Volume 78 — Maine Reports

ON REPORT. Forcible entry and detainer originally brought in the municipal court of Farmington. The facts are stated in the opinion. If the defendant’s wife could have leased the premises for two years she could for ninety-nine years. The lease was a conveyance — a deed. I rely upon the case of Oall v. Perhins, 65 Maine, 439 ; Heed v. Peed, 71 Maine, 156 ; R. S., c. 61, §1.

ON EXCEPTIONS. After verdict the defendant moved in arrest of judgment. The only question discussed in the opinion relates to the exceptions to the ruling of the court in overruling the motion in arrest of judgment, which was as follows; And now after verdict and before judgment in the above entitled cause, the defendant comes and moves that judgment in said cause be arrested and that he be discharged aud allowed to go without day, for the following reasons, because: 1.

<p>Pleadinys. Declaration. Amendment, ffuardian’s bond. S. 8., c. 72, § 10.</p> <p>A declaration on a guardian’s bond, which omits the averment, that the interest of the persons siting had been specifically ascertained by probate decree, may be amended by adding the omitted words.</p> <p>The declaration is not faulty for alleging that the action had been authorized by the judge of probate, when it is immaterial whether he assented to the action or not; the over-averment may be disregarded or stricken out.</p> <p>A guardian’s bond is not converted from a statutory to a common law bond merely because it contains provisions not required in the statutory form, which are in accordance with law.</p>

<p> Deeds. Highway surveyors. Shade trees. Trespass. Damages. </p> <p>A deed containing tlie words “ Excepting tlie roads laid out oyer said land,” conveys the fee within the limits of the road, subject to the easement of tlie public incident to the uses of the way.</p> <p>Highway surveyors may lawfully dig' outside the limits of the road for materials suited for the making or repair of ways, only upon land that is unenclosed and uncultivated.</p> <p>The owner of land upon a public way may lawfully plant ornamental or shade trees within the limits of the way, if the public use is not thereby obstructed or endangered.</p> <p>Trees so planted are a public benefit, and can not be destroyed without the call of public necessity.</p> <p>Highway surveyors, who destroy such trees without reason or necessity, are trespassers, and if the act is wanton, they are liable for exemplary damages.</p>

On report of facts agreed. Assumpsit for five hundred dollars and interest. The material facts are stated in the opinion. cited: Williams v. Vance, 80 Am. Rep. 28, note; 2 Sedw. Dam. (7th ed.) 244, note, 246, note; Dwinel v. Brown, 54 Maine, 470; Lynde v. Thompson, 2 Allen, 456; Hall v. Crowley, 5 Allen, 304; Streeper v. Williams, 48 Penn. St. 450; Bagley v. Peddie, 16 N. Y. 471; Leary v. Laflin, 101 Mass. 334; Chase v. Allen, 13 Gray, 42; Gobble v. Linder, 76 Ill. 157.

Report of facts agreed. Appeal from decree of the judge of the court of insolvency in [granting a discharge to the insolvent and in refusing to allow an examination of the insolvent on the motion in writing of the appellants.

<p> Intoxicating liquors. Amendment. </p> <p>A warrant for search and seizure under § 40, c. 27, R. S., relating to intoxicating liquors, served by a constable of the county legally authorized to serve such process, but to whom no direction has been given in the warrant, is legally amendable at any time before final judgment, under § 57 of said chapter, the omission of such direction being only matter of form.</p> <p>An amendment inserting such direction being but matter of form, is within the power, as well as the discretion, of the court until final judgment.</p>

Ok EXCEPTIONS from superior court. Action of slander. On the third day of the return term the defendant filed a demurrer to the plaintiff’s declaration. The court overruled the demurrer pro forma and to this ruling the defendant alleged exceptions. The opinion states the material facts.

On report .on the writ and record. Writ of error which contained the following assignment of errors. '■'And now, on the fifth day of June, in the year of our Lord one thousand eight hundred and eighty-four, comes Samuel Rounds, Who is now held on a judgment, warrant and process of the superior court within and for the county of Cumberland -and State of Maine, on an indictment wherein the said State of Maine proceeded against him, the said Samuel -Rounds, and on said judgment…

<p>ON EXCEPTIONS.</p>

<p>ON exceptions and motion to set aside the verdict.</p> <p>Action to recover for personal injuries received in alighting from a moving train at the Columbus Avenue Station in Boston, July 14, 1882.</p> <p>The verdict was for the plaintiff in the sum of three thousand ninety-one dollars and sixty-six cents.</p> <p>The opinion states the material facts.</p> <p>Mrs. Shannon was a passenger. Warren v. Fitch. 11. 11. Go. 8 Allen, 232 : Snow v. Same, 136 Mass. 552 ; Gordons. Railroad, 40 Barb. 546 ; Gent. Railroad v. Ferry, 58 Ga. 467, § 2 ; Allender-v. Railroad, 37 Iowa, 264; S. C. 43 Iowa, 277 ; B. & O. v. Mahone, 19 Reporter, 757 ; Cleveland v. N. J. Stm. 68 N. Y. 306; Klein, v. Jewett, 26 N. J. Eq. 474; Pineo v. N. IT Cent. 34 Hun. 80; Bridges v. Ho. Bond. R’y, 7 Eng. & Ir. App. 213; Armstrong v. JSr. Y. Gent. 66 Barb. 437; Van-. Ostrand v. same, 42 Him. 592; Watkins v. Railroad, 37 L. ■J. (N. S.) 195; Doss v. Railroad, 59 Mo. 27; Barrett v. Black, 56 Maine, 505 ; Garitón v. Fran. I. Go. 99 Mass. 216 ; Hoffman v. N. Y. Gent. 13 Hun. 589 ; Boucher v. N. Y. Gent. 49 N. Y. 263 ; Railway v. Slattery, 3 Ap. Cas. 1155 (24 Moak Eng. R. 713) ; Tobin v. P. S. & P. 59 Maine, 183 ; Oampbell v. Portland Sug. Company 62 Maine, 562 ; Wilton v. Railroad, 107 Mass. 108; Day v. Brooklyn Railroad, 12 Hun. 439 ; Brown v. Minn. & St. L. 31 Minn. 554; P. & R. Railroad v. Derby, 14 How. 485 ; Bennett v. Railroad, 102 U. S. 580 ; Carpenter v. B. & A. 97 N. Y. 498 ; Mulhado v. Brooklyn, R. R. 30 N. Y. 370; Newson v. New York Cent. 29 N. Y. 389 ; Pool v. G. M. & St. P. 56 Wis. 232; Whart. Neg. § § 375, 377, 378, 380, 381, and cases cited.</p> <p>The plaintiff was not chargeable with contributory negligence. Shrewsbxiry v. Smith, 12 Cush. 177 ; Shaw v. B. & W. 8 Gray, 79 ; Holly v. Gas Go. 8 Gray, 13 L; O'Brien v. McGlin-chy, 68 Maine, 558 ; McIntyre v. N. Y. Gent. 37 N. Y. 293; Snow v. Houst. Railroad, 8 Allen, 449 ; Frnst v. II. Riv. Railroad, 32 How. Pr. 78; Harris v. Un. Pac. 13 Fed. Rep. 5'92 ; Patrick v. Pote, 117 Mass- 301; Larrabee v. Sewall, 66 Maine, 380; Hobbs v. E. R. R. 66 Maine, 575 ; Gaynor y. Old Gol. 100 Mass. 212 ; Whitney v. Oumb. 64 Maine, 541; .Ross v. B. <& W. 6 Allen, 92; Lawless v. Gt. Railroad, 136 'Mass. 5; Barton v. Springfield, 110 Mass. 132; Qlayards v. Dethick, 12 Q. B. (Ad. & El. N. S.) *439; Plummer v. .Railroad, 73 Maine, 593 ; Filer v. N. Y. Gent. 49 N. Y. 47 ; ;Sh. & Red. Neg. § 31, 282; Thomas v. West Un. 100 Mass. 156 ; Ghaffee v. B. &L. Railroad, 104 Mass. 108 ; Hutchinson ‘Carriers, § § 641-644; Johnson v. Railroad, 70 Pa. St. 357; Delamatyr v. Milw. Railroad, 24 Wis. 586; Railroad v. .Stout. 17 Wall. 663 ; Penn. Railroad v. Kilgore, 32 Pa. St. 292; Nichols v. R’y Go. 38 N. Y. 131 ; Curtis v. Detroit ■ <& M. R. R. 27 Wis. 158; Railroad v. Baddely, 54 Ill. :20; Jeff. Railroad v. Hendricks, 41 Ind. 65 ; Taber v. Del. Lac. 71 N. Y. 489 ; Brooks v. B. & M. Railroad, 135 .Mass. 21; O'Oonner v. B. & L. R. R. 135 Mass. 353 ; Gain. Railroad v. Smith, 59 Texas, 285 ; Tex. Pac. v. Garcia, 62 Texas, 285 ; McDonough v. Metrop. 137 Mass. 212; dumb. Val. v. Maugans, 61 Md. 61; Abbey v. JST. V. Gent. 20 Week. Dig. 37; Loyd v. Railroad, .53 Mo. 509; Kellogg v. Curtis, 65 Maine, 59 ; Beers v. Railroad, 19 Conn. 566 ; Stevenson v. 0%. (b Mii. 18 Fed. E. 634; CoUins v. Davidson, 19 Fed. E. 86 ; Walter v. C. D. S M. 39 Iowa, 33 ; Wilkinson v. Drew, 75 Maine, 362 ; Lindsay v. CM. Railroad, 31 Alb. L. J. 18; Swigert v. H. S St. J. 75 Mo. 475 (9 Am. & Eng. K. E. Cits. 322) ; Flint, &c. Railroad v. Stark, 38 Mich. 714; Price v. St. Louis, 72 Mo. 414; Straus v. Railroad, 75 Mo. 185 ; Clotworthy v. 2?. R. 80 Mo. 223 ; Harvey v. Eastern, 116 Mass. 270; Hickey v. B. S L. R. R. 14 Allen, 433; Caswell v. B. & W. 98 Mass. 204; Worthen v. G. T. R’y, 125 Mass. 99 ; Roll v. Ho. Cent. 15 Hun. 502; Stokes v. Saltonstall, 13 Pet. 181; Adams v. L. & Y. R’y Co. L. E. 4 C. P. 744; Gee v. Met. Ply Co. L. E. 8 Q. B. 173 ; Robson v. H. E. R’y Co. L. E. 10 Q. B. 271; Backus v. Start, 13 Fed. Eep. 71; Mackay v. H. Y. Cent. 35 N. Y. 80; Johnson v. Railroad, 70 Pa. St. 365.</p> <p>" The company have no control over a passenger’s movements, and the passenger does not, by the purchase of a ticket put himself under their charge.”</p> <p>In entering the car, from which she afterwards jumped, the plaintiff voluntarily took a position exposed to just the movement she encountered.</p> <p>In Sweeny v. Old Colony S Newport R. 10 Allen, 368, the court say of passengers :</p> <p>"If they voluntarily take exposed positions, with no occasion therefor, nor inducement thereto, caused by the managers of the road, except a bare license by non-interference, or express permission of the conductor, they take the special risk of that position upon themselves.” See also Hickey v. B. S L. R. 14 Allen, 433 ; Abend v. Terre Haute, Sc. R. Co. 19 Cent. L. J. 350.</p> <p>The judge ought to have instructed the jury as requested, that if the plaintiff would have been safe if she had not jumped from the car, her act of jumping, by which she received injury, is evidence that she acted rashly. Nelson v. North Pac. B. 26 Minn. 78.</p> <p>But even when in peril of injury, a passenger is only justified in jumping, if an ordinarily prudent person would have. Card v. Ellsworth, 65 Maine, 547; G. & Bh. Bailroad v. Fay, 16 Ill. 558; Stolces v. Saltonstall, 13 Peters, (U. S. S. C.) 181; Ingalls v. Bills, 9 Met. 1; 24 Ga. 356; Jones v. Bryce, 1 Stark. 402; 36 Ohio St. 418.</p> <p>Where there is a prospect of collision, a passenger jumping from train may be in the exercise of due care. Buel v. N. Y. Gent. 31 N. Y. 314.</p> <p>The plaintiff was not put to an election in choosing a course to avoid personal hurt. If she had remained quietly in the car she would have received no injury, she was there safe. This fact, is evidence that she acted rashly. Wharton on Neg. sec. 427 and note 1; Brown v. E. & N. A. B. 58 Maine, 384.</p> <p>The ground of the plaintiff’s fear as shown by the evidence, was not based upon any apprehension of personal hurt. In her mind it was simply the anticipation of delay and inconvenience. It may be said that such action on her part was perfectly natural, but the reply is that, there are many things natural for man to do, which he is not authoi’ized or justified by law in doing.</p> <p>" Where a passenger voluntarily leaves a train of cars while in motion, simply to avoid being carried beyond the station where he desires to stop, and in doing so l’eceives an injury, his own negligence is the proximate cause of the injury, and he cannot recover of the company though the conductor was in fault in not stopping the train.” Jeffersonville Bailroad Go. v. Hendriclcs, 26 Ind. 228 ; same v. Swift, ib. 459 ; Evansville & Bailroad Go. v. Duncan, 28 ib. 441; Damont v. N. 0. & G. Go. 9 La. Ann. 441 ; Bailroad Go. v. Aspell, 23 Pa. St. 147; Morrison v. Erie Bailroad Go. 56 N. Y. 302; III. Bailroad Go. v. Slatton, 54 Ill. 139; Gavett v. M. & L. Bailroad Go. 16 Gray, 501; Lucas v. New Bedf. T. B. 6 Gray, 64; see also Burrows v. Erie By. 63 N. Y. 556; 57 Texas, 83; Harvey v. Eastern Bailroad, 116 Mass. 269 ; Brooks v. B. <& M. Railroad, 135 Mass. 21; Commonwealth v. B. & M. Railroad, 129 Mass. 500; Detroit & Milwaukee R y. Co. v. Van Steinburg, 17 Mich. 99, 120; and cases cited.</p> <p>There was in this case, no evidence of such wrong on the part of the defendant as to put the plaintiff in fear of bodily injuiy, and drive her to an election, or choice between perils.</p> <p>Crossing a railroad track without looking and listening for an approaching train is prima fade negligence, so this court recently hold in State v. Me. Cent. Railroad, 76 Maine, 365 ; 114 II. S. 615 ; Wright v. Malden & R. Co. 4 Allen, 289.</p> <p>" Where a person walks upon a railroad track, without precautions against the approach of trains, it is per se negligence.” Herring v. Wilmington R. Co. 10 Ired. L. 402; Ilarty v. Central Railroad Co. 42 N. Y. 468 ; Terre Haute, etc. R. Co. v. Graham, 46 Ind. 239 ; Holmes v. Cent. R. Co. 37 Ga. 593 ; Maher v. Atlantic, etc., R. Co. 14 Mo. 267; Cogswell v. Oregon, efe. R. Co. 6 Or. 417 ; Illinois, etc. R. Co. v. Modglin, 85 Ill. 481, and numerous other cases.</p> <p>So crawling under a car, stopped temporarily upon the track. Ostertag v. Pacific R. Co. 64 Mo. 421; Central, etc. R. Co. v. Dixon, 42 Ga. 327; Chicago R. Co. v. Dewey, 26 Ill. 255; McMahon v. Northern R. Co. 39 Md. 438.</p> <p>Hiding with a portion of the body protruding from the car • windows per se negligence. Todd v. Old Colony R. Co. ib. ; Pittsburg R. Co. v. Andrews, 39 Md. 329 ; Indianapolis R. Co. v. Rutherford, 29 Ind. 82 ; Morel v. Mississippi Ins. Co. 4 Bush. 535 ; Pittsburg Ins. Co. v. McClurg, 56 Pa. St. 294: Louisville R. Co. v. Pickings, 5 Bush, 1; Holbrook v. Utica R. Co. 12 N. Y. 236, enough to justify a non-suit.</p> <p>Courts in other states have held that leaping from a train knowing it to be in motion, is per se negligence. See cases cited.</p> <p>And to go between unshackled cars, where a train is being made up, held negligence per se, 1 Allen, 190.</p> <p>What is the logic, where the sound reason, that authorizes the court 1 o say that crossing a track without looking and listening is negligence, yet will prevent it from saying, that jumping from a quickly moving train is negligence? Common knowledge shows it to be a hazardous act.</p>

This was a petition by the Portland and Rochester Railroad Company for increase of damages on account of certain town ways laid out across its track. The case was heard by a sheriff’s jury presided over by a commissioner appointed by the county commissioners.

