Volume 73 — Maine Reports

On agreed statement. An action of scire facias whereby the plaintiff seeks to obtain an alias execution on a judgment recovered by the plaintiff against the defendant, on the third day of October, 1877, before the Supreme Judicial Court, Oxford county, for the sum of §254.46, debt or damage, and $13.78, costs of suit.

On agreed statement of facts from superior court. It was agreed that this action was brought on a judgment which was recovered in an action on account annexed for necessaries furnished by the plaintiff for the defendant, within the meaning of R. S., c. 86, § 55.

<p> Life Insurance. Adapted Children. </p> <p>By a life insurance policy in the name of a wife on the life of a husband the amount of the policy was payable to the wife, her executors, administrators or assigns, if she survived her husband; otherwise to their children for their use or to their guardian if under age. The wife did not survive her husband. Held, that the children were the sole beneficiaries and the policy became payable to them.</p> <p>In such a case where a child by adoption is the only child, and is of age, and the circumstances show that the parties intended that he should be included in the benefits of the policy, he is entitled to all the proceeds of the policy and an action upon it should be in his name.</p>

On exceptions. Petition to review a judgment rendered in the superior court, Cumberland, at the September term, 1880, against this petitioner and in favor of the respondent, for one thousand dollars debt or damage, and costs of court taxed at $14.81.

Bill in equity, heard on bill, demurrer and joinder. The bill sets forth the facts stated in the opinion, and prayed that Elvira Spaulding and Seth Spaulding by a decree of this court be required to secure said notes in substance as they and each of them in equity and good conscience ought to have done.”

On exceptions. The exceptions state that the question involved is the sufficiency of the notice of the appeal, from John E. Pulsifer to Jabez T. Waterman, as required by E. S., c. 66, § 11. (Notice of appeal.) To the honorable judge of probate for the county of Androscoggin.

<p> Poor debtor. Citation. </p> <p>la an action on a poor debtor’s bond, where tbe debtor’s citation alleged his arrest on an execution issued on a judgment recovered “on the first Tuesday of March, A. D. 1880, by the consideration of the justice of the superior court then held at, ” &c. and gave the date of the execution and other particulars sufficient to identify the judgment, (which was the only one ever recovered by the plaintiff against the principal in the bond,) and the certificate of the magistrates, recited a judgment identical in all respects with the one described in the citation, except that it says it was “recovered . . . by the consideration of the justice of the superior court, at a term of said court, held at, &c. on the first Tuesday of March, A. D. 1880.”</p> <p>Held, 1. That there was no variance that would invalidate the certificate of the debtor’s discharge.</p> <p>2. That an averment in the citation that the bond had not expired, was not necessary when the citation gave the date of the bond, and it thereby appeared that the proceedings were seasonable.</p> <p>3. That it was sufficent to aver in the citation that E. S. R. upon whom it was served was the attorney of record of the creditor, without adding the words, “in the suit, ” and that the citation was not invalidated by the omission of the street and street number of the lawyer’s office where it was returnable, in the absence of all evidence tending to show that there was any difficulty in finding it.</p>

On report. Au action of dower which the plaintiff claimed in certain real estate in Augusta, as the widow of Loyal Lovejoy. The opinion states the material facts. The plaintiff’s husband had acquired a sufficient title to the land in which dower is claimed, by possession, if in no other way, to make her dowable. 1 Washburn on Real Property, 189, and cases there referred to. The plaintiff was dowable in the equity of redemption, see E. S., c. 103, § 12.

On motion to set aside the verdict. On appeal from the municipal court of Calais. The writ declared in assumpsit upon an account annexed. The verdict was for the plaintiff in the sum of $77.49. (Account annexed.) Messrs. Wm. MCDONALD & SON, To W. E. SLAYTON, Dr.. 1878. (1) Dec. 16. To 402 Jbs. lathe castings, 5 $20.10' (2) * 27. “ 40 “ 9 in. pulley and shin, machine, 5 2.00 1879.

On report. Trespass for breaking and entering plaintiff’s close,' called lot No. 13, in Cyr plantation, and tearing down and destroying the plaintiff’s fence, and plowing and digging plaintiff’s land. Plea, not guilty, and a brief statement alleging that there was a public way by dedication and acceptance, over and upon the lot No. 13, and the acts complained of were committed within the limits of that way, in removing obstructions and making necessary repairs.

<p>Mill lot. Private ways. Judicial act. B. S., c. 18, § § 18, 23.</p> <p>A mill site upon which a mill is erected, is cultivated, or improved land within R. S., c. 18, § § 18, 23.</p> <p>A private way is only authorized by those sections of the statutes from the petitioner’s land to a town or public highway.</p> <p>The locating a private way by the selectmen of a town is a judicial act requiring disinterestedness on their part in making the location.</p> <p>The sons or nephews of a petitioner for a private way are not disinterested, and the location of such way by them is void.</p>

On agreed statement of facts.. Trover for one promissory note and a mortgage of real estate to secure the same. The material facts are stated in the opinion. By the terms of the agreement, if the action could be maintained, a default was to be entered, and damages to be assessed at nisi jjrius, otherwise plaintiff nonsuit. I. The property in controversy is the subject of pledge.

On exceptions. Action on the case. The opinion states the material facts.

<p> Gift. Savings hank deposit. Trust. </p> <p>Where A deposited in a savings bank money in tlie name of B, but without her knowledge, “sub. to A,” in the books of the bank, and on the bank pass book, received the dividends and such portion of the principal as she required for her own use, and held the pass hook always in her possession till her death; Held,, that there was not a gift inter vivos. That there was n'o trust in favor of B. That if there was a trust, B was trustee for the depositor, and could not claim or hold the deposit in her own right.</p>

<p> Gift. Savings bank deposit. Trust. </p> <p>When A Raving seventeen hundred dollars in a savings bank, made a further deposit in the name of B without his knowledge, of two thousand dollars, retaining the pass book till death, and drawing the dividends and such portions of the principal for her own use as she chose; Held, 1, that the title to the deposits remained in the depositor and subject to her control. 2, that if the deposit was' in trust, that B was trustee for the depositor and not cestui que trust.</p>

On demurrer to bill in equity. The plaintiffs were the owners of the schooner Sarah F. Bird, and the bill alleges that Freeman C. Hall was master of the schooner and sailed her on shares from February 21, 1878, to June 14, 1880, and has never come to a final account and adjustment of the affairs of the vessel during that time with the owners, and they pray that the defendants may be required to make a full and true answer to this bill, that a just and true account of the…

On exceptions. Writ of entry for four-ninths of certain real estate in Winthrop, and for the rents and profits of the same from June 1, 1877. Writ was dated February 17, 1880. Plea, general issue and brief statement that the attachment in the suit in which the judgment was rendered upon which the levy was made, under which the plaintiff claims title, was fully discharged prior to the rendition of such judgment. The material facts are stated in the opinion.

On exceptions. Assumpsit on the following promissory note. $375. Canton, May 17, 1880. Four months after date, I promise to pay to the order of First N. B’k Auburn, Me. Three hundred seventy-five Dollars at first Nat. B’k Auburn, Me. Value received. No. 4594. Due, Sep. 17-20. N. L. Marshall.” (Indorsed,) — Otis Hayford.

On report. Assumpsit on two notes of hand, signed by the defendants, ■payable to the plaintiff, dated June 21, 1876; one for §27.96, payable in two years; the other, for §21.00, payable in two .years and nine months. The opinion states the facts, the following being the plaintiff’s agreement referred to in the opinion: Bangor, June 21, 1876. Whereas, I have this day made an exchange of property and securities with Mrs. Martha C. Gidney, and Charles M. Gidney, of Houlton, Me.

On report. Keplevin of one fire proof safe, with patent inside bolt arrangement, size No. 21, Morris and Ireland manufacture, of the value of two hundred and fifty dollars. Writ dated March 1, 1877. Plea, noncepit, and a brief statement, alleging title at tbe date of the writ, in one Jeremiah Furbush. The opinion states the facts. The following is a copy of the order referred to in the opinion : Kocldand, October 22, 1873. Messrs. Morris and Ireland, Boston.

On exceptions to the ruling of the court in overruling a demurrer to the indictment. (Indictment.) State of Maine. Knox ss. At the Supreme Judicial Court, begun and holden at Rockland, within and-for the county of Knox, on the second Tuesday of March, in the year of our Lord, one thousand eight hundred and eighty-one.

<p> Will. Life-estate. Taxes. </p> <p>A testator inserted the following clause in Ms will: ‘ ‘ And it is my desire that if Orlando Garland shall pay the interest annually, on what is due from Mm, to wit, on $541, that he he not disturbed in Ms possession of the place where he now resides.” Held, 1; that Orlando Garland took a life-estate in the premises referred to, on condition that he should pay annually to those lawfully representing the estate, the legal interest on $541. 2; that he should pay all taxes assessed upon the premises during his life-tenancy.</p>

<p> Will, construction of. </p> <p>,M. eighty-three years of age, in 1876, made his will, giving, among other bequests to his grandson D. the plaintiff, then fourteen years old, (who had lived with him from the time he was two years old, his mother being dead and his father worthless,) five dollars to be paid as soon as practicable after the testator’s decease, and “a further sum of one hundred dollars, and a suit of clothes if he remains with me until he is twenty-one years of age, to be given him by my said son, J. M.” who had all the property, real and personal, ■ subject to certain bequests. The personal estate appeared to be ample to meet all the calls of the will. The executor, qualified as such in January, 1877, but never settled an account. He paid to an attorney employed by plaintiff’s father (who was never his legal guardian,) the five dollars first mentioned, but on demand by plaintiff’s legal guardian, in the winter of 1879, refused to pay anything. The plaintiff remained with his grandfather while he lived, and with his grandmother on the place as long as she or the defendant wished him to do so. Ho complaint was made of his conduct there, or of his leaving when he did.</p> <p>ISeld, that the payment of the five dollars to the father’s attorney would not relieve the defendant from paying, on demand of the legal guardian, the first payment never having in any manner enured to the plaintiff’s benefit.</p> <p>.Held, also, that the testator intended to make the other legacies depend on the voluntary act and conduct of the plaintiff, and not upon the contingency of his own life’s being prolonged for seven years from the time of the making . of the will; and the plaintiff, having performed the condition until its further performance was rendered impossible by the act of God, was entitled to the other legacies. Ho time being fixed for their payment under the -circumstances here developed, they should have been paid at the end of a .year from the time defendant became executor. Having rendered no account, n'or shown his readiness to pay, he is liable to interest from that time.</p>

On report. Writ of entry to recover certain premises on Park street in Lewiston. The writ was dated April 5, 1880. The plea was nul disseizen, with a brief statement setting up title by possession. The material facts are stated in the opinion.

