Volume 77 — Maine Reports

On report. Debt against the principal and his sureties on a poor debtor’s six months bond. The material facts are sufficiently stated in the opinion. contended that there was not a complete surrender of the debtor in the manner contemplated by the statute — such a surrender as would give the creditor the right to a disclosure from him.

On report. Bill in equity. Heard on bill and answer. The bill seeks to obtain the collection of an execution against Abram G. Garcelon, out of the properties in the name of his wife and son-in-law, paid for in whole, or in part, by the money of Garcelon, received by him as pension money from the United States.

<p>On exceptions and motion to set aside the verdict from the superior court.</p> <p>Assumpsit for pauper supplies furnished by the plaintiff town to Fred J. Fales from January to May, 1882, whose pauper settlement was alleged to be in the defendant town.</p> <p>At the trial it was admitted that the father of the pauper had his settlement in Chesterville at the time the pauper became of age, December 20, 1877. And an important question in the case was, whether the pauper had mental capacity sufficient to acquire a settlement of his own; his father, with whom he continued to reside, having acquired a new settlement in Fayette.</p> <p>The verdict was for the defendants.</p> <p>The plaintiffs requested the several instructions following, none of which were given except as appears in the charge.</p> <p>" iv. That if the jury find that Fred J. Fales, when he became twenty-one, had such control of himself and of his mind, that he was capable of free volition and had power to choose his home, then he had such capacity to acquire a settlement as the statute requires.</p> <p>"v. That to this end a lower degree of intelligence is required than in the making of a contract.</p> <p>"vi. That if the pauper, when he became twenty-one, had sufficient capacity to choose a residence and to form an intention to remain in it, that would constitute a capacity to acquire a settlement within the meaning of the statute, though he did not actually leave his father’s home.</p> <p>"vit. That the law does not require that he should have actually exercised his capacity of acquiring a settlement or of forming an intention, but simply that he should have such capacity.</p> <p>"vm. That the law does not require that the pauper should have actually formed any fixed intention with regard to a home, or should have actually chosen any new home, if he had sufficient mental capacity so to do under the rules already given.”</p> <p>The presiding justice instructed the jury as follows :</p> <p>"But there is also another rule fixed by the legislature with reference to the settlement of paupers, and that is, that a child shall have the settlement of his father, if he has any in the state, if not, of his mother, but not of either after he becomes of age and has capacity to acquire one for himself. He does not have the settlement of either the father or the mother acquired after he has become of age and has capacity to acquire one for himself.</p> <p>"Now you have already observed from the arguments of counsel and from the character of the testimony, that has been admitted here, that it is important to determine what may fairly and reasonably be supposed to have been in the contemplation of the legislature in using this phrase, "capacity to acquire one for himself.” That is, capacity to acquire a settlement. It seems to me, in the first place, that the legislature must have referred solely to the mental capacity. It seems to me that any other rule would be extremely unsatisfactory, unsafe and fallacious. It seems to me that bodily infirmities, bodily disease, could not be a safe and a reliable test to determine the capacity to acquire a settlement.</p> <p>"Suppose, for instance, that a beloved daughter were afflicted with pulmonary consumption at the moment she arrived at the age of twenty-one years, and should suffer from that disease for several years thereafter, and by reason of that should remain with her parents, apparently subject to their control and authority, and receives her support from them just as she did just prior to her arriving at that age. It would not, I apprehend, be contended for a moment, and has not, I may properly say here, been contended by the counsel for the defence, that in such a case there would be an incapacity, within the meaning of this statute, to acquire a settlement. And so suppose a son had returned from the army, having lost both arms, having lost the physical capacity to earn his living. It might be said that there was a moral fitness and propriety, flowing from considerations of sentiment and family affection, in his remaining in the family, apparently subject to the control and authority of the parents, and receiving his support from them, yielding the same kind of subjection and dependence as prior to his arriving at the age of twenty-one years. It would be an extremely unsatisfactory and fallacious test to say that by reason of his physical infirmities, his incompetency to earn his livelihood, he hadn’t capacity to acquire a settlement for himself, and therefore must be considered as a child after he arrived at the age of twenty-one years as before, if that feebleness or incompetency was, by reason of physical infirmity, prolonged into the maturer years.</p> <p>"I say to you, therefore, that the bodily diseases, the physical infirmities of a person are not the test by which to determine the capacity to acquire a settlement under this particular clause in the statute. They are admissible and material evidence only so far as they tend to throw light upon the mental condition.”</p> <p>The remainder of the charge upon the question to which the requests relate, and other material facts are stated in the opinion.</p> <p>We submit that the exclusion of the question to Dr. Martin was plainly wrong, and so far as we can find, stands unsupported by a single authority in England or the United States.</p> <p>The law of England has been conclusively shown to be uniform in admitting even non-professional witnesses to give their opinion on a question of mental condition.</p> <p>Opinion of Doe, J., in /State v. Pike, 49 N. H. 408 ; Hardy v. Merrill, 56 N. II. 227 ; see Robinson v. Adams, 62 Maine, 410; Hathorn v. King, 8 Mass. 371; Dickinson v. Barber, 9 Mass. 225; Com. v. Rich, 14 Gray, 337 ; Hastings v. Rider, 99 Mass. 622; Lewis v. Mason, 109 Mass. 175; Heald v. Thing, 45 Maine, 392.</p> <p>By R. S., c. 24, § 1, par. 6, "a person of age, having his home in a town for five successive years without receiving supplies as a pauper, directly or indirectly, has a settlement therein.”</p> <p>What is necessary to constitute a "homo” under the statute? The unvarying answer of the decisions is — residence coupled with intention. Warren v. Thomaston, 43 Maine, 406 ; Gardiner v. Farmingdale, 45 Maine, 537.</p> <p>If the pauper then on coming of age has capacity to form and retain an intention as to his home, his place of residence, he has that capacity to acquire a settlement which the statute demands.</p> <p>Such a rule should have been given to the jury in a simple form and such is the import of the requests. But the charge added new and complicated elements to these simple requirements of the statute, especially in the clause, "that he must be able to perform with some degree of intelligence the simple and common kinds of business usually and ordinarily involved in the act of talcing up a new residence.” Counsel cited : Taunton v. Middleboro, 12 Met. 37 ; Townsend v. Pejtperell, 99 Mass. 40.</p>

On exceptions and motion to set aside the verdict from the. superior court. The opinion states the case. The verdict was for seventy-two dollars and thirty cents, and; the defendant moved to set it aside and alleged exceptions to the-instruction recited in the opinion.

On report. Appeal from the decree of the judge of probate in allowing the account of James Low, as executor of the last will and testament of Francis Low, late of Clinton. The opinion states the facts.

<p>On report.</p> <p>The opinion states the case.</p>

On motion to set aside the verdict. An action to recover damages for personal injuries received by the plaintiff October 14, 1882, by reason of an alleged defect in a way. The writ was dated February 15, 1883. The plea was the general issue. The verdict was for defendants.

<p>Mortgage. Second. Growing timber, contracts for sale of. Statute of frauds.</p> <p>A mortgagor sold growing timber upon tlie mortgaged premises and gave the purchaser the following written permit: “Alton, Sept. 24th, 1882. This is to certify that Frank Porter has bought four hundred knees, more or less, of me, Hatcil Gott, on Lot No. 25, and has paid me in full ($70) seventy dollars. Hatcil Gott.” “And this is to certify that I, Hatcil Gott, do defend the above writing. Hatcil Gott.” The knees were severed from the soil and removed from the land and the stipulated price paid by the permittee before the mortgage was recorded or the permittee had notice thereof. Meld, in-an action of replevin by the mortgagee against the permittee that the title to the knees was in the defendant.</p> <p>Parol or simple contracts for the sale of growing timber to be cut and severed from the land by the vendee do not convey any interest in lands, and are not therefore within the statute of frauds.</p>

On report. An action by the collector of taxes of the town of G-lenburn to recover the taxes assessed against the defendant, a resident of ■that town, for the years 1874, 1875 and 1876. The writ was dated December 20, 1881.. The plaintiff was appointed collector December 10, 1881, to ■complete the collection of the 1875 taxes in the place of William B. Elliott who had deceased.

On exceptions and motion, to set aside the verdict. Assumpsit to recover five per cent commission on two sales of ice of five thousand tons each for one dollar and twenty-five cents a ton. The verdict ivas for the plaintiff and the defendant alleged exceptions Avhich are sufficiently stated in the opinion. The defendant also moved to set aside the verdict and for a new trial.

<p>II. 8. pension. XI. 8., B. 8., § § 4745, 4747, 5485.</p> <p>One who loans money to a pension claimant to enable him to establish his claim, and to be repaid when the pension money is received, is not debarred from recovering back Ms loan by U. S., R. S., § 5485.</p> <p>A verbal promise by a pension claimant, to pay a debt, when he receives his pension, or out of his pension, is not such a pledge, mortgage, assignment, transfer, or sale of the pension claim, as is forbidden by XT. S., R. S. § 4745.</p> <p>When the pension check has come into the hands of the pensioner, it is then at his free disposal, and its proceeds are liable to attachment, unaffected by U. S., R. S. § 4747.</p>

<p>On exceptions, and motion to set aside the verdict and for a new trial.</p> <p>An action by the administratrix of Edwin F. Chase, for personal injuries received in a collision with a train of cars controlled by the servants of the defendant at a private crossing in Richmond, February 24, 1882.</p> <p>The writ was dated July 3, 1882. The plea was the general issue. The verdict was for three thousand seven hundred eight dollars and thirty-three cents.</p> <p>The opinion states the material facts.</p> <p>The evidence tending to show that the deceased was a cautious man was properly admitted in this case, because his acts were not seen by any one. The precise act or omission was not shown by any witness. In most of the cases cited by the counsel, where evidence showing the habits as to care or the want of it was rejected, the reports show, that there was testimony of witnesses who saw the act, and in no one of the cases does the report disclose as an affirmative fact that the act itself was not witnessed,— not seen by any witness who testified in the case. Where the act is shown it speaks for itself, and evidence of character or reputation for care will not and ought not to be received to contradict the unmistakable language of the act itself. When the act is not seen then resort must be had to the next best evidence.</p> <p>The evidence objected to was admitted because it was the best and only evidence bearing upon that branch of the case. It is onljr to be resorted to when that is the case. "When the precise act or omission of a defendant is proved, the question whether it is actionable negligence is to be decided by the character of that act or omission, and not by the character for care and caution that the defendant may sustain.” Tenney v. Tuttle, 1 Allen, 185.</p> <p>But when the precise act or omission is not shown then you must go to the circumstances, and here character and reputation afford no little nor uncertain light. It rests upon the rule that, "The habit of an individual being proved, he is presumed to act in a particular case in accordance with that habit.” 28 Alb. Law J. 327, citing as illustrations: Eureka Ins. Go. v. Robinson, 56 Pa. St. 256 ; Hiñe v. Pomeroy, 39 Yt. 211; Vaughan v. Railroad Go. 63 N. C. 11; Kershaw v. Wright, 115 Mass. 361; Meighen v. Bank, 25 Pa. St. 288; Smith v. Glark, 12 Iowa, 32 ; Ashe v. EeRossett, 8 Jones (L.) 240 ; Shove v. Wiley, 18 Pick. 558 ; Union Bank v. Stone, 50 Maine, 595 ; Gookendorfer v. Preston, 4 How. 317.</p> <p>In Thomas v. Del. c6c. R. R. Go. 12 The Reporter, 739, Wallace, J., said that "the natural instincts of self-preservation in the case of a sober and prudent man stands in the place of positive evidence. Johnson v. Hudson River R. R. Go. 20 N. Y. 65.” See, also, Shaw v. Jewett, 6 Am. & Eng. R. R. Cas. 113 and authorities cited.</p> <p>cited upon the questions considered in the opinion: Allyn v. B. & A. R. R. Go. 105 Mass. 77; Dunham v. Rackliff, 71 Maine, 345; Robinson v. F. <& W. R. R. Go. 7 Gray, 92 ; Tenney v. Tuttle, 1 Allen, 185 ; 1 Greenl. Ev. § 84; Gahagan v. B. & L. R. R. Go. 1 Allen, 187 ; Wentworth v. Smith, 44 N. H. 419; Morris v. East Haven, 41 Conn. 252 ; Abbott, Trial Ev. 597 ; 2 Thompson, Neg. 1179 ; Gay v. Winter, 34 Cal. 153.</p>

.Bill in equity. Heard on bill, answer and proofs, ¡material facts found by the court. The opinion states the cited: Wilton v. Harwood, .23 Maine, 133 ; Rowell y. Jewett, 69 Maine, 303 ; Lewis y. Small, 71 Maine, 552 ; Ash v. Hare, 73 Maine, 403 ; Potter v. Jacobs, 111 Mass. 36 ; Somer.bg v. Buntin, 118 Mass. 287 ; Malins v. Brown, 4 Comstock, 403 ; Parlchurst v. Van Portland, 14 Johns. 15 '; Oaton v. Oaton, L. R. 1 Ch. App.

