Volume 83 — Maine Reports

On report. These were two appeals from probate tried together. In the first, the petitioner appealed from a decree in that court granting her an allowance of two thousand dollars, from her deceased husband’s estate. The appeal alleged that the allowance was not in accordance to the degree and estate of her husband, and the state of the family under her care, and, therefore, inadequate and much smaller in amount than it should bo.

On exceptions. Tlxe ease is stated in the opinion. A verdict wras rendered in favor of the defendant, and the plaintiff excepted to the rulings of the superior court-, for Cumberland county, in admitting testimony offered by the defendant to contradict certain statements of the plaintiff’s husband made on cross-examination.

On motion and exceptions. This was a petition for partition, brought by five of the heirs of William Mitchell late of Machiasport, deceased, against their co-heir William Mitchell, Jr., for the partition of the real estate of which their father died seized and possessed. In the petition it was alleged that the petitioners and the said respondent are each seized of one undivided sixth part of said real estate as heirs-at-law of said William Mitchell.

<p> Probate. Appeal. Parties interested. </p> <p>A grantee of real estate from the residuary legatee under a will, where there is no property of the testator which can be reached to satisfy the debts and claims against his estate, except such real estate, is interested in the settlement of the account of the executor or administrator of the estate, and has a right of appeal from the decree of the Judge of Probate allowing the account. (</p>

<p>On exceptions.</p> <p>This was a suit on a bastardy bond. The writ is dated October 9, 1886.</p> <p>Judgment was rendered for the plaintiff in the original suit at the September term, 1886, and a final decree entered, as follows : " The defendant is adjudged the father of the complainant’s child, and is to stand charged with the maintenance thereof, with the assistance of the mother. The sum which lie is charged with, for such support to the present time, is assessed at seventy-five dollars; and he is ordered to pay to the complainant one dollar a week towards such support in the future, to be paid at the end of each eight weeks ; and he is ordered to give a bond to the complainant in the penal sum of five hundred dollars, with sureties to be approved by the court, conditioned for the performance of the foregoing decree : and he is to stand committed till this order is complied with.”</p> <p>At the March term, 1887, the suit was carried to the law court, for the Middle District, (see Corson v. Dunlap, 80 Maine, 354) and at the May session of this court judgment was given for the plaintiff for the penal sum of the bond; execution to issue for such damages as accrued under the order of court.</p> <p>Said action was brought forward to the September term, 1888, when, with the understanding that either party should have the right to except to the ruling of the court, the presiding justice assessed the damages, as follows : "Heard in damages by the presiding justice; judgment for penalty of the bond; execution to issue for the amount assessed by the court in the original action, including, all sums due under the decree to last day of this term, with costs of that suit, . . . and interest on said sums, amounting to, . . . with costs of this action.”</p> <p>From this assessment, and the rule of assessment,' the plaintiff excepted.</p> <p>The assessment of damages as made by the court, after the rescript handed down from the May term of the law court, contemplates, without doubt, a further assessment under the order of the law court. That can not be done under the decision in Brett v. Murphy, 80 Maine, 358.</p> <p>If plaintiff is aggrieved, it is by the order of the law court, and sheshouldhave petitionedfor arehearing. Assessment of damages is correct and furnishes no ground for exception. Accords with the general rules and practice relating to the measure of damages in suits on bonds. It is common practice to chancer bonds and issue execution for only the sum really due. 2 Sedg. Dam. 207 ; Philbrooh v. Burgess, 52 Maine, 271. Bastardy bonds : Jordan v. Lovejoy, 20 Pick. 8 6. Assessment properly limited to last day of term. To include what might accrue after would be error, injustice and inequity. Hon constat, whether the child would live after judgment entered; if it did not, no further damages could arise by breach of bond. In Brett v. Murphy, the real questions were : 1, "Was the respondent surrendered by his sureties in season to discharge them from their bond. 2, Should the damage, in a suit on the bond, be reduced by the insolvency of the principal ? There is a radical difference between the two classes of cases, Philbrooh v. Burgess, and Brett v. Garter.</p> <p>The former was an action on a bond for the support and maintenance of the obligee; damages must from the nature of the case be assessed once for all, so much depending on personal and sentimental considerations, &c. The case does not show, even assuming that damages should be assessed once for all, that the presiding justice did not regard the amount fixed by him as an "equivalent for full performance.”</p>

<p>On exceptions.</p> <p>The hearing in this case was on a motion, at nisi prius, to dismiss an appeal from the decision of the county commissioners for Cumberland county.</p> <p>It appeared that in pursuance of a petition of the municipal officers of Westbrook, the county commissioners proceeded to make and establish the existing boundaries of an existing highway, in that town, called the Stroudwater road. They awarded the appellant no damages. She claimed that she was aggrieved by this decision and had the right to appeal. Counsel for the county denied her right to appeal, and moved that the appeal be dismissed.</p> <p>The presiding justice overruled the motion and the county excepted to the ruling.</p> <p>The appeal, filed in this court, after stating the proceedings taken by the municipal officers and county commissioners, alleges that, "said Stroudwater road has been used within substantially the same boundaries and limits for a long time, to wit, for fifty years; and the land of your complainant adjacent thereto was enclosed with a sufficient and substantial fence; and that said commissioners have included within their boundaries, established as aforesaid, a large quantity of your complainant’s land situated between the line of said road as heretofore used and fenced and the limits defined in their said return, to wit, two acres of land.</p> <p>" That the land so taken and included is of great value, and tlmt by such taking she will wholly lose the use thereof, and will be put to great expense to build and maintain new fences thereon, and, that by such taking, her remaining land is greatly reduced in value. All which is to the damage of your complainant,” &c.</p> <p>The motion to dismiss alleged, "1, That this court has no jurisdiction of said appeal upon the facts recited in the complaint filed by the appellant in this cause. . . .3, That the decision of the county commissioners upon the question of damages caused to real estate adjoining highways by the action of said county commissioners in locating and defining the limits and boundaries of such highways, is final and not subject to an appeal to this court.”</p> <p>The appellant is not deprived of any lawdul use or possession, but is simply ejected from the public way upon which she has trespassed. It is presumed that the land owner at' the original taking received compensation for all damages, present and prospective, and has no ground of complaint on account of the present action, defining the limits and boundaries of the same way. The statute provides a remedy where none before existed; no rights of abutters are affected by the proceedings. The remedy provided is the only one open; gives no right of appeal, and none will be implied.</p> <p>Damages, if any, nominal. Stetson v. Bangor, 60 Maine, 313; Bartlett v. Bangor, 67 Id. 460; Stetson v. Bangor, 73 Id. 357. Abutters can suffer no damage in simply locating and defining the limits and boundaries, of an existing and duly located highway, in accordance with the original location. The allegations in regard to the fences are surplusage. If they had existed for more than forty years, the fact should have been presented at the hearing and claim made under R. S., c. 18, § 95. It is to be prestimed that the fact was otherwise determined, or attention not called to it. This proceeding is not an extension over additional territory. No change of boundaries is contemplated by it. It is not to be presumed that the commissioners proceeded to alter and widen the way under a proceeding to locate original boundaries of a highway.</p> <p>Land has been actually taken and included within the new location. Compensation is sought for direct and not indirect injury. Statute, construed in connection with other portions of same chapter, gives the right of appeal. It may exist although not given in express terms. Cole v. Co. Com. 78 Maine, 532; 'Wells v. Co. Com. 79 Id. 522. When the true boundaries are lost, &c., the statute gives commissioners authority to proceed to hear the parties, &c., and if land is taken, they must follow the requirements of existing laws in reference to the laying out of ways. Such construction is required to keep it within the provisions of the constitution, both state and national. Howe v. Cambridge, 114 Mass. pp. 390-391. The commissioners’ l’eturn shows a new location four rods wide; does not show the width of the original road, or that they conformed to the original boundaries. Fences named in complaint, by statute, must be presumed to have been the true boundaries, &c. Going inside such fences, they took land of private owners for public uses, for which damages should have been awarded. Amount of damages awarded is not involved in the right of appeal. Counsel also cited : Holbrook v. Holbrook, 1 Pick. p. 254; Mention v. County of Worcester, 10 Pick. 234.</p>

<p>Beal Action. Bight of Entry. Life Estate and Remainder-man. B. S.,c, 104, §5.</p> <p>One entitled to an estate in remainder only, subject to an existing- life estate in another, can not maintain a writ of entry against one rightfully in possession under the life estate.</p> <p>To sustain such an action the plaintiff must not only prove that he has such an estate in the demanded premises as he claims, but he must also prove that at the time of suing- out his writ he had a right of entry into the demanded premises. R. S., c. 104, § 5.</p>

On report. The parties agreed, that if the action can be maintained on the plaintiff’s evidence, it should stand for trial; otherwise judgment to be entered for the defendant.

<p> Equity. Vendor and Purchaser. Specific Performance. </p> <p>When the owner of a lot of land agrees to sell it for an agreed price to another who agrees to pay it, equity treats the vendee as the equitable owner and the vendor as holding the legal title in trust for him; which trust follows the land until it reaches some bona fide purchaser for valuable consideration without notice of the original vendee’s equitable title.</p> <p>(See Cross v. Bean, 81 Maine, 525.)</p>

On exceptions. The action was trespass q. c. Plea, general issue. It appeared that there was a disputed boundary line between the parties which had been settled by parol agreement prior to the alleged trespass. The plaintiff being, at the time, satisfied with the parol award, paid for wood which he had cut on the defendants’ side of the line, and subsequently moved his fence in accordance with the line so established.

On exceptions. The action having been referred, under a rule of court, when the referee’s report was offered for acceptance, the defendant filed objections to its allowance. He offered proof to substantiate his objections ; which having been heard and considered by the court, were overruled, and the report being accepted, he took exceptions. The ease appears in the opinion.

<p> Promissory Note. Interest. Voluntary Payments. </p> <p>If tlie maker of a promissory note payable in one year with interest at seven and three-tenths per cent, continues voluntarily to pay the same rate after maturity, lie can not, in the absence of any fraud, have the excess then deducted from the principal.</p>

On MOTION AND EXCEPTIONS. The case is stated in the opinion. This is peculiarly a case in which the claim to a home is restricted to the house and family of a particular person. The pauper could not have had a home in Clark’s family without his permission. We search in vain for any evidence of such permission in the case. Corinth v. Lincoln, 34 Maine, 314. The verdict is wrong ; against the law and evidence and the weight of evidence in the case; and should be set aside.

<p> Forbearance. Consideration. Guaranty. Verdict. Practice. </p> <p>A promise to forbear and give further time for the payment of a debt, although no certain or definite time be named, if followed by actual forbearance for a reasonable time, is a valid and sufficient consideration for a promise guarantying its payment.</p> <p>When a promise to forbear is made in general terms, no certain or definite time being named, the law implies that the forbearance shall be for a reasonable time.</p> <p>The court may properly instruct the jury to return a verdict for either party when it is plain that a contrary verdict can not be allowed to stand.</p>

On report. This was an action brought by the plaintiff, who is a citizen of this state, upon two joint and several promissory notes, dated December 10, 1874, and given by the defendant, Spence, with one McKenzie for whom he was a surety, at St. Stephen, N. B. and payable one year after date to Douglass Hyslop, or order. These persons were all citizens of the Dominion of Canada. The plaintiff purchased the notes February 10, 1885, and began his action April 13, 1885.

<p> Way. Omni. Beque,sled Instructions. Practice. Easement. </p> <p>"When property in land lias been severed by voluntary conveyance, one portion of which is inaccessible except by passing over the other or by trespassing on the lands of a stranger, a grant of a way by necessity is presumed between the parties.</p> <p>A way of necessity ceases when the necessity from which it results ceases.</p> <p>An instruction to the jury is to be tested by the t'acts on which it is predicated.</p> <p>Traste v. Patterson, 29 Maine, 499, considered.</p>

On motion. This1 was an action for tlie diversion, &c., of the water, &c., from the plaintiff’s land. The writ is dated August 24, 1888. The defendant company pleaded the general issue; and alleged in its brief statement that the plaintiff was estopped by his acts, his deed, and by his silence in not denying the defendants’ title on the premises at the time of the alleged trespass. The verdict was for the plaintiff.

