Volume 86 — Maine Reports

<p>On REPORT.</p> <p>Trespass for entering land in Eustis, Franklin County, formerly belonging to Miles Standish, deceased, and cutting and carrying away pine trees.</p> <p>The plaintiff claimed title to the premises by virtue of a deed from the administrator of said Standish’s estate, dated February 29, 1888, conveying "the following described real estate, to wit, all the right, title and interest the said Miles Standish had at the time of his decease in a certain piece or parcel of land lying in Eustis. Franklin County, and known as the Buxton tract.” . .</p> <p>The defendant justified as agent of Seth B. Hersey, who claimed title under a sheriff’s deed, dated February 12, 1884, made to Woodman, True and Company upon an execution sale, according to B. S., c. 76, § 33, and conveying "one lot of land called the Buxton lot or tract containing two thousand acres, moi’e or less, situate in the southeast quarter of the Buxton Tract, so-called.” It was admitted that said Hersey had acquired and held, at the time of the alleged trespass, the title of Woodman, True & Co., and that the defendant Taylor made the entry alleged upon the premises, and that in making such entry he acted by permission and under the authority of said Hersey under his claim of title as aforesaid.</p> <p>It was also agreed and admitted that the Buxton Tract, so-called, was, at the date of the sheriff’s deed, a well known and well defined tract of land, containing about ten thousand acres in the south half of the town of Eustis. Both deeds were duly recorded; and it was admitted that the plaintiff had actual knowledge of the sheriff’s deed to Woodman, True & Co., at the time he took and accepted the deed from the administrator of said Standish.</p> <p>The land upon which the trespass is alleged to have been committed is in the northeast quarter of the Buxton tract, and the plaintiff' claimed that it was not included or embraced in the description contained in the sheriff’s deed. The plaintiff also claimed that the sheriff’s sale was void for irregularities; but the view taken by the court renders a report of them unnecessary.</p> <p>Title of both parties comes from same source, Miles Standish. The defendant’s entry being’ admitted, the question is who has the best title to the real estate described in plaintiff’s writ. The-words of the general description in the sheriff’s deed are controlled by the particular description. Stewart v. Davis, 63 Maine, 539 and cases there cited; Smith v. Strong, 14 Pick. 128, and cases. Sheriff’s deed invalid for want of notices posted in Coplin and Flagstaff plantations adjoining Eustis. "Town”' includes "Plantation.” E. S., c. 1, § 6, cl. 17; Kimball v. Rockland, 71 Maine, 142; Small v. Lufkin, 56 Maine, 31;, Blood v. Bangor, 66 Maine, 155 ; Townsend v. Meader, 58-Maine, 288. If "Town” does not include "Plantation,” notices, of sale should have been posted in the shire-town. Sale void in either event. Taylor, being Stand ish’s administrator is estopped, by his deed to Butler to deny plaintiff’s title.</p> <p>Possession indispensable to support trespass q. c. Jones v.. '.Leeman, 69 Maine, 489; Harvey v. Byrnes, 107 Mass. 522 ;. Shepard v. Pratt, 15 Pick. 34. Plaintiff had neither actual nor constructive possession. His deed does not support constructive possession. 2 Green!. Ev. § 619 ; Melcher v. Merry-man, 41 Maine, 601. No evidence of actual possession. Burden to prove possession is on the plaintiff. Tabor v. Judd, 62 N. H. 288; Boffin v. Freeman, 82 Maine, 578.</p> <p>Particular description in sheriff’s deed not a limitation upon the general terms of the grant. Particular description may be discarded for error. 2 Dev. on Deeds, § 1041; Fly v. Bard, 2 N. H. 175 ; Wing v. Burgis, 13 Maine, 114 ; Vose v. Handy, 2 Maine, 322. Statement of quantity and description of location being erroneous will not prevail against general description. Field v. Huston, 21 Maine, 69 ; Abbott v. Pike, 33 Maine, 207, and cases; Pierce v. Faunce, 37 Maine, 68; Abbott v. Abbott, 58 Maine, 360; Qilley v. Qhilds, 73 Maine, 133; Jones v. Buck, 54 Maine, 304.</p> <p>Notices of sale not required to be posted in adjoining plantations. Laws 1821, c. 60, § 17. Counsel also cited: Virgie v. Stetson, 77 Maine, 523 ; Buffum v. Deane, 8 Cush. 35 ; Big. Estop, p. 327.</p> <p>Deed to plaintiff, without the statement that both parties claim through Standish, carries with it the legal presumption that seizin follows title, and that they correspond with each other, and this deed duly acknowledged and registered is by statute equivalent to livery of seizin. E. S., c. 71, § 23 ; Ward v. Fuller, 15 Pick. 189; Blethen v. Dwinel, 34 Maine, 133; quitclaim from one having title is sufficient. Where both parties claim under the same person it is prima facie sufficient to prove the derivation of title from him without proving his title. 2 Gfreenl. Ev. § 307. Sheriff’s deed not a voluntary conveyance of Standish, to be construed most strongly in favor of grantor; therefore nearly all of defendant’s authorities do not apply. His deed does not cover the land on which the trespass was committed.</p>

<p>On exceptions.</p> <p>The jury having returned a verdict for the defendant, in an action of money had and received, the plaintiff took exceptions which appear in the opinion.</p> <p>Before the trial, the plaintiff filed by direction of the court the following specifications of the alleged false representations upon which the plaintiff claimed a recovery :</p> <p>"1st. That he, the said defendant, was then the owner of one share in the Wilson Addition, New England City, Georgia; that he had bought one shai*e in the Wilson Addition to New England City, Georgia ; that he had secured an additional share for the plaintiff and four others, which is the share towards which the money sued for was advanced ; that he had bought and paid for one share as above, as his own, in addition to the share secured for the plaintiff and others, which last is the share towards which the plaintiff advanced the money sued for.</p> <p>" 2nd. That the share towards the purchase of which plaintiff advanced the money which is sued for was fully paid up; that there was nothing more to be paid on it; that there could be no assessments on it; that there would be no more payments on it.</p> <p>" Which representations plaintiff says were both false and fraudulent.”</p> <p>Counsel cited: JVowlan v. Gain, 3 Allen, 261; Bostivick v. Leivis, 1 Day, 250; S. C. 2 Am. Dec. 78, note; Spaulding v. Hodges, 2 Pa. St. 240; Smith v. Richards, 13 Pet. 26 ; Cool. Torts, pp. 474, 483, note, 488, note; Harris v. McMurray, 23 Ind. 9 ; Gressler v. Rees, 46 N. W. Bep. 363 ; McAleer v. Horsey, 35 Md. 439; Bean y. Herrick, 12 Maine, 269; Saunders v. Hatterman, 2 Ired. 32 S. C. 37 Am. Dec. 404; 2 Kent Com. 487; Shackleford v. Handley, 1 A. K. Marsh. (Ky.), 496, S. C. 10 Am. Dec. 753 ; Griswold v. Sabin, 51 N. H. 167 ; Mead v. Bunn, 32 N. Y. 281; Fitzsimmons v. Joslin, 21 Yt. 129 ; S. C. 52 Am. Dec. 46 ; Reynolds v. Palmer, 21 Fed. Bep. 433 ; Williams v. McFadden, 23 Fla. 143 ; S. C. 11 Am. St. Bep. 345 ; Goles v. Kennedy (Iowa), 46 N. W. Bep. 1088; Page v. Parker, 43 N. H. 363; Brackett v. Griswold, 112 N T. 454; Frenzel v. Miller, 37 Ind. 1; S. C. 10 Am. Rep. (55.</p> <p>Neither of the representations is actionable, even though false and intended to deceive. Parties stood in relation of buyer and seller. No relation of agency or any fiduciary capacity. Plaintiff knew he was not getting a title to land, because he received no deed. Plaintiff alleges no false or fraudulent representation concerning the "quality or condition” of the "share,” the subject of the sale. Jury found that the defendant owned the share.</p> <p>Counsel cited : Watson v. Poulson, 7 E. L. & Eq. Rep. 588 ; Holbrook v. Connor, (30 Maine, 578, 585. Cases of misrepresentation held actionable as pertaining to quality or condition : Long v. Woodman, 58 Maine, 49; Atwood v. Chapman, 68 Maine, 38 ; Martin v. Jordan, (50 Maine, 531; Bhoda v. Annis, 75 Maine, 17 ; Savage v. Stevens, 12(3 Mass. 207 ; Ladd v. Putnam, 79 Maine, 5(38; Hazard v. Irwin, 18 Pick. 95; Nowlan v. Cain, 3 Allen, 261.</p> <p>The seller, however, may express his opinion of the value of the thing he oilers for sale, and praise it ad libitum without incurring liability. It is not actionable for the seller to falsely represent " that the lands had large deposits of oil in them, and were of great value for the purposes of digging, boring for, and manufacturing oil,” when the lands had never been tested, Holbrook v. Connor, (50 Maine, 568 ; to represent to purchaser of a business that he would have the same right in a store — a tenancy at will — that a prior tenant had enjoyed, the alleged damage being an ejection after thirty days notice, Panforth v. Cushing, 77 Maine, 182 ; to represent that a buyer could make large profits out of the article bought, Bishop v. Small, 63 Maine, 12 ; to induce a conveyance of real estate by representations of a promissory nature, Long v. Woodman, 58 Maine, 49 ; to misrepresent what the law will or will not permit to be done, Abbott v. Treat, (57 Maine, 121.</p> <p>The general rule of law as above stated admits, however, of an exception. False representations, concerning the value of the thing sold, former offers for it, the price paid for it, etc., are not actionable. While this is not universal rule of law, it prevails in this State and Massachusetts by an unvarying line of decisions. Medbury v. Watson, 6 Met. 246 ; Brown v. Castles, 11 Cush. 348; Belcher v. Costello, 122 Mass. 189; TIemmer v. Cooper, 8 Allen, 334; Manning v. Albee, 11 Allen, 520; Cordon v. Par melee, 2 Allen, 212; Richardson v. Noble, 77 Maine, 390; State v. Paul, 69 Maine, 215 ; Bishop v. Small, 63 Maine, 12; Holbrook v. Connor, 60 Maine, 578 ; Bourn v. Davis, 76 Maine, 223, and cases cited; Bantu v. Palmer, 47 111. 99; Tuck v. Downing, 76 111. 71. Cases of Van Epps v. Harrison, 5 Hill (N. Y.), 63 ; SanfordY. Handy, 23 Wend. 268; and Page v. Parker, 43 N. H. 369, overruled in this State in Richardson v. Noble, 77 Maine, 390.</p>

<p> Sales. Evidence. Practice. </p> <p>In an action to recover the price of land sold and conveyed by tlie plaintiff to the defendant the conveyance was admitted, but the defendant denied that it was a sale, claiming that it was conveyed to him as trustee. The plaintiff introduced in evidence a writing signed and sworn to by the defendant admitting that he owed the plaintiff and others for land which defendant had conveyed to a land improvement company, therein stating the prices that he agreed to pay and the sums already paid. The defendant sought to weaken the force of such admission by testifying that the paper was intended to show for what amount each lot was put into the land scheme, and what each owner would be entitled to receive in trustee certificates, and that his attention was not called to the phraseology. To corroborate his testimony the defendant offered the testimony of two witnesses to the effect that their conveyances, referred to in the writing, were not sales but outright conveyances of land to be held in trust by the'defendant; but the testimony was, rejected by the court. Held, that the evidence was rightly excluded.</p> <p>The defendant having introduced and read a letter of one of plaintiff’s witnesses, during his cross-examination, without objection, Held, that the • letter was then legally in the case.</p> <p>The defendant cross-examined the witness with respect to the contents of the letter, and again offered it in evidence as tending to contradict the witness, and it was excluded. The proceeding seems to have been irregular; and as the defendant’s counsel was the cause of the irregularity, Held, that the defendant cannot complain of it.</p> <p>On exceptions.</p> <p>The court excluded testimony offered by the defendant upon the trial of the case and thereupon he took the exceptions which are stated in the opinion.</p>

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

<p> Waters. Partition. Islands. Equity. </p> <p>Where there are two natural channels in a river caused by an island, the owners of the island are riparian owners as well as the owners of the main land opposite the island.</p> <p>The riparian owners upon each of such channels are entitled to have flow through that channel as much of the water of the river as will naturally flow there and no more.</p> <p>The riparian owners upon either of such channels must acquiesce in the flow through the other channel of as much of the water of the river as will naturally flow there.</p> <p>In such case the waters of the river are divided by nature between the two channels, and the two sets of riparian owners; and however unequal that division may be, the court has no power to make it equal.</p> <p>In such case a bill in equity by the riparian owners upon one channel against the riparian owners upon the other channel asking for a division between them of the whole flow of the water of the river cannot be sustained.</p>