On report from superior court. An action for pauper supplies furnished one Sherwood. To maintain the issue the plaintiff offered to prove that the alleged pauper was emancipated when he was fifteen years of age, and from that time resided and had his home in the city of Portland, until he was twenty-five years and six months old, when he moved away.

<p>Assumpsit for pauper supplies furnished one John IT. Webber.</p>

<p> Principal and agent. Deed.. </p> <p>A religions society, at a legal meeting thereof, voted to raise a specific sum of money by various methods, including a sale of pews, and appropriate the money toward its debt; to choose an agent to regulate the sale with directions that ten per cent, of the purchase money be paid down, and the balance in sums not less than ten per cent, annually; to adopt the form of deed reported by the committee, to be given purchasers; and that the pastor (naming him) “be appointed agent of the society to raise the above named sum, and that he have full power to make terms, contracts and agreements with purchasers of pews, and to transact all business legitimately belonging thereto.” Held, in an action on a note given for a pew sold by said agent, “ for and in behalf of” said society, that the agent had authority under the vote to execute the deed.</p>

On exceptions, and motion to set aside the verdict. Assumpsit. (Declaration.) In a plea of the case for that the said defendant at Augusta, to wit, at Limerick in the said county of York on or about the twelfth day of February, A. D. eighteen hundred and seventy-three, requested of the plaintiff to loan to one A. G-.

On report. Trespass against a deputy sheriff for taking the plaintiff’s horse. The deputy took the horse upon a replevin writ duly issued, with bond, against this plaintiff, in the name of one William W. Hall. After service the writ and bond were seasonably returned into the clerk’s office and there remained, but the action was never entered upon any docket of the court.

On report. Debt on bond given by the principal defendant as treasurer of the town of Wellington, the other defendants being sureties upon the bond. Bond was for five thousand dollars, usual form, and dated March 15, 1879. The writ was dated August 14, 1880. The plea was general issue, with brief statement of performance of all the conditions.

<p>On exceptions and report.</p> <p>Debt on replevin -bond. Writ dated August 27, 1879.</p> <p>The opinion states the case.</p>

<p>On report.</p> <p>Trespass in which damages are claimed for an alleged illegal arrest of the plaintiff by the defendant, at Bangor, in June, 1880. Writ was dated December 8, 1880.</p> <p>The opinion states the material facts.</p>

On report of facts agreed. The first of these actions is a writ of entry to recover about thirty acres of land on Merchants’ Island situated in Deer Island Thoroughfare. The second action is a bill in equity to restrain the plaintiff in the first action from prosecuting the same and to reform the the deed under which the defendant in that action claims title to-the locus. The material facts are fully stated in the opinion. The deed from Monteith to Childs conveyed nothing.

Report on motions. This was an appeal from a decree of the judge of probate approving and allowing the last will and testament of James Carvill. The-cause was submitted to a jury who returned the following verdict: “(1,) Was James Carvill, said testator, of sound mind at the time he executed the said instrument which purports to be his last will and testament? Answer. —No.” “(2,) Was said testator induced to make and execute said instrument by fraud or undue influence.

<p> Subscription to a fund for educational purposes. Interest. </p> <p>When the trastees of an institution incorporated for educational purposes are capable of receiving money and carrying out the design of a subscription wherein the subscribers promise to pay to the order of such trustees the sums set against their names in six years from date to make up a -building fund for said institution, such trustees are amenable to law in case of negligence or abuse of their trust; and when such subscription is accepted, and still more, when the trust is entered upon there is an implied promise for its faithful execution, and that is a sufficient consideration for the promise of each subscriber, to the fund.</p> <p>Interest when an incident to a debt, must stand or fall with it.</p>

On report from superior court. Assumpsit on a promissory note against- the firm of Churchill and Melcher. The case is fully stated in the opinion. cited: Kellogg v. Curtis,. 69 Maine, 212; Farrell v. Lovett, 68 Maine, 326; Story on Partnership, § 133; Waldo Bank v. Lumbert, 16 Maine, 416 Holmes v. Porter, 39 Maine, 160; Etheridge v. Binney, 9 Pick.. 274; Wait v. Thayer, 118 Mass. 473 ; Hat. Bank v. Savery, 127 Mass. 75.

On report. Assumpsit on the following note; §1000. March 26th, 1874. For value received I promise to pay Casper E. Marshall or order, one thousand dollars on demand with interest annually. Geo.

<p> Amendment. Costs. </p> <p>A writ which has not the name of any plaintiff is not amendable.</p> <p>When an action is dismissed on motion of the defendant because no plaintiff is named in the writ, no costs are allowed.</p>

<p>On exceptions.</p> <p>Assumpsit for labor in manufacturing slate and to enforce a lien on the same.</p> <p>The writ was dated March 21, 1878,' and entered at the September term, 1878.</p> <p>At the September term, 1881, the defendants filed the following demurrer:</p> <p>"And now the said Sutherland, Loring and Baker, come and defend the force and injury, when, &c. where, &c. and say that the said plaintiff as aforesaid ought not to have and maintain his action aforesaid thereof against them, because they say that the writ and declaration aforesaid and the matter therein contained are insufficient at law to have and maintain the action of the plaintiff against them, to which writ and declaration, they, the said Sutherland, Loring and Baker, have no necessity, nor are by the law of the land bound in any way to answer, and this they are ready to verify. Wherefore, for want of a sufficient writ and declaration in this behalf, they, the said Sutherland, Loring and Baker, pray judgment of the plaintiff’s writ, and that the plaintiff may be barred from having his action thereof against them, and that they may be allowed their costs.</p> <p>"By D. L. Savage, their attorney.”</p> <p>"And the said defendants, Sutherland, Loring and Baker, demur specially to the said plaintiff’s writ and declaration, because:</p> <p>"It is not alleged in said writ that a contract was made and entered into between the said plaintiff and the said defendants for the labor of the plaintiff for the defendants ;</p> <p>"It is not alleged in said writ that the plaintiff labored for the defendants at the request of the defendants ;</p> <p>"It is not alleged in said writ that the plaintiff labored for the defendants in consideration that the defendants would pay the said plaintiff for said labor;</p> <p>"It is not alleged in said writ that the plaintiff labored for the defendants at their request, and in consideration thereof, defendants became liable and promised plaintiff to pay him for said labor;</p> <p>"No promise is alleged in plaintiff’s writ in consideration of labor performed by plaintiff for defendants;</p> <p>"It is not alleged in said writ that the action was commenced within thirty days after labor performed on the slate commanded to be attached in said writ, the action being to’enforce a lien on the slate on which plaintiff claims to have labored;</p> <p>"It is alleged in plaintiff’s writ that the defendants are copartners in quarrying slate, and plaintiff claims to have labored in quarrying, mining and manufacturing slate for defendants;</p> <p>"It is alleged in said writ that Sutherland, Loring and Baker, are copartners in quarrying slate under the name of Oakland Slate Quarry Company, and the account annexed to the writ sets out the work of plaintiff to have been done for Oakland Slate Company, instead of Oakland Slate Quarry Company;</p> <p>"The said writ is not sealed;</p> <p>" On inspection of said writ, no seal can be seen and read;</p> <p>" The seal of this court is not on said writ so that on inspection it can be legally ascertained that it is the seal of this court.</p> <p>"By I). L. Savage, their attorney.”</p> <p>The demurrer was overruled, and the defendants alleged exceptions.</p> <p>The defects and omissions in the writ, as found by the court, are stated in the opinion.</p> <p>In the commencement of actions each party should be designated by his name at full length with the name of the town and county in which he resides. 2 Stra. 889; 10 East. 83. The officer’s return shows no service on these defendants, their residence is not named in the writ and the writ is not "in a plea of” anything, hence the court has no jurisdiction, as neither the person nor case can be understood.</p> <p>The words "in a plea of — ” are given in the form of writs prescribed by the statute. They form a matter of substance and when not inserted the defect is fatal and will abate the writ. Story’s PI. 24, and cases there cited; 5 Dane’s Abr. c. 176, art. 9, § § 3, 4.</p> <p>Either party may demur at any stage of the proceedings. B. S., c. 82, § 19.</p>

On deport. Debt on a bond, given by Laura J. Lyford, as guardian of Charles F. Lyford, upon receiving license to sell certain real estate, signed by the defendant as surety. Plea, general issue, with brief statement alleging that Laura J. Lyford was never the legal guardian of Charles F. Lyford, that her license to sell real estate was entirely void, and that the bond in suit is therefore wholly void. The opinion states the material facts.

On exceptions from superior court. Assumpsit on a promissory note for fifty dollars, dated March 3, 1874, payable to J. G. Durgin or order six months afterdate. The case was tried by the presiding justice without the intervention of a jury, subject to exceptions in matters of law.

