Volume 75 — Maine Reports

<p> Tort. Principal and agent. Fraudulent misrepresentations. Sales. Deceit. Evidence. </p> <p>A principal is liable in an action of toft foi the fraudulent misrepresentation of his agent made within the scope of his authority, in an action on the case for fraudulent misrepresentations in the sale of a farm, which were alleged in the writ to he among others, “that said farm for several years then last past had produced and cut eighteen tons of hay each year,” that a certain portion of the farm “ was almost entirely free from rocks and stones and of smooth surface,” and “that in the season preceding, to wit, of A. 1). 1878, forty sheep, two horses, three cows and six young cattle were pastured through the whole pasturing season upon said farm,” it was held that the representations were statements of material facts, and sufficiently definite to he actionable.</p> <p>In sucli an action, ericTence in relation to the quantity of snow on the ground, and the opportunity the plaintiff had to inquire oY the neighbors and the refusal of the agent to go a second time upon the land, is admissible not as-tending to' show a substantive cause of action, but as bearing upon the negligence of the purchaser.</p> <p>In such an action it was held that the question of due care on the part of the purchaser was properly left to the jury.</p>

Bill IN equity. Heard on bill, answer and proof. The opinion states the material facts. cited : Forthrop v. Hale, 72 Maine, 275 ; Gerrish v. JST. B. Ins. for Savings, 128 Mass. 159 ; Blasdel v. Loche, 52 N. H. 238; Hoivard v. Windham Bank, 40 Yt. 597 ; Gardner v. Merritt, 32 Md. 78 ; Minor v. Rogers, 40 Conn. 512; Ray v. Simmons, 11 K,. I. 266; Brabrooh v. Bost. Five Gents Sav.

Oh agreed statement of facts. Petition for partition of certain land in Northport, wherein the ■petitioner claimed to own one-twelfth part by virtue of a levy of •an execution in his favor, upon the same as the property of Thomas A. Cunningham within thirty daj^s after judgment, and that the property was attached February 21, 1878.

Agreed statement. Bill in equity. Heard on bill, answer and agreed statement. The opinion states the material facts. contended that the bill could be maintained against the other heirs and that the widow had no interest in the question and should not be made a party thereto, though it might perhaps be necessary if the bill sought to recover a distributive share of the personal estate.

<p> Trustee process. Penobscot Log Driving Gompany. </p> <p>A trustee disclosed that lie was indebted to the Penobscot Log Driving Company for driving his logs in the sum of §4170.34. The charter of the company, as amended, provided that the company “may assess a toll not exceeding two dollars per thousand feet, board measure, on all logs and lumber of the respective owners, which may be driven by them, sufficient to cover all expenses, and such other sums as maybe necessary for the purposes of the company. ” And the testimony of the officers of the company disclosed that the directors intended to assess enough for making the drive, and then ' something more to pay the debts; Held, that the trustee was chargeable for the amount of his indebtedness disclosed, for driving of his logs.</p>

Ox EXCEPTIONS to the ruling of the court in overruling the defendant’s demurrer to the plaintiff’s writ of scire facias. The opinion states the material facts. Revised Statutes c. 76, § § 17, 18, does not confer authority to issue the execution sued for. The levy may be set aside,” but it cannot be divided as the plaintiff asks in this case. Remedy is given when the levy is totally defective, not when defective in part.

On exceptions. Petition for partition, dated September 15, 1880, in which the petitioner alleged that he is the owner .in fee simple of nine undivided tenth parts of the following described real estate situate in Warren, in said county of Knox, bounded and described as follows, viz : beginning at the westerly shore of North Pond, and at the northeast corner of Edwin Cushing’s lot; thence westerly by said Cushing’s north line two hundred and five rods and fifteen links to the…

ON EXCEPTIONS. The defendant was found guilty of larceny by the jury, and' his motion in arrest of judgment being overruled, he alleged, exceptions. The opinion states the niaterial facts.

<p>Trustee process. Exceptions. Practice. It. c. 86, § 79.</p> <p>An alleged trustee has no right to disclose further while his exceptions to the ruling of the court, charging him, are pending.</p> <p>The law court will not remand a case for the' further disclosure of a trustee ■ under R. S., c. 86, § 79, when the disclosure already made, is apparently truthful and sufficiently full to enable the court to pass upon it understandingly.</p>

On exceptions. Tbe writ was dated February 4, 1882, and contained the following declaration: ■In a plea of the case; for that whereas on the seventeenth day of December, A. D. 1878, at Wilton, in said county of Franklin, one Vinal T. Thompson, then of said Wilton, now of Mt. Vernon, in the county of Kennebec and state of Maine, bargained with the said Phoenix Insurance Company, to purchase of said company a policy of insurance against loss by fire, as follows, to wit: Pour…

On report. Assumpsit by the assignee of Charles B. Varnum, insolvent debtor, to recover of Storer Brothers and Company, the sum of one thousand five hundred seventy-two dollars and eighty-three cents paid to them by the insolvent debtor in notes (of third persons for seven hundred, and fifty dollars, and his own and his wife’s notes for the balance,) February 8, 1881, when it was alleged Varnum was in fact insolvent and unable to pay his debts and when the defendants had…

Bill IN equity by the plaintiff, as assignee in insolvency of Willis P. Ayer, to recover the sum of five hundred dollars paid to the defendants at the request of Ayer, by Joshua Burns. Heard on bill, answer and proofs. The opinion states the facts. cited : Gattman v. Monea, 12 N. B. R. 493 ; Foster v. Haclcley, 2 N. B. R. 414 ; Miller v. Keys, 3 N. B. R. 224; London v. 1st Mat. Banh, 15 N. B'.

On exceptions. Assumpsit on a promissory note. The opinion states the material facts. Weed, contended, upon the point considered in the opinion, that the addition of an attesting witness made a material alteration of the note and brought it within the law laid down in Chadwick v. Eastman, 53 Maine, 12.

On exceptions. Assumpsit to recover the sum of four hundred dollars in accordance with a vote of the defendant town, at their March meeting in the year 1874. The writ was dated February 7, 1880. The plea was general issue. . At the trial after the plaintiff’s evidence was out, the presiding justice ordered a nonsuit, and the plaintiff alleged exceptions. The facts appear in the opinion.

On report. Trover for the value of a building erected in the summer of 1876 on land of Benjamin F. Mills, by George W. Dearborn, who was in possession of the land under a verbal contract to purchase. Plaintiff claims as purchaser at an officer’s sale as personal property un an execution rendered in a lien claim suit against Dearborn, in favor of a material man.

On exceptions and motion to set aside the verdict, from superior court. An action to recover damages sustained by the plaintiff by an injury to his person and to his horse, caused by a defect in.a way in the town of Mount Vernon.

<p> Pleadings. Promissory notes. Officers de facto. Deeds. </p> <p>The capacity and legal authority of one to whom the defendants have given a-promissory note as treasurer of the ministerial and school fund of a town cannot be questioned by them in a suit on the note under a brief statement accompanying the general issue. 1-Iis want of authority is to be pleaded, if at all, in abatement.</p> <p>When it appears that certain individuals have been the acting municipal officers, town clerk and treasurer in a certain town, and also the acting trustees, clerk and treasurer of the ministerial and school fund in the town, at any period, their acts in those capacities during such period in the disposition of the ministerial and school lands in that town, so far as the rights of the public and third parties interested therein are concerned, will be as valid as if it appeared that they were officers de jure as well as de facto.</p> <p>"In the absence of all fraud and collusion a deed duly executed by such acting treasurer of such acting trustees, by order of the trustees, purporting to convey all the right, title and interest of the trustees of the ministerial and school lands in that town, in a parcel of such lands, will convey whatever title there is vested in the inhabitants of that town to the parcel therein described.</p> <p>'The reception of such a deed by those who have bargained with such trustees for the land, agreeing “ to run their own risk against any title which anybody else had, except the legal trustees,” is a good consideration for the note given therefor.</p>

ON BEPOBT. Trespass for entering plaintiff’s premises between May 1, 1881, and the date of the writ, and erecting a reservoir and laying down water pipes. The writ was dated September 9, 1881. The plea was general issue, and brief statement justifying the acts complained of under their charter, which read as follows : An act to incorporate the Bar Harbor Water Company.

On report. The report consists of the award of the referee and the evidence therein referred to: [•Award.] The case was submitted to me, as referee, upon the disclosure of the alleged trustees and the letter of Henry Little, P. M. dated April 6, 1882, (which are hereby made part of this report), to determine the liability both of the principal defendant and of the trustees; and I report that the trustees be charged in the sum of $80.84, less the costs legally taxable for the…

ON exceptions and motion for new trial by defendant. Action of trespass against the treasurer and collector of taxes of the city of Rockland for the year 1877. The verdict was for plaintiff for $493.75. The opinion states the material facts. contended that the defendant’s justification failed because there was no evidence of any vote of the city of Rockland fixing a time when or within which the taxes for 1877 were payable. R.S., 1871, c. 6, § § 93, 153; stat. 1876, c. 92.