<p>In equity.</p> <p>This was an appeal from a final decree in equity rendered in the court below, in favor of the plaintiff, where there was a hearing upon the bill, answer and testimony. The case upon the appeal was certified to the Chief Justice and argued in writing.</p> <p>Both parties claimed to have been elected alderman in ward seven, in the city of Bangor. The case is stated in the opinion. The plaintiff’s bill, omitting the jurat, is as follows :</p> <p>"State of Maine. Penobscot, ss.</p> <p>"To the Supreme Judicial Court. As in Equity.</p> <p>"William F. Curran, of Bangor, in the County of Penobscot, petitions and complains against William Z. Clayton, of Bangor, in said County, and says :</p> <p>"That he, said Curran, is a natural born citizen of the United States, of the age of twenty-nine years ; that he is now and has been for several years past continuously a legal resident in and duly qualified voter of, Ward Seven, in said City of Bangor; that he is legally qualified to be elected to and hold the office of Alderman from said Ward Seven, in the City Council of Bangor.</p> <p>" That he was duly elected and qualified as Alderman of said Ward Seven, in March, 1892, and held said office for the municipal year then next ensuing; that at the regular annual city election in said Bangor, on the second Monday of March, 1893, duly and legally hold under the provisions of law and especially of Chapter 102 of the Public Laws of 1891, he was a candidate for re-election as Alderman for said Ward Seven, in the City Council of said Bangor, for the municipal year then next ensuing; that as such candidate his name was duly and properly, placed upon the official ballot to be used at said city election in said Ward Seven; that of the qualified electors of said Ward Seven, at said election of March, 1893, he received a clear majority over all the other candidates voted for as Alderman at said election in said Ward Seven, in that of the different candidates for Alderman, whose names appeared upon the official ballots cast at said election in Ward Seven, the qualified electors of said Ward, by proper cross'upon the official ballot indicated their choice as follows, viz :</p> <p>"The respondent, William Z. Clayton, had 295 votes.</p> <p>"Said William F. Curran, had 310 votes.</p> <p>"John S. Ellis, had 12 votes.</p> <p>"The whole number of ballots cast for Alderman was 617 votes.</p> <p>"Necessary for a choice, 309 votes.</p> <p>"Andyour petitioner was duly declared elected as said Aider-man.</p> <p>"That at said election in Ward Seven, all the votes given in for the several offices, including the said office of Alderman, were properly sorted, counted, declared and registered in open Ward meeting by the Warden of said Ward, in the presence of the Clerk of said Ward, who caused the names of the persons voted for and the number of votes given for each to be written in words at length, and duly and properly recorded.</p> <p>"And the Ward Clerk of said Ward Seven did within twenty-four hours after said election, to wit, in the evening of the said second Monday in March, 1893, deliver to said Curran, a certificate of his election as Alderman for said Ward Seven, in said City Council as aforesaid.</p> <p>"And said Clerk of Ward. Seven did forthwith deliver to the City Clerk of said Bangor, a certified copy of the records of said election; that on the third Monday of March, 1893, the Aldermen and City Council elect, duly met in convention, when and where, no one protesting, the oath of office was duly administered to your petitioner to perform the duties of Alderman from Ward Seven in the City Council of Bangor, for the municipal year then next ensuing, whereupon your petitioner assumed the duties of said office, and continued to perform them until the unlawful assumption of the same by the respondent as hereinafter stated.</p> <p>"That at a meeting of the Board of Aldermen of said city, held on the 5th day of April, 1893, said board against the protest of your petitioner improperly and illegally went behind the said returns of said Clerk of Ward Seven, in so far as they related to the election of an Alderman, and recounted the ballots cast at said election in Ward Seven, and by counting as cast for said respondent six ballots so defectively, improperly and illegally marked as to make it impossible to determine the voters’ choice for Alderman, (five of said six ballots having been properly and legally rejected axxd marked as defective in the said counting at said ward meeting, and one of said six ballots having been counted for Mayor only and properly not counted for Alderman at said ward meeting,) the whole number of votes cast for Alderman in said election was claimed to be increased from 617 to 622, and therefore said 310 votes cast for your petitioner were claimed not to constitute a majority of said 622.</p> <p>"Your petitioner further says that said recount showed an error in the ward count of one too man}*- votes for said Clayton, so that the actual legal votes cast at said election lor said Clayton were 294 instead of 295, which 294 together with said six ballots illegally counted for said Clayton made a total of 300 votes claimed at said re-count as cast for said Clayton; and thereupon said Board of Aldermen voted that there was no election of Alderman at said election of 2d Monday of March, 1893, in Ward Seven, and ordei’ed a xxew election against the protest of your petitioner, who says that said attempted i'e-canvas of the votes cast at said election in Ward Seven, on 2d Monday of Max’ch, 1893, was improper aixd without authority of law.</p> <p>"The acts of the wax'd officer in the absence of fraud or willful miscoixduct, in declarixxg your petitioner elected were conclusive in the prenxises and not subject to review by the Board of Aldermen, and even if they were a subject of review by the Board of Aldermen, they acted illegally in counting said six defective ballots, as indicating the voter’s choice of said respondent or any one else for Aldermen.</p> <p>"And your petitioner through the City Committee, and directly himself, notified the City Clerk that he should take no part in said second election, and not to print his name upon the official ballots, and his name was not printed thei’eon, and he in no manner participated in said election, which was held on the eighth day of May, 1893, whereat said respondent claims to have been elected to the office of Alderman of Ward Seven, in said City Council for the municipal year 1893 and 1894.</p> <p>"That said respondent holds a certificate of election to said office issued to him in pursuance of said election of May eighth, 1893, by Ward Clerk of Ward Seven, and said respondent was sworn ih to said office on the 9th of May, 1893, and now claims to hold said office in pursuance of said election of May 8th, 1893, to the exclusion of your petitioner.</p> <p>"Your petitioner, William F. Curran, a person eligible to said office and claiming to be elected to said office of Alderman from Ward Seven, in the City Council of Bangor for the municipal year 1893 and 1894, as hereinbefore more fully set forth, proceeds against said respondent, William Z. Clayton, who claims to hold said office as hereinbefore more fully set forth. And your petitioner as a part of this bill of, complaint begs leave to refer to and produce in court, in so far as the same may be pertinent to the issue, the records, or certified copies thereof, of said Ward Seven, and of said City, and to produce for the inspection of the court the aforesaid ballots cast, and claimed to have been cast at said election of 2d Monday in March, 1893.</p> <p>"And your petitioner prays that time and place may be set for hearing upon this petition, and said adverse party notified thereof as provided by law, and that said adverse party may be required to file at said time and place of hearing, an answer traversing the facts hereinbefore set forth, which he does not mean to admit, and that all the facts hereinbefore stated not denied by the respondent shall be taken as admitted by him.</p> <p>"And your petitioner further prays that if judgment is awarded in his favor an order of court may be issued against said respondent commanding him to yield up said office, and that your petitioner may be allowed to enter upon the duties of said office, the forms of all which orders are particularly specified in sections 53 to 57 of Chapter 4 of the Bevised Statutes, and acts additional thereto, and amendatory thereof especially of Chapter 260, of Public Laws of 1893 ; and your petitioner prays that costs may follow judgment, in his favor.</p> <p>"Bangor, Maine, May 12, 1893. Wx. F. Curran.”</p> <p>The defendant’s answer discloses two grounds of defense; first, that the board of aldermen had exclusive jurisdiction of the subject matter under § 25 of the city charter; and, second, that the ballots alleged to be defective and irregular, were properly counted for the defendant.</p> <p>1 Dill. Mun. Corp. 2d Ed. c. 9, § 141. Language of city charter does not exclude common law courts from power to review acts of the aldermen. If court, previous to act of 1893, had such power, there can be no question that it has additional power now.</p> <p>A single straight line does not constitute a cross. Wigmore’s Aust. Ballot Law, page 178, citing Indiana statute of 1889. Five ballots defective under Stat. of 1891, § 10. See B. I. Stat. of 1889, § 6, and opinion of the Justices. If the rule of "intention,” as contended by defendant, governs, it applies to all the ballots, and we shall have no rule at all, instead of the plain and precise rules laid down by the legislature for printing and marking ballots. The rule of " intention,” cannot be a fixed one, and, if adopted by the court, must be left to the varying and partial judgments of different sets of presiding officers. Their judgment would in turn be reviewed by a single justice, to be reviewed again by all the judges; so that this court is to be made the final counting and canvassing board in every case, great or small, when a candidate may think the presiding officials at the polls doesn’t guess at the voter’s intention in the way the candidate himself might desire.</p> <p>City charter gives the board exclusive jurisdiction unless it is affirmatively shown that the decision was arrived at through prejudice, undue influence, corrupt motives, or illegal methods amounting to a legal wrong. It must appear that the acts of the board were illegal. Rounds v. Smart, 71 Maine, 380; Sanders v. Getchell, 76 Maine, 158 ; Pierce v. Getchell, Id. 216 ; Opinion of Justices, 70 Maine, 560. Analogous cases in which the court will not assume to review proceedings of tribunals or bodies acting within their limits of jurisdiction are towns and juries. Googins v. Gilmore, 47 Maine, 9 ; Williams v. Bunker, 49 Maine, 427 ; Peabody v. Hewett, 52 Maine, 33 ; Farnum v. Virgin, Id. 576; Drown v. Smith, Id. 141; Hovey v. Chase, Id. 304 ; Gleason v. Bremen, 50 Maine, 222 ; Folsom v. Skofield, 53 Maine, 171; Darby v. Hayford, 56 Maine, 246 ; Fessenden v. Sager, 53 Maine, 531.</p> <p>Legislature should not deny right of suffrage, either directly or by making it so difficult or inconvenient as to amount to a denial, Dewitt v'. Bartley, 146 Pa. St. 592. Section 24 of Stat. 1891, c. 102, is directory how to prepare and deposit ballots. Section 27 makes it the duty of the proper officers to give full force and effect to the vote, to count it for the candidate that the elector intended it, thus give effect to the statute in accord with the decisions of this court heretofore given relative to the right of suffrage secured to the citizen by the constitution. All the statutes relating to the same subject matter should be taken into consideration. Smith v. Chase, 71 Maine, 164; Collins v. Chase, Id. 434. Comparing the Stat. of 1891 with the Constitution and all laws heretofore enacted, it is the duty of the warden or municipal officers to count all votes in favor of the candidates that the canvassing board understand, by inspection of the ballot, the elector intended to vote for.</p> <p>Ballot with only one mark, a cross over defendant’s name shows, beyond doubt and argument, an intent to vote for defendant as alderman. Ballot which has two crosses, one over the defendant’s name and the other under it, the rest of the ticket being without marks, shows that the elector intended to vote for the defendant as alderman, and the candidate, (the mayor,) whose name is above the defendant’s, and for no other candidates.</p> <p>As to ballots marked at the left of the candidates’ names, there is no provision in the statute requiring the rejection of the ballot. The provision for placing the mark at the right of candidates’ names is directory and not arbitrary; intended as an instruction in preparing ballots that confusion may be avoided in adopting this method of election.</p> <p>In .Parvin v. Wimberg, 130 Ind. 561, the court held that the construction of an election law that had been accepted and acted upon by the officers, whose duty it was to administer the law, will not be ignored by the court unless it is palpably wrong.</p>

<p>Nuisance. Equity. Bights to he first settled at law. B. 8-, c. 77, § 6; c. 77, § 6, cl. XI; B. 8., 1841, c. 96, § 10; Stut. of 1874, c. 175. 8tat. 1898, c. 217.</p> <p>A MU in equity will not be maintained to restrain a nuisance created by a dam that raises water to so great a height as to flow out a highway, whereby the plaintiff has been put yearly to expense in its repair, when it appears that the statute remedy giving damages and process for abatement, has not been invoked, and there is no imminent danger of irreparable injury. Statute of 1893, c. 217, held not to apply to pending cases.</p>

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

<p> Equity. Specific Performance. Description. Trust. Notice. </p> <p>In a written contract to convey real estate, the words, “Store lot on corner of Presque Isle and Marsardis streets in Ashland,” are a sufficient description to enable the vendee to maintain a bill for specific performance.</p> <p>The vendor, one of the defendants, after the date of the memorandum of sale, conveyed the lot to the other defendant, who had notice of the previous sale of the land to the plaintiff. Held; that the other defendant having acquired the legal title with notice of the trust is chargeable with its tei’ms and may properly be compelled to comply with them.</p>

On report. Bill in equity, heard on bill, answers and proofs brought under R. S., c. 46, § § 44-48, to collect a judgment of the defendants, as stockholders of the Bar Harbor Land Company. The bill was originally brought by Lucy A. Barron and George-A. Barron, her husband, against the defendant, Burrill, ,-and three others.

