Volume 74 — Maine Reports

ON REPORT. The opinion states the case and the material facts. The action on this bond must have been brought on R. S., c. 72, § 15, and that plainly shows how the guardian is 'to be required” to pay over the money.

<p> Tax title. Mortgagor. Tenant. Stat. 1878, c. 35. Stat. 1880, o. 214. </p> <p> Constitutional law. </p> <p>When a mortgagor, by Ms mortgage, is bound to pay all taxes, accruing on the estate, he cannot permit the estate to be sold for taxes, and by purchasing it on such sale acquire a title against the mortgagee.</p> <p>.Neither can a tenant for life or for years, thus acquire a title against the reversioner, nor a tenant of the mortgagor against the mortgagee.</p> <p>When Hie tax deed is void on its face, or the person signing is not showh to he a treasurer, (or collector as the case may he,) or the deed is not dniy recorded, or the payment for the tax deed was by one whose duty it was to pay the tax and he seeks to uphold it for fraudulent purposes, no tender or payment of taxes, etc. is required by stat. 1878, c. 85, from one contesting such deed.</p> <p>Whether stat. 188G, c. 214, requiring a deposit of taxes, interest and costs, before the owner of land can commence or defend a suit, is constitutional, Quera?</p>

<p>ON exceptions from the superior court.</p> <p>An action to recover damages for injuries to person and property' on account of alleged negligence and unskillfulness on the part of the defendant’s servant in driving a horse in a public street of Waterville, March 10, 1880. The writ was dated March 31, 1880, and contained an averment, that the plaintiff by reason of the injury "was disabled for a long time from doing his ordinary business as a physician and surgeon in regular standing and practice.”</p> <p>At the trial the plaintiff testified as follows :</p> <p>Question. What is your business ? Answer. Physician. Mr. Webb, — I object to that. . . . [Witness produces two documents purporting to be diplomas.] Witness, — This is my diploma which I received at Philadelphia, granted at the time it purports to have been. Mr. Webb, — 1 object to the question. . . . Witness, — I attended a course of medical ■lectures at the institution named in the diploma. I was there throe terms. The last was in 1866. 1 was there three months at a time. There were lectures on medicine and medical studies in that institution. [Objected to.]</p> <p>Question. How large were the classes? [Objected to and admitted.] Answer. There were eighty-five in the last class that I was in, when I graduated, or about that.</p> <p>Question. Was that a public institution at which any one could attend by paying the fees required? [Objected to, and the witness was allowed to describe the building and the institution.] Ansioer. The building was on Sixth street, College Hall, so called, a large double building, three stories, I think. The second story was occupied for the institution. And the first term I was there I think there were about two hundred and some odd of students, and about as many the second; and the third term, there were more. I have forgotten how many professors there were, but those names on the diploma were all professors. Should guess the building was one hundred feet one way and forty the other. All branches of surgery were taught there. I completed the full course. I had studied medicine, years before, with an old physician in Searsport, Maine, old Doctor Beals; I was with him two years, I think; perhaps not all the time, but oif and on. Cannot tell whether all that were in the faculty signed my diploma when I graduated; I think the most of them did, though.</p> <p>Counsel for plaintiff then offered in evidence, certificate of Eclectic Medical College of Pennsylvania, to Marshall H. Holmes, dated January 25, 1866, which was objected to and admitted. Also offered certificate of Eclectic Medical Society of the state of Maine, dated June 23, 1869, which was objected to and admitted. Also placed in evidence c. 597, of the private and special laws of 1868.</p> <p>On cross-examination the witness, testified :</p> <p>Question. I now produce for your inspection the paper which you have putin, entitled Eclectic Medical College of Pennsylvania, dated January 25, 1866, and signed Z. C. Howell, president, (I cannot read the secretary’s name.) Joseph Sites, one of the professors, Henry Hollellenbech, another professor, Joseph P. P. Fitler, another professor, John Buchanan, another professor, A. ~W. Clark, another professor, E. Downs, another professor. Will yon state whether there is any seal upon that diploma, made by impression upon the paper ? Ansvjer. It is a seal as they put on to all diplomas, printed on a ribbon of silk or satin. Think I was first at this college in 1882 or 1883, I cannot say which. I then resided in West Watorville where I was in practice. Think I went to the college in October. Was gone about three months. This was the first medical school I had ever attended. Think I went again the next spring, the summer time, June term I think, but not certain. That would be in 1883 or 1884. I staid throe months. I next went in October, 1886, and staid about three months. Had not before attended a medical college regularly. I have been in a number of medical schools before that in Philadelphia. Don’t mean that I attended them. This diploma certifies that I was there three terms. I was there when I received this diploma. I took it from Philadelphia to West Watorville with me. Think it was delivered to me by Mr. Sites. I paid my regular college fee. Por the diploma 1 paid thirty dollars to the dean of the college, Mr. Sites, I think; I don’t recollect. Think Howell was president when I was there. I cannot describe him. He was a stout man about forty-five or fifty years old. Cannot recollect the name of the professor of chemistry when I was there. Sites was professor of obstetrics, and Clark of materia medica, I think, but am not certain. I haven’t looked at that diploma or thought anything about it. Downs was professor of surgery. I recollect him very well.</p> <p>Question. John Buchanan is put down here as professor of surgery? Answer. O yes, I am mistaken. He was a stout thick-set man, I should think about forty when I saw him. He might not have been over thirty-five or thirty-eight. Don’t know where he is now. Tho last time I heard of him he was in what they called his place at five hundred and fourteen Pine street. Think I had a journal from that college within a year and a half or two years. That is all I know of him. That diploma is in just the same condition now that it was when I received it. The lettering is precisely the same for anything I know. It has been in my possession all the time, hung up in my office.</p> <p>The presiding justice instructed the jury as follows :</p> <p>. . . "For the purpose of this trial, gentlemen, I instruct you that if you should find, under the rules that I shall proceed to give you with respect to master and servant, that in performing that particular service of driving John Canning from the railroad station to the defendant’s house, George Beaulieu was acting as the servant of the bishop as representative of the catholic church, although for certain other purposes he was the servant of the defendant, the defendant in this case would not be liable, whoever else might be liable; and it is unnecessary for you, as I have intimated, to pursue that inquiry.</p> <p>"Now, he is to be deemed the master who has the choice, the selection, the direction and control and the right to discharge the alleged servant; whose will is represented by that alleged servant,'not only as to the result of the work performed or to be performed by the servant, but in all its details, in the means by which the work is to be performed. To illustrate this relation between master and servant and distinguish it from other kinds of employment, take the familiar case of those known as contractors. The owner of a lot about to erect a building upon it, contracts with B to build the brick walls of that structure for a certain specified sum, to be paid upon the completion of the work; or work to be done, if you please, in accordance with certain plans delivered to the contractor. That contractor represents the will of the owner of that lot with respect to the result of that work. He is answerable to him for the result of it as called for by the plans, not in its details, not in the means by which the work is to be performed. The owner of the lot under that arrangement would have no authority to direct or control the laborers, the hod-carriers or thé brick-layers; to select them, or to discharge them if they proved unfaithful; no right to discharge one and employ another in his stead for the same bind of service. All the details and all the means would be under the direction and control of the contractor. ■ And if an accident, an injury should result from the negligence of a hod-earner or brick-layer, the contractor would be answerable to that particular party injured by the negligence and not the owner of the lot, although the owner of the lot in the end would receive the benefit of that work. You perceive that the rule, carefully examined, is a just and reasonable one. The law says it is just and reasonable that he who has the selection of the agent, the servant, the right to dismiss him at any time for unfaithfulness on the slightest intimation or indication of carelessness, should be responsible for any injury resulting from a want of care or skill on the part of such servant. But as the reason of the rule does not apply, so should the rule itself not apply' where the person sought to be charged for the negligence, does not have such control over the servant, such right to employ him or discharge him. For the purpose of insuring greater precision of statement and more carefully guarding the rights of the parties here, I have, during the progress of the arguments this afternoon, reduced to writing, a few sentences covering the propositions which I will give you, as applicable to- this particular case.</p> <p>"It is conceded that the defendant was the owner of the team driven by Beaulieu at the time of the collision; but if you find that the catholic bishop of the Portland diocese, having the power of appointing and removing the defendant as superintending priest of the Waterville mission, had also not only the right to require a report of the result of the mission, and a business settlement, and a payment of the surplus receipts of the mission at the end of each year, but the right to direct as to the details of the work of the mission, and the means by which that -work ■was accomplished, and further find that under the relations existing between the bishop and the defendant at that time, the bishop had the direction and control of Beaulieu in the performance of such duties as he was then performing, and the right to discharge him at any time from such service for carelessness or unfaithfulness, or any other cause, and select and employ another in his stead, and the service then performed by Beaulieu was for the benefit of the bishop, as representative of the catholic church, you would be authorized to find that Beaulieu was the servant of the bishop and not the servant of this defendant, and this defendant would not be responsible. But if, on the other hand, you find the defendant, as conceded, the owner of the team so driven by Beaulieu, and find that under the relations between the bishop and the defendant, the defendant did not represent the will of the bishop as to the details of the 'work of the mission and the means by which it should be accomplished, and that the defendant himself had the selection and employment of Beaulieu for such service as he was then performing, and the right to discharge him at any time and choose another in his place, and had the entire control and direction of Beaulieu with respect to such duties as he was then performing, then, although the bishop, as representative of the church, directly or indirectly received the benefit of such service, you would be authorized to find the defendant answerable for the results of Beaulieu’s negligence, the other conditions, to which your attention will be called, being fulfilled. .</p> <p>"I instruct you as matter of law that the plaintiff is not prohibited from recovering damages for loss of business as a physician, although he had no such degree from a public medical institution or no such license from the Maine Medical Association, if he satisfies the jury that he actually received cash for his services. It would be a question of fact for the jury whether his business was a profitable one or not without such degree or such license; whether he would receive by voluntary payments from his patients, compensation for his services. You have heard the arguments of the counsel upon the one side and the other in reference to his loss of business as a physician. This is proper matter for your consideration. 'It is proper for you to consider what amount of cash he received out of the charges which he made; but, as is argued by counsel, finding the ratio of charges might be a proper manner of determining the relative loss of services prior and since the injury.”</p> <p>Mr. Webb: Will your honor instruct the jury that if they find that by reason of the horse being frightened or otherwise, or became uncontrollable and Beaulieu could not guide him, and the collision resulted from that, the defendant would not be> liable?</p> <p>The Court: I cannot give yon that rule.</p> <p>The verdict was for $1610.04</p> <p>cited: Abbott’s Trial Ev. 382 ; Finch v. Qridley’s Fx’r, 25 Wend.. 469 ; Sedgwick on Damages (6th ed.) 103, '*92 ; Nebraska City v. Campbell, 2 Black. 590; Wade v. Leroy, 20 How. 34;' Ballou v. Farnum, 11 Allen, 73 ; N. J. Express Co. v. Nichols, 33 N. J. L. 434; Shear. andKed. Negligence, § § 71, 73, 74, 77, 79; 2 Hillard on Torts, 436; McCarthy v. Second Parish Church of Portland, 71 Maine, 318; Eaton v. E and N. A.. B. B. Go. 59 Maine, 520 ; Murray v. 'Currie, L. K. 6 C. P. 24.</p> <p>R. S., c. 13, § 3, provides, that no one "shall recover any compensation for medical or surgicaL services unless ... he has received a medical degree at a public medical institution.” . . . The plaintiff in his writ claims special damage for loss of profits of business as a physician, and surgeon, in regular standing. It therefore became necessary for plaintiff to prove he was such, and offered those papers for that purpose. I submit that the papers offered do not establish' a " medical degree ” ora "public medical institution.” The corporate existence of the corporation and the issuing of the diploma are matters of record and are to be proved by the records, if' there are any. The same John Buchanan who sold this diploma is the same one now in prison in Philadelphia for making such, sales, and his confession made since the trial is a matter of history.</p> <p>The defendant was prejudiced by the example given by the-court of a " contractor ” to illustrate the relation between master and servant. A " contractor ” of the class described by the court is one who renders service in the course of independent occupation and represents the will of his employer only as to results,. and not as to the means by which it is accomplished. Sherman and Kedfield on Negligence, § 76. • As an abstract rule of law it is correct, but not being applicable to this class of cases it misled the jury as it is a forcible example given in the books relating to that class of contractors who agree to render results and not ■observe in the least, the will of its employer as to the means. A contractor ” hires for himself, and does not submit to the will of his employer, the employer has no control over the " contractor, ” when he submits he ceases to be a " contractor ” and becomes a . servant, and a " contractor ” is neither agent or servant of his employer. Sherman and Eedfield, § § 77, 81. The defendant was in no way responsible for results and neither party so claim, and the example given by the court was not germain to the issue and prejudiced the defendant.</p> <p>The defendant excepts to that part of the charge which ■ allows the jury to give plaintiff damages for loss of business as physician, although he had not qualified as prescribed in E. S., ■ c. 13, § 3. It is true, the statute does not affirmatively declare contracts between an unlicensed physician and his patients to be void, but they are so in effect. Eights which the law will not ■enforce, because against public policy, are illegal rights; the law does not refuse to enforce legal contracts. The legislature has the right to take away the remedy for the recovery of debts. As in the case of a public school teacher without certificate, Jose ■y. Moulton, 37 Maine, 367, or of a physician without being •qualified, Thompson v. Hazen, 25 Maine, 104, or an attorney without having taken the oath, &c. as in Perhins v. McDuffee, ■63 Maine, 182, or contracts executed upon the Lord’s day, or to recover the price of spirituous liquors sold, or for the sale of .goods bought to be carried about and peddled, where the statute required a peddler’s license, as in Robinson v. Howard, 7 Cush. 611, or for services rendered in peddling goods for another without license, as in Stewartson v. Lothrop, 12 Gray, 52, or to recover commissions as a broker without a license, as in Harding v. llagar, 63 Maine, 515, of for services as a "medical clairvoyant,” as in Bibber v. Simpson, 59 Maine, 181, or the price ■of hay pressed and put up in bundles unless branded in a certain manner, as in Richard v. Bayley, 46 Maine, 200. There can be no damage for loss of profits to a business which is not entitled to the security and protection of the law. . The plaintiff is not aided because he received or might receive gratuities, for no action lies for gratuities. Wells v. Wills, 4 E. C. L. 98, (8 Taun. 264;) Boyter v. Dodsworlh, 6 T. E. 681. There are-some authorities in point. In Sherman v. Fall Diver Iron Works Go. 5 Allen, 213, it is held, "that an unlicensed keeper of a livery stable cannot recover damages for an injury to his business caused by the escape of gas through the ground into the water of a well upon his premises.”</p> <p>In Sherman and Eediield on Negligence, § 599, a, the rule is stated as follows : "Nothing can be allowed for the loss of profits in an illegal business, such, for example, as a traffic carried on without the license required by statute.” It was so held as to an unlicensed liquor store. Kane v. Johnston, 9 Bosw. 154.</p> <p>In Fichará v. Bayley et al. 46 Maine, 200, it is held, "That no action can be maintained against the owner of a vessel for the non-performance of a contract to transport hay, if the bundles are not marked as the statute requires. Nor for neglect in taking care of the hay after its delivery to them for shipment, whereby the hay was greatly damaged.”</p> <p>In Buxton v. Hamblen, 32 Maine, 448, it is held, "That no damage can be recovered for non-fulfillment of a contract for sale of pressed hay not branded as the statute requires.” Trover will not lie for a note given for an illegal consideration. Morrill v. Goodenow, 65 Maine, 178. The defense of illegality is founded upon consideration of public policy and will prevail, whatever the form of action may be. Id. 179.</p> <p>In Lord v. Ohadbourne, 42 Maine, 441, Appleton, J., in discussing a similar principle, says : "The right to take away the remedy for the recovery of debts and for the recovery of' compensation in damages for torts, rests upon similar grounds. For a long time usury was a valid defence to a loan of money made against the provisions of the statute on this subject. So the right to recover has been denied, because regulations as to the survey, or the inspection of articles sold have been disregarded, though in all such cases the articles, sold were none the less valuable, and the seller was none the less in equity entitled to compensation for the thing sold. Much more, then, may the aid of the law be denied, when the plaintiff seeks compensation for what was held in defiance of its mandates, and with intent to disregard its clearest prohibitions.”</p> <p>In 1 Hillard on Torts, c. 4, § 25, it is stated as follows : "And tbe same principle has been extended to a claim for damages for an act somewhat more remotely connected with the wrongful conduct of the plaintiff. Thus where the plaintiff was proprietor of a public building kept for the purpose of exhibiting the art of boxing ... by persons skilled in that art, for an admission fee, and brought an action for a libel contained in a newspaper, imputing misconduct to him as such proprietor, and proved that he had sustained damages thereby; held it was an illegal occupation as it tended to prize fighting, and the case was given to the defendant.” It seems a rational rule, that if a business be illegal and outlawed, and the law refuse to shield and protect it, it will deny its relief to profits annexed to such illegal business.</p>

ON REPORT. Writ of entry, to recover possession of certain lands in the town of Kingsbury, dated August 20, 1879. Plea, general issue. The case was reported to the law court to be decided by non-suit or default according to the legal rights of the parties.

