Volume 81 — Maine Reports

On eepoet. This was an action of assumpsit against all the owners of the schooner, J. G. Stover. The plaintiff claims as assignee of Amos S. Arey, a part owner, who loaned money to S. P. Hall, a part owner and agent of the vessel, and took Hall’s note, signed by him as agent for schooner and owners. The writ contained two counts upon the promissory note. There was also a count for money lent, money expended, and money had and received.

Bill in Equity'. Heard on demurrer to bill. The case is stated in the opinion. Bill cannot be sustained at common law. The statute, on which-the bill is founded, has no reference to an interest by bond. Case presents no special claim in equity. The husband is alleged to have paid the first two notes. If so, his wife owes him $200 ; he can be compelled to assign this indebtedness on a poor debtor’s disclosure.

On REPORT. Assumpsit on the defendants’ promissory note given to the town for a quitclaim deed of a lot of land, executed by the town treasurer, but without authority. It was admitted that the town had no title to the land, and defendants never had possession. Defendants knew there was no authority for the conveyance. Chapin, town officer and clerk had notice of want of authority. Johnson v. Williams, Kan. Sup. Ct., Albany Law Journal, vol. 36, page 238.

On report. After the evidence was out the action was withdrawn from the jury and reported to the law court. The full court were to render such decision as the legal rights of the parties require, from the admissible evidence, being invested with jury powers, &c. The case appears in the opinion.

On exceptions. This was an appeal from the probate court appointing an administrator on the estate of Joseph Dawes, deceased. The appellant alleges, among other reasons for the appeal, that sufficient facts were not alleged in the petition for appointment, and that sufficient facts did not exist to authorize the granting of administration.

On exceptions, to the ruling of the court in overruling defendant’s motion in arrest of judgment.

On exceptions, to the ruling of the superior court, Kennebec county, in sustaining plaintiff’s demurrer to a plea of release puis darrein continuance filed in that court by tbe defendant.

On exceptions, and motion to set aside tlie verdict and for a new trial, by plaintiff. The case is stated in the opinion.

On exceptions. An appeal from the award of the county commissioners of Somerset county for damages sustained by the complainant in the taking her land by the defendant for their railroad. At the trial, in this court, the complainant claimed that her land so taken, was valuable for house lots. The defendant replied that the land was unlit for house lots, by reason of the water standing thereon during a portion of the year.

On exceptions. This was an action on a promissory note, of which the following is a copy: “$85.00. Monson, Aug. 8th, 1883. One year after date I promise to pay to the order of J. G-. Timberlake or bearer Eighty-five dollars at my house with interest, value received. I. D. Labeee.” The note was written by filling out a printed blank.

On report. The Law Court were to render such judgment as the law and the evidence warrant upon the testimony which was reported in full. The case which discloses purchases and sales of grain upon margins, is stated in the opinion. The defendant being plaintiff’s agent could not delegate his authority. Stoughton v. Baker, 4 Mass. 521. The trust was exclusively personal.

On REPORT. Bill in Equity in the nature of a supplementary bill or petition, heard on bill, answers, and depositions of defendants. The defendant sought to be relieved from giving bond, required in the original decree, for reasons given, and on the facts stated in the opinion.

<p>On exceptions and motion of the defendant to set aside the verdict, and for a new trial.</p> <p>This was an action of covenant broken. The defendant seasonably filed a plea of abatement to the jurisdiction of the court, alleging that neither he nor the plaintiff were inhabitants, or citizens of the state, and that no goods, effects, or credits of his, the defendant, were found or attached upon the writ in the action. To this plea the plaintiff demurred. The presiding justice adjudged the plea bad, and sustained the demurrer. To this the defendant excepted.</p> <p>The defendant requested the following instructions to the jury: — If from the evidence the jury find that the cottage was not completed and furnished on April 26, the date of the lease, and possession was never entered into by the defendant, or the cottage occupied by him, then the lease would be void as conveying something not in existence: — That the two letters (between plaintiff’s agent and the defendant, embodied in the opinion) amounted to a waiver of the lease. The presiding justice declined to give the requested instructions, and the defendant excepted.</p> <p>There was a verdict for the plaintiff.</p> <p>Defendant’s plea in abatement was good. The action should have been abated. The plaintiff, by his demurrer, admits the facts in defendant’s plea. Neither plaintiff nor defendant, then, were either inhabitants or residents of the state, and no goods, effects or credits of the defendant were attached upon the writ. What is left upon which to found jurisdiction ? The court is created by statute, and its jurisdiction is defined and limited by the legislature.</p> <p>“Personal and transitory actions, * * * shall be brought * * * * when no plaintiff lives in the state, in the county where any defendant lives; and when not so brought, they shall on motion or inspection by the court, be abated, and the defendant allowed double costs.” It. S., c. 81, § 9.</p> <p>Our courts were not established for the adjudication of questions of contract between foreigners.</p> <p>Says Shaw, C. J., in Putnam v. Pike, 13 Gray, 535: “If indeed the defendant had never been an inhabitant of this state, and there was no effectual attachment of the defendant’s property in • this suit, and the defendant had appeared specially, and pleaded in abatement to the jurisdiction of the court, we do not perceive why it would not have been a good defense to this suit.” This view is sustained by King v. Jeffrey, 77 Maine, 106; and Sanborn v. StieJcney, 69 Maine, 343.</p> <p>The two letters constituted, in law, a mutual waiver or recession of the contract declared upon, and the court should have so ruled.</p> <p>The construction and effect of written instruments is for the court and not for the jury. The letters were written by the parties to the contract to each other, with regard to the subject matter of the contract. No facts were in dispute. The letter of ■ Brown to Rice is a plain unequivocal notice on his part that he will not accept the cottage nor acknowledge any liability under the contract. All that was now needed was that Rice should assent to the proposed rescinding and' the contract would be, in law, ended. The plaintiff’s answer, written the same day, “Our acquaintance begins and ends the same day. I have the satisfaction of knowing that I can never by any possibility have such disagreeable tenants as you are,” constitutes a sufficient and perfect acceptance of the defendant’s proposed rescinding. Henceforth the contract was at an -end by mutual agreement. As a simple meeting of minds was only required to make the agreement, a simple meeting of minds had ended it. The defendant, upon receipt of plaintiff’s letter, leased another cottage and occupied it during the entire season. The key of the Rice cottage was never tendered him, nor was he notified in any way that the plaintiff still considered Mm Ms tenant. The cottage, “Saltair,” remained in the possession and occupancy of the plaintiff as before. The letters are as high authority as the lease; a seal upon the lease was not reqmred.</p> <p>What other construction can reasonably be put upon the letter of the plaintiff than that of an acceptance of the proposed surrender? A. party to a writing is presumed to have intended that it should have its ordinary and received signification. If it is doubtful, it must be construed most strongly against him who has used the doubtful language, and in favor of him who may have been misled thereby. “The language used by one party to a contract is to receive such a construction as he, at the time, supjjosed the other party would give to it, or such a construction as the other party was fairly justified in giving to it.” 11 Vermont, 490. And the understanding of the parties to a writing and their action upon it at the time is to be considered in interpreting it. And in that connection, the evidence of the acts of the parties at the time should have been considered, not by the jury, but by the court in determining what effect the letters had. The evidence of what was written, done and said upon the point of waiver is undisputed. The facts are unquestioned. Rice said to the defendant, “he did not propose to go to law about the matter in any event,” “he refused to recognize me when we met on the street, and in every respect treated me as an entire stranger.” 1 Greenl. §§ 277, 278 and notes; Clark v. Lillie, 39 Vt. 405. No question of fact as to wliat was done or said or written with regard to waiver or mutual rescission was in dispute. It was merely a question of interpretation, of the meaning and effect of a written instrument, and was for the court. Holbrook v. Burt, 22 Pick. 546, 555; Brew v. Towle, 80 N. H. 531; McGee v. Northumberland, 5 Watts, 33; Nash v. Brisco, 51 Maine, 417; 1 Greenl. § 49, note a. See Bula v. Cowles, 75 American Decisions, 463, where it is held that what acts amount to an abandonment of a contract are matters of law and should be decided by the court, not by the jury.</p> <p>In Hanhamv. Sherman, 114 Mass. 19, the sole question was whether there had been an accepted surrender of a lease, and the jury were told that any acts which would be equivalent to an agreement on the part of a tenant to abandon, and on the part of the landlord to resume possession would amount to a surrender by operation of law. In that case the dispute was as to the facts, as to what had taken place. In the present case there was no dispute as to facts, so far as waiver was concerned. The question was as to the effect of a writing. Of course much less would be required to show a surrender and acceptance of a term that had never been entered upon than where possession had been taken. In the ease under consideration, Mr. Brown had never occupied the premises.</p> <p>The contract was not a lease, but an agreement for a lease. The subject of the contract was a furnished house, and the building, “Saltair,” was not a house (not completed) nor furnished at the time the contract was signed. That which was the subject of the contract was to be afterwards created and not being in existence could not be leased. Jackson v. Delacroix, 2 Wend. 433. If it be said that it operated as a lease of the land or lot, then we say it was void in that respect from uncertainty. Plaintiff and defendant by their acts agreed in regarding the lease as executory.</p> <p>The verdict should be set aside because the plaintiff has declared upon a sealed instrument executed on the plaintiff’s part by an agent, but he has nowhere shown authority of equal dignity authorizing the agent to execute said contract. The instrument therefore lacked the element of mutuality and was not binding upon the defendant. Snell v. Mitchell, 65 Maine, 48; Rogers v. Saunders, 16 Maine, 92.</p> <p>On the question arising upon the plea in abatement the counsel cited: Peabody v.Hamilton, 106 Mass. 217, 220; 20 Johns. (N. Y.) 208; Lee v. Boston, 2 Gray, 484, 490; Oesna v. Myers, Rejjort of Committee on Elections, 42d Cong. U. S., McCrary on Elections, 2d ed., Appendix; Story’s Conflict of Laws, §§ 543, 544; Barrill v. Benjamin, 15 Mass. 354; Roberts v. Knights, 7 Allen, 449; Tweed v. Libbey, 37 Maine, 49, 51.</p> <p>It is expressly held in Peabody v. Hamilton and Barrill v. Benjamin, supra, that a non-resident has the same rights to sue in the courts of Massachusetts as a citizen of that state.</p> <p>On the question of waiver, they contended that, the letters were properly submitted to the jury. There were circumstances surrounding and conversations between the parties, concerning the subject matter. It was proper that the jury should have the evidence of these circumstances and conversations, and the letters placed before them, together with such instructions as the court thought proper, under the circumstances, to give. When the meaning of a contract depends upon facts aliunde, in connection with the written language, the question of construction is one of fact for the jury. Springfield Bank v. Dana, 79 N. Y. 108; Solomon Fitting v. Bank of United Stales, 11 Wheat. 59; School Dist. v. Lynch, 33 Conn. 330; Symmes v. Brown, 13 Ind. 318; Bed,ward v. Bonville, 57 Wis. 270; Taylor v. McNutt, 58 Tex. 71; Harper v. Kean, 11 Serg. & B. 280; TPaisoji v. Blaine, 12 lb. 131; Savage Manuf’g Co. v. Armstrong, 17 Maine, 34 ; Morrell v. Frith, 3 Mee & W. 402, 404; Donahue v. Fire _Zhs. (7o., 56 Yt. 374.</p> <p>On the lease, it was argued that if there are words of a present demise, without anything to indicate that the parties contemplate a further assurance, it is to be considered a lease, citing Taylor’s Land. & Tenant, 7th ed. § 41; Poole v. Bently, 12 East. 168.</p> <p>The seal imports a consideration, and there is abundant testimony of an actual consideration. The question of mutuality cannot arise in a court of law.</p>

On exceptions, by respondent to overruling bis demurrer, which is as follows : And the respondent comes and defends, &c., and says that the complainant ought not to have and maintain her said cause, because he says that the facts alleged in her said accusation and declaration and in the record of the proceedings thereon are not sufficient in law for her to-have and maintain the same : And he further says that the complainant ought not to have and maintain her said accusation…

On report. This was an action of trespass q. c., for cutting grass on land which the plaintiff claimed to own. The defendants pleaded the general issue. After the evidence was closed, the case was, by agreement, reported to the law court to render such judgment, upon the admissible testimony, as the law requires.

Repost, on facts agreed. This was an action of covenant broken. August 29, 1878, one William F. Hilton mortgaged land in Lewiston and Greene to tbe defendant. Held: that the covenants were limited to the estate and interest of A in the granted premises, and were not general covenants, extending to the whole parcel described in the deed. Sweet v. Brown, 12 Met. 175; Allen v. Holton, 20 Pick. 458.

On report, on bill in equity to annul a policy of life insurance issued April 30, 1887, upon tbe life of Alice J. Parks whose beneficiary was the defendant, and to whom it was made payable. She died July 21, 1887. Issues of fact were framed by the court and tried to a jury, who rendered a verdict for the defendant. The issues of fact were, first, was Alice J. Parks on April 30, 1887, of good health; second, had she usually been of good health prior to that date. Answer, yes.

On report. Indictment against defendant corporation for causing the death of one Lawrence J. Garcelon August 20, 1886. The defendant pleaded not guilty. After the evidence for the state was out, and the state rested, the court ordered a nonsuit, upon motion of defendants’ counsel, •with the stipulation that if the law court were of the opinion that the evidence was sufficient to warrant a verdict for the state, the ease should be sent back for trial.

On report. Bill in equity by tbe International Express Co., ■which sought to require the defendant corporation to transport over its road the complainants’ freight. The bill was filed May 25, 1885, and an interlocutory injunction granted, to continue during the pendency of the suit, a sum being agreed upon by the parties, for the service rendered. Answer and replication were duly filed. The case came before the court for a final decree upon bill, answer and proof.

On report. Writ of entry to recover possession of certain premises in Belfast. Plea, general issue. It was admitted that both parties claim under the same grantor. The court were to determine the rights of the parties from the legally competent and admissible testimony. The facts appear in the opinion. The attachment, seizure and sale gave the demandant title to the premises.

On bepobt. The full court were to render such judgment as the law and facts required. The opinion states the case and material facts. cited: R. S., e. 113, §§ 30, 42, 28; R. S., c. 1, rule 22; R. S., c. 107, § 2; Gall v. Pike, 66 Maine, 350; Hardy v. Sprowle, 32 Maine, 310; Norridgewoek v. Sawlelle, 72 Maine, 484; R. S., c. 113, § 28; R. S., c. 104, § 37; Walker v. Greene, 3 Maine, 215; R. S., c. 82, § 80; Asbury Ins.

On report. Real action to recover certain land on Big Green Island.' The court were to render such judgment as the law and facts require. The findings of fact by the court appear in the opinion. To the question of law counsel, in addition to the authorities in his former argument cited: Gillespie v. Rogers, 146 Mass. 610. The counsel relied upon the authorities cited by him in his formor argument, and contended tliat the question here is not one of identity.

On exceptions, to the ruling of the superior court, Cumberland county. Indictments for keeping liquor nuisances. The respondents filed special demurrers, alleging, among other causes, that they did not allege the places were used by them, for the unlawful purpose named, or that they were so used with their knowledge and consent. Upon joinder in the demurrers by the state, they were overruled by the court and respondents excepted.

On report, upon agreed statement. Writ of entry to recover two undivided third parts of the Atwood block in Winterport. It was admitted that Nathaniel Atwood died in December, 1858, seized of the demanded premises, and that the plaintiffs and defendant are his legal heirs, entitled equally to Iris undevised real estate, if any. Defendant claims under the will of Lydia Atwood, widow of Nathaniel, also under his will.

On exceptions. Writ of entry to determine tbe location of the dividing line between the parties. The verdict was for plaintiff. The defendant excepted to testimony offered by plaintiff in rebuttal, and admitted as tending to contradict and impeach a witness of the defendant. The grounds of the exception appear in the opinion of the court. There were other exceptions upon which the court commented.

