Volume 84 — Maine Reports

On report. This was a real action for the recovery of an island in Frenchman’s Bay, near Bar Harbor, Mt. Desert, known as Bound or Bald Porcupine and Wheeler’s Porcupine. Both parties agreed that the title at some time prior to the separation of Maine from Massachusetts, was in the latter State. The case is stated in the opinion.

This was a real action to recover certain flats between high and low water mark at Bar Harbor. The locus as shown on the plan is marked A, B, C, and D. Both parties claimed under the same grantor whose deed is sufficiently stated in the opinion. The demandant contended that his seaward line is low water mark and the defendant that it is the high water mark.

On exceptions. This was an action brought against the city of Lewiston to recover damages sustained by reason of an alleged defective condition of one of its ways.

On report. This was a petition for Habeas Corpus presented to Haskell, J., in chambers at Portland, who ordered notice to the County Attorney of York county, returnable before him at chambers in Portland, July 11, 1891, when and where the parties by their respective counsel appeared. The case was docketed in Cumberland county under the act of 1887, c. 16, and upon hearing the following facts appeared.

On report. Two actions of trespass for wrongfully placing and maintaining obstructions across the plaintiffs’ right of way across the defendant’s lands.

On motion. The case is stated in the opinion. After verdict for the plaintiff, the defendant filed a general motion for a new trial. cited : Farrar v. Greene, 32 Maine, 574; Smith v. Smith, 2 Pick. 621; Marble v. Ross, 124 Mass. 44; Brown v. Kendall, 6 Cush. 292; Moulton v. Sanford, 51 Maine, 127 ; Perkins v. Fayette, 68 Maine, 152; Lovenguth v. Bloomington, 71 111. 238; Chicago v. Bixby, 84 111. 82; Vicksburg v. Hennessey, 54 Miss. 391; Weisenburg v. Appleton, 26 Wis. 56 ;…

<p>Will. Trust. Besidue. Trustees’ Bond. B. 8., c. 68, § 2.</p> <p>A testator, after making certain specific legacies by his will, disposed of the rest of his estate as follows : “ Item 4. At my decease, I direct my executors to hold the balance of my property that 'may remain after paying the amount named in this will, to each of my three daughters, for the benefit of my son, R. H. Thompson. I direct my executors to pay my son only the income of five thousand dollars during his natural life, provided, however, there should be five thousand dollars left after paying my three daughters the amount named in this will. If there should be a surplus left after paying all the above sums named in this will, I direct my executors to divide the sum if any, among my four children, one quarter to each. I will here say to my executors, that in case my son should become a sober and a man of good habits, and they should think it would be for his interest to let him have a part or the whole of the property I have left him, they may do so. I leave them to be the judges. I will here inform my executors that my son has had in cash from me, since he was twenty-one years old, upwards of five thousand dollars, the account of the same may be found in my trunk.”</p> <p>Held: That the five thousand dollars, specifically named, is clearly devised in trust to be held for the benefit of the son upon the terms and conditions stated; that on the settlement of the estate the executors will become trustees by operation of law; and whether they should give bond as such is a question to be first determined by the Probate Court. Held, also, that no trust is created as to the son’s interest in the residue of the estate.</p> <p>Upon a bill in equity to determine the construction of a will, the court does not decide questions relating to the validity of assignments made by beneficiaries under the will.</p>

On motions and exceptions. This was an action of trover to recover certain goods and chattels claimed by the plaintiff as adminstrator de bonis non, of the estate of Benjamin Lowell, deceased. The verdict was for the plaintiff, and the defendant filed exceptions and a general motion for a new trial.

On report. The case is stated in the opinion. No appeal from estimate of damages lies to the county commissioners, since Stat. 1885, c. 359, this being the sole appellant court. Their return should show that they acted as is provided respecting highways,” on Roberts’ petition to annul selectmen’s proceedings, or be allowed damages. Return must disclose the facts on which jurisdiction is founded.

On exceptions. The defendant’s demurrer to the following indictment having been overruled by the court, with permission to plead anew, if the indictment should be sustained, he excepted to the ruling.

<p>On report.</p> <p>This was a petition for mandamus brought to have the court determine the time when the registration act, c. 34 of 1891, became a law, and the mayors of the cities could act under it in the appointment of members of the board of registration.</p> <p>Tlie petitioner alleges that on the seventh day of May, 1891, the Republican City Committee of Watervilie, in compliance with the act, gave due notice to the mayor of the city, that he had been nominated by said committee, a member of the board, and that the committee requested his appointment according to the provisions of the act; that the petitioner is a member of the Republican party, which was the political party polling the highest number of votes for governor at the preceding state election ; and that the mayor had neglected and refused to make the appointment, as notified and requested to do, and as required by said act.</p> <p>After notice, the respondent appeared and answered that he had in all respects complied with the act; that on the fourth day of May, 1891, the Republican City Committee having neglected to nominate any person for the board of registration, he, the mayor, in performance of his duty under said law, had selected, appointed and commissioned Reuben Foster of Watervilie, to be a member of said board bn the part of the Republican party, . . . and said Foster had accepted and "now holds said commission,— all before the filing of this petition.”</p> <p>The defendant contended that the legislature intended that sections one and two of the act, relating to the organization of the board of registration, took effect immediately, by force of their terms, upon the approval of the act; and that more than seven days thereafter having elapsed without any nomination being made by the Republican City Committee, the act required him as mayor to make the appointment.</p> <p>The petitioner contended that the act, as a whole, did not go into operation until May 4, 1891, thirty days after the adjournment of the legislature, which was April 3, 1891; and, therefore, Foster’s appointment was premature and invalid.</p> <p>Sections one, two and fifteen of the act are as follows :</p> <p>"An act to provide a board of registration in the cities of this State.</p> <p>"Be it enacted by the Senate and House of Representatives in legislature assembled, as follow's :</p> <p>"Section 1. A board of registration is hereby established in each city of the State which shall have the exclusive power and authority to determine the qualification of voters therein, and exclusive power to make up, connect and revise the list of voters in each of said cities, and shall perform all the duties and have, exclusively, all the powers now exercised by the municipal officers of said cities in making, preparing, revising and correcting the list of voters therein under chapter four of the Revised Statutes or any other statute relating thereto.”</p> <p>"Section 2. Said board shall consist of three members who shall be residents and legal voters of the city where such board is established, one of whom shall be appointed and commissioned by the governor by and with the consent of his council for a term of four years, but the first term shall expire May 1, 1895, and who shall not hold or be eligible to any elective municipal office during said term. Said member of said board shall be appointed immediately upon the approval of this act. The other two members of this board shall be chosen one from the political party polling the highest number of votes for governor in this State at the next preceding State election and one from the political party polling the next highest number of votes for governor of this State at said election and they shall each hold their office for the term of two years, but the first term shall expire May 1, 1893, and said members shall not hold or be eligible to any elective municipal office during said term. Each shall be nominated by the city committee of his own political party and upon due notice thereof in writing, the several mayors of said cities shall forthwith appoint such persons so nominated members of said board. If either or both of said political parties for the space of seven days after the approval of this act or after a vacancy occurs in such board by its said committees, neglects or refuses so to nominate a member of such board and to notify the mayor of such city thereof said mayor shall select and appoint a member of said board from the political party so neglecting and refusing to nominate. And in case any member of said board so appointed by said mayor, neglects or refuses to act as a member of said board the other two shall proceed with the business of this board as provided by this act in his absence. And if any member of said board be absent or disqualified by sickness such mayor may fill his place for the time being by the appointment of some qualified elector of said city of the same political party as the absent member represents.” .</p> <p>" Section 15. Section forty-seven, chapter four of the Eevised Statutes and all other acts and parts of acts inconsistent herewith, are hereby repealed. But the provisions of this act shall not apply to the municipal elections of the year 1891, in any of the cities in which such elections are held, or to the preparation and revision of the lists therefor.”</p> <p>At the hearing which took place in vacation July 31, 1891, in Kennebec, the petitioner filed in evidence, and admitted de bene, documentary testimony, as follows : Original draft of billas presented to the legislature and reported from committee, copy of new draft, copy of amendments, and of original bill as passed. By the latter it appears that the words, "Section 16. This act shall take effect when approved,” had been stricken out.</p> <p>A preliminary question of procedure, whether the court could pass upon Foster’s right to hold the office in question either on this petition or any alternative writ, was argued by counsel. The view of the case taken by the court renders a report of the argument unnecessary upon this branch. The authorities cited by counsel will be found below.</p> <p>The presiding justice, finding no dispute as to the facts, reported the case to be heard at the July term of the western district of the law court.</p> <p>The bill passed substantially the same as the new draft, with the Avords, "take effect when approved,” being stricken out. This shows the legislature intended to bring the act within E. S., c. 1, § 5. Documentary evidence admissible : Endlicli, § § 1, 27, 30, 34, 509 and 510 ; Bishop Stat. Crimes, § § 70,74; Swift v. Luce, 27 Maine, 285 ; Farrell Foundry Co. v. Dart, 26 Conn. 376; Com.v. Churchill, 2 Met. 118; State v. Brooks, 4 Conn. 446. If the act comes within E. S., c. 1, § 5, nothing " effective ” under it can be done prior to May 4. Bish. Stat. Crim. § 31; Prince v. Hopkins, 13 Mich. 138 ; McArthur v. FrankUn, 16 Ohio St. 193 ; People v. Johnson, 6 Cal. 673 ; Com. v. Fowler, 10 Mass. 290 ; Endlich, § § 496, 498-9 ; Gorham v. Springfield, 21 Maine, 58 ; Simmons v. Jacobs, 52 Id. 158 ; New Portland v. New Vineyard, 16 Id. 69 ; Holmes v. Paris, 75 ici. 559 ; Sedg. Stat. & Const. Law, 2d Ed. p. 67, citing Kennedy v. Palmer, 6 Cray, 316, that a law speaks from the time of its going into effect. Jackman v. Garland, 64 Maine, 133 ; Winslow v. Kimball, 25 Id. 493 ; Palmer v. Hixon, 74 Id. 447; Damon’s Appeal, 70 Id. 153; Com. v. Bennett, 108 Mass. 31; Gray v. Co. Com. 83 Maine, 429.</p> <p>A statute is a nullity until it takes effect; and where there is no expressed provision in the statute itself as to when it takes effect, it must take effect by virtue of the genei’al law. In considering the legislative intent as to when this statute would take effect, the history of its enactment as shown by the record, shows that the phrase used in § 2 providing that certain members of the board of registration should be appointed within seven days after the act was approved, was drawn with reference to a statute that should take effect when approved; and that the legislature, when it struck out the section providing that the act should take effect when approved, made that part of the act inconsistent with the terms of the general law ; and while it was an oversight in the legislature in not changing § 2 to correspond with the striking out of the provision making the statute take effect when approved, yet the rule remains that the legislature had the right to presume that a court would consider it with reference to the established rules of construction of statutes; which would not be to give effect to any part of the statute until the period of thirty days after adjournment had passed. Seven days after the approval of the act must be held to mean seven days after the act took effect.</p> <p>Mandamus: 3 Bl. Com. 110; Sanger v. Co. Com. 25 Maine, 259 ; High Ext. Leg. Rem. § § 35, 49, 80, 81, 88, 108, 113, 118, 119, 133--6, 144, 324, 688, 689, 690, and cases cited; French v. Cowan, 79 Maine, 426; Dill, Mun. Corp. 4th Ed. § § 215, 844, 846, and cases cited; Tremont v. Cr'eppen, 10 Cal. 212 (70 Am. Rep. 711) ; Hildreth v. Mclntire, 1 Marsh. (Ky.) 206; 19 Am. Dec. 63.</p> <p>Mandamus: Field Corp. § 52 ; People v. Staples, 5 Hill, 615 ; People v. Detroit, 18 Mich. 338 ; Denver v. Hobart, 10 Nev. 28 ; Meredith v. Supervisors, 19 Am. Dec. 502 ; Clark v. Winchester, 24 Barb. 446 ; Conly v. Calhoun Co. 2 ~W. Ya. 417 ; French v. Cowan, 79 Maine, 426; High Ext. Rem. § § 52, 53 ; King v. Mayor of Colchester, 2 T. R. 260. Legislative intent controls. Jackman v. Garland, 64 Maine, 133 ; Endlich, § 23 and cases cited ; Damon’s Appeal, 70 Maine, 156 : Stone v. Charlestoion, 114 Mass. 228. If § § 1 and 2, did not go into effect until the thirty days’ period arrived, we could have no registration board for a long time ; and the act i-epeals all previous statutes. And when would the seven days begin to run ? Giving effect to all parts of the act, according to the authorities, it must be from the time of approval.</p> <p>The last section of this act clearly indicates that the legislature intended that the organization of the boards of registration should be perfected before the thirty days’ limit expired, because it specially provided that the board should not act in preparing the lists for the last spring elections in the several cities. These elections all take place in March, and if by the act it was intended that these boards should not be organized till the expiration of thirty days, at least, after the legislature adjourned, there would have been no need of this provision, because under the thirty days’ theoiy no part of the act w'ould take effect till May 4, which would be long after all the spring elections had taken place, as the legislature adjourned April 3, and the thirty days’ period would last to the fourth of May. So we find the act, at the beginning and at the close, containing clear and unmistakable evidence that the legislature intended that the law' should take effect so far as the organization of the registration board was concerned, when approved by the Governor.</p>

