Volume 68 — Maine Reports

On Report. Trespass, q. c. f. and for cutting and carrying away a quantity of bay on the northwesterly half of the lot numbered three in the seventh range of lots in Riley, in the county of Oxford. The plaintiff put in a chain of title from the commonwealth of Massachusetts to the deed of Olive S. Littlehale to him, dated July 7, 1869, covering the premises and then excepting the portion set off to Perkins, under whose grantees the defendant justified.

On pacts agreed. Trespass, guare clausum fregit, and for cutting grass in 1872 on a parcel of land to which both parties claimed title, under separate deeds from the same immediate grantor, one Freeman Allen.

On report. Writ oe entry, originally commenced in the name of Eliza Mitchell, for one undivided half of the Burrill farm in Canaan, and one undivided fourth of a wood-lot from Burrill to Eliza Mitchell and Fifield Mitchell, dated August 21, 1865, under which she claimed title. The writ was dated November 27, 1873.

<p>On report.</p> <p>Assumpsit against the defendant, as administrator of the estate . of Samuel Parker, for lumber sold and delivered to Parker in March, 1868.</p> <p>Plea, general issue, with brief statement that the cause of action, if any, against the intestate accrued more than six years before the suing out of the plaintiffs’ writ, and that the defendant was appointed administrator of the estate of the intestate more than two years before the suing out of the writ, and that the action was barred by the statute of limitations.</p> <p>It was admitted by the plaintiffs that the cause of action accrued to them in March, 1868 ; that Parker died December 28, 1872; that the defendant was duly appointed January 7, 1873; that this suit was brought May 19, 1875, and that notice and demand in writing was made on the defendant, as administrator, for payment, March 1, 1875.</p> <p>The defendant also contested the plaintiffs’ right to recover on other grounds, overruled by the presiding justice in instructions not excepted to, and a verdict was returned for the plaintiffs for $660.32.</p> <p>Upon the foregoing facts it was contended by the defendant that the action was barred by the statute of limitations.</p> <p>By consent of the parties the case was reported to the full court, upon the foregoing facts, nothing else being admitted or proved by either party. If the action is barred by the statute of limitations in actions against executors and administrators, the verdict is to be set aside and judgment entered for the defendant. Otherwise, judgment on the verdict, for the plaintiffs.</p> <p>The brief statement does not allege, and the case does not find, that the defendant ever gave any notice of his appointment as administrator. This omission is fatal to the defense. Laws of 1872, c. 85, § 18. B. S., c. 87, §§ 11 and 18. Bachelder v. Fisk et al., executors, 17 Mass. 464, 468. Clarke v. Tufts, 5 Pick. 337, 341. Burditt v. Grew, 8 Pick. 1.08, 111. Estes v. Wilkes, 16 Gray, 363. Heard v. Header, 1 Maine, 156, 157. Thurston v. Lowder, 40 Maine, 197, and 47 Maine, 72, 75. Henry v. Estey, administrator, 13 Gray, 336. Thompso?i v. Burnham, administrator, 13 Gray, 211, 212.</p> <p>contended that c. 85 of the laws of 1872 had no application, either in -terms or in spirit; that by its terms it was an amendment, not of R. S., c. 81, § 88, upon which the defendant relied, but of R. S., c. 87, which neither as originally enacted nor as amended by the act of 1872, in any way repealed, restricted, limited or modified § 88.</p>

<p>On report.</p> <p>Debt under the statute to recover a tax.</p>

Bill in equity, to determine the construction of a will. John Ham, October 27, 1871, made bequests by will to Emily Crowell, his niece, $50 ; to Mrs. Charlotte Whitcomb, $25 ; ■ to his niece, Lydia Crowell, $5, and to Hattie Bacon, $50.

<p> Deceit. Fraudulent concealment. Sale. Quitclaim. </p> <p>In the sale of land, the vendor is liable for misrepresentation in regard to the title as well as the quality.</p> <p>Where one by quitclaim sells land set off to him on a judgment execution, and represents that his title is good, the concealment of the fact known to him and unknown to the buyer, that a petition to reverse the judgment was then pending, is fraudulent, and renders him liable in damages.</p>

<p> Corporations. Contracts ultra vires. </p> <p>Corporations possess sucli powers, and such only, as the law of their creation confers upon them ; and when created by public acts of the legislature, parties dealing with them are chargeable with notice of their powers, and the limitations upon thorn, and cannot plead ignorance in avoidance of the defense of ultra vires.</p> <p>The trustees of the Lewiston Instition for Savings subscribed for 850,000 of the capital stock of the Continental Mills, and having no money to pay for it, the Franklin Company, another corporation, paid that amount to the Continental Mills, taking the notes of the savings institution therefor, and a certificate of the stock in their own name as collateral security for the payment of the notes. Held, that the action of the trustees of the savings institution was ultra vires; that it is not within the authority of savings institutions, at a time when they have no funds for investment, to purchase stocks or other property, not needed for immediate use, on credit, and thus create a debt binding upon the institution; that the Franklin Company, having participated in the illegal transaction, could not claim the privileges of a bona fide holder of commercial paper; and that the savings institution, having received no benefit from the transaction, was not estopped to set up the defense of ultra vires.</p> <p>Semble, upon the authorities cited, that in the United States, corporations cannot purchase, or hold, or deal in the stocks of other corporations, unless expressly authorized to do so by law.</p>

On report. Case for negligence. Stephen Osborne, the plaintiff’s intos-tate, the servant of the railroad corporation, and master of its ferry-boat, whose duty it was to transport the cars of the defendant company across the Kennebec river, between Bath and Wool-wich, left the boat, which was lying at the wharf in readiness to transport the loaded freight cars from Woolwich to Bath, and, at the request of the conductor, unshackled the loaded cars by pulling the bolt which…

ON EXCEPTIONS. Teespass, against a sheriff for taking and carrying away one pair of working oxen, valued at $300. Plea, general issue with a brief statement that he took the oxen as sheriff, by William Keen, his deputy, by virtue of a writ, and that the oxen were disposed of according to law, to satisfy the judgment afterwards rendered in the action in which they were attached.

On MOTIONS. Assumpsit, for carrying the mails between Houlton and Dan-forth from March 14 to April 10, 1872 ; 24. trips at $10 per trip, $240. Plea, general issue with brief statement that the plaintiff was mail contractor on the same route. The verdict was for the plaintiff, $159 ; which the defendant moved to set aside as against law and evidence. He also filed a - motion for new trial on the ground of newly discovered evidence.

<p> Lien. Executors and administrators. </p> <p>The lien created hy R. S., c. 75, § It, can be enforced only “by suit and attachment of the share within two years after administration granted’ on the estate from which the share descends.</p>

On REPORT. Assumusit, for money had and received. Date of writ, August 22,1871.

On exceptions and motion to set aside the verdict which was for the defendants.

On report. Writ of entry. If the plaintiff has the better title, the ease to come back for trial as to amount of rents and profits; otherwise, judgment for the defendant. Plea, nv2 disseizin, with a brief statement. I. That the defendant was seized of the demanded premises as owner, and the plaintiff not seized and possessed, and not the owner. II.

<p>On exceptions, from the superior court.</p> <p>Debt on bond, tried before Symonds, J., with right of exceptions.</p> <p>The bond was of the form following:</p> <p>“Know all men by these presents, that we, John Mansfield of Portland as principal, and Nehemiah Curtis as surety, are holden and stand firmly bound and obliged unto Seth T. Scribner and William L. Blossom, both of Portland, late copartners in trade under the firm name of Scribner & Blossom, in the sum of one hundred and fifty-four dollars and fifty-four cents, to be paid unto the said Scribner & Blossom, his certain attorney, heirs, executors, administrators or assigns. To the payment of which sum we do hereby bind ourselves, our heirs, executors and administrators, jointly and severally, in the whole, and for the whole, firmly by these presents.</p> <p>“ Sealed with our seals. Dated at Portland, the first day of July, A. D. 1876.</p> <p>“ The condition of the above written obligation is such, that whereas the said John Mansfield hath been and now is arrested at Portland, in the said county of Cumberland, by virtue of an execution issued against him on a judgment obtained against him by the said Scribner & Blossom, by the consideration of our justice of our superior court, at a term of the said court which was begun and holden at Portland, within and for the county of Cumberland, on the first Tuesday of October, A. D. 1875, for the sum of fifty-nine dollars and sixty-three cents, damage, and costs of court, taxed at twelve dollars and sixty-seven cents, with thirty cents more for two writs of execution, and the officer’s fees and charges for said arrest, taxed at one dollar and eighty-seven cents.</p> <p>“ Now if the said John Mansfield shall in six months from the time of executing this bond, cite the said Scribner & Blossom, the creditor, before two justices of the peace and of the quorum, and submit himself for examination agreeably to the one hundred and thirteenth chapter of the revised statutes, and take the oath prescribed in the thirtieth section of said chapter, or pay the debt, interest, cost and fees, arising in said execution, or deliver himself into the custody of the jailer, agreeably to the twenty-fourth section of the chapter above referred to, then this obligation to be void, otherwise to remain in full force. Signed, sealed and delivered in presence of S. D. Hall.</p> <p>his</p> <p>John X Mansfield, [ L. S.]</p> <p>mark.</p> <p>Nehemiah Curtis, [ L. S.]</p> <p>“ We, the subscribers, do approve of the sureties named in the foregoing bond.</p> <p>Scribner & Blossom, creditors, per E. S. Ridlon, their attorney.”</p> <p>Plea, non est factum, with a brief statement of no breach ; that the action was premature; that the bond, though bearing date July 1, 1876, was not in fact executed and delivered until about July 19, 1876, and was not approved according to law.</p> <p>The plaintiffs introduced the bond, execution, and, against the defendants’ objection, the officer’s return thereon, dated July 1, 1876, reciting the arrest of Mansfield, and the giving of the bond, and rested.</p> <p>The defendants offered the testimony of the surety, one of the defendants, as to the time when the bond was signed by him and the principal, which was admitted, de bene esse, against the plaintiffs’ objection.</p> <p>This witness testified in substance that, shortly after the 4th of July, 1876, he was requested by constable S. D. Hall to step into his office and sign the bond in suit, which he did without reading the bond or noticing the date ; that he had previously agreed to sign a relief bond for the principal, in an interview had with plaintiffs’ attorney a few days previously; the principal was not present when he, the surety, signed the bond ; that on the 19th day of July, 1876, he was called into the principal’s house as he was passing, where he found constable Hall in waiting, for the purpose of obtaining the principal’s signature. The bond was not read to the principal to witness’ knowledge. Principal signed by making his mark. Witness remarked to constable Hall as it was being signed that it was the 19th of July. No reply was made to witness’ recollection. Witness did not see the date of the bond. The principal was not present at the trial, but was to testify as to the time when the bond was signed by him if the evidence should be decided by the justice as material.</p> <p>The defendants then offered to prove for the purpose of chan-cering the bond if the action could be maintained at all, that the principal obligor had, when the bond was signed, and at the time of the .trial, no property not exempt from attachment and execution ; but the justice ruled that this evidence was inadmissible; that the bond was a statute bond; that the time of its execution was not material; and further that it was not competent to contradict by parol testimony the officer’s return, as to date of arrest and of discharge on giving bond, and thereupon gave his decision for -the plaintiffs for the amount of the execution, costs and officer’s fees thereon.</p> <p>The defendants alleged exceptions.</p>

