Volume 70 — Maine Reports

Bill in equity, heard on bill, answer and proofs. The bill is dated May 15, 1869, and was brought by William McLoon, of Kockland, in the county of Knox, merchant, now deceased, and is prosecuted by the plaintiffs as his legal representatives. The facts are recited in the opinion.

Bill in equity, heard on bill, answer and proofs. The bill alleges that plaintiff on November 17, 1875, formed a partnership with the defendant under the firm name of Collins & Decker, manufacturing flour, corn, meal, and grain, and dealers in the same, and doing custom work in a mill belonging to the plaintiff in Clinton in said county of Kennebec; that said defendant had on hand at the time about $300 worth of corn which he turned into the partnership, also paid from his…

On exceptions, and motion to set aside verdict as against evidence, and on account of excessive damages.

Assumpsit on note of following tenor : “Skowhegan, Me., October 1, 1874. One year after date I promise to pay to the order of O. B. Mahan, four hundred and eighty-seven dollars, at the GraniteNational Bank, Augusta, Maine. Value received.

On facts found by a referee, with agreement that the law court may order such judgment as may be proper upon the facts thus found. Trover for certain logs and lumber manufactured therefrom. Writ dated October 18, 1877. The facts fully appear in the opinion. contended that the permit was an agreement by which the plaintiff sold, and Penny & Davis bought, personal property. The trees were a part of the realty, but, when severed from the land, vested in Penny & Davis.

On demurrer. Writ dated October 5, 1876, and contained two counts, to each of which a separate general demurrer was filed and joined; but from the view taken by the court the first count only is stated ; the materia] parts of which are as follows : “And the defendants then and there employed the said deceased Silas H. Potter, in the capacity of a section man, to take charge of their said railroad track between said Waterville and West Waterville, and to keep the same in…

On report. Case. The declaration is as follows : “ In a plea of the case, for that on the eleventh day of December, A. D. 1875, the defendants were the owners and operated a railroad known as the Maine Central Railroad, passing through the towns of Waterville and West Waterville, in the county of Kennebec, and were common carriers of passengers and persons between said Waterville and West Waterville, and were then and there bound and required by law to carry and transport…

<p>On report.</p> <p>Assumpsit on a promissory note of the following tenor :</p> <p>“ For value received we promise to pay R. 0. Johnson or order two thousand dollars one year from date, with interest semi-annu- ■ ally at six per cent as it accrues. (Signed) Hersey & Woodward, prin. H. H. Johnson, surety. Belfast, Dec. 7, 1869.”</p> <p>Writ dated March 15, 1878, and was served same day on Belfast National Bank, trustee.</p> <p>The facts sufficiently appear in the opinion.</p> <p>The question of the liability of the trustee was submitted to the law court upon so much of the disclosure, allegations and testimony as is legally admissible, and judgment to be rendered in accordance with the law.</p> <p>W. JET. Fogler, for the plaintiffs.</p> <p>J. Williamson, for the trustee, among other things, said:</p> <p>I. The bank cannot be charged under general provisions of R. S., c. 86, because ordinary trustee process will not lie unless the trustee owes the principal defendant money, or is otherwise liable to be sued by him. Skowhegan Bank v. Farrar, 46 Maine, 293.</p> <p>II. And no suit could be here brought by the principal defendant against the bank. Farley v. Lovell, 103 Mass. 387. Homer v. Wood, 11 Cush. 62. Tay v. Ladd, 15 Gray, 296. Jones v. Yates, 9 B. & 0. 532. Wallace x. Kelsall, 9 M. & W. 274. Gordon v. Ellis, 7 M. & 607.</p> <p>III. Nor could Hersey, one of the principal defendants, sue alone. Wells v. Mitchell, 1 Ire. Law. 484.</p> <p>IV. Nor can the bank be charged under the special provisions of It. S., c. 86, § 63; for there was no actual fraud on the creditors of the firm. No fraud in law is to be inferred from the simple fact of taking payment from firm funds. Wallace v. Kelsall, 7 M. & W. 272. No constructive fraud. The bank must have had knowledge of the design of the principal. Blodgett v. Chaplin, 48 Maine, 322.</p> <p>V. The bank had a right to receive payment made to it on account of Woodward’s debt. Ridley v. Taylor, 13 East. 175.</p> <p>VI. Hersey had means of knowing that the transaction had taken place. All the circumstances show a precedent authority or subsequent ratification on the part of Hersey. Direct evidence is not required. Sweeisir v. French, 2 Cush. 309. Ex parte Berbonus, 8 Fes. Jr. 540. Kendall v. Wood, (L. R.) 6' Ex. 243. Smith v. Hill, 45 Vt. 90. Swan v. Siedman, 4 Met. 848. Butler v. Stocking, 8 N. Y. 408. Garter v. Beaman, 6 Jones (Law), 44.</p> <p>VII. It falls within the powers of a partner to pay his private debt by setting it off against the debt due his firm. Ex parte Kirby, Buck’s R. on Banks, § 511. Henderson v. Weld, 2 Camp. N. P. R. 561. And he may make an executory contract to this effect. Perry v. Butt, 14 Ha. 699. Greeley v. Wyeth, 10 N. H. 15. Hills v. Goe, 4 McCord (Law), 136. Tay v. Ladd,, 15 Hray, 296.</p> <p>He can equally well pay it in money of the firm. A partner has the power of disposing of the assets of the firm beyond a mere agency. Bars. Bart. (3 ed.) 170, 171.</p> <p>This is not the attempt to bind all the partners by an executory contract made by one partner, but an executed payment of money. Bob v. Halsey, 16 Johns. 34. It is not the case of a partner trying to fix a contract upon a partner, but of a partner trying to impeach a payment by a fellow partner. Homer v. Wood, 11 Cush. 62.</p> <p>VIII. Rogers v. Batchelor, 12 Bet. 221, is criticised at great length in Locke v. Lewis, 124 Mass. 1. Caldwell v. Scott, 54 N. H. 414, is decided on the weight of New Hampshire authorities.</p> <p>Counsel also cited Ex parte Yonge, 3 Yes. & B. 36. Colly. Part. (5 Am ed.), § 182. Anthony v. Wheaton, 7 R. I. 490. darter v. Beaman, 6 Jones (Law), 44. Duncan v. Loundes, 3 Camp. 478. Halls v. Kirkpatrick, 4 McCord, 136.</p>

On report. Bill in equity, which in substance alleges that in March, 1866, in pursuance of a previous agreement between the parties, the defendant, at the request of the complainant, purchased of one Wilson a lot of land and buildings thereon for $950, paying $400 down (which was furnished by the complainant) and gave his note for $550, secured by a mortgage on the premises; that the same was done for the benefit of the complainant and as a loan to him; that the defendant…

<p> Indorsers, notice. Liability. </p> <p>Sureties on a promissory note made in Massachusetts, and while the statute there was in force, approved June 30,1874, are entitled to notice of non-payment thereof, when, and only when, indorsers would "be.</p> <p>Having been fully secured by a pledge of money for their liability on the note, and money having been appropriated to the payment thereof, and the sureties authorized to use it for that purpose, they were not entitled to notice of non-payment.</p>

Bill in equity, heard on bill, answer and proof. The bill alleges in substance that on April 7,1868, he conveyed by quitclaim deed certain land to his mother (Hannah Stevens); that being about to travel, he took a note for $500 and a moi’tgage of the premises from his mother running to his wife (respondent) to hold in trust for him until his return; that his wife was then in Massachusetts, paid no part of the consideration and knew nothing of the transaction until he sent…

<p>On motion to set aside verdict.</p> <p>This action which was for breach of warranty in the sale of a horse, was tried by a jury at the February term, 1879, of the superior court for Kennebec county, and a verdict found for the defendants. Thence the action was continued to the next April term on plaintiff’s motion for a new trial, because of the alleged misconduct of jurors. The motion sets out the following causes alleged by the plaintiff:</p> <p>“ Because, he says, that he has been informed since the trial in this case, during the trial and while the case was pending, sundry members of the panel, before whom the case was being tried, to wit: Hosea Blaisdell, Levi Perkins, Joseph Douglass and Frank B. Lowell, went to the stable of Hiram Reed, in Augusta, and there examined the mare, whose soundness was in controversy in the case, and then and there examined the size and condition of her off hind leg and thigh and the bunch thereon, in the absence of the plaintiff or his attorney, and without his knowledge or assent, and without the order, of the court in that behalf; and the size and condition of said leg and thigh of said mare, and the bunch thereon, were material facts in controversy between the parties, there being conflicting testimony in regard to the same as will appear by a full report of the same. And the plaintiff further says that he expects to prove the facts herein stated by Alfred M. Reed, of Augusta. Charles Gifford. By L. Clay and H. Farrington, his Atty’s.”</p> <p>The motion was not verified by the affidavit of the plaintiff or his attorneys, nor was there any report of the evidence; but the testimony of Ilosea Blaisdell, Levi Parker, John Morrill, Joseph Douglass and P. 33. Lowell (who were five of the jurors who tried the case), and Alfred M. Peed, who kept a stable where the horse remained during the trial, accompanied the motion.</p> <p>The facts sufficiently appear in the opinion.</p> <p>cited Dennett v. Dovj, 17 Maine, 20, and note. Winslow v. Morrill, 68 Maine, 362. Bowler v. Washington, 62 Maine, 302.</p>

On exceptions. Assumpsit on account annexed, one item of which was for one thousand cigars, sent to the defendant by the plaintiff in answer to the following order or letter: “Bangor, Me., April 11th. W. F. Abbott, Sir: Please send me an assortment of cigars for a new place. I want about four hundred good nice ones, and six hundred of good cigars, that I can sell for ten cents each.