<p>ON exceptions and motion.</p> <p>Case for damages for an alleged malicious prosecution, before a United States commissioner, December 24, 1880. Thp writ was dated August 1, 1881. The verdict was for plaintiff, for §432.50.</p> <p>The opinion states the material facts.</p> <p>cited: Olmstead v. Partridge, 16 Gray, 383 ; Sayles v. Briggs, 4 Met. 421; Stone v. Grocker, 24 Pick. 87 ; Humphries v. Parker, 52 Maine, 505 ; Page v. Gushing, 38 Maine, 526; Merriam v. Mitchell, 13 Maine, 439 ; Bigelow on Torts, (Student’s Ed.) 82, 78; 1 Hill’d Torts, 446; 2 Starkie Ev. 915, 913, 914, 917 ; 3 Mason, 102; Pullen v. Glidden, 66 Maine, 202 ; Speck v. Judson, 63 Maine, 207; Butler’s Nisi Prius, 14; 2 Gxeenl. Ev. § 456; Tomp-son v. Mussey, 3 Greenl. 305.</p> <p>There is no want of probable cause shown. Probable cause has been clearly defined in Bacon v. Towne, 4 Cush. 217, and in many other cases. Perhaps the best definition, quoted most widely by legal writers on the subject, is found in Lacy v. Mitchell, 23 Ind. 6.</p> <p>If defendant honestly believed that plaintiff did pass it, and the circumstances were sufficiently strong to give him a reasonable ground of such suspicion and belief, then that makes such a case of probable cause as will be a perfect defence. James v. Phelps, 11 Ad. & El. 483 ; Hall v. Suydam, 6 Barb. 83; Swain v. Stafford, 4 Ired. 392; Humphries v. Parker, 52 Maine, 502; McGurn v. Brackett, 33 Maine, 331; Bigelow’s Leading Cases in Tort, p. 198 ; The Central Law Journal, vol. 14, pp. 63, 86 ; Farnham v. Feeley, 56 N. Y. 451; Al. Law Jour. vol. 22, p. 114; Gloon v. Gerry, 13 Gray, 201; Kidder v. Parkhurst, 3 Allen, 393; Bigelow on Torts (Student’s Series), 77, 78, and. cases cited; Stewart v. Sonnebon, 8 Otto, 187; Farnham v. Feely, 56 N. Y. 451; Besson v. Southard, 10 N. Y. 236.</p> <p>This whole question of probable cause has been ably and exhaustively discussed in the Central Law Journal, vol. 14, pp. 62 and 82, in articles written by JohnD. Lawson. These articles are full of citations and are a digest of principal decisions on the subject.</p> <p>The rule which makes the certified copy of the record of a justice of the peace admissible, does not apply to the records of a United States commissioner.</p> <p>1st. Because justices of the peace are held to be courts or judges of record. "They are required, by statute to keep a record of all their judicial proceedings, both in civil and criminal cases.” The existence of such record is recognized and its production required, in various cases; "and many of the cases tried before them are not mere preliminary examinations leading to other proceedings, but judgments in their strict sense.” Thayer v. Commonwealth, 12 Met. 9.</p> <p>2nd. In every case in which certified copies of United States, and state officials have been admitted, it has been upon the ground that there was a prescribed duty and obligation to keep such records. U. S. v. Pereheman, 7 Pet. 52.</p> <p>Thus the register of letters, received at the post office, is an official record authorized by law to be kept, and is, therefore, admissible in evidence. Gurney v. Howe, 9 Gray, 404. And in Evasion v. Chinn, 19 Alb. Law J. 317, the admission of a record kept by a person employed by the United States signal service at Chicago was objected to upon the trial of an action; because there was no law authorizing such records to be used; and because it was not competent testimony. But the court held the said records admissible on the ground, that "they are of a public character, kept for public purposes, and so immediately before the eyes of the community, that inaccuracies, if they should exist, could hardly escape exposure.” Dyer v. Snow, 47 Maine, 254.</p>

On exceptions from the superior court. Action to recover damages from a defect in a highway in the •defendant town November 15, 1879. The following- is the only written notice given by the plaintiff to the defendants of the defect and accident, and his claim for 'damages therefor ■: North Windham, November 28, 1879. To the selectmen of Windham.

ON REPORT. The opinion states the case and material facts. in an able argument contended that the lease was procured by fraud and duress, because the tenant was in possession when the officer went there in haying-time with a writ of possession running against the defendant’s son, and in favor of the plaintiffs, and put the plaintiffs’ agent in possession, and thus induced the defendant to take a lease.

ON exceptions from superior court. This was an indictment charging the respondent with keeping and maintaining a nuisance under the liquor law.

<p> Buies of court. Specifications of defence. Practice. Evidence. Pauper. Marriage. </p> <p>Whether rule ninth of the Rules of Court adopted at the July term, 1855, ceased to he operative on the repeal of the statute requiring specifications of defence or not, it is competent for the presiding judge to order the filing of such specifications as a condition of taking off a default. When such specifications are filed, the court will not set aside a verdict as against law and evidence because the report of the evidence fails to show proof or admission of matters which it was essential for the plaintiff to establish, but which were alleged in the writ and not denied in the specifications.</p> <p>Proof of the due solemnization of a marriage ceremony between two persons will not suffice, in a civil action, to exclude the ordinary circumstantial evidence of the existence of a previous marriage of one of those persons to a third person who is still living.</p>

On exceptions. Assumpsit on account annexed and for money had and received. Writ dated March 7, 1878. The defendant was the superintendent for St. John and Mark who carried on the granite cutting business on Clark’s Island, employing many men. The plaintiffs were the store keepers there.

Assumpsit declaring on a town order for one thousand dollars, dated July 19, 1876. The writ was dated July 19, 1881, and the plea was the general issue. At the trial it was agreed by the parties that the presiding judge should submit a single question to the jury, which with their answer thereto, should make a part of the case and the whole case should then be submitted to the law court.

On exceptions and motion to set aside the verdict. Assumpsit to recover damages for an injury received from the kick of a horse which the plaintiff had hired from the defendant and was driving'.

<p>. Evidence. Deceased witness. Side witness. Depositions. Practice.</p> <p>When the deposition of a witness has once been legally taken and used at a trial in court, and the witness is dead, the deposition is admissible in evidence, in a subsequent proceeding between the same parties, and involving the same issue.</p> <p>Whether the issue in the two cases is the same, or not, is in the first instance a question for the presiding justice to decide. And his decision is conclusive, when the exceptions do not afford any basis for a determination that an error in this respect was committed by such justice.</p> <p>It is not beyond the limits of good practice, or a violation of any settled rule of evidence, to admit in evidence the deposition of a witness, who, by reason of sickness is unable to attend court, which was taken upon the same issue, between the same parties, and both parties had fully exercised the right to examine the witness, when no surprise or sudden change in the aspect of the case, to render the right of further examination valuable, is alleged, if tlie court in view of all tlie circumstances determines that the ends of justice would be better served by receiving the deposition than by interrupting the trial.</p>

On exceptions. Action of the case against defendants for making the following ■certificate which the plaintiff alleges was false through the malice ■or negligence, or both, of the defendants. Portland, January 19, 1881. This is to certify that we have examined Mrs. Lemira C. IPennell as to her mental condition and pronounce her insane and .needing the care and restraints of an insane asylum. George H. Cummings, M. D. E. W. Brooks, M. D. .1 concur in the above.

On . EXCEPTIONS AND MOTION. Action to recover damages for injury to plaintiffs’ aqueduct by removing its support in operating a lime quarry which it crossed. The writ was dated September 23, 1875. This was the second time the case had been tried. After the first trial it was carried to the law court on exceptions by both parties and is reported in 69 Maine, 255.

ON exceptions and motion from superior court. An action of the case to recover damages for an alleged false arrest. The writ was dated August 19, 1881. The plea was the general issue. The verdict was for the plaintiff in the sum of one hundred and twenty-five dollars. At the trial the presiding judge in his charge, after giving the general rule of damages, continued: The plaintiff claims in addition to this to recover punitive damages. . . .

<p> Payment. Promissory notes. Checks. </p> <p>The creditor of a town received from the treasurer a check in part payment of the debt and a negotiable note signed “T. B. Swan, treasurer of the town of Minot,” for the balance. Held, that the note, having been taken by the creditor under a misapprehension caused by the treasurer, was not evidence of a payment pro tanto of the demand for which it was given and that the town was liable on the original demand to the extent of such note.</p> <p>"Where the money is in fact paid over to the creditor on such a debt, and re-borrowed by the treasurer on the credit of the town, and a note signed as above given therefor, the creditor cannot recover the amount of such note of the towm "without showing that the money was in fact appropriated to the legitimate uses of the town.</p> <p>A debtor, who appropriates the funds out of which a check given by himself or his agent in payment of a debt is to be paid, and thereby causes the check to be dishonered, cannot afterwards claim that there has been a payment by means of it.</p>

On report. Assumpsit on a policy of fire insurance, covering two thousand dollars, on certain farm buildings of the plaintiff, which were destroyed by fire. The writ was dated March 8, 1880. The.opinion states the facts. The following is section six of the charter of the defendant company, which receives a construction in the opinion: Section 6.

On exceptions and motion. Assumpsit for pauper supplies furnished the wife and child of Frank W. Hawkes. The jury rendered a verdict for the plaintiffs for twenty-four dollars, and they found specially that six dollars of the verdict was for support of the child. The opinion states the material facts. cited: McLellan v. Crofton, 6 Maine, 307 ; Jameson v. Androscoggin JR. JR. Co. 52 Maine, 412 ; Merrill v. Crossman, 68 Maine, 412 ; Winslow v. Kimball, 25 Maine, 493.

On motion. This is a real action to recover a lot of land and appurtenances-in Bangor. The case has before been at the law court and is reported in 73 Maine, 410.

<p>On exceptions and motion.</p> <p>An action on the case against the defendants, a toll-bridge corporation, for personal injuries alleged to have been sustained by the plaintiff, a married woman, in crossing the defendants’ bridge, December 30, 1878, from a defect caused by ice upon which she fell and fractured a bone of the arm and dislocated the -wrist. The writ was dated September 17, 1880.</p> <p>The opinion states the material facts.</p> <p>cited upon the question considered in the opinion: Shearman and Eedf. Negligence, § 606; Oliver v. No. Pac. Trans. Co. 3 Oregon, 84; Bridge Ass’n v. Loomis, 20 111. 235 ; Dicey on Parties, 391; McCarthy v. Guild, 12 Met. 291; Stat. 1876, c. 112; Abbott v. Abbott, 67 Maine, 308; Hobbs v. Hobbs, 70 Maine, 382; Filer v. N. T. Oen. B. B. Co. 49 N. Y. 47 (10 Am. E. 327.)</p>

On exceptions and motion. Debt on a bond for the conveyance of real estate. Writ dated June 4, 1877. The verdict was for the plaintiffs in the sum of §1883.44, and the following special findings were returned by the jury. Question. Did the plaintiffs inform the defendant of the assignment from Fisk to Charles M. Hayden and exhibit it to her when they demanded the deed by Mr. White in April or on the first day of June, 1877 ? Answer. Yes.

On report. An action to recover damages for interfering with the plaintiff’s tenement bouse and refusing to employ any laborer who rented the same. Writ dated February 24, 1879. Plea, general issue. The facts arc much stronger than is necessary to make out a case. It was a wrong done to plaintiff’s property, for which he has a remedy.

On exceptions. Action on the bond of a collector of taxes. The case was submitted to a referee, and his report states the question and material facts. The exceptions were to the ruling of the court, accepting the report and ordering judgment for the defendants (except as to N. C. Wyman).

