Volume 85 — Maine Reports

<p> Corporation. Charter. Ouster. Waiver by State. Special Act, February 9, 1827; January 29, 1829-, August 6, 1846; August 8, 1846. </p> <p>By special Act of February 9, 1827, the defendant was chartered to erect and maintain a toll bridge over the Penobscot river “at or near the village of Old Town,” the legislature reserving the right to revise and change the tolls at any time after ten years. By an additional Act of January 29, 1829, the right to take tolls was extended to forty years, provided, that, at the end of said term, said bridge shall revert to the State. In 1831-2, the defendant completed and opened its bridge under the original charter and several subsequent acts. It was located nearly one half mile below the head of Old Town Falls, and was maintained there until March, 1S46, when the easterly span, the largest part, was swept away by a freshet. By special Act of August 6, 1846, before the rebuilding of defendant’s bridge, another corporation, the Old Town and Milford Bridge Company, was chartered to erect and maintain a toll bridge over the river “ at the Old Town Falls-”</p> <p>Section eleven of this new charter provided that some one of its corporators should within fifteen days after its approval furnish a copy thereof to the defendant; and if before September 10, following, the defendant should give any two corporators of the new company written notice of the defendant’s election “ to build a bridge at Old Town Falls, and on or before October 1, following, shall actually commence the erection, and, within a reasonable time thereafter, complete the bridge,— then the new charter should loe null and void,” &c. Such notice was accordingly given and defendant rebuilt its bridge at the old location. By special Act of August 8, 1846, it was provided that, “ so much of the Act of January 29, 1829, as relates to the reversion of the bridge to the State, be repealed,— provided that this Act shall not take effect unless the proprietors [defendant] shall elect to build a bridge at the Old Town Palls,” . . . “according to the provisions of the new charter.”</p> <p>Upon an information filed by the Attorney General to enforce the reversion of the bridge to the State and forfeiture of tire charter, upon the ground of usurpation by the defendant since 1872, the court having been aided by jury findings, it was held: that the phrase, “at or near the village of Old Town,” in the defendant’s charter, and that of “at the Old Town Palls,” selected for the new one, designate different localities; that the bridge was not rebuilt at the place intended by the Legislature; and that the defendant’s tenure of forty years was determined by its own limitation.</p> <p>The doctrine of waiver on the part of the State of the breach of a condition is not applicable when, as in this case, by the terms of the defendant's charter the franchise absolutely determined upon failure to perform the condition therein contained.</p> <p>An application by citizens to the Legislature, reciting the charter of the corporation and the clause of forty years’ limitation, asking the State to take possession and make it a free bridge, will not revive the defendant’s tenure of the bridge where there is no legislative action beyond the report of a committee with leave to withdraw granted to the petitioners.</p> <p>In proceedings of the above nature there may be judgment of ouster of a particular franchise, and not the whole charter.</p>

On motion. This was an action on the case by the plaintiff, a postal clerk and route agent, to recover damages received by the negligence of the defendant.

On REPORT. Bill iii equity, heard on report to the full court upon bill, pleadings and proofs, to compel the surrender into court for cancellation of certain bonds and coupons issued by the complainant in aid of the construction of the Androscoggin railroad from West Farmington into Farmington Village in 1870-1. A principal ground for relief was based by the complainant on its right of cancellation to prevent a multiplicity of suits.

On exceptions. This was an appeal from a decree of the probate court for the county of Cumberland, approving the last will and testament of George H. Townshend. After the appeal was entered in this court, E. W. Freeman, Esq., attorney for Oliver.

<p>JRailroacls. Eminent Domain. JR. 8-, c. 61, § 16.</p> <p>Railroad commissioners have authority, on the petition of railroad companies, ' to condemn land for the specific purposes mentioned in the statute only, and not for the general purposes of the corporation, and their certificate should state the special purposes for which such land is needed.</p>

On motion -and exceptions. This was an action on a policy of insurance in which the principal question was that of the damages and its mode of… Held: as matter of law, that it was competent for the defendant to prove by parol that the appraisers in their proceedings had complied with the stipulations in the agreement by which they were bound and by which their powers were defined. The plaintiff contended, among other things, that the umpire was to adjust differences only.

On report. The facts are sufficiently stated in the opinion. Counsel argued: (1.) That the attempted foreclosure by bill in equity is void, both as against the trustees under the mortgage of July 1, 1871, and as against the original mortgagors, the Somerset Railroad Company. (2.) That it is void as to all bondholders who have never cancelled and surrendered their bonds and converted them into stock of the new company.

<p> Deed. Way. Incumbrance. Eoidence. Action. </p> <p>An original farm was divided into two parcels by a town road running easterly from the county road to defendant’s land. . The defendant claimed title to the north half under the earliest deed of the same grantor, which made the town road his south line.</p> <p>This deed contained these words : 11 Reserving the town road leading through the farm.” The plaintiff acquired title to the south half of the farm under a later deed making the town road his north line. The town road wras subsequently discontinued. Held ; That the fee of the road was not reserved in tlie first deed, but only in its use as an incumbrance; and tliat in a real action the defendant had the better title to the whole of it.</p> <p>The plaintiff further claimed title to the south half of the road as assignee of a mortgage given by the original owner, but without an assignment of any part of the mortgage debt. Held ; That he cannot maintain a writ of entry against the defendant, a grantee of the mortgagor in possession, without first showing an existing mortgage debt.</p> <p>A lost deed, never recorded, and whose contents are in dispute and which can not be proved by witnesses who saw and read it, is not sufficient evidence upon which to base a judgment of title to real estate not in the possession of any grantee under it. ,</p>

On exceptions. The respondent was convicted by a jury of the Superior Court, for Kennebec County, of the illegal transportation of intoxicating liquors under § 2, c. 132, of the statutes of 1891, and took exceptions as appears in the opinion.

On motion. This was an action of assumpsit on a policy of fire insurance. The defense was that the premises had remained unoccupied for ten months previous to the fire without notice to the company, or its consent indorsed on the policy as by it was required ; and that the non-ocupancy had materially increased the risk. The verdict was for the plaintiff for the full amount of the policy and interest, and was the second trial of the same case.

On motion and exceptions. This was action of debt on a policy, or certificate, issued by the defendant on the life of one Albert B. Elwell after whose death by suicide, the defendant contended, first, that the certificate was void by the assured’s misstatement in his application that he was a widower when in fact he was unmarried but had been divorced; second, that he had forfeited his membership by intentional non-payment of overdue assessments ; and third, by procuring a…

<p>Wages. Assignment. Becord. B. 8., c. Ill, § 6.</p> <p>River-drivers are not “commorant” in the respective towns through which they pass while earning wages on a drive of logs; and the assignments of tlieir wages, in order to be valid under R. S., c. Ill, § 6, need not be recorded in such towns.</p>

<p> Rape. Complaint. Practice. </p> <p>Tlie mere lapse of time between tlie commission of a rape and the complaint of the act by the prosecutrix, is not the test of the admissibility of the complaint.</p> <p>The prosecutrix testified that the “ alleged assault ” took place on Sunday night, ancl was thereupon allowed to testify that she made the complaint the next night; Said, that the defendant has no cause for exception based upon the ground that the nature of the complaint was not more distinctly specified,— no other than the one set out in the indictment having been mentioned.</p>

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

<p> Eminent Domain. Water Company. Damages. Special Laws, 1891, c. 117. </p> <p>Upon appeal from the decree of County Commissioners, fixing the damages for land taken, it appeared that its charter authorized the water company “to locate, lay and maintain its sluices, aqueducts, pipes, hydrants, and other necessary structures in, over and through any lands, and to excavate in and through such lands for such locations; and required the company to file in the registry of deeds plans of such locations.” Pursuant thereto the company duly filed its plan designating thereon a.strip of land twenty feet wide across the appellant’s land, as its “pipe-line;” Meld, that an instruction that the “ company having taken that strip has the right to locate, lay and maintain its sluices, aqueducts, pipes, hydrants and other necessary structures in, over and through the same,” affords the company no ground of exception.</p> <p>So long as the appropriation of the land is kept within the scope of the original sequestration, compensation is made once for all, and is to be estimated according to the full measure of the right acquired under the charter and not merely according to the mode and time of the exercise of that right in the first instance.</p>

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

<p>On exceptions.</p> <p>This was an action of assumpsit on account annexed and a promissory note. The case was tried in the Superior Court for Kennebec County.</p> <p>This case was withdrawn from the jury and submitted to the presiding justice upon the following agreed statement of fact: A default is entered on the account annexed to the writ.</p> <p>The note in suit would have been barred by the statute of limitations, December 20, 1890. The writ was made and dated December 19, 1890, and originally returnable at the June term, 1891; an attachment of real estate was made and returned in December, 1890. After said attachment and before service on the defendant, about February 7, 1891, the return day was changed to the April Term, 1891, and a new' attachment of real estate made. Service was made on the defendant March 2d, 1891. At the return term the defendant answered generally by counsel and filed no plea. On the twelfth day of the following-term (June), the defendant pleaded the general issue with special plea of the statute of limitations, the pleadings to be considered as if seasonably filed.</p> <p>On this statement of fact, the case was submitted to the presiding justice with right of exception. 0</p> <p>Upon the foregoing- the presiding justice made ruling : Action maintainable. Default to include amount of note declared on.</p> <p>To this ruling the defendant excepted.</p>

<p>Wages. Assignment. Becord. B. 8-, c. Ill, § 6; Stat. 1891, c. 73.</p> <p>An assignment of wages earned while the assignor was commorant in any city or organized plantation and since Stat. 1891, c. 73, took effect, is not valid as against the employer unless he had actual knowledge of the assignment. If earned in an unorganized plantation, the assignment is valid though not recorded.</p>

<p>Pauper. Divorce. B. S., c. 20, § 3.</p> <p>A ruling'that the divorce of a pauper’s wife and her marriage with another man while her husband was in prison in another State did not work an abandonment on his part of his residence, affords the city in which he resided when he went away no cause for exceptions.</p>

On report. Bill in equity heard on bill, answers and testimony, and was certified to the law court under R. S., c. 77, § 43. This was a bill of interpleader filed by the city of Bangor to obtain the direction of the court upon the facts, which are sufficiently stated in the opinion, relating to the Hersey fund. The managers of the fund appointed under an ordinance of the city and the Mechanics’ Association were made parties.

<p>Agreed statement.</p>

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

<p>Way. Culvert. Town. Railroad. JR. S., e. 18, § 27; Stat. 1889, c. 282.</p> <p>In an action against a city for flooding the plaintiff’s premises by means of an insufficient culvert along an open water way or course under the street, it appeared that a railroad had included that portion of the street in its location; and that the duty of maintaining both street and culvert had passed from the city to the railroad which built- the culvert and ever since maintained it; and that the acts complained of were those of the railroad and not of the city. Held, that the action could not be sustained.</p>

<p> Contracts. Consideration. Gift. Delivery. Mortgage. Assignment. </p> <p>Both legal and equitable rights arise from a consideration, or from conditions that are equivalent to it, but never from mere voluntary unexecuted promises which háve not induced action or change of condition so as to work a consideration for them.</p> <p>Title to real estate may be conveyed by deed; it passes by devise or inheritance, and sometimes by judicial conveyance or operation of law, but never by parol gift only.</p> <p>Delivery is essential to a valid gift inter vivos.</p> <p>A promise to make a gift to another of mortgages on his property, the promisor being under no legal obligation to do so, is but an executory gift,— a mere intention to give without doing so. So long as the transaction remains executory and the promisor retains the title and the muniments of it himself, no gift becomes executed and no equity passes to the promisee; but if there is a contract founded on a consideration that the promisor will pay the mortgages for the promisee, then, upon his doing so, an equitable title will pass to the promisee although the promisor takes an assignment of them in his own name.</p>

<p> Indictment. Pleading. Gaption. Pate. </p> <p>An erroneous date in the caption of an indictment is harmless when the clerk’s: certificate shows that it was properly returned and filed.</p>

On appeal. Bill in equity heard upon bill, answer and proof on appeal by plaintiff from decree of the court beloiv dismissing the bill. The case appears in the opinion.