On exceptions. This was au action of assumpsit to recover money paid on lien judgments rendered in favor of laborers, against defendant and plaintiff’s wood, and on which judgments the wood had been taken and sold. Plea, general issue. After the evidence was closed, the case was submitted to the jury, on the charge of the presiding judge. The jury were unable to agree, and before separating the judge directed them to return a verdict for the plaintiff.

On exceptions, by defendant to overruling his demurrer to plaintiff’s declaration. This was an action of assumpsit, in which the plaintiff declared on an agreement entered into by him and the defendant, to refer their differences as to the true boundary line between adjoining lands and mutual claims of trespass thereon, to certain arbitrators.

Osr report. The court were to render such decision as the law and facts require, on the pleadings and evidence. The action was upon account annexed for the plaintiff’s personal services, in cutting and hauling poplar logs and birch lumber during the winter of 1886-7, and claiming a lien thereon. The last delivery of the logs and lumber was alleged to have been made at the place of manufacture February 24,1887.

<p>In equity. On appeal by defendants from a decree in favor of complainants after hearing on bill, answer and proof.</p> <p>This was a bill in equity in which the complainants, heirs of Orrin Gilpatrick, of Somerville, sought to recover from the defendants, administrator and heirs of Sarah Gilp atrick, wife of said Orrin, certain portions of his estate which it was charged said Sarah had received, upon a parol trust for them, under the will of her husband; and in violation of her trust agreement had failed in her life time, to convey to them by deed, will or otherwise.</p> <p>The principal averments in the bill are as follows :</p> <p>1. That your complainants are the sole heirs at law of one Orrin Gilpatrick, late of Somerville, in the county of Lincoln; that said Orrin was in his life time possessed of certain real estate, to wit: A homestead and farm situated in said Somerville, of the value of five thousand three hundred dollars, ($5,300), and of certain personal property of the value of five thousand three hundred dollars ($5,300), and all of the value of ten thousand six hundred ($10,600), and on the first day of February, 1875, died testate; that said Orrin on the twenty-eighth day of January, 1875, executed and published his last will and testament, here in court to be produced, the first clause of which reads as follows: “I bequeath to my wife, Sarah Gilpatrick, my homestead and all the real estate I now own, and all my personal property;” that said will was duly probated in the county of Lincoln, on the sixth day of April, 1875,"and one Benjamin L. Tibbetts, appointed executor thereof; that said Sarah Gilpatrick died on the third day of August, 1883, intestate, leaving real estate to. the value of sixteen hundred dollars ($1,600), and personal property of the value of fourteen thousand eight hundred andtwentymne dollars and twenty-six cents, ($14,821.26), and all of . the value of sixteen thousand four hundred and twenty-one dol- ' lars and twenty-six cents, ($16,421.26), and that her sole heirs are Frank H. Plummer, Belle A. Dexter, Henry E. Plummer and Warren Plummer, four of the respondents herein named; that Daniel Glidden, another respondent herein named was duly appointed as administrator of her estate on the twenty-second day of October, 1883, and qualified as such, and Peter Dunton is the ' duly appointed and qualified guardian of said Frank H. Plummer.</p> <p>2. And your complainants further aver that immediately prior to the making of his said will, and to the conveyance hereinafter referred to, said Orrin expressed to said Sarah Gilpatrick, his desire and intention, to so dispose of all his property, both real and personal, that she might have the use and control of the same during her life; but that at her decease all that remained should absolutely and in fee simple pass to his legal heirs, your complainants, and not to her heirs. That said Sarah acquiesced in and agreed to said disposition, that there was then and ever after during his life, a perfect understanding and agreement between them that his intentions in this respect should be carried out, and said Sarah then and there promised the said Orrin that, if in his life time he would convey a certain part of said property to her, without an express limitation of the estate to the period of her life, and devise the rest of said property to her also without such express limitation, she would use the same dining her life only, and hold the remainder thereof in trust for your orators in fee simple, and that at her death the whole then remaining of the property thus devised from the said Orrin, should pass and be transferred absolutely to the heirs of the said Orrin, your complainants, and not to her heirs, and that she would make in her life time all provisions necessary to that end.</p> <p>That solely in consequence of said agreement on the part of said Sarah, and in full reliance thereon, the said Orrin was induced to and did then and there convey to said Sarah personal property of the value of fiv.e thousand dollars ($5,000), and was induced to and did on the twenty-eighth of January, 1875, make a devise of all the residue of his property, real and personal, of the value of fifty-six hundred ($5,600), to said Sarah, in terms absolute and unqualified, as hereinbefore set forth.</p> <p>And your complainants further aver that by virtue of said conveyance, the said Sarah received the value of five thousand dollars ($5,000) in personal property from the said Orrin in his life time, and under said absolute devise, she received from his estate personal property of the value of three hundred dollars ($300), and his homestead farm in said Somerville, from the sale of which in 1876, she realized the sum of five thousand three hundred dollars ($5,300), making in all the sum of ten thousand six hundred dollars ($10,600).</p> <p>That said Sarah had the absolute management and control and use of said property so conveyed and devised during her life time, and that at her death there remained in her hands of the estate of said Orrin Gilpatrick, said ten thousand six hundred dollars ($10,600), received by the said Sarah under the agreement above recited, and the same is included in the property of said Sarah’s estate aforesaid; but in direct violation of the agreement aforesaid, and in utter disregard thereof, and in fraud of the estate of said Orrin, and of your complainants as sole heirs thereof, said Sarah made no conveyance of said property by deed, will, or otherwise to your complainants, and made no disposition of the same in order that it might pass to them at her decease, but died without leaving any will or any disposition thereof whatever, and thereby in fraud of your complainants, and against their rights, attempted to pass the same at her decease to her own heirs, the said Henry E. Plummer and Warren Plummer, respondents herein named; and said Henry E. and Warren Plummer, as heirs aforesaid and said Glidden as administrator aforesaid, now hold the same subject to the condition and promise aforesaid in trust for the complainants.</p> <p>That your complainants on the eighth day of November, 1883, duly demanded in writing of said Glidden as administrator, the payment of said sum so held in trust and have made the same demand upon said respondent heirs, but all said respondents have ever refused to recognize said trust or the rights of your complainants in said property, and claim to hold the same in their own right, in fraud of your complainants, and against their equitable right.</p> <p>The defendants filed a general answer denying the allegations of the bill, and made special answer as follows:</p> <p>Said defendants further answering, say that the supposed expression of a desire and intention by said Orrin Gilpatrick to sd dispose of all his property that the said Sarah might have the use and control of the same during her life, but that at her decease all that remained should absolutely and in fee simple pass to his legal lieirs, to which it is alleged in the plaintiff’s bill the said Sarah acquiesced, if expressed at all, was not in writing, nor was there any declaration in writing signed by the said Orrin or the said Sarah relating to the same ; that the said several supposed agreements, promises, understandings and undertakings in complainants’ bill, as respectively alleged, were not any or either of them in writing, nor is there nor ever was there any memorandum or note thereof in writing signed by said Sarah Gilpatrick or any other person by her thereunto lawfully authorized; that the said supposed trusts alleged in complainant’s bill were not created or declared in writing signed by the said Orrin or the said Sarah, or either of them or their attorneys.</p> <p>The decree was for complainants, and defendants appealed under R. S., c. 77, § 20.</p> <p>The facts as found by the court appear in the opinion.</p> <p>argued several propositions of fact, and among them, the following :</p> <p>t. That Orrin Gilpatrick intended that this property should go to the Gilpatrick heirs as distinguished from his wife’s heirs.</p> <p>2. The ultimate restoration of the property to the Gilpatrick heirs was made an indispensable condition to his willing the property to his wife absolutely, and that he persistently refused to make this absolute will until and unless an unqualified promise was first made by her, that in the end what she had left of it, should go to his heirs.</p> <p>8. That after having long deliberated, she did finally before the will was made, solemnly promise her husband that if he would make the will absolute in terms, and in her favor, she would carry out all the conditions named, and that she did this in order to obtain for herself the advantage of the use and control of all of Orrin’s property while she lived.</p> <p>4. That all the other agreements, i. e. for the monument, the graveyard, the $500 legacy, and the Glidden reconveyance were admittedly not only made, but actually carried out by his wife precisely as agreed, and in defiance of the apparent and absolute terms of the will.</p> <p>These admitted facts show conclusively, that this apparent will was not his real will but only a nominal one; that the real disposition of his property was to be different from what the will provided; that we must look outside the will itself to discover and carry out the testator’s real testamentary purpose; that a solemn agreement by which she should bind herself faithfully to execute his real will was insisted on by him before he would put the property into her hands by a will in form absolute; that his wife understood fully this condition, held it long under consideration, and finally, solemnly agreed to it in order to prevent him from willing the property wholly away from her, &c., that she having admittedly agreed to all the minor conditions which were repugnant to his nominal will but indispensable to Ms real will, a fortiori would he insist on her agreeing to the most vital condition of all namely, that the property winch had come down through three generations of Gilpatricks, should in the end be turned over to the Gilpatrick heirs and none other.</p> <p>Still further, about the time she was executing the other conditions she called in Dr. Tibbetts and had him write and witness her sign what she called a “certification” certifying in terms, that when she was done with this property it was to go equally to his heirs.</p> <p>It is for the court to construe .the terms used by the parties, that Orrin’s property at Sarah’s death should “go to the Gilpatrick heirs.” Whether per stirpes, or per capita, is for the court to say.</p> <p>Counsel also argued that tMs was a trust having its origin in fraud, forced upon the conscience of the party by operation of law. 2 Story Eq. § 1195. To prove the fraud it needs only be shown, 1st, the real purpose of the testator; 2d, the communication of that purpose to the disponee ; 3d, the assent and agreement of the disponee, either by language or silence, to faithfully carry out that purpose, notwithstanding the terms of the will; 4th, action, or refraining from action on the part of the testator in consequence of such promise, and on the trust induced by it.</p> <p>Counsel cited the following cases:</p> <p>Dralceford v. Wilks, 3 Atkyns, 539; Reeeli v. Kennegal, 1 Yes. senior, 123; Barrows v. Grreenough, 3 Vesey, 153; Bussel v. Jackson, 10 Hare, 204, 211; Wallgrave v. Tebls, 2 Kay and Johnson, 313; Jones v. Badley, L. R. 3 Chan. Appeals, 362; Springett v. Jennings, L. R. 10 Eq. 488, 495; Tee v. Ferriss, 2 Kay and Johnson, 357; Podmore v. Cunning, 5 Simons, 485; 7 lb. 644; McCormick v. Crogan, L. R. 4, H. L., 82; Norris v. Frazer, L. R. 15 Eq. 318; 331; Bowbotham v. Dunnett, 8 Chan. Div. 480; Boyes v. Carritb, 26 lb. 531 ; Strickland v. Aldridge, 9 Vesey, 516; Owing’s Case, 1 Bland’s Chan. 370; Caither v. Caither, 3 Md. Chan. 160; TIoge v. Koge, 1 Watts, 163; Church v. Buland, 64 Penn. St. R. 422; Dowd v. Tucker, 41 Conn. 197; Barrett v.' Ilanrick, 42 Ala. 60, 73; Williams v. Vreeland, 32 N. J. Eq. 784; Class v. Kulbert, 102 Mass. 24, 39; O’Kara v. Dudley, 95 N. Y. 403; Browne Stat. Frauds, 103, § 95; Towles v. Burton, Richardson’s Eq. Cases, 146, So. Car. (24 Am. Deo. 414); Thynn v. Thynn, 1 Vern. 295.</p> <p>Plaintiffs admit a will, absolute in form, and seek to engraft a trust upon it, by parol testimony. They fail by their testimony to make out a case. The burden is on them to make out their case, by the most explicit testimony, as such evidence is not regarded with favor, and the court will not act upon it, if it be not strong and irrefragable, or if it be contradicted by other witnesses. Perry’s Trusts, 3d ed., Vol. 1, § 147.</p> <p>Bantry v. Bantry, 51 Ills. 458, 466, (2 Am. Rep. 314.)</p> <p>They must also show the party against whom the parol trust is established has prevented the grantor by fraudulent promises, * from adopting some other mode of accomplishing his purpose, and induced him to place it in the power of such person to convert the property to his own use.</p> <p>Bantry v. Bantry, supra.</p> <p>Sebra C. Kennedy’s testimony shows simply an understanding, a biased opinion and not an agreement. Mrs. Kennedy speaking of the alleged agreement says she did not hoar Sarah Gilpatrick make any answer, — nothing definite at the time. Doctor Tibbetts does not testify to any agreement; says he did not hear any. The certificate which he made twelve years ago for her to sign, and quotes verbatim, shows no such agreement as alleged by •plaintiffs. It reads “I, &c., do hereby certify that it is my wish that the property that was left me by Orrin Gilpatrick my husband should be equally divided between his heirs at my decease.” She treats the property as her own, she “certifies” that it is her own and not her husband’s wish that the property left, not to Orrin Gilpatrick’s heirs, or the Turner heirs, but to herself shall be divided, &c. The conversations which tins witness relates, show no agreement for the property to go, as “he wanted it— indicate no contract, unless the court supplies a deficiency in the testimony. Because one party wants a thing done is it evidence that the other party has agreed to do it? Is it evidence of inducement or fraud? They were not assertions of facts, but made merely “to bring somebody out.”</p> <p>The mistake of the witness about the date of the bill of sale is important in proving his total forgetfulness, or wilful perversion of facts. This kind of testimony is not sufficient basis for engrafting a trust upon a will. It is unsatisfactory testimony. Sndling v. Utterbadc, 1 Bibb. (Ky.) 609; Kimball v. Morton, 1 Halstead Ch. (N. J.) 26; Koge v. Koge, 1 Watts, 163.</p> <p>Plaintiffs’ case is deficient because, 1st, this species of evidence is regarded with disfavor; 2d, no witness pretends to have heard any agreement between the parties; 3d, no witness ever heard the husband state, in detail, what arrangements he and Ms wife had made, except Zubra Gilpatrick; 4th, no witness has attempted to show that he was in any way diverted from mailing his will just as he desired, by anytliing said or done by Ms wife; 5th, no testimony to any assent, on the wife’s part, to carry out any wish or agreement.</p> <p>Zubra Gilpatrick’s testimony is in opposition to the agreement set up by plaintiffs’ bill. Thomas Gilpatrick was to “have the homestead and carry it on as he liked.” This disposes of about one-half of the property and hence cannot be the trust set up;— by that the whole was to go to the heirs. Notice the language : “he would like to have Thomas have the farm, &c.”</p> <p>No arrangement had been made with Thomas but he would like to have him come if he desired to. It is more probable he would leave the remainder to the widow of his only son, to whom he said “yes, you are to have the remainder” than to the Turner heirs. If the court 'are to draw an inference from the indefinite and uncertain testimony would it not be that she was to have all the personal property?</p> <p>No trust can be charged upon real estate by parol. R. S., c. 73, §11.</p> <p>Glass v. Hnlbert, 102 Mass. 24; Flint v. Sheldon, Id Mass. 443, 448.</p> <p>The real question in this case is whether a will executed, with all the formalities of law, explicit and clear in its terms, shall stand as the expression of the last will of the testator, as to the disposition of his property, or whether, when he can no longer speak, it shall be subject to attack and overthrow by misunderstanding, perjury and fraud. Otherwise, the familiar principle that the testator’s intention is to be gathered from the whole instrument, it will be necessary for him to exclude in writing from bis will, every intention which might be proved, outside the will itself, by parol testimony, in order to avoid some kind of a trust which perjury and fraud may conjure up.</p> <p>Mr. Farr, in behalf of the respondents argued that evidence of intentions, expressed so long a time before making his will, is inadmissible. Gerry v. Stimson, 60 Maine, 186, 188.</p> <p>The intentions testified to, are not those alleged in the bill. They are not intentions expressed to the wife by the husband, or by those to whom he expressed them. Proof of the allegations in the first charge of plaintiffs’ bill not proved,' — much loss “with proof of the strongest character.” Wliart. Ev. § 1037. Best’s Ev. Intr. § 24.</p> <p>The evidence to maintain the allegations, in the second charge, arises only from loose, and unreliable testimony. Evidence of an understanding is not proof of a promise. It must be clear, strong, unequivocal, unmistakable. 2 Pom. Eq. § 1040; 2 Devlin’s Deeds, § 1185.</p> <p>All the things which the husband wanted the wife to do, she did except one, and that she attempted to do. But that one thing she was not expected to do alone. There was another whose acts and conduct were to correspond to her reasonable expectations. Thomas Gilpatrick was to have the home place on condition of taking care of thing’s, and living there with her, and making her home comfortable. For this reason it was not put in the will. He failed to perform the condition. This agreement and understanding which the widow attempted to carry out is inconsistent with that alleged in the bill.</p> <p>There is no evidence what remainder, — whether of his own property or Ms wife’s — the testator meant.</p> <p>If his final intentions were put into his will, that ends this case depending on an alleged contract, de hors the will. There is no evidence that the husband, just prior to making his will, intended to devise Ms property to his heirs to the exclusion of Ms wife. If he made no will, one half of his personal estate would have gone to Ms wife by law. The other half has been expended as he directed. What she would have received, without or in spite of a will, or what was transferred prior to the will, does not enter into the supposed understanding, and cannot be used as the foundation of an equity suit.</p> <p>The only ground upon which the trust set up can be rested, is actual intentional fraud. 1 Pom. Eq. § 1054. The mere breach of promise to convey is not enough; there must be some actual fraud in procuring a deed or devise to one’s self. 1 Perry’s Trusts, § 181- '</p> <p>The trust alleged in the bill is not a trust arising or resulting from implication of law under the statutes. Pom. Eq. supra, §§ 1030,1031; Perry’s Trusts, § 124; Laniry v. Lantry, 51 Ills. 458.</p> <p>The court will not abrogate an explicit and time honored statute. R. S., c. 73, §11; OUiffe v. Wells, 130 Mass. 221; Moore v. Stinson, 144 Mass. 594; Farnham v. Clements, 51 Maine, 426; Gerry v. Stimson, 60 Maine, 186, 188; Stevens v. Stevens, 70 Maine, 92; McLellan v. MeLellan, 65 Maine, 500; Norris v. Laberee, 58 Maine, 260; Balcer v. Fining, 30 Maine, 121, 126; Philbrooh v. Delano, 29 Maine, 410.</p> <p>As to the law: Most of the English cases are against the Mortmain Act, or relate to personal property.</p> <p>In Barrow v. Greenough, there was a writing. The decision reads, “I am very happy that I have under the defendant’s hand writing tbe particulars of the conversation, so that there can be no doubt about it, for this evidence shows how dangerous it is to determine on parol evidence only. If it rested on that alone the testator’s intentions could not have been effectual; * * * if it had not been for this written paper, I should have hesitated very much about admitting evidence against a written will.”</p> <p>Under the Mortmain Act in England, and a similar statute in New York, where parties attempt to establish trusts against the law, courts admit evidence to defeat the attempt. In this case the parties are alleged to have established a trust, and the court is asked to admit parol evidence to render it valid in spite of the law.</p> <p>Our statutes concerning trusts have not been construed to allow a trust to be established on a parol promise, at least in America, with perhaps one exception. Flint v. Sheldon, 13 Mass. 443, 448.; and Goodwin v. Hubbard, 15 Mass. 210, are against it.. Olliffe v. Wells, supra, and the cases there cited in tone are against it. Connecticut and Ohio have no such statute. When Hoge v. Hoge, 1 Watts, 163, was decided, Pennsylvania had no statute of frauds, nor statute concerning trusts. Brooks v.. Chappell, 34 Wis. 405, relates to legacies, and did not affect title to lands. In Barrell v. Hanrick, 42 Ala. 60, the court find as an inference that the devisee suggested and advised the devise. Pembroke v. ALl&nstown, 21 N. H. 107 ; Graves v. Graves, 29 Ind.. 142; Farrington v. Barr, 36 lb. 86; Moore v. Moore, 38 Ind. 387,. are against establishing such a trust against the statute.</p> <p>Parol evidence is admissible to establish a fact from which the law will raise or imply a trust, but it cannot be received to prove any declaration of a trust, or any agreement of the parties for a trust, without violating the statute.</p> <p>There should be no dispute as to the evidence of the facts which the the court will find. That should be such, that different courts equally honorable could not come to different conclusions.. Not a preponderance of evidence; but evidence clear, certain, explicit, undisputed. Otherwise, it would not be merely a curtailing of the statute, but ignoring the policy and purpose for which the statute was passed.</p>

