Volume 79 — Maine Reports

On exceptions. Complaint for killing a deer out of season. The exceptions were to the ruling of the court in overruling defendant’s motion in arrest of judgment; also in excluding as evidence the following portion of the deposition of George M. Harmon, taken in behalf of the defendant: At this time the steamer was just starting from the landing at the outlet of the lake, upon her trip to Rangeley.

On exceptions. The case is stated in the opinion. The presiding justice ruled that the plaintiffs had a lien. cited: Hayford v. Everett, 68 Maine, 505; Golton v. King, 2 Allen 317; /Sands v. Sands, 74 Maine, 239 ; R. S., c. 91, § 38. The first point to be noticed is that the amendment is made long after default. The defendant is not in court. The plaintiff had taken his default without amendment.

<p>On report.</p> <p>Scire facias against bail.</p> <p>The following is a copy of the certificate of the oath referred to in the last clause of the opinion.</p> <p>"State of Maine. Penobscot, ss. May 5th, 1882. Then personally appeared S. P. Crosby, attorney to the within named creditor, and made oath that he has reason to believe and does believe that the within named debtor is about to depart and reside beyond the limits of the State, and take with him property or means of his own exceeding the amount required for his immediate support, and that the demand sued for, or the principal part thereof, amounting to at least ten dollars, is due to the within named creditor. Josiah Crosby, justice of the peace.”</p> <p>cited, upon the question of the sufficiency of the certificate of oath: Roop v. Johnson, 23 Maine, 335 ; Prentiss v. Kelley, 41 Maine, 436; Knowlton v. Plantation JVo. 4, 14 Maine, 20; Penobscot Boom Gorp. v. Lamson, 16 Maine, 224; Marston v. Savage, 38 Maine 128 ; Adams v. Macfarlane, 65 Maine, 143.</p> <p>Bail can not deny liability of principal: Stever v. Sornberger, 24 Wend. 274; Hall v. Young, 3 Pick. 80; Springfield Oard Mf’g Go. v. West, 1 Cush, 388 ; 1 Chit. PI. 486, 512-13 ; 2 Chit. PI. 311; Oom. v. Brickett, 8 Pick. 140.</p> <p>The certificate of the oath must show every statute requirement complied with. Proctor v. Lothrop, 68 Maine, 256.</p> <p>The certificate in this case does not meet the statute requirements. B. S., 1871, c. 113, § 2.</p> <p>Gaswell v. Fuller, 77 Maine, 105, virtually sustains my position. It proceeds upon the ground that the creditor is liable to the debtor for causing his arrest by an oath in any material respects untrue.</p>

On exceptions. The opinion states the case and material facts. The will must be attested by three credible witnesses not beneficially interested under said will.” R. S., 1871, c. 74, § 1. Who are credible” witnesses? Those competent” by the rules of the common law. Interested witnesses are, by that law, incompetent. The statute expressly leaves the law regulating the execution of wills to be governed by the provisions of the.common law.

On exceptions. A real action. The plaintiffs were described in the writ as-, residents of Lynn, Massachusetts. On the first day of returni term, the defendants filed a motion to abate the writ, because it was not indorsed before entry in court by a citizen of this state, as required by statute.

<p> Search and seizure. Prior conviction. Pleadings. </p> <p>.An averment of prior conviction in search and seizure process, that “defendant has been before convicted ... of unlawfully keeping and depositing in .this State . . . intoxicating liquors, with intent that the same should be .sold in this State in violation of law ” is sufficient, when accompanied with .particular averments of the time and place and court in which the conviction ■was had.</p>

<p>Indictment. Lobster law. Stat. 1885, c. 275, § 21.</p> <p>An indictment tliat avers that the defendant “did have in Ms possession” certain lobsters, without averring that he did not liberate them alive, charges no offense, and is bad on demurrer.</p>

On exceptions to the ruling of the court in sustaining a demurrer to the bill. Bill in equity by two creditors of the insolvent estate of Lot Libby, deceased, against Wm. K. Neal, administrator on the estate, and Charles E. Libby, to whom it was alleged the deceased fraudulently conveyed in his lifetime certain real estate.

On report. Writ of entry. The facts are stated in the opinion. The note of February 1, 1875, was payment of all demands Paine held against William Quint and of all other indebtedness to Paine from either of the Quints, because it is negotiable and therefore presumed to be in payment of what it was given for. 2 Parsons on Notes and Bills, 150, note a. Parsons on Contracts, 8th ed. vol. 2, p. 776. This is the law in Massachusetts, Maine and Vermont.

On report. The opiuion states the case. The following is the petition and the final action of the mayor and alderman thereon.

<p>On report.</p> <p>The opinion states the case.</p> <p>" A dwelling house is the apartment, building, or cluster of buildings, in which a man, with his family, resides.” Bishop on Statutory Crimes, § 278.</p> <p>" If one part of a building is used for abode, it gives the character of dwelling house to every part to which there is an internal communication.” Id. § 280.</p> <p>" If there is no internal communication, the parts are to be considered as though they were distinct buildings.” Id. § § 280, 285.-</p> <p>In State v. Spencer, 38 Maine, 30, the warrant, like the complaint, charges " that spirituous and intoxicating liquors are kept and deposited in a certain building, part of which is used as a store, and part for a dwelling house.” The court say on page 32, "It does not appear that a shop or other place is kept for the sale of liquors in that part of the building used as a dwelling-house, without which allegation in the complaint, no warrant could be issued to search the dwelling house.”</p> <p>See also McQlinchy v. Barrows, 41 Maine, 74, where it is held that a warrant thus defective is no justification for the officer, and also Stale v. Staples, 37 Maine, 228, and State v. Garter, 39 Maine, 262.</p> <p>" A magistrate has no authority to issue a warrant to search a dwelling house for intoxicating liquors . . unless it shall first be shown to him by the testimony of witnesses, etc. Unless the warrant shows this preliminary proceeding, it is void.” State v. Staples, supra, and Iones v. Fletcher, 41 Maine, 254.</p> <p>In State v. Kiely, 116 Mass. 342, under a statute like ours, the complaint alleged that intoxicating liquors were kept " in a certain tenement on Derby Square, and numbered 6 on said square, and the rooms over the tenement on the first floor numbered 6, on said square, the entrance to said rooms being numbered 8 on said square.” The warrant followed the complaint, and directed the officer to enter and search the premises mentioned. The court held the warrant was void.</p> <p>The provisions of the act of 1885, so far as they relate to the election of constables, are unconstitutional. The constitution provides that cities may vote in their wards for all officers they have been accustomed to vote for. Constitution of Maine, Art. IV., part 1, § 5. And because it is local legislation and is a change in the general laws of the state, to apply to but one locality. State v. Flemming, 66 Maine, 142.</p> <p>By R. S., c. 3, § § 12 and 13, provision is made that constables must be elected by the ballots of the citizens, unless some other method is agreed upon by vote of the town.</p> <p>A constable is not a mere local officer; he is a state officer, and may serve precepts any where in the county where he is elected. Sullivan v. Wentworth, 137 Mass. 233; 1 Dillon, Mun. Corp. (3d ed.) § 60 and notes, and § § 58 & 59 and notes.</p> <p>The provisions of the charter as to time and mode of election must be strictly observed. 1 Dillon, Mun. Corp. § 207.</p> <p>The election of the constable was legal. Sampson v. Bowdoinliam S. M. Oorp. 36 Maine, 78; 1 Dill. Mun. Corp. § 285 ; Morawetz, Corp. § 359 ; 1 Pick. 154; 9 Pick. 97; 12 Allen, 480.</p> <p>The warrant was regular. State v. Woods, 68 Maine, 409.</p>

On report. The opinion states the case and material facts. cited, upon the question of plaintiff’s title by levy: Stat. 1821, c. 60, § 27; U. S. Process Act of May 19, 1828 ; Bank v. Halstead, 10 Wheat. 1; Beers v. Haughton, 9 Pet. 362; Oatherwood v. Cápete, 2 Curtis, 96 ; Springer v. Foster, 1 Story, 602 ; JJ.

On exceptions, from the superior court. cited: State v. Ruby, 68 Maine, 543 ; State v. Burke, 38 Maine, 574 ; State y. Stimpson, 45 Maine, 608; Carlton y. Commonioealth, 5… Held: That illegal use by under tenant does not avoid original lease, but only the under lease.” Mere neglect of the landlord to avail himself of the privilege given by statute to eject a tenant, who uses the tenement for an illegal purpose, is not in itself sufficient to render him liable to indictment.

■On exceptions from the superior court. (Complaint.) State of Maine. Cumberland, ss. To the recorder (the judge being absent from the court room,) of our municipal court for the city of Portland, in the county of Cumberland.

<p>Intoxicating liquors. Search and seizure. Seizure without a warrant. B. S., c. 27, § § 89, 40.</p> <p>When an officer has, under R. S., c. 27, § 39, without a warrant, seized intoxicating liquors for the purpose of keeping them in some safe place until he can procure “ such warrant,” he may then proceed on complaint to obtain a warrant under E. S., c. 27, § 40, and seize the liquors nunc pro tunc and make his return thereon that the liquors were seized on such warrant.</p> <p>When an officer has thus taken liquors without a warrant, his complaint for a warrant may allege, that the liquors were unlawfully kept and deposited in the place when and where he found them and that they were then and there intended for sale within this State in violation of law.</p> <p>On the warrant thus issued the person so keeping the liquors and intending to> unlawfully sell the same, may, if it he so alleged, he arrested.</p>

On exceptions. Assumpsit upon a policy of fire insurance for four hundred and fifty dollai’s. The instruction was correct. Strong V. Manufacturers' Ins. Co. 10 Pick. 40; see also Thayer v. Providence Ins. Co. 70 Maine, 531.; Brown v. E. & JST. A. By. Co. 58 Maine, 389. Prior to Stat. 1861, c. 34, § 2, it had been repeatedly held that misrepresentation as to title was material and avoided the policy. Bellatty v. Thomaston M. F. Ins.

On report. The opinion states the case and material facts. cited : Gilmore v. McNeil, 45 Maine, 599 ; Hinckley v. Bridgham, 46 Maine, 450 ; Stanley v. Brinkwater, 48 Maine, 468; Waterhouse v. Bird, 37 Maine, 326; 14 Maine, 312; Wentworth v. Sawyer, 76 Maine, 434.

<p>On report.</p> <p>Scire facias by a sheriff.</p> <p>The material facts are stated in the opinion.</p> <p>cited: 74 Maine, 494; 37 Maine, 302.</p> <p>Mr. Blake’s discharge in bankruptcy operated as a discharge-of the plaintiff’s claim, if any he ever had. Grover v. Olinton, 8 B. R. 312; Manf. Oo. v. Barnes, 49 N. H. 312; Bump on Bankruptcy, 7 Ed. 639.</p> <p>When the plaintiff, as defendant, in action Davis v. White, on the judgment sued, pleaded payment and satisfaction of said "judgment by Blake, and the court so found and gave judgment for the plaintiff, then defendant, in said action, the plaintiff is estopped to deny that Blake did not pay the judgment as it was agreed between the plaintiff and Blake. Foss v. Stewart, 14 Maine, 312 ; Big. on Estoppel, 512.</p> <p>Sureties are by rules of law regarded with favor, which has been formulated into the maxim that the liability of sureties is strictissimi juris.</p> <p>They are bound so far only, as they distinctly, by contract, bind themselves; their liability is not to be extended by construction. Hence, when the plaintiff entered into the arrangement with Blake that Blake should’ settle the execution, Davis-v. White, then White released and waived his claim upon the-sureties, because the sureties were not parties to the new contract, between Blake and White, the plaintiff. U. S. v~ Oorwine, 4 Myers, Fed. Dec. § § 736-7 ; TJ. S. v. DeVisser,. 10 Fed. Eeptr. 642; Brown v. Mosely, 19 Miss. 354; Sclilossv. White, 16 Cal. 65; Andrews v. Marrett, 58 Maine, 539.</p> <p>The neglect of Blake to see that the satisfaction of said: judgment was endorsed upon the execution, was not among the-official duties which the sureties agree to indemnify the plaintiff' against, to wit, the doings, wrong doings or neglect of Blake, in the execution of the office of deputy sheriff. And the plaintiff' has no claim in sci. fac. upon Blake or his sureties, for any costs, damage or expense, arising from his defence of the action on the judgment, Davis v. White. Kendrick v. Smith, 31 Maine, 162; Smith v. Berry, 37 Maine, 303; Junkins v. Lemonds, 29 Ind. 294; McDonald v. Atkins, 13 Neb. 568;. Wilson v. State, 13 Ind. 341; U. S. v. Boecleer, 21 Wall. 652 Tobey v. Leonard, 13 Mass. 200.</p> <p>The agreement of Blake with the plaintiff to settle the-execution Davis v. White, can not be considered an official duty or act within the scope of the conditions of his official bond, for-which the sureties are liable. Governor v. Perrine, 23 Ala.. 808; Dean v. Governor, 13 Ala. 536; Murfree on Bonds,, § 723; Gwinn v. Buchanan, 4 How. 1.</p> <p>To illustrate further our position, we cite, U. S. v. Adams-,, L. E. Yol. 19, No. 5, p. 882.</p> <p>The sureties of a sheriff are not liable upon his official bond,, for a deposit of money, made in lieu of bail. State v. Long,. 8 Ind. 415.</p> <p>The defendants having plead performance, and no official neglect being proved by the plaintiff on whom is the burden, judgment must be for defendants. Machiasport v. Small, 77 Maine, 109.</p>

<p>On report.</p> <p>Two indictments for perjury. The defendant claimed that they were invalid and insufficient on the ground that no definite time is alleged on which the crime was committed. The presiding justice was of the opinion that there was great doubt as to the sufficiency of the indictments in that respect, and, on his suggestion, the cases were reported by him to the law court, the county attorney and defendant agreeing thereto. "If the indictments are good, the cases are to be sent back for trial; if bad, they are to be quashed and the defendant discharged.”</p> <p>cited: Archibald, Cr. PI. §§ 37, 38 (10th ed.); Whart. Cr. Ev. § 103, a; 2 Whart. Cr. L. § 1314 (8th ed.) ; Whart. Cr. PI. & Pr. § 135 (8th ed.) ; State v. Gorson, 59 Maine, 141; R. S., c. 122, § 4; State v. Hanson, 39 Maine, 337; State v. Hay, 74 Maine, 220 ; State v. Baker, 34 Maine, 5'2.</p>

On exceptions. Indictment for arson. The opinion sufficiently states the material facts. The following is that'portion of the charge of the presiding justice referred to in the opinion; the particular portions excepted to are included in brackets and numbered to correspond with the numbers used in the opinion : We can not always account for a man’s conduct by what we would do ourselves. An honest man cannot comprehend any reason why any man should commit a crime.

On exceptions to the ruling of the court in accepting the report of a majority of the committee appointed by the court on an appeal from the decision of the county commissioners, as reversing the judgment of the commissioners. The appeal opens to the consideration of the committee the whole question which was before the county commissioners. Winsloio v. Go. Gom. 31 Maine, 444.

