Volume 76 — Maine Reports

On exceptions. An action on a bond given by Richard Boothby in his lifetime to the plaintiff, by the terms of which he was to maintain and support all the persons mentioned in his father’s will as therein directed. And the father’s will directed that his daughter Phebe and three others shall have a home and maintenance on my farm and homestead ... in the same manner that my children have been supported and educated by myself.” The will was dated June 23, 1855.

<p> Statute of frauds. Contract. Evidence. Account books. </p> <p>A promise by a third person to assume and pay a sum due to a creditor in consideration of the discharge of the original debtor, accompanied or followed by such absolute discharge, is an original and not a collateral promise, founded on a sufficient consideration, and need not be in writing.</p> <p>While books of accounts are made competent evidence by the adverse party’s notification to produce and his examination of them, they are still subject to be impeached or controlled by evidence that the entries were not made in accordance with the directions given by an agent, whose books they purported to be, and what he said at the time of the reception of merchandise, credited upon the books, is to be regarded as part of the res gestee relevant upon the question of the authenticity and value of the books as evidence. But declarations respecting those entries, not accompanying the making of the entries or of any of the transactions relating to them, are not admissible against his principal.</p>

On report. Replevin of a horse brought against a constable who had attached it as the property of James Newcomb, on a writ in favor of Carnillus K. Johnson. The plaintiff claimed title under the instrument recited in the head note, as he had been paid no part of the purchase money.

<p>On exceptions.</p> <p>Petition for the appointment of commissioners to ascertain and determine the line between the towns of Monmouth and Leeds. The facts are sufficiently stated in the opinion.</p> <p>cited: Outlmite v. Porter, 13 Mich. 533 ; Goudy v. Hall, 30 111. 109 ; Wort v. Finley, 8 Blackf. (Ind.) 335; Webster v. Reid, 11 How. (U. S.) 437 ; 6 Wait’s Actions and Defences, 805, 806 ; Freeman, Judgments, § 117; James v. Smith, 2 S. C. 183 ; Morris v. Halbert, 36 Tex. 19 ; Pen. B. B. Go. v. Weeks, 52 Maine, 456; Ware v. Hunnewell, 20 Maine, 291; Hathaway v. Persons unknown, 32 Maine, 136.</p> <p>contended that the action of the court in the former cases on petition of Leeds v. Monmouth and of Monmouth v. Leeds, before this court in Androscoggin county, was binding upon the parties here ; because it is a well settled principle of law that where a matter has been once determined by judgment or decree of a court of competent jurisdiction between the same parties or their privies it is binding until reversed by proceedings instituted for that purpose, citing tbe Duchess of Kingston case, 20 Howell’s St. Tr. 538 ; Sawyer v. Woodbury, 7 Gray, 499 ; Walker v. Chase, 53 Maine, 258.</p> <p>The petitioners have had their day in court. If aggrieved at the judgment of the court dismissing their former petition, in Androscoggin county, they should have alleged exceptions. Having once chosen a legal venue they ought not to be allowed to select a new one for no better reason than that they hoped for a better result.</p> <p>The record shows that in the former case but two commissioners were appointed " by agreement between the selectmen” of the two towns. Where both parties to a cause, for the purpose of saving expense, agree upon the number and the members of a commission, surely there can be no legal objection to the constitution of the commission.</p> <p>Counsel further ably argued other questions presented by the case.</p>

<p>On exceptions from the superior court.</p> <p>The facts are stated in the head note and opinion of the court.</p> <p>cited : Hathaway v. Russell, 16 Mass. 476; Smith v. Stearns, 19 Pick, 22; Chipman v. Fowle, 130 Mass. 354; Peirce v. Bent, 69 Maine, 386.</p> <p>The case shows the writ to be against Dennis W. Clark et als. severally, as alleged trustees, and not against any firm of which Clark is a member.</p> <p>I. If Clark is chargeable at all, it is only on account of the §607.58, for ivhioh. his firm, composed of himself and Ashbel Chaplin, was indebted to the principal defendant, and the firm not having been summoned, Clark as a partner thereof should not have been charged. Warner v. Perlcins and Tr. 8 Cush. 518.</p> <p>II. At the time of service on Clark, he was the payee in a note for §550.00 given by principal defendant to him, for which he held- bonds as collateral, and which note he had discounted at the bank by indorsing it, and thereby became liable to see the same paid at maturity. If he had not discounted the note, he could have offset the same in this proceeding against his firm’s said debt, even though the trustee process had been against his firm. Eaton v. McKown, 34 Maine, 510.</p> <p>Had the principal defendant sued its account against Clark alone, as plaintiff has done, he might have sued the note when it fell due, and offset the judgments or executions, and ought not to be put in a worse position by this suit. It should be competent for the parties to do voluntarily what the law would accomplish for them if appealed to. Houghton v. Houghton, 37 Maine, 72.</p> <p>The indebtedness still continued, and in an equitable proceeding like the present, Clark ought to be at liberty to avail himself of it in payment of his firm debt as against the plaintiff. Boston Type Foundery Oo. v. Mortimer, 7Pick. 166 ; Smithy. Stearns, 19 Pick. 20-</p> <p>III. The bonds held as collateral for the note, cannot be held on trustee process. Smith v. K. P. B. B. Oo. and Tr. 45 Maine, 547 ; Bowker v. Hill, 60 Maine, 172.</p>

<p>On exceptions to the rulings of the presiding justice in. sustaining a demurrer to the following declaration.</p> <p>(Declaration in writ.)</p> <p>"In a plea of the case, for that the said, plaintiff being a good, true and faithful citizen of this State, and having behaved and conducted herself as such from, her nativity to the present time, and so among her neighbors as well as others was known and reputed. Yet the said defendants, not ignorant of the premises, but contriving and maliciously intending to hurt, wound and injure the plaintiff, and her unjustly to vex, molest and disturb, and to cause her to suffer punishment and to be fined, and also imprisoned for a long space of time, and thus to be deprived of her liberty, and thereby to impoverish, oppress and wholly ruin her; did at Portland, in the county of Cumberland and State of Maine, on the second day of January, A. D., 1883,-maliciously and wickedly conspire, combine, confederate and agree together amongst themselves to falsely accuse, and by means of false testimony, to procure the plaintiff to be indicted and convicted of the crime of maintaining a common nuisance, an indictable ■offence by the laws of the State of Maine, and punished by a fine and imprisonment; and did then and there, at the January term of the superior court, within and for the county of Cumberland, held at Portland, aforesaid, on the first Tuesday of January, A. D., 1883, by false, fabricated and perjured testimony, accuse •the said plaintiff of the crime aforesaid before the grand jury of the county aforesaid, whereby said grand jury returned into ¡said court a certain bill of indictment in words and figures as ■follows, viz.</p> <p>"Which said indictment the court aforesaid caused to be read, taucl caused said plaintiff to answer thereto in said court before a jury of the court aforesaid, duly impanneled to try said plaintiff ■on said indictment procured as aforesaid, and said plaintiff was (put on her trial on said indictment in said court on the nineteenth -day of January, aforesaid, and the said defendants then and "there at said trial before the court and jury aforesaid, gave said false, fabricated and perjured testimony against said plaintiff, .and in support of the allegations contained in said indictment procured as aforesaid and by means of said false, fabricated and perjured testimony given as aforesaid before the court and jury aforesaid the plaintiff was by the verdict of said jury found guilty of the crime charged in said indictment, and the said court thereafterwards on motion of said plaintiff and a hearing thereon, set aside the verdict of the jury aforesaid because of the false, fabricated and perjured testimony given by said defendants at the trial as aforesaid, and thereafterwards the county attorney, who prosecutes for the State of Maine within and for the county of Cumberland, entered on the records of said court a nolle prosequi to said indictment, as by the records and proceedings remaining in said court appears.</p> <p>"By means of the premises aforesaid and the said false, fabricated and perjured testimony given in said court as aforesaid, the plaintiff has suffered great anxiety and pain of body and mind, and has been forced and obliged to lay out and expend divers sums of money in the whole amounting to a large sum of money, to wit, six hundred and fifty dollars, in and about defending herself in the premises, and has been greatly hindered and prevented by reason of the premises from transacting her lawful and legal affairs for the space of twenty-six days, and also by reason and means of the said premises she, the plaintiff, has been, and is, otherwise greatly injured in credit and circumstances. To the damage of the said plaintiff, (as she says) the sum of fifteen thousand dollars.”</p> <p>The allegations in the declaration are such as show that the act complained of was an illegal act and unlawfully done and therefore malicious. Page v. Cushing, 38 Maine, 523.</p> <p>In a legal sense any act, done wilfully and purposely to the prejudice and injury.of another, which is unlawful, is against, that person malicious. Com. v. Snelling, 15 Pick. 337 ; Wills v. Hoyes, 12 Pick. 324; Mitchell v. Wall, 111 Mass. 492; Humphries v. Parker, 52 Maine, 502; Pullen v. Glidden, 66 Maine, 202.</p> <p>This action is brought to recover damages caused by the perjury of the defendants. The constitution Art. 1, § 19, provides that "every person for an injury done him in his person, reputation property or immunities, shall have a remedy by due course of law and right and justice shall be administered freely and without sale, completely and without denial, promptly and without delay.”</p> <p>The 5 Eliz. c. 9, made perpetual by 29 Eliz. chapter 5, § 6, enacted that when any person shall be convicted upon the false testimony of witnesses; that upon every reversal of such conviction the parties grieved may recover his or their damages against all and every such witness.</p> <p>The law when .properly administered gives redress for all injuries caused by the wrongful acts of others, and this ancient statute was enacted for that purpose and it is now undoubtedly common law with us.</p> <p>As to the effect of entry of nol.pros. see : Brown v. Rcmdcill, 36 Conn. 56; Swift’s Digest, Yol. 1, p. 491; Shaw, C. J., in Barker v. Fareby, 10 Cush. 281; Sherwood, C. J., in Mayer v. Walter, 64 Penn. 286 ; Brook v. Oarpenter, 3 Bing. 297 ; Jones v. Given, Gilbert’s Cas. 185 ; Gilbert v. Fmmons, 42 111. 143; Ghapman v. Woods, 6 Blackf. 504; Moulton v. Beecher, 15 N. Y. S. C. 100; Briggs v. Burton, 44 Yt. 143 ; Shock v. McGhesney, 4 Yeates, 507 ; Kelley v. Sage, 12 Kan. 110; Marbourg v. Smith, 11 Kan. 554; Morgan v. Hewes, 2 T. B. 225.</p> <p>cited: Parker v. Hunting-, ton, 2 Gray, 124; Bannehey v. Woodsum, 100 Mass. 195; Gibson v. Waterhouse, 4 Maine, 226 ; Payson v. Oaswell, 22 Maine, 212 ; Humphries v. Parker, 52 Maine, 502 ; Parker v. Farley, 10 Cush. 279; Bacon v. Towne, 4 Cush. 217; Brown v. Lakeman, 12 Cush. 482 ; Willington v. Stearns, 1 Pick. 497 ; Bennett v. Bavis, 62 Maine, 544; Brown v. Webber, 6 Cush. 570.</p>

On report on agreed statement of facts. These are actions of assumpsit severally brought against the defendant as a devisee of John True, late of Poland, Maine, under the provision's of E. S., c. 87, § 16, as amended by stat. 1872, c. 85. The date of the writs in the first two actions is March 28, 1883, and in the third action, March 30, 1883. The plea was the general issue in each case. The opinion states the facts.

