Volume 82 — Maine Reports

Report, oh facts agreed. The defendant company is a duly organized corporation under its charter, and by virtue thereof, has made extensive improvements in the streams named in it, for the purpose of facilitating the driving of logs. Among other improvements, the company built a dam across the Swift Cambridge river, at a point about four miles, as the river runs, above the plaintiff’s land in Grafton. A head of about five feet of water can be obtained by the dam.

Report, on facts agreed. This was an action of assumpsit, commenced after due demand September 9,1887, to recover from the defendant property which he had received of the plaintiff, whom he then claimed to be his ward. The writ contained a count upon an account annexed of $3,094.50.

On exceptions. This was au action of assumpsit on a promissory note given by the defendant jointly with two other persons. The administrator did not testify. The defendant Jarvis E. Baker, husband of Eliza A. Baker, co-defendant, was defaulted the day before the trial.

On exceptions. This was an indictment against tlie defendant for being a common seller of intoxicating liquors.

<p>On exceptions and motion.</p> <p>Action of assumpsit, in which there was a trial in the superior court, Cumberland county, to recover the sum of §2,129.91 due on a note for §3,000, dated October 1, 1882, made by the defendant, and which- the plaintiff claimed was delivered to Mm as collateral security for a note of §5,000, which Phinney & Jackson owed him, — he having forborne a suit on the last named debt in consideration of receiving the collateral security. The defendant answered that he had paid it; or that it being an accommodation note given by him to Phinney & Jackson, it had been passed over to the plaintiff to secure a pre-existing debt due from them to the plaintiff, without any consideration passing between the parties, or forbearance by plaintiff to sue binding for any definite time; and that he had the same right to defend against the note in suit, as if it had been brought by Phinney & Jackson standing in the place of the payees.</p> <p>There was a. verdict for the plaintiff. The defendant excepted to the instructions of the presiding justice to the jury, as appears in the opinion of the court.</p> <p>The motion for a new trial was not pressed for consideration.</p> <p>The court instructed the jury in substance that such forbearance would constitute the plaintiff a bona fide holder for value, and this instruction is sustained, rve think, by autho itios generally, except perhaps New York, including our own state.</p> <p>The great preponderance of authority goes much further and holds that the taking of collateral security for a pre-existing debt, even without any existing agreement for forbearance and extension, makes one a holder for value so as to shut out existing equities. That is the view of the supreme court of the United States, of the highest courts in England, and of most of the state courts, including Massachusetts, New Hampshire, Rhode Island, Vermont, New Jersey, Maryland, Illinois, Michigan, Alabama, Texas, North Carolina, California, Louisiana, Towa and Georgia. Swift v. Tyson, 16 Pet. 1, 28; Alliance Bank v. Broom,, 2 Drew. & Sm. 289, cited by Clifford, J., in liy. Go. v. National Bank, 102 U. S. 48; Oates v. National Bank, 100 U. S. 239, 250 ; McCarty v. Boots, 21 flow. 432, affirming Swift v. Tyson; Quinn v. Hard, 43 Vt. 375; Bussell v. Splater, 47 Id. 273; Atkinson v. Brooks, 26 Id. 569 ; Fisher v. Fisher, 98 Mass. 303; Stoddard v. Kimball, 6 Cush. 469 ; Boberts v. Hall, 37 Conn. 205; Bank of Bepublic v. Carrington, 5 R. I. 515; Williams v. Little, 11 N. H. 66; Bowman v. Millison, 58 111. 36; Manning v. McClure, 36 Id. 490; Payne v. Bensley, 8 Cal. 260 ; Griovanovich v. Citizens Bank, 26 La. Ann. 15; Smith, v. Isaacs, 23 Id. 454; Allaire v. Hartshorne, 21 N. J. L. 665; Armour v. McMichael, 36 Id. 92; Maitland v. Citizens’ Bank, 40 Md. 540; Bobinson v. Lair, 31 Iowa, 9; Bonaud v. Grenesi, 42 Ga. 639; Bigelow, Bills and Notes, 502, et seq; 1 Daniel Neg. Ins. (2d edition), c. 25, §§ 820 — 833. Story, Prom. Notes, §§ 186, 195, (Thorndyke’s ed.) 1, Parsons, Notes and Bills, (2d ed.) 218, § 4, c. 6; Red. and Bigelow’s L. C. Notes and Bills.</p> <p>Brmihall y. Beckett, 31 Maine, 205, approved in Nutter v. Stover, 48 Maine, 163,169, was decided in 1850, and the doctrine of that case is hardly in harmony with the commercial wants and usages of to-day. The needs of commerce and the extension of the credit and circulation of negotiable paper have led to the expansion of the early doctrine, so that, as above indicated, a great preponderance of authority is in favor of the position that the transfer of negotiable securities as collateral for a pre-existingdebt constitutes a valuable consideration, so as to shut out equities between antecedent parties of winch the holder has no notice.</p> <p>In view of all these authorities and the importance of the principle involved, we think we should be justified, were it necessary, in asking this court to expand the principle enunciated in Bramhall v. Beckett, so as to accord with the prevailing commercial authorities of the world. But iii point of fact and so far as the purposes of this case are concerned, that case standing alone would, we claim, sustain the rulings given at the trial.</p> <p>The true test to determine whether a note is subject to an equity set up by the maker is this : Could the payee, at the time he transferred the note, have maintained suit upon it against the maker, if it had then been mature. Story, Prom. Notes,'§ 178.</p> <p>The law in this state is well settled that the holder of negotiable-paper, who takes it as collateral security for a pre-existingdebt, “without parting- with any rights, extending any forbearances, or giving any other consideration,” cannot be regarded as the holder for a valuable consideration, and is not entitled to protection against the equities of the accommodation maker, acceptor or indorser. Bramhall v. Beckett, 31 Maine, 205, approved in Nutter v. Stover, 48 Maine, 169, and has never since been doubted in Maine.</p> <p>The same doctrine is held in New York. Bay v. Ooddington, 5 Johns. Ch. R. 54; Ooddington v. Bay, 20 Johus. 637, never overruled in that state, but repeatedly affirmed. Stalker y. McDonald, 6 Hill, 93 ; Cfroeers’ Bank y. Penfield, 69 N. Y. 502, 505; Stevens y. Brennan, 79 N. Y. 254, 258.</p> <p>In New Hampshire, the same doctrine is held. Jenness y. Necro, 10 N. H. 266; Williams v. Little, 11 N. H. 66 ; Fletcher y. (Phase, 16 N. IT. 38; Rice v. Ncrifi, 17 N. H. 116.</p> <p>So held in Alabama. Fenouille y. Hamilton, 35 Ala. 319; (7cm-nerly v. iw¡. (To., 66 Ala. 432.</p> <p>In Iowa. Davis y. Strohne, 17 Iowa, 421.</p> <p>In Arkansas. Bertrand y. Barkman, 13 Ark. 150.</p> <p>In Mississippi. Brooks y. Whitson, 7 S. & M. 513.</p> <p>In N. Carolina. Reddick y. Jones, 6 Ired. 107.</p> <p>In Ohio. Roxborough y. Messick, 6 Ohio St. 448.</p> <p>In Pennsylvania. Ashton’s appeal, 73 Pa. Stat. 153.</p> <p>In Tennessee. Wormley y. Lowry, 1 Humph. 468.</p> <p>In Virginia. Prentice v. Zw, 2 Graft. 262.</p> <p>In Wisconsin. Bowman y. Fcm Muren, 29 Wis. 209.</p> <p>In Kentucky. Breckenridge v. Moore, 3 B. Mon. 629.</p> <p>In Minnesota. 1 Minn. 311, 312.</p> <p>Mere forbearance is not sufficient consideration. To be such there must be an agreement to forbear, a binding agreement, upon which an action could be brought if violated, or which could be enforced by injunction or used in defense. Stalker v. McDonald, 6 Hill, 93,114; 1, Pars. Con. pp. 440 to 444; 1 Addison, Con. § 14; Chitty, Con. 35, 531; Berry v. Pullen, 69 Maine, 101, 103.</p>

Exceptions, on facts agreed. Action of assumpsit,, on account annexed. The case was referred to the court, the right to except being reserved; and it ruled that the plaintiff was entitled to judgment for three hundred and twenty-seven dollars with interest from January 1,1886. Defendants excepted to the ruling. The agreed statement of facts is as follows:— “This is an action for the recovery of an amount voted by the town to be paid to the plaintiff and interest on same.

On report. Bill iu equity, heard on bill, ans-wer and proofs. The plaintiffs allege in their bill that they are owners of several parcels of land, having a water front of nearly twelve miles, and bounded on Megunticook and Long ponds, in Camden and Lincolnville; also an island in Megunticook pond containing fifteen acres.

On exceptions. Assumpsit upon account annexed for the sale and delivery of fruit trees. The action was commenced in the municipal court for the city of Bangor, where judgment was given to the defendant, upon the general issue, and the plaintiff appealed. After the appeal was entered, the plaintiff had leave to amend his declaration, by adding two special counts.

<p>On exceptions.</p> <p>Action for'damages caused by a defect in the highway, in Norridgwock, sustained August 26, 1885. On the second day of September following, the plaintiff sent to the municipal officers of the defendant town, the following written notice, which was seasonably received by them.</p> <p>“Starks, Sept. 2d, 1885.</p> <p>“ Grents: — In consequence of a defect in the highways in your town, I was hove from my carriage about one week ago, and got a severe injury, breaking one rib and injuring another, besides injuring my shoulder. I demand something in the shape of damage. I do not wish to be hard with you, and trust you will be willing to do the honest thing with me, without going into litigation. Hoping to hear from you soon, I am,</p> <p>Yours truly, S. D. Greenleae.”</p> <p>The presiding justice ruled that said notice was fatally defective, and for that reason ordered a nonsuit, to which the plaintiff excepted. If said notice is so defective that the action can not be maintained, the nonsuit is to stand; otherwise it is to be taken off and the action to stand for trial.</p> <p>Notice sufficient, not misleading, and should be liberally construed. Lowe v. Clinton, 133 Mass. 526, 528, and cases cited; Dalton v. Salem, 136 id. 278; Fortin v. Fasthampton, 145 Mass. 196, and cases cited. Says Holmes, J., in this case, “it is hard to suppose that the statute intends to cover a misstatement of the case, which on the face of tiro thing, is more likely to mislead than no statement at all; and yet to allow a simple omission to remain fatal.”</p> <p>Proper notice condition precedent. R. S., 1871, c. 18, § 65; Public Laws, 1874, c. 215; 1876, c. 97; 1877, c. 206; 1879, c. 156 ; R. S., 1883, e. 18, § 80; Feazie v. Rockland, 68 Maine, 511 ; Low v. Windham, 75 Maine, 113, and cases cited; Chapman v. Nobleboro, 76 Maine, 427, 430, 431 ; Blackington v. JiocMand, 66 Maine, 332, 334.</p> <p>Notice fails to state the location or nature of the defect. Sufficiency of notice, question of law. Chapman v. Nobleboro, supra; Rogers v. Shirley, 74 Maine, 144-151. Pacts cannot be added to exceptions by argument. Aliens. Lawrence, 64 Maine, 175,176. Object of the notice is that the precise place where injury was received, may be ascertained, &c. Larkin v. Boston, 128 Mass. 521, 523; Hubbard v. Fayette, 70 Maine, 121, 124. Cases in Massachusetts cited by plaintiff relate to informal notices, and not to notices omitting facts called for by the statute.</p> <p>Counsel argued that there is a liability at common law, on the part of defendants, eo-extensive with the right of eminent domain to take private property for highways, and its duty to keep them in repair', citing: 2 Dill. Mun. Corp. § 789 ; City of Buffalo v. Halh'way, 7 N. Y. 493, (57 Am. Dec. 550;) Rapho v. Moore, 68 Pa. St. 404. If not in harmony with the doctrine of Maine and Massachusetts courts, plaintiff is entitled to a liberal construction of statute, in view of recent legislative restrictions of his rights. Noticeis explicit as in Lyman y. Hampshire, 138 Mass. 74. Sufficient if it he of aid to the officers making the investigation; or such as naturally leads them to make the proper investigation. Spellman v. Chicopee, 131 Mass. 443.</p> <p>In the case at bar, the plaintiff can show by an abundance of evidence outside of the letter sent, that the municipal officers knew all about the locality and defect immediately after the accident, that verbal notice was immediately sent to them, and I think they did investigate and caused the defect to be repaired the same day of the accident.</p> <p>If plaintiff can show that, why this needless formality of reducing to writing what they already knew ?</p> <p>We claim that the fact of knowledge of the place of injury, &c., should have been submitted to the jury in connection with the letter.</p> <p>Counsel argued further that if there is no remedy at common law, plaintiff may recover without giving the statute notice. The statute is merely directory and is not made a condition of the plaintiff's right of recovery.</p> <p>There is no forfeiture of his right of action if the injured party fails to give the notice specified within fourteen days.</p> <p>The statute is absolute that the injured party may recover if the town had notice of the defect, and if the plaintiff, knowing the defect to exist, had previously communicated the fact to the municipal officers; and there the conditions of the right to recover cease; and the right to recover depends upon no other condition.</p> <p>The words of the statute following, are merely directory, and a non-compliance does not debar the plaintiff of his right of action. Statute should be liberally construed. Tracy v. JR. JR. Co., 38 N. Y. Ct. of Appeal, 433; JPerley v. Jewell, 26 Maine, 101.</p>

On report, from the superior court, for Cumberland county. This was an action of assumpsit to recover a balance of account claimed to be due for grain. The defendants are husband and wife. The husband was defaulted. The wife defended and pleaded the general issue. ' The facts in issue appear in the opinion. A. F. Moulton, for defendant, cited: R. S., c. 61, § 4; Yates v. Purvey, 65 Maine, 221; Rollins v. Qroclcer, 62 Maine, 244; Ferguson v. Spear, 65 Maine, 277.