On exceptions. An action on the case to recover damages for personal injuries. At nisi prius, after the plaintiff had put in his evidence, on motion, the presiding justice ordered a nonsuit. To this ruling the plaintiff excepted and the case comes to this court on his exceptions. The facts are sufficiently stated in the opinion. cited: Lord v. Wormwood, 29 Maine, 282 ; Jewett v. Gage, 55 Maine, 538 ; Decker v. Gammon, 44 Maine, 322 ; Wells v. Howell, 19 Johns.

On report. This was an action of replevin. It was admitted that the plaintiff was the owner of the chattels, that they wrere not exempt from attachment; and that the defendant, at the time of the taking, was a deputy of the sheriff for Somerset County authorized to serve civil process.

<p>On exceptions.</p> <p>This was an action on the case, in which there was a verdict against the defendant for obstructing a private right of way, over his premises, vested in the plaintiff, and created by an express grant.</p> <p>In 1866, one Knight, owned a lot of land in Auburn, containing one acre, situated on the easterly side of the county road leading from Lewiston bridge to Farmington, as the road ran in 1835. Between 1835 and 1846, this road had been changed by "the county commissi oners, and the northern end swung off to the west, creating a heater-piece between the road as it existed in 1835 and as it existed in 1846.</p> <p>April 20, 1866, said Knight conveyed to the plaintiff a piece of land eighty-three feet by sixty-three feet, situated in the northwest corner of the acre lot, together with the privileges of Barron brook, (lying northerly) ilowage rights, and other water privileges; "Also, the right of passage-way for himself and others with or without teams from the county road to the aforegranted premises in the most direct and convenient place.”</p> <p>The county road, in 1835, ran along the whole westerly line of the one-acre lot; and after it was discontinued, by the alteration above referred to, no town or county way existed giving access to any part of the acre until 1889, when the city of Auburn located and built a town way, known as Knight street, from the county road, as altered and known as Turner street, northerly along the whole westerly line of the acre-lot.</p> <p>It was conceded at the trial that in 1866, Knight owned not only the acre-lot, hut the heater-piece lying next westerly of it.</p> <p>September 21, 1885, said Knight conveyed to the defendant a lot lying next south of the plaintiff, the deed containing this clause : " Said premises are subject to a right of way granted by said Knight to said John E. Tibbetts, by the aforesaid deed of April 20, 18(56.”</p> <p>The plaintiff contended that, soon after he took his deed, the way in question was located by agreement between the plaintiff and Knight, from a point on the southerly line of his lot easterly from Knight street and over the northwesterly corner of defendant’s land to the location of the old county road, now Knight street, and thence on said location to the new county road, known as Turner street; and introduced evidence sustaining his contention.</p> <p>The defendant contended that the passage-way had not been legally located across his land as claimed by the plaintiff; that if the acts and declarations of Knight and the plaintiff amounted to a legal location, snch location, was over the old location of the county road, now known as Knight street, and not upon the defendant’s land; also, that if not located on Knight street, there had been no legal location of the passage-way.</p> <p>It was admitted that on December 10, 1889, after Knight street had been built and opened for travel, the defendant erected a shed on the northwesterly corner of his lot, obstructing the passage-way leading to his mill as claimed by the plaintiff, but not obstructing Knight street.</p> <p>The case was submitted to the jury upon these issues, and they found for the plaintiff.</p> <p>The defendant offered in evidence the petition for the location of Knight street, and the proceedings of the city council thereon. He also proved that the petition was drafted by the request of the plaintiff, who obtained the signatures of others, and paid a portion of the expense of building the street. He requested the court to instruct the jury that " if Knight street was located and built substantially on the location of the way previously used by the plaintiff and those having occasion to go to his mill, the private way of the plaintiff is merged in the public way and extinguished.”</p> <p>The presiding justice declined to give the requested instruction, but instructed the jury as follows :</p> <p>"Then, it is claimed again, that the location of the public street along by the plaintiff’s property extinguished his right of way; that it no longer exists. I instruct you that that is not so. The public street may be discontinued at any time; but that would not extinguish the grant to the plaintiff. He holds it by grant, and it can be taken from him only in some legal mode. Locating a public street by the premises would not extinguish his right by grant, and especially it would not,, you will perceive at once, if it was located over any portion of the grantor’s premises east of Knight street, and the premises involved here are admitted to be east of Knight street. So you may pay no attention and importance to the location of the public street, no weight at all, any further than the conduct of the plaintiff tends to aid you in determining whether his way was located where he claims it or not. So far as that gives you any light, you have a right to consider it as a piece of evidence, and no further.”</p> <p>The defendant further contended that the clause in his deed of September 21, 1885, "said premises are subject to a right of way granted by said Knight to said John E. Tibbetts,” &c.,— did not enlarge tbe plaintiff’s rights, nor affect those of the defendant; that while the plaintiff was entitled to a way, under the terms of the deed, somewhere over land owned by his grantor at the date of his deed, yet the defendant’s deed did not show that such a way had, or had not been, legally located.</p> <p>Upon this point the presiding justice instructed the jury as follows : "You have in the deed, put in by the defendant, at least a piece of evidence which you may regard as important. My own opinion is, that as a matter of law, it is an estoppel upon the defendant to deny the existence of the way over the premises conveyed to him by Knight. But that point has not been made ; and I do not so instruct you. But I do say that it is important evidence upon that issue, because the deed recites that the remaining portion of the acre retained by Knight, and conveyed to Penley, the defendant, is subject to the right of way granted to the plaintiff in 18(56. The declaration is that the premises conveyed, are subject to the right of way granted to the plaintiff in 18(56. That is a declaration that the right of wa_y is located upon that land and exists there in the plaintiff, and the defendant has taken his deed containing such a declaration or fact. I say to you, if he is not estopped by it to deny the fact that it does not exist upon his land, it is of important weight in considering the question whether the road was located at the point, or substantially at the point, claimed by the plaintiff.”</p> <p>The defendant also requested other instructions, but as they' were not urged in argument, they' are omitted. To the instructions as given above and refusal to instruct, the defendant took exceptions.</p> <p>The record in terms refers to the private way, and the location of the town way was " over said way substantially as the same is used and travelled.” This extinguished the private way, or substituted therefor the way so located, and discontinued such portions of the private way'as were outside the new location. Following the petition promoted by plaintiff, the city council located Knight street directly upon the existing way for almost the whole distance of six hundred and ninety-five feet, only varying from it for about thirty feet before reaching plaintiff’s land, and then continuing the same course instead of making an angle around the corner of the Hackctt house. Interpretation of this record: Goodwin v. Marblehead, 1 Allen, 37, 40. Private right of way merged in the public easement: Leonard v. Adams, 119 Mass. 366. Damages allowed therefor: Ford v. Go. Gom. 64 Maine, 408 ; Bridge Gorp. v. Lowell, 15 Gray, 110. New way substituted for the old, as a whole, and portions outside, lying east of Knight street, discontinued. Hyde Parle v. Go. Oom. 117 Mass. 422. Pecord shows such was the intention. Same result in straightening crooked ways : Gyr v. Dufour, 68 Maine, 499'; Bowley v. Walleer, 8 Allen, 22. Plaintiff renounced his easement and by his acts is estopped : King v. Murphy, 140 Mass. 254, and cases cited; Dyer v. Sanford, 9 Met. 395; Pope v. Devereux, 5' Gray, 409; Ganny v. Andrews, 123 Mass. 155; Gorning v. Gould, 16 Wend. 531; Grain v.Fox, 16 Barb. 184; Snell v. Levitt, 110 N. Y. 595; Gurtis v. Noonan, 10 Allen, 406 ; Smith v. Lee, 14 Gray, 473, 480; Taylor v. Hampton, 4 McCord, 96; Liggins v. Inge, 7 Bing. 682, 692.</p> <p>Construction of defendant’s deed: Its terms arc not "subject to a way” but to "a right of way.” It was conceded that same clause in plaintiff’s deed of 1866, did not imply a location then made, but that one was to be made after the grant by the parties.</p>

<p> Client and Attorney. Evidence. Practice. linle of Court X. </p> <p>In a suit to recover for services claimed to have been rendered by the plaintiff in the prosecution of an “Alabama” claim, the defendant was permitted to prove that, subsequent to the time when the services sued for were claimed to have been pei'formecl, the plaintiff was expelled from the court and prohibited from prosecuting claims therein. Held; that this evidence was not admissible, or relevant to the issue.</p> <p>A paper purporting to be a contract between the defendant and a third party, by the terms of which the latter was to have twenty per cent of the amount recovered from the government, was held inadmissible.</p> <p>Proof of the execution of this document, which was executed in the presence of an attesting witness, does not appear to be governed by rule X of this court.</p>

On exceptions. This was an action of assumpsit on a promissory note given by the defendant December 3d, 1879, for one hundred ninety-eight dollars and seventy-two cents, with interest, payable on demand, to Fuller, Buck & Co., or order. Said note became the property of Andrew XX. Buck, one of the members of the firm of Fuller, Buck & Co., at the dissolution of the firm, February 22d, 1830.

On motion. ' Tbe defendant moved for a new trial after a verdict was rendered against him in the Superior Court, for Kennebec County, in an action to recover for groceries furnished by the plaintiff, and, as appeared by the testimony, were ordered by his wife and consumed in his family.

<p>On exceptions.</p> <p>This was an action of assumpsit to enforce a lien for labor. The owner of the building appeared and objected to the sufficiency of the statement filed with the town clerk. The presiding justice hawing- ruled that it was sufficient, he filed exceptions to the ruling.</p> <p>The facts appear in the opinion of the court.</p> <p>No statement however full and complete would answer the requirements of the statute unless " subscribed ” by the claimant. Therefore in considering the sufficiency or insufficiency of the statement filed in this case we are only to look at what the claimant has subscribed to. Any statement that may appear in the oath written above the magistrate’s signature cannot be considered as forming a part of the claimant’s statement because it is not subscribed to by the claimant. If every requirement of the statute ivas set forth in the oath, which the magistrate subscribes, it would not entitle the claimant to a lien, unless that had been subscribed by him.</p> <p>The statement does not show "the amount due.” It is merely a debit charge, one side of an account; it may be true in every respect as the debit side of the account. There is a distinction, between a debit charge and a statement that a specific sum is "due.”</p> <p>The statute requires "a true statement of the amount due, with all just credits given.” It may be that, if there are no credits to be given, that an omission to state that fact would not render the statement insufficient, but it is claimed that it should be so drawn as to leave no doubt that the sum specified is due. A mere debit charge does not preclude the idea that there may not be credits. The statement does not give a description of the property "intended to be covered by the lien.” There is no mention whatever made of the fact that the plaintiff claims any lien. It is merely a statement of labor on a certain building. The object of the statement, and the record thereof is to giire notice, to all persons interested, of the claim. If the statement contains no mention whatever that a lien is claimed it does not fulfill the purpose of the statute.</p> <p>It does not contain the name of the owner of the building, or the fact that the name of the owner was not known to the claimant if such was the fact. This requirement of the statute is not complied with. The case of Richer v. Joy, 72 Maine, 106, is the only case that we have been able to find in this state whore the sufficiency of the statement filed with the town clerk has been before the court. But it will be found by an examination of that case that the statement there in question specified the amount " due ” the claimant; that it was due for labor which entered into a building; there was a sufficient description of the property; and the name of the owner was given.</p>

On exceptions. The plaintiff excejited to the ruling of the Superior Court, for Kennebec County, in sustaining the defendant’s demurrer to the following declaration: In a plea of covenant broken; for that the said defendant on the eleventh day of January, A. D., 1887, at Albion in said county, by his deed of that date, duly executed, acknowledged, recorded, and in court to he produced, in consideration of the sum of seventy-five dollars, paid him by the plaintiff, conveyed…

Facts agreed. The case, which is stated in the opinion, was submitted without argument. The agreed statement of facts is as follows : Plaintiff is, and was on the first day of April, A. 15. 1888, and long before, a resident of Sedgwick, in the County of Hancock. In tlie winter of 1887-8, plaintiff, by bis agent, George 11.

