no such purpose.</p> <p>If this plaintiff traveled on Sunday, she was performing an act prohibited by the statute. If she did not travel, the defendants are not liable.</p> <p>I. A person walking a short distance in a public highway, simply for exercise and to take the air, on the Lord’s day, with no purpose of going to or stopping at any place but his own house, or of passing from one city or town to another, is not liable to punishment therefor under the statutes for- the observance of the Lord’s day; and may maintain an action to recover damages for an injury sustained by him while so walking, in consequence of a defect in the highway. Hamilton v. Boston, 14 Allen, 475, and the authorites there cited.</p> <p>This Massachusetts décision has been adopted by our own court. Oratty v. Bangor, 57 Maine, 423.</p> <p>II. The verdict was in accordance with the evidence and the law under the instructions of the presiding judge.</p> <p>The court will not interfere and grant a new trial unless upon strong conviction that the jury have fallen into some error in regard to the nature and force of the evidence. Smith v. Richards, 16 Maine, 200.</p>

<p>The right of a plaintiff to waive tort and sue in assumpsit, is limited to cases where the defendant has converted property into money or its equivalent, and cannot be pressed one step further.</p>

On exceptions. ' Assumpsit, on a promissory note given by the defendant to the plaintiff in Nevada, May, 1866, for $260, and sued here August 5, 1871.

On report. Writ oe entry, to recover about four acres of land in the city of Lewiston, a portion of a hundred acre farm described in two deeds from John Randall of March 24, 1845, the one a mortgage to Nathan Reynolds, the other, in consideration of parental regard and the canceling of mutual accounts, to his son Ezra “for his use and benefit during his lifetime and also the lifetime of his wife Mary, and after their decease the fee to be in Ezra, jr., Zelotes, and Horace,…

<p>A bill in equity, praying for tbe specific performance of a contract, is addressed to tbe sound discretion of tbe court. A decree for specific performance cannot be claimed as matter of right.</p> <p>If a contract for tbe conveyance of real estate is unconscionable, or ambiguous, or through fraud or mistake or want of skill on tbe part of tbe draftsman, does not truly embody tbe agreement of tbe parties, or if for any other reason, tbe court is of opinion that tbe contract is one which in equity and good conscience ought not to be specifically enforced, it will decline to interfere, and will leave tbe parties to sucb redress as can be obtained in an action at law.</p> <p>Thus : where tbe contract required tbe plaintiff to pay one-half of tbe expenditures upon tbe farm mortgaged for tbe support of tbe plaintiff’s father, who was also tbe defendant’s father-in-law, and tbe parties disagreed as to whether tbe support of tbe father was a part of tbe expenditure to be shared ; where also, by tbe contract, one party could be compelled to sell, but tbe other could not be compelled to buy; where tbe plaintiff delayed fourteen years before asking a conveyance, bolding, meanwhile tbe defendant’s notes to the value of tbe farm given as security for tbe promise to convey, wMcli till then he had doclined to surrender; whore, after the fourteen years, the defendant had sold the premises, supposing, as he claimed, the contract was null and void by reason of non-performance by the plaintiff; where also add was asked for relief from difficulties into which the plaintiff got himself in an attempt to defraud his creditors, — the court, in a case where all these questions were raised, declined to interfere to grant relief by decreeing specific performance of the contract for conveyance.</p> <p>A court of equity will not knowingly decree an impossibility. Thus: where A. mortgaged a farm to B. to secure a bond for his maintenance, and then contracted with C. to convey to him the same real estate free of all incumbrance, in a. bill in equity in favor of O. against A., the court in the absence of any waiver by C. or of any expression by Mm of a willingness to accept an incumbered title, refused to decree specific performance.</p>

<p> Quo warranto. Informations. Notice. Exceptions. Practice. </p> <p>Exceptions will be sustained only wlien it appears affirmatively that the party filing them has been aggrieved by the ruling excepted to.</p> <p>Upon filing an information, in the nature of a quo warranto the time and manner of notice is discretionary with the court.</p> <p>In such case an order for defendant to answer if after an appearance is a discretionary matter to which no exceptions lie; — if before appearance and before notice it is void.</p> <p>No one who has not in some way become a party to a suit is in a condition to file exceptions to any of the proceedings therein.</p>

On motion and exoeftions from tbe superior court. Assumpsit to recover the value of a lot of laud of about one-half acre, and buildings thereon in Oape Elizabeth.

On exceptions from the superior court. Assumpsit on a promissory note of the tenor following: “Town of Bingham, county of Somerset, December 15, 1870. One year after date, I promise to pay to the order of J. S. Newcomb two hundred dollars, value received, with use at the Second National Bank at Skowhegan.” Signed, “I. W. Curtis,” and indorsed, “J. S. Newcomb.

<p>Town. Railroad. Vote to aid railroad — what essential to validity of.</p> <p>In order to authorize a subscription by a town to the stock of a railroad company, to aid in the construction of the road under Public Laws of 1867, c. 119, not only the vote to raise the necessary funds and to use them in aid of the road, but also, that directing the particular method of affording assistance (whether by loan, or by subscribing for stock, or in some other manner,) must appear to have been carried by the assent of two-thirds of the voters present, and voting at the town meeting at which the subject was acted upon.</p> <p>Where the town clerk’s record of the doings at such town meeting, after mentioning the state of the vote upon the proposition to aid in the construction of a railroad to the amount indicated, declares that it was voted that such sum be hired and appropriated to pay for a specified number of shares, without saying by what majority this vote was carried, no implication of law arises, that the proportion of legal voters present, and voting upon this proposition necessary for its adoption by the meeting, were in its favor.</p> <p>The maxim “omnia proesumuntur rite . . acta,” &c., cannot be held so applicable to such a state of facts as to authorize an inference that two-thirds of the voters at the meeting were in favor of the subscription; but it is rather to be supposed that it was notthought necessary to ascertain anything more than that it received the assent of a majority of those acting upon the subject.</p>

On motion. Assumpsit. Tbe plaintiffs, September 13, 1873, sued tbe defendant in tbe superior court for a balance due on account to date, of $3481.68. Tbe accounts were sent to an auditor, wbo found due tbe plaintiffs $2077.04.

On exceptions from the superior court. Indictment for arson under ft. S., c. 119, §§ 1,2. The case and the questions raised are stated in the opinion.

On exceptions. Assumpsit for money had and received. The writ was dated October 10, 1871, and returnable to the January term, 1872. At the April term, 1873, the case was submitted to the presiding justice, (Yirgin) with the right to except. The plea was the general issue, with a brief statement of the statute of limitations. When the cause came up for trial, the plaintiff moved for leave to amend the writ by adding a count declaring on a promissory note.

<p> Trial. Fraud. Sale. </p> <p>Where the seller orally agreed to soil an article “at its cost,” at the same time misrepresenting what the cost was, thereby inducing the purchaser to pay more than the cost price therefor; the question was properly left to the jury, whether the transaction was, in effect, a sale at a price called by the seller, and supposed by the purchaser to be, the cost price of the article, or a salo at the absolute and actual cost thereof.</p> <p>Thus: The plaintiff testified: “The defendant said if I would take one-quarter of the property I should have it at cost, and he said the cost for the whole was $3750.” The defendant testified: “I told the plaintiff the property would be $3750; that was just what it cost us, and we would sell him a quarter for just what it cost.” The plaintiff paid at the rate of $3750, which was in fact some $900 above the actual cost to the defendant. In an action to recover the overplus; held, that it was a question of fact for the jury whether it was a sale at the actual cost or at the sum erroneously stated.</p>

On exceptions from the superior conrt. Case for damages in not conveying real estate according to a memorandum in writing. The plaintiff had paid $1000 on tho receipt of the memorandura, August 14, 1874, agreeing to pay the balance, making $10,250 in all, when a proper deed should be made out.

On facts agreed. Assumpsit to recover some $1200, assessed for taxes for 1872, 1873 and 1874, on two stores in Portland devised to the plaintiffs by the late Byron Greenough. The taxes were paid by .the plaintiffs under protest that the property was exempt. The only point in controversy is the question of exemption.

On exceptions from the superior court. Trespass guare clausum. The plea was the general issue with a brief statement. The plaintiff demurred to the plea, and the defendant joined the demurrer.