On report. Writ of entry to recover possession of lots fifty-eight and fifty-nine in Mars Hill. The opinion states the facts. cited : Ward v. Bartholomew, 23 Mass. 414 ; Sargent v. Simpson, 8 Maine, 148 ; Blaisdell v. Morse, 75 Maine, 542 ; Clark v. Pratt, 47 Maine, 55 ; Abbott’s Trial Ev. 101; Hatcher v. Rochelean, 18 N. Y. 86 ; Tolman v. Hobbs, 68 Maine, 316; Elwell V. Shaw, 1 Maine, 339; Hodgdon v. Burleigh, Law Eep. Nov. 16, 1880; Hodgdon v. Wight, 36 Maine, 338.

<p>On report.</p> <p>Real action to recover possession of lot sixty-six in Mars Hill.</p>

On exceptions and motion to set aside the verdict and for a new trial. An action to recover damages for personal injuries, and damage ito carriage, by reason of the alleged negligence of the servants of the defendant corporation in running and managing a locomotive and tender, causing a collision with the plaintiff’s carriage ;at Bridge street crossing in Belfast, February 17, 1882. The writ was dated March 15, 1882. The plea was not guilty.

<p>Bill in equity.</p> <p>Heard on bill, answer and proofs.</p> <p>cited: 1 Story, Eq. Jur. § 755 and authorities cited, § 765 ; Wilton v. Harwood, 23 Maine, 133 ; Pulsifer v. Waterman, 73 Maine, 244; Brown v. Lord, 19 Alb.Law J. 460 ; 16 Alb. Law J. 37 ; 17 Alb. Law J. 109 ; Kurtz y. Hibner, 8 Am. R. 665 (55 111. 514) ; O’Brien v. Elliot, 15 Maine, 127 ; Buck v. Swazey, 35 Maine, 53 ; Gilmore v. Patterson, 36 Maine, 549.</p> <p>The defendants rely upon R. S., o. Ill, § 1, and upon the unbroken line of decisions in this State from Stearns v. Hubbard, 8 Maine, 320, to the present, excepting the dictum in Pulsifer y. Waterman, 73 Maine, 233. The court must overrule the very recent case of Jellison v. Jordan, 68 Maine, 373, before it can order specific performance of an oral contract to convey real estate. The testimony of the plaintiff was inadmissible, one of the defendants being an administrator. R. S., c. 82, § 98; Trowbridge v. Holden, 58 Maine, 117; Burleigh v. White, 64 Maine, 23 ; Smith v. Smith, 1 Allen, 231.</p> <p>If it be said that this case does not come within the rule because Chase was not declared against as an administrator, then in a large number of cases the rule would be valueless and absurd. Every time an administrator is sued for holding personal property the plaintiff could in all cases let in his own testimony by not suing the administrator as such. Upon the question of resulting trusts, counsel cited; Farnham v. Clements, 51 Maine, 426; Dudley v. Bachelder, 53 Maine, 403; Gerry v. Stimson, 60 Maine, 189.</p>

On exceptions. Trespass guare clausum, in which the only issue considered by the court was as to the construction of the words of reservation recited in the opinion which were contained in a deed from the defendant to the plaintiff, dated October, 6, 1870. The plea was the general issue. At the trial the court ordered a nonsuit and to this ruling the plaintiff alleged exceptions.

<p>On exceptions.</p> <p>An appeal from the decree of the judge of probate upon the executor’s account in the estate of Daniel Brown, late of Portland, deceased, wherein the following items in the account were disallowed:</p> <p>“ Item No. 20. Oct. 14, 1881, paid taxes on North St. property for 1880 and 1881,........$113 98</p> <p>“Item No. 23. Oct. 28, 1881, paid taxes on Congress St. property for 1880 and 1881, ------. 149 10</p> <p>“Item No. 36. Paid Mrs. Austin’s bill of expenses of last sick- - ness (of deceased),....... . 206 75</p> <p>Disallowed in part, viz.: for $136.75.</p> <p>“Item No. 47. To commissions on $5272,31, - 263 10</p> <p>Disallowed in part, viz.: $82.43.</p> <p>The presiding justice ruled as a matter of law, after a hearing, that the appeal was not sustained and ordered the decree of the judge of probate affirmed. The appellant alleged exceptions.</p>

Bill in equity. Heard on bill, answer and proof. in an elaborate argument contended ithafc the plaintiffs had the exclusive right to cut the ice on Lily ¡pond, though it contained more than ten acres, in front of their land. By the English common law the right of property jus privatum, both in soil and water, existed in tidal and fresh waters. In tidal waters it was prima facie in the crown.

<p>On exceptions.</p>

On exceptions. Audita querela to vacate a judgment by default on a promissory note, rendered by this court in Androscoggin county, February 6, 1883, for eighty-four dollars and sixty-eight cents debt or damage and nine dollars and ninety-eight cents costs of suit, and for damages alleged to be five thousand dollars for the arrest and imprisonment of the plaintiff upon the execution issued upon that judgment.

<p>On report.</p> <p>Debt upon a tax collector’s bond.</p> <p>The facts are stated in the opinion.</p>

On exceptions. If the property stolen should have been set out with particularity then we ask to amend. Counsel cited : Gh'eenland v. Chaplin, 5 Exch. 243; Carew v. Rutherford, 10'6 Mass. 10, 11; Lake v. Mittiken, 62 Maine, 243 and cases; Kay v. Penn. R. Co. 65 Pa. St. 269; Shear, and Red. Neg. 10 et seq.; Burlamaqui on Law, 262; 1 Hil.

On report from the superior court. Trespass quare clausum for entering plaintiff’s premises and committing certain acts of trespass therein. The writ was dated November 17, 1882.

On exceptions. Bill in equity to obtain a construction of the will of Daniel E. Hall and to obtain the property belonging to that estate. The case has been before considered by the law court and is reported in 71 Maine, 326, where may be found a copy of the will and the construction placed upon it by the court.

<p>On exceptions.</p> <p>An appeal from the decision of the county commissioners of York county in laying out a highway in Acton. The exceptions were to the ruling of the court in accepting the report of the committee, appointed by this court, against the written objections of the appellants.</p> <p>The petition does not set out a case within the jurisdiction of the county commissioners, nor does the record of location. The way asked for in the petition, and the one laid out by the commissioners was wholly within the town of Acton. This record does not disclose in positive and direct terms a jurisdiction in the commissioners to do what they did do, and nothing is to be left to inference in such cases. Goodwin v. Co. Oom. 60 Maine, 328; Pettengill v. Go. Oom. 21 Maine, 382; North Berwick v. Go. Oom. 25 Maine, 69; Pownal v. Go. Oom. 8 Maine, 271; Bethel v. Go. Gom. 42 Maine, 478; State v. Oxford, 65 Maine, 210; Searboro v. Co. Com. 41 Maine, 604; Plummer v. Waterville, 32 Maine, 566 ; R. S., c. 18, § 1.</p> <p>The commissioners exceeded their authority in requiring fills. If they can fill one " hollow ” they can require a road to bo made level the entire length. They had no authority to require cattle guards. A majority of the committee cannot decide. The whole body must act. It would not be competent for two to proceed in the absence of the other, and determine the questions raised. It is not a case like those decided. 39 Maine, 223 ; 48 Maine, 358 ; 62 Maine, 519 ; 63 Maine, 265 ; 64 Maine, 262.</p> <p>It is not a case within R. S., c. 1, § 6, cl. hi, if it was there would be no necessity of the provision of the statute requiring the appointment of a person to supply a vacancy occurring by death, resignation or by becoming interested.</p> <p>cited: Harkness v. Go. Coin. 26 Maine, 353; Windham v. Co. Com. 26 Maine, 406; Minot v. Go. Com. 28 Maine, 121; Com. v. West Boston Bridge, 13 Pick. 195.</p>

On report. Trespass against a deputy sheriff for taking and carrying away ■plaintiff’s boat, September 30, 1882. The writ was dated ■October 21, 1882. The plea was general issue, and brief statement alleging that the boat was attached and held by the defendant on a writ against Thomas Bichardson of Deer Island, N. B. and was the property of Bichardson.

<p>Lien on logs. B. S., o. 91, § 38.</p> <p>A person who labors at hauling logs has a lien thereon for his personal services, and the services performed by his team if he has the rightful possession and control of the team, and is entitled to its earnings during the time the services-were rendered, though he may not own the same.</p> <p>When it appears that the services of the person, or that of his team, have in no way been performed upon the logs upon which he seeks to enforce his lien; or that the claim for services is so mingled and intermixed with other claims for which he is entitled to no lien, that it is impossible to distinguish between the two kinds; then no valid judgment in rem can be rendered.</p>

<p> Specific performance. Bond. Equity. Practice. </p> <p>When a bill in equity for the specific performance of a bond for the conveyance of certain land has been inserted in a writ on which an attachment has been made prior to the decease of the sole defendant, the administrator with the will annexed, the heirs of the testator and the residuary devisee may be brought in by a revivor although no service had been made upon the testator prior to his decease.</p> <p>Whether this should be done by a supplemental bill, or an original bill, in the nature of a revivor, quere.</p> <p>Where the testator died possessed of a large amount of real estate other than that embraced in the testator’s bond, and his widow is a residuary devisee, the complainant may bring in the heirs of the testator together with the residuary devisee.</p> <p>When the heirs, by their answer, disclaim all interest in the land sought to be conveyed, and allege the residuary devisee holds the entire interest, the bill may be dismissed as to them.</p> <p>Compensation in damages for not conveying land in accordance with the obligations in a bond, is not regarded as adequate relief, and the obligee may maintain a bill for specific performance.</p> <p>When such a bill prays for an accounting between the original parties, the administrator with will annexed is made a proper party; and the case will be sent to a master to state the accounts between them.</p> <p>The bill must contain an offer to pay any balance found due by the complainant.</p> <p>The plaintiff and his wife are incompetent witnesses to any matter which happened before the decease of the defendant, unless the administrator first testifies in relation thereto; but if the deceased party’s account books or other memoranda are used in evidence by the administrator, then the complainant and Ms wife may testify in relation thereto.</p>

<p>On exceptions.</p> <p>Assumpsit by the administrator of the estate of John E. Segar, deceased, on a promissory note for three hundred and fifty dollars, given the deceased by Nathan S. Earnum and the defendant.</p> <p>The action' was brought against bqth promisors and at the return term the plaintiff suggested the insolvency of Farnum and discontinued as to hirn.</p> <p>The verdict was for ninety-seven dollars and seventy-seven cents, and the plaintiff alleged exceptions to certain rulings of the presiding justice, which are sufficiently indicated in the opinion.</p> <p>The testimony offered by the plaintiff to contradict Farnum was upon a collateral point drawn out by plaintiff’s counsel on cross-examination of Farnum. The plaintiff was bound by Farnum’s testimony upon that collateral issue.</p> <p>Exceptions to the exclusion of testimony offered cannot be sustained, unless the materiality to some issue in the case is shown. 56 Maine, 204; 15 Maine, 67; 56 Maine, 535; 63 Maine, 410.</p>

On report. Assumpsit to recover the sum of three thousand dollars for a total loss by fire, November 22, 1882, of plaintiffs’frame building situated on the corner of Pine and Lisbon streets in Lewiston, Maine, under the defendant’s policy of insurance for that sum, written upon such building November 14, 1881, for the term of three years, and delivered to the plaintiffs by D. H. Holman.