<p>On report.</p> <p>The case is stated in the opinion.</p> <p>(Copy of contract declared on.)</p> <p>"This agreement made this twenty-first day of January, A. D. eighteen hundred and eighty-two, by and between Charles Goodridge of Deering, in the State of Maine, of the first part; Robert M. Forsman of Williamsport in the State of Pennsylvania, William T. Price of Black River Falls, in the State of Wisconsin, and George F. Foster of Portland, in the State of Maine, of the second part: witnesseth — that it is mutually agreed as follows, to wit: the said party of the first part hereby agrees to sell to said parties of the second part all timber standing, lying, or growing on the following described parcels of land situated in Eau Claire county, in the State of Wisconsin, to wit: . . . for the agreed price of two dollars and twenty-five cents for each one thousand feet of merchantable pine timber on said lands that will measure twelve inches at the top, and at least twelve feet long, to be paid by said parties of the second part to said party of the first part as follows : Four thousand dollars on the execution of this agreement and the balance as hereinafter specified; said four thousand dollars is to be held by said party of the first part as security for the performance of this agreement, and on the completion of the same by the said parties of the second part, is to be allowed with interest from the second day of January, A. D. eighteen hundred and eighty-two, on the last payment to be made by them under this agreement. It being understood that all merchantable pine timber of the dimensions aforesaid, including all timber twelve inches in diameter in every tree which is large enough to make one log of the dimensions aforesaid cut on said land, shall be paid for by said parties of the second part to said party of the first part, at the rate aforesaid, interest being; allowed as hereinafter specified.</p> <p>"Said sale is made subject, however, to the following conditions. and agreements, to wit: said timber shall be cut and removed from said lands by said parties of the second part within five years from the first day of May, A. D. eighteen hundred and eighty-two, and shall be cut clean from said lands as fast as the work progresses. All timber which is sound and large enough to be cut into logs twelve inches at the top and twelve feet long, including unsound logs, .the sound portions of which will give the measurements aforesaid, shall be cut and accounted for to said party of the first part at the rate aforesaid. The logs as measured are to average sixteen feet in length: logs twenty-four feet long are to be measured twice, to wit, as two logs, and if longer there shall be a measurement for every twelve feet additional. All timber cut on the above lands is to be hauled by said parties of the second part to the Eau Claire River or its tributaries and to be scaled on the bank. It shall be kept separate from all other timber until it has been so scaled and the scale has been accepted by the party of the first part. All logs are to be scaled sound, and such a record of the scale shall be kept as is usual according to the standard form of scale books that are in use on the Chippewa River; such scale shall be made by some competent scaler who shall be mutually agreed upon by the parties to this contract, and shall be paid for his services by the said parties of the second part. Provided however, that if at any time either of the parties to this agreement shall be dissatisfied with the scale so made he may cause said logs or any portion thereof to be scaled by the district scaler of the district in which said timber is situated, the expense of said rescaling to be borne by the party causing the same to be made, unless the first scale is found to be incorrect, in which case the expense is to be borne by both parties jointly. All logs are to be marked by said parties of the second part in a plain and substantial manner with such a mark as shall be registered for the season, which said mark shall be recorded in the name of the party of the first part in the office of the Surveyor General of logs and lumber in the district where the timber is situated. Said parties of the second part are to cut and haul not less than three millions "three hundred and thirty-three thousand feet of timber, to be accounted for to said party of the first part, from said lands during each of the two winters of eighteen hundred and eighty-one and eighteen hundred and eighty-two, and eighteen hundred and eighty-two and eighteen hundred and eighty-three, respectively. And in case of failure to cut and haul the above amount are to allow and pay to said party of the first part interest on the amount of the deficiency in each year from the first day of May following to the first day of May A. D. eighteen hundred and eighty-four; and all timber on said lands remaining uncut after said first day of May eighteen hundred and eighty-four shall be settled for at the rate aforesaid with interest from the first day of January A. D. eighteen hundred and eighty-two. All timber cut on said lands in any year as hereinbefore provided shall be paid for on or before the first day of November following with interest from the first day of May preceding, on which day the account of the timber cut in that year shall be made and adjusted. All timber destroyed or injured by fire or wind subsequent to the date of this agreement shall be accounted for by said parties of the second part as if cut and hauled by them, it being understood that all the timber on said lands stands at the risk of the parties of the second part after the date of this agreement. It is further understood and agreed that this agreement shall not be transferred by said parties of the second part, nor shall any sale, of the timber cut on said lands give to any other party the right to cut and haul the same without the written consent of the party of the first part.</p> <p>"The said party of the first part is to pay all taxes on each forty acres of the foregoing lands until they shall be cleared of timber as aforesaid, after which time all taxes on the same shall be paid by said parties of the second part and the lands shall thereupon be conveyed by quit-claim deed to said parties of the second part. It is further agreed that the interest specified in this agreement shall be at the rate of six per cent. And the said parties of the second part in consideration of the premises hereby agree to purchase of said party of the first part said timber to be cut as aforesaid, and to pay said party of the first part for the same, at the rate and in the manner hereinbefore provided, and to do all other things on their part necessary to be performed in order to carry out in good faith the foregoing agreement in all its specifications and details.” Duly executed.</p>

<p>On exceptions and motion to set aside the verdict.</p> <p>An action for damages for failure of the defendant to perform the following contract:</p> <p>"This agreement, made this thirteenth day of December, A. D. 1878, between William H. Fessenden of Portland, in the county of Cumberland and state of Maine, of the first part, and Thomas S. Lindsey and John Lovejoy of Rockland, Maine, Horace W. Jordan of Boston, in the commonwealth of Massachusetts, Henry W. Swanton and Edwin Reed of Bath, Maine, the committee appointed December 9, 1878, by the Rockland, Mt. Desert and Sullivan Steamboat Company, an organization formed by articles of agreement dated November 7, 1878, of the second part, witnesseth.</p> <p>"That the party of the first part, for the consideration hereinafter mentioned, agrees to build for the party of the second part, a side wheel steamboat, with boiler and machinery, according to the specifications submitted to him by the party of the second part, except so far as alterations therein may be agreed upon in writing, to guarantee to said boat a speed of fifteen miles per hour, with forty pounds of steam, and without forcing the fires, to procure the proper certificate from the United States Inspectors, to make a trial trip at sea and to deliver said boat to said party of the second part, on the twentieth day of May, 1879.</p> <p>" And in consideration of the foregoing, the party of the second part agrees to pay all inspection and Custom House fees, to furnish the equipment required by the laws of the United States, to pay the pilot on the trial trip, and to pay the party of the first part the sum of thirty-four thousand seven hundred dollars as follows:</p> <p>“The sum of four thousand dollars in one month, the sum of six thousand dollars in two months, the sum of six thousand dollars in three months, the sum of eight thousand dollars in four months, and the sum of ten thousand seven hundred dollars on the delivery of said boat as aforesaid,' and the acceptance of the same by the party of the second part.</p> <p>"It is understood that the party of the first part shall pay to the party of the second part the sum of fifty dollars per day for each and every day that the delivery of said boat may be delayed beyond the time herein agreed upon, unless said delay should arise from causes not within the control of said party of the first part.” Duly executed.</p> <p>The verdict was for the plaintiifs for eight thousand three hundred and thirty-one dollars and thirty cents.</p> <p>cited : 24 Rees’ Cyclopedia, "Mile”; Webster’s Diet. "Mile”; Worcester’s Diet. "Mile”; 11 Appleton’s Cyclopedia, "Mile”; 16 Encyclopedia Brit. (Ed. 1858) Tit. "Navigation”; 14 Encyclopedia Brit. (Ed. 1858) Tit. "Log”; People's Ferry Oo. v. Beers, 20 Howard, 393.</p> <p>Evidence of usage was admissible. Lethulier’s case, 2 Salk. 443 ; Vallance v. Dewar, 1 Camp. 503 ; Robertson v. Jackson, 2 C. B. 412 (52 E. C. L. 411) ; Petty v. Royal Exch. Ass. 1 Burr, 341; 2 Whart. Ev. § 963; 1 Greenl. Ev. § 289; Morse v. Weymouth, 28 Yt. 824.</p> <p>No word is better and more distinctly defined than this word, mile. There is no ambiguity about it. It is of common and familiar use, and to the great majority of men is not known to ever be applied, even with qualifying adjectives, to the designation of but one fixed and definite measure of length or distance. Nash v. Brisco, 51 Maine, 417.</p> <p>There was, therefore, no difficulty in respect to the significance of that term in this contract, requiring the aid of intrinsic evidence to interpret it. Quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba fienda est.</p> <p>The language of the contract being free from ambiguity, evidence of usage was not admissible to show that it meant anything different from its plain and natural import. Ripley v. Qrooker, 47 Maine, 376; Metcalf & ais. v. Weld & ais. 14 Gray, 212.</p> <p>" Where the meaning of terms is plain and unequivocal and a fortiori, where the law has annexed a particular meaning to the use of the term, it seems to be a universal rule that no evidence can be admitted of a custom or usage to receive such terms in a different sense.” 2 Starkie’s Ev. p. 455.</p> <p>" So where words have a known legal meaning which belongs to them.” 3 Starkie, 1038.</p> <p>"But where the words have a known legal meaning, such for instance as measures of quantity fixed by statute, parol evidence that the parties intended to use them in a sense different from the legal meaning, though it'were still the customary and popular sense, is not admissible.” 1 Greenl. Ev. § 280 ; Taylor on Ev. § 1062.</p> <p>" Where words have acquired a known legal meaning, it can not be shown that they were used in a different sense.” Boornlan v. Jenkins, 12 Wend. 574; Att’y General v. Plate Glass Go. 1 Anstruther, 39.</p> <p>That the word mile has in the United States acquired a known legal meaning, is clear from the legislation of the Congress of the United States, and of the Legislature of Maine.</p> <p>Revised Statutes of United States, § 74, "not exceeding ten cents a mile,” etc., allowed for travel to serve precepts of either house of Congress; § 1273, "ten cents a mile, and no more, for each mile actually traveled,” allowance to army officers ; § 1566, " an allowance of ten cents a mile may be made to officers in the Naval service . . for traveling expenses when under orders.”</p> <p>There is not one kind of miles for army officers and civilians and another kind for naval officers. § 5126, "five cents a mile each way,” fees of messenger in bankruptcy; § 829, marshal’s fees, "ten cents a mile for himself and each prisoner,” to attend court, "ten cents for going only,” for serving process, "six cents per mile”; § 828, clerk’s fees, travel to court, "five cents a mile for going and five cents for returning.”</p> <p>Revised Statutes of Maine, c. 116, § 11, travel of jurors, "six cents a mile for their travel out and home”; § 13, witnesses, "six cents per each mile’s travel going and returning”; § 14, parties and attorneys, " the same (33 cents) for every ten miles’ travel”.; p. 815, sheriff’s travel, "four cents a mile,” "more than fifty miles only one cent a mile”; p. 814, appraisers of real estate, "four cents a mile,” etc., etc. "Bushels, without any other explanation, means a bushel by statute measure.” Hockin v. Cooke, 4 Term. Rep. 314; Noble v. Durrell, 3 Term. Rep. 271; Master of St. Cross v. Lord Howard De Walden, 6 Term. Rep. 338.</p> <p>" The English statute mile was defined (incidentally it would seem) by an act passed in thirty-fifth year of the reign of Queen Elizabeth, by which persons were forbidden to build within three miles of London, and the miles were declared to be eight furlongs, of forty perches, of sixteen and one-half feet each. The statute mile is therefore 1760 yards, or 5280 feet.” Brande Encyclopedia of Science and Art, Title "mile”; Statute 35 Elizabeth, c. 6 ; Bouvier’s Law Diet. " mile ”; also Jacob’s Law Diet.</p> <p>Revised Statutes of United States, § 3570, giving table of Equivalent Measures in Metric system; § 4233, prescribing rules to be observed by all vessels of the navy and mercantile marine of the United States for prevention of collisions at sea. Buie two, A, l-equires a light to be visible, " at a distance of at least five miles.” " Where a written contract is susceptible on its face of a construction that is reasonable, resort can not be had to evidence of custom or usage to explain its language.” Insurance Oos. v. Wright, 1 Wall. 470; Kemble v. Lull, 3 McLean, 274; Cross v. Eglin, 2 Barn. & Adol. 106 (22 E. C. L. 36).</p> <p>In Brown v. Brown <& al. 8 Met. 576, Shaw, C. J., " We think the general rule of law is, that the construction of every written instrument is a matter of law, and, as a necessary consequence, that courts must in the first instance, judge of the meaning, force and effect of language.” The Reeside, 2 Sumner, 569.</p> <p>This contract for building a vessel was not a maritime contract, and the claim that its terms should receive a construction suitable to a maritime contract can not be sustained. People's Ferry Co. v. Beers, 20 Howard, 402; Cunningham v. Hall, 1 Clifford, 45; The Coernine, 7 Am. Law. Beg. 5; Calkin v. United States, 3 Nott. & Hunt. 297; Young v. Ship Orpheus, 2 Clifford, 35.</p> <p>In Roach & al. v. Chapman & al. 22 Howard, 132, Mr. Justice Grier, delivering the opinion of the court, says: " A contract for building a ship, or supplying engines, timber or other material for her construction, is clearly not a maritime contract.”</p> <p>To make evidence of custom admissible, to control the ordinary and well known sense of the terms of a contract, that usage must be so notorious that not only those engaged in the business to which the custom pertains, but also all who deal with them, must be understood and taken to have known it and had reference to it, upon contracting. Rogers v. Mechanics Ins. Co. 1 Story, 607; Macy & al. v. Whaling Ins. Co. 9 Met. 363.</p>

On exceptions. This was the second time this case had been before the law court. It is reported in 78 Maine, 139, where is given a copy of the original declaration. The plaintiff, after the first opinion of the court filed an amendment to the declaration and the defendant moved that the amendment be not allowed because, among other reasons, it set out new causes of action and introduced new parties.

On exceptions from superior court. The opinion states the material facts. cited: Berry v. Clary, 77 Maine, 482 ; State v. Bonney, 34 Maine, 223. The exchange of animals was proposed, assented to and effected on the Lord’s day,” in violation of Rev. Stat. c. 124, secs. 20 and 22, and because the plaintiff was a party to that violation, and does not come into court with clean hands, he cannot recover in this action. There was no legal contract on which to maintain assumpsit.

<p>Partnership. Assignee of partnership affairs. B. S., c. 69, §§ 1-4.</p> <p>The provisions of R. S., c. 69, §§ 1-4, relating to the settlement of the estates of deceased partners, do not apply to an account sued in the name of surviving parties for the benefit of one partner to whom the account was assigned by the partnership during the lifetime of all the partners.</p>

<p>On exceptions and motion to set aside the verdict and for new trial.</p> <p>An action of debt to recover the penalties for having in possession six hundred and fifty-five young lobsters under nine Inches long, in violation of R. S., c. 40, § 21.</p> <p>The jury found four hundred and twenty lobsters unlawfully In the possession of the defendant, and rendered a verdict for four hundred and twenty dollars.</p> <p>cited: Bixby v. Whitney, 5 Maine, 192; Stevens v. Fassett, 27 Maine, 282; York v. Goodwin, 67 Maine, 260; 1 Bish. Crina.-Law, § § 1013, 1014, 1021; Oom. v. Loud, 3 Met. 328.</p> <p>In Burnham v. Webster, 5 Mass. 268, the court say, that where the plaintiff declared in one count for several penalties,, that is, "for each and every of said offences the sum of fifteen dollars, amounting in all to sixty dollars,” had the jury returned a verdict for more than one penalty, viz., fifteen dollars, it would have been irregular. Upon like principle the jury in this case, had they found young lobsters unlawfully in the defendant’s possession, less than nine inches in length, should not have returned a verdict for more than one dollar.</p> <p>If the magistrate erred, it is no fault of the defendant, nor should he be made to suffer for it. Even should the proceedings before the magistrate prove no bar to another criminal prosecution, it should bar this action of debt. This is a civil action and inconsistent with the criminal process .instituted before the magistrate. Canfield v. Mitchell, 43 Conn. 169.</p> <p>The plaintiff having* elected to recover these penalties by complaint and warrant, in the name of the state, irrevocably waived the remedy by action of debt. York v. Goodwin, 67 Maine, 260; Wise v. Brownstein, 35 Hun. (N. Y.) 569.</p> <p>In Allen v. Young, 76 Maine, 80, the court say: "It has been repeatedly asserted in both ancient and modern cases, that judges may in some cases, decide upon a statute in direct contravention of its terms, that they may depart from the letter in order to reach the spirit and intent of the actand cite with approval Holmes v. Paris, 75 Maine, 559, and cases there cited.</p> <p>■There is no evidence in the case that the lobsters were young. Every essential part of the description must be proved. Allegations of matter of substance must be substantially proved, but allegation of description must be literally proved. Ackley v. Dennison, 22 Maine, 168.</p>

On exceptions to the ruling of the court in refusing to grant the writ of mandamus on plaintiff’s petition. The opinion states the facts.

<p> Contract. Support ttnd maintenance. Physician’s MU. </p> <p>Where a husband and wife bound themselves by bond to other persons to furnish support to a third party, and fail to perform their duty in that respect, there is no implied authority to warrant such third party in obtaining outside assistance upon their credit and expense.</p> <p>Where the wife knew a physician had been sent for to attend such party, and did not object, and the husband, on the arrival of the physician at his house, forbade him rendering any service on their account, and the physician rendered services, making his charge therefor to such third party, he cannot, after such election, recover of the husband and wife, or either of them, either the whole charge for such visit, or so much of it as accrued before the husband’s repudiation of his authority to act.</p>

On exceptions from superior court. The opinion states the question presented by the exceptions.- If one of the partners is constituted agent for the firm, and power is delegated to him to wind up the partnership business, such power ceases when the business of the firm is closed up. Story on Partnership, pp. 512 to 570.

On exceptions. Plaintiffs filed a bill of costs with written motion to be allowed costs. The motion was overruled and the plaintiffs alleged exceptions. Should the court hold that the proceeding is not strictly an action at law, still, in the light of several decisions in this state, we are entitled to costs up to the time when commissioners were appointed.