On report. Bill in equity, heard on bill, answer and proofs, brought to recover the amount of one hundred shares, par value five dollars, of unpaid stock taken by the defendant in the Bar Harbor Land Company, against which the complainant has an unsatisfied judgment.

On report. This is a statutory action of debt for taxes, assessed on a building and lot situated in Foxcroft on the campgrounds of the Piscataquis Valley Campmeeting Association.

On report. This iras a statutory action of debt to recover a tax, for the year 1891, assessed on the defendant’s stable and campground, being its land and real estate in Foxcroft outside of and except its houses of religious worship, vestries, tabernacle, pews, seats and furniture within the same, or any parsonage and the land on which it stands, and that occupied by tents and cottages.

On report. The case appears in the opinion. This was au action of trespass against the defendant, a trial justice for the county of Lincoln, on the ground that the plaintiff, who was a spectator at a trial before the justice was, with other spectators, ordered from the court-room and finally removed by an officer under the direction of the court, but without the use of force.

Ox report. Bill in equity, heard on bill and answer, brought by Frederick Fox, surviving executor and trustee, to obtain the construction of the residuary clause in the will of Joseph Walker, of Portland, deceased.

On motion and exceptions. Replevin of a piano by the assignees of Louis Roberge, insolvent debtor. The jury gave a verdict for the defendant. The case appears in the opinion.

<p> Landlord and Tenant. , Sent. Implied Promise. Co-owners. </p> <p>Where the owners of three quarters of a store, holding in common and undivided with the owner of the other quarter, rented their three fourths to a tenant who necessarily occupied the entire store in order to avail himself of the occupancy of the three fourths, such tenant or occupant, being unable to agree upon any terms for the occupancy of the one fourth with the owner thereof, becomes liable, by an implied promise created by the relations of the parties, to pay to such owner a reasonable rent for his interest in the premises; anil no further or greater liability rests upon such tenant for his occupancy.</p> <p>The court finds that, on the facts presented, the plaintiif has already received such reasonable amount of rent for the period covered by the declaration in, Ms suit.</p>

<p>Probate. Appeal. B. S., o. 63, § 23; c. 72, § 25.</p> <p>By R. S., c. 63, § 23, any person “aggrieved” by a decree of the probate court, may appeal to this court.</p> <p>Persons “aggrieved” are those only who have rights enforceable at law, and whose pecuniary interest might be established, in whole or in part, by the decree.</p> <p>The appeal will be dismissed unless the right to appeal is affirmatively alleged and established by the case presented.</p> <p>Where a sister appealed from the decree of the probate court appointing a guardian to her sister as a person of unsound mind, and neither specified in her reasons for the appeal, nor alleged in her exceptions, that she is an heir apparant or an heir presumptive of the ward, held; that the exceptions should be overruled and the appeal dismissed. Non constat that a sister is an heir. There may be nearer relatives; the ward may have children living.</p> <p>It dobs not appear affirmatively that the appellant is legally interested in the ward’s estate, and is, therefore, not a person “aggrieved.”</p>

On exceptions. This was a complaint under the statutes charging two offenses ; first, for refusing to receive the complainant’s grain to be ground, and, second, for taking excessive tolls for grain received and ground by the defendants.

On report. This was an action of assumpsit by the plaintiff bank of Boston, Massachusetts, as holder and owner of the defendants’ promissory note for $5000 payable at any bank in Boston to the order of Dudley C. Hall, one of the defendants, and by him indorsed. It tras dated at Boston, November (5, 1890, and became due March 6 — 9,1891.

<p> Insolvency. Attachments. B. 8., c. 70, % 33; 8tat. 1891, c. 109. </p> <p>By R. S., c. 70, § 33, attachments made within four months of the filing of a petition in insolvency are dissolved by the assignment.</p> <p>Chapter 109 of the Statutes of 1891, authorizing insolvency proceedings against non residents, does not affect contracts made before its passage.</p> <p>The property of a non-resident debtor was attached in this State by a resident creditor prior to the passage of the'above statute. The assignee, appointed under insolvency proceedings begun thereafter, appeared in the action and pleaded the proceedings in dissolution of the attachment. The attaching creditor was not a party to the proceedings in insolvency. Held; that the question of the dissolution of the attachment did not arise for determination in this action.</p>

<p> Water Companies. Easement. Exclusive Possession. Ice. Trover. Special Laws, 1887, c. 94. </p> <p>A water company having by authority of its charter taken, as for public uses, land and the water of a stream flowing through it for the purpose of obtaining a sufficient supply of water and for the construction of reservoirs, is entitled to the exclusive possession of such land and to the enjoyment of such riparian rights as appertain to the land.</p> <p>The original owner cannot maintain an action against any person for taking ice from the stream flowing through such land, as such taking is no injury to the reversion.</p>

On motion. This was an action on the case in the nature of waste under R. S., c. 95, § 5, to recover three times the damage alleged to have been done by the defendant in cutting wood and lumber on a certain four acre lot described in the plaintiff’s declaration. The plaintiffs claimed that they and the defendant are tenants in common of the premises. The defendant pleaded the general issue and set up title by disseizin in a brief statement of further defense.

On report. This was a bill in equity, in the nature of a bill of interpleader, brought by the executors of the will of the late Horatio N. Jose, of Portland, to determine the construction of two policies of insurance in force upon the life of Mr. Jose, at the time of his death, and the legal rights of the opposing claimants to the insurance moneys received by the executors. The case was reported to the law court, and heard on bill and several answers.

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

Agreed statement. This was an appeal by the defendant from an award of damages made by the County Commissioners upon the petition of the Lime Rock Railroad Company who had taken her property within its location.

On report. Bill in equity, heard on bill, answers and testimony, to determine the construction of a will. The case appears in the opinion.

<p>Trustee Process. Disclosure. Si. 8-, c. 86, § 30.</p> <p>The court adheres to the rule that when a trustee disclosure is not contradicted by other evidence and appears to be full and true, it is to be deemed to be true in deciding how far he is chargeable.</p>

<p> Lease. Covenant. Way. </p> <p>A covenant in a lease of land, “to provide the said lessee with, a suitable right of way to get to and from said lot,” is not a covenant of warranty, or guaranty ; and it is not performed by showing that a right of way by necessity already existed. It is a covenant to do something, and is broken by the covenantor’s inaction.</p> <p>On motion and exceptions.</p> <p>This was an action for the breach of a covenant in a lease made by the defendant to the plaintiff, and in which the jury returned a verdict of $477.63 for the plaintiff.</p>

<p> Way. Appeal. Notice. Stat. 1891, c. 5. </p> <p>It is not a fatal objection to the validity of an appeal from the action of a joint board of the commissioners of several counties, in refusing the discontinuance of a highway through sections of such counties, that the commissioners of the county where the appeal was filed failed to notify the other commissioners of the fact, although under obligation to do so by chapter five of the laws of 1891; the requirement is directory merely.</p>

<p> Judgment. Foreign Creditor. Attorney. Insolvency. Discharge. </p> <p>Promissory notes held by a firm residing without this State were assigned to an attorney at law residing within the State for collection in his name for the benefit of the firm, the attorney recovering judgment thereon in his own name.</p> <p>Held; In an action on the judgment in the attorney’s name the defendant’s discharge in insolvency is a bar against arecovery against him, although it might have been otherwise had the judgment been obtained and the action on it instituted in the name of such firm.</p>

<p>Intox. Liquors. Officer. Arrest. Delay to prosecute. B. 8., c. 27, § 39.</p> <p>An owner of liquors which were seized from him by an officer without a warrant, and kept eight days before a warrant was obtained, without any justification for the delay, cannot be held in criminal proceedings instituted against him personally for having such liquors in his possession for illegal sale; the officer became a trespasser by the delay and the seizure void.</p>

On exceptions. The case appears in the opinion. Evidence not admissible to show that defendant signed due-bill. as agent, or did not intend to bind himself or change his liability. 1 Greenl. Ev. § 275 ; Sturdivant v. Hull, 59 Maine, 172; McClure v. Livermore, 78 Maine, 390 ; Bigelow on Bills,, p. 46 ; Bartlett v. Hawley, 120 Mass. 92 ; Tucker Mf’g Co. v. Fairbanks, 98 Mass. 101; Mellen v. Moore, 68 Maine, 390; Towne v. Rice, 122 Mass. 67 ; Davis v. England, 141 Mass, p. 590.

<p>Msh and Game. Pleading. Indictment. “ Unlawfully.” K. 8., c. 40, § 49.</p> <p>The statute (It. S., c. 40, § 49) declares it illegal to “sell trout” during close time. The complaint alleges that the respondent on a certain day named “ did sell trout” to a certain person named, the day of the sale being within close time. Both the statute and the complaint describe the offense in general terms. Held; that the complaint is good.</p> <p>The complaint is not defective because it omits to aver that the act complained of does not fall under certain other statutes which make the taking and selling of trout permissible under certain conditions. There is no proviso or exception in the section on which the complaint is founded.</p> <p>It is not a defect that the complaint does not allege that the act complained of was done “unlawfully.” The insertion of the word unlawfully in an indictment or complaint is necessary when the statute uses it in describing the offense. But not necessary when, as here, the statute omits the word, but in its general terms declares the offense. Still, it is wise always to employ the word in charging the elements of an offense, because it negatives all legal cause of excuse for the act committed.</p>

On exceptions. This was an action for a libel upon the plaintiff, in which the jury rendered a verdict for the defendant. The plaintiff took exceptions to the testimony elicited from his wife, upon her cross-examination, as appears in the opinion. Objection to this line of testimony, rests upon the following grounds, viz : That all these interviews and conversations were subsequent to any act of the defendant, alleged or proved by. plaintiff, as a part of this case.

On exceptions. This was an action of assumpsit tried in the Superior Court, for Cumberland County, without the intervention of a jury and submitted for decision upon an agreed statement of facts, the material parts of which appear in the opinion of the court. The plaintiff took exceptions to the rulings in matters of law by the presiding justice.

<p>Bond. Suretij. Contribution. Discharge. Ji. /S'., c. 82, § 45.</p> <p>The failure of a collector of taxes to sign his bond delivered to the town with sureties will not invalidate the same, because the liability imposed by law is precisely the same as if the bond had been signed by the principal. The covenants in the bond would not have changed the legal relation of the parties.</p> <p>When sureties bind themselves severally for the payment of the same debt they are liable to contribution so that all shall fare alike. The release of one by deed would release all; but the discharge of one on part payment of the liability, would not, although the discharge of the debt might do so, under the provisions of E. S., c. 82, § 45.</p>

On exceptions. From the bill of exceptions it appears that this case began by a petition presented to the county commissioners of Oxford county, signed by the selectmen of Andover, praying for the location of a highway as therein set forth, commencing at Andover Corner in town of Andover and extending through towns of Andover, Roxbury and Rumford, via Swain’s Notch, so-called, to Rumford Falls.

<p>On exceptions.</p> <p>The cases appear in the opinion.</p>

On report. This was an action on the case against the defendant for negligently and carelessly maintaining a skid-way or landing so near to the passing trains of the Phillips andRangeley Railroad as to endanger the lives and limbs of persons having occasion to pass upon the trains and in the management thereof, whereby the plaintiff’s intestate, a brakeman on one of such trains, received injuries that resulted in the loss of his life. The plea was the general issue.

<p>Partnership. Minor. Ratification. R. 8., a. Ill, § 2.</p> <p>A note was given by a firm, one member of which was then a minor. Upon dissolution of the firm, — by an oral submission to arbitration in which the note was expressly excluded, — the other partner assumed all its liabilities, retaining the assets, and was required to pay the note. He sought to recover one half of the amount so paid from his co-partner. Seld; that if the note was a firm liability it belonged to the plaintiff to pay the whole of it by the terms of the dissolution; if not such a liability, then it was a joint promise for which the defendant, being a minor, is not holden, he not having ratified his promise in writing according to the statute since he became of age.</p>

<p>Pleading. Cruelly to Animals. Charge or Custody. S., e. 124, § 29.</p> <p>A complaint, charging a defendant with having the “ custody and control” of a horse without further particulars, is sufficient under a statute which provides a penalty for cruel treatment of ahorse by any person “having the charge or custody thereof, as owner or otherwise.”</p> <p>The custody need only be alleged or proved.</p> <p>The statute excuses averments as to the particulars of custody.</p>

<p>On exceptions.</p> <p>The case is stated in the opinion.</p> <p>If the given name of Willetts was not known, it should have been so stated in the indictment, giving the initial letter gives the defendant no knowledge of who Willetts is or which Willetts it is. And gives him no opportunity of shoAving, in case of another indictment for selling to Stephen A. Willetts that he has been once convicted of selling to S. A. Willetts, because this being upon demurrer there is no evidence and will be none that S- A. Willetts means Stephen A. Willetts any more than it means Susan A. Willetts or Solomon. Heard Crim. Law, p. 32.</p> <p>Counsel cited : Com. v. Blood, 4 Gray, 33 ; Com. v. Thurlow, 24 Pick. 374; Com. v. Stoddard, 9 Allen, 280, 282, and cases ; Com. v. Intox. Liquors, 116 Mass. 21, and cases ; Com. v. Clover, 111 Mass. 401; Com. v. Crawford, 9 Gray, 129, and cases; Com. v. Pope, 12 Cush. 272; Com. v. Ilill, 11 Cush. 141; Com. v. Finn, 108 Mass. 467.</p>

On exceptions. This was an action of trespass for assault and false imprisonment in which the jury returned a verdict for the defendant.

