Volume 93 — Maine Reports

On Exceptions by Defendants. This was an action against the defendants for alleged negligence by reason of which the plaintiff’s intestate was instantly killed. The defendants at the first term filed a general and special demurrer to the declaration, which demurrer,' after joinder on the part of the plaintiff, was overruled. To this ruling the defendants excepted.

On Exceptions by Defendant. This was a real action referred to the court with leave to except. The plaintiffs’ claim of title was under a sale upon executions from this court against the defendant. The only objection made by the defendant against this title was the insufficiency of the sheriff’s deed, which appears in full below.

<p> Practice. Record. Judgment. Nonsuit. </p> <p>When a nonsuit has been entered by order of the presiding judge and judgment has been entered thereon, it does not lie within the discretion of the judge, at a later term, to order the case to be brought forward on the docket, and the entry of nonsuit to be stricken off.</p>

<p>On Exceptions by Dependants.</p> <p>This was an action of assumpsit upon the following guaranty executed by the defendants:—</p> <p>“ Whereas Wilson & Berry, copartners of Camden, Knox Co., Maine, have sold to us all their right, title and interest in and to the machinery, pulleys, belts, couplings, hangings, and 16 feet of shafting now in the mill in said Camden occupied by them and known as the ‘ Bakery Building,’ said machinery being mortgaged to Chase & Son & Co. of Portland, and sold to us subject to said mortgage.</p> <p>“Now therefore in consideration thereof we hereby guarantee to said Wilson & Berry that we will assume said mortgage debt and pay the notes secured by said mortgage and hold all parties to said notes harmless from all damage on account of said notes.</p> <p>November 29, 1892.</p> <p>M. K. St. Clair & Co.”</p> <p>The case was heard by the presiding justice without the intervention of a jury, the right of exception being reserved, who found as follows:—</p> <p>“ I find as a matter of fact that Wilson and Berry, to whom the defendants gave the guaranty in question, succeeded by purchase to all the rights which Wilson, Berry & Co. the makers of the note described in the writ, had in the property described in the mortgage therein named, and that the defendants, by virtue of their purchase, entered into possession and enjoyment of the said property subject to said mortgage. There being no controversy in relation to any of the averments of fact in the declaration, judgment is rendered for the plaintiff for the sum of sixteen hundred & one 70-100 dollars (#1601.70).”</p> <p>While courts have held that actions may be maintained by third parties for whose benefit a promise has been made, when the agreement is made to parties directly liable to them, they have disallowed such actions when not made to parties directly liable to the plaintiff.</p> <p>The earliest and most constant courts to maintain the doctrine are the courts of New York. But that court says, “in every case in which an action lias been sustained there has been a debt or duty owing by the promisee to the party claiming to sue upon the promise.” Vrooman v. Turner, 69 N. Y. 280; Merrill v. Q-reen, 55 N. Y. 270.</p> <p>In Bohanan v. Pope, 24 Maine, 93, it was agreed that the plaintiff was hired by Whitney and worked upon the logs in hauling and cutting them. Before hiring the writing was shown to him. wherein defendant promised to pay.</p> <p>In Lewis v. Sawyer, 44 Maine, 332, the money was put into defendant’s hands for the use of the plaintiff.</p> <p>In Maxwell v. Haynes, 41 Maine, 559, defendant received funds for which he promised to pay a debt of A. to C.</p> <p>In Dearborn v. Parks, 5 Maine, 81, money was left in the hands of defendant to pay plaintiff a debt owed to him by A.</p> <p>Meech v. Ensign, 49 Conn. 191, 44 Am. Ileports, 225, is the argument against the doctrine and reviews the cases with great clearness.</p> <p>Mellen v. Whipple, 1 Gray, 317, is also in line.</p> <p>“It is not every contract for the benefit of a third person that is enforceable by the beneficiary. It must appear that the contract was made and was intended for his benefit. The fact that if the contract is carried out according to its terms would inure to his benefit, is not sufficient for him to demand its fulfillment. It must appear to have been the intention of the parties to secure to him personally the benefit of its provisions.” Sayivard v. Dexter, Horton Co., 72 Fed. Hep. 765.</p>

On Exceptions by Petitioner,. Petition for habeas corpus, in which it appeared that the petitioner was twice convicted in the municipal court for, the city of Lewiston, of the crime of keeping intoxicating liquors witb intent to sell tlie same in violation of law, and sentenced therefor. From each conviction and sentence the petitioner appealed to the Supreme Judicial Court.

On Motion by Dependant. This was an action on the case, brought by the plaintiff to recover damages for injuries which he received September 19, 1896, while traveling upon the public highway, along the defendant’s premises in. the town of Hermon.

On Motion and Exceptions by Dependant. This was an action on the case to recover damages for the loss of real and personal property belonging to the plaintiff company and alleged to have been destroyed by fire communicated by a locomotive engine then owned and operated by defendant company.

On Exceptions and Motion bt Defendant. This was an action brought by Margaret Sullivan to recover from the city of Lewiston the sum of $821 for board, care and nursing of her brother, Daniel McCarty, from November 3, 1891, to February 3, 1894, 821 days at $1 per day.

On Exceptions by Dependant. This was a complaint for alleged violation of a by-law of the town of Rockport prohibiting the use of a certain portion of Union Street in that town by heavily loaded teams. The defendant was convicted before a trial justice and appealed to this court sitting at nisi prius.

On Motion by Defendant. This was an action on the case to recover damages for personal injuries sustained by the plaintiff while employed as a brakeman upon the track of the defendant company at Sherman Junction, and in attempting to take certain cars there situate upon the line of the connecting railroad, the Bangor and Aroostook railroad.

<p> Mortgages. Future Advances. Subsequent Purchaser. Bond. Notice. Interest. </p> <p>A mortgage may properly be made to secure future advances in addition to present indebtedness.</p> <p>When the present indebtedness is for money hired upon the security of a farm, other money subsequently hired by the mortgagor of the mortgagee with which to purchase other land for the enlargement of the farm, may appropriately be covered by a clause in the mortgage that it shall secure “also all other debts which the mortgagor may contract with the mortgagee.”</p> <p>Where the mortgage consists of an absolute deed duly recorded and a conditional bond back for reconveyance which has not been recorded, an after-purchaser is not bound by a provision in the bond securing future advances, unless he had actual notice of the terms of the bond when his own conveyance was taken.</p> <p>A promise to pay interest in excess of six per cent per annum does not in this state bind the promisor unless the agreement be in writing.</p> <p>Parties to a mortgage, cannot, as against subsequent parties in interest, stipulate by an unrecorded agreement for any terms not a part of the original contract.</p> <p>See Bunker v. Barron, 79 Maine, 62.</p>

On Report. This was scire facias against trustees who did not disclose in the original action. The plaintiff contended that the defendants in this ease did not by their disclosures exonerate themselves from liability, and this question was submitted to the decision of the law court by the parties. The transactions between the parties were evidenced by no writings except the bill of parcels of personal property and deed of land mentioned in the opinion of the court.

On Report. The case appears in the opinion. This action cannot be maintained unless by virtue of c. 33, statute of 1887. Under this statute the town cannot be holden for two reasons. 1st. In that statute no action is given against the town. Mitchell v. JRockland, 52 Maine, 118. 2nd. No duty is by that statute put upon the town, but the duty, if any there be, is upon the municipal officers.

On Motion and Exceptions by Plaintiee. This was an action on the case to recover damages from the defendant for alleged false and fraudulent written representations made by him in relation to the standing of the Gardiner Woolen Company. The case was tried to a jury in Kennebec county who returned a verdict for the defendant. The plaintiff filed a general motion for a new trial and took exceptions to certain portions of the charge to the jury.

<p>Disseizin. Co-Tenant. Tax-Deeds. Statutory Notiee. Conversion. D. S., e. 95, §§ 5, 18, 19.</p> <p>One who, under a claim of sole ownership of a lot of wild land, has, for over twenty years, made partial clearings on portions of the lot, but whose occupation has been somewhat casual and intermittent, connected a good deal with lumbering operations, does not thereby eifect a disseizin of the true owners who stand in relation of co-tenants with him; nor is his claim of title made any better by tax-deeds from the state' or county which are defective and thereby void.</p> <p>The plaintiff acquired title by deed to one-sixteenth in common and undivided of a tract of wild land while the other owners, or persons claiming under them, were carrying on a lumbering operation on the tract, without permission of the one-sixteenth owner or any statutory notice to him, a portion of the cutting having been before the date of the plaintiff’s deed and a portion after-wards, but all before the deed was recorded, the deed containing a clause that the grantor-“assigned, sold and conveyed to the grantee, all his rights and claims for stumpages for trespasses on and from said land from October 1888.” Held; that the deed and assignment in it gave to the plaintiff title to one-sixteenth in commo.n of all the lumber cut during the operation; that it was immaterial whether the deed was recorded or not; and that the plaintiff can maintain an action of trover for his one-sixteenth interest in the logs against the- defendants who pm-chased the same and (evidently) converted them into pulp before the action was brought.</p>

On Repobt. These two cases,' heard together and depending on the same facts, were petitions for mandamus. The Maine Water Company, the party in interest, assumed the defense of both actions. By agreement of the parties the cases were reported to the law court for argument and determination, — the petitions to be taken as the alternative writs and returns thereto. The cases appear in the opinion.

Agreed Statement. The parties agreed to the following facts: The plaintiff was a laborer on the defendants’ railroad, working under the firm of Hilton and Watson, who were sub-contractors under E. J. Colley & Company, who were sub-contractors under William E. Kenefick, who was a sub-contractor under the J. P. McDonald Company, who were contractors with these defendants. He worked continuously for the same sub-contractors during June, July, August and September, 1898.

On Report. This was a petition for review dated January 21, 1898. The facts are stated in the opinion. The statute applies to cases decided by a referee under rule of court. Gooding v. Baker, 60 Maine, 52.