On report, the law court to render such judgment as the testimony, legally admissible, and the law require. Assumpsit for pauper supplies. • The writ was dated February 1, 1878. Plea, general issue. The opinion states the material facts.

On report. Agreed statement. Trespass against the sheriff for the act of the deputy in taking and selling plaintiff’s double wagon and hay-rack. The statement shows that on the twenty-third day of August, 1879, Selden Morton and Charles A. Luce owned the wagon and rack, each owning one undivided half.

<p>ON REPORT.</p> <p>Writ of entry to recover certain premises in Bangor which the plaintiff claims under a tax sale, under the provisions of B.. S., c. 6, § 159, et seq.</p> <p>The case is stated in the opinion.</p> <p>B. S., 1857, c. 6, § 145, which was before the court for construction in Orono v. Veazie, 57 Maine, 517, differs materially from'stat. 1880, c. 214.</p> <p>In the former, he who would contest a tax-title, must first pay or tender all such taxes, legal charges and interest thereon and all costs of suit to the other party ; and there was propriety in requiring aprima facie case to be made out, as stated in French v. Patterson, 61 Maine, 203, before one party should be obliged to pay or tender all such sums to the other party. Under the latter he has only to deposit the taxes, etc. with the clerk of the court to be finally disposed of as the court directs; and he has no standing in court until such deposit is made.</p> <p>No hardship is thus imposed. It is a means of securing the just proportion of the public expense of the owner of real estate who claims protection of person and property, a hearing in court and trial by jury, in trying to avoid such payment. If the assessment is found valid, the party ought to pay the taxes, if invalid or if the tax-title is upheld, the court can direct the money to be returned, if equity requires that to be done. Stat. 1880, c. 214, repeals the-former acts. Knight v. Aroostoolc R. R. 67 Maine, 291; Commonwealth v. Kdliher, 12 Allen, 480; Smith ‘v. 'Sullivan, 71 Maine, 150 -,'York v. Goodwin, 67 Maine, 260; Grosvenor v. Ohesley, 48 Maine, 369, so that no payment or tender can now be required by virtue of those acts.</p> <p>Counsel further ably argued the question of the constitutionality of the 1880 statute.</p>

ON REPORT. A writ of entry to recover possession of two lots of land in. Woodville plantation. The writ is dated September 16, 1878. The question presented to the court is stated in the opinion. cited: Whitmore v. Learned, 70 Maine, 276; Orono• v. Veazie, 61 Maine, 431; Orono v. Veazie, 57 Maine, 517; Phillips v. Sherman, 61 Maine, 548 ; Const. U. S. Art. 14, § 1; Const.

ON REPORT. Assumpsit to recover expenses incurred by plaintiffs for the support of paupers, David Gordon, his wife and minor children, from November 10,1874, to the date of the writ, December 10, 1875. Plea, general issue.

<p>ON EXCEPTIONS.</p> <p>Complaint under the provisions of stat. 1881, c. 88, §' 3'.,</p> <p>( Complaint.)</p> <p>"To the honorable Justices of the Supreme Judicial Court within and for the comity of Kennebec, at their session to be held at Augusta, in and for the county of Kennebec, on. the third Tuesday of October, a. d. 1881.</p> <p>"Kespectfully represents James Norris, of Monmouth, in said county of Kennebec, that he is the owner of a certain, mill, mill privilege and dam, at East Monmouth, in said county, situated on a certain stream, which is not navigable, connecting the .Annabessacook and Cobbosseecontee Great ponds, so called, and fis now operating the same.</p> <p>"That on the seventeenth day of July, 1843, one Truxton "Wood, of Winthrop, in said county, filed his complaint in the ■district court, within and for the county of Kennebec, against Samuel Noyes and Horatio G. Kelley, then the owners and •occupants of the same mill, mill dam and water power now ■ owned and occupied by the said complainant, therein alleging That the said dam and the head of water raised thereby flowed Jhis land situated in said Winthrop, and described as follows: ■Being a part of Great Back Lot 22, on the west side of South 'pond,‘so called, and bounded on the north by land of Luther ■ Cobb ; on the east by said pond; on the south by land of Joseph Wood, and on the west by land of Elijah Wood, and that-thirty : acres of the above land lying near the west side of said pond -were damaged by the flowing caused by said dam.</p> <p>"That said complaint was entered at the August term, 1843, 'was defaulted and commissioners appointed at the December term, 1843, and that said, commissioners made their report at the August "term, 1844.</p> <p>"That said complaint was afterward appealed to the June term, 1846, of the Supreme Judicial Court, within and for said county, ■•and continued in said court from term to term, until the May iterm, 1850, when judgment was given for the complainant, and 'execution thereon opened December 9, 1850.</p> <p>"That by the judgment of said court it was determined that "the respondents should pay as annual. damages occasioned by said flowing the sum of three dollars and twelve cents.</p> <p>"And your petitioner further represents that he is now the ‘owner of the mill, mill dam and privilege which was occupied by the respondents in the aforesaid complaint, and that as such -owner is compelled to pay an annual damage for the flowage caused by said dam as specified in the report of said commissioners, and in the judgment of said court, and that he is put to great trouble and expense thereby.</p> <p>"And that one Omer Pillsbury of Winthrop, in said county of Kennebec, now owns and occupies the land herein before described.</p> <p>"Wherefore your petitioner prays that the damages, if any, caused by flowing such lands by the dam and head of water raised thereby at its present height, may be assessed in gross; that such notice may be given on this petition to the respondent, Omer Pillsbury, as to your honors may seem necessary, and that commissioners may be appointed to ascertain, determine and report the damages, if any, in gross, caused by the flowing of said land by said dam at its present height, according to the statute in such case made and provided.</p> <p>Augusta, August 4, 1881. James II. Norris.”</p> <p>Defendant moved to dismiss because the time of payment of the annual damages was August 3, 1881, and one month did not thereafter elapse before bringing this complaint; also because the notice required by E. S., c. 92, § 19, to be given the respondent before bringing the complaint, was not given.</p> <p>The presiding justice overruled the motion.</p> <p>The defendant then filed a general demurrer, which was joined, and overruled by the presiding justice. The defendant alleged exceptions to the rulings on the motion and demurrer.</p> <p>The real question to be determined in this case is whether the notice prescribed by E. S., c. 92, § 19, should have been given.</p> <p>If the notice should have been given, then it would be necessary to prove the same, and as the complaint contains no allegation that the notice was given, it is insufficient in law, and demurrer lies, for whatever it is necessary to prove it is necessary to allege.</p> <p>The whole of stat. 1881, c. 88, (the amendment) is additional to and amendatory of E. S., c. 92, § 9. It relates to but one-subject, viz.: the assessment of damages in gross. The amendment, neither expressly nor by implication, repeals any portion of' c. 92 of the E. S., nor does it change, alter or modify any section, thereof, except § 9. It simply provides that in addition to,, annual damages they may be assessed in gross, and even then the. annual damage stands, unless the complainant elects within ten. days after the commissioners’ report is filed, to accept the damages, in gross. Therefore § 19, of c. 92 of the E. S., remains in full force. That section provides that "no new complaint shall be brought until the expiration of one month after the payment of the then last year is due, and one month after notice to the other party;- and the other party may within that time make an offer or tender as herein after is provided.”</p> <p>The reason for the enactment of the last named section, or at least that part of it which relates to the notice to be given, is fully set forth in § § 20 and 21. It was enacted that the parties might compromise the matter without litigation, or at least that the party against whom the complaint was to be brought, could have the opportunity of making his offer, and, if reasonable, avoid costs.</p> <p>Does not this reason still remain ? Cannot damages in gross be adjusted between the parties as well as yearly damages ? Cannot the mill owner now offer to pay a certain sum as damage for all future time, which offer if accepted by the land owner would be a perfect bar to all future complaints ?</p>

Bill in equty, beard on bill, answers and proof. The opinion states the case. Angerona Welsh was married to Thomas S. Welsh, and became seized of whatever interest she had in the mortgaged premises long prior to March 22, 1844.

Oh report from the superior court. Assumpsit to recover back eighty-one dollars and seventy-six cents, balance of a tax paid by the plaintiff to prevent the distress of certain personal property. The writ was dated May 27, 1881, and the plea was general issue. The report shows that N. K. Howard was assessed in Augusta for the year 1879, one poll, on stock in trade valued at $2000, and piano $75; total valuation, $2075. And for the year 1880 same.

ON EXCEPTIONS. Assumpsit to recover for the personal services of the intestate, alleged to have been performed for the defendant at Whitehall in, the state of Michigan, as foreman in charge of the defendant’s lumbering- business, in 1864-5, $1500 with interest, making the whole claim §3031.25. The writ was dated July 15, 1880. The intestate died at Whitehall, December 5, 1865.

<p>ON -EXCEPTIONS.</p> <p>This was an appeal from the judgment of a trial justice upon a complaint for costs for not entering' an action before the justice, alleging that he had been duly summoned to appear as defendant in such action. Upon motion, the appeal was dismissed by the court for want of sufficient recognizance and the appellant alleged exceptions.</p> <p>The material facts appear in the opinion.</p> <p>cited R. S., c. 83, § 18; Commonwealth v. Field, 11 Allen, 488; Commonwealth v. Merriam, 7 Allen, 356; Ilawlces v. Davenport, 5 Allen, 390; Benedict v. Cutting, 13 Met. 181; State v. Young, 56 Maine, 219; Ingalls v. Chase, 68 Maine, 113, and cases cited.</p> <p>A recognizance should recite the cause of its caption, and so much of the judgment as would show that the magistrate had jurisdiction. Commonwealth v. Downey, 9 Mass. 520 ; Spauld. Prac. 513. Sec also, Libby v. Main, 11 Maine, 344 ; Dodge v. Kellock, 13 Maine, 136; 'Oreen v. Haskell, 24 Maine, 180; French v. Snell, 37 Maine, 102 ; Owen v. Daniels, 21 Maine, 180; Harrington v. Brown, 7 Pick. 232.</p> <p>Without a proper recognizance an appeal cannot be sustained. Hilton v. Bongley, 30 Maine, 220; Holloff v. Hartwell, 38 Maine, 54.</p> <p>The original recognizance, filed the first day of the term, does not show the cause of the caption, &o. The appeal was therefore not perfected and a motion to dismiss was properly granted. French v. Snell, 37 Maine, 100.</p> <p>The original recognizance taken before the magistrate on an appeal from his judgment must be returned to the appellate court. A copy cannot be entered of record, neither is it admissible to contradict or show it defective. Stetson v. Corinna, 44 Maine, 29.</p> <p>The justice certified that the recognizance filed the first day, was the original recognizance filed before him. There cannot be two original recognizances. The paper filed in court the sixteenth day cannot be the original. But that paper is insufficient as a recognizance. (1.) Because it does not show that the complainant was aggrieved at the judgment of the justice. B. S., c. 83, §17. (2.) It does not show that the appeal was entered within twenty-four hours. Ibid. (3.) It does not show that the appellant recognized with sufficient surety or sureties to the adverse party in a reasonable sum. Idem, § 18. (4.) It does not show that the appeal was ever allowed by the justice. (5.) It does not show that the justice had jurisdiction. It only shows that it was a complaint for costs, but does not show what kind of an action it was that Blunt brought against the appellant.</p>

ON EXCEPTIONS. Assumpsit upon an account annexed, for the board of the defendant and defendant’s wife.

On exceptions. Assumpsit on account annexed for twenty-three dollars and 'ten cents. The writ was dated March 26, 1878, and the officer ¡attached six one-half barrels of coal subject to former attachment of William Lane.” The defendants are described as residing in Boston, Massachusetts, co-partners in the business of ■ quarrying slate in Monson, Maine, under thé firm name of The Oakland Slate Quarry Company.

ON REPORT. An action of review. The original action was assumpsit for1 money had and received, upon which judgment was rendered on default, for twenty-two dollars and eighty-three cents debt and ten dollars and sixty-three cents costs. A review was granted at January term, 1882.

On EXCEPTIONS. Debt on poor debtor’s bond. The writ was dated December 2, 1879 ; the plea was general issue, with brief statement setting up performance of one of the conditions of the bond. The facts sufficiently appear in the opinion. The citation was fatally defective and the justices, therefore, never acquired jurisdiction. Poor v. Knight, 66 Maine, 482 ; Knight v. Norton, 15 Maine, 337; Neil v. Ford, 21 Maine, 440; Slasson v. Brown, 20 Pick. 436.

Ok report . An action to recover damages for breach' of contract of defendant’s intestate to support the plaintiff. The writ was dated February 20, 1880. The plea was general issue, with a brief statement setting up that the plaintiff bad made her election to receive her support with the widow of the deceased, and the defendant ivas ready and willing to support lier there.

ON EXCEPTIONS. Writ of habeas corpus. The respondent was tbe keeper of the jail. A bearing was had before the court at the October term, 1881, and the following are the docket entries : October term, 1881. Hearing had. Discharge refused. Prisoner remanded.” • June 1, 1882.

