Volume 66 — Maine Reports

Bill in equity against these defendants to enforce the collection of a judgment against one Jeremiah Whitney, recovered February 7, 1871, for $349 debt, and $17.26 costs, and still in force, alleging sale by him to the defendants of real estate in fraud of creditors; that he died in March, 1873, intestate and without any property, and that November 28, 1873, an alias execution was issued, and returned December 3, 1873, with a certificate of the officer that he had made…

<p>ON REPORT.</p> <p>Assumpsit against an indorser of a note of the following tenor : “Linneus, May 30, 1873. I promise to pay James H. Blethen or order $137.50, at 10 per cent, interest, on demand.</p> <p>(Signed,) Ebenezer Tozier.”</p> <p>On the note was this indorsement: “I this day sold and delivered to Catharine M. Adams the with not.</p> <p>(Signed,) James H. Blethen.”</p> <p>The plaintiff testified in her direct examination, in substance, that the maker refused to pay the note, and that immediately thereafter, and not more than four or five days from her first possession of it, she notified the defendant of the demand and refusal, and of her intention to hold him as indorser. On the cross-examination, among other things, she testified that she took the note from Blethen on the thirteenth of May, and as near as she recollects demanded it of Tozier about the eighteenth, that she did not remember the year, or whether it was 1872 or 1873.</p> <p>The presiding judge ruled as matter of law, that under the indorsement upon the face of the paper the defendant was not liable as an indorser, and excluded evidence offered by the plaintiff that the agreement between the parties was that the defendant should be liable.</p> <p>After the evidence was out, the action was withdrawn from the jury and submitted to the law court. If the action was maintainable, it was to stand for trial; if not, the plaintiff to be nonsuit.</p> <p>contended that the indorsement not being in blank, but in full, contained the whole contract and left nothing to implication; and also that the evidence of the plaintiff showing demand and notice before the note was due, and not after, was hot sufficient to entitle her to maintain the action.</p>

<p>On exceptions.</p> <p>Replevin for goods attached by the defendant as sheriff on a writ of mesne process in favor of Thomas W. Daniel et al. v. James A. Flint and Charles W. Johnson, January 29, 1874. The officer’s return showed an attachment of the property of the “defendant Flint, his share and interest as partner, with Isaac Hacker.” The case was made law on report; and it appearing that while the action was in the name of Hacker alone, the goods replevied were the partnership property of Hacker and one Charles W. Johnson, the full court at the law term 1875, ordered “plaintiff nonsuit.” The defendant thereafter filed a motion for return of the goods replevied, waiving all claim to damages. The plaintiff objected to a return and offered to prove in substance the following facts: The goods replevied in the suit, Isaac Hacker v. Lewis B. Johnson, belonged to Isaac Hacker and James A. Flint, partners in trade, and were copartnership property; though valued by the attaching officer at $3670.70, their real value was not more than $3400. The aggregate amount of values of goods and money on hand, and demands- and notes due the firm was $5929.83. The indebtedness of the firm to all other persons than Hacker & Son at the time of attachment and replevin was $5568.92. ' The firm was indebted to Hacker & Son $5891.75, besides a balance of interest of $866, making the total indebtedness of the firm $12,326.67. Flint owed the firm $1636.26. The plaintiff was solvent. The goods replevied were placed back in the store, and with the exception of a few remnants, sold for the benefit of creditors, and the proceeds have gone to pay the debts of the firm. The indebtedness of Flint is still unpaid.</p> <p>The court, on the defendant’s objection, excluded the testimony and ordered a return, and the plaintiff alleged exceptions.</p>

ON REPORT. Petition for oertiorari as follows: “Frederic Spofford, of Bueksport, in the county of Hancock and state of Maine, respectfully represents that the railroad commissioners of said state, under and by virtue of a written petition to them addressed by the Bueksport and Bangor railroad company, did undertake to set out, and did declare and determine, that a large tract of land owned and possessed by petitioner, consisting of eighteen acres or thereabouts, partly…

ÜN EXCEPTIONS. TRESPASS. Writ dated September 21st, 1874. Ad damnum 8300. Declaration.

<p> Equity. </p> <p>Where a party has a plain, adequate and complete remedy at law, equity will not lie.</p> <p>The allegations in the bill presented a ease of disseizin, the defendant having the actual possession, claiming to hold it by legal right, absolutely and against any rights of the plaintiff. Held, that the plaintiff having a plain, adequate and complete remedy at law, by writ of entry and injunction to stay waste, pendente lite, under which remedy all his rights could be determined, he could not substitute a bill in equity and dispossess the defendant by injunction.</p> <p>This court will not take jurisdiction in equity to restrain acts of trespass, when the plaintiff is out of possession, except in strong or aggravated instances of trespass which go to the destruction of the inheritance or when the mischief is remediless.</p> <p>When the defendant is in possession under a claim of right or title, as against the plaintiff, and in no way connected with him in estate, a court of equity will not enjoin him from making a lease or conveyance, on the ground that it would be a cloud upon the plaintiff’s title.</p>

ÜN REPORT. Assumpsit, on account annexed for labor on three lots of logs on Penobscot river, in the spring of 1874, $379.05. The plaintiff in his declaration, claimed the statute lien upon the logs. The report shows that lots one and two were cut by the defendant, and lot three by S. N. Hodgdon. The three lots became intermingled in driving towards the Penobscot boom, their destination, in 1873; and a portion failed to reach the boom till the next year.

<p>On report.</p> <p>Case, as stated in tbe opinion.</p>

On exceptions. Case for slander. The declaration alleges in the usual form that- the defendant uttered and published the following false, scandalous and malicious words of and concerning the plaintiff, to wit: “Almon Wing stole windows from Benjamin Jordan’s house,” by means of which false and scandalous words, the plaintiff has been exposed to a prosecution for stealing, and has suffered great anxiety of mind. The defendant demurred generally to the declaration.

<p>On report.</p> <p>Assumpsit, on account annexed (August 14, 1872, the date of the writ,) for cutting and hauling logs on No. 7, now in Penob-scot river, in and below Penobscot boom, marked N X Y 11 X girdle at $1.00 per day, $76; “and the plaintiff claims to have a lien on said logs for personal services in cutting and hauling the same during the past winter, to the amount of $76, and this action is brought to enforce said lien according to the statute in such cases made and provided.”</p> <p>The firm of Shaw & Ayer, claimants as owners of the logs, were admitted to defend. The pleadings were the general issue, with brief statement, denying the lien alleged in the writ, for the reason that the logs were not attached within sixty days after their arrival at the place of destination for sale, and alleging that they were for sale, and that their place of destination for sale was Penobscot boom.</p> <p>The parties agree upon the following facts as pertaining to the case:</p> <p>“The Penobscot boom is owned by the Penobscot boom company, a corporation established by the laws of Maine. Any of the acts of the legislature, public or private, relating to it, may be used as a part of this case. The said general boom consists of various particular gaps and booms, extending from its lower limits in Argyle and Greenfield to a distance above, of ten miles or more. The boom company has the use of the river for its purposes, between its upper and lower limits. The nearest mills below the lower limits are at Oldtown, about four miles below; and the milla where the lumber, coming through the boom, is manufactured, are situated at Oldtown and in various places below as far down as Bangor, and Hampden inclusive. The boom company’s works are maintained and managed by the Penobscot lumbering association, who are lessees of the boom company under the act of the legislature.</p> <p>A great many millions feet of logs annually arrive into the Penobscot boom, from the waters above, of many different marks, and belonging to many different owners. While in the boom, no separation of them is made, according either to respective marks or ownership, but they are promiscuously intermixed.</p> <p>Whenever the state of the water is suitable for it, the practice is for the lumbering association, to raft out and make a “boom scale” of the logs at the different gaps, upon which a toll for boomage and rafting is assessed. Por this purpose each man’s marks are rafted together in separate joints; these j'oints are dropped away by the boom company, and hitched upon buoys below the gaps where rafted, to remain there for a short time for the owners to take possession of them and take them away.</p> <p>The practice is for the owners to take the logs away from the buoys and run them down on to shores situated in different places, all the way from the boom, nearly down to the mills at Oldtown. Some owners have shores of their own for this purpose, and sometimes the running is done by persons who make a business of running rafts of logs upon shores owned or rented by them for the purpose, who both run the logs upon their shores, and keep them there for a certain price per thousand feet therefor.</p> <p>lipón these shores or places of deposit the general practice is for the logs to be scaled again, to ascertain the number of thousands of feet as between the buyer and seller; and the buyer takes the delivery of the logs at these places and carries them thence to places of manufacture below. The buyers sometimes bargain for the purchase of logs before they are in the boom, and sometimes while in the boom, and before any are rafted, and sometimes when upon the shores; but more often a purchaser bargains for a whole or a part of a mark, after a part of them, but not the whole, have been rafted, but the logs to be scaled on the shores below, and to be paid for at a scale there to be made from seller to buyer called a ‘sale scale,’ the bill being dated on the day of the scale, and interest reckoned thereafter.</p> <p>In this way an owner’s mark comes through the boom from time to time, and generally does not become wholly rafted out till the end of a season; and sometimes, when the boom is not cleared in a season, a portion of it may remain till the next season.</p> <p>It is admitted that there is due the plaintiff, for his personal services, the amount claimed in the writ, $76; that the services were performed on these logs; that there were no other logs of this mark that came into the possession of the boom company, for lumbering purposes during 1872, and that these logs were sold by Shaw & Ayer, the claimants in this suit.”</p> <p>The logs were attached on the writ August 16,1872. The evidence tended to show that most of the logs attached had arrived at the Penobscot boom more than sixty days before August 16, the date of the attachment; that small quantities of them continued to arrive from day to day thereafter and that the rear came in and the driving crew was discharged on the 25th or 26th of June.</p>

