Volume 69 — Maine Reports

On motion and exceptions. Assumpsit, for labor and materials on the roof of the defendants’ foundry. The plea was the general issue. The verdict was for the plaintiff, for the contract price and interest from the date of the writ. The defendants moved to set the verdict aside, and also alleged exceptions stated in the opinion.

<p> Mills. Flowage. Daws. </p> <p>A mill owner, having a twenty years prescriptive right to flow the land of another, has the right to keep up the water as high as it would be raised by a dam of the same height as the dam which he and those under whom he claims title have kept up and maintained for that period, even though the water is thereby kept more uniformly, and has flowed to a greater height than by the dam before it was repaired; and even though the land is flowed for a longer period of the year.</p> <p>The claim of the mill owner depends upon, and is limited by the effective height of the dam according to its structure and operation when in repair, and in good order.</p> <p>■Variations in the water, produced by greater or less tightness of the dam, or greater or less economy in the use of the water, or changes or improvements in the machinery and in the wheels used, are not to be taken into account.</p>

On exceptions. Indictment, “ that Daniel M. Goss, of Minot, in the county of Androscoggin aforesaid, on the first day of April, in the year of our Lord one thousand eight hundred and seventy-four, at Minot aforesaid, in the county of Androscoggin aforesaid, then aud there being a public officer, to wit: The collector of taxes of the town of Minot aforesaid, did by virtue of his said office and whilst he was employed in said office have, receive and have in his possession and…

On exceptions, from the municipal court of the city of Lewiston. Assumpsit, wherein the defendant was summoned to appear [etc.,] and answer to Ebenezer Bragdon of [etc.,] executor of the last will and testament of George Bragdon, late [etc.]. In a plea of the case [etc.,] then and there in consideration thereof, promised the plaintiff to pay him the same on demand. Then followed an account annexed for a lot of standing grass on the George Bragdon place, in Durham.

<p>On exceptions.</p> <p>Debt for taxes, as in the last head-note stated.</p>

On report. Assumpsit upon two promissory notes from the defendant to the plaintiff, dated November 29, 1875, for $50, on six months, and for $100, on nine months therefrom, given under tlie following circumstances : The wife of the plaintiff is the daughter of Samuel Pratt, deceased; in the division of whose estate certain landed premises in Oldtown were set off to her.

<p> Bounties. Municipal obligations. </p> <p>A soldier having received S300 as bounty under the act of 1864, c. 227, is not entitled to any money under the provisions of the act of 1868 for the equalization of municipal war debts, c. 276.</p> <p>Oanwell v. Canton, 63 Maine, 305, reaffirmed.</p>

On facts stated. In a plea of debt, for that tbe said defendant, tbe Dexter & Newport Railroad Company, now is, and was, on tbe first day of April, A. D. 1874, a railroad corporation, existing under the laws of the state of Maine, and doing business therein, and whose lines of railroad are, and then were, wholly within the said state, and the governor and council of said state, at a session held at Augusta, the seat of government of said state, on the 24th day of April, A.…

Exceptions and motion. Writ oe entry, dated August 4, 1876, and returnable at the September term, 1876, for a strip of land six rods wide and about twenty-four rods long, covered by a location of the Somerset Railroad Company.

On report. Assumpsit, for money had and received, to recover money assessed upon and collected of the plaintiff by the assessors and collector of taxes of the town of Limerick by virtue of a special tax. The case as presented to the law court is stated by Kent, J., in the opinion in 56 Maine, 390.

<p>On report.</p> <p>Writ of entry, brought on a mortgage deed from Mighill Mason to the plaintiff, his brother, of land in Bethel, dated November 14, 1859, and next day recorded in Oxford registry, to secure two notes of even date of $800 each payable with interest, one on demand, the other in one year.</p> <p>Plea, nul disseizin, with brief statement in substance and effect that there was nothing due on the mortgage, and that the defendant was owner by purchase of Mighill’s interest at an auction sale of his estate as a bankrupt. The brief statement also set out certain facts afterwards relied upon by way of estoppel; that at an examination of Mighill before Register Fessenden, October 25, 1876, plaintiff also appeared and stated that, Mighill owed him $166.25, and for one-half of thirty-two bales of hops, and for nothing more that he knew of; and afterwards, May 25, 1877, he appeared to prove his claim for hay, hops, flour and interest, amounting to $1823.33, not including the mortgage and notes in question ; that he then and there stated that Mighill owed him nothing that he knew of except the claim for $1323.33 specified that the property was struck off to defendant Philbrook by the auctioneer at the sum of $1295, free of all incumbrances except the taxes due thereon and the widow’s prospective right of dower; that the plaintiff was present at the sale at auction and well understood the terms and conditions and that defendant bid off the premises at the sum aforesaid, and that plaintiff then did not state or make known that he claimed any title or lien on the premises under or by virtue of the mortgage and notes.</p> <p>The plaintiff introduced his mortgage and notes. The defendant introduced evidence tending to show the facts set out in his brief statement. The plaintiff, in rebuttal, testified that, the money secured by the notes and mortgage belonged to his brother Charles Gr-. Mason, sent home by him from California in 1856; that he first used the money himself, and some three years afterwards let it to Mighill and took the notes and mortgage and kept them in a tin box belonging to Charles ; that this money was never taken into account in his dealings with Mighill; that he was not present at the sale till after the property was bid off, and then Philbrook told him that he got it a thousand dollars cheaper on account of his mortgage.</p> <p>contended that, the evidence indicated that the mortgage, as now presented, was a fraud; that the mortgage notes had been paid and taken up and new ones substituted ; and whether so, or not, the plaintiff, by his presence at the sale, by his acts and admissions there and elsewhere, was estopped from setting up the mortgage claim.</p>

On report. Assumpsit, wherein the defendants are attached, to answer to the plaintiff, “ who sues out this writ for and in behalf of the owners of schooner Burmah, whose agent he is,” on account annexed as follows: “ 1877, To cash collected by you belonging to me October 9, 1874, 8406.63. Interest to date of writ, $67.09. To cash paid you twice by mistake, $166.90. Interest on same three years, $30.04,=$670.66. Credit, by cash sent me October 9, 1874, $260.57.

On report. Action of assumpsit, for money had and received, to recover the sum of eighty-five dollars and twenty-two cents, being the amount assessed upon the plaintiff in Belfast for highway taxes for 1873, and paid by him to the collector of taxes under protest. Plea, the general issue. It was admitted that, the tax was assessed in labor and in money, and that the assessors and collector were duly sworn ; that the assessment was legal, and the officers duly qualified.

<p> Practice. Trial. Exceptions. Writ of entry. </p> <p>The law court sent down an order, that, upon amendment of the writ so as to exclude from the description of the premises demanded all that portion south of the true dividing line between the premises of the parties as determined and described by the court, the entry will be judgment for demandant.</p> <p>An amendment was filed by the demandant precisely in accordance with the order of this court, and the presiding judge at nisi priws ordered judgment for demandant. Held, that to such order exceptions do not lie.</p>

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

-On exceptions, and motion for new trial. ’ Case for damages sustained by plaintiff while traveling on the highway in defendant town, by reason of an alleged defect.

<p>Bill in equity.</p>

On exceptions. Case by plaintiffs, parents of James McGee, under act of 1872, c. 63, § 4, in amendment of K. S., c. 27, § 32.

<p>On facts stated.</p> <p>Debt on judgment.</p> <p>At the January term of this court, 1868, the plaintiff recovered judgment against the defendants for $639 damage and $27.91 costs of suit.</p> <p>On this judgment an alias execution was issued in May, 1868, and put into the hands of G. S. Bean, an officer, who immediately notified the assessors of the town of Greenfield thereof, who forthwith after said notice assessed the same, together with the officer’s fees, on the inhabitants and estates within the town.</p> <p>The defendants can prove by parol, if the testimony is admissible, that immediately after the assessment,'the assessors gave notice of the same in the manner in which town meetings for said town are notified, specifying in the notice the amount of the execution, and the fact that it had been assessed, and the several amounts assessed upon the several inhabitants, and non-resident property; that the municipal officers of the town have made diligent search for said notice and cannot find the same or any record thereof.</p> <p>On June 1, 1868, the assessors delivered to Bean a certificate by them signed of the assessment and notice.</p> <p>After the notice, divers persons, then and now inhabitants of the town, and divers other persons, then and now proprietors of lands therein, and whose names are mentioned in the list of the assessment and also in the return of Bean on the execution, respectively paid to Bean the several sums and amounts assessed upon them in the list as their due proportion of the execution aud fees thereon, as appears by said officer’s return ; and receipts were severally given the persons paying as aforesaid in the form following :</p> <p>“$12.32. Received of James Doyle twelve and 32-100 dollars on Ex’on E. E. Littlefield vs. Inhabitants of Greenfield, Penobscot ss., January term, 1868, amount of assessment as per certificate of assessors. June 4, 1868. G. S. Bean, Dep. Sh’ff'.”</p> <p>The whole amount thus collected and received was $360.85, and on June 6, 1868, said Bean returned the execution, as satisfied in part, to the clerk of this court.</p> <p>On June 9, 1868, a pluries execution was issued for the balance then due, to wit, $318.14, and placed it on the same day in the hands of the same officer, who thereafterwards collected from a part of the remaining inhabitants of the town and proprietors of lands therein, who had been assessed, the amounts and sums assessed against them respectively, aggregating in all the further sum of $269.78. And on September 8, 1868, said Bean returned the execution satisfied in part for the amounts aforesaid. A portion of the judgment is now unsatisfied.</p> <p>If, upon the foregoing facts, this action can be maintained, the defendants are to be defaulted; if not, the plaintiff is to be non-suit.</p> <p>contended that, the plaintiff had mistaken his remedy, which should have been “ scire facias,” under R. S., c. 82, § 128, and not “ debt.”</p> <p>II. That each person and piece of property that has paid his or its proportion of the assessment at any time is discharged, and this, even if such property is now held by persons who have not so paid.</p> <p>III. That the requisites of the law of 1858 have been complied with, and that all such persons and property as paid on or before June 10 are discharged.</p> <p>IY. That, to protect the rights of such persons and property, this judgment should be limited so as to run only against those inhabitants and pieces of property as have not paid their respective proportions within the proper time or under such circumstances as the court shall determine to have been properly paid.</p> <p>This remedy of debt on the judgment is at common law. B. S., c. 82, § 128, is only cumulative and permissive by its own terms.</p>

On report. Assumpsit, on the following note; “$272.00. Atkinson, Maine, September 1, 1871. One year after date I promise to pay to the order of C. B. Mahan, agent, two hundred and seventy-two dollars, at Savings Bank at Dover, Maine, value received. Byley Lyford.” The following is indorsed on the note in Mahan’s handwriting : “ Waiving demand and notice.