On exceptions. Assumpsit on contract of 'warranty of six sets of carriage springs sold by defendants to plaintiffs, January 30, 1872, at the price of $43, and used by plaintiffs in the construction of six carriages. Plaintiffs claimed special damages in one count of the writ. Plea, general issue.

On exceptions. Scire facias. Writ dated September 2, 1876, and declares as follows: I. “Whereas, John F. Bickford, of Maysville, in said county, by the consideration of our justice of our supreme judicial court held at Houlton, in and for the county of Aroostook, aforesaid, on the last Tuesday of February, 1876, recovered judgment for the sum of $53.70 damages, and costs of suit taxed at $14.45, in the hands and possession of Thonms Flannery, of Fort Fairfield, in said…

<p>• On motion to set aside verdict, as against law, evidence, and the weight of evidence.</p> <p>Action eor supplies furnished by the plaintiff town to Wesley G. Daggett, Elizabeth B. Daggett, his wife, and Florence, Katy, Luther, Ida, Charles, James, Alberta and Flora Daggett, their children, on June 16, 1876, and who were alleged to have fallen into distress within the unincorporated place called Oakland, — the oldest incorporated town adjoining being said town of Linneus.</p> <p>Date of writ, August .16, 1877. Flea, the general issue.</p> <p>It was admitted that the necessary notices were given in proper form and at due times, and replies made by defendant town in due time, and that Linneus is the oldest incorporated town adjoining Oakland.</p> <p>The facts sufficiently appear in the opinion.</p> <p>I. That there was no evidence that these were pauper supplies, and furnished as required under this statute.</p> <p>II. No evidence of an adjudication or ratification by the majority of the board of overseers of the poor of Linneus, that the pauper was destitute and in need of immediate relief. The following authorities were cited: Bmithfield v. Waterville, 61 Maine, 412. Boothbay v. Troy, 48 Maine, 560. Verona v. Pembroke, 56 Maine, 14. Windsor v. China, 4 Maine, 298. Fayette v. Livermore, 62 Maine, 229.</p>

On facts agreed. Assumpsit on the following contract signed by the defendant: “ Piscataquis, ss. May 10, 1876.

On report. Action of case for an injury received on the highway in Fayette, January 30, 1877. To prove notice of her injury to the defendants, plaintiff produced a paper dated February 16, 1877, signed by her husband, John Hubbard, also a paper dated March 10, 1877, signed by said John Hubbard; also answer of the selectmen of defendant town dated April 13, 1877.

On report. Trespass for a mare. The facts are stated in the opinion. The case was by agreement taken from the jury and reported to the law court. If, upon the evidence in the case, the action can be maintained it is to come back for trial to a jury; otherwise the plaintiff is to be nonsuited.

On motion and exceptions. Trespass against the sheriff of this comity for the alleged misfeasance of his deputy, in entering store No. 88, Marble Block, Biddeibrd, and taking goods therefrom, in June, 1877.

On report. Bill in equity. The material allegations of the bill and answer will be found in 64 Maine, 23. When the case was before the court as reported above, the bill was sustained and the estate declared subject to the resulting trust claimed. The opinion then ordered a master to be appointed to ascertain the true condition of the mutual demands between the parties.

On report. Assumpsit to recover balance due for 8 177-200 tons of hay, $75.75 having been already paid. The facts sufficiently appear in the opinion. The court to render such judgment as may be fit upon the law and fact.

On exceptions. Assumpsit. The only question raised by the exceptions was upon the ruling of the. presiding justice whereby he discharged the trustee upon the disclosure. cited Par. Con. 539. Emery v. Davis, 17 Maine, 252. 16 Maine, 17. 9 Pick. 441. 7 Oush. 485. Dwinel v. Stone, 30 Maine, 384. Smith v. • Gaboon, 37 Maine, 281. Hill. Sales, 274, 275. The trustee should be charged. See Balkham v. Lowe, 20 Maine, 369. Lane v. Nowell, 15 Maine, 86. Hooper v. Day, 19 Maine, 56.

<p>On report.</p> <p>Assumpsit to recover balance of certain items of expenses enumerated in a certain indenture between O. H. Knowlton of the one party, and the defendant, J. D. Spear and J. E. Robinson, of the other, amounting to $110.13, less $43.42.</p> <p>The plaintiffs claimed to recover by virtue of the indenture named and the assignments of Knowlton to the plaintiffs, and of the defendant, Spear and Kobinson to the plaintiffs.</p> <p>The indenture and assignments sufficiently appear in the opinion.</p> <p>The plaintiffs offered evidence tending to prove that it was the understanding, at the formation of the plaintiff corporation, that the defendant, Spear and Kobinsou were to continue liable for expenses as before the organization, and that the plaintiffs were in. fact to be subrogated to, or to succeed to the rights of Knowlton under the indenture ; also evidence to prove a reference by plaintiffs and defendant, a year or so after the incorporation of plaintiffs, of the question as to whether there had then been such a sale, under agreement “A,” as to determine the liability of the defendant thereunder, as showing the construction placed upon the several agreements by these parties; also evidence to prove that, subsequent to agreement “A,” the stock or interest originally owned by or derived from O. JEt. Knowlton has never been assessed by the company for any expenses or liabilities, and that all the other stock has been, and that this was in pursuance of the original understanding at the making of agreement for incorporation.</p> <p>Defendant, objected to all parol evidence, because the several contracts and all the transactions between the parties are in writing, and cannot be enlarged, varied, controlled or explained by such evidence.</p> <p>It was admitted for the purposes of this action that C. H. Knowlton has performed all that was obligatory upon him under the indenture, and that several patents have been taken out and assigned by him to the company since its formation ; and that J. P. Cilley, John Carr, Herbert C. Havener, Alonzo Snow and John C. Knowlton purchased the interest they owned at incorporation from C. H. Knowlton prior to the incorporation.</p> <p>The action was marked law on report, with the stipulation that, if the parol testimony offered was admissible, or if the action was maintainable without it, the action was to stand for trial; otherwise plaintiffs tp become nonsuited.</p> <p>cited JDwinel v. Barnard, 32 .Maine, 116. Lejfingwell v. Elliott, 8 Pick. 455. Holland y. Graft, 3 Gray, 162. Longley v. Longley, 23 Maine, 39. Haven v. Brown, 7 Maine, 421. Eolsom v. Merck. M. Ins. Go., 38 Maine, 414. Emery v. Webster, 42 Maine, 204. Bradford v. McCrary, 45 Maine, 9. Qovel v. Hart, 56 Maine, 518.</p> <p>On the admissibility of evidence. 1 Greenl. Ev., §§ 289, note 2 ; 287, note 1. Hawen v. Brovin, supra. Hatch v. Kimball, 16 Maine, 146. FicJeett v. Swift, 41 Maine, 65. Courtenay v. Fuller, 65 Maine, 156.</p>

On report. Assumpsit by indorsee against the maker of a promissory note. After the note was read in evidence, the defendant offered the receipt following, signed by M. E. Rice, the payee, which was excluded: “Received of H. H. Lyford two notes of hand, dated in December last, for three hundred dollars each, one payable in six months from date, the other seven months from date. These notes are for my benefit, except for his note due me April 15, 1872, for $225.