<p>On Motion by Defendant. •</p> <p>This was an action on the case brought by the assignees in insolvency of the Bangor Pulp & Paper Company to recover the value of fifty shares of stock of the insolvent company, which they allege the defendant either agreed to take or did take, soon after the organization of the corporation, and for which he bas never paid.</p> <p>The Bangor Pulp & Paper Company was organized under the laws of the State of Maine, January 14, 1892, with a capital stock of one hundred and fifty thousand dollars, the par value of each share being one hundred dollars; which capital stock was after-wards increased to three hundred thousand dollars. October first, following its organization, the company leased the plant of the Orono Pulp & Paper Company, located at Orono, which it operated until April, 1896. June 4th, 1896, upon a petition filed by its creditors, the company was declared insolvent, and on the twenty-fifth day of June, the plaintiffs were duly appointed assignees of the insolvent corporation.</p> <p>The circumstances under which the stock in question was issued appear as follows: December 7, 1891, the Orono Pulp & Paper Company entered into an agreement with H. S. Rice and B. F. Hosford in which they agreed, upon completion of a paper mill to be thereafter completed and ready for operation, to execute a lease of all its property and rights, including a pulp mill then in successful operation at Orono to said Rice and Hosford, or to a corporation to be formed by them, for a term of twenty-five years at a rental thereon stipulated, and on January 14, 1892, the Bangor Pulp and Paper Company was incorporated.</p> <p>March 1st, 1892, Robert W. Sawyer was elected treasurer and on the 1st of August, 1892, Messrs. Hosford and Rice assigned to the Bangor Pulp & Paper Company their contract with the Orono Pulp & Paper Company for a lease of their plant, etc., and on the same day, the directors of the Bangor Pulp & Paper Company voted that the assignment of the said contract be accepted, subject to all the obligations therein contained, and that the clerk be directed to notify the Orono Pulp & Paper Company of said assignment, and that “the lease referred to in said contract is to be issued to this corporation.”</p> <p>At the same time, the Bangor Pulp & Paper Company, the plaintiff corporation, voted “that whereas H. S. Rice et als. (others being Hosford) have this day assigned to this company the contract above referred to, this company issue to H. S. Rice ot als. 600 shares of the capital stock in payment therefor, said stock to be issued as follows: 50 shares to H. S. Rice or order, and 550 shares to B. F. Hosford or order.”</p> <p>No stock was issued to Hosford, who without the knowledge of the defendant as he claimed, directed R. W. Sawyer in writing as follows: “Of the 550 shares of stock voted to-day to be issued to my order, please make out as follows: 50 shares, Charles H. Sawyer.” The paper also contained directions how the remaining shares should be made out. The shares were made out in accordanee with the memorandum and a certificate was made unbeknown to the defendant, as he claimed.</p> <p>The defendant testified that this certificate was never delivered to him; was never accepted by him and that he never knew that such certificate had been made out until the following spring, in April, 1893. It remained undetached from the stub in the stock book as late as September 15, 1893, a period of nearly fourteen months.</p> <p>The defendant also testified that he first learned of the existence of the certificate in April, 1893, and that he told the treasurer, R. W. Sawyer, that he would not take it, and on the 29th day of May following he notified Mr. Whitman, the new treasurer; that he would not accept the stock; and he also notified Hosford July 14, following, that he would not take it. The list of stockholders of the company made and returned by its treasurer December 7, 1892, to tbe Secretary of State, as required by law, does not contain the name of the defendant as a stockholder.</p> <p>The plaintiff introduced evidence showing that the defendant was present at a meeting of the board of directors of the Bangor Pulp & Paper Company, held in Boston, April 21, 1892, at which meeting he was unanimously elected a director and was present at a meeting August 1, 1892, when it was voted to issue to H. S. Rice and others six hundred shares of the capital stock of the company; also to issue 50 shares of this 600 to H. S. Rice, or order, and 550 shares to B. P. Hosford, or order. The record of the company shows that the defendant was present and voted for the issuing of the stock. The plaintiff further proved by the testimony of one Corbett, of Boston, that he purchased of the defendant the 50 shares in question for $1500 in July, 1893. The defendant, on the other hand offered evidence to prove that the treasurer R. W. Sawyer, who resigned May 9, 1893, had a claim against the company for $2000 for money lent; that the defendant was in Boston in July, 1893, in negotiation with Hosford trying to get his brother’s money; Hosford said there was a certificate of 50 shares of stock standing in his name and asked him why he did not take it. The defendant told him, as he told Whitman, that he did not consider it belonged to him, that he would not have it and would not have anything to do with it. Hosford said it was of value — was worth to the company $2500 and defendant told him he had better sell it and send the money down to Bangor and pay some bills the company owed down there. Hosford said it was in defendant’s name and they could not sell it; and upon his solicitation Hosford brought out the stock book and asked defendant to indorse it, which defendant did and turned it into the company where, as he says, he supposed it belonged. He left the certificate in that condition with Hosford and it remained in possession of the company and was attached to the stub as late as September 15, 1893. The defendant also proved that the funds with which to pay off the indebtedness of the company to the treasurer R. W. Sawyer, were obtained by him at this time of Corbett and another stockholder through the intervention of Hosford.</p> <p>For the purpose of showing the indebtedness of the insolvent corporation during the time of the defendant’s alleged ownership of the stock, the plaintiff proved that the Agawam National Bank of Springfield, Mass., was a creditor of the insolvent corporation during the years 1892 and 1893 ; and further put in evidence a judgment recovered in the Supreme Judicial court, Penobscot county, by Bertha L. Whitmore, administratrix of the estate of Austin J. Whitmore, against the insolvent corporation rendered June 1, 1896, for $1852 damages. The damages thus recovered were a verdict against the insolvent company for the injuries received by Austin J. Whitmore, October 11, 1892, while employed in the mill of the insolvent company by the explosion of a digester in its mill; and he after-wards died from the effects of the injury. This execution was returned in no part satisfied. See Whitmore v. Pulp Co., 91 Maine, 297.</p> <p>Plaintiffs also offered the proof of debt filed by Bertha L. Whitmore in the insolvent court based upon the foregoing judgment. This evidence was objected to and admitted subject to the defendant’s exception.</p> <p>“ Mr. Gillin — In order to protect our rights, we wish to show that the amount of indebtedness proved against this company in the eoui'fc below exceeded the amount of assets which have been returned.</p> <p>Mr. Appleton — We object. We admit that the assets are not sufficient to discharge the liabilities.”</p> <p>The jury returned a verdict for the plaintiffs of $5000.</p> <p>The actual taking of shares in a corporation is equivalent to a subscription for, or an agreement to take them, under R. S., c. 46, § 47. Barron v. Burrill, 86 Maine, 72. The mere acceptance of shares of stock would have this effect. Thompson’s Law of Corporations, § 1142; Dayton v. Borst, 31 N. T. 435.</p> <p>Hosford was the medium through which the stock was distributed. Neither the defendant, to whom the stock was issued, nor Hosford, through whose order the stock was distributed, paid anything for it. In other words: Hosford was simply a dummy who had no interest whatever in the stock and through whom a division of stock was made without payment. An attempt was made to show that a certain lease was a consideration for the sale of the stock to Hosford and Rice. If Hosford had received any consideration for the stock or had retained any part of it, this claim might have been set up with, some expectation that it would be believed; but as a matter of fact, he never retained one single share of the 550 shai-es voted to him or his order. In other words: He gave away, in one day, $55,000 worth of stock which the defense attempts to show was worth that much or more and for which he never received any consideration whatever. The proposition is too improbable to be believed.</p> <p>The stock ledger shows that certificate No. 2 was issued to the defendant and that it was afterwards, in July, 1893, surrendered by him. Book admissible to show defendant was, at one time, a stockholder. Glenn v. Orr, 96 N. C. 413; Liggett v. Glenn, 51 Fed. Rep. 381; Hoagland v. Bell, 36 Barb. 57; Turnbull v. Payson, 95 U. S. 418; Webster v. Upton, 91 U. S. 65; Glenn v. Springs, 26 Fed. Rep. 494; Holland v. Duluth Iron Go., 65 Minn. 324; 1 Cook, Stocks & Stockholders, § 55.</p> <p>It is not necessary that the certificate of stock be issued. 1 Cook, Stocks & Stockholders, § 192; Barron v. Burrill, 86 Maine, 66.</p> <p>Hice, Hosford and others were promoters: Bosher v. Richmond, etc., Land Go., 89 Va. 455, (87 Am. St. Rep. 879); Ex-Mission Land Water Go. v. Flash, 97 Cal. 610; Alger, Law of Promoters, etc., § 1. The rule is that the relation of the promoter to the corporation and its members is one of trust. Buckley’s Company’s Acts, (5th Ed.) 543; Yale Gas Stove Go. v. Wilcox, 64 Conn. 101-119. What Hosford, Rice and others did, they did for the company. They had nothing to sell, and whatever sum that agreement or lease was worth, above the consideration paid for it, by the company, belonged to the company. Alger, supra, 28; In re Ambrose, etc., Mining Go., 14 Ch. D. 398; Ladywell Mining Go. v. Brookes, 35 Ch. D. 400; Pittsburg Mining Go. v. Spooner, 74 Wis. 307, (17 Am. St. Rep. 149); Plaquemines Tropical Fruit Go. v. Buck, 52 N. J. Eq. 219.</p> <p>The directors of a corpoi’ation occupy a position of the highest trust and confidence and the utmost good faith is required in the exercise of the powers conferred upon them. Mallory v. Mallory Wheeler Go., 61 Conn. 131, 137; F. $ N. A. Ry. Go. v. Poor, 59 Maine, 277.</p> <p>A trustee or agent cannot purchase on his own account, what he sells on account of another; nor purchase on account of another, what he sells on his own account. Thompson’s Corporations, § 458 ; Parker v. Nickerson, 112 Mass. 195; lb. 137 Mass. 487.</p> <p>The agreement between the Orono Company and Rice and others, shows that these parties were acting for the corporation afterwards to be formed, and the fact that within five weeks a corporation was formed, and that the lease provided for in the agreement was made directly to the Bangor company, shows that these parties were acting for the company; that the agreement was made for and in behalf of the company. Whether they are acting as promoters, or agents, is immaterial, because the same rules of law, which will apply to a promoter acting for a corporation, will apply to an agent also acting in the same capacity. In both instances it is a position of trust. Thompson’s Corporations, § 480 ; Stowe y. Flagg, 72 111. 329.</p> <p>The Bangor company was to pay for the lease a yearly rental of $24,680, ten per cent upon the capital stock of the Orono company, also to deposit a certain amount annually for a sinking fund, and to build and equip, as part of the plant, a paper mill. The Orono company received for that lease a rental of $72,000, the sinking fund of $18,000, and a paper mill, which cost $100,000 ; so that for the lease, which the Bangor company held a few months over three years, the Orono company received $190,000, and also received back its original plant. If the position of the defendant is sustained, it paid for that lease, which it held a few months over three years, $240,000,- — -almost $100,000 more than its original capital stock.</p> <p>The officers of a corporation are the trustees of the subscriptions to its stock, and hold them as a trust fund. And the trust cannot be defeated by any device short of actual payment in good faith. Thompson’s Corporations, § 1606; Wetherbee v. Baker, 35 N. J. Eq. 501.</p> <p>All agreements between the subscriber and a corporation, its officers, agents, promoters or members by which payment is dispensed with in whole or in part, or by which colorable or nominal payments are accepted, are void. Thompson’s Corporations, § 1582; Joy v. Manion, 28 Mo. App. 55; Ollesheimer v. Thompson Manufacturing Oo., 44 Mo. App. 172.</p> <p>The statute contemplates that there must be a transaction or contract with the corporation in accepting, subscribing for, or agreeing to take stock. Libby v. Tobey, 82 Maine, 405.</p> <p>No person can be made a stockholder in a corporation and subjected to all the liabilities incident thereto, without his agreement or consent. He must either subscribe for the stock, take it, or agree to take, it, or do some act which is tantamount to an acceptance of the stock before he becomes a stockholder.</p> <p>A mere charge of shares of stock to a certain person, made upon the stock book of a corporation without some evidence that such person admitted the charge to be correctly made, or sanctioned the same, cannot make him an owner thereof, so as to render him individually liable to the creditors of the corporation. Fowler v. Ludwig, 34 Maine, 455, 459.</p> <p>One who never accepts, but refuses to accept any stock in a corporation, is not a stockholder even though the secretary enter his name in the books as such. Mudgett v. Horrell, 33 Cal. 25. There must be some evidence that he sanctioned the entry or admitted it to be correct. Fowler v. Ludwig, supra.</p> <p>Plaintiff must prove: 1st. That the defendant was a stockholder in said insolvent corporation and the owner of 50 shares, and that he became such stockholder August 1, 1892; 2nd. That said stock was not “paid for bona fide in cash or in any other matter or thing at a bona fide and fair valuation thereof3rd. That the Whitmore judgment based upon a tort and the claim of the Agawam National Bank are “debts” within the meaning of the statute contracted during the defendant’s alleged ownership of such unpaid stock.</p> <p>No stockholder is liable under c. 46, of B. S., § 47, for the debts of a corporation not contracted during his ownership of unpaid stock. The Whitmore judgment is based on a tort committed by the Bangor company October 11,1892. Action was brought July 16,1894, tried and a verdict for plaintiff January term, 1895, carried to law court and judgment rendered June 1, 1896. A tort is not a debt contracted. 2 Morawetz Corporations, § 880; Bohn v. Brown, 33 Mich. 257; Child v. Boston, etc., Iron Works, 137 Mass. 516, 519; Cable v. McOune, 26 Mo. 371. A tort claim cannot be a debt contracted by a corporation until it has been reduced to a judgment. Zimmer v. Schleehauf, 115 Mass. 52. A disputed claim for damages sounding in tort, is not a debt before it has been prosecuted to judgment. Hill v. Bowman, 35 Mich. 191; Detroit, etc., Co. v. Reilly, 46 Mich. 459; Stone v. Boston Maine R. R., 7 Gray, 539.</p> <p>Under our insolvent law such a claim could not be proven against this insolvent corporation unless reduced to a judgment, and hence is not a debt until judgment is rendered.</p> <p>Counsel also argued that the debt held by the Agawam National Bank was contracted after defendant’s ownership of stock in this corporation. The note held by this bank, dated July 5, 1894, for $2500 was not a renewal of a previous note or notes, as argued by plaintiffs.</p> <p>The defendant on July 14, 1893, transferred’ ’the certificate of stock in blank to put it back into the hands of the company. If this constituted an acceptance of the stock, the same act that made him a stockholder unmade him — and no debts were or could have been contracted by the company in that instant of time, and hence he cannot be held in this action.</p> <p>The fifty shares of stock made out in defendant’s name were paid for by an assignment of the agreement of August 1, 1892, to the Bangor company. That assignment, on that day, was worth 600 shares of stock of par value of $100 each — or in other words $60,000, “ at a bona fide and fair valuation.” Libby v. Tobey, 82 Maine, 405. The value of this manufacturing plant can be measured only by its net earning capacity. The earning power of property is the barometer of its value. The evidence shows that this plant had the power to earn and was actually earning the net profit of $6000 per month, or $72,000 per year, and had been earning at that rate for fourteen months prior.</p> <p>Out of this $72,000 the Bangor Pulp & Paper Company had to pay to the Orono as rental and for sinking fund $30,850, leaving a clean profit to the Bangor of $41,150 per year out of which it could have paid a dividend of 12 % on its own capital stock of $150,000, and had $22,400 left in its treasury for repairs, insurance and incidental expenses.</p> <p>Can there be any doubt, then, that the assignment of such an agreement taken at a bona fide and fair valuation on August 1, 1892, was at least full payment for the 600 shares of stock issued to Hosford and Rice? — taking into consideration that this was a new mill, had been run and tested by actual operation for eighteen months, — with a trial balance showing profits as above stated, — was not the assignment August 1,1892, with conditions as they existed on that day at its true value, worth the par value of the 600 shares voted as aforesaid ?</p> <p>The assignees cannot maintain this statute action until they have first administered the corporate assets and found out what the deficiency of such assets is. The deficiency measures a defendant’s liability, and the extent of the liability cannot be ascertained unless the extent of the deficiency is first ascertained. A defendant cannot be legally held beyond his statutory liability. Supposing after an insolvent estate has been fully administered, it should appear that the deficiency of assets amounted to the sum of $500. The statute says, in such a case, that that sum would be the measure of the stockholder’s liability ; and by what process of reasoning, or by what considerations of justice, could a stockholder be made amenable to a judgment for any amount in excess of such sum? Ileivett v. Adams, 54 Maine, 206.</p> <p>Mr. Ryder in reply: The statute gives the assignee no power to bring suit, no additional rights which he did not have before at common law', but simply limits the right of the assignee to recover only when there is a deficiency of assets. The most that the assignee can be called upon to show, under the statute, is that there is a deficiency and that the deficiency equals the amount of unpaid stock. The plaintiffs offered to show this, and it was admitted by the defendant. Terry v. Tubman, 92 IT. S. 156. In re G-len Iron Works, 17 F. R. 324, it was held that the corporation being insolvent, the money was not simply owing but presently due, and the opinion holds that no other question could have been presented. Recovery cannot be had without proof of insolvency, but this fact can be readily determined; it need not be determined in advance of the writ.</p> <p>Mr. Gillin in reply: When the aggregate amount due upon shares from all the stockholders, solvent and insolvent, is not sufficient to liquidate the debts of the company, the assignee may bring an action against stockholders without there having been any previous assessment either by the corporation or by the court. See 3 Thompson on Corporations, § 3664, and the case Boeppler v. Menoivn, 17 M.o. App. 447, 455.</p> <p>In the case of Sanger v. Upton, Assignée, 91 IT. S. p. 62, the court says: “ A separate action in law in each case against stock holders is much to be preferred as against a bill in equity jointly against all the stockholders, it is cheaper, more speedy and more effectual.” See also Potts v. Wallace, 146 U. S. p. 689, to the point that “ no assessment is necessary, and it becomes a question for the jury whether the whole of the unpaid subscription was required to pay debts of the corporation or not,” p. 700-1.</p>