Ox exceptions and motion to set aside the verdict. Action of covenant broken, in which the plaintiffs seek to recover damages for the non-performance, by the defendant, of his contract of July 23, 1872, under seal, in which he covenanted and agreed to slate the roof of tho meeting-house, then in process of erection by the plaintiffs, in a good, substantial and workmanlike manner, and to furnish everything necessary therefor, — slate, paper, nails and zinc,— to complete the…

<p>Bill in equity.</p> <p>Heard ou bill, answer and proof.</p> <p>The opinion states the case.</p> <p>To the point that this bill is maintainable we cito : Angelí on Watercourses, p. 620, § § 444, '447; Crittenden v. Field, 8 Gray, 621-626 ; Smith v. Adams, 6 Paige, 435; Burnham v. Kempton, 44 N. H., 78; Soc. Estab. Manufacturers v. Morris Canal Company, 1 Saxton (N. J. ch.), 157.</p> <p>That the complainants had a right to the natural and uniform flow of the water as it had been accustomed to flow for more than twenty years, as required by their mills, without wanton interruption or detention for purposes of sale by the respondent corporation, and subject only to a reasonable use of the water for the purposes of manufacture by said corporation, we cite: Thurber v. Martin, 2 Gray, 394; Gary v. Daniels, 8 Met. 466 ; Char,idler v. Howland, 7 Gray, 350; Bealey v. Shaw, 6 East. 208, (see pp. 214, 219) and Bell’s Law of Scotland, 641, cited and approved in Angelí on Watercourses, p. 104, n. 1 ; Da,vis v. Gelehell, 50 Maine, 602; Lancey v. Clifford, 54 Maine, 487; Phillips y. Sherman, 64 Maine, 174.</p> <p>The complainants had a right to use the water as they had been accustomed to use it for over twenty years and that holding back the ivater in reservoir was adverse to the common law right of complainants. Brace v. Yale, 10 Allen, 441; Clinton v. Myers, 46 N. Y. 511; Prentice v. Geiyer, 16 N. Y. (Hun.) 350.</p> <p>cited : Gould v. Boston Duch_ Company, 13 Gray, 452 ; Clinton v. Myers, 46 N. Y. 518 ; Davis v. Getchell, 50 Maine, 605 ; Burnham v. Kempton, 44-N.H. 78.</p>

Bill IN equity. Heard on bill, answer and proof. This bill is brought by the assignee in bankruptcy of Thomas K. Law to reform three contracts made by the bankrupt with the defendants, in which they conveyed to him certain interests in letters patent for improvement in machinery for making-clothes pins.

On report. Writ of entry dated October 9, 1880, to recover possession of certain real estate inNorthport. The plaintiffs were the children and legal heirs of Robert Elwell, who died in California in 1853, and they claim title under a deed from Jonathan Elwell to Robert Elwell, dated May 13, 1803, recorded January 31, 1806, in Hancock registry of deeds, volume 17, page 402.

ON REPORT from the superior court. Assumpsit upon six coupons amounting in all to fifty-seven dollars, cut from certain bonds issued by the town of Wiscasset. Tlie writ was dated March 26, 1880. The plea was the general issue and brief statement setting up tlie different defences indicated in tlie opinion. The following are copies of bonds from which the coupons in suit were cut: (Bond.) Number. United States of America. Dollars.. 7. State of Maine. 1,000. Town of Wiscasset.

<p> Amendment. </p> <p>In an action for damages for negligently burning “ ash lumber,” an amendment to the declaration was allowed substituting “birch” for “ash.” Held, that the amendment was properly allowed.</p>

ON EXCEPTIONS. The following are the exceptions : Action for an injury to horse, alleged to have been caused by a defective road. Writ dated August 5, 1879. One written copy to be made for the use of the court. The accident which occasioned the injury happened on November 30, 1878.

On exceptions from superior court. The opinion states the case. cited. Oom. v. Ballou, 124 Mass. 26; E. S., c. 17, § 1; c. 134, § 20; c. 82, § 66. The request was for a negative instruction. Such instruction is wholly unnecessary where full and appropriate affirmative instructions are given.

On report on motion to set aside the verdict. Action to recover sixty-three dollars expended by the plaintiffs as pauper supplies to Cyrus Chase, whose residence was alleged to be in the defendant town. The writ was dated January 17, 1881. The plea was general issue. The verdict was for the plaintiffs, and the defendants moved to set it aside, alleging it to be against evidence, the weight of evidence and the law. The material facts are stated in the opinion.

<p> Insolvency. Discharge. Creditors not residing in the state. </p> <p>A discharge in insolvency by an insolvent court of this state to one of its citizens, is no bar to an action brought by a citizen of another state in the courts of this state, when such creditor was not a party to the insolvency proceedings.</p>

<p>ON REPORT.</p> <p>The opinion states the case.</p>

ON REPORT. Trespass quare clausum. The declaration sets out different acts of trespass; that in 1880, the defendant, when plowing his, own land, drove his horse and plow upon and over the plaintiff’s, land, injuring her trees, etc. ; and in 1881, the defendant plow'ed and cultivated other lands of the plaintiff. The act of driving his horse upon plaintiff’s land in 1880, was not denied by the defendant; but the acts of 1881, defendant claimed were upon his own land.

On report, on motion to set aside the verdict, from superior ■court.

<p>On report.</p> <p>Peal action for the recovery of certain land situated in the town of Brooklin.</p> <p>The opinion states the case.</p> <p>The creditor attempts to obtain a title to the lands of the debtor by force of the statute. He "must see that all the requirements of the statutes are complied with and if he fail through any deficiency in description, or in any preliminary proceedings he will not succeed in his attempt to obtain a title.” Jewett v. Whitney, 51 Maine, 244; Lumbert v. Hill, 41 Maine, 482; 14 Mass. 20.</p> <p>In this case the requirements of 11. S-, c. 70, § 2, were not complied with. See Brackett v. liidlon, 54 Maine, 485.</p> <p>cited : Brackett v. McKen-ney, 55 Maine, 504; Bamford v. Melvin, 7 Green. 14; Phillips v. Williams, 14 Maine, 411; Lumbert v. Hill, 41 Maine, 475 ; Williams v. Amory, 14 Mass. 20; Huntress v. Tiney, 89 Maine, 241: Emery v. .Legro, 63 Maine, 357; Boynton v. Grant, 52 Maine, 220; Chase v. Williams, 71 Maine, 190.</p>

Bill IN equity. Heard on bill, answer and proofs. The bill sets out that the plaintiff sold and conveyed by warranty deed to the defendant, certain land in Bluehill, for the sum seven hundred dollars, and in payment for the same he took from the defendant a mortgage properly assigned and two notes upon which there was then due, after allowing for a twenty-seven dollar indorsement on one, the sum of one thousand eighty-two dollars and six cents, as appeared by the face of the…

On REPORT. The plaintiff was assignee in insolvency of Marcellus Walker and Samuel E. Simpson, insolvents, and brought this action, the writ being dated September 5, 1881, to recover the value of certain real and personal property mortgaged to them within four months prior to the issuing of the warrant of insolvency to secure them for money before that time loaned the insolvents, and for other money advanced and paid by them to certain creditors of the insolvents, alleging…

<p> Practice. Executor and administrator. Statute 1873, c. 145. Evidence. </p> <p>Trust. Limitations, statute of.</p> <p>The judgment of tlie justice presiding to whom a case is referred, is conclusive as to the eifect of the testimony.</p> <p>When the executor or administrator of a deceased party'is a party to a suit, he may by virtue of stat. 1873, c. 145, testify to any facts legally admissible upon the general rules of evidence happening before the death of such person.</p> <p>An interested witness can testify in a suit in favor of one party when the other is an administrator.</p> <p>The reception of inadmissible testimony de bene esse by the judge to whom a cause is referred, furnishes no ground of exception unless it appears that his decision was based in whole or in part on such testimony.'</p> <p>A husband received from his wife bonds belonging to her. Held, That the. question, whether they were received by him as a gift or in trust for her use, is one of fact, as to which the decision of the presiding justice hearing the cause, is conclusive.</p> <p>Time does not run against a cestui que trust until the trust is disavowed, and the disavowal made known to the cestui que trust.</p>

<p>On bepoRT on agreed statement.</p> <p>The opinion states the case.</p> <p>submitted without argument.</p> <p>cited: Dillon’s Municipal Corporations, vol. 1, § 184; R. S., c. 3, § § 41', 42, 43; R. S., c. 18, § § 40, 41, 42, 44, 70, 71, 72; State v. Gorham, 37 Maine, 451; Davis v. Bangor, 42 Maine, 522; State v. Milo, 32 Maine, 55; Commonwealth y. North Brookfield, 8 Pick. 463.</p> <p>We contend the city of Rockland cannot be held under the special or separate indictment.</p> <p>I. Because if said highway was not divided as required by R. S., c. 18, § § 41, 42, it was ■ divided by mutual consent, which division has been acquiesced by both towns for thirty-two years, and that the bridge or. portion of the road defective, has been wholly under the jurisdiction of the town of Thomaston during that time. Chenery v. Waltham, 8 Cush. 327 : Todd v. Rome, 2 Green. 6.1 ; /State v. Wilson, 42 Maine, 9 ; State v. Bradbury, 40 Maine, 154; Rowell v. Montville, 4 Maine, 270; Gilpatrick v. Biddeford, 54 Maine, 93.</p> <p>IT. Because tbe case shows that the defect, which caused the indictment, was wholly outside of the limits of the city of Eock-land, and within the limits of the town of Thomaston. Harm v. Sawyer, 38 Maine, 37.</p> <p>III. Because it appears that the town of Thomaston has within six years made repairs on the way or bridge, and they are estopped from denying the location. B. S., c. 18, § 66; McCann v. Bangor, 58 Maine, 348.</p> <p>cited: B. S., e. 18, § 41; special stat. 1848, c. 131, § 5; Ham v. Sawyer, 38 Maine, 37 ; 2 Whart. Ev. 1334-1346 ; Gilpatrick v. Bidde-ford, 54 Maine, 93.</p> <p>And counsel further contended: There having been no division of this road by the towns, or by the county commissioners as was authorized by the statute on application to them the duty to keep them in repair was joint.</p> <p>There is no statute regulation touching it; but the court will look at the situation and the necessities of it. It must be one road and that road so constructed as to be safe and convenient. If each town was to build up to the lino each might elect a method and you might not have a road, or a bridge, constructed of the same material, of a common level, or each half so adapted to the other as to make it safe and convenient.</p> <p>This would especially apply to the construction of a bridge where a line between two towns runs in the centre of it lengthwise. The duty is imposed upon both towns to see that the bridge is constructed in a safe and convenient manner, and as it must be one bridge, the several parts upon the two sides of the lino interlacing each other, it can only be constructed by a common authority. The towns must jointly participate in jt, and if they fail in their duty, are liable to a joint indictment.</p> <p>Admitting the duty to build the bridge and the liability upon both towns if it is not made safe, in the absence of any precedent or legal authority, the court should be governed by the obvious necessities of the case. It would be impossible to build a bridge in any other way than by joint action, and the argument ab inconvenienti applies. Those liable (to repair) may be indicted. Section 40.</p>

<p>ON REPORT.</p> <p>Writ of entry, dated March 15, 1881, to recover possession of lot number four, range three, in Greenfield. Plea, general issue.</p> <p>The opinion states the facts.</p> <p>cited: Rand v. Skillin, 63 Maine, 103 ; Small v. Procter, 15 Mass. 498; Poignard v. Smith, 6 Pick. 178; Overfield v. Christie, 7 Serg. and It. 177; Blandía,rd v. Chapman, 7 Maine, 122; Johnstone v. Scott, 11 Mich. 232 ; Patterson v. Stoddard, 47 Maine, 355 ; Proprietors of. Kennebec Parchase v. Laboree, 2 Greenl. 281; Powers v. Patten, 71 Maine, 585 ; Brotvn v. Allen, 43 Maine, 590; Patterson v. Doe, 8 Blackf. 238; Hitchings v. Morrison, 72 Maine, 331; Richer v. Hibbard, 73 Maine, 105 ; Prevail v. Filch, 5 Whart. 325; Comstock v. Smith, 13 Pick, 116; Brewer v. B. and W. R. R. Go. 5 Met. 478; Osterhout v. Shoemaker, 3 Hill, 518 ; Gregory v. Harrill, 3 Bing. 251; Right v. Bicknell, 5 B. and Ad. 278 ; Fenner v. Duplox, 2 Bing. 10; Rogers v. Pitcher, 6 Taunt. 202; Brook v. Biggs, 2 Bing. (N. C.) 426; Hall v. Butler, 10 A. and E. 93; Pratt v. Brown, 7 A. and E. 373 ; Miller v. Washburn, 117 Mass. 371; Atlanta Mills v. Morse, 120 Mass. 249 ; Hogan v. Smith, 16 Ala. 600; Kerr on Fraud and Mistake, 436 ; Harding v. Jewell, 73 Maine, 426; Savage v. Whitaker, 15 Maine, 26; Adams v. Stevens, 49 Maine, 362 ; Incorporated Irish Soc. v. Ridmrds, 4 Irish Eq. Pep. 197; McManus v. O' Sullivan, 48 Cal. 7.</p> <p>The defendant, and his wife who was a daughter of Pratt, became the owners of the mortgage from Garland to Pratt and in order to correct the error in the description in the Pratt deed which covered lot number five, they exchanged with Adams, the proprietor of lot number four, and conveyed the mortgage to him and took his deed of lot number four. This placed the parties legally on record where from the first they supposed they were, and whore they had been all the time equitably. And the defendant took possession under this legal title.</p> <p>Garland’s occupancy >vas under the supposed title of Pratt, up to 1863, when Pratt died, and which Pratt, by contract July 21, I860, agreed to convey to Garland, and did convey with mortgage back. Garland, after the mistake was discovered, still acknowledged the validity of the mortgage by making payments on it. Now here comes in the question in this case. Can title by dis-seizin be acquired in ignorance, or without intention, or by mistake ? The question is exactly answered by that elaborately argued case, Worcester v. Lord, 56 Maine, 265, which was affirmed in Dow v. McKenney, 64 Maine, 138, and 73 Maine, 105.</p> <p>"A disseizin cannot be committed by mistake, because the intention of the possessor to claim adversely is an essential ingredient in a disseizin. Ross v. Gould, 5 GreenL 204.</p> <p>There- was no evidence in this case of adverse holding, no proof of an intention to hold adversely. "The party being in 'possession, the law will refer that possession to a rightful, rather than- a wrongful title,” and if his possession was adverse or other than lawful, it devolves on him to show it. Rage v. McGlinch, 63 Maine, 472; Doe v. Williams, 13 E. C. L. 105.</p> <p>Again, all-parties supposed that the Pratt mortgage covered these premises. And there was enough of description to overcome the erroneous number of the lot. Abbott v. Rilce, 33 Maine, 204; Ghesley v. Holmes, 40 Maine, 536; 4 Mass. 196; 5 Met. 28 Thornton v. York Banlc, 45 Maine, 158; Stearns on It. A. 41; Golburn v. Mason, 25 Maine, 434; 8 U. S. Dig. N. S. 816, § 148.</p> <p>And as the mortgagor’s possession is in law the . possession of the mortgagee, Garland’s possession for years was not adverse but in submission to Pratt. Frye v. Gragg, 35 Maine, 29 ; Gray v. Hutchins, 36 Maine, 142; Simmons v. JSTahant, 3 Allen, 316. See Hall v. Stevens, 9 Met. 418; Arnold v. Stevens, 24 Pick. 110.</p> <p>The cases of tenants making an effort to purchase the legal title, where the courts hold that such an offer shall not prejudice the possessory right of the party is not the case at bar. That is where the party had already acquired rights by possession.</p> <p>Here, the original entry by Garland, was made under a purchase from LeBallister who was then uncfer an agreement to purchase, and it was that right which Garland bought. The distinction is plainly drawn in Blanchard v. Chapman, 7 Groenl. 122.</p>

