Volume 80 — Maine Reports

On exceptions. An appeal from the decision of the judge of probate for Franklin county, approving and allowing of the will of Sarah S. Belcher, late of Farmington, deceased. The proponents of the will filed the following motion and the exceptions were to the ruling of the court, as a matter of law, that there was no authority in the court to grant the motion.

On report. Bill in equity b}r the trustees under the will of Joseph Ilsley to obtain a construction of the will. Heard upon bill and answers and a copy of the will which is sufficiently stated in the opinion. A clearly expressed intention in one portion of the will, is not to yield to a doubtful construction in any other portion of the instrument.” The plain and unambiguous words must prevail.” Red. on Wills, Vol. 1, pp. 430, (12) 433, (2) and 434 (4).

On appeal by the plaintiff. The opinion states the point. The report of a master is not conclusive, although every reasonable presumption is to be made in its favor; and if the evidence clearly shows that he is mistaken in his conclusions, the court will set them aside on exceptions. Drew v. Beard, 107 Mass. 64.

On report. This was an action for the recovery of pew No. 16 in the Congregational meeting-house in North Bridgton. It was admitted that the title to the pew was conveyed by deed in 1875. But the defendant claimed title under a deed from the treasurer of a corporation of the pew-owners, given in 1884.

Any person injured in his comfort, property, or the enjoyment of his estate, by a common and public, or a private nuisance, may maintain against the offender an fiction on the case for his damages, unless otherwise specially provided.” R. S., c. 17, § 12.

On report. An action on a mortgage by the executrix of the will of Jonas Fitch. The point is stated in the opinion. Primarily the power to mortgage real estate of a corporation resides in the corporation alone. Jones on Mortgages, § 127.

<p> Mill-dam. Flowage. Practice. Arbitration. </p> <p>In proceedings upon complaint for flowage, tlie statute contemplates that when the right to flow is controverted, such fact must be established or admitted before the appointment of commissioners.</p> <p>It is not within the power, nor is it any part of the duty of commissioners to determine that question.</p> <p>When a submission is made by private parlies to a given number of persons, without any express authority given or to be inferred from the manner or circumstances of the submission, that a smaller number may decide, an award or decision will be void unless made by all.</p> <p>A different rule prevails when authority is conferred upon several persons in matters of public concern.</p>

On exceptions. This was an appeal from the decision of the county commissioners in adjudging that common convenience and necessity did not require the laying out of a new way in Auburn on the petition of A. M. Fogg and one hundred and thirteen others. A committee was appointed on the appeal and by order of the court the city of Auburn was served with a notice of the time and place of hearing by the committee.

<p>On report.</p> <p>The case is stated in the opinion.</p>

<p>On report.</p> <p>The case is stated in the opinion.</p> <p>No attestation clause to a will is required.by law. 1 Jarman, Wills, (5 Am. ed.) 218; Fry's Will, 2 E. I. 88; Osborn v. Oook, 11 Cush. 532; Ela v. Edioards, 16 Gray, 91; Eliot v. Eliot, 10 Allen, 357 ; Moore v. Griswold, 5 N. Y. Surrogate Eep. 388 ; Roberts v. Phillips, El. & Bl. 450.</p> <p>Statute of limitation affects remedy only. Bulger v. Roche, 11 Pick. 38; Lincoln v. Battelle, 6 Wend. 485.</p> <p>Eemed'y may be changed by legislature so as to affect pending-cases. 'Tháyer v. Seavey, 11 Maine, 284; Oriental Bank v. Freese, 18 Maine, 109 ; Read v. Frankfort Bank, 23 Maine, 318 ; Sampson v. Sampson, 63 Maine, 329 ; Wright v. Oakley, 5 Met. 410; Dean v. Dean, 2 Mass. 150; Springfield v. Hampden Coins. 6 Pick. 501'; Sedgwick, Stat. & Cons. Law, 412 ; Sampeyreac v. IT. S. 7 Pet. 222 ; Foster v. Essex Bank, 16 Mass. 273.</p> <p>'Will fraudulently concealed. Eedf.. Wills, Part 2, p. 9 ; E. S., c. 81, § 96 ; 1 Jarman, Wills, 53 ; Shumway v. Holbrook, 1 Pick. 117 ; Lyman v. Gedney, 55 Am. E. 871; E. S., c. 1, § 5, does not apply. Webster v. Co. Com. 64 Maine, 434; Belfast v. Fogler, 71 Maine, 404.</p> <p>named as executors of will, and for John F. Colby, special administrator of the estate of George Deake.</p> <p>Stat. 1887, c. 108, cannot affect the case at bar. It is a settled rule in construing statutes that they are to be considered as prospective only, unless the intention of the legislature to give' them a retrospective operation is clearly expressed, or it is a necessary construction. Hastings v. Lane and al. 15 Maine-,. 134; Rogers v. Inhabitants of Greenbush, 58 Maine, 305,;; Given v. Marr, 27 Maine, 2Í2.</p> <p>" A retrospective operation should never be given, when nots required by express command or necessary implication.” Murray,> v. Gibson, 15 Howard, 421; Harvey v. Tyler, 2 Wallace,' 329-Chew Ileong v. United States, 112 U. S. 536.</p> <p>" We never hold an act to be retrospective unless it is plaim that no other construction can be fairly given.” Rogers v.. Greenbush, 58 Maine, 397.</p> <p>In analogous cases it has been held that similar statutes did-not apply to cases where, as in the case at bar, the proceedings, were barred by the statute of limitations that was in force before-the amendment went into operation. So held in case of an, amendment that the time of residence of a defendant out of the-state should not constitute a part of the time limited for commencement of action. Wright v. Oakley and al. 5 Met. 400.</p> <p>Also by statute giving a remedy by bill in equity in certain; cases to those holding claims against estates of deceased persons; not prosecuted within the time limited therefor. Garfield v.. Bemis, 2 Allen, 445.</p> <p>Also as to a statute extending the time for filing a petition ;; it was held that such a statute would not revive a right of action by petition for land damages, barred by the statutes of limitations in force when the amendment, was adopted. Kinsman v. Cambridge, 121 Mass. 558.</p> <p>This original will is not proved to have been lost, destroyed, suppressed, or carried out of the state, so that it could not be obtained after reasonable diligence.</p> <p>1. It was not lost, but was in the possession of George Deake when found by Mrs. Brown, one of the appellants in this case, .and has been in the possession of the latter since.</p> <p>2, It was not destroyed, but is in existence to-day.</p> <p>8. No evidence shows that it wuis ever suppressed, so that it (could not be obtained by reasonable diligence.</p> <p>Mrs. Brown found it in the house of George Deake in 1878 ; ano attempt had been made at concealment; it could have been found at any time, by reasonable diligence. It was actually in the possession of Mrs. Brown after 1873,'and the twenty years’ ¡limitation did not expire until August, 1874 ; her own want of •diligence in presenting the will, defeats the application of Ch. 108 of the Public Laws of 1887, which is not intended to give ¡relief against want of diligence of a petitioner in such cases.</p> <p>Any alleged proof of a suppression of this will is inferential merely'and attacks the good fame of both Charles Deake, the father, and George Deake, the uncle, of these petitioners. It is .a far more probable and honorable inference that the will was ¿revoked by .the alleged testator. The conduct of both Charles .and George Deake was inconsistent with improper motives. The ¡property ¡remains’ to-day as it was at the demise of Benjamin Deake.</p>

<p> Trial by jury. Constitutional law. Construction of statutes. Stat. 1887, c. 140. Intoxicating liquor. Motion for new trials in criminal cases in superior courts. Practice. </p> <p>The right of a trial by jury is guaranteed by the constitution, and it is not within the province of the legislature to enact a law which will destroy or materially impair that right.</p> <p>If a statute is susceptible of two interpretations, one of which will render it unconstitutional, the other should be adopted.</p> <p>Stat. 1887, c. 140, declaring that the payment of a special tax as a retail liquor dealer shall be held to be prima facie evidence that the person paying such tax is a common seller of intoxicating liquor, only means that such evidence is competent and sufficient to justify a jury in finding such person guilty if they are satisfied beyond'a reasonable doubt of his guilt.</p> <p>Motions for new trials in criminal cases tried in either of the superior courts, are to be heard and finally determined by the justices thereof.</p>

On exceptions and motion to set aside the verdict. An action by a brakeman on the Portland and Ogdensburg Itaiiroad, for personal injuries received by reason of the negligent construction of the awning at the station of the defendant company at Bethlehem Junction, New Hampshire. The material facts are stated in the opinion.

<p> Indictment. Intoxicating liquors. Prior conviction. </p> <p>A prior conviction is not well laid at a term of court wliicli ended before the certificate of decision was received from the law court in the cause.</p>

On appeal by the defendant. The opinion states the case. We do not deem it necessary to discuss the facts, as we think this is clearly one of the class of cases in which the court will not set aside the findings of the court below, on matters of fact.

<p>Lobsters. Constitutional law. Stat. 7885, c. 275 and c. 258■ Magistrate.</p> <p>The act of 1885, c. 275, prohibits the destruction of lobsters within this state, even though taken or caught more than a marine league from the shore. That act is not unconstitutional by reason of the penalties imposed by it.</p> <p>The act of 1885, c. 258, is not unconstitutional by reason of the enlarged jurisdiction given to magistrates under it.</p> <p>A magistrate is not disqualified by reason of interest in oases where a part of the penalty goes to the municipality in which he is a resident and tax-payer.</p>

<p>Appeal from decree of the judge of probate.</p> <p>The point is stated in the opinion.</p>

On exceptions. The exceptions were to the ruling of the court in overruling a demurrer to the libel. (Libel.) State of Maine. York, ss.

On report. Assumpsit by an indorsee against the indorser of a promissory note dated at Cincinnati, October 1, 1884, for $1000, payable to the order of the defendant in two years with interest.