Agreed Statement. This was an action o£ assumpsit upon an account annexed as follows : “ Frank Fluff to Alexander, Ernest and Charles Lapointe, Dr. For cutting 184 19-24 cords of wood and lumber in 4 foot lengths on lot of land above described at $.75 per cord, $138.59.” The officer was directed by the writ to attach “the goods and estate of Frank Pluff, of Lewiston, in our said county of Androscoggin, and particularly and especially 224 tiers of hard and soft, cleft and…

On Exceptions by Defendant. This was an action of debt to recover a tax assessed upon defend'ant’s personal estate as an inhabitant of the city of Rockland, in the year 1894, for the sum of twelve hundred and sixty dollars, with interest from the date of the writ. The tax assessed upon defendant’s real estate in Rockland had been paid prior to the commencement of the action.

On Report. This was an action of assumpsit upon an account annexed, brought under R. S., c. 94, § 10, to recover certain rents claimed to be due under a written lease; and also for damages done to the plaintiff’s premises during their occupancy by the defendant. The facts appear in the opinion.

On Report. Bill in equity, heard on bill, answer and testimony to compel specific performance of a contract, dated October 17,1891, between the parties, by which the plaintiff claimed it had the right to purchase, and the defendant was obliged to sell, the rights and works of the defendant at the plaintiff’s option after an appraisal.

On Motion by Dependant. This was the second trial of an action brought by an administrator, to recover damages for the loss of the life of his intestate by reason of the negligence of the defendant corporation, and in which the jury returned a verdict of $1,990 for the plaintiff. The action is brought under the provisions of chapter 124 of the statute of 1891, for the benefit of the father and mother, they being the sole heirs of the intestate.

On Exceptions by Dependant. This was a real action to recover the possession of a strip of land, two rods wide and eighty l-ods long, used as a lane leading from the plaintiff’s premises in Oakland to the Neck Road.

On Exceptions by Dependant. Tbe defendant, who was indicted for the murder of Mary Tarlton at Kittery, on January 23, 1899, was found guilty by a jury trial at the following term in York county.

On Exceptions by Appellant. This was an appeal by Charles Sherer, administrator of the goods and estate of Reuben Sherer, from a decree of the judge of probate for the county of Knox, authorizing Fred Sherer to commence a suit on the probate bond of said administrator, for the benefit of said estate.