On report. Assumpsit for money had and received. The writ was dated September 6, 1883. The plea was the general issue. The plaintiff is the niece of Mrs. Jane McCue, deceased, and brings this action to recover the balance due on the deposit made by Mrs. McCue in her lifetime, in the defendant bank. The plaintiff’ went with Mrs. McCue to the bank in March, 1878, when, by her aunt’s direction, an officer of the bank made this memorandum on the deposit book, Sub. also to Cath.

Oil exceptions from superior court. Assumpsit by the executors of the indorsee against the indorser of a promissory note of $400, dated at Lewiston, February 23, 1878, payable in three months, signed by M. A. Ward and Henry Hines. The plea was the general issue, with brief statement, that the consideration of the claim sued was for intoxicating- liquor sold in violation of law, and to be sold in this state in violation of law.

<p>On rerort.</p> <p>Trespass quare clausum for damage done to plaintiffs close in Waterford, in the month of April, 1882, by the defendant’s sheep. Damages claimed, fifteen dollars. The facts as found by the court are sufficiently stated in the opinion.</p>

<p>Executor's bond. Ji. 8., c. 64, § 9. Probate practice.</p> <p>Ail executor’s bond whicli omits to require the principal to account upon oath within one year is not conformable to statute.*</p> <p>An action upon an executor’s bond which is not conformable to statute, cannot be maintained in the name of the successor of the judge to whom it was given.</p>

<p> Probate practice. Guardian. Non compos. Certiorari. Prohibition. </p> <p>A petition, addressed to tile judge of probate, wliicli alleges that the petitioner is a friend of a person who has been adjudged by that court to be of unsound mind and incompetent to manage his own affairs, or to protect his rights, and that the person who was appointed guardian had refused to qualify for that trust, will give the probate court jurisdiction and authorize the judge, after notice and hearing, to appoint another person as guardian of the non compos.</p>

On exceptions to the ruling of the court in overruling defendant’s demurrer to the plaintiff’s declaration. The question presented by this writ and demurrer, is whether the master, who has full knowledge of the perils of a service, and orders his servant to dangerous work, of the danger of which he is ignorant, both from inexperience and from reliance upon the superior knowledge of the master, is liable for an injury received by the servant in such employment, Avhen ho is.

<p> Timber out on mortgaged premises. Meplevin. </p> <p>Timber trees wrongfully cut by the mortgagor, or a stranger, may be taken and held by the mortg-agee, or any one claiming under him; and neither the one who cut the trees, nor one who has purchased the trees of him, can maintain replevin for them.</p>

On exceptions from superior court. Debt to recover from the defendant a penalty of five hundred dollars for his failure to publish the statement required of him as treasurer of Oakland Manufacturing Company by the provisions of R. S., 1871, c. 48, § 8. The opinion states the facts.

On appeal. Bill of interpleader by the executor of the will of Mary Jane Low of Clinton against Francis Low, James W. Sylvester and Emily L. Chase, to obtain the instruction of the court to whom he shall pay the legacy and bequest to said Francis Low. James W. Sylvester claimed it by virtue of an assignment from the legatee dated December 20th, 1881, and he and Emily L. Chase, had each demanded of the executor the amount of the legacy.

<p>On report.</p> <p>An action to foreclose a mortgage on a lot of land in Augusta.</p>

<p>l£vide.n cc. Paupers.</p> <p>A casual remark, or expression of opinion of an overseer of the poor, not connected directly with some official act, is not admissible evidence against his town, upon the question of a pauper settlement.</p>

<p>On report as to the liability of trustee.</p> <p>The opinion states the material facts.</p>

Petition for increase of damages for land taken for a highway, located by county commissioners, filed at the December term, 1882. At the April term, 1888, of the commissioners, a committee of three was agreed upon and a warrant was issued to them. At the October term, 1883, of the Supremo Judicial Court, a return was filed with the clerk, signed by two of the committee.

<p> Deceit. Fraudulent representation. Action. </p> <p>J\.n action for deceit is not maintainable without proof of some actual loss resulting from the deceit.</p> <p>A. representation that the plaintiff was to have the same right in a store that a. prior tenant had enjoyed, the prior tenant having occupied the store for yeai-s under an oral letting, is simplv a representation tliat tlie plaintiff was to have a tenancy at will; and the fact, that the owner ejected Mm after thirty days notice, gives him ho right of action against the party making the representation.</p>

<p>Bill in equity by the executors of the will of Llewellyn Lithgow, late of Augusta, to obtain a construction of the will.</p> <p>contended that the town of Dresden had failed to accept the devise for the benefit of the cemetery upon the conditions named, and that, therefore, that devise, together with the residuum of the estate, remained undisposed of by the will.</p> <p>For the residuary clause was contingent upon the rejection by some legatee of a provision in his favor, and there has been no refusal to accept, in the sense in which those words are used in the residuary clause. Therefore the devise and legacy to Dresden, together with the residuary of the estate, belongs to the estate of Alfred Gr. Lithgow, a brother who survived the testator and was his sole heir, and should be paid to the executor of the Alfred Gr. Lithgow estate, and be by him passed over to Pauline C. Lithgow, as residuary legatee under the will of Alfred Gr. Lithgow.</p> <p>As the library has a substantial interest in the questions arising in this case, under an authorized arrangement, by which it is to be the recipient of such sums as shall be found coming to Augusta under the residuary clause, I take the liberty in its behalf to submit the following brief suggestions for the consideration of the court:</p> <p>I. The will of Mr. Lithgow discloses the intention to dispose of his entire property, and to make Augusta and Dresden his residuary legatees.</p> <p>He first provides for his wife and brother and other relatives of the family, and then manifestly intends that all the residue of his property shall go to Dresden, the place of his birth, and Augusta, where he had spent the larger portion of his active life and accumulated the most of his estate.</p> <p>He first makes to these towns certain specific bequests, and then constitutes them his residuary legatees. In making these bequests, it was his desire that a portion of them should be applied to certain cherished objects. He wished that a public library and reading room should be established in Augusta, on such solid basis as would- make it a permanent ■ memorial to his memory and a blessing to the citizens ; and that the cemetery in Dresden, where his ancestors reposed and where he expected to lie, should be cared for and kept in order through all coming time. These were objects worthy of the man and are entitled to be respected. To secure these cherished objects, the will provides in effect a penalty in case of refusal to comply with the prescribed conditions, that either town so refusing shall forfeit the full benefit of such legacy, and only receive a moiety thereof as one of the residuary legatees. The testator undoubtedly believed that this penalty would secure the accomplishment of his purpose.</p> <p>II. No refusal to comply with any of these conditions was necessary to make the towns residuary legatees. They are made such unconditionally. It would be an unreasonable and unwarrantable construction of the will to hold that the rejection of some of the specific bequests was necessary to entitle the towns to the residuary property* It would be to hold that the intended legatees must refuse to comply with the expressed wish of the testator to entitle them to his bounty ; and that if they did comply, he would cut them off. It would be making him say to them : If you carry out my desires, you shall not be my residuary legatees ; but if you will thwart them you shall. There is nothing in the language of the will that forces such an unreasonable constructioa.</p> <p>The residuary clause reads thus: " Should any one of the aforesaid devisees or legatees refuse to accept the devised estate upon the conditions named in the devise, then such parts, together with the remainder of my estate, I give, bequeath and devise one-half to the said town of Dresden, and the remaining half to the city of Augusta. ”</p> <p>To transpose the sentence, or to supply the ellipsis, would give the intention of the testator more clearly ; yet it is sufficiently apparent that it was his purpose to add any rejected devise to the residuary fund, and that this, constituting the remainder of his estate, was to go to Dresden and Augusta as his residuary legatees. As a careful consideration of the language and manifest purpose of the will, cannot fail, it is believed, to lead to the above conclusion, I do not think it necessary to elaborate the points to which I have thus briefly alluded.</p> <p>III. The bequest is of the "remainder of the estate, ” embracing real and personal property without distinction. It is not a devise of a specified parcel of land, half to A and half to B, but of many unspecified parcels, together with the residue of the personal property; and there would seem to be a propriety, as well as a convenience, if the executors could sell the real estate and make division of the proceeds, with the personal property, according to the will. They are in all respects well adapted to the successful discharge of such duty, and it would be agreeable to those I represent, to have them do it, if the court shall feel authorized to give such constructions to the law. E. S., c. 68, § § 11, 14.</p>

On report. Trespass to land, the object of the litigation being to settle the legal rights of the parties. A referee was appointed by the court to determine the facts and report them, with a plan, as a part of the ease to the law court. If the defendant had a right of way over the plaintiff’s land at the place claimed by him, plaintiff was to be nonsuited, otherwise, the defendant was to be defaulted for nominal damages.

On exceptions from superior court. The trustee disclosed. On the twenty-first day of November, A. D., 1883, I was attorney for Oliver Brown, the principal defendant, in this action to collect by process in admiralty, wages due said Brown as a seaman on board the schooner M. M. Chase, and for that purpose I filed a libel in behalf of said Brown in the United States district court for the district of Maine, and process was duly issued against said schooner, made returnable in…

Report on facts agreed. Debt on the official bond of James Holmes, guardian of Emma H. Pierce, minor. The action is brought in the name of the judge of probate, for the benefit of the ward. The material facts are stated in the opinion.

<p> Writ of possession. Officer. Trespass. Lease. Tenant. </p> <p>C held a written lease of real estate as trustee of F who was in possession. At the expiration of the lease the landlord brought an action of forcible entry and detainer against C, and obtained a writ of possession under which the officer removed F’s goods from the premises, and F sued the officer in trespass for that act. Held, that the officer had the right and it was his duty, in serving the writ of possession, to remove F and his goods from the premises.</p>

On exceptions. Forcible entry and detainer, begun in the police court of Bangor, January 27, 1883, to recover possession of a farm in Orrington. The action came to this court at the request of the defendant, upon the pleading and brief statement, as involving the title to real estate.