On motion. This was an action of trover brought by the plaintiff, as administrator of David F. Brown, of Mexico, to recover the value of personal property, rights and. credits, of plaintiff’s intestate which it was alleged had been converted by the defendant.

On eepoet, from tbe superior court for Kennebec county. The court were to draw such inferences as a jury might from the legally admissible testimony, and render such judgment as the law and evidence require. This was an action of assumpsit upon defendant’s promissory notes due to plaintiff bank.

On report. Bill in equity to obtain the construction of the will of Magloire Phaneuf, late of Lewiston, deceased, and came before the court for hearing on bill, answers and proof. The questions presented for decision relate to the proper disposition of money derived from life insurance, and a bequest to the widow for her support and that of her daughter, the former having waived the provisions of the will in her favor.

On exceptions. Tliis was a petition by the administrator for leave to enter an appeal, under II. S., e. 63, § 25, from a decree of the probate court, for Cumberland county, ordering a distribution among the heirs of Silas Bates. The heirs moved to dismiss the petition because of its insufficiency in law and other reasons which appear in the opinion of the court. The motion to dismiss was sustained by the court, and the petitioner excepted.

<p>On report. This was a bill in equity to enforce specific performance of a contract to partially assign a chattel mortgage. After the evidence was closed, the case was reported for the decision of this court.</p> <p>In his bill the plaintiff alleges that one Kincaid mortgaged his stock of goods to the defendant September 9, 1886, to secure the payment of his three promissory notes, given to the defendant, that day, — the first for $100, due iu two months, the second for $200, due in four months, and the third for $200, due in six months. When the first note became due, Kincaid was unable to pay it; on or about December 1, 1886, the plaintiff contracted through his attorney, one Lancaster, to pay the face value of the note to the defendant, and for a reasonable time not to foreclose the mortgage, to the prejudice of his interest in the property, upon the promise of the defendant to deliver the overdue note to the plaintiff, and to assign to him the mortgage to a sufficient extent to juotect the plaintiff from loss upon the note.</p> <p>The facts appear in the opinion. 'The property embraced in the mortgage was sold by the defendant after the filing of the bill.</p> <p>The evidence introduced by the plaintiff proves the authority of Lancaster to make the contract, as alleged in the bill. By defendant’s own theory and admissions, if Lancaster had no authority, then the plaintiff paid his money under a mistake of the terms of the contract and of which the defendant was informed, and an offer was made to restore things in statu quo. Such being the case the defendant cannot, in morals or law, hold it as his own. Kent’s Com., vol. 2, 491; Benj. Sales, 50; Wait’s Actions and Defences, vol. 4, 495. He is estopped to deny Lancaster’s authority as his agent having decided to hold the proceeds of the contract; it was a ratification. Pars. Con., vol. 1, p. 49; Addison on Con., vol. 1, § 60 ; Usher on Sales, § 73; Wait’s Actions and Defences, vol. 1, 233; Mundorf v. Wiclcershorn, 63 Penn. 87; Despatch Line of Packets v. Manufacturing Co., 12 N. H. 205; 37 Am. Decisions, 203; Medomak Bank v. Curtis, 24 Maine, 36; Bryant v. Moore, 26 lb. 84. The sale of the property by the mortgagee before foreclosure was a conversion as to the mortgagor and the plaintiff an equitable owner.</p> <p>The defendant should therefore be held to answer in damages. Pom. Eq., § 1410, and cases there cited.</p> <p>besides a general answer, filed an answer by way of demurrer and argued that the bill was defective because, 1st, no definite time is alleged when the mortgage and notes spoken of in the bill were given; 2d, the bill does not allege that the note which the plaintiff claims to have, was one of the notes secured by the mortgage; 3d, he does not allege any time or place where or when the pretended agreement, on which he bases his action, was made. Stephen’s Plead. 292: 1 Chitty’s Plead. 257 ; Grilmore v. Mathews, 67 Maine, 517; jPlatt v. Jones, 59 lb. 232.</p> <p>The plaintiff has failed to prove his right to an assignment by virtue of a contract. He cannot be considered an equitable assignee of the mortgage. A stranger who pays off a mortgage, in whole or in part, as a voluntary act to which he is not forced to protect his own rights cannot be subrogated to the rights of the principal or assignor. Pom. Eq., vol. 3, § 1212, et seq; Herman’s Mort. 424; Moody v. Moody, 68 Maine, 155.</p>

On motion and exceptions. This was an action to recover damages for personal injuries to the plaintiff by reason of a defect in a highway in the town of Gfouldsboro, on the first day of June, 1886. The verdict was for plaintiff.

On report, from tbe superior court for Kennebec county. Tbe law court, were to render such decision as tbe law and admissible testimony require. This was an action against tbe administrator of tbe estate of William Rollins, deceased, under tbe provisions of R. S., c. 66, §§ 18 and 14, on an appeal, by tbe plaintiffs, from tbe report of commissioners on said estate represented insolvent.

<p>Report on facts agreed. The case was' to stand for further hearing, if on the evidence the court should hold the petitioner was such a party in interest, as is entitled to maintain the petition; otherwise the petition was to be dismissed.</p> <p>The real estate and the larger part of the personal property went to the petitioner as residuary legatee, under the will of her husband.</p> <p>Practically, she is in the position of a party, whose rights and property have been passed upon and determined in court, without any hearing in fact, and without notice or opportunity to be heard.</p> <p>The title to the real estate vested in her at the testator’s death. Wright v. Williamson, 67 Maine, 524; Kimball v. Summer, 62 Id. 305; Beald v. Beald, 5 Id. 387.</p> <p>The administrator held the personal property in trust for her, and the right of property was in her. Its disposition pecuniarily affected her alone. She was the only party interested. The administrator was only a representative party. Her rights and property were affected and determined by the judgment sought to be reviewed, and not his. Redf. Wills, 3d ed. 130, 131; Dalton v. Dalton, 51 Maine, 170; Shirley v. Bealds, 34 N. H. 407; Lawrence v. Wright, 23 Pick. 128; Wiggin v. Swett, 6 Met. 197; Fuller v. Storer, 111 Mass. 281.</p> <p>It is not necessary, that her ownership or interest be absolute and exclusive, to be entitled to this remedial relief. Nowell v. Sanborn, 44 Maine, 80.</p> <p>The objections in Flwell v. Sylvester, 27 Maine, 536, do not apply here. The court there say, “the writ of review must be sued out by a party to the former suit, or by one representing the interest of a party.” Nor does Taylor v. Small, 69 Maine, 148, apply to the case at bar. There, the petitioner was not a party to the judgment, nor did he represent any interest of such party.</p> <p>The language of the statute is general. A party in interest is any party having a pecuniary interest, and comes within its provisions. Douglass v. Cardiner, 63 Maine, 462.</p> <p>Granting reviews is within the discretionary power of the court. Sherman v. Ward, 73 Maine, 29; Berry v. Titus, 76 I b. 285.</p> <p>Counsel also cited Gtooding v. Baker, 60 Maine, 52.</p> <p>To the rights and powers of executors and administrators, counsel cited: Sclioul. Exc. and Admr., §§ 269,276, 277, 288; MeLetm v. Weeks, 63 Maine, 418; Lawrence v. Wright, 23 Pick. 129; Dalton v. Dalton, 51 Maine, 172; Hutchins v. State Bank, 12 Met. 425; Carter v. Bank, 71 Maine, 450; Carlisle v. Burley, 3 Id. 250; Birder. Keller, 77 Id. 270, 275; dime v. Bradley, 51 Id. 538; Lee v. Chase, 58 Id. 435; Snow v. Snow, 49 Id. 165; Pulsifer v. Waterman, 73 Id. 233; Reedv. Reed, 75 Id. 264; Frost v. Libby, 79 Id. 60.</p> <p>The statute (R. S., c. 89, § 1, par. 3) invoked by petitioner-reads: “on petition of a party in interest, who was not a party to the record.” This means the same as the original enactment in 1859, c. 94, § 3. The petitioner therefore cannot prevail because she did not prosecute the action here sought to be reviewed.</p>

<p> Mortgage. Possession. Evidence. Bond for support. </p> <p>Where an obligor gives a bond to the obligee to support him in the obligor’s house, not naming what house or where situated, and secures the performance of the bond by a mortgage In the usual form upon the obligor’s homestead, there is not a legal implication that the mortgagor shall retain possession of the mortgaged premises; nor is it admissible to show that there was a contemporaneous, verbal understanding, that the support should be received in the house on the mortgaged premises.</p>

On report. The law court were to pass such decree, upon the legally admissible evidence, as the judge of probate ought to have passed, remit the case to the probate court for further proceedings, or take any order therein that law and justice required.

On exceptions and motion of the defendant to set aside the verdict, and for a new trial. The action was for money had and received by the defendant by her collection of the amounts due on three savings bank books after her husband’s death. The plaintiff sues as administrator on tlie estate of Daniel Hagerty, the defendant’s husband. Yerdi ct was for plaintiff for $2,420.68.

