Volume 71 — Maine Reports

ON exceptions and motion to set aside the verdict. Assumpsit for hauling and driving 899,252 feet spruce and pine logs, winter of 1875, at $4.50, $4046.63. Plea, general issue, and a,n account in set off amounting to $3026.69.

<p>On MOTION to set aside the verdict.</p> <p>This was an action on the case against an innkeeper for not safely keeping the plaintiff’s cow, and by reason of the negligence-of the defendant the cow was cast, hooked and died. Plea was-general issue.</p> <p>At the trial there was evidence tending to show that plaintiff’s husband was driving the cow, which was injured, and other cattle-from a place above Moose River to Moscow, and put up at the-defendant’s inn at Jackmantown for the night in June, 1876.. The cattle were put into the yard with the defendant’s cows fertile night. The next morning the injured cow was found cast under the barn, in the basement, the doors to which, leading; from the yard, were open; and after a few days she was killed because of her injuries.</p> <p>The verdict was for plaintiff for $39.20, and the defendant moved to set it aside as against evidence and the weight of’ evidence and the law and evidence.</p> <p>contended that the verdict was; against the law and evidence, and cited: R S'., c. 27, § 5; 2 Parsons on Contracts, 154; Hawley v. Smith, 25 Wend. 642; Albin v. Presby, 8 N. H. 408; Healey v. Gray, 68 Maine,. 489.</p>

Ox exceptions from the superior court, Kennebec county. Writ was dated October 1, 1877. Verdict was for plaintiff, and the defendant alleged exceptions. The exceptions allege the following to have been a part of the testimony at the trial and the ruling of the court thereon : Gross interrogatories. Question. — Did yrou alter a colt for Melvin Gordon about that time? Ansvcer. — Yes, sir, I did. Question. — Did he die? Answer.— lie did.

On report. The facts appear in the opinion. contended that if the deed offered in evidence by the defendant was made for the particular purpose of taking the place of an old deed of anterior date to the mortgage, upon which the action was based, it would be fraudulent to use it to defeat and discharge the mortgage.

ON EXCEPTIONS. Trespass. Tbe writ was dated October 1, 1878. The command in the writ was to arrest the defendant, and it was not framed to attach the goods and estate of the defendant, and for want thereof to take the body, &c. Tbe defendant filed a motion to dismiss the action because of the defect in tbe writ. The presiding judge allowed the plaintiff to amend his writ, changing it from a capias to a capias or attachment, and overruled the motion to dismiss.

<p>ON exoeptioNS and Motion to set aside the verdict.</p> <p>Aii action on the case to recover damages of the defendant corporation for carelessly and negligently preventing the plaintiffs from seasonably delivering 751,290 feet of spruce logs, and 48,780 feet of pine logs, cut and hauled by them in the winter of. 1872-3, on landings on the steam between Caribou lake and Chesuncook lake, at the outlet of Chesuncook lake, in consequence of which 600,000 feet of the plaintiff’s logs were not driven to market in the year 1873, but were left behind in an exposed position, where many were lost, and there was a great shrinkage in quantity and quality.</p> <p>The writ is dated December 8, 1877.</p> <p>Plea, general issue.</p> <p>The verdict was for plaintiff for $1496.51, and the defendants move to set the same aside as against law, and against evidence and the weight of evidence. The defendants also allege exceptions to refusals of the presiding judge to give certain requested instructions.</p> <p>The following are the provisions of the charter of the defendant corporation referred to in the argument of counsel and opinion of the court.</p> <p>"An act to incorporate the Penobscot Log Driving Company: Section 1. That Ira Wadleigh, Samuel P. Strickland, Hastings Strickland, Isaac Farrar, William Emerson, Amos M. Eoberts, Leonard Jones, Franklin Adams, James Jenkins, Aaron Babb and Cyrus S. Clark, their associates and successors, be, and they are hereby made and constituted a body politic and corporate, by the name and style of the Penobscot Log Driving Company, and by that name may sue and be sued, prosecute and defend, to final judgment and execution, both in law and in equity; and may make and adopt all necessary regulations and by-laws not repugnant to the constitution and laws of this State and may adopt a common seal, and the same may alter, break and renew at pleasure; and may hold real and personal estate not exceeding the sum of fifty thousand dollars at any one time and may grant and vote money; and said company may drive all logs and other timber that may' be in the west branch of Penobscot river between the Chesuncook dam and the east branch to any place at or above the Penobscot boom, where logs are usually rafted, at as early a period as practicable. And said company may for the purpose aforesaid clear out and improve the navigation of the river between the points aforesaid, remove obstructions, break jams and erect booms where the same may be lawfully done, and shall have all the powers and privileges and be subject to all the liabilities incident to corporations of a similar nature.”</p> <p>"Section 3. Every owner of logs or other timber which may be in said west branch between said Chesuncook dam and said east branch or which may come therein during the season of driving and intended to be driven down said west branch, shall on or before the fifteenth day of May in that year, file with the clerk a statement in writing, signed by such owner or owners, his or their authorized agent, of all such logs or timber, the number of feet, board measure, of all such logs or timber, and the marks thereon, and the directors or one of them shall require such owner or owners or agents presenting such statement to make oath that the same is, in his or their judgment and belief, true, which oath the directors or either of them are hereby empowered to administer. And if any owner shall neglect or refuse to file a statement in the manner herein prescribed, the directors may assess such delinquent or delinquents for his or their proportion of such expenses, such sum or sums, as may be by the directors considered just and equitable. And the directors shall give public notice of the time and place of making such assessments by publishing the same in some newspaper printed in Bangor, two weeks in succession, the last publication to be before making such assessments. And any assessment or assessments when the owner or owners of any mark of logs or other timber is unknown to the directors, may be set to the mark upon such logs or other timber. And the clerk shall keep a record of all assessments and of all expenses upon which such assessments are based, which shall at all times be open to all persons interested.”</p> <p>" Section 4. Said directors are hereby authorized to make the assessment contemplated in the last preceding section, in anticipation of the actual cost and expenses of driving, and in any sum not exceeding for each thousand feet, board measure, the sum of sixty-two and one half cents, and so in proportion to the distance which any logs or other timber is to be or may be driven between said Chesuncook dam and the places of destination, to be determined by said directors. And if after said logs or other timber shall have been driven as aforesaid and all expenses actually ascertained, it shall be found that said assessment shall be more than sufficient to pay said expenses, then the balance so remaining shall be refunded to the said owner or owners in proportion to the said sum to them respectively assessed.” Approved August 10, 1846.</p> <p>An act additional, approved July 31, 1849 : "Section 1. The Penobscot Log Driving Company may drive all logs and lumber between the head of Chesuncook lake and the east branch, instead of between the Chesuncook dam and the east branch, and with all the powers, rights and privileges, and under the same conditions, limitations and restrictions, as is provided in the act to which this is additional; and may assess according to the provisions of said act, a sum not exceeding twenty-five cents for each thousand feet, board measure, in addition to the sum of sixty-two and one half cents, as provided for in the fourth section of said act, for the purpose of paying the expenses of driving said logs and lumber across said lake.”</p> <p>An act to amend, approved April 20, 1854: "Section 1. The Penobscot Log Driving Company, are hereby authorized to make an assessment for the purposes required in said charter of the sum of eighty cents for every thousand feet' of lumber driven by said company, instead of sixty-two and a half cents as is provided in said charter.”</p> <p>An act additional, approved April 9, 1856 : "Section 1. The powers granted to the said company are hereby enlarged and extended so as to include within the chartered limits thereof the boom and piers, now in process of being erected at the head of Chesuncook lake, which are to become the property of said company, and all the expenses of erecting and completing the same, are to be assumed and borne by said company.”</p> <p>"Section 2. The company may assess a toll pursuant to the provisions of their charter, not exceeding one dollar for every thousand feet, board measure, of logs driven under the provisions of said act; and all acts and parts of acts providing for any different rate of toll are hereby repealed, except that they shall remain in force as to all tolls heretofore assessed and remaining uncollected.”</p> <p>"Section 3. The directors may authorize the treasurer to give the company notes for the amount necessary to be raised to pay the expenses of erecting said boom and piers for such sums and payable at such times as they direct. Provided, this act shall be accepted by the said company at a meeting called for that purpose.”</p> <p>An act additional, approved March 21,1864 : " Section 2. Said company shall be under no obligation to drive any logs coming into the Chesuncook lake at any other point than from the main west branch unless seasonably delivered to them at the head or outlet of said lake.”</p> <p>An act additional, approved February 24, 1865 : "Section 1. The Penobscot Log Driving Company may assess a toll not exceeding two dollars per thousand feet, board measure, on all logs and lumber of the respective owners, which may be driven by them, sufficient to cover all expenses, and such other sums as may be necessary for the purposes of the company, and all acts and parts of acts inconsistent with this act are hereby repealed.”</p> <p>A copy of votes passed at the annual meeting of the Penobscot Log Driving Company, held February 11, 1873 :</p> <p>"Voted. That the directors be authorized and directed to employ a suitable person for agent on the drive.”</p> <p>"Voted. That it shall be the duty of the person employed as agent on the drive, to determine when and where logs may be left on said drive; and whoever drives the logs in said drive the ensuing season shall be under the direction of said agent; and for all logs left without the consent of said agent, a reasonable damage therefor the directors shall collect of the party making-said drive, said agent to keep an account of all logs left.”</p> <p>Contract of Henry Davis to drive the West Branch in 1873 :</p> <p>"Bangor, February 18th, 1873.</p> <p>Memorandum of agreement between the Penobscot Log Driving Company, of the one part, and Henry Davis, as principal, and George W. Pickering and George C. Pickering, as sureties, on the other.”</p> <p>"Said Weed, [A.oB. Weed] or other person satisfactory to Davis, to be selected by the directors, is to accompany the drive and may act as clerk of the drive; he shall decide when the drive shall leave Chesuncook dam, and ho is to follow the drive and see that it is faithfully performed. He shall also decide what logs may be left in the drive, and his decision shall bo binding, he to keep account thereof, and all others shall be driven. His wages to be paid one-half by each party, but to be boarded by Davis.” *</p> <p>That contract was on the day of its date transferred by Henry Davis to John Boss.</p> <p>There was evidence tending to show that A. B. Weed was the person agreed upon as agent and clerk as provided by the vote and contract, and that he acted as such.</p> <p>Defendant’s counsel requested the presiding justice to instruct the jury as follows :</p> <p>"1. Tbe corporation is not by tbeir charter under any legal obligation to drive the logs; but the charter gives them the power to drive, and for all such logs as they do drive the corporation is to be paid.”</p> <p>"2. If the plaintiff did not file with the clerk the notice required bv section three of their charter he cannot maintain this suit.”</p> <p>"3. If the parties having charge of the drive under the company, acted with integrity and good faith in what they did in making the drive, and in concluding upon the best and proper time for starting, the company is justified in what they did, and would not in that case be liable to plaintiff.”</p> <p>"4. The decision of Mr. Weed, as the party agreed upon for starting the drive, under the contract and vote, (one or both,) if honestly made, was binding on the plaintiff, and justified the company in leaving as they did.”</p> <p>upon the question of the liabilities of the defendants under their charter, depending- upon the construction of the word may in section .one, "may drive all logs,” &c., cited: Bouvier’s Law Dictionary — word, May.; Angelí & Ames on Corporations, 10th ed. 114; Fowler v. ParJcins, 77 Ill. 271; Potter’s Dwarris on Statutes, 22.0, note 27; People v. Otsego County Supervisors, 51 N. Y. 401. "The word may in a statute means must whenever third persons or the public have an interest in having the act done which is authorized by such permissive language.”</p> <p>claimed that the act of incorporation formed a mutual company, and not a stock company, and that no liability was incurred or intended to be imposed upon the company to drive all logs, &c., and cited: R. S., c. 42, § 6 ; 15 Mass. 205 ; 11 N. Y. 601; 1 Blatch. 359 ; 68 Maine, 414; 7 N. Y. 99.; 14 Pet. 178; 16 How. 261; 2 Paine, 584; Dwarris on Statutes.</p> <p>If the duty was mandatory there would be some clause recognizing it as in the case of railroads; R. S., c. 51; common carriers, c. 52; telegraph companies, c. 53; aqueducts, c. 54; mills, c. 57 ; toll bridges, c. 50 ; corporations, c. 46 & 48 ; banks, c. 47 ; hawkers, c. 44; fish and fisheries, c. 40; division fences, c. 22 ; pounds, c. 23 ; paupers, c. 24; ferries, c. 20 ; law of the road, c. 19; ways, c. 18.</p> <p>This case differs from those where may has been construed shall as in Stale v. Sweelsir, 53 Maine, 440 ; Milford v. Orono,. 50 Maine, 533, and cases cited; 1 Pet. 64; 1 Hill, 545; 61 Maine, 506; 5 Cow. 193; 39 N. H. 435 ; 42 N. II. 102; 61 Maine, 494. In this connection counsel also cited: Phelps v. Hawley, 52 N. Y. 23; People v. Supervisors, 51 N. Y. 401;, 3 Hill, 612; 4 Wall. 435 ; 5 Wall. 708.</p> <p>II. The positive requirements of section three of the charter,, that the owner of logs to be driven shall file with the clerk a statement, is a condition precedent to any liability on the part of the company to drive. R. R. Go. v. Brewer, 67 Maine, 295 ; Veazie v. Bangor, 51 Maine, 509, and 53 Maine, 50; Johnson. v. Ins. Go. 112 Mass. 49; Prentiss v. Parks, 65 Maine, 559., And there was no -waiver of that requirement in this case. Pratt v. Ghase, 122 Mass. 262; 47 Maine, 298.</p> <p>III. If the company is compelled to drive all the logs seasonably delivered they have the right to rely upon their own best judgment, honestly exercised, as to the time for starting the-drive, and not the judgment of a jury afterwards impanneled to try their case. If the defendant’s agent acted honestly in fixing upon the time for starting, the plaintiff and all others must abide. 3 How. 83 ; 7 How. 89-130 ; 10 Met. 108 ; 120 Mass. 565 ; 51 N. H. 128 ; 37 Conn. 365; 49 Pa. St. 151; 44 Mo. 491; IT. Ohio, 402; 36 Cal. 208 ; 3 Allen, 170; 1 Hilliard Torts, 108 11 M. & W. 755 ; 1 Pars. Contr. 54-5, 73; 6 Met. 13-26;, Larrdbee v. Bewail, 66 Maine, 376.</p> <p>IV. The plaintiff, by offering his logs to be driven by a hired! contractor, is bound by the rules adopted for governing the' drive as expressed both in the vote and in the contract.</p> <p>Counsel further argued in support of the motion to set aside1 the verdict.</p>