On exceptions. On December 9, 1878, the judge of the court of insolvency, on application of the creditors of the appellant, issued a warrant for taking possession of the appellant’s estate in accordance with the provisions of Stat. 1878, c. 74, §§ 14, 15. The warrant was made returnable December 24, 1878, and ordered the appellant to then appear.

On motion and exceptions. Trespass for taking and carrying away a stock of boots, shoes and leather, of the alleged value of $534.53, claimed by the plaintiff. Date of writ, September 13, 1876. The defendant justified as a deputy sheriff under a writ in favor of the Waterrille Bank v.-Isaac Robinson dh another, from whom the plaintiff acquired her title.

<p>On report from the superior court of the county of Kennebec.</p> <p>Case against the- sheriff of the county of Kennebec, to recover damages for an alleged neglect-of one of his deputies to attach real estate as directed in a writ in behalf of the plaintiff against one Benjamin Haines as principal defendant, and the city of Gardiner as his trustee.</p> <p>The material facts sufficiently appear in the opinion.</p> <p>The law court, by agreement of parties, were to render judgment upon the facts and law applicable thereto.</p> <p>cited Todd v. Darling, 11 Maine, 34. Crockett v. Ross, 5 Maine, 443, 445. Boynton v. Flye, 12 Maine, 17. Pearson v. Tincker, 36 Maine, 384-388. Abbott y. Jacobs, 49 Maine, 319.</p>

<p>On report.</p> <p>Case for damages for the detention and non-delivery, and the not forwarding, within a proper and reasonable time, of a car of mowing machines and parts of mowing machines, whereby the plaintiff was unable to fill his contract for and sell forty-five machines, and to use the parts in repairing other machines.</p> <p>Plea, general issue.</p> <p>The following facts were agreed :</p> <p>In the summer of 1876, a car containing mowing machines and parts of mowing machines was shipped from Little Falls, N. Y., to the plaintiff, directed to Bangor, Maine.</p> <p>After coming over various connecting railroads, in the ordinary course of transportation, the car arrived in Boston over the Fitch-burg railroad, July 1, 1876 ; and on that day (which was Saturday), and probably in the afternoon, it was placed by the latter company on the track of the defendant company in Charlestown, Mass., at usual place of transfer between the roads, and what is called a memorandum bill was left at the crossing man’s house near by. No notice was given of the same by the servants of the Fitchburg company to the servants of defendant company, and it is not customary to give such notice, each company taking cars which they find upon their track.</p> <p>On July 3, 1876, the servants of defendant company took said car into their possession, and got the memorandum bill where it had been left. The regular way-bill of the freight in said car was, by mistake on the part of some servant of the Fitchburg company, delivered on said July 3 at the freight office of the Eastern railroad company, in Boston, and was not delivered to defendant company until July 11, 1876, when it was delivered at their general freight office in Boston.</p> <p>Said car was taken by defendant company, on said July 3, over the lino of their road to Portland, Maine, reaching there on the morning of July 4. It remained in Portland on the track of defendant company until July 12, 1876, and was not meanwhile offered to the Maine Central railroad company, the next connecting carrier. On July 12, 1876, the car was delivered to said Maine Central company by'defendant company, and on July 13 was brought through to Baugor, the place of its ultimate destination.</p> <p>It was also admitted that, by due course of transportation, the car would have arrived July 5, but did not in fact arrive until July 14, when, as plaintiff contended, the term of sales for that season had passed and the goods not worth more than forty per cent of their market price when ordered.</p> <p>In defense it was admitted that C. L. Hartwell, now, and in July, 1876, the general freight agent of said Fitchburg company, would testify that:</p> <p>“ The usual and customary method of transacting business between connecting lines of railroad, when freight is transported over such connecting lines, is this: When the freight has been carried over one road, the yardman, so called, at the terminus of that road delivers the car containing the fraght'to the yardman of the next connecting road, at the same time giving him a memorandum bill, so called, which bill shows the name of the person to whom the freight is directed, the place of its ultimate destination, and sometimes a specification of what the freight is, but which does not show the amount of charges upon the freight for carriage up to that point. It is also usual, upon the same day with the delivery of the freight and the memorandum bill, for the delivering road to make out at their freight office a regular way-bill of the freight, which regular way-bill shows, in addition to everything shown by the memorandum bill, the amount of the charges of the delivering road upon the freight, which charges include their charge for carriage over their own line and whatever charges they have paid or become responsible for for transportation over other roads over which the freight may have come, and deliver this way-bill at the freight office of the receiving road.</p> <p>“ According to the custom of doing business between connecting roads, whenever one road receives freight from another connecting road, they become responsible to the road from which they receive the freight for all charges they have for their own carriage and for back charges, whether paid by them or which they in their turn have become responsible for; and the last road, which carries the freight to place of ultimate destination, retains the freight until they have collected all these charges.</p> <p>“ In some cases the regular way-bill is not delivered on the same day with the freight, and in such cases the custom of the Fitchburg railroad company, of which I am, and in July, 1876, was, the general freight agent, is to receive the freight with the memorandum bill, and send it forward at once, and afterwards, as soon as received, sending on the regular way-bill. Such, too, has been the habit of the Boston & Maine railroad company in doing business with our road. There are, however, some roads which refuse to receive freight at all without the regular way-bills showing charges.</p> <p>“ In all cases, upon the receipt of freight, the company receiving it becomes responsible for all charges for previous transportation over connecting lines to the company from which they have received the freight.”</p> <p>It is also admitted that W. J. C. Kenney, now, and in July, 1876, the general freight agent of the defendant company, would testify exactly the same as Mr. Hartwell, both in relation to the general custom of doing business between connecting roads, and as to the particular custom of the Boston & Maine and Fitchburg companies, in cases where regular way-bill showing charges is not delivered on the same day with the freight. *</p> <p>It is also admitted that Payson Tucker, now, and in July, 1876, the superintendent of the Maine Central railroad company, would testify as follows:</p> <p>“The established rule of the Maine Central railroad company is, not to receive goods from connecting lines to be forwarded unless such goods are accompanied by a regular way-bill, or memorandum, giving name of consignee, destination and charges due. This rule was in full force and effect during the year 1876, and was adopted in accordance with orders from the Superintendent’s office.”</p> <p>If asked by plaintiff’s counsel, Mr. Tucker would also say that, if perishable goods were offered to his company without the regular way-bill accompanying, he thinks he should direct their being received and forwarded, if thereto particularly requested by the connecting road, and upon being fully protected from all liability resulting therefrom by the road offering the goods; but would also add that such cases did not often occur, and he did not remember any such actual case.</p> <p>It is also admitted that Robert A. McClntchy, now, and in July, 1876, the freight agent of the defendant company, in Portland, would testify that, as such agent of the defendant company in Portland, the place of connection of the two roads, the regulations of the Maine Central railroad company, testified to by superintendent Tucker, had been communicated to him; that the business between the two companies was done in accordance therewith ; and that in every case where he, in behalf of the defendant company, had offered freight to the Maine Central company without accompanying way-bill showing charges, the freight had been uniformly refused, and that in several cases he did so offer freight and have it refused.</p> <p>It is also admitted that Charles M. Chase, of Reading, Mass., would testify that, in July, 1876, he was in the employ of the defendant company, in Boston, as yard clerk in.the freight department. His duties as such clerk were to receive memoranda accompanying.freight received by defendant company from connecting .roads in Boston, to go to the freight office for the waybills of. the freight, and from the memoranda and way-bills to make out new memoranda to accompany the freight over the line of the defendant company. The memoranda made by him were known as conductors’ memoranda, and were to be passed in by conductors with the way-bills of freight at the freight office of the company, at the end of their route.</p> <p>He remembers a car load of mowing machines received from the'Fitchburg railroad company, in Boston, directed to D. M. Dunham, Bangor, Maine. He thinks the memorandum received by him with the car was dated July 1, 1876, and was received by him this same day the car was delivered to defendant company, viz: July 3,1876.. He knows the car was forwarded to Portland over defendants’ road on the same day it was received; there was a delay in the delivering of the way-bill of this car load of machines, arid he distinctly remembers of going during this delay to Mr. Saville, then the freight agent of the Fitchburg company, in Boston ; he had before going at least twice reported the non-delivery of this way-bill at defendant company’s freight office, to Charles E. Merritt, that he might write to the Fitchburg officials for it. When he personally went to Mr. Saville for it, Saville told him that the bill had not yet got round. He remembers this transaction from having looked into'the car, noticing the character. of the freight, and thinking it had better go forward at once. He personally attended to its being attached to that day’s train, and spoke to the conductor of the train about it. He also remembers it from the unusual delay in the delivery of the waybill, and from the matter being investigated soon after, when it was fresh.</p> <p>The memoranda sent by him with freight contain the name of place on defendants’ road from which the freight starts, the place thereon where it is to leave the road, the name of consignee, place of final destination, number of car, and description of its contents.</p> <p>It is also admitted that Charles E. Merritt, of Boston, would testify that, in July, 1876, he was employed in the general freight office of the defendant company, in Boston ; that, in the course of said employment, in said July, 1876, between the-time when a car load of mowing machines directed to D. M. Dunham, Bangor, Maine, was received by defendant company, from Fitchburg company, and the time when the way-bill of said freight was received by defendant company, he wrote two letters to the freight officials of the Fitchburg company, and sent them in the ordinary course of such business by messenger, inquiring about said way-bill, and requesting its delivery; that he has no personal knowledge of the delivery of the car, except as it was reported to him by the man in the yard at the time ; that he remembers sending these letters on account of the delivery of the way-bill, and because the matter was brought to his attention upon its investigation not long afterwards, when it was fresh.</p> <p>It was agreed that all the foregoing testimony, which it was admitted would be given by the various persons aforesaid, should be regarded as if actually given upon the stand, and that it may be used by either party in the case as proof actually taken on the stand, subject only to such legal objection as might be made to its admissibility if actually, offered on the stand, such objections to be made by either party at the trial or in the argument of their case, without prejudice on account of such objection not having been earlier made and herein noted.</p> <p>The ease was then withdrawn from the jury and continued on report, with the stipulation that, if the full court shall decide that the defendants had a legal right to detain the car in question until the Fitchburg railroad company had delivered the expense account of back charges, then a nonsuit is to be entered; otherwise, the case to be sent back for the jury to settle the facts, under such rules of law as may be laid down by the law court.</p> <p>cited Watts v. Bailey,, 49 N. Y. 464. St. John v. Van Santvoord, 6 Hill, 157. Farmers da Mechanics Bank v. Champlain Trans. Co., 23 Vt. 186. Williams v. Gilman, 3 Maine, 276. 1 Greenl. Ev., §§ 292, 294. 2 Redf. Railw. (5 ed.), § 184. Judson v. Western R. Corp. 4 Allen, 520, 526. ' Briggs v. Boston da L. R. R. Co., 6 Allen, 246. Story Bail., § 532. Bowler v. F. da N. A. Railway Co., 67 Maine, 395. Stevens v. Boston da Wore. R. R. Co., 8 Gray, 262, 266.</p>