ON REPORT. Trespass, for an alleged assault upon the female plaintiff, on April 15, 1873, by the defendant, who was then mayor of Bangor. The assault complained of consisted in the action of a police officer and a city physician, under the direction of the defendant, in taking out of the arms of the mother, her child which was believed to be sick with the small pox, for the purpose of removing it to the city hospital.

ON MOTION. Case brought to recover damages for personal injuries received on the defendants’ railway, August 28, 1873. It appeared in evidence that the plaintiff was a passenger on the car of the defendant company, getting on at Bangor, that the car being about throe-fourths full proceeded about twenty-five rods from the depot at a rate of speed from five to ten miles an hour ; and then went off the track, producing a slight shook.

On EXCEPTIONS AND MOTION. Assumpsit, for supplies furnished from April, 1872, to August, 1873, to one Mary F. Lawrence, a pauper, about seventeen years of age, whose alleged settlement was in the defendant town, $91.

<p> Lord’s day. </p> <p>A. loan of money made on the Lord’s day is void.</p> <p>•Whether the promise to repay be in writing, verbal or implied, it cannot be .enforced.</p>

On EXCEPTIONS. Trespass, quare clatisum, from July 1, 1867, to the date of the writ, September 18,1873 ; also a trespass September 1,1873. The verdict was for the plaintiff; and the defendant alleged exceptions. The case and the questions raised are stated in the opinion.

On report. Assumpsit, for removing pianos in the city of Bangor, under a contract by which the plaintiff was to move the pianos and the defendant to find help and to pay 75 cents each. The account annexed contained about 1,200 items for moving pianos and organs covering a period from February 4, 1869, to June 13, 1873.

<p> Equity. Executors and Administrators. </p> <p>A testator bequeathed property to aid in the erection ol a house of worship for the first church of the Christian denomination in Bangor, subject to the conditions that the church be legally organized within ten years, and, before it avails itself of the appropriation, own a lot free from incumbrance on which to erect their house, within one mile of Kenduskeag bridge. Two churches of that denomination organized in some form within the time specified; the first, which was not recognized by the general conference, did not own a lot, nor claim the legacy. The organization of the claimant church was recognized by the general conference and they purchased the requisite lot, and demanded the legacy. In a bill in equity seeking a construction of the will, and direction in the disposition' of the legacy, it was held, that the bequest was valid, and ordered that it be appropriated under the direction of a trustee to be appointed by the court at nisi prius, to aid in the erection of a house of worship upon the lot owned by the church.</p> <p>The general doctrines of Sewall v. Cargill, 15 Maine, 414; Preacher’s Aid Society v. Bich, 45 Maine, 552; Tappan v. Déblois, id., 122; and Howard v. Am. Peace Society et als., 49 Maine, 288, are re-affirmed and applied to the facts here presented.</p> <p>Extracts from the records of the Maine Eastern Conference of the Christian Church and those of the First Bangor Christian Church are legally proper to be considered by the court.</p> <p>Where a testator made a bequest under certain conditions “to aid in the erection of a house of worship to be under the control of the First Christian Church in Bangor,” held, that even if the conditions were performed, the action here brought would not lie in behalf of the church against the executor for the payment of the bequest.</p>

<p>On EXCEPTIONS AND MOTION.</p> <p>Assumpsit on a promisory note, set out in the opinion.</p> <p>Defense: — a conditional note, fraud in its inception, and failure of consideration.</p> <p>Th'e plaintiff company in whose name the action was prosecuted by receivers for the benefit of the insured, was incorporated by an act of the legislature, March 16, 1870. Section 9, of their charter provides that “the company for the better security of those concerned may receive notes for premiums in advance of persons intending’ to receive policies, and may'negotiate such notes for the purpose of paying claims or otherwise in the course of its business; and a compensation to the signers thereof may be allowed and paid at a rate to be determined by the trustees, but not exceeding six per cent per annum.” It was decided in Howard v. Palmer, 64 Maine, 86, that the notes given under this 9th section were valid. In the case at bar the jury found specially that the note in suit was given under the 9th section ; that the signature of the defendants to the agreement to advance notes for premiums in advance was not obtained by fraud, and returned a general verdict for the plaintiff for $1,075.07.</p> <p>The defendants claim that these findings were under erroneous instructions; that they gave the note because they signed the agreement marked “A,” set out in the opinion ; and that they were induced to sign the agreement without reading it, by the false statements of Howard, who was appointed by the company to obtain signatures to it, and who represented that the note to be given was for an open policy to be surrendered when payable, on payment of premiums earned upon the open policy.</p> <p>TJpon this point the presiding justice said to the jury: “Now, it is claimed, that it is procured by fraud. The charge is a grave one, when made against a gentleman of standing ; and the burden is upon him who makes it to prove it. The defendant is a gentleman of standing ; he says he did not read this paper. If so, that is his folly and is not fraud. He says that Mr. Howard asked him to sign, saying, if I have his exact words, ‘I have so many persons to get, and I want to know who they are ; so I took my pen and signed it.’ It would be fraud to misread a paper to a blind man, or to one who could not read; but signing a paper without reading is not fraud. Neither is it fraud if one misapprehends, and misapprehending, misstates the legal effect of an instrument. It is a matter of every-day occurrence that questions arise as to what is the proper construction to be given to an instrument; and a construction given in good faith is not fraud.”</p> <p>To this and other rulings which appear in the opinion, the defendants alleged exceptions.</p> <p>The language of the court to the jury implied that a fraudulent intention was necessary, Judge Story, Eq. § 193, says that such intent is not necessary and wholly immaterial. It is immaterial whether Howard knew his assertions were false, or made them without knowing them to be true or false.</p> <p>Apparent sincerity, affected piety, cunning, duplicity and falsehood, frequently, all play a part in the drama of fraud, and all combined would often fail of success without extreme folly and credulity on the part of the .victim of the fraud. Want of vigilance does not purge fraud in civil eases. Other points taken by counsel appear in the opinion.</p>

ON EXCEPTIONS. Indictment against the defendant for being a common seller of intoxicating liquors.

On exceptions. Indictment. The prisoner was tried, for the alleged murder of Brawn on board a boat at Milford on the Penobscot river, on the 19th day of July, 1874; and upon the trial the counsel for the defense contended that the parties Carson and Brawn were intoxicated at the time.