<p>ON EXCEPTIONS.</p> <p>Case, under B. S., c. 118, § 51, to recover damages for the fraudulent conveyance to the defendant of one W. P. Farns-worth’s interest in a stock of goods which Farnsworth and the defendant owned as copartners. Immediately before the alleged fraudulent conveyance, the plaintiff placed a writ in an officer’s hands for the purpose of attaching that interest, a fact known to Farnsworth and the defendant. The testimony was conflicting as to whether the plaintiff instructed the officer to make an attachment of sufficient amount of the partnership property to secure his debt, as the defendant claimed, or to make an attachment of Farnsworth’s interest in a part of the stock, as the plaintiff claimed.</p> <p>The presiding justice instructed the jury that a separate creditor might, on a writ against one member of a firm, attach his interest in all the copartnership property, but had no right to attach his interest in a part of the goods. The verdict was for the defendant; and the plaintiff alleged exceptions to the foregoing ruling and to another alluded to in the opinion.</p> <p>contended that it was error to instruct the jury that, a regard for the rights of partnership creditors forbade the attachment of defendant’s interest in a part of the goods, because if the statement of the principle were correct, no one except a partnership creditor could invoke it, — the defendant could not. Douglas v. Winslow, 20 Maine, 89. But the rule protecting the rights of partnership creditors makes no distinction between the attachment of the interest in a part and in all of the goods.</p> <p>cited Douglas v. Winslow, sujpra. Moore v. Pennell, 52 Maine, 162. Allen v. Wells, 22 Pick. 450.</p>

<p> Interest. </p> <p>On a note payable on demand with interest at ten per cent, that rate of interest is recoverable up to the date of the verdict, when damages are assessed by a jury; and up to the date of judgment, when a default is entered in a suit on the note.</p>

On report. Assumpsit, on subscription to stock. Plea, never promised, with a brief statement that the plaintiff company was never legally organized under its charter. Held: after seasonable notice, April 28, 1870.

<p>Tlie authority of an agent to execute a deed in behalf of his principal, need not bo given in express terms; but may be implied from the express power given. The power to sell the land of the principal necessarily implies the power to execute a proper deed to carry the sale into effect.</p> <p>Thus: At a legal town-meeting “ chose H agent to sell the balance of the town landing, if he thinks it will be for the interest of the town to do so.” Held, that by this vote H had authority to sell the demanded premises, and to execute a proper deed of conveyance thereof in behalf of the town.</p> <p>In Maine, where a deed is executed by an agent or attorney with authority therefor, and it appears by the deed that it was the intention of the parties to bind the principal or constituent, — that it should be his deed and not the deed of the agent or attorney — it must be regarded as the deed of the prin-pal or constituent, though signed by the agent or attorney in his own name. II. S., c. 73, §§ 10 and 15.</p> <p>In determining the meaning of the parties to a deed, recourse must be had to the whole instrument.</p> <p>The deed sets out that the inhabitants of the town of ST conveyed to Clark a certain tract of land. In witness whereof, they, “ by the hand of Hatch, hereunto duly authorized, . . . have sat their seal, and the said Hatch has hereunto subscribed his name.” Hatch, as agent of ÍT, acknowledged the instrument to be the free act and deed of the inhabitants of the town. Held, that it was the deed of the inhabitants of N.</p>

<p> Principal and, Agent. </p> <p>An agent for tire sale of goods, ■with an interest in the proceeds, is not deprived of the power to sell, by the death of the principal.</p> <p>The terms of the agency were that the agent should sell the goods and out of the proceeds pay certain lien and other claims, and apply the balance, first to the payment of certain notes he held against the principal and return the overplus to the principal. Held, that the power was not extinguished by the death of the principal; that the agent had a right to sell and apply the proceeds as agreed, and to pay his own notes in full, even though the estate was rendered insolvent and other creditors received only a percentage.</p> <p>In the case stated, the notes were delivered by the defendant to the plaintiff and by her presented to the commissioners. Held, that their allowance by the commissioners as a claim against the estate without the procurement or authority of the defendant in no way affected his rights.</p>

On exceptions and motion. Eeplevin of goods, obtained by one Morton, a retail dealer of Lisbon, of the plaintiff’s intestate, a wholesale dealer of Lewiston, on the ground that they were obtained through the fraudulent representations of Morton. The plea was non cepit, with a brief statement that the goods were the property of one Joseph Gr. Morton, and held by the defendant as deputy sheriff on certain writs.

<p> Will. </p> <p>A testator made his widow residuary devisee with power to hold and use all the property during her life, and to expend all of it if necessary for her care, comfort or support. Held, 1. That she took a life estate, with full power to convey the real estate in fee, at pleasure, without restraint as to her use of the proceeds for her care, comfort or support. 2. That she was made the sole judge as to whether it was necessary to convey for the purpose named. 3. That her quitclaim deed of land in the usual form was a sufficient execution of her power under the will, and conveyed the fee.</p>

<p> Husband and wife. Married woman. </p> <p>Trespass by tbe husband for digging and carrying away eartb within the limits of the highway upon which the farm of his wife was bounded, they living upon the premises together, he occupying and carrying on the farm permissively without any contract. Held, that this was not a release to the husband within R. S., c. 61, § 2, and that, if it were so, the right of action for such an injury would remain in the wife after as well as before the release.</p>

On exceptions and motion of defendants. Assumpsit, on the following contract, dated November 24, 1869, and signed by the parties: “ Bishop & Muzzey, on their part, agree to go on townships Nos. 7 and 8, on Pleasant brook, and cut and haul and drive into the Mattawamkeag stream, pine logs for seven dollars and 50-100, and spruce, cedar, hackmatack and ash for six dollars and 50-100, per M feet. Bishop & Muzzey agree not to haul or interfere with any timber that Wm.

On report. Trespass on the case declaring on a common law liability for the ffowage of the cel lar of the plaintiff’s store on the easterly side of Exchange street, in May and June, 1874, and setting out, among other things, that he had and maintained a private drain from the cellar through and across Exchange street and into Ken-duskeag stream which well a nd effectually drained the premises; that the defendants built Exchange street sewer and cut off and blocked the…

On report. Debt, on a recognizance taken by a trial justice, in a case of forcible entry and detainer, entered before him and removed to S. J. Court under It. S., c. 94, § 6, each party recognizing to the other.

<p> Will. Acceleration of remainders. </p> <p>A remainder taking effect after a life estate is accelerated by any cause which removes the prior life estate out of the way.</p> <p>The testator by will gave his wife, in lieu of dower, ono-half of his property, real and personal, for her life, with power to sell and make such reinvest-ments as she deemed expedient, with a devise over to his adopted son. Held, a gift to the wife of only a life estate with power of alienation for reinvestment only, and a valid devise over both as to real and personal estate.</p> <p>Where, in the same case, the wife waived the provisions in the will and accepted dower and allowance instead, Held, that the devise over was not thereby abrogated; that the effect as to the surplus was the extinction of the widow’s life estate therein and the acceleration of the rights of the second taker.</p>

<p> Set-off. Measure of damages. </p> <p>In an action on account annexed, where a set-oif was filed by defendant and a counter set-oif by plaintiff, the presiding justice instructed the jury, “ If, upon the whole account, you find as much due the defendant as there is duo the plaintiff, your verdict will be for the defendant.” Meld, erroneous, and that the verdict should be, “ nothing due either party.” E. S., c. 82, § 60.</p> <p>When A has been wrongfully prevented by B from completing his contract, the measure of damages is the difference between the price agreed and what it would cost A to complete it.</p>

On report. Assuhpsit, on a promissory note of defendants for $666.66, dated February 6, 1864 ; also for $1,545, cash received by them of testator’s widow. The defense was that, although the note and the money were the property of the testator, yet they were given to her by will ; and having been applied by her in payment to the maker of the note for one-quarter of the schooner “A. H. Whitmore,” built by him, the executor could not rightfully recover for the note or the money.

<p>On report.</p> <p>Petition roe partition.</p>

On exceptions. Acoount ANNEXED, for 7150 hoops, at $35 per M, $250.25; 1000 barrel hoops at $16 ; in all, $266.25 Credit, by cash, $200 ; hoops returned, $19 ; paid for freight, $1; in all, 220.00 Balance due, $46.25 Plea, general issue.

On exceptions to the overruling of the defendants’ demurrer to the declaration, and of their motion for leave to withdraw their demurrer, and plead anew. Case, for pauper supplies.