On report. This was a bill of interpleader to obtain the construction, by the court, of the respective rights and duties of the parties under the different trusts, set forth in the bill, which arose in the settlement of the estates of the late John W. Veazie, and his son Alfred.

<p>Ao REED STATEMENT.</p>

<p>Action. Husband and wife. Limitation. B. S., c. 61, §5; c. 81, § 88; c. 87, §12.</p> <p>Upon a promissory note given by a husband to his wife, an action may be maintained if begun within six years after her decease and within two years and six months of due notice given of the appointment of his executor.</p>

On exceptions. A verdict for the defendant having been rendered at the trial in the Superior Court, the plaintiff brought his exceptions .to the rulings and instructions of the presiding justice for determination of the law court. The view taken by this court renders a full report of the bill of exceptions unnecessary.

<p>Attachment. Exempted property. B. S., c. 81, § 62. cl. 9.</p> <p>A merchant, who has plows and harrows for sale, cannot claim one plow and one harrow exempt from attachment when he is duly declared insolvent.</p>

On motion and exceptions. This was ail action of trover for a buckboard. Date of writ, October 10, 1890. The plaintiff’s title was under a Holmes note from Thomas T. Dorr, dated June 25, 1887, recorded July 29, 1887. The defendant’s title was under a sale and delivery of the buckboard from Dorr to one Penney and from Penney to the defendant. It was not disputed that the defendant purchased in good faith. From the bill of exceptions it appears : 1.

<p>Probate. Plane administrara. B. S.,e. 64, § 43; c. 66, § § I, 2 ; c. 71, §22.</p> <p>In an action against an intestate estate, in the hands of an administratix de bonis non, the defense that the unadministered assets which came into her hands from her predecessors were exhausted in discharge of the preferred debts, must be sustained, if at all, by regular probate proceedings.</p>

<p>Mortgage. Foreclosure. Discharge. B. 8., c. 90, $ 5.</p> <p>The attempted foreclosure of a mortgage of land by publication under R. S., c. 90, § 5, is fatally defective, if the certificate recites that the notice was given in a newspaper “ published ” instead of “printed” in the county where the premises are situated. It is also defective unless the “ date of the newspaper in which the notice was last published ” was recorded.</p> <p>A mortgage and note secured thereby, was to become void either by payment of the note or “if the said mortgagee should die before the note is paid, then this deed and note are nuil and void.” Held; That the mortgage became void upon the death of the mortgagee before payment of the note.</p>

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

<p>Way. Location. Notice. Certiorari. Lt. 8., c. 18, § § 9, 14, 19, 26-</p> <p>After notice on tlie petition for a town way was ordered and complied with,, a railroad company purchased for fuel a lot of woodland across which the road was subsequently located; Held, That a writ of certiorari will not be. issued to quash the proceedings of the location, simply because no “ notice of the time and place of hearing upon the location was served upon the. station agent of the railroad in the town,” as prescribed in R. S., c. 18, § 26:.</p>

On motion and exceptions. The case which came from the Superior Court, for Kennebec County, on plaintiff’s motion and exceptions, is sufficiently stated in the opinion.

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

<p>The principle of the preceding case applied.</p>

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

<p> Pleading. Practice. Exceptions. Motion in Arrest. </p> <p>Tlie defendant was convicted before a magistrate for a single sale of intoxicating liquor and after sentence appealed to the Supreme Court. Upon being arraigned in the appellate court, he filed a general demurrer, claiming that the appeal papers consisting of copies of the record of judgment, complaint and warrant were not properly certified by the court below, and concluded his demurrer as follows : “ Wherefore, for want of a sufficient complaint and warrant in this behalf, the said David Kyer, Jr., prays judgment,” &c. The demurrer was overruled. The defendant without moving an arrest of judgment excepted to the ruling. Held: That the demurrer did not reach the record of conviction, and that the complaint and warrant only were open to objection; also, that the defect should be raised upon motion in arrest of judgment.</p>

<p>On exceptions.</p> <p>The defendant filed a general demurrer to the declaration, which was in assumpsit upon two promissory notes both of which were dated Sunday. Upon joinder by the plaintiff the court overruled the demurrer and the defendant excepted. If the exceptions were overruled, it was stipulated that judgment should be rendered for the plaintiff.</p> <p>The case sufficiently appears in the opinion.</p>

<p>Sunday Law. Contract. Tort. B. S., c. 82, § 116; c. 124, § 20.</p> <p>Revised Statutes, c. 82, § 116, applies to actions of assumpsit on the contract even though the consideration cannot, in the nature of things, be restored. It does not apply to actions for negligence, but leaves the Sunday law (R. S., c., 124, § 20,) in full operation as to them.</p>

On motion and exceptions. This was an action on the case which Ida M. York brought against the defendant corporation to recover damages for personal injuries which she received July 31, 1888, caused by the rear division of a freight train making a flying-switch at a grade-crossing near East Newport. She having died before the trial, her administrator prosecuted the suit. The case proceeded to a trial on a plea of the general issue.

On report. Assumpsit upon a promissory note given by the defendant at Monson, Piscataquis county, March 31, 1888, payable to the plaintiff, then a resident of the same town, at the Kineo National Bank of Dover, in said county. The writ is dated August 30, 1890. The plaintiff removed April 15, 1889, from the State to New York where he has ever since been a citizen of that State, residing at Cortland.

<p>On report.</p> <p>Replevin of a stable or wooden building which the defendant attempted to remove from the premises of the plaintiff. The defendant denied the taking and for a brief statement alleged, that at the time of the supposed taking the said stable was not the property of the plaintiff but was then the property of the defendant; that if not the property of the defendant then it was the property of Woodcock and Ames, whose agent the defendant then was and as whose agent he then acted, &c., and said property at the time of the supposed taking was real estate and not capable of being the subject of replevin.</p>

On EXCEPTIONS. This was indictment under c. 306, stat. of 1889, for illegal taking of menhaden. After verdict against the defendant he moved in arrest of judgment. The motion was overruled by the court and the defendant excepted thereto and to the instructions of the court to the jury, which are sufficiently stated in the opinion.

<p>Pleading. Waiver. Discharge in Insolvency. B. 8., c. 70, § 49.</p> <p>It is too late for a plaintiff to raise objections to the insufficiency in form of a plea in bar, after issue has been joined and evidence has been put in under the plea.</p>

On exceptions. This was an action of assumpsit. Besides a count upon an account annexed there were also in the declaration two counts upon special promises and a count on a special contract of bailment to the defendant to receive, make up and return at his risk a certain quantity of coats to the plaintiff, which were destroyed by fire while in the defendant’s possession under the contract.

<p>Limitations. Executors and Administrators. Agent or Attorney. It. 8., c. 64, § § 9, 12, 38, 40, 41; c. 87, § § 12, 18.</p> <p>When joint executors, one of whom resides out of the State, when appointed, give a joint notice only of their appointment, and omit to insert therein the name and address of the agent or attorney in the State of the latter, they cannot avail themselves of the special statute of limitations in an action against the estate of their testator.</p>

<p>On report.</p> <p>The ease, which came up from the Superior Court for Kennebec County, is stated in the opinion.</p>

On exceptions. The court ruled as matter of law that the plaintiff upon the facts, as stated in the opinion, was entitled to recover, and the defendant excepted. When one employs another to act for him, the employee has a right to assume (in the absence of restrictions to the contrary) that the business is to be executed in the way and manner such business is usually and ordinarily conducted.

On motion and exceptions. In this action of trover, the plaintiffs recovered a verdict for the full value of ninety-one cases of wooden toothpicks and the defendant filed a general notion for a new trial, and also excepted to the admission of evidence offered by the plaintiffs on the question of their value. It appeared at the trial that, after this action had been brought, the same property had been subsequently attached in a suit against the plaintiffs.

<p> Waters. Great Ponds. lee. Title. </p> <p>The lessee of a portion of the shores of a great poncl, who without scraping the snow from the ice thereon, erects stakes with his name thereon around nearly one half the pond, does not thereby acquire such a right to the ice thus inclosed as will enable him to maintain trover against an Ice Company which, previous to the formation of the ice, removed the lily-pads, scraped off the previous snows, bored holes in the ice to let off the surface water and proceeded to harvest the ice against the written protestation of the plaintiff.</p>

On motion and exceptions. This was an action tried in the Superior Court, for Kennebec County, to recover damages for personal injuries sustained by the plaintiff, a workman in employ of the defendant corporation, while handling timber which fell upon him and broke his leg.