ON EXCEPTIONS from the superior court. The exceptions were to the proforma ruling of the court in overruling defendant’s demurrer to the indictment. The facts are sufficiently stated in the opinion. cited: Com. v. Eaton, 15 Pick. 273; Com. v. Harris, 13 Allen, 534; Barnes v. State, 20 Conn. 232; Com. v. Hooper, 5 Pick, 42; Com. v. Dana, 2 Met. 329 ; 64 Maine, 423; Whar. Cr. L. § § 2428 - 2432; 2 Bish. Cr.

On exceptions from superior court. The opinion states the case and material facts. cited: Shaw v. Usher, 41 Maine, 102 ; Fogg v. Fogg, 31 Maine, 302; Snell v. Snell, 40 Maine, 307 ; Shorey v. Hussey, 32 Maine, 579 ; Faitee v. Lowe, 35 Maine, 121. contended that the trial justice before whom the writ was entered had no jurisdiction, and his judgment affirmed in the superior court is null and void.

On report on facts agreed. Assumpsit to recover for labor in blacksmith shop, in a granite quarry, and to enforce a lien claim therefor upon the granite there quarried.

On report on facts agreed. The opinion states the case and material, facts. The real question to be determined in this case is this, was it necessary for the plaintiff in order to maintain this action to have first given the notice provided by R. S., c. 81, § 44? That question can be completely determined by answering another, still more simple. Was J. McKenney properly made the defendant?

ON REPORT. Action of dower by a divorced wife against her former husband. With respect to one of the parcels in which the plaintiff claimed dower the defendant said that he had conveyed his interest in the same to his mother and that the plaintiff had signed the deed, thereby relinquishing her right of dower in it.

The case is stated in the opinion. The report shows that the mortgages referred to in the ■opinion, were given January 23, 1884, and January 24, 1884, that the petition in insolvency was filed May 21, 1884, that .four creditors were allowed by the insolvent court on June 9, T884, on motion, to join in the creditors’ petition, and on June .23, 1884, on motion, four other creditors were allowed to join in that petition.

<p> Writs of error. Record. Practice. </p> <p>Writs of error lie only for the correction of such defects as are apparent from inspection of the record, a transcript of which should he produced at the trial.</p> <p>A party, desiring to reverse a judgment for error, should require the clerk to complete and attest his record, that he may produce a transcript of it at the trial, and until this is done such party is not entitled to relief by writ of error.</p>

On report on facts agreed. Debt to recover the sum of six hundred and fifteen dollars and thirty-six cents, levied in 1881 by the governor and council under the provisions of stat. 1881, c. 91.

On report of facts agreed. The defendant is a toll-bridge corporation, incorporated in this State by act of the legislature, January 23,1821 — if that act constitutes an act of incorporation, as plaintiffs claimed. The defendants claimed it was an act only to empower a New Hampshire corporation to exercise its franchise in Maine. The act was made a part of the case. Also, the acts of the legislatures of New Hampshire and Massachusetts, mentioned in the act of Maine.

ON report of facts agreed. Action on the case for negligence of the defendant company in not delivering a telegraph dispatch to plaintiff, alleging special damage. The writ was dated December 18,1884. The essential facts are stated in the opinion. The plaintiff had entered into a legal contract.

<p>County commissioners of Cumberland, sessions of. B. 8., a. 18, § S, and c. 78, § 6.</p> <p>All reports which the commissioners of Cumberland county are required to make at a ‘ regular session ” must be made at a “ term of record ” holden on the first Tuesday of January or June, and all continuances required by law are to be to the next “ term of record.”</p> <p>The words “regular session” in R. S., c. 78, § 6, are not identical in meaning' with, the same words in R. S., c. 18, § 5.</p>

On EXCEPTIONS. The case and material facts are sufficiently stated in the opinion. The notice, ordered by the court to all persons interested in the estate of the deceased defendant, was served according to the order and proof of service was entered on the docket.

<p>Oily Council of Biddeford. Ways. Appeal. Certiorari. B. 8., o. 18, § 19.</p> <p>No appeal lies to the county commissioners of York comity, from the refusal of the city council of the city of Biddeford to locate and lay out a city street.</p> <p>Whore the city council have exclusive authority under the charter to lay out new streets and ways, the action of such council in refusing to lay out a way can not he reviewed or revised by the county commissioners under the provisions of 11. S., c. 18, § 19.</p>

ON REPORT. Writs of error. These four cases were argued together, the records of the judgments sought to be reversed wore similar, the record in one case being as follows : (Record.) State of Maine, Oxford, ss. — At the Supreme Judicial Court, begun and bolden at Paris, within and for the county of Oxford, on the third Tuesday of September, being the eighteenth day of said month, Anno Domini, 1888. By the Honorable WILLIAM WIRT VIRGIN, Justice. No. 224.

<p> Master and servant. Defective machinery. </p> <p>A master’s liability for an injury to his servant caused by defective machinery, furnished by the former for the latter’s use, 'is not absolute.</p> <p>To render the master liable for an injury to his employee caused by defective machinery furnished by the former for the latter’s use, it must appear that the master knew, or by the exercise of proper diligence ought to have known of its unfitness, and that the servant did not know, or could not reasonably be held to have known of the defect.</p>

On exceptions. The opinion states the case. With grave doubts as to the sufficiency of the count demurred to, I cite, as tending to support the count, Lee v. Sandy Hill, -40 N. Y. 442; Hill v. Boston, 122 Mass. 344; Gordon v. Taunton, 126 Mass. 349 ; Bailey v. Woburn, 126 Mass. 416. cited: Edgerly v. Goncord, 59 N. H. 78 ; Welsh v. Village of Rutland, .56 Yt. 228 ; S. C. 48 Am. Rep. 762 ; Fisher v. Oity of Boston, 104 Mass. 87 ; S. C. 6 Am.

ON REPORT. Bill in equity brought to cancel a certain bond given by the plaintiffs to the defendant, March 5, 1884. The opinion states the essential facts. The action of trespass referred to in the opinion was before the law court and was reported in 75 Maine, 594 (Matthews v. Treat). When the bond was given Treat could not have maintained an action against Abbott for breach of warranty because he had not then been damnified.

ON REPORT. An action of the case for diverting' one-half the water running in Duck brook in Eden from the plaintiffs’ mill situated near the mouth of that brook. At the trial the only question submitted to the jury was the assessment of damages, and they returned a verdict for $347.70. The case was then reported to the law court with so much of the evidence introduced by the defendant as tended to justify the diversion.

<p>On report.</p> <p>An action to recover for money paid for the board and care of Miss Nancy Holmes, from January 1, 1882, to January 1, 1884, one hundred and seventy-six dollars and eight cents, and interest, seven dollars and seventy-eight cents, total one hundred and eighty-three dollars and seventy-eight cents. After the evidence was out the action was withdrawn from the jury and reported to the law court to render such judgment as the law and the evidence required.</p> <p>The opinion states the material facts.</p> <p>contended that the aid furnished by Newburgh was not furnished as pauper supplies, citing Veazie v. Chester, 53 Maine, 29.</p>

ON exceptions to the ruling of the court in overruling defendant’s demurrer to the writ and declaration, which latter was as follows: To answer unto John A. Waterman, of Gorham, in said county, in whose name this suit is prosecuted by Lewis Pierce, administrator de bonis non, with the will annexed, of the estate of James E. Dockray.

<p> Will. Devise. Equity practice.. Partition. Bankruptcy. </p> <p>A testator devised to Ms wife as follows : “All my real estate, together with any and all right, title and interest which I have in and to any and all real estate, or any and all which I may hereafter acquire, to remain hers so long as she shall remain unmarried after my decease. But if she shall marry again, then from that time she shall be entitled to, and receive only one-third part of all that remains. It is my desire and will that said real estate shall remain as it is for twenty years, giving all the income thereof to my said wife, hut authorizing her, in case of necessity, to sell any part thereof for her support and maintenance during her widowhood ” — with no devise over. The widow died without having married again. Held.:</p> <p>1. That the widow, by clear and apt words of the will, took a life-estate only.</p> <p>2. That the contingent authority to sell for her support during widowhood, did not enlarge her estate to a fee, conferring only a power and not property.</p> <p>3. That the expressed desire of the testator that the real estate “ should remain for twenty years, ” etc., could not affect the alienation of the life-estate nor of the undevised reversion.</p> <p>Between tenants in common, partition is in equity a matter of right and not of discretion, whenever either of them will not hold or use the property in common. Courts of equity, concurrently with courts of law, have jurisdiction of partition of land among tenants in common; and equity jurisdiction was expressly conferred by B. S-, (1857) c. 77, §5, cl. 6, which provision has been incorporated in the subsequent revision.</p> <p>To entitle a complainant to a decree for partition, he must show a clear, legal title in himself; and when his title is disputed and not established, the bill may be retained to give him a reasonable opportunity to establish it at law.</p> <p>When the complainant claims title under a will and files his bill under the statute for a construction of the will, and for an accounting and partition, the court, in the absence of any defect in his title, having thus acquired jurisdiction for the purpose of construing the will, has authority to do complete justice between the parties by compelling an account and partition.</p> <p>Circumstances stated in the opinion which will warrant holding the bill to allow the complainant opportunity to establish Ms legal title. The defendant may dispute the complainant’s legal title which the latter has conveyed away, though the former does not claim under it.</p> <p>It seems that the assignee of a bankrupt is not bound to take possession of all property conveyed by the bankrupt in fraud of the bankrupt law.</p> <p>He may elect to take it or not to take it. If he does not elect to take it within a reasonable time, it is deemed an election to reject it.</p>

<p>On report.</p> <p>Petition for the writ of certiorari to quash the proceedings of the county commissioners of Aroostook in laying out a highway upon the following petition :</p> <p>"To the honorable county commissioners in and for the county of Aroostook: We, the undersigned, inhabitants of Aroostook county, represent that the public good requires a county road leading from New Sweden (township 15, range 3) to Fort Kent, by the most direct and feasible route : Commencing in New Sweden, at the terminus of the county road, and running through townships 16 E. 3; 16 E. 4; 17 E. 4; 17 E. 5 ; 17 E. 6; Frenchville and Fort Kent; and passing between Cross lake and Mud lake. And we ask you to view the route, and if found feasible, to lay out said road.</p> <p>Calvin B. Eoberts, and 216 others.</p> <p>Caribou, Mar. 12, 1880.”</p> <p>cited: Oom. v. Sheldon, 3 Mass. 188 ; King v. AroostooJc Oo. 63 Maine, 567 ; Sumner v. Oo. Oom. 37 Maine, 112 ; Howland v. Oo. Oom. 49 Maine, 143 ; Pembroke v. Oo. Oom. 12 Cush. 351; Bangor v. Oo. Oom. 30 Maine, 270; Levant v. Oo. Oom. 67 Maine, 434; Lewiston v. Go. Oom. 30 Maine, 19; P. S. & P. P. M. Oo. v. Oo. Oom. 65 Maine, 292; Rutland v. Oo. Oom. 20 Pick. 71; Monmouth v. Leeds, 76 Maine, 28; Lisbon v. Merrill, 12 Maine, 210.</p> <p>The granting of the writ on petition for certiorari is a matter of discretion with the court, and will not be granted when there is an apparent error unless injustice has been done or will be done by a refusal. Levant v. Oo. Oom. 67 Maine, 429 ; Lapan v. Oo. Oom. 65 Maine, 160; Fairfield v. Oo. Oom. 66 Maine, 385 ; Hopkins v. Fogler, 60 Maine, 266.</p> <p>One reason given for disturbing the proceedings of the commissioners is, " the petition did not sufficiently describe the road prayed for.”</p> <p>The statute provision is that the highway must " lead from town to town,” and the petition must be in writing " describing a way,” and the commissioners may act upon it, conforming substantially to the description. R. S., c. 18, § 1.</p> <p>The object of the way was manifest, and that was to open up a highway connecting the road in Sweden with the town (of course the business part) of Fort Kent. There could be no hesitancy or doubt as to what was meant, and that is all that is wanted. One’s common sense could not fail to teach that. The termini are given and the intermediate territory described. What could be more definite or certain as to the way desired by the petitioners ? The " general course ” is readily settled by fixing the termini. Things are sometimes too plain to admit of argument. Such is the character of the proposition here. The general idea is what is wanted. The starting point and the terminus as a general fact — a road in this case, to accommodate the travel from the south to Fort Kent. The particulars are for the court to settle. There is where the discretion of the court is prayed for.</p>

<p>On exceptions.</p> <p>Assumpsit on a promissory note in which the only question presented related to the charging of the alleged trustee.</p> <p>Upon the facts stated in the opinion the presiding justice discharged the trustee and to this ruling the plaintiff alleged exceptions.</p> <p>The trustee seeks to avoid the plaintiff’s attachment by an act done anterior to his appointment. This he can not do. In considering the attempt to thus avoid, it must be noticed that the proceeding is not against him as executor de son tort, but is against him as executor de jure and by virtue of clear, explicit provisions of statute authorizing it. E. S., c. 86, § 36, and see also Oummings v. Garvin, 65 Maine, SOI.</p> <p>When the will was probated and this trustee was appointed executor, he gave a bond that he would thereafter administer the estate according to law. It would be a novel claim that this bond would be hold to cover acts done before his appointment and the giving of the bond. IBs appointment on the fifth of September could not authorize him to pay on the fourth.</p> <p>" The executor has no legitimate authority to do any act before the probate of the will except such as are strictly necessary and indispensable, such as providing for the decent burial of the deceased and such as are required to preserve the property of the estate and for the comfortable support of the family.’ 3 Bedf. Wills, 21.</p> <p>ELe can not convey the personal property. He can not sue for and collect debts. Campbell v. Sheldon, 13 Pick. 22. Having advanced his own funds to his brother, the defendant, before his appointment as executor, the day before, ho made himself the creditor of his brother to that amount and stood in the same relation to him after the appointment. It did not give him a lien on the legacy.</p> <p>Counsel further contended that the transaction was clearly devoid of good faith, and that it was void as to creditors by the common law. In reply counsel cited: McKeen v. Frost, 4G Maine, 249 ; Gilman v. Gilman, 54 Maine, 456 ; Feltingill v. Pettingill, 60 Maine, 411: 3 Bedf. Wills, 21.</p> <p>cited: 2 Bedf. Wills, 14-16; Hand v. Hubbard, 4 Met. 256; Spring v. Farkman, 12 Maine, 132.</p>

ON REPORT. Assumpsit on the following account: All hills must be paid by Chech; to our order, or in current iunis at our office. [Red ink. j TERMS CASH. BOSTON, OCT. 9th, 1383. Mess. JohN Moris on & Co., Bought of CHAS. W. TRAINER & CO. Manufacturers and Dealers in LUBRICATING, PARRAFINE AND WOOL OILS, 148 & 150 Oliver and 93 Purchase Streets. The evidence shows that Richardson was not authorized by principal to receive payment.