<p>On report.</p> <p>An action on the case to recover damages of the defendant corporation, for carelessly and negligently preventing the plaintiff from seasonably delivering 1,500,000 feet of logs, cut and hauled by Mm in the winter of 1876-7, on landings near Caribou late, at the head or outlet of Chesuncook lake; and for leaving the Chesuncook lake with their main drive, before the plaintiff could make a seasonable delivery of Ms logs mto such lake, in consequence of which the plaintiff’s logs were delayed one year in reaching market, and thereby greatly depreciated in value.</p> <p>The writ was dated July 18, 1877.</p> <p>After the testimony for the plaintiff was presented, the case was reported to the full court with the agreement that if the action could be sustained, it was to stand for trial; otherwise, plaintiff nonsuit.</p> <p>A copy of defendant’s charter may be seen in the report of the preceding case of "Weymouth v. same defendants.</p> <p>The facts appear in the opinion.</p>

<p> Promissory note■ Indorsement. Variance. Savings Banks. </p> <p>It. 8., c. 47, § 91.</p> <p>Tlie writ declared upon a note payable to tlie order of C. B. Malian, Agent, and indorsed by C. B. Mahan, Agent, to tlie plaintiff, and the indorsement upon the note was “Granite Agricultural Works, C. B. Mahan, Agent;” Held, that the indorsement is the indorsement of C. B. Mahan, Agent, the payee of the note, as alleged in the declaration, and is not •viliated by the needless reference to the company for which he was agent, and that there is no variance, and the note was properly received in evidence.</p> <p>The statute, prohibiting savings banks from loaning money on the security of names alone, is directory to the trustees, and designed for the protection of the depositors, and will not prevent a bank from enforcing payment of a promissory note whether the purchase was or was not in conformity with its provisions.</p>

<p>On 'exceptions.</p> <p>This was an action of tbo case to recover damage for loss of goods, which plaintiff alleges in his writ was caused by the defendant’s negligence as a common carrier.</p> <p>At the trial the plaintiff requested the following instructions r "1st. That the mere fact of delivery of .the goods to defendant corporation for transportation, raised a presumption that such delivery was made and goods received for immediate transportation, and the liability of common carrier attached, unless modified by special agreement.”</p> <p>"2d. That the bill of lading ■ offered in this case is not sufficient to exempt defendant corporation from its common law liability as a common carrier, because it (the bill of lading) assumes to exempt from liability from loss by fire, whether resulting from accident or the negligence of defendant corporation.”</p> <p>"3d. That the non delivery of the salmon is prima facie evidence of negligence upon the part of defendant corporation.”</p> <p>" 4th. That the burden is upon defendant corporation to show that the loss of goods occurred by some cause other than its own negligence.”</p> <p>" 5th. That the loss of the goods is prima facie evidence of negligence.”</p> <p>" 6th. That if the flour was delivered for transportation upon the next steamer which was to sail from defendant’s wharf, such delivery was a delivery for immediate transportation, and the defendant would be liable as a common carrier.”</p> <p>"7th. The burden to show that the loss did not occur by defendant’s negligence is on defendant.”</p> <p>" 8th. That defendant is not excused from liability for loss of the salmon, unless the jury shall find that the plaintiff, at the time of the delivery in Halifax, accepted the bill of lading offered in evidence, without objection.”</p> <p>" 9th. That in the absence of any agreement in writing, signed by the consignee, limiting the liability of a common carrier, or evidence of the acceptance of a bill of lading so limiting the liability, without objection, a common carrier is liable for loss of goods delivered and received for carriage.”</p> <p>"10th. That the bill of lading offered in this case, and the evidence offered relative thereto, and relative to the delivery and acceptance of the salmon by defendant in Halifax, does not exempt defendant for loss of the salmon.”</p> <p>The exceptions, after reciting the requested instructions and the entire charge of the judge, adds, "to all which rulings and instructions, and refusals to instruct, the said plaintiff excepts, and prays that his exceptions may be allowed.”</p> <p>claimed, that where a steamboat company has one steamer making weekly trips, and merchandise is left at the steamer’s wharf, after the steamer has sailed, to be transported on the next trip, and the merchandise is received for this purpose and not for storage merely, the liability is that of common carrier, and the company would be liable to make good damage to such merchandise by fire after the return of the steamer, but before it was put on board.</p> <p>The refusal of the presiding judge to give the first requested instruction, left the burden upon the plaintiff to show a special contract that the goods vrere delivered to, and received by the defendant corporation as a common carrier, instead of compelling a common carrier to prove tbat goods received by Mm, in the ordinary course of business, were not received by Mm as a common carrier.</p> <p>It is only when goods are subject to further orders of the shipper, that the limited liability of warehouseman attaches. Barron et al. v. Fldredge et ais. 100 Mass. 458 ; O’Neil v. _ZV. Y. Gen. B. B. Go. 60 N. Y. 138.</p> <p>Generally the liability as common carrier attaches the moment the carrier receives the goods into his warehouse, or upon his dock or wharf. Glarke v. Needles, 25 Pa. St. 338 ; Ladue v. Griffith, 25 N. Y. 364; Story on Bailments, § 532; Moses v. B. &. M. B. B. Go. 4 Foster, 71; Blossom v. Griffin, 3 Kernan, 569; Story on Bailments, § 536; Fitchburg <& W. B. B. Go. v. Hanna et al. 6 Gray, 541; Merriam v. H. &. N. H. B. B. Go. 20 Conn. 354; Wilson v. G. T. By. 57 Maine, 138.</p>

ON EXCEPTIONS. Writ is dated July 21, 1874. The defendant filed a general demurrer to the declaration, which was joined. The presiding judge sustained the demurrer and adjudged the declaration bad, and the plaintiff alleged exceptions.

<p>ON REPORT.</p> <p>Upon so much of the evidence as is legally admissible, the full court are to render such judgment as the law and the evidence warrant.</p> <p>The facts appear in the opinion.</p> <p>cited: R. S., c. 71, § 22; c. 76, § 44; Rollins v. Mooers, 25 Maine, 192; Mechanics Bank v. Hallowell, 52 Maine, 545.</p> <p>The common law effect of plene administravit is to cast on the plaintiff the burden of showing personal assets wherefrom she might be paid. By that law real estate cannot be reached in a suit against an administrator; 2 Gxeenl. Ev. 346, 347. This case does not show any personal assets of defendant’s intestate.</p> <p>If Lunt left real estate, that fact will not aid the plaintiff. R. S., c. 76, § 44, does not say that plaintiff upon showing real estate may obtain judgment. The statute does not change the common law rule, that plaintiff must show personal assets to obtain judgment.</p>

<p>Trustee. Trior creditors. Disclosure — requires detailed and particular statements.</p> <p>When properly has been conveyed by the principal defendant to the alleged trustee, and not purchased by the trustee, any balance of the same, in the hands of the trustee, over and above the amount the defendant owed him, would be held by him without consideration, and would be attachable by prior creditors.</p> <p>Where, by the disclosure of an alleged trustee, it appears, that at one time prior to the service of the writ upon him, he held funds of the principal defendant, which would be attachable in that suit, the burden is upon the trustee to show, that, prior to the service, he had expended such funds for the defendant’s benefit, and this cannot be done by doubtful, indefinite and sweeping statements, with an omission of details and particulars.</p>

<p>Death — presumption from absence. Dower. Witness — competency of. B. 8., c. 82, § 87.</p> <p>If a person leaves Ms usual home and usual place of residence for temporary purposes, and is not heard of or known to be living for the term of seven years, by those persons who would naturally have heard from him during the time had he been alive, the presumption is that he is dead. The rule does not coniine the intellig-ence to any particular class of persons; it may be persons in or out of the family.</p> <p>A failure to hear from an absent person for seven years, who was known to have had a fixed place of residence abroad, would not be sufficient to raise a presumption of his death, unless due inquiry had been made at such place without getting tidings of him.</p> <p>The demandant in a writ of dower is a competent witness in her own behalf, although the tenant holds the estate by inheritance from his father, the demandant’s late husband. The son is not “made a party as an heir of a deceased party,” but is a party because the tenant of the estate.</p> <p>Where an agreement between husband and wife made before marriage, is set up as a bar to her right to recover dower in his estate by the heirs of the deceased husband, and the widow seeks to avoid the agreement as obtained from her by her husband’s fraud, his declarations that the agreement was void or invalid or good for nothing, and like expressions, are admissible in connection with other evidence, as tending to show the alleged fraud.</p>

<p>ON EXCEPTIONS from superior court, Kennebec county, certified to the chief justice by virtue of stat. 1878, c. 10, § 7, January 22, 1880.</p> <p>Action on the case to recover damages for injuries sustained on account of false swearing of the defendant before a commissioner appointed by the court under c. 67, stat. 1878, "An act to provide additional remedies for the enforcement of judgments.”</p> <p>The writ was dated January 30, 1879, and entered at the April term. Defendant filed a general demurrer which was ■ sustained by the presiding justice of the superior court.</p> <p>There is no wrong without a remedy. It was that maxim that occasioned the enactment, 13 Edw. I, c. 24. When the declaration discloses an injury, cognizable by law, though there be no precedent, the common law will judge according to the law of nature and the public good. Injury from the perjury of a witness is cognizable by law. K. S., c. 122, § 1; 2 C. B. 342 ; 3 Burr. 1771; 1 Bingh. 339; 1 Maine, 324; Broom’s Legal Maxims, 193-195. It did not require the interposition of the legislature to provide a remedy. Chase’s Blackstone, 678 ; Parley v. Freeman, 3 T. B. 51; Com. Dig. Action on the Case for Deceits; Broom’s Leg. Max. 785.</p>

On report. Writ dated December, 13, 1878. Assumpsit, on account annexed for hay. . Plea, general issue. The case to be reported to the law court and a nonsuit or default to be entered as the court may order.” The court to draw such inferences as a jury might. The facts appear in the opinion. The correspondence in this case is not sufficient to take the case out of the operations of the Statute of Frauds. Jenness v. Ml. Hope Iron Oo. 53 Maine, 22.

On report. Trespass against tbe sheriff of Waldo county, for the acts of J. L. Norton, his deputy, February 3, 1876, in taking with force and arms, carrying away and converting to his own use, one water wheel and gear thereto belonging, consisting of two' iron shafts, two beveled gears and two drums, all of the value-of eight hundred dollars. Writ was dated October 1, 1877.

MotioN to set aside the veediot because of disqualification of a juror. An indictment for perjury. Verdict, guilty. All the material facts appear in the opinion.

<p> Agency. Liability of principal. </p> <p>An agent, appointed by a company to liave charge of a store, sell the goods, and from time to time make such purchases of goods as might be necessary in his judgment, subject to the general oversight of the directors, has no authority to give notes of the company in order to procure loans of money; and when notes in suit were thus given the plaintiff cannot recover. ■When an agent without the authority or knowldge of his principal, borrows money and applies it to the payment and discharge of the legal liabilities of Ms principal, and the principal knowingly retains the benefit of such payment, the lender may recover therefor in an action against the principal for money had and received.</p> <p>A principal cannot knowingly retain the benefit of money hired by his agent, in the name of the principal, and at the same time legally refuse to repay the loan upon the ground that the agent had no authority to borrow money.</p>

On report. AotioN op assumpsit for two five hundred dollar United. States bonds. Writ is dated November 26, 1877. Plea, general issue, with the following brief statement: And the defendant further says, by way of brief statement as matters of her defence, that the claim and demand, declared upon and described in the plaintiff’s said writ, w’as not presented to her in writing and payment demanded at least thirty days-before the said action was commenced.” At the trial, Jno.

On agreed statement oe facts. The case was submitted for the purpose of determining the rights of the defendant corporation, under its charter. The material facts appear in the opinion. Charter. — An act to incorporate the Richardson Lake Dam Company. Be it enacted by the senate and house of representatives in legislature assembled, as follows : Section 1.

ON EXCEPTIONS. This is an action of assumpsit against the defendant on a promissory note, of which the following is a copy : Lisbon Palls, Dec. 3, 1872. $174. For value received, I promise to pay to Joseph W. Littlefield or order, one hundred and seventy-four dollars on demand with interest. g. w. COOMBS. LEVI T. COOMBS.” Interest on above note to be nine per cent. c. w. c.” Other material facts appear in the opinion.

