Volume 72 — Maine Reports

On REPORT. Original petition for certiorari, dated August 12, 1879, entered at October term, 1879, alleging that the proceedings of the county commissioners were finally closed one term earlier than is provided by statute. October term, 1879. Writ granted, by consent of Jasper Hutchings, then county;attorney. Writ of certiorari issued November 10, 1879. Entered in court January term, 1880. January term, 1880. Proceedings quashed, con. as to costs.” April term, 1880.

On EXCEPTIONS. Case, to recover damages for an alleged libel. The defendant demurred to the declaration. The court overruled: the demurrer : and held the declaration good. The opinion states the case. cited: Bailey• v. Myriclc, 50 Maine, 181. i In civil suits for libel the gist of the action is publication. It ; is the material part and must be alleged. .

<p> Principal and Agent. Contract. Demurrer. </p> <p>Where a sealed instrument is executed by an agent, with authority therefor, and it appears by the whole instrument that it was the intention of the parties to bind the principal, that it should be his deed and not the deed of the agent, it must be regarded as the deed of the principal, though signed by the agent in his own name.</p> <p>Where two persons, constituting a firm, are made agents, and the power conferred upon them is joint and several, the execution of any instrument within the scope of their authority by one or both would be a valid execution. Thus, upon an agreement commencing, “This agreement made between Fletcher & Bonney of Boston, Superintendents of New England Agencies for the Security Life Insurance and Annuity Company, of New York, of the first part, and Stephen O. Purinton, of the second part,” and ending, “In witness whereof the said parties have set their hands and seals. John W. Fletcher, Supt. N. E. Agen, (seal), Stephen 0. Purinton (seal),” everything in the body of the instrument being appropriate to an agreement with the company, and inappropriate to an agreement with the agents of the company, an action may be maintained by Purinton against the company, if the agreement is authorized by the company, for a breach of the covenants of such agreement.</p> <p>Where the declaration alleges an instrument to be the deed of the defendant, it must be so regarded upon a demurrer to the declaration, if it could be, legally, the deed of the defendant.</p>

<p>On report.</p> <p>Forcible entry and detainer.</p> <p>The law court to render judgment in accordance with,the legal rights of the parties.</p> <p>The facts sufficiently appear in the opinion.</p> <p>cited: G9 Maine, 302 ; 'Jewett v. Bailey, 5 Maine, 87; French v. Sturdivant, 8 Maine, 246 ; Purrington v. Pierce, 38 Maine, 447 ; 43 Maine, 206 ; Reed v. Sewall, 46 Maine, 278 ; Punning v. Finson, 46 Maine, 546; Bennoch v. Whipple, 12 Maine, 346; 2 Smith’s Leading Cases, 655 ; 3 Wash. E. P. 93; 34 Maine, 304; 45 Mamo, 447; 56 Maine, 9.</p> <p>Our action of forcible entry and detainer is regulated entirely by E. S., c. 94, § § 1, 2, which provides for its use in three cases. Neither of them are applicable to this case.</p> <p>It is claimed only to maintain it under the provision for terminating a tenancy at will. No tenancy at will ever existed. There is no pretense that any rent was ever paid or payable. Punning v. Finson, 46 Maine, 546.</p> <p>As to one half undivided, there is no pretense that plaintiff has ^anything but a mortgagee’s interest. As to the other the court have found that defendant has a right to redeem, which must be to redeem from a mortgage.</p> <p>The plaintiff recognized that the relation of mortgagee and mortgagor existed between them at the time of the commencement of this suit.</p> <p>Mortgagee cannot maintain forcible entry and detainer against mortgagor. Reed v. F'hoell, 46 Maine, 270.</p>

On motion to set aside the verdict. Tuespass on the case. The facts sufficiently appear in the opinion. cited : 55 Maine, 438; 57 Maine, 117 ; 58 Maine, 384. cited: Call v. Allen, 1 Allen, 142; Gole v. Syroid, 35 Maine, 168 ; Sutherland v. Jackson, 32 Maine, 84; Saltonstall v. Banker, 8 Gray, 196; Dickey v. Maine Tel.

On exceptions. Assumpsit on account annexed. Plea, general issue and brief statement setting up the statute of limitations. The facts appear in the opinion. The plaintiffs’ books of account show a continuous and unbroken line of charges and credits, not only every year, but nearly every month in the year from the commencement to the close, from 1863 to 1870. The defence is R. S., c. 81, § 84.

On exceptions. Assumpsit upon the promissory note hereinafter mentioned. Plea, the general issue, with brief statement that the note declared upon was that of the Carmel Cheese Manufacturing-Company. (Note.) $1,000. Carmel, April 22, 1870. For value received, we, the subscribers for Carmel Cheese Manufacturing Co. promise to pay William Simpson, or order, one thousand dollars in six months from date with interest. E. A. SIMPSON, RUEUS WORK, .

<p>ON REPORT.</p> <p>Forcible entry and detainer.</p> <p>The facts sufficiently appear in the opinion.</p> <p>A tenant can have no claim for betterments unless he has been at least six years in open, notorious, exclusive and adverse possession. This defendant was in adverse possession only from death of the life tenant, and that was less than six years. Seizin of the tenant while the particular estate continues is not adverse to the reversioner or remainder man. Treat v. Strickland, 23 Maine, 234; Pratt v. Churchill, 42 Maine, 471; R. 8., c. 104, § 38 ; Wales v. Coffin, 100 Mass. 177; Plimpton v. Plimpton, 12 Cush. 458; R. S., c.73, § 5.</p> <p>Forcible entry and detainer is the proper remedy in this case. John v. Sabattis, 69 Maine, 473.</p> <p>upon the questions considered in the opinion, cited: R. S., c. 104, § 23; Peed v. Reed, 68 Maine, 571; Poor v. Larrabee, 58 Maine, 563; Austin v. Stevens, 24 Maine, 520; R. S., c. 94, § 1.</p>

<p>H. 8-, o. 18, § 8. Stat. 1876, c. 26, § 9. Ways. Increase of damages. Judgment of county commissioners.</p> <p>Upon a petition for an increase of damages for land taken in widening a way, pending before the county commissioners, the mayor, by the authority of a vote of the city council, agreed with the petitioners to a reference as to the appraisal of the damages, and then by the authority of a subsequent vote of the city council, after the award of the referees, the mayor agreed with petitioners to have the sums awarded by the referees entered upon the records of the commissioners, as the sum agreed upon by the parties. It was so entered and judgment was duly entered in favor of the petitioners, Held :</p> <p>1. That the judgment was not upon the award, but upon the agreement of the parties entered upon the record as provided by R. S., c. 18, § 8, as amended by stat. 1875, c. 25', § 9.</p> <p>2. That the stat. 1875, c. 25, applies to the parties in interest, and by its provisions, the defendants were authorized to agree upon such an increase of damages.</p> <p>3. That the agreement for an increase of damages entered upon the record, gave the commissioners power to render the judgment, and it is binding upon the parties.</p>

ON REPORT. This was an action against Benoice Loomis and Chas. EL. Loomis upon the contract given below for use of the mill, referred to in the contract, to saw two hundred thousand feet of lumber, and one hundred and fifty thousand shingles, from January 19, 1878, to June 1, 1878. Writ was dated August 28, 1878.

ON EXCEPTIONS AND motion eor New trial from superior court, Kennebec county. Assumpsit for money bad and received. Plea, general issue. Yerdict for plaintiff for $2261.85. At the trial the presiding judge instructed the jury that, 1. This substantially and in brief represents the position of the two parties here before j ou.