On exceptions. The decree in this court and to which the debtor took exceptions is as follows : First, that the debtor was a merchant or trader; second, that his business having begun and closed since statute 1885, c. 326, took effect, he was not required to keep a cash book; third, that neither the debtor, nor his book-keeper, nor any creditor could by his books ascertain the condition of his affairs, and that hence he did not keep proper books of account.

<p> Tax. Assessment. Unsworn Assessor. </p> <p>An action cannot be sustained, by a town collector, for the collection of taxes which were assessed against the defendant by two assessors legally chosen and sworn and another person chosen and sworn as a selectman only. The participation of the latter contaminates the assessment.</p>

<p>Waters. Fish. Winnegance Creek. B. 8., a. 40, § § 17, 22, 23, 68; Stat. 1885, c. 463.</p> <p>The construction and maintenance of a dam across a tidal stream, under legislative authority does not exempt the stream from the general statute for the protection of fisheries.</p> <p>Winnegance Creek in Sagadahoc County is still subject to the general statute.</p>

<p> Trustee,. Set-off. Disclosure. B. S.,.c. 82, § § 68, 130. </p> <p>A trustee who owes the principal defendant cannot deduct from the funds in his hands an account which another person has assigned to him against the principal defendant, unless after such assignment the principal defendant has agreed to pay the account to him.</p> <p>It is a matter within the discretion of the presiding judge whether a trustee ma.y be permitted to make an additional disclosure after he has once completed and filed a disclosure, and to the judge’s decision of such question exceptions do not lie.</p>

Agreed statement. This was an appeal from the decree of a judge of probate for Somerset county. The parties stated their case as follows : Asa Washburn late of Hartland, Maine, died, leaving a widow, and two minor children by a deceased former wife, the oldest child, Jossie Washburn, being eleven years old, the youngest child, Fred Washburn, being eight years old.

On exceptions. This was an appeal from the Municipal Court of the City of Waterville to the Superior Court, for Kennebec County, on a search and seizure process for the illegal keeping, &o., of intoxicating liquors. The trial in the Superior Court was. commenced the twenty-first day of the term, when the clerk made the announcement usually made to the respondent before trial.

<p>On exceptions.</p> <p>The following is the plaintiff’s declaration to which the defendant demurred:</p> <p>"In a plea of covenant broken, for that the said defendant at said Kennebunkport on the twenty-sixth day of December, A. D., 1876, by his certain writing, by him signed and sealed with his seal, and here in court to be produced, bearing date the same day, in consideration that the said plantiff agreed to take exclusive charge and control of a certain claim which the said defendant then and there held against the Government of the United States for insurance premiums paid for war risks on the ship "Addison” and the charters and freight of said vessel from October 24, 1862, to January 2, 1865, both inclusive as per schedules hereto, . . . amounting to eight thousand six hundred eighty-three and fifty one-hundreths dollars, more or less, and to prosecute the same before any of the courts of the United States, and upon appeal to the Supreme court of the United States, or before any departments of the Government, or before the Congress of the United States, and before any officer or commission or convention specially authorized to take cognizance of said claim, or through any diplomatic negotiations as may be deemed by him best for the interest of said defendant, covenanted that he would pay the said plaintiff a sum equal to twelve and one half per cent of the amount which might be allowed on said claim.</p> <p>"And the plaintiff avers that heretofore, to wit, on the twenty-sixth day of December, A. D., 1876, at said Kennebunkport he did take exclusive charge and control of said claim, and that heretofore, to wit, on the first day of January, A. D., 1877, at Washington in the District of Columbia and at divers other times and places he did prosecute said claim before the Congress of the United States and before the Court of Commissioners of Alabama Claims, and before all other officers, commissions and conventions authorized to take cognizance of said claim, as was by him deemed best for the interests of said defendant, whereby said Court of Commissioners at Washington aforesaid heretofore, to wit, on the 15th day of January, A. D., 1884, allowed upon said claim the sum of, to wit, four thousand and ninety-four dollars and twenty-three cents, (of which said sum the defendant has' received the sum of one thousand four hundred and forty dollars and seventeen cents,) whereby said plaintiff ought to recover the sum of five hundred and one dollars and forty-two cents being twelve and one half per cent of said sum $4094.23.</p> <p>And the plaintiff avers that heretofore, to wit, on the fifteenth day of January, A. D., 1884, he duly demanded payment of said sum of said defendant,” &c.</p> <p>The demurrer was overruled and the defendant excepted.</p> <p>Champerty : Lalhrop) v. Amherst Bank, 9 Met. 489 ; Lancy v.. Havender, 146 Mass. 615 ; Belding v. Smythe, 138 Mass. 530 ; Williams v. Fowle, 132 Mass. 385 ; Thurston v. Percival, 1 Pick. 415. In Manning v. Sprague, 148 Mass. 18, the Court say that by the contract made before the act of Congress, no suit was to be brought. Here a suit is contemplated. No contract for a suit in any of the cases relied on by plaintiff.</p> <p>It is against public policy that a contract to prosecute a claim before Congress, or before any legislative body, for a share thereof should be sustained. Coquillard v. Bearss, 21 Ind. 479 ; Trust v. Child, 21 Wall. 441; Weed v. Black, 2 MacArthur, 268.</p>

In equity. This was an appeal from a final decree in equity rendered by the court below, in favor of the complainant, where there was a hearing upon the bill and defendant’s demurrer.

On exceptions. This was an appeal from an award of the County Commissioners of Knox County assessing damages at $500.00 in favor of Gilman B. Ingraham, for the taking of the waters of Oyster River Pond to the amount of 750,000 gallons daily by the complainant corporation.

In EQUITY. Bill in equity heard on bill, answer and demurrer in the court below, where a decree was given sustaining the bill, and comes to this court on appeal by the defendant. The bill was originally brought by James Perry in his lifetime to compel Henry Knight to reform a deed of a certain right of way in Camden, Knox county, given by him to said Perry August 7, 1886. Perry having deceased since filing the bill, his heirs have been made parties by proper amendment.

<p>On exceptions.</p> <p>This was an indictment for violating statute of 1891, c. 61, § 17, with reference to taking porgies. The act was charged as having taken place in Casco Bay, July 18, 1891. The material part of the indictment is as follows :</p> <p>". . .At that part of Casco Bay, so-called, situated between Flag island, so-called, and Wood island, so-called, within the county of Cumberland and State of Maine, being the master and in control of the steamer Mary P. Bates then and there equipped and supplied with nets, to wit: purse and drag seines of more than one hundred meshes in depth, for the taking of fish, to wit: menhaden and porgies, did then and there unlawfully take and cause to be taken with said nets and seines large quantities of menhaden and porgies, to wit: six hundred barrels of menhaden and porgies, in and from the waters of Casco Bay, to wit: that part and inlet of said Casco Bay lying, extending and being between the islands aforesaid in the county of Cumberland aforesaid, each and every entrance to said Casco Bay and each and every entrance to that part and inlet of said bay lying, extending and being between the islands aforesaid, being less than three nautical miles in width from land to land, and said part and inlet of said bay between the islands aforesaid, being less than three nautical miles in width from land to land, to wit: from said Flag island to said Wood island; against the peace of said State,” &c.</p> <p>There was a second count alleging that the offense was committed in Sagadahoc county. A nol pros, was entered as to this count after verdict against the defendant. The indictment was found and the case tried in the Superior Court for Cumberland county.</p> <p>At the trial, the counsel for the respondent requested the court to give the jury the following instructions, which the court declined to give except as given in the charge.</p> <p>1. "That vessels of the United States do not violate chapter 61 of the public laws of 1891, by fishing for menhaden or porgies in the bay known as Casco Bay, extending from Cape Elizabeth to Small Point.</p> <p>2. "That said Casco Bay is not a small bay within the meaning of chapter 61, public laws of 1891.</p> <p>3. "That that portion of said Casco Bay, where the offense is alleged to have been committed, is within the county of Sagadahoc, and not within the county of Cumberland.</p> <p>4. "That the defendant must be tried either in Lincoln county where he was found, or in a neighboring county; and the county of Cumberland is not a neighboring county within the meaning of chapter 95, section 10 of the public laws of 1891.”</p> <p>The defendant took exceptions to the foregoing refusals and to the refusals to admit evidence as appears in the opinion.</p> <p>The case is stated in the opinion.</p> <p>Vessels enrolled under the laws of the United States do not violate the laws of the State of Maine by fishing in Casco Bay, the entrance from headland to headland of which bay is nearly thirty miles in width, because the jurisdiction of the State, so far as it applies to fisheries, does not extend to it; therefore,* the defendant cannot be held to have violated the laws of the State of Maine, by having fished in such bay. Com. v. Manchester, 152 Mass. 230; Manchester v. Mass. 139 U. S. 240.</p> <p>Large bays like Casco Bay, extending from Cape Small Point to Cape Elizabeth, a distance of nearly thirty miles across its entrance, is not a small bay within the meaning of the statute; it was not the intention of the Legislature to restrict fishing in large bays, such as Casco Bay!</p> <p>The language of the statute is, "in all small bays, inlets, harbors, or rivers, where any entrance to the same or any part thereof, from land to land, is not more than three nautical miles in width.”</p> <p>The object of the statute is very concisely stated in McLain v. Tillson, 82 Maine, 281, and while this court in that case referred to Casco Bay as being one to which the statute applied, yet it was not necessary to the decision of that case, and if the language of the court there is to be followed, there are no bays upon the shores of this State in which fishing is not prohibited. Under such a construction of the statute, the only place where porgy fishing can be lawfully carried on, will be in the open sea.</p> <p>The Legislature had two intei’ests to consider in the passage of the statute ; one, the preservation of the fishing interest, the other, the protection and preservation of the manufacturing industry growing out of the catching of porgies, and the obtaining of food fish, such as mackerel.</p> <p>Offense, if any, committed in Sagadahoc county.</p> <p>The language of the act of 1760, "northwesterly upon said Casco Bay to New Meadows creek or river,” means that the line shall be run northwesterly from Small Point upon Casco Bay, until it strikes the deep water and natural channel of the New Meadows river, which the chart shows to be in the vicinity of Mark island; and the variation of the compass in 1760 w'ould have carried it still farther to the southward of that island. The place which constitutes th.e mouth of the New Meadows creek, or river, must forever remain unknown, unless this court authoritatively speaks.</p> <p>It is apparent from the testimony, that the dividing line between Casco Bay and the New Meadows river, is not well defined.</p> <p>Map admissible in evidence. 1 Greenl. Ev. § § 139, 149 and note. Id. § 189, and note.</p> <p>Defendant not indictable in Cumberland county. Stat. 1891, c. 61; c. 95, § 10; c. 126, § 2.</p>

On exceptions. The court having overruled the defendant’s demurrer to the: indictment, found below in the opinion, he excepted to the ruling of the court. It was stipulated that, if the demurrer should! be-overruled, the defendant might plead over and the indictment stand for trial.