<p>ON EXCEPTIONS AND REPORT.</p> <p>The facts sufficiently appear in tbe opinion. The following are copies of the due bills and amendment referred to in tbe opinion.</p> <p>(Due bills.)</p> <p>" 14.19.</p> <p>Due Michael Murphy for labor done in tbe woods for us the present winter, fourteen dollars and nineteen cents. Payable in April next.</p> <p>John Adams & Co.</p> <p>Jan. 15th, 1877.”</p> <p>"18.52.</p> <p>Due Mike Murphy eighteen dollars and fifty-two cents; it being for labor done in the woods for us the past winter. Payable the first of April next.</p> <p>JohN Adams & Co.</p> <p>Kingfield, March 20th, 1877.”</p> <p>"$26.65.</p> <p>Due H. P. Prescott, twenty-six dollai’s and sixty-five cents, it being for labor done in the woods for us the present winter. Payable April next.</p> <p>John Adams & Co.</p> <p>Kingfield, Feb. 7, 1877.”</p> <p>Motion to amend. — "Somerset county. Supreme Judicial Court. September term, 1878. H. Frank Prescott vs. John Adams et al. and certain logs. And now on the first day of said term, the plff. moves to amend the writ in the action aforesaid, by inserting after the words 'also certain logs marked YPX L,’ the following words, viz : 'and certain logs marked,’ and after the words YPXK, and ' certain logs marked,’ so that the writ amended, shall read as follows, viz : 'and also certain logs marked Y P X L, and certain logs marked YPXK, and certain logs marked Y P X O,’ and that the description of the marks upon the said different lots of logs in the body of said writ, wherever occurring, may be similarly amended.</p> <p>Stewart & Hopkins, Att’ys for Pl’ff.”</p> <p>The presiding judge allowed the amendment and W. E. L. Dillaway, claimant of the logs as assignee in bankruptcy of Moseley, Wheelwright & Co., the original owners, alleged exceptions.</p> <p>By the report the full court are to draw inferences as a jury might, and enter such judgment as shall be in accordance with the legal rights of the parties.</p> <p>Tbe lien given by statute is an inchoate, personal right. Pearsons v. Tincker, 36 Maine, 387; Golley v. Doughty, 62 Maine, 501; Rollins v. Gross, 45 N. Y. 766 ; Ames v. Palmer, 42 Maine, 197. And being but an inchoate, personal right, to be invoked or not at the pleasure of the person for whose benefit it is given, the right to invoke it cannot be assigned or transferred to another. Pearsons v. Tincker, supra; Ames v. Palmer, supra; Daubigney v. Duval, 6 Taunton, 604; Oaldwett v. Lawrence, 10 Wis. 332 ; Rollins v. Gross, supra; Fitzgerald v. First Presb. Church, 1 Mich. (Nisi Prius,) 243; Roberts v. Fowler, 4 Abbot, Pr. (N. Y.) 263, and same case, J. E. D. Smith, 632; Foster v. Westmoreland, 52 Ala. 223 ; TJrquehart v. Mclver et' al. 4 John. 102 ; McOombe v. Davies, 7 East. 5. The lien and the debt were inseparable while both existed, and when the plaintiff transferred the debt, fully and unconditionally, so that he had no remaining interest in it, the lien ceased to exist. In Iowa it has been decided, that, while taking a note does not extinguish the lien, the negotiation of the note is a waiver of the lien. Scott v. Ward, 4 Iowa, 112.</p> <p>The legislature of Wisconsin passed an act in 1859, c. 113, allowing any number ox persons having liens to assign to one of their own number, and that such assignee might have the benefit of the lien act. In this case it is proposed to go farther in that direction without an act of the legislature than they could in that State under that act, for here it is not one lienor assigning-to another but to outsiders.</p> <p>Statutory liens are to be strictly construed, and in order to secure the benefit of these, parties must bring themselves closely within their provisions. Lord v. Woodard, 42 Maine, 497; Thompson v. Gilmore, 50 Maine, 428 ; Sheridan v. Ireland,. and logs, 61 Maine, 486; Stuart v. Morrison, and logs, 67’ Maine, 549.</p> <p>The amendment to the Prescott writ was improperly allowed ;• because its effect was to annul the statutory limits within which a lien of that nature should be enforced, and because the rights of third parties had intervened, (the creditors of Moseley,. Wheelwright & Co.) an d because it introduced a new cause of action „ R. S., c. 91, § 34; stat. 1876, c. 64; Frost v. Illsley, 54 Maine, 345 ; Stuart y. Morrison, and logs, supra; Witte v. Meyer, 11 Wis. 295 ; íraiíii v. Wittman, 34 Md. 35 ; Phillips, Mec. Liens, ■427; In re Dey, 3 N. B. Reg. 81, S. C. Blatchford, C. C. 285 ; . Annis v Gilmore, 47 Maine, 152; Milliken y. Whitehouse, 49 Maine, 527 ; Oooper v. Waldron, 50 Maine, 80; .ParJcman v. Nutting, 59 Maine, 398; Farmer y. Portland, 63 Maine, 46; JBicIcnell v. Trickey, 34 Maine, 273.</p>

On heport from the superior court, Kennebec county. The law court were to draw inferences as a jury might, and render such judgment as tbe law and the evidence, legally admissible, require. Tbe material facts appear in the opinion. cited : 3 Allen, 426 ; Davis v. Dunlclee, 9 N. H. 545; Davis v. Granger, 3 Johns. 259; Pereival v. Dickey, 18 Johns. 257; Buffurn v. Tilton, 17 Pick. 510; 1 Cbitty PL 454, note 3; Marble v. Keyes, 9 Gray, 222.

Ox report from superior court, Kennebec county. This was an action of debt on judgment, in which the Gardiner National Bank and Cobbossee National Bank-were summonded as trustees. The .¿Etna Insurance Company appeared, and claimed the funds in the hands of the trustees.

On exceptions. Troyer for the value of two horses, one a light gray mare known as the Marshall mare,” the other known as the Abbott horse,” alleged to have been converted by the defendant in September, 1870. Date of writ, August 3Q, 1876. Plea, the general issue; and, by way of brief statement, the statute of limitations. The exceptions allege that the defendant proved the genuineness of the signature of Isaac N. Pinkham to the following paper: $125. January 9, 1869.

<p> Bights of a married woman prior to March 22, 1844, in real estate. Title under the treaty of Washington. </p> <p>A woman who was married Before March 22, 1844, cannot, while her husband lives, sustain an action against his grantees for land by Mm conveyed, even though she should show a title in fee in herself.</p> <p>By a marriage previous to that date the husband acquired a freehold in her land and a right to the rents and profits of the same during their joint lives, and, in case of living issue, an estate for his own life if he survived her; all which would pass to his grantees by his conveyance.</p> <p>"Where the demandant claims title, by having acquired, as of her own property sand estate, the rights of the party, who was in possession six years prior ’to the treaty of August 9, 1842, between the United States and Great Britain, •the evidence must show the connection between her title and the party thus . in possession; and the claim cannot be sustained upon loose, vague and i uncertain testimony.</p>

On AGREED STATEMENT OK KACTS. • This is an action of debt, to recover damages allowed for the location of a town way.

Bill in equity, to restain the town from expending money raised for the support of ways, upon a road established by the following deed and vote of the town : Deed.

<p>The opinion states the case.</p> <p>in discussing the question of the effect of the insolvent law upon the assignment law, cited: Knight v. Aroostook JR. JR. 67 Maine, 291; Commonwealth v. Kelliher, 12 Allen, 480; JNorris v. Crocker, 13 How. 429 ; Bump’s Bankruptcy, 8th ed. 407.</p> <p>Ivory W. Coombs and James P. Parker, and Whiting S. GlarJe, for the defendants, Alfred Jones and wife.</p> <p>The provisions of It. S., c. 70, are not repealed by implication or otherwise by the insolvent act of 1878. The able and astute counsel for the complainant by the framework of their bill ol complaint admit this. The insolvent courts donotbystat. 1878, c. 74, have exclusive but only original jurisdiction. The last clause of section one restricts the insolvent court from jurisdiction in a class or classes of " cases arising under the provisions of this act,” " where it is otherwise specially provided.”</p> <p>If the legislature of 1878 intended that the insolvent law should repeal the assignment law, they would have said so. Their intention was manifestly the other way, from the restriction of jurisdiction in cases where "it is otherwise specially provided.”</p> <p>It is only where there is no intention, whatever, manifested by the legislature, by a saving clause of any sort to preserve former statutes in force, that a repeal by implication is allowed to operate. And when there is a saving clause or manifest intention to preserve former acts it must prevail, even at the expense of restraining the operation of the subsequent act. Williams v. Pritchard, 4 T. II. 3; Hex v. Poor Law Oom’rs, 6 A. & E. 1; Capen v. Clover, 4 Mass. 305; Pease v. Whitney, 5 Mass. 380; Commonwealth v. Kimball, 21 Pick. 377; Browns. Loicell, 8 Met. 174; United States v. Qlafiin 97 U. S. 551.</p> <p>We ask the particular attention of the court to the case of Garter v. Sibley, 4 Met. 298, which involved the question of repeal of an assignment act by a subsequent insolvent act. See also, Sturges v. (JroioinsMeld, 4 Wheat. 203.</p> <p>"Acts in pari materia are to be taken together as one law, and are to be so construed that every provision in them may, if possible, stand. Courts, therefore, should be scrupulous how they give sanction to supposed repeals by implication.” Haynes v. Jenks, 2 Pick. 176; Commonicealth v. Crowley, 1 Ashmead, 179 ; Hr. Poster’s Case, 11 Co. 63 ; Loker v. Brookline, 13 Pick. 348; Goddard v. Boston, 20 Pick. 410; Snell v. Manufacturing Co. 24 Pick. 299.</p>

<p> Deed, of a married woman. Parol evidence to change a deed to a mortgage. Fraud of third person. </p> <p>Where a married woman, prior to her marriage, liad received a deed of real estate from one, who subsequently became her husband; Seld, that such a deed was in no sense a conveyance to her from her husband, since she received her title from one, who, at the time, sustained no such relation to her; that her sole deed executed after the marriage gave title.</p> <p>In this State in an action at law, parol evidence is not received to prove that a deed of land, in terms absolute, was intended only as security for a debt.</p> <p>It is not competent to show fraud or duress on the part of the husband, in procuring from his wife a warranty deed, under which her grantee is a bona fide holder of the title, without proof of the complicity of such grantee in such fraud or duress.</p>

ON REPORT. An action for money bad and received, bought under the statute on an appeal from the report disallowing the claim by commissioners, appointed by the judge of probate to examine ■disputed claims against the estate of Ezra Kempton. The writ was dated September 28, 1877. Plea, general issue and brief statement of no notice to the administrator as required by tbe statute, and statute of limitation.

<p>Attachment — exceptions under It- 8., c. 81, § 69. “ Cart or truck wagon.” Peddler's cart.</p> <p>A pedcller’s wagon designed to be used in trade from place to place, with the body hung upon three elliptic steel springs, with drawer behind and doors at the sides, and a railing around the top, and dasher in front, is not a vehicle which is exempted from attachment and execution under E. S., c. 81, § 59, clause 9, which exempts “ one cart or truck-wagon.”</p>

<p>Bill iu equity cannot be inserted in « capias writ.</p> <p>A bill in equity inserted in a writ may be served by an attachment of property, but not by an arrest of person.</p>

<p>ON exceptions from superior court, Cumberland county.</p> <p>Assumpsit on account annexed to recover the sum of $219.30. The writ is dated November 7, 1878.</p> <p>Plea, general issue, and brief statement alleging discharge in bankruptcy.</p> <p>The plaintiffs filed a counter brief statement, alleging that the defendant intentionally and fraudulently omitted their names from his schedule of liabilities, filed by him in the bankrupt court, to the correctness of which he willfully swore falsely, and the plaintiffs had no knowledge of the bankrupt proceedings, and no benefit from the dividend paid from the bankruptcy.</p> <p>The plaintiffs offered evidence to prove the allegations of their counter brief statement, but it was excluded as inadmissible, and on motion a nonsuit was ordered, and plaintiffs alleged exceptions.</p> <p>This court in Symonds v. Barnes, 59 Maine, 191, say, "if must appear that the omission was fraudulent, and the affidavit willfully false.” That is just what we alleged, and offered to prove in the case at bar, but the presiding judge excluded the evidence. In re Myron Rosenhuvg, 2 N. B. 11. 241.</p> <p>We arc aware that the court in Massachusetts has decided against the position we take, but no grounds were given for the decision, and we submit it is not entitled to the weight of the court in Vermont, where this very question was raised, and was ably discussed in an opinion by Wheeler, J., and the conclusion reached, that a discharge in bankruptcy can be attacked in a state court. Batchelder v. Low, 43 Vt. 662, S. C. 8 B. II. 571.</p> <p>That accords with equity and justice and will prevent this defendant from obtaining a discharge in bankruptcy in Missouri, fraudulently keeping all knowledge of the proceedings from creditors in Maine, and then saying to a Maine creditor, who has obtained jurisdiction over him in his state court, "you must go to Missouri, 2000 miles away from home, if you would impeach my discharge in bankruptcy.”</p>

Bill in equity, inserted in a writ of original summons. The facts fully appear in the opinion.

On exceptions and motion to set aside the verdict. An action of the case under E. S., c. 113, § 51, for knowingly aiding and assisting William F. Quinnam in a fraudulent transfer and concealment of his property to secure the same from his creditors, by taking from Mm a conveyance of certain personal property. The writ was dated September 3, 1878, ad damnum $2000 ; plea, general issue, and verdict $525.

On report. Debt for a tax assessed against the defendant by the assessors of Norridgewock, in the year 1874. At the trial, a book, claimed by the plaintiffs to be the record of assessments, invoice and valuation of the town of Norridgewock was offered by them. It did not bear the signatures of the assessors, and there was nothing on the book to show by whom it was made. It was admitted subject to the defendant’s objection.

ON report from superior court, Kennebec county. Trespass for causing the arrest and imprisonment of the plaintiff. Date of writ, October 2, 1878.

On report. Petition for partition of certain real estate in Plantation No. 11, Aroostook county, dated January 21, 1878. Kespondonts moved to dismiss because the petitioner has not stated the proportions belonging to the other tenants in common, nor whether any or all of them are unknown, and has not prayed for partition of the whole premises.” The motion was overruled and leave to amend the petition was granted. The petitioner put in a copy of the judgment, 8.

ExceptioNS from the superior court, Cumberland county. Suit on recognizance. (Writ.) [l. s.] State of Maine. — Cumberland, ss. Held: when the indictment charges a different offence from that set out in the recognizance. Duke v. State, 35 Texas, 424; Gray v. State, 43 Ala. 41; State v. Broten, 16 Iowa, 314.

ON EXCEPTIONS. Error to reverse a judgment of the municipal court for the town of Brunswick. The case conies to the law court on exceptions by the plaintiff in error. The material facts appear in the opinion. Error is the only efficient remedy in this case. Jewell v. Brown, 33 Maine, 250. When the judge of the municipal court of Brunswick, qualified as a member of the legislature, he vacated his office as judge. Constitution, art. 3, § § 1, 2; art. 9, § 2.

<p>On report.</p> <p>This was an action of assumpsit brought on an account annexed to the declaration for $1821.65. The writ was dated August 1, 1878. The issues presented to the law court are founded upon the disclosure and allegations, and the material facts appear in the opinion.</p> <p>submitted without brief.</p>

An action under R. S., c. 113, § 51, against defendant for aiding one William P. Farnsworth in an alleged fraudulent sale of personal property. Writ dated April 28, 1876. The case has been once before presented to the law court and is reported in 68 Maine, 78.

On exceptions. Trespass for an alleged assault and battery, committed January 29, 1877. The writ is dated February 14, 1877. The verdict was for $600. The case comes to the law court upon the defendant’s exceptions to certain instructions in the charge to the jury. The facts sufficiently appear in the opinion. There is no, objection to the instructions actually given.

ON EXCEPTIONS. Replevin for certain goods claimed to have been delivered May 4, 1877, by the plaintiffs, liogcrs & Co. to Pope & Sibley, the assignors of the defendant, under the following agreement printed on the bill-head : Goods sold for cash, only conditionally delivered until paid for.” The assignment to defendant was for the benefit of creditors, and dated June 8, 1877. Writ was dated June 11, 1877. The verdict was for defendant.

On exceptions AND motion to set aside the verdict. The facts sufficiently appear in the opinion. The objection to the testimony of Mrs. Wyman is not well' founded, because: I. The element of fear is a legal element of damage in a case-like this. II. These facts were a part of the res gestae, and proper to gO' to the jury to determine whether there was gross negligence,, amounting to a willful and wanton intent on the part of the' defendant. III.