<p>On report.</p> <p>Trespass against the defendant, as sheriff of Penobscot county for entering plaintiffs’ premises at Oldtown, September 1, 1877, and taking and carrying away one narrow gauge locomotive engine, of value of three thousand dollars ; four and a half set of wheels and truck frames, of value of four thousand dollars ; one hundred and twenty pairs of wheels with axles, of value of five thousand dollars; and one hundred iron truck frame sides, of value of one thousand five hundred dollars, and twenty-six platform cars, of value of seven thousand two hundred dollars.</p> <p>Writ is dated September 18, 1877. Plea is general issue, with brief statement as follows :</p> <p>And for brief statement and further defence, the defendant says that by virtue of a certain writ which issued out of the clerk’s office of the Supreme Judicial Court of Maine, in and for Penobscot county, in favor of James II. Haynes et ais. and against the Consolidated European and North American Railway Company, one Jesse Prentiss, of Milford, in said county, in his capacity as a deputy sheriff in and for said county, attached the whole or a part of the property specified in plaintiffs’ declaration as the property of the said Consolidated European and North American Railway Company, whose property it there and then was, and not the property of Hamlin and Hayford, trustees, as alleged in their said writ; nor was said property then and there in the possession and keeping of said Hamlin and Hayford, trustees, nor in or upon the promises of said Hamlin and Hay-ford, trustees, as alleged in said writ. That all the property described in said plaintiffs’ writ and declaration, is not now, nor ever was, the property of said Hamlin and Hayford, trustees, and was never, before the attachment aforesaid, in the possession of said Hamlin and Hayford, trustees.</p> <p>The facts sufficiently appear in the opinion.</p> <p>The law court to enter such judgment as the evidence requires. The matter of damages to be hereafter determined at nisi prius unless the parties otherwise agree.</p> <p>cited : R. S., c. 51, § § 28, 47-56 ; Morrill v. JSToyes, 56 Maine, 458 ; Shepley v. A. & St. L. R. R. Co. 55 Maine, 407 ; K. d P. B. B. Co. v. P. & K. B. R. Co. 59 Maine, 9 ; Pieree v. Emery, 32 N. II. 484; Shaw v. Bill, 5 Otto, 10; Phi. W. é B. B. B. Oo. v. Woelpper, 64 Penn. St. 366; Meyer v. Johnston, 53 Ala. 467; Dillon v. Barnard, 1 Holmes E. 386, 394; Farmers L. & T. Oo. y. S. Jo. é Denver JR. B. Oo. 3 Dillon, U. S. C. C. E. 412; Wilson y. Boyce, 2 Dillon, 539 ; Pierce y. Mil. & 8. P. B. B. 24 Wis. 551; Farmers L. & Tea Oo. y. Fisher et al. 17 Wis. 114; Scott y. G. & 8. B. B. Oo. 6Bissell, 529, 534; Pennock y. Ooe, 23 Howard, 117 ; Dunham y. B. Sc. Oo. 1 Wallace, 254; Galveston Bailroad Oompany v. Oowdrey, 11 Wallace, 459 ; Foster v. Saco Manufacturing Oo. 12 Pick. 454; Bowley v. Bice, 11 Met. 333, 336; Moody v. Wright, 13 Met. 17 ; Qoolc v. Gorthell, 11 E. I. 482; Williams y. Briggs, 11 E. I. 476; Palmer y. Forbes, 23 Ill. 300; Hen-shaw v. Bank of Bellows Falls, .10 Gray, 568.</p> <p>It is admitted that this road was broad gauge till the fall of 1877.</p> <p>This narrow gauge property was all prepared and purchased by the Consolidated European and' North American Company.</p> <p>It is proved, (and not denied) that this old stock narrowed, was replaced by new stock, and that the road was kept up to its accustomed efficiency, and more, that the rolling stock of the then broad gauge road was very materially benefited in 1874 and 1875.</p> <p>It is provided — article seven, of the land grant mortgage, that the "party of the first part, may in its discretion, sell, exchange, or otherwise dispose of any locomotives, tenders, cars,” and "all other personal property which may become impaired by use, or require renewal” "and convey the same free and clear of all lien of this mortgage,” "but all property of whatsoever kind, obtained in place of the property sold or disposed of, shall be subject to, and bound by the lien of this mortgage.” When, then, the rolling stock is broken up, and ceases to be rolling stock, it ceases to be bound by the lien, and more especially if other stock has been substituted for it.</p> <p>Forty-five pairs wheels and axles, which were put on to the road by the old European and North American Eailway Company, and wliich came into the possession of the consolidated road at and by consolidation, having been replaced by the said consolidated company by new stock, and the mortgage of the old European and North American Nail way Company, (Hamlin and Hayford, trustees,) having been made good and complete, and the same (forty-five pairs) entirely eliminated from said Hamlin and Hayford’s mortgage by its own terms and agreements, the right and title to the said forty-five pairs wheels and axles is clearly in the consolidated company. More especially since the same (the forty-five pairs) was narrowed by, and the cost thereof, paid by the consolidated company.</p> <p>Therefore Hamlin and Hayford, trustees, have no title to the said forty-five pairs old wheels and axles, under or by their mortgage, they being the property only of the consolidated company, the title being complete in the same.</p> <p>The six pairs in paper A, manufactured by Eddy, the one pair manufactured by McDugle, and the one pair manufactured by Aca-dian Iron Works (per Angell’s testimony, page 67,) came from the "western cxtention branch from St. John, westward to Yance-boro’, Maine,” at and by consolidation, and were narrowed by the consolidated company, the title of which is fully vested in the consolidated company, by reason of the same (old stock, not in use &c. &c.) having been replaced by said consolidated company, and thereby entirely eliminated from the lien of the mortgage of the "western extension branch from St. John, westward.”</p> <p>Certainly Hamlin and Hayford, who bring this suit, have no right, title or claim to the said western extension wheels and axles under their mortgage, nor ever had, neither in law nor equity.</p> <p>The balance of wheels and axles, including trucks, sides, &c. was all new narrow gauge stock, and bought by the consolidated company.</p> <p>Now, the consolidated corporation prepared and purchased, and was the owner of all the property when the sheriff took it.</p> <p>This is neither property (the forty-five pairs wheels and axles excepted) possessed by the Maine corporation, when it made its transfer to the trustees, Hamlin and Hayford, nor was it after-wards acquired by that corporation.</p> <p>In fact, before this property (excepting the forty-five pairs old E. & N. A. and the eight pairs western extension wheels and axles) was acquired, the Maine corporation had ceased to exist; it had been merged in the consolidated company, and by and through said consolidation, and the subsequent replacement with new stock, as above stated and proved, by said consolidated company, the title to all the property sold on this execution is fully vested in said consolidated company.</p> <p>The intention of the two companies? and the act of confirmation by the legislature, was a dissolution of the two companies, and a new corporation formed. /State v. M. Q. It. It. Oo. 66 Maine, 488.</p> <p>The agreement between Smith, trustee, and Hamlin and Hay-ford, trustees, dated Bangor, September thirtieth, 1876, (page 35) does not give said Hamlin and Hayford any right or authority to bring or maintam a suit in their names for the recovery of this property, to which Hamlin and Hayford have no title.</p> <p>It is a maxim of the common law, that a person cannot grant what he has not. And it is a familiar principle that words in a deed importing a transfer in presentí, of goods which the mortgagor does not own, will not vest a title in the mortgagee, when the mortgagor subsequently acquires them. But if after the property has come into the possession of the mortgagor, he delivers it to the mortgagee, with the intention to ratify the mortgage, the title will vest.</p> <p>It is provided in said Consolidated European and North American Bailway mortgage deed to Smith and another, as follows :</p> <p>"Eighth. It is further agreed that the said party of the first part, shall at the request of said trustees, (Smith and Hersey) execute and deliver such further deeds of conveyance of all the property now possessed, or to be hereafter acquired by said party of the first part, herein conveyed or intended to be conveyed, and upon the trust herein set forth, as may be necessary for the better security of said bonds.”</p> <p>No "such further deeds of conveyance” of the property they possessed, or thereafter acquired, have been made. Smith took possession, as trustee under the mortgage, of the entire road and the property embraced in the deed, in October, 1875, and remained in possession till October, 1876. Did that rest a title in him to this property ? In an elaborate opinion in Jones v. Richardson, 10 Metcalf,'< 493, it was decided that the; mere taking possession of after-acquired property by the mortgagee, is not enough. It is necessary to prove that the mortgagor-had delivered possession of the goods to hold under the mortgage - with the view of carrying the former grant into effect.</p> <p>And even that, says the court, would not be sufficient as against creditors, unless the mortgagee retains possession, or records the mortgage with the town clerk.</p> <p>Smith did not retain possession, neither did he record the mortgage with the town or city clerk.</p> <p>Therefore Smith could not maintain an action at law against the sheriff. The legal title to this property is still in the consolidated corporation, it is not covered by Smith’s mortgage, and if Smith has no legal title, he certainly cannot pass the title of this, property to Hamlin and Hay ford, as he has attempted to do.</p> <p>They have none, neither under their mortgage, the "agreement,”' nor the " bill of sale,” and cannot maintain this action.</p> <p>As to the equitable lien of mortgagees on after-acquired property, see: Mitchell v. Winslow, 2 Story Eep. 630; Pen-nock v. Goe, 23 Howard, 117; Dunham v. Peru, &c. Railway Go. 1 Wallace, 254; United States v. New Orleans Railroad, 12 Wallace, 362 ; 2 Eedfield on Eailways, 455.</p> <p>The questions raised in this case are fully discussed in Eedfieldl on Eailways, and in Jones on Mortgages, and Jones on Eailroad Securities, and the authorities are therein fully cited upon the one side and the other. We refer to them as follows, viz : "After-acquired property”, Jones on Eailroad Securities, c. 4, 5, § § 121, 132, 133, 154; 1 Jones on Mortgages, c. 4, § 149 to c. 5,, Eolling Stock; Personal Property. Also, to: Hoyle v. P. & M. R. R. Go. 54 N. Y. 314 (Am. vol. 13, 595) ; Randall v.. Dlwell, 52 N. Y. 521 (Am. vol. 11, 747) ; Strickland v. Parker, 54 Maine, 263; 1 Jones on Mortgages, c. 11, § 452;; McGaffrey v. Woodin, 65 N. Y. 459 (Am. vol. 22, 644.)</p>

Bills in equity, beard upon bills, answers and proofs. The first is a bill brought by the trustees of the bondholders' of the European and North American Railway Company against ‘the company, and certain creditors (E. It.

ON REPORT. Trespass for hauling certain loads of stone upon the locus which is within the limits of a town way, and the plaintiff claimed to own the fee. The question presented, called for the construction of a deed from the plaintiff to the defendant, dated June 26, 1857. The description is given in the opinion.

On report. Trespass. The law court to render such judgment in each case as the law and admissible evidence require. The opinion states the case. cited : Cushman v. Smith, 34 Maine, 247 ; Davis v. Bussell, 47 Maine, 443 ; 1 Cbitty PI. 544; Burnham v. Bilis, 39 Maine, 319 ; Franklin Bank v. Cooper, 39 Maine, 542; Cook v. Stearns, 11, Mass. 533; 1 Wash. R. P. c. 12 § 2, and oases cited.

<p> Pleadings. Demurrer. Depleader. </p> <p>After a demurrer to the defendant’s plea in bar is sustained, the court at nisi prius has power to allow the defendant to plead anew. The power is to he exercised in the discretion of the presiding justice, and only in the furtherance of justice.</p>

<p>On agreed statement of facts.</p> <p>The opinion states the case.</p>

On exceptions. Assumpsit to enforce a lien for materials. The case is stated in the opinion, Tlio following is tho statement of the lien claim filed in the town clerk’s office: State of Maine. • York, ss.

<p>Bill in equity to obtain the construction of the following will:</p> <p>"Be it hereby known that I, Albion Q. Randall, of Bowdoin-ham, comity of Sagadahoc and State of Maine, being of sound mind, do hereby make my last will and testament.</p> <p>"Unto my mother, Lucy Randall, of Bowdoinham, I will and bequeathe the income of one-third of my property during her natural life.</p> <p>"Unto my sister, Sarah F. Mariner, I will and bequeathe the income of one-sixth of my property during her natural life and children forever. But should she have no children, then the money will go as described.</p> <p>"Unto my sister, Margaret White, of Richmond, I will and bequeathe the income of one-sixth of my property during her natural life.</p> <p>"Unto the children of Samuel W. Randall, I will and bequeathe the income of one-tenth, in equal shares, to each during their natural lives. To the towns of Bowdoinbam and Richmond I will and bequeathe the perpetual income of one-tenth to each, to be used by the selectmen .in providing for poor aged people, as they in their kindness may from year to year devise.</p> <p>"To the son of Rewel, one hundred dollars I will and bequeathe in consideration of their naming him for me.</p> <p>"Unto Louisa Small, daughter of Elizabeth Temple, I will and bequeathe the income of the remainder, during her natural life —the remainder being nearly one-thirtieth — at her decease the same to her child or children, and so on. At the decease of my mother, I will and bequeathe the income of one-sixth, being one-half whose income was bequeathed my mother, unto Harriet C. Ring, of Lubec, Maine, during her natural life. I will and bequeathe the income of the other sixth to Samuel W. Randall during his natural life, and at his death the income is to be divided in equal shares — to his children and theirs — perpetual. At the decease of Harriet C. Ring, if her mother be living, she shall receive the same during her natural life. At the decease of both, the children of Rewell and Merrilla Webber, of Richmond, shall have the same income during their natural lives and their children in perpeal.</p> <p>"Should in any of the contingent remainders herein named— there be any doubt as to the disposition of said remainder, it is my will that the general course of the law be followed.</p> <p>"I hereby appoint Henry Q. Sampson and Samuel W. Randall, both of Bowdoinham, Maine, to be my lawful administrators.</p> <p>SEAL. A. Q. RANDALL.”</p> <p>"Witnesses : Edward P. Bond.</p> <p>Albert H. Shedd. •</p> <p>Leigh R. Worcester.</p> <p>Executed in Boston, December 21, 1877.”</p>

On exceptions to the ruling of the court in overruling the defendant’s demurrer. The opinion states the case. There are two counts in the writ; if either are good the demurrer cannot be sustained. Blanchard v. Hoxie, 34 Maine, 377 ; Ooncord v. Delaney, 56 Maine, 201. It may have been better practice for the plaintiff to have more elaborately set forth his cause of action, but, as the person and case can be rightly understood, it is sufficient. Wood v. Decoster, 66 Maine, 544.