<p> Will. Money Legacies. Besidue. Power of Sale. </p> <p>General money legacies may become a charge upon real estate when there is not sufficient personal property for that purpose after the payment of the testator’s debts.</p> <p>A testator after giving sundry money legacies, not a charge upon any specific part of his estate, gave his executor power to manage, sell and convey his real estate and to distribute the proceeds and income thereof as he might thereafter in his will provide. He then gave all the residue of his estate both real and personal and income of the real estate before mentioned to certain residuary legatees. The personal estate after payment of debts, &o., was insufficient to pay all the money legacies.</p> <p>mid; that all the real estate should be converted into money by the executor, that the debts and legacies should be paid, and the residue remaining should go to the residuary legatees.</p>

<p>Probate. Widow’s Allowance. Non-resident Decedents. Stat. 1821, c. 51, §§ 8, 39; B. S., c. 65, § § 21, 36-, Pub. Stat. Mass. c. 135, § 2.</p> <p>Courts of probate are tribunals of special and limited jurisdiction. They exercise only such powers as are directly conferred upon them by the statutes, and such as may be incidentally necessary to the execution of these powers.</p> <p>A judge of the probate court in this State has no authority to decree an allowance to the widow of a non-resident decedent from assets in this jurisdiction on which there is ancillary administration. The widow’s claim for an allowance is not only controlled by the law of the State where the deceased husband had his home at the time of his death, but the decree therefor must be made by the probate court in the State of the decedent’s domicil.</p> <p>Whether the widow’s situation would have been improved, if she had obtained from the court in Massachusetts a decree for an allowance with a representation of insufficient assets there to respond to it, and had then asked to have the claim satisfied from the assets in this State, subject to the claims of creditors residing here, quaere.</p>

On exceptions. This was an action of assumpsit on account annexed begun by a capias writ, on which the defendant was arrested. The defendant, on motion day, moved to dismiss the action, because the certificate and oath, upon which the plaintiff relied as a foundation for the arrest, was not made before and certified by a justice of the peace, and because the service was illegal. The oath on the writ and the certificate of it appeared to bo made before a notary public.

<p> Deed. Reservation. Life Tenant. Remainder Man. Waste. </p> <p>In an action in tlie nature of waste it appeared that the plaintiff held a warranty deed from John Orff which contained the following clause, viz: “ Reserving thirty acres of said land on the Medomalt river during my natural life with all the privileges and appurtenances thereof to the said John Orff.” Held.; that the legal effect of this reservation was precisely the same as that of a grant from a stranger of an estate for life to Orff with a remainder in fee to the plaintiff'.</p> <p>It enabled Orffto retain possession until his death and postponed the plaintiff’s enjoyment of his estate in remainder until that event. It created a fixed right of present enjoyment in Orff and a fixed right of future enjoyment in the plaintiff.</p> <p>One had the interest of a life tenant and the other of a remainder man, and the same result follows respecting liability for waste as usually follows from that position of the parties under our law.</p> <p>The life tenant would be liable for waste.</p> <p>When a grantor reserves to himself a life estate in the granted premises and desires greater privileges in the enjoyment of such reservation than legally pertain to the ordinary life estate, he must have stipulations to that effect inserted in the deed.</p> <p>Settled rules of law are not permitted to yield in cases of hardship, or misfortune, in special instances; otherwise, there can be no certainty or uniformity in the disposition of landed property, or security in the law.</p>

<p>On exceptions.</p> <p>This was an action of replevin in which the writ was quashed at the return term.</p> <p>The presiding justice ordered a return of the property replevied and left the question of damages to be determined on the bond; and in absence of pleading's in the case, ruled as matter of law that the defendant was entitled to the order for return, without the production of testimony.</p> <p>To this ruling the plaintiff took exceptions.</p> <p>By II. S., c. 96, § 11, the defendant is entitled to judgment for return only when it appears that the defendant is entitled to a return of the property replevied, and in order to ascertain that fact, it is necessary to have a hearing. The judgment for return is, by the statute and the law of this State, the final judgment in a replevin suit, and involves all the characteristics of a judgment, and is made up as a result of a hearing of the parties upon the production of legal and competent testimony.</p> <p>It involves an inquiring into and an adjudication upon the the merits of the question at issue, and will be rendered only as law and equity shall require. It does not, as a matter of course, follow the previous results of the suit. Tuck v. Moses, 58 Maine, 474; Gity of Bath v. Miller, 53 Maine, 315, 316.</p> <p>Equity requires that the parties shall have a hearing in order to ascertain whether the defendant is then entitled to a judgment for a return. Cases, sup7'a.</p> <p>The action is not disposed of until the question of return is acted upon, and until final judgment in a case both parties are in court and have a right to be heard. Tuck v. Moses, 58 Maine, 474.</p> <p>Even when the writ is abated for informality in the bond, the judgment for return is conclusive. In Tuck v. Mioses, the writ was abated for informalities of the bond, and judgment given lor a return; and the ruling of the court was that a judgment for return was conclusive, and until that judgment both parties were in court, with a right to be heard.</p> <p>Counsel cited: McArthur v. Lane, 15 Maine, 245 ; Gollins v. Evans, 15 Pick. 63; Greeli/ v. Gurrier, 39 Maine, 517 ; Fleet v. Loclcwood, 17 Conn. 233 ; Low v. Brigham, 3 Allen, 429; Gollamer v. Page, 35 Yt. 387; Cobb on Replevin, § § 1117, and cases in note, 1119, 1199 ; Morton v. Sweelser, 12. Allen, 134; Walbridge v. Shaw, 7 Cush. 560.</p>

On report. This was an action on the case in which the plaintiff alleged that she purchased, at two different times, in Boston, alcohol to be used in her business of compounding a certain medicine and delivered it to the defendant in Boston to be carried to New Gloucester, in this State ; that while in transit, and in its possession, the defendant drew off about one half and adulterated the remainder with water, so that it became unlit for the usé intended by the plaintiff;…

<p>On exceptions.</p> <p>This was a case in equity, brought by the Insurance Commissioner of the State, against the defendant corporation to wind up its affairs, and came on for hearing upon the acceptance of the master’s report, to which exceptions had been taken by John A. Burrill, a judgment creditor, who had intervened and become a party, so far as said report directed that his claim should share pro rata with all other claims allowed by the master instead of being ordered to be paid in full from the deposit made by the defendant company in the hands of the State Treasurer,, as security for the certificate holders of said company.</p> <p>It appeared that the claimant, being a certificate holder in said company, recovered judgment against said corporation in this court, on the twenty-ninth day of April, 1892, for the sum of $500.00 ; execution issued thereon on the second day of May, 1892, and the attorneys for said creditor, on the thirty-first day of May, 1892, more than thirty days after the rendition of said judgment, during which time the same had remained unsatisfied by the defendant company, made demand upon the State Treasurer that his said judgment be satisfied as provided by the charter of said company, viz: Priv. and Spec. Laws, 1887, c. 16, sec. 5, from the deposit of said company then in his hands for such purpose, which he did not then do, nor has since done.</p> <p>The bill in this case was filed June 4, 1892, within sixty days from the rendition of said judgment; and-it was contended on the part of the company that, especially by the terms of Stat. 1889, c. 237, sec. 6, the claimant was not entitled to receive payment of his claim in full, but must share equally with the other creditors of said company. It was further contended that, under the provisions of the charter of said company, the claimant would not be entitled to payment in full upon winding up of the affairs of the corporation, without the aid of the Stat. of 1889.</p> <p>It was contended on the part of the claimant, Burrill, that the Priv. and Spec. Laws, 1891, c. 178, aided the contention that his claim should be paid in full, and required that the claim should be so paid and not be compelled to share pro rata with the other creditors of the company.</p> <p>The court ruled, as, matter of law, that the plaintiff’s claim was not preferred and ordered it to be paid pro rata with the other creditors of the company.</p> <p>The claimant thereupon took exceptions to this ruling.</p> <p>The charter of this company is not enlarged or changed by Stat. 1889. Lien was perfected five days before these proceedings. Gray v. Go. Gom. 83 Maine,. 429; Starbird v. Brown, 84 Maine, 238 ; State v. Oleland, 68 Maine, 258 ; Fales v. Whiting, 7 Pick. 225 ; Hamden v. Gould, 126 Mass. 411.</p>

On motion and exceptions. This was an action on the case for injuries which the plaintiff alleges she sustained, September 18,1892, through the negligence of the defendant in erecting and maintaining a pole for the support of its trolley-wires upon Exchange street in the city of Bangor.

<p>On report.</p> <p>This was a petition for partition.</p> <p>The case is stated in the opinion.</p>

<p> Deed. Notice. Judgment. Non-Resident Debtor. </p> <p>A grantee in a deed not recorded does not prove that a person, who attached as the property of the grantor the premises covered by the deed, had at the time actual notice of the existence of such deed, by showing that such person, in a conversation which took place some years before the date of the attachment, and at a time when he had no interest whatever in a knowledge of the fact nor any motive for remembering it, was informed that the grantor had made a conveyance of the premises; but, to constitute actual notice, it should also further appear that such person actually remembered the fact of the conveyance when his attachment was made.</p> <p>A judgment against a non-resident, over whose person the court has not jurisdiction, but whose property is attached in this State, is not invalid because it is in form general against both property and person, instead of special and limited to the property attached; such a judgment is special in effect.</p>

On report. This was a statutory action of debt to recover the taxes assessed, for the years of 1891 and 1892, upon the defendant’s real estate in the city of Auburn. The presiding justice who heard the case ordered judgment for the plaintiff in the sum of $426.80. The parties agreed that the evidence should be reported to the law court. If the tax in the opinion of the law court was not sustainable, judgment should be for the defendant; otherwise, the judgment was to stand.

<p>On report.</p> <p>This was an action brought in this court, in Cumberland county, for the recovery of $24,690.08, damages for breach of a contract claimed by the plaintiff to have been made with the defendants, by which it chartered to the defendants certain space, at a price designated, on the three steamers, Vancouver,' Sarnia and Oregon, owned by the plaintiff' company, which space was to be fitted with refrigerators and used by the defendants for the shipping of dressed meat.</p> <p>The principal part of the evidence consists of letters and telegrams between David Torrance & Co., steamboat agents of the plaintiff company, who had an office both in Montreal and Portland, and these defendants, represented by Mr. Edwin C. Swift, at Boston. The correspondence beginning November 19, 1889, and continuing until the latter part of 1890, is stated in the opinion of the court.</p> <p>The plaintiff claimed that the minds of the parties were together and that the contract was complete April 5,1890. Plea, general issue and the statute of frauds. The defendants denied that any contract was made or signed.</p> <p>Statute of frauds. Contracts to be performed within one year : Farwell v. Tillson, 76 Maine, 227; Duffy v. Patten, 74 Maine, 896 ; Walker v. Johnson, 96 U. S. 424. Memorandum : Ryan v. U. S. 136 II. S. 68, p. 83 ; Jenness v. Iron Co. 53 Maine, 20 ; Williams v. Robinson, 73 Maine, 186 ; Wood on Fraud, § 345; Browne Stat. Fr. § 371 ; Chitty Cont. p. 95, n. P; Addison Cont. 8th Ed. App. p. 266 ; Atwood v. Cobb, 16 Pick. 227.</p> <p>The memorandum in this case shows a definite offer and an equally defiuite acceptance, together with a tender of performenee by the plaintiff' and a promise of immediate performance by the defendants. The fact that matters of form or detail were still to be arranged does not in any way invalidate the contract thus made by the parties. The contract was made by the acceptance of the offer duly communicated, and this contract shewn by the memorandum is not affected by the mere circumstance that the parties intended to enter into a formal future contract. Bonnewell v. Jenkins, 8 L. R. Ch. Div. 70 ; Oibbins v. The Worth Eastern Metropolitan Asylum District, 11 .Beavan, 1; Darlington Iron Qo. v. Foote, 16 Fed. Rep. 646 ; Fry on Specific Performance, § 492.</p> <p>Defendants’ acceptance of April 5th, was absolute and not in any way contingent upon the execution of a future formal contract, and it constituted a final agreement between the parties, which could not be affected by any more formal contract. Ghinnoclc v. Marchioness of Ely, 4 DeGr. J. & S. 638 ; Fry on Specific Performance, § 492.</p> <p>The recognition of the contract may be contained in a letter, and if it admits the contract and refers to the memorandum in such a manner that the court can connect it therewith, and ascertain the terms of the contract without the aid of parol evidence, it is sufficient to bind the defendants, although they did not intend thereby to ratify the contract. Brown on Stat. Frauds, § 346; Wood on Frauds, § 345.</p>

On motion ano exceptions. This was ail action on the case brought in the Superior Court, for Cumberland County, to recover damages for personal injuries alleged to have been received by the plaintiff, through the negligence of the defendant’s servants, while attempting to pass over the gang-plank, or bridge, from the defendant’s wharf in Bath to their steamboat, on the twentieth day of November, 1890.

