Volume 87 — Maine Reports

On exceptions. This was an action of replevin, begun August 23, 1892, to recover two settees manufactured by the plaintiff for one Coburn, proprietor of the Penobscot Exchange, Bangor, and delivered at his hotel in the spring of 1891.

On exceptions. This was an action of trespass, q. c., to which the defendant pleaded the general issue and filed the following brief statement : And for brief statement the defendant says that the place of the alleged trespass is not, and never has been, the property of the plaintiffs, and that they have never been in possession of the same.

<p>On report.</p> <p>These were two actions of trespass, q. c., brought by the assignee of the mortgagee, to recover the value of the crops removed by the defendants after foreclosure begun and possession taken by the plaintiff. The defendants justified as agents of the mortgagor, and the plaintiff claimed that it had acquired possession of the premises and crops through the .foreclosure proceedings of an agent acting under the authority of its treasurer.</p> <p>The facts appear in the opinion.</p> <p>The treasurer of a savings bank, without vote of the trustees, has authority to foreclose a mortgage, and, in any event Butterfield’s entry for the purpose of taking the crops was an act capable of ratification. Entry sufficient to revest the estate. Jenks v. Walton, 64 Maine, 97. As to authority of treasurer to foreclose the mortgage, counsel cited: Wallace v. First Parish of Townsend, 109 Mass. 263 ; Trustees of Smith Charities v. Connolly, 157 Mass. 272 ; Bristol County Savings Bank v. Heavy, 128 Mass. 298 ; Cutís v. York Manf’g Co. 18 Maine, 190. Presumption, in absence of all evidence, Howard v. Hatch, 29 Barb. 297.</p> <p>An entry may be invalid for purpose of foreclosure and still be a lawful entry for the purpose of taking crops or of taking possession for any purpose. Northampton Paper Mills v. Ames, 8 Met. 1; Cook v. Johnson, 121 Mass. 326 ; Perley v. Chase., 79 Maine, 519; Gilman v. Wills, 66 Maine, 273; Jones Mort. §§ 697, 721, and 780: Allen v. Bickmore, 36 Maine, 436.</p> <p>Entering for the express purpose of taking crops is an act capable of ratification and was ratified. Am. Dig. 1893, p. 974, § 232; Planters' Bank v. Sharp, 12 Miss. 75; Am. and Eng. Ency. p. 429, and citations.</p> <p>Ratification: Cook v. Tullis, 18 Wall. 338; Thorndike v. Godfrey, 3 Maine, 429, p. 432; Story Agency, §§ 245, 246 and citations; First Parish in Sutton v. Cole, 3 Pick. 245 ; Whart. Agency, § 80; Richards v. Folsom, 11 Maine, 70; Gibson v. Norway Savings Bank, 69 Maine, p. 579.</p> <p>Counsel argued: (1) That as mortgagee the bank had no right to sue the defendants as mortgagors and therefore cannot recover here, because the plaintiff had no actual possession of the premises, such actual possession being in defendants, with the right to gather the crops which by their cultivation they had raised.</p> <p>(2) That at common law the plaintiff” had no such possession of the premises as gave it a right to maintain an action of trespass, the defendants’ occupancy and rights being such as authorized the acts complained of.</p> <p>(3) That all the necessary preliminary acts, requisite for the prosecution and sustaining of the suits, were all performed by Butterfield without the authority or knowledge of the bank and hence were utterly void and of no effect, the subsequent ratification of the acts by vote of the plaintiff being equally of no force but void and ineffectual and hence no cause of action has ever existed to justify or legalize either of the .suits in question.</p> <p>Counsel cited: Hewes v. Bickford, 49 Maine, 71; Vehue v. Mosher, 76 Maine, 469 ; •Beige v. Robinson, 10 Cush. 99-102 ; Fernald v. Linscott, 6 Maine, 234; Judd v. Try on, 131 Mass. 345; Jarvis v. Albro, 67 Maine, 310; Chase v. Marston, 66 Maine, 271; Long v. Wade, 70 Maine, 358; JSToyes v. Rich, 52 Maine, 115 ; Mayo v. Fletcher, 14 Pick. 525-532; Russell v. Allen, 2 Allen, 44 ; Perley v. Chase, 79 Maine, 519, p. 521: Teal v. Walker, 111 IT. S. 249-50 ; Judkins v. Woodman, 81 Maine, 355; Bennett v. Conant, 10 Cush. 163; Gilman v. Wells, 66 Maine, 273 ; Lunt v. Brown, 13 Maine, 236-9 ; 4 Kent. Com. 119 ; Treat v. Peirce, 53 Maine, 71; Clark v. Peabody, 22 Maine, 500 ; Fiske v. Holmes, 41 Maine, 441; Jones v. Bowler, 74 Maine, 310; Pease v. Benson, 28 Maine, 333-353 ; Chamberlain v. Gardiner, 38 Maine, 548-552 ; Northampton v. Ames, 8 Met. 1.</p>

<p> Trover. Trespass. Trees. Damages. </p> <p>In a,n action of trover against a purchaser of sleepers made from trees cut on plaintiff’s land by a trespasser, and by him manufactured into sleepers, the measure of damages is the value of the sleepers at the time of their conversion by the purchaser.</p> <p>No deduction therefrom is to be made for the increased value put upon the trees by the labor of the'trespasser before conversion by the purchaser.</p>

<p>Pauper. Residence. Acts. Declarations. Evidence. R. S., c. 24, § 1, cl. VI.</p> <p>Upon the question of a person’s intention as to change of residence when leaving his town, his acts in breaking up house-keeping and storing his household goods two or three weeks previous to such leaving are competent evidence.</p> <p>The declarations of such person during such acts are competent evidence upon the same question.</p>

<p>Agreed statement.</p> <p>Assumpsit for money had and received. Date of writ, February 6, 1892.</p> <p>Plea : The general issue with brief statement that the defendant is and has been since the second Tuesday of March, 1889, the legally appointed guardian of the plaintiff, and has during all said time acted as such, and that whatever moneys of the plaintiff he has received have been received by him as such guardian.</p> <p>The case was submitted to the Law Court upon the following-agreed statement:</p> <p>At a regular term of the Probate Court of the county of Waldo, held at Belfast within and for said county, on the second Tuesday of March, 1889, on the petition ofthe selectmen of the town of Lincolnville in said county, of which, said town the plaintiff was a resident at the date of said petition and also on the date of the holding of said term, a decree of the Judge of Probate for said county of Waldo was made and passed appointing the defendant guardian of the plaintiff, an adult person, from which said decree no appeal was taken and said decree has never been annulled or reversed. The defendant accepted said trust and gave bond as required by law, and letters of guardianship in due form were granted and issued to him by said Judge of Probate on said second Tuesday of March, 1889, and the defendant has never been removed from said trust and has ever since acted in said capacity.</p> <p>At the date of said petition and on said second Tuesday of March, 1889, the plaintiff was and ever since has been a pensioner of the United States, his pension being payable by the United States Pension Agent at Augusta, Maine. The plaintiff was not present nor represented in the Probate Court at the hearing on the petition and the adjudication of the Judge of Probate thereon.</p> <p>The petition of said selectmen, the notice thereto annexed, the return of the officer thereon, and the decree of the Judge of Probate thereon, were made part of the case.</p> <p>Since the appointment of the defendant, the United States pension payable to the plaintiff has been paid in quarterly payments by the United States Pension Agent at Augusta, Maine, to the defendant as guardian of the plaintiff, and the same has been received by the defendant in his said capacity.</p> <p>The action was brought to recover the pension money so paid to and received by the defendant.</p> <p>If the action was maintainable, judgment was to be for the plaintiff, and the damages are to be determined at nisi prius; otherwise judgment for the defendant.</p> <p>(Petition.)</p> <p>"To the Honorable Judge of the Probate Court next to be held</p> <p>at Belfast, within and for the county of Waldo, on the second</p> <p>Tuesday of March, A. D., 1889.</p> <p>"George W. Young and Harrison Leadbetter, selectmen of the town of Lincolnville, respectfully represent, that Stephen E. Young of Lincolnville, in said county, is an indolent and intemperate man, and who spends and wastes his estate so much that he exposes himself and family to want and suffering and his said town to expense by reason of said indolence and intemperate habits ho is incompetent to manage his own estate or to protect his rights, and pray that Benjamin E. Young may be appointed guardian to said person.</p> <p>"Dated this second day of February, A. D., 1889.</p> <p>George W. Young,</p> <p>Harrison, Leadbetter,</p> <p>Selectmen of Lincolnville.”</p> <p>(Notice.)</p> <p>" Waldo, ss.— On the foregoing petition, you, the said Stephen E. Young, are hereby cited to appear at the Probate Court to be held at Belfast, within and for said county, on the second Tuesday of March, A. D., 1889, at ten o’clock in the forenoon, and show cause, if any you have, why the prayer of said petitioners should not be granted.</p> <p>George W. Young,</p> <p>Harrison Leadbetter,</p> <p>Selectmen of Lincolnville.”</p> <p>(Service.)</p> <p>"Waldo, ss. February 4, A. D., 1889. I this day gave in hand to the within named Stephen E. Young, a true and attested copy of the within petition and order thereon.</p> <p>Benjamin F. Young, Deputy SherifF.”</p> <p>(Decree.)</p> <p>"State of Maine, Probate Court, Waldo County, second Tuesday of March, A. D., 1889.</p> <p>" On the foregoing petition personal notice of the time and place of hearing having been given according to law, it is decreed that Stephen E. Young is an indolent and intemperate man, who wastes and spends his estate so much that he exposes himself and family to want and suffering and said town to expense, and it is also decreed, that Benjamin F. Young, of Lincolnville, in said county, be appointed guardian to said Stephen E. Young, and that letters of guardianship issue to him, he first giving-bonds in the sum of three hundred dollars.</p> <p>George E.- Johnson, Judge.”</p> <p>A decree appointing a guardian, on allegations which do not state a cause for which a guardian may be appointed, is void, and may be so held in any collateral proceedings by plea and proof. Peters v. Peters, 8 Cush. 543 ; Foiole v. Coe, 68 Maine, 248; Qoolidge v. Allen, 82 Maine, 23.</p> <p>To place a citizen under guardianship the records must show, by distinct allegations, and not by implication or inference, that he falls within one of the clauses named in the statute, for whom a guardian may be appointed. Overseers v. Oullijer, 49 Maine, 360.</p> <p>The notice to the plaintiff of the proceedings to appoint a guardian for him was not sufficient. A copy of the petition of the selectmen was all that he had; he was not present at the return term of the petition, and the judge made no further order of notice, but proceeded to adjudicate the case in his absence, and without further notice. He should have given him further notice. E. S., c. 67, § 5.</p> <p>On the matter of notice to a person for whom a guardian is sought the statute is plain. First, for a party whom the municipal officers certify has been committed to the insane asylum, &c., without further action or notice to the party. Second, to insane married women, after personal notice, &c., without inquisition. Third, in all other cases where the municipal officers, &c., are applicants. If they have given at least fourteen days’ notice to such person the judge may adjudicate thereon without further inquisition, if such person is present, or on such further notice, if any, as he thinks reasonable. The necessity of his presence at the hearing is to take the place of an inquisition. It seems to be for the purpose that no man shall be placed under a guardian without a personal observation by the tribunal to adjudicate the necessity for a guardian.</p>

<p> Negligence. Bailroad. Yard-Master. Line of Duty. Bemote and Proximate■ Gause. Practice. Exceptions. </p> <p>The plaintiff recovered a verdict for personal injuries caused by the negligence-of the defendant’s yard-master in breaking off a car stake- that supported a load of lumber, thus causing several heavy joists to fall upon him from the top of the car.</p> <p>Held; That to maintain the action, the plaintiff must establish three propositions : (1,) That in breaking down the stake the yard-master performed an act which an ordinarily careful and prudent person in the same relation would not have done: (2,) That the act was done in the course of his employment and in the line of his duty; (3,) That there was no contributory negligence on the part of the plaintiff.</p> <p>The evidence relating to the yard-master’s conduct was in dispute and therefore presented an issue of fact for the jury. In this case, the finding of the jury upon this point was not so palpably wrong that no jury of fair-minded and impartial men could reach such a conclusion.</p> <p>Held,; That the question whether the yard-master was acting within the scope of his employment cannot properly be determined by sole reference to the inquiry whether the car had been reported as ready for shipment. The nature of the employment, the character of the service required, the character of the act done, the circumstances under which it was done, and the ends and purposes sought to be attained, were all material considerations and formed the real test of liability.</p> <p>Also, That the plaintiff’s negligence with respect to his manner of loading the lumber did not proximately contribute to produce the injury.</p> <p>The plaintiff’s conduct in this respect was not a part of the immediate transaction which caused the injury, but a prior distinct and independent transaction. It may have afforded the occasion or opportunity of the yard-master’s active agency in breaking off the stake, but it formed no part of the direct and efficient cause of the injury. Under such circumstances the plaintiff’s conduct cannot legally be deemed a contributory cause of the injury.</p> <p>The defendant excepted to certain remarks made by counsel for the plaintiff during the charge of the presiding justice. Held; That the irregularity as an interruption was a matter between the court and counsel, and was not prejudicial to the defendant, nor open to the defendant on exceptions.</p> <p>The practice relating to the proper method of presenting exceptions to the law court prescribed in McKown v. Poioers, 86 Maine, 291, affirmed.</p> <p>O'Brien v. 3Lc&linchy, 68 Maine, 552; Laslcy v. Canadian Pacific By. Go., 83 Maine, 461, affirmed.</p>

<p> Will. Life Insurance. Deficiency of assets. </p> <p>Upon a bill in equity for construction of a will, it appeared that the testator gave various pecuniary legacies “ to be paid out of my [his] personal estate.” His personal estate proved insufficient to pay the legacies. He had two policies of insurance upon his life; one “payable to his legal representatives for his heirs and assigns;” the other “payable to his executors, administrators or assigns.” No reference to these policies is contained in the will. Testator, at his death, left a daughter, but no wife. There had been no assignment of either policy, and both have been paid to the executors.</p> <p>Held ; That the phrase in the will “ to be paid out of my personal estate” cannot be construed to include the proceeds of any of the insurance money; and that there is no latent ambiguity in the term “my personal estate” which requires or permits parol evidence to vary, enlarge or explain its meaning.</p> <p>The policy payable to testator’s “ legal representatives for his heirs and assigns,” does not fall within the provisions of R. S., c. 75, § 10, which authorizes a disposition by will, under certain limitations, of money received from insurance on life. The rights of the parties are the same as if the policy was in terms payable to his daughter, the sole heir. The proceeds of this policy are held by the executors in trust for her, and are by them to be paid to her in full, with all interest received thereon by the executors, and without any deduction, except such amount, if any, as the estate of the testator may have necessarily expended in collecting the insurance.</p> <p>The other policy, payable to testator’s “ executors, administrators or assigns” is within the provisions of the statute. It is not disposed of by testator’s will. An amount equal to the premiums paid thereon within three years prior to the death of the testator, with interest thereon, and expense of collection, is to be retained by the executors and be treated as part of the testator’s personal estate, to meet the calls in his will. The balance, with interest received by the executors, must be paid to the sole heir, the daughter.</p> <p>Under a specific devise of land the devisee takes the absolute title, subject only to be divested if the other estate of the testator, real and personal, prove insufficient to pay debts, funeral charges and expenses of administration.</p> <p>If such deficiency shall arise, that deficiency is to be supplied from the devised land unless otherwise obtained.</p> <p>If it becomes necessary to sell the whole lot, and the proceeds of the sale are not wholly exhausted in payment of the debts and expenses, the surplus, being the proceeds of devisee’s land, belongs to him, and cannot be used to fulfill the bequests in the will, but must be paid to the devisee.</p>

<p>Indictment. Pleading. Duplicity. Evidence. P. S'., c. 131, §§ 4, 12.</p> <p>Duplicity in an indictment is cured by a special verdict of guilty on one offense only.</p> <p>To an indictment containing two counts, the first charging the defendant with an assault with intent to maim, and an assault with intent to kill, and the second count charging an assault and battery, the jury returned a special verdict, “guilty of assault with intent to kill.”</p> <p>Held; upon motion in arrest of judgment, that the second count does not support the verdict; a nolle prosequi of the intent to kill not having been entered, no judgment can be rendered on that count.</p> <p>Also, That the first count is double in that it charges two substantive crimes, viz: assault with intent to maim and assault with intent to kill; and that the special verdict, “guilty of assault with intent to kill,” operates as an acquittal of all else charged in the indictment and cures the duplicity.</p> <p>A witness for the prosecution, a brother of the injured party, denied that he held defendant’s horse by the bit at the time of the assault. The defendant on his cross-examination testified that other parties had told him that the witness and his brother had made different statements about it, and thereupon he offered to give the statements or conversation in full upon resuming his direct examination. Held, 'that the evidence was rightfully excluded.</p> <p>State v. Palmer, 35 Maine, 13; State v. Dolan, 69 Maine, 573; State v. Smith, 61 Maine, 386, criticised; State v. Payson, 37 Maine, 361, approved.</p>

The plaintiff having obtained a verdict of the jury in this action tried in the Superior Court, for Kennebec county, the defendant took exceptions which are stated in the opinion.