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

On exceptions. This was a real action in which the jury gave a verdict for the plaintiffs and the defendant excepted. The case is stated in the opinion.

<p>On motion and exceptions.</p> <p>This was a real action wherein the plaintiff demanded of the defendant a certain parcel of land in Buckfield village.</p> <p>From the exceptions it appeared that the plaintiff, on the 18th of May, 1878, gave to one Adna C. Cushman a demand note of one hundred and seventy-five dollars, to secure which she also gave said Cushman a mortgage deed of the premises in question. The plaintiff claimed that the note was surrendered to her, the plaintiff, on the same day that it was given, and therefore the _ mortgage, which was given to secure said note, became null and void ; and the plaintiff introduced in evidence a demand note of $175, running to Adna C. Cushman, and signed by herself, which she claimed was the identical note above mentioned. The defendant also introduced in evidence a note of $175, on one year’s time, running to Adna C. Cushman, purporting to be signed by the plaintiff, Mrs. Buck, claiming that that was the original note to secure which the mortgage was given. On the back of this note, produced by the defendant, were four indorsements.</p> <p>The only question of fact submitted to the jury by the presiding justice was, which of the two above mentioned notes was the note to secure which the mortgage was given.</p> <p>The jury returned a verdict for the plaintiff.</p> <p>The counsel for the defendant claimed,—</p> <p>1. That, if the plaintiff and Adna C. Cushman agreed, after the execution of the mortgage, to substitute the note introduced in evidence by the defendant for the note introduced by the plaintiff, then the plaintiff would be bound by the mortgage in the hands of an iunoeent purchaser for value, and could not recover in this action.</p> <p>2. That, if the plaintiff made certain payments on the mortgage and note when in the hands of such innocent purchaser, she would thereby be estopped from showing any irregularity between herself and said Cushman in regard to said note and mortgage.</p> <p>The presiding justice declined to so instruct the jury but did instruct them as follows :</p> <p>"If you find that the note which is held by the defendant, and produced by Mr. Hersey as her attorney, for $175, payable in one year, is the real note which is described in the mortgage, and to secure which that mortgage was executed, it being in the possession of the defendant and produced by her counsel,— then your verdict should be that the defendant did not disseize this plaintiff in manner and form as she has alleged; in other words, your verdict should be for the defendant, Mrs. Wood. If, on the other hand, you believe that is not the note described in the mortgage, and to secure which the mortgage was given, but that the note produced here by the plaintiff herself through her counsel, Mr. McGillicuddy, is the real note that was given, and that it was surrendered and given up to her with the intention thereby to render it invalid, — then the condition in the mortgage was performed, and the plaintiff, Mrs. Buck, is entitled to a verdict that the defendant did disseize in manner and form as the plaintiff has declared against her.”</p> <p>To these instructions and refusals the defendant took exceptions, and filed a general motion for a new trial.</p>

<p>Agreed statement.</p> <p>This was a real action. The opinion states the case.</p>

On exceptions . This was an action of assumpsit brought in the Lewiston municipal court which gave judgment for the plaintiff and the defendant appealed. At the trial in the court below a verdict was ordered for the defendant and the plaintiffs excepted. The case is stated in the opinion.

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

<p>On exceptions.</p> <p>This was an action of trover for one horse and sleigh. Demand was proved. Pleadings were the general issue with brief statement of title in defendant. Yerdict was for the plaintiff, with special findings of value of horse and sleigh. Defendant was a physician.</p> <p>The evidence tended to show that the property was owned by the plaintiff, who subsequently sold and delivered it with other livery stock, to one Reuben G. Gross, and that the purchase by said Gross was fraudulent as to plaintiff.</p> <p>It also tended to show that said Gross was, at the time of said pretended purchase indebted to the defendant for medical services, and after said pretended purchase gave defendant his note on time for such debt. That after such pretended sale, defendant purchased said horse of said Gross and gave in payment therefor said note before it was due.</p> <p>_ It also tended to' show that defendant at the time of his purchase of said horse was ignorant of any fraud by Gross in his purchase of the said livery stock of said Hurd.</p> <p>The Court instructed the jury that if they found the purchase by Gross ivas fraudulent as to Hurd, the defendant would not be an innocent purchaser, and they would find the defendant . guilty and assess the damages at the value of the horse and sleigh as they shall find it to be.</p> <p>The jury found for the plaintiff and the defendant excepted.</p> <p>Case presents but one question, was there a valuable consideration passing from defendant to Gross. Discharge of a preexisting debt is a valuable consideration. Defendant had a right to presume the title ivas in Gross. Lee v. Kimball, 45 Maine, 172; Butters v. Haughwout, 42 111. 18; S. C. 89 Am. Dec. 401; Homes v. Smyth, 16 Maine, 177 ; Norton v. Waite, 20 Maine, 175. The doctrine of the New York decisions leads to hardship and works interference with commerce.</p>

On exceptions. This was an action of assumpsit to recover for plaintiff’s services in driving logs for the defendant, in Passadumkeag river during the season of 1891, under a contract with the corporation.

On exceptions. Before the trial of the case in the Superior Court, for Aroostook county, the respondent having died, a motion to dismiss was sustained by the court on the ground that the action did not survive. The complainant took exceptions to the ruling.

<p> Indictment. Trial. Statements of Counsel. Practice. </p> <p>Three persons were indicted jointly for an assault upon a fourth who was also indicted for a contemporaneous assault upon them, the alleged assaults being but one occurrence. On the trial of the three co-respondents the prosecuting officer persisted in saying to the jury, against the objection of the respondents and without remonstrance from the court, that if these respondents should be convicted he would discontinue the other indictment:</p> <p>Held, that the introduction of such extraneous issue would have been cause for a new trial had not the judge in his charge so explained the matter to the jury as to remove all prejudice probably occasioned thereby.</p>

<p>On motion and exceptions.</p> <p>This was an action of trover brought by the plaintiff who claimed that certain bonds and bank books in the possession of the defendant belonged to her as a gift, causa mortis. The verdict was for the plaintiff in the sum of $4800, the full amount claimed.</p> <p>Under the general issue and brief statement of special matters of defense, the defendant claimed that no gift had been made, but that such claim was an after-thought; that the facts offered in evidence to support such gift did not show such delivery as is required by the rule of law as settled by the courts of this State ; and that the defendant being an administrator, the plaintiff was not a competent witness to anything which happened prior to the death of the alleged donor.</p> <p>The case is stated in the opinion.</p> <p>Counsel cited: Drew v. Hagerty, 81 Maine, 231, and cases cited in argument; also Gano v. Fisk, 43 Ohio St. 462 (54 Am. Rep. 819) ; Powell v. Hellicar, 26 Beav. 261; Seabright v. Seabright, 28 W. Ya. 212.</p>

<p>Gambling, Keeping place of resort for. B. S., c. 125, § 1.</p> <p>Upon an indictment for keeping a place resorted to for tlie purpose of gambling it is not necessary that the government should satisfy the jury that the respondent kept the place for the sole purpose or even the principal purpose of gambling.</p> <p>If the parties went there to obtain beer, and as an inducement to and as a means of obtaining it, they resorted to a gambling device, and this was allowed by the respondent, then he would be guilty.</p> <p>Whether the place was one resorted to for the purpose of gambling was for the jury to determine.</p>

On exceptions. This was an action of trover for a building. The court gave judgment for the plaintiff and the defendant excepted. The case is stated in the opinion.

In equity. This was a bill for specific performance, heard in the court below on bill, answers and proofs. A decree sustaining the bill was ordered by the court and the defendants appealed. The case appears in the opinion. Deed, mortgage and note sufficient memorandum under statute of frauds. Browne, Stat. Frauds, § § 346, 348, 382; Beckwith v. Talbot, 95 XT.

On exceptions. This was a petition for a mandamus against the Mayor and Aldermen of the city of Lewiston to compel them to meet the Common Council in joint convention for the election of subordinate officers as required by the city ordinances. The court having ordered a peremptory writ to issue, the defendants excepted. The case is stated in the opinion. The entire City Council should have been made defendants.

<p>Jury. Charge. Expression of opinion. Practice. Waiver. JR. S., c. 82, § 83.</p> <p>A charge to the jury does not contravene the statute that prohibits the presiding justice from expressing “ an opinion upon issues of fact arising in the case,” because of general observations made before commenting on the testimony; Or, because it contains affirmations of familiar principles for the application of evidence; Or, considerations of'an elementary and axiomatic character; Or, statements,, which, considered in their appropriate connection, do not manifest an expression of opinion.</p> <p>When counsel regard the charge as containing such expressions of opinion by the presiding justice, he should request the court to rectify the mistake before the jury retires.</p> <p>His failure to do so will be regarded asa waiver of any objection arising from that source.</p>

On motion and exceptions. This was au action on the case to recover damages for alleged slanderous words claimed by the plaintiff to have been spoken of and concerning him by the defendant. The verdict was for the plaintiff in the sum of $254.25, and the defendant presented the case upon exceptions and a motion for a new trial.

On report. This was a real action brought to determine the dividing line between adjoining owners. The case is stated in the opinion. A principal issue between the parties was that of adverse occupation, the plaintiff claiming that thereby he had acquired a title to the disputed premises.

<p> Contract. Promissory Note. Failure of consideration. </p> <p>A promise may be a good consideration for a promise when there is a complete mutuality of engagement, so that each has the right at once to hold the other to a positive agreement.</p> <p>Entire failure of consideration has the same legal effect as the total want of it.</p> <p>The defendant gave the plaintiff his promissory note for the following agreement: “Bangor, Jan. 20, 1880. Received of Walter L. Hunt 250 dollars for one original share of the Bluehill Central Mining Property as per written agreement, which entitles the owner to his proportional number of unassessable shares in the corporation when formed; procurable on presentation of this receipt to the Secretary of the company, by the holder or his order. Melvin Preble, Trustee.” The note and agreement constitute all the writings in the contract. Plaintiff then held the property in his own right and not as trustee. Defendant was unable to procure a certificate of the shares and refused to pay the note. Held, that he had made a personal contract with the plaintiff who undertook thereby to deliver certificates of stock which would have constituted the defendant a shareholder; also, that the plaintiff’s failure to perform this undertaking was a failure of the consideration of the note.</p> <p>All instruction, manifestly employed for the purpose of illustration only and not misleading, affords no grounds of exception.</p>

On exceptions. This was a quo warranto proceeding, brought to try the title of the respondent to the office of Mayor of the City of Lewiston. The Attorney General in his replication to the respondent’s answer alleges among other things the following facts: . . . That after the breaking of said ballot box as aforesaid, during said election, a large number of illegal ballots were deposited therein by the knowledge, consent, and fraudulent connivance of said ward officers. . . .

On exceptions. This was an action of covenant broken. The declaration alleges that the defendant city, on the 11th day of March, 1889, in consideration of the conveyance to it by Frances C. Little and others of a strip of land on the westerly side of Main street in said city, to be used in straightening and widening said Main street, covenanted and agreed with the said Frances C. Little and others, to cause the land on the opposite side of said Main street, which had before…

On motions and exceptions. This was an action of assumpsit to recover for supplies furnished by the plaintiff to a pauper whose settlement was alleged to be in the defendant city. The defendant pleaded the general issue with a brief statement alleging, in substance, that the alleged pauper, at the time when the supplies were furnished him, was sick at the house of his parents who were of sufficient ability to support and maintain him, and were bound by law to do so.

On exceptions. Judgment having been rendered in the Superior Court for Cumberland county, in favor of the plaintiffs, the defendant took exceptions. The case is stated in' the opinion.