On EXCEPTIONS from superior court, Kennebec. Assumpsit for personal services of plaintiff, performed prior to the marriage of the plaintiff with defendant. Action commenced subsequent to a divorce decreed upon libel of the wife. Verdict for plaintiff.

More than thirty days before suit was brought the plaintiff’s attorney delivered to the defendant a bill, headed — Pittsfield, January 25th, 1876 — Estate of Thomas Millett to T. F. Millett, Dr.” and containing sundry items all in the handwriting of the plaintiff’s attorney and demanded payment of the amount claimed in the bill as attorney for the plaintiff. The plaintiff was not present, and the paper was not signed.

On exceptions. Assumpsit for seventy-two loads of wood at fifty cents a load. The defendant, who was engaged in- running a stationary engine, made a bargain with the plaintiffs to have all the trimmings from the lumber sawed at plaintiffs’ mill to use as fuel for the engine. The trimmings consisted of pieces of wood and bark of different- small sizes from one or two inches up to from one to two feet in length, and was known as refuse wood.

<p> Contract. Subscriptions in voluntary associations. </p> <p>The defendant, with others, signed an agreement to enter into an association for the purpose of erecting and operating a cheese factory, agreeing severally and individually to pay their regularly appointed building committee the sums set against their names; the building committee was chosen from the subscribers ; the associates paid in their subscriptions; the committee contracted . for the erection of the building; the money was expended and the common enterprise established, without any disclaimer or dissent of the defendant.</p> <p>Held, 1. That the agreement was not binding while it remained wholly unexecuted; it was then inchoate and without consideration.</p> <p>2. That it became binding when liabilities were assumed and action taken under it; that a consideration was supplied thereby.</p> <p>3. That an action for defendant’s subscription may be maintained in the name of the building committee; the agreement makes them payees or promisees by description,</p> <p>4. That it is not a defence to the action, that the associates were afterwards incorporated for the purpose of carrying on the enterprise, whether the defendant was included or excluded, among the persons incorporated. If injured by the action of her associates, she has a remedy by action or suit in equity.</p> <p>5. That it is not a defence to this action, that the associates voted to release the defendant’s subscription, the vote being without consideration, and having been reconsidered and annulled before acted upon.</p>

ON motion to set aside the verdict and exceptions. At the trial the defendant relied upon a deed from the plaintiff to him of the demanded premises, executed and delivered December 9, 1873. The writ was dated December 21, 1878. The plaintiff denied that the instrument was his deed, because, he said, at the time of the delivery there was no seal upon it. The deed was of the ordinary form of a warranty deed.

On REPORT. xhe opinion states the case. upon the questions discussed in the opinion, cited: E. S., c. 91, § 7; The Kearsarge, 1 Ware, 552 ; Hull of a nevo ship, 2 Ware, 207 ; The Calistro, 2 Ware, 45 ; Wooly v. The Peruvian, 3 Ware 156 ; Barque Glauser, 2 Story, 445 ; Purrington v. Hull of a neto ship, 1 Ware, 561; The Young Mechanic, 3 Ware, 58 ; The Young Mechanic, 2 Curt. 404; Platina, 3 Ware, 180. upon the questions discussed in the opinion, cited: BickneTl v. Trickey,…

EXCEPTIONS from superior court, Kennebec. The facts sufficiently appear in the opinion.

<p> Administration. Gift. Deposit in Savings Bank. </p> <p>Notwithstanding there bas been a final accounting by the administrator and decree of distribution; still, upon ascertaining that there are outstanding-debts due the estate and collectible, the probate court may open the administration and order further proceedings.</p> <p>Where A. deposited money in a savings bank in the name of B. without a declaration of trust at the time, or subsequently, and retained the deposit book in his possession until his death; Held,</p> <p>That, in the absence of proof of any act or declaration under the pressure of immediate or impending death, or of proof of any delivery, or intent to give, the dep'osit in the bank in B.’s name belonged to A.’s estate, and not to B.</p>

Demurrer to bill in equity. The bill sets out that Daniel C. Berry made a will September 15, 1878, containing the devises stated in the opinion. After his death, his will was duly probated and allowed, and the plaintiffs and the widow, Mary Berry, were appointed executors at the November term, 1873.

Bill in equity. I leard on bill, answer and proof. Tiie opinion states the case. upon the question of perpetuity, cited: 1 Perry on Trusts, 472, 480-483 ; Smith v. Dunwoody, 19 G*. 237. The one hundred dollars bequest was void. A secondary bequest, depending upon a void bequest, fails. Oorlyes v. French, 4 Yes. 418; 1 Jarman Wills, 248; Rose v. Rose, 6 Abbott’s Dig. 178 ; 2 Redfield Wills, 565, 574, 531, 523 ; 22 Wend. 483. The huge bequest was not a public charity.

<p>Coloration, authority of officers. Promissory notes — signature to. Money counts.</p> <p>A vote of tlie directors of a corporation that the president have full power and control of its business, authorizes him to purchase the materials to bo used in its operations, and to borrow money for the corporation, and give its note ■ for the money borrowed.</p> <p>A note signed “ Belfast Foundry Company, W. W. Castle, President,” binds the corporation; and if it did .not, the corporation, in this case, would be liable on the money counts for money loaned to it, and applied to the purchase of materials for its use or the payment of its debts. And it is immaterial whether the money is passed over to the corporation by the lender, or obtained by the president upon a deposit in a savings bank, transferred to Mm for that purpose.</p>

On exceptions and motion for a new trial. Assumpsit on three promissory notes signed William G. Brown, Treasureralso for money had and received. Plea was general issue, and statute of limitations was set up under a brief statement. The verdict was for $3004.81. The exceptions relate to the admission in evidence, of the notes declared upon, of certain other notes, and of the records, accounts, and settlements with the treasurer, of the defendant town.

ON REPORT. The case is stated in the opinion. The law court was to render such judgment as law and justice require. These defendants do not claim any right to prevent the plaintiff from utilizing his mill property as an ice field in the winter season, why then should they he upheld in willfully appropriating to their own use the product of the plaintiff’s property ? The use of the mill is lost to the plaintiff in order that he may harvest ice from his mill pond.

Exceptions from superior court, Cumberland. Action on the case to recover damages for malicious suit and prosecution, and for abuse of legal process.

ON REPORT. Writ dated September 12, 1877. Declaration — In a plea of the case, for that the said plaintiff at.

<p> Mortgage. Parol agreement. Evidence. Payments. </p> <p>Where the grantee in a warranty deed, as a part of the consideration for the conveyance, agreed orally with the grantor to pay the balance due upon an outstanding mortgage, oral evidence of such an agreement is admissible in evidence in a real action wherein the plaintiff relies upon such mortgage to support his title.</p> <p>Payments made by a party upon a mortgage debt, in pursuance of a duty, in the proper performance of which others are interested, must be applied and allowed as payments, and cannot be used by such party as a part consideration for the assignment and transfer of the mortgage and debt to a third person.</p>

<p> Exceptions. Babeas corpus. </p> <p>Exceptions do not lie to the discharge of a prisoner on habeas corpus.</p>

Ageeed statement of facts. Action for pauper supplies. Writ dated February 20, 1880. Plea, general issue. Notice was sent November 12, 1878. The pauper was not removed to the defendant town. Question submitted to the court: If the defendants did not deny, are they estopped to deny the settlement of the pauper in their town ? If they are so estopped, case to stand for trial; otherwise a nonsuit to be entered. cited: E. S., c. 24, § 27; Ellsworth v. Houlton, 48 Maine, 416.

Bill in equity brought to obtain a construction of the third item in the will of John Wilson Barron. The item is recited in the opinion. George W. Barron was deceased at the time of bringing the bill. cited: Jones v. Bacon, 68 Maine, 85 ; Gifford v. Ohoate, 100 Mass. 343; Pickering v. Pickering, 1 Brad. 269 ; Haler. Marshy 100 Mass. 468 ; Breton v. Mocket, 9 Ch. Div. 95 ; Parnell v. Parnell, Id. 96 ; Perry v. Merrett, 18 Eq. Cas. Eng.

<p>ON exceptions from superior court, Cumberland; and motion for new trial.</p> <p>An action of the case to recover the expenses incurred to relieve Charles Gammon who fell into distress in the plaintiff town, amounting to twenty-one dollars and seventy-five cents, and for further expenses incurred in committing the same person to the insane hospital, and supporting him therein.</p> <p>At the trial there was no proof that the selectmen of the plaintiff town, in committing Gammon to the hospital, had before them the evidence and certificate of at least two respectable physicians as required by stat. 1874, c. 256, § 7.</p> <p>The verdict was for $89.31.</p> <p>The following are the requested instructions referred to in the opinion:</p> <p>" That the burden is upon the plaintiffs to satisfy the jury that Gammon when he left Raymond and went to Saccarappa, had an intention to return to Raymond as his home, and that this intention was not changed at any time while absent.”</p> <p>"That as bearing upon the question as to his intention to remove from Raymond, and while absent in Saccarappa, the jury may properly consider the disposition of his wife not to live in Raymond; the pecuniary difficulties under which he was laboring as shown by the evidence, and the uncertainty as to his earning money sufficient to meet the mortgage debt on his farm, as well as his statement, if defendants’ witnesses are believed, when moving his furniture, and paying his tax to the collector of Raymond, and the fact, if found to be true, that he offered his farm for sale.”</p> <p>cited: Ho. Yarmouth v. W. Gardiner, 58 Maine, 207 ; Bowdoinham v. Phipsburg, 63 Maine, 497; Ripley v. Hebron, 60 Maine, 379; Warren v. Thomaston, 43 Maine, 406; Brewer v. Linnaeus, 36 Marne, 428 ; Jay v. Garthage, 48 Maine, 353.</p> <p>The requested instruction as to the burden of proof, should have been given.</p> <p>In Ripley v. Hebron, 60 Maine, 395, the court say: "The party setting up the five years’ continuous residence, is bound to prove it. This is undoubted. If, whilst attempting to prove it, a break in the actual residence is shown, it is for that party to establish such a state of facts as shows that the legal home remained there, notwithstanding the absence. In other words, the party is bound to make out his case, and if obstacles intervene, he is the one to remove them. The other party is not bound to prove a negative, or to show that an actual removal was no removal at all.”</p> <p>The requested instruction was pertinent to the facts of the case, and the principle of law therein presented was not covered by any instruction of the court. In a case of conflicting testimony the burden of proof is an important consideration, and often turns the scale in favor of the defendant. In this case the burden was upon the plaintiffs to show that the presumption naturally arising on two occasions from the acts of removal from Raymond was not the correct one.</p> <p>He was leaving his home in fact, and there was no presumption of law that he intended to return. The natural presumption was that he did not intend to retain his home in a place which he was in fact leaving, and to which he did not return on either occasion for more than a year.</p> <p>And with such a ruling, the defendants might have expected a verdict in their favor, in view of the indecision of the jury, which had existed for seven hours, and which was only overcome by reading to them the charge and opinion in Com. v. Tney, 8 Cush. p. 2, a case which, however accurate in its statements of abstract law, is always understood by a jury as laying down the rule that the minority should yield to the views of a majority of the panel, and bring in a verdict accordingly. When such pressure as this is necessary to compel a verdict, we think the defendants may justly complain of any failure to give proper instructions, such as were requested in this case.</p> <p>The burden of proof never changes; it rested upon the plaintiffs throughout this case. See State v. Flye, 2d Maine, 318 ; Tarbox v. Eastern Steamboat Co. 50 Maine, 345.</p> <p>As to so much of the case as related to expenses of committal to, and support in insane hospital, counsel cited: stat. 1874, c. 256 ; E. S., c. 143, § § 12-20; Bangor v. Fairfield, 46'Maine, 558.</p>