On exceptions and motion to set aside the verdict as being against the law and evidence.- Assumpsit for supplies furnished to John G. Young and family, and Marshall F. Young and family, claimed, to be paupers of defendant town. The only question presented to be determined by the jury was a question of the paupers’ settlement. There was no pretense that the paupers’ settlement was in Norridgewock. The verdict was for the defendants.

On exceptions. Action oe dower. The premises were owned by the defendant bank, a corporation in New Hampshire, having no place of business, office or agent in Maine. The demandant offered in evidence a written demand of dower, duly and seasonably served upon the tenant in possession of the demanded premises under the defendants.

On motion to set aside the verdict as against evidence, the wmight of evidence and against law. Assumpsit by plaintiff for work by himself and oxen on the defendants’ railroad.

On report. Assumpsit to recover the sura which plaintiff says is now due liim from defendant town, as his share of the funds paid by the slate to defendant, under the equalization act of 1868, c. 225. Writ dated June 30, 1876.

<p> Equity. Pleading. Fradulent conveyance. Estoppel. </p> <p>In equity, the defendant may plead in bar to the whole bill or to a part only; and in the latter case he must answer to the remainder.</p> <p>A debtor’s conveyance of all his property to secure the future maintenance of himself and wife is fraudulent as against existing creditors, and voidable by them.</p> <p>The court will not hold such a conveyance fraudulent in part and good in part by reason of the fact that a small part of the consideration was the payment of some of the'grantor’s debts.</p> <p>To estop the plaintiff from setting up the fraud for the reason that he assented to the conveyance, the defendant must allege and prove, not only that the plaintiff, knowing the purpose for which the deed was to be given, assented to it, but that such assent induced the defendant to take it.</p>

On exceptions. The case is stated in the opinion. contended that the statute on which the complaint is founded was repealed by statute 1878, c. 75, § 28, and cited Pingree v. Snell, 42 Maine, 53. Ellis v. Page, 1 Pick. 43.

On exceptions. Complaint against William Cottle and Mark Thompson, made to the municipal court for the city of Bangor, wherein it is alleged by -one of the fish wardens that the defendants “did, on the 8th day of May, A. D. 1878, with force and arms, wilfully and maliciously violate the laws of the state of Maine, by dragging, hauling or drifting a net for the purpose of catching salmon in the Penobscot river, between the Bucksport R. R. Bridge, and the water works dam, said…

On exceptions. Case stated in the opinion. 1. The “premises” or “place” to be searched are not “described and specifically designated,” as required by art. 1, § 5, of the constitution of this state, and by R. S., c. 27, § 35. “ A certain wagon on the fair ground,” neither “ describes nor specifically designates” any “place” or “premises.” The wagon is not described in any manner. There might be a hundred wagons on the fair ground.

<p>Evidence. Contract — construction of.</p> <p>Parol evidence is inadmissible to vary or contradict a written agreement.</p> <p>Thus where the plaintiff leased his mill, house, stable and mill yard to the defendants’ testator “to manufacture all lumber of various kinds that he wants to during the year 1874, all for the rent of seventy-five cents per thousand for the lumber, and the waste wood while manufacturing said lumber.” Held: In an action to recover for the proceeds of waste wood arising from the testator’s lumber taken from a lot near the plaintiff’s mill and transported to and sawed at the testator’s mill several miles distant from the plaintiff, that it was not competent for the plaintiff to prove that, when the lease was made, the parties understood that the testator’s lot near the plaintiff’s mill was to be stripped and all the lumber sawed at the plaintiff’s.</p>

On report. The case is stated in the opinion. contended that no appeal from the decision of the magistrate was taken, therefore the only question for trial here, (if any), under the pleadings, is that of title. All other issues were determined by the magistrate, and his determination was final. Abbott v. Norton, 53 Maine, 158. R. S., c. 94, § 6. Copeland v. Bean, 9 Maine, 19. Plaintiff established his title by the introduction of his deed. Ib.

Bill in equity brought under the statute to obtain a construction of the last will of Sophia J. Suow, late of Brunswick, in this county. So much of the will as is essential to the decision appears in the opinion. cited Williamson v. Williamson, 6 Paige, c. 298. Cook v. Mealier, 42 Barb. 533, S. C. 36 N. Y. 76. Hillyards Estate, 5 Watts & Serg, 30. Augersteen v. Martin, Turner & Russ, 234. Hewett v. Morris, Turner & Russ, 241. Gibson v. Bott, 7 Ves. Jr., 89.

<p> Insolvency. Practice. </p> <p>Altor a petition has been made and proceedings have commenced and aro pending in the court of insolvency, a petitioning creditor cannot withdraw and havo his name stricken out of the petition without leave of the court. By leave of court creditors not originally petitioning may become parties to the proceedings already pending against an insolvent debtor.</p>

On exceptions. Indictment for incestuous fornication with defendant’s daughter, Etta Peterson. The government introduced one Ebenezer Chandler, who showed his commission, as an ordained minister of the gospel, authorizing him to solemnize marriages, during the pleasure of the governor, issued by Governor Kent in 1841, and said commission was introduced in evidence.

On report. Trespass for conversion of property belonging to the plaintiff’s testal or. The facts sufficiently appear in the opinion. The court to draw such inferences as a jury might, and enter judgment in accordance with the law of the case. And if the plaintiff is entitled to recover, to assess the damages, or settle by their opinion the principles on which the same shall be assessed by the judge at nisiprius. cited 1 Wat. Tres. § 522. Miller v. Baker, 1 Met. 27-31.

On report. Assumpsit for damages sustained under a written agreement signed by the'defend ant dated January 24, 1876., Writ dated September 17, 1878. Plea, general issue.

On report. Debt, on a six months’ bond given by- the defendants to procure the release of Charles F. Collins — one of the defendants — from arrest on an execution issued on a judgment in favor of the plaintiff against Collins. The defendant was defaulted. The sureties defended upon the ground of their discharge by the plaintiff by virtue of the following receipt, dated, “Houlton, September 27,1877.