<p>ON exceptions and motion.</p> <p>Trespass.</p>

On exceptions. Case for personal injuries from defective highway, received May 27, 1873. ■Writ dated January 9, 1875. The alleged obstruction was a large stone, which the plaintiff claimed, and there was evidence tending to show, had been blasted and was lying within the located limits of the road and outside the wrought part.

<p> Mortgage. </p> <p>Husband and wife gave a note and secured it by a mortgage on her furniture. The husband, with money borrowed of his father, paid the note, receiving the papers into his possession. Immediately afterwards and before separation, by arrangement between all parties except the wife, (who was not present) the note and mortgage were assigned by the mortgagee to the father. Held, that the wife would hold the property clear of the incum-brance by mortgage.</p> <p>The father would have no right in the mortgage by subrogation, being under no obligation to pay it, and having no interest in it when it was paid.</p>

<p>On exceptions.</p> <p>Bill in equity, stated in 65 Maine, 439.</p>

On report. Assumpsit, against the defendant Giles, and two other defendants with him as co-promisors, for the faithful performance of his duties as collector of taxes for the year 1869. The instrument declared on was in form a statute bond but unsealed. It was admitted that Giles collected, of the taxes of 1869, $9,295.45, and paid into the state, county and town treasury $7,386.32 prior to the date of the writ, and that he paid in no more on the tax of that year.

<p> Master and servant. </p> <p>The servant of the occupants of an npper tenement accidentally left open a faucet, thereby causing the water to overflow and flood the tenement below. Held, that the occupants of the upper tenement were liable for the damage thereby done.</p>

<p> Amendment. </p> <p>The declaration in the writ is the criterion for determining what is recoverable in an action. If the declaration is broad enough to cover a particular claim, it may be proved and recovered, though it was not specified nor contemplated by the plaintiff when the writ was drawn.</p> <p>The filing of a bill of particulars, either upon the motion of the plaintiff or the defendant, is not objectionable as introducing a new cause of action, even though the plaintiff had no such cause in his mind as the bill states when he commenced the action.</p>

On exceptions. Trover for a watch. John W. MeDuffee, once the undisputed owner of the watch, delivered it, with five others, to the plaintiffs, in pursuance of a sale or as security. They afterwards replaced it in McDuffee’s hands, and took from him the following writing: “Lewiston, December 23, 1874. Received of J. A. Rodick & Co. one Nord-man, freres, stem winder, No. 21,549. Money or watch to be returned Saturday next. Yalue, $200.

On report. Writ oe entry. Plea, mil disseizin, with a brief statement of seizin of the defendant in her own right and in fee simple by virtue of a mortgage to her father (under whom she claims as devisee) and a legal foreclosure thereof. Jeremiah Woodward and wife conveyed the premises to the plaintiff, August 27, 1857, and took back a mortgage from him, May 11, 1858, to secure the payment of notes for $350; and his interest came to the defendant by devise.

On report. This is an action for an alleged interruption of plaintiffs’ drain, by the erection of an abutment which prevents the use of the drain as before. The case was referred to the presiding justice to determine the facts, the law court to decide the questions of law arising thereon. The facts found are as follows : “ Prior to the year 1847, one Win.

ON REPORT. Assumpsit, for money bad and received, and on account annexed, as follows : “ 1875. September 20. To cash received by you, as proceeds of my note, given for an interest in the Abel Loom Corporation, the note having been obtained by fraud, and discounted by you at Eastern bank, and you having received the money therefor.

On exceptions. Trespass, for assault and battery. “ For that said Josiah Bruce, at said Somerville, on the 27th day of May, 1875, with force and arms assaulted the plaintiff, and then and there, with a large birch stick which he then and there held in his hand, struck the plaintiff with said stick one grievous blow upon, across and over her back, and thereby greatly cut and wounded the plaintiff’s said back, which said blow extended from shoulder to shoulder. [And then and…

On exceptions. SEARCH AND SEIZUEE PROCESS. September 27, 1875, the judge of the police court of Belfast, on complaint of one Sanborn, issued his warrant, in accordance with B. S., c. 27, § 35, against the store of Andrew D. Bean in that city. The warrant was served by the sheriff, and a large stock aud assortment of intoxicating liquors were seized by him.

Dill in equity, to redeem laud mortgaged, alleging that, August 17, 1872, the plaintiffs demanded of the defendants a true account of the sum due on the mortgage, and of the rents and profits, and the money expended by them in repairs and improvements, to the end that the plaintiffs might redeem the premises from the mortgage, and that the defendants neglected and refused to render such an account.

On exceptions. Case against the sheriff for the misfeasance of his deputy, Jeremiah J. Walker, in not paying over money collected on an execution.

The trustee disclosed that, under a contract between him and the principal defendants, for cutting, hauling and driving logs, the defendants had earned the sum of $6,727, towards which he, trustee, had, from time to time before service of the writ, made payments to an amount sufficient to reduce the indebtedness to about or less than $900.

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

On exceptions. . Indictment as a common seller with an allegation of conviction for a prior offense. To make out the former conviction the state put in the prior indictment and docket entries. No judgment had been extended upon the record. The defendant objected to the sufficiency of the proof, because it did not appear that any sen-fence had been passed, or that judgment had been ordered to be entered up (as by him contended) for the state.

<p> Mortgage. Landlord and tenant. Fixtures, manure. </p> <p>The right of an outgoing mortgagor, after condition broken, to the manure produced upon a farm in the ordinary course of husbandry by him, pending the mortgage and while in possession of the mortgaged premises, is to be determined by the rule of law which prevails between mortgagor and mortgagee, and not that which prevails between landlord and tenant.</p> <p>The general rule, that manure made upon a farm in the usual course of husbandry is so attached to and connected with the realty that, in the absence of any agreement or stipulation to the contrary, it passes as appurtenant to it, is applicable to a mortgagor in possession. He has no right when vacating the premises to remove or sell such manure, but the title thereto is vested in the mortgagee as the owner of the freehold.</p> <p>When Carter sold and delivered the manure in controversy to the defendant, he was an outgoing mortgagor, after condition broken. Held, that he had no title to the manure, and the defendant acquired no right to it by his purchase, and was liable to the mortgagee, the plaintiff, for its fair market value at the time of the taking.</p>

<p>On demurrer to a bill in equity.</p>

On exceptions. Forcible entry and detainer. The case, on a former bill of exceptions, is stated in 65 Maine, 520. At the March term, 1877, the verdict was for the defendant; and the plaintiff alleged exceptions to the exclusion of evidence offered, as in the opinion appears.

On exceptions. Trespass, for illegal arrest and imprisonment.

<p> Mills. </p> <p>A eomplaint to recover damages caused by flowage, under E. S., c. 92, may be sustained by one wbo has been the owner of the land described, at any timo within three years previous to tho institution of the complaint.</p> <p>All the owners of the dam must bo joined in the complaint, and an omission in this respect need not be taken advantage of by plea in abatement, but may be by any proper plea filed as plea in bar.</p> <p>Where all the defendants have joined in raising a distinct issue, and one of the respondents subsequently files a brief statement raising the same issue, a special demurrer to the latter, on the ground that the pleader was bound by the former, was properly sustained.</p>

On EXCEPTIONS. Petition eor certiorari. A petition for'laying out a highway from Wiscasset to Hodg-don’s Mills, in Boothbay, was denied by the county commissioners at the September term, 1872.

<p> Limitations, statute of. </p> <p>In an action of account, the statute of limitations is pleadable in bar before the interlocutory judgment of quod computet, and not afterwards.</p> <p>Where, in an action of account, no issue is raised before the auditor and reported by him, his report is conclusive.</p>

<p> Insurance. Promissory notes. Payment. </p> <p>As a general rule, tlie premium note of an insurance broker, received by the insurers in payment of a policy for his principal, discharges the principal from liability to the insurers on account of the premium.</p> <p>But if tho policy contain a provision that, in case of loss, the amount of the premium note shall be deducted from the insurance, the insured must submit to tho deduction, although he has before paid the amount of the premium to the broker.</p> <p>In case of the death and insolvency of a broker, a court of equity will not compel his administrators to sequester for the benefit of the insurers any sum received by them from the insured on account of premiums, if the company hold tho broker’s note therefor.</p>

On exceptions. Assumpsit, on a negotiable promissory note signed by the defendant, payable to the order of the plaintiff three months after date, and not indorsed. The defendant testified that the note was given in part payment for a horse sold and warranted sound, which turned out to be worthless, and that the consideration had failed.

On exceptions from the superior court. Trespass, wherein the plaintiff, in writ dated October 10,1875, alleged that the defendant, on May 16,1875, assaulted her, threw her down violently, and by force and against her will had carnal intercourse with her, and testified at the trial to all the facts constituting the crime of rape; and there was no other evidence. The presiding justice, on the defendant’s motion, ordered a non-suit ; and the plaintiff alleged exceptions.

On report. Writ of entry, to recover an undivided half interest in sixteen and three-fourths acres of land. John A. Tinkham, September 25, 1854, mortgaged to one Moore 25 acres and 20 rods of land, of which the demanded premises in possession of the defendant was a part, to secure payment of a note for $653.

On report. Assumpsit to recover a balance claimed to be due as wages for labor as a seaman on board the steamer “ Grace Darling,” in 1874.