On report. Writ of entry, returnable at the October term, 1877, for a parcel of land, “ Situate in Swanville, northerly of the road leading from the town-house to Nickerson’s Mill, being a portion of ■the homestead farm upon which the plaintiff’s sheep-house now stands, .and a parcel of land adjacent to and bounded northerly by said land, occupied by said sheep-house, and occupied by the defendants as a barn-yard.” Plea, general issue, with a brief statement, filed at the…

On report. Scire facias against the Bncksport & Bangor Railroad Company, as trustees of one John E. Gowen.

<p> Statute of frauds. Promissory notes. Surety. Extension of time. </p> <p>An oral agreement between the payee and principal maker of a promissory note, that the former will extend the time of payment so long as the latter will pay eight per cent interest, is not valid, and will not discharge the surety, though made without his knowledge and consent.</p>

<p> Promissory note. Lex loci. Married woman. </p> <p>A promissory note, written in tliis state, hut signed in Massachusetts by citizens there, and then returned by mail to the payee in Maine, is a note made in Maine and to be construed by the laws thereof.</p> <p>Thus, where one of the makers of such a note, thus written and signed, was a married woman, who signed it as surety for her husband, and by the laws of Massachusetts she could not thus bind herself there, the note is to ho construed by the laws of this state, which authorize her to contract for any lawful purpose.</p>

On exceptions. Indictment for manslaughter, charging the defendant with feloniously and wilfully killing Eliza A. Savage, on November 15, 1877. The deceased was the wife of the accused.

<p>On exceptions to the rulings of the superior court, and motion to set aside the verdict.</p> <p>Case, to recover damages for personal injuries received by reason of- an alleged defect in the sidewalk on Congress street, in Portland, on Sunday, January 7, 1877.</p> <p>The plaintiff testifies, in substance, that having staid in the house all day until half past one o’clock in the afternoon, he started out to take a walk for recreation — not to meet or visit anybody, or to go to any particular place ; that after walking along different streets named, he stepped into a store on the corner of Maple and York streets and took a glass of beer and a cigar; that he then started homeward, and when opposite Fluent block on Congress street, he fell on a ridge of ice on the sidewalk; that it was partly covered with snow and ice; that he turned his ankle, fell and broke his leg; that he was looking across the street when he fell, and did not see the ridge until he slipped.</p> <p>Among other instructions not objected to, the judge of the superior court instructed the jury as follows:</p> <p>“ Suppose a man was traveling on Sunday to visit the sick for purposes of charity, that would be for a legal purpose. Suppose, as he was driving along for that purpose, he should come to a tavern and should subsequently form the purpose of going in and purchasing liquor; suppose he did go in, purchase the liquor, drink it, return to the carriage, resume his journey to visit the sick and subsequently should be injured. I see nothing in that case to prevent him from recovering. That is, assuming that his use of the liquor did not contribute to produce the injury. I am putting this illustration merely with reference to the Sunday law.</p> <p>“ That would be a ease where a man started with a lawful purpose, proceeded up to a certain point, then formed an unlawful purpose which he executed, then returned to the point where he left his original lawful journey and went on with that. The only way in which the unlawful act or unlawful purpose affects his journey is in the matter of time, — the going in and coming out would affect it in the matter of time — but for the purposes of this case I should say the plaintiff would be entitled to recover so far as that consid eration was concerned.”</p> <p>“ If a man is walking for exercise in the open air, and while pursuing that walk goes into a shop for the purchase of liquor, comes out, resumes his original walk, not varying his walk except so far as it varies in point of time, I think that fact does not prevent his recovering.”</p> <p>contended that the decision of O’Connell v. Lewiston, 65 Maine, 34, should not be extended, and cited the following authorities : Dennett v. Pen. Fair Grounds, 57 Maine, 425. Towne v. Wiley, 23 Yt. 355. Lewis v. Littlefield, 15 Maine, 233. Hall v. Corcoran, 107 Mass. 251. Morton v. Gloster, 46 Maine, 520.</p>

On exceptions. Writ dated March 29, 1877. Assumpsit on money count, and account annexed to writ, as follows: “ M. P. Woodcock, to A. G. Gilmore Dr. To two hundred dollars put into his hands as a bet on election with Asa A. Howes, ■which said §200 I demanded of said Woodcock as my money, he then saying iliat he had the money and should pay it to Howes, said Howes having told me at one time that he would not pay the bet.” Plea, the general issue.

<p>' On Exceptions. Assumpsit on a written contract set out in the plaintiff’s amended declaration as follows:</p> <p>“ Also for that the said plaintiff was on the first day of August, A. D. 1872, and ever since has been a deputy sheriff of said County of Penobscot; that as deputy sheriff in and for said county, by virtue of seventeen certain writs dated,” &c., returnable, &c., and “ in which said writs the following named persons were plaintiffs; one in each writ respectively, and Daniel E. Ireland of,” &c., “ as also certain logs then in the Penobscot river in said county, marked NXVIIXI were defendants, viz&c. “ He attached (1945) nineteen hundred and forty-five spruce and hemlock 'logs then in the Penobscot river, marked as aforesaid, as in said writs he was commanded to do, and took possession of the same, .and thereafterwards, to wit: on the twenty-third day of August, 1872, at the request of the said defendants, he delivered to them, said Ayers, Babb, Pillsbnry and Darling’, the said logs so by him attached as aforesaid, and thereupon the said defendants executed under their hands and delivered to the plaintiff an agreement in words and figures as follows, to wit:</p> <p>“ Penobscot, ss. August 23, 1872. Received of G. S. Bean, deputy sheriff, the following described logs, which were attached by said Bean, by virtue of seventeen certain writs against Daniel E. Ireland, and logs therein described, wherein said officer is especially commanded to attach certain logs in the Penobscot river marked NXVIIXI, to wit: nineteen hundred and forty-five spruce and hemlock logs marked as aforesaid and of the value of nineteen hundred and forty-five dollars, whereon the plaintiffs in said writs claim each a lien for personal labor and services in cutting and hauling the same, which lien said writs were sued out to enforce.”</p> <p>The writs above referred to are all dated August 14th, 1872, returnable to the supreme judicial court next to be holden at Bangor, in and for the county of Penobscot, on the first Tuesday of October, A. D. 1872, and the names of the several plaintiffs therein, and the sums which said officer is in said writs severally commanded to attach by virtue thereof, are as follows, to wit:</p> <p>“ Writ in favor of John Sheridan, two hundred dollars ; E. B. Melvin, fifty dollars ; Henry Melvin, eighty dollars; Silas Estes, one hundred and fifty dollars; Charles Miller, one hundred dollars ; Mark Lombard, ninety dollars ; Nathan McGray, one hundred and fifty dollars ; George Pease, one hundred dollars; Sheldon C. Ireland, one hundred dollars ; Ira Barker, one hundred and fifty dollars ; A. McPheters, one hundred dollars ; H. Peavy, one hundred and fifty dollars ; Henry Murphy, one hundred dollars; A. Williams, one hundred dollars; Wm. Pullen, one hundred dollars; Wm. Bond, one hundred dollars; James S. Dear-born, one hundred and twenty-five dollars.'</p> <p>“ And we hereby (in consideration of one dollar paid to us by said officer) jointly and severally promise and agree to keep said property safely and return the same to him or to his order or successor in office, or to any person by law authorized to receive the same, on demand, in like good order as at present, free from expense to the officer or creditors, and we further jointly and severally agree that a demand on any one of us for said property shall be binding on the whole, and also agree that in case of any failure on our part to deliver said property when demanded, in good condition, that we will indemnify and save said officer harmless from all damage, loss, trouble and expense that may in any way accrue to him on account of such failure to deliver, reserving the right to show that the plaintiffs above named have no lien on said logs, and that the same are not liable to attachment.</p> <p>“ [5 ct. U. S. Int. Rev. Stamp. A. S. Ayers.] A. S. Ayers, Andrew M. Babb, F. A. H. Pillsbury, J. O’B. Darling.”</p> <p>“ Whereby said defendants then and there became liable to return said logs to said plaintiff on demand, or on failure so to do, to indemnify and save said plaintiff harmless from all damage, loss, trouble and expense that might accrue to him on account of such failure to deliver’, and then and there promised so to do. And the said plaintiff avers,” &c.</p> <p>At the April term, S. J. court, 1878, said amended declaration was filed and allowed, and thereupon the defendants demurred, and assigned the following causes :</p> <p>I. The promise of said defendants set forth in said amended declaration as being merely “ to return said logs to said plaintiff on demand, or on failure so to do, to indemnify ” him as set forth, based upon, by direct reference to said defendants’ alleged agreement therein previously recited and set forth in words, figures and signatures, as made by them, is inconsistent and repugnant with the terms of said agreement as therein previously recited, in this that the promise is not as alleged, but is, with other alternative terms, “ to return the same (said logs) to him (plaintiff) or his order or successor in office, or to any person authorized by law to receive the same,” on demand, and in case of failure to deliver said property, to indemnify and save him harmless.</p> <p>II. The averment that said defendants then and ever since have neglected and refused to restore said logs “to the plaintiff or to any person authorized by law to receive the same,” is insufficient to cover, negative and preclude the performance, and there is no averment of any breach of the other alternative terms of the agreement as recited therein, to wit: to return said logs to “ his (plaintiff’s) order, or successor in office,” and is insufficient, inconsistent and repugnant, as an averment of a breach of said agreement, with the alternative terms pointed out as set forth in said defendants’ agreement previously recited in words and figures in said declaration; which demurrer was duly joined by the plain■tiff.</p> <p>The presiding judge overruled the demurrer and adjudged the declaration as amended, good; and the defendants alleged exceptions.</p> <p>I. The first objection to the plaintiff’s declaration specified in the demurrer, is the inconsistency and repugnance, upon the face of the declaration, as to the defendants’ promise.</p> <p>The averment as to the promise is, “ to return said logs to said plaintiff on demand, or on failure so to do, to indemnify and save said plaintiff harmless,” omitting wholly to declare or allege the alternative terms in the promise as set out in the agreement on the previous page, which are a material part of the promise, and which qualify and enlarge essentially the scope and substance of the promise, to wit: “ or his order or successor in office, or any person by law authorized to receive the same.”</p> <p>The averment as to the promise, by direct reference to the agreement just previously recited, attempts to allege the defendants’ promise in the agreement; but misstates it essentially, in the respects pointed out, in scope and substance. The effect of this is, plainly and obviously, an inconsistency and repugnance on the face of the declaration. 1 Chit, on Plead. (Am. ed.) 316.16 Gould’s Plead, c. Ill, § 182, 1 Saund. on Plead. & Ev. 121. Tate v. Waitings, 3 Term. K,. 531. Penny v. Porter, 2 East. 2. Howell v. Richards, 11 East. 633. White v. Wilson, 2 Bos. & Pul. 116. Connolly v. Cottle, Breese. 286. Mulford v. Bowlen, 4 Halst, 315. Miles v. Sherward, 8 East. Willoughby v. Raymond, 4 Conn. 130. Trask v. Duval, 4 Wash. C. C. 97. Stone v. Knowlton, 3 Wend. 374. Russell v. So. Britain, 9 Conn. 508.</p> <p>II. As to effect of repugnance and inconsistency. Stevens on Plead. 377. 1 Chit, on Plead. 255. Gould’s Plead, c. Ill § 173-176. Sibley v. Brown, 4 Pick. 137.</p> <p>III. The declaration does not sufficiently aver, or set forth any breach of the defendants’ agreement. There is no averment that the logs have not been restored to the plaintiff’s “ successor in office.” 1 Chit, on Plead. (Am. ed.) 342. Murdock v. CaUwell, 10 Allen, 299.</p>

On report. Assumpsit. Writ dated July 20, 1875. Declaration and cause of action are sufficiently recited in the opinion. Plea, general issue. The deed of the patent, referred to in plaintiff’s declaration and in the opinion, which otherwise sufficiently states all the facts, is as follows: “ United States of America.