<p>On exceptions.</p> <p>This was a bill in equity to redeem a mortgage of real estate, inserted in a writ of attachment dated July 6, 1891, returnable at the following September term of this court.</p> <p>The bill alleges the giving of the mortgage October 23, 1886, by the plaintiff, Wm. M. E. Brown, to the defendant, Lawton, to secure certain notes of his and provided for a foreclosure in one year; also a quitclaim of the premises to the co-plaintiff, William B. Brown, by deeds dated August 17, 1887, and August 7, 1889. It next alleges a foreclosure of the mortgage by the defendant, Lawton, by notice in a newspaper July 18, 1889, and proceeds to allege as follows :</p> <p>"And your orators say that the said Wm. M. E. Brown and' Wm. B. Brown, being the owners of the equity of redemption in the property under and according to the mortgage hereinbefore mentioned, and hereunto annexed, and by reason of the conveyances hereinbefore described, and being allowed by law one year from the date of the first publication of notice of foreclosure, to wit: one year from the 18th day of July, A. D., 1889, in which to redeem said property, the said Wm. M. E. Brown by and with the consent and authority of the said Wm. B. Brown, did, although in feeble health, on Thursday the 17th day of July, A. D., 1890, go to the house of said Lawton, in said Skowhegan, and in which said Lawton was living, but that said Lawton was not at home, nor could the said Wm. M. E. Brown by diligent search find him anywhere; that on the next day, Friday, July 18th, 1890, the said Wm. M. E. Brown did .go twice to the house of said Lawton ; the first time he was not in, the second time he found him in, told him his business and asked said Lawton where the notes and mortgage were and the amount due. Lawton replied that he had the notes and that they amounted to about $350. The said Wm. M. E. Brown then asked him if that included the costs of foreclosure, and said Lawton replied that he supposed so. The said Wm. M. E. Brown then told him that he was prepared to pay the money and asked him if he should pay it at the Second National Bank or at Merrill & Coffin’s office. Lawton replied that he could pay it at his house as he had the notes. The said Wm. M. E. Brown then said that he was not feeling well, that he was very feeble and did not like to go down to the bank unless necessary, and he asked said Lawton, if it would be all right if he should pay it the next day, and Lawton replied, 'I shall be at home to-morrow and it will be all right -whether you pay it to-morrow or to-day.’</p> <p>"And your orators say that, relying upon this waiver and promise of the said Lawton, the said Wm. M. E. Brown went away; and on the next day the said Wm. M. E. Brown went according to the agreement made with said Lawton, to said Lawton’s house to pay him the money and redeem the property and meeting said Lawton upon the street near his, the said Lawton’s house, he told him that he had come to pay him the money, and put his hand in his pocket to take out his money, whereupon said Lawton cried out, 'you need not make me a tender, you needn’t take out your money for I will not take a cent from you’ and when said Brown asked him why, said Lawton replied, 'The mortgage run otf yesterday and I will not take a cent of money from you until you pay the note I sued you and Blunt for, and I will have no talk with you ’ and went into the house. And afterwards, on the same day, the said Wm. M. E. Brown and the said Wm. B. Brown went to the house of the said Lawton to pay the mortgage or to tender the money, but said Lawton was not at home, nor could they find him anywhere.</p> <p>"And your orators further say that on the next Monday, to wit, July 21st, 1890, they went to the house of the said Lawton and the said Wm. B. Brown made said Lawton a good and lawful tender of $355 and demanded the mortgage, and that said Lawton refused to accept the money or to give up the mortgage or to have any talk with the said Browns: and that said Lawton has refused to give up the mortgage or to do anything in the premises from that time until the present.</p> <p>"And your orators aver that they are and have been always ready and willing to pay the amount due upon said mortgage and notes, and that they are now ready to bring the same into court whatever your Honors shall find to be justly and equitably due upon said mortgage and notes secured thereby and to do any and all other things that your Honors may decree that your orators should do in the premises.”</p> <p>The defendant demurred to the bill and assigned the following causes of demurrer:</p> <p>. 1. The plaintiff has not stated in said bill of complaint, any case within the provisions of the statutes of Maine which provide for, and regulate the right of redemption of mortgages of real estate.</p> <p>2. The bill should have been brought within one year after the first publication of the notice of foreclosure ; or, if the time was extended one day by the defendant, as alleged in the bill, then within such extended time, or it is too late. This was not done.</p> <p>3. The allegations in the bill of complaint do not state a case within the equity jurisdiction of the court relating to mortgages of real estate.</p> <p>4. By the allegations in said bill of complaint, William M. E. Brown is improperly made a party plaintiff’. Having no interest in the mortgaged property described in said bill of complaint, he can maintain no bill for its redemption.</p> <p>The court ruled, pro forma, sustaining the demurrer and dismissed the bill. The plaintiffs took exception to this ruling and the decree.</p>

<p>Counties. County Commissioners. Elections. County Buildings. Loans. B. S., o. 78, § § 14,17; Stat. 1880, o. 248; Besol. 1880, c. 217.</p> <p>A proposition, submitted by county commissioners to be passed upon by the votei's of their county, to see if such commissioners shall be authorized to construct new county buildings, on a new site therefor, at a cost not to exceed thirty thousand dollars, and be further authorized to hire money on the credit of the county for the purpose of such construction, is not objectionable as covering more than one subject matter or thing; the elements of site, construction, cost and credit are no more than parts of one and the same proposition.</p> <p>A vote of a county, in general terms authorizing its commissioners to hire money on its bonds or notes for public purposes, leaves to the commissioners to determine upon what time and other terms the same shall be issued.</p> <p>It is not objectionable to require voters to cast their ballots, on special questions submitted to them, with only the word “yes” or “no” inscribed thereon; nor objectionable to require that such ballots be received in a ■ separate box specially for the occasion. Such is the usual method and one sanctioned by legislative precedent.</p>

<p>On exceptions.</p> <p>This was a complaint against the respondents for the violation of section 2 of chapter 292 of the laws of 1889, by having in their possession short lobsters.</p> <p>The,case was tried to a jury in the Superior Court, for Cumberland county, on appeal from the Municipal Court for the city of Portland. The lobsters were seized by a fish warden, Cushman, without a warrant.</p> <p>The jury found the respondent, Swett, guilty in manner and form as charged against him in the complaint and found the number of short lobsters in his possession as alleged in the complaint, to be nineteen hundred and twenty-four.</p> <p>The respondent, Charles F. Swett, was the manager of "Swett’s Express” doing business between the cities of Portland, Maine, andBoston, Massachusetts, and the other respondent, Christopher W. Leonard was one of the drivers of the express wagons in Portland.</p> <p>(Complaint.)</p> <p>Cumberland, ss.</p> <p>To the Judge of our Municipal Court for the City of Portland in the County of Cumberland.</p> <p>George E. Cushman on the twenty-sixth day of February in the year of our Lord one thousand eight hundred and ninety-two in behalf of said state, on oath complains, that Charles F. Swett and Christopher W. Leonard of Portland in said county, on the twenty-fifth day of February, A. D., 1892, at said Portland, between the first day of July in the year 1891 and the first day of May, A. D., 1892, to wit: on said twenty-fifth day of February unlawfully did have in their possession nineteen hundred twenty-four lobsters, each of said lobsters then and there being' less than ten and one-half inches in length, said length of each of said lobsters being then and there measured by extending each lobster on the back its natural length, and taking the length of its back measured from the bone of the nose to the end of the bone of the middle flipper of the tail, which said lobsters when caught being shorter than ten and one-half inches in length measured in manner aforesaid, were not then and there liberated alive at their risk and costs, against the peace of said state, and contrary to the form of the statute in such case made and provided.</p> <p>George E. Cushman.</p> <p>The counsel for the defendant requested the court to instruct the jury as follows : „ .</p> <p>That lobsters are a legitimate subject of trade and commerce, and that a common carrier has a right to carry them from place to place and from state to state, under the regulations .of commerce.</p> <p>That the defendant Swett being a common carrier, had a right to the possession of lobsters for the purpose of carriage under the regulations of commerce; and that, if he had no reason to suppose they were lobsters less than ten and one-half inches in length, he had a right to carry them in the ordinary course of his business as a common carrier without inspection.</p> <p>That when Cushman undertook, without legal process, to inspect and break into the barrel, or to take the property, he became a mere trespasser ; and the defendants, under the rule of common law would have been liable to the shippers if they had allowed the officers to take away the lobsters or to break into the barrels.</p> <p>That the defendant Swett as a common carrier would have been liable to the shippers for any damage which he should do by breaking into the barrels within his possession for carriage.</p> <p>That if the jury shall find that the defendant Swett had reason to suppose that the barrels contained lobsters, that even then the duty is not imposed upon him to examine and go through every package to find out whether there are lobsters in it less than ten and a half inches long.</p> <p>That if the jury find that certain of the barrels of lobsters had been placed in the car, they had passed beyond defendant’s control and custody and had gone out of his possession and were not for the purposes of this statute within the possession of the defendant.</p> <p>That if they find that these barrels had been delivered at the freight station of the Boston & Maine Bailroad, it is for them to find as a question of fact whether they had not passed from his custody into the custody of the Boston & Maine Bailroad.</p> <p>That if the jury find that the lobsters testified to in this case, had come into the possession of the defendant Swett as a common carrier for carriage from this state to another, then those lobsters were, within the intention of the law, started in transit and were liable to the rules of interstate commerce.</p> <p>That if they find the lobsters testified to in this case, or any of them, had been committed to the defendant as a common carrier, they were an article of trade, and if they were intended to be carried from this state to another, then they were an article of trade and that commerce in them between the states had already commenced.</p> <p>That so long as Congress has not passed any law to regulate the commerce in lobsters, or allowing the State of Maine to do so, it thereby indicates its will that such commerce shall be free and untrammelled.</p> <p>That under the Constitution of the United States and of this State and under the regulations of the act known as the Interstate Act, the provisions of the act of chapter 292 of the Public Law's of 1889 of the State of Maine are void, so far as they interfere with the duties of a common carrier in the carriage of goods from state to state.</p> <p>That unless the jury shall find beyond a reasonable doubt from the whole testimony in the case, that these respondents knowingly and intentionally had in their possession lobsters less than ten and one-half inches long, they must return a verdict of not guilty.</p> <p>That unless they shall find beyond a reasonable doubt from the whole testimony in the case that the defendants held the lobsters in their possession for other purposes than that of the ordinary purposes of transportation as a common carrier, they must return a verdict of not guilty.</p> <p>The court refused to give these instructions in terms, but did instruct the jury as follows :</p> <p>"These respondents are charged with having in their possession on the twenth-fifth of February last, 1924 lobsters, which measured less than ten and one-half inches m length, measured according to this statute. In other words, the respondents are charged with violating section 2 of chapter 292 of the Laws of 1889, which I will read; 'Itis unlawful to catch, buy or sell, or expose for sale, or possess for any purposes, between the first day of July and the first day of the following May, any lobster less than ten and one-half inches in length, alive or dead, cooked or .uncooked, measured in manner as follows ; taking the length of the back of .the lobster, measured from the bone of the nose to the end of the bone of the middle flipper of the tail, the length .to be taken with the lobster extended on the back its natural length; and any lobsters shorter than the prescribed length when caught, shall be liberated alive at the risk and cost of the parties taking them, .under a penalty of one dollar for each lobster so caught, bought, sold, exposed for sale, or in possession, not so liberated."’</p> <p>"'That is the stiiinte, the violation of which these respondents are charged. It seems from the testimony that the respondent Swett is a part proprietor and the manager of an Express line between this city and the city of Boston, and that the respondent Leonard drives one of his teams. That the respondent Swett is a common carrier and certain duties and obligations therefore rest upon him as a common carrier under the law. A common carrier is obliged to receive all goods with the exception of such as are contraband, offered to it for transportation from place to place. It appears'that on the twenty-fifth day of last February, the respondent Swett through his driver, Leonard, took iuto one of his teams twelve barrels delivered to it on Commercial wharf in this city. There is no question but that these barrels contained lobsters. These barrels of lobsters were then in one sense in the possession of both of these defendants. But bare possession, mere naked passive possession is not sufficient under this statute. The possessor must know in a legal sense that the contraband goods were in his possession or else he would not be guilty of violating this law. Now, while these respondents admit that constructively, in a certain sense, these barrels of lobsters wei’e in their possessioxi, still they deny that in a legal sense that they were in their possession ; that is, that they had such a possession as would render them guilty of violating this statute. It is tx'ue, as claimed by the attorney for the respondent, that if a package is offered to a common carrier for transportation he is not compelled by law to break open the package for the purpose of ascertaining whether or not it contains contraband goods. A law requiring such strictness of examination would be an interference with the rights of shippers that would not be tolerated. If these respondents did not know that the barrels entrusted to them contained lobster’s of some length, that is, if they were not aware that the baxwels contained lobsters at all, even though they wei'e constructively in their possession, then they cannot be found guilty. But while a common carrier is obliged to receive all goods offered him for transportation, he is not obliged to í’eceive ixxto his possession such goods as the law forbids him to receive into his possession. He is not obliged to receive short lobsters for transportation because the law prohibits the possession of them for any purpose. But, gentlemen, I will go a little further, and I instruct you that if a common carrier receives into his possession for transportation or otherwise, lobsters, that is, if he receives barrels which he knows contain lobsters, then he is bound in law to know whether those lobsters are longer or shorter than ten and one-half inches, measured according to the statute ; and if any such lobsters as matter of fact are less than ten and one-half inches in length, then short lobsters are in his' possession within the meaning of the law and he would be guilty of violating this statute.</p> <p>"Now' you apply these principles of law to the testimony in this case, taking up each one of these respondents. If the respondent, Swett, knew when he sent his team to Commercial wharf that it was to receive twelve barrels of lobsters, and as matter of fact it did receive twelve barrels of lobsters, then he •was bound to know’ whether those lobsters were shorter than prescribed by the statute which I have read; he is bound to know it in law, and if any of those lobsters were less than ten and one-half inches in length, measured according to the statute, they were in his possession and you would be justified in finding a vei’dict against him. But if you have a reasonable doubt as to any of these facts he is entitled to the benefit of it and must be acquitted. ”</p> <p>To the foregoing instructions and refusals to instruct the respondent excepted.</p> <p>A legal seizure was not necessary in order to give the court jurisdiction of proceedings against the respondent, however it might have been had proceedings been instituted upon the seizure to obtain a forfeiture of the lobsters. This case is not analogous to Guptill v. Richardson, 62 Maine, 257, 265, but falls within the principle applied in Com. v. Dana, 2 Met. 329.</p> <p>Whether or not the law under discussion is constitutional as aftecting lobsters brought into this state by a common carrier does not arise upon the facts in the present case. The statute may be constitutional as applied to one state of facts, and unconstitutional as to others. Tier nan v. Tinker, 102 U. S. 123, 126 ; Leisy v. Hardin, 135 U. S. 100; In re Tahrer, 140 U. S. 562-4; Hall v. He Cuir, 95 U. S. 485.</p> <p>A state has the authority to regulate the fisheries within its territorial tide-waters. McCready v. Virginia, 94 U. S. 391, 394; Com. v. Manchester, 152 Mass. 230, 242 ; Massachusetts v. Manchester, 139 XT. S. 240, 262; Corfield v. Coryell, 4 Wash. C. C. 371; Kidd v. Pearson, 128 XJ. S. 21, 22; Smith v. Maryland, 18 How. 71, 74. Dunham v. Lamphere, 3 Gray, 268 ; Moulton v. Libby, 37 Maine, 472, 494: Phelps v. Tacey, 60 N. Y. 10.</p> <p>As an incident to the right to regulate its fisheries, a state has the power to adopt enactments to prevent the unseasonable taking offish, including shell-fish, and to render such legislation effective by suitable penalties. Corfield v. Coryell, 4 Wash. C. C. 380; Smith v. Maryland, 18 How. 74; Gibbons v. Ogden, 9 Wheat. 203, 204; Patterson v. Kentucky, 97 U. S. 504.</p> <p>The intent of the statute under consideration is to protect lobsters and prevent their unreasonable destruction. Smith v. Craig, 80 Maine, 88.</p> <p>Legislation of the character mentioned is not in conflict with the interstate commerce provision of the Federal Constitution. Corfield v. Coryell, 4 Wash. C. C. 380 ; Munn v. Tlinois, 94 U. S. 113; R. R. Co. v. Husen, 95 H. S. 471; Bowman v. Railroad Company, 125 U. S. 489, 490; Nathan v. Louisiana, 8 How. 80, 81. "It is no objection to the existence of distinct substantive powers, that, in their application, they bear upon the same subject.” Gibbons v. Ogden, 9 Wheat. 235. "Legislation in a great variety of ways may affect commerce and persons engaged in it, without constituting a regulation of it, within the meaning of the Constitution.” Sherlock v. Ailing, 93 U. S. 99, 103, 104; Kidd v. Pearson, 128 U. S. 23 ; Railroad v. Husen, 95 U. S. 472 ; Munn v. Illinois, 94 U. S. 135; Gross Railway Receipts Tax, 15 Wall. 293.</p> <p>Lobsters do' not become articles of trade or commerce until lawfully removed under the regulations of the state. Corf eld v. Coryell, 4 Wash. C. C. 371, 380 ; Turner v. Maryland, 107 U. S. 58; Kidd v. Pearson, 128 U. S. 18. They do not become property in the hands of any persou unless possession is lawfully obtained. James v. Wood, 82 Maine, 177 ; Blades v. Higgs, 11 H. L. 631; Amer. Bx. Co. v. People, infra.</p> <p>The state owns the tide-waters and the fish in them, so far as they are capable of ownership while running. McCready v. Virginia, 94 U. S. 391, 394; Manchester v. Massachusetts, 139 U. S. 260, 261 ; Martin v. Waddell, 10 Pet. 410; Moulton v. Libby, 37 Maine, 472, 485, 487.</p> <p>So far then as short lobsters are concerned, the statute does not interfere with commerce in the constitutional sense of regulating it, because such lobsters are not property — the shipper is not the owner of them.</p> <p>It is contended that it was the duty of the common carrier as such to accept and carry the barrels of lobsters ; that he was neither authorized nor permitted to inspect them if in his possession ; that he could not insist upon knowledge of contents as a condition to acceptance for carriage ; and hence that he was placed in the dilemma of being compelled by law to act, and then punishable by law for having acted.</p> <p>Under the instructions given, the carrier' is not prevented from carrying lawful lobsters. Nor is he compelled to open packages in his possession to learn their contents. The court did not instruct the jury that if, after receiving packages, the carrier discovers that they contain lobsters, he is bound to know whether they are of illegal length.</p> <p>It is evidently true, as a general rule, that express carriers arc not bound to know or authorized to find out, as a condition of receiving it, what a package contains that is offered to them for carriage. The Nitro-Glycerine Case, 15 Wall. 536 ; State v. Goss, 59 Yt. 272. But these cases do not hold that under no circumstances may a carrier insist upon such knowledge as a condition of carriage. A.nd no case has been found that does so hold.</p> <p>The Nitro-Glycerine case is one where the question at issue was that of negligence, and did not involve, as does the present case, the validity of a statute which, as here contended, dispenses with the element of scienter. The case of Slate v. Goss was not against a common carrier but its agent, and it was sought upon familiar principles to hold the respondent liable criminally in respect of a transaction in which he engaged as agent for the shipper of intoxicating liquor,— for participation in a misdemeanor. And it is admitted in the latter case that the law neither requires nor permits common carriers to do illegal acts ; that they are not bound to transport and deliver intoxicating liquor nor other commodities, if thereby they would commit an offense or incur a penalty (p. 271).</p> <p>It is everywhere conceded that the carrier may refuse to receive packages offered without his being made acquainted with their contents, if there is good ground for believing that they contain anything of a dangerous character. It is admitted in the Nitro-Glycerine case, that such is the effect of the decision in Crouch v. The London <& Northwestern Railway, 14 Com. Bench, 291. The latter case, it will be found upon examination, decides simply that the proposition that a carrier is, in all cases, entitled to know the nature of the goods contained in the packages offered him for carriage, is not law.</p> <p>The obligation of a common carrier to receive and carry all goods offered is qualified by several conditions which he has a right to insist upon before receiving them, and one of the conditions is that the person offering is the owner or his authorized agent. Fitch v. Newberry, 1 Doug. (Michigan) 1S. C. 40 Amer. Decis. 1-38-43. He is not bound to receive goods from a wrong-doer. Robinson v. Baker, 5 Cush. 144.</p> <p>The shipper of lobsters of less than the statutory limit of length is not the owner, and he is a wrong-doer.</p> <p>In an action brought against a common carrier for refusing to receive and cany lobsters, would it not constitute a valid defense that the plaintiff was the unlawful possessor of them ? It is intimated that such would be a good defense, if he had stolen goods. See Fitch v. Newberry, supra, p. 38.</p> <p>The question presented, therefore, is whether or not the statute, as construed at nisi ]orius, is a valid exercise of the legislative right to regulate the fisheries of the state, and applies to common carriers. If decided in the affirmative, it would seem to follow by necessary implication that the carrier may exact knowledge of the contents of packages offered for carriage, when he knows they contain lobsters, or else that he is bound at his peril to ascertain their contents in some other way.</p> <p>The state may prohibit transportation by a common carrier of lobsters illegally taken, and, a fortiorari, the possession of such lobsters by a common carrier. In Amer. Ex. Oo. v. People, the Supreme Court of Illinois says : "If the legislature of the state thought that a statute preventing a citizen from killing quail for sale in the market, and imposing a penalty on a common carrier for shipping or transportation for sale, would result in protecting the game in the state, we perceive no valid reason why a statute of that character might not be enacted.” Amer. Ex. Go. v. People, 133 111. 649 ; S. C. Am. 23 State Rep. 641. Also reported in Cen. Law Jour. vol. 31, p. 271, with note and citation of cases.</p> <p>Bennett v. Am. Ex. Go. 83 Maine, 236, is not an authority against the position of the government. In that case it was claimed by the defendant’s counsel that under the statute (R. S., c. 30, § 12, quoted in opinion), they could not lawfully take any more deer, or parts thereof, into their possession for transportation before the following January. "But,” says the court, "we cannot adopt such a construction of this statute as would make it apply to common carriers. Such construction as claimed by the defendants would make it unlawful for the carrier to transport, between the first days of October and January, the carcasses of moose, caribou, or deer, lawfully killed before the first day of October” (p. 239). "The transportation of the subject of interstate commerce, where it is such as may lawfully be purchased, sold or exchanged is, without doubt, a constituent of commerce itself, and is protected by and subject only to the regulation of Congress ” (p. 242). The facts upon which that case was decided show that the plaintiff was the lawful owner and possessor of the deer seized. Comp. Oorfield v. Ooryell, 4 Wash. C. C. 380 ; KiddY. Pearson, 128 U. S. 18 ; Turner v. Maryland, 107 U. S. 58.</p> <p>Scienter on the part of the carrier is an essential of the offense under the Illinois law. But the Maine statute is silent as to intent or knowledge. The instructions to the jury as to scienter were in accordance with the manifest intention of the legislature. It is the policy of the law to prohibit arbitrarily the possession of lobsters of less than the prescribed length without reference to the possessor’s knowledge of their illegal character. The language of the act is : " It is unlawful to . . . possess for any purposes.”</p> <p>It is competent for the legislature to make an act criminal regardless of the knowledge or motive of the doer of such act. And it is laid down by the authorities that this may be done by implication as well as by an express clause ; that the question is one of public policy, and this may be taken into consideration when the legislative meaning is sought. Whart. Or. Law, (9 ed.) vol. 1, § 88 ; Hoisted v. State, 12 Yroom (41 N. J. L.), 552, 589, 592 ; State v. Hopkins, 56 Vt. 260.</p>