On report from the superior court. Assumpsit on three promissory notes dated June 27, 1879, for $1000, $1500 and $1200 respectively. Held: that a creditor shall not bring an action where others have been induced to join him in a composition with the debtor, each party giving the rest reason to believe that, in consequence of such engage ment, his demand will not be enforced.

On report. The first aetion is audita querela against a judgment creditor The second action is trespass against the sheriff for the acts of his deputy, N. P. Clapp, in serving- the execution and levying the same upon the plaintiff’s property. The original writ of Sarah J. Savage v. Inhabitants of Kmb den, was dated July 12, 1882, and was to recover the amount of certain coupons, due and unpaid, cut from town of Embden bonds.

<p> Certiorari. Bemoval of city marshal of Portland by mayor and aldermen. Practice. Special stats. 1877, a. 346; 1878, c. 16. </p> <p>"Where an officer is “ subject after hearing to removal by the mayor, by and with the advice and consent of the aldermen,” the hearing must be by the “board of mayor and aldermen.” A hearing by the aldermen alone is not sufficient, even if by the officer’s consent.</p> <p>Where an officer is removable in the manner above stated for “ inefficiency or other cause,” the mayor and aldermen must find sufficient cause to exist as matter of fact, and so adjudicate, before a valid order of removal can be made. An omission to pass upon the truth of the charges, invalidates the order of removal.</p> <p>Where upon a hearing of a petition for a writ of certiorari the presiding judge, with the consent of the parties, rules pro forma only, that the petition be dismissed, without exercising his own judgment, the law court may entertain exceptions, and upon them, determine whether the writ should issue.</p>

On exceptions from superior court. Indictment against defendant corporation for alleged negligence in the running of a locomotive engine, in Hallowell, June 17, 1884, whereby one Henry M. 0. Benner, was instantly killed. After the cause had been opened to the jury, and evidence put in on the part of the government, but not concluded, the prosecuting attorneys were allowed to enter a nolle prosequi against the defendant’s objection, and the defendant alleged exception.

On report. Trespass, by the administrator of the estate of Monroe Hill, for •cutting and carrying away timber from the timber lands of the intestate by one holding a conveyance of the same from the heirs •of the intestate. The writ was dated April 7, 1881. The material facts are sufficiently stated in the opinion.

On report. Writ of entry dated December 15,1882, to recover possession of certain land in Columbia Falls. The plaintiffs are trustees under the will of Louisa J. Bucknam, and claim title to the locus under the fifth paragraph of the will, ■which reads as follows: Fifth.

<p> Promissory notes. Consideration. Assignment. </p> <p>The treasurer of a savings bank made his note for two thousand dollars, running to the bank, and secured it by an assignment of a life insurance policy on Ms own life, for the purpose of making up to the bank a loss on loans for which he was neither morally nor legally responsible. After his death the trustees of the bank found the note and policy, which was the first knowledge they had of the existence of either, and they applied the insurance money first to the payment of the note, and the balance they delivered to the executor of the deceased treasurer. Held:</p> <p>1. That the note was without consideration and void.</p> <p>2. That the assignment of the policy was void for want of a delivery.</p> <p>3. That the amount applied by the trustees towards the payment of the note should be allowed as a credit in an action by the bank against the executor to recover any balance that may have been due from the treasurer to the bank.</p>

<p> Mortgage. Foreclosure. Redemption. Limitations. Stat. 1849, c. 105. </p> <p>Stat. 1849, c. 105, relating to the foreclosure of mortgages, applied to mortgages in existence at the time of its enactment, and under it a foreclosure is ineffectual when there is an omission to have recoz’ded “an abstract of the writ of possession with the time of obtaining the possession.”</p> <p>The right of redemption is not lost by lapse of time when the mortgagor remains in possession of the premises and occupies for himself and not for the mortgagee.</p> <p>When tile interest of a deceased person in real estate is that of mortgagee it passes to his administrator as assets, and his widow and heirs can convoy no title except through the administrator.</p>

On exceptions. An appeal from the decree of the judge of the court of insolvency, granting a discharge to Cyrus N. Fogler, insolvent debtor. The material facts are stated in the opinion. contended that the insolvent was a merchant or trader, ” and kept no cash book. The fact that the trading in mining stocks was a separate and independent business, does not of itself have any tendency to exclude such trading from the penalties of the law.

On report. Trespass for cutting timber on plaintiffs’ land in La Grange. The case was reported to the law court to determine the true construction of the reservation in defendants’ deed-to plaintiffs, recited in the opinion, the case to be sent back to be tried upon the principles determined by the court.”

<p>On report.</p> <p>Bill in equity to restrain the defendant from building a certain wharf at Bar Harbor, on the ground that it will lie directly in front of the plaintiff’s land and materially obstruct the access to it by water.</p> <p>Tobias Lord formerly owned the land now owned by each of the parties to this suit. He conveyed the defendant’s lot December 27,1869, by deed containing the following description : "A certain lot or parcel of land situated in Eden aforesaid, and bounded and described as follows, to wit: Commencing at a birch tree seventy feet south of the steamboat wharf; thence south fifty-one degrees west, to the northeast corner of the Martin house, one hundred and sixty feet; thence south, nine degrees west, to a stake, forty feet; thence north eighty-eight degrees east, one hundred and twenty-seven feet at two birch trees; thence north, forty-four degrees east, seventy feet to a birch tree on the bank ; thence following the shore to the point of beginning — including all the privilege of the shore to low water mark, containing one-half of an acre more or less.”</p> <p>He conveyed the plaintiif’s lot by deed dated August 14, 1875, and containing the following description: " A certain lot of land, situate in said Eden, at Bar Harbor village, so called, and bounded as follows, viz : Southerly by land of Stephen Higgins; northerly by the sea or ocean ; easterly by land this day conveyed by me to Alfred Yeazie ; and westerly by a line running parallel with said Yeazie’s westerly line, and ninety feet westerly therefrom, which last named line is a straight line running from a point ninety feet westerly of said Yeazie’s southwest corner, in the line of said Higgins’ lot; thence northerly parallel with said Veazie land and ninety feet distant therefrom, without any angle or diversion, to and across the flats or shore to low water mark of the sea, together with right of way to said premises from the road, along the present travelled path, the same as now used, for all purposes, this deed being subject to the same right of way across the premises aforesaid.”</p> <p>The plan referred to in the opinion is given on the page following this.</p>

On exceptions from the superior court. An action to recover for personal injuries received by reason of a defect in a way. The verdict was for the defendants and the plaintiff alleged exceptions. The material facts are well stated in the opinion.-

<p> Equity. Trusts. Agreement to sell real estate. Mortgage of equitable estate. Attachment. Assignment. </p> <p>It is a fundamental-rule in equity tliat “ what ought to he done is considered as done.”</p> <p>Wlien one executes and delivers to another an agreement to convey land to him, for a fixed price payable at certain future clay, he thereby transmits an equitable estate; and the equitable vendor thereupon becomes the trustee of the estate for the equitable vendee, retaining the legal title as security for the purchase money, and the vendee, the trustee of the purchase money for the vendor.</p> <p>Such an equitable interest the vendee may incumber by a mortgage .which the mortgagee may assign; and when the assignee gives to the vendor notice of the mortgage and of the assignment, the latter thereupon becomes the trustee of the assignee and liable to convey the property to him on seasonable payment or tender of the agreed purchase price.</p> <p>Where the assignee, after seasonable tender of the purchase price, brought a bill against the vendor for a conveyance, mating a creditor of the vendee (who had attached the latter’s interest under the agreement in an action still pending) a party defendant; such defendant not having tendered the purchase price, cannot set up that the mortgage and assignment were fraudulent as to creditors.</p>

Bill in equity. Heard on bill, answers and proof. Washington B. Bragg, one of the respondents filed no answer and entered no appearance, but there was no motion to take the bill jiro confesso as to him. The defendants, Lawrence, Phillips and Company, Fairfield Furniture Company, J. A. Gilley and Company, The Maine Manufacturing Company, E. Totman and Company, N. Totman and Sons, Stephen A. Nye, and A. H. and C. E. Duren, joined in one answer.

<p> Shipping. Master. </p> <p>Whether a contract entered.' into between two of .several part-owners of if. vessel, wherein they mutually stipulate that each shall sail the vessel as-master alternate years, is void as against public policy — quere.</p> <p>Assuming such a contract to be valid, the true construction of it is, that each shall sail the vessel alternate yeais, only so long- as he performs the high and responsible duties of master with that degree of care, attention, prudence and fidelity which the law demands; and when he fails to do that, he can no longer invoke the aid of the contract against the other.</p>

<p> Shipping. Earnings. Action by part owner against master. </p> <p>An action for money had and received cannot be maintained by a part owner (not the ship’s husband), for liis share of the freight money, against the master, who collected and remitted the same to the ship’s husband after receiving a written notice from such part owner to remit Ms share to him.</p>

On exceptions. This was an action for pauper supplies — the issue being whether the pauper had his home in defendant town for five successive years. Yerdiet was for the defendants.

<p>On report.</p> <p>The case and the material facts are stated in the opinion.</p>

<p> Waters. Improvement company. Driving logs. Streams. Dams. </p> <p>A corporation was chartered by the legislature and authorized to make such improvement to the upper Androscoggin river, and the chain of lakes and their connecting streams as 'would “facilitate and render more convenient the drifting, or driving of logs, masts, spars and other timber, by removing obstructions, building dams, wing dams, gates, piers, booms and'so forth;” and it was further authorized to demand and receive a specified toll upon every log' that should pass its dam at the outlet of Big lake, and an additional toll for passing the dam at the outlet of Richardson lake. Held,</p> <p>1. That the company was bound to grant and render, in a reasonable manner, to any one paying such tolls, all the facilities that it has acquired and controls in derogation of the common right, by authority of its charter.</p> <p>2. That the wants, desires or demands of a particular share-holder in such company cannot abridge or modify the duties and obligations of the company to the log owners.</p> <p>3. That it is not material who are the owners of the lands upon which the dams arc built so long as the company maintains them for the purposes expressed in its charter.</p>

On exceptions. The defendant demurred to the declaration which was as follows : In a plea of the case, for that the said defendant on the eighteenth day of February, A. D. 1884, with force and arms broke and entered the plaintiff’s close, situate in said Whitefield, bounded and described as follows, to wit: northerly by land ■occupied 'by Peter Dunton and land of Russell Place; easterly by land of Russell Place and land of William Cookson ; southerly by road leading to…