On exceptions. The opinion states the case. That a note payable to order may be transferred for a valuable consideration, before indorsement, is well settled. 15 Maine, 399. The principle that one cannot voluntarily pay the debt of another and make him his debtor does not apply. The guarantor in this case should be considered in the sense of a surety. The principles discussed in 59 Maine, 308, will apply.

<p> Exceptions. Practice. </p> <p>The exceptions to an interlocutory decree should not be brought to the law court until the final decree has been entered, except in such cases as wills not admit of that delay.</p> <p>When exceptions are prematurely brought to the law court, they will be; dismissed from the law docket.</p>

<p>On exceptions and motion. The case is stated in the opinion.</p> <p>cited : Martin v. Ins. Co. 20 Pick. 389 ; Fox v. Harding, 7 Cash. 516: R. S., c. 49, §52; Butter worth v. Western Assurance (Jo. 132 Mass. 492 ; Bartlett v. Union Ins. Go. 4(5 Maine, 500 ; Lewis v. Monmouth Ins. Go. 52 Maine, 492; Works v. Farmers Ins. Go. 57 Maine, 282 ; Gouch v. Rochester Ins. Go. 25 Hun. N. Y. 469 ; Garson v. Jersey Gity Ins. Go. 43 N. J. 300; Franklin Fire Ins. Go. v. Chicago Ice Go. 36 Md. 102; Rokes v. Amazon Ins. Go. 51 Md. 512; Patterson v. Triumph Ins. Go. 64 Md. 500; Bailey v. Hope Ins. Go. 56 Md. 474; Savings Bank v. Gom. Union Assurance Go. 142 Mass. 142; White v. Jordan, 27 Maine, 370; Googins v. Gilmore, 47 Maine, 9 ; Williams v. Bulcer, 49 Maine, 427.</p> <p>It was plaintiff’s duty ao mortgagee to see that the insured took the proper preliminary steps lor the recovery of the insurance, or in case of his neglect so to do, to take such steps herself. Wood on Fire Insurance, § 438; Graham v. Phoenix Ins. Go. 77 N. Y. 171.</p> <p>The company admitted that they "had knowledge of the fire in some wav on the day after it occurred.” But this did not obviate the necessity of such notice. Wood on Fire Insurance,, § 439; Woodfin v. Ashville Ins. Go. 9 Jones, (N. C.) 558 * Edward v. Lycoming Ins. Go. 75 Penn. St.. 378.</p> <p>The company had had information that this fire was caused by the act of the insured, and Richardson went there as he testified, for the purpose of investigating that matter, and according to his testimony, that was the burden of the whole interview. And such a visit as he made could not affect the duty of the plaintiff to make proper proof of loss. Underwood v. Farmer's Ins. Go. 57 N. Y. 500; Edwards v. Baltimore Ins. Go. 3 Gill. (Md.) 176 ; Blossom v. Lycoming Ins. Go. 64 N. Y. 162. •</p> <p>In Boyle v. North Carolina Ins. Go. 7'th Jones, N. C. 373, the evidence of a waiver of proof of loss was much stronger than in the case at bar. An agent of the defendant was present at the fire, and fifteen days afterward a travelling agent of the company (such as Mr. Richardson in this case) saw the plaintiff about the loss’and said; "The matter will be all right with the company.”' Held no evidence of waiver. A waiver "is an intentional relinquishment of a known right,” and in order to find a waiver on the part of the company by Richardson’s act, (supposing him to have authority to waive, which we deny) we must find that he intended to waive the furnishing the proofs and that his acts and words were to that end. We submit that it would be the height of unreason to deduce this from the evidence. Richardson was talking with the old man and woman, not as the assured, but simply as people who lived on the premises,. and were conversant with the circumstances of the fire, and there is no evidence to go to the jury of the requisite intention which is a sine qua non. Donahue v. Windsor Gounty Ins. Go. 56 Yt. 374; Home Ins. Go. v. Valt. W. H. Go. 16 Am. Law. Reg. 162; Interprise Ins. Go. v. Fariso, 35 Ohio. St. 35; Findeison <& ux. v. Metropole Ins. Go. 57 Yt. 520.</p> <p>See a thorough discussion of the principle of waiver of proof of loss by company’s agent in the recent case of Bowlin v. jGedda Fire Ins. Go. (Minn.) reported in Insurance Law Journal for April, 1887.</p> <p>It is good law that a representation upon applying for insurance, that the property has no mortgage upon it, is a material one. Richardson v. Maine Ins. Go. 46 Maine, 394; Gould v. Y orle Ins. Go. 47 Maine, 403.</p> <p>Whether or not the omission to disclose the mortgage was intentional or not does not matter. Dennison v. Thomaston Ins. (Jo. 20 Maine, 125; Gould v. York Ins. Go. ante.</p>

<p>On report.</p> <p>The opinion states the case.</p> <p>cited : E. S., c. 70, § 52; Bump, Bank’y, 832, 836; Otis v. Hadley, 112 Mass. 105 ; Meserve v. Wdd, 75 Maine, 483; Tuttle v. Truax, 1 N. B. E. 601; Be Palmer, 3 N. B. E. 283; Be Meyer, 2 N. B. E. 422; Be Coleman, 2 N. B. E. 563; North v. House, 6 N. B. E. 365 ; Sca.mm.on v. Cole, 5 N. B. E. 257; Collins v. Bell, 3 N. B. E. 587 ; Heywood v. Beed, 4 Gray, 574; Beals v. Clark, 13 Gray, 18 ; Forbes v. Ilowe, 102 Mass. 427; Too/ v. Martin, 13 Wall. 40 (20 L. ed. 481) ; Warren v. Delaware L. & W. R. Co. 7 N. B. R. 451; Merrill/ v. McLaughlin, 75 Maine, 64; Wilson v. Stoddard, 4 N. B. R. 254-; Re Kingsbury,'3 N. B. R. 318 ; Ungewitter v. Von Sachs., 3 N. B. R. 723; Graham v. Stark, 3 N. B. R. 357 ; Vogle v, Latrobe, 4 N. B. R. 439 ; Markson v. Hobson, 2 Dill. 327 ; Mayer v. Hermann, 10 Blatchf. 256; Oxford Iron Co. v. Slafter, 13 Blatchf. 455.</p> <p>In order to recover the plaintiff must prove four things : First. That at the time of the transfer of the stock to the defendant, Mrs. Morrison was insolvent or in contemplation of insolvency. Second. That the transfer in question was made with a view to give a preference to the defendant over other creditors. Third. That at the time of said transfer the defendant had reasonable cause to believe that Mrs. Morrison was insolvent or in contemplation of insolvency. Fourth. That the defendant also had reasonable cause to believe, that such conveyance was made in fraud of the laws relating to insolvency. R. S., c. 70> § 52; Merrill v. McLaughlin, 75 Maine, 64; Forbes v. Howe, 102 Mass. 427 ; Abbott v. Shepard, 142 Mass. 17 ; Toof v. Martin, 13 Wall. 40.</p> <p>The insolvent act does not define what shall constitute " insolvency.” The term is used in its restricted sense to express the inability of a party to pay his debts as they become due, only in case of merchants or traders. As to all other persons it is used in its general signification, to denote the insufficiency of the entire property and assets of an individual to pay his debts. See Toof v. Martin, 13 Wall. 40, in which this distinction in the use of the term is recognized and adopted.</p> <p>In order that the transaction be declared void it must appear that the defendant had "reasonable cause to believe” that Mrs. Morrison was " insolvent or in contemplation of insolvency,” and that the transfer was " made in fraud of the laws relating to insolvency.” R. S., c. 70, § 52.</p> <p>In reference to the meaning of the phrase "having reasonable ground to believe such a person insolvent,” it is not enough that a creditor has some cause to suspect the insolvency of the debtor, but lie must lmve such a knowledge of facts as to induce a reasonable belief of his insolvency. King v. Storer, 75 Maine, 62; Grant v. National Bank, 97 IT. S. 80 ; Priest v. Barbour, 103 Id. 293 ; Everett v. Siowell, 14 Allen, 32 ; Purinton v. Chamberlain, 131 Mass. 589 ; Abbott v. Shepard, 142 Mass. 17 ; Coburn v. Proctor, 15 Gray, 38.</p>

On report. The case is stated in the opinion. The grantor must have mental capacity to understand the business in order to make a valid conveyance. Hovey v. Hobson, 55 Maine, 279 ; Darby v. Hay ford, 56 Maine, 246; Hovey v. Qhase, 52 Maine, 304; St. George v. Biddeford, 76 Maine, 593; Best. Ev. § 405; Patterson v. Snell, 67 Maine, 559. Presumption of death.

On exceptions. The exceptions were to the ruling of the court that the indictment sufficiently charged a former conviction. The following were the averments of the bill.

On report. This case was reported to the law court upon a copy of the writ, with the agreement that if the action .could he sustained upon the allegations contained in the declaration the case should stand for trial, otherwise a nonsuit, should be entered.

On exceptions and motion to set aside the verdict, by the defendants, from the superior court. The opinion states the case. cited: Sebee v. Dover, 71 Maine, 573 ; Stat. 1885, c. 265 ; Stat. 1887, c. 9, & c. 146 ; R. S., c. 24, § 3 ; Etna v. Brewer, 78 Maine, 377. By R. S., c. 24, § 10, it is provided that towns shall relieve persons having a settlement therein when, on account of poverty, they need relief.