ON REPORT. Petition for extension of time within which to present and prove claims before the receivers of the defendant company, containing a statement in substance as follows : the petitioners represent that January 2, 1871 they gave a promissory note for $1001, payable in twelve months from date to the order of the Maine Mutual Marine Insurance Company; that the company having become insolvent and receivers appointed, the note, payment having been refused, was placed in…

<p> Poor Debtor. Certiorari. </p> <p>A debtor committed to jail without having given bond, and disclosing there under the provisions of B. S., c. 113, §§ 21 and 22, is not legally entitled to claim a discharge without paying the amount due the jailor for his support in jail. Such sum is part and parcel of the jailor’s fees.</p> <p>Whether under our present statutes regulating such proceedings, a petition for certiorari to quash the record of magistrates sitting to bear the disclosure of a poor debtor can ever be maintained, quaere.</p> <p>If it can, the magistrate whose record is in question, as well as tho debtor whose liability to future arrest for the same debt is involved, should be made parties.</p> <p>Tho record only can be brought up; and nothing dehors the record can be proved by tho petitioner.</p> <p>Tor the correction of a merely harmless error, a writ of certiorari will not be granted. Thus, where a creditor, on account of the erroneous decision of magistrates in discharging a poor debtor from jail without requiring him to first pay the jailor for his board, paid it voluntarily himself when not legally liable, or, even if liable, failed to show that the premature discharge was of any damage to him; the petition for certiorari to quash the record of the magistrates was denied.</p>

ON EXCEPTIONS. Searoh AND seizure complaint and warrant for violation of , ,. , tlie liquor law.

On report. Assumpsit. The defendant signed the agreement head-noted in the case of the same plaintiffs against Hodgkins, ante p. 109, and also the same note on which this action is brought. After the evidence was out, the case was reported to the full court for such judgment as the legal rights of the parties require. The facts appear in the opinion. The note in suit is of same character as the one in Howard v. Palmer, 64 Maine, 86.

On exceptions and motion. Assumpsit on a note set out in the opinion. The defense was that the note was given, not under § 9 of the charter of the company for “the security of dealers,” but for an open policy for premiums in advance to be earned by the company ; that the defendant had paid for all earned premiums, leaving nothing due on the note. The relation of the company to the signers of notes of similar form, appears more or less fully in several reported cases.

<p> Costs. </p> <p>In an action to secure a lien on logs, no more than one day’s attendance can be taxed for the plaintiff, at any one term, until notice of the suit, such as the court orders, is given.</p>

On exceptions. Assumpsit, upon a promissory note for $2,397.12, dated January 14th, 1875, payable to the order of J. C. Godfrey & Co., six months after date, given by defendants, for intoxicating liquors sold in violation of law. The note was discounted by the payee, at the Mercantile Bank, in Bangor, January 15th, 1875, and became the property of the bank. Subsequently, on the day the note became due it was purchased of the bank by the plaintiff for its full amount.

On exceptions. Indictment charging the defendant with being a common seller of intoxicating liquors at Bangor, in the county of Penobscot, on the first day of September, A. D. 1875, and to the time of finding the indictment at the February term, A. D. 1876. (Signed.) A true bill. Emore C. Smart, Foreman. The defendant seasonably filed the following plea in abatement: “STATE OE MAINE.

On eepobt. Teespass on the case, declaring in different counts on a common law and on a statute liability for the flowage of the cellar of their store on the corner of Exchange and York streets, Bangor, in May and June, 1874, setting out among other things that the plaintiffs were lessees of the owners in fee of the premises, the building in 1870 of a public drain, by the city through Exchange street, the payment by the plaintiffs’ lessors of $100 assessed for the privilege…

<p>ÜN EXCEPTIONS.</p> <p>Demurrer to a declaration in a writ of entry in which the demanded premises are described as follows: “A certain parcel or lot of land with the buildings thereon, situated in said Baugor, on the easterly side Ohio street, being the former homestead of said Carléton S. Bragg,” with a further statement of its being a part of the premises conveyed to certain parties and recorded in the registry with various references to the books and pages of the registry, and the further statement that they were the same premises conveyed by mortgage of a given date by the defendant to the plaintiff.</p> <p>The presiding justice overruled the demurrer, which was general ; and the defendant alleged exceptions.</p> <p>The demandant’s declaration is bad.</p> <p>I. There is no sufficient description of the demanded premises in the writ and declaration; the reference in the same “to all said deeds to be had for a more full description of said premises, is an admission that there is an insufficient description to be found therein.” Miller v. Miller, 16 Pick. 215. Atwood v. Atwood, 22 Pick. 283.</p> <p>II. The declaration alleges no disseizin by the defendant.</p> <p>The description in the declaration is sufficient, and reference to a record or deeds can do no harm. Willey v. Nichols, 59 Maine.,, 253.</p> <p>The principle of the cases cited by defendant’s counsel is, at most, this: that “when lands are demanded, the description of them must be so certain that seizin may be delivered by the sheriff without reference to any description dehors the writ.” Our court in Willey v. Nichols, supra, say : “This is true only in a limited sense. Neither a parcel of land nor a person can be so described as to preclude inquiry.”</p> <p>The true test is : “Can a reasonably intelligent officer find and deliver seizin of the premises without going to the county records for aid.” Willey v. Nichols.</p> <p>The description is certainly as good as, and we claim even better than, that sustained by this court in Willey v. Nichols, and by the court of Massachusetts in Riley v. Smith, 9 Allen, 370, and in Silloway v. Hale, 8 Allen, 61. See also Proprietors of Ken-nebec Purchase v. Lowell, 2 Maine, 149.</p> <p>In Chase v. McLellan, 49 Maine, 375, this court said: “The description should be such that those entitled to redeem should know with reasonable certainty what premises are intended.”</p> <p>In this case the party defending is the mortgageor himself, the description of which he complains is the very same description of the premises furnished by him to the plaintiff in his mortgage deed ; so that the premises are intelligently described to him.</p> <p>Reply. The point decided in Proprietors of Ken. Purchase v. Lowell, is that the general issue admitted possession by the tenant (page 154); he should have demurred. 2 Maine, 149. Willey v. Nichols, 59 Maine, 253, is not applicable. There is just difference enough between Chase v. McLellan, 49 Maine, 375, and this case to make the illustration complete.</p> <p>“Now occupied,” “being the former homestead of said Carleton S. Bragg.” To illustrate. — A certain lot or parcel of land, &c., situate in Stetson on the easterly side of Main street, being the former homestead of Lewis Barker. As matter of fact Lewis Barker has had four former homesteads in Stetson on the easterly side of Main street. Non constat but Carleton S. Bragg has had two or more homesteads on the easterly side of Ohio street. Which shall the officer deliver seizin of ? Inquiry would not avail him. If the adjective “late” instead of “former” had been used, possibly it might have been sufficient.</p>

<p> Trustee process. </p> <p>A writ of scire facias cannot issue against a trustee before Ms default is shown by the return of an officer on the execution against him.</p> <p>The return on the execution before the return day will not authorize the issuing of such writ.</p> <p>It is immaterial to show that the judgment debtor had no property during the life of the execution, if the return by the officer is made before the return day.</p> <p>The re-enactment of the statute after a judicial construction of its meaning is to be regarded as a legislative adoption of the statute as thus construed.</p> <p>A trustee on scire facias may defend by showing that no legal service was made on the principal defendant.</p>

On report. FORCIBLE ENTRY AND DETAINER and Assumpsit ; two actions tried together and made law on report of the same evidence. The premises, the possession and the rent of which the plaintiff sought to recover, was a house built on land leased of the Highland Slate Company. The plaintiff, a mortgageor in possession, about November 1, 1873, let, in writing, the house to the defendant, at a rent of three dollars per month for six months.

On MOTION AND EXCEPTIONS. AssuMpsit, on account annexed for seventy-five cords of slabs, sawed from logs belonging to the plaintiff, at different times, from 1868 to 1872, at $2.00 per cord. $150. Plea, general issue. Yerdict for the defendant. The plaintiff filed exceptions and motion to set aside the verdict.