<p>On pacts agreed.</p> <p>Action to recover dower in certain land, one undivided half of which the demandant’s husband was seized during their coverture.</p> <p>It was agreed that the issue joined shall be sufficient for the raising and deciding of all questions of law which may arise in the case before full court. That the- plaintiff was lawfully married to George Blake, July 20,1869, and that plaintiff was divorced from him as alleged in the writ. George Blake was the owner in fee of both moieties of land described in writ for many years and up tQ December 4, 1868, at which time he conveyed one undivided half in common of the same, to defendant, Charles Walker, by warrantee deed, with usual covenants; said deed to Walker dated December 4, 1868, and duly recorded.</p> <p>On the same 4th day of December, 1868, said George Blake gave said Walker a bond for the conveyance of the other undivided half of the said real estate on condition to be performed in ten years. Said Blake has made no other conveyance of said land. The said Walker has occupied and carried on said land, being a farm, ever since said deed and bond to him, as is customary in the cultivation and management of farms, paying taxes thereon, said occupancy being by consent of said Blake, paying said Blake no rent nor promising to pay rent except so far as the payments on said bond may be regarded as rent. That plaintiff made a demand upon defendant for dower on the 11th day of December, 1877. No objection is made to the form of notice or the mode of its service. For the last four years next preceding this term, September, 1878, said Blake has resided openly and continually in said county of Piscataquis, including the time when said notice was given and writ made and served. For more than one-half of said four years this last passed, said Blake has lived with said defendant on said farm and land; said Blake was so residing with Walker when said demand was made on Walker. Said Blake is and has been the father-in-law of said Walker for about eighteen years. Since December 4, 1868, said Blake has not exercised any control upon the management of said farm. The plaintiff has never released her dower on said premises, nor barred herself thereof unless she did so by the paper, a copy of which marked “C” is hereto attached, which paper was executed by her and delivered to said Blake before her divorce from him. Since said divorce and before said demand upon Walker, plaintiff’s name has been legally changed from Emetine L. Blake to Emetine L. Cook. Said Walker lias never conveyed any of the estate as aforesaid conveyed to him by said Blake.</p> <p>The parties to said action agreed to submit the same to the full court upon the foregoing statement of facts, and if the court are of opinion that the plaintiff is entitled to dower as claimed, then they are to give such direction as is proper, otherwise plaintiff to be nonsuited.</p>

On report. The three actions were reported for the law court to determine the title between the parties. The first two actions are trespass quare clausum. Davis and Shaw both claim title under deed from Francis 0. Dudley to Parker D. Shaw, dated November 27, 1868, Shaw having subsequently conveyed a portion of the premises to Davis. Francis 0. Dudley was born April 17, 1848, and therefore was a minor .at the date of his deed to Shaw.

On exceptions. Trespass against the principal defendant for an assault and battery. The presiding justice ruled that this kind of action could not be commenced by trustee process; and the plaintiff alleged exceptions. on the construction of the statute argued as follows : “All personal actions may be commenced by trustee process.

Complaint for flowage inserted in a writ of attachment entered at the October term A. I). 1878. Whereupon at said term the respondents severally filed demurrers to said declaration and complaint which were joined by the plaintiff and complainant, overruled by the court, and said declaration and complaint adjudged good. The respondents alleged exceptions. The facts are sufficiently stated in the opinion. cited Nelson v. Butter-field, 21 Maine, 220. Walcott Manu.

On report. The court to enter such judgment as shall be in accordance with the law of the case. The material facts appear in the opinion.

On exceptions. The facts appear in the opinion. Every court has power over its own records and proceedings to make them conform to its own sense of justice and truth, so long as they, remain’ incomplete and until final judgment has been entered. Lothrop v. Page, 26 Maine, 119. Woodcock v. Parker, 35 Maine, 138. Lewis v. Ross, 37 Maine, 230, and cases there cited. Sawtelle, pet’r, 6 Pick., 110. West v. Jordan, 62 Maine, 48é.

On facts agreed. Replevin for a tliree-year-old colt, described in the writ. In 1874 defendant owned a certain stallion kept for breeding purposes, called “Mohawk.” Sai d stallion was duly registered, as required by public laws 1873, c. 135.

On exceptions. Assumpsit on a promissory note for the payment of $88.75, dated at Boston, Mass., February 3, 1877, payable on time to William Smith or order, at the Sandy JEtiver National Bank, Farmington, Maine, and indorsed by Smith to Maverick National Bank, Boston, and by that bank to the plaintiffs. The note was duly protested.

Bill in equity heard on bill, answers and proof. The material allegations are in the opinion.

On report. Assumpsit on a promissory note of the following tenor : “Monmouth, June 4, 1875. For value received as treasurer of the town of Monmouth, I promise to pay Miss Elenora Parsons, or order, nine hundred and fifty dollars, in one year from date with interest. (Signed) William G. Brown, Treasurer.” On the back of the note were two indorsements of $57, eachs being the interest for two years.

<p> Pleading. Joinder of counts in debt. Estoppel. </p> <p>A count in debt by an indorsee against tbe maker of a'negotiable promissory note, may be joined with a count in debt on a judgment.</p> <p>Tbe defendant recovered a judgment against tbe plaintiff for tbe sum of §9.01 debt. Three years afterwards be sued on tbe judgment and joined a count on a promissory note given by tbe plaintiff to a third person “or bearer” for one dollar and fifty cents with interest and recovered a judgment on .both counts. In an action for false imprisonment ; Held, that tbe execution ■ issued on the latter judgment properly ran against tbe body of tbe judgment debtor.</p> <p>Also held that tbe plaintiff was estopped by tbe latter judgment from showing that tbe judgment creditor procured tbe note in violation of tbe provisions of E. S., c. 122, § 12 as amended by Stat. 1878, c. 57.</p>

On report. Bill in equity, against Elisha Pickering, guardian of Anna F. Pickering, a minor daughter of the other defendant, and Anna F. Pickering the minor.

On report. Forcible entry and detainer transferred from the municipal court for the town of Brunswick. Date of writ July 30, 1877. Plea, the general issue with brief statement of title in one Sarah E. Holbrook under whom the defendant claims the premises as tenant. The case and facts are sufficiently stated in the opinion.

On exceptions, and motion to set aside the verdict. Assumpsit for price of a mowing machine, which the plaintiff alleges he sold and delivered to the defendant July 20, 1871. Writ dated July 25, 1876. Plea, the general issue. The defendant denied the sale and purchase of the machine, claiming that he hired or borrowed it. The defendant kept the machine in his possession from July 20, 1871, to July 25, 1876, when he returned it on the same day the writ was served upon him.

<p>Assumpsit brought to recover the amount of two promissory notes, dated December 17, 1875, given by defendant to plaintiff. •The consideration for said notes with other notes was a bond in common form, dated December 17, 1875, to convey certain real estate described therein, when said notes were paid according to their tenor. Defendant took possession of said premises when said notes and bond were given and was in possession at the time of the ñre.</p> <p>In the fall of 1876 the buildings on said premises were destroyed by fire. Defendant claims that by reason of the loss of said buildings, the consideration for said notes has failed and that this suit cannot be maintained. It is agreed that if the law court consider the grounds assigned as any defense in this suit the same is to come back for trial to this court, otherwise the defendant is to be defaulted.</p> <p>cited Smith v. Sinclair, 15 Mass. 171. Beed v. Cummings, 2 Maine, .82. Manning v. Brown, 10 Maine, 49. Little v. Thurston, 58 Maine, 86. Chitty Con. (6 ed.) 734.</p> <p>cited Wyman v. Ueald, 17 Maine, 829. Coburn v. Ilaley, 57 Maine, 346. Little v. Thurston, supra. Knapp v. Lee, 3 Pick. 459.</p>

On kxcisptions to the rulings of the superior court, for the county of Kennebec, and motion to set aside the verdict. Assumpsit against defendants, as owners of the steamer “Star of the East,” and as common carriers by water from Boston to Hallowell, for loss and damage of 19 packages of household goods delivered to them for carriage December 9, 1873. Date of writ February 6, 1877, returnable to the March term 1877. Plea, the general issue.

* On exceptions, from the rulings of the superior court for Kennebec county. Action of debt to recover unpaid taxes for the years 1873-4-5, according to the account annexed, the balance alleged to be due being $23.88. Date of writ August 19, 1878. The defendant filed a general demurrer to the declaration which was joined. The presiding judge sustained the demurrer and adjudged the declaration bad. To which ruling the plaintiff alleged exceptions.