This was an indictment against the city of Auburn for neglecting to open a highway laid out in that city by the county commissioners. Held: all the judges concurring, on the authority of State v. Small, 80 Maine, 452, of Wells v. Commonwealth, 12 Gray, 326, and of Shorey v. Chandler, 80 Maine, 409, that An indictment must allege a particular day on which the offense was committed even if it be set out with a continuando,” the authorities even going so far as to hold…

On report. The case is stated in the opinion. The necessity requisite need not be an absolute physical necessity, but one reasonably so. Pettengill v. Porter, 8 Allen, 6; Schmidt v. Quinn, 136 Mass. 576, and cases. Cases in So. Carolina were islands.

On report. This was a bill in equity, inserted in a trustee writ, by an administrator de bonis non, to recover the possession and control of a sum of money in the Kennebunk Savings Bank, and which the plaintiff claimed was a part of the estate of Joseph Storer, the deceased testator, left unadministered by the ex-eoutrix, his widow, the plaintiff’s predecessor in office of whose estate the defendant is administrator. The case was heard on bill, answers and testimony.

<p>On report.</p> <p>This was an appeal from the Probate Court, for Cumberland County, allowing the will of George H. Townshend, deceased.</p> <p>The appellant, Lewis J. Townshend, brother of the testator, was granted leave, under R. S., e. 63, § 25, to enter and prosecute the appeal by this court at the October term, 1892, after the decision reported in 85 Maine, 57.</p> <p>Among the reasons for appeal put in evidence are the following :</p> <p>" Because the said instrument purporting to be the last will and testament of said George H. Townshend, if ever made and executed by him, was, by him, intentionally destroyed and revoked in his lifetime by being by him intentionally cancelled and obliterated, the said Townshend being at the time of sound mind.</p> <p>"Because the said George H. Townshend in his lifetime, intentionally revoked said instrument purporting to be his will, by intentionally cancelling and obliterating the clauses numbered second and third therein, and by cancelling and obliterating his signatures thereto.”</p> <p>■ About the: middle of May, 1889, the testator on his journey from California to his home in Portland, arrived in Denver, Colorado, too sick to proceed further. On the eighth day of June following he made his will, the scrivener retaining the custody of it. On the following day the appellant, his brother, arrived in Denver and took charge of him, remaining until his death, June 28th. Three or four days after his arrival at Denver, the testator sent by his brother, who was his sole heir, a note to the scrivener for the will, saying he wanted it and that he was going to destroy it. The will having been obtained and delivered to the testator, he tore open the envelope containing it and took out the papers. He then asked for a pencil and having interlined and worked on it for some time marking out and changing several clauses, at last crossed off his name with the pencil where it had been signed on each page, and then said to his brother, "There, Lewis, it is all yours; how does it suit you ?” He then took it and put it in the envelope and put it in his pocket. In subsequent conversations with his brother, the testator said, "I have got $5000 or $7000 now, and if I die it is all yours. You know I would not take anything away from you.” He retained possession of the will all the time afterwards until his death when it appears to have been obtained tortiously by one Wilson from whom it was finally procured by the active intervention of the appellant and appellee, who both testify that it appears now the same as when it was surrendered. There was also found in the same envelope another paper appearing to be a partial copy of the will, admitted to be in Wilson’s handwriting, but without signature and omitting a legacy of two thousand dollars to the appellee contained in the first writing or will.</p> <p>Other material facts are also stated in the opinion.</p> <p>The appellee also filed two motions which are considered and disposed of in the opinion of the court.</p> <p>Counsel cited: R. S., c. 74, § 8 ; 1 Jar. Wills, 5th Am.fSd. (Randolph & Talcott) pp. 290, 291 note, 293 note 16, 295, 301; 2 G-reenl. Ev. § 681; 1 Red. Wills, 4th Ed. p. 339, citing Price v. Powell, 3 H. & N. 341 at p. 318 ; Dan v. Brown, 4 Cow. 483; Avery v. Pixley, 4 Mass. 460.</p> <p>Arguments on motions and facts omitted. Counsel cited : (Revocation) Rich v. Gilkey, 73 Maine, 597 ; Schoul. Wills, § § 380, 391, 398, 401, n. 2,'408-9, 423, 431, n. 3 ; 1 Will. Ex. 124, 128-9, 159, 160 ; 1 Jar. Wills, 135, 291; Row. Dev. 425 ; Benson v. Benson, L. R. 2 P. & 1). 174; Finch v. Finch, L. Rl 1 P. & D. 372 ; Hitchins v. Wood, 2 Moo. P. C. 355 ; Harwood v. Goodright, 1 Cowp. 87 ; Bennett v. Sherrod, 3 Ired. Law (N. C.), 303 (40 Am. Dec. 410) ; Wikojf’s Appeal, 53 Am. Dec. 600; Oolvin v. Fraser, 2 Hagg. 327, cited in Oollagan v. Burns, 57 Maine, 455 ; Winn v. Ileveningham, 1 Coll. 638 ; Jones v. Murphy, 8 Watts & S. 275. Where a pencil instead of a pen is used for cancelling, the courts regard the act as prima facie deliberative. Ilawkes v. Ilawkes, 1 Hagg. 321; Edwards v. Astley, 1 Hagg. 490 ; In re Bode, 5 Notes of Cas. 189 ; In re Hall, L. R. 2 P. & I). 256 ; Gardiner v. Gardiner, 65 N. H. 230; Sch. Wills, § 391; 1 Jar. Wills, *291; Barker v. Bainbridge, 3 Phill. Eec. R. 321.-</p> <p>When the act of cancelling is not a substantive, independent act, but is connected with and dependent upon another, and both form but one transaction, the entire design and purpose must be considered in order to ascertain whether a revocation has been accomplished. Onions v. Tyrer, 1 P. Wins. 343 (S. C. 2 Vern. 742,) ; Case in 3 Eq. Cas. Abr. 776; Hyde v. Mason, vid. 1 Wms. Exors. *130; Harwood v. Goodright, supra; Short d. Gastrell v. Smith, 4 E. 419 ; Perrott v. Perrott, 14 E. 439 ; In re Goods of Applelee, 1 Hagg. 143 ; Malone v. Hobbs, 1 Rob. (Va.) 346 (S. C. 39 Am. Dec! 266,) ; In re Bode, supra; Dancer v. Orabb & Thompson, L. R. 3 P. & D. 98; Hoitt v. Hoitt, 63 N. H. 475 ; Gardiner v. Gardiner, supra. Counsel also argued that certain declarations of the testatorare inadmissible and cited : 1 Woerner Aui. Law, 90, n. 5 ; Gay v. Gay, 60 Iowa, 415 (46 Am. Rep. 78,) ; Pickens v. Davis, 134 Mass. 257 ; Coles v. Mordaunt, 4 Ves. 196, n. ; Bovell v. Quitman, 88 N. T. 377 (42 Am. Rep. 254,) ; Jackson v. Kniffen, 2 Johns. 31, (3 Am. Dec. 390) ; Boylan v. Meeker, 28 N. J. L. 278 ; Clark v. Smith, 34 Barb. 140; Osgood v. Manhattan Go. 3 Cow. 612; Shailer v. Bums lead, 99 Mass. 112; Ootton v. Smithwick, 66 Maine, 360.</p>

<p>Exceptions. .Practice. II. 8-, c. 77, § 51. Stat. Westminster, 2 (18 E'dw. 1 c. 31).</p> <p>Exceptions to the admission or exclusion of evidence should be noted at the' time.</p> <p>Exceptions to any ruling in the charge should be noted before the jury leave the bar of the court.</p> <p>Exceptions when properly noted should bo presented afterward to the court in a bill of exceptions in a summary manner, showing each ruling distinctly by itself.</p> <p>Where, instead of each exception being presented separately, the whole record is sent up with the statement that the plaintiff excepts to all the rulings, such exceptions will not be considered.</p>

On report. This was an action of forcible entry and detainer tried in the Municipal Court of the town of Farmington, Franklin County. Judgment was rendered for the plaintiff, and the defendant appealed to this court sitting at nisiprius. The facts appear in the opinion. Only question is one of title. Abbott v. Horton, 53 Maine, 158. Plaintiff has a right to immediate possession. Dyer v. Chicle, 52 Maine, 350.

On motion and exceptions. This was a real action to recover possession of a small piece of land situate in Pittsfield village, in the County of Somerset. Plea, the general issue. During the progress of the trial the defendants introduced evidence tending to prove the loss of an unrecorded deed from Hiram B. Connor to Thomas McCausland of the piece of land in controversy, also a deed of release with a persona] covenant of warranty from McCausland to Harriet Chase.

<p>On report.</p> <p>Bill in equity, brought in this court, for Cumberland County, by an assignee in insolvency, to set aside a conveyance of real estate in Brooklyn, N. Y., made to the debtor’s wife, before marriage, and alleged to have been made in fraud of creditors.</p> <p>It appears from the pleadings in the case that the deed in question given by the debtor, Ward, is dated February 1, 1889, the consideration expressed therein being four hundred and fifty dollars, and was recorded August 22, 1889. The insolvent and the defendant were married May 30, 1889. He began to purchase goods of the plaintiff’s firm as early as February 1, 1889, and filed his petition in insolvency June 20, 1890, when he was indebted to said firm to the amount of $3,472.95.</p> <p>The case was heard on bill, answer and testimony.</p> <p>Marriage cannot be given in evidence as the consideration of a deed of bargain and sale expressed to be for a money consideration only. Beits v. The Union Bank of Maryland, 1 Harris & Gill, (Md.) 175, and the cases there cited.</p> <p>No additional consideration can be proved repugnant to the one mentioned in the deed. Smith v. Davis, 49 Md. 472.</p> <p>A voluntary settlement by a man who is indebted, is fraudulent and void, if the debts existing at the time of the conveyance are only paid by contracting other obligations which finally result in insolvency. Antrim v. Kelly, 4 B. Reg. 189.</p> <p>A voluntary conveyance made by a person who is indebted is prima facie, fraudulent, and the burden is on the grantee to show that the debtor had abundant means, besides the property conveyed to pay all his debts. Pratt v. Oartis, 6 B. R. 139.</p> <p>Where the deed is kept from the records, and the debtor appears to be the owner and obtains credit upon the faith of the property, a voluntary conveyance is void as to subsequent creditors. In re Rainsford, 5 B. R. 381.</p>

On report. These were actions of assumpsit to recover supplies, furnished' by the plaintiff town to Emma E. Smith, and was tried in the-Superior Court, for the County of Cumberland. After the testimony was taken out, the two cases were reported together-to this court for decision upon such portions of the evidence as-were admissible.

<p>On exceptions.</p> <p>The case is stated in the opinion.</p> <p>The case is a civil one in procedure, and exceptions are open to the State in behalf of the real plaintiff, the heir of the deceased.</p> <p>Those portions of the judge’s charge excepted to are open to a double construction, which would authorize the jury to act upon evidence not presented upon the witness stand, in determining the material issue.</p> <p>Counsel cited :■ Slate v. G. T. JR. JR. Go. 58 Maine, 176; State v. Same, 60 Maine, 181; State v. M. G. JR. JR. Go. 77 Maine, 244; Slate v. E. & N. A. JR. JR. Go. 67 Maine, 479 ; 3 Bl. Com. 374; Schmidt v. Ins. Go. 1 Gray, 535-6 ; 1 Stark. Ev. 449 ; Parks v. Boston, 15 Pick. 209; Patterson v. Boston, 20 Pick. 166; JMurdock v. Sumner, 22 Pick. 156; JDouglassv. Trask, 77 Maine, 35; State v. Bartlett, 47 Maine, 395; Page v. Alexander, 84 Maine, 83 ; Ottawa Gas Light Go. v. Graham, 28 Ills. 73 (81 Am. Dec. 263).</p>

On report. This was an action upon a promissory note as follows: Embden, July 2nd, 1891. Thirty days after date, for value received, I promise to pay the town of Embden, or order, one hundred and eighty dollars and 70-100, interest after. Samuel Bunker.” The defendant is a resident of the town of Anson, owning real estate in the town of Embden.