<p>On exceptions.</p> <p>Bill in equity, for the redemption of a mortgage.</p> <p>At the January term of this court, 1874, this case and another case in equity between the same parties reversed, and two actions at law in the superior court with all other matters in dispute between the parties were referred to a single referee. At the April term, 1874, the referee made report in this case that plaintiff was entitled to redeem the defendants’ mortgage, and that upon the payment by the plaintiff to the defendants of $10,556.25 less the costs of reference $218, and costs of court to be taxed by the court with interest on the balance from May 15, 1874 until payment or tender of payment be made, the defendants should release to the plaintiff said mortgage with all their right, title and interest, as well as that of the testator under the same, including all the repairs and improvements upon the premises therein described made by them or either of them and that the proper decree should be entered accordingly. The docket shows that this report of the referee was received, filed, offered for acceptance, and accepted without objection. After the final adjournment of the term of the court at which the report was accepted, the counsel for the plaintiff entitled to the decree in his favor, drew it, filed it with the clerk, and gave notice thereof to the defendants counsel who filed no “corrections of the decree.”</p> <p>At the April term, 1875, a contention arising as to the form of the decree, the defendants’ counsel moved a recommitment to the referee on the ground that the award was not sufficiently certain to effect the purpose, intent and finding of the referee in that by the refusal of the plaintiff to pay the sum which the referee found the defendants entitled to recover, the defendants would lose certain items claimed in their suit at law and disallowed in that suit because included in the award in this equity suit. The plaintiff’s counsel objected that the motion for recommitment came too late; that the award having been accepted at a previous term of the court could not lawfully be recommitted. But the presiding justice allowed the motion for recommitment, “as matter of law” and the plaintiff accepted.</p> <p>I.. “Objections to any report offered for acceptance, shall be made in writing and filed with the clerk, and shall set forth specifically the grounds of the objections, and these only shall be considered by the court.” Buie of this court, 21st.</p> <p>The objections, if any such existed, could have been made at that term only, and before the acceptance.</p> <p>If not then made, they were then waived, by operation of law, and in fact.</p> <p>II. The report of the referee having been accepted at that term, it could not be afterward recommitted without the consent of all parties.</p> <p>While the court might accept, reject or recommit the report when offered for acceptance at that term, its power and duties in that respect, were at an end when the acceptance was made and the term closed.</p> <p>No further fees or costs were taxable after that term.</p> <p>III. The powers of the referee, as well as his duties to the parties and the court were then exhausted, and the court had no further control over him. He was functus officio, and surely could not be resuscitated after two full terms had intervened, and a third term was just expiring.</p> <p>Strictly speaking, and in fact, the case was not pending in court, after the April term, 1874. It stood upon the docket of the court after that term, only for entry of such decree and judgment as might be ordered in vacation by any member of the court, under the 19th rule of the court in chancery practice.</p> <p>It stood like a case where a verdict has been rendered by a jury, and accepted without objection, and the jury had been discharged and the term closed, and when it only remained for judgment to be entered by the clerk, with or without an order from any member of this court, as of that term.</p> <p>In such a case the relations between the court and jury would have been terminated, and could not be revived.</p> <p>And so in this case, mutatis mutandis, in respect to the award, the referee and the decree.</p> <p>“When the report is accepted, judgment shall be entered thereon as in ease of submissions by rule of court,” &c. H. S., c. 108, § 5.</p> <p>“If the report is accepted, the consequence is a judgment in conformity with it. There can be no variation from it.” Commonvjealth v. Pejepscot Proprietors, 7 Mass., 413.</p> <p>The court “can neither enlarge nor diminish, being only an instrument to execute what the referees have previously determined.” Ibid.</p> <p>The power of arbitrators and referees is exhausted when they have once finally determined matters before them. Bayne v. Morris, 1 Wallace, U. S., 97, citing Russell on Arbitration, 135.</p> <p>And after such determination has been accepted by the court, it has no more power to authorize any further or other award . without the consent of the parties, than it would have to authorize an award without a submission. Morse on Arbitration and Award, 226.</p> <p>IY. But the defendants, not having complied with 19th rule of the court in chancery practice — in that they did not file “corrections of the decree” and give notice thereof, as required by that rule — were not in a condition to object to the decree filed by the plaintiff, and were not entitled to file a motion for recommitment. They had voluntarily sacrificed or waived that right, and were estopped from making such motion. They have contested the decree offered by the plaintiff; and before that had been passed upon by the member of the court to whom it was submitted, this motion was irregular and illegal.</p> <p>Y. If there should be a recommitment of any of the cases, all should be recommitted. This, however, cannot be done by this court, as two of the cases were referred in the superior court.</p> <p>I. In all proceedings in equity interlocutory decrees are at all times within the control of the court. No appeal lies from them, and they may be recalled and reversed at any time before a final decree is signed and filed. Park v. Johnson, 7 Allen, 378. Perkins v. Fourniquet, 6 How, 206. Fourniquet v. Perkins, 16 How, 82.</p> <p>II. Even in a common law proceeding the court may recommit, for good cause, after acceptance has been noted upon the docket. Such a recommittal is proper where otherwise the party would be sent to a writ of review. Maybury v. Morse, 39 Maine, 105.</p>

Exceptions from the superior court. Search and seizure process under II. S., c. ^7, § 34, which provides that intoxicating liquors kept in the state, intended for unlawful sale, and the vessels containing them, may be taken by an officer, and kept a reasonable time, until he can procure a warrant (for search and seizure.) The officer found the liquor in the possession of the defendant, and in the effort to make the seizure, the vessel was destroyed and the liquor spilled.

Bill in equity. Samuel Chase, late of Portland, died August 9, 1867, leaving a will which was afterwards allowed by the probate court, providing for the disposition of his estate, as follows : I. To Stephen B. Chase, (his son-in-iaw,) $1000. II. To John D. Chase, (his son,) forgiveness of the full amount of his promissory note, for $4706.87, also a gift of $800, to be paid by the executors, as they may find convenient. III.

Exceptions from the superior court. day of the term.) Beplevin for a sewing machine. The writ was returnable at the December term, 1873, (Tuesday, December 2, being the 1st The defendant pleaded in abatement the non-joinder of the husband. To the plea was a verification in the form following: Cumberland, ss., December 1st, 1873. Signed and sworn to before me, Edgar S. Brown, Justice of the Peace. To this plea the plaintiff filed a demurrer, which was joined.

<p>On exceptions from the superior court.</p> <p>Indictment of the defendant for manslaughter of his wife, Margaret E. Pike, at Portland, May, 1871, by seizing and dragging her by the hair of her head, and throwing her with force and violence upon a sofa, giving her mortal wounds, of which she died. The jury, some eight hours after the cause was submitted to them, returned a verdict of guilty. Meanwhile they were called into court, the defendant’s counsel not being present, and listened to the reading by the judge of an opinion of the supreme court of Massachusetts, in Commonwealth v. Tuey, 8 Cush., 1, on the importance of endeavoring to harmonize their views and to agree upon a verdict.</p> <p>The rulings of the court to which the defendant excepted, appear in the opinion.</p>

<p>Bill in equity.</p> <p>The facts were agreed, and are sufficiently stated in the opinion to raise the legal points.</p>

On motion. Assumpsit for alleged pauper supplies. Harriet S. Bay, the alleged pauper,was committed to the Portland workhouse in 1871, under a warrant signed by two overseers of the poor, on an ex parte hearing, on the ground that she was an able bodied, dissolute vagrant, exercising no lawful business and liable to become chargeable to' the city. This action was brought for her board while in the workhouse for two months ending September 17, 1871, at $2.50 per week.

Bill in equity. argued in support of the demurrer to the bill. The bill is founded upon the act approved Feb. 21th, 1872, which took effect on the day of its approval. This statute does not apply to the Boston & Maine Railroad. Their charter to construct a railroad through North Berwick became a law on the date of its approval, February 17th, 1871.

On report from the superior court. Trespass quare clausum fregit. ¡¡¡3P“A. At tbis point was a gate, which the defendant used to enter upon the way in dispute. The plaintiff built a fence just inside of it, so as to prevent the defendant from passing through. The defendant removed it, and this removal is the act complained of as a trespass. The plaintiff claims the right to the exclusive use of the way, denying the defendant’s right to enter upon it at all.

On motion and exceptions from the superior court. Slander for calling the plaintiff’s wife, a whore. The plaintiffs introduced a witness, Leach, who testified to a conversation between Chapman, the defendant, and one Winslow, and that in the summer of 1873, he heard Chapman say something about searching the Brewer House, (occupied by plaintiffs,) for liquors, and that he said he found nothing but whores. The plaintiffs proposed to rest their case.

<p> Attachment, Insolvency. </p> <p>Prior to the passage of the act of 1875, e. 39, an attachment of real estate was dissolved by the death of the debtor and a decree of insolvency; and attachments already dissolved were not restored by that act.</p> <p>An act that should undertake to restore an attachment already dissolved, where the property had been conveyed to a bona fide purchaser, would be unconstitutional and void.</p> <p>E. S., c. 66, §§ 16 and 17, and act of 1875, c. 39, construed.</p>

On exceptions from the superior court. On petition for habeas corpus by the plaintiff, a minor under sentence of confinement in the reform school against the superintendent thereof. The justice of the superior court ruled pro forma, denying the right of the petitioner to discharge, and the petitioner excepted.

<p>On exceptions.</p> <p>Information in the nature of a quo warranto.</p> <p>The ease is presented here on a second bill of exceptions. The case as presented on the first bill of exceptions is found on page 53 of this volume.</p>

On exceptions from tbe superior court. Assumpsit for jewelry in two items, forwarded by tbe plaintiffs from their office in New York, to tbe defendant at Lewiston, tbe first lot charged March 21, 1874, at $31.50, the second, April 1, 1874, at $9.83. The justice presiding who tried tbe cause without a jury, and with right of exception, allowed the second item, but disallowed the first, under a ruling to which the plaintiffs excepted, which is stated in the opinion.

On exceptions from tbe superior court. Assumpsit on account annexed for coal in the spring of 1873, in four items amounting to $35.55. Tbe justice, after tbe evidence for tbe plaintiffs was out, ordered a nonsuit and they excepted.

On exceptions from the superior court. Trespass for filling about two hundred yards of the canal bed immediately below Yaughan’s bridge in 1867. The filling was admitted and justified under authority of the city of Portland in the construction of a street. The justice instructed the jury inter alia: “Whatever diminution there is in the value of the property by reason of the trespass is an element of damage.” .The defendant, the verdict being for the plaintiffs, excepted.

<p>On exceptions and motion from the superior court.</p> <p>Assumpsit on a written guaranty by the defendant of performance of promises of one Cutter, a manufacturer of grindstones, and resident in Nova Scotia, of whom the plaintiff was the selling agent in the United States, three years from March 20, 1867.</p> <p>On the failure of Cutter to fulfill his absolute promise to pay the amount actually due, or his alternative promise to pay what D. W. Fessenden should find due, the plaintiff then resident of Boston, sued out the capias writ in this case against the defendant, described as of Wallace, in the province of Nova Scotia. The plaintiff made the statute oath to authorize the arrest at Portland, May 12, 1874, and on May 19, 1874, the defendant was found in this state, arrested at Portland, and released on bond.</p> <p>At the return term, September, 1874, the defendant pleaded in abatement, because, that at the time when said writ was sued out, and from thence always, until, and at the time, when said Adams made oath, on the 'twelfth day of May, 1874, and during the whole of said day, said Macfarlane was neither a resident of said state, nor within its limits, and never had been a resident of said state, nor had been for a long time, to wit, for two months, within the limits thereof, but was at all times in the Dominion of Canada, and a citizen and resident thereof.</p> <p>. To the ruling of the justice on the plaintiff’s demurrer that the plea was bad, the defendant excepted.</p> <p>At the December term, 1874, there was a trial at which the defense relied on was the fraud of the plaintiff in understating his claim, and where the validity of an award as a measure of dam- ■ ages was contested, because not seasonably made, because not accompanied with a detailed statement, and on the ground that the arbitrator took into account matters not submitted to him.</p> <p>The verdict was for the plaintiff for $13,975.96, (the amount of the award and interest,) which the defendant moved to have set aside. He also filed other exceptions which, together with a more full statement of the facts, appear in the opinion.</p>

On motion and exceptions from the superior court. Assumpsit for a balance of 82,566.90, on account annexed for labor in 1872-3 on the P. & O. P. P. The work was commenced, and a portion of it done under an oral agreement of prices at twenty-five cents a yard for earth excavation, $1.60 for solid rock, eighty cents for loose rock, and eighty cents for rip rap. After settling one month’s estimate, a contract in writing was signed and sealed by the parties, at these prices.