<p>On exceptions and motion by the defendants, to set aside a verdict for the plaintiff of $150.</p> <p>Trespass by the defendants, for removing the plaintiff’s bank wall, fence and earth. The case is stated in 66 Maine, 234.</p> <p>At the trial the defendants offered certain records of the town of Calais in the year 1822, in regard to a location of a highway, which was excluded on the plaintiff’s motion, but the exceptions do not show what the records were.</p> <p>The presiding justice instructed the jury thus: “ Upon a careful examination of the records introduced, and the law as it existed in 1822, at the time the acts were done, I am satisfied that the records do not show a compliance with the requirements of law; and no person’s land is to be taken for public use without such compliance. Having become satisfied that the law was not complied with by that record, I deem it my duty to exclude it, and I instruct you to exclude it entirely from the consideration of this case.”</p> <p>Also, “If you are satisfied that the plaintiff was in possession of the premises upon which the acts were done at the time, by having them inclosed by her fence as a part of her lot, and Mr. Smith, acting for the city, entered upon the premises in her possession, I instruct you that the burden is upon the defendants to show that they had a justification to enter in that manner and do the acts complained of.”</p> <p>Also, “ In this action the measure of damages is what damage she suffered by reason of the acts complained of up to the time of the commencement of the action, September 4, 1875; and it is said that the entry by the defendants was in the last of June of the same year. For any damage she has sustained since that time by reason of having the erection continue there by the city, she may have the right of another action, if they were unlawfully placed there. Now, if the injury was unlawful, one of the elements of damage is the taking of the earth and the stone and carrying them away. What damage did the plaintiff sustain by reason of that ? Another element of damage is the loss of the use of that portion of her premises from the time the acts were done to the date of the writ. And these are the material elements of damages to be considered in this suit.”</p> <p>The verdict was for the plaintiff; and the defendants filed a motion to set it aside, and also alleged exceptions.</p>

<p> Jurisdiction. Municipal court of Portland. </p> <p>The municipal court of Portland has jurisdiction over all such matters and things as justices of the peace, at the time of its establishment, might exercise, irrespective of the residence of the parties litigant within the county.</p>

<p> Promissory notes. Pleading. </p> <p>It is no defense to a suit against the maker of a negotiable promissory note by a national bank which had discounted the note for an indorsor, that since the commencement of the suit the indorser has paid the bank and taken np the note and taken an assignment of the suit and is prosecuting it for his own benefit.</p> <p>Such bank has power to free itself from litigation and realize its money on a protested note by such an arrangement.</p> <p>Where there is no evidence of fraud or oppression, or any corrupt or improper motive, the owner of indorsed negotiable paper may maintain suit upon it against prior parties in the namo of any person.or party capable of giving the defendant a discharge, who will consent to the use of his name for that purpose. It is not essential that a suit upon such paper should be brought or prosecuted in the name of one who has a personal interest in the enforcement of the promise.</p> <p>Pleading the general issue in such suit admits the corporate existence of the bank and its capacity to sue.</p> <p>While the right of the defendant to assert such legal and equitable defenses in a suit brought in the name of a nominal plaintiff, as he could maintain were the suit in the name of the real owner, will always he preserved, there being nothing in the case to show that the indorser or his executor, had he taken np the note at its maturity, could not have maintained an action upon it in his own name, Held, that he may lawfully get the benefit of any attachment made by the hank by procuring their consent to the prosecution of the suit in the name of the hank.</p>

On exceptions and motion of plaintiff, to set aside the verdict, which was for the defendants. Trespass, for breaking and entering two closes of the plaintiff, in Chesterville, October 11, 1871, one a mill privilege on Stony brook, the other a clover patch near by, set out in two counts.

<p> Pom' debtor. </p> <p>The certificate of the creditor’s oath upon a writ, to authorize the arrest of the debtor, must state clearly all the facts required by the statute.</p> <p>The statement that the property about to be taken by the debtor is more than is required for “ immediate support ” is not sufficient. It should appear by apt words that it is the debtor’s support referred to, and not that of any other person or persons.</p>

On report. Indictment, charging the defendant with building a fish weir in the tide waters of Passamaquoddy bay, within the limits of the town of Robbinston, contrary to the statute of 1876, c. 78, approved February 11, 1876. Plea, not guilty.

On exceptions. Assumpsit, on account annexed. The defendants dissolved as copartners in the grocery business, September 27, 1875, when there was a balance due from them to the plaintiffs.

ON MOTION. Tbespass, quare clausum, on the Letter B, or Gape Split, lot of about 100 aeres in Addison, bounded on three sides by the waters of Eastern harbor, the ocean and Pleasant river and on the north by the William Wass lot.

<p> Partition. Parties. Abatement. Process. </p> <p>A recital, in the record of a judgment of this court, that notice has been given to defendants out of the state, where there is an attachment of their property on the writ, is so far conclusive that the judgment cannot he set aside as a nullity when collaterally attacked.</p> <p>Whether the fact, that two copartnerships having a common member are interested as tenants in common in the estate to be divided, would be a bar to the prosecution of a petition for partition by one of the firms on the ground that no one can be both plaintiff and defendant in a suit at law quaere.</p> <p>An objection on that score is in the nature of a plea to the ability of the petitioners to prosecute, and if taken at all it must be by plea in abatement, and where the firm named in the petition as co-tenants are defaulted, other tenants in common cannot set it up under a plea denying the title, and seizin of both firms and alleging sole seizin in themselves. With the issue made up by such pleadings it has nothing to do and cannot be considered.</p> <p>The rule that two creditors attaching their debtors’ property at the same moment take in moieties, has no application to a case where the judgment in favor of one of them can bo satisfied in full with less than half the property attached. The fact that the whole estate is subject to a right of dower hitherto unassigned, is no bar to partition.</p>

<p>On motion anh exceptions.</p> <p>Trespass, quare clausum.</p>

On exceptions and motion by plaintiff to set aside, for inadequacy, a verdict in bis favor for one dollar.

<p> Evidence. Deed. </p> <p>Oral evidence of fraud, in order to vacate a deed, should not only amount to a preponderance of proof, hut such preponderance should he based upon testimony that is clear and strong, satisfactory and convincing; and the party complaining must he reasonably free from fault or negligence himself.</p> <p>This rule should be especially enforced in a case where the oral evidence comes mainly from parties to the suit, and where a plaintiff seeks to recover damages for the fraud imposed upon him, instead of rescinding and repudiating the deed.</p>

Bill in equity, alleging that the defendant brought a writ of entry to recover certain premises in Knox county against the plaintiffs, now pending ; that the premises for merly belonged to Brown, now deceased; that Brown conveyed them to Tolman, October 12, 1855, from whom the defendant derived his title; that Sidelinger, Hammond, Wood & Son, Harrington, and Burpee, having claims against Brown, brought suits and each recovered judgment against him, October term, 1856, upon…

On exceptions by the defendant to the overruling of his demurrer to the declaration. Libel, in two counts, for words printed in a newspaper, the Rockland Opinion, September 15, 1876. The first count declares for a libel against the plaintiff as an individual, in these words': “The Hurricane Vote.

On exceptions and motion of the defendants to set aside the verdict which was for the plaintiffs and for a new trial on the ground of newly discovered evidence. Assumpsit, for supplies furnished to Abner B. Crocker and family as paupers of the defendant town. The only issue raised and tried was the settlement of the pauper, Abner B., in the defendant town.

<p>On exceptions.</p> <p>Tbespass, for breaking and entering the plaintiffs’ store in Lewiston and holding them out from September 11, 1876, to December 27, 1876, and breaking up their business. Plea, general issue.</p> <p>The defendants were lessees of a lot of twenty-five feet front by one hundred feet, with store thereon fronting on Lisbon street, and extending back about one-half the length of the lot, the lease running from April 1, 1872, to April 1, 1877, at a quarterly rental of $87.50. The defendants, while occupying under their lease, erected another building in the rear of the store of the same width, covering the rest of the lot, and joined and nailed it to the store, and occupied the two buildings thus united for a furniture manufactory and sale store, with an upholstery room, paint and carpenter shops connected; and there was evidence that the buildings could not be used separately, there being no way of entering the rear building except through the one in front.</p> <p>The defendants, in November, 1875, sold their stock in trade in the two buildings, together with the rear building erected by them, to the plaintiffs for $8,822, calling the rear building $1,000 and the stock $7,822, and gave the plaintiffs leave to occupy both buildings while they remained. In payment of $4,750, the plaintiffs gave their notes to the defendants, secured by mortgage on the stock and rear building with appurtenances, with a provision therein “ that, if the said stock shall at any time be reduced in value to a less amount than $6,500, the said Allen & Maxwell may enter and take possession of same without notice. Provided, also, that it shall and may be lawful for said Freeman F. and Frank to continue in possession of said property without denial or interruption by said Allen & Maxwell until condition broken.”</p> <p>September 11, 1876, after condition broken, a $500 note due August 17, 1876, not being paid, the defendants entered and took the stock of goods upon a replevin writ, then amounting to only $4,400, and took possession of the store, the front and rear buildings, under their mortgage, and held the plaintiffs out, the alleged trespass. The plaintiffs had the permission of the defendants, November 15, 1875, to occupy the store by paying rent while they remained, and the plaintiffs paid the rent to the first lessor, Whitman, to July 1, 1876, only, and after that the defendants paid it.</p> <p>The defendants justified under their mortgage and claimed the right to enter and take possession of both buildings, and that the plaintiffs were tenants at sufferance after breach.</p> <p>The presiding justice ruled that the mortgage to the defendants gave them no right to enter and take possession of the real estate, and hold the plaintiffs out; that the word “appurtenances” in the mortgage could give no such right, because real estate would not pass as appurtenant to personal property; that in his opinion the relation of plaintiffs to defendants was that of tenants at will, it being admitted that the plaintiffs took possession of the premises under an oral agreement with the defendants, and occupied in subordination to their title. The defendants then claimed that under the relation of tenants at will there was evidence by the mortgage, the conduct of the parties, the subject matter of the transaction, the nature and value of the furniture and necessity of keeping it in this store, which after breach of condition of mortgage might amount to mutual consent to terminate the tenancy at will, and plaintiffs would be tenants at sufferance and defendants would have the right to enter and occupy the buildings and dispossess the plaintiffs; but the presiding justice ruled otherwise, and instructed the jury that there was no evidence in the case which would justify them in finding that the tenancy at will was terminated by mutual consent. Yerdict for plaintiffs $350 ; and the defendants alleged exceptions.</p>

On report. Assumpsit on a policy of insurance for $5,000, on a house in Deering, held by them at the time of the loss, by foreclosure of a mortgage for $3,500. The house was of the admitted value of $5,000. The facts appear in the opinion. The policy shows that when it was issued, the defendants had notice that Mrs. Merrill had a mortgagor’s title, and the plaintiffs, a mortgagee’s title. Since then neither of them has done any act affecting the title.