On demurrer to a bill in equity. The bill alleges that the complainant was married to the defendant Robinson, at Fitchburg, Massachusetts, September 25, 1877 ; that prior to the marriage andón the same day the defendant Robinson, for a valuable consideration made, sealed, executed, acknowledged and delivered to her a Avarranty deed of certain premises in Portland; that she accepted the deed and has never parted with her right, title or interest, in any portion of the…

<p> Taxes. Bond of collector. Sureties. Damages for breach. </p> <p>One of -the duties of a collector of taxes is to pay the treasurer all the money received upon the taxes committed, though received, under a defective warrant. A neglect to do so is a breach of his bond, conditioned to secure a faithful performance of his duties as collector of taxes; and the sureties in the bond, having entered into the same covenant as the principal, are equally liable for a breach of it. *</p> <p>In a suit against the sureties in a collector’s bond for money actually received as taxes by the collector under a defective warrant, and not paid over, the measure of damages is the amount actually collected as taxes and interest, and interest on the same from date of demand, deducting all payments made by the collector to the treasurer (not including orders and receipts for discounts or abatements) and any amount collected on a warrant of distress, and paid over, also- deducting such compensation as the collector is entitled! to receive for his services for the collections actually made and paid over by him.</p>

<p>On report.</p> <p>The opinion states the case.</p> <p>cited : McLeery v. McLeery, 65 .Maine, 177 ; Knight v. Mains, 12 Maine, 41; Bandall v. Farnham, 36 Maine, 86 ; Cults v. York Mf’g Co. 18 Maine, 190; Batchelder v. Robinson, 6 N. H. 12; Converse y. Cook, 8 Vt. 164; 2 Hilliard Mortgages, 282, 283, 318 et seq.-, Chase v. McLellan, 49 .Maine, 375; Hatch v. Palmer, 58 Maine, 271; Freeman v. Paul, 3 Maine, 260; Bolton v. Ballard, dS Mass. 227; Carllv. Butman, 7 Maine, 102; Hatch v. Kimball, 16 Maine, 146; Pillsbury v. Smyth, 25 Maine, 427: Forster v. Mellen, 10 Mass. 421; Freeman y. Me Caw, 15 Pick. 83; Grover v. Flye, 5 Allen, 543 ; Jewett v. Whitney, 43 Maine, 242.</p> <p>The plaintiff is not entitled to dower because her husband was not seized of the premises during the marriage. The attachment and levy were before the marriage, the time of redemption expired and the title became absolute in the bank; the bank conveyed the premises — an absolute title to Blake; it -was not a release of the levy, but a sale and conveyance of the premises. Brown v, Williams, 31 Maine, 403 ; Mann v. Fdson, 39 Maine, 25 ; Hamlin v. Hamlin, 19 Maine, 141.</p> <p>The defendant does not claim under Gideon Mayo and is not estopped to deny his seizin of the premises by Mayo’s warranty deed to Blake. Foster v. JDwinel, 49 Maine, 44; Hamlin v. Hamlin, 19 Maine, 146.</p> <p>The title of the Orono bank by the levy becoming absolute, Blake’s title came from the bank, not from Mayo. Mayo’s warranty deed conveyed nothing of the premises to him.</p> <p>The advértisment, and conversations of Hamlin with Wilson are inadmissible as evidence and cannot affect the title. The advertisment was no act of Hamlin, the conversations were before the sale to him, were res inter alios. Hamlin v. Hamlin, 19 Maine, 145.</p> <p>Mayo did not intend that there should be a release of the Orono Bank’s title by levy, he procured the conveyance to be made to Blake. His acts throughout show that he did not intend to have the legal title — the legal seizen in himself; there was no merger of the titles in him or in Blake, Simonton v. Gray, 34 Maine, 50.</p>

On exceptions from superior court. Assumpsit for damages for alleged breach of contract. At the trial the plaintiff offered in evidence the following paper, which was objected ‘to by the defendant as insufficient, under the statute of frauds, because it shows no consideration, and is indefinite as to the amount to be delivered; but it was admitted by the court : Augusta, June 8, 1880.

Beplevin for a wagon. The wagon was sold by the warden of the state prison to defendant, who gave to the warden a mortgage of the wagon to secure notes given as a consideration for the sale. The warden sold and delivered the notes and mortgage to the plaintiff, indorsing the notes, but not indorsing or assigning the mortgage by any writing. The wagon itself was never delivered to the plaintiff, and was never in his possession.

<p>On report.</p> <p>Action for breach of covenant contained in a lease whereby the lessees agreed to purchase.</p> <p>(Lease.)</p> <p>"This indenture, made the ninth day of May, in the year of our Lord one thousand eight hundred and seventy-seven.</p> <p>"Witnesseth, that I, Rebecca N. Bragg, of Boston, in the county of Suffolk, and Commonwealth of Massachusetts, widow, and mortgagee under a mortgage of the premises hereafter described, given by Joseph C. White of Bangor, Maine,- do hereby lease, demise and let unto William B. Dole, and James Albert Dole, both of Bangor, Penobscot county, Maine, the premises on the easterly side of Ohio street, in said Bangor, which were formerly occupied by the late Carlton S. Bragg, as a homestead, and more recently by Joseph C. White, as a homestead.</p> <p>"To hold for the term of three years from said' May 9, A. D. 1877, subject only to the legal right of redemption from said mortgage by any one having the right to redeem, the said Doles yielding and paying therefor the rent of four hundred dollars per annum so long as said term shall last, or until the premises shall be so redeemed, and the said lessees do covenant to pay the said rent in monthly payments, in advance, and at the expiration of said term or so soon as the said lessor shall acquire an absolute title to said premises and be able to convey the same, to buy the same and to pay therefor the sum of five thousand dollars, in cash, in which case the rent above stated shall cease at time of purchase, and to quit and deliver up the premises to the lessor or her attorney, peaceably and quietly at the end of the term aforesaid, except in case of purchase as aforesaid, in as good order and condition (reasonable use and wearing thereof, inevitable accident excepted,) as the same are or may be put into, by the lessor and to make all repairs upon the premises which may be necessary to keep them in a good, tenantable condition, and to protect them from decay, and not to make or suffer any waste thereof, and that they will not assign or underlet the premises or any part thereof, without the consent of the lessor in writing, upon the back of this lease. And the lessor may enter at any and all times to view, and make improvements, and suitable repairs. And if the said monthly payments herein, named, dr either of them, whether the same be demanded or not, are not paid when they become due, or if said leased premises shall be appropriated to any other purpose or use than as a dwelling house, or if any waste or strip shall be made therein, or if any part of said demised premises are underlet without the consent of the lessor as above named, or if any condition or covenant of this lease to be by said lessees performed, shall be violated or neglected, then and in either of said cases the said lessor, her agent, attorney, heirs or assigns, may in any manner she or they may see fit, re-enter into the leased premises, and if he please terminate and annul this lease, so far as regards all future rights of said lessees, and the samé to have again, retain, repossess and enjoy, as in his or their first estate, anything herein to the contrary notwithstanding.</p> <p>"All glass broken in said premises during this lease, to be replaced by said lessees, said glass now being whole. All taxes upon the premises to be paid by lessor until lessees shall purchase as they above agree, and lessor agrees that so soon as she shall acquire, absolute title to the premises and be able to convey them, she will sell and convey the same by a good and sufficient warranty deed to lessees for the sum of five thousand- dollars, cash, to keep the premises insured against fire, and in case of loss and subsequent purchase by lessees to account to them for proceeds of insurance received by her.</p> <p>"And the premises shall not be occupied, during said term, for any purpose usually denominated extra hazardous, as to fire, by insurance companies. In case of the refusal of either party to carry - out the agreement to buy and sell the premises, the party so refusing shall pay the other one thousand dollars, which is hereby agreed upon as liquidated damages. In witness whereof, the parties have hereunto interchangeably set their hands and seals, the day and year first above written.”</p> <p>Rebecca N. Bragg,</p> <p>William B. Dole,</p> <p>James Albert Dole.”</p> <p>"Signed, sealed and delivered in presence of F. A. Wilson.”</p> <p>At the time of the execution of the lease, plaintiff’s mortgagor was in bankruptcy.</p> <p>Plaintiff had brought a suit to foreclose her mortgage, in which a conditional judgment had been rendered March 5,1877. The amount then ascertained as due or to become due under her mortgage being upwards of six thousand dollars. The writ of possession based upon said judgment, did not issue until May 22, 1877, and possession of the premises was delivered to plaintiff on the fourth day of June, 1877, plaintiff’s title thtfs becoming absolute June 4, 1880. No payment had been made to plaintiff on her mortgage debt between the date of the judgment and said June 4, 1880.</p> <p>On the fourth day of June, 1880, the plaintiff made, executed, and tendered, to the defendant a .warranty deed, as an offer of performance on her part of their agreement to sell contained in the lease, and • demanded of defendants a performance of their agreement to purchase ¡contained in the lease. Defendants refused to accept the deed, claiming that they were not then bound to do so, the term of three years from the date of the lease having expired.</p> <p>By the terms of the report, if the defendants were liable in this action for a breach of their covenant and agreement to purchase, a default was to be entered for one thousand dollars and interest from the date of the writ, otherwise a nonsuit was to be entered.</p> <p>The plaintiff claims that the defendants were bound to purchase the premises leased as soon as the plaintiff acquired an absolute title thereto, and was able to convey, whether that was before, at, or subsequent to the expiration of the term of the lease.</p> <p>The agreement so - to do was unambiguous, reasonable and complete, and "there can be no reason for refusing to admit the ■meaning which the words naturally import.” Millett v. Marston, 62 Maine, 477.</p> <p>Nothing appears in the instrument to show how plaintiff was to acquire absolute title. She was not restricted in this. She could acquire it in any way, and when she acquired it, then was the time when she was bound to sell and the defendants to buy. That was evidently the intent of the parties as indicated by examination of the whole context. 1 Chit. Contr. (11 Am. ed.) 117; Chase v.' Bradley, 26 Maine, 531; McLellan v. Cumberland Bank, 24 Maine, 566.</p>

On report. Replevin of a quantity of slate mantels. Plea, was non cepit, with a brief statement, alleging: that the . mantels were not the property of the plaintiff, but were held by the defendant as sheriff of the county, by virtue of four attachments made by him as the property of the Mayfield Slate Company, on four writs against that company, in favor of Peter Cunningham, Michael B. Mahar, Peter Martin and Charles S. Eobbins, respectively, brought to enforce statute liens…

On exceptions and motion. Assumpsit against the owners, of the bark, Emma L. Partridge, ■on account annexed for ship stores, etc. amounting to $2708.11. Plea, general issue, with brief statement setting up an agreement on the part of plaintiffs to keep the vessel (which had been lost) insured to the amount of the bill. Verdict for plaintiff, $1908.86.

