Volume 88 — Maine Reports

On exceptions. The case appears in the opinion. At common law a devise or grant to husband and wife created a tenancy by the entirety and the survivor took the whole, and this rule has been adopted in this state, notwithstanding R. S., c. 73, § 7. Harding v. Springer, 14 Maine, 407. So recognized in Stetson v. Eastman, 84 Maine, 366.

<p>Way. Beam'd. Jurisdiction. B. 8., c. 18, §§ 14-19.</p> <p>However faulty the record of county commissioners’ proceedings in laying out a town way, if it can be reasonably inferred from the record, (I,) that a petition was presented to the municipal officers by one or more inhabitants of the town, or by one or more owners of cultivated land therein, asking for the laying out of the way; (2,1 that the municipal officers neglected or refused to lay it out; and (3,) that some of the same petitioners within one year thereafter, presented to the county commissioners at a regular session a petition stating the above facts, and alleging that the neglect or refusal of the municipal officers, was unreasonable, the record is a sufficient basis for the procedure of the commissioners, as against collateral attack.</p> <p>Held-, that from the record in this case, the above jurisdictional facts can be reasonably inferred.</p>

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

Agreed statement. This was an action wherein the plaintiffs, M. S. Goodrich and Fred E. Withee, co-partners in the business of physicians and surgeons in Waterville, seek to recover for professional services and medicine, an amount of forty-one dollars and fifty cents, the same having been furnished to a woman pauper of said Waterville.

On exceptions. This was an action upon the case to recovei' damages alleged to have been sustained by reason of the negligence of the defendants, and resulting in the death of Ralph S. Sawyer, the plaintiff’s intestate.

<p>On exceptions.</p> <p>This was a petition for mandamus to compel the defendant to deliver to the complainant all books, papers, records, etc., appertaining to the office of city clerk of Waterville, the complainant alleging that he was duly elected to that office, which allegation the defendant denied ; the complainant further alleging that in the election of subordinate city officers in the city of Waterville, the mayor of said city could not participate except where each candidate had an equal number of votes.</p> <p>In the hearing before the justice before whom the proceedings pended, the following rulings, findings and decrees were made :</p> <p>1. That in the election of said subordinate officers, said mayor was not entitled to vote unless each candidate, had received an equal number of votes.</p> <p>2. That the vote cast by the mayor at the election of a city clerk on March 27th, A. D., 1895, was illegal.</p> <p>3. That the peremptory writ of mandamus be issued.</p> <p>To all which rulings, findings and decrees, the respondent took exceptions.</p> <p>The case is stated in the opinion.</p>

<p>On report.</p> <p>This was a bill in equity, heard on bill and answers and reported to the law court, to determine the title to the property named in the first clause in the will of Josiah A. Judkins, late of Farmington, viz : a construction of the first clause in the will as to the devise and bequest to Sila Judkins, wife of the testator. The bill was brought by the plaintiff as executor of the will, who is an heir and legatee under the will, joined by all the other heirs and legatees, against the defendants who are named in the first clause of the will, and children of a sister of the testator’s wife.</p> <p>The case is stated in the opinion.</p>

On report. This was a bill in equity, heard on bill and demurrers of the defendants severally ; the parties stipulating that, if the demurrers were overruled, the defendants might answer further.

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

On motion and exceptions. This was an action of assumpsit for non-delivery of goods sold, and an independent and collateral, verbal guaranty on the part of the defendant that the goods and chattels, so sold and described, comprised all and the same that were at Winter Harbor in October, 1890, some seven months before the sale. Plea was the general issue. The verdict was for the plaintiff.

<p>On report.</p> <p>Bill in equity, beard on bill, answers and proofs.</p> <p>The case is stated in the opinion.</p>

This was a writ of entry to recover that portion of the roadbed, railroad, rolling stock and appurtenances of the Somerset Railroad Company, situate in the county of Kennebec, being all that part of said railroad and appurtenances situate in the county of Kennebec ; a similar writ of entry being brought at the same time in the Supreme Judicial Court of Somerset county to recover that part of said railroad and its appurtenances situate in said Somerset county.

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

On report. These were actions of assumpsit brought by the plaintiff, Frederick S. Richmond, for the benefit of the American Bobbin, Spool & Shuttle Company against the Phcenix and Liberty Insurance Companies for the recoveiy of a loss under three policies in the Phoenix, one being called the lost policy” for $500, and one policy iu the Liberty Insurance Co. for $750.

On exceptions. This was an action of assumpsit to enforce a lien on the defendants’ house. The declaration in the writ contained a single count upon an account annexed. The account annexed is as follows : November 10, 1894. Joseph Cote and Agnes Cote, To Theophile Turgeon, Dr. To Balee due on account for labor performed and materials furnishe.d, as contractor for wood work, for the erection and. construction of the above building, as per agreement, $725.00 Cr. 1894.

On motion and exceptions. This was an action of replevin of four cows tried to a jury in the Superior Court, for Kennebec county, and in which the plaintiff obtained a verdict. The defendant, an officer, who had seized the cows on an execution against the plaintiff’s wife, as her pi’operty, moved for a new trial and took exceptions to a portion of the charge of the presiding justice as appears in the opinion.

<p>On report.</p> <p>The case appears in the opinion.</p> <p>This was an action on the case, brought under the statute of 1887, c. 137, § 12. Plea, general issue.</p> <p>(Declaration.) "In a plea of the case, whereas the said plaintiff on the 22nd day of April, 1893, at said Augusta, by the-consideration of our Judge of our Superior Court, holden for- and within our county of Kennebec, aforesaid, on the first Tuesday of April, 1893, recovered judgment against one Alice Weeks, of said Waterville, for the sum of one hundred forty-five dollars and forty-one cents debt or damage and nine dollars ninety-three cents costs of suit, as by the record thereof now remaining in our said court more fully appears; and whereas on the thirty-first day of May, 1893, said plaintiff presented a petition to Frank K. Shaw, Esq., a disclosure commissioner, within and for our county of Kennebec, duly appointed by the Supreme Judicial Court praying him to issue a'citation for disclosure to said Alice Weeks and said commissioner granted said prayer and issued a citation commanding the said Alice Weeks to appear before him at the Municipal court room, in Waterville, on the first day of June, 1893, at ten o’clock in the ■forenoon for the purpose of making a full and true disclosure of Ml her business and property affairs in accordance with the provisions of chapter 137 of Public Laws of 1887 of Maine. Said citation was duly served and in obedience thereto said Alice Weeks appeared at the time and place aforesaid and dis-. closed that she was the owner of one top-carriage valued at $50 and five cows valued at $200, all being then in the possession of this defendant, the said Frank N. Weeks. Whereupon the said disclosure commissioner decreed that said petitioner have a lien for thirty days on so much of said property as was not exempt from attachment and seizure on execution and the plaintiff alleges that none of said property was then exempt from attachment and seizure on execution. And afterwards on the 21st day of June, 1893, James P. Hill, a deputy of the sheriff of Kennebec county having in his hands for collection the execution issued on said judgment in favor of Mary C. Wing, by virtue of said execution and the disclosure commissioner’s certicate thereon endorsed, granting a lien as above set forth, demanded of said Frank N. Weeks the said top-carriage and the said five cows; but the said Frank N. Weeks, then and there being in possession of said property and under a duty to surrender it to said officer on demand and having no lien or other reason for not so surrendering it, being unmindful of his said duty and disobedient to the decree of said commissioner and the statute in such case made and provided, refused then and theie to surrender said property and concealed it and kept it from coming' into the hands of said officer as by law it should have done ; wherefore, and by force of the statute in such case made and provided, the said Frank N. Weeks has forfeited to the said plaintiff double the amount due on said execution to wit, double the sum of one hundred fifty-five dollars and forty-nine cents being the sum of three hundred ten dollars and ninety-eight cents.</p> <p>"Yet, though often thereto requested,” etc. . . .</p> <p>The defense, pendency of a prior action involving the same question raised here as to a portion of the property, can be shown only in abatement. Small v. Thurlow, 37 Maine, 504.</p>

On report. This was a libel for divorce filed in the Superior Court, for Kennebec county. The allegation relied on as a cause for divorcé was utter desertion without reasonable cause for three consecutive years next prior to the filing .of the libel. The evidence was taken out before the presiding judge, and his report of the facts, as found by him, was submitted by the parties to the Law Court for it to determine whether or not they show legal cause for divorce.

On report. Bill in equity, heard on bill, answers and proof. This was a bill of interpleader brought by the Bath Savings Institution against the defendant, Hathorn, as administrator of the estate of Henry Walker, deceased, and against Alice B. Files, to determine the title to a certain deposit in that institution.

On report. This was a bill in equity, heard on bill and answers, to obtain the construction of the will of Edward Mansfield, of Orono, Penobscot count}’. The following course of procedure was adopted by the parties, and the case certified by agreement to the Chief Justice under the provisions of R. S., c. 77, § 43 : The complainants read the bill and the respondents read the different answers.

On exceptions. The case is stated in the opinion. The legislature may pass retrospective statutes affecting remedies only. Qoffin v. Rich, 45 Maine, 507. No vested rights are affected, because none existed.

On report. These were two bills of interpleader brought by the Norway Savings Bank to determine the ownership of two deposits in that bank, and were heard on bills, answers and proof. The case is stated in the opinion. The circumstances all show that, at the time of the deposit,, Mrs. Reed intended to make it in trust for the Milletts. There-is no adverse argument to lie drawn from her retention of the-deposit books. Minor v. Rogers, 40 Conn. 512.

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

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

<p> Probate. Appeal. Costs. P. S., o. 63, §'30. </p> <p>After a final decree of this court, affirming a decree of the Probate Court as to the settlement of an account-of a testamentary trustee, a Judge of Probate has no power, in the settlement of a subsequent account, to allow costs incurred and counsel fees for services rendered in the settlement of the prior account and in the prosecution of an appeal from the decree of the Probate Court in relation thereto.</p> <p>The whole subject of costs and the allowance of counsel fees in all contested • cases in the original or appellate court of Probate, rests in the discretion of the court, but that discretion must be exercised in the proceedings in which the costs were incurred and the services of counsel rendered.</p> <p>The question of the allowance of costs in the settlement of an account in the "Probate Court and in an appeal'from the" decree of the Probate Court, being necessarily-involved in that proceeding, the final decree, whether it allows costs and counsel fees to either party or is silent upon the subject, is conclusive upon the whole question.</p> <p>See Mattoelcs v. Moulton, 84 Maine, 545.</p>

Agreed statement. This was an action of assumpsit, brought in the Superior Court, for Cumberland county, under R. S., c. 64, § 53, ande. 66, § 14, to recover for a burial casket, etc., and the personal services of the plaintiff, as an undertaker, rendered at the funeral of the defendant’s testatrix.

On report. Petition for certiorari submitted to the law court on petition, and record of county commissioners, which the parties agreed should be considered-an answer. The case is stated in the opinion. The petitioner has proved that the water company has never earned a dividend, nor even its running expenses, and had no assets except its plant taxed to the corporation. Nothing remained to give value to its shares. The contract was valid.

On report. Bill in equity, heard on bill, answer and master’s report, praying for a sale of property owned in common because a partition was incapable ; also for contribution for necessary repairs. The case is stated in the opinion.