On agreed statement of facts. An action of debt on a fifteen days’ bond, given January 29, 1879, to relieve the defendant from arrest on a writ in an action of trespass for assault and battery, in which action judgment was subsequently rendered for plaintiff for seventy-five dollars damages and costs of court. The conditions of the bond were not performed. If the action can be maintained, default is to be entered and damages assessed by the clerk.

<p>Mortgage — redemption of. Costs.</p> <p>Where by the contract between the parties, the mortgager was to pay the mortgagees, interest after December 1, 1874, on all sums due and unpaid at that date, and the mortgagees credited on the mortgage debt, September S, 1871, the amount for which they had that day sold certain logs by virtue of the contract, for which they were paid partly in cash and partly in time notes, that had added to them the amount of the interest on each, for the time they severally had to run; Held, that the mortgagees were not required to account for, and credit upon the mortgage debt, the interest thus added to the notes, or any part of it.</p> <p>When mortgagees, upon a request in writing from the mortgager, for an account in writing of the amount due on the mortgage, render an account, which is imperfect and inaccurate, they will be liable to costs on bill in equity to redeem, if the mortgage is redeemed within the time named in the decree of the court.</p>

Bill in equity. The facts sufficiently appear in the opinion. The tax deed in this case is a cloud upon the complainant’s title and tends to depreciate the value of her property and she is entitled to the relief prayed for. Story’s Eq. Jur. 6th ed. § 700. Piersoll v. Elliott, 6 Peters, 95. The deed is in the usual form and the invalidity does not appear on its face. It is not like the cases cited by counsel.

On motion and exceptions. The facts are stated in the opinion. Money paid on the Lord’s day, and retained afterwards, discharges the debt. Johnson v. Willis, 7 Gray, 164. The defendant’s debt, then, was paid by the plaintiff. Whether work or acts done are a necessity, is a proper question for a jury. 120 Mass. 493; 118 Mass. 195.

On exceptions. On the thirty-first day of December, A. D. 1869, a certain highway was laid out by the county commissioners on petition of appellants in the towns of Farmington and Strong, and two years from December 17, 1870, were allowed to open and make said road. Subsequently, before the road was built, or any thing done towards building it, the county commissioners discontinued said highway.

Dissenting opinions by Appleton-, C. J., and Barrows, J. SyhoNDS, J. concurring. ON FACTS AGREED.

<p>Ox PACTS aoreed, whicli sufficiently .appear in the opinion.</p> <p>cited: Bosauquei v. Dodman, 2 Eng. C. L. 11; Goodwin v. Oremer, 83 Eng. C. L. 756 ; 1 Pars. Contr. 218, 284; Pray v. Maine, 7 Cush. 253; Cochrane v. Wheeler, 7 N. II. 202; Davis v. Stevens, 10 R. II. 186; Hopkins v. Farwell, 32 N. H. 425; Guild v. Eager, 17 Mass. 615; Godson v. Richards, 25 Eng. C. L. 387; Deacon v. Stodhart, 38 Eng. C. L. 291; Pollard v. Ogden, 75 Eng. C. L. 459; Jones v. Broadhursf, 67 Eng. C. L. 173; Eastman v. Plummer, 32 N. H. 238; 2 Pars. Notes & Bills, 216.</p> <p>The plaintiff ivas no party to this note. He became liable to the holder, by virtue of his agreement. But that was solely between him and the holder. There was no privity of contract between him and the maker or indorser of the note. The defendant did not request him to pay this noto, and when a person not being a regular party to a note, pays it for the honor or credit of the maker or any of the indorsers, without request, he does not thereby acquire a right to repayment from any of the prior parties. Smith v. Sawyer, 55 Maine, 189 ; Willis v. Hobson, 37 Maine, 403. Nor can the plaintiff prevail as a purchaser of this note. There is no pretense that he bought it. He paid it, and took it up.</p>

<p> Change of a writ before servioe. Amendment of the date of a writ. </p> <p>After the time for the service of a writ, for the return term, has expired, and no service has been made, the return day may he changed to the next succeeding term.</p> <p>An amendment substituting the real for the apparent date of a writ may be allowed in the discretion of the court.</p>

ON EXCEPTIONS. This was an action of the case, for that the said defendants at said Scarborough, on the twenty-ninth day of December, A. 1). eighteen hundred and seventy-seven, and for a long time prior thereto, were the owners and possessed of a certain ram, of vicious disposition and accustomed to attack and butt persons, all which was then and there well known to the defendants ; yet the defendants neglecting their duty in the premises, an The' defendant demurred to the…

<p>ON REPORT.</p> <p>The facts are stated in the opinion.</p> <p>cited : Bule 10, S. J. C. ; 3 Kent’s Com. 105, 106, 152 ; 2 Parsons, Notes & Bills, 27, 28, 445, 204; Clinton Bank v. Ayres 16 Ohio, 282; Elliot v. Abbot, 12 N. H. 549 ; Cross v. Rowe, 2 Foster, 77 ; 61 Maine, 512; 1 Parsons, Bills & Notes, 226; McGuire v. Godsby, 3 Call. 234; 5 Wend. 49 ; 37 Maine, 442.</p> <p>The treasurer of a saving bank has no right, virtute officii, to transfer title to paper never negotiated by the bank and outside of the ordinary course of business. For this he must havfe special authority, which cannot be implied from the facts in this case. Chase v. Hathorn, 61 Maine, 513.</p> <p>This was an accommodation note purely, and the plaintiff knew it, and that it was made for negotiation at a particular bank, hence he could acquire no right of action against the makers. 2 Daniels on Neg. Inst’s, § § 1190, 1332, 1328.</p> <p>Both defendants stood in the light of sureties, and entitled to all the defences of sureties. Brandt on Suretyship, § § 17, 95 ; Lime 'Lock Bank v. Mallett, 34 Maine, 547 ; Cummings v. .Little, 45 Maine, 183; Knox Co. Bank v. Lloyds, 18 Ohio stat. 353.</p> <p>And it is well settled that where a note is made payable to a particular jjerson, but is purchased by a third person, not the payee, with the knowledge that a signer of the note is surety only, the contract signed is never completed and the note is void as to such sureties and accommodation makers. Granite Bank v. Ellis, 43 Maine, 367 ; Showhegan Bank v. Baker, 36 Maine, 154; Manufacturers’ Bank v. Cole, 39 Maine, 188 ; Prescott v. Brinsley, 6 Cush. 233; Allen v. Ayres, 3 Pick. 298; Bank v. Ayres, 16 Ohio stat. .283; Russell v. Ballard, 16 B. Mon. (Ky.) 201.</p>

On report from the superior court, Cumberland county. Assumpsit on a promissory note. On the eleventh, day of the return term the defendant filed a motion to dismiss, which, it was admitted at the hearing, recites the facts.

<p>On motion.</p> <p>The jury were authorized to find from the testimony that the note in suit was originally attached to a written contract which made part of it, and from which it had been fraudulently separated, which rendered the note void even in the hands of a bona fide purchaser, which this plaintiff was not. Johnson v. Hea-gan, 23 Maine, 329 ; Gerrish v. Glines, 56 N. H. 9; Benedict v. Oowden, 49 N. Y. 376.</p> <p>There was no consideration for the note. It was fraud in Thompson to dispose of the note until the goods had been furnished and sold and equally fraudulent in the plaintiff to take the note. Denniston v. Bacon, 10 Johns. 198; 2 Pars. Notes & Bills, 539, 534.</p> <p>The frauds perpetrated by this Mahan and his agents in New England, New York and Michigan, have become matters of such historical and common notoriety that the court ought to take judicial notice of them. 1 Wharton Ev. § § 328, 338; "The Minne,” 1 Blatchford’s Prize Cases, 333 ; Ohio Life Ins. Oo. v. Debott, 16 How. 435.</p> <p>An existing intention is as much an existing fact as any other fact. And the want of it is like the want of any other fact. Fraud may consist in intention or in the want of it. An intention not to pay for property purchased, constitutes fraud. Dow v. Sanborn, 3 Allen, 181; Kline v. Baker, 99 Mass. 255; Wiggin v. Day, 9 Gray, 97; Bowley v. Bigelow, 12 Pick. 307 ; Bryant v. Ins. Oo. 22 Pick. 200.</p> <p>The jury found this fraud was committed by the party taking the note and the law presumes the plaintiff to be simply the agent of the perpetrator of the fraud. Bailey v. Bidwell, 13 M. & W. 73; Fitch v. Jones, 5 E. & B. 244, (85 Eng. Com. Law, 243) ; Smith v. Braine, 16 A. & L. 244, (71 Eng. Coin. Law, 251; Harvey v. Towers, 6 Exch. 656; Patón v. Ooit, 6 Mich. 505. This presumption of law was not overcome by the plaintiff in the evidence presented to the jury.</p> <p>Counsel admits that the plaintiff had notice of the obligation given the defendant, but denies that he knew its contents. But notice of the existence of a paper is notice of its contents. Pike v. Oollins, 33 Maine, 39 ; Bancroft v. Oonsen, 13 Allen, 50; Shaw v. Spencer, 100 Mass. 382; Sturtevant v. Jaques, 14 Allen, 523 ; Oonnihan v. Thompson, 111 Mass. 270; Bige-low on Fraud, 288 & 289.</p> <p>The plaintiff then had notice of the obligation. The note and obligation make but one contract, and the note is therefore nonnegotiable. Davlin v. Hill, 11 Maine, 434; 2 Pars. Bills & Notes, 534, 539; Bank v. Blanchard, 7 Allen, 334; State v. Stratton, 27 Iowa, 420, (1 Am. 283) ; Gushing v. Field, 70 Maine, 50.</p>

ON EXCEPTIONS from superior court, Cumberland county. Action of trespass quare clausum entered at the April term, 1878. On the fourteenth day of that term the defendant appeared and offered to be defaulted for $20, and the court ordered the offer to be accepted, if at all, before the first day of the next term.

<p> Attorney at law. Disbarment. </p> <p>When it is shown to the court that an attorney at law has violated his official oath, in that he has not conducted himself in his office with all good fidelity to his clients, the court is not only warranted but required to remove such a one from the office of attorney, and counselor of this court.</p>

<p>On report from tbe superior court, Kennebec county.</p> <p>Tbe facts sufficiently appear in tbe opinion.</p>

<p>ON REPORT.</p> <p>Writ of entry to recover real estate in West Gardiner.</p> <p>The will of the deceased wife of tbe defendant, Abagail P. Pinkbam, the material portion of which appears in the head note, made a part of the report as did the William W. Clark deed, wliich appears below; all other material facts appear in the opinion. The case was reported to the law court to determine the legal rights of the parties.</p> <p>(Deed.)</p> <p>"Know all men by these presents, That I, William W of West Gardiner, in the county of Kennebec, in consideration of fourteen hundred and forty dollars, [dollars] paid by Noah Pinkham of West Gardiner, trustee, (the receipt whereof I do hereby acknowledge,) do hereby give, grant, sell and convey unto the said trustee, his successors and assigns forever, a'certain lot of land in said West Gardiner, containing sixty-two acres more or less, with the buildings thereon, bounded north easterly by land occupied by Isabel and Oscar Hains, and by land of B. B. Robinson ; south easterly by land of Joseph Carlton and T. J. Neal; south westerly by land of T. J. Neal; and north westerly by Collins mill pond, being the same conveyed to William M. Clark, by deed of Peter Clark. . Clark, U.S. Int. Rev. Stamp. $1.50.</p> <p>"To have and to hold the same with all the privileges and appurtenances thereof to the said Pinkham, trustee, his successors and assigns, to their use and benefit forever. And I do covenant with the said Pinkham, trustee, his successors and assigns, that I am lawfully seized in fee of the premises ; that they are free from all incumbrances ; that I have good right to sell and convey the same to the said Pinkham, trustee, to hold as aforesaid. And that I will warrant and defend the same to the said Pinkham, trustee, his successors and assigns forever against the lawful claims and demands of all persons.</p> <p>"In witness whereof, I, the said William W. Clark, and Jane M. his wife, she relinquishing her right of dower in the premises, have hereunto set our hands and seals this twenty-sixth day of September, in the year of our Lord one thousand eight hundred and seventy one.</p> <p>Signed, sealed and delivered, -j in presence of H. K. Baker, > Julia A. McCausla™.</p> <p>Wm> (Seal.) M- Cmek' (Seia-></p> <p>"Kennebec, ss. September 26, 1871. Personally appeared the above named William W. Clark, and acknowledged the above instrument to be his free act and deed. Befox-e me,</p> <p>II. K. BaicKR, Justice of the Peace.”</p> <p>"Kennebec, ss. Received, September 28, 1871, at 2 H. 30 M., P. M.</p> <p>Entei’ed and compax’ed with the original, by</p> <p>P. M. Pooler, Register.”</p> <p>The will of Abagail P. Piukham, created no trust. Fisk v. Keene, 35 Maine, 349; Shaw v. Hussey, 41 Maine, 495; Doane v. Hcidlocle, 42 Maine, 72.</p> <p>Three things are indispensable to constitute a valid trust. (1,) Sufficient words to raise it. (2,) A definite subject, and (3,) A certain or ascertained object. 9 Yesey, 322 ; 2 Story’s Eq. § 964.</p> <p>Here the third indispensable requisite is entirely wanting, that is, there is no certain and ascertaiixed object. And all the requisites are uncertain. 1 Jarmon, Wills, 318 ; Morice v. Bishop of Durham, 10 Yesey, 536; Jones v. Hancock, 4 Dow. 145.</p> <p>If there was a trust it was void as to this plaintiff as there is no evidence of any actual notice to him. R. S., c. 73, § 12. The Clark deed disclosed no trust. It was not such a notice as the statute requires.</p> <p>The language of the judgment, upon which the levy was made, was as broad as the Clark deed. If the word "trustee” has any meaning in the one case it has in the other.</p> <p>Upon the defendant’s theory he had a life estate and that would pass by the levy. R. S., c. 76, § 7.</p>

AppletoN, C. J., Barrows and Libbev, JJ., dissenting, as to the admissibility of evidence here offered. ON EXCEPTIONS. Assumpsit on an account annexed against David W. Mosher and William K. Lancey, as co-partners, under firm name of D. W. Mosher & Go. The only question presented at the trial was whether the defendants were partnei’s. The plaintiff introduced in evidence three judgments of this court, rendered on default against these defendants as partners.

ON MOTION.- The facts appear in the opinion. In the defendants’ burial ground the nearest grave is two rods and nine links from the plaintiff’s sitting room window. The close proximity of the cemetery renders the enjoyment of the plaintiff’s dwelling house and well of water offensive and uncomfortable, constantly exciting apprehensions of disease; and it greatly injures the value and sale of plaintiff’s property.