<p>Ways. Defect, in Highway. Notice. II. 8., c. 18, § 80.</p> <p>A notice under R. S., c. 18, § 80, setting forth a claim for damages, and specifying the nature of injuries received, described the nature of the defect in the highway as' “a large snow drift left in the road;” and its location, “by the house of H. E. Whitehouse.” Held, sufficient.</p>

On exceptions. This was an action of debt upon a judgment, recovered in this court, in Knox county.- Plea, nul tiel record,. The plaintiff offered in evidence a duly authenticated transcript from the records of this court, for Knox county, made, as he claimed, in accordance with R. S., c. 79, § 11, and to which the defendant seasonably objected, because it was not a sufficient record of the judgment declared on. The transcript is as follows: State oe Maine. Knox, ss.

On REPORT. Bill in equity by the executor of the will of Peter W. Morrell, of Portland, for its construction by the court under the proyisions of P. S., c. 77, § 6, par. 7, and for its instructions as to the manner of administering the trnst expressed therein; also a question of investment.

<p> Equity. Mortgage. Assignment. Discharge. Cloud on Title. Promissory Note. Co-promisors. </p> <p>The plaintiff attached and sold on exception lands of his debtor, whose grantor as appeared by record in the registry of deeds had previously mortgaged, but were discharged by the assignee of the mortgage. Afterwards the assignee assigned to the defendants the mortgage which had been given by the debtor to secure a note made by him and the defendants. There was no evidence to show the debtor and the defendants bore any other relation to each other than that of co-promisors. Upon a bill in equity by the plaintiff, charging the defendants with attempting to set up tlxoir title under the assignment against him, and praying the court to decree the mortgage paid and satisfied and to enjoin the defendants against enforcing it:</p> <p>Held, that the discharge by the assignee was a good discharge and satisfaction of the mortgage, as between the parties to the bill; and that it was not competent for the defendants to show that the mortgage note had been sold to them, by the assignee prior to the discharge.</p> <p>Held, a.lso, that in the absence of evidence showing that the mortgage note, as between the parties, was the note of the mortgagor and that it belonged to him alone to pay it, the defendants must be treated as co-promisors, and each bound to pay one-third. The defendants in their answer having admitted that their co-promisor had paid more than his part of the note. they cannot be permitted to buy the note of the assignee, take an assignment of the mortgage and enforce it against the mortgagor, their co-promisor, or his grantee.</p> <p>The plaintiff having amended his bill by alleging that he is in possession of the lands, was held entitled to a decree in his favor.</p>

<p>On exceptions, by plaintiff to the ruling of the superior court for Kennebec county in the taxation of costs.</p> <p>This was an action of debt to recover the penalty named in § 50, c. 80, R. S., for serving civil process without first giving bond as required therein.</p> <p>By consent of parties the jury were allowed to fix the amount of the penalty.</p> <p>The ad-damnum stated in the writ was one hundred dollars, and in the declaration the plaintiff claimed to recover the forfeiture in such case made and provided, but the plaintiff’s counsel in his argument to the jury claimed the minimum amount of the forfeiture.</p> <p>The verdict was against the defendant, and the jury fixed the penalty at twenty dollars. The day of the rendition of the verdict was February 13, 1889, and on February 17, during the term, and before judgment in said action the plaintiff filed an application to the court under § 136, c. 82, R. S., for the taxation of costs to be alloAved him.</p> <p>The court ruled that the plaintiff was entitled to only one-fourth of the amount of the penalty fixed by the jury, as costs.</p> <p>This belongs to a class of cases where the minimum penalty only, could by any possibility, give a trial justice jurisdiction. The forfeiture, by the terms of the statute, is a variable amount. It may be twenty dollars, it may be fifty dollars, or it may be any sum between these limits. The penalty is in the nature of a fine. Technically there are no damages. The unlawful act which this defendant was found by the jury to have committed, did no damage, strictly speaking, to any individual. The statute gives to any person the right to sue for the penalty. The action is known to the law as a “popular” action. 5 Wait’s Actions and Defences, 156. The public havfe an interest in such cases. They have a right to have the full amount of the penalty assessed, if such a fine would be commensurate with the act complained of, and having that right, no individual, by bringing the action before a trial justice, can deprive them of it. This action is given as a matter of public policy. Shall then, an individual, by bringing the action in a court which has no power to award judgment for anything more than the minimum fine, be allowed to defeat in part the very object of the statute ? And will this court say that an action of this sort, because the verdict is only twenty dollars, should have been brought before a trial justice ?</p> <p>By statute 18 Eliz. c. 5, § 3, no informer or plaintiff in any popular action shall compound or agree with the offender without the order or consent of the court in which the suit shall be pending. 5 Wait’s Actions and Defences, 165. It is believed that this statute is a part of our law, and we submit that it contemplates that the action should be brought in a court competent to make any order respecting it, even to the imposition of the highest forfeiture given.</p> <p>In these cases the prosecutor stands in the place of the state. Is there any doubt that if this prosecution had been by the state, by “suit, indictment or information” under § 94, c. 81, full costs would have followed the imposition of the minimum penalty ? Take the case of the penalty for kindling fires and the spreading of the same under § 15 of c. 26, — not less than ten or more than five hundred dollars. This may be recovered by any prosecutor, half to his own use and half to the town. Will the court hold that an individual can deprive the public of the salutary influence of the imposition of a fine commensurate with an offense contemplated by this statute, by bringing an aetkm in a court whose limited jurisdiction renders it unable to impose what might be deemed a decently adequate punishment?</p> <p>I do not find any case which appears to me to be decisive of the case at bar. Carroll v. Richardson, 9 Mass. 329, is an authority for bringing an action where the penalty is from two to fifty dollars, before a justice of the peace; but the decision in that case, that the plaintiff could, by alleging his damages at twenty dollars, bring his action before a justice of the peace, went upon the ground that the whole penalty was given by the statute to the corporation suing, by name, and that they, if they saw fit, might legally demand the smallest penalty, and the court say, “Had the forfeiture been wholly to the public, or part to the plaintiff and part to the public, or to a county, town, &c., the objection” (that it should have been brought before a court competent to give judgment for the highest sum) “would have great weight.” In the case at bar, the penalty was not given to the plaintiff by name. It accrued to any person who might sue. It was wholly a public matter, and should have been, as it was, brought in a court competent to render judgment for the highest amount. Soulton v. Martin, 50 Maine, 366, is no authority in this case. There the penalty Avas given to the toAvn. No other corporation, no person could sue. The town was the only party competent to sue ; it was not a “popular” action; the town could compromise the matter in any way they saw fit, and in that case it was very properly held that costs should be restricted. Further, the penalties in the class of cases to which Carroll v. Richardson, and Soulton v. Martin, belong, are more of the nature of damages than of fines, but in the case at bar the penalty is purely a fine and should be brought where the full amount might be avvarded.</p> <p>R. S., c. 82, § 120, provides that when it shall appear on rendition of judgment that the action should have been brought before a trial justice, the plaintiff recovers but one-fourth of his judgment as costs.</p> <p>The judgment in this case, if it had been entered on the day the plaintiff filed his application for the taxation of costs, would have exceeded twenty dollars, and it was through no fault of the plaintiff, that judgment was not entered immediately after verdict. He has interposed no motion to prevent the entering of judgment. The interest, which under § 34 of c. 82, shall be added to the verdict mates the judgment to be entered something more than twenty dollars. In Boothbay v. Wiscasset, the plaintiff appealed from a judgment of the court of common pleas and obtained a verdict of less than one hundred dollars in the supreme judicial court. The defendant interposed a motion for a new trial and the judgment was thereby delayed until the verdict, with interest exceeded one hundred dollars, and it was held that the plaintiff was entitled to full costs. Stat. 1822, c. 193, § 4. Boothbay v. Wiscasset, 3 Maine, 354.</p> <p>In Lawrence v. Ford, 44 Maine, 429, Judge May says, “Whether an action ought to be so brought'’ (that is brought originally before a justice of the peace.) “is ordinarily to be determined by the amount of the judgment,” and Chief Justice Whitman in his opinion in Forbes v. Bethel, 28 Maine, 204, says, “It may be observed that it is not said, if the plaintiff shall recover no more than twenty dollars damages that he shall be restricted as to costs; but that, if it shall appear on the rendition of judgment, etc. This phraseology was used, doubtless, with an intention that the court should look into the case and see that the plaintiff when he commenced his action, could not have commenced it properly elsewhere than the supreme judicial court or a district court.”</p> <p>There is a class of cases of which Hervey v. Banys, 53 Maine, 514, is a type, holding that the accumulation of interest on verdicts is not to affect the question of costs. But these cases really go upon the ground that the interest accumulates through the fault of the plaintiff in interposing motions for new trials or exceptions, thus himself delaying judgment until the accumulation of interest and the verdict exceeds twenty dollars.</p> <p>In pursuance of these principles, the court have examined this class of cases and restricted costs because of the fault of the plaintiff in interposing delays.</p> <p>We submit that no such fault can be imputed to the plaintiff in the case at bar, and that the case is one (if c. 82, § 120, applies at all) where the amount of the judgment will be allowed to draw after it full costs.</p> <p>But when Forbes v. Bethel was decided the court stated that the statute allowing interest on verdicts was discretionary and intimated that if, as in another statute, the discretion were taken away and the duty made imperative, the plaintiff who obtained a verdict of twenty dollars and delayed judgment until an accumulation of interest would make the judgment to be entered more than that sum, would be entitled to full costs. And in that case' stress was laid on the fact that the plaintiff was at fault in causing delay of judgment and the court would not exercise its discretion to increase the judgment by the addition of interest, so as to give the plaintiff full costs. The law now makes the addition of interest imperative, the word “may” being left out of the revision of 1857 and the word “shall” being inserted in the last.</p> <p>There is no authority in the statute for assuming that the verdict settles the costs, or that it is to be the controlling factor. On rendition of judgment the court is to examine the case, and if on the whole case it appears that it should, not might, have been brought before a trial justice, quarter costs only are to be awarded.</p> <p>The legislature in fixing the penalty to be assessed in this action at from twenty to fifty dollars must have intended that actions of this sort should be brought before a superior court.</p> <p>It is hardly possible to think that they intended to give one court jurisdiction to award the minimum penalty only, and another jurisdiction to award a thousand different penalties.</p> <p>Counsel cited: R. S., c. 82, § 120; Boulton v. Martin, 50 Maine, 336; Forbes v. Bethel, 28 Id. 204; Bawson v. New Sharon, 43 Id. 318; Boston v. York, 1 Id. 406; Brewer v. Curtis, 12 Id. 51; Foster v. Ordway, 26 Id. 322; Lawrence v. Ford, 44 Id. 427; Hervey v. Bangs, 53 Id. 514; Burnham v. Boss, 47 Id. 460.</p> <p>Case not within the exceptions of the statute, plaintiff restricted to quarter costs. Ladd v. Jacobs, 64 Maine, 347; Carrolls. Bichardson, 9 Mass. 329; Badlavi v. Field, 7 Met. 271; Blanchard v. Fitchburg B. B. Co., 8 Cush. 280.</p>

On report. Bill in equity for an injunction against the defendants to restrain the issue of shares in a new railroad corporation; also for a decree that certain interest coupons of the original railroad have been cancelled and surrendered; and that the city of Portland be estopped from denying that such coupons have been so cancelled and surrendered. The legal grounds on which the plaintiffs sought relief are indicated in the following portions of their bill.