<p> Verdict,. Jury. Practice. </p> <p>A verdict of a jury like tlie following, “Verdict for plaintiff for two hundred and fifty-six dollars and eighty-five cents,” signed by the foreman and sealed up, is a good verdict in substance, and may be amended by the jury under the direction of the court, so as to he more formally correct, at any time before the verdict has been affirmed, although the jury had separated after the verdict was sealed up and before it was brought into court.</p>

<p> Fences. Fence-viewers. Notice. Adjudication. F. 8., c. 22, § § 4, 5, 6. </p> <p>A notice by fence viewers to co-terminous proprietors to meet on a certain day for a hearing of the parties before them “unless very stormy, and, if very stormy, on the next pleasant day following except Sunday,” is bad for uncertainty, rendering any adjudication made by them void, it not appearing that the parties were actually present in pursuance of such notice.</p> <p>An adjudication offence viewers is void if it does not declare the fence built by the complaining party “ to be sufficient.”</p>

On exceptions. The case is stated in the opinion. (1.) A commitment of a debtor in execution is, by the common law, a discharge of judgment. Coburn v. Palmer, 10 Cush. 273; see also Miller v. Miller, 25 Maine, 110 (113). But by the provisions of Act of 1835, chap. 195,— the original statute for relief of poor debtors — the rule of the common law was changed. Spencer v. Garland, 20 Maine, 75. The Court say: The twelfth section [sect. 42, chap. 148, II.

On exceptions. This was an action of debt in the name of the collector to recover taxes assessed by the town of Randolph against the defendant. It was tried in the Superior Court, for Kennebec county, before the presiding judge with the right to except on questions of law. The plaintiff offered no evidence of assessment of taxes except the warrant of commitment as set forth in the case.

On report. This was an action of assumpsit for the support of a minor child of the defendant after he had been divorced on the libel of the mother, who afterwards married the plaintiff. The facts are sufficiently stated in the opinion. Counsel argued : The divorce and the decree giving the custody of the child to the mother did not absolve the father from liability to support his child.

<p>On report.</p> <p>Declaration : In a plea of the case for the defendant is a public corporation chartered by the legislature of Maine and organized under its said act of incorporation for the purpose of conveying to and supplying the village of Bar Harbor, in the town of Eden, Hancock County, Maine, with pure and Avholesome water, and for that purpose is vested ivith and has exercised the right of eminent domain.</p> <p>And the plaintiff during the year 1892 and on and after August 30th in said year was the tenant and occupant of a house known as Buena- Yista, situated on Eden street, in said Bar Harbor, on the line of the defendant’s water main, which said house was then and there connected with said main ; that said defendant corporation was then and there bound and obliged by law to supply all residents of said Bar Harbor with water for domestic purposes for a reasonable price and without discrimination : and particularly that said defendant was then and there bound and obliged by law to furnish the plaintiff with water to be used for domestic purposes in said house for a reasonable price and without discrimination ; that a reasonable price to be charged for the water used for the year 1892 in the premises occupied by the plaintiff was thirty-seven dollars, and that said sum of thirty-seven dollars is and was then and there the regular water rate for said premises for one year as determined by the defendant’s schedule of water rates ; that on the 30th day of August, 1892, the defendant shut the water off from said house and disconnected it from their system ; whereupon the plaintiff tendei’ed and paid to said company the sum of thirty-seven dollars as aforesaid and demanded that said water be again turned on and the house again connected with said system, which the defendant refused to do until the further sum of one hundred twenty-nine dollars and seventy-four cents should be paid to them, being the amount of a debt claimed to be due to said Company from James Hinch, deceased, former owner of said house, and which debt the plaintiff was under no obligation to pay ; whereupon the plaintiff paid said amount to the defendant, not voluntarily, but under protest, for the purpose of inducing the defendant to perform their said duty, to the great damage of the plaintiff, to wit., in the sum of three hundred dollars, whereupon the defendant became liable and in consideration thereof then and there promised the plaintiff to pay her said sum on demand.</p> <p>The plea was the general issue.</p> <p>And for brief statement the defendant says, that if any sums of money were received by the defendant as the plaintiff has alleged in her declaration, said money was not the money of the plaintiff but was the money of John T. Hinch.</p> <p>Defendant refused to turn on the water until a further sum of $129.69 should be paid, being an old bill against the insolvent estate of James Hindi, former owner of the same house, whose heirs had rented the house to plaintiff. Thereupon the further sum of $129.69 was paid under protest, after which the water was again turned on. The money thus paid to the Bar Harbor Water Company was retained by them.</p> <p>The present action was subsequently brought to recover the amount thus paid in excess of the regular water rate. The defendant corporation was under obligation to furnish water to residents of Bar Harbor for reasonable prices and without discrimination. Being vested with the right of eminent domain for the purpose-of supplying the people of Bar Harbor with water, it is charged with the corresponding duty to so supply them. Rockland Water Oo. v. Adams, 84 Maine, 474.</p> <p>Whenever the aid of the government is granted to a private company in the form of a monopoly or donation of public property or funds, or a delegation of the power of eminent domain, the grant is subject to an implied condition that the company shall assume an obligation to fulfill the public purpose on account of which the grant was made. The same rule applies to companies invested with special privileges at the expense of the public for the purpose of supplying cities with water. Mor. Corp. § 1129.</p> <p>"As the defendant could not carry on the business of supplying water without the franchise, the city must have intended in granting such franchise to charge it with the performance of the duty it undertook for the public by the terms of its incorporation, and the defendant in accepting the benefit of the grant must have assumed the performance of such duties.</p> <p>" In a word, the acceptance of a franchise, under such conditions carries with it the corresponding duty of supplying the public with the commodity which the corporation was organized to supply to all persons without discrimination.” Haugen v. Albina Light and Water Oo. 21 Ore. 411. Louisville Gas Oo. v. Citizens Gas Light Oo. 115 U. S. 688; AT. 0. Gas Light Oo. v. Louisiana Light, Sc. Oo. 115 U. S. 650 ; Olmsted v. Proprietors, 47 N. J. L. 333 ; Lowell v. Boston, 111 Mass. 454, 464; State v. Telephone Co. 17 Neb. 126; Commercial Union Telegraph Co. v. Er. E. T. & T. Co. 61 Yt. 241; State v. Tel. Co. 36 Ohio State, 296; People v.' B. R. Co. 104 N. Y. 58; Vincent v. R. R. Co. 49 111. 33; Trust Co. v. Henning, 17 Am. Law Reg. (N. S.) 266.</p> <p>It is • equally well settled that where a corporation charged with a public duty makes an overcharge for the performance of such duty, such overcharge may be paid and recovered. Am. & Eng. Ency. of Law (Title, Duress) Vol. 6, page 77 ; Swift Co. v. U. S. Ill U. S. 343; R._ R. Co. v. Lockwood, 17 Wall. 379.</p> <p>The water having been shut off from the premises in consequence of the non-payment of $129.74 as soon as defendant thought it ought to be paid, and this having been thereupon paid by Hinch to have water again turned on, and having been paid voluntarily, in the legal sense of that term, to compromise a doubtful claim, cannot be recovered back. Parker v. Lancaster, 84 Maine, 512.</p> <p>Legality of by-law or regulation of a corporation depends upon whether the by-law or regulation is a reasonable one. Rockland Water Co. v. Adams, 84 Maine, 472. Regulation a reasonable one. Appeal of Brumm, Am. Dig. (1888) p. 1379.</p> <p>If this money was paid by Mrs. Randolph, it was a voluntary payment and the money cannot be recovered back. Demand upon a person for the payment of money though the demand is illegal, does not render the payment involuntary unless the person making the same can save himself and his. property in no way. If other means are open to him by a day in court or otherwise, he must resort to such means. De La Cuesta v. Ins. Co. of E. T. 136 Pa. 62; S. C. 9 L. R. An. 631; Amesbury Co. v. Amesbury, 17 Mass. 461; Preston v. Boston, 12 Pick. 14; Harvey v. Girard Eat. Bank, 119 Pa. 212; S. C. 11 Cent. Rep. 675 ; Radich v. Hutchins, 95 U. S. 210 ; Rogers v. Greenbush, 58 Maine, 390.</p> <p>If the first tender of August 30th was made by Mrs. Randolph, and the defendant water company thereby became liable to furnish water to her, she was not without a speedy and complete remedy ; mandamus lies to compel a water company to furnish water to one entitled thereto. Haugen v- Albina Light & Water (Jo. 21 Ore. 411; People v. Green Island Water Go. .56 Hun, 76 ; Townsend v. Fulton Irrigating Ditch Go. (Colo.) 29, p. 453. See also Central Union Telephone Go. y. State, 118 Ind. 194 : S. C. 19 N. E. 604 ; State v. Del. & Lackawana & G. R. R. Go. 48 N. J. L. 55 ; S. C. 57 Am. Rep. 543 ; Wells v. FT. P. Ry. Go. 23 Fed. Rep. 269 ; R. R. Oomm’rs v. P. & O. G. R. R. Go. 63 Maine, 569.</p> <p>Payment was not made under duress. Fact that it was paid under protest renders it none the less, in legal sense, a voluntary payment. Emmons v. Scudder, 115 Mass. 367 ; Fleetwood v. Gity of N. Y. 2 Sandf. 475 ; Forbes v. Appleton, 5 Cush. 115 ; Benson v. Monroe, 7 Cush. 125 ; Gook v. Gity of Boston, 9 Allen, 393 ; People v. Wilmerding, 62 Hun. 391; Ashley v. Ryan, 6 Ohio Cir. Ct. R. 208.</p> <p>Defendant has no money in its treasury, by reason of this payment, which it may not in good conscience retain.</p> <p>If the money was Hindi’s and defendant took an illegal way to collect it, still the action for money had and received is not open to him. Hayford v. Belfast, 69 Maine, 63.</p> <p>And if the money was Mrs. Randolph’s and with it she has paid the just claim against another, payment having been made voluntarily she cannot recover the money so paid. Schlaefer v. Heiberyer, 4 N. Y. S. 74.</p> <p>If the defendant company is under any liability to Mrs. Randolph, it is for damages only sustained by her in consequence of shutting oif the water, she having first proved that the shutting off was illegal.</p>