On exceptions to the ruling of the court in overuling a demurrer to the declaration. The opinion states the case. Should the court decide that the demurrer is properly before them, then we submit that inasmuch as it is general there are no defects in the writ and declaration which it may reach.

Bill in equity by the administrator, with the will annexed of the estate of Jane H. Hawes, brought to obtain a construction of the will, which was as follows : I, Jane H. Hawes, of Searsmont, in the county of Waldo and state of Maine, being weak in body, but of a sound mind and memory (blessed be Almighty God for the same), do make, publish and declare this my last will and testament, in manner and form following, viz. : 1.

<p> Contract. Sunday law. Burden of proof. </p> <p>"The burden is upon the defendant to prove that a bond, on which he is sued as obligor, was delivered on Sunday, instead of on Monday, the day of its date, if he sets up the Sunday-law in defense of the action. The party •■affirming fraud or illegality, must prove it.</p>

<p>On exceptions.</p> <p>Tbe opinion states the case.</p> <p>cited: Norridgewoek v. Walker, 71 Maine, 181; Lowe v. Weld, 52 Maine, 588 ; Johnson v. Goodridge, 15 Maine, 29; 21 Pick. 67.</p> <p>The action is under R. S., c. 6, § 175, which in its amended form reads: " In addition to the other provisions for the collection of taxes legally assessed, the mayor and treasurer of any city, the selectmen of any town, and the assessors of any plantation to which a tax is due, may in writing direct an action of debt to be commenced in the name of such city, or of the inhabitants of such town or plantation, against the party liable.” This statute was originally enacted in 1874.</p> <p>It is claimed that the language " taxes legally assessed,” relates only to matters of form or of record in the assessment and commitment of the taxes, and in the election and qualification of assessors, as in Dresden v. Goud, 75 Maine, 298.</p> <p>It is said that the question here presented has never been considered by the court. If that is so, it is difficult to understand how the court could have made the order of " plaintiffs nonsuit” in Biicksport v. Woodman, 68 Maine, 33. That case was under this same statute, and the tax sought to be recovered was assessed upon a judgment of the first Court of Commissioners of Alabama Claims; the defence was that such an award or judgment was not taxable, and the court sustained that defence, in that action.</p> <p>In Camden v. Camden Village Corporation, 77 Maine, 538, the tax sought to be recovered was upon a building containing the lockup, offices, etc., of the village corporation. The action was under this same statute. The defence was that the property was not taxable, and the court sustained that defence in that action.</p> <p>It seems to us that those two actions were decided exactly right, and in compliance with the statute under which they were brought. That the " condition precedent to the maintenance of the action, that the tax should be legally assessed,” was not fulfilled if the property was not taxable. A tax can not be " legally assessed ” when it is assessed upon property which is not taxable.</p> <p>What was the purpose of the legislature in the act of 1874? At that time there was in vogue the following methods of collecting taxes, for convenience we cite present statutes :</p> <p>1. Distrain the goods and chattels. E. S., c. 6, § 132'.</p> <p>2. Arrest of the tax-payer on the warrant. E. S., c. 6, § 134.</p> <p>3. Sale of real estate. E. S., c. 6, § 193 et seq.</p> <p>4. An action of debt in the name of the collector. E. S.P c. 6, § 141.</p> <p>In no one of these methods could the party assessed successfully defend, or interfere and stop proceedings on the ground sustained in Buclisporl v. Woodman, supra.</p> <p>" Pay your tax ” the law said, as construed by the court, and if you are injured bring an action to recover it back. And it was specifically held in Waite v. Princeton, 66 Maine, 226, io an action in the name of the collector, that the remedy of the defendant in an action like the one at bar, was by application for abatement.</p> <p>But there is an important difference between the statute authorizing an action in the name of the collector and the statute authorizing this action.</p> <p>Prior to 1874, if a person was improperly taxed, as was this defendant by the City of Bath, he must apply to the assessors for abatement, § 95 ; if their decision was adverse, he must apply to the county commissioners, § 96 ; if their decision was adverse, he must appeal to this court, and he thus, in that roundabout way, after the expense and trouble to all parties of two hearings, gets before a competent tribunal to hear and determine a question of law.</p> <p>The legislature undoubtedly considered all that circumlocution unnecessary and burdensome to both parties. And they enacted this short cut to the court of last resort, that towns and cities could adopt in cases, like the present, where there was an honest difference of opinion.</p> <p>In order that the taxes shall be legally assessed, the list of assessments must be signed by the assessors. JVorridgewock v. Walker, 71 Maine, 181.</p> <p>The warrant, in so many words, required the collector to collect interest, when no interest could be collected. Snow v. Weeks, 77 Maine, 429.</p> <p>We are told that these provisions are directory only; et ergo of no consequence. And Shaw, C. J., in Toney v. Millbury, 21 Pick. 67, is cited to sustain this point. We submit that the opinion of the learned jurist has been unjustly treated before now, and that the paragraph preceding the one quoted by plaintiffs’ counsel contains the rule for distinguishing between conditions and directions only. " All those measures which are intended for the security of the citizen . . . are conditions precedent, and if they are not observed he is not legally taxed.”</p> <p>In Thurston v. Little, 3 Mass. 429, which is the first case we find, where the point was specially discussed, the court say, " the statute expressly requires assessors to make and lodge in the clerk’s office, or in their own, if they have one, an invoice of valuation from which the rates of assessment shall have been made.”</p> <p>If the opinion of the court in Thurston v. Little, supra, is good law and worthy of consideration, then apply the rule given by Shaw, C. J., in Torrey v. Millbury, supra, and the point is settled.</p> <p>Statutes are to be construed in reference to the principles of the common law. 1 Kent, 463.</p>

On exceptions. This was an action of assumpsit for damages on a breach of contract for the purchase and sale of thirty-five sixty-fourths of the schooner Annie Grus of Dennysville, Maine. The defence was that the schooner was not delivered by plaintiff to defendant in a reasonable time, and that the defendant had no opportunity to examine the vessel in order to see that she. was in good order as stipulated in the contract. Writ was dated March 20, 1885.

On motion to set aside the verdict and for new trial. The opinion states the case. Keeping proper books of account, within the meaning of the bankrupt law, consists in keeping and preserving an intelligent record of the merchant’s or tradesman’s affairs with such reasonable accuracy and care as may properly be expected from a man in that business. An accidental failure to make a proper entry will not vitiate. Re Winsor, 16 Bank. Keg. 152.

The opinion states the case. cited: Ham v. Ham, 14 Maine, 351; Hains v. Gardner, 10 Maine, 383; Fox v. Widgery, 4 Maine, 214; 1 Greenl. Held: Any evidence repugnant to the deed is inadmissible.” The acts and admission of a grantor after the execution of his deed cannot be received in disparagement of the title already vested in his grantee.” Farwell v. Rogers, 99 Mass. 35; Padgett v. Lawrence, 10 Paige, 170; Jackson v. Gilchrist, 15 Johns. 106.

On exceptions. Petition for partition. In 1863, Adam Blackman, while seized of the one undivided half part of said tract under the Pinhorn mortgage, gave a quitclaim deed to George V. Blackman, mentioned in the ojiinion, as follows: One undivided half part of a certain tract of land containing 1772 acres more or less, same known as the'Eaton Tract;’ intending hereby to release and convey all right and title to all that undivided half part of said premises which were conveyed…

On report. Bill in equity, heard on bill, answer and proof. It seems that a promise of an administrator to pay, or to become responsible for, the debt of his decedent, to render him personally liable thereon, must not only be in writing, but must also be founded on a sufficient consideration. Schouler’s ExT and Adm’rs, 255; Wms. Exrs. 1776; Davis v. French, 20 Maine, 21; Walker v. Patterson, 36 Maine, 273.

On exceptions, which were as follows : This was an action of assumpsit, to recover one hundred and fifty dollars, which plaintiff claimed he loaned and delivered to the defendant in money, while defendant was engaged in a game of poker. Defendant claimed that the one hundred and fifty dollars was a poker or gambling debt, and was the amount he was indebted to the plaintiff at the end of the game. The verdict was for the defendant.

On report üpon agreed statement of facts. Trover by a seller of goods against the messenger in insolvency. The facts are stated in the opinion. cited: 1 Benj. Sales, (4 Am. ed.) § § 490, 500,501; Same. American notes by Charles L. Coi’bin, § § 782, 783,784, 785, notes w, and x; Lane v. Jackson, 5 Mass. 156; Grout v. Hill, 4 Gray, 361; Scholfield v. Bell, 14 Mass. 39 ; Seed v. Lord, 66 Maine, 580; 29 Am.

On exceptions from superior court. Assumpsit on an account annexed. The verdict was for the plaintiff for the sum of one cent. The presiding* justice, on motion of the plaintiff set the verdict aside and granted a new trial, and the defendant alleged exceptions on the ground that the justice was not authorized to set aside a verdict in that court.

On report upon agreed statement of facts. Trespass, for taking and converting to the defendant’s own use three colts.

On exceptions and motion to set aside the verdict by the plaintiff. Writ of entry to obtain possession of certain real estate. in Medford. Plea, general issue. The opinion states the case presented by the exceptions.

On report. This is an fiction, brought by the judg’e of probate for Seth Webb, of debt on the bond of the administratrix upon the estate of William Whitmore. The report says that, The inventory showed real estate appraised at $125, but no personal property. The estate was represented insolvent, and commissioners were appointed, who allowed Seth Webb’s claim of $1198.96. This report was accepted at the December term, 1882.

On exceptions to the ruling of the court in sustaining a demurrer to the following bill in equity : Somerset, ss.

On report. This was an action to recover a tax assessed by the city of Portland upon personal property of the defendant for each of the years 1882 and 1883 and was submitted to the law court upon an agreed statement of facts. The material facts are stated in the opinion. cited: Davis v. Macy, 124 Mass. 195.

On report. Bill in equity by the administrator, with the will annexed, of the estate of John Stidworthy against the widow and heirs of the testator, to obtain a construction of the will.

On exceptions to the ruling of the court in overruling a demurrer to the following plea in abatement.

<p> Wills Devises. Life-estate. Evidence. </p> <p>Prior to the Revised Statutes of 1841, a devise of land, in this state, without words of inheritance, carried only a life-estate, unless it could be collected from the whole will that a fee was intended by the testator. That rule governs all testamentary instruments made before that date.</p> <p>Where, in a will ante-dating 1841, a father gave his daughter half his estate outright, consisting of real and personal property, and the other half subject to a life-estate to his wife therein, using no words of inheritance in his devises, — but limiting an estate to his wife in appropriate words — and declaring that he was disposing of his “ estate ” — making no general residuary clause — and in the devises to his wife and daughter using the phrase, “ one-half of all my real and personal estate” — naming all his heirs in Ms will and making small gifts to them,— and where from these provisions the daughter might never take the second half of the estate unless she took a fee, because she might die before the mother,— it is manifest that the testator intended to devise to the daughter an absolute estate, less the limited estate to the mother •— a full fee.</p> <p>Although a devise on its face may import an absolute gift to the devisee in her own right', it is competent to show by her written admissions, that she was to take the property in trust for herself and others: but such proof could not affect the right of a third party purchasing the property without notice .of any trust.</p>

<p> Waters. Streams. Drains. Prescription. Nuisance. Injunction. </p> <p>The city of Belfast has, for a long period, maintained an underground or covered drain, running through an ancient brook which, in its natural state, carried a considerable volume of water through the city to the sea. For many years the drain has served to carry off waste water and foulings from the houses and stores situated in its vicinity. The complainant and respondent have adjoining premises through which the drain runs. Lately the city diverted the drain at a point just above complainant’s premises, carrying it around the premises of both parties, and uniting the new link with the old drain below respondent’s land. Thereupon, the respondent threatened to stop up the old drain on his own land, thereby preventing the complainant using it, alleging that its occupation' is wrongful and injurious to him — the complainant denying it. And the complainant claims not only the right to have the benefit of the natural brook for its waste, but also the right to a greater enjoyment of it, acquired by the public by user.</p> <p>Held, that the complainant is not answerable for any consequences of the diversion caused by the city. But their privileges may be curtailed thereby, as next stated.</p> <p>Held, also, that the respondent should not have any increased burdens or inconveniences put upon his premises by the change; and that his burdens should not be augmented, to his injury, by the act of the city, or of the complainant, or of both combined. The respondent is not to be a loser, if not a gainer, thereby.</p> <p>Held, further, that, if the complainant, by this rule, suffers from the act of the city in making- the diversion, the city will be answerable to it for any damages sustained, unless the complainant assented to the change, and the evidence is that it did assent to it.</p> <p>The right to pollute a stream to a greater extent than is permissible of common right, may be acquired by the public or by individuals by prescription.</p> <p>If the complainant has a prescriptive right to maintain, or have maintained, a close underground drain across respondent’s land, it may continue using it to any extent which will not affect respondent more injuriously than as heretofore used. In such case it is not perceivable that it would make any difference whether the amount, of foulings sent through the drain be more or less.</p> <p>If, however, the complainant has only the prescriptive right of having a drain maintained, over respondent’s land, which shall be subject to openings to be made in it for the private uses of the respondent, the complainant must be confined to a more restricted use of the drain, if a more restricted use be necessary to save any annoyance, to the respondent, more than existed before the diversion.</p> <p>An abuse of a prescriptive right does not create a forfeiture of the right, to use it lawfully.</p> <p>If a person feels aggrieved at the acts of another in over-using or abusing a prescriptive or natural right in a drain in which he is interested, he may sue him for damages, or procure an indictment against Mm, or move in equity for an injunction. But he would not be justified in entirely cutting off the drain in which the encroaching party has some right of use, and where the summary act would strike a blow at both individual and public privilege. Such a threatened act is restrainable by injunction.</p>

<p> Deeds. Delivery. </p> <p>M deeded his homestead to a minor son; the son, on same day, deeded to M’s wife; M recorded both deeds and kept them many years in a trunk in his bedi’oom, where they were when he died; no consideration was paid; M’s motive was to avoid payment of fines in liquor prosecutions; the wife, a witness, says the deed is hers and was in her possession, but swears to no act or word of her husband about the deed; she first had the trunk after his death; she applied for dower out of the same land; the husband conveyed an adjoining parcel to another, bounding it upon the land, in question, as his wife’s land. Jleld, between her and his (not her) children a delivery of the deed to her is not proved.</p>

On exceptions by Charlotte Rowell, the claimant of part of the fund in the possession of the trustee. The presiding justice found the following facts : Stevens, the principal defendant, had a claim against the trustee prior to September 10, 1883, of twelve hundred dollars.

<p> Evidence. Declarations of grantor. </p> <p>Evidence of a grantor’s declaration in disparagement of Ms title, made wMle he was owner of the land granted by him, introduced by a party claiming adversely to the grantee, cannot be contradicted by evidence of such grantor’s declarations made subsequently and in relation to the same title.</p>

On exceptions and motion to set aside the verdict and for a new trial. Assumpsit for labor performed. The verdict was for plaintiff for one hundred and six dollars and twenty-three cents. The opinion states the point raised by the exceptions and material facts.