On REPORT. Writ op entry, for Pickering’s island, in the county of Hancock, and in Penobscot bay, near Little Deer island westerly of and contiguous to the town of Deer Isle; tbe declaration not stating whether or not it lies within the limits of any town. The facts are stated in the opinion.

<p>Bill IN equity, asking the construction of a will.</p>

<p> Arbitration. </p> <p>The submission recited that the parties “do hereby submit all demands, claims and accounts which the said ffm. H. Deering (plaintiff) has against the city of Saco, on account of the construction of said Gooch street bridge, or growing out of, or resulting from the same in any way,” etc. Meld, that the claim was sufficiently specified and signed and being incorporated into the submission was “ annexed,” in compliance with R. S., c. 108, § 2; and also Meld, that not having raised the question of specification, signing and annexation of the claim, before the referees, the defendant waived the objection.</p> <p>The fact that the contract submitted was in contravention of R. S., c. 3, § 28, was raised before the referees. The submission was unconditional. Meld, that in the absence of any suggestion tending to impugn the integrity of the tribunal selected by the parties, their decision was final.</p>

ON REPORT. Assumpsit on this note. “ Chester, March 25th, 1876. Five months after date, I, or we, promise to pay James Lawler, or order, one hundred and fifty dollars, for value received, negotiable and payable at Eastern Ex. Company, Lincoln, Me., without defalcation or discount, with 6 per cent interest from date until paid. (Signed) B. L. Lovett. Luther L. Lovett. Witness — G. Stetson. Post Office, Lincoln, county Penobscot.” Indorsed, James Lawler, James P. Farrell.

On report. Writ of entry, for a certain piece of land with the buildings thereon, situate in Oldtown, in the county of Penobscot, and bounded as follows, to wit: “ Beginning at the southeast corner of the lot of land occupied by Moses Buck, in June, 1862, and erroneously called lot No. 29 in a levy of this plaintiif against said Moses Buck, made June 9, 1862; thence northerly along the west side of the Bennock road, to a point opposite the centre o the front door of the…

On exceptions from the superior court. Assumpsit, ou account annexed, for five loads of corn, valued at $74.12. Credit, $37.06. Balance, $37.06.

<p>On exceptions from the superior court.</p> <p>Trespass quare clausum.</p> <p>The defendant set up a right of way over the locus in quo, which was the upland mowing field of the plaintiff, for taking off marsh hay from his marsh adjoining the premises on which the trespass was alleged to have been committed, and introduced evidence tending to show that such right of way had been acquired by him and those under whom he claimed, by prescription.</p> <p>The plaintiff claimed that there had never been an adverse or continuous use of the way in question for said purpose, for twenty consecutive years, and introduced evidence tending to show nonuser, an abandonment and an interruption of use of the way, and that the line of travel over which the hay had been taken off was not the same each year.</p> <p>The presiding justice instructed the jury as in the opinion appeal's; and the defendant alleged exceptions.</p>

On exceptions. Assumpsit on the following paper, dated Portland, November 21, 1856, signed by the defendant and addressed to Mr. Charles Mussey, Portland: “ Brother Charles : — The re-building Mussey’s Row, which was destroyed by fire a short time after my return, in June last, has occupied pretty much the whole of my thoughts, as well as time, this season.

On exceptions and motions, from the superior court. Debt, brought under c. 232, of the public laws of 1874, to recover a tax assessed on personal property of the defendant for the year 1875. The plea was nil debet, with a brief statement that the defendant was not, on the first day of April, 1875, an inhabitant of the town and liable to taxation therein ; and that the tax was not legally assessed.

ON EXCEPTIONS. Case for injury from a defective highway. The defect alleged was a boiler weighing eight tons, which was hauled on trucks over the public highway from Kittery station towards the navy yard, its destination, and left in and partly over the wrought portion of the highway, from six o’clock, [probably in the afternoon of] June 21, 1875, until seven o’clock the next morning, when the accident occurred.

ON motion, from the superior court, by the defendant for a new trial because, among other grounds, of the misconduct of Edward S. Hacker, one of the jurors who tried the cause.

Bill in equity, to redeem a lot of laud in York, in the county of York, known as the McIntire stand, and praying that the-defendants compensate the plaintiff for the value of the buildings destroyed by fire, and account for the insurance money obtained thereon.

ON motion of the defendants to set aside the verdict, which was for the plaintiffs. Case for injuries received by plaintiff wife from an alleged defect in a highway.

Assumpsit for supplies furnished by plaintiffs to Miss Knowles, as a pauper, whose settlement was alleged to be in the defendant city. The only question was one of settlement.

On report. Trespass q. c. f., and for cutting and carrying away grass. Both parties claimed title to the loeus in quo under their deeds of parts of the Mitchell farm, the southern boundary of which was the centre of a road existing at the time the parties took their deeds, but discontinued before the time of the alleged trespass. The defendant’s deed called for twenty acres of the eastern part of the farm, and the plaintiif’s for the residue.

<p> Frauds, statute of. </p> <p>A contract for the conveyance of real estate notin writing is void by the statute of frauds.</p> <p>When a party to such contract has complied with its conditions and made all the payments required by its terms, he is entitled to recover back such payments in case the other party refuses to perform on his part.</p> <p>hTor will it defeat his right of recovery that he is in possession of the premises agreed to be conveyed.</p>

On exceptions. Debt on poor debtor’s bond. Plea, nil debet, with brief statement that the bond was not a statute bond, because among its conditions was this, that the debtor would “ take the oath prescribed in the 28th section of c. 113 of the It. S.” The words “ 28th ” were printed in the bond taken by the officer. The oath referred to was prescribed by the 28th section It. S. of 1857.

On exceptions. Assumpsit on a parol promise, to recover compensation for the flowing, by the defendant’s dam, of the plaintiff’s interest in certain land, from March 12, 1872, to date of writ, September 7, 1876, at $25 per year.

<p> Will. Trust. </p> <p>The will says: “ I give and devise my estate, real and personal, as follows: To each and all my children an equal part or proportion of all and singular my property; to (naming two sons and five married daughtez’s) one-seventh part-to each of them and their heirs, with the proviso, that the parts and proportions hereby devised and Imqueathed to (naming four of the daughters) and their heirs, instead of pafinginto their hands, is to go into the hands of J S and G- M P, whom I hereby appoint trustees, to hold, manage and dispose of said parts, and the property received therefor, for the use and benefit of said (naming the four daughters) and their heirs, according to the discretion of said trustees. Held: 1, That the trust for the use and benefit of the heirs of his daughters indefinitely, as well as for the use and benefit of his daughters, was void for perpetuity; 2, That, the trust being void, the absolute gift remained in full force and unimpaired.</p> <p>A devise, if limited to vest within a life or lives in being and twenty-one years, adding, however, in case of an enfant en ventre sa mere, sufficient to cover the ordinary period of gestation, is good; but such limitation, to be valid, must be so made that the estate devised not only may, but must necessarily, vest within the prescribed period.</p> <p>In a subsequent clause, the will says: “In case that S E (one of the daughters named) should die befoz’e her husband and leave no childz'en, I will that her part, after the expiration of six years, be transferred by the trustees over to the parties of the six other heirs, and be equally divided between them.” Held: That this special clause is so connected with and dependent upon the trust clause, if that fails, this will fail with it; that any other construction would defeat the prevailizig purpose and manifest intent of the will, which was to give to each and all of his children “an equal part and proportion of all and singular his property.”</p> <p>The tenure of trustees is to be measured by the powers given and the duties imposed upon them.</p> <p>A trust never fails for want of trustees. The circumstance, that there are no words of limitation or devise to the trustees, cannot affect or change the result.</p>

On exceptions. Trespass guare clausum fregit. The defendant offered in evidence a deed of the locus in quo, from Cornelius T. Richardson to himself, which closed thus : “ Cornelius T. Richardson. [L. S.] Signed by David House in presence of and by the request of C. T. Richardson. E. B. House, David House. Signed, sealed and delivered in presence of A. Barker, David House.” The deed was duly acknowledged and recorded.

On report. Assumpsit against George Moore on a promissory note signed “ George Moore, Treasurer of Mechanic Falls Dairying Association,” and indoi'sed and delivei’ed to the plaintiff before suit commenced. ' The defendant offered to prove that he was treasurer of the Mechanic Falls Dairying Association, a corpoi’ation duly established by law when the note in suit was signed and delivered; that he had authoi’ity to sign the corporation’s name to the note ; that the…

On exceptions, from the superior court. Assumpsit on account annexed for boots and shoes delivered defendant’s wife, partly during cohabitation and partly after the defendant and his wife had separated. The verdict was for the plaintiff; and the defendant alleged exceptions, stated in the opinion.

<p>On report.</p> <p>Replevin for ninety-four hard wood logs valued at $350, cut, marked and hauled by William Gr. Heselton, who sold to the plaintiffs, and caught at Waterville by the defendant and turned into his boom. Writ dated October 3, 1873.</p> <p>Plea, general issue, with brief statement of title in defendant.</p> <p>Plaintiffs put in evidence a deed from M. W. Berry, treasurer of the town of Concord, so describing himself, and not “in the name of the town,” to Corydon Felker, dated and acknowledged December 13, 1867, of the northerly half of No. 11, in range 5, in the town of Concord, one hundred acres, consideration $8.73. Also deed from same to same, of same date, of three hundred and twenty acres, consideration $17.04.</p> <p>Also deed from Corydon Felker to "William G. Heselton of both the above described lots, consideration 8105.</p> <p>Also assessment of non-resident taxes of the town of Concord for the year 1866, with other matters unnecessary to state.</p> <p>The defendant put in evidence deed from William Xing to himself, of August 11, 1836, conveying No. 11, in range 5, in Concord, one of the pieces described in the deed to Felker, and the land from which the timber in question was cut.</p> <p>contended that under law of 1878, he bad made out a prima facie case by the production of treasurer’s de'ed.</p> <p>contended that the act of 1878 was not retrospective, and, if it were, that the “treasurer’s deed,” not being in the name of the town, was of no avail, even towards making out a prima facie case.</p>

On report. Petition, drawn under section 36 of c-. 218, of the acts of 1877, for reducing the deposit and dividing the loss pro rata among the depositors, and for such other orders and decrees as are authorized under that section. The following report was drawn up by Appleton, C. J., presiding : “ Penobscot, ss. Supreme judicial court, April term, 1878.