<p>On motion and exceptions, by defendant.</p> <p>This was an action on policy of fire insurance. Verdict for plaintiff for $999.87. Tbe plaintiff contended, among other things, that bis delay to make proof of his loss bad been waived by tbe defendant, and offered in evidence a letter dated January 26, 1887, purporting to have been written by one D. C. Robinson to one S. W. Jackson, attorney for plaintiff. Said Robinson appeared as attorney of record of defendant at October term 1887 of said court. Tbe letter was admitted by tbe presiding justice, against defendant’s objection. In tliis connection, the presiding justice instructed tbe jury, among other tilings, as follows :</p> <p>“I say 'then further, if that letter was written by Mr. Robinson Jor and in behalf of tbe company, and was by authority of the company, because wbat I am speaking of now must come from the company itself, and if from the other testimony, you are satisfied that there were negotiations going on between these parties from the time, or very near the time, within thirty days of the time of the loss, continued up to that time, that would be a waiver of notice entirely.</p> <p>Then the question is, whether you are satisfied from the evidence in the case, that the company were by themselves or through their authorized agents making an investigation into this matter in consequence of the first notice of the loss and acting upon that notice, making no objection to the plaintiff on account of the absence of the other notice or on account of any defects which might exist in it.” * * *.</p> <p>“The courts have decided in all these cases, that both plaintiff and defendant, both the assured and the insurer shall act in good faith, and although this notice is required to be given without any asking or demand on the part of the defendant company, it has been held to be a want of good faith in them while going on in negotiation and investigation of matters in order to ascertain their rights, to object that the notice has not been fully complied with, without informing the plaintiff of such defects or want of notice.</p> <p>This case must turn under this instruction, so far as this want of notice is concerned, not upon the delay, because I tell you that is too long, but upon the question whether the company themselves have taken such a course, as would amount to a waiver, as I have endeavored to explain it to you.”</p> <p>The defendant requested the presiding justice to instruct the jury that the provision in the policy, that no waiver should be made, except in writing, signed by the president or secretary, was operative and binding upon the parties, — which requested instruction was refused. The provision in the policy, referred to, reads as follows:</p> <p>“No act or omission of the company or any act of its officers or agents shall be deemed construed or held to be a waiver of a full and strict compliance with the foregoing provisions of the terms and conditions of this policy, nor an extension of time to the assured for compliance, except it be a waiver or extension in express terms and in writing, signed by the president or secretary of the company.”</p> <p>By R. S., c. 49, § 21, all provisions contained in any policy of insurance, in conflict with any of the provisions thereof are null and void, and all contracts of insurance made, renewed or extended in tins state, or on property within the state are subjected to the provisions thereof.</p> <p>It would seem a just and legal inference that all provisions contained in a policy of insurance not in conflict with the statute are valid, and binding upon the parties to the contract. Emery v. Piseataqua E. M. Ins. Co., 52 Maine, 322, 326.</p> <p>In Campbell v. Monmouth Mut. Eire Ins. Co., 59 Maine, 430,434, and in Eolbier v. Agricultural Ins. Co., 67 Maine, 180, 184, where the question of notice is discussed, the court declares that the plaintiff must show either such notice, as has been stipulated in the contract of insurance, or such notice as the statute prescribes.</p> <p>Presumably, the same rule would apply to the proof of loss or the waiver of such proof.</p> <p>The policy of insurance in this case contains this provision: “No act or omission of the company or any of its officers or agents shall be deemed, construed or held to be a waiver of a full and strict compliance with the foregoing provisions of the terms and conditions of this policy, nor an extension of time to the assured for compliance, except it be a waiver or extension in express terms and in writing signed by* the president or secretary of the ^company.”</p> <p>By R. S., c. 49, § 19, “the agent whose name is borne on the policy is its (the'company’s) agent in all matters of insurance, &c.”</p> <p>The only conflict between this provision of the policy and the provisions of the statute is, that by the statute, the agent whose name is borne on the policy may waive notice or proof, notwithstanding the terms of the contract.</p> <p>A waiver to be operative must take place before the expiration of the time for supplying tbe proof, either under the policy within thirty days or under the statute within a reasonable time. 2 Wood on Fire Insurance, 971; Smith v. State Ins. Co., (Iowa) 21 N. W. B., 145 ; Beatty v. Lycoming Ins. Co., 66 Penn. St. 9.</p> <p>When no attempt has been made to comply with the conditions of the policy or the requirements of the statute in furnishing proof of loss, the failure of the company to object, there being nothing to which it can object, or its silence under the circumstances, cannot be regarded as a waiver. Connell v. Milwaukee Ins. Co., 18 Wis. 387; Franklin Ins. Co. v. Chicago Ice Co., 36 Md. 102.</p> <p>Ladd, the insurance company’s agent testifies, that he prepared the application at Day’s request; he was for the time, acting for Day, and the company is not thereby bound by the statements of value. Mutual Fire Ins. Co. v. Beale, 18 Md. 26, 29, (79 Am. Dec. 673,) 2 Wood on Fire Insurance, § 412.</p>

<p>On motion, by defendant to set aside tibe verdict. The facts appear in the opinion.</p>

On exceptions and motion. Indictment for conspiracy. The exceptions were for overruling a motion in arrest of judgment. The defendant moved, after verdict, that judgment be arrested, because the indictment was insufficient in law, and did not show that the defendant knew or had reasonable cause for believing that J. Wesley Dunham was innocent of the crime of attempting to administer poison.

On exceptions. The inhabitants of Chosterville, (appellees) excepted to the rulings of the court, in accepting the report of the committee, appointed to hear the appeal from the county commissioners upon their decision to discontinue the way. The principal question related to the legal authority of the committee to act on the appeal from the discontinuance of the way, as adjudicated by the commissioners, during the pendency, in the law court, of the former case.

On motion, by defendants to set aside the verdict as against law and evidence. Action on the case to recover damages for injuries received by Daniel O. S. Hooper, plaintiff’s intestate, through the negligence of the defendants in the running their train.

In equity. Bill in equity, brought by the administrator, with the will annexed, of David Crooker, late of Bath, deceased, to obtain the construction of the will, by the court, upon the question as to who were entitled, as lawful claimants, to share im the estate, under the residuary clause of the will. The case was submitted, by agreement, upon the facts stated in the bill. The facts are stated in the opinion.

<p> Indictment. Time. Continuando. Impossible date. </p> <p>An indictment must allege a particular day on which the offense was committed, oven if it be set out with a continuando.</p> <p>Where an indictment, found on the first Tuesday of May, 1888, was rendered defective by charging the offense to have been committed, with a continuando, on a date practically impossible (May 15, 1807) the entering a nol pros to acts prior to May 15, 1887, will not cure the defect.</p>

On exceptions, by defendant, to tbe ruling of the court in overruling his demurrer to plaintiff’s declaration. This was an action of trover, and defendant demurred to the declaration because the articles, with their value, were not set out in the body of the declaration, — but were described in a schedule annexed to the writ.

Facts agreed. The case was submitted to the full court, upon a statement of the facts, to determine the law as to the effect of the marriage of the testatrix, Esther Hunt, formerly Esther Doughty, upon the validity of her will executed before marriage.

On report. Bill in equity for the cancellation of a deed, heard on bill, answer and proof. The facts are sufficiently stated in the opinion. Plaintiff was interested in the land. The mortgage, previously given by him, had not been foreclosed. J ones Mort., § 1152, mortgagee had not entered and held possession. Wild lands not capable of adverse possession. Chandler v. Wilson, 77 Maine, 76; Hudson v. Coe, 79 Maine, 83. Constructive possession not recognized.

On exceptions, to the superior court for Kennebec county. The plaintiff excepted to the pro forma rulings of the presiding justice, of that court, in admitting evidence to show certain payments had been made, upon a promissory note, there in suit; and the amount which was due thereon plaintiff claimed had become res adjudícala, under the facts which are stated in the opinion. Judgment as an estoppel: Freem. Jud., §§ 247, 249; Aurora ■City v. West, 7 Wall. 82.

On exceptions. From the bill of exceptions, it appears that the actions were begun by writs of attachment, and that the plaintiff was not an inhabitant of the state. On the second day of the term, the defendant filed a plea in abatement, and a motion to dismiss the actions for want of an indorser. Plaintiff’s counsel, during motion hour, on the same day, moved for leave to furnish an indorser.

<p>Tax. Broker. Shop. Store. B. S., e. 6, § 14, par. 1.</p> <p>Tlie plaintiff, an inhabitant of another town April 1, 1885, was taxed for personal property by the defendant town, where he was a cotton broker, engaged in buying and selling cotton. He occupied a desk, and desk room there which he rented. He kept his account books and papers in the desk; received and answered his correspondence there; received samples of cotton, but made no sales there; kept no goods there other than the samples sent him by mail, which he never exhibited there for sale. He made his sales by taking Ms samples and exhibiting them to the purchasers at their places of business outside of the defendant town. A part of the payments was made by notes through the mail to his place of business, and a part was made at the places of sale. He had a large quantity of cotton stored in three warehouses in the defendant town, paying storage thereon, from which houses cotton was shipped after sale; but he had no direction or control over the warehouses. He was not an agent for any one in making the sales.</p> <p>Held, upon these facts, that the plaintiff did not occupy a store or shop within the meaning of R S., c. 6, § 14, par. 1, and was therefore not liable to the tax.</p>

On exceptions. Replevin of a buggy wagon. The material question was whether the mortgage under which plaintiff claimed was duly recorded. The presiding justice ruled that the recording was not sufficient, and the plaintiff excepted. The facts are stated in the opinion. Mortgage shall be considered as recorded when received. R. S., c. 91, § 2. After delivery and entry, the effect is the same as if actually spread upon the record.

On rei’OBT. Action on a bond, given by defendants, to procure an injunction in equity, the injunction having been denied after a general hearing on the bill. After this suit was begun, all other damages, except counsel fees, were adjusted, and the case was reported to the law court for the determination of two questions: First, whether the action was maintainable; and, second, if so, whether counsel fees were recoverable as part of the damages.

On report. Bill in equity, heard on bill and demurrer, The facts are stated in opinion. Plaintiff cannot recover by an action at law. Payment of taxes inured to benefit of all the owners. An owner, who pays the amount required to redeem his own share and the share of a co-tenant, cannot be entitled to recover of that co-tenant the amount equitably chargeable to his share without other proof, for he may not have paid by his consent or at his request.

<p>Alabama Claims. War Premiums. Assignee in Bankruptcy. Act of Congress, March 2, 1867; June 5, 1882.</p> <p>In April 1863, the plaintiff paid ■war premiums on certain vessels insured against capture or destruction by confederate cruisers. In May 1868, he was adjudicated a bankrupt, under the act of Congress of March 2,1867, and the defendant was appointed his assignee. Under the act of Congress of June 5, 1882, hy which the court of commissioners of Alabama Claims was re-established, he made application to that court lor reimbursement for the premiums so paid. Subsetpiently, by reason of a rule of that court, the defendant became a party to that proceeding, prosecuted it to final judgment and received the proceeds thereof. The only question presented is, whether the defendant holds that sum in trust for the plaintiff, or for his creditors in bankruptcy.</p> <p>Held, that creditors can hold only such property, &c., as passed by the assignment. At its date, this claim was not in existence, either as property, or the representative of property, the same as were claims for property destroyed. It never became such until the act of June 5, 1882, and therefore did not pass by the assignment to the assignee.</p>

On exceptions. This was auaction for negligence to maintain in good repair a stairway, connected with certain rooms, which the defendant rented to the plaintiff in his building. The ingress to the rooms was by a stairway running through the building. The same stairs were erected and designed for all the rooms in the building,, some of which were leased by the plaintiff, others to other tenants.

On report. The action, which was assumpsit, on account annexed, was to stand for trial, if in the opinion of the law court it could be maintained. Agreement contains two elements; a waiver of the statute of limitations, and a new promise. Defendant perpetually estopped from setting up the statute. The agreement is a perpetual bar to its operation. Warren v. Walker, 28 Maine, 458, and cases there cited, approved in Modgdon v. Chase, 29 Maine, 47, 50.

On report. Bill in equity, to redeem a mortgage, heard on bill and supplemental bill, answers, and proofs. The bill, as originally framed, was to redeem a statute mortgage of certain lands in Aroostook county, given by Nathaniel Blake to G. K. Jewett, August 31, 1861.

Os report. Bill in equity, beard on bill, answer and proofs. The bill was brought to reform a deed of real estate, given by the plaintiff to the defendant, October 14, 1884; the plaintiff claiming that a certain quarry, and three small lots of land were included in the description’in the deed tinder a mutual mistake, and that they should have been excepted therefrom. The facts are fully stated in the opinion.

On report. The law court were to render its decision upon so much of the evidence as was legally admissible. The action was assumpsit, brought to recover the amount due upon two • town orders dated March 22, and April 5, 1882; one being given for the renewal of a former order, and the other for money hired to pay town debts. The writ contained two special counts, one upon each of the orders, and the common money counts joined.

On exceptions. This was a search and seizure process, begun in the municipal court of Portland, and tried, on appeal, to a jury in the superior court. The jury found the defendant guilty, and he excepted to the rulings and refusals of the presiding justice to instruct the jury.

On exceptions. This was a complaint in bastardy. The verdict was for the defendant. From the bill of exceptions it appeared, that the presiding justice allowed the defendant, against the objection of the plaintiff, to give the contents of a certain letter, by secondary evidence, when no notice had been given before the trial began, to produce the same.

On exceptions. Trover to recover for eighteen cords of wood cut by plaintiff under the following circumstances : The plaintiff mortgaged the farm on which the wood was cut, March 10, 1886. There was no stipulation in the mortgage that the mortgagor might remain in possession, until condition broken. The wood was cut in the winter of 1886-7.

On exceptions, by defendant to the superior court, for Cumberland county. The facts are stated in the opinion. 'Counsel cited: Miller v. Croddard, 34 Maine, 102 ; Myers v. Meinrath, 101 Mass. 366, 377; Robeson v. French, 12 Met. 24, 25 ; Towle v. Larrabee, 26 Maine, 464, 469; Flaisted v. Palmer, 63 Id. 576. Pars. Con., vol. 2, note on p. 761; Watts v. Van Ness, 1 Hill, 76; Smith v. Wilcox, 19 Barb. 581.

<p>On report. This was a bill in equity, in which the plaintiff sought to recover of the other co-owners of a reservoir mill dam, their respective shares for repairs and improvements.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>In Webb v. Laird, 59 Yt. 108, where one co-owner repaired a mill dam the court say: “Each having an interest in the water</p> <p>power, and the right to maintain it if the other abandons it, it follows that they have a mutual interest in, and are under a mutual duty to maintain it, so long as each continues to exercise .his right to it. While enjoying this mutual interest under the mutual duty, .equity will compel each to contribute towards its maintenance according to his relative right and interest.” Story’s Eq. § 1237; Wash. Real Prop., vol. 1, p. 665,- Ooffin v. Heath, 6 Met. 76, 80. Dam necessary for all the mill owners. Notification to Alden, ten years before this work was done. If Adams was not agent, plaintiff was led into mistaken belief, on which he worked for mutual benefit of all the owners, and equity will aid him. Story’s Eq., § 77. Answer of defendants to the Fernald bill in equity, competent evidence. Brown v. Jewett, 120 Mass. 217.</p> <p>Defendants are tenants in common, but not co-partners, in dam. Jordan v. Soule, 79 Maine, 590, 592. Plaintiff should have proceeded in manner provided by ,R. S., c. 57. Statute remedy exclusive, in absence of contract. Buck v. Spofford, 31 Maine, 34; Carver v. Miller, 4 Mass. 559, 561, 562.</p> <p>Notice, request and refusal are not sufficient. Carver v. Miller, supra. Plaintiff has proved no contract. Express promise of Adams, if any, does not bind his co-tenants. Lane v. Tyler, 49 Maine, 252.</p> <p>Having a legal remedy cannot maintain action in equity. Bird v. Hall, 73 Maine, 73; Dennison Co. v. Robinson Co., 74 Id. 116; Damage v. Harris, 79 Id. 531; Davis v. Weymouth, 80 Id. 307. This defense available, after hearing on answer. Dennison Co. v. Robinson Co., supra-, Story’s Eq., § 447.</p>

<p> Wharf owner. Rights and duties. Obstructions. Use by public. Care. </p> <p>While the owner of a public wharf is required to keep it safe for those having business there, his liabilities are not the same as in the case of highways.</p> <p>Highways are used for the purpose of travel only, and must be kept free from obstructions, as well as safe in other respects, and are definitely located. A public wharf is used for landing and taking away freight, as well as for travel; the way cannot be definitely located, but the whole wharf must be kept safe, subject to such obstructions, as are caused by the proper deposit of freight. The wharf, therefore, must be used for both purposes, with due regard to the requirements of each.</p> <p>The plaintiff’s horse and carriage were injured, when being driven upon the defendant’s wharf, by running upon a pile of gravel there deposited as freight, in a proper place, and as near the edge of the wharf as it could be done with safety. There was an abundance of room between the gravel pile, and the sidewalk opposite for teams to pass with safety and convenience. There was no complaint of any defect, except such as might arise from the supposed obstruction, caused by the gravel. Reid, that the gravel was rightfully there. • Reid, also, that the prevailing darkness, though not sufficient evidence of carelessness on the part of the plaintiff’s bailee in going there, did impose upon him additional care, in making the passage.</p>