Petition por writ op certiorari, to quash the record of the county commissioners in the matter of the division of the county into jury districts. Shortly before the entry of the petition at the January term of this court, 1875, the records of the county commissioners did not show a compliance with the provisions of B. S., c. 106, §§ 6 and -7.

On report from the superior court. Beplevin for two embossing presses.

<p>On facts agreed.</p> <p>Assumpsit upon a written contract signed by the selectmen and town agent of the defendant town.</p> <p>One Betsey Nichols fell into distress in the town of Industry, and was there supplied by the overseers of the poor of that town as a pauper. Her legal settlement not being there, but being either in Starks or Anson, and uncertain which, and both of these towns refusing to acknowledge the pauper or pay for the supplies, Industry brought suit against both; whereupon the selectmen and town agents of Starks and Industry, without being authorized by any special vote, contracted in writing that the inhabitants of Starks should assume the pending suit between Industry and Anson and pay all taxable costs that Anson might be entitled to recover against Industry in case Anson prevailed. Starks assumed the prosecution of the suit, at the March term of this court in 1871, and Anson pre.vailed, but Starks refused to pay the costs. Thereupon Industry paid the amount of the judgment recovered by Anson, and brought this suit against Starks upon the contract of indemnity.</p> <p>contended, that the town officers had not authority to make the contract, that it was against public policy, illegal on the ground of maintenance, and void for want of consideration.</p>

<p>Trespass. Jurisdiction.</p> <p>Trespass quare clausum may be brought and maintained in the supreme judicial court in the county where the land is situate, though neither the plaintiff nor the defendant resides in that county.</p>

On exceptions. Assumpsit for one sawing machine and fixtures sold and delivered to the defendant, February 18, 1867, at an agreed price of $67.00, on which the plaintiff paid $20.00 down, and on August 19,1867, $15.00, all of which appeared by the plaintiff’s deposition, the defendant offering no evidence. ' The writ was dated August 13, 1873.

<p> Dower. </p> <p>A father died, leaving a widow. His homestead descended to his two sons. In consideration of their having the use and income of the whole estate, the sons, in writing, promised the widow an occupancy of a portion of the premises, and certain farm stock for her use, and a certain yearly payment. Afterwards, one son conveyed to the other. The latter then conveyed the entire premises to his mother by a warrantee deed. Then he died, leaving a widow. In an action of dower by the widow of the son, against the widow of the father, held ; 1. that the agreement between the sons and the mother, did not operate either as an assignment of dower to her, or as a release of dower by her; 2. that the condition of the senior widow, as to her own dower, is the same, essentially, as if it had been specially assigned to her; 3. that her right of dower was not extinguished by merger in the fee conveyed to her by her son; é that she is not estopped by the covenants of warranty in such deed from availing herself of her right of dower in this action, inasmuch as such right was paramount to and independent of the title procured by the deed; 5. that there are two dowers in the estate; the senior widow having one-third of the whole, and the junior widow, one-third of the remaining two-thirds; and that the junior widow is not now, nor will she ho at the death of the senior widow, dowable in any greater proportion thereof.</p>

<p>On exceptions.</p> <p>Trover.</p>

<p> Equity. Trusts. Accounting. </p> <p>A distinct written statement of a trust in lands, its subject and nature, the parties and their relation to it and each other, subscribed by the party to be charged therewith, is sufficient to meet the requirements of E. S., c. 73, § 11, whether addressed to or deposited with the cestui que trust or not, or whether intended when made to be evidence of the trust or not; and will be regarded as creating and declaring a trust that will be valid against the trustee and those claiming under him with notice thereof.</p> <p>It is not necessary to mate the heirs of a deceased trustee parties to a bill in equity to enforce a trust where the laud in which it is claim edhas been duly sold by the administrator of his estate under license from the probate court.</p> <p>ÍT. B. subscribed a valid declaration of a trust in favor of his brother, the plaintiff, in certain lands, and mortgaged them in his lifetime. The female defendant administered on the estate of N. B., had knowledge of the trust, returned the farm in her inventory as subjectto the trust, sold it as administratrix, bought it of the purchaser, and has been in possession ever since with her husband the co-defendant, receiving the rents and profits, and disregarding the plaintiff’s claim'; the plaintiff claims no rights as against the mortgagee, who has never been in possession. Eeld, that he need not make the mortgagee a party under such circumstances, but may have a decree in equity against the respondents, declaring the land while in their hands subject to the trust which he seeks to enforce; and for his share of the rents and profits accrued (to be ascertained by a master unless agreed upon) with costs.</p>

On report. Trespass guare clausum, for breaking and entering the plaintiff’s close in school district No. 8, the village district in Oxford, and erecting a school house thereon, under proceedings which appear in the synopsis of the arguments of counsel, and in the opinion.

<p> Flowage. Mills. Action. </p> <p>A plaintiff whoso land has been overflowed by a reservoir dam erected by the defendants upon their own land, but for the use of a mill not owned by them nor standing upon their land, may maintain an action on the case for the damages caused by such dam. The process by complaint, under K. S., c. 92, § 1, cannot be sustained upon these facts.</p>

Bill in equity inserted in a writ of attachment, dated February 23, 1871, brought to redeem certain described premises from the incumbrances thereon mentioned in the opinion.

<p>Town — disputed lines.</p> <p>The decision of commissioners (appointed under R. S., c. 8, § 43,) in ascertaining, determining and marking upon the face of the earth the common line between towns, is conclusive.</p> <p>By § 44, the compensation of the commissioners is to be apportioned “in equal proportion,” upon the petitioners and respondents as parties, irrespective of the number of towns in either party.</p>

On exceptions. Covenant broken on a contract under seal agreeing to complete a railroad or return bonds given in aid of its completion. Plea, performance with a brief statement alleging a partial performance and waiver as to residue, and a failure of consideration on the ground that the bonds not having been authorized were invalid; and that the contract was void, not having been authorized by the town’s vote.

<p> Indictment. Way. </p> <p>When a fine is imposed upon a town convicted under an indictment for a defective way, a notice of such fine from the clerk to the assessors is not defective merely from an omission to state the term at which such fine was imposed.</p> <p>The statute provision that such fine shall forthwith be certified by the clerk to the assessors is directory, and an omission to comply therewith is not fatal to all prior proceedings.</p> <p>When such fine is imposed upon condition to be complied with at a future time, it is sufficient to notify the assessors “forthwith” after the fine has become absolute by the failure of the town to comply with the condition.</p> <p>A highway in two counties located by the commissioners of both counties acting jointly, cannot be discontinued in whole or in part by one of said boards acting separately.</p>

<p> Watercourse. Evidence. </p> <p>Upon the question as to the floatability of a stream upon which a dam has been built and is standing, it is not competent for a witness to give bis opinion as to the possibility or expense of running logs, at any particular time upon the stream, without using the water raised or kept back by the dam.</p>

<p>On exceptions.</p> <p>Debt on poor debtor’s bond dated August 9,1878, which was not approved by the creditor or by two justices as provided by law. The presiding justice gave the plaintiff permission to make such approval.</p> <p>, The defendant introduced a certificate of discharge dated January 31, 1874, signed, “Charles A. Kimball, trial justice, chosen by Thomas 11. Day, deputy sheriff, for the creditor,” and “A. K. Knapp, trial justice, chosen by the debtor.”</p> <p>contended that this was a statute bond, and further that while certificates of magistrates in cases of this kind have been rightly held to be prim,a facie evidence that the requirements of the statutes have been complied with, yet in this case the creditor having the right to select one of the magistrates, and the certificate being silent as to the absence or presence of the creditor, that the selection of Kim-ball for him by the deputy sheriff, Day, was unauthorized, the poor debtor’s court not legally constituted, their discharge invalid, and that condition of the bond not complied with.</p> <p>contended that this was not a statute bond, not being approved in writing, either at the time of the trial, or even since. The certificate is fair on its face. A magistrate may be chosen by an agent or attorney of the creditor, or in a certain case by an officer. The selection here was by an officer, whose action was in legal presumption authorized.</p>

<p>On report.'</p> <p>Debt, on poor debtor’s bond.</p>

<p>On exceptions.</p> <p>Assumpsit on account annexed for some forty visits of a physician extending over two years, stating a balance of $35.00. It was agreed that the services were rendered, and the prices reasonable, that the defendant was a married woman, owning property in her own right, that the husband went for the plaintiff in the first place, and that the defendant at the first visit promised and agreed to pay for the services which were rendered entirely for herself and her children by her former husband, and were charged to the defendant on the plaintiff’s books. The presiding judge ruled ' the action maintainable, and the defendant exeepted.</p>