On exceptions. This was a complaint in bastardy tried to a jury in the Superior Court, for Cumberland County, where the verdict was for the complainant, and the defendant alleged exceptions. The first exception is based on overruling the defendant’s motion to dismiss the proceedings because the complainant’s name was left out of the certificate of the oath of the complaint although it appeared immediately before in the complaint, of which the oath is a part.

On exceptions. The defendant demurred to an indictment found against her and which charges that she on the thirteenth day of April, in the year of our Lord one thousand eight hundred and ninety-one, and on divers other days and times between that day and the day of the finding of this indictment, at Kocldand aforesaid, in the county of Knox aforesaid, unlawfully did keep and maintain a certain place, to wit: a certain building occupied by the said Josie Osgood as a dwelling,…

On report, This was an action of assumpsit upon an accident policy, dated April 20, 1889, and under which the plaintiff sought to recover for injuries received by him April 23, 1890. Plea was the general issue with a brief specification relying for a defense, among other grounds, upon the two following conditions in the certificate or policy : Second.

On report. This was a real action to recover the Heard or Brown lot, the question in controversy being the title to a small triangular piece, or gore, of land lying southerly and easterly of a road located, in 1874, by the selectmen of South Thomaston, terminating on the beach at Ash Point.

<p> New Trial. </p> <p>In an action for breach of warranty in the sale of a horse, the breach relied on was a quarter-crack. The verdict was for the defendant. An important witness relied on by the defendant was the smith who usually shod the horse prior to the sale and testified that the horse had no quarter-crack. A witness, newly-discovered, testifies that the smith, after the sale, told him that it had a quarter-crack before the sale. It appearing doubtful whether the verdict is sustained by the weight of evidence and other witnesses being produced, since the trial, who testify that they saw the quarter-crack before the sale, the court consider that a new trial he ordered.</p>

On exceptions. A verdict was rendered in favor of the plaintiff, under the instructions of the court, for fifty-eight dollars; and he took exceptions.

On exceptions. Assumpsit for money had and received. The verdict was for the defendant' and the plaintiff took exceptions as appears in the opinion. Remedy: Hathaway v. Addison, 48 Maine, 440.

<p>Evidence. Witness. Intoxicating Liquors. Libel. Issue. B. <S'., e. 27.</p> <p>The credibility of a witness, upon whose testimony in part the issue is to be determined, is not regarded as collateral nor as immaterial.</p> <p>A material fact testing his credibility, may be contradicted by the opposing party, although called out by his cross-examination.</p> <p>Upon a libel against intoxicating liquors deposited and kept for illegal sale the issue, as made up by the pleadings under the statutes, is whether the claimant owned the liquors and had no intent to sell them in violation of law at the time when the complaint was made.</p> <p>The search, seizure and confiscation provisions of R. S., c. 27, are aimed at the present condition of the liquors and the present intent of the keeper, and not of the past.</p>

On report. This was an action of certiorari to bring up the record made up by the Court of County Commissioners, for Knox County, on the petition of the Lime Rock Railroad Company for assessment of damages on land taken by said railroad belonging to the estate of Samuel Pillsbury, late of Rockland, deceased, of whose estate the petitioner is administrator. The case is stated in the opinion.

On exceptions. This was an action of money had and received brought under E. S., c. 66, § 14, upon an appeal by the plaintiff from the decision of commissioners, on a claim made by the plaintiff, against his deceased wife’s estate. At the conclusion of the plaintiff’s testimony the court ordered a nonsuit and the plaintiff excepted to it. The case is stated in the opinion.

<p>On exceptions.</p> <p>This was a writ of entry to which the defendant filed at the January term, 1892, in the court below and after one continuance, without enlargement of time therefor, a plea of non tenure to one undivided half part and of nul disseizin to the remainder of the demanded premises. Thereupon the plaintiff moved to dismiss that part of the plea purporting to be a plea ■ of non tenure or disclaimer ; and the motion being overruled, a demurrer to the plea was filed and joined, which demurrer was overruled and the plea adjudged good.</p> <p>The pleadings are as follows :</p> <p>"And the said Sarah P. Wright comes, and defends her right when, etc., and as to one undivided moiety of the said piece or parcel of land with the buildings thereon declared on in plaintiff’s writ, says, she cannot render the same to the said plaintiff because she sayfe, that she is not nor was at the time of the suing forth the writ aforesaid of the said plaintiff or at any time since tenant thereof as of freehold; and is not and has not been in possession thereof, and wholly disclaims the same, and this she is ready to verify. Wherefore, as to that moiety of the said piece or parcel of land with the buildings thereon, she prays judgment of said writ and that the same may be quashed, etc.</p> <p>"And as to all the residue of the said piece or parcel of land with the buildings thereon, the said defendant says, that she did not disseize the said plaintiff of the same residue of the said piece or parcel of land with the buildings thereon, in manner and form as the said plaintiff hath thereof in his writ and count aforesaid above supposed, and of this she puts herself upon the country,” etc.</p> <p>(Motion.) "And now comes the plaintiff, George Hazen, and moves this honorable court that so much of said defendant’s plea as purports to be a disclaimer, or plea in abatement, be disallowed and stricken out, the same not being legally in the case, or properly before this court, not having been seasonably or properly filed in accordance with the laws of this State and the rules of this honorable court.”</p> <p>The motion having been overruled by the presiding justice, the plaintiff reserving exceptions to the overruling the motion, demurred to defendant’s plea and the defendant filed a joinder. The demurrer was overruled and the plea adjudged good. Plaintiff excepted to both rulings.</p> <p>The plaintiff claims that his motion was improperly disallowed because the plea, so far as it purported to be in abatement, was not properly filed ; that the overruling of the motion in general terms by the court was an allowance of the plea as and for the purposes pleaded, and that, being so allowed, the plaintiff was bound, unless he demurred to reply thereto and to tender and abide an issue which was not legally in the case. If the motion was wrongfully disallowed, it follows that the demurrer to the plea should be sustained.</p> <p>It became material for the plaintiff to demur, for the refusal of the defendant to alter his pleadings imposed upon the plaintiff the necessity of tendering an issue, to sustain which he was required to adduce more evidence than he would have been required to adduce in support of his case, had the pleadings been properly framed. 1 Chit. PI. 694.</p> <p>The plea was ¿Iso bad as above stated for lack of proper verification and for non-conformity to the statute.</p> <p>Counsel cited: E. S., c. 104, § 6, Eule VI; Ayer v. Phillips, 69 Maine, 50; Cunningham v. Webb, lb. 92; ChaplinY. Bather, 53 Maine, 275 ; Fogg Y.Fogg, 31 Maine, 302 ; Bellamy v. Oliver, 65 Maine, 108 ; Morse v. Sleeper, 58 Maine, 335 ; Putnam, &c., School v. Fisher, 38 Maine, 327.</p>

<p>On report.</p> <p>Bill in equity, heard on bill, answer and agreed statement, so far as the latter is admissible, to obtain the instruction of the court .upon the will of John Tolman, of Camden, Knox county, and under the following facts :</p> <p>August 10, 1881, the testator, having conveyed his homestead farm to his son, Minott, received in payment therefor, twelve promissory notes of said Minott for one hundred dollars each, secured by mortgage of the same property.</p> <p>On the 29th of the same month the testator made the will now before the court, in the second clause of which it is provided, "if at my decease any portion of said notes shall remain unpaid, or any portion of the proceeds thereof shall remain unexpended, I give and bequeath such unpaid and unexpended monies to my executor hereinafter named, in trust, to be by him paid to my son John M. Tolman,” &c.</p> <p>September 9, 1890, Minott conveyed back said farm to the testator, and the testator surrendered said notes to Minott and discharged the mortgage.</p> <p>On the same day the testator conveyed the same property to Henry H. Tolman, his grandson and son- of said Minott, and received in payment six notes of said Henry H. for one hundred dollars, each, also secured by mortgage of the farm.</p> <p>The testator died March 28, 1891, possessed of the last named notes, all unpaid. The question presented for decision is, do said notes of Henry H. Tolman for six hundred dollars go, to the executor in trust under the second clause of the will, or are they to be distributed as intestate property. It was agreed that the following agreed statement of the parties, so far as the'same would be legally admissible in evidence, might be considered by the court in giving construction to the will.</p> <p>The testator left four children, all of whom are named in the will. The real estate named in the first clause of the'bill and in the several clauses of the will consisted of the testator’s homestead farm.</p> <p>Some years previous to the date of the will the testator conveyed said farm to his son, John M. Tolman, as a gift, but afterwards and before the will was made, John M. became involved in debt and the testator paid his debts and took back a deed of the farm.</p> <p>About the time of the conveyance of the farm by him to his said son, Minott Tolman, August 10, 1881, as stated in the first clause of the bill, the testator, having previously made provision for his support during his life-time by his daughter, Insania E. divided about $3000 among his three children, Minott, Lisania E. and Danson C., which was intended by him as their distributive share of his estate, which included all his estate, except the twelve notes of said Minott Tolman for one hundred dollars each, named in the first clause of the bill and which, with the provisions in the will afterwards executed, were intended as the distributive shai’e of John M. Tolman.</p> <p>Minott Tolman had no possession of the farm while he held the title under his deed, dated August 10, 1881, but during that period the farm was occupied by said Henry H. Tolman under an arrangement made with him by his grandfather, the testator, to whom he accounted and said Henry II. Tolman has ever since continued in possession.</p> <p>Before the re-convcyance of said estate by Minott Tolman to the testator, said John M. Tolman had procured a divorce from his wife, and had been granted a United States pension and was, at the time of said re-conveyance and at the testator’s death, an inmate of the Soldiers’ Home at Togus.</p> <p>Said John M. Tolman had three children living, to wit: Isabel Cx. Tolman of Warren, aged twenty-one years, Lulie Anna Tolman of Rockport, aged fourteen years and Delora Ella Tolman, aged twelve years, of Rockport.</p> <p>Said John M. Tolman at the date of said will was and ever since has been physically incapacitated from maintaining himself and children and is mentally somewhat deficient; and the testator had never during his lifetime made him any advancement out of his estate, except as hereinbefore stated.</p> <p>The assets of the testator’s estate were as follows :</p> <p>Six notes of H. H. Tolman, including interest, $622.50 C. B. Ingraham note, including interest, 147.25</p> <p>Deposit in Dockland Savings Bank, 112.50</p> <p>$882.25</p> <p>The testator left no debts and the only charges to be paid out of his estate are expenses of administration and the cost of the erection of suitable gravestones.</p> <p>Counsel cited: 2 Dedf. Wills, 2nd Ed. 152 and cases, 153 ; 2 Williams Exors. 1320,1325; Harv. Unit. Soc. v. Tufts, 151 Mass. 76; Beck v. McGinnis, 9 Barb. 35; Doper Leg. 337; Mitchell v. Danforth, 12 Cush. 330, 331; 3 Pom. Eq. § 1131, notes.</p> <p>Where the proceeds of the property devised can be traced and identified, such proceeds pass under the general provisions in the will. Stuart v. Walker, 72 Maine, 154. Transfer of farm to Henry not a sale or new arrangement to affect the relation of the old indebtedness. Barnett v. Barnett, 43 N. J. Eq. 297.</p>

<p>Tax. Sale. Notice. Trespass. Possession. - R. 8., c. 6, §§ 188, 205. Stat. 1S26, c. 337, § 8.</p> <p>To effect a valid sale of land of non-residents for taxes assessed thereon, there must be a punctilious compliance with the statute provisions preparatory to, as well as those governing, the sale. Held; that a tax title is void for irregularity where the lists, required by R. S., c 6, § 188, to be published three weeks successively within three months after the collector’s return, were not so published. In this case the return was made February 25, 1890; tlie three weeks publication should have been completed on or before May 25, 1890; but it was first published May 22, and the last on June 5, 1890; and the court orders the deposit made by plaintiff pursuant to</p> <p>R. S., c. 6, § 205, to be returned to him.</p> <p>A deed without a seal conveys no title.</p> <p>Of the possession insufficient to maintain trespass against one not a mere stranger but claiming title.</p> <p>Dunn v. Snell, 74 Maine, 28, followed.</p>

On motion and exceptions. This was an action of assumpsit on a promissory note, which was admitted to be a renewal by several intermediate renewals of a note dated November 7, 1888, viz : $300. Bar Harbor, Nov. 7, 1888. Three months after date I promise to pay to the order of C. L. Stevens three hundred dollars at any bank or banking house in Maine. Gr. A. Barron.” [Indorsed,] C. L. Stevens. Gr.