<p>On report.</p> <p>This was a petition for partition in which the petitioners allege as follows :</p> <p>Mary F. Spear, married woman and wife of Nahum Spear, Augusta A. Pettengill, married woman and wife of Leonidas Pettengill, both of Monmouth, in the county of Kennebec and State of Maine ; Charles H. Prescott of Haverhill, in the county of Essex, George Prescott and Edward Prescott, both of Boston, in the county of Suffolk, and all in the Commonwealth of Massachusetts, respectfully represent and show unto your Honors' that they are seized in fee simple, andas tenants in common, of and in certain real estate, situated in Lewiston, in said county of Androscoggin, on the easterly side of Park street, and being the same real estate of which Lydia W. Prescott, late of said Lewiston, deceased, died seized and possessed (description of premises) ; each being seized of one undivided tenth part thereof, with one Mary A. Fogg, of Old Orchard, in the county of York, who is seized of one undivided half part thereof, &c.</p> <p>Mary A. Fogg, the original respondent, filed no pleadings and made no defense. The respondents, George S., Charles E., and Frank B. Fogg and Clara M. Yates upon motion were admitted as parties respondent and filed a brief statement claiming title; the petitioners filed a counter statement denying the title of said respondents.</p> <p>The parties agreed to the following statement:</p> <p>Lydia W. Prescott, a resident of Lewiston, died in 1856, or early part of 1857, seized in fee of the premises described in the petition. She died unmarried, leaving neither father nor mother. Her will dated March 25, 1856, was duly proved and allowed in Androscoggin county on the second Tuesday of March, 1857.</p> <p>The residuary clause in said will as follows : "I give to my sisters, Mary S. Pecker and Frances S. Fogg, in equal shares, all the rest and residue of my estate, real, personal, or mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease, to have and to hold the same for and during the term of their natural lives, and at their decease, to descend to their children respectively, and to be equally divided among them or the survivors of them. The said Mary S. and Frances S. to erect at my grave a suitable monument or grave stones, and furnish an iron fence sufficient to enclose my grave, together with the graves of my parents and sister, Clara.</p> <p>The premises described in the petition constituted a part of said residuary estate. The said Frances S. Fogg and Mary S. Pecker went into occupancy of said premises under said devise, and continued to occupy the same as tenants in common until the death of Frances S. Fogg, which occurred August 30, 1881. And after the death of said Fogg, the said Mary S. Pecker continued to occupy said premises as co-tenant with the respondent Mary A. Fogg and those under whom she claimed title, until the death of said Mary S. Pecker which occurred June 3, 1893.</p> <p>At the death of Frances S. Fogg, her surviving children were a son, George E. Fogg, and a daughter, Clara P. Myers; she also left a granddaughter, Fanny M. Crosby, who was the sole daughter of Charles E. Fogg, a deceased son of said Frances, who had died before his mother. Since October 25, 1884, the respondent Mary A. Fogg has acquired title to one undivided half part of the premises described in the petition, through certain conveyances from said George E. Fogg, Edward P. Myers, husband of Clara P. Myers, and said Fannie M. Crosby.</p> <p>George E. Fogg died intestate October 15, 1892, leaving as ' his heirs at law three sons and one daughter, being the remonstrants, George T. Fogg, Charles E. Fogg, Frank B. Fogg and Clara M. Yates.</p> <p>Clara P. Myers died intestate, after the death of her mother and prior to May 23, 1883, leaving no lineal descendants. The petitioners do not admit that Fanny M. Crosby had any title to said premises or any part thereof except such as she acquired as heir of said Clara P. Myers.</p> <p>In her lifetime Mary S. Pecker had three children, Mary F., Clara P. and George A., of whom Clara P. and George A. were living and Mary F. had died prior thereto intestate and without issue at the date of said will and at the death of Lydia W. Prescott. All of the children of Mary S. Pecker died intestate, without issue.</p> <p>Mary S. Pecker survived all her children and died leaving no lineal descendants. George A. Pecker was her last surviving child ; he died November 10, 1890, intestate, leaving his mother as his sole heir.</p> <p>At the death of Lydia W. Prescott, her next of kin were two brothers, Samuel T. Prescott and Ebenezer Prescott and two sisters, the said Frances S. Fogg and Mary S. Pecker.</p> <p>Samuel T. Prescott died intestate February 2, 1869, leaving as sole heirs at law, two sons, George Prescott and Edward Prescott, now living, being two of the petitioners.</p> <p>Ebenezer Prescott died intestate March 21, 1887, leaving as sole heirs at law, three daughters, Mary F. Spear, Augusta A. Pettengill and Charles H. Prescott, being three of the petitioners.</p> <p>At the death of Mary S. Pecker, the title descended to her heirs, the petitioners, who are her nieces and nephews, excluding the respondents, who are grandnephews and grandnieces, children of George E. Fogg, a nephew, who died before Mrs. Pecker.</p> <p>Mary A. Fogg files no pleadings and makes no defense.</p> <p>The other respondents have been admitted upon motion and each claim title to one twenty-fourth part of the premises ; their claim of title is denied by petitioners, who are the nieces and nephews of Mary S. Pecker, and her heirs.</p> <p>The first question for consideration is upon the claim of title made by the four new respondents. Marr v. Hobson, 22 Maine, 321.</p> <p>At the death of Mary S. Pecker, the life tenant, June 3,1893, the fee in one-half of the estate had vested in her by the prior deaths of her two children, Clara P. Pecker and George A. Pecker, intestate and without issue; and the estate then passed to her nieces and nephews, who are the petitioners, to the exclusion of her grandnephews and grandnieces, who are the respondents contesting and claiming shares. R. S., ch. 75, § 1, par. V; Davis v. Stinson, 53 Maine, 493.</p> <p>The general rule is, that where a will gives a life interest to one, with a devise over, either for life or in fee, to a definite class of persons, those take who constitute the class, not when the event occurs, but when the devise becomes operative by the death of the testator. Merriam v. Simoncls, 121 Mass. 198, in which the language was " and after their [the life tenants] decease to be equally divided among their children or their legal representatives.” Whall v. Converse, 146 Mass. 345 ; (Jammings v. Cummings, 146 Mass. 501, in which the provision was, "and at her [wife’s] decease to divide the principal equally between my blood relations.” Dorr v. Dovering, 147 Mass. 530, 534; Doring v. Carnes, 148 Mass. 223. Upon this principle, Clara P. and George A. Pecker took a vested interest in the estate, at the death of the testatrix, and that interest descended to their mother, the life tenant, and at her death descended to her heirs, the petitioners.</p> <p>First. The interest of the children of Mary S. Pecker was a vested remainder.</p> <p>It has long been a settled rule of construction in the courts of England and America, that estates, legal and equitable, given by will, should always be regarded as vesting immediately, unless the testator has' by very clear words manifested an intention that they should be contingent upon a future event; and no remainder will be construed to be contingent, which may consistently with the intention, be deemed vested. McArthur v. Scott, 113 U. S. 340; Blanchard v. Blanchard, 1 Allen, 223, 225 ; Doe v. Oonsidine, 6 Wall. 458; Leighton v. Leighton, 58 Maine, 63 ; Dingley v. Dingley, 5 Mass. 535.</p> <p>A devise for life, with remainder to the children of the life tenant, creates a vested remainder in the children, unless there is some expression sufficient to show the contrary. Gibbens v. Gibbens, 140 Mass, 102; Pike v. Stephenson, 99 Mass. 188; Wight v. Shaw, 5 Cush. 56; Bowdilch v. Andrew, 8 Allen, 339, 342 ; Parker v. Converse, 5 Gray, 336.</p> <p>Second. There are no words in the will ofLydia W. Prescott, sufficient, upon well established rules of construction, to show any intention that the remainder should be contingent.</p> <p>At the death of the testatrix, as well as at the date of the will, two children of Mrs. Pecker, Clara P. and George A., were living.</p> <p>There are absolutely no words of contingency such as, "to their children, if they shall be living at her death,” or " to such of them as shall be living at her death,” or " when he shall arrive at the age of twenty-one years, or at the death or marriage ” of the life tenant, as in Snow v. Snow, 49 Maine, 159, or "should the wife die or marry, the land shall then be equally divided among the surviving sons,” as in Olney v. Hull, 21 Pick. 311. In this case the estate in remainder is not limited to take effect either to a dubious or uncertain person, or upon a dubious or uncertain event. Hunt v. Hall, 37 Maine, 363, 366; Leighton v. Leighton, 58 Maine, 63, 68.</p> <p>In this instance the persons wdio were to take upon the death of the life tenant were living and ascertained : there was no time when there was not, or wdien there must not be, by force of the will, and the law governing its application, a person in esse, having a capacity to take whenever the possession should become vacant. Brown v. Lawrence, 3 Cush. 390, 398 ; Childs v. Russell 11 Met. 16.</p> <p>This will seems rather to belong to that class of cases, in which the terms of survivorship are referred to the death of the testator, and not to the termination of the particular estate. Moore v. Lyons, 25'Wend. 119 ; Branson v. Hill, 31 Md. 181; S. C. 1 Am. Pep, 40 ; Mowatt v. Caroio, 7 Paige, 328 ; Ross v. Brake, 37 Pa. St. 373.</p> <p>Nor do the words "at their decease” create any contingency. These words are construed to refer to the time of payment or possession, and do not postpone the moment when the gift shall operate. Lombard v. Willis, 147, Mass. 13, and cases cited ; Boe v. Considine, 6 Wall. 458 ; Clews’ Appeal, 37 Pa. St. 23.</p> <p>The use of the words "to descend,” supports this view, for those words do not imply any contingency, or'any postponement of the time when the remainder shall vest in interest, until the termination of the life estate ; but, like the word " inherited,” they imply "taking immediately from tbe testator upon his death, as heirs take immediately from their ancestor upon his death.” McArthur v. Scott, 113 IT. S. 340; Parker v. Converse, 5 Gray, 33.G; Dove v. Low, 128 Mass. 38, in which the language was, "After the death or marriage of my surviving daughter taking under this item, the estate herein devised shall descend to those persons who may then be entitled to take the same as my heirs.” Held, that the word " then ” was not inserted by way of description of the persons who are to take, but by way of defining the time when they should come into the enjoyment of that which is devised to them, and that the devise over was to those who wrnre the heirs of the testator at the time of his death. This result was considered to be "fortified by the use of the word 'decease,3 which ordinarily denotes the vesting of the estate by operation of law in heirs immediately upon the death of the ancestor.”</p>

On APPEAL. Upon the hearing in the court below on bill, answers and testimony, a decree was made dismissing the bill; and the plaintiff appealed. The facts in the case as stated in the decree are as follows: Lemuel D. Jordan was formerly the owner in fee of the land described in the bill. In November, 1880, Benj. F. Gray, the complainant, went to Mr. Lemuel D. Jordan and negotiated for the purchase of the land.

On exceptions. This was an action on the case upon an account annexed, the principal item of which was for services of the plaintiffs’ stallion, '' Sir William,” to the defendant’s mare in 1889, when said mare was bred to said stallion.

<p>On report.</p> <p>This was a petition by the city of Deering to the commissioners, for the county of Cumberland, praying for an alteration and widening of Forest Avenue in that city. The cause came on for hearing, in this court below, upon motion for leave to amend the original petition, and upon motion for the acceptance of the report of the committee ; and by agreement of counsel, the case ■was reported to the law court to enter such judgment as the legal rights of the parties might require.</p> <p>(Petition.)</p> <p>To the honorable board of county commissioners of Cumberland county, in the State of Maine :</p> <p>The city of Deering b)r W. W. Merrill, mayor of said city, duly authorized so to do by vote of the city council, respectfully represents that public convenience and necessity require the alteration or widening of Forest Avenue, so called, in the city of Deering, beginning at a point near the residence of Joseph L. Winslow and extending to the Portland & Rochester Railroad crossing at Ocean street, Woodford’s corner. Your petitioners therefore request that your honors will, after due notice, proceed to view said route, hear the parties, and alter or widen said highway as provided in Revised Statutes, chapter 18, sec. 1. And as in duty bound will ever pray.</p> <p>February 4th, 1893.</p> <p>The City of Deering,</p> <p>By William W. Merrill, Mayor.</p> <p>The denial of the petition by the commissioners, the appeal from their decision, the appoinment of a committee, and the report of the committee are sufficiently stated in the opinion, as well as the objections to the acceptance of the committee’s report.</p> <p>(Motion to amend.)</p> <p>And now comes said petitioner and moves that it have leave to amend its said petition by inserting after the words " view said route, hear the parties and alter or widen said highway,” the words ”to the extent that the easterly side line of said widened highway shall begin . . . (courses and distances here follow).</p> <p>The westerly side line of said widened highway shall be as follows, to wit: . . . (courses and distances here follow).</p> <p>Couusel cited: New Vineyard v. Somerset, 15 Maine, 22; Harkness v. Co. Com. 26 Maine, 356; King v. Lewiston, 70 Maine, 408. Case last cited may be distinguished from the present- case. When private and general legislation conflict, the general legislation will ordinarily prevail. Time of the passage of the law is an important element. The special legislation giving the city of Deering a charter in 1889 should prevail over the general statute ; but it is claimed that the importance of the present case demands a re-examination of the question.</p> <p>Petition defective: Sumner v. Co. Com. 37 Maine, 113; Howland, v. Co. Com. 49 Maine, 146 ; Raymond v. Co. Com. 63 Maine, 113; Hayford v. Co. Com. 78 Maine, 153; Byra-nt v. Co. Com. 79 Maine, 128. It fails to .state how much of an alteration or widening is desired and at what points; it does not give interested parties notice of what is to be done, or to what extent their interests are to be affected.</p> <p>The committee exceeded its powers. Irving v. Co. Com. 59 Maine, 513.</p> <p>Amendment: Comes too late. Jewett v. Hodgdon, 3 Maine, 103 ; Com. v. Cambridge, 7 Mass. 158.</p>

On exceptions. This was an action of trespass brought by the plaintiff against the sheriff of Androscoggin county to recover damages for the act of his deputy in seizing the plaintiff’s goods as the property of one Beliveau by virtue of a warrant and injunction issued by the Court of Insolvency.

On report. This was a complaint for flowage. It was agreed that the right to maintain the complaint depended upon the construction of the deed, found below. In the deed are these words : — Also the right of flowing the Great Pond.” The defendant corporation claimed that by this clause in the deed an unlimited right of flowage was conveyed, and’that, by subsequent conveyances, they are now the owners of that right.

On report. This was an action of replevin of an engine and boiler to which the plaintiffs claimed title as purchasers at an execution sale and the defendants, who were mortgagees. The judgment debtors on the twenty-fifth day of February, 1890, mortgaged the property replevied to the defendant Earle and one Edgar W. Salisbury. Both mortgagees resided in Bhode Island.

On exceptions. This was an action of trespass to recover damages caused to the plaintiff by the bite of a dog, of which the defendant was alleged to be the owner and keeper in the first count, and keeper in the second count of the declaration.

<p>On motion and exceptions.</p> <p>This was an action by the plaintiff' upon a certificate of insurance, in the sum of two thousand dollars, issued by the defendant association, May 31st, 1892, upon the life of Forest A. Grindle. The certificate was issued under what is known as the club plan, whereby one-half of the benefit in the event of the death of the member was tó be paid to certain persons, or the survivors of them, named in the certificate and the other half to his wife, the plaintiff, who was named in the certificate as the beneficiary.</p> <p>The plaintiff brought the action to recover of the defendant association the one-half of the benefit which was to be paid to her, under the terms of the certificate, in the event of her husband’s death, viz., the sum of $1000 and interest from the time when it should have been paid.</p> <p>The defendant association answered the suit in its brief statement that the certificate was null and void because, as was alleged, certain answers of the deceased in his application for the insurance were false. The trial proceeded on this issue, raised by the defendant, that there was no liability whatever as the certificate was void</p> <p>After the presiding justice had given instructions upon the questions raised in the trial upon the issue of the validity of the certificate, and was instructing the jury as to their verdict, in case they found the certificate valid under the evidence and the instructions given, the defendant’s counsel requested the following instructions.</p> <p>"If the plaintiff is entitled to recover under the evidence, it is incumbent upon her to prove the amount of damages she is entitled to; and as it is provided by the certificate that the amount to be paid, if the certificate is valid, is to depend upon the amount received by the defendant from one death assessment-less twenty (20) per cent, . ... and as no evidence has been offered of the amount received or that might be received from one death assessment by the defendant, I instruct you that the plaintiff is entitled to no more than nominal damages.</p> <p>"2. If the plaintiff is entitled to recover, no evidence of the damage sustained having been offered except the certificate, I instruct you as a matter of law, that the plaintiff is entitled to nominal damages only.”</p> <p>These instructions were refused, and the presiding justice instructed the jury as follows :</p> <p>"I instruct you, that the amount which the plaintiff* would be entitled to recover under this certificate will be one-half the benefit therein named, and the benefit therein named is $2000, so that she will be entitled to recover, if she is entitled to recover, one-half thereof, or one thousand dollars, together with interest from and after the expiration of ninety days from the filing' of' the proofs of the loss.”</p> <p>To the refusal to give the instructions requested, and to the instructions given, the defendant excepted.</p> <p>The jury returned a verdict for the plaintiff of $1062.00. The defendant after verdict also filed a general motion for a new trial.</p> <p>Counsel cited: Curtis v. Mut. Ben. Life Co. 48 Conn. 98 ; Eggleston v. Cent. Mat. Life Asssoc. 18 Fed. Rep. 14; Smith v. Cov. Mut. Ben. Assoc. 24 Fed. Rep. 685 ; Mut. Acc. Assoc. v. Tuggle, 39 111. App. 509.</p>

<p>On report.</p> <p>These were two actions, one being a real'action and the other trespass q. c., in which the plaintiff claimed title to a small triangle containing about three acres, lying at the east end and adjoining the defendant’s land in Madison, Somerset county. Plea,- general issue. Both cases were submitted to the law court, upon so much of the testimony as might be found competent and admissible, to render such judgment as the legal rights of the parties required.</p> <p>The defendent testified, subject to objection, that at the time he purchased his land of the plaintiff, including that adjoining the disputed strip, the title to which was not controverted, the plaintiff told him that the land run east as far as Baker’s, and that the fence on the east end was the east line. This conversation was not upon the premises. The case appears in the opinion.</p> <p>Plaintiff estopped by his statements to defendant. Louies v. Kenniston, 50 Vt. 116; Hendricks v. Kelly, 64 Ala. 388; Woodward v. Tudor, 81 Penn. St. 382 ; Rutherford v. Tracy, "48 Mo. 325 ; Bigelow v. Foss, 59 Maine 162.</p> <p>In starting from Blanchard’s southeast corner the monument to be reached to the south is the Charles Baker land. It is familiar law that monuments govern courses and distances. The point on the Baker line nearest from the Blanchard corner is the northeast corner of the Baker land, and is forty-six rods and fifteen links, while in running due south it takes forty-seven rods and three links to reach the Baker land.</p> <p>Where in the description of a tract of land, an ascertained or natural object is called for, the same must be reached by one straight line, irrespective of course or distance ; and when such ascertained and natural object is of Sn extensive character, such as another tract of land, a river, or a swamp, this line must be run to the nearest point in such object. Campbell v. Branch, 4 Jones (N. C.), L. 313; Spruel v. Davenport, 1 same, 203.</p> <p>Construing the deed according to the manifest intention of the parties and in case of doubt most strongly against the grantor and harmonizing all the circumstances and acts of the parties, including the statements made by plaintiff to defendant, it seems clear that the easterly line of the plaintiff’s deed to defendant runs from Blanchard’s southeast corner to Charles Baker’s northeast corner. Worthington v. Hylyer, 4 Mass. 195 ; Herrick v. Hopkins, 23 Maine, 217.</p> <p>Defendant having no knowledge ofthe other deed from Webster Deed to plaintiff’, having obtained the quitclaim deed on December, 1881, and recorded at that time, holds the territory against plaintiff’s deed of prior date but of later record. Dow v. Whitney, 147 Mass. 1.</p>

<p>Injunction Bond. Damages. Counsel Fees. B. 8., c. 77, § 32.</p> <p>•In an action upon an injunction bond conditioned to pay all damages sustained if the injunction is finally dissolved, held, that this was not the bond prescribed by statute (R. S., c. 77, §32) but is a binding obligation according to its terms.</p> <p>Damages within the meaning of the bond are pecuniary losses arising from the restraint imposed by the injunction, and not expenditures for counsel . fees in the defense of the injunction suit.</p> <p>Thurston v. Haskell, 81 Maine, 303, affirmed.</p>

<p>Way. Defeat. Notice. Officer. Servant. B. S., a. 18, § 80.</p> <p>In an action to recover damages for personal injuries caused by a defective street, it appeared that the defect was created by a servant of the city. Held; that he was not such an officer of the city as the statute requires should have notice of the defect in order to make the city liable on account of it.</p>

On exceptions. The case is stated in the opinion. By the submission the plaintiff contends that the defendant waived the right under the policy to submit the case to arbitration. The policy states that the parties may waive that right. The submission being a matter of record introduced in the case, the effect of that submission was a question of law for the court and not a question of fact for the jury. When a domestic record is put in issue, it is to be tried by the court.