<p>On exceptions.</p> <p>Case, alleging substantially that the defendant, on the sixteenth day of June, 1872, at Sanford, &c., was a physician and surgeon employed by the plaintiff, to treat his dislocated and fractured ankle and foot, which the defendant attempted and undertook to do, but did it so negligently, carelessly and unskilfully, that, by want of skill and necessary and proper setting, care and attendance thereto, &c., &c., the said foot and ankle became inflamed, sore and festering for six months, and permanently stiff and fixed in an unnatural position, so as to be almost useless, &c. The declaration contained two counts, both setting out the case with the customary amplifications, but both based upon an asserted failure to exercise ordinary care and skill. Ad damnum, $5000.</p> <p>At the trial the plaintiff and his brother testified that the former thought he had a bad leg, and wanted to go to the Massachusetts General Hospital, but that Dr. Hersom ridiculed the idea, saying he had been a surgeon in the army ; was fully competent; that it was a simple fracture which he could attend to as well as anybody, and would warrant the patient as good a leg as the other, or as it ever was.</p> <p>Among other instructions, the presiding justice gave the following, to which the plaintiff excepted, the verdict having been against him:</p> <p>“The parties might have entered into a contract between themselves. The doctor, on his part, might have engaged that he would treat this patient for a given sum, and entered into a contract that he would bring about a result, and warrant that result. That would have been a contract upon which, if there had been a breach of it on the part of the defendant, the plaintiff might have sustained an action of assumpsit. This is not an action of assumpsit; it is for a tort, and hence you will lay out of mind, in the consideration of this case, so far as the maintaining of the action is concerned, any testimony relating to an alleged warranty on the part of the doctor. So far as that testimony goes, it is only admissible to show, if it was made, what the doctor thought of his own ability.. Whether he made such a conversation with this plaintiff or not has nothing to do with the maintenance of this suit; the plaintiff may not be able to maintain it if he did make such conversation.”</p> <p>contended that if the defendant did not have such skill as he professed to have, he was liable under the circumstances of this case in tort, for not having it; that if he had such skill it was negligence if he did not exercise it, and that the instructions of the court that “whether he made such a conversation or not has nothing to do with the maintenance of this suit,” was erroneous, as the defendant, whatever his pretensions and representations of skill were, would, under such instructions, be held to ordinary skill only.</p>

On exceptions. Complaint for forcible entry and detainer, inserted in a writ of attachment dated January 13, 1873, appealed from tbe municipal court of Biddeford.

On exceptions. This was an appeal from the decision of the county commissioners relating to damages for land of Snow, taken for railroad purposes in North Berwick, brought to this court in accordance with Public Laws of 1873, c. 95. At the trial the plaintiff moved that the jury be permitted to view the premises, which motion the court denied.

On motion and exceptions. Complaint to the municipal court of Biddeford, for selling one pint of intoxicating liquors to Charles T. Goodwin, November 6, 1874, alleging “that the said Horace Wentworth” had “once before been convicted of a single sale under section twenty-eight of chapter twenty-seven of the Bevised Statutes of the state of Maine, in the county of York, to wit: on the twelfth day of October, A. D. 1874, in the municipal court of the city of Biddeford.” At the…

<p>On exceptions.</p> <p>Debt on a judgment of the county commissioners awarding damages to plaintiff for land taken for defendants’ railroad. After the commencement of the plaintiff’s action, the county commissioners undertook to amend their record, which first awarded damages to-the plaintiff alone for land of the homestead of the late Daniel Littlefield, jr., taken by the defendants, by inserting the names of Nancy A. York and of her husband Greorge H. York who were the owners in fee after the life estate of the plaintiff expired, awarding to the three the same amount of damages first awarded to the plaintiff alone, $350. At the trial at the January term, 1875, after the plaintiff had made out a prim,a facie case, the defendants offered a paper from the files of this court entitled the complaint of Mary Littlefield v. Boston dé Maine Bailroad, on an appeal from an award made by said commissioners at their April, 1874, session, and also a copy of the amended record which were admitted subject to the plaintiff’s objection. The presiding justice vxúed proforma that the plaintiff was not entitled to maintain her suit and she excepted.</p>

<p> Judgment. </p> <p>Judgment in a suit against a non-rosident of the state, upon whom no personal service has been made, but whose estate is returned as attached upon the writ, and notice is given by publication, under E. S., c. 81, § 12, is substantially but a judgment m rem, good only against the particular property attached, and of no effect as to the person of the defendant or as to other property.</p> <p>Such a judgment cannot be made the basis of an action of debt, in order to obtain satisfaction of it out of other property than that returned as attached in the original suit.</p>

On exceptions. . Indictment for manslaughter against the defendant for causing the death of his insane wife by negligently exposing her to the inclemency of the weather, insufficiently clad and in a room not sufficiently warmed, from January 18 to February 9, 1875.

<p>On exceptions.</p> <p>Indictment for being a common seller of intoxicating liquors, from April first, 1874, till the finding of the indictment at the September term following; also an indictment for keeping a drinking, house and tippling shop ; two cases covering the same time considered together.</p> <p>Each indictment charged a former conviction and each was supported by similar evidence. The averment of former conviction was in the form following:</p> <p>“And the jurors aforesaid, upon their oath aforesaid, do further present that the said Charles E. Gorham has been once before convicted as a common seller of intoxicating liquors, under section twenty-nine of chapter twenty-seven of the Revised Statutes of said state, in said county of York.”</p> <p>The averment in the second indictment was of the same general form, differing only in the substitution of the words “for keeping a drinking house and tippling shop” in place of the words “as a common seller of intoxicating liquors.”</p> <p>A witness on the part of the government testified that he was acting in the capacity of deputy collector of internal revenue for the first district of Maine, that he had in his hand an alphabetical list of persons who had paid special taxes for the year ending 1875, that it was the original record kept by him for that purpose in tlie office of internal revenue, that it was his duty to keep it and that the name of Charles E. Gorham appeared upon it. The witness then read in answer to a question by the prosecuting officer, by leave of court and against the defendant’s objection, as follows :</p> <p>“Charles E. Gorham, retail liquor dealer, Saco, May 13th, $25. Old Orchard House.” The heading is: — “'Becord of Special Taxes, Eirst District of Maine, from May, 1874, to April 30, 1875.”</p> <p>To sustain the allegation concerning a former conviction, the government officer offered in evidence a copy of a record, to the introduction of which the counsel objected and contended among other things that the count under which it was introduced was so general and informal, that no evidence could be legitimately introduced under it; that it did not allege time or place or court at which such conviction was had, and that no legal conviction could be had under the sectio ntherein referred to; that there was nothing to indicate that the conviction, evidenced by the record offered, was the same referred to in the count; that the count gave the party no notice of the particular offense and conviction therein referred to, and was neither sufficient at common law nor under the chapter referred to. The presiding justice overruled the objection and admitted the record, and in his charge to the jury instructed them that it was sufficient evidence to sustain the allegation in the indictment concerning the prior conviction.</p> <p>The defendant filed a motion in arrest of judgment because of the insufficiency of the count alleging former conviction, which was overruled by the court.</p> <p>To all of which rulings the defendant, the verdict being guilty, excepted.</p>

<p>On exceptions.</p> <p>Writ oe entry.</p> <p>The plaintiff claimed title through deed of his father, Eben Jones, to. himself and two brothers, and through deeds of his brothers to him. The defendant claimed through a levy as judgment creditor against Eben Jones and one Hanscom, the judgment being founded on a note wherein Eben was an accommodation signer for Hanscom. The plaintiff had the-apparent prior record title through a deed which the defendant sought to impeach as a fraud against his future wife when given and as a continuing fraud against subsequent creditors. It appeared by the deposition of Eben, introduced by the defendant, that his deed to his sons made in 1839 was then placed in the hands of one James Jones with directions to keep it till the grantees became of age and then to deliver to them, that he was then owing nothing, that his reason for making the deed was that the mother of the grantees had died and he thought of marrying again and was afraid that his wife outliving him would take the property from the boys.</p> <p>At the trial, the plaintiff, after introducing the deed from his father to himself, offered a deed from his brother John A. Jones, then and at the time of its execution living in Wisconsin; and the witness to whom it was returned testified that he did not know the whereabouts'of the subscribing witnesses or that they were within this state. Thereupon the presiding justice, against the defendant’s objection, ordered the deed to be read on proof of the handwriting of the grantor.</p> <p>The dates of the material transactions are as follows : the deed of 1839 was recorded January 28, 1865 ; the deed of John A. Jones to plaintiff of January 13, 1865, was recorded September 22, 1874. The note was dated October 5, 1858; judgment rendered upon it in favor of plaintiff, May term, 1868. An action of debt on the judgment was brought in August, 1873, and a new judgment recovered September term, 1873, upon which execution issued, and a levy was completed upon the locus January 3,1874, after which plaintiff brought suit. The defendant, the verdict being for the plaintiff, alleged exceptions.</p> <p>contended'in support of his exceptions that the deed from John A. Jones to the plaintiff was improperly received without the production of the subscribing witnesses or proof of their handwriting and without evidence that they were not living and residing within the jurisdiction of the court; that their handwriting should at least have been proved ; that the instructions of the judge, “that if the purpose of Eben Jones in executing the deed of 1839 was to prevent his future' wife to whom he was then engaged from having dower in the estate it would not authorize subsequent creditors to impeach the deed” was erroneous. .By the statute of 13 Eliz., conveyances made to defraud creditors and others were void. The person to whom Eben Jones was engaged had a right of action against him if he declined to marry her. If he married her, he and his estate were bound for her support, and she had the right of dower and other equitable interest in the estate. The conveyance was voluntary and fraudulent as to the future wife of Eben Jones ; if not strictly a creditor she was of the “others” protected by the statute of 13 Eliz. Livermore v. Boutelle, 11 Gray, 217. The conveyance, being both fraudulent and voluntary, was a continuing fraud and void both as to existing and subsequent creditors. There was a secret trust which rendered it void as to subsequent creditors. Sail v. Sands, 52 Maine, 355. The deed being voluntary and not being delivered or recorded until after the debt to the defendant was incurred, credit being given upon the possession and apparent ownership and record title, it had, as against the defendant, no effect until delivery and registration ; the defendant is to be treated as a prior creditor. Smith v. Lowell, 6 N. II., 67.. Paul v. Groolcer, 8 N. H., 288.</p>

<p> Husband and wife. Trial. </p> <p>The law will not imply a promise on the part of a married woman to pay for materials bought by her husband and used in the erection of buildings upon her land from the mere fact of the contemporaneous knowledge of such purchase and of the use to which the materials were put.</p> <p>It was a question for the jury whether the husband was or was not acting as the agent of the wife in making such purchase and whether ho had authority to purchase upon her credit; and their finding that the contract was not hors but his, is not so manifestly against the evidence as to justify the law court in setting it aside.</p> <p>When the husband is justly indebted to the wife he may without fraud prefer her to his other creditors and may make a valid appropriation of his property to pay her claim even though he is thereby deprived of the means to pay other debts.</p>

<p>Contract. Intoxicating liquors. Words — “dealer” defined.</p> <p>Where a plaintiff sues upon an account annexed containing items of a legal and items of an illegal character, each class of ■which would sustain an action by itself, but for the illegality, he cannot be debarred from recovering for such items as are legal, merely because the two classes of items are embraced in the same account and sued for in the same suit.</p> <p>A single sale of all the merchandise which a person has on hand, who is going out of a business formerly carried on by him, does not constitute the seller a “dealer” within the meaning of the revenue laws of the United States which require a license for making sales.</p> <p>A plaintiff cannot recover for his personal services, portions of which were rendered in an employment of selling liquors unlawfully, the contract of service being an entirety; but he is not to be prevented from recovering for his services contracted to be rendered in a lawful employment, merely because, during the term of his employment, he occasionally assisted his employer in such unlawful business gratuitously, not expecting or seeking any compensation therefor.</p>

On motion. Case for injuries received from defective highway, August 31, 1873. While the plaintiff was in the day time, in an open wagon attached to a single horse, driven by her daughter fifteen years of age, one of the wheels in descending a hill struck the point of a ledge projecting into the traveled highway. The plaintiff was thereby thrown from the wagon and her arm broken.