On retort. The parties agreed, that if the plaintiff sustained his claim at the law court, damages were to be settled by the clerk, otherwise a nonsuit to be entered. This was an action of assumpsit, with account annexed for intoxicating liquors sold and delivered; the defendant pleaded the general issue, with brief statement, alleging that the sale was in violation of the law and statutes of this State. The facts are fully stated in the opinion.

On report. Bill in equity to obtain the construction of the second item of the will of Isabella Gr. Andrews, deceased. The case is stated in the opinion. Counsel cited, inter alia: Martin v. Smith, 124 Mass. Ill; Soulard v. U. S. 4 Pet. 511; Belassus v. U. S. 9 Id. 117; Smith v. U. S. 10 Id. 326; Holbrook v. Brown, 2 Mass. 280; Whiton v. Ins. Oo. 2 Met. 1; Goreley v. Butler, 147 Mass. 8; Williston Seminary v. Oo. Qom.

<p>On report.</p> <p>This was a real action tried by the presiding justice without a jury. The matter in dispute is the dividing line between the plaintiff’s land and the land of the defendant. The plaintiff’s land lies in the extreme northwest corner of Skowhegan, and the defendant’s in the extreme southwest corner of the adjoining town of Cornville.</p> <p>The plaintiff claimed that the line between the two towns is the line between his and the defendant’s land; that in 1867 the 'line between the two towns was ascertained and determined by commissioners appointed by the Supreme Judicial Court; and that the line so ascertained and determined is to be deemed in every court, and for every purpose, the true dividing line between the towns; that such is the express language of the E. S., c. 3, § 67.</p> <p>To this the defendant replied that, while such may be the law when the line, as a town line is called in question, such is not the law when the line between the owners of private lands is in question; and without admitting that the line established by the commissioners is the true town line, or that their proceedings were regular and according to law, he claimed that for more than forty years a fence has existed between his land and the plaintiff’s, up to which he and those through whom he claims-have occupied, openly, notoriously, exclusively and adversely,, thereby establishing the line of said fence as the true and legal line between their lands.</p> <p>The presiding justice viewed the premises, heard the evidence,,, and then, by consent of the parties, reported the case to the law court for decision.</p> <p>The town line, between the two towns, is the true line between-the parties. R. S., c. 3, § 67; Bethel v. Albany, 65 Maine,. 200 ; and conclusive upon the parties. It has been ascertained by proper persons and under proper process. Defendant knew from his deeds he bought to the town line, recognized as the division, line. Adverse possession: Worcester v. Lord, 56 Maine,, 265 ; Dow v. McKenney, 64 Id. 138. Defendant has no title beyond his deed and cannot claim beyond it. Qarville v. Hutchins, 73 Maine, 227.</p> <p>Plaintiff has failed to show by competent evidence where the town line was. Commissioner’s report not admissible. Court did not give notice to all parties concerned before appointing them, but to the selectmen only. Plaintiff has not shown that the town line is north of the fence, or that the right of entry, if one ever existed, accrued within twenty years.</p> <p>Adverse possession: Chaplin v. Barker, 53 Maine, 275; Alternas v. Campbell, 9 Watts, 28 (S. C. 34 Am. Dec. 496) ; Johnson v. Irwin, 3 S. & R. 291; Boyer v. Benlow, 10 S. & R. 303 ; Prop’rs Ken. Pur. v. Springer, 4 Mass. 418 ; Spar-hawk v. Bullard, 1 Met. 100; Barker v. Salmon 2 Met. 32 ; Bates v. JSTorcross, 14 Pick. 224; Sumner v. Stevens, 6 Met. 337, approved in Jewett v. Hussey, 70 Maine, 435 ; Lockwood v- Lawrence, 77 Maine, 297; Martin v. M. G. JR. JR. Go. 83 Maine, 100, and cases cited.</p>

On report. This was an assumpsit upon a promissory note, dated March 8, 1888, given by the defendant to Loantha J. Parkman and by her proved in the composition proceedings in insolvency, of the defendant, begun on his petition tiled January 7, 1889, and under which he received his discharge July 11, 1889. The writ is dated July 12, 1889. Plea, general issue and brief statement of defense setting out the discharge by the court of insolvency.

<p>Will. Devise. Descent. Lapsed Legacy. B. S., c. 74, § 10.</p> <p>A testator by the fifth item of his will made the following bequest: “I give and bequeath to the children of Lydia Pullen, late wife of the late Alvin Pullen, deceased, and grandchildren of my late sister, Betsey S. Burbank, deceased, the sum of seven thousand dollars to be equally divided between them.” Betsey S. Burbank was a sister of the testator, and she left three children living at the testator’s death; also one daughter, Lydia Pullen, who was dead at the time the will was made. This daughter left one son, Eldon H. Pullen and three grandchildren, — children of another son who was deceased. Held, that Eldon H. Pullen takes one half, and the three grandchildren the other half, of the seven thousand dollar bequest made “ to the children of Lydia Pullen.”</p> <p>Any legacy which was intended for the father of the three grandchildren of Betsey S. Burbank, although he was not living at the time the will was made would not lapse, but would go to his lineal descendents under R. S., c., 74, § 10, which provides that when a relative of the testator, having a devise of real or personal estate, dies before the testator, leaving lineal descendents, they take such estate as would have been taken by such deceased relative if he had survived.</p> <p>The testator also bequeathed to Hiram Hackett all the neat stock, sheep, horses, colts, swine and other animals . . . which he owned at the time of his decease. Held, that the intention of the testator was to give not only the sheep upon the home farm, but also all those which he owned on other farms.</p>

<p>On report.</p> <p>This was an action of forcible entry and detainer brought in the Police Court, of the city of Belfast, and removed to this court on brief statement of title under E. S., c. 94, § 6. The only question presented for decision was that of title. The plaintiff’s title rested upon the validity of two tax deeds.</p> <p>The property in controversy, was sold by the collector of taxes of 1880 and 1883, and purchased at the tax sales by the town of Stockton, from whom the plaintiff derived title.</p> <p>The deed under the second sale is as follows :</p> <p>" Collector’s Tax Deed. State of Maine. To all people to whom these presents shall come, I, F. E. Daggett, collector of taxes for the town of Stockton in the county of Waldo and State of Maine, for the year one thousand eight hundred and eighty-three, legally chosen and sworn, send greeting :</p> <p>"Whereas, the assessors of the town of Stockton for the year aforesaid, legally chosen and sworn, have, agreeably to law, assessed the real estate hereinafter described in the sum of fourteen dollars and three cents, taxed to Melvina Dickey as resident proprietor of said real estate in said Stockton, which in their list of assessment they have committed to me, collector of said town, to collect, and whereas no person has appeared to discharge said tax, although I have advertised the same by posting notices of the non-payment of said tax after it ha'd remained unpaid for the term of nine months from the date of said assessment, and of my intention to sell so much of said real estate as would be necessary to discharge said tax and all intervening charges, at three public places in said town where warrants for town meetings are required to be posted, six weeks before the day of sale; and have lodged with the town clerk a copy of such notice with my certificate thereon, that I have given notice of the intended sale as required by law; and at least ten days before the sale I delivered to the owner or occupant thereof, a written notice signed by me, stating the time and place of sale and the amount of taxes due.</p> <p>"Thei-efore, know ye, That, I, F. E. Daggett, collector of taxes, as aforesaid, in consideration of the sum of fifteen dollars and fifty-three cents, to me paid by the inhabitants of Stockton in the county of Waldo and State of Maine, have granted, bargained and sold, and do hereby grant, bargain, sell and convey to the said inhabitants of Stockton their heirs and assigns forever, the following described real estate situated in said town of Stockton, viz. : — The Melvina Dickey homestead on east side of turnpike road in Lot No. 9, eighty acres of land with buildings thereon, valued at seven hundred and fifty dollars ;</p> <p>" The same having been struck off to the said inhabitants of Stockton, they being the highest bidder therefor, and it being-necessary to sell said amount of real estate so assessed and advertised, no person offering to pay the taxes and legal charges for a smaller fractional part of said real estate, at a public auction, legally notified and holden at the selectmen’s office in said town of Stockton on the ninth day of June, 1885.</p> <p>"To have and to hold the same to the said inhabitants of Stockton their heirs and assigns, to their only proper use and behoof forever, subject however to the right of redemption which the owner thereof or any other person may have at any time within the time specified by law.</p> <p>"And I do covenant with the said inhabitants of Stockton their heirs and assigns, that I gave notice of the intended sale of real estate according- to law, that said sale was within two ^ears after the warrant for the collection of said taxes was delivered to me, and that in all respects in the premises I have observed the directions of law, whereby I have good right and full power to sell and convey the premises to the said inhabitants of Stockton to hold as aforesaid.</p> <p>"In witness whereof, I have hereunto set my hand and seal, in my capacity as collector aforesaid, this thirteenth day of June, Anno Domini one thousand eight hundred and eighty-five.</p> <p>F. R. Daggett, Collector. (Seal)</p> <p>"Signed, sealed and delivered in the presence of Alex’r Black.</p> <p>"State of Maine, Waldo, ss. June 13, 1885. Then personally appeared the above named F. R. Daggett, Collector, and acknowledged the above instrument to be his free act and deed, before me, Alex’r Black, Justice of the Peace.”</p> <p>Other facts are stated sufficiently in the opinion.</p> <p>The proceedings up to the time of the sale being regular and legal, the introduction of the collector’s deed duly executed and recorded, and the deed from the purchaser at the tax sale to the plaintiff make a prima facie case for the plaintiff; and the defendant not having deposited the amount of taxes, interest and costs accruing under the sale, the evidence introduced by her was not admissible, and should not be considered; and at this stage of the case the plaintiff is entitled to judgment. R. S., chap. 6, § 205.</p> <p>The homestead of Isaac George in 1880 and the homestead of Melvina Dickey in 1883, on the east side of the turnpike road, was a well known farm in Stockton. Its boundaries were indicated by fences. A person having the knowledge necessary to apply the description to the face of the earth could identify the premises with certainty and precision. lie could make no mistake. In Greene v. Bunt, 58 Maine, 518, the court after holding certain descriptions to be sufficient, give the reason for so holding, in these words: " These lots are sufficiently described to enable any one to identify them by having the knowledge necessary to apply the description to the face of the earth.”</p> <p>The description in this case answers all the requirements of this rule, although there may be an error in the number of the lot. Abbott v. Pike, 33 Maine, 204.</p>