<p>On report.</p> <p>The opinion states the case.</p> <p>cited : Toothaker v. Allen, 41 Maine, 324: Lamb v. Franklin M’fig Co. 18 Maine, 187; Page v. Smith, 25 Maine, 256; 1 Greenl. Ev. § 87 ; Thornton v. Moody, 11 Maine, 253; McLellan v. Cumberland Bank, 24 Maine, 566; Palmer v. Fogg, 35 Maine, 368 ; Wilson v. Hanson, 12 Maine, 58; Bell v. Wood-mam, 60 Maine, 465; Sylvester v. Staples, 44 Maine, 496; Farley v. Bryant, 32 Maine, 474 ; Littlefield v. Littlefield, 28 Maine, 180 ; Chadwick v. Perkins, 3 Maine, 399 ; Osgood v. Davis, 18 Maine, 146 ; Hancock v. Fairfield, 30 Maine, 299 ; Thompson v. Peed, 77 Maine, 425 ; Farnsworth v. Jackson, 32 Maine, 419 ; Emerson v. E. & FT. A. R. Co. 67 Maine, 387 ; Pullen v. Hutchinson, 25 Maine, 249 ; Robinson v. Stuart, 68 Maine, 61; Prentiss v. Russ, 16 Maine, 30; Ripley v. Severance, 6' Pick. 474: Giddings v. Coleman, 12 N. H. 153 ; Cooley, Torts, 473, 474; Drake, Attachment, § § 523, 601; 1 Schoul. Pers. Prop. § § 80, 81; 1 Pars. Cont. 466 ; 2 Pars. Cont. § 13.</p> <p>The question as to whether future earnings can be assigned •has been settled in the affirmative. Hartley v. Tapley, 2 Gray, 565 ; Emery v. Lawrence, 8 Cush. 151; Lannan v. Smith, 7 Gray, 150; St. John v. Charles, 105 Mass. 262.</p> <p>The validity of such assignments is also settled in Darling v. Andrews, 9 Allen, 108 ; Boylen v. Leonard, 2 Allen, 409.</p> <p>The assignment of an unliquidated balance is good. Crocker v. Whitney, 10 Mass. 316: Mulhall v. Quinn, 1 Gray, 107; Herbert v. Bronson, 125' Mass. 475, and other Massachusetts cases.</p> <p>If the consideration is a good one and without fraud, the claimant is entitled to the funds. Lannan v. Smith, 7 Gray, 153.</p> <p>Maine decisions upon the foregoing points are among others, 4 Maine, 428 ; Farnsworth v. Jackson, 32 Maine, 420; Little-field v. Smith, 17 Maine, 327.</p> <p>In Holmes v. Porter, 39 Maine, 158, the court say: "In actions against several partners on a contract the proof of the partnership usually consists in evidence that they have acted as partners in the particular business. Less evidence is usually sufficient in this case than is requisite when partners sue as plaintiffs, for they are not cognizant of all the means by which the fact is capable of being proved.”</p> <p>In determining whether the trustee shall be discharged his answer must be taken to be true as to all matters of fact. Chase v. Bradley, 17 Maine, 89; Lamb v. Franklin M’fi’g Co.. 18 Maine, 187 ; Stedman v. Vickery, 42 Maine, 132.</p>

On report. Bill to restrain the defendants from using more than their portion of the water from a reservoir dam in which the plaintiff was interested. The facts are fully stated in the opinion. Held: That, by the terms of the deed, the grantee acquired an absolute and prior right to the use of the quantity of water named.

Bill in equity under the provisions of B. S., c. 77, § 6, cl. 9, to restrain the town from dividing the Lithgow money under the following proceedings'of the town at a meeting legally called and held June 5, 1886. (Warrant.) Art.. 2.

On motion of the defendant to set aside the verdict and for new trial. The verdict in this case was absurd and outrageous. The jury were misled, prejudiced and improperly influenced by testimony. Otherwise they could not have found such a verdict.

<p>On exceptions by the defendant.</p> <p>Trespass, quare clausum fregit.</p> <p>Both parties claimed title to the locus : the plaintiff through a mortgage assigned to him by an executor, the defendant through a tax deed. Other material facts stated in the opinion.</p>

On exceptions by the defendants. An appeal by plaintiff from the decision of the judge of probate, refusing to grant his motion to dismiss the petition of William O. Holman and David M. Holman, that the plaintiff be placed under guardianship.

On report. Trespass, quare clausum fregit. The question at issue was the location of the dividing line between the lands of the parties. The jury rendered a general verdict for the defendant, and a special verdict fixing the dividing line.

<p>On report.</p> <p>Assumpsit for money hud and received.</p> <p>cited : Hendrickson v. People, 61 Am. Dec. 721; O'Dee v. McOrate, 7 Maine, 471; Hatch v. Atkinson, 56 Maine, 327 ; Dole v. Lincoln, 31 Maine, 422; Robinson v. Ring, 72 Maine, 141; Northrop v. Hale, 73 Maine, 66.</p> <p>This power of the judge of probate is clearly an extension of his jurisdiction and gives no remedy, simply furnishing a discovery, something by means of which the plaintiff can procure evidence and not evidence itself. 4 Mass. 318 ; 7 Maine, 470 ; 7 Pick. 14.</p> <p>The balance was a valid gift. The essentials of a valid gift are intention, delivery and acceptance. In this case there was the consideration of love and affection which was a good consideration, but no consideration was necessary. 9 Met. 339.</p>

On report. An appeal from the decree of the probate court in the matter of the settlement of the account of the appellant, as administrator of the estate of Robert Treat, deceased. The opinion states the facts. No inventory was ever filed, the omission to do so being-according to the wish of the parties concerned. This, however, affords no objection as has been directly decided by the court.

On report. The opinion states the case. If one accepts or knowingly avails himself of the benefit of services done for him without his authority or request, he is held, to pay a reasonable… Held: to pay a reasonable compensation therefor.” Abbott v. Ilermon,. 7 Maine, 118, 121.

On exceptions. Assumpsit on a promissory note against the defendant as trustee of the estate of George E. Davis of Boston.” The questions raised by the exceptions, and the material facts are stated in the opinion. Venues are of no use. Briggs v. Nantucket Bank, 5 Mass. 95. A promissory note sustains a money count.

On exceptions to the ruling of the court sustaining a demurrer to the bill. Bill in equity to remove a cloud from the title to certain land in Palmyra. The points are stated in the opinion. Before the' statutes making parties witnesses, discovery was the only means of ascertaining the fact, and equity uniformly compelled the discovery. Whitfield v. Fausset, 1 Ves. 392 ; Story’s Eq. Jurisprudence, § § 83, 84; Campell v. Sheldon, 13 Pick. 19.

On exceptions and motion to set aside the verdict as excessive and as being against law and evidence. The opinion states the case.

On motion of the defendants to set aside the verdict and for new trial. The opinion states the case. When a verdict may be set aside.

<p>On exceptions.</p> <p>The ease and material facts are. stated in the opinion.</p> <p>cited: K. S., c. 77, § 51: Burr v. Bucksport & B. JR. Oo. 64 Maine, 131; Bunn. v. Kelley, 69 Maine, 147 ; Jackson v. Jones, 38 Maine, 187; Jones v. Roberts, 65 Maine, 276 ; Fayette v. Qhesteruille, 77 Maine, 28; Nunes v. Perry, 113 Mass. 276; Com. v. Coe, 115 Mass. 504; Walker v. Curtis, 116 Mass. 98; Com. v. Sturtivant, 117 Mass. 137; Blair v. Pelham, 118 Mass. 421; Costello v. Crowell, 133 Mass. 352 ; Same v. Same, 139 Mass. 590; Copeland v. Wadleigh, 7 Maine, 141; Pike v. Warren, 15 Maine, 390; Osgood v. Lansil, 33 Maine, 360; Woodman v. Chesley, 39 Maine, 45 ; Com. v. Hayes, 138 Mass. 185; Hammond's Case, 2 Maine, 33; Page v. Homans, 14 Maine, 478 ; Hopkins v. Megquire, 35 Maine, 78 ; Woodman v. Dana, 52 Maine, 11; Maine Constitution, Art. 1, § 4 ; R. S., c. 129, § 5..</p> <p>We understand that the wise provision of the English Common Law which has been adopted by a majority of the states in) the Union, refusing to allow papers to be submitted to the jury to-be used as a standard to judge of the writing which is material to-the issue, has been relaxed in Maine, Massachusetts and Connecticut, but we contend that the rule has not been relaxed as. far as contended for in this case. The rule, as it is settled in, Massachusetts and Maine, is as laid down by Greonleaf on Ev., Yol. 1, § 581.</p> <p>In Richardson v. Newcomb, 21 Pick. 315, the court says that if the paper is proved to be the handwriting of the respondent it was competent evidence. And the great caseof Commonwealth v. Eastman et als. the rule is laid down thus: "Nothing but original signatures can be used as a standard of comparison by which to prove other signatures to be genuine.” 1 Cush. 189.,</p> <p>The same doctrine is recognized in Moody v. Rowell, 17 Pick., 490, where upon the question as found by the court, " whether it was competent in order to prove that a handwriting is genuine- or fabricated and forged, to give in evidence another signature-of the same person to a paper, and otherwise competent evidence-in the cause, to enable the court and jury, by an examination and comparison of the genuine specimen with the controverted one,, to form an opinion whether the latter be genuine or not.” The-court said, "We consider the question entirely settled in this, commonwealth.” Homer v. Wallis, 11 Mass. 309.</p> <p>In Hammond’s Case, 2 Greenl. 33, the court recognized the rule as adopted in Massachusetts, where it was said, "A witness may testify that the signature in question is in the handwriting of the person attempted to be charged, from his acquaintance with such person’s hand.”</p> <p>The doctrine of Hammond’s case is recognized in Rage v. Homans, 14 Maine, 478, and in Sweetser v. Lowell, 33 Maine, 446, where it is said, " where handwriting is subject of controversy in judicial proceedings, witnesses who by study, occupation .and habit, have been skillful in making and distinguishing the .characteristics of handwriting, are allowed to compare that in .question with other writings, which are admitted or fully proved ito have come from the party, and to give opinions formed upon such comparison.” Citing the Hammond case and Richardson w. Newcomb, 21 Pick. 815.</p> <p>But in my researches I have not been able to find any authority wh'ieh allows the rule to be so perverted as to allow experts in a judicial proceeding to compare the disputed writings with other disputed writings and give an opinion based upon such comparison, as was done in this case. In Woodman v. Dana, 52 Maine, 9, Sweelser v. Lowell was reaffirmed, the court saying, " Specimens of handvvriting not otherwise pertinent to the issue, but admitted or proved to be genuine, may be introduced before the court arad jury, as a standard for examination and comparison.”</p> <p>As said by Gréenleaf in the quotation from his work, "only papers conceded to be genuine are admissible as standards.” In Ricihardson -.v. Nei.vcomb, 21 Pick. 315, "nor can a paper proposed'to be used as a standard be proved to be the original and genuine signatures merely by the opinion of a'witness that it is so, such opinion being derived solely from his general knowledge of the handwriting of the person whose signature it purports to be.”</p> <p>In Homer v. Wallis, 11 Mass. 309, "the genuineness of the standard offered for comparison, the proof must be direct to the fact of its having been written by the party, by one who see him write it.” In Sweetser v. Lowell, 33 Maine, 446, says, "The standard must be fully proved or admitted.” Woodman v. Dana, 52 Maine, 9, says, "Specimen of writings admitted or fully proved may be used as a standard.”</p>