<p> Certiorari. </p> <p>The three assessors of the town of Freedom, where Flye resided, met at the time and place duly notified, under B. S., o. 6, § 65, to receive the lists of the ■polls and estates. Flye did not appear at the time and place; but after the assessors had finished their session for the day, two of their number called at Flye’s store and received his list under oath. At a subsequent day the three assessors called upon Flye for a further statement, when he made answers in writing to their questions, but refused to subscribe and make oath thereto. Held, that such refusal barred Ms right to have an adjudication by the commissioners.</p>

ON REPORT. Trespass and writ oe entry ; three cases tried together between the same parties upon the same evidence, in which the question was : where upon the face of the earth was the east and west divisional line between their farms. Webber’s land lay north and Overlook’s south of that line; and each charged the other in trespass, with cutting and carrying away grass over their line, in the season of 1874. Overlook also brought a writ of entry.

<p>Bill in equity, inserted in a writ of attachment, dated December 26, 1872, returnable at the April term, 1873.</p> <p>The bill alleges, that at the supreme judicial court, Waldo county, October term, 1857, the plaintiffs recovered judgment against Bobie F. Alexander, one of the defendants, for $1,255.97, debt, and $15.01, costs; that the cause of action on which the judgment was based was goods and merchandise sold by the plaintiffs in 1855, to him and one Crawford, then in life, since deceased; that on the eleventh of April, 1860, said Bobie F., having given a bond on the execution which issued on said judgment, was admitted to the poor debtors’ oath ; that action accrued on said judgment, in which, judgment was duly rendered at the May term, 1867; that the execution which .issued thereon was duly returned nulla bona, by the proper officer; that Hannah Alexander, one of the defendants, was married to Bobie F., April 3, 1856, not being then possessed of any property or means, and that she has not since acquired or attained any except from or through her husband; that by deed dated June 24, 1862, duly executed and recorded, one Harriet Boynton conveyed to said Hannah Alexander, a certain parcel of land, in Belmont, in said county, for an alleged consideration of $100; that by deed dated January 16, 1864, one John Alexander conveyed to said Hannah, another certain parcel of land, in Belmont, for an alleged consideration of $500; that by deed dated September 6, 1865, John Alexander conveyed to said Hannah, another certain parcel of land, in Belmont, for an alleged consideration of $135 ; that each and all of said conveyances were paid for by the money of Bobie F., who, ■with the intention of defrauding the plaintiffs, and for the purpose of keeping said real estate out of their reach, procured the conveyances to his wife; that the legal title of record to the same still remains in her, and that Kobie F. continues in the possession and occupation of the same as of his own property, and that said Hannah was well knowing of said fraudulent intention.</p> <p>The bill prays for a decree for a conveyance of said real estate to the plaintiffs, or for payment of the debt, or for such other relief as they may be entitled to.</p> <p>A general demurrer and also a replication were duly filed.</p> <p>In their answers, both defendants admitted all the allegations of the bill, except that said Hannah was not at the time of her marriage possessed of any property, and has not since acquired or attained any except from or through her husband ; except, also, that said conveyances were paid for by the money of the said Kobie F., and that he procured them to be made to her to keep said real estate out of the reach of the plaintiffs, and except, also, that he has continued in possession and occupation of the same as of his own property. There is a general denial of all fraud and fraudulent intent.</p>

<p> Railroad. </p> <p>The defendant subscribed an agreement to take the amount of shares set against his name in the capital stock of the plaintiff railroad company agreeably to foregoing conditions, one of which was that no assessment except for a preliminary survey and location should bo made nor any work upon the road commenced until the full amount was secured for its completion to (or as far as to) Newport. The subscriptions were less in amount than the actual cost; and, if a deduction be made of invalid conditional subscriptions, were much less than the cost estimated by the engineer. Held, that the defendant’s subscription was invalid.</p>

Bill in equity inserted in a writ of attachment, dated December 13, 1875, brought to redeem certain lands from a mortgage thereon. Most of the allegations of the bill are identical with those in the suit Wallace et als. v. Stevens et als., 64 Maine, 225. To constitute a demand and refusal sufficient to support a bill of this nature, such demand must be made in respect to time and place that the mortgagee may have an opportunity to render bis account.

<p> Payment. </p> <p>A town order, passed by a debtor to Ms creditor for tbe purpose of paying Ms debt and received for tbat purpose, botb parties acting in good faitb, will not operate as a payment if, at tbe time, it was utterly worthless for tbe reason tbat tbe drawers and accejitor bad no authority to make or accept it.</p>

<p> Domicile. </p> <p>The domicile of a party in any particular locality is acquired by a union of intent and of presence.</p> <p>Thus: The defendant, a shipmaster, left his home in Stockton, in September, 1871, on a voyage, intending to abandon Stockton as his home and, on his return from sea, to go to Searsport and make it his home thereafter. On his return in June, 1872, ho married a resident of Searsport, and remained there a few days, then went to sea with his wife, returned to Searsport in May, 1874, and left his family there, not having been in Stockton except on a visit since 1871. IIeld, in an action by Stockton, for taxes for the years 18Y2-3-4, that from and after June, 1872, when there was a union of intent and of presence in Searsport, his domicile was in Searsport, and not in Stockton.</p>

On EXCEPTIONS. Assumpsit, upon an account for labor. The action was commenced before James H. Lamson, esq., one of tbe trial justices for the county of Waldo.

On EXCEPTIONS. Case for malicious prosecution. The defendant made complaint for forgery against the plaintiff before a magistrate, on which the plaintiff was arrested, and after examination acquitted and discharged from arrest. The plaintiff thereupon brought this action, on the trial of which the presiding justice, upon request of the plaintiff’s counsel, instructed the jury that there was no probable cause for the prosecution. ' He further charged as appears in the opinion.

<p> Trust. </p> <p>Where a guardian receives a conveyance of the estate of his ward in his own name and includes it in the inventory as his ward’s property, charging the estate of his ward with the expenses incurred in its management and accounting for its proceeds, he is to be regarded as holding the estate in trust.</p> <p>On the decease of such guardian, the ward being still a minor, a bill in equity may be maintained against the administrator of the deceased guardian to enforce a conveyance of the property thus held in trust and to account for its earnings.</p> <p>Tp such bill the ward should be a party, suing by his guardian.</p>

<p>Mortgage</p> <p>The mortgagee, by deed of warranty of the premises mortgaged, transfers to his grantee all his interest in the mortgage and mortgaged premises.</p> <p>Neither the mortgageor nor his grantee can maintain a real action against the mortgagee nor his assignee after condition broken.</p> <p>The remedy of the mortgageor or his grantee against the mortgagee or his assignee is by bill in equity.</p>

<p> Promissory notes. </p> <p>It is the duty of the sureties on a note upon non-payment by the principal and notice thereof, at once, to pay the same.</p> <p>When the sureties on a note, to which there may be an existing defense unknown to them, are sued; and one of them, in good faith and without negligence, pays the same after suit and before judgment, he can recover of his co-sureties their contributory share.</p>

On report. Writ of entry on mortgages of land lying in Calais, Maine. Writ, dated December 4, 1874. Plea, general issue with brief statement that tbe amount secured by the mortgages has been paid, and nothing is due on the same.

On report. Assttmfsit, on note as follows: “$1,331.20. Calais, Dec. 1,1870. Ten months after date, for value received, we promise to pay H. F. Eaton, or order, thirteen hundred and thirty-one dollars and twenty cents, at Calais National Bank. Principal, C. Waite & Co., surety, James S. Hall. [Indorsements.] Jan. 30, 1873, received on the within, two hundred ninety-five dollars and twenty cents.

On EXCEPTIONS. Assumpsit for money bad and received, and account annexed for $1,395.73, paid under protest, for taxes in the town of Princeton, assessed on a saw mill and stock of logs for the mill from 1864 to 1872, inclusive. Date of writ, August 19, 1873. Plea, general issue and statute of limitations. The plaintiffs, residents of Calais, were properly assessed for a store and lot and stock of goods'in the defendant town.