<p>Bill in equity to redeem real estate under mortgage.</p> <p>In defense it was claimed that the plaintiff was not the owner of the right to redeem. It appeared in evidence that the wife of Aaron M. Mellen was once the owner of the equity and that when upon her death-bed she signed a writing relating to her interest in the land. The plaintiff claimed that it was a deed to her husband of the equity of redemption, which interest was afterwards sold on an execution against him, and assigned by the purchaser to the plaintiff. The defendant contended that the writing in question was not a deed to her husband, but a will to her children. To show the character of the writing, the plaintiff took the testimony of the scrivener, which was objected to on the ground that the loss of the writing was not first proved. The defendant after-wards examined the husband, who, on cross-examination, testified that the paper signed by his wife was left in her sick-room, that he supposed it was a will, that it was not delivered to him, that he made search for it some months after his wife’s death, but was unable to find it.</p>

On exceptions. Petition for writ of certiorari. The petition set out that on December 29, 1871, the county commissioners of York county upon the application of the Boston & Maine Railroad adjudged and determined the conditions and manner of the crossings in, upon, and over, certain ways in the town of North Berwick, alleged illegalities, and prayed that a writ of certiorari might be issued and the records and proceedings quashed.

<p> Trial justice. Jurisdiction. </p> <p>Trial justices do not have jurisdiction of the offenses described in B. S., c. 17, § 1, which declares that all places used as houses of ill-fame, resorted to for lewdness or gambling, for the illegal sale or keeping of intoxicating liquors, are common nuisances. They may cause such offenders to be arrested and require them to recognize for their appearance at a higher court; but they cannot pass sentence upon them.</p>

<p> Trustee process. Assignment. </p> <p>The true consideration of an assignment of the property of a debtor for the benefit of his creditors is the agreement of the assignee to perform the trusts imposed upon Mm by the assignment; and that, in contemplation of law, constitutes a full and complete consideration.</p> <p>The statute, R. S., c. TO, § 2, which declares that the assignor shall make oath to the truth of the assignment, does not prescribe any particular form- of oath. Held, that an oath and certificate in the form following were sufficient: “I, L. C., do solemnly swear that I have placed and assigned all my property of every description in the hands of said A. B., to be divided among all my creditors who shall become parties to said assignment within three months from the date thereof, in proportion to their respective claims. (Signed) L. O. York, ss. (date.) Personally appeared L. O. and made oath that the above affidavit by him subscribed is true. Before me, W. M., justice of the peace.”</p> <p>The statute, R. S.,.c. TO, § 3, requiring the account of the assignee to be rendered to the judge of probate witMn six months, does not require it to be allowed within that time. Thus, where the assignment was dated October 16,18T2, and the assignee rendered his account to the judge of probate on the first day of the following April; held, that the fact that the account was not allowed till the May term of Ms court, was unimportant.</p> <p>Under the statute, R. S., c. TO, § T, which provides "that the assignee may be trusteed after the lapse of eighteen months from the assignment, or two years, if the probate court extend the time so long, in favor of a creditor who has not become a party to the assignment, the assignee will not be holden as trustee for more than the excess of the estate in his hands after the payment of the debts of the creditors who have become parties to the assignment, and the lawful expenses.</p> <p>The clause in an assignment for the benefit of creditors, “being responsible only for his actual receipts or willful defaults,” annexed to the agreement of the assignee accepting the trust, will not vitiate the assignment. It does not release the assignee from the use of due diligence to collect the debts due to the assignor.</p>

<p> Trustee process. Words. </p> <p>The words “effects and credits” as used in our trustee writs^re sufficient to authorize the attachment of a legacy in the hands of an executor or administrator. R. S. c., 86, § 86, construed.</p>

On exceptions. Assumpsit for wages. The action was referred in this court to a referee to be determined upon legal principles, who at… Held: that no time being expressly appointed the partnership commenced from the date of the agreement.” Holroyd, J., in that case said: “Whatever may have been the intent of the parties which 1 collect to have been that the instrument should take effect immediately, at all events, the law gives it that effect, no time for its commencement…

On exceptions and motion, argued May term, 1871, and re-argued May term, 1874. Held: that if a promissory note is made payable to the order of A. B., it must be indorsed by A. B. to himself, to enable him to maintain an action. IY.

On exceptions and motion. Case for killing the plaintiff’s horse at Hallowell, in June, 1871, by running upon him with an engine. At the trial, March term, 1871, the verdict was for the plaintiff, with damages assessed at $1000. The defendants moved to have the verdict set aside as against law and evidence, and filed exceptions. The plaintiff was a third owner in common of the oil cloth factory, and the lot connected therewith which extended on both sides of the railroad.

<p> JSguiiy. Infancy. </p> <p>Where a bill in equity is brought to enforce a trust, the trustee, though a min- or, must be made a party.</p> <p>It cannot be maintained against the guardian of such minor alone.</p>

On exceptions. Assumpsit for money had and received, evidenced by an order ' *' for $371, on the treasurer of Unity plantation, dated March 22, 1865, signed “Edwin E. Hall,” and “Gilbert Libbey,… Held: this plantation had the powers contained in B. S. 1857, c. 3, §§ 70 to 75 inclusive, and no more. There was no power to raise money, or to assess, or to elect a treasurer or collector. There ^was no treasury.

<p>In EQUITY.</p> <p>The bill alleges, iu substance, that one Harvey Cram, in 1854, bought for plaintiff, with plaintiff’s money, a lot of land, taking the deed in his own name, and recently died testate, never having-parted with the legal title, leaving a widow his executrix, who has since married, and an infant daughter, and that the possession of the land has ever remained in the plaintiff. The executrix and her present husband, as guardian of her infant daughter, (but not the infant herself,) are made parties to this bill, which prays, among other things, that Joseph E. Bean, in his capacity as guardian, may be required to execute the resulting trust in favor of the plaintiff, and convey to him by deed of quitclaim the right, title and interest which Harvey Cram acquired and which the infant daughter has as his heir.</p> <p>A trust results by implication of law in favor of one who has furnished his agent with money to purchase for him real estate, if the agent takes the conveyance to himself; and on the death of jthe agent his heirs may be compelled to release to the equitable owner. Brown v. Dwelley, 45 Maine, 52.</p> <p>Such a trust is not within the statute of frauds, and need not be declared in writing.</p>

On motion.' Assumpsit for money had and received. The plaintiff in 1868, and previously, was associated with Charles E. Bailey, the intestate, in purchasing and selling hay, Bailey assisting in the purchases in Maine, and «the plaintiff either alone or as a member of the firm of himself and company, attending to the sales in Massachusetts, and sharing the profits with Bailey.

<p>On exceptions.</p> <p>Case under B. S., c. 113, § 51, for hindering and delaying cred.itors, alleging that on March 6, 1868, one Henry S. Hagar, being indebted to the plaintiffs in the sum of $4,388.38, and possessed of real and personal estate, of the value of $20,000, with the fraudulent intent, &c., transferred it all to the defendant without adequate or valid consideration, and that she participated in the fraud.</p> <p>The defendant was administratrix of the estate of her husband, Marshall S. Hagar. Henry S. Hagar, their son, was largely indebted to the estate, the evidence tending to show, to nearly the amount of $100,000. He was also largely indebted to these plaintiffs and others. The day before his death he transferred by conveyances absolute in form all his real and personal property to the defendant, in consideration of his indebtedness to her, and she accepted the conveyances and caused them to be recorded.</p> <p>When the plaintiff stopped, the foregoing facts appearing, the presiding justice ordered a nonsuit. To this order the plaintiff excepted.</p> <p>Whether conveyances are made and accepted to hinder or delay creditors, is a question of fact for the jury. Hall v. Sands, 52 Maine, 355.</p> <p>Whether the grantee derives from the conveyance any benefit or not, if she took it to keep the property from seizure upon execution, she is liable under the statute. Aiken v. Hilburne, 27 Maine, 252.</p> <p>The object of the statute is to afford a remedy against any one to whom the property of his debtor has been transferred for the purpose of securing it from creditors and from seizure upon execution. Spaulding v. Fisher, 57 Maine, éll.</p> <p>Ey accepting the deed and bills of sale and putting them on record, she became liable in the same manner as though she had actually participated in the transfer in its inception. Bank v. Outler, 49 Maine, 315.</p> <p>Facts and circumstances clearly indicating an intention on the part of both vendor and vendee to place the property beyond the reach of legal process, constitute legal fraud. Wheelden v. Wilson, 44 Maine, 11.</p> <p>The giving of a bill of sale absolute on its face, but intended for collateral security only, though not conclusive, is a circumstance tending to prove fraud. Emmons v. Bradley, 56 Maine, 333. The debtor notoriously and deeply insolvent conveys all his attachable property without adequate consideration. These circumstances are recognized badges of fraud. Oxmn et al. v. Butler, 18 Pick., 248. Rollins v. Mooers, 25 Maine, 192.</p> <p>As no testimony was introduced except by the plaintiffs, the nonsuit was properly ordered unless the evidence would authorize a jury to find a verdict for the plaintiff. Sanford v. Emery, 2 Maine, 5. Perley v. Little, 3 Maine, 97. Pray v. Garcelon, 17 Maine, 145. Head v. Sleeper, 20 Maine, 314. Lyon v. Sibley, 32 Maine, 576.</p> <p>A creditor may lawfully take payment from his debtor of his own demand, although he knows that the debtor intends thereby to defraud other creditors. Gray v. St. John, 35 111., 222. Llessing v. McCloskey, 37 111., 341.</p> <p>A debtor in failing circumstances has an undoubted right to prefer any creditor, as well a parent or other near relative as a stranger; and if the debt were bona fide due, the strongest considerations of duty may prompt a son to prefer the claim of a widowed mother over the claims of mere strangers. Coley v. Coley, 1 McCarter, (N. J.,) 350.</p>

On report. Indictment for being a common innholder without a license, in the city of Gardiner, during September, 1871-, under It. S., c. 27, §§ 12, 13, which provide a maximum penalty of fifty dollars to be recovered by complaint, indictment, or action of debt, for the use of the town where the offense is committed. The indictment in this case alleged the Offense in Gardiner, but did not state to whom the penalty was to go.