On report. Beal action. Plea, the general issue. The facts are stated in the opinion. cited: Parsons v. Shorey, 48, N. H. 550; Dearborn v. Twist, 6 N. H. 44; Past-man v. Morrison, 46 N. H. 136; Lyford v. Bryant, 38 N. H. 88 ; In re Marson, 70 Maine, 513; Means v. Osgood, 7 Maine, 146; Berry v. Spear, 13 Maine, 187; Fairfield v. Paine, 23 Maine, 498 ; Drew v. Alfred Bank, 55 Maine, 450; Farrin v. Bowse, 52 Maine, 409; B. S., c. 81, § 56; Maine Civ. Off. (4th ed.) 103, 104.

<p> Practice. Probate cases. </p> <p>Tlie law court may properly consider and determine motions to set aside as against law and evidence verdicts of juries rendered in probate cases upon issues framed at nisi prius, wben reported by tbe presiding justice with, all the evidence adduced at the trial.*</p>

<p> Deed. Title by disseisin. </p> <p>Prior to the enactment of R. S., 1841, c. 91, §1, the deed of one who was disseized could not, during the continuance of the disseizin, convey a title - to his grantee.</p> <p>Where a grant of land is made with fixed and definite metes and bounds capable of being ascertained on the face of the earth, it cannot be enlarged so as to include adjoining land by the mere addition of the words “together with the buildings thereon standing,” although such adjoining land is covered by corners of the buildings referred to.</p> <p>The seizin acquired by a first disseizor will not enure to the benefit of other disseizors who come after him unless there is a privity of estate between them and him either by purchase or descent.</p>

On exceptions. Action for pauper supplies furnished to the wife of Eobert Childs. The verdict was for the plaintiffs.

On exceptions, and motion to set aside the verdict. An action on the case under the provisions of E. S., c. 113, § 51, against the defendant for aiding in the fraudulent transfer and concealment of certain real estate of Jabez Waterman, the father of the defendant, and a debtor of the plaintiff.

On exceptions. Review of an action of trover which was once reported in 70 Maine, 250. The opinion states the case. cited : Dunlap v. Burnham, 38 Maine; 112; Grehore v. Pike, 47 Maine, 435; Curtis v. Curtis, 47 Maine, 525 ; Dyer v. Wilbur, 48 Maine, 287. cited : same case, • 70 Maine, 250; Dyer v. Wilbur, 48 Maine, 287; Jay v. Carthage, 48 Maine, 353; Tibbetts v. Shaw, 19 Maine, 204; R. S., c. 89, § 12; c. 82, § 104.

On agreed statement of facts from superior court. Trover to recover the value of certain personal property, brought by the mortgagee of the same, against an attaching officer. Plea, general issue, with a brief statement. The opinion states the material facts. The following are the entries made by the city clerk at the time of receiving the mortgage for record; upon the back of the mortgage in the following words and figures : -ss.

On report. Trover for a horse sold and delivered to the defendants by the plaintiffs, who were minors and claimed they had rescinded the contract of sale and tendered the consideration received. At the trial after the evidence ivas out, the court ruled that the action could not be maintained and ordered a nonsuit; and by agreement of parties the case was reported to the full court.

On exceptions from municipal court of Lewiston, certified to 'the law court, in accordance with the provisions of § 10 of the act establishing the municipal court of Lewiston. Assumpsit on an account annexed for necessaries. The exceptions were to the ruling of the municipal judge discharging the trustee upon the following disclosure : On the twelfth day of April, 1881, I was station agent of Maine Central Railroad at Lisbon, Maine.

On report. Bill in equity, heard on facts stated in the bill, the respondents reserving the question of jurisdiction. ‘ (Bill-) State of Maine, Cumberland, ss. In Insolvency. In the matter of Williams and Norton, insolvents.

On exceptions from superior court. Debt on a poor debtor’s bond. The questions presented by the exceptions and the facts bearing upon them are stated in the opinion. There is nothing showing the appearance of the creditor, and the documents put in evidence by the defendants show no legal notice of the disclosure. E. 8., c. 113, § 52; Williams v. Burrill, 23 Maine, 144; Call v. Mitchell, 39 Maine, 465 ; Mace v. Woodward, 38 Maine, 426.

On exceptions. Assumpsit on an account annexed for wages as seaman, together with two months’ extra pay for discharge in Liverpool. The opinion states the material facts. cited *. Emerson v. Howland,, 1 Mason, 45; The Saratoga, 2 Gallison, 181; Ogden v. Orr, 12 Johns. 143; Abbott, Shipping, 620; Orne v. Townsend, 4 Mason, 549; The Juniata, Gilpin, 193; The Dawn, 1 Ware, 499.

On report of facts agreed, upon an appeal from trial justice to superior court. The opinion states the material facts. At the time of the seizure the claimant had no right to the .liquor. K. S., c. 27, § 37. The contract of sale must be regarded as made in Massachusetts, as it was by letter from Winthrop to Boston. Milliken v. Pratt, 125 Mass. 374; McIntyre v. Parks, 3 Met. 207; Orcutt v. Kelson, 1 Gray, 536 ; Kline v. Baker, 99 Mass. 253 ; Jordan v. Dobbins, 122 Mass. 168.

<p>Assault and battery, Jurisdiction. Police court, Rockland. R. S., c. 118, § 28. The Supreme Judicial Court has original jurisdiction by indictment of the offense of assault and battery. This jurisdiction is concurrent with the jurisdiction of municipal and police courts and trial justices when the offense is not of a high and aggravated character.</p> <p>The act establishing the police court of Rockland, confers upon it “ exclusive jurisdiction over all such criminal offenses committed within the limits of said city as are cognizable by justices of the peace or trial justicesHeld, that this means exclusive, not as against all courts, but only as against courts of the same grade, as against justices of the peace and trial justices.</p>

<p>On report.</p> <p>Debt on a poor debtor’s bond given by Biley Lyford, the principal defendant, to procure his release from arrest for the taxes-of 1876, in the town of St. Albans. The bond run to the assessors who signed the tax warrant, and not to the assessors who were in office when the arrest was made.</p> <p>The question submitted to the court was, whether the bond was void or valid.</p> <p>cited: Bates v. Butler, 46 Maine, 393 ; Hoxie v. Weston, 19 Maine, 322 ; Athens v. Ware, 39 Maine, 345 ; Kavanagh v. Saunders, 8 Maine, 422; Burroughs v. Lowder, 8 Mass. 3'81; Randall v. Bowden, 48 Maine, 37; Smith v. Brown, 61 Maine, 70; Clapp v. Cofran, 7 Mass. 101.</p> <p>contended in an able argument, that the bond was void. The points of the argument are stated in the opinion. Counsel cited: Stat. 1878, c. 79 ; Purple v. Purple, 5 Piet. 226, and contended that the cases of Hoxie v. Weston, 19 Maine, 322; Athens v. Ware, 39 Maine, 345; and Pindar v. Upton, 44 N. H. 358, cannot be regarded as authority to sustain the validity of the bond in suit.</p>

On motion to set aside the verdict. Assumpsit on the following note : Dead River, Maine, Oct. 1, 1874. One year after date, I promise to pay to the order of C. B. Mahan, agent, four hundred thirty-three 75-100 dollars, at First National Bank, Skowhegan, Maine. Samuel A. Parsons.” (Indorsed) C. B. Mahan, Agent Granite Agricultural Works, Lebanon, N.-H.” Verdict was for the defendant.

On agreed statement of facts from superior court. Action of covenant broken. The opinion states the material facts. There is no breach of covenant of warranty until eviction. Reed v. Pierce, 36 Maine, 455; Twambly v. Henley, 4 Mass. 442; Bearce v. Jackson, Id. 408; Ghapel v. Bidl, 17 Mass. 213 ; Gilman v. Haven, 11 Cush. 330.