On exceptions to a pro forma ruling of the court overruling a general demurrer to a declaration. ■ (Declaration.) In plea of tbe case, for that the said Barron in his lifetime, on the 22d day of February, A. D. 1878, at said Dexter, being indebted to the plaintiffs, viz : the bank aforesaid, in the sum of four thousand eight hundred and forty-two dollars and twenty-two cents according to the account, annexed, in consideration thereof, then and there promised the plaintiffs…

<p>On REPORT.</p> <p>This is a writ of entry, dated July 22, 1879. Plea, the general issue.</p> <p>The plaintiff, on the 30th day of November, 1876, discounted a note of one thousand dollars, signed by Dwelley & Mower, and indorsed by Darwin Dwelley, the father of this defendant. This note was renewed March 3, 1877, July 6, 1877, and January 9, 1878, each renewal having been signed by Dwelley & Mower and indorsed by Darwin Dwelley.</p> <p>October 17, 1878, the plaintiff brought suit on the note of January 9, against Darwin Dwelley, on which suit real estate attachments were duly returned, judgment obtained at the April term of this court, 1879, and execution issued thereon May 10, 1879, and was duly levied on the demanded premises as the property of Darwin Dwelley.</p> <p>Darwin Dwelley prior to indorsing any of the notes conveyed certain real estate, situated in Brunswick village, then owned by Mm in bis own right, to Eowena W. Dwelley, his wife. On the 17th day of May, 1877, Eowena conveyed the Brunswick village property to the Lunt heirs by deed recorded July 15, 1877 ; the Lunt heirs on the same day conveyed the demanded premises to Darwin, and Darwin on the same day conveyed the same to the defendant, Calvin E. Dwelley; the two deeds last named were recorded March 8, 1878.</p> <p>At the time of the conveyance to this defendant, he was not informed of his father’s indebtedness to the plaintiff.</p> <p>Other facts, as found by the court, are stated in the opinion.</p>

ON EXCEPTIONS. Writ of entry to recover possession of a certain parcel of land, described in a mortgage from John W. Chase to the plaintiff corporation, dated the tenth day of March, 1876, and duly recorded on that day. The defendant seasonably disclaimed as to one undivided half of the demanded premises, but claimed title to the other undivided half. The plea was the general issue as to the undivided half claimed by the defendant.

<p>Demurrer to bill in equity.</p> <p>The bill alleges that the plaintiff is the son and only heir of John O. Caleb, who died at the Sailors Snug Harbor in New York, that the decedent at the time of his decease, was possessed of the sum of twenty-nine hundred dollars on deposit in the Seaman’s Bank for Savings in New York, and of other personal property amounting to two hundred dollars in money, clothing, ■valuable papers, etc. of which the plaintiff can give no particular description; that the defendant without any power or authority from the plaintiff, but under color of a false and pretended power of attorney, without the knowledge of the plaintiff", withdrew the money from the Seaman’s Bank for Savings, and took all the rest of the personal property and effects of the decedent, and withholds and embezzles all of said money and effects from the plaintiff, and has brought the same into this State; that the plaintiff has made a demand upon the defendant for all such funds, property and effects, but the defendant falsely and fraudulently refuses to pay and deliver the same to him, the defendant falsely pretending and setting up that the decedent and the plaintiff were indebted to him in large sums of money; that the defendant refuses to make any settlement; and so "this complainant charges that the respondent has falsely and fraudulently and without authority, obtained possession of said property, funds, papers, &c. of this complainant, and falsely and willfully refuses to pay over or account for the same to this complainant, but converts and embezzles the same to his own use and benefit.”</p> <p>The plaintiff can sue in his own name. Cage v. Johnson, 20 Maine, 438.</p> <p>If ancillary letters are necessary, then plaintiff moves proper disposition of the cause to that end and preserve the attachment. Parsons v. Lyman, 20 N. Y. 124.</p> <p>Formal party can come in before the master, or there may be a supplemental bill or amendment adding representative. Daniel’s Ch. Pr. 197; Story’s Eq. PL § § 77, 238, 541, 543.</p> <p>cited: 1 Daniel’s Ch. Pr. 214-216, 331; Fletcher v. Holmes, 40 Maine, 365; Crooker v. Rogers, 58 Maine, 339; P. F. & M. Ins. Co. v. Hill, 60 Maine, 178; Caswell v. Caswell, 28 Maine, 232; Law v. Thorndike, 20 Pick. 317.</p>

On EXCEPTIONS and motion to set aside tbe verdict. Assumpsit for three thousand tons of ice claimed to have been delivered to the defendant by the plaintiffs in pursuance of a contract the material portion of which is given below : (Contract.) This memorandum of agreement, made this sixth day of May, eighteen hundred and seventy-six (1876), by and between Abraham Rich, Jr. of Gardiner, Maine, of the first part, and ITixon W. Field, Jr. of New York, N. Y. party of the second…

ON exceptions from superior court, Cumberland. (Indictment.) State of Maine. Cumberland, ss.

vOn EXCEPTIONS. (Declaration.) ' In a plea of the case for that whereas the plaintiff, on the (fifteenth day of March, A. D. 1874, was the owner of a certain ■ saw mill situated on Sawadabscook stream, in the town of Hamp- ■ den, of the value of one thousand dollars, and whereas the said Hathorn, then in full life, was in full possession of said mill for the purpose of manufacturing lumber, at a rent of a certain sum per thousand feet, and then and there said Hathorn, by his…

On .exceptions. This was an appeal from tbe decision of tbe county eommission-ers of Aroostook county, laying out a way in Township Letter B, Bange 2, in said county. And also from their decision apportioning tbe expenses of laying out said way.

to bave been caused by a defective way which tbe city was by law obliged to keep in repair. An action to recover for personal injuries received by Mrs. Smyth, by a fall, in tbe evening of December 9, 1878, alleged Writ dated February 7, 1879. Plea, general issue. Verdict, $3800. The facts material to the questions considered by the court are stated in the opinion.

Exceptions. The opinion states the case. An execution should issue. This petition is presented by the town instead of the mother as it is not a formal proceeding, but in the nature of that in French v. French, 4 Mass. 587, note; Slade v. Slade, 106 Mass. 499. Upon like orders and decrees in divorce matters, executions properly issue. Same cases; and OrroTc v. Orrolc, 1 Mass. 341. Or, an action of debt may be maintained.

On EXCEPTIONS. The case is stated in the opinion. A home,” under the statute relating to pauper settlement, is acquired in same manner as a domicile.” Robertson Ecc. R. 75; Roosevelt v. Kellogg, 20 Johns. 208; Harvard College v. Gore, 5 Pick. 370 ; Richmond v. Vassalborough, 5 Maine, 396 ; Stockton v. Staples, 66 Maine, 197 ; Greene v. Windham, 13 Maine, 225; Wilton v. Falmouth, 15 Maine, 479; Wayne v. Greene, 21 Maine, 357 ; Brewer v. Eddington, 42 Maine, 541.

<p>ON iíepobt from superior court, Kennebec. The law court to-render such judgment as the law and the facts require.</p> <p>The opinion states the case.</p> <p>The legal effect of the entry of "exceptions overruled” which had been taken by the defendants in error, was to render judgment against the defendants in error and affirm the former judgment. Pierce v. Goodrich, 47 Maine, 173; Oooly v. Patterson., 52 Maine, 472; Hoeffner v. Stratton, 57 Maine, 360.</p> <p>Hunter did not prosecute his suit "with effect.” On the contrary his suit was dismissed and his exceptions to that ruling were overruled.</p> <p>The judgment on writ of error must be either to affirm, recall or reverse the former judgment. If it was not recalled or reversed it was of course affirmed.</p> <p>The motion to dismiss the writ of error raised all the legal, points and went to the merits of the whole case. Payne v.. Files, 20 How. 219 ; Bank v. Smith, 11 Wheat. 171; Buy dam v. Williamson, 20 How. 433 ; Howe’s Practice, 465 ; Rochester v. Roberts, 25 N. H. 495 ; Peebles v. Rand, 43 N. H. 341; K. S., c. 102, § 8.</p> <p>cited: Gardiner v. Hutting, 5 Maine, 140; Moore v. Philbrick, 32 Maine, 102; • Johnson v. Shed, 21 Pick. 225 ; Lyon v. Williamson, 27 Maine, 149; Warren v. Ooombs, 44 Maine, 88; BaJcer v. Johnson, 41 Maine, 18; Freeman on Judgments, § 7 ; Under-hill v. Devereaux, 2 Saund. 72; Warlichv. Massey, Cro. Jac. 67; Oovenheven Y. Leamen, 2 Caines Cas. 322; Owen y. .Daniels, 21 Maine, 182; 5 Bac. Abr. *140; 6 Com. Dig. 226; Ooolidge v. Inglee, 15 Mass. 66; Steph. PI. 83, 85, 134; 1 Chitty PI. 475, 481; Cunningham v. Houston, 1 Strange, 127; JOerai v. Lingard, Id. 683 ; Ginger y. Cowjper, 2 L’d Pay. 1403; Bond y. McNider, 3 Ired. 440; Bailey v. Baxter, 1 .Mass. 156; Jarvis v. Blanchard, 6 Mass. 5.</p>

<p>On agreed statement of facts.</p> <p>The material facts appear in the opinion.</p>

ON report of the judge. (Report.) Upon a hearing claimed by defendants in damages and costs, the presiding judge is of opinion that the certificate referred to in R. S., c. 82, § 117, if necessary in order to enable the plaintiff to tax costs in all the actions, should issue, unless the full court is of a different opinion upon the following state of facts : At the October term, 1879, in this county, the plaintiff recovered judgment against defendant in an action of…

ON EXCEPTIONS. The opinion states the case. cited: Stat. 1878, c. 74, § 24 ; Jayeox v. Oreen, 8 N. B. B. 241; Strujper v. McKee, 17 N. B. B. 419. The bank holds for the payment of the note discounted the name of Briggs, the name of Fickett and the mortgage, Briggs to Fickett. It can proceed against either. If Fickett pays it he is substituted to the rights of the bank in the mortgage.