On exceptions from the superior court. The case is stated in the opinion. At tlie trial the plaintiff put in the defendant’s admission that ho endorsed the original writ, the record of the judgment, the execution with the officer’s return thereon as follows : Cumberland, ss. October 5, 1883. ' I have demanded payment of the within execution of John J. Perry, and he neglected to pay or to show me personal property sufficient to satisfy the within execution. II. 11.

ON exceptions by the defendant which made a full report of the evidence, writ and pleadings, and the records put into the ease a part of the case.” The case is stated in the opinion.

<p>On exceptions.</p> <p>Appeal from the award of damages made by the county-commissioners in locating a way. On motion the presiding justice dismissed the appeal as not seasonably taken, and to this ruling the appellant alleged expeptions. The facts are stated in the opinion. •</p> <p>cited: Dwarris, Statutes, (2d ed.) 530, 531, 532; Wilberforce, Statutes, 318, 330, 331 and cases cited; Broom, Legal Maxims, 123; Bishop, Written Laws, 154 and cases cited; Pratt v. R. R. Go. 42 Maine, 579 ; Martin v. Ins. Go. 53 Maine, 419; Maxwell, Interp. Stats. 66, 157, 158; Sedgw. Stat. and Cons. Law, 123 et seq; Hardcastle, Cons, and Eq. Stat. Law, 174 and cases cited; State v. Oleland, 68 Maine, 258 ; Tracy v. Goodwin, 5 Allen, 409; Carver v. Smith, 90 Ind. 222; State v. Sturgis, 10 Or. 58; Battersby v. Kith, 2 Bing. (N. C.) 609; Sandiman v. Breach, 7 B. & C. 99; Swift v. Jewsbury, L. B. 9 Q. B. 312.</p> <p>By stat. 1883, c. 175, incorporated in B. S., c. 18, § 8, an entire and radical change was made in the law relating to these proceedings. Now a party desiring a revision, on damages, must give notice of appeal from the decision of the county commissioners " before the third day of the regular term succeeding that at which the commissioners’ return was made.” This notice must be filed with the commissioners. Then a complaint must be made to the Supreme Judicial Court at the first term that is held more than thirty days after the time limited for filing the notice of appeal.</p> <p>These provisions are specific and must be complied with to give the party a right to a review by the court. It is purely a statutory remedy, and without a compliance with its provisions the estimation of the commissioners must stand. The Supreme Judicial Court has no original jurisdiction over the subject matter.</p> <p>R. 8., c. 18, § 47, in its arrangement in the statute is placed with those provisions relating to ways in " places not incorporated,” § 41. Appeals may be taken from such locations, § 44. This section provides for proceedings by petition and not by complaint. It is by petition to be filed within sixty days. Looking at its origin it will be found to have been passed in 1880, o. 218. At the time of its passage all proceedings of this character must be commenced by petition to the county commissioners. It was, it will be perceived, passed three years before the provisions giving the Supreme Judicial Court jurisdiction. It therefore becomes entirely clear that it related to proceedings before county commissioners and to none other. Three years after its passage all authority over the matter theretofore possessed by the county commissioners, was withdrawn from them. Stat. 1883, c. 175. That statute omitted in the enumeration of sections repealed in consequence of the change in the act of 1880. Being unrepoaled specifically and not applicable to the class of cases now before the court, the revision commissioner has placed it under the provisions applicable to " places not incorporated,” as those provisions were not affected by the act of 1883.</p> <p>It is said that when there is an appeal on location the way may not be located, and in that event the hearing on damages provided in § 5, would be useless. That is a possibility. So the damages may bo so much increased the commissioners will not locate, § 6. In that event the hearing upon the appeal from the location becomes useless.</p>

On exceptions. The case and essential facts are stated in the opinion. At the trial the presiding justice directed a nonsuit to be entered and the exceptions were to that ruling. contended that E. S., c. 46, § § 37-40, do not impose any individual liability upon stockholders in corporations created after 1836, for debts contracted after June 1, 1857, greater than a seizure and sale of their stock. The plaintiff’s remedy if any for unpaid capital is by bill in equity.

<p> Seal action. Purchaser pendente lite. </p> <p>’H conveyed to S a parcel of real estate tlie deed for wliicli was not recorded. A third person, who had previously levied an execution upon the same real estate, without notice of the unrecorded deed, brought an action against H for the possession of the estate. After that action was entered in court, S recorded his deed. JECeld, that S could be regarded in no other light than as purchaser pendente lite.</p> <p>.A purchaser of real estate pendente lite is chargeable with notice of the character of the suit, and of the extent of the claim asserted in the pleadings in reference to the title to such real estate, without express or implied notice in point of fact.</p> <p>' .As such purchaser, he is bound by any judgment that may have been entered against the party from whom he has derived his alleged title, equally as if he had been a party to such judgment from the beginning. And the litigating parties are exempted from taking any notice of the title so •• acquired; nor are they obliged to make such purchaser a party to the suit.</p>

On exceptions. Trespass quare clausum. The plaintiff was the owner of lot number four and the defendant was the owner of lot number five, range three in Greenfield. The question in controversy involved the location of the line between those two lots.

ON EXCEPTIONS. Action of dower. The defense set up a loss of dower by the divorce of the plaintiff’s husband from her granted by the Eecorder’s Court of Chicago, Illinois, in 1870.

<p>On REPORT.</p> <p>The opinion states the case.</p> <p>cited: Oole v. Union Insurance Oo. 12 Gray, 501; Ooohin v. JUT. E. Ins. Oo. 12 Gray, 501; Wood v. JST. E. Mar. Ins. Oo. 14 Mass. 36; Bowen v. Merchants Ins. Oo. 20 Pick. 275 ; Merchants Ins. Oo. v. Olctpp, 11 Pick. 56.</p> <p>cited: 2 Marshall, Insurance, c. 15 ; 1 Marshall, Insurance, § 4 ; Arnould, Insurance, 296, 302 (2 ed.) ; McEim v. Phoenix Ins. Oo. 2 Washington C. C. 89 ; Murray v. Ins. Oo. Penn. 2 Washington C. C. 186; Wiggin v. Suffolk Ins. Oo. 18 Pick. 153.</p> <p>The only evidence in writing of the defendant’s promise to pay was the note on which suit was begun after the end of the voyage. The contract was entire and not divisible, and for one consideration. The plaintiff, having brought suit and recovered judgment on the premium note, has made his election and must abide by his choice. See Wiggin v. Suffolk Ins. Oo. supra. The plaintiff cannot have two actions on the same debt.</p>

On exceptions from the superior court. An indictment for keeping a liquor nuisance.. Verdict, guilty. The exceptions were to the ruling of the court in overruling a motion in arrest of judgment. (Indictment.) State of Maine. Kennebec, ss. At the superior court, begun and holdeu at Augusta,, within and for the said county of Kennebec, on. the first Tuesday of December, in the year -of our Lord one thousand eight hundred and eighty-four.

<p>On exceptions and report.</p> <p>Bill in equity. The exceptions were to the ruling of the i court in overruling a demurrer to the bill. After testimony was .taken the presiding justice being of the opinion that the questions ■of law involved in the suit were of sufficient importance, with the consent of the parties, reported the case to the law court. 'The essential facts are sufficiently stated in the opinion.</p> <p>Under the provisions in the will, this estate vested in fee in "the devisees, as tenants in common, subject only to be divested if the power of sale should be exercised under circumstances Justifying it. The courts incline to treat the estate as vesting in the heirs or devisees, (who are identical in this case,) where there is no direct devise to trustees, unless the duties imposed upon the trustees (in this case the executors) are such as require them to be seized of the legal estate in order to execute their 'trust. Feering v. Adams, 37 Maine, 265 ; Perry on Trusts, § 511 a.</p> <p>A devise to the executor to sell gives a power coupled with an interest; but a devise directing executors to sell confers a power, without interest, and the fee vests in the devisees. Fay v. Fay, 1 Cush. 105; Shelton v. Homer, 5 Met. 462; Lamed v. Bridge, 17 Pick. 339 ; Sugden on Powers, p. 106-111; 2 Burr, 1027; Bergen v. Bennett, 1 Caines’ Ca. 16; Hill on Trustees, 236,471; Perry on Trusts, §§ 250, 251, 765.</p> <p>A direction to "divide” would not imply a power of sale. Perry on Trusts, § § 765-766; Taylor v. Benham, 5 How. 269.</p> <p>It follows that unless the power given in this will is legally executed, the title to the land was in the devisees, Smith’s children. Hill on Trustees, 472 ; Perry on Trusts, § 765.</p> <p>As the executor was not charged with any duty in managing the real estate, even if the legal estate had been in him, it would have been a dry trust, which under the statute of uses would be executed in the eestuis que use, and the title would be in them, subject to the power. Perry on Trusts, §§ 520-521; Hill on Trustees, p. 231, note. 2.</p> <p>When land descends to the heir or is devised, and a naked power of sale is given to an executor, as in this case, the heir or devisee is entitled to the profits and possession until the sale. Seymour v. Bull, 3 Day, 389 ; Perry on Trusts, § 769.</p> <p>A power must be strictly executed or the conveyance fails. Perry on Trusts, § § 511 a, 511 b, 783, 784, 785, 789.</p> <p>A purchaser from one selling under a power, must at his peril see that the power is legally executed. Perry on Trusts, § § 789,790.</p> <p>He must at his peril ascertain whether the facts justify the execution of the power. Perry on Trusts, § § 224, 769.</p> <p>In the case at bar, Brewer, the executor, in attempting to convey title to Cobb and Jacobs under this power, recites in his deed: "It being necessary, in my opinion, to carry into effect the provisions of said will, to make this conveyance, and for the purposes therein expressed.” This is mere recital and not proof of the fact; but it is not enough. His power authorized him to convey in trust, or to hold, if he believed the best interest of some one of the children would not be promoted by his coming info immediate or actual possession of his share. It was only in this contingency that he could convey, but in his deed he recites no such fact or belief. The deed therefore, on its face, is not full enough to be a good execution of the power, and it cannot be aided because the facts do not warrant it.</p> <p>Whether the recital in this deed is sufficient or not, it does not conclude. Sievens v. Winshijp, 1 Pick. 325; Minot v. Prescott, 14’Mass. 496; Lamed v. Bridge, 17 Pick. 339; Perry on Trusts, § § 224, 769 ; Sugdenon Powers, 267 ; Hill on Trustees, 478, note 2.</p> <p>A widow had power under a will to mortgage for her support. If was held that she could not mortgage for one thousand five.. hundred dollars unless the whole amount was needed for her support. Paine v. Barnes, 100 Mass. 471.</p> <p>Power to sell on contingency, sale cannot be made unless contingency happens. And that is a question of fact for the jury. If contingency has not happened, deed reciting the power is invalid. Stevens v. Winship, 1 Pick. 325 ; Minot v. Prescott, 14 Mass. 496; Lamed v. Bridge, 17 Pick. 339; Rathbun v. Oolton, 15 Pick. 486; Johnson v. Battlle, 125 Mass. 453.</p> <p>In Penniman v. Sanderson, 13 Allen. 193, the sale was sustained, but the power authorized a sale if deemed expedient to raise money for any purposes of the will. The contingency on which sale may be made is a condition precedent, and must exist before a sale can be made. Sugden on Powers, 267; Hill on Trustees, 478, note 2.</p> <p>If the power is to sell to invest in a particular way, the purchaser is bound to see to the application of the purchase money. Sugden on Powers, 268 ; Doe v. Martin, 4 Term E. 39.</p> <p>The invalidity of the deed is not apparent on its face, hence equity has jurisdiction. Briggs v. Johnson, 71 Maine, 235 ; Daniel’s Chancery, v. 3, p. 1961, note; Story’s Equity, vol. 1, § 700-711; Hubbéll v. Ourrier, 10 Allen, 333; Knight v. .Maybury, 48 Maine, 158 ; Orooher v. Orooher, 46 Maine, 250; Ohafee v. Banh, 71 Maine, 529.</p> <p>cited: Brown v. •Johnson, 53 Maine, 248 ; Pierce v. Faunce, 47 Maine, 507 ; Morse v. Machias W. P. Oo. 42 Maine, 119; Story’s Equity Pleadings, § 76, c. (n. 4) § 87 and n. 6, and § § 73, 510, 245, .246 and 249 a.</p> <p>Bill is demurrable because there was no written memor•andum by either of these defendants to convey said real estate. Walker v. Loche, 5 Cushing, 90; Ahrend v. Odiorne, 118 Mass. 263; 1 Williams, Executors, 549; 2 Eedfield, Wills, 122-3-4; Perry on Trusts, § 501; 2 Spence, 366 and 367; Going v. Emery, 16 Pick. 107; Perry on Trusts, § 224, 218 .and 219 ; Somes v. Brewer, 2 Pick. 184; Green v. Tanner, 8 -Met. 411; Robbins v. Bates, 4 Cush. 104; Hoffman v. Noble, 8 Met. 68; Wyman v. Ilooper, 2 Gray, 141; Spofford v. Weston, 29 Maine, 140; Roberts v. Bourne, 23 Maine, 165 ; Bides v. JSTorcross, 14 Pick. 224; Tilton v. Hunter, 24 Maine, 29.</p>

<p> Contributory negligence. Ways. </p> <p>It is settled law in tins state that, in an action against, a town to recover damages for the death of a person alleged to have been caused by the negligence of the town in not keeping one of its ways in repair, the burden of proof is upon the plaintiff to show due care on the part of the deceased.</p> <p>A person undertook to drive with a horse and pung over a road, across which was flowing at tlie timo a stream of water thirty or forty rods wide, and in some places not less than three feet deep, with a current moving' at the rate of five miles an hour, and carrying upon its surface cakes of ice, some of which wore twenty-five or thirty feet in diameter; at some stage of his journey, and in some way, he and his horse got out of the road and were precipitated into the deeper channel of the river below and drowned. Held,, that one who knowingly and unnecessarily exposes himself to such perils can not l)e regarded as in the exercise of due care.</p>

On exceptions and motion. An action for pauper supplies furnished William O. Kaherl and his wife, Mary O. Kaherl, and their children. It was admitted that the settlement of William O. Kaherl was in Belgrade, and the settlement of his wife, before her marriage to him, wins in Camden. The defence only related to the settlement of Mary Í).

On report from superior court of facts agreed. An action on the case for damages for the alleged perjury of ’witnesses introduced by the defendant at the trial of a former ¡action between the parties, in which the verdict was for the defendant and judgment was rendered thereon April 21, 1877. At the March term, 1883, the plaintiff filed a petition for review of that action, and at the following October term that petition was dismissed.

On report. An action under E. S., c. 24, § 45, for re-imbursement for pauper supplies furnished the defendant upon her application by-Oxford and Auburn and re-imbursed by the plaintiff town where the defendant had a legal settlement.