On exceptions. This was a proceeding under B. S., c. 97, relating to bastardy. The complainant having filed, under section five of that chapter and before trial, her declaration, she next introduced the deposition of Mrs. Jenkins, to meet the requirements of section six ot the same chapter. The respondent objected to the fifth interrogatory and to interrogatories and answers numbered six and seven, which were as follows : Int. 5.

<p> Beal action. Evidence. Boundaries. Declarations. Practice. </p> <p>The declaration of ancient persons, made while in possession of land owned by them, pointing out their boundaries on the land itself, and who are deceased at the time of the trial are admissible evidence, where nothing appears to show that they were interested in thus pointing out their boundaries; and it need not appear affirmatively that the declarations were made in restriction of, or against, their own rights.</p> <p>When there is some doubt as to whether the acts and declarations were before or after the persons conveyed the land, it is a question in the first instance to be determined by the judge, in his discretion; and in this case was properly determined.</p> <p>See Royal v. Chandler, 81 Maine, 118.</p>

On motion. This was a proceeding by petition of the appellees, Clary and Quinn, filed September 28, 1887, in the Court of Insolvency for Kennebec County, to annul the discharge of the appellant Blake. There was a hearing thereon in that court and in February, 1888, a decree was made that the discharge be annulled.

On report. A locked and sealed box-freight car, laden with miscellaneous merchandise, consigned to different persons, among which were ten lcegs of whiskey, left Boston, at 7 :20 p. m., April 28, 1890, on defendant’s railroad, way-billed for Old Orchard, in this state. Claimant is a common carrier of passengers and freight for hire, and as such received the kegs and entered them regularly on its way-bill, which accompanied the car into Maine.

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

On report. The facts are stated in the opinion. Plaintiff attached and sold, not the right to redeem from mortgage to Bebeeca C. Lane, but the mortgage to Kittredge, the last mortgage prior to attachment. The sale of that right draws after it all the rest, (Bartlett v. Stearns, 73 Maine, 22,) and defendant estopped from denying its validity. Big. Estop. 326, 327.

On report. Bill in equity for partition, heard on bill, answer and testimony. The bill alleges that the plaintiffs are each seized in fee of one undivided part of certain real estate, situate in Belmont, Waldo County, containing one acre and ninety-six square rods, with the buildings thereon.

On EXCEPTIONS. The defendant excepted to the ruling of the Superior Court,, for Cumberland County, in overruling his demurrer to the' indictment, which charged that the defendant between the first, day of July in the year of our Lord one thousand eight hundred and eighty-nine, and the first day of May in the year of our-Lord one thousand eight hundred and ninety, to wit, on the. twenty-eighth day of April in the year of our Lord one thousand’ eight hundred and ninety at…

On report. This was an action brought by the plaintiff, as one of the beneficiaries named in a certificate or policy of life insurance issued by the defendants, to recover the money payable to him after the death of the insured, who was his half-brother. Plea was the general issue with brief statement alleging fraud and a breach of warranty by the insured in his application. The case is stated in the opinion.

<p>Equity. Practice. Pleadings. Defective Bill. Chancery Pule. 27, (1881). P. 8., e. 77, § 23.</p> <p>Equity causes should not be reported to the law court until the pleadings are sufficiently perfected to enable the law court to make a final decision upon the merits.</p> <p>In equity causes thus reported, if the bill does not contain sufficient allegations, it must be dismissed without any consideration of the evidence.</p> <p>When the plaintiff in equity seeks relief from the effects or results of some fraud, accident or mistake, he should in his hill fully and explicitly state the circumstances, so as to present a clear picture of the particulars,— of how the fraud was committed and how the plaintiff was misled, — of the character and causes of the accident or mistake, and how it occurred.</p>

<p>Fquity. Final Decree. Appeal. Frac,tice. Chancery Rule 28; R. 8., c. 77, § 20.</p> <p>In equity tliere is no affirmative decree to be appealed from until the decree is signed, entered and filed. Unless the record shows such a signing, and filing, an appeal will be dismissed.</p>

On exceptions. This -was an action upon a guardian’s bond. The cause came on for a hearing upon a motion to chancer the penalty of the bond, and, in determining the amount equitably and justly due, the plaintiff read in evidence a judgment of this court, showing that the principal in the bond in suit was charged upon his final account with the sum of thirty-four hundred dollars, and it was agreed by the parties, that, of that sum, one thousand seven hundred thirty-eight…

On report. Bill in equity, heard on bill, answers and proofs, and brought by the executor of the will of Sarah TI. Joules, late of Bath, deceased, to obtain a construction of the same, and to ascertain whether, under its residuary clause in favor of John Patten, the-property therein should go to his heirs, by right of representation, or be distributed as an intestate estate, said Patten having died before the testatrix.

<p> Pauper. Husband and wife. Foreign Divorce. </p> <p>Where the husband obtains a divorce from his wife, for her fault, by a decree of the court of another state, which prohibits the wife from remarrying, the wife still residing here, Held: that the prohibition to remarry is in the 'nature of a penalty, and has no force as a disability to remarry in another state Such disability does not attach to the person of the wife in this state. Held, also; That the prohibition upon the guilty party to remarry, bjr the statute of this state, does not attach in such case. That statute, applying only to divorces granted here, has no reference to divorces granted in another state.</p>

On report. This was an action of trespass de bonis against the defendant, who justifies the taking as a fish warden. Held: with those of forbidden length and thereby lost their right of property. The state which gave them the property can withdraw it when they use it unlawfully. It does not appear, and it is not alleged that there was no intent of plaintiffs to liberate the lobsters alive. State v. Bennett, 79 Maine, 55 ; Thompsons. Smith, Id. 1(50.

On motion and exceptions. This was an action on the case to recover damages for injuries Teceived by the plaintiff, on the 27th day of July, 1888, while •employed with others in excavating a trench for a sewer on Ash .Street, in the city of Lewiston.

On motion and exceptions. In the case, which was a pauper suit between the towns, it appeared that the plaintiffs had elected but one overseer of the poor, who was in office at the time the supplies were furnished. The defendants contended that one overseer was not sufficient, as the law requires the election of three, five or seven; and, therefore objected to the notice of the supplies given to them, which was signed by only one overseer.

On exceptions. This was an action of debt under chapter 190 of the Private and Special laws of 1867, entitled, An act to regulate the taking of fish in the Damariscotta river.” The writ was dated April 3d, 1890, — and contains eleven counts.

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

On rerort. The case is stated in the opinion. Receipt void. Ad. Torts, (abridged ed.) pp. 369-373 ; Pen. Room Oorp. v. Wilkins, 27 Maine, 345. Representation fraudulently made; relied on by defendants. Pollock Cont. 477. Defendants not negligent. Damages mominal: Edmunds v. Hill, 133 Mass. 445 ; Sawyer v. Mason, 19 Maine, 49. Counsel cited: 2 Greenl. Ev. § 301; Harmon v. Harmon, '81 Maine, p. 231; Abbott v. Treat, 78 Id. p. 126 ; Severance v. Ash, 81 Id. 281.

On report. The case is stated in the opinion. Counsel cited: Oram v. Thissell, 3,5 Maine, 86 ; Cooley’s Torts, pp. 127, 448 ; Kimball v. Billings, 55 Maine, 147; Galvin v. Bacon, 11 Id. 28 ; Burditt v. Hunt, 25 Id. 419. , Defendant an innocent bailee.

This was an action on the case to recover the value of the saddles of three deer. Plea, general issue. The facts appear in the opinion.

<p>Bills and notes. Acceptance. Order. Assignment. B. S., c. 32, § 10.</p> <p>No person shall be charged as an acceptor of a bill of exchange, draft, or written order, unless his acceptance is in writing signed by him or his agent (R. S., c. 32, § 10) ; nor is a drawee made liable as an acceptor by retaining an order in his possession.</p> <p>To make an order operate as an assignment, it must be upon a particular fund. It is not enough that it is drawn upon a debtor by a creditor in general terms.</p>

<p>Facts agreed.</p> <p>The case is stated in the opinion.</p> <p>Sufficiency of description of way : State v. Beeman, 35 Maine, p. 246; Bolster’s Town Officer; Jones v. Portland, 57 Maine, 42; Packard v. Co. Com. 80 Id. 43, and cases cited ; Cassidy y. Bangor, 61 Maine, p. 439.</p> <p>Sufficiency of notice : Ilarlow v. Pike, 3 Maine, 438 ; Howard y. Hutchinson, 10 Id. 335. Certainty of award: Colcord v. Fletcher, 50 Maine, 398 ; Lincoln y. Whittenton, 12 Met. 31.</p>

Report, on pacts agreed. The facts are stated in the opinion. The facts are undisputed. The sole question is, can the issue of this daughter, Isephine, inherit from her father any part of the real estate ? They can not unless they bring themselves within the provision of some positive statute enactment. Oooley v. Dewey, 4 Pick. 93, 95 ; 1 Bl. Com. 459. Statute enabling them to inherit should be strictly construed.

On exceptions. This case was presented upon exceptions to the overruling of respondent’s general demurrer to an indictment in two counts, drawn under so much of § 1, Chap. 281, Pub. Laws, 1889, as reads as follows : Nor shall any such company or agent pay or allow, or offer to pay or allow, as inducement to insurance, any rebate of premiums payable on the policy or other benefits to accrue thereon.” The indictment is as follows: . . .

On exceptions. Action by an indorsee upon the two following promissory notes: $23.86. Mt. Vernon, March 8, 1884. ' On demand after date I promise to pay to the order of M. S. Mayhew, twenty-three and 86-100 dollars at Mt. Vernon, with interest. Value received. John R. 'Watson.” [Indorsed :] Harriet A Mayhew, Admr’x.” $14.00. Mt. Vernon, October 18, 1883.

On report. This was an action on the case to recover damage alleged to have been done the plaintiffs’ easement as is more fully set forth in the writ, a copy of the declaration in which is set forth… Held: when they so laid their pipe, that such repairs of the street were inevitable, and to take the chances.

On exceptions. This W'as a petition in which the defendant was summoned to show cause why he should not bring an action to try his alleged title to certain real estate situate in Freeman, Franklin County, and which the plaintiff averred she owned and possessed in fee simple.

On exceptions. From the bill of exceptions it appeared that the Railroad Commissioners having declined to make any determination or award upon the terms and conditions for crossing the track of the Boston and Maine railroad, with a town way, in Kennebunk, the petitioners, the municipal officers of the town, upon the coming in of the report of the commissioners, moved its acceptance by the court.

On motion and exceptions. This was an action of assumpsit on a policy of the fire insurance. Plea, general issue with a brief statement that the policy had been rendered void, because of the premises becoming vacant and unoccupied and so remaining until the time of the fire, a space of about ten months, without the written consent of the company indorsed on the policy; and that by tbe vacancy and non-occupancy, the risk on tbe premises was materially increased.

On exceptions. Petition for mandamus to the Commissioners of Franklin County. Upon a hearing, the court granted the petition and ordered an alternative writ to issue, returnable at the next term. The defendants excepted to the ruling and order. The case is stated in the opinion. The defendants contend that mandamus should not be granted, as they say the petitioner has a clear remedy at law, etc., but they suggest none, nor have they any to suggest.

On exceptions. This was a suit by the plaintiff, as assignee of Charles Souther, to recover wages of the said Souther to the amount of sixty dollars and ninety cents. Tlio defendant admitted its liability but not to the full amount, and filed an offer to be defaulted.

On REl’ORT. This was a bill in equity brought by the plaintiff as owner of’ certain lands in Mayfield, Somerset County, to redeem the same-from execution sale.

On report. This was an amicable bill in equity, heard on bill and answer, brought by the plaintiff, as executor of the will of William Senter, of Portland, deceased, to determine the disposition of… Held: under certain circumstances, not to include rights and credits.” Longfellow v. Patrick, 25 Maine, 18. Testator has expressly made the funds arising from his insurance a part of his estate, and then disposes of all his estate by will.