<p>On exceptions from superior court.</p> <p>The opinion states the case.</p> <p>cited: Howe’s Practice, 268 ; Chitty, Pr. 910; 1 Arch. Pr. Com. PL 173-188 ; 2 Arch. Pr. Com. Pl. 251; 5 B. & Cr. 178; 1 B. & Cr. 110: 3 Bing. 290; 2 H. Bl. 374; 2 Esp. 482, (note) ; 7 D. & E. 372; Watterman, Set-off, 749; Gale v. Hoysradt, 7 Hill, 179; Wooster y. Burr, 2 Wend. 295; Dana v. Gill, 20 Am. Dec. 255; Merchants’ Bank v. Bawls, 50 Am. Dec.-394; Haskell v. Whitney, 12 Mass. .47 ; Locke v. Wood, 16 Mass. 317 ; Shaw v. Boland, 15 Gray, 571; Lowell v. Merrimack M’f’g Co. 11 Gray, 382; Truro v. Atkins, 122 Mass. 418.</p> <p>The plaintiff may voluntarily become nonsuit as a matter of right, without the consent of the defendant, on leave of court. Haskell v. Whitney, 12 Mass. 47; Burbank v. Woodward, 124 Mass. 357. But after a cause has been opened to a jury and evidence offered, the plaintiff can not become nonsuit as a matter of right.</p> <p>At common law, the plaintiff could become nonsuit at any time before verdict. 7 Watts, 496; 9 Watts & Serg., cited in Theobald v. Oolby, 35 Maine, 179. But the courts of Massachusetts and Maine hold otherwise. Haskell v. Whitney, supra ; Locke v. Wood, 16 Mass. 517 ; M.eans v. Welles, 12 Met. 361 ; Shaw v. Boland, 15 Gray, 571. The case last cited would seem to be conclusive upon the point in issue. The case at bar is much stronger for the defendants than that, because in that case the defendant had offered.no evidence whatever, while in this case, the defendants’ evidence had been put in, and the evidence on both sides closed.</p> <p>The court, in this state, has never expressly decided the question, so far as we have been able to learn. But as intimating the view of our court, we would call attention to Lyon v. Sibley, 32 Maine, 576, where the principle was recognized by these words : " After evidence on both sides, the defendant has a right to insist that a verdict be rendered. ”</p> <p>There is one modification of the rule. It is this : Where, in the course of a trial, by reason of some accident or surprise, injustice would otherwise be done the plaintiff, the court may grant a nonsuit, not as a matter of right, but in its discretion for good cause shown. Com. Dig. Pleading, w, 5; Phelps v. Hchard, Cro. Jac. 35; Means v. Welles, supra. But that modification does not arise in this case, because no occasion had arisen to call for its application, the plaintiff’s counsel did not claim a nonsuit on such ground, and if it had been thus claimed, and the court refused it, no exception would lie to such a ruling, it being within the discretionary power of the court. Bicker v. Joy, 72 Maine, 106.</p>

Bill in equity. Heard on bill, answer and proof. The opinion states the material facts. The bill of sale of the vessel and the agreement to re-transfer did not constitute a mortgage. The title to the vessel was to remain in Titcomb until he should re-transfer the same to Williams and Dean. The estate was not to revest in them upon the payment by them of the notes. It was to be transferred to them.

<p>On retort from the superior court.</p> <p>This was an action under the statute against the defendant as an innkeeper for the loss of the articles enumerated in the headnote on the tenth of September, 1880, while the plaintiff was a guest at the defendant’s house, Augusta House. The plea was the general issue with a brief statement that the property lost was not of such a character as to impose any liability upon the defendant.</p> <p>By It. 8., c. 27, § 8, an innholder against whom a claim is made for loss sustained by a guest, may, in all eases, show that such loss is attributable to the negligence of the guest.</p> <p>We submit that the plaintiff was guilty of what in law is to be (under the circumstances of this case) regarded as negligence in carrying in an ordinary trunk, such property as that, for the alleged loss of which compensation is claimed in this action.</p> <p>In Fowler v. Dorlon, 24 Barb. 384 and Trieber v. Burrows, 27 Md. 130, the court held that if a guest carries a large sum of money in his valise, and conceals the fact from the innkeeper, and allows the valise to be treated as mere baggage, be is guilty of gross negligence.</p> <p>Again sec. 7 of the same chapter provides as follows, viz. :</p> <p>" Innholders are not liable for losses sustained by their guests, except for wearing apparel, articles worn or carried upon the person to a reasonable amount, personal baggage, and money necessary for traveling expenses and personal use, unless upon delivery or offer of delivery, by such guests, of their money, jewelry, or other property, to the innholder, his agent or servants, for safe custody.”</p> <p>The articles lost cannot be considered wearing apparel. Nor as articles worn or carried upon the person. They might be so worn, it is true, but it is just this the plaintiff did not do. Had she done so they would not have been lost. The defendant is liable for such property worn or carried upon the person, but not when carried as in this case. Neither as personal baggage nor money necessary for traveling expenses. A proper sum of money is classed as personal baggage by this court in 74 Maine, 225.</p>

On motion to set aside the verdict and on exceptions. This was an action of the case for damages for a personal injury sustained on the twenty-ninth day of December, 1879, by a collision with the defendant’s horse and sleigh, driven by him on State street, in Augusta. The case has been at the law court before, and is reported in 75 Maine, 364.

On report. Assumpsit on subscription to stock in the plaintiff corporation.

On retort. The opinion states the case and material facts. The decree of alimony is void in toto. The jurisdiction and powers of the court in matters of divorce, are derived solely from the statutes, and limited and controlled by them. Henderson v. Henderson, 64 Maine, 419 ; Stratton v. Stratton, 73 Maine, 481: Bacon v. Bacon, 43 Wis. 197; Barker v. Dayton, 28 Wis. 367.

On exceptions from superior court. Indictment for keeping a drinking house and tippling shop. The respondent seasonably before trial, moved for a bill of particulars. The motion was overruled.

On exception from the superior court. An action to recover damages for personal injuries received by Bridget Welch, the female plaintiff, by reason of a defect in Cotton street, Portland. The verdict was for the defendant. The opinion states the material facts disclosed by the exceptions. cited: Larkin v. Boston, 128 Mass. 521; Rogers v. Shirley, 74 Maine, 147 ; Porter v. 'Sevey, 43 Maine, 519; Hubbard v. Fayette, 70 Maine, 121.

Bill in equity. Heard on bill, answer and proof. The bill is by the executors and residuary legatees and devisees of Timothy W. Gorham, late of Norway, deceased, testate, against the administrator of the estate of Emily G. Gorham, widow of Timothy W. Gorham, she having deceased. The bill requested the instructions of the court: 1. Whether any, and what debts contracted by said Emily shall be paid by said executors. 2.

On exceptions. Writ of entry to recover possession of certain real estate in Pittsfield. The plaintiff claimed under a mortgage given by ■Cyrus S. Noble to James F. Connor, April 7, 1866, to secure a mote of five hundred dollars, payable in one year. The mortgage was assigned to the plaintiff July 1, 1866, but it was admitted that the suit was brought for the benefit of Connor, who was the Teal party in interest.

<p>On report.</p> <p>Assumpsit on the account annexed.</p> <p>The following is a copy of the letter of the defendant referred to in the opinion.</p> <p>"Oxford, March 2, 1876.</p> <p>" Mr. Perry, Dear Sir : — I have neglected to write you before, as I have been looking over your account, that I might know about our affairs. I find that you have charged in your account a number of bills of costs, where we recovered damages and some of them of considerable amount, that you have received. After making some deductions for irregularity, I find my account more than yours. I have other accounts that I ought to have allowed, besides my sheriff bill. I think on a fair settlement you would be owing me more than one hundred dollars. When we meet we will talk it over.</p> <p>Yours truly, Moses Chesley.”</p>

On exceptions by both parties and motion of the defendant to set aside the verdict.

On report. Bill in equity brought for the redemption of two mortgages held by the defendant. The plaintiff claims the right to redeem by virtue of a deed under an officer’s sale on execution to the Newport Savings Bank, April 10, 1880. The bill was brought in the name of the receiver, as receiver.

On report. Assumpsit ou account annexed for boarding, clothing and '■caring for John Hutchinson, an alleged pauper. There was also •a general count of indebitatus assumpsit. The opinion recites the material facts.

On report of bill, answer and agreed statement of facts. Bill in equity by ten inhabitants and tax payers of school district No. 5, in the town of Weld, against the collector of taxes to restrain him from collecting a school-district tax. The district voted to build a new school-house and voted to raise five hundred dollars for that purpose.

<p>Liens on logs. Pleadings. Attachment. Plantations. JS. S., c. 81, § 26. “ Unincorporated place."</p> <p>In an action to enforce a lien on logs it is not necessary to allege in the writ the ownership of the logs, or that the owner was unknown.</p> <p>An officer attached a lot of logs containing three million feet, and in his return estimated the logs at six hundred thousand feet. Held, the error was one of judgment which did not invalidate the attachment.</p> <p>Where the owner of logs up on which there is a lien so intermingles them with other logs of the same mark that the former cannot be distinguished, it is the duty of the officer, in. serving a writ brought to enforce the lien, to attach the whole lot.</p> <p>Attachments of personal property that may be preserved by recording as provided by R. S., c. 81, § 26, when made in a plantation, which is organized and has a clerk’s office, should be there recorded.</p> <p>A plantation which has a clerk and other plantation officers is not an unincorporated place within the meaning of R. S., c. 81, § 26.</p>

On report. Real action to recover the possession of certain premises in Chesterville. The opinion states the material facts. The word remainder,” as used in the will, has a well settled legal signification, viz : A remnant of an estate in land, depending upon a particular prior estate, created at the same time, and by the same instrument, and limited to arise immediately on the termination of that estate, and not in abridgement of it.” 4 Kent. Com. 197.

On report. Assumpsit on a promissory note. The case has been once before considered by the law court and is reported in 75 Maine, 407. The question presented by the present report relates to the charging of the alleged trustess. The trustees are the executors of the will of Thomas M. Reed, late of Bath, deceased. The principal defendant had a legacy in the will of one thousand dollars.

On report. The case has once before been at the law court and is reported 75 Maine, 105. Trespass against the treasurer and collector of taxes for the city of Rockland. The opinion states the material facts. The report provided that if the plaintiff was entitled to recover, the defendant should be defaulted and the damages be assessed by a jury.

On report. Forcible entry and detainer commenced in the municipal court of Biddeford and brought to this court on the pleadings. The plaintiff claims title from a mortgage by Alice E. Hatch to William G. Getchell, dated February 6, 1879, which Getchell proceeded to foreclose March 1, 1882. The mortgage contained the one year foreclosure clause. April 16, 1883, Getchell conveyed the premises by warranty deed to the plaintiff.

On report. Action of dower. The following is the agreement referred to i in the opinion : [Agreement.] IT. S. revenue Stamp, 5 cents. Whereas, a libel for divorce from bed and board,, Joanna Woods, Libellant, vs. her husband, Samuel: Woods, is now pending in the Supreme Judicial, Court, Kennebec County. It is hereby agreed: between said Samuel Woods and Joanna Woods,, as follow : 1.

On report of the presiding judge. Bill in equity, heard on bill and demurrer.