<p>On report.</p> <p>This is the second time this case has .been to the la.w court. See S. C. 72 Maine, 348.</p> <p>Assumpsit to- recover fifty-six hundredths of twelve hundred dollars, being the amount of a judgment paid by the plaintiff town to Daniel Kimball, June 1, 1876. The writ was dated September 7, 1877. The plea was the general issue, with brief statement setting up the statute of limitations; also that all demands between the parties were submitted to referees, prior to the commencement of this suit, and the referees had heard the parties and made their report to the Supreme Judicial Court, and that such report had been accepted and judgment rendered thereon.</p> <p>The defendant town was formerly a part of the plaintiff town and was separated therefrom and incorporated in the name of the town of Mansel, by c. 92, special stat. 1848, and by a subsequent statute, the name was changed from Mansel to Tremont.</p> <p>The following is the act of incorporation :</p> <p>" Be it enacted by the senate and house of representatives in legislature assembled, -as follows :</p> <p>"Section 1. All that part of the town of Mt. Desert, in the county of Hancock, lying south of a line commencing at Andrew Fernald’s north line on Somes’ Sound; thence across the mountain to the head of Deming’s Pond; thence continuing the same course to Great Pond; and thence across said pond to the southeast corner of lot number one hundred and fourteen, on a plan of said town by John S. Dodge; thence westerly on the south line of said lot number one hundred and fourteen, to Seal Cove Pond, and continuing the same course to the middle of said pond; thence northerly up the middle of Upper Seal Cove Pond to the head thereof, and continuing the same course to the south line of lot marked 'Reuben Noble, ’ on said plan ; thence westerly on the south line of said last named lot to the sea shore, together with Moose Island, Gott’s Island and Langley’s Island, with the inhabitants thereon, is hereby set off from said town of Mt. Desert and incorporated into a separate torra of Mansel, and vested with all the powers, privileges and immunities, and subject to all the duties and liabilities of other incorporated towns, agreeably to the constitution and laws of this state, and is classed in the same representative district as its inhabitants now are.</p> <p>" Section 2. Said town of Mansel shall be holden to pay the said town of Mt. Desert such proportion of the debts and liabilities of the said town of Mt. Desert, beyond their resources now existing, and which may hereafter arise in consequence of any and all suits at law, now pending against or in favor of said town of Mt. Desert; and also assume the support of such proportion of all persons, supportéd as permanent or occasional paupers-by said town of Mt. Desert, as the last valuation of that portion set off, hereby bears to the whole valuation of the town of Mt. Desert.</p> <p>"Section 3. The inhabitants of the town of Mansel shall be held to pay all taxes which have been assessed upon them by the town of Mt. Desert and which remain unpaid at the time of the passage of this act; and also their just proportion of such state and county taxes as are already, or may be hereafter assessed and apportioned on the inhabitants of the town of Mt. Desert, until the legislature shall lay a tax upon the town of Mansel.</p> <p>"Section 4. The inhabitants of the town of Mansel shall be entitled to receive from said town of Mt. Desert their proportion of school money raised in said town of Mt. Desert, which has been or may be apportioned to the several school districts and parts of districts falling within the limits of the town of Mansel, as hereby .incorporated.</p> <p>" Section 5. It shall be the duty of the selectmen of the town of Mt. Desert, to make returns to the secretary of state, by the first day of February next, of the proportion of the state valuation of said town, which is set off by this act, and incorporated into the town of Mansel.</p> <p>"Section 6. Any justice of the peace within said county of Hancock, may issue his warrant to any legal voter residing in said town of Mansel, directing him to notify the inhabitants thereof to meet at a time and place specified in said warrant, for the choice of town officers and to transact such business as other towns are authorized to do at their annual town meetings.</p> <p>"Section 7. This act shall take effect and be in force, from and after its approval by the governor. ”</p> <p>At the trial the plaintiff introduced the records and evidence in the case of Daniel Kimball vs. Inhabitants of Mt. Desert, by which it appeared that the cause of action in that suit was a levy upon the property of Daniel Kimball, April 22, 1848, to satisfy a judgment or warrant of distress from the court of county commissioners against the inhabitants of Mt. Desert. The defendants introduced in evidence, the agreement in writing signed by committees for and in behalf of their respective towns, December 30, 1851, by which all demands between the towns were submitted to the determination of John M. Hale, John West and Theodore C. Woodman in the manner stated in the opinion, also the record of the judgment rendered on their report.</p> <p>cited: Wood v. Léland, 1 Met. 387 ; Thayer v. Daniels, 110 Mass. 345 ; Her kins v. Little-field, 5 Allen, 370 ; Reeves v. Pulliam, 7 Baxter (Tenn.), 119 ; Lytle v..Mehaffy, 8 Watts (Pa.), 267; Godfrey v. Bice, 59 Maine, 308; Kendall v. Bates, 35 Maine, 359; Bixby v. Whitney, 5 Maine, 192 ; King v. Savory, 8 Cush. 309 ; Hopson, v. Doolittle, 13 Cohn. '236; Hastings v. Dickinson, 7 Mass. 153 ; Ouyler v. Ouyler, 2 Johns. 186.</p> <p>This action is based upon an implied promise for contribution which the law presumes one, jointly liable to pay a debt, makes to the other, jointly liable, upon his payment of the debt. But the law never implies a promise when there is a liability created by express contract or by statute. Hxpressum facit cessare taciturn. Metcalf, Contr. 6. Here there was an express liability imposed by the statute. The liabilities of the old town remained the same, were not changed by the separation of a portion of its territory. Windham v. Portland, 4 Mass. 384; Hampshire Go. v. Franklin Qo. 16 Mass, 86; Forth Yarmouth v. Skillings, 45 Maine, 142.</p> <p>There can be, then, no implied promise or liability on the part of Tremont to pay any portion of the liabilities of Mt. Desert. But in this case, the act contained a provision by which Tremont was not made liable to creditors jointly with Mt. Desert or in any other manner, but was made liable to pay to Mt. Desert a certain proportion of the debts. It is claimed that this created an immediate liability on the defendant town to pay Mt. Desert its proportion of all the debts; that by a proper construction of the act of separation on account of the liabilities and resources of Mt. Desert should have been taken at that time and if there was an excess of debts then, Tremont was required to pay its proportion then. That Mt. Desert could then have maintained an action for such proportion. Smith v. Pond, 11 Cray, 234; Turner v. Durgin, 119 Mass. 507,</p> <p>Consequently this action, commenced nearly thirty years after the right of action accrued, is barred by the statute of limitation.</p> <p>Counsel further argued that the submission of all demands between the parties embraced the claim now in suit; and also that the burden was upon the plaintiff in this case, to show that the liabilities of Mt. Desert at the time of the separation, were in excess of the resources, in order to entitle them to maintain any action against Tremont. JSTew Bedford v. Bingham, 117 Mass. 445.</p>

<p> Deed. Husband and wife. Fraudulent conveyance. </p> <p>A deed of gift from a Imsband to Ms wife is a valid conveyance as against subsequent creditors of the husband, when it does not appear’, as one step in a fraudulent design, that it was made with the active and deliberate purpose to put the property beyond the reach of debts which he then intended to contract and not to pay.</p>

<p>Bill in equity.</p> <p>Heard on bill, answer and proof.</p> <p>Tbe plaintiff is the widow and administratrix of Samuel D. Reed.</p> <p>The opinion states the material facts.</p> <p>The following is the written agreement of the defendant referred to in the opinion :</p> <p>"Whereas, Samuel D. Reed, of Bath, in the county of Sagadahoc and state of Maine, has by his deed dated the eighth day of May,. A. D. 1873, conveyed to me certain land situate and lying in the county of Marathon, in the state of Wisconsin, containing in all about twenty-four hundred and eighty acres, in consideration of a certain sum of money paid by me to him on the delivery of said' deed, and inasmuch as neither said Samuel D. nor myself are fully acquainted with the real value of said lands, and know not that they are worth a sum beyond what I have already paid him therefor; and I do not desire to speculate at his expense, nor to deprive him of any advantage that may accrue from the rise in value in said lands; therefore in consideration of these circumstances, I do for a valuable consideration to me paid by said Samuel D. promise and agree to and with said Samuel D. that if at any time during his lifetime I shall sell and dispose of said land or any part thereof at a sufficient price to leave a balance after deducting all payments, costs, charges, expenses and interest, and all sums of money that may be due me from him, that I will pay said balance to him if he shall demand it. This promise and agreement does not extend to the heirs, executors or administrators of said Samuel D. but the same is confined to him personally during his lifetime, and it is understood that at his decease no rights or claims of any nature incident to or growing out of this agreement shall survive.</p> <p>(Signed) Franklin Reed. ”</p> <p>"Witness, F. W. Weeks.</p> <p>Bath, May 8, 1873.”</p> <p>cited: Story, Conflict of Laws, 454-457; 2 Story, Eq. Jur. 48, 49, 185; 2 Kent’s Com. (4th ed.) 463 and notes; Laughton v. Harden, 68 Maine, 208; Graves v. Blondell, 70 Maine, 190; Bgery v. Johnson, 70 Maine, 258; JEveleth V. Wilson, 15 Maine, 109; Peterson v. Grover, 20 Maine, 363; White v. Ghadbourne, 41 Maine, 149.</p> <p>The plaintiff in her bill says that the conveyance of May 8th, 1873, from her intestate to defendant, was made to secure defendant for money loaned; that the sum loaned was less than the consideration named in said deed; and that the sum thus loaned has been repaid, either by said intestate during his lifetime or since his death, from proceeds of property in defendant’s hands that belonged to said estate.</p> <p>This is negatived by the evidence in writing, both by the deed and the writing signed by defendant and by defendant’s answer. There is no direct evidence in the case to contradict the defendant’s answer. The declaration of the husband, made to the wife when she released her right of dower, without the knowledge of defendant and of which the defendant was not informed, cannot be received to change an absolute into a conditional deed.</p> <p>This leaves the allegation of plaintiff as to the point whether or not the deed was defeasible, as stated in her complaint, upon herself, naked in contrast with defendant’s positive answer that he purchased the land in good faith, and paid for it what at the time he believed to be a fair price, viz : two thousand dollars. The answer of defendant was responsive to the allegations in the bill upon this point, and must prevail. 2 Story’s Eq. Jurisprudence, 1528; Flagg v. Mann, 2 Sumner, 206.</p> <p>The book entries are not such records of deceased as to entitle them to weight. They are the casual jotting upon an unused book. The book itself is the best evidence to'show that it is not evidence. To make such a book evidence, it must appear that the entries were made by deceased in the regular course of business. Lord v. Moore, 37 Maine, 220; 1 Wharton, 684; JBonnell v. Mawha, 37 N. J. 198.</p> <p>In this case there was no loan in contemplation, and no stipulation for repayment; and the vendee had no remedy against the vendor. He took no voucher for the money paid, only a deed. Such a relation must exist, either by express or implied agreement, in order to establish a mortgage. Conway’s executors v. Alexander, 7 Cranch, 237.</p> <p>A stipulation that if the grantor can within a limited time dispose of the land to better advantage, he may do so, paying to the grantee the " consideration money ” mentioned in the deed, does not make the instrument a mortgage. 1 Jones Mortgages, 271; Stratton v. Sabin, 9 Ohio, 28.</p> <p>If the defendant took the deed from Samuel D. for an agreed consideration, and for the reasons set forth in his answer, voluntarily and without any consideration therefor, gave him the writing set forth in plaintiff’s bill, it did not change, the tenure or title. It was simply a personal and conditional promise dependent on the conditions therein specified.</p> <p>There is no intrinsic evidence from the writing itself, in conflict with defendant’s answer. It recites that defendant had then already paid all that the land might bring on resale, and the promise that if he should sell during the lifetime of the grantor, for a price sufficient to leave a balance after deducting all payments, costs, charges and interest, and all sums of money that may be due, etc. that he will pay him said balance if demanded, etc. This of itself would not create a defeasance in the title. And unless it was done in fraud of the other creditors of said Samuel D. the plaintiff in her said capacity, has no claim in law or equity therefor against this defendant.</p> <p>Counsel further argued the question of alleged fraud in the conveyance from plaintiff’s intestate to the defendant, contending that no fraud entered into the transaction, that the defendant paid all that either of the parties at the time thought the land was worth.</p>

