Volume 67 — Maine Reports

<p> Bankruptcy. </p> <p>Assumpsit against F. and another, to recover a debt provable in bankruptcy and for which the defendants were jointly liable. Prior to the commencement of the action, F. had become adjudged a bankrupt, but had not received his discharge. Held, that the plaintiff, on proper suggestion of the bankruptcy, might strike the bankrupt’s name from the suit, without costs, and prosecute his action against the other defendant. R. S. c. 82, § 47.</p>

On exceptions. Covenant broken. The writ alleges a breach of the covenants of seizin and good right to sell and convey contained in a deed of warranty from the defendant to the plaintiff, dated June 1, 1866, of a lot of land in Lewiston, described as follows: Beginning on the westerly side of Horton street at the northeast corner of land this day conveyed by me to the Franklin company ; thence westerly, at right angles with said Horton street on the northerly line of said…

On exceptions, at tibe April term, 1877. Debt on a poor debtor bond. William F. Stanwood, one of the defendants, on oyer of the bond, set ont the same at the September term, 1876, and demurred specially; and the demurrer was joined by the plaintiffs. The other defendants severally pleaded the general issue at the same term.

Bill in equity, to redeem a farm in Gorham, from a mortgage by Merrill W. Mosher to one David D. Thorn and his assigns, to secure the payment of $2500, in one year from date, May 1,1871, with interest; the right of redemption having been assigned to the complainant by Mosher, by his deed of March 30, 1874.

On exceptions. In a plea of land, wherein the said John Furbish, in his capacity of executor as aforesaid, demands against the said Robert Kobertson one messuage with the appurtenances, situated in said Brunswick, and bounded as follows, viz: Beginning on the north side of Pleasant street at a stake; thence northerly, parallel to and five and a half rods distant from the east line of land formerly owned by Humphrey Given, about twenty rods, to land formerly owned by John…

On report. Petition for a writ of certiorari, to bring up and quasb the proceedings of throe justices of the peace and quorum, in admitting Charles V. Brann to the benefits of tlie oath provided in B. S., c. 113, § 30. The petition did not set out the record or assign errors apparent therein; but did recite minutely and at length the judgment, execution, its delivery to the officer, and proceedings thereon, embracing the proceedings before the three justices.

On report. Case, in tort, for obstructing entrance to plaintiffs’ wbarf in Portland, by solid deposits of sewage. The plaintiffs are a corporation established and holding wharf property, in Portland, by virtue of Private Laws of 1850, c. 415, of Private Laws of 1857, c. 98, and of Private Laws of 1871, c. 661.

<p>On report, from the superior court.</p> <p>Complaint, for violation of tlie liquor law, on appeal from the municipal court of Portland.</p> <p>On May 5, 1873, William Weeks, the defendant, was appointed by the mayor of Portland, by and with the consent of the aider-men, agent of the city to sell liquors for mechanical, medicinal and manufacturing purposes, under the provisions of § 26, c. 27, B. S., and upon giving bond as provided in § 27 of the same chapter, received the certificate mentioned in said section and entered upon the duties of his situation. The next year he was appointed to the same situ ation by vote of the board of mayor and aldermen, gave bond according to law, received the proper certificate and continued to act. From the date of Weeks’ appointment in 1873 to the date of the complaint, no successor had been appointed except Weeks himself; but on May 3, 1875, the mayor nominated Horace J. Bradbury to the position, and the aldermen refused, 5 to 1, to confirm the nomination, and subsequently, on June 8, 1875, the board of mayor and aldermen, by a vote of five to one at a regular meeting, appointed the defendant agent for the sale of intoxicating liquors under § 26, c. 27, B. S. This was done against the protest of the mayor, and without his consent. Weeks gave the proper statute bond, which was approved by the board of mayor and aldermen, who thereupon issued and delivered to Weeks the certificate required under § 27 of said chapter, and Weeks continued to act as agent. The mayor refused to sign the certificate and protested against the approval of the bond.</p> <p>The complaint in this case was for a single sale made by Weeks under his claim to act as liquor agent, and was in all respects lawful, if he was agent.</p> <p>Upon this report of facts, the question whether Weeks was the duly appointed and qualified agent of the city, for said purpose at the time of the sale, is reserved for the decision of the law court.</p>

<p> Damages. </p> <p>The plaintiff contracted with the defendants to play first old man and character business for thirty-six weeks. At the close of the nineteenth week, the defendants discharged the plaintiff without fault on his part, who commenced an action for breach of the contract during the next week. Held, that the action was not premature; held, also, that the plaintiff was entitled to recover as damages for the remainder of the term at the stipulated rate, less what he actually earned or might have earned by the exercise of reasonable diligence, with interest; that having obtained another contract within the line of his profession within the time of his original contract with the defendants, the sum which he might have earned thereby to the time when his contract with the defendants expired, should be deducted from the contract price with the defendants.</p>

<p>On exceptions, from the superior court.</p> <p>Assumpsit for money had and received, to recover back $293.17 paid under protest to redeem certain real estate from a mortgage.</p> <p>While the suit was pending a deposition was taken on the part of the plaintiff out of the state by commission and duly placed on file. This deposition contained an important reference to the book of accounts of the late Frederick Merrill, which book was in the possession of the plaintiff After this deposition had been filed, and before trial, notice was duly served on the plaintiff under the rule to produce the book. When the deposition was offered at tbe trial, the question and answer which contained, among other things, this reference to the book, was objected to by the defendant. The objection was sustained and the question and answer wholly stricken out. During the progress of the trial, and after the offering of the deposition, the book of accounts lying upon the table, the counsel for the defendants asked the counsel for plaintiff to let him see it. The counsel for the plaintiff asked the counsel for the defendant if he called for the book and, upon his assenting, granted the request; and the counsel for defendant saw the book and examined it, and nothing more.</p> <p>On account of this examination the counsel for the plaintiff claimed that this book was made evidence and should go to the jury. The court thereupon recalled so much of the deposition as related to the book and was explanatory of certain entries therein which had been stricken out, and admitted it and admitted the book.</p> <p>It is conceded that the only entries on the book which were admitted were pertinent to tbe case.</p> <p>The presiding judge, among other things, instructed the jury as follows:</p> <p>The defendant says that in 1853 his father and he purchased some timber of the Winslows and gave $850 for it; that they purchased it jointly, equally interested in the results of the transaction; that he paid $250 towards it in gold ; that three notes were given of $200 each, payable in one, two and three years; that after making the cash payment himself, entirely out of his own money, as defendant says, then the two notes which matured earliest, the one and two years notes, were paid out of the proceeds of the Winslow timber; that before the third note became due, the Winslows wishing to realize upon the note and as the defendant and his father were not ready to advance the payment of it prior to its maturity, the note was sold to Henry Gallison; that subsequently the defendant by labor performed upon the barn of Gallison, and by materials furnished, and perhaps in some other way in which he states, paid his one-half of that third $200 note, and that it was indorsed upon the note as paid by his hand, and that note he claims has not been produced here at the trial. °</p> <p>So that the defendant claims two of the notes were paid out of the joint proceeds of the timber purchased, and that he had paid his one-half of the third note, leaving his father’s half, due and unpaid, and that this one-half subsequently went into the mortgage; that the father gave this mortgage to secure the payment of it. But the defendant says nothing was ever received by him as remuneration for the $125, gold, which he had paid in cash for his father at the time of the cash payment towards the Winslow timber ; and he says from 1853 down to the date when the ship timber was'delivered to him for the brig, which was in the winter of 1863-é, he had never received from his father any payment of the amount so advanced in his father’s behalf, and that when he came to build this brig, he told his father it would require all his property to build his quarter of the brig, and asked his father to deliver to him this ship timber in payment of the $125, and interest, he had advanced so long before for the benefit of his father, towards the purchase of the Winslow timber.</p> <p>That, briefly stated, is an outline of the case which the defendant presents, and it may perhaps aid you somewhat in bringing the case down to the precise limits where the controversy lies.</p> <p>Now you perceive that the investigation of a question like this is. beset with many difficulties. The lapse of time, the fact that the parties have reduced so little of the transaction to writing, the fact that so much must depend on the credibility and accuracy of witnesses speaking of remote transactions, is of course a consideration which clearly indicates the difficulty of arriving at the true facts of a transaction of this sort.</p> <p>* # #</p> <p>In this case, as has been stated by counsel, it will be important for you to observe the acts of the parties, whatever there is of record, whatever there is that is probable or improbable in the statement of witnesses, what was their apparent intention in regard to it, and whatever there may be to guide you in arriving at certain and correct results.</p> <p>In regard to these three notes, which it is said on the part of the defendant were given for the purchase of the Winslow timber, I think you will find upon examination of these two notes which have been introduced in evidence here, that if the notes were given on one, two and three years, or about that time, that they were to fall due in about one, two or three years, or something near that time; then that the first of the series — the one that fell due in one year — is missing and not the one that fell due in three years.</p> <p>The notes which are produced here are dated in January, 1853. The first note produced here falls due in one year from the last day of February, 1851, which would be February, 1855. It is dated in January, 1853, so that it falls due in a little more than two years after its date.</p> <p>The second note is the same date, January, 1853, and falls due in one year from , 1855, and therefore falls duo in 1856, a little more than three years from its date. So that if the defendant is correct in his statement, that three notes were given towards the payment of the Winslow timber, and is correct that they fell due in about one, two aud three years, then he could not be correct in his statement that the third note is missing, and that an indorsement of his half is on that note. The two statements cannot be correct: which is correct is for you to determine.</p> <p>“In regard to the Winslow notes, Mr. Merrill, the defendant, says the notes were given on one, two and three years. If he meant one, two and three years from date, then of course your Honor is right; but if he meant payable one year apart, that is, one, two and three years from a future date, then I suggest to the court that there is no discrepancy in the defendant’s testimony.’</p> <p>In addition thereto, if the Gallison mortgage was not given for one-half of that note, what was it given for ?”</p> <p>Court : “I don’t think I will change the ruling in regard to that.”</p> <p>The verdict was for the plaintiff; and the defendant alleged exceptions.</p> <p>I. I examined the book with no reference to its being evidence. The gratification of my curiosity did not make the book evidence.</p> <p>II. I object to the phrase, “as stated by counsel.” Whenever a judge uses this phrase, the jury immediately determine which counsel and, having determined, they at once put the judge upon that side and, so not to be at variance with the judge, put their verdict upon the same side.</p> <p>III. The judge argues the case upon the Winslow notes, and starts out with “I think.” The jury, as is their custom so in this case, substituted the thoughts of the judge for the testimony. In this part of the charge, he interpolated not intentionally the word “about.” The testimony was “the notes were payable in one, two and three years,” not “about.” True the notes were not payable in any exact number of years from the date, but from a future time, and so the judge interpolated the word “about.” The witness only intended to testify to the fact that the notes were payable in a certain number of years, not from date, but from a future time, and were payable one jmar apart; and in this view, his testimony was correct and his defense made out; and yet the judge told the jury that his testimony in regard to the missing note could not be correct, and caused them to believe that the defendant had willfully falsified and threw distrust over his whole defense and lost him his case.</p> <p>1. The plaintiff had the right to put in the book. It would give an unconscionable advantage, to enable a party to pry into the affairs of liis adversary for the purpose of compelling him to furnish evidence against himself, without at the same time subjecting him to the risk of making whatever he inspects evidence for both parties. 1 Grreenl. on Ev., § 563. Penobscot Boom v. Bamson, 16 Maine, 224. Blake v. Buss, 33 Maine, 360. The rule applies even where the party calling is mistaken as to the contents of the instrument called for. Clark v, Fletcher, 1 Allen, 53. The book being in evidence, it became the duty of the court to admit so much of the deposition as was explanatory thereof. There was nothing that the defendant was aggrieved by in the admission. The law court will not presume in favor of the exceptions. Webster v. Folsom, 58 Maine, 230.</p> <p>II. The exception to judge’s charge. No evidence is reported. No facts involved in the case are presented except as shown in the charge. The court will not presume error. McOriUis v. Hawes, 38 Maine, 566. Weal v. Paine, 35 Maine, 158. Beemanv. Law-ton, 37 Maine, 543. Whidden v. Seelye, 40 Maine, 247. There was nothing reported in the evidence to show that question of the notes was material.</p>

On Exceptions from the superior court, at the April t.ei'm, 1876. Trespass on the case. Writ dated February 10, 1876, entex-ed at the March term, 1876. The defendant filed a general demurrer to the declaration at the March texun, 1876. The demui’rer was overruled, and to that ruling at the April term the defendant alleged exceptions.