<p>On report.</p> <p>Bill of interpleader against the city of Belfast and the other preferred stockholders of the plaintiff corporation.</p> <p>An interlocutory decree was made, directing that the city of Belfast interplead with the other defendants, named in the bill; and that the case proceed upon the bill and answer of the city of Belfast, taken as a bill, and the answer of the other defendants, taken as an answer, the city of Belfast having, by its answer, substantially adopted the allegations of the bill.</p> <p>The case was then reported to the law court on bill, answer and agreed statement.</p> <p>The opinion states the facts.</p> <p>cited: Bates v. And. & Ken. It. B. do. 49 Maine, 491; B. & M. D. B. B. Go. v. Unity, 62 Maine, 148; Revere v. Boston Oojpper Go. 15 Pick. 363 ; Lockhart v. Van Alstyne, 31 Mich. 76; Taft v. Railroad Go. 8 R. I. 310; Williston v. M. 8. & K. I. R. Go. 13 Allen, 400 ; St. John v. Brie R’y Go. 22 Wall. 136 ; Union Pacific R. R. case, 99 U. S. 402; Sioux Oity & Pacific R. R. Go. in error v. United Stales, decided in the United States Supreme Court, January 21, 1884.</p> <p>Counsel concluded : We think we have established the following proposition-'.</p> <p>1. That the preferred stockholders are merely stockholders in the corporation and not creditors of the corporation, and, therefore, the rights of creditors to the property of the corporation are superior to the rights of the preferred stockholders as fully as they are superior to the rights of the common stockholders.</p> <p>2. That as between the two classes of stockholders, the debt is a burden equally upon both classes ; that neither can throw the burden of the debt upon the other; but that both must contribute to its payment.</p> <p>3. That dividends can be made to the preferred stockholders only when they can be made to both classes, provided the net earnings are sufficient; that is to say, the preferred stockholders cannot have a dividend and at the same time require that the portion of the earnings which would go to the common stock if there was no debt, be applied to the payment of the debt.</p> <p>4. That a dividend can be made from the net earnings only when there are net earnings which can properly be applied to a dividend on stock, without regard to whether it is preferred or non-preferred stock.</p> <p>5. That the city as a holder of stock has a right to object to the claim of the preferred stockholders to have dividends made to them and the balance of the earnings carried to the sinking fund; and has the right to require that all the net earnings shall be carried to the sinking fund until the debt shall be paid.</p> <p>II. But if the city has no right as a holder of common stock, to object to this claim of the preferred stockholders to have the net earnings paid to them in dividends, we hold that it has such right as a creditor.</p> <p>We have already shown that all the net earnings will be required to make a fund sufficient to pay the debt of the city when it becomes due.</p> <p>There can be no doubt that the city, as a creditor, has the right to be paid even though no dividends are paid; its rights as a creditor are superior to those of any stockholder as a stockholder. The city then has the right to resist the claim of the preferred stockholders, and to demand that the action of the directors, in making provision for the payment of the debt to the city when it matures, shall be sustained.</p> <p>cited: B. & M. Railroad v. Brooks, 60 Maine, 577; A. & M. Turnpike Oorp. v. Gould, 6 Mass. 40 ; K. & P. R. R. Oo. v. Kendall, 31 Maine, 474; B. & M. Railroad Go. v. Moore, 60 Maine, 567 ; Am. L. Eeview, January, 1884, p. 50; Taft v. II. P. & F. R. R. Oo. 8 E. I. 310; Thompson v. Erie Railroad, 42 How. (N. Y.) Pr. Eep. 93 ; In re Bangor, So. Slab Go. L. E. 20 Eq. 59 ; Burt v. Rattle, 31 Ohio St. 116 ; Davis v. Prop’rs Ohurch in Lowell, 8 Met. 321; Lewey’s I. R. R. Oo. v. Bolton, 48 Maine, 455; Eedf. Eailways, § 237; March v. Eastern R. R. Go. 43 N. H. 515 ; Oldtown S L. R. R. Go. v. Veazie, 39 Maine, 577 ; 2 Story’s Eq. § 1231; Niokals v. K. Y. L. E. S W. R. R. 15 Fed. Eep. 579 ; Union Pacific R. R. v. U. 8. 99 U. S. 496 ; St. John v. Erie Ry. 10 Blatch. 279 ; S. C. 22 Wall. 148 ; 31 Mich. 79; Morawetz, Corporations, § 405; Henry v. Great Northern R. R. 1 DeG. & J. 606; Sturge v. Eastern Union R. R. 7 DeG. M. & G. 158; Williston v. Michigan Southern, 13 Allen, 405 ; Green’s Brice’s Ultra Vires, 164, 173; Bates v. And. R. R. 49 Maine, 503 ; Gorry v. Londonderry R. R. 29 Beav. 263, (30-L. J. (Ch.) 290) ; Jones, Eailroad Securities, § 620 and cases; Matthews v. Great Northern R. R. 5 Jurist. N. S. 284; Webb v. Earle, 20 Law Eep. 556 ; W. G. S P. R. R. v. Jackson, 77 Pa. St. 325 ; 1 Lindley, Partnership, (2 ed.) 781; Barnard v. Vt. S Mass. R. R. 7 Allen, 521; Pratt v. Pratt, 33 Conn. 446.</p> <p>Counsel concluded: We think we have established the right of the preferred stockholders to a six per cent dividend while the Maine Central lease is in force, and that they are entitled to a decree of this court,- as prayed for in their answer that a semiannual dividend of three per cent be paid from the rental received in November, 1882, now in possession of the corporation, and a like semi-annual dividend from the rental, as and when received by the corporation, pending said Maine Central lease and the existing indebtedness of the corporation, be borne and paid by the corporation, without burden upon the preferred stockholders.</p>

<p> Sales. Warranty. Caveat emptor. </p> <p>A sale of leather by the manufacturer to a manufacturer of shoes for the specific purpose of being manufactured into shoes, carries an implied warranty, that the leather is sound, suited for the purpose for which it was bought.</p> <p>The doctrine of caveat emptor does not apply when the defect is latent.</p> <p>Such sale by a dealer carries the same warranty when a latent defect is known to and concealed by him. After such sale, when the defect becomes known, the purchaser may elect to sue for breach of warranty or for deceit, or may repudiate the sale and restore the articles purchased and reclaim the price paid.</p>

On exception to the ruling of the court, in overruling the second demurrer mentioned in the head note. The writ was dated February 25, 1884.

On report of facts agreed. Assumpsit on the following coupon : The plaintiff was cashier of the Biddeford National bank, and received the coupon from a stranger across the bank counter and paid thirty dollars for it. He noticed at that time the figures $3. ’’upon the lower left hand corner, but relied upon the printed word Thirty” in the body of the coupon, as indicating the true amount payable thereon.

<p>Equity. “Judgment creditor." Nulla bona. B. S., c. 46, § 62. Statute of limitations. Corporations. Directors. Trusts.</p> <p>When a creditor seeks by a process in equity to reach equitable interests, ■ dioses in action, or the avails of property fraudulently conveyed, fdr the payment.of debts, (not by virtue of the R. S., c. 77, § 6, part 10,) the bill should state that execution has been taken out on a judgment against the debtor and nulla bona returned thereon.</p> <p>The official return on the execution is the only sufficient evidence that a debt cannot be legally collected, and a demurrer to a bill, which alleges the insolvency of the debtor, is not a waiver of a right tp ask for a production of such evidence.</p> <p>No chancery jurisdiction, however enlarged takes upon itself the collection of legal debts before legal remedies are exhausted.</p> <p>The words “judgment creditor ” in R. S., c. 46, § 52, mean a judgment creditor who has first exhausted all legal remedy. In a creditor’s bill against a corporation, in which. its officers are made parties only in their representative character, discovery may be had from them, but relief cannot be had against them; the decree for relief goes against the corporation.</p> <p>Upon legal titles and legal demands courts of equity adopt and apply statutes of limitations acting upon them by analogy to law.</p> <p>The directors of a corporation hold the corporate property under an implied or constructive trust for the benefit of creditors. It is not an .express trust, not a purely equitable trust, but. something which the law for equitable purpose construes to be a trust.</p> <p>One who is not actually a trustee, but upon whom that character is forced by a court of equity, may avail himself of the statute of limitation.</p>

On exceptions from superior court. Assumpsit on the promissory note of the defendants for one hundred and twenty-five dollars, dated November 26, 1876, payable in six months. The note was given for a horse which the defendant took of the plaintiff on the day of the date of the note. It was admitted, that November 26, 1876, was Sunday, and the defendant, Edwin E. Clary, testified that the note was written, signed and delivered: on the day of its date.

On report. Indictment charging that the defendant did feloniously, willfully and maliciously set fire to and burn a dwelling house and Tbarn. By consent of the parties the case was reported to the law •court. If the nol pros, (sufficiently stated in the opinion) was properly allowed and the indictment was sufficient, then it was 4o stand for trial, otherwise it was to be quashed. cited: Maine Civil Officer, 460 ; 71 Maine, 354 ; 67 Maine, 328 ; Gom. v. Tuck, 20 Pick. 356.

On exceptions. The opinion states the case and material facts. contended that the defendant’s offer to prove what he, himself, said in reply to his father, is wholly inadmissible. (1.) It is the declaration of the prisoner offered in his own behalf. (2.) It does not appear to have been, in any view, material.

<p> Pleading. </p> <p>Where an action for a statute penalty is founded on two separate statutes, the declaration will not be adjudged bad, because of the allegations “by force of the statutes,” and “contrary to the form of the statutes,” — using the , plural form of the word “statute.”</p>

Bill in equity. Heard on bill, answer and proof. The case has been once before at the law court and is reported 76 Maine, 482. The plaintiffs claim title to the real estate of which James McDermott died seized, as his heirs; the defendant claims title to the same under a mortgage from Catherine McDermott, and John Mehan devisees by the will of the said James McDermott. The following are the essential provisions of the will: Article 1.

On report of facts agreed. The first case is by the surviving partner of the firm of D. N. Bird & Co., against the administratrix of the estate of Hanson G. Bird, deceased partner of that firm, in assumpsit to recover four thousand five hundred and two dollars and two cents, being the balance and interest shown by the firm books to be due from the deceased to the firm. The second suit was in equity by the same plaintiff against the same defendant and Caleb Gr.

On report. Assumpsit for pauper supplies to the amount of twenty-seven dollars furnished Sybil Byan whose settlement was alleged to be in the defendant town.