On motion to set aside the verdict as being against law and evidence. Case, for an injury caused by a defective highway. The facts appear in the opinion. cited Rice v. Montpelier, 19 Yt. 470. Angelí Highways, § 291. Winn v. Lowell, 1 Allen, 177. Macomber v. Taunton, 100 Mass. 255. Davenport v. Buckman, 37 N. Y. 573. Kellogg v. Curtis, 65 Maine, 62. Gavett v. R. Road, 16 Gray, 501.

On exceptions. Assumpsit for money had and received. Plea, the general issue. Held: with the other members of the court, that upon the authorities an action would lie against the executor in his individual'capacity only.

On exceptions, from tbe superior court of Kennebec county. Assumpsit, on account annexed for professional services. Writ dated March 7, 1879. Plea the general issue.

The case is presented to the law court, on the following papers —under R. S., c. 77, § 13.

On exceptions. Indictment against respondent for assault upon one John Flood with intent to kill and murder. Tried October T., 1877. Plea, not guilty. Yerdict, guilty. Exceptions were then filed and allowed, and the case sent to the law court. February 7, 1879, the following order was sent down from the law court: “Exceptions overruled.

<p> Penobscot river. Boom privileges. Damages. Sheriff’s jury. Challenge. Exceptions. </p> <p>Owners of sliores, on the Penobscot river, used for boom privileges are entitled to compensation for any loss, injury or diminution of value occasioned by flowage by the dam erected by respondents under legislative authority. But they are not entitled to compensation for the possible loss of drift wood which may never reach their shores, and to which they have no title.</p> <p>The right of peremptory challenge does not exist when the question of damages is to be determined by a sheriff’s jury.</p> <p>When evidence manifestly immaterial has been admitted, and it does not appear that it could in any way have prejudiced the excepting party, the verdict will not be disturbed.</p>

On report. This action was originally entered before a trial justice and the writ, alleging and declaring defendant to be an executor in his own wrong, was framed to attach the goods or estate of the said Edwin J. Thayer, the said alleged executor de son tort. At the return day the defendant appeared and filed a motion to abate, because the officer’s return did not show any attachment of property.

On exceptions. Writ of entry, brought on a mortgage made by John S. French, to the plaintiff, Ebenezer It. Holmes, dated May 13, 1857.

On report, from the superior court in and for the county of Cumberland. Assumpsit on account annexed for 11125, for services from April 1, 1876, to January 1, 1877, at $1500 per year. » The facts sufficiently appear in the opinion. The law will allow a claim for services of a partner where there is a special agreement to that effect. King v. Hamilton, 16 111. 190.

<p> Launching. Lien. Repairs and construction. </p> <p>The launching of a vessel is a definite period, and one well understood as applied in shipbuilding; and it is the only period from which the four days can be computed under the first clause of E. S., c. 91, § 7.</p> <p>When work and materials are furnished for repairs and not for the construction of a vessel, the hen under the first clause of E. S., c. 91, § 7, does not attach.</p> <p>The test to be applied in distinguishing between a new vessel and one repaired does not depend upon the comparative amount of new and, old material used.</p> <p>Nor is it necessary that the dimensions or burden should remain unchanged to constitute a repaired vessel.</p> <p>The real test is whether the existence and identity of the vessel remain.</p>

On report. Assumpsit for pauper supplies furnished by plaintiff town to Frank P. Staples in May, 1877. Writ dated January, 1878. Plea, the general issue. The facts sufficiently appear in the opinion. The court to order a nonsuit, or default as the law and evidence may warrant. cited Yeazie v. Machias, 49 Maine, 105. Sumner .v. Sebee, 3 Maine, 223. Garland v. Dover, 19 Id. 441. Bangor v. Readfield, 32 Id. 60. Oldtown v. Falmouth, 40 Id. 106. Clinton v. York, 26 Id. 167.

On report. Assumpsit for pauper supplies furnished to one I. J. Withie. The facts sufficiently appear in the opinion. upon the point of supplies furnished the pauper while in jail, cited R. S., 1840, c. 32, § 48. E. Sudbury v. Sudbury, 12 Pick. 1. Norridgewock v. Solon, 49 Maine, 385.

On pacts agreed. Assumpsit for rent. Certain premises situated in Augusta were mortgaged by a prior owner to the Augusta Savings Bank by a valid 'mortgage duly recorded. The plaintiff became the owner of the equity of redemption. The mortgage was foreclosed by publication, duly recorded, but the equity of redemption had not expired February 17, 1877, when the plaintiff let the premises to the defendant as a tenant at will for rent of $50 per year.

<p>On exceptions.</p> <p>Indictment containing three counts, the first for an assault with intent to murder, the second for an assault with intent to kill, and the third for assault and battery committed on Andrew T. Tuck.</p> <p>During the trial the county attorney asked Dr. P. Dyer, a regular physician of long practice, a government witness, if such wounds (as were claimed to have been made in this case upon the head with a hatchet,) were dangerous to life; and the witness answered that “we always consider blows upon the head dangerous.” The witness was then asked, “From what does the danger arise.” The question was seasonably objected to, but the objection was overruled, and the witness allowed to answer.</p> <p>Said Tuck was called by the state and on cross-examination was asked if he testified to certain things before the trial justice, but, objection being made, it was excluded.</p> <p>Among other instructions given the jury the court instructed them in this manner : “You have a right to infer from the nature of the act that he (the defendant) intended to take life, if the means used were calculated to effect that object. Are you satisfied that it was a deadly weapon, and was it used in a manner calculated to cause death ?”</p> <p>To which instructions and adjudications, (the verdict being guilty under the second count in the indictment,) the respondent alleged exceptions.</p>

On exceptions. Joseph Titcomb & W. L. Thompson had for many years been engaged together in ship building in Kennebunk, and were reputed to be wealthy.

On exceptions. On October 28 and November 6, 1878, the partnership of Joseph Titcomb and Wm. L. Thompson, as well as they individually, were duly adjudged insolvent by the court of insolvency, in and for the county of Y ork, on due proceedings had.

On exceptions, from decision of judge of the superior court of Kennebec county. Assumpsit upon account annexed. Writ dated February 24,1879. Plea, the general issue. Tried without the intervention of a jury, and the parties submitted to the justice of said superior court the following agreed statement: “The plaintiff and defendant are husband and wife.

Exceptions from superior court of Kennebec county. Replevin. Writ dated February 11, 1879. Flea, the general issue. Submitted to the justice of said court under same agreed statement of facts and on same conditions as in Helen E. Ilobbs v. Geo. H. Hobbs, Ente, who decided that coverture was a bar to the maintenance of the action, and thereupon entered a nonsuit. The plaintiff alleged exceptions.

Bill in equity, inserted in writ to redeem real estate from mortgage, heard on bill, answer and proof. Writ dated December 20, 1878.

On report. Assumpsit upon an order drawn and signed by the selectmen of tbe defendant town, of the following tenor : “Order No. 39. To Benjamin Brown, treasurer of the town of Grafton, or his successor in that office. Pay to Wm. F. Hemmingway twenty-five dollars — it being his portion of equalization bounty. Dated at Grafton the 14th day of March, A. D., 1872.” There was also a count for money had and received. Writ dated July 24,1876.

On exceptions. Assumpsit, to recover the amount paid by the plaintiff town, for the support of the defendant, a resident of said town, at the hospital for the insane at Augusta, Maine, where he had been duly committed, and for whose support the plaintiffs were in the first instance liable.