<p>On report.</p> <p>Assumpsit upon a promissory note of two thousand dollars. The question presented by the report was the liability of' George G. Pierce and A. B. Mathews as trustees.</p> <p>In May, 1874, and long before, the defendants were partners under the firm name of Hersey and Woodward. In 1873, one of the defendants, Woodward, gave Pierce a note for five hundred dollars, signed by Woodward as principal and the other defendant, Hersey, as surety. Pierce left the note at the Belfast Savings Bank on his departure for Chicago. May 1,1874, without the authority, knowledge or consent of Hersey, Woodward drew two drafts in the name of the firm, one for three hundred dollars on D. M. Hodgden and Company, of Boston, and the other for two hundred and thirty-five dollars on Leland, Bice and Company, of' Boston, and paid and delivered the same to the treasurer of the Savings Bank to pay the Pierce note. The drafts were upon funds of the firm and were accepted and paid and the treasurer of the Savings Bank sent to Pierce the five hundred and thirty-five dollars by draft on Howard National Bank, Boston.</p> <p>In the case of Mathews, the report shows that he sold Woodward some furniture and that Woodward paid him on account one hundred' dollars by the draft of Hersey and Woodward on D. M. Hodgdenand Company, without the authority, knowledge or consent of Hersey. Mathews testified that at the time he received the draft, he did not know anything about the financial condition of Hersey and Woodward, that he had no reason to believe the firm insolvent, and that 'he did not know whether or not Woodward paid the firm for the draft.</p> <p>cited : Blodgett v. Sleeper, 67 Maine, 499; Johnson v. Hersey, 70 Maine, 74; Ex parte Weston, 12 Met. 1; Ex parte First National Bank, 70 Maine, 373.</p> <p>The drafts in this case were discounted by the bank and became the property of the bank, the proceeds were the property of Hersey and Woodward and by direction of Woodward were applied to the payment of the Pierce note, and the mis-appropri■ation was by the bank and not by Pierce who could have no knowledge from whose funds or how his note was paid.</p>

On report. Assumpsit for money had and received. The defendant was administrator on the estate of Henry S. Hagar, who, in his lifetime, had commenced an action for freight money of certain vessels, one being the brig Yazoo of which the-plaintiff was part owner. Hagar assigned the claims under this action as collateral security for a debt of fifteen thousand dollars, upon which his mother, Sarah Hagar, was holden as surety..

On report of facts agreed. Trespass qu. cl. and removing from the premises, which were then in plaintiff’s possession as mortgagee, a frame building erected thereon by. the husband of the mortgagor with her consent after the execution of the mortgage.

On exceptions. Assumpsit for money had and received. The opinion states the case and the material facts. cited, on defendant’s exceptions: R. S., c. 55, § 5; Schunck v. Gegenseitiger, On plaintiff’s exceptions : Stephen’s Dig. Ev. art. 91, par. 8; 1 Greenl. Ev. § § 290, 287; Gotton v. Smithwick, 66 Maine, 365 ; Tucker v. Seaman’s Aid Soc. 7 Met. 188; Whart.

On report. Assumpsit for pauper supplies furnished Charles H. Mann and wife. Charles EL Mann had never gained a settlement for himself, but had the derivative settlement of his father, Perry Mann. The opinion states the material facts. cited: Eddington v. Brewer, 41 Maine, 462; Frankfort v. Winterport, 51 Maine, 445; Private Laws, 1853, c. 134; and 1860, c. 422.

On exceptions. Replevin. The plaintiff and his attorney were the only witnesses called in the case. Verdict was for plaintiff. The opinion states the case presented by the defendant’s exceptions. There was no argument for the defendant before the law court.

On exceptions. Appeal from county commissioners. The opinion states the case and the material facts.

Report on agreed statement of facts. Debt on a judgment recovered at the October term, 1873, of this court in Penobscot county, for four hundred and ninety-five dollars and forty-eight cents debt, and sixteen dollars and eight cents costs of suit.

<p>On exceptions and motion to set aside the verdict.</p> <p>Assumpsit for money had and received from the pension money of the plaintiff.</p> <p>The opinion states the case and the material facts.</p> <p>cited : 7 Green. 134: 10 Allen, 76 ; 11 Cush. 57 ; 11 Mass. 376 ; 61 Maine, 376 ; 4 Mass. 491; Taylor v. Jaques, 106 Mass. 291; ü. S. R. S., § § 4445, 5484, 5485, 4785 ; 2 Pars. Contr. 254, (4th ed.) ; Concord v. Delaney, 58 Maine, 316; Worcester v. Eaton, 11 Mass. 376; Bliss v. Thompson, 4 Mass. 491; White v. Franklin Bank, 22 Pick. 181; Jones v. Barkley, 2 Dough 684; Dicey on Parties, 277 ; Elliott v. Swartwout, 10 Peters, 158; Ripley v. Geltson, 9 Jola. 201; Frye v. Lockwood, 4 Cowan, 456; Snowdon v. Davis, 1 Taunt. 357 ; Hearsey v. Pruyn, 7 John. 182; Fowler v. Shearer, 7 .Mass. 14; Call v. Houdlette, 70 Maine, 313; Townsend v. Wilson, 1 Camp. 396; Story, Agency, § 300; Wharton, Agency, § 520.</p> <p>The contract made by the defendant in behalf of the town of Levant, with the plaintiff, was that he would aid her in obtaining her pension, if she would pay over to the town the amount which she might receive as. arrears of pension, on account of what she was indebted to the town. This she did less fifty dollars, and the amount the town thus received was loss than half what the town expended on account of the plaintiff. This was not a payment of an excessive amount, or any amount, to Mr. White, as fees for obtaining a pension. He was not paid anything for his services, not even the ten dollars allowed by statute. He was not to be paid anything for his services by the plaintiff. She was not to pay anybody anything for White’s services, and she did not. She simply agreed to pay something towards her indebtedness to the town, and that -is all she did.</p> <p>This agreement didn’t profess to be a mortgage, pledge, assignment or transfer of her pension. It was an agreement not prohibited by statute or good morals, and having carried out the agreement in part, she cannot now repudiate.- Bigelow on Estoppel, 51, 515.</p> <p>As a matter of fact, the original agreement* was repudiated by the plaintiff, and what money she paid over to Mr. White for the town, she did voluntarily after the receipt of her pension, when she had a right to appropriate it as she pleased, and did appropriate a little over a hundred dollars (all but fifty dollars) in part payment of a debt she owed the town.</p> <p>Counsel contended that this could not be called payment under duress, citing : Cooley on Torts, 506 ; Fellows v. Fayette, 39 Maine, 561; Harmon v. Harmon, 61 Maine, 229 ; IPars. Contr. 321; Seymour v. Prescott, 69 Maine, 376.</p> <p>On the question of new trial, counsel cited: Hilliard, New Trials, (2ded.) 459; Hunnewell v. Hobart, 40 Maine, 28 ; Pollard v. G. T. My. Go. 62 Maine, 93.</p> <p>The presiding justice instructed the jury: "I now come to the time when the check was received. The pensioner had the check, it was her property. She indorsed it to the defendant White. What does White say ? He swore in clear and explicit terms that he claimed the money by virtue of and under the bargain of April, 1879, under that contract, that he got the check by virtue of that contract. If he got that check and the money on the check by virtue of that contract as he swears he did, he had no business with if, and the plaintiff has the right to recover.”</p> <p>This was an error in fact and in law. Morris v. Platt, 32 Conn. 75; Hill v. Canfield, 56 Penn. St. 454; Care v. Williams, 2 Cald. 239; Chajojpell v. Allen,- 38 Mis. 213 ; PRliott v. Swartwout, 10 Peters, 137 ; Moioatt v. MeClelan, 1 Wend. 176.</p>

<p>On exceptions.</p> <p>This case was once before presented to the law court and reported. 71 Maine.</p> <p>Assumpsit for the value of two United States government bonds of five hundred dollars each, alleged to have been loaned by the plaintiff’s intestate to the defendant’s intestate, October 29, 1875.</p> <p>The opinion states the questions and material facts presented by the exceptions.</p> <p>cited: State v. Patterson, 68 Maine, 473; Todd v. Whitney, 27 Maine, 480; Homans v. Lombard, 21 Maine, 308; 1 Whart. Ev. 161; Roberts v. Spencer, 123 Mass. 397 ; Sedg. Cons, of Stat. Law, 87 ; II. and Q. B. and T. Gor. v. Horfolh, 6 Allen, 356; Ayer v. Spring, 10 Mass. 83 ; Chit. PI. (8th ed.) 549 ; 3 Saunders PI. and Ev. 241; Howe’s Pract. 241; M. and S. Fund v. Rowell, 49 Maine, 330; Gunnison v. Lane, 45 Maine, 165 ; Walker v. Sanborn, 46 Maine, 470.</p> <p>The testimony of John B. Stetson, an interested witness, was. improperly admitted. E. S., c. 82, § 87; Stat. 1875, c. 83; Jones v. Simpson, 59 Maine, 180; Hunter v. Lowell, 64 Maine, 572.</p> <p>Evidence of the general agency of Montgomery for the defendant was inadmissible and irrelevant, and it tended to affect and control the verdict. That was the reason why it was introduced, and it seriously affected the rights of the defendant. Warren y. Walker, 23 Maine, 460; Mussey v. Mussey, 68 Maine, 348; Ellis v. Short, 21 Pick. 142; Farnum v. Earnum, 13 Gray, 508 ; Brown v. Cummings, 7 Allen, 507 ; Ellingwood v. Bragg, 52 N. H. 488 ; Oxnard v. Swanton, 39 Maine, 125.</p> <p>When a new trial is granted in a cause for aiiy reason, the plaintiff begins de novo. The parties are in no way affected by the fact that there has been a previous trial. All the steps of a trial must be taken. If either party wants to show the contents of papers in the possession of the other notice required by the rules must be given. Holley v. Young, 68 Maine, 215.</p> <p>There was no waiver of notice by the defendant, and the evidence to prove it was incompetent, and the instruction of the presiding justice upon this point was erroneous. Linseott y. Trash, 35 Maine, 150; 1 Greenl. Ev. § 2 ; Johnson v. Knowlton, 35 Maine, 467; Sawyer y. E. 8. Co. 46 Maine, 400; Co. Lit. 352; Heane v. Rogers, 9 B. and C. 557 ; Dezell v. Odell, 3 Hill’s 224; Lawrence v. Brown, 1 Selden, 401.</p> <p>The construction of the paper given by Knight to Stetson, October 29, 1875, was for the court. Wilson v. Hanson, 12 Maine, 58; Miller v. Lancaster, 4 Maine, 159; Sylvester v. Staples, 44 Maine, 496; Cocheco Bank v. Berry, 52 Maine, 298; 1 Greenl. Ev. § § 4, 277.</p> <p>Counsel further elaborately argued this branch of the case.</p>

On report of facts agreed. Assumpsit for money had and received, brought under the provisions of E. S., c. 66, § § 13, 14, against the executors on an appeal by them from the decree of the probate court, Cumberland county, accepting the report of commissioners of insolvency on the estate of said Smith, allowing the plaintiff the sum of twenty-four thousand nine hundred and sixty-five dollars and seventy-nine cents. The material facts are fully stated in the opinion.