<p> Evidence. Auditor. Practice. </p> <p>In a real action to foreclose a mortgage given to secure a note of one thousand dollars, the defence relied upon a receipt from the plaintiff in these words : “This day received of Robert Gerry his note of one thousand dollars on three months with eight per cent interest; when he pays, I am to give up a note for one thousand dollars I hold a mortgage for on land at Ellsworth,” with evidence that that note had been paid, the defendant claiming that the receipt referred to this mortgage note; it was held admissible for the plaintiff to present in evidence two other notes of one thousand dollars each, which he had held and endorsed for the benefit of the defendant, and which were secured by another mortgage, the plaintiff claiming that the receipt referred to a renewal of one of these notes, which he held at the date of the receipt.</p> <p>It is not error to recommit a report to an auditor after it has once been accepted and used at a trial, when the verdict has been set aside and a new trial granted. And where the auditor’s second report reaffirms the first, it is competent for the court to allow both to be read in evidence at the new trial. .</p>

<p>On report.</p> <p>These were actions of trover to recover the value of certain machinery and. tools ; the plaintiff in the first suit received her title to- the property named in her writ from the plaintiff in the second suit and it consisted of the machinery in the planing mill. The writs were dated July 12, 1880. The plea in each case was general issue. The cases were tried together.</p> <p>The opinion states the material facts.</p> <p>cited ; Pickard v.. Sears, 6 Ad. and El. 469 ; Welland Canal Co. v. Hathaway, 8 Wend. 483; Lajgham v. Horton, 71 Maine, 88.</p> <p>contended that the bank never intended to and never did waive or release any rights which it had and that a director, trustee or treasurer cannot by virtue of his office release parties from liability to the corporation, under contract. Dedham Savings Inst. v. Slack, 6 Cush. 408 ; E. C. Co. v. M. Ins. Co. 6-Gray, 220 ; Fairfield Savings Bank v. Chase, 72 Maine, 227.</p>

On exceptions and. motion to set aside the verdict. An action on the case to recover damages for injury to a road caused by the defendant’s dams overflowing the same from September 25, 1866, to the date of the writ, September 25, 1876. The plea was general issue and brief statement setting up a right to flow, acquired by prescription, and the statute of limitations.

ON REPORT. Indictment of the keeper of a hotel for having trout, not alive, in his possession, between the first day of October and first day of May, with intent to sell the same in violation of stat. 1879, c. 123, § 4, amendatory of stat. of 1878, c. 75, § 16. The opinion, states the facts. Statutes 1878, c. 75, and 1879, c. 123, are penal statutes. Gom. v. Hall,-128 Mass. 410.

Report on agreed statement. Assumpsit on a promissory note of nine hundred dollai’s given. May 11, 1876, by the defendant to the plaintiffs. The opinion states the material facts. cited: Morrison v.. ■ Jewell, 34 Maine, 146 ; Thompson v. Mansfield, 43 Maine, 490... There was a total failure of the consideration. Rice v. Goddard, 14 Pick. 295, and cases there cited; Jenness v. Parker, 24 Maine, 289. . Defendant took no title by the widow’s joining 'in the deed.

<p>ON REPORT.</p> <p>The opinion states the case and material facts.</p> <p>cited: Dane v\. Gilmore, 51 Maine, 544; Gage v. Graffam, 11 Mass. 181 ; Spaulding’s Practice, 70; Bank v. Oook, 4 Pick. 405; E. S., c. 102, § 8; Starbird v. Baton, 42 Maine, 569.</p> <p>When a defendant is absent and bas no actual notice of tbe writ, it is in tbe discretion of tbe presiding judge to enter up judgment on default or continue for judgment. Tbe exercise of this discretion cannot be reversed on error. Lovell v. Kelley, 48 Maine, 263.</p> <p>Stat. 1872, c. 14, as amended by stat. 1879, c. 82, authorizing any writ or precept in wbicb tbe deputy of a sheriff is a party to be served by any other deputy of the same sheriff, must be construed by necessary implication as giving tbe sheriff tbe same power conferred upon bis deputy for whose official acts be is liable. If a deputy in bis official capacity commits an illegal act, tbe sheriff is liable therefor. Can tbe sheriff be held responsible for tbe acts of tbe deputy and still have no power to, perform tbe same acts himself?</p>

<p> Taxes. Assessors. Oath. Assessors de facto. B. S., e. 6, 75. Stats. 1874, e. 232; 1879, c. 158. </p> <p>Where no assessors are elected, tlie selectmen must, each- of them, be sworn as assessors before they can legally assess a tax. They can not mate an assessment as officers defacto, which will sustain an action for taxes under stat. 1874, c. 232, as amended by stat. 1879, c. 158.</p>

ON EXCEPTIONS. Debt on an administrator’s bond to the judge of probate. The writ was dated February 15, 1882. The defendants’ demurrer to the declaration was overruled, proforma, and they alleged exceptions. (Declaration.) . . .

Assumpsit on a promissory note of two hundred dollars. The. writ was dated August 12,1881. The defendant at the September term, 1882, filed a plea in bar, setting up a discharge in insolvency. To this the plaintiff demurred, and the demurrer being overruled, he alleged exceptions. ' The following is the certificate of discharge, set out in the defendant’s plea. State of Maine. Somerset, ss. Court of insolvency.

<p>On exceptions, and report on motion to set aside tbe verdict. Assumpsit to recover tbe amount of tbe following due bill: "June 27, 1879. Due C. E. Milliken, §3,625, Thirty-six hundred and twenty-five dollars. C. C. Chapman.”</p> <p>Writ was dated August 7, 1880.</p> <p>(Declaration.)</p> <p>" In a plea of tbe ease for that whereas at said Portland, said Milliken on tbe twenty-seventh day of June in tbe year of our Lord eighteen hundred and seventy-nine sold and delivered defendant sundry notes of tbe Dennison Paper Manufacturing-Company, said Chapman in consideration thereof then and there promised plaintiff to pay him thirty-six hundred and twenty-five dollars on demand, payment of which was then and there demanded. Yet the said defendant, though requested, has not paid the same, but neglects so to do.”</p> <p>At the trial the presiding justice instructed the jury upon one branch of the case as follows :</p> <p>" Then I think it is claimed here in this case that there were some concealments, some keeping back of something that should! have been known ; that there was information obtained but a-, short time before this, perhaps on the very day, by conversation: with Mr. Dennison, which should have been revealed to the* defendant.</p> <p>"Now a mere concealment in a case like that, keeping back,, ■where there is no fiduciary relation existing between the parties, is. not a matter of fraud; that is, where each party stands upon the-same plane, each party acting for himself, and each party relying-upon his own judgment with regard to the matter, although-tliere may be some facts known to one party that are not known-, to the other, he is under no obligation to reveal them. But when-information is asked and some part of the truth may be told then he is bound to tell the whole truth; for the concealment of apart truth when a part is told would in fact be a misrepresentation ; so if there is any such fact in existence which was kept back, material for the other party to know, then any statements- or conduct on his part tending to deceive the other party or to* keep that fact or information away from him, would in fact be-fraudulent; he has no right to do anything to throw the other-party off the track, so to speak, to draw his attention away from this important fact or to prevent him from making further inquiry or such inquiry as he might otherwise have made.</p> <p>" Therefore if there is any concealment of a material fact and, here is a question raised between counsel as to whether that is a-material fact or not and it is for you to decide ; I say if there* was a material fact there, which he kept back under the circumstances which I have stated to you, that he was telling a part of the truth in answer to a request for information, or if he was-guilty of any acts or words which tended to keep the other party from making proper investigation, to prevent him from ascertaining that fact, to lead him away from it and he succeded in that matter, why so far it would be a fraud.”</p> <p>Other material facts are fully stated in the opinion.</p> <p>'cited: Hanson v. .Edgerly, 29 N. H. 343 ; Hammatt v. Emerson, 27 Maine, 308 ; .Aiwood v. Chapman, 68 Maine, 38; Prentiss v. Puss, 16 Maine, 30; Panic v. Cooper, 36 Maine, 197; 2 Kent’s Com. •490, 482*; Story’s Eq. Jur. § § 207 et seq, 146, 149; Gross v. Peters, 1 Maine, 393 ; Davies v. London & P. M. Ins. Co. ■ 8 L. R. ch. Div. 469; Ward v. Hobbs, 4 App. Cas. 26; Mc-■Cobb v. Richardson, 24 Maine, 82; Story’s Eq. § 150; Biggs v. Barry, 2 Curtis, 259; Lupin v. Marie, 2 Paige, 169; Smith v. Hughes, 6 (L. R.) Q. B. 597 ; Kennedy v. Panama .Mail Go. 5 (L. R.) Q. B. 587; Littauer v. Goldman, 72 N. T. • 506 ; Camidge v. Allenby, 6 B. &C. 373 ; Bicknallv. Waterman, •5 R. I. 43 ; Beckwith v. Farnum, 5 R. I. 231; Frontier Bank ■y. Morse, 22 Maine, 97; Whitbeck v. Van Hess, 11 Johns. 409; Day v. Kinney, 131 Mass. 37; Byles on Bills, *154; .Evans v. Whyle, 5 Bing. 485 ; Daniel’s Neg. Inst. (2 ed.) § § '737, 739.</p> <p>This case was submitted to the jury upon the question of fraud in the sale of the notes only, and the matters embraced in the first three requests for instruction were not submitted to the .jury, and have not been passed upon by them. These requests were pertinent to the issue, and should have been granted. The ■first request is based upon a mutual mistake, without any bad faith. The Dennison notes were sold defendant, as current paper of a running concern, reputed solvent. This is implied •from the transaction as narrated by both sides, and follows from the price. In such cases, there is no contract binding upon the parties, but it is voidable, and defendant, it is admitted, did all that was necessary to rescind. Horton v. Marden, 15 Maine, •45 ; McCobb v. Richardson, 24 Maine, 85 ; Warner v. Daniels, 1 Wood. & M. 90, 107, 110; Smith v. Babcock, 2 Wood. &M. :246, 260; Mason v. Crosby, 1 Wood. & M. 342; Doggett v. Emerson, 3 Story, 700; Daniel v. Mitchell, 1 Story, 172; Wheelden v. Lowell, 50 Maine, 505; Hammatt v. Emerson, 27 Maine, 308.</p> <p>The doctrine of caveat empior, as applied to sales of notes, must be construed somewhat differently from its application to sales of chattels. In the sale of chattels, the purchaser can see, by inspection, the quality of the article, and so can intelligently buy on his own judgment. But in the sale of a note, inspection will only show the form of the paper. The essential thing, the ability of the maker to pay the paper, is to be learned elsewhere.</p> <p>In Baxter v. Daren, 29 Maine, 434, it was held that the seller did not even wari’ant the genuineness of the signature, but this case has been substantially overruled in Hussey v. Bibley, 66 Maine, 196; and absolutely overruled in Merriam v. Walcott, 3 Allen, 258 ; Bank v. Morton, 4 Gray, 156.</p> <p>Now, we may say, the seller represents the paper as 'genuine, and, unless sold as failed paper, he also represents it, as at the time, current paper, with mercantile credit and reputed solvency. Suppose the sale was of a horse in a pasture, at a distance, and both seller and buyer had seen the hprse, well and right within a few days, and the trade was made upon the knowledge of each, without representation, when in fact, the horse died the day before, both parties ignorant of the fact — would the buyer be bound? Or if the horse had under these circumstances broken a leg, rendering him valueless, would the contract be enforceable? See Benedict v. Field, 16 N. Y. 595. Harris v. Hanover National Bank, U. S. circuit court, southern district of New Yoi’k, not yet reported.</p> <p>The second and third requests are based upon the failure of the Dennison Company, antecedent to the sale of the notes. Was the company a failed corporation at the time of the sale? We say, upon the evidence, that it was. A check of the company, drawn upon the Casco Bank, whore it kept its deposits and had done its business for many years, was pi’otested for non-payment at that bank on June 25, two days before the transaction between plaintiff and defendant, and was never paid, except by compromise at 25 per cent in the final settlement of the corporation.</p> <p>We submit that a failure, in the legal and commercial sense, takes place when a debtor, being insolvent, recognizes that fact, and ceases to make any effort to meet matui’ing obligations ; and whenever this state of facts can be proved, as it is in this case, a failure is established. If it was failed paper, as we say it was, when sold defendant, then the consideration for defendant’s memorandum failed, and he might rescind. He purchased living, current, unfailed paper, and received dead and failed paper. He paid, or agreed to pay, for what was never delivered to him, and both good morals and law declare him not bound to perform a promise, the consideration for which has thus failed. It is well settled law, that payment of a debt in bills, which are nothing but notes of a failed bank, both parties being ignorant of the fact, does not operate as payment. 2 Greenl. Ev. § 522 ; Frontier Bank v. Morse, 22 Maine, 88; Owenson v. Morse, 7 Term, 64; Young v. Adams, 6 Mass. 182; Merriam v. Walcott, 3 Allen, 258 ; Hazard v. Inoin, 18 Pick, 105.</p> <p>The fourth request vre regard as clearly good law, and should have been given, while the instruction actually given, we submit, does not accurately present the law upon this point. The instructions given are based on the doctrine of caveat emptor, as applied to sale of chattels, where inspection affords the means of judgment as to quality and value. Biags v. Ins. Go. 1 Wash. C. C. 506; Elton v. Larkins, 5 C. and P. 385; Murga-troyd v. Grawford, 3 Dallas, 491; Stetson v. Ins. Go. 4 Mass. 330; Gurry v. Ins. Go. 10 Pick. 535 ; Bridges v. Hunter, 1 M. and S. 15; Hoyt v. Gilman, 8 Mass. 336; McLanahan v. Ins. Go. 1 Pet. 170 ; 1 Parson’s Mar. Ins. 467; Kerr on Fraud -and Mistake, 100, 109, 98; Prentiss v. Puss, 16 Maine, 30; Brown v. Montgomery, 20 N. Y. 287 ; Mitchell v. Worden, 20 253 ; Pegueno v. Taylor, 38 Barb. 375 ; 2 Parsons on Bills, 207 ; Barb. Story, Promissory Notes, § 389, n. 2 ; Weddigen v. Boston Glass Go. 100 Mass. 422 ; Kidney v. Stoddard, 7 Met. 252 ; Hill v. Gray, 1 Stark. 434; Brown v. Montgomery, 20 N. Y. 287 ; 2 Kent’s Com. 482, 645; Laidlow v. Organ, 2 Wheat. 178 ; 1 Parsons on Contracts, 583, 578; Gardiner v. Gray, 4 Camp. 143, a leading case.</p> <p>The principle contained in the fourth request is entirely within the reason and principle in the foregoing authorities, and should liave been given to the jury, instead of the opposite instruction in fact given. Merriam v. Lapsler, 12 Fed. Rep. 458.</p>