On exceptions, from the superior court. Assumpsit, for the price of a quantity of butter, $170.96. The amount and price of the butter were admitted as alleged in the writ. The defendants claimed that the butter was warranted to be of a certain quality, and that a portion of it was not of that quality, and claimed a reduction in the price on that account.

<p> Insv.ro,nee. </p> <p>A policy indorsed by the company, “Non-forfeiting life policy,” contained these terms: “it being understood and agreed that if after the receipt hy this company of not less than two or more annual premiums this policy should cease, in consequence of the non-payment of premiums, then upon a surrender of the same, provided such surrender is made to the company within twelve months from the time of such ceasing, a new policy will he issued for such sum as is proportionate with the annual payments which have been made.” Held, that the right of the assured in the policy did not depend upon the surrender of the policy and the taking out of a new paid up policy. The provision that the policy shall cease and determine upon the non-payment of any of the annual premiums, on or before the date specified, cannot he construed as defeating the right to recover thereon such proportionate part of the amount insured, while there is an express stipulation in the same condition that upon such failure of payment, the company will not be liable f or-tho whole sum insured, but only for sucli proportionate part.</p> <p>Cancellation of the policy upon the books of the company without the knowledge and consent of the assured cannot affect his rights. Upon a policy, like this, distinctly made non-forfoitable in part, by partial non-payment of premiums, nothing in the application looking to an avoidance of the policy and a forfeiture of premiums by such non-payment, can be received to work sueli forfeiture.</p>

<p>On exceptions, from the superior court.</p> <p>Assumpsit, on a written contract, to recover royalty under a license, dated August 25, 1874, for the years from 1874 to 1878, inclusive, given by plaintiffs to defendants, upon what is known as, the “Green com patents.”</p> <p>The case presented by the plaintiffs was that the defendants had taken the license from the plaintiffs to make use of letters patent of the United States, No. 34,928 and No. 35,274, and had agreed to pay twenty-five cents for every dozen of cans of green corn packed; and that during the year 1875 the defendants packed 33,830 dozen of cans, for which they refused to pay.</p> <p>The defenses set up were in substance these :</p> <p>1. That the letters patent in question were void for want of novelty, that there was therefore no consideration for their agreement to pay license fee.</p> <p>2. That they had received no benefit or advantage for their license and that there was therefore no consideration for their agreement.</p> <p>3. That at time of the granting of this license the plaintiffs had knowledge of certain English letters patent, subsequently held by the supreme court of the United States, to anticipate the letters patent in question; that such knowledge on the part of the plaintiffs, (although shared by the defendants) made this contract void by reason of legal fraud.</p> <p>The counsel for the defendants offered the record in the case of Jones v. Bewail, to which the plaintiffs’ counsel objected.</p> <p>The presiding judge ruled these defenses insufficient, and in the matter of the offer said :</p> <p>“ The precise question which has been argued now, is in regard to the admissibility of the record in Jones v. Bewail. Objection is made upon two grounds: First, that it is not between the same parties as in this suit; that it is merely conclusive against Jones, so far as Sewall is concerned; Second, that the invalidity of the patent is no defense to the present case.</p> <p>“ In regard to the first ground, I understand the law of this state to render the record admissible, so far as that objection is concerned. It is a suit to which Jones is a party, and where the question of the invalidity of the patent was directly raised. So he had an opportunity to be heard upon that question before a court having jurisdiction. I am aware that formerly there was a different rule, but I understand the decisions of this state to be that the record is admissible against Jones in any proceeding to which he is a party, where the precise question determined by the court is involved.</p> <p>“ So that so far as the first ground of the objection is concerned, I shall rule that the record is admissible.</p> <p>“It is then claimed that it is immaterial, and affords no defense to the prosecution of this suit. To determine that question, I apprehend it is necessary to consider somewhat the position of the parties at the time this contract was made, so far as it appears from the evidence in the case.</p> <p>“I understand it to be conceded that at the time of the execucution of this contract, in August, 1874, this proceeding in equity to determine the validity of the patent was then pending, known to all parties to the suit to be pending; that at that time the decision of the circuit court of the United States had been rendered sustaining the patent, which fact was also known to the parties to this suit. From that decision appeal had been taken to the supreme court of the United States, so that no final judgment had been rendered. I understand it further to be conceded, that upon- that appeal final judgment was rendered, declaring the patent void for want of novelty, but rendered subsequent to the packing of the corn for the year 1875, by the defendants.</p> <p>“Returning to the date of this agreement, in August, 1874, the plaintiffs were holders of the letters patent claiming they were valid. There were controversies pending, but a preliminary decision had been rendered in favor of the patent itself. Jones was in the position of a man claiming to have the legal right to hold letters patent, and control the manufacture of this patented article. They were asserting their rights, claiming they were legal and valid.</p> <p>“ The defendants then were in a position where they could adopt either one of two courses. They could treat the patent as invalid, and proceed to manufacture the article in defiance of the patent, and abide the consequences, whatever they might be.</p> <p>“The second course was to make some arrangement with the person holding the apparant legal right to the patent, by which they could manufacture the article by his consent, without subjecting themselves to damages in case the patent was sustained. This course the defendants adopted. They made an agreement by which they were to pay twenty-five cents a dozen as a royalty to holders of the patent.</p> <p>“ Leaving out the question of fraud, which is open to the defendants if they propose to establish it by any competent evidence, tbe question arises here, whether, under the pleadings, the defense of want or failure of consideration of the contract has been sustained, or whether this record of the supreme court tends to sustain such a defense.</p> <p>“ In my view of the case it does not. I think the consideration which the defendants received was the right to manufacture the patented article during the year 1875 without fear of legal proceedings being instituted against them, and purchasers from them were protected from any litigation. In my judgment, that is a snfcient legal consideration for the contract itself; and I shall rule in the absence of proof of notice or any act tending to terminate the contract, and in the absence of fraud, that corn packed by the defendants under this process, prior to tbe decision of the supreme court, must pay the royalty in accordance with the terms of the agreement.</p> <p>“ I therefore, upon the immediate question, rule that this record is admissible if the defense propose to connect it with competent evidence of fraud in the original contract; otherwise not admissible.”</p> <p>After the introduction of further evidence the judge said : “I shall rule as matter of law, that there is no evidence here of fraud, no evidence of any facts known to Jones, that were material, that were not known to Burnham at the same time ; and if known to both parties there can be no fraud.”</p> <p>The judge then ordered the jury to render a verdict for the plaintiffs for the full amount claimed. That verdict was for the plaintiffs, for $8,556.16; and the defendants alleged exceptions.</p>

On exceptions from the superior court. Trespass on the case, for that, on the thirtieth day of November in the year of our Lord eighteen hundred and seventy-four, at said Brunswick there was an open way leading from the old turnpike road, so called, and from a point near tlie dwelling house of the plaintiff to a point in the highway leading from Brunswick village to Bath, near to Haines’ brook, which said way was crossed by the railroad of the defendant corporation upon the…

On exceptions, from a ruling affirming a decree of the judge of probate. On the third Tuesday of May, 1867, on the application of Mary A. Merrill, widow and executrix of the last will and testament of Frederic Merrill, deceased, representing that a certain claim made by Paul E. Merrill, (appellee) son of said Frederic, was exorbitant, the judge of probate, in accordance with the provisions of the St. of 1859, c. 115, (it.

<p> Executors and Administrators. </p> <p>The executrix, a residuary legatee, instead of the bond required by the statute in such case, gave the bond required of an ordinary executor, containing conditions not required by the statute of an executor, who is also a residuary legatee and omitting an important condition required in such case. It imposed burdens upon the executrix more onerous than the statute enjoins, and if the additional matter was rejected as surplusage, there was not enough left to meet the requirements of the statute.</p> <p>Eeld, 1. That it could not therefore be enforced as a statute bond.</p> <p>2. That it might be sustained as a bond at common law, so as to give legal effect to the appointment of the executrix, and to afford security for all interested in the estate.</p> <p>3. That, as such,"it could only be enforced according to the rules of the common law; that the obligors were not subject to the penal provisions of the statutes, and were liable only for the actual damages resulting from a breach of the conditions of the bond.</p> <p>4. That the action could not be maintained in the name of the present plaintiff, as the bond was given to his predecessor in office; that the statute authorizing the successor of a judge of probate, to whom'the bond is given, to maintain an action in his own name, applies exclusively to bonds given in conformity with the statute.</p>

On exceptions from the superior court. Indictment for keeping and for aiding in the maintenance of a nuisance. The verdict was “guilty on the first twelve counts” and “ not guilty on the thirteenth and fourteenth countsand the defendant alleged exceptions, as in the opinion appear.

On exceptions from the superior court. Indictment for felonious assault. To the indictment, which was not signed by the prosecuting officer, the defendant demurred. The demurrer was joined by Charles F. Libby, attorney for the state, for the county of Cumberland, and overruled by the presiding judge, who then ruled on the offer of the county attorney and against the defendant’s objection that he might affix his official signature to the indictment.

On exceptions from the superior court, and motion to set aside the verdict. Trespass for assault and battery, committed by the defendants upon the person of the plaintiff, at Bryant’s Pond, July 18, 1876, by reason of which the plaintiff, as he said, received serious injury to his person, causing him great pain and sleepless nights, obliging him to resort to blisters upon his arms, and subjecting him to outrage to his person and public degradation.

<p>On eagts aoireed.</p> <p>Debt, brought under the provisions of chapter 232, of the public laws of 1874, to recover a tax claimed to be due and unpaid.</p> <p>The amount of the tax assessed is $875, on real estate and $1,625 on personal estate ; total, $2,500.</p> <p>No question is made as to the legality of the tax otherwise than is indicated in the facts following :</p> <p>The Portland Water Company’s charter was amended by the legislature of the state of Maine by chapter 364 of the special acts of 1867. The contract of March third, 1868, called an ordinance to authorize the Portland Water Company to supply the city of Portland with pure water, may be referred to and made part of the case. July 28,1870, an order was duly passed by the city council of the city of Portland, of which the following is a copy: “Ordered that the property of the Portland Water Company in this city be exempted from taxation for live years.” The tax in question was assessed April, 1874. Under this order and the provisions of its charter, and the additional acts and contract above referred to, the Portland Water Company claim to be exempt from the tax assessed.</p>

On exceptions from the superior court. Assumpsit, commenced March 6,1876, entered at the April term 1876, and tried by the justice without the intervention of a jury, at this February term, 1877, subject to exceptions in matters of law. Ad damnum, $60.

On exceptions from the superior court. Assumpsit on the following agreement: “Portland, Dec. 11, 1874.

Bill in equity for the reformation of a bond given in the sum of $2000, September 20, 1869, for the conveyance of certain real estate.