<p>On report.</p> <p>Petition for certiorari to quash the proceedings of the county commissioners in laying out a highway from Limerick village to Newfield.</p> <p>The action of the new commissioner infuses into the judgment an illegal and foreign element, viz. : the judgment of a stranger; and this vitiates the whole judgment.</p> <p>The introduction of this foreign element is not unlike a stranger acting with a grand jury. In such case it is held the indictment found is void although twelve and more of the persons legally qualified concurred in the finding. Gom v. Parker, 2 Pick. 560 and cases cited.</p> <p>The petitioners were in fact cut off from appealing at the October session, by the suspension of action and as soon as the certificate was filed the proceedings were closed ; so they have been prevented from making an appeal and compelled to submit to the action and judgment of a person who did not hear them. In the case of Inh. of Windham, Petr’s. 82 Maine, 452, Shepley, C. J., persons injured have a right to the same available length of time to make their applications as if no appeal had been taken.</p> <p>The case of Levant v. Go. Gom. 67 Maine, 429, does not, it seems to me, hold that matters which should appear of record can be proved by evidence aliunde. It specifically declares that "if the original record be defective it may be amended by the tribunal in accordance with the facts at any regular session.” No evidence aliunde is received except upon the question of discretionary action, and when necessary to show what certain rulings complained of were founded upon.</p> <p>cited: 30 Maine, 351; 31 Maine, 578; 32 Maine, 450; 36 Maine, 74; 65 Maine, 1.60; Levant v. Go. Gom. 67 Maine, 429.</p>

<p>On exceptions.</p> <p>Trespass against certain of the municipal officers of the town of Madison, and their employees, for removing plaintiff’s fence from the limits of a way in that town.</p> <p>We claim that if there be nothing done by the town for six years to indicate a purpose to take that additional rod, that it cannot be done afterwards. E. S., c. 18, § 36.</p> <p>The land owner is to have damages when the land is taken and not till then. E. S., c. 18, § 7.</p> <p>We ask, then, how there is any taking if the road as used is exactly as before the location, and the land owners still occupying up to the fences which mark the bounds of the three rod road.</p> <p>The real facts in this case are that the road was never legally located. That portion in Cornville was proceeded against by certiorari, that fact ascertained, and every one thereupon supposed it would not do to build the four rod highway, — to go outside of the old three rod road. Gornville v. Go. Oom. 33 Maine, 237; State v. Gornville, 43 Maine, 427; State v. Madison, 59 Maine, 538; S. C., 63 Maine, 546.</p> <p>So far as the opening of the four rod road is concerned, we say, in the language of Tenney, C. J., in State v. Gornville, 43 Maine, 428, "It cannot be said, with propriety, that the road has been opened as a whole when nothing at all has been done to that portion which constitutes three-fourths of it, (in this case one-fourth) and the remainder was a road open and used before as such.”</p> <p>The same rule applies to land taken at the side of a road as that taken at the end of the same. There is no difference in principle. The only question is one of fact. Has the location been abandoned? The mere use of the old road, continued as before, does not, necessarily, constitute an opening — such as entering upon and taking possession of that outside the old road for the purpose of construction and use — so far as the new portion is concerned, whether that new portion lies along side or either end of the old road. Pet. of Mt. Vernon, 37 N. H. 515.</p> <p>Such a construction should be given the statute as will protect the rights of owners of real estate, who have purchased property by the side of the highways, the bounds of which are so uncertain that they have actually bought and paid for land which is really within the limits of the highway. Danvers v. Essex Go. Oomrs. 6 Pick. 20.</p> <p>Exceptions do not lie because the plaintiff was not aggrieved by the ruling complained of. Stale v. Pike, 65 Maine, 111; Soule v. Winslow, 66 Maine, 451; Webber v. Read, 65 Maine, 565 ; Kilpatrick v. Hall, 67 Maine, 543 ; Boothby v. Woodman, 66 Maine, 387; Decker v. Somerset Ins, Go. 66 Maine, 406. '</p> <p>A highway differs from a town way. Waterford v. Co. Com. 59 Maine, 453 ; State v. Bigelow, 34 Maine, 246 ; R. S., e. 18, § § 1, 14.</p> <p>Trespass cannot be maintained. Whittier v. McIntyre, 59 Maine, 145; Kimball v. Rockland, 71 Maine, 140; Perley v. Chandler, 6 Mass. 454; Angelí, Highways, 398; State v. Kittery, 5 Maine, 259.</p>

<p>On exceptions from the superior court.</p> <p>Assumpsit against Fred N. Dow, Ossian Bay and Charles E..</p> <p>Benton, on the following promissory note.</p> <p>"$7,000. Lancaster, N. H. Oct. 12, 1883.</p> <p>"One year after date I promise to pay to the order of myself . seven thousand dollars, at the National Bank of Derby Line, Vt.</p> <p>"Value received. $416.50</p> <p>$6,583.50</p> <p>Jacob Benton.”</p> <p>"No. 3286. Due Oct. 12-15.</p> <p>(Indorsed on back.)</p> <p>"Pay to the order of Charles E. Benton, Ossian Ray and Fred '"N. Dow, jointly. Jacob Benton.</p> <p>Charles E. Benton.</p> <p>Ossian Ray.</p> <p>Fred N. Dow.”</p> <p>'"Rec’d Sept. 30, 1884. One hundred and forty-one and 30-300 dollars by O. Ray, $141.30.</p> <p>""Rec’d Jan’y 31, 1885. Int. to Jan’y 15, 1885.”</p> <p>¡Duly protested.</p> <p>cited: Story, Prom. ¡Notes § 419, note 2; Williams v. Smith, 48 Maine, 138 ; Berry w. -Pullen, 69 Maine, 103; Mariners’ Bank v. Abbott, 28 Maine, 380 ; Page v. Webster, 15 Maine, 249 ; Bank v. Rollins, 13 Maine, 207; Bank v. Ives, 17 Wend. 501; Creath's Adm’r v. Sims, 5 How. 207 ; Potter v. Green, 6 Allen, 444 ; Reynolds w. Ward, 5 Wend. 501; McLemore v. Powell, 12 Wheat. 554; Halstead v. Brown, 17 Ind. 202; Oxford Bank v. Lewis, 8 Pick. 457; Blachstone Bank v. Hill, 10 Pick'. 132; Whitney w. So. Paris Mf’g. Co. 39 Maine, 316; Nightingale v. .Meginnis, 34 N. J. (5 Vroom,) 461; Bank v. Parsons, 138 .Mass. 53 ; Norris v. Crumney, 2 Rand. 328 ; Sohier v. Loring, <6 Cush. 538 ; Hutchins v. Nichols, 10 Cush. 300; Morse v. Huntington, 40 Yt. 488 ; Bank v. Goss, 31 Yt. 315 ; Dixon v. Dixon, 31 Yt. 450.</p> <p>It cannot be that the bank intended to say, "we will extend provided the extension is illegal and inoperative and of no effect upon the parties to the note;” the bank very well knew the law; as every one is presumed to know it. It understood that such extension without the consent of the indorsers would operate as a discharge; and that if it chose to make such extension without the consent of the indorsers it took its chances of being able to recover from the indorsers. It is clear that the word "transpires” refers to some future event or fact which should effect the financial standing of those whose names were on the note; the word " transpires” being used in its popular, although incorrect significance. The letter does not say "provided nothing in this shall be construed to affect our rights on the indorsers,” but it refers to an event to " transpire.” It canuot be argued that anything has actually " transpired” to affect such credit or financial standing; the bank waited the thirty days and even more than sixty days. It cannot be reasonably argued that the language of the letter reserved the rights of the bank against the indorser. The language cannot be construed into an agreement to reserve rights, such as is shown in the following cases where the court held that a discharge was not effected. Potter v. Green, 6 Allen, 442 ; Hutchins v. JSTichols, 10 Cushing, 299; Sohier v. Loring, 6 Cushing, 537.</p> <p>The law expressly declares that if any reservation of rights against the sureties is made it must be in "clear and unambiguous terms.” Boultbee v. Stubbs, 18 Yes. 20 : Rees v. Berrington, Leading Cas. in Eq. p. 717.</p> <p>The bank should not be excused from the legal consequences of the extension they suggested and granted. When the bank officers took the responsibility of enlarging the time of payment they altered the contract; they changed the liability of the surety ; and that surety has a right to say that this is not the contract into which he entered. Greely v. Dow, 2 Met. 178. Byles on Bills, 55, § § 247, 250, 253, and notes and cases cited.</p> <p>The promise to extend was based upon a legal consideration. That consideration consisted in the usurious interest paid. The interest due up to Jan. 15, 1885, was about $102, and that sum is acknowledged by the indorsement of interest on the back of the note; but at least $17 more was paid. That overplus is clearly a legal consideration for the extension of time. There can be no doubt but that the actual payment of usurious interest, .as in this case, constitutes a consideration. This is assumed in Berry v. Pullen, 69 Maine, 101, and shown in cases therein cited ; of course an executory contract to pay such interest would not be a consideration ; but in this case the interest was actually-paid, but was not endorsed on the note; only the legal " interest to Jan. 15, 1885,” appears on the back of the note. It is no. answer to say that the $17 may be recovered back under the laws of Vermont and that it has been tendered back in this suit.</p> <p>It may be argued in behalf of the plaintiff bank that the recent case Haydenville Bank v. Parson, 138 Mass, page 53, is a case of import in their favor ; and it is true that the court has gone as far in that case as it has ever gone in that direction. But it must be remembered that the usury law of Vermont is entirely different from the interest law of Massachusetts, any rate being allowed in Massachusetts if expressed in the contract, whereas in Vermont any sum over six per cent may be recovered back. The case at bar shows the payment of money not due ; and such payment is clearly a benefit to the creditor and an inconvenience to the debtor; and in both inspects is á good consideration for a promise. Greely v. Bow, supra; Bees -v. Berrington, supra. De Golyar on Guarantees, p. 407, et seq., and cases cited. Story on Prom. Notes, § § 413-421, and cases cited.</p> <p>The subject of usury as a consideration for an extension of time is fully cohsidered in Vary v. Norton by the U. S. C. C., Michigan, 6 Federal Reporter, 808; this decision fully appears in Myer’s Federal Decisions, vol. 3, page 614, § 552. See also Turrill v. Boynton, 23 Vt. 142; Burgess v. Bewey, 33 Vt. 619; see also Gardiner v. Gardiner, (23 S. C.) 25 Am. L. Reg. 412.</p>

On report. Assumpsit on account annexed brought to enforce a lien on a dwelling house and lot on Oak street at Stevens’ Plains in the town of Deering. The opinion states the facts as found by the court from the evidence and admissions. This is a case of a definite lien and for a particular work” within the decision of Baker v. Fessenden, 71 Maine, 292.

On exceptions and motion for new trial. Libel for divorce. The opinion states the points and material facts. cited: Ford v. Ford, 104 Mass. 198; Mayhew v. Sullivan M. Co. 76 Maine, 100; Com. v. Bean, 137 Mass. 570 ; Oakland Ice Co. v. Maxcy, 74 Maine, 294; Tarr v. Smith, 68 Maine, 97 ; Harriman v. Sanger, 67 Maine, 442; Millett v. Marston, 62 Maine, 477; 2 Whar.

On exceptions from superior court. Assumpsit on account annexed. The defendant did not appear, but Charles W. Hilton, a subsequent attaching creditor, appeared by leave of court and defended. A father is bound to support his infant children. 2 Ken. Com. *191; 1 Chitty, Contr. 213 ; 1 Parsons, Contr. 307; 2 Bish. Mar. and Div. § 528; Stanton v. Wilson’s Exrs. 3 Hay, 37 (3 Am.

<p> Contract. </p> <p>An action cannot be maintained upon a written promise to pay a certain sum of money on demand, or guarantee the payee tbe use of a certain farm during the life-time of the promisor, when it appears that the payee voluntarily left the farm without cause.</p>

On report. The opinion states the case and facts. The real estate of a person intestate descends, being subject to the payment of debts, in equal shares to his children, and to the lawful issue of a deceased child, lyy right of representation. R. S., c; 75, § 1; Kimball v. Sumner, 62 Maine, p. 305; Heald, Administrator, v. Heald, 5 Maine, 387. Was Joseph Tolman, by virtue of the mortgage, possessed of real estate in said farm? What is real estate?

<p> Marriage, a consideration for a deed. Fraud. </p> <p>Marriage is a good and valuable consideration for a conveyance of land.</p> <p>The grantee under such a conveyance is not affected by any fraudulent intent of the grantor, of which she was ignorant.</p> <p>A levying creditor of the husband must in such case show the grantee’s notice.</p>

<p> Towns. Note given bg selectmen. Town meeting. Warrant. </p> <p>To entitle ene to recover of the town money borrowed by a majority of the selectmen without prior express authority,.for which a towu note was given, the plaintiff must show that the money was paid into the town treasury, or applied to the payment of legal liabilities of the town, and that the town had ratified the action of the selectmen.</p> <p>An article in a warrant for a town meeting, to see if the town would vote to pay a number of town notes, specifying each note by giving name of the payee, amount and date, is sufficient.</p> <p>Where all the voters and officers of a town meeting by unanimous consent, but without a vote, go out into the open air, in front of the place of meeting, where they could more conveniently vote upon a proposition, and there vote without objection on the part of any person, the action is legal. Where a town has in town meeting by vote ratified the doings of the selectmen in borrowing money and giving a note therefor, in behalf of the town it cannot at a subsequent meeting rescind such a ratification.</p>

On report upon agreed statement. Writ of entry to recover a strip of land half a rod in width across the Lorenzo Keyes farm in Jay, from the easterly side of the railroad. This case is to be distinguished from Bonney v. Morrill, 52 Maine, 252. In that case, the grantor bounds his grantee by land now or formerly owned by Isaac Bonney,” without in any way stating or suggesting where said Bonney’s boundary line was.

On exceptions to the ruling of the court in overruling the defendant’s demurrer to the complaint. An appeal from the decision of a trial justice on a complaint and warrant for fishing for and catching lobsters in violation of law. cited : State v. Baker, 34 Maine, 52; Moody v. Hinkley, 34 Maine, 200; State v. Hanson, 39 Maine, 337.

On report. Bill in equity to dissolve the defendant corporation and obtain an order for distribution of the fund remaining on hand. In Garitón v. Southern Mut. Ins. Go., decided by the Supreme Court of Georgia, June 10, 1884, reported in the Reporter July 16, 1885, the court hold, That a mutual insurance company is based on the idea that each of the assured becomes one of the assurers, and thereby becomes interested in the profits, and liable for the losses.

On report from superior court. The sum and substance of defendant’s brief is based upon the assumption, that the performance of the condition of the sale was waived by the vendor.

<p>On report.</p> <p>Bill in equity,</p> <p>cited; Qerrish v. Towne, 3 Gray, 82; Stearns v. Hall, 9 Cush. 31; Blood v. Hardy, 15 Maine, 61; McClellan v. McClellan, 65 Maine, 500; 1 Perry, Trusts, § § 86, 81, 82; Brown, Stat. of Frauds, § § 97, 111; Lewin, Trusts, 201; Bogan v. Walker, 1 Wis. 527 ; Faxon v. Folvey, 110 Mass. 392; Haskell v. Hervey, 14 Maine, 196; Jones, Mortgages, § 248; Kerr v. Gilmore, 6 Watts, 405; Murphy v. Galley, 1 Allen, 107; Campbell v. Dearborn, 109 Mass. 140; Jones, Mortgages, § 265 ; Kent’s Com. *144 note d (12 ed) ; Henry, v. Davis, 1 Johns. Ch. 40; Stinchfield v. Milliken, 71 Maine, 567 ; Gorvell v. Ilall, 22 Mich. 377 ; Truck v. Lindsey, 18 iowa, 504; Peugk v. Davis, 96 U. S. 332.</p> <p>Up to the time of the production of the papers by Mr. McCrillis, defendant’s counsel had regarded the transaction between the mother and son as similar to the transactions in the case Hunnewell v. Lane, 11 Met. 163, where a daughter had been persuaded by her father to place in his hands some thousands of dollars worth of property to protect it against her inabilitj’ to take care of it, and upon the death of the father, and his estate being represented insolvent, a bill was brought by the daughter for a conveyance, and it was decreed.</p> <p>The letters of Mrs. Hinckley to Samuel, are largely relied upon to maintain the bill. We submit that there is nothing in them inconsistent with our view of trust for the security of property for the sou, and an equitable mortgage for the security of the debt due from the son to the mother.</p> <p>It is not denied that in case of an instrument absolute upon its face, with no instrument of defeasance back, parol testimony might be admissible to prove, that it was really intended as security for a debt, but, when, as in the case at bar, there is an instrument of defeasance, free from any imputation of fraud, accident or mistake, unambiguous in its terms, parol evidence cannot be admitted to vary, add to or contradict the written instrument.</p> <p>This doctrine is fully discussed in Campbell v. Dearborn, 109 Mass. 140. Likewise in Elder v. Elder, 10 Maine, 80, also Glass v. Hulburt, 102 Mass. 24; Chadwick v. Perkins, 3 Maine, 399.</p> <p>The case Woolen v. Hearn, reported in White and Tudor’s Leading Cases in Equity, vol. 2, part. 1, p. 920, lays down the doctrine, which seems to be founded on good reason that "though a defendant, resisting a specific performance, may go into parol evidence to show that by fraud the written agreement does not express the real terms, a plaintiff cannot do so, for the purpose of obtaining a specific performance with a variation.”</p> <p>The testimony of Samuel B. Hinckley is not admissible under the first of the statutes of this state relating to evidence in cases in which an executor or administrator is a party. R. S., c. 82, § 98, sub. § 11; Hall v. Otis, 77 Maine, 122; Dwarris on Statutes, p. 199.</p> <p>The control of the question of the costs of these proceedings is wholly with the court. We cite 2 Perry on Trusts, § 892, 899, 928; 1 Perry on Trusts, § 245; Stilson v. Leeman, 75 Maine, 412.</p>

On report, upon agreed statement of facts, from the superior court. Case for the value of four bales of woolen rags of the value of of §176.41, shipped by William F. Allen and Co. of Philadelphia, to William Beatty of Gray, Maine. Soon after Allen and Co. parted with the goods they learned that Beatty was insolvent, and notified the station agent of defendant company who had charge of receipts and delivery of freight at Gray, Maine, to stop the transit of the goods.