<p>On report.</p> <p>Bill in equity, heard on bill and demurrer, by a vendor seeking to enforce specific performance, against his vendee, of a written contract for the purchase of real estate. The bill alleged a tender of the deed, and all other acts required of the vendor, under the contract, and concludes thus : " but the said defendant then and there refused to accept a conveyance of said premises, or to pay to the plaintiff said one thousand dollars according to the terms and conditions of said [written] instrument.”</p> <p>" The said plaintiff is still seized in fee of said premises and is still in possession as owner thereof, and is ready, as she has been at all times since said fourth day of April, and will continue to be, to transfer said premises to said defendant and to receive therefor said one thousand dollars.”</p> <p>"Wherefore, the plaintiff prays specific performance of the said agreement hereinbefore referred to in Par. I, and that the defendant may be decreed to do and to perform all necessary acts for enabling it to perform its part of said agreement by paying to said plaintiff the said sum of one thousand dollars upon tender by the plaintiff of a good and sufficient deed of said premises which the plaintiff will always be ready to make.”</p> <p>The following causes of demurrer were assigned: " said bill of complaint contains no allegation that said defendant corporation is capable and has the ability of being made to comply with the requirements of a decree granting such relief as is therein asked for, ... it doth not appear by said bill of complaint that a full and adequate remedy doth not exist through ordinary courts of law.”</p> <p>Defendant’s financial ability to comply with a decree of specific performance cannot affect its legal or equitable liability. When a contract is in writing, is certain, is fair, in all its parts, is for an adequate consideration, and is capable of being performed, it is as much a matter of course for courts of equity to decree a specific performance, as for a court of law to give damages for a breach thereof. Chance v. Beall, 20 Geo. 142 ; Rogers v. Saunders, 16 Maine, 92; Hopper v. Hopper, 16 N. J. Eq. 147 ; Hull v. Sturdivant, 46 Maine, 34. Counsel also cited: Bisp. Eq. 4 ed. § 364; Richter v. Selin, 8 Serg. & R. 425; Kerr v. Day, 2 Harris (Pa.), 114; Brewer v. Fleming, 1 P. E. Sin. 113 ; Napier v. Darlington, 20 Id. 64; Finley v. Aiken, 1 Grant’s cases (Pa.), 83 ; Malin v. Malin, 1 Wend. 625 ; McKechnie v. Sterling, 48 Barb. 330 ; Hall v. Smith, 14 Ves. 426 ; Old Colony R. R. v. Evans, 6 Gray, 25 ; Schroppel v. Hopper, 40 Barb. (N. Y.) 25; Story’s Equity, § 723 note; Salisbury v. Bigeloio, 20 Pick. 174; Haven v. Lowell, 5 Met. 35 ; Hilliard v. Allen, 4 Cush. 532; Cathcart v. Robinson, 5 Pet. 278.</p> <p>A vendor of land may come into a court of equity to compel specific performance of a contract of sale, although he may have a remedy at law by an action for the purchase money. Phyfe v. Warded, 5 Pai. 268; Springs v. Saunders, Phill. (N. C.) Eq. 67 ; Finley v. Aiken, 1 Grant’s cases (Pa.) 83; Lamson v. Burl, 4 W. & S. 27 ; Brown v. Haff, 5 Pai. 240; R. S., c. 77, § 6, cl. III.</p> <p>The plaintiff may recover at law and cannot come into equity to obtain exactly and precisely what he can have at law. Howe v. Nickerson, 14 Allen, 400, 406; Jacobs v. P. <$> S. R. R. 8 Cush. 223; Gill v. Bicknell, 2 Cush. 355; Russell v. Clark, 7 Cranch, 69; Jones v. Newhall, 115 Mass. 244, 249.</p> <p>Most of the cases in Massachusetts where such decrees have been rendered will be found to be cases where trusts or other subjects of equitable jurisdiction have been involved or else the question of jurisdiction is not raised. Jones v. Newhall, supra ; Myer’s Fed. Dec. Vol. 15, § 1196.</p> <p>The tendency of this court by recent decisions is to hold to a limited jurisdiction, the burden being on the plaintiff to show he is without legal remedy. White v. Dresden, 70 Maine, 317 ; Caleb v. Hearn, 72 Id. 231; Bird v. Had, 73 Id. 73 ;; Robinson v. Robinson, Id. 170; Titcomb v. McAllister, 77 Id.. 353, 358 ; Messer v. Storer, 79 Id. 512; Dennison, &e. Co. v. Robinson & Co. 74 Id. 116.</p> <p>Defendant, in any event, could not perform contract unless it had property, means, capability and ability to carry out the trade. If necessary to make allegations upon these points the plaintiff has not done so. 3 Pom. Eq. § 1405.</p>

<p>On report.</p> <p>Bill in equity, heard on bill, answers and proofs, in which the plaintiff seeks a decree that the defendants, his children, may release to him two lots of land, the legal title of which they hold as heirs of their deceased mother, and which he claims that his children hold in trust for him by reason of his having furnished the money to purchase the land for him, she having taken the deed in her own name.</p> <p>The facts are stated in the opinion.</p>

<p>On motion and exceptions.</p> <p>This was an action on the case for negligence in causing the death of plaintiff’s intestate, while a passenger on train of defendant’s road, by being thrown from the platform on which he was riding.</p> <p>The writ alleges in the first count that, for want of "sufficient cars and reasonable accommodation,” deceased was "compelled to remain standing upon the platform of the car,” and while so standing, and in the exercise of due care, was thrown therefrom " wholly through defendant’s negligence,” his leg broken, and other injuries caused to his person and property.</p> <p>In the second count, it is alleged to have been defendant’s duty to provide "proper cars and sufficient and proper accommodations therein for passengers to be seated,” which it failed to do ; and that deceased " was unable to obtain a seat or convenient standing room in said train,” and "was obliged to stand upon the rear platform of the passenger car next the locomotive that the track had a curve " very sharp and dangerous to be run over;” and that defendant, well knowing the premises, "ran said train upon said sharp and dangerous curve, . . . at a very high and dangerous and improper rate of speed, so that the car upon the platform of which deceased stood, was suddenly, violently, and forcibly thrown against and upon the outer rail of said dangerous and sharp curve, and thereby said car was violently jerked and jolted,” whereby deceased was "thrown from the car” and received injuries of which he died some twelve hours afterward.</p> <p>It was in evidence, that the deceased, August 29, 1889, became a passenger on defendant’s train at York en route for Portsmouth; that he did not enter any car of the train, of which there were three, but stood upon the rear platform of one of them until he was thrown, or fell, from the train and received injuries of which he died early next day.</p> <p>There was some slight conflict of evidence as to the rate of speed at which the train was moving at the time, several of plaintiff’s witnesses describing it generally as very fast, while the train employees and others testified that the train was moving at about the usual rate of speed.</p> <p>At the point where deceased fell or was thrown from the train, there was a curve, but no evidence of any dangerous character it possessed in any way was given, while engineers and train men testified generally as to its safety and not exceptional character along the line.</p> <p>Defendant claimed (1) that its road, track, and curvature were in no way dangerous, but entirely safe, and that its train was not run at either an unusual or a dangerous rate of speed, and that, therefore, it was not negligent in any particular; and (2) that the deceased, by voluntarily riding upon the platform of the car while the train was in motion, assumed the extraordinary risks of such an exposed position, and thus contributed to the injuries he received.</p> <p>The view taken by the court of the merits of the case on the motion renders the exceptions immaterial.</p> <p>Plaintiff’s intestate was in the exercise of due care under existing circumstances. He was a lawful passenger, entitled to a seat in defendant’s car, which should have been provided for him by defendant. An excursion over the road had been advertised and defendant should, and by ordinary foresight could, have furnished sufficient seats for passengers. One empty car was left at York Beach prior to the return trip on which the deceased was injured. • 2 Kent’s Com. 602 ; 2 Greenl. Ev. § 221; Story’s- Bailments, § 601; Warren v. Fitch. Bail-road, 8 Allen, 233; Ingalls v. Bills, 9 Met. 15; Simmons v. JV. B. etc. St. Co. 97 Mass. 368 ; Barden v. B. O. and F. Railroad, 121 Mass. 428 ; Bates v. O. C. Railroad, 147 Mass. 265 ; Willis v. L. I. Railroad, 34 N. Y. 670.</p> <p>It was a hot August day, cars more or less crowded, and there was sufficient evidence from which the jury might well find that there were no vacant seats in the cars. He was not obliged to stand in the aisle. Therefore, he was neither "voluntarily,” "unnecessarily,” nor "improperly” riding upon the platform. Hence, his position under the circumstances was not contributory negligence. Shear. andRedf. on Neg. § 284; Beach on Contrib. Neg. § 54; Maguire v. Mid. Ry. Co. 115 Mass. 239 ; Fleck v. Union Ry. Co. 134 Mass. 481; Goodrich v. Penna, R. D. Co. 29 Hun, 50; Willis v. L. I. Rd. Co. 34 N. Y. 670.</p> <p>Passengers may be justified or excused by circumstances, for which railroad corporation is responsible, in that it might have prevented them by requisite care and prevision. State v. B. & Me. Railroad, 80 Maine, 433 ; Hooper v. Same, 81 Maine, 267.</p> <p>His position was, necessarily, a condition, but not a contributing cause of his injuiy. O’Brien v. McGlinchy, 68 Maine, 557; Dewire v. B. and Me. Railroad, 148 Mass. 347; Willis v. L. I. Ry. Co. 34 N. Y. 670; State v. Railroad, 52 N. H. 528; Beers v. Housatonic Railroad, 19 Conn. 566.</p> <p>Whether or not Goodwin was in the exercise of due care, under all the circumstances, and so, whether his act — his position— was such contributory negligence as to preclude the right of action, was a question solely for the jury. Keith v. Pinkham, 43 Maine, 501; Dunn v. G. T. Ry. 58 Maine, 193; Plummer v. Railroad Co. 73 Maine, 592; Hobbs v. Eastern Railroad, 66 Maine, 575; Shannon v. B. & A. Railroad, 78 Maine, 59 ; State v. B. and Me. Railroad, 80 Maine, 431; Hooper v. Same, 81 Maine, 267 ; Bigelow v. Rutland, 4 Cush. 247; Spofford v. Harlow, 8 Allen, 176; Barden v. B. C. <& F. Railroad, 121 Mass. 426; Treat v. B. & L. Railroad, 131 Mass. 372; Fleck v. Union Ry. Co. 134 Mass. 481; Mc-Donough v. Met. Railroad, 137 Mass. 212; Werle v. L. I. Railroad, 98 N. Y. 650.</p> <p>The lack of seats, the crowded condition of the cars, the summer heat, these and other facts, were properly submitted to the jury to determine whether this passenger had sufficient excuse or justification, considering the ordinary dangers of the platform, for riding thereon, and by their verdict it must follow that he was not guilty of contributory negligence. Nor was he presumed to know of the rule forbidding riding on platform. Such knowledge must be proved. Dunn v. G. T. Ry. 58 Maine, 192; Hanson v. H. and N. A. Railroad 62 Maine, 89.</p> <p>There is evidence tending to prove that Goodwin took the precaution to hold on to the rail of the car, thus exercising ordinary prudence against the ordinary risks of such a position, i. e., ordinary jars and shaking of the cars. The jury were ■warranted in finding that Goodwin used due care to protect himself against all perceptible or reasonable anticipated dangers ; care which was sufficient until some unusual, unanticipated and extraordinary acts of the defendant occurred which threw him from the train.</p> <p>Defendant’s negligence alone caused the injury to this passenger Goodwin.</p> <p>a. No sufficient, suitable accommodations were provided for passengers in a contingency which defendant had reason to anticipate both by previous advertisement and the presence of large numbers of passengers going over the road eastward prior to the return trip train from which Goodwin was thrown.</p> <p>The care, skill and foresight required of carriers of passengers are commensurate with the magnitude of the interests involved, and with the attendant or anticipated dangers; and with the increase of danger, the law is more exacting in its measure of duty and responsibility.</p> <p>That measure is defined thus: the utmost skill, the most careful management, extraordinary care, the highest diligence, the greatest possible precaution. Anything short of these becomes neglect and charges carrier. Dish. Non■ Contract Law, § § 1062, 1064; Edwards v. Lord, 49 Maine, 280; Treat v. B. <& L. Railroad, 131 Mass. 371; Werle v. L. I. Railroad, 98 N. Y. 650, and cases supra.</p> <p>b. It was the duty of defendant’s conductor to show Goodwin to a seat, or a safer place, or to warn him of special dangers (the curve and rate of speed at which it was approached,) and otherwise, when needful, to direct his movements. Misfeasance in this particular, resulting- in damage, is actionable. Bish. Non-Contract Law, § 1089 ; Edwards v. Lord, supra ; Knight v. jP. S. & P. Railroad, 56 Maine, 234; Dunn v. G. T. Ry. Go. 58 Maine, 192; Penn. Railroad v. McGloskey, 23 Pa. St. 526 ; McIntyre v. FT. Y. G. Railroad, 37 N. Y. 287 ; Foy v. London, etc. Railroad, 18 C. B. (N. S.) 225 ; Simmons v. FT. B. St. Go. 97 Mass. 361; Pittsb. etc. Railroad, v. Pillow, 76 Pa. St. 510; Flannery v. B. B. & 0. Railroad, 4 Wash. (D. C.) Ill; Cooley on Torts, 1st Ed. p. 646; Kentucky Gent. Railroad Go. v. Thomas’ Admr. 79 Ky. 3, 160, 165; O’Donnell v. Railroad, 9 Smith (Pa.), 239 ; Gonzales v. Railroad Go. 39 How. Prac. Reps. 407.</p> <p>c. Defendant’s conductor collected fare of Goodwin on the platform ; was standing near him as they approached the danger point; knew his position fully, knew (or should have known) his danger; knew of the curve and the dangerous speed of the train and consequent liability to extraordinary, unusual and necessarily violent shock, jar, jolt and lurch of the car; had the power and the obligation to seasonably warn him; had, further, the power and obligation to signal the engineer in a second’s time to slacken speed; either of which acts (if seasonably done) would have averted the injury to Goodwin; failure to do either of which was negligence of the defendant subsequent to and independent of any negligence of Goodwin (if any there were), which negligence of defendant was the proximate, causal source of the injury, for which the defendant corporation is liable. Cooley on Torts, 1st Ed. p. 679 ; Bish. Non-Contr. Law, § § 462-4; Hobbs v. Eastern Railroad, 66 Maine, 572; O’Brien v. McGlinchy, 68 Maine, 552 ; State v. Man. and Law. Railroad, 52 N. H. 572 ; Company v. Railroad, 63 N. H. 159 ; Beers v. Housatonic Railroad, 19 Conn. 566 ; Kerwhacker y. Railroad, 3 Ohio St. 172 ; Strauss v. Railroad Go. 75 Mo. 185; Morris v. Railroad Go. 45 Iowa, 29.</p> <p>The cases may be divided into three classes: (1,) Where negligence of plaintiff and negligence of defendant succeed each other so quickly as to be practically simultaneous; here the defendant is not liable because he could not avert the result; (2,) Where the negligence of the plaintiff is followed by the negligence of defendant, and the plaintiff by exercise of ordinary care might have averted the result, the defendant is not liable; and (3,) Where the negligence of the plaintiff is followed by negligence of the defendant, and plaintiff did not know of defendant’s negligence, and was not lacking in ordinary care in not knowing it, and defendant by exercise of requisite care might have averted the result, plaintiff’s negligence is not contributory, and the defendant is liable.</p> <p>In other words, plaintiff’s negligence is the remote, and defendant’s negligence is the proximate cause of the injury, and the fact that without plaintiff’s negligence the injury would not have occurred, will not discharge or excuse defendant.</p> <p>Here, Goodwin would probably not have been injured if he had not been standing on the platform ; defendant knew he was there, fully understood his danger, (unknown to himself,) knew of the special danger at the curve, might have ordered him to go into the car if he could get in, might have warned him to guard against the extraordinary shock at the curve, or might have checked the speed of the train by giving in a second’s time the signal to reduce speed; and had it done either of these obligatory acts, it would have discharged its duty; failing to do all or any of them, it is liable. Company v. Railroad, 63 N. H. 159, and cases, supra. This question was properly submitted to the jury. O'Brien v. McGlinchy, supra, and citations; Treat v. B. and L. Railroad 131 Mass. 371; Lapointe v. Mid. Railroad, 144 Mass. 18 ; Griffin v. B. and A. Railroad, 148 Mass. 146 : Willis v. L. I. Railroad, 34 N. Y. 670 ; Werle v. same, 98 N. Y. 650 ; Tanner v. L. & JST. Railroad, 60 Ala. 621; Ala. Gr. So. Railroad v. Hawks, 72 Ala. 112.</p> <p>The jury were fully warranted in finding subsequent or proximate and causal negligence of defendant, under the instructions of the court, which instructions embodied the well-founded rule in O'Brien v. McGlinchy,()8 Maine, 557 ; and Hobbs v. East. Railroad, 66 Maine, 552, and other cases, supra.</p>