On exceptions and motions. Probate of the will of William F. Jones late of Bowdoin. The jury found that the testator was of sound mind but that the will was procured by undue influence of the legatee. The head note and the opinion state the material facts.

<p> Removal of causes. Practice. </p> <p>Suits in equity, not related in any way to the provisions of the bankrupt law, in which the only effective relief sought is an injunction to stay proceedings in an action pending in the state court and prevent the levying of an execution issuing therefrom, are not removable to the circuit court of the United ■States on petition of the plaintiff in the action at law before injunction issued.</p> <p>Exceptions allowed by the presiding justice, to his orders refusing a petition for removal of a suit into the circuit court of the United States, are to be' considered and the questions of law raised determined by the law court.</p>

<p> Indictment. Perjury. Constitutional law. R. 8., c. 122, § o. </p> <p>An indictment in wMcii the defendant is charged with haying committed the crime of perjury “ by falsely swearing to material matter in a writing signed by him,” is insufficient, even after verdict of guilty.</p> <p>The legislature cannot make valid and sufficient an indictment in which the accusation is not set forth with sufficient fullness to enable the accused to know with reasonable certainty what the matter of fact is, which he must meet, and enable the court to see, without going out of the record, that a crime has been committed.</p> <p>The form of an indictment for perjury prescribed in R. S., c. 122, § 5, is not sufficient to meet the requirements of the constitution.</p>

On exceptions. Trespass. The writ was dated December 23, 1879. The [plea was the general issue with brief statement.

<p>On report.</p> <p>Assumpsit on an account annexed for lumber.</p> <p>In addition to the facts stated in the opinion the report states : " The fact that three hundred and sixteen logs more came through the boom in 1873 than were surveyed could have been ascertained by the plaintiff, had he consulted the books of the boom, which are kept open to inquiry and inspection. . . . The plaintiff did not consult the officers of the boom, or its books, in relation to the logs of 1873, or for any purpose, and had no suspicion of any error or omission until in the year 1877.”</p> <p>cited: Ware v. Otis, 8 Maine, 386; Stevens v. Bell, 6 Mass. 339; Lawrence v. McOalmont, 2 How. 426; 2 Smith’s Lead. Cas. (5th ed.) 291; Middlesex Bank v. Minot, 4 Met. 325 ; White v. .Platt, 5 Lenio, 269; Taylor v. Bates, 5 Cowen, 376; Ratlibun v. Ingalls, 7 Wend. 320; Sheridan v. Ireland, 66 Maine, 65; R. S., c. 81 § 96; Penobscot R. R. Go. v. Mayo, 65 Maine, 569 ; Same v. Same, 67 Maine, 470; Gerry v. Dunham, 57 Maine, 334; Burdick y. Garrick, 5 L. R. Ch. App. 241; Davis v. Ooburn, 128 Mass. 377 ; Olark v. Tiicomb, 42 Barbour, 122; Angelí, Lim. 170; Atlantic Nat. Bank v. Harris, 118 Mass. 147; Jones y. McDermott, 114 Mass. 400; Bacon v. Rives, 106 IT. S. 107; Lancey v. Maine Oen. R. R. Co. 72 Maine, 39 ; Cunningham v. Foster, 49 Maine, 69.</p> <p>contended that the judgment in the case reported upon by referee concluded the plaintiff, and he cannot maintain this suit. That whole lumber transaction was a unit of contract, and the lights of the parties under it were settled by the referee. The case is in principle the precise case of Lancey v. M. C. R. R. Co. 72 Maine, 34.</p> <p>The statute of limitations is a bar to the suit; the question is whether the defendant was liable to an action, and if so whether he fraudulently concealed the cause thereof. Counsel contended that both questions should be answered in the negative. When these logs were received they were in part payment of the indebtedness of the plaintiff to the defendant for advances for which he has never been fully paid. So that literally he was not liable to a suit for the logs.</p> <p>There was no fraudulent concealment. The defendant took all the logs and the plaintiff knew it. The logs were his by lien, and by special agreement. Given v. Whitmore, 73 Maine, 374; Penobscot R. Co. v. Mayo, 65 Maine, 566; S. C. 67 Maine, 470; Rice v. Burt, 4 Cush. 208; Cole v. McGlathry, 9 Maine, 131.</p> <p>The plaintiff had the same means that defendant had to ascertain the whole number of logs. There is no fraudulent concealment when the means of detecting any errors is within the reach of plaintiff by inquiry of the officers of the boom, or examination of the books. 3 Mass. 201; McKoion v. Whitmore, 31 Maine, 448 ; Rouse v. Southard, 39 Maine, 404 ; Nud'd v. Hamblin, 8 Allen, 130; Wells v. Child, 12 Allen, 333; Atlantic N. Bank v. Harris, 118 Mass. 147 ; Wood v. Carpenter, 101 IT. S. 135.</p>

On exceptions. This was an action of trespass guare clausum fregit for entering plaintiff’s close on the east side of Jordan’s river in Lamoine and carrying away mussel-bed manure. The plea was the general issue and a brief statement denying the plaintiff’s title and alleging title in the state. The locus was a mussel-bed in front of the plaintiff’s upland.

<p>Game law. Deer. Stat. 1878, c. SO, § 8.</p> <p>The transportation of tlie hide or the carcass of a deer from place to place in this State is not unlawful at any time, if the deer was killed at a time when it was lawful to do so.</p>

<p> Mortgagor and mortgagee. ■ Tax title. Betterments. </p> <p>B conveyed land by a mortgage deed to L in 1862, and L’s assignee in bankruptcy-conveyed the same by deed to P in 1880; again, B conveyed the same land by deed to S in 1868, and S conveyed the same to D in 1871; prior to the conveyance to P the assignee in bankruptcy brought suit against D, declaring on the mortgage, and obtained conditional judgment, and then a writ of' possession, upon which formal possession was delivered to him; Held in a real action by P against D that P was entitled to judgment, and that the-relation of the parties appeared to be that of mortgagee and mortgagor.</p> <p>It is the duty of one in possession under a mortgagor’s title to pay the taxes,, and he cannot set up a tax title obtained through his own neglect to pay the: taxes in defence to an action for possession brought by one holding the title of the mortgagee.</p> <p>All improvements made by one holding a mortgagor’s title enure to the benefit of the mortgagee or those holding under him.</p>

On report. Action of dower. The plea set out the decree of the court on the libel of plaintiff’s husband for a divorce by which, the defendant claims, she was barred of her dower. The opinion states the facts. Stilphen v. Houdlette, 60 Maine, 447, is not this case. In that case there were two trials, more than six years apart. Here there was but one trial. If it had been presented to a jury with the same result the verdicts would have been simultaneously rendered.

On exceptions and motion to set aside the verdict. The opinion states the case and material facts. cited: White v. Carr, 71 Maine, 555; Hamilton v. Smith, 39 Mich. 222; State v. Bartlett, 47 Maine, 396; Day v. Moore, 13 Gray, 522; Tyler v. Dyer, 13 Maine, 46; Whart.

On report. Complaint for flowage of plaintiff’s land in Deblois on the Narragaugus river by water drawn from the defendants’ dam across the river above, at Beddington Lake, during the summer months when the natural flow of the stream was not sufficient to overflow the plaintiff’s land. The complaint did not allege that the mill and dam were erected upon the lands of the defendants. contended that the words flow” and flowage” in the mill act did not mean simply to flow back.

On report. This action was tried at the April term, 1880, before a jury who brought in a verdict for nine hundred eighty-seven dollars and sixteen cents, and went to the law court on the defendant’s motion and exceptions. The defendant died September 7, 1880. The certificate from the law court was received December 24, 1880, and the death of the defendant was suggested in vacation, December 29, 1880.

On exceptions. An action of the case to recover damages alleged to have been sustained by the plaintiff by the negligence of the defendants. The opinion states the case. The verdict was for the plaintiff in the sum of twenty-five hundred dollars.

On report. The opinion states the case and material facts. contended that the defendant, if tenant of anybody, was the tenant of E. J. Cushing, plaintiff’s son, and that Cushing was a tenant at will of the whole premises, and his tenancy terminated by mutual agreement between him and the owner. The termination bf Cushing’s tenancy terminated that of the defendant who held under him. Coburn v. Palmer, 8 Cush. 126.

<p>On report.</p> <p>Assumpsit to recover one-half of the sum of nine hundred seventeen dollars and sixty-eight cents, alleged to have been paid by the plaintiff on a judgment rendered against the plaintiff and defendant, jointly.</p> <p>The writ was dated July 9, 1877.</p> <p>The plea was the general issue with the following brief statement r</p> <p>"And for brief statement of defence, the defendant not waiving his plea of general issue, by him in pleading pleaded, but insisting on the same, saith that the plaintiff his aforesaid action-against him ought not to have and maintain, because he says, the money alleged by the plaintiff to have been paid by the plaintiff to the use of the- defendant, if paid, was paid in discharge of a debt, contracted by the plaintiff’ and defendant as co-tenants of land and co-partners in business by them jointly conducted in connection with the use of said land, and that there are still remaining other affairs of the said co-partnership unsettled, and that a recovery of the plaintiff in said action, and payment of the-judgment would not close the affairs of the said firm.”</p> <p>The facts as found by the court are stated in the opinion.</p> <p>The case was twice argued.</p>

On exceptions from the superior court. Indictment. The case and material facts are stated in the opinion. The court misstated the law in instructing the jury that: The law only requires that degree of certainty in the minds of jurors before rendering a verdict of guilty, as would exist in their minds in coming to a conclusion on matters of grave interest and importance to themselves.” Wharton, Crim. Law, § 707 ; Bishop, Crim.

On report. An action against a deputy sheriff for false arrest and imprisonment. The writ was dated September 7, 1881. The plea was the general issue, and brief statement wherein the defendant claimed justification under the following complaint and warrant which was placed in his hands for service : State of Maine. Washington, ss.