<p> County commissioners. Ways. Appeal. </p> <p>E. S., c. 18, § 2, provides when a petition for the location or discontinuance of a highway is presented to the county commissioners, that, before giving the prescribed notice of the time and place of their meeting, they must be “satisfied that the petitioners are responsible, and that an inquiry into the merits is expedient.” Held, that, on these preliminary questions, their judgment is conclusive, and no appeal lies to their decision.</p>

ON EXCEPTIONS from the superior court. Search AND seizure coMplaint and warrant, before the municipal court of the city of Portland, in 1877, for violation of the liquor law.

<p>Statutes, — construction of. Jurisdiction. Appeal. Abatement.</p> <p>All the existing statute provisions upon-'a particular topic should he examined to ascertain the meaning of each; and a meaning which is found to he incompatible with any plain provision must be rejected.</p> <p>The action for money had and received, commenced by one claiming to be a creditor of an insolvent estate under administration, in pursuance of the provisions of R. S., c. 66, § 11, cannot be regarded as a probate appeal cognizable by the supreme judicial court as the supreme court of probate without regard to the amount involved; this construction being inconsistent with the provision in § 14 for the commencement of such actions before justices of the peace, who have no appellate jurisdiction from the probate court.</p> <p>Section 11 simply authorizes the parties concerned, in case of dissatisfaction with the decision of the commissioners of insolvency appointed by the probate court, under certain provisions and restrictions, to transfer the question between the claimant and the estate from the probate court to any court, proceeding according to the course of the common law which may have jurisdiction of the parties and the case, for decision.</p> <p>Where an action of this description is commenced under said § 11 in Cumberland county, and, by reason of the amount claimed, it falls within the exclusive original jurisdiction of the superior court for that county, it must be brought in that court, and if brought in the supreme judicial court, it is abatable.</p>

ON EXCEPTIONS from the superior court. Assumpsit on this note: “$1,289.63. For value received we promise to pay John Tenney, or order, twelve hundred eighty-nine dollars sixty-three cents on demand, with interest annually. Portland, Maine, May 26th, 1868.

ON report, from the superior court. Search and seizure process, against the person, on complaint made and sworn to before the judge of the municipal court for the city of Portland, and of the form following : “ L. T. Chase, of Portland, in said county, competent to be a witness in civil suits, on the twenty-ninth day of March, A. D. 1878, in behalf of said state, on oath complains that he believes that on the twenty-eighth day of March in said year, at said Portland,…

On exceptions, at the April term, 1878. Assumpsit against the maker, on an unwitnessed promissory note, dated December 14, 1870, payable one year after its date; ad damnum $600. The defendant was described as resident of Cornville, county of Somerset; plaintiif, of Portland, county of Cumberland.

<p>On bepobt.</p> <p>Assumpsit on a receipt given by the defendant to the plaintiff, as an attaching officer, for goods attached in a suit of Gilman M. Keyes v. Rebecca J. Parker, brought under B. S., c. 113, § 51, for knowingly aiding and assisting a debtor, Clement Parker, in a fraudulent transfer of his property to secure it from his creditors, and particularly from Keyes. The defendant offered to show that there were then pending in this court, cross suits between Keyes and Clement Parker, to determine whether said Parker is indebted to Keyes; that the suits, together with the suit of Keyes v. Rebecca J. Parker, were entered in this court at the April term, 1876; that Bebecca employed attorneys to defend the suit against her; that prior to the April term, 1877, she discharged her attorneys and employed another attorney, who came into court and consented to a default in her case, for the amount of the officer’s receipt; that attorneys for the receiptor offered to appear and defend his rights. The presiding justice declined to allow them to appear, and ordered judgment for the plaintiff.</p> <p>The defendant offered further to show that Clement Parker was not indebted to Keyes, and that the judgment was obtained by the fraud and collusion of Rebecca with Keyes, for the purpose of creating a liability against Beacham, as receiptor, and that Keyes agreed not to enforce the judgment against Rebecca.</p> <p>If the law court are of opinion that the foregoing facts would be admissible in evidence and constitute a defense, then the action is to stand for trial; otherwise, defendant to be defaulted.</p>

<p>Trustee process. Contract. Assignment. Name. Wortls, — wages,-earnings.</p> <p>An assignment of a contract is not tlie assignment of wages, and need not be recorded under c. 93, § 1, of the acts of 1876.</p> <p>A contract is binding when signed by tbe party making it, though he may use an English translation of a French name, as Seam for Couture, in his signature thereto.</p>

ON EXCEPTIONS. Beplevim of furniture, on writ made one day and dated and served the next, where the plea was the general issue with a brief statement of property in the defendants and not in the plaintiff, and a ruling of the presiding justice that if the property was lawfully iu possession of defendants a demand was necessary before action commenced, more fully stated in the opinion.

On exceptions. Assumpsit, where the verdict was against the insane defendant for $27.7», and the plaintiff claimed costs, $48.86, against the guardian, which the presiding justice pro forma allowed; and the guardian alleged exceptions.

<p>ON EXCEPTIONS.</p> <p>Assumpsit on this note, made December 4, and dated back:</p> <p>“ $398.50. Clinton, Oct. the 1, 1874. One year after date, I promise to pay to the order of C. B. Mahan, agent, three hundred ninety-eight 50-100 dollars, at the People’s National Bank, Waterville, Me. Yalue received. (Signed) El'viu Jaquith.”</p> <p>The following was executed at the same time :</p> <p>“ Office of the Granite Agricultural Works. Proprietors of the Granite Mower and Reaper. Manufacturers and dealers in agricultural implements, iron and wood-working machinery.</p> <p>Lebanon, N. EL, Dec. 11, 1874. Elvin Jaquith, of Clinton, Me., bought of Granite Agricultural "Works</p> <p> </p> <p>“ Received payment by note payable at the People’s National Bank, Waterville, Me. We hereby agree with the said Jaquith that if he should not be able to sell all the above goods before July the 20th, 1875, and shall notify us of such fact, by mail or otherwise, at that time, we will then send a general agent to assist him in the sale of the same. If then neither our agent nor the said Jaquith can succeed in selling all the above goods before August the 1st, 1875, then we will take them off his hands and pay him the same prices at which they are now billed to him, with all money paid out for railroad freight charges on same from our factory. We hereby reserve the right to send an agent to assist the said Jaquith at any time when we deem it necessary, in order to secure the sale of the said goods, and will account to the said Jaquith for all goods so disposed of by us. It is also further agreed that if the said Jaquith shall succeed in selling all the said goods, either alone or with our aid, before August the 15th, 1875, then the said Jaquith shall pay his obligation given this day for the same, in good faith, and the same as if this agreement had not been given at all.</p> <p>“ The above goods shall be well housed and properly cared" for at all times.</p> <p>“ All the above goods are warranted from flaws or other defects in manufacturing.</p> <p>“I hereby accept the terms of the above agreement, and will accept the goods named above in good faith, and do the best I can, soon as sent, to sell the same and pay for them as above specified. (Signed) Elvin Jaquith. Granite Agricultural Works. C. B. Mahan, agent.”</p> <p>There was evidence that this note and the one described in Ticonic Bank v. Bagley, ante, 249, were sold to S. Heath, the plaintiff’s testator, for $600, without knowledge on his part of any infirmity therein.</p> <p>The jury took the case under instructions and retired, and subsequently came into court and reported that they w'ere unable to agree upon the facts. The presiding justice then addressed them as follows:</p> <p>“ Gentlemen. Rather than there should be a disagreement in this case I will give a rule that will relieve you from any trouble. I had serious doubts whether I should submit this case to yon in the manner that I did. It has been once before the law court upon the evidence substantially as developed here, and the court held that the evidence was not sufficient to authorize a verdict in favor of the defendant, and sent it back again. And 1 instruct you now that the evidence is not sufficient to authorize a finding in favor of the defendant, and you may return a verdict for the plaintiff for the amount of the note, with interest from the 4th of October, 1875, to the present time.”</p> <p>The verdict was for the plaintiff; and the defendant alleged exceptions.</p>

<p> Mortgage. </p> <p>A man may make a valid mortgage for the payment of money without particularly describing the writing which may be evidence of the debt, or without even giving any independent written evidence thereof.</p> <p>But he is not at liberty to substitute a different condition, by parol evidence, for that which he expressed in his deed.</p> <p>A man may mortgage to an agent in order tó procure credit from his principal, and the agent may enforce the mortgage as the trustee of his principal.</p> <p>Plaintiff was selling agent of a wholesale firm of whom defendant desired to purchase goods on credit. To obtain the credit it was arranged between plaintiff and defendant that plaintiff should become surety on defendant’s note to the firm on four months, for the price of the goods, and defendant should give plaintiff a mortgage on the property demanded in this suit, conditioned for the payment to the plaintiff in four months of a sum of money equal to the amount of the note. This was all done, and defendant had the goods and made partial payments to the plaintiff as agent, which were accounted for on the note. He resisted the suit on the mortgage before the presiding justice who heard the case at nisiprius, without the intervention of a jury, claiming that the conditional clause in the mortgage did not sufficiently describe the plaintiff’s liability on the note and was contradictory to it, and because plaintiff had not then paid the note to his principals. But the j ustice ruled the suit maintainable, overruled defendant's objections and ordered a conditional judgment for an amount equal to the balance due on the note. Held, no error.</p> <p>In the same case, the plaintiff signed and gave to the defendant this writing : “ Whereas said Hawes has this day given to said Varney a bill of sale of certain parts of five schooners to secure a debt of $1,476. Now if the said Hawes shall pay said debt in four months from this date, then the said Varney shall re-convey such said parts of the vessels described in said bill of sale.” The vessels remained in the custody of the defendant for more than four months, after which one of them was lost, Held: The finding of the presiding justice negatives the defendant’s claim that there was ever any absolute and completed sale to the plaintiff of the part of the vessel which was lost at sea, while in defendant’s possession and control, or any agreement or understanding that would entitle the defendant to have the value thereof allowed as a partial payment. It was designed and treated throughout as security only; and never having been in plaintiff’s possession or control, and he never having received any of the proceeds thereof, he cannot be required to account for its value as a payment on the debt.</p>

On report. Assumpsit for money and labor, to which no defense was made, the contention being as to the liability of the alleged trustee.