Agreed statement. This was an action of debt brought in the name of the inhabitants of Paris for the collection of a tax assessed by the assessors of said town against the Norway Water Company, as nonresidents, on its property in the town of Paris, viz : on its aqueducts, pipes, conduits, hydrants and franchises within said town, as real estate. The assessors of said town were duly elected and qualified at the annual meeting in March, 1890, duly called.

<p>Lien. Contract. Voluntary Service. B. S., c. 91, § § 30, 32.</p> <p>A mechanic's lien is dissolved by a failure to file with the town clerk a statement of the amount due him within thirty days after lie ceases labor. The mechanic’s lien though arising by 'virtue of express statute is dependent on the existence of contract and the obligation of debt. There can be no . lien in favor of a party who voluntarily performs a service without express or implied promise of payment.</p> <p>Where the plaintiff loaned his tools for a few minutes, and rendered the trifling service of receiving from the foreman’s hand a board which might otherwise have been allowed to fall without danger of injury; Hell, that they were only spontaneous acts of friendly accommodation performed under circumstances which distinctly repel any implication of a promise to make payment. They were not labor which creates the obligation of debt and which draws after it the security of a lien.</p>

<p>On exceptions.</p> <p>This was a petition brought under R. S., c. 70, § 25, in the Insolvent Court, for Androscoggin County, by creditors of the Dennison Paper Manufacturing Company, insolvent, and to obtain a decree expunging the claim of $134,815.07 proved by Morey & Company, against the insolvent’s estate. The petition alleged that said Morey & Company had accepted an unlawful preference.</p> <p>The procedure in the case is stated in the opinion. The view taken by the court renders it unnecessary to report the issues raised upon the petition and answer by the parties, in the insolvent court, where a pro forma decree only was entered dismissing the petition.</p>

<p> Corporation. Constitutional Law. Sorting and Rafting Logs. Spec. Laws, Massachusetts, Feb’y 13, 1808, c. So ; Spec. Laws, Maine, 1891, c. 174. </p> <p>A charter was granted to the proprietors of Machias Boom by the Commonwealth of Massachusetts, by act passed February 13, 1808, for the purpose of laying- and maintaining a boom across the West Branch of Machias River; and therein specified fees and tolls were allowed for “ rafting- and securing” logs and timber. The legislature, however, reserved the right at all times to revise and alter said fees and tolls.</p> <p>By special act of the legislature of this State passed in 1891, c. 174, the fees and tolls were changed, and a rule established by which to fix the price for “ sorting and rafting” logs and timber so rafted and secured at said boom and also for “ boomage” of logs and timber.</p> <p>Meld: That the powers reserved to the state had not been transcended, and there had been no impairment of the obligation of contract within the meaning of the contract clause of the constitution.</p> <p>Legislation oftentimes may be such as to injuriously affect the interests of those with whom the contract exists, and yet impair no obligation of contract.</p> <p>No additional duty independent of that contemplated by the charter is imposed upon the corporation by the insertion of the word “sorting” in the amendatory act.</p> <p>The duty of sorting and rafting according to ownership is imposed by the charter under the term “rafted.”</p>

On motion and exceptions. The case is stated in the opinion. The view expressed by the court tipon the motion renders a report of the exceptions unnecessary.

<p> Promissory Note. Accommodation Indorser. Agency. Verdict. </p> <p>If one affixes Ms signature to a printed blank for a promissory note and intrusts it to another for the purpose of having the blanks filled up and thus becoming a party to a negotiable instrument, he thereby confers the right and such instrument carries on its face an implied authority to. fill up the blanks and complete the contract at pleasure, so far as is consistent with its printed words.</p> <p>As to all purchasers for value without notice, the person to whom a blank note is thus intrusted must be deemed the agent of the signer; and an oral agreement between such principal and agent, limiting the amount for which the note shall be perfected, cannot affect the rights of an indorsee who takes the note before maturity for value, in ignorance of such agreement, with a different amount written in it.</p> <p>Proof of fraud in the inception of the note undoubtedly casts upon the indorsee the burden of showing that he took it for value before maturity without notice of the fraud. But proof that he paid full value for the note before maturity raises a presumption that he purchased it in good faith without notice of the fraud.</p> <p>The court may properly instruct the jury to return a verdict for either party when it is apparent that a contrary verdict could not be sustained.</p>

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

On motion and exceptions. This was an action to enforce a lien under K,. S., c. 91, § 30. The suit was brought by the party furnishing labor and materials against the builder or contractor, who is in insolvency, and the building and land on which it stands.

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

<p>On exceptions.</p> <p>This was an action on a promissory note of $2500.00, given by the defendants to the plaintiff for timber and wood land bought by them September 28, 1888. The deed described the premises by metes and bounds and concluded with the words " containing eight hundred acres more or less.”</p> <p>The case was tried to a jury in the Superior Court, for Kennebec county, and a verdict was returned for the plaintiff in the sum of $2000. From the defendants’ exceptions it appeared that the defendants testified that the plaintiff represented to them, at the time of the purchase, that the parcel of timber and wood land contained eight hundred acres. The land was somewhat irregular in shape, and was not measured out by the parties till this suit was commenced. A surveyor then surveyed it, when it was found to contain only four hundred acres and a fraction of an acre. It also appeared that, before the purchase, the defendants had opportunity to examine the land and did examine it by going over it in person, and by sending an agent over it to ascertain the amount of timber upon it, and that the principal value of the land was for the timber upon it; that the land was bounded on two sides by the public highway. The plaintiff testified that, at the time of the purchase, he gave no assurance to the defendants that the parcel contained eight hundred acres, or any other number of acres, but that he told the defendants where the land was and that they could go and see it, •and that it was stated to him by them afterwards that they had done so before the trade was consummated for the land.</p> <p>It became an important question at the trial, whether the plaintiff did or did not represent that the land contained eight hundred acres, the defendants contending that such a representation was made by the plaintiff, which they relied upon; and the plaintiff contending otherwise, which was one of the issues presented to the jury.</p> <p>It also appeared that the defendants operated upon the land two winters, cutting a large part of the wood and timber on the same before they raised any question as to the number of acres.</p> <p>At the trial, the plaintiff claimed that the phrase "more or less ” in the deed, was evidence that the land was not bought by the defendants with any understanding that it contained eight hundred acres, and that said phrase relieved him from all responsibility for the fact that the land did not contain eight hundred acres in any event.</p> <p>The presiding judge instructed the jury as follows :</p> <p>"Now, it is claimed by the plaintiff’s counsel that there was no representation as to the size of the parcel in the deed, because the words 'more or less’ are used to qualify the quantity, eight hundred acres, more or less. The plaintiff contends that the use of these words should be held to mean that he did not intend to be bound at all by the amount of the land, but such a construction, gentlemen, is too broad. The words as used in the deed mean that the grantor, having no precise knowledge as to the quantity, guarantees that there are sornewheres near or about" eight hundred acres. Unless there is a sufficient description otherwise to make the amount certain, or reasonably certain, the words are equivalent to 'about’ or 'approximating’ eight hundred acres. They are words used simply to exclude a construction that the precise quantity of land named should be conclusive upon the parties. It gives the seller reasonable margin for uncertainty and moderate latitude in the performance of his contract. A deficiency of á few acres, perhaps a dozen, or even fifty acres in such a large parcel as eight hundred acres, more or less, might be allowed by these words ; but would it in half of the quantity, four hundred acres ? Surely it would not, and such a deficiency, if it was shown, might sustain an inference of fraud, but it is not conclusive of fraud.”</p> <p>The entire charge was made a part of the case.</p> <p>To the foregoing instructions of the court to the jury as to the effect of said phrase in the deed, and particularly that the aforesaid pirrase might excuse the plaintiff for the loss of fifty acres, the defendants excepted.</p> <p>The charge sustains the defendants’ contention as to the construction of the words " more or less ” and he is not aggrieved. Soule v. Winslow, 66 Maine, 447 and cases.</p> <p>Deceit: Garitón v. Rockport Ice Go. 78 Maine, 49, and cases; Medbury v. Watson, 6 Met. 259 ; Thompson v. Mansfield, 43 Maine, 490; Houghton v. Hash, 64 Maine, 477.</p> <p>Defendants did not base their claim to a reduction in price simply on the ground that the deed called the land eight hundred acres, but upon the fact that, at the time of the purchase, the plaintiff assured them that it contained eight hundred acres. They proved this fact by testimony dehors the deed.</p> <p>The chief point of objection to the charge of the presiding judge is what he said to the jury as to the allowance, or deduction, which he told them they might make from the eight hundred acres in consequence of the phrase "more or less.” His instruction on that point ivas, in substance, that they might assign a loss of fifty acres or justify without reduction in price the value of fifty acres on account of that phrase. So that, although they found that the contract was for eight hundred acres, they might render their verdict on a basis of seven hundred and fifty acres as the amount of land bargained for. Under this instruction, the jury gave their verdict for a sum larger by the price of fifty acres than it would have been if the court had held them up to the contract actually made. . The real question raised by this bill of exceptions, as a matter of law, is this: Was the judge correct in telling the jury that the phrase "more or less” inserted in the deed, as a matter of law, was in effect a deduction of fifty acres from the number of acres bargained for? For that was in substance what he told the jury they might deduct from the number of acres to start with.</p> <p>Counsel cited : 1 Story Eq. Jur. § 141; Hill v. Buckley, 17 Ves. 395 : Putnam v. Hill, 2 Russell, 520 ; Belknap v. Sealy, 14 N. Y. (4Kernan) 143; Oouse v. Boyles, 38 Am. Dec. 514.</p>

<p>Error. Judgment. Mecord. M. 8.. c. 79, § 11; a. 102, § § 7, 8.</p> <p>Where the plaintiff in a writ of error submits the case to the law court upon anything less than a full transcript of the extended, unabbreviated record, the writ of error will be dismissed.</p>

<p>On report.</p> <p>Statute general and applies to all laborers. Hart v. JR. JR. 121 Mass. 510; Lyon v. JR. R. 127 Mass. 101; 'Parker v. R. R. 115 Mass. 580 ; 1 Redf. R. R. *586, and notes; Kent v. R. R. 12 N. Y. 628; Aiken v. Wasson, 24 N. Y. 482; JBalch v. R. R. 46 N. Y. 521.</p>

On report. This was a real action brought to recover certain land in Eden, Hancock county, and which the plaintiff claimed as one of the children and heirs-at-law of Samuel E. Lyon, late of New York city, deceased, or as her distributive part of the land as if her father had died intestate.