Agreed Statement. By agreement of the parties this case was submitted to the law court upon the following agreed statement of facts: “Samuel N. Young, the alleged testator,, died May 2d, 1898, in Berwick, York county, leaving surviving a son, a brother and Carrie E. Chaney, a niece, one of the residuary legatees under the instrument purporting to be said Young’s last will, and the appellants who are nephews and nieces of said Young. “June 7th, 1895, said Young made what…

On Motion and Exceptions by Deeendant. Assumpsit for defendant’s board by the plaintiff on the following account annexed to the writ:— Filmore R. Clary to Sarah A. Clary, Dr. To board, care and nursing from December 25, 1896, to and inclusive of Apr. 1, 1897, 13 weeks and 5 days at $4.50 per week, $61.71 The case was tried to a jury in the superior court, for Kennebec county, where a verdict was returned for the plaintiff. The case appears in the opinion.

On Exceptions by Plaint iee. Assumpsit to enforce a lien on the defendant’s colt under the statute of 1895, c. 25; also for a personal judgment against the defendant.

On Report. The case is stated in the opinion. Motion to dismiss: Where the right to sue is denied it should be by motion or plea in abatement. Vose v. Manly, 19 Maine, p. 331; Kellar v. Savage, 20 Maine, 199; Clark v. Pishon, 31 Maine, 503; Brown v. Nourse, 55 Maine, 230; Dresden School District v. Etna Ins. Co., 66 Maine, 370; Abbott v. Chase, 75 Maine, 83; Min. Sch. Fund v. Kendrick, 12 Maine, 381; Savage Mfg.

On Exceptions by Plaintipe. This was an action of trespass q. c. heard by the presiding justice without a jury and with the right to except. The defendant admitted the acts complained of as a trespass but justified under a search warrant, commanding the search of the locus for intoxicating liquors, issued by the recorder of the Sanford municipal court.

Agreed Statement oe Facts. The case appears in the opinion. Such a license may be verbal or inferred from circumstances. It is an authority given to do some one act or a series of acts on the land of another without passing any interest in the land. Harmon v. Harmon, 61 Maine, 222 ; Cook v. Stearns, 11 Mass. 537. The condition upon which the defendant was permitted to use the plaintiff’s land was reasonable and one which the plaintiff had a legal right to impose.

<p>In Equity. On Exceptions and Appeal by Depend-ant.</p> <p>The case appears in the opinion.</p>

<p>Probate. Guardian. Minor. Pond. Appeal. JÍ. /?., c. 63, § 24; o. 67, § 3.</p> <p>A ward is no longer “under guardianship” after lie becomes twenty-one years of age. And if sucli person, after lie becomes of full age, appeals from an allowance of the guardian’s account, lie is not excused from giving bond, by R. S., chap. 03, § 24.</p> <p>In this case, the appellant was forty-one years old when she appealed, and she gave no bond. Held; that her appeal was, for that reason, rightly dismissed.</p>

Agreed Statement oe Facts and Exceptions by Deeendants. This was an appeal from a decree of the judge of the court of insolvency, for Somerset county, annulling a discharge in insolvency granted to the plaintiff Tuttle.

On Motion and Exceptions by Dependants. This was an action of assumpsit upon an account annexed brought by tbe plaintiff to recover from the defendants as copartners an amount that he claimed to be due to him for his personal labor while in their employ. The account is as follows: East Brownville Maine Slate Company To Wm.

On Report. The case appears in the opinion. The question raised by defendants is not the promise but the consideration. The consideration having been proven by the officer, as well as properly inferred from the case itself, the whole matter would seem to be settled. The consideration need not necessarily, be a benefit to the promisors, and it may move for the original debtor or for the promisee.

<p> Waters. Obstruction. Prescription. Damages. </p> <p>In an action between upper and lower riparian proprietors upon the same stream, the plaintiffs being tbe lower proprietors and tlie defendants tlie upper proprietors, tbe plaintiffs claimed tbat tbe defendants “unlawfully, unnecessarily and wilfully” managed tbe gates at tbe foot of Chase’s Pond, wbicb empties into the stream in question, in such mariner as to obstruct the natural flow of the water in the stream to tbe injury of the plaintiffs. They also claimed that they themselves had the right by prescription, or contract, to control these gates, and that the defendants unlawfully interfered with the exercise of this right.</p> <p>Held; tbat the plaintiffs had no right to control the gates at the foot of Chase’s Pond; and that there was no right by prescription, because the prior use of the gates by the defendants’ predecessors, from which prescription is claimed, was mutually and equally beneficial to the plaintiffs, as well as the defendants. Also; that there was no such right by contract, because an easement or permanent right in a dam or watercourse cannot be acquired by parol agreement.</p> <p>Also; that the plaintiffs are entitled to the reasonable use and enjoyment of the water in the stream and to the natural flow thereof, without obstruction and without diminution, subject only to the reasonable and proper use or detention by the proprietors above. They are not entitled to an intermittent flow, such as might be created by using Chase’s Pond as a reservoir, though such a flow might be more useful.</p> <p>The defendants did not show that they had any beneficial use for the waters in the pond, and admitted that on several occasions they let the waters out of the pond in order to be able to make repairs upon the dam at its foot, and after completion of the repairs closed the gates and allowed the pond to refill. Held; that this was an obstruction of the natural flow, and unless justified, gives the plaintiffs a right to recover the damages sustained thereby.</p> <p>Held; that the facts shown by the defendants are not a justification; and that, therefore, the verdict, so far as it establishes the liability of the defendants, should not be disturbed. But the damages awarded are manifestly excessive.</p> <p>The plaintiffs are entitled to recover damages for the obstruction or detention of the natural flow only, the same flow they would have been entitled to, if there had been no pond, no dam and no gates. Held; that the comparison, evidently adopted by the jury, between the flow in 1883, and the flow during the years for which damages are claimed, is an unfair test, for in 1883 the plaintiffs were getting the benefit of an intermittent flow, which was more useful and more than they could legally exact.</p>

On Motion by Defendant. This was an action on the case to recover damages for the loss of the plaintiff’s leg, etc., while employed in the defendant’s saw mill, in Biddeford, on the twenty-seventh day of September, 1897. The jury returned a verdict for the plaintiff, assessing the damages at 11450.

On Exceptions by Dependant. This was an action by the plaintiff to recover wages for the last two months of a period of six months, under an agreement entered into November 9th, 1897, wherein defendant agreed to employ plaintiff for six months at wages of ten dollars per week, payable weekly. After keeping plaintiff in his employ about two months, or to January 15th, 1898, defendant discharged him without cause.

On Report. The case is stated in the opinion. In Blake v. Blake, 64 Maine, 177, the court did say that husband and wife may not sue each other at law, but quoting 2 Story, Eq.

<p>Will. Probate. Equity. Jurisdiction. B. S., c. 64, §§ 7, 19-</p> <p>This court sitting in equity, cannot establish an unprobated will.</p> <p>If, after probate of a will, a later will, which revokes the first, is found, it should be presented for probate to the probate court. Erom the decree of that court an appeal lies to the supreme court of probate.</p> <p>The prior probate of the earlier will does not preclude the probate of the later will. If the later will revokes the former, upon its probate, the court authorized to admit wills to probate has authority to revise or revoke the former decree, so far as to give effect to the last will. °</p>

On Report. The facts are stated in the opinion. The plaintiff claims that the question of illegality must be held to have been disposed of when the defendant Merrifield settled the other suit and gave the new notes. There was more involved in this settlement than the question of consideration for the original claim against Merrifield. Montgomery, in bringing his suit, claimed to be a holder for value without notice.

In Equity. On Appeal by Plaintiee. Bill in equity, heard on bill and demurrer, praying for an injunction, a receiver, and the winding up of the affairs of the defendant corporation. The presiding justice dismissed the bill.

<p> Sales. Stoppage in Transitu. Spec, and Piro. Laws, 1888, c. 402. </p> <p>Tlie right of stoppage in transitu is merely an extension of the lien for the price which the vendor has, after contract of sale and before delivery of goods sold on credit. The term itself implies that the goods are in transit, and that they have not come into the possession of the vendee. It permits the vendor to resume possession before the goods sold have come into the vendee’s possession, if the latter has become insolvent. The transitus is not at an end until the goods have reached the place contemplated by the contract between the buyer and seller as the place of their destination. Property sold on credit may have been delivered so as to effect title, and yet not have come into the possession of the vendee so as to bar the right of stoppage in transitu. The vital question is, are the goods in transit between the vendor and vendee.</p> <p>Where logs are bargained and sold, to be delivered " over the dam ” at the outlet of Moosehead lake, thence to be driven by the Kennebec Log-Driving Company to the purchaser’s booms and mill, held; that the right of stoppage in transitu remains in the vendor until the logs come into the actual possession of the vendee; and the vendee having become insolvent in the meantime, the vendor has the right to resume the possession of the logs.</p> <p>Also, held; that the right of stoppage in transitu is not lost, as to the logs still being driven, although some portion of the logs sold have drifted into the possession of the vendee.</p>

<p> Sales. Infancy. Possession. </p> <p>In an action of replevin it appeared tliat the defendant received the goods replevied, under a written agreement which constituted a conditional sale to him, and by which the title to the goods would pass only when the price should have been paid. The defendant was a minor and pleaded infancy. Held; that the plaintiffs did not part with the title; and even if the defendant had avoided his conditional contract, as he claimed, the title still remains in the plaintiffs.</p> <p>Also ; that the plaintiffs have the right of possession, for breach of the conditions of contract.</p>

<p> Corporations. Officers. Stockholder. Election. Dissolution. Equity. </p> <p>A bill in equity, asking for an injunction and a receiver, is not the proper remedy when it is claimed that the election of the officers of a corporation is illegal.</p> <p>As a general rule, in the absence of statutory authority, a court in equity -will not dissolve a corporation upon the application of a stockholder, nor will it lay hold of the property of a going concern, and by means of a receiver wind up its business and distribute the assets, because that would be tantamount to a dissolution. To this rule the only well recognized exceptions are. when it has become impossible to accomplish the chartered purposes of the corporation, or when its affairs have been so managed that failure or ruin is inevitable.</p> <p>In a bill in equity by a stockholder against a corporation, charging that the directors have done acts ultra vires and in violation of law, and praying for an injunction, appointment of a receiver and a winding up of the affairs of the corporation, the complainant must allege that the directors in office at the time the bill is brought hare been asked to act, or that they have refused to act, or that failing with the officers, the corporation itself has been asked to protect itself, or that it has refused to do so, or that it is incapable of action, or that the necessary delay in securing corporate action would prejudice the complainant.</p> <p>Held; for want of proper allegations in these respects the bill is demurrable, as it is also demurrable because the charges are in other respects vague, indefinite and uncertain.</p>