<p> Master and servant. Fellow servant. </p> <p>A city is not liable for an injury to a laborer employed in constructing a sewer, when caused by the carelessness of one who had the oversight and direction of the work.</p>

<p> Mguity. ¡Receiver. Joint-stock, companies. </p> <p>The plaintiff's, four in number, and the defendants, thirteen in number, are members of an unincorporated joint-stock company; the property of the company at the commencement of the suit consisted of a building, a small amount of furniture and eighty-two dollars in money, in all of the value of about eleven hundred dollars; the stock was divided into ten-dollar shares, of which the plaintiffs owned twelve shares and the defendants the balance; the building was erected for the use of the Patrons of Husbandry, of which all the defendants are members, and the plaintiffs had been members. Held, that equity does not require that a receiver should be appointed to sell the property and divide the proceeds among the members of the company.</p>

<p> Evidence. Exceptions. Practice. </p> <p>Evidence of a declaration of a son of one of the parties, made in the presence and hearing of his father, who remained silent, was admitted against objections, and the jury were instructed that it was for them to determine what significance they would attach to it. Held,, no error.</p> <p>In order to sustain an exception to a ruling excluding a conversation, the exceptions must disclose wliat the conversation was.</p> <p>An error must affirmatively appear in order to sustain an exception; it can not be assumed.</p>

<p>On report of facts agreed.</p> <p>Writ of entry to recover possession of certain real estate in Jefferson.</p>

<p>ÜN EXCEPTIONS.</p> <p>An notion to enforce a lien on bricks under R. S., c. 91, § 28. ’The defendant being insolvent the assignee in insolvency ■■appeared and claimed the bricks attached. The exceptions were to the ruling of the presiding justice that the plaintiff had no ■statute lien.</p> <p>The opinion sufficiently states the facts.</p> <p>The lien sought to be enforced by this suit is based on R. S., •o. 91, § 28. " Whoever performs labor, or furnishes labor or wood for manufacturing or burning bricks, has a lien on such bricks for such labor and wood,” etc., and the same and subse- ■ cjuent sections prescribe the time, manner and proceedings for 'the enforcement of such lien, all of which have been complied 'with.</p> <p>The statute is not one which can be restricted or diminished :in its operation by strict rules of construction. It is in the interest of common right and in accordance with the common ■law. Chitty on Contracts, (10th Am. ed.) 594; Sawyer v. Fisher, 32 Maine, 28.</p> <p>The vocabulary does not afford a more comprehensive term than the word " whoever ” by which the application of the ■statute is determined. As defined by Webster, it is synonymous with " whosoever,” and means " any one without exception,” " any person whatever.”</p> <p>Proceedings in insolvency do not defeat a lien nor deprive the claimant of the ordinary and appropriate means for its enforcement. " The assignee takes the property subject to all existing ■liens and incumbrances.” Hutchinson v. Murchie, 74 Maine, 187.</p> <p>The plaintiff’s employment as general manager made him an agent of the corporation. Law Dictionary, title " Manager.” An agent may maintain a lien as against his principal. FTewhall v. Dunlap, 14 Maine, 180.</p> <p>Under the contract the bricks were, and were expected to remain the property of the company until sold, whether by the plaintiff as general manager, or by the treasurer, is immaterial. This contract was supplemental to his general employment. It embraced all the elements of the particular lien at common law, except that the property was to go out of his possession before he would receive his pay. Oakes v. Moore, 24 Maine, 214; Newhall v. Dunlap, supra. It was not a mortgage. Sawyer v. Fisher, supra. Whatever other rights it conferred upon the plaintiff, he might lawfully waive them, and rely upon the statute lien, for which it laid a complete foundation.</p> <p>In reply counsel cited: Potter, Corporations, § 84; Bank of U. 8. v. Dandbridge, 12 Wheat. 64; Bank of Columbia v. Patterson, 7 Cranch, 299 ; 2 Kent’s Com. 289, 290; Coffin v. Pick, 45 Maine, 507 ; 1 Greenl. Ev. 189 : Kip v. Bank of N. Y. 10 Johns. 63; Cram, v. Bangor House Prop. 12 Maine, 354; Winslow v. Kimball, 25 Maine, 493 ; Ingalls v. Cole, 47 Maine, 530; Pratt v. JR. JR. Co. 42 Maine, 579; Collins Granite Co. v. Devereux, 72 Maine, 422 ; Peering v. Cobb, 74 Maine, 332; Briggs v. Parkrnan, 2 Met. 258; Clarke v. Minot, 4 Met. 346; Fuller v. Nickerson, 69 Maine, 228 ; Spofford v. True, 33 Maine, 297; Plummer v. Walker, 24 Maine, 14; Holmes v. Robinson Mf’g Co. 60 Maine, 201; Dyer v. Brackett, 61 Maine, 587.</p> <p>cited; Cunningham v. Hall, Q9 Maine, 353; Siorer v<Haynes, 67 Maine, 420 ; Lambard v. Pike, 33 Maine, 141; Bicknell v. Trickey, 34 Maine, 273; Pearson v. Tinckner, 36 Maine, 384; Johnson v. Pike, 35 Maine, 291; Perkins v. Pike, 42 Maine, 141; Bank v. Redman, 57 Maine, 405; Baker v. Fessenden, 71 Maine,. 292; Peering v. Lord, 45 Maine, 293.</p>

ON report from the superior court. The case is sufficiently stated in the opinion. It may be argued that the vote of the committee requiring a bond was not complied with. If so, we contend, the published proposals and specifications called for no bond. The vote of the committee was after the agreement was completed — after the award was made.

ON report of facts agreed. The case and material facts are stated in the opinion. This action is not only authorized by the statute (B. S., c. 65, § 31,) but is in accordance with the decisions in Massachusetts and in our own state. Farwell v. Jacobs, 4 Mass. 635. If the will shows an intention on the part of the testator to give a legatee a preference, that legacy is exempt from abatement in case of deficiency. Boper, Legacies, 115.

On exceptions. An appeal from the decision of a trial justice in an action under the statute to recover double the expense of building a part of that portion of the line fence between the lands of the parties as had been set off to the defendant to build by the fence viewers of Hebron.

<p>On report of facts agreed.</p> <p>The only question presented by the report was the liability of the trustee, and the opinion states the facts bearing upon that question.</p> <p>It is frequently stated in the cases and text books as a general rule, that to charge a trustee the defendant must have a cause of action against him. Drake on Attachments, § 463 ; Maine .Fire & Marine Ins. Go. v. Weeks and Tr. 7 Mass. 438 ; White v. Jenkins and Tr. 16 Mass. 62; Brig den v. Gill and Tr. 16 Mass. 522; Bundlett v. Jordan and Tr. 3 Maine, 47.</p> <p>These four cases are cited repeatedly as leading cases to sustain such general rule, but in fact they are not authority for any such position. Each case was presented and decided rightly upon facts not involving this rule, and its discussion, not being called for and entirely outside the facts of the case, was not authority but only dicta. If such rule exists it admits of so many exceptions as to practically abrogate it. See Drake on Att. § 464; Staples v. Staples, Tr. 4 Maine, 532; Burnell v. Weld, 59 Maine, 425 ; Glapp v. Hancock Bank and Tr. 1 Allen, 394.</p> <p>Many more instances might be cited, but these are sufficient to show that such a rule does not in fact exist, and that the right to maintain an action, though a usual, is not a decisive test, as stated in Whitney v. Munroe, 19 Maine, 42. But were it decisive, the case shows, we submit, a cause of action by the defendant, William H. Phinney. The promise was to pay Edmund Phinney, his executors, etc., for the sole use of these children. It being impossible to pay to Edmund Phinney, and the words executors, etc., adding nothing to the promise, it is in effect a promise of the company to pay (upon a certain contingency which has happened) four thousand dollars, for the sole-use of the children named, and upon such a promise the children must sue if any remedy exists. Here the proceeds are not. assets in the hands of an administrator, and are not the property or personal estate of the deceased, but are the property of the children, "not by descent, but by virtue of the contract.’^ Oragin v. Gragin, 66 Maine, 517.</p> <p>By K. S., c. 64, § 1, "No administration shall be granted on the estate of any deceased intestate person, unless it appears that' he left personal estate to the amount of at least twenty dollars, or owed debts to that amount, or left real estate of that value.” If a person died leaving such a policy and no real or personal estate or debts to the above amount, no administrator could be appointed, and if the beneficiary could not sue, no remedy would exist.</p> <p>It is fully established by a long line of decisions that suits upon fire and marine insurance policies may be brought in the name of the assured or of the parties in interest, whether named in the policies or not. Phillips on Ins. vol. 2, § 1,958; Pitney v. Ins. Go. 65 N. Y. 6 ; Farrow v. Ins. Go. 18 Pick. 56; /Somes v. Ins. Go. 12 Gray, 532 ; Patterson v. Ins. Go. 64 Maine, 503. And that it makes no difference that by the express terms .of the policy it is made payable directly to the person who negotiated the policy. Williams v. Ocean Ins. Go. 2 Met. 303 ; Sleeper v. Union Ins. Go. 65 Maine, 395.</p> <p>Such decisions are not alone due to the fact that insurance policies are liberally construed, but that "it is sound doctrine applicable to simple contracts generally, and the appropriate and well established doctrine of contracts of insurance, that if one make a promise to another, for the benefit of a third, the latter can maintain an action upon it in his own name.” Motley v. Ins. Go. 29 Maine, 340.</p> <p>The concise statement of the elementary principle that the party to be benefitted by a contract not under seal, (and the policy here was not under seal,) may sue thereon, although the promise be not made to him, in Chitty on PI. vol. 1, pages 5 •and 6, is well sustained by a long line of decisions, among which are Sargent v. Morris, 3 B, & A. 277 ; Felton v. Dickinson, 10 Mass. 287; Arnold v. Lyman, 17 Mass. 405; Brewer v. Dyer, 7 Cush. 340; Martin v. FEtna Ins. Go. 73 Maine, 28.</p> <p>" On life policies the suit may be brought in the name of the ■beneficiary.” May on Ins. § 446.</p> <p>" The legal representatives of the insured have no claim upon •the money and can not maintain any action therefor, if it is expressed to be for the benefit of some one else.” Bliss on Life Ins. § § 317 and 318.</p> <p>We are aware that it has been decided otherwise in Bailey v. N. E. Ins. Co. 114 Mass. 178, but that court does not always appear to have entertained the same opinion. In Brewer v. Dyer, 7 Cush. 340, the same principle was involved, and the court in a well considered opinion, fully discuss the rule, its reasons and exceptions, and say that he who would enjoy the benefit may maintain the action. As late as 1881, in Norris v. Mass. Mul. Life Ins. Co. and al. 131 Mass. 294, a bill in equity was brought by a creditor of the widow of W. L. Bowser, who had taken a policy in the defendant company, payable to him, his executors, administrators and assigns, for the benefit of the widow. Plaintiff hold the policy, without assignment, as collateral to his debt of Mrs. Bowser, and brought his bill to compel the insurance company to apply the sum due on the policy to his debt. Geay, C. J., says, "The contract of the company was with Mrs. Bowser only.” And that the court could compel the application "of the money due from the company to Mrs. Bowser” to the payment of her debt.</p> <p>contended that the trustee should be discharged on the ground that an action could not have been maintained against the company by the beneficiaries named in the policy, and to this point they cited: Chitty, Contracts, (11 Am. ed.) 74-76; Metcalf, Contracts, 205-211; Bailey v. New England, Insurance Go. 114 Mass. 178; Millard v. Baldwin, 3 Gray, 484; Field v. Crawford, 6 Gray, 116; Doiu v. Ciarle, 7 Gray, 198; Frost v. Gage, 1 Allen, 262; Exchange Bank v. Rice, 107 Mass. 37; Butterfield v. Hartshorn, 7 N. IT. 345; Warren v. Baehelder, 15 N. H. 129; Chamberlain v. Ins. Co. 55 N. H. 249 ; Bowers v. Parker, 58 N. IT. 565 ; Porter v. Raymond, 53 N. IT. 519; Treat v. Stanton, 14 Conn. 445; Saiely v. Cleveland, 10 Wend. 156; Greenfield v. Ins. Co. 47 N. Y. 430; Burroughs v. Assurance Co. 97 Mass. 359; Campbell v. Ins. Co. 98 Mass. 381; Unity Ass'n v. Dugan, 118 Mass. 219; Mass. Mut. Life Ins. Co. v. Robinson, (Ill.) 11 Ins. Law J. 162; IT. S. Life Lns. Go. v. Lugwig, (Ill.) 11 Ins. Law J. 700; Tewksbury v. Hayes, 41 Maine, 128; Dicey, Actions, 94-116.</p>

On motion to set aside the verdict. An action to recover damages for personal injuries received by the plaintiff while in the employ of the defendants. The facts are stated in the opinion. The verdict was for the plaintiff in the sum of two hundred and forty-five dollars and the defendants moved to set it aside as against evidence.

ON REPORT. Trespass against the assessors of Silver Ridge Plantation for timber and bark cut from lots reserved for public uses in that plantation under permits given by them in 1879. The writ was dated November 8, 1883. The opinion states the material facts. cited; XL S-, c. 5, §10; 2 Greenl. Ev. §'§ 613, 615: Wall v. Osborn, 12 Wend. 39; Guille v. Swan, 19 Johns. 382; Scott v. Shepard, 2 Black.

Bill of interpleader. At a hearing on the bill it was ordered that the plaintiff pay the money into court and that the respondents interplead — that the respondent, Palmer, set out his claim in the form of an original' bill and the respondent, Haley, answer thereto.

<p>On exceptions.</p> <p>The opinion states the case. The verdict was for the plaintiff for the sum of nine hundred and sixty-three dollars and four cents.</p> <p>It is not open to one who uses an expert to bolster up his opinions by giving Ms reasons. On cross-examination they may be inquired into or not as the cross-examiner chooses. The expert’s opinion simply is all that he is permitted to give on direct examination.</p> <p>cited: Sexton v. Bridgewater, 116 Mass. 200.</p>

<p>Assessors of Bath, their election and qualification. Taxes against executors and administrators. Evidence. Exceptions. B. S., c 6, § 142.</p> <p>.An assessor of the city of Bath was elected and qualified in 1880 for three years. In 1883 he was re-elected, but it was denied that he was qualified. In 1884, he resigned and was re-elected for two years, to fill the vacancy, and was duly qualified. Held,</p> <p>1. That if he was not qualified under the 1883 election, he would hold over under his previous election, and that his acts as assessor during that year were valid.</p> <p>2. That his resignation and re-election in 1884 were legal.</p> <p>-A tax was assessed against the “ administrators of the estate of R,” when the representative parties were executors and not administrators. Held, that this was not a fatal mistake, it being fairly within the scope of R. S., c. 6, § 142; and that parole evidence was admissible to show that the executors were the individuals intended to be taxed.</p> <p>^Exceptions will not be sustained to the admission of evidence which was so immaterial that it could do the excepting party no harm.</p>

<p>ON EXCEPTIONS.</p> <p>Assumpsit on the following account annexed;</p> <p>Earmington, April 21, 1881.</p> <p>WI. W. CHURCHILL,</p> <p>1881. To GEO. H. WILLS, Dr.</p> <p>June 1, Labor, $ 2.00</p> <p>June 11, Shingle machine. 100.00</p> <p>July 5, 1882. Paid freight, 5.00</p> <p>Jan’y 6, 1881. To labor, 3.35 110.35</p> <p>July 15, Cr. By lumber, 50.00 50.00</p> <p>Balance due, 60.35</p> <p>The defendant filed a demurrer to the declaration alleging’ as a cause that the first, third and fourth items were not properly stated. The demurrer was overruled by the presiding justice and the defendant alleged exceptions.</p> <p>submitted without argument.</p> <p>I think the demurrer should be sustained. I do not think the first, third, and fourth items are sufficiently definite in the account annexed to the writ. If the first item " labor ” is good for two dollars it is good for one hundred dollars. It does not state whether it is his own personal labor, or the labor of some one else, or whether it is for that of some domestic animal, or whether it was performed at one and the same time, or the kind of labor; also, same reasoning as to fourth item. The same reasoning applies to the charge " Pd. freight.” For aught that appears it may have been paid at different times and in different items. If so an amendment is necessary, and it seems to me that an inspection of the writ shows an amendment necessary. I reply upon case of Bennett v. Davis, 62 Maine, 544, and cases there cited.</p> <p>What protection would a record of this kind be to a defendant for another action by the same party properly stated ?</p>

On exceptions by the plaintiffs. Assumpsit on an account annexed. The defendants filed, 1. A plea to the jurisdiction of the court. 2. A plea of a i’ecovery February 4th, 1885, pending this suit, of a judgment by these plaintiffs against these defendants for the same causes of action. This was Saturday. On Monday, the defendants sought and obtained leave to file the general issue, which was joined the same day.