<p>On exceptions from the superior court.</p> <p>Assumpsit on an account annexed, to which an account in set-off was seasonably filed.</p> <p>The writ was dated September 26, 1870, and was entered at the October term following.</p> <p>At the January term, 1877,°the counsel for the defendant filed a motion to dismiss this action because all matters involved in this suit and account in set-off had been referred to certain referees and in support thereof introduced the following agreement to refer :</p> <p>“State of Maine, Cumberland, ss. Supreme Judicial Court.</p> <p>George Hearne vs. Daniel Brown.</p> <p>“ In the above entitled cause, commenced by writ dated September 26, A. D. 1870, and returnable to said court on the second Tuesday of October, A. D. 1870, and now pending therein, the parties hereby agree to refer all matters, charges, accounts and claims involved therein, and for which said action was brought, as also all matters, charges, accounts and claims involved in the account in off-set filed in said cause to Samuel L. Carlcton and Melvin P. Prank, as referees and arbitrators; who are to decide the same by law and equity, and they are to be sole judges of the law and facts, giving to them also power to choose a third person in case they should fail to agree; the three, or a majority of them, to have the same authority hereby given to said Carleton and Prank. The report and decision of said referees is to be final, and</p> <p>to be reported to court and judgment entered thereon, which judgment is to be final, and no exceptions, appeals or writs of error, are to be taken to the same or to any of the proceedings. March 15, 1871. (Signed) George Hearne. (Seal). Daniel Brown. (Seal).”</p> <p>On the hearing upon the motion at the April term following, the plaintiff offered, subject to objection, the written resignation of M. P. Prank, one of the referees, dated March 27, 1877, and the written revocation of the reference by the plaintiff, dated March SO, 1877.</p> <p>Upon these facts, the presiding justice ruled pro forma, as matter of law, that the reference and such action as was taken by the referees operated as a discontinuance, and dismissed the action, to which ruling the plaintiff alleged exceptions.</p>

On exceptions from the superior court. Assumpsit to which no defense was made. The contention was as to the liability of the alleged trustee, on whom the writ was served, March 23, 1875. At the May term, 1875, he disclosed as follows: “On November 11,1874, Robert Pennell was the owner of one-eighth of the ship Martha Bowker, and conveyed it to me, for which I was to pay him the sum of $1000. I made two payments of $300 and $244 in cash.

On report from the superior court. Case, setting out in substance and in extended legal form and phraseology that the defendants were common carriers of passengers ; that the plaintiff purchased two tickets, one of the following form : “163. Issued by Grand Trunk R. R., and Boston & Maine R. R., Portland to Boston. Yalid only within seven days. First class. Form 39.

On exceptions and motion from the superior court. Case for injury to plaintiff’s horse from defective highway. Plea, not guilty, under which, evidence was introduced tending to show that the plaintiff was racing the horse, and matching it for speed at the time its leg was broken. Upon that point, Judge Symonds instructed the jury as follows: “ Highways are only to be safe and convenient for travelers.

<p> Trover. </p> <p>Trover lies against a person who removes a quantity of fence from the land of its owner, although such person was acting at the time under the direction of town officers and mistakenly supposed the fence to be upon the land of the town.</p>

On exceptions. Trespass for taking a yoke of oxen. There was evidence tending to show that ¥m. Tarbox held a note against Joseph Collins; that he had a writ thereon put into the hands of the defendant, as deputy sheriff, and went with him to Collins’ place ; that the defendant there informed Collins that he was directed to attach the oxen, and that Collins thereupon “ turned out” or delivered the oxen to Tarbox with the agreement that if Collins should pay Tarbox the amount…

On report. Assumpsit on a note of the following tenor: “Wilton, April 28, 1868. For value received, 1 promise to pay Stephen Osgood or order nine hundred dollars on demand and interest. (Signed) James 0. Miller. Surety, N. It. Miller, John Miller. (Indorsements) July 4, 1871. Rec’d thirty dollars on the within note. May 1, 1873, Rec’d on the within two hundred and sixty-three S0-100 dollars.

On exceptions. Assumpsit on a note for $85, dated November 2, 1874, payable to the plaintiff on demand.

<p> Insurance. Pleading. </p> <p>A stipulation in a policy limiting tlae time for commencing suit upon it to twelve months after the occurrence of the loss, being in conflict with E. S., c. 49, § 62, is nugatory. Nor does the setting forth of such a stipulation in the declaration, nor the omission to refer to the statute which abrogates it, vitiate the declaration or indicate a waiver by the plaintiff of his legal rights under the statute.</p> <p>The declaration contained the following averment of notice of loss: “That forthwith after the happening of the said loss and damage, to wit on the [blank] day of [blankj A. D. 181 [blank] he then gave notice thereof to the defendant, and as soon thereafterwards as possible, to wit, on the [blank] day of [blankj 181 [blank] then delivered to the defendant as particular an account of the said loss and damage as the nature of the case would admit; which said account was signed by the plaintiff, and accompanied by his oath, that the same was in all'respects just and true, and showed the value of said property, and in what general manner the said building was occupied at the time of the happening of the said loss and damage, and the name of the person then in actual possession thereof, and when and how the said fire originated, so far as the plaintiff knew or believed, and his interest in the said property at the time; to which said account was annexed, and therewith delivered, a certificate under the hand and seal of a [blank] nearest to the place of Are, to wit, [blank] showing that he, the said justice had examined the circumstances attending the said fire, and the loss and damage alleged, and was acquainted with the character and circumstances of the plaintiff, and verily believed that the plaintiff had by misfortune, and without fraud or evil practice, sustained loss or damage on the said property to the amount of $350.” Held, on demurrer, that it was fatally defective, because it did not allege either the notice and prpofs required by the policy, or those which are declared by K. S. c. 49, § 20, to be sufficient.</p>

On Report. Writ of Entry, dated September 12, 1876, to recover possession of a piece of land in New Vineyard. The defendant pleaded the general issue with a brief statement “that since the commencement of this action the'plaintiff has convoyed away all the right, title and interest he ever had to the premises.” The plaintiff introduced a mortgage deed from Geo.

On exceptions and motion. Replevin in two cases tried together, wherein the defense was in one case that the sheep and lambs, in the other, the cow, were the property of John S. French, from whom they were taken by the officer on execution against him in favor of the defendant, and that they were not the property of the plaintiffs, the wife and son of the said John S. French; that the pretended gift by him to them of the lamb and calf, the origin and progenitor of those…

On exceptions. Assumpsit for money had and received. The case comes up by appeal from the decision of the commissioners of insolvency, rejecting the claim of the plaintiff filed against the estate of Bezaleel White, of which estate the defendant was administrator. By consent of parties the action was referred. At the hearing the plaintiff was sworn, and claimed the right to testify as a witness. The referee ruled as matter of law that he had no such right, and excluded him.

<p> Deed. Estoppel. </p> <p>A grant of a township of land upon condition that the grantee settle thereon a specific number of families within a specified time, is a grant upon a condition subsequent.</p> <p>A conveyance upon a condition subsequent vests the title in the grantee subject to its being revested in the grantor by entry for breach of the condition.</p> <p>When one claiming title to land stands by,'and, without objection, knowingly suffers another to execute and deliver a deed thereof to an innocent purchaser who believes he is obtaining the legal title thereto, he is thereby estopped to set up title thereto against the successor of such purchaser.</p>

<p>On exceptions.</p> <p>Assumpsit, on account annexed on a bill of items commencing May 24, 1866, and ending September 3, 1868, amounting to $223.57, on which no credit was given. The writ was dated November 21, 1874.</p> <p>Plea, statute of limitations.</p> <p>Replication, a prior writ seasonably made on the same, demand and a failure of service by unavoidable accident, setting out in substance that, September 2, 1874, the plaintiff sued out a wilt against the defendant on account annexed for $75, for a balance of the same account sued for in this writ; that he mailed it at Dix-field, on Monday, November 14, to the deputy sheriff at Oxford, in season for it to reach Oxford on that day; that there was a daily mail between Dixfield and Oxford, and that the time of service did not expire until midnight of the next day after which the letter should have arrived at Oxford by due course of mail, and that the letter did not reach the deputy sheriff in season for service. To the replication the defendant demurred, because the failure of service was not an unavoidable accident, but in consequence of the negligence of the plaintiff' or his counsel, and because the demand named in the second writ was not the same demand named in the first writ.</p> <p>The presiding justice overruled the demurrer and adjudged the replication good; and the defendant alleged exceptions.</p> <p>distinguished the case at bar from Bullock v. Dean, 12 Met. 15. In that case, the court said “the creditor seasonably commenced his suit, and placed his writ, as he believed and had good reason to believe, in the hands of a proper officer for service. But by mistake he described the residence of the debtor as he had known it, and as it was until a short time before, when he had changed it to another town and county, of which it does not appear the plaintiff had any knowledge, and which the officer, who was charged with the service, did not seasonably discover.” A very different case from the one at bar.</p>

On exceptions. Replevin of a yoke of oxen, a cow, a horse and a wagon. The defendant pleaded title in himself to the oxen, cow and wagon, and tliat the horse belonged to the estate of his deceased wile (which bad not been administered upon) and that she left children, and denied the title or right of possession of the plaintiff, and introduced testimony tending to prove the truth of his plea.

On REPORT. Writ oe entry, demanding the same part of premises described in a levy on execution in favor of the plaintiff and against the defendant. The plea was the general issue with a brief statement that the levy was void because the defendant’s house-lot had been severed and divided, and then a fractional part thereof set out, not of the whole estate, as the statute requires. A plan of the premises makes part of the case.

<p>Bill in equity, to remove cloud upon title.</p> <p>The bill alleges that the plaintiff, the widow of Obadiah Stover, in the spring of 1868, was and ever since has been possessed in her own right, in fee simple, of a farm in York in the county of York, where she has resided for about fifty-seven years ; that her daughter and daughter’s husband, these defendants, claimed title in said land by virtue of a deed which they claim to have had from the plaintiff, September 16, 1868; that the oratrix never signed, sealed, executed and delivered any such deed to her knowledge; that the first she heard of it was about a year before her husband’s death, when her son Edward told his father that Mark, the defendant, had such a deed; that the father laughed at him and said that he had never given any such deed; that the oratrix knew that she never gave any such deed ; that after her husband’s death, she was shown a bill of sale of the personal property to Mary, the defendant, in 'consideration of $1100; that neither she nor her husband ever received any money from her daughter; she knew she had never signed or made any such paper. On inquiry she was informed of the following facts: That when sick in 1868, and under the doctor’s charge and unconscious, under the influence of opium depriving her of all knowledge of what was happening, a certain paper was brought into the house by Mark Poole, and her husband was asked to sign ; he asked what it was; Mark said it is no matter, you sign; and he signed the deed without reading it or hearing it read and without any knowledge of its contents. After he signed it, it was taken to the bed and your oratrix was held up in bed, and unconscious of what she was doing, Mark Poole was standing by the side of her bed, and her signature was thus obtained without her knowledge and contrary to her wish and desire, without any reading of the paper in her presence and without any knowledge on her part of its contents. Mark Poole thus obtained the pretended deed of real estate and bill of sale of per sonal property to his wife, fraudulently and without the knowledge or consent of the oratrix. The bill states that the oratrix is desirous to sell lots of land to various parties, the same being desirable for summer residences, and that by reason of the fraudulent deed she cannot sell; it closes with a prayer that the pretended deed and cloud upon her title may be set aside and removed as fraudulent and void.</p> <p>The answer was in substance that the title to the real estate came from a brother of the female defendant, who on his deathbed and in contemplation of death, gave a deed of it to his mother with the understanding and request that it be conveyed, at or before her death, to his sister and her husband, the defendants ; that her mother being confined to her bed with a dislocated hip, but in full possession of her mental powers, voluntarily made and delivered the deed in question ; that both the deed and the bill of sale were freely, fully, properly and understandingly executed and delivered by said Mindwell, who then knew, whether she now remembers or not, the exact nature, contents, purport and effect of each of said instruments, etc.</p> <p>The deed in question under which the defendants claim, was dated September 16, 1868, signed, Obadiah Stover and Mindwell Stover, witnessed, acknowledged and recorded; and omitting formal commencement, close, description of premises and clause of qualified warranty, was of the following tenor :</p> <p>I, Obadiah Stover and Mindwell Stover, wife of Obadiah Stover, both of York, in the county of York and state of Maine, in consideration of the sum of two thousand dollars paid by Mary L. Poole of York in said county, the receipt whereof we do hereby acknowledge, do hereby remise, release, bargain, sell and convey, and forever quit claim unto the said Mary L. Poole, her heirs and assigns forever, all onr right, title and interest in and to a certain tract of tillage, pasture and wood land lying in said York and being our homestead farm, and being the same which we now occupy and bounded as follows......meaning to convey all our real estate which we now own in said York, containing one hundred and twenty acres more or less, with the buildings thereon, reserving to ourselves the use and improvement of the same during our natural lives, being the same conveyed by ^Samuel H. Stover to Mindwell Stover per deed dated April 23,1867, recorded in the York registry, book 303, page 373. To have and to hold the same with all the privileges and appurtenances thereunto belonging to the said Mary L. Poole during her natural life and then to her husband Mai’k Poole, their heirs and assigns forever.</p> <p>At the May term, 1876, issues were framed for the jury which they returned with the following answers :</p> <p>1. Was the said deed and bill of sale freely and voluntarily executed and delivered by Mindwell Stover, and was she at the time of the execution and delivery thereof of sound mind and legal capacity to convey her estate and property ? Answer, yes.</p> <p>2. Were the deed and bill of sale procured by any fraudulent practices of the respondents or either of them or any person in their behalf? Answer, no.</p> <p>3. Were the said deed and bill of sale and each of them executed by said Mindwell Stover with a knowledge of their contents and purport ? Answer, yes.</p> <p>4c. Was said deed freely and voluntarily executed and delivered by the said Mindwell knowing and understanding its contents and legal effects ? Answer, no.</p> <p>5. Was the said bill of sale freely and voluntarily executed and delivered by the said Mindwell knowing and understanding its contents and legal effect ? Answer, no.</p> <p>Other facts, and the points raised by counsel appear in the opinion.</p>