<p>On motion, by defendants to set aside the verdict as against law and evidence, and because of excessive damages.</p> <p>This was an action on the case for the loss of the plaintiff’s right band, and other injuries while driving over a crossing of the Maine Central Railroad, on Pearl street, in Bath, August 20, 1888.</p> <p>The jury rendered a verdict for tbe plaintiff for $7,500.</p> <p>On tbe morning of the accident the plaintiff starts from a point 134 feet west of the crossing. The crossing is a dangerous one. The road to it leads down a steep hill with the crossing at the foot. All view of the track from his starting point, and clear down to a point quite near the crossing is wholly cut off and he knows it. It has no gate or flagman and he knows it. Prom the nature of the ground, unless the traveler is watchful, a train, especially if coming from Bath, may start out upon him at any moment from behind the bank and mangle or kill him. He starts at train time, and he knows when be starts, that at that very moment, a regular train is about due at tbe crossing and will, come from Batli, — not towards it. Tbe clatter of bis butcher cart down tbe bill will inevitably deaden and perhaps drown tbe sound of an approaching train, while tbe thick canvass cover peculiar to a butcher’s cart, under and inside which he sits, will additionally obscure his view, and perhaps its flapping may still further dull the sound.</p> <p>All this he knows, for he has passed over this same crossing with the same cart from 175 to 350 times in the six months immediately preceding the accident; but he also knows that about 53 feet west of the crossing he can begin to get a view south of the crossing, and that, from a point some distance west of the crossing and continuously from there to the crossing itself there is an unobstructed view of the whole track for half a mile in the direction of the expected train, and that by stopping the speed and noise of his cart anywhere beyond that point, and either looking or listening he must both see and hear any train near enough to be dangerous; or that even by looking without stopping, if he were at prudent speed, he would still have ample time and space to stop his manageable horse short of the fatal rails.</p> <p>In such cases and in such surroundings we say:</p> <p>1st. That the plaintiff is charged as matter of law with certain fixed and sharply defined duties.</p> <p>2d. That if the whole evidence shows plainly that the plaintiff neglected those duties, or omitted to perform them, then, as matter of law, he cannot recover, and no verdict in his favor can stand.</p> <p>When, as here, all sight of the track and train is cut off till one gets close to the crossing, it is especially the duty of the plaintiff to listen, and listen attentively so that he may discover the train by its noise. Cut off, like a blind man, from his sense of sight, he must give peculiar heed to bring his sense of hearing into full play.</p> <p>To do this he must: 1st. Be a conscious, and not a merely mechanical, listener. He must have a listening mind as well as ear.</p> <p>2d. He must listen at a proper place, sufficiently unobstructed and near the crossing so that he will be sure to hear a train, if it is within limits of possible danger.</p> <p>3d. When he has reached such proper place, he must give himself full physical opportunity to hear, by freeing himself from every obstacle within his own control which might prevent or deceive his hearing. If his hearing is muffled by being inside a covered butcher’s cart, he must get his head outside where he can hear. Lest all other precautions fail, and lest, with all possible care, the train should still start out upon him unexpectedly, if the approach to the crossing is down a sharp grade, making it more difficult to stop suddenly, he should approach at such a slow and cautious speed as will enable him to hear readily, and stop instantly, if a train is suddenly detected.</p> <p>If the clattering of his butcher’s cart with its arched skeleton frame, and its flapping canvass cover, moving down the 'sharp hill at a trot, which, unchecked, as it was, naturally grew faster as it neared the bottom, and which at the crossing, had become, as the Ward boy describes it “quite fast” — if all this, made his hearing of the train uncertain, or perhaps impossible, then it was his imperative duty to stop his team at suitable distance in order that he might hear.</p> <p>The plaintiff was 134 feet from the crossing. He had not then got into his cart If we assume that his listening, the mounting of himself and his companion, the turning and starting of his team all occupied a minute, and that the train was moving at the average rate claimed by his own witnesses, twelve miles an hour, in that minute the train would travel over 1000 feet; and if his ‘horse went at six miles an hour, and the train at twelve miles, the train would go 268 feet while he went 134 feet to the crossing so that at the moment of his listening the train must have been about 1300 feet or one-quarter of a mile south of the crossing, and therefore, taking the hypothenuse, more than one-quarter of a mile distant from the listener; and no man can, with decent prudence, trust such an obstructed hearing of a train so remote, when, by a moment’s attention at nearer and unobstructed points, he may secure himself against any possible danger.</p> <p>To sum up this point: That the plaintiff could really listen for the train all the way to the crossing and yet not hear it, is impossible, andón direct examination his counsel does not permit him to claim it.</p> <p>If, listening, he heard the train, then he was criminally reckless in attempting to cross in front of it.</p> <p>If, though listening, he neither stopped nor checked his speed and thus by his own act prevented himself from hearing, this is contributory negligence as matter of law.</p> <p>If, as is most probable, after listening before he mounted his cart, 184 feet from the crossing, he listened no more but dismissed the train from his thoughts, and with unheeding mind drove upon the crossing, hearing and seeing nothing till he was on the track itself, such unthinkingness and neglect would equally and as matter of law, defeat his action.</p> <p>But it is the duty of the. plaintiff to use his eyes as well as his ears. It is not enough to keep one sense open while he shuts the, other. Intervening objects may deaden sound and so deceive the ear. Deep cuts may obscure the approach. The noise of one’s own vehicle, if one refuses to still it by stopping, may drown the remote sound. Under some conditions, a single car or locomotive, even a train may steal on the traveler almost noiselessly, but the healthy eye, where a point is reached where it can sweep the track, makes its report to the brain unerringly. A man with good eyes cannot deliberately shut them and trust to his ears alone. If he does, when there is a point whence he might have seen had he looked, and seeing might have escaped, he cannot recover. If there was such a point in this case, from which the plaintiff could see the whole track, and if he knew its existence and that it was near the crossing, though he did not know or remember its precise location, it was his duty as matter of law: 1st. To watch for it. 2d. To look when he got to it, or so seasonably after that if he saw a train, he could stop in time to avert a collision. 3d. To look when he was expecting a train in the direction of the expected and not away from it. 4th. To clear his vision from any obstacle within his own control (as his own wagon cover) which might prevent his seasonable seeing. 5th. To approach the observation point at such a prudent and cautious speed that he could stop in time to avoid danger, if his eyes revealed it.</p> <p>Upon this point the charge of the presiding judge is clear, emphatic and unmistakable, and the verdict is in plain disregard of the charge. Judge Libbey charged:</p> <p>“Did he listen carefully at the point where he says he listened? If lie did and did not hear, does that satisfy you that it was not a proper point at which he could listen and in compliance with his legal duty? If he could not hear at that point, then, it was his duty to look, and look as soon as he got at a point where he could see. Did he do so ? He tells you that he first looked up the track, towards Brunswick and saw nothing, and then turned and looked down and saw the train immediately upon him. And that, he tells you was when he was very near, if not upon, the railroad track, so that his team was struck by the locomotive immediately afterwards, having hardly time to think what to do between the sight of the approaching train rushing upon him and the collision.</p> <p>blow, the evidence is submitted to you, showing at what point’ he might have seen the approaching train before he readied the railroad track. Did he look at such point ? You must determine whether there is any evidence in the case that satisfies you he did do so. If he did not do so, then, under the rule of law that I have given you, and it is my duty to give you, he is not entitled to recover.”</p> <p>Each of these several duties is charged on the plaintiff, as matter of law, and neglect to perform any one of them, where that would have enabled him to avoid tiie collision, defeats his recovery as matter of law, and even after verdict. Such neglect is negligence per se, and not mere evidence of negligence. Such is the settled law of Maine. Chase v. It. B., 78 Maine, 353; Lasan v. B. It., 77 Maine, 85; Benner’s ease, State v. B. It., 77 Maine, 538; Pickard’s case, State v. B. B., 76 Maine, 357. Some of the latest cases in other states which have specifically affirmed this doctrine are: Va., It. B. v. Kelleris Adm’r, 3 S. E. Rep. 703 — 7 ; It. B. v. Hunter, 83 Ind. 335; It. B. v. Ileileman, 49 Pa. St. 60, quoted and approved by our court in 76 Maine, 366; It. B. v. Snyder, 24 Ohio St. 670-677; Artz v. It. B., 34 Iowa, 153 ; Same case, 88 Iowa, 293; Baxter v. It. It., 41 N. Y. 502; Gtaynon v. B. B., 100 Mass. 208.</p> <p>The traveler cannot be excused from his duty by the use of one sense alone. It is his duty both to look and to listen, and, if necessary, to stop in order to do both. Where he cannot or does not bear, he must look, whenever by looking, be could have seen the train.</p> <p>Where be cannot or does not see, be must listen and stop, if necessary, in order that be may bear. Micb., Mynning v. B. B., 31 N. W. Rep. 151; N. Y., Gcrippen v. B. B., 40 N. Y. 34; Iowa, Mosler v. B. B., 34 N. W. Rep. 853; Ind., Cones v. B. B., 16 N. E. Rep. 638; Miss., Tucker v. Duncan, 9 Fed. Rep. 867-72; Beach. Contrib. Neg. 863; N. Y., Salter v. B. B., 75 N. Y. 273; Oregon, Durbin v. By. Wav. Co., 17 Pac. Rep. 7, 8 and cases cited; 111., B. B. v. Grratzner, 46 111. 74, 85; N. J., Merkle v. B. B., 9 Atl. Rep. 680. All tbe Maine cases before cited speak to the same point. C. W. W. B. B. v. Grertsen, 15 Brad. (111.), 614. Tbe following late cases are specially close to tbe case at bar in their facts, and in all of them tbe court held as matter of law that tbe plaintiff could not recover. Iowa, Slater v. B. B., 32 N. W. Rep. 264; Va., B. B. v. Kellam's AdrnUr., 3 S. E. Rep. 703; Ind., Cones v. B. B., 16 N. E. Rep. 638; Micb., Freeman v. B. B., 41 N. W. Rep. 875; B. B. v. Flliott, 28 Ohio St. 340; B. B. v. Bathger, 32 Ohio St. 66; B. B. v. Beale, 73 Pa. St. 504; Wilds v. B. B., 29 N. Y. 315; Micb., Kwiotowski v. B. B., 38 N. W. Rep. 463.</p>

Facts agreed. The principal defendants, copartners in business at Milo, Piscataquis county, were adjudged insolvents, upon a petition in the name of the firm, Bailey & Parker, but signed by Parker only, and filed on the 12th day of August, 1887. A warrant was issued upon said petition without notice to Bailey of the pendency of the petition. Bailey has never appeared either by himself or attorney in any of the proceedings, and has never been cited to appear.

On exceptions and motion, to set aside the verdict by defendants. This was an action to recover for injuries which the plaintiff claimed his colt received October, 1887, in his pasture, by reason of want of repair of fence on the line of the railroad. It appeared that the fence was on the line of the Katahdin Iron Works Ry. and built by that company..

<p> Promise to marry. Pleadings. Damages. Evidence. </p> <p>In an action tor breach of promise to marry, the declaration containing only the necessary averments to sustain such an action, and recovery of general damages, evidence of the plaintiff’s seduction by the defendant under the alleged promise of marriage, and of her subsequent delivery of a bastard child, was held inadmissible upon the question of damages.</p> <p>Such evidence might have been admissible, as tending to show the plaintiff’s condition at the time of the breach of promise, under a claim for increased damages on that account; but such increased damages being consequential a special averment in the declaration for their recovery is required.</p> <p>Under such a declaration, evidence as to the effect upon plaintiff’s bodily health, so far as it was the result of the seduction and her pregnancy, was held to be more remote and objectionable.</p>

On MOTION. This was an action by a tenant to recover damages for personal injuries sustained through the negligence of the landlord in making repairs to the premises.

On REPORT. This was an action of assumpsit upon a joint and several note for $1,000, dated March 24, 1888, and signed by G. W. Russell, as principal, and by the defendant and one Jacob B. Holmes, as sureties.

Agreed .statement. This was an action of trover for a horse, valued, at one hundred and fifty dollars, and which the plaintiff delivered to the defendant April 8, 1887, and at the same time took from him the writing which is copied in the head note. Plaintiff offered to prove by parol testimony, if admissible, that the transaction was intended as a conditional sale.

On MOTION. By defendants, to set aside the verdict as against law and evidence. The action was to recover for services and expenses in driving defendants’ logs, in the spring of 188T, by virtue of an alleged contract with Thomas Mason, their agent. The defendants denied the agency.

<p>On REPORT.</p> <p>The facts are stated in the opinion. Tt was admitted that the plaintiffs had not made the demand, required by the statute, before bringing the action.</p> <p>I. The assessment is valid.</p> <p>Evidence was produced, and is admissible, to show intention to tax defendant by the words used. R. S., c. 6, § 142, and Bath v. Used, 78 Maine, 276, and cases there cited, especially Westhampton v. Searle, 127 Mass. 502, 504.</p> <p>As to the poll taxes, intention to tax husband rather than wife to bo presumed. Respecting those taxes, at least, addition of “and wife” an error which does not invalidate assessment. Same authorities.</p> <p>As to the personal property taxes, defendant was one of two intended to be taxed, and non-joinder of the other has not been pleaded in abatement. Error here, if any, probably due to defendant’s failure to return a list of his taxable property. This error, also, cured by E. S., c. 6, § 142.</p> <p>Defendant relies on Trott v. Lowell. If that case means more than, that assessment there considered, could not be upheld without evidence identifying defendants as parties intended to be taxed, it is overruled by later case of Bath v. Reed, above cited.</p> <p>Objection to highway fax that the surveyor’s list required by § 63, c. 18, R. S., could not be produced, cannot avail defendant. That tax was part of an assessment, admitted to be otherwise regular, and “is sustained by the ordinary presumption of correctness which attaches to the proceedings of officers in the performance of a public trust.” Snoio v. Weeks, 75 Maine, 105; Com. v. Bolkom, 3 Pick. 281.</p> <p>Even if the list had not been returned, defendant would have to pay the tax. Tlayford v. Belfast, 69 Maine, 63.</p> <p>II. The statute of limitations not a bar.</p> <p>The state is not barred by a statute of limitations, unless specially named. If this principle be admitted, its application to the collection of taxes cannot be denied. Towns and cities are the state’s taxing machinery. It is in their private capacity only, if at all, that statutes of limitation run against them. Small v. Danville, 51 Maine, 859; Cape Elizabeth v. SkiUin, 79 Maine, 593 ; Lindsey v. Miller, 6 Pet. 666 ; Logan Co. v. Lincoln, 81 111. 156; Berry Co. v. Railroad, 58 Ala. 547.</p> <p>Assessment of tax against Blondell and wife cannot be upheld. Trott v. Lowell, 1 East. Rep. 398. Same as to deficient highway-tax of 1879, no return being shown. Patterson v. Creighton, 42 Maine, 367; Hayford v. Belfast, 69 Id. 63.</p> <p>Suit for all the taxes except the years 1882 and 1883, barred by R. S., c. 81, § 82, clause 1. Nullum tempus act applies only to the state at large.</p> <p>Cinn. v. First Presb. Church, 8 Ohio, 298, (32 Am. Dec. 718), (1835); Cinn. v. Fvans, 5 Ohio St. 595, (1855) ; St. Charles County v. Powell, 22 Mo. 525, (66 Am. Dec. 637); Callaway County v. Nolley, 31 Mo. 393; Abernethy v. Dennis, 49 Mo. 469; School Directors v. Greorges, 50 Mo. 194; City of Pella v. Scholte, 24 Iowa 283, (1868), S. C., 95 Am. Dec. 740, and note, cases there cited; Clements v. Anderson, 46 Miss. 581: Fvans v. Frie County, 66 Penn. 222; R. S., c. 6, § 101.</p>

On exceptions. The respondent filed a general demurrer to the indictment, which was joined by attorney for the state. The presiding justice overruled tbo demurrer and adjudged the indictment sufficient. To this ruling the respondent excepted.

On REPORT. This was an action brought by the plaintiff, as surviving partner of the firm, Samuel Otis & Co., to recover the consideration paid, and interest thereon, by said firm to the defendant for three overdue town orders, and which were afterwards adjudged by this court to be void. Otis v. Stockton, 76 Maine, 506. The orders were indorsed by the defendant.

Agreed statement. It appeared that, at the time the plaintiffs were adjudged insolvents, .they were the sole owners in their co-partnership capacity of a pair of oxen; that they were the owners of no other oxen, either as co-partners or as individuals; and that they subsequently replevied them from their assignee, the defendant, to whom the oxen had been delivered by the messenger of the court of insolvency.