<p> Prom,. Note. Association. Pleading. </p> <p>The defendant gave anote in his “official capacity as treasurer of a voluntary association, of which he was a member,” signing it as treasurer, for money lent to and used in the business of the association. In an action on the note the defendant claimed that he was not liable personally because it was the note of the association and not his own personal promise.</p> <p>Held; that if he gave the note in his official capacity for and in behalf of the association, he thereby bound all of his associates, including himself.</p> <p>The non-joinder of a co-promisor is available only by plea in abatement.</p> <p>Held; that whether the note is the defendant’s individual note, or that of the voluntary association, he is liable, in either case, in an action upon it.</p>

<p>On Report.</p> <p>Action of debt to recover a tax. Writ dated February 27, 1899.</p> <p>(Decla ration.)</p> <p>In a plea of debt for that the said defendant corporation on the first day of April, A. D. 1897, was the owner of a saw-mill, wharf and landing-place in said Farmingdale; that it was also on said date the owner of certain personal property, to wit: four million feet of logs of the value of twenty thousand dollai's; ’ that said company was then and there occupying said saw-mill, wharf and landing-place for the purpose of employing said logs in trade, to wit: of manufacturing said four million feet of logs into lumber, and selling the same in the open market; that said defendant company was liable to be taxed in said town of Farmingdale for said logs and the assessors of taxes of said town for the year 1897, duly elected and legally qualified, assessed upon said defendant company on said logs the sum of two hundred and twenty-five dollars, said sum being said defendant’s proportion of the town, county and state tax for said year 1897. And the assessors did on the first day of June, 1897, make a perfect list of said taxes under their hands and commit the same to the hands of John H. Burnham, collector of said town for said year, who was duly elected and duly qualified with a warrant in due form of law for said year, under their hands of the date aforesaid; that said John H. Burnham died on the 16th day of January, 1898, without having completed the collection of taxes committed to him for the year 1897, and that Greorgie T. Burnham, of said Farmingdale, was duly appointed by the selectmen of said Farmingdale, to perfect the collection of taxes of said John H. Burnham, deceased, and was duly qualified by law therefor on the 31st day of January, 1898; and the plaintiffs aver that the said tax was duly and seasonably demanded of said defendant company by said collector prior to the commencement of this suit. Said plaintiffs further aver that the selectmen of said town did on the 6th day of January, 1899, direct in writing the collector of taxes of said town to commence an action of debt in the name of. the inhabitants of said town against said Berlin Mills Company for the collection of said tax and interest due thereon; whereby and by reason of the statute in such casé made and provided, the defendant company became liable and an action hath accrued to the plaintiffs, to have and recover of the defendant company the sum of two hundred and twenty-five dollars.</p> <p>Plea, general issue. ■' ■</p> <p>The case appears in the opinion. '</p> <p>The legislature of 1883 took the suggestion of the court and declared in express terms that the same limitation as to time should extend to exception first. When it changed paragraph 3 from “shall be taxed in such town” to the clause “shall be taxed in the town where so employed on the first day of each April ” it introduced the missing element of limitation of time, as did the legislature of Massachusetts, and met the suggestion of Judge Barrows that with such a limitation, the rule of the Ellsworth case would have been reversed.</p> <p>Compare the language “all logs in any town in this state other than where the owners reside shall be taxed in such town if, etc.” with the present language “All personal property employed in trade, etc., shall be taxed in the town where so employed on the first day of each April, provided etc.” And plaintiffs contend that the meaning is identical.</p> <p>Logs in a distant forest on the first day of April are in no sense “employed in trade.” Nor were these logs, although destined on April 1 for the Farmingdale mill, employed in Farmingdale on April first. “Employed” here means “used.” The phrase is “taxed in the town where so employed on the first day of each April.” In other words, it must appear that on April first the logs were employed or in use in the plaintiff town. An intention on April first to employ the logs at such mill later in the season is not employing them in said town on April first. On April 1, such might be the intention, but logs might be sold on the drive and never reach the mill. To sustain plaintiff’s construction the court must find that the legislature meant nothing by the change of statute.</p> <p>The change of rule was intended to make the basis of assessment more certain and less likely to end in controversy that might deprive towns of expected revenues. Under the old rule, asserting the right to tax in a non-resident town logs in a distant forest if destined for such non-resident town, the validity of the tax depended on proof of such intended destination, the owner’s intention on a given date. Such an issue resting on parol evidence was prolific in trouble and uncertainty. Under the new rule, the actual situs of the logs governs; the non-resident assessors tax the logs seen within their town, the resident assessors with ordinary diligence reach and get at all logs in their own town, on the drive and in the forests, and no issue of jurisdiction is left to credibility on the frailties of testimony. Taxes are levied with a certainty of collection, and evasion of taxation is far more difficult.</p> <p>In the case at bar, it was as easy for the assessors of Portland to get at our logs on the streams as the assessors of Farmingdale. Let the situs govern, and .controversy ends. Such was the reason of the legislature for the reversal of the former rule, to furnish by the rule of actual situs a fixed and certain rule of taxation..</p> <p>Such seems to be the view of this court as expressed in Gower v. Jonesboro, 83 Maine, 142, where the court, by way of dictum, said: “It is the policy of the law that all property, with certain exceptions, should bear its just proportions of the public burdens. The statute contemplates that it should be taxed to the owner, either in the town where he resides or the town where it is situated.”</p>

On Exceptions by Dependant, This was an action brought to recover six months’ rent of land, the plaintiff claiming a lien on the building standing on the land in the city of Lewiston for the amount of the rent, by virtue of the following provisions of R. S., c. 91, § 37:— “In all cases where land rent accrues and remains unpaid, whether under a lease, or otherwise, all buildings upon the premises while the rent accrues, are subject to a lien and to attachment for the rent…

<p>Verdict. New Trial. Malpractice. Evidence. Exceptions. B. 8., c. 82, § 83.</p> <p>Under a motion for a new trial on the ground that the verdict was against evidence, the verdict will not be set aside, unless it is, upon all the evidence, clearly wrong. It is not enough that it may be wrong, or that the court might have come to a different conclusion. Held-, in this case, that the evidence for the plaintiff does not seem inherently improbable, and, if believed, is sufficient to sustain the verdict.</p> <p>In a case of malpractice to an arm where it is claimed that the present condition of the arm is due to the want of care or skill on the part of the defendant, it is within the discretion of the presiding justice to permit the arm to be exhibited to the jury, although the defendant may claim that the present condition of the arm is due to some other cause.</p> <p>It is within the discretion of a presiding justice to admit in evidence an X-ray photograph. Whether it is sufficiently verified, whether it appears to be fairly representative of the object portrayed, and whether it may be useful to the jury, are preliminary questions addressed to him, and his determination thereon is not open to exceptions.</p> <p>A presiding justice in his charge may call the attention of the jury to the differing contentions of the parties, and the evidence by which they seek to support them; and if in so doing, he misrecites the evidence, his attention must be called to the specific error before the jury retires, in order that it may be corrected at once, and an accidental mistrial prevented. And this is so, even if the presiding justice may not require exceptions to be specifically noted before the jury retires.</p> <p>The use of the word “pungent,” by the presiding justice, in alluding during his charge to the jury to iodine or ointment used upon the plaintiff’s arm, though it may be inaccurate, is not deemed to be prejudicial.</p> <p>Reid; that in the remaining instructions to which exceptions are taken, the presiding justice did not invade the province of the jury, or exceed the legitimate province of the court.</p>

<p>Way. Defect. Notice. B. 8., c. 18, § 80.</p> <p>1. To render a town liable for injuries received from a defective way, tbe municipal officers, highway surveyor or road commissioner must have had twenty-four hours actual notice of the particular defect.</p> <p>2. Knowledge of a cause likely to produce a defect is not actual notice of a defect resulting from that cause.</p> <p>3. A heavy fall of snow, which drifts the highways of a town generally, but blows off in spots, is not such actual notice of a particular drift from which an injury is received, as the statute requires.</p> <p>i. If knowledge of such storm could be regarded as notice of the condition of the way at the place of the accident, held; that the plaintiff had the same notice of its condition, and under the statute cannot recover because she had not previously notified the municipal officers of the defect.</p>

In Equity. On Appeal by Complainant. This was a bill in equity praying that a judgment in favor of the defendant Russell be annulled; and that a sale made by him under a license granted by the probate court be decreed invalid; and that the defendant Russell and Reuben and Henry B. Higgins, the other defendants, named in the bill, be decreed to release' all their interest in the premises and to cancel a mortgage held by them thereon.