ON EXCEPTIONS. Assumpsit. The plea was general issue. .The verdict being for the defendant, the plaintiff alleged exceptions to certain, instructions as stated in the opinion.

<p>On eepoet.</p> <p>Debt on a contract under seal, the writ bearing date October 4, 1881. The plea was general issue, with brief statement setting-up performance, and if there had been a failure that the plaintiff had suffered no damage.</p> <p>The opinion states the material facts upon which it rests.</p> <p>cited : Hill v. Hobart, 16 Maine, 164; Warren v. Wheeler, 21 Maine, 484; Russell v.. Oopeland, 30 Maine, 332.</p> <p>The deed from the plaintiff to Eobert Elliot, although absolute-in form, was, in fact, given as security for money loaned, and other indebtedness.</p> <p>The transaction, independent of the obligation given by the defendant to the plaintiff, constituted an equitable mortgage in Avhich the plaintiff was the mortgagor, and Eobert Elliot was the-mortgagee.</p> <p>The right of the plaintiff to redeem the premises conveyed, by-payment of the debt or debts, to secure which the conveyance was made, existed, independently of the obligation given by the-defendant, and this right to redeem the plaintiff still possesses.. Stinchfield v. Milliken, 71 Maine, 567 ; Peugh v. Davis, 96; IJ. S. 332; Campbell v. Dearborn, 109 Mass. 130; Jones on. Mortgages, § 282, et seq.</p> <p>If Elliot had given the plaintiff such a bond as the defendant’s-obligation describes, the transaction would have constituted a mortgage merely. The plaintiff’s right to redeem and Elliot’s, obligation to release his title upon payment of the amount due,, would have existed the same as now. The plaintiff’s right would have been no stronger, Elliot’s obligation no more binding.</p> <p>Admitting that there has been a breach of the defendant’s obligation, the plaintiff has thereby suffered no damage. She has the same interest in the premises conveyed by her, the same right to redeem, and to. compel the mortgagee to account, and the same power to compel a release on payment of her debt, as :she would have had, if Elliot had executed and delivered to her, within the three days, the bond described in defendant’s obligation. •She is therefore entitled to merely nominal damages. Hadley v. Baxendale, 26 Eng. L. and Eq. 398 ; Miller v. Mariner’s church, 7 Maine, 51; Grmdle v. Eastern Express, 67 Maine, 317 ; Thoms v. Dingley, 70 Maine, 100; Derry v. Flitner, 118 Mass. 131; Pollard v. Porter, 3 Gray, 312.</p> <p>Nominal damages are adequate, because: (1,) The plaintiff has a perfect remedy against the representatives of Robert Elliot, .and it is her duty to first avail herself of such means of protecting .herself from loss. See cases last cited. (2,) As neither the -administrator nor devisee of Robert Elliot are parties to this suit, a recovery by the plaintiff will be no estoppel to the maintenance ■of a bill in equity to redeem against the representatives of Robei’t .Elliot. Bigelow on Estoppel, pp. 46 et seq. and 75. (3,) Mrs. Elliot, as devisee of Robert Elliot, has executed a bond corresponding in all particulars to the stipulations of defendant’s ■obligation, and, the plaintiff being out of the state, has tendered it to her attorneys. This offer is a proper element to be •considered in estimating the damages.</p>

ON REPORT. This was a petition dated March 24, 1882, for the appointment of commissioners to determine the true line between the towns, the… Held: that a deed beginning at a certain monument and running from thence down the river fifty rods, bounds the lot conveyed, on the river; and if the river is a fresh water stream, it conveys the land to the centre.” But if it is a navigable river, in which the tide ebbs and flows,” it extends to low water mark, citing: Hartsfield v.…

ON exceptions, and motion to set aside the verdict. Assumpsit on a promissory note of the defendant for one hundred and eighty dollars, dated June 7, 1879, payable in three months. The writ was dated September 9, 1879. The plea was the general issue. The verdict was for the defendant. The facts sufficiently appear in the opinions.

On exceptions, which state as follows : This was an action of trespass brought by a pupil against her teacher for punishment inflicted upon her in school. Plaintiff claimed that it was excessive, and that in consequence thereof, her spine and brain were injured and became diseased, and she has suffered ever since from such spine and brain disease.

Bill in equity. Heard on bill, answer and proofs. The opinion states the material facts. cited: Baker v. Vining, 30 Maine, 121,- Dwinel y. Veazie, 36 Maine, 509 ; Buck y. Bwazey, 35 Maine, 42; Kelley v. Jenness, 50 Maine, 455 ; Dudley v. Bachelder, 53 Maine, 403 ; Park v. Johnson, 4 Allen, 266. contended that the purchase of the mortgage was not, and could not intentionally have been at the wish of Mrs. Buck.

On report. Assumpsit on account annexed, which was as follows *. Henry W. Bucknam, To Richard Allen and Abram Merritt, Trustees of the Methodist Episcopal Church of Columbia Rails, Hr.

<p>On exceptions.</p> <p>Trespass quare clausum against nine defendants, who joined in •their pleadings. The verdict was in favor of Bichard H. Libby, ■one of the defendants, and against the others.</p> <p>The presiding justice ruled, generally, that all the witnesses -called by the defendants in the trial, except those who were .summoned and did not testify, might be taxed and allowed against the plaintiff, without limitation or restriction of any kind. .And the plaintiff alleged exceptions.</p>

Report on agreed statement. Assumpsit for money had and received amounting to the sum of seventeen dollars and sixty-nine cents. The opinion states the facts. The judgment in the action of trespass against the collector cannot operate as an estoppel to this suit. It was final for. its own purpose and object, and no further. Bigelow on Estop-pel, 41.

On exceptions. Action of the case. The writ was dated August 21, 1882.

On exceptions. This is an action of the case to recover damages in the sum of ten thousand dollars for personal injury alleged to have been sustained by the plaintiff in consequence of the defendant’s negligence in causing a collision of sleighs in which the parties were respectively riding in the public street in Augusta, December 29,1879.