EXCEPTIONS from superior court, Cumberland county. Assumpsit on the note given below, commenced November 19, 1878, entered at the December term, 1878, and tried by the justice without the intervention of a jury, at the March term, 1879, subject to exceptions in matteis of law. Plea, the general issue, with brief statement that the alleged cause of action did not accrue within six years before the date of plaintiffs writ. (Note.) $191.42. Portland, October 25, 1870.

On report from superior court, Cumberland county. An action to recover of the defendant, the proprietor of the Old Orchard House, at Old Orchard beach, as inn keeper, for money, watch, chain and ring of the plaintiff, of the agreed value of two hundred and eighty-seven dollars and seventy-five cents, stolen August 20, 1877, from a bath house, kept by the defendant on the sea shore, where persons, bathing in the sea, change their garments and leave their clothes, and where…

On motion and exceptions from the superior court, Cumberland county. The verdict was for $3000. The facts appear in the opinion. The law of the case is now well settled.

Bill IN equity, to obtain a construction of the will of Daniel E. Hall, and to obtain property claimed to belong to that estate. (Win.) Know all men by these presents, that I, Daniel E. Hall, of Auburn, county of Androscoggin and State of Maine, do hereby make, publish, and declare this my last will and testament : First. I give and bequeath unto Emeline Annie Hall, daughter of my brother Ivory F. Hall, the sum of fifty dollars, if she be living at the time of my decease.

<p>On exceptions axd MOTION.</p> <p>The facts appear in the opinion.</p> <p>cited: Utely v. Donaldson, 94 IJ. S. 49 ; Murray v. Harway, 56 N. Y. 347; Storm v. U. S. 94 U. S. 83; Cole v. Cole, 33 Maine, 542 ; Rowell v. Montville, 4 Greene, 270 ; Plummer v. Currier, 52 N. H. 287; Snow v. Bachelder, 8 Cush. 517; Greenl. on Ev. § 192; Perkins v. Railroad, 44 N. H. 225.</p> <p>On the questions raised by the exceptions :</p> <p>I. Upon the issue as to whether the contract between the parties was rescinded, the burden is on the plaintiffs, and does not shift. It is for them to show that the contract they rely on not only was once made, but was existing and in force when sued on. We say it never has been, and no longer could be performed, but was rescinded by its own limitations. Where the plaintiff disables himself from performing his contract, or assents to the acts of third persons which make its performance impossible, and the defendant is without fault, the defendant alone may abandon and rescind the contract on notice, whether the plaintiff assents or not. Chitty Contracts, 672, (10th edition). See Hoare v. Remins, 5 H. & N. 19 ; Coke Lit. (206, a) (206, b) ; Leake Contracts, 366. "And generally when one fails to perform his part of the contract, or disables himself from performing it, the other party may treat the contract as rescinded.” 2 Pars. Contracts, 678 ; Keys v. Harwood, 2 C. B. 905; Planche v. Colburn, 8 Bing. 906. "If the act of one party be such as necessarily to prevent the other from performing on his part according to the terms of his agreement, the contract may, I think, be considered as rescinded.” Dubois v. Canal Co. 4 Wend. 285.</p> <p>II. When the first subscription of this plaintiff was cancelled that was an end to the defendants’ agreement to pay the assessments on thirty-eight and one-half shares. It may be said that the defendants have received the $3,850, and that would be a continuing consideration. But a past and executed consideration can never support an express promise. Hopkins et ux. v. Logan, 5 M. & W. 241; Per Lord Denman, C. J. in Roscorla v. Thomas-, 3 Q. B. 234; Per Maulé, J. in Elderton v. Emmons, 4 C. B. 496.</p> <p>TIT. The plaintiffs seek to recover commissions here on an express promise, that is, a promise to pay for their services not a reasonable but a contract rate. Acts in the nature of estoppel can never raise an express promise but only such as the law' will imply, and that, if anything, w'ould be to pay not specific commissions, but a reasonable compensation for the plaintiffs’ time and services.</p> <p>TV. The instruction that the guaranty was a valid guaranty of existing subscriptions was erroneous. If the contract at this time applied only to new subscriptions, the guaranty was not valid, because it applied only to the old. If the contract still applied to the old subscriptions, then the guaranty was void because not given till subscriptions lapsed or cancelled. Even if the guaranty applied to existing subscriptions, it is not valid because without consideration, and therefore not enforceable by the company. A guaranty like every other promise must have a consideration to support it. Ware v. Adams, 24 Maine, 177 ; Tenney v. Prince, 4 Pick. 385. And this consideration must move from the plaintiff. Leake Contracts, 221, 313; Croio v. Rogers, Strange, 592; Price v. Pasión, 4 B. & Ad. 433; Smart v. Chell, 7 Dowd. 781; 2 Williams’ Saunders, 137, (g.)</p> <p>The plaintiffs did not notify the defendants that they had given the guaranty. The rule as established by the cases is that where the defendant contracts to pay on doing of some act by the plaintiff, "which when done, lies peculiarly or more properly in the knowledge of the plaintiff, notice thereof must be given or no liability attaches. 1 Cliitty Pleading, 360 ; 2 Williams’ Saunders, 62 (a) ; Leake on Contracts, 339 ; Dawson v. Wrench, 3 Exeh. 359 ; Ilipjmighall v. Lloyd, 5 B. & Ad. 742 ; Lent v. Padelford, 10 Mass. 230; Colt v. Hoot, 17 Mass. 229; Gobi) v. Morse, 1 Bulstrode, 44; Holmes v. Twist, Hobart, 51; Towle v. Hoggan, Cro. James, 492; Bradley v. Toder, Cro. James, 228; Hobart v. Hilliard, 11 Pick. 143; Babcock v. Bryant, 12 Pick. 132; Die v. Flanders, 1 N. II. 246; Watson v. Walker, 23 N. IT. (3 Post.) 471. The defendants object to that paid of the charge relating to the admissibility of an offer made by the defendants to reassign the mortgage and notes and to pay §1,000, as leaving to tbe jury a question of law. Whether the offer was by way of compromise and therefore not competent evidence is a question of law for the court, and not of fact for the jury. Davis v. R. R. 11 Cush. 506; Snow v. Batchelder, 8 Cush. 513; Lord Mansfield, 1 Buller, N. P. 236; Marsh v. Gold, 2 Pick. 284; Gerrish v. Sweetser, 4 Pick. 377 ; Dickinson v. Dickinson, 9 Met. 471; Snow v. Bachelder, 8 Cush. 516 ; Emerson v. Boynton, 11 Gray, 395.</p> <p>argued the questions arising on the motion to set aside the verdict as against evidence.</p>

<p> Salary of city physician of Lewiston. City ordinance. Vote. Contract of city marshal. </p> <p>A vote of tlie city council of Lewiston, tliat “the salary of city physician shall he at the rate of §200 per annum, in fta.ll for all fees for services rendered to paupers,” in compliance with a city ordinance, which also provides that no salary shall he altered during the year, establishes the salary of the city physician for the year to which it relates, and his compensation for the performance of all official duties.</p> <p>The city marshal has no authority to make any new contract with the city physician, or to pay him an extra compensation for performing services which he was under official obligations to render, nor could the overseers of the poor enlarge his salary.</p>

ON EXCEPTIONS. Writ dated August 4, 1877. Plea, general issue. Verdict was for -the defendant. At the trial, William H. Deaborn, called by plaintiff, testified in part as follows : Question. — Iiow long have you known this Dearborn boy who was driving Mr. Rackliff’s team? Answer. — I have always known him.

On exceptions and motion. At the trial the following receipt was put in evidence, and so much of the-judge’s charge as is given below was excepted to by the defendent. The other material facts appear in the opinion. (Receipt.) Farmington, December 5th, 1876.

On exceptions from superior court, Cumberland county. After verdict against the defendant, he filed a motion in arrest of judgment for reasons which sufficiently appear in the opinion. The motion was overruled by the presiding justice, and the defendant excepted. (Indictment.) State of Maine. Cumberland, ss.

<p>On report' from superior court, Kénuebec county.</p> <p>The case is stated in the opinion.</p> <p>cited: Preston et al. v. Drew, ."33 Maine, 558 ; Jones v. Fletcher, 41 Maine, 254; Robinson v. Barrows, 48 Maine, 186; Vining et al. v. Baker et al. 53 Maine, 544; Webber v. Davis et al. 44 Maine, 147; State v. Flatten et als. 49 Maine, 383; Moody v, Whitney, 34 Maine, .•■563; Fernald v. Chase, 31 Maine, 289; Smith v. Colby, 67 .Maine, 169; Freeman v. Underwood? 66 Maine, 229; State v. Plowley, 65 Maine, 100; State v. Erskine, 66 Marne, 360; it. JS., c. 27, § § 34, 35.</p> <p>contended ‘that what would be a reasonable time within which to- procure a warrant for liquors seized without a warrant depended upon the circumstances of each case. In this case it was procured within a reasonable time. If a warrant is issued it affords full and complete protection to the officer. That was done in this case. Robinson y. Barrows, 48 Maine, 186; Guptill v. Richardson, 62 Maine, 257 ; Nowell v. Tripp, 61 Maine, 426 ; Seelcins v. Goodale, 61 Maine, 400; JErskine v. Ilelmback, 14 Wallace, 613; State v. Miller, 48 Maine, 576; Heath v. Farnham, 53 Maine, 172.</p>

On report. The question presented by the report is tire sufficiency of the defendant’s plea in abatement, which was as follows : r'And now on the second day of said February term, to wit: February 25, 1880, said defendant corporation, by Nicholas Fessenden, their attorney, come and defend when, etc., where, etc., and tile this plea in abatement and pray judgment of the writ in aforesaid action, that 'the same may abate for want of service thereof, because said defendant…

<p>The opinion states the case.</p> <p>cited: High on Ex. Leg. Kem. §§ 624, 625, 638, 639; People v. Holden, 28 Cal. 123; People v. Oooh, 8 N. Y. 67; People v. Vail, 20 Wend. 12; People v, Jones, 20 Cal. 50; Commonwealth v. Go. Gom. 5 Rawle, 75; Opinion of the Justices, 54 Maine, 602; Morgan y. Quackenbush, 22 Barb. 77 ; People v, Van 8lyck, 4 Cow. 297 ; Ex parte Heath, 3 Hill, 47; Thompson v. Ewing, 1 Brewst. 77; State y. Governor, 1 Dutch. 348; Brower v. O'Brien, 2 Ind. 423 ; State v. Jones, 19 Ind. 356; People v. Hilliard, 29 Ill. 422; State v. Oavers, 22 Iowa, 343 ; Opinion of the Justices, 25 Maine, 568; Id. 38 Maine, 597; Id. 54 Maine, 602; Id. 64 Maine, 591', 596; Id. 68 Maine, 587 ; Bacon v. Go. Oomr's, 26 Maine, 494; Bennett, Pet'r, 32 Maine, 508; Jones v. State, 1 Kansas, 279; Strong, Pet'r, 20 Pick. 484; People v. Goolc, 14 Barb. 293 ; People v. Schemerhorn, 19 Barb. 540 ; Diclcey v. Hurlburt, 5 Cal. 343 McCrary’s Law of Elections, § 166 ; STcerrett's Case, 2 Parsons, 509 ; Commonwealth v. Meeser, 44 Pa. St. 343; Juicer v. Commonwealth, 20 Pa. St. 493; Piatt v. People, 29 Ill. 72; Taylor v. Taylor, 10 Minn. 107 ; People v. Bates, 11 Mich. 362; R. S., c. 3, § 8; Low v. Bunham, 61 Maine, 566 ; Milford v. Orono, 50 Maine, 529 ; Blalce v. R. R. 39 N. H. 437 ; Rogers v. Bowen, 42 N. H. 102; 1 Greenl. Ev. c. 2, § 6.</p> <p>The constitution is that instrument agreed on by the people as the absolute rule of action and decision for all departments and officers of the government, in respect to all the points covered by it. By it, the legislature holds all the. powers of the people, except those expressly withheld; but the executive and judiciary, none except those expressly given. Cooley Con. Lim. 139, n. 1.</p> <p>We deny the doctrine that the provisions of the constitution are directory and not mandatory. If mandatory then the Portland return was fatally defective as it did not contain the names of all persons voted for as county commissioners.</p> <p>The counsel contended in a very elaborate and able argument that the act, by the authority of which this proceeding was brought, has not the force of law because it was not enacted by a lawful legislature, nor approved by a lawful governor, and cited: Hon. Geo. F. Hoar, U. S. senator from Massachusetts, in the Kellogg-Spofford debate in U. S.. senate; the decision of the quo warranto to the House in 1604, in the dispute between King James and the British .House of Commons; Fischel’s British Constitution, 442 ; Haversham Cox on Institution of the English Government; Goodwin v. Fortescue, 2 State Trials; Caesar Griffin’s Gase, Chase’s Decisions, 364; Fitchburg Go. 1 Allen, 557 ; Goolidge v. Brigham,, Id. 333; Benny v. Mattoon, 2 Allen, 384; Hooper v. Goodwin, 48 Maine, 79 ; Opinion, Kent, J., 58 Maine, 572 ; Opinion of Justices, 126 Mass. 556 ; Opinion of Justices, 120 Mass. 602 ; 16 Maine, 483 ; State v. Brown, 5 R. I. 1; High, Ex. Rem. § § 620, 625, 627, 638, 639; State v. Ilunton, 28 Yt. 594; People v. OooJc, 8 N. Y. 67; People y. Pease, 30 Barb. 588 ; Cooley’s Con. Lim, pp. 786, 787, 623 ; 35 Maine, 590 ; 38 Maine, 599. Opinion of Majority of Electoral Commission on the Louisiana Electoral Vote; Hadley v. Mayor of Albany, 33 N. Y. 603 ; Glarke v. Buchanan, 2 Minn. 346.</p> <p>A certificate or summons coming from the canvassing board, held by a member, to attend and take a seat, entitles him to the seat until he is ousted on contest. Bennett, Petitioner, 32 Maine, 508; Opinion, 117 Mass. 600; People v. Miller, 16 Mich. 56; Boss v. Baxster, 35 Penn. St. 263; Ilulseman et al. v. llems et al. 41 Penn. St. 401; Kerr v. Trego, 47 Penn. St. 292; People v. Goolc, 4 Selden, 68 ; Headly v. Mayor, 33 New York, 606 ; State v. Cleric Passaic, 1 Duteher’s Reports, (N. J.) 354; Briggs v. Ohurchill, 15 Minn. 455; State v. Wharton, 25 La. 3; Gollins v. Knobloch, 25 La. 263 ; Bonner v. Lynch, 25 La. 267 ; Overseers v. Yarrington, 20 Yt. 473 ; Morgan v. Quaclc-enbush, 22 Barb. 72; Goolidge v. Brigham, 1 Allen, 335 ; Patterson v. Miller, 2 Met. (Ken.) 497.</p> <p>His title is so far good that a court, in absence of proof to the contrary, is bound to presume him to be a de jure incumbent. Poell v. McBonald, 7 Kans. 426; Willis v. Sproule, 13 Kans. 257 ; Higgs v. State, 49 Ala. 32.</p> <p>It is settled in numberless cases, that in quo warranto, the court will go behind a certificate and ascertain the fact of election. People v. Van Slyck, 4 Cow. 297 ; People v. Ferguson, 8 Cow. 102; Jeter y. State, 1 McCord, 233; People v. Vail, 20 Wend. 12; Bashford v. Barstow, 4 Wis. 567; Hill v. State, 1 Ala. (N. S.) 559.</p> <p>The entire body of authorities is an admission that the possession of a certificate is a legal title which requires judicial investigation to set aside. It never was contradicted till now. This is too great an oversight to be allowed to stand.</p> <p>The summons is a title to the seat, coming from the authorized body who issue it in the first instance. A title, it is true, capable of being overthrown, but the legal title till overthrown, and in the prescribed way. The way is, the question being judicial in its nature, that the appointed judges must try it, the house.</p> <p>It has never been tried, for there can be no trial, in a legal sense, where there is no hearing. All that has taken place has occurred by an opinion. And it can never be said that there were never any members legally placed in the disputed seats except those certificated by summons. They have never been legally ousted. Com. v. Jones, 10 Bush: 726. When the inquiry to be made involves questions of law as well as fact, when it affects a legal right, and the decision may result in terminating or destroying that right, the power to be exercised and the duties to be discharged are essentially judicial. A summons is issued by the constitutional authority to take a seat. By means of it, the holder acquires a legal title till disputed. The disposal of this right is, in its nature, a judicial proceeding, by trial of fact and law. The house tries it. The court never, anywhere, but if it could, not in an opinion; yet under this advisory process, the court did adjudge seats to persons and against others by means of questions, numbers three and four of second series.</p> <p>Any process to try right of office is essentially similar to quo warranto. Jury trial, 22 How. 182, Incumbent properly elected, but not being sworn into office may be ousted. High’s Extraordinary Legal Remedies, § 760. In re Mayor of Penryn, Stra. 582. Office cannot be held at the same time by a de jure and a de facto incumbent. Boardmcm et al. v. Halliday, 10 Paige, Ch. 223 ; Morgan v. Quaclcenbush, 22 Barb. 79 ; King v. Mayor of Colchester, 2 Term R. 260 ; Gardner v. Collector, 6 Wallace, 499. Act of passing and of approving a law in an official capacity.</p>