<p>On exceptions.</p> <p>The defendant excepted to the ruling of the court sustaining a demurrer to the following plea in abatement:—</p> <p>Knox, ss.</p> <p>Sup. Jud. Court, March Term, a. d. 1889.</p> <p>Thomas B. Brastow et ais. v. George B. M. Barrett.</p> <p>New entry. Writ dated December 6, 1888.</p> <p>And the said defendant comes and defends &c., when &c., and saith that he ought not to be held to answer to the above writ and declaration of the plaintiffs against him but that the said writ ought to abate, because he says that at the time of the purchase of said writ and of the plaintiffs declaring therein, to wit: on the twenty-seventh day of November, A. D. 1888", the said plaintiffs purchased one other writ of that date returnable to the December term of said Sup. Jud. court, in and for said Knox county, and declared therein against the said defendant in a certain plea of land for the same cause of action in the writ and declaration aforesaid first mentioned, as by the files and record thereof, in this court remaining, appears.</p> <p>And the said Thomas E. Brastow, Wilson A. Merriam and Edwin A. Morrill named as plaintiffs in both actions aforesaid, and the said George H. M. Barrett, named in both actions aforesaid as defendant, are the same persons and not others or divers; and the said plea of land is now pending in this court under docket No. 264 and yet remains undetermined. All of which the said defendant is ready to verify.</p> <p>Wherefore, he prays judgment of the said writ, and that the same may be quashed.</p> <p>Plea sets out date of former writ, names of the parties, term of court to which writ is returnable, the plea, the docket number, and so much of the record cited in the plea as constitutes a sufficient setting out of the record or process.</p>

<p>On report.</p> <p>This was an action on the case for the diversion and appropriation of water from the plaintiffs’ saw mill.</p> <p>(Declaration.)</p> <p>In a plea of the case; for that whereas the said plaintiffs on the twenty-eighth day of February, A. D. 1868, and ever since that time have been and still are seized in their demesne as of fee of a saw mill and privilege and its appurtenances together with the exclusive right of water except what was needed to carry “a shingle mill, then used upon said privilege, or other equal machinery,” situated on the lower dam at North Paris, and had the right of use of said water for said saw mill and the sole right and privilege of serving the inhabitants of said North Paris in sarving their lumber and for using said' water for any and all purposes, subject only to the limitation aforesaid, for their own profit and income, till the plaintiffs were disturbed and hindered therein by said defendant, and they ought now to hold said mill with the privileges aforesaid freely and undisturbed. Yet the said defendant in no wise ignorant of the premises, but intending and contriving maliciously, to disturb the plaintiffs, and to deprive them of the income, profit and benefit of their said mill, with the privileges and appurtenances aforesaid, did on the first day of March, 1884, put into said shingle mill building, then standing upon said dam, a circular board saw, a planing machine, a threshing machine, and a tub-machine, and from said time has continued to operate said machinery and to draw the water of said plaintiffs and to saw and manufacture, without right or license, all kinds of lumber which of right belonged to said plaintiffs to do, and which their said mill could and otherwise would have done but for the aforesaid wrongful acts of said defendant, and by which the mill of said plaintiffs has been greatly injured; and for all that time they have been deprived of the profits and income of said mill, wbicli they ought and otherwise would have had, and that their said mill- and privilege and appurtenances have become of little or no value to said plaintiffs.</p> <p>Whereby an action hath accrued to them to have and recover of said defendant, the damages occasioned as aforesaid by him, and which they say is the sum of * * *</p> <p>The facts are stated in the opinion.</p> <p>Any change, either in the wheel or machinery, which increases the use or consumption of the water, is an infringement upon plaintiffs’ rights. Defendant liable if no actual damage sustained. Butman v. Hussey, 12 Maine, 407; Munroe v. Stielmey, 48 Id. 462; Hatch v. Dwiyht, 17 Mass. 289. An infringement, which by repetition might ripen into an easement, is a sufficient cause of action. Angelí, Water Courses, § 150, and cases cited. The limitation upon the water power, retained by the defendant’s grantors, is fixed, by the deed, in two ways: First, by the amount of water necessary in driving the wheel then used, or its equal; second, by what water was then required for the shingle mill, or what machinery was then in the shingle mill, or “other equal machinery.”</p> <p>Upon the construction of the deed, counsel cited: Blake v. 'Madigan, 65 Maine, 522, 529, 530; Davis v. Muncey, 38 Id. 90, 93, 94; G-arland v. Hodsdon, 46 Id. 511; Hines v. Robinson, 57 Id. 324; Wyman v. Farrar, 35 Id. 64, 71; Ashley v. Pease, 18 Pick. 268; Tourtellot v. Phelps, 4 Gray, 370.</p> <p>The term “shingle mill” had reference to the whole building and machinery, and not to the shingle machine. The words “or other equal machinery” carry the right to use all water necessary to carry the mill, and the reference to the mill, indicates simply the quantity of water power tó Be conveyed, or-rather t‘o be retained. One building was called a-s’aw mill, the other a shingle mill; and the last named was to have the first right totthe Watery Defendant is not to be confined to the running of the old,fashioned shingle bolter then in use, or to the particular .¡machinery then in the mill, but had the right •to run any'kind'"of” machinery: which did not consume any more water. “Other equal machim ery” means the right to run 'a board'saw or any other machinery , which does not require any greater'amount of water than .the .old-wooden center-vent wheel consumed. With modern turbine improved wheels better results' are accomplished, with more power and less consumption of water. Defendant had the right to an equal amount of water that the old wheel would vent; to run as much machinery as could be run by means of improved wheels which would not consume any more water.</p> <p>Damages: Plaintiffs can only recover from the time they re-purchased of Ellingwood, because if there was any right of action prior to that time it was in the mortgagor and not in plaintiffs. Hatch v. Dwight, 17 Mass. 289, 298.</p> <p>If defendant has used any more water than he had the right to do, plaintiffs’ mill was not affected thereby, and at the most only nominal damages can be awarded. Munroe v. Gates, 48 Maine, 468. Special damages must be alleged. Plimpton v. Gardiner, 64 Maine, 860.</p> <p>The plaintiffs do not complain or allege damages for a wrongful use of water, which has deprived them of their right to the water, but for usurpation of business. Under the plaintiffs’ declaration, we submit whether they can recover any damages; — those complained of not being recoverable, being too remote, contingent and indefinite to become an element of damages.</p>

On motion and exceptions. This was an action of trespass, containing two counts; the first for breaking and entering tbe plaintiff’s close on tbe sixth day of June, A. D. 1888, and liberating one moose and one deer; and tbe second for taking and carrying away, on tbe same day, such moose and deer. The plea was the general issue, with a brief statement justifying the taking and liberation of such moose and deer as a game warden.

<p>Towns. School districts. Alteration. Meeting. Warrant. Reconsideration of vote. Tax. Injunction. R. S., c. 3, § 7, c. 11, § 1. Special act, c. 377 o/1889.</p> <p>A constable made return upon a warrant for a town meeting, that he had “caused” an attested copy of the warrant to be posted, etc., instead of returning that he personally did it. Held, that the return was sufficient.</p> <p>The inhabitants of a town, “voted, by a major vote, to set off the inhabitants of school district No. 22, with their estates, and annex the same to school district No. 9, as recommended by the municipal officers and supervisor of schools.” Held, to be a sufficient comidiance with R. S., c. 11, § 1.</p> <p>A town may reconsider its action at the same meeting, or at a subsequent meeting, if seasonably done, provided it does not destroy or impair intervening rights.</p> <p>By R. S., c. 11, § 1, towns are forbidden to alter their school districts without the recommendation of the mrmicipal and school officers. In the absence of such recommendation attempted action to alter, by uniting or disuniting the districts, would be ultra vires.</p> <p>The legislature may divide towns into school districts as it pleases. Three school districts, in Farmington, had been legally annexed to a fourth by vote of the town. The town, afterwards, ineffectually voted to reconsider that vote. Held, that by the act of the legislature, c. 377, of 18S9, the vote to reconsider had become valid.</p>

On exceptions. The defendant excepted to the ruling of the court at nisi prius, in ordering full costs to be taxed for the plaintiff.

On motion and exceptions. This was an appeal from a trial justice’s court, for York county, in which judgment was rendered for the plaintiff in an action of assumpsit on account annexed. In that court the defendant relied on a tender. After verdict, in this court, in favor of the defendant, the plaintiff moved to set the verdict aside as against law and evidence and excepted to matters of law as appears in the opinion.

On report. This was an action of debt against the defendant corporation for the collection of unpaid taxes for the municipal year 1886-7. The list required by R. S., c. 46, § 80, to be filed by the clerk or treasurer, with the assessors on or before April 8, 1886, under oath, of all stockholders residing in Rockland, was hot presented until April 14, and does not appear to have been signed or sworn to.

On motion and exceptions. This was an action to recover for personal injuries received by the plaintiff, on Sunday, August 18, 1888, when she was thrown from a wagon while crossing the defendants5 track, in Burnham.

On exceptions. This was an action of trover for a horse taken by defendant from plaintiff’s possession January 12, 1887, at Kennebunk. Defendant, in support of his title, offered in evidence the instrument which appears in the head-note. This instrument was not recorded. The plaintiff seasonably objected to its admission for want of record, and that he had no knowledge of its existence. The presiding justice overruled the objection and admitted it.

On exceptions. The court having granted an amendment to the original bill (81 Maine, 158) the defendants excepted to its allowance. The grounds of the exceptions are stated in the opinion.

Agreed statement. This was an action of debt against the defendants as administrators de bonis non, with the will annexed, of Joseph Y. R. Coombs, of Yarmouth, deceased, to recover a legacy under his will, it being the proceeds of a life insurance policy. It was admitted that his estate, including both real and personal property, was solvent, and that no premiums had been paid on the policy during the three years next preceding the testator’s death.

<p>Probate. Appeal. Bond. Sureties. B. S., c. 68, § 24.</p> <p>Tlie right of appeal from the decision of the judge of probate is conditional, and such appeal can be prosecuted only upon complying with the requisites of the statute relating to sueli appeals.</p> <p>By R. S., c. 63, § 24, “the appellant shall file in the probate office his bond to the adverse party, or to the judge of probate, for the benefit of the adverse party, for such sum and with such sureties as the judge approves.</p> <p>A bond with only one surety is not such a bond as the law contemplates.</p>

<p>Intoxicating liquors. Indictment. Different statutes in force. Fifth Amendment to the constitution. Repeal of existing statute. Act of 1889, c. 140, constitutional.</p> <p>The fact, that the time covered by an indictment embraces a period when two different statutes were in force, is not fatal to the indictment.</p> <p>No repeal of existing laws in reference to the suppression of the sale of intoxicating liquors was intended by the adoption of the Fifth Amendment to the constitution, prohibiting the manufacture, sale and keeping for sale of intoxicating liquors.</p> <p>Nor is the law unconstitutional by reason of the severity of the penalty imposed by c. 140 of 1887.</p>

On exceptions. This was an action on the case, for diverting water from the plaintiffs.

On exceptions. This was an action of assumpsit, brought in the superior court for Aroostook county, against the defendant Luce alone.

In EQUITY. Bill in equity by the executrix of the will of George W. Morse, of .Union, deceased, to obtain the construction of the will and her duty in regard to her own share in the real and personal estate ; the shares of the surviving children of the testator; and from what property the debts of the estate shall be paid. The widow did not waive the provisions of the will. The case is stated in the opinion. Copy oe Will.

<p>On bepobt.</p> <p>The facts appear in the opinion.</p>

On exceptions. This was an action of dower, in which the jury returned a verdict for the plaintiff.

On report. This was an action to recover damages of the defendant, which the plaintiff claimed he had sustained by reason of a blast fired by the defendant in a granite quarry, of which the plaintiff gave the defendant no notice. The plaintiff was a stone cutter employed in the sheds and the defendant was a ledge man in charge of the blasting. The case is stated in the opinion. “Approaching” in the statute is not a word of limitation.

On eepoet. Bill in equity, with cross-bill, reported to the law court for hearing on bill, answers and testimony. The prayer of the bill was for an acounting by the defendants as trustees of the plaintiff ; — a decree to pay over all balances; — and for damages for their alleged mismanagement of the trust property. The case is fully stated in the opinion. Conduct and liabilities of trustees: 2 Pom.

On exceptions. This 'was' an action upon a joint note of the defendants, the only defense being interposed was that the female defendant at the time of signing the note was an infant, the wife of the other defendant, and at the time of the trial was still under the age of twenty-one years. The presiding justice ruled that the action could be maintained against both defendants, who excepted to the ruling.