<p> New Trial. Bailroad. Defective Gar. Due Gare. Verdict. Jury. </p> <p>Upon a motion for a new trial, in an action where the plaintiff obtained a verdict for injuries received by means of an alleged defective car, it appearing that the overwhelming weight of evidence was in favor of a sound car; that tie plaintiff’s account of the manner of Ms injury was improbable; and his admissions to others, before the action was brought, differing therefrom; Held ■■ that tlie jury must have been influenced by some improper motive In rendering a verdict for the plaintiff, and a new trial should be ordered.</p>

On exceptions. This was an action of assumpsit on an account annexed. The defendant pleaded the general issue, with a brief statement averring his infancy. The case is stated in the opinion. An infant may bind himself to pay for his good teaching and instruction, whereby he may profit himself afterwards. Co. Lit. 172. Money paid for an infant for necessaries is recoverable from Mm. Chit. Con. 142; Mete.

<p>On exceptions.</p> <p>The defendants excepted to the ruling of the presiding justice who ordered that the following award of the referee be accepted :</p> <p>"That there is now and was at the date of the plaintiff’s writ, and on the first day of June, A. D. 1889, as appurtenant to the land of the plaintiff as described in said writ, a right of way over the land of the defendant described in said Avrit. following the path or road now visible thereon to the public .road ; and that for the obstruction of said way as alleged in said writ, the said plaintiff recover against the said defendant, three «dollars as damages, with costs of reference taxed at fifteen ■dollars and twenty-six cents, and costs of court to be taxed by the court.” Upon the above report being recommitted the referee amended the same by adding " That I find said right of way above-found, to be subject to gates and bars as heretofore maintained by the occupiers of the servient estate.”</p> <p>The case is stated in the opinion.</p> <p>The referee should only have found that defendants were (or were not) guilty, and, if guilty, assessed damages.</p> <p>He had no right, nor power, nor authority, under the pleádings, to do more. And yet, he has' attempted to define a way with limitations which are both uncertain and indefinite by the terms of the award, namely: " subject to gates and bars as heretofore maintained by the occupiers of the servient estate.”</p> <p>No allegation in the writ, nothing in the award, defines or makes certain any way "heretofore maintained.”</p> <p>No owner of the dominant estate can trace, from the record, nor be confined to, any particular way over the servient estate. Banks v. Adams, 23 Maine, 259; Oolcord v. Fletcher, 50 Id. 398 ; Lisbon v. Bowdoin, 53 Id. 327.</p> <p>The referee exceeded his powers in making these awards in that he has awarded to plaintiff a right of Avay, or some other right, Avhereas the actions are brought not to recover any right, nor to define or determine any right, but merely to recover damages for an alleged obstruction of an alleged right.</p> <p>As in trespass, money is the only remedy here sought, and money only should have been awarded.</p> <p>"Guilty” or "not guilty,” "and no more,” would have met the legitimate allegations of the writ and pleadings ; and to award more was an excess of power given to the referee.</p> <p>To define the limitations of any way or right, and determine liabilities of owners, present and future, was, manifestly, ultra vires; an exercise of authority not delegated nor intended to be granted or assumed.</p> <p>Especially forcible is this point in the second action, wherein a third person, not a party, is an alleged owner of the servient estate. Wyman v. Hammond, 55 Maine, 534; Littlefield v. Smith, 74 Id. 387; Walker v. Simpson, 80 Id. 148. The awards are invalid altogether. Walker v. Sanborn, 8 Maine, 288 ; Boynton v. Frye, 33 Id. 216.</p> <p>Counsel cited: Strong v. Strong, 9 Cush. 561; Tollman v. Tollman, 5 Cush. 325 ; Karthaus v. Ferrer, 1 Peters, 223 ; Sperry v. Ricker, 4 Allen, 17; Byers v. Van Deusen, 5 Wend. 268 ; McKinstry v. Solomons, 2 Johns. 57 ; Solomons v. McKinstry 13 Johns. 28; Mt. Desert v. Tremont, 75 Maine, 252 ; Clement v. Durgin, 1 Id. 300 ; Gordon v. Tucker, 6 Id. 247.</p> <p>An award may be good in part, and bad in part, and if separable, the good will be affirmed. Stanwood v. Mitchell, 59 Maine, 121. May be good in part and void in paid, when the part which is void, is not so connected with the rest as to affect the justice of the case. Orcutt v. Butler, 42 Maine, 83 ; Banks v. Adams, 23 Id. 259 ; Day v. Hooper, 51 Id. 178 ; Rawson v. Hall, 56 Id. 142; Boynton v. Frye, 33 Id. 216; Deters v. Peirce, 8 Mass. 398; Skillings v. Coolidge, 14 Mass. 43; Harrington v. Brown, 9 Allen, 579 ; Gilmore v. Hubbard, 12 Cush. 220; Barrows v. Capen, 11 Cush. 37 ; Warner v. Collins, 135 Mass. 26; Martin v. Williams, 13 Johns. 265; Cox v. Jagger, 2 Co wen, 638.</p>

<p>On exceptions.</p> <p>After verdict against the defendant, she excepted to the 'instructions of the presiding justice, and which are stated in the opinion.</p> <p>The offense is local by nature, and the description of the place to be searched must be particular, special and specific. Const, of Maine, Article 1, § 5; State v. Roach, 74 Maine, 563 ; State v. Kelleher, 81 Id. 346. Description must beso accurate by metes and bounds that officer can find tlie place without reference to what persons he may find in it, or any knowledge he may have outside the complaint and warrant, and legally sufficient to convey by deed. State v. Robinson, 33 Maine, 564; Jones v. Fletcher, 41 Id. 254.</p>