On exceptions. Trover for tbe alleged conversion of a horse and wagon. The ■defendant claimed title to the property under a mortgage, dated -October 4, 1881, and duly recorded October 20, 1881. The verdict was for the defendant.

On exceptions by both parties and motion of the plaintiff to set aside the verdict. Assumpsit on a promissory note signed by both of the defendants, dated July 23, 1877, for $800. The plea was the general issue.

On exceptions and motion to set aside the verdict. An action to recover damages for causing the plaintiff’s arrest in the Province of New Brunswick, and his imprisonment for two days, when on application to the court there he was discharged because he was at the time privileged from arrest, as he was returning home from Woodstock, New Brunswick, where he had been attending .court as a witness. The plea was the general issue.

On report. An action to recover damages for personal injuries received while in the employ of the defendant.

On exceptions and motion to set aside the verdict. (Declaration.) ”In a plea of trespass, for that said defendants, at Brunswick, in said county of Cumberland, on the twenty-fifth day of October, A. D. eighteen hundred and eighty-one, with force and arms, assaulted the said Charles A. Strout, and then and there, beat, bruised, wounded and ill-treated him, and then and there struck him, said Charles, a violent and dangerous blow, upon the left eye, with a dangerous weapon, to…

On report. An action against the selectmen of Watervillefor unreasonably and wilfully omitting to place the name of the plaintiff on the voting list and unreasonably, wilfully and oppressively refusing so to do, or to permit him to vote at the September election of 1882. The writ is dated September 23, 1882. The plea was the general issue. By the terms of the report the court were to render such judgment as may be proper.

On report. The case and material facts appear in the head note and opinion. The case has once before been considered by the law court and is reported in 73 Maine, 318. The whole issue (all issues) must be determined by the court of original jurisdiction in the first instance, to furnish sufficient foundation for an appeal, and until such court renders a final judgment, the jurisdiction of the appellate court cannot attach.

Bill in equity. Heard on bill, answer and proofs. One question presented in the case involved the construction of a deed of trust which is thus set forth in the bill: Complainant says that on or about the twenty-seventh day of February, A. D. 1879, by his deed then executed, acknowledged and delivered and since recorded, he conveyed for the reasons and purposes hereinbefore and in said deed given to his said children upon the trusts therein expressed and implied, all the…

OÑ REPORT. Assumpsit by the guardian of an insane person, against the ¡administrator of his father’s estate. Richard Hunnewell died •October 30, 1879; .the defendant was appointed administrator, February 3,1880, and gave notice of his appointment, February ’9, 1880. Alden S. Hunnewell has been insane ever since his •father’s death, but had no guardian until June 6, 1882, when Mr. Rowell was appointed.

On report. Complaint for flowage under E. S., c. 92. The description in plaintiff’s deed of the land flowed was as follows: Also one other lot or parcel of land situated in Wayne, and bounded as follows, viz: Beginning on the easterly side of the aforesaid county road, leading from Orren M. Blaisdell’s dwell-.. ing house to Wayne village, at the northerly corner of my land, on the line between me and Crosby Gordon; thence easterly on said line to Wilson pond; thence…

On report. Writ of entry. The tenant went into possession May 10, 1880, and the writ was dated October 3, 1881. If the demand-ant was entitled to mesne profits the report provided that they were to be assessed at the rate of eighteen dollars a year between those dates. The other material facts are stated in the opinion. Plaintiff cannot recover for mesne profits in this action: 1. Because he has not set forth any claim for them in his declaration.

On report. Assumpsit on promissory note recited in the head note. The writ contained a count on the note and another for money had and received, and was dated July 17, 1879. By the terms of the report the law court was to render such judgment as the law and evidence, legally admissible, required. The opinion states the material facts.

On exceptions. Trespass quare clausum. The verdict was for the plaintiff for ten dollars, and the defendant alleged exceptions to the allowance of an amendment, as fully stated in the opinion.

<p>Counsel fees in capital eases. B. 8., c. 134, § 14.</p> <p>Where two or more persons are jointly indicted for a capital felony, and different cousel are assigned them by the court, and they are by order of the court tried jointly, the court cannot allow as compensation for all the counsel a sum exceeding one hundred and fifty dollars for any one trial, including services upon appeal or upon exceptions before the law court.</p>

On exceptions from superior court. This is an action on the case brought under stat. 1872, c. 63, § 4, and generally known as the civil damage act. The writ was-dated November 15, 1882.

On report. The writ was dated December 30, 1882. The plea was the general issue. The opinion states the material facts. cited; Aslily v. White, 2 Ld.

On exceptions. This was a writ of error, and when the action came up for a hearing, the defendants filed a motion to dismiss the action. The court granted the motion and ordered the action dismissed, and the plaintiff alleged exceptions to that ruling, and made the writ and motion to dismiss a part of the exceptions. [Writ.] • State of Maine, Kennebec, ss. To the sheriffs of our respective [l. s.] counties, or either of their deputies, Greeting.

<p> Deceit. False representations by vendor as to appraised value of the property. </p> <p>False and fraudulent representations by the vendor to the vendee concerning the appraisal of the property by appraisers, appointed by the probate court, as to the value placed upon it by the appraisers, are not sufficient to sustain an action of the case for deceit in the sale or exchange of property.</p>

On exceptions and motion to set aside the verdict, by the •plaintiffs.

On motion to set aside the verdict from the superior court. This is an action on the case for injuries alleged to have been received by the plaintiff, while an employee of the defendant corporation. The jury returned a verdict for the plaintiff in the sum of four hundred dollars.

On report. Action on a bond given by Leavitt as principal and the other defendants as sureties in compliance with the provisions of E. S., 1871, c. 97, § 3. The trial in the filiation proceedings was had on the tenth day of the March term, 1882, and resulted in a verdict of guilty. On the twelfth day of the term the court convened at an earlier hour than usual, and adjourned finally before nine o’clock in the forenoon.

<p> Contract. Damages to personal property, rights of special and general owners to. </p> <p>A mower company, the owner of a lot of mowing machines, consigned and forwarded them to D, By virtue of a contract under which D was to pay the freight on them and sell them for a specified commission and account to the company for them at a specified price. Held:</p> <p>1. This contract did not change the title in the machines.</p> <p>2. D had such special property in the machines as to enable him to maintain an action against a carrier for a wrongful act to the property, in which he would recover, not only his own damages, but such as accrued to the company as general owners.</p> <p>3. While D might assign his own interest in the judgment to be recovered in such action, he could not assign that which belonged to the general owner.</p> <p>4. The neglect or refusal of the company to commence and prosecute the action for such damage, is not a waiver of their claim, and they are not estopped from asserting it.</p> <p>5. A sale of the property after the damage had accrued would not transfer the claim for damages.</p> <p>6. There can be no division between the company and D, of the damages to be recovered in D’s action, until the same have been asssessed.</p> <p>7. The refusal of the company to prosecute the action makes it equitable that the expenses of that litigation should first be deducted from the judgment recovered, and other expenses, if any, for which D would have a lien, and the balance divided according to their several interests.</p>

On report. This was an action of scire facias by the executrix of the last will of John Euggles, against the sureties on a bail bond given in a civil action brought by John Euggles in his lifetime .■against Moses Call. That writ was dated September 12, 1873. It commanded the officer to attach property to the amount of two thousand dollars and the ad damnum was placed at twelve hundred dollars.

On exceptions to the ruling of the court that the following bill in equity was not sustainable upon the facts therein stated. State of Maine.

On report. Bill to redeem inserted in a writ dated March 1, 1883. The notice of foreclosure was given in August, 1878, and the legality of the foreclosure was the only question at issue before the law court.

<p> Evidence. Eright of horses. </p> <p>In an action for an injury to tlie plaintiff alleged to have been caused by the fright of her horse, by steam escaping from the defendant’s mill, situated on the margin of the public highway; Held, that evidence was admissible to show that other horses, ordinarily safe; when driven by it on other occasions a short time before and after, when the construction and use of the mill were the same as when the plaiutiff was injured, were frightened by it.</p>

On exceptions. Two petitions for review. At nisiprius the presiding judge made the following rulings and decisions which were put in writing by him and filed in the case, viz. . . At the March term 1879, Charles Titus, the respondent’s intestate then in full life, was defendant in a replevin action brought by the petitioner Berry for a horse fifteen years old and not worth over fifty dollars.

On exceptions. This was an action of assumpsit; the principal defendant was defaulted, and the question reserved for the full court was the amount for which the trustee should be charged. The alleged trustee disclosed an assignment to him by the principal defendant, dated November 14, 1878, under the provisions of c. 70, of the E. S. of 1871.

On report. Ari action against a sheriff for the alleged malfeasance or misfeasance of a deputy in the service of an execution. The writ was dated September 8, 1877. The plea was the general issue. After the testimony was taken at the trial the case was withdrawn from the jury, by consent, and reported to the law court, who were to draw inferences as a jury might, and render judgment according to the legal rights of the parties. The material facts are stated in the opinion.

<p> Fire insurance. Sale of property. </p> <p>A policy of fire insurance provided that if the building was sold or transferred, the policy would be rendered void, unless ratified to the assignee thereof, by the written consent thereon, signed by the president and secretary, or any two directors of the company. FLeld, that a sale of the buildings without a transfer of the policy, rendered the policy void.</p>

On report. Assumpsit on the following note : §209. Wellington, January 24, 1871. For value received I promise to pay Harrison Dorr, or his order, as guardian of Warren Dorr and Eosetta Dorr, two hundred and nine dollars, the first day of January, A. D. 1874, with interest annually. David Davis, Witness, E. F. Harvey. Luther Davis.” [Stamp, 15 cts.] Indorsed, Harrison Dorr.” Writ dated August 8, 1874.

On exceptions. An appeal from the decree of the judge of probate. The opinion states the case. cited: 1 Grreenl. Ev. §§ 103, 104: 1 Whar. Ev. § 208; Waldron v. Tuttle, 4 N. H. 378 ; Vowles v. Young, 13 Yes. 146; Goodright v.. Moss, Cowper, 594; Tyler v. Flanders, 57 N. H. 626 ; Haddock v. B. & M. Tí.