On exceptions. Complaint and warrant on a search and seizure process, on appeal from the municipal court of Augusta. The respondent admitted that he had sold cider to be carried away from his premises, and through his counsel claimed that the words “tippling purposes ” meant “ drinking upon the premises; ” and that c. 215, Pub. Laws 1877, permitted the sale of cider, if not to be drank on the premises of the seller.

<p>On exceptions, and motion to set aside the verdict, and for new trial.</p> <p>Trespass, quare clausutri, i'or removing a small piece of fence belonging to plaintiff.</p> <p>Plea, general issue, with brief statement of soil and freehold, and that the fence was wrongfully erected by the plaintiff upon the land of defendants’ intestate, and lawfully removed. The real question was the true line between adjoining lots of the parties. The facts are sufficiently stated in the opinion. The defendant requested the following instruction, among others:</p> <p>“ Even if George W. McKenney did testify, on direct examination, that the stake was driven in the ground when the wall was removed, but, on cross examination, testified that he did not see it put there, and did not see it afterwards, and had never seen it, his whole testimony about the stake must be disregarded.”</p> <p>This instruction was not given except as appears in the opinion, which recites other exceptions alleged by defendants.</p> <p>in a very elaborate argument, among other things, contended that the wall, which the plaintiff set up as the true line, had no significance, and furnished no legal evidence touching the case. It had been put upon the ground when the land upon both sides of it was owned by one party, and for no purpose disclosed by the evidence in the case; that, when the first deed was given, creating the dividing line in dispute, one monument, now agreed by both parties to be correct, was named in the deed, and then the line, by compass and actual survey, was projected across the tract therein divided, and no wall nor any other monument was mentioned, and the deed called for this line, which could be ascertained with mathematical certainty; that there is no dispute about this line being the true line, if it could be found. Why was not the wall named in the deed, if intended to be the boundary ? There is not only no evidence that the compass line, named in the deed, was to conform to the wall, nor is there any evidence that the defendant, or any of his grantors, ever recognized the wall or the stake as a monument. There was not one word of legal evidence how the stake came there. McKenney is the only witness and his testimony utterly fails.</p> <p>The evidence relating to the stone wall was competent only as bearing upon the propositions of the plaintiff that she and her grantors had acquired a title by adverse claim up to the wall, and if the evidence failed to show this, then the wall was out of the case and the jury should not have been allowed to consider it. Worthing v. Worthing, 64 Maine, 335.</p> <p>The only question was, where is the line called for in the deed? There was no claim of latent ambiguity, and nothing requiring extrinsic evidence, to locate the land described, and the plain lan- * guage of the deed must control. Allen v. Kingsbury, 16 Pick. 235. JenJcs v. Morgan, 6 Gray, 448. Bond v. Fay, 12 Allen, 86. 2 Wash. Real Prop. 674 [631.]</p> <p>There was no evidence that the owners of the adjoining lots had concurred in considering the wall the dividing line, or had ever acted upon such understanding; but if they had, their conduct, or admissions, could not vary the calls in the deed, or enlarge or diminish the grant, and where there are no monuments referred to in the deed, the courses are to govern. Robinson v. Miller, 37 Maine, 312. Linscott v. Fern aid, 5 Maine, 496. Wiswell v. Marston, 54 Maine, 270. Henshaw v. Mullins, 121 Mass. 143.</p> <p>The plaintiff’s land is bounded upon that of the defendants, and the deed giving the dividing line is to govern. Defendants’ parcel is a monument, which determines the boundary and limit of plaintiff’s land, and true line of ownership. 2 Wash. Real Prop. 675 [632]. Sparhawk v. Bagg, 16 Gray, 583. White v. Jones, 67 Maine, 20. Oleaveland v. Flagg, 4 Cush. 76.</p> <p>The evidence as to the stake was admitted, under objection, not to show where the wall originally stood, but as evidence of the line between the lots. This was wrong. “ It (stake) was driven down at the end where the line was, I suppose,” says witness.</p> <p>The request in regard to McKenney’s testimony should have been granted. The only way of doing justice to a party against whom fraudulent evidence has been given, under pretense that the witness has knowledge, when he has none, is to strike out his evidence when it discloses the fact that he has no knowledge, and that his testimony was hearsay merely. The jury were left to base their verdict on hearsay evidence, and this in regard to a stake which neither the defendant nor any of his grantors ever recognized as a monument, or ever heard of before the trial.</p> <p>The other instructions complained of were erroneous. There was no evidence in the whole case to warrant the judge in instnicting the jury to give such force to the location of the wall. No evidence that the wall or stake was either of them ever recognized as monuments, or intended to mark the boundary lino, by either word or acts of defendants, or any of his grantors, nor is either of them anywhere mentioned in any deed of either defendants’ or plaintiff’s lot, down even to the latest grant.</p> <p>The jury were substantially required to find the location of the wall and stake, and instructed that it was competent for them to find that there was the true boundary between the plaintiff’s and defendants’ lot, notwithstanding these pretended monuments were inconsistent with the deed, and act of parties and all their grantors.</p> <p>The damages given by the jury were excessive. The jury either acted upon wrong premises, or were governed by gross partiaiity, passion or predjudice.</p>

Dunn, and which appeal came before tlie law court on exceptions to the decree of tlie presiding justice at nisi prius. The allowance made to the appellant by the judge of probate was the sum of §800, outside of §404 which she received from tlie Masonic Relief Association on account of the death of her husband.

Petition eor review, brought by the petitioner, William B. Taylor of said Bath, administrator de bonis non of the estate of Jonathan H. Crooker, late of said Bath, deceased, setting out that George… Held: as matter of law, that the court had authority to grant a review between the said parties for the causes named in said petition, and so granted a review as prayed for. To the overruling of which motion, and to the ruling in matter of law, the defendant excepted.

On exceptions. Assumpsit, — one count upon the following account annexed : David B. Fuller, Jr., administrator of the estate of David B. Fuller, late, etc., to Daniel W. Baker and Fred Thornton, Dr. To carrying the U. S. mail from Palermo post office in China to Belfast, and back to China, for the quarter ending March 31, 1874, $200 To same for quarter ending June 30, 1877, 200 $400 And a second count as follows : “ And, also, for that, whereas, the said David B. Fuller, in…

On report. Writ dated September 13, 1876. Action of trover, to recover the value of certain logs alleged to have been cut on lot of land, Block 20, Letter E, Aroostook county. Plea, the general issue. -The verdict was for the sum of $137.30.

On motion, to set aside the verdict, and for new trial. Assumpsit upon account annexed. The action was commenced by Benjamin Hill in his lifetime. Since his decease administration upon his estate has been commenced, and Rufus Prince, the administrator, comes in and prosecutes this suit.

On exceptions. Action oe trespass to land, and assault and battery. Writ dated October 1, A. D. 1877. The writ contains three counts, one for breaking and entering the plaintiff’s close and assaulting her, another for breaking the plaintiff’s dwelling-house and assaulting her ; the two first counts for putting her household stuff from said house.

On exceptions. This was an indictment charging the defendant in the first count with an assault upon one John Flood, with a dangerous weapon, with intent to kill and murder; in the second count, an assault with intent to kill, and in the third count an aggravated, assault.

<p>On exceptions and motion.</p> <p>Action on the case for negligence.</p> <p>Plea, general issue. Yerdict for plaintiff for |4,000.</p> <p>The facts, and so much of the bill of exceptions as are necessary to the understanding of the points decided, appear in the opinion.</p>

On exceptions to the ruling of Symonds, J., of the superior court for this county. The defendant was charged with assault and battery by an indictment of the following tenor, omitting the simply formal parts : “ The jurors for said state, upon their oath, present that John II.

On exceptions and motion. Action on the case for malicious prosecution. Many of the facts in the case are detailed in Hunter v. Han* dall, 62 Maine, 423.

<p> Bill in equity. Joinder of parties. </p> <p>All the owners of the equity of redemption must be made parties to the bill in equity to redeem the mortgage, otherwise the bill will be dismissed.</p>

<p>... On exceptions, and motion.</p> <p>Action on the case to recover for personal injuries, alleged to have been received December 13, 1875, on account of a defect in a highway which the defendant town was bound to keep in repair. Ad damnum, $5,000. Date of writ January 21, 1876.</p> <p>Plea, general issue and brief statement that the way described in plaintiff’s writ was never legally established, and defendants were not bound to repair or maintain the same.</p> <p>The verdict was for the plaintiff, the damages being assessed in the sum of $840.00. Thereupon the defendants moved to set aside the verdict and that a new trial be granted, because against law, evidence, and the weight of evidence, and likewise alleged exceptions to certain rulings of the presiding justice which are recited in the opinion. The notice to defendant town, put into thp case, was in writing and as follows :</p> <p>“ Fairfield, December 28, 1875. To the selectmen of the town of Benton, Maine:</p> <p>“ Gentlemen: A demand against the town of Benton has been left at this office for collection. Your immediate attention to the matter will save cost. The demand is for damages sustained by Benjamin M. Bradbury of Fairfield, Maine, in consequence of injuries received from defect in that portion of the covered bridge across the Kennebec river, which is situated in said town of Benton, and which said town is by law bound to keep in repair, on the evening of the 13th of December, A. D. 1875. The nature of the injury, according to the statement of Dr. E. G. Fogg the attending physician, is inflammation of the periosteum (periostitis), of the tibia, at about the junction of the middle and the lower thirds of the right leg. Yours very truly, F. E. McFadden, att’y for Bradbury.”</p> <p>In the writ and declaration the plaintiff’s injuries are described as “ a dangerous contusion of the muscles of said leg, and the bones of said leg were then and there, by reason of said defect or hole in said bridge and highway, badly injured and displaced; his back strained and a general shock to his nervous system was then and there received by reason of the defect aforesaid, and many other grievous injuries were then and there sustained by said plaintiff by reason of the defect aforesaid, by reason whereof he has hitherto been confined to his room, his health has been greatly impaired, his life endangered, and he has suffered great pain and has been put to great expense for medical aid and nursing.”</p> <p>Other necessary facts appear in the opinion.</p> <p>1. The notice was insufficient, because:</p> <p>(1) . It was not expressed in the English language.</p> <p>(2) . It was revoked.</p> <p>(8). It did not specify the injuries which are alleged in the declaration.</p> <p>II. The location of the way was not sufficient to charge the defendants, because:</p> <p>(1) . The commissioners had no jurisdiction of the way, it not being asked for in the petition, and it may be impeached collaterally. Small v. Pennell, 31 Maine, 267.</p> <p>(2) The accident occurred before the liability of the town had become fixed, it being inside of one year after location. R. S., c. 18, § 14.</p> <p>(3.) The court erroneously instructed the jury in regard to prospective damages, because the declaration did not allege them. 1 Chit. Plead., §§ 339, 399. Patten v. Libbey, 32 Maine, 378. 2 Gfreenl. Ev., § 254, et seq. Hunter v. Stewart, 47 Maine, 419.</p>