On report. Bill in equity by the executor of the will of William F. Howland, late of Eden, Maine, to obtain a construction of the will, against the Union Society of Savannah, Ga., and Anna Marion… Held: that S. was entitled to one-third of the proceeds of such sale. Olarlc v. Packard, 9 Gray, 417.

On exceptions from the superior court.. An action on the case for creating a nuisance. At the return term the defendants filed a demurrer to the declaration, which was joined. The presiding justice sustained the demurrer and. adjudged the declaration bad. To this ruling the plaintiff alleged exceptions. The opinion, states the point. A demurrer admits all such matters of fact as are sufficiently pleaded.

<p>On report.</p> <p>Assumpsit on an account annexed.</p> <p>It was agreed that there was due the plaintiffs the sum of nine hundred and eleven dollars and ninety-one cents and interest from May 22, 1884, the date of the writ, unless the claim sued upon was barred by the discharge in insolvency.'</p> <p>The facts affecting the discharge in insolvency are sufficiently stated in the opinion.</p> <p>cited : R. S., c. 70 § 62; Hophins v. Bilis, 1 Salk. 110; Colkett v. Freeman, 2 T. E. 59 ; Hilliard, Bankruptcy, 24; Robinson, Bankruptcy, 95 ; Blodgett v. Hildreth, 11 Cush. 311; Paige v. Loving, 1 Holmes, 275; In re Goldschmidt, 3 Bank. Reg. 164.</p> <p>The oath required of the debtor before he can receive his discharge under composition proceedings is as follows, viz. : "I solemnly swear that I have not removed, concealed or secreted any money, paper, securities, effects or property, real or personal with intent, purpose or expectation of receiving, directly or indirectly, any benefit or advantage to myself, and that I have not changed or falsified any of my books of account, deeds or papers relating to my estate, and that I have not sold, pledged, conveyed or transferred any of my property or estate in anticipation of insolvency, or made any conveyance, mortgage, pledge, transfer or payment to any creditor or caused or procured any attachment of my property for preferring any of my creditors; and that I have not directly or indirectly, given to any creditor or other person, any compensation or promise of reward, except reasonable counsel fees for services or influence in effecting a compromise with my creditors, and that my assets and liabilities are correctly stated in the schedule hereto annexed and signed by me.” R. S., c. 70, §62.</p> <p>Upon taking this oath the debtor, if he produce the composition paper required by the same section, receives his discharge, but, "such discharge is not valid if the signature of any creditor has been obtained by fraud, or if any material statement contained in such affidavit or schedule is false, to the knowledge of the debtor making the same, and any creditor may within two years, sue for and recover the balance of his claim or debt against such debtor.” R. S., c. 70, § 62.</p> <p>We claim that the reasons which might be applicable to a discharge obtained in the regular course of insolvency, as set forth in § 46, c. 70, are not applicable to this case, as the method of proceeding to get the discharge annulled is entirely different. Ex parte Elaines; Inre Hoyt, 76 Maine, 394.</p> <p>There was no secretion or concealment. The legal title remains in the insolvent until the assignment is made. Hampton v. Rouse, 22 Wall. 263.</p> <p>The term "concealment” in the insolvent law implies something wilfully intentional. In re Wilson, 6 Law Rep. 272 ; Dresner v. Brooks, 3 Barb. 429.</p>

<p>On report.</p> <p>The opinion states the case.</p> <p>The judgment was conclusive upon the defendant. Cooly v. Patterson, 52 Maine, 472; Dorr v. Davis, 76 Maine, 301; Chamberlain v. Preble, 93 Mass. 373 ; Boston v. Worthington, 10 Gray, 498 ; Train v. Gold, 5 Pick. 380 ; Littleton v. Richardson, 34 N. H. 187; Stone v. Hooker, 9 Cowen, 154; Lowell v. Parker, 10 Met. 315.</p> <p>The docket entries are evidence of the judgment. Read v. Sutton, 2 Cush. 123; Leathers v. Cooley, 49 Maine, 342; Pruden v. Alden, 23 Pick. 184; Longley v. Vose, 27 Maine, 179 ; Central Bridge Corp. v. Lowell, 15 Gi’ay, 122; Benedict v. Catting, 13 Met. 186; Tillotson v. Warner, 3 Gray, 577.</p> <p>The notice was sufficient. Miner v. Clark, 15 Wend. 426; Rogers v. Kneeland, 13 Wend. 123; Stone v. Hooker, 9 Cowen, 154; Hamilton v. Cutís, 4 Mass. 352.</p> <p>In Props. Brattle Square Church v. Bullard, 2 Met. 366, the court say : "The plaintiffs are bound to prove that such a title has been established, by legal evidence. To do this, they must give in evidence the common proofs of title, or, a judgment to which the defendant was party or privy. It comes back therefore to the same question, whether this was such a judgment.”</p> <p>In Hall v. Thayer, 12 Met. 136, the court say; "The defendants promised and agreed to indemnify and save harmless the said committee (the plaintiffs) in proportion to the number of shares for which they had respectively subscribed. Upon the contract no cause of action arose against the defendant, at least until an action was instituted and.a judgment rendered thereon against the committee; and no substantial cause of action, that is, no right to recover the amount of such notes would exist, until those notes were actually paid.”</p> <p>Recovery of judgment and execution, without actual payment no breach of a contract to indemnify and save harmless. Hussey v. Oollins, 30 Maine, 190; Wicker v. Iloppock, 6 Wall. 99.</p> <p>The only part of that count which could possibly have any application to the case at bar is that "for money paid by the plaintiff for the use of said defendant at her request.” Can such a count be maintained upon a written contract of indemnity? We submit that it cannot. No money paid by the party holdiug a written indemnity from a third person, can be considered as paid at the request of such third person. That is the very thing he does not want done ; and the very thing he indemnifies the other for not doing. But if compelled to do it by an outstanding-better title, then his indemnity comes in to protect him. The very word "indemnity” excludes ex vi termini, the idea of an implied promise on the part of the party indemnifying. And the party indemnifying cannot recover upon a count for money paid and rely upon an implied request, but must declare specially upon his written contract of indemnity. These questions are fully considered and so decided in Brown v. Fades, 139 Mass. 21; Toussaint v. Martinnant, 2' Term R. 101.</p> <p>But for want of the proper papers and vouchers which the plaintiff in that action should have filed in court but never did, that court could not, and never did enter any judgment whatever in the suit of John Dorr v. Luther Davis, referred to in this rescript. Rockland Water Oo. v. Pillsbury, 60 Maine. 425 ; Leathers v, Dooley, 49 Maine, 337.</p> <p>"A record,” said the court in 8ayles v. Briggs, 4 Met. 423, "is a memorial or history of the judicial proceedings iu a case commencing with the writ, or complaint, and terminating with the judgment; and it must, therefore, be precise and clear, containing proof within itself of every important fact on which the judgment rests, and it cannot exist partly in writing and partly in parol. Its allegations and facts are not the subject of contradiction.”</p> <p>"The record,” said Sheplev, C. J., in delivering the opinion of this court in Holden v. Barrows, 39 _Maine, 136, "is not liable to be explained or contradicted by parol testimony, or by extraneous documents. And a copy of the record regularly authenticated, is the legal and best evidence of it.” S. P. in Central Bridge v. Lowell, 15 Gray, 107.</p> <p>Excluding, therefore, under the stipulations of this report all evidence offered not legally admissible, and the only proof of any alleged judgment against this plaintiff must be confined to the extended record. That not only fails to prove any judgment, but proves affirmatively that none was ever recovered. Bode-land Water Co. v. Pillsbury, 60 Maine, 425, before cited; Hoyes v. Hewmardi, 1 Allen, 51.</p> <p>There being no proof of any judgment against this plaintiff in favor of a third party having a better title than the defendant and neither allegation nor proof that such third party had in fact a better title, this action cannot be maintained under any form of declaration. Foster v. Pierson, 4 D. &. E. 617 ; Hamilton v. Cutts, 4 Mass. 349; Props, of Brattle Square Churdi v. Bullard, 2 Met. 363 ; Hall v. Thayer, 12 Met. 131; Kelly v. Dutch Churdi, 2 Hill, 105. And it deserves consideration whether the defendant does not clearly show affirmatively the better title in herself. Somerville v. Hamilton, 4 Wheat. 230; Lathrop v. Grosvenor, 10 Gray, 52.</p>

On report. The opinion states the case. Where land is bounded by a highway, the center line of the way is the boundary. 3 Wash. Real Prop. 635 ; Johnson v. Anderson, 18 Maine, 76; Bangor House v. Brown, 33 Maine, 309 ; Id. 502; Warren v. Blake, 54 Maine, 283 ; Webber v. Overlook, 66 Maine, 177; Oxton v. Groves, 68 Maine, 3 71; 45 Maine, 9 ; 59 Maine, 105 ; 13 N. H. 584; 45 Maine, 13; Hunt v. Rich, 38 Maine, 195.

On exceptions. This was an action of trespass wherein the plaintiff claimed damages for the erection of a weir by defendant on the flats connecting defendant’s island with plaintiff’s land on the main.

<p>On report.</p> <p>Four actions between the same parties were submitted by the report on the same facts. The first action was assumpsit on five promissory notes of ten thousand dollars each, signed by John F. Mills, and indorsed by the defendants ; the second action was assumpsit on two promissory notes of forty-six hundred and thirty-nine dollars each, signed by W. E. Plummer, and indorsed by the defendants, and on three promissory notes of §4,659.78, $4,675.31 and $4,658.61, respectively, signed by Chas. W. Clement and indorsed by the defendants; the third action was assumpsit on seven promissory notes of $4,867.50, $4,754.63, $4,516.96, $3,996.59, $4,439.40, $4,713.61 and $4,916.84, respectively, signed by W. E. Plummer and indorsed by the defendants, and on three promissory notes of $4.411.21, $4,362.19, and $4,409.60, respectively, signed by John F. Mills & Co. and indorsed by the defendants ; the fourth action was assumpsit on three promissory notes of $4,137.15, $4,205 and $4.115.20, respectively, signed by Charles H. Ward, and indorsed by the defendants, and on four promissory notes of $2,997.87, $4,481.96, §4,694.83 and §5,897.43, respectively, signed by Charles W. Clement, and indorsed by the defendants, and also on two other promissory notes of §5,316.29 and §5,132.26, respectively, signed by L. J. Orcott and indorsed by the defendants.</p> <p>on the validity of the protest, cited : Pattee v. McCrillis, 53 Maine, 410; Mass. Stat. 1882, c. 77, § § 8-22; Daniel, Neg. Instruments, § 1017; Malden Bank v. Baldwin, 13 Gray, 154; Allen v. Avery, 47 Maine, 287 ; McQoun v. Walker, 49 Maine, 419 ; Bradley v. Davis, 26 Maine, 51; King v. Crowell, 61 Maine, 244 ; Gilbert v. Dennis, 3 Met. 495; Warren v. Gilman, 17 Maine, 360; Freeman's Bank v. Perkins, 18 Maine, 292; Flint v. Rogers, 15 Maine, 67 ; Lord v. Appleton, 15 Maine, 270; Lambert v. Chiselin, 9 How. 552 ; Saco Nat. Bank v. Sanborn, 63 Maine, 340; Grafton Bank v. Cox, 13 Gray, 503 ; Requa v. Collins, 51 N. Y. 144; Bank of Utica v. Phillips, 3 Wend. 408 ; 1 Greenl. Ev. § 40; 33 Alb. L. J. 478 ; Abb. Trial Ev. 433, 434; Bank v. DeGroot, 7 Hun, 210; Pearce v. Langfit, 100 Penn. St. 507; Wood v. Callaghan, 28 N. W. Eep. 162; Berridge v. Fitzgerald, L. E. 4 Q. B. 639 ; Fastern Bank v. Brown, 356; Harrison v. Bailey, 99 Mass. 620; Keyes v. Winter, 54 Maine, 401; Cornor v. Pratt, 138 Mass. 446 ; Byles, Bills, (7 Am. ed.) 304; Bank of Com. v. Law, 127 Mass. 72; Fuller v. Hooper, 3 Gray, 334.</p> <p>No protest was required since the notes were for the accommodation of the indorsers. Daniel, Neg. Inst. § 1086 el seq. ; Blenn v. Lyford, 70 Maine, 149.</p> <p>Continuance is a matter of discretion. E. S., c. 70, § 51; c. 82, § 54; Schwartz v. Drinkwater, 70 Maine, 409 ; Barker v. Haskell, 9 Cush. 222.</p> <p>Notice mailed to the defendants at 268 Purchase Street, Boston, after they had made an assignment of all their property to F. A. Wyman, and abandoned the premises to him, was an insufficient notice to charge the defendants as indorsers of the plaintiff’s notes.</p> <p>Because it is held that notice to the voluntary assignee of an indorser is insufficient to charge the indorser Avith liability. House, Assignee, v. Vinton Co. Hat. Bank, (Sup. Court of Ohio, January 16, 1885,) Reporter, August 26, 1885, p. 247.</p> <p>It Avas likewise held that demand made at the maker’s place of business, then occupied by his assignee, was insufficient in Armstrong v. Thurston, 11 Md. 148, and Benedict v. Caffe, 5 Duer, N. Y. Superior Court, 226.</p> <p>In Granite Bank v. Ayers, 16 Pick. 392, the court nonsuited the plaintiffs, on the ground that no proper demand had been made upon the makers, and intimated that no proper notice had been given to the indorsers.</p> <p>In the case of the Bank of America v. The Shawn, 142 Mass. 290, the decision in the appellate court was upon the facts as already found, and they differed materially from the facts in the case at bar.</p> <p>Deposit in street letter boxes was, under the circumstances, insufficient notice to charge the defendants as indorsers. The ordinary rule is, that where personal notice is given at an indorser’s place of business, it must be given in business hours, and, "if left after these hours, it Avill not be deemed sufficient,” &c., &c. Story on Prom. Notes, § 315.</p> <p>The rules in the United States Courts, to stay all suits, whether such as Avould be barred or not by discharge (unless in cases of inexcusable laches of the debtors), is imperative. R. S., U. S., § 5106; In re Rosenberg, 3 Benedict, 14; In re Chirardelli, 1 Sawyer, 343; Ray v. Wight, 119 Mass. 428.</p> <p>At the conclusion of the bankruptcy proceedings, if the claim was secured by a prior attachment or other lien, the courts under the United States practice render, in case the debtor Avas discharged, only a special judgment to be satisfied out of the debtor’s estate. Doe v. Childress, 21 Wall. 642; Peck v. Jenness, 7 How. 612; Bowman v. Harding, 56 Maine, 559 ; Leighton v. Kelsey, 57 Maine, 85 ; Franklin Bank v. Batch-elder, 23 Maine, 60; Kittredge v. Warren, 14 N. H. 509; Matter of Rowell, 21 Verm. 620; Johnson v. Collins, 116 Mass. 392; Stockwell v. Silloway, 113 Mass. 382; Davenport v. Tilton, 10 Met. 320; Bates v. Tappan, 99 Mass. 376.</p> <p>In the state insolvency courts of Maine, although customary to stay suits pending insolvency, the rule is not imperative, but discretionary ; hence, in case of claim which would not be barred, the Supreme Court rightfully refused to stay proceedings, because no damage could ensue to any parties thereby. Schwartz v. JDrinlewater, 70 Maine, 409.</p> <p>In those cases, under the insolvency laws where plaintiff’s claims are such as would not be barred by the debtor’s discharge, it is held that his person is exempt from arrest, the court rendering a special judgment only. Ohoteau v. Richardson, 12 Allen, 3(35.</p> <p>The reason why special judgments are allowed after the debtor’s discharge, is thus stated by Tenney, J., in Franklin Rank v. Batchelder, 23 Maine, 65.</p> <p>If the judgment is rendered in this case pending the insolvency proceedings, it will create a new debt which will not be barred by the defendants’ discharge therein. Woodbury v. Perkins, 5 Cush. 86 ; Faxon -v. Baxter, 11 Cush. 35.</p> <p>The contract by Wyman for the purchase of these notes, made without the consent of the defendants, with condition of forfeiture both of agreement and of payments, was not within the purview of his powers as general assignee.</p> <p>Contracts by parties having limited powers in excess thereof are void. Williams v. Fvans, L. B. 1 Q. B. 352.</p> <p>In Smead v. Wiggins, 3 Ga. 94, which was a case of an agreement by plaintiff providing for payment in certain instalments, the second instalment not being made at the stipulated time, the court held the agreement forfeited (time being of the essence of the contract), but the plaintiff credited the payments upon his judgment.</p>

On report on agreed statement of facts. Writ of entry by which the plaintiff demands the homestead farm.of the late James McIntosh in Gorham.