<p>Constitutional Law. Taxes. Sewers. Notice. Acceptance of Acts. Constitution, Arts. I, § 22; IX, § § 7, 9. Stat. 1889, c. 288.</p> <p>The Act of 1889, c. 285, relating to drains and sewers, is not in violation of Art. IX, of the Constitution, which requires taxes upon property to be “ assessed equally, according to the just value thereof.”</p> <p>A land owner may be required to contribute towards the cost of a public work, a sum equal to the increased value of his property by reason of peculiar and special benefits thereby given, in addition to those bestowed upon him in common with the general public.</p> <p>A tax may be recovered of a land owner when duly assessed on his land, under Stat. of 1889, c. 285, according to the benefit accruing to him from the construction of a public sewer; and ten days’ notice, under that statute, of the hearing on an assessment for such benefit, is reasonable and sufficient to a resident owner, who appeared after being served with personal notice, when the act being obscure does not provide how long before the hearing such notice is to be given.</p> <p>Over-valuation cannot be set up as a defense to the tax. The statute remedy in such cases is exclusive.</p> <p>Where an act is not to take effect until it has been accepted by the city council at a meeting legally called therefor, Held: That it may be accepted at a regular adjourned meeting duly held after a regular session of the city council; also, that no previous notice of the business to be acted on is necessary to render its acceptance valid.</p>

On report. This was an appeal from a decree of the Judge of Probate, for the county of Oxford, approving and allowing an instrument produced by the appellees, as the last will and testament of Ebenezer E. Holmes, of Oxford, in said county, deceased.

<p>Attachment. Notice of claim. Lien. Carrier. B. 8., c. 81, § §43, 44,45,46.</p> <p>The notice of claim, upon goods attached, as providedin R. S., c. 81, § 44, is not required to be given to the attaching officer before the goods are sold by him.</p> <p>When a consignee has a lien for advances upon goods on board ship, which are taken from the ship by an attaching officer on a writ against the consignor without tendering to the carrier or the consignee the amount of the lien, the carrier may maintain an action therefor against the officer.</p>

<p>Facts agreed.</p> <p>The defendant’s discharge in insolvency released him only, from such debts, claims, liabilities and demands, as were or might have been proved against his estate in insolvency. E. S., c. 70, § 49. The case of Fernald v. Johnson, 71 Maine, 437, settles the fact that Feruald’s claim under the contract was not provable against Clark in insolvency.</p> <p>Counsel cited : Fowler v. Kendall, 44 Maine, 448 ; Reed v. Pierce, 3(5 Id. 455 ; Hole v. Warren, 32 Id. 94 ; Filis v. Ham, 28 Id. *85 ; Wells v. Mace, 17 Vt. 503 ; Woodard v. Herbert, 24 Maine, 358 ; Mann v. Houghton, 7 Cush. 592 ; Bennett v. Bartlett, 6 Cush. 225 ; Savory v Stocking, 4 Cush. 607 ; Murray v. He Rottenham, 6 Johns. Ch. 52.</p>

On exceptions. This was an action of trespass entered in the Lewiston Municipal Court. The writ was sued out and served on the twenty-sixth day of June, 1891, and made returnable to the September term of that eoui’t. The defendant duly filed a motion to dismiss the writ because it was made returnable to a term of said court more than sixty days from the day of the suing out of said writ and the date thereof.

<p>On exceptions.</p> <p>The case appears in the opinion.</p> <p>The declaration alleges no consideration for defendant’s supposed contract, and is, therefore, defective. Bourne v. Ward, 51 Maine, 191 ; Augusta Bank v. Augusta, 49 Id. 419 ; King v. Crotoell, 61 Id. 244; Gore v. Gibson, 13 M. & W. 623; Murdoclc v. Caldwell, 8 Allen, 309; Burnham v. Allen, 1 Gray, 500. Open to demurrer: Thomson v. O’ Sullivan, 6 Allen, 303; Murdock v. Caldwell, 8 Allen, 309.</p> <p>Note fell due on July 22, 1878, Sunday. Of this the courtwill take judicial notice, 1 Gr. Ev. (13th ed.) § 5; 1 Whar. Ev. § 282; Brown v. Piper, 91 IJ. S. 37. The almanac is part of the law of England, per Pollock, C. B. in Tutton v. Darke, 5 H. & N. 649 ; Street v. U. S. 133 U. S. 306. Note was due by the law merchant, Saturday, July 21. Barker v. Parker, 6 Pick. 80, 81; Chaffee v. B. B. Co. 146 Mass. 234. Days of Grace : Chit. Bills, c. 9. pp. 410, 411 ; Sto. Prom. Notes, § 220, note 3 ; Perkins v. Bank, 21 Pick. 485 ; Bowley v. Bowley, 41 Maine, 542. Is no part of the contract per se, but a statute allowance. Last day of grace was July 24, demand for payment not made until July 25, one day too late. Cases supra, and Jones v. Pales, 4 Mass. 248.</p>

<p> Deed. Boundary. Waters. </p> <p>A description in a deed which runs down the middle of a stream in which the tide ebbs and flows, thence across the stream to the upland on the southerly-side, and thence on the southerly side of such stream, conveys to the grantee the land on that side between high and low water mark.</p>

On exceptions. The defendant having been found guilty by the jury of the Superior Court for Kennebec County, of an assault with the intent to kill William P. Roundy, filed exceptions to some of the instructions of the presiding justice. They are stated in the opinion.