On report. Action of dower. Writ dated May 22, 1876. It appeared in evidence that on November 11, 1841, the President, Directors & Go., of the Exchange bank held a judgment and execution against Wm. Boyd, the then husband of demandant, and on that day levied said execution upon a large tract (about four acres) of land in Portland, of which the premises described in the writ constitute a part.

On motion. Case for injuries alleged to have been received by the plaintiff on the 6th day of June, 1877. “And the plaintiff' avers that, on the sixth day of June, aforesaid, there was a certain public highway leading from south-west bend ferry, so called, to Lisbon factory village, in said county of Androscoggin, which said public highway was crossed by said railroad, occupied and controlled by said defendant corporation, at a place near the southeasterly end of the Lisbon…

On exceptions from the superior court. Assumpsit on a promissory note. The questions raised, and the material facts relating thereto, are sufficiently stated in the opinion.

<p> Indictment. False pretense. Allegation. </p> <p>An indictment cannot be sustained, the substance of the allegations being that the respondent got money in placing a mortgage upon land by falsely representing that the land was well wooded and well tim bered, and had upon it a valuable growth of hard and soft wood and hemlock bark, and contained about one hundred acres ; when in fact the land was not well wooded and well timbered, and did not have upon it a valuable growth of wood, bark or timber, and did not contain one hundred acres. •</p> <p>Had the indictment alleged that there was at the time of the representations no wooded growth upon the land, the representations might have been criminal. But the fact should be laid directly, and positively, and not inferentially, or by way of recital merely.</p> <p>The want of a direct and positive allegation, in the description of the substance, nature, or manner of the offense, cannot be supplied by any intendment, argument, or implication whatever.</p>

On exceptions. Indictment under H. S., c. 112, § 2, wherein the defendant is ■ charged at a certain time and place, as follows : “ Meaning and intending to bring a suit or proceedings against one Aaron B. Fox, before a court of competent jurisdiction, for the killing of certain sheep and lambs belonging to him, the said Francis Joaquin, which he, the said Francis Joaquin, claimed were killed by said Aaron B. Fox, and by a dog belonging to him, the said Aaron B. Fox, did then…

On exceptions. Debt on a common law submission bond. Plea, general issue, with brief statements. The plaintiff offered a paper, purporting to be an award of the arbitrator, which was objected to by the defendant but admitted by the presiding justice ; and the defendant alleged exceptions. The case is stated in the opinion.

On report. Action to recover for supplies and medical attendance and nursing furnished one James Stone, who, plaintiffs allege, was a pauper having his legal settlement in the town of Gushing. The facts and questions at issue are fully recited in the opinion.

<p>On exceptions and motion.</p> <p>Action upon a lien claim, under R. S., c. 91, § 7, for iron furnished by plaintiffs to one Nickerson & Rideout, in building a ship.for W. H. Smith and others.</p> <p>The writ bears date December 16, 1876, and (leaving out the immaterial parts) reads as follows: “We command you to attach ship or vessel now on the stocks at Calais, building by one Nickerson & Rideout of Orringtoh for the owners, and summon all persons interested, in the manner directed by law, to appear before our justices, etc., then and there to answer, etc., to Robert O. Fuller of-, Eustace C. Fitz of ——, and Charles S. Dana, etc., copartners under name of Fuller, Dana & Fitz, who claim a lien on said ship or vessel for materials furnished and used in the construction of said ship or vessel, to the amount of twenty-eight hundred and thirteen dollars and eighty-six cents, according to the specification hereto annexed, together with thirty-seven dollars and thirty-seven cents for interest on same, which amount Isaac H. Nickerson and Henry A. Rideout, copartners in business under the firm of Nickerson & Rideout, of Calais aforesaid, who owe the same, neglect and refuse to pay, to the damage of said Fuller, Dana & Fitz, as they say,” etc.</p> <p>Specification of demand of plaintiffs :</p> <p>“Sundry articles of iron and metals delivered by plaintiffs to Nickerson & Rideout from time to time from the 27 th day of January, A. D. 1876, to October 28,1876, inclusive, amounting to five thousand two hundred and seventy dollars and eighty-six cents, and there was paid on account of same July 27, 1876, $782; September 15, 1876, $575; September 20, 1876, $600; November 9, 1876, $500; in all, $2,157; leaving balance justly due of $2,813.86, on which is claimed interest to the amount of $37.37. Nickerson & Rideout are the persons personally liable to the plaintiffs. The owners of the ship or vessel, so far as known, are H. F. Smith & Co. of New York, W. H. Smith of Bangor, and Llewellyn Morse of Bangor, Captain J. F. Bartlett of Grrington, Maine, and Jaboz Snow of Bucksport, Maine. And I, the subscriber, in behalf of the said plaintiffs, lien claimants, upon oath, say that I believe that the said plaintiffs, Fuller, Dana & Fitz, by the laws of the State of Maine have a lien on the said ship or vessel, for the whole or a part of said claim. Joseph Granger. Washington, ss. December 19, 1876. Sworn to before me, George A. Curran, justice of the peace.”</p> <p>Gfficer’s return :</p> <p>“ Washington, ss. December 19, 1876. By virtue of the within writ, I have this day attached the ship or vessel, now on the stocks in the ship-yard formerly used by J. & C. Short, near the lower steamboat wharf in Calais, Washington county, Maine, superintended by J. F. Bartlett of Orrington, for the owners; and on the same day I posted, in a conspicuous place on said ship or vessel, a notice signed by me, directed to the owners thereof, stating that I had attached the said ship or vessel, the amount of the lien claimed, by whom it was claimed, the parties from whom said amount was due, and the court to which the writ was made returnable. And on the same day I gave to the master workman on said ship or vessel, and to the city clerk of said Calais, a copy of so much of my return as relates to the said attachment of said ship or vessel, with the name of the plaintiffs, the names of the persons liable for the debt, the description of the vessel as given in the writ, the date of the writ, the amount claimed, and the court to which the writ is returnable, and on the same day I left a copy of said certificate with J. F. Bartlett, one of the owners named in said writ, and on the same day I summoned the within named defendants, Nickerson & Hideout, part owners of the said ship, to appear and answer at court, by giving each of them a summons in hand as within directed. John S. Smith, deputy sheriff.”</p> <p>Pleadings: “ And now come William H. Smith, Charles V. Lord, Annie H. Smith, Morse & Co., Frank H. Holyoke, A. Leighton, Jabez Snow and Fred H. Smith, owners of said ship when, &c., where, &c., and defend said action so far as relates to the validity and amount of the lien claim alleged in the plaintiffs’ writ, declaration and specification, and for defense and brief statement say :</p> <p>I. “ That the specification, annexed to the writ does not contain a just, true and particular account of the demand claimed to be due the plaintiffs, with all just credits.”</p> <p>II. “ The specification does not contain the names of the persons personally liable to the plaintiffs.”</p> <p>III. “ The specification does not contain the names of the owners of said ship or vessel; nor does it state that the names of the same are unknown to plaintiffs or their agent and attorney.</p> <p>IY. “ That the said specification is not verified by the oath of the plaintiffs, or by any person in their behalf; that the amount claimed in said specification is justly due from the person named in his said writ and specification as owing it.”</p> <p>Y. “ That no valid attachment was made of said ship under or by virtue of said writ.”</p> <p>Y I. “ That the plaintiffs never furnished any materials or labor for the building of said ship; and no materials furnished the defendants by plaintiffs entered into the construction of said ship.”</p> <p>VII. “ That the defendants, from January 27, 1876, to January 1, 1877, built and completed three ships or vessels, and did a large amount of labor, and furnished a large amount of materials, to wit: iron, timber, &c., for old ships and vessels, as and for repairs, and were merchants and traders as well as ship-builders and carpenters; and that all the goods charged by the plaintiffs to said defendants during the time aforesaid, were charged to them personally, and upon their own personal responsibility, upon an open, mutual and running account, to be by them used in the construction of vessels or otherwise, and not in particular for said ship, and no lien on said ship was intended by the plaintiffs at the time of the sale and delivery of said materials and none ever existed.</p> <p>VIII. “ That nothing is duo from said defendants to said plaintiffs.</p> <p>“ And pray that the questions specified in section 16, chapter 91, it. S., may be put to the jury impaneled to try the cause aforesaid. By Barker, Vose & Barker, their attorneys.</p> <p>“ And the said plaintiffs, reserving all right of exception to the sufficiency and legality of each and every one of the aforesaid specifications of the said William H. Smith et als., claiming to be owners of the said ship, say that, so far as the plaintiffs are in law bound to answer and reply to the same, the writ and all requirements of the law, in such case made and provided, are sufficient, and deny each and every one of the allegations of said defendants, so far as the same are required to be answered unto, and request that the jury ascertain and find what amount is due from the defendants to the plaintiffs, and for how much amount the plaintiffs have a lien on the said vessel, viz: the ship Annie H. Smith. By their attorneys, J. & G. F. Granger.”</p> <p>After the plaintiffs had opened their case to the jury, read their writ, specification, etc., and the pleadings, William H. Smith et als.v owners of said ship, by Barker, Vose & Barker, their attorneys, moved the court to rule that the plaintiffs could not maintain their action for the enforcement of a lien on said ship, for the fol-owing reasons, viz:</p> <p>I. “That the specification annexed to the writ did not contain a just, true and particular account of the demand claimed to be due the plaintiffs, with all just credits.</p> <p>II. “ That the specification aforesaid did not contain the names of the owners of said ship, and did not contain a statement that the names of such owners were unknown to said plaintiffs.</p> <p>III. “ That said specification was not verified by the oath of one plaintiff, or of some person in his behalf, that the amount claimed in said specification was justly due from the person named in the writ and specification as owing it.</p> <p>■ IV. “ That the return of the officer upon said writ was insufficient and did not show that a valid attachment of said ship had been made upon said writ, and that no attachment had been made.”</p> <p>The court denied the motion and .request of said owners of said ship, but did rule, for the purposes of the trial, that the writ, specification, verification and officer’s return were sufficient in form and in law to enable the plaintiffs to maintain their said action and enforce a lien on said ship, if they are in all other respects entitled to their lien.</p> <p>The court allowed plaintiffs to amend by filing particulars of plaintiffs’ account of iron, and it was so done before the trial proceeded. The attorney for the ship-owners, being called upon to specify his objections to the officer’s return, declined to state his objections.</p> <p>The defendants, Isaac H. Nickerson and Henry A. Hideout, did not appear to defend, it appearing upon the docket that they were in bankruptcy.</p> <p>The owners of the ship appeared to defend against the alleged lien, and the court was requested by the counsel for the said owners to instruct the jury “ that the specification annexed to the writ did not contain a just, true and particular account of the demand claimed to be due the plaintiffs, with all just credits, and was not verified by the oath of one plaintiff, or of some person in his behalf; that the amount claimed in said specification is justly due from the persons named in the writ and specification as owing it; and for these reasons the plaintiffs cannot maintain their action for the enforcement of any lien upon the ship described in their writ; ” which instruction the court refused to give, but instructed the jury, for the purposes of this trial, that the specification annexed to said writ, and the verification in said specification, were sufficient in law for the plaintiffs to maintain said lien if they were, in all other respects, entitled to a lien.”</p> <p>Also for the following instructions: “ II plaintiffs sold and delivered iron to Nickerson & Rideout on a general account, and no particular iron was sold for the special purpose, and at the sale set apart to go into the ship Annie H. Smith, it would become the property of Nickerson & Rideout; and if after that, Nickerson & Rideout used any part of the iron in the construction of the ship, they, and not the plaintiffs, must he regarded the party who furnished that iron for building the ship; and in that case the plaintiffs would have no lien on the ship; and, if it was so sold and delivered, it would make no difference whether the whole or a part of any particular item of the account went into the ship.</p> <p>“ If Nickerson & Rideout bought and received of the plaintiffs, iron of different qualities and dimensions, on a general account, and used part for the ship attached and part for other purposes of their own choice, or as they had occasion, and there was no agreement between the parties which was violated by such use, it was the property of Nickerson & Rideout, and they were the party who furnished it for the ship, and plaintiffs would have no lien.”</p> <p>Which instructions the presiding justice declined to give, but did instruct the jury as follows: “ That, in order to have a lien, the party must have furnished the iron for the vessel, and it must have gone into the vessel; it must have been furnished, and been used in the construction of that vessel in good faith; because here are parties outside who had nothing whatever to do with that part of the contract, who have purchased the vessel, and they are only liable if there is a legal lien. There is some testimony at least tending to show that these defendants, Nickerson & Rideout, were building at that time, or part of the time, three vessels, and it is claimed that this iron was bought upon general account and went into the three vessels. Whether any of it went into this vessel or not, I believe it is not conceded on the part of those representing the vessel that it did ; but it is claimed that it was bought on a general account, and if used for those three vessels, that it went irrespectively into the vessels. I will say to you, for the purposes of this trial, that, if it was furnished in good faith for the three vessels, and if different parts of it went into the three vessels, the plaintiffs would have a lien for that part that went into this vessel now in question, so far as it went in there in good faith.”</p> <p>The action was tried by the jury, who returned a verdict for the plaintiffs; and, in answer to the question : “ For how much of such amount have the plaintiffs a lien on the vessel attached ? ” answered, $2,995.31.</p> <p>Plaintiffs alleged exceptions, and likewise filed a motion to have the verdict set aside as against law, the evidence and the weight of evidence.</p> <p>That the ship-owners and defendants, by their counsel, appeared generally at the first term, when everything in both declaration and specification of claim was apparent upon the record, and made no objection, nor hinted at any, up to the time of trial. This should be considered a waiver. It is a rule of the civil law, and consonant with reason, that anyone may renounce or waive that, even, which has been established in his favor. 2 Bouv. L. Diet. 483. Rowley v. Stoddard, 7 Johns. 207. Jones v. Rawing, 2 Johns. Cases, 74. Smith v. Eddie, 3 Johns. 107. Johnson v. Richards, 11 Maine, 49. Wilson v. Nichols, 29 Maine, 566.</p> <p>It is a very familiar law that a general appearance is a waiver of any and all defects in the form of the writ or process, and in its service. Story’s Plead. Oliver Ed., c. 8, p. 28. 4 Mass. 438. 1 B. & Pul. 250. 1 Moore, 299. 3 Cranch, 496. 4 Cranch, 180-421. Simonds v. Parker, 1 Met. 508-511. Fox v. Hazel-ton, 10 Pick. 275. Olark v. Montague, 1 Gray, 446. Carlisle v. Weston, 21 Pick. 535. Smith v. Robinson, 13 Met. 165. .Ripley v. Warren, 2 Pick. 592. Joyner v. School, 3 Cush. 567. Brewer v. Sibley, 13 Met. 175. Shaw v. Usher, 41 Maine, 102.</p> <p>And as to amendment. McCabe v. McRae, 58 Maine, 96. R. S.s c. 82, § 9. Beil v. Austin, 13 Pick. 90. State v. Folsom, 26 Maine, 212. Lawrence v. Chase, 54 Maine, 196. Dyer v. Brackett, 61 Maine, 587. Page v. Hubbard, 1 Sprague, 335. Jones v. Keen, 115 Mass. 170.</p> <p>As to instructions. Those requested are so mixed with improper requests that, the court not being bound to give the whole, was justified in refusing the whole. The requested instructions were objectionable as calling upon the court to take facts from the jury. Hubbard v. Brown, 8 Allen, 590. Story v. Buffum, 8 Allen, 35, 37. Young v. Orpheus, 119 Mass. 184.</p>