<p> Deed. “Standing wood.” Evidence. </p> <p>A reservation of “all tire standing wood upon a lot, together with the right to enter and remove the sartie at any time within three years,” in a deed of conveyance of real estate will include trees suitable for timber as well as trees suitable for fuel, when there is nothing in any other part of the deed, to indicate that the term “standing wood” is used in a more limited sense. And parol evidence is not admissible to show that the words were used in a more limited sense.</p>

On exceptions. This was an action of trespass on the case against an innkeeper for loss of plaintiff's baggage, and wearing apparel. Plea, general issue of not guilty. It was admitted that defendant was an innkeeper at the time of the alleged loss.

<p>ON AGREED STATEMENT OP PACTS.</p> <p>Two bills in equity to obtain from the defendant the amount of deposits made by his intestate in her lifetime in a savings bank.</p> <p>Tbe deposit books which were retained by her during her life, 'had the following headings :</p> <p>In the first case : "No. 18999, Maine Savings Bank in account with George Jewett Northrop, c. b. p. Eliza M. Kobinson.”</p> <p>It was agreed that the letters "c. b. p” meant, "can be paid.”</p> <p>In the second case : "No. 20607, Dr. Portland Savings Bank in ■• account with Mary Eliza Northrop, Cr.” and over the name of Mary Eliza Northrop, was written, "Sub. to Mrs. E. M. Kob-inson.”</p> <p>It was agreed in each case, that if evidence aliunde as to the intention of Mrs. Kobinson in making the deposit is admissible to vary the effect of the entries, the cases are to stand for trial ' upon the answers and proofs in the usual manner.</p> <p>in each case, • contended that the transaction showed the establishment of a trust in Mrs. Kobinson, in favor of the plaintiffs, and their argument was • directed to that point, and cited many authorities bearing upon it.</p> <p>contended that there was no trust, citing many authorities to the point. And there being no explicit statement of a trust, any statement of Mrs. Kobinson, or other evidence, aliunde, would be immaterial. In view of the fact that the muniments of title were retained by her, no words ■ of hers spoken so many years ago ought to be received to affect the title to the property. No statements of an alleged donor can i be allowed to supplement and help out a defective declaration of ■■trust. Young v. Young, 21 Alb. Law. J. 395.</p>

ON exceptions and motion to set aside the verdict. Assumpsit on two promissory notes given by the defendant to William Smith, and indorsed to Frank B. Heselton for value, before maturity. The action was brought for the benefit of Heselton.

<p>Bill in equity.</p> <p>Tbe opinion states tbe case.</p> <p>cited: Howard v. Harris, 3 Leading Cases in Equity, 869 ; 2 Wash. B. P. 67 ; Baxter v. Ohild, 39 Maine, 110 ; Wyman v. Babcock, 2 Curt. 386 ; Bailey y. MyricJc, 50 Maine, 171; Bussell v. Southard, 12 How. 139 j stat. 1874, c. 175 : Sprigg v. Bank, 14 Pet. 201; 4 Kent Com. (12 ed.) 142; Morris v. Nixon, 1 How. 118; Woodman v. Freeman, 25 Maine, 531; Story’s Eq. Jur. § § 64-74.</p> <p>Tbe complainant first asks to be permitted to redeem tbe property under tbe mortgage of May 17, 1866, and tbe agreement of April 29, 1874.</p> <p>Tbe bill discloses tbat tbe defendant long before tbe suit was commenced bad conveyed tbe property to Lydia Dwelley wbo was tbe record owner at tbe time tbe suit was brought. If tbe plaintiff wants a decree giving ber tbe right to redeem tbe premises, Lydia Dwelley should have been made a party to the bill. She is a party interested in the subject matter of the controversy. Morse v. Machias W. P. & M. do. 42 Maine, 119; Dockray v. Thurston, 43 Maine, 216 ; Goodrich v. Staples, 2 Cush. 258.</p> <p>Counsel further contended that, upon the facts in the case, if there were proper parties to the bill, the plaintiff would not be entitled to redeem. She had conveyed lier right of redemption to the defendant for a good and sufficient consideration, to wit, one year’s use of the premises under the defendant’s agreement of April 29, 1874, and she having failed to meet the terms of that agreement, had no right to a reconveyance and no further interest in the premises.</p> <p>For the same reason she is not entitled to any of the money which defendant received from the sale of the property, and if she was it cannot be recovered in this proceeding. Her remedy would be by suit at law in assumpsit for money had and received. Long v. Woodman, 65 Maine, 56 ; Wiseman v. Lyman, 7 Mass. 288 ; 65 Maine, 404; 68 Maine, 373 ; 2 Edw. Ch. 542 ; 17 Pick. 217 ; 2 Jones, 1046.</p> <p>Finally we submit that whether or not the plaintiff has any of the rights of a mortgagor in these premises is res adjudicata. The determination of the action for forcible entry and detainer, brought by this defendant against the plaintiff, being in favor of this defendant, was an adjudication that the relation of mortgagee and mortgagor did not exist between them, for a mortgagee cannot maintain forcible entry and detainer against a mortgagor. Meed, v JEhoell, 46 Maine, 270.</p>

ON EXCEPTIONS. Case against the selectmen of the town of Friendship for unreasonably neglecting to erect guide posts. Plea, general issue, with brief statement that the town never raised any money for the purpose and never passed any vote to erect guide boards. At the trial the court instructed the jury to- return a verdict for the defendants and plaintiff alleged exceptions. The facts appear in the opinion.

Bill in equity, heard on bill, answers and proof. This was a bill in equity in which the plaintiff alleges, that in 18(55, he entered into an association with the defendants for the purpose of working mines in Idaho; that they each agreed to contribute different sums, named, and to divide the profits and losses in proportion to such contributions.

°N report- This is an action on the case for waste. The writ is dated September 28tk, 1878. Tbe plea is tbe general issue and brief statement denying the plaintiff’s title and claim.

<p> Bife insurance. Action to recover back the premiums paid. Breach of contract. </p> <p>An action cannot lie maintained by tlic holder of a life insurance policy against the agents of a life insurance company, for premiums paid to them on the same, when it appears that the policy conforms to the application, and is in accordance with the agreement of such agents.</p> <p>Nor can such an action be maintained against either the principal or agent without proving that he has offered to return the policy, or that it is worthless.</p>

<p> Dower. Pleadings. Declaration. Demurrer. </p> <p>A declaration in a writ of dower is not bad because it sets out and claims dower in several separate and distinct parcels of land.</p> <p>Nor because the modes of selling off dower in the various pieces of real estate in which it is claimed are different.</p> <p>Unless the declaration in a writ of dower alleges a seizin of the husband of an estate of which Ms widow is by law dowable, it is defective and will be adjudged bad on demurrer.</p>

An action on the ease to recover damages for a personal The plaintiff was a night inspector of customs in the Portland custom house. On the night of December 16, 1878, he was ordered by the collector, to look after smuggled goods from the English steamer Brooklyn, lying at the defendant’s wharf. While passing over that wharf in the performance of that duty, he fell into a slip about eight feet deep and received the injury for which damages were sought to be recovered.

Osr EXCEPTIONS from superior court, Cumberland. Assumpsit for labor performed for the testator in bis lifetime. The case was heard by an auditor and the following are the-material portions of his report.

<p> Beal estate. Title by prescription. </p> <p>J owning a lot of land on tins south sido of Green street, in P, with a frontage of one hundred and twenty-six feet, convoyed a piece thereof with a frontage of sixty foot to the defendant, the latter supposing that by the terms of ids deed, his lot extended to a certain fence which would give him a frontage of sivsy-six feet. Soon after the delivery of his deed, the defendant entered, occupied and cultivated the lotto the fence for more them twenty consecutive years; Held, that if the defendant claimed title to the fence during ids entire occupation, his title ripened into an absolute title hy disseizin, although he was mistaken as to the true hound.</p>

ON REPORT. Petition for review. The parties agreed that the case should be reported for the decision of the law court, that court to have the same powers as the judge at nisi prius, all the evidence to be subject to any legal objections, the court to render such judgment as the case required. The opinion states the case. cited: B,.

On report. Assumpsit upon the promissory note of Sobra Dunham, for three hundred and sixty dollars, dated September 1, 1851. The ■writ was dated November 19, 1878. Plea, general issue, with brief statement that the claim had not been presented in writing to the defendant as required by the statute. The opinion states the facts that are material to the question. Statutes are to receive such a construction as must evidently have been intended by the legislature.

On report. An action to recover such portion of the sum of $1200, paid by the town Mt. Desert, in a settlement of judgment upon a liability of that town existing June 3, 1848, when the town of Mt. Desert was divided and the town of Tremont was incorporated, as is provided by the act of separation, special laws, 1848, c. 98.

On report. Assumpsit on the following instrument: No. 30. Town of Embden loan. $30.00. The town of Embden will pay to bearer thirty dollars, at the treasurer’s office in Embden, on the first day of July, 1878. O. H. McEadden, Treasurer.” This coupon was cut from a bond'issued by the defendant town, July 1, 1869, and of the following tenor : $500.00. State of Maine. No. 30. Loan of town of Embden, Somerset railroad.

On petition for review. The opinion states the facts. The case is reported to the full court for decision upon so much of the evidence and admissions of fact as are legally admissible. The case of B. & M. L. 11. Ii.