On exceptions. The plaintiff brought suit before a trial justice on an account annexed and the defendant filed a plea in abatement claiming a misnomer. The plaintiff filed a general demurrer. The trial justice sustained the demurrer, and the defendant appealed. The presiding justice in the court below sustained the demurrer, affirmed the judgment of the lower court, and the defendant excepted. (Plea in Abatement.) State of Maine. Somerset ss.

On report. Bill in equity heard on bill, answer, amended answer, replication, docket entries and master’s report. The case appears in the opinion.

<p>On exceptions.</p> <p>This wras an action of assumpsit referred to the presiding justice with the right to except. Judgment was rendered in favor of the plaintiff and the defendant excepted.</p> <p>The case is stated in the opinion.</p>

On exceptions. This was an action upon a promissory note given by the defendant, William H. Parsons, to the plaintiff. Ireson Briggs and John E. French, were summoned as trustees. The trustees disclosed that they were indebted to the said William H. Parsons for certain Perry Spring-tooth harrows, sold by said Parsons to said trustees. They further disclosed that the firm of Gr.

On report. This was a qui tarn action brought under Stat. 1891, c. 126, § 2, by the plaintiff, a game warden, to recover the penalty provided in the act of 1891, chap. 95, § 4, for having in one’s possession more than two caribou. After the evidence was out, the parties agreed to report the case to the law court.

On report. This was a bill in equity heard on bill, answer and testimony. The case is stated in the opinion. A ship’s husband or agent may contract bills against a vessel, but he cannot by virtue of his office borrow money on the credit of the owners to pay them. Areij v. Hall, 81 Maine, 17. Counsel cited : Hazeltine v. Miller, 44 Maine, p. 177, and cases.

<p>On report.</p> <p>The case appears in the opinion.</p> <p>Counsel argued the following points :</p> <p>By a decree of adoption the relations thereby created between the child and the adopters are not, and from the nature of things cannot be, absolutely the same as those theretofore existing between the child and its natural parents.</p> <p>The adoption proceedings being provided and controlled by statute, the relations thereby created between the child and the adopters, and the legal consequences arising therefrom, should be limited to the purposes defined by statute.</p> <p>The rights created by the adoption proceedings are only those of obedience to the adopters on the part of the child and of maintenance on the part of the adopters.</p> <p>The statute authorizing adoptions contains nothing from which it may be inferred that it was the intention of the legislature that the rule of settlement of a child should be changed or affected by adoption.</p> <p>The statute providing that legitimate children have the settlement of their father, refers to and means that such children have the settlement of their natural father, such being the ordinary acceptation of the word "father.”</p> <p>Such rule being expressly statutory, as are all the rules of governing pauper settlements, it should not be changed, extended or controlled by implication merely, but only by express statutory enactments.</p> <p>To hold that an adopted child takes the settlement of the father by adoption would give to the statute authorizing adoptions a construction which is radically opposed to the rule of settlement above referred to, and which may lead to anomalous and absurd results?</p>

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

On report. The case is stated in the opinion. The case shows that Fogg, who makes return on the warrant, was at the time of the service, a duly elected and qualified constable of the town of Sanford, in the county of York; Emery and Parker acted as his aids, and not in any official capacity. So if, by the warrant, no authority was conferred upon Fogg, he could confer none on his aids.

On report. This was an action of replevin of one cow. After the testimony had been introduced, the case was reported to the law court to determine all questions of fact and law involved upon so much of the evidence as was legally admissible. The case appears in the opinion.

<p>Way. County Commissioners. Jurisdiction, li. S., c. 18, § 19.</p> <p>Jurisdictional facts -which empower comity commissioners, as an appellate tribunal to act, must not be left to inference. They must be averred directly and positively.</p> <p>The unreasonableness of the neglect or refusal of selectmen to lay out a town way must on appeal be adjudged by the commissioners, or their proceedings will be quashed on certiorari. Tlieir adjudication that a way is of common convenience and necessity is not sufficient. The same principle equally applied when selectmen act unreasonably in laying out a town way. The commissioners as an appellate court must adjudge the action of the town to have been unreasonable if they would reverse its action. It is the determination of that question which gives the appellate court jurisdiction. If it fails to so determine, then it is without jurisdiction.</p> <p>On an appeal to the county commissioner’s from the laying out a town way by the selectmen and accepted by the town, they considered the same and reported: “ We are of opinion and adjudged, and do hereby adjudge and determine that common convenience and necessity do require that we reverse said action and ’decision of the municipal officers and inhabitants, and discontinue said way.” Held; that the county commissioners acted without jurisdiction in the premises, and that their record be quashed.</p> <p>State v. Pownal, 10 Maine, 24, reaffirmed.</p>

<p>On report.</p> <p>This was a petition for certiorari. The parties agreed to report the case upon the petition and answer to the Jaw court for such order thereon as the legal rights of the parties might require.</p> <p>The case is stated in the opinion.</p> <p>Counsel cited: Frankfort v. Co. Com. 40 Maine, 391; Bath Bridge v. Magoun, 8 Maine, 293 ; Lewiston v. Co. Com. 30 Maine, 19 ; Levant v. Go. Oom. 67 Maine, 429 ; Farmington River Go. v. Go. Oom. 112 Mass. 212; Lees v. Childs, 17 Mass. 351; Fmery v. Brann, 67 Maine, 39 ; Mendon v. Go. Com. 5 Allen, 13 ; Lisbon v. Merrill, 12 Maine, 210; Pike y. Herriman, ■ 39 Maine, 52 ; Tewksbury y. Go. Com. 117 Mass. 565 : Rutland y. Go. Gom. 20 Pick. 71; R. R. Go. v. R. R. Oom. 118 Mass. 564: Great Barrington v. Go. Oom. 112 Mass. 218 ; Hewettv. Go. Oom. 85 Maine, 308 ; People v. Van Alstyne, 32 Barb. 131; Derry Overseers v. Brown, 13 Penn. St. 386.</p>

On report. This was an action on the case to recover for injuries to the plaintiff’s horse, caused as alleged by a defective highway. Claim for damages: Sawyer v. Naples, 66 Maine, 455. Nature of injuries : Blaclcington v. Rockland, 66 Maine, 233 ; Goodwin v. Gardiner, 84 Maine, 280. Location of defect: Blackington v. Rockland, supra; Bradbury v. Benton, 69 Maine, 194; Hubbard v. Fayette, 70 Maine, 121; Chapman v. Nobleboro, 76 Maine, 430 ; Goodwin v. Gardiner, supra.

<p>Tenants in Common. Trespass. Serva/it. It. S., o. 95, § 5.</p> <p>It is no defense to an action of trespass, q. c., for cutting and carrying away wood and timber from land held in common and undivided, that the defendant was the servant or agent of the tenant occupying the premises, it appearing that the notice provided in II. S., c. 95, § 5, had not been given.</p> <p>Whether a mere servant in such case, who acts in good faith and without knowledge of the illegality of his act, is liable for treble damages under the statute, qucere.</p>

<p>On report.</p> <p>This was an action of assumpsit brought to recover of the defendant the sum of two hundred dollars as appeared by his alleged subscription upon an original subscription book, and upon the outer cover of which was the following writing, " Subscription for a steam mill to be erected at or near Bryant’s Pond.” The original agreement was as follows :</p> <p>" We, the undersigned, hereby agree to pay for the number of shares set opposite our names, said shares to be ten dollars each, and non-assessable, for the purpose of erecting suitable buildings, with steam power, for the manufacturing of the various kinds of wood to be used in the contract of one C. H. Adams, he paying three per cent annually as rent on all money so paid, said monies to be paid when needed for the purpose above named, providing the town will abate taxes on said buildings and stock for the term of ten years.”</p> <p>Plea, general issue and the following brief statement:—</p> <p>And for a brief statement of special matter of defense, to be used under the general*■ issue pleaded, the defendant further says: that said defendant never subscribed for nor promised to pay for any shares in the said Bryant’s Pond Steam Mill Company; that the signature of said defendant was procured and affixed to said paper declared on, if at all, on Sunday, and ■whatever contract was made, if any, was made on Sunday, and therefore void ; that subsequent to the time his said name was affixed to said paper and prior to the commencement of this suit and prior to the organization of this company this defendant revoked said subscription and notified the plaintiff and the solicitors for said stock that he should not accept the same, and requested his name stricken from the list of subscribers; that no person is named in said subscription paper as payee, and no c ontract was ever entered into with any person or persons; that no sum is named in said paper declared upon as a limit to the amount to be raised and is indefinite and uncertain ; that a sufficient sum was not raised or subscribed for erecting buildings with steam power for the manufacturing of the various kinds of wood, as alleged, and plaintiff was obliged to and did mortagage the property to complete the amount; that at the time the plaintiff company pretended to organize, this defendant was not recognized as a subscriber, did not participate in the organization, and is not named therein as one of the subscribers to the stock of the same ; that there were conditions attached to said subscription paper which are essential to be performed, and which have never been performed on the part of this plaintiff or any other parties interested in said subscription, or on the part of the town of Woodstock; that said paper, purporting to be a subscription of shares of stock is without consideration and void.</p> <p>An agreement whereby the signers, for a purpose of forming a corporation and providing it with funds, declared that they subscribed for stock to the amount set opposite their names, is valid; and upon the formation of the corporation, and its acceptance of the agreement, each of the subscribers becomes bound to pay for the number of shares subscribed by him.</p> <p>A corporation may sustain an action for subscriptions made to its stock before it was formed, though it is not named as a promisee in the agreement to subscribe. Swain v. Hill, 30 Mo. App. 436 ; Gomstock v. Howard, 15 Mich. 237 ; Marysville Electric Light & Power Go. v. Johnson, 27 Am. State Eep. p. 215; Griswold v. Trustees, 26 111. 41; Fulton v. Sterling Land Investment Go. 47 Kansas, 621.</p> <p>Subscriptions by a number of persons to stock of a corporation to be thereafter formed by them is, first: a contract between the subscribers themselves, to become stockholders -without further act on their part immediately upon the formation of the corporation, and as such is binding and irrevocable from the date of the subscription, unless cancelled by consent of all the subscribers .before acceptance by the corporation, and second: it is in the nature of a continuing offer to the proposed corporation, which upon acceptance by it after its formation, 'becomes as to each subscriber, a contract between him and the corporation. Minneapolis Threshing Machine Oo. v. Davis, 27 Am. State Eep. p. 701; Hudson Real Est. Go. v. Tower, 156 Mass. p. 82.</p> <p>In the last case cited, the corporation itself had notice upon which the defendant claimed to withdraw, and after notice by direct vote violated the condition upon which his subscription was made.</p> <p>A subscriber to the stock of a corporation in process of organization can neither withdraw nor be released by directors . without consent of all the subscribers. Hughes v. Antietam Mfg. Oo. 34 Md. p. 316.</p> <p>A subscription of money to be paid to a corporation not yet existing, is enforceable by it after it comes into existence. Such a subscription is in the nature of a continuing offer, which ripens into a binding obligation when the corporation, being fully organized, accepts such offer.</p> <p>Notice of the acceptance by a corporation of a subscription for its benefit, made before it was organized, is not necessary. Such acceptance may be inferred from the conduct of the corporation in retaining the subscription paper in its possession, and expending large sums of money on the face of it.</p> <p>When money is expended, labor bestowed, and materials furnished on the faith of a subscription paper, a consideration sufficient to sustain it, exists, and it becomes irrevocable. Richelieu Hotel Oo. v. International Military Encampment Oo. 33 Am. Eep. 234.</p> <p>The agreement was for a certain number of shares. Skowhegan, &c. R. R. Oo. v. Kinsman, 77 Maine, 370, and cases cited.</p>

<p> Railroads. Lien. Laborer. R. S., e. 51, §141. </p> <p>Railroads are made liable by statute (R. S., c. 52, §141) for tbe wages of laborers employed by contractors for labor actually performed on the road.</p> <p>Held; that the statute is not strictly remedial and is not to be extended or restricted in its operation beyond the filir meaning of Its words.</p> <p>Held; that one who superintends the building of bridges at an agreed com" pensation of seven dollars per day, keeps an account of the men’s time, and makes out their pay-rolls, is not a “laborer” within the meaning of this statute.</p>

On exceptions. These proceedings began -with a petition of the Canadian Pacific Railway to the Railroad Commissioners, the material parts of which are as follows : The Canadian Pacific Railway Company, a corporation duly established by law, and operating and maintaining a line of railway across said State from Mattawamkeag to the western boundary of the State, respectfully represents that the county commissioners of Piscataquis county have laid out a highway in township four…

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

<p>On motion and exceptions.</p> <p>This was an action to recover for personal injuries which the-plaintiff received by reason of a trolley-wire pole erected and .maintained on Exchange street, Bangor, which she claimed was an obstruction in the street, and such a defect as rendered the street unsafe for public travel.</p> <p>The only question raised by the exceptions, was to the ruling of the presiding justice upon the plea of defendant, setting up as a bar and defense to this action, that the plaintiff had recovered a judgment against the Bangor Street Kail way, by which the pole was erected and maintained,.for the same injuries, on which judgment and execution issued; there has been no satisfaction of that judgment.</p> <p>The case is stated in the opinion.</p> <p>Sunday law : Tillock v. Webb, 56 Maine, 100 ; Oralty v. Bangor, 57 Maine, 423.</p> <p>When a horse takes fright at some object, for which the municipality is not responsible, runs away and gets beyond control and an injury is received because of a defect in the street, the municipality is not liable as the defect is not the sole producing cause of the accident. Davis v. Dudley, 4 Allen, 557 ; Palmer v. Andover, 2 Cush. 600 ; Fogg v. JSfahant, 98 Mass. 578; Fogg v. Nahant, 106 Mass. 278; Perkins v. Fayette, 68 Maine, 152.</p> <p>There is no evidence in the case upon which to warrant a finding that this horse was frightened by the pole complained of. He was frightened at some other object and became unmanageable because of such fright, and the giving away of the vehicle to which he was attached, and this was the proximate cause of the injury. Spaulding v. Winslow, 74 Maine, 528 ; Aldrich v. Gorham, 77 Maine, 287.</p> <p>The charter of the Bangor Street Railway gives the municipal officers other and different powers and duties than are prescribed in the city charter. In the performance of all powers and duties authorized by the street railway charter, the municipal officers and city government do not alone represent the city of Bangor, and by the performance of such duties and powers make the people of Bangor liable for their acts. In the performance of such powers and duties they represent the whole people in acting under a separate and distinct charter from the one granted to the city of Bangor. Young v. Yarmoicth, 9 Gray, 386. The principle contended for is recognized in Small v. Danville, 51 Maine, 359 ; Mitchell v. Rockland, 52 Maine, 118 ; Oobb v. Portland, 55 Maine, 381 ; Woodcock v. Calais, 66 Maine, 234: Farrington v. Anson, 77 Maine, 416; Bulger v. Bden, 82 Maine, 352 ; Goddard v. Harpswell, 84 Maine, 499 ; Bryant v. Westbrook, 86 Maine, 450.</p>

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

On report. These were two actions to enforce lien claims upon the Windsor Hotel, in Bangor, and were tried together. The law-court was to render such judgment, upon so much of the evidence as was admissible and competent, as the legal rights of the parties required. The necessary facts are stated in the opinion.

On exceptions. This was an action for false and fraudulent representations in the sale of personal property. Verdict for the defendant.

<p>Agreed statement.</p>

On motion and exceptions. This was an action on the case upon which the plaintiff recovered a verdict of $347.17, for injuries received by her in alighting from the defendant’s horse car, on the evening of August 27, 1892, on Skinner street in Lewiston, her ankle being-broken.

On report. This was bill iu equity, brought by the complainant against the city of Auburn and its board of Water Commissioners, praying for an injunction to restrain the city from shutting off the complainant’s water supply to his several tenement houses.

On report. The case appears in the opinion. Mandamus was introduced to prevent disorders from a failure of justice ; therefore it ought to be used upon all occasions where the law has established no specific remedy and where in justice and good government there ought to be one. Springfield v. C. O. of Hampden, 4 Pick. 68; Oom. v. Sessions of Hampden, 2 Pick. 414; Mendon v. Worcester, 10 Pick. 235. Mandamus lies : To compel a court to accept a verdict improperly1 rejected.