On exceptions. Assumpsit against the administrator of the estate of Jason M. Carlton, deceased, on an account annexed for professional services from May, 1865, to May, 1882, amounting to $3639. The decedent died August 1, 1882. The administrator gave notice of his appointment October 31, 1882. The writ was dated February 28, 1885.

<p>On exceptions, and motion to set aside the verdict and for new-trial.</p> <p>These two cases were appeals to this court from awards of.' land damages, made by the county commissioners, to the corporations for the taking of a portion of their lands, and crossing, their railroads at grade, by the location of a county way three-rods in width.</p> <p>Both were tried together.</p> <p>Appellants asked the court to give the jury the following instructions as applicable to the claim of the Boston and Maine-Railroad, viz.:</p> <p>(1.) "A railroad corporation across whose road another railroad or a highway is laid out, has the like right, as all individuals- or bodies corporate, owning lands or easements, to recover-damages for the injury occasioned to its title or right in the land, occupied by its road, taking into consideration any fences or structures on the land, or changes in its surface, absolutely-required by law., or in fact necessary to be made by the corporation injured in order to accommodate its own land to new condition.”</p> <p>(2.) "The appellant is entitled to recover damages for taking-its land for the purposes of a highway, subject, however, to its. use for a railroad : for the expense of erecting and maintaining, signs required by law' at the crossing, for making and maintaining cattle guards at the crossing if necessary, and for the expense of flooring the crossing and keeping the planks in repair.”</p> <p>(3.) "In as much as the charter of the Boston and Maine .railroad is not subject to legislative power to 'amend, alter or ¡repeal’ acts of incorporation since March 17, 1831, appellant is Riot subject to the provision of R. S., c. 18, § 27, imposing ou ■it the duty of bearing the expense of building and maintaining so ¡much of this way as is within its limits without being entitled to ¡recover as land damages a sum sufficient to indemnify it for the •additional expense, thus by law put upon it by the location of •this way.”</p> <p>(4.) "While no damages for increase risk of accidents by ¡reason of the crossing can be given, yet if the present and actual walue of the entire property be diminished because of the expense ¡reasonably to be apprehended as inevitably incidental to such .accidents and claims arising therefrom, and the adjustment of, •or defence against such claims, this is an element of damages •which you may take into account.”</p> <p>The court declined to give any of the four, except as may be .contained in the charge to the jury.</p> <p>The points thus presented are concisely stated in the opinion.</p> <p>Instructions numbered (1) and (2) are quoted directly from .Massachusetts Central Railroad Company v. Boston, Clinton and Fitclibury Railroad Company, 121 Mass. 124, 126 ; and Old Colony and Fall River Railroad Company v. County of Plymouth, 14 Gray, 155, 163, (with such verbal changes as fits the language to the cases at bar,) and we assume will be conceded sound and applicable to the cases at bar, except so far as they may be affected by so much of the provisions of R. S., c. 18, § 27, as embodies the provisions originating in c. 214 of 1874, and modified by chap. 43 of 1878, that "when such way crosses the track at grade, the expense of building and maintaining so much of such way as is within the limits of such railroad shall be borne by the railroad company whose track is so crossed.”</p> <p>It was claimed at nisi prius, and may be claimed here, that this statutory provision has received full and final construction by this court in the late case, Portland and Rochester Railroad Company v. Inhabitants of Deering, Eastern Reporter, March 13, 1886, p. 98 ; 78 Maine, 61; and that the opinion in that case entirely covers the ground taken by appellants in these cases. Whatever may be conceded, so far as the appeal of the Orchard Beach Railroad Company is concerned, it is not admitted that this statute applies to the Boston and Maine Railroad.</p> <p>The statute was held valid, because that corporation (the Portland and Rochester Railroad) was admitted to be within the scope of the provisions of R. S., c. 46, § 23, originating March 17, 1831, subjecting all acts of incorporation subsequent to the last mentioned date to legislative alteration and amendment, "unless they contain an express limitation,” as also subsequent to the constitutional amendment above referred to.</p> <p>Exactly this limitation the original charter of the Boston and Maine Railroad does contain. The act of March 30, 1836, c. 179, § 17, provides, "That an act entitled 'an act concerning corporations,’ passed March seventeenth, in the year of our Lord one thousand eight hundred and thirty-one, shall not extend or apply to the company hereby incorporated.” Webb’s Railroad Laws of Maine, 86.</p> <p>The spirit, and, in part, the scope, of the protection afforded by this exemption, as well as the entire constitutionality of this, and similar statutory provisions, this court has declared in State v. Dexter and Newport Railroad Company, 69 Maine, 44. Nor will it be claimed that this exemption was lost by the corporation, in any way, until the act of 1871, c. 630. Webb, Id. pp. 90, 91.</p> <p>Some of the marks of distinction between an act or incorporation and a grant of additional power to an existing corporation, are pointed out in Stale v. Maine. Central Railroad, 66 Maine,. 488.</p> <p>It follows, then, the act of 1871 not being an act of incorporation, but merely an additional grant to an already existing corporation, that the question is not whether this act confers the exemption from the legislative power to "amend, alter, or repeal,” but whether this exemption, already one of appellant’s, powers or privileges, is, by the act of 1871, taken from it. It, is not a question of grant but of repeal. Vide State of Tennessee v. Whitworth, Tr. etc. 6 Sup. Ct. Eep. 649, citing a line of twelve decisions of the same court from Philadelphia and Wilmington Railroad Company v, Maryland, 10 How. 394, to Chesapeake and Ohio Railroad Company v. Miller, 114 U S. 185.</p> <p>As to the difficulties of any repeal of specific legislation by general, or of special provisions by general language, vide Webb v. Ridgeley, 38 Md. 364; Fitzgerald v. Champneys, 30 L. J. Ch. 782; Wilberforce on Stats. 318, 330, 331, 334; Maxwell on Interp. of Stats. 66; Dwarris on Stats. 530, 532.</p> <p>The power of the legislature to subsequently require a railroad corporation to construct any portion of a way not in existence at the date of its charter, can only be supported as an exercise of what has been termed the police power, which, being inalienable in its nature, the legislature must forever retain.</p> <p>One of the plain limitations it can never transgress, is the boundary line which surrounds vested property rights. Cooley, Constitutional Limitations, p. 572 ; Morawetz, Private Corporations, p. 443; Railroad v. Richmond, 96 U. S. 521, 528.</p> <p>Illustrations of the rightful exercise of this power, and impliedly, if not of its exact limit, certainly of a field clearly beyond this limit, quoad regulation of railroads at their intersection with public ways, may be found cited by Mr. Morawetz, in Private Corporations, § 443, et seq., including two domestic decisions ; viz. : Morris v. Androscoggin Railroad, 39 Maine, 273; Inhabitants of Veazie v. Mayo, 45 Maine, 560.</p> <p>A very full discussion of the nature and limits of the police power is found in Philadelphia, Wilmington, and Baltimore Railroad Company v. Bowers, 4 Houst. 506, 537. See also State v. Commissioners, 37 N. J. L. 240. Unless the land owner is paid such sum as leaves him in as good condition as he was before the taking, no sophistry can reconcile the process with dhe constitutional provision protecting private property against ■confiscation. Atlantic and Pacific Telegraph Company v. Chicago Rock Island and Pacific Railroad Company, 6 Bissell, 458, 161; Morawetz Private Corporations, 436.</p> <p>cited: State v. Bunker, 59 Maine, 366 ; Browne v. Bowdoinham, 71 Maine, 144; Bigelow v. Hillman, 37 Maine, 52 ; Estes v. Troy, 5 Maine, 368 ; Com v. Goupe, 128 Mass. 66 ; Fitchburg Railroad v. Page, 131 Mass. 395 ; Lawrence v. üfí. Fernon, 35 Maine, 100; Sprague v. TFaiie, 17 Pick- 309 : Hdnnum v. Belchertown, 19 Pick. 312; Walker v. Pierce, 38 Vt. 98 ; Richardson v. Pond, 15 Gray. 390; Ourtis v. Keesler, 14 Barb. 511; Webb’s RailroadLaws, 90, 87; Stetson v. Bangor, 60 Maine, 315 ; S. C. 73 Maine, 357 ; Memphis Railroad v. Gomr’s, 112 U. S. 609 ; 10 How. 416 ; 13 How. 71: 1 Blackf. 360, 436 ; 8 How. 569 ; Ohio and M. Railroad v. Wheeler, 1 Blackf. 286 ; Muller v. Dows, 94 U. S. 444; New Jersey v. Yard, 95 U. S. 104.</p>

On motion to set aside the verdict and exceptions from superior court. The verdict was for four thousand dollars. The facts are fully stated in the opinion. The evidence relating to the custom of sending men out of the shop to do work, elsewhere, was properly admitted. Woods’ Railway Law, Vol. 3, page 1488 ; Ohio & MississippiRy. Go. v. Oollarn, 73 Ind. 261; Pennsylvania Oo. v. Stoelke, 104111. 201.

On report. Bill in equity, heard ou bill, answer and agreed statement.

We regard this case as fully covered by the opinion of the Justices in 61 Maine, 601. There is no question as to any officer of the United States holding for a term of years, whether his term commences at the expiration of a previous term, or at the death of a previous incumbent, or on his removal. In either case the successor holds for the full term named in the statute. This is the settled practice, and the law ivas so expressed in the case of the navy agent.

On report on.agTeed statement. The opinion states the ease. Capital stock is defined as follows in the books.

On report of an action of trespass. The opinion states the material facts. Upon the payment into court of the amount decreed to be due upon the Bowler mortgages the legal title revested at once in plaintiff. B. S., c. 90, § 31.

On report. Debt on a replevin bond. The opinion states the material ' ¡facts. The plaintiff is entitled to maintain her action and recover nominal damages at any rate. Smith v. Whiting, 97 Mass. 316; S. C. 100 Mass. 122. The case at bar is unlike Pettygrove v. Hoyt, 11 Maine, 66. The plaintiff has sustained no damage by the non entry of the replevin writ. In fact if we are correct in our view of the case, she is the gainer thereby.

On exceptions and motion to set aside the verdict, and for new trial. An action of the case for damages sustained by the loss of the plaintiff’s two-horse team, while being driven by his driver across the ice field of the defendants, on the Penobscot river, near Bangor. The team was driven upon a place where the thick ice had been cut and removed by the defendants and the new ice had not attained sufficient thickness and strength to sustain such a weight.

On report. . The case is stated in the opinion. It was agreed between the parties before the drawing of the petition, that no question as to the right of a private citizen to petition in a public matter would be raised, and it is presumed that no such contention will be made. For the convenience of the court, however, in case any doubt of its authority to issue the writ prayed for, should arise in connection with that question, the following cases are cited.

<p> Tax. Qualification of assessors. </p> <p>A tax assessed by assessors who took tke oatb of office before the moderator of the town meeting at which they were elected is not valid.</p> <p>A moderator is not authorized to administer oaths in such cases.</p>

On report. The opinion states the case .and material facts. Emancipation is never to be presumed but must always be proved. Lowell v. Newport, 66 Maine, 78 ; Oldtown v. Falmouth, 40 Maine, 106.

<p>On exceptions.</p> <p>The opinion states the facts and case.</p> <p>cited: Shear. & Red. Negligence, § § 2, 20, 21, 59, 65, 79, 601, 594, 14; Add. Torts, § § 600, 585, 577, 592; Little v. Fossett, 34 Maine, 545 ; Healey v. Gray, 68 Maine, 489 ; Mason v. Thompson, 20 Am. Dec. 471; Beardslee v. Richardson, 25 Am. Dec. 596 ; Marlatt v. Levee, &c. Co. 29 Am. Dec. 468; Hill v. Owen, 35 Am. Dec. 124; Shaw v. Berry, 31 Maine, 478; Hewson v. Axon, 10 Am. Dec. 685 ; Hoyes v. Shepherd, 30 Maine, 179; Dickerson y. Rogers, 40 Am. Dec. 642; Savage M’f’g Co. v. Armstrong, 17 Maine, 34; Foster v. Dixfield, 18 Maine, 380; Lake v. Milliken, 62 Maine, 240; Ricker v. Freeman, 50 N. PI. 420.</p> <p>The defendants were bailees for plaintiff, and as such, were bound to ordinary diligence and responsible for ordinary negligence. They were bound to take only common and reasonable care of the plaintiff’s team. Story on Bailments, § 442, et seq.; Healey v. Gray, 68 Maine, 489; Burnham v. Young, 72 Maine, 273 ; Foster v. Fssex Bank, 17 Mass. 501; Maynard v. Buck, 100 Mass. 47.</p> <p>" Ordinary care ” means such care as men of ordinary sense, prudence and capacity would take, under like circumstances, in the conduct and the management of their own affairs. Shrews-bury v. Smith, 12 Cush. 177 ; Shaw v. B. & W. R. R. 8 Gray, 45.</p> <p>" Ordinary care ” has relation to the situation of the parties and the business in which they are engaged. Fletcher v. B. & M. R. R. 1 Allen, 9; Cunningham y. Hall, 4 Allen, 268.</p> <p>In the case at bar it cannot be contended that there was any want of ordinary care on the part of the defendants personally, for neither of them did any act in connection with the plaintiff’s team.</p> <p>The master is not responsible if the wrong done by the servant is done without his authority, and not for the purpose of executing his orders, or doing his work. Shearman & E. on Negligence, § § 62, 63 ; McManus v. (Jrickett, 1 East. 106 ; Lynch v. JSFurdin, 1 Ad. & Ell. N. S. 29 ; Wilson v. Peverly, 2 N. H. 548; Howe v. JSTewmarch, 12 Allen, 57.</p> <p>The act was not only not authorized by the defendants, nor in performing any duties in the defendants’ business, but was done against the reasonable rules of the defendants, and in defiance of the protest of their authorized employee. Johnson v. Barber, (111.) 50 Am. Dec. 416.</p> <p>" Negligence is not actionable unless it is the proximate cause of the injury complained of.” Shearman & E. § 9.</p> <p>" The true inquiry is whether the injury sustained was such as, according to common experience, and the usual course of events, might reasonably be anticipated.” Derry v. Flitner, 118 Mass. 134.</p>

On exceptions. Trover by the administrator of the estate of Mellen T. S. Ames for two pairs of steers and a shoat, all of the value of two hundred dollars. The writ was dated September 1, 1883. The plea was the general issue. The verdict was for one hundred and seventy-nine dollars and four cents. At the trial the defendants’ counsel called Deborah B. Ames, one of the defendants, to testify to facts happening after the death of the intestate.

On exceptions. The facts are stated in the opinion. Plaintiff is entitled to interest. Swett v. Hooper, 62 Maine, 54; People v. New York, 5 Cowen, 331; Philadelphia v. Rink, 4 Eastern Rep. 642. Held: that he could not recover from the county the fees to -which he would have been entitled but for his illegal suspension.” Gorham v. Boise Co. Com. 1 Idaho, N. S. 655, cited in 13 U. S. Digest, N, S. 692, Par. 36, 1883. B and M were opposing candidates for county treasurer.

On report. An action to recover damages sustained by the plaintiff by the negligence of the defendant in transmitting his telegraphic message to A. W. Yon Utassy, Philadelphia. The opinion states the facts. cited: Bartlett v. Western Union .Tel. Co. 62 Maine, 209 ; True v. International Tel. Co. 60 Maine, 9; Gray, Communication by Telegraph, § 105 ; May v. Weston Union Tel.

On exceptions from the superior court. Indictment charging that the defendant a certain building occupied by the said Reuben C. Hall, as a saloon, situated at the corner of depot square in said Gardiner, unlawfully did use for the illegal keeping and sale of intoxicating liquors.” At the trial a witness was called by the government, who testified that he was a deputy collector of internal revenue, and be refused to produce certain records, or memoranda called for.

On exceptions from superior court. Indictment as a common seller of intoxicating liquors, alleging a former conviction for same offence. To show former conviction the following record was introduced in evidence, omitting formal parts : /State v. Levi Lashus.

<p> Election of assessors by board of aldermen. Quo warranto. </p> <p>' After an. assessor lias been elected by a board of aldermen, and the ballot declared and recorded the board cannot at an adjourned session, held the</p> <p>next day, reconsider tlie election of such assessor and elect another person to that office.</p>

On motion to set aside the verdict. There were also exceptions in the case, which were not considered, a new trial having been granted on the motion. An action of the case for damages caused by the breaking up of rafts of logs owned by the plaintiffs while passing through the defendant’s dam across Piscataquis river at Howland. The verdict was for plaintiffs for $847.99.