<p> Deed. Cancellation. Equity. </p> <p>If a party can read, it is not open to him, after executing a deed, to insist that the terms of it were different from what he supposed them to be when he signed it.</p> <p>If equity will ever relieve one who has entered into a transaction under a misapprehension of its effect, when the other party merely failed to correct such misapprehension, there being no such peculiar relations between the parties as to place the one who remains silent under any unusual obligation, the principle is well settled that such party who remains silent must himself have appreciated the legal effect of the transaction and must have known that the other was acting in ignorance of such effect.</p>

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

On exceptions. The case appears in the opinion. Counsel argued that the State cannot by legislation take from the Lewiston Municipal Court its power of naturalizing foreigners, and that the court is one of common-law jurisdiction. Dean, PeVr, 83 Maine, 489. , It is one of the courts to which Congress said an alien might make application for admission to citizenship.

On exceptions. Bill in equity, praying that the plaintiff might be discharged as trustee in a certain trust deed and for the appointment of a new trustee. The bill having been dismissed in the court below, for want of jurisdiction on the ground that the trust was created outside the State, and none of the parties interested being citizens or inhabitants of the State, the plaintiff took exceptions to the decree dismissing the bill.

<p>On report.</p> <p>This was an action of trespass for false imprisonment against the defendant Ulmer, of Eockland, county of Knox, a trial justice, and John L. Thompson, of Newcastle, county of Lincoln, a game and fish warden.</p> <p>June 3, 1893, the plaintiff, a resident of Pittston, in Kennebec county, was arrested at his home by the defendant Thompson on a warrant issued by the defendant Ulmer at Eockland, on the preceding day, upon Thompson’s complaint for maintaining an illegal fish-weir in Dresden, Lincoln county, extending into Eastern river. The plaintiff was taken to Eockland upon this process, found guilty and sentenced to pay a fine of fifty dollars and costs taxed at twenty dollars and forty-six cents, which he paid and was thereupon discharged. The statute, 1891, c. 95, § 18, under which the defendants justified is as follows : " Sec. 18. Officers authorized to enforce the fish and game laws, and all other persons, may recover the penalties for the violation thereof in an action on the case in their own names, or by complaint, or indictment in the name of the State; and such prosecution may be commenced in any county in which the offender may be found, or in any neghboring county.”</p> <p>The defendants further relied, in their argument, on the stat. 1885, c. 285 ; and the defendant Thompson, as a warden, on P. S., c. 40, § 40.</p> <p>The trial justice in Knox county had no jurisdiction by statute over this plaintiff, as Knox is not next or contiguous to Kennebec, Lincoln intervening. Neighboring means next or contiguous. His jurisdiction is derived from statute, and there are no presumptions in favor of inferior courts. Martin v. Kales, 18 Maine, 23 ; ITersom’s case, 39 Maine, 476 ; State v. Whalen, 85 Maine, 469, and cases. When claiming any right, or, exception, under his proceedings, he must show affirmatively that he acted within his jurisdiction. Thurston v. Adams, 41 Maine, 423. Kule of interpretation : Winslow v. Kimball, 25 Maine, 495.</p> <p>The object of the law was to enable an officer, if he found a violator of the law a long distance from a magistrate in the county in which the offense was committed, or the defendant found, to take him across the border into the next county, where the court might be located but a short distance away, thereby saving expense and time, both to the defendant and the State ; e. g., an 'offender might be found in Somerset county just across the line from Eustis, in Franklin county, where there is a trial justice, while the nearest magistrate in Somerset would be North New Portland, twenty or thirty miles away. To meet such a case as this was the sole purpose of the law. Persecution instead of prosecution was not the intention of the Legislature in enacting this law ; but persecution wilful and oppressive was the purpose to which the law was put in the case at bar.</p> <p>Statute iu derogation of common law : Dwelly v. Dwelly, 46 Maine, 379 ; People v. Palmer, 109 N. Y. 110; S. C. 4 Am. St. Rep. 423 ; Dunn v. Met. D. R. Co. 119 N. Y. 540.</p> <p>When criminal statutes admit of two constructions, the one most favorable to the defendant must be given : 1 Bish. Crim. Law, § 139; Exparte McNulty, 77 Cal. 164: S. C. 11 Aui. St. Rep. 257; DurJcee v. Janesville, 28 Wis. 464; S. C. 9 Am. Rep. 500.</p> <p>Counsel also argued that the act of 1891, permitting an offender to be taken from his own, or the county where the offense is committed, to. an adjoining county for trial, is contrary to the Maine Constitution and § 1,14th Amendment of U. S. Constitution, as not being due process of law. Eames v. Savage, 77 Maine, 212, and cases.</p> <p>Counsel also cited : Woodbridge v. Connor,. 49 Maine, 353; Vinton v. Weaver, 41 Maine, 430 : Gurney v. Tufts, 37 Maine, 131, and cases ; Wood v. Graves, 144 Mass. 365.</p> <p>The act of 1891 was intended to enlarge the jurisdiction of trial justices, besides that conferred by stat. 1885, c. 258. The law under which a trial justice acts may be unconstitutional and void, and still he is not liable in torts for his acts. Moak’s Underhill Torts, 191, and citations. If he had a general jurisdiction of the subject upon which he acted, he would not be liable, if he exceeded his jurisdiction. Lang v. Benedict, 73 N. Y. 12 ; Halloclc v. Doming, 69 N. Y. 238 ; Knell v. Brisco, 40 Md. 414.</p> <p>If this plaintiff had raised the question of the constitutionality of this act, Mr. Ulmer, in his judicial capacity, could have decided it; and even if his decision had been a wrong one, the law would hold him harmless. The plaintiff might also have raised the question that this statute gave Mr. Ulmer no jurisdiction of the subject matter involved. The statute certainly gave an enlarged jurisdiction ; and Mr. Ulmer, after a careful examination of it, claims jurisdiction and acts in the premises,— acts without malice, fraud or corrupt motive. Certainly, in a case of that kind, even if he acted in excess of his real jurisdiction the law ought to protect him in his judicial act as fully as it would if he acted on a statute which was void ab initio. This would not be an assumption of jurisdiction where none in fact existed ; it would only be acting by reason of an honest mistake as to authority in excess of areal jurisdiction, a mistakeasto extent, and such a mistake as a judge of a court of a much higher grade could be readily pardoned for making. Counsel also cited : Cool. Torts, c. 14 ; Gifford v. Wiggins, 18 L. R. A. 356 (Minn.).</p> <p>The defendant, Thompson, acted in his official capacity, only, and by express authority given him by the statute provisions of this State. R. S., c. 40, § 40. It is there provided that the governor "may appoint wardens, who shall enforce all laws relating to game and the fisheries, arrest all violators thereof, and prosecute all offenses against the same ; they shall have the same power to serve all criminal processes against such offenders as sheriffs, and shall be allowed the same fees.” His authority is co-extensive with the State. When a warrant which appears to be regular upon its face is placed in his hands, it is not a matter of choice -with him whether he will obey its behests or not. The law gives him no alternative; but it protects him in the discharge of his imperative duty. Emery v. Hag>good, 7 Gray, 55.</p> <p>It seems to be settled by an-almost unbroken line of authorities that if a person merely lays a criminal complaint before a magistrate, in a matter over which the magistrate has a general jurisdiction, and on which the person charged is arrested, the party laying the complaint is not liable for an assault and false imprisonment, although the particular case may be one in which the magistrate had no jurisdiction. Langford v. B. & A. B. B. 144 Mass. 431. In this case the court close with this remark.: "In the case before us, the magistrate had jurisdiction of the subject matter and of the party ; although the complaint was defective, the warrant was good on its face ; and an arrest .under it was an act done by virtue of legal authority, and does not constitute an assault.”</p>

Agreed statement. The parties agreed upon the following facts : The writ is dated March 14, 1878, returnable'to the September term of this court in Somerset county, 1878. Suit is brought upon numerous notes of Going Hathorn, the defendants’ testator, and upon an account annexed, and also upon a special contract set out in the writ. Copy of writ may be furnished by either party.

On motion and exceptions. This was an action of assumpsit tried to a jury in the Superior Court, for Kennebec county, and a verdict having been rendered in favor of the plaintiff, the defendant took exceptions and filed a general motion for a new trial. There was also a motion for a new trial founded on newly-discovered testimony. The case is stated in the opinion.

On report. This was a petition for certiorari. The cause came on for hearing upon answer by way of demurrer to the petition, which said answer by wajr of demurrer was joined by the petitioner; and by agreement of counsel, the same was reported to the law court to enter such judgment as the legal rights of the parties may require. All the original papers in the proceeding were made a part of ■this report. The case is stated in the opinion.

<p> Towns. Liability for torts of its officers. Ways. </p> <p>A town is not liable for tlie torts of its selectmen in building a road, when there is no vote authorizing them to take charge of that work.</p> <p>The duty of building roads is devolved by law upon certain public officers, such as highway surveyors, or road commissioners. A vote to authorize the selectmen to borrow money for building a road does not empower the latter as agents of the town to assume the work of building.</p> <p>See Goddard v. Harpswell, 84 Maine, 499.</p>

On report. This was an action of assumpsit on the defendant’s promissory note for $12,586.42, given at Boston, July 3, 1893, to the plaintiffs, Dillaway, Starr & Co., on six months.

On exceptions. The plaintiff recovered a verdict in the Superior Court, for Kennebec county, for a balance due him under a verbal contract to construct a drain. The defendant alleged exceptions which appear in the opinion.

<p> Lease. Bent. Payment. Evidence. </p> <p>The meaning and construction of written contracts is to be ascertained from the language used.</p> <p>In a lease which reserves an annual rental of twenty-seven hundred dollars, and contains a covenant of the lessee to pay the said rent in equal quarterly payments of six hundred and twenty-five dollars each, the erroneous division of the reserved rent does not have the effect to reduce the rent to twent}'five hundred dollars. Taken as a whole, a lease thus written satisfactorily shows that the rent reserved was twenty-seven hundred dollars; and that its erroneous subdivision into quarters was merely a mathematical mistake.</p> <p>Held-, that parol evidence is not admissible to control or explain the provisions of the lease; but the receipts given for rent are open to explanation.</p>

<p>Pauper. Collusive Marriage. Minor Children. B. S., 1871, c. 24, § 1; 1883, c. 24, § 1.</p> <p>A marriage is valid without any certificate of intention being obtained as required by law, when solemnized by a duly authorized magistrate.</p> <p>A female pauper, having a settlement in Manchester, was married in 1S78 to a pauper having a settlement in Gardiner. Held; that under the statute then in force, R. S., 1871, c. 24, § 1, if the marriage was collusive for the purpose of changing the settlement of the wife and so inoperative for that purpose, the children would take the settlement of the husband.</p> <p>The pauper status of the children of that marriage is determined by the law as it stood at the date of the marriage.</p> <p>Held-, that the father’s settlement being in Gardiner, the children who were then minors and who were born illegitimate before the marriage, having become legitimate by the subsequent marriage, and those born subsequently, had their pauper settlement in Gardiner by derivation from the father.</p> <p>Held; that the evidence fails to establish the allegation that the marriage was procured to change the wife’s settlement; she, therefore, took her husband’s settlement which was in Gardiner.</p> <p>Houlton v. Ludlow, 73 Maine, 583, affirmed.</p>

On exceptions. This was an action of assumpsit containing a count against defendant as indorser of a promissory note and the general omnibus or money counts with no specification under the money counts. To the count against defendant as indorser and to the count upon an account stated in the omnibus count contained, the defendant pleaded the general issue, but to each of the other counts he filed a special demurrer at the first term.