On exceptions. This was an action of assumpsit on two promissory notes dated Boston, April 17, 1888, given by the defendant to the plaintiff, who were then and ever since have been non-residents of this State. The plaintiff resides in Massachusetts and the defendant in Missouri. Defendant’s property was attached in Waldo county, and personal service of the writ was made on him. The case-was tried before the presiding justice with the right to except.

<p>On report.</p> <p>This was au action on the case for disturbance of plaintiffs’ rights of way which had been reserved to them in the defendant’s land near Duck Brook, at Bar Harbor. The lang-uage of the reservation, providing for two distinct roads and substitutes therefor, is in a deed from plaintiffs’ testator to the defendant, and is quoted in full in the opinion.</p> <p>In 1884, Samuel E. Lyon, plaintiffs’ testator, since deceased, being the owner of certain lands lying at Bar Harbor, and on the south westerly side of Eden Street near Duck Brook, rising abruptly from the street line, which land he had divided into lots numbered respectively one, two, three, and four, sold and conveyed to the defendant lots one and two.</p> <p>Lots three and four bordered on Eden street, a public way, but the road which Lyon had been accustomed to use in reaching the reserved lots passed over the lots conveyed.</p> <p>Until a short time before the conveyance to the defendant, Lyon had used an old road which passed from Eden street to his lots on the hill nearly parallel with, and near to Duck Brook. But the town had lately so lowered the grade of Eden street as to render the entrance to this old road impracticable, and to avoid this, Lyon had constructed what he called his "carriage road” starting from Eden street a little further from Duck Brook and terminating in the "old road” about half way up the hill.</p> <p>At the time of the conveyance to the defendant, Lyon was accustomed to reach his lots number three and four by travellingup his carriage road to its junction with the old road and thence by the old road to his other lots. The portion of the old road below the junction was substantially if not entirely abandoned.</p> <p>Since purchasing, Lea, the defendant, with the knowledge and acquiescence of Lyon and his heirs, built an expensive house upon his lot in such a position as to obstruct the so-called "carriage road,” and claimed that Lyon not only acquiesced in the building of the house but actively assisted in laying it out. The part of the old road below the junction was also obstructed (also with Lyon’s knowledge and consent as contended by the defendant), and as a substitute for these narrow, steep and inconvenient ways, a broad, new road was built by the defendant.</p> <p>What is now called Eden street is the county road leading northwesterly from Bar Harbor to Ellsworth and passes through a large tract of land of Lyon extending from the shore of the bay back a mile or more. Duck Brook flows northeasterly into the bay and is nearly parallel with the northwesterly side lines of lots one, and two. The land rises abruptly on the southwest side of Eden street, being both rough and hilly. Other physical conditions of the locus are stated in the opinion.</p> <p>Lyon gave Lea the right to change the two roads but reserved full rights in the substituted roads. Defendant has no right to obstruct either without furnishing a sufficient substitute.</p> <p>Estoppel: Steel v. Smelting Go. 16 Otto, 447 ; Brant v. Va. G. (&■ I. Go. 93 U. S. 327; Greet v. Jack, 3 Watts, 240 (27 Am. Dec. 354) ; Henshaw v. Bise ell, 18 Wall. 255 ; Knouff v. Thompson, 16 Pa. St. 364; Parker v. Barker, 2 Met. 423 ; Ferris v. Goover, 10 Cal. 509 ; Goodson v. Beacham, 24 Geo., 150; Hepburn v. McDowell, 17 S. & B. 383.</p> <p>Abandonment: Dyer v. Sanford, 9 Met. 395, 402; Siokoe v. Singers, 8 E. & B. 31; Ward v. Ward, 7 Exch. 838 ; Lovell v. Smith, 3 C. B. (N. S.) 120; Jamaica, <&c. Gorp. v. Chandler, 121 Mass. 3; Hale v. Oldroyd, 14 M. & W. 789 ; Hayford v. Spokesfteld, 100 Mass. 491.</p> <p>Estoppel and executed license : Ballard v. Butler, 30 Maine, 94; 3 Kent’s Com. 448; Pope v. Devereux, 5 Gray, 409; Smith v. Barnes, 101 Mass. 278 ; Lamed v. Lamed, 11 Met. 421; Gage v. Pitts, 8 Allen, 527; Ourtis v. FFoonan, 10 Allen, 406 ; Dyer v. Sanford, 9 Met. 395 ; Morse v. Gopeland, 2 Gray, 304. Counsel also cited : Welland Oanal Go. v. Hathaway, 8 Wend. 480 ; Taylor v. Hampton, 4 McCord, 96 : Fast Ind. Go. v. Vincent, 2 Atk. 83 ; Veghte v. Water Company, 19 N. J. Eq. 153; Crain v. Fox, 16 Barb. 184; Winter v. Brock-well, 8 East, 308 ; Pope v. O’Hara, 48 N. Y. 446; Marble v. Whitney, 28 N. Y. 297 ; Binge v. Baker, 57 N. Y. 209 ; Brooks v. Curtis, 4 Lans. 283 ; Bigelow on Estoppel, p. 513; Angel on Water Courses, 296-308, 318-322.</p>

On exceptions. Action for malicious prosecution in which the jury rendered a verdict for the plaintiff, and the defendant excepted to the rulings and instructions of the court. The case is stated in the opinion. Evidence: 2 Greenl. Ev. § 449 ; Williams v. Vanmeter, 8 Mo. 339 (41 Am. Deo. 644) ; Kline v. Shuler, 8 Iredell’s Law, 484 (49 Am. Dec. 402) : Abbott’s Tr. Ev. pp. 652, 653 ; Leidig v. Pawson, 1 111. 272 (29 Am. Dec. 354) ; Mowry v. Miller, 3 Leigh, 561 (24 Am.

On exceptions. This was an action of assumpsit on a written contract to recover of the defendants a sum of money for furnishing a clam bake with the usual accompaniments, for a Masonic excursion, at Long Island, Portland, on the twenty-fourth of June, 1890. The' declaration contained, besides the common counts, including an account annexed of two thousand one hundred and sixty dollars and ninety-seven cents, a special count on the contract.

On exceptions. The case came before this court on exceptions to the overruling by the presiding justice of the Superior Court of Cumberland county, of defendants’ motion to dismiss the complaint, charging them with assault and battery ; also to the overruling of their demurrer to the complaint.

<p> Attachment, Shipping. </p> <p>.A vessel at sea cannot be constructively attached, under the laws of Maine, by an officer upon the land.</p> <p>.Ain officer made return on a writ that he had attached, so far as he had power so to do, a vessel then at sea, and sought to make the attachment effective as «>f the date of the return by actual seizure of the vessel afterwards on her arrival in port. Held; that no attachment had been created by the return.</p>

On exceptions. This was ai,i action on the case to recover damages sustained by the plaintiff from alleged defects in the highway. The case was tried in the Superior Court for Kennebec county. The presiding justice ruled that the plaintiff’s statute notice of his injuries was insufficient and ordered a nonsuit. The plaintiff excepted to this ruling.

<p>On report.</p> <p>The case appears in the opinion.</p> <p>Counsel cited: Newton v. Huxley, 13 Gray, 285 ; Medbury v. Watson, 6 Met. 247; Glidden v. Child, 122 Mass. 433.</p>

On report. Debt on judgment. The case is stated in the opinion. When the transaction to be established is not of recent date, and only one appropriate place of deposit exists for the preservation of such instrument of record, and there is no suggestion that they may be found elsewhere, and the appropriate place of deposit is carefully examined without success, an inference of irrecoverable loss or destruction would thereupon arise. Simpson v. Norton, 45 Maine, 288.

<p>Meal Action. Meeds. Delivery. Evidence. Presumption. M. 8., c, 81, § § 60, 61.</p> <p>The rule, which admits as evidence in real actions office copies of deeds when the party claiming under them is not the immediate grantee therein, applies to mortgages as well as to absolute deeds.</p> <p>When an office copy of a mortgage is so admitted, which purports to have been executed for a corporation by its agent, due execution and delivery of such morgage are to be presumed until something appears to show the contrary.</p>

<p>Railroad. Passenger. Foreign and Interstate Commerce. R. S., c. 51, § 44.</p> <p>The statute of this State which makes a ticket for a passage on any railroad binding on the railroad company for six years from its date, with the right of the holder of the ticket to stop off at usual stopping places as often as he pleases during that period, cannot apply to a ticket purchased in Canada for a continuous passage on a particular day over the defendant’s road from that Province through portions of the states of Vermont and New Hampshire into Maine. Such an application of the statute would work an interference with both foreign and inter-state commerce in the carriage of passengers.</p>

<p>Agreed statement.</p> <p>The parties agreed that, if the plaintiff was entitled to recover, the defendant should be defaulted for the amount claimed in the writ; otherwise plaintiff to become nonsuit.</p> <p>No debt legally due plaintiff, nor has he any lien. Damren took assignment of debts subject to all defenses including payment. There must be a rescission of the compromise settlement between the original parties. R. S., c. 82, § 45; Bisbee v. Ham, 47 Maine, 543; Potter v. Ins. Go. 63 Id. 440.</p> <p>Defendant has paid seventy per cent of all these claims by his conveyance to Mrs. Damren. If Damren is allowed to prosecute these lien suits and recover judgment for the full .amount, he will then have received from defendant the property for which he paid his money and have judgment against «defendant for the money so paid and the thirty percent discount which the original plaintiffs conceded. His wife will have King’s property and King will be compelled to pay him one hundred dollars for every seventy dollars of the purchase money which was applied in payment of these claims. The rights of third parties have intervened, who cannot be heard in this suit.</p>

<p> Agent. Notice. Payment. </p> <p>The owner of a cargo of fish, permitting the master of the vessel on which the fish were laden to sell the same, wrote the purchaser, as follows : “ Should the schooner Midnight now on Georges sell fresh fish in Portland, will you please see that the check is made payable to my order, as the captain is a stranger to me. By so doing', you will confer a favor.” Held, that the notice was sufficient to entitle the owner to recover the price of the fish of the purchaser, who notwithstanding the notice paid the master, who absconded with the funds.</p>

<p>Beview. B. 8., e. 89, § 1. Attorney.</p> <p>In a petition for the review of an action in which the defendant was absent from the State and had no notice of the suit, but in which an attorney at law appeared and continued to act until judgment was rendered; it is competent for tbe petitioner to prove by parol that the attorney’s appearance was without his knowledge or authority; and if the fact is established the appearance can in no way legally aifect him.</p> <p>Remedial statutes should be liberally construed.</p> <p>Revised Statutes, c. 89, § 1, which provides that a review may be granted “when a petition for review of an action defaulted without appearance is presented within three years after an officer having the execution . . . demands its payment of the defendant ” — does not require that the defendant shall wait until an officer having the execution demands its payment of him, but he may apply for a review as soon as he has actual knowledge of the judgment against him.</p>

<p>On motion.</p> <p>Real action in which a verdict was rendered for the defendant. The plaintiff seasonably filed a motion to have the verdict set aside because William Ballantine, one of the jurors, was related to her within the sixth degree, and the relationship was unknown to her until after verdict; and that she never consented or waived her right to said juror sitting in the case.</p> <p>The testimony of the juror, taken in support of the motion, was reported to this court by the presiding justice.</p>

On report. Bill in equity to enforce a trust under a mortgage, heard on bill and answer.