<p>On report.</p> <p>Bills in equity, heard on bills, answers and proofs, brought under K,. S., c. 48, § § 44to 48, to collect a judgment of the defendants as stockholders of the Bar Harbor Land Company, and which the plaintiffs had recovered against the corporation.</p> <p>The material portions of the bill against the defendant, Paine, are as follows :</p> <p>1. That your complainants, under their writ dated September 7th, A. 1). 1889, entered in the Supreme Judicial Court, holden at Ellsworth, within and for said County of Hancock, on the second Tuesday of October, A. D. 1889, recovered a lawful and bona fide judgment against the Bar Harbor Land Company, on the thirtieth day of January, A. D. 1890, for the sum of $3198.29 debt or damage, and $16.29 costs of suit, upon which said judgment execution was duly issued, dated January 31st, A. I). 1890, and placed in the hands of one William Eennelly, a deputy sheriff of the said County of Hancock, who, on March 8th, A. D. 1890, made return thereon, in substance, that after diligent search therefor he could find no property of said corporation in his precinct and he duly returned said execution in no part satisfied; which said judgment was based upon a claim in contract against said Bar Harbor Land Company, in favor of your complainants, expressed and implied; and that said judgment is still held by your complainants in full force and not satisfied, reversed or annulled.</p> <p>2. That said Bar Harbor Land Company is a corporation with a capital stock fixed at three hundred thousand dollars, divided into sixty thousand shares of the par value of five dollars each, organized, created and established under the laws of Maine, on the twenty-seventh day of May, A. D. 1887, and from then to and at the date of this bill duly existing and having an established place of business at said Bar Harbor.</p> <p>3. That your complainants are informed and believe that on a certain day, to wit, June fourth, A. D. 1887, the said Edgar M. Paine, under the name of Edgar Paine, subscribed for, agreed to take and did take stock in said corporation to a large amount, to wit: one hundred shares ; that the said respondent has not paid for the stock so taken by him, either in cash or in aiiy other matter or tiling at a bona fide and fair valuation thereof, or made payment in any manner required by law. (Amended by striking out the words in the first and second lines so as to read : "That, on the fourth day of Juno, A. D. 1887, said respondent subscribed for,” &c.)</p> <p>4. That the cause of action, upon which the said judgment of the complainants against said corporation was founded, was contracted wholly during the ownership by the said respondent of his said stock.</p> <p>5. That the proceedings of the said complainants to obtain their said judgment against said corporation were commenced on the 7th day of September, A. D. 1889, as by the date of the writ above mentioned appears ; and that your complainants are informed and believe, (amended by inserting the words "and therefore allege,”) that their said proceedings to obtain judgment ■were thus commenced during the ownership by the said respondent of his said shares of stock, or within one year after the transfer of such stock was recorded on the books of said corporation.</p> <p>Wherefore your complainants believing that the respondent in the promises has become liable to pay said judgment and costs to the extent of his said unpaid stock, pray:</p> <p>(1.) That a subpoena in the usual form required issue unto the said Edgar M. Paine, commanding him to appear at a certain day and make full answer to this bill, but not under oath, answer under oath being hereby waived.</p> <p>(2.) That it may be ordered and decreed by this Honorable Court that the said respondent pay your complainants such sum as may bo found justly due them in the premises, in such manner as to this Court may seem proper.</p> <p>(3.) That this Honorable Court may grant such other and further relief in the premises as may bo necessary and proper.</p> <p>Dated this 14th day of March, A. D. 1890.</p> <p>Lucy A. Barron,</p> <p>George A. Barron.</p> <p>(Defendant’s Answer.)</p> <p>The answer of Edgar M. Paine, who says :</p> <p>1. That as to the allegations contained in paragraphs Nos. 1, 2, and 4, of the complainants’ bill, the respondent has no knowledge or information in tlie premises, and neither admits nor denies said allegations, but calls for proofs.</p> <p>2. That on the date alleged, the respondent did agree to take and did take one hundred shares of the capital stock of said Bar Harbor Land Company; but that the respondent did pay for the same in cash at the rate of three and fifty-one hundredths dollars per share ; in all paying to said company for said stock three hundred and fifty dollars in cash.</p> <p>3. The respondent admits that the proceedings of the complainants to obtain their said judgment against said company were commenced on the seventh day of September, A. D. 1889, but avers that it is nowhere alleged, as a matter of fact in the complainants’ bill, that said proceedings to obtain judgment were 'thus commenced during the ownership by said respondent of his said shares of stock or within one year after the transfer of said stock was recorded upon the books of the Bar Harbor Land Company aforesaid. And the respondent insists on this special matter of defense and asks to have the same benefit therefrom as if he had demurred specially to said bill.</p> <p>4. The respondent further avers that the debt, upon which said judgment against said Bar Harbor Land Company was obtained, was a mortgage debt of said company, as appears by the following statement: On June 14th, 1887, the complainants owning certain real property in the town of Eden, Hancock County, Maine, subject to a mortgage for three thousand dollars and interest at six per cent, until paid, given August 3rd, 1886, to James Eddy, conveyed the said property to said company ; and as a part consideration for said conveyance, the said company promised, covenanted and agreed with the complainants to assume and pay said mortgage; and that this agreement is the same contract referred to in paragraph 1, of the complainants’ bill as the basis for the judgment herein described.</p> <p>And Hie respondent prays that the complainants’ bill may be dismissed and that lie, the respondent, may have decreed to him his reasonable costs in this behalf most wrongfully sustained.</p> <p>Edgar M. Paine.</p> <p>Respondent’s answer was amended in the following particulars, on such terms, if any, as the law court should see fit to impose.</p> <p>After paragraph 4, is added : "The respondent further avers that the debt Avhich is the foundation of this proceeding was not contracted during his ownership of said unpaid stock, and he further avers that said judgment is invalid in particulars which could avail the corporation on a writ of error.”</p> <p>Plaintiffs’ proofs : Writ in action, Lucy A. Barron and George A. Barron vs. Bar Harbor Land Company, dated September 7, 1889. In the declaration are the following allegations :—</p> <p>. "That on said date of said sale, the said plaintiffs executed and delivered to the defendant a good and sufficient warranty deed of said lots, which said deed was then and there accepted by the defendant and by it caused to be recorded in said Registry, in Book 216, Page 250.</p> <p>" That prior to the date of said conveyance, to wit, on August the third, A. D. 1886, the plaintiffs mortgaged the first lot aforesaid to James Eddy, of Providence, Rhode Island, to secure the payment of three thousand dollars on or before four years from date at the option of the mortgagors, with interest at six per centum per annum, which said mortgage was existing and in force according to said terms at the date of the said sale. That at the date of the sale aforesaid, and as a part of the consideration paid for the land conveyed, the defendant assumed said mortgage and agreed to take up and pay the same forthwith; and in a mortgage of the said two lots given back by the defendant to the plaintiffs on the date of said sale, and as a part of the same transaction, the said defendant expressly assumed said mortgage to James Eddy and promised to pay the same and the sum and interest secured thereby forthwith. And the plaintiffs allege that the defendant has not taken up said mortgage to James Eddy nor paid the sum secured thereby nor any part thereof.”</p> <p>The above writ was entered at the October Term, A. D. 1889, when and where the defendant (Bar Harbor Land Company) appeared by its counsel and the case was continued to the January Term, A. D. 1890, of said court, at which term judgment was rendered for the plaintiffs by agreement of counsel for three thousand one hundred and ninety-six dollars and twenty-nine cents. The date of said judgment is January 30th, A. D. 1890. Execution issued in due form, January 31st, A. I). 1890, for amount stated in complainants’ bill, which execution was, on the 8th day of March, A. 1). 1890, returned in no part satisfied.</p> <p>Plaintiffs also put in extracts from the records of the Bar Harbor Land Company proving its officers, their powers, duties, &o., and votes relating to the purchase of the lands of the plaintiff, the payment and security therefor.</p> <p>They next put in their deed of the two lots of land to the Bar Harbor Land Company dated June 14, 1887, containing, next after the description this clause :—</p> <p>"The first hereinbefore-described being herein convoyed subject to a certain mortgage to James Eddy dated, August 3rd, A. D. 1886, recorded in said Kegistry, in Vol. 208, Page 217, and the second lot herein above-described being herein conveyed subject to a mortgage given the Hancock County Savings Bank, dated September 7, A. I)., 1885, recorded in said Kegistry in Yol. 202, Page 97, and by acceptance of this deed the grantee herein assumes and promises to pay all sums now or hereafter due under both said mortgages and debts secured thereby.” The covenants in this deed make no mention of any incumbrances, but are full covenants. Also, the mortgage of the Bar Harbor Land Company, dated June 14, 1887, to the plaintiffs, securing payment of ten thousand dollars, and which excepts from the covenants against incumbrances the two mortgages above-named by the following terms : ... "except two certain mortgages, one to James Eddy, and the other to the Hancock Savings Bank, both of which said mortgages said company has assumed and hereby covenants to pay ; ”</p> <p>Also, the mortgage deed from Lucy A. and George A. Barron to Janies Eddy, dated August 3rd, 1886. The condition of this mortgage, which is mentioned in the plaintiff’s writ, was to pay three thousand dollars, on or before four years from its date, at the option of the mortgagors, with-interest at six per cent per annum. Said mortgage covered the first lot described in plaintiff’s writ.</p> <p>• Also, the mortgage from plaintiffs to Hancock County Savings Bank, of the second lot described in plaintiff’s writ, dated September 7th, 1885, with condition to pay eight hundred dollars in one year from date with interest at eight per cent per annum. One year redemption clause. This mortgage was foreclosed by publication, the last publication being July 4th, 1889.</p> <p>Also, mortgage from plaintiffs to Fannie D. Burrill, of all plaintiff’s real estate in Hancock County, dated November 30, 1886, with condition to pay one thousand dollars, in one year from date with interest at eight per cent per annum. This mortgage was foreclosed, and paid by the plaintiffs prior to the date of their bill.</p> <p>George A. Barron testified :</p> <p>"I reside at Bar Harbor. My wife, Lucy A. Barron, and I owned the property described in this bill prior to June 14th, 1887. I made the contract of sale to the Bar Harbor Land Company of that property. I think the first conversation in regard to the sale was June 14th, 1887, the same day the papers were made. The papers were passed and the deed was passed the same day. I made the contract with Mr. Burrill. He was president of the company. I saw him first on the premises. (The conversation between Mr. Burrill and the witness was objected to by the defendant, but was received, and, with all the rest of the testimony in the case, to be considered by the full Court if admissible, and if not, to be rejected.)</p> <p>"I think Mr. Burrill asked me if I wanted to sell my place, and I told him that I had said that I would sell it, and he asked me what I asked for it, and I told him $20,000. He asked me if I thought that was a fair price, and I told him I considered it so, and that I had been offered that week $18,000, by a New York party, and I did not take it, and I thought it was well worth what I asked. Then he asked me how I wanted my pay, and I told him I would trade for one half down and for the other half I would take a mortgage ; or he proposed to me about tbe mortgage, that he wanted to give a mortgage for a part of it; and I told him I would take §10,000 down and he could keep back a sufficient sum to cover these mortgages which he knew all about. 1 said I thought it amounted to about §5000; it proved to be a little more than that when the interest iras figured. He said he would take it, and he said: "you have your wife come up this afternoon and we will have the deeds made and the papers passed.” Wo went up ; we went into the office of the Land Co. in Mr. Hamor’s building, and we agreed that this money should lie deducted out for these mortgages and interest up to the time of the sale, and I ivas to give a receipt for having received that much, the amount of the mortgages and interest, three mortgages altogether, two to Mr. Eddy, and one to him and Ms wife. We executed the papers at the office of the Land Co. that afternoon. I think I was paid §4,818, in money. There was a chock for $3,000. At the time I was paid I received a mortgage from the corporation. Mr. Burrill asked me if Mr. Eddy would take his money, in the first part of the conversation, and I told him I thought he would without doubt. These mortgages were to be paid right away; Mr. Burrill said he would attend to his matter right away. They were not paid. I have been obliged to pay a portion of them. I have paid a mortgage for one thousand dollars, — Fannie Burrill’s,— and two hundred and nine dollars interest, making-one thousand two hundred and nine dollars in all. He foreclosed on his mortgages. I don’t know that Mr. Eddy foreclosed but Mr. Burrill foreclosed on the eight hundred-dollar mortgage.”</p> <p>(Cross-Examined.) "The three thousand-dollar mortgage to Mr. Eddy lias not been - paid. I learned that it was not from the agent, Mr. Brown. It was on the agreement to pay that mortgage that this action was brought, this one against Mr. Paine. The eight hundred-dollar mortgage to Burrill has not been paid ; I presume it will have to be soon. I have forgotten, though, what time the foreclosure runs out.”</p> <p>"This suit was brought on the agreement of the Bar Harbor Land Co. to assume and pay the mortgage to James Eddy, and the agreement upon which the suit ivas brought is the agreement contained in the deed to the Bar Harbor Land Company, from me.”</p> <p>It was admitted that the mortgage on which suit was brought and judgment recovered, has not been paid by anyone.</p> <p>Defendants offered no evidence.</p> <p>Amendments are matters of form only. Courts of equity more liberal in allowing amendments than courts of law. Hewitt v. Adams, 50 Maine, 276.</p> <p>Judgment conclusive of the debt. Gaskill v. Dudley, 6 Met. 556; Johnson v. Somerville Go. 15 Gray, 218; Thayer v. JSÍ. E. Litho. Go. 108 Mass. 528, and cases cited; Millihen v. Whitehouse, 49 Maine, 527; Gole v. Butler, 43 Id. 401; Sidenspar7cer v. Sidensparker, 52 Id. 481; Cook on Stock, &c. § 209, and cases cited. A contract to pay a mortgage may be enforced before the promisee has paid it. 1 Jones Mort. (3d Ed.) § 769 ; Loche v. Homer, 131 Mass. 93. Defenses should have been set up in original suit. Error will not lie. Weston v. Palmer, 51 Maine, 73 ; Denison v. Portland Go. 60 Id. 519. Debt recovered in the judgment, not a mortgage debt of the corporation. A mortgage debt of a corporation can not mean anything else than an obligation of the corporation, the performance of which is secured by a conveyance of some property from the corporation.</p> <p>■This Land Company promised the plaintiffs to pay cei’tain debts amounting to over five thousand dollars ; but it gave the plaintiffs no security for the fulfilment of that promise, or conveyance of property by way of pledge to become void upon performance of their agreement. The corporation gave up no rights and parted with nothing. On the contrary, the corporation became possessed of over five thousand dollars, in cash of the plaintiffs’ money for the purpose of taking up certain mortgage debts of the plaintiffs, and has converted it to its own use. The plaintiffs took without security the naked promise of the corporation to pay the money over at once to the holders of certain mortgages, thinking that it would be for the interest of the corporation to do so to protect its equity of redemption; and so it would, had the corporation kept on and tried to reap the benefits of its bargain. But instead of this, on the decline of prices of land, it allowed this land to fall back to Barron, held on to the five thousand dollars, which was a part of the cash to be paid Barron under the original sale, and delivered him over to be devoured by his mortgagees. Could not be made a mortgage debt of the corporation if plaintiffs had paid the mortgages and claim subrogation thereby. Subrogation would only result in forcing payment out of plaintiffs themselves. Kinneav v. Lowell, 34 Maine, 302. There are three methods by which stockholders seek to avoid their liability to corporate creditors: first, by a cancellation or withdrawal from the contract; second, by release from their obligation to pay the full par value of the stock ; third, by a transfer of the stock. In each of these cases, however, a court of equity does its utmost to protect the corporate creditors, and a rigid scrutiny will be made in the interest of creditors into every transaction of such a nature. Cook on Stock, &c., § 199.</p> <p>The debt is a mortgage debt of the corporation, for which stockholders are not held. It is a "mortgage debt.” A mortgage debt is a debt secured by a mortgage. The corporation, by entering into the agreement aforesaid, became liable to the mortgagee directly. Dearborn v. Parks, 5 Maine, 81. This debt (from the corporation to the mortgagee,) is secured by mortgage. This debt is certainly a mortgage debt. It will not be contended that the mortgagee could have recovered of the stockholders on the ground that the contract constituted a non-mortgage debt. But the company not only became liable to the mortgagee but might have become liable to the plaintiffs. No liability to the plaintiffs accrued, however, because they, the plaintiffs, did not pay the debt. Burbank v. Gould, 15 Maine, 120. That they did recover judgment by default without paying the debt is immaterial in this connection.</p> <p>Their legal right was to pay the debt and be subrogated to the rights of the mortgagee, and to have the benefit of his claim and his security. This debt thereby would have been secured by a mortgage and, therefore, a mortgage debt. Jones Mort. § § 768, 879 ; Kinnear v. Lowell, 34 Maine, 299. As between these parties, the corporation became the principal debtor, the plaintiffs merely sureties. Jones Mort. § § 741, 769, note 2 ; Loche v. Homer, 131 Mass. 109.</p> <p>Second. It does not appear that the debt was contracted during the defendant’s ownership of stock. This is one o/ the elements that must be made to appear affirmatively by the plaintiffs. Grindle v. Stone, 78 Maine, 178. ' The only evidence on the subject is the admission in the answer that the defendants did take stock on June 4th, 1887. Assuming that the debt was contracted on June 14th, 1887, (which we deny) there is no evidence that the defendants owned any stock on that day. But we say that there was no debt at all. Barron had not paid the mortgage debt even at the time of the trial, and, therefore, there was no debt due to him. Burbank v. Gould, supra. The judgment is conclusive evidence of the existence of the debt only at the date of its rendition. It does not prove that a debt has existed even for one day prior. The corporation, then, owed the debt on January 30th, 1890. But it is not proved that the defendants owned any stock at that time ; the only proof, touching the point, is the admission in the defendants’ answers that they did take some stock on June 4th, 1887.</p>