<p>On report. Bill in equity, for specific performance, heard on bill, answer and proofs.</p> <p>The facts appear in the opinion.</p> <p>Contract by correspondence, completed. Bird v. Munroe, 66 Maine, 337, 345, 346; Alger v. Seoville, 1 Gray, 391; Allen v. Bennet, 3 Taunt. 169; 1 Benj. Sales, § 220, and notes. Immaterial, that letters were addressed to broker, instead of plaintiff. Bird v. Munroe, supra, and cases cited; 1, Benj. Sales, pp. 245, 246, and note ; Brown St. Frauds, § 346 ; Townsend v. Hargraves, 118 Mass. 325. Verbal acceptance of Wood, and his parol agency, sufficient. Doty v. Wilder, 15 111. 407; (60 Am. Dec. 576.) Johnson v. Bodge, 17 111. 433; McConnell v. Brillhart, Id. 354 (Am. Dec. 661); 1 Benj. Sales, p. 252, (note 36 by Corbin). Parol acceptance of written proposal, sufficient to bind signer. 1 Benj. Sales, § 254, and note. Williams v. Bobinson, 73 Maine, 186; Bird v. Munroe, supra, 346. Wood’s letter was an acceptance, as soon as mailed. 1 Benj. Sales, p. 64, § 44, and notes. Acceptance unconditional. “As he said one-half cash, would like to have you make it so if you can,” was the expression of a hope, or wish, and did not vary terms of contract. Phillips v. Moor, 71 Maine, 78, 79; 1 Benj. Sales, p. 55, and note.</p> <p>No mutual mistake. If one of quantity, on part of defendant, will not prevent specific performance. Bavis v. Parker, 14 Allen, 94.</p> <p>Before trade was consummated, defendant discovered 'mistake, and notified plaintiff. No contract made enforceable in equity, and no sufficient memorandum. Defendant intended to sell one building lot, and lot 12, on plan includes two. Mistake on one side, though not sufficient to reform may be for rescinding, or refusing specific performance. Young v. Mo Gown, 62 Maine, 56, 61; FahTberg v. Cosine, (5 N. E. Rep. 23) ; Lawrence v. Staigg, 8 R. I. 256; S. C. 10 Id. 581; Harris v. Pepperell, L. R. 5 Eq. 1; Garrad v. Frankel, 30 Beav. 445; Wright v. Goff, 22 Id. 207; Spurr v. Benedict, 99 Mass. 463, 465; Kyle v. Kavanagh, 103 Mass. 356, 359. Where there is mistake as to what was sold, equity will not interfere in favor of either party. 1 Sugden’s Vendors, 7th Am. Ed. 279. Mistake may be proved in defense, but not to reform. Sugden’s Vendors, 8th Am. Ed. 160, and cases cited.</p> <p>Court may refuse to reform or rescind, leaving parties to their legal remedies. Osgood v. Franklin, 2 Johns. Ch. 23; Mortlock v. Butter, 10 Ves. 292; Mason v. Armitage, 13 Id. 25; Hepburn v. Dunlop, 10 Wheat. 179, 198. Contract not enforceable, in eases of doubt. Clowes v. Higginson, 1 Ves. & B. 524, 583. No laches: Cook v. Clayworth, 18 Ves. 12; Ball v. Slorie, 1 Sim. & Stu. 210; Malins v. Freeman, 2 Ke. 25 ; CWes v. Bowne, 10 Paige Ch. 527; Pom. Sp. Per. § 252.</p> <p>Brokers exceeded their authority, hence no enforceable contract. Loudon Soe. v. Bank, 36 Pa. St. 498; Carmichael v. Buck, 10 Bich. (So. Car.) 332; Persley v. Morrison, 7 Ind. 856; Bossiter v. Bossiter, 8 Wend. 494; Beese v. Medloclc, 27 Tex. 120; Craig-head v. Peterson, 72 N. Y. 279; Martin v. Farnsworth, 59 Id. 555.</p> <p>Dealer must inquire, where principal has not held his agent out as having general authority. Beitz v. Martin, 12 Ind. 308. No mutually enforceable contract. /SneZZ v. Mitchell, 65 Maine, 48 ; Moore v. Nife Randolph, 6 Leigh, 175; Pom. Eq. § 1405, and cases cited; Adams Eq. §§ 77, 82; Butman v. Porter, 100 Mass. 837; Sailings v. Sailings, 9 Allen, 234.</p> <p>Verbal promise to buy not such a valuable consideration as required in equity. Bispham Eq. 372 ; Pom. Eq. 1293 ; Adams Eq. 77; Stone v. Ilackett, 12 Gray, 227; Wason v. Colburn, 99 Mass. 342.</p> <p>Letters previous to May 6, may identify the property, but not admissible to prove contract, because defendant revoked broker’s authority and withdrew his lots from market. His letter of May 25, not a ratification of previous contract, but authority to make a new and different contract.</p>

<p>Insurance. Insurable interest. Husband and wife. B. S., c, 49, § 20, c. 61, §§ 1 and 2.</p> <p>By tlie laws of tliis state, a husband has no insurable interest in the wife’s property, conveyed to her by him.</p> <p>Where a husband took out a policy of fire insurance, upon his wife’s property, payable in case of loss to himself, Held, that he has no valid claim to reimbursement because he can suffer no pecuniary loss, by the destruction of the property.</p> <p>Public policy forbids wagering on the property of others, in which the party has no interest.</p>

<p>On exceptions. At the nisi prius, term of this court, held in March 1888, at Skowhegan, Somerset county, Pomroy found the above entitled action on the docket, and filed a motion “that said action be dismissed, because, he says that the said Joseph Pomroy never had any judgment of any court against the said Jefferson Cates, to be appealed from; that there has been no such appeal taken; and that there has been no suit, between said parties, or appealed from. Wherefore, the said Joseph Pomroy prays that said supposed action be dismissed, and for Iris costs.”</p> <p>The court sustained the motion to dismiss, but refused costs, and Pomroy excepted.</p> <p>Prevailing party recovers costs in all actions, unless otherwise 'specially provided. R. S., c. 82, § 117. Costs allowed: Whitney v. Brown, 30 Maine, 557, (after mis-entry); Reynolds v. Plummer, 19 Id. 22, (action brought in wrong county) ; Turner v. Putnam, 31 Id. 557, (irregularly brought up); Call v. Mitchell, 39 Id. 465, (nullity, for want of jurisdiction) ; Brown v. Allen, 54 Id. 436, (dismissed for illegal recognizance); Bilis v. Whittier, 37 Id. 548, (by statute in force at time of judgment) ; Puller v. Miller, 58 Id. 40, (discontinuance) ; Bstes v. White, 61 Id. 22, (prevailing party); Bennett v. Green, 46 Id. 499, (dismissed for want of recognizance) ; Hunter v. ■ Cole, 49 Id. 556, (want of copies from appellate court) ; Cary v. Daniels, 5 Met. 236; Turner v. Blodgett, Id. 240; Jordan v. Dennis, 7 Id. 590; Hunt v. Hanover, 8 Id. 343, (no jurisdiction); Fuller v. Whipple, 15 Maine, 53, (judgment reversed, pending suit thereon) ; Poster v. Buffum, 20 Id. 124, (costs to indorser, maker having paid, pendente lite) ; Cole v. Sprowl, 38 Id. 190; Moore v. Lyman, 13 Gray, 394, (appeal); State v. Harlow, 26 Id. 75, (state on scire facias.)</p> <p>This not an action. Names inadvertently placed on docket. Nothing liere, but motion to dismiss, and that is oí' a supposed action. Plaintiff not entitled to costs, on his own motion. No> papers in case except the motion. On what can costs be taxed? Plaintiff cannot be harmed by this entry. No judgment, against him, can be entered up. Steward v. Walker, 58 Maine, 299.</p>

<p>On exceptions and report.</p> <p>This was an action of false warranty against the defendant, as one of the selectmen signing a town order, on the ground that he thereby falsely assumed to be the duly authorized agent, of the town of St. Albans, for the purpose of hiring money to pay town debts, for the year 1881, when in fact he had no such authority.</p> <p>The declaration is as follows : “For that on the 21 st day of November, 1881, the defendant together with one J. M. Skinner and A. J. Bonney, all of said St. Albans, were the duly elected, and qualified, and acting, selectmen of said town of St. Albans for the municipal year, beginning March 7,1881, and were known to the plaintiff as such; and that on said 21st day of November 1881, at said St. Albans said defendant falsely and fraudulently represented to said plaintiff that he and said Skinner, in their capacity as selectmen of said town, and as constituting a majority of said selectmen, had power and authority to hire money in behalf of said town, and to sign, execute and deliver on behalf of said town valid orders therefor on the treasurer of said town, and that they wore the agents of said town for these several purposes; and the plaintiff avers, that in consequence of the said defendant’s several false and fraudulent representations aforesaid and in full reliance thereon and believing the same to be true, he was then and there induced to and did loan to said defendant, the sum of three hundred dollars in money, and was induced to and did take therefor a certain pretended town order signed by said defendant and by said Skinner, as selectmen aforesaid, in the words and figures following:</p> <p>1300. St. Albans, Nov. 21st, 1881.</p> <p>To N. H. Yining, town treasurer or his successor:&emdash;Pay to A. E. Fuller or bearer, three hundred dollars and interest annually at 5 per cent, it being for money hired to pay town debts for the year 1881.</p> <p>No. 119.</p> <p>J. M. SKINNER,</p> <p>J. C. MOWER,</p> <p>Selectmen qf St. Albans.</p> <p>And the plaintiff avers, that said defendant did thereby undertake and warrant to him that said order was valid and binding on said town; whereas in truth and in fact neither said defendant nor said Skinner had any power or authority to hire money, in behalf of said town, for any purpose or to execute or deliver any valid order therefor, either on said town or on its treasurer, and said order was not valid or binding on said town; and by reason wholly of the false warranty of said defendant and of the several false and fraudulent representations as aforesaid, the plaintiff has lost said sum of three hundred dollars, with interest thereon from said .21st day of November, 1881, and spent time and labor and has been put to great expense personally, and in the employment of counsel in attempting without success to enforce said order against said town.”</p> <p>To this declaration, the defendant filed a demurrer, which after joinder was overruled by the court, and the defendant excepted.</p> <p>Before trial, plaintiff offered the following amendment to his declaration, and to which defendant objected as a new and different cause of action, and not allowable in the then state of pleading. Amended declaration, same as before, (inserting the words “undertook and warranted” after represented in the eighth line, inserting the words “had been duly authorized by said town” in place of the allegation, had power and authority to hire money in behalf of said town,) alleges, after the line 15, as before, “and by means of the said defendant’s false and fraudulent representations and warranty aforesaid, and by means of a certain pretended town order signed by said defendant, and by said Skinner, as selectmen aforesaid, in the words and figures following: (town order as before)</p> <p>And by means also of the false warranty, contained in said order, that the same was valid and binding on said, town, said plaintiff was then and there induced to and did loan and advance to said defendant, and to said Skinner, for said town, the sum of three hundred dollars in money. Whereas, in truth and in fact, neither said defendant, nor said Skinner, had any power or authority to hire money in behalf of said town, for any purpose, or to execute or deliver any valid order therefor, either on said town or on its treasurer, and said order was not valid or binding on said town: and by reason wholly of the false warranty of said defendant, and of the several false and fraudulent representations as aforesaid, tlie plaintiff has lost said sum of three hundred dollars, with interest thereon, from said 21st day of November, 1881, and spent time and labor, and has been put to great expense, personally, and in the employment of counsel in attempting, without success, to enforce said order against said town.”</p> <p>After the testimony was out, the case was reported to the law court to draw such inferences as a jury might, from the legally admissible evidence, and allow the amendment to the declaration, if allowable.</p> <p>The facts are stated in the opinion.</p> <p>If a person, acting as agent, represents that he is authorized to do a certain act in behalf of his principal, when in fact he has not such authority, he is liable either in tort or contract, as for a false warranty to any person who has suffered loss on the strength of such false warranty. 1 Chitty Con. 313, (11th Am. Ed.); Thomson v. Davenport, 2 Smith, L. C., 367, 368; Gotten v. Wright, 8E. &B. 648; Lewis v. Nicholson, 18Q. B. 603,510; Jeftsv. York, 10 Cush. 392, 395; Noyes v. Loving, 55 Maine, 408 ; Teal v. Otis, 66 Id. 329; Cherry v. Bank, L. It., 3 P. C., 24; Richardson v. Williamson, L. It., 6 Q. B. 278; Beattie v. Lord Hbery, 7 L. It., Ch. Ap. 777; Randell v. Trimen, 18 C. B. 786; Hughes v. Graeme, 33 L. J., Q. B., 335; Bartlett v. Tucker, 104 Mass. 336, 340; Royce v. Allen, 28 Yt. 234; Bedizen v. Nieolay, 53 N. Y. 467,469 ; Dang v. Parker, 52 Id. 494; While v. Madison, 26 Id. 117; 1 Chit. PI. 41, note S; Story’s Agency, § 264; Thompson’s Liability Officers, &c., pp. 1, 80, and notes.</p> <p>Plaintiff’s case: Defendant, as selectman, represented and warranted by signing and giving town order for hired money, that he had received authority from the town to hire this money, when in fact he had no such authority, and plaintiff having advanced his money in good faith on the strength of this false warranty, the defendant is liable.</p> <p>No particular words necessary, to constitute such representation or warranty. Naked assumption of authority, a warranty that the authority .exists. Order bears upon its face express representation that it is “for money hired to pay town debts for the year 1881.”</p> <p>Defendant, as selectman, had no authority to hire money, on behalf of the town, without express authority by vote of’ the town. Otis v. Stockton, 76 Maine, 506 and cases cited.</p> <p>Where one of two innocent parties must suffer from the fraud of a third, the loss should fall on the one who enabled the third party to commit the fraud. Campbell’s Sale of Goods and Com. Agency, p. 35, and cases there cited. Principle extended to cases of mere negligence or misplaced confidence. Id. p. 35. Rule as applied to blanks in an instrument: (negotiable paper) Bank v. Neal, 22 How. 96, 107; Davidson v. Lanier, 4 Wall. 447, 457; Angle v. Ins. Co., 92 U. S. 330 ; 1 Daniel Nego. Inst., § 836 ; Abbott v. Bose, 62 Maine, 194, 202; (stock certificate, nonnegotiable) Seivall v. Water Power Co., 4 Allen, 277, 279, 282; (Sealed instruments) So. Berwick v. Huntress, 53 Maine, 89; Drury v. Poster, 2 Wall. 24. Defendant made Skinner his appointed agent, by intrusting him with order in blank. He was culpably negligent, and plaintiff innocent of wrong. Defendant not equally innocent.</p> <p>Where the action is contract on implied warranty of authority, no fraud need be proved. Neither scienter, nor mala fides are material. Callen v. Wright, and cases, supra; Trowbridge v. Scudder, 11 Cush. 83, 87; 2 Chitty PL 262, 16th Am. Ed.</p> <p>If action be in tort, it is in the nature of a false warranty, and governed by its own peculiar rules. May v. Tel. Co., 112 Mass. 90, 94.</p> <p>Misrepresentation, was one of fact, and not of law. Beattie v. Lord Ebery, supra. Non-existence of necessary vote of town, not known to plaintiff. Bichardson v. Williamson, supra. Parties do not stand equal in duty and means of knowledge therein. Bigelow’s Torts, pp. 19, 20. Plaintiff may rest upon defendant’s representation, and forbear personal examination. Weare v. Cove, 44 N. H. 196; Story’s Agency, § 264; May v. Tel. Co., supra; Kerr’s Fraud and Mistake, pp. 78, 80; Chapham v. Shillito, 7 Beav. 149; Benj. Sales, § 429, note c. 2d Am. Ed.’ and exhaustive dis-mission in 2 Pom. Eq., §§ 887, 891, and notes § 895, el seq; Thomp. Neg. p. 1175. Same as to matter of record. David v Park, 103 Mass. 501; Ward v. Wiman, 17 Wend. 193; Brown v. Castles, 11 Cush. 348, 350; Atwood v. Chapman, 68 Maine, 38; Pom. Eq., § 810, and note p. 275.</p> <p>Defendant liable although a public agent. Noyes v. Boring; Weave v. Grove, supra.</p> <p>Alleged fraudulent representations, were matter of opinion,— matter of law, about which plaintiff knew as much as defendant did, or could. Holbrook v. Connor, 60 Maine, 578, 580, 581, 584, 585; Bishop v. Small, 63 Id. 12; Norton v. Marden, 15 Id. 44, 45.</p> <p>Selectmen, as such, having no jiower to hire money upon town’s credit, even to pay a town debt, plaintiff, if he had made reasonable inquiry would have ascertained whether the order was given for a matter for which the credit of the town could properly be pledged by the selectmen. Bich v. Hrrol, 51 N. II. 359; LAncoln v. Stockton, 75 Maine, 141, 145; Ladd v. Franklin, 37 Conn. 53 ; Hartford v. Bank, 49 Td. 539; S. P. Otis v. Stockton, 76 Maine, 506, and cases cited. One who contracts with a municipal corporation, or its officers, is bound at his own peril to know the limits of municipal power, and officers’ authority. Farnsworth v. Pawtucket, 13 II. I. 82; Sanford v. McArthur, 18 B. Mon. 421; S. P. Parsons v. Monmouth, 70 Maine, 264; Owings v. Hall, 9 Pet. 608, 628, 629; White v. Langdon, 30 Vt. 599; Gfoodrich v. Tracy, 43 Id. 314. This doctrine, especially reasonable and pertinent, when a party deals with selectmen and is resident of the town. Ladd v. Franklin, Farnsworth v. Pawtucket, supra, Austin v. Coggeshall, 12 R. I. 329, 332; Bank v. Winchester, 8 Allen, 120, 121. Plaintiff bound to examine town records. Cases in Conn., N. H., R. I. & Ky. supra; Parkin v. Small, 68 Maine, 289, 291. No deceit, fraud, or warranty, where subject matter is equally open to the knowledge, or inspection of each party. Poland v. Brownell, 131 Mass. 138, 142; Leavitt v. Fletcher, 60 N H. 182, 183.</p> <p>When a party dealing with an agent has same means of knowledge that the agent has, as to extent of his authority, agent not personally liable. Paddocle v. Kittredge, 31 Vt. 378, 384; Snow y. Six, 54 Id. 478; Smout v. Ilbery, 10 Mees. & Weis. 1; Jones v. Lownman, 4 A. & E. (N. S.) 235 to 239; S. C. 45 Eng. Com'. Law, R. 234; Jefts v. York, 10 Cush. 395, 396; Story’s Agency, § 265, and note. Declaration alleges a loan to defendant. This would be a fraud upon the town, to which plaintiff was a party. No allegation that defendant knew his representations were false. Carter v. Peak, 138 Mass. 439; Randell v. Trimen, 18 C. B. 786; Tryon v. WMtmarsh, 1 Met. 1; 2 Chitty’s PI. 691, 692, 693, 694.</p> <p>Amended count alleges the loan was “for the town,” introduces a new cause of action, and intended to relieve plaintiff from his attempted fraud upon the town, in taking a town order from a selectman in payment of his private debt. Plaintiff guilty of negligence. Counsel also cited: Webster v. Lamed, 6 Met. 522; Middlebury-v. Rood, 7 Vt. 125.</p> <p>Defendant responsible for representations made over his signature the same as for direct oral assertions. Cases cited, on this point, by defendant, relate to actions against corporation itself, or plaintiff had actual knowledge of falsity of representation and warranty. In Sanford v. McArthur, defendant’s name was not on the unauthorized notes.</p> <p>Principle of liability not confined to private agents alone. Noyes v. Loring, and Weave v. O-ove, supra, cases of public officers.</p> <p>Defendant can not set up defense of being a public officer. He ceased to act as such, by exceeding his authority, and went out of his way to do a private wrong.</p> <p>Viewed in the light of the decided cases, it was a personal contract, from which he is not relieved by being also a public officer.</p>