<p> Probate court. </p> <p>The heirs of the intestate have no right to appeal from the decree of the judge of probate accepting the report of commissioners under c. 115, of the statutes of 1859. (K. S. c. 64, § 51.)</p> <p>Neither can they appeal in the name oí the administrator, without Ms knowledge and consent, or against his will.</p> <p>Such appeal is not valid.</p> <p>A payment made in accordance with an accepted report of the commissioners is properly allowed in the account oí the administrator, notwithstanding an invalid and unauthorized appeal has been taken by the heirs at law in the name, but without the knowledge or consent, and against the will of such administrator.</p>

<p>On exceptions to the ruling and order of the presiding justice iu a trial without the intervention of the jury, with the right of exceptions.</p> <p>Assumpsit on a note of the following tenor: “$200. Biddeford, Maine, September 11, 1871. Due Samuel Bean two hundred dollars, for value received: (Signed) O. D. Dolliff.” The signature and delivery of the note were admitted.</p> <p>The defendant offered in evidence the disclosure of the plaintiff in a trustee process, whereupon the plaintiff objected to any evidence tending to show any agreement different from what the due-bill purports to be. The justice decided he would hear such evidence as was offered and then consider its legitimacy. The substance of the plaintiff’s disclosure in the case of Sanford et ais v. Andrews, and Bean, trustee, was: That ¥m. Gr. Andrews was owing one Hill; that Hill had sued Andrews upon the claim and trusteed Bean, (the plaintiff in this case). Bean held in his hands the sum of two hundred dollars belonging to Andrews. Andrews, fearing the money would be attached by other creditors in Bean’s hands, desired to have it transferred into the hands of Dolliff. This, the plaintiff Bean was unwilling to do, unless Andrews should furnish him some security against the Hill claim upon which he had been trusteed.</p> <p>In his disclosure he said: “Finally I agreed to pay over the $200, provided he would'bring forward some responsible party that would agree to see this matter settled with Capt. Hill. I agreed to it and turned the money over to Dolliff, who gave ine his due-bill for the money. This due-bill was my receipt for the money, and was to be returned to him or destroyed when the matter was fixed.”</p> <p>The defendant, Dolliff, testified : “He (Bean) asked me to give him a writing to secure him against the Hill suit. I answered that I would give him a ‘due-bill’ as it was quicker done and more convenient. I did so. My note was given to secure him against the Hill claim.”</p> <p>It was agreed that the Hill matter was settled on the same day the note was given and the money paid. The evidence tended to show that the settlement was about eleven o’clock, A. M.; that at about 3 o’clock P. M. the writ, Sanford v. Andrews and trustee, was served upon the plaintiff, who afterwards disclosed how he held the due-bill in question. He was, however, adjudged trustee and therefore brought this suit. Other facts appear in the opinion.</p> <p>The presiding justice, “upon the foregoing testimony,” ordered judgment for the defendant; and to the foregoing rulings and order the plaintiff alleged exceptions.</p> <p>I. This instrument is a good promissory note. Garner v. Hayes, 47 Maine, 257. Franklin v. March, 6 N. H. 364. Legueer v. Prosser, 1 Hill, (N. T.) 256. Oummings v. Freeman, 2 Humph. 143.</p> <p>II. When an agreement is reduced to writing, the writing must be taken as exclusive evidence of the understanding of the parties. Ohit. on Con. 102. Galpin v. Atwater, 29 Conn. 93. Hoyt v. French, 24 N. H. 198, 203. Erwin v. Saunders, 1 Cow. 249.</p> <p>III. In an action upon a note which is absolute on its face no evidence can be introduced of a parol agreement that it should only be paid in a certain contingency. Hunt v. Adams, 7 Mass. 518. Adams v. Wilson, 12 Met. 138. Underwood v. Simonds, 12 Met. 275. Tower v. Richardson, 6 Allen, 351. Gurrier v. Hale, 8 Allen, 47. Ounningham v. Wardwell, 12 Maine, 466. Boody v. Me Kenney, 23 Maine, 517. Badcock v. Steadman, 1 Hoot, 87. Rose v. Learned, 14 Mass, 154. George v. Harris, 4 N. H. 533. Swank v. Nichols, 24 Ind. 199. Schurmeier v. Johnson, 10 Minn. 319. Fry v. Blackstone, 31 111. 538. Myers v. Sunderland, 4 Greene, (Iowa) 567.</p> <p>Parol evidence is not admissible to show an agreement that the note should be given in an event which has happened. Tower y. Richardson, 6 Allen, 351. Henshaw v. Dutton, 59 Mo. 139. Shaw v. Shaw, 50 Maine, 94.</p> <p>The evidence of both parties shows the due bill was delivered as collateral security against the Hill claim, and that the Hill claim was settled months before this action was commenced; that the plaintiff was notified of the settlement on the day it was made. These facts are legitimate evidence and do not vary, control or change the terms of the written instrument declared upon. They show an extinguishment of a right of action upon a note thus delivered.</p> <p>They establish an independent contemporaneous agreement to secure which the note was. given and the full execution of the agreement.</p>

<p>On report.</p> <p>Case against the defendants as common carriers.</p>

<p>On exceptions.</p> <p>Assumpsit for supplies claimed to have been furnished by the plaintiff to the wife and minor child of defendant, from June, 1871, to June, 1871, $2,883. Verdict for the plaintiff. It was in proof and not controverted that during the earlier part of the time included in the account, the wife of defendant was lessee for her own life, at a nominal yearly rent, of a dwelling house, valued at $3000, fully furnished, (furniture valued at $1000) in Lebanon, in this county, with three or.four acres of land; that during the currency of plaintiff’s account defendant’s wife was owner in fee of said property, not received from her husband or his. relatives, and just prior to the beginning of the furnishing the support charged for in the largest item of plaintiff’s account, said property was conveyed by deed in usual form by defendant’s wife, without money consideration, to the plaintiff, who, it was claimed by plaintiff, held the same under such conveyance, and in trust only created for Mrs. Shapleigh’s children, then, and ever since, and still holds the same. *</p> <p>The defendant requested the court to instruct the jury that</p> <p>1. “Plaintiff cannot recover for any alleged necessaries furnished to defendant’s wife, while she (defendant’s wife) was the owner of a dwelling-house and land, which she omitted to appropriate to the relief of her necessity.</p> <p>2. “Plaintiff cannot recover for the support of Mrs. Shapleigh or son, furnished after and while she had in her hands the Lebanon property, without applying the same or its proceeds toward payment thereof.</p> <p>3. “If the admitted value of property conveyed without consideration, actually paid, by Mrs. Shapleigh to plaintiff, exceeded the amounts of the items for $850, and the succeeding item for $100, plaintiff cannot recover here for any part of these items.”</p> <p>These instructions, and each of them, the court declined to give, and gave no equivalent instructions.</p> <p>It was claimed by defendant that the articles in proof, as having been furnished by plaintiff, comprising among others a silk dress costing $50 or over, a flannel dress, costing over $30, were not reasonably suitable in kind, quality, or quantity, and he requested the court to instruct the jury that</p> <p>4. “If the articles charged for in plaintiff’s account were not reasonably suitable in kind, quality, or quantity, plaintiff can not recover therefor even so much as would have supplied suitable articles.”</p> <p>This the court declined to give, but did instruct the jury that although the articles actually furnished were not reasonably suitable in kind or quality, defendant would be liable for the price of articles reasonably suitable in kind or quality.</p> <p>It was in proof that the largest item of the account accrued while journeying in Europe, and defendant requested the instruction,</p> <p>5. “No part of the expenses of the trip to Europe, or the board or support, or clothing .furnished during and while on that tour can be recovered here, because they cannot constitute necessaries.”</p> <p>This the court declined to give, but permitted the jury to find, under this item, such a sum as was equivalent to reasonable expenses of board and clothes at Lebanon.</p> <p>The verdict was for the plaintiff; and the defendant alleged exceptions.</p>

<p> Action. </p> <p>In general, assumpsit as on a promise implied by law is not an appropriate remedy in eases of delinquency of a public officer. A special action on the case or, in some cases, debt is the proper form. But, aside from this, proof that the defendant as town treasurer received moneys of the district is not sufficient to maintain an action to call it out of his hands without proof of delinquency on his part or even of demand before the commencement of the action.</p> <p>Nor can the plaintiffs in this action recover an unpaid district tax assessed against the defendant.</p> <p>The money which accrued from the sale of the old school-house and stove belonging to the district, was shown to have been finally disposed of in accordance with the vote of the district, and in payment of its debts. Held, that the fact that it wont through the defendant’s hands contrary to the vote of the district before reaching its destination did not make the defendant responsible to the district a second time for it.</p>

On exceptions, in two cases considered together. Indictment, for keeping a drinking-house and tippling-shop; also an indictment for being a common seller of intoxicating liquors. The exceptions are the same in both cases. To sustain the issue the government introduced evidence tending to show the sale of an article called “Stanley’s Hop Beer.” This article the government contended was a malt liquor within the meaning of K,.

On exceptions and motion. Complaint in bastardy process, declaring that she was on the 23d day of August, 1875, delivered of a bastard child begotten by the said George F. Knight; that the said child was begotten at the house of John Carroll in the town of South Berwick, sometime between the 25th day and 30th day of November, 1874; that being put upon the discovery of the truth at the time of her travail, she accused the said George F. Knight of being the father of said…

On exceptions. Indictment for keeping a drinking-honse and tippling-shop from March 1, 1875, till the finding of the indictment, at the September term following ; also an indictment -for being a common seller of intoxicating liquors. Two cases covering the same time, supported by the same evidence and followed by the same verdict and exceptions, considered together.