<p>On MOTION AND ISNCKPTIONS.</p> <p>This was an action of assumpsit to recover for lumber and sawing the same. The declaration was in a single count upon account stated. The account annexed to the plaintiff’s writ was as follows :</p> <p>E. Gr. Coffin to John D. Baker, Dr.</p> <p>January 20, 1886, to balance due on lumber and sawing lumber as agreed on settlement between the parties, $110.00 Interest, 13.20</p> <p>$123.20</p> <p>Plea, general issue.</p> <p>When the cause came on for trial, the plaintiff introduced no evidence of an accounting, or a statement of their accounts, had between the defendant and the plaintiff’s intestate in the lifetime of plaintiff’s estate, or of an agreement between them that the sum mentioned in the account annexed, or any other specific sum, -was due from defendant to plaintiff’s intestate, except as appears in the evidence reported and made part of the exceptions ; nor was there any evidence that the lumber mentioned in the account annexed to plaintiff’s writ was ever surveyed by a sworn surveyor, as required by R. S., c. 41, § 21.</p> <p>After the plaintiff’s evidence was all out, the defendant’s counsel moved for a nonsuit; whereupon the plaintiff asked leave to amend the declaration in the writ by striking out the item thirteen dollars and twenty cents in the account annexed, and to amend the declaration so as to read one hundred and ten dollars instead of one hundred and twenty-throe dollars and twenty cents; which amendment -was allowed by the court against the defendant’s objections.</p> <p>The defendant then moved for a nonsuit on the ground that there was a variance between the declaration and the proof, and also upon the ground that there was no evidence of a survey of the lumber by a sworn surveyor, and that thus the claim sued for was founded on an illegal transaction; which motion was overruled by the court.</p> <p>The court instructed the jury, among other things, as follows :</p> <p>"If you are not satisfied that the proof in this case which has been offered sustains this declaration and the amount as claimed, you are not authorized to return a verdict for the plaintiff. In other words, you must be satisfied so far as the amount is concerned that, from all the evidence introduced here, and it all comes from the plaintiff’s side, this defendant owed the deceased in his lifetime $110.00 for lumber and for sawing. You have heard the testimony of the administrator as to what was said to him by the defendant, and you have also heard the testimony of one or two other witnesses as to what they heard Mr. Coffin say in regard to the amount that was due. If, from this evidence, you are satisfied that the defendant did owe that amount, $110.00, then you would be authorized to return a verdict for that amount, provided no provision of statute is in the way.”</p> <p>To these rulings and instructions the defendant excepted.</p> <p>The jury returned a verdict in favor of the plaintiff for $116.33.</p> <p>In one of the conversations between the plaintiff' and defendant, the latter stated that the bill was all right, that John, meaning the plaintiff’s intestate, had "sent him a bill, and that he,” Coffin, "had paid him something on itand when the plaintiff told him it was twenty-five dollars and that the same had been credited to him, he said it ivas all right, and repeatedly stated that he would pay the bill. The defendant, also, admitted to one Dinsmore, that there was due the Baker estate, one hundred and ten dollars for the lumber. In the presence of one Burke, the defendant said to the plaintiff, "You haven’t received that bill yet.” The plaintiff said "No.” "Well,” he said, "it should have been paid long ago. I was expecting some money, but I didn’t receive it. I will fix it shortly.”</p> <p>There was evidence to show that the lumber was used in building a stable for the defendant, and that John D. Baker, delivered part of the lumber.</p> <p>The defendant offered no testimony.</p> <p>An account stated is an agreement between persons who have bad previous transactions, fixing the amount due in respect of such transactions, and promising payment. See note to Lockwood v. Thorne, 62 Am. Dec. 85 ; Abbott’s Tr. Ev. 458. The admission must be of some certain and fixed amount due. 1 Chit. PI. 359 ; 2 Greenl. Ev. § 128 ; Seagoe v. Dean, 3 C. & P. 170. Not sufficient without naming or referring to a sum certain. Bernasconiv. Anderson, 1 Mood. &Malk. 183: note to Wiggins v. Liurkham, 10 Wall. 129 ; Lawyer’s Coop. Ed. Yol. 19, 885. Admission must be to plaintiff or his agent, Chit. PI. and Greenl. Ev. supra; Hughes v. Thorpe, 5 M. & W. 667 ; Bates v. Townley, 2 Exch. 152; Hoffar v. Dement, 5 Gill, 132 (S. C. 46 Am. Dec. 628) ; Breckon v. Smith, 1 A. & E. 488; Thurmond v. Sanders, 21 Ark. 255; note to Lockv;ood v. Thorne, supra-, Anding v. Levy, 57 Miss. 61 (S. G. 34 Am. Rep. 435). Only exception to the rule, is in favor of merchants. Cases, supra. Plaintiff testifies to no admission by defendant of any fixed and certain balance. Dinsmore not agent of plaintiff, or his intestate. Burke testifies to no specific sum. There is no evidence of a survey of the lumber. Without it, plaintiff has no basis on which to rest his account stated. Richmond v. Boss, 77 Maine, 590. A promise to pay for a past consideration for which there is no legal liability, does not make a binding contract. Llooker v. Knab, 26 Wis. 511; Smith v. Ware, 13 Johns. 257 ; Western Bank v. Mills, 7 Cush. 539 ; Ohenery v. Barker, 12 Gray, 345.</p>

<p> Deed. Condition. Reservation. Waiver. </p> <p>A deed of land containing- a reservation of pasturage for two cows during the life-time of the grantor, or, in lien thereof, the grantee’s personal obligation to fit her yearly fuel for the stove, and, in aid of the reservation, the stipulation that the grantee “is not” to incumber or convey the land meantime, does not create an estate on condition, blit conveys a fee subject to the reservation.</p>

On excretions. Tills was as action of assumpsit for money had and received and referred to the presiding justice with leave to except. The original action was brought by Lucretia Coolidge, plaintiff’s intestate.

<p>On motion and exceptions.</p> <p>This was an action of assumpsit in which the plaintiff recovered a verdict for the amount due him from the defendant as a joint accommodation indorser of a note which the plaintiff had paid. It appeared that the note, thus paid by the plaintiff, was a renewal by the same parties of another note of the same amount. The defendant objected to the admission of the first note in evidence, and all evidence relating to it, as immaterial. The court admitted it as showing the terms of indorsement, and permitted the plaintiff to introduce the second note and show what was done with it, against the defendant’s objection that, whether or not it was a renewal, was a legal proposition. The court, also, permitted the plaintiff to prove, subject to the defendant’s objection, conversations between the maker of the note and his accommodation indorsers.</p> <p>The case is stated in the opinion.</p> <p>The presumption of law is, on accommodation paper, that parties indorse in the order in which they appear on the note ; that their liability is regulated thereby; that a subsequent indorser is not liable to one who stands above him on the note; that a prior indorser, if he would compel contribution, must show clearly an express or implied contract of joint indorsement, and that nothing is to be presumed. 1 Dan. Neg. Ins. § 703.</p> <p>There is no evidence that defendant exchanged words with plaintiff, or that the understandings between the maker and other indorsers were brought home to him. He promised to indorse if the other two would, and as a fact was the last indorser. He would not indorse until the other two had signed. This rvas a several contract. Their evidence proves that defendant so understood it. First note not admissible. A written contract cannot be explained by another written contract. Howr parties went on to note A is not admissible to show how they went on to note I?. Any agreements, &c., between maker and other indorsers of second note not brought home to defendant.</p> <p>Counsel cited: Ooolidge v. Wiggin, 62 Maine, p. 568.</p>

On exceptions. This was a proceeding in insolvency in the estate of Sheridan F. Ireland, adjudged an insolvent, individually and as member The principal fapts are disclosed by the following extracts from the appellant’s petition in the Court of Insolvency : That in the month of April, 1887, he dissolved partnership with said Ireland, under an agreement then made by which he, the said Ireland assumed and agreed to pay all the debts, &c., of the said partnership; and said…

On exceptions. (Declaration.) In a plea of the case; for that one Janies H. Oak, of Presque Isle, in the County of Aroostook, was, on the twenty-third day of March, A. D. 1887, owing the plaintiffs for merchandise before that time sold and delivered to him, the sum of two hundred and sixty-two dollars and fifty-six cents, which said debt was wholly unsecured, and was owing other creditors whose claims were wholly unsecured, large sums, to wit; in all the sum of $18,123.41,…

Facts agreed. On the 27tk day of November, A. D., 1888, one Herbert F. Emery was owner of a certain building, being personal property on leased land at Bar Harbor, subject to a chattel mortgage running to and held by Hosea B. Phillips, the plaintiff in this suit. Said mortgage had been duly recorded prior to said date.

On exceptions. The debtor’s wife having proved a debt against him, in his composition proceedings in insolvency, the appellant, Huston, a creditor, thereupon applied for a re-examination of the claim by the Court of Insolvency which resulted in a dismissal of the objection to its allowance.

On REPORT. This was an appeal from the decision of the judge of the Insolvency Court, for Knox County, refusing a discharge to the petitioner on the ground that he was a merchant or trader and had not kept proper books of account. Upon hearing of the appeal the case was certified, on report, to the chief justice for the decision of the full court, under K,. S., c. 70, § 13. The material facts elicited from the insolvent’s examination are stated in the opinion.

<p> Superior Court. Jurisdiction. Case. Trespass. </p> <p>The Kennebec Superior Court has jurisdiction of an action on the case which charges that the defendant deposited earth upon his own land close to plaintiff’s fence in such a careless manner that the action of the elements pressed the earth and fence partly over upon plaintiff’s land to his damage; although that Court has not jurisdiction of real actions nor of actions ejuare clausum freyit. Such an action is not of the nature of quare clausum, nor its equivalent.</p>

On exceptions. This was an action on a fire policy issued to James II. Trott, husband of the plaintiff, and was tried by the presiding justice with right of exceptions. The presiding judge found as follows : Policy declared on, issued November 4, 1886, on application in writing of the insured, the blanks, filled up in writing, were in the hand-writing of the clerk of the company, but the blanks for statement of title were not filled up.

On report. Tlie facts are stated, in the opinion. Copy of land-agent’s records admissible by E. S., c. 82, § 102, as a conveyance of an interest in real estate, and being more than a license or parol sale. White v. Poster, 102 Mass. 375, 379. Similar conveyances appear in Plantation v. Bean, 40 Maine, 218, and State v. Shaw, 64 Id. 263. It is an estate of inheritance and an interest in the soil that was conveyed.

On REPORT. These w'ere two bills of interpleader, heard together on bills, answers and proofs ; the court below haying ordered the defendants to interplead. The case is stated in the opinion. Not a gift, inter vivos, to wife. Oarleton y. Lovejoy, 54 Maine, 446 ; Robinson' v. Ring, 72 Id. 140; Drew t. Haggerty, 81 Id. 231; Parcher y. Sav. Inst. 78 Id. 473; Taylor v. Henry, 48 Md. 550, (S. C. 30 Am. Rep. 486) ; Towle t. Wood, 60 N. II. 434; Pope t. Burlington Sav.

<p>Sale. Lease. Foreign Chattel Mortgage. Contract. Lex Fori. Beplevin. B. S., e. 81, § 44. Mass. Geni. Stat. c. 192, § 13.</p> <p>Writing an agreement in the form of a lease does not alter the character of an instrument which by its more essential terms discloses itself to be a conditional sale of personal property.</p> <p>As the statutes of Massachusetts allow the redemption of a conditional sale of personal property in the same manner that mortgages of personal property are redeemable, that provision becomes a part of all such contracts made in that commonwealth, and is entitled to enforcement in this state when the contract is to be executed here.</p> <p>As our own remedies are to be applied in litigations here, it follows that, if property thus conditionally sold in Massachusetts is attached in this State as belonging to the vendee, the vendor or ins assignee, before he can maintain replevin therefor against the attaching officer, must notify the officer of his claim and the amount due upon it, as required by R. S., c. 81, § 44.</p>

<p>On REPORT.</p> <p>Bill in equity heard on bill, answer and proof.</p> <p>The case is stated in the opinion.</p>

<p>' Contract. Warranty. Alteration. Estopped. Evidence.</p> <p>Parties, who have houncl themselves in an executory contract of sale of' personal property without warranty, are not precluded thereby from superseding such contract afterwards by an executed sale of the same-property with warranty, and other change from the terms of the first-contract.</p> <p>In an action on the warranty of such property the vendee is not estopped, to show that it was worthless, by 1ns admission in the first written agreement that it was worth one hundred and twenty-five dollars. The admission would be evidence but not conclusive evidence of the value.</p>

On report. Bill in equity, heard on bill, answer and proof. This was a bill in equity brought against the defendants, trustees under the will of Ebenezer Eames, by the plaintiffs, his grandchildren and their survivors, claiming that a certain portion of the trust estate which otherwise would go to Leander T. Chapman, a grandchild, should be distributed to them, as his survivor under the will, by reason of his death without issue.