<p> JReview. Second petition. </p> <p>After the lapso of eight years from the time of the commencement of an action, after two verdicts adverse to the petitioner, and after one review had on account of the discovery of new testimony, a second review will not be granted unless the court is fully satisfied that the alleged newly discovered evidence was unattainable by the utmost diligence and that it would change the result.</p> <p>It will not be granted to enable a party to discredit a witness, nor when the evidence is collateral.</p>

<p> Practice. </p> <p>When judgment is rendered for the plaintiff on demurrer, the defendant has no right to hare damages assessed by a jury.</p>

<p>ON EXCEPTIONS.</p> <p>Assumpsit on account annexed for fees as sheriff for the service of writs and other processes, received from the defendant, ail attorney at law, amounting to one hundred eighty-eight dollars and fifty cents. The writ also contained a count for money had and received, and was dated September 5, 1881. The jury returned a verdict for seventy-two dollars and ninety-three cents; and the defendant alleged exceptions, which are sufficiently stated in the opinion.</p> <p>cited : Tarbéll v. Dickinson, 3 Cush. 351; Perkins v. McDuffee, G3 Maine, 182; 43 N. H. 270; Adams v. Hopkins, 5 Johns. 253; Ousierhout v. Day, 9 Johns. 114.</p> <p>cited: Whitford v. Putin, 10 Bingham, 395 ; Molton v. Harris, 2 Esp. 549 ; Hacked v. King, 6 Allen, 58; Greely v. Quimby, 22 N. H. 335 ; 39 N. H. 268 ; 1 Grreeul. Evidence, (11 ed.) § § 86, 87, 88 ; Harris v. Whitcomb, 4 Gray, 433 ; Delchertown v. Dudley,, 6 Allen, 477 ; Hobart v. Gounty of Plymouth, 100 Mass. 166; Reynolds v. Brown, 15 Barb. 226; Thornton v. Moody, 11 Maine, 253: Wilson v. Hobbs, 32 Maine, 85; 2 Denio, 26, 40; R. S., c. 80, § 19; c. 116, § 5; c. 122, § 22; Smith's Leading Cases, part 2, 358 ; Judson v. Gray, 11 N. T. 408 ; Jenney v. Deles-dernier, 20 Maine, 183; Duceit v. Gunningham, 39 Maine, 386; White v. Johnson, 67 Maine, 287 ; Teele v. Otis, 66 Maine, 329; 2 Pars. Contr. (5 ed.) 543; Sojwtelle v. Dreio, 122 Mass. 228; Gollins v. JSTew Fng. Iron Go. 115 Mass. 25; Dodge v. Favor, 15 Gray, 82 ; Hinton v. Locke, 5 Hill, 437 ; 14 Johnson, 316 ; 10 Wallace, 383 ; 10 Mass. 29 ; Haskins v. Warren, 115 Mass. 514; Randall et al. v. Smith, 63 Maine, 105 ; 27 Rule of this Court; Emerson v. Fish et al. 6 Maine, 200.</p>

<p>Promissory notes. Intoxicating liquors. B. 8., c. 135, § 12; c. 82, § 13; c. 27, § 29.</p> <p>A note given in pursuance of the provisions of R. S., c. 135 § 12, payable to D P, treasurer of the county of K, may, under R. S., c. 82, § 13, be enforced by suit in the name of his successor though not expressly made payable to the successors of the payee.</p> <p>Revised Statutes, c. 27 § 29, is not to be so construed as to inflict both flue and imprisonment of sixty days.</p> <p>L was cohvicted of being a common seller of intoxicating liquor and was sentenced to pay a fine of one hundred dollars and costs, “ and in default of payment to stand committed according to law.” Held, That when he had undergone sixty days imprisonment his note to the county treasurer for the amount of Ms line and costs, if voluntarily given is without consideration, and if required as a condition of his release is void for duress.</p>

<p>ON EXCEPTIONS.</p> <p>The opinion states the case.</p>

On exceptions and motion to set aside the verdict. Trespass. Tbe writ was dated June 11, 1879. The verdict of the jury was for the plaintiff for four hundred four dollars and seventeen cents. The opinion states the facts. The plaintiff has been disseized, and a disseizee cannot maintain trespass for a wrong done after the disseizin and before re-entry. Murray v. Fitchburg li. B. Go. 130 Mass. 99.

<p> Husband and wife. Innkeeper. Personal baggage. Money. Stat. 7874, chapter 174. </p> <p>A trunk containing property belonging, some of it to the husband and some of it to the wife, was broken open after it had been delivered to the servants of an innkeeper, and jewelry belonging to the wife, and gloves of the value of six dollars and forty dollars in money belonging to the husband, were stolen. In traveling, the husband looked after the baggage, receiving and holding the checks therefor. Held, —</p> <p>1. That an action could not be maintained against the innkeeper by the husband alone for the value of the jewelry belonging to the wife.</p> <p>2. That an action could be maintained by the hushand against the innkeeper for the value of the gloves and the money.</p> <p>Where the amount of money taken for a journey is no more than is reasonably prudent for the payment of expenses, including-liabilities to accident, delays and sickness, it is exempted from the provisions of stat. 1874, c. 174, and may properly be carried as baggage, for the loss of which an innholder would be liable after delivery to him.</p>

Bill IN equity, in which plaintiffs seek to recover freight oil a cargo of one thousand five hundred and fifty-six tons of ice from Bath to New Orleans, at $2.25, . . . . $3501.00. And demurrage twenty-one days at New Orleans, 2100.00. $5601.00. Less amount of cash rec’d from def’ts or their agent, 1495.95. $ 4105.05. Heard on bill, answer and proof. The material facts are stated in the opinion. The claim for demurrage cannot be sustained.

ON EXCEPTIONS. Debt on judgment. Writ dated June 27, 1881. Plea, nul liel record. The opinion states the facts. cited: Longley v. Vose, 27 Maine, 179; 1 Greenl. Ev. § 73. cited: Ohadiuick v. Bast-man, 53 Maine, 17; 1 Greenl. Ev. § § 70, 565 ; R. S., c. 61, § 4-; Bryant v. Merrill, 55 Maine, 516; Farrar v. Fairbanks, 53 Maine, 143 ; Boy den v. Hastings, 17 Pick. 200; Oom. v. Beckley, 3 Met. 331.

ON EXCEPTIONS. An notion for pauper supplies, furnished by the plaintiffs to the wile and children of Charles E. Coombs, who derived his settlement from his father, Charles E. Coombs, Senior.

<p>On EXCEPTIONS.</p> <p>An appeal from a judgment of a trial justice, in an action of assumpsit, for labor cutting and hauling cedar rift, and money count, and referred to presiding justice, on agreed statement, with right to except.</p> <p>The exceptions state that "the presiding justice ruled that the writ was sufficient to create a valid lien; that the joinder of a money count in plaintiff’s writ with a count for his services upon 'the lumber, which writ the plaintiff was allowed on return day of said writ to amend by striking out said money count, was no waiver of said lien; that the cedar rift described in said writ and officer’s return thereon, was logs'and lumber, within the meaning of section 34 of chapter 91 of the Revised Statutes and amendments thereto.”</p>

<p>ON REPORT.</p> <p>Action of covenant broken.</p> <p>The writ is dated August 4, 1881, and declares upon a breach of the following contract, by reason of the failure of the defendant corporation to pay $23,610 of interest, which accrued and became due and payable upon the unsatisfied balance of the company’s obligation to the city, May 2, 1881.</p> <p>(Contract.)</p> <p>"Agreement entered into on the thirty-first day of October, 1868, between the city of Portland, and the Atlantic and St. Lawrence Railroad Company, under authority of an act of the legislature • of Maine, passed March 3,1868, entitled an act, making further provisions respecting the loans of credit heretofore made by the city of Portland to the Atlantic and St. Lawrence Railroad Company.</p> <p>"Whereas, the city heretofore, under the several acts of August 1, 1848, and July 27, 1850, issued and delivered its bonds to said company, which were negotiated for the use of the company, in aid of the construction and equipment of its Railroad, and were issued and dated as follows, namely, under the act of August 1, 1848 :</p> <p>On the first day of December, 1848, . . $200,000</p> <p>On the first day of May, 1849, . . . 100,000</p> <p>On the first day of August, 1849, . . 100,000</p> <p>On the first day of November, 1849, . . 75,000</p> <p>On the first day of February, 1850, . . 200,000</p> <p>On the first day of July, 1850, . . . 200,000</p> <p>On the first day of November, 1850, . . 75,000</p> <p>On the first day of January, 1851, . . 50;000</p> <p>In all, $1,000,000</p> <p>And under the act of 1850, on the first day of February, 1851, in all $500,000, all of which bonds were payable in twenty years from their respective dates, and are now outstanding.</p> <p>"And the railroad company, at the several dates of the aforesaid issues, gave to the city, as required by law, its several obligations, under the seal of the company and signatures of the directors, for the same several amounts, conditioned in substance that the company Avould pay the interest and principal of all said bonds, as the same should become payable and mature, and would save and hold the city harmless on account of the issue of the same.</p> <p>"And whereas, the railroad company, afterwards, as required by the act of 1850, on the third day of February, 1851, executed and delivered to the city a mortgage of all its railroad, property and franchise, for security of performance of all the-several obligations so given by the company to the city, and, for the enforcement of the lien given by law to the city, upon, the said railroad property and franchise; and afterwards, on the third day of April, 1853, in pursuance of a covenant in said mortgage, executed and delivered to the city, another mortgage on the same railroad property and franchise, as then existing, for further assurance, and additional security for performance of the same conditions.</p> <p>'And whereas, it was further provided, by said acts of 1848, and 1850, that sinking funds should be established for the redemption of the bonds so issued by the city, which sinking funds were, in fact, so established, and had accumulated, on the thirty-first day of July last, to the sum of §455,290.73, for-the fund under the act of 1848, and to the sum of $204,806.80, under the act of 1850, and it lias now become evident, that the-said funds will not, nor will either of them, at the maturity of the-city, bonds aforesaid, be of sufficient amount to redeem in full the city debts, to which the same are applicable, but will amount, severally, to very nearly one-half of the respective debts.</p> <p>'And whereas, the railroad company has represented to the city, that it will be unable to fulfill its obligations so given to the city, by paying the principal of the city bonds aforesaid at maturity, beyond the amount that the respective sinking-funds will supply therefor, and it appears that the city will be obliged to pay the balance of said bonds over and above the amount applied from the sinking funds towards redemption of the same, and will thereupon become entitled to demand from the company the immediate roinbursement of such balance, and in case of failure to make such reinbursement, will be entitled to pursue and enforce all its remedies, under the ¡said acts of 1848 and 1850, for such default; and tbe railroad «company, in view of the premises, has requested the city to ¡grant to it and its assigns, an extension of the company’s several obligations aforesaid, and an extension of the mortgages .•given for security of the same, for all the amount of the principal of the bonds, which the city will be so obliged to pay; and the parties have united in procuring the enactment of the afore- ■ said act of March 3, lB68, to provide the requisite legal authority and power, for such arrangements as require to be made by ¡the city, in this behalf.</p> <p>"And whereas, it is contemplated by the parties to this agreement that the commissioners of the sinking funds established ¡under the acts of 1848 and 1850, at the several times of the ■maturity of the city debts aforesaid, will be authorized to apply, •■and will apply, out of such respective funds, portions of the ■same, towards the redemption of the city debts so maturing, «corresponding to the proportions, which the whole respective funds; as then existing, shall bear to the whole respective city «debts to be redeemed, it being now estimated that the said proportion will be one-half part, very nearly, and the parties have ¡agreed, that they will• unite, if necessary, in such'proceedings .as may be suitable and requisite to give to the commissioners full authority to apply the existing sinking funds, in such proportional parts.”</p> <p>"Now, in consideration of the premises, in pursuance of the ■representation and request so made by the railroad company, ■and under the authority of the acts of March 3, 1868, subject-to all the limitations, conditions and restrictions of said act, the city hereby agrees, that it will grant an extension of the ■balances aforesaid of the company’s obligations- hereinbefore ■mentioned, and an extension of the mortgages given for security of performance thereof; which extension shall be for the •.term of eighteen years from the first day of January, 1870, for .all the balances of the obligations so given by the company to the city under the act of 1848, and for the, term of eighteen years from the first day of February, 1871, for all the balances of the obligations so given under the act of 1850.</p> <p>"And this agreement for extension shall be subject to all the arrangements, conditions and stipulations hereinafter provided and expressed as follows, that is to say :</p> <p>"I. The railroad company engages that, notwithstanding anything contained in this agreement, it will continue to provide for and pay the interest which shall accrue and bo payable on all the now outstanding bonds of the city, issued under the acts of 1848 and 1850, until the maturity of the principal of the same, and that it will continue to make all such contributions, as it is by law required to make, to the sinking funds established under those acts; and in case of default in either of these engagements, the city is to be at liberty to terminate the extension hereby granted, and may resort to all the legal remedies for such default, provided and existing under the acts of 1818 and 1850.</p> <p>"II. The railroad company further engages, that it will semiannually, provide for and pay to the city, or deposit to the use of the city, at such place as the city treasurer shall appoint, the accruing interest upon all the unsatisfied balances of the company’s obligations given to the city as aforesaid, so long as any such balances shall remain undischarged; and that it will make and pay all the contributions required by the act of March 3, 1868, to bo made to the new sinking fund established by that act; and in case of default in either of these engagements, the city shall he at liberty to terminate the extension hereby granted, and may resort to its legal remedies, provided and existing under the acts of 1848 and 1850, for enforcement of the company's obligations aforesaid.</p> <p>"III. And inasmuch as it is understood by the parties, that the city will be obliged to issue its new bonds to an amount equal to the unsatisfied balances of the company’s obligations aforesaid for the purpose of raising money, to discharge si corresponding balance of its prior bonds issued under the fusts of 1848 and 1850, the railroad company, in consideration of the extension hereinbefore agreed to be given, engages that it will pay to the city all the cost of preparing and issuing such new bonds, and of negotiating the same, and will make up to the-city any loss that may be sustained by discount, in negotiating the same. And the city engages that it will offer to the railroad company the option of procuring the negotiation of the same at seasonable times and at the most favorable rates to be ■obtained in the market.</p> <p>"IY. All the sums, which shall be applied by the commissioners of the sinking funds, under the acts of 1848 and 1850, towards the redemption of the bonds issued under these acts, shall be a discharge of so much of the railroad company’s obligations aforesaid, and shall be appropriately indorsed thereon.</p> <p>"V. And the parties to this instrument further agree, that their intention is, to provide for the ultimate performance and payment of all the balances of the company’s obligations aforesaid, in the manner which shall be least burdensome and most advantageous to the parties, but without pecuniary loss or detriment to the city, in any event, and without diminishing or ■impairing any security held by the city; and that, in case of any want of authority in the commissioners of the sinking funds under the acts of 1848 and 1850, to apply these funds ■ in the manner now contemplated and expressed in this instrument, or, in case of any other legal difficulty or impediment in ■effecting the object and intent of the parties, by the particular arrangements, now made therefor, they will negotiate further thereon, and will use all their reasonable and lawful endeavors, ■and enter into all such further proceedings and agreements, as ■may be necessary and deemed adequate to accomplish the true •intent, meaning and object of this agreement, as hereinbefore declared. In witness whereof, this agreement is subscribed in behalf of the city, by Jacob McLollan, mayor, duly authorized by a vote of the city council, passed on the seventeenth day of September, 1868, and in behalf of the railroad company by St. John Smith, president, duly authorized by a vote of the directors passed on the twenty-second day of October, 1868, and the ■said parties have hereto affixed their respective seals, this thirty-first day of October, in the year of our Lord one thousand eight .'hundred and sixty-eight.” Duly signed, etc.</p> <p>Other material facts are stated in the opinion.</p> <p>Plaintiff complains only of non-payment of interest on May 2 ; this suit to collect it.</p> <p>Now, in what part of agreement did defendant covenant to pay interest on May 2, 1881, or on May 2, in any year? If it is said that the interest on the new bonds issued by city became due and payable on May 2, no such evidence in case. And if there were, there is nothing in agreement about paying interest on new bonds. The defendant agreed to pay interest on its debt semi-annually,— on such day within every six months as it might elect.</p> <p>Unless defendant was bound to pay on May 2, this action cannot be maintained.</p> <p>Object and spirit of the act and agreement is, not to keep a claim and a liability alive and kicking for eighteen years, but to provide some collateral security for its payment as soon as possible. Nothing in the act or in agreement to prevent the company paying the debt at any time. Agreement fixes no particular time of payment: places no restriction upon time of payment; says nothing upon the subject; but act says, (section 6) — The fact (if it be a fact), that city hired money for eighteen years in connection with this matter, has no relevancy to this legal question. City hired upon such time as it pleased. Suppose city had hired it for one hundred years. We submit that defendant bad a right to pay its debt to plaintiff at any time, — and as collateral to that debt, and as security for it, to pay at any time any amount it pleased into the sinking-fund.</p> <p>And having made the sinking fund equal to the debt, and having caused the amount to be tendered to the city, we have fully discharged our indebtedness.</p>