<p> Husband and wife. Married woman. </p> <p>Where an action is against husband and wife for a tort committed by the wife, the liability of the husband necessarily follows from the existence of the marital relation, and when, by the pleadings, this is not disputed, a verdict that the wife is guilty disposes of the whole issue raised by a joint plea of not guilty.</p> <p>The presumption, that in case of tort committed by the wife in the presence of the husband the wife acts under coercion, is not conclusive; and when it is repelled, the wife is responsible for wrongs done by her in his company.</p> <p>The ancient doctrine of the common law, that a married woman cannot be a trespasser by prior or subsequent assent, is so far modified by our statutes giving them the power to manage and control their own property, that as to all acts done in their name and behalf for the enforcement of their supposed rights in such property, they are responsible, like other parties not under disability, for what they authorize or ratify.</p>

On exceptions. Debt: “For tbattbe said Edmund N. Goodwin, on the first day of April, A. D. 1874, at said York, was an inhabitant of said town of York, and liable to taxation therein, and then and there was the owner and in possession of real estate lying within said town, and then and there was the owner of personal property; and then and there Samuel P. Young, Almon H. Merrow and Joseph H. Moody were the duly elected and legally qualified assessors of the said town of York…

On Report. Forcible entry and detainer: “For that the defendant at Saco, on the twenty-ninth day of August, A. D. 1874, having before that time had lawful and peaceable entry into the lands and tenements of the plaintiffs, situate in said Saco, to wit: a portion of the bridge of the plaintiffs situate near the street in said Saco, known as Main street, and near the station of the plaintiffs’ railroad in said Saco, and whose estate in the premises was determined on tho…

<p>On report.</p> <p>The case was made up at the May Term, S. J. 0., 1877,, and thus stated:</p> <p>“ Samuel Whitten, of Saco, in said county, died testate, seized of real and personal estate. Bradbury Seavey was appointed administrator, with will annexed, April 7, 1868, and gave bond in usual form, with Lucinda Whitten, Charles Hill and David Tux-bury as sureties. Penal sum, $30,000. Seavey settled his first account December 8, 1868, leaving apparently $10,625.19 in his hands.</p> <p>“ He filed his second account in October, 1871, and notice thereon was duly issued and proved. By this account there would appear to be something over $7,600 balance in his hands at that time.</p> <p>“August 19, 1876, suit was commenced in the name of the judge of probate, by a party claiming to be interested, upon the administrator’s bond, and is now pending. On August 19, 1876, the real estate of Tuxbury was attached upon the writ in that suit, and upon August 23, 1876, a further attachment of his personal property was made on the writ. At the time of the commencement of the suit, Hill and Lucinda Whitten had deceased, Hill being insolvent. Service in the suit is made only upon Tux-bury, Seavey being then a resident of the state of Florida and for more than two years previous.</p> <p>“ Hpon the first Tuesday of September, 1876, a person claiming to be interested in the estate of the testator, petitioned the judge of probate to order the said administrator to charge himself with the sum of $1000 as interest, profit and income derived from said estate, and to require an immediate settlement of his second account, and also filed a petition for the removal of the administrator.</p> <p>“ Hpon notice the administrator came in by attorney, and verified his account by proper vouchers, and also appeared to show eause why he should not be charged with the amount of $1000, as prayed for in said petition.</p> <p>“At the December term, 1876, of said court, the judge of probate ordered and decreed as follows :</p> <p>“ ‘ State of Maine, York, ss. Probate Court, December Term, A. D. 1876. On the foregoing petition, the same having been duly .considered, it is decreed that said Bradbury Seavey charge himself with interest on the balance of his first account, deducting subsequent payments, the amount of said interest being $3207.66.</p> <p>Nathaniel Hobbs, Judge.’</p> <p>“December 18, 1876, Tuxbury, claiming to be a person interested and aggrieved, appealed from said order and decree, and upon the same day duly filed his reasons of appeal and bond as required by law. Thereupon, his appeal was allowed and proceedings staid.</p> <p>“ At this term of the court, after seasonable and due service of the reasons of appeal, Tuxbury entered his appeal.</p> <p>“ For the purposes of this hearing, it is agreed that Seavey is insolvent and pecuniarily worthless, and was at the time of the commencement of the suit upon said bond, and for a long time before.</p> <p>“ Either party may have any of the documents referred to copied as a part of the case.</p> <p>“ The case is reported for the decision of the law court, upon the foregoing evidence or so much thereof as is admissible. The court are to determine whether the appeal shall stand or be dismissed.”</p> <p>under various positions, cited Peering v. Adams, 34 Maine, 41; Pierce v. Irish, 31 Maine, 254; Thurlotigh v. Chick, 59 Maine, 395; Farrar v. Parker, 3 Allen, 556 ; Boynton v. Pyer, 18 Pick. 1: Smith v. Sherman, 4 Cush. 408, 409 ; Poñne v. Goodvoin, 56 Maine, 411. He endeavored to discriminate this case from Woodbury v. Hammond, 54 Maine, 332. The surety in that case claimed an appeal from the allowance of an account which his principal had filed and was putting himself at issue with his principal; and there was no suit pending and no attachment of the surety’s property in that ease.</p>

On Exceptions. Assumpsit on several promissory notes, in each of two cases, presenting similar facts and the same legal points, submitted to the presiding justice and tried together without the intervention of a jury, with right of exceptions. .The second count of the first writ was in this form: “Also for that the said defendant, at said Biddeford, on the fourteenth day of October, A. D. 1875, by his promissory note of that date by him subscribed, for value received,…

On report. Writ oe entry to recover possession of a certain parcel of land containing twenty-five square rods, which, together with their old school lot of about ten square rods, comprises their new schoolhouse lot and on which is erected their new school-house.

On report. Case against a sheriff, setting out that the plaintiff recovered judgment against Frederick W. Stimson for $113.73 debt, and $33.61 costs of suit, at the September term, S. J. 0. 1871, and sued out an execution tlierefor, October 8, 1871, returnable January 8, 1875 ; tbat the plaintiff delivered the execution at the day of its date to the defendant to be executed and returned according to tbe command therein given; that the plaintiff at the time of delivering the…

On report. Petition for increase of damages for land taken by railroad company. Damages were awarded in favor of petitioners by the county commissioners of Aroostook county, October 12, 1875. A petition for increase was seasonably filed, a jury was summoned and empaneled and met at Port Fairfield August 29,1876.

<p> Town. </p> <p>A municipal corporation is not liable for tbe torts of its officers committed under color of tbeir official capacity.</p>

On eepoet. Case to recover $20,000, subscription to the capital stock of the plaintiff company, alleging a completion of the road and a demand and refusal to pay the subscription, which was in accordance with the following vote of the inhabitants of Brewer at a meeting held December 5,1871: “That the selectmen be and are hereby authorized and instructed to subscribe twenty thousand dollars to the capital stock of the'Peno bscot and Union River Railroad Company, on the…

On report. Case. For that heretofore, to wit, on or about the 5th day of September, A. D. 1869, at Hancock in said county, the said defendants maliciously intending to oppress and imprison the plaintiff and to deprive her of her liberty did then and there conspire and act and agree together with others to charge and accuse the plaintiff with being a crazy and insane person and a fit subject for imprisonment in the insane hospital or asylum situated at Augusta, being an…

<p> Mortgage. </p> <p>A mortagee entering the mortgaged premises peaceably and openly under E. S., c. 90, § 3, must continue in the possession the three following years to effect a valid foreclosure, c. 90, § 4.</p> <p>The lapse of twenty years after a debt secured by a mortgage becomes payable is sufficient evidence of payment in the absence of any countervailing considerations.</p> <p>This presumption of payment may be rebutted.</p> <p>A lease from a mortgagee received by a mortgager more than twenty years after the maturity of the mortgage debt is not admissible to rebut the presumption of payment to affect the rights of a subsequent mortagee.</p> <p>Where, in a writ of entry, both parties claim under different mortgages from the same grantor, held, that the evidence of the defendant that the mortgage and note, under which he claims, came into his hands as residuary leg- ■ atee from six to ten years after the note was overdue, and that nothing had been paid on the note after he received it, with the production of the note and mortgage, is not sufficient to rebut the (twenty years’) presumption of payment.</p>

On motion of the plaintiff to set aside the verdict, which was for the defendants, as against evidence, also on motion for a new trial on the grounds of surprise at the trial, and of newly discovered evidence. Case for injury from defective highway, Sunday, May 28, 1871. The way was a bridge by Smith’s carding mill in defendant town. The alleged defect was that the planking of the bridge was some four or five inches higher than the level of the earth in the road.

Case, for negligence, brought by the plaintiff as administrator of the estate of Emery It. Ward well against the defendant company for negligence in forwarding the sum of $24.90 which was delivered to one Charles W. Tilden, agent of the defendants at Castine, May 8, 1873, to be forwarded toF. H. Beale at Belfast, Maine, agent of the Continental Life Insurance Company of the city of New York.

On report. Replevin for a horse and pair of oxen valued by agreement of parties at $500. The writ was dated and served September 22, 1875.

<p> Trial. </p> <p>The provisions of R. S., c. 106, § 8, which requires that venires for grand jurors, to serve at the supreme judicial court, shall be issued forty days at least before the second Monday of September annually, is directory merely to the clerk of the court in the matter of time, and not a limitation on his power to issue.</p> <p>A venire issued after the expiration of the tíme named in the statute, but in season for service by the proper officer in accordance with the provisions of the statute, is valid.</p> <p>The attorney general has the power to enter a nolle prosequi, to the whole or any part of an indictment, without the consent of the prisoner, either before a jury is empaneled or after verdict. If after verdict, and the indictment is sufficient, it will be a bar to any new indictment for the same offense.</p> <p>Since the act of 1876, c. 114, which reduces the punishment for murder in the first degree from death to imprisonment for life, in an indictment for murder, the prisoner has the right to challenge but two jurors peremptorily. The right of challenge is regulated by the grade of punishment by R. S., c. 184, § 12.</p>

On report. Writ of entry, (omitting unnecessary particulars) of a lot of land on the east side of Obio street, Bangor, beginning at a post in the fence ; thence, north M° J2‘ east, by the fence to a stake 150 feet at right angles from said street; thence, southeasterly parallel with said street to a point in the rear line of the lot where a straight line shall intersect it drawn through the middle of the double tenement house, the north tenement of which is occnpied by the…

On exceptions -and motion. Assumpsit on account annexed for balance due on stumpage of logs, cut by Edward Perry, in 1872-3 on township A, range 5, $1520.11, 17-64 only claimed in this action, $403.77. Also a count for money had and received. The plaintiffs put into the case a permit, dated August 21,1872, from Ilenry E. Prentiss and others, each for his own share only, to Edward Perry, to cut and remove timber with certain conditions and restrictions.

On report. Case : For that, whereas, there now is, and for a long time has been, a public highway in the town of Brewer aforesaid, known and designated as Stone street, and that whereas the county commissioners at, &c., 1873, did, according to the statute provided in such cases, define and say upon what conditions the said Bucks-port & Bangor Railroad Company, might lay their track and build a crossing across said street as follows, viz: “The crossing of Stone street, in…

<p> Railroad. </p> <p>A mortgagee, out of possession, whose mortgage is recorded, should he made a party to proceedings instituted by a railroad company before county commissioners to ascertain the damages of land owners for land taken for its road.</p> <p>Where no notice is given to the mortgagee, and the damages are awarded and paid to the mortgager, the mortgagee may recover therefor in an action of trespass against the company by virtue of the provision of R. S., c. 51, § 6.</p>

On exceptions and motion. Case, in substance, that the plaintiff was possessed of about 700 M. feet of logs in the Penobscot river, fastened to posts and trees $ that the river is a public highway; that the defendants on or about July 10, 1873, carelessly and unlawfully obstructed the channel in violation of their charter, at a point just below where the-plaintiff’s logs were fastened; that the boom remained one month, during which timé the plaintiff was prevented from…

On exceptions. Case under R. S., c. 113, § 51. The declaration set out the parties and the debt due the plaintiff from one Tyler R. Wasgatt, jr., for $41.87 and the items of property alleged to be fraudulently transferred from Wasgatt to the defendant in a form to which no objection was taken, and concluded as follows: “All of the value of fifteen hundred dollars, and being so indebted to the plaintiff in the sum aforesaid, said Tyler R. Wasgatt, jr., did with intent to…

On report.. Case, uader B. S. c. 14, § 1, which provides: “When auy person is, or has recently been, infected with any disease dangerous to the public health, the municipal officers of the town where he is, shall provide for the safety of the inhabitants, as they think best, by removing him to a separate house if it can be done without great danger to his health, and by providing nurses and other assistants and necessaries, at his charge or that of his parent or master, if…

On exceptions. Search and seizure. The respondent was tried upon his appeal, and the jury found a verdict of guilty. It appeared in evidence upon the trial that the complaint and warrant were drawn by Erastus B. Thomas, who was at the time deputy sheriff for the county of Penobscot, said complaint and warrant being drawn by him. for, and the complaint signed and sworn to by, Danforth L. Olark, as complainant.