On report. Law court to render such judgment as the rights of the parties require. Petition for partition. The opinion states the case and material facts. i The contracts were made with the owner before the mortgage was made, and fully performed before these petitioners knew of the mortgage. The lien continues. 126 Mass. 274; 103 Mass. 227, 470; 117 Mass. 179 ; 52 Maine, 293.

<p>On report.</p> <p>Appeal from the doings of the authorities of the city of Bangor, in laying out so much of York street as is westerly of Exchange street in Bangor, where one dollar was allowed as land damages.</p> <p>The appeal to the Supreme Judicial Court only relates to damages. By the terms of the report if the appeal can be sustained the cause is to stand for trial.</p> <p>The city claims that there was a dedication of the locus, or part of it, by the original proprietors, and that according to the principles laid down in Stetson v. Bangor, 60 Maine, 313, and in Bartlett v. Bangor, 67 Maine, 460, appellants are not entitled to damages. Our answer to that is that the case at bar differs from those cases in that the appellants in this case had made valuable erections upon the premises — a wharf and buildings, and had maintained them, having an adverse, uninterrupted, open and exclusive possession by themselves and their tenants from 1845 or 1846, to the time of the laying out, a period of some twenty-seven years.</p> <p>We think that the weight of the authorities sustains the position that the claim of a city in a street or land dedicated for a street, may be barred by a non-user and by adverse possession. 3 Kent’s. Com. 451, note; 2 Dillon on Municipal Corporations, § 668;. Cincinnati v. Brans, 5 Ohio, 594.</p> <p>In Bartlett v. Bangor, page 466 of 67 Maine, Judge Walton says : "And such right of way is not lost by mere non-use. An adverse use, such as placing upon the land buildings or other permanent obstructions to all possible travel over it if acquiesced in for a sufficient length of time might have that effect.”</p> <p>I refer also to Knight v. Heaton, 22 Vermont, 480 ; Webber v. Chapman, 42 N. H. 332.</p> <p>Another and different question arises as to part of the land taken by the location of the street, namely, the strip six and one-half feet in width, extending from Exchange street to the stream. This strip is outside of the street opening as laid down on the original plan and the appellants are entitled to damages for this parcel unless barred by the bond given by them in 1845.</p> <p>It will be noticed that this bond provides as follows : "And it is agreed that neither this obligation nor said city order shall be used in evidence in any action now pending or which may be hereafter pending to try the question of public way, highway or town way or any other easement over that part of York street west of Exchange street.”</p> <p>This case is to be decided upon such testimony as is legally admissible.</p> <p>This bond is not legally admissible and cannot therefore be used or considered in the case, and cannot bar appellants’ right to recover damages for the six and a half feet. Copeland v. Taylor, 99 Mass. 615 ; 1 Greenleaf on Evi. § 192.</p> <p>cited:. Stetson 'V. Bangor, 60 Maine, 313 ; Bartlett v. Bangor, 67 Maine, 460 ; Commonwealth v. Blaisdell, 107 Mass. 234; 2 Dill. Mun. Corp. (2d ed.) § § 512, 530, 513; St. Vincent Orphan Asylum v. Troy, 32 Am. E. 286, (S. C. 76 N. Y. 108) ; Washburn on Easements, 556 ; Farrar v. Cooper, 34 Maine, 394; Davis v. Bangor, 42 Maine, 522; Abbott v. Abbott, 51 Maine, 575 ; Simmons v. Cornell, 1 E. I. 519.</p>

On report of the presiding justice. An appeal from the allowance of Harriet R. Preble’s alleged private account, she being the administratrix of her late husband, Benjamin Preble; the appellant, herself an heir, appearing for his heirs. The estate had been represented insolvent and commissioners appointed.

On REPORT. Bill in equity to redeem mortgaged premises. The case went to a master to state the account and was reported from the March term, 1881, upon the following stipulation : The master’s report in this case was made at this term. It presents certain findings and an alternative report. The complainant filed exceptions to the master’s report in certain particulars.

On demurrer to a bill in equity. Bill in equity by William H. Fessenden delegated and authorized by said company to act for it in closing up its affairs.” The following are the averments of the bill… Held: voted that the said Charles Sawyer be instructed and authorized to pay all bills outstanding against said company, approved and passed by the directors of said company.

<p> Statute of limitations, avoidance of. </p> <p>To sustain an averment in a writ, commenced against an administrator more than two years after notice of his appointment, that the cause of action had been fraudulently concealed from the plaintiff by the defendant, the plaintiff testified that the defendant promised before he was appointed administrator that he would see to the plaintiff’s-account against the estate and this the defendant had neglected to do. JSeld, that here was not evidence from which a jury could find a fraudulent concealment of the cause of action. The plaintiff’s cause of action, if he had one, could not be thereby concealed.</p>

On report. The opinion states the case. The declaration shows that the trial justice before whom the proceedings were had, which occasioned the damages complained of, had no jurisdiction, and his acts and doings were wholly null and void. Buffum v. Ramsdell, 55 Maine, 252 ; SidensparTeer v. Sidensparlcer, 52 Maine, 481; Gilbert v. Duncan, 65 Maine, 469.

On report. Writ of entry to recover possession of certain real estate in Bath. Writ dated July 28, 1880. Plea, mil disseizin. The title of plaintiff’s grantor to the premises rested upon the following deed.

On report from superior court. Debt on bond. Writ dated April 2, 1878. March 12, 1874, the defendant Robinson replevied of the plaintiff a yoke of steers, alleging their value to be fifty-five dollars, and with the other defendants, Abram. W. Heath and A. K. Swift, as sureties, gave the bond for one hundred and ten dollars, now in suit.

<p> Contracts. Surety. TJ. S. Mail. </p> <p>The plaintiffs entered into an agreement with 3?, for whom the defendant was surety, to carry the mail from A to 33, and bach, according to the provisions of a contract between said Rand the United States, to carry the mail between said points, and save said 3? harmless therefrom. By arrangement between the plaintiffs, communicated to 3? who made no objections, the route between A and B was divided between them — two of the plaintiffs agreeing to carry the mail a part of the distance, and two the residue of the route. Held:</p> <p>1. That the surety was not thereby discharged.</p> <p>2. That the contract having been performed, and the price agreed having been paid to IT, that upon his decease an action was maintainable against the surety for the amount unpaid.</p>

On exceptions and report. Assumpsit on the following note : — Embden, Maine, October 1, 1874. One year after date, I promise to pay to the order of C. B. Mahan, agent, four hundred twenty-two dollars, at the first National Bank, Skowhegan, Maine. Value received.

On report. Bill in equity to enforce an agreement of the defendant’s grantor to give a life lease to the plaintiffs of certain real estate in the possession of the plaintiffs, and to enjoin the defendant from prosecuting his writ of entry against these plaintiffs for the possession of the property.

On report. The case and material facts are stated in the opinion. cited upon the questions 'considered in the opinion: B. S., c. 81, § 56; Saco v. HopJcinton, 29 Maine, 268; Osgood v. Holy olee, 48 Maine, 410; Jordan v. Keen, 54 Maine, 417; Brown v. Veazie, 25 Maine, 362 ; Nason v. Richer, 63 Maine, 383 ; Johnson v. Goodridge, 15 Maine, 31; Bangor v. Lancey, 21 Maine, 472; OoTby v. Bussell, 3 Maine, 227; Foxcroft v. Sevens, 4 Maine, 75.

<p> New trial. Jurors. Practice. Evidence. </p> <p>A motion for a new trial cannot be sustained by evidence of wbat is said by jurors while deliberating upon a case. Such evidence is illegal and will not be considered by the court. And when by consent of parties jurors have been allowed to view animals claimed to be those in litigation, it is not such misconduct as will support a motion for a new trial, if the jurors look at them a second time when neither the parties nor their counsel are present, and no consent of the parties is given for them to do so.</p>

<p> Deed. Eoidenee. </p> <p>Where the description in a deed develops a latent ambiguity, parol evidence is admissible to explain the same. Such evidence is also admissible to show whether a monument partially but erroneously described was the one intended.</p> <p>While monuments capable of being identified must always control courses and distances, the measurement of the lines, whose courses and distances are given, should not be disregarded in determining the identity of the monuments claimed to be found with those referred to in the deed.</p>

On demurrer to bill in equity. The questions presented by .the bill, demurrer and joinder are stated in the opinion with the material facts. The cases were presented together. A private creditor of a partner is entitled in equity to a preference over a partnership creditor in respect to the private property. 1 Story Eq. § 675; Murrill v. Neill, 8 How. 414; 1 Am. Lead. Cas. (5th ed.) 588; Phelps v. McNeely, 66 Mo. 554, (27 Am. E. 378) ; MeOulloh v. Bashiell, 1 Am.