<p>On exceptions.</p> <p>These were actions of assumpsit on two policies of fire insurance brought to recover the aggregate sum of $4,000. The plaintiff had one policy of insurance for $2,000 in each of the defendant companies, each policy covering both buildings and personal property.</p> <p>Plea, general issue with a brief statement of forfeiture of the policy through fraud, attempted fraud, and false swearing by the plaintiff in his proof of loss, and examination thereunder. This defense was relied on at the trial, in the superior court for Kennebec county, especially fraud-and false swearing as to the personal property set forth in the proof of loss. On this point the defendants offered evidence to prove (1) the false and fraudulent insertion of articles which the plaintiff knew were not in the house at the time of the fire; (2) false and fraudulent exaggeration of quantities of such classes of articles as were in the house; (3) false and fraudulent exaggeration of the value of the articles destroyed.</p> <p>The plaintiff’s proof of loss contained 564 distinct items or classes of items, and aggregating $6,800. He claimed the value of the buildings was $3,200, and that their contents,- — the household goods and farming implements, — was $3,600.</p> <p>Upon these issues of fraud, attempted fraud, and false swearing by the plaintiff, the presiding justice instructed the jury as follows:—</p> <p>1. “That if the plaintiff knowingly put a false and excessive valuation on any single article, or put such false and excessive valuation on the whole as displays a reckless and dishonest disregard of the truth in regard to the extent of the loss, such knowing over-valuation is itself fraudulent and the plaintiff cannot recover at all.”</p> <p>2. “That if the plaintiff falsely and knowingly inserted in his sworn schedule of loss, as burned, any single article which in fact was not in the house, or was not burned, this would constitute a fraud on the company, and the plaintiff can not recover anything on his policy.”</p> <p>B. “That any wilfully false or fraudulent statement in regard to the loss of its amount, would avoid the policy whether the actual loss was .greater or less than the amount claimed by the insured.”</p> <p>4. “That if the jury find that the plaintiff knowingly claimed in his sworn proof of loss more goods than were actually destroyed by fire, that would constitute the fraud, — 1 should rather say constitute the attempt at fraud, — and false swearing mentioned in the contract.”</p> <p>5. “That it is not necessary that the fraud should be to the full extent of the proof of loss, but that if in any respect the plaintiff purposely and designedly made a false statement in regard to the proof of loss, of what his loss was, although it might have been one of small amount, it defeats the policy for the full amount, both as to personal property and the buildings.”</p> <p>The jury returned a verdict for the defendants, and the plaintiff excepted to these instructions.</p> <p>Each policy of insurance contained the following provision:</p> <p>“Any fraud or attempt at fraud, or false swearing on the part of the assured shall cause a forfeiture of all claim under this policy.”</p> <p>By these instructions, it would be immaterial whether the personal property destroyed by fire was of the value of the amount of the insurance or not. And, by the same ruling, it was immaterial that the buildings destroyed by fire, and insured under same policies were worth $3,127, with, only an insurance of $2,100. The jury were compelled to bring in a verdict for defendants, if they found false swearing as to a single article covered by the poliejr although that article was worth but one cent.</p> <p>The false swearing and fraud must be material to affect the policy and avoid it. Jefferson v. Cotheal, 22 Amer. Dec. p. 573 ; Western Marine & Fire Ins. Co., 1 La., 216. Also see note in 2 Woods on Insurance, citing Merrow v. G-reat Republic Ins. Co., 35 Mo. 148. The true interpretation of the law, as to false swearing, is that it must be as to a material point. If the goods are personal property, destroyed by fire, amounting in value to more than the amount of insurance, then the false swearing and overvaluation, as to single articles or any portion thereof must be to the extent and purpose of enlargement beyond the amount of insurance thereon; otherwise, there is no materiality in the false statement or over-valuation, or including articles as being destroyed that were never there. If there is personal property enough destroyed by fire, covered by the policy to the amount of the insurance, it does not become material. The judge erred in his instructions to the jury. He should have instructed them that if they found the articles destroyed by fire were not of the value of the amount of insurance, and found that the plaintiff’s proof of loss' was to the effect that the goods were of larger amount than the insurance named in the policy, and then found that such proof of loss and statement was false and fraudulent and done with the intent to deceive the defendants, then the false swearing would have become material and the jury could rightly have found the verdict for the defendants, and such false swearing would then have avoided the policy.</p> <p>Take it in the case at bar. The value of the buildings destroyed by fire was $3,127, the amount of insurance $2,100. The personal property destroyed was equal to and exceeded the amount of insurance thereon by some hundreds of dollars. How can a false statement affect the insurance in this case if, as of necessity it must do, it relates to tlxe value of an article which could not possibly have affected defendants?</p> <p>Then, again, the interest of third parties, such as mortgagees are interfered with by the act of the mortgagor upon an immaterial matter. The instructions of the presiding justice should have gone to the extent that the false swearing should have been done with an intention to deceive defendants or got an advantage of them. In the case of Merrow v. The Great .Republic Ins. Co., before cited, the presiding judge refused to instruct “If the jury believe, from the evidence, that the plaintiff made the affidavit on the 10th of April, 1860 and that at the time he made it he did not know the amount of stock on the first floor and cellar, of the store therein mentioned, if at said time, plaintiff knew that he did not know the amount, then he has been guilty of false swearing, within the intent and meaning of the policy, and in that place, the plaintiff cannot recover.”</p> <p>The exceptions involve three propositions : (1) Wil fully false statements by the insured in his proof of loss as to the amount or value of the goods burned, constitute fraud or attempt at fraud in law; (2) such fraud, or attempt at fraud, though committed with reference to the personal property alone, avoids the policy both as to buildings and personalty; (3) it avoids the policy in toto, whether the actual loss was greater or less than the amount claimed by the insured.</p> <p>Counsel cited: May on Ins. § 479; Wood, Fire Ins. § 429; Griswold’s F. Underwriters’ Text Book, § 598 ; Goulstone v. Ins. Co., 1 F. & F. 276 ; Britton v. Ins. Co., 4 Id. 905 ; Chapman v. Pote, 22 L. T. N. S., 306 ; Hoivell v. Ins. Co., 3 Ins. L. I. 656; Leach v. Bepub. Ins. Co., 58 N. H. 245; Huckbenjer v. Ins. Co., 5 Biss. 106; Sibley v. Ins. Co. 9 Id. 31 ; Moore v.Ins. Co.,28 Graft., 508., S. C. 26 Am. Rep. 373-6; Shaw v. Ins. Co., 2 flask. 246; Little v. Phoenix Ins. Co., 123 Mass. 380 ; Cushman v. Ins. Co., 5 Allen N. B., 246; Ins. Co. v. Cushman, 2 Sup. Cl. of Can. 411; Harris v. Ins. Co., 10 Ont. 718; Mullen v. Ins. Co., 58 Yt. 113; Sternfield v. Ins. Co., 50 Hun. 262; Clajlin v. Ins. Co., 1.10 U. S., 81; Ins. Co. v. BePord, 38 Md. 382; Park v. Ins. Co., 19 Up. Can. Q. B. 110; Sleeper v. Ins. Co., 56 N. H., 401; Wall v. Ins. Co., 51 Maine, 32.</p> <p>“With intent to defraud” need not be expressed in terms in the instructions. Lord v. Goddard, 13 How. 198; TIammatt v. Emerson, 27 Maine, 308; Foster v. Charles, 7 Bing. 105; all cited and approved in Claflin v. Ins. Co., 110 U. S., 81.</p>

<p>On exceptions.</p> <p>This was an action to recover damages suffered by a defective road. The case was submitted to the court, with right of exceptions. The presiding justice ruled that the action was not maintainable, and the plaintiff excepted.</p> <p>The facts are stated in the opinion.</p> <p>The ditch, under the circumstances, was a defect. It is a question for the jury whether the obstructions are of such a nature as to affect the safety and convenience of travellers. Bryant v. Biddeford, 39 Maine, 193, in which the court say: “A width, which under some circumstances would meet all the exigencies of the public, might under a change of circumstances be entirely insufficient for that purpose.” Morse v. Belfast, 77 Maine, 46; Dickey v. Maine Tel. Co., 46 Id. 485. School house lot is not a private lot, within the principle of Philbrick v. PiUston, 63 Maine, 477. It is not reasonable that there should be only a small narrow passage way on the north end giving access to the school house. A ditch 18 inches deep, extending nearly the whole length of the lot, is not a proper path for ingress and egress for all classes of persons reasonably resorting there.</p> <p>The town should be required to make the whole six rods on the school house side smooth, have the ditch covered, and let the water run underneath.</p> <p>Brown was a traveller as soon as he stepped into the limits of the highway. The ease is not that of a private house, but a place of public resort.</p> <p>1. The plaintiff offered no record evidence of the location of the alleged road, either by the county or town authorities. A highway by user is all that he can claim, or attempt to prove. In such case, the rights of the public are limited to the user. The evidence shows that the highway described in the writ as travelled near the Haskell Corner school house, was about 15 to 18 feet wide, smooth and level within the travelled or used part, and perfectly safe for all persons travelling in it.</p> <p>The alleged ditch is wholly outside of the public user, and could’ not therefore constitute a defect in the highway as travelled.</p> <p>2. If the plaintiff had offered record evidence that the highway had been laid out three and a half or four rods wide, and that the ditch was within the' limits of the three and a half or four rods, still it is familiar law that no town is obliged to keep in repair the whole width of the road as laid out, but only enough for the public travel on such road, and is not liable for defects outside of the travelled part. Dickey v. Maine Telegraph Co., 46 Maine, 483; Kellogg v: Northampton, 4 Gray, 65, 69 ; Weare v. Fitchburg, 110 Mass. 337; Howard y. Bridgewater, 16 Pick. 189, 190.</p> <p>In the present case the travelled part of the road is shown by the plaintiff’s' evidence to be 15 to 18 feet wide, and in perfect condition; and the alleged ditch, being four feet at least to the east of the travelled part of the road, could not be defect in the road. Perkins v. Fayette, 68 Maine, 152-3-4.</p> <p>3. But a ditch is a necessary part of a well constructed road. “On each side of the way,” said Chapman, C. J., in delivering the opinion of the court in Macomber v. Taunton, 100 Mass. 256, “there may be ditches. These are so necessary for the proper drainage of the carriage-way that they are held not to be defects, if properly constructed, though, travellers may be liable to fall into them in the dark.”</p> <p>There is no suggestion and no proof that the ditch was not properly constructed, in the present case; the ground of complaint here, is, that it is constructed at all. Its mere existence on the side of the road is claimed to be a defect in the road, although four feet at least from the travelled part of the road, and that travelled part of ample width and smoothness, and perfectly safe.</p> <p>The plaintiff says it was in the evening and dark, and he could not see the ditch.</p> <p>“Towns and cities are not required to furnish lights for the use of persons who travel in the dark.” Macorriber v. Taunton, 100 Mass. 257.</p> <p>4. The plaintiff admits that he travelled along the road several times in the day time by this ditch, and travelled over it the same evening of the accident, and about two hours previously, in going to the school house.</p> <p>Why should he not be held to have knowledge of the alleged defect. — -the existence of the ditch ? And so comes within the provisions of the statute. R. S., c. 18, § 80.</p> <p>5. The plaintiff was uot a traveller. True, he alleges in his writ that, “while plaintiff was walking along said highway “he walked into said ditch; but the evidence not only fails to sustain this allegation, but negatives it. The plaintiff himself testifies that he taught singing school in the evening in a school house, and when his school closed, a little after nine o’clock, he started to go towards the highway from the school house, and walked 55 feet on the school house lot before he came to the edge of the ditch on the east side of the road; that it being dark, he fell into the ditch in trying to get into the road, and sustained the injuries complained of, — thus negativing his allegation that “he was walking along said highway,” which is the only ground upon which he could maintain any action against the town, — and showing that he was trying to get into the road, but had not succeeded.</p> <p>“We have been referred to no case, ’’said Daneorth, J., in delivering the opinion of the court in Leslie v. Lewiston, 62 Maine, 471, “where any person having voluntarily turned from the travelled path, or not having reached the wrought part, and suffering damages by a defect within the located limits of the road, has been allowed to recover of the town.”</p> <p>Same doctrine is reaffirmed by this court in Blake v. Newfield, 68 Maine, 365, 367; Perkins v. Payette, 68 Maine, 154.</p>

On exceptions. Action upon a promissory note, tried by the justice of the superior court, for Cumberland county, who signed the following bill of exceptions :— “This was an action of assumpsit commenced Oct. 26, 1888, entered at the December, term, 1888, and tried by the justice without the intervention of a jury, at the March term, 1889, subject to exceptions in matters of law. Ad damnum, $500.

Agreed statement. This was an action of debt to recover the penalty for an alleged violation of the provisions of R. 3., c. 40, § 17 and amendments thereof regulating the taking of migratory fish. It was admitted that on the 16th day of August, 1888, the steamer Hurricane, owned by the defendant, was engaged in fishing for menhaden with a purse seine, and that menhaden were taken, at a point northerly of Indian Island, in Muscongus Bay, Lincoln County.

<p>On motion.</p> <p>This was a motion for a new trial because the verdict was against law and evidencie and because of newly discovered evidence. The defendant was found guilty of murder in the first degree by the superior court for Kennebec county. The presiding justice in that court after hearing, overruled the motion, aud the defendant appealed to the law court.</p> <p>The case is stated in the opinion.</p> <p>1. James F. McManus, who testified at the trial that Beal was at his store inquiring for strychnine, has since confessed that he was mistaken as to the identity of the prisoner.</p> <p>Ghalfield v. Labhrop, 6 Pick. 417; Sewey v. Sourse, 54 Maine, 256 ; Warren v. Sope, 6 Maine, 479.</p> <p>2. If proven that the prisoner was at the drug store, then the “low conversation” that was alluded to at the trial, but the words of which were excluded, will, when given, as we now know them, tend to reduce the degree of the crime and render the verdict different. Anderson v. Titnms, Law Times It., N S. 711; Vbse v. Mayo, 8 Cliff. 484.</p>

Agreed statement. This was an appeal from the allowance of the defendant’s ac count, as executor of Crispus Graves, by the probate court for Cumberland county.

On motion and exceptions. This was an action of assumpsit, tried in the superior court for Cumberland county, in which, the jury rendered a verdict of $1,775.22 for tlie plaintiff. Tlie writ contained two counts, one on a bank cheek, and one on an account annexed for tiie consideration of the sale of plaintiff’s interest in a café, in Boston, to tiie defendant. At the trial it was admitted that the cl lock was forged and the plaintiff abandoned the count on it.