On exceptions. This was an action for money had and received against the defendant as administrator on the estate of Monroe Hill, deceased, brought under the statute, appeal haviug been taken from the report of the commissioners of insolvency on said estate.- The writ contained four classes of claims, the first of which was for breach of covenant in the deed of Monroe Hill to her, by reason of outstanding mortgages, one of which from George S. Bixby to Ann Lindsay for two…

<p>On exceptions and motion in arrest of judgment.</p> <p>Indictment for the murder in the summer of 1883, in Bath, of William Lawrence, a night watchman of that city. The jury returned a verdict of murder in the first degree.</p> <p>The opinion states the questions presented to the law court and the material facts relating thereto.</p> <p>contended that stat. 1883, c. 190, requiring the foreman of the grand jury, in returning into court before the jury was discharged a list of wjtnesses who testified before the grand jury, should state the cases in which each witness testified, was mandatory; and the failure so to do could be taken advantage of by motion in arrest. Com. v. Fdwards, 4 Gray, 1.</p> <p>Counsel argued that a list returned by the county attorney was not a sufficient compliance with the statute. That officer is not named in the statute requiring the list.</p> <p>The grand jury might have examined witnesses of their own motion, in the absence of the county attorney, or without his knowledge. In that event, his certificate would be untrustworthy.</p> <p>The statute requires the list to be returned into court before the jury is discharged. This requirement is plainly for the purpose of having the presence of the’jury to correct possible errors in the list. But the jury was discharged on the fourth day, and the county attorney furnished his list on the sixth.</p> <p>The list returned by the foreman was insufficient. It was after the arraignment and nine days after the discharge of the jury.</p> <p>If this be' deemed a compliance with the statute, then the very object of the statute is defeated.</p> <p>The third and fourth requests should have been given. The instruction was important as measuring the respondent’s belief that he was being unjustifiably attacked. If the shooting by Kingsley was unjustifiable then Wilkinson had a legal right to draw his revolver and no inference of malice could be allowed from the act.</p> <p>Upon the fifth request, counsel cited: Wharton’s Homicide, § § 241, 981, 537; Mockabee v. Gom. 78 Ky. 380; 1 East. P. C. 303 ; and upon the sixth request, 23 Ind. 231.</p> <p>Counsel contended that the seventh request was material and that no part was given.</p>

<p>On report on agreed statement of counsel.</p> <p>The opinion states the case and material facts.</p>

On report. Scire facias. The defendants were defaulted and the case reported to the law court with the agreement that if the court should be of the opinion that the defense offered, if proved, afforded a legal defense to either of the defendants, the default should be taken off and the case stand for trial.

On REPORT. Indictment for the murder of Francis A. Smith by shooting and mortally wounding, July 29, 1882, within the limits of Fort Popham, a fort of the United States, from the effects of which shooting and wounding death ensued at Phipsburg, outside the limits of the fort, August 13, 1882. The defendant pleaded in abatement to the jurisdiction of the court.

<p>On eeport from the superior court.</p> <p>An action on the case against the owners of building No. 50, Union street, Portland, for damage done to the plaintiff’s goods and merchandise stored on the first floor of the building, April 22, 1881, by water escaping from the water-fixtures on the second floor occupied by Jury and Thompson, for the purpose of manufacturing shoes.</p> <p>The writ was dated June 10, 1881. The plea was the general issue.</p> <p>The opinion states the material facts.</p> <p>We put the liability of defendants upon three grounds: (1) Negligence. (2) Nuisance. (3) Trespass.</p> <p>We claim that the facts show the defendants to have undertaken to put the water-fixtures into a safe condition; to keep them- there; and neglected to do either. They did not lease, as they undertook to do, safe fixtures. They did not restore them to, and maintain them in, a safe condition, as they undertook tov do, — as indeed they not only undertook, but commenced to do. They knew the state they were in from the noisome, foul, obstructed water-closet, to the old, bent, clogged waste pipe, and the faucet that could not be closed, and they knew that these fixtures were the direct conductors of the water of Lake Sebago to the delicate goods of the plaintiff; and knowing all this they consented to the natural consequence — an overflow. If this be not negligence, bordering upon the culpable, we are at a loss to know what, in an action of tort, would be entitled to the term. We do not need to repeat the testimony here to establish this ground of their liability, which is abundantly supported by the following cases. Burrows v. M. G. (& O. Co. L. It. 7 Ex. 96; Toole v. Beckett, 67 Maine, 544.</p> <p>We had no more control of the pipes in Jury and Thompson’s room, than had plaintiff of the roof in this last case. Priest v. Nichols, 116 Mass. 401 and cases.</p> <p>We do not deny that the fixtures were let to tenant; but unlike the landlord in McCarthy v. Savings Bank, 74 Maine, 321, this landlord let unsafe fixtures, assumed to keep them safe, and failed, or neglected to do so. Payne v. Bogers, 2 H. Black. 350; Lowell v. Spaulding, 4 Cush. p. 279 ; Milford v. Holbrook, 9 Allen, p. 21; Freidenburg v. Jones, 63 Ga. 612.</p> <p>Nuisance. There is no doubt that equity would have enjoined the use of Sebago with such fixtures, had plaintiff known, and shown to a court, the facts as they existed. Story, Equity, § § 927, 928. As it did the storing of gunpowder. Crowder v. Tinkler, 19 Ves. 617; and the storing of merchandise in an unsafe building. Mayor, etc. of London v. Bolt, 5 Ves. 129.</p> <p>Plaintiff did not know of the facts; but if he could have claimed an injunction against such a source of damage in futuro, can he not now be remunerated in this action ? These water pipes were, if not an existing, at least a potential nuisance; and the landlord who leases such a nuisance is liable for its results. House v. Metcalf, 27 Conn. p. 640; Wood, Nuisance, pp. 6, 102 ; Bacon’s Abridg. vol. 7, p. 232 and cases ; Anonymous, 11 Mod. 8; Booth v. Wilson, 1 B. & A. 59; Gilbert v. Beach, 4 Duer, 423; Fish v. Bodge, 4 Denio, 311; Panton v. Holland, 17 Johnson, 92; Owings v. Jones, 9 Md. 108; Pickard v. Collins, 23 Barbour, 444; Brown v. Bussell, Law Report, 3 Queen’s Bench, 261; Taylor’s Landlord and Tenant, § 175 and 175 A.; Shipley v. Fifty Associates, 106 Massachusetts, 200; Looney v. McLean, 129 Mass. 33 ; Homan v. Stanley, 66 Penn. 464.</p> <p>Our declaration is sufficient for this cause of action. Horcross v. Thoms, 51 Maine, 503.</p> <p>Trespass. This word does not fully express our claim. We do not mean that defendants entered our premises, but that they brought a dangerous agency in an unsafe receptacle upon their own premises, for their own advantage, and failed to restrain it from escaping and injuring us in our premises. The general principle, for whose application we are contending, is thus stated.</p> <p>" The person whose grass or corn is eaten down by the escaping cattle of his neighbor, or whose mine is flooded by the water from his neighbor’s reservoir, or whose cellar is invaded by thé filth of his neighbor’s privy, or whose habitation is made unhealthy by, the fumes and noisome vapors of his neighbor’s alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbor who has brought something on his own property ( which was not naturally there ), harmless to others so long as it is confined to his own property, but which he knows will be mischievous if it gets on his neighbor’s, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his act in bringing it there, no mischief could have occurred; and it seems to be but just that he should, at his peril, keep it there, so that no mischief may accrue, or answer for the natural and anticipated consequences. And upon authority, this, we think, is established to be the law whether the thing so brought be beasts, or water, or filth, or stenches.” Judgment of Blackburn, J., in Fletcher v. Bylands, L. R. 1 Ex. 265. The case went then to the House of Lords; where Lord Cairns, the Lord Chancellor, after quoting the above, adds : " In that opinion I must say I entirely concur. ” Bylands v. Fletcher, L. R. 3 E. & I. App. 330.</p> <p>In this country it has been denied in New York ( unless there be negligence in the use or introduction of the agency ). Losee v. Buchnam, 51 N. Y. 476; criticised in New Hampshire,— the opinion erroneously ascribing it to unjust principles. Brown v. Qollins, 53 N. H. 442; substantially followed in Massachusetts, in Ball v. Nye, 99 Mass. 582, and approved in Shipley v. Fifty Associates, 106 Mass. 198, as stated in Oorham v. Gh’oss, 125 Mass. p. 238, by Gray, C. J.</p> <p>"The general rule of law” stated ... in Fletcher v. Bylands, and approved by this court in Shipley v. Fifty Associates, is that "the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief, if it escapes, must keep it in at his peril; and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. ” It has been thus remarked upon in this state, —" Whether the same principles will be applied by this court to similar circumstances we need not stop to inquire until such an occasion presents itself.” Virgin, J.', Simonton v. Boring, 68 Maine, p. 165.</p> <p>Aside from its weight as a precedent merely, and the approval of Massachusetts cases, there are the following reasons why its doctrine should be recognized in this state :</p> <p>First. It is a right doctrine ; for a man should not be allowed', to purchase a gain for the price of another’s injury, even if not technically liable as a trespasser.</p> <p>Second. It is an ancient doctrine, for the precedents cited and1 principles applied by Blackburn, J., are found in that older common law, which is as much the heritage of Maine as of' England, and recognized in many cases for analogous injuries.. For illustrative proof of this, see as to animals: May v. Burdett, 9 Ad. & El. 101 (58 E. C. L.) ; Gox v. Burbridge,. 13 C. B. (N. S.) 438 [106 E. C. L.] ; Gard v. Case, 5 C. B. 622 (57 E. C. L.) ; U. S. Big. vol. 1, p. 272, § 63. As to-dangerous instruments: Townsend v. Wathen, 9 East, 277. Cesspools: Tenant v. Goldwin, 1 Salk. 21, 360, and 2 Ld. Raymond, 1089. Reservoirs: Wilson v. New Bedford, 108' Mass. 261. Privies : Ball v. Nye, 99 Mass. 582. Odors from-a tomb: Barnes v. Haihorn, 54 Maine, 125. Vapors and stenches: Bunford v. Turnley, 3 B. & S. 61 (113 E. C. L.). Fire — until stat. 6 Ann C. 3, limited liability to negligence r FiUiter v. Fhippard, 11 Ad. & E. N. S. * 354; Higgins v. Dewey, 107 Mass. 494, and notwithstanding this limitation as to fire. Smoke from a furnace :' Rich v. Basterfield, 2 C. & K. (61 E. C. E.), 259. Sparks from an engine: Bower v. Fall, L. R. 5 Q. B. Biv. 600. Also fall of material from building: Jciger v. Adams, 123 Mass. 26. And snow slides: Shipley v. Fifty Associates, ante; Breston v. Drew, 33 Maine, p. 562.</p> <p>Third. Because it is the firmest ground upon which the decisions that a landlord who demises an actual or potential nuisance is liable for all damages therefrom, can be logically sustained. Taylor’s Landlord & Tenant, § 175.</p>

On report. Bill in equity by the administrator, with the will annexed, of -the estate of Betsey L. Bearce, late of Auburn, to obtain a ■construction of the following item of her will: Item 1.

On report. Writ of review. Original judgment was rendered on default at the December term, 1881, of the superior court, Cumberland county, for $83.83 with interest from the date of writ, making $87.45 debt and $31.90 costs of suit.