<p>Dower. Assignment. B: S., c. 103, § 3.</p> <p>Where dower is assigned by the sheriff under a writ of seizin of dower, it must be from each separate parcel; and of such portion of each as will produce one-third of the net income of the whole.</p> <p>Where an assignment of dower appears, by the assignment and officer’s return, to have been made from five only out of eleven parcels, held; that such an assignment, when made upon a writ of seizin, is not warranted by law.</p> <p>A widow’s dower should be set out definitely, by metes and bounds when practicable, so that she can occupy her own without further proceedings. Thus, where there is set out one-third part of a described parcel of land “ measured from the North side, and one-third part of the building standing thereon, measured from the North end,” held; that it was not set out by metes and bounds, nor specifically as one-third of the rents and profits.</p> <p>Where dower is attached to and assigned from a single parcel of land, and has been set out by a sufficiently accurate description “ as and for her dower,” held; that the assignment is sufficient.</p>

On motion and exceptions. Upon the new trial granted in this case, see Roberts v. B. & M. R. R. 83 Maine, 289, the plaintiff recovered a second verdict for $4863.78 ; and the defendant moved for a new trial and filed exceptions to the exclusion of evidence and the refusal of the presiding justice to order a nonsuit. The pleadings and arguments of counsel appear with a statement of the facts in the former report of the case.

<p>On exceptions.</p> <p>This was an action under K>. S., c. 17, §§23 and 24, to recover for personal injuries to the plaintiff, alleged to have been caused by an explosion from a blast fired by the defendant without giving seasonable notice thereof, while engaged in blasting lime-rock.</p> <p>The plea was the general issue.</p> <p>The testimony showed that on the 19th day of June, 1894, the plaintiff was riding northwardly, in a wagon drawn by one horse at a walk, along a public highway known as Union street leading from Kockport village to Camden village ; and that at a point in said Union street, near its junction with Limeroek street, the horse became frightened and unmanageable and jumped suddenly and violently, whereby she was thrown from the wagon to the ground and received thereby severe personal injuries.</p> <p>The plaintiff claimed, and introduced testimony tending to prove, that the cause of the horse’s fright was an explosion from a blast of lime-rock fired by the defendant in the limestone quarry of the S. E. & H. L. Shepherd Company ; and that the defendant gave no seasonable notice of' such blast as is required by section twenty-three of said chapter seventeen, or any notice whatever, to persons traveling in said Union street.</p> <p>It was admitted that the defendant, at the time said accident occurred, was employed by said company in blasting and quarrying limestone in its limestone quarry, and that said company was the owner of said quarry.</p> <p>The testimony showed that the quarry in which the blast is alleged to have been fired is adjacent to said Union street; that the quarry of Carleton, Norwood & Co., adjoins said quarry of the S. E. & H. L. Shepherd company on the north and is also adjacent to said street; that the horse at the time he took fright was four hundred and sixty-five feet distant from the point of the alleged blast; that the point of the alleged blast was seventy-seven feet below the level of the surface of the street, and was two hundred and ninety feet distant from the line of the street; that at the time when the horse took fright and the blast was alleged to have been fired, the plaintiff had reached a point at the junction of Limerock and Union streets and two hundred and forty-seven feet northerly from a point in the street directly opposite the place of the alleged blast.</p> <p>The plaintiff did not claim to have been struck or injured by any fragment or other missile thrown by such blast, but claimed that her injuries were caused solely by the horse becoming frightened by the explosion.</p> <p>The defendant denied that any blast was fired by him, at or near the time, when the accident occurred to the plaintiff and introduced testimony upon that point.</p> <p>The defendant’s counsel requested the presiding justice to instruct the jury that if the plaintiff’s injuries were caused by the horse becoming frightened by the explosion from a blast fired by the defendant without having given seasonable notice thereof, while engaged in blasting limestone, this action is not maintainable.</p> <p>The presiding justice, in order to give progress to the case, refused to so instruct the. jury; and instructed the jury that if the plaintiff’s injuries were so caused she was entitled to recover therefor in this action.</p> <p>The defendant’s counsel further requested the presiding justice to instruct the jury that, if at the time when such blast was fired, the plaintiff had passed the place of such.blast and was not approaching thereto, the action is not maintainable; which instruction, the presiding justice, for the same reason, refused to give.</p> <p>The horse with which the plaintiff was riding belonged to her husband, and at the time of the explosion was being driven by her grandson, a young man eighteen years of age.</p> <p>The defendant offered testimony tending to prove that said horse was vicious, not properly broken, and unsafe for the purpose for which it was then being used.</p> <p>Such testimony, upon objection by plaintiff’s counsel, was excluded by the presiding justice.</p> <p>The verdict was for the plaintiff; and the defendant alleged exceptions.</p> <p>As the plaintiff does not allege or claim that her injuries were produced by any fragment of stone or other missile thrown by the explosion, the defendant contends that the action is not maintainable under the statute. If the legislature had intended to protect persons from the sound of blasts and explosions, it would have used language which would have been applicable to blasts and explosions produced by any means and for any purpose. But the statute is confined to persons engaged in blasting "lime-stone or other stone.” It does not apply even to persons engaged in blasting other substances such as logs, or frozen earth. The great danger from blasting stone is from fragments of stone thrown by the blast, and by confining the effect of the statute to blasting stones, it is apparent that it was the intention of the legislature to protect persons from such danger.</p> <p>The statute requires persons engaged in blasting stone to give seasonable notice so that persons may retire to a safe distance. This is a reasonable provision if it means such notice as will give persons an opportunity to retire beyond the range of flying fragments. Such distance can be calculated with considerable accuracy. But to require such notice as will enable a person to retire to such distance that his horse will not become frightened by the explosion is unreasonable, because it is indeterminate, indefinite. One horse may not be frightened by a blast at a distance of a few rods, another may be frightened by the same blast at a great distance. The plaintiff’s horse, she alleges, became frightened and unmanageable at a distance of four hundred and sixty-five feet, or nearly thirty rods, from the place of the alleged blast. If the horse became frightened at the blast, at what distance would he not have been frightened? What would be a safe distance, in case of a blast, for another horse to be? If the statute has the construction contended for by the plaintiffs, it would be necessary before every blast to send messengers in every direction a distance at which the most nervous and most easily-frightened horse would not take fright from the explosion. It was not the intention of the legislature to impose such a burden upon persons engaged in a legitimate business.</p> <p>If the statute was intended to cover injuries caused by the mere noise or sound or jar of an explosion, why should it not have included all blastsf and explosions, and not blasts fired by persons employed in quarrying stone? An explosion from the firing of a gun, or cannon, is not included in the statute, but the remedy for any injury produced by such explosion is left to that at common law.</p> <p>Under this statute an action will lie only for such damages as are the direct cause of the injury and not for injuries produced by the fright of a horse from the sound of an explosion.</p> <p>2. At the time when the plaintiff* was injured she had passed the point of the alleged blast. From a point in the street opposite the place of the alleged blast to the place of the accident was 247 feet. At the time, therefore, that her horse took fright, she was retiring from the place of the blast and not "approaching” it. The statute requires notice such that "all pei’sons or' teams approaching shall have time to retire to a safe distance from the place of said explosion.”</p> <p>If a statute be both penal and remedial, it should be construed strictly. Abbott v. Wood, 22 Maine, 541.</p> <p>The word "approaching,” used in the statute must be given some meaning. There is no ambiguity in the word. It has but one definition, "drawingnearer,” "advancing towards.” As the plaintiff was not drawing nearer, or advancing towards the place of the blast, at the time of the explosion she does not come within the terms of the statute.</p> <p>If it is urged that such a construction of the statute would be open to the charge of absurdity, the answer is that the court is called upon to construe, and not to enact a statute. The language of the statute must be taken in its ordinary acceptance.</p> <p>3. It has long been a settled rule of the common law, that, for injuries negligently inflicted upon one person by another, there can be no recovery of damages if the injured person by his own negligence, or by the negligence of another imputable to him, proximately contributed to the injury. 4 Am. & Eng. Enel, of Law, 15; Whitney v. M. O. R. JR. Go. 69 Maine, 208; Woodman v. Pitman, 79 Maine, 456 ; Parker v. Pub. Go. 69 Maine, 173. And this rule applies as much to causes of action given by statute as to causes of action arising at common lawr. 1 Shear. & Redf. Neg. § 62 ; Beach on Contrib. Neg. § 16; ■Taylor v. Garew Mfg. Go. 143 Mass. 470 and cases cited; Hussey v. King, 83 Maine, 572.</p> <p>4. The statute which imposed upon the defendant the duty of giving notice, is of the same nature as that which makes it the duty of towns to keep their ways safe and convenient for travel. For neglect of such duties, the parties in fault are liable to persons suffering injury for such neglect. Moulton v. Sanford, 51 Maine, 127 ; Perkins v. Fayette, 68 Maine, 152; Knowlton v. Augusta, 84 Maine, 572.</p> <p>The remedy in both classes of oases is statutory. Both are based upon the neglect of the defendants to perform a duty positively imposed by statutes. The statutes in both cases are penal in their nature. The court has given the statute relating to ways a strict construction. Perkins v. Fayette, supra.</p> <p>The statute now under discussion, being expressly penal, is to be, at least, as strictly construed. In all actions for damages based upon the alleged negligence of the defendant the question is whether the defendant’s neglect is the sole, efficient cause of the plaintiff’s injury, or was there some other new and independent cause intervening between the neglect and the injury. See 1 Shearman & Redfield, Sec. 25, et seq. ; 19 Am. & Eng. Enel, of Law, 300 et seq. ; 16 Id. 428 et seq.; M. c§ St. P. By. v. Kellogg, 94 IT. S. 469.</p>

On report. This was a real action to recover certain lands in the Northern registry district of Aroostook county, which the demandant claimed under a mortgage given by Dudley C. Hall, of Med-ford, Massachusetts, dated December 17, 1890, and recorded April 13, 1891, as appears in the case George Stetson v. Dudley and Dudley C. Hall, 86 Maine, 110. This mortgage was duly foreclosed.

On report. The first of these actions was a writ of entry. Plea, nnl.disseizin. The plaintiff claimed title as assignee in insolvency of Dudley C. Hall, of Medford, Massachusetts. The defendant claimed title under a mortgage from Dudley C. Hall to himself; and it was admitted that such mortgage was given by said Hall to secure a pre-existing debt, and for no other purpose.

On exceptions. This was an action on the case, under K. S., c. 18, for injuries from an alleged defect in a culvert. The defendants did not controvert the evidence tending to prove that the selectmen, or highway surveyor, had actual notice of the alleged defect; but seasonably requested the court to instruct the jury that the evidence offered was insufficient to establish the element of twenty-four hours’ actual notice.

<p> Attachment. Exemptions. Express Waggn. Stat. 1887, c. 64. </p> <p>Under a statute exempting from attachment one “ express wagon,” held; that a vehicle suited and adapted to the transportation of luggage, truck, small parcels of merchandise, light country produce, and other light articles, and one that may conveniently be used for such purpose, is within the exemption. Whether a particular vehicle falls within this description is a question of fact for the jury.</p>

On exceptions. This was a petition praying that the date of the attachment, and returns on the writ and returns and records of the same in the registry of deeds, in Hancock county, where an action between the same parties had been defaulted and continued for judgment, might be restored by order of the court to conform to the facts.

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

On retort. Bill in equity, heard on bill, answers and proof. Held: or notified defendant that she had one. But if she can redeem at all, she can only redeem by virtue of the Merrill contract or option” only, because that option” in connection with the deed to Merrill, under all the circumstances, shall be regarded as constituting- in equity, a mortgage.