Agreed statement op pacts. It appeared from the agreed statement that the defendant corporation, in 1891, constructed a road bed upon its own land extending from Gilead, in Oxford County, to a point in New Hampshire, about four miles beyond the State line, and furnished said road with sleepers and iron rails upon which to run its locomotives and cars, for the transportation of its own lumber from the lands of the said corporation in New Hampshire to said Gilead.

On report. This was an appeal to the Superior Court, for Cumberland County, from the Municipal Court of Portland in a suit to recover taxes assessed upon defendant’s poll and personal estate. The defendant denied that the annual meeting at which the assessors were elected was legally warned, and that the written direction by the selectmen, under which the action was brought, was sufficient. The first objection became immaterial and arguments relating to it are omitted.

On exceptions. Assumpsit for rent. The following is the material part of the report of the referee, Hon. Enoch Foster, to whom the action was referred, and to which the defendants excepted : The… Held: that the right to use the waters covering flats for navigation purposes was not abridged by the ordinance. That vessels had a right to pass over the flats when covered and to-remain on them for commercial purposes when bare from ebb to flow of the tide.

<p> Partnership. Corporations. Estoppel. Lease. </p> <p>The plaintiffs alleged that they and the defendant, Bass, formed a private business partnership for holding fairs, races, etc., witli the view to the pecuniary profits thereof accruing- to themselves personally; that as such partnership they had acquired and held a leasehold from the defendant, Bass, of the fair grounds, having made erections, constructions and improvements ; and owned them as partnership assets together with a surplus in cash.</p> <p>The prayer of the bill was for a dissolution of the partnership, a sale of the> leasehold estate and a division of the proceeds, with the cash surplus, among the partners.</p> <p>At the hearing upon the bill in the court below, before a single justice, it appearing to him that the parties had held themselves out, at first, as self-constituted trustees for the purpose of holding public fairs, and later, as trustees under authority of a legislative charter granted to the Eastern Maine State Fair, the plaintiffs were required to make the corporation a party to the suit.</p> <p>Held; upon the facts found by the court that, whatever may have been the original understanding or design of the parties, they have so plainly and continuously held themselves out as managers, officials, and trustees of a public enterprise, and have thereby obtained so much public support and money, they are now estopped from asserting private ownership in all these public contributions.</p> <p>Also, that the public having an interest in these proceedings, the corporation was a proper party to the bill.</p> <p>The plaintiffs contended further that the corporation had ceased to exist and never had a legal board of executive officers.</p> <p>Held; that they are estopped in these proceedings from denying the existence of the authority they had invoked and under which they assumed to act.</p> <p>The defendant, Bass, claimed that the lease from him as owner of the fee had been forfeited by non-payment of rent. It appearing that the lease did not provide for a re-entry in case of non-payment of rents, nor for a forfeiture or termination of the lease in that event, held-, that in the absence of such stipulations, the mere non-payment of rent does not work a forfeiture.</p> <p>The court states the respective rights of the parties to the bill to be:</p> <p>(1.) The Eastern Maine State Fair is in possession of the grounds, described in the bill, now under lease to the three personal parties in the suit. The corporation, as trustee for the public, has the title to the buildings and other improvements, subject to the lessees’ rights to be re-imbursed for taxes paid by them and a reasonable rent for such time as the corporation, or its predecessors, have occupied their land for holding fairs. This claim for taxes and rent is, in equity, a lien on the property.</p> <p>(2.) The three personal parties have each an undivided third part of the leasehold estate. If the plaintiffs elect to regard it as subsisting and not surrendered, they are entitled to a division to be effected by a sale.</p> <p>(3.) The respective rights and duties of the three personal parties under the lease up to July 5, 1889, when defendant Bass claimed it was forfeited, can be determined in an action at law. Those rights and duties accruing after that date will depend upon whether the plaintiffs elect to claim their leasehold interest, or elect to abandon it.</p>

<p> Contract. Offer of Seward. Acceptance. Bevocation. </p> <p>An offer of reward for the detection of an offender or the recovery of property is a proposal merely; if acted upon before revocation, the offer and acceptance by performance become a valid contract for a sufficient consideration. It may be revoked at any time before acceptance.</p> <p>If such an offer is not accepted within a reasonable time after it is made, the law will conclusively presume that it has been revoked.</p> <p>A lapse of twelve years between the time that a reward is offered and the time of performance is more than a reasonable time, and in the absence of other facts the offer will be presumed to have been revoked.</p>

<p>On exceptions.</p> <p>Trover against the defendant, a deputy sheriff, submitted on an agreed statement of facts to the presiding justice, at nisi prius, when he gave judgment for the plaintiff, and the defendant excepted. It appears from the agreed statement of facts that the action was brought to recover the value of two heifers attached by the defendant upon a writ in favor of John Starbird, against the plaintiff, and returnable to the municipal court for the city of Lewiston, at its September-term, 1892. The writ was not dated, but the defendant’s return of his attachment thereon is dated June 26, 1892, and contains a count in trespass, q. c., and a count on account annexed.</p> <p>It was agreed that the cattle attached upon the writ were the property of the plaintiff, and were two and three years old respectively, and that neither was giving milk at the time. That at the time said cattle were attached, said plaintiff owned other cows, but that this attachment was made without the knowledge •of the plaintiff in this suit, and without any opportunity being afforded him to make any election as to which he would have exempt. The cattle were in possession of the plaintiff in the writ upon which they were attached at the time of the attachment, and he claimed and it was admitted for the purposes of this case only that he could prove, if admissible, that at the time of the attachment there was no pound or pound keeper in the city of Auburn; that the cattle were trespassing on the land of Starbird, and were taken by him while committing said trespass and shut up and detained by him until attached by the officer; and that they entered from the highway and not through any neglect on the part of Starbird, to maintain any partition fence.</p> <p>That the cattle so taken by Starbird were detained by him until the damages occasioned by their said trespass should be paid by Brown.</p> <p>It does not appear that the defendant ever had the possession of the property or ever exercised any dominion over it. Without such proof the plaintiff cannot maintain this action. Fernald v. Chase, 37 Maine, p. 289.</p> <p>Starbird had the right to the possession, Brown did not, until he should first pay llie lien claim of Starbird. Although the attachment was void and the defendant could not justify as an officer, he might nevertheless defend the detention of the goods as the servant of the party having the lien. Townsend v. .Nevjell, 14 Pick. 332.</p> <p>The genera] statute providing that all writs in municipal and police courts should be made returnable not less than seven or more than sixty days after date, was enacted in 187(5, subsequently to the act of 1871, creating municipal court of Lewiston. The general act passed subsequently to the special act does not repeal it. State v. Cleland, 68 Maine, p. 258; Allen v. Somers, 68 Maine, p. 247.</p>

<p> Equity. Mortgage. Foreclosure. Land beyond State. </p> <p>In a bill in equity between residents oftliis State to foreclose a mortgage upon real estate situated in another jurisdiction, after a breach of conditions, this court may, whenever it is necessary in order to prevent loss or protect the rights of a mortgagee, by proper decrees compel the mortgagor to convey to the mortgagee, by release deed, the equity of redemption, after default in payment of the amount ascertained to be due within the time fixed by the court.</p> <p>But ordinarily the holder of a mortgage should be required to resort to the remedies or to the courts of the jurisdiction in which the land is situated, and this court will not grant relief in such a case unless unusual or extraordinary circumstances exist and are alleged, showing the necessity of such relief in order to prevent loss or protect the rights of the holder of the mortgage.</p>

<p>Will. Absolute Gift. Life Estate. “ Also.”</p> <p>A testator bequeathed and devised certain specific articles of personal property and a pew in a meeting- house to his wife for life, and in the same clause he made a further bequest, using the following language, “ I also give and bequeath to my said wife, Betsey Loring, forty-five hundred dollars, to be paid to her in cash or in such personal securities as she may select from my estate.” Reid-, That by this language the testator made an absolute gift to his wife, of the sum of forty-five hundred dollars; and that the meaning of the word “ also” in this connection was “ in addition” rather than “in like manner.”</p> <p>By a subsequent clause in the will, the testator bequeathed and devised to others all of the real and personal property given to his wife, that might remain unexpended at her decease. Reid; that so far as the devise or bequest over applied to the absolute gift of forty-five hundred dollars, it was void.</p>

<p> Trust. Appointment. Disposition. Duration. Termination. </p> <p>Where property is given, granted or bequeathed to certain individuals to be used, appropriated and applied for their benefit, and in such manner that no other person, or persons, have or can have any interest in it, they thereby-become in effect the absolute owners of it, and may exercise all the rights belonging to them in that relation.</p> <p>The gift of the income of real estate is a gift of the real estate itself. The same rule applies as to personal property.</p> <p>A grantor conveyed all of his property to his children in trust for certain purposes. The trust deed contained a provision that the sum of $10,000 should be raised from the trust property, to be subject to the appointment and distribution of the grantor “ by will or other written instrument.” By his will executed several years before his death he fully exercised the power of appointment and distribution reserved, and subsequently by a written instrument, made a few days before his death, he again exercised this power, making a different disposition of the fund. Held; that the subsequent exercise of the power of appointment by the written instrument revoked the exercise of that power in the previously executed will.</p> <p>In the subsequent written instrument the appointor made use of substantially the following language: “I now desire that the following named persons shall receive the benefit of the $10,000. My wife, Amanda S., shall have paid to her annually the income of one third of the $10,000. The income of the remaining two thirds shall be equally divided between the children of my son, Alfred, and the two daughters, of my daughter, Annie V.” Then followed a provision to the effect that in the event of the death of either of the children of his son or of his daughter without issue, the share of the deceased should go to the surviving brother or sister. Held; that this was a full and complete disposition of the trust fund and that the rights of the persons named in said instrument are as follows :—</p> <p>(1-.) The widow is entitled to one third of the income of the fund during her life,</p> <p>(2.) During the continuation of the trust, the remainder of the income shall be paid one half to the children of the son, Alfred, and the other half to the children of the daughter, Annie V.; in the event of the death of either, the share of the deceased to be paid to the children of the deceased, if any, if not, to the surviving brother or sister.</p> <p>(3.) After the decease of the widow of the appointor, if all the parties who are then or may be interested desire the trust to terminate, this court could decree a termination of the trust and the conveyance or distribution of the trust fund to the persons then entitled, viz, one half to the children of Alfred and one half to the children of Annie V., if living; if any should have deceased atthattime, then his or her children would take their deceased parents’ share,, and if no children, the share of the deceased would go to the surviving brother or sister.</p> <p>(4.) If all the parties interested should not join in a request for a termination of the trust at that time, it would continue until it should be ascertained if either of the children of the appointor’s son, Alfred, or of his daughter, Annie V., died without issue. When that fact becomes ascertained, distribution of the fund can be ordered in accordance with the terms of the written instrument and as indicated in the opinion.</p>

<p>Tax. Suit. Written Directions. Pleading. Proof. It. 8., c. <?, § § 141, 175.</p> <p>The selectmen of a town gave a direction in writing to the tax collector of the town, properly dated, directed to the collector and signed by the selectmen, of the following tenor, “ Sir: You are hereby ordered to collect by due process of law, by suit or otherwise, all the taxes remaining unpaid to date.” Held; that this was not a direction to commence an action of debt in the „ name of the inhabitants of the town, as required by R. S., c. 6, § 175; and that without such a direction an action for the recovery of taxes in the name of the inhabitants of the town cannot be maintained.</p> <p>In an action for the recovery of taxes in the name of the inhabitants of a town, the failure to prove such a written direction as is required by the statute, may be taken advantage of in defense under a plea of the general issue.</p>