On report on agreed statement of facts. Petition for partition. All parties claim their title directly or by mesne conveyances under the will of Timothy Wentworth, the material portion of which is recited in the head note. Timothy Wentworth, the testator, his widow and his son Edward all died prior to January 1, 1865.

<p> Rescinding of a contract. Fraud. Damages. Sales. </p> <p>To rescind a contract of sale of merchandise, which has been delivered, on the ground of fraudulent representations of the seller, the buyer must restore the goods to the seller, if they are of any value, or offer to restore them under such circumstances as show an existing intention and ability to deliver them into the possession of the seller, if he elects to accept them.</p> <p>When such a contract has not been rescinded the buyer is liable for the contract price, less the damages occasioned by any fraud that was practiced upon him in the sale.</p>

<p>On report.</p> <p>The opinion states the case.</p> <p>cited: Butler v. Moore, 73 Maine, 151; Perkins v. Dunlap, 5 Maine, 268 ; Jellison v. Jordan, 68 Maine, 373; Bidder v. Hunt, 1 Pick. 328 ; Thompson v. Gould, 20 Pick. 134; Hoag v. Owen, 57 N. Y. 644; Churchill v. Stone, 58 Barb. 233; Graves v. Wait, 59 N. Y. 156 ; Murray v. Richards, 1 "Wend. 58 ; Spring v. Coffin, 10 Mass. 31; Lawrence v. Carter, 16 Pick. 12 ; Gardiner Mfg. Co. v. Heald, 5 Maine, 381; Llilton v. Homans, 23 Maine, 136; Dyer v. Wilbur, 48 Maine, 287; Gilman v. Cunningham, 42 Maine, 98; Millett v. Holt, 60 Maine, 169; Braley v. Goddard, 49 Maine, 115; Dwinél V. Stone, 30 Maine, 384; Gilmore v. Black, 11 Maine, 485; Howard v. France, 43 N. Y. 593 ; Raymond v. Bearnard, 12 Johns. 274.</p> <p>From the unconflicting evidence of both it seems clear that they were either copartners in buying and selling land, or in any case tenants in common of a lot of land purchased, paid for, held, and lots sold therefrom on joint account with all current expenses and proceeds of sales equally divided, with a large portion of the land still unsold and now in the sole possession of the plaintiff, who has the entire legal title thereto, and no account whatever between the parties ever having been' settled.</p> <p>If plaintiff and defendant were copartners in the business of buying the tract of land and allotting it and selling the lots as opportunity arose, there having been no settlement between them, neither can maintain assumpsit against the other for any matters arising therefrom. Holyoke v. Mayo, 50 Maine, 385 ; 2 Ewell’s Lindley on Part. 1029, and notes, 651, 15, 20, 57,-et seq.; Ryder v. Wilcox, 103 Mass. 24; Dudley v. Littlefield, 21 Maine, 418.</p> <p>But if plaintiff and defendant are to be regarded merely as tenants in common of real estate, neither can maintain an action against the other for his share of money received therefrom until there has been a settlement between them. Maguire v. Pingree, 30 Maine, 509; Knowlton v. Reed, 38 Maine, 246 ; Goioen v. Shaw, 40 Maine, 56; Moses v. Ross, 41 Maine, 360; Wright v. Fastman, 44 Maine, 220; Lane v. Tyler, 49 Maine, 252; Millett v. Holt, 60 Maine, 169; Shepard v. Richards, 2 Gray, 424, 427; Terry v. Brightman, 132 Mass. 318.</p> <p>Finally, whether partners or not, or cotenants or not, indeed whatever may be their relation to each other, how can assumpsit be maintained for money voluntarily paid by the plaintiff to the defendant, under no mistake of fact? There is no suggestion of a loan ; they were all payments of what upon all the facts now known both parties then believed was due to defendant. The contract between them by virtue of which these payments were-made has never been rescinded by the plaintiff; he still holds, about five acres of the land. JEtand v. Webber, 64 Maine, 191;. Butler v. Moore, supra.</p>

On exceptions. Trespass on lands. The defendant pleaded the general issue •and filed a brief statement disclaiming all title to the land described in the writ, and alleging that the trespass was involuntary, and that before action brought he tendered sufficient amends therefor.

On exceptions and motion to set aside the verdict. Indictment against the Maine Central Railroad Company for negligently causing the death of Adoniram Juds'on Pickard at a railroad crossing in Carmel, on the twenty-sixth day of December, 1882, prosecuted for the benefit of his widow and •children. The opinion states the material facts. The next question is, was Doct. Pickard in the exercise of due care and diligence when he was killed?

<p>On report.</p> <p>General demurrer to bill in equity, submitted for the decision of the law ,court by the justice presiding at the April term, 1883. Either party had permission to refer to the printed copy of the case between the same parties, at law, in which the same matter was involved.</p> <p>(Bill.)</p> <p>. . . "And now said Bachelder gives this honorable court to be informed that some time previous to the year A. D. 1859, John B. Hill and others as proprietors, owned a large tract of land in Greenfield, in said county, embracing particularly lots number four and five, in the third range of lots in said town; that previous; to that time, one Joseph LeBallister entered into possession and. occupied said lot number four, and continued to occupy and. improve it for several years, until the summer of the year 1859, when William T. Garland purchased his said possession and improvements consisting of certain clearings of land and certain buildings erected thereon, and entered into possession thereof' under and in recognition of the title of the true ownei’s, the said. Hill and others. In order to purchase the said LeBallister’s. said improvements and possession, which said LeBallister had made under an agreement to purchase the fee of said Hill and, others, it became necessary for said Garland to borrow the sum.: of one hundred dollars wherewith to pay for the same. In., order to effect such a loan, he applied to one Samuel Pratt, then of- said Oldtown, and since deceased, which loan said Pratt then, made to him. And at the same time, said Garland requested said Pratt to purchase for him, the said Garland, the proprietor’s-title to the lot so occupied by him, being said lot number four.. And thereupon for the purpose of accommodating said Garland, according to his such request, said Pratt did consent to make such' purchase, and accordingly on the seventh day of July, A. D.. 1860, did make such purchase for his said Garland’s special benefit. And on that day after agreeing upon the terms of the-sale and purchase, a deed was made by said proprietors to said Pratt for the purpose of conveying said lot number four to him according to the wish and understanding between said Pratt and Garland on the one side, and said proprietors on the other, all: of whom bargained for the lot then occupied by said Garland, and on which the buildings were erected as aforesaid. But so> it happened by accident and without design on the part of any one in making said deed, the word, descriptive of the lot and its number, was made to- read ' five’instead of four, so that-according to the literal and legal meaning of the deed, lot number five was conveyed instead of number four, said lot number five being a wild lot and of little relative value, and said lot number four being the lot on which all said improvements had been made and possession thereof had, so that there was an unquestionable mistake made by inserting the word ' five ’ instead -of 'four’ in the deed expressive of the number of the lot untended to be conveyed.</p> <p>" And thereupon said Pratt having purchased the lot as aforesaid, and having taken the deed as aforesaid, and all parties ¡supposing the lot number 'four’ was the land actually conveyed, ¡said Pratt permitted said Garland to remain in possession thereof ■ as the same was purchased at his request and for his benefit, ■until the cash payment was made therefor, when said Pratt •conveyed the same premises to said Garland, by deed bearing -date May 28, 1863, on which day it was executed and delivered ¡to said Garland. And the said Garland at the same time recon-veyed the same land to said Pratt in mortgage to secure the balance of the consideration money, for which three notes were ¡given amounting to three hundred and eight dollars, which notes 'were described in and secured by said mortgage, and the same ¡are still due and unpaid, except to a small amount, and said ¡mortgage undischarged. The said deed from said proprietors to ¡said Pratt containing the following words as part of the description, viz: ' This deed being intended to convey the soil of ¡said lot, but not to convey the improvements made by Joseph .LeBallister on the sameand the said deed from said Pratt to ¡said Garland containing the following clause, viz:'' Being same ■.conveyed to me by John B. Hill et als. July 7, 1860,” and said ■¡mortgage containing the following, clause : ' Being the same land ’this day conveyed by said Pratt to said Garland.’ No improvements having been made on said lot' five.’</p> <p>" And thereupon the deeds having been made as aforesaid by intention of all parties thereto, for the purpose of making good the title of said lot number four on which said Garland resided, the said Garland was permitted to reside thereon and cultivate and improve the same, occasionally paying small sums on said notes until after the death of said Pratt, he never having ascertained the mistake.</p> <p>"And the plaintiff further alleges that said Pratt died in September, A. D. 1863, being still ignorant of the mistake in said deed, but still supposing the lot to have been conveyed which was intended. And after the death of said Pratt as aforesaid, said mortgage continued in the family as a part of the assets of his estate, and the plaintiff being the husband of one of the only two heirs of said Pratt, in behalf his wife and for his own interest as connected with the estate, he came to hold in the distribution of the assets of said estate two-thirds of the whole mortgage and notes secured thereby, and his wife and heir of her father the other third.</p> <p>" And on the other side the remaining interest of the proprie-' tors, especially so far as the two lots in question are included, came into the ownership of S. and J. Adams, to whom a deed was made by the then owners on the first day of March, A. D. 1881, of all interest in said lots.</p> <p>" And the plaintiff further alleges, that for a long time the said mistake was unknown to any one, until some two years after the death of said Pratt, when the former owner of a part of the premises, in about the year 1865, ascertained the mistake and gave all parties notice thereof, but inasmuch as said Garland manifested no disposition to take any advantage of the mistake, but on the contrary made occasional payments on the notes the matter was permitted to remain quietly as it was. And so it remained until the year 1880, when, to his surprise, plaintiff found out and ascertained .that said Garland had conveyed the lot on which he had in the mean time resided from the time of his purchase of the improvements in 1859 as aforesaid, to the time of said deed, to this defendant, William M. Bean, the deed bearing date-November 15, 1880, and that said Bean had entered and taken possession of the premises, the deed reciting the fact in substance that said Garland claimed title by twenty years-adverse possession and disseizin. '</p> <p>" That thereupon by deeds bearing date’March 11, 1881, the said Bachelder and wife as successors to said Pratt in the title on. the one part, and said S. and J. Adams as owners of lot number-four and other lots on the other part, in order to correct said, mistake and make each other’s title what in equity it was intended to be and equitably was, made each to the other reciprocal deeds of the lots in question, said Adams’ conveying all their interest in lot- number four to said Bachelder, and said Bachelder and wife conveying to said Adams’ all their interest in said lot number five. And the said Bachelder being thus the legal holder of the title at once entered into possession of the premises, and was in peaceable possession thereof, when the said Bean commenced an action of ejectment or writ of entry for the same, claiming the title and ownership by virtue of a disseizin and prescription for more than twenty years, and the said Bachelder as defendant setting up in defense against the same, the fact, in denial, that no such title had been acquired by such possession, the same not being adverse and of a nature such as gave title. But notwithstanding the said defense the court have, viz: on the fourteenth day of December now present, rendered judgment for plaintiff in said suit, and execution has issued to put him ■in possession of said premises, and the plaintiff is about to ■serve said process and put your complainant out of possession and seize the hay cut on said premises and now on storage in the ibarn on said premises.” .</p> <p>The bill prayed for an injunction and that defendant be .required to release the premises to the plaintiff.</p> <p>That the injunction prayed for, under the circumstances of this -case, should be granted. I cite from a great number of cases at ■hand, the two following from our own reports, viz: Burr v. .Hutchinson, 61 Maine, 514; Hinckley v. Haines, 69 Maine, 76, ¡and cases passim.</p> <p>That the injunction may be decree against the judgment and ■execution, as well as before suit, the authorities are beyond 'number. I cite simply our own reports. Hevoll v. /Scale, 49 .Maine, 320.</p> <p>In 7 Cranch, 336, the supreme court of the United States say tin injunction lies against a judgment" when the defence was one which the party could not avail himself of at law.”</p> <p>That is just our case, the court having decided in this that the ■defence could not be thus availed of.</p> <p>This whole case is so fully supported by the very able discussion mn this subject of injunctions by Mr. Kerr, that I feel that noth.ing more need be added. See Kerr, Injunctions, * 587 to * 596 ; 46 Conn. 65.</p> <p>cited: St. Johnsbury v. Bagley, 48 Yt. 75; Fletcher v. Warren, 18 Yt. 48.</p>