<p>On exceptions.</p> <p>This was assumpsit on an order, the terms of which appear in-the head-note. The order was indorsed in blank by the payee and Samuel Lewis.</p> <p>The words "The Bank Book of the depositor must accompany this order” were printed in small capitals on the lower margin of the order, under the signature of J. N. Cushing.</p> <p>There was evidence tending to show that plaintiff bought the order of James Lawler, the payee, on or before the 21st day of November, 1893. The defendant asked the court to rule that the order was not negotiable, and an action could not be maintained in the name of White, but the presiding justice ruled, as matter of law, that the order was negotiable, and the action could be maintained in the name of White by a simple indorse.ment by -Lawler.</p> <p>There was evidence tending to show that Lawler, the payee, •obtained :the order from Cushing, the maker, by fraud, and the defendant asked the court to rule that this defense was open to him in this action, although White might not have had knowledge of the claim of fraud when he bought the order from Lawler; but the presiding justice ruled that the order had all the characteristics of a check, and was not overdue until at least thirty days after its date, and that if the plaintiff bought the order within thirty days from its date for a valuable consideration in the ordinary course of business without actual notice of the fraud, he, the plaintiff, was an innocent purchaser, and the defendant could not set up fraud in the procuring of the order as against White.</p> <p>There was evidence tending to show that on the twenty-eighth day of October, A. D., 1893, and before the order was negotiated by Lawler to anybody, Lawler took the order to the Piscataquis Savings Bank and demanded payment of the same of said bank, and that the bank refused to pay the same until after thirty days’ notice had been given, and refused to pay the same unless it was accompanied by the bank book of the depositor, Cushing, as required in the order.</p> <p>And there was evidence tending to show that the plaintiff, White, knew when he bought the order that this payment had been demanded by Lawler, and payment refused by the bank for the reasons above stated, and the defendant asked the court to rule that the order was then an overdue order, and that when White got it afterwards of Lawler it ivas subject to all the • equities in White’s hands that it would be in Lawler’s; but the court ruled otherwise.</p> <p>There was evidence tending to show that the consideration of the order was for dry goods sold by said Lawler to Cushing while traveling from town to town, and from place to place in the town of Charleston, in violation of the statute of this State, unless said Lawler had a license so to do.</p> <p>There was evidence tending to show that White knew that the note was given for goods sold by Lawler while thus traveling.</p> <p>There was no evidence that Lawler had any license to so sell, and the defendant asked the presiding justice to rule that said sale was in violation of the statute, and that White had notice of the same, and could not recover for that reason ; but the presiding justice ruled that, so far as White was concerned, he had a right to assume that Lawler had a license for the purpose of selling said goods.</p> <p>To all these rulings, and refusals to rule, the defendant excepted.</p> <p>To be within the rule that prevents negotiability, the contingency or conditions must be such as will embarrass the paper in its course of circulation ; but a memorandum which is merely directory or collateral will not affect it. Overton v. Tyler, 4 Pa. St. 346; Hodges v. Shuler, 22 N. Y. Reg. 114; Arnold v. Rock River Valley Union Oo. 5 Duer, 207 ; Hostater v. Wilson, 36 Barb. 307 ; Dennett v. Goodwin, 32 Maine, 44; Smilie v. Stevens, 39 Yt. 315 ; Dorsey v. Wolff, 142 111. 589 ; S. C. 34 Am. St. Rep. 99 ; Sumner v. Hibbard, 38 N. E. Rep. 899.</p> <p>The words in the margin of this order are no part of the contract between the maker or drawer and the payee ; they create no contingency between them. The fraudulent acts or intent of the maker of otheiwise negotiable paper will not defeat its negotiability. That this exact question has not arisen oftener is of some weight in favor of the plaintiff. The cases in Penna. on mercantile law are not cited with great confidence. For a summary of cases see Edwards’ Bills and Notes, p. * 141; Ames’ Bills and Notes ; Big. L. C. Bills and Notes ; Dorsey v. Wolff, supra; Gota v. Buck, 7 Met. 588; Byram v. Hunter, 36 Maine, 220.</p>

On exceptions. This was an action of assumpsit on account annexed and two _special counts, together with a money count, and submitted to the presiding justice of the Superior Court, for Cumberland county, upon the pleadings. The defendant’s counsel duly filed a demurrer to the first count of the plaintiff’s declaration. The demurrer was sustained and the first count of the plaintiff’s declaration adjudged bad by the presiding justice.

Agreed statement. This was an appeal from a decree of the judge of probate of the county of Knox, made and passed at a probate court held at Rockland on the third Tuesday of June, A. D., 1894, appointing- Charles D. Jones', the respondent, to be administrator of the estate of Amanda Shepard, late of Union in said county of Knox, deceased.

On exceptions. This was a bill in equity praying for an injunction, and after hearing on bill, answer and proof, the following final decree was entered, to which the defendant excepted : That the… Held: that soliciting orders for another chemist w7as not a breach of this agreement. Clark v. Watkins, 9 Jur. N. S. 142.

Agreed statement. The parties agreed to the following statement of facts: The defendant, L. Taylor Dickson, of Philadelphia, in the spring of 1892 purchased the Suminsby Place, so-called, in Bar Harbor, Maine, consisting of a house and lot bordering upon and bounded by Eden street, a public highway. At the time of his purchase, a fence existed upon his property on or near the line of the street.

On report. This was an action to recover damages sustained by the plaintiff by means of a folding-bed falling upon her that she alleged was sold to her with a warranty and was of faulty contrivance; also to recover damages sustained by another person, which she alleged that she was compelled to pay, happening through the same cause. The declaration contained two counts.

On report. This was an action of assumpsit .for rent of a house. Plea, general issue, and a brief statement denying that the title to the premises was in the plaintiff, and alleging it to be in one Thompson. The plaintiff claimed title to one-fourth as heir of his father and by release of the other three-fourths from his-sister, being the other heirs.

On exceptions. This was au action of trespass quare clausum. The defendant pleaded the general issue, with a brief statement, and after a demurrer to the brief statement was sustained, as see 87 Maine, 24, by leave of court filed subsequently an amended brief statement of defense to which amended brief statement the plaintiffs demurred, and the presiding justice overruled the demurrer, to which ruling the plaintiffs excepted.

<p> Negligence. New Trial. </p> <p>Boys playing about moving cars must take the risk of life and limb, if they will persist in such dangerous sport.</p> <p>In this case the jury returned a verdict for the defendant. The plaintiff neither took exceptions nor filed a general motion to set aside the verdict as being against evidence, etc., but moved for a new trial on the ground of newly-discovered evidence. The court consider that no legal cause is shown for ordering a new trial; and, also, if ordered, it is extremely doubtful if any other result could ever be reached.</p>

Agreed statement. The parties agreed to the following statement: George W. Bucknam, BionB. Tibbetts, Willard E. Bailey artd Harley Worcester, all of Columbia Falls, in Washington county, on or before December 12th, 1894, had collected by purchase or otherwise, and had in their possession at said Columbia Falls, the carcasses of eighty-nine deer as follows: Said Bucknam, thirty-one ; said Tibbetts and Bailey, twenty-one each ; and said Worcester, sixteen carcasses.

On exceptions. This was an action of debt brought in the Superior Court, for Kennebec county, to recover from the executors of the will of Abigail Sanford the sum of $2000 under the following provision of her will: I give and bequeath to each of my nephews and nieces who may be living at the time of my decease, $2000.” The plea was the general issue.

On exceptions. This was an action of debt to recoverffhe amount claimed to be due upon an alleged judgment rendered in the superior court for the Province of Quebec, District of Arthabaska. Held: fatal.) In the case of Barringer v. King, 5 Gray, p. 9, the whole

<p>Timber. Pulp-wood. B. 8-, a. 42, § 6; Stat. 1881, c. 521, § 7; B. 8., of U. 8., §§ 2817, 2465, 2466.</p> <p>The cost of driving- pulp-wood that has become so intermixed with logs that it cannot be conveniently separated may be recovered by the owner of the logs under R. S., c. 42, § 6.</p> <p>The benefits of the statute are equally useful whether the drives are saw-logs, ship-timber, pulp-wood, or other wood-products suitable for commerce or manufacture that may be conveniently driven to market. The statute is remedial and should be construed liberally, when necessary to work out the purpose of the legislation.</p> <p>Floatable streams are public, and being free to all, if their capacity for floating logs is inadequate to serve the purposes of all, each one must so conduct his drive as to give others a reasonable share of their benefits.</p> <p>The defendants turned some of their pulp-logs into the river in advance of the plaintiff’s drive and left them to make their own wajr down stream. The plaintiffs came along with their own drive of logs which intermixed with the defendants’ so that separation was costly and vexatious. The plaintiffs drove the whole mass and brought their action, under the statute, to recover the cost of driving the defendants’ pulp-wood. Held; that they could recover; and that it is no defense to say that it was of no benefit to the defendants, or that the plaintiffs had still another drive later when all of the defendants’ logs would have been turned in.</p> <p>Held; that the plaintiffs wore required to drive only such of the defendants’ logs at their expense as became so intermixed with plaintiffs’ that they could not be conveniently separated; and were not required to make a clean drive of any other logs that had not interfered with their own.</p> <p>Also, that when intermixed logs are once taken charge of to be driven at the expense of various owners, they must be driven clean; and the measure of damages is the pro rata expense of driving the mass.</p>

On exceptions. This was an action of trespass on the case brought in the Superior Court, for Cumberland county, against the defendant for damages done to plaintiff’s property and the Brunswick Village Corporation was summoned as trustee. The trustee filed a disclosure.

On motion and exceptions. The plaintiff recovered a verdict of $63.87, in this action, for his services in driving the defendant’s logs. The action, was brought under R. S., c. 42, § 6, and the defendant filed a motion for a new trial and took exceptions as appear in the opinion.

On exceptions. This was an action of assumpsit tried in the Superior Court,' for the county of Cumberland, in which judgment was rendered for the defendant, and the plaintiff’ excepted. The facts are found in the opinion. Effect of E. S., c. 70, § 63, is to give the creditor for whom a deposit is made but six months within which he may prove his claim.

<p> Equity. Voluntary Conveyance. Payment. Presumption. </p> <p>Circumstances may rebut the presumption that a note given for an antecedent debt is intended as a payment. Such presumption is overcome when the circumstances show that it was merely a renewal of the same indebtedness and was so intended by the parties.</p> <p>A deed was given by husband to wife subsequent to his debt to the plaintiff. The court considers, upon the evidence, that it was a voluntary conveyance, without consideration and in fraud of the plaintiff.</p>

This was an action for money had and received in which the presiding justice ordered a nonsuit and the plaintiff excepted. The case appears in the opinion. The action for money had and received is an equitable action and requires no privity of contract to support it, except what results from defendant’s having money of the plaintiff which inequity he ought to pay over to him. Concord v. Delaney, 58 Maine, 309 ; Lord v. French, 61 Maine, 420 ; Howe v. Clancey, 53 Maine, 130.

On report. This was a bill in equity, heard on bill, answer and proof, in which the plaintiffs claimed to recover of the Knox Lime Insurance Association upon two contracts of insurance on a cargo of lime shipped at Rockland in February, 1893, on board the Brig, Caroline Gray, The Knox Lime Insurance Association is a voluntary association, or partnership, of whom the plaintiffs and defendants are -the members.