<p>On exceptions from the superior court.</p> <p>This was an action to recover damages sustained by reason of the burning of the plaintiff’s house and barn at Bethel, August 26, 1876, the fire being communicated from the steam mill of the defendants which was burnt on that day. The writ was dated September 29, 1879. The plea was the general issue.</p> <p>The opinion states the essential facts.</p> <p>This action went to the jury upon the single question of liability for maintaining a nuisance, the contract with Pierce having shut out all claims upon the counts for negligence. R. S., c. 17, § 8, provide, in most sweeping language, remedy for injury to property by nuisance; as did its corresponding provision in the previous revision of 1857. The dictum at the close of the opinion in Lyons v. Woodward, 49 Maine, 29, is supposed by defendants, to restrict the effect of this statute to the class of nuisances particularly described in the first section of that chapter. The inquiry there was directed to the nature of the alleged injury, and not to the cause of the injury; and the court looked to section 1 as explaining the nature of the injuries for which an action would lie. It seems to us clear, that this action lies by •express provision of the statute. However this may be, our pleadings are such, that we maintain our suit, either at common law or upon the statute. It is now well settled in this State, that while no private action arises for a public injury by a public nuisance, one does lie for a private and special injury by a public nuisance. Franklin Wharf v. Portland, 67 Maine, 59; Brown v. Watson, 47 Maine, 161; Dudley v. Kennedy, 63 Maine, 465.</p> <p>By R. S., c. 17, § 19, the use of defendants’ engine made it a common nuisance. Being such nuisance, it was operated at the peril of defendants. Frye v. Moor, 53 Maine, 583 ; Jones v. Railway Co. 3 Q. B. 733 ; /Salisbury v. Herchenroder, 106 Mass. 458; Ryland v. Fletcher, 3 Law Report, H. L. 330.</p> <p>In reference to the eighth request, it will be seen that the charter does not expressly authorize the company to manufacture by steam. If it did, yet the locality and methods of erecting engines and guarding against fire and explosion, would remain to be provided for; and there would be no presumption, that the legislature intended to supersede the wise and detailed provisions of the R. S., on these points. This precise principle of construction is settled in Pratt v. Railroad Co. 42 Maine, 586.</p> <p>The statutory action of the selectmen with reference to stationary engines is quasi judicial, after notice to parties interested; and its place cannot be supplied by the arbitrary municipal action of the inhabitants, even if sueh action had been valid, which according to Brewer Brick Co. v. Brewer, '62 Maine, 62, was not the fact.</p> <p>In reference to the instructions of the court about the Pierce contract, we cite the following cases, and we think a perusal of them will obviate necessity of any argument or comment, and that they fully sustain the instructions. Todd v. Flight, 99 Eng. Com. Law Rep. 377 ; Chicago v. Robbins, 2 Black, 418 ; Water Co. v. Ware, 16 Wall. 566 ; Wheaton on Negligence, §§ 817-8; Robbins v. Chicago, 4 Wall. 657 ; Baton v. Railroad Co. 59 Maine, 526; Conners v. Hennesey, 112 Mass. 96.</p> <p>Inasmuch as Pierce did not erect the engine, and, for aught that appears, did not know that it was unlicensed, he might not be liable for the nuisance; and therefore no one might be liable, unless defendant. Pillsbury v Moore, 44 Maine, 156.</p> <p>With reference to the question of negligence, it would seem entirely proper, as throwing a proper light upon the case, to. inquire whether, within a reasonable time previous to the fire complained of in the suit, fire had caught from the same alleged defect, and whether that fact had been brought to the attention, of the president of the company or to the engineer in charge,, who was there when the fire took place. It is claimed that Parker v. Portland Publishing Go. 69 Maine, 173, applies. We think not. This evidence seems to us within, the principle of Grand Trunk Railway Go. v. Richardson, 1 Otto, 454.</p> <p>cited r Parker v. Portland Pub. G'o. 69 Maine, 173; Brightman V. Bristol, 65 Maine, 435 : Lyons v. Woodward, 49 Maine, 29 ; 2'Greenl. Ev. § 472; 1 Add. Torts, 197; Roclcwood. v. Wilson, 11 Cush. 226 ; MoiHson v. Davis, 20 Pa. St. 171; Penn. R. R. Go. v. Kerr, 62: Pa. St. 353; Harrison v. Berkley, 1 Strobh. S. C. 525 ; Sharp v. Powell, L. E. 7 C. P. 253 ; Fletcher v. Rylands, E. E. 1 Ex. 265 ; Ryan v. N. T. O'. R. R. 35 N. Y. 210; Wharton, Neg. § 148, et seq.; 1 Add. Torts, 6; Field,. Damages, § 50; M. & S. P. R. R. Go. v. Kellogg, 4 Otto,, 469 ; Ohapman v. A. <£ St. L. R. R. Go. 37 Maine, 94.</p> <p>Counsel contended further ’that not only was the stationary engine not a nuisance at common law, but that it could not be a common nuisance, inasmuch as its erection had been authorized by an act of the legislature. The act of incorporation, was for the Bethel Steam Mill Co. and the character of the mill is indicated in the title of the act. In construing the act the court have a right to have recourse to the title. Bishop, Statutory Crimes, § 46; Dwarris on Statutes, § 102, note, and § 108.</p> <p>The act of incorporation authorizes the company "to manufacture all kinds of. lumber in the town of Bethel, county of Oxford, and for this purpose to construct, repair, and maintain upon their own land all suitable buildings. ”</p> <p>This authority, by implication, embraces everything that was. necessary to its enjoyment. Now, if this was to be a steam mill company for the purpose of manufacturing lumber, and the company had a right to construct and maintain all suitable buildings for that purpose, it would necessarily involve the erection and use of a steam engine as a part of the structure, otherwise the building would not be a steam mill. The authorities are ample and conclusive that where the legislature confers an authority of this ldnd upon a company or a person, and a building is erected in accordance with and for the purpose mentioned in the act of incorporation, such building cannot be a common and public nuisance, and the legislature, in its sovereign power, having conferred such authority, it does not lie within the province of municipal officers to defeat the grant from the State by neglecting of refusing to grant a license for the purpose contemplated by the act; in a word, the act of the legislature supersedes and takes the place of all other authority of less grade and potency. Upon this point we cite : Boulton v. Crowther, 2 B. & C. 703 ; Steam Navigation Co. v. Morrison, 13 C. B. 581; Beaver v. Mayor, etc. 8 E. & B. 44; Brand v. Hammersmith, R. R. Co. L. R. 2 Q. B. 241, 242; Crachnell v. Mayor, L. R. 4 C. P. 634, 635.</p> <p>Such is the settled law of England; and the current of American decisions sustains this doctrine fully. Lawler v. Boom Co. 56 Maine, 445 ; 6 Barber, 313, 318 ; 9 Barber, 350, 364; 18 Barber, 222, 247; 4 Cush. 72; Wood on Nuisance, §§ 746, 750;' Wharton on Negligence, §§ 271, 869, 870; Addison on Torts, 882.</p> <p>As an illustration of the binding force of an act of incorporation as against even general statute law, we cite the case of Titcomb v. Union Marine & Fire Ins. Co. 8 Mass. 325, where the court held an act incorporating an insurance company, and prescribing the particular manner in which the shares of members and stock were to be attached and sold on execution, to supersede the general provisions of statute upon the same subject passed prior thereto.</p>

<p>On exceptions.</p> <p>Assumpsit for necessaries. The writ was dated February 8, 1883.</p> <p>The trustees disclosed by their attorneys That the agent of the district employed the defendant, Soule, to teach the winter term of school in that district at the rate of twenty-eight dollars a month of twenty-two days " with the implied understanding as is the custom in such employment,” that Mr. Soule should recover no part of his earnings until the term of school should have been fully completed.” The term commenced December 19, 1882, and was not finished February 10, 1883, when the writ was served on the trustees.</p> <p>The trustees were discharged and plaintiff alleged exceptions.</p> <p>contended that after money has been apportioned to a school district for school purposes it belongs to the district, citing- School District v. Deshow, 51 Maine, 454.</p> <p>cited: Head v. Merrill, 34 Maine, 586; Miller v. Gocldard, 34 Maine, 102; OUsy. Ford, 54 Maine, 104; Dore y. Billings? 26 Maine, 56-, Bolfe v. Cooper, 20 Maine, 154.</p>

On exceptions. The opinion states the case and material facts. Held: the officer could not keep the property seven days after the seizure, when he should have sold on the fifth, thus keeping it two days beyond the statute time for selling. The owner had till, and including October 31, to pay in, and the officer then” should have sold, November 1. This, then, is no authority against us.

On report. Trover by the assignee of Francis Winn, insolvent debtor, to recover the value of a horse and yoke of oxen. The horse was seized on an execution in favor of the defendant, June 1, 1882, and sold by the officer on the execution at public sale to the defendant June 7, 1882.

<p>On exceptions from the ruling of municipal court for the city of Lewiston discharging the trustee.</p> <p>The opinion states the material facts.</p> <p>The trustee cannot be charged under this statute because the mare which he had in his possession was exempted by law from attachment. E. S., c. 81, § 59.</p> <p>If the plaintiff would seek to charge the trustee on the ground that the mare was of more than three hundred dollars value and therefore not exempted from attachment the burden is on him to establish that fact. And if he would have him charged on the ground that the defendant at the time owned other animals all of which would not be exempted he must also show that fact. The trustee is not required to furnish, in his disclosure, an inventory of the defendant’s property which is not in his possession. He does all that is required of him when he discloses such property as he has in his possession at the time the process is served on him.</p> <p>And even if the plaintiff should show that the defendant, at the time the process was served on the trustee, owned other animals, he cannot charge the trustee for the mare until he shows that the defendant has had an opportunity to elect which animals he will have exempted, and that he has either neglected to make his election or has elected to have others exempted.</p>

On report. Neal action for the possession of certain land in Berwick. The case shows that Andrew B. S. Morrison mortgaged the premises to W. A. Worster to secure three notes of five hundred dollars each. Mortgage and notes dated July 18, 1868. Worster endorsed and delivered the three notes to W. A. Lord, plaintiff’s intestate, and subsequently, April 2, 1873,.

On report. Assumpsit upon a promissory note given by the defendant to the plaintiffs, March 31, 1866, and on an account for money loaned at New York in the summer of 1866. The plea was the general issue and statute of limitations. At the trial the defendant consented to be defaulted in the sum of $1487.11 with leave to report the case to the full court, who were to determine from the evidence introduced and offered whether the action is barred.

Bill in equity against the administrator with the will annexed, of Mary W. Whittier, and others, to obtain a construction of the sixth clause of the will, which is recited in the head-note. The following questions were propounded by the bill: First. Does Daniel F. Whittier have the right to the possession and absolute control of the balance of the estate under the sixth section; and if so, when? Second. Are not the limitations over repugnant and void? Third.