<p>On motion and exceptions.</p> <p>This was a case in which the petitioners sought to recover from the city of Portland damages for alleged injury occasioned them as owners of certain land, with buildings thereon, on Commercial street in Portland by the raising of the street by the city in front of petitioners’ property during the months of June, July and August, 1891.</p> <p>Proceedings were commenced by the petitioners, September 7,1891, under the provisions of § 68 of c. 18 of Revised Statutes as amended by chapter 97 of statute of 1887. Application was seasonably made to.the municipal officers of the city to view said street and assess the damages caused by the alleged raising of the street in June, July and August of the same year. View of the premises was had by the municipal officers, October 14, 1891, hearing had and petitioners were given leave to withdraw. Appeal was takén and entered in this court at the January term, 1892.</p> <p>The case was tried at the October term, 1892, before a juryl and the jury were allowed to view the premises. The jury returned a verdict that the defendant did raise said Commercia, street in manner and form as the petitioners claimed, but tbat the petitioners suffered no damages thereby.</p> <p>The case was then brought to the law court on a general motion for a new trial and upon exceptions.</p> <p>The case is sufficiently stated in the opinion.</p>

<p>Way. Culvert. Surface Water. Towns. 11. S., c. 18, § 67; Stat. 1889, c. 285.</p> <p>Where the evidence fails to show that the municipal officers constructed a “public drain,” or “ common sewer” in the exercise of any authority conferred by the statute of 1889, but satisfactorily proves that the acts complained of were performed by the highway surveyor while making necessary repairs on the highway by cleaning out the old ditch, and one or more of the culverts, in order that they might serve the purpose for which they were designed:</p> <p>Held; that if the effect of these operations was to cause the surface water to flow upon the plaintiff’s land adjacent more freely than it had previously been accustomed to do, no action will lie against the town for the damage thereby occasioned.</p> <p>Such proof will not sustain an action upon the statute of 1889, c. 285, relating to public drains and common sewers; and a verdict for the defendants may be properly ordered by the presiding justice.</p>

<p> Easement. Adverse Use. Aqueduct. Deed. </p> <p>An uninterrupted adverse use of the water of an artificial aqueduct for twenty years is sufficient to create a prescriptive right to the enjoyment of it to the ex-tentofsuch use the same as if the water had flowed in a natural channel. And the term of enjoyment requisite for the prescription is deemed to be uninterrupted when it is continued from ancestor to heirs and from seller to purchaser.</p> <p>When such an easement, though not originally belonging to an estate, has become appurtenant to it either by grant or prescription, a conveyance of that estate will carry with it such easement whether mentioned in the deed or not, although it may not be necessary to the enjoyment of the estate by the grantee.</p>

Agreed statement. This was an action of debt to recover a penalty under the statute, submitted to the law court upon the following statement of facts : This was an action of debt brought by the pilaintiff, a game warden, against the Bangor and Aroostook Railroad Company, to recover the penal sum for transporting game in close time, under the statute of 1891, chap. 95, sec. 13.

<p>Way. Petition. Notice. View. Hearing. Adjournment. B. 8, c. 18, § 26.</p> <p>A petition to county commissioners to lay out a way need not aver tlie fact that such way will cross a railroad track, although the railroad company must receive the statute notice of the pendency of such petition.</p> <p>It will not be fatal to the proceedings if notice to the railroad company is not given before a view has been commenced, provided a full view and hearingbe had after such notice by the commissioners.</p> <p>County commissioners may adjourn their proceedings from time to time and from place to place, although the day adjourned to may be a regular term day of their court, and all parties originally notified must take notice of such adjournments.</p>

On motion. The first action was trespass q. c. and the second, trespass on the case, with a count in trover for the conversion of a deed. The actions were tried together and the jury returned a verdict for the plaintiff in the first action and for the defendant in the second action.

<p>On motion.</p> <p>This was an action of trover to recover the value of certain machinery, specified and enumerated in the schedule annexed to the declaration, and which the plaintiffs alleged had been converted by the defendant. The jury returned a verdict for the plaintiffs, the damages to be assessed by the court according to the agreement of the parties.</p> <p>The defendant brought the case into the law court upon a general motion for a new trial. At the argument, the parties stipulated that the full court should hear the case as upon report and determine what number of articles, if any, had been converted; the damages to be assessed therefor by G. A. Wilson, Esq., agreed upon as assessor of damages.</p> <p>The case is stated in the opinion.</p>

On motion and exceptions. The case appears in the opinion. The jury have settled the question of the defendant’s negligence. They viewed the premises, and heard the evidence in court. Brown v. Moran, 42 Maine, 44; Campbell v. Eveleth, 83 Maine, 50; Beers v. Housatonic It. B. Co. 19 Conn. 566 ; O’Brien v. McGlinchy, 68 Maine, 552 ; Larrabee v. Bewail, 66 Maine, 376.

On report. The case is stated in the opinion. Defendant liable because tenants are not responsible for the roof or outside of the building, unless they agreed to take charge and keep the outside of the building in proper condition. Nothing in the case to indicate that tenants had control of the roof.

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

<p> Master and Servant. Negligence. Practice. Pleading. </p> <p>To maintain an action against his employer for personal injuries, the servant must establish some neglect of duty on the part of the master arising out of the relation between them, which was the direct cause of the injury, and which the master was bound to guard against.</p> <p>Ordinarily the question of due care, and of negligence, is one of fact for the jury.</p> <p>But where the facts are undisputed, and there is no evidence, or the evidence is too slight or trifling to be considered by the jury, then it is the duty of the Court to order a nonsuit.</p> <p>A case must not necessarily be submitted to the jury because there is a scintilla of evidence. There must be evidence having legal weight.</p> <p>If evidence is to be offered showing that the injury was received through the negligence of the master in selecting or employing incompetent fellow-servants, the declaration must contain such averment, otherwise the evidence is not admissible.</p>

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

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

<p>On exceptions.</p> <p>This was a search and seizure process against the defendant for illegally keeping and depositing intoxicating liquor in a certain shop and its appurtenances, situated on the east side of Lincoln street in Lewiston, on the twenty-eighth day of November, A. D., 1892.</p> <p>The evidence on the part of the State tended to show that the intoxicating liquors described in the complaint were found upon the person of the defendant and were taken from his pocket just as he stepped outside of the front door, by one of the officers executing the process.</p> <p>The defendant thereupon moved for his discharge on the ground of variance, ,but the presiding justice overruled the defendant’s motion. The defendant after a verdict against him, took exceptions to this ruling which were allowed.</p>

<p>On exceptions.</p> <p>The defendants were convicted of robbery upon the following indictment:</p> <p>"The jurors for the State aforesaid, upon their oath, present that Frank Perley and James H. Goodwin of Bangor, in the county of Penobscot, on the thirtieth day of August, in the year of our Lord, one thousand eight hundred and ninety-two, at Bangor, in the county of Penobscot, aforesaid, in and upon one John H. Emerson feloniously an assault did make and him, the said John H. Emerson did then feloniously put in fear and with force and violence, did then feloniously steal, take and carry away from the person of him, the said John H. Emerson, certain money of the said John H. Emerson, and. one silver watch and one watch chain of the goods and chattels of the said John H. Emerson, against the peace of said State, and contrary to the statute in such case made and provided.”</p> <p>The defendants moved in arrest of judgment as follows :</p> <p>"And now after a general verdict of guilty, and before judgment in the above entitled cause, the respondents, the said Frank Perley and James H. Goodwin, come and move the court that judgment in said cause be arrested and that they be discharged and allowed to go without day for the following reasons, to wit:</p> <p>"First. Because said indictment does not, with sufficient certainty, precision and particularity, allege and set forth any crime.</p> <p>"Second. Because said indictment does not, with sufficient certainty, precision and particularity, set forth and allege the crime intended to be charged by the grand jury, and which the jury who tried the case meant to convict the respondents of, to wit, robbery.</p> <p>"Third. Because the money and goods and chattels alleged in said indictment to have been stolen, taken and carried away from the person of John H. Emerson are not set forth and described with sufficient certainty, precision and particularity.</p> <p>"Fourth. Because the money alleged in said indictment to have been stolen from the person of said John H. Emerson is not described at all, and there is no allegation of how much it amounted to, or that it had any value, and there is no allegation in the aforesaid indictment that the watch and chain, the only other property named in the indictment, was of any value whatever, and no reason is stated in said indictment why the said money is not therein described or its amount given, or why its value is not stated, if it had value ; nor is any reason given in said indictment why, if said watch and chain had value that value is not stated therein.</p> <p>" Fifth. Because said indictment is in other respects informal, insufficient and not valid.”</p> <p>The motion was overruled by the court and an exception was taken thereto.</p> <p>The defendants also took exceptions as follows :</p> <p>"The judge presiding did not inform the jury that they could find a verdict against the respondents for any offense less than robbery and no request to that effect was made by counsel and no allusion was made to the point by counsel on either side during the trial. And no contention was set up at the trial that the respondents might be guilty of any less offense, if guilty at all. All that was said by the judge on that subject is embraced in the following extract from the charge: 'The two respondents are accused by the indictment of the crime of robbery. The punishment for the crime may be as high as imprisonment for life, and it may be as low as any term of years, ■which might be two.’ On the subject of value of property taken the judge made the following remarks : 'It is not necessary for the government to prove that all the articles alleged were taken from him in order to constitute robbery. It is sufficient if they were all taken, or any of them were taken, or any part of them were taken, or the least of them were taken. No matter how successful or unsuccessful in amount of property taken if any was taken from the complainant’s person by violence, feloniously, the offense is established a,s having been committed by somebody.’</p> <p>" To the order of the court overruling the motion and to the above instructions of the judge and to his omission to instruct the jury that they could find the respondents guilty of any offense less than robbery, the respondents except by their attorneys.”</p> <p>Indictment must stand or fall at the common law, because we have no statute like 14 and 15 Viet, under which the precedent is taken in this case. 2 Arch. Crim. Pr. and PI. 521.</p> <p>Counsel also cited: 2 Russell, Crimes, 1st Am. Ed. pp. *988, *989 ; 1 Whar. Prec. 6th Ed. p. 411; Davis Crim. Proc. p. 704; 3 Chitty Crim. Law, (Riley Ed.) p. 566 ; State v. Dawes, lb Maine, 51; State v. Gerrish, 78 Maine, 20; Com. v. Oahill, 12 Allen, 540.</p>

On report. This was an action of assumpsit to recover the sum of $2000, by the plaintiff who is the widow of Harry J. Jeane, and the beneficiary named in his application for membership and insurance in Lakeside Lodge No. 43, located at Jefferson, Knox county, a subordinate lodge of the defendant association. The application is dated December 25, 1890, on which day, he was initiated a member of the lodge, and the applicant died October 27, 1891.

<p> Fraudulent Conveyances. Subsequent Creditors. Notice. Stat. 13, Eliz. c. 5. </p> <p>Where a conveyance though absolute in form, but for a consideration grossly inadequate, the grantor retaining a valuable interest in the property, is made with the intent to hinder and delay creditors, and this intent is participated in by both parties, such conveyance is void, not only against existing but against subsequent creditors and bona fide purchasers, whether they have notice of such conveyance or not.</p> <p>A mortgagee is a purchaser.</p>

<p>On REPORT.</p> <p>The case appears in the opinion.</p> <p>The effect of redemption from a mortgage is simply to extinguish the mortgage. Thomas Frisbee did not receive an assignment of the foreclosed mortgage, only a release from the mortgage, in accordance with the decree of the court granting redemption. This was all he was entitled to. Lamb v. Montague, 112 Mass. 352: Lanison v. Drake, 105 Mass. 564; Union Inst. <&c., v. Hill, 139 Mass. 47.</p> <p>The statute of limitations does not reach this case. The lapse of twenty years furnishes a presumption of foreclosure, but it is only a presumption, and it is open to proof that no foreclosure was ever consummated. McPherson v. Hayward, 81 Maine, 329; Knight v. McKinney, 84 Maine, 107; Story Equity, § 1157.</p> <p>It is admitted that the Lowry mortgage and note are still held by defendants, and have never been paid or foreclosed.</p> <p>Defendants claim by adverse possession for twenty years. The burden is upon them to establish this title. Am. and Eng. Ency., Yol. 1, p. 303, and cases cited. And the proof must be clear and positive. Ib. p. 305. The presumption is that Thomas Frisbee took possession May 9, 1862, legally, and not tor-' tiously ; that he entered by virtue of his mortgage, and not as a disseizor. 3 Wash. R. P. 3d Ed. p. 129 ; Means v. Whiles, 12 Met. 356, and cases; Rung v. Shoneberger, 2 Watts, 23 (26 Am. Dec. p. 102, and note).</p> <p>Where a party is in actual possession and has a right to possession under a legal title which is not adverse, but claims possession uuder another title which is adverse, the possession will not in law be deemed to be adverse. 2 Stark. 657, (5th Ed.) JSTichols v. Reynolds, 1 R. I., 30.</p> <p>The last case ivas one in which the parties in possession were mortgagees, and were privy in estate with plaintiffs, and their possession under the mortgage was held not to be adverse. In order to make a possession taken under a legal title adverse, some decisive act or declaration is necessary. Martin v. Jackson, 27 Penn. St. 504; McMasters v. Bell, 2 Penn. St. 183 ; Bannon v. Brandon, 34 Penn. St. 263 ; McPherson v. Hayward, 81 Maine, 329; Silva v. Wimpenny, 136 Mass. 253; Jackson v. Lunn, 3 Johns. Cas. 109 ; Jackson v. Parker, 3 Johns. Cas. 124 ; McOlasky v. Barr, (Ohio,) 42 Fed. Rep. 609.</p>

<p>Towns. Municipal Officers. Way. Cess-Pool. JR. 8., c. 3, § lé.</p> <p>The statute provides for the election or appointment of road commissioners, or surveyors of highways, whose duty it is to open and keep in repair public ways legally established within their districts.</p> <p>Municipal officers are not clothed with general powers nor are they the general agents of the municipality for which they act.</p> <p>Where municipal officers assume the construction or repair of highways or streets, they act, in the absence of any express statute or direction in behalf of the municipality, as public officers; and not as agents or servants of the town; and for such acts the town is not liable.</p> <p>Held, in this case, that the municipal officers were not acting as a tribunal in relation to the location or constru ction of a common sewer, but were repairing the street and making provisions for the disposition of surface water in building the catch-basin and connecting it, by permission with the plaintiff’s private drain.</p>

On report. The first action was upon two promissory notes given by the defendants, November 10, 1891, on which day the plaintiffs bargained and delivered to the defendants a boiler, engine, belting and other fixtures at an agreed price of eleven hundred and thirty dollars, and took their three notes therefor payable in four, eight and twelve months. On the same day the plaintiffs received from the defendants the following agreement: Boston, Mass., Nov. 10th, 1891.