On report. The law court to render such judgment as the law and evidence require. The report shows that William McGilvery died March 9, 1876. Other facts appear in the opinion. cited: 2 Pars.

<p> Deed of mortgagee, before entry of foreclosure without assignment of mortgage debt, conveys no title. </p> <p>A quit claim deed of mortgaged premises, made by tlie mortgagee, before entry under Ms mortgage or foreclosure of the same, and not accompanied by an assignment of the mortgage debt or any portion of the same, will not convey any title to the real estate.</p> <p>The interest in the land is inseparable from the mortgage debt, to which it is incident, and from which it cannot be detached.</p>

<p>Appeal from the judgments upon petitions under stat. 1880, c. 198.</p> <p>The petition of Charles B. Rounds v. Ephriam, K. Smart, related to the office of county attorney for Washington county; Ignatius Sargent v. Joseph Wilder, Jr., to the office of county treasurer for same county; and Robert F. Campbell, v. Henry L. Watts, to the office of county commissioner. The respondents joined in the appeal, severally appealing from the several judgments, and the three cases were heard together.</p> <p>cited: Lovell v. Farrington, 50 Maine, 239 ; Opinion, 25 Maine, 569 ; Brightly’s Election Cases, 381,382,383, n. and cases cited, 436,4-37 ; People v. Vail, 20 Wend. 12; Com. v. Co. Comr’s, 5 Eawlo, 77; People v. Van Slyck, 4 Cow. 297 ; People v. Ferguson, 8 Cow. 102; 1 Brewst. 69 ; 43 Pa. St. 384; 17 Ark. 407 ; 45 Mo. 453 ; High on Ex. Rem. 638.</p> <p>By the statute under which these petitions are brought, the justice of this court who orders the notice, is the one and only one before whom they should be returnable — the only one who has jurisdiction. The petitions for that cause should have been dismissed.</p> <p>The petition should allege and the evidence prove the eligibility of petitioner. The statute of 1878 says, "no person ineligible shall be declared elected.” The petitioner neither alleges nor proves that fact.</p> <p>The whole matter of election is controlled by the constitution and laws in existence at the time the election is called and held'. The determination of the election to the offices in question, is left by the constitution and laws with the executive branch, with no right of appeal to any other tribunal. (See 3 Maine, 477, 484.) Opinion, 25 Maine, 567. The Governor and Council could not go behind the returns.</p> <p>The respondents were duly certificated, and qualified and entered upon their duties. The rights thus vested and enjoyed the petitioners claim are affected, impaired and destroyed, not by any law in existence on the day of the election nor at the commencement of their several terms of office, but by a law passed March 6, 1880. (Stat. 1880, c. 198.) That law in its application to past events is unconstitutional. 23 Maine, 308 ; 2 Maine, 275 ; 3 Maine, 326.</p> <p>The return from the city of Calais was defective and could not be counted by the Governor and Council. See opinion of the court, 68 Maine, 587, upon defective returns. See 'also 64 Maine, 590; Opinion of January 3, 1880, (70 Maine.)</p> <p>Throwing out Calais the respondents were elected.</p>

The case is stated in the opinion. The authority to annul and vacate proceedings in insolvency, has been exercised by the court in Massachusetts under similar statutory provisions. Thompson v. Thompson, 4 Cush. 127 ; Buck v. Soples, 9 Met. 459; Cheshire Iron Works v. Gay, ■ 3 Gray, 531; Glafiin v. Beach, 4 Met. 392 ; Dearborn v. Keith, 5 Cush. 224; Phillips v. Parker, 2 Cush. 175; Kimball v. Morris, 2 Met. 580.

On exceptions and motion. Writ of entry to recover possession of land in Waterville, dated October 13,1877. Plea, general issue. (Exceptions.) The defendant excepts to the admission of evidence offered by the plaintiff and objected to by the defendant; and to the rejection of evidence offered by the defendant and excluded by the court in the several instances hereinafter named. 1.

<p> Trespass. Sheriff; acts of deputy. Withdrawal of pleadings. Practice. </p> <p>An action of trespass will not lie against a slieriff for tlie act of liis deputy in taMng possession of property attached by him on a writ while acting as deputy of a former sheriff, no judgment having been rendered on the writ, and the possession being demanded and received, by virtue of a receipt taken of the plaintiff and another at the time of the attachment, in which they agreed to safely keep the property attached, and deliver it to the officer on demand.</p> <p>The presiding justice has discretionary power to allow a defendant to withdraw his brief statement, even after the plaintiff has rested his case.</p>

The opinion states the ease. It is a settled rule in construing statutes, that they are to be considered prospective, unless the intention to give a retrospec-. tive operation is clearly expressed. Hastings v. Lane, 15 Maine,, 134; Rogers v. Gtreenbush, 58 Maine, 397; Whitman v. Hapgood, 10 Mass. 439; Gerry v. Stone/tam, 1 Allen, 319 Dash v. VanKleeck, 7 Johns. 502. Proceedings ii~ insolvency may be considered an action pending and not to be affected by legislation.

<p> Poor debtor’s bond. Surrender to jailer. Copy of the bond or of the exeeution and return to be given jailer. </p> <p>To save the penalty of his bond by performing its last condition, a poor debtor must seasonably “ deliver himself into the custody of the jailer” and be received into jail, or deliver himself to the jailer at the jail in such a manner as will make it the duty of the jailer to receive him into custody in the jail. To make it the duty of the jailer to receive a debtor the latter should not only seasonably offer to deliver himself, but at the same time to deliver to the jailer a copy of the bond, or of the execution and return thereon, at the jail.</p>

Bill m equity, beard on bill, answer and proof. In accordance with tbe opinion and order of tbe court in tbis case, reported 69 Maine, 293, Fifield Mitcbell was summoned in and made a party to tbe suit.

<p>On MOTION.</p> <p>The case is stated in the opinion.</p>

<p> Pauper settlement. Change of residence. Necessity for pauper supplies. </p> <p>The question of the intent of a person in removing from one town to another, whether it was a change of residence — an abandonment of it in one town and taking it up in another, or a pretence — removing with intent to return, is for the jury in an action for pauper supplies subsequently furnished to such person.'</p> <p>The fact that there was a small sum due a pauper, when supplies were furnished is not conclusive, that the verdict for the plaintiffs, in an action to recover for such supplies, was against evidence upon the question of necessity.</p>

<p>On report.</p> <p>Replevin of a stock of furniture in a store on Lisbon street, Lewiston. The plaintiffs claimed under a chattel mortgage, the material portions of which are given in the opinion. The defendants did not deny the plaintiffs’ title to a portion of the goods replevied, but claimed that since the execution of the mortgage, they had purchased on credit, and not with the proceeds of any portion of the goods mortgaged, other goods, which at the time of the trial liad not been paid for, and that such goods purchased on credit and not yet paid for, could not be held under the mortgage, and were improperly included in the replevin writ. Plea was the general issue, with brief statement claiming title to a portion of the goods replevied.</p> <p>Plaintiffs offered to prove that they were led by defendants to believe that the stock in the furniture store at the time of replevy-ing the same was the stock covered by mortgage, that plaintiffs had no knowledge of purchases of furniture by defendants upon credit,- that no notice had ever been given by defendants to plaintiffs that they claimed the stock or any part of it until this case was opened for trial; that no articles at any time were pointed out by defendants as owned by them or any other person until this case was opened to the jury, and until that time no statement or schedule of goods claimed by defendants or any person besides them was made known to the plaintiffs; that plaintiffs had no knowledge until service of replevin writ, September 12, 1876, that the stock had been reduced in value below $6,500; that defendants had always represented to them that the stock was kept up to value of $6,500, but in fact, on the day of service of replevin writ, September 12, 1876, the value of the stock was only $4,400; that the furniture and stock replevied was put into the store in the ordinary way for sale, and that the defendants put into the stock the articles after the date of the mortgage up to time of replevin for the purpose of keeping up the stock in trade, and that plaintiffs had relied upon the facts offered; that the value of the stock at time of sale from plaintiffs to defendants, November 15, 1875, was $7,822, and September 12, 1876, at time of replevying, there was due on the mortgage about $3,700, and that note of $500 falling due August 17, 1876, had not been paid, and that there was a breach of the conditions of the mortgage.</p> <p>The presiding judge was of the opinion that goods purchased on credit after the execution of the mortgage and still unpaid for, would not be covered by the mortgage, and could not be held thereunder in .this action by the plaintiffs against defendants, who claim title to them, and ■ that the defendants could not be precluded by the mortgage and facts offered to be proved from showing that the goods’ claimed by them were not covered by the mortgage. Thereupon a verdict was taken, pro forma, that defendants did not take the goods shown to have been purchased upon credit by defendants after the execution of the mortgage, and still remaining unpaid for, comprising about two hundred articles of the value of about $2,000, and that defendants did take the remaining articles named in the officer’s return of the value of about $2,300 ; and it was agreed that the case should be reported to the full court. If in the opinion of the full court the facts proved and offered to be proved by the plaintiffs, do not show claim to secure their debt upon the whole stock replevied, then judgment to be entered on the verdict; otherwise .new trial granted.</p> <p>cited: Sylvester v. Staples, 44 Maine, 496; Braman v. Dowse, 12 Cush. 227 ; Hoolcer v. Hubbard, 97 Mass. 175 ; 1 Greenl. Ev. § 22 ; White Mountain Bank v. West, 46 Maine, 15; Tapfield v. Hillman, 46 E. C. L. 245; Morrill v. Noyes, 56 Maine, 458 ; JRowan v. M’f’g. Go. 29 Conn. 328 ; Holly v. Brown, 14 Conn. 255; Walker v. Vaughn, 33 Conn. 583; Abbott v. Goodwin, 20 Maine, 408; Noon v. Salisbury Mills, 3 Allen, 340.</p> <p>The cases of Tapfield v. Hillman and the Connecticut cases cited by counsel hold the opposite rule to that laid down and settled in this State in Morrill v. Noyes, 56 Maine, 458. ■ Counsel cited: Burnard v. Baton, 2 Cush. 294; Moody v. Wright, 13 Met. 17 ; Jones v. Bichardson, 10 Met. 481; Chapin v. Or,am, 40 Maine, 561; McCaffrey v. Woo din, 67 N. Y. 459, (22 Am. 644); Williams v. Briggs, 11 R. I. 176, (22 Am. 653) ; Cook v. Oortkett, 11 R. I. 482, (23 Am. 518).</p> <p>The dpctrine of estoppel does not apply to this case because it does not appear from the evidence offered that the plaintiffs acted or omitted to act upon the belief which they offered to prove. It is only upon the evidence offered not the conclusions therefrom that plaintiffs must rely. It is to be noticed plaintiffs offered to prove that the defendants had always represented to them, the stock was kept up to the value of $6,500. But they do not offer to prove that the defendants represented they were not purchasing on credit.</p>

<p> Evidence. Exceptions. Practice. Cross-examination. Collateral inquiries. </p> <p>In a suit against a sheriff who justifies under process against the plaintiff’s vendor, proof of the insolvency of the plaintiff’s agent, who was also her husband, and of former and distinct transactions between him and the vendor, of which plaintiff had knowledge and which were fraudulent against creditors, is not admissible to show fraud on the part of the plaintiff in the transaction which is the subject of investigation,</p> <p>While the proof of fraud will necessarily, in general, consist of circumstantial evidence, and he, on whom the burden of proof rests, should be allowed to show all the circumstances connected with the case, tom which a fair inference may be drawn, he cannot be permitted to consume time and raise collateral issues respecting independent transactions in former years. No one can be expected to come prepared to defend or explain all the transactions of his own life — still less those of others within his knowledge in which he was not concerned, and over which he had no control. No safe or legitimate influence can be drawn from such matters though they might tend to prejudice and confuse a jury.</p> <p>Neither can exceptions be sustained for the exclusion of testimony on cross-examination unless they set forth enough of the previous testimony to show that the exclusion was erroneous.</p> <p>As to all collateral inquiries, the determination of the presiding judge in the exercise of his discretion to exclude them is final.</p> <p>No complaint is now made of the instructions to the jury. The requested instruction was rightly refused; for if there was any testimony upon which it could be based, it called for an instruction as matter of law when the question was rather one of fact for the jury.</p>