On report. Assumpsit on account .annexed and for money had and received.

On report. The first action is for trespass. The writ dated August 31, 1880, alleged that the defendant at Oldtown, August 30, 1880, with force and arms wilfully, and without the consent of the owner let loose the plaintiffs’ boom in the Penobscot river by reason whereof a large number of logs ran by the boom into the plaintiffs’ mill-pond and the plaintiffs were put to great expense in sluicing the logs out of the pond. Ad damnum one thousand dollars.

On report. .Writ of entry to recover an undivided half of lot No. 58 in Solon. The plea was joint nul disseizen, with brief statement. The opinion states the material facts. The following is a copy of item four of Moses Eaton’s will, referred to in the opinion : Item 4th. I give, bequeath and devise to Samuel Eaton and Jona.

<p>Insolvent law. Composition. Discharge. Appeal. D. S., c. 70, § 62.</p> <p>An appeal does not lie to the Supreme Judicial Court from a decree of a judge of the court of insolvency, granting a discharge to an insolvent debtor who has made a composition with creditors under R. S., c. 70, § 62. The remedy for a creditor contesting the discharge is by an action as provided by that section.</p>

On exceptions. Assumpsit to recover balance of freight of schooner Defiance for transporting a cargo of ship timber from Marattico and Dividing Creeks in Virginia, to Bath, Maine, in 1876. The writ was dated August 9, 1879. The verdict was for the plaintiff for one hundred and forty-seven dollars, and the defendant alleged exceptions which, with- the facts relating thereto, are sufficiently stated in the opinion.

On exceptions from superior court. Complaint for cruelty to animals made before the municipal court of Augusta where the respondent appealed from the decision of the municipal judge. The opinion states the case. cited: Oom. V. Lufkin, 7 Allen, 579 ; Com. v. Thornton, 113 Mass. 457; Oom. v. McLellan, 101 Mass. 34; Oom. v. Whitman, 118 Mass. 458. cited: Bishop, Crim.

On exceptions. Indictment against Oscar E. Blaney and Mary E. Barrows for the murder, of Thomas Barrows at Kittery, on the fourteenth of November, 1883. The respondents severally pleaded not guilty. On motion of Mary E. Barrows a separate trial was granted her and she was first put on trial.

<p>Pleadings. Declaration. S. B., 1871, c. 46, § 23. Stat. 1872, c. 16.</p> <p>In penal actions tlie declaration must present' a case strictly within the provisions of the statute, directly averring every essential fact, instead of leaving it to be gathered by argument or inference.</p> <p>It an action against a railroad corporation to recover the penalty prescribed by R. S., (1871) c. 46, § 23, as amended by st. 1872, c. 16, for not making “ a return of the names of all its stockholders, their residence, the amount of stock owned by each, and the whole amount of stock paid in,” an allegation that the “defendant corporation is and fora long time has been a corporation duly organized, and existing under the laws of this state,” does not sufficiently aver the material fact that any stock was ever issued.</p>

On exceptions to the ruling of the court in discharging the trustees.

On motion to set aside the verdict. Assumpsit for services rendered as village school agent, for the years 1880 and 1881, fifty dollars. The writ was dated July 10, 1882. The plea was the general issue. The verdict was for the plaintiff in the sum of thirty-seven dollars and eighty cents, and.the defendants moved to set aside the verdict.

<p>Attachment, right of grantees to defend in cases of. S. 8., c. 82, § 19.</p> <p>R. S., c. 82, § 19, providing that “ grantees may appear ahcl defend suits against their grantors in which the real estate is attached, ” does not apply to a grantee whose conveyance was prior to the attachment. Nor does it give to a grantee a vested right to appear and defend a suit without application to the court.</p>

<p>On exceptions.</p> <p>Assumpsit to recover for pauper supplies furnished to Julia A. Jackson and her three children.</p> <p>At the trial the plaintiffs introduced evidence of a marriage ■ between Julia A. Jackson and one Grustavus A. Farnham whose-settlement was admitted to be in the defendant town, whereupon the defendants were permitted to introduce evidence, against the plaintiffs’ objections, tending to prove that at the time of the marriage Farnham was insane. And the presiding justice-instructed the jury that if they found that Farnham was insane at the time the marriage ceremony was performed, the marriage would be void, and the plaintiffs could not, for that reason, maintain this action.</p> <p>To this ruling and instruction, the verdict being for the-defendants, the plaintiffs alleged exceptions.</p> <p>It is not competent to question the validity of a marriage oir account of the insanity of one of the parties in the trial of a collateral issue, such question can be determined only in a process' instituted for the purpose of testing such validity. See definition of marriage in Adams v. Palmer, 51 Maine, 480.</p> <p>The relation is publici juris. A decent regard for the rights of others, for the peace of mind of the parties to the marriage, for the good name of children begotten by parents under the ¡■sanction of proper and lawful marriage ceremonies, demand that this question should not be made a foot-ball by contesting ’.litigants, but that a marriage, duly solemnized according to the ■laws of the state, should be held sacred until the subject has been-judicially investigated and the fact established by the proper tribunal, and in the way provided by the statute, for thegovernment ■.of all parties for all time.</p> <p>The expediency, at least, of the method of procedure for which the plaintiffs contend is declared by the elementary writers. .2 Greenl. Ev. § 464, note 2 ; 2 Kent, 77.</p> <p>Although the marriage of a lunatic is absolutely void without ■any decree of nullity in Massachusetts, yet, the question whether lunacy existed to an extent to annul the marriage, can not be -.raised collaterally. The fact must be decided in such a way as do be fixed for all purposes and for all parties.</p> <p>The same provision is made by the statute of New York.</p> <p>In this state the question has not been judicially decided. In JLtkinson v. Medford, 46 Maine, 510, the question was not .raised, or discussed, or decided.</p> <p>It is ah open question. The court is called upon first to (determine what is right; what is salutary; what is for the good •order of society, and the peace of mind of all persons who enter Into the bonds of matrimony.</p> <p>If it is best for the public, best for the parties concerned, that ■the validity of a marriage shall be questioned and brought into controversy, incidentally, to be decided in oneway in one cause, .and the contrary in another suit; that the social status of parents .should be thrown into doubt, and the legitimacy of children brought into discredit, at the will of litigants, and left in doubt and discredit, even after the decision of the cause in which the question is raised, then, of course, the ruling of the judge at nisi prius must be sustained.</p> <p>cited : 1 Bish. Mar. and Div. § § 105 (49), and cases cited, 124, 125, 136; Ferlat v. Qojon, 1 Hop. Ch. 478; S. C. 14 Am. Dec. 554; Gathings v. Williams, 5 Ired. 487 ; S. C. 44 Am. Dec. 49, and note, p. 54; Elliott v. Gurr, 2 Phillim. 19 ; 1 Black. Com. p. [524], [526], [527] ; Jenkins v. Jenkins Heirs, 2Dana, (Ky.) 103; S. C. 26 Am. Dec. 437; Foster v. Means, 1 Speer’s Eq. 569 ; S. C. 42 Am. Dec.332 ; Wightman v. Wightman, 4 Johns. Ch. 343 ; Grump v. Morgan, 3 Ired. Eq. 91; S. C. 40 Am. Dec. 447 ; Powell v. Powell, 18 Kansas, 371; S. C. 26 Am. Eep. 774; note to Gathings v. Williams9 44 Am. Dec. 55, and cases; E. S., c. 59, § 2; E. S., 0. 60, § 1; note to Jackson v. King, 15 Am. Dec. 368 ; see Wiser v. Lockwood, 42 Yt. 720; Middleboro’ v. Rochester, 12 Mass. 363; Mount-holly y. Andover, 11 Yt. 226; S. C. 34 Am. Dec. 685; Goshen v. Richmond, 4 Allen, 460; Atkinson v. Medford, 46 Maine, 510.</p>

On exceptions. An action of slander. The writ was dated March 24, 1883. The defendant filed the following plea: Williard K. Atwood, v. Abbey Higgins. Supreme Judicial Court, Somerset County, September Term, A. D. 1883.

On exceptions by the defendants. An action for the recovery of damages for personal injuries sustained May 2, 1883, by the plaintiff by reason of defective way in the defendant town. The writ was dated September 17, 1883.

On report. Debt on poor debtor’s bond. During the life of the bond the debtor disclosed and was discharged as a poor debtor. No question was made as to the regularity of these proceedings. John Estes was chosen by the debtor as his magistrate and he acted as such. He was at the time holding a commission as trial justice to which office he was appointed, and qualified prior to 1881, for Penobscot county.