<p> Gosts in equity proceedings. </p> <p>In suits in equity the whole subject of costs rests in the sound discretion of the court.</p> <p>The mere fact that two or more defendants plead severally does not entitle them to tax several costs, especially when they have one and the same solicitor; each case depends on its own facts.</p> <p>Where a bill sought to charge certain real estate (the record title to which was in the defendant, M. L.) with a judgment against her husband (the defendant E. L.) in favor of the plaintiff’s intestate, on the ground that it was purchased with the money of the husband and conveyed to the wife without consideration through a conspiracy between the husband and wife and their respective fathers (the defendants J. L. and B. L.) ; and that at all events, $200 or $300 of the-husband’s pension money had been expended in repairing the buildings ; and one solicitor appeared for all the defendants at the suggestion of the defendant, E. L; Held, That each defendant may tax for an answer, but that only one bill for costs accruing after filing of the answers should be taxed.</p> <p>A party is not entitled to costs before a judge at chambers on an interlocutory matter in which he did not prevail.</p> <p>No costs are allowed to be taxed for filing interrogatories unless they are filed in the clerk’s office.</p> <p>Costs for depositions are not taxable when the depositions are not admissible.</p> <p>Costs for travel and attendance are taxed as in actions at law.</p>

<p>Practice. Éguitij.. Stat. 1881, c. 68.</p> <p>By the provisions of stat. 1881, c. 68, all hearings in equity,'witli one excep-* tion, must lie had in the first instance by a single justice of the court, (§ 1), upon Whom is conferred full power to hear and decide all motions and and causes and to malre and enter the necessary Orders and decrees, (§9). The only exception is found in § 13, which authorizes the justice hearing tbe cause to report it, with the parties’ consent to the law court, if he is of the opinion that any question of law is involved of sufficient importance or doubt to justify it.</p>

ON REPORT. Petition for partition of the farm in Albion, which was owned, bj Ezra Pray at the time of his decease.

On report, on motion to set aside the verdict. Trespass upon a certain fishing privilege in Phipsburg. The writ was dated December 17, 1881. The plea was the general issue, and a brief statement, claiming that the acts done, were •authorized by a third person, who was owner of the land. The verdict was for the plaintiff with nominal damages, and this verdict the defendant moved to set aside.

<p> Practice. Meal actions. Dower. Pleadings. Betterments. </p> <p>Where the respondent to a writ of entry pleads the general issue without making a seasonable disclaimer, and it turns out that the demandant has the better title, the respondent cannot defend on the ground that he has had no notice to quit before the commencement of the action and has not ousted the ■demandant. The only question is which of the parties has the better title? Nor is it a defence that the defendant has a right to dower in the demanded premises when the dower has never been assigned or otherwise set out to him. But a demandant proving title only to an undivided portion of the premises can have judgment only for such portion, or in the language of R. S., of 1841; c. 145, § 12, for “his own particular share.”</p> <p>To entitle a respondent in such suit to set up a claim for betterments his possession must have been adverse.</p> <p>Where a husband managed and controlled an estate conveyed to his wife in 1855, living upon it with her and their children until her death in 1860 and afterwards remained in possession, Ms children continuing to toe memtoers of Ms family during a portion of their minority, and not giving Mm any notice to quit after they became of age, Ms possession, in the absence of any distinct denial of the right and title of his wife’s heirs should be regarded as permissive and in the nature of a trust for the benefit of his wife and the family, and not adverse nor of a character to enable him to set up a claim for betterments in a suit brought by one of the heirs within six years after the youngest child becomes of age, although it appears that he has appropriated all the proceeds of the place to his own use and paid all the taxes and never paid nor promised to pay rent to any one, and that he has a right to dower in the premises which has never been assigned or set out to Mm.</p>

'ON REPORT. The writ was assumpsit for money had and received, and was dated April 4, 1881. The plea was the general issue.

Ok report. The first named action is against the purchaser at an auction sale by a deputy sheriff, on a writ brought to enforce a statutory lien, of the schooner, called the Lady of the Ocean ” which the deputy had attached and sold according to the provisions of R. S., c. 81, § § 29-38. The second action is against the sheriff whose deputy made the sale. Both writs were dated September 27,1881. The report gives the declaration and plea in the first action only.

On motion to set aside the verdict and for a new trial. Trespass. The writ was dated January 5, 1882. The plea was general issue and brief statement. The verdict was for the defendant. The questions presented to the law court and the material facts are stated in the opinion. The validity of the note sued in the action against the plaintiff’s husband, in which the defendant attached the plaintiff’s property, was a material issue in this case.

<p>On report.</p> <p>Assumpsit for the amount of the following note :</p> <p>"$122.50. Canton, Maine, January 10, 1877. Six months from date for value received I promise to pay to the order of Frank E. Kidder, one hundred twenty-two and fifty one-hundreths dollars and interest. Otis Hayford.”</p> <p>On the back is written the following:</p> <p>"Holden without demand or notice. P. S. Marsh.”</p> <p>The writ was dated August 27, 1880.</p> <p>The case was withdrawn from the jury and reported to the law court with power to draw inferences as a jury might and render judgment according to the legal rights of the parties.</p> <p>The opinion states the material facts.</p> <p>cited : Malbon v. South-ard, 36 Maine, 147 ; Colburn v. Averill, 30 Maine, 310; Irish v. Cutter, 31 Maine, 536 ; Cobb v. Little, 2 Maine, 261; Brown v. Curtiss, 2 N. Y. (2 Comst.) 225.</p> <p>The sale and delivery of the note with the written endorsement made the defendant a guarantor, no more nor less.</p> <p>It is true the defendant endorsed it " holden without demand or notice.” He waived nothing then because the law does not entitle him to a demand or notice, had he not waived it, as appears by the whole current of decisions. The defendant waived notice and demand. The law says he is not entitled to either, so he waived nothing.</p> <p>The plaintiff was bound to use due diligence in collecting the note, and notify the defendant within a reasonable time after its maturity of its dishonor. Parkman v. Brewster, 15 Gray, 271 Marsh v. Day, 18 Pick. 321.</p> <p>Sixty days was an unreasonable delay after maturity before calling on the maker to pay.</p> <p>The case does not show to whom the defendant undertook to guarantee the note. Bichard v. Bartlett, 14 Mass. 279, seems to be exactly in point.</p>

<p> Griminal practice. JExceptio ns. </p> <p>Exceptions to the ruling of tlie court at nisi prius in overruling a motion Of the respondent to he discharged from custody, after the jury had disagreed and heen discharged of the case, must lie in the court of the county until final action there.</p>

<p> Partnership. Authority to dispose of partnership property. </p> <p>Five persons mutually agreed to cut and pack for sale a quantity of ice, and, after deducting all expenditures, including their own labor, from the proceeds of sales, to divide the residue among them in equal shares. Held, that this agreement created a partnership between the contracting parties. Each partner was agent for all.</p> <p>In the absence of fraud the majority of a firm can make a valid sale of ice, belonging to the firm, without the consent of the minority.</p>

On exceptions to the ruling of the court in overruling the defendant’s motion to dismiss. Assumpsit on an account annexed. The opinion states the material facts.

<p> Money had and received. Collector of taxes. Town treasurer. </p> <p>Where the collector of taxes pays the town treasurer money for Avhich the treasurer does not account either to the town or to his successor in office, and in consequence of such omissions the collector is compelled to pay to the toAVn the same amount of money a second time, he may recover the same of the treasurer who thus neglected to account in an action for money had and received,</p>

On exceptions and motion to set aside the verdict. An action to recover for supplies furnished to one Andrew J. Brown. Writ was dated September 23,1881. The only question was one of settlement at the time the supplies were furnished, in the summer and September, 1881. The former settlement of the pauper in Winn was admitted. In 1865, he moved into Lee on to a farm then bought by him, and he has evpr since resided there until he fell into want in 1881.

On report. Writ of entry to recover a parcel of land between high and low water mark in Bar Harbor. Both parties claimed under deeds from Tobias Roberts; the plaintiff under a deed dated Aug’ust 14, 1875, and the defendant under a deed dated December 27, 1868. The following is the description in the defendant’s deed.

On report. Writ of entry. The writ is dated July 11, 1881. Both parties claim title through the defendant’s husband. Th© defendant by virtue of a deed dated March 21, 1879, and the plaintiff by virtue of an attachment made March 31, 1879, and subsequent levy. The material facts are sufficiently stated in the opinion. cited: Hall v. Sands, 52 Maine, 355, and cases there cited; 14 N. Y. Supi’eme Ct.

<p>On motion to set aside the verdict.</p> <p>An action of the case to recover damages for the erection, maintenance and operation of a stationary steam engine in Princeton.</p> <p>The writ was dated May 1, 1880.</p> <p>The essential facts appear in the opinion.</p>

On exceptions and motion to set aside the verdict. An action of slander. The writ was dated February 28, 1879. The plea was general issue and the verdict was for the plaintiff, damages being assessed at one cent. The essential facts are stated in the opinion.

Bill in equity. Heard on bill, answer and proofs. The defendants were the assignees in insolvency of Palmer, .Brooks and Maddox, of Buxton. The opinion states the material facts.

<p>On report.</p> <p>Writ of entry. The plea was the general issue.</p> <p>At the trial, plaintiff introduced the following- deed of the state treasurer and offered what was admitted to be a transcript of the state treasurer’s books, so far as they relate to taxes and the payment of taxes in township No. 8, Kange 9, N. W. P. Elliotsville.</p> <p>" To all persons to whom these presents may come.</p> <p>" I, S. C. Hatch, treasurer of the state of Maine, send greeting.</p> <p>"Whereas, in obedience to the provisions of c. 6, § 46, of the Devised Statutes, in relation to the collection of taxes in unincorporated places, the said treasurer caused to be published a notice containing a list of all tracts of land lying in unincorporated places which have been forfeited to the state for state-taxes, or county taxes, which had been certified according to-law to the treasurer of state, together with the amount of such unpaid taxes, interest and cost on each parcel, and that the same would be sold at the treasury office in Augusta, on the sixth day of September, A. D. 1876, at eleven o’clock A. M. in the state paper, and a paper in the county wdiere said lands are situate, (where any such were published,) three weeks successively before the day of sale, and within three months thereof; and whereas, said list contained the fallowing described parcel of land so forfeited, situate in the county of Piscataquis, viz: 11607 acres, No. 8, Eg. 9, N. W. P. Elliotsville, upon which there was due and payable for taxes, interest and costs, the sum of forty-one forty-three one-hundredths dollars, including its proportion of the state tax for 1874, and the county tax for the same year, certified to the treasurer of state according to law.</p> <p>"And whereas, on said sixth day of September, 1876, at eleven o’clock A. M. at the treasury office in Augusta, said treasurer did sell the interest of the state in said premises to Joseph Moulton at auction for the sum of forty-one and forty-three one-hundredths dollars, he being the highest bidder therefor, and his bid being a price not less than the full amount due thereon for such unpaid state and county taxes, interest and cost of advertising, as required by law.</p> <p>"Now, know ye, that I, S. C. Hatch, in my said capacity in consideration of the premises and of the payment of the said sum of forty-one and forty-three one-hundredths dollars, the receipt whereof is hereby acknowledged, do hereby sell and convey to him, the said Joseph Moulton, his heirs and assigns for■ever, all the interest of the state by virtue of said forfeiture, in and to said premises so sold as aforesaid. To have and to hold the same, with all the privileges thereof to him the said Joseph Moulton, his heirs and assigns forever, subject to all taxes ¡assessed thereon subsequent to the year eighteen hundred and seventy-four, provided, however, that any owner or part owner thereof shall have the right to redeem his proportion of the same ■at any time within one year, by paying or tendering to the pur•chaser, or treasurer of state, his proportional part of what the ■said Joseph Moulton paid for the same, with interest at the rate of twenty per cent, per annum and the cost of conveyance, as provided in c. 6, § 48, of the Revised Statutes.”</p> <p>Signed, sealed, acknowledged and delivered.</p> <p>contended that the description in the deed was sufficient because it was the only description the treasurer could make.</p> <p>An assessment upon a whole township in solido, designating the number and range is good. Adams v. Larrabee, 46 Maine, 516. Each owner, whether in common or not, may pay for his interest in any tract of land and then is entitled to a certificate from the treasurer K discharging the tax upon the number of acres or interest-upon which payment is made.” R. S., c. 6, § 45. And if not paid the land is forfeited and may be sold.</p> <p>Now when all the owners do not pay,' what can the state treasurer do but sell and give a deed of the number of acres which has been forfeited? That is all the description he can give.</p> <p>Counsel cited: Hodgdon v. Wight, 36 Maine, 326; 35 Maine, 405</p> <p>cited: Griffin v. Greppin, 60 Maine, 270; Adams v. Larrabee, 46 Maine, 516 ; Larrabee v. Hodgkins, 58 Maine, 412; Matthews v. Light, 32 Maine, .305; Smith v. Bodfish, 27 Maine, 289.</p>