Action oe replevin for a quantity of marbleized slate mantles. At the trial of the cause, and after the introduction of the plaintiffs’ evidence, the presiding justice, on motion of the defendant, ordered a nonsuit and return of the property, on the ground that the plaintiffs had not proved any title to the property replevied. Plea, general issue, and brief statement of justification. The case is fully stated in the opinion.

On Beport. The first case is an action of dower ; the second an appeal from an allowance made by the judge of probate to the appellee, as the widow of Asa Wentworth. The two cases were tried together. During the progress of the trials, Arthur F. Wentworth offered in evidence paper “ A,” and contended that it would bar the claims’for dower and allowance.

On Exceptions by both parties. Action on the case for injuries to the plaintiffs’ aqueduct. Writ dated September 23, 1875.

<p>On exceptions.</p> <p>Action oe assumpsit by Allen R. McDonald against John D. Gillett and Frank Allday, principal defendants, and Charles D. Latham, their alleged trustee. Writ is dated January 24, 1878, and was served January 29, 1878, upon the supposed trustee, and subsequently in February upon the defendants, and was returnable before the justice of the superior court for Cumberland county. Allday filed allegations claiming the funds in the hands of the alleged trustee by virtue of an assignment from Gillett to him after service of the writ upon the trustee. The steer, and the funds arising therefrom, were the property of Gillett until the same were assigned to Allday, as aforesaid.</p> <p>The deposition of Isaac A. Sweetsir was put in as follows:</p> <p>“ I, Isaac A. Sweetsir, on oath depose and say that I dressed and sold the steer which was shot, and is spoken of in this suit. I received the carcass from C. D. Latham, December 24, 1877. I did not know who owned it. I delivered Latham a round of beef out of this steer in December, 1877, worth about eight dollars. I commenced to sell the steer December 26, 1877, and credited the beef to Latham as I sold it. I sold it all on the 26th and 27th of December, 1877. The steer was sold for $110.95. I charged $10 for my services, delivered the round of beef to Latham worth $8 as aforesaid, and February 16, 1878, settled with Latham for the steer; on that day paid him check annexed $63, money $7, and my bill against him was about $30. My bill against Latham was for beef sold him between December 26, 1877, and that time. My bill included that round of beef. Mr. Latham came to me and wanted me to pay him the money for Allday to make his defense with. Mr. Latham wanted me to dress the steer and do the best I could with it, and take out my pay for dressing and selling, and to account to them for the proceeds. Isaac A. Sweetsir. ”</p> <p>The following disclosure was made by the trustee :</p> <p>“ I know Frank Allday of London, England, one of the principal defendants in this cause; first got acquainted with him some time in December, 1877. He came to see me about yarding some cattle. One steer of the steers was killed. Had conversation with" Allday about the dead steer. Allday says to me, ‘you take this steer, have him killed, and dispose of him the best that you can.’ I hired a man to haul the steer down to Mr. Sweet-sir’s shop. Sweetsir was a butcher. I told him to take the steer, sell him, and pay me the proceeds. Sweetsir paid me between eighty and ninety dollars; paid for carting, out of that sum. After the expenses were paid, there was about $50 due Allday. Paid Sweetsir about $11 and $3.50 for carting, all of which came out of the gross amount received by me, to wit: $80 or $90.</p> <p>“ Don’t recollect that Allday stated that he was acting for himself or not. Allday said after the steer was killed, that Crogan had nothing to do with the cattle at all, Crogan was simply a hired man. Before Allday sailed for England, don’t recollect that he told me who the cattle belonged to, but since his return he has told me they belonged to Gillet. Have no claim against Gillet or Allday, except for services in this matter of killing that steer. I got none of the money from Sweetsir until after the service of the writ upon me. Has paid it at different times since, some in money and some in beef.</p> <p>“ Mr. Sweetsir can give day and date of the proceeds of the steer paid for me. Charles D. Latham.”</p> <p>Thereupon the justice of the said superior court ruled as follows :</p> <p>“ I am of the opinion (not intending, however, any finding of fact in that respect), that Sweetsir should bo regarded as the servant of Latham, the alleged trustee, and that the receipt of the proceeds of the steer by Sweetsir prior to the service of the trustee writ, and crediting the same by Sweetsir to Latham on account prior to that date, renders Latham chargeable as trustee in the action ; and I rule that the alleged trustee is to be charged in the sum of $97.45.”</p> <p>The defendant, Allday, alleged exceptions.</p>

On exceptions and motion. Action on the case for an alleged arrest and prosecution of the plaintiff by the defendant, before the municipal court of Lewiston upon a complaint and warrant for an alleged larceny. Plea, general issue. The case is fully stated in the opinion. Verdict for the plaintiff for $937.50. I. (Exceptions.) Should these exceptions be sustained, the effect will be that a new trial miist be granted.