<p> Attachment 'of personal property. Exemption. Trespass. Amendment. </p> <p>The attachment of hay in a mow on mesne process is preserved by the officer, by filing with the town clerk a copy of his return and certificate of other facts required by R. S., c. 81, § 24.</p> <p>By filing such a copy and certificate with the clerk, the officer does not deprive himself of the right to regain actual possession of the property attached, whenever necessary for its preservation.</p> <p>The amendment of a writ, by striking out the middle letter in the name of the defendant, will notvlissolve an attachment of personal property when the suit is between the original parties, and no rights of third persons intervene.</p> <p>When an officer in the attachment and removal of hay does not leave the requisite amount to keep the stock which the defendant owns, exempt from attachment, at the time of the attachment, he thereby becomes a trespasser as to so much as is taken beyond what is authorized by law, but not ab initio as to all the hay taken.</p>

<p> Animals. Liens. Stats. 1872, e. 27 ; 1873, c. 126. </p> <p>When animals have been sold by an officer on an execution issued upon a judgment rendered upon a petition to enforce the lien provided by statute for pasturing, feeding or sheltering animals, a second petition by the same party to enforce a lien for keeping the animals during the time intervening between the dates of the two petitions, commenced while the animals still remained in his possession, being prior to the time of seizure and sale by the officer, cannot be maintained, although there be a surplus arising from the proceeds of the sale after the satisfaction of the execution, which the officer had deposited with the clerk of courts in accordance with R. S., 1871, c. 91, §45.</p>

On report. Appeal from the decree of the probate court. The facts are stated in the opinion. contended, that under the common law the only heir to the estate of Bessie E. Vose is Charles W. Yose because she acquired her estate by inheritance from her father who was a son of Charles W. Yose: that estates acquired by descent have different inheritable qualities from those acquired by purchase — the latter descending to the owner’s blood in general, the former descending to the…

On exceptions. Appeal from the decree of distribution of the probate court in the estate of defendant’s intestate, Charles L. Bicknell. The opinion states the material facts. The question presented is whether the estate descends to the maternal grandmother or to the uncles and aunts and their descendants on the paternal side. The estate came from the paternal side.

<p>Plantations. B. S., 1871, c. 8, § SO. Organization. Practice.</p> <p>The record of a meeting- for the organization of a plantation, reciting that the qualified voters of “ said township Letter L, Range 2, or Cyr Plantation, met,” etc. is a sufficient “written description of the limits of the plantation,” within the provision of R. S., (1871) c. 3, § SO.</p> <p>The return on the warrant calling a meeting to organize a plantation, reciting, “ I attested and posted up two copies,” is a compliance with the requirement to post an attested copy in two places.</p> <p>The competency of testimony which comes before the law court on an agreed statement must first he raised at nisi prius.</p>

On report. Petition for certiorari to quash the proceedings of the County Commissioners in abating, upon petition, a portion of the taxes of Mrs. John A. Buck, for the year 1883. The list returned to the assessors was as follows : Orland, April 2, 1883. Assessors of the town of Orland: The following is a list of my taxable property : . . . also my wife owns a 'dog cart’ nine years old, . . .

On report. Petition for certiorari to quash the proceedings of the county commissioners in abating a portion of the taxes of John A. Buck. There were two petitions ; one each for the years 1882 and 1883. In the latter the causes of error assigned were as follows : 1. Because the application to said board of county commissioners, praying for said abatement, did not set forth upon what property said John A. Buck desired said abatement. 2.

'On report on agreed statement of facts. Assumpsit on defendants’ acceptance of an order of Charles ~W. Pierce, dated September 13, 1879, for fifty dollars and seven cents. The opinion states the material facts.

<p>On exceptions.</p> <p>Trespass, qu. cl. The opinion states the facts,</p>

On report. Bill in equity by the special administrator on the estate of Francis Kane, late of Portland, deceased, to redeem from mortgage certain real estate of the deceased. The defendant demurred to the bill. The presiding justice hearing the cause being of the opinion that the question of law involved was of sufficient importance reported the same to the law court, the parties agreeing thereto. The material facts set out in the bill are stated in the opinion.

On exceptions to tbe ruling of the court in ordering a nonsuit, The opinion states the case and material facts. The owner of the land adjoining each side of a way, owns the fee of the road subject to the easement of the public to travel over it. The soil of the road is as absolutely his property as is the lot adjoining it.

<p>On exceptions.</p> <p>The case was not argued at law court.</p>

<p> Will. Devise. Life-estate. </p> <p>A testator devised real estate to his widow to hold “during- her life for her maintenance, but not to sell the same, the said real estate to go to John Mehan at her death, if any remains.” Held:</p> <p>1. That the widow took a life-estate by express words of limitation, without any power of disposal annexed.</p> <p>2. That the words, “ if any remains,” are by implication in opposition to the language of the testator, in the same clause by which the widow is ■ expressly prohibited from making sale of the real estate, apparently inconsistent with every other expression in the will, and therefore can not be held to imply aright of disposal.</p>

«On exceptions to the ruling of the court in dismissing the ¿petition:on motion of the defendant. The .-opinion states the case and material facts.

On report. An action of the case. The defendant filed a general demurrer which was joined, whereupon the case was reported to the full court for decision. If the action was legally maintainable upon the facts alleged, the case was to stand for trial. Otherwise the plaintiff was to be nonsuited. The facts are sufficiently stated in the opinion.

<p> Complaint for costs. Notice. Judgment. </p> <p>Judgment may be rendered on a complaint for costs without notice to the plaintiff of the filing of the complaint when it is made to appear to the court, that the writ was duly served upon the defendant and the plaintiff had failed to enter his action.</p> <p>When such a judgment has been rendered the court is presumed to have acted upon competent evidence, sufficient to establish the necessary facts.</p>

<p>Bill in equity; heard on bill, answer and proofs.</p> <p>The opinion states the case, and the material facts as found by the court.</p>

On exceptions from the municipal court, Lewiston. Assumpsit. The writ was dated April 30, 1884. The exceptions were to the ruling of the judge in overruling the defendant’s demurrer to the declaration. The opinion states the material facts. cited: Stephen’s PI. (9th Am. ed.) 341, 269 ; 2 Chitty, PI.

On exceptions. An appeal from the decree of the court of insolvency im refusing a discharge to John E. Edgecomb, as an insolvent debtor, on the ground that he was a trader and kept no cash, book. The exceptions were to the ruling of the court in> affirming the decree of the court of insolvency.

On report. The opinion states the case. The report provided that if the relationship of the judge of probate with the testatrix rendered the administrator incompetent to act in such capacity, then the' action should stand in court for further action of the probate court. Otherwise the defendant was te be defaulted.

<p>On report.</p> <p>Assumpsit for money had and received to recover the amount of three town orders of one thousand dollars each, dated November 17, 1877, signed by the selectmen of the town and accepted by the treasurer, upon which one year’s interest had been paid. The orders were given to Isaac S. Staples for money loaned, and endorsed by Staples to the plaintiffs.</p> <p>The plaintiffs admitted that the selectmen had no authority to hire the money, and that the town had not ratified the orders nor the payment of the interest thereon; but offered to prove that the money hired was appropriated to pay the legitimate debts of the town by the chairman of the selectmen.</p> <p>The writ was dated September 17, 1881, and the plea was the general issue.</p> <p>cited: Billings v. Monmouth, 72 Maine, 174; Belfast National Bank v. Stockton, 72 Maine, 522.</p> <p>In the former case the court say there is no reason to excuse a town from refunding money when it has actually been appropriated to the payment of the legal liabilities of the town. " It is,” says the court, "the payment of the lawful debts of the town by its own agents with the plaintiff’s money which - constitutes the cause of action.” In that case the plaintiff, by showing such an appropriation of his money, was declared to be entitled to a verdict, although "the testimony tending to show authority and ratification was weighed and found wanting.”</p> <p>The only limitation of this doctrine in Bank v. Stockton, is that the rule applies to cases "where there was in fact and in law a payment of the debt of the town by the use of the money hired without authority when the debt was discharged not only in form but in effect.”</p> <p>In the case at bar the plaintiffs offered to prove that the money hired of Staples was appropriated by the chairman of the selectmen to ’doa payment of the legitimate debts of thé town. And the admission was that the town had not ratified the orders, not that the town had not ratified the payment of its debts by the money hired.</p>

On report. An action of the case to recover damages for injuries alleged to have been received by the plaintilf, through the breaking of the rope of an elevator in the defendant’s mill, August 13, 1881. The question presented by the report is stated in the opinion. cited: Sanford v. Emery, 2 Maine, 5; Perley v. Little, 3 Maine, 97; Mitchell v. New England Marine Ins. Go. 6 Pick. 117; Bragdon v. Appleton Mutual Fire Ins.

On exceptions and motion to set aside the verdict. Assumpsit on a policy of fire insurance, covering two thousand dollars on certain farm buildings of the plaintiff, which were; destroyed by fire. The verdict was for two thousand one hundred, fifty-six dollars and fifty cents. The case has been once before considered by the law court and', is reported in 75 Maine, 196. The insurance was really for the benefit of Higgins. His position' was that of mortgagor.

<p> Dower. Improvements. Appraisers. Practice. Writ of seizin. </p> <p>The demandant’s husband, in 1868, shortly before his death, gave her a deed of warranty of a homestead; as his executrix she did not inventory it with his estate; she remained in possession until 1878, renting the property, when she was ousted by the defendant, claiming under mortgages from the husband, of an earlier date than her deed; during her possession she made some payments upon the mortgages. Held: That the demandant is entitled to dower in the premises; that the facts do not constitute a waiver or an estoppel to prevent it.</p> <p>The owner should be allowed for improvements properly added to the premises. An ell, containing a dining room and kitchen, annexed to the house, and erected to make the premises more tenantable, is to be regarded as an improvement.</p> <p>When improvements are to be considered, the writ of seizin to the officer should notice the fact. If the appraisers commit mistakes they can be corrected before an acceptance of the return of the officer. And the court may give instructions in advance for the guidance of the appraisers, if the pleadings and evidence enable it to do so.</p> <p>In the calculations for division, the defendant should be allowed the actual value which the permanent additions or improvements contribute to the value of the whole estate; that may be more or less than the cost, although the cost would be, prima facie, a fair criterion.</p> <p>The damages for detention of dower are to be assessed by the jury, unless the parties agree to allow the appraisers to make the assessment, or dispose of the question in some other way; they are usually assessed before the writ of seizin issues, but may be afterwards; the forms are adaptable to circumstances.</p>

<p> Husband and wife. Gift. Hquity. Divorce. </p> <p>A husband conveyed real estate to his wife upon an oral understanding that she was to hold it for their joint benefit. The husband, after a divorce between them, sues the wife for rents accruing from the property before and after the divorce. The remedy, if any, is in equity and not at law.</p> <p>During coverture the wife was accustomed to draw money on the husband’s account from his employer, using it partly in family expenses, and investing the balance in personal securities kept in her possession, without any knowledge by the husband of the details of the transaction. There was no declaration of a gift from husband to wife. In such case an action lies, after divorce, by the husband against the wife for any of his money or chattels remaining in her hands at the date of the divorce or acquired by her since that time, — the same principles applying as between other principals and agents for the recovery of property.</p> <p>Where a husband or wife sets up a gift of personal property from the other, the burden is upon the claimant to show the intention to give and the execution of such intention by actual delivery, by clear and incontrovertible evidence. The mere possession of the property of the one by the other is not proof of gift. There must be some distinct and expressive act to transfer the property of the one to the other.</p>

On report. Eeal action to obtain possession of certain premises in Winthrop. The plaintiffs claim title as heirs of John O. Wing, (who died prior to the commencement of the action) under the will of Ichabod Wing. The defendant claims title by conveyance from John O. Wing.