<p> Probate appeal. Gosts. </p> <p>In an appeal from a decree of the probate court, allowing- a will, to the Supreme Court of Probate, the whole subject of the allowance of costs is in the discretion of the court. In such case with a final decree in the Supreme Court of Probate sustaining the will without allowing costs, no costs can be recovered. Such a decree, silent as to costs, bars tlie recovery of costs as effectually as an affirmative decree disallowing them.</p>

On exceptions and motion to set aside the verdict. Case for diverting the water from the plaintiffs’ water mills in Calais. The opinion states the facts.

On exceptions. Debt on poor debtor’s bond given by Seveno as principal and! the other defendants as sureties. The plea was non esi factum and a brief statement that Seveno bad performed one of the-conditions of the bond, by citing the creditor and disclosing and taking the proper oath, and receiving a certificate from the' justices administering the oath.

Debt on judgment; the defense relied upon was a discharge under the insolvent law. The judgment, rendered after the passage of the insolvent law, was upon a contract liability incurred prior to the enactment of that law.

On itKPOiiT. Real action for the possession of a certain house and lot on Lincoln street, Lewiston. By the terms of the report the law court were authorized to draw such inferences of fact as a jury might, and render such judgment as the legal rights of the parties required.

<p>Note. The same question was involved in a case from Somerset county.</p>

On exceptions from the superior court. An action of the case to reoover alleged injuries claimed to have been sustained by the plaintiff to himself, his horse and carriage, by reason of an alleged defective granite crossing in Oakland. The crossing was built by the defendant by order of \ the selectmen.

■ON EXCEPTIONS. Trustee process. The case has been once before the law Walton and Walton, for the plaintiffs, contended that the ¡plaintiffs were the prevailing party and entitled to costs. The .trustee was first discharged on the ground that the fund in his .hands belonged to the claimants.

<p>On report.</p> <p>Assumpsit on a promissory note. The facts are stated in the opinion.</p> <p>This action is properly brought in the name of Fuller. Shenoood v. Boys, 14 Pick. 172. Uneancelled endorsement no objection. Thornton v. Moody, 11 Maine, 253.</p> <p>Not necessary that plaintiff should have any beneficial interest in the note. Demuth v. Gutter, 50 Maine, 298 ; Whitcomb v. Smart, 38 Maine, 264; Eat. Pemberton Banle v. Porter, 125. Mass. 335. .</p> <p>Consent pending proceedings that the case may go on in his name, is a ratification by plaintiff of the previous proceedings. Lewis v. Hodgdon, 17 Maine, 267 ; Craig v. Twomey, 14 Gray, 486; Colder v. Loss, 43 Maine, 364.</p> <p>It is not necessary that the consideration should be adequate, "the smallest spark of consideration is sufficient.” Sanborn v. French, 22 N. H. 248; and a total want of consideration is necessary to make them void. Darroto v. Walker, 48 Superior Court, (N. Y.) 6. Being for future support, the consideration is executory and supports the promise. Loomis v. Fewhall, 15 Pick. 159.</p> <p>A husband may contract with his wife, living apart from him, to support herself, for a stipulated sum, and the terms of such a contract are binding on both. Alley v. Winn, 134 Mass. 77, and cases cited, and a fortiori for the support of the child. See also Page v. Trufant, 2 Mass. 158.</p> <p>It is as much a legal obligation as a loan of money to him, for which latter he might have given his promissory note, and for which after divorce she could sue him and recover the amount. Webster v. Webster, 58 Maine, 139; Carlton v. Carlton, 72 Maine, 115.</p> <p>Another feature of this case is, that these notes were given pending a divorce suit on the libel of the wife. A note given for the benefit of the child under these circumstances, puts the case on all fours with that of Stilson v. Stilson, 46 Conn. 15.</p> <p>Upon this phase of the case, it is not unlike Adams v. Adams, 24 Hun. 401, affirmed in 91 N. Y. 381.</p> <p>Upon the point whether the note given by a husband to a trustee for the benefit of the wife is upheld by the law, see Phillips v. Meyers, 82 Ill. 67; S. C. 25 Am. Eep. 295; see Amherst Academy v. Coiuls, 6 Pick. 427.</p> <p>The existence of the notes and an obligation for which they .might have been given is sufficient for that purpose. Dean v. •Carruth, 108 Mass. 242.</p> <p>Defendant is not prejudiced because suit is in name of a trustee. Demuth v. Cutler, 50 Maine, 298.</p> <p>Courts carefully scrutinize contracts between husband and wife. Blalce v. Blake, 64 Maine, 177; Robinson v. Clark, 76 Maine, 493 ; Lane v. Lane, 76 Maine, 521.</p> <p>The following cases were unlike the case at bar: Loomis v. JSTewhaU, 15 Pick. 159 ; Alley v. Winn, 134 Mass. 77 ; Webster v. Webster, 58 Maine, 139 ; Carlton v. Carlton, 72 Maine, 115 ; Stilson v. Stilson, 46 Conn. 15; Adams v. Mciams, 91 N. Y. 381.</p> <p>The note must be given in satisfaction of an obligation. Warren v. Durfee, 126 Mass. 338.</p>

On report. An action of the case for obstructing the drive of the plaintiff on Tom Fletcher brook in the spring of 1881. The opinion states the case. The report provided that the law court should render judgment according to the law of the case ; and it also provided as follows : If judgment be for plaintiff the court may declare the principles upon which damages are to be assessed, and such assessment shall be at nisi prius.

ON EXCEPTIONS. At the trial after the plaintiff’s testimony was out, the court, on motion of the defendant, ordered a nonsuit. To this ruling the plaintiff alleged exceptions. The opinion states the case and material facts. contended that this action was maintainable under E. S., c. 81, § 83, which gives a four years’ limitation.

Bill in equity. The case came to the law court upon the following agreement signed by the respective counsel: Emeline Whittemore, in eq. v. Charles B. Bussell, Adm’r, et ais. The above case is hereby made law by agreement of parties. Beplication waived. Bill, answer and depositions of James P. Bussell, and Emeline Whittemore to make case.”

<p> Mills and mill-dams. Flowage. Practice. </p> <p>Where an owner of land conveyed to another a mill and a limited water supply therefor, the conveyance restricting the grantee’s right of flowage over the grantor’s other land to an extent that would ensue from a dam, at the mill, only four feet high, such grantee is not thereby debarred from attempting to obtain a higher flowage under the flowage act; and, for raising the head of water higher than the deed prescribes, the grantor’s remedy in the first instance is under the flowage act, and not by suit at common law.</p>

On EXCEPTIONS. Writ of entry, dated March 28, 1884, brought by the administrator of the estate of Abel Tracy, deceased, to foreclose a mortgage. On the 26th of April, 1878, Tracy gave to 4 . Frank Hayward a deed of his homestead farm in Durham. His wife' did not join in the conveyance. On the same day Hayward gave to Tracy a mortgage back to secure a bond for maintenance as. stated in the opinion.

On exceptions and motion to set aside the verdict. An action by the administratrix of Edwin F. Chase for personal injuries received while crossing the defendant’s railroad at a private crossing in Richmond, February 24, 1882. The case has once before been considered by the law court and is reported in 77 Maine, 62.

Ox EXCEPTIONS and motion to set aside the verdict. Assumpsit by the executor of the last will of David B. Catland, deceased, to recover money received by defendant on a benefit policy of life insurance on the life of said David. The opinion states the case and material facts. cited, on the admissibility of the evidence: 1 Greenl. Ev.

<p> Mills and mill-dams. Flowage. Drift-stuff. </p> <p>'The complaint for flowage under tlie mill act only lies where the flowage is caused by a head of water designedly raised for the purpose of working a mill. ;Such a complaint can not he sustained by flowage caused by a head of water accidentally raised by a jam of drift-stuff and applied to no useful purpose.</p>

ON REPORT. Petition for partition dated August 5, 1885, in which the petitioner alleges that he is the owner of one-half of Lot No. 8, Strong’s survey, in the town of Milo ; that James A. Gifford of Milo was the owner of the other half, and that the estate ought to be divided. The defence was that William B. Gifford was the owner of the part claimed by the petitioner, and, by leave of court, he appeared and defended as to that part.

On report of bill in equity to which a general demurrer was filed.

ON REPORT. Trespass for taking and carrying away a cow and calf belonging to the plaintiff, May 8, 1885. The writ was dated August 17, 1885.

<p>On exceptions and motion to set aside the verdict.</p> <p>The case is stated in the opinion.</p> <p>cited: R. S., c. 143, § 34; 1 Wliart. Ev. 265, 266.</p> <p>It can make mo difference in principle whether the severance of the marital relation had continued one day or ten years. See the cases cited in Lewiston v. Harrison, 69 Maine, 507.</p> <p>In favor of personal liberty and to guard against sane persons being imprisoned on a charge of insanity, all the requirements of the statute, expressed or implied, should be fully and strictly complied with. R. S., c. 143, §§ 13 & 34; Naples v. Raymond, 72 Maine, 213.</p>

<p> Waters. Aqueduct. Easement. Prescription. Extinguishment of Easements Damages. </p> <p>An easement originating from water supplied by a spring not situated upon land belonging to the grantor of the plaintiff’s premises, will not pass as an appurtenance to the estate convoyed, unless it has become attached to the same.</p> <p>But where such easement, although not originally belonging- to an estate, has become appurtenant to it, either by express or implied grant, or by prescription, a conveyance of that estate will carry with it such easement, whether -mentioned in the deed or not, although it may not be necessary to the enjoyment of tlie estate by the grantee.</p> <p>There may be such an adverse and exclusive use of water flowing through an aqueduct, and for such a period of time, as may well be considered presumptive evidence of a grant.</p> <p>Such right may thereby be acquired by prescription.</p> <p>The right to draw water from a spring and to have pipes laid in the soil of another, and for that purpose to enter thereon, repair and renew the same, constitutes all interest in the realty, assignable, descendible and devisable.</p> <p>■Easements growing out of it may be acquired by grant or prescription, and thus become the objects of title in others. .</p> <p>An easement will become extinguished by unity of title and possession of the dominant and servient estates in the same person by the same right.</p> <p>But in order that the unity of title shall operate to extinguish an existing easement, the ownership of the two estates must he coextensive, equal in validity, quality, and all other circumstances of right.</p> <p>If one is held in severalty and 1he other only as to a fractional part thereof by the same person, there Will he no extinguishment of such easement.</p> <p>The rule of damages in actions for the wrongful diversion of water stated.</p>

ON report of facts agreed. Assumpsit on the following promissory note : Hallowell, January 1; 1881. 350.00. On demand after date, we promise to pay to the ¡order of John C. McClure, three hundred and fifty dollars at Hallowell, with interest, value received.

On exceptions to the ruling of the court in overruling a demurrer to the following complaint: (Complaint.) State of Maine. Lincoln, ss.

<p> Chattel mortgages. Conveyances. Practice. Bequested instructions. </p> <p>The owner of a pair of steers mortgaged them with other personal property to D, who assigned the mortgage to the defendant, hut prior to the assignment, the owner bona fide released his right of redeeming the steers and sold them to D who subsequently sold them to K taking back a mortgage thereof for the purchase mouey, which mortgage, D assigned to the plaintiff. In trover against the defendant who had taken possession of the steers: Held, that the defendant’s requested instruction,— that if D owned the steers when he delivered the mortgage to the defendant, that the title would pass to the defendant if D gave him to understand that the steers were included in the mortgage, was rightly refused, there being no testimony on which tó base the instruction.</p>

<p>On report from the superior court.</p> <p>Assumpsit on the award of an arbitrator for $171.17.</p> <p>cited : 1 Esp. 194 ; Tidd’s Practice, 756; Bouvier’s Law Diet.. " Insimul computassentsame, "Account stated.”</p> <p>There has been a failure to determine a controversy submitted, to wit: every claim (including those for intoxicating liquors) submitted by said Deehan and Hammond; except a few named in the award.</p> <p>The whole award is void. Ott v. Schroeppel, 1 Seld. 482; Wright v. Wright, 5 Cow. 197; McJSTea,r v. Bailey, 18 Maine, 251; Richards v. Drinlcer, 1 Halst. 307; Darker v. Hough, 2 Halst. 428; Garnoclian v. Christie, 11 Wheat. 446; Edwards v. Stevens, 1 Allen, 315; Varney v. Brewster, 14 N. H. 49; Stone v. Phillips, 4 Bing. N. C. 37; Mitchell v. Staveley, 16 East 58.</p> <p>The arbitrator in his award, expressly excepts, out of his decision, particular matter included in the submission, and this makes the award altogether bad. Bradford v. Bryan, Willis, 268 ; Wright v. Wright, 5 Cow. 197 ; Ott v. Schroeppel, 5 N. Y. (1 Seld.) 482; Turner v. Turner, 3 Russell, 494.</p> <p>The motive which induced the arbitrator to omit the determination of a matter submitted, seems to be immaterial. A misconception of duty is no excuse for the omission. The award must be held void. Bowers v. Fernie, 4 M. & Cr. 150; Brown v. Meverell, Dyer, 216 b; Wilkinson v. Page, 1 Hare, 276; Samuel v. Cooper, 2 Ad. & El. 752 ; Brophy v. Holmes, 2 Molloy, 1.</p> <p>The award should be co-extensive with the submission. Bhear v. Harradine, 7 Exch. 269.</p> <p>Awards have the force of judgments. Wharton’s Evidence, vol. 2, § 800, year 1877.</p> <p>The averments in the award can not be collaterally impeached by parol. 1 Co. Litt. 260 a; Glynn v. Thorpe, 1 Barn. & A. 153; Dickson v. Fisher, 1 W. Black, 664; Garrick v. Williams, 3 Taunt. 544; Galpin v. Page, 18 Wall. 365 ; The Achorn, 2 Abbott, IT. S. 434; Sanger v. Upton, 91 IT. S. (1 Otto) 56; Filis v. Madison, 13 Maine, 312; Dolloff v. Hartwell, 38 Maine, 54; Hall v. Gardner, 1 Mass. 172 ; Legg v. Legg, 8 Mass. 99 ; Wellington v. Gale, 13 Mass. 483 ; Kelley v. Dresser, 11 Allen, 31; Mayhew v. Gay Head, 13 Allen, 129 ; Com. v. Slocum, 14 Gray, 395 ; Capen v. Stoughton, 16 Gray, 364; Richardson v. Hazelton, 101 Mass. 108; Whiting v. Whiting, 114 Mass. 494.</p> <p>Additional facts which should be of record, cannot be added to a record by parol. Wilcox v. Emerson, 10 R. I. 270.</p> <p>To ascertain the character of a judgment, we must look to the record of it alone. An omission cannot be added by parol. Treftz v. Pitts, 74 Penn. St. 349.</p> <p>Parol evidence cannot be received to vary a written submission of award. Barlow v. Todd, 3 Johns. R. 367; DeLong v. Stanton, 9 Johns. R. 38; Efnev v. Shaw, 2 Wend. 567.</p>

Ox exceptions from superior court. Appeal from the municipal court of the city of Portland. September 23, 1885, one of the constables of the city of Portland, upon a warrant issued from the municipal court, seized at the freight depot of the Boston and Maine Railroad, Eastern Division, twenty half barrels of lager beer, marked National Home Store, Togus, Maine.” The warrant, return, libel, monition and claim, were all in due form and seasonably filed.