<p>On exceptions, from superior court for Cumberland county. Indictment alleging “that Sally Morrissey of Portland, single woman, on at Portland . . . being pregnant with a male child, did then and there bring forth the said male child alive of the body of her the said Sally Morrissey, alone and in secret, which said male child so being born alive, was by the laws of said state a bastard. And that afterwards, to wit, on the same seventeenth day of October, in the year of our Lord one thousand eight hundred and seventy-eight, she the said Sally Morrissey with force and arms, at Portland, in said county of Cumberland, in and upon the said male child in the peace of said state then and there being, feloniously, wilfully and of her malice aforethought, did make an assault, and the said male child, she the said Sally Morrissey, did then and there, feloniously, wilfully and of her malice aforethought, kill and murder, against the peace of said state and contrary to the form of the statute in such case made and provided.”</p> <p>“And the jurors aforesaid upon their oaths aforesaid do further present that said Sally Morrissey otherwise known by the name of Sarah Welch, single woman, on the seventeenth day of October in the year of our Lord, one thousand eight hundred and seventy-eight, at Portland, in said county of Cumberland, with force and arms in and upon an infant child by name to said jurors unknown, in the peace of said state, then and there being, feloniously, wilfully and of her malice aforethought, did make an assault, and the said infant child then and there feloniously, wilfully and of her malice aforethought, did kill and murder against the peace of said state, and contrary to the form of the statute in such case made and provided.”</p> <p>A general demurrer to the indictment was filed by the respondent, joinder made by the state, the demurrer overruled, and the indictment adjudged good; whereupon the respondent alleged exceptions.</p> <p>This is an indictment for murder containing two counts, the first alleging the secret delivery and murder of a bastard child ; the second alleging simply the murder of an infant child, not stating the sex. The accused demurred. Neither the general verdict of a jury nor the plea of guilty are sufficient to indicate the degree of murder. /Slate v. Cleveland, 58 Maine, 564.</p> <p>The Mass, statute had no such provision as our own when CbeenY. Commonwealth, 12 Allen, 155, was decided. Thefactthat the punishment for murder in the first and second degree is now the same, does not deprive the accused of the right to have the degree of his crime judicially determined.</p> <p>Neither count sets out the manner or means of the death, and neither follows the statute. K. S., c. 134, § 7.</p> <p>Both counts contain an allegation of an assault which was not a necessary allegation under our statute. In all the old precedents which have the element of violence an allegation of an assault is included in the other allegations. 2 Bish. Crim. Proc. § 516, § 538. 1 Whar. Prec. (229.)</p> <p>But where no violence is used as in cases of poisoning, the allegation of an assault is omitted. Id. (125.) 2 Bishop’s Crim. Proc. § 553-4.</p> <p>In the case at bar, the prosecuting officer having departed from the simple allegation allowed by statute, and having alleged an assault as the means of the killing, was bound to give the particulars thereof. The accused could not have been convicted of murder by poison, under this indictment, because the language of the indictment negatives a killing by any means except by vio- ° fence, nor could the accused have been convicted of murder by violence because the pleader having alleged an assault generally and no more, could not be allowed to prove particular acts of violence.</p> <p>Until the decision in Com. v. Webster, 5 Cush. 295, it was the general opinion of the courts that the manner and means must be set out. That case merely decides that where manner and means are unknown they may be omitted if the indictment states that they are unknown. The statute of Maine enacted in 1865, (B. S., c. 134, § 7,) allows this omission in all cases. State v. Yerrill, 54 Maine, 408.</p> <p>But does not preclude the use of the old precedents.</p> <p>In State v. Yerrill, it was not contended that the indictment did not conform to the statute (p. 413).</p> <p>In our practice as also under the common law, it is not necessary to prove that the death was occasioned by the instrument described, but it is sufficient if shown to have been caused by an instrument of similar character. 2 Arch. Crim. Bree. 207. State v.Smith, 32 Maine, 373.</p> <p>The second count alleges the murder of an infant child, whose name is unknown. The sex of the child is not stated, nor does the indictment state that the sex was unknown. Nor, indeed, can we discover any reason for omitting to state the sex. It is believed that no precedent can be found in which both name and sex have been omitted. The greatest practicable particularity is required in designating the person killed or injured.</p> <p>In all indictments for the murder of children which we can find, the sex is stated. It. v. Mary, 2 M. & Bob., 38. It. v. Hides, 2 lb. 302. See also cases, 1 Whar. Prec. (2.)</p>

On report. Trespass to recover damages, sustained by reason of the construction of a road or way upon and across the plaintiffs’ land, by the city of Lewiston. It is admitted that the title to said land was, at the time said trespass is alleged to have been committed, and now is, in Lucy A. King, one of the plaintiffs, and that Moses King, Jr., is her husband, and as such joins with her in this suit.

On exceptions, from the superior court for Cumberland county. Assumpsit on account annexed for $250.82. Writ dated February 20,1877, entered March term, 1877. At the October term 1878, defendant suggested his insolvency, filed a motion setting forth said insolvency, and moved that said suit be stayed to await the result of said insolvency proceedings.

Bill in equity, inserted in writ dated March 30, 1872, and heard on bill, answer and proof. The facts sufficiently appear in the opinion.

<p> Bond. Pleading. Evidence. Variance. </p> <p>In an action of debt against two of tbe three obligors on a joint and several bojad, the bond is admissible to sustain the issue on the part of the plaintiff raised by the defendants’ several pleas of non est factum.</p> <p>In such case there is no variance, in point of law, between the deed declared on and that proved. It is still the joint deed of the parties sued, although others have joined in it.</p>

On report. Error to reverse a judgment, in a bastardy case under K. S., c. 97, recovered by the defendant in error against the present plaintiff in the superior court for the county of Kennebec at the September term thereof 1878. The facts sufficiently appear in the opinion.

On report. Assumpsit by plaintiff as deputy sheriff against defendants on a receipt |riveu by them to him for certain logs attached on certain lien suits, one by John Sheridan, and sixteen by other parties, against Daniel E. Ireland and certain logs.

On report. Writ of entry dated February 6, 1878. Plea nul disseizin with brief statement. 1. The defendant- says that plaintiff, never at any time had title to or was seized of the demanded premises, but that the same were during the times mentioned in plaintiff’s writ, ever since, and still are owned by one William Gould, or by his heirs. 2.

<p>Treasurer’s bond — breach of.</p> <p>An omission on the part of a town treasurer to render the detailed report prescribed inR. S., c. 3, § 31, constitutes a broach of his'Official hond.</p> <p>A neglect or refusal of a town treasurer to render an account of the state of the finances of his town and exhibit all the books and accounts pertaining to Ms office to the municipal officers thereof whenever required, constitutes a breach of his official bond.</p> <p>A neglect or refusal of a town treasurer to pay town orders presented to him for payment when he has funds of the town in Mg, hands, constitutes a breach of his official bond.</p> <p>A town treasurer neglected and refused to account for town funds in Ms hands when required by the municipal officers as provided in E. S., c. 6, § 152, and refused to pay town orders duly presented, when in fact he had in his hands $506 of the town’s funds received in the ordinary way from the collection of taxes. In an action upon the treasurer’s bond, Held: That the destruction of such money thus unlawfully detained, by an accidental burning of his house containing it, two weeks after his office expired, is no defense ; noris the unauthorized setting apart of such money for the equalization fund.</p>

Pacts agreed. Action to recover of defendant the expenses of supporting Mrs. Nancy Bridgham, a pauper, whose settlement is alleged to have been in defendant town during the time supplies were furnished. Writ dated August 1, 1878. Plea, the general issue.

On exceptions. Action of assumpsit originally made returnable before James S. Holmes, esquire, a trial justice, residing and holding court in Foxcroft, in said county, and afterwards entered and tried before Elihu B. Averill, esquire, a trial justice in and for said county, residing in Dover, but holding court in said Foxcroft, where said writ was originally made returnable, and comes into this court upon appeal by the defendant.

On pacts agreed. Action of trespass, and for false imprisonment, submitted upon the following agreed statement of facts : On the eighteenth day of April, A. D. 1879, the plaintiff was arrested and held for trial upon a warrant issued-by the defendant as judge of the police court of the city of Belfast. Said court was established by virtue of private and special laws 1850, c. 363,' §§ 11,12,13, 14, 15.

On exceptions. The defendant was indicted for manslaughter, in causing the death of one George Morton.

Bill in equity, heard on bill and answer. The complainant alleges in substance that, at the December term 1877, he recovered judgment on his original bill, declaring a certain deposit, tbe subject matter of His original bill, then remaining in the custody of the Saco and Biddeford savings institution, made by Clara Boynton in her life time with the bank book thereof, to be subject to a pledge in the right of the complainant as security to him for the debt of tli e intestate…

On exceptions, to the rulings of Whitehouse, justice of the superior court in and for the county of Kennebec. Trespass to recover damages alleged to,have been sustained by being arrested and imprisoned by the defendant. It was admitted that the defendant was a deputy sheriff of the county, duly qualified.

On exceptions. Replevin for a horse. The presiding justice instructed the jury, inter alia, as follows : “Now you see that the plaintiff and Wheeler who are the witnesses to this material part of the case, are directly at issue in regard to the fact. There is another witness who was present and a party acting in that transaction, and you have bis evidence, and lie is Mr. Mitchell the attorney, who drew the bill of sale.

On report. Trover to recover tlie value of certain personal property, situated and being in and upon township No. 39, Hancock county, and particularly upon that portion of said township, excepting the western mile strip, viz: The extract works and buildings, the circular saw mill and all tools and machinery in said works and buildings, and all staves and barrel machinery and tools, and the stable sheds and dwelling-house therein, all of the value of nine thousand dollars…

On motion and exceptions. Assumpsit to recover $250.29, for pauper supplies furnished Eliphaz Keizer, a pauper. No question was made in relation to the supplies or legal notice and denial.