Replevin of 3,800 tons of ice at Boothbay, stated in 62 Maine, 341, as the case first came before the law court, where it was decided that the defendant recover and that he have damages assessed in this action if he so elect. Afterwards at the April term, 1875, the officer by leave of court to amend his return according to the facts, made the following amended return dated, Lincoln ss.

On exceptions from the superior court. Indictment under K. S., c. 118, § 23, for maliciously threatening to accuse the complainant, Oliver II.

<p> Fraudulent conveyance. </p> <p>Chapman was the assignee of a note and a mortgage securing it, of two pieces of land to one of which the original mortgagor gave a warrantee deed to Emery, and to the other of which the mortgagor’s interest came to Campbell by intermediate assignments through Bunker, each assignee agreeing with his assignor to pay the whole note secured by the mortgage of the two pieces. Chapman transferred his interest in the note and mortgage to Campbell’s daughter. An indictment stating these facts and that the transfer by Chapman was made to defraud Emery and Bunker: Held, to charge no offense known to the law, and particularly that it does not sufficiently set out a fraudulent conveyance under K. S., c. 126, § 3.</p>

On exceptions. Action oe review. A petition for writ of review was granted at the February term, 1876. The docket entries under the action of review are as follows : “ Madigan & Donworth and H. L. Whitcomb for Pl’ff. — James Mulholland for Def’t. Feb. term, 1877, (2) motion to dismiss; (7) leave to enter the action.

<p> Bond. Poor debtor. Pleading. Venue. Variance. </p> <p>In an action on a poor debtor bond executed in accordance with R. S., c. 113, § 24, the plaintiff in the first instance need not count upon any other than the penal part of the instrument, leaving the condition to be pleaded by the defendant if it affords him any defense.</p> <p>The penal part of the instrument will maintain an action, the breach being the non-payment of the money.</p> <p>The bond in its terms appeared to be signed by the defendants at Lewiston, in the county of Androscoggin. The declaration was that the defendants, “at said Lewiston, to wit, at said Auburn,” bound and acknowledged themselves. Meld, that the venue was properly enough laid, and that there was no variance between the bond and the declaration.</p> <p>Form of a declaration where the obligees are wrongly named in the bond. See statement of the case.</p>

On exceptions. On the acceptance of the report of a committee appointed by this court. The committee had made a former report that the proceedings of the commissioners in discontinuing said way be reversed in part, viz: “From the north end of Porter Hill road (so called) to the line of land owned and occupied by William Coombs, and the residue of the proceedings of said commissioners be affirmed.” That former report was re-committed.

Bill in equity, praying for -an order to account and to be allowed to redeem, setting out, in substance, that, April 30,1870, the plaintiff quitclaimed the premises to the defendant, Jordan, as security for the payment of $451.08 then owing; and on the same day, and as a part of the same transaction, Jordan gave him a bond of defeasance, on condition of payment of that sum in one year from date with interest.

On motion. Case against an innkeeper, to recover the value of the plaintiff’s mare, put into the defendant’s stable December 4, 3875, and found dead therein the next morning, alleging negligence on the part of the defendant. Jesse Healey drove the plaintiff’s mare from Concord to Solon and delivered her to the defendant’s hostler at her inn, to be kept; till the next day, Healey himself not stopping at the inn, but with his son-in-law in the same village.

On exceptions and motion. Trespass, quare clausum, stated, as it came before tlie law court on a former motion, in 62 Maine, 20. The defendant in bis brief statement admitted the acts alleged as trespasses, but justified as highway surveyor, constructing a new piece of road laid out over the plaintiff’s land by the county commissioners as an alteration of an existing highway within bis limits.

<p>On repoet.</p> <p>Writ oe entry, for about 13,300 acres of wild land in Kings-bury, in the county of Piscataquis, for which the defendant ■ paid $598.32, on an execution sale. The plaintiffs put in evidence tending to show that they were in possession under deeds making a prima facie chain of title for a full and valuable consideration. The identity of the land was not questioned.</p> <p>The defendant put in copy of record of a judgment recovered at the October term, $. J. 0. Penobscot county, 1873, in favor of the county of Piscataquis, against the inhabitants of Kingsbury.</p> <p>Also, execution issued on the judgment, dated April 10, 1875, for the sum of $495.48 damage, and $16.08 costs of suit, with the following direction to the officer: “ We command you, therefore, that of the goods, chattels or lands of said debtor within your precinct you cause to be paid and satisfied unto said creditor,, at the value thereof in money, the aforesaid sums, being $511.56 in the whole, and legal interest on the debt and costs since the rendition of judgment, together with forty-five cents more for this and two former writs, and thereof also to satisfy yourself for your own fees.”</p> <p>Also the officer’s return of seizure and sale to the defendant of the lands embraced in the suit for the sum of $598.32.</p> <p>The defendant submitted the following motion to amend the execution, the full court to pass upon it with the same effect as at nisi jjrius : “ Defendant moves this court for leave to amend the execution issued from the clerk’s office, S. J. G. Penobscot county, on which the officer seized and sold the land in dispute, and the former executions on the same judgment.</p> <p>“ That J. H. Burgess, the present clerk of said courts, add to and insert in said executions in the proper places, ‘ that of the goods and chattels of said inhabitants within your precinct, and of the real estate situated in said town of Kingsbury.’</p> <p>“ That E. C. Brett, the former clerk who issued the executions, be permitted to make the amendments aforesaid.”</p> <p>There was evidence that the defendant was, at the time of the seizure and sale upon execution, county attorney for the county of Piscataquis, the creditor in the judgment execution, and had the control of the proceedings by the officer in fixing the time and the place of sale, which was at the county attorney’s office; that, though the statute notice thereof was given, the plaintiffs had no notice in fact of any proceedings hostile to their ownership until the year had passed within which they had by law a right to redeem from the sheriff’s sale.</p> <p>thought the execution was not amendable, and contended that, if it were, the power of the court to amend was discretionary, and that the ■amendment ought not to be granted in such a case as this.</p> <p>contended that the court had the power to amend, referred to the adage of “ glass houses,” and said that the title under which the plaintiffs claimed was a tax title for which their grantor paid $6.80, and was void for informality.</p> <p>replied that his clients had a warranty deed, for which they paid full consideration, and under which they were in possession.</p>

On report. Case for injuries from defective highway. Writ dated April 6, 1877. Plea, not guilty, with a brief statement that the defendant did not notify the municipal officers within sixty days after the injury was alleged to have been sustained, by letter or otherwise in writing, setting forth his claim for damages and specifying the nature of his injuries and the nature and location of the defect which caused such injury.

Case on a warranty of a shingle machine, alleging deceit and fraud and breach of warranty. On report, as follows: “ The defendant is in bankruptcy, and filed his petition after the cause of action, if any, accrued. If a discharge or composition in bankruptcy, to which plaintiffs did not consent, would be a bar to plaintiffs’ claim, the action is to be entered neither party, otherwise to stand for trial.”

<p>On report.</p> <p>Debt, to recover tax due on deposits from May, 1876, to November, 1876. Writ was dated February 1, 1878.</p> <p>The trustees, finding that the bank was insolvent, voted, April 29, 1876, to “close the bank to receiving or paying deposits for the present.” No deposits were received or paid until November 14, 1876, when business was resumed, in accordance with a vote of the trustees passed October 5, 1876. After the suspension, and while the bank examiner was giving directions in regard to conducting the affairs of the bank, and between May and November, negotiations were carried on with the depositors to “ scale down ” their deposits twelve and one-half per cent, and agreements were signed by which depositors agreed to exchange their books for new ones crediting them with 87^- per cent of their deposits. These arrangements were consummated so that, November 14, 1876, the exchange of deposit books commenced, and the depositors’ accounts were reduced twelve and one-half per cent, as of April 29, 1876.</p> <p>The treasurer of the bank returned this reduced amount to state treasurer, in November, 1876, viz : $365,828.40, on which amount a tax to the state was duly assessed amounting to $1,829.14. which, if valid and binding on the bank, was due and payable December 15, 1876, and which was duly demanded and remains unpaid.</p> <p>. The statute of 1875, c. 47, § 1, in amendment of preceding statutes, provides that “ every savings bank in this state shall return under oath to the state treasurer the average ’amount of its gross deposits as held on the first Saturday of each and every month for the then last preceding six months,” etc., “ and if any bank neglects to pay when due a warrant of distress may issue.” This law of 1875 gave the right to tax. The statute of 1876, c. 115, § 1, gave the remedy by action invoked here. The statute of 1875 giving the right, was repealed by e. 218 of laws of 1877, without a saving clause. Being a right created by statute and existing only by virtue of the statute, its repeal defeats the right itself, not already vested by a judgment. Butler v. Palmer, 1 Hill, 324, quoted from in Coffin v. Rich, 45 Maine, 507, 512. In this case, there was no judgment and no suit commenced before the repeal.</p> <p>in reply.</p> <p>In Coffin v. Rich, there was no contract or privity between plaintiff and defendant, and no judgment before the repeal of the statute. The plaintiff had no right of action against the stockholder until he got his judgment against the corporation. The statute giving the action against the stockholder was repealed in 1856. The plaintiff obtained his judgment against the corporation in March, 1857. Before his right could arise the statute was repealed. Here the tax and the right to have it were in existence before the repeal. Though a tax is not technically a judgment, it is in the nature of a judgment, it was assessed, the warrant of execution could issue, the state could take, the right was vested. Not judgments only, but rights by contract, and rights to compensation, are saved from the consequences of repeal.</p>

On report. Case for obstructing, on defendant’s premises, a drain or sewer leading from plaintiff’s cellar through and across a highway, through and over ground in possession of the defendant, and thence until it vented and discharged itself into a brook below.