<p>On exceptions. Indictment for single sale of cider, in quantity less than five gallons, August 1, 1886. After a verdict of guilty, the defendant moved an arrest of judgment because 1st, no crime is charged in the indictment; 2d, everything charged in the indictment may be true, and still the defendant may be innocent; 3d, the indictment gives the defendant no notice of what he had to meet on the trial. The presiding justice overruled the motion, proforma, and the defendant excepted.</p> <p>There were other exceptions by the defendant, but they became immaterial, in the view taken by the court of the motion.</p> <p>Sale of cider, in the abstract, no offense. State v. McNamara, 69 Maine, 138. Indictment demurrable. State v. Keen, 34 Maine, 500 ; State v. Gurney, 37 Id. 149 ; State v. G-odfrey, 24 Id. 232; State v. Bennett, 79 Id. 55.</p> <p>Cider being excepted from the general provisions of the statute, the state must charge and prove it was sold as a “beverage or for tippling purposes.” Bex v. Liverpool, 3 East, 86; State v. North-field, 13 Yt. 565; Starkie’s Crim. PL, 2d ed. 190; 1 Bishop Grim. Proc., §§ 513, 637; State v. O'Donnell, 10 It. I. 472; Oom. v. Maxwell, 2 Pick. 139; Oom. v. Thurlow, 24 Pick. 374; Com. v. Odlin, 23 Pick. 275; Bishop Stat. Crimes, § 1084, b, note; Dawson v. People, 25 N. Y. Ct. App. 399, (11 Smith) Vanderwood v. State, 50 Ind. 36 ; Dowdell v. State, 58 Ind.</p> <p>This is an indictment under § 34, c. 27 of the E. S. prior to the amendment of 1887.</p> <p>The indictment declared the article sold to be “intoxicating liquor,” and the evidence must have sustained the allegation, as the verdict of the jury was “guilty.”</p> <p>The description — “to wit, a quantity less than.five gallons of cider” — might be rejected and the indictment would then be sufficient. Com. v. Conant, 6 Gray, 482; Com. v. Timothy, 8 Gray, 480; Com. v. Anthes, 12 Gray, 29; Com. v. Dean, 14 Gray, 99;</p> <p>An indictment as common seller or for nuisance would be sustained by proof of sales of cider unlawfully. State v. Roach, 75 Maine, 123 ; State v. Starr, 67 Maine, 242;</p> <p>Whether it is intoxicating liquor is a question of fact for the jury. Com. v. Bios, 116 Mass. 56.</p> <p>All matters of defense not a part of the description of the offense need not be set out in indictment. 1 Bishop on Crim. Proc. § 638. Com. v. Fdwards, 12 Cush. 187.</p> <p>A prima fade case is stated and it is for the party for whom matter of expuse is furnished by the statute to bring it forward in his defense. State v. G-urney, 37 Maine, 149.</p> <p>An exception or proviso which is not in the enacting clause, ■ whether in the same section with it or not, need not be negatived. 1 Bishop Crim. Proc. § 639, and cases there cited. Cuptill v. Richardson, 62 Maine, 257, 263: State v. Boyington, 56 Maine, 512; Com. v. Fitchburg R. R., 10 Allen, 189 ; Com. v. Mart, 11 Cush. 130,136.</p> <p>A negative averment need not follow the words of the statute. A negative in general terms will suffice. 1 Bishop Crim. Proc. § 641, and cases there cited. State v. Keen, 34 Maine, 500, 505.</p> <p>“Without any lawful authority, etc.,” sufficiently negatives all modes of selling warranted by law. Com. v. Conant, supra; Com. v. Davis, 121 Mass. 352; Com. v. Clark, 14 Gray, 367, 374.</p>

On exceptions, to overruling a motion in arrest of judgment, after verdict, upon the following indictment: “The jurors for said state, upon their oath present, that Benjamin Dodge of Newcastle, in said county of Lincoln, at Newcastle in said county of Lincoln, on the first day of June, in the year of our Lord one thousand eight hundred and eighty-six, and ■on divers other days and times between said first day of June, A. D. 1886, and the fifteenth day of July, A. D. 1886,…

<p>On report. This was a.n action of replevin. Writ dated November 2, 1881. Plea, general issue and brief statement, that at the' date of the writ and the service thereof the title to the property, and the right of possession was not.in the plaintiff, but in him the defendant, and in Gilman, Cheney & Co. who furnished him the money to pay for the same.</p> <p>The plaintiff, to support his title to the property claimed, being forty tons of hay, introduced a mortgage of real estate, from which the hay was cut, given by one Sanford Stevens to plaintiff, dated April 14,1877, and recorded April 20, 1877, and one of the $1,000 notes secured thereby; also a chattel mortgage, which appears in the opinion, dated April 19,1877, and recorded in the town clerk’s office, of Dexter, the same day.</p> <p>The defendant introduced evidence, bearing upon the question of said Stevens’ residence, at the date of the chattel mortgage, and which defendant alleged was in Bangor, while the plaintiff offered testimony to show it was in Dexter.</p> <p>Counsel argued this question of residence, and the proper place for recording the chattel mortgage, in their briefs at length. A report of the arguments upon this point, becomes unnecessary, by reason of the construction put upon the chattel mortgage, by the court.</p> <p>The full court were to render such decision as the rights of the parties required, upon the legally admissible evidence.</p> <p>That the hay was not in potential existence, at the date of the chattel mortgage, plaintiff answers, that Shaw’s deed of the farm to Stevens, the mortgage of the same back to Shaw by Stevens and the latter’s chattel mortgage of the hay to Shaw, were all simultaneous.</p> <p>Defendant had full knowledge of the chattel mortgage. He had lived in Dexter for ten years or more, said he knew all about it, and he had solicited advice of attorneys who informed him that it amounted to nothing. Sheldon v. Connor, 48 Maine, 584, was decided by a divided court. It can not be said that the law upon this point can be considered settled in defendant’s favor.</p> <p>Chattel mortgage invalid, because it does not describe definitely the farm that is to produce the mortgaged hay; it does not say when bought, nor where situated. Plaintiff can not recover because the twenty-five tons reserved are included in the replevied hay. Mortgage contains a power of sale which would protect a purchaser from Stevens. It was given before Stevens had any title to the farm if it means this farm from which the hay was cut. The deed of farm and mortgage back, not delivered until the next day, at least, after the mortgage of hay was recorded. Nothing conveyed by the chattel mortgage given before delivery of the other deeds. Head v. Goodwin, 37 Maine, 187; Pratt v. Chase, 40 Id. 269 ; Morrill v. Noyes, 56 Id. 469; Farrar v. Smith, 64 Id. 77.</p> <p>It can not affect third parties whose rights have intervened. Allen v. Goodnow, 71 Maine, 420; Griffith v. Douglass, 73 Id. 535.</p>

On report. Tbe law court were to render sucb judgment as tbe law and facts required. The action was assumpsit to recover of the defendant tlie sum paid out by tbe plaintiff upon a note, upon which they both were accommodation indorsers. The note was for $1600, payable to Alfred Sleeper, signed by Williams & Dean, but not indorsed by the pajme. The defendant was the first, and plaintiff the second indorser.

On exceptions. This was an action for indecent assault and battery upon the plaintiff, a married woman. The defendant offered testimony to prove specific acts of nnchastity on the part of the plaintiff with other men than the defendant prior to the alleged assault. The presiding justice ruled that such evidence was inadmissible, but allowed the defendant to submit evidence of the plaintiff’s general reputation for chastity. To this ruling the defendant excepted.

On exceptions. This is an action of scire facias on a recognizance given in the police court of the city of Belfast, on a complaint charging said Abner Gilmore with keeping and maintaining a common nuisance. Plea, the general issue. The case was referred to the presiding justice with the right to except.

On report. The law court were to render such judgment as the law and facts required, upon so much of the facts agreed, and testimony as is admissible, material and relevant. This was a petition for a writ of certiorari, to which the Union Water Power Company became a parly petitioner, praying that the proceedings of the respondent tribunal in laying out Mill street, in Lewiston, may be certified to this court and quashed.

On exceptions. Assumpsit to recover the value of a certain farm and personal property. The plaintiff put in evidence her deed to the defendants covering the property sued for. The deed is dated May 27, 1882. For the purposes of the hearing, it was admitted that the property mentioned in said deed, and which embraces household furniture and other chattels, was not paid for at the time of the conveyance, except so far as advances had been made, prior to that time.

On report. Action on a poor debtor’s bond. Defense, performance of tlie conditions of tlie bond. In support of this defense, defendant introduced in evidence tlie disclosure of tlie principal in tlie bond, and tbe certificate of tlie magistrates, discharging tlie debtor. It was admitted that tlie citation to the creditor was not under seal; and that the magistrate who issued the citation, was one of the sureties in the bond.

In equity. On appeal by defendant from a decree in favor of the complainant after hearing on bill, answer and proof. This was a bill in equity to compel specific performance of an award of referees, who made division of certain real estate between the parties, under an agreement to refer the matter of division to them. The premises belonging to the parties, in common and undivided, consisted of a certain lot of land, and also a barn thereon.

<p>On report, from tlie superior court, for Kennebec county. The law court were empowered to draw such inferences, from the legally admissible testimony, as a jury might and render such judgment thereon, as the law and evidence required.</p> <p>This was an action of assumpsit. There were two counts in the declaration. The first count was upon a promissory note of Sewall Lancaster, defendant’s testator, for four hundred dollars dated September 22,1875, and payable to the plaintiff on demand with interest. The note, upon which defendant’s liability was admitted, bore indorsements of interest paid to September 22, 1884.</p> <p>The second count was for seven hundred dollars, money had and received, by the said Sewall Lancaster to the use of the plaintiff. Under this count the plaintiff offered in evidence, two instruments in writing, signed by said Lancaster, of tbe following tenor, to wit:</p> <p>“Received of Abigail L. Sanford, three hundred and seventy-five dollars for investment, for wbicb she is to have eight per cent, interest per annum, from this date — October 14, 1870, and which I am to pay.</p> <p>2 cent U. S. j Rev. stamp. )</p> <p>S. Lancaster.”</p> <p>“Feb’y 25,1878.</p> <p>The above is secured by real estate conveyed to me, and which I hold in trust for Mrs. Á. L. Sanford.</p> <p>S. Lancaster.”</p> <p>“June 6,1871. Received of Mrs. Abigail L. Sanford, two hundred dollars, for investment with interest from this date.</p> <p>S. Lancaster.”</p> <p>“The above was loaned to Walter Matthews, the loan secured by real estate conveyed to me.</p> <p>S. Lancaster.”</p> <p>Plea, general issue, with brief statement that the alleged cause of action in the second count, had not accrued within six years next before the bringing of the suit.</p> <p>The testimony disclosed the transaction between the parties, to be of the following character:</p> <p>The plaintiff, Mrs. Sanford, loaned 1375.00, October 14, 1870, to one Walter Matthews, now deceased, and the loan was secured by real estate conveyed to Sewall Lancaster, in trust for her. June 6, 1871, she loaned the same party §200.00 secured in the same way. In 1875, the buildings on one of the lots conveyed to Lancaster, in trust, was destroyed by fire. The insurance money, §500.00, was collected by him, September 20, 1875, and on September 22,1875 he paid the plaintiff §400, the net proceeds of it, which was indorsed on his receipt for §375.00 dated October 14,1870. On the same day, September 22, 1875, the plaintiff loaned this §400.00 to said Lancaster, taking his note therefor,— being the note declared on, in this case.</p> <p>October 14, 1872, Lancaster paid the plaintiff §50.00 which was indorsed upon his second receipt for §200.00; but besides the interest on his note, made her no other payments.</p> <p>March 19, 1884, there was an interview between the parties. The plaintiff produced the note and it appears to have been written near the bottom of a sheet of paper, and there were figures of computations on the same sheet, above the note. The ■final figures are §480.81 and against them, a memorandum “will be due Oct. 14, 1884.” Said Lancaster died March 3,1885.</p> <p>The plaintiff contended that the figures, thus placed above the note were put there by Lancaster, March 19, 1884, to show how much he owed her, besides the note; and that they are a sufficient acknowledgment and promise in writing to take the casegout of the statute, and to make him personally liable therefor.</p> <p>The defense contended that they were made September 22,1875, to show plaintiff how much was then due her on the Matthews’ investment after deducting the §400 insurance money loaned to Lancaster; and that the last computations were made March 19, 1884, for the same purpose, and when the last payment of interest, including six months advance, was made.</p> <p>Tbe note described in tbe first count of the plaintiff’s writ, admitted to be due by the defendant, becomes material only as to the indorsements and figures thereon proved to be in the handwriting of the testator, as evidence of the indebtedness upon the papers under the second count.</p> <p>The receipt for $375.00 for investment of October 14th, 1870, containing an express agreement for the payment thereof, with interest from that date, by the defendant’s testator, cannot be construed as a promise to pay at its date, but the right of action, would commence upon demand, and not before, — and the evidence clearly shows that no legal demand was made until March 19th, 1884; and the action is not, therefore, barred by the statute of limitations.</p> <p>Tbe receipt oí June 6th, 1871, for $200.00 is also of the same nature. The evidence in writing and figures proved to have been made by the testator, relates to the whole amount of his indebtedness when so made in 1884, of between eight hundred and nine hundred dollars at that time; and the statute of limitations would not commence running prior to that date. Thomas v. Waterman, 7 Met. 227, 229; Reynolds v. Sumner, 3 111.663; 12 West. Rep. 827.</p> <p>Where defendant invests funds of another in his own name, the statute of limitations does not apply. Trustees v. Harrodsburg ¿‘e. District (Ky.), 7 S. W. Rep. 212; Thomas v. Merry, (Ind.), 15 N. E. Rep. 244; Homey. Ingraham, (111.), 14 West. Rep. 567.</p> <p>The defendant claims that, if the two receipts are personal obligations of Sewall Lancaster, deceased, they are barred by the statute of limitations; and if they disclose a trust, the remedy is in equity and not at law. We answer, that, assuming the general rule to be, that a cestui que trust can not sue his trustee at law, "it is well settled, that if a trustee admits a balance in his hands, due from him to the cestui que trust, he may be sued at law on such admission. 1 Cliitty’s Pleading, (16 Ed.) 40; Roper v. Holland, 3 A. & E. 99; S. C. 1 Har. & Woll. 167; 4 Nev. & Man. 668.</p> <p>Counsel argued that if the two receipts were personal obligations, they are barred; and if they disclose a trust, plaintiff’s remedy is in equity for specific performance.</p> <p>Trust not terminated by demand; no demand for money made. Plaintiff only asked if it was not about time she had a deed of the Matthews’ property, and Lancaster replied he didn’t know but it was.</p> <p>Not a case of diversion of funds, or failure to invest. Matthews’ estate, only, liable for the money. Investments made with knowledge and consent of plaintiff.</p> <p>The words “and which I am to pay” in the receipt relate to the payment of interest and not the principal. Lancaster was to have the care of the property, collect the interest and pay it to plaintiff; but not become personally liable before it was collected.</p>