On exceptions. This was an action of replevin of four cords of wood. It was tried in the Superior Court for Kennebec county, where the presiding justice ordered a nonsuit. The plaintiff introduced evidence tending to show that he agreed to sell defendant four cords of -wood to be delivered at defendant’s house and that defendant said the pay should be ready when the wood was hauled.

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

On motion and exceptions. This was an action of assumpsit on an account annexed, to wit: one item of which was: To 34 weeks board, from Nov. 6, 1888, to July 2, 1889, at $2.50, $85.” It was admitted by plaintiff in evidence that there was no expectation at the time, of charging defendant for board during the time covered by this item in plaintiff’s writ as she understood that his board was to be offset by his labor, but that defendant had charged her for labor at the rate of…

<p> Deed. Notes. Failure of Consideration. </p> <p>Partial failure of title has always been held in this State to be no defense to a suit upon notes given for the purchase of land; but a total failure maybe.</p>

On motion and exceptions. This was an action brought to recover damages for injuries sustained by reason of an alleged defective highway. The jury returned a verdict for the plaintiff. The plaintiff contended, and his evidence tended to show, that -the defect consisted in a lack of a railing on a certain bridge.

<p>On exceptions.</p> <p>This was an action of case for injury to a horse alleged to have been caused by a defective highway in the defendant town.</p> <p>The evidence disclosed that in March, 1894, at the annual town meeting, the defendant town elected several highway surveyors, assuming to elect them for the several districts in the town.</p> <p>The surveyor elected for district No. 4 did not qualify and refused to serve. Whereupon the selectmen verbally appointed one Reuben G. Osgood as highway surveyor for district No. 4. He was duly sworn as appears by the oath recorded in the town records, and acted as highway surveyor within said district for the year 1894.</p> <p>• The other surveyors elected by the town were duly qualified and served during said year, but not within the limits of district No., 4. Within the limits of said district Reuben G. Osgood acted exclusively.</p> <p>The alleged defect causing the accident and injuries complained of was within the limit of said district.</p> <p>No' twent^y-four hours’ actual notice of the defect was had by any officer of the town except Reuben G. Osgood. The evidence tended to show and the jui’y found that he had such notice, and upon notice to him the plaintiff relied. Upon this point the presiding justice instructed the jury as follows :</p> <p>"It is necessary, then, that one of the municipal officers, and by that is meant selectmen, highway surveyors or road commissioners, had twenty-four hours’ actual notice of the defect which caused the injury. It is only claimed that one Reuben Or. Osgood had this notice. No testimony has been introduced that any one of the selectmen, or any other of the officers named, had any notice, but that Reuben G. Osgood did have notice. And the first question to arise is, was he a highway surveyor within the meaning of the statute on the 30th day of May, and for twenty-four hours at least prior to that time, or as this was caused as claimed by the plaintiff on the 28th-day of May, was he, on the 28th day of May a highway surveyor within the meaning of the language of the statute.</p> <p>" Now, officers are ordinarily elected, or appointed, in accordance with the requirements of the statute, which points out the method in detail of their election or appointment, and a person who is so elected or so appointed, speaking now of a public officer, is what is known to the law as a de jure officer, that is, one that is legally elected and lawfully acting and holding the office. But I instruct you for the purposes of this case, that the notice which I am speaking about now, namely, the twenty-four hours’ prior notice, will be sufficient if it is had by a defacto officer of the town, one of those named in the statute. In other wrords, that if Reuben G. Osgood on the 28th day of May, was the de facto road commissioner or highway surveyor, that notice to him would be sufficient. Now, you see, it becomes, necessary for me to explain what I mean by the use of that word. I do not instruct you that Reuben G. Osgood was the highway surveyor, or was the de facto highway surveyor at that time. That is a question of fact, if there is any dispute about the facts, for you to pass upon.</p> <p>"By this term I mean this : A person, who, although not regularly elected or appointed in strict conformity to the requirements of the law, yet has some color of title, or right to the office and claims to hold it and performs its duties with the knowledge and acquiescence of the electing or appointing power, so that as to the public such person is held out as a lawful officer.</p> <p>“And I instruct you that if Reuben G. Osgood was a de facto officer within the meaning of this instruction, which I have given you, then that notice to him would be in compliance with the statute which I have referred to and i-ead.</p> <p>"I do not mean by this that it is sufficient for a person simply to be acting as an officer, without any right or authority, to assume to be an officer merely because he takes the idea into his head, without the knowledge or the acquiescence of the appointing pow'er of the community. Mere acting as a highway surveyor in and of itself is not sufficient, but it is one of the steps and requisites which help to show whether or not a person was a de facto officer within the meaning of this instruction. And further, if Mr. Reuben G. Osgood, prior to the 28th day of May, was appointed verbally by' the selectmen of the town of Surry, either to fill a vacancy or otherwise, and if he then and there or afterwards attempted to qualify himself by taking the oath of office, and then did claim to hold the office of highw'ay surveyor, did perform its duties, did take direction of the work of repair upon the highways within the limits of his territory, held himself out and w'as permitted and allowed to hold himself out by the selectmen of Surry as the lawful incumbent of that office, then I say that he would be a de facto officer, and the town would be estopped from saying that he was not such an officer to whom the statutory notice might be given.</p> <p>"I do not know' that there is any question about the facts in regard to Reuben G. Osgood’s position. There is question about the law raised by the counsel for the defense. I have given it to you and it is your duty to take it for the purposes of this trial.”</p> <p>The defendants contended that the fourteen days’ notice of the injury required by the statute was not shown.</p> <p>The evidence disclosed thatthe injuries were received on May 30th, 1894. On June 12th, 1894, the plaintiff mailed a notice, sufficient in form to comply with the statute, directed to E. H. Torrey, chairman of selectmen, South Surry, Maine. Torrey was chairman of the selectmen. This notice was mailed at Bluehill on June 12th, and by the regular and ordinary course of the mail would have reached South Surry on the 13th. The evidence tended to show that the notice did reach the post-office at South Surry on the 13th. But the notice was not received by Mr. Torrey, or any other town officer, until June 14th. The South Surry post-office was three miles from the residence of Mr. Torrey, the chairman of the selectmen, and was the post-office in the town nearest his residence. But the " Surry ” post-office, a half a mile further from his residence, was his regular post-office address.</p> <p>At the time of mailing the notice, the plaintiff did not know Mr. Torrey’s post-office address and made inquiries concerning it, and as a result of information received, directed his notice to "South Surry,” as the post-office nearest his residence. No reason was shown why the notice could not have been given earl ier.</p> <p>No other fourteen days’ notice of injury was shown. Upon this point the presiding justice instructed the jury as follows :</p> <p>"It is admitted, there is no dispute about it, that upon the 12th day of June, which was within the fourteen days, Mr. Chase mailed a notice sufficient in form and as required by this statute. The form of the notice is not questioned; or that it specified the nature and location of the defect and the nature of the injuries. That was mailed on the 12th day of June, and I give you for the purposes of this trial this instruction :</p> <p>"That if this notice was mailed by Mr. Chase at such a time that by the usual and ordinary course of mail it would reach a post-office in the town nearest to the municipal officer to whom it was directed, that that would be a sufficient performance of the duty required by statute, even if that notice was not received by the municipal officer to whom it was directed or any other municipal officer, until after the fourteen days.</p> <p>"Now it is not denied that on the 12th day of June this notice was mailed at Bluehill; it is not denied, if I understand correctly, that this was not received by Mr. Torrey, to whom it was directed, until the 14th day of June ; and the 14th day of June would be after the fourteen days after the accident.</p> <p>"But if it was mailed at Bluehill in season so that by the ordinary and due course of mail it would reach the office to which it was directed, and that office was the nearest one to the place of residence of the municipal officer to whom it was directed, I instruct you that that would be a sufficient compliance. And as to this matter, while there is much question of law between the parties there is uo question, as I understand, of facts whatever ; and if the law is incorrectly given upon this question the counsel have a method, as I have before said, well known to them whereby it may be rectified.”</p> <p>The verdict was for the plaintiff.</p> <p>To these rulings and instructions the defendants took exceptions.</p> <p>A de facto highway surveyor is an actual highway surveyor; a highway surveyor in fact. So far as his acts, or his occupancy of the office, concern the rights or interests of the public or individuals, he 'is regarded by the lawT as the officer he appears and assumes to be, and, with color of title, exercises the duties of. Brown v. Bunt, 37 Maine, 423 ; Cushing v. Frankfort, 57 Maine, 541 ; State v. Carroll, 38 Conn. 449; Hooper v. Goodwin, 48 Maine, 79.</p> <p>The purpose of the statute in requiring this twenty-four hours’ actual notice to be proved is to restrict rights of action, against towns for damages for such injuries, to cases where the person or persons, whose duty it is to keep highways in safe condition have with knowledge of a defect, neglected their duty for at least twenty-four hours. '</p> <p>Osgood was the man whose duty it was to keep this road in repair. He had knowledge of the defect twenty-four hours before the injury. The town could have been no more protected, if his appointment had been in writing instead of verbal, had he been a de jure instead of a de facto officer.</p> <p>Counsel also cited: Dill. Mun. Corp. §§ 275, 531 n, 892 n; B. S., e. 3, § 14; Belfast v. Morrill, 65 Maine, 580.</p> <p>Fourteen days’ written notice : The primary object of the statute was to limit the time when the claimant should make the detailed statement rather than the time of its receipt by the specified officer. The legislature provided first that the claimant, within the fourteen days, should " notify ” the required officers, and it then provided the manner or means of notice, viz : "by letter or otherwise, in writing.” When the legislature fixed the manner and means of the notice to be "by letter,” it intended that the term " letter,” should have its usual and generally accepted signification, to wit, a communication by mail in the ordinary way.</p> <p>Words are to be understood as used in their customary signification, unless from the context a different meaning is apparent. Union Ins. Go. v. Greenleaf. 64 Maine, p. 129.</p> <p>The entire expression "by letter or otherwise, in writing” shows that the term "letter” as used there imports something more than a mere writing, else why the expression "or otherwise in writing.”</p> <p>Our contention is that the legislature imposed upon a claimant for damages, as a condition precedent to his right of action against the town, the duty, within fourteen days after his injury, of setting forth his claim for damages and specifying the nature of his injuries and the nature and location of the defect which caused such injury, and of sending that detailed statement by mail as a letter properly directed to the specified officer.</p> <p>The regularity and safety with which letters are transported by the mails are such that the law raises a presumption that they are duly received by the person to whom they are properly addressed and sent.</p> <p>It was competent for the legislature to provide, as the means of sending the notice in such cases as this, the mail. Publication is very commonly provided by the legislature as a means of notice. There is more certainty that a person will actually receive a notice sent by mail than that he will have actual notice of a publication.</p> <p>If the provision had been that the claimant should notify the specified officer by a certain statement in writing "sent by mail” it would not be contended that proof should be required that the statement sent was actually received within the time.</p> <p>The language of the statute should be construed to mean nothing more than that the letter, containing the proper statements, should be sent properly addressed by mail within the time.</p>

On exceptions. This was an action of assumpsit on a promissory note. Plea, general issue and the statutes of limitations. At the conclusion of the plaintiff’s evidence, on the defendant’s motion, the plaintiff was orderedto become nonsuit and thereupon took exceptions. The case is sufficiently stated in the opinion.

Oil REPORT. Bill in equity, heard on bill, answer, demurrer, and agreed statement of facts. Agreed Statement of Facts. . Ambrose A. Whitehouse, father of the plaintiff, devised to his son, Preston Whitehouse, certain real estate, and directed said Preston Whitehouse to pay the plaintiff five hundred dollars when she became eighteen years of age. Ambrose A. Whitehouse died on the tenth day of November, 1871, and his will was duly admitted to probate.