On EXCEPTIONS to the ruling of the justice presiding in .-sustaining a demurrer to the following libel for divorce [omitting formal part] : That he always conducted himself as a faithful, chaste and affectionate husband, but that the said [libellee,] wholly regardless of her marriage vows and obligations, has been guilty of cruel and abusive treatment of him in this : that between the 1st of January, 1885, and the date of this libel, almost daily, when he was at home, she…

<p> Hailroads. Hay and grass growing within railroad location. </p> <p>A railroad corporation lias practically the exclusive possession and control of the land within the lines of its location and the authority of removing therefrom all things growing thereon, the removal of which it may deem necessarily conducive to the safe management of its road.</p>

• On exceptions from superior court. This was an action of debt, on bond, purporting to be given in accordance with R. S., c. 113, § 15, commonly called a fifteen day” bond. At the trial the defendants introduced in evidence the affidavit attached to the original writ, in words and figures, as follows : State of Maine. Kennebec, ss. Hallowell, Sept. 6, 1883.

On EXCEPTIONS by the defendant to the ruling of the court in ■overruling a demurrer to the following complaint: 'State of Maine. Knox, ss.

On beport of facts agreed. An action for alleged pauper supplies which the plaintiff town claims to have furnished one Sylvanus Richards and family. The following is a copy of the letter from the pauper to the overseers referred to in the opinion. Other facts are stated in the opinion.- Yinalhaven, March 21, 1884.

<p> Referees. Practice. View. Objections to report. Exceptions. Surveyor. Costs. </p> <p>When objections to the report of referees are based upon facts outside the record, the alleged facts must be proved to the court to sustain the objections to the report. Exceptions to the ruling of the court upon such objections must show that the alleged facts were proved.</p> <p>An agreement as to the manner and place of hearing by referees, appointed by rule of court, is not binding, if it was not entered of record or embraced in the rule. When the parties do not agree upon the time and place of hearing the referees may determine the same.</p> <p>Where the question before referees relates to real estate they may or not in. their discretion view the premises, and tlieir determination, honestly made in regard to the necessity of a view, is final.</p> <p>Regularly it is for the court and not the referees to fix the compensation of a surveyor, appointed by the court in the case. But where the referees allow the charges of the surveyor, that part of their report will not he rejected, when there is no suggestion that the charges thus allowed were unreasonably large in amount.</p>

On exceptions. The opinion states the case. It is immaterial that there is a mistake in the Christian name if the deed explains who is intended. A deed to Robert Bishop of E, will be good, though his real name is Roland. 3 Washburn, Real Property, 265.

ON EXCEPTIONS. Trover for the wrongful conversion of certain articles of furniture, clothing and jewelry, alleged to have been the property of the deceased, Susan H. Buck. Held: of course, that no action would lie until these preliminary steps had been taken.

ON exceptions to the ruling of the court in overruling a demurrer to the indictment, which was as follows : The jurors for said state upon their oaths present that Manly Ellis Dodge, of Belfast, in the said county of Waldo, on the first day of January, in the year of our Lord one thousand eight hundred and eighty-five, and on divers other days and times between said first day of January aforesaid, and the first day of November, in the year of our Lord one thousand eight…

<p> Mortgages. Payment. </p> <p>When a mortgagee, who holds two mortgages, one of real and the other of personal estate, to secure the payment of the same debt, forecloses the personal mortgage, takes possession of the property and converts it to his own use, if its value exceeds the debt secured, it operates as a payment or satisfaction of it. There is no longer an existing debt to uphold the real mortagage.</p>

On retort, with the stipulations that, if the action could be maintained upon the allegations contained in the declaration, the case was to stand for trial, otherwise a nonsuit was to be entered.

ON EXCEPTIONS. Trover to recover the value of a certain quantity of logs claimed by the plaintiff to have been converted by the defendant. At the trial the presiding justice instructed the jury as follows : (1.) We find these two gentlemen each with an interest in á body of logs of the same mark.

ON EXCEPTIONS. s The case is stated in the opinion. cited: R. S., c. 82, §71; Porter v. Stanley, 47 Maine, 515. In Porter v. Stanley, 47 Maine, 515, we infer that there was some sort or system of book-keeping, to indicate the transaction of the several years in which defendant was a collector, because they were able to identify the fund from which money was taken to make up a deficiency in the first of those years.

<p>On exceptions.</p> <p>Appeal from the decision of the judge of probate. The presiding justice sustained the appeal and reversed the decree of the probate court. To this ruling the appellees alleged exceptions.</p> <p>The opinion states the material facts.</p> <p>In Thurston v. Powder, 40 Maine, 197, a question precisely in point is considered. An award was made by virtue of a treaty with the Mexican government for a vessel which had been destroyed. The treaty and award were both made long after the death of the owner of the vessel, and the court held that it made a part of his estate, although the treaty which made its collection possible was entered into long after his death. In the opinion in that case, Judge Kick quotes from the opinion in Poster v. Pijield, 20 Pick. 67, another case precisely in point.</p> <p>This fund constituting a part of the estate of Priscilla E. Cables, at her death it descended with the rest of her estate to Carrie E. Cables. This court has once decided that Priscilla Prescott was the only heir of Carrie E. Cables. Cables v. Prescott, 67 Maine, 582.</p> <p>The appeal was properly taken, as the appellant was the party aggrieved, and the only party, by the order appealed from. He also claims under an heir at law, and for that reason has an additional right of appeal, as shown by § 23, c. 63, It. S.; § 29, c. 63, 11. S.</p> <p>The appeal having been taken, the judgment and all the proceedings of the probate court are vacated, and the Supremo Court has full power to reverse or affirm, in whole or in part, pass any decree that the judge of probate should have passed, or remit the case to the probate court for further proceedings. Gilman v. Gilman, 53 Maine, 184; Carvill v. Carvill, 73 Maine, 136 ; § 28, c. 63, 14. S.</p> <p>The rule laid down in Knowlton v. Johnson, 46 Maine, 489, does not apply to the case at bar.</p> <p>cited: Moody v. Hutchinson, 44 Maine, 57 ; Bradstreet v. Brudstreel, 64 Maine, 211; Fowle v. Ooe, 63 Maine, 248; E. S., c. 65, § 27; .Hughes v. Farrar. 45 Maine, 72; 64 Maine, 583; Hnowlton v. Johnson, 46 Maine, 489.</p>

On exceptions. The opinion states the case and the facts upon which it rests. cited: R. S., c. 85, § 55; Whitwell v. Williard, 1 Met. 218 ; Robinson v. Saffiord, 57 Maine, 168; Houghton v. Houghton, 87 Maine, 72; Winthrop Bank v. Jackson, 67 Maine, 571; Harrington v. Stratton, 22 Pick. 510. That the notes and mortgage pledged to the plaintiff could be enforced by him against the person making them, although not assigned in writing, is common learning.

On report on facts agreed. The plaintiff brings this action as- administrator of the estate •of Herman Peters, who was a mariner in the employ of Captain Amos Leavitt for a long time. Mrs Marianna Leavitt went to sea a portion of the time, with her husband, Captain Amos. She persuaded Peters to save his money; in consequence of which he sent home by her or her husband, at various times, his earnings, or a portion of them, to be deposited for him in the savings banks in Saco.

ON motion of the plaintiff to set aside the verdict. Replevin of two horses. The plaintiff claimed title to the horses by virtue of a mortgage bill of sale from the defendant. The defense was that the mortgage was procured from the defendant through duress, and the verdict was for the defendant. At the trial the defendant, being called by his counsel as a witness, testified: Ques.

<p>ON exceptions to the ruling of the court in ordering a nonsuit.</p> <p>The opinion states the case and material facts.</p>

ON motion to set aside a verdict rendered in the superior court. The case and material facts are stated in the opinion. The verdict will stand, even if the conclusion of the court would have been different had the case been originally submitted to the court, unless manifestly against the weight of evidence, and unless it so preponderates in favor of the defendants as to authorize the court to infer that the jury acted under a mistake or were influenced by improper motives.

<p>On motion to set aside the verdict.</p> <p>The case and material facts are stated in the opinion.</p> <p>Actual violence is not necessary to constitute duress, because consent is the very essence of a contract, and if there be compulsion, there is no actual consent, and moral compulsion, such as that produced by threats to take life, or to inflict great bodily harm, as well as that produced by imprisonment, is everywhere regarded as sufficient, in law, to destroy free agency, without which there can be no contract, because there is no consent. 7 Wallace, 215; 16 Wallace, 431; 26 Am. Dec. 374, note; 5 Hill, N. Y. 156; 12 Wallace, 150.</p> <p>Duress means that degree of constraint or danger, either actually inflicted, threatened or impending, which is sufficient in severity or in apprehension to overcome the mind and will of a person of ordinary firmness. 7 Wallace, 215; 16 Wallace, 431; 26 Am. Dec. 375, note ; 39 Maine, 559 ; 12 Wallace, 150.</p> <p>A threat of criminal prosecution used to compel the giving’ of a promissory note may constitute duress, although the amount for which the note is given is actually due to the payee from the maker. 106 Mass. 291.</p> <p>Where there is an arrest for improper purposes and without just cause, Foss v. Hildreth, 10 Allen, 76; Guilleaume v. Rowe, 94 N. Y. 268 ; or for a just cause under lawful authority, but for an improper purpose, Ilackett v. King, 6 Allen, 58; 106 Mass. 295, it is duress of imprisonment.</p> <p>And if the prisoner pays money to procure his release, he may undoubtedly recover it back as having been involuntarily paid. 1 Parsons on Contracts, 392, note; 6 Mass. 511; 3 N. H. 508 ; 8 N. II. 386; 45 Am. Dec. 159, note; 7 Wallace, 215; 26 'Barb. 122 ; 6 Allen, 58; 10 Maine, 331; 106 Mass. 295 ; 21 Conn. 424.</p> <p>To use criminal process to enforce the payment of a civil claim is evidence of an improper purpose. 106 Mass. 295; 6 Allen, 58 ; 13 Maine, 146 ; see 10 Maine, 331.</p> <p>The imprisonment must have been originally unlawful, or must have become so by abuse of the process, so as to make it the instrument of fraud or oppression. 45 Am. Dec. 158, note ; 6 Allen, 58 ; 10 Allen, 76 ; 61 Maine, 227 ; 69 Maine, 376.</p> <p>Even if there is no actual imprisonment, but the money is paid to prevent a threatened imprisonment by one having apparent or supposed authority to make his threats good, the payment can be recovered back, for the law will not require the party to resist payment until he is actually deprived of his liberty. 61 Maine, 227 ; 28 Yt. 370 ; 45 Am. Dec. 159, note; 131 Mass, 51.</p> <p>The payment must not have been simply an unwilling one, but a compulsory one, and the compulsion must have been illegal, unjust and oppressive. 45 Am. Dec. 153, note; 7 Maine, 138.</p> <p>Even contracts procured by threats of battery to the person, or the destruction of property, may be avoided on the ground of duress, because in such case there is nothing but the form of a contract without the substance. 7 Wallace, 215 ; 16 Wallace, 431 ; 5 Hill, (N. Y.) 158, etc.</p> <p>There must be some actual or threatened exercise of power possessed, or supposed to be possessed by the party exacting or receiving the payment, over the person or property of the party making the payment, from which the latter has no other moans of immediate relief than by advancing the money. 45 Am. Dec. 156, note; 95 IT. S. 210; 2 Dillon on Mun. Corp. § 943.</p> <p>It suffices if the payment is caused on the one part by an ■Illegal demand and made on the other part reluctantly and in -consequence of that illegality, and without being able to regain ¡possession of his property, except by submitting to this payment. .10 Howard, (IT. S.) 242; 45 Am. Dec. 156, note.</p> <p>Acts of menace constitute a threat as much as if they were «embodied in words.</p> <p>An action for money had and received lies for money got through imposition, extortion, or undue advantage taken of the jparty’s situation. 7 Maine, 138.</p> <p>cited: 'Whitefield v. Longfellow, 13 Maine, 146; Eddy v. Herrin, 17 Maine, 338 ; Soule v. Bonney, 37 Maine, 128 ; Fellows v. Fayette, 39 Maine, 559; Harmon v. Harmon, 61 Maine, 227.</p>

<p> Practice. Affirmation. Jurat. Pishing in Winnegance Greek. Spec. Stat. 1885, c. 483. Stat. 1885, a. 262. Pleading. </p> <p>The magistrate’s certificate that the complainant in a criminal prosecution affirmed to the truth of the complaint, conclusively implies that he was conscientiously scrupulous oftakinganoath, andhewas, therefore, permitted to affirm, and that he affirmed in the form prescribed by the statute.</p> <p>To convict a person for violating any of the provisions of Priv. and Spec. L. of 1885, c. 463, enacted for the protection of bass in Winnegance Creek, it need not be shown that the notices described in Pub. L. of 1885, c. 262, were posted, the latter provision having no application to the former.</p> <p>A complaint against one for using nets without the prescribed attachments thereto, in Winnegance Creek, need not allege the owner’s name.</p> <p>A -complaint under Priv. and Spec. L. of 1885, c. 463, sufficiently setting out .an unlawful using of the kind of net forbidden by § 3, and also alleging the illegal killing of bass under § 5, is not bad for duplicity, the latter allegation being in the nature of an aggravation of the former offence. And when no venue is laid for the latter it may be rejected as surplusage.</p> <p>A complaint properly setting out the offence of using a net of the kind forbidden by § 3, is valid, although it alleges the forfeiture in the future ¡tense.</p>

<p>On exceptions.</p> <p>Complaint, on appeal, from the municipal court of the city of Bath, by respondents, in which they are charged with violating the provision of section 2, chapter 463, of the Private and Special Laws of 1885, entitled, "An Act for the protection of Bass in Winnegance Creek.”</p> <p>called attention to the decisions of the court in State v. Bartlett, 55 Maine, 220; State v. Lawrence, 57 Maine, 574; State v. Cleaves, 59 Maine, 298.</p> <p>I do not overlook the fact that these cases were decided prior to the act, c. 92, laws of 1879, which adds this clause, "and the fact that he (the accused) does not testify in his own behalf, shall not be taken as evidence of his guilt.” The jury were so instructed.</p> <p>Of course it was a fact in the case to which the jury could not close their eyes, neither does the law require them to. The statute of Massachusetts says that " his (defendant’s) neglect or refusal to testify shall not create any presumption against him.” It was under this provision the cases of Com. v. Harlow, 110 Mass. 411, and Oom. v. Scott, 123 Mass. 239, were decided, which would not apply to our law.</p>

On report, on the evidence introduced in behalf of the plaintiffs, with the stipulation that if the plaintiffs had made out a case, the action was to stand for trial. Assumpsit on an account annexed. The opinion states the material facts. The plaintiff, Barton, who kept the books and owned the claim, is dead. It is proved by Libby, his former partner, that the books were kept by Barton, that these entries are all in his hand-writing, and that they are original entries.