On exceptions and motion. The case and material facts are stated in the opinion. cited: Hazard v. Loring, 10 Cush. 267 ; Shaw v. Wilshire, 65 Maine, 485. Held: in actions at law, parol testimony is not admissible to vary the terms of a written document, or to show that a bill of sale, absolute in its terms, was intended as security for a loan of money ; and the latest decisions of the supreme court of Massachusetts are to the same effect.

<p>Constitutional law. Cruelty to animals. B. S., o. 124, § 42.</p> <p>So much of R. S., c. 124, § 42, as authorizes an officer or agent of a society for the prevention of cruelty to animals, to condemn, conclusively fix the value of, and kill a horse, without notice to the owner, that he might he heard, is in violation of the constitution.</p>

On exceptions by the defendant. The point is stated in the opinion. The remark of the presiding justice that the testimony of the defendant does not contradict Mr. Walker at all,” was an expression of opinion upon the evidence, in the presence and hearing of the jury. It was none the less an expression of opinion because made to counsel.

On exceptions, and motion to set aside the verdict. Assumpsit for money had and received against the administrator of the insolvent estate of Monroe Hill, brought under the statute, upon appeal from the allowance of the claim by the commissioners of insolvency. The material facts are stated in the opinion.

On report. Bill in equity by the executors of the will of Abner Coburn to obtain a construction of the following clauses in the will and codicil. (Will.) Third. I give and bequeath to the Maine State College of Agriculture and Mechanic Arts, one hundred thousand dollars, the same to be funded, and the income only to be expended annually. Fourth.

<p> Insolvent law. Trader. B. 8., c. 70, §46. </p> <p>An insolvent debtor, wlio, for several years prior to his petition in insolvency, was engaged in purchasing small parcels of timber lands and timber growth, about three hundred acres in all, cutting and removing timber therefrom, manufacturing the same at his mill into staves and heading, constructing the manufactured materials into barrels at his shops, and transporting these products, with his teams, to market, for sale, the business involving the employment of from six to eleven men and a capital of eighteen hundred dollars, was held to be a trader within the meaning of the insolvent law.</p>

On exceptions. Appeal from the municipal court of Ellsworth. The point is stated in the opinion. cited: R. S., c. 113, § 2 ; 68 Maine, 47 ; 39 Maine, 476 ; 63 Maine, 384. The Ellsworth municipal court has not jurisdiction by the act of 1869 because the addatnnum is over twenty dollars. Special Acts of 1869, c. 29, § 12. Nor by the act of 1876 because the sole defendant was not a resident of the county. ' Special Acts of 1876, c. 298, § 2.

On report. Assumpsit against the defendants as late co-partners under the firm name of Clark and Fernald, upon a promissory note for one hundred and forty-three dollars, dated February 17, 187(1, and payable on demand. The liability of Fernald was admitted. The other defendant, Clark, relied upon a discharge in insolvency, granted February 24, 1880.

<p>On report.</p> <p>The action was debt on a judgment, and the defense was at discharge in insolvency.</p> <p>To avoid the discharge, the plaintiff relied on a partial payment of the judgment, after the discharge, and an oral promise-, at the time of such partial payment, to pay the balance of the-judgment.</p> <p>submitted without arguments</p> <p>cited: R. S., c. Ill, § 1 ^ 3 Maine, 415; 4 Maine, 9, 263; 53 Maine, 24; 66 Maine, 343;:, 73 Maine, 195.</p>

<p> Accident Insurance. Disability. Proof of loss. </p> <p>A policy of insurance against accidents provided that “if the insured shall sustain bodily injuries, . . . which shall, independently of all other causes, immediately and wholly disable and prevent him from the prosecution of any and every kind of business pertaining to the occupation under which he is insured,” certain indemnity should be paid him. Held, that to entitle the insured to recover that indemnity he was not required to prove that his injury disabled him to such an extent, that he had no physical ability to do anything in the prosecution of his business, but that it was sufficient, if he satisfied the jury, that his injury was of such a character .and to such an extent that he was not able to do all "the substantial acts necessary to be done in the prosecution of his business.</p> <p>When an agent of an insurance company, upon receiving notice of a claim .for indemnity, undertakes to make out the proof of loss and therein misstates the date of the accident, the company cannot take advantage of that misstatement, if the proof is signed by the insured without any improper motive and by the advice of the agent.</p> <p>The court in such a case may properly refuse to give a requested instruction that the plaintiff has never furnished the defendant a claim for indemnity, such as is contemplated by the policy.</p>

On report. The opinion states the case and material facts. submitted without argument. We cannot better state the law of this case than by quoting the language of United States Circuit Court Judge Clark, of New Hampshire, in his charge to the jury in the case of Ephraim Whitehouse v. Travellers'1 Ins. Go.

On report. In view of the fact that it is conclusively proven by the evidence, that all the use which the intestate ever had of his wife’s estate was in common with her, there can arise no implied promise on his part to repay anything which he may have enjoyed in common with his wife. He is presumed to be acting for her. Morton v. Craig, 68 Maine, 275. Money had and received, the only proper form of action to bring in this case.

On exceptions. The point is stated in the opinion. The judge of probate overruled the objection and allowed the claim to stand proved, on the ground that the objecting creditors had not complied with rule ten of the insolvency court.

<p> Bond. Poor debtor. Beturn of execution. </p> <p>An omission by tlie officer to return into the clerk’s office, during the lifetime of the precept, an execution upon which a poor debtor’s bond was taken by such officer, constitutes no defense to an action on the bond.</p>

On exceptions from the superior court. Trespass for the value of a wagon which plaintiff received of the defendant in an exchange, and which the defendant after-wards took and carried away, alleging that the wagon plaintiff let him have in the exchange was not the property of the plaintiff. The point is stated in the opinion. cited : Goolidge v. Brigham, 42 Mass. 548 ; 2 Addison, Contracts, § § 640, 645; 1 Greenl. ■ Ev. (7th ed.) § 558.

On exceptions. Trespass for conversion of an alleged pleasure yacht called Eunie” by the defendant, on June 16, 1886, who, on that day, as a deputy sheriff, attached the yacht as the property of one James Donnell, on a writ in favor of one Lester F. Cudworth, executor, and subsequently, on November 30, 1886, sold the same on execution issued on a judgment in that suit of Cudworth v. Donnell.

On exceptions. Writ of entry. The opinion states the question presented by the exceptions, and the material facts. cited: Webb v. Hall, 35 Maine 338 ; Strickland v. Bartlett, 51 Maine, 356 ; Child v. Sampson, 117 Mass. 63; Knight v. Thayer, 125 Mass. 25; White v. Graves, 107 Mass. 328 ; Hills v. Bearse, 9 Allen, 403 ; Chapman v. Miller, 128 Mass. 269 ; Comierais v. Wesselhoeft, 114 Mass. 552 ; Cairncross v. Lorimer, 3 Macq. II. L. Cas. 829, S. C. 7 Jur.

On exceptions. Trespass for breaking and entering plaintiffs’ close and cutting and hauling- therefrom two hundred cords of wood. The questions raised by the exceptions are stated in the opinion. The paper given by the defendants contains the° only arrangement or understanding entered into between the parties. Its meaning is to be ascertained from its terms. It is upon its face intelligible, unambiguous, reasonable and complete.

On exceptions. Appeal from the decision of the county commissioners in locating a way and the assessment upon the lands over which it was located.

On report. The opinion states the case and material facts. In White v. The Equitable Nuptial Benefit Union, 7 Ala. 251, S. C. 52 Am. Rep. 325, the court declare that such a contract, with the condition that the party is not to get married in three months is a contract in restraint of marriage and illegal and void. In Chalfant v. Payton, 96 Ind. 202, S. C. 46 Am.

On report. Appeal by the plaintiffs from the decree of the judge of probate. The facts were agreed and are sufficiently stated in. the opinion. Joshua Adams died December, 1881. His wife, the testatrix,. Mary Jane Adams, died October, 1885. He was not any relative to his wife only by marriage, and consequently the legacy to him lapsed when he died. Revised Statutes, chapter 74, § 10 ; 49; Maine, 159.

On report. Bill in equity by the widow of John Whittemore late of Temple, deceased, against the administrators, with the will annexed, and the heirs at law, to obtain a construction of the will. By virtue of the authority laid down in the 6th Mete. 400, it is not necessary that it should appear by the will itself that an omission, (we claim there is no omission in this case however) was intentional, but it may be shown by parol evidence.