<p>On Exceptions by Dependant.</p> <p>This was an action of trespass to recover the value of a dog killed by the defendant and belonging to the plaintiff. The jury found for the plaintiff.</p> <p>The defendant, in justification for killing the dog, claimed that the dog was trespassing on his premises and was then, or had been immediately before the shooting, engaged with two other dogs in chasing and worrying his domesticated animals, viz: — tame rabbits, and that the dog was, at the time, outside of the enclosure or immediate care of his owner.</p> <p>The dog was killed on the 24th day of April, 1897; and, as appeared, had not been registered nor licensed for that year as provided by law, although he had been licensed for the preceding year and was then wearing a collar.</p> <p>The plaintiff was allowed to state what was the fair market value of the dog at the time, which was objected to by the defendant, on the ground that, unless the plaintiff could show that the dog was licensed and that he had a right to keep him according to law, he had no market value.</p> <p>The Court.— “I don’t think that element comes in here. I shall rule against that.”</p> <p>When the plaintiff rested his case, counsel for defendant moved a nonsuit on the ground that an unlicensed dog outside of the owner’s premises, cannot have a property value, citing chap. 287 of the public laws of 1893.</p> <p>The Court. — “ For the purposes of this trial I make the ruling that a dog is property.” To this ruling the defendant took an exception.</p> <p>The presiding justice, in part, instructed the jury as follows:— “The defense takes the position that in this case there was no property in this dog to his owner, that he was a nuisance; that any person could kill and slay him because he was not licensed and registered according to the statute of this state. I rule against that proposition.”</p> <p>Upon the question of justification, the defendant requested the presiding judge to instruct the jury “that if the jury find that at the time of the shooting of the dog, he had killed or wounded the defendant’s domesticated animals on the defendant’s premises and was again there apparently for the purpose of destroying others, the defendant would not be liable for killing the dog; but would be justified in so doing, even though the dog was not, at the time, in the act of destroying or worrying the animals aforesaid,” which requested instruction was not given except as it may appear in the charge. In respect to such justification the presiding judge instructed the jury as follows:</p> <p>“It is when he is found in the act. It is not for punishment to the dog; therefore it is not for an act which he has heretofore done. If he had killed ever so many rabbits for the defendant, hours before — on the day before — he had no right to touch the dog.”— “It is when he is found in the act.” — “Bear in mind it is while the dog is found in the act. What is the act? Well, my estimation is, the worrying and the shooting must be substantially at the same time.” To which instructions and l'efusal to instruct, the defendant had exceptions.</p> <p>Charge to the jury:—</p> <p>“Gentlemen of the jury: — This action is to recover damages for the loss of a dog by shooting. That the dog was shot, no question is made. I don’t know as any question is really made that the defendant shot the dog, or ordered him to be shot, so as to be responsible therefor, if there is any responsibility on any one. If his hired man, or agent, shot the dog by his direction or order, or by his assent, then he would be liable, and so would the agent be. If it be proved or admitted that the responsibility for shooting the dog attaches to the defendant, and that the dog was at the time even on the premises of the defendant, but doing no injury, nor worrying his domesticated rabbits, he would be liable to pay the value of the dog, in this case, unless there be some other justification for it.</p> <p>“Now, in the first place, the defendant takes the position that there is no property value in a domesticated dog. I do not concur in that proposition. I rule against it. A dog has value in this state, by our laws, in most respects, the same as any other property, and no man has a right to kill another’s dog, unless the dog is violating a statutory provision. The defense takes the position that in this case there was no property in this dog to his owner, that he was a nuisance; that any person could kill and slay him because he was not licensed and registered according to the statute in this state. I rule against that proposition. I think the question of license or no license, registration or no registration, is between the owner of the dog and the state — a question of finance, affecting only the owner of the dog and the state — and the want of registration does not authorize the killing of the dog.</p> <p>“I make these rulings as matters of law. If I am wrong on either of them, the case can be taken to and settled in the law court above; and if I am in error, that error can be rectified and the case sent back to be tried on the true, admissible grounds, if I have misstated them.</p> <p>“ But the defense does not stop here. There is a very severe statute towards the owner of dogs doing mischief, which embodies one expression or description of the common law of the state which reads, as I will read to you, and which has been stated to you in different forms: ‘Towns may pass by-laws to regulate the going at large of dogs therein.’ Towns may regulate the going at large of dogs by by-laws. There are none here that have been called to our attention.</p> <p>‘When a dog does damage to a person or his property, his owner or keeper, and also the parent, guardian, master, or mistress of any minor or servant who owns or keeps such dog, forfeits to the person injured double the amount of the damage done, to be recovered in an action of trespass.’</p> <p>“You see there is a remedy against the owner of a dog for any damage done by the dog to a person or his property, and the remedy is severe. But that is not this case. It is not a case between the owner of property and the owner of a dog for injury done by the dog; but by the owner of a dog for the unjustifiable shooting of his dog.</p> <p>‘Any person may lawfully kill a dog that suddenly assaults him or another person when peaceably walking or riding ’ — and here comes a portion applicable here — ‘ May lawfully bill a dog who is found worrying, wounding, or billing any domestic animal outside of the inclosure or immediate care of his owner.’</p> <p>“So the defense here sets up its justification on this statute, namely, as they contend, that this dog was found, at the time he was killed, worrying the domesticated rabbits of the defendant, or of the person who killed the dog, or person whose agent or servant killed him. Now, if that be made out, it is a perfect justification by this defendant — if the fact is ascertained by the jury that when he killed the dog, the dog was found worrying his domesticated rabbits. It is not alleged the dog killed any at that time, but that he was endeavoring to kill them; that he was worrying them; and, as severe as it may seem, an owner of domesticated rabbits catching the dog — ‘finding him’ (to use the words of the statute) in the act of worrying the rabbits himself — as the circumstances would be here, if at all — had a perfect right to shoot him on the spot. That is the defense on the facts in this case — the other defense being upon legal propositions, more strictly.</p> <p>“It is when the dog is found in the act. It is not for punishment to the dog. Therefore it is not for an act which he has heretofore done. If he had. killed ever so many rabbits of the defendant hours before, days before, on the day before, the defendant had no right to touch the dog. His remedy would be in another form for the damages done by the dog. The object of the statute is for the prevention of injury to property, and he has a right to shoot the dog when found worrying his domestic animals so as to prevent injury and killing of these animals.</p> <p>“Now, gentlemen, it may be a very nice question to know when the worrying of animals begins and when it ends — to know when a dog had worried them and had ceased to worry them, or whether he continues to worry them, — and I think it is a question of fact for the jury to decide; but I can give a general illustration, a general statement or proposition which may touch somewhere nearly the different contentions of the parties,— the contention of the plaintiff and the contention of the defendant. Bear in mind it is while the dog is found in the act. What is the act? Well my estimation is, the worrying and shooting must be at, substantially, the same time; because, as I have already intimated, for past worrying there is no right of shooting. For present worrying there is a right, and I can conceive of cases where it would be close and difficult to decide. But the facts in this case are not for me but for you to determine upon the evidence.</p> <p>“Now, if the dog had been worrying the defendant’s rabbits, but had ceased his chase, and had retreated from the immediate premises where the worrying was done, and had gone so far off on his retreat that it should be reasonably apparent to the owner of the rabbits that he had ceased his chase and gone away, that the work had been done, and was not to be continued- — I think he had no justification for shooting the dog. As a legal proposition, that would not be during the act, but after the act. But if the black dog, the one in question, the one shot, had been either alone or in consort with the other dogs, worrying the defendant’s rabbits, and had been merely momentarily checked, or held at bay by the girls at the door, or the hired man, or anybody else, and the dog had not quit the chase, but was still intent upon it at a little distance out of his tracks from where he had previously begun to worry the animals, and he was still intent upon the act of worrying, either returning or ready to return as soon as the obstructions for getting at the rabbits were removed from him, — I think you would be authorized, if you see fit, to say that the worrying and killing were coexistent acts, concurrent acts, done at the same time; that they were one transaction.</p> <p>“Now the proposition which I first stated is the one on which the plaintiff more particularly relies. And he goes further and says that the dog was not there at all; and even if he had been and had been engaged in worrying the animals, he had given up the chase, and was retreating, and at such distance that it was apparent to the owner of the animals that the dog had given up the chase. And if such were proved it would subject the defendant to liability; there is no other ground for justification.</p> <p>“ Now, the defendant contends that the dog had not given up the chase; that, while he might have gone out of his tracks, shied off, he was intending to return, and was only held at bay, and upon these different contentions you are to examine the facts. Now which contention is true? You have heard the counsel elaborate them very carefully, and it is for you to decide whether the shooting was done while the dog was found there — if the dog was found there — whether the shooting was done while the dog was engaged in worrying, or whether it was after he had done the worrying; whether it was one act or different and separate acts as to time. You see a space of time would make them different acts. If the dog was away where.he could not act, his worrying was ended; or if it was another time, it could not be held to be the same thing. Therefore, it is that, if the dog was there the night before, that would have nothing to do'with this alleged justification; because it would be a past offense on the part of the dog; it would be past misconduct and not present misconduct.</p> <p>“I don’t know as I can state this proposition any more plainly. The dog must be found in the act, — the act of the dog and the act of the shooting must be so closely connected as to be concurrent acts; as to be essentially done at the same time. It must be one offense, and one condign punishment for it, done at the same time.</p> <p>“ The plaintiff contends that the dog was not there at all, and, if this was the dog seen about there, he was not at the defendant’s house, and was not at the worrying at all. Some question has been made here as to whether the defendant’s witnesses identified this particular dog. I suppose it would not be contended that the dog killed was not the guilty dog, if he was there, and that the dog killed belonged to the plaintiff. But the more particular stress which the plaintiff lays upon the circumstances of the case is that if the dog had been there, if he had done any worrying, he had ceased to do any worrying, he had fled; he had given up his instinctive scent, and was not continuing it; and that anybody could have seen it; that the owner could have seen it; and the hired man could have seen it; and if the dog was the culprit, it was for something that he had done and not for what he was doing.</p> <p>“The proposition of the other side is that, substantially and virtually, the worrying and the killing was done at one time. And as you find whether or not the dog was shot while worrying the little animals of the defendant, — as you find that question, — so you will be authorized to find for the plaintiff or the defendant, so far as this point is concerned. And counsel have been very urgent about it. And dog cases are interesting cases to the owners. Dogs are prized by their owners, and are very annoying to the persons who are troubled by them. This case is to be decided somewhat upon the definitions given you. And (to repeat a little) at the time the dog was shot, was he still engaged in worrying these rabbits (if he had worried them before,) or was that a past act? Was it being repeated and continued along, or had it ceased? There is the distinction you have to draw, fairly, under all circumstances, and as you find it, the verdict must fall on one side or the other, so far as this point is concerned.....”</p> <p>True, the statute does not say specifically that unlicensed dogs may be killed by any one, but by implication it says that such dogs are public nuisances, and if so killed the owner can have no redress or remedy against the killer; because as Chief Justice Shaw says in case of Tower v. Tower, 18 Pick. 263, in the opinion upon a similar statute to ours: “We think it was the intention of the legislature not to give to the owner of the dog a right to maintain an action for destroying him unless he had in fact given that security to the public which the act required, by causing him at the time to wear a collar with the name and residence of the owner thereon.” Blair v. Forehand, 102 Mass. 145.</p> <p>The question there determined was not whether the defendant had a right to kill the dog, but it was as to whether or not the owner of an unlicensed or uncollared dog could recover for his destruction, no matter how or by whom he might be killed.</p> <p>This statute relating to dogs, is penal and prohibitory in its provisions. No dog under its provisions, can be kept legally, except that it be registered, numbered and licensed annually. The violator of the law is liable to a fine of ten dollars. The plaintiff here was a violator of a prohibitory and penal statute. Being, therefore, a violator of. a prohibitory law, he cannot invoke the law to protect him in its violation, any more than a violator of the law relating to the Lord’s Day can invoke the law to protect him. Section 11 sho^s the intention of the legislature to make the licensed- dog legal property, and a subject of litigation by providing that if any person shall steal, secrete or kill any registered dog, he shall be liable to .the owner in a civil action; and that no action could be maintained to recover for the value of any other dog if -he had any. This affirmative statute, negatives the idea that a person who kills a dog, not so registered, shall be liable; and also the idea that the owner of an unlicensed dog may recover. This affirmative statute relating to recovery implies a negative. “ If a thing is limited to be done in a particular form or manner, it excludes every other mode, and affirmative expressions introducing a new rule, imply a negative.” Sedgwick on Construction of Statutory and Com. Law, p. 31, note A; New Haven v. Whitney, 36 Conn. 373.-</p> <p>“When a statute assumes to specify the effects of a certain provision, it is to be taken that no others were intended.” Perkins v. Thornburgh, 10 Cal. 189.</p> <p>It would be strange for the court to hold that any one may recover for, or be allowed to set a value even, upon a dog which the law forbids him to keep, and where too, a penalty is imposed by law for so doing, especially if when killed the dog is at large, and out of the control of his master or keeper.</p> <p>The statute nowhere says a dog may be killed while in the act of so doing, but it does say if a dog “suddenly assaults,” or is “found worrying,” etc., its life maybe taken. These two are the offenses mentioned in this statute, if the life is so taken while the dog is “outside of the inclosure or immediate care of its owner.” We contend, therefore, that if this dog had been licensed and at liberty to .rove as he pleased, the defendant-would, under the facts disclosed here, have been justified in shooting him. But this dog was not licensed; but was at large trespassing on defendant’s premises and worrying and destroying his domesticated animals. Hodge v. State, 11 Lea, (Tenn.) 528.</p> <p>Under the statute and by the common law, the defendant had the right to kill the dog when found trespassing on his premises, worrying his animals and destroying his property. In this case the act of worrying and shooting were the same, and at the same time. The shooting was done by the defendant for the purpose of protecting his property. 1 Hilliard on Torts, 645, and cases there cited.</p> <p>It has been held that the owner of sheep is justified in killing a dog, which has destroyed some of his sheep, and returned upon his premises apparently for the purpose of destroying others, although the dog at the time he is killed was not in the very act of destroying his property. 1 Hilliard on Torts, 155.</p>