On report. This was action of quare clausum frégit. The trespass complained of consisted in cutting standing trees on a lot of land which the plaintiff owned in remainder, the widow of his father having a life estate therein as her dower. The question was whether the action can be maintained by the plaintiff whose interest is only in remainder, a remainder-man.

<p>On exceptions.</p> <p>This was an action of assumpsit on account annexed to recover the sum of $381.82, balance claimed to be due for labor and materials furnished by plaintiff in building a house for defendant in Westbrook in the summer of 1893. The case was tried in the Superior Court for Cumberland county.</p> <p>Plaintiff declared on account annexed in usual form with itemized statement of labor and materials.</p> <p>The action was sent to an auditor by the court under a commission containing the usual clause, "to hear the' parties and examine the vouchers and proof and to state the accounts in said case and make a report thereof to this court.”</p> <p>After hearing the parties and their witnesses, the auditor stated the accounts annexed to the writ as required by statute, and reported the same to the court.</p> <p>At the trial of the case, among the items of evidence offered by the plaintiff was so much of the auditor’s report as stated the accounts.</p> <p>The auditor further found and reported to the court as follows :</p> <p>"From all the evidence in the case, I find that there was a special verbal contract between the parties, by which the plaintiff’ agreed to build the house and ell according to the plan upon which it was in fact built, for the sum of $1450, and was to receive pay for such extra labor and material, as he might furnish in making changes or additions to such plan after agreement therefor with the defendant, and that such changes and additions as were so made, amounted to $130.50, making of total for contract price and extras of $1580.50.</p> <p>"Upon all the evidence in the case, I find that the house and ell described in plaintiff’s writ, was built under a contract, as claimed by the defendant, and that plaintiff was entitled to receive therefor the contract price of $1450, and the amount of his bill of extras of $130.50, amounting to $1580.50, and that he has in fact received by payments to or for him the sum of $1778.10, and accordingly, I find and so report, that at the date of the writ in this case, there was nothing due from the defendant to the plaintiff.”</p> <p>At the trial of the case before the jury, the defendant offered the foregoing portions of the auditor’s report in evidence, wherein he found that there was a special verbal contract between the parties for building said house and ell, etc.</p> <p>The plaintiff objected to the admission of the same in evidence, upon the ground that all said matters were matters in defense and went in bar of plaintiff’s suit, and were beyond the power and authority of the auditor, as conferred upon him by the statute and specified in the commission to him.</p> <p>The presiding justice admitted the same, subject to the plaintiff’s objections.</p> <p>To all these admissions and rulings the plaintiff excepted.</p> <p>Verdict was for the defendant.</p>

<p>On exceptions and report.</p> <p>This was an action of assumpsit on an account annexed, and the following special count:</p> <p>"Also, for that at said Hartland on November 23rd, A. D., 1892, the plaintiff was then and there the owner and possessor of a certain horse of great value, to wit, of the value of one hundred and seventy-five dollars, and the said defendant being then and there the owner of a certain other horse of the value, to wit, of one hundred dollars, it was then and there agreed between said plaintiff and defendant that they should exchange said horses and that the defendant should pay to the plaintiif the sum of seventy-five dollars difference between said horses. And the said defendant being then and there the owner and possessor of a certain promissory note dated September 21, A. D., 1892, signed by one Joseph Frost, whereby the said Joseph Frost for value received promised the said Orlando Cobb to pay to him or his order the sum of eighty dollars with interest in one year from the date of said note. And the said defendant then and there intending to deceive and defraud the plaintiff then and there falsely and fraudulently represented to the plaintiff and then and there promised the plaintiff that the said note was perfectly good ; that the said Joseph Frost, who was then and there unknown to the plaintiff was then and there a man owning considerable property and responsible and good for the payment of said note and that the said Joseph Frost would pay said note at its maturity. And the said plaintiff relying upon the said promises so made by the defendant to the plaintiff as aforesaid did then and there exchange said horses with the defendant, and then and there received of the defendant the defendant’s said horse and the aforesaid promissory note, and gave in exchange therefor the plaintiff’s said horse and the sum of five dollars and eighty-two cents, the sum last named being the then difference between the said agreed boot money of seventy-five dollars and the amount of the principal and interest then accrued on said note.</p> <p>"And the plaintiff avers that the said Joseph Frost on said November 23rd, 1892, was not then and there a man owning-considerable property and responsible and good for the payment of said note and that the said note was not then and there perfectly good, and that the said Joseph Frost did not pay said note at its maturity although requested and that the said Joseph Frost on said November 23rd, and long before was and ever since has been utterly worthless and insolvent, all of which was then and there unknown to the plaintiff.”</p> <p>At the second term, the following amendment was allowed after striking out the foregoing counts. The amendment was allowed against the defendant’s objections, and to granting which he took exceptions:</p> <p>(Amended Declaration.)</p> <p>"For that at said Hartland on November twenty-third, A. D., 1892, the plaintiff was then, and there the owner and possessor of a certain horse of great value, to wit: of the value of one hundred and seventy-five dollars and the said defendant then and there being the owner of a certain other horse of the value of one hundred dollars, it was then and there agreed between the plaintiff' and defendant that they should exchange said horses and that the defendant should pay to plaintiff the sum of seventy-five dollars difference or boot between said horses. And the said defendant being then and there the owner and possessor of a certain promissory note dated September 21st, 1892, signed by one Joseph Frost, whereby the said Joseph Frost for value received promised the said Orlando Cobb to pay to him or his order the sum of eighty dollars with interest in one year from the date of said note, and the said defendant then and there intending to deceive and defraud the plaintiff then and there falsely and fraudulently represented to the plaintiff’ that the said note was perfectly good, that the said Joseph Frost who . was then and there unknown to the plaintiff’ was then and there a man owning considerable property, a farm near Harmony village and a stage line; and responsible and good for the payment of said note and that the said Joseph Frost would pay said note at its maturity. And the said plaintiff relying upon the said false and fraudulent representations so made by the defendant to the plaintiff as aforesaid did then and there exchange said horses with the defendant and then and there received of the defendant the defendant’s said horse and the aforesaid promissory note and then and there gave in exchange therefor the plaintiff’s said horse and the sum of five dollars and eighty-two cents, the sum last named being the then difference between the said agreed boot money of seventy-five dollars and the amount of the principal and interest then accrued on said note. And the plaintiff avers that said Joseph Frost on November 23rd, 1892, was not then and there a man owning considerable property, a farm near Harmony village and a stage line, and was not responsible and good for the payment of said note and that the said note was not then and there perfectly good and that the said Joseph Frost did not pay said note at its maturity although requested and that said Joseph Frost on said November 23rd, 1892, and long before said last named date was and ever since has been utterly worthless and insolvent, all of which was then and there unknown to the plaintiff but was at the time of said representations well known to the defendant. And so the said defendant by means of his said false affirmation, hath greatly injured and defrauded the plaintiff.”</p> <p>After the testimony in the case was taken out, it was by agreement of the parties submitted to the full court for decision upon so much of the evidence as was competent and admissible, the law court to render such judgment as the legal rights of the pai’ties might require.</p> <p>The case is stated in the opinion.</p> <p>Courts are very liberal in the allowance of amendments, where the "persons and case can be rightly understood.” Solon v. Perry, 54 Maine, 493.</p> <p>" No process or pi’oceeding in courts of justice shall be abated, arrested, or reversed, for want of form only, or for circumstantial errors or mistakes which by law are amendable, when the person and case can be rightly understood.” Such errors and mistakes may be amended on motion of either party, on such terms as the court order's. R. S., c. <82, § 10. An amendment should be allowed or disallowed, according as it is, or is not, in the furtherance of justice. There can be no other rule to guide the court in exercising its discretionary power in such cases. Hay ford v. Everett, 68 Maine, 505.</p> <p>Cases of amendment: In Perrin v. Keene, 19 Maine, 358, K. and W., late partners, dissolved the copartnership. W., without authority, then gave a firm irote for a firm indebtedness. In an action on the note, it was held, that the note being unauthorized, was not payment, and plaintiff” was allowed to amend by declaring on the original debt, being the same subject matter. Haynes v. Jackson, 66 Maine, 93, an action of trespass, q. c., ail-amendment was allowed describing the close as situate in a different town than that alleged. In Gameron v. Tyler, 71 Maine, 27, an amendment was allowed changing a capias writ to a capias or attachment. Walker v. Fletcher, 74 Maine, 142, was an action of case for the negligent burning of property. An amendment was allowed substituting " birch,” for " ash ” lumber.</p> <p>In Pullen v. Hutchinson, 25 Maine, 252, the court said: "A declaration so defective that it would exhibit no cause of action, may be cured by an amendment without introducing a new cause of action. In Rand v. Webber, 64 Maine, 19, Webber sold Rand some land. A ten acre piece was omitted, either by mistake or fraud. Rand brought an action of assumpsit to recover back so much of the purchase money as said omitted parcel was actually worth.</p> <p>The court held that assumpsit could not be maintained, and allowed plaintiff " to have his writ amended and his pleadings reformed conformably to an action of tort, by paying costs and recovering none up to the date of the amendment.”</p> <p>The above named cases are not cited as authorities directly, for the question we are discussing, but as illustrating the departure from the original declaration allowed by the courts. The case of Rand v. Webber, however, we regard as an authority for our position, and as conclusive.</p> <p>The amendment in this case introduces no new cause of action.</p> <p>It is for the same cause of action set out in the original writ and declaration. The original declaration definitely informs defendant of the charge brought against him, viz : " And the said defendant then and there intending to deceive and defraud the plaintiff then and there falsely and fraudulently represented to the plaintiff, . . . that the said note was perfectly good; that the said Joseph Frost who was then and there unknown to the plaintiff was then and there a man owning considerable property and responsible and good for the payment of said note and that said Joseph Frost would pay said note at its maturity,” etc.</p>

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

On exceptions. The case is stated in the opinion. Trustee process is a statute remedy and the statute must be followed. Hanson v. Butler, 48 Maine, 81. Whittemore should answer. R. S., c. 86, § 71. He shall be examined as he might have been in the original suit. Ib. § 71. If he might, he should be defaulted. Ib. § 68.