On exceptions. Assumpsit on a promissory note to which no defense was made. The contention was on the question whether the bank was chargeable as trustee. The presiding justice ruled that it was not holden,. and the plaintiff excepted.

On exceptions. Assumpsit wherein the principal defendant was defaulted before the trial justice, and the case brought to the supreme judicial court by appeal of the trustee. The trustee on the return day, Septem her 12, 1874:, the case finds, made a verbal disclosure, and the case was continued to September 19th, when the trustee again appeared and contended that there was no legal disclosure on the return day and was defaulted by the trial justice.

<p>On facts agreed.</p> <p>Assumpsit, on a policy of insurance against fire.</p> <p>The .plaintiff, July 1, 1869, made written application to the defendant company, for insurance upon his dwelling house and outbuildings, valued at $800, and upon his two barns valued at $300 each; and the same day received from the company a policy running four years, for $500 on his dwelling house and adjoining buildings, and for $50 upon each of his barns.</p> <p>On January 1, 1873, the plaintiff applied in writing to the Hartford Fire Insurance Company for insurance upon the same and other property, (representing that there was no insurance thereon ;) upon house, ell and shed, valued at $2000, upon stable valued at $800, upon furniture and apparel valued at $1000 and upon organ valued at $125 ; and upon the same day received from the Hartford Company a policy for $1300 on his house, ell and shed, for $500 on household furniture and apparel, $100 on organ, and $200 on barn.</p> <p>The first policy contained this provision: “And if the said insured or his assigns shall hereafter make any other insurance on the same property, and shall not with all reasonable diligence, give notice thereof to this company, and have the same indorsed on this instrument, or otherwise acknowledged by them in writing, this policy shall cease and be of no effect,” &c.</p> <p>The Hartford policy contained a provision of forfeiture, “if the assured shall have, or shall hereafter make, any other insurance on the property hereby insured, whether such other insurance is valid or invalid, without the consent of the company written hereon.”</p> <p>Neither of the companies received the notice, or gave the consent provided in the policies.</p> <p>June 17, 1873, the “house and outbuildings” described in the policies, were suddenly destroyed by fire.</p> <p>The plaintiff brought suit upon the Hartford policy, which was entered March term, 1871, answered to by the company, and settled in July, 1871, for $1000 paid by the company to the plaintiff. Whereupon the Hartford policy was canceled and surrendered, and the action entered neither party at the September term, 1871.</p> <p>The writ in this case was dated August 10, 1871; the plea was the general issue, and the case was made law on facts agreed, substantially as stated above.</p> <p>I. The* cases Jackson v. Mass. Mut. Fire Ins. Co., 23 Pick., 118 ; Olark v. New England Mut. Fire Ins. Go., -6 Cush., 312; and Hardy v. Union Mut. Fire Ins. Go., 1 Allen, 217 ; which establish in Massachusetts, the rule of law, that to avoid a policy containing a clause against subsequent insurance without' notice, the subsequent insurance must be by a valid and legal policy, are in direct conflict with Carpenter v. Providence Washington Ins» Go., 16 Pet., 195 ; and Bigler v. New York Ins. Go., 22 N. Y., 102. And that rule has received no countenance in this state except in the dictum of Judge Tenney, in Philbrook v. New England Mut. Fire Ins. Go., 37 Maine, 137. Its adoption in this state is still an open question; and in view of the fraudulent practices to which it is likely to lead, it is respectfully submitted that it is good law, as well as the safer policy, to hold, with the supreme court of the United States, that if the second policy, at the time it was made, was treated by all the parties thereto as a valid and subsisting policy, and has never in fact been avoided, then the; policy declared on is void.</p> <p>II. But however the court might decide the foregoing proposition, the plaintiff, in ■ this case by bringing suit upon the second policy, and collecting it, is now concluded, upon the principle of election, from denying its validity. “The general rule is, that a person cannot accept and reject the same instrument.” 2 Story’s Eq. Jur., § 1077, n. 2. “This same rule of election applies to every species of right.” Weeks v. Patten, 18 Maine, 42. It is analogous to estoppel, and constitutes a rule of law. In order to enable a court of law to enforce the principle, the party must have acted upon an instrument in such a manner as to be deemed concluded by what he has done, that is to have elected. 2 Story’s Eq. Jur., § 1080. Smith v. Smith, 14 Gray, 532. Weeks v. Patten, 18 Maine, 42. Smith v. Guild, 34 Maine, 443.</p> <p>The oníy cases to be found which sustain such a proposition are Philbrook v. JP. E. Mut. Fire Ins. Go., 37 Maine, 137, where the abovementioned dictum stands absolutely unsupported by authority, and Hardy v. Union Mut. Fire Ins. Go., 4 Allen, 217, which is based solely upon the dictum. In neither of these cases, however, did the fraud of over-insurance, which is a distinctive feature of this case, exist. And in the latter case the court say, that the doctrine of estoppel does not apply, because the defendants “have not been injuriously affected” by the second policy. But in the case at bar the policy contains another clause, by the terms of which the plaintiff could only recover of defendants the proportion of the loss sustained, which the amount insured by their policy bore to the whole amount insured; so that defendants are injuriously affected by the second policy, first, by being deprived of the opportunity to cancel their policy, if they so elected, or, second, by being deprived of the benefit of the reduction of plaintiff’s claim in the proportion above stated.</p>

On report. Assumpsit for $2,975, dividends on five shares of the capital stock of the defendant corporation. Flea, the general issue.

On EXCEPTIONS. Assumpsit, on a life insurance policy issued by the defendant company, April 25, 1873, on the joint lives of the plaintiff and his wife, for the sum of $1,000, payable to the survivor on the death of either.

On motion. Assumpsit on a policy of insurance. E. K. Alexander was the owner of one-fourth of the schooner Abby Brackett. Held: “that it was in conformity with the contract that the plaintiff should maintain the action in his own name, and it is agreeable to usage that he should do so in policies of this form.” On a policy in the name of W., for whom it may concern, the concern being himself and another, an action may be by W. alone. 2 Phillips on Ins., §…

<p>Bill in equity to enforce a resulting trust.</p>

On report. Case, setting out that the small pox broke out in Yinalhaven in the fall of 1872 ; that it became the duty of the town to provide a pest house and medical attendance, which they performed employing one Conway to act as nurse; that after Conway had been for three weeks exposed to the disorder he was allowed by the physician to leave the pest house and return to the dwelling of the plaintiffs’ with whom he had before resided; that, relying upon the doctor’s skill…

On exceptions. Assumpsit, on account annexed for a lot of land.

On exceptions. Libel for divorce by the wife, containing a prayer for alimony and for provision for the support of Elleu C. Call a minor child of the parties. A divorce a vinculo was decreed in favor of the libelant, and the custody of the child awarded to her, at the October term, 1874.

<p> Beferee. Trial. </p> <p>When a cause is referred to he decided upon legal principles, and the referee neither reports nor is requested to report the facts or the questions of law arising thereon, his award is final.</p>

On exceptions and motion. Assumpsit by the plaintiff as administrator of the estate of William Woodman, deceased, to recover the sum of $700, which he alleged was given to the defendant by Woodman, when he was insolvent. The writ was dated February 16, 1869. The plea was the general issue.

On exceptions. I Case, under B. S. 1857, c. 123, § 8, for three-fourths of the value of a porgy oil factory situated in Bristol alleged to have been destroyed by a mob, April 29, 1868. The plea was not guilty.

On exceptions. Bill in equity, praying for relief, and that. the plaintiffs’ title by levy to certain real estate may be decreed good and valid. The following facts appear: June 5, 1864, the plaintiffs sued out a writ against William J. Perkins for $500, on account annexed that accrued in 1856 for earnings of a ship. June 25, 1864, all the debtor’s interest in real estate was attached on that writ, and on the 28th of June, 1864, within five days, the attachment was recorded.

<p> Executors and administrators. Probate practice. </p> <p>A decree of a court of probate duly allowing tbe final account of an executor cannot be impeached in an action at law against the executor, to recover a debt due from the estate.</p> <p>Any objection to such an account should be first made in the probate court, and can only be brought into the supreme court by appeal.</p> <p>The plaintiff offered to prove that testator, husband of the executrix, after giving the notes in suit, conveyed a valuable farm to her for the purpose of defrauding creditors; that she took the conveyance for that purpose, and continued to hold under it. Held, inadmissible to impeach the decree of the court of probate in the allowance of a final account; that such a decree was in the nature of a judgment, and could not be collaterally attacked.</p>

On' exceptions, and motion to set aside the verdict as against evidence,its weight, and because the damages($850)'were excessive. Case, founded on the negligence of the defendants in so making a county road ordered by the county commissioners, and changing the current of the stream that it washed out the abutment made by the plaintiffs on their side of the same county road.