On report. Bill in equity by the trustee under the will of Horatio E. Alden, late of Camden, against the widow, heirs and legatees, to obtain a construction of the will. (Will.) 'I, Horatio E. Alden, of Camden, in the county of Knox, and State of Maine, being of sound and disposing mind and memory, do make, publish and declare this my last will and testament, hereby revoking any other or others by me heretofore made. First.

On report. Bill in equity alleging, among other things, that the defendant -obstructed, blocked up and fenced in a large portion of Fourth .-street in Oldtown, and praying that the defendant may be (restrained from so doing. The case was reported to law court The bill sets out a case where one owning a tract of laud lays ©mt a street through the same and sells lots bounded and abutting thereon.

On motion to set aside the verdict and for new trial. Assumpsit on the promissory note of the defendant for one hundred and fifty dollars dated Guilford, May 2, 1883, payable six months after date to Weed Sewing Machine Company, or bearer. The point is stated in the opinion. The plaintiff in interest in the case had notice of the change when he took the note. He relies upon the note as it is, with notice of its suspicious character.

<p> Statute of limitations. Partnership. Promissory note. </p> <p>A payment made by a partner from Ms Indiyidnal funds, on a firm debt, will not stop tlie running of tbe statute of limitations in favor of Ms co-partners.</p>

On report. Assumpsit, on account annexed, to recover $645.14, the same being the balance due from the city to the plaintiff', as he claimed, under two contracts for supporting and maintaining the paupers of the city for three years, ending May 10, 1884, and for the year ending May 10, 1885.

On report. Bill in equity by the cestui que trust against her trustees, praying that the court would require the defendants to transfer to her five shares of the stock of the Boston & Albany Railroad Company. The facts are sufficiently stated in the opinion. This question of extraordinary dividends as between the life-tenant and remainder-man has been considerably discussed by the courts, both in this country and England, and different rules prevail in different'localities.

On report. Trespass quare clausum fregit for entering upon a strip of land, thirty-two feet wide, claimed by the plaintiff, and making it into a road or street. The point is stated in the opinion. In construing a deed the intention of the parties, if ascertainable, should in all cases govern.” Abbott v. Abbott, 53 Maine, 360. Parol evidence of the intention of the parties is not admissible. Sturdivant v. Hull, 59 Maine, 174.

<p> Executor. Legacy. Trustee process. “Specific.” B. S., c. 66, § 31. </p> <p>The rule of law that an executor may retain a legacy in whole or partial satisfaction of a debt due to the estate from the legatee, does not apply to a debt which has become barred by the statute of limitations, unless the will affirmatively shows that the testator intended that such an offset should be made.</p> <p>A creditor, who upon trustee process attaches a legacy due to his debtor, has the same right which the debtor would have, to interpose the statute of limitations, as a defense against a debt claimed by the executor against the legatee in satisfaction of the legacy.</p> <p>The word “specific” as used in E. S., c. (55, § 31, is not to be taken in a technically testamentary sense, but means definite, special or particular in a general sense.</p> <p>Any legatee of a residuary or specific legacy may recover the same in a suit at law.</p>

On report. An action on the case for interruption of an easement or right of way over a stairway in the defendant's store, by blocking up a doorway at the head of the stairs with bricks and mortar,… Held: that the right to make use of this passed, by implication, by the deed of the land on which the mill was standing. New Ipswich-Factory v. Butchelder, 3 N. H. 190.

<p> Husband and wife. Collecting a debt of husband from real estate standing in wife’s name. Equity. </p> <p>The burden is upon the creditor to show, that the labor and means of the debtor contributed towards the payment of real estate, the title to which stands in the name of the debtor’s wife, in an equitable proceeding to collect the debt from snch real estate.</p> <p>It is not sufficient to show personal labor of the husband of too little value for the law to take cognizance of.</p> <p>Nor that it was paid for in part by money l’eceived by the wife from boarders, it appearing that she paid so much of the bills for provisions as were consumed by the boarders.</p> <p>Nor that the labor of the wife’s father, at a time when he was boarding with the husband, contributed, as a donation to his daughter, the wife.</p>

On exceptions from the superior court. The opinion states the case. The point in issue is whether R. S., c. 40, § 70, or c. 65 of the Public Laws of 1859, is the law prohibiting the taking of fish in Great Pond in Kennebec by use of nets other than a dip net.

<p> Promissory note. Joint promisor. </p> <p>A note was made payable to the order of the maker and endorsed by him on the back to the order of the plaintiff, and the defendant also signed the endorsement, before the delivery to the plaintiff. Held, that the defendant is an original promisor.</p>

<p> Bastardy process. Final judgment. Bond. Surrender of principal. </p> <p>On a complaint under the bastardy statute, the adjudication and order of the presiding justice, that the defendant is adjudged the father of the child, and that he stand charged with its maintenance with the assistance of the mother, constitute the , “ final judgment;” the time of the announcement and entry thereof in court, is the date of the judgment; and no surrender of the defendant on any day thereafter in court will discharge the sureties on his bond.</p>

On exceptions from superior court. The opinion states the case. cited : Doyen v. Leavitt, 76 Maine, 247; Herring v. Policy, 8 Mass. 113; Chase v. Gilman, 15 Maine, 64; Eldridge v. Preble, 34 Maine, 148.

On report. The case is stated in the opinion. The evidence in the case clearly and fully shows that there is now due the town from Edward C. Hale, and his sureties on his collector’s bond, the sum $2632.48, in his capacity as collector for 1877. The town has been compelled to pay the state and county tax for him and he must be held for that. Richmond v. Toothaker, 69 Maine, 451.

On exceptions. Bill in equity against defendant, Peterson, and Forest City Steamboat Company. The exceptions were to the ruling of' the court sustaining a demurrer to the bill. The material facts are stated in the opinion. cited: Story, Eq. Juris. § 1040; Pomeroy, Eq. Jur. § 1288 ; Benjamin on Sales, Yol. 1, pp. 98 and 100 ; Jones on Mortgages, § 152; Field v. Mayor of N. Y. 6 N. Y. 179; McCaffrey v. Woodin, 65 N. Y. 459 (22 Am.

On report. Bill in equity by the executors of the last will and testament of Paul R. Hazeltine, deceased, for a construction of the will. Held: that the devise was void for uncertai nty. . In Lord Ciieyney’s case, 5 Rep. 68, b. a father made a devise to his son John. The testator in fact had two sons living named John.

On report from superior court. An notion for damages for non-delivery of a night message. The facts are stated in the opinion. The first defence set up by the brief statement raises the old question of the power of a telegraph company to limit its liability by a printed contract contained in its printed blank which this court has long since considered and decided in the well known cases of True v. The International Tel. Oo. 60 Maine, 9, and Bartlett v. Western Union Tel.

On exceptions. An action for damages sustained by plaintiff by reason of an injury to his mare while in the keeping of the defendants.

<p>On exceptions.</p> <p>An appeal from a final decree of a court of insolvency denying the appellant a discharge. The point is stated in the opinion.</p>

On report. The opinion states the cases and essential facts. It would be expected that a man having a hack would use it for funerals, weddings, going to places of entertainment generally, hotels, and, if necessary, to repair shops for temporary repairs, and that such a use would not be inconsistent with the contract of insurance. In support of this position we cite, Lyons v. Providence and Washington Insurance Co. 13 R. I. 347 ; S. C. 43 Am.

On report. Assumpsit to recover the par value of ten shares of capital stock which the plaintiff alleges the defendant’s intestate agreed to take and pay for, by' signing an agreement to form a corporation with a capital stock of forty thousand dollars and to take and pay for ten shares of the same. The point is stated in the opinion. This case is not dissimilar from the case of P. P. Co., v. Kinsman, 77 Maine, 370.

On report of facts agreed. Appeal from the decree of the judge of probate. The'fácts are stated in the opinion. .cited: Davis V. S. D. No. 2, in Bradford, 24 Maine, 351; ¡Estes v. /S. D. 19, in Bethel and Milton, 33 Maine, 171; Whittier v. Sanborn, and al. 38 Maine, 34; Jordan v. 8. D. ¡No. 3, in Lisbon and Webster, 38 Maine, 169 ; Norton V. Soule, 75 Maine, 386 ; 8.

<p> Practice. Want of service. No judgment. </p> <p>It is correct to refuse to allow judgment, when from an inspection of the officer’s return it appears that the service, by summons, was only thirteen days before the court.</p>

On exceptions from the superior court. The exceptions were to the ruling of the court in overruling a general demurrer to the declaration. The point is stated in the opinion. Held: that it was open to the plaintiff to prove sales of intoxicating liquors which produced intoxication in her husband, on several occasions between the dates stated in the writ.

On exceptions from superior court. Indictment for keeping and maintaining a liquor nuisance. The point is stated in the opinion.

On motion by the defendant to set aside the verdict, which was for plaintiff in the sum of §2733.33. From superior court. The opinion states the case. As to the requested instruction that car inspectors and brakemen are fellow servants. The rule given follows Shanny v. Androscoggin Mills, 66 Maine, 426. In the following cases it has been held that car inspectors and brakemen are not fellow servants. Macy v. St. Paul & Dakota By. Oo. (Minn.) 28 N. W. Rep. 249; Miss. Pac. By.

<p> Way. Practica. </p> <p>When, on appeal, the judgment of county commissioners, locating a highway has been affirmed and the proceedings duly closed and recorded, the commissioners may, within the three years allowed for making and opening the way, entertain a petition praying for its discontinuance.</p>

On report. Au indictment under the statute for the alleged negligent killing of William II. Benjamin, of Biddeford, in a collision at the Main street crossing in Biddeford, in the evening of November 26, 1886. The facts are stated in the opinion. No bell was rang as required by Revised Statutes, c. 51, § 33. This was negligence per se. Webb v. R. & K. Railroad, 57 Maine, 134; Whitney v. M. CJ. Railroad, 69 Maine, 210; Hummer v. E. Railroad, 73 Maine, 593 ; Commonwealth v. 1Í.