On Report. Petition by the Penobscot Lumbering Association for distribution of a safety fund accumulated under its charter. The case is stated in the opinion.

On Motion and Exceptions by Defendant. This was an action on the case, in which the jury rendered a verdict of $309.08 for the plaintiffs, who claimed that the defendant corporation had been guilty of carelessly and negligently rafting out and delivering to them their logs in the spring and summer of 1893.

<p>On Report.</p> <p>Bill in equity, heard on bill, answer and proofs.</p> <p>The case is stated in the opinion.</p>

<p> Action. Guardian. Ward. Mortgage. </p> <p>A cestui que trust of a mortgage of real estate cannot maintain a writ of entry for possession of the mortgaged premises.</p> <p>A testamentary guardian of infant wards loaned money of liis wards and took as security a mortgage of real estate in favor of himself as such guardian. Held; that the wards cannot maintain a writ of entry for possession of the mortgaged property.</p>

On Exceptions by Dependant. This was an appeal to tbe Superior Court, Cumberland county, from tbe Portland municipal court upon a complaint against the defendant under the provisions of section 39 of chapter 285, of the public laws of 1897, for having in his possession 36 lobsters less than 10 1-2 inches in length.

On Rbpojkt. This was an action of assumpsit on two promissory notes of $2000 each, dated February 15, 1875, given to the plaintiff by W. K. Lancey, and which, with other notes amounting in all to $10,000 were secured by mortgage of real estate in the city of Augusta, Kennebec county.

<p>Agreed Statement.</p> <p>The case appears in the opinion.</p>

<p> Libel. Evidence. </p> <p>In an action of libel, wlierein the alleged libel consisted of a printed advertisement of judgments for sale, posted by the defendant in a public place, it is not competent for a witness called by the plaintiff to give his opinion, in reply to a question by plaintiff’s counsel calling for it, as to the purpose of the defendant in posting the advertisement.</p>

On Motion by Defendants. This was a real action to foreclose a mortgage given by Levi R. Bigelow to John Harlow Bigelow for $1000 and annual interest, dated April 29, 1889, acknowledged May 8, and. recorded October 5, 1889.

<p>Qn Exceptions by Plaintiees.</p> <p>The case appears in the opinion.</p>

On Exceptions by Plaintiff. This was an action of assumpsit, brought before the Auburn municipal court, to recover one installment of ten dollars upon a non-negotiable note given by the defendant to the plaintiffs for the purchase of a sewing machine; and was there tried and appealed to this court, sitting at nisi prius, by the principal defendant, and a default was there entered for $10 damages, with interest from date of the writ.

<p> Accident and Sickness. Insurance. Waiver. Payment. Notice. </p> <p>In an action by the administrator of the insured against an accident insurance company, upon a certificate which provided for the payment to the insured, subject to many conditions and qualifications, of the sum of $10 a week for each week’s disability caused by accident or disease, and seeking to recover the stipulated sum per week from the beginning of the disability to the death, held; that the objections made by the defendant to the maintenance of the action based in part upon non-payment of dues, cannot be sustained, it appearing among other things that there was a waiver; but that the plaintiff has proved only a total disability of the insured, within the terms of the certificate, for a period of three weeks prior to his death.</p>

Agreed Statement. This was an action of assumpsit brought upon an accident insurance policy, issued by the defendant company to the plaintiff. The plaintiff sustained a double fracture of his right arm by reason of an alleged accident to him at the time and place mentioned in the declaration, which he claimed was occasioned by an accident within the meaning of law and the policy by which he was insured.

Agreed Statement. The first of the above named actions was brought in the name of the “Inhabitants of Dexter who prosecute this action by Carrie H. Foster of said Dexter, a citizen of said State of Maine.” The defendant on the first day of the return term filed the following plea in abatement: (omitting formal parts.) And now the said Owen É.

On Report. This was an action of assumpsit brought to enforce the plaintiff’s lien claim for his personal labor upon logs and amounting to twenty-eight dollars.

On Exceptions by Plaintiff. This was a petition of Samuel Knight, and fourteen other taxpayers and residents of Topsham, for a writ of mandamus against the assessors of taxes in that town.

On Exceptions by Defendant. This was an action of assumpsit on account annexed by plaintiff, a corporation located at Portland, against defendants, alleged to be partners in trade at Bar Harbor as Bulger Brothers, for goods sold and shipped to Bulger Brothers, Bar Harbor, between June 1 and June 25, 1897, amounting to four hundred and eighty-four dollars, which goods were received by the defendant Alfred G. Bulger, who was doing business at Bar Harbor under the name of…

On Repobt. Bill in equity, heard on bill, answer and proofs, to vacate a mortgage given by an insolvent debtor. The mortgage was made to the defendant, May 16, 1895, by one William Gould, bis brother, who filed a petition in insolvency, October 31, 1895.

On Report, This was an action of trover in which the plaintiff, as assignee of Edward Ware, an insolvent debtor, sought to recover of the defendant $8,930.55, the value of certain pine, spruce and cedar logs and which he claimed had been sold to said Ware, by one W. H. Clark, prior to the proceedings in insolvency, and by him mortgaged to the defendant bank.

<p>Logs. Driving. JS. S., o. 42, § 6.</p> <p>He who undertakes to drive logs intermixed with his own, at the expense of the owner of them, must drive them reasonably clean to their destination before he can recover compensation therefor. Held; that the plaintiff did not do this, and therefore he cannot recover.</p>

On Exceptions' by Dependant. Tbis was a petition inserted in a writ, brought under R. S., c. 104, §§47 and 48, to compel the respondent to bring an action to try the title, which it is alleged he claims, to certain real estate described in the petition. At the return term the respondent filed a general demurrer, which the presiding justice overruled, and ordered the defendant to answer, to which the defendant duly excepted. The case appears in the opinion.

On Motion and Exceptions by Defendant. This was an action of assumpsit, to recover for pauper supplies furnished to one Joseph W. Hall.

<p>Corporation Note. Pleading. Practice. JR. S., c. 82, § 84.</p> <p>A promissory note, beginning, “We promise to pay,” and signed, “Tbe Sanitary Milk Co., T. A. Huston, Trs.” is tbe several note of tbe milk company and not tbe joint note of the company and its treasurer.</p> <p>Held; that the note is not admissible under a declaration declaring upon it as a joint note of the corporation and its treasurer.</p> <p>In actions of contract against more than one defendant, tbe jury may return a separate verdict as to each defendant, or as to two or more defendants jointly, and judgments shall be entered accordingly.</p>

<p> Sales. Delivery. Pleading. </p> <p>1. An action for the price of goods sold and delivered cannot be maintained until delivery be proved. Proof of tender and refusal is not sufficient.</p> <p>3. If delivery is unconditional, the plaintiff should receive the contract price and a verdict in Ms favor should stand.</p> <p>3. If the delivery is conditional, then the price named in the condition only can be recovered; and a verdict otherwise for the plaintiff must be set aside as against law.</p> <p>4. Actual delivery to, and acceptance by, the purchaser of the goods sued for is essential. The title to the goods may have passed subject only to the vendor’s lien for the price, yet so long as that attaches this form of action does not apply.</p> <p>5. The remedy in such case is breach of the contract of bargain and sale, where the rule of damages in favor of the vendor is not the contract price, but the difference between it and the value of the goods retained, for he should not keep the goods and have their price too.</p> <p>Held; in this case, that an unconditional delivery of the goods, the price of which is sued for, is not proved; and the verdict for the same is therefore erroneous and must be set aside.</p>