On exceptions. Complaint, for search and seizure. The presiding justice, at the trial, having instructed the jury, in substance, that it was the duty of the state to satisfy their minds, beyond a reasonable doubt, of the guilt of the accused, and that unless his guilt was thus established, it was their duty to acquit him, the counsel for the defendant requested the further instruction, that, “if from the evidence there was any other hypothesis than the guilt of the accused,…

<p>ÜN EXCEPTIONS.</p> <p>Complaint, for search and seizure.</p> <p>A verdict had been rendered against the defendant at a former term, which was set aside, and a new trial granted. At the second trial, the government, to impeach one of the defendant’s witnesses, offered to show that he testified differently at the former trial, by a witness who was present and heard him testify. The testimony of the impeaching witness was objected to on the ground that it was not the best evidence; that the legally appointed stenographer who took short-hand notes of the testimony could give better evidence. The objection was overruled, and the impeaching witness allowed to testify. The defendant excepted. A second exception was also taken which sufficiently appears by the opinion.</p>

On exceptions. Complaint, for search and seizure of intoxicating liquors, on appeal from the municipal court of Bath. On the trial.of the appeal, the government introduced the judge of the municipal court as a witness, who was allowed, against objection, for substance and form, to read his docket entry of a former conviction of respondent for a similar offense.

On exceptions. Debt on a bond conditioned for the faithful administration of the, estate of Jonathan H. Crooker, of whom the plaintiffs in interest are the legal heirs. To the plea of performance there was a reply assigning breaches and a traverse thereto by the defendants which the plaintiff joined. After the evidence for the plaintiff was out, the presiding justice ordered a nonsuit, and the plaintiff alleged exceptions.

On report. Debt on a judgment recovered August term 1868, for $680 debt or damage and costs $121.75 ; and in a second count debt on another judgment for $24.53 recovered December term, 1871.

On exceptions. Assumpsit, for money had and received. The plaintiff was owner of a vessel and cargo in Bath. The master sailed the vessel on shares, three-tenths of what the cargo sold, for being his share of the freight money, the residue belonging to the owner. The defendant, a creditor of the master sued him in Boston, and trusteed the purchasers of the cargo.

<p> Mortgage. Sale. </p> <p>Any -written instrument, whereby the title of personal property is convoyed to a creditor of the owner for the purpose of securing payment of a debt of more than thirty dollars, designed and intended by the parties to it to operate as a mortgage, must be recorded in pursuance of the statute, (It. S., c. 91, § 1,) whether the condition thereof, as arranged and understood between the parties, is or is not expressed therein, in order to make it valid, as against any person except the parties thereto, unless the possession of the property conveyed is delivered to, and retained by, the mortgagee.</p> <p>If the intention of the parties that the instrument shall operate as a mortgage, is declared or conceded, it brings the instrument within the purview of the statute requiring such mortgages to be recorded, however imperfect it may be in its form.</p> <p>Ordinarily a mere receipted bill of parcels or bill of sale, in which no condition is expressed, but which the vendee named therein receives solely for the purpose of securing a debt due from the vendor, will be regarded as evidence of a pledge, of which the pledgee must retain possession in order to make it available against an attaching creditor or subsequent bona fide purchaser.</p> <p>In either view, if not recorded, it cannot be valid against a bona fide purchaser from the owner in possession.</p>

On AGREED STATEMENT. Assumpsit against David S. Knowles, Charles H. Morse and Lowell Knowles. Lowell Knowles alone defended.

Bill in equity. On August 20, 1864, Judah McClellan died intestate leaving a j widow, seven sons and two daughters, and two granddaughters, children of a deceased sister. The heirs entered into negotiations for dividing the estate without probate administration.

On report Assumpsit on a promissory note of the tenor following: “$4436.89. For value received we promise to pay S. W. Hap-good or order, forty-four hundred and thirty-six dollars and eighty-nine cents on demand and interest. North Anson, August 31, 1861. (Signed,) John Watson, jr., & Co.” There were indorsements of interest $673.36 to date, (September 1, 1862,). and twenty-four [hundred] and sixty-three dollars, and 44-100, January 31, 1863.

<p>On exceptions.</p> <p>Indictment, setting out the existence of a toll bridge across the Kennebec river between the towns of Anson and Madison, constituting a part of the public highway in and between these towns; that the toll bridge was the property of the proprietors of the Norridgewock Falls Bridge Corporation, created by act of the legislature of this state, passed February'9, 1827; and that the said company were bound by law to maintain and keep it in repair ; and alleging that it was out of repair, and that the defendants neglected and refused to repair.</p> <p>Within two years after the charter, the defendants built their bridge in pursuance thereof, from the Anson shore to an island in Madison, (59 Maine, p. 540,) on the western end of which they erected their toll house. Between the island and the Madison main shore, (to the east,) through a narrow channel about two rods in width, a part of the waters of the Kennebec flowed. S. C., p. 540.</p> <p>A question was afterwards raised as to whose duty it was to build, maintain and keep in repair the short bridge. It was first built by the defendants.</p> <p>• In 1845, the county commissioners, on appeal, located a town way across the island and eastern channel. In 1846, on petition therefor, they located a highway over the town way, and corresponding thereto, and to the way originally built by the bridge proprietors, and continued the same “through Madison and a part of Cornville and Skowhegan as prayed for.”</p> <p>It is admitted that the short bridge was carried away by the great freshet in the fall of 1869, and has not been rebuilt.</p> <p>An indictment was sustained against the inhabitants of Madison, for the same defective highway alleged in this indictment. (63 Maine, 546.)</p> <p>At the trial, the defendants requested the presiding justice to instr uct the jury that the laying out of the highway over the bridge by the county commissioners, would constitute a defense to this indictment. But the presiding justice, for the purpose of the trial, and of presenting the legal question raised to the full court, declined to give the requested instruction, but on the contrary instructed the jury that it was no defense; and the defendants, the verdict being guilty, alleged exceptions.</p>

On exceptions and motion. Assumpsit, on the money counts. “Also, for that the said defendant, at said Skowhegan, on the sixteenth day of March, A. D. 1874, in consideration that the said plaintiff would, and then and there did, pass into the hands of, and deposit with, the said defendant, the sum of thirty dollars, then and there promised the plaintiff to return and pay said sum of thirty dollars to him on demand, if neither Y. K,. Tuttle nor E. II.

On exceptions. Debt, brought to recover for the services and expenses of the 1 plaintiff in conveying to the insane hospital at Augusta, one Charles McCann, a person adjudged to be insane by two justices of the peace and quorum, by virtue of R. S., c. 143, § 15. The defendants pleaded that they did not owe.

On exceptions and motions of tbe plaintiff to have the verdict 6f) B.,.j set aside as against evidence, and for a new trial on the ground of gy jy® newly discovered evidence. Case for unauthorized use of water of the Meduxnekeag creek. The plaintiff had title to a saw mill privilege with a right of water on the east side, the defendants to a grist mill privilege with right of water on the west side.

<p>Review, — upon condition.</p> <p>A review may be granted to a party who lias become insane and been placed under guardianship, upon the condition that the petitioner will stipulate that no objection shall bo made to the respondent’s testifying generally upon the trial of the case in review. And when the review is granted upon such stipulation made, it is binding upon the legal representative of the petitioner after his decease.</p>

<p>Trustee process. Words — due absolutely, and not on a contingency.</p> <p>When labor contracted for is performed, and there remains only to fix its amount and value, tbe fact, that by'the contract the payment is to be made on an estimate and certificate of a third person, does not constitute a contingency within the meaning of the statute. R. S., c. 86, § 55.</p> <p>The phrase, “due absolutely and not on a contingency,” is applicable to the past earnings of a party payable in the future on the estimate and certificate of . a third person.</p> <p>Thus : the defendant wrought for the railroad company to the end of May. By the contract, he was to be paid on the middle of June, for the work of May, on the estimate and certificate of the company’s engineer. On June áth the company were served with the plaintiffs’ summons to answer as the trustees of G-owen; the estimate and certificate were completed on June 10th. Held, 1, that the company were chargeable as trustees; 2, that payment was due absolutely and not on a contingency; 3, that the amount due on June 1st was not payable till the 15th. R. S., c. 80, § 61.</p>

On report. Assumpsit, brought on a paper'signed by the defendant which will be found stated in the opinion at length. After the evidence was out, the case was made law on report. If, in the opinion of the court, the action was not maintainable, a nonsuit was to be ordered, otherwise, the action to stand for trial. The facts, sufficient to raise the legal questions, appear in the opinion.

On eaots aoreed. Case, commenced September 25, 1873, against the defendants, as general owners of the schooner “Midnight,” in favor of the plaintiffs, as general owners of the schooner “Thames.” It is agreed that both vessels were sailed on shares by their respective masters, and under their control, as is customary in such cases in this state; and the question submitted is whether, under such circumstances, an action for collision by the general owners of the “Thames,”…