<p>On report.</p> <p>The case, pleadings and material facts, are stated in the opinion.</p> <p>The following is the paper referred to in the opinion as called a lease:</p> <p>"This indenture made this 20th day of December, A. D. 1852, between the inhabitants of School District No. one, (1,) in Dover, in the county of Piscataquis, by James S. Wiley of said Dover, agent of said district, especially authorized for the purpose by a vote of the said inhabitants, at a meeting of said district, held at their school-house, on the 14th day of February, 1852, on the one part, and Thomas S. Pullen, Samuel Palmer and Abijah B. Chase, all of said Dover, on the other part, witnesseth, that whereas the inhabitants of said district No. 1, did, on the 16th day of February, A. D. 1852, by and through their building committee, by them appointed and authorized for the purpose, contract with and engage, by agreement in writing of that date, Judah M. Hackett of said-Dover, joiner, to build a school-house for said district, according to a certain plan and specifications referred to in said agreement, and whereas the said Pullen, Palmer and Chase, did, on the said 16th day of February, 1852, agree with the said Hackett that he should erect and build for them, said Pullen, Palmer and Chase, a second story over and above the said school-house, to be erected as aforesaid, according to a plan and specifications agreed upon between the parties, the said inhabitants, in a meeting of said district, held on the 24th day of January, 1852, having permitted and licensed the said Pullen, Palmer and Chase so to do, with their associates and assigns, said upper story to be used and occupied by them exclusively and apart from said school-room as and for a public hall, and whereas the said school-house, together with said second story and the hall therein, having been built and finished according to said agreements. Now, in consideration of the agreements and conditions hereinafter named to be performed by the said Pullen, Palmer and Chase, their associates, executors, administrators or assigns, the said inhabitants by their agent aforesaid, do hereby demise, lease and let unto the said Pullen, Palmer and Chase, their associates, executors, administrators and assigns, the said upper story of said school-house, now finished into a hall, and ante-room, to be used and occupied as a public hall, together with such privileges and appurtenances as may be necessary and proper for the convenient occupation of said upper story for the purposes aforesaid, with the perfect right and privilege at all times of ingress, egress and regress to and from said hall, by and through the northerly door in said building, leading to said school-room, through the northly entry, over the flight of stairs to said upper story or hall. To hold to them, the said Pullen, Palmer and Chase, their associates, executors, administrators or assigns, for the term of so many years as said building shall stand, or until the parties shall mutually agree to devote the same to some other purpose. And in consideration of the conditions and agreements to be performed by said inhabitants, the said Pullen, Palmer and Chase, their associates, executors, administrators or assigns, agree to contribute to the repair of said building as follows, to wit: To paint the said upper story or so much thereof as pertains to said hall and ante-rooms, so often as shall be necessary for the good repair of the same and to repair their own windows and stairs leading to said hall. The roof of said building and the gable ends and all other parts of the building to be kept in repair at the expense of said district, said hall not to be occupied for any kind of stores, warehouses, workshops, nor for any purposes except as and for a public hall, for religious, scientific and literary lectures and addresses, and for any purposes for which such halls are usually and generally occupied. And it is further agreed that in case the parties should conclude to break up and take down said building, each is to share in proportion to the value of the parts of the same respectively owned and occupied by each party in the proceeds of the same, unless the parties can agree upon some other mode of distribution. And should any disagreement arise between the parties as to the necessity of any repairs, after notice thereof from the one to the other, the question shall be referred to the selectmen of Dover for the time being, whose decision as to the necessity of such repairs is to be binding upon the parties and final. It is also agreed that neither part of said building is to be occupied for any other purposes than those for which the}" are devoted, without the consent of the party adversely interested, in writing first had and obtained. ”</p> <p>Duly executed, acknowledged and recorded.</p> <p>In 1852, the district voted in substance that Mr. Wiley be an agent to execute a good and sufficient lease to Pullen and others to add a second story to the school-house about to be erected and hold the same, and whether the second story was lawfully built or not, it was built and it then became real estate, nothing else, and was the property of the owner of the soil, the school district. 4 Mass. 576 ; 2 N. H. 12 ; 8 Mass. 417. It is entirely different from what it would have been if the builders had, by consent of the district, erected an entire building on the face of the earth on land of the district.</p> <p>The district recognized tbe rights of Pullen and others under the lease. This plaintiff recognized the lease. The paper itself, after reciting the doings up to that time, says the district " doth demise, lease and let” the second story. " Demise ” and " lease” mean "the letting of lands, rents, common or any hereditament, unto another, for a lesser time than he that doth let it hath in it. ” Shepherd’s Touchstone, c. 7, Lib. 1, notes; Taylor’s Landlord and Tenant, § 14, n. 2. The words "demise, lease and let, ” are apt and appropriate to convey a fee, if the words "to hold to his heirs,” &c., had been in the habendum. ■Jamaica Pond A. Co. v. Chandler, 9 Allen, 159. In this lease what estate was conveyed? There is nothing which indicates any number of years, or any event by which time may be reckoned, or which must happen in tbe life of either of tbe lessees. Therefore it is not a lease for years. Shep. Touch. 267, 272; 1 Cooley’s Blackstone, book 2, 139, 142. The interest of a lessee at his death goes to his executor or administrator. Hollenbeck v. McDonald, 112 Mass. 247 ; 5 Mass. 419.</p> <p>Not being a lease for years, what is it? A. lease for so many years as J. S. shall live is void. The word "heirs” not being in the lease, and the time being uncertain and undefined, it operates as a life-estate. Hurd v. Cushing, 7 Pick. 174; Sedgwick v. Laflin, 10 Allen, 430; Buffum v. Hutchinson, 1 Allen, 60; Gould v. Lamb, 11 Met. 84; Farrar v. Cooper, 34 Maine, 394.</p> <p>The vote of the district to sell the house and lot under Odd Fellows’ hall, was not restrictive as to the property to be sold. The words used were simply descriptive. And the vote meant to sell all the property the district had in the land and building. At all events, the defendants can not complain. They are trespasser’s, whether the district or Peaks is the owner* of the property. Goodenow v. Kilby, 24 Maine, 425; Glark v. Pratt, 47 Maine, 55; Brown v. Pinkham, 18 Pick. 174; Williston v. Morse, 10 Met. 24; Morse v. Sleeper, 58 Maine, 329. As the estate granted by this lease expired upon the death of Pullen, who was the last of the three lessees to die.</p> <p>cited: School List, in Dresden v. AEtna Ins. Go. 54 Maine, 509; Abbott v. Abbott, 51 Maine, 584; Ricker v. Hibbard, 73 Maine, 107 ; Barker v. Salmon, 2 Met. 32; Brown v. King, 5 Met. 173 ; Ashley v. Ashley, 4 Gray, 197 ; Bolivar M’f’g Go. v. Neponsit M’fg Go. 16 Pick. 241; 3 Wash. E. P. 120; Tallman v. Snow, 35 Maine, 342; Jenks v. Walton, 64 Maine, 97; Hooper v. Gummings, 45 Maine, 359; 104 Mass. 7 ; Trask v. Wheeler, 7 Allen, 109; Nash v. Bean, 74 Maine, 340; Adams v. Quddy, 13 Pick. 460; Goe v. Persons Unknown, 43 Maine, 432; Walker v. Lincoln, 45 Maine, 67; Putnam Free School v. Fisher, 38 Maine, 326 ; Peters v. Foss, 5 Maine, 184; Savage v. Holyoke, 59 Maine, 345 ; Estes v. Gook, 22 Pickering, 296; Gibson v. Savings Bank, 69 Maine, 579 ; Ghaplin v. Barker, 53 Maine, 275; Jewett v. Hussey, 70 Maine, 433; Sumner v. Stevens, 6 Metcalf, 337; Glapp v. Bromagham, 9 Cowan, 530 ; Webster v. Holland, 58 Maine, 168 ; Pejepscot Proprietors v. Nichols, 10 Maine, 261; Moore v. Knowles, 65 Maine, 493; Granite State Bank v. Otis, 53 Maine, 133 ; Glark v. Foxcroft, 6 Maine, 296 ; Osgood v. Howard, 6 Maine, 452; Aldrich v. Parsons, 6 New Hampshire, 555; Doty v. Gorham, 5 Pick. 487 ; Ashmun v. Williams, 8 Pick. 402; Tobey v. Webster, 3 Johns. 461; Fuller v. Tabor, 39 Maine, 519; 1 Wash. E. P. 2, 9, 399, 403 ; H. & E. Iron Go. v. Black, 70 Maine, 479; Lapham v. Norton, 71 Maine, 83 ; Sanborn v. Hoyt, 24 Maine, 118 ; Morse v. Oopeland, 2 Gray, 305; Howard v. Wadsworth, 3 Maine, 471; Boston Water P. Go. v. B. & W. Railroad, 16 Pick. 512; Harback v. Boston, 10 Cush. 297 ; Morgan v. Moore, 3 Gray, 322 Hancock v. Wentworth, 5 Met. 446; Wash. Easements, 8 Kingman v. Kingman, 121 Mass. 251; Bore v. Wood, 2 B. & A. 724; Jameson v. Milleman, 3 Duer, 355; Barnes v.. Barnes, 6 Vt. 388 ; Proprietors Locks & Canals v. If. $ L.. Railroad Company, 104 Massachusetts, 9; Ayer v. Phillips,, 69 Maine, 52; Richardson v. Wheatland, 7 Metcalf, 169;; Baggett v. Slack, 8 Met. 450; Mace v. Cushman, 45 Maine. 260; Morton v. Barrett, 22 Maine, 257; Sweet v. Button, 109’ Mass. 592; Tillinghast v. (7oo&, 9 Mot. 143; Ilov.ghUm v. Kendall, 7 Allen, 75 ; Haley v. Boston, 108 Mass. 57(5; Childs v. Russell, 11 Met. 16.</p>

On exceptions. Writ of entry to recover possession of certain parcels of land in Damariscotta levied upon by the plaintiff as the property of the defendant. At the trial the defendant’s counsel asked that the following instructions be given to the jury: 1. That the levy is informal and void. 2.

On motion to set aside the verdict. Assumpsit on account annexed for sixty-five dollars and fifty cents.

<p>On report upon agreed statement of facts.</p> <p>The opinion states the case and material facts.</p> <p>Revised Statutes, c. 6, § 2, expressly declares that "all real: property within the state is subject to taxation, as hereinafter-provided.” Section 6, declares what the exceptions shall he, specifically naming them. The real estate of subordinate municipal corporations is not excepted. In this case the rule, expressiounius exelusio alterius, applies. Nothing is left to construction. The legislature has declared what exceptions shall be made by the assessors; and they cannot be enlarged.</p> <p>Counsel contended that the building and lot of the defendant, corporation, upon which the tax was assessed, could be levied upon to satisfy a judgment in favor of a creditor of the corporation, and cited: Dillon Mun. Oorp. § 446; Meriwether v.. Garrett, 102 U. S. 472.</p> <p>Numerous authorities sustain the position that property held by municipal corporations, which is used for profit, and which was-not wholly constructed for municipal purposes, is taxable. If part of a building is constructed and used for municipal purposes,, and another part is constructed with special reference to other-uses, and is let for profit, such other part is taxable. And the-land on which the building stands is taxable.</p> <p>In Young Men’s Christian Asso’n v. Donohugh, .13 Phila.. 12, it was held, "that the part of a building belonging toa public charitable association, which is used for the association, is-exempt from taxation ; otherwise as to that part leased to others, though the rent is applied in charity.” In State v. Assessors, 34 La. Ann. 574, it was held, that property belonging to charitable institutions which was leased or used for income, was not exempt from taxation. Under N. Y. Laws of 1846, c. 330, exempting from taxation the real and personal estate of the Brooklyn Benevolent Society, it was held " that lots of its land leased to parties who were to erect buildings thereon, with privilege of perpetual renewal, were not exempt.” People v. Brooklyn Assessors, 27 Hun. (N. Y.) 559.</p> <p>Under Iowa Code, § 797, exempting from taxation the " buildings of literary and religious institutions and societies devoted solely to the appropriate objects of these institutions,” it was held that" a building owned by a benevolent society and leased for pecuniary profit, is taxable.” Fort Des Moines Lodge, V. Polk Go. 56 Iowa, 34. Counsel further cited on this point: Chadwick v. Maginnes, 94 Pa. St. 117 -, Cleveland Library Ass’n v. Pelton, 36 Ohio St. 253.</p> <p>In New Orleans v. Bt. Anna’s Asylum, 31 La. Ann. 292, it was held that " the fact that the rents and revenues of property •owned by a charitable corporation are devoted to the charitable .purposes for which the corporation was organized, will not •exempt such property from taxation. The property is exempt •only when itself actually and directly so used.” Counsel further •cited: Baltimore v. Grand Lodge, 60 Md. 280; Oliver v. Worcester, 102 Mass. 489 ; Bailey v. New York, 3 Hill, 5313 Eastman v. Meredith, 36 N. H. 295.</p> <p>It is nowhere held that one municipality cannot tax the property of another muneipality located within its boundaries and .jurisdiction. No one would doubt the power of a town to tax •the property of another town situated -within its boundaries — • •such as a fanm, store, house of entertainment or amusement — • although the town which owned the property would be compelled to assess its inhabitants to pay the tax. We can see no distinción between the power of a town over property of another municipality which exists outside of its territory, and its power over a municipality existing within it. In each case, the property taxed exists for the benefit of the corporation which owns it, and not for the benefit of the town which taxes it. The only reason given in the reported cases for the non-taxability, by a municipal corporation, of its own property, is, that it would be obliged to assess a tax upon its inhabitants to pay the tax upon its property ; so that taxation would be useless.</p> <p>cited : 2 Kent Com. (6th ed.) 275; 2 Dillon, Mun. Corp. 615, 715, 717 ; Burrows, Taxation, 505 ; Osborne v. Bank of U. 8. 9 Wheaton, 738 ; 1 Kent Com. 426, 427, 428; JMJeriwether v. Garrett, 102 U. S. 511.</p>

<p> Railroads. Grossing. Negligence. </p> <p>In order to entitle a recovery against a railroad corporation on account of an injury, or death, caused by a collision with its train at a crossing, whether the action be in form civil or criminal, it must affirmatively appear:</p> <p>1. That the defendant corporation was guilty of negligence.</p> <p>2. That its negligence was the cause of the accident.</p> <p>3. That the injured party was in the exercise of due care and diligence at the time of the Injury, or, at least, that the want of such care on his part in no way contributed to produce it.</p> <p>It is not enough to show that the defendant was negligent.</p> <p>It is incumbent on the prosecuting party to go further and, directly or indirectly, by affirmative proof satisfy the jury that no want of due care on the part of the injured party, helped to produce the accident.</p> <p>It is negligence to attempt to cross tlie track of a railroad without looking and listening to ascertain if a train is approaching: and ordinary sense, prudence and discretion require this of a traveller so far as he has an opportunity so to do.</p> <p>It is .still greater negligence for one seeing and hearing a train approaching at ordinary speed to attempt to cross directly in front of it.</p>

On report on agreed statement of facts. Debt on bond of five hundred^dollars. The condition of the bond was in the following words ; Whereas, the above bounden W. T. Daggett, has this day sold to the said Burrill his furniture, fixtures, tools of trade, etc., now in the room formerly occupied by said Daggett as a barbershop, and has agreed and does hereby agree never at any time after this date to open and run a barber-shop in said Fairfield.