<p> Deed. Boundary. Way. </p> <p>When tlie premises conveyed by a deed are described as bounded upon one side by tlie continuation of a side line of a street, tliat does not constitute a dedication of the land for a street up to and past the premises conveyed, though the continuation of the street was contemplated.</p> <p>If the grantor by a second deed convey to the same grantee the fee to the center lino of the contemplated street, the acceptance of that deed would constitute a waiver of all rights, if the grantee had any. beyond the center line of the contemplated street, until it was actually established as a street.</p>

On exceptions. Indictment charging the respondent with being- a common seller of intoxicating liquor between the. 1st day of June, A. D. 1887, and the date of the indictment. At the trial the presiding justice allowed evidence to be introduced by the government tending to show that the defendant was a common seller before the first day of June, 1887, and instructed the jury that the time mentioned in the indictment was not material.

<p>On exceptions from superior court.</p> <p>The case and material point are stated in the opinion.</p> <p>It is a well known physiological fact that peculiarities of form and feature and personal traits are often transmitted from parent to child, and although taken by itself, proof of such resemblance might be insufficient to establish its paternity, but it is clearly a circumstance to be considered in connection with the other facts. Finnegan v. Dugan, 14 Allen, 197 ; Gilmanton v. Ham, 38 Ñ. H. 108 ; State v. Woodruff, 67 N. C. 89 ; Wharton on Ev. Yol. 1, 347 ; Warlech v. White, 76 N. C. 175 ; State v. Smith, 54 Iowa, 104; State v. Britt, 78 N. C. 439.</p> <p>In State v. Woodruff, 67 N. C. • 89, where the child was exhibited to the jury and comments made by the attorney for the complainant, the court said, "It has been the universal practice in this state for more than forty years, and is founded in common sense and sound reason.”</p> <p>In an action for crim. con. the child claimed to be the offspring of the defendant was exhibited to the jury. And in this case the court instructed the jury as follows: " If you believe that the child of plaintiff’s wife shown to you during the trial resembles the defendant, and experience teaches you that there is anything reliable in this appearance that would be safe for you to found an opinion on, you may consider it in corroboration of her evidence.” This instruction the appellate court sustained. Stumm v. Hummell, 39 Iowa, 478 ; State v. Boioles, 7 Jones, N. C. 579.</p> <p>In a proceeding in bastardy, the exhibition to the jury of the child and the pointing out by the counsel for the state of certain points of resemblance between such child and the defendant was hold to be proper. State v. Smith, 54 Iowa, 104.</p> <p>Professor Greonleaf, in his work on Evidence, Yol. 2, in a note on page 142, refers to Slate v. Bowles, above cited, and seemingly approves the decision therein.</p> <p>Wharton, in his work on Evidence, approves the practice, Yol. 1, p. 347, and cites authorities in support thereof.</p> <p>The two leading cases opposed to our position are State v. Danforth, 48 Iowa, 331, and State v. Risk, 19 Ind. 152.</p> <p>There are many cases reported where it is held that testimony of witnesses to prove the likeness between the defendant and the child is inadmissible, as in the following: Keniston v. Roxoe, 16 Maine, 38; XT. S. v. Collins, Cranch, Eep. Yol. 1,592; Eddy v. Gray, 4 Allen, 435. But these cases are foreign to the issue.</p> <p>cited: Keniston v. Roxoe, 16 Maine, 38; Hanawalt v. State, 64 Wis. 84; S. C. 54 Am. E. 588 ; State v. Danforth, 48 Iowa, 43 ; 30 Am. E. 387 ; Risk v. State, 19 Ind. 152; Reitz v. State, 33 Ind. 187; People v. Carney, 29 Hun. (N. Y.) 47 ; Petrie v. Howe, 4 Thomp. & Cook, (N. Y. Supreme Ct.) 85 ; Robnett v. People, 16 111. App. 299; U. S. v. Collins, 1 Cranch. C. C. 592; Jones v. Jones, 45 Md. 144; 1 Beck, Med. Jur. 615; Wills, Circ. Ev. (5 Am. ed.) 118, *94, 117 ; Gilmanion v. Ham,, 38 N. H. 108; State v. Bowles, 7 Jones, (Law N. C.) 579; State v. Britt, 78 N. C. 439; Waxdeck v. White, 76 N. C. 175; State v. Woodruff, 67 N. C. 89; Hutchinson v. Stale, (Neb.) 27 N. W. Eep. 113 ; State v. Sxnith, 54 Iowa, 104; S. C. 37 Am. E. 192 ; Paulk v. State, 52 Ala. 427 ; Eddy v. Gray, 4 Allen, 436 ; Finnegan v. Dugan, 14 Allen, 197 ; Young v. Makepeace, 103 Mass. 50.</p>

<p>On motion to set aside a special verdict.</p> <p>The opinion states the case.</p>

Bill in equity. The bill alleges that the plaintiff is the creditor of Paul Walton, and that the other defendant holds the title to the real estate of Paul Walton by, or through a conveyance which is fraudulent and void as to creditors, and prays that Paul Walton bo required to pay him the amount of his debt, or the other defendant be required to give him a good and sufficient deed of the real estate. The other material facts are stated in the opinion.

On exceptions. The opinion states the point and material facts. cited: Cooley, Torts, 468; Gall v. Mitchell, 39 Maine, 465; Shaw v. Reed, 16* Mass. 450; Addison, Torts, 810; Bond v. Chapin, 8 Met. 31. Kerr v. Mount, 28 N. Y. 659.

<p> Insolvent law. Discharge. Promissory note. Surety. </p> <p>The discharge in insolvency of one surety on a promissory note given before the insolvent act took effect, is no bar to an action on a judgment for contribution, recovered by a co-surety after the insolvent act took effect and before the insolvent’s petition and discharge.</p>

On exceptions. Writ of entry to recover certain parcels of land in Woolwich, Maine. The defendant offered in evidence a deed of the demanded premises, from Hannah Savage to David Savage, her husband, dated January 24, 1880, to the admission of which deed the plaintiff objected upon the ground that it was the deed of a married woman to her husband, and, for that reason, invalid. This objection was overruled, and the deed was read in evidence, and the plaintiff had exceptions.

Cn exceptions and motion. Assumpsit on a.promissory note which was given by the indorser of a prior note, and that indorsement was the only consideration of the note in this case. The point and material facts are stated in the opinion.

On exceptions. Petition for the custody of Arthur B. Stetson, a minor child, of the petitioner and respondent. In 1883 a divorce was granted the respondent against the-petitioner, and the custody of the minor child was then given to the father. The petitioner resides in Boston, Massachusetts.

On exceptions. Petition for leave to enter and prosecute an appeal from the decree of the judge of probate, granting a license to the administrator on the estate of William Beckett, 2nd, to sell lands for the payment of the debts of the estate, which the deceased in his lifetime conveyed to the petitioner. The presiding justice ruled, as a matter of law, that the petitioner had no appeal.

<p>Indictment. Nuisance. Stationary engine. Ii. S., c. 17, § § 17, IS.</p> <p>An indictment for erecting and using a stationary steam engine without license must allege the use of the engine without license at a specified time and place.</p>

<p> Trover. Fixtures. Machinery. Mortgage. </p> <p>A grantor conveyed a mill privilege by metes and bounds and in the same deed, by a distinct clause, ho also conveyed “the machinery and its appurtenances of the grist mill, . . . with the right to use said machinery in said mill for two years from this date free from rent.” This mill was not within the metes and bounds of the privilege conveyed. As a part of the same transaction the g'rantoe gave a mortgage back to secure the payment of the purchase money, field that this transaction made the machinery personal property, whatever it may have been before.</p>

<p>On exceptions.</p> <p>The plaintiff is a corporation located in New York.</p> <p>The case and material facts «re stated in the opinion.</p> <p>The case of Trainer v.-Morison, 78 Maine, 160, decides that an agent who has authority to contract for the sale of chattels has authority to collect pay for them (at the time, or as a part of the same transaction) in the absence of any prohibition known to the purchaser. But we do not understand that that case denies the well established rule that agents who are merely employed to sell, and who are not entrusted with the custody of the goods, have no implied authority to receive payment. In fact, Judge Haskell, in the opinion in Trainer v. Morison, supra, says, "A traveling agent, who assumes only to solicit oi’ders for goods to be sold at the option of his principal, may well be held unauthorized to make collections.” See Benjamin on Sales. § 1095, and cases cited.</p> <p>An agent who has authority to receive payment has power to receive it in money only. See Story on Agency, § 98, where the rule is laid down in this language : " So an agent authorized to receive payment has not an unlimited authority to receive it in any mode which he may choose; but he is ordinarily deemed intrusted with the power to receive it in money only.” And see the English cases there cited. In Benjamin on Sales, § 1099, the principle is thus stated : "Payment to an agent must be in money.” And further, that a broker or agent employed to sell, has prima facie no authority to receive payment otherwise than in money, according to the usual course of business, has been well established.” And see notes in fourth Am. Ed. to above section.</p> <p>Independently of any reasoning upon the subject, the very question in dispute has long been settled. In Story on Agency, § 78, it is said, " An authority to an agent to sell goods does not authorize him to exchange them in barter, or to pledge them ; for there is no usage or trade to that extent.” And the English case of Guerreiro v. Peile, 3 Barnowall and Alderson, 616, is cited in support of the doctrine. In the comparatively recent case of Glough v. Whitcomb, 105 Mass. 482, almost the exact question, if there can be any question, as to a principle so long and clearly settled, is decided. It is there said, " A commission, allowed to one who solicits orders upon sales effected through such orders, does not constitute him or prove him to be an agent with authority to make absolute contracts of sale; much less to receive payments, and make agreements to receive payments, in other goods by way of barter.”</p> <p>cited : Butler v. Maples, 9 Wall. 766; Trainer v. Morison, 78 Maine, 163; Methuen Oo. v. Hayes, 33 Maine, 169.</p>