<p>ON BILL IN KQUITY.</p> <p>Heard on bill, answer and proof.</p> <p>The material facts are stated in the opinion.</p>

ON REPORT. This was an action of the case against the defendant as sheriff for the,alleged misdoings of his deputy, in mating a false return of a levy. The writ was dated May 28, 1880, and the plea was not guilty. The facts are stated in the opinion.

<p> Indictment. Nuisance. Sewers. </p> <p>A municipal corporation is liable to an indictment if they so construct their public sewers that the outfalls thereof create a public nuisance, noisome, and prejudicial to the public health, provided the accumulations of filth thence proceeding are not promptly removed.</p> <p>It is not necessary in such an indictment to allege negligence in the adoption of the plan of their sewerage system or careless execution of the same. And it is no sufficient legal answer in such case that they exercised their best judgment, and proceeded with reasonable care in adopting their sewerage system and constructing their sewers.</p>

ON EXCEPTIONS. Assumpsit to recover three hundred seventy-two dollars and seventy-two cents, for a car load of corn. The writ was dated March 30, 1881. The plea was general issue, with brief statement setting out that the claim sued had been heard and determined by referees. The facts appear in the opinion. The court erred in admitting oral testimony as to what was submitted to and considered by the referees.

Pill IN equity brought to obtain a construction of the will of Jones P. Yeazie, who died at Bangor, Pebuary 16, 1875,, ¡leaving a widow and six children, three of whom were minors. The widow, Susan T.. Yeazie, died April 16, 1882, while ¡the youngest child is only seven, years of age. The will provides as'follows : Ninth.

On exceptions. Debt under stat. 1874, c. 232, to recover taxes assessed in the town of Oldtown, in 1880, to the defendant, a resident of Bangor, on property described in the list of assessments of said town, for that year, as follows : Description. Acres. Value. Dol. Cts.

<p>Married woman, action by. Divorce. Stat. 1876, c. 112.</p> <p>Stat. 1876, c. 112, does not so far modify tlie common law as to authorize a civil action by tlie wife against tlie husband to recover damages for an assault, nor against those who act with the husband and under his directions in doing such a wrong. Nor does such right of action arise upon divorce.</p>

On report, on motion for new trial. Assumpsit, to recover fifty dollars for board of workmen in mill, operated by the defendants, George W. Horn, Noah Gould and Joseph D. Sawyer. Gould and Sawyer submitted to a default before the trial. The plaintiff was unable to attend court at the time of the trial on account of her sickness. The defendant, Horn, defended on the ground that he had withdrawn from the defendant firm before the bill in suit was contracted.

i©N REPORT. Writ-of entry, dated February 12, 1881. The plaintiff’s title 'depended upon the validity of an attachment upon a writ which «contained but one count, and that was upon an account annexed .as follows: '1877. John McGrugin, In acc’t with J. C. Bartlett. .Feb. 1, . Balance as per s’t’lement, 2123 54 3., Pd note at Cobb. Nat.

On exceptions and report from the superior court. Assumpsit for cause stated in the opening of the opinion. ‘The writ was dated May 20, 1881. Plea, general issue with ¡brief statement. The following are the exceptions, and so much of the evidence and charge, as are referred to in the exceptions. To the following rulings, admissions of testimony against the objection of defendants’ counsel, instructions and refusual to instruct, the defendants except. 1.

<p> Contract. Practice. Exceptions. </p> <p>The defendant on the sixth of April, 1876, at New York, contracted with II. W. IT. to sell him ten thousand tons of river ice of a certain description, deliverable at a specified time and place and price, H. W. E. to pay by accepting sight drafts on terms set forth in their contract. On the fifteenth of May, following, the plaintiffs at Gardiner, signed on the back of the defendant’s contract with II. W. E. the following agreement: “We, the undersigned, hereby agree to furnish A. Rich, Jr. three thousand tons of ice, (3000 tons), per the within contract.” Held-,</p> <p>1. That Ihis agreement was with the defendant, and H. W. E. was no party to it.</p> <p>2. That by the terms “per the within contract,” the defendant’s agreement with II. W. E. was so far incorporated in his contract with the plaintiff's, as to designate the quality of the ice, when and where deliverable and the price.</p> <p>3. If the plaintiff's delivered ice to the defendant under this written contract signed by them, the title to the property passes to the defendant, and an obligation arises on his part to perform the terms and stipulations of tire contract.</p> <p>When one agrees in writing- to deliver to another a chattel at a price and time, and in a manner specified, and the other party, though not signing the contract, takes it and claims execution of it on the part of the party signing- it, he must be held as receiving it according to the terms of the written contract.</p> <p>If the court errs in stating- the grounds of the defence, it is for the counsel to correct such misapprehension, and a subsequent correction removes all grounds for complaint.</p> <p>A party excepting must show affirmatively that an erroneous instruction was given or a proper request refused. It is not enough to show that possibly more full and accurate instructions might have been given, no request having-been made for them.</p> <p>Exceptions will not be allowed for an inaccurate or erroneous statement of tlie testimony of a witness. The attention of the court should be called to the matter at the time.</p>

<p>Bill in equity.</p> <p>Heard on bill, answers and proofs.</p> <p>The case and material facts are stated in the opinion.</p>

ÜN exceptions from superior court. An action of the case, for injury to a stock of goods by overflow of water from a bowl set in an upper story. The writ was dated October 2, 1880, and the plea was the general issue. The case was tried without a jury by the presiding justice, who found the following facts.

On exceptions. An appeal from the decision of the county commissioners of Franklin and Somerset counties, locating a highway in said counties. At the appellate court the petitioners for the way appeared and moved that the appeal be dismissed. The court proforma overruled the motion to dismiss, and the respondents alleged exceptions. contended that the material change in the statutes relating to ways since the opinion in Banks v. Go.

ON report on agreed statement of facts from superior court. Debt on poor debtor’s bond. The writ was dated December 9, 1881, and returnable to the municipal court of Portland, and taken to the superior court on appeal by the plaintiffs. The plea was general issue with brief statement alleging performance. The opinion states the material facts.

On report on agreed statement of facts. Trover by the assignee in insolvency of Ebenezer Gr. Delano, to recover the value of a stock of goods. By the agreed statement it appears that Harlan P. Cobb and Ebenezer Gr.

ON EXCEPTIONS. Assumpsit to recover upon accounts as due from the firm of M. Emery and Company. The firm consisted of Marcellus Emery and Millard E. Mudgett, and continued till 1879, when Emery died and the defendant was appointed administrator on his estate.

<p> Deed. Bélease. </p> <p>"When tie owner of land releases, Ms right, title and interest to another, his subsequent deed of release to a third person conveys no title; and if the latter be recorded before the former, the former will .still hold the title as against the subsequent release.</p>

<p>On report on agreed statement of facts.</p> <p>Assumpsit. Writ, dated August 21, 1880.</p> <p>Plea, general issue and statute of limitations.</p> <p>The facts are stated in the opinion.</p> <p>cited: Gilman v. Patten, 70 Maine, 183; Biggs v. Lee, 61 Maine, 499 ; Ilosmer v. Clarke, 2 Maine, 308 ; 9 Pick. 490 ; 1 Sumner, 478; 3 Pars. Contr. 92, 93; Hill on Trustees, 375, 64, 264; Lee v. Lanahan, 59 Maine, 478 ; 60 Maine, 158; Perry on Trusts, § § 850, 24, 42, 45, 30; 63 Maine, 404; 3 Bac. Abr. 510; Ang. Lim. 166, 168.</p> <p>The demand in this case was not made within a reasonable time. Some nine or ten years elapsed after receipt of the money, before demand was made.</p> <p>This demand must be made in a reasonable time,— six years. Oodman v. Bogers, 10 Pick. 112. This doctrine is recognized in Lee v. Lanahan, 59 Maine, 478. Gilman y. Patten, 70 Maine, 183, differs very materially from the case. There the demand was made, and the defendants notified of the claim within a year.</p>

ON EXCEPTIONS. The only question presented by the exceptions, arises from the disclosure of the inhabitants of Phillips made by the chairman of their selectmen and attorney. The facts disclosed are stated in the opinion. The letter from Anthony Brackett is not evidence and if it was it is dated July 2, 1881, nearly nine months after the writ was served on the trustees and it does not say to whom he paid nor when lie paid.

On exceptions and report. - An action under R. S., c. 113, § 51, for aiding a debtor to hinder, delay and defraud his creditors by taking of him a fraudulent conveyance of his property. The writ is dated November 18, 1880. .Plea, not guilty. The facts appear in the opinion. The request which the court gave was a proper one.

On report. Assumpsit upon the following note. $160.00. — No. 309. Monmouth, Oct. 26, 1876.” For value received as treasurer of the .town of Monmouth, I promise to pay D. M. Ross or order, one hundred and sixty dollars in one year from date, with interest.” Wm. Gr. Brown, treasurer.” The writ was dated August 30,1878, and the plea was general issue.

<p> Practice, criminal law. Pleadings. </p> <p>A motion in arrest of judgment is not the proper remedy for a wrong verdict. It should he a motion to have the verdict set aside and a new trial granted.</p> <p>A motion in arrest of judgment is not the proper remedy for an illegal admission of evidence. The remedy for such an error is a hill of exceptions.</p>

On exceptions. An action of the case brought by the surviving partners of the ■firm of Blake, Jones and Company, to recover damages for ■unreasonable delay in the transportation of several lots of flour, ¡amounting in all to four thousand two hundred and twelve barrels, ¡shipped over the defendants’ road in the fall of 1866. Of this ■quantity twelve hundred barrels arrived at destination'subsequent to December 24, 1866. The writ was dated December 24, 1872.

Bill in equity. Heard on bill, answer and proof. The bill was brought by the administrator of Ebenezer Jordan, deceased, against Charles J. Cheney, Henry W. Oakes, assignee in insolvency of Charles P. Jordan, Junior, and John-Smith, and after stating the facts, the material parts of which are disclosed by the opinion, (Charles P. Jordan, Junior, was the mortgagee, who transferred and delivered the mortgage notes to the complainant, and John Smith was the mortgagor in the…

On report. Assumpsit upon a receipt given by the defendants to the plaintiff, a deputy sheriff, for property attached by him. Plea, general issue and brief statement denying that any judgment had been rendered. (Receipt.) Somerset, ss. — December 4th, A. D. 1875.

<p>Constable. Bond. M. 8., c. 80, § 43.</p> <p>The cleric of a city is an officer to whom the bond of a constable required by R. S., c. 80, § 43, may in the first instance be properly delivered.</p> <p>The penalty imposed by R. S., c. 80, § 43, is not incurred if a constable serves a writ after the delivery of his bond though before it is approved.</p>

On exceptions from the superior court. This was an action of assumpsit, commenced March 8, 1880, and tried by the justice without the intervention of a jury, at the September term, 1880, subject to exceptions in matters of law. Plea, the general issue. For several years prior to January 17, 1879, the plaintiff and defendant were partners engaged in the boot and shoe business in the city of Portland.

ON REPORT on agreed statement. Debt under stat. 1880, c. 249, §4, to recover one-balf the tax assessed by the Governor and Council against the defendant corporation, for the year 1880, which fell due July 1, 1880, and amounted to eleven thousand dollars — the whole tax being' twenty-two thousand dollars. ’ The report stated : The defendant denies the legality of said tax on the sole ground that the said act is in contravention of the constitution of the state.” If the act is…

ON REPORT*. An appeal from the judgment of the Lewiston municipal court upon an action of assumpsit on the following note : Exeter, N. H. November 8, 1868. For value received, in'Policy No. 13,169, dated the 8th (Signed) Moody and Chamberlain.’7 The opinion states the material facts.