<p>On report.</p> <p>This was an action of assumpsit on an account annexed to recover live hundred dollars, the price of two American Champion road machines sold by the plaintiffs to the defendant on the second day of April, 1894. The plea, the general issue.</p> <p>The plaintiffs’ testimony showed as follows: They reside in Boston, and in the spring of 1894, were the general agents for the sale of the American Champion road machines, so-called. On the second day of April, 1894, their traveling salesman, Mr. Piers, came to Augusta and met by appointment the mayor of the city, Mr. Milliken, and Mr. Davis, the chairman of the committee on highways, on the part of the city government. The meeting took place at the store of Mr. A. W. Brooks who had interested himself somewhat in the matter of the purchase of the road machine by the city, and was himself to receive a commission in case a sale was effected, as all the parties to the trade understood. After considerable conversation, the representatives of the city concluded to purchase one American Champion machine for the sum of two hundred and fifty dollars, f. o. b. boat at Boston, with a discount of 5 per cent for cash in ten days, and Mayor Milliken then and there signed the following order:</p> <p>"Augusta, Me., April 2, 1894.</p> <p>"Messrs. George Tyler & Co.,</p> <p>43 & 45 South Market Street, Boston, Mass.</p> <p>" Gentlemen :</p> <p>"Please ship on or about as soon as possible to (first boat leaves Boston, April 10th). By boat:</p> <p>1 American Champion Road Machine, @ $250 00</p> <p>5 per cent off cash ten days.</p> <p>" Machine warranted by you for one year to be of good material and workmanship and to do as claimed for them in your circular.</p> <p>Chas. A. Milliken, Mayor.”</p> <p>On the back of the order was the following :</p> <p>"Warranty for the American Champion and Steel Champion Reversible Road Machines.</p> <p>" 1st. To be the Lighest Draft Machines on the market.</p> <p>"2d. To be of the very best material and workmanship.</p> <p>"3d. To be simply and thoroughly constructed on mechanical principles.</p> <p>"4th. To move as much eai*th in the same time as any competing machines, and to plow successfully in any soil, whether baked clay, gumbo or prairie soil.</p> <p>"5th. To be successful graders, levelers and earth carriers.</p> <p>"6th. To be easily operated under all conditions.</p> <p>"7th. To be reversed in less time than competing machines.</p> <p>"8th. To run more steadily than competing machines.</p> <p>"9th. To make from one-half to a mile of road per day, according to width of road, condition of soil, etc.</p> <p>" 10th. To operate successfully in all work of road building and repairing, moving earth to the right or left or directly forward, to plow their own ditches, cut down banks, widen roads and in short do any work that can be done by any road machine.</p> <p>" 11th. To be less liable to side-slewing or slipping than any competing machine.</p> <p>"12th. To operate successfully in difficult places.</p> <p>"13th. To effect a saving of at least 75 per cent in the cost of building and repairing roads of over the old methods.</p> <p>" 14th. We warrant these machines to be free from imperfections in material and manufacture, and agree to make good any parts that may prove defective by reasonable usage, after a fair trial within one year.</p> <p>"Geo. Tyler & Co., Boston, Mass.”</p> <p>Subsequent to this, but on the same day, some parties on the east side of the city expressed a desire to have another road machine for that side, and after a conference among the representatives of the city, the mayor directed Mr. Brooks by telephone to sign a second order for another road machine of the same kind ; it being arranged with Mr. Piers that the price for the two machines should be two hundred and thirty-five dollars net, f. o. b. boat at Boston, which would be a discount of six per cent provided the payment was made within ten days. Mr. Brooks signed the second order under the direction of the mayor in the name of his firm, but it was understood at the time between the mayor and himself that he did this in behalf of the city and there was no dispute between the parties that this was the fact. Mr. Piers sent both orders on to his firm in Boston by mail that same night and they were received in Boston on April 3d.</p> <p>On the same day the machines were delivered by Tyler & Co. to the Kennebec Steamboat Co. at their wharf in Boston to be shipped by the first boat to Augusta. The first boat left Boston on Saturday, April 14th, arriving in Augusta the following day, April 15th, and the two machines reached Augusta at that time. On arrival in Augusta they were taken by the city authorities and removed to the east side of the river. It was the understanding, when the sale was made, that if two machines wmi'e taken, the plaintiffs should send some one to setup the machines and start them without expense to the city.</p> <p>After this purchase by the city, a representative of the Western Reversible Machine Co. came to Augusta and saw the authorities with relation to showing them one of his machines and about the 20th of April brought one of his machines from Portland to Augusta for the purpose of showing its workings to the city authorities. About that same time one Mitchell, an employee of Tyler, Conant & Co. of Bangor, was sent by direction of the plaintiffs to set up and start the Champion machines, the plaintiffs having no idea that there was to be ány competitive trial between the Champion and the Western. Both machines, however, were tried at the same time. Kimball, the representative of the Western operated his machine for a half day near the mayor’s house and in the presence of the street commissioner, but the Champion was not used at all. On the subsequent day both machines were used, one by Kimball, and the other by Mitchell who came to set up the Champions, in the presence of a large number of people and the Western machine seemed to please the people better than the Champion. No word was sent by the city to the Boston house in regard to this decision, but Mr. Piers was in the city some time afterwards and the mayor told him that he had decided that the other machines were preferable, and had taken them and that his machines, the Champions, were subject to his order. Mr. Piers replied that the machines had been sold to the city and he should expect the city to pay for them.</p> <p>Both Champion machines are still in possession of the city, never having been returned to the plaintiffs, and have not been paid for.</p> <p>The defendant introduced evidence of the conversation at the time of signing the orders, claiming that it was admissible to show its acceptance and its terms; and contending that the orders were mere offers ; that the defendant objected to buying a machine without seeing it operate; also that plaintiffs’ agent said that unless it fulfilled the warranty on the back of the order, the city was under no obligation to take the machine. The defendant als'o introduced the circulars referred to in the order quoted above. The defendant declined to set up a claim in recoupment.</p> <p>The written order with the warranty on the back and the circular, constituted the completed contract between the parties, and certainly there is no suggestion of any condition whatever in this.</p> <p>The order for goods to be paid for in cash in ten days is hardly consistent wdth a conditional sale such as is claimed here.</p> <p>The defendant and the plaintiffs are bound by the written contract which they themselves made and the warranties accompanying, and there is no warranty whatever as to perfect satisfaction : a very risky guaranty to be made in any trade.</p> <p>The sale was .absolute and unconditional but accompanied with the warranty set forth, and with the further warranty that the machine would do as claimed in the circular, this warranty to continue for the term of one year.</p> <p>The sale not properly rescinded: Conner v. Henderson, 15 Mass. 319 ; Henderson A7. Sevey, 2 Maine, 139; Kimball v. Cunningham, 4 Mass. 502 ; Dorr v. Fisher, 1 Cush. 274; Thayer v. Turner, 8 Met. 550; Morse v. Brackett, 98 Mass. 205 ; Snow Ar. Alley, 144 Mass. 546.</p> <p>Rejecting the oral contract, and confining the contract to the order and Avarranty upon the back of the order, vre contend that, properly construed, the order is conditional. The paper offered is signed by the mayor alone. Nothing is offered signed by the plaintiffs. The paper is defendant’s offer or proposition. The acceptance Avas in sending goods. Our offer, so made, was conditional.</p> <p>It is immaterial whether the phrase is construed as a condition precedent to vesting of title, ora warranty. If condition precedent, plaintiffs must prove compliance or fail here. If warranty, we must prove breach and rescission before suit brought.</p> <p>Before acceptance, the city had a right to test the machine to see if it would do as claimed in the circular.</p> <p>The machine did not do as claimed for it in the circular. Defendants properly exercised their right of rescission. These facts as to the rescission are uncontradicted. The method was ample. Formal tender at any particular place or in any particular manner became unnecessary, when plaintiffs said they would not take them back, claiming that the sale was absolute.</p> <p>If the machines were sold subject to their giving satisfaction, our right to rescind was clear, for they gave satisfaction to no one.</p> <p>If the oral representations are to be rejected and the contract construed as a sale' with a warranty of quality, then, under Maratón v. Knight, 29 Maine, 341, we had a right to rescind the contract and return the property as we did.</p>

Agreed statement. This was an action in which the plaintiff, as administrator of John P. Larrabee, deceased,.declared on the money counts, and claimed to recover of the defendant the sum of two hundred dollars, with interest thereon, for money of the estate of the said John P. Larrabee, deceased, drawn by said defendant from the Auburn Savings Bank after the death of said John P. Larrabee, to w'it, on the thirteenth day of June, A. D., 1892, without right or authority, and…

On motion and exceptions. This was an action of libel, brought by the plaintiffs, who are contractors, against the defendants, who are proprietors and publishers of the Bangor Daily Commercial. The alleged libel was published March 28, 1894, during the progress of a municipal campaign in Bangor in which the election of F. O. Beal for mayor was pending. Plea, general issue and brief statement of special matters in defense.

On exceptions. This was an action on the case for slanderous words alleged to have been published in the Lewiston Journal, which words the plaintiff claimed had damaged the plaintiff. The words were descriptive of the filthy or unclean condition of the plaintiff’s person and the unclean condition of the habitation of the plaintiff at the time of the publication of the article in the paper complained of as slanderous. The date of the publication was February 24, 1894.

<p>Pleading. Practice. Gosts. B. 8., c. 82, § 124.</p> <p>Where a plaintiff has become nonsuit in an action for covenant broken, the declaration being upon an indenture, or lease, under seal, and afterwai’ds commences another action in assumpsit upon an account annexed for rent, the cause of action is not the same within the meaning of E. S., c. 82, § 124, which provides that where a “ second suit has been brought for the same cause before the costs of the former suit are paid, further proceedings shall be stayed until such costs are paid.”</p> <p>There is a material difference in the form of action, the declaration, the plea, the measure of damage, and the form of judgment.</p> <p>See Bruns. G. L. Go. v. United Gas, éc., Go. 85 Maine, 532.</p>

On exceptions. This was an action of assumpsit on account annexed 'to recover $110.88 for goods sold and delivered. The case was referred to the court with the right to except. .Judgment being rendered in favor of the plaintiff, the defendant filed exceptions. It appeared from the testimony that on November 18th, 1893, the plaintiff received by mail from the defendant, an order signed by the defendant under the name of II.

On report. This was a bill in equity, heard on bill, answers and proofs, in which the complainants, being members of a committee who claim to have acted as the agents of the respondents for the purchase of a lot and erection of a shoe shop thereon in the village of Springvale, sought relief by contribution and account for money advanced and debts contracted in the purchase of the lot and the erection of the shop, over and above the amount of the fund subscribed for that…

On exceptions. The case is sufficiently stated in the opinion. The plaintiffs ceased to labor on the premises within thirty days of the time when the notices of liens were filed in city clerk’s- office. Turner v. Wentworth, 119 Mass. 464; Miller v. Batchelder, 117 Mass. 179.