On report. Assumpsit on a promissory note for $500, dated Belfast, November 30, 1872, and payable to the defendants four months after date, wherein Harriman & Oo. were principals, and Frye & Locke, sureties. Defense, material alteration. The word July was apparently written and partially erased, and November 30 written afterward.

<p>On exceptions, from the superior court.</p> <p>Assumpsit, on a promissory note dated May 30, 1857, by the indorsee, to whom it was indorsed after maturity, against the maker.</p> <p>The justice of the superior court tried the action without a jury, and found as matters of fact, that, a certain sum as interest, exceeding six per cent, was included in the principal of the note ; that additional sums had been paid by the defendant to the payee, at different times, and by tlieir mutual consent, applied to the subsequently accruing interest, exceeding the rate of six per cent, and that there was no proof of actual knowledge on the plaintiff’s part, of the payment or inclusion of interest exceeding six per cent. And the court ruled as matter of law that, the St. of 1870, c. 169, having repealed without exception li. S. of 1857, c. 45, the reservation of excessive interest in the principal of the note, or the receipt of such interest after the maturity, affords no legal ground of defense; and that 1he amount so received and applied as excessive iuterest, is not to be deducted from the amount due on the note, and that the plaintiff was entitled to judgment for the amount of the note according to its tenor.</p> <p>The defendant alleged exceptions.</p> <p>contended that his clients had vested rights under the statutes in force when the contract was made; that these statutes had never been unqualifiedly repealed ; that even if the complex legislation of 1870 should be construed as an unqualified repeal of R. S. of 1857, c. 15, yet those statutes, not taking effect till 1858, long after the date of the note, did not depi’ive him of his rights under R. S. of 1811, c. 69, and amendments thereto, because the repealing act of 1857, § 2, provided that “ the acts declared to be repealed remain in force . . . for the preservation of all rights and their remedies.”</p> <p>To the point that a note given for interest above the legal rate was without legal consideration, counsel cited Goodrich v. Buz-zell, 10 Maine, 500. The defense is open to an action by the indorsee. Wing v. Dunn, 21 Maine, 128. Tufts v. Shepherd, 19 Maine, 312.</p> <p>The consideration being in part at least for excessive interest which the statute in terms declared to be “ void,” a simple repeal of the statute would not validate it. Hathaway v. 'Moran, 11 Maine, 67. Bobinson v. Barrows, 18 Maine, 186. And that part of the consideration representing excessive interest should be deducted from the principal. And not only the usurious interest reserved but also that received. Larrabee v. Lumbert, 32 Maine, 97.</p> <p>Other points taken by counsel are stated iu the opinion. .</p>

ON exceptions from the superior court. Assumpsit to recover $100, deposited by plaintiff with defendant as stake-holder on a wager. The evidence, not contradicted, tended to show that one Henry Milliken, a few days after the presidential election, bet $25 to $100 that Hayes would be the next president of the U. S.; the plaintiff took the bet.

On EXCEPTIONS. Assumpsit for money bad and received, for the sum to which the plaintiff is entitled by virtue of a certain scrip or certificate of indebtedness, with dividend and interest to date of writ, October 7, 1875, entitled “ the consolidated scrip of the Merchants’ Mutual Marine Insurance Company,” numbered 297, dated Bangor, July 19, 1872, signed J. B. Foster, president, and of the following tenor: “ This certifies that John A. Buck is entitled to two hundred…

On report. Case, under the statute regulating division fences, to recover double the value of a fence built by the plaintiff.

<p>On exceptions.</p> <p>Petition of John L. Brown, of Bowdoinham, for certiorari, representing that a town way was duly laid out in Bowdoinham, and that Robert C. Brown and eleven others petitioned the county commissioners for its discontinuance, and that the county commissioners granted the prayer of the petition, etc. It did not appear by the petition of Bobcrt C. Brown and others, by the record of the commissioners, or otherwise, that Robert or any of the eleven had any interest in the subject matter. Por that, and other reasons which in the opinion appear, the petitioner for cer-tiorari contended that the commissioners had no jurisdiction. The justice presiding refused to grant a writ, ruling as matter of law upon the face of the papers and proceedings that the commissioners had jurisdiction in the premises; and the petitioner for certiorari alleged exceptions to that ruling.</p>

<p> Exceptions. Trial. Law and fact. </p> <p>When a cause is referred to the justice presiding, it is no part of his duty to report the evidence.</p> <p>In such case, exceptions lie only to his rulings of law on facts found by him.</p> <p>His findings of fact are conclusive and cannot be revised on exceptions.</p>

On eepoet. Complaint for flowage, inserted in a writ of attachment. The land of complainant is flowed by water raised by a dam constructed across a stream by respondent’s intestate on his own land in 1872. A former dam in the same place was standing in 1853. Two former mills, both worked by water from the pond, formerly stood at or near the spot where stands the present mill, which was erected in 1852, seven or eight rods below its last predecessor.

ON exoeptions from the superior court. INDICTMENT (omitting the formal heading and conclusion), “that William W. Euby, of Portland, in the county of Cumberland, laborer, on the fourth day of August, in the year of our Lord one thousand eight hundred and seventy-seven, at said Portland, in said county of Cumberland, did knowingly and willfully, and without having any legal appointment or authority therefor, keep and maintain a common nuisance, to wit, a certain room in a…

<p> Certiorari. County commissioners. Amendment. </p> <p>The legal location of the way was properly alleged in the petition to the county commissioners, the allegation presenting a case within their jurisdiction. Held, that, after final judgment, it must he understood that these allegations were satisfactorily proved, although the proof may not he set forth in the record. Held, also, that it was too late for the town, after the result of the proceedings against it and after final judgment, to cause its records to he amended so as to show that the way was not legally accepted, and thereby mate the amended records the foundation for a petition for a writ to quash the proceedings before the commissioners.</p> <p>The alleged error of want of notice to the town of the time and place of hearing before the jury did not appear in the records of the county commissioners, hut in the records of the supreme judicial court. Held, that when there is no error apparent in the record of the commissioners, and the error appears only in the records of the supreme judicial court, of the proceedings in that court, a writ of certiorari is not the proper remedy to correct such error. The remedy is by writ of error.</p>

On exceptions and motions from the superior court. Case by an infant three and a half years of age, by his father and next friend, for negligence of defendant’s teamster, Fitzgerald, declaring that he ran over the plaintiff with a horse and wagon, on Center street, Portland, November 2, 1875, and thereby the leg of the plaintiff was bruised and broken, etc. There was evidence tending to show that Center street was one of the most frequented streets in Portland; that its…

On exceptions. Case for malicious prosecution, for an alleged forgery of an order on Eaton Shaw of Portland, state commissioner, for four barrels of rum, in the name of N. G. Bryant, agent of the town of Palermo. The plaintiff, Pullen, after a three days’ hearing before a trial justice, was discharged on motion of L. M. Staples, the attorney for the complainant, Glidden, and afterwards brought this action.

On exceptions. Petition eor partition of a farm in Dresden, formerly owned by Peter Puchard, who died in 1827, leaving a will which gave a life interest therein to his daughter, Mary Reed, with a life interest over to his daughter, Nancy Parks.

Debt for interest on a legacy, after payment of the principal'. On agreed statement, the substance of which appears in the opinion. The writ was dated November 23, 1877. The estate was inventoried at $19,207.82; and the residue, after payment of the $13,000 to the societies, was bequeathed to relatives. The personal estate, to the amount of $12,200, was in notes, which matured and were paid in November and December, 1876.

ON Motion of plaintiff to set aside the verdict against him, on the ground that it was against law and evidence.

On bepobt. Bill in equity to redeem real estate under mortgage, referred to Samuel F. Humphrey, who reported in substance that John Dean, on March 3, 1854, mortgaged the premises to W. & J. Colburn, who assigned to Arthur B. Sutton ; that the mortgage remained unpaid in Sutton’s hands till the death of John Dean, intestate, insolvent, April 8, 1868 ; that Sutton then held another mortgage on other real estate, the homestead of Dean ; that, in addition to the two mortgages,…

<p>ÜN each’s ageee», stated in the opinion.</p>

<p>On motion and exceptions.</p> <p>Assumpsit, for pauper supplies furnished Dorcas T. Farrington.</p> <p>The verdict was for the “plaintiffs, which the defendants moved to set aside. They also filed exceptions.</p>

<p>The legislature has authority under the constitution to assess a general tax on the property of the state, for the purpose of distribution, under an act to establish the school mill fund for the support of common schools, approved February 27, 1872.</p> <p>The governor and council, in the performance of their duty to ascertain what county officers are elected at the general election in September, can not lawfully count the votes of a town, the return of which bears the proper signature of one of the selectmen, and the names of the two other selectmen written by other hands than their own.</p> <p>Nor in such case can they lawfully count the votes of a town, the return of which is not attested by the town clerk.</p> <p>The treaty concluded at Washington, August 9, 1843, confers the elective franchise on the subjects of the queen of Great Britain, residing on the disputed territory in the north-eastern portion of the state, at the time of the treaty and not otherwise naturalized.</p> <p>Persons born on the disputed territory within the present limits of this state have the same elective franchise as persons born on territory within the state over which the British government made no claim.</p>