<p>On report.</p> <p>The case is stated in the opinion.</p> <p>The whole conduct of the defendant in its various officers shows that it was then understood that the defendant was responsible for the safe arrival of the apples. The Neiv Hampshire court in the, case of Nashua Lock Go. v. Worcester & N. R. R. Go. 48 N. H. 339, has stated the law applicable to this case with clearness and great force. The court say : "In the agreed case it is said the goods were received to be forwarded to the place of their destination, and from that phrase an argument is drawn that the agreement of the defendant was to forward to the next party in the line and not to carry through; but there was no express agreement in any particular terms and we are not called upon to interpret the language used in any contract. The nature of the undertaking must be inferred from the facts stated in the agreed case. Even in a written contract where the term 'forwarded’ is used, if the thing to be done belongs to the business of a carrier, he will be charged as such.”</p> <p>In Wilcox v. Parnell, 3 Sandf. 610, the court say : "The criticism of the defendant is not just. It applies to the whole distance as well as to the portions of the route where he employed his own means of transportation. He was to forward the goods to New York and not to Buffalo, which he now says was the terminus of his own immediate route. The words used by him can only mean that he was to carry or transport the goods; whether in his own vessels or by using those of others was perfectly immaterial. Defendant gave receipt saying goods should be forwarded per freight train to Chicago.”</p> <p>The testimony indicates that the transaction between the station agent and Taylor was in no way different from an ordinary instance of a party taking goods to a carrier and paying the carrier full rates over the entire route and taking a bill of lading or some document to show'the receipt of the goods and the payment of the freight from the point of shipment to the point of destination.</p>

<p>On exceptions.</p> <p>This was an action to recover the value of two swine of the plaintiff, killed by the train of the defendant company on its railroad track in Fort Fairfield. In one count, the plaintiff alleged the want of a fence on the line of the location of the defendant’s railroad across the plaintiff’s land: and it was a material question at the trial, whether the defendant company was bound to maintain a fence there'. The jury returned a verdict for the plaintiff.</p> <p>The place was in a thickly-settled part of the village of Fort Fairfield, where the railroad runs along for some distance between and parallel with Main street and Aroostook river. The distance from the street to the river is about nine rods, and from the street to the railroad track is about six rods. The plaintiff’s lot extended from the street to the river, subject to the location of the defendant’s railroad across the lot. The lot from the street to the railroad track was forty-six feet wide between the side lines.' The track of the railroad was several feet above the natural surface of the land. The lot was not inclosed on either side, and no part of it was cultivated as a garden or farm, but was a villag'e residence-lot occupied by the plaintiff with dwelling-house and appurtenances, including a barn on that part between the street and the railroad. The barn, under which the plaintiff’s swine were kept, was eight feet from one side line'of the lot, and two feet from the other. One corner of the barn was seven feet, and the other corner ten feet, from the nearest rail of the track.</p> <p>There were other similar uninclosed residence lots, with similar buildings on the same side of the street, above and below the plaintiff’s lot. The railroad crossed these other lots. There were also several ways or paths in the near neighborhood leading from the street to the railroad track and, about ten rods above the plaintiff's lot, was a cross-street crossing the railroad and the river.</p> <p>The section foreman of defendant testified that he notified the plaintiff at the time of building the barn, that it was within the railroad location. The foreman also testified that a fence across the plaintiff’s lot would impede the operation of snow-plows in clearing the track.</p> <p>The swine were found by the jury to have passed directly from the barn across the line of the railroad location to the track.</p> <p>Upon the foregoing evidence, the presiding justice ruled, as matter of law, that the plaintiff’s land between the street and the railroad was "improved land" within the meaning of the statute, and that the defendant company was bound to maintain a fence across it, upon the line of the location. To this ruling the defendant seasonably excepted. The verdict being for the plaintiff the defendant took exceptions.</p> <p>Railroads are not responsible for damages to domestic animals arising from want of a fence at points which do -not admit of being properly fenced. 1 Redf. Rys. p. 515 ; Tol. & Wabash By Go. v. Daniels, 21 Ind. 256 ; I. P. <& G. By. Go. v. Truitt, 24 Ind. 162; 111. Gent. By. Go. v. Williams, 27 111. 48; Pericias v. East. B. B. Go. 29 Maine, 307.</p> <p>The statute cannot require an impracticability. There must be exceptions to its application, if its application would prevent the proper and convenient discharge of the railway’s public obligations and the exercise of its chartered and legal rights.</p> <p>It cannot be required to fence out the public, to serve which is the purpose and object of its creation. Its depot grounds and sidings cannot be fenced and yet the statute contains no exceptions as to them. It cannot be required to fence so as to impede the running of trains.</p> <p>If the plaintiff’s land be considered improved within the statute’s meaning, it must fall within the exception, if there be an exception, because fencing against it would have been useless, for defendant could not fence across the highway and different roads and passageways contiguous to it, because it would have interfered with the discharge of defendant’s functions as appears from the testimony of a witness that the fence would impede the running of a snow-plow necessary to clear the track of winters’ snows.</p>

On exceptions. The case is stated in the opinion. There was no written acceptance. R. S., c. 32, § 10. An unaccepted bill or draft payable generally, and not drawn upon a particular fund, is not a valid assignment of the fund, and creates no liability upon the drawee and no lien in favor of the payee. Am. and Eng. Ency. of Law.

On exceptions. This was an action of assumpsit upon account annexed to recover $890.60, alleged to be the aggregate of certain bills for boarding certain railroad men, and certain supplies delivered the same men, while boarding and working upon the railroad.

<p>Beal Action. Disseizin. Adverse Use. B. S., c. 105, § 10.</p> <p>The object of the statute in relation to what may be considered sufficient evidence of disseizin (R. S., c. 105, § 10) was to modify the strict rules of the common law in relation to disseizin, or such exclusive and adverse possession of lands as to bar or limit the right of the true owner thereof to recover them, by dispensing with the necessity offences or other obstructions, and rendering possession and occupancy sufficient evidence of an adverse intent of a party holding it, in the absence of other testimony controlling its true nature if the possession, occupation and improvement are open, notorious, and comporting with the ordinary management of a farm, “ although that part of the same which composes the wood-land, belonging to such farm and used herewith as a wood-lot, is not so inclosed.”</p> <p>The final clause of this statute was intended to apply to a case where the disseizor is occupying and using a wood-lot in connection with land on a farm which he is also occupying and using adversely.</p> <p>It was not intended to apply to a case where a person enters upon land of which he holds title, and all his visible acts of ownership are done upon that land, and thereby acquire title to a tract of wood-land, although it may lie contiguous to such land.</p> <p>It must be a part of the farm adversely occupied in order for the statute to apply.</p>

<p> Insolvent. Exemptions. Waiver. Estoppel. </p> <p>Where an insolvent debtor pointed out to tbe assignee two wagons as a part of his estate and refused upon request of his assignee to select which one he would retain, but claimed to be entitled to both, and the assignee relied upon his acts and representations, and from them understood that the two wagons were the property of the estate, and thereupon took the wagon in suit, leaving the other as exempt, then the debtor would be estopped by his acts and representations from maintaining a suit for the wagon taken by the assignee.</p>

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

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

<p> Trial Justice. Appeal. Assumpsit. Case. </p> <p>Assumpsit for money liad and received will not lie against a trial justice, to recover fine and costs paid to him upon a decision in a case where he had jurisdiction of the person and offense, even if the justice wrongfully refused to allow au appeal from his decision.</p>

<p>On report.</p> <p>This was an action of trespass quare clausum fregit for entering land, to which the plaintiff claims title, situate partly in the town of Belgrade and partly in Sidney, Kennebec county, and there cutting down and carrying off a number of pine trees thereon growing.</p> <p>The defendants pleaded the general issue, and Madison Bean, one of the defendants, in addition, by way of brief statement, pleaded title in himself to the land on which said trees were growing.</p> <p>It was admitted by the plaintiff that the acts complained of, as constituting the trespass, were committed on that portion of the land claimed by the plaintiff which lies in Sidney and which is so described in the writ.</p> <p>On the other hand, it was admitted by the defendants that they cut the trees upon that portion of the land described in the writ, and claimed by the plaintiff, which lies in the town of Sidney ; and they seek to justify their acts under claim of title in Madison Bean ( one of the defendants) to that portion of the land described in the writ which lies in the town of Sidney.</p> <p>The case is stated in the opinion.</p> <p>A chalk plan showing the locus and surroundings is appended.</p> <p>The plaintiff stands in shoes of Braley as grantee, and defendant in place of Crosby as grantor. The deed of Crosby to Braley must be construed most strongly against the grantor and against the defendant. It does not state that the land is wholly in Belgrade, nor mention the town of Sidney, nor refer to the town line, a monument. No intention is expressed to exclude land in Sidney. Town line not intended as a boundary, its location not then known. Call, in deed, names Clark’s pond as eastern boundary, which is inconsistent with town line being intended. The failure to mention the fact that part of the land is in Sidney will be treated as an omission or mistake. Tenney v. Beard, 5 N. H. 58 ; Wilt v. Gutter, 38 Mich. 189. Where the calls are inconsistent, the construction favorable to grantee will prevail. Foster v. Foss, 77 Maine, 279; Vance v. Fore, 24 Cal. 435 ; Hall v. Gittings, 2 Har. & J. 112 ; Piper v. True, 36 Cal. 606; Bonney v. Miller, 18 Iowa, 460; Butting v. Herbert, 35 N. H. 121; Miller v. Cherry, 3 Jones Eq. (N. C.) 24. The words "all land, &c.,to the west of Clark’s pond” makes that pond a monument.</p> <p>Counsel also cited: Tyler v. Fickett, 73 Maine, 410; Fsty v. Baker, 50 Maine, 325 ; Knowles v. Toothaker, 58 Maine, 172 ; Ames y. Hilton, 70 Maine, 36 ; Pierce v. Faunce, 37 Maine, 63 ; Williams v. Western B. JR. 50 Wis. 71; Harlow v. Nis/c, 12 Cush. 302; Friedman v. JBelson, 53 Cal. 589.</p> <p> </p> <p>The plaintiff has shown by a fair preponderance of evidence that he owns and is entitled to hold to the southern extremity of Pond No. 1, from which point it is immaterial by what course the line is drawn to the south line of the lot, because even a due west course from the south extremity of the pond will give plaintiff the land on which most if not quite all the disputed trees were cut, and therefore entitles him to recover in this action.</p>

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

On MOTION. This was an action on the case in which the plaintiff recovered a verdict for personal injuries received in a collision of his carriage with the defendant’s freight train, consisting of four freight cars and one saloon car, while making a flying switch after dark at the Summer street crossing, near defendant’s. station in Foxcroft, Piscataquis county, in the evening of November 23, 1891.

<p>On exceptions.</p> <p>This was an action on the case in which it was alleged that the injuries, received by the plaintiff while in the defendant’s employ, were caused by its negligence in not furnishing a safe and suitable door, with its machinery or mechanism, which the plaintiff was required to use in his business, by reason whereof he received the injuries complained of.</p> <p>At the conclusion of the plaintiff’s evidence, the defendant moved a nonsuit for the' following reasons, viz. :</p> <p>1. Because of contributory negligence on the part of the ' plaintiff.</p> <p>2. Because the plaintiff, at the time of the injury, had knowledge of the defective machinery- or mechanism connected with the door.</p> <p>3. Because the plaintiff, at the time of the accident, was voluntarily engaged in work outside the scope of his employment.</p> <p>4. Because the defective door was not the cause of the accident.</p> <p>5. Because the evidence does not show a cause of action.</p> <p>The court thereupon ordered that the plaintiff become nonsuit and he took exceptions.</p> <p>1. Counsel cited on the question of contributory negligence : Guthrie v. Me. Gent. R. R. Go. 81 Maine, 580; Nugent v. B. G. & M. R. R. 80. Maine, 62-70; Plummer v. Pastern R. R. Go. 73 Maine, 591; Worm-ell v. Railroad Go. 79 Maine, 397 ; Hobbs v. Pastern R. R. Go. 66 Maine, 575 ; Besan v. M. G. R. R. Go. 77 Maine, 85; O'Brien v. McGlinchy, 68 Maine, 555 ; Gaynor v. Old Colony R. R. Go. 100 Mass. 208 ; Ohaffee v. B. <& B. R. R. Go. 104 Mass. 108; Thomas v. Western Union Tel. Go. 100 Mass. 156; Mahoney v. Metropolitan R. R. Go. 104 Mass. 75 ; Bund v. Tyngsboro, 11 Cush. 563 ; Q. B. & Q. R. R. Co. v. Stunqifs, 55 111. 367.</p> <p>2. Knowledge of defect: Beach on Contrib. Neg. § 346 ; Nason v. West, 78 Maine, 253; Hull v. Hall, 78 Maine, 114; Buzzell v. Baconia Man/. Co. 48 Maine, 113 ; Holden v. Fitch-burg R. Go. 129 Mass. 268 ; Ford v. Fitchburg R. Go. 110 Mass. 240; Mundle v. Hill Mfg. Go. 86 Maine, 400; Bee v. South. Pa,c. R. Go. 35 Pac. Rep. (Cal.) 572 ; Shanny v. Androscoggin Mills, 66 Maine, 427; Shear. & Redf. Neg. §§ 100, 108.</p> <p>3. Outside of scope of employment: Theisen v. Porter, (Minn.) 58 N. W. Rep. 265.</p> <p>4. Door the cause of the accident: Black on Proof and Pleadings in Accident Cases, § 26 ; 7 Am. & Eng. R. Cas. 414; 29 Bb. 309 ; 19 Bb. 400 ; 5 Bb. 628 ; 11 Bb. 115 ; 18 Bb. 130 ; 2 Bb. 85 ; Gom. v. Hackett, 2 Allen, 136.</p> <p>5. Cause of action shown : 31 Am. & Eng. R. Cas. 176; Bailing v. N. Y. G. R. R. Go. 49 N. Y. 521; Shanny v. Androscoggin Mills, 66 Maine, 427 ; 4 Am. & Eng. R. Cas. 637; 15 lb. 214, 218 ; Snow v. Housatonic R. Go. 8 Allen, 441; Whittaker v. Boylston, 97 Mass. 273 ; Parody v. Chic. <&c. li. Co. 15 Fed. Bep. 205 : Shear. & Eedf. Neg. § 96 ; Beach Contrib. Neg. 2d Ed. § 349, and cases cited.</p> <p>An involuntary nonsuit, after evidence has been given by the plaintiff, is not looked upon favorably by the courts, the Supreme Court of the United States and the courts of many of the states going so far as to hold that a nonsuit on trial cannot be granted against the will of the plaintiff. Blmore v. Gryrnes, 1 Pet. 469.</p> <p>While in this state it has been the practice to grant involuntary nonsuits, yet the right of the court to order them in the course of a trial to the jury has been exercised with a great deal of care. Appleton, C. J., in the Union Slate Company v. Tilton, 69 Maine, 244, says : "A motion for a nonsuit will not be granted wdien there is any evidence in the case competent to be submitted to the jury, tending to show the liability of the defendant.”</p> <p>The same justice in Lake v. Milliken, 62 Maine, 240, says : "In determining whether the nonsuit was rightly ordered or not, we must assume the truth of the proof offered, and regal’d it in the light most favorable to him [the plaintiff] ; for the jury might have so regarded it.”</p> <p>Libbey, J., in Baton v. Lancaster, 79 Maine, 477, says : "If there was any evidence which, if believed by the jury, would authorize a verdict for the plaintiff, a nonsuit should not have been ordered.”</p> <p>A motion for a nonsuit at law is analogous to a demurrer in equity ; and if, admitting all the facts proved, and all reasonable deductions from them, the plaintiff] on all the proof regarding” it in the light most favorable to him, ought- to recover, the non-suit ought not to have been granted.</p>

On report. The cases appears in the opinion. Counsel argued that there ivas no power to lay a supplemental tax, as no polls or estate were omitted by mistake from the first assessment. That it is not shown when the supplemental tax was laid, and only a tax laid on the date declared on in the writs can be collected in these suits. That it is not shown to have been laid during- the term of office of the old assessors.

On exceptions. The plaintiffs having obtained a verdict upon the note in suit, in the Superior Court, for Kennebec county, the defendant took exceptions. The case is stated in the opinion. The plaintiffs can claim no rights superior to those of Burn-ham. If Burnham is estopped, they are estopped. Defendant claims that Burnham is estopped, since the identical claim upon which Burnham was permitted to offer testimony had been merged in the judgment.

On mdtion and exceptions. This was an action of assumpsit, and the case w’as tried to a jury in the Superior Court, for Kennebec county, where a verdict of $372.80 was returned for the plaintiff.