On report. Assumpsit on account annexed for $127.75, the amount of a bill for silk, sold by plaintiff, a resident of Boston, to principal defendants, residents of Bangor, doing business under the name of Kelley & Martin as tailors and dealers in ready-made clothing, furnishing goods, &c. The account was dated, October 22, 1874, and service was made on the trustee, October 22 and 30, 1874, as trustee to the firm and to Kelley individually.

On report. Complaint of John Pratt, of, &c., to the police court of Bangor, September 2, 1875, that he believes on that day, at, &c., intoxicating liquors were deposited and kept by Dennis Regan, &c., closing with a prayer that if the liquors are found they be seized and Regan apprehended.

On motion of the plaintiffs to set aside the verdict, which was for the defendant. Assumpsit on a note of the following tenor: “January 2, 1871. Twelve months after date, we promise to pay to the order of the Maine Mutual Marine Insurance Co., one thousand and one dollars, payable at Bangor, Maine. Yalue received.

<p>Way — defective. Exceptions. New trial.</p> <p>If one is injured by driving or falling into an excavation in one of the public streets of a city, which is left at night without being sufficiently lighted or guarded, a recovery may be had against the city, although the excavation was made by a company engaged in constructing the public water-works of the city.</p> <p>A bill of exceptions, although signed by the presiding justice, will not be considered by the law court, unless signed by the excepting party or his counsel, as required by the B. S., c. 77, § 21.</p> <p>Although a verdict for damages is large, and, as the court fears, too large, it will not be set aside on that ground, unless it is clearly excessive.</p>

On report. Assumpsit on an acceptance of the defendant company for $1000, on which a default was entered. The writ was dated October 30, 3875, and served on the trustees, November, 1,1875. The question presented was whether the alleged trustees are chargeable as such. The trustees form a private co-partnership, doing business as expressmen between Boston and St. John, N. B., under the name of the “Eastern Express Go.,” and are not incorporated.

On report. Assumpsit on a note of the defendant company. The question was whether the alleged trustees were chargeable. Writ was dated October 21, 1875, served on Maxfield & Smith, trustees, October 22, and on principal defendants, October 23. The next day, the letter H. was inserted in the writ, making the name of one of the trustees Azro H. Jones instead of Azro Jones, as it was originally; and service was then made on Azro H. Jones.

On motions. Case by the owners of the schooner Bloomfield against the owners of the steamer Cambridge to recover damages for loss of the schooner by collision with the steamer July 2, 1874, on the Penobscot river. The evidence on the part of the plaintiffs, coming from those in the schooner and those who saw the collision from the shore, was that the schooner kept her course, as by the rule she should.

<p>On report.</p> <p>Petition eor review, as follows:</p> <p>“Waldo T. Pierce of Bangor, respectfully represents that at •the April term of the said court, A. D. 1875, judgment was rendered against him, in favor of John P. Bent of said Bangor, for $1389.19 debt, and $35.04 costs of suit, as by the records of said court appears, on which judgment execution has been issued, which is at present in the hands of his attorneys, Brown & Simpson, or the sheriff of the county, or some of his deputies, wholly unsatisfied.</p> <p>“ And your petitioner further avers, that said judgment was rendered in a suit on a verdict rendered against him at the April term, 1874, by a jury before whom the case was tried on the question of copartnership between him and said Bent, that there is, and then was, a large amount due him, said petitioner, on account as existing between them, which sum your petitioner had right to have settled as a copartnership matter, but that upon the rendition of the verdict unfavorable to the existence of such copartnership, lie at once commenced a suit on bis said claim, in order that an offset might be made of the judgments, in the two cases, notice of which suit was given to the court with the request that in case judgment should be ordered on the verdict, it might be so ordered during the term time, to the end that the action might be continued to await the decision of the new suit. But so it is, that such judgment has been rendered as aforesaid, during the pendency of said new suit in vacation, to the entire loss of the wdiole of his claim, inasmuch as the said Bent is utterly worthless, and no judgment is or will be of any value which may be recovered against bim, unless the same be off-set against the judgment and execution already rendered as aforesaid. Wherefore, inasmuch as by said proceeding, great injustice has been done your petitioner by the judgment rendered as aforesaid, to your petitioner’s great misfortune, and as he alleges by accident and mistake ; therefore your petitioner, in order that justice may be done, prays that a review of said judgment may be granted, to the end that the action may stand to await the decision of his case against said JBent, so that the two may be set off as provided by law, and as may be just and equitable.</p> <p>“ And plaintiff avers, that the amount due him from said Bent, is very much larger than his, said Bent’s, execution aforesaid.</p> <p>“Wherefore, he prays that a review of said case may be granted, and a supersedeas may be issued against the collection of said execution. (Signed) Waldo T. Pierce.”</p> <p>Sworn to June 14, 1875.</p> <p>The respondent objected that the case is one not coming, within the provisions of the law, and that the court has no power to grant its request.</p> <p>The court below granted a temporary supersedeas to abide the opinion of the full court whether the case is one provided for by law.</p> <p>urged as matter of law that the court had the power to grant his petition under R. S., c. 89, § 1, and especially under clause seventh of § 1, which reads as follows: “A review may be granted in any case where it appears that justice has not been done, through fraud, accident, mistake or misfortune; and that a further hearing would be just and equitable.”</p> <p>represented the facts to be, that Pierce wrongfully seized notes which belonged to Bent; that in an action of trover the jury had so found and the court had sustained the verdict; they said it would be vexatious to compel their client to wait the result of an action which Pierce could only sustain by proving that his own testimony as to partnership in a former suit was untrue; and contended as .matter of law that the proper action of the court in announcing their decision on the motion as soon as made was not the kind of accident or mistake in the purview of the statute.</p>

On report. Assumpsit upon two written contracts. Writ dated December 30, 1873. The first count sets out that the defendants, one as principal and the other as surety, agreed that Joseph IT. Burdick, the principal, would carry the U. S. mail on the mail route between Dexter and Bangor according to the terms, &c., setting out substantially the agreement contained in paper A, which is dated July 1, 1873, signed by Joseph IT.

On exceptions. Assumpsit. The jury returned a general verdict for the plaintiffs for $7,758.50, with special findings of damages by reason of wrongful termination of contract between Dexter and Greenville, $5,424; for wrongful termination of contract between Greenville and Kineo, $2,260 ; balance on account, $74.50. The defendants alleged exceptions, which in the opinion appear.

<p> Amendment. Bankruptcy. </p> <p>An officer by leave of court may amend his return by certifying that he kept the execution to a date later than the date named in his first return.</p> <p>The Kev. Stat. of the United States,'§ 5044, dissolves an attachment on mesne process only. It does not relate to proceedings on final process. It does not dissolve the lien created by seizure of the property of the debtor on execution.</p> <p>After judgment of this court charging a trustee, a demand by an officer on the trustee by virtue of an execution issued on such judgment within thirty days from its rendition, is equivalent to a seizure of the property of the debtor on execution, and the creditor’s lien by virtue thereof is not dissolved by the statute above cited.</p>

<p> Trial. </p> <p>A person charged with a misdemeanor, either by complaint or indictment, can be tried in his absence only at his request and by leave of court.</p>

<p> Witness. </p> <p>Evidence is,not admissible to prove the general reputation of a witness to be bad.</p>

On report. Petition for certiorari representing as follows: “That at a court of the county commissioners, for said county, held at Levant, by adjournment on November 17, 1875, the petition of Daniel Hall of said town, was presented, praying for an abatement of the taxes assessed to him by the assessors of said town, for the year 1875, and a hearing was had thereon ; and the said county commissioners upon said petition, undertook to abate said tax, and adopted certain…

<p>On report.</p> <p>Assumpsit.</p>

<p> Trial. New trial. Exceptions. </p> <p>It is within the discretion of the presiding judge to admit answers to leading questions.</p> <p>An exception that “objections to" a specified interrogatory “as defective in substance, were made before the answer was read to the jury” cannot be sustained. Objections should be specific and not general.</p> <p>The fact that irrelevant testimony was admitted against seasonable objections,</p> <p>. does not entitle the excepting party to a new trial, unless it appear that he was aggrieved thereby.</p> <p>A general exception to an entire charge, or to a series of propositions therein contained, cannot be sustained where any independent portion excepted to is sound law and applicable to the case.</p>

On exceptions. Assumpsit for a balance due on shocks, furnished under a written contract, not produced at the trial nor its absence accounted for or waived, $465.20. The verdict was for the plaintiffs, for the amount claimed ; and the defendants alleged exceptions.

On report of two actions tried together. Assumpsit for board and expenses of the stallion, Eames Knox. The first action covers the time from April 30, 1873, to August 6, 1875; and the second from August 6 to November 25, 1875. There were long lists of items of debts and credits, the justice of some of which was disputed, and of others, not; and the cases were sent to F. H. Appleton as auditor.

On exceptions at the October term, 1876. Assumpsit, on promissory note, dated November 10, 1869, for $100, payable to plaintiff on demand. Writ, dated December, 1875. Plea, general issue. Yerdict this term for plaintiff, $60.50. No question was made as to the validity of the note the verdict upon which was reduced by defendant’s account in set-off.

<p> Damages. Dedication. Way. </p> <p>When land taken for a public way is already burdened with a private right of way and an incipient dedication to the public, the owner is entitled to no more than nominal damages.</p> <p>When the owner of land within or near to a growing city or village divides it into streets and building lots, and makes a plan of the land, marking thereon the streets and lots, and then sells one or more of the lots by reference to the plan, he thereby annexes to each lot sold a right of way in the streets, which neither he nor his successors in title can interrupt or destroy.</p> <p>The location or platting of streets by the owner of land, and the sale of building lots abutting upon such streets, constitute an incipient dedication of the streets to the public, which neither the owner nor his successors in title, can afterwards revoke, although the dedication does not become complete, so as to impose upon the municipality the burden of making or keeping the streets in repair, till they have been accepted by competent authority, or been used by the public for at least twenty years.</p> <p>A cul de sae may become a public way by location or dedication as well as a street open at both ends.</p>

On exceptions. Assumpsit. The writ was dated January 3, 1870, and contained three counts stated in 60 Maine, 306. A statement of the case is also given with the findings of the referee iu 65 Maine, 566. The case was recommitted to the referee, who reported certain facts and rulings at the January term, 1877, and closed his report and award as follows : “ Upon the foregoing facts and findings I rule “ 1.

On report. Assumpsit to recover damages for breach of a written contract, signed'by the defendant, dated December 19, 1867, and of the following tenor: “ I, Manuel S. Drummond, of Bangor, in consideration of services performed by Horatio P. Blood,' of said Bangor, at my request, in exploring part' of Township No. 5, in Ninth Range in county of Piscataquis, and north of and adjoining the town of Brownville, and the same part of said township conveyed to me ■by two deeds dated…

On agreed facts. Indictment found at the August term, 1876, against the defendant company under § 36, c. 51, R. S., for causing the death of Jasper A. Roberts, at Bangor. It appeared that the acts alleged in the indictment were committed November 20, 1875 j that one Benj.