<p>ON REPORT.</p> <p>Complaint for flowage inserted in a writ dated April 29, 1880..-At the trial the defendant relied upon the following agreement of reference and award of the referees thereon, marked AandB.</p> <p>"A. — -Knowall men by these presents, that we, Ivory Littlefield and James Smith, both of Kennchunk, in the county of York, and state of Maine, have agreed to submit the demand made by the said Littlefield against the said Smith for the flowage of land by reason of a mill and dam built by said Smith on Alewive ibrook in said Kennebunk, and the yearly damage, if any, hitherto sustained so far as recoverable, and the yearly damage, if any, which may.be sustained in future years on the part of ¡said Littlefield, his heirs and assigns, as owners of land flowed by .reason of said mill and dam, and whether said Smith shall be ¡allowed flash or flush boards upon said dam as heretofore used, •to be taken off from May 1 to November 15, annually — the compensation or damage, if any, to be an annual sum, and any other • questions connected therewith, to the determination of William H. Deering of Saco, Woodbury Goodwin of Kennebunk, and John B. Maling of Kennebunkport — and the decision of said referees or a majority of them shall be final.</p> <p>" And if either party neglects to appear before the referees ¡after proper notice given to him of the time and place appointed ffor the hearing, they shall proceed in his absence.</p> <p>"Dated this twenty-eighth day of October, A. D. 1879.</p> <p>Witness, William Allen, Ivory Littlefield.</p> <p>Justice of the Peace. James Smith.”</p> <p>"_ZJ. — We, the'undersigned, together with Wm. H. Deering -of Saco, being authorized by the annexed agreement of submission entered into by Ivory Littlefield of the one part, and James Smith of fhe other part, having notified and met the parties and •heard their several allegations, proofs and arguments, and duly considered the same, *do determine and award that the above-named Ivory Littlefield, his heirs and assigns, shall recover of ■the said James Smith, his heirs and assigns, in full of all damages up to date of said agreement, the sum of twenty-seven dollars ($27.00) and that said Smith, his heirs and assigns, shall pay to said Littlefield, his heirs and' assigns, the sum of nine dollars ($9.00) per annum, reckoned from the date of said ¡agreement, so long as the land shall be flowed by reason of the •dam and mill mentioned in said ageement, the said Smith, his heirs and assigns to have the right to maintain oflush boards on said dam as he has hitherto done, from November 15 to May 1, of each year in the future, the said William H. Deering not agreeing to this award. The said Smith shall also put the road crossing the mill pond above said mill in repair to the acceptance of Woodbury Goodwin.</p> <p>Woodbury Goodwin.</p> <p>John B. Mating.”</p> <p>A claim for damages for flowage is proper subject of arbitration. Gordon v. Tucker, 6 Maine, 253 ; Duren v. Getchell, 55 Maine, 241; Quinn v. Besse, 64Maine, 366.</p> <p>And an arbitration is a bar to an action. B. S., c. 92, § 7.</p> <p>This was a common law reference and cannot be avoided except for corruption, gross partiality or evident excess of power. Tyler v. Dyer, 13 Maine, 47. See Wallis v. Carpenter, 13 Allen, 19 ; Ada,ms v. McFarlane, 65 Maine, 143.</p> <p>It is unnecessary to prove a tender of performance of an award. Duren v Getchell, 55 Maine, 241.</p> <p>The award as to repair of the road was beyond the authority of the arbitrators and so much of their award was void. Day v. Hooper, 51 Maine, 181; Porter v. Buckfteld, 32 Maine, 539 ; Merrill v. Gardiner, 40 Maine, 232.</p> <p>Of course it was not necessary to perform or tender performance of that part of the award which was bad.</p> <p>The parol agreement as to future damages and use enlarged the powers of referees and was binding. Vide, Snow v. Moses, 53 Maine, 546; Clement v. Durgin, 5 Maine, 9; Seymour v. Carter, 2 Met. 520; Smith v. Govlding, 6 Cush. 154; Cobb v. Fisher, 121 Mass. 169. ,</p>

<p> Partnership. Pire insurance. </p> <p>Where insurance against loss hy fire is effected by a member of a firm in the firm’s name, upon property of the firm, and the premium therefor is paid for from faiitlrf of tlie Srm, tliougli charged by such member to himself, the insurance will be for the benefit of the firm notwithstanding the member Urns effecting it intends it for his own private bcneiifc.</p>

On exceptions and report. Assumpsit on an alleged contract, of October 26, 1873. Tbe writ was dated December 20, 1881. Plea, general issue and statute of limitations.

ON REPORT'on agreed statement of facts. An appeal from the decree of the judge of probate in the estate of Abner Chapman. The appellants, Henry Dunlap, Charles R. Dunlap, Betsey C. Brown and A. D. Manson, petitioned to the judge of probate that the sum of two thousand one hundred dollars and eighty-six cents be distributed among the heirs at law, alleging that it was not specifically bequeathed by the will of said Abner Chapman.

<p>On REPORT.</p> <p>Trespass. Writ dated January 19, 1881.</p> <p>Plea, general issue with brief statement.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>With no regard to the plaintiff’s requisition upon him to have recourse to what was due on account of the town tax toward the liquidation of the one in question, Winchell selected trespass to accomplish what he lawfully might have clone by following the plaintiff’s instructions. Orneville v. Pearson, 61 Maine, 552; Franlcfort v. White, 41 Maine, 537 ; Smyth et. al. v. Titcomb, 31 Maine, 272. " Trespass lies against him who does the trespass and all aiding, for there is no accessory, but all are principals in trespass : — it lies against each severally, for it is joint and several in its nature; ” Comyn’s Digest, title Trespass* 392 ; Chitty PL 86, 95 ; Waterman on Trespass, § § 23, 24, 56 ; Burroughs on Taxation, 260 ; Allen v. Archer, 49 Maine, 346. We have therefore selected Mr. Winchell as the only mover in this trespass, and leave him to he fortified by school ag-ents in such manner as they may choose to help him in his unlawful doings. Gorham v. Hall, 57 Maine, 58 ; Pearson v. Oanney, 64 Maine* 188 ; Burroughs on Taxation, 264, 266, 267 ; R. S., c. 11, § 46 5 Brunswick v. Snow, 73 Maine, 177; Adams v. McGlinehy, 66 Maine, 474'; 2 Greenl. Ev. § 302.</p> <p>On tbe question of damages we ask leave to cite : Waterman on Trespass, § § 438, 445, 446, 509, 619, and notef at bottom of page 636, and § § 620, 621 and 624; Hobart v. Hagc/el, 12 Maine, 67 ; 6 Comyn’s Digest, 395 ; Woodbridge v. Oonnor, 49 Maine, 353; Bucknam v. Nash, 12 Maine, 474.</p> <p>We cite the foregoing authorities, because they exclude that doctrine which allows to trespassers a rebate in the form of what they realize as a fruit of their trespass, whether for themselves or others whom they may profess to serve; also because it follows the Christian command, " You must not rob Peter to pay' Paul.”</p> <p>" Tax collectors have always been held to the same measure of liability as sheriffs and constables.” As to what that liability is, we cite the following authorities. Blanchard v. Dow, 32 Maine, 557 ; Boss v. JPhilbrick, 39 Maine, 29 ; Knight v. Herrin, 48 Maine, 533; Sawyer v. Wilson, 61 Maine, 529 ; Massey v. Gaboon, 34 Maine, 74; Farnsworth Go. v. Band, 65 Maine, 19 ; Hannewell v. Hobart, 42 Maine, 565 ; Everett v. Herrin, 48 Maine, 537; Moore v. Pennell, 52 Maine, 162; Guptill v. Bichardson, 62 Maine, 257; Garpenter v. Dresser, 72 Maine, 377 ; Wallis v. Truesdell, 6 Pick. 455;; Me Gough v. Wellington, 6 Allen, 505 ; Brannin v. Johnson, 19 Maine, 361; Pur-rington v. Boring, 7 Mass. 388; Allen v. Hall, 5 Met. 263.</p> <p>cited: Waldron v. Lee, 5 Pick. 323 ; 55 Maine, 501; 6 Gray, 387 ; 13 Mass. 283 ; 40 Maine, 526; 7 Gray, 128; 99 Mass. 472; 62 Maine, 459; 19 Pick. 436 ; 113 Mass. 40 ; 20 Maine, 199 ; 1 Met. 328 ; 48 Maine, 386 ; 8 Met. 102 ; 17 Maine, 444; 5 Allen, 563 ; 61 Maine, 400; 21 Am. Dec. 181 and n., and numerous other authorities.</p>

<p> Will. </p> <p>A later clause in a will controls a preceding' clause.</p>

<p> Trover. Pleadings. Amendment. </p> <p>Trover is an action of the case and may be joined with case. When the action is origihally trover new counts in case may be added by way of amendment.</p>

On exceptions. Debt on bond of Daniel P. Hobert and Joel llobert to Louis Voter, treasurer of the town of Farmington,” plated March 10, 1873. The writ was dated April 18, 1878. The presiding justice ruled that the action could not be maintained and ordered that a nonsuit be entered, and the plaintiffs alleged exceptions.

ON REPORT. Replevin of a sorrel mare. Writ dated May 3, 1880. Plea, general issue, with brief statement claiming- property in the defendant. The opinion states the facts.

■ON report on motion to set aside the verdict. Trespass qu. cl. Writ was dated November 6, 1879. Plea, /general issue, and brief statement alleging that the acts complained of were committed, if at all, upon a narrow strip of land to which each party claimed title, the controversy growing out of ■■the location of the dividing line. The opinion states the material facts.

On report. These two actions were for one and the same cause, being for .an alleged injury suffered by the plaintiff to his woodland in JMattawamkeag, from fire communicated by a locomotive engine, accidentally, while passing along its track across his land. No malfeasance or fraud is alleged or suggested on the part of any one. The first named action was commenced and writ dated December 2, 1880 ; the last named on October 21, 1881.

ON EKPOKT. Trespass qu. cl. and catting and carrying off the plaintiff’s grass and bay. The writ was dated December 13, 1880. Plea, general issue and brief statement alleging title in Everett S.-Wright and that defendant was his tenant. The question presented was, who was the owner of the flats from'which the hay was cut? Each party claimed that such flats were embraced within the description in their respective deeds.

<p>ON report on agreed statement.</p> <p>The plaintiff brings this bill as administratrix on the estate of George A. Fletcher against the Somerset Railroad Company, John Ware and Fred A. Coolidge.</p> <p>The bill sets out that the complainant as administratrix recovered judgment against the railroad company October 18, 1881, for one thousand two hundred and one dollars damages, and forty-eight dollars and nine cents costs of suit, and November 11, 1881, she caused the same to be levied on certain l’eal estate of the company in Anson — a real estate attachment having been made on the original writ February 17, 1876.</p> <p>That S. C. Mills and Company caused to be made a real estate attachment in an action in their favor, against the same railroad company January 26,1876,and recovered judgment in that action against the company for two thousand eight hundred fifty-six dollars and sixty-seven cents damages, and .thirty-nine dollars and three cents costs of suit, and caused the same to be levied by Fred A. Coolidge, one of the defendants, who was a deputy sheriff, upon the same real estate upon which the complainant’s levy was subsequently made as above stated. That S. C. Mills and Company, July 12, 1881, conveyed their interest in the land levied upon to John Ayer, another of the defendants. That James J. Parlin and Sherman W. Hapgood, two of the appraisers at the time of ■the levy of the judgment of S. C. Mills and Company, were at the time inhabitants of the town of Anson, and that town was at: the same time a stockholder in The Somerset Railroad Company.. And the bill prayed that Coolidge be required to amend his. return of the levy of the judgment of S. C. Mills and Company, in accordance with the facts ; that the levy be declared void and that Ayer be required to release to the complainant in order’ to remove the cloud from her title.</p> <p>The statute requires appraisers to be disinterested men. Were' Parlin and Hapgood disinterested ?</p> <p>In a case in Massachusetts, Boston v. Tileston, 11 Mass. 468,. the court say,</p> <p>"As it is to be presumed in this case that the officer who served, the execution returned that the appraisers were disinterested freeholders, perhaps on a trial between the parties that fact would not be traversable. But here the parties have agreed: that the appraisers were inhabitants of the town of Boston. As. such they were parties to the suit in which the execution issued, and as such they were certainly not disinterested. The statute referred to by the counsel for the demandants has removed the1 objection of incompetency as witnesses from corporators, which shows that they were not competent at common law. But it would be going far beyond the plain and apparent intent of the-legislature to extend that provision to the case of appraisers on the extent of executions.”</p> <p>in JSforridgewock v. Sawtelle, 72 Maine, 486, the court held that a justice of the peace, chosen by the officer to hear a poor-debtor’s disclosure, who resided in the town of Norridgewock,, was not disinterested.</p> <p>No juror can sit in a case where his town is interested. Hawes■ v. Gustin, 2 Allen, 403.</p> <p>No judge is allowed to sit in the trial of an action in which the-county or town in which he resides is a party or interested. R. S., c. 82, § 29 ; Pearce v. Atwood, 13 Mass. 324.</p>

O.N report on agreed statement. Assumpsit for pauper supplies furnished one Benton L. Blackwell”, amounting to two hundred fifty dollars and-twenty-cents. The writ was dated August 12, 1881. The opinion states the material facts. cited ; York v. Penobscot,. 2 Maine, 1; JEmhden v. Augusta, 12 Mass. 307 : Shutesbury v. Oxford, 16 Mass. 102.

On report from the superior court. Assumpsit upon the following' contract r Contract for Sweet Corn Season of 1881.

Ox EXCEPTIONS from superior court. Assumpsit on three promissory notes, dated April 26, 1878. Writ was dated January 23,1880. Plea, discharge in insolvency. The presiding justice hold that the discharge in insolvency relieved the defendant from liability on the notes in suit, and the plaintiff alleged exceptions. The insolvent law of 1878 was in violation of Constitution of U. S. Art. 1, § 8; Sturgis v. Growninshield, 4 Wheat. 122; Baldwin v. Hall, 1 Wall. 223.

<p>ON EXCEPTIONS from the superior court.</p> <p>These two actions depending upon the same facts were replevin •for certain sides of unfinished leather. The plaintiffs claim title ;as finders.</p> <p>The facts are stated in the opinion.</p> <p>There can be no doubt that the hides were placed in the vats by some one forty or fifty years a go, for the purpose of tanning, and with the intention to take them out when sufficiently tanned. Two vats were discovered by Livermore, and one by Richardson.</p> <p>There is no evidence that there was a person living, ¡at the time of the discovery, who knew of the existence of this leather. The defendant claims no title only the right of possession.</p> <p>The instruction of the presiding judge in relation to abandoned property was too restricted. It was confined to property designedly abandoned with the intention at the time of parting with it. We say that abandonment might have occurred after the hides were in the vats, and the fact that no one had called for them for forty-three years was evidence from which a jury might have inferred such an abandonment. But the instruction took this consideration entirely from the jury.</p> <p>In-the case of McLaughlin v. Waite, 5 Wend. 405, the court say, "If chattels are found secreted in the earth or elsewhere, if the owner cannot be found, he is presumed to be dead, and that the secret died with him. In such cases the property belongs to the sovereign.” In this case the property was found in the earth. We prove that the person whom defendant says was the owner, to be dead. The property then "belongs to the sovereign.” That is, the people; and R. 8., c. 98, § § 10 to 14, provides for its disposition.</p> <p>The rules of law applicable to treasure trove apply to this property. See Dane’s Abr. c. 76, art. 7.</p> <p>This case differs from those where chattels are laid down and carelessly overlooked, and left by the owner on the desk of a banker, the table of a barber, the counter of a tradesman, the seat of a coach or car, where they have been regarded as left in the custody of the banker, barber, tradesman, coachman or conductor. See Wells, Replevin, § § 116, 117 ; 11 R. I. 588 ; 21 Ala. 240; 14 Johns. 293; 116 Mass. 42; 17' Wend. 460; 6 Phila. 18.</p> <p>The owner of the soil is not the legal custodian of the property found within it. Such a rule would be directly in conflict with the long settled principles of law applicable to treasure trove. 2 Kent’s Com. 356, 360; Dane’s Abr. § 516; 1 Bl. Com. 295 ; 1 Met. 112; 7 E. Law and Eq. 424.</p> <p>cited *, Bouvier’s L. Diet. "Treasurer trove”; 1 Bl. Com. *'295 ; 20 Yin. Abr. 414; 7 Com. Dig. 649; Laioerence v.. State, 1 Humph. 228 ( 34 Am. Dec. 644) ; Ilamalcer v. Blanchard, 90 Penn. St. 377, (35 Am. Rep. 664) ; State v. M'cCaim, 19 Mo. 249; Tancil v. Seaton, 28 Gratt. 601, (26' Amu Rep. 380) ; Haslem v. Lockwood, 37 Conn. 500; Regina v. Beters; Amory Delamivie, 1 Strange, 505; Bridges v. Uanjkesworth, 7 Eng. L. and Eq. 424; Bowen v. Sullivan, 62 Ind. 281, (30 Am. Rep. 172) ; Lawerence v. Buck, 62 Maine, 275; MoAvoy v. Medina, 11 Allen, 548; Kincaid v. Eaton, 98 Mass. 139 ; Regina v. Rowe, Bell’s C. C. 73; Barker v. Bates, 13 Pick. 255; 12 Am. Law Kev. 706; 2 Kent’s Com. 357.</p>