On report. Action to recover damage to female plaintiff for injuries from a defective way. The plaintiffs, at the time of the injury and time of trial, were resident in Cardenas, Cuba, and had been residing there for several years. No residence in this state. Defendants claim that the action could not be maintained under c. 34, of laws of 1872, unless a similar remedy existed by the laws of Cuba.

On report. Debt on guardian bond. Plea, non est factum, with a brief Statement of a settlement, etc. It appeared that the female ward was married August 30, 1874, and that on December 25, 1874, she being sixteen years of age, made a settlement with her guardian, and gave him a receipt as follows, to wit: “Poland, December 25th, 1874. “ Received of Zechariah G. Rowe, my guardian, the whole amount of my property, that is to say, the sum of $1,559.19 by ' note, and fifty…

<p>Bill in equity, for authority to sell and reinvest certain stocks specified in the last will and testament of the plaintiff’s testator, who made the following bequest:</p> <p>“ Sixteenth. I give and bequeath to Lucy Elizabeth Knight, wife of Lucius W. Knight, now residing at number one hundred and thirty-seven Harrison Avenue, in Boston, in the state of Massachusetts, during her natural life, the income or dividends from my one hundred shares oi the capital stock of the Boston & Maine Railroad Company, and from my ninety-three shares of the capital stock of the Eastern Railroad Company in Massachusetts, and from my fourteen shares of the capital stock of the Eastern Railroad Company in New Hampshire, and from my forty shares of the capital stock of the Boston & "Worcester Railroad Company, and from my forty-five shares of the capital stock of the Fitchburg Railroad Company; and from and after her decease I give and bequeath said income or dividends, during his natural life, to said Lucius W. Knight; and from and after the decease of said Lucy Elizabeth and of said Lucius W., I give and bequeath said income or dividends to the children of said Lucy Elizabeth and Lucius W., to be paid to them until all said children shall arrive 'at the age of twenty-one years, and when all said children shall have arrived at the age of twenty-one years, then I give and bequeath the said shares to said children and to the representatives of any deceased child or children in equal parts per stirpes, to have and to hold the same to them and their heirs. But if said Lucy Elizabeth and Lucius W. should leave no child living at their decease, then all the shares aforesaid shall merge in and become a part of the residuum of my estate.”</p> <p>Other facts sufficiently appear in the opinion.</p>

<p>On exceptions.</p> <p>The facts and questions raised are fully stated in the opinion.</p>

Bill in equity, heard on bill, answer and proof. On August 21, 1865, David Mitchell and his wife Eliza Mitchell, purchased a farm together with forty-four acres of other land of Scamman Burrill for $4,000, and paid down $2,130. The premises were conveyed to Eliza Mitchell and Eifield Mitchell, the youngest son of David and Eliza.

On eepoet. Writ oe entry, in which the plaintiff seeks to recover one undivided sixteenth of the real estate described in the writ, as heir of her father, Alexander Barnard, who died January 14, 1877, leaving four heirs, of whom the plaintiff is one.

<p> Deed. Condition subsequent. Restraint of marriage. </p> <p>A condition in restraint of marriage, subsequent and general in its character, annexed to a devise or conveyance from parent to child, is void unless there be a valid limitation over.</p> <p>A father conveyed to his daughter, with a proviso that the gift should stand if she remained single, otherwise the land to be divided among his three children, the grantee to have fifty dollars the most: Held, that the condition was subsequent, general, and void; that a limitation over to one’s heirs is of no effect, as a title by descent is the worthier title.</p>

On exceptions. Assumpsit for pauper supplies to Harriet Childs, wife of Robert Childs. The question in litigation was whether the pauper’s husband, Robert Childs, had his legal settlement at the time of his decease in the town of Belmont, or in the town of Morrill. The writ was dated February 12, 1877. Plea, general issue. It was admitted that the pauper fell into distress at the time stated in the writ, and that the supplies named therein were furnished by the plaintiffs.

<p> Award. Error. Remittal. </p> <p>An arbitrator made an award which, was larger, by a given sum, than it should have been, owing to an error, merely, in computation, and which could be made certain by mathematical calculation: Held, that this error does not render the award void, but it may be obviated by a remittal.</p>

On exceptions from the superior court. Action- oe assumpsit, brought in the name of James Larrabee, for the benefit of A. S. and E. E. Larrabee, his assignees. Writ dated January 20, 1875. The case was submitted to the presiding justice of the superior court to find the facts, with right of exception in matters of law.

On exceptions. This was an action of trespass quare elausum ; writ dated May 21, 1877, and tried by the justice of the superior court without the intervention of jury, subject to exceptions in matters of law. Plea, the general issue, with brief statement that defendant had a right of way over plaintiff’s close, and that the alleged trespass was only the rightful use of the way.

• On exceptions. 'Going Hathorn having claimed against the estate of David Hunter, the defendant’s testate, one hundred and fifty dollars and interest for breach of warranty in a deed given by said Hunter, October 11, 1861, to him, by reason of a portion of the land so deeded having been by him sold to some other person, a statute reference was executed between the plaintiff and defendant.

On report, from superior court. Debt on bond of collector of taxes. Writ dated December 13, 1875. Plaintiffs discontinued as to Orr, the principal in the bond, and the case proceeded against the sureties.

Bill in equity, brought under the provisions of R. S., c. 77, § 5, to obtain a construction of the will of Thomas McEwan, late of Portland, deceased, dated June 4, 1870. The case is fully stated in the opinion.

<p> Divorce. Libel. Support. Order in vacation. Contempt. Appropriate remedy. </p> <p>A libel for divorce, inserted in a writ, is to be regarded as pending after service on tbe libellee.</p> <p>After such service and before the return day of the writ, a justice of this court can in vacation, after notice to the libellee, order him to pay money for the support of his wife and for the expenses of litigation pending the libel.</p> <p>The husband neglecting or refusing to pay as ordered is in contempt for such neglect or refusal, but he may purge himself from contempt by proof of inability to comply with such order.</p> <p>No exceptions lie to the judgment of the presiding justice determining such ability or inability.</p> <p>In libels for divorce, commitment for contempt is an “ appropriate process,” to enforce the payment of money; or an execution in the usual form, may issue for the amount ordered to be paid and remaining unpaid.</p>

On report from superior court. The law court to render such judgment as the law and evidence require. Action in the nature of tort against defendant corporation for negligence of duty in not maintaining in good repair and in a safe, passable condition, their bridges, with their necessary approaches, and the places of access to their depots for the use of passengers. Writ dated December 1, 1877. Plea, general issue. The material facts appear in the opinion.

<p>On pacts agreed.</p> <p>Debt upon a judgment.</p>

On facts agreed. The property of the plaintiffs upon which the defendants have assessed a tax about which the plaintiffs complain, is a portion of what is known as the Fairfield boom, and that portion of it situate in the defendant town.

<p>On report.</p> <p>Trover'for six hundred cords of hemlock bark, taken by defendants June 1, 1876. Writ is dated June 7, 1876.</p> <p>Plea, the general issue.</p> <p>After the evidence was all out at nisi prius, the case was continued on report. The full court to have jury powers, and to settle the law and facts.</p> <p>The facts appear in the opinion.</p>

<p>On report.</p> <p>Writ .oe entry, dated July 1, 1875.</p> <p>Plea, nul disseizin.</p> <p>The full court to render such judgment as the law requires.</p> <p>The facts sufficiently appear in the opinion.</p>

On report. The principal defendants were declared bankrupts upon their own petition within four months after the writ in this case was commenced and service made on the trustee. The estate of the defendants was not conveyed to an assignee in bankruptcy, as no assignee was ever chosen or appointed, but the estate was settled under a resolution for composition which was approved and recorded by the court, the plaintiffs not taking the percentage offered upon their claim.

On report. Action of the case against defendant, as sheriff of the county, for the official neglect of bis deputy, G. S. Bean. Writ dated March 13, 1878. The plaintiff introduced writ, Hatch v. Carter et al., dated October 1, 1876, for balance due for rent, on which the livery stock of the defendants was attached; and subsequently the property so attached was sold by tlie officer, on the writ, according to law, for 8770.70.

On exceptions. Debt upon the official bond of Thomas Pennell as treasurer of the county of Cumberland, for the year 1874-, executed by Pennell as principal and the other defendants as sureties, containing the following condition : “ The condition of this obligation is such that whereas the said Thomas Pennell has been duly elected to the office of county treasurer of said county and entered upon the duties thereof; now, if the said Thomas Pennell shall well and faithfully…

On REPORT. Assumpsit on a promissory note of the following tenor : “ Knoxville, Tennessee, June 11-, 1870. One year after date I promise to pay to the order of Charles Seymour, with interest at the rate of ten per cent, one hundred and ninety-six and 15-100 dollars at said Seymour’s office in Knoxville, Tenn., value received. (Signed) J. D. Prescott.” Answer, duress and want of consideration. The material facts appear in the opinion. I. Duress. 1 Par. Con. (5 ed.) 392, 393.

Facts agreed. On motion, filed by said Peirce to have an off-set of judgments, the one against tlie other, so far as the smaller goes, except the costs due the attorneys. The facts are as follows : On the 19th day of May, 1873, said John P. Bent brought his action of trover against said Waldo T. Peirce, for the wrongful and unlawful conversion of two promissory notes of hand for $600 and interest, each dated January 6, 1873.

<p> Sale on writ. Remedy. Liability. Tort. </p> <p>A defendant whose chattels have heen regularly attached and sold opon the writ, and who prevails in the suit and recovers costs, caanot maintain an action of tort against the plaintiff in such suit for the article attached. The officer should return to the owner the proceeds of the property sold.</p>

<p> Original liability. Implied promise. Consideration. </p> <p>The defendant’s horse became diseased and sick while in possession of ojio who hired it of the defendant, and was_ left with the plaintiff for care and care by the hirer, and the plaintiff claimed pay of the defendant as the owner of the horse. The defendant knew that plaintiff was keeping the horse, and wrote to him, mentioning the fact of his ownership, and inquiring as to the condition of the horse, and saying that an uncle of the hirer would pay the bill.</p> <p>Held, that while it is the duty of one who hires a horse to pay the ordinary expenses of its keeping while he is using it under his contract, yet, if the horse become sick and disabled, without fault of the hirer, so that ho can no longer use it for the purpose for which he hired it, the consequent loss and expense falls upon the owner, who impliedly undertakes, when he lets the horse, that it shall be capable of performing the service for which it is let, and the owner is responsible to the hirer for such necessary expense as he incurred by reason of the failure of the horse to perform the required service.</p> <p>Held, that the naked fact that the horse became diseased and sick on the journey raises no presumption of negligence on the part of the hirer, but the presumption is the other way.</p> <p>Held, that, under the circumstances above stated, the knowledge of defendant that plaintiff was keeping the horse, and his permitting it to remain with him for that purpose, raised an implied promise on the part of defendant to pay the plaintiff as for services done and expenses incurred by plaintiff in and about the business of the defendant; and that defendant’s saying to plaintiff that somebody else would pay the bill, did not prevent the plaintiff from giving credit to defendant and holding him responsible for the keeping of the horse.</p>

On exceptions. On the 5th day of December, 1872, a certain indenture, under seal, was made and executed by the Consolidated European & North American Railway Company, party of the first part, and Samuel E. Hersey and Benjamin E. Smith, trustees upon certain trusts therein specified and provided, party of the second part, whereiu said corporation mortgaged certain real and personal estate to said trustees to hold and manage for the protection and security, and ultimate…

On exceptions. Indictment against Charles M. Frederic and Warren M. Daggett jointly, for assault and battery. At the September term, 1877, the defendants were jointly tried, when Daggett was convicted, but the jury disagreed as to Frederic. In that trial one Orrin Leeman and Warre’n Daggett were called by the defendants and testified.