On report. This was a complaint for flowage. The complaint is dated August 12th, 1891. Plaintiff received his title by deed from Southard Walker, November, 1876, and mortgaged the premises back on the same day to Walker, to secure the purchase money, $800. This mortgage remains unpaid. The premises were sold on execution, at sheriff’s sale, three times, viz: they were twice sold on June 15, 1891, and sold again on December 19, 1891.

<p>On report.</p> <p>Bill in equity, heard on bill, answer, proofs and agreed statement.</p> <p>The case appears in the opinion.</p>

On exceptions. The case is stated in the opinion. There was a verdict for the plaintiff in the sum of $426.03. He contended that he was entitled to recover the full amount of the policy, the property having that value, viz: $800.00, and after the verdict excepted to the instructions of the court.

<p>On report.</p> <p>Bill in equity, heard on bill, answer and demurrer. The bill praying for specific performance was filed January 6,1891, against the city of Biddeford, the mayor, aldermen and common councilmen. Its material allegations are that "on the 24th day of February, A. D., 1888, said city of Biddeford by its written agreement-under seal for a good and sufficient consideration, to it moved, agreed with your complainant to maintain the drain or sewer herein described, and to extend said drain or sewer within a reasonable time from said date; . . . Your complainant further alleges that said city of Biddeford has neglected and refused from said 24 th day of February, A. D., 1888, to the date of this bill of complaint, to extend said sewer or drain over and across said land as aforesaid. And your complainant alleges upon information and belief that a reasonable time to build and extend said sewer or drain has long since elapsed.</p> <p>"Your complainant further alleges that by reason of the nonperformance of said agreement by said city of Biddeford, his property is greatly damaged, and he is prevented from using his land in said Biddeford over which said city agreed as aforesaid to extend said sewer or drain, for building-lots as he otherwise would do.”</p> <p>The bill then alleges that the defendants, personally named, are the mayor, aldermen and common councilmen, and charges them with the same negle ct and refusal which are charged against the defendant city, &c.</p> <p>Statute, R. S., c. 77, § 6, par. XI, is not limited in effect by reason of its being accompanied by a re-enactment of the various restricted provisions of former statutes. Woodbury v. Gardner, 77 Maine, 68. Jurisdiction inequity: Aldrich Eq. PI. and Pr. pp. 22, 23, 24; Jonesv.JVewha.il, 115 Mass. 248-9. Sewer cannot be extended except by a vote of the city council. That body must act in order to furnish the means and authority to execute the contract. Relief sought would not be of same measure and kind in law. Legal remedy would be inadequate.</p> <p>The contract was ultra vires, the city having no authority to enter into same.</p> <p>The general statutes providing for the laying out 'and construction of public drains and sewers is the only rule to be followed.</p> <p>If the contract is not ultra vires, then the only remedy is by an action at law and not in equity. See R. S., c. 16, § 2. If the contract was one which would be binding upon the city, any liability upon the part of the city, and remedy for same, would be governed by § 9, c. 16, E. S.</p> <p>Provision being made by general statute law for the laying out and construction of public drains and sewers by municipal officers, a town has no such authority incidental to its corporate powers or in the exercise of its corporate duties. Bulger v. Eden, 82 Maine, 552. A town is not liable for any acts of its officers when they act beyond the scope of their authority, even if under color of right. Small v. Danville, 51 Maine, 359; Barbour v. Ellsworth, 67 Maine, 294.</p> <p>The pleadings show that no liability, created by E. S., c. 16 § 9, exists, therefore respondent would not be liable as set forth in the bill.</p>

<p>On report.</p> <p>The ca3e appears iu the opinion.</p>

<p>On report.</p> <p>The first of these cases was a petition for mandamus and the other a probate appeal. Both arose from the same facts and were heard together.</p> <p>The material facts will be found in the opinion. The petition for mandamus ivas filed against the Judge and Register of Probate for Knox county, and William H. Clark Pillsbury, who had been adopted March 19,188.9, prior to their decease, by his grandparents, Samuel and Sarah M. Pillsbury, late of Rockland, deceased, and also the other heirs of said Samuel and Sarah M. Pillsbury.</p> <p>A principal contention of the petitioner was that the decree of adoption, otherwise regular, was granted out of court at Camden when and where there was no term of the court, instead of at Rockland, which was the place provided by law for its regular sessions; and that the record, originally showing the decree was made at Rockland, had been changed to show it Avas made at Camden, and again subsequently changed to the original place; and that the record, as the same now exists, is wholly unauthorized and Amid, and should be amended and corrected in accordance Avith the facts, &c.</p> <p>The probate appeal was a petition to the probate judge, upon the same state of facts, who after the notice and hearing dismissed the petition. The adopted son introduced in evidence a second decree of adoption which will be found in the opinion of the court.</p> <p>Probate court has power to correct its own records. B. S., c. 63, § § 1, 14; Bowers v. Hammond, 139 Mass. 365 ; Waters v. Slickney, 12 Allen, 1; Bierce v. Prescott, 128 Mass. 140 ; Preem. Judg. § 73, and cases; Newell v. West, 149 Mass. 520, 531, and cases; Batch v. Shaio, 7 Cusb. 282. Writ should be granted. B. S., c. 77, § §3, 5; Williams v. Go. Oom. 35 Maine, 346; Dennett, Pet’r, 32 Maine, 508 ; Carpenter v. Co. Com. 21 Pick. 258 ; R. R. Com. v. R. R. 63 Maine, 269, 279 ; Baker v. Johnson, 41 Maine, 15; 3 Black. Com. 110; Smith v. Titcomb, 31 Maine, 272; Kendall v. U. S. 12 Pet. 524; Ex parte Hoyt, 3 Pet. 279 ; People v. Judges, &c., 20 Wend. 658; Ken. Toll-Bridge, Petr’s, 11 Maine, 263 ; Am. & Eng. Ene. L. Vol. 14, pp. 121, 127 ; State v. Van Ells, 69 Wis. 19 ; State y. Engel, 22 Am. St. Pep. 655, 656, 658, note; Smith y. Moore, 38 Conn. 105 ; Anderson v. Pennie, 32 Cal. 265 ; Taylor v. Gillette, 52 Conn. 216 ; Hendee v. Cleveland, 54 Vt. 143 ; Rand v. Townsend, 26 Vt. 670 ; Woodstock v. Gallup, 28 Vt. 537 ; Hall v. Crossman, 27 Vt. 297 ; Moore v. Chester, 45 Vt. 503 ; High Ex. Pern. § 230 ; Lewis v. Ross, 37 Maine, 230 ; White v. Blake, 74 Maine, 489 ; Rockland Water Co. v. Pillsbury, 60 Maine, 425. Parol evidence admissible. Willard v. Whitney, 49 Maine, 239 ; State v. Hall, 49 Maine, 412; Spaulding v. Record, 65 Maine, 220. Ministerial duty. Manning v. Fifth Parish, 6 Pick. 16 ; Taylor v. Gillette, 52 Conn. 216; State v. Edwards, 17 Atl. Beport, p. 974 (N. J. 1889). Probate Court. White v. Riggs, 27 Maine, 114. No vested rights under a void decree. Pettee v. Wilmarth, 5 Allen, 144. If no remedy by mandamus it must be by appeal. P. S., c. 63, § § 22, 28; Wiggin v. Scott, 6 Met. 197; Deering v. Adams, 34 Maine, 41; Veazie Bank v. Young, 53 Maine, 558 ; White v. Riggs, 27 Maine, 114.</p> <p>The record as set out in the petition shows a legal adoption. Parol evidence not admissible to contradict the record. 1 Greenl. Ev. 275 ; Holden v. Barrows, 39 Maine, 135 ; Willard v. Whitney, 49 Maine, 235; Sayles v. Briggs, 4 Met.; Kendall v. Powers, lb. 553. Allegations in petition insufficient. Woerner, Yol. 1, p. 334. Mandamus does not supersede legal remedies, but supplies the want of them. High Ex. Rem. § 10. Relator not interested in the matter of adoption. R. S., c. 67, § 36; Gray v. Gardner, 81 Maine, 558; Peering v. Adams, 34 Maine, 41; Levant v. Go. Com. 67 Maine, 434; Bath Bridge Go. v. Magoun, 8 Maine, 292. Cannot have two remedies. High, Ex. Rem. § § 10, 16, 177, 188, 190-Shall come into court with clean hands. Ib. § 26. Must show an equity for intervention. Belcher v. Treat, 61 Maine, 577. Relator has no status in the probate appeal, cases supra. Records and vested rights: Jackson v. Esten, 83 Maine, 165; Boynton v. Grant, 52 Maine, 220. Counsel also cited : 1 Woerner, p. 331, and cases ; Bradbury v. Jefferds, 15 Maine, 212 ; Johnson v. Johnson, 26 Ohio St. 357; Alexander v. Kelson„ 42 Ala. 462; Bryant v. Horn, Ib. 496; Wolf v. Banks, 41 Ark. 104, 107; State v. Probate Oourt, 33 Minn. 94; Browder v. Faulkner, 82 Ala. 257 ; 1 Woerner, p. 331, Note 8, and cases; Ib. p. 328, and cases; Freem. Judg. § 69, and cases? Makepeace v. Lukens, 27 Ind. 435-7; Wynne v. Thomas-, Willes R. 563; Bay v. Lister, And. 351; Bac. Abr. Tit.. Amend. F. 98; Abners v. Whitney, 1 Sto, 310, 312; Russell v. U. S. 15 Ct. Cl. 168, 171; Colby v. Moody, 19 Maine,. Ill, 113; White v. Blalce, 74 Maine, 489, 493; Hall v. Williams, 10 Maine, 290-1; Limerick, Pet’r, 18 Maine, 186-7 ;-. Balch v. Shaw, 7 Cush. 282; 1 Greenl. Ev. 275-280; Com.. v. Slocum, 14 Gray, 395 ; Harlow v. Harlow, 65 Maine, 449 ; Parcher v. Bussell, 11 Cush. 107; Potter v. Webb, 2 Maine, 257; Bean v. Ayers, 70 Maine, 432; Marsh v. McKenzie, 99 Mass. 64; Pettee v. Wilmarth, 5 Allen, 144; Hall v. Marsh, 11 Allen, 563.</p>

On report. This was a bill in equity to redeem a mortgage. (Abstract of bill). I. That on the third day of March, 1874, the complainant was seized in fee of seven undivided eighth parts of a certain parcel of real estate therein described, situate in Pock land. II.

Agreed statement. This was an appeal by complainant from an award 'of damages in a proceeding, by the city of Rockland, to locate and establish the bounds of Main street in said city, and which' bounds had never been legally established. The case was submitted upon the following agreed statement of facts: Appeal from the award and proceedings of the city of Rock-land, establishing the bounds in Main street in said Rockland, in 1890.

On report. The facts appear in the opinion. Deposition of Coombs not admissible. Simpson v. Dix, 131 Mass. 179, 185; Simpson v. Carleton, 1 Allen, 109, and cases. Plan annexed is at best only a copy of a copy enlarged. Plan must be recorded. Murdocks. Chapman, 9 Gray, 156; Farnsworth v. Taylor, lb. 162 ; Rogers v. Parker, lb. 445, and cases cited ; Taylor v. Millard, 118 N. Y. 244, 251.

On motion and exceptions. This was an action of trespass quare clausum, in which the jury returned a verdict for the defendant.

On report. This was an appeal in equity, heard on bill, answer and a report of the evidence before the jury on issues of fact submitted to them. The case is stated in the opinion.

This was a writ of entry in which both parties claimed title-from one Willard H. Chadwick. The plaintiff claimed title by virtue of an attachment made November 3,1884, in a suit brought by her against said Chadwick,-and a sale on the execution which issued on the judgment .recovered in the suit.