<p>On report.</p> <p>Case, for an alleged injury to the female plaintiff by means of a defect in the highway, stated in the report thus :</p> <p>“She was riding with a young woman in a wagon, and-came upon a place where a large rock had been raised by the defendants from the ground, and remained within the traveled way, in such a position as to be calculated to frighten a horse such as the parties were then driving, going within a rod or so of the obstruction. The horse being frightened, and unwilling to pass the obstrm, tion, the young woman got out and took the horse by the head, aud while the plaintiff was getting out, the horse started and threw her from, the wagon, and she was injured thereby.</p> <p>No question is made but that the rock was a defect in the highway, which the defendants were bound to keep in repair, or about notice; and it is admitted that the plaintiff and the person with her were in the use of common care and prudence in all that was done by them at the time; and no question is made as to the suitableness of the horse and team used at the time.</p> <p>The plaintiff contends that she was getting out of the wagon to save herself from the danger of injury by an upset liable to be occasioned by the horse being restless and unmanageable.</p> <p>The defendants contend that the plaintiff was in the act of getting out of the wagon, in order to have the horse led toward the obstruction, and that the horse was not at that moment unmanageable, although he made a step which threw the plaintiff down as she was attempting to get out.</p> <p>It is admitted that neither the horse nor the wagon came in actual contact with the rock.</p> <p>If the action is not maintainable upon the facts as contended for by the plaintiffs, because there was no actual collision or contact with the rock, then a nonsuit is to be entered.</p> <p>. But if an action is maintainable upon the facts as contended for by the plaintiffs, and not maintainable, provided the facts as contended for by the defendants are true, then the action is to stand for trial, in order to submit the facts in dispute to a jury.</p> <p>And if the action is maintainable upon the facts, as the defendants claim them to be, then a default is to be entered, and the damages to be assessed by a jury, unless a reference or a commission shall be agreed upon.”</p> <p>' The plaintiffs’ right to recover is not affected by his or her having contributed to the injury unless he or she was in fault in so doing. Shear. & Ned. on Neg., p. 31, and cases there cited. It is not necessary that there should be actual contact of the horse or carriage with the obstruction. Lund et ux. v. Tyngsboro, 11 Gusli., 563. Objects in a highway likely to frighten horses of ordinary gentleness, may be nuisances. Ayer v. Norwich, 39 Gonn., 376. DimocTc v. Suffield, 30 Oonn., 129. Objects within the limits of a highway, which in their nature are calculated to frighten horses of ordinary gentleness, may be nuisances which make the highway defective within the meaning of the statute. Morse v. Richmond, 41 Yt., 435. Bartlett v. Hooksett, 48 N. IL, 18. Foshay v. Glen Haven, 25 Wis., 288, (3 Am. Rep., 73.) Shear. & Ked. on Neg., § 388, and decisions referred to. It is there said: “Some recent decisions in Massachusetts tend to a different conclusion, but they stand alone, and their reasoning does not enforce our conviction of their soundness.”</p> <p>relied upon these three propositions.</p> <p>I. The rock, in its quality as a defect in the road, did not frighten the horse, but the fright was by some other quality of the rock.</p> <p>II. Upon the defendants’ theory, the rock was not the proximate cause, and the plaintiffs must disprove the defendants’ theory before they can recover.</p> <p>III. Upon the defendants’ theory, the rock was not any cause at all, and the plaintiffs must disprove this theory before going on.</p> <p>The statute imposing liability upon towns is penal, as well as remedial, and is to be construed strictly. Moore v. Abbot, 32 Maine, 46. Moulton v. Sanford, 51 Maine, 127. The defect or want of repair is either inert matter left incumbering the street upon or over it, or structural defects endangering the public travel. An object frightening horses is not necessarily and ipso facto a defect, within the meaning of the statute. Davis v. Bangor, 42 Maine, 522. The fact that the horse was frightened at the appearance of an object does not render that object a defect within the meaning of the statute. Merrill v. Hampden, 26 Maine', 234. The reported cases in this state are cases of actual contact. So also in these cases in Massachusetts. Keith v. Easton, 2 Allen, 552. Kingsbury v. Dedham, 13 Allen, 186. Though the object frightening the horse was also an obstruction, yet if its quality as an obstruction did not frighten the liorso, the town is not liable. Cook v. Charlestown, 98 Mass.,’ 80. Cook v. Montague, 115 Mass., 571. In Lund v. Tyngsboro, the plaintiff jumped to avoid a collision ; that is, to avoid the thing as a defect, an obstacle to travel.</p> <p>The rock was perhaps the remote cause of the injury, but it was not the proximate cause. Bigelow v. Beed, 51 Maine, 325. The maxim of proximate cause is applied more rigorously in statute torts than in common law torts. Moore v. Abbot, 32 Maine, 46. Moulton v. Sanford, 51 Maine, 127. McDonald v. Snelling, 14 Allen, 290. The obstruction must be something more than the occasion, it must be the cause. Livie v. Janson, 12 East, 648. Smith v. Lee, 14 Gray, 473. Jenks v. Wilbraham, 11 Gray, 142. Marble v. Worcester, 4 Gray, 395. Libbey v. Green-bush, 20 Maine, 47.</p>

On Exceptions. On motion of the defendant’s counsel, a commissioner was appointed by the court to take the disclosure of the defendant, under the 8th section of the 113th chapter of the revised statutes. The parties appeared before the commissioner who administered the oath to the defendant, and proceeded to take his disclosure; the commissioner himself not being sworn.

On' exceptions. Libel under the search and seizure statute; and the controversy was about four cases of imported whisky. It was admitted by the state, that, at the time of the seizure, they were, in the original packages unbroken, as imported, and were lawfully imported by the claimant; and were then in his possession, as his property, and had never been sold by him.

On report. Assumpsit, on account annexed to the writ which is dated November 1,1872, containing nine items for flowing land in Danforth for nine years, from A. D. 1863, to A. D. 1871, both inclusive, at $75 a year with another item for costs of court in complaint for flowage $72.17, in all $717.17. There were other special counts founded on the same matter.

<p>On exceptions and motion.</p> <p>Beplevin, for a horse claimed by the plaintiff under a writing of the following tenor:</p> <p>“Kenduskead, February 12, 1869.</p> <p>Beceived of A. Webber, one last spring colt; the same Webber & Scripture had of North ; and one mare William Meguire had, which I agreed to keep and return to said Webber in six months, or pay $73 and interest. The colt and mare to remain the property of said Webber till paid for.</p> <p>(Signed,) O. B. Bead.”</p> <p>The writ was dated January 18, 1873, in which the plaintiff averred the unlawful taking of the horse on November 11, 1872. The officer’s return shows that the property was replevied January 20, 1873.</p> <p>After the death of O. B. Bead, his wife, (the defendant) received the horse by allowance of the judge of probate.</p> <p>Both the identity of the horse and the genuineness of the writing were denied by the defendant; and the evidence tended to show that no demand upon the defendant for a return was made in behalf of the plaintiff until two days after the making of the writ, and after it had been placed in the hands of an officer for service ; and the presiding justice instructed the jury substantially, that if the facts were thus, the action was prematurely brought. To which instruction the plaintiff alleged exceptions.</p> <p>The jury returned a general verdict for the defendant, and also found specially that the horse was his property.</p> <p>The plaintiff moved to set the verdict aside as against evidence.</p>

On exceptions. ■ Assumpsit by nominal plaintiffs for Nathaniel Wilson the plaintiff in interest. A'full statement of this case, as first presented to the law court in 1'872, will be found in 60 Maine, 306. The case at the April term, 1873, was referred under a rule of court to Samuel F. Humphrey, on legal principles, to report any facts and questions of law that either party might desire with right of exceptions.

On exceptions. Assumpsit. The writ was dated August 4, 1872, and contained a count upon an account annexed, and one for money paid, laid out and expended. The action was brought to recover a balance alleged to be due from the defendant to the plaintiffs under the following facts admitted or proved at the trial.

<p>On rebort.</p> <p>The writ in this case, dated September 18, 1869, commands the officer “to attach a new building, used by George F. Parker of Winterport for a dwelling house by himself, and the lot upon which the same stands,” and there particularly described, and to summon the said George F. Parker to appear at the ensuing term of this court for Waldo county, “to answer unto Eliakim E. Byard of Winterport aforesaid, who claims a lien upon said dwelling house and lot, for labor perforated in erecting said dwelling house, by virtue of a contract, dated January 5, 1869, with said George F. Parker, for forty dollars, according to the specification hereto annexed, which amount said George F. Parker, who owns the same, neglects and refuses to pay, to the damage,” &c. There was no more express assumpsit laid than may be inferred from the foregoing phraseology, nor any statement of indebtedness, as consideration for a promise, unless the word printed “owns” (as above) should have been “owes.” The specification annexed was this: “George F. Parker to Eliakim E. Byard, Dr.</p> <p>1869, June 8. To amount due on our contract in writing dated January 5, 1869, for finishing outside of your dwelling house, which contract I have executed.....$40.00.”</p> <p>It was supported by Mr. Byard’s affidavit to its correctness, and contained a description of the property upon which a lien was claimed, of which George F. Parker was said to be the owner, concluding thus: “and I had ceased to labor, or furnish labor or materials for such new building on the twenty-fifth day of June, 1869 ;” but it purported to be sworn to June 24, 1869, and was recorded in the town clerk’s office in Winterport, July 10, 1869. There was a special attachment of the property upon the writ in this case. The plaintiff put in the written contract of January 5, 1869, and testified to the performance of it on his part, and that he had not been paid.</p> <p>It was admitted that no notice of the claim of a lien had ever been given to anybody, and that Mrs. Parker, wife of the defendant, owned the land upon which the building was erected. See the next case of Yerrill v. Parker and wife and new house and lot.</p>

On report. Assumpsit, to recover for labor performed, at the request of the husband, in the erection of a building upon the land of the wife.

On exceptions. Assumpsit, for pauper supplies furnished John Campbell. 7! bm By the city charter of Belfast, the powers of selectmen are vest- 76 433 ed in the mayor and aldermen, so that in case there is no election of overseers of the poor, the mayor and five aldermen are such overseers. The charter also provides that all elections of officers shall be by joint ballot of the two boards in convention.

On report. Beal action. Both parties claimed through Henry P. Hawkins ; the plaintiff, directly by deed; the defendant by a deed from Bradstreet M. Hawkins, levying judgment creditor of Henry P. The levy, if all proceedings were regular, gave the earlier title.

On report. Assumpsit, on an order drawn by one Uriah Nelson, in favor of J. F. Greely, and by him indorsed and delivered to the plaintiff.

<p>Words, — owner defined, deceptions.</p> <p>In K. S., c. 18, § 88 as amended by c. 46 of the acts of 1812, which provides for the recovery of damages for an injury to the owner of adjoining land by the raising or lowering of a street or way, the “owner” designated is the owner at the time of the injury.</p> <p>Where a case is before the law court on exceptions, an objection not stated in the bill is not available.</p>

<p> Contract. </p> <p>A contract prohibited and void by tbe law of tbe state where it was made, will not be enforced in another jurisdiction.</p>

On report. Assumpsit, on account annexed for supplies furnished to a pauper. The account annexed charges “for board, clothing, bedding, nursing and attendance furnished Jane Smith, a pauper, sick with the small pox at my house from November 9, 1871 to December 25, 1871, $425;” and for several, other items of services and payments for her, including funeral expenses and burial, amounting with the first item to $622.50.