On exceptions. Trustee process. The presiding justice ruled pro forma that, upon the facts alleged in his disclosure, the trustee should be discharged. The plaintiff excepted to this ruling. The case is stated in the opinion. This sint was commenced within the time limited by the statute. It is true, it is not commenced by the claimant himself; but it is brought by his creditor, who, by his attachment, succeeds to the rights of the claimant.

Facts agreed. Action of covenant broken. From the agreed statement it appeared that the action was brought against the defendant as executor of Nathan Morrill, deceased, for alleged breaches of the covenants contained in a warranty deed of certain premises in Buckfield, given by said Morrill to the plaintiff on the third day of April, 1880.

<p>Equity. Statute of Limitations. Practice. B. S., c. 77, § 34.</p> <p>It is generally too late in a suit in equity to interpose a plea of limitations after tlie master’s report is in, where the point was not taken on demurrer or in answer, although it is within the power of the court, in the furtherance of justice, to allow the plea in an extreme case at any time.</p> <p>(See Webb v. Fuller, 77 Maine, 568.)</p>

<p>On exceptions.</p> <p>This was an action of assumjisit brought in the Superior Court, for Cumberland County, for a breach of contract for sale of a soda fountain, and tried by the justice without the intervention of a jury, subject to exceptions, in matters of law. Plea, the general issue.</p> <p>It was admitted that the contract was performed on the part of the plaintiff; that the fountain was made to the order of the defendant for his own use and especially for him; and the breach of the contract as alleged in the writ is admitted. The defendant •further admitted that the fountain was offered to be delivered or tendered to him on the day set forth in the writ and was in charge of the transportation company subject to the defendant’s acceptance.</p> <p>The plaintiff claimed that the measure of damages is the contract price. The defendant contended that the measure of damages is the difference between the contract price and the market price upon the day of the breach of the contract.</p> <p>It was further agreed that if the court sustained the contention of the defendant the damages should be assessed at twenty-five dollars.</p> <p>The plaintiff declared specially on the contract.</p> <p>The declaration after setting out the contract, alleges : . . . "And the plaintiff further alleges that the defendant signed an order in writing for the purchase of the above-described goods, Avith terms and conditions as aforesaid, therein stated, Avhich said order in writing signed by the defendant, plaintiff Avill produce in court. And plaintiff further avers that said order in writing Avas thereupon, to wit:— on said twenty-eighth day of June, 1889, accepted by the plaintiff, and that in pursuance thereof, and in consideration of the promise of defendant to pay for the same as aforesaid, said apparatus was made, prepared and finished, and Avas so made, prepared and finished in accordance with the description contained in said written order, and that said apparatus so made, prepared and finished Avas delivered to the defendant on June twenty-eighth, A. D., 1889, and the bill of lading therefor delivered to defendant, and said contract fully performed by plaintiff in his behalf, and plaintiff thereupon requested the defendant to pay to him, the said defendant, said sum of two- hundred and seventy-fiAre dollars in cash, and to deliver to plaintiff said five notes for fifty dollars each, in pursuance of said order and contract. But said defendant, unmindful of his said order and contract, then and there refused to accept said apparatus, and still refuses to accept the same, and then and there refused and still refuses to pay plaintiff said sum of two hundred and seAmnty-five dollars in cash, and then and there refused and still refuses to sign and deliver to plaintiff, said five notes for fifty dollars each, for said deferred payments.”</p> <p>This action is not brought for goods sold and delivered, but is brought for breach of the special contract. In the oases where the courts have decided the measure of damages to be the difference betAveen the contract price and the market price, the actions have been brought upon account annexed, or for goods sold and delivered. Atwood v. Lucas, 53 Maine, 508. Where goods are prepared for the vendee, of a particular description, when vendor has performed his part of the contract and tenders the articles, and the vendee refuses to accept, the vendor may recover the full contract price. Gordon v. Horris, 49 N. H. 376; Newmarket Iron Foundry v. Harvey, 23 N. H. 395 ; Bement v. Smith, 15 Wend. 493 ; Shaw han v. Van Nest, 25 Ohio, 490 ; Sedg. Dam. 339 ; Thoms v. Dingley, 70 Maine, 102.</p> <p>Counsel also cited: Dustan y. Me Andrew, 44 N. Y. 72, 78 ; 1 Sedg. l)aui. (7th Ed.) 59(5; Bookuxdter y. Clark, 10 Eed. Hep. ^793; (S. C. 8 Myers Fed. Dec. 746); Thorndike y. Locke, 98 Mass. 340 ; Pearson v. Mason, 120 Mass. 53 ; Hanna, y. Mills, 21 Wend. 90; Dunlop v. Grote, 2 C. & K. 153; Hutchinson v. Reid, 3 Camp. 330; Dutton v. Solomonson, 3 B. & P. 582 ; Barrows v. Mullen, 21 Minn. 374; 1 Chit. PI. 345; Suth. Dam. 356 ; Mussen v. Price, 4 East. 147; Messer v. Woodman, 22 N IT. 172; Stoddard v. Mix, 14 Conn. 12; Worthy v. Jones, 11 Cray, 168; Sedg. Dam. § 283 ; Graham v. Jackson, 14 East, 498; Benj. Sales, § 315.</p> <p>The tost to he applied is whether title has passed; this governs not only the form of action but also the rule of damages. If title has passed, then an action for goods sold and delivered can be maintained, and the contract price recovered; if it has not passed, the action must be upon the contract for the damages suffered, and the rule of damages is the difference between the contract price and the market value. Measured by any other rule than the general one, he recovers not his actual damages,— not his real loss,— but an amount which allows him double the benefit of his contract.</p> <p>The seller has the three remedies, mentioned by text writers, only in case title has passed ; if title has not passed and still is in the vendor, then his remedy is for the breach of the executory contract, and he can recover only his damages for such breach, namely : the difference between the contract price and the market value of the article ; these may range from the contract price to nominal damages, according as the market value is nothing or equal to the contract price.</p> <p>If the plaintiff attempts to take the case out of the general rule on the ground that the apparatus was manufactured especially for the defendant, and that therefore a different rule (an exception to the general rule) prevails, the defendant’s answer is : (1,) That the contract in this case is not a contract to manufacture upon the special order of the defendant, but.is a contract of sale. (2,) But if it is a contract to manufacture upon a special order, still the measure of damages is the same as in the case of the sale of an existing chattel; and (3,) That if the defendant is incorrect in his first two positions, the title to the fountain never having-passed to the defendant by the terms of the contract itself, the case does not come within the exception, as that rule of damages is only applied in cases where title is passed. Goddard v. Binney, 115 Mass. 450; Lamb v. Grafts, 12 Met. 353; Old Colony R. R. v. Evans, 6 Gray, 25 ; Griswold v. Sabin, 51 N. H. 167 ; Porter v. Travis, 40 Ind. 566 ; Thompson v. Alger, 12 Met. 428 ; BooJcwalter v. Clark, 11 Biss. 126 (S. C. 10 Fed. Rep. 793) ; Rhodes v. Cleveland Rolling Mill Co. 17 Fed. Bep. 426.</p> <p>Cases in which contrary doctrines have been supported arise Avhere title has passed to the vendee, or Avhere the manufactured article has no value; and in some cases in Ohio, where a rule exactly contrary to the one uniformly adopted elseAAdiere, prevails. Bement v. Smith, 15 Wend. 493; Ballentine v. Robinson, 46 Penn. St. 177; Gordon v. Norris, 49 N. PI. 376 ; Shawhan v.' Van Nest, 18 Am. Rep. 313; Allen v. Jarvis, 20 Conn. 38; Sedg. Dam. (2 Ed.) 281; 2 Pars. Con. 484; Field Dam. § 299 ; Benj. Sales, (4 Am. Ed.) § 1117, n. 1; P. C. & S. L. R. R. v. Heck, 50 Ind. 303. The manufacture of an article pursuant to an order of a customer does not transfer the title unless there be an acceptance of it. Moody v. Brown, 34 Maine, 107.</p>

<p> Way. Defect. Evidence. </p> <p>On the trial of an action against a town for an injury occasioned by a defect in a highway, when one of the issues in the case was the position of a plank at the end of a bridge, and whether it rendered the way unsafe for travelers, evidence that other persons with their vehicles had received injuries at the place of the alleged defect is not admissible to show that the way is defective.</p>

<p>On exceptions.</p> <p>The case appears in the opinion.</p>

<p> Way. Bridge. Navigable Waters. Nuisance. Special Laws. February 27, 1821. </p> <p>A State may, until legislation on tlie subject by Congress, authorize tlw erection of a bridge across a navigable river within the State. Until action has been taken by Congress, snch Act of the State is not repugnant to the power to regulate commerce.</p> <p>The defendant was indicted for destroying a bridge across Little River, in the town of Perry, constructed under an Act of the legislature of the State. He claimed that the legislature did not have the power to authorize its construction ; and, as it to some extent interfered with the navigation of the river, it was a public nuisance, and of special injury to him; and, therefore, he had a right to remove it. Held: That the legislature had power to authorize its construction, that it was a part of the public highway, and the defendant had no power over it.</p>

<p>Constitutional Law. Commerce. Common Carriers. ’Removal of Paupers. U. S. Const. Art. 1, § 8, cl. 3. R. 8., c. 24, § SO.</p> <p>The statute of this State, (R. S., c. 21, § 50,) requiring common carriers who bring into the State persons not having a settlement therein, to remove them beyond the State, if they fall into distress within a year, &c., is a regulation of foreign and interstate commerce, and is in violation of Article 1, § 8, clause 3, of the Constitution of the United States, and is therefore void.</p>

<p>On report.</p> <p>This was an action against the town of Tremont for a sum of money promised the plaintiff, by its vote, on account of damages to his horse, claimed to have been caused by a defect in the highway in that town.</p> <p>The writ contained a count on the town’s promise in consideration of promise of, and actual forbearance by plaintiff, to sue; a similar count on the vote of the town, also account annexed, and the omnibus count. It was admitted by the plaintiff that he gave no written notice of the injury, &c., to the defendants, as required by ft. S., c. 18, § 80.</p> <p>After the plaintiff’s evidence was closed, the presiding justice ordered a nonsuit to be entered, with an agreement that, if upon the evidence the law court should say the action could be maintained, the nonsuit should be taken off, and the case continued for trial.</p> <p>Town may vraive the statute notice. A meritorious claim, honestly made is a good consideration for a promise to forbear, &c., although a suit may not be maintained upon the original claim'. Turner v. Whidden, 22 Maine, 121; Wilton v. Eaton, 127 Mass. 174; Hovoe v. Taggart, 133 Id. 284 ; Wye v. Chace, 139 Id. 380 ; Brotan y. Ladd, 144 Id. 310 \ Whitney v. Clary, 145 Id. 156.</p> <p>Same principle applicable to towns. Bean v. Jay, 23 Maine, 117; Augusta v. Leadbetter, 16 lb. 45 ; 1 Dill. Mun. Corp. (3d Ed.) § 477; Welson v. Milford, 7 Pick. 18; Bancroft v. Lynnfield, 18 Pick. 566 ; Friend v. Gilbert, 108 Mass. 408 ; Matthews v. Westborough, 131 Id. 521, p. 522; S. C. 134 Id. 555. Money voted to pay the claim, and not as a gratuity.</p> <p>Counsel cited : Hooper v. Emery, 14 Maine, 375 ; Westbrook v. Beering, 63 Id. 231 ; Tinsman v. Belvidere R. R. 2 Dutcher (N. Ji), 148 (S. C. 69 Am. Dec. 565) ; St. Paul v. Laidler, 2 Minn. 190 (S. C. 72 Am. Dec. 89) ; Stetson v. Kempton, 13 Mass. 272 ; Opinion of the Justices, 52 Maine, 598 ; People v. Lcnorence, 6 Hill, 244; Olark v. Des Moines, 19 Iowa, 199 (S. C. 87 Am. Doc. 423).</p>

<p>Way. Appeal. S. 8., c. 18, § 48. Slat. 1885, c. 359, § 7.</p> <p>Statutes are to be interpreted with reference to tlieir subject-matter, the antecedent and subsequent legislation, and the difficulties sought to be remedied.</p> <p>The court will give effect to the legislative intent, and not defeat it by adhering too rigidly to the letter of the statute.</p> <p>The meaning of a remedial statute may be extended beyond the precise words of the act, when the reason on which the legislature proceeded, the end in view, or the purpose designed, is made clear.</p> <p>Held: That the right of appeal, from the location of a town way by the County Commissioners on the unreasonable refusal of the municipal officers, was restored by statute of 1885, c. 359, § 7; and the provisions of § 48, c. 18, of R. S., instead of § § 49 to 51, must apply to such appeals; also that the same section respecting the time for taking the appeal must prevail over section (19) nineteen.</p>

On motion and exceptions. This Avas an action of assumpsit in Avhich the plaintiff declared upon the writing given by the defendant, and which appears in the head-note. The concluding part of the count is as folloAArs : And the plaintiff avers that the said payment was to be made at any reasonable time, and whenever the plaintiff should choose, and at the customary prices for saAving lumber, at said mill.