On report. Trespass guare clausum fregit. The facts sufficiently appear in the opinion. On intention of the parties. Winthrop v. Fairbanks, 11 Maine, 307. On exception. Winthrop v. Fairbanks, supra. Hammond v. Woodman, 11 Maine, 192-1, 201, 203. 2 Wash. R. Prop. 688, 689. 1 Kent Com. 650, note /. Bartlett v. Corliss, 63 Maine, 287. Kempton v. Swift, 2 Met. 70. Johnson v. Ragner,. 6 Gray, 110. Furbush v. Lombard, 13 Met. 109. 1 Cruise’s Dig. (Greenl. Ev.) Tit. 32, note.

On report. Assumpsit upon a policy of insurance issued by the defendants to one George L. Skillings, and by him assigned to the plaintiff. The facts are sufficiently stated in the opinion.

On motion and exceptions. Case, for personal injuries received at a railroad crossing. The action was before the court on demurrer. See 67 Maine, 100.

On exceptions. Case for not permitting the plaintiff to ride on defendants’ railroad train. The following bill of exceptions was filed : “ It appeared that an excursion train was extensively advertised by defendants to run from Dexter to Belfast, and thence by steamer to Islesboro, July 30, 1877. The Dexter band was employed by defendants to attend the excursion for the sum of twenty-five dollars and a ticket for a lady to each member of the band.

Replevin, for two pairs of wheels, and other parts of a hack. Writ dated June 30, 1877. Plea, the general issue, with brief statement that the title and right of possession in the goods and chattels taken upon said writ were in the defendant. Tried by the justice of the superior court for Cumberland county, without the intervention of a jury, October term, 1877, subject to exceptions in matters of law.

<p> Forgery. Burden of proof. Fmdenee. Instruction. </p> <p>The burden of proof is upon the plaintiff to satisfy the jury that an apparent material alteration of the note declared upon was made before delivery.</p> <p>Tho paper itself may or may not satisfy them. What alteration, or degroo, or Mud of alteration, may exist without being suspicious enough to require explanation, is a fact for the jury to determine.</p> <p>A count upon anote, as dated November 23, 1869, may be amended so as to read August 23, 1869, there being but one note and of the latter date.</p> <p>Where tlie defense to a note is forgery, it is not admissible to exhibit other writings to show that the alleged forger has committed other forgeries, unless the papers offered present similitudes of the whole or some part of the note in question.</p> <p>It is admissible to show that a note, the alleged defense to which by a surety is that it was altered by tho principal after the surety signed it, was given to the payee by tho surety in payment of a similar genuine note between the same parties. Such evidence would be circumstantial and not conclusive.</p> <p>Where to an action on a promissory note for $2000 the defense is that it has been altered from a note for $200, and tho plaintiff offers testimony tending to show that the note in suit was given to renew another for $1900 and interest signed by same persons, an instruction that, if the jury are satisfied that tlie note in suit was so given, they need proceed no further, provided it was taken in good faith, is erroneous.</p>

On report. Trespass qiiare clausum fregit. Date of writ, July 12, 1876. Defense, general issue, and brief statement that whatever acts were committed were done in the lawful discharge of his duty as street commissioner, in repairing a public or town way under direction of the city government.

On REPORT. Assumpsit, brought by the assignee of one Henry Fahey, against Fahey’s employer, upon the following assignment, under seal, signed by Fahey : “Know all men by these presents, that I, Henry Fahey, of Lewiston, in the county of Androscoggin and state of Maine, in consideration of one hundred and eight dollars to me paid by B. F. Getchell, of Lewiston, in the county and state aforesaid, the receipt whereof I hereby acknowledge, do hereby assign and transfer to said…

On exceptions. Debt on a bond, given to procure a supersedeas on a petition for review of an action of replevin, commenced by the defendant Collins against the plaintiff. Plea, performance, and a brief statement of facts in mitigation of damages. The remaining material facts are sufficiently stated in the opinion. contended that the evidence offered in mitigation of damages was admissible. Sedg. Dam. 628. BeWitt v. Morris, 13 Wend. 496. Squire v. Hollenbaclc, 9 Pick. 551.

<p>On report.</p> <p>Debt on the official bond of Samuel Brown, as collector of the town of Richmond tor the municipal year of. 1872. The bond was duly executed by Brown as principal and by these defendants as his sureties. It stipulated that they “ are holden and stand firmly bound and obliged unto the inhabitants of said town of Richmond in the sum of twenty-four thousand dollars to be paid to the said inhabitants, to the which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators firmly by these presents.”</p> <p>The material part of the declaration was as follows: “ In a plea of debt, for that the said Hagar and Toothaker, together with one Samuel Brown, by a certain writing obligatory, made and sealed, and as the deed of the said Hagar, Toothaker and one Samuel Brown, on the thirteenth day of July, A. I). 1872, at said Richmond, delivered to the plaintiffs, which is here in court to be produced, acknowledged themselves to be bound to the plaintiffs in the sum of twenty-four thousand dollars to be paid to them on demand.”</p> <p>The defendants pleaded non est factum, with a brief statement sotting out the conditions of the bond, (which was in the usual form) and alleging full performance.</p> <p>The plaintiffs put in evidence the collector’s warrant, containing, among other things, the following illegal directions: “ And for want of goods or chattels whereon to make distress, besides those animals, implements, tools, articles of furniture and other goods and chattels which are by law exempted from attachment for debt, for the space of twelve days, you are to take the body of,” etc.</p> <p>They also put in the commitment, showing the state tax to be $7,137.38, county tax $1,834.60, and town tax $15,570.24, aggregating $24,542.22. It was admitted that the collector had paid to the state, treasurer $2,744.02, and to the county treasurer the whole of the county tax.</p> <p>The’ plaintiffs introduced the testimony of Samuel Brown, tending to show that there had been collected by himself and his sureties (who took the collector’s book from him at a certain time) all the tax committed to him except $211.60.</p> <p>It also appeared that, on February 20, 1873, Brown settled with the selectmen and treasurer, and found the sum of $2,341.04 due to the town; that, in accordance with the usage which had been followed for several years past, the collector gave to the treasurer a joint and several unnegotiable note of that date for that sum, signed by himself, and by these defendants as sureties, payable on demand, containing the declaration that the sum for which the note was given was “ the amount due the town for its portion of taxes of 1872 committed to him for collection, as per settlement with the selectmen this day.”</p> <p>It also appeared in evidence that, on May 14, 1873, upon the petition of his creditors, Brown was adjudged a bankrupt; that, on March 10, 1874, the note above mentioned was proved in bankruptcy by the town agent of Biehmond, against the estate of Brown, bankrupt; and that, on May 19 following, the town received a dividend of $548.34.</p> <p>It also appeared that the state treasurer issued his warrant against Brown in July, 1873, on which the sheriff collected $1,275.20, and that another was issued in the following October ; but that no arrest of Brown was made on either.</p> <p>It also appeared that the town, on July 2, 1873, paid the state treasurer $1,717.13; on December 12, 1873, $2,612.91; and on January 24, 1874, $63.32 ; making $4,393.36 in all.</p> <p>It also appeared that the plaintiffs, on September 27,1875, sued Brown for money had and received, and trusteed James M. llagar, one of the defendants; that a judgment was recovered and the trustee charged for $300. The action was lor money collected by Brown on the tax bills of 1872. The costs of that action were $101.54.</p> <p>It also appeared that, at various times after February 20, 1873, (the date of the note) Brown paid to the town divers sums, amounting in all (including the dividend on the note) to $3,936.32.</p> <p>There was testimony tending to show that Brown had held the office of collector for several successive years, and that he had appropriated divers sums collected to preceding years.</p> <p>The former judgment and various other testimony was objected to by the defendants; but the view taken by the court renders a report of it unnecessary.</p> <p>The case was taken from the jury and reported to the full court, who were to render judgment, upon so much of the testimony reported as was legally admissible, according to the legal rights of the parties ; and that if any evidence had been improperly excluded, the case to stand for trial, at the option of the party aggrieved thereby.</p> <p>contended, inter alia, that the giving of the note was a binding settlement between the parties, and transferred the liability of the sureties from the bond to the note; that the receiving of the dividend was a ratification by the town; that the provisions of K>. S., c. 6, §§ 123-127, should have been complied with; that the action is not maintainable against the defendants alone.</p>

On report. Trespass guare clausum fregit upon certain land in that part of the town of Woodstock, in the county of Oxford, which was formerly lot numbered four in Hamlin’s Grant Plantation. Trespass alleged -July, 1876. Writ dated August 22, 1876. Plea, general issue and title in the defendant.

On eaots agreed. Forcible entry and detainer, to recover possession of tliree rooms on the ground floor of the west half of the dwelling house formerly occupied by Sabattis Peol Susup, Fransway Peol Susup and Francis Xavier Susup, and the outbuildings connected with the same in possession of Tomer Sabattis, and the lot of land on which the buildings stand and appurtenant thereto, all situated on Oldtown Island. Plea, not guilty.

On exceptions. Case for deceit. The defendant sailed upon shares the brig L. Warren, belonging to the plaintiffs. He made a settlement of the vessel’s accounts at New York, bringing himself indebted to the owners in the sum of $1,431.36. He thereupon wrote the following letter to John A. Buck, agent of the owners, dated January 10, 1875: “New York January 10th, 1875. John A. Buck, Fsq.: We have done nothing yet in way of charter, hav’nt even had an offer.