On report. Assumpsit on a promissory note for one hundred and seventy-five dollars, dated May 31, 1879, and payable in one year with interest.

<p>Bill in equity to compel the respondents to perfect their deed by affixing a seal.</p> <p>Heard on bill, answer and proof.</p> <p>The material facts are stated in the opinion.</p> <p>cited : Chitty Contr. 104, 105, 111, 1071, 1072 ; Story Eq. Jur. § § 165,1502, note 2; Adams v. Stevens, 49 Maine, 362; 3 Wash. E. P. 333, 349, 350, 368; Moore v. Griffin, 22 Maine, 354; Soutter v. Porter, 27 Maine, 417; Higgins v. Wasgatt, 34 Maine, 308; Abbott y. Abbott, 53 Maine, 356; Bates y. Foster, 59 Maine, 157; Johnson y. Leonards, 68 Maine, 239.</p> <p>cited: Randall y. Bradley, 65 Maine, 48; Fveleth y. Wilson, 15 Maine, 109; Flder y. Flder, 10 Maine, 80; Miller v. Whittier, 32 Maine, 203; Rowel y. Jewett, 69 Maine, 293; Mclntire v. Plaisted, 68» Maine, 363 ; Gould y. Murch, 70 Maine, 288 ; Thompson v. Gould, 20 Pick. 134; Wells y. Galnan, 107 Mass. 514. '</p>

<p>Public charity. Masonic lodge. Taxes. B. S., c. 6, § 6-</p> <p>The distinctive characteristics of a public charity are, that its funds are derived from gifts and devises, and not from fees, dues and assessments, and that it is not confined to privileged individuals, but is open to the indefinite public.</p> <p>A masonic lodge is not a charitable or benevolent institution, within R. S., c. 6, § 6, part secopd.</p> <p>Its real and personal estate is subject to taxation, and must bear its just and proportionate share of the expenses required for the support of government.</p>

On report. Trespass qu. cl. submitted to the court upon agreed statement of facts which are substantially stated in the opinion. The fact that the public had, for many years, to wit, thirty-five years, had access to the pond on said close, for the purpose of fishing, conferred no right upon defendant to enter plaintiff’s close for any purpose. The public cannot acquire an easement by prescription in land for the purpose of taking fish.

On exceptions and motion to set aside the verdict. • Assumpsit for money had and received amounting to thirteen hundred dollars. Also on account annexed for two thousand three hundred and sixty-seven dollars and twenty-nine cents, for three-eighths of the steamer Alice Virgie. The writ was dated April 7, 1877, and the plea was the general issue.

<p>On report.</p> <p>Assumpsit upon the following note :</p> <p>"Rockland, March 1, 1875.</p> <p>One year after date for value received we jointly and severally promised to pay Mary C. Turner, or her order, the sum of one thousand dollars, with interest at the rate of eight per cent, per annum.</p> <p>(Signed,) Benjamin Williams,</p> <p>Ephraim Dean, Jr.</p> <p>Mary A. Williams.”</p> <p>Attest: M. W. Earwell.”</p> <p>Indorsed: "March 1, 1876. Eeceived on the within, eighty dollars, one year’s interest. March 1, 1877. Eeceived on the within, eighty dollars, one year’s interest. March 1, 1878. Eeceived on the within, eighty dollars, one year’s interest.”</p> <p>Writ dated August 16, 1879. Plea, general issue, and brief' statement, by Mary A. Williams, one of the defendants. The action was brought against Mary A. Williams and Benjamin Williams only, the other maker, Ephraim Dean, Jr. not being; in the State at the time it was brought, which fact is averred in the writ as the reason for the non-joinder. Before trial, a default was entered as against Benjamin Williams.</p> <p>(Brief statement.)</p> <p>" And for a brief statement of her further defense she says that she signed the note described in the writ as surety only for Benjamin Williams and Ephraim Dean, Jr. who also signed the same, and for whose benefit alone the money was borrowed of the plaintiff by them anid said note was given. And that this was wellknown to the plaintiff and to saidM. W. Earwell, her agent, who loaned the money to said Williams and Dean and received said note from them; that at the maturity of said note, viz : on the first day of March, 1876, said note was extended and day of payment thereof given by the plaintiff to said Williams and Dean, for a valuable consideration to her, promised, paid and secured by the said Williams and Dean, without the knowledge or consent of the defendant; that at the expiration of said period of one year, viz : on the first day of March, A. D. 1877, said note was again extended, and day of payment thereof given by the plaintiff to said Williams and Dean for the further period of one year, for a valuable consideration by them to her, promised, secured and paid without the knowledge or consent of the defendant; and at the expiration of said last mentioned year, to wit, on the first day of March, 1878, said note was again extended and further day of payment given by the plaintiff to said Williams and Dean, for the further period of one year from that date, for a valuable consideration to her, promised,, secured and paid by the said Williams and Dean.</p> <p>" And the defendant further says at the time of the said several extensions, it was well known to the plaintiff that the defendant was surety only upon said note, and that it was given and signed by the defendant for the sole benefit of the said Williams and Dean; and that by each and every of said several extensions, the defendant was discharged from her liability thereon.”</p> <p>At the trial the following' letters were put in evidence :</p> <p>"Rockland, Maine, February 17, 1877.</p> <p>Mrs. Turner, Madam, You hold our note, one thousand dollars, •due March 1, 1877. We write by advice of M. W. Farwell, Esq. to ask if you want the money for same at maturity of note, or extend it twelve months, by paying the interest. Please .answer on receipt of this and oblige, Yours respectfully,</p> <p>Williams and Dean, per Mayo.”</p> <p>"P. S. Please name your lowest rate for interest.”</p> <p>"St.-Albans, February 21.</p> <p>Messrs. Williams and Dean, You can have the money for the ¡same interest that you have been paying.</p> <p>Yours respectfully, Mary C. Turner.”</p> <p>"Rockland, Maine, February 7, 1878.</p> <p>Mrs. Mary C. Turner, St. Albans, Maine, Madam, You hold •our note for one thousand dollars, due March 1, 1878. We write to see if you will extend the note for twelve months, and ¡at what rate of interest. Please answer on receipt of this, and •oblige, Yours respectfully, Williams and Dean, M.”</p> <p>"St. Albans, Maine, February 10, 1878.</p> <p>Williams and Dean, Messrs. I will extend the note for twelve months at the same rate of interest. Please send interest (when •due) and I will send a receipt for the same.</p> <p>Yours, Mary C. Turner.</p> <p>cited: Leavitt v. Savage, 16 Maine, 72 ; Appleton v. Parker, 15 Gray, 173 ; Berry-¶. Pulleú, ¡69 Maine, 103; Mariner’s Bank v. Abbott, 28 Maine, 285; Lime Block Bank v. Mallett, 34 Maine, 547 ; S. C. 42 Maine, 356; Oxford Bank v. Lewis, 8 Pick. 458 ; Bank v. Bishop, 6 Gray, 319 ; Bank v. Bollins, 13 Maine, 207; Wilson v. Foot, 11 Met. 285.</p> <p>Mary A. Williams, contended, that the facts showed that Mrs. Williams was a surety and that the plaintiff had three times extended the note, for a year at each time, by an agreement with Williams and Dean, the principals, to pay her eight per cent, interest.</p> <p>There was a good legal consideration for the extension.</p> <p>In Bank v. Woodward, 5 N. H. 99, on p. 106, court say: "The consideration alleged to have been paid for the forbearance, was interest at twelve per cent.” This was illegal. But it is well settled, that a promise founded upon an usurious consideration, is not void.</p> <p>" He who takes or secures ” (i. e. agrees to take) " more than six per cent, for day of payment, is made liable to certain forfeitures, which in a suit upon the contract may be deducted from the debt; and a promise to pay more than six per cent, is held to be invalid, as to all above six per cent. To this extent and no further, is a contract affected by usury.” Wheat v. Kendall, 6 N. H. 504, 506-7, strongly enforces this.</p> <p>If, therefore, the agreement to pay eight per cent, as a consideration for the extension, was not valid as to the two per cent, over the legal rate, it was a valid agreement to pay and receive, six per cent, by which both parties were bound; the contract being void only as to all over that rate.</p> <p>And the agreement to pay eight per cent, for a year, was a good consideration for plaintiff’s agreement to extend the note for a year; as was held in the cases from the N. H. Bep’ts; and explicitly in Wheat v. Kendall, 6 N. H. 504, where the instruction, that, a ” promise to pay extra interest upon the note, was a good and sufficient consideration for the contract for delay of payment of said note,” was held correct.</p> <p>In Bailey v. Adams, 10 N. H. 162, 164, the court say, that, " the agreement to pay simple interest may be a sufficient consideration for such a contract to delay, if there is, in the contract for delay, a stipulation by which it is secured to the creditor for any specified time. As, for instance, if the creditor, the note-being due, should agree with the principal to delay the payment six months,' on the consideration that the principal promised to pay the interest for that period of time, this would be a contract upon a sufficient consideration.</p> <p>"The promise to pay the interest under such circumstances, would bind the principal to the payment of it for the period agreed on, and thus secure the creditor a right beyond what he had before, even if the note contained a promise to pay interest; because, the debt being due, the principal, or surety, before the new agreement, might pay it at any time, and the original contract therefore did not secure the creditor interest for a single day to come.”</p> <p>That either of these extensions was sufficient to discharge the defendant, there will be no question.</p> <p>" A surety has a right to have his liability remain precisely as he has himself fixed it, and any change in the contract or duty, for the performance of which he is holden, made without his consent, will discharge him.” Andrews v. Marrett, 58, Maine, 539, and cases cited.</p> <p>W. and D. agreed with plaintiff, or her agent, to pay eighty dollars for another year. Both parties were necessary to an "agreement.” Such an agreement implied a promise to delay payment of the principal that year. No express words to that effect need be used.</p> <p>Crosby v. Wyatt, 23 Maine, 156, does not conflict with the principles cited from New Hampshire cases. It only disagrees with New Hampshire on this question, whether payment of interest in advance raises an implied promise to extend.</p>

On report. Writ of entry to recover possession of certain real property situated in Albion and described in tbe declaration. Writ dated April 26, 1880.