On report. The opinion states the case. (Declaration.') For that William A. Frye, of Newport, in the county of Penobscot, in the State of Maine, on the first day of May, A. X). 1873, was contractor and was interested as sole contractor in a certain contract or contracts, between himself and the 'United States of America, to wit, a contract or contracts to carry the United States mails, on mail route, number nineteen, from South Windham to Warren in the State of Maine, and on…

On exceptions from superior court, Cumberland. Held: are based upon Gibbs v. Ohase, as authority. Oonnah v. Hale, 23 Wend. 462 ; Wooley v. Carter, 7 N. J. L. (2 Halst.) 85.

<p>On REPORT.</p> <p>A writ of entry to recover a parcel of real estate situated in Oxford.</p> <p>Plea, general issue, and brief statement claiming title in tbe defendant.</p> <p>The opinion states the facts.</p> <p>The law court was to render such judgment as the rights of the parties required.</p> <p>cited : Wyman v. Brown, 50 Maine, 143; E. S., c. 104, § 4; Morse v. Bleeper, 58 Maine, 335; Marwick v. Andrews, 25 Maine, 530; llovey v. Hobson, 51 Maine, 66; E. S., c. 73, § 1, Austin v. Stevens, 24 Maine, 526; Kingsbury v. Wild, 3 N. H. 32; Gore v. Brazier, 3 Mass. 541; Bigelow v. Jones, 4 Mass. 513 ; Wildridge v. Patterson, 15 Mass. 151; Brinkwater v. DrinJc-water, 4 Mass. 359 ; Scott v. Hancock, 13 Mass. 163; E. S., c. 71, § 22; Howe v. Ward, 4 Maine, 195; Bates v. Avery, 59 Maine, 354; Arnold v. Sabin, 1 Cush. 525; Wells v. Child, 12 Allen, 332; Yeomans v. Brown, 8 Met. 51; Tenney v. Poor, 14 Gray, 500.</p> <p>Polly Davis, the deceased insolvent, at the time of her death was owing various creditors, in all amounting to $118.09,— $41.09 of which appears to have been presented and proved before the commissioners of insolvency, and the balance was due to C. P. Durrell, thirty dollars, and Orrin Stevens, forty-seven dollars.</p> <p>The forty-seven dollars of Dr. Stevens was a preferred claim, and, as he testifies, was due him at the time of the convejumce from Polly Davis to Sarah J. Davis, and it does not appear in the list of claims proved before the commissioners.</p> <p>The only property or assets that ever came to the hands of the administrator was the real estate named in the inventory, being the premises conveyed by the deceased without consideration to Sarah J. Davis, the same sold by the administrator, and the same •sued for in this action.</p> <p>The sale of the premises was by virtue of that section of the statute hereinbefore named, as "lands fraudulently conveyed.”</p> <p>We respectfully submit to the court that the word "fraudulently,” as used in this connection, does not mean or necessarily import any moral turpitude, or premeditated fraud, but that legal fraud which results from the transactions of a party, as in this case, where the conveyance is fraudulent as to creditors. That this is the true construction of the statute is conclusively settled in the following cases : Wescott v. McDonald, 22 Maine, 407; McLean v. Weeks, 65 Maine, 425 ; Morton v. Morton, 5 Cush. 528.</p> <p>cited: French v. Holmes, 67 Maine, 186, and cases cited.; Seward, v. Jackson, 8 Cow. 406 ; R. S., c. 103, § 6; Usher v. Richardson, 29 Maine, 415; French v. Peters, 33 Maine, 396 ; Adams v. Palmer, 51 Maine, 487; Fowler v. Shearer, 7 Mass. 19; Stearns v. Swift, 8 Pick. 533.</p>

On exceptions and motion for new trial. Case for forcibly ejecting the plaintiff from the cars of tbe • defendant at Comptonin Canadaonthe 30th day of March, 1875, while he was riding upon a ticket purchased of the defendant at □Portland, on the day of its date, which read as follows : GRAND TRUNK RAILWAY. Good only for continuous trip within two days from date. -•lO '.CO 7101 TÍ ¡K 03 03 «> r — I O ^ += -U +=> n a O O P-i S Mch.

<p> Deed. Mistake. Description. Exceptions. </p> <p>A deed described the premises by metes and bounds, and excepted therefrom a lot previously conveyed to the grantee by Boswell Hitchcock. The records disclosed that this lot was conveyed to the grantee by Urban L. Hitchcock, and not by Boswell. Held, that this mistake in the name does not vitiate the exception when by the aid of the records referred to, there is enough of the description which is true to make certain the lot intended by the exception.</p> <p>Where a deed describes the land as the premises convoyed to the grantor by another deed, to which reference is made for a particular description,' it will not give the grantee title to a lot which was excepted from the deed to which reference was made, although the title to the excepted lot was in the grantor of the last deed at the time of executing the same.</p>

Bill in equity, heard on bill, answer and proof. The bill sets out that Willard E. Plummer, having a permit to cut and carry away hemlock logs from land in Edinburg during the logging season of 1872-3, cut about seven hundred thousand feet of such logs, and February 18, 1873, assigned the permit to the plaintiffs to secure them for the lumbering supplies, etc. furnished him: that the logs while on the way to market were greatly damaged and destroyed by the wrongful acts of…

<p>On report.</p> <p>; Upon so much of the evidence as was pertinent and legally' admissible, the law court was to render such judgment as the law, and facts required.</p> <p>The material facts appear in the opinion.</p> <p>Tenants in common may hold different interests. One may have an estate in fee and the other a life-estate. 1 Wash. R. P. 416.</p> <p>A tenant for life of a quarry is entitled to work it and take the profits. 1 Wash. R. P. Ill; Billings v. Taylor, 10 Pick. 460.</p> <p>A tenant in common may maintain assumpsit against his co-tenant. S. S., c. 95, § 16; Cutler v. Currier, 54 Maine, 90.</p> <p>True, there is a principle of law running through the reports, that the title to real estate cannot be tried in an action of’ assumpsit, but isn’t the reason for it a thing of the past ?</p> <p>The statute cited authorizes assumpsit by one tenant in common-against another, but the first step to be taken in such a case is to prove title, to show that plaintiff’ is a co-tenant. If his title is disputed the main issue nuiy be upon that question, and if he prevails upon that, if he proves that he is a tenant in common, then the statute gives him a remedy by assumpsit. If that is not the construction of the statute, then it is a nullity, for there can be no case so clear but that the defendant may raise the question of title.</p> <p>cited : McLellan v. Cox, • 36 Maine, 95; Page v. Swanton, 39 Maine, 400; Brigham v. Winchester, 6 Met. 460; Wyman v. Hook, 2 Maine, 337; Rogers v. Libbey,- 35 Maine, 200; Howe v. Russell, 41 Maine, 446; Porter v. Hooper, 11 Maine, 170; Bigelow v. Jones, 10 Pick. 161; Miller v. Miller, 7 Pick. 133 ; Buck v. Spofford, 31 Maine, 34; Shepard v. Richards, 2 Gray, 424; Peck v. Carpenter, 7 Gray, 283 ; Moses v. Ross, 41 Maine, 360; 106 Mass. 318.</p>

<p> Attorney at law. Jtelainer fee. Usage. </p> <p>The proper scope and application of the right to charge retainers, is to remunerate counsel for being deprived, by being retained by one party, of the opportunity of rendering services for and receiving pay from the other.</p> <p>There is no such general usage or custom among lawyers in this State, to charge retainers in all contested cases in which they are employed, as to justify an instruction to the jury as a matter of law, that in contested cases and for reasonable amounts such fees were a legal charge in each case in which he was engaged. And such an instruction, in an action by an attorney at law, for services and disbursements in behalf of a client, is erroneous, when the account sued embraces besides the charges of retainers in each contested case other charges covering all the services actually performed, and disbursements made in behalf of his client.</p>

On exceptions. Ah action on the case for deceit in selling to the plaintiff six wagons, in which the plaintiff alleges that the defendants had no interest in fact. The writ was dated February 23, 1880. Plea, general issue. The facts are stated in the opinion. From Lord Cone, to the present time, it has been the glory of the common law that it abhors fraud in whatever shape it may present itself.

Replevin for certain granite, cut stone, attacked by tke defendant, as skeriff, on various lien writs against George W. Collins, tke owner of tke quarry, where tke stone were quarried, and in favor of laborers employed by Collins in quarrying and cutting tke stone.

On EXCEPTIONS. Indictment of Edward E. Wiggin and Edwin Á. Getcholl, as common sellers of intoxicating liquors from December 15, 1880, to the time of finding the indictment at the April term of court, 1881.

ON EXCEPTIONS. Action of assumpsit upon an account annexed, which was as follows: The action was entered at the January term, 1881, and at the next [April] term, the twentieth day, the defendant filed a general demurrer to the plaintiffs’ declaration. A hearing was had on the same day and the demurrer was overruled and adjudged frivolous and intended for delay.

On exceptions. Appeal from the doings of the county commissioners in laying out a county way through the towns of Wayne, Readfield and Winthrop. A committee was appointed by the court on the appeal, and they made their report to the court at the October term, 1880, affirming the decision of the county commissioners. Objections were filed by the appellants to the acceptance of the report, and overruled by the court. To this ruling the appellants excepted.

ON EXCEPTIONS. Search and seizure. After verdict the defendant filed a motion in arrest of judgment; the motion was overruled and exceptions were taken to that ruling.

<p> Promissory Note. Indorsement. Transfer. </p> <p>'An action may be maintained by the indorsee of a promissory note payable to tlie order of a corporation and indorsed thus: “ Charles B. Eolsom, Treas,” by one who held that office in the corporation and was authorized to perform the financial business thereof,</p> <p>f Such an indorsement is sufficient to transfer the note.</p>

ON EXCEPTIONS. Assumpsit to enforce by attachment a lien on a certain mark, (called a double witness) of logs in St. Croix river, for seventy-two days’ work hauling the logs. Writ dated October 28, 1878. Charles F. Todd, the owner of the logs, appeared and pleaded general issue which was joined.

ON EXCEPTIONS. Assumpsit on account annexed. Writ dated March 11, I860, entered at the October term, 1880. On the first day of the return term the defendant filed an account in set-oif, and an offer to be defaulted for fifty dollars.

ON EXCEPTIONS. Assumpsit to recover compensation as a broker, for selling or obtaining a purchaser, who entered into the following written contract with the defendants, for the purchase of a quantity of ice. (Contract.) Bangor,. April 19th, 1880.

' ON agreed statement of facts which are sufficiently stated in the opinion. cited: Cooley, Torts, 340 ; 1 Thompson, Negligence, 196, 209, 213; Hoyes v. Golby, 30 N. H. 143; JBarnum v. Van JDusen, 16 Conn. 200; Sheridan v. Bean, 8 Met. 284. The defendant had no such possession of the cows as would be necessary to mate him liable in this action. There was no contract by which he was to have the care and custody of the animals.