<p> Bond. Mortgage. Foreclosure. JR. 8., c. 90, §§ 1, 5. Promissory notes. ■ Notice. Dower. </p> <p>A bond from the grantee to the grantor, executed three years after the delivery of the absolute deed, conditioned to convey to the grantor the same land, does not constitute an instrument of defeasance within the provisions of R. S., c. 90, § 1.</p> <p>A note payable “ in one-after date ” may be identified as one payable in one “year” after date to correspond with the one described in the mortgage given to secure it.</p> <p>An agreement limiting the time of redeeming a mortgage on real estate to one year and inserted in the mortgage will bind the mortgagee without his signature to the mortgage.</p> <p>An agreement limiting the time of redeeming a mortgage on real estate need .not be inserted in the notice of foreclosure.</p> <p>A notice of foreclosure published in three consecutive weekly issues of the . newspaper and recorded the n.ext day after the last publication is a compliance with the provisions of R. S., c. 90, § 5.</p> <p>A judgment for dower is uot binding on one who was not a party or privy.</p>

On report. The same question is presented in each case, and is fully stated in the opinion. in the first action. in the second action. The counsel for plaintiffs cited : Reed v. Reed, 9 Mass. 372 ; Andrews v. Boyd, 5 Maine, 199; Butterfield v. Haslcins, 33 Maine, 395; Gleason v. Fayerweather, 4 Gray, 348 ; Reed v. Proprietors, 8 How.

<p>On exceptions.</p> <p>Indictment for keeping a liquor nuisance.</p> <p>At the trial, George S. Winn, a clerk in the office of the collector of internal revenue, testified that he had the custody of the records and had made a true copy therefrom of certain names. This copy was admitted to show that the defendant had procured a license as retail liquor dealer, and the defendant alleged exceptions.</p> <p>cited: State v. Gorham, 65 Maine, 270.</p> <p>We think it is a well settled rule that the record itself or a copy attested by the proper officer is the only evidence admissible of .such a record. 1 Greenl. Ev. 483, 484; Hammatt v. Emerson, 27 Maine, 308 ; State v. Gray, 39 Maine, 353.</p> <p>The fact that the clerk testified that the paper was a true copy of the record did not make the paper admissible; neither was it competent for the clerk to testify, it was nothing more nor less than allowing a person to testify what the record was without producing it. The production, of a paper made by himself and which he certified to be a true copy was simply allowing him to testify from a memorandum what the record contained. The collector, himself, could not be permitted to give such testimony while an authentic copy made by him might be evidence. McGuire v. Say ward, 22 Maine, 230; Owen v. Boyle, 15 Maine, 147; Atxoood v. Wintex'porl, 60 Maine, 250.</p>

On report. Assumpsit on an account annexed for sixteen sacks of wool —■ ■two thousand two hundred sixty eight and one-half pounds at twenty seven cents a pound — six hundred twelve dollars and •fifty cents ; ■ also for money had and received. The wool was sold by the defendant in his own name with ■other wool belonging to him to the Sebee Woolen Company on ■sixty days’ time and the purchaser failed before the payment was ■due and paid twenty-five cents on a dollar.

On exceptions. Bill in equity' inserted in a writ. The defendant made a motion in writing that Nathaniel Dustin, assignee of Robert W. Gilmore, one of the plaintiffs, have his name and place of residence indorsed on the writ in this action.

On exceptions to the ruling of the court in overruling the defendants’ demurrer to the bill. The opinion states the material facts. cited: E. S., c. 77, § 13; 1 Pom. Eq. Jur. § § 82, 83, 191, 176, 112, 114, 115, 201, 159, 157, 155, 130; Rathbone v. Warren, 10 Johns. 587; King v. Baldwin, 17 Johns. 384; Bromley v. Holland, 7 Yes. 19; Bast India Go. v. Boddam, 9 Yes. 464; 1 Perry, Trusts, § 166 ; Ryan v. Box, 34 N. Y. 307; 2 Pom. Eq.

On report. An action on an officer’s receipt. The material facts are stated in the opinion. cited: Hunter v. JPeales, 74 Maine, 367; Moulton v. Ghapin, 28 Maine, 505. cited: R. S., c. 81, § 67 : Humphrey v. Gobb, 22 Maine, 380; Norris v. Bridgham, 14 Maine, 429 ; Sawyer v. Mason, 19 Maine, 49 ; Bradbury v. Taylor, 8 Maine, 130.

On exceptions. Assumpsit on an account annexed; Joseph T. Flanders was summoned as trustee. The trustee disclosed an assignment of the funds in his hands to Hussey and Conant, who appeared and claimed the funds. The exceptions were to the ruling of the court in favor of the claimants for the full amount in the hands of the trustee.

On REPORT. Assumpsit on account annexed for use of one-half schooner, Robert Ripley, her tackle and furniture, from January 1, 1878, to May, 1878, $200. The opinion states the material facts. cited: Smith v. Marsh, 2 Dane’s Abr. 228, 449 ; Kimball v. Sumner, 62 Maine, 310; Stanley r. Ayers, 3 Yes. 444; 1 Parson’s Sh. & Adm. 117 ; Hopkins v. Forsyth, 14 Pa. 34; Lyman v. Boston & Maine 12. 12.

On exceptions and motion to set aside the verdict, from the superior court. Assumpsit for the recovery of the price of five shares of stock of the Arnoux Electric Light and Power Company of Maine.

<p>On exceptions.</p> <p>This was a real action. The material facts upon the question ¡presented by the exceptions are sufficiently stated in the •opinion.</p> <p>upon the validity of the levy, ■cited: R. S., 1871, c.' 76, § 4; Pride v. Lunt, 19 Maine, 115; Morton v. Ohandler, 6 Maine, 148 ; Pierce v. Strickland, 26 Maine, 278 ; Foss v. Stickney, 5 Maine, 390; Bond v. Bond, :2 Pick. 385 ; Peabody v. Minot, 24 Pick. 334.</p> <p>Upon the question of pleadings, counsel cited : R. S., 1871, c. 104, § 6 ; Wyman v. Brown, 50 Maine, 139; Colburn v. Grover, •44 Maine, 47; Otis v. Warren, 14 Mass. 239; Jackson, Real Actions, 91, 92, 93; Putnam Free School v. Fisher, 38 Maine, •327; Fogg v. Fogg, 31 Maine, 302; Stephen’s PI. 405, 406, ¿94, 395; Gould’s PL 270-275; 1 Chitty Pl. 460; JSTowlan v. 'Geddes, 1 East, 635 ; Schoonmaker v. Flmendorf, 10 Johns. 49.</p> <p>In this case, Greenlief Corson, by his counsel, Mr. Willard, (filed his disclaimer in which he, on the second day of the first term, informed the plaintiff that he made no claim to the land, and that so far as he was concerned, the plaintiff might have it. We contend that this was all that the demandant was entitled to. But the counsel insisted that the answer filed by Greenlief Corson was a plea in bar. It may be in form a good plea in bar, but it was intended as a disclaimer. After the court ruled that this was no answer, the defendant offered to file the general issue, and this we contend he should have-been allowed to do, but the court refused to allow him to do so. If it be claimed that the allowance of the privilege rested in' the discretion of the presiding judge, wo say such discretion must be reasonably exercised, otherwise it is open to exceptions The right to plead anew, for which defendant contended, seems to be recognized in State v. Inness, 53 Maine, 541; Furbish v. Robertson, 67 Maine, 38.</p> <p>The levy upon which demandant’s title rests- is not good. Separate appraisals of two parcels of land, lying side by side, and taken by the same levy, can not be upheld. Great injustice could thus be done. Each separate parcel appraised by itself, might be of little value, while it would be of great value when joined Avith the other. One is a mere brook Avi'th no land of any amount connected with it; it is, therefore-, almost Avorthless. The other is a dry pasture Avith no water in it, and, for that reason, of small value. But when united' by the completion of the levy, the creditor has a nice pasture with a running brook through it.</p>

On exceptions to the decree of the court upon the following-petition, requiring- that the defendant bring and prosecute his action respecting the title to the real estate claimed by him. [Petition.] To the honorable justices of our Supreme Judicial Court, next to be holden at Farmington within and for the county of Franklin, on the first Tuesday of March, A. D., 1884.

On exceptions from the superior court. An action on a poor debtor’s bond.

On exceptions from the superior court. r x Assumpsit on an account annexed for forty-eight dollars and forty-five cents due for boards, planks, timber and shingles, sold and delivered, the quantity and price per thousand of each variety being given.

<p>On report of facts agreed.</p> <p>The opinion states the cases and the material facts.</p> <p>Many interests are concerned in the construction which shall be placed upon the law of 1883, which is invoked as a defence to these actions. I submit that a construction which shall make it applicable only to residences in unincorporated places subsequent to the passage of the act would be more in harmony with the constitution of the state, Art. 1, § 11.</p> <p>The law should not be construed as having a retroactive or retrospective effect, as such a construction would directly tend to impair the obligation of contracts, as the action for recovery of pauper supplies is founded upon the implied promise of the defendants to pay for the necessary expenditures of the plaintiffs in support of their dependents.</p> <p>cited: R. S., c. 24, § 3, Bridgewater v. Plymouth, 97 Mass. 390; Goshen v. Pdehmond, 4 Allen, 460; Monson v. Palmer, 8 Allen, 556 ; Lewiston v. FT. Yarmouth, 5 Maine, 66 ; Appleton v. Belfast, 67 Maine, 580.</p>

On appeal. Bill in equity containing the following allegations : 1st. That said company was duly organized on the eighth day of April, A. D. 1879, for the purpose 'of building and operating a railroad from Farmington to Phillips. 2d. That Abner Toothaker, Nathaniel B. Beal, William F. Fuller, Philip H. Stubbs, and Stephen Morrell were duly elected directors of said company at a legal meeting of the stockholders-of said company, holden at Strong, on the eighth day of April,,,…