<p>.On report.</p> <p>'The opinion states the case and material facts.</p> <p>There was, we submit, enough evidence of the custom. The ¡presiding judge in fact said it was not necessary to further .multiply the witnesses. No certain number of witnesses is .necessary to prove a custom. Adams v. Pittsburgh Ins. Go. 40 Am. Rep. 662.</p> <p>The custom was general, as clearly proven. Defendant is presumed to have had notice of it, and knowledge of its existence. Stevens v. Reeves, 9 Pick. 197.</p> <p>It was so uniform and had been so long continued that the defendant’s knowledge is to be inferred. Winslow et al. v. Dillaway, 4 Met. 223.</p> <p>When one stands by in silence and sees valuable services rendered for this benefit, such silence, accompanied with knowledge on his part that the party rendering the service expects payment therefor, may fairly be treated as evidence of an acceptance of the service, and as showing an agreement to pay for such services. Day v. Gatou, 119 Mass. 515.</p> <p>The maxim Qui tacet consentiré videtur, applies when the party is fairly called upon to deny or admit his liability, and silence has often been interpreted as admission of liability, when one is fairly called upon to speak in the face of such facts. Id. 516 ; Gonnor v. Haelcley, 2 Met. 613 ; Preston v. Am. Linen Go. 119 Mass. 400.</p> <p>cited : Gannon v. Hargadon, 10 Allen, 106; Sowers v. Lowe, 9 Atl. Rep. 44; Peck v. Herrington, 109 111. 611; Anderson v. Henderson, 16 Nor. East. Rep. 232 ; Wash. Ease. & Sew. 353 ; Bangor v. Lansil, 51 Maine, 521 ; Greeley v. M. G. R. R. Go. 53 Maine, 200; Olíase v. Silverstone, 62 Maine, 175; Parker v. B. & M. R. R. Go. 3 Cush. 107 ; Gould, Waters, § 294; 2 Addison, Torts, § 1049 ; Shear. & Red. Neg. § 511 ; Luther v. Winnimissett Go. 9 Cush. 171 ; Flagg v. Worcester, 13 Gray, 601; Dickinson v. Worcester, 7 Allen, 19 ; Parks v. Newbury - port, 10 Gray, 28 ; Leach v. Perkins, 17 Maine, 462 ; Latimer v. Alexander, 14 Ga. 259 ; Randall v. Smith, 63 Maine, 105 ; Homer v. Dorr, 10 Mass. 26 ; Strong v. Bliss, 6 Met. 393 ; Home v. Mat. Ins. Go. 1 Sandf. (N. Y.) 137; Higgins v. Moore, 34 N. Y. 417; Marshall v. Perry, 67 Maine, 78 ; Sipperly v. Stewart, 50 Barb. 62 ; Minn. R. R. v. Morgan, 52 Barb. 217 ; Boardman v. Gaillard, 60 N. Y. 614.</p>

<p>On report on facts agreed.</p> <p>This was an action of assumpsit upon five several notes and one check given by the defendant to the plaintiffs, at the several dates thereof, for the several amounts stated iu said notes and check.</p> <p>The notes were all dated at Saco, in the county of York, payable at the York National Bank in said Saco, and the dates, times and amounts are as follows :</p> <p>Date. Time, after elate. Amount.</p> <p>October 14, 1879, 60 days, §344.00</p> <p>November 11, 1879, 30 days, 319.00</p> <p>November 17, 1879, 30 days, 150.00</p> <p>November 25, 1879, 30 days, 250.00</p> <p>December 10, 1879, 30 days, 295.00</p> <p>The check was on the same bank, and dated December 10, 1879, for the sum of §135.00.</p> <p>All the notes and the check were duly presented for payment, and protested for non-payment. No part of the same has been paid.</p> <p>Other material facts stated in the opinion.</p> <p>If it should be thought that the examinations furnish no criterion by which to judge of reasonable diligence, certainly the day of the second meeting does, which in this case was January 5, 1881. The second meeting is appointed by the assignee with the approval of the judge. The debtor has nothing to do with it. Though the law says it should be within three months from the issuing of the warrant, this is often delayed beyond that time, especially if adjudication is delayed, and it is merely directory. If held after the three months it does not vitiate the proceedings. Kimball v. Loving, 11 Law Rep. 34; cited Hamlin’s Insolv. Law, 51. He cannot get his discharge until he has taken the final oath. That must be taken at the second meeting.* R. S., c. 70, § 43 ; Bump, on Bankruptcy (10th ed.), p. 270.</p> <p>It has been said that the insolvent should file his petition at any time after the time designated, and the final settlement of the estate, which of course cannot be made until the second meeting. In re Bvightman, 5 N. B. R. 213 ; In re Ingersoll, No. 520, Maine, Dist. Ct.; cited Hamlin’s Insolv. Law, 52.</p> <p>When proceedings do bar the commencement or maintenance of suits,'they stop the running of the statute, during the time when the action is so prevented. Oollester v. Hailey, 6 Gray, 517 ; Stoddard v. Doane, 7 Gray,, 387 ; Richardson v. Thomas, 13 Gray. 381.</p> <p>So it was held that a suit might be commenced against an adjudged bankrupt, though it could not be prosecuted to final judgment pending proceedings under the language of U. S. Rev. Stat. § 5106. But direct and positive authority for this view of the case is plentiful. Doe v. Erwin, 15 Rep. 305 ; 134 Mass. 90.</p> <p>"As a general rule when a temporary incapacity to sue grows out of some particular provision of a statute, the time during which such temporary disability continues should be excluded from the computations.” This is exactly our case. Angelí on Lim. § 63.</p> <p>"The law imposes the limitation, other law imposes the disability. It is nothing therefore but a necessary legal logic that one period shall be taken from another.” Semmes v. Hartford Ins. Go. 13 Wall, 158-160.</p> <p>"Statutes of Limitation, in fixing a period within which rights of action must bo asserted, proceed upon the principle that the courts of the country where the person to bo prosecuted resides, or the property to be reached is situated, are open during the prescribed period to the suitor.</p> <p>"The principle of public law which closes the courts of a country to a public enemy during war, renders compliance by him with such a statute impossible.” Brown v. Hiatts, jl5 Wall. 177-184.</p> <p>It is therefore plain that there may be other things than statute provisions that will prevent the statute of limitations from running. This has been recognized by Massachusetts decisions. First Mass. Turnpike v. Field, 3 Mass. 201 ; Homer v. Fish, 1 Pick. 435 ; Welles v. Fish, 3 Id. 74, and cases in note, and by the IT. S. Circuit Court in Maine; Oarr v. Hilton, 1 Curtis, 230 — 238, in New Hampshire; Sherwood v. Sutton, 5 Mason, 143, and in Massachusetts; Trecothiclc v. Austin, 4 Mason, 16 — 27.</p> <p>In another case precisely like this, and where the same defence was made, the court held that no suit could be brought while proceedings in bankruptcy were going on and the statute did not run during that time. Greenwald v. Appell, 17 Fed. Rep. 140.</p> <p>The analogous cases of suits by or against assignees where concealment or want of discovery, prevents the two years from running, illustrate the doctrine we contend for. Bailey v. Glover, 21 Wall. 342 ; Traer v. Clews, 115 U. S. 528 ; TJpton v. McLaughlin, 105, U. S. 640-643; Gifford v. Hlms, 98 U. S. 248 ; Duff v. Mat. Bank of Wellsville, 13 Fed. Rep. 65 : Bardes v. Gibson, 17 Id. 293-299; West Port. Homestead Assn. v. Lownsdale, Id. 205-207.</p> <p>Bailey v. Glover, seems to have been the leading case on this particular point and "unless subsequently overruled by this court is conclusive of the point under discussion. It never has been overruled. It has often been cited by this court, but has never been doubted or qualified.” Rosenthal v. Walker, 111 U. S. 185-191.</p> <p>So the suspension of the power to sue by the late civil war, is not treated as a part of the time limited, though not so provided by statute. Hanger v. Abbott, 6 Wall. 532 ; and this principle applies to an appeal, The Protector, 9 Wall. 687 ; U. S v. Wiley, 11 Id. 508.</p> <p>So in Rhode Island where a suit was brought against a bankrupt the court say :</p> <p>"The plaintiff contends that the time during which he was by law prohibited from suing his claim is not to be reckoned into the pefiod fixed by the statute of limitations. We think he is right. The rule to be deduced from the oases; ancient and modern is that a disability happening by an 'invincible necessity,’ constitutes an exception from the statute of limitations, and is to be taken to have the same effect as those disabilities which are expressly excepted from the statute,” and then goes, on to say that a creditor,-after his debt is proved in bankruptcy, may commence and prosecute a suit to any point short of final judgment. It clearly appears that the court considered a prohibition of the commencement of a suit an "invincible necessity.” Hill v. Phillips, 27 A. L. J. 518 ; S. C. 14 Rhode Island, 93.</p> <p>It is true that since the commencement of this suit the legislature has seen tit to enact the main proposition of law upon which we depend. Laws of 18 87, c. 118.</p> <p>But this can only be construed to mean that the legislature has determined that the law ought to bo as we claim it.</p> <p>"Instances are not wanting in which the legislature designingto make the law more explicit, have enacted statutes which are found to be only declaratory of the law as it previously existed.” Wood v. Decoster, 66 Maine, 542-544; Dwarris on Statute, pp. 55, 56-58.</p> <p>cited: Little v. Blunt, 9 Pick. 490; Presbrey v. Williams, 15 Mass. 193: Pickard v. Valentine, 13 Maine, 412; Byles, Bills, *'331, *333, *336 ; 2 Greenl. Ev. § § 435, 439 ; Angel, Lim. § § 194, 196; Phillips v. Sinclair, 20 Maine, 269; Mercer v. Selden, 1 Howard, 52; Pager v. Com. 4 Mass. 188; 2 Chitty, Contracts, 1226; R. S., c. 1, § 5; Prentice v. Dehon 10 Allen, 355; Schwartz v. Drinkwater, 70 Maine, 409 ; Barker v. Haskell, 9 Cush. 218; Palmer v. Merrill, 57 Maine, 26; Oollester v. Hailey, 6 Gray, 517; Stoddard v. Doane, 7 Gray, 387 ; Roscoe v. Hale, 7 Gray, 274; Richardson v. Thomas, 13 Gray, 381.</p>