<p>On Exceptions.</p> <p>Case upon the defendants’ accountable receipt for 1945 spruce and hemlock logs attached by tbe plaintiff’, as a deputy sheriff, upon certain writs, of which that in Sheridan v. Ireland, 66 Maine, 65, was one. The writ in this case is dated November 23, 1876, and was entered at the January term, 1877, when the defendants filed a general demurrer to tbe declaration, which was joined by tbe plaintiff and overruled by the court. The defendants filed exceptions.</p> <p>Under the entry of the exceptions on the docket, the court ordered the entry: “To be argued in thirty days by tbe defendants or else judgment for tbe plaintiff.” Arguments were furnished accordingly, but were not sent around to the justices of the law court.</p> <p>On tbe first day of tbe April term, 1877, upon the consent of the plaintiff’s counsel that the exceptions be sustained, and without the consent of the defendants’ counsel, the presiding justice ordered the entry to he made on the docket: “Exceptions sustained.” On the second day, against the defendants’ objection, the justice allowed the plaintiff to amend his writ by filing a second count, setting out that the plaintiff was a deputy sheriff; that as such by virtue of seventeen certain writs, dated August 14, 1872, returnable .to the supreme judicial court then next to be held, &c., on the first Tuesday of October, 1872; in which writs the following named persons were plaintiffs and Daniel E. Ireland of, &c., and certain logs then in Penobscot river in said county were defendants, giving the names, the first of which was John Sheridan. The declaration then sets out that the plaintiff attached the logs, and at the request of the defendants delivered the logs to them, “and thereupon the said defendants executed under their hands and delivered to the plaintiff an agreement in words and figures as follows, to wit: “Penobscot ss. August 23, 1872.” ' Then follows the receipt, ipsisimis verbis, closing with the signatures. Then follows: “Whereby the said defendants then and there became liable to return said logs to said plaintiff on demand, or on failure so to do, indemnify and save harmless,” &c., but not alleging any promise.. Then follows an averment of the entry of the writ, the recovery of the judgments, the demand and refusal to return the logs and failure to save harmless, to the damage, &c.</p> <p>To this new declaration, the defendant demurred specially, assigning for causes:</p> <p>“First, that no venue or place is alleged in the said new declaration, where the said agreement therein set forth, was made by the said defendants with the said plaintiffs, or where the said causes of action therein stated, or any of them, are supposed to have accrued.</p> <p>“ Second, that no consideration is alleged in said new declaration, according to the settled and established form of expression and practice, or in any way- alleged therein, for said agreement therein set forth as made by the said defendants, with said plaintiff, or for the said causes of action or any of them set forth in said new declaration, and claimed by said plaintiff therein against said defendants.</p> <p>“ Third, that the legal purport and effect of said agreement set forth in said new declaration as made by said defendants with said plaintiffs, is not directly alleged in said new declaration, but that the said agreement is therein improperly set forth in words and figures, and that the liability and promise of said defendants thereon, by recital and reference, is in form and manner improperly, circuitously, indirectly, argumentatively and insufficiently alleged and set forth. And also that the said new declaration is in other respects uncertain, informal and insufficient.”</p> <p>The presiding justice after joinder overruled this demurrer and adjudged the new declaration or second count good; and the defendants alleged exceptions.</p>

<p> Pauper. </p> <p>The Act of 1873, c. 119, declares “that to constitute pauper supplies, under the laws of this state, such supplies shall be applied for in case of all adult persons of sound mind, by such persons themselves, or by some person by them duly authorized; or such supplies shall be received by such persons, or by some person duly authorized by them, with a full knowledge that they are sueh supplies.” Held, that the wife is a competent person to make application for supplies for herself and children, without previous authority from, or a subsequent ratification by, her husband.</p>

Bill in equity, asking the construction of the will of Bial Edes, a widow, who died at Guilford, August 15, 1874, without parents or issue. The will, dated July 8,1874, duly proved at the October term of the probate court, 1874, contains three items. The first names the plaintiff executor and provides for debts and funeral expenses.

<p> Ti'ustee process. </p> <p>The general rule, that a writ against an individual which may be fully served fourteen days before one term of the S. J. court is not properly returnable at a subsequent term, does not apply where the date of the writ and the service on a corporation named as trustee therein, are less than thirty days prior to the return day of the earlier term.</p> <p>Thus, where a trustee writ was dated February 7, 1876, served on the inhabitants of a town as trustees the next day and on the principal defendant, February 12, and made returnable to and entered at the September term instead of the preceding February term, which commenced its session February 29: Held, that a motion to dismiss was properly overruled.</p>

<p>On exceptions.</p> <p>Trover for a shingle machine.</p> <p>Yerdictfor the plaintiff for $226.10; and the defendant alleged exceptions.</p>

On report. Assumpsit for money had and received, to recover for two orders, one of $25 and another of $35, drawn by one of the nominal plaintiffs, De Proux, in the firm name of Blodgett & Co. on two debtors to the plaintiff firm in payment of De Proux’ private debt to the defendant. Plea, never promised. Blodgett testified that the order was drawn and the money applied without his knowledge or assent; De Proux testified to the contrary.

On report. Assumpsit upon the following contract, dated October 12,1857, and signed by Robert Treat: “Received of Waldo T. Peirce, by hand of George A. Peirce, a deed signed by said Waldo T. Peirce, as surviving partner of Hayward Peirce, all the interest which the said Hayward Peirce had in township No. 2, in eleventh range, Piscataquis county, said deed dated October 9, 1857, also a deed dated October 9, 1857, conveying to me and George A. Peirce, trustee of Catharine…

On report. Appeal from the decree of the judge of probate, under B. S,, c. 68, § 21. Nathan G-. Hichborn died testate. The defendant was appointed his administrator with the will annexed.

<p> Seal action. Estoppel. Trial. New trial. </p> <p>In a real action the demandant can recover only on the strength of his own title and not on the weakness of that of the tenant.</p> <p>The declarations of a party adverse to his own interest, though entitled to grave consideration, do not constitute an estoppel. They may be strong evidence of a boundary, but do not pass a title. •</p> <p>Where an instruction of the presiding justice, though correctly stating the law, is not sufficiently full, an exception thereto will not be sustained, unless further instruction is asked for and refused.</p> <p>The question as to the actual place of the division line on the face of the earth was referred. The demandant, after one of the referees had partially surveyed a line, proposed to agree upon the line as claimed by the tenants, and to pay for what he had cut on the land, if the tenants would pay the costs of the referees; the terms were acceded to and complied with, and the agreement as to the line reduced to writing and signed by the demandant. Held, that the settlement of the line and the agreement signed by the plaintiff in reference thereto, were on a good and valid consideration and binding as any other contract for such consideration.</p> <p>A new trial was not granted, where the evidence was conflicting and the cause left to the determination of the jury under a clear and impartial charge.</p> <p>A new trial, on the ground of newly discovered evidence, which, though important, would not be likely to change the result, will not be granted where the evidence if sought for could have been as readily obtained before the trial as after.</p>

. Bill in equity, submitted upon tbe following agreed statement of facts : Tbe complainant, Richard P. Buck, of Brooklyn, New York, is, and has been for some years past, the owner of 3-16 of the ship Mary Goodell. During the five years next prior to March 9, 1876, William McGilvery, late of Searsport, deceased, was agent of the ship Mary Goodell, and* in that capacity received the earnings for the owners.

On exceptions, arising on a demurrer to the declaration. Case : “ For that the said plaintiff was duly married to Edward Y. Gilmore, her late husband, thirteen years prior to the date of this writ, and lived with him till the twenty-third day of September last past, on which day he died of delirium tremens caused by excessive and habitual liquor drinking of a poisonous character, sold and furnished him principally by the said defendant, in and at his hotel situated in said…

<p> Equity. </p> <p>The legal title to land was in the defendant wife, and the equitable interest in the plaintiffs, except a portion of a certain value to be assigned to her by a master. Held, that the barn erected on the premises in controversy, during the pend-ency of the suit, became a part of the realty, and, it not appearing that it was erected by the wife, was properly included in the appraisal by the master, of the premises set off to the plaintiffs.</p>

On agreed statement. Assumpsit for money had and received. Two parties claim the money which the defendant collected as the attorney of the plaintiffs’ brother. He is ready to pay it to him or to the plaintiffs, as the court adjudge.

<p> Promissory notes. </p> <p>If a bankrupt, who is the payee of a negotiable bill or note, sells the same without indorsement before and indorses it after bankruptcy, such indorsement will - enable the holder of the note to maintain an action upon it in his own name.</p>

<p>On report.</p> <p>Assumpsit on account annexed as follows :</p> <p>Estate of Edward Hilton to Permelia A. Johnson, Dr. To♦ keeping and maintaining said Edward Hilton from 1874' to the time of his death, November 27, 1874, according to contract with said deceased, the whole of said estate, supposed to be $1000.</p> <p>The declaration also contained several other counts, the substance of which is stated in the opinion.</p> <p>The administrator returned an inventory amounting to $860.59. The estate was afterwards represented insolvent and commissioners were appointed.</p>

On exceptions. Appeal from the decision of the county commissioners, locating a highway in Belfast, on petition of F. W. Banan and others. The appeal was entered at the April term, 1875. A committee was then appointed and afterwards gave notice of time and place of hearing and view; but on account of the unavoidable absence of Asa Thurlough, one of the committee, no hearing or view was held; an adjournment for which was had to October 13, 1875.

<p> Trespass. </p> <p>"Where a tenant at will occupies a house of his own on the land of another and does not remove it within a reasonable time after his tenancy terminates, and after notice and request to do so, the owner of the land will not be a trespasser for entering and taking possession of the house.</p>

<p>On report.</p> <p>Assumpsit for pauper supplies.</p>

<p>On motion of the defendant to set aside the verdict, which was for the plaintiff.</p> <p>Assumpsit on account annexed as follows:</p> <p>Robert Burns to Warren Brown, Dr.</p> <p>Aug. 7, 1871. To Balance duo on settlement, §295.81</p> <p>31, Paid duties on Merchandise at St. Pierre, 17.55</p> <p>Sopt. 22, Freight on Cargo of Merchandise per Schooner Investigator from St. Pierre to Indian Island, M. B. Amount as per agreement, 400.00</p> <p>Freight on 260 galls, liquors from St. Pierre to Indian Island, N. B., at 20 cents per gal., per agreement, 52.00</p> <p>1 Quintal Cod fish, 6.00</p> <p>§771.36</p> <p>Cr.</p> <p>Aug. 30, 1871. By draft on you, on account, §226.00</p> <p>Sept. 22, Cash on account, 25.00</p> <p>Oct. 17, Cash on account, 205.82 §456.82</p> <p>Balance due,. §314.54</p> <p>The plea was the general issue, with a brief statement that the defendant paid the plaintiff all he owed him; that the plaintiff’s claim was for intoxicating liquors and could not be recovered by law.</p> <p>The plaintiff put in the following memorandum of settlement, dated Eastport, August 7, 1871, which he testified was in defendant’s handwriting:</p> <p>78 Oases of Gin, $312.00</p> <p>16 “ “ Brandy, 136.00</p> <p>59£ gallons of Brandy, 148.75</p> <p>87 “ “ Gin, 55.50</p> <p>30 “ “ Bum, 45.00</p> <p>$697.25</p> <p>Cb.</p> <p>By bill of goods, $193.13</p> <p>Cash, 150.00</p> <p>$52 in Gold, equal to 58.31 $401.44</p> <p>Balance due, $295.81</p>

<p>On exceptions.</p> <p>Assumpsit. The verdict was for the plaintiff for $937.33; and the defendant alleged exceptions, which are stated in the opinion.</p>

<p>On exceptions.</p> <p>Writ oe entry on a mortgage given to secure six similar notes payable in six successive years, the first of which was of the following tenor : “$252.60. Calais, October 8, 1869. One year •from date, for value received, I promise to pay Henry F. Eaton or order two hundred and fifty-two dollars and sixty cents, with interest at eight per cent, payable annually. (Signed) Frederic Boissonnault. Witness, S. II. Hutchings.”</p> <p>The defendant was defaulted; and the plaintiff moved that the conditional judgment should be rendered for the amount of the notes secured by the mortgage with interest at eight per cent per annum from the date to which it is paid to the date of the judgment, deducting the payments indorsed thereon. But the presiding justice ruled that interest should be cast at eight per cent only to the day of the maturity of each note, and thereafter at six per cent; and the plaintiff alleged exceptions.</p>

On exceptions. Trespass, specifying damages $39. The verdict was for the plaintiff for $17.07; and he alleged exceptions.