<p>ON exceptions from superior court, Cumberland county.</p> <p>The case is stated in the opinion.</p> <p>contended that if there was an express or implied assent on the part of defendant for his son to use the horse and carriage at the time when the damage was done, or if the defendant intrusted his son with the use, management and control of his teams whenever the son wished, then the defendant would be liable. Wharton on Negligence, § 166 ; Sleath v. Wilson, 38 Eng. C. L. 249 ; Goodman v. Taylor, .24 Eng. C. L. 385; Lashbrook v. Patten, 1 Duvall, (Ky.) 316.</p> <p>cited: Beaver v. Taylor, 93 U. S. 46; State v. Peed, 62 Maine, 139; State v. Pike, 65 Maine, 111; McIntosh v. Bartlett, 67 Maine, 130; Harriman v. Sanger, Idem, 442; Hawks v. Charlemont, 107 Mass. 414; Howe v. Newmarch, 12 Allen, 49; Levi v. -Brooks, 121 Mass. 501; Barden v. Fetch, 109 Mass. 154; Chandler v. Deaton, 37 Tex. 406 ; Wilson v. Garrard,- 59 Ill. 51; Paulin v. Howser, 63 Ill. 312; Fdwards v. Krume, 18 Kansas, 348.</p>

<p>On exceptions.</p> <p>By the disclosure of the trustees it appeared that they were indebted to the defendant for his personal labor in April and May, (ending May 14th,) 1878, in the sum of $60. His wages were $2 per day, and $6 had been paid. The writ was served upon the trustees May 11, 1878, and a second service was made June 21, 1878. Other material facts appear in the opinion.</p>

<p> Insolvent law. Provable debts. Contingent liabilities. </p> <p>A contract given by one partner to another to assume all the debts of the firm, and save him harmless therefrom, is not such a claim as may be proved against the estate of the obligor in insolvency until there has been a breach. It is not a contingent debt nor a contingent liability, for until the breach, there is no liability. The contingency is whether there ever will be a debt or liability.</p> <p>Nor is there any claim for unliquidated damages, for until the broach there arc no damages to be assessed.</p> <p>A contingency, depending upon a breach of a contract by one of the parties, is not such as is required under the insolvent law to mate a contingent debt or liability.</p>

<p> Trustee service. Gontinyent debt. Drafts. </p> <p>When the indebtedness of the trustee to the principal defendant is not absolutely due, but is contingent, and is to be paid, when due, by drafts payable to the trustee and indorsed by him to the defendant, the trustee will be discharged.</p> <p>If the trustee had received the drafts with which he was to pay the defendant he would not be chargeable, much less is he chargeable when he has received nothing, and it is contingent whether he ever will.</p>

<p>On report.</p> <p>Covenant broken.</p> <p>The opinion states the case.</p> <p>cited: 4 Kent Com. 9*, 471*, 472*; Bell v. Twilight, 26 N. H. 401; Blanchard v. Broolcs, 12 Pick, 47; Loomis v. Bedel, 11 N. H. 86; Sweet v. Brown, 12 Met. 177 ; Kimball v. Blaisdell, 5N. H. 533 ; Miller et als. v. Fvdng, 6 Cush. 40; (Joe v. Persons unknown, 43 Maine, 436 ; 2 Wash. K. P. 660*, 667* ; Gurtis v. Peering, 12 Maine, 499; Hill v. Bacon, 110 Mass. 388; Gole v. Lee, 30 Maine, 397; Thayer v. Glemence, 22 Pick. 494; 5 Am. Eep. 149; 1 Chit. PI. 17*, 19*, 21*; Griffin v. Fairbrother, 10 Maine, 91; Wendell v. Abbott, 43 N. H. 73 ; Abbot v. Banfiéld, Mem, 155; Freeman v. Atwood, 50 Maine, 474; Orooker v. Jewell, 29 Maine, 530; Ohase v. Weston, 12 N. H. 413; Wheeler v. Solder, 3 Cush. 222; Buss v. Perry. 49 N. H. 551; Olark et al. v. Swift, 3 Met. 392 ; Ballard v. Ghild, 34 Maine, 356, and many other authorities.</p> <p>contended that the action could not be maintained, but if it could, only nominal damages would follow.</p> <p>The plaintiff’s devisor lost his title some three years before his death and before he made his will. At that time he had no interest in the premises which he could devise or will. And no title nor interest in the premises passed to the plaintiff and the covenants in the defendant’s deed did not pass to her. Her devisor was a mere tenant at sufferance after April, 1863. 4 Kent Com. 116 ; Sanders v. Bichardson, 14 Pick. 522 ; Kinsley v. Ames, 2 Met. 29 ; Hollis v. Pool, 3 Met. 350; Greech v. Grockett, 5 Cush. 133; Hamilton v. Cutts, 4 Mass. 352; Gomings v. Little, 24 Pick. 266.</p> <p>The measure of damages is not the value of the land but the the value of the defendant’s right, title and interest. Goe v. Persons unknown, 43 Maine, 432.</p>

On report. This is an action brought by the plaintiff in his capacity as administrator de bonis non, with the will annexed, of the estate of Asa Redington, deceased, for the conversion of fifty shares of the capital stock of the Little Androscoggin Water Power Company. It was admitted that the stock in question ivas the property of Asa Redington in his life time; that John G-.

<p> Participators in misdemeanors. </p> <p>It is a rule of the common law of universal application that all participators in a misdemeanor are principals. Each is severally liable.</p>

<p>ON MOTION AND EXCEPTIONS.</p> <p>The opinion states the case as considered by the law court.</p>

<p> Devise. Easement. Eight of way. Parol agreement. </p> <p>By tlie devise of a house and lot, a right of way, held and enjoyed hy the devisor, to and from the same over adjoining premises, will pass to the devisee, although it is not named in the will.</p> <p>Where the grantor in a deed reserved a right of way across the premises conveyed, without fixing its locality, and at the time of the conveyance two ways were in use, one of which was afterwards closed hy the grantee with the assent of the grantor; Held, that the grantor retained aright over the other and remaining way, and if it is conceded that a grantee may designate the locality for a way, thus reserved, he has not a right to huild a fence across the only path where passage was practicable.</p> <p>Where a deed contained this clause: “reserving a pass way from the road aforesaid, over or hy said lot to the ham standing on the adjoining lot, being said Mary’s [grantor’s] dwelling house lot;” Held, that it contained a reservation of a right of way to the dwelling house lot for such purposes as a way to the barn appurtenant to the dwelling house might properly be used, and that it was not lost by the destruction of the barn standing thereon at the time of the reservation.</p>

<p>ON EXCEPTIONS.</p> <p>The opinion states the case.</p> <p>cited: 16 Conn. 12 ; 36 N. Y. 26 ; 23 Maine, 461; 2 Paine, C. C. 202 ; 17 Maine, 147 ; 45 Maine, 590; Abbott on Ship. 4th Am. ed. 76, 69; Putnam v. Wood, 3 Mass. 485 ; 50 Maine, 447; 5 Selden, (9 N. Y.) 235; Elder v. Larrabee, 45 Maine, 590; 8 Wend. 144; 1 Parsons on Ship. 101.</p> <p>The vessel was in a home port where the master could not bind the owners. Jordan v. Young, 37 Maine, 276. Charles Peters, the husband of the other owner, was not the ship’s husband; two of the owners never knew of his acting or assuming to act in the affairs of the vessel.</p> <p>1 Parsons on Ship. & Adm. 109, 111, 112 ; 3 Kent’s Com. (12tk ed.) 152. And Mrs. Peters, in making her husband her agent to transact the ship’s affairs, made him the agent of the other owners without their knowledge or consent. This she could not do. If she had any authority herself she could not delegate it to another. Story on Agency, § § 13 and 14.</p> <p>But a part owner has not a general authority to bind his co-owners and no authority to bind those who are not absent. 3 Kent’s Com. 156, n. 1, on p. 155 ; Brodie v. Howard, 17 C. B. 109 (33 Eng. L. & Eq. 146) ; 1 Pars, on Ship. & Adm. 101.</p> <p>Before a party can be holden for want of a dissent — because he has not objected, he must have an opportunity to dissent, to make objections. Elder v. Earrabee, 45 Maine, 590, seems to be decisive of this case upon this point.</p>

On report. Assumpsit against the owners of schooner Hudson, for supplies :and materials furnished to the vessel. It appeared from the testimony of J. R. Grover, that ho was master of the vessel, sailed her on shares, contracted the bill hi suit in behalf of the owners, and by their authority, and. that it did not belong to him while sailing the vessel on shares, to furnish any of the articles sued for, at his own expense.

ON exceptions from the superior court, Cumberland county. The opinion states the case. The defendants are so far a corporation as to take in succession all grants and donations of real and personal estate made to their churches or to them and their successors.” B,. S., c. 12, § 19.

<p> Exceptions. Statute of frauds. Requested instructions. Practice. </p> <p>The plaintiff and certain others advanced a sum, of money to the defendant for the purpose of paying a mortgage on a certain meeting house, upon an alleged oral promise of the defendant to appropriate the money to that purpose and to cause the meeting house to he conveyed to the plaintiff and his associates, which latter promise the defendant refused to fulfill, alleging in defence that he was acting as agent of the Methodist Episcopal Society of the place and that the plaintiff knew it. In assumpsit by the plaintiff to recover the money advanced by him; Held, that an exception “to that part of the charge which connects the ‘trustees of that church’ with the case at bar,” is too general, when eight of the eleven pages of the charge mentions the subject matter of the exception.</p> <p>Also held, that the refusal to instruct the jury, that if the defendant at any time, had become a party to an agreement with the plaintiff and others, that the church property should be conveyed to the plaintiff in consideration of money paid to him by the plaintiff and others, and the defendant as trustee or otherwise, held the property under his control, the verdict should be for the plaintiff, if the defendant neglected to make such conveyance, affords no ground to the plaintiff for exception, especially when there is no evidence that he held the property under his control as trustee or otherwise.</p> <p>An oral- contract to execute and deliver a deed of real property is within the statute of frauds.</p> <p>An exception to the refusal to give a requested instruction will not be sustained, when the request is not based on some specific evidence in the pase.</p>

<p> Contract. Orders. Certificate. Agreement. </p> <p>Where J. agreed with B. to take the orders of H. in payment of goods sold B., a certificate from II. of the amount due to B. from H. is not a compliance with the agreement, and constitutes no defence to an action brought by S. against B. to recover pay for the g-oods thus sold.</p>

<p>ON REPORT.</p> <p>An action against the executors of the last will and testament of Going-Hathom, to recover the amount of a subscription made by the testator to the building fund of the Maine Central Institute. The only averment in the declaration of notice of the claim and demand of payment, is as follows:</p> <p>"And the plaintiffs aver .... that more than one year, and not exceeding two years, have elapsed since the appointment of said defendants as executors aforesaid, and that more than thirty days have elapsed since said plaintiffs gave notice in writing to said executors of the claim aforesaid, and that notice was so given in writing by said plaintiffs, to said defendants, on the fourth day of March, A. D. 1877, of the claim aforesaid.”</p> <p>The writ was dated April 30,1877, and entered at the September term, 1877. At the March term, 1880, the defendants filed a general demurrer. After the demurrer was filed and before joinder the plaintiffs asked leave to make the following amendments :</p> <p>(Amendments.)</p> <p>"Supreme Judicial Court, Somerset county, March term, 1880. And now the plaintiffs move to amend the first and second counts in their writ by adding at the end of each, the words, 'and the plaintiffs aver that said claim was presented in writing to said defendants, executors as aforesaid, and payment thereof demanded, on the fourth day of March, A. D. 1879, which was more than thirty days before the commencement of said action, and that more than one year and less than two years have elapsed since notice of defendants’ appointment as executors was given by them.’</p> <p>The remaining facts appear in the opinion.</p> <p>The objections to the declaration are raised only by general demurrer.</p> <p>All objections to the form of pleading must be by special demurrer. This demurrer being general, the defects, if any, to be considered, are only those of substance. Chitty on Pleadings, vol. 1, 9th Am. ed. 662; Neal v. Hanson, 60 Maine, 86.</p> <p>■ It is well settled that a demurrer to a declaration containing several counts cannot be sustained, if any one of such counts is good. And if the third count in the writ, which is more full and specific than the others, is good, the sufficiency of the others is immaterial.</p> <p>The allegations of. notice, required by statute of 1872, c. 85, § 12, are, we think, sufficient. The time of the presentment of the claim, in writing, to the proper persons is stated, and that it was more than thirty days before the commencement of the action, and within two years after notice of defendants’ appointment.</p> <p>It is .true it does not say, in so many words, that payment was demanded, but the words used are equivalent to that, its meaning is unmistakable, and the pleader here seems to have used the same language in calling it notice as that used by the court in speaking of the same subject matters in Baton v. Bus-well, 69 Maine, 552.</p> <p>It clearly comes within the provisions of § 9 of c. 82, E. S., that no process shall abate, &e., for want of form only, when the case can be rightly understood.</p> <p>Besides, here is a general demurrer only, and had the allegations been omitted altogether it would have been sufficient. Laws on Pleadings,* page 241.</p> <p>But it is clear that when some allegations of notice are made, as here, it is no longer cause of general demurrer, but the objections must be assigned as cause for special demurrer. Laws on Pleadings,* pages 229 and 245 ; Chitty on Pleading,* pages 663 and 664; Boiudell v. Parsons, 10 East. 364.</p> <p>We insist, therefore, that the third count is good, both in substance and form. It sets out the written promise of Hathorn,. states the consideration therefor, that defendants, relying upon such promise, have expended large sums of money and been otherwise injured, and that plaintiffs gave the notice required by the statute to the defendants.</p> <p>It appears that all the counts are based upon the same promise. Only one notice to the executors was required; at a trial, proof of one would be sufficient. The law favors brevity and conciseness in pleading, and to repeat such allegation of notice at the end of each count would make the pleadings unnecessarily long, and furnish no information not already furnished to the defendants, or additional aid to the court in rightly understanding the case. And we submit that, standing as it does at the close of the declaration in the writ, it may, with propriety, and should be, treated as a general allegation, applicable alike to each count. Vide Chitty on Pleading, page 726.</p> <p>If the declaration is held insufficient, the plaintiffs should be allowed to amend the first and second counts, as prayed for. E. S., c. 82, § 9 ; Simpsoti v. Norton, 45 Maine, 284; Rowell v. Small, 30 Maine, 30; Pullen v. Hutchinson, 25 Maine, 252; E. S., c. 82, § 19 ; Fryeburg v. Brownfield, 68 Maine, 147.</p> <p>cited; Stat. 1872, c. 85, § 12 ; Baton v. Buswell, Adm. 69 Maine, 552; Cottage Street Church v. Kendall, 121 Mass. 529 ; Miriclc v. French, 2 Gray, 423; Farmington Academy v. Allen, 14 Mass. 172; Trustees Bridgewater Academy v. Gilbert, 2 Pick. 579 ; Foxcroft Academy v. Favor, 4 G-reenl. 382; E. S., c. 82, § 19; Wake-field y. Littlefield, 52 Maine, 22; Crocker v. Craig, 46 Maine, 327; Fathom v. Towle, 46 Maine, 302; Fryeburg v. Brownfield, 68 Maine, 147.</p>

On Report, the law court to render such judgment as tlie law and evidence require. The facts appear in the opinion. cited: Ward v. Shaw, 7 Wend. 404; Houdlette v. Tallman, 14 Maine, 400; Benjamin on Sales, §§ 319-325, 703, 140; Morrison v. Dingley, 63 Maine, 553; 2 Pars. Contr. 95, and authorities cited; R. S., c. 91, § 7 ; Page et al. v. Hubbard etal.