On report. Bill in equity' by the executor of the last will of Charlotte Ilsley Harward to obtain a construction of the sixth clause of the will. The point upon which the case turned is stated in the opinion. When a fund is left in trust, the income or interest of which is paid over, necessary expenses of the trust, such as taxes, may be first deducted and the net income paid the beneficiary. Arnold v. Mower, 49 Maine, 561 ; Clark v. Foster, 8 Met. 568.

On exceptions and motion to set aside the verdict. The opinion states the case. Held: that there was no admiralty lien arising on a contract for building a ship ; and the proceeding in the state court for enforcing that lien was sustained.

<p>On exceptions.</p> <p>An action of trespass for an alleged unlawful arrest and in detention of the plaintiff, on an execution issued on a judgment recovered before the municipal court of Norway, in favor of this defendant and against this plaintiff.</p> <p>The point raised by the exceptions is stated in the opinion.</p> <p>The action is not against the officer making the arrest, or one aiding the officer, but is against the principal who caused the arrest to be made. The plaintiff in this action was not liable to arrest in the former action, being then and there a married woman, and the law prohibited her arrest. R. S., c. Gl, § § 4 and 5.</p> <p>The execution was irregularly obtained in the form it was, in that it ran against her body, contrary to law.</p> <p>"Where an arrest is made upon legal process, regular upon its face, and therefore sufficient to justify an officer, but which has been fraudulently or irregularly obtained and issued, the party who procures it, and directs it or causes it to be served, is not justified b_y it. He is bound to see to it, before he sets the law in motion, that the process he obtains is regular and valid: and if it is not, he is liable in an action of tort in the nature of trespass.” Gassier v. Fates, 139 Mass. 462 ; Emery v. Hapgood, 7 Gray, 55 ; Gody v. Adams, 7 Gray, 59.</p> <p>If the defendant was not liable for the arrest in the first instance, there can be no doubt but that he became liable when he had knowledge of the privilege; and for her subsequent detention. See Hilliard on Torts, Vol. 1, Ch. 6, p. 231.</p> <p>.In the case of Garry v. Pringle, 11 Johns. 444, New York reports, the action for false imprisonment was sustained against the party at whose instance the arrest was made, by one who was privileged, as being a man with a family. See also Gold v. Bissell, 1 Wend. 210; Blake’s Case, 106 Mass. 504.</p> <p>In Hubbard v. Sanborn, 2 N. H. 468, Kichardson, C. J., in his opinion, gives as a reason why the plaintiff in the action where the arrest was made would not be liable, "because the arrest may be without his knowledge.”</p> <p>The question of marriage was settled by the jury; and submitting to the process of disclosure to procure her release was not a waiver of any'rights to redress. See 129 Mass. p. 40.</p> <p>cited: Gassier v. Fates, 139 Mass. 462 ; Belk v. Broadbent, 3 T. R. 183; Marks v. Townsend, 97 N. Y. 590; McGuinty v.' Herrick, 5 Wend. 240; Scott v. Shepherd, 1 Smith Lead. Cas. 764; 1 Hilliard, Torts, p. 198, § § 3, 12, 13; Blanchard v. Goss, 2 N. H. 491; Kimball v. Molony, 3 N. H. 378; Williams v. Smith, 14 C. B. 596; Waite’s, Actions and Defences, "False Imprisonment.” Deyo v. Van Valkenburgh, 5 Hill. 242 ; 5 Yt. 588.</p>

<p>On exceptions.</p> <p>The opinion states the case.</p> <p>cited: Hunneioell v. Hobart, 42 Maine, 565; Bradley v. Davis, 14 Maine, 44; Horton v. Oraig, 68 Maine, 277.</p>

On report. Bill in equity, heard on bill, answer,.and proof. Tho opinion states the case. Held: that when the legislature had reserved a general power of altering, ¡unending or repealing a charter, it might impose any additional condition or burden, connected with the grant, which it might deem necessary for the welfare of the public, and which it might originally and with justice have imposed.” English v. N. H. & No. Hampton…

On report. Bill in equity. The opinion sufficiently states the facts. contended that the case showed : 1st. An express trust created by parol and proved by some writing.” Some writing” means any writing however informal from which the existence of the trust in the estate and the terms of it can be sufficiently understood, whether it was intended by the signer as such or not.” McClellan v. McClellan, 65 Maine, 500 ; Pomeroy on Equity, § 1006-1007, and notes.

<p>On exceptions from the ruling of the presiding justice on appeal from insolvency' court.</p> <p>Proof of debt by Daniel W. Harding, against the individual estate of Josiah Holbrook, who was a member of the firm of J. & O. D. Holbrook composed of himself and his son Cyrus D. Holbrook, against whom insolvency proceedings were instituted November 2, 1886.</p> <p>The appellant John F. Chadbourne, was a firm creditor, and appealed from the allowance by the court of insolvency of the claim of Harding against the individual estate of Josiah Holbrook.</p> <p>It was objected that Chadbourne, being only a firm creditor, had no right of appeal under the statute, from a claim allowed against the individual estate of one co-partner in the firm. This objection the court considered not well taken, inasmuch as the individual assets of Josiah Holbrook were shown to be more than sufficient to pay the individual creditors in full, and therefore overruled the same.</p> <p>It appeared that on August 7, 1886, Harding received a promissory note for four hundred and eighty-two dollars and ninety-two cents, of that date, payable to his own order, on demand with interest, signed by C. D. Holbrook and Josiah Holbrook, which he claimed was given in renewal of a note dated in 1882 or 1883, and signed by the same parties for the sum of about four hundred dollars.</p> <p>The appellant insisted that this note, within four months of the Holbrooks’ insolvent proceedings, and in fraud of the insolvent law, was given in renewal of two notes; one, for one hundred dollars, signed by 0. D. Holbrook and the other for three hundred dollars signed by the firm of J. & C. D. Holbrook, given for that sum loaned the firm.</p> <p>The presiding justice ruled that the giving of these notes was a preference to which ruling the defendant excepted.</p> <p>claimed : 1st. That this was not a preference made void by the insolvent law. 2nd. That a firm creditor should not be heard objecting to a claim against an individual estate. 3rd. That proof was properly made against the individual estate of Josiah Holbrook.</p> <p>Section 29 of c. 70, R. S., must be construed in. connection with § § 33, 46 and 52 of the same chapter and is of no wider scope and extent than they. "All these provisions relate to the same subject matter, the property, and all three aim to protect property of insolvents from fraudulent disposals.” Bump, on Bankruptcy, (9th, ed.) pp. 837, 795, 636-7, 397.</p> <p>In a careful examination of authorities we find no transaction pronounced invalid except where there was either a nudum pactum contract or the obtaining of property of the debtors and in a direct manner.</p> <p>We submit that a preference must have to do directly with property and in a direct manner and that a giving of credit which may change the legal mode of proof in insolvency, is not-embraced in the prohibition of the insolvent act.</p> <p>Appellant, being a creditor of the firm,, has no right of appeal from the decision of the judge of the court of insolvency. George v. Grant, 28 Hun. (N. Y.) 169; Mxparte Wliiting,14: Nat’lBan. Reg. 307.</p> <p>We contend that the insolvent law makes void, not a transaction which ultimatel}1' works out a preference, but the giving of a present preference by the turning out, the transfer, or conveyance, or the giving of security,-upon property.</p> <p>There being full consideration for Josiah Holbrook’s signing his name to the note offered for proof, the old notes not being-paid by any money or property of the firm or either of its-members, and no provision of the insolvent law making it invalid, especially upon the objection of firm creditors proof was rightly made against the individual estate of Josiah Hoolbrook. It was improperly expunged and the exceptions should be sustained.</p>

On report. Bill in equity, brought to determine the construction of a will. The opinion states the material tacts. cited: On the jurisdiction of the court, Story’s Eq. PL § § 77, 96 ; Wood v. Dummer, 3 Mason, 317 : Grease v. Babcoclc, 10 Met. 525, 531; Daniel’s Oh. Pr. & PI. p. 191; Robinson v. Smith, 3 Paige, 222; Story, Eq. PI. § § 94, 78, 99, 105, 207, B; Harvey v. Harvey, 4 Beav. 215 ; Story, § § 120, 116.

On exceptions. Appeal of James O. White, a creditor who had proved his debt against the insolvent estate, from a decree of the judge of the court of insolvency dismissing the written objections of the creditor to the discharge of the insolvent, on the ground that they were not seasonably filed, and to the decree granting- the discharge.

<p> Ways. Defect. Notice. </p> <p>Notice to the town officers that a culvert was not of sufficient size to readily vent the water seeking its way through it, in time of a freshet, is not notice ■ of a defect in the way produced by an overflow of the water at such time.</p>