ON EXCEPTIONS. This was an indictment in which it is set forth in the first and third counts that the respondent, a dwelling house,” in the night time, feloniously, wilfully and maliciously did set fire to, and the said dwelling house,” by the setting of such fire in the night time, did feloniously, wilfully and maliciously burn and consume,” and in the second and fourth counts it is set forth that the respondent, a certain building called a barn,” in the night time,…

Bill in equity reported by the presiding justice, with the consent of the parties, upon bill, answer and demurrer. The plaintiffs are trustees under the will of Louisa J. Bucknam, and bring the bill praying that the land devised to Hiram Coffin under the fifth item of her will, be sold, and out of the proceeds the unpaid installments due the church be paid, and from the balance a sum be placed at interest sufficient to produce fifty dollars a year. Fifth.

<p>On EXCEPTIONS.</p> <p>An action on the case for assault and battery by a pupil against a scliool-master.</p> <p>cited : Com. v. Randall, 4 Gray, 36; 1 Hawk. c. 60, § 23 ; 1 Bussell, Crimes, (7 Am. ed.) 755; Bac. Abr. "Assault and battery”; Hathaway v. Rice, 19 Yt. 102; Lander v. Reaver, 32 Yt. 114; Danenhoffer v. State, 35 Am. Eep. 216 (69 Ind.) ;.Elkinsv. B. <& A. R. It. Co. 115 Mass. 190; Lynch v. Smith, 104 Mass. 52; Brown v. E. & N. A. Ry Co.'58 Maine, 384; W. & G. T. R. R. Co. v. Gladmon, 15 Wall. 401; Wourse v. Barker, 138 Mass. 307.</p> <p>The teacher can inflict corporal punishment, and when in his judgment this remedy is inadequate, lie can suspend. He alone is to judge which remedy to adopt. State v. Burton, 45 Wis. 150; S. C. 30 Am. Beport, 709.</p> <p>"Within the sphere of bis authority, the master is the judge when correction is required.” State v. Pendergrass, 2 Doavereux & Battle, 365 (N. C.) ; S. C. 31 Amr. Dec. 416.</p> <p>Courts are very cautious about interfering with the honest exercise of the discretionary powers of school officers. Hodgkins v. Rockport, 105 Mass. 475.</p> <p>The presumption of law is that the degree of punishment is in accordance with the exercise of an honest judgment, and that the punishment is without malice and not excessive. Anderson v. State, 3 Head. 445 (Tenn.) ; Lander v. Beaver, 32 Yt. 114; State v. Mizner, 50 Iowa, 152.</p> <p>The teacher is liable only when the punishment is of a nature to cause a permanent injury to the body or health, or that it was inflicted through malicious motives. This rule was announced in State v. Pendergrass, before cited, and has been approved in the following cases : State v. Burton, supra-, State v. Stalcap, 2 Iredel, 50; Slate v. Black, Winst. 266; State v. Rhodes, Phil. 453; State v. Alfred, 68 N. C. 322; Com. v. Seed, 5 Pa. L. J. 78 ; Peeves on Doms. Relations, 228.</p> <p>The punishment should not be of a nature to cause permanent injury, or be inflicted through malice, and the teacher should exercise reasonable judgment and discretion, and not use unreasonable and disproportionate violence or force, either in mode or degree of correction, considering the nature of the offence, the age, sex and power of endurance of the offender. This rule was announced in Com. v. Randall, 4 Gray, 36, and approved in Lander v. Sea,ver, 32 Yt. 114; Anderson v. State, supra; State v. Mizner, supra; Cooper v. McJunkin, 4 Ind. 291; Danenhoffer v. State, 69 Ind. 295.</p> <p>In Hathaway v. Rice, 19 Yt. 102; again, Lander v. Seavey, 32 Yt. 114, a civil action for damages where a boy was punished for calling his teacher names outside the school, the court say, " A school-master has the right to inflict reasonable corporal punishment.”</p> <p>The right to punish being a legal right, the inflicting of punishment a legal act, no action can be maintained for injuries from a casualty purely accidental arising therefrom. Brown v. Kendall, 6 Cush. 292.</p> <p>A teacher has the right to use sufficient force to compel obedience to his authority and lawful commands, rules and regulations. If he is not capable of compelling obedience himself, he has right to call others to his assistance. Stevens v. Bassett, 27 Maine, 266.</p>

<p>ON REPORT.</p> <p>The opinion states the case.</p> <p>cited, upon the question of amendment:</p> <p>Howard v. Turner, 6 Maine, 106; Glidden v. Philbrick, 56 Maine, 222; Gilman v. Stetson, 16 Maine, 124; Spear v. Sturdivant, 14 Maine, 268; Gom. v. Parker, 2 Pick. 550; Adams v. Robinson, 1 Pick. 461; Childs v. Barrows, 9 Met. 413; Sharp v. Kennedy, 50 Ga. 208; Rutherford v. Crawford, 53 Ga. 138 ; Wilton Mifg Co. v. Butler, 34 Maine, 431; Fairfield v. Paine, 23 Maine, 508 ; Cleavinger v. Reimar, 3 Watts & S. 486 ; Hachinbury v. Carlisle, 5 Watts & S. 348 ; Galbraith v. Rider, 8 Watts, 81; Henry v. Raimar, 25 Pa. St.- 354; Whittier v. Varney, 10 N. H. 291; Knight v. Taylor, 67 Maine, 594; Thatcher v. Miller, 13 Mass. 270. Upon the question of disseizin by plaintiff:</p> <p>Props. Kennebec Purchase v. Springer, 4 Mass. 410 ; Props. Kennebec Pur. v. Laboree, 2 Maine, 275 ; Robison v. Swett, 3 Maine, 316; Gore v. Brazier, 3 Mass, 523; Bartlett v. Perkins, 13 Maine, 87; Bryant v. Tucker, 19 Maine, 383; Nickerson v. Whittier, 20 Maine, 223 ; Nason v. Grant, 21 Maine, 160; Allen v. 'Thayer, 17 Mass. 299; Bigeloio v. Jones, 10 Pick. 164; Mifen v. fTa/ü, 6 Gray, 552; Boothby v. Hathaway, 20 Maine, 251 ; Iiurd v. Cushing, 7 Pick. 169 ; Wooámcm v. Bodfish, 25 Maine, 317; Clark v. Pratt, 55 Maine, 546.</p> <p>Upon the question of effect of deed to plaintiff's attorney: Cleavinger v. Reimar, 3 Watts & S. 486; Hackenbury v. Carlise, 5 Watts & S. 348 ; Galbraith v. Rider, 8 Watts, 81 ; Parker v. Carter, 4 Mundf. 273 ; Hister v. Davis, 3 Yeates. 1; Holt v. Tfofe, 1 Ch. 191; Whalley v. Whatley, 1 Yern. 484; Saund. Uses, 240 ; VanHorne v. Fonda, 5 Johns. Ch. 407 ; Henry v. Raiman, 25 Pa. St. 354.</p> <p>Upon the question of notice to subsequent, purchasers: Naies v. Norcross, 14 Pick. 224; 2 Wash. K. P. 480 ; Fairbanks v. Williamson,! Maine, 100; Pike v. Galvin, 29 Maine, 183; Somes v. Skinner, 3 Pick. 52; White v. Patten, 24 Pick. 326.</p> <p>The writ contained three counts : two upon promissory notes, ■and one, a general money count, without any specification of the claim to be proven under it. This was fatal to the attachment. .11. S., chap. 344, 1838. Phillips v. Pearson, 55 Maine, 570; ■Shaw v. Nickerson, 60 Maine, 249; Saco v. Hoplcinion 29 -Maine, 268 ; Drew v. Alfred Bank, 55 Maine, 451.</p> <p>In this last case, DaNForth, J., says : "It is well settled that am attachment on such writ is void.”</p> <p>Benjamin Soule, therefore, had a perfect legal right to convey to the Heaths, and the title accordingly was, at the time of the ■levy, in the Heaths. Saco v. Hopkinton, supra; Lumbert v. ■Hill, 41 Maine, 483; Rollins v: Mooers, 25 Maine, 199; -JEgery v. Johnson, 70 Maine, 261.</p> <p>If the attachment was void, the Heaths and Jerome Abbee ¡had a prior and valid title to lot 56, at the time of the supposed levy, and the plaintiff had neither title nor possession of said ■lot 56, at the time of the alleged trespass. Grant v. Ward, 64 .Maine. 240; Johnson v. Leonards, 68 Maine, 239.</p> <p>Undoubtedly, the levy, had it been regular, would have ■operated as a disseizin of Soule, the judgment debtor’s title, whatever it might have been; but it could in no possible way ¡have operated to disseize the title of the Heaths and of Jerome Abbee; at all events, not without an actual entry for the purpose. Bolt v. Bernell, 9 Mass. 96 ; Gore v. Brazier, 3 .Mass. 539; Larcomv. Qheever, 16 Pick. 262; 11 Mass. 163.</p> <p>The plaintiff certainly gained no title by the levy, 'and none by disseizin. Nichols v. Todd, 2 Gray, 568 ; Slater et al. 'v. Jepherson, 6 Cush. 131-2.</p> <p>The Heath title was not impeached at the trial. In Grant v. Ward, 64 Maine,.240, Mr. Justice WaltoN : — "Fraud is never, presumed. In the absence of proof to the contrary, the presumption is that it does not exist.” A little further on he says : "If effect be given to this deed, it of course defeats the plaintiff’s title. No evidence is offered to impeach it, and no reason is assigned why it should not be held to be a valid' deed. It may have been made to defraud creditors; but there is no evidence of an}' such fraudulent purpose.” Johnson v. Leonards, supra. Glidden v. Philbrick, 56 Maine, 226.</p> <p>The case of Lowell v. Daniels, 2 Gray, 161, is directly in point. Suppose the return of the levy had been signed by the officer who made it, and had heen duly recorded, and suppose the attachment in March, 1855, was a valid attachment, instead of being void; then the plaintiff would have had title at the time of the alleged trespass to two-thirds of lot 56; hut the defendants would also have had title, at the time of the alleged trespass, to the Jerome Abbee one-third part of said lot 56. Therefore this action of trespass qua re clausum cannot be sustained. 1 Chitty PI. 180 ; { Wash. E. P. 568 ; Kenniston v. Leighton, 43 N. H., 312; Ordione v. Lyford 9 N. 1Í. 513; 33 Verm. 192.</p> <p>This last case is thoroughly considered and able, and Sitto'way v. jBroum, 12 Allen, 37, is a case wherein the facts distinguish it from the Vermont and blew Hampshire cases. Put see Hastings v. Hastings, 110 Mass. 285, a case directly in point and fully sustaining this position ; also 4 Kent, 407, 11 ed. ; 4 Pick. 127 ; 2 Ibid. 444; 1 Addison, Torts, 423 — notes.</p>

<p>Evidence. B. 8-, c. 82, § 98. Contract unreasonable. Equity.</p> <p>Where the defendant in a suit in equity is made a party as heir of the plaintiff’s deceased wife, the plaintiff is thereby rendered incompetent as a witness by the provisions ofR. S., c. 82, § 98.</p> <p>Equity will not decree specific performance of an agreement wlien tlie evidence is conflicting and the agreement itself is unreasonable.</p>

On report by the presiding judge, with the consent of the parties, upon bill and demurrer. Section 82 of the insolvent act provides that the assignee shall give a bond, but no remedy is provided for the creditors on the bond. Section 39 of the act, provides that the register shall give not less than five days notice of all dividends about to be declared to all creditors, named in the schedule of debts. No such notice has been given.

<p>On report.</p> <p>An action of the case by husband and wife for damages for personal injuries received by the wife. The facts as found by the court are sufficiently stated in the opinion.</p> <p>The principle applicable to' this point is the same as decided in Langridge v. Levy, 2 M. & W. 519 Ex. Rep. or more commonly known as the gun case.</p> <p>In Langridge v. Levy, the contract was made with the father of the plaintiff, on behalf of himself and his family. There wets nothing to show that the defendant was aware even of the existence of the particular son injured.</p> <p>In an American case, Thomas v. Winchester, 6 N. Y. 397, the case is carried further.</p> <p>In support of the privity of parties, the plaintiff also cites Addison on Torts, vol. 1, p. 49, also vol. 2, pp. 398, 404, 451, and all the cases there cited.</p> <p>In Ohayman v. Pickersgill, 2 Wils. 145, Wilmot, C. J., says : " This action is for a tort; torts are infinitely various, not limited or confined, for there is nothing in nature but may be an instrument of mischief.” If she can not sue, there is a wrong without a remedy.</p>

ON EXCEPTIONS. The opinion states the case. The following is an abstract from the petition to the commissioners : The undersigned, being more than one hundred citizens of said county of Cumberland, hereby respectfully represent to your Honors that in their judgment, the public convenience and necessity require the location of a public highway in the city of Portland, commencing at a point in the centre line of Commercial street, near where a line about four feet westerly…

<p>ON EXCEPTIONS.</p> <p>Assumpsit on a promissory note dated May 14, 1883, for the sum of twelve dollars, payable in six months, with interest annually. The writ was dated March 23, 1886. The plaintiff resided in Oxford county, and the defendant in Piscataquis county.</p> <p>The defendant filed a motion to dismiss, and the exceptions were to the ruling of the court in overruling that motion.</p> <p>cited: Merrill v. Ourtis, 57 Maine, 152; 61 Maine, 22; 6 Maine, 325 ; 8 Allen, 337 ; 3 Allen, 532; 14 Gray, 521 ; 8 Gray, 373; 12 Gray, 139; 2 Greenl. Ev. 260; 16 Mass. 74; 10 Mass. 251; 11 Maine, 149 ; 28 Maine, 207 ; 47 Maine, 460.</p> <p>Trial justices have exclusive jurisdiction where the debt or damages are less than twenty dollars. R. S., c. 83, § 3.</p> <p>In actions of tort the ad damnum might determine the question prima facie, as that would, or might be the only means of determining the amount of damages claimed, the damages being unliquidated, but in actions of assumpsit, on a contract, the declaration must determine the amount claimed, and that would be the amount of the debt or damage demanded.</p> <p>In Ridlon v. Emery, 6 Greenl. 261, the court held that the common pleas court had jurisdiction where property was of less value than twenty dollars, because the statute did not give exclusive jurisdiction to justices of the peace, but only concurrent jurisdiction. In Hapgood v. Doherty, 8 Gray, 373, the court held that the one hundred dollar ad damnum was the debt or damage demanded, but it was a case where the account annnexed was one hundred and twenty-three dollar’s.</p> <p>In the cases in the Mass. Reports, where the court has held that the debt or damage demanded means the ad damnum, the decisions are based upon a different statute from ours.</p>

ON REPORT. If, upon investigation and report, the applicant is admitted, that is the end of it in the absence of actual fraud or concealment which will never be presumed, and of which there is no evidence in this case. Illinois Masons’ Society v. Winthrop, 4 Law & Eq. Reporter, 554 (Supreme Court of Ill. Oct. 9, 1877). The defendant corporation was not formed until May 17, 1877, having previously been simply a voluntary association.