On report. Bill in equity heard on bill, answers and testimony. The case is stated in the opinion.

On exceptions. The case is stated in the opinion. At the hour fixed by the court, the authority of the jury to consider the case had ceased. Richards v. Rage, 81 Maine, 563. Held: it is not necessary for the plaintiff to show injury. Bradbury v. Cony, 62 Maine, 223; State v. Fenlason, 78 Maine, p. 503. The order of the judge to the officer was, to keep the jury out until one o’clock ; then if they did not agree, to let them out.

On EXCEPTIONS. This was an action on the case, which came to this court on the plaintiff’s exceptions to the sustaining a special demurrer to the declaration by the presiding justice of the Superior Court for Aroostook County. The causes of demurrer assigned appear in the opinion. The giving written notice of the claim for damage is essential to the maintenance of the action. R. S., c. 18, § 80. It must be alleged in the declaration and proved at the trial.

On report. This was a creditor’s bill to reach, and satisfy in payment of plaintiffs’ judgment, the income of the defendant Stevens in the hands of his co-defendant, executor of Stevens’ father’s will also to enjoin payments from the estate to Stevens. The case is stated in the opinion. Jurisdiction: R. S., c. 77, § 6, cl. 8, 10; 1 Sto. Eq. 33.

On motion. Action on the case to recover damages alleged to have been been sustained by a defective highway in the town of Smithfield. The jury returned a verdict for the plaintiff of two thousand dollars. The case is stated in the opinion.

On exceptions.' This was an action of trover for the conversion of two promissory notes, and comes into this court upon the defendants’ exceptions as appears in the opinion.

On report. This was a real action for the recovery of a tract of land on Mt. Desert Island containing over forty-six acres, and called the Smallidge lot. Writ dated February 28, 1888. The defendants claimed title by a regular chain of deeds, all seasonably recorded.

On motion and exceptions. This was an action of assumpsit upon a promissory note. The defendant is the maker, and the plaintiff an accommodation indorser, who, after its dishonor, took up the note and brought suit to recover thereon. The note with the indorsements is as follows : Boston, November 1, 1887. One year after date I promise to pay to the order of John S. Morse, three thousand dollars, value received. Witness, Lucretia M. Lewis.

On report. This was an action of assumpsit in which the plaintiff sought to recover wages, as a teacher in the town of Bristol, by virtue of an employment by one Little, who claimed to be the agent of the school district and elected at a special meeting called by the selectmen of the town. 'The facts are sufficiently stated in the opinion.

Agreed statement. Real action, in which the facts are stated in the opinion. Deed, at common law inoperative and void. Legislature did not intend by subsequent acts that a joinder should bear any other than its accepted signification. Brown v. Wood, 1 Met. 542; Lithgow v. Kavenagh, 9 Mass. 161; Lufkin r.- Ourtis, 13 Id. 223; Learned v. Gutter, 18 Pick. 9. In statute 1841, c. 17, the two words joinder or assent” are used.

On report. Bill in equity by the administrators of the estate of Abigail J. Stetson, with the will annexed, to determine the construction of the will. By agreement of the parties, the case was reported to the law court to be heard on bill and answers under B. S., c. 77, § 43.

<p>Tax. Tax Sale. Ditto Marks. Sworn. B. S., e. 1, § 6, el. 20; c. 3, § 24; c. 6, § 193.</p> <p>A tax sale of real estate is invalid when the copy of the notice, filed by the collector with the town clerk, does not have upon it the required certificate, that the collector had posted the notice of the sale as required by R. S., c. G, § 193.</p> <p>Also, when it appears that the assessors were not sworn.</p>

On report. Assumpsit on a promissory note. The defendants pleaded the general issue and statute of limitations. The case is stated in the opinion. It is the payment, and not the indorsement of the payment, that extends or renews the note. If payment was not such, when the boards were delivered, no payment has ever been made.

On report. This was a writ of entry brought by the plaintiff as the successor of George Burgess, late Bishop of the Protestant Episcopal church in the Diocese of Maine, to recover possession of a certain lot of land and edifice thereon known as St. James” church and lot in Old Town. The writ is dated December 18, 1888.

<p> Contract. Condition. Assent. Alteration. </p> <p>A stipulation, that the trustees of a certain fund, to be raised by subscription, should signify their acceptance of the trust in writing, is a condition precedent to their right to enforce such subscriptions.</p>

On report. Bill in equity, heard by agreement upon the facts stated in the bill including the will itself, brought to obtain the legal construction of the will, of the late William Mann, as affecting the rights of the defendant in her father’s homestead, she having-married since his death. The facts and material parts of the will are stated in the opinion.

Agreed statement. The defendant having been adjudged an insolvent, his assignee appeared and asked leave to prosecute this action for the benefit of the general body of creditors. The case is stated in the opinion.

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

On motion and exceptions. This was an action of assumpsit, in which the plaintiff sought to recover for supplies furnished by her, a resident of Augusta, to a child of two or three years of age, after notice to the overseers of the poor. It was not denied by the defendant at the trial of the case before a jury in the Superior Court, for Kennebec County, that the child was supported by the plaintiff, nor that the proper statute notice to the overseers was given.

On report. This was an appeal from the decree of the probate court, for Sagadahoc county, allowing the account of Lucia Ela, guardian of her son Alfred, the appellant. The account presented and allowed is as follows : The first and final account of Lucia Ela, guardian of Margaret K. Ela, Walter Ela, Richard Ela and Alfred Ela minors of-in the county of Sagadahoc.

<p>On report.</p> <p>The facts are stated in the opinion.</p> <p>Recoupment: Claflin v. Cheney, 4 Pick. 118; Adams v. Moulton, 7 Pick. 287 ; White v. Chapman, 1 Stark, 113; Fletcher v. Dycke, 2 T. R. 32 ; Day v. Frank, 127 Mass. 497 ; Van Fpps v. Harrison, 40 Am. Dec. 328, note; Roberge v. Burnham, 124 Mass. 277 ; Duckworth v. Alison, 1 Ex. 412; Sanger v. Fincher, 27111s. 34G ■, Bunycin v. JSTichols, 11 Johns. 609 ; Real) v. McAlister, 8 Wend. 109; Batterman v. Pierce, 3 Hill, 177 ; Austin v. Foster, 9 Pick. 341; Dodge v. Tileston, 12 Pick. 328 ; Harrington v. Stratton, 22 Pick. 510 ; Sawyer v. Wiswell, 9 Allen, 39 ; Miller v. Mariners' Church, 7 Maine, 51; Lufburrow v. Henderson, 30 Ga. 482; Stow v. Yarwood, 14111s. 424; Wat. Set-Off. § § 464, 543, 588. Plaintiff being-insolvent, judgment should be stayed until defendants can procure judgment for forfeiture to set off against this claim. O’Connor v. Varney, 10 Gray, 231; Chapman v. Derby, 2 Vernon, 117.</p>

<p> Beal Action. Disseizin. B. 8., c. 104, § § 2, 4. </p> <p>In a writ of entry tried upon the plea of nul disseizin, the plaintiif must prove that he was seized within twenty years before the bringing of his writ.</p> <p>Under that plea, the defendant cannot defeat the action by showing title in a stranger under whom he does not show title in himself, unless such title proves that the plaintiif was not seized within twenty years. It was held, accordingly, that if the plaintiff claims under a deed received from the owner more than twenty years before he brought his writ, any evidence, that shows that he parted with that title to anybody before the twenty years began to run, will defeat the action.</p>

On exceptions. This was an indictment under R. S., c. 17, § 1, for keeping and maintaining a liquor nuisance at two different places in Phillips, Franklin County. The indictment is in the common form used in the State. The jury returned a verdict of guilty for both offenses.

On report. Action of covenant on a lease. Writ dated August 4, 1890. The case is stated in the opinion. Lease passed, by the insolvency, to the assignee. Defendant was freed from further obligation to pay rent, unless he actually occupied the premises. Hoyt v. Stoddard, 2 Allen, 442; Gray v. Bennett, 3 Met. 525; Gomeyys v. Vasse, 1 Pet. 193; Shelton v. Godman, 3 Cush. 318; Bemis v. Wilder, 100 Mass. 44(3.

<p>On exceptions.</p> <p>The case is stated in the opinion.</p> <p>Counsel cited': Morse on Citizenship, p. 248, and cases cited ; Pearson \. Portland, Q9 Maine, 278 ; State v. Furbush, 72 Id. 493. .</p>

<p> Way. Record. County Commissioners. Jurisdiction. </p> <p>The judgment of tlie county commissioners in locating a private way cannot be impeached in an action of trespass by a land owner, unless their record shows that they exceeded their jurisdiction.</p>

<p> Negligence. Way. Landlord and Tenant. </p> <p>Where a driveway from a lumber shed, across a railroad tract to the carriage way extending up and down a wharf, was an appurtenance belonging exclusively to the shed and the land on which it stood, Held: that it was the duty of the lessee of the land, who was owner of the shed, to maintain a reasonably safe means of access to the shed over the driveway.</p> <p>The responsibility and burden of providing such driveway, or means of access, to his lessee’s place of business does not rest upon the lessor or the owner of the land over which such access lies.</p>

<p> Indictment. Pleading. Vemie. Intoxicating Liquors. 11. 8., c. 131, §2. </p> <p>An indictment which, avers an illegal transportation of intoxicating liquors from a place in Waldo county to Clinton and Waterville in Kennebec county, does not charge the commission of any part of the offense within Kennebec county; the latter places being towns in Kennebec county on the line between the two counties, and there being no other averment of venue in the indictment.</p>

On exceptions. This was an indictment found in the Superior Court, for Kennebec county, charging the defendant with the illegal transportation of intoxicating liquors, and upon trial he was found guilty. The defendant requested the court to give certain instructions, found in the opinion, but which were refused. He, thereupon, filed exceptions.