<p>In equity.</p> <p>This was an appeal from a decree of the presiding justice who heard the case, sitting in equity for Cumberland county, and who granted a decree against the defendant enjoining him from using certain labels and trade-marks, formerly employed by him in the canning business, and which with his manufacturing’ establishments, good-will, etc., he had sold and conveyed. The bill praying for an injunction and account was filed July 1, 1887. After the bill was filed, Davis, Baxter and Davis, the purchasers of the labels, trade-marks and other property from the original complainants were allowed to intervene. They waived that part of the bill asking for an account.</p> <p>The facts are stated in the opinion.</p> <p>The answer is not sworn to, nor is it signed by the defendant himself. It is, therefore, a mere matter of pleading. Chancery rule 14.</p> <p>The answer does not put in issue the value or validity of any of the trade-marks or the good-will. The only real issue raised by it is one of title, defendant setting up a right in himself. It is shown by the answer and proofs, that Jones in the most public manner during the three years before filing of the bill, set up a title and denied and impugned the plaintiffs’ title, to the great injury of these trade-marks.</p> <p>In the testimony and exhibits, the expression is not “Winslow corn” or “Winslow green corn,” but “Winslow’s corn” and “Winslow’s green corn,” indicating, by the possessive form, proprietorship, rather than quality or process.</p> <p>The defendant having sold the trade-marks and labels for a valuable consideration, is estopped from questioning their validity. By setting up title, he admits their validity. No man can claim title to what does not exist; thus by claiming title he admits its existence, their validity being the very essence of their existence.</p> <p>Plaintiffs should be protected in their right to the words “Globe” and “World Renowned” in the oonnectioir in which they use them. Royal Baking Powder Go. v. Royal Ghem. Go., N Y. Superior Court, March 1873; Same v. Mason, U. S. C. C., So. District, Ills., Treat, J.; Samev. Sherrill, and Same v. Jenkins, N. Y. Sup. Court, 1880; Same v. McQuade, U. S. C. C., Northern Dist., Ills., Blodgett J.; Same v. Vouwie, U. S. C. C., Northern Dist., Ohio, Walker, J.; Same v. Davis, U. S. C. C., Ea. Disk, Mich., Brown', J.; McLean v. Fleming, 96 U. S. pp. 245, 254.</p> <p>As to defendant’s claim that trade-marks, in part, indicate a process only, counsel cited : Singer Machine Mfrs. v. Wilson, 3 Appeal Cases, p. 376; Same v. Larsen, 8 Bissell, p. 151. The words, “Winslow’s Green Corn,” have never been permitted to go out to the world. The right to their use has been held in a single line of transmission. Its generic or public use has always been guarded against. They represent the peculiar quality, or excellence, which the owner of a trade-mark gives to Ms product. Menendez v. Molt, 128 U. S., 514, 520, 521.</p> <p>Plaintiffs entitled to use defendant’s name: Moxie v. Chaney, 143 Mass. 592; Kidd v. Johnson, 100 U. S. 617.</p> <p>Defendant cannot complain that the Winslow Packing Co. used the words, “Prepared by John Winslow Jones” because he does not set it up in his answer; they were used with his consent; he transferred the labels with those words on them; they were omitted more than two years before the bill was filed.</p> <p>To the defendant’s claim of forfeiture because he was not retained by the original corporation and paid as managing director, counsel argued : This was a matter of avoidance and defendant had failed to put in any evidence. Title of his vendees has been made absolute with his consent, assistance and affirmative action. No words of condition or forfeiture in the transfer of the factories, good-will and business. Inter-dependent clauses, each being executory and pari materid, not found here. The transfer was an executed and accomplished fact. There .were conveyances from Jones of the good-will and trade-marks disconnected from any agreement to employ him as managing director.</p> <p>Jurisdiction to restrain defendant’s notices, advertisements and circulars: High on Injunc. §§ 1011, 1012, 1181; Boston Diatite Co. v. Florence Co., 114 Mass. 69; Story’s Eq. §§ 944-951, 953; Mogford v. Courtenay, 45 L. T. R., S. C. Chitty’s Eq., Index, 4th Ed. Yol. 3, p. 2770; Marper v. Pearson, 3 L. T. R. (N. S.) 547; Stevens v. Paine, 18 Id. 600, S. C. Chitty’s Eq.Dig., Yol. 7, “Trade;” Massam v. Thorley's Cattle Food Co., 14 Chan. Div. 748.</p> <p>Exceptions to admitting intervenors: Counsel cited, Mason v. York if C. II. R. Co., 52 Maine, 107; Carroll v. Same, Id. and cases there cited; Story’s Eq. PL § 343. Plaintiffs here assert only a title which is disputed and ask the prevention of future wrongs and not damages for past infringements.</p> <p>The Limited Co. agreed to employ Jones at a salary of $5,000 per year, for ten years ; having neglected and refused they cannot in equity compel the execution upon his part of the agreement, when they refuse to perform theirs. Real question at issue is the plaintiffs’ right to the exclusive use of the Globe labels. “World Renowned” are not words capable of exclusive appropriation by any one, not being used to denote the origin, or manufacture of, but being descriptive of quality. Amoskeag Co. v. Trainer, 101 U. S. 51 ; Canal Co. v. Clark, 13 Wall, 311, and cases cited; Grilman v. Hunnewell, 122 Mass. 139 ; Casivell v. Davis, 58 N. Y. 223; Burke v. Cassin, 45 Cal. 467; Choynski v. Cohen, 39 Cal. 501; Larabee v. Lewis, 67 Ga. 562. “Winslow’s Green Corn,” was used by plaintiffs and defendant to inform the pirblic that the corn was prepared by the Winslow process to distinguish it from the Retort process, and decided by U. S. C. C. not to be patentable (2 Hughes, 527) ; consequently the world had the right to use the process and so mark their goods. Plaintiffs by their own fraud and misrepresentation have deceived and misled the public, and forfeited their right to the trade-mark.</p> <p>Admission of intervenors : When the trustees transferred the property discharged from the trust, the object of the bill was accomplished. Court will not determine their future rights. Purchasers of patents and trade-marks, pending suit, not protected as in other cases. Moore v. Marsh, 7 Wall. 515 ; Dean v. Mason, 20 How. 198; Cross v. DeValle, 1 Wall. 5. Damages would not go to intervenors. Bardwell v. Ames, 22 Pick. 333.</p> <p>Trade-marks assuring the public of the origin or ownership of the article: Upton on Trade-Marks, 98 ; Manhattan Medicine Co. v. Wood, 108 U. S. 218, and cases cited and approved; Connell v. Heed, 128 Mass. 477; Parlett v. Gruggenheimer, 8 Cent. Rep. 796 (Md.); Seigert v. Abbott, 17 Id. 496; Buckland v. Bice, Id. 411; Stachelberg y. Ponce, 28 Fed. Rep. 430; Sherwood v. Andrews, 5 Am. Law Reg. (N. S.) 688.</p> <p>Fraud and deception of plaintiffs, relied on by defendants, not set up in tbe answer in Stachelberg v. Ponce, supra; but the court considered it sufficient. Court utterly refuses its aid where fraud and deception are used. The inquiry is not only whether defendant, from his own showing and proof, has acted unjustly and inequitably, but also whether complainants, by their allegations and proof have shown that they are entitled to relief, jKnox v. Smith, 4 How. 298.</p> <p>Generic names cannot be appropriated as trade-marks. Lea v. Deakin, Price & Steuart’s Am. Trade-Mark Cases, 23; Lechlanche Battery Co. v. Western Flectric Co., Id. 167, and cases cited; Goodyear’s India Rubber Glove Mfg. Co. v. Goodyear Rubber Co., 128 U. S. 698. The words “Winslow’s Green Corn,” being clearly generic are public property.</p> <p>A name alone is not a trade-mark when it is applied to designate, not the article of a particular maker or seller, but the kind or description of thing which is being sold. Canal Co. v. Clark, 13 Wall. 311; Thompson v. Winchester, 19 Pick. 214; Wolff v. Boulard, 18 How. Pr. 64; Sherwood v. Andrews, 5 Am. L. Reg. (N. S.) 688, 591; Candee v. Deere, 54 Ills. 439 ; Singer Mfg. Co. v. Wilson, L. R. 2 C. D. 484 ; Cocks v. Chandler, L. R. 11 Eq. 446; Ford v. Foster, L. R. 7 Chan. Ap. 611; Burt v. Cassin, 45 Cal. 467 : Burnett v. Phalon, 21 How. Pr. 100 ; Binninger v. Wattles, 28 How. Pr. 206 ; Singleton v. Bolton, 3 Doug. 393; Canham v. Jones, 2 Ve. & B. 218 ; Goodyear’s India Rubber Glove Mfg. Co. v. Goodyear Rubber Co., 128 U. S. 598.</p> <p>Trade-marks employed upon patented articles become public property with the expiration of the patents. The court will take judicial notice that the process was patented in 1862, under the law of 1836, and hence the patents, granted for fourteen years, have expired. Patents are public records. All persons are bound to take notice of their contents. Boy den v. Burke, 14 How. 576. Expired patents : Singer Mfg. Co. v. Larsen, U. S. C. C., N; Dist., (Ills.), P. & S. Am. Trade-Mark Cases, 13, and cases cited in the opinion.</p>

On exceptions. At the trial before the jury, the plaintiff was permitted, to testify, against the defendant’s objection, to. his own measurement of the bark peeled and hauled, and his own survey of the logs hauled.

<p>Lottery. Scheme, or device of chance. Clmrch-fair. R. S., c. 128, §§ 13, 15.</p> <p>The game, practiced in aid of fairs and charities of voting with tickets purchased at fixed prices for candidates, of whom one in whoso name the most tickets are voted is to receive some article which the whole number of tickets pays for, is not illegal either under the statute, or at common law in this state.</p>

On exceptions. This case was an appeal from the decree of the judge of probate, for Androscoggin county, admitting to probate the last will and testament of Samuel Stearns. Issues of sanity, etc., were submitted to the jury. At the trial before the jury the proponents offered and used in evidence the deposition of Eliza Stearns, mother of the testator, but she was not a subscribing witness to the will.

<p>On REPORT.</p> <p>Petition for partition. The law court were to determine the rights of the parties and order such entry or judgment as the law, facts and admissions warrant.</p> <p>The report shows the following statement of facts: Daniel Edgocomb died possessed of a homestead farm situated in the town of Lisbon, and leaving as heirs-at-law, a wife and ten children, one of whom was John It. Edgeoomb, through whom the petitioner, Coombs, claims title to one tenth of said homestead farm, described in the petition: that the said John E. Edgeoomb was duly adjudged an insolvent debtor upon the petition of his creditors; that Samuel Sylvester was appointed assignee and accepted said trust; that an assignment of the debtor’s property was made by the judge of insolvency to the assignee and the same recorded in the registry of deeds for the county of Androscoggin ; and that the assignee gave notice of his appointment, and under license of court sold said John It. Edgecomb’s one tenth interest in said homestead farm, to Coombs, the petitioner.</p> <p>Several objections were made to the maintenance of the petition, by the respondents, which appear with the facts in the opinion.</p> <p>Dana and Pst), for respondent, Jesse Davis, cited Brackett v. Persons Unknown, 53 Maine, 228.</p> <p>Edgeoomb was an involuntary insolvent. Assignee’s notice of appointment, besides wrong dates in it, is the form adopted for voluntary cases.</p> <p>It is admitted that the assignee gave no bond, or notice of publication of this sale to petitioner Coombs; and purchaser at the only sale which was advertised did not take a deed. Assignee exceeded his powers and authority. His acts are void. Ryan v. Griffin, 6 B. R. 235; Bump Bankruptcy, p. 549. Sale should have been approved by the court after a return on license by assignee. In re, O'Fallon, 2 Dillon, 548.</p> <p>Petition and license call for one thing, deed conveys another. Deed void because it conveys the debtor’s right, etc., but not the assignee’s right. R. S., c. 70, § 33 ; Bump Bankruptcy, p. 550 ; Baker v. Vining, 30 Maine, 121. Rights of respondents to ten-acre lot regulated by statute, not affected by these proceedings. An agent should be appointed for Emily K. Cotton or her heirs. R. S., c. 88, § 7.</p>

On MOTION. This was an action upon a promissory note of the following tenor: $155. Farmington, Nov. 9, 1886. For value received I promise to pay John A. Stoyell or order one hundred and fifty-five dollars with interest at — per cent. H. B. Stoyell. The defense was that the note was without consideration, that the defendant signed the note in suit for the purposes of a receipt, and that he did not intend to sign it as a note.

On report. This was a bill for an injunction to restrain tlie defendants from maintaining a dam at the outlet of Oyster River Pond, in Camden, and diverting the water of tlie pond from a brook below. Tlie case was submitted to tlie law court upon tlie bill, answer and proofs. Tlie facts are stated in the opinion. Special laws of 1885 do not give the corporation a right to build a dam, or divert the natural flow of the water.

On exceptions. The indictment charged that the defendant had sold “a quantity of intoxicating liquors” without lawful authority, and that he bad been convicted of a prior single sale at a term’ of court held in the year one thousand and eightv-eight. The respondent filed a general demurrer to the indictment, which was joined by attorney for the state. The presiding justice overruled the demurrer and adjudged the indictment sufficient. To this ruling the respondent excepted.

<p> !Trover. Crops. Hiring. Lease. Bemedy. </p> <p>Where the plaintiff contracted to carry on tlie defendant’s farm, for one half of the crops, Held, that until a division of the crops, the plaintiff’s rights are in contract; and, therefore, he cannot maintain trover for such half against the defendant.</p>

Agreed statement. This-was an action of trespass submitted to the law court upon' an agreed statement of facts.

On REPORT. This was a special action on the case against a town for creating and maintaining a nuisance in a public street, by means of a drain or sewer built there by its municipal officers. If the action could be maintained upon the facts in the declaration, it was to stand for trial; otherwise the plaintiff was to become 'non-suit.

In equity. On appeal by defendant from a decree in favor of plaintiff after hearing on bill, answer and proofs. The facts are stated in the decision. The-deposition of Charles Hayward shows that no title was ever claimed by True & Hayward in the premises in controversy, and the deeds from them under which defendant claims, virtually disclaim any interest in them.