<p>On exceptions.</p> <p>This was an action of replevin for certain live stock and farming utensils alleged to belong to the estate of Horace D. Ridley, the plaintiff’s intestate.</p> <p>The plaintiff claimed, and introduced testimony tending to show, that in 1884 the defendant conveyed to said Horace D. Ridley his farm in Athens, and that the said Horace D. Ridley mortgaged back the same farm on the same day, the condition of the mortgage being that the said Horace D. Ridley should support the said Henry Ridley and his wife during their lifetime ; and that as a part of the same trade, Henry Ridley sold all his personal property to the said Horace D. Ridley.</p> <p>The defendant claimed, and offered testimony tending to show, that the said personal property was not sold to the said Horace D. Ridley, but that the said Horace, by agreement, took the said property, and agreed to keep up the stock to its value at the time of said trade and to pay taxes on it for the use of it, the title in said personal property and in the various substitutions of it to remain in the said Henry Ridley ; and that part of the property replevied was either the same property referred to in their trade in 1884, or substitutions which had been made by the said Horace Ridley in accordance with their trade.</p> <p>An attorney at law, called for the plaintiff, testified that he made the writings between Henry and Horace Ridley; that after making the deed and mortgage, he got ready to make the writings about the personal property and a discussion ensued between the two as to the changes that would have to be made, and how' the writings should be made that would cover and hold when all these changes had been made ; and that it was agreed that the personal property should go to Horace, and that there should be no claim given back upon it; that there should be given to Henry Ridley a two hundred dollar note; which was done ; that no bill of sale of the persona] property was made ; that it was the expectations of the parties, as stated when they went to his office, that Henry should in some way retain a claim on the stock.</p> <p>The attorney then testified as follows ;—</p> <p>"Q. (By plaintiff’s attorney.) I want to inquire of you if you. had an interview with Henry Bidley at some time within two or three years in relation to this same property — this two hundred dollar note and the personal property ?</p> <p>"A. Yes, sir, I think about two years ago, Henry Bidley came to me and showed me the note and asked me — ”</p> <p>Mr. Savage, for defendant: "I suppose that communications which Henry Bidley made to Mr. Holman are not admissible.</p> <p>"Court. You made the note?</p> <p>"A. Yes.</p> <p>" Court. It wras delivered at that time ?</p> <p>"A. It was.”</p> <p>Against the objection of the defendant, the attorney was permitted to testify further as follow's :</p> <p>" Q. State what was said between you and Mr. Bidley.</p> <p>"A. I think it was two years ago [1891] this last summer that he came to me and showed me the note and asked me about collecting it. I told him it was then barred by the statute of limitations so it could not be collected. He then asked me if he could not hold some of the stock, I said to him : 'You know what the trade ivas ?’ He said : 'Yes, but I have never delivered the stock over to Horace.’ Then I asked him if it had not passed into Horace’s hands so there wasn’t any of the original stock left, and I think he was able to name one or two animals that had not passed over into Horace’s hands. I think that was the substance of the conversation that I remember.”</p> <p>The defendant was not permitted to testify, in contradiction to the attorney. The court found the title to the property to be in the plaintiff as administrator of said Horace D. Bidley, and ordered judgment accordingly.</p> <p>To the ruling of the presiding justice permitting the attorney to testify to the conversation between him and Henry Bidley in 1891, and communications made to him at that time by Henry Bidley, the defendant was allowed his exceptions.</p> <p>In a late case the Supreme Court of Missouri say : " The relations of attorney and client do not exist so as to render communications or statements privileged, until a proposal has. been made to engage the services of the attorney, and the' latter’s acceptance of the employment.” Hickman v. Green, 22 S. W. Rep. 455 ; S. C. 7 General Digest, 933-4, § 2250. No such proposal or acceptance, is shown in the case at bar.</p> <p>Testimony of an attorney is not to be excluded unless if extends to material information derived at the time from the client as such. Orosby v. Berger, 11 Paige, 378 ; ArbucMe v„ Templeton, 65 Vt. 209; Hoy v. Morris, 13 Gray, 520; Patten v. Moor, 29 N. H. 168; Day v. Moor, 13 Gray, 522-523. '</p> <p>This evidence added nothing new to the plaintiff’s side, and1 whether in, or out, would not affect the result. If it had any effect it was to help the defense by showing no delivery intended as such to Horace. Bales v. Horner, 65 Yt. 471.</p> <p>The interview with the attorney gives no idea that it was the purpose of Ridley to employ him in any legal capacity. It was-about seven years after the transaction took place, and knowing that he was aware of what took place at that time, and that he wrote the two hundred dollar note, he asks certain questions for his own information, without, so far as the case discloses, any purpose of retaining the witness as counsel. It was a casual conversation-, apparently, which might have occurred in the street, or post office, or town meeting, and related to a previous, transaction of years before, about which each party knew.</p> <p>The defendant went to his attorney to consult him in a professional capacity. "He showed me the note, and asked me about collecting it.” He then asked him about his rights in the stock, still seeking legal information from a lawyer.</p> <p>As the witness put it, the original trade was that the property should go to Horace. The defendant before this had introduced testimony to the contrary. So that was the issue in the case.</p> <p>The inference to be drawn from the witness’ testimony then is that, in the conversation which is objected to, the defendant admitted that the witness' version was correct, but sought to avoid the force of it by claiming a non-delivery. Then the witness testified that they had a further conversation, the substance of which was that all the stock had been delivered over into Horace’s hands except one or two animals.</p> <p>All communications made by a client to his counsel for the purpose of obtaining professional advice or assistance are privileged. Higbee v. Dresser, 103 Mass. 523; Bacon v. Frisbie, 80 N. Y. 394; Sleeper v. Abbott, 60 N. H. 162 ; Maxham v. Place, 46 Vt. 434; Snow v. Gould, 74 Maine, 540.</p> <p>They are entitled to protection whether they relate to a suit pending or contemplated, or to any other matter. The communication need not relate to litigation. McLellan v. Longfellow, 32 Maine, 494; Sargent v. Hampden, 38 Maine, 581 ; Boot v. Wright, 84 N. Y. 72.</p> <p>The attorney was permitted to testify to matters which happened afterwards, and to disclose what he claims the defendant said to him about whether the trade, made between the father and the son in the first place, had been carried into execution.</p>

Agreed statement. In addition to the facts stated in the opinion, the parties also agreed that with said policy there was delivered to the plaintiff a book called Premium Receipt Book,-’ for recording the weekly premiums paid on said policy, which book contained among other printed matter, Extracts from the rules, regulations, &c., of said company,” among which was the following: Under no circumstances can an application be written upon the life of a husband for the benefit…

<p>The facts are stated in the opinion.</p>

On motion. This was an action of trespass for ejecting and removing the plaintiff from the defendant’s street car by its servants. The plaintiff recovered a verdict for $1187.27, and the defendant brought the case to the law court on a general motion, besides alleging that the damages were excessive.

<p> Sales. Delay to Deliver. </p> <p>The defendant gave a written order for five thousand cigars, twenty-five hundred to be shipped at once, and the balance on call. Having waited nineteen days, and having heard nothing from his order, he countermanded it and bought cigars elsewhere. Held; that the delay was unreasonable, and that aD action to recover the price of the cigars was not maintainable.</p>

This was an action on a policy of fire insurance in which the jury returned a vei’dict for the defendant and the plaintiff took exceptions. The exceptions show the following facts : On the 27th day of May, 1892, the plaintiff took out a policy from the defendant company for three years at a premium of one per cent for three years on certain goods and chattels.

On exceptions. This was an action on the case for negligence, in which there was a verdict for the defendants. The plaintiff claimed that the injury to his premises, in Poland, was caused by the defendants’ negligent acts while burning and clearing a railroad location.

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

<p>On report.</p> <p>Bill in equity, heard on bill, answers and proof, praying that the defendants, a finance committee and the inhabitants of Eastport, be required to render an account of all sums received by them and contributed to the sufferers by the Eastport fire in 1886, and of all sums paid out by them to said sufferers, and a statement of what they have done with the balance remaining in their control, and that the Belief building, so-called, built with funds contributed for the sufferers by the fire, be sold and the proceeds of said sale be added to the funds in the hands of the committee, and not distributed among the sufferers by said fire ; and that all the funds now in hand, with such sums as have been paid to the town of Eastport to support paupers, and with such further sum as may result from the sale of the building-aforesaid, be placed in the hands of a receiver, to be by him distributed among the sufferers by said Eastport fire, your orators, as well as all others who shall show themselves entitled thereto and become parties to this suit, as the court by its master in chancery may direct.</p> <p>(Ausw'er.)</p> <p>The joint and several answers of Patrick Whalen, Noel B. Nutt, Alden Bradford and the inhabitants of the town of Eastport.</p> <p>The said defendants, answering, say :</p> <p>First: — They admit that on the fourteenth day of October, A: D. Í886, a large amount of property in said town of Eastport was destroyed by fire, but they deny that the plaintiffs,.or any of them, suffered large loss by reason of said fire, and if any of the plaintiffs suffered any loss whatever by reason thereof these defendants do not admit the same, but leave such plaintiffs to make proof of the same as they shall be advised, the facts relating thereto being much more fully within the knowledge of such plaintiffs than of these defendants ; and these defendants, further answering, especially deny that said plaintiffs, or either of them were, at the date of the filing of said bill, or at anytime prior thereto, in any condition of suffering or distress caused by said fire.</p> <p>Second: — These defendants, further answering, say they admit on the fifteenth day of October, 1886, and on divers dates thereafter, contributions in clothing, money and other supplies, aggregating a large sum, were sent to said Eastport; but they say that said contributions were sent for the purpose of relieving actual suffering and distress then existing in said Eastport as the result of said conflagration; and they deny that such contributions were ever intended by their donors to be used for the purpose of making good to persons who were not in suffering or distress, losses of property sustained by them by reason of that fire.</p> <p>Third: — And these defendants, further answering, say' that a relief committee was chosen, as stated in said bill, consisting of many of the prominent and active citizens of said town of Eastport, and containing many more members than are stated in said bill, and that an executive committee and a finance committee were also chosen, and that said finance committee consisted of Noel B. Nutt, Patrick Whalen and Alden Bradford, as stated in the bill; that all said contributions were received by said relief committee, and that during the fall of 1886, succeeding said conflagration, and the following - winter and spring, a large part of said contributions wore distributed by said committees among those who were entitled to receive the same.</p> <p>Fourth : —And these defendants, further answering, say that during said period from the date of said conflagration until the close of the month of March, 1887, the members of said committee gave their time and effort regularly, without compensation, to the work of distributing the funds and supplies which had been so received among those who were in any degree in distress or suffering caused by said fire; that said committees held regular meetings, considered every case as it was presented, obtained all information in regard to the same that could be reasonably procured, and at the close of said month of March, by the distribution of said funds and supplies, had relieved every instance of distress then existing in Eastport, according to their best knowledge and belief, which had resulted from said conflagration. There then remained of said relief fund undistributed the sum of twenty thousand dollars which said executive committee invested in the town of Eastport four per cent bonds, where it still remains, said bonds being now in the possession of Edward E. Shead, treasurer of said relief committee. Since the said thirty-first day of March, 1887, the income of said fund of twenty thousand dollars so invested in the bonds of the town of Eastport has been used, under the authority of said relief committee and said town of Eastport, in the relief of actual destitution and distress existing in said town of Eastport, and the principal thereof has remained untouched. In many instances of the destitution and distress so relieved, losses by said fire had been one of the causes of the necessity for such relief.</p> <p>Fifth : —And these defendants, further answering, say that, as many people in Eastport were left without homes by reason of the fire, it was determined by said committee, at an early date after the fire, to erect a relief building for their accommodation ; that by reason- of unexpected delays in procuring the lumber, owing to the early freezing of the river, the actual erection of the building was delayed until late in the season, but that said building was finally erected at an expense of about five thousand dollars upon land belonging to the United States Government in said Eastport; that said building was used for the benefit of sufferers by the fire so long as any actual destitution or distress resulting therefrom existed, but since that time has been used to furnish apartments and tenements, free from rent, to respectable and worthy poor persons in said town of Eastport, many of whom had met with losses by reason of said fire, and a portion of said building, during a part of the time, has been used as a place for keeping a primary school. And these defendants say that said building has been permitted by the United States Government to remain upon its lands without any payment of land rent whatever, and in its present position serves the useful and benevolent purposes hereinbefore stated without any corresponding expenditure, and at the same time, that such building for purposes of sale or removal from the lot on which it stands would be without any value whatever.</p> <p>Sixth: — And so these defendants say that the gratuities aforesaid given by benevolent persons, under the circumstances already stated, to the town of Eastport as aforesaid, for the relief of destitution, distress and suffering caused by the fire of October fourteenth, 1886, in that town, have been used and are being used under the authority of inhabitants of said Eastport, so far as practicable, directly , for the purposes for which they were given, and in so far as they were not required and could not be used specifically for the primary purpose for which they were intended, they have been used, and are being used by said inhabitants, and under their authority, for purposes which approximate as closely and are as nearly akin to the purposes for which they were directly given as it is reasonable or practicable to do ; not in any wray to relieve the town of Eastport from its legal obligation to support its poor, but as an additional fund to meet and provide for deserving instances of actual suffering, distress and destitution, as nearly related as possible to said fire, as the cause thereof, existing in that town; and these defendants deny that the plaintiffs, or either of them, are losers' or sufferers by the conflagration aforesaid in any such sense as to entitle them, or either of them, to make any claim whatever upon said fund.</p> <p>Seventh : —And these respondents, further answering, deny that any portion of the funds and supplies contributed as aforesaid, have ever been, or are being used for any purposes whatever foreign to those for which they were given, and further deny all and all manner of illegal or improper acts wherewith they are in any way by the said bill charged, and invite the strictest investigation of all their acts and doings relating thereto, and are ready to maintain and prove their allegations herein as the court shall direct, and pray to be hence dismissed with their reasonable costs and charges in this behalf sustained.</p> <p>Before filing of a replication, the defendants amended their answer by adding a demurrer to the sixth paragraph.</p> <p>The administration of these funds came properly and rightfully into the hands of trustees in Eastport, constituting, within such limitations as the court shall say, a domestic and local! tribunal for that purpose. Their action has been fair and honest, and according to their best judgment and the bill does not allege, and the case does not show, ground on which, at the suit of' these plaintiffs, such local administration will be superseded by the decree of the court.</p> <p>The gifts were not directly to individuals who had suffered! by the fire but to the persons to whom they were addressed, or who should rightfully act in the premises, for the due and proper relief of the suffering which the fire had caused. They were-gifts to. a community which had suffered great misfortune — and the manner of using the gifts was primarily and principally a matter for the community to decide.</p> <p>The case abundantly shows that it was the judgment of this committee in April, 1887, that the worthy cases of distress caused! by the the had been relieved and had disappeared ; that circum-' stances no longer existed calling for the immediate distribution of the residue of the fund. The committees believed that to. invest the remaining principal of the fund, and for the present to use only its income for tbe purposes of the trust, was a procedure' more in harmony with the intention of the donors than any other course it was practicable to pursue.</p> <p>All that the bill claims, substantially, or all that can be claimed in its support upon the evidence which has been taken, is that there should be an immediate distribution of this twenty thousand dollars instead of the use of the income of it only ; and such a distribution is demanded now, eight years after the fire, when it is obvious that the necessity for such distribution to relieve suffering caused by the fire cannot even be fairly claimed and when even the attempt to make such distribution in any such way as to meet the original purposes intended would be manifestly impracticable.</p> <p>If the object of this fund was to relieve present suffering and to tide over distress caused by the fire, the lapse of time which has intervened would afford á strong argument in favor of the present use of the income only of the fund rather than of the unnecessary and impracticable attempt, to distribute it.</p> <p>Who are the parties plaintiff who ask for this distribution and .under what circumstances do they ask ? No donor of the fund applies, no person who gave a dollar or contributed an article snakes this application to the court. The only description the plaintiffs give of themselves in their bill is that they suffered great loss by reason of the fire. No application was ever made to the town of Eastport, or to the city of Eastport, since it has become a city, to change the policy established by the committee in its management of this fund. No public meeting of citizens wras ever called in Eastport to direct a different policy or to change the constituent members of the committee, no effort alleged or made by the plaintiff to induce either the city or the citizens of Eastport to change the result, but a direct application made in the first instance to the court to give the relief asked for by the plaintiffs solely upon the ground that they are losers or sufferers by the fire.</p> <p>We submit that this ground is rvholly untenable; that the court will recognize the right of the city of Eastport and its citizens, the community which received these gratuities, to deal in the first instance with the management of this fund; that the gifts themselves, and the manner in which they were made, contemplated the action of such agencies in the first instance; that all presumptions are in favor of the validity of the action of such a domestic tribunal; that the whole subject, within proper limitations, is submitted to their judgment; that good faith and reasonable judgment are all that could, be required on the part of such committees or the municipality itself; that the exercise of such good faith and reasonable judgment removes them from the jurisdiction of the court, or rather, that the court will not assume jurisdiction over them so long as they keep themselves within these lines. When these committees and the municipality determine that there is no further immediate occasion for the use of this fund and that the purposes of the trust will be better served by capitalizing it and using only its income, are they not fairly acting within their own province in making that decision ; and is it for any person claiming merely the status of a sufferer by the fire to apply to the court to reverse that decision? It was an implied and an inherent term in the whole trust that the fund should be managed according to the judgment of a properly constituted committee. It is not the right of a sufferer by the fire to claim it merely in the right of such a sufferer, but only under such circumstances as commend themselves to the authorities making the distribution. It would be impracticable to deal with such a fund in any other way. The court cannot administer it, and if it should attempt it, by a receiver or other instrumentality, it is hardly to be supposed it could be so well done as by these local committees representing the best sentiment of the city.</p> <p>The evidence, even that for the plaintiffs, shows that the committees have not violated faith or proceeded otherwise than according to their own best judgment. The case does not proceed upon the ground that the plaintiffs have exhausted other remedies, or have attempted to do so, before applying to the court. The municipality of Eastport, or a public meeting of citizens such as originally constituted the committees, would seem to be the first court of appeal from the committees in such a case as this: because while the whole matter is informal, and necessarily must be so, and understood and expected to be so, even by the donors, still it must be for the municipality and the citizens, the community which suffered the misfortune and which the donors intended to aid and relieve, to say in the first instance what is to be done with the gifts ; and more than that, ive submit to the court, that their action must control and prevail and be final except in extreme cases. Neither upon the averments of the bill,— and our answer includes a demurrer,— nor upon the evidence in the case, are the plaintiffs entitled to the relief for which they ask.</p>

On MOTION AND EXCEPTIONS. This was an action brought on the following account annexed : Janies Grant to Alexander Duncan, Dr. To balance due on sale of lease of Deep Hollow Quarry, $72.00 Interest, 1.44 $73.44” Plea, genera] issue. The jury returned a verdict for the plaintiff and the defendant took exceptions, and filed a motion for a new trial.

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

On report. This was an action for false imprisonment brought by the plaintiff, an execution debtor, against two defendants, one being the attorney of the creditors and the other a disclosure commissioner. The case is sufficiently stated in the opinion.

<p> Dower. Deed. Lien. Trespass. </p> <p>A widow’s release of her right of dower, except to a party in possession or in privity of the estate, before it is assigned to her, is without effect.</p> <p>Where the defendant in accordance with plaintiff’s direction, purchased the widow’s dower before assignment, acting and intending to act for the plaintiff’s benefit, and took the deed without covenants in his own name for the plaintiff, who owned the residue of the premises, and paid the consideration therefor, Held: that the defendant did not thereby acquire an equitable lien upon the premises to secure his advances, nor any right to possession of the same, or to take any of the products of the land; but would be liable to an action of trespass quare clausum, if he entered upon the premises and cut grass thereon, without consent of plaintiff, who acquired the dower rights by levy after assignment and before the trespass.</p>

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

On report. This was a writ of entry to recover certain real estate in Athens, Somerset county. Writ dated August 16, 1893. The defendant pleaded the general issue, nul disseizin, with a brief statement. At the trial of the action the parties waived a jury, and submitted the case to the court with the right of exception. The following facts appeared in evidence: The plaintiff is the only child and sole heir of Horace D. Eidley, late of said Athens, who died June 14, 1893.