<p> Landlord and tenant. </p> <p>An action lies by a tenant of a store, being the lower story of a building, against a landlord who has the care and control of the upper stories, for an injury to his goods, caused by the rain descending through the roof down upon the store below, if the accident happens through the negligence of the landlord in his management of the part of the building upder his own control.</p>

<p> Mortgage. </p> <p>An agreement that a mortgager may retain possession of the mortgaged property until breach of condition, is not implied from a conditional clause in the mortgage, which requires the mortgager to furnish a comfortable home for the mortgagee and to furnish him necessaries and support during his natural life.</p> <p>An action for the possession of land by a mortgagee cannot be defeated by showing that nothing'was then due upon the mortgage, unless the entire conditions of the mortgage have been satisfied and performed.</p>

On report. Assumpsit on account annexed, for 79 days labor, for personal services driving logs on the St. Croix waters marked (here follow several characters difficult to print, but read by a witness as in his testimony appears) at $2.50 per day, $237.50. There was also an averment of a claim of a lien on the logs for personal services at driving and that the action was brought to enforce the lien according to the statute.

On exceptions. Assumpsit originally before a trial justice, on account annexed, for medical attendance, $16.50 “being for his professional services as a physician, and taking care of, attending and furnishing to Seth Hallowell, pauper of said town of China,” etc. The judgment before the trial justice was for the plaintiff; and the defendants appealed.

On exceptions. Assumpsit against the defendant as one of the signers on the back of a promissory note for $400. The plaintiff introduced in evidence, the note described in his writ with protest of the notary. The defendant then offered evidence tending to show that the note, since it was signed by him, had been materially altered. The plaintiff objected on the ground that no notice had been given as required by Rule X of this court.

<p> Tax. </p> <p>The wife cannot change the domicile of the husband against his will.</p> <p>‘.Where a ship-master sailed from his home in Brooklyn, December, 1866, and his ■wife shortly after came on a visit with her children and trunks to Augusta, . and there lived with her mother till summoned by her husband to meet him at ■Brooklyn, whither he returned July, 1867; Held, that he was not meanwhile i taxable in Augusta.</p>

<p>Exceptions.</p> <p>Complaint on search and seizure process, from the police court of the city of Gardiner. S. W. Siphers, constable of Gardiner, made return on the warrant. “I have entered the within named premises and therein searched for intoxicating liquors and found and seized the following described liquors,” &c.</p> <p>It appeared in evidence that Siphers was away on an excursion, when the search was made by Wing, Williams and Atkins, policemen, at about nine o’clock in the evening; that Siphers returned at about-eleven o’clock-and met the policemen on the street, who told him of the search and seizure, and he then went to the lock-up and took, possession of the liquor seized, and afterwards made his return upon the warrant.</p> <p>The defendant seasonably objected to the admission of evidence of a search and seizure made by other persons than the officer who made the return, and not made in his presence or under his direction, as proof of the alleged search and seizure, but the presiding justice overruled the objection and admitted the evidence.</p> <p>The verdict was guilty; and the defendant alleged exceptions.</p>

<p> Deed. </p> <p>A quitclaim deed of all the grantor’s “right, title and interest in and to all the real estate situated in the town of Y. of which my late father, T. S. of said Y., was seized at the time of his decease,” is sufficient in its terms and furnishes a description sufficiently precise to convey whatever estate the grantor had in lands in Y. as heir of his father.</p> <p>The possession and production of a deed by the grantee is prima facie evidence of delivery; but the presumption is the other way, where it remained in the possession of the grantor during his life time, though it has been recorded since his death.</p> <p>The appearance of a deed upon the record does not operate as a delivery nor supersede the necessity of proof of delivery.</p> <p>A deed intended by the grantor to take effect only as a testamentary disposition of his property, aud retained by him in his own possession without delivery until his decease, passes no title from him to the grantees named in it.</p>

On exceptions. Indictment for nuisance, wherein the verdict was against the defendant, and he alleged exceptions, which in the opinion appear.

On exceptions. Trespass : For that the said defendant at, &c., on, &c., with a continuando, with force and arms broke and entered the plaintiff’s close situate in said Sidney, bounded and described as follows : Part of lot No. 38, on the 4th range of lots, on the east side of the road leading from Augusta to Waterville; being one-half of all the land on the east side of the road formerly owned by Timothy Woodward, commencing at the north line next- to land owned by Joseph…

<p>On report.</p> <p>Assumpsit on a promissory note, given for one hundred dollars by the defendant to the plaintiffs, October 5, 1874, for money lent him, and payable three months after date, with interest. Payment of the note was duly demanded, but no payment was made on it, except the interest to July 8, 1875, as indorsed thereon.</p> <p>The defendant seasonably filed the account or claim in set-off:</p> <p>One United States 5-20 bond No. 241,895 of the par value of $100, and worth at the time $120. This bond was left as collateral security to the note and never accounted for by the bank or redelivered to the defendant.</p> <p>On July 28, 1875, the bank was entered by robbers in' the night time, and the safe in which their moneys, papers and securities were deposited and kept, was forced open and a large part of the securities and property of the bank was stolen and carried away, the bond pledged by the defendant, as before stated, .being with and one of such securities. The bond was never recovered by the bank or the receiver.</p> <p>The plaintiffs claimed that due care was exercised in the custody of the bond, but this was denied by the defendant.</p> <p>The trustees of the bank filed a bill in equity in this court for Kennebec county, August 27, 1875, praying for the sequestration •and equitable distribution of its assets. Upon due proceedings had a decree of sequestration was passed, September 27,1875, Emery O. Bean appointed receiver, and commissioners were appointed. The receiver took possession of the assets, October 2, 1875, and the commissioners made final report, April 24, 1876. Proceedings under the bill were not closed, but pending.</p> <p>The defendant did not file or offer proof of his claim described in the account in set-off before the commissioners.</p> <p>On March 6, 1876, the defendant offered to the receiver the amount then due on the note in suit with costs, at the same time demanding his note and the bond. The receiver offered to take the money and give up the note, but the defendant declined and refused to let him have the money without the delivery to him of both the note and bond.</p> <p>It was agreed that the full court should render such judgment on the foregoing statement of facts as the law requires; that if the claim of the defendant could be legally filed, adjudicated upon, and allowed under the law applicable to accounts in set-off, the action should stand for trial; otherwise, judgment to be for the plaintiff' for the amount due on the note.</p>

On report. Assumpsit on the following receipt, dated March 27, 1871, and signed by the defendant: “ Deceived of J. F. Torrey, deputy sheriff, for safe keeping, the goods and chattels following, viz : — a certain lot of soft wood now on board the schooner Maria, of Dockland, which wood was taken on board of the property of 0.

On exceptions and motions. Assumpsit for pauper supplies to Augusta Nickerson, alias Campbell, 23 weeks board, from September 23, 1873, and medical aid and clothing, $50.39. At the first trial, the jury did not agree. At the March term, 1870, the verdict was for the plaintiffs, $02.44.

<p> Descent. Insurance. </p> <p>When a minor unmarried dies leaving no issue, father, mother, brother .or sister, the estate of the minor not inherited from her father descends to the maternal grandmother as next of kin rather than to an uncle on the father’s side or to the children of such uncle. R. S., c. 75, § 1, Rule 5.</p> <p>When a father effects an insurance on his life, payable to a trustee in trust for his minor child, and dies, the proceeds of the insurance vest in the trustee and constitute no portion of the paternal estate.</p>

<p>On exceptions by each party. The verdict was for the plaintiff for $200.</p> <p>I. Defendant’s exceptions. Trespass: For that the said Josiah Bruce, at said Somerville, on the twenty-seventh day of May, A..D. 1875, with force and arms assaulted the plaintiff, and then and there struck, beat, kicked, bruised, wounded and ill-treated him, and then and there caught the plaintiff by his shoulder and arm, and with great force, violence and power threw said plaintiff from the platform of His store into the highway, striking upon his left arm and shoulder, thereby breaking and dislocating the same and then and there struck the plaintiff divers grievous blows upon, across and over his head, face, eyes, shoulders and other parts of his body, and then and there with his feet kicked said plaintiff divers times in his side and other parts of his body, and thereby greatly cut and wounded the face, head, eyes, shoulders, legs and arms and side oí the plaintiff, and made divers large and deep cuts, gashes and wounds therein, the said defendant then and there with his feet and hands violently and grievously did kick, strike and beat, giving to the plaintiff in and upon his head, breast, shoulders, back, sides and other parts of his body divers bruises, hurts and wounds by means whereof the plaintiff hath suffered and still does suffer great pain in body and mind, by means whereof the plaintiff hath not only suffered great pain both of body and mind but he hath from thence hitherto been deprived of the use of his left shoulder and arm, and hath suffered much pain and weakness in his side, shoulders and arms, occasioned by the injuries aforesaid, and is not likely to be a well man again, by means whereof the plaintiff hath not only suffered great pain both in body and mind, but [hath suffered great humiliation in his feelings and great degradation and disgrace in the estimation of the good people of this state] by means of all said wrongs and injuries the plaintiff was put to great cost and expense in care, nursing and medical attendance on account of the injuries to his person caused thereby; and other wrongs, injuries, outrages and enormities defendant then and there committed, against the peace, to the damage of the said plaintiff, (as he saith) the sum of five thousand dollars. The plea was the general issue.</p> <p>In the opening of the plaintiff’s counsel, he claimed damages for the public humiliation and disgrace as set forth in the writ, and also that the assault was willful and malicious and he claimed punitive damages. After he put in evidence a half day, he moved to amend by striking out the following words : “Hath suffered great humiliation in his feelings and great degradation and disgrace in the estimation of the good people of this state.”</p> <p>This amendment was objected to by the defendant at that stage of the case, because it shut outrthe provocation. Afterwards when the plaintiff’s evidence was all closed, and while the defendant was introducing his evidence and offered evidence of the provocation, the plaintiff abandoned his claim for punitive damages.</p> <p>To this amendment, under the circumstances and at the time it was allowed, the defendant excepted.</p> <p>II. Plaintiff’s exceptions. All claim for punitive damages-was waived. Evidence of the defendant’s good character as a peaceable man was introduced under objection; and the plaintiff alleged exceptions.</p>

<p> Equity. </p> <p>A bill in equity to direct the disposition of a pledge affords a more complete remedy to the pledgee than his common law right to sell the pledge, after notice ; it concludes all the parties.</p> <p>The delivery of a savings-bank book to a third person for delivery to a creditor as security for a debt will create a valid pledge of the book and deposit.</p> <p>The heir cannot create a lien on the book or deposit as against the administratrix. Such a pledge will not be sold. Unless the administratrix, within a time fixed, tenders the amount of the pledge, with interest to the date of the tender, and the costs of process, the court will appoint an officer to receive the deposit, and make proper disposition thereof.</p>

On facts agreed. Petition for partition. The respondents contested the title of the petitioner, who claimed an undivided fourteenth part of the premises, and also 19-120 undivided parts, in all, 193-840, by virtue of the levy of two several executions in his favor against one Babson. If the proceedings in making the levies were valid and legally operative to give the petitioner title, he is to recover; otherwise, otherwise.

On report. Assumpsit on account annexed, $223.75, on account of the schooner Walton, embracing the following items: 1871, July 7. To commissions on coal freight for Charleston, S. C., $111.50, at 5 per cent, $22.00. Paid stamps on lumber charter party, $1.75. Paid Captain Gardiner for disbursements, $50.00. August 30. Paid custom house fee, $3.22. Paid warden fee, $1.00. Paid protest, $1.50. Paid health fee, $1.00. Paid towage, $1.00. Insurance by order of Gardiner, $1.50.

On exceptions. Indictment for keeping a drinking house and tippling shop.