<p> Marine insurance. Barratry. Negligence. Shipping. Evidence. Expert. </p> <p>The policy written by the Portland Lloyds covers barratry of the mariners, but not of the master when the insured is an owner of the vessel.</p> <p>In a suit upon such policy, it is not necessary to negative in the declaration the limitation clause which exonerates the subscribers from liability beyond the contributed capital paid in and the undivided premiums. That is a matter to be used in defense.</p> <p>As bearing upon the seaworthiness of a vessel engaged in the coastwise trade, it is competent for the master to testify in relation to the selection of his mato, “I had every reason to suppose the man was sufficient for a coasting mate. I believed at the time he was capable.”</p> <p>The master of a ship who is a part-owner may be guilty of barratry towards his co-owners, so as to avoid a policy of insurance written in their favor, that does not cover the risk of barratry of the master.</p> <p>A marine policy covers negligence of the master and mariners.</p> <p>A verdict will not he disturbed when the evidence sustains it, and shows that the stranding of a vessel did not result from the barratrous acts of the master, but rather from his irresponsible condition occasioned by temporary insanity, resulting from exposure, potent drugs, loss of sleep, or excessive drinking of liquors, or by all of them combined.</p> <p>The conduct of the mate in not assuming command when the master thus became incapacitated, is excusable, upon the ground of erroneous judgment of his duty.</p> <p>Semble, that barratry of the mate upon whom the command of a ship devolves by the incapacity of the master, during a voyage, will not avoid insurance covering barratry of mariners, but not that of the master.</p> <p>Held, that the statements of the master, as he was about to go below at the end of a storm, giving his reason therefor, are admissible as a part of his act in relinquishing command of the deck for the time being.</p> <p>The testimony of an experienced seaman, relative to proper measures which should be taken to prevent stranding, is competent as bearing upon the proper navigation of a vessel, — a question wholly for the jury to consider.</p> <p>The opinion of a physician, called as an expert, who has not made a special study of mental diseases, may be excluded in questions of insanity.</p>

On MOTION. This was a motion for a new trial on the ground of newly-discovered evidence, in a ease submitted to the presiding justice without the intervention of a jury, and in which judgment was ordered for the plaintiff. The action was case. The plaintiff alleged that the defendant negligently and carelessly left open a gate, which plaintiff had built across a private way over Ms own land.

<p>On exceptions.</p> <p>The defendant, a non-resident of this state, filed a petition and bond under the laws of the United States for the removal of this action to the United States circuit court, on the ground of the diversity of citizenship of the parties to the cause. The court having denied the petition, the defendant excepted.</p> <p>The points of the case are fully stated in the opinion.</p> <p>Exceptions being to a ruling which did not finally dispose of the case in .the court below are prematurely here, and should be dismissed.</p> <p>Petition rightfully dismissed because not seasonably filed. Warehouse Go. v. Loomis, 122 Mass. 431; Malley v. Ins. Go., 51 Conn. 486 ; Preston v. Ins. Go., 58 N. H. 76; Gregory v. Hartley, 113 U. S. 742 ; Exchange -v. Tel. Go., 16 Fed. Rep. 289 ; Wedekind v. Pac. Go., 36 Fed. Rep. 279; Dillon Rem. Causes, § 64.</p> <p>Neither plaintiff nor defendant reside in the district of Maine, hence U. S. circuit court for this district has no jurisdiction. Tiffany v. Wilce, 34 Fed. Rep. 230.</p>

On REPORT. This was an action on the case to recover damages of the defendants for erecting and maintaining a dam on the Pemaquam river, in 1874 and ever since, whereby the county road in the plaintiff town was overflowed, the road-bed injured, and the plaintiffs thereby put to expense for its repair, etc. The case was referred to a referee who made a report in favor of the plaintiffs, — awarding the sum of five dollars as damages.

<p>ON BEPOBT.</p> <p>This was an action on the case, under R. S., c. 46, §§ 46 and 47, to recover from the defendant the amount of a judgment obtained against the Deer Isle Silver Mining Company, a corporation existing under the laws of this state, and in which the defendant was a subscriber and owner of stock not fully paid.</p> <p>(Declaration.)</p> <p>“In a plea of the case; for that the said plaintiff on the twenty-ninth day of May, A. D. 1886, by the consideration of the justices of the superior court of the county of Cumberland, at a term of said court begun at Portland, on the first Tuesday of May aforesaid, recovered judgment against the Deer Isle Silver Mining Company, a corporation established by law and having a place of business in said Portland, for the sum of five thousand six hundred thirty-four dollars and sixty-nine cents, debt or damage, and one hundred sixteen dollars and ten cents costs of suit as by the record thereof, now remaining in said court, appears, which said judgment is in full force, and not reversed, annulled or satisfied.</p> <p>And the plaintiff avers that said judgment was rendered in an action of assumpsit on a contract of affreightment, made and entered into by the said Deer Isle Silver Mining Company and the plaintiff, on the eighteenth day of November, A. D. 1882, and performed by the plaintiff between that time and the third day of March, 1883.</p> <p>And the plaintiff further avers, that at the organization of said Deer Isle Silver Mining Company on the sixteenth day of August, A. D. 1879, at said Portland, the defendant subscribed for or agreed to take stock in said corporation. to the extent of two thousand two hundred and fifty shares of the par value of five dollars each, and the defendant never paid said company the par value of said shares Iona fide in cash nor in airy other matter or thing at a bona fide, and fair valuation thereof.</p> <p>And the plaintiff further avers, that the said defendant continued a stockholder in said company from the time of its organization, as aforesaid, to the third day of March, A. 1). 1883, and was a stockholder and owner of said unpaid stock, to wit, of fourteen hundred shares at the time the indebtedness was contracted, upon which said judgment was rendered.</p> <p>And the plaintiff further avers, that at the time his proceedings to recover his judgment aforesaid, against said corporation, were commenced, to wit: on the twentieth day of October, A. I). 1888, the said defendant still remained the owner of said fourteen hundred shares of unpaid stock, or had remained the owner thereof up to a time within one year prior thereto, so that said proceedings were commenced during the defendant’s ownership of said unpaid stock, or within one year after its transfer was recorded in the corporation books.</p> <p>Whereby, and by virtue of the statutes in such cases made and provided, an action hath accrued to the plaintiff to have and recover of the defendant, and the defendant became liable and promised to pay the plaintiff the sum of five dollars a share for each of said fourteen hundred shares or so much thereof as may be required to pay that portion of said judgment of $5,750.79 with interest from said twenty-ninth day of May, A. D. 1886, as may remain unsatisfied and unpaid at the time of the rendition of judgment in this suit.</p> <p>Yet the said defendant, though requested, etc. * * *”</p> <p>The case was reported to the full court, by agreement under R. S-, c. 77, § 48, to render such judgment upon the competent and admissible testimony as the legal rights of the parties required. p</p> <p>The facts are sufficiently stated in the opinion.</p> <p>Defendant’s statement that, though the books showed 1400 shares in his name when the debt was incurred, he did not own any shares, is not admissible ; — -the books being the only competent evidence. A transfer of stock is not valid, except as between the parties thereto, until the same is so entered on the books of the corporation as to exhibit the names and residences of the parties, the number of the shares, and the date of their transfer. R. S., c. 46, § 12; Fiske v. Carr, 20 Maine, 301, 305; Fowler v. Ludwig, 34 Id.- 455; Dane v. Young, 61 Id. 160.</p> <p>Statutory rule and estoppel: Lowell, Transfer of Stock, § 191; Cook, Stock and Stockholders, § 262; Morawetz, Corp. § 170; Johnson v. Underhill, 52 N. Y. 203. To the defense that defendant is not liable on the 1000 shares bought in open market, we say, he was one of the original members, and so continued. Pie knew the companyuwas not paid the par value for stock issued. He purchased with knowledge of all the facts.</p> <p>A purchaser of shares succeeds to all rights and liabilities of the original holder. Upton v. Uansbrough, 3 Biss. 428 ; Seymour v. Sturges, 26 N. Y. 134: Sagory v. Dubois, 3 Sandf. Ch. 466; H. JY. H. R. R. Co. v. Boorman, 12 Conn. 530; Armstrong v, Wheeler, 9 Cow. 88; Ward v. Griswoldville Manf. Co., 16 Conn. 593 ; Mann v. Cooke, 20 Conn. 178.</p> <p>It is only when a person, who is a purchaser of stock issued as fully paid, is without notice that it was not in fact fully paid, that he cannot be assessed for the unpaid portion of the shares for the benefit of creditors. Waterhouse v. Jamieson, L. R. 2 Sc. Ap. 29; Guest v. Worcester, etc., R. Co., L. R. 4 C. P. 9; Spargo’s Case, L. R. 8 Ch. 410; NicholVs Case, 26 W. R. 334; Canal Co. v. Sansom, 1 Binn. 70; Palmer v. Ridge Mining Co., 34 Pa. St. 288; Franklin Oil Co. v. Me Cleary, 13 P. P. Smith, 317; Franklin Glass Co. v. Alexander, 2 N. H. 380; Seymour v. Sturges, 26 N. Y. 134; Jay Bridge Corp. v. Woodman, 31 Maine, 573.</p> <p>This last case was before enactment of present statutes as was K. P. R. R. Co. v. Kendall, 31 Maine, 470.</p> <p>R. S., c. 46, §§ 45, 46 and 47 were first enacted in 1871, c. 205. Foreman v. Bigelow, 4 Cliff. 508; Cook, Stockholders, § 257; Henkle v. Salem Mfg. Co., 39 Ohio St. 547.</p> <p>The associates were justified in placing the value they did on their property. The mine would yield thirty tons of ore daily, a profit of $100 per day, taking the lowest bids, above cost of operating. Assays made in large numbers by different persons ran thirty to forty dollars per ton. Sales offer or lowest bid was from six to twelve dollars, — there being ho reduction works here for treating refractory ores. It ivas regarded as a valuable and particularly good property. Capital stock as fixed, was the result of information obtained relative to the value of the property. In a legal sense, the value actually existed, and subsequent failure no evidence of want of good faith in thus fixing the valuation. There was no need of imaginary valuation. They believed the ore was of value shown by assays; mine would pay large dividends upon capital stock as fixed, and capable of permanent operation.</p> <p>Sales of stock for less than par, not conclusive as to value put upon it. Contributions of shares fox working capital, made what was retained more valuable. Stock ledger shows defendant had in Nov. 1882 only 400 shares of stock issued to him by the company. But they had been sold previously and then stood only in his name as custodian. Baton v. Tel. Co., 68 Maine, 63, 68.</p> <p>Liability of stockholder. R. S., c. 46, § 45, does not require payment should be made in property at its proper value, nor its market value. It only requires “fair valuation,”' — not true value, — a fair appraisal or estimate made in good faith.</p> <p>Property at its value: Schenek v. Andrews, 57 N Y. pp. 133, 142; Lake Superior Iron Co. v. JDrexel, 90 N. Y. p. 87 ; Ooit v. Gold Co., 14 Fed. Rep. pp. 15,18; Cook, Stock and Stockholders, § 34, citing Boynton v. Andrews, 68 N. Y. 93, 94. Sales of treasury stock illustrate the market value only, which is not xvhat the statute calls for. The twenty club shares of 2250 each were reduced by one fifth (450) for treasury purposes. Hence only 1800 shares were issued to defendant. Company realized on this treasury stock from forty-five to eiglity-six cents per share. Defendant not owner of these 450 shares when plaintiff’s debt was contracted. A transfer of them had been accomplished. Whitney v. Butler, 118 IT. S. p. 655. Parties receiving this from the company became liable by substitution for the defendant. Burke v. Smith, 16 Wall, 390, 895. Plaintiff makes up the 1400 shares, alleged in his writ, by adding to the 400 issued to deferxd'ant by tbe company, the 1000 shares he bought in the market. These 1000 shares did not come either directly or indirectly from the corporation to the defendant, — hence he was not a person who had “subscribed for or agreed to take stock” in the corporation. These words limit the remedy to persons dealing with the corporation itself. Defendant not liable thereon. Cases cited by plaintiff to this point rest upon different and peculiar statute provisions.</p> <p>Plaintiff’s declaration does not set out any liability of defendant for any stock, — except what he took originally, as unpaid stock, — hence, there can be no recovery for stock purchased on the open market, or any stock not specifically set out in the declaration.</p>

On motion and exceptions. The plaintiff having recovered, a verdict, the defendant excepted to the rulings and instructions of the court, as appears in the opinion. The motion was not pressed at the argument, there being no report of the defendant’s evidence. Amendment introduced a new cause of action. Newall v. Hussey, 18 Maine, 249; Vancleef v. Therasson, 3 Pick. 12; Ball v. Claflin, 5 Pick. 304.

<p>Agreed statement.</p> <p>This was a trustee suit in which the liability of the trustees was submitted to the decision of the law court. The facts appear in the opinion.</p> <p>Counsel cited: K,. S., c. Ill, § 6; c. 8, § 77; private and special laws of Maine, 1887, c. 178. Augur v. Couture, 68 Maine, 428; Stinson y. Oaswell, 71 Maine, 512; Wade v. Bessey, 76 Maine, 414; llapalje’s Law Dictionary, p. 245; Ames v. Winsor, 19 Pick. 248; Abington v. No. Bridgwater, 23 Pick. 170.</p> <p>Assignment valid: Emerson v. B„ Ji., 67 Maine, 392; Wade y. Bessey, 76 Id. 413; Hartley y. Tapley, 2 Gray, 566 ; Emery v. Bawrenee, 8 Cush. 151.</p> <p>“Commorant” does not apply to a laborer doing work in a plantation, though it adjoins the town of his residence. He could not be regarded a commorant of the plantation more than a portion of his time, and not the whole; hence his commorancy is in the town of his residence as well as in the plantation where he labors; and statute does not apply.</p> <p>The term commorant as used in the statute cited, applies to a laborer whose residence is unknown, or so uncertain as to create a doubt as to where it may be, or where the distance from his place of residence is such as to render it impracticable for him to visit such place during the time of performing his labor. The term does not.apply to a laborer as designating him a commorant of a plantation while performing work therein, if his well known and undisputed residence is so near the place where his labor is performed that he visits his home and family weekly, remaining over Sundays.</p> <p>If the fact of performing labor in an incorporated plantation makes the laborer a commorant therein, he must be so considered, though he should have his whole hoard and lodging at bis own home in an adjoining town of his known and undisputed residence.</p> <p>The writ is for the balance of account, and shows no evidence that it is for the recovery of necessaries for the defendant or his family.</p> <p>While a large portion of the items in the hill of particulars evidently could not have been for necessaries, some of the items indicate articles which would be necessaries if proved to be for the use of the defendant or his family; but whether such articles were for such use or for the use of some employe of the defendant, or for supplies carried to a lumbering camp is left in doubt, 9,nd at least is uncertain. Though the plaintiff claims that his account is in part for necessaries for the defendant and his family, the remaining portion of it evidently is not for such necessaries ; and the whole having been sued in one writ, the whole account must be regarded as if no part was for necessaries so far as relates to attachment by trustee process. That portion of his account for necessaries, the collection of which could not be defeated by trustee process, must be regarded superior to that portion subject to that process. The lien of a laborer is defeated if the judgment recovered includes non-lien claims. Reed v. Woodman, 4 Maine, 400 ; Quimby v. Bill, 40 Id. 528; Holmes v. Farris, 68 Id. 318.</p>

Ox EXCEPTIONS. The respondent filed a general demurrer to the indictment, which was joined by attorney for the state. The presiding justice overruled the demurrer and adjudged the indictment sufficient. To this ruling the respondent excepted. The indictment charges the respondent with maintaining a liquor nuisance, to wit: “A certain room in the Windsor Hotel, in said Belfast.” The deseriptio loci is insufficient.