On report. Writ of Entry Plea, general issue, with a brief statement alleging adverse possession for over twenty years in the tenants and claim for better-ments. The demandant put into the case a deed of quitclaim from Columbus Cooper to Patrick McLaughlin admitted, for the purpose of the trial, to embrace a part of the demanded premises.

ON EXCEPTIONS. Trover, for 1500 bushels of blueberries picked by trespassers in 1871, on wild lands leased to the plaintiff and by them sold to the defendants at their canning factory at Jonesx>ort. Plea, not guilty, with a brief statement that the plaintiff did not own the blueberries nor the land from which they were picked and never had possession of the same; that the blueberries did not come from the plaintiff’s land.

<p>ON REPORT.</p> <p>Trespass quare clausum fregit. Writ dated September 4, 1875.</p> <p>It was admitted tbat the plaintiff bad been in possession under her deed ever since its date, January, 1865, and that Alvin Smith, by whose action the alleged trespass was committed in 1875, was then road [street] commissioner, chosen by the city under the statute, and a public officer duly elected and qualified.</p> <p>The street commissioner removed the stone wall in front of the plaintiff’s house, and the earth filling back of it, encroaching, as the evidence tended to show, some twelve feet over the true line.</p>

<p> Assignment. Attorney and, client. </p> <p>A claim for damages for assault and battery is not assignable.</p> <p>An attorney, before judgment, bas no lien to defeat a settlement made by the parties.</p>

On REPORT. Case against the defendants as common carriers, for the loss of a box containing jewelry goods of the alleged value of $1700, received by the defendants at Boston, November 28, 1871, marked II. A. Osgood, Lewiston, Maine. Plea, general issue.

On exceptions. Bill in equity, by the complainants, trustees of the Winthrop savings bank, praying for a sequestration and equitable distribution of their assets. September 27, 1875, the decree of sequestration was passed, and commissioners were appointed to receive and decide upon all claims against the institution, and make report to the court, of the claims allowed and disallowed.

<p>On REPORT.</p> <p>Assumpsit, on account annexed, to which no defense was made. The contention was, as to the liability of the alleged trustee, on facts appearing in the opinion.</p>

On EXCEPTIONS. Writ of entry, in the form of a capias, and served by arrest. The defendant filed, on the tenth day of the term, a motion to dismiss for error in form of writ and service. The presiding justice sustained the motion, and ordered the action dismissed ; and the plaintiff alleged exceptions.

Case, for obstructing a public way. Tlie substance of the testimony bearing upon the legal points raised, appears in the opinion.

On EXCEPTIONS. On petition, called by the petitioner’s counsel a petition for annulling a decree of divorce, but by the respondent’s counsel a petition for review.

<p>On excSeptions.</p> <p>Complaint in a bastardy process, made before a justice of the peace, who took the accusation and examination of the complainant and issued his warrant for the apprehension of the accused, whom he required to give bond for his appearance, etc., at this court.</p> <p>Upon motion of respondent’s counsel, the court ruled that the action could not be maintained, and ordered it dismissed; and the complainant alleged exceptions.</p>

Bill in equity, to redeem mortgaged premises, setting forth that one Nathaniel Mayo, October 17, 1849, owned a house and lot in Waterville, (described in the bill,) that he then mortgaged the premises to the defendant to secure the payment of a note for $81.41 given by biin to the defendant, payable in one year from date and interest; that by a warrantee deed from Mayo and other mesne conveyances all of warrantee and without reservation as to the mortgage, all of Mayo’s…

On EXCEPTIONS. Trespass guare clausum. piea} general issue, with brief statement alleging license, and soil and freehold. The writ dated April 7th, 1874, alleged a breaking and entering bj the defendants, August 27,1873, and September 22,1873, and a taking and carrying away of certain growing crops. The plaintiff claimed title to the locus, under deed of warranty from the defendants to her, August 25,1873, for the consideration of six hundred dollars.

On exceptions. Trespass, guare clausum. The contention was as to the plaintiff’s north divisional line. Both parties claimed under the same grantor, the plaintiff by the earlier title. The Worromontogus river was a monument on the north of the plaintiff’s lot, who claimed to low water mark, it being a stream where the tide ebbed and flowed.

<p> Interest. </p> <p>On a promissory note payable on time, stipulating for a higher rate of interest than six per cent, after due until paid, interest is recoverable according to its terms.</p>

<p> Exceptions. </p> <p>Exceptions will not lie to a refusal to allow a defendant to plead anew, who, after the first term, has filed a general demurrer to the plaintiff ’ s declaration.</p>

On exceptions. An appeal from the decree of the judge of probate, approving a will of the following tenor : “I, Amos Barnes, of Camden, in the county of Knox, and state of Maine, knowing the uncertainty of life, and being desirous of controlling the distribution of my property, do make, publish and declare the following, as my last will and testament: First. I give and bequeath to my wife, Sarah It.

On EXCEPTIONS. Petition foe weit of handAMus, commanding tbe respondent, register of deeds, to permit the petitioners to have access to the volumes of index and of records, and the use of a part of the office, for the purpose of changing all such volumes of index to the form known as the ledger index, etc. The respondent filed a motion to dismiss the petition : I. Because the aforesaid petitioners had no lawful authority to demand of said White the use of a portion of the…

<p>On exceptions.</p> <p>Indiotment for arson, under R. S., c. 119, § 1.</p> <p>The evidence tended to show that the defendant, October 20, 1875, at Rockland, in the night time, set fire to the dwelling house of one Eleanor R. Ingraham, at her instance, and for her benefit, for the purpose of defrauding an insurance company; and that no person was in the house at the time. The presiding justice instructed the jury in substance that if they believed this evidence, it was sufficient to prove the defendant guilty of the crime charged in the indictment. The verdict was guilty; and the defendant alleged exceptions.</p>

On REPORT. Case, set out in the declaration as follows : “For that on the twenty-eighth day of May, 1872, the plaintiff was the owner and proprietor of a new, spacious and commodious hotel, situated in Rockland, in the county of Knox, called the Lynde hotel, and was doing therein a large, lucrative and increasing business with great profit to himself in accommodating a large traveling public from all parts of the country as guests, and on said twenty-eighth day of May,…

On bepobt. Wbit oe entey, to recover two-thirds part of a lime rock quarry, and damages for rock taken out by the defendant, dated February 23, 1875. Plea, general issue. The plaintiffs and the defendant, are brothers, and only surviving children of Oliver B. Brown, who was the owner of the premises for more than twenty years, and until he died, November 15, 1873, unless they were conveyed by the deed to the defendant, hereinafter mentioned.

On EXCEPTIONS. Indictment, for libel. The defendants demurred; the demurrer was overruled by the court; and the defendants alleged exceptions. By consent of the county attorney, the defendants, in the event that the demurrer is overruled by the full court, shall have the right to plead anew. The alleged errors in the indictment are stated in the arguments and in the opinion. I. No count in the indictment sufficiently describes a libel.

On EEPOBT. Assumpsit for attorney’s fees in the defense of four actions against the defendant’s son, Ebenezer Otis, jr., in the superior court'for Suffolk county, Massachusetts, continued four terms and defaulted. $120. The plaintiff put in evidence the following letter from the ■defendant: “Rockland, December 10,1870.

On motion and exceptions. Case, for injury to borse on defendants’highway, May 17,1875. The verdict was for the plaintiff for $700, which the defendants moved to set aside as against law and evidence; and alleged exceptions, because, among other things, the presiding justice refused to instruct the jury that there had been no such evidence introduced by the plaintiff, of notice to the defendants as was required by the laws of 1874, c. 215, § 1.

On report. Assumpsit, declaring on a contract substantially as stated in the following writing signed by the parties, and read in evidence by the plaintiffs. “Rockland, March 2, 1874. Memorandum contract by and between II. II. Munroe, of Thomaston, of the first part, and John' Bird & Co., of Rockland, of the second part.

On EXCEPTIONS to the exclusion of evidence. Case for injuries to plaintiff wife from defective sidewalk. How the legal point was raised appears in the opinion.