On agreed statement. Assumpsit. Writ dated September 6, 1879 and served upon tbe trustee September 9, 1879.

The first case was a submission under the statutes, made in September, 1879. Tbe report of the referees was accepted at the March term, 1880, and judgment ordered for the amount found by the referees. To this order exceptions wore filed and allowed.

INDICTMENT for violation of special stat. 1868, c. 448, entitled 'an act to prevent throwing slabs and other refuse into Penobscot river.” The respondents hired a shingle machine and contracted with another party to run it for them, the other party conducting the running, and controlling the mill himself. The lumber belonged to the respondents.

ON REPORT. Indictment under special stat. 1868, c. 448, entitled anact to prevent throwing slabs and other refuse into Penobscot river.” The facts are stated in the opinion. Bj the terms of the report, by consent of parties, if both or either of the respondents are liable, they were to plead nolo contendere; if not liable, the indictments to be dismissed. It is admitted that the object of the statute — the keeping of refuse from the river — is a proper subject of legislation.

<p>ON REPORT.</p> <p>Indictment under special stat. 1868, c. 448.</p> <p>The opinion states the case.</p> <p>cited: Winslow v. Kimball, 25 Maine, 495 ; Hart v. Oléis, 8 John. 41; United States v. Coombs, 12 Peters, 80; McOluslcey v. Cromwell, 1 Neman, 602; The Watervliet Turnpike Co. v. McKean, 6 Hill, 620; Pillow v. Bushnell, 5 Barb. 156, 159 ; Cibson v. Jenney, 15 Mass. 206; Gore v. Brazier, 3 Mass. 539; Putnam v. Longley, 11 Pick. 490 ; Pitman v. Flint, 10 Pick. 506 ; Opinion of the Justices, 22 Pick. 573 ; Jackson v. Leiois, 17 John. 477 ; People v. FT. Y. Central R. R. Co. 3 Neman, 78; 5 Abbott Digest, 79, § 31; King v. The Company of Prop, of M. & S. W. W. 630; 8 E. C. L. 168; Casher v. Holmes, Clerk, 2 Bam. & Adol. 592; 22 E. C. L. 146; 79 E. C. L. 511; Jones v. Jones, 18 Maine, 313; Ogden v. Strong, 2 Paine, 587; Hol-brook v. Holbrook, 1 Pick. 250; Me-ndon v. County of Worcester, 10 Pick. 243; 5 Abbott’s Digest, 80; Heard’s Criminal Law, 66, 67, 68, 69; United States v. Reed, 1 Lowell, 233; United States v. Pond, 2 Curtis, C. C. 268.</p> <p>Prior to the year 1868, the throwing into the river of all kinds of waste substances, from mills employed in the manufacture of lumber bn Penobscot river, had been the custom from the earliest establishment of such mills ; and, indeed, such was the original custom everywhere from the first settlement of the country. In some of the States this custom, not unreasonably exercised, had been declared to be a legal right. Palmer v. Mulligan, 3 Caines, 307; Snow v. Parsons, 28 Yt. 459; Jacobs v. Allard, 42 Yt. 303.</p> <p>But the court in this State, while not denying the right, had, however, limited it so far as to make parties exercising it, assume the risk of obstructing a common highway or of injuring lower riparian proprietors. Veazie v. Dwinel, 50 Maine, 490 ; Wash-burn v. Gilman, 64 Maine, 163.</p> <p>In 1859 this right received legislative recognition in "An act to define the liability of mill owners,” public laws c. 98, a proviso to which declares : "But nothing herein contained shall be construed to create any restriction upon the present rights of operators of mills, to float their waste matter from their mills upon any river or stream.”</p> <p>In 1868 "An act to prevent the throwing of slabs and other refuse into the Penobscot river” was passed, under which these actions are prosecuted.</p> <p>By this statute, that which had hitherto been lawful, was made an offence punishable by indictment.</p> <p>Of such offences Bouvier says, their " criminality consists not in the simple perpetration of the act . . . but in its being a violation of a positive law.” Law Diet. Crime.</p> <p>With this explicit declaration of what the offence consists we come to inquire wherein the respondents have violated any "positive law.”</p> <p>In the manufacture of shingles there is of necessity much waste. That waste most obstructive to navigation is the bark, slabs and refuse timber taken from the bolts. The statute clearly prohibits the thowing of these into the river. The two other necessary waste products from the process of making shingles are the sawdust and jointer shavings.</p> <p>In the enumeration of the various classes- of waste, prohibited by the statute, "sawdust” and "shavings” are not to be found. The words "wood” and "timber,” have a well established and popular significance, as representing specific subjects. They designate commodities of commercial value and importance, the sale and admeasurement of which are regulated by law. Nobody, however wild his imagination, could conceive that "wood” and "timber” designate "sawdust” and "shavings.” Nor can their representative character be changed by the qualitative word "refuse.”</p> <p>"Words and phrases are to be construed according to the common meaning of the language.” B. S., c. 1, § 4.</p> <p>The difficulty with the case, as presented by the government, lies in the failure to discriminate between "refuse wood” and wooden refuse. If the statute had prohibited the latter, there might have been less room to question the position taken. As it is, however, it would be a gross violation of all principles for the construction of penal statutes to hold the respondents. Bishop on Statutory Crimes, § §, 190, 193, 194, 220; Oleavéland v. Norton, 6 Cush. 383 ; United States v. Wiliberger, 5 Wheat. 76.</p> <p>It will be observed by the petition (in the case) which was the inducing cause of the legislation upon the subject, that if the prayer of the petitioners had been fully granted, " sawdust and other materials which shall fill up, or obstruct, or have a tendency to fill up said river, or obstruct the navigation thereof,” would have been within the statute, and the act, with which the respondents are charged, would have been expressly prohibited. In the face of this conspicuous denial of that part of the petition, it is too much to believe, that the omission was not intentional.</p> <p>The history of legislation in this State, upon the subject of throwing waste into streams, shows that no lack of proper words to express what was proposed, has ever been manifested.</p> <p>It is believed that the initiatory step in this direction is c. 30, special laws, 1840, for Machias river; the enumeration there being "slabs, lathings, edgings or any other refuse timber of any nature whatsoever or other materials, whereby the navigation of said river may be impeded or injuriously affected.”</p> <p>This was followed by special laws, c. 230, 1854, Narraguagus river, the enumeration there being, "slabs, lath or board edgings, or refuse timber of any sort, or other materials whereby the navigation,” &c.</p> <p>And the Penobscot act of 1868 was next; in which the words, "or other materials,” as we have seen, are noticeably omitted.</p> <p>But to show more particularly that the legislature has never failed to use apt words when intending that shingle sawdust and jointer shavings should be brought expressly within the inhibition of a statute, attention is called to the Piscataquis act, special laws 1878, c. 94, wherein the very substances proscribed by the Penobscot act, are not only enumerated, ipsissimis verbis, but added thereto are the following: " or any shavings or fibrous material created by the manufacture of shingles.”</p> <p>Also the Kenebec act, c. 80, special laws of 1878, which interdicts throwing into the river "slabs, edgings, or any shavings or fibrous material created by the manufacturing of shingles, . . . whereby the navigation of said river may become impeded,” &c.</p>

<p>ON REPORT OF FACTS AGREED.</p> <p>From the agreed statement it appears, that a complaint was made before a trial justice against the respondent, for the larceny of two sheep, January 17, 1880, alleged to be of the value of five dollars each. A warrant was issued, upon which respondent was tried before the justice, who ordered the respondent to recognize for his appearance before the Supreme Judicial Court, Somerset county, to await the action of the grand jury. At the March term, an indictment was found by the grand jury against Mullen, for larceny, the property being alleged to be of the value of ton dollars. If the Supremo Judicial Court has jurisdiction, the case is to stand for trial.</p> <p>cited: E. S.,, e. 131, § 1; State v. Billing Lon, 33 Maine, 146; E. S., 1841, c. 162, § 13; E. S., c. 77.</p> <p>The respondent has been once tried by a court of competent jurisdiction, and the Supreme Judicial Court has not now, nor never had jurisdiction. E. S., c. 131, § § 1, 4; e. 132, § 3; Stats v. JBonneij, 34 Maine, 223.</p>

<p> Depositions in perpetuam. a. 8., o. 107. </p> <p>The provisions of the statutes authorizing the issuing of commissions by the Supreme Judicial Court for the taking of depositions in other Slates or foreign countries, to perpetuate the testimony of witnesses living out of the State, do not limit the power of the court to issue these commissions to cases where some one, or more, of the persons supposed to be adversely interested resides within this State. The court may issue such commissions though all the adverse parties reside without the State.</p>

<p>ON REPORT.</p> <p>The facts appear in the opinion.</p> <p>cited: Bath v. Miller, 53 Maine, 308 ; 40 Maine, 284; Tuck v. Moses, 58 Maine, 461; Bartlett y. Kidder, 14 Gray, 449; Davis v. Harding, 3 Allen, 302; 22 Wallace, 208.</p> <p>It would seem on principle, that the measure of damages would be only the value of the plaintiff’s interest. Damages are intended for compensation only, and when the plaintiff is paid the value of his interest he is fully compensated.</p> <p>Suppose they were co-tenants, and instead of replevying and selling, the defendant had taken and sold the property. In such case, the plaintiff would have had no bond to put in suit, but would have brought his action of trover, or money had and received. What would have been the measure of damages in such actions ? In such case it could not be said that defendant received the whole five hundred dollars, to the use of the plaintiff, when he, the defendant, owned half of it.</p> <p>In trover, it is clear that plaintiff could only recover the value of his interest. That was all that plaintiff recovered in Wfieeler. v. Wheeler, 33 Maine, 347; Weld v. Oliver, 21 Pick. 559.</p> <p>Now if instead of taking and selling, the defendant replevied and sold, and so gave the plaintiff security for Ms interest, it is hard to understand why the plaintiff should receive more, or the defendant pay more. In Bartlett v. Kidder, 14 Cray, 449, this question is settled as between co-tenants, and it is there decided that the plaintiff in the replevin bond suit, can only recover the value of his interest.</p> <p>Now in the opinion in tliis rejfievin suit, Crabtree v. Clqpham, 67 Maine, 326, the principles of cases between co-tenants are expressly applied to cases between partners. It is there stated, that nothing appearing to the contrary, the parties are presumed to be equal owners. In assessing damages, the court say interest on one-half the sum would not be adequate compensation for the detention of a half interest, and their assessment of damages is based on the idea of one half interest only. The facts now presented are precisely the same, so that on principle and authority, the plaintiff can only have judgment for two hundred and fifty dollars, and interest, from January 7, 1878.</p>

ON exceptions from superior court, Kennebec county. The case is stated in the opinion. cited: State v. Flynn, 36 N. H. 64; Decker v. Somerset Ins. Go. 66 Maine, 408. The instruction complained of was erroneous. I do not understand that the law makes any distinction whatever in the weight of testimony required under a search and seizure and any other crime. In all criminal prosecutions the same weight, degree and amount of testimony are required for a conviction. 3 Greenl.