<p>ON REPORT.</p> <p>Debt on bond. Writ dated May 3, 1880.</p> <p>The opinion states the case and material facts.</p> <p>The defendant had his election to construct the drain or pay five hundred dollars.</p> <p>Such a covenant the courts have no equitable ground for rescinding or disturbing, as will appear from the following citations : Gammon v. Howe, 14 Maine, 250; Gowen v. Gerrish, 15 Maine, 273 ; Dwinel v. Brown, 54 Maine, 468.</p> <p>(In Oaswell v. Johnson, 58 Maine, 164, a majority of the court, it is true, decide that the sum named in the bond is a penalty; but this case may be easily distinguishable from the one at bar, inasmuch as it is not difficult to determine the damages where a breach of the bond may consist in the sale at retail of a few oysters.) Holbrook v. Tobey, 66 Maine, 410, and cases cited and digested in the able opinion of the court. Chamberlain v. Bagley, 11 N. H. 234; Brewster v. Bdgerly, 13 N. H. 275 ; Mead v. TWheeler, 13 N. H. 351; White v. Dingley, 4 Mass. 433; Curtis v. Brewer, ■ 17 Pick. 513; Hodges v. King, 7 Met. 583; • Chase v. Allen, 13 Gray, 42; Lynde v. Thompson, 2 Allen, 456; Leary v. Laflin, 101 Mass. 334; Tingley v. Cutler, 7 Conn. 291; Slosson v. Beadle, 7 Johns. 72; Pearson v. Williams, 26 Wend. 630; Bagley v. Peddie, 16 N. Y. 469 ; Cotheal v. Talmage, 5 Selden, 551; Streeper v. Williams. 48 Penn. St. 450; Williams v. Green, 14 Ark. 315 ; Watts v. Sheppard, 2 Ala. 425 ; Burst v. Swift, 11 Tex. 273 ; Harris v. Miller, 6 Sawyer, C. C. (Or.) 319; Huband v. Grattan, 1 Alcock and Napier, 389 ; Fletcher v. Byche, 2 T. E. 32; Wafer v. Mocato, 9 Mod. 113 ; Boxeé v. Beers, 4 Burr. 2225; 2 Greenl. Ev. § 259; Am. Law Eeview, January, 1878, p. 286.</p>

On report. Assumpsit on account annexed for services' for teaching ’school in school district number six in the defendant town, ten weeks, at twenty-two dollars per month, fifty-five dollars. The bill annexed to writ was dated January 28, 1882 ; the writ, March 14, 1882. Plea, general issue. The opinion states the material facts.

ON REPORT. Eeal action to obtain possession of certain premises in Smith-field. Writ dated August 2, 1880. Plea, mil disseizin. The demandant claimed title to one-quarter part of the premises, which were the property of Thomas J. Decker at the time of his death, as an heir at law to said deceased. The defendant claimed title under the deed of the administrator on the estate of said deceased. The opinion states the material facts.

'On exceptions from the superior court. The fact that a poor debtor has filed a, petition in insolvency -does not relieve him from having the property appraised and a written assignment thereof deposited with the magistrates, so that whatever title there may be in the debtor may enure to the benefit of the creditor.

On exceptions from superior court. Assumpsit on a bank chock drawn by the defendant for two 'hundred and sixty seven dollars, on the National Traders Bank ■of Portland, and payable to the order of one H. Rosenburg, and •by said Rosenburg indorsed in blank. The writ was dated October 11, 1880. The verdict was for two hundred eighty-four dollars and .seventy three cents. The material facts are sufficiently stated in the opinion.

ON EXCEPTIONS. Trespass qu. cl. The writ was dated May 21, 1879. Each party claimed title to the locus in quo. Plaintiffs put into the case a deed of William Morse to defendant.

ON EXCEPTIONS. Assumpsit for failure to deliver ice called for by the following and one other similar contract: James B. Drake, Ship and Insurance Broker, Granite Block, Front Street, Bath, Me., Jan. 22, 1880. Sold to J. B.. Warner, three thousand tons of ice, more or less, enough to load two ships, at $1.50 per ton, f. o. b. packed suitably for shipment to New Orleans. Said ice to be taken on or before November first, eighteen hundred and eighty.

<p>On exceptions from superior court.</p> <p>Assumpsit on a promissory note payable to " the treasurer of the India Street Universalist Society, or order.” The writ was dated July 14, 1881. McDonald was then the treasurer of the society, but was not the treasurer at the time the note was given. Plea, general issue. The opinion states other facts.</p> <p>cited: Stone v. Hubbard, 7 Cush. 595 ; Hodges v. Holland, 19 Pick. 43.; . Titcomb v. Thomas, 5 Maine, 282; JRockwood v. Brown, 1 Gray, 261; Penobscot It. It. Go. v. Mayo, 60 Maine, 313; Pollard v. Somerset M. F. Ins. Go. 42 Maine, 221.</p> <p>The evidence shows a promise to the society, or its order, only. The action must be in its name, or the name of the indorsee. Piggott v. Thompson, 3 Bosanquet and Pullers, 147 ; Gilmore v. Pope, 5 Mass. 491; Gom. Bank v. French, 21 Pick. 486.</p> <p>In Fisher v. Fills, 3 Pick. 321, and Painter v. Winter, 53 Maine, 348, the promise was to the treasurer by name, and to Ms successors in office.</p> <p>In Thompson v. Page, 1 Met. 565, the action was upon a special ageemcnt to pay to the treasurer to be chosen by the majority of the subscribers to stock. The promise was not to an incorporated body, but to a particular person, when selected to receive the fruit of the promise.</p> <p>The promise is negotiable. It is to the treasurer or order. When the society assigned the note it no longer»had any interest in it. The courts have authorized a suit to be in the name of the assignor to protect an equitable assignment; but, since the statute the reason fails, because the assignee may now maintain an action in his own name, and the rule is extinguished. Moreover, the assignment negotiated the note.</p> <p>There is no reason why the assignee should use the plaintiff’s name to sue, ivithout his consent. Ticonic Bank v. Bagley, 68 Maine, 252; Marshall v. Perkins, 72 Maine, 347.</p>

Ox exceptions from superior court. Tlie question presented to the court by the disclosure of the-trustee is shown by the following facts: May 15, 1871, the principal defendant and the testator as surety by their promissory note of that date promised to pay the trustee or order on demand one hundred and fifty dollars with interest at nine per cent.

On exceptions and report. Trespass under R. S., c. 30, § 1, to recover for double damages done by the defendant’s dog to the plaintiff’s sheep.

ON REPORT. Petition for the amendment of the clerk’s record of a judgment rendered at the August term, 1862. Petition filed at the September term, 1881.

<p>On exceptions.</p> <p>Trustee process.</p> <p>This case between the plaintiff and the claimant was submitted to the presiding judge with right to either party to except as to matters of law.</p> <p>After hearing, the court found and ruled as follows, to wit: "It appears by the disclosure of the alleged trustee that at the time the writ was served upon him he was indebted to the principal defendant, in the sum of thirty-two dollars and eighty cents, as wages for labor previously performed for him. I find that before the service of the plaintiff’s writ, the said principal defendant had left the demand with the claimant for collection, and had made to him a verbal assignment of the same for a valuable consideration. That subsequently to said service a written assignment was made and dated back. The date was intended to correspond with that of the verbal assignment. The assignment was never recorded. Under these facts I rule that the attachment takes precedence of the assignment, and that the trustee be charged for the sum of thirty-two dollars eighty cents, less his taxable costs.”</p> <p>And the claimant alleged exceptions.</p>

<p>ON REPORT.</p> <p>An action of the case. The writ was dated November 26, 1880. Plea, general issue with brief statement.</p> <p>The material facts upon which the opinion is based are sufficiently stated therein.</p>

ON REPORT. Bill in equity. Heard on bill, answer and proofs. The opinion states the case and material facts. The case was elaborately and ably argued by

ON EXCEPTIONS. Assumpsit against thq defendant as guarantor of a certain contract of one Benoice Loomis.

<p>Ghallenges. R. S., c. 184, § 12; c. 82, § 66; stats. 1872, c. 75; 1879, c. 90.</p> <p>At the trial of a person upon an indictment for murder, the state is entitled to five peremptory challenges.</p> <p>Stat. 1872, c. 78, was an amendment of R. S., e. 134, § 12, and although its effect was for a time suspended hy the abolition of the death penalty as a punishment for crime, it again became operative by virtue of stat. 1879, c. 90. Another effect of the stat. of 1879, was to deprive the state of the two peremptory challenges provided for in R. S., c. 82, § 66, in the trial of cases formerly capital.</p>

On report. Assumpsit for money paid, laid out and expended. The writ was dated September 12, 1881. Plea general issue. The opinion states the case and material facts. It is not necessary to show that the possession .of Doane was adverse.

ÜN REPORT. Assumpsit on two promissory notes against the defendant as administrator on the estate of Jeremiah M. Eaton. His appointment as such administrator was made in January, 1876. The writ was dated December 1, 1880.

<p>Bill in equity praying for review.</p> <p>Heard on bill, answer and proofs.</p> <p>The opinion states the ease and material facts.</p>

<p>ON bxoeptioNS, and on report on motion to set asido the verdict.</p> <p>An action to recover damages for personal injuries sustained by reason of a defect in a road in the defendant town. The writ was dated August 16, 1881. Plea, general issue.</p> <p>The defect complained of was a want of a railing alongside the way, by reason of which the plaintiff’s wagon was upset in the ditch, his horse having shied at a hole in a culvert. The accident occurred August 4, 1881.</p> <p>At the trial the presiding justice instructed the jury as follows : . . . " It will be incumbent, then, upon the plaintiff, in the first instance, having the burden of proof, to satisfy you that the highway was not safe and convenient at the point where be claims the accident happened ; and that it was not safe and convenient for the reasons and in the particulars named and specified in his notice to the town and in Ms writ which has been read to you. Secondly, it will be incumbent upon him to satisfy you that an accident happened there by reason of which he sustained an injury, and that at that time there was no want of ordinary care on his part which contributed to produce that injury; that the wagon in which he was then riding was reasonably and ordinarily safe and strong and suitable to be used in that manner and for that purpose, and that the horse was a reasonably and ordinarily kind, gentle and safe horse, and reasonably and ordinarily well broken for travel upon the public way. Or, if the carriage was not of that character, or the horse was not of that character, then that the actual condition of the wag-on or the actual character of the horse did not contribute to produce this injury.</p> <p>" Then it will be incumbent upon him to show you in the third place that the defect in the highway, if there was one, was the sole-cause of the injury to him.- In' other words, that the accident happened through the defect alone ; that no want of care on his part, as I have said, and no independent, efficient cause directly and immediately contributed to produce the injury. It will then be incumbent upon him to show that the town had actual notice of the condition of the way as it was at the time of the accident; that he, after the accident, gave the notice -within fourteen days. The statute I have read to you. I will not be more specific upon these points because there is no serious controversy in relation to them. I will speak of the plaintiff’s notice further on.</p> <p>. . . "'Now, you will perceive that the court here [the judge had read from opinion of GtRAT, C. J., in 'Stone v. Hubbardston, 100 Mass. 49,] have made a distinction which the courts in this state have not thus far made. That is, that while they uniformly adhere to the general rule, as in this state, that if any independent, efficient cause directly and immediately contributes to produce the injury, the plaintiff cannot recover ; yet, you are to consider that in connection with the fact of a cause produced by or through the character of an animal that is reasonably and ordinarily gentle and safe, and reasonably and ordinarily well broken for use up'on the public way; so that if the shying is not occasioned by any vicious habit of an animal of that kind, but that the object is of a character to startle and cause any animal of a reasonably and ordinarily well broken character to shy, then it does not preclude the plaintiff from recovering; that the two points are to be considered together; that the jury are not required to consider a cause which thus operates upon a well' broken animal, an ordinarily safe and gentle animal, as a directly, efficiently and immediately contributing cause. They are not compelled so to consider it. I, therefore, for the purposes of this trial, give you this rule with reference to the temporary covering- placed upon the hole near the easterly end of the-culvert by one of the selectmen of the town of Winslow a few hours prior to the alleg’ed accident in this case; if you find that the temporary covering placed upon that hole near the easterly end. of the culvert was placed there by one of the selectmen of the-town of Winslow, acting in the capacity of a highway surveyor im making repairs on the highway, and find that it was not such a-condition as "would render the way unsafe and inconvenient fortravel, regarded as an obstruction, and that the town did not have twenty-four hours’ actual notice, as they would not have if' it had not existed longer than a few hours, but find, nevertheless, that it was a condition, an object or a material calculated, and likely to frighten a horse ordinarily and reasonably safe and gentle and well broken for use upon the public way, and' that the plaintiff’s horse was a reasonably safe, gentle and well! broken horse for travel upon the public way, and that the horse-shied by reason of this temporary covering upon the culvert near the easterly end, and not by reason of any vicious habit of' shying, and at the moment the carriage went into the ditch om the westerly side of the highway the horse had not passed! entirely beyond the control of the driver, so that if there hack been no defect in the way he would immediately have recovered, control of the horse, then I instruct you that with the other conditions to which your attention has been called or will be called, being fulfilled, the plaintiff may recover in this action for any damages he has sustained by reason of the injury received at that point. But, if, on the other hand, the object was not of a character calculated to frighten a horse of this gentle nature which I have repeatedly named, and you find that the horse slued by-reason of his own vicious habits, then you would be authorizedto find that that was a-directly, and immediately contributing-cause which would prevent the right of the plaintiff to recover, providing it did so contribute to produce the injury.”</p> <p>To this instruction the defendants excepted, and also moved to set aside the verdict, which avrs for the plaintiff in the sum of two hundred and twenty-five dollars.</p> <p>The opinion states other material facts.</p> <p>cited : Macintosh v. Bartlett, <>37 Maine, 130 ; Bacheller v. Pinlcham, 68 Maine, 252 ; Lyman -r. Amherst, 107 Mass. 343 ; Hilliard, New Trials, 284; 97 'Mass. ~258; 101 Mass. 93; 100 Mass. 49; 114 Mass. 507; 111 IMass. 357 ; 64 Maine, 57 ; 66 Maine, 348 ; 18 Maine, 286.</p> <p>The court erred in the citation and practical adoption of Stone ■y. Ilubbardston, 100 Mass. 49, for two reasons, because the decisions of Massachusetts in this class of cases differ materially from those in our own state, and because the facts of that case were -essentially unlike the case at bar.</p> <p>In an early Vermont case, Hunt y. Pownal, 9 Vt. 411, it was ■decided that when one of the causes of an accident is a defect in 'the way and the other is one for which neither party is responsible, the town is liable.</p> <p>Massachusetts adopted this rule. Palmer y. Andover, 2 Cush. ■ 600 ; Rowell v. Lowell, 7 Gray, 100 ; Titus v. JSTorthbridge, 97 .Mass. 264.</p> <p>Maine declared it unsound. Moore y. Abbot, 32 Maine, 46 ; •Ooombs v. Topsham, 38 Maine, 204; Moulton v. Sandford, 51 'Maine, 127; Perkins v. Fayette, 68 Maine, 154; Anderson v. Bath, 42 Maine, 346.</p> <p>And the tendency of our court has been to increase rather than to relax the stringency of this established rule.</p> <p>Counsel further elaborately argued the case and contended upon the question of liability for injury when a horse becomes unmanageable, that where the unmanageableness is caused by fright at an object which in itself is a defect in the road then the town is or may be liable, but where the horse took fright at something which was not a defect, and the injury happened, then there •would be no liability on the part of the town. Qlarh v. Lebanon, ¡63 Maine, 393.</p> <p>The Massachusetts court recoguizes the doctrine in Gushing y. Bedford, 125 Mass. 526 ; Palmer v. Andover, 2 Cush. 600; Bemis v. Arlington, 114 Mass. 507, that where the momentary shying of the horse is a pure accident, for which the plaintiff is not responsible and an injury happens from a defect and this contributory shying of the horse, the town is liable.</p> <p>But that doctrine was directly repudiated in this state in the case of Moulton v. Sandford, supra.</p>

On exceptions, and on report on motion to set aside the verdict.