Assumpsit to recover $200 which the plaintiff alleged he bet with one Howes that Tilden would be elected president of the H. S. in 1876. The plaintiff testified in substance that he made the bet on election day and deposited the money in the hands of the defendant ; that on the following fourth day of March he demanded the money of the defendant, who refused to deliver it up ; and that he forbade him paying over to Howes.

Facts agreed. Petition of the comity attorney of Penobscot county, for and in behalf of said county alleging that, in the year 1877, a large number of petitions, (most of them by the city of Bangor, a few by the land owners) were presented to the connly commissioners of said county, pursuant to c. 168, special laws of 1875, as amended by c. 260, special laws of 1876, praying said commissioners to determine the damage, if any, which the land owners had suffered by flowago or…

<p>Facts agreed.</p> <p>Assumpsit upon an account annexed for “boarding Joseph Willett (pauper) from January 1, 1875, to May 1, 1875, $48.00” and “interest tp date of writ $7.76.” — $55.76.</p> <p>The writ also contains the common money count for $60, with specification, or bill of particulars, that “this (money) count is founded wholly upon the matters alleged in the preceding count.” Date of writ, January 13, 1878. “The following statement of facts is agreed upon, and said action is hereby referred to the decision and finding of the court. 1st. Said Willett was chargeable upon said town as a pauper when maintained by'said plaintiff. 2d. Said town was properly and seasonably notified by said plaintiff to provide for said Willett or remove him. 3d. Fred Thurlough, of said‘Fort Fairfield, was the proper and legal agent of said town to provide for, maintain, remove or manage said Willett. 4th. If the town is liable at all, it is liable for the board of said Willett from January 1, 1876, to May 1, 1876 — 16 weeks at $1.50 per week, and costs of court. 5th. When notified by said plaintiff to remove said Willett, and provide for him elsewhere, said Thurlough replied to said plaintiff “send the boy to me ; I will take care of him, or find a place for him.” The plaintiff said, “no, I would not carry him there for fifty dollars.” Said plaintiff did not send the boy as required, but kept him. Said boy was then well, ten years of age or thereabouts, and the distance from the plaintiff’s to Thnrlough’s about five and one half miles. The question presented being whether under the circumstances? said defendant town, or their agent Thurlongh, was by law obliged to go and remove the boy, or whether the plaintiff should have required the boy to leave his house, or, if he remained, should have maintained him at his own charge and expense.”</p>

On exceptions. The bastardy complaint was entered in the supreme judicial court held for this county, at the January term, 1877 ; the respondent had given bond as provided by statute, and at the January term of said court, 1877, said case was referred by agreement of parties, to James D. Lamson, J. O. Whitney and F. W. Banan, as referees, under a rule of court, and after giving proper notice required by law, said referees, at the time and place specified in said notice,…

On exceptions, by the claimant to the rulings of the court charging the trustee. The controversy was between the plaintiff and claimant (K. S., e. 86, § 32,) and was submitted to the’presiding justice without the intervention of a jury, the principal defendant having no apparent interest.

On report. Appeal from the decree.of the judge of probate of York county dismissing the petition of Sally Hanson, exec utrix of the last will and testament of William B. Hanson, late of Lyman, in said county, deceased, testate, for license to sell and convey certain real estate of said testator for the payment of debts and legacies, and expenses of administration to a certain amount. The true' construction of said will is in issue.

<p>Wlien a petition in insolvency lias been served and placed on the files of the court and the proceedings have been subsequently dismissed, such petition cannot bo withdrawn from the files, and re-issued and made the basis of subsequent proceedings.</p>

JBill in equity. The petitioners allege that they are inhabitants of the town of Farmington, and residents in that part of said town included within the limits of the… Held: are in strict conformity to the powers and authority conferred upon them by the legislature of this state; that they have acted and propose to act only under the provisions of law; they refer to chapters 291 and 292 of special laws of 1870, and chapter 392 of special laws of 1860, and other laws.

On exceptions. Writ or entry. The only question raised was the sufficiency of the following declaration: “Wherein the plaintiff demands against the said Calvin Record the possession of the following described real estate situate in Auburn in said county of Androscoggin and bounded and described as follows, to wit: a certain lot or parcel of land and the buildings thereon standing, bounded on the north by Academy street, in said Auburn ; on the east by the Fuller lot…

On exceptions and motion to set aside the verdict as against evidence. Action to recover upon a policy of fire insurance, on the plaintiff’s buildings, issued by the defendant company, October 6,18TT. Plea general issue. The plaintiff introduced the policy declared upon, and it was admitted by the defendant that proper and seasonable proof of loss was made by the plaintiff, and that she owned the property.

<p>On FACTS AGREED.</p> <p>Action of debt on bond given by defendants as follows :</p> <p>“Know all men by these presents, that we, O. B. Plummer and M. R C. Withers, of Bangor, Maine, are held and firmly bound unto the Scottish Commercial Insurance company of Glasgow, Scotland, in the sum of one thousand dollars lawful money of the United States of America, to be paid to the said the Scottish Commercial Insurance company, for which payment well and truly to be made we bind our heirs, executors and administrators firmly by these presents. Sealed with our seals, dated at Bangor the 10th day of August, one thousand eight hundred and seventy-four. The condition of this obligation is such, that if the above bounden O. B. Plummer shall faithfully perform his duties as agent of the said the Scottish Commercial Insurance company for Bangor, Maine, and shall duly and punctually pay over to the said the Scottish Commercial Insurance company, or its managers in New York, the premiums and moneys collected by him for insurance of risks taken by the said the Scottish Commercial Insurance company, then the above obligation to be void, otherwise to remain in full force and virtue. It being understood and this obligation is received by the said company upon the express condition that it is to be construed as to the liabilities of the obligor thereunder in the same manner to all intents and purposes as if it had been made in the state of New York.”</p> <p>The writ is dated December 17, 1878. Plea, non est factum, with brief statement that defendants have well and truly kept and performed everything in the condition of said supposed writing obligatory mentioned on their part to be performed and kept, according to the legal effect and intention of said condition.</p> <p>It was agreed that said bond was duly executed by the defendants and delivered to the plaintiff'company at the time of the date thereof.</p> <p>That at tlie time of such execution and delivery the defendant Plummer was a duly appointed agent of the plaintiff company and so continued until September 5, 1877, but was never appointed or re-appointed as such agent on or after August 10, 1875.</p> <p>That after the giving of said bond, and before the first day of August, 1877, but after August 10th, 1876, said defendant Plummer as such agent collected premiums and moneys belonging to said company to the amount of $180.38, which he has not paid to said company, although demand was made therefor on September 5, 1877.</p> <p>Upon these facts the law court is to render judgment according to law.</p> <p>I. That the plaintiff company is a foreign insurance company, and are prohibited from transacting insurance business in this state without license therefor from the insurance commissioner, and that the case shows no such license. E. S., c. 49, § 49.</p> <p>That the bond, being given for the transaction of insurance business in Maine, and in contravention of this statute, was void.</p> <p>II. The case does not find that Plummer was licensed to act as such agent; and'without such license, his acts as such agent were not only forbidden by law, but made a criminal offense. E. S., c. 50, § 49.</p> <p>His license for 1874 expired on the last day of June, 1875, by statute limitation. He then ceased to be agent; there is no pretense that if he had been licensed for 1874 his license was renewed, that he got a new license for 1875, or any subsequent year. The bond was dated August 15, 1874, and given under the license of 1874, and necessarily expired with the license. Counsel referred to E. S., c. 3, § 10 ; c. 86, § 43 ; c. 80, § 1. In all these cases the bond ceases when the bond ends.</p> <p>III. The alleged breach of the bond did not occur till after August 10, 1876, and however his liability to plaintiff for money so collected in another form of action, he cannot be held liable in this action on the bond, because the bond had previously expired.</p> <p>IY. The agreed statement of facts do not show what the laws of New York are, or that they differ from those of this state. The bond being made in this state must be construed by the laws thereof.</p>

Facts agreed. Appeal from a decree of the judge of probate for the county of Knox, disallowing the will of Arehelaus Smalley, late of St. George in said county.

To the Honorable Justices of the Supreme Judicial Court of Maine, now held at Fryeburg, in and for the county of Oxford, on the first Tuesday of December, 1879.