On exceptions. This was an action of assumpsit to recover the price of certain lumber alleged to have been sold and delivered to the defendant through her husband. A nonsuit was entered on the ground that the husband’s agency was not established sufficiently to warrant a verdict for the plaintiffs.

On exceptions. This was a case arising upon objections to the proof of debt of Morey & Company, filed in the estate of Denison Paper Manufacturing Company, Insolvent. The petitions to have the proof of debt re-examined were filed by Charles K. Milliken, George C. Wing and others. They alleged that Morey & Company had received an unlawful preference from the insolvent debtor.

On exceptions. This was an appeal from the Court of Insolvency, for the County of Cumberland and ivas heard in this court by the presiding justice without a jury.

On report. This was an action of assumpsit, under E. S., c. 92, § 17, for the annual compensation for the flowage of the plaintiff’s land, as awarded in accordance with the preceding provisions of the same chapter, at the rate of twelve dollars per year, for twenty years next prior to the date of the writ, and interest thereon, amounting to $403.20. The writ is dated. August 1, 1892.

On exceptions. The defendants’ demurrer to the plaintiffs’ declaration having been overruled in the court below, they brought the case into this court on exceptions. The opinion states the ease. Revised kStatutes, c. 46, § 46, defines who may be a plaintiff in a proper suit of this nature ; and § 47 prescribes the method which such plaintiff may follow.

<p>Taxes. Collateral Inheritance. Constitutional Law. Mxemptions. U. 8. Const. 14th Amendt. Maine Const. Art. I, § § .7, 6, 21, Art. IX, § § 7, 8, X. T. Stat. 1885, o. 4.83, Maine Stat. 1893, c. 146.</p> <p>Section 1 of chapter 146 of the Statutes of 1893, imposing a tax on collateral inheritances, is not a tax upon real and personal estate, within the meaning of Article IX, § 8, of the Constitution of Maine, but is an excise, clearly within the constitutional powers of the Legislature to impose.</p> <p>The act is not in conflict with the 14th amendment to the' constitution of the United States.</p> <p>The five hundred dollar exemption, provided in section 1 of the act, is not one exemption from the corpus of the estate but is an exemption of that sum from each and every legacy or share given or descending to persons within the classes subject to the excise.</p>

On exceptions. The defendant took exceptions to the ruling of the court beloiv in refusing to allow her costs as the prevailing party.

On exceptions. This was an action of assumpsit commenced by writ dated August 20, 1891, to recover a balance of $58.33, claimed to be due the plaintiff under a contract, the material parts of which, with other facts, are stated in the opinion.

<p>On exceptions.</p> <p>This was an action of trespass, q. c. in which the defendants-justified under two deeds of the locus from the State treasurer upon a sale for the non-payment of taxes to Oliver Moulton, one of the defendants. The action was referred to referees, who made a report in the alternative based upon the validity of the deeds, and in their report referred the decision of that question to the court.</p> <p>The presiding justice found and held, as matter of law, that the deeds were insufficient to pass the title to the locus in quo to said Moulton, under whose directions the trespass was committed, and therefore no defense to the action.</p> <p>To this ruling the defendants excepted.</p>

<p> Prom. Note. When and hov] payable. TrucMng. </p> <p>The legal construction of a note payable twenty-four months after date, in monthly payments, without interest, payable in trucking, is, that the monthly payments are to be made in the consecutive months immediately following the date of the note, so that the whole amount will be paid in twenty-four months after its dato.</p> <p>Held, that if the payee furnished the trucking to be done in such months, and the defendants neglected or refused to do it, an action may be maintained upon the note for such monthly payments, before the expiration of twenty-four months from its date.</p>

On report. This was a bill in equity, heard on bill, demurrer of the defendants, Kingsbury Donnell, and the two insurance companies, and answers of the other defendants, and testimony. The case appears in the opinion.

On exceptions. To a seizure process against the defendant, and from whom intoxicating liquors were taken previously without a warrant, he filed a demurrer alleging : (1.) The said process is a seizure process and not a search and seizure process as required by law'.

On report. This was an action of debt to recover State, county and city taxes assessed against the defendant for the year 1885, as an inhabitant of the city of Kockland. The defendant contended that the city tax was never raised by a vote of the city council; or if so, that the resolve was never presented to or approved by the mayor as required by its charter, being c. 482 of Acts of 1885.

<p>On report.</p> <p>This ivas an action against the city of Biddeford, for breaking and entering the plaintiff’s close and building a drain or sewer. It has been before the law court once on demurrer, and the demurrer was overruled, the rescript dated November 7, 1892, being as follows : "The demurrer admits the allegations in the declaration to be true. It charges the defendant with doing, by its workmen, servants and agents acts which for aught that appears therein might have been done in the assertion of some supposed corporate right, and for the doing of which under the immediate direction of the city government, the defendant corporation might properly be held responsible, according to the doctrine laid down in Cumb. & Oxf. Canal Co. v. Portland, 62 Maine, 504; Lynde v. Rockland, 66 Maine, 309, 315.</p> <p>"But while the acts alleged are prima facie, acts of trespass, still if upon trial the acts alleged should prove to have been done by public officers of the city, in the line of their duty for the public benefit or use, the city in the absence of any directions to them would not be liable.</p> <p>"The demurrer having been filed the first term, and overruled, the defendant may plead anew in accordance with the provisions of E. S., c. 82, § 23.”</p> <p>The case appears in the opinion.</p> <p>A sewer or drain is the property of the city. Child v. Boston, 4 Allen, 41. Built partly, at least, for the private gain and emolument of the city. City liable for acts of Shaw in same manner as a private corporation would be. Barling v. Bangor, 68 Maine, 108 ; Thayer v. Boston, 19 Pick. 516, and cases.</p> <p>Where the officers or agents of a municipal corporation, under its authority or direction, take possession of private property without complying with the provisions of its charter or the statute, the corporation is liable in damages therefor. 2 Dill. Mun. Corp. § 791.</p> <p>The city paid for the sewer, as is admitted, and thus ratified the acts of Mr. Shaw as street commissioner. Green v. Portland, 32 Maine, 433 ; Stetson v. Faxon, 19 Pick. 154; Hill v. Boston, 122 Mass. 359; Thayer v. Boston, supra; Baker v. Boston, 12 Pick. 104; Peck v. Ellsworth, 36 Maine, 393; Woodcock v. Calais, 66 Maine, 234; 2 Dill. Mun. Corp. §§ 968, 979, and cases.</p> <p>Duty of constructing a sewer is merely ministerial. City liable for neglect whereby private property is injured. Hill v. Boston, supra; Damages : E. S., c. 16, § 3 ; Hildreth v. Lowell, 11 Gray, 345; Oliver v. Worcester, 102 Mass. 500. Street commissioner not acting as public officer, but as agent of city under ordinance. Hawks v. Charlemont, 107 Mass. 418. City took a fee, and not an easement in the land. Sheridan v. Salem, 148 Mass. 197, and cases. Bulger v. Eden, 82 Maine, 352, p. 358.</p>

On report. This was an action of replevin of stock and fixtures. Both parties claimed under conveyances from Philip F. Morrison. The plaintiif obtained his mortgage July 1, 1889, and the defendant became a purchaser from Morrison’s assignee, May 5, 1891. The mortgage was foreclosed March 9, 1891; sixty days redemption expired May 8, 1891. Date of writ June 3, 1891. Other facts are stated in the opinion.

On exceptions. The defendant having been convicted on a search and seizure process filed the following motion in arrest of judgment: ■' And now after trial and verdict of guilty and before judgment, the said Ulric Chartrand comes, etc., and says that judgment ought not to be rendered against him, because he says that said- complaint and the warrant annexed thereto, and the matters therein alleged, in the manner-and form in which they are therein stated, are not sufficient in…

<p> Insolvency. Dissolution of Attachment. Equity. </p> <p>An attaching creditor will not be allowed to maintain a bill in equity to defeat proceedings in insolvency, properly begun, within four months of the attachment of the debtor’s property, when the purpose will defeat an equitable division of an insolvent’s estate.</p>

<p> Bailroad. Negligence. Master and Servant. </p> <p>One who has an interest in the work to be performed either as consignee or servant of a consignee, or in any other capacity, and for his own convenience, or to facilitate or expedite his own work, assists the servants of another, at their request or with their consent, is not thereby deprived of his right to be protected against the carelessness of the other’s servants.</p> <p>The court distinguishes between such a case and that of one who has no interest in the work to be performed, a mere by-stander, who voluntarily assists the servants of another, either with or without the latter’s request, doing so at his own risk.</p> <p>In the latter case the master is not responsible, in the former he will be.</p> <p>The court apply this principle of liability of the master for injuries thus sustained by the plaintiff, where it appeared that the defendant corporation, while engaged in transporting earth by a gravel train for its own use, undertook to deliver earth from cars in the same train for the use of a third party; the crew in charge of the gravel train having requested the men employed by such third party to assist in dumping the earth out of the cars, and while so engaged one of the latter’s crew was injured by a defective car that was improperly loaded. Peters, C. J., Libbey, and Haskell, JJ., dissenting.</p> <p>Held, that the crew in charge of the gravel train had authority to make such request and give such consent as would authorize the servants of the consignee to remove, or assist in the removal of earth, from the cars. Peters, C. J., Libbey, and Haskell, JJ., dissenting.</p> <p>The following instructions to the jury were sustained: One who voluntarily assists the servants of another cannot recover from the master for an injury caused by the negligence or misconduct of such servant; that one cannot by his officious conduct impose upon the master a greater duty than that which he owes to his own hired servants; that care must be taken, however, to distinguish a mere volunteer from one who assists the servant of another, at their request, for the purpose of expediting his own business or that of his master; for, in such a case, he will not stand in the relation of a fellow-servant to them, and, if injured by their negligence, their master will be responsible; that if the plaintiff (Thomas Welch), consented to assist in dumping the cars, at the request of the railroad crew in charge of the train, to expedite or facilitate the work which he was engaged in performing, . . . he could not be regarded as such an intermeddler or volunteer as to preclude him from a recovery on that ground, provided the alleged negligence and injury were made out in other respects; nor could he be regarded as a fellow-servant with the employees of the railroad, so as to preclude him from a recovery on that ground. Peteks, O. J., Libbey, and Haskell, JJ., dissenting.</p> <p>Upon a motion to set aside a verdict for excessive damages, Held, that if under our statute no more than $5000, is recoverable for the negligent killing of a skilled workman, capable of earning a large income, when his death is immediate, a verdict of $8000, for the death of an unskilled workman, capable of earning only a small income, must be regarded as clearly excessive, though, as in this case, he survived liis injuries some six or seven months.</p>

Bill in equity, heard on bill and answers, brought by the trustees under the will of John B. Brown, of Portland. The cause was heard before Mr. Justice Haskell, who filed the following written opinion, that is now published with the opinions of the full court because of its intrinsic merit and the importance of the questions discussed and decided. The case appears in the opinion. Symonds, Snow and .