Exceptions to the ruling of the court in overruling a demurrer to the declaration. The opinion states the case. The plaintiff submitted without argument.

-On report. 'The opinion states the case. Without reviewing the cases where similar questions have been ■affirmatively decided we think in the case, Carpenter v. Dresser, 72 Maine, 380, Peters, J., states the principle fairly upon which this claim is made, and with sufficient fullness for the purposes of this argument.

<p> Divorce. Dower. S. S., c. 60, §10. </p> <p>R. S., c. 60, § 10, is an affirmation of a general principle of law and is not applicable to persons who abandon their residence in this state and bona fide establish their domicil in another state where they afterward obtain a divorce.</p>

On exceptions. Appeals from the decision of a magistrate. Each case is .to recover damages from the defendant, an unlicensed inn-keeper at Newport, for refusing the plaintiff entertainment at his house August 27, 1883. The verdict in each case was for eight dollars.

An appeal from the municipal court of Calais. On motion of the appellee to dismiss, the presiding justice ruled that the court had no jurisdiction of the case, on the ground that the record does not show that the appeal was perfected, inasmuch as there was no recognizance. To this ruling, the appellant alleged exceptions.

<p>Petition for partition. Costs. P. 8., a. 82, § 117; c. 88, \10.</p> <p>Ik petition, for partition is not an action within the meaning- of the statute which provides that in all actions the prevailing party shall recover costs. Costs are allowable only as provided in the statute regulating the proceedings in partition.</p> <p>'.Where no issue is raised as to the title of the petitioner, and judgment for partition is entered, the respondent cannot recover costs as matter of right. It is only when an issue is j oined and tried as to the right of the petitioner to partition that the prevailing party recovers costs, and then only up to the ■time when judgment for partition is rendered.</p>

On report. An action of debt to collect the taxes assessed to the estate of Orrin Woodman, in 1883. The opinion states the material facts. The assessors gave the notice required by the statute, and neither the defendant nor any other person brought in a list of the property taxed to the Estate of Orrin Woodman. ” What were the assessors to do?

<p>On motion to set aside the verdict, and on exceptions.</p> <p>Trover for certain mill logs. The plea was the general issue and tender of one hundred and fifty dollars. The verdict was for three hundred thirty-two dollars and thirty-one cents.</p> <p>upon the questions presented by the exceptions and considered in the opinion, contended that the assignment of the permit constituted a chattel mortgage within the meaning of the recording’ act. ft. S., c. 91, § 1. Any instrument intended to operate as a mortgage in law or in equity is within the recording act. Shaw v. Wilshire, 65 Maine, 485.</p> <p>If a transaction resolve itself into a security whatever may be its form and whatever name the parties may choose to give it, it is in equity a mortgage. Flagg v. Mann, 2 Sum. 533 ; Stinchfield v. Milliken, 71 Maine, 570; Jones, Chattel Mort. §17; Parks v. Hall, 2 Pick. 206; Smith v. Beattie, 31 N. Y. 542; Leitch v. Hollister, 4 Comst. 211; Baton v. Whiting, 3 Pick. 490; McClelland v. Bemsen, 36 Barb. 622; Garland v. Plummer, 72 Maine, 397.</p> <p>By R. S., c. 73, § 1, all peeled logs lying where cut down are personal property. The permit, therefore, as to them operated as a grant. Wood v. Leadbitter, 13 M. & W. 843; and the assignment to the plaintiff was as to such logs, at least, a mortgage, and as to such was of no effect against the defendants for want of record. And why the after-cut lumber would not come within its terms as fast as severed from the soil is not altogether clear reasoning from the analogies of the law, or even looking at the adjudged cases. See Clajlin v. Carpenter, 4 Met. 580; Douglas v. Shumway, 13 Gray, 498; Sheldon v. Conner, 48 Maine, 584; Sawyer v. Gerrish, 70 Maine, 254.</p> <p>This permit was given’to two persons. They were joint owners. The assignment was evidently written for both to sign, but only one did sign. It carried at most only his interest and the assignee thereupon became part owner with the other original permittee. Where only one joint owner of chattels sues for their conversion, he can recover as damages only the value of his interest. 1 Chitty, PL (16th ed.) 75; Putney v. Lapham, 10 Cush. 234.</p> <p>Nor should a subsequent agreement that it should be considered the act of both, change the character of the transaction. Such an agreement could only be of use as an estoppel, the title would continue as before. Keables v. Christie, 47 Mich. 594; Claris v. Houghton, 12 Gray, 38; Patch v. Wheatland, 8 Allen, 102.</p> <p>The books maintain a wide difference between what are termed commercial partnerships and ordinary partnerships, such as are formed for mining, farming, logging and the like. And one who relies upon a contract made by one member only of a noncommercial partnership, must show affirmatively that such partner had power to contract for his associates- Such power is implied in the case of commercial partnerships only. Parsons, Part. * 99 and cases cited.</p>

<p>On report.</p> <p>Bill to redeem, heard on bill, answer and proof. The opinion states the facts.</p> <p>cited : Ghase v. McLellan, 49 Maine, 375; Bela v. Stanwood, 61 Maine, 51; Smith v. Kelley, 27 Maine, 237; Tufts v. Maznes, 51 Maine, 393; Stewart v. Davis, 63 Maine, 539; Fay v. Valentine, 5 Pick. 418; Fletcher v. Gary, 103 Mass. 475; Treat v. Pierce, 53 Maine, 71; Moulton v. Boioker, 115 Mass. 36.</p> <p>contended that the attorney had no authority to bring suit and that the suit did not operate as a waiver of foreclosure by publication.</p> <p>The authority of the attorney was as limited as it would be possible to make it. He was employed to do a particular thing in a particular way. He was, as to this matter, an attorney in fact. The relation of the parties was principal and agent, not attorney and client. The attorney was not at liberty to foreclose in any other way. 1 Livermore, Agency, 103-4.</p> <p>The most he could do was to make and publish a new notice if he regarded the first insufficient.</p> <p>The fact that the note and mortgage remained with the attorney did not extend the powers expressly limited. The utmost that can be inferred from that was authority to receive the pay on them, and the attorney testifies that that was the expressed object of leaving them.</p> <p>Counsel further contended that the second foreclosure by suit at law was not inconsistent with, nor waiver of the first foreclosure, because no actual possession was ever obtained under the writ of possession. The attorney testified, "I simply went down and took formal possession of the property, making no arrangement to continue possession.” Stewart v. Davis, 63 Maine, 544; Ghase v. Marslon, 66 Maine, 271; Smith v. Lar rabee, 58 Maine, 374; 2 Jones, Mortgages, § 1273 ; Fay v. Valentine, 5 Pick. 418.</p>

.On report. ©ill 'in equity to which a general demurrer was filed and 'joined. The case was then, by consent, reported to the law ■ court, upon the facts alleged, to make such decision and order ¡such decree as the rights of the parties required. 'The material facts are stated in the head note and opinion.

<p> Pauper. Settlement. Supplies to a person, non compos. </p> <p>A person, non compos mentis, who continues to reside with and be dependent upon his father for guidance and support by reason of mental imbecility, after he arrives at full age, and the conditions of filial subjection, dependence, parental control and support continue to subsist as before, is not thereby emancipated.</p> <p>Such person, not emancipated, cannot acquire an independent settlement by residence in a town for five successive years, but will follow the settlement of the father.</p> <p>Necessary supplies furnished by a town to such person will be deemed supplies furnished indirectly to the father, and will operate to prevent his gaining a settlement.</p>

On. REPORT. Beal action. The opinion states the case and material facts. This action was brought against the mother and such of her children as were on the land at the time. She died pending the suit and the six other' defendants thereupon, became parties. One of these has been defaulted. How does the case stand as to the other five ? If they had any title not derived by inheritance from their mother, they had no occasion or right to come into this suit to defend it.

Assumpsit on a policy of fire insurance for six hundred dollars on a dwelling house, and two hundred dollars on a barn, the dwelling house having been destroyed by fire, September 25, 1881. The opinion states the material facts. contended that there was a misrepresentation by the plaintiff, of his title in the property insured.

<p> Bailments. </p> <p>A bailee is not permitted to dispute the title of his bailor, but he may show that the bailor has assigned his title to another, since the property was entrusted to him. If legally assigned, and the bailee has notice of the fact, the bailee must account to the assignee. The rule that a bailee should not attorn to a stranger, does not apply; the assignee is not a stranger.</p>

<p> Paupers. Insanity. Marriage. Evidence. Expert. </p> <p>The law recognizes all the grades and varieties of mental imbecility under the general head of insanity, without troubling itself much about classifications or exact definitions. In a legal sense, mental unsoundness is insanity, and mental soundness is sanity.</p> <p>In questions involving insanity, the law applies different rules and tests according to circumstances; it tries to ascertain whether a person, alleged insane, is such in respect to the particular matter which is being investigated.</p> <p>A marriage is void, if, at the time it took place, the husband had not sufficient mental capacity to enable him to understand the nature of the marriage contract and of the marital relation, and to understand that he took upon himself the duties, obligations and responsibilities of that relation. The rule of competency would not require that lie should understand all the marital duties and obligations, but requires that he should understand that he assumes them whatever they may be.</p> <p>It is not erroneous to rule to a jury, as a further illustration of the test of competency, that a man would be considered incompetent to make the marriage contract, if he had not mental capacity enough to be able to provide a support for a family, when he is possessed of means sufficient for the purpose.</p> <p>Upon the question of the insanity of a person, the entire conduct of the individual through life may be taken into account, in order to judge how far it betokens mental deficiency.</p> <p>It is not erroneous for a judge to allow an expert to testify to his opinion that an alleged imbecile was not capable of understanding his duties towards his wife arising out of the matrimonial union, the issue being whether such imbecile had mental capacity sufficient to render his marriage a valid act.</p>

<p> Attorneys at law. Writs, endorsement of. </p> <p>Attorneys, signing their names upon a writ under a direction to the officer as follows : “Mr. officer, attach hay,” do not thereby become indorsers of the writ and liable for costs.</p> <p>Nor do they become indorse;'! of the writ by erasing the word “hay” and allowing their signatures to remain after giving verbal <ii¡ ections to the officer how to serve it.</p>