<p> Practice. Verdict. Party. Witness. </p> <p>Though a verdict lias been rendered in favor of a defendant, lie still remains a party to the suit until the entry of a judgment on the verdict.</p> <p>In assumpsit the court will not allow a verdict to be rendered for one defendant, to enable him to testify' in favor of his co-defendants, the plaintiff objecting thereto.</p>

On exceptions. The case is stated in the opinion. The report shows that the defendants in this action had been summoned as trustees in two other actions against the plaintiff. cited: 2 Pars. Confer. 519; 65 Maine, 302; 31 Maine, 555 ; 11 Met. 412 ; 1 Gray, 131; 19 Pick. 364; 3 Pars. Confer. 36, 17 ; 1 Pars. Confer. 455 ; 29 Conn. 515 ; 2 Kent’s Com. 467 ; 6 Cush. 512 ; 2 Wharton Ev. § § 907, 912; 58 Maine, 218; 16 Conn. 250; 9 Allen, 14; 5 Gray, 41.

On exceptions. On trustee disclosure. (Disclosure of the alleged trustees.) ’. . .

Bill in equity, heard on bill, answer and proofs. The facts sufficiently appear in the opinion. in an elaborate argument, cited: Abbott v. Goodwin, 20 Maine, 409; Adams v. Wheeler, 10 Pick. 199; Adlum v. Yard, 1 Kawle, 163 ; Alsopp’s Oase, 1 De G-ex F. & J. 289; American Leading Cases, 74 (4th ed.) ; Angelí and Ames on Corporations, § 191; Atwood v. Protection Insurance Go. 14 Conn. 436 ; Bacon’s Abr. Tit.

<p> Contract. Ratification. Statute of frauds. </p> <p>A letter written by one brother to another in relation to the latter’s returning home and supporting their parents, but written without their knowledge ox-request, in which the writer says, ‘ ‘ I suppose they would give one-half the farm and hold the other as security for their maintenance while they lire,” does not bind, nor does it purport to bind the father or any one else.</p> <p>The remark of the father when the existence of the letter was first brought to his knowledge, that “it was all right and that he intended to carry it out just as it was wx-itten there,” does not constitute a contract on his pai-t. Nor is it a ratification of the letter of one, who was actiixg as an agent, as it did not even purport to propose a contract on his behalf.</p> <p>Further, the evidence of the father that “he never at any time promised to give him (the son) a deed of the property or any part of it” negatives the idea of a ratification of the letter.</p> <p>When an agreement in relation to real estate is void by the statute of frauds, the party who has fully complied with its terms is entitled to recover back the payments made, whether in labor or money, if the other party has incapacitated himself from its performance or has refused to perform.</p> <p>The defendant’s declarations to a third person in making a contract, or his statements of the reasons why he made it, are not admissible in evidence in his behalf.</p>

ON agreed STATEMENT of facts tbe material portions of which appear in the opinion. Upon the question of settlement, cited: Glenburn v. Naples, 69 Maine, 68. « Gould died in September, 1876. By R. S., c. 24, § 34, Louisa Gould, or her estate, was liable to the city of Bangor for her support after that time. The guardian had a right to pay that indebtedness, tbe city had a right to appropriate so much as it had in its treasury, or to retain it to be appropriated by law.

On exceptions. The opinion states the case. Perry, the teamster, was under the supreme control of the defendant, and therefore his servant. Slier. & Redf. Neg. (3d ed.) § 73. It was the duty of the defendant to provide a safe place for landing and suitable means to carry on his business.

ON EXCEPTIONS. Tbe opinion states tbe case. cited: B. S., c. 104, § 6 ; Ayer v. Phillips, 69 Maine, 50 ; also Qunningham v. Webb, 69 Maine, 92 and cases cited on pp. 95 and 96 ; 2 Wash. B. P. 664; 1 Wash B. P. 57. on tbe question of pleading, cited: B. S., c. 82, § 18; Shelden v. Call, 55 Maine, 159 ; Sturtevant v. Randall, 53 Maine, 149.

<p> Officer’s sale of equity of redemption. Officer’s return. Public place. </p> <p>When tlie sale of an equity of redemption is postponed it should appear in the officer's return:</p> <p>1. That he deems it for the interest of all concerned to postpone the sale.</p> <p>2. That ho has given notice of the time of snch adjournment by public proclamation as required by K. S., c. 76, § 34.</p> <p>A return defective by reason of the omission of the above requirements may be amended in accordance with the facts, saving the rights of all persons acquired in good faith before such amendment.</p> <p>Where the officer in his return states, that a “school house,” on which ho posted a notice of sale, is a public place, it is sufficient evidence of that fact.</p>

On .report. Assumpsit for a quarter’s rent of the Thomas Wharf in Bangor, from January 1, to April 1, 1878, $300. Plea, general issue. The court was to render judgment by nonsuit or default according to the legal rights of the parties.

Bill IN equity, heard on bill, answer and proofs. The facts are sufficiently stated in the opinion. cited: R. S., c. 90, § 1; Thomaston Bank v. Stimpson, 21 Maine, 195 ; Howe v. Bussell, 36 Maine, 115; Brown v. Holyoke, 53 Maine, 9; Brskine v. Townsend, 2 Mass. 493.; Kelleran v. Brown, 4 Mass. 443; Gutter v. Dickinson, 8 Pick. 387 ; Lanfair y. Lanfair, 18 Pick. 304; Bowell v. Jewett, 69 Maine, 293; Sellers v. Carpenter, 33 Maine, 485 ; 1 Greenl.

ON exceptions from superior court, Kennebec county. Action for malicious prosecution. Among other things the plaintiff excepted to the following instructions contained in the charge of the presiding justice to the jury: And we then come to the second proposition bearing upon this question, — want of probable cause. But I do not adopt the same order that has been adopted by counsel in presenting the the case in argument.

<p> Promissory notes. Joint promisor. Original promisor. </p> <p>A person wlio signs a note as “surety” is to be regarded as a joint promisor. If lie sign liis name on tie bade of tie note, ie is regarded as an original promisor.</p>

ON report from .the superior court, Kennebec county. Trover for the value of the following promissory note indorsed by the plaintiff and delivered by her to the defendant for the ¡ourposes stated in the opinion. $200. Clinton, March 8, 1879. For value received I promise to pay Abbie Badger, or order, two hundred dollars, in the month of October, A. D. 1879, with interest at seven per cent, till ¡said. (Signed,) george h. kingsley.” The date of the writ was November 3, 1879.

Bill ns equity to Redeem. Heard on bill, answer and proof. The facts appear in tbe opinion. cited: Greenlief’s note to Cruise, vol. 2, p. 74; Poindexter v. McOannon, 1 Dev. Eq.

On report. The case is stated in the opinion. To render defendants liable, the supplies furnished, must be to a pauper. Verona v. Penobscot, 56 Maine, 11. But the person receiving aid was a disabled soldier, not a pauper. Stat. 1875, c. 21. This statute affects the towns as well as the person aided.

<p> Poor debtor. Encape. Liability of jailer. Measure of damages. Bond. </p> <p>The jailer is liable for an escape if lie permits a prisoner committed to jail on execution to go at larg'e without giving a bond approved as required by It. S., c. 118, § § 24, 42. The mere sending for a bond not in accordance with the statute and its retention without suit upon it or any action in regard to it is not a waiver of its want of legal approval.</p> <p>The appearance of the creditor’s attorney, on a notice to disclose, at the time and place appointed, but refusing to choose a justice and protesting against the jurisdiction of the magistrates and against a discharge, is not a waiver of the escape, though he may examine the debtor,</p> <p>ior an escape of a poor debtor the creditor is only entitled to actual damages against the jailer. The true measure of damages is the value of the custody of the debtor at the time of the escape.</p>

On exceptions. Action on the case, for damages sustained by the plaintiff, because of a warrant of distress wrongfully issued, as he says, . and enforced against him as collector of taxes by the treasurer of the defendant town, for neglecting to collect and pay over the 'village school district tax. At the trial, after the plaintiff’s evidence was all in, the . But the presiding justice ruled as a matter of law that the action ■was maintainable.

ON REPORT. Writ of entry, wherein the plaintiff demands possession of ihirty-one acres of land in Houlton. The plea was the general issue, with a brief statement claiming title in the defendant. The opinion states the case.

<p>On exceptions.</p> <p>The case is stated in the opinion.</p> <p>cited: 1 Greenl. Ev. § 305; Richardson v. Beerie, 43 Maine, 161; Rollins v. Byer, 16 Maine, 475 ; Callisher v. Bischoffshem, 5 Q. B. 449 ; Stewart v. Ahrenfeldt, 4 Denio, 89 ; Cook et als. v. Wright, 101 E. C. L. 5-57 ; Russell v. Cook et al. 3 Hill, 504; Allis v. Billings, 2 Cush. 19; Cobb v. Arnold, 8 Met. 403; Barlow v. Ocean Ins. Co. 4 Met. 270; Bitkin v. Noyes, 48 N. H. 294; 1 Chitty on Contr. (11 Am. ed.) 46 ; Phoenix Bank v. Bumstead, 18 Pick. 77; Colby v. Gop^p, 35 N. H. 434.</p> <p>There was no obligation on the part of defendant to pay plaintiffs anything more than he did pay them, and so the court ruled; and no consideration for tbe promise alleged by plaintiffs. Defendant requested tbe court so to rule, but the request was declined.</p> <p>Had any question arisen during tbe progress of the work, in consequence of which plaintiffs declined to proceed, and as an inducement to proceed, defendant had made a new promise, the decisions are that this would constitute a new consideration. But the work was finished, and defendant was ready to pay, and did pay, all that was due, so that there was no shadow of consideration for any new promise.</p> <p>In Sanderson v. Brown, 57 Maine, 313, it is said : "But a past and executed consideration without knowledge or request, is no sufficient basis for a promise to pay.” That was a case where the services were performed gratuitously, but it cannot alter the principle, that they were performed under a legal obligation to perform them, for a consideration existing at the time of performance, which has been fully paid.</p> <p>In Paine v. Boston, 124 Mass. 491, it is said: "A gratuity offered for past services is not a contract, and cannot be enforced at- law.”</p> <p>Dodge v. Adams, 19 Pick. 430, says .-"To constitute a moral obligation, the consideration for an express promise which may be enforced in a court of law, there must have been some preexisting legal obligation.” This is more fully explained in Mills. v. Wyman, 3 Pick. 209-210.</p> <p>Chitty on Contracts, says a release of an equitable claim is a sufficient consideration; but the context shows that the author intends a claim cognizable in a court of equity, and not merely an equitable claim within the meaning of the ruling in the case at bar. The point at bar is very fully discussed in Chitty on Contracts, eleventh edition, pp. 52-64. The cases which we have been able to find, that seem to us most analogous to the case at bar, are: Smith v. Ware, 13 Johnson, p. 259 ; Williams v. Hathaway, 19 Pick. p. 389.</p> <p>2d. The pith of the other point in the case, though it came up in several forms, is perhaps best shown by defendant’s offer of proof, and the court’s ruling upon them, in connection with the receipt given to N. & R. R. R. Co. The substance of the offer was that the claims of the plaintiffs were not valid; that defendant had other claims, which were valid; that upon a lump settlement of the suit brought in defendant’s own name, and upon his own claims against the corporation, he received less than was due him upon his valid claims, and that therefore he ought to be allowed to satisfy the jury that nothing was received upon the plaintiffs’ claim. This was not permitted him ; but the court went further, and held in substance that by reason of the form of settlement and the admission that it was a lump settlement, plaintiffs were not required to give any further affirmative evidence on that point.</p> <p>Now the alleged agreement, was that when "Zee got it 1 should have it.”</p> <p>Note, that this is not a suit for not getting it when he might have got it! If our position is correct, plaintiffs would still have that remedy, if they have or had any just claim; so that no damage would be done by sustaining us upon this point. But as the court ruled, injustice is done; and contrary to the general course of law, a fiction of law is used to work out that injustice upon an arbitrary principle. We are asked to pay the plaintiffs money, which we in fact did not get, and although, as our suit against the railroad corporation progressed, it became clear as day-light that we never could get it.</p> <p>Phoenix Bank v. Bumstead, 18 Pick. p. 77, is undoubtedly relied on by plaintiffs ; yet the distinction is a broad one.' In that case the claim which defendant settled was received from plaintiff, and upon it suit could have been brought in plaintiff’s name. In the case at bar, Hitchings & Lynch brought no suit against the N. & R. R. R. Co. for any apparent cause of action that ever apparently vested in the present plaintiff. The settlement, therefore, included no such cause of action, and the receipt was only of such matters as might be due Hitchings & Lynch; no attempt was made to discharge any claim that ever apparently vested in the present plaintiff; and if any such existed against the N. & R. R. R. Co. it exists to-day.</p>

<p> Will. Devise; construction of. </p> <p>.'A testatrix owned a twelve acre lot, with, a house in its centre. She devised to one person the easterly half of the house, and the part of the lot lying east of ■ it “bounded south by the lane,” and to another person the westerly half of the house, and “the remaining part of the lot, which lies westerly of the •dwelling house;” Held, that the two devisees toot the whole lot, and that •“the lane” limits the portion first devised, although it varies from the southerly line of the lot, near the centre of the lot, in such a manner as to give the second devisee more than half of the land.</p>