<p>ON EXCEPTIONS.</p> <p>Tbespass against a justice of the peace for illegal arrest and imprisonment. The presiding justice ruled that the relationship between the defendant, a justice of the peace, and one of the parties to a cause, which was that of first cousins, did not disqualify the justice from taking a deposition in the cause, and that an action could not be maintained against him for committing the plaintiff, because he refused to testify therein ; and the plaintiff alleged exceptions.</p>

On report. Petition under B.. S., e. 3, § 43, for the appointment of commissioners to determine a disputed line between the petitioning town of Bremen on the north, and the respondent town of Bristol on the south, commencing at Muscongus harbor, and extending to Biscay pond; and also from the bar between Hog island and Loud’s island to the point where the dividing line between said towns strikes the westerly shore of Muscongus harbor.

ON exceptions to the overruling of demurrers and motions of the defendant. On complaints and warrants, in three cases presented together and sufficiently stated in the opinion.

On exceptions and Motion. Tbespass for breaking and entering the plaintiff’s close and cutting and carrying away wood and timber. The contention was one of boundaries. Both parties derive title under a devise in the will of the former owner, Henry Clark.

<p>On exceptions, at the October term, 1875.</p> <p>Debt, on a judgment. The writ is dated March 23, 1875. The action was entered at the April term, thereafter, at which term the defendant company, on the second day thereof, filed a plea in abatement, to which the plaintiffs on the thirteenth day of the term filed a demurrer, which the defendants joined. The court sustained the demurrer and the defendants alleged exceptions. The law court subsequently overruled the exceptions and awarded respondeas ouster.</p> <p>On the first day of the present October term, 1875 and on the first call of the docket, the defendants filed their petition for the removal of the case to the circuit court of the United States, and also at the same time filed their bond with sureties.</p> <p>The presiding justice was of the opinion that this is not the first term at which the action could have been tried, and therefore denied the petition and required the defendants to plead further in this court; and the defendant on the third day of the term alleged exceptions, and thereafter pleaded the general issue, with a brief statement of the non-existence of the corporation.</p> <p>The counsel prosecuting the case against the defendants, having filed a replication of plaintiffs to the defendants’ plea of general issue, moved that the court order the brief statement of the defendants be stricken out and disregarded; and. the court so ordered. He then offered in evidence the record of the judgment declared on in the writ.</p> <p>The defendants’ counsel offered to produce evidence to support the allegations and matter contained in the defendants’ brief statement ; but the court ruled that the evidence was inadmissible, the brief statement having been stricken out by order of the court, and excluded the evidence offered.</p> <p>The parties consenting that the presiding judge might pass upon the case without the intervention of the jury, reserving to either party the right of exceptions, the judge on the third day of. the term ordered an entry of judgment for the plaintiffs for the amount of the judgment sued on, with legal interest and costs of court. And the defendants alleged exceptions.</p>

<p>On REPORT.</p> <p>Assumpsit, for money bad and received by the defendant as collector of taxes.</p>

ÜN EXCEPTIONS AND MOTION. Trespass for collision on the highway, in substance, that on March 14, 1875, the plaintiff, wife, was carefully driving on the right side of Washington street, Bath, and the defendant, approaching to meet her, so carelessly drove as to induce a collision of carriages, by which she was thrown out; that the main trunk of the right sciatic nerve w'as thereby injured, resulting in great pain and introversion of her foot and permanent lameness.

<p>On report.</p> <p>Petition for certiorari, to quash the proceedings of the county commissioners, had on petition of Daniel Bunker' of Fairfield, where he represented in substance; that he owned a quantity of real estate in Fairfield; that the assessors of Fairfield, during the years 1878 and 1874, overrated his property, and assessed more tax against him than was just; that he had made application to them for an abatement for both years, and they refused to make it, wherefore he asked relief.</p> <p>The commissioners after notice, hearing and examination, adjudged that the valuation of the real estate of Bunker, for the years 1873 and 1874 be reduced from the sum of four thousand dollars to the sum of twenty-five hundred dollars, and ordered that the costs accruing upon the petition, taxed at $21.08 be paid into the treasury of the county by the town of Fairfield, within six months from date.</p> <p>The petitioners in the case at bar after setting out the proceedings of the commissioners, prayed for ■ the writ of certiorari to issue, on account of errors assigned, among others that the commissioners had no jurisdiction, because “it is not alleged in said petition that the petitioner did ‘make and bring in true and perfect lists of his poll and estate real and personal, not by law exempt from taxation,’ which he was possessed of on the first days of April, in the years complained of, to the assessors of said Fair-field, as he in fact did not, although said assessors gave the proper •notices therefor.”</p> <p>It was admitted that the assessors posted the notices for persons liable to be taxed to bring in lists of their polls and estates as required by law, and that Bunker did not bring in or present to them any such list, and further that they went on to, viewed and appraised the premises of Bunker, named in his petition, before making their assessment.</p>

<p> Exceptions. </p> <p>Exceptions will not be sustained, unless it affirmatively appear that the party excepting is aggrieved by the ruling of which he complains.</p>

On report. Assumpsit on this note : “$275. Fairfield, Me., April 30, 1873. Four months after date, I promise to pay to the order of William W. Hideout & Oo, two hundred seventy-five dollars, at either bank in Waterville, with interest. Yalue received. No. 4,907. William W. Hideout. [INDORSEMENT.] L. T. Boothby.

Oh exoeptioNS, arising under a trustee disclosure. Abner Coburn, in behalf of the trustees, disclosed that they employed the firm of Wright & Blackwell, in a logging operation amounting to $6,519.23 ; that before the service they had advanced $4,306.68, leaving a balance of $2,212.55 to be paid to .Blackwell & Wright; that he was informed and believed at that time there were company debts due and outstanding against Blackwell & Wright, growing out of the operations,…

ON Report, on so much of the evidence as is legally admissible. Writ of entes-, for a lot of land in that part of Hartland which was formerly a portion of St. Albans. The defendants pleaded in abatement that there was no such corporation. The issue was on the plaintiffs’ rejoinder traversing the plea.

<p>Oh report, on so much of the evidence as is legally admissible, and so much of the testimony in the case of Proprietors of Baptist meeting-house v. Webb et al. ante, 398, as is applicable.</p> <p>Trespass, for breaking and entering the plaintiffs’ meetinghouse in St. Albans, and damaging and spoiling the locks and staples belonging to the doors.</p> <p>Plea not guilty, with a brief statement, that “in the performance of the acts constituting the alleged trespass, they were acting as a committee and agents of the proprietors of the Baptist meeting-house at St. Albans, a corporation organized according to law, under the statutes of this state, and owning the meeting-house described in the plaintiffs’ writ, and having a right to the possession and control thereof, and that having demanded the key from a person in temporary charge, and being refused, they entered the meeting-house as they had a right to, as being the property of the said corporation.”</p> <p>The defendants admitted a forcible entry of the door by them, and introduced evidence tending to prove their brief statement.</p> <p>The evidence on behalf of the plaintiffs, to the point of their organization, ownership and possession of the church, was introduced in the case next preceding this, in this volume, and tended to prove that a majority of the pew owners were acting as members of their organization which had taken, and, for some time held, actual possession of the meeting-house.</p>

On report of evidence in two cases, tried together. Case for injury from defective highway. The alleged defect is stated in the first sentence of the opinion. The plea was the general issue. There was evidence that John D. Whittemore, a teamster, was traveling along a back road, in Athens, in August, 1873, with a loaded wagon.

On motion and- exoeptions. Case upon an insurance policy against fire.

ON REPORT. Assumpsit on the following contract: “Be it known that for a valuable consideration, paid by Warren Holbrook, of Bingham, I hereby bind myéelf to said Holbrook, in the sum of five hundred dollars, to close up my house, as a public house, for the .term of five years, meaning that the stables, nor the house shall not.be used for the entertainment of the traveling public, for the next five years. Bingham, May 25, 1872.