<p>On Exceptions by Dependants.</p> <p>Action of assumpsit, on a contract for repairs on the Methodist Episcopal church in Thomaston. Within the time provided by law, the defendants filed a plea in abatement alleging non-joinder of other defendants. To this plea the defendants filed a general demurrer, which was duly joined. Upon hearing, the demurrer was sustained, and defendants took exceptions. The plea, demurrer, and joinder were made part of the case. In case the demurrer was sustained the defendants were to have the right to plead over.</p> <p>(Plea in abatement.) And now tbe said defendants come and defend, etc., when etc. and pray judgment of the writ and declaration aforesaid because they say that the several supposed promises in said writ declared upon, if any such were made, were made jointly with R. B. Copeland, Levi Seavey, W. J. Swift, L. C. Lermond, J. S. Young and Sylvanus Hylex’, and as a committee lawfully appointed by the trustees of the Methodist Episcopal chux-ch of Thomaston, in said county of Knox, who are still living and residing at Thomaston in said county, except W. J. Swift, who resides in Warren in said county, and not by the said defendants alone, and this they are ready to verify. Whex’efore because said trustees ax’e not named in said writ and declai’ation together with the said defendants, they, tbe said defendants, pray judgment of the said writ and that the same may be quashed and for costs.</p> <p>Counsel argued, besides other points, that the plea in abatement is defective because it does not allege that the defendants, as to whom complaint of non-joinder is made, were living within the jurisdiction of the court at the date of the writ. The only allegation in this plea upon that point is, “who are still living and residing at Thomaston in said county, except W. J. Swift, who resides in Warren in said county.” There is no allegation that they were living and residing in Thomaston at the date of the writ.</p> <p>All the precedents except the one found in the Maine Civil Officer, require this. Stephen on Pleading, p. 48; Chitty, p. 270; Story, p, 87; Furbish v. Robertson, 67 Maine, 35; Goodhue v. Luce 82 Maine, 222.</p> <p>It is almost impossible to tell to what or whom the relative pronoun “who,” as used in the plea refers. No one can tell by reading the plea whether it applies to Copeland, Levi Seavey, W. J. Swift, L. C. Lermond, J. S. Young, Sylvanus Hyler, or to somebody alleged to be a committee appointed by certain trustees.</p> <p>The plea in abatement need not allege that said Copeland, and others named in the plea, were living within the jurisdiction of the court at the date of the writ, etc. No court has ever held that it was, provided the plea contains all other necessary averments. In Furbish v. Robertson, 67 Maine, 35, there was no averment that Plummer was alive or that he resided at any time within the jurisdiction of the court. The court said nothing, in that case, about the date of the writ.</p> <p>If only the defendants named in the writ are to be held to answer alone on the promise alleged in the writ to have been made by them, and not the trustees for whom they acted, and cannot at the trial on the merits show that they were merely agents, it will be so by reason of a mere technicality invoked by the plaintiff “ foreign to and regardless of the real merits of the case,” and not by the defendants. The object of a plea in abatement is to early inform the plaintiffs of mistakes or errors of fact alleged, and give him “a better writ.” Brown v. Gordon, 1 Maine, 165.</p> <p>“The object sought by a dilatory plea,” was not “the defeat of the particular action upon some technical ground foreign to, and regardless of the real merits of the case” as stated by the court in Furbish v. Robertson, supra, but was in this case filed for the very purpose of presenting at the trial the real issue on its merits, and for no other purpose. MeGreary v. Chandler, 58 Maine, 537; White v. Gushing, 30 Maine, 267.</p> <p>If the plea does not state specifically that these joint promisors named, were all alive and residents of the county on the date of writ, it does state that they were all alive and residents of the county when the plea was filed, and if they all were alive when the plea was filed, it is probable to say the least, that they were not dead a few days before that time. Averment not necessary. 3 Chitty, p. 900; Maine Civil Officer, 6th Ed. p. 242; Goodhue v. Luce, 82 Maine, p. 223; Stephen on Pleading, 87; 3 Story, 99.</p> <p>The demurrer was filed, not because the plea did not give the necessary information to enable the plaintiff to amend or make a better writ, but for the purpose, by this technical objection, of preventing the defendants from showing at the trial of the cause, that the real defendants were not sued.</p>

' On Exceptions by Plaintiee. II. The first ease was an action of assumpsit, tbe declaration containing counts for money bad and received, account annexed, and an omnibus count, to recover seventy-five dollars paid by the plaintiff to the defendant for a horse on Sunday.

On Report. This was an action for damages for the non-acceptance by the defendants of a car of feed which the plaintiffs allege they sold the defendants through their agent, Raymond O’Brien, and which the defendants refused to accept on account of the long and unreasonable delay in the delivery. No claim of delivery,- or acceptance of any part, or any payment by the defendants was made on account of the feed.

<p>Agreed Statement.</p> <p>The parties agreed upon the following statement of facts :</p> <p>“ Writ, service, note and indorsements thereon to be made part of case. Plaintiff with her husband, George A. Downing, moved to Worcester, Mass., in October, 1887, and he died there May 6, 1894.</p> <p>“Defendant wrote plaintiff’s husband under date of January 12, 1891, and also to the plaintiff under date of January 1, 1895. Defendant also wrote plaintiff by postal card which bears post mark date March 18, 1895. [These letters and postal card are printed below:]</p> <p>“ Defendant filed his petition in insolvency in the county of Franklin, November 5, 1894, and was discharged January 6, 1897.</p> <p>“ The note in suit was not listed in defendant’s list of liabilities in the insolvency court; and was not proved in his estate.</p> <p>“No administration has ever been taken out in the estate of George A. Downing.</p> <p>“ The law court to render such decision as the law and facts require.”</p> <p>[note.]</p> <p>“For value received I promise to pay Geo. A. Downing or order on demand five hundred dollars, with interest at 5 per cent, interest annually.</p> <p>Chesterville, March 2nd, 1885. Thomas J. Wheeler.</p> <p>Mr. Wheeler:</p> <p>It is the wish of Geo. A. Downing for you to pay Mary S. Downing the amount due on this note at his death.</p> <p>Geo. A. Downing.”</p> <p>[indorsements on note.]</p> <p>“Oct. 14, 1887. Paid fifty dollars as interest on the within note. Dec. 6,1888. Received twenty-five dollars. Feb. 7,1889. Rec. twenty-five dollars. Nov. 5, 1890. Rec. twenty dollars. Dec. 26, 1890. Rec. one hundred dollars. March 25, 1891. Rec. twenty dollars. Oct. 10, 1891. Rec. ten dollars. March 24, 1892. Rec. twenty-five dollars. March 4, 1893. Rec. twenty-four dollars. March 6, 1894. Rec. twenty-four dollars, $24.00. Oct. 11, 1894. Rec. twenty dollars, $20.00.”</p> <p>[postal card, bearing post mark date.]</p> <p>“March 18, 1895.</p> <p>I cannot do anything just now,.but the first that I get be it more or less you shall have.</p> <p>Resp’t, T. J. Wheeler.”</p> <p>[LETTERS.]</p> <p>“ Chesterville, Jan. 12, 1891.</p> <p>Jbnend Downing:</p> <p>You may be surprised for me at this late day to ask you such a question as I am going to. I can pay you three or four times over what T owe you, but I cannot without my wife knowing of it and she has forgotten all about it and I dislike to tell her, she is so poorly. The doctor says that she can never be any better than she is now, and liable to grow worse any day. The money that I intended to pay you I cannot get now. I have a bank book at the Peoples Trust at Farmington and one at Augusta. I will make you this offer. I will pay you the interest that is due this spring right away and give you six per cent, for the rest as long as I keep it. Please let me know by return mail just how you feel about it and if you say so, I will draw out the money and send to you the first day I can get some one to stay with my wife.</p> <p>Truly yours, T. J. Wheeler.”</p> <p>“Chesterville, Me., Jan. 1, 1895.</p> <p>it nr T • Mrs. M. J. Downing:</p> <p>I have had to stop business, in other words I have failed up. The estate will pay but a small per cent, on a dollar. The Portland folks got the whole of it. You hold onto the note and in time yon will get all of it, two are doing that way and just as soon as I can I will begin to help you out. If I had thought it was coming this way I would have sent you some soon after I did the other, but then I thought 1 could pull through all right, but I got into a trap and they got the whole. I am very sorry, but what can I do?</p> <p>Respt.,</p> <p>T. J. Wheeler.”</p> <p>The defendant always recognized his bounden indebtedness to plaintiff and promised twice in writing to pay her after the death of her husband, and made her one payment. He is therefore estopped to deny his obligation at this late day. The note was properly indorsed; and if not, there is a subsequent promise in writing to pay her the debt, which makes him a promisor to the plaintiff and for a valuable consideration, as shown by letter of January 1, 1895, and by postal card of March 18, 1895.</p> <p>The indorsement is definite and intelligible and not against public policy. Counsel cited: Abbott v. Holway, 72 Maine, 298; Wyman v. Brown, 50 Maine, 139.</p> <p>Indorsement takes effect only on delivery. Dana v. Morris, 24 Conn. 333.</p> <p>Though delivery may be presumed from possession, such presumption is overcome by the evidence in the case. The form of the alleged indorsement makes it evident that the note was not to pass until death of payee. The letters from debtor relative to payment prior to death of payee were to him, and after death to the plaintiff.</p> <p>There is no evidence to show that plaintiff exercised any acts of ownership prior to death of the payee. The indorsement must import a present intent to transfer note. Story’s Prom. Notes, § 121, and cases cited; Adams v. Blethen, 66 Maine, 19.</p> <p>A delivery for a particular purpose, without intention to transfer property, insufficient. Natter v. Stover, 48 Maine, 163.</p> <p>Delivery cannot be made after death to payee. Olark v. Sigourney, 17 Conn. 511 ; Eoglesang v. Wichaud, 75 Ind. 258.</p> <p>The indorsement is the best evidence that it was the intention of the indorser to pass property in it only after his death. This could legally be done only by will executed as provided by statute.</p>

Agreed Statement. The case appears in the opinion. The negotiation of the note, and the receiving and retaining the money thereon, by the defendants, before the time expired, for the fulfillment of the contract on their part, was an absolute guaranty of performance.

On Motion and Exceptions by Dependants. This was a real action, brought to establish the title to a certain tract of land in the city of Old Town. The defendants pleaded the general issue. Plaintiff claimed title by adverse possession, under color of title, by virtue of quitclaim deeds to Samuel Pratt, under whom the plaintiff claimed as heir.

On Report. This was art action of debt, to recover the sum of $924.00, which the plaintiff claimed was due to it on September 28, 1897, for water service rendered by it to the City of Waterville under its contract of January 21, 1890.