<p>Corporations. Bailroads. Charter. Acceptance. Amendment. Eminent Domain. Location. Land Damages. Const, of Maine, Art. IV. Bart 3, § 14.</p> <p>The constitutional amendment which tools effect in 1875, requiring the formation of corporations to be under general statutes, does not apply to a charter granted by the legislature before the amendment, although amended by it afterwards.</p> <p>The four years, at the expiration of which a charter of incorporation becomes by the statute forfeited unless the company be organized and its business commenced within that time, do not run against a corporation observing the statutory requirement within that time after its charter lias been amended. The amendment is a legislative waiver of any forfeiture.</p> <p>A petition praying county commissioners to assess damages for land taken for a railrotd, need not aver the inability of the parties to agree on the amount of damages, although the charter of the railroad confers jurisdiction outlie commissioners in case the parties cannot agree on the amount. The presumption is that they cannot agree.</p> <p>A railroad charter may be considered as presumptively accepted at its date without any record evidence of the fact, when it appears that the grantees afterwards asked for and obtained amendments to their charter and have fully constructed the road.</p> <p>The right of eminent domain is available by legislative grant to a railroad corporation which has constructed a railroad for the carriage of freight to and from the lime kilns in Thomaston and Rockland, and goods to and from stores in the latter place, connecting with the Knox and Lincoln railroad and running over a portion of its track under a contract between the two corporations, being eight miles in length, of standard g'uage, operated by steam power, and costing nearly a half million dollars obtained from the sale of stock and bonds.</p>

<p> Deed. Exception. Base Fee. Beal Property. </p> <p>A conveyed toB a parcel of land reserving a store thereon, “ with the privilege of remaining as long as the store stands.” Ilehl; That the reservation (more strictly exception) constitutes a base or qualified fee in so much of the land as is necessary for the reasonable use of the store, determinable when the store ceases to remain upon the premises conveyed.</p>

On MOTION. This was an action on the case brought by the plaintiff to recover for personal injuries, both external and internal, which she received in the evening of the sixth of September, 1889, by reason of an alleged defective sidewalk in the village of Liver-more Falls, in the defendant town.

On report. This was a real action. Plea, general issue, and a disclaimer of all the locus except so much as is covered by the strips described in the defendant’s deeds, measuring them according to the defendant’s contention. The question for the determination of the court was as to the construction of deeds, which sufficiently appear in the opinion.

On motion and exceptions. This was an action on the case in which the plaintiff, a locomotive engineer in the defendant’s employ, sought to recover damages for personal injuries sustained by him.

On exceptions. This was an action of assumpsit to recover for two cargoes of ice, under a written contract which appears in the opinion of the court. The verdict was for the plaintiffs, for the full contract price with interest.

On exceptions. This was a petition of William Dean, an alien, praying for admission to citizenship. The petitioner came to the United States from England after he was eighteen years of age and more than five years before the date of his petition, intending to become a citizen, and has over since resided in the United States. More than two years prior to this hearing he had made and filed a declaration of his intention to become a citizen.

On exceptions. Action of assumpsit to enforce a lien claim. The plaintiff was a mason, and this action was brought to enforce his alleged lien claim against buildings and land. Mrs. M. J. Van Doren, the owner of the buildings and land, appeared in defense. The verdict was for the plaintiff, that he had a lien as alleged in the sum of four hundred and sixty-six dollars and fifty-seven cents, and thereupon the principal defendant was defaulted for that amount.

On exceptions. This was an appeal by complainant from an award of damages in a proceeding by the city of Rockland to locate and establish the bounds of Main street in said city, which had never been legally established. The complainant owned a lot of land on the west side of said street on which a building had been erected and which had remained in the same location and condition for at least thirty-five years.

On exceptions. Petition for certiorari. The petition dated February 26, 1887, for the laying out of a road from New Sweden to Fort Kent, in Aroostook county, under the provisions of § 41, chapter 18, of Revised Statutes, was presented to the County Commissioners, at their adjourned January term, 1887, held on March 14, 1887, when they determined that there ought to bo a hearing on said petition., and ordered notice to be given for a hearing on June 6, 1887,, which notice was…

On motion and exceptions. This was an action of trover, brought by Albert Stirk of Boston, against the sheriff of York county for the conversion of a lot of circus property by one of his deputies who had attached the goods on a writ in favor of one Yates against one Wood.

Facts agreed. This was an action of debt brought in the Norway Municipal Court, under E. S., c. 6, § 141, to recover a tax of the defendant, who appealed from the judgment rendered against him by that court to the Supreme Judicial Court, where the parties submitted the case to the full court upon the following statement of agreed facts: Norway Village Corporation is legally organized under the act creating said corporation, and the acts amendatory thereof-Joseph W. Parker,…

On 35XCEPTIONS. The case is stated in the opinion. The merits of a judgment can never be impeached or questioned in a counter action, by the judgment debtor, either directly or collaterally. Pease v. Whitten, 31 Maine, 117. Although judgment may be collaterally impeached when erroneously rendered to the prejudice of the rights of third parties, who have neither right to review nor to reverse judgment by writ of error, the rule does not extend to parties to the judgment.

On report. Bill in equity, heard on bill, answer and proof. This was a suit in equity to restrain the defendant from prosecuting her suit at law to recover dower in certain real estate, situated at Bar Harbor, known as the St. Sauveur Hotel. Since the filing of the bill, the action at law was decided by the full court in favor of the defendant, and sustaining her claim for dower. See Chase v. Alley, 82 Maine, 234, where the opinion of the court states the material facts.

On exceptions. This was a proceeding on a writ of certiorari, granted on the petition of the inhabitants of Phillips wherein they asked the court to quash the records of the court of county commissioners, for Franklin county, of the location by the commissioners of a highway in said town on petition of Scott Hodgkins and others.

On exceptions. This was an action on the case in which the plaintiff declared as follows : For that the said defendant, at said Lewiston, on the 10th day of January, 1889, was the owner of a certain building situated on the easterly side of Lisbon Street, in said Lewiston, and numbered 292 ; that a certain tenement in said building was then and there let by the defendant to one Sampson, who occupied the same as a dwelling-house; that said tenement was up-stairs, and the way…

On report. Bill in equity, heard on bill and answers, brought by the trustee to obtain the construction of the will and codicils of Jacob C. Smith, late of Bang'or, deceased. Complainant submitted the case without argument.

On exceptions. This was an action of replevin brought by the plaintiff’, as assignee in insolvency of A. P. Cleveland, against the defendant, to recover the possession of a soda-fountain and other articles of personal property. He claimed they were kept and-detained by the defendant, by virtue of a mortgage, void under the insolvent law because not seasonably recorded.

<p>On exceptions.</p> <p>This was a petition for partition of an island in Penobscot Bay. The case was tried by the presiding justice, without a jury, and he gave judgment for the plaintiff and ordered partition of tiie island as prayed for. To this decision and the exclusion of certain evidence offered in defense, and to be found in the' opinion, the defendant excepted.</p> <p>The case is stated in the opinion.</p>

<p>Dogs. Pleading. Due Care. Superior Court. S. S., o. 30, § 1.</p> <p>In an action under R. S., cli. 30, § 1, to recover for an injury done by a dog-kept by tlie defendant, the plaintiff need not alleg-e and prove in the first instance, his own due care in the matter. The plaintiff makes out a primo faene case by proving that lie was injured in person or property by a dog kept by the defendant.</p> <p>The Superior Court for Aroostook County has jurisdiction of personal actions and may award judgment therein for the plaintiff to the amount of five hundred dollars; although the jury returned a verdict for single damages which upon being doubled, under the statute, exceeds that sum.</p>

<p>ÜN REPORT.</p> <p>The case id stated in the opinion.</p> <p>Counsel cited : Marrett v. Brackett, 60 Maine, 527 ; Olcott v. Rathbone, 5 Wend. 490; Strang v. Hurst, 61 Maine, 9; Banco v. Third National Bank, 13 Allen, 445; Robbins v. Bacon, 3 Maine, 346; Adams v. Robinson, 1 Pick. 462; Bullard v. Rcindcdl, 1 Gray, 605 ; Gibson v. Cooke, 20 Pick. 15 ; Schider v. Laclede Bank, 27 Fed. Pep. 424; Bradford v. Fox, 38 N. Y. 289 ; Kelly v. Second National Bank of Erie, 52 Barb. 328; P. S., of IT. S. § 5136, Art. 7 ; Reynolds v. Craufordsvidle National Bank, 112 IT. S. 405; Bank v. Matthews, 98 IT. S. 628 ; Bank v. Whitney, 103 IT. S. 99; Swoye v. Leffinqwell, 105 IT. S. 3 ; Silver Lake v. North, 4 Johns. Ch. 370.</p> <p>Counsel cited: Whitney v. Esson, 99 Mass. 308 ; Fernald v. Bush, 131 Mass. 591; Warden v. Tucker, 7 Mass. 449 ; Phoenix Bank v. Hussey, 12 Pick. 483 ; Ocean Nat. Bank v. Williams, 102 Mass. 143; Ticonic Bank v. Staclcpole, 41-Maine, 304; Oreen v. Jackson, 15 Maine,. 136; Freeman’s Bank v. Perkins, 18 lb. 292; Mechanics Bank v. Merchants Bank, 6 Met. 13 ; Fabens v. Mercantile Bank, 23 Pick. ,330; Mer. Wat. Bank v. Samuel, 20 Fed. Rep. 664.</p>

<p> Municipal Corporation. Sewers. Ratification. Damages. </p> <p>In an action on the case to recover damages for the alleged unlawful location, construction and maintenance of the extension of a sewer Delow low-water mark in the Penobscot River, in the city of Bangor, whereby the plaintiffs claimed that their dock was rendered less valuable from the liability of vessels grounding on the end of the sewer, and on the sediment flowing out of it, also a diminution of rents of the plaintiffs’ wharf because of the noxious smells arising from the sewage, it appeared that the wharf and dock, during all the time, were in the possession and use of the plaintiffs’ tenants who had suffered no diminution of rents. Held; that the city had a legal right to extend its sewer over the plaintiffs’ flats to a point below low-water mark; that in locating the sewer the city council acted judicially and that the city would be liable only for an improper construction or maintenance of it.</p> <p>Held, also, that if the sewer was improperly constructed, it was a temporary injury for which the plaintiffs could not recover in this action.</p>