Report, on facts agreed. The plaintiff is, and ever lias been, a resident of the city, county and state of New York. The defendant is a resident of Dexter in the county of Penobscot, and a deputy sheriff in'\tnd for said county of Penobscot. October 1, 1885, one William J. Haseltine, from his birth a resident of said Dexter, was indebted to the plaintiff for certain goods before that time purchased by him, of the plaintiff, through his travelling salesman, at said Dexter.

<p>Insolvent lavj. Assignee’s title, — nature of. Mortgage of after-acquired property.</p> <p>In a suit in trover for tlie value of property brought by an assignee in insolvency, the plaintiff’s rights are only those of the insolvent himself.</p> <p>His rights are only those which the insolvent himself had and could assert at the time of his insolvency, except in case of fraud.</p> <p>As between the parties, a mortgage upon goods which authorizes the mortgagor to sell them, and with the proceeds of such sale to purchase other goods to take their place, may be upheld as to such after acquired property.</p>

On report. Bill in equity, heard on bill, demurrer and joinder. Held: that the services to be performed were personal, and could not be assigned to a stranger; and a demurrer to the bill was sustained, because it did not allege that the transfer was made with the consent of the mortgagee.

On exceptions, by plaintiffs to the pro forma ruling of the presiding justice, discharging the trustee who made a disclosure, and upon which arose the question of jurisdiction of the court over the property of the defendant, no service having been made upon him.

On exceptions, by appellants, upon facts agreed. Held: etc., after the day when the report of the commissioners is made. Appellants were, admittedly, present. Rnle of construction of statute: Coffin v. Rich, 45 Maine, 507; Currier v. Phillips, 12 Pick. 226.

<p>On MOTION AND EXCEPTIONS.</p> <p>This was an action of assumpsit to recover the amount of a town order for $56.00, dated February 18, 1881, payable to Mary Etta Bradstreet, or bearer; it being for teaching school in District No. 10, in the town of Albion, and indorsed, “April 19, 1881. James Whittaker, Treasurer, Albion.”</p> <p>The writ contained the common money counts, and two special counts upon the order.</p> <p>Defense, general issue and brief statement that the order, which was signed by only two of three selectmen of the town, was not legally executed by the proper officers of the town; that no consideration was ever received by the town from the plaintiff or her assignors, on account of the order; that it had been materially altered since it was issued to the payee; and that the order, in its original form, was once paid by the treasurer of the town, and subsequently put in circulation by fraud or mistake, and without consideration to defendants.</p> <p>The plaintiff introduced evidence showing the origin of the order, and its purchase by her, for value, from a subsequent holder who obtained it of one Webb who appears to have had it of the town treasurer several weeks after its acceptance; also the records of the town, and town reports for the several years from 1881 to 1885, by which it would appear, as she contended, that the treasurer had never turned it in to the town in the settlement of his account, and that it had remained as an outstanding town debt.</p> <p>The defense called Edwin York, who testified “I was school agent for District No. 10, in Albion, for a part of the year 1881., Mary Etta Bradstreet taught school in that district. At the close of the school, I obtained an order for her pay; I obtained the order from Amasa H. Hammond (order produced), — that is the order. Mr. Littlefield was not there when I took the order; his name was not there when I took it. Subsequently I paid Miss Bradstreet and took the order. Mr. Littlefield did not sign the order while I had it. I did not keep it over three weeks. I took it to Mr. Whittaker, our town treasurer, and he paid the money-on it; and the subsequent history of it I don’t know anything about. I knew it was inquired for considerably throughout the town. They inquired of me about it; but I knew nothing about it, after I let Mr. Whittaker have it.”</p> <p>The presiding justice then stated that if the plaintiff could not disprove this testimony, a verdict for the defendants would be directed, and the plaintiff allowed exceptions.</p> <p>The plaintiff offered to show that the order was paid out again, or that the money obtained for the order issued by the treasurer, was to pay the selectmen the year before, on account of their salaries. The case was submitted to the jury upon the following charge:—</p> <p>“The plaintiff sues to recover 156.00 from the town of Albion, and to prove her suit has read in evidence a town order, No. 104, payable to Mary Etta Bradstreet, or bearer.</p> <p>It is agreed by the parties that Mr. Edwin York was the school agent for the district where the payee taught school; that he paid Mary Etta Bradstreet, and received from the chairman of the selectmen this order, which thereafterwards, within a period of a few weeks, he presented to Mr. Whittaker, the town treasurer, for payment; and thereupon the town treasurer paid the order. Now the plaintiff offers to prove, that after Mr. Whittaker paid the order, he negotiated it in payment of services of the selectmen for the year before; and I instruct you that, that would be no answer to the defense set up by the town; and even if these facts should be proved, they would not avail the plaintiff, and she could not recover on the order.”</p> <p>The verdict was for the defendants, and the plaintiff excepted to the ruling and charge.</p> <p>Besides the general motion to set aside the verdict, as against law and evidence, the plaintiff also filed a motion for leave to amend her writ, by adding a new count on account annexed; ¡and for leave to file an assignment from Hammond and Littlefield «of the claim due to them from defendants, for their services as ¡•selectmen for the year 1880-81, which bills or claims were paid, in part, (as alleged in the motion) by the money paid for the •order, in suit.</p> <p>Plaintiff should have been allowed to show that the town treasurer, having no town’s money on hand, cashed the order with his own funds ; and afterwards procured money on the order for the town with which to pay salaries of selectmen. The order made out a prima fade case, and its impeachment should come from the defense. Dillon Mun. Corp. § 502, (old 410) ; Treat v. Orono, 26 Maine, 217; Emery v. Mariaville, 56 Id. 315.</p> <p>Jury should have passed on the testimony, offered by plaintiff, without the presiding justice expressing his opinion as to what the verdict should be. 11. S., c. 82, § 83. The presiding justice erred in his charge when he said “it is agreed by the parties, etc.” York’s testimony, if true, does not show that the order was paid by the town’s money, or that the treasurer so intended. His name upon the order shows he did not so intend; town could not claim it had been paid until it had been allowed in settlement of his account. Whittaker had none of town’s money then; had the right to cash it with his own money, hold it as his own, or pass it to another for value. It would remain a valid order against the town, until charged in the treasurer’s account and allowed him, on settlement. Willey v. Greenfield, 30 Maine, 452.</p> <p>It is not a town payment, until two things concur, actual payment, and credit to treasurer therefor, — especially so, where there is no particular pile of money that constitutes the treasury. Payment thus made, is an individual matter, requiring a crediting to make it a town-transaction. No evidence that Whittaker obtained credit for it prior to time plaintiff became owner.</p> <p>Whittaker’s indorsement an official act; guaranty that the order was regular and valid promise of town to pay when in funds.</p> <p>.Rights of treasurer in unpaid vouchers: Gandí Bank v. Supervisors, etc., 5 Denio, 525.</p> <p>The ruling of the presiding justice prevented the plaintiff from showing a state of facts, by which defendants were estopped from denying their liability, and bringing her case within the principle of Lincoln v. Stockton, 75 Maine, 141, 146, and cases there cited.</p> <p>Plaintiff, as assignee of the order, can maintain her action under the money counts. R. S., c. 82, § 130; Wood v. Decoster, 66 Maine, 542; Ware v. B. B. Go., 69 Id. 97. Courts of law will protect equitable interests of assignees. Pollard v. Ins. Co., 42 Maine, 221, 225; Bank v. McLoon, 73 Id. 498.</p> <p>Order was accepted the day before Hammond & Littlefield were paid. See their receipt dated April 20, 1881. Plaintiff can recover the money, received by town on the order to pay these parties, under the count for money had and received. Bank v. Stockton, 72 Maine, 522, and cases there cited.</p> <p>Plaintiff, having admitted through her counsel, that she was unable to disprove or controvert the payment of the order, a verdict for defendants was rightfully ordered.</p> <p>After its payment, order ceased to be negotiable. Ballard v. Greenbush, 24 Maine, 336; Pray v. Maine, 7 Cush. 253; Chapman v. Collins, 12 Cush. 163.</p> <p>Plaintiff’s request to be allowed to show that the money, paid on the order by previous holder, from whom it came to her through several parties, was paid to Whittaker, — the treasurer- — and by him used to pay a town debt, — thus laying the foundation for recovery under money counts — was rightfully refused. The treasurer could not bind the town in any such way. Bank v. South Hadley, 128 Mass. 503 ; Otis v. Stockton, 76 Maine, 506.</p> <p>Plaintiff’s money not used to pay a town debt. She bought of her brother who had it of another party; and no attempt was made to trace it back to Whittaker. No" one but the original party, who paid it, can maintain an action for money had and received. Non-negotiable claims must be assigned in writing.</p>

On REPORT. Assumpsit on a policy of fire insurance. Tbe law court were to determine all questions of law and fact, and render judgment accordingly. Plea, general issue, and brief statement as follows: 1. That the plaintiff at the time the policy of insurance declared on was issued, and at the time the buildings insured were destroyed by fire, was not the owner of said buildings and had not an insurable interest therein. 2.

On exceptions, by plaintiffs. This was an action on the case for obstructing the Piscataquis river, in 1884, at Abbot. The plaintiffs and others obtained a charter from the state, in 1883, under which they had constructed two reservoir-dams and otherwise improved the river above Abbot.

On exceptions, by defendant, to overruling a demurrer to an indictment for unlawfully soliciting insurance risks. The indictment, containing two counts, was as follows:— First count. At the supreme judicial court, begun and holden at Rockland, within and for the county of Knox, on the second Tuesday of March in the year of our Lord one thousand eight hundred and eighty-eight.

<p>On exceptions, by defendant, to overruling a demurrer to an indictment for unlawfully soliciting insurance risks.</p> <p>The material portions of the indictment are sufficiently ,stated in the opinion.</p> <p>The indictment does not state the means employed; nor that a risk was procured; nor money received for a premium.</p> <p>The statute provides, “if any person solicits, receives or forwards any risk or application for insurance to any company, without first receiving such license, or fraudulently assumes to be an agent, and thus procures risks and receives money for premiums * * Defendant must have, by soliciting, procured a risk and received money for a premium of said Gould, which the indictment does not allege. The crime consists as much in procuring the risk, and receiving money for premium, as in soliciting. If he only solicited, there is no crime.</p>

On exceptions, by plaintiff, to the rulings of the justice of the Calais municipal court.

On exceptions. Assumpsit oil tlie writing signed by the defendant set out in the head note. Plea, general issue, with brief statement that plaintiff’s action accrued more than six years prior to tlie commencement of tlie action.

On report, upon agreed statement. This was an appeal from the probate court, for Cumberland county, upon the settlement of the appellee’s account as executor of the will of Daniel Brown, late of Portland, deceased.

On report. Bill in equity, heard, on bill, answers and proof.

On RETORT. Tliis was a bill dated December 26, 1883, to redeem a parcel of land from a mortgage, lield by the defendant Blake, under an assignment from one Smith, holder of the original mortgage, dated April 16, 1880. The usual statute demand for an account was made on Blake, December 10, 1883; and no account was given.

<p>Mandamus. Judicial inquiry into passage of laws. Records. Evidence. “Medical Registration Act” óf 1881, not a law.</p> <p>Mandamus to redress a public grievance must be moved for and prosecuted by tbe attorney for tbe state in tbe state’s bebalf.</p> <p>Whether an act of tbe legislature be constitutionally passed is a judicial question, to be decided by tbe bench from an understanding of public matters, regardless of plea or proof.</p> <p>Tbe secretary of state is a constitutional officer, and is required to “carefully keep and preserve tbe records of all tbe official acts and x>roceedings of tbe Governor and Council, Senate and House of Representatives;” and such records are to be kept in bis office.</p> <p>Tbe records of tbe proceedings of tbe legislature in tbe secretary’s office, fair upon their faces, showing no infirmity that would invalidate tbe record if not explained, are conclusive evidence of what they purport to be, and can not be overturned by parol evidence.</p> <p>Tbe “Medical Registration Act” of 18S7, is shown by tbe record in tbe secretary’s office to have been vetoed by tbe governor and refused a passage over tbe same; — and tbe record is conclusive.</p>

This was a suit arising out of the settlement of the estate of Augusta P. Norton, deceased, intestate, involving the question of inheritance. The appellants, are the natural or Hood heirs of the deceased, her mother, brothers, and sisters, she having died without issue. The appellee is a young child, less than five years old, who is claimed to be heir of the deceased by adoption, she having no claim by kinship.

<p> Officer. Title in issue. Officer de facto. Damages. </p> <p>When an officer sets up liis title to an office in justification of liis official act, for which the action is brought, he must prove Ms legal title to the office.</p> <p>It is not sufficient that he shows ho was an officer defacto.</p>

On exceptions. Appeal from a decree of the judge of probate, Waldo county, refusing to vacate a decree granting administration on the estate of one Albert Devereux.

On motion and exceptions. Exceptions. The jury, failing to agree, were discharged by the officer in charge, without a verdict at midnight, under orders of the presiding judge.