<p> Beplevin. Possession. </p> <p>Principle in preceding case applied.</p> <p>This was an action of replevin for hay cut on the premises described in the above action. The case ivas tried before the Court without the intervention of a jury, with a right to except. The facts reported in the exceptions, taken by the plaintiff, will be found in the foregoing case.</p>

On exceptions. This was an action of assumpsit based on an alleged contract as set forth in the following declaration. The plea was the general issue. After the plaintiffs had put in their evidence and rested their case, the presiding justice ruled that the evidence tended to show a separate contract with each plaintiff, and did not tend to show a single contract with both plaintiffs as alleged in the declaration, and thereupon directed an entry of nonsuit.

On exceptions. The defendant was found guilty upon the following indictment : Somerset, ss. — At the Supreme Judicial Court, begun and holden at Skowhegan, within and for the county of Somerset, on the third Tuesday of March in the year of our Lord one thousand eight hundred and ninety-four.

On motion and exceptions. This was an action on the case in which the plaintiff recovered a verdict for injuries received by him in alighting from the defendant’s passenger train.

On exceptions. This was an action of debt to which the defendant’s demurrer was sustained, and the plaintiff took exceptions to the ruling of the court. Where a statute does not in terms declare in whose name a suit shall be conducted for the recovery of a penalty for its violation, the prosecution must be in the name of the state, no matter who may be entitled to the penalty or forfeiture.

<p>On exceptions.</p> <p>This was an appeal from the decree of the judge of the court of insolvency, for the county of Androscoggin, allowing in part and disallowing in part a certain claim filed by the appellant, Mitchell, in his capacity as assignee of the estate of Isaac N. Haskell, an insolvent debtor, against the estate of the Brockway Manufacturing Company, an insolvent corporation. The appeal was heard in the court below, where it was dismissed, and the appellant took exceptions which are fully stated in the opinion.</p> <p>First exception: Counsel cited: Tibbetts v. Trafton, 80 Maine, 264; Millileen v. Morey, 85 Maine, 340, 342; Gusty v. Lowell, 117 Mass. 78.</p> <p>Second exception : In re Montgomery, 3 B. R. 424; In re Myrick, 3 B. R. 156; Morey v. Milliken, 86 Maine, 464; Perrin v. Keene, 19 Maine, 355 ; Holmes v. Robinson Manufacturing Go. 60 Maine, 201 ; McVicker v. Beedy, 31 Maine, 314; Strang v. Hirst, 61 Maine, 9 ; McAuley v. Reynolds, 64 Maine, 136; Bolster v. China, 67 Maine, 551; Gram v. Sherburne, 14 Maine, 48 ; Penobscot Boom Corporation v. Lamson, 16 Maine, 233 ; Freeman v. Fogg, 82 Maine, 408.</p> <p>First exception : The requirement of rule X is not one jurisdictional in its nature and might be waived. If such requirement can be waived at all, there can be neither reason nor justice in any other conclusion than that it was waived in the present case. Going to the hearing without objection ; testimony being introduced for and against the objections; the judge allowed to make his decree without having the matter called to his attention for his determination; an appeal taken, and term after term of the appellate court allowed to elapse before the motion to dismiss is filed; must be conclusive evidence of a waiver on the paid of the appellant, if such a waiver is possible.</p> <p>Where jurisdiction and power to act exist, and the only objection to their exercise is one intended for the benefit and protection of the party complaining thereof, such objection must be taken at the earliest practical opportunity or it is waived. Thompson on Trials, § 1438 ; Warren v. Glynn, 37 N. H. 340; Folsom v. Garl, 5 Minn. 333 ; Otis v. Filis, 78 Maine, 75 ; Clapp v. Balch, 3 Maine, 216. Amendment discretionary and not subject to exception. Garter v. Thompson, 15 Maine, 464; Solon v. Perry, 54 Maine, 493 ; Place v. Brann, 77 Maine, 342; Cameron v. Tyler, 71 Maine, 27.</p> <p>Second exception : In a case coming from the court of insolvency the appellate court must act upon the matter as it comes from the lower court, and has no power to amend the claim in the manner suggested. It is the lower court which controls the proceedings, and in which finally the proceedings are entered, and from which judgment issues. This court stands on a different basis from inferior courts for the trial of actions. We claim, then, that any amendments in process must originate in the lower court, and that the records of the lower court itself must in the first instance show such amendments. Jay cox v. Green, 13 N. B. R. 122.</p> <p>The issue in the appellate court must be the same as in the court below. Jaycox v. Green, 13 N. B. R. 122 ; Re Kellogg, 104 N. Y. 648 ; Re Hood, 104 N. Y. 103 ; Simmons v. Goodell, 63 N. H. 458.</p>

On exceptions. This was an action on the case for an alleged libel of the plaintiff, published in a newspaper, in which the jury rendered a verdict for the plaintiff, giving him only nominal damages. The plaintiff took exceptions to the admission of evidence and instructions to the jury which are stated in the opinion.

On report. This case came up to the February term, 1894, of the court below on appeal by the defendant from the Bangor municipal court where he was convicted on complaint, December 30, 1893, upon a plea of not guilty, for that the defendant on said day, at Bangor, did have in possession fifty trout with intent, then and thereto sell the same, and did then and there sell said trout, said thirtieth day of December, being then and there close time on said trout.

On exceptions. The defendant was indicted for keeping a common nuisance and filed in bar a plea of former conviction which was overruled, and he thereupon took exceptions. The case is stated in the opinion.

On report. Bill in equity, heard on bill and answers, to determine the validity of an assessment for taxes made in 1891 by the commissioners of Piscataquis county upon the unincorporated lands comprising what was formerly the town of Elliotsville, its charter having been repealed in 1858. At the time of the repeal of the town charter, its territory included a part of what was formerly the town of Wilson, and in which the plaintiff’s lands wei’e situated.

On motion and exceptions. Besides the general motion for a new trial, the defendants took exceptions, which arose in the following manner : This was an action on the case to recover tolls, accruing under chapter 174 of the private and special laws of 1891, earned during the seasons of 1891 and 1892, for booming and rafting logs at the plaintiff’s boom in Machias; and also for special services rendered in rafting and sorting logs of the defendants’ by kinds.

On report. This was an action of assumpsit to which the defendant pleaded the general issue, and also filed a brief statement of further defense.

<p>Intox. Liquors. Sale. Interstate Commerce. Constitutional Law. B. S., a. 27, § 56. Act of Congress, August 8, 1890.</p> <p>Where intoxicating liquors are bought in another State, with the intention of selling- them in this State in violation of law, the vendor cannot maintain an action to recover the purchase price in any of the courts of this State, by reason of R. S., c. 27, § 56. And it is immaterial whether or not such vendor knew of the illegal intention upon the part of the purchaser or in any way participated in the same.</p> <p>The statute is not in violation of that clause of the Federal Constitution, which gives Congress the power to regulate commerce between the states; and was not, prior to the act of Congress, approved August 8, 1890, making-interstate commerce relating- to intoxicating liquors subject to the police powers of the several states.</p> <p>If liquors were bought in another State, prior to the act of August 8, 1890, with intent to sell them in this State in the original packages, it would not, at that time, have been any violation of the law. But the court finds that the purchaser of these liquors, bought before August 8, 1890v did not intend to sell them in the original packages, but did intend to sell them at retail and in violation of law.</p> <p>j&eservey v. Cray, 55 Maine, 54D, affirmed.</p> <p>McG-lincliy v. Winchell, 63 Maine, 31, affirmed.</p>

On exceptions. This was an action brought by the holder of an unindorsed note in the name of the executrix of the payee. It was tried before the Superior Court, Cumberland county, without a jury and judgment was rendered in favor of the defendant. The plaintiff then took exceptions to the rulings in that court, which are stated in the opinion.

On report. The case is stated in the opinion. Substantial certainty in the notice is all that is required. Sufficient if not misleading. Spellman v. Ohicopee, 131 Mass. 443 ; Welch v. Gardner, 133 Mass. 529 ; Chapman v. Nobleboro, 76 Maine, 427 ; Blackington v. Rockland, 66 Maine, 334.

On motion. This was an action of assumpsit to recover the purchase price of a pair of oxen sold by the defendant to the plaintiff, and which the plaintiff claimed were not delivered in accordance with the terms of the sale; The verdict was for the plaintiff. The case appears in the opinion.

<p>On exceptions.</p> <p>This was an action brought to recover damages for the seduction of the plaintiff’s daughter. Plea, general issue. The jury returned a verdict of one thousand dollars for the plaintiff.</p> <p>The defendant took exceptions to the admission of testimony, and the refusal of the presiding justice to give requested instructions, as appears in the opinion.</p> <p>Distinct facts made by parties in negotiations for a compromise are admissible : Gole v. Gole, 33 Maine, 542 ; Sanborn v. Neil-son, 4 N. H. 501; Hamblett v. Hamblett, 6 N. H. 333 ; Eastman v. Amoslceag Go. 44N. H. 143 ; Harrington v. Lincoln, 4 Gray, 563 ; Gerrish v. Sweetsir, 4 Pick. 374; Akers v. Demond, 103 Mass. 318 ; Durgin v. Somers, 117 Mass. 55, and cases cited; Emerson v. Boynton, 11 Gray, 395 ; Dickinson v. Dickinson, 9 Met. 471; Abbott v. Andtews, 130 Mass. 145 ; Hartford Bridge Go. v. Granger, 4 Conn. 142 ; Fuller v. Hampton, 5 Conn. 416 ; Travis v. Barger, 24 Barb. 614; Evans v. Smith, 17 Am. Dec. 74; Manistee National Bank v. Seymour, 7 West. Rep. 178 (Mich.). Webber v. Dunn, 71 Maine, 331, when carefully examined, will not be found to conflict with the above authorities.</p> <p>The fact disclosed by the testimony of the juryman has some tendency to destroy the presumption of innocency which the law, at the start, throws around the defendant. Therefore it is admissible. Taylor v. Gilman, 60N. H. 506 : Egan v. Bowker, 5 Allen, 449 •, Hustings v. Stetson, 130 Mass. 76; Morgan v. Frees, 15 Barb. 352 and cases cited.</p> <p>Refusal of the court to instruct the jury that" unless the services rendered by the daughter were such as the plaintiff could command and were not voluntary on her part the plaintiff could not recoverEmery v. Gowen, 4 Maine, 33 ; Mercer v. Walmsley, 9 Am. Dec. 486; Vossel v. Gole, FI Am. Dec. 136; Davidson v. Abbott, 52 Yt. 570; Bartley v. Richtmyer, 53 Am. Dec. 338; Herring v. Jestic, 2 Houst. (Del.) 66 ; Martin v. Bayne, 9 Johns. (N. Y.) 388.</p> <p>In an action for seduction the plaintiff cannot prove, in aggravation of damages, that the defendant had procured an act of abortion on the daughter. The action cannot be based upon the commission of the seduction alone, no matter how wrongfully done, but must be based upon the loss of service of the daughter. Addison on Torts Yol. II, 513; Klapper v. Brommer, 26 Wis. 372.</p> <p>There was no testimony in this ease of any acts of criminal intercourse between the defendant and the plaintiff’s daughter in April, 1892, or prior thereto. This testimony was evidently introduced by the plaintiff to aggravate the damages and not for the purpose of proving the acts alleged in the plaintiff’s writ, and was therefore irrelevant and inadmissible.</p> <p>Offer of compromise : An admission of a fact not made simply because it is a fact, but expressly or clearly for the sake of and as a part of an attempted compromise, is not competent evidence in a subsequent action against the party making it. Cates v. Kellogg, ■ 9 Ind. 506 ; Harrington v. Lincoln, 4 Gray, 563 ; Louisville, etc. II. It. v. Wright, 7 Am. St. Rep. 432, at 442.</p> <p>Conversation while engaged in the endeavor to settle difficulties is privileged and not to be used against either party, unless one of the parties admits a fact because it is a fact. Hart-Bridge Co. v. Granger, 4 Conn. 142 ; Strong v. Stewart, 9 Heisk. 137 ; Rideout v. Hewton, 17 N. H. 71; Wis. St. Bank v. Hutson, 11 Wis. 371; 39 Mich. 274; 64 Ind. 545. Testimony o/juror collateral and related to a different case. 1 Greenl. Ev. § 52 ; Hubbard v. R. R. Co. 39 Maine, 506; Branch v. Libbey, 78 Maine, 321; Parker v. Portland Pub. Co. 69 Maine, 175.</p> <p>If the daughter is of age, some act of service is necessary on the part of the daughter to enable the father to maintain the action ; but however slight the act of sendee may be, it must be a real genuine service, such as the parent may command. 2 Addison on Toi’ts, Wood’s Ed. 514, note and cases; 2 Greenl. Ev. § 572.</p> <p>Had the plaintiff’s daughter, although of age, resided in the plaintiff’s family and in return for her board or other support done the acts of service mentioned above, the plaintiff could recover ; but the evidence in this case shows that she supported herself from her own wages earned in the mills, and whatever acts of service she performed as a member of her father’s family were purely voluntary on her part, and that the father had no right to command the performance of them.</p>

On report. This was an action on the case by the minor plaintiff, a girl nineteen years old, to recover damages for injuries received by being struck by an east bound train while passing, about nine o’clock, P. M., July 17, 1893, along Main street inBiddeford where it crosses the defendant’s railroad at grade.

<p>Agreed statement.</p> <p>The case is stated in the opinion.</p> <p>This right to a sluice was appui’tenant to the lower property, not by virtue of anything in the reservation itself, but by legal intendment from its situation -and relation to that property. But a way appurtenant to a particular lot cannot be used for any other. Davenport -v. Lamp son, 21 Pick. 72 ; French v. Mars-ton, 4 Poster, 440; Mendell v. Delano, 7 Met. 180; Gh'een v. Canny, 187 Mass. 64; Moulton v. Faughl, 41 Maine, 298 ; Dennis v. Wilson, 107 Mass. 593.</p> <p>Defendants are using this sluice to carry logs to Basin Mills, on a lot a mile below, on land never owned by Emerson, and to which this easement is not and cannot be appurtenant.</p> <p>The reservation was made for the use of saw mills that might be built on the lower privilege, and resembles Blake v. Clark, 6 Greenl. 436, and Moulton v. Trafton, 64 Maine, 218. No</p> <p> </p> <p>mills have stood on the lower mill site since 1876. Plaintiffs now own both the upper and lower properties — the servient and dominant estates. The easement would be merged if it had not ceased to be. The Emerson reservation is functus.</p> <p>Mayo’s reservation "as now had and enjoyed” of sluicing logs through the pond to the Basin Mills, "to said Mayo or his assigns,” creates an easement in gross. Amidon v. Harris, 113 Mass. 59. As reserved by Mayo it was not appurtenant so long as he retained the right and did not own the Basin Mills. It was for his life only. Curtis v. Gardner, 13 Met. 457 ; Sedgwick v. Laflin, 10 Allen, 430; Huffum v. Hutchinson, 1 Allen, 60-61; Dennis v. Wilson, 107 Mass. 593 ; Bean v. French, 140 Mass. 229. Mayo died in 1876, and the right expired with him. Not an exception. Ashcroft v. Eastern B. B. Co. 126 Mass. 196.</p> <p>The reservations below do not name any particular point, place or property, in connection with which the right reserved is to be exercised. They are purely easements in gross, to be exercised as the grantor will. Such easements have nothing to lean upon but themselves. They have not the advantage of a terminus ad quem.</p> <p>But the Mayo reservation is of the right " as now had and enjoyed.” The case finds that the mills which existed wdien that log sluice was built, and which supported it on either side were destroyed by -fire ; and that defendants have since entered upon the premises and built a structure fifteen feet wide, overlapping the space reserved for the old sluice five feet on either side — that is, occupying five feet of the old Emerson mill site, not before used for a sluice, making ten feet or more of that privilege taken, which is the trespass complained of in the first count of the writ; and five feet of the Treat privilege, ivhich is the trespass complained of in the second count.</p> <p>The sluice was then the necessary passage way for logs to the Union Mills below — Mayo supperadded this easement in favor of the Basin Mills — but, as we have said, it was subject to the limitations of that sluice way, no right of constructing some other sluice, however necessary it might become, was in that reservation. Hoskins v. Brown, 76 Maine, 70.</p> <p>When the grantor adds words " as now or heretofore used by me,” or words of similar import, the inquiry is not as to what is necessary but what is in use at the time, and it is to the use and not to the necessity that the evidence should be directed.</p> <p>If it becomes impossible to exercise a right reserved, the easement is extinguished. Ballard v. Butler, 30 Maine, 94; Hancoek v. Wentworth, 5 Met. 446.</p>

<p> Trespass. Trover. Possession. Title in Third Party. Deed,. Way. </p> <p>In an action of trover for the value of grass cut from that sicle of a highway next to plaintiff’s farm, the question does not necessarily involve the legal title to the land, but only the possession.</p> <p>Mere possession of land is sufficient to sustain an action of trespass quare clausum, against a person having neither title nor possession; so of trover for the value of grass cut from such land.</p> <p>The possession of personal property carries with it the presumption of title and enables the possessor to maintain trover against any person except the rightful owner.</p> <p>And it is no defense in such action- to set up title to the land in some third person unless the defendant can justify his acts by authority from such party.</p> <p>A motion for a new trial cannot be considered when there is not a full report of the evidence.</p>

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

On motion. Assumpsit on an account annexed to the writ, in which the balance claimed is $552.19. The action was originally against William P. Hurley and FrancesE. Hurley, co-partners under the firm name of the Rock-land Lime Company. The defendant, William P. Hurley, having been adjudged an insolvent debtor, and the insolvency proceedings being still pending, the plaintiff discontinued as to him.

In equity. On appeal and exceptions by defendants. This was a bill in equity in which the plaintiff claimed that the late Peter G. Bradstreet of Gardiner, Maine, died intestate, but before his death instructed his brother, William W. Bradstreet, who in case of such intestacy would be the sole heir to the property of the deceased, that an annuity .of one thousand dollars annually to be paid according to the terms set forth in the bill in equity was given to the plaintiff out…