On report. Bill in equity. Heard on bill, answer and proof. The bill, after setting out the proceedings in the court of insolvency, sufficiently stated in the opinion, contained the following allegation: Tenth.

On exceptions from superior court. The opinion states the case and material facts. The instructions of the presiding judge as to the right of a mortgagor in possession, undisturbed, to the crops when harvested, were correct.

<p> Ways. Gounty commissioners. Spec. Stat. 1885, c. 497. </p> <p>County commissioners have authority to locate a highway over and upon a previously existing town way whenever either terminus of such location connects with a highway, although the whole of such location is within the limits of one and the same town,</p> <p>When objections involving matters of fact are made at nisi prius to the acceptance of the report of a committee of appeal on the location of a highway and are overruled, and the report accepted and exceptions are taken to the ruling, the exceptions will be overruled unless the case finds that the facts were found in favor of the excepting party by the presiding justice.</p> <p>Spec. Act of 1885, c. 497, which provides that “A highway may be laid out, constructed and maintained in the manner provided in R. S., c. 18, across the tide waters of the Ogunquit river,” confers jurisdiction on the county' commissioners to make the location.</p>

On exceptions. The opinion states the case and material facts. In Boody v. McKenney, 23 Maine, 525, the court tells us what is a ratification or affirmance of a contract like this one; the court say “that when he has during his infancy sold and delivered personal property. ' When the contract was executed by his receiving payment, it is obvious, that he can receive no benefit by acquiescence; and it alone does not confirm the contract.

On report. Bill in equity, heard on bill, answer and demurrer, and proof.'. The facts are sufficiently stated in the opinion. That the plaintiff has a remedy at law cannot be presumed in a case of fraud, especially when a discovery is prayed for. Dwinal v. Smith, 25 Maine, 382; Taylor v. Taylor, 74 Maine, 589.

On exceptions. This is a writ of entry for the recovery of certain real estate situate in Cushing, entered at the March term, 1886. The defendant at the next September term moved that the action be dismissed unless the costs be paid of another suit which he alleged to be for the same cause of action, previously brought, and entered in this court. The two writs are of identical forms except as to date and term of court.

On exceptions. At the trial the defendant first filed a plea of misnomer, alleging that his name was Michael Mallia. The exceptions were to the ruling of the court in sustaining a. demurrer to that plea, but not for want of form. cited : Rex v. Shakespeare, 10 East, 83 ; Heard’s, Criminal Law, 169 ; 11 Gray, 320.

On exceptions from superior court. The exceptions were to a pro forma ruling of the court, overruling a demurrer to the following complaint. (Complaint.) State of Maine. Kennebec, ss. To Horace W. Stewart, Esquire, judge of our municipal court of Waterville, in the county of Kennebec.

On exceptions. The rule for prospective damages is laid down clearly in the case of Canal Co. v. Hitchings, 65 Maine, 142. In this case defendants cannot be made to remove the dam at the mouth of the pond, which stops the flow of water by the brook through the plaintiff's land and causes the injury of which she complains.

On exceptions from the superior court. Trover against the mayor and city marshal (H. T. Morse) of ‘ Augusta, for the value of two drums alleged to have been converted, August 20, 1885. The writ was dated November 16,. 1885. The drums were restored to the plaintiff after the commencement of the action, and the plaintiff at the trial claimed, only nominal damages for the detention of the drums.

<p> Railroads. Baggage. Common earners. </p> <p>The plaintiff being about to take passage on one of the defendant’s passenger trains, had his valise checked by the baggage master to go upon the same train as his personal baggage. The valise did not contain any personal baggage, but only merchandise for sale. Held, that the defendant was under no obligation to transport the valise, and was not liable for failure to transport it.</p>

<p>On report.</p> <p>Assumpsit for labor on a dwelling house under contract with defendant, Moore, for which a lien was claimed on the dwelling. William Paine, the alleged owner of the dwelling, appeared in obedience to a mandate of the court and was made a party to the action.</p> <p>The opinion states dhe facts.</p> <p>The proper certificate of the amount due the plaintiff was filed in the clerk’s office of the town of Monson. This was a sound foundation for the action. Ricker v. Joy, 72 Maine, 107.</p> <p>If the town clerk did not perfect his record in accordance with the facts he had the authority to amend it at a subsequent time. Welles v. Batlelle, 11 Mass. 477; Chamberlain v. Dover, 13 Maine, 466; Prince v. Skillin, 71 Maine, 361; Spaulding’s Practice, 325 and cases there cited.</p> <p>The officer’s return is conclusive in all actions except those in which the officer is a party. Wither ell v. Hughes, 45 Maine, 62 ; Darling v. Dodge, 36 Maine, 370; Dutton v. Simmons, 65 Maine, 586; Bott v. Burnell, 11 Mass. 165; Campbell v. Webster, 15 Gray, 28.</p> <p>In various ways Paine consented to this work. This makes the lien good against him although the contract was made with Colby Moore. Morse v. Dole, 73 Maine, 353.</p> <p>This case is within the rule laid down in Riñes v. Bachelder, 62 Maine, 95. The court here decided that one who has bargained for a pai’cel of real estate and failed to pay for it, having erected buildings thereon by the consent of the owners of the realty, such buildings are his personal property.</p> <p>An agreement giving a right to remove a dwelling house which is put upon the land of others may be implied upon circumstances; 14 Allen, 124.</p> <p>When the owner of land has given permission to another person to erect a building upon his land to be held and enjoyed as his personal property, if given before the building is erected, such building is not a part of the realty. Gibbs v. Fstey, 15 Gray, 587, and cases there cited; 4 Mass. 514; 5 Pick. 487; 8 Pick. 402; 8 Cush. 190; 1 Gray, 578; 7 Allen, 187.</p> <p>The case also shows that Paine made a written contract with Moore to build this house. When he did that he thereby empowered Moore to employ the necessary workmen to execute said contract, and the labor of such workmen was performed by the consent of Paine necessarily implied from the contract under which said house was built. Parker v. Bell, 7 Gray 429 ; Hilton v. Merrill, 106 Mass. 580; Worthen v. Oleaveland, 129 Mass. 573 ; Davis v. Humphrey, 112 Mass. 314.</p> <p>It seems that the land was sold by each and all the parties with a superadded agreement that buildings were to be erected. To sustain the positions that such dwelling house is personal property, I cite the following cases : First Parish in Sudbury v. Jones, 8 Cush. 190; Wells v. Banister, 4 Mass. 514;. Howard v. Fessenden, 14 Allen, 128; Russell v. Richards, 10 Maine, 431; S. C. 11 Maine, 374; Jewett v. Patridge, 12 Maine, 250; Osgood v. Howard, 6 Maine, 452; Riñes v. Bachelder, 62 Maine, 99; Dustin v. Qrosby, 75 Maine, 75; Davis v. Humphrey, 112 Mass. 313; Dame v. Dame, 38 N. H. 429.</p> <p>By c. 140, Public Acts, 1876, § 28, c. 91, R. S., 1871, was amended so that the laborer has a lien unless the owner gives written notice that he will not be responsible.</p> <p>The law of 1883, c. 91, § § 30 to 34 inclusive, of R. S. is essentially word for word with that of 1871 with the exception of the amendment of 1876.</p> <p>Bouvier says, that "consent is either express or implied. Express when it is given viva voce or in writing; implied when it is manifested by signs, actions, or facts, or by inaction, or silence which raise a presumption that the consent has been given.” Consent may be implied from such knowledge and acts as appear in this case. Morse v. Dole, 73 Maine, 353 ; Weeks v. Walcott, 15 Gray, 54; Hilton v. Merrill, 106 Mass. 530; Davis v. Humphrey, 112 Mass. 313; Worthen v. Oleaveland, 129 Mass. 573.</p> <p>cited : R. S., c. 91, § 31 ; Morse v. Dole, 73 Maine, 351; Westgate v. Wixon, 128 Mass. 306 ; Lapham v. Horton, 71 Maine, 88; Hemenway v. Cutler, 51 Maine, 407; Poor v. Oakman, 104 Mass. 309; Hinkley v. Black, 70 Maine, 473; Dustin v. Qrosby, 75 Maine, 75; 1 Wash. R. P. c. 1; Williams v. Amory, 14 Mass. 30; Wilson v. Bucknam, 71 Maine, 547 ; Crocker v. Pierce, 31 Maine, 183; Brett v. Thompson, 46 Maine, 480.</p>

On report. The opinion states the case and material facts. The substitution of one simple contract for another is not payment; the same debt continues in a different form. Frink v. Branch, 16 Conn. 275. Payment is the transfer of money from one person to another.” Kapalja and Lawrence, Law Diet. Yol. 2.

<p>Trustee process. Practice. B, 8., e. S6\ § 30.</p> <p>Where allegations under § 30, c. 86, R. S., are not filed till after the court has passed upoii the disclosure, and adjudged the trustee chargeable, they are not seasonably presented.</p> <p>St is then in the discretion of the court whether it Will allow the entry charging the trustee to be stricken off and open up the ease a,new for examination and consideration.</p>

<p>On exceptions and motion to set aside the verdict.</p> <p>The case and material facts are stated in the opinion. .</p> <p>The verdict will not be set aside. 22 Maine, 133 ; 28 Maine,. 477; 40 Maine, 28 ; 36 Maine, 252. In 43 Maine, 484, the-court say without citing any authorities, "We think the jury must have misapprehended the evidence or disregarded their duty.” Another case in 50 Maine, 222, for- injuries on a road,. $5,525.00, where no limbs were broken, was awarded, the court-without citing authorities say, "We are forced to the conviction., that the weight of evidence is clearly against the plaintiff, and. for this cause a new trial should be granted.”</p> <p>Again in 62 Maine, 20, Judge Walton in drawing the opinion» said, "When a verdict is so clearly wrong as to satisfy the court that the jury must have acted corruptly or mistakenly it will be. set aside. But the court will not infer corruption or mistake, simply because the verdict is contrary to what the court deems a mere preponderance of evidence.”</p> <p>Again in 62 Maine, 93, Judge Walton in drawing the opinion said, "A verdict which has no other support- than the testimony of a deeply interested party to the suit, in opposition to the positive testimony of five intelligent unimpeached anddisinforested witnesses must be regarded as clearly manifestly against the weight of evidence.”</p> <p>Again in 69 Maine, page 208, the court say it is evident the verdict is so manifestly against the weight of evidence that it ought to be set aside. See 49 Maine, 427 ; 47 Maine; 9 ; 62 Maine, 128 and 473; 59 Maine, 418; 58 Maine, 454; 36 Maine, 252; 37 Maine, 221; 40 Maine, 217; 53 Maine, 171; 42 Maine, 362 ; 65 Maine, 285 ; 69 Maine, 159. In 75 Maine, 477, the court say, "One jury might arrive at one result and another .jury at another result, and yet both act honestly, the court has no right to set aside the verdict and put the parties to the trouble ■and expense of another trial.” See further, 78 Maine, 569; 76 Maine, 282 ; State v. Inhab. of Madison, 59 Maine, 538.</p> <p>It must be conceded that the legislature contemplated that a driver should accompany the team. The language of the statute in c. 50, § 3, "Or drives or transports over it any loaded cart, &c., the weight whereof exceeds 4,500 pounds, exclusive of the team and carriage, and thereby breaks it down,” &c. And it would make no difference whether the driver was on the'load, or walking ou the bridge, indeed in the latter case the danger would be increased.</p> <p>cited: R. S., c. 50, § 3 ; Shear. & Red. Negligence, 39, 251, 369, 418 ; Orcutt v. Eittery Point Bridge Co. 53 Maine, 500; Bigelow v. Reed, 51 Maine, 325; Murphy v. Beane, 101 Mass. 455; Hinclcley v. (Jape Cod R. R. 120 Mass. 262 ; Hubbard v. Concord, 35 N. H. 52 ; Howe v. Castleton, 25 Vt. 162; 46 N. H. 521.</p>

<p>On exceptions.</p> <p>Tbe opinion states tbe case and material facts.</p> <p>Tbe plaintiff is entitled to judgment if there is- anything- due on tbe mortgage and unless the entire condition of the mortgage has been performed. Mason v. Mason, 67 Maine, 546.</p> <p>The partial failure in the consideration of a note is no defence when the damages sought to be set off against the note are unliquidated. Day v. Nix, 9 Moore, 159 ; Greenleaf v. Gook, 2 Wheat, 13.</p> <p>The partial failure of the title to the land is no defence to an action on the notes given for the purchase money or to an action on the mortgage given to secure the same. The defendant must resort to the covenants of warranty in his deed. Lloyd v. Jewell, 1 Greenl. 352; Wrinkle v. Tyler, 15 Martin, (Da.) 111.</p> <p>The defendant cannot take advantage of the alleged fraud at this stage of the case. He should have offered to rescind within a reasonable time. Lamerson v. Marvin, 8 Barb. N. Y. 9 ; McAllister v. Reab, 4 Wend. 483; 8 Id. 109; Curtis v. Ilannay, 3 Esp. R. 82 ; Burton v. Stewart, 3 Wend. 236.</p> <p>When failure or want of consideration may be set up in bar of recovery on a sealed instrument, the purchaser of land is not allowed to allege failure in whole or in part while he is in the undisturbed possession of the land. 7 Martin, R. (La.) 223 ; 15 Id. Ill; 11 Id. 235 ; 1 Bailey’s S. C. Rep. 217.</p>