On exceptions. Petition, filed at the October term, 1880, for a decrease of alimony allowed by the court by way of an annuity of two hundred and fifty dollars during life to the respondent in a libel for divorce, filed by the petitioner against the respondent at the March term, 1860. The respondent moved to dismiss the petition on the ground that the court had no right, jurisdiction or authority over the matter.

On report. An action to recover damages sustained from a defect in a highway in the defendant town. Writ was dated October 11, 1880. By the terms of the report if the following notice was insufficient, the plaintiff was to become .nonsuit, otherwise case to-stand for trial.

On report. Writ of entry, dated September 3, 1880. Plea, general issue. At the trial the defendant offered in evidence the deed of John Clough to him. The plaintiffs objected to the deed upon the ground that it was not properly executed.

On report. Assumpsit on sundry coupons cut from town bonds, as follows : $396 from bonds issued under vote of March 23, 1868; $90 from bonds issued under votes of October, 1, 1870; and $434 issued under vote of November 21, 1874, and June 10, 1875,. in all amounting to $920. The following are the bonds from which the coupons were taken (one from each series). $100. State of Maine. No. 56. Loan of town of Anson. Somerset Railroad.

On report on agreed statement. Action on poor debtor’s bond. Plea, general issue with brief statement setting up the statute of limitations and performance of one of the alternative conditions of the bond by disclosing and taking the poor debtor’s oath. ' The bond was in common form, but the sureties were not approved in writing by the creditor, nor by two or three justices of the peace and quorum of the county -where the debtor was arrested or imprisoned.

On report. Assumpsit for money paid and expended. The writ was dated May 10, 1876, and served on the alleged trustees on the same day. The question presented to the court related to the disposition of the funds in the hands of the trustees. The facts shown by the disclosure are sufficiently stated in the opinion. The assignees of a portion of the funds in the hands of the trustees appeared and claimed the funds.

On exceptions from superior court. Debt on recognizance. The opinion states the case and the material facts. This recognizance was the voluntary contract of record of the defendants. ■ Voluntary, because they appealed. The municipal court of Augusta had jurisdiction of the forcible entry and detainer suit. The defendant appealed to the Supreme Judicial Court, and gave the recognizance to pay all intervening costs and rent of the premises.

On retort. Mandamus to compel the officers of the North Castine Mining-Company to issue to the petitioner a certificate of stock for two hundred shares of the capital stock of the company. The opinion states the material facts.

On report. An action to recover the tax of twenty-five hundred dollars assessed by the Governor and Council upon the defendant corporation, for the year 1880, by virtue of stat. 1880, c. 246, which was enacted March 19, 1880, and reads as follows : An act for the taxation of telegraph companies. Be it enacted by the senate and house of representatives in legislature assembled, as follows: Section 1.

<p> Chattel mortgage. After-acquired property. </p> <p>mortgage of furniture then in a dwelling house, and of that afterwards to be purchased, conveys a valid title to that only of which the mortgagor was then the owner.</p> <p>The mortgage being void as to after-acquired property a mere delivery of the same by the mortgagor to the mortgagee, the former retaining the possession and control, does not transfer a valid title as against attaching creditors.</p> <p>In such a case the mortgagee cannot hold the subsequently purchased property as against attaching creditors, because the mortgage when recorded did not embrace it. He cannot hold it as a pledge because he did not retain the possession.</p>

<p> Equity. Principal and surety. Evidence. Executors and administrators. Practice. </p> <p>The complainants were co-sureties with J. A. on a bond given by his son G. as principal for the faithful performance of his duties as cashier of a bank. G. proved to be a defaulter, assigned an insurance policy which he had taken out upon his own life to his father to indemnify him for his liabilities upon this bond aud certain other paper (the amount of the insurance being more than sufficient to cover them all) and shortly after died insolvent, three minor legitimate children surviving him.</p> <p>J. A. accepted the assignment, notified the insurance company thereof, and received their consent thereto, paid a premium which fell due thereon, informed his co-sureties that he had received it and requested them to pay his third of the sum due, on the bond, promising to reimburse them when he realized on the life policy. They however paid nothing until called upon by the bank after J. A. had died also, insolvent. Upon the call of the bank they paid the amount of the cashier’s deficit, one-half each.</p> <p>With the consent of J. A’s executrix, G’s administrator took the policy giving her an indemnity and collected and still holds the amount thereof, though the complainants have demanded so much thereof as was necessaiy to reimburse them for the amount which they paid, of both the respondents who are respectively the executrix of J. A. and the administrator of G.</p> <p>Held, that if the minor children of G. had been joined as defendants so that the rights of all parties might be settled in one suit, complainants would be entitled upon this showing to a decree in equity that the assigned policy was held by J. A. and the proceeds thereof by his executrix through her agent, and by the administrator of G. subject to a trust in favor of the complainants for their indemnity as co-sureties with J. A. on the bond. Held further,</p> <p>1. That the co-sureties were entitled to the benefit of the indemnity under such circumstances although it was intended by the assignor and assignee for the benefit of J. A. alone.</p> <p>2. That the consent given by J. A’s executrix that her co-respondent might collect the money on the policy, and the fact that he did collect and now holds it having indemnified her cannot relieve the executrix from her responsibility to the complainants for the trust fund.</p> <p>3. That the testimony of one of the complainants as to matters occurring in the life time of J. A. is'not competent in this process against his executrix.</p> <p>4. That the declaration of J. A. made after the assignment to him are not competent evidence for the respondents.</p> <p>5. That before a decree can be had for complainants the minor children of the assignor must be made parties to the suit and have an opportunity to be heard through their guardian.</p> <p>It is not good practice to print the formal parts of documents respecting which no question is made for presentation to the court.</p>

On exceptions from superior court. Scire facias on a recognizance. The defendants filed special demurrer to the writ, which was overruled and the defendant alleged exceptions. The opinion states the material facts. cited: Bridge v. Ford, 7 Mass. 209 ; Com. v. Baggett, 16 Mass. 447 ; Com v. Doioning, 9 Mass. 520; Bom. v. Nye, 7 Gray, 316; State v. Baker, 50 Maine, 45 ; State v. Young, 56 Maine, 219 ; State v. Hatch, 59 Maine, 410.

On report. Debt on poor debtor’s bond. The opinion states the material facts. The record of the justices is not conclusive as to their jurisdiction, and want of jurisdiction may be shown by parol. Spaulding v. Record, 65 Maine, 220; Boss v. Edwards, 47 Maine, 145 : 23 Maine, 144: Hackett v. Larie, 61 Maine, 31; Poor v. Knight, 66 Maine, 482. The facts which determine their jurisdiction must appear of record. Inman v. Whiting, 70 Maine, 445, and cases cited.

On retort. Bill in equity. Heard on bill, demurrer, answer and proof. The following are the material parts of the bill: Humbly complaining, . . .

<p> Pleading. Pleas puis darrein continuance. </p> <p>A plea puis darrein continuance is a waiver of general issue and if the matter pleaded is found against the defendant the plaintiff is entitled to peremptory judgment.</p>

On REPORT. Bill in equity heard on bill, answer and proof. The material facts are stated in this opinion. cited: Silloway v. Ins. Go. .8 Gray, 399 ; Barry v. Abbott, 100 Mass. 396, and cases there cited; Tuche,r v. McDonald, 105 Mass. 423; Bresnihan y. Sheehan, 125 Mass. 11. It is claimed that we cannot hold checks in the hands of Dana, because he was treasurer and held them in his official capacity. 1.

On exceptions. (Exceptions.) ■ Assumpsit for support of certain paupers named as follows in the writ: Joseph Gordon and Catharine Gordon his wife, and Joseph Gordon, Jr. son of said Joseph and Catharine, and also Augustus Ingalls and Flora Ingalls wife of said Augustus, and Napoleon Ingalls and Emily Ingalls, children of said Augustus and Flora-; and also, Joseph Charity and Susan Charity wife of said Joseph Charity, and Frank Charity son of said Joseph and Susan.

On exceptions. Trover to recover the value of three horses. The opinion states the material facts. The price paid for an article is not evidence of fair market value. It often depends upon the advantages or necessities of one party or the other, changing the price in the particular instance.

On exceptions. Assumpsit for pauper suplies furnished Mrs. Nina L. Milroy and her infant child. The settlement of the paupers was denied by the defendants on the ground that the marriage of Nina L. Milroy then of Houlton, to Theodore Milroy then of Ludlow, Avas procured by the agency or collusion of the municipal officers of the plaintiff toAvn. The verdict was for the defendants. The marriage took place May 25, 1877. The child was born July 27,1877.

On motion to set aside the verdict of the jury. Held: to be, the duty of a person approaching a railroad crossing to carefully look out for trains, although the signals required by law are not given and it is gross negligence to omit this precaution.” Wildes v. Hudson, B. B. 29 N. Y. 315 ; Brnstv.

An appeal from the decision of the judge of probate in the matter of the probate of the will of Sylvanus Rich. The will was dated April 9, 1872. In March, 1879, he made a codicil giving his niece, Mary K. Gilkey, the income of ten thousand dollars during her life. On the sixteenth of March, 1880, the testator destroyed this codicil and made another disposing in a different way of the property given by the former codicil in trust for Miss Gilkey.