<p>ON EXCEPTIONS.</p> <p>The defendants, Reed A. Smith and Eugene H. Smith, were tried jointly and found guilty of the following counts in the indictment :</p> <p>"And the jurors aforesaid, upon their oath aforesaid, do further present that the said David S. Libby, Reed A. Smith and Eugene H. Smith, at a Gore north of numbers two and three in range six, in said county of Franklin, on the twenty-fifth day of February, in the year of our Lord one thousand eight hundred and eighty-five, with force and arms did kill five deer, by then and there shooting said deer with a rifle, said rifle being then and there loaded with powder and one leaden bullet, against the peace of said state, and contrary to the form of the statute in such case made and provided.</p> <p>" And the jurors aforesaid, upon their oath aforesaid, do further present that the said David S. Libby, Reed A. Smith and Eugene H. Smith, at a Gore north of townships numbered two and three, in range six, in said county of Franklin, on the fifth day of March, in the year of our Lord one thousand eight hundred and eighty-five, with force and arms did hunt and kill seven deer, against the peace of said state, and contrary to the form of the statute in such case made and provided.</p> <p>" And Ihe jurors aforesaid, upon their oath aforesaid, do •further present that the said David S. Libby, Reed A. Smith and Eugene H. Smith, at a Gore north of townships numbered two and three, in range six, in said county of Franklin, on the twentieth day of March, in the year of our Lord one thousand eight hundred and eighty-five, with force and arms did hunt and kill five deer, against the peace of said state, and contrary to the form of the statute in such case made and provided.”</p> <p>They moved in arrest of judgment, for the following reasons :</p> <p>"1st. The indictment does not allege that any offence was committed by these defendants in Franklin county or state of Maine.</p> <p>" 2nd. No offence is alleged against these defendants in the indictment.</p> <p>"3rd. No valid judgment can be rendered on the verdict.</p> <p>" 4th. It does’not appear that said prosecution was commenced by the warden or his deputy, of any county where the deer were alleged to be killed, nor by any other person, in any county in which the offence is alleged to have been committed, or the accused then resided or now resides.</p> <p>5th. No part of the forfeiture under said chapter goes to the state, or county, although the county is subjected to the expense of this prosecution.</p> <p>" 6th. The indictment does not show who is entitled to the forfeiture, if the defendants are convicted.”</p> <p>The motion was overruled and the defendants alleged exceptions.</p> <p>cited upon the question decided in the opinion: 26 Maine, 263 ; 61 Maine, 178 ; 39 Maine, 78 ; 39 Maine, 291.</p> <p>"Gore” may mean blood (which is the first definition given by Webster), it may mean a triangular piece of cloth, or it may mean a triangular piece of land. But nothing is to bo taken by intendment in criminal pleadings.</p> <p>In State v. Patrick, 79 N. C. 655 (28 Am. Rep. 340), indictment for stealing one pound of meat, the court approves of ui Wisconsin decision, declaring the term meat to be too vague ■and uncertain, because the term " not only applies to the flesh of • all animals used for food, but in a general sense to all kinds of provisions.</p> <p>The "Gore” is not alleged to be in Franklin county, but mumbers two and three are alleged to be in said county.</p> <p>All the facts and circumstances constituting the offence must 'be specifically set forth, and if any fact or circumstance which is ■a necessaiy ingredient in an offence be omitted in an indictment, the indictment is vitiated by such omission, and the objection may be availed of by the defendant on a motion in arrest of .judgment. Oom. v. Moore, 11 Cush. 600 : 1 Chitty’s Grim. Law, 227 ; /State v. Godfrey, 24 Maine, 232.</p>

ON exceptions. Libel for divorce filed in the clerk’s office December 3, 1885. It alleged that the libelleo on the first day of December, 1882, deserted the bed of your libellant and refused wholly to cohabit with your libellant, as man and wife and to occupy the same bed with him — but on said day left his bed, and on the 21st January, 1883, wholly deserted your libellant’s home,” and had continued such desertion ever since.

On report. The opinion states the case. A condition does not defeat the estate, although broken, until entry by the grantor or his heirs, and then he is in as of his former estate. He must make an actual entry, for the breach of the condition, otherwise no forfeiture is incurred, and the title remains unimpaired in the grantee. Guild v. Richards, 16 Gray, 318.

ON motion to set aside the verdict and exceptions. The exceptions, relied upon in argument, were : (1.) To the ruling of the presiding justice in excluding the following question to Dr. George W. Martin, a physician, called by the defendant.

<p>On report of the presiding justice to be heard on bill, answer-arid proof.</p> <p>The plaintiffs were the owners of three shares in the Odd: Fellows’ Hall Association, holding certificates like the following :</p> <p>No. 10. Odd Fellows’Hall Association. One share.</p> <p>This certifies that A. E. Carter, of Belfast, is proprietor of one share of the-Capital Stock of the Odd Fellows’ Hall Association of Belfast, on which has. been paid tbe sum of twenty dollars. These shares are transferable by assignment on the back hereof, to Members in good standing of the Independent Order of Odd Fellows only, the same being delivered to the Secretary and entered upon the Records of the Corporation.</p> <p>These Shares may be redeemed by Belfast Lodge No. 41, I. O. 0. F., at its option, at par value with Interest at 6 per cent, per annum from date hereon.</p> <p>In Witness Whereof, this certificate is signed by the President and Secretary of said Association and countersigned by the proper Officers of the Lodge, at Belfast, this twenty-sixth day of April, A. D. 1876.</p> <p>(A true copy.) F. A. Follett, N. G. William W. Castle, President.</p> <p>R. G. Dyer, Rec. Sec’y. Attest: R. G. Dyer, Sec’y.</p> <p>Capital Stock, $2000. 100 Shares, $20.00 each.</p> <p>Transferred to E. and L. L. Robbins. (Signed) A. R. Carter.</p> <p>This court has the same power in equity to adjust the interests of part owners of personal property, that it has to adjust the interests of part owners in real estate. R. S., c. 77, § 6, Item YI; Story’s Eq. Jur. § 466.</p> <p>In a recent case in New Hampshire, the court in their opinion say : " Whatever is capable of being divided may be the subject of partition in equity, and the inconvenience or difficulty of making partition is no objection. Moreover, for the sake of convenience, in equity, a recompense may be made by a sum of money to one of the parties, so as to prevent injustice or unavoidable inequality; or the court may order a sale of the subject matter, and a division among the several owners, according to their respective titles, as its powers are adequate to a full compensatory adjustment.” Allard v. Oarleton, 4 Eastern Rep. 759 ; see Story’s Eq. Jur. § § 654, 656.</p> <p>Had the property in controversy belonged to Belfast Lodge at ■the time its charter was taken away, the Grand Lodge would 'not thereby have become the owner of said property, but it would still have remained the property of the members of said lodge. District Grand Lodge Lío. 5 v. Independent Order B’nia B’rith Jedjah Lodge No. 7, (Md. case,) 4 Eastern Rep. 657.</p>

On motion to set aside the verdict. Assumpsit for services and expenses as town agent. Was the town of Levant, through its agents, justified in appearing with witnesses to show cause why the prayer of the petitioners should not be granted, and to pay for the town money necessary for the production of such Avitn esses, and the defense of the suit Kenduskeag v. Levant?

<p> Hail roads. Grossing. Negligence. New trial. </p> <p>When tlie evidence is conflicting on the point upon which the caso turned, the verdict will not he set aside unless it is clearly against the weight of evidence.</p> <p>It is the duty of those in charge of a train of cars to keep a sharp lookout, in order to avoid collisions with teams at crossings.</p>

Ont report from superior court. An action for damages for breach of a contract under the rules of the Eastern New England Association of Base Ball Clubs, by which the plaintiff engaged to manage base ball for the defendant for six months, commencing April 15, 1885, for seven hundred and eighty dollars. The eighth clause of the contract was as follows : Eighth.

<p>On report.</p> <p>This is a writ of entry dated November 19th, 1882, to recover a lot of land containing five rods square, situated in School District No. 19. in the. town of Harpswell.</p> <p>It was agreed by the parties that at the time of the commencement of the plaintiff’s action, he had a legal title to the lot in question; that prior to the commencement of said action, the defendant school district located a school-house lot on said premises, and erected a school-house thereon.</p> <p>On the eighth day of April, 1885, the plaintiff moved into said school-house, with his family, and established it as his dwelling house, where they have resided ever since.</p> <p>At the October term, 1885, the defendants filed the following plea:</p> <p>" And now said defendants at this day, to wit, on the second day of said term, come and say that the said demandant ought not to have or further maintain his said action against them, because they say that previous to the commencement of this action, the said defendants designated, located, and laid out a school-house lot upon the real estate described in said writ and declaration, upon which to erect a school-house for said district, and thercafterwards erected a school-house thereon; that by mistake or omission in the proceedings relating thereto, there was a failure to comply with the law relative to the laying out of a school-house lot and appraising the same, whereby such location was rendered invalid ; that after the commencement of this action, and since the last continuance thereof, that is to say after the term of court begun and holden on the first Tuesday of April, A. D. 1885, from which term said cause was last continued, to wit, on the second day thereof, and before the present term, written application was made by said school district to the selectmen of said town, to wit, on the thirteenth day of April, A. D. 1885, to have the lot so designated and described re-appraised by them for a school-house lot; that such proceedings were had thereon ; that thercafterwards, to wit, on the twenty-fourth day of April, A. D. 1885, said selectmen re-appraised said lot as set out, and affixed a fair value thereon, exclusive of improvements made by said district, and thereafter-wards, to wit, on said twenty-fourth day of April, notified said district and the demandant of the sum at which said lot had been appraised, which said sum was thereafterwards, to wit, on the eighth day of May, 1885, tendered by the district to said demandant in payment of said appraisal, whereby said district and the inhabitants thereof, became andaré entitled to the lawful and exclusive possession and occupancy of said real estate, so set out and appraised for a school-house lot; and the same became vested in them for said purpose, and the demandant became and is wholly divested of all right to the seizin and possession of same, and this the said defendants are ready to verify.</p> <p>" Wherefore they pray judgment if the said plaintiff ought further to have or maintain his said action against them.”</p> <p>At the trial, after the admission of the plaintiff's title at the commencement of the action, the defendants offered in evidence the records of the defendants’ school district, for the purpose of showing a re-appraisal of the lot as set forth in their plea.</p> <p>Evidence was also introduced upon the question of tender.</p> <p>The action was then reported by the consent of the parties" for the full court to render such judgment as the law and evidence required.</p> <p>An examination of the authorities will satisfy the court that there is no principle better settled than this: That in a real action, the defendant can not give in evidence an outstanding title acquired by him from a third person after the date of the writ.</p> <p>The action can be maintained if the demandant has a right of entry at the time of bringing the suit. It. S., c. 104, § 5; see § § 4 and 8.</p> <p>Justice Wilde, in giving the opinion of the court in Andrews v. Hooper, 13 Mass. 471, says: "The tenant can not be permitted to set up a title under a deed made since the commencement of the action. The evidence of a title thus acquired has been, I believe, uniformly rejected in our courts.</p> <p>Lord EldeNBORough says, in Le Bret v. Papillon, 4 East. 502 : " It may be considered as a settled rule of pleading that no matter of defense arising after action brought, can properly be pleaded in bar of the action generally.”</p> <p>The court in this state, in Parlin v. Haynes, 5 Maine, 178, quote Andrews v. Hooper, and squarely endorse the doctrine laid down in that case.</p> <p>In a subsequent case, Clark v. Pratt, 55 Maine, 546, the court say : " If the tenant in a writ of entry, after action brought, purchase of a third person an outstanding title derived from the demandant himself, this can not be pleaded in bar of the action.” And in this case, the case of Parlin v. Haynes is referred, to and reaffirmed.</p> <p>In another case, Chick v. Hollins, 44 Maine, 104, the court say, (it being' a complaint for flowage) : "The case as now presented, is in the nature of a real action. The issue is touching the title to the premises. It is well established that a title in such actions acquired after the commencement of the suit, can not be allowed to be introduced to defeat the claim of the demandant.”</p> <p>In Hall v. Bell, 6 Met. 433, the court say: "To allow a tenant who holds without right at the time of the commencement of a suit, to avoid liability to pay costs, and acquire the right to tax costs, as the prevailing party, by the acquisition of an independent title ponding the litigation, might work great injustice.”</p> <p>In Tainter v. Hemenway, 7 Cush. 573, the devisee under a will brought a writ to recover the land against one who had no title. It was held that a sale and conveyance duly made by the trustee to the tenant, was no bar to the demandant’s recovery.</p> <p>In Curtis v. Francis, 9 Cush. 427, the court say: "If the plaintiff has a good cause of action, when his action is brought the defendant can not defeat it by showing an outstanding title in a stranger, or by procuring a new title to himself after action brought.”</p> <p>Hooper v. Bridgewater, 102 Mass. 512, is a case exactly in point.</p> <p>It is admitted that the original location of the school-house lot was illegal and void, for the court has so decided. Leavitt v. Eastman and al. 77 Maine, 117.</p> <p>The proceedings must be in strict accordance with the provisions of the statute by virtue of which they were had. Leavitt v. Eastman, 77 Maine, 117; Norton v. Perry and al. Co Maine, 183.</p> <p>Where a school-house lot has been legally designated, and the •owner thereof asks an unreasonable price, or refuses to sell, the municipal officers may lay out a lot and appraise the damages, and on payment or tender of damages . . it may take such lot to be held for the purposes of a school-house lot. Here, a tender is required before a lot can be "taken.” It. 3., c. 11, •§ 57 ; Storer v. Hobbs, 52 Maine, 144.</p> <p>Under the provisions of § § 59, 60, 61 and 62, of c. 11, It. S., no tender is required. The sum fixed as the value of such lot is to be assessed, collected and paid over, as provided in § 48.</p> <p>This law of 1873, which authorizes school districts to " appraise ” private property to which such district has no lawful title, and which of itself give no title to such district, is a clear infringement of the vested rights of the owner. It provides that in the appraisal of a school lot, all buildings and improvements, put upon the lot by the district, are to be excluded, and further provides that such improvements enure to the benefit of the district.</p> <p>It has long been settled law that if a building be erected without the assent and agreement of the land owner, it becomes at once a part of the realty, and is the property of the owner of the freehold. First Parish v. Jones, 8 Cush. 184; Poor v. Oahman, 104 Mass. 309; Webster v. Potter, 105 Mass. 414; Howard v. Fessenden, 14 Allen, 128; Oahman v. Dorchester Ins. Qo. 98 Mass. 57 ; Madigan v. McCarthy, 108 Mass. 376.</p> <p>cited upon the question of pleading: Rowell v. Hayden, 40 Maine, 582; 1 Chit. PI. 657-8; 6 Dane’s Abr. 30; 5 Bacon’s Abr. 477-8 ; Yeaton v. Lynn, 5 Pet. 230; Tyler, Ejectment, 468-9-70; Btilphen v. Btilphen, 58 Maine, 508; Tufts v. Mames, 51 Maine, 393; Morgan v. Dyer, 9 Johns. 255; Le Bret v. Pap ilion, 4 East. 502 ; Qovell v. Weston, 20 Johns. 414; Brown v. Brown, 48 Am. Dec. 53; Boyd v. Weeks, 43 Am. Dec. 749; Merchants' Bank v. Moore, 2 Johns. 294.</p>

ON report from superior court. This was an action of debt on bond, and was submitted on :report to the law court on the following agreed statement of facts : The bond in suit is dated November 3, 1884, being in the 'usual form of a poor debtor’s bond, given under arrest on •execution. The writ is dated June 10, 1885, and was entered at the •September term, 1885. Ad damnum, three hundred dollars.