<p>Agreed statement.</p> <p>This was an action of assumpsit upon the following account annexed to the writ:</p> <p>"New Sharon, January 1, 1894.</p> <p>" Thomas R. Fletcher :</p> <p>To New Sharon Water Power Co., Dr.</p> <p>" Balance due for rent and use of water from dam to January 1, 1893, as per contract, . $199 79</p> <p>"Rent and use of waterpower from January 1,1893, to January 1, 1894, as per same contract,' 138 89</p> <p>Due January 1, 1894. $338 68”</p> <p>There was also a special count in the declaration upon the agreement in writing, called lease or agreement, found below. The parties agreed upon the following facts :</p> <p>"The dam was constructed by the company, and the mill-owners commenced to use the water from the bulkhead about the first of October, 1889. The mill-owners agreed among themselves to employ William Sewall and one Joseph Keith to measure and apportion the volume of water used by them respectively* who attended to that duty and reported to the mill-owners that the defendant was using 279 inches ; William Croswell, 200 inches; Young & Hutchinson, 250 inches, and Nathaniel Harding, 150 inches. December 26, 189.1, the defendant Fletcher paid the company on account his share for the water used, $136.39, and February 6, 1892, he paid on account $111.09, and took receipts therefor from the treasurer of said company. . . . Defendant has paid nothing more. January 8, 1891, the defendant’s mill was burned. He made partial ai’rangementsto rebuild, got out part of his lumber, but abandoned the purpose and the mill has not been rebuilt, and in the fall following the fire, the water was shut off by Mr. Harding and Mr. Hutchinson, by arrangement with Mr. Fletcher, to protect the mills below till the mill of defendant should be rebuilt or the flume repaired, and was not used by the defendant after that time. Mr. Fletcher died March 1, 1894. No complaint is made but that the company has sufficient water to meet the demands of the mill-owners and has always been ready to furnish the same. The full court is to render such decision as the law and facts require.”</p> <p>(Lease or Agreement.)</p> <p>" This indenture — made this twenty-seventh day of March, A. D., 1889, between the New Sharon Water Power Company of the first part, and the present mill-owners at New Sharon village of the second part. Witnesseth :</p> <p>"That the New Sharon Water Power Co., for the consideration hereinafter mentioned, doth covenant and agree to construct and maintain a dam and bulkhead across the Sandy river at New Sharon village, near by the mills now situated thereon, and to use all due care and diligence in keeping the same in good repair, and upon their failure or neglect to make necessary repairs on the same, the mill-owners shall have the right to make such repairs after giving the said Water Power Co. reasonable notice that such repairs are needed, and to deduct the cost of said repairs from rents due from them to said Water Power Co., and the said Water Power Co. doth demise and lease to said mill-owners the right to draw water as follows :</p> <p>" The grist-mill to draw water m quantity sufficient for the purposes of the mill in supplying the demands of its patrons, not to exceed six hundred (600) square inches.</p> <p>"The saw-mill to draw water in quantity- sufficient for the purposes of the mill in supplying the demamds of its patrons, not to exceed the number of inches now drawn.</p> <p>"One chair-factory to draw water in quantity sufficient for its own use, not to exceed the number of inches now drawn.</p> <p>" Harding’s mill to draw water in quantity sufficient to run the mill and business now connected with the wheels, not to exceed the number of inches now drawn.</p> <p>"And the said mill-owners, T. R. Fletcher, Wm. Croswell, Young & Hutchinson and Nath’l Harding of the second part in consideration of the foregoing do hereby covenant and agree to lease of said Water Power Co. the right to draw and use water in manner and amount as aforesaid, and to pay for the same as follows: for the whole amount of water so drawn said mill-owners to pay the annual rental of five per cent on the cost of said dam and bulkhead not to exceed six [amended ' not to exceed seven’] thousand dollars, each separate mill-owner to pay as his part of said sum, the same per centage as the number of inches drawn by his mill shall be of the whole number of inches drawn by the four mills. Said payment well and truly to be made at the office of the treasurer of said Water Power Co., at New Sharon, on the first day of January of each year.</p> <p>" And said mill-owners do further covenant and agree that any other party leasing the right- to draw surplus water of said Water Power Co., shall have the right to draw water from the flume by paying their proportional part of the expense of maintaining said flume.</p> <p>"And in further consideration of the foregoing agreement, on the part of the said Water Power Co., the said several mill-owners do hereby bargain, sell and convey, and forever quitclaim to the said Water Power Co., all the rights and privileges in and to the old dam and its connections with the shores, together with the several rights to draw water in connection with said mills and as now held and conveyed to said mill-owners by deed.</p> <p>"The conditions, of this conveyance are such that should the said Water Power Co. neglect or refuse to well and truly perform the obligations of the foregoing contract of the first part, then this conveyance to be null and void, otherwise to remain in full force and effect.</p> <p>" Said mill-owners further agree that in case at any time they shall neglect or refuse to pay the annual rental as aforesaid, then said Water Power Co. shall have the right to prevent such mill from drawing or using any water until said rent is paid.” . . .</p> <p>Upon a covenant in a lease of a mill for years to pay rent, the rent may be recovered after a destruction of the mill by fire, although the lessor does not rebuild. Fowler v. Boil, 6 Mass. 63 ; Hallett v. Wylie, 3 Johns. 44 and cases.</p> <p>Where a party, by his agreement voluntarily assumes or creates a duty, or charge upon himself, he should be bound by his contract, and the non-performance of it will not be excused bv accident or inevitable necessity. Adams v. JSTichols, 19 Pick. 276.</p> <p>If the lessee desired an exception, he should have provided for it in his contract. Phillips v. Stevens, 16 Mass. 238.</p> <p>This indenture between the parties was, in operation, a deed of this right to use water as settled in Mill Dam Foundery v. Hovey, 21 Pick. 431.</p> <p>Counsel also cited : Davis v. Alden, 2 Gray, 313 ; Kramer v. OooJc, 7 Gray, 553 ; The Lehigh Zinc & Iron Go. v. Bamford, 150 U. S., 665; Warren v. Wagner, 75 Ala. 188 (51 Am. Rep. 446) ; Grocker v. Hill, 61 N. H. 345 (60 Am. Rep. 322) ; 3 Kent Com. (12 Ed.) § 465 and notes ; TaylorL.&T. (7 Ed.) §§ 372, 373 ; 1 Wash. R. P. -(4 Ed.) § 4, p. 505 ; Sheets v. Selden, 7 Wall. 424.</p> <p>Not only was there no destruction of the subject matter of the lease, but the tenant has not shown that he surrendered or offered to surrender, the benefits thereunder. Googan v. Parker, 16 Am. Rep. 659 (2 S. C. 255).</p> <p>A tenant cannot abandoned his title and go out unless the surrender is accepted by his landlord. His right of possession remains the same. Welcome v. Hess, 25 Am. St. Rep. 145 & note (90 Cal. 507) ; also note to Bowen v. Glarke, 29 Am. St. Rep. 625 (22 Oregon 566).</p> <p>If the tenant be not relieved from rent, after destruction of his landlord’s property, a fortiori, he cannot obtain absolution, when the property destroyed is his own, and within his own control and option to rebuild.</p>

<p> Railroad. Mileage Booh. Custom. </p> <p>Mileage books contain a contract between the railroad and the passenger, to which the latter affixes his name, and expressly provide that the coupons shall be detached by the conductor. Held, that this .provision fairly implies that the conductor has the right to determine from what part or parts of the book the coupons shall be taken.</p> <p>The plaintiff handed his mileage book to the conductor and requested him to take his fare from the back part of it. The coupons were numbered in regular order from front to back and a portion of the leaves in the back part only had been detached, leaving six or eight coupons that were a part of the last leaf. The conductor took off these coupons from the last sheet and the remainder of the passenger’s fare from the front of the book. Held, that the plaintiff had no right to determine from which part of the book his fare should be taken; and that the conductor in detaching coupons from the front part of the book, contrary to the passenger’s request, did not exercise ' an unlawful dominion over the book.</p>

<p>Tax. Ways. Towns. Highway Surveyors. Boad Commissioners. B. S., c. 18, §§ 78, 79.</p> <p>When a town elects more than one road commissioner,, the municipal officers must name one of them to be chairman, and he is required to keep the rate hills and a record of the money received and paid, and hold the money subject to payment as the commissioners order, and he must give a bond with sureties for the faithful performance of his duties. When only one is chosen, he must give a like bond. R. S., c. 18, § 79. When no such appointment of chairman has been made, and no such bond has been given, held, that the persons elected as road commissioners are not legally organized or qualified to act.</p> <p>In such case, and there being no highway surveyor, there is no town officer who can legally demand and collect highway taxes; or make the returns to the assessors necessary to lay the foundation for collecting the amount in money under R. S., c. 18, § 76.</p> <p>A town voted to raise two thousand dollars for the support of roads. and bridges to be expended in highway labor under the supervision of highway surveyors. Three road commissioners had been elected but were not organized or qualified to act. No highway surveyors were elected or appointed. In an action at law to recover a tax in money in this case, held, that the defendant could neither be required to work out such tax in labor, nor pay the same in money.</p>

On exceptions. This was an appeal by Orville D. Lambard from the probate court, Kennebec County, heard by the court below with the right to except. Julia E. Johnson, sister of the appellant, who died in Paris, France, October 25, 1892, left a will which was filed in the probate court for Kennebec County, June 5, 1893, and under which will certain real estate in Augusta was devised to her brother, the appellant.

<p>On exceptions.</p> <p>This was an action of trover to recover for the conversion of personal property, described in the writ as follows : " A red mare, at that date eight years old, being the same mare that George W. Pushor purchased of John Smith, of the value of fifty dollars. The plaintiff claimed to be the owner of the property described in the declaration by virtue of a chattel mortgage given by George W. Pushor to the plaintiff and others, upon various horses and other personal property, included in which was one red mare eight years old, and being the same purchased of John Smith ; and one red mare, seven years old, and being the same that I, meaning the said Pushor, purchased of James F. Connor.”</p> <p>At the trial the defendant claimed and introduced evidence tending to show that he never had bought, owned or had in his possession, or converted to his own use in any way, the red mare that George W. Pushor purchased of John Smith, but admitted that he had purchased of Pushor the red mare bought of James F. Connor. The plaintiff introduced evidence tending to show that the plaintiff and his counsel saw in the possession of the defendant a red mare, and that a sufficient demand was made upon the defendant for a red mare which demand was refused. There was no dispute but that the red mare in the possession of the defendant at the time of the demand was formerly owned„ by Pushor and ivas mentioned in the bill of sale, and was sold by Pushor to the defendant.</p> <p>Upon the second day of the trial the plaintiff moved to amend his writ by inserting a new count. The purpose of this amendment was to cover the red mare, mentioned in the mortgage as bought by Pushor of James F. Connor, and which was subsequently sold by Pushor to the defendant.</p> <p>The pi’esiding justice ruled that, as a matter of law, the amendment could not be allowed so as to recover for the conversion of the red mare bought by Pushor of Connor, because it referred to a new and different cause of action and for this reason refused to allow the amendment. To this ruling and refusal the plaintiff excepted.</p> <p>It was agreed that, if the law court should hold that this was amendable as a matter of law, the amendment should be allowed upon such terms as the law court or a single justice should determine.</p> <p>Exceptions lie to rulings in matter of law. Rowell v. Small, 30 Maine, 30; Hayford v. JEverett, 68 Maine, 508.</p> <p>Where the defendant is in no way connected with or liable for the horse actually described in the writ, it can make no difference to him whether it be a horse which never existed, or one with which neither plaintiff nor himself ever had had any connection, or one which plaintiff actually did own. So far as defendant is concerned, it is exactly the same. He is liable for the horse which he actually converted. He knows that plaintiff' in this action is seeking to enforce a claim for that animal because of the demand made upon him for it, and that it is the-conversion of that horse that is intended to be complained of in the declaration. He is not misled by the faulty description.</p> <p>Why, then, should he not be required to answer to the cause-of action which he all the time has understood the plaintiff to be-endeavoring to enforce against him ?</p> <p>But inasmuch as while they were together the demand was. made for the horse then in the defendant’s possession, the latter-well knew, when the suit was brought against him, what horse-was actually intended to be described in plaintiff’s writ.</p> <p>It was the horse demanded of him, and no matter what defect there might be in the description of that horse, it was simply a misdescription. He knows the cause of action and any failure-to describe that horse is a mistake in pleading from which our-liberal system of jurisprudence aims to relieve parties by allowing amendments either upon or without terms. Spaulding’s. Practice p. 313; Ball v. Olaftin, 5 Pick. 303; WaHaerv. Fletcher, 74 Maine, 142 ; Haynes v. Jaclcson, 66 Maine, 9'3.</p> <p>The defendant, by the demand made upon him, was informed of the claim actually made upon him. Any error made in describing the animal he knows, is a misdescription. He is not injured by this mistake, even if the description does cover another horse which some neighbor, or even the plaintiff may own.</p>

On report. This was an action reported by the Superior Court for Kennebec county.

On exceptions. This was an action at law which came before this court on exceptions by the plaintiff to the overruling of her demurrer to the defendant’s' plea in equity filed under the Law and Equity Act of 1893, c. 217. The action was assumpsit upon a promissory note.