<p>On exceptions.</p> <p>This action was commenced in the Lewiston Municipal Court December 10, 1890, and was for the sum of $116.15, claimed to be due from the defendant; being the balance due upon a contract for building a house for defendant.</p> <p>December 6, 1890, priorto commencement ofthe above action, a suit was begun in tbe court below against Robert Henderson, one of the above plaintiffs, in favor of John Sweeney, and the said Maggie Cashman was therein summoned as trustee of the said Robert Henderson.</p> <p>The action,- Sweeney v. Henderson, was entered at the January term, 1891, of the Supreme Judicial Court for Androscoggin county, at which time the said Cashman made disclosure in due form, showing the amount of $100 due from her to Robert Henderson and Adoniram Hasey, above named, co-partners.</p> <p>The case was continued till the April term of said court, when the defendant was defaulted, and on hearing on the trustee disclosure, the trustee, Cashman, was charged by consent as trustee of the said Henderson, for the sum of $50, less her costs, no evidence beyond the disclosure, appearing as to the rights of the partners, Henderson and Hasey, in the fund disclosed; and, Hasey not being made a party to said proceedings, either voluntarily or by being summoned therein.</p> <p>Judgment duly issued thereupon against the principal defendant, Robert Henderson, and against said Cashman as trustee, for said $50, which sum she has since paid upon execution duly issued thereon within thirty days from the date of judgment.</p> <p>The present case came up for trial in the Lewiston Municipal Court at the June term, 1891, and upon hearing, the judge presiding found as follows : .</p> <p>"That the judgment of the Supreme Judicial Court charging trustee and the payment of $50 upon execution thereon was a bar to the recovery in this action of the amount so paid on the trustee execution.”</p> <p>"The court thereupon found for the plaintiffs in the sum of $50, (the extras claimed above the hundred dollars being disallowed,) and the $50 paid as aforesaid, on the trustee execution being deducted.”</p> <p>To the above finding as to the effect of the judgment in the trustee suit, being a finding of law, and as to the payment of the $50 upon execution thereon as a bar to the recovery of said $50 in this action, the plaintiffs excepted.</p> <p>McGillicuddy and Morey, for defendant. The judgment charging defendant as trustee of Henderson in the first suit and her payment is a bar and protects her in this suit. Ladd v. Jacobs, 64Maine, 347 ; Webster v. Lowell, 2 Allen, 123 ; Foster v. Jones,</p> <p>15 Mass. 185; Doyle v. Boutwell, 1 Allen, 286; Morrison v. New Bedford Lnst. for Savings, 7 Gray 269; Wheeler v. Aldrich, 13 Gray, 51; Merriam v. Rundlett, 13 Pick. 511; li. S., c. 86, § 76; Drake on Attachments, § §, 617, 692, 695, 697, 700, 706, 710, 711-15, and 713.</p>

On report. This was an action for money had and received. The writ is dated September 11, 1888. Plea was the general issue with brief statement that the action was barred by the provisions of E. S., c. 87, § 12; and c. 81, § 82.

On report. Bill in equity, heard on bill and answers which admitted the facts stated in the bill. The case is stated in the opinion. Counsel cited : Story’s Eq. § § 1431, 1434, 1435, note 2, 1436-7, 1444; JEx parte Quintín, 3 Yes. Ch. 248; 1 Pom. Eq. § § 189, 541; 1 Spence Eq. 641-2, 651; 2 Eq. Lead. Cas. pp. 1338, 1347; Jeffs v. Wood, 2 P. Wins. 129; Tucker v. Oxley, 5 Cranch, 35; JEx parte Hann, 12 Yes. 346.

On eepoet. The case appears in the opinion, Plaintiffs contend; first, the reservation is of a new right not before in being, and having no words of inheritance, creates a reservation and not an exception, and^so limited to grantor’s life ; second, it was an easement in gross and limited, ex necessitate, by its express terms ; third,, if an easement appurtenant, it was appurtenant to some other estate of the grantor, and not another which grantor did not own ; fourth, it is…

<p>Levy. Estate decreed insolvent. B. S., c. 66, § § 3,18, 19 ; c. 76, § 49; ■Stat. 1869, c. 37.</p> <p>A decedent’s estate is “decreed insolvent” within the meaning of.R. S., c. 76, § 49, when commissioners of insolvency are appointed upon a representation of insolvency.</p> <p>After such appointment of commissioners no levy can be made upon the estate.</p>

On report. This was an action of trespass in which the plaintiff claimed damages of the defendant, a deputy sheriff, for breaking and entering one of its freight cars on November 7, 1891, at Biddeford, by destroying the lock and seal and a portion of the door; and having entered with a search' warrant against certain intoxicating liquors, alleged to be in the car, bored a hole in a barrel of alchohol found therein, seized nothing, and returned upon the warrant that he found…

On exceptions. These were search and seizure cases argued together in the law court, presenting the same question for decision, and relating to the validity of the warrants issued in the preliminary proceedings, by the police court for the city of Rockland, and, where the parties having been convicted, appealed to this court.

On appeal. Heaping in equity on a bill praying for cancellation of a deed, and reported to this court with answers and testimony ; a decree in favor of the plaintiff having been rendered by the single justice who heard the cause, with the aid of a jury, in the court below.

<p> Promissory Notes. Indorsement. Evidence. Pelease. </p> <p>As between original parties to a note, and those occupying their position, the nature of the contract, as well as the consideration upon which it is founded, is open to inquiry.</p> <p>Thus, the relative time at which the indorsements were made, and the agreement or understanding as to the nature of such indorsements, are proper subjects of inquiry between such parties in determining their relative liability to each other.</p> <p>But as against an innocent indorsee for value, in the regular course of business, a different rule applies, and prohibits a defendant from asserting any extrinsic matter to vary the apparent liability exhibited by the note itself. And when one, not a party to a note, either as payee or indorsee, has put his name upon it at its inception, he thereby becomes an original promisor; and if there is no date as to .such indorsement, the presumption is that it was made at the time when the note had its inception.</p> <p>Nor does the use of the words “waiving demand and notice” in the least weaken the effect of this presumption.</p> <p>A release may be given to one of several debtors, and if the holders’ rights are reserved against the others, the debt can still be collected of them.</p> <p>Nothing but a technical release under seal can operate as a discharge of two joint and several debtors, where a part only of the debt is paid by one.</p>

On report. This was an action against three defendants, Fuller, Marston and McClench, residents of Hallowed, as indorsers of a promissory note payable at Brooklyn, New York, and discounted by the plaintiff bank at Hallowell, in this State. The note was not presented for payment at the place of payment, Mechanics’ Bank, Brooklyn, or notice of its non-payment given to the defendants as indorsers.

On exceptions. This was a real action in which the plaintiff relied upon two different sources of title; first, under a mortgage from John Payson to one Counce, which came to the plaintiff by various mesne assignments; and, second, under a quitclaim deed from said Payson, the description of the land conveyed being as follows : All real estate situated in Hope, Warren and Union, meaning to convey all my right, title and interest in the real estate occupied by me.” The…

On exceptions. This was an action of replevin of ten tons of hay claimed to have been bought by the plaintiff at a sale on execution against the defendant Ellis. Plea, general issue and brief statement that the hay was the property of the other defendant, Pierce, and not the property of the plaintiff. At the conclusion of the plaintiff’s testimony, the court ordered a nonsuit, and he took exceptions. The case is stated in the opinion.

<p>On motion and exceptions.</p> <p>This was an action on the case to recover damages for loss of the plaintiff’s lumber by fire communicated by the defendant’s locomotive.</p> <p>The plaintiff’s declaration contained four counts ; two, framed on the statute, R. S., c. 51, § 64, and two charging negligence at common law. The acts of negligence alleged were defective ' machinery, the want of sufficient spark arresters, wrongfully throwing sparks and cinders, and the want of suitable section men to watch and tend fires along the railroad. One of the counts upon the statute is as follows :—</p> <p>" In a plea of the case, for that said plaintiff, at Milford, in said county of Penobscot, on the sixteenth day of April, A. D., 1890, owned and was possessed of certain property, to wit., certain boards, timber and board sticks, as follows : 2,080,804 feet of pine box boards of the value of seventeen thousand dollars, and 51,851 feet of timber of the value of three hundred and sixty dollars, and 318,000 board sticks of the value of four hundred and seventy dollars, all of which were of the value of seventeen thousand eight hundred and thirty dollars (§17,830) which said boards, timber and sticks were lawfully and properly piled and placed then and there on land of said plaintiff and adjoining the railroad of the said Maine Central Railroad Company, and was then and there and for a long'time before had been deposited there, and was then and for a long time before had been insured in the sum of twelve thousand dollars against loss by fire, and was such property as said Maine Central Railroad Company had an insurable interest in and could have procured insurance thereon, and then and there said company, so chartered by the laws of the State, did own and operate a railroad adjoining said property of said plaintiff and did then and there run and use by its servants and agents a locomotive engine and cars attached thereto, and on said day at said Milford while said locomotive engine was being run and used and operated on said railroad by said corporation, said property of plaintiff was injured and destroyed by fire communicated by said locomotive engine so being run and used by said corporation; and said plaintiff avers that his said property above named and so situated as aboye was totally destroyed at said time and place by said fire, that the sole cause of said fire and such injury and destruction of his property was the fire communicated by the locomotive engine, so being used and run by said corporation.”</p> <p>By agreement of the parties, the question of damages was reserved at the trial to be subsequently detei’mined ; and only the question of liability was submitted to the jury, who returned a verdict for the plaintiff.</p> <p>The defendant took exceptions and filed a general motion for a new trial. The case is stated in the opinion.</p> <p>Statute not limited in its application to real estate only. Permanent and insurable property are within the statute. Statute remedial. Bassetty. Railroad, 145 Mass. 129, and cases cited. Negligence. Jackson v. E. E. Co. 31 Iowa, 176, S. C. 2 Am Ey. E. 473 ; Kellogg y. Ry. Go. 26 Wis. 223, S. C. 2 Am. Ey. E. 483 ; Grand Trunk R. Go. v. Richardson, 91 U. S. 470 ; Rolke y. Ry. Go. 26 Wis. 537, S. C. 3 Am. Ey. E. 548; Webb y. R. R. Go. 49 N. Y. 420, S. C. 4 Am. Ey. E. 547 ; Spaulding y. Ry. Go. 30 Wis. 110, S. C. 7 Am. Ey. E. 507 ; Goale v. R. R. Go. 60 Mo. 227, S. C. 9 Am. Ey. E. 210; Mo. Pac. R. R. y. Platzer (Tex.), S. W. Eep. 577 ; Pent y. Ry. Go. 59 111. 349, S. C. 11 Am. Ey. E. 167 ; B. & O. R. R. Go. v. Shipley, 39 Md. 251, S. C. 11 Am. Ey. E. 269 ; Salmon y. R. R. Go. 38 N.' J. 5, S. C. 13 Am. Ey. E. 14; (39 N. J. 299, S. C. 14 Am. Ey. E. 226) ; Troxler v. R. R. Go. 74N. C. 377 ; 13 Am. Ey. E. 389 ; Bean v. Ry. Go. 39 Minn. 413, 12 Am. St. Eep. 659 -,L. & N. R. R. Go. v. Reese, 7 Am. St. Eep. 66-69 ; Whar. Ev. § 360 ; Stevens y. R. R. Go. 66 Maine, 76. Case to be submitted to jury. Sheldon y. R. R. Go. 14 N. Y. 218; Field y. R. R. Go. 32 N. Y. 339 ; O'Neill y. R. R. Go. 115 Nl Y. 581; Webb y. R. R. Go. 49 N. Y. 420.</p> <p>Exceptions : Crocker y. McGregor, 76 Maine, 284; Smith v. R. R. Go. 10 E. I. 22 ; Aich. R. R. Go. y. Stanford 12 Nans. 354; S. C. 8 Am. Ey. Eep. 236; Annap. & F. R. R. Go. y. Gantt, 39 Md. 115, S. C. 11 Am. Ey. E. 210; Henry y.R.R. Go. 50 Cal. 176, S. C. 12 Am. Ey. E. 168; Wiley y: R. R. Go. 44 N. J. L. 250; Piggott y. Ry. 3 C. B. (M. G. &, S.) 229 ; Aldridge y. Ry. 3 M. & G. 514; Whar. Ev. § 41.</p> <p>Lovmey v. JST. B. Ry. Go. 78 Maine, 479 and cases ; E. S., c. 51, § 64. Eule of stare decisis: 1 Kent Com. 12 Ed. 476; Broom’s Leg. Max. pp. 148-153 ; Smith v. Bibber, 82 Maine, 34, 39 ; Bank y. Willis, 8 Met. 504.</p> <p>Negligence: Meyer v. R. R. Go. 41 La. An. 639, S. C. 17 Am. St. Eep. 408 ; Pierce, E. E. 439, 440, 433 ; Hoffy. R. R. Go. 45 N. J. L 201, S. C. 13 Am. & Eng. E. E. Cas. 476; Texas, c6c., R. R. Go. v. Levi, 59 Tex. 674, S. C. 13 Am. and Eng. R. R. Cas. 464; 2 Rorer R. R. 800-1; Deering, Neg. § § 264, 273 ; B. & O. B. B. Go. v. Shipley, 39 Iud. 251.</p> <p>Exceptions: Boss v. B. B. Go. 6 Allen, 87, 91; G. Trunk By. Go. v. Richardson, 91 U. S. 454, 470 ; Parker v. Port. Pub. Go. 69 Maine, 173-175; Henderson v. B. R. Go. A. L. Jour. Dec. 12, 1891, Yol. 44, p. 479.</p>