<p> Pleading. </p> <p>The description of the defendant party in a declaration upon a promissory note signed hy two persons, as of the singular number, “defendant,” is not good cause for special demurrer, where it is clearly discernable from the declaration, as a whole that both of the persons sued are intended to be described as promisors.</p> <p>Such a clerical error will not he allowed to have effect, despite the proof that it is an error and against the true intent and meaning of the declaration considered as a whole.</p>

ON EXCEPTIONS. Indictment, for keeping a liquor nuisance. The 'defendant was called as a witness in his own behalf, and testified that he kept a saloon on Lisbon street in Lewiston, and that he sold cider and wine by the glass to be drunk on the premises, and stated that the wine was known as Mains’ wine, and was made from fruit grown in this state. The jury found the defendant guilty.

On EXCEPTIONS AND MOTION FOR NEW TRIAL. Case for an injury to the plaintiff, October 9, 1875, caused by the alleged negligence of the defendants in failing to keep a certain portion of their machinery, upon which the plaintiff worked, properly covered.

On exceptions. There was an award of a referee made in the case at the January term of this court, 1876, under a rule of reference previously issued therefrom.

<p> Bankruptcy. </p> <p>An assignee in bankruptcy, in the absence of fraud, takes only suck rights and interests as the bankrupt himself had and could assert, at the time of his bankruptcy.</p> <p>Thus: Where A and B claimed title to the same premises; A, through an earlier and unrecorded conveyance; B, through an assignment in bankruptcy of A’s grantor, made after and without knowledge of the conveyance to A; held, that A had the better title.</p>

ON eaots agreed, stated in the opinion. Case to recover damages for the infringement of an easement. It was for the defendant to see to, it that he did not trespass upon others. The plaintiffs, as soon as they ascertained their rights, notified the defendant, and forbade his further proceeding. This accidental delay on the part of the plaintiffs, is no evidence of abandonment of their rights. Wash, on Easements, c. 5, § 5, et sequens.

ON EXCEPTIONS. Indictment of the form following, (omitting formal commencement and conclusion.) The jurors for said state upon their oath present that William W. Leavitt, of Auburn, in the county of Androscoggin, and state of Maine, laborer, on the thirty-first day of October, in the year of our Lord, one thousand eight hundred and seventy-four, at Auburn aforesaid, in the county of Androscoggin aforesaid, two oxen of the value of one hundred and eighty dollars, one horse of…

On EXCEPTIONS. Assumpsit on an account annexed, and a count for money had and received. To sustain the count for money had and received, the plaintiff offered two notes, signed by the defendant and witnessed. One of the notes was dated August 31, 1836, payable on demand; and the other was dated Sept. 12, 1836, payable in six months. The statutes of limitations were pleaded — both the six years and the twenty years limitations.

<p>On exceptions, at the April term, 1876.</p> <p>Both plaintiff and defendant having deceased, the plaintiff’s administrator appeared; a citation issued to Eben Leach, administrator of the defendant, returnable at this term, to appear and take upon him the defense of the action. Leach appeared specially under protest, and said, “that this action was entered in this court at the January term, 1874; that thereafterwards Fulton died, and his death was duly suggested upon the docket at the April term, 1874; that thereafterwards, and before the appearance or appointment of any administrator • of said Fulton, Jane Nason died,, and her death was duly suggested upon the docket at the October term, 1874.</p> <p>Whereupon he says that he cannot take upon himself the defense of this action, because no action is pending, and no statute compels his appearance therein.”</p> <p>The presiding justice overruled the protest, and ruled that Leach appear. And Leach alleged exceptions..</p>

ON exceptions from the superior court. Case for malicious prosecution.

On exceptions from the superior court. Case, for damages, for injuries received, through a defect in a highway, February 26, 1875. On the point of notice required by c. 215, of the acts of 1874, the plaintiff testified that on March 24, 1875, he went into the store of Mr. Bray, one of the selectmen, and said to him, “I shall claim damages of the town for injuries received in the back, on the Sylvester Paul road. He asked me how much.

On exceptions from tbe superior court. Debt on a judgment of the supreme judicial court of New Hampshire, to which the defendant pleaded nul tiel record, concluding to the country, with a brief statement, among other things, that the judgment was rendered without notice, and that the court had no jurisdiction. The plamtiff demurred to the plea because it concluded with an issue to the country, instead of a verification ; he made no answer to the brief statement.

<p> Evidence. Tender. Trial. Contract. </p> <p>When a party signs his name to an instrument by himself as attorney it has the same binding force and effect as if he simply signed his name; and his authority as attorney will be presumed without proof.</p> <p>The same result will follow if he thus adopts his name previously signed by another.</p> <p>In the absence of any suggestion of fraud a party is conclusively presumed to know the contents of a paper to which he has subscribed his name as a party.</p> <p>A tender required by a contract will be waived by the party in whose favor it was required, by any words or acts on his part showing that it would not be received or denying any liability under the contract.</p> <p>A party waives his right to a jury trial by a suggestion to the court that its rulings have left nothing for the jury to pass upon, provided such rulings have been in accordance with the law.</p> <p>A power of attorney and the written contract entered into by virtue of such power, though executed at the same time, are not necessarily to be'construed as one paper.</p> <p>In the absence of any ambiguity in the contract, or any reference to the power, the contract is to be construed by its own terms, and the power is to be referred to only to show the nature and extent of the authority conferred.</p>

On exceptions, to tbe allowance of an amended award of referee. Tbe exceptions to the order of recommitment are stated in 65 Maine, 95. A bill in equity, inserted in a writ of attachment, dated June 10, 1871, for tbe redemption of a mortgage described in tbe bill of complaint, was referred by rule of court at the January term, 1874. The referee at the April term, 1874, made report that the plaintiff was entitled to redeem the defendants’ mortgage.

On EXCEPTIONS, from the superior court. Case, under act of 1872, c. 63, § 4, for selling intoxicating liquor by means of which the plaintiff’s wife became intoxicated and he injured. The justice instructed the jury, if the liquors were sold by the defendant to Mrs. Flynn, and she without any knowledge on the part of the defendant gave it to the wife of the plaintiff whereby she became intoxicated and committed the damage, that the defendant was not liable.

(ON exoeptions, from the superior court. A prior bill of exeep-‘tioius was before the court, stated in 62 Maine, 533. Trespass, for taking and carrying away thirty-four casks of intoxicating liquors, submitted to the. justice under a plea of the general issue, with right of exceptions.

<p> Poor debtor. </p> <p>Where the statute provides that the sureties in a poor debtor’s bond, E. S., e. 113, § 24, may he approved in writing by the creditor; held, 1. That such approval by his attorney of record is sufficient. 2. That where the firm name of the creditors was “Joseph H. Poor & Brother,” and the approval was by their attorney of record in the form following: “The above bond is approved by us, Poor & Brother by T. T. Snow, attorney:” It was sufficient. A fulfillment of the first of the three conditions in E. S., c. 113, § 24, to “cite the creditor before two justices of the peace and of the quorum, submit himself to examination, and take the oath prescribed in § 30,” demands that the debtor follow the statute implicitly in all its requirements.</p> <p>Thus: where the citation did not correctly give the date of the judgment or the term of the court at which it was rendered and the certificate followed the citation in its errors and contained a new one, incorrectly stating the amount of the judgment; held, that the first condition was not complied with.</p> <p>It would seem that either of the enumerated errors would be fatal.</p> <p>In order to confer upon the defendant, in an action on a poor debtor’s bond, the right to have the actual damages assessed by the jury, under E. S., c. 113, § 52, it must appear that the justices who allowed the oath had jurisdiction.</p> <p>Thus: wheré the citation to the creditor, which is the foundation of the jurisdiction of the justices, did not correctly describe the judgment in the bond; held, in an action thereon that the court had no power under E. S., c. 113, § 52, to reduce the damages.</p>

<p> Action. </p> <p>Where a statute giving a remedy neither expressly nor by implication takes away a remedy previously existing, the statute remedy is cumulative and the party may pursue either.</p> <p>Without the statute of 1871, c. 186, a railroad company (like an individual) would be liable to a city or town for the amount of damages which such city or town had been compelled to pay by reason of a defect in one of its streets caused by the negligence or unlawful act of such company in the construction or maintenance of a railroad crossing on such street; and if the company had been properly notified of the original suit, and the suit was defended by the city in its behalf and on its request, it would be liable for the costs as well as the damages.</p> <p>There is therefore sufficient consideration for a contract on the part of the railroad company with the city for the defense of such a suit, and for a promise to repay the city such sum as it should be compelled to pay therein. An action of debt will lie upon a simple contract as well as upon a specialty.</p>

On agreed statement oe eacts sufficiently appearing in the . . opinion. r Debt to recover a state tax. Piea nil debet, with a brief statement that the statute, by authority of which the. tax was assessed, is in conflict with the provision of their charter and of the constitution of this state and of the United States in this, that it impairs the obligation of the contract in their charter.