ON a motioN to set aside the verdict in superior court. The verdict was for plaintiff for $3554.23. At the trial Warren A. Farr, nominally one of the defendants, a brother of the plaintiff and a witness in her behalf, testified : That agreement with my creditors was put in writing. [Compromise marked 'Gh’ shown witness.] Should say that was it. I was active myself in bringing this about. The several parties whose signatures appear there, signed and delivered it to me.

•On report. The law court to enter such judgment as the law and the facts require. This was an action of debt on a recognizance to prosecute an appeal from the decision of a trial justice in a civil action, entered into by the defendant’s intestate, as surety for the debtor, Grould, in accordance with It. S., c. 83, § 18. The judgment of the appellate court was for the plaintiffs.

ON REPORT. Assumpsit on account annexed for two hundred and eighty-one dollars and ninety-one cents. YÍcZ damnum, six hundred dollars. Service was made on two of the trustees July 25, 1879, and on the third, August 21, 1879. June 30, 1879, the defendant made an assignment to one of the trustees'under E. S., c. 70, for the benefit of creditors, and all the goods, effects and credits in the hands of either of the trustees, were held by virtue of that assignment.

ON EXCEPTIONS. An appeal from the court of insolvency. The appellee, Frank Kilgore, was duly adjudged an insolvent, and petitioned the court of insolvency for a discharge.

On exceptions. Assumpsit to recover the amount paid by the town for the support, &c. of the defendant in the insane hospital. At a hearing upon the question of damages, the defendant offered evidence of the financial ability of the defendant to pay the amount sued for. The presiding justice ruled as a matter of law that such question was not open to the defendant, and the defendant alleged exceptions.

Ox REPORT. This is an indictment for violation of B. S., c. 44, § 1, by traveling from place to place, and peddling in the town of Freeman, goods, wares, and merchandise, not lawfully raised or manufactured in this State. The respondent pleaded not guilty, but admitted the selling of the goods in the manner alleged in the indictment. If the respondent can be legally convicted on the indictment and facts agreed, judgment is to be for the State.

<p>On REPORT.</p> <p>Appeal from a decree of judge of probate made to obtain a construction of the fourth item of the will of Ralph Harley, deceased, which is stated sufficiently in the opinion.</p> <p>It was " agreed that the court shall have the power of determining the construction of the will, and whether the funds in the hands of the respondents shall be disposed of as is provided in article four of the will, or whether the heirs at law are entitled to it.”</p> <p>The following was the decree of the probate court:</p> <p>(Decree.)</p> <p>"Lincoln, ss. Probate court, February term, A. D. 1880. Ordered and decreed: That the sum of eleven hundred and twenty-five and $0 dollars, balance due from the said I. C. Welcome and F. L. Carney, as executors of the last will of Ralph Harley, the said deceased, as appears by above statement of account by them made and allowed, be distributed to them as trustees under the provisions of said will. They giving bond in the sum of twenty-three hundred dollars, for the faithful discharge of the trusts named therein, and that they close their account as executors of the estate of said deceased, and charge themselves with said amount in a new account as said trustees.</p> <p>Almore KenNedy, Judge.”</p> <p>The gift of the remainder in this will is too vague, indefinite and uncertain to be sustained.</p> <p>It is not declared to whom nor where the distribution of the books is to be made, in what country or part of the world, to what race, nation or people. They are to be "religious books.” But it is not declared to what religion they shall relate. In the discretion or will of the trustees may mean pagan, mahomedan buddhistic or Christian ; and if Christian, roman or protestant.</p> <p>The gift is not for charitable uses. It is not declared to be a charity. The will does not indicate that the books are to be distributed among the poor.</p> <p>The stat. of charitable uses (43 Eliz. c. 4), does not embrace the objects of this gift. The devise is therefore not aided by it, and it must stand or fall as at common law, without the aid of that statute.</p> <p>Either there must be some words in a gift declaring it to be for a charitable purpose, or the purpose declared must in its very nature be a charity.</p> <p>The reported cases on this subject are innumerable, and many of them hard to reconcile, but I am able to find none which declare a gift in such words as those in this will to be for a charitable use. See Dole v. Lincoln, 31 ■ Maine, 422 ; Brown v. Yeall, 7 Ves. Jr. 51; James v. Allen, 3 Merivale, 17 ; Bilis v. Belby, 7 Simons, 352 ; Williams v. Kershaw, 1 Keene, 232 ; Morice v. Bishop of Durham, 9 Ves. Jr. 399 ; 10 Ves. Jr. 521; Eedfield on Wills, Part n, 778, 779, 780, 782; Attorney General v. Haberdasher’s Oo. 1 Mylne and Keene, 428; Ommauney v. Butcher, Turner and Eussell, 260; Heiss v. Murphy, 40 Wis. 276 : Hash v. Morley, 5 Beav. 182 ; Eedfield Wills, Part i, 697, et seq.</p> <p>" Eeligion” is defined by Worcester "as any system of faith and worship.” It would be impossible for a court to decide to what religion or religious books this fund should be devoted without further indication in the will itself.</p> <p>cited: Going v. Bmery, 16 Pick. 107; Dreio v. Wakefield, 54 Maine, 291; Jackson v. Phillips, 14 Allen, 539; Bverett v. Oarr, 59 Maine, 325; Balionstall v. Banders, 11 Allen, 446; Attorney General v. Btepney, 10 Ves. 22.</p>

On exceptions. Writ of entry to recover possession of a lot of land in Buck-field, to which the plaintiff claimed title by virtue of the following deed from the collector of taxes : (Deed.) State of Maine. To all people to whom these presents shall come.

On report. Trespass. The writ was dated October 23,1877. The action was referred by rule of court. In addition to the facts stated in the report it was admitted that the plaintiff at the time he took his deed to lot C, referred to in the report, had knowledge of the sale of the barn, the title to which is in controversy. (Referee’s report of facts.) York, ss.

<p>Pauper. Minor, when emancipated.</p> <p>A child at eight years of age, having no mother, commenced living' with H and wife; for four years her father paid something towards her hoard and furnished a portion of her clothing, when with her consent and her father’s consent H and wife proposed to adopt her; from that time until she was twenty-one she lived in H’s family, assumed his name, was fed, clothed and sent to school (one term at an academy) by him, and treated by H and his wife as their own child; her father never resumed his parental duties and obligations nor asserted his parental rights and authority. Held, that the child was emancipated from the father notwithstanding' that H and wife had failed to adopt her by proper proceedings in probate court as they had promised to do.</p> <p>Complete emancipation may talse place although a statutory adoption is never begun or thought of.</p>

<p>S. 8., a. 81, § § 67, 68. Mortgage. Attachment.</p> <p>One who lias paid to the person entitled thereto the amount due upon a mortgage of real estate, (claiming to have attached the right to redeem,) and received the release of the mortgagee’s interest therein, as provided by 11. S., c. 81, § § 57, 58, may maintain a writ of entry for possession against the owner of the equity of redemption.</p> <p>Such an action may be maintained under the circumstances stated, even though the attachment was not valid.</p>

<p>On exceptions and motion to set aside the verdict.</p> <p>Action of assumpsit for labor and services performed in the repair of highways in the town of Lexington, amounting to $46.97, in pursuance of a contract with the selectmen in behalf of the town.</p> <p>The material facts appear in the opinion.</p>

On exceptions from superior court, Kennebec county. The opinion states the case. This writ was served and notice given to the corporation as required by statute. R. 3., c. 81, § 18. And it binds the company, although notice of the service is not communicated to any other officer. Wade on Law of Notice, § 1309 ; 1 Redf. Railways, 557; JSTewburg Gar Spring Go. v. Union Rubber Go. 4 Black. 1; Boyd v. G. and 0.

On REPORT, the law court to render such judgment as the law and evidence warrant. Assumpsit upon the following town order: $2000. , Stockton, July 16, 1878. To Joseph Seger, town treasurer, or his successor : Pay to Belfast National Bank, two thousand dollars, it being for money hired for the year 1878. C. C. Eoberts, ) Selectmen E. H. Crocker, > of No. 68.

<p>Indictment. Adultery. Mvidenee. Scat. 1879, c. 92, § 2.</p> <p>A defendant, in a criminal prosecution, testifying in liis own behalf, may be cross-examined in full, in the same maimer and to the same extent that any other witness could be.</p> <p>He is not to be protected against cross-examination because his answers may implicate him in other criminalities besides the offence with which he is. charged, if the connection is such that the proof is relevant to the issue.</p> <p>The statute of 1879, which provides that he shall not bo compelled to testify' on cross-examination to facts which would convict Mm of any other crime than that for which lie is on trial, only excludes compulsory admission of independent and extraneous offences, evidence of which is offered merely to affect character or credibility.</p> <p>The cross-examination of a defendant, legally obtained in one criminal prosecution, is admissible as evidence in another criminal prosecution against him, if pertinent to the issue.</p> <p>It is not error, under an indictment for a single act of adultery, to omit to specify some particular act as the offence to be proved, where several acts are testified to between the same parties, neither side asking for such specification.</p> <p>in a prosecution for adultery, acts prior and also subsequent to the act charged in the indictment, when indicating a continuousness of illicit intercourse, arc admissible in evidence for the purpose of showing the relation and mutual disposition of the parties, the reception of such evidence to be largely controlled by the judge who tries the cause, explaining to the jury its psupose and effect.</p> <p>It is a general rule of practice in this State that, when one side without objection introduces evidence irrelevant to the issue, which is prejudicial and iiannful to the other side, the other party is entitled to introduce evidence, that goes directly and strictly to contradict and disprove it.</p> <p>On the trial of the defendant for adultery with Miss Small, a government witness testified that frequently in the summer and fall, between eight and nine in the evening, she saw the defendant go to Miss Small’s house, cali her out, talk with her at the gate, and once walk to the ship-yard with her. The defendant denied this, and offered to show by another witness that, during the sanie summer and fail, in the evening, such other witness had several times seen a man, not the defendant, call Miss Small out and stand with her at the gate, and walk to the ship-yard with her; Held, that the testimony offered was admissible upon the question of the identity of the defendant with the person described by the first witness.</p>

On motion to set aside the verdict rendered in the superior court, Cumberland. An action on the ease for damages sustained by the plaintiff for personal injuries caused by an alleged defect in the sidewalk on Milk street, in Portland. The opinion states the material facts.