<p> Insurance. Insurable Interest. Ownership. Notice. Proof of Loss. Waiver. </p> <p>At the time of issuing a policy of fire-insurance the plaintiff bank held a mortgage upon the insured premises, and the policy contained a clause by which the policy was made payable in case of loss to the bank “as its interest may be.” Held, that this was not an assignment of the policy but, in effect, an accepted order on the defendant to pay that amount to the plaintiff, in case of loss.</p> <p>The mortgagor subsequently conveyed the property, and assigned the policy to another who in turn transferred the property, with the policy by the consent of the defendant to the plaintiff, receiving back an agreement, not under seal, for a re-conveyance on certain conditions. A loss under the policy afterwards happened. Held, that the plaintiff under the last conveyance held the legal title, — the mortgage being discharged or merged— and was the owner of the policy issued upon the property insured, and entitled to enforce its payment.</p> <p>The proof of loss was made and notice given, not by the bank but an intermediate party, having an equitable interest under plaintiff’s last grantor. It appearing that all the material facts were known to the defendant company, which made no objection to the sufficiency of the proof, its form, or the source whence it came, but was received by the oompany and a satisfactory conclusion reached, through its adjuster, as to the actual damage, and no suggestion is now made that it was not correct, or that the company has suffered from any deficiency in the proof, Held, that all objections to the notice and proof must be considered as waived.</p>

On report. The parties agreed that if the action can be maintained upon the plaintiff1’s testimony, it should come back for trial. Action by a brakeman, for personal injuries received at the railroad station, in Bangor, while shackling a broken box car unfit for use and dangerous to handle, on which the draw bar had been torn away and the bumpers smashed and broken. The declaration is as follows:— First count, charging negligence by reason of broken car.

On REPORT. Bill in equity certified to the full court for decision, in vacation, under R. S., c. 70, § 13, by the presiding justice, upon the request of the parties. The bill alleged, in substance, that the plaintiff filed his petition in insolvency, in the insolvent court for Knox county, March 14, 1888, and that a warrant was issued thereon March 20, returnable April 17, 1888. The messenger gave the public notice required by law.

<p> Plea in abatement. Practice. Replevin. </p> <p>A plea in abatement, to a replevin writ brought in a wrong county, is bad, if the plea concludes with a prayer “of judg— of said writ.” The abbreviated expression “judg — ” will not be aecopted for the word judgment.</p> <p>Where matter, which is pleadable in abatement, appears on the face of the writ, the practice requires that a prayer for judgment shall be inserted in both the beginning and conclusion of the plea. Dilatory pleas are allowed, because sometimes promotivo of justice; they are strictly construed, because often preventive of justice.</p> <p>Where a replevin writ is brought in a right eonrt, but in a wrong county, and the defendant undertakes to avail himself of the objection by pleading it in abatement, and his plea fails, on demurrer thereto, for want of proper form, he will not he permitted to have the benefit of the objection upon subsequent motion, or under any subsequent pleadings, although the objection might have boon a defense under the general issue, as well as in abatement.</p>

<p>Repoet, on facts agreed.</p> <p>Action on the case to recover damages of the defendant, city clerk of Auburn, alleged to have been sustained by the plaintiffs, through defendant’s mistake and negligence in recording an attachment.</p> <p>The writ is dated Sept. 6th, 1887: — Ad damnum, one hundred and fifty dollars: — plea, the general issue, which was joined.</p> <p>The writ has two counts, one for the loss of a lien attachment, and one for loss of an ordinary attachment of the property in question; both however intended to cover the same claim.</p> <p>The facts are as follows :</p> <p>February 17, 1887, Jonas W. Strout and Frank H. Fellows, copartners as Strout & Fellows, were indebted to the plaintiff in the sum of $74.79 for materials furnished the said Strout & Fellows, within ninety days next preceding said date, used in the erection of a certain wooden building, described fully in the plaintiffs’ writ.</p> <p>On said date, the plaintiff commenced suit against said Strout & Fellows, duly claiming a lien, and commanding the officer to attach, &c., to enforce the same.</p> <p>The writ in said suit was duly delivered to the sheriff for service, and pursuant to the command in said writ said officer attached said building, as the property of the debtors, and it being of such bulk that it could not easily be removed, filed in the office of the city clerk of the city of Auburn, where said building was located, an attested copy of so much of his return as is required by the statute in such cases.</p> <p>On the back of said document appears the following :</p> <p>“Androscoggin, ss, — Registry of deeds, — Received, Feb. 18, A. D. 1887, at 10 h, 50 m, A. M.</p> <p>Rodney F. Foss, City Cleric.</p> <p>The foregoing return of the officer was placed on file by said clerk in his office, and remains on file in the office of the city clerk of Auburn.</p> <p>On the city records, in the book of attachments, the following entries were made by said defendant:—</p> <p>Defendants — Fred H. Fellows of the firm of Strout & Fellows.</p> <p>Plaintiffs — Lewiston Steam Mill Company.</p> <p>Date of Writ — Feb. 17,1887.</p> <p>Court Returnable — L. M. C.</p> <p>Officer, Hillman Smith.</p> <p>Description of the property — -One story wooden building situated in Auburn on Oaks road leading to Danville Junction.</p> <p>Date of Attachment — -1887, Feb. 17, 4 h, P. M.</p> <p>Amount — f 10 0.</p> <p>Date of entry^ — 1887, Feb. 18, 10 h, 50 m, A. M.</p> <p>City Clerk, R. F. Foss.</p> <p>No. — 46.</p> <p>February 19, 1887, Strout & Fellows mortgaged said building to one N. M. Neal, which mortgage was duly recorded in the city clerk’s office, in Auburn, for a sum exceeding the value of said building, but other personal property was included in said mortgage, which with said building, exceeded in value the amount of said mortgage.</p> <p>The suit of the Lewiston Steam Mill Company proceeded to judgment against the said Strout & Fellows, and execution issued thereon, against the defendants and said building, on the sixth day of May, 1887, for the sum of 175.77, debt or damage, and 18.49, costs of suit.</p> <p>Said execution was seasonably placed in the officer’s hands, who sold the property to the plaintiffs, for one dollar, May 31, 1887, after giving public notice of the sale, by posting notices of the sale in Auburn; but did not post any notices in Lewiston, where the sale took place.</p> <p>Afterwards the mortgagee, having tendered the plaintiffs one dollar to redeem their claim, received a bill of sale from them of their interest in said building.</p> <p>There was no other property of the defendants which could be attached to satisfy said execution, and the same was duly returned into court, satisfied only in the sum of one dollar, as aforesaid.</p> <p>Since the time of said sale and subsequent to the time of bringing this suit, the said Fellows went into insolvency, and the plaintiff’s are entitled to receive a dividend on their claim against said insolvent estate, amounting to #14.88, as of Sept. 15, 1887; which is all they have received on said claim.</p> <p>Upon such of the foregoing facts as, would be admissible or are relevant and material, the law court were to render such judgment as the law and facts require.</p> <p>The law required the defendant to receive a copy of the officer’s return, noting thereon the time, enter it in a suitable book, and keep it on file for inspection of those interested therein. R. S., c. 81, § 26.</p> <p>The law provides for the clerk’s fee.</p> <p>The clerk negligently failed to do his duty. The only rational interpretation of the law would seem to be that the return was to be recorded as any other instrument.</p> <p>This is evident from the closing sentence of the section above cited, which in providing for cases in an unincorporated place says, “such copy shall be filed and recorded in the office of the clerk of the oldest adjoining town in the county.”</p> <p>But, granting that the defendant would have been justified if' he had merely filled out the blanks in his book with correct abstracts, instead of the full record, yet, by what seems to be extreme negligence, he did not even do this. The officer’s return gave the names of the defendants correctly, — “Jonas W. Strout and Frank H. Fellows, late copartners as Strout & Fellows” — ■</p> <p>The city clerk, got it, “Fred H. Fellows, of the firm of Strout & Fellows.”</p> <p>If the alteration of the middle letter of a name, in a certificate of attachment, is sufficient to make it of no effect, (.Button v. Simmons, 65 Maine, 583) what must be the effect of the entire change of the first name, as in tins case ?</p> <p>There is nothing in the record to show to what court the action was returnable. “L. M. C.,” which was all our clerk found time to write, might, indeed, mean Lewiston Municipal Court, or it might mean almost anything else.</p> <p>But it certainly could give no information, to any one possibly desiring to contest the attachment, at which term of the court it' would be necessary for him to appear.</p> <p>If the record is to be of any value, at all, it must be sufficiently accurate to furnish constructive notice of all necessary facts connected with the return, so that a reasonable person, on inspection of it would be aware that the property of Frank H. Fellows and Jonas W. Strout was attached.</p> <p>The negligence of the recording officer in making an incorrect entry upon his books invalidates the attachment, as against subsequent incumbrances.</p> <p>It has recently been decided in this state that a mortgage for two thousand dollars, recorded as two hundred dollars, “was not proof of the record of the two thousand dollar mortgage.” Hill v. McNichol, 76 Maine, 314. See also cases there cited.</p> <p>The strongest cases we find on the defendant’s side of the question, are those arising under a statute which provides that the instrument is to take effect from the time it is filed. Jones on Mortgages makes this distinction. He lays down the general proposition that “if the record of a mortgage be defective for any icause, it does not amount to constructive notice, * * * * * the obligation of giving notice rests upon the. party holding the "title.” Jones, Mort., § 550.</p> <p>But he qualifies this by adding, “where the law makes the record complete as constructive notice from the time of delivery ■of the mortgage to the recording officer to be recorded, it follows •that .any error in transcribing the deed, as for instance, * * * in the sum secured by it, does not prejudice the mortgage.” Id. ■§ 552.</p> <p>Our statute contains the provision referred to above, namely, “A deed or instrument” is to be minuted “with the time when it was received and filed, and shall be considered as recorded at the time when such minute is made.” JR. S., c. 7, § 15.</p> <p>In regard to the effect of such a provision, it seems apparent that there is a conflict between the law as laid down by Mr. Jones, and that enunciated in Hill v. McNichol, cited above.</p> <p>The different states of the Union are hopelessly divided on the whole question. The cases are collected in 91 Am. Dec. 109, note.</p> <p>To the cases cited against our position may be added that of Syhes v. Keating, 118 Mass. 517; but it may be remarked that this case was decided with two of the judges absent, and that no authorities are given for the position taken.</p> <p>We think that with regard to a deed or mortgage, the position of the court in Maine is decisively taken in Hill v. McNichol.</p> <p>The further question arises, whether an attachment as in this case stands on any different basis.</p> <p>Why should it ? On general principles is there any good reason for applying one rule of law to an incumbrance in the shape of a conveyance, and another to one in the shape of an attachment ? It would seem to introduce unnecessary confusion into our practice.</p> <p>Why should a party who finds a mortgage recorded for the sum of two hundred dollars, upon a piece of property which he thinks of buying, be entitled to rely upon the record as stating the whole incumbrance, but if he finds an attachment for two hundred dollars, be obliged to hunt up and examine all the proceedings, before he has a right to conclude that it should not read two thousand dollars, instead ? Or, to put it differently, — if he should look through the records for an incumbrance upon the title 'of John Jones or Frank II. Fellows, but should only find incumbrance upon the property of William Jones or Fred II. Fellows, he might rely upon the record as he found it. Is the court then to say that if he looks for an attachment against John Jones or Frank H. Fellows, and only finds one against Fred H. Fellows, he must hunt further ? or in other words, for it would practically amount. to the same thing, he must, at his peril, in every case, find the original papers placed in the hands of the recording officer.-</p> <p>So much for the reason of the matter. It would seem that unless the legislature had made it necessary for the courts to do so, they would hesitate long before saying that the record was to be relied on in the ‘one case, and something else, entirely indefinite, in the other.</p> <p>We believe however, that as our statute reads, the reason is stronger for holding that such an attachment, as the one in question, must stand or fall by the record, than in the case of a mortgage.</p> <p>As we have suggested, orir statute provides that mortgages, &c. shall take effect from the time they are filed for record. So in the case of attachment of real estate, R. S., c. 81, § 59.</p> <p>If the principle to which we have referred, as laid down by Jones, and sustained by the decisions in a number of the states, that there is a distinction when the law provides, that an instrument shall take effect from the time of filing, is to apply at all in Maine, it must apply, under the sections above cited, to the case of a mortgage or real estate attachment. But the contrary doctrine has been clearly established in Sill v. MeNichol.</p> <p>Nothing is said in c. 81, § 26, about the relation of the attachment to the time of filing. There is the simple substitution of constructive for actual possession, and we submit that the constructive possession must be shown by the entries of the clerk, sufficiently so that a purchaser may be informed by the appearance of the record how the property is held, — and that he may rightfully depend on the record as he finds it to inform him of his title.</p> <p>Assuming the inaccuracies on the part of the clerk to be so material, that a subsequent purchaser would have no notice of the attachment from the clerk’s entry, still the attachment itself was not thereby rendered inoperative. The entry by the clerk is no part of the attachment; it is simply an index and the attachment is effectual without it.</p> <p>The provision of § 26, relating to the city clerk is a subsequent matter. He shall “receive the copy, noting thereon the time, enter it in a suitable book, and keep it on file for the inspection of those interested therein.” The only parties having any interest in the entry to be made by the city clerk are those who, as subsequent purchasers or otherwise, may have occasion to look for attachments; and as to them, it is simply an index; if it is sufficiently full, so that such parties can refer to the files, they have no cause for complaint.</p> <p>In this case, if there was any failure of duty by the clerk, which it is not necessary to discuss, it was to N. M. Neal, the mortgagee, and not the plaintiff. Darling v. Dodge, 36 Maine, 370; Sykes v. Keating, 118 Mass. 517; Sehell v. Stein, 76 Pa. St. 398, S. C. 18 Am. Rep. 416; Bishop v. Schneider, 46 Mo. 472, S. C. 2 Am. Rep. 533; Chatham v. Bradford, 50 Ga. 327, S. C. Am. Rep. 692.</p> <p>In all the three cases last cited it was held that the index was no part of the record of the deed; so here, the entry by the clerk is no part of the attachment; that was valid and effectual when the officer seasonably filed his copy in the clerk’s office, especially if the copy, as here, remained on file.</p> <p>But the case shows that the plaintiffs’ own action caused the damage of which it complains.</p> <p>It appears that the Neal mortgage of February 19, 1887 was given after the attachment, and that the mortgage covered not alone the building which the plaintiff attached, but also other personal property “which with said building exceeded in value the amount of the mortgage.”</p> <p>The officer’s return on the execution shows that be sold “said building” on May 31, 1887, for one dollar to plaintiff, who after-wards accepted from the mortgagee the sum of one dollar in discharge of its claim on said building.</p> <p>It thus clearly appears that when they made the seizure on execution, plaintiffs’ attorneys did not consider the attachment lost, for they thereby endeavored to “enforce the plaintiffs’ lien claim;” the mortgagee did not so consider, for he tendered the price for which the building was sold “to redeem plaintiffs’ claim on said building,” and the plaintiff received the money “in discharge of the same,” and executed a bill of sale to said mortgagee. The idea had not then come to them that the attachment was worthless ; they paid their own price for. the building and received their money, —the amount which they had fixed as the value of the building, and its true value for anything that appears in the case.</p> <p>That they did not see fit to bid more was their own misfortune; that no other person bid higher may possibly be explained by the fact that the officer instead of posting the notices of sale and of adjournment “in the town or place of sale” as required by E. S., c. 84, § 4, posted them in Auburn, the sale being in Lewiston.</p> <p>The fact is, this claim that the attachment was lost through the negligence of the clerk is an after-thought, and utterly inconsistent with the plaintiffs’ course in the matter. The loss occurred in not bidding the building in for a larger sum, if it was worth more ; if not, they suffered no loss, for they received the full value of their attachment.</p> <p>It is impossible to state what the fact is as to the claim of loss, for the value of the building does not appear in the case, except as it is to be inferred from the price for which it was sold by the officer.</p> <p>For this reason, if for no other, it seems to us impossible to render a judgment for the plaintiff, there being no evidence that a dollar was lost.</p>