<p>On REPORT.</p> <p>This was a bill in equity asking the court to enjoin the city of Bangor from paying and using the Hersey Fund, so-called, given to the city by the will of S. F. Hersey, for building a city hall. The statute in force when the city received said fund, reads as follows: (R. S., c. 3.)</p> <p>"Sec. 51. Any city or town may receive money by donation or legacy in trust for benevolent, religious, or educational purposes, for the erection and maintenance of monuments, and for the benefit of public cemeteries and lots therein ; provided, that the city or town lawfully consents.</p> <p>"Sec. 52. Interest shall be allowed if the fund is used by the city or town ; otherwise it shall be placed at interest or income, the city or town being responsible for its security.</p> <p>"Sec. 53. The city or town, by its officers or agents, shall apply the fund or its income in accordance with the written directions of the donor or testator, made known at the time when the fund was accepted.</p> <p>"Sec. 54. If the city or town fails to apply the fund or its income at the times and for the purposes prescribed in said directions, it reverts to the donor, if living; otherwise, to his heirs.”</p> <p>The will provides as follows :</p> <p>"Finally, in the year 1900 to apportion and divide the entire residue and remainder of the trust estate then remaining in their hands in ten ( 10 )equal parts or shares, as near as may be, and to manage and dispose of same, discharged of said trust as follows : To convey and pay over to the City of Bangor, Maine, where I have been engaged in business for the last forty ( 40 ) years, three-tenths ( 3-10 ) parts thereof, the principal to be held in trust and the income thereof applied and appropriated by said city to the promotion of education, the health and good morals of the citizens, with the suggestion of a public park, etc.</p> <p>In the year 1882, it was considered advisable by the city of Bangor to receive and accept one hundred thousand dollars in lieu of the bequest of said three-tenths part, which it would be entitled to have in the year 1900, by the terms of the will; and thereupon the city council authorized the treasurer of the city to release its claim to said three-tenths upon receiving one hundred thousand dollars; and the city of Bangor on August 5, 1882, in its release of that date agreed "to assume the trust and administration thereof of said one hundred thousand dollars, according to the wishes of said testator, Samuel F. Hersey, as by him expressed in his said will and codicil relative to the provisions by him therein made for said city ;” and the treasurer of the city in accordance with said vote, and in consideration of one hundred thousand dollars, released said three-tenths of the said estate.</p> <p>Upon receiving said money, the city council passed a vote submitting the questions of the investment and disposition of said bequest to the mayor and president of the common council for the time being, the living ex-mayoi's of the city and seven other citizens. This committee gave all parties a hearing and made a report to the city council in which they say : . . .</p> <p>"The first question considered by the committee was : What rights has the city as receiver of the amount paid by the trustees of Samuel F. Hersey’s will, in the adjustment of this bequest?</p> <p>"So far as the principal, one hundred thousand dollars, is concerned, we are decided that the expenditure of any portion thereof is in palpable violation of the spirit of the bequest and of the letter of the agreement between the city and the said trustees.” . . .</p> <p>"The third question considered was : How shall this trust be executed by the city, so far as relates to the custody of the principal received from the trustees of the will by said city, in adjustment of the bequest?</p> <p>" We recommend that the principal shall be forever held by the city of Bangor, and kept distinct from any other moneys or funds, held by said city for municipal, or other purposes, meaning that it shall never be expended or absorbed so as to constitute any addition to the indebtedness of the city, but shall be separately invested in approved securities ; not intending, however, to forbid its investment in bonds of the city of Bangor.”</p> <p>"The committee recommend that the income of the fund be devoted to the maintenance of a free public library.”</p> <p>This report was accepted, and an ordinance adopted in March, 1883, by the city carrying into effect its recommendation, and the Hersey Fund, so-called, was committed to a board of trustees, who invested said fund in bank stocks, railroad stocks, and city of Bangor bonds, and have since 1883 up to this year devoted the income of the fund to the public library.</p> <p>The Bangor Mechanic Association had a library of books of the value of $12,000, and a fund of the value of $20,000, and the trustees of said Hersey Fund as authorized by the city council entered into an agreement with that association by which it transferred its library and fund to the city, for the purpose of a public library, and the city agreed to devote the income of the Hersey Fund to said library.</p> <p>In 1893, a project was conceived of using the Hersey Fund for the purpose of building a city hall, and a decree was obtained transferring the Hersey Fund from the custody of the trustees appointed under the ordinance of March, 1883, to the treasury of the city. (See Bangor y. Beal, ante p. 129.) The city council afterwards passed votes devoting said Hersey Fund to' the building a city hall.</p> <p>The complainants, inhabitants and tax payers of Bangor, by this bill asked the court to restrain the city from using the fund for this purpose, and alleged that such use would be illegal.</p> <p>First. Because it would be in violation of the provisions of the terms of said will, and the trusts thereby created, and assumed by the city, in accepting the bequest.</p> <p>Second. Because it .would be in violation of the contract between the city and the Bangor Mechanic Association.</p> <p>Third. Because it would be in violation of the constitutional, provision forbidding a city to create a debt or liability exceeding five per centum of its valuation.</p> <p>The city denied in its answer that the release, or instrument,, executed by it August 5, 1882, imposed upon Bangor any conditions or limitations,-in the use or administration of said fund,, other than those imposed by the will. It also denied that the* proposed use of the principal of said fund was in contravention of said Hersey’s will, ox of any stipulation or agreement entered, into by Bangor with others.</p> <p>It was admitted that the aggregate debts' and liabilities of the* city exceed five per cent of its last regular valuation.</p> <p>It was also admitted that upwards of $78,000 of said fund was, invested in bonds of the city ; that $21,000 of said bonds mature' the present year; and still others thus invested will mature in fch©> near future.</p> <p>The case was heard in the court below, May 18, 1893, at Bangor, upon bill and answer; and by agreement of the parties was reported for the decision of this court, and transferred for argument to the Middle District, May term, at Augusta.</p> <p>Jurisdiction: 2 Dill Mun. Corp. § 909.</p> <p>City is charged by the statute (R. S., c. 3, § § 51-4) and by common law with the trusts named in the will, and must hold the principal in trust and devote the income to the promotion of education, the health and good morals of the citizens. Testator intended that the principal should be held in trust, should be prudently invested, and the income devoted to the above purposes. Contemplated use not only a wrongful misapplication and misuse, but also an absolute destruction of the trust fund. Hall built on its own land becomes the absolute property of the city. Rule of investment, same as an individual under a will. Hcirv. Coll. v. Amory, 9 Pick. 761; Dickinson, Applt. 152 Mass. 186 ; Emery v. Batchelder, 78 Maine, 21; Moulton v. Mattocks, 84 Maine, 545. Will and statute require the income more or less, and not the specific sum of $4,500 anually to be appropriated and applied.</p> <p>Agreement with Mech. Asso : 1 Dill. Mun. Corp. § 314 ;. 2 High, Injunc. § 1243.</p> <p>Constitutional law : Culbertson v. Fulton, 127 111. 30 ; 2 Dill. Mun. Corp. §§ 916-919; Crampton v. Zabriskie, 101 U. S. 601.</p>

<p>On motion.</p> <p>This was a motion to set aside a verdict against the defendant in an action to recover damages to the plaintiff’s team at a railroad crossing.</p> <p>The plaintiff in his declaration alleged that "the defendant then and there not in the use of proper care, or giving signals of warning, so rashly and negligently and carelessly and with such undue and immoderate speed ran one of its engines with the entire train of cars attached thereto across said public street and highway, that,” &c. ...</p> <p>The case appears in the opinion.</p>

<p>On motion and exceptions.</p> <p>This was an action to recover damages sustained by an alleged defective highway. The jury returned a verdict for the plaintiff, and the defendant moved for a new trial and also took exceptions. The view of the case taken by the court renders the exceptions immaterial.</p> <p>The case appears in the opinion.</p>

<p> Promissory Notes. Indorser. Notice. </p> <p>In the written notice of the dishonor of a promissory note, the omission to state the names of all the indorsers, and an error in stating the amount of the note, will not vitiate the notice, unless the indorser is misled thereby.</p>

Agreed statement. This was an action for the diversion of water. The parties stated their case Avhich appears in the opinion of the court.

<p> Corporations. Sale of Franchise. Contracts Ultra Vires. </p> <p>Public or quasi public corporations, which possess and exercise the right of eminent domain, or its equivalent, owe duties to the public as well as to their stockholders; and they cannot sell or lease their corporate powers and privileges, and thereby disable themselves from performing their public duties without legislative authority.</p> <p>A more serious objection to the traffic in corporate franchises is the ease with which such a power could be used to create monopolies.</p> <p>A gas company, which possesses and exercises the right to lay its pipes in the public streets, can not sell, lease, or assign its corporate rights and privileges to another gas company without the consent of the legislature.</p> <p>A contract made by a corporation which is unlawful and void, because beyond the scope of its corporate powers, does not by being carried into execution •become lawful and valid. The proper remedy of the aggrieved party is to disaffirm the contract and sue to recover as on a quantum meruit the value of what the defendant has actually received the benefit of.</p>

On exceptions. It appeared from the bill of exceptions that this case originated in the Insolvent Court of Kennebec county, on petition of creditors of John U. Hubbard in involuntary insolvency; and an appeal was taken by the appellant Goulding, who was an attaching creditor, from the decision of said court adjudging said Hubbard an insolvent debtor.