<p>On report from the superior court.</p> <p>The case is stated in the opinion.</p> <p>The following are the laws of Canadá referred to in the opinion which were introduced as evidence in the case :</p> <p>(Copies of Laws.)</p> <p>[Seal.]</p> <p>Article 1998 of the Civil Code of Lower Canada in fofce sincethe first of August, 1866. "The unpaid vendor of a thing has two privileged rights :</p> <p>1st. A right to revendicate it.</p> <p>2nd. A right of preference upon its price.</p> <p>In the ease of insolvent traders, these rights must be exercised within fifteen days after the sale.”</p> <p>It was held in the superior court at Montreal, by Justice Eainville, in the case of Thibandeau and als. v. Mills and al. on the twenty-eighth day of February, 1883, as follows :</p> <p>"Considering that under the terms of Art. 1998 of the Civil Code of L. C., the vendor of a thing unpaid may exercise two privileges : 1st, that of its revendication ; 2nd, that of preference on its price.</p> <p>"Considering that under the terms of Art. 2000, the unpaid vendor, if he has lost his right to revendicate, or if he has sold with a term, keeps his privilege on the product of a thing against all creditors except the lessor and the bailee.</p> <p>"Considering that it is proved that the goods in question at the time of their return to the vendor by the vendee, were in the same state as at the time of their delivery, separated from all the other goods of the said Chaput and Masse, entire and bound with ropes, and that there is no doubt as to their identity.</p> <p>"Considering that under the terms of the Art. 1543, C. C., the vendor of a moveable property has a right to the cancelling of the sale, for default of payment of the price, so long as the thing sold remains in the hands of the buyer.</p> <p>" Considering that the parties have without fraud cancelled the said agreement or sale, by mutual consent, and that the said Chaput and Masse have executed beforehand what the law would have obliged them to do, and that the plaintiffs did not suffer any prejudice from that transaction in so far as the effect of the exercise of the privilege of said Mills and Hutchinson, by one way or another, would have been the same.</p> <p>" Considering that under the terms of Art. 1998, the vendor, in •oases of insolvency under an insolvent law, faillite, can only exercise his privileges within fifteen days after the sale; that such provision applies only to cases of insolvency under an insolvent law, faillite, and not in cases of insolvency under common law, insolvabilite, the said Chaput and Masse are not insolvent traders in so far as there is no longer a law permitting to put a person in insolvency, and that in consequence the unpaid vendor is always in time to exercise his right of preference.” Maintains the said pleas, etc., etc.</p> <p>It was held by Mr. Justice Rainville, sitting in the superior court at Montreal, on September 7th, 1877, in the case of Thompson and Whitehead, insolvents, Thos. Darling, assignee, and W. Greenwood, petitioner, as follows, according to the report of the case, 9 R. L. p. 379 :</p> <p>" The petitioner, merchant of Leeds, England, presented a petition in order to recover possession of goods sold to the .insolvents and sent by the petitioner to the buyers’ agent at Liverpool and expedited by such agent to Montreal, where they were stored in the custom house; in the meantime the buyers had become insolvent.</p> <p>" The assignee opposed the petition on the ground that the conveyance of the goods had ceased by their delivery to the buyers’ agent at Liverpool and by their arrival at Montreal.</p> <p>"Many authorities were cited on both sides, among others sec. 82 of the Insolvent Act of 1875, which enacts that; 'In the preparation of the dividend sheet, due regard shall be had of the rank and privilege of every creditor; which rank and privilege, upon whatever they may legally be founded, shall not be disturbed by the provisions of this act except in the province of Quebec, where the privilege of the unpaid vendor shall cease from the delivery of the goods sold.’</p> <p>" His honor granted the petition on the principle that the delivery of goods according to Art. 1543 of the C. C. means their delivery in the store and in the hands of the insolvents, and not their deposit at the custom house, and that the vendor of moveable effects has a right to revendiente goods unpaid. ”</p> <p>Art. 1543 is in the following terms : " In the sale of moveable things, the right of dissolution by reason of the non-payment of the price can only be exercised while the thing sold remains in the possession of the buyer, without prejudice to the seller’s right of reveudication, as provided in the title of 'Privileges and Hypothecs. ’ ”</p> <p>It was held in the superior court at Montreal, re Hawsioorth v. Elliott, X. L. C. Jurist, 197: "That the delivery contemplated by the 12th section of the Insolvent Act of 1864, is an actual, complete and final one, and consequently the delivery of goods to a purchaser’s shipping agent in England, for transmission to purchaser in Canada, and the entering of the goods in bond here, by the purchaser’s custom house broker, is not such a delivery as will defeat the vendor’s remedy, under the 176th and I77th articles of the Custom of Paris.”</p> <p>It was held in the superior court at Montreal, re The Bank of Toronto v. Kingston, XII L. C. Jurist, 216, "That the expression'fifteen day’s after the sale’ in the 1998th article of the Civil Code of Lower Canada, means after the sale and delivery. The delivery of goods sold in England to a shipping agent there, employed by the vendees, who forwards them to the vendees carrying on business in Montreal, is not such a delivery as is contemplated by the 12th section of the Insolvent Act of 1864, and such goods may be legally revendicated byr the unpaid vendors in the hands of the Grand Trunk Kailway here, although more than fifteen days elapsed since each delivery to the shipping agent.”</p> <p>We, Prothonotary of the superior court of the district of Montreal, hereby certify that the preceding pages contain faithful transcript of the Civil Code in force in this province and a faithful translation of judgments and reports in the way above indicated.</p> <p>[Stamp. Seal.] Geo. H. Xernick,</p> <p>Deputy Proth’y Superior Court,</p> <p>District of Montreal.</p> <p>Trastee process was the proper remedy since the lumber could Slot be come at to be attached. Harris v, Bennie, 3 Pet. 292; Oonard v. Pacific Ins. Co. 6 Pet. 262.</p> <p>There was a waiver of the conditions, if it was a conditional sale. Usher, Sales of Personal Property, § 204; Carleton V. Sumner, 4 Pick. 516; Smith v. Bennie, 6 Pick. 262; Fairbank tf, Phelps, 22 Pick. 539; Dresser Mfg Co. v. Waterston, 3 Met. 17; Whitney v. Eaton, 15 Gray, 227; Farl&w v. Ellis, 15 Gray, 231; Scudder v. Bradbury, 106 Mass. 427; Upton v. Sturbridge Mills, 111 Mass. 446; Goodwin v. Boston & L. R. R. Co. Ill Mass. 489 ; Haskins V. Warren, 115 Mass. 533 ; Freeman v. Nichols, 116 Mass. 309 ; Benjamin, Sales, § § 677, note f, 566 ; see Heller v. Elliot, 16 Reporter, 276 (N. J.); Chapman V. Lathrop, 6 Cowan, 110 (8 N. Y. C. L. Law ed. 849, see note) ; Lupin v. Marie, 6 Wend. 77 (10 N. Y. C. L. Law ed. 1025) ; Stone v. Perry, €0 Maine, 49; Seed v, Lord, 66 Maine, 580; Benjamin, Sales, § 594; Maker v. Campbell, 23 Wead. 372 (14 N. Y, C. L. Law «d. 402).</p> <p>The laws of Canada do not apply to this case. Daniel, Neg, Inst. § 866 ; 1 Burge, Com. 5 ; Bentley v, Hodge, 1 Best & Smith, 375 ; Hawkins v. Barney, 5 Pet. 457; Story, Con. of Laws, § § 414, 557, 558, 575, 576, 581, 571; Bulger v. Boche, 11 Pick. 36; 8 Pet, 361; Potter v. Brown, 5 East, 124; •2 Keut’s Com. 461; 2 Burge, Com, 778; Fox v. Adams, 5 Maine, 245; 11 Maine, 41; 71 Maine, 514; Boston Iron Co. v. Boston Loc. Works, 51 Maine, 585; May v. First Nat. Bank of Attleboro,' 7 Western Rep. 681 ; Heyer v. Alexander, 108 Ill. 385; Bhawn v. Pearce, 110 Ill. 350; Hibernia- Nat. Bank v, Lacombe, 84 N. Y. 367 ; Brown v. Knox, 6 Mo. 306 ; Upton v. Hubbard, 28 Conn. 275; Paine v. Lester, 44 Conn. 196; Warner v. Jaffray, 96 N. Y. 248; Kidder v. Tufts, 48 N. H. 121; Davis v. Pierce, 7 Minn. 13 ; McFarland v. Butler, 8 Minn. 116; Jackson v. Puttier, 8 Minn. 117,</p> <p>"Where payment and delivery are agreed to be simultaneous? and the payment is omitted, evaded, or refused by the purchaser on getting possession of the goods, the seller may at once reclaim them. No title passes till the terms of the sale have been complied with. Where nothing- is said about payment at the time of the purchase, the law presumes that the sale is for cash, and in such case payment and delivery are concurrent acts.</p> <p>"When goods are sold on time, and delivered under an agreement that they are to lie paid for in a promissory note of the purchaser, such payment is a condition precedent, and the title will not pass till it is made.” Usher on Sales, Secs. 202, 203 5 1 Benjamin on Sales, § 334.</p> <p>As early as 1808 this question came before the Massachusetts court; it was held that the title still remained in the vendors upon the simple ground that the plaintiffs had not received the security before the delivery of the goods, as appears by the ruling at nisi prius and the overruling of the exceptions. Hussey v, Thornton, 4 Mass. 405. in a case decided by the same court in 1827 there was a purchase of some property partly for cash and partly on credit. It was held by the court that the title never passed. Marston v. Baldwin, 17 Mass. 606.</p> <p>Whenever there is any question in a conditional sale whether the vendor has made such delivery as has waived the condition, the proof is upon the party claiming the sale as against the one maintaining that any waiver existed. It is the intention of the parties which governs in such cases. Riddle v. Varnum, 20 Pick. 280.</p> <p>This is to "be ascertained only from the terms of the agreement as expressed in the language and conduct of the parties and as applied to known usage and the subject matter. It must be manifested at the time the bargain is made.” Of course, as was said in this case, no secret undisclosed purpose on the part of the vendor to retain the title would prevent it from passing. This is not our case. Roster v. Ropes, 111 Mass. 10, 16.</p> <p>Now rve understand the weight of authority to be that when a sale has been made upon any particular terms or conditions, and the delivery made pursuant to that agreement, that is, in. consequence of and by reason of it, the delivery thereby becomes conditional in like manner as the sale. Smith v. Dennie, 6 Pick. 262-266.</p> <p>A distinction between a delivery which is unconditional after a conditional sale, and one where the condition still exists, is well taken. Burbank v. Orooker, 7 Gray, 158.</p> <p>Sundry cases are found in the Massachusetts reports whei'e a special agreement was proved that the property should remain, the title of the vendor until paid for in cash. Sargent v.. Metcalf, 5 Gray, 306; Blanchard v. Child, 7 Gray, 155.</p> <p>In another case decided in 1849, a sale of teas was made, and' the bill or parcels given by the seller to the buyer was, "Brown’s-note six months his order or four per cent off.” It will be-observed that this case, so far as the terms of the sale are-concerned, is precisely like the case at bar. The court in that case found that the title did not pass. Hill v. Freeman, 3-Cushing, 257. See also Coggill v. Hartford & New Haven R.. R. Co. 3 Gray, 545; DesJton v. Bigelow, 8 Gray, 159 Whitney v. Baton, 15 Gray, 225 ; Farlow v. Ellis, 15 Gray,. 229 ; Hirschorn v. Canney, 98 Mass. 149 ; Adams v. O’Connor• et al. 100 Mass. 515; Nelson v. Dodge, 116 Mass. 367 ;: Armour v. Pecker, 123 Mass. 143; Salomon v. Hathaway,. 126 Mass. 482.</p> <p>There is one authority in Massachusetts which seems to holdla contrary doctrine, but we do not think it is sustained either.by the cases cited in support of it, or by the general course of adjudication in Massachusetts. Freeman v. Nichols, 116 Mass.. 309.</p> <p>The case of Wigton v. Bowley, 130 Mass. 252, is in conflicts, with many other cases in Massachusetts and elsewhere, because-it contains the element of a draft attached to a bill of lading,, upon the acceptance of which draft the bill of lading was to be delivered, and not without. See also Blanchard v. Cooke, (Mass.) 11 N. E. B,ep. 83-89 (No. 1.)</p> <p>In such cases it has been held over and over again that the parties holding the bill of lading and draft retain the title to the 'property until the draft is either accepted or paid. National .Bank of Chicago v. Bayley,. 115 Mass. 228 ; Newcomb v. Boston & Lowell R. R. Corporation, 115 Mass. 230 ; Alderman v. Eastern R. R. Co. 115 Mass. 233; Seymour v. Newton, .105 Mass. 272 ; Marine Bank of Chicago v. Wright, 48 New York, 1; National Bank of Oreen Bay v. Dearborn, 115 Mass. :219 ; Exchange Bank of St. Louis v. Rice, 107 Mass. 37.</p> <p>The authorities in Maine are not numerous, but they are to ■the point: Hotchkiss v. Hunt, 49 Maine, 213-219 et seq. ;(1860) ; Stone v. Perry, 60 Maine, 48; Seed v. Lord, 66 Maine, 580.</p> <p>But it is well settled doctrine that when a contract is made, the laws of the jurisdiction within which it is made enter into it •so far as they appertain thereto, and the terms of the contract ¡are modified accordingly.</p> <p>This is especially illustrated in the question as to the effect of proceedings in insolvency under a State law, and a discharge thereof. It is established beyond question that a discharge ¡under such proceedings does not discharge any debt contracted prior to the enactment of the law which authorizes such proceedings, nor does it discharge any contract entered into between the insolvent debtor and an inhabitant of another State, provided •such inhabitant does not submit himself to the jurisdiction of the insolvent court by proving his debt. It does operate upon ¡subsequent contracts where the creditor is a resident of the •state at the time, because the statute enters into and forms a •part of the contract. Hackett v. Potter, 135 Mass. 349 ; Shoe & Leather Bank v. Wood, 142 Id. 563 ; Marwin Safe Co v. Norton (N. J.) 7 At. Bep. 417, 420, and cases cited.</p> <p>So far as any laws of Canada are pertinent, they are by the terms of the report to be proved by certificates. It will be seen by article 1998 of the Civil Code of Lower Canada, which includes the residence and place of business of the claimants, the residence and place of business of the vendees, and the residence and the place of business of the agent of the vendees, that the unpaid vendor of a thing has two privileged rights, first, the right to revendicate it, second, the right of preference upon its price.</p> <p>In re Thompson and "Whitehead, Insolvents, Darling, Assignee, and Greenwood, Petitioner, 9 It. L. p. 379, Ilawsworth v. Elliott, X. L. C. Jurist, 197, are to the effect, that delivery to the buyer’s agent does not deprive the creditor of his rights.</p> <p>In Greenwood v. Darling, supra, the provisions of § 1543 of the Code are cited. This contains cei'tain provisions, and carefully provides that they shall not affect the chapter containing section 1998.</p> <p>The same court at Montreal, following the authorities and reciting the 1998th article in a case where the goods were sold in England and delivered to the purchaser’s shipping agent there, held that such a delivery was not a delivery such as was contemplated by the statute, and that the goods might be legally revendicated by the unpaid vendor in the hands of the Grand Trunk railway in Lower Canada, although more than fifteen days had elapsed since such delivery. Bank of Toronto v. Kingston, XII. L. C. Jurist, 216.</p> <p>It is clear from the authorities that rights and property in goods obtained in Canada by contracts made there and the laws existing there, including the laws and rights to revendicate the same, follow the property, although it has gone into another jurisdiction, so long as such rights or property have not in any way been abandoned by the voluntary act of the party who possessed them in the original jurisdiction.</p> <p>But inasmuch as there is sometimes a little confusion arising as to whether any particular question is one of remedy or one of right and title to the property, and as we cannot understand the confidence which the plaintiffs seem to have in their case upon any other ground than that they have mistaken a title and vested right for a mere matter of remedy, we deem it proper to make some further allusion to the distinction between these two, in order to show that, in this case, rights arising under the circumstances, determining the title to the property are not affected by its having crossed the line.</p> <p>The authority of the writers is generally very explicit. See Story, Conflict of Laws, § § 272, 402, 401.</p> <p>Jones on Comm, and Trade Contracts, § 23 ; Bulkley v¡ Honold, 19 How. 390, 392; Walker v. Whitehead, 16 Wall. 314-317 ; Scudder v. Union National Bank, 91 U. S. 406 ; Pritchard v. Norton, 106 U. S. 124-130 ; Morgan v. N. O. M. & T. R. R. Go. 2 Woods, 244-254; 8 Meyer’s Fed. Doc. § 1200; Green v. Sarmiento, Pet. C. Ct. 74; S. C. 1 Abb. Nat. Dig-, p. 796; R. I. Central Bank v. Danforth, 14 Gray, 123; Williams v. Wade, 1 Met. 82; Judd v. Porter, 1 Maine, 337-339; So. Boston Iron Go. v. B. L. Works, 51, Maine, 585; Lindsay v. Hill, 66 Maine, 212-217; Smith v. Eaton, 36 Maine, 298-306.</p> <p>On the other hand it is true that what pertains to the remedy is governed by the lex fori. This doctrine and the reasons for it are fully set forth in Judge Story’s work already mentioned. Story’s Conflict of Laws, § § 572, 575, 576 (note a). Lennox v. Brown, 12 C. B. 801.</p> <p>There is still another reason which it seems to us is absolutely fatal to this attachment. The writ bore date on the 17th day of December, 1886. The direction of the officer was to attach the goods and estate of James Maguire, of Quebec, of the Province of Quebec, surviving partner of the firm of D. & J. Maguire, and doing business in the name of D. & J. Maguire, and while the writ was in that condition service was made upon' the same day.</p> <p>There is no question in this case, but that if the plaintiffs have any right to hold the goods in the hands of the alleged trustees, they must hold them as the property of the firm of D. & J. Maguire. No attachment however was ever made of the goods ■of D. & J. Maguire, but only of James Maguire. The addition •of Charles Maguire’s name cannot relate back so as to make the ■attachment good as against him, the amendment having been made after the entry of the writ in court. It was only the -defendant, James Maguire’s, property which was attached.</p> <p>Now it is too well settled to need any authorities that the property of an individual in firm assets consists only of his share of the assets remaining after the payment of all the debts of the firm, and, in this case, it appearing by the 6th allegation of the claimants that the firm was wholly insolvent, the attachment, even if not invalid by reason of all that has gone before and of what has already been urged, held nothing whatsoever in the hands of the alleged trustees. It has been often held that whether a trastee is chargeable depends upon the state of things existing at the time of service upon him. Mace v. Heald, 36 Maine, 135; Williams v. And. & Ken. R. Go. Id. 201; Capen v. Duggan, 136 Mass. 501.</p> <p>Adding a new defendant, though he be another partner in the same firm, vacates an attachment of firm property. Denny v. Ward, 3 Pick. 198.</p>

<p> Law and equity. Go-tenants. Partnership. </p> <p>“When tenants in common in land agree to put on improvements to adapt it to a business in which they engage, each agreeing to pay his proportional part for such improvements, and appointing one Of their number an agent to make the improvements, an action at law may be maintained by the one who paid for the improvements against any tenant for his proportion of the expenses of the same,</p>

On report on agreed statement of facts from superior court. This was an action of debt brought under the statute for the collection of state, county and town taxes in the town of Cape Elizabeth for the year 1879. No question was raised as to the form of the action or the legality of the assessment of the tax.

<p>On repoi't.</p> <p>The opinion states the case.</p>