<p> Indians. Treaties. Fish and Game. </p> <p>Tlie Indians resident within this State are not ‘ ‘ Indian Tribes ” within the treaty making powers of the Federal government.</p> <p>Nor are they in political life, or territory, the successors of any of the various “ Eastern Tribes of Indians” with whom treaties were made by the crown, or the colonies, in colonial times; and. hence, they cannot effectually claim any privileges or exemptions under such treaties.</p> <p>While they have a partial organization for tenure of property and local affairs, they have now no separate political organization, and are subject as individuals to all the laws of the State.</p>

<p>On report.</p> <p>Bill in equity, heard on bill, answers and testimony, filed by the plaintiff, to prevent by injunction the sale of the Knox and Lincoln railroad. The plaintiff town is a stockholder and also a holder of mortgage bonds issued by the railroad. A principal allegation in the bill is that the transfer of the railroad, its property and purchase, is without the authority of law, and plaintiff’s consent as a stockholder therein; also in violation of the rights of the plaintiff town and the holders of the bonds.</p> <p>Other grounds for equitable relief are stated in the bill. The view taken by the court renders a report of them unnecessary. The bill did not ask for the appointment of a receiver, although the insolvency of the railroad corporation was admitted.</p>

<p> Corporation. Water Company. Unreasonable Bates. </p> <p>A regulation of a water company providing that takers of water shall be liable to pay rent for the whole year, whether they .actually use it for that length of time or not, and to make payment yearly in advance, without special agreement, is unreasonable.</p> <p>One cannot be held to have made a special contract, to pay according to such regulations, merely by showing that he has knowledge of the regulation; but the company must show that he expressly assented to it and agreed to be bound by it.</p> <p>The power under a charter of a water company to establish prices and rents to be paid for water, subject to the control of the Legislature, does not deprive the Court of its jurisdiction to adjudicate between parties upon their legal rights.</p>

On report. Bill in equity, heard on bill and answers to obtain the construction of the will of Thomas Fuller, late of Augusta, deceased, testate.

<p>Adoption. Devise. Lineal Descendant. Lapsed Legacy, 11. 8., c. 67, § S5,r c. 74, § 10.</p> <p>A legally adopted child is a lineal descendant of Its adopting parents within the ■ meaning of the Ti. S., c. 74, § 10; and, as sncli, may take a legacy given by-will to one of its adopting- parents, and thus prevent the legacy from lapsing,, when the legatee dies before the testator.</p>

On exceptions. The defendant having been convicted upon a complaint before the municipal court, for the city of Bath, which alleged that, on the fourth day of December, A. D., 1890, he did then and there, at said Bath, in said county, transport intoxicating liquors from the office of theN.

On motion and exceptions. This was an action brought to recover the value of one horse and one donkey which were delivered by the plaintiff on board the defendant company’s steamboat, Tremont, at Boston, March 20, 1889, to be carried to Portland. The steamer sailed from Boston on the morning of March 22d, and arrived at Portland the same afternoon.

On exceptions. This was a bill in equity brought to set aside alleged fraudulent conveyances of personal property, and to have the same applied in payment of plaintiffs’ claims as creditors, to which the defendants filed the following demurrer : First: That the said complainants have not alleged, nor does it appear by their said bill, that they have obtained judgment upon the notes and claims set forth in said bill on account of which they claim to be creditors of the said…

On motion. This was an action tried at the September term of the Superior Court, for Kennebec county, 1890, and a verdict of four hundred and fifty dollars was given the plaintiff for alleged malpractice of the defendant, a physician, in a case of obstetrics.

On motion and exceptions. This was an action of trover, begun November, 1888, and. tried on the general issue, at the December term, 1890, in this court sitting in Sagadahoc county. The verdict was for the plaintiff for two hundred and fifty-two dollars, and the defendant filed a general motion for a new trial. Exceptions were also taken, but they became unimportant by the disposition made of the motion by the law court. The case is stated in the opinion.

On report. This was a statutory action of debt to recover a tax of the defendant, an inhabitant of Rockland, assessed for 1888, and amounting to three hundred and eighteen dollars, with interest from October 15, 1888. The writ is dated August 29, 1890.

On exceptions. The defendant was indicted for obstructing the due course of justice by enticing, soliciting and persuading a witness, Treat, who had been summoned to appear before the court at Belfast, to become intoxicated, and by then and there removing and abducting the witness, whereby he did not appear and give evidence. The defendant filed a general demurrer to the indictment, which was joined by the attorney for the State.

<p> Payment, Duress. Compromise. </p> <p>Money voluntarily paid cannot be recovered back.</p> <p>Money obtained by fraud or duress, or under such circumstances of oppression actual or threatened, as renders it unconscionable for the one receiving it to retain it, may be recovez'ed back.</p> <p>When one demands money under a claim of right, and uses no other means to obtain it thazi importunity and persistency, or a threat expressed or implied, of resort to litigatiozz to obtain it if it is not voluntarily paid, and the one of whom the money is demanded has time for consideration and deliberation, and to obtain the advice of counsel or fzúends, and the money is then voluntarily paid to settle the demand, it cannot be recovered back, though the demand is illegal and unjust.</p> <p>The law favors the compromise of doubtful claims, and does not allow settlements arrived at by mutual concessioizs to be lightly set aside.</p> <p>When both parties possess equal knowledge of the facts, or possess equal means of obtaining such knowledge, and one of them voluntarily pays a claim made against him by the other, the money so paid cannot be recovered back.</p>

On report. Bill in equity, heard on demurrer. The bill alleges, after setting out plaintiff’s title to the premises, that he is entitled under the deeds to all the right of taking salmon, shad and alewives on the whole of the shore frontage of said land, together with all the privileges necessary for carrying on said fishery.” The plaintiff asks the court, sitting in equity, to interpose and regulate the enjoyment of said shore frontage, for the following reasons :— That…

On report. This was an action by the administrator of the estate of J ames S. Parker, deceased, to recover certain sums of money from his widow, which were claimed as premiums, with interest thereon, of life insurance or benefits paid to the defendant after the death of her husband, by the Odd Fellows Mutual Relief Association of Maine, and the Manufacturers and Mechanics Lodge, No. 62, I. O. O. F. It appeared that the deceased, James S. Parker, was a member of both…

On exceptions. This was an action upon a policy of insurance, wherein the defendant insured the plaintiff in the sum of four hundred dollars on his stock of paints, oils, brushes, blinds, and such other merchandise, while contained in second story of frame • building situate east side of Miller street, Auburn, Maine.” The defendant contended that certain articles, consisting of set tackle and fall and ropes, sanding machine, fresco stencil patterns, tools, knives, cans, pair…

<p>Landlord and Tenant. Lease. Holding over. JR. 8., c. 73, § 10; o. 94, § § 1, 2.</p> <p>By statute, a tenant under a written lease, who holds over, becomes a tenant at will unless the peculiar stipulations in the lease clothe him with superior rights.</p> <p>A tenant in possession of land at the expiration of a written lease, who had erected a mill on it that the landlord had agreed to purchase at the expiration of the term, may retain his possession until such purchase shall be performed, but not without, meantime, being chargeable with rent.</p>

<p>On report.</p> <p>Real action, in which the case is stated in the opinion.</p>

On appeal. Hearing in equity on bill, answers, and testimony, a decree in favor of the plaintiff having been rendered by the single justice, who heard the cause in the court below.

On retort. The case is stated in the opinion. So tar as the report shows, the investment in stock of the corporation was a sound one at the time it was made. It also appears that the trustee acted with good judgment and a sound discretion and in good faith which would be all that could be required of him under the terms of an ordinary will. Lovell v. Minot, 20 Pick. 117. A savings bank investment. E. S., c. 47, § 99.

On exceptions. This was an indictment for a nuisance found under R. S., c. 17, which reads as follows: All places used as houses of ill-fame, or for the illegal sale or keeping of intoxicating liquors, all houses, shops or places where intoxicating liquors are sold for tippling purposes, all places of resort where intoxicating liquors are kept, sold, given away, drank or dispensed, in any manner not provided for by law, are common nuisances.” (Indictment.) State of Maine.—…

<p> Elections. Double Voting. School District. Indictment. Pleading. </p> <p>Illegal voting is an offense at common law.</p> <p>Wilfully depositing more than one vote during the same balloting for a town officer, or a school district officer, is an indictable offense.</p>

On exceptions. This was an action of assumpsit brought by the plaintiff against the defendant to recover a subscription of five hundred dollars, given as claimed by the plaintiffs to help build a church in West Farmington. After the conclusion of the testimony, the presiding justice ordered a pro forma verdict for the plaintiffs for the amount of said subscription with interest from date of the writ.

On exceptions. ’ This was indictment for rape upon a child under the age of ■fourteen years. The case was tried to a jury in the Superior «Court, for Kennebec County. The defendant filed a motion in arrest of judgment and for a new trial, which was overruled by the presiding justice, and he thereupon took exceptions.

<p> Town. Way. Defect. Railings. Notice. R. S., c. 18, § 80. </p> <p>In an action to recover damages alleged to have been sustained through a defective highway in the city of Augusta, the plaintiff described the defect as follows : that the road-bed was narrow and unsafe, being but thirteen and one half feet wide and that, along the westerly edge, the road-bed dropped abruptly three and one half feet, and was not provided with any railing.</p> <p>The evidence showed that, in order to have the road-bed level it was necessary, as the land sloped to the west, to make an excavation on the east side and an embankment on the west side. The embankment was only two and a half feet high and it hada slope of four feet in width, smooth and grassed over, the grass extending some distance into the carriage way. Besides a smooth and level road-bed, the ditch on the east side was only five or six inches deep and smooth up to the edge of a concrete sidewalk, giving an available width of more than seventeen feet over which carriages could be driven in safety. At the place of the accident three such carriages as the one in which the plaintiff was riding, could have been driven abreast. Held; that such a street is not unsafe or out of repair; nor was a railing necessary.</p> <p>Bailings are sometimes necessary; but not on the sides of such roads as this, where more accidents would be likely to happen by driving against them than by driving into the ditches.</p> <p>As the plaintiff and her husband were riding at night in a covered buggy, they came up behind a jigger standing on the east side of the street; and in attempting to pass the jigger, the husband drove over the embankment on the west side of the street, and the carriage was upset, and the plaintiff thereby injured. Held; that the upsetting of the carriage was caused by careless driving; or, if not, then as the result of those dangers which all must encounter when driving in the dark.</p> <p>Where the plaintiff and her husband had notice of the condition of the street prior to the accident, and it was admitted that the plaintiff did not give the statutory notice (R. S., c. 18, § 80), Held; that the plaintiff cannot maintain an action against the town.</p>

On motion and exceptions. This was an action of assumpsit tried a second time to a jury in the Superior Court, for Kennebec county, and in which the jury returned a verdict for the defendant. The plaintiff moved for a new trial and also took exceptions'. The facts will be found in the former report of the case in 82 Maine, 495. (Exceptions).

On motion and exceptions. This was an action of trespass for an assault and battery tried to a jury in this court sitting in Knox county.

On exceptions. In this action of assumpsit against indorsers of town orders, the writ was dated May 31, 1886. The defendants, among other defenses, pleaded the statute of limitations. Held: and continued to be held by the town unpaid, undischarged and without action of any kind. The presiding justice, in his charge, instructed the jury that the plaintiff’s cause of action accrued at the date of the first failure of the town to pay the annual interest.