<p>“Holmes note.” Chattel mortgage. Beplevin. JSToUce. Waiver. Practice. B. 8., c. 81, § 44; c. 91, § 7; c. Ill, § 5.</p> <p>A promissory note containing a stipulation that the personal property for which it is given, shall remain Clio property of the payee until the note is paid, (or a “Holmes note”) is so much of the nature of a chattel mortgage, that the holder cannot maintain an action of replevin against an attaching officer until he has given to the officer forty-eight hours’ notice in writing of his claim and its amount, as required by R. S., c. 81, § 44.</p> <p>In such action, if the defendant waives the necessity of the statute notice, the plaintiff will not be required to prove it has been given.</p> <p>In matters submitted for the decision of the law court, it is the duty of-counsel to sec that the bill of exceptions contains all necessary facts and statements ; their omission will be considered a waiver.</p> <p>A case should not be sent to the law court, when several law questions are presented at nisi prius, to decide one of such questions at a, time, and be sent up as many times as there are questions presented.</p>

Agreed statement. This was an action of assumpsit on account annexed to recover $31.25 for rent of a house on Congress street, Belfast, from September 22, 1888, to December 7, 1888, being two months and fifteen days. It appeared that prior to September 22, 1888, the plaintiff had leased, verbally, the premises named in the account annexed to the defendant at an agreed rental of $150 per year, payable quarterly.

On exceptions. The respondent was indicted at the May term, 1889, in the superior court for Cumberland county, for keeping and maintaining a liquor nuisance on the corner of Danforth street and Sisk lane, in Portland. The officers testified that the place was fitted up with the usual appliances for a bar, and that they’had found tumblers on the counter smelling strong of whiskey with some «drainings in them. In the cellar was found a box of lager beer.

On motion and exceptions. This was an action upon a joint and several bond in the penal sum of one thousand dollars, given by one Harvey L. Sawyer, as principal, and Joseph Beliveau and Nelson Gagné as sureties, to M. A. Jewell & Co., the plaintiffs. The defense was the general issue, non est factum, and a brief statement that the said sureties were induced to sign said bond by the fraud of the obligees.

<p> Verdict. New trial. Evidence. </p> <p>When the evidence is conflicting, and its weight to a great extent depends upon the credibility of the witnesses, and it is difficult to determine on which side it preponderates, a verdict will not be disturbed.</p>

On report. The plaintiff sought, in this action, to recover damages for injuries to his horse, received on Sunday, the 26th of December 1886, by reason of a defect in Elm street, in the city of Biddeford.

On RETORT. These were actions on the ease for obstructing a private right of way, claimed by the plaintiffs, over a strip of land in Lewiston, forty feet wide, lying between Main and Chestnut streets, and known as Mill street. The plaintiffs’ title is by deed from the Franklin Company, dated March 24, 1880.

<p> Way. Location de facto. Width. Adverse use. Presumption. Dedication. Pleading. Practice. </p> <p>Tlie use of ways, commenced under an actual and recorded location which clearly and distinctly defines their width, though the proceedings may not have been in all particulars strictly conformable to law, is presumed to be co-extensive with the location.</p> <p>After the lapse of twenty years, accompanied by an adverse use, a location of a way defacto becomes a location de jure.</p> <p>Thus, where a way was originally laid out three rods wide, Held, that the public is entitled to a way of that width, notwithstanding the wrought part and the part actually used by travellers may have been less than that; also, that the travelled path may from time to time be widened or otherwise improved, as the growing wants of the public may require, provided such improvements are kept within the limits of the way as originally laid out. When a case is submitted to the law court on a report of evidence, or on an agreed statement of facts, technical questions of pleading will be considered as having been waived, unless the contrary appears.</p>

<p>On report.</p> <p>This was a real action to recover possession of land described in a mortgage deed, dated November 28, 1887, from defendant to the plaintiffs. Plea, the general issue.</p> <p>The defendant contended that the plaintiffs could not set up the mortgage against a lease of the premises signed and accepted by them from him; that an action for possession under a mortgage, before breach of condition, can be maintained only when, according to R. S., c. 90, § 2, there is no agreement to the contrary ; and that a lease, in which the plaintiffs covenant to pay rent and surrender the premises at the end of the term, amounts to an agreement that the mortgagor shall retain -possession during the term.</p>

Agreed statement. This was an action of debt, commenced by trustee process, on a judgment recovered October 11th, 1886, by the plaintiffs against the principal defendant, in the city court of New York. All the parties to the action, except the trustee, were inhabitants of that state. The facts are sufficiently stated in the opinion. At the date of the assignment there was nothing due Blauvelt under the contracts.

In EQUITY. Bill in equity, brought under B. S., c. 70, § 18, to revise a decree of the court of insolvency, for Franklin county,' by which that court dismissed a petition filed by the plaintiffs, praying to have the Farmington Electric Light and Power Company decreed insolvent.

On motion. The defendants were indicted at the February term, 1888, of this court, in Penobscot county, for the murder of John Wilson Barron, treasurer of the Dexter savings bank, on the 22d day of February, 1878. The trial was begun on the twelfth day of term before a drawn jury, the chief justice presiding. The ease was committed to the jury on the 23d day when a verdict, guilty of murder in the second degree, was returned.

<p>Fire insurance. Non-occupancy. Increase of risk. B. S., c. 40, § 20.</p> <p>A policy of fire insurance upon a dwelling-house becomes void, when the risk is materially increased, by non-occupancy without the consent of the insurer.</p>

On exceptions from the superior court. This was an action of assumpsit to recover from the defendant, a counselor and attorney, money which lie had collected on a promissory note and which appeared, at one time, to belong to the plaintiff. It had been left with the defendant for collection.

On exceptions. The defendant demurred to the declaration which charged her with having alienated the affections of plaintiff’s husband, etc.

ON RTCPOltT. Tlie appellant, McAvity, having made a proof’ of debt for @16,648.41 against the defendant corporation adjudged an insolvent upon petition of its creditors filed January 28, 1887, in Penobscot county, tbe assignee objected to its allowance, and a bearing was had in the court of insolvency.

On exceptions. This was an action on a promissory note, the defense being forgery. After a verdict for the plaintiff, the defendant excepted to the rulings of the presiding justice excluding certain evidence offered by him. The case is stated in the opinion.

On kepokt. This was an action of debt on the bond of the defendant, made and given to the plaintiff, then 'his wife, September 12, 1882, for her separate support. Besides a general count in the declaration for the penal sum of the bond, the plaintiff also declared for forty-five monthly payments of thirty dollars each.

On exceptions. This was an action to recover for pauper supplies furnished one Daniel Shirley, whose home and pauper settlement, in 1860, were in Belmont. He was never married and his father and mother were dead. His only relatives residing in Belmont were a married sister and her husband.

On exceptions. Assumpsit on account annexed, the items and amount of which were not disputed. Date of writ, September 17, 1887. Defendant filed an account in offset, for rent or use and occupation of a lot of land in Kingman from April 1, 1885, to date of writ: the only question in dispute being the legal liability of plaintiff to have said account in offset allowed. The case was referred to the court with leave to except.

<p>On MOTION.</p> <p>This was a complaint by land owner to the court for Knox county, under R. S., c. 18, § 68 as amended by c. 97, of tbe public laws of 1887, for a view and assessment of damages caused by raising tbe street in front of the plaintiff’s premises, in the village of Rockport, town of Camden. The defendants contended that the benefits were equal to the damages. There was a view by tbe jury who returned a verdict for the defendants.</p> <p>Besides tbe general motion to set aside tbe verdict, as against law and evidence, the plaintiff filed a special motion for a new trial on the ground of alleged misconduct of jurymen, during the view, and after they had retired to deliberate upon their verdict. In this motion, the plaintiff alleged that one of the jurymen, whose knowledge of the premises had been acquired more than fifteen years before the trial, and before they had been used for the purposes which gave them their value, had declared in the jury room that he had worked teaming there; and that in his opinion the way out from the wharf was no worse than when he teamed there; that said statement influenced the mind of one other jury man in finding a verdict for the plaintiff. The motion also alleged similar declarations made during the view with like effect upon the minds of jurors. Affidavits of the jury and others, with depositions taken by a commissioner, appointed by the court, were filed with a report of the evidence at the trial.</p> <p>The verdict was against evidence and the weight of evidence. Pollard v. Grand Trunk Ry., 62 Maine, 93. Equal benefits: Briggs v. Horse R. R. Co., 79 Maine, 363.</p> <p>Misconduct of jurymen: Woodward v. Leavitt, 107 Mass. 466; Heffron v. Gallupe, 55 Maine, 563 ; Bowler v. Washington, 62 Id. 302; Winslow v. Morrill, 68 Id. 362; Perkins v. jKnight, 2 N. H. 474; Gilley v. Bartlett, 19 N. H. 312; Patterson v. Boston, 20 Pick. 166.</p> <p>Misconduct of jurymen: Evidence taken subject to objection and inadmissible. Heffron v. Gallupe, 55 Maine, 566; State v. Pike, 65 Id. 117; Trafton v. Pitts, 73 Id. 408; Woodward v. Leavitt, 107 Mass. 453; Rowe v. Canney, 139 Id. 41; Warren v. Spencer Water Co., 143 Id. 165.</p> <p>If admissible, no misconduct shown. Moving party for new trial confined to facts set out in motion. (Lennox v. R. R. Co., 62 Maine, 324) and must prove them to have prejudiced the party complaining. Com. v. Desmond, 141 Mass. 200; Newell v. Ayer, 32 Maine, 334; State v. Flint, (Vt.j 14 Atl. Rep. 186; Dana v. Roberts, 1 Am. Dec. 36, 37, note.</p>

On report. This was a bill of interpleader brought by the Augusta Savings Bank to ascertain the legal title to a deposit of $1,323.22, made by one Amos C. Hodgkins, the claimants being John B. Fogg, as^executor of said Hodgkins’ estate, and Dorothy J. Dearborn, a sister of the testator, as his donee.

On motion and exceptions. This was an action of assumpsit, in which the plaintiff alleged that tiie defendant, being an agent of the Phcenix Insurance Company, for a valuable consideration undertook and promised to effect insurance for her upon her mill property by said insurance company; that the property was destroyed by fire; and tbat tbe defendant never did effect such contract, etc. Tbe declaration also contained a count alleging tbat the plaintiff undertook and…

In equity. Aii appeal by defendant from a decree in favor of plaintiff after bearing on bill, answer and proofs. This was a bill in equity to redeem a mortgage. At the hearing at nisi prius the presiding justice ordered the bill to be sustained, and that the defendant account, etc. The defendant contended that he held the premises under an absolute deed; and that his agreement to reconvey them to the plaintiff did not render the transaction a mortgage.

<p>Intoxicating liquors. Constitutional law. R. S., c. 17; c. 27.</p> <p>Tlie undisputed facts show that the liquors which the state claims to confiscate, as being in the x>ossession of the respondent Bums for unlawful sale', were imported by him from England, were his property, were in the original and unbroken packages, and in the same condition as when imported; and that, at the date of the seizure, he had them in his possession with the intent to sell the same only in such original and unbroken packages, and in the same condition as when imported; and had established himself in a place of business in the city of Augusta for that purpose. The respondent contended that such possession and intent to sell was rightful under the laws of the United States. The court below ruled and decided that it was illegal under the statutes of this state. R. S., c. 27.</p> <p>Held, that the decision of the supreme court of the United States in the case, Leisy v. Hardin, on full consideration settles the question, and requires this court, bound on such questions by the law as determined by that court, to reverse the rulings below and sustain the law according to the respondent’s contention.</p> <p>Notwithstanding the opinion of the minority of that court may commend itself to many as containing the better conclusion, obedience on the part of this court, however, is due to the judgment which prevails; not that our statute is unconstitutional, for it prohibits only the “unlawful sale” of intoxicating liquors; but that its interpretation must be constitutional.</p>

On report. This was an action of trover for thirty-six cords of poplar wood, which the plaintiff had hauled and landed on the premises of the Lincoln Pulp and Paper Company, of which the defendant is the assignee in insolvency, under a contract to furnish the company with one hundred and twenty-five cords in all. The terms of the contract and other material facts are stated in the opinion. Recision : Seed v. Lord, 66 Maine, p. 582.

On report. This was an action of trover to determine the question of title and ownership in seventy cords of furnace-wood, forty-eight cords of poplar wood, and four and one-half cords of spruce wood, which the defendant took and sold as the property of the company, of which he is the assignee. The defendant was found liable, for the poplar and spruce wood, upon the same state of facts existing in the preceding case, Ballantyne v. Appleton.

<p> Beal action. Pleadings. General issue. Practice. </p> <p>In a real action, tlie plea of general issue admits the defendant to be in possession of all tlie land not specially disclaimed.</p> <p>In such case, the plaintiff must recover, if at all, upon the strength of his own title, and not upon the weakness of that of the defendant.</p> <p>Under the general issue, the defendant may rest upon his possession until the plaintiff has shown some right to disturb it.</p>

<p> Pleading. Declaration. Negligence. City ordinance. </p> <p>Tlie averment, in a declaration, that defendant’s sliding witli boisterous demeanor in a street, contrary to the city ordinance and to the damage and common nuisance of the public, whereby the plaintiff’s horses became frightened, ran away and were injured, sets out no cause of action.</p> <p>The calling of an act a nuisance does not make it so, when the nature of the act does not show it; nor does the averment of an act contrary to a city ordinance necessarily charge negligence ; it may be evidence of negligence, but not proof of it.</p>