<p>Trespass guare clausum fregit.</p> <p>On report to the law court with jury powers, with the stipulation that, if the action is maintainable, it is to stand for trial.</p> <p>The facts sufficiently appear in the opinion.</p> <p>cited Pichering v. G^angdon, 22 Maine, 413. Morton v. Barrett, 22 Maine, 257. Orr v. Moses, 52 Maine, 287.</p>

Bill in equity, heard on bill, answer and proof, whereby the complainant seeks to establish, as an existing charge upon the land mortgaged, two mortgages given by the defendant Wallace, to the city of .Portland and the other to the complainant.

On report. Writ of entry. Plaintiffs and defendant claim title from same owner. Title of defendant depends upon the question whether a valid attachment, so as to create a lien upon the real estate of one Augustus Moulton, was made February 15, 1875, in a suit, Daniel IF. O’Brion, administrator, v. Augustus Moulton.

On exceptions. Action to recover for supplies furnished Nason A. Pitts and his family, as paupers. Legal notice from plaintiff and legal denial from defendant town were admitted. No question was raised as to the poverty of Pitts, or that the supplies were duly furnished.

<p>On report.</p> <p>Covenant broken.</p> <p>The declaration is sufficiently recited in the opinion, together with the pleadings.</p> <p>The plaintiff introduced a deed of warranty, dated July 17, 1831, duly acknowledged and recorded, from Samuel Murray to Benjamin Reed, (defendant’s intestate) conveying certain land situated on an inlet of the Damariseotta river, in Boothbay, the second and third calls in which were “ thence north twenty-two degrees east seventeen and one-half rods to the shore of Damariscotta river — thence northerly and westerly, as the said shore lies, round a point of land and round the head of a cove to the northeast corner of land of,”' etc.</p> <p>Also a deed of warranty, dated May 5, 1863, duly acknowledged and recorded, from Benjamin Reed to the plaintiff, of a certain piece of flats, or known and used as a dock privilege, in said Boothbay — describing the premises by metes and bounds. The premises described are flats adjoining the land described in the former deed mentioned. The consideration of the deed purporting to convey the flats was two hundred dollars.</p> <p>The remaining facts sufficiently appear in the opinion.</p> <p>The right claimed by Hodgdon in his writ to the use of the waters of the stream and cove was not an incumbrance upon the title to the flats, and is not a breach of any of the covenants in Need’s deed. Dunklee v. Wilton P. R. Co., 21- N. II. 187, 508. Kellog v. Ingersoll, 2 Mass. 97, 99. Boston do Uingham S. B. Go. v. Munson, 117 Mass. 31, 39. Ballard v. Child, -16 Maine, 152. Prescott v. Williams, 5 Met. 129. Wash. Ease. (2 ed.), 276.</p> <p>No eviction is alleged or proved. Emerson v. Prop, in Minot, 1 Mass. 161. Marston v. Hobbs, 2 Mass. 133. Twambley v. Henley, 1 Mass. 111. Bear a v. Jackson, 1 Mass. 108. Chapel, v. Bull, 17 Mass. 213. Boothbay v. Hathaway, 20 Maine, 251. 2 Wash. N. Prop. 717, 665*.</p> <p>In case of breach of covenant of seizin the measure of damages is the consideration and interest. Stubbs v. Page, 2 Maine, 378. Cushman v. Blanchard, 2 Maine, 266. Bickford v. Page, 2 Mass. 155,160, 161.</p>

On exceptions. Action of assumpsit, wherein plaintiff seeks to recover the rents and profits of certain lands assigned and set off to her as and for her dower. Subsequent to her writ demanding such assignment and being for the years 1870, 1871, 1874, 1875, and 1876, —she alleging that defendant withheld the premises assigned to her after the demand during those years. Writ dated February 17, 1877.

On report. Action on the case for the alleged revocation of a written agreement of submission. Writ dated October 30, 1870. Plea, general issue, and brief statement denying revocation of the submission declared upon. Facts are stated in tbe opinion.

On report. This action originated before a magistrate, under R. S., c. 27, § 37, by whom a decree was rendered against the claimant, Noah Chandler, who took an appeal according to law. It is admitted that the following facts are true so far as the same are provable under the claim and no further, viz: The claimant owns the liquors.

On facts agreed. Action of dower. Marriage, seizin, death of husband and demand of dower admitted.

On report. Writ of error to reverse a judgment rendered by Robert Knowles, Esq., a trial justice in and for this county.

On report for the legal adjudication of the rights of the parties by the law court which is to decide of what portion, if any, the demandant is dowable, and upon what principles the dower is to bo assigned and damages to be assessed, the damages for detention to be assessed by the commissioners who may be appointed to assign the dower in the land.

On exceptions. Assumpsit against defendant as administrator of Joseph P. Boswell, late of Solon, deceased. Writ dated September 30, 1874, and contains count for $3,000 money had and received, and nothing else, and alleging the money was due from said Joseph P. Buswell and to the plaintiff.

<p>Error, — writ of. Becord. Taxation of costs.</p> <p>To reverse a judgment for error in. law, the error must be one apparent upon the record, which, or a transcript thereof, the plaintiff must produce; and if no error there appears, none will be presumed.</p> <p>Documents and records filed in a case form no part of the record thereof unless incorporated in it.</p> <p>Nothing can bo assigned for error in law which contradicts the record.</p> <p>An irregularity in entering up a judgment is not ground for error.</p> <p>Error in computation or amount is to be corrected on review.</p> <p>An erroneous taxation of costs not disclosed by the record affords no ground for the reversal of a judgment.</p>

<p>Slander. Actionable words, — amendment.</p> <p>To speak of and concerning the plaintiff, “ he has not been able to do any work for the last three or four years; that he was about dead with the bad disease, and that his died with it;” is not actionable. The words do not import a charge of having a loathsome or contagious disease, — this being necessary in actions for such slanders.</p> <p>Motions for amendments should be passed upon by the court at nisi prius. Amendments which do not appear to be for the same cause of action set out in the declaration are not allowable.</p> <p>Where the words spoken, upon which the plaintiff relies, are proved, if there appears to be a variance between the allegations in the declaration and such .word in the tense of the verb, or in some other particular, and still the judge can see that the cause of action is substantially the same, it will be competent for him to allow the necessary amendment to obviate the variance on such terms as he may deem just.</p>

<p>Evidence. Auditor, — hearing before.</p> <p>Invoices, bills of lading, or protests, are not admissible as evidence, in a suit upon an insurance policy, to show tbe loss sustained by tbe person insured. An auditor cannot receive in a bearing before bim any but legal evidence.</p>

On exceptions. This was a trial upon a complaint for having liquors in the respondents’ possession, with intent to sell the same in violation of law. It is alleged in the complaint that the respondents had been before convicted of the same kind of offense.

<p>On report.</p> <p>Writ of entry to recover possession of a certain messuage in Bethel: “ Beginning at a point on the southerly side of the county road leading from tlie depot in said Bethel to Bethel common, twenty-five and one-half feet westerly from the westerly side of the two-story house thereon situated, and on a line parallel with the westerly side thereof,” thence certain courses and distances to the first mentioned bound.</p> <p>The plaintiff relied upon a deed of warranty from Samuel S. Dunn to Charles P. Knight, dated February 9, 1869, duly acknowledged and recorded, in which the premises were described the same as in the declaration, with tlie exception of the word “ parallel.” Deed of assignment from John W. May, register in bankruptcy, to Charles E. Holt, assignee of Charles F. Knight, a bankrupt, duly acknowledged and recorded. Quitclaim deed from Charles E. Holt, assignee of Charles P. Knight, dated October 9, 1875, duly acknowledged and recorded; in which the releasor quitclaimed all his “ right, title and interest in and to a certain piece or parcel >of land, with the buildings thereon, situated in Bethel aforesaid, to wit: on the corner of Main and Spring streets, in the village of Bethel Hill, and being the same premises the said Knight now occupies, — my interest being the equity of redemption in said premises as deeded to me April 1, A. D. 1875, by the H. S. district court of Maine, and being the same 1 sold October 2, 1875, by order of said court, at public auction, to the highest bidder for the sum of three hundred and two dollars, and to said Samuel F. Gibson.” The certificate of the clerk of district court of the United States for the district of Maine, by which it appeared that Charles P. Knight was adjudged a bankrupt, upon the petition of his creditors, on February 4, 1875.</p> <p>The defendant relied for title upon a mortgage deed from Charles P. Knight to the Norway savings bank, dated November 2, 1874, and which purported to be acknowledged November 2, 1874, “ before Henry M. Bearce, justice of the peace,” and recorded in the Oxford registry of deeds November 3, 1874.</p> <p>The description of the premises in the mortgage is a transcript of that in the deed of Dunn to Knight, together with the following clause: “ Being the same premises conveyed to me by Samuel S. Dunn, deed dated February 9,1869, aud recorded with Oxford records, book 154, page 84, reference to said deed and the record thereof being hereby made.”</p> <p>It was admitted that the savings bank advanced the amount of money ($1,500) mentioned in the mortgage, to Knight, in good faith, at the date of the mortgage, without knowledge that Knight was in failing circumstances; that the conditions of the mortgage have never been fulfilled; and that this was the only mortgage on the premises-.</p> <p>The view taken by the court renders report of foreclosure unnecessary.</p> <p>The court were to render such judgment as the legal rights of the parties demand.</p> <p>Plaintiff and defendant rely upon title derived from the same grantor. Which has the better title ? JR. S., c. 104, § 8.</p> <p>If the defendant goes to trial upon the general issue, he admits that the demandant has been ousted by him, and that he is tenant of the freehold from which demandant was ousted. 8 Cranch, 243. 5 Mass. 352. 13 Mass. 259, 443. Mills v. Pierce, 2 N. H. 10. Stearns K. Act. 205, § 22.</p> <p>It nowhere appears that the corporation defendant authorized any one to act for them in loaning the money and accepting the mortgage. llwinal v. Holmes, 33 Maine, 172, 452. Handall v. lunt, 51 Maine, 246.</p> <p>Nobody but the trustees could loan the money. Sect. 4 of the charter.</p> <p>The proceedings for foreclosure are signed by Henry M. Bearce, treasurer. Being treasurer, he could not take the acknowledgment of Knight’s mortgage to the bank. Beaman v. Whitney, 20 Maine, 413. The acknowledgment not being legal, the plaintiff is not chargeable with the constructive notice of the registry.</p> <p>The Knight mortgage does not cover premises described in declaration. The starting places are different, and the Knight mortgage covers only a part of the premises demanded.</p> <p>On construction of deeds, plaintiff cited Ghadbourn v. Mason, 48 Maine, 389. 27 Maine, 405. 34 Maine, 305. 29 Maine, 169* 2 Saund. 401, note 21. Vose v. Handy, 2 Greenl. 322. Wing v. Burgess, 13 Maine, 111. 54 Maine, 301. 7 Pick. 276. 46 Maine, 374.</p>