<p>B. S.r a. SI, § él. Trial justices. Bangor police court. Gity marshal.</p> <p>Trial justices, and police courts having- their jurisdiction, may try complaints for the offence described in R. S., c. 51 § 41, (evading* payment of fare on railroads) and impose the forfeiture which is there prescribed “to be recovered on complaint.” But they exceed their jurisdiction when they order a man charged with the offence to find bail, for his appearance at a future term of the Supreme Judicial Court, and to be committed for want of such bail. An officer cannot justify the execution of a mittimus which, shows such excess of jurisdiction on its face.</p> <p>A city marshal and chief of police being present and directing the execution of a mittimus by one of 1ns subordinates, and making- return thereof; as, exe-eutecl by liimself, cannot avoid tlie responsibility which he thereby assumes, but is liable to the party injured for his necessary loss of time, and the reasonable expenses of procuring his liberation on habeas corpus.</p>

ON REPORT. Assumpsit on the written promise of the defendant recited in the opinion. The writ was dated March 25, 1881, and the plea was general issue and a brief statement setting up the statute of frauds. The opinion states the material facts. The agreement is sufficient to take the case out of the statute of frauds. B,.

On report. Assumpsit upon the following promissory note. The plea was the general issue with brief statement that the Instrument declared on was the note of the Prospect and Stock-* ton Cheese Company. (Note.) $246.50. Stockton, October 19, 1878. For value received, we promise to pay S. A. Kendell, oí order, two hundred forty-six and fifty one-hundredths dollars, in •one year from date, with interest. Otis Harriman, ~) President» R. M. Irevett, !

On report. Assumpsit on the following promissory note. Bangor, January 5, 1881. For value received, two months after date, we promise to pay to the order of Ichabod Leighton one hundred dollars. [Signed.] Bowen & Emery.” The plaintiff was the administrator on the estate of Ichabod Leighton. At the trial the plaintiff put in the note and stopped. The defendants then introduced evidence against the objection of plaintiff, of the facts recited in the opinion.

<p>Bill in equity. Heard on bill and demurrer.</p> <p>The opinion states the facts.</p>

<p>ON REPORT.</p> <p>The case and material facts are stated in the opinion.</p> <p>contended that- the judgment in the action of trespass brought'by the defendant against the plaintiff’s husband and grantor, the record of that case showing that the defendants there justified under a plea of soil and freehold, and the verdict upon which judgment was rendered being not guilty, was a bar to this action.</p> <p>The effect of that judgment was to establish title in the plaintiff’s grantor at the time of the commencement of the action <of trespass, and that title the plaintiff now holds. The issue of soil and freehold concludes the defendant here from disputing her title at that date. If, therefore, the defendant would impeach the plaintiff’s title, it must be by matters arising subsequent to that time, because that judgment is conclusive upon the question of soil and freehold between the parties thereto and their privies. Arnold v. Arnold, 17 Pick. 4; Outrcim v. Morewood, 3 East. 346.</p> <p>As to -what was the matter in issue if the record does not show it, evidence aliunde may be produced. As remarks Parker, C. J., in King v. Ghase, 15 N. H. 9, "the declaration and pleadings may show épecifically what this is (the matter in issue) or they may not. If they do not the party may adduce other evidence to show what was in issue, and thereby make the pleadings as if they were special. ... It may be shown by parol evidence, if necessary, upon what ground the verdict proceeded.</p> <p>If the evidence in the former case were before the court, it would readily be seen that the title to the land in controversy was the matter in issue, and that the pivotal point of the decision was the location of the line between two contiguous properties. The reported case, Pritchard v. Young, 74 Maine, 419, is made a part of this case and definitely settles this point.</p> <p>That becomes the main question in the determination of this case. See Bigelow on Estoppel (2d ed.), 91.</p>

Ok REPORT of agreed statement of facts. The writ, dated March 2,1882, was assumpsit upon the following agreement: Garland April 17, 1877.

On report. Assumpsit by the surviving administrator on tbe estate of William McG-ilvery to recover the earnings of one-sixteenth of the ship Susan Gilmore, after the death of McGilvery, while the defendant was master, as follows : August 18, 1876, $826.32. February 1, 1877, 182.12. July 1, 1877, 830.18. February 5, 1881, Interest, 445.48. $2284.10.” The writ was dated February 5, 1881. The-plea was general issue. ■ The opinion states the material facts.

<p> Ways. County commissioners. Committee. </p> <p>A road was laid out by tbe county commissioners in the towns of Greene and Leeds; Leeds appealed to a committee and the committee affirmed the proceedings of the commissioners. Held, that Leeds cannot object to the acceptance of the report of the committee becuse they gave no notice of their hearing of parties to Greene; nor because an order of notice does not appear upon the docket, although contained in the commission; nor because one of the original petitioners for the road was made one of the committee, the person having been agreed upon by the parties with full knowledge of the fact, and no objection having been raised thereto, until at the argument before the law court.</p>

<p>On appeal.</p> <p>Bill in equity to compel the defendant to convey to the plaintiff certain premises in Letter E plantation, Franklin county. The case was heard by a single judge, and certain questions submitted to a jury, at the- September term, 1882, Franklin county, when the judge ordered the defendant to convey the premises named in the bill in accordance with the prayer of the petitioner and the defendant appealed.</p>

On exceptions and motion to set aside the verdict. Action to recover damages for injuries received by the falling of the Bradbury. Bridge (so called) in Biddeford, while the plaintiff, a school girl, was crossing December 7, 1881. The writ was dated November 21, 1882, and the plea was the general issue. The verdict was for the plaintiff in the sum of five hundred dollars, and the defendant moved to set it aside and alleged the following exceptions.

<p>On exceptions.</p> <p>Trespass q. c. The facts are stated in the opinion.</p>

<p> Practice. Pleadings. The right to open and close. </p> <p>When a plaintiff has anything to prove to make out a Ml and perfect case, if it be no more than to establish the amount of his damages, where the damages are unliquidated and not nominal or assessable by computation merely, he has the right to open and close.</p> <p>In an action for an assault and battery the defendant pleaded “son assault demesne,” the plaintiff replied “de injuria,” and the defendant was allowed to open and close, the plaintiff objecting. Held, that the plaintiff had the burden of showing the amount of damages sustained, and that depriving him of the right to open and close is cause for a new trial.</p>

On exceptions and motions. An appeal from the decision of the judge of probate admitting 'to probate the will of Mary E. Hitchcock, widow of James P. -Hitchcock.

On exceptions. The writ was dated November 13, 1878, and was returnable to the following December term of the superior court. The exceptions do not state when nor why the cause was removed to the Supreme Judicial Court, but do show that at the October term, 1882, of the last named court the defendant filed the plea given below, and the exceptions were to the rulings of the court in overruling a demurrer to that plea.

On exceptions. An action to recover damages sustained June 10, 1882, by reason of a defect in the road, leading from South Paris village to Hebron in the town of Paris. The writ was dated February 3, 1883.

<p>ON exceptions by the respondent to the ruling of the court in overruling a demurrer to the indictment.</p> <p>(Indictment.)</p> <p>"State of Maine, Lincoln, ss. — At the Supreme Judicial Court begun and holden at Wiscasset, within and for the county of Lincoln,'on the fourth Tuesday of October, in the year of our' Lord one thousand eight hundred and eighty-two.</p> <p>" The jurors for said state, upon their oath present, that Clifford Harriman, of Waldoboro, in said county of Lincoln, at-Waldoboro in said county of Lincoln, on the twenty-fourth day of July, in the year of our Lord one thousand eight hundred and' eighty-two, with force and arms, one New Foundland dog, called' ' Rich ’ of the value of one hundred dollars, of the goods and' chattels of John D. Miller, then and there in the enclosure and'' immediate care of his master being, did then and there wilfully and maliciously kill and destroy, against the peace of said state, and contrary to the form of the statute in such case made and. provided.”</p>

Bill in equity by the executor of the last will and testament of Israel Richardson against Thomas H. Richardson, Hannah Harris, Thomas Putnam Richardson, Albert Richardson, Edwina Maud Richardson, Julia Ann Horne, devisees under the will, Jesse Davis, assignee of said Hannah Harris, and the Portland Gas Light Company, to obtain the construction by the court of the fifth clause of the will which is sufficiently recited in the opinion.

On EXCEPTIONS. Petition to review a certain order and decree of the judge of the coui’t of insolvency. (Petition.) Hancock, ss. S. J. Court. In the matter of Warren G. Savage, insolvent. To the Honorable Justices of the Supreme Judicial Court.

On bill IN equity, by the executor of the last will and testament of Susan H. Buck, the deceased wife of the complainant, whose maiden name ivas Susan H. Rich, against Albert ~W. Paine and Thomas A. Rich, executors and trustees under the last will and testament of Sylvanus Rich, and Mary F. Rich and Thomas S. Rich, legatees.

<p>On exceptions from superior court.</p> <p>An indictment under ft. S., c. 17, §1, for keeping and maintaining a common nuisance.</p>

On exceptions from superior court. An indictment under E. S., c. 124, § 9, charging the respondent with keeping a house of ill fame at Portland, from May 15, 1882, till the May term of court, 1883. cited: /State v. Oarson, 66 Maine, 116; Whar. Cr. Law, § 809; Whar. Ev. § 541; Lohman v. The People, 1 Comst. (N. T.) 379 ; Oom. v. Savory, 10 Cush. 535 ; Smith v. Oastles, 1 Gray, 109; 1 Starkie, Ev. § 143; 1 Greenl. Ev. § § 459, 456, 460; 2 Phil. Ev.

On report. An action to recover damages for infringing upon tbe plaintiff’s exclusive right of fishing within certain limits on the southerly side of Cape Jellison in Stockton. The writ was dated. March 25, 1882.