ON EXCEPTIONS. Assumpsit on account annexed for money had and received; viz: $1000, September 23, 1874, at Rockland, and interest, in all, $1345.33. The writ was dated June 28, 1880.

Bill in equity. Heard on bill, answer and proof. The opinion states the facts. The case was very ably and elaborately argued by John J. Perry, for the plaintiffs, and by

<p>Officer’s sale on execution. It. 8., c. 91, § 27.</p> <p>When an execution issued oil a judgment recovered under E. S., c. 91, § 27, is to he levied on a building standing on land in which the debtor lias no legal interest, the general statutory provisions governing the levy of executions on personal property should he observed.</p> <p>Generally, property sold on execution should be present at the place of sale, in order that persons desirous of purchasing may examine it; hut a barn situated in a sparsely settled place, may in the absence of any unfair practices, be sold at some convenient place in its neighborhood, especially when the sale takes place in ail inclement season of the year.</p>

On retort. Assumpsit on account annexed for a wagon, fifty dollars; interest, two dollars and twenty cents; in the account is a credit of a wagon, fifteen dollars, and cash ten dollars; leaving balance due twenty-seven dollars and twenty cents. The writ was dated August 29, 1879. Plea, general issue. The opinion states other material facts. contended that the trade between the parties was a barter trade, and one transaction — an entirety — and could not be rescinded in part.

On EXCEPTIONS. Trespass. Writ dated March 17, 1881. The exceptions state that plaintiff gave testimony tending to show that he had a conversation with defendant respecting the premises to be used by plaintiff and defendant as a landing place for wood and timber; that defendant told him that Iieed [the owner of the premises] bad offered to let him pile cord wood on the premises for shipment, at six cents a cord, that he would not give so much, and finally expressed a desire…

<p>Intoxicating liquors. Search and seizure. M. S., c. 27, § 35. Stat. 1875., c. 12.</p> <p>la a liquor seizure ease, tie proof must establish tlie seizure to have been in the town where alleged. The offense is local. If alleged to have been in Sandford,- it is a variance to show that it was in Lebanon in the same county.</p> <p>Liqhors are not to be considered as deposited and kept in a particular place, Which are captured by 'force from the respondent’s wagon while he is traveling uxDon the public way. In such case .the prosecution should not be under R. S., c. 27, § 35, but under stat. 1875, c. 42, which authorizes the seizure of liquors in transitu. The penalties in the two cases are different.</p>

<p>■On exceptions.</p> <p>An action of review.</p> <p>The plaintiff in review, filed a petition to remove the action to the circuit court of the United States, for the district of Maine, alleging that the plaintiff in review at the time of the commencement of the original action was, and ever since has been a citizen of the state of New Jersey, and that the defendant at the same time was and ever since has been a citizen of Maine; that the original action and the action of review are suits of a civil nature, in each of which the matter in dispute exceeds the sum or value of five hundred dollars exclusive of costs.</p> <p>The defendant filed the following answer to petition for removal.</p> <p>"Knox County, Supreme Judicial Court, September term, 1881; Samuel R. Jackson in review, v. Albert P. Gould.</p> <p>" The answer of the said Albert P. Gould to the petition of said Samuel R. Jackson for the removal of the above entitled action or matter, and of the original suit mentioned in said petition, wherein a review has been granted, to the Circuit Court of the United States.”</p> <p>"The said Gould contests and denies the right of removal as prayed for in said petition, and says there is no authority in law therefor, for the following reasons, to wit</p> <p>"I. The said Gould denies that the said Jackson was a citizen of the state of New Jersey on the twenty-sixth day of April, A. D. 1874, being the day on which the action of the said Gould against the said Jackson was commenced in the Supreme Judicial Court of the State of Maine for the county of Knox, as is alleged in said petition; and he says that on that day the said Jackson was and for a long time thereafterwards continued to be, a citizen of the State of Maine, and resident at Brunswick in the county of Cumberland.</p> <p>"II. Said Gould further denies the right of said Jackson to remove the cause or matter as prayed for in said petition:— Because, in the said suit of Gould against Jackson, commenced on the said twenty-sixth day of April, A. D. 1874, judgment was recovered by said Gould in the said Supreme Judicial Court of the State of Maine for the county of Knox, on the second day of April, A. D. 1879, which judgment is now remaining in said court unre-versed and unsatisfied, and that the said Jackson by his petition for a reviewthereof filed in said Supreme Judicial Court on the twenty-eighth day of August, A. D. 1879, has been granted the privilege by said court of a review of said action, and a rehearing in the same, the purpose, object and effect of which is, according to the laws, of the State of Maine, to enable the said Jackson, if he can shovr ¡good cause therefor in the law in fact, to obtain a reversal ••or reduction of said judgment; which hearing and trial for the ¡purpose aforesaid, can only be had in the said Supreme Judicial •Court, where said judgment must remain, and that all the proceedings for a review and rehearing mentioned in said petition for removal, are merely incidental to, and a graft upon, said original suit and judgment; and that said action of review is not a litigation separate and independent thereof; and that the reversal and annulling, or modification of said judgment can only be ordered by said Supreme Judicial Court by a direction tb its clerk to enter a cancellation or reduction by set-oif, upon its records; over which record and original judgment said Circuit Court would have no authority or power of reversal, ¡modification, reduction or set-off if said proceedings for a review ■should be removed thereto; and that said Circuit Court could not enter the order or judgment required by the statutes of the State of Maine, if said proceedings for review and reversal .■should be removed to that court, and said Jackson should be •successful in proving his right thereto.</p> <p>"III. Said Gould further denies that said petition ought to be granted. Because, he says, said petition was not filed before •or at the term at which said cause or matter could be first tried, ¡and before the trial thereof; and he says that that matter has been already partially tried in said Supreme Judicial Court; that said Jackson’s petition for a review was filed in said State • court on the twenty-eighth day of August, A. D. 1879, and that .a trial was had thereon in said court, at the March term thereof1 .A. D. 1880, and the same reported to the law court of said State for decision, wherein a hearing was had by said law court, ¡at its term held in the western district in July, 1880, upon which •said court rendered a subsequent decision granting the right of review upon certain conditions. And said Gould says that the writ of review, authorized by the court, under the statute? of •said state is not a new or separate action, but is simply part of the proceedings for review, and a continuation thereof, which were commenced by said Jackson in August, 1879, and that its •effect, by said statute, was simply to bring said original judg-nient and the record thereof, before said state court for rehearing, /that said court might determine whether said judgment might be reversed, or modified, and that by said statute, and by force of the laws of the state of Maine, no issue can be formed or tried upon any allegation in said writ of review, but that the trial is to proceed upon the pleadings in the original action, or such other pleadings therein as said court shall order; and he further says, that all the proceedings for review under the statutes of said state, are in the nature of a writ of error, and that their only object is the reversal or modification of the original judgment.”</p> <p>"IN. Said Gould further says that said circuit court has no jurisdiction over the matter or cause mentioned in said petition, because the said judgment recovered by Mm, wras not against the said Jackson personally, but was a judgment in rem only, and against the property attached in the original writ in said .action.</p> <p>A.. P. Gould.”</p> <p>The presiding justice granted the petition, and ordered the action removed, and the defendant alleged exceptions.</p> <p>The defendant has filed an ” answer ” to the petition for removal in the state court, in which the character of the process, by which this suit is begun, is set up in various forms, and under various aspects as an insurmountable obstacle to removal.</p> <p>He says the purpose of the writ of review is "to obtain a reversal or reduction of said (original) judgment”, that "this can only be done by direction to the clerk to enter a cancellation or reduction by set-off” on the record of the state court, and that this, the circuit court has no right to do.</p> <p>Such is not the purpose of the writ as stated in the usual form of declaration. It is for the "recovering back of said sum,” wThich has already been recovered from the plaintiff in review, and for recovering costs. E. S., c. 89, § § 11,12; E. S., 1841, ■e. 124, § 9; Crehore v. Pike, 47 Maine, 435; Whittaker v. Berry, 64 Maine, 236; Curtis v. Curtis, 47 Maine, 525; Bunlcij) v. Burnham, 38 Maine, 112; Bradstreet v. Partridge, a 59 Maine, 155; Dyer v. Wilbur, 48 Maine, 287.</p> <p>But it is contended that the provision of the statute (originating in the act of 1864) that where the plaintiff in review, recovers the whole amount of the former judgment, that judgment shall be set off against the original judgment if unpaid, is such a constituent part of the remedy that review can be maintained in no-court, where such set-off cannot be ordered by a direction to the clerk of the court rendering the original judgment.</p> <p>This position proves too much to be sound.</p> <p>The fact that the method of enforcing a judgment is different in the United States Court, can be no bar to removal. Bail given on mesne process is discharged by a removal. U. S. Stat. 1875-6, c. 137, § 3.</p> <p>The Supreme Judicial Court has jurisdiction in review of all causes of action upon which judgment has been rendered in any judicial tribunal of the state, which includes judgment of superior and municipal courts, and of justices of the peace. B. S., c. 89, § 1.</p> <p>Now it seems to us that the Supreme Judicial Court is just as powerless to control dockets and records of other courts, to give instructions to their clerks, or direct entries to be made, (save as a law coui’t), as the federal court is as to the Supreme Judicial Coui*t of the state. But that is not the only method of set-off.</p> <p>It has been undertaken to set-off judgments of different courts in two cases in this state. In one of them we find no reasons given for it. Moody v. Toiole, 5 Maine, 415.</p> <p>In the other, reference is made to the foregoing case, and to Stephen’s Nisi Prius, 1188, and cases there cited. Hooper v. Brundage, 22 Maine, 460.</p> <p>It is also alleged that "this suit is, and all the proceedings on review are, merely incidental to and a graft upon the former suit, and that said action of review is not a litigation separate, and independent thereof.”</p> <p>There is no foundation for this proposition.</p> <p>The suit is begun by a separate and distinct writ, made, served and entered independently, standing alone upon the docket, and upon the record. The issues may or may not be the same as in the former suit. If none were made up there, then pleadings have to be filed in this action. If there were pleadings there, a change may be made here. B. S., c. 89, § 10.</p> <p>It is a "process to correct a former judgment by means of a new one” with "a distinct judgment” and "is a new and independent action.” Dyer v. Wilbur, 48 Maine, 287 ; Orehore v. Pike, 47 Maine, 435 ; Bradstreet v. Partridge, 59 Maine, 155.</p> <p>The rules laid down in following cases, do not apply to this case: Bank v. Turnbull, 16 Wall. 190; West v. Aurora City, 6 Wall. 139 ; Gwin v. Breedlove, 2 How. 29 ; Freeman v. Howe, 24 How. 450; Oglesby v. Attrell, 12 Fed. Eep. 227; Barrow v. Hunton, 99 H. S., 80, (83) ; Nougue v. Glapp, 101 XT. S., 551.</p> <p>"If the proceedings are tantamount to a bill in equity, to^'set aside a decree for fraud in obtaining thereof, then they constitute an original and independent process, and . . . the case might be within the cognizance of the federal courts.” Barrow v. Hunton, 99 U. S., 80.</p> <p>Probate proceedings, as such have been held not to be cognizable by those courts, because they are proceedings in rem, or of that nature, a contest with the whole world, and the whole world is bound by them, and are not begun by a suit, by one party against another. But where a new suit is given in the state court to annul the probate of a will by a separate judgment, such suit may be removed to the circuit court. Gaines v. Fuentes, 92 17. S., 10, (21). •</p> <p>In a case precisely in point, proceedings were had to condemn land for a boom company, first by appraisal by commissioners. This the court say" was in the nature of an inquest . . . and not a suit at law in the ordinary sense of the term. But when it was transferred to the district court by appeal from the award of the commissioners, it took, under the statute, the form of a suit, and was thenceforth subject to its ordinary rules and incidents.” Boom (Jo. v. Patterson, 98 U. S., 403,’(406).</p> <p>Here we have a specific remedy which, in this case, for a specific reason, we take by order of court, but it was open to this plaintiff " when his petition was entered in court, without application for leave to bring an action of review.” Jackson v. Gould, 72 Maine, 335; B. S., c. 82, § 4; c. 89, § 7.</p> <p>Here is a right given by the state legislature to bring an independent suit, in which there is a distinct judgment, in which there is no change or reversal of a former judgment, but which allows that to stand, and which is simply for the recovery of a sum of money from the defendant in review for which judgment will be rendered, if it is successful, in precisely the form that it would be entered upon any ordinary suit. Such a remedy is enforceable in the federal courts. For where a state legislature has given a right and a remedy, it may be enforced in the federal courts, whether it be in equity, law, or admiralty, where the proper. citizenship exists. Glark v. Smith, 13 Pet. 195; Parker v. Overman, 18 Iiow. 137; Van Norden v. Morton, 99 U. S., 378; Qummings v. Nat. Bank, 101 Id. 153.</p> <p>It cannot be withdrawn from- the cognizance of such federal court by any provision of the state legislature, that it shall only be enforced in a state court. Railroad Go. v. Whitton, 13 Wall. 270; Holmes v. O. & G. R. R. Go. 5 Fed. Bep. 75.</p> <p>That this action is not a part of the proceedings on the petition is sufficiently established by the fact that, as already shown, it could have been brought without it, and that where the petition is necessary, it must have been finished and go off the docket before the writ could be brought. It "cannot be entered, heard or determined under the petition.” Bradstreet v. Partridge, 59 Maine, 155.</p>

<p> Statute of limitations. Subsequent attaching creditor. </p> <p>Where a subsequent attaching creditor has obtained leave of court to defend the suit of a prior attaching creditor he may set up the statute of limitations -as a ground of defense.</p>

ON EXCEPTIONS. The exceptions were to the ruling of the court in overruling a ■demurrer to a bill in equity. The case is sufficiently stated in the opinion. cited: Bradley v. .Farmed, Holmes’ Rep. 433 ; Goons v. Tome, 9 Fed.

Bill in equity. Heard, on bill, answer and proof. The opinion states the case and material facts. Perry on Trusts, § § 127, 128, p. 68,'and cases there cited; Orooker v. Orooker, 46 Maine, 250. contended that there was so much of a commingling by Bovoy of his ward’s money and property with his own, that it was impossible to identify the trust funds.