On EXCEPTIONS. Assumpsit on a writing given by the defendants to save the plaintiff harmless from all indebtedness of a firm composed of the plaintiff and James P. Dudley — the name of the firm being “Thompson & Dudley.” Subsequently to the execution of the writing, judgment was rendered against the plaintiff in this court in Somerset county, on a note signed, “Thompson, Dudley & Co.” Plaintiff claimed that this note was an indebtedness of the late firm of Thompson & Dudley,…

<p> Life insurance. </p> <p>A pressured a policy upon his life “for the benefit of Ms wife and children” and had it made payable to them and died intestate. Held, that the policy will not go to the administrator as assets; bnt to the beneficiaries by virtue of the contract and not by descent.</p> <p>In the absence of any provision in the policy making an unequal division of the proceeds the payees will take equally.</p> <p>E. S., c. 75, § 10, applies only when the policy is payable to and becomes ■ assets of the estate; in which case neither the widow nor heirs can maintain an action for their respective share of the proceeds, but must seek their remedy in the probate court.</p>

<p> Landlord and tenant. </p> <p>The complainants, by lease under seal, leased to the tenant certain described premises at a specified rate for a year, and then added the following words: “We further agree to lease to said Young, (the tenant) said premises situated in Farmington village at the price and conditions named as long as he wishes to occupy the same. The said Young agreeing to take good care of premises and not to suffer them to go to waste more than the natural use of the same.”</p> <p>Held, 1. That remaining in possession at the expiration of the year was an election that the tenancy was to continue.</p> <p>2. That this was not to be regarded as an agreement for a lease, but that " it operated as a lease upon the election of the tenant to remain.</p> <p>Parol evidence is admissible to show that a lease relied upon was fraudulently obtained.</p>

On exceptions, to the exclusion of evidence and on motion of the plaintiffs to set aside the verdict, which was for the defendants. Case, to recover money obtained of the plaintiffs through a conspiracy of three defendants wherein they defrauded the plaintiff company by procuring from them a policy upon the life of a person far gone in pulmonary consumption, representing that at the time of procuring the policy she was in health and free from any disorder.

Bill in equity, to determine the construction of a will. Timothy Bragdon died testate, leaving no widow and leaving two sons, George W. and Aaron E. Bragdon, his only heirs-at-law, both married and having children. By his will, after making bequests of $100 to each of his sons, $250 among his granddaughters, and $100 to others, in all $550, the residuary clause reads thus: “Eighthly.

<p> Divorce. </p> <p>Under K. S., c. 60, § 19, a decree by tbe court granting a divorce, giving the custody of the minor children to the mother, may be subsequently changed by the same court, if the circumstances require, by an addition thereto ordering the father to pay a certain amount for their support.</p>

Oh report. Writ of ENtry. Plea, nul disseisin. Both parties claim title under one William S. Dunham; the plaintiff, under a mortgage deed, dated October 14, 1868, and recorded January 24, 1874; the defendant, under a mortgage deed, dated May 29,1872, and recorded June 3,1872.

ON exceptions to tbe overruling of a general demurrer to tbe declaration. Debt on a judgment of tbis court in Oxford county, recovered at the March term, 1867, in favor of Sullivan 0. Andrews against these two' defendants, brought in the name of the plaintiff as assignee of one Bisbee, who was the assignee of Andrews, alleging assignments, but not alleging that the assignments were in writing, and no copy of assignment being filed with the writ.

On exceptions. Case, for loss of life of Mrs. Hannah Blake, the plaintiff’s intestate, May 14, 1874, through a defective bridge, while she, with her husband, who was then living, but has since deceased, was removing from Oxford to Hebron. The.defective bridge was across the inlet of Matthews’ pond, a small stream dividing Hebron and Oxford.

<p> Promissory notes. </p> <p>The plaintiffs conveyed by deed to the defendant a part of two patent rights, with a condition in the deed that the sale was to he and become void upon a default in either or any of the payments. At the same time and as a part of the same transaction, the defendant gave the notes in suit for part payment of the price.</p> <p>Held, 1. That the condition in the deed was for the benefit and security of the vendors, which they alone could waive, and could not bo given in evidence as a defense to an action upon the notes.</p> <p>2. That an oral agreement to extend the time of payment of the notes for a good consideration, till tlie defendant could make the money out of tke “cloth.es pin business,” if made at the same time and as part of the contract evidenced by the notes, was not admissible in defense to an action upon them.</p> <p>3. That if such oral agreement was subsequent to and independent of the contract as shown by the notes, it would be admissible only by showing also that the defendant had used due diligence to make the money, or that such diligence would be useless, and that upon this point the burden was upon the defendant.</p>

On report to the full court, to settle law and fact on so much of the evidence as legally admissible.

’On'exceptions and motion. Case, for injury to plaintiff wife through defective town way January 15, 1874. The case was on trial nearly a week and resulted in a verdict for the plaintiffs of $275, which they moved to set aside for inadequacy, as against law and evidence. They also filed the following bill of exceptions. ■ “_Z£.

ON FACTS STATED. Assumpsit, for pauper supplies furnished Arabella Estes and her five children: John G., Sylvester B., Hannah E., (legitimate;) Eugene and Mary M., (illegitimate.) Flea, general issue with a brief statement that the notice was insufficient, (not stating the names of the children,) and that Ara-bella with her five children had her home in Hamlin’s Grant plantation at the time of, and more than five years next preceding, the annexation of that plantation to the…

<p> Railroad. Trial. </p> <p>In an action on the case against a railroad company to recover damages sustained by a passenger, through the alleged fault of the servants of the defendant corporation, at the trial of which it was claimed that the fault consisted in whole, or in part, of a violation of the established rules of the company, a book containing the rules and regulations of the company, and intended for the use of their employees, to direct them in the discharge of their duties, is admissible in evidence.</p> <p>Where the issue before the jury is upon the negligence of the parties, and the testimony upon the points in controversy is conflicting or uncertain, it is not erroneous for the presiding judge, after stating to the jury in language to which no exception is taken the degree of care required on either side and that the plaintiff’s right to recover depends upon proof to their satisfaction that the injuries were received by the fault of tbe defendants, without fault on the part of the passenger contributing to the result, to decline upon request to determine as matter of law whether a certain state of facts, claimed on one side to exist and denied on the other, would or would not constitute negligence.</p> <p>In such case the presiding judge is not required to anticipate every possible phase of disputed facts and determine in regard to each of them whether negligence, on the one side or the other, does or does not result therefrom as a legal conclusion ; but may properly leave it to the jury to say under the rules of law given whether, upon the facts as they find them, any want of reasonable care on the passenger’s part contributed to produce the injury.</p>

ON REPORT. Replevin of twenty packages of wool of tbe value of $1050, belonging to the plaintiff, from tbe defendant by a writ served 'August 19, 1875.

<p> Assumpsit. </p> <p>In an action ol assumpsit for the value of earth taken from the plaintiff: ’s land by a railroad company’s engineer for the construction of their road, submitted to the Cull court to settle law and fact, where the defense was, that the taking was tortious, and not under a contract, and the evidence was, that the engineer asked permission of the owner to take the earth, and there was no evidence of any reply, the full court found there was a contract, and ordered judgment for the plaintiff for damages.</p>

On report. Assumpsit, for $2000 for labor done and materials furnished, in the fall of 1872, under a contract signed by a committee of the defendant town, in the improvement and repairs of their town house. A part of the improvements was the adding of an upper story for a hall for the use